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HomeMy WebLinkAbout1.0 ApplicationLOYAL E. LEAVENWORTH KEVIN L.PATRICK JAMES S. LOCHHEAD PETER A. MILWID . • LEAVENWORTH, PATRICK 6 LOCHHEAD, P. C. ATTORNEYS AT LAW April 19, 1983 Mr. Dennis Stranger Garfield County Planning Department 2014 Blake Avenue Glenwood Springs, CO 81601 1011 GRAND AVENUE P. O. DRAWER 2030 GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (303) 945-2261 Re: Canyon Creek Estates Final Plat Submittal Dear Dennis: Submitted herewith is the Final Plat for the Canyon Creek Estates PUD. These materials are submitted pursuant to Section 4.03 of the County Subdivision Regulations. This Final Plat Application is accompanied by a subdivision review fee of $123, as required by Section 6.00 of the Subdivision Regulations. Additionally, this Final Plat is submitted pursuant to Section 4.12.03 of the Garfield County Zoning Resolution of 1978. On March 7, 1983, by Resolution No. 83-43, the Garfield County Commissioners approved the Preliminary Plan Application for the development, subject to sixteen conditions to be completed prior to final plat approval. All of these conditions either have been satisfied, or will be satisfied prior to final plat approval. Attached is a list entitled "Changes and Supplemental Data to Preliminary Plan for the Canyon Creek Estates PUD." This list identifies how each of the preliminary plan conditions has been satisfied, and any changes in the preliminary plan. Except as shown in the attached list, all materials previously sub- mitted as the Preliminary Plan Application remain applicable to final plat. In order to obtain an easement for the roadway along the westerly portion of the development, pursuant to condition 11 of Resolution No. 83-43, we are submitting herewith a subdivision exemption application and are requesting an amendment to the Zone District Resolutions Nos. 81-316 and 83-46. This amendment to the legal description of the PUD will result in the con- veyance of about 0.75 acres of the PUD to the adjoining lan- downer (Wright), who will convey a road easement to the Lazier -Sills Partnership and to other adjoining property owners (McKennis/Williams), for the portion of the road traversing his property. The legal description shown on the Final Plat is the amended legal description, excluding the portion of the PUD to • • LEAVENWORTH, PATRICK 6- LOCHHEAD, P. C. Mr. Dennis Stranger April 19, 1903 Page 2 be conveyed to Wright-, and the property to be conveyed to Wright is indicated by a dashed line on the Final Plat. We are also requesting a minor change in the zone district regulations, to reflect the fact that Lot 19 is now 0.328 acres in size. This is an amendment to Paragraph A.4 of Exhibit B to Resolution No. 83-26, from "0.40 acres" to "0.328 acres." Additionally, lot references in the zone district regulations should refer to "Final Plat" rather than to "Preliminary Plan." Attached is a copy of amended zone district regulations which, if approved, can be attached to the resoultion as was done with Resolution No. 83-46. Any corresponding changes in density, average lot sizes, etc. is reflected in the Final Plat submit- tal. The Lazier -Sills Partnership requests that hearings on the Final Plat, zone district and text change amendment, and sub- division exemption application be heard on the same day. We are currently aiming for May 23. We understand the zone district and text change amendments must be held in accordance with C.R.S. 1972, 00-28-116, and are anticipating providing thirty (30) days public notice. If you have any questions or need any further information, please do not hesitate to give me a call. JSL:ljd Very truly yours, LEAVENWORTH, PATRICK & LOCHHEAD, P.C. 4 'James Lochhead • LP. ZANCANELLA, Chief JAMES MASON, Asst. Chief MARTIN ZEMLOCK, Captain W. LAPLANTE, Secy. Treas. JAMES BLANCO, Lieut. JACK JONES, Lieut. Glenwood Springs Fire Department Member of Colorado State Firemen's Association 806 Cooper GLENWOOD SPRINGS, COLORADO 81601 Garfield County Commissioners 201 8tb Street Glenwood Springs, Colo. 81601 MAY 311983 Ley 114444 5/27/83 Dear Sirs, I'am writing; you by request from 1•;r. Jimmy Sills in reEuard to the Canyon Creek F.U.D. Concerning their fire hydrants, we will still be requiring the additional hydrants noted on our agency comments submitted to the Garfield County Planning Department. Based on the recommended standards of the Insurance Services Offices for hydrant locations, we feel the additional hydrants are necessary to adequately cover this development. Please feel free to call if we can be of further assistance. Sincerely, James S. Mason Fire Inspector cc. Jimmy Sills Bill Thompson Dave Grounds .4d-,‘?' 3 // 7- 2 ‘- t 2 . 110 public Service Company C ©ll©i �¢I© P.O. Box 152, Rifle, CO 650 May 27, 1983 Lazier - Sills Joint Venture Box 981 Glenwood Springs, CO. 81601 Gentlemen: NI (311983 U) C PLS This letter is to substantiate the fact that the proposed Canyon Creek Estates Subdivision is within the certificated service area of Public Service Co. of Colorado, that easements and right-of-ways as shown on the preliminary plat are satisfactory, and that the area will be served in accordance with the Rules and Regulations of Public Service Co. of Colorado currently on file with the Colorado Public Utility Commission. Sincerely, Wally deBe• e, Co.1 er Service Representative Public Service Cr of Colorado WdeB/lb MAY 3 1 1983 maw co. eta Garfield County Commissioners Glenwood Springs, Colorado Gentlemen; Please be Avised that Mountain Bell is in agreement with the utility e_sements provided ,within the Canyon Creek PUD. Thank you, Assistant Mafiager Mountain Bell LOYAL E. LEAVENWORTH KEVIN L. PATRICK JAMES S. LOCHHEAD PETER A. MILWID • LEAVENWORTH, PATRICK 6. LOCHHEAD, P C. ATTORNEYS AT LAW May 20, 1983 Mr. Mark Bean Garfield County Planning Department 2014 Blake Avenue Glenwood Springs, CO 81601 Re: Canyon Creek Estates PUD Dear Mark: 1011 GRAND AVENUE P. O. DRAWER 2030 GLENWOOD SPR NGS,COLORADO 81601 TELEPHONE: (303) 945-2261 11:777. M 2J Enclosed for your review is a copy of the Referee's Ruling in the application for approval of the augmentation plan in this matter. There is a 20 day protest period, commencing May 18, and we anticipate the Court will sign the ruling and the decree will be final sometime between the middle and end of June. Although the final plat hearing is scheduled for June 6, it is my understanding from Steve Zwick that, assuming everything else is in order, the hearing can occur, and the plat can be executed and recorded upon issuance of the final decree. If this is a problem, please advise me immediately. JSL:ljd Encs. cc w/encs: Very truly yours, LEAVENWORTH, PATRICK & LOCHHEAD, P.C. Steven Zwick, Esq. Jimmy M. Sills James S. Lochhead • • IN THE DISTRICT COURT IN AND FOR WATER DIVISION NO. 5 STATE OF COLORADO Case No. 82CW172 IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF THE LAZIER/SILLS PARTNERSHIP IN THE COLORADO RIVER OR ITS TRIBUTARIES IN GARFIELD COUNTY FILO �,� �7 T t / L ^.0 1 r �.ir. �� v . L..` , r 1 81983 MARIE Tr;:_/'. RULING OF THE REFEREE The above entitled Application was filed on July 21, 1982, and was referred to the undersigned as Water Referee for Water Division No. 5, State of Colorado, by the Water Judge of said Court on the 12th day of August, 1982, and was re-referred to the Water Judge of Water Division No. 5, State of Colorado on October 19, 1982, and was subsequently re-referred back to the undersigned as Water Referee by the Water Judge on March 7, 1983, all in accordance with Article 92 of Chapter 37, Colorado Revised Statutes 1973, known as the Water Right Determination and Administration Act of 1969. The undersigned Referee having made such investigations as are necessary to determine whether or not the statements in the Application are true and having become fully advised with respect to the subject matter of the Application does hereby make the following determination and Ruling of the Referee in this matter, to -wit: 1. The statements in the Application are true. 2. The name and address of the Applicant is• the Lazier/ Sills Partnership, c/o Leavenworth, Patrick & Lochhead, P.C., P. O. Drawer 2030, Glenwood Springs, Colorado 81602. 3. Timely and adequate notice of the filing of this Application was given as required by law. 4. A Statement of Opposition was filed to this Application by Mark E. Shumate and Entries of Appearance were filed by the Board of County Commissioners of the County of Pitkin, Colorado, and by Adeline K. Jacobson and James W. Johnson. This Statement of Opposition and the Entries of Appearance were withdrawn pur- suant to Stipulations with the Applicant the terms of which are incorporated into this Ruling as set forth below. -1- • • APPLICATION FOR WATER RIGHTS 5. The name of the structure is Canyon Creek Well No. 1. 6. The source of the water is a well having a depth of 100 feet and being tributary to the Colorado River. 7. The Well is located in the East One-half of the Northwest Quarter of Section 36, Township 5 South, Range 90 West of the 6th Principal Meridian, whence the North Quarter Corner of said Section 36 bears North 30°23'26" East, 1288.97 feet. 8. The use of the water is for irrigation, domestic, com- mercial, stock watering, fire protection, aesthetics, fish and wildlife propagation, storage for subsequent application to beneficial use, and all other beneficial uses. 9. The date of initiation of appropriation is January 31, 1981. 10. The water has not yet been put to beneficial use. 11. The amount of water claimed is 100 gallons per minute of time (0.22 cubic foot of water per second of time), con- ditional. APPLICATION FOR CHANGE OF WATER RIGHTS 12. Name of structure: Avalanche Canal and Syphon, decreed in Case No. 4613 in the District Court in and for the County of Garfield and the State of Colorado on June 20, 1958, with an appropriation date of April 22, 1957, for 830 c.f.s., con- ditional, from Avalanche Creek and the Crystal River for the generation of electric energy, domestic and municipal purposes, industrial purposes including but not limited to the production of oil from shale, irrigation purposes, and stock watering pur- poses. 13. Decreed point of diversion: A. Headgate No. 1 being the initial point of diversion of said Avalanche Canal and Syphon is located on the right bank of the Crystal River at a point whence the witness corner of the Southwest Corner of Section 9, Township 10 South, Range 88 West of the 6th Principal Meridian bears North 3°9' West 546 feet. Said point is located 4730 feet from the North Section line and 50 feet from the West Section line of said Section 9 and is located in the Southwest Quarter of the Southwest Quarter of said Section in Pitkin County. B. Headgate No. 2 being the second point of diversion of said Avalanche Canal and Syphon is located on the right bank of Avalanche Creek at a point whence the West Quarter Corner of Section 28, Township 9 South, Range 88 West of the 6th Principal Meridian bears North 67°15' West a distance of 4538.1 feet. Said point is located 4570 feet from the North Section line and 4200 feet from the West Section line of said Section 28. and is located in the Southeast Quarter of the Southeast Quarter of said Section in Pitkin County, Colorado. 14. The Applicant proposes to divert .2 c.f.s. of the above -referenced water right at the alternate point of diver- sion of the Canyon Creek Well No. 1 as referenced in Paragraph 7 above and to use said water right for the purposes set forth for the Canyon Creek Well No. 1. APPLICATION FOR APPROVAL OF PLAN FOR AUGMENTATION 15. Name of structure to be augmented: Canyon Creek Well No. 1 as set forth above, which will divert water under its owri -2- • • water right as applied for herein and under the Avalanche Canal and Syphon water right as changed pursuant to this Decree to the alternate point of diversion of the Canyon Creek Well No. 1. 16. The water rights to be used for augmentation are as follows: Ruedi Reservoir as decreed in Civil Action No. 789 in the District Court in and for the County of Garfield, State of Colorado, on June 20, 1958, for 102,369 acre-feet for irriga- tion, municipal, industrial, domestic, generation of electric energy, stock watering, and piscatorial uses, with an appropriation date of July 29, 1957. Said Reservoir is located in and near Sections 7-9, 11, 14-18, Township.8 South, Range 84 West of the 6th Principal Meridian. 17. The Applicant proposes a residential subdivision located on approximately 75 acres, generally known as Wolverton Mesa, located near the confluence of Canyon Creek with the Colorado River about 8 miles west of Glenwood Springs, Colorado, and located within portions of Sections 25 and 36, Township 5 South, Range 90 West of the 6th Principal Meridian. This pro- perty is being developed into dwelling units for about 60 fami- lies consisting of 28 single-family units, 30 duplex units, and 11 multi -family units. Appropriate deed restrictions will restrict lawn and garden irrigation of 3,000 square feet per dwelling unit on each of the single-family lots, 1,500 square feet per unit on each of the duplex lots, and 1,300 square feet per dwelling unit on each of the two multi -family lots. Additionally, up to 4.6 acres of common open space may be irri- gated for a total irrigation requirement of not more than 7.9 acres. The Applicant also proposes an equestrian community center .with approximately 2,000 square feet of building area and two toilets and provisions for the keeping of up to 17 horses. Consumptive use criteria are based on the following assumptions: A. The single-family and duplex dwelling units will contain an average of 3.5 people per unit. The multi -family dwelling units will contain an average of 3.0 people per unit. B. In-house water demands will average about 100 gallons per capita per day. C. Two single-family units will be on septic tank and leach field systems and consumptive use will average 10 per- cent (10%) of in-house demand for these units. D. Four single-family units will be on evaporative disposal systems and consumptive use will be 100 percent (100%) of the in-house demand. E. All remaining units will be serviced by a centra- lized sewage treatment system and consumptive use will average 5 percent (5%) of the total in-house demand. F. Based on a Blaney-Criddle computation, the con- sumptive use resulting from the irrigation of lawns will average 1.67 acre-feet per acre during the irrigation season, extending from May 1 through October 15. G. Each horse will consume 12 gallons per day, and the community center will consume the equivalent of one single- family dwelling unit. 18. Based on the above -referenced criteria, the total water demand in the subdivision will average 43 acre-feet per year. The annual depletion associated with this subdivision will average 16.2 acre-feet per year, in accordance with the following schedule: Month • • Demand Depletion ac-ft/c.f.s. ac-ft/c.f.s. January 2.11/.034 0.25/.004 February 2.11/.038 0.25/.005 March 2.11/.034 0.25/.004 April 2.11/.035 0.25/.004 May 4.12/.067 1.76/.029 June 5.67/.095 2.92/.049 July 7.20/.117 4.07/.066 August 6.48/.105 3.53/.058 September 4.39/.074 1.96/.033 October 2.37/.039 0.44/.007 November 2.11/.035 0.25/.004 December 2.11/.034 0.25/.004 Total (acre-feet) 42.89 16.18 19. In addition to the above, the Applicant will provide water service to two single-family dwelling units located out- side the proposed development from the Canyon Creek Well No. 1 and the central water supply system. The property on which said units may be located is currently owned by the Appearants Adeline K. Jacobson and James W. Johnson, whose address is 45885 Highway 6 and 24, Glenwood Springs, Colorado 81601. The Applicant shall provide at its sole expense water service from the Canyon Creek Well No. 1 to the property shown on Exhibit A, attached hereto and incorporated herein by this reference, in order to prevent material injury to the wells currently ser- vicing the property. This provision is limited to providing the property shown on Exhibit A with adequate treated water for two dwelling units (either of which may be a single-family or a duplex dwelling unit as those terms are presently used in this plan for augmentation) and for no more than a total of 3,000 square feet of lawn and garden irrigation located on said pro- perty. In any event, each of these dwelling units shall receive no less water than any other comparable dwelling units served under the water service plan set forth in this plan for augmen- tation. Arrangements for actual hookup for each of these dwelling units shall be made only upon reasonable notice given to the owner of that dwelling unit and to the Applicant. There shall be no assessment by the Applicant for connecting these dwelling units on this property to the water system, and any water service provided under this agreement shall be provided free of charge for the owners of said property and no main- tenance or service fees or assessments may be charged by Lazier/Sills or any homeowners association in Canyon Creek Estates for or in connection with any water service. These dwelling units will be serviced by septic tank and leach field sewage disposal systems. At such time as water service is pro- vided to these dwelling units, the common irrigated open space within the development shall be reduced to 4.4 acres, and the water demand and depletions to be augemtned under this plan will occur in accordance with the following schedule: Month Demand Depletion ac-ft/c.f.s. ac-ft/c.f.s. January 2.18/.035 0.26/.004 February 2.18/.039 0.26/.005 March 2.18/.035 0.26/.004 April 2.18/.037 0.26/.004 May 4.16/.068 1.75/.028 June 5.69/.096 2.89/.049 July 7.21/.117 4.03/.066 August 6.49/.106 3.49/.057 September 4.43/.074 1.95/.033 October 2.44/.040 0.46/.007 November 2.18/.037 0.26/.004 December 2.18/.035 0.26/.004 Total (acre-feet) 43.50 16.13 • • 20. The Applicant may provide water service to other dwelling units located outside the proposed development only upon filing an application in the District Court in and for Water Division No. 5 to amend the plan for augmentation herein. 21. In the event that the operation of Canyon Creek Well No. 1 causes material injury to the well currently located on the property owned by the Objector Mark E. Shumate and described ori Exhibit B, attached hereto and incorporated herein by this reference, within one year from the date of the issuance of the last certificate of occupancy for the Canyon Creek PUD as pre- sently approved by Garfield County, the Lazier/Sills Partnership, its successors and assigns, shall' supply water to the property described on Exhibit B for the use of one single- family residence and for the irrigation of not more than 3,000 square feet of lawn and gardens. Water supply shall be equal in quantity and quality to existing service from Shumate's well. If such service is required, Lazier/Sills Partnership, its suc- cessors and assigns, shall pay for and install a water line including necessary appurtenances, such as pressure relief valves, surge arrestors, and other equipment deemed necessary by a licensed engineer to provide water service at proper pressures, to run from the Canyon Creek Estates water distribu- tion system to the lot line of the property described in Exhibit B, and Shumate shall pay any and all costs related to additional water lines from the lot lime to the residence to be serviced or any and all other costs associated with use of the water on the property. The parties agree that the water so provided shall be provided free of charge and that no assessments or operation and maintenance charges shall be made against Shumate or his suc- cessors. in interest by Lazier/Sills Partnership or its suc- cessors in interest, for any portion of the Canyon Creek Estates Water System or water line and appurtenances to the lot line of Shumate's property. "Material injury" shall be defined as significant changes in water quantity, quality or availability in Shumate's well, as determined by a licensed engineer chosen by Shumate, his successors or assigns, and a licensed engineer chosen by Lazier/Sills, its successors and assigns. In the event said engineers disagree, they shall chose a third licensed engineer whose determination shall be final. Any .such water services provided herein should be made pursuant to an amendment to this decree as provided, in Paragraph 20 hereof. 22. The Applicant has included the property for the pro- posed development herein into the boundaries of the West Divide Water Conservancy District, by the Inclusion Order dated June 1, 1982, in Civil Action No. 5584, in the District Court in and for the County of Garfield, State of Colorado, and has obtained a Water Allotment Contract with the West Divide Water Conservancy District pursuant to C.R.S. 1973, §37-45-131 (hereinafter referred to as the "Allotment Contract"). A copy of said contract has been placed in the Court file in this case. Under the terms of said contract, the West Divide Water Conservancy District has allotted 0.2 cubic feet of water per second of time from the District's direct flow water right as decreed to the Avalanche Canal and Syphon, referenced above, for use when the Applicant's 1982 underground water right, as set forth above, decreed to the Canyon Creek Well No. 1 is out of priority. When these direct flow water rights are not in priority, the District will be obligated to release for the Applicant up to 13.2 acre- feet per year of storage water owned or controlled by the District in order to replace out of priority consumptive use under the proposed development as set forth above. The West Divide Water Conservancy District has executed a contract with the United States Department of Interior Bureau of Reclamation dated May 13, 1982, Contract No. 2-07-70-W0547, a copy of which contract has been placed in the Court file in this case. Pursuant to the terms of the Allotment Contract, the District will exercise its rights under its Contract with the United States to cause releases of water from Ruedi Reservoir at such times as the above-mentioned direct flow rights are out of priority and in such amount as is necessary to replace out-of- • • priority consumptive use under the proposed development. The requirement for a release of 13.2 acre-feet represents the total consumptive use for the proposed development, during such times as the water rights to be used through the Canyon Creek Well No. 1 are estimated to be out of priority and includes a 10 per- cent (10%) allowance for transit loss between Ruedi Reservoir and the confluence of Canyon Creek and the Colorado River. Water shall be released by the United States Department of Interior, Bureau of Reclamation from Ruedi Reservoir at the direction of the Division Engineer for Water Division No. 5. 23. The direct flow decrees of the West Divide Water Conservancy District are held in the name of the Colorado River Water Conservation District and the ability of the West Divide Water Conservancy District to allot a direct flow decree to the Applicant may be dependent upon the consent of the Colorado River Water Conservation District. In the event such consent is not forthcoming and until such time as said consent is forth- coming, or if for any other reason the Applicant is not able to divert water at the Canyon Creek Well No. 1 under the Avalanche Canal and Syphon water right, the augmentation contemplated by Paragraph 22, above, shall not take effect, and this plan for augmentation shall operate in accordance with Paragraph 24, below. 24., In the event that the consent by the Colorado River Water Conservation District to make the allotment of the Avalanche Canal and Syphon water right is not given and until such time as said consent is given, or if for any other reason the Applicant is unable to divert water at the Canyon Creek Well No. 1 under the Avalanche Canal and Syphon water right, the water supply through the Canyon Creek Well No. 1 will be obtained only through the water right adjudicated in this decree to the Canyon Well No. 1 as set forth above. In such event the West Divide Water Conservancy District shall cause to be released up to 18.0 acre-feet of water per year from Ruedi Reservoir to be released pursuant to its contract with the United States as referenced above. This figure represents the total year-round depletion associated with the proposed develop- ment and includes a 10 percent (10%) allowance for transit losses between Ruedi Reservoir and the confluence of Canyon Creek and the Colorado River. Water shall be released by the United States Department of Interior, Bureau of Reclamation from Ruedi Reservoir on a year-round basis at the direction of the Division Engineer for water Division No. 5. 25. Pursuant to its Allotment Contract, the West Divide Water Conservancy District may cause releases of water from storage to be made from other facilities which the District may construct or obtain so long as the District is able to supply water in the same amounts and at the same time as provided under its contract with the United States Department of Interior. The Applicant and the West Divide Water Conservancy District may substitute alternate places of storage pursuant to said Allot- ment Contract so long as the District is able to cause releases of water to be made to the Colorado River at its confluence with Canyon Creek at the same times and in the same quantities as water was theretofore made available by releases from Ruedi Reservoir. 26. In addition to the demand/depletion schedules set forth above, the Applicant will upon request supply a schedule of water requirements, depletions, and required water releases to the West Divide Water Conservancy District the United States Department of Interior Bureau of Reclamation, and to the Division Engineer so that water may be released from Ruedi Reservoir or from such other sources as the District may construct or obtain at the time and in the manner as determined by the Division Engineer in order to replace otherwise out -of - priority depletions by the proposed development and in order to prevent injury to other vested water rights. • • 27. The Applicant will install and maintain such measuring gauges as may be required by the Division Engineer to facilitate the administration of this plan for augmentation and to insure compliance herewith. 28. The plan for augmentation herein shall be sufficient to permit the continuation of diversions under the water rights decreed to the Canyon Creek Well No. 1 herein when curtailment would otherwise be required to meet a valid senior call for water, to the extent that the Applicant shall provide replace- ment water necessary to meet the lawful requirements of a senior diverter at the time and location and to the extent that the senior would be deprived of its lawful entitlement by the Applicant's diversion. The State Engineer shall curtail all out -of -priority diversions, the depletions from which are not so replaced as to prevent injury to vested water rights. The Referee, therefore, does conclude that the above - entitled Application should be granted as follows: A. The above -entitled Application for Water Rights for the Canyon Creek Well No. 1 should be granted and 0.22 cubic foot of water per second of time (100 g.p.m.) is hereby awarded to said well for irrigation, domestic, commercial, stock watering, fire protection, aesthetics, fish and wildlife propagation, storage for subequent application to beneficial use and all other beneficial uses, with an appropriation date of January 31, 1981, conditional, pro- vided always that said 0.22 cubic foot of water per second of time is on the condition that said quantity of water be applied to a beneficial use within a reasonable time; sub- ject, however, to all earlier priority rights of others and to the integration and tabulation by the Division Engineer of such priorities and changes of rights in accordance with law. Application for a quadrennial finding of reasonable diligence shall be filed in April of 1987 and in April.of every fourth calendar year thereafter so long as Claimant desires to maintain this conditional water right or until a determination has been made that this conditional water right has become an absolute water right be reason of the completion of the appropriation. B. A change of water rights and alternate point of diversion shall be established for 0.2 c.f.s. of the i • Avalanche Canal and Syphon water right as described in Paragraph 12, above, at the location described in Paragraph 7, above, and said water right may be used for irrigation, domestic, commercial, stock watering, fire protection, aesthetics, fish and wildlife propagation, storage for sub- sequent application to beneficial use, and all other benefi- cial uses. C. The plan for augmentation as described in Paragraph 15 through 28, above, should be granted. Said plan meets the statutory criteria as set forth in C.R.S. 1973, 07-92-103(9) and the operation of said plan is one contemplated by law, and the operation of said plan will not result in injury to the vested water rights of others. D. The Office of the State Engineer is hereby ordered to issue a well permit for the Canyon Creek Well No. 1 sub- ject to the terms of the plan for augmentation as set forth herein. It is accordingly ORDERED that this Ruling shall be filed with the Water Clerk and shall become effective upon such filing subject to judicial review pursuant to C.R.S. 1973, 07-92-3U4. It is further ORDERED that a copy of this Ruling shall be filed with the appropriate Division Engineer and the State Engineer. Done this / day of 1983. BY THE ( ' A4x. Eofgrar er Referee, Water Div. No. 5 tate of Colorado • • No protest was filed in this matter and accordingly the foregoing Ruling is confirmed and approved and is made the Judgment and Decree of this Court. This matter shall be subject to reconsideration on the question of injury to the vested rights of others for a period of five years pursuant to C.R.S. 1973, *37-92-304(6), and in setting forth said period, the Court hereby finds and concludes that there is no water right which is being transferred from historic use for augmentation purposes and that it is anticipated by the Applicant at this time that the commencement of the proposed development and of diversions for the Canyon Creek Well No. 1 will commence within one year from the date of this decree. LwJ _ Vii'_/8"- _f " 4�n / vim. 1") Water Judge -9- • EXHIBIT � A.' A parcel of land in the E`INW'-t of Section 36, Township 5 South, Range 90 West of the 6th P.M. Said parcel being more particularly described as follows: BEGINNING at a point on the North right of way line'bf Highway 6 '& 24, whence the NW corner of said Section 36 bears N. 54034`04" W. 2440.64; thence N. 05°14'16" W. 393.98 feet to the South Boundary of the Old County Road; thence along said boundary N. 80°04'52" E. 86.57 feet; thence S. 05°35'03" E. 404.49 feet to the North right of way line of Highway 6 & 24; thence along said right of wny line S. 86°58'43" W. 88.79 feet to the point of beginning. EXHIBIT. B BOA �04 APR Ilse) veocrc� i a _ k.. K.... �►cPF t lu: N, . ! Mi.ldrad Aladarf, Reoorder W� J F- Z L L L. oZ WARRANTY DEED • 11 546 rd6 , Y, 4,%-'k 1 19BU MP MOM= in STEVEN C. LAVEN and DOROTHY ANN LAVEN, whose 46051 Highway 6 6 24, Glenwood Springs, CO 81601, County of Garfield and State of Colordo, for TEN OTHER GOOD AND VALUABLE CONSIDERATION, in hand pa sell and convey to MARK E. SHUMATE and DONNA LEE whose address is 1608 Cooper Avenue, Glenwood Spr 81601, of the County of Garfield and State of Col joint, tenancy and not in tenancy in common, the f described real property situate in the County of State of, Colorado, to -wit: '5', address is of the DOLLARS AND id, hereby SHUMATE, ings, CO orado, in olloving Garfield and Lot 2, Block 1, River View Subdivision, as amended. with all its„appurtenances and warrant the title to same subject to governmental rules and regulations, U.S. Patent reservations and exceptions, easements and rights of way of record or situate and in use, prior mineral reservations, general property taxes of a current nature, Protective Covenants for River View Subdivision recorded as Document ilo. ,.215023 in Book 336 at Page 391 of the Garfield County "records, and the effect of the Articles of Incorporation of ;River View Subdivision Water System, Inc., a not for profit rcorportion, recorded as'Document No. 252112 in Book 425 at (Page 574 of the Garfield County ecords. Signed this St day of April 1980. STATE OF COLORADO COUNTY OP GARFIELD "jjlIday ofApril DOROTHY ANN LAVEN. teven C. Leven Dorothy AnLaven )ss. ) e foregoing instrument was acknowledged before me this A.D. 1980, by STEVEN C. LAvEN and Witness my hand and official My commission expires: �.-a seal. Notary Public Roaring Fork Sch Bax 820 Glenwood Springs, Colorado 81602 Telephone (303) 945-6558 APR 2 i 1383 CIrUe:i (w�`u¢; Iwu�V�Lr1J NICHOLAS R. MASSARO, Superintendent DWIGHT L HELM, Assistant Superintendent ROBERT D. LAFFOON, Assistant Superintendent, Business Gani,Le,ed County Commi6.Loneits P. O. Sox 640 GPenwood SpitLng's, CO 81602 RE: Canyon Creek Esta -ens Lazieit-StLbs JoLvit Vevitune, Ownetus Dean Comm s,Loneius : Apn,i,e 20, 1983 P.eeaze be advi6ed that the Roatc,Lng Fotk Schoo.e Diz'tc.Lct RE -1 haz agreed with the deveeope Canyon Cnee{z Btateis that the money -Ln £.Leu o4 propetty donation ,ins to be at the nate o,6 one hundred 6tigy doUarxs ($150) pet tieing unit. In the above named deve.eopmewt it iA our undmstanding that s.Lx-y (60) £ civ.Lng uw%tts are p.eanned. Thene4ore, we ane reque6ing than an amount o4 wine thowsand doteatos ($9,000) be depo&sited with the County Tnecounetc. S.Lncete,ey yowls ti o.ea6 R. Mates aro NRM/mw • EXHIBIT C • Application to West Divide Water Conservancy District for Water Allotment Contract (Pursuant to C.R.S. 1973, 37-45-131) Applicant, LAZIER -SILLS PARTNERSHIP, a Colorado general partnership, hereby applies to the West Divide Water Conservancy District, a political subdivision of the State of Colorado, organized pursuant to and existing by virtue of C.R.S. 1973, 37-45-101, et seq., for an allotment contract to beneficially and perpetually use the water rights owned, leased, or hereafter acquired by the District. By execution of this application, Applicant hereby agrees to the following terms and conditions: 1. Water Rights: Applicant shall own water rights at the point of diversion herein, which will be supplemental by waters leased herein. 2. Quantity: The quantity herein applied for by the Applicant is 0.2 cubic feet per second of water at the Applicant's point of diversion from the District's direct flow water rights and, when water is unavailable for diversion pur- suant to administration by the Colorado State Engineer during periods when the beforementioned direct flow water right is not in priority, the District shall release up to 13.2 acre-feet per year of storage water for the Applicant owned or controlled by the District. It is understood that any quantity allotted to the Applicant by the District pursuant to its direct flow water right will be limited by the priority of the District's decrees, and that any quantity allotted will only be provided so long as the Applicant fully complies with all of the terms and conditions of this contract. The District and the Applicant recognize that the District's decrees are in the name of the Colorado River Water Conservation District, and the ability of the District to allot a direct flow decree to the Applicant may be dependent on the consent of the Colorado River Water Conservation District. In the event such consent is not forth- coming when the water is needed by the Applicant, the Applicant shall be responsible for obtaining other direct flow water rights, and, in such event, the District shall release up to 18.0 acre-feet per year of storage water for the Applicant owned or controlled by the District during times when said water right is not in priority. At such time as the District does acquire the ability to allot its direct flow rights as herein provided, such allotment shall be made to the Applicant, and upon obtaining by the Applicant of a decree for change in point of diversion for said direct flow right to his point of diversion, the District's obligation to deliver storage water as herein provided shall be reduced to 13.2 acre-feet per year. In either • • event, if at any time the Applicant determines it requires less water than those amounts herein provided, it may so notify the District in writing, and the amount of water allotted under this contract shall be reduced in accordance with such notice. 3. Beneficial Use and Location of Beneficial Use: Any and all water allotted Applicant by the District shall be used for the following beneficial use or uses: Municipal, domestic and related uses or irrigation and commercial (except Ruedi water which is not available for irrigation and commercial). Applicant's beneficial use of any and all water allotted shall be within or through facilities or upon land owned, leased, operated, or under Applicant's control. Such facilities or lands serviced will be located entirely within the boundaries of the District. 4. Decrees and Deliver: The water provided pursuant to the District's direct flow right shall be from the Avalanche Canal and Siphon water right, decreed in Civil Action No. 4613 in the District Court in and for Garfield County, or other decrees hereafter acquired by the District. Exchange releases made by the District out of storage from Ruedi Reservoir or other works and facilities of the District shall be delivered to the Applicant at the outlet works of said storage facilities and release of water at such outlets shall constitute performance of the District's total delivery obligation. Delivery of water by the District from Ruedi Reservoir shall be subject to the District's lease contract with the United States Bureau of Reclamation. Furthermore, the District hereby expressly reser- ves the right to store water and to make exchange releases from structures that may be built by the District in the future, so long as the water service to the Applicant is not impaired by said action. Any quantity of Applicant's allocation not deli- vered to Applicant by November 1st of each year shall revert to the water supplies of the District. 5. Alternate Point of Diversion: Requests for alternate points of diversion of the District's water rights described in Paragraph 3 above may be required in order to provide Applicant the water service contemplated hereunder. The District reserves the exclusive right to review and approve any conditions which may be attached to judicial approval of said alternate point of diversion as contemplated or necessary to serve Applicant's lands. Applicant acknowledges and agrees that it shall be solely responsible for the procedures and legal and engineering costs necessary for any changes in water rights contemplated herein and further agrees to indemnify the District from any costs or losses related thereto. Applicant is solely respon- sible for providing works and facilities necessary to obtain/divert the waters at said alternate point of diversion and deliver them to Applicant's intended beneficial use. If, as -2- • • a result of terms and conditions imposed upon a decree awarding an alternate point of diversion as herein described the Applicant does not obtain 0.2 c.f.s. at his point of diversion, the District shall allot from the decrees set forth in Paragraph 3 such additional amount to the Applicant as is necessary to allow for the diversion of 0.2 c.f.s. at the Applicant's point of diversion. Irrespective of the amount for water actually transferred to the Applicant's point of diversion, the Applicant shall make annual payments to the District based upon the amount of water allotted. 6. Annual Payment: Annual payment for the water service described herein shall be determined by the Board of Directors of the District at a per acre-foot rate to be determined annually by the Board. The initial annual payment shall be made, in full, within thirty (30) days after the date of notice to the Applicant that the initial payment is due. Said notice will advise the Applicant, among other things, of the water delivery year to which the initial payment shall apply and the price which is applicable to that year. Annual payments for each year thereafter shall be made by the Applicant on or before each March 1. If an annual payment is not made by the due date, written notice thereof will be sent by the District to the Applicant at the following address: c/o Leavenworth, Patrick & Lochhead, P.C., P.O. Drawer 2030, Glenwood Springs, CO 81602, or to such address as may be designated by the Applicant in writing. All parties within the District allotted water pur- suant to the powers of the District shall be treated uniformly for all parties with similar uses. If payment is not made within ten (10) days after the date of said written notice, Applicant shall have no further right, title or interest under this contract; and the allotment of water, as herein made, shall be transferred, leased, or other- wise disposed of at the discretion of the Board of Directors of the District. In the event water deliveries hereunder are made in coopera- tion with some other person, corporation, quasi -municipal entity, or governmental entity, said person, corporation, quasi- municipal entity or governmental entity is hereby authorized to curtail water service to Applicant without liability to the District, or said other person or entity, in any respect at the sole option and request of the District. Said service may con- tinue to be terminated as long as payments contemplated hereunder, together with all past due payments, are in arrears. 7. Security: As security to the District, the foregoing covenant of annual payments in advance of water delivery will be fully met by annual budget and appropriation of funds from such sources of revenues as may be legally available to the • • Applicant. As additional security to the District, the Applicant will hold harmless any person, corporation, quasi - governmental entity, or other governmental entity, for discon- tinuance in service due to the failure of the Applicant to maintain the payments herein contemplated on a current basis. 8. Assignment: This agreement shall inure to the benefit of the heirs, successors and assigns of the parties hereto. 9. Other Rules: Applicant shall be bound by the provisions of the Water Conservancy Act of Colorado; by the rules and regu- lations of the Board of Directors of said District; and all amendments thereof and supplements thereto. 10. Operation and Maintenance Agreement: Applicant shall enter into an "Operation and Maintenance Agreement" with the District under terms and conditions determined by the Board of Directors of the District if and when the Board of said District determines in its sole discretion that such an agreement is required by reason of additional or special services requested by the Applicant and provided by the District i tor for more y reason han oof the delivery or use of water by the Applicant of the classes of service which are defined in the rules and regulations of the Board of Directors of the District. Said agreement may contain, but shall not be limited to, a provision within the terms of standard allotment contracts of the District; additional annual monetary consideration for extension of District delivery 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. 11. Change of Use: The District reserves the exclusive right to review, reapprove or disapprove any proposed change in use of the water allotted hereunder to the extent such change in use and/or change in land use would require approval of local or state governmental authorities pursuant to land use laws now or hereafter in existence. 12. Applicant agrees to use the water in the manner and on the property described in Exhibit A attached hereto or in any operation and maintenance agreement provided by Applicant. Any use other than as set forth thereon or any lease or sale of the water or water rights herein shall be deemed to be a material breach of this agreement. 13. It is understood and agreed that nothing herein shall be interpreted to give the Applicant any equitable or legal fee title interest in or to any water or water rights referred to herein. 14. Applicant shall use commonly accepted conservation practices with respect to the water and water rights herein and hereby agrees to be bound by any conservation plan adopted hereafter by the District for use of District owned or controlled water or water rights. APPLICANT: LAZIER -SILLS PARTNERSH P STATE OF COLORADO ) �/� ) s s . County of,jv immy M. Sills c/o Leavenworth, Patrick & Lochhead, P.C. 1011 Grand Avenue P.O. Drawer 2030 Glenwood Springs, CO 81602 The foregoing instrumentw as/a by Jimmy M acknowledged de fore me this 440) day of (k�Q WITNESS my hand and official seal. rila'.ch d3 J 9 . My Commission expires: Notary Public Address: e.o. Drawer ,diC4nonoc1 6froos 1 Co PIbo2- ORDER ON APPLICATION r L iJ Y ,,`t After a hearing by the Board of Directors of the West Divide Conservancy District on the above application, it is hereby ORDERED that said application be granted and this contract shall be and is accepted by the District. WEST DIVIDE CONSERVANCY DISTRICT ATTEST: BY l _.d/41 President -5- THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS OF ALL EXHIBI ATTACHED HERETO. 1 2.o. box 14 gypsum, co o 81637 524.0414 945.8358 406 s. hyland square. Sul 1 Glenwood springs, coloredo 81601 945.2045 LcNi ,r 4 Legal Description - Canyon Creek Subdivision A parcel of land located in the SE1/4SW1/4 Section 25, Township 5 South, Range 90 West of the Sixth Principal Meridian, and in the NE1/4NW1/4 of Section 36, Township 5 South, Range 90 West of the Sixth Principal Meridian, said parcel being more particularly described as follows: Beginning at the South One -Quarter corner of said Section 25, a brass cap set in place by the Garfield County Surveyor in 1954; thence S08°17' 28"E, 748.11 ft. to the North boundary of the Riverview Subdivision in Garfield County; Thence along the boundary of said Riverview Subdivision the following courses and distances: N85°33' 17"W, 2.18 ft.: S82°07'03"W, 44.85 ft.; S59°59'00"W, 73.43 ft.; Sol°o1'•00"W, 339.22 ft.; thence, leaving said Riverview Subdivision boundary along the South Right of Way line of the old County road as best evidenced by a fenceline existing at the time of the survey, the followimg courses and distances: N64°38' 24"W,161.18 ft.; N73°51' 31"W, 184.96 ft.; S84 °07' 34"W, 287.53 ft.; thence leaving said South Right of Way line along an existing fenceline S05°20''04"E, 393.98 ft. to an existing fence corner; thence along an existing fenceline S86°59'54"W, 188.73 ft.; thence, N04°22102"W,111.86 ft. along a fenceline at the time of survey; thence, N87°52'24"W, 5.89 ft.; thence N07°40'47"W, 220.70 ft. to the South Right of way line of the old county road; thence along said South Right of Way line S68°23'54"W, 78.06 ft. to an existing fenceline; the best evidence for the location of the old County Road South Right of Way. :;:No7y74f.•-:ii4TV i.r- \"ssc�Yrr!...-•cc: 7,.."41,+'40772A.y: n:::��..r.,crr• <07�-r'..r�q.rr•�r,-pie"RIF::•7•T,r+.y�.�w.,-----,-�.--... �-.. ,..�-r-T•--•"t •"-T-�"'-�'•.- 1 p.o. box 14 gypsum, col81637 524.9414 945 8358 406 s. hyland square, sult •1 glenwood springs, colorado 81601 945-2045 thence, along said existing fenceline, S69°07'27"W,188.97 ft.; thence,along said existing fenceline, S68°56'30"W,134.00 ft.; thence, along the existing fFnceline S63°48'56"W, 139.43 ft.; thence, S57°47157"W, 18.57ft. to the Northeast corner of a parcel of land described in Book 354 Page 119 of the Garfield County records; thence, S.57°34 ' 0 0" W , 319.85 f t . along the North boundary of said parcel f land to t r o he centerline of Canyon Creek; thence, along and distances: N13°5P'2G"W, N13°19'13"E, N08°00 '17"W, N14°09'31"E, N01°22 '52 "E, N20°47'54"W, the centerline of Canyon Creek the following courses 286.76 ft.; 256.93 ft.; 233.05 ft.; 279.69 ft.; 162.17 ft.; 92.26'ft.; thence, leaving said creek centerline along the South boundary of a parcel of land described in Book 563 Page 586 of the Garfield County records S86°31'08"E, 230.07 ft.; thence along the East boundary line of said parcel N00°36'16"W, 945.89 ft.; thence, leaving said parcel boundary N78°10'50"E, 49.58 ft.; thence NO1°05139"W, 460.06 ft.; SW1/4 Section 25; to the Northline of said SE1/4 thence, along said northline N89°24'491.'E, 1196.97 ft. to the North-South centerline of Section 25; thence S01°02'25"W along said North-South centerline, 1310.33 ft. to the South One -Quarter Corner of said section 25, and the point of beginning. Said parcel of land contains 75.454 Acres more or less. • • EXHIBIT B AMENDMENT TO APPLICATION 1. Any water allotment not used by the end of each annual water year (October 1) shall then revert to the District. 2. Annual water allotment payments hereunder shall be due and payable on or before January 1 of each year. 3. Applicant shall restrict lawn and garden use to a maximum of six thousand square feet per household served with water obtained from the District. 4. If the terms of this amendment contradict specific provisions of the foregoing application, then the terms hereof shall govern. APPLICATION FOR PURCHASE OF WATERS FROM THE WEST DIVIDE WATER CONSERVANCY DISTRICT A. APPLICANT NAME ADDRESS Lazier–Sills Partnership c/o Leavenworth, Patrick & Lochhead, P.C. P. 0. Drawer 2030; Glenwood Springs, CO 81602 TEL NO 303 /945 — 2261 AGENT OR REPRESENTATIVE Leavenworth, Patrick &. Lochhead, P.C. B. WATER RIGHT TO BE AUGMENTED NAME OF RIGHT Canyon Creek Well #1, and Avalanche Canal and Syphon LOCATION OF DIVERSION POINT Within the NE; of the NWS of Sec. 36. T5S, Range 90 West of the 6th P.M. whence the N1 corner of said Section 36 bears N. 30°23'26"E. a distance of 1388.97 feet. WATER COURT CASE NO. 82CW177 C. INTENDED USE OF AUGMENTED WATER RIGHT LOCATION OF AREA OF USE Within portions of Sections 25 and 36, T5S, Range 90 West of the 6th P.M. DESCRIPTION OF PROJECT Residential development of 28 single–family units, 30 duplex units and 11 multi–family dwelling units, with a total irrigation 7.9 acres, 17 horses, and an equestrian center. NO. OF DWELLING UNITS 60 PROPOSED POTABLE WATER SYSTEM central TOTAL ACREAGE approx. 75 PROPOSED WASTE -WATER TREATMENT SYSTEM Central, with two single– family homes on septic tank/leachfield systems, and fou rsingle–family homes on evaporative systems. PROJECTED MONTHLY VOLUME OF AUGMENTATION WATER NEEDED:** JAN 0/.3 FEB 0/.3 MAR 0/•3 APR .275/3MAY 0/1.9 JUN 1.8/3.2 JUL 4.5/4.5AUG 3.9/3.9SEPT2.2/2.2 OCT .5/.5 NOV 0/.3 DEC 0/.3 ANNUALTOTAL 13.2/18.0 MAXIMUM INSTANTANEOUS DEMAND 0.2 CFS -" : in acre–feet. Numbers reflect 10% transit loss, and represent dry years demand with and without use of Avalanche Canal and Syphon water right, respectively. D. OTHER REMARKS: This application is subject to and will be modifie,' by the terms, conditions, and administration of the final decree issued in Case No. 82CW172, Water Division No. 5. As a result of said decree, total dwelling unit and irrigation requirements • i • n . - - - • • n u quirements as set forth in this contract reter to calendar years. LEAVENWORTH, PATRICK & LOCHHEAD, P.C. i 11 S2') ), f7(//71(i./-(' DA E SIGNATURE OF AGENT OR REPRESENTATI E dak y t Harlequin Plaza - North • 7600 East Orchard Road Englewood, Colorado 80111 303/694/2770 July 19, 1982 IAF✓✓ LCL Woodwar -Clyde Consultants Leavenworth, Patrick & Lochhead, P.C. P.O. Drawer 2030 Glenwood Springs, Colorado 81601 Attention: James S. Lochhead, Esq. 1\ 4 ,Ri( 21 1.Etl? h' E'D 75)1 Cl Re: Hydrologic Services, Sills Canyon Creek Subdivision in Garfield County, Colorado. Job No. 20815-20364 Gentlemen: This letter report presents the results of our hydrologic investigation for the Sills Canyon Creek Subdivision in Garfield County, Colorado. Our objectives included assessing the water requirements and water consumption that can be expected to result from the development of the subdivision, estimating the water that would be available to water rights for the subdivision, estimating the augmentation requirements, and recommending provisions for possible inclusion in an augmentation plan. This report is based on subdivision data that were revised since our May 14, 1982 report and, therefore, supercedes that report. SILLS CANYON CREEK SUBDIVISION The Sills Canyon Creek property consists of about 75 acres generally known as Wolverton Mesa, which is located near the confluence of Canyon Creek with the Colorado River about 8 miles west miles of Glenwood Springs, Colorado. This property will be developed into dwelling units for about 69 families, including 28 single-family units and 41 multi -family units. Lawn areas in the subdivision will average about 3,000 square feet on the single family and 15 two-family lots, 5,000 square feet on the four -family lot, and 9,000 square feet on the seven -family lot. The subdivision also will include about 4.6 acres of irrigated common open space. This total irrigated lawn area equals about 7.9 acres. A community center with about 2,000 square feet of building area will include a kitchen and two bath- rooms. The equestrian center will stable about 17 horses. We also under- stand that due to their proximity, two existing houses may be included within the subdivision's water distribution system and augmentation plan. We have estimated the water demands and water consumption for the subdivision based on the following criteria: Consulting Engineers, Geologists and Environmental Scientists Offices in Other Principal Cities • todward•Clyde Consultants Leavenworth, Patrick & Lochhead, P.C. July 19, 1982 Page 2 (1) The single family dwelling units will house an average of 3.5 people, whereas the multi -family dwelling units will house an average of 3.0 people. (2) The demands for water to be used in-house will average about 100 gallons per capita per day. (3) As the percentage of the in-house demand, the consumption will average about 10 percent for the 2 single-family units with septic and leach field systems, 100 percent for the 4 single- family units with evaporative disposal systems, and 5 percent for the remaining units, which will be served by the centralized sewage treatment system. (4) Based on the Blaney-Criddle method, the consumptive use resulting from the irrigation of lawns will average about 1.67 acre-feet per acre during an irrigation season extending from about May 1 through mid-October. (5) Each horse will consume approximately 12 gallons per day and the community center will be the equivalent of 1 single-family dwelling unit. Based on these criteria, the total water demand within the subdivision will average about 42.9 acre-feet per year at full build -out. The annual depletions associated with the subdivision will average about 16.2 acre- feet per year, broken down into about 2.8 acre-feet for in-house water use, about 13.2 acre-feet for the irrigation of lawn and common areas, and about 0.2 acre-feet for the equestrian and community center. Monthly demands, depletions, and depletion/demand ratios are shown in Table 1. Water Rights and Water Supply The water supply for the proposed subdivision will be obtained from one or more wells constructed in the Colorado River alluvium. It is our under- standing an augmentation plan will be developed involving water and water rights purchased or leased from the West Divide Water Conservancy District. Two alternative augmentation plans are being considered. Either of these augmentation plans should enable you to divert a water supply sufficient for the Sills Canyon Creek Subdivision. Under the first the West Divide Divide's direct Ruedi Reservoir alternative for augmentation, the lease or purchase from Water Conservancy District would include a portion of West flow priorities and a portion of West Divide's allotment of water. The well or wells for the Sills Canyon Creek r' • Iodward-Clyde Consultants Leavenworth, Patrick & Lochhead, P.C. July 19, 1982 Page 3 Subdivision would be adjudicated as alternate points of diversion for 0.2 cfs of the Avalanche Canal's priority which has an appropriation date of April 22, 1957, an adjudication date of June 20, 1958 and a basin rank of 4502. The Avalanche Canal decree is in the name of the Colorado River Water Conservation District and assignment of the water right would be dependent on their consent. Until such time as the 0.2 cfs is conveyed to the developer, West Divide would allot 18.0 acre-feet per year of Ruedi Reservoir storage water to augment their out -of -priority depletions. After conveyance of the direct flow right to the developer, the Ruedi Reservoir storage water will be reduced to 13.2 acre-feet per year. Due to the senior water rights downstream on the Colorado River, we estimate the Avalanche Canal water right could be out -of -priority during a dry year, such as 1977, in April and from mid-June through October. The depletion that would occur at the subdivision during this period would be about 11.7 acre-feet, broken down into about 1.3 acre-feet for in-house water use, 10.3 acre-feet from irrigating lawns and common space, and about 0.1 acre-foot at the equestrian and community center. The depletions during these times would be augmentated by storage releases from Ruedi Reservoir. Under the second alternative augmentation plan, a 1982 priority would be obtained for the Sills well or wells. Similarly, the depletions during times when water is not available to this priority would be augmentated by releases from Ruedi Reservoir. Due to downstream senior irrigation and industrial water rights, we feel this alternative augmentation plan should include the capability to augment the full volume of the annual depletions, amounting to about 16.2 acre-feet per year. Either augmentation plan should include sufficient Ruedi Reservoir water to allow for transit losses in the Fryingpan, Roaring Fork, and Colorado Rivers between Ruedi Reservoir and Canyon Creek. The Division Engineer probably will assess a 10 percent transit loss for Ruedi Reservoir deliveries made under water service contracts. Under dry year conditions, such as those incurred during 1977, storage releases required from Ruedi Reservoir would be about 13.0 and 18.0 acre-feet per year under the first and second alternative augmentation plans, respectively. Water Service Outside of the Subdivision Due to their proximity to the subdivision, two existing single-family housing units may be included in the subdivision's water distribution system and augmentation plan. To estimate the water demands and depletions for the 2 units we used the same unit demands and depletions as used for the single family units within the subdivision with septic leach field systems. To keep the depletions within the volume of the augmentation • Sodward.CIyde Consultants Leavenworth, Patrick & Lochhead, P.C. July 19, 1982 Page 4 supplies to be obtained from West Divide, the common irrigated area was reduced to 4.4 acres. The average annual water demand associated with the two additional units was estimated to be 1.1 acre-feet per year. The annual depletions would average about 0.3 acre-foot per year, broken down into about 0.1 acre-foot per year for in-house water use and about 0.2 acre-foot per year for lawn irrigation. The monthly demands, depletions and depletion/demand ratios for the subdivision and the two existing housing units are shown in Table 2. During a dry year such as 1977, the out -of -priority depletions associated with use of the Avalanche Canal priority would be about 11.6 acre-feet, broken down into about 1.3 acre-feet for in-house water use, 10.2 acre-feet from irrigating lawn and common space, and about 0.1 acre-foot at the equestrian and community center. Under the second alternative plan, the entire annual depletion of about 16.1 acre-feet would be augmented by Ruedi Reservoir releases. During a dry year such as that incurred in 1977, storage releases required from Ruedi Reservoir would be about 12.9 and 17.9 acre-feet per year, including transit losses, under the first and second alternative augmentation plans, respectively. CONCLUSIONS (1) The total annual water demand and depletion that can be expected to occur as a result of the water use in the Sills Canyon Creek Subdivision should average about 42.9 and 16.2 acre-feet per year, respectively. (2) A plan to augment the water uses at the Sills Canyon Creek Subdivision will involve establishing the Sills well or wells as alternate points of diversion for a portion of the water rights decreed to the Avalanche Canal. During times when water is not available to this priority, we estimate that during a dry year about 13.0 acre-feet would be required for such release from Ruedi Reservoir. (3) An alternative augmentation plan would involve obtaining an original 1982 priority for the Sills well or wells. We estimate that during a dry year about 18.0 acre-feet would be required for release from Ruedi Reservoir. (4) If the 2 existing houses are included in the augmentation plan, the subdivision's total annual depletion would average about 16.1 acre- feet per year. Utilizing the Sills wells as alternate diversions of •odward.CIyde Consultants Leavenworth, Patrick & Lochhead, P.C. July 19, 1982 Page 5 the Avalanche Canal, about 12.9 acre-feet would be required for release from Ruedi Reservoir to augment the out -of -priority depletions in dry years. Under the alternative plan, about 17.9 acre-feet per year would be required for release from Ruedi Reservoir. RECOMMENDATIONS (1) Until other Ruedi Reservoir water service contracts are effective and demands on Ruedi Reservoir increase, we recommend that releases from Ruedi Reservoir be made monthly based on the preceeding months out -of - priority consumption. Of course, the actual operation of the augmentation plan must be approved by the Division Engineer. If you have any questions, please call. Yours truly, Duane D. Helton Chief, Water Rights Group REV:RJI TAW:cc (2 copies sent) Enclosure • •odward.Clyde Consultants TABLE 1 SILLS CANYON CREEK SUBDIVISION WATER REQUIREMENTS1) Demand Depletion Depletion/ Month ac -ft ac -ft Demand Ratio Jan 2.11 .25 0.12 Feb 2.11 .25 0.12 Mar 2.11 .25 0.12 Apr 2.11 .25 0.12 May 4.12 1.76 0.43 June 5.67 2.92 0.51 July 7.20 4.07 0.57 Aug 6.48 3.53 0.54 Sept 4.39 1.96 0.45 Oct 2.37 0.44 0.19 Nov 2.11 .25 0.12 Dec 2.11 .25 0.12 Total 42.89 16.18 1) Water demands and depletions are based upon: 28 single-family units 41 multi -family units 3.3 acres irrigated lawn 4.6 acres irrigated common area Community and equestrian center - 17 horses Job No. 20815-20364 • •odward..Clyde Consultants TABLE 2 SILLS CANYON CREEK SUBDIVISION WATER REQUIREMENTS1) Demand Depletion Month ac -ft ac -ft Jan 2.18 0.26 Feb 2.18 0.26 Mar 2.18 0.26 Apr 2.18 0.26 May 4.16 1.75 June 5.69 2.89 July 7.21 4.03 Aug 6.49 3.49 Sept 4.43 1.95 Oct 2.44 0.46 Nov 2.18 0.26 Dec 2.18 0.26 Total 43.50 16.13 1) Water demands and depletions are based upon: 30 single-family units 41 multi -family units 3.4 acres irrigated lawn 4.4 acres irrigated common area Community and equestrian center - 17 horses Job No. 20815-20364 Depletion/ Demand Ratio 0.12 0.12 0.12 0.12 0.42 0.51 0.56 0.54 0.44 0.19 0.12 0.12 EXHIBIT 6 DECLARATION OF PROTECTIVE COVENANTS FOR CANYON CREEK ESTATES, A PLANNED UNIT DEVELOPMENT WHEREAS, THE LAZIER -SILLS PARTNERSHIP (Declarant) is the owner of that certain real property described on Exhibit "A" attached hereto and incorporated herein by this reference (hereinafter referred to as the PUD), which property is situated in Garfield County, State of Colorado, described as the Canyon Creek Estates, a Planned Unit Development (PUD), as the same appears upon the final plat filed for record on 19 as Reception No. in the office of the Clerk and Recorder, Garfield County, Colorado; and • WHEREAS, Declarant, being desirous of protecting property values and protecting the health, convenience and welfare of the owners of the lots and tracts in the PUD does hereby publish and declare that the following terms, covenants, uses, conditions, restrictions, limitations and obligations shall be deemed to run with the land located within the PUD, except lots 43 and 44, and shall be a burden upon and benefit to any person or persons acquiring or owning any interest in the PUD, their grantees, successors, heirs, devisees, personal representatives and assigns. 1.0 DEFINITIONS. As used in these Protective Covenants, the following words and terms shall have the following meanings: -1- • • 1.1 "PUD" shall mean Canyon Creek Estates, a Planned United Development. 1.2 "HOA" shall mean the Canyon Creek Homeowner's Association. 1.3 "ACC" shall mean the Architectural Control Committee for the PUD. 1.4 "Lot" shall mean any lot, tract or parcel of land in the PUD except lots 43 and 44. 1.5 "Unit" shall mean a residential dwelling unit, and shall apply to multiple dwelling units in a single struc- ture, e.g., duplex or 4-1,1ex, etc. 1.6 "Owner" shall mean the owner of a lot located within the PUD. 2.0 EXCLUSION. Lots 43 and 44 as they appear on the Final Plat are expressly excluded from these Protective Covenants. 3.0 HOMEOWNER'S ASSOCIATION (HOA) 3.1 Homeowner's Association. Any and all owners of lots in the PUD in accepting a deed or contract for any lot within the PUD agrees to and shall be a member of and be subject to the obligations and duly enacted bylaws and rules of the Canyon Creek Homeowner's Association, Inc., a non- profit corporation. Said Homeowner's Association shall be -2- • • incorporated for the purpose of enforcing these protective covenants, for the maintenance of common areas within the PUD, for owning, operating, and maintaining the water and sewer systems of the PUD and for operating any and all com- munity services of every kind and nature required or desired within the PUD for the general use and benefit of all lot owners. It is expressly understood that the Homeowner's Association shall be fully responsible for perpetual main- tenance of all common areas within the PUD, and that the Garfield County shall not be responsible in any way for such maintenance. 3.2 Water and Sewer Systems. All central domestic and raw water and sewer systems within and providing service to lots or common areas within or without the PUD shall be owned, operated and maintained by the HOA in accordance with such rules, regulations and bylaws as may be adopted by the HOA. Further, said system shall be operated according to all terms and conditions of the Plan for Augmentation for the PUD set forth and adjudicated in Case No. 82CW172, Water Division No. 5, as described in Paragraph 3.5 supra, and as the same my be amended. Individual wells or sewage disposal systems including septic tank/leach fields or evaporative sewage disposal systems servicing only one lot shall be owned, operated and maintained at the sole expense of the owner of the lot serviced by said individual system. Owners of lots serviced by individual water or sewer systems shall -3- • ! not be liable to the HOA for assessments or other expenses related to the .ownership, operation or maintenance of central water or sewer systems, but shall be liable for assessments or other expenses related to the ownership, operation and maintenance of any systems servicing common areas, and for all other assessments for common areas and other purposes. Access necessary to construct, service and repair water and sewer facilities to lots within the PUD shall not be denied by any owner. The HOA reserves the right to enter upon any lot within the PUD to drill wells or construct facilities for domestic water consumption or sewer service. 3.3 Enforcement of Protective Covenants. The HOA, through its board of directors or any owner of any property within the Canyon Creek PUD, shall have the right to enforce all covenants herein imposed by any proceedings at law or in equity. Failure by the HOA or any owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to enforce this covenant or restriction thereafter. In addition to any other remedies otherwise available, the board of directors of the HOA or its designated representatives may, upon violation or breach of any covenant herein, enter upon any property where such violation or breach exists and may abate or remove the thing or condition causing the breach and the cost incurred in connection therewith, including reasonable attorney's fees, -4- • • shall be billed to and paid by the owner or owners violating or breaching these covenants, providing that the HOA has first given 30 days' written notice to the owner for his correction of said breach or violation of these covenants. If the violating owner or owners fail after demand to pay such costs, then such costs shall be and become a lien upon the property of such owner or owners for the amount due and not paid pursuant to the provisions of the Articles and Bylaws of the HOA. 3.4 Individual Sewage Systems. Each residence not connected to the central sewage system shall contain at least one fully equiped bathroom and all sewage shall be disposed of by means of an individual mechanical sewage treatment facility or septic tank and leach field and shall be approved by the Colorado State Department of Health and local health agencies having jurisdiction thereof. Mechanical sewage treatment facilities or individual septic tank/leach field systems shall not be utilized in such a manner as to pollute or threaten to pollute ground or sur- face waters or affect or pollute the water supply system of the PUD. 3.5 Plan for Augmentation. Each lot owner shall shall comply with and be subject to the terms and conditions of the plan for augmentation decreed in Case No. 82CW172, as amended, and any water rights decrees under which the -5- • central domestic and raw water system(s) operates or under which any individual well operates. Such limitations include limitations on sewage disposal systems, irrigated lawn and garden area, and water use and administration within the priority system. Said restrictions on irrigable lawn and garden area shall be as follows: (a) 3000 square feet of irrigated lawn and garden area per single family dwelling unit; (b) 1,500 square feet of irrigated lawn and garden area per duplex dwelling unit; and (c) 1300 square feet of irrigated lawn and garden area per multi -family unit. Any lot owner may apply to the HOA for amendment of the plan for augmentation to allow for a use of water other than provided in said decree. Upon approval by the HOA of said amendment, the HOA shall make application to the Water Court, Water Division No. 5, State of Colorado, for such amendment. The HOA shall not be liable for any result of said Application, and the lot owner requesting said amend- ment shall fully reimburse the HOA for all costs and attorneys' fees in prosecuting said application, and shall indemnify and hold the HOA harmless from any liability relating thereto or arising therefrom. 4.0 RESIDENTIAL PURPOSE. The lots within the PUD shall be used only for residential purposes, provided that one barn, garage or other outbuilding may be constructed in addition to a residence on any lot and provided further that no land within the PUD shall be occupied or used for any commercial or business pur- -b- • • pose, except for a home occupation or profession conducted entirely within a building by the owners thereof, which use is clearly incidental and secondary to the use of said property for residential purposes. No barn or accessory structure may exceed 15 percent (15%) of the total square footage of the principal structure, as measured from the outside of foundation walls, unless approved by the ACC. The barns and accessory structures shall be so designed as to blend with and complement the general architectural scheme of the principal structure. All barns and accessory structures shall be located entirely within the building envelope for the particular lot. No display, stock in trade or outside storage equipment, signs or other external advertising shall be permit't_ed. No mobile homes will be per- mitted in the PUD. 5.0 STRUCTURES AND LANDSCAPING IN THE PUD. All structures in the PUD shall be designed to blend into and complement the natural surroundings. All structures shall be sited on each lot by the owner, and approved by the ACC. Unless varied by the provisions of paragraph 16.5, infra, no structure on any lot or tract shall be constructed outside the building envelope as located and defined on the building envelope map attached hereto as Exhibit B and incorporated herein by this reference. In siting a structure, the ACC shall approve its location as near to the spot selected by the owner as shall not impede or restrict the view plane of other owners and otherwise meet the criteria set forth ir► paragraph 16.0, infra. The minimum size -7- • • of each single-family structure shall be not less than 1200 square feet of habit4l floor area, exclusive of open porches, garages or carports, as measured from the external foundation walls. No structure shall be permitted on any lot or tract which exceeds thirty (30) feet in height measured from the average natural finished grade line immediately adjoining the foundation to the average roof height. No radio, short wave or television antenna over five (5) feet above the highest roof line and no television or short wave disk shall be permitted unless approved by the ACC. No structure shall be erected by means of other than new construction, it being the purpose of this covenant to insure that old buildings will not be moved from previous locations and placed upon a lot or tract. Exteriors of all structures shall be constructed of either brick, stone, lumber, or a combination thereof. The use of cin- derblock shall not be allowed unless it is faced with another material herein approved. Each structure shall be completed within one (1) year from date of the issuance of a building per- mit. Landscaping shall blend with natural vegetation. No tree shall be removed or cut down without approval by the ACC; however, it is herein recognized that selective cuttings of natural vegetation may be necessary to prevent wild fire dangers and to prevent the spread of tree disease and cuttings of natural vegetation for these purposes shall be allowed. All areas cut, filled or disturbed by any construction or other activity shall be fully restored and landscaped. -8- s • 6.0. FIRE PROTECTION PLAN. Selective cuttings of brush and trees shall be allowed by the HOA pursuant to Paragraph 5.0, supra, for the prevention of wildfire danger. It is herein recognized that wildfire hazards can be reduced by building houses away from steep, brush and tree -covered slopes and draws. On lots 12, 13, and 14, all structures must be built at least 50 feet from the brushy draw area on said ltos, and shall be built using non-flamable siding and roofing materials, and shall avoid designs using cantilevered areas of the structure. 7.0 DRIVEWAY CULVERTS. All driveways shall include culverts of the same size as specified in the final Drainage Plan. • 8.0 RESUBDIVISION PROHIBITED. The resubdivision of a lot or tract is prohibited; provided, however, condominiumizations or resubdivision into townhouses of a structure on a lot zoned for duplex or multi -family use shall be allowed if in confor- mance with such zoning and if approved by Garfield County, and the combining of lots into one lot shall be allowed, provided that the number of dwelling units on said new lot does not exceed the number of dwelling units approved for the separate lots before the single lot was created, and if approved by Garfield County. 9.0 UTILITY LINES. No new gas lines, power lines, telephone lines or television cables shall be permitted unless said lines are buried underground and out of sight from their -9- • • primary source at the lot or tract line to the structure and at the owner's expense. . 10,0 NO TEMPORARY STRUCTURES. No structure of a temporary character; trailer, basement, tent or shack of any description shall be used on any lot except on a temporary basis, not exceeding six months, by the construction company constructing a structure on a'lot or tract. 11.0 FENCES. Architectural screen fences, limited to six (6) feet above ground level and constructed of natural wood, are allowed provided they are located within the building envelope designated for each lot or tract and are approved by the ACC. Open post and rail fences, limited to four (4) feet above ground level and constructed of unfinished natural wood poles, are allowed provided they are located so as to not unduly disrupt natural brush and tree vegetation nor cause soil erosion and are approved by the ACC. No metal masonry or plastic fencing of any kind, except as approved by the ACC for tennis courts or similar enclosures, shall be allowed. 12.0 ANIMALS. All owners and occupants of property within the PUD shall be responsible to maintain their pets, including dogs, horses and other domestic animals, under control and located on the lots owned and occupied by said owners and occu- pants, at all times and such animals shall not be permitted to create a nuisance or annoyance to adjacent properties or inhabi- tants within the PUD. No animal shall be kept on the PUD for -10- • • commercial purposes; provided that this restriction shall not be construed to prohibit the raising of livestock on the PUD for 4-H or FFA purposes. Paddocks or stables shall be provided for horses and other grazing livestock. Horses and other grazing livestock shall be kept in paddocks or stables as required to prevent the overgrazing of native or planted grasses and from harming native brush or trees and from causing soil erosion. No horse shall be allowed on any lot except lots exceeding 1.15 acres. No more than 17 horses total shall be kept within the PUD. No hunting, shooting, trapping or otherwise killing or harming of wildlife shall be permitted, it being the intent hereof to conserve and protect all wildlife to the fullest extent possible. 13.0 VEHICLES. Vehicles which are unlicensed shall not be stored or maintained on the premises for a period in excess of fifteen days such vehicle from following the expiration of such license, except may be stored in a garage or otherwise screened view from all other lots within the PUD and from all com- monly used roadways within the PUD. Recreation vehicles, such as camping vans or trailers, boats, road devices shall rights-of-way. snowmobiles and other off - be parked or stored out of sight from public 14.0 MAINTENANCE OF PROPERTY. The owner of each lot shall keep the structures thereon in good repair, doing such main- tenance as may be required for this purpose. No noxious or -11- • • offensive conduct or activity shall be carried on upon any lot or in any structure thereon which may constitute a health hazard, nuisance or annoyance to the neighborhood. 15.0 DISCHARGE OF FIREARMS. There shall be no discharge of guns or firearms upon the PUD except for self defense or to otherwise protect one's self or property. 16.0 ARCHITECTURAL CONTROL COMMITTEE (ACC). 16.1 No improvements of any kind, including, but not limited to, dwellings (both single and multi -family), dri- ves, garages, tennis courts, swimming pools, fences, barns, and outbuildings may be constructed or altered on any lands within the PUD unless three (3) complete sets of architec- tural plans and specifications for such construction are submitted to the ACC prior to the commencement of such work. Required drawings structures, yards, and landscaping; structure(s); and shall include: a site plan depicting drives, fences, utilities, site drainage all floor plans and elevations of the a description of the exterior materials to be used. The ACC will notify all adjacent landowners of the time and place of their review of the drawings. All deci- sions of the ACC shall be in writing. One set of such plans and specifications shall remain on file and become a per- manent record of the ACC. In the event the ACC fails to take any action within thirty days after complete architec- tural plans and specifications for such work have been sub- -12- • • mitted to it, then all of such plans and specifications shall be deemed to be approved. 16.2 The ACC shall exercise its best judgment to see that all improvements, construction and alterations on the land within the PUD conform to and harmonize with the natural surroundings and with existing structures as to external ,design, materials, color, setting, height, topography, grade and finished ground elevation. 16.3 Plans and specifications submitted under Paragraph 16.1 hereof shall show the nature, kind, shape, height, materials, floor plans, location, exterior color scheme, alterations, grading and all other matters necessary for the ACC to properly consider and make a determination thereon. The ACC shall disapprove any architectural plans submitted to it which are not sufficient for it to exercise the judgment required of it by these covenants. 16.4 Construction shall be completed within one year of issuance of the Building Permit in Garfield County. A Certificate of Occupancy must be obtained before actual occupancy. Clean up of the site must be complete by time of occupancy. Landscaping and repair of site construction scars must be complete within one year from the date of the issuance of the Certificate of Occupancy. 16.5 The ACC may grant a reasonable variance or -13- • • adjustment of these conditions and restrictions, including modifications to.a building envelope, in order to overcome practical difficulties and prevent unnecessary hardships arising by reason of the application of restrictions con- tained herein. Such variances or adjustments shall be granted only in case the granting thereof shall not be materially detrimental or injurious to other property or improvements of the neighborhood and shall not defeat the general intent of these restrictions. 16.6 The ACC shall not be liable in damages to any person or association submitting any architectural plans for approval or to any owner by reason of any action, failure to act, approval, disapproval or failure to approve or disapprove with regard to such architectural plans. Any owner submitting or causing to be submitted any plans and specifications to the ACC agrees and covenants that he will not bring an action or suit to recover damages against the ACC collectively, its members individually, or its advisors or agents. 16.7 The initial members of the ACC shall be: Neal McAbee Steve Caple Dick Stilson 16.8 A majority of the ACC may designate a represen- tative to act for it. Should a member resign or become -14- unable to act, the other members shall appoint a successor. Subsequent to the sale of all lots and tracts, one or more members may be replaced by written designation recorded in the Garfield County Clerk and Recorder's office showing approval by a majority of the owners. 17.0 TRACTS, ADDITIONAL COVENANTS. These Protective Covenants and 'the PUD Plat and Plan shall govern the use and occupation of the land in the PUD. Additional and further cove- nants, homeowners associations and other entities may be adopted and created as to any lot designed for multi -family or duplex use in the PUD; provided, however, such covenants or other internal governing documents shall be no less restrictive than these Protective Covenants. 18.0 COVENANTS RUN WITH THE LAND. These covenants are to run with the land and shall be binding upon all parties and all persons claiming under them until ten years from the date these covenants are recorded, at which time said covenants shall be automatically extended for successive periods of ten (10) years unless by vote reflected by signed documents duly recorded by the majority of then owners it is agreed to change said cove- nants in whole or in part. 19.0 AMENDMENT. The Protective Covenants may be amended by an instrument signed by not less than 75 percent (75%) of the owners of the lots and tracts in the PUD. Such amendments shall become effective upon the recordation thereof in Garfield -15- • County, Colorado. 20.0 Severability. The invalidation of any one of these • covenants by judgment or court order shall not effect any of the other provisions which shall remain in full force and effect. DATED this STATE OF COLORADO day of , 1983. ss. County of LAZIER -SILLS PARTNERSHIP A Colorado General Partnership By General Partner The foregoing instrument was acknowledged before me this day of , 1983, by General Partner, Lazier -Sills Partnership. WITNESS my hand and official seal. My Commission expires: Notary Public Address: • • EXHIBIT 6 ARTICLES OF •INCORPORATION OF CANYON CREEK HOMEOWNERS ASSOCIATION The undersigned natural person, being more than twenty-one years of age, and acting as incorporator, does hereby establish a non-profit corporation under and by virtue of the Colorado Non -Profit Corporation Act and adopts the following Articles of Incorporation: ARTICLE I NAME The name of the corporation is Canyon Creek Estates Homeowners Association. ARTICLE II DURATION The corporation shall have perpetual existence. ARTICLE III PURPOSES AND POWERS The nature of the corporation and the objects and purposes for which the same is organized are as follows: 1. To be and constitute the Association to which reference is made in the Declaration of Protective Covenants for Canyon Creek Estates, A Planned Unit Development (hereinafter "Declaration") located in Garfield County, Colorado, which Declaration is recorded in the Office of the Clerk and Recorder of Garfield County, Colorado. 2. To acquire ownership of and title to certain easements, water rights, water well rights, water and sewer service lines, sewer plant facilities, common open space and other common ele- ments appurtenant to the Canyon Creek Estates PUD (hereinafter "the Project"). • • 3. To maintain and operate the real and personal property referenced in Paragraph III (2), supra, in perpetuity subject to such regular or special assessments or charges as may be required to defray the cost and. expense thereof. 4. To administer and enforce the provisions of the Declaration including provisions for architectural control, for the benefit of the residents of the Project on a cooperative basis. 5. To have and exercise generally, all powers, and to do and perform all the acts, which are or may be necessary to carry out and effectuate the purposes for which the corporation is formed; such powers shall include, without limiting the general powers of the corporation, the power to perform the following specific acts: (a) Pay taxes and assessments on all property held by the corporation for the general use of the members; (b) Disburse funds collected for maintenance, taxes, or other proper charges levied against the property of the corporation; (c) Acquire or dispose Of property in the interests of the corporation, either by purchase, sale or dedication to a public authority; (d) Borrow money for the proper conduct of the affairs of the corporation; (e) Establish, levy, and assess regular or special charges and assessments against the ownership units within the Project and the owners thereof and reasonable admission or other fees for the use of the corporation's common elements, in pursuance of the purposes of the cor- poration and establish appropriate collection proce- dures therefore; (f) To own and operate a water and sewer system to provide water and sewer service to the inhabitants of the Project; (g) To maintain open spaces or other common elements such maintenance is assumed by public authority; (h) To make and enforce rules and regulations as provided in the Declaration affecting the Project; (i) To perform and provide other proper functions in the nature of community services; -2- J) • • To exercise all those general powers conferred upon non-profit corporations under the laws of the State of Colorado. 6. The corporation is organized exclusively for purposes of holding title to, operating and maintaining water rights and water and sewer facilities, open spaces and other common ele- ments and to enforce the provisions of the Declaration on a cooperative basis, and for doing all things necessary and proper therefor, whereby at least 85% of its income shall be derived from assessments to members for the sole purpose of meeting expenses or losses and in full compliance with the applicable requirements of Section 501 of the Internal Revenue Code of 1954, as amended. 7. The Board of Directors of the corporation shall be vested with the exclusive authority to authorize the President or the Vice -President, with the attestation of the Secretary, to convey or encumber all or any part of the corporate property subject to the voting rights of members and mortgagees as con- tained in the Declaration. ARTICLE IV NON-PSOFIT STATUS 1. No part of the income or net earnings of the corporation shall inure to the benefit or be distributable to any member, director, or officer of the corporation or any other corporation or private individual; however, reasonable compensation may be paid for services actually rendered to or for the corporation and any officer, director, agent or employee; or any other per- son or corporation, may be reimbursed for expenses advanced or incurred for the corporation's benefit upon authorization of the Board of Directors. No member, director or officer of the cor- poration, nor any other corporation or private individual, shall be entitled to share in any distribution of any of the corporate assets upon dissolution of the corporation or otherwise, except as hereinafter expressly set forth. No substantial part of the activities of the corporation shall consist of carrying on lobbying activities, propaganda campaigns or other activities designed to influence legislation. The corporation shall not participate or intervene in any political campaign on behalf of any candidate for public office. 2. Upon dissolution of the corporation, all of its assets remaining after payment of liabilities shall be paid over and transferred to one or more exempt organizations as are qualified for exemption from Federal income taxes under Section 501 of the Internal Revenue Code, except that all open spaces common areas and other property appurtenant to, used in connection with, or necessary for the convenient use and occupation of the real pro- perty of the members, shall be returned, transferred or conveyed • • to such members in accordance with the provisions of Article V of these Articles of Incorporation. The proceedings of dissolu- tion shall be conducted in accordance with Article 26, Title 7 of the Colorado Revised Statutes, as amended. 3. Notwithstanding any other provision hereof, this cor- poration shall not conduct or carry on any activities not per- mitted nor receive any income which is prohibited under the applicable provisions of Section 501 of the Internal Revenue Code of 1954, as amended. ARTICLE V MEMBERSHIP 1. This corporation shall be a membership corporation without shares of stock. The record owner or owners (including contract sellers, but excluding those having such interest merely as security for the performance of an obligation) of a fee simple title to any lot (excluding common elements) within the Project shall be members of the corporation. When more than one person or entity holds an interest in any lot, all such per- sons or entities shall be members of the corporation; provided, however, that each lot in the Project is entitlted to only one membership in the corporation and the owner or owners thereof are subject to such rights and obligations as accrue to one mem- bership in the corporation. Membership shall be appurtenant to and may not be separated from ownership within the Project, and shall transfer automatically to any transferee of any fee simple interest in any lot therein. 2. The corporation shall issue membership certificates to members in accordance with the By -Laws hereinafter promulgated pursuant to law. Each established owner (or owners collectively) of a lot within the Project shall be entitled to receive one membership certificate in the Canyon Creek Estates Homeowners Association for each such lot, thereby entitling each member to the non-exclusive use of the common elements or other property owned and controlled by the corporation. 3. Each member shall be entitled to one vote, either in person or by proxy for each membership certificate registered in his name on the books of the corporation. In the election of directors, each such voting member shall have the right to vote such number of membership certificates for as many persons as there are directors to be elected. Cumulative voting shall not be allowed for any purpose. Provided, however, that so long as Lazier -Sills Partnership, is a member of this corporation and owns more than 11 of the total lots within the Project, it shall be entitled to elect a majority of the Directors of this cor- poration and shall be entitled to cast a majority of the votes cast on all other questions voted on by the Members; provided, • • further, that the remaining Directors of this corporation shall be elected by all. Members, excluding the Lazier -Sills Partnership, and that the remaining votes cast on all other questions voted on shall be distributed among all of the members excluding Lazier -Sills Partnership. 4. Each membership certificate issued to a member shall constitute and be construed as a proportionate right, title and interest in and to the assets owned by the corporation for the purposes of assessments required to carry out the purposes of the corporation and in connection with liens pursuant to such assessments and the enforcement thereof. ARTICLE VI INITIAL REGISTERED OFFICE AND AGENT The address of the initial registered office of the cor- poration is 1602 Lincolnwood Drive, Glenwood Springs, Colorado 81601. The name of its initial registered agent at such address is Jimmy Sills. The business and affairs of such corporation shall be conducted and carried on within the State of Colorado. The principal office of the corporation shall be located in Colorado. • ARTICLE VI1 INITIAL BOARD OF DIRECTORS The initial Board of Directors of the corporation shall con- sist of three directors who will serve until the first annual meeting of members or until their successors shall have been duly elected and qualified. The names and addresses of said initial directors are as follows: Name Address Jimmy M. Sills 1602 Lincolnwood Drive Glenwood Springs, CO 81601 • ARTICLE VIII REGISTRATION OF OWNERSHIP The corporation shall be entitled to treat the "registered holder" of any membership certificate of the corporation as the owner thereof for all purposes, including all rights deriving from such membership, and shall not be bound to recognize any equitable or other claim to or interest in such membership or rights deriving from such certificate, on the part of any other person, unless and until such person has become the "registered holder" of such certificate, in the manner prescribed in the corporate By -Laws. ARTICLE IX BY-LAWS The Board of Directors shall adopt and may amend from time to time, By -Laws for the regulation and government of the corporation's business and affairs and the issuance and transfer of its membership certificates. ARTICLE X INCORPORATOR The incorporator of this corporation is Jimmy M. Sills, and his address is P. O. Box 981, Glenwood Springs, Colorado 81602. ARTICLE XI AMENDMENTS Except as herein otherwise specifically provided, amendments to these Articles of Incorporation shall be adopted, if at all, in the manner set forth in the By -Laws; provided, however, that no amendment to the Articles of Incorporation shall be contrary to or inconsistent with any provision of the Declaration. • 1 IN WITNESS WHEREOF, the undersigned has subscribed his name to the Articles of. Incorporation of Canyon Creek Estates Homeowners Association, a corporation not for profit, on this day of , 1983. Jimmy M. Sills STATE OF COLORADO ) ss. County of The foregoing instrument was acknowledged before me this day of , 1983, by Jimmy M. Sills. WITNESS my hand and official seal. My Commission expires: Notary Public Address: -7- s • • EXHIBIT 6 BY-LAWS OF CANYON CREEK ESTATES HOMEOWNERS ASSOCIATION ARTICLE I MEMBERSHIP AND VOTING RIGHTS Section 1. Owners -Members: Membership in this Association shall be as set forth in the Declaration of Protective Covenants For Canyon Creek Estates, A Planned Unit Development (hereinafter "Declaration") for the Canyon Creek Estates PUD as recorded in the records of the Clerk and Recorder of Garfield County, Colorado, and in the Articles of Incorporation for this corporation. Section 2. Right to Vote: Members shall have such voting rights as provided in the Declaration, and in the Articles of Incorporation for this corporation. Section 3. Proxies: Voting by proxy is hereby authorized provided that all proxies shall be filed with the Secretary of the Association at least 48 hours prior to the time of any meeting. Section 4. Quorum: One-third (1/3) of the members entitled to vote shall constitute a quorum for the transaction of any business of the Association, including the election of Directors. Section 5. Adoption of Resolution: It shall require a vote of not less than the majority of the members present at a meeting in person or by proxy to adopt a resolution presented at a membership meeting for adoption. ARTICLE II MEMBERSHIP MEETING Section 1. Annual Meeting: The annual meetings of the mem- bers of the Association shall be held on the second Monday in February of each year, commencing with the year, 1984, or on such other date and at such time and place as may be fixed by the Board of Directors. Section 2. Special Meetings: Special meetings of members of the Association may be called by the President, or by resolu- tion of the Board of Directors of the Association, or upon a • • petition signed by not less than 25% of the members entitled to vote, the same having been presented to the Secretary. A notice of any special meeting shall state the time and place of the meeting and the purpose thereof. No business shall be tran- sacted at any special meeting except as stated in such notice, unless by agreement of more than 50% of the members present and entitled to vote, either in person or by proxy. Section 3. Place of Meeting: Meetings, both regular and special, of the membership shall be held at such suitable place within Garfield County, Colorado, as may be designated by the Board of Directors of the Association. Section 4. Notice of Meeting: Notice of the annual meeting of members of the Assocition, setting forth the place, date and time of such meeting, shall be mailed to members entitled to vote at least fifteen (15) days prior to the date fixed for such meeting. Notices of special meetings shall be given to members entitled to vote at least five (5) days prior to such meeting. All such notices shall be mailed by the Secretary of the Association, postage prepaid, and addressed to the member entitled to vote at his last known address shown on the records of the Association. Notice of any meetings as above provided shall be provided to any holder of a first mortgage on a Lot within Canyon Creek Estates' upon the Association receiving a written request from such first mortgagee to receive all such notices. Section 5. Adjourned Meetings: If any meeting of the mem- bers cannot be conducted for lack of a quorum at said meeting, either in person or by proxy, the President may adjourn the meeting to a later date not more than ten (10) days from the time of the original meeting. Section 6. Order of Business: The order of business at the annual meeting of members shall be as follows: (a) Roll call of members present entitled to vote (b) Inspection and verification of proxies (c) Reading of minutes of the preceding annual meeting (d) Report of officers (e) President's report (f) Committee reports (g) Election of members of the Board of Directors (h) Unfinished business -2- • • (i) New business ARTICLE III BOARD OF• DIRECTORS Section 1. Number and Qualifications: The affairs and business of the Association shall be conducted by a Board of Directors consisting of not less than three nor more than nine members who shall be elected at the annual meeting by members of the Association. Members of the Board shall serve until their successors are duly elected and qualified. Section 2. lElection and Term of Office: At annual meetings of the membership of the Association to be held as herein pro- vided, the terms of office of the Directors may be fixed for such period of time as the membership may determine and such terms may be staggered, that is to say, various members may be elected for terms of different lengths so that there will be a carryover of old Directors at each annual meeting and only new Directors will be designated thereafter, provided that nothing herein contained shall prevent the election of a Director whose term has expired to a new term as such Director. Section 3. Vacancies: Vacancies in the membership of the Board of Directors caused for any reason other than the removal of a Director by a vote of the membership as herein permitted shall be filled by a vote of a majority of the remaining Directors even though they may constitute less than a quorum; and each person so elected shall be a Director until his suc- cessor is elected at the next annual meeting of the membership. Section 4. Removal of Directors: A Director may be removed as such at any regular or special meeting duly called, with or without cause, by a vote of a majority of the members entitled to vote, and a successsor may then and there be elected to fill the vacancy thus created. The term of office of any director shall be declared vacant when such Director ceases to be a member of the Association by reason of the transfer of his ownership of a lot. Section 5. Compensation: Directors shall not be paid any compensation for their services performed as such Directors unless a resolution authorizing such renumeration shall have been adopted by the Board of Directors of the Association and ratified by resolution of the membership. Directors may be reimbursed for actual expenses incurred in connection with their duty as Directors. Section 6. Organization Meeting: Within a period of ninety (90) days following the election of newly elected Board of Directors, an organization meeting of the Directors shall be held at a time and place fixed by the Directors, at which meeting officers of the Association shall be elected as provided for in Article IV hereof. -3- • • ARTICLE IV OFFICERS Section 1. Designation: The . principal offices of the Association shall be a President, Vice President, Secretary and Treasurer, all of whom shall be elected by the Board of Directors. The officers of the Association may be combined, except that the President and Secretary shall not be the same person. Other officers or agencts may be appointed or elected by the Board of Directors from time to time. Section 2. Election of Officers: The officers shall be elected annually by the Board of Directors at the organization meeting of each new Board and shall hold office at the pleasure of the Board of Directors. Section 3. Removal of Officer: Upon an affirmative vote of a majority of the members of the Board of Directors, any officer may be removed, either with or without cause, and his successor elected at any regular meeting of the Board of Directors or at any special meeting of the Board called for such purpose. Section 4. President: The President shall be the chief executive officer of the Association. He shall preside at all meetings of the Association and of the Board of Directors. He shall have all of the general powers and duties which are usually vested in the office of the President, including, but not limited to, the power to appoint committees from among the owners from time to time as he may in his discretion decide is appropriate to assist in the conduct of the affairs of the Association. Section 5. Vice President: The Vice President shall take the place of the President and perform his duties whenever the President shall be absent or unable to act. If neither the President nor the Vice President shall be able to act, the Board of Directors shall appoint some other member of the Board to do so on an interim basis. The Vice President shall also perform such other duties as shall from time to time be imposed upon him by the Board of Directors. Section 6. Secretary: The Secretary shall have the respon- sibility for keeping the minutes of all meetings of the Board of Directors and the Association and such correspondence as shall be necessary and such other duties as shall from time to time be imposed on him by the Board of Directors. Section 7. Treasurer: The Treasurer shall have the respon- sibility for Association funds and securities and shall be responsible for keeping full and accurate accounts of all receipts and disbursements of the Association, and deposit its funds in such depositories as may from time to time be designated by the Board of Directors. • Section 8. Indemnification: Officers of the Association shall be indemnified for any act they may perform upon behalf of the Association in the same manner herein provided for indem- nification of members of the Board of Directors. ARTICLE V RULES AND REGULATIONS The Board of Directors may, from time to time, promulgate rules and regulations consistent with and in furtherance of the Declaration and the Articles and the By -Laws of the Association. ARTICLE VI ASSESSMENTS Section 1. Levy of Assessments: Each member of the cor- poration shall be subject to an annual prorata assessment for the maintenance and operating expenses of the corporation including the payment of the debts of the corporation and interest thereon and for the cost of extensions, additions and improvements to common areas, common elements, water and sewer systems and all other property owned or acquired by the cor- poration as well as all othet expenses of the corporation. The amount of such annual assessment shall be determined by a vote of the members of the corporation at their annual meeting. The members of the corporation shall have the power at any special meeting of the members called for that purpose to levy addi- tional assessments necessary to meet the obligations of the cor- poration. The Board of Directors may by resolution establish rules and regulations concerning the operation of any particular aspect of the corporation, including water and sewer system, common recreational elements, etc., and may provide such ini- tiation assessments, monthly assessments, and other matters as the Board of Directors deems appropriate. Section 2. Enforcement: The members when levying any assessment shall fix the date at which the assessment shall be due and payable. Any such assessment shall become delinquent thirty (30) days after the date so fixed and thereafter such assessment shall bear interest at the rate of 18% per annum until paid. Members who are in arrears in the payment of any assessment (annual, monthly, or special) shall not receive, nor be entitled to receive any service for which the assessment is due, including but not limited to water service. All past due assessments shall be and become a lien against all real property owned by the delinquent member, and the corporation shall have the right to institute foreclosure proceedings or prosecute a civil action against any delinquent member to recover the amount of any assessment which is delinquent, together with interest thereon, costs, and reasonable attorney's fees. -6- • • ARTICLE VII BOOKS AND RECORDS - INSPECTION Section 1. Books and Records: The Board of Directors shall cause to be maintained ,at the principal office of the Association complete books of account of the affairs of the Association. Section 2. Inspection: Such books of account shall be open to inspection upon the written demand of any member or holder of a first mortgage on any Lot, for a purpose reasonably related to his interest as such owner or mortgagee and shall be exhibited to such owner or mortgagee at any reasonable time upon reaso- nable request made to the Board of Directors. Such inspection by any owner or mortgagee may be made in person, or by his agent or his attorney, and the right of inspection includes the right to make extracts and perform audits. All of the foregoing shall be at the expense of the owner or mortgagee requesting such inspection. Requests for inspection shall be made in writing, directed to the President or Secretary or to the Board of Directors. ARTICLE VIII • SEAL The Board of Directors shall provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the Association and the State of incorporation and the word, "Seal". ARTICLE IX AMENDMENT These By -Laws may be amended by a majority vote of the Board of Directors at any regular meeting or at any special meeting called for such purpose. The notice of the meeting to amend the By -Laws shall specify the amendment in such notice. No By -Laws shall be amended nor shall supplemental By -Laws be added hereto which shall be in conflict with the statutes of the State of Colorado or the conditions, provision and terms of the Declaration or the Articles of Incorporation of the corporation. • The foregoing By -Laws were duly adopted at a meeting of the Board of Directors held the day of 198 President ATTEST: Secretary Article • EXHIBIT D • �r'�/ 3- gY CONTRACT NO. 2-07-70-W0547 UNITED STATES DEPARTMENT OF THE INTERIOR Bureau of Reclamation Fryingpan-Arkansas Project, Colorado CONTRACT BETWEEN THE UNITED STATES AND WEST DIVIDE WATER CONSERVANCY DISTRICT FOR FURNISHING WATER FOR MUNICIPAL, DOMESTIC AND OTHER RELATED PURPOSES FROM RUEDI RESERVOIR INDEX Title Preamble Explanatory Recitals 1 Definitions 2 Terse _of the Contract 3 Contracted Service 4 Water Service Charges 5 Delivery of Water 6 District's Use of Water 7 Water Shortage and Apportionment 8 Termination of the Contract 9 Assignment of the Contract 10 Book, Records and Reports 11 Notices 12 Charge for Late Payments 13 Title VI, Civil Rights Act of 1964 14 Quality of Water 15 Water and Air Pollution Control 16 Benefits Conditioned Upon Payment 17 Equal Opportunity 18 Certification of Nonsegregated Facilities 19 Officials Not to Benefit 20 Contingent on Appropriation or Allotment of Funds Signature Page No. 1 1-3 3-6 6 6 7-9 10-11 11-12 12 12-14 14 15 15 15-16 16 16-17 17 17 17-18 18-19 19 19 • 1 CONTRACT NO. 2-07-70-W0547 UNITED STATES DEPARTMENT OF THE INTERIOR Bureau of Reclamation Fryingpan-Arkansas Project, Colorado CONTRACT BETWEEN THE UNITED STATES AND WEST DIVIDE WATER CONSERVANCY DISTRICT FOR FURNISHING WATER FOR MUNICIPAL, DOMESTIC AND OTHER RELATED PURPOSES FROM RUEDI RESERVOIR THIS CONTRACT, made this 13th day of May, 1982, pursuant to the Act of June 17, 1902 (32 Stat. 388), and acts amendatory thereof and supple- mentary thereto, particularly Section 301(b) of the Act of July 3, 1958 (72 Stat. 319), and the Act of August 16, 1962 (76 Stat. 389), collectively known as the Federal Reclamation Laws, is between the UNITED STATES OF AMERICA, hereinafter referred to as the United States, represented by the Contracting Officer executing this contract, and WEST DIVIDE WATER CONSERVANCY DISTRICT, a corpo?atIon-'of the State of Colorado, with its principal place of business in Rifle, Colorado, hereinafter referred to as the District. EXPLANATORY RECITALS WHEREAS, the following statements are made in explanation: a. The United States, acting through the Secretary of the Interior, has constructed the Ruedi Reservoir as a feature of the Fryingpan- Arkansas Project as authorized by the Act of August 16, 1962 (76 Stat. 389), as amended by the Act of October 27, 1974 (88 Stat. 1486), and the Act of November 3, 1978 (92 Stat. 2493), in substantial accordance with House Document No. 187, 83rd Congress, 1st Session, as modified by House Document No. 353, 86th Congress, 2nd Session, subject to operating principles for the Fryingpan-Arkansas Project as set forth in House Document No. 130, 87th Congress, 1st Session. Ruedi Reservoir was authorized for two primary • • purposes: to provide storage capacity for replacement water for senior downstream diversion rights in western Colorado simultaneous to times of Fryingpan-Arkansas Project diversions to the Arkansas Basin in eastern Colorado; and to furnish regulatory storage capacity and water to users in western Colorado for irrigation, municipal, domestic and industrial uses. Incidental purposes include recreation and conservation of fish and wildlife resources; b. The capital costs for the construction of Ruedi Reservoir are allocated among the various authorized purposes. The regulatory purpose has been allocated $9,222,000 representing that portion of the capital costs consisting of the initial construction cost plus interest during construc- tion. Pursuant to the provisions of Section 2 of the Act of August 16, 1962, as amended, this amount is reimbursable in not more than 50 years from August 1969 when Ruedi Reservoir was placed in service. In authorizing the construction, operation and maintenance of Ruedi Reservoir as a feature of the Fryingpan-Arkansas Project, it was the intent of Congress that future users of the regulatory capacity repay the capital costs and appropriate share of the operation, maintenance and replacement costs related thereto. Interest charges on the $9,222,000 did not accrue for the 10 -year period ending in August 1979 under the provisions of the Water Supply Act of 1958. Interest has accrued since that date. As of September 30, 1981, unpaid capital costs of Ruedi Reservoir allocated to the regulatory purpose were $9,792,000; o Tt:e,ep s#r� -� requires= -=1D0 iacre-feet=of ater-=;annualIy -ft*— muritt1 an `3omes iff— urposesinciudiesidential;-commerciai.and=•other rnu•nitipEl =Tel ated •water -uses . 2 • d. The District desires to contract, pursuant to the Federal Reclamation Laws and the laws of the State of Colorado, for the supply of up to 100 acre-feet of water annually from the regulatory capacity of Ruedi Reservoir for which the District will make payment to the United States upon the basis, at the rates, and pursuant to the conditions hereinafter set forth; and, e. The United States desires to provide and is capable of provid- ing the required 100 acre-feet of water annually from the regulatory capacity of Ruedi Reservoir. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows: DEFINITIONS 1. Where used herein, unless specifically expressed otherwise or obviously inconsistent with the intent hereof, the term: a. "United States" shall mean the United States of America, acting through the Secretary of the Interior (hereinafter the "Secretary") or his duly authorized representative. b. "Contracting Officer" shall mean the Regional Director, Lower Missouri Region, Bureau of Reclamation. Unless deemed otherwise, the Contracting Officer shall be the Secretary's authorized representative. c. "Project" shall mean the Fryingpan-Arkansas Project, Colorado. d. "District" shall mean the West Divide Water Conservancy District, a conservancy district of the State of Colorado, with its princi- pal place of business in Rifle, Colorado. 3 Art. 1 e. "Delivery" shall mean the delivery of water into the Fryingpan River at the outlet works of the Ruedi Reservoir pursuant to request made by the District in accordance with the provisions of Article 5. f. "Standby charge" shall be that annual charge to reserve the right for delivery of up to 100 acre-feet of water per year. g. "Delivery charge" shall be that annual charge for the amount of water requested for delivery by the District and delivered by the United States into the Fryingpan River at the outlet works of Ruedi Reservoir. For purposes of this contract, the minimum quantities set forth in the attached Schedule A shall be deemed to have been requested for delivery by the District. h. "Year" shall mean the period beginning on January 1 and ending the following December 31. i. "Replacement capacity" shall mean that portion of the total capacity of Ruedi Reservoir required to permit project diversions at times when such diversions could not otherwise be made because of simultaneous demands of senior diversions in western Colorado existing on April 30, 1959, and as further defined in Section 6(a) of the Operating Principles, Fryingpan-Arkansas Project. j. "Regulatory capacity" shall mean that portion of the total capacity of Ruedi Reservoir not needed for replacement purposes and as further defined in Section 6(b) of the Operating Principles, Fryingpan- Arkansas Project. k. "Ruedi Reservoir" shall mean the dam, reservoir and related facilities constructed on the Fryingpan River above the town of Basalt as a feature of the Fryingpan-Arkansas Project. 4 Art. 1 • • 1. "Municipal, domestic and related uses" (hereinafter "municipal") shall mean use of water furnished to municipalities or other entities pursuant to this contract for municipal, domestic and miscellaneous related purposes, as those terms are traditionally and commonly construed, excluding use for industrial and commercial -agricultural purposes. m. "Industrial uses" shall mean water used for producing or processing a nonagricultural product for sale. For purposes of this defini- tion, the use of less than 100 acre-feet annually by any one user shall be conclusively presumed to be nonindustrial. n. "Commercial -agricultural uses" shall mean water used primarily in the commercial production of crops and livestock which are the principal sources of income for the user of such water. o. "Capital costs" shall mean the capitalized investment for Ruedi Reservoir including the construction costs of the reservoir plus interest during construction and accrued interest computed at the rate of 3.046 percent and other appropriate costs allocable to the regulatory capacity, including the cost of additions as defined in subarticle r below, as determined in accordance with the regular accounting procedures of the Contracting Officer as of the date of this contract. p. "Operation and maintenance costs" shall mean and shall be limited solely to those ordinary and necessary expenditures directly incurred to operate and maintain Ruedi Reservoir to the extent and for the purpose for which it was originally authorized and constructed. Operation and maintenance shall not include expenditures required to remedy deficien- cies in the original construction. 5 Art. 1 q• "Repl anent costs" shall mean and silk be limited solely to the expendi tures requi red to remedy conditions brought about by the ordi nary use of Ruedi Reservoir or to restore or replace components of the existing reservoir. For purposes of this contract, replacement costs shall be those costs allocable to the regulatory capacity but shall not include expenditures to increase the capacity of Ruedi Reservoir or to extend the purpose for which it was originally authorized and constructed. r. "Addi ti ons" shal 1 mean any new f aci 1 i ti es necessary to fulfill the intent and purpose for which Ruedi Reservoir was originally authorized and constructed. 2. a. T TERM OF THE CONTRACT St "1 nnT1T"1"trtf e S S atcurd w1-th thi''pro sons of Arti c"ci e 8. b.e D i s tr i s s a av2—tile tirin a -# -urratldit1oii 1'°` e years bn tr-rertvelt to the Secretary on or years prior to the expiration of this contract. Renewal of this contract shall be upon the same terms "and conditions set forth in • Articles..3.a - ""herein; provided, however, that all other terms and conditions, including the water service charges set forth in Article 4, may be renegotiated by the parties based on Federal Reclamation Laws in effect at that time. CONTRACTED SERVICE 3. t:431_+aattr—se ce acMuali3*-4-mr-•-•tuedi• i"? and the United States agrees to provide such water service, subject to the terms and conditions of this contract. 6 Art. 1, 2, 3 • • WATER SERVICE CHAT 4. a. The minimum =standby•tharge-.wily-, an -annual -=charge -,f -S6 -pets acre=-foot-for'the- a mount--of-water-contracted--for-hereir-and' wfritt Tare=iirrte1 States"is dapabing ti cthe"flistrict_ The.-=rstarrdby arge---w.i1 become -due --upon- execution-vf- this--contratt and thereafter payable on or before `3anuary- -1--of each subsequent year of this contract. The standby charge for the first year, if less than a full contract year, will be prorated on a monthly basis beginning with the first calendar month follow- ing the date of this contract. S proralrt-d"S'Lt-ri -a e-wr 4mbeaciue-,and pciyab le- on-'or--before-5-vays 'aiter``Eie'tTa'e'bf l"tufitraCt . The standby charge represents interest on the reimbursable capital costs plus annual operation, maintenance and replacement charges allocable to the 100 acre- feet of the regulatory capacity contracted for herein. binimJm =tiiar'ge-Tor ijell very-trf—watert reques} heft Dastritt—hail=kbeY'�9 Wiper acre=foot. The delivery charge represents the amount required for repayment of the unpaid reimbursable capital costs of Rued i Reservoir 41-3- -bevmddition o-Afie-mstanrlby.ch,arge . c. Whether or not the District requests delivery pursuant to Article 5, the„,pj,stmt--,is=-.requir.ed—te--twice- fir; °-fiafiting°^to-#-ake o -$ay... . nnua44 the -tlei very -ch argeminimum-1uantfity Towater ass 47-6rlirin4k ttie,ait-ached-Sctrercrfitr"A;-Provided the United States is capable of delivering said water. The charge for the minimum service set forth in Schedule A shall be payable on or before- anuary=-1-Df='ach year. d. The ped.'r*.fvot ,ar-gessetgor;th in Article 4a and b above may be reviewed 4,ncl-siedjtfsttfFitry the Contracting Officer, after consultation with the District, catt year=ar,t.Bata}s--.beg#rttiittg'7a-Tivar:j%1,-198 , based on 7 Art. 4 • i Federal fiscal year accounting, except that--fro-adjustments'sba11"'bE-made--in—' .he-ded-ivery- arge--or"'tthe-'interest ' componenlOf ttre -s tandby -charge-vntli demtr-aty' "3'991', subject to the following conditions and limitations: (1) The standby charge may be increased only to reflect increases in the portion of accrued interest on the reimbursable capital costs plus annual operation, maintenance and replacement (0M&R) charges allocable to the 100 acre-feet of the regulatory capacity contracted for herein. Adjustments in the OM&R component shall be based on a projection of expenses for those components in the succeeding 5 Federal fiscal years taking into account the actual expenditures for OM&R during the preceeding 5 Federal fiscal years. (2) The delivery charge may be increased only to reflect var.iancec,,411-expectstr8mottzaticrn of the reimbursable capital costs due to changes in historical or projected water deliveries, capital costs and cost allocations. For the purposes of this article, the amortization period for the regulatory capacity of Ruedi Reservoir will end in the year 2019. (3) The increase in the per acre-foot standby charge plus the increase in the per acre-foot delivery charge at any 5 -year interval may not- esu1t- irr-.tato1acfrarges--which=Texceed---t-he-max4mum= mounts, -.set,. hs„ f Ql, l ox�s� Mdx inTum tsfi: Year 1991-1995 $19.50 per acre-foot 1996-2000 $25.35 per acre-foot 2001-2005 $33.00 per acre-foot 2006-2010 $42.80 per acre-foot 2011-2019 $55.00 per acre-foot 8 Art. 4 • • (4) The maximum water service charge per acre-foot of water contracted for herein, including both standby and delivery charges, shall not exceed $55 per acre-foot during the term of this contract. (5) The Contracting Officer will notify the District in writing of any adjustment in the water service charges pursuant to Article 4d at least 60 days prior to the effective date of such adjustment. e,�r-payment--seV°quart-eray -advance--of-delivery-ford gbant-irfe§-in=,exces's of .the -minimum .sery*cam payments-rEt{iiired-by Artf�e Such payment shall be based on the delivery schedule submitted by the District pursuant to Article 5a. The Contracting Officer will provide the District with a quarterly statement of water delivered and any additional delivery charges due based on said projected schedule, whereupon payment of such additional delivery charges shall be made by the District within 30 days of receipt of such statements. Adjustments in payment for any differences between actual and scheduled deliveries of water will be made during the succeeding quarter. Water service and deliveries under this contract will not be terminated because of the Contracting Officer's failure to bill the District for delivery charges. f. Until such time as all capital costs are repaid, the United States will apply all revenues for providing water service from the regu- latory capacity of Ruedi Reservoir to the payment of operation, maintenance and replacement costs, interest on the unpaid balance of the capital costs, and the capital costs including interest during construction which are allocated to the regulatory capacity. 9 Art. 4 s • DELIVERY OF WATER 1111 5. -ate---Befa--e'Octotrer 1 Df tart, yew, t1i- wr" en schedu e to th'e Conti act my Off r - • • demand for the delivery of water during the following year. The District shall revise said schedule as necessary to reflect its expected demand schedule based on current water conditions. Notwithstanding the above, the D 1 s tr l h aTl`b e- en t i t-1 ed -tII ake `t! e'11 \7C ry 0 w aT r rnTa � any time upon` 24 hours not ice tr'"The on ractinT"pl`l-inr—or a designated representative. All notices requesting delivery or a change in the delivery schedule shall be in writing. However, orders which cannot be transmitted in writing due to urgent or emergency situations may be telephoned to the Contracting Officer or a designated representative, whereupon such orders shall be confirmed in writing by the District. b. The Contracting Officer will timely notify the District and Division No. 5 Engineer, Colorado Division of Water Resources, in Glenwood Springs, Colorado, of the date, time and amount of all water released from Ruedi Reservoir and delivered pursuant to this contract. c. In the event the District fails or is unable to use the quantities of water delivered by the United States pursuant to a request by the District, said inability, failure or refusal shall not relieve the District of the obligation to pay for delivery of such water pursuant to the terms of this contract. d. The delivery of water under this contract will be made into the Fryingpan River at the outlet works of Ruedi Reservoir in accordance with the provisions of Article 5a. All delivery of water will be limited by the outlet capacity of Ruedi Reservoir. All water delivered to the 10 10 Art. 5 • • District from Ruedi Reservoir will be measured by the Contracting Officer with equipment furnished, operated and maintained by the United States. The United States will not be responsible for the control, carriage, use, handling or distribution of water delivered to the District beyond the delivery point and the District shall hold the United States harmless from and against all claims, demands and causes of action on account of property damage, personal injury or death resulting from the control, carriage, use, handling or distribution of water delivered to the District, provided such water is delivered in a safe and reasonable manner. e. The District will not be responsible for the storage of water in or the operation and maintenance of Ruedi Reservoir and the United States shall protect, indemnify and hold the District harmless from and against all claims, demands and causes of action of any nature whatsoever resulting from or in any manner connected .with the storage of water in or the operation and maintenance of Ruedi Reservoir within the limits of the Federal Tort Claims Act (28 U.S.C. Secs. 2671-2680). DISTRICT'S USE OF WATER a 44.at —de+ ' frIntritrer fi s rrtrac iii= y --" tyr- y—Txt#tenge-zitir hrnu g h,augmetrt "i t) t i �t 41 ttTn1t-i7a-i ' pu r loss -w4 tfi-rr-tt r-10 i b. The District may charge its users for municipal ursuant to this services contract. c. - .1• . • cap pr g or all water delivered under this contract. The District's water conservation program shall contain definite goals, 11 Art. 5, 6 • appropriate water conservation measures and time schedules for meeting water conservation objectives. Said water conservation program shall be in existence prior to the delivery of water under this contract and shall be subject to approval by the Contracting Officer; provided, however, such approval shall not be unreasonably withheld. WATER SHORTAGE AND APPORTIONMENT 7. In the operation of Ruedi Reservoir, the Contracting Officer will use all reasonable means to guard against a condition of shortage in the quantity of water available to the District pursuant to this contract. To this end, the amount of water which the United States will contract to provide for a supply for municipal and industrial water service shall be based on hydrologic conditions that existed in the Colorado River Basin for the 1977 water year as determined by the Contracting Officer. However, ~ should shortages occur, delivery to *a1-1. arrtT'rto Th5 " will first be reduced proportionately as--. egrrireatire—shorttrge—a-tv'•4 SQ;per-cerrt=-Jof 4.41e , espec ed-Tno-arts. Should further shortages occur, priority witl be established based on contract execution dates for all municipal and industrial users j,t.h., e-erarilest-datre having the highest priority. In no event shall any liability accrue against the United States or any of its officers, agents or employees for any damage direct or indirect arising out of such shortage. TERMINATION OF THE CONTRACT 8. a. This contract may be tiew.4%.4A41..dd and water service hereunder cease at the option of the United tates . .8 • as required by this contract or to abide by any lawful 12 Art. 6, 7, 8 411 -notice, order or final administrative or judicial determination that the District has violated a rule or regulation of the United States or the State of Colorado directly relating to and affecting water service hereunder which is not inconsistent with any expressed provision herein; Except, That this contract shall not be terminated unless such failure continues 45 days after the United States gives the District written notice of such failure. b. The Di-trTtt=loaf erminate the contract in whole or in part by either of the following methods: (1) The District may terminate the contract on Dec +ber-31 ! of-- ny=yea y iv ng wri iten- notice -to -tgie "t itractirg=!3ffiterat-=1-east� 1 year r4Dr o t i'datQ 7 (2) The District may terminate the contract as of the effec- twee at t -pry= q►c�-eas---ir--water service charges made pursuant to Article 4d try ivifg_kwr-i tten7noticc�tt5`tbe "Contracting -.10fficer-°privr'tt''c1re ef-fctiire-tate-m:rf- nyuc#r--+nrrease-" If the District elects to terminate the contract on the effective date of any such increase in water service charges, the District shall have the option (the "Option") to continue receiving water service pursuant to the terms and conditions of the present contract for a period of 5 years Lthe,,4&-yearioptitn-gttrel at the water service rates in effect prior to the effective date of the increase in question. The District may exercise the Option by giving written notice to the Contracting Officer prior to the effective date of any proposed increase in the water service charges. In the event the District exercises the Option, the District shall have the further option to renew the present contract at the end of the 5 -year option term or on any contract anniversary date during the 5 -year option term at the water service rates which would 13 Art. 8 have been in effect'ad the District not terminated the contract pursuant to this Article 8b(2); Provided, however, That the District may only exercise such further option (a) by giving 1 year prior notice in writing to the Contracting Officer, and (b) by paying the Contracting Officer within 30 days prior to the renewal date the difference between the total water service charges paid by the District during the 5 -year option term or portion thereof and the total water service charges which would have been due from the District during that same period had the District not termin- ated the contract pursuant to this Article 8b(2), plus interest at the rate stated in Article 12. 'r' g t' o -=i�c-Erive- t - V u r ua z-ontract_ther—ttraliserarice-charges' erifitte yl- ftitWTTIiTts-=-Trohib :...-*' It is the intent of the parties hereto to prohibit such sales; however, should such sales occur, the right to delivery of the quantity of water involved in such sales shall be terminated by the District at the request of the Contracting Officer. ASSIGNMENT OF THE CONTRACT 9. a. The United States may assign all or part of its interest in this contract provided the assignee has the capability to furnish water service to the District as herein provided and assumes all rights, duties and obligations under this contract. b. The District may assign all or part of its interests in this contract provided the assignee is capable of fulfilling all of the obliga- tions bliga- tions of the District pursuant to the contract and subject to the Contracting Officer's approval. Agreements between the District and its water users are not considered assignments under this article. 14 Art. 8, 9 • • BOOKS, RECORDS AND REPORTS 10. The District shall establish and maintain accounts and other books and records pertaining to its water supply and water use as either relates to this contract. Reports thereon shall be furnished to the Contracting Officer in such form and on such date or dates as he may require; provided, however, in no event shall the District be obligated to furnish such reports more than once every 3 months. In accordance with applicable Federal laws and regulations, each party shall have the right during office hours to examine and make copies of each other's books and records relating to matters covered by this contract. NOTICES 11. Any notice, demand or request authorized or required by this contract shall be deemed to have been given, on behalf of the District, when mailed postage prepaid, or delivered to the Director, Lower Missouri Region, Bureau of Reclamation, P.O. Box 25247, Denver, Colorado 80225, and on behalf of the United States, when mailed postage prepaid, or delivered to the President, West Divide Water Conservancy District, P.O. Box 1478, Rifle, Colorado 81650. The designation of the addressee or the address may be changed by notice given in the same manner as provided in this article for other notices. CHARGE FOR LATE PAYMENTS 12. The District shall pay a late payment charge on installments or charges which are received after the due date. The late payment charge percentage rate calculated by the Department of the Treasury and published quarterly in the Federal Register shall be used; Provided, That the late payment charge percentage rate will not be less than 0.5 percent per month. The late payment charge percentage rate applied on an overdue payment wi l l remain in effect until payment is received or a different rate is published. The late payment rate for a 30 -day period will be determined on 15 Art. 10, 11, 1? • • the day immediately following the due date and will be applied to the overdue payment for any portion of the 30 -day period of delinquency. In the case of partial late payments, the amount received will first be applied to the late charge on the principal and then to payment of the principal. TITLE VI, CIVIL RIGHTS ACT OF 1964 13. a. The District agrees that it will comply with Title VI of the Civil Rights Act of July 2, 1964, (78 Stat. 241) and all requirements imposed by or pursuant to the Department of the Interior Regulation (43 CFR 17) issued pursuant to that title, to the end that, in accordance with Title VI of that Act and the Regulation, no person in the United States shall, on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which the District receives financial assistance from the United States and hereby gives assurance that it will immediately take any measures to effectuate this agreement. b. If any real property or structure thereon is provided or improved with the aid of Federal financial assistance extended to the District by the United States, this assurance obligates the District, or in the case of any transfer of such property, any transferee for the period during which the real property or structure is used for a purpose involving the provision of similar services or benefits. If any personal property is so provided, this assurance obligates the District for the period during which it retains ownership or possession of the property. In all other cases, this assurance obligates the District for the period during which the Federal financial assistance is extended to it by the United States. c. This assurance is given in consideration of and for the purpose of obtaining any and all Federal grants, loans, contracts, pro- perty, discounts, or other Federal financial assistance extended after the date hereof to the District by the United States, including installment payments after such date on account of arrangements for Federal financial assistance which were approved before such date. The District recognizes and agrees that such Federal financial assistance will be extended in reliance on the representations and agreements made in this assurance, and that the United States shall reserve the right to seek judicial enforcement of this assurance. This assurance is binding on the District, its successors, transferees, and assignees. QUALITY OF WATER 14. The operation and maintenance of Project facilities shall be performed in such manner as is practicable to maintain the quality of raw water made available through such facilities at the highest level reason- ably attainable as determined by the Contracting Officer. The United States does not warrant the quality of water and is under no obligation 16 Art. 12, 13, 14 • • • to construct or furnish water treatment facilities to maintain or better the quality of water. WATER AND AIR POLLUTION CONTROL 15. The District, in carrying out this contract, shall comply with all applicable water and air pollution laws and regulations of the United States and the State of Colorado and shall obtain all required permits or licenses from the appropriate Federal, State, or local authorities. BENEFITS CONDITIONED UPON PAYMENT 16. The payment of charges becoming due hereunder is a condition precedent to receiving benefits under this contract. No water will be made available to the District through project facilities during any period in which the District may be in arrears in the payment of any water service charges due the United States pursuant to Article 4. EQUAL OPPORTUNITY 17. During the performance of this contract, the District agrees as follows: a._Le- Dis#.r3ct.-- vi4d-.not--. Liszr4minat-e....agnst any employee or applicant for employment because of race, color, religion, sex, or national origin. The -District will take affirmative action to ensure that applicants are employeed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The District agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Contracting Officer setting forth the provisions of this nondiscrimination clause. -b --T1 e — ter i c_tyti11, ; 4d 1 so tat -i spa d yPr-t- tTeme tt§ fbr'•-emp.lo-gees placed by or on behalf of the District, state that all qualified applicants will receive consideration for employment without discrimination because of race, color, religion, sex, or national origin. • • • -presentative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the Contracting Officer, advising the said labor union or workers' representative of the District's commitments under Section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 17 Art. 14, 15, 16, 17 • • d. Th ---0 strict 'will comply with all provisions of Executive Ortier--No--1 6-of--September-24,J965., as amended, and of the rules, regulations, and relevant orders of the Secretary of Labor. e. The District will furnish all information and reports required by said amended Executive Order and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by the Contracting Officer and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. f. In the event of the District's noncompliance with the nondis- crimination clauses of this contract or with any of the such rules, regula- tions, or orders, this contract may be canceled, terminated, or suspended, in whole or in part, and the District may be declared ineligible for further Government contracts in accordance with procedures authorized in said amended Executive Order, and such other sanctions may be imposed and remedies invoked as provided in said Executive Order, or by rule, regula- tion, or order of the Secretary of Labor, or as otherwise provided by law. gv''"*btrt-O-i-Strict riiT tit ude -paragral5ns•-ate through - -tm ever ubcontract-mr-purcbese-order=-uninss exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of said amended Executive Order, so that such provisions will be binding upon each subcontractor or vendor. The District will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, That in the event the District becomes involved in, or is threatens with, litigation with a subcontractor or vendor as a result of such direction, the District may request the United States to enter into such litigation to protect the interests of the United States. CERTIFICATION OF NONSEGREGATED FACILITIES 18. The_ ni c tr it erby-cert4fyes-til`3tm'tt--does rot-natntITIT''br prov isle fa i.ts--.employees --any-=segregated--ftti11titl-'at any of its establishments, and that it does not permit its. employees to perform their services at any location, under its control, where segregated facilities are maintained. It certifies further that it will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it will not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. The District agrees that a breach of this certification is a violation of the Equal Opportunity clause in this contract. As used in this certi- fication, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit 18 Art. 17, 18 • • directive or are in fact segregated on the basis of race, creed, color, or national origin, because of habit, local custom, or otherwise. The District further agrees that (except where it has obtained identical certifications from proposed subcontractors for specific time periods) it will obtain identical certifications from proposed subcontractors prior to the award of subcontracts exceeding $10,000 which are not exempt from the provisions of the Equal Opportunity clause; that it will retain such certifications in its files; and that it will forward the following notice to such proposed subcontractors (except where the proposed subcontractors have submitted identical certifications for specific time periods): NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES A Certification of Nonsegregated Facilities must be submitted prior to the award of a subcontract exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause. The certification may be submitted either for each subcontract or for all subcontracts during a period (i.e., quarterly, semiannually, or annually). Note: The penalty for making false statements in offers is prescribed 'in 18 U.S.C. 1001. OFFICIALS NOT TO BENEFIT 19. No Member of or Delegate to Congress or Resident Commissioner shall be admitted to any share or part of this contract or to any benefit that may arise herefrom. This restriction shall not be construed to extend to this contract if made with a corporation or company for its general benefits. CONTINGENT ON APPROPRIATION OR ALLOTMENT OF FUNDS 20. The expenditure or advance of any money or the performance of any obligation by the United States hereunder which may require appropriation of money by the Congress or the allotment of funds shall be contingent upon such appropriation or allotment being made. The failure of the Congress to appropriate funds or the absence of any allotment of funds shall not relieve the District from any obligations under this contract. No liability shall accrue to the United States in case such funds are not appropriated or allotted. 19 Art. 18, 19, 20 • • IN WITNESS WHEREOF, the parties hereto have executed this contract the day and year first above written. WEST DIVIDE WATER CONSERVANCY DISTRICT 'ecretary (SEAL) By /CI Presicen THE UNITED STATES OF AMERICA 20 Regional Director Lower Missouri Region Bureau of Reclamation STATE OF COUNTY OF ACKNOWLEDGEMENT I do hereby certify that ,K.7 1d=..e , Pres dent of West Divide Water Conservancy Iistr ct, an. x / 1,, z/ f- -4,,, Secretary of West Divide Water Conservancy District, whose -names are subscribed- in ubscribedin the foregoing instrument as such officers, appeared before me this day in person and acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act and deed of said West Divide Water Conservancy District for the uses and purposes therein set forth. Given under my hand and official seal this /' day of Mil 19ri (SEA My commission expires: STATE OF COUNTY OF ACKNOWLEDGEMENT The f regoing instrument was acknowled d before me his /'Y day of ,�� , 19 Kms, by /. S.' )77 g- , as Regional Director for the Lower Missouri Region, Bureau of Reclamation, United States of America, on behalf of the United States of America. Witness my hand and official seal. (SEAL) My commission expires: 67/ GeoC4At..// No arx Public /00 �Q C?G • • SCHEDULE A WATER SERVICE CONTRACT BETWEEN THE UNITED STATES AND WEST DIVIDE WATER CONSERVANCY DISTRICT Minimum Service for Which Delivery Charge Must be Paid Annually Year Minimum Acre -Feet 1983 1 1984 3 1985 6 1986 10 1987 15 1988 21 1989 28 1990 36 1991 45 1992 55 1993 and thereafter 60 LOYAL E. LEAVENWORTH KEVIN L. PATRICK JAMES S. LOCHHEAD PETER A. MILWID 411) EXHIBIT "7" 411, LEAVENW013TH, PATRICK dr LOCHHEAD, P. C. FILE COPY ATTORNEYS AT LAW i / i L. t I;71I 1011 GRAND AVENUE P. 0. DRAWER 2030 GLENWOOD SPRINGS. COLORADO 81601 TELEPHONE: (303) 945-2261 January 21, 1983 Dan Kerst, Esq. Schenk & Kerst Alpine Professional Building, Suite 201 817 Colorado Avenue Glenwood Springs, CO 81601 Re: Lazier-Sills/Johnson-Wolverton Ditch Com an A.reement Dear Dan: Enclosed is a proposed agreement between the Lazier/Sills Partnership and the Johnson -Wolverton Ditch Company to resolve the current dispute and provide for future maintenance of the Ditch. This agreement, I believe, reflects discussions between Jimmy Sills and representatives of the Ditch Company. You will note that the agreement contemplates that the Ditch Company is representing all of the owners of water rights in the Ditch. I believe the Company should make sure that all owners of water rights in the Ditch are members of the Company or, in the alternative, that all owners that are not stockholders in the Company are signatories to the agreement. I think this is only fair as I am sure you can understand that the Lazier/Sills Partnership does not want to incur any further liability to any water rights owner who is not a signatory to this agreement especially given the magnitude of the payment to the Ditch Company. After you have had a chance to review this agreement, please give me a call. JSL:ljd cc: Jimmy M. Sills Very truly yours, LEAVENWORTH, PATRICK & LOCHHEAD, P.C. J:mes S 1 Lochhead 1 a • DRAFT AGREEMENT THIS AGREEMENT, entered into as of last date below written, by and between the Lazier/Sills Partnership, a Colorado general partnership whose address is P. 0. Box 981, Glenwood Springs, Colorado 81602, (hereinafter referred to as "Lazier/Sills") and the Johnson -Wolverton Ditch Company, a Colorado non-profit cor- poration (hereinafter referred to as the "Ditch Company"), whose address is 46419 Highway 6, Glenwood Springs, Colorado 81601. WITNESSETH: WHEREAS, Lazier/Sills is the owner of that certain property described on Exhibit A attached hereto and incorporated herein by this reference; and WHEREAS, the Ditch Company is the owner of the water, water rights and ditch rights in and to the Johnson Ditch decreed on November 15, 1905, in the District Court in and for Garfield County, Priority No. 143(D), in former Water District No. 39, with a priority date of May 21, 1889, for .16 c.f.s.; the Johnson Ditch First Enlargement decreed March 6, 1906, in the District Court in and for Garfield County, Priority No. 143(D), in former Water District No. 39, with a priority date of May 21, 1889, for .9 c.f.s.; the Johnson Ditch Second Enlargement decreed on September 5, 1952, in the District Court in and for Garfield County, Priority No. 260, in former Water District No. 39, with a priority date of May 10, 1950 for .5 c.f.s.; the Johnson Ditch Third Enlargement decreed on November 10, 1966, in the District Court in and for Garfield County, Priority No. 313, in former Water District No. 39, with a priority date of May 1, 1954, for 2.1 c.f.s. and the Wolverton Ditch decreed November 15, 1905, in the District Court in and for Garfield County, Priority No. 21(A), in former Water District No. 39, with a priority date of March 1, 1884, for .4 c.f.s.; and -1- • WHEREAS, certain disagreements have arisen between the par- ties with regard to.the use and operation of the Johnson and Wolverton Ditches as a result of the development of the property described in Exhibit A as the Canyon Creek Estates P.U.D.; and WHEREAS, the parties desire to provide for the payment of certain sums by Lazier/Sills to the Ditch Company for use by the Ditch Company for operation and maintenance of the Ditch. NOW THEREFORE, for and in consideration of the mutual promi- ses and covenants herein set forth, the parties agree as follows: 1. Lazier/Sills shall pay to the Ditch Company the sum of $5,000 within thirty (30) days from the date of the recording of the final plat for the Canyon Creek Estates P.U.D., and shall further pay to the Ditch Company the sum of $1,000 (for each of the first forty-five (45) dwelling units to be ldcated within the Canyon Creek P.U.D.) within thirty (30) days from the day that a certificate of occupany is issued for each such dwelling unit, for a total payment of $50,000. The Ditch Company hereby covenants and agrees that it will utilize such money solely for the normal opera- tion and maintenance expenses incident to that portion of the Johnson -Wolverton Ditches that run across the Lazier -Sills Property. Specifically, but without limita- tion, the expenditures of such sum shall be limited solely to administration expenses, legal expenses, engineering expenses, repair of facilities, and ditch cleaning such that the Ditch will continue to be able to run the amount of water presently decreed to it along its present course as shown on the final plat for the Canyon Creek Estates P.U.D. The Ditch Company agrees that it will not use such money for enlargement or realignment of the Ditch except upon the express written authorization of the Lazier/Sills Partnership and the Homeowners Association of the Canyon Creek Estates P.U.D. 2. The Ditch Company hereby releases and agrees to defend and hold forever harmless the Lazier/Sills Partnership, its successors and assigns (including the Homeowners Association of the Canyon Creek P.U.D.) from any further liability related to the operation, maintenance, enlargement or improvement of the Johnson and Wolverton Ditches. Specifically, but without limitation, Lazier/Sills shall be released from any further liability for assessments or contribution to the operation, maintenance, enlargement or improvement of the Ditch as a result of its ownership of water rights in the Ditch or as a result of its ownership of stock in the Ditch Company. 3. The Ditch Company hereby agrees to release, defend, indemnify and hold forever harmless the Homeowners Association of the Canyon Creek Estates P.U.D. and the Lazier/Sills Partnership from any liability whatsoever related to the operation and maintenance of the Johnson and Wolverton Ditches including, without limitation, any damages to the Ditch or to any third party related to overflow, washout or any other cause, natural or man made, except those damages caused by the active negligence of the Lazier/Sills Partnership or the Homeowners Association of the Canyon Creek Estates P.U.D. 4. The Ditch Company warrants that all owners of water rights and ditch rights in the Johnson and Wolverton Ditches are the owners of stock in the Ditch Company and that the Ditch Company and its officers are authorized to enter into this Agreement and bind all owners of water and water rights, ditch and ditch rights in the Johnson and Wolverton Ditches. 5. This Agreement shall be binding upon the parties, their heirs, successors and assigns forever and it is the intent of the parties hereto that this Agreement constitute covenants running with the land described in Exhibit A and with the water rights and ditch rights for the Johnson and Wolverton Ditches•. The prevailing party in any legal action commenced pursuant to the .provisions of this Agreement shall, in addition to any damages sustained, recover the costs of suit and reasonable attorneys fees occurred in con- nection with any such action. WHEREFORE, 'the parties hereunto set their hands and seals as of the day and year below written. Date: By LAZIER/SILLS PARTNERSHIP, a Colorado General Partnership Jimmy M. Sills JOHNSON-WOLVERTON DITCH COMPANY, a Colorado Non-profit Corporation Date: By President ATTEST: Secretary STATE OF COLORADO ) ss. County of ) The foregoing instrument was acknowledged before me this day of , 1983, by Jimmy M. Sills, as general partner of the Lazier/Sills Partnership, a Colorado general partnership. WITNESS my hand and official seal. My Commission expires: Notary Public Address: STATE OF COLORADO ) ss. County of ) The foregoing instrument was acknowledged before me this day of , 1983, by as President, and , as Secretary for the Johnson -Wolverton Ditch Company. -4- • WITNESS my hand and official seal. My Commission expires: Notary Public Address: JOHN R SCHENK DAN KERST WILLIAM J. DEWINTER, 111 SCHENK, KERST & DEWINTER �J ATTORNEYS AT LAW SUITE 201, 817 COLORADO AVENUE 11 (303) 945-2447 March 9, 1983 Mr. James S. Lochhead Attorney at Law 11011 Grand Avenue P.O. Drawer 2030 Glenwood Springs, CO. 81602 Re: Lazier-Sills/Johnson-Wolverton Agreement Dear Jim: I have met with the Board of Directors of the Ditch Company and have reviewed the draft of Agreement which you have provided me with your letter of January 21, 1983. Following my discussions with the Directors, I have prepared•a revised draft of Agreement and enclose the same for your review. In case it is not clear from the revised Agreement, the Ditch Company intends to continue to assess water users in the Johnson and Wolverton Ditches for maintenance and operation expenses at the level historically experienced which has been arbtrarily set at a total of Six Hundred Dollars ($600.00) per year. They deem this position to be consistent with their use of the monies received from Lazier/Sills for increased maintenance and operating costs resulting from the impact of the Lazier/Sills development. In any event, it would not be appropriate for Lazier/Sills to escape the payment of future Ditch Company assessments, so long as the assessments are levied against all users in proportion to their rights in the Ditches. You will also note that I have attempted to conform the payment program to the terms which were previously agreed upon in our earlier negotiations with Lee and Jimmy. Of course the original Agreement had provided that the initial Five Thousand Dollars ($5,000.00) would be paid at preliminary plat approval and not at final plat. Please review the revised Agreement with your clients and, if acceptable, we can proceed to have the Agreement executed as appropriate. Thank you for your consideration in this regard. DK/rc Encl: cc: Directors, Johnson -Wolverton Ditch Company •r AGREEMENT THIS AGREEMENT, entered into as of last date below written, by and. between the Lazier/Sills Partnership, a Colorado general partnership whose address is P.O. Box 981, Glenwood Springs, Colorado 81602, (hereinafter referred to as "Lazier/Sills") and the Johnson -Wolverton Ditch Company, a Colorado non-profit corporation (hereinafter referred to as the "Ditch Company"), whose address is 46419 Highway 6, Glenwood Springs, Colorado 81601. WITNESSETH: WHEREAS, Lazier/Sills is the owner of that certain property described on Exhibit "A" attached hereto and incorporated herein by this reference; and WHEREAS, the Ditch Company is the owner of the water, water rights and ditch rights in and to the Johnson Ditch decreed on November 15, 1905, in the District Court in and for Garfield County, Priority No. 143(D), in former Water District No. 39, with a priority date of May 21, 1889, for .16 c.f.s.; the Johnson Ditch First Enlargement decreed March 6, 1906, in the District Court in and for Garfield County, Priority NO. 143(D), in former Water District No. 39, with a priority date of May 21, 1889, for .9 c.f.s.; the Johnson Ditch Second Enlargement decreed on September 5, 1952, in the District Court in and for Garfield County, Priority No. 260, in former Water District No. 39, with a priority date of May 10, 1950 for .5 c.f.s.; the Johnson Ditch Third Enlargement decreed on November 10, 1966, in the District Court in and for Garfield County, Priority No. 313, in former Water District No. 39, with a priority date of May 1, 1954, for 2.1 c.f.s. and the Wolverton Ditch decreed November 15, 1905, in the District Court in and for Garfield County, Priority No. 21(A), in former Water District No. 39, with a priority date of March 1, 1884, for .4 ___c.f.s.; and WHEREAS, certain disagreements have arisen between the parties with regard to the use and operation of the Johnson and Wolverton Ditches as a result of the development of the property described in Exhibit "A" as the Canyon Creek Estates P.U.D.; and WHEREAS, the parties desire to provide for the payment of certain sums by Lazier/Sills to the Ditch Company for use by the Ditch Company for the expenses of operating and maintaining the ditch which exceed the expenses historically incurred by the Ditch Company for such purposes. NOW THEREFORE, for and in consideration of the mutual promises and covenants herein set forth, the parties agree as follows: 1. Lazier/Sills shall pay to the Ditch Company the sum of Five Thousand Dollars ($5,000.00) on or before the recording of the final plat for the Canyon Creek Estates P.U.D.; shall further pay to the Ditch Company the sum of Twenty Thousand Dollars ($20,000.00) at the rate of One Thousand Dollars ($1,000.00) for each of the first twenty (20) dwelling units to'be located within said P.U.D., payable at or before the issuance of a building permit for each such unit; and shall further pay to the Ditch Company the sum of Twenty Five Thousand Dollars ($25,000.00) at the rate of One Thousand Dollars ($1,000.00) per unit for each of the next twenty-five (25) dwelling units to be located within said P.U.D., payable at or before the issuance of a certificate of occupancy for each such unit. It is understood and agreed that the total payment to be made to the Ditch Company by Lazier/Sills pursuant to this Agreement shall be Fifty Thousand Dollars ($50,000.00). The Ditch Company hereby covenants and agrees that it will utilize such money for those operation and maintenance expenses related to the Johnson -Wolverton Ditches which exceed the historic operating and maintenance expenses related to said ditches. It is understood and agreed in this regard that the historic annual operation and maintenance expense for the ditches is hereby established as Six Hundred Dollars ($600.00) per year. The expenditures of sums received by the Ditch ATTEST: Secretary STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 1983, by Jimmy M. Sills, as general partner of the Lazier/Sills Partnership, a Colorado general partnership. Witness my hand an official seal. My Commission expires: STATE OF COLORADO COUNTY OF of ) ) ) ss. Notary Public Address The foregoing instrument was acknowledged before me this day , 1983, by , as President, and Johnson -Wolverton Ditch Company. Witness my hand an official seal. My Commission expires: , as Secretary for the Notary Public Address The undersigned owners of water and ditch rights in the Johnson and/or Wolverton Ditches have elected not to become shareholders in the Johnson -Wolverton Ditch Company, but do hereby consent to and join in the foregoing Agreement and hereby authorize the Johnson -Wolverton Ditch Company to receive all payments to be made pursuant to said Agreement) which payments shall be used by the Ditch Company for the benefit of the Johnson and Wolverton Ditches in accordance with the provisions of the foregoing Agreement. 3 • A) < a H 3 0 r• 0 (D H 0 art (D CD a N (nw0 0 (o .,v'i w to •r•O rt (D rt 0 rt 0 a' 7C J rt fi rt r. 0 H ? v O (r (D w rt `.1. rt,. 0. 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