HomeMy WebLinkAboutWater Allotment ContractBASALT WATER CONSERVANCY DISTRICT
WATER ALLOTMENT CONTRACT NO. 687
Pursuant to C.R.S. § 37-45-131
SHARON BOUCHER and ALFRED MARCEL HESS, as joint tenants (collectively,
hereinafter "Applicant") has applied to the Basalt Water Conservancy District (hereinafter
the "District") a political subdivision of the State of Colorado, organized pursuant to and
existing by virtue of Section 37-45-101, Colorado Revised Statutes, et seq., for an allotment
contract for beneficial use of water rights owned, leased, or hereafter acquired by the
District ("Contract"). By execution of this Contract, Applicant agrees to the following terms
and conditions and those certain terms and conditions set forth in the attached Order,
which is fully incorporated as a part of this Contract:
1. QUANTITY: In consideration of the covenants and conditions herein
contained, Applicant shall be entitled to receive and apply to beneficial use 0.033 cubic feet
of water per second from the District's direct flow rights and 0.4 acre feet per year of
storage or other augmentation water owned or controlled by the District. Applicant shall
restrict actual diversions and consumptive use under this Contract to these amounts. The
Contract amount is based on the water requirements table attached hereto as Exhibit B.
Any increase or change in the water requirements to be served by the District will require
an amendment to the subject Contract.
2. SOURCE OF ALLOTTED WATER; Water rights allotted pursuant to this
Contract shall be from the District's water rights decreed to the Basalt Conduit, Landis
Canal, Stockman's Ditch Extension, Troy and Edith Ditch, Robinson Ditch, or other water
rights hereafter acquired by the District, including the District's right to receive storage
water from Ruedi Reservoir and Green Mountain Reservoir. The District shall have the
right to designate the water right or Decree of the District from which the Applicant's
allotted rights shall be obtained. The Applicant's use of any of the District's water rights
shall be subject to any and all terms and conditions imposed by the Water Court on the use
of the District's said rights. Exchange or augmentation releases made from the District's
storage rights in Ruedi or Green Mountain Reservoirs or other works and facilities of the
District shall be delivered to the Applicant at the outlet works of said storage facility and
release of water at such outlet works shall constitute full performance of the District's
delivery obligation. Delivery of water from the District's storage rights in Ruedi or Green
Mountain Reservoir shall be subject to the District's lease contract with the United States
Bureau of Reclamation and any rules and regulations promulgated pursuant thereto.
Releases from other facilities available to the District shall be subject to the contracts, laws,
rules, and regulations governing releases therefrom. Furthermore, the District hereby
expressly reserves the right to store water and to make exchange releases from structures
2017-0407 Contract No. 687.doc 1
that may be built or controlled by the District in the future, so long as the water service to
the Applicant pursuant to this agreement is not impaired by said action.
3. At Applicant's request, this water allotment contract supply and applicant's
structure(s) benefited hereunder have been included in the District's umbrella plan for
augmentation decreed in Case No. 02CW77 ("Umbrella Plan"). Applicant agrees to pay
$1,200.00 for inclusion in the Umbrella Plan contemporaneously with acceptance of this
Order, unless otherwise agreed in writing by the parties, which amount is based on and
limited to the type(s) and amount of water use made by Applicant as detailed in Exhibit B
to this Water Allotment Contract.
4. PURPOSE AND LOCATION OE USE: Applicant will use the water rights
allotted pursuant to this Contract for beneficial purposes by diversion at Applicant's point
of diversion under the District's direct flow water rights and/or for use by augmentation or
exchange. Applicant will use the water allotted by the District within or through facilities
or upon lands owned, operated, or served by Applicant, which lands are described on
Exhibit A attached hereto; provided that the location and purpose of Applicant's use of said
water shall be legally recognized and permitted by the applicable governmental authority
having jurisdiction over the property served. Applicant's contemplated usage for the water
allotted hereunder is for the following use or uses:
X Domestic/Municipal _Industrial Commercial Agricultural Other
It is acknowledged that certain locations within the District may not be susceptible to
service solely by the District's water rights allotted hereunder or the District's said water
rights may not satisfy Applicant's needs and purposes. To the extent that service cannot be
achieved by use of the District's allotted water rights, or in the event said service is
inadequate, Applicant may utilize such other water rights, by way of supplementing the
District's water rights, or otherwise, as is necessary to assure water service sufficiently
reliable for Applicant's intended purpose or purposes.
All lands, facilities and areas served by water rights allotted hereunder shall be
situated within the boundaries of the District.
Any quantity of the Applicant's allocation not delivered to or used by Applicant by
the end of each water year shall revert to the water supplies of the District. Such reversion
shall not entitle Applicant to any refund of payment made for such water.
Water service provided by the District shall be limited to the amount of water
available in priority at the original point of diversion of the District's applicable water right
and neither the District, nor those entitled to utilize the District's decrees, may call on any
2017-04-07 Contract No. 687.doc 2
greater amount at new or alternate points of diversion. The District shall request the
Colorado State Engineer to estimate any conveyance losses between the original point and
any alternate point and such estimate shall be deducted from this amount in each case. The
District, or anyone using the District's decrees, may call on any additional sources of supply
that may be available at an alternate point of diversion, but not at the original point of
diversion, only as against water rights which are junior to the date of application for the
alternate point of diversion.
In the event the Applicant intends to institute any legal proceedings for the approval
of an augmentation plan and/or any change to an alternate point of diversion of the
District's water right to allow the Applicant to utilize the water allotted hereunder, the
Applicant shall give the District written notice of such intent. In the event the Applicant
develops and adjudicates an alternate point of diversion and/or an augmentation plan to
utilize the water allotted hereunder, Applicant shall not be obligated to bear or defray any
legal or engineering expense of the District incurred by the District for the purpose of
developing and adjudicating a plan of augmentation for the District. In any event, the
District shall have the right to approve the Applicant's application for change of water
right, and/or augmentation plan or other water supply plan involving the District's rights,
and the Applicant shall provide the District copies of such application and of all pleadings
and other papers filed with the Water Court in the adjudication thereof.
The District reserves the exclusive right to review and approve any conditions which
may be attached to judicial approval of Applicant's use of the District's water rights allotted
hereunder. Applicant agrees to defray any out-of-pocket expenses incurred by the District
in connection with the allotment of water rights hereunder, including, but not limited to,
reimbursement of legal and engineering costs incurred in connection with any further
water rights adjudication necessary to allow Applicant's use of such allotted water rights;
provided, however, in the event any such adjudication involves more of the District's water
rights than are allotted pursuant to this Contract, Applicant shall bear only a pro rata
portion of such expenses. Applicant shall be solely responsible for providing the
structures, works and facilities, if any, necessary to utilize the District's water rights allotted
hereunder for Applicant's beneficial use.
5. PAYMENT: Applicant shall pay annually for the water service described
herein at a price to be fixed annually by the Board of Directors of the District for such
service. Payment of the annual fee shall be made, in full, within fifteen (15) days after the
date of a notice from the District that the payment is due. Said notice will advise the
Applicant, among other things, of the water delivery year to which the payment shall apply
and the price which is applicable to that year. If a payment is not made by the due date, a
late fee of $50 (or such other amount as the Board may set from time to time) will be
assessed and final written notice of the delinquent account and late fee assessment will be
2017-04-07 Contract No. 687.doc 3
sent by the District to the Applicant at Applicant's address set forth below. If payment is
not made within thirty (30) days after said final written notice, the District may, at its
option, elect to terminate all of the Applicant's right, title, or interest under this Contract, in
which event the water right allotted hereunder may be transferred, leased or otherwise
disposed of by the District at the discretion of its Board of Directors.
In the event water deliveries hereunder are made by or pursuant to agreement with
some other person, corporation, quasi -municipal entity, or governmental entity, and in the
event the Applicant fails to make payments as required hereunder, the District may, at its
sole option and request, authorize said person or entity to curtail the Applicant's water
service pursuant to this Contract, and in such event neither the District nor such persons or
entity shall be liable for such curtailment.
6. APPROPRIATION OF FUNDS: The Applicant agrees that so long as this
Contract is valid and in force, Applicant will budget and appropriate from such sources of
revenues as may be legally available to the Applicant the funds necessary to make the
annual payments in advance of water delivery pursuant to this Contract. The Applicant
will hold harmless the District and any person or entity involved in the delivery of water
pursuant to this Contract, for discontinuance in service due to the failure of Applicant to
maintain the payments herein required on a current basis.
7. BENEFIT OF CONTRACT: The water right allotted hereunder shall be
beneficially used for the purposes and in the manner specified herein and this Contract is
for the exclusive benefit of the Applicant and shall not inure to the benefit of any successor,
assign, or lessee of said Applicant without the prior written approval of the Board of
Directors of the District.
Upon the sale of the real property to which this Contract pertains, Applicant has a
duty to make the buyer aware of this Contract and the need to assign the Contract to the
buyer. However, prior written approval of the Board of Directors of the District is required
before the assignment is effective. Payment of an assignment fee in an amount determined
by the Board shall be required as a prerequisite to approval of the assignment.
In the event the water right allotted hereunder is to be used for the benefit of land
which is now or will hereafter be subdivided or otherwise held or owned in separate
ownership interest, the Applicant may assign the Applicant's rights hereunder only to a
homeowners association, water district, water and sanitation district or other special
district, or other entity properly organized and existing under and by virtue of the laws of
the State of Colorado, and then only if such association, entity or special district establishes
to the satisfaction of the Basalt Water Conservancy District that it has the ability and
authority to assure its performance of the Applicant's obligations under this Contract. In
2017-04-07 Contract No. 687-dnc 4
no event shall the owner of a portion, but less than all, of the Applicant's property to be
served under this Contract have any rights hereunder, except as such rights may exist
through a homeowners association or special district as above provided.
Any assignment of the Applicant's rights under this Contract shall be subject to and
must comply with such requirements as the District has adopted or may hereafter adopt
regarding assignment of Contract rights and the assumption of Contract obligations by
assignees and successors, provided that such requirements shall uniformly apply to all
allottees receiving District service. The restrictions on assignment as herein contained shall
not prelude the District from holding the Applicant, or any successor to the Applicant,
responsible for the performance of all or any part of the Applicant's covenants and
agreements herein contained.
8. OTHER RULES: Applicant's rights under this Contract shall be subject to the
Water Service Plan as adopted by the District and amended from time to time; provided
that such Water Service Plan shall apply uniformly throughout the District among water
users receiving the same service from the District. Applicant shall also be bound by all
applicable law, including, for example, the provisions of the Water Conservancy Act of the
State of Colorado, the Rules and Regulations of the Board of Directors of the District, the
plumbing advisory, water conservation, and staged curtailment regulations, if any,
applicable within the County in which the water allotted hereunder is to be used, together
with all amendments of and supplements to any of the foregoing.
9. CURTAILMENT OF USE: The water service provided hereunder is expressly
subject to the provisions of that certain Stipulation in Case No. 81CW253 on file in the
District Court in Water Division 5 of the State of Colorado, which Stipulation provides, in
part, for the possible curtailment of out -of -house municipal and domestic water demands
upon the occurrence of certain events and upon the District giving notice of such
curtailment, all as more fully set forth in said Stipulation.
10. OPERATION AND MAINTENANCE AGREEMENT: Applicant shall enter
into an "Operation and Maintenance Agreement" with the District if and when the Board of
Directors finds and determines that such an agreement is required by reason of additional
or special services requested by the Applicant and provided by the District or by reason of
the delivery or use of water by the Applicant for more than one of the classes of service
which are defined in the Rules and Regulations of the Board of Directors of said District.
Said agreement may contain, but not be limited to, provision for water delivery at times or
by means not provided within the terms of standard allotment contracts of the District and
additional annual monetary consideration for extension of District services and for
additional administration, operation and maintenance costs, or for other costs to the
District which may arise through services made available to the Applicant.
2017-04-07 Contract No. 687 -dor 5
11. CHANGE OF USE: The District reserves the exclusive right to review and
approve or disapprove any proposed change in use of the water right allotted hereunder.
Any use other than that set forth herein or any lease or sale of the water or water rights
allotted hereunder without the prior written approval of the District shall be deemed to be
a material breach of this Contract.
12. PRIOR RESOLUTION: The water service provided hereunder is expressly
subject to that certain Resolution passed by the Board of Directors of the District on
September 25, 1979, and all amendments thereto, as the same exists upon the date of this
application and allotment Contract.
13. NO FEE TITLE: It is understood and agreed that nothing herein shall give the
Applicant any equitable or legal fee title interest or ownership in or to any of the water or
water rights of the District, but that Applicant is entitled to the right to use the water right
allotted hereunder, subject to the limitations, obligations and conditions of this Contract.
14. COMPLIANCE WITH SECTION 404 OF THE CLEAN WATER ACT.
Applicant shall comply with Section 404 of the Clean Water Act and consult with the Army
Corps of Engineers to complete any Section 404 compliance that may be required as a result
of the construction of any facilities necessary to use contract water.
15. CONSERVATION PRACTICES: Applicant shall implement and use
commonly accepted conservation practices with respect to the water and water rights
allotted hereunder and shall be bound by any conservation plan hereafter adopted by the
District, as the same may be amended from time to time.
16. WELL PERMIT: If Applicant intends to divert through a well, then Applicant
must provide to District a copy of Applicant's valid well permit before the District is
obligated to deliver any water hereunder, and it is the Applicant's continuous duty to
maintain a valid well permit. Applicant shall also comply with all restrictions and
limitations set forth in the well permit obtained from the Colorado Division of Water
Resources. Applicant must comply with the well -spacing requirements set forth in C.R.S. §
37-90-137, as amended, if applicable. Compliance with said statutory well -spacing criteria
shall be an express condition of the extension of service hereunder, and the District shall in
no way be liable for an Applicant's failure to comply. Applicant agrees to mark the well in
a conspicuous place with the permit number.
17. MEASURING DEVICE OR METER: Applicant agrees to provide, at its own
expense, a totalizing flow meter with remote readout to continuously and accurately
measure at all times all water diverted pursuant to the terms of Applicant's water right and
2017.04-07 Contract No. 687.doc 6
the terms of this Contract. On or before November 15 of each year, Applicant will provide
accurate readings from such device or meter (recorded on a monthly basis for the period
November 1 through October 30 of each year) to District, the Division Engineer and Water
Commissioner. Applicant acknowledges that failure to comply with this paragraph could
result in legal action to terminate Applicant's diversion of water by the State of Colorado
Division of Water Resources. By signing this Contract, Applicant hereby specifically allows
District, through its authorized agent, to enter upon Applicant's property during ordinary
business hours for the purposes of determining Applicant's actual use of water.
18. CONTRACT TERMINATION:
A. Termination by District:
1. The District may terminate this Contract for any violation or
breach of the terms of this Contract by Applicant, or Applicant's
breach of any other contract with the District.
2. The District may terminate this Contract if, in its discretion, any
judicial or administrative proceedings initiated by Applicant threaten
the District's authority to contract for delivery or use of the District's
water rights, or threaten the District's permits, water rights, or other
interests of the District.
B. Termination by Applicant:
1. Applicant may terminate this Contract in its entirety for any
reason by notifying the District in writing of the termination on or
before April 1. Notice by said date will prevent the Applicant's
liability for the next annual contract charge.
19. RECORDING OF MEMORANDUM: In lieu of recording this Water
Allotment Contract, a Memorandum of Water Allotment Contract will be recorded with
the Garfield County Clerk and Recorder's Office. The costs of recording the Memorandum
shall be paid by Applicant.
APPLICANT:
Sharon Botcher
Alfred Marcet -
2017-04-07 Contract No. 687.doc 7
Applicant's Address:
P.Q. Box 700
Carbondale, CO 81623 .
Telephone No.: (970) 928-9100
STATE OF ..ORADO ) SWISS CONFEDERATION
CANTON AND CITY OF BERN SS
) SS. EMBASSY OF THE UNITED
STATES OF AMERICA
CO TY OF
)
IsA.A
/
Subscribed and sworn to before me this ` 0 day of 1, 2017, by Sharon
Boucher and Alfred Marcel Hess.
WITNESS my hand and official seal.
My commission expires:
2017-0407 Contract No. 687.doc
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Water User
Sharon Boucher and Alfred Marcel Hess
Analysis Date
February 28, 2017
District Area:
A
Source Series:
4
Maximum Demand-
15 0.033
(GPM)
(CFS)
BASALT WATER CONSERVANCY DISTRICT
WATER REQUIREMENTS
(acre feel)
Month
January
February
March
April
May
Jurre
July
August
September
October
November
December
TOTALS -»
Total Demand
Consumptive Use
(1)
Domestic
in-house
0.067
0,060
0 067
0.064
0067
0.064
0.067
0.067
0.064
0.067
0.064
0.067
0,784
(2)
Hot Tub
Evap.
0.000
0.000
0.000
0.000
0.001
0.001
0.001
0.001
0.001
0 000
0 000
0 000
0 006
(3)
Lawn
isngation
0.000
0.000
0 000
0.009
0.055
0.069
0.065
0.040
0.036
0.012
0,000
0.000
0.286
(4) (5) (S)
Crop
1m4a-eon Livealock TOTAL
0.000
0.000
0.000
0-000
0000
0.000
0000
0.000
0 000
0 000
0 000
0 000
0.000
0.000
0.000
0000
0.000
0.000
0.800
0.000
0.000
0.000
0 000
0.000
0 000
0 000
0.067
0.060
0,067
0.074
0.122
0134
0.133
0.107
0.101
0.079
0.065
0.067
1-076
Assumptions
(7)
Domestic
In-house
0.010
0.009
0.010
0.010
0.010
0.010
0.010
0.010
0.010
0-010
0.010
0 010
0118
(s)
Hot Tub
Evap.
0.000
0.000
0.000
0.000
0.001
0.001
0.001
0.001
0.001
0 000
0.000
0-000
0 006
(9) (10) (11) •(12)
Lawn Crop
)rrigerian Irrigation Livestock TOTAL
0.000
0.000
0.000
0.008
0.044
0.055
0.052
0.032
0.029
0.010
0.000
0.000
0.229
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0 000
0.000
0 000
0 000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
0.000
(1)
NUMBER OF RESIDENCES
# persons/residence
# gattons1peraonlday
2
35
100
(5)
(7)
fr of tive4100 0 11 rgaisFday
0
16 CU for DemeslicrCamrnertial
15
(2
(3)
CammerciaUOlher Demand (at)
Hal Tub Evap.
Sq. Ft. of Lawn Irrigated
Lawn Application Rate (aUac)
0.000 Office
5,000
2.520
(9)
• (10)
% Lawn Irrig Efficiency
Consumption of Irrig. (lilac)
% Crop !nig. Efficiency
Consumption of 'nig. (ar/ae)
80
2.016
80
0.000
(4) Acres of Crop irrigated
Crop Application Rate (aUac)
0.00
0.000
(9-10)
Elevation (feel)
6450
112), (13) Total fnc(udes 5' Transit Less
10% (rem Green Mtn.
0.011
0.010
0.011
0.019
0.060
0.072
0.070
0.047
0.043
0.022
0.011
0.011
0.387
'(13)
win Dehyed,
0.033
0.033
0.032
9.032, -.
0.091..
0.031
QJ73i'
0.031
0.032
0,033
0.034
0,034
0.387
(14)
Source of
AualRepbaca
GNM
GNM
GNM
GNM
GNM
GNM
GNM
GNU
GNM
GNM
GAN
GNU
Area A-4
Well Type A - Permit No. 151097
Roaring Fork River
tri
ORDER GRANTING APPLICATION FOR ALLOTMENT CONTRACT
SHARON BOUCHER AND ALFRED MARCEL HESS
CONTRACT NO. 687
Application having been made by or on behalf of Sharon Boucher and Alfred Marcel
Hess and hearing on said Application having been duly held, it is hereby ordered that said
Application be granted and that the attached Water Allotment Contract for 0.033 cubic feet
of water per second from the District's direct flow rights and 0.4 acre feet per year of
storage/augmentation water owned or controlled by the District is hereby approved and
executed by and on behalf of the Basalt Water Conservancy District, for the beneficial use
of the water allotted in the attached Contract, upon the terms, conditions and manner of
payment as therein specified and subject to the following specific conditions:
1. The Applicant has acknowledged that the land to be benefited by the attached
Contract is described on Exhibit A attached hereto and incorporated herein by this
reference.
2. In the event of the division of the property served by this Contract into two or
more parcels owned by different persons, the Applicant shall establish a Homeowners
Association or other entity acceptable to the District for the ongoing payment of charges
due under the approved Contract following subdivision of the property. The Applicant
shall give notice to purchasers of all or any part of the subject property of the obligation of
this Contract, and shall record' such notice in the records of the Clerk and Recorder of
Garfield County, Colorado. Applicant and his successors and assigns shall comply with all
rules and regulations now existing or hereafter adopted by the District, including enforcing
payment of charges due under the approved Contract by present and future owners of all
or any part of the real property served under this Contract.
3. Any allotment of less than 1.0 acre foot of storage water in Paragraph 1 of the
attached Contract shall be deemed 1.0 acre foot for purposes of establishing the annual
water service charge for such water allotment.
4. Applicant has represented to the District that the proposed use of the land to
be benefited by the water allotted hereunder has been approved by the applicable
governmental authorities having jurisdiction over such land use and by executing the
attached water allotment contract warrants to the District that the lot or parcel to be
benefited hereunder is legally subdivided.
2017-09-07 Order to Contract No. 687.doc
- 1 -
5. Any well permits issued on the basis of this Allotment Contract shall be
applied for and issued in the name of the Applicant.
6. This Contract is conditioned upon and water may be delivered hereunder
only in conformity with a water rights plan of augmentation decreed by the Water Court of
Water Division No. 5. Any and all conditions imposed upon the release and diversion of
the water allotted hereunder in the decree of said Water Court shall be incorporated herein
as a condition of approval of this Contract. Granting of this Allotment Contract does not
constitute the District's representation that the Applicant will receive a well permit or water
rights decree for the land to be benefited hereby.
7. If Applicant intends to divert water through a well or wells, Applicant shall
provide the District a copy of Applicant's valid well permit for each such well before the
District is obligated to deliver water for the benefit of Applicant hereunder. Applicant
must comply with the well -spacing requirements set forth in C.R.S. § 37-90-137, as
amended, if applicable. Compliance with said statutory well -spacing criteria shall be an
express condition of the extension of service hereunder, and the District shall in no way be
liable for an Applicant's failure to comply.
Approved this 11 day of April, 2017.
Attest:
By:
Scott es! e,
Secretary to the Meeting
2017-04-07 Order to Contract No. 687.doc
BASALT WATER CONSERVANCY DISTRICT
By: KOark.
2
Don Boyeh(jPresident
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