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Home My WebLink About2.0 Ditch AgreementDITCH AGREEMENT THIS AGREEMENT, made and entered into this S91! day of January, 1979, by and between WESTBANK RANCH NO. 1, LTD., a Colo. Limited Partnership, acting by and through its managing partner WESTBANK DEVELOPMENT CO., INC., a Colo. Corp., P. 0. Box 987, Glenwood Springs, Colorado 81601(herein called "Westbank"), and JAMES L. ROSE, 0180 County Road 109, Glenwood Springs, Colorado 81601(herein called "Rose"), WITNESSETH: WHEREAS, the parties hereto, together with Sievers Ranch & Development Co., a Colo. Corp., own certain ditch and water rights in Wter District No. 38 described as follows: a. The Robertson Ditch No. 47 with Priority Nos. 52 for 4 cfs as of Feb. 11, 1883, 112 for 3.5 cfs as of Apr. 1, 1885, and 595 for 9.0 cfs as of Apr. 2, 1950, for a total of 16.5 cfs, owned as follows: 1. Westbank Ranch No: 1, Ltd., a limited partnership, 3.0 cfs under Priority Nos. 52 and 112; and 7 cfs under Priority No. 595, for a total of 10 cfs. 2. James L. Rose 3.0 cfs under Priority Nos. 52 and 112; and 2.0 cfs under Priority No. 595, for a total of 5 cfs. 3. Sievers Ranch & Development Co., a Colo. Corp., 1.5 cfs under Priority Nos. 52 and 112. b. James L. Rose owns the O'Neill Spring and Pipeline Ditch No. 316, Priority No. 474 as of June 30, 1945 for 4.6 cfs and a carriage right in the Robs_,,,.. Ditch to carry such water. WHEREAS, the headgate of the Robertson Ditch No. 47 is located at a point on the West bank of the Roaring Fork River, whence the SE corner of Sec. 12, T. 7 S., R. 89 W., 6th P.M., bears N. 27°56' W. 2788.14 ft.; and the O'Neill Spring and Pipeline Ditch No. 316 has two headgates, No. 1 is located at a point whence the North Quarter Corner of Sec. 12, T. 7 S., R. 89 W., 6th P.M. bears N. 19°05' W. 3669.5 ft.; and Headgate No. 2 is located at a point on the East end of a diversion dam whence the North Quarter Corner of Sec. 12, T. 7 S., R. 89 W., 6th P.M. bears N. 21°08' W. 3715.5 ft.; and WHEREAS, by letter dated Jan. 20, 1978 Westbank and Rose entered into a letter agreement for the cleaning, repair and maintenance of the said Robertson Ditch cutin; 1978 and are now desirous of entering into an agreement for the continuing clearing, repair and maintenance of said ditch; NOW, THEREFORE, for amain consideration of the covenants contained herein, the parties agree as follows: 1. We shall jointly do, or cause to be done, all things reasonably necessary to Exhibit Q maintain, clean and repair ' Robertson Ditch from the hc'a.te thereof to Rose's last takeout point and shall share in the cost thereof 1/3rd by Rose and 2/3rds by Wcsthank. 2. To provide funds for the foregoing purposes in 1978, the parties opened a joint bank account at the Bank of Glenwood in Glenwood Springs, Colorado, Westbank depositing thereto $2,000.00 and Rose $1,000.00. The balance of said account is now approximately $1,100.00 to $1,200.00. On or before the 1st day of March, 1979, and on the 1st day of March of each year thereafter, each of the parties shall deposit to said account, or to such other account as they may mutually agree on, funds sufficient to bring the balance of such account to $3,000.00, each party contributing thereto in the proportions aforesaid. The parties recai,nize additional sur may be required from time to time to properly maintain, clean and repair the ditch and :e agree to contribute such additional funds in the foregoing proportions not to exceed 20% in excess of our contributions during the prior calendar year. 1 3. No tater shall be turned into the ditch in any year until it shall have been cleaned and repaired to the satisfaction of both parties. If we cannot agree on clean- ing, repairing and turning water into the ditch, then Leo or Joe Jammaron, or any third party mutually agreeable to us, shall inspect the ditch and advise if the ditch is sufficiently cleaned sand repaired for water to be turned into it. We agree to act upon and to abide the decision of this third party as to cleaning, repairing and turning water into the ditch, such Baird party's charges t:, be borne by us in the same proportions as aforesaid. 4. As soon as weather and ground conditions permit in 1979, we shall install, or cause to be installed, at the headgate of the Robertson Ditch a l'arshall measuring. or other appropriate measuring device, under supervision of the Water Commissioner. 5. We shall promptly develop a schedule and plan for the installation of three divider boxes or other appropriate ditch control devices and undertake such installation commencing in 1979 as funds and time permit. lipon such installation, neither Darty shall block the ditch in any manner or interfere with the free flow of water in order to obtain or attempt to obtain the water to which he is entitled. 6. We agree to explore the feasibility of hiring a ditch walker, who will he a third party mutually agreeable to both of us, responsible for cleaning and maintaining the ditch throughout the irrigation season, or advising us as to necessary or recom ended maintenance programs or improvements; to the ditch, and for undertaking such further matters as are appropriate or necessary in order to maximize the smooth flow of the water through the ditch and its delivery to our respective takeout points. 7. Sufficient monies will be spent from our joint bank account to undertake a thorough weed and moss control program in the ditch, employing such chemicals as are necessary for such purpose. • 8. Sievers Ranch & Development Co. has heretofore failed to cooperate or respond our efforts to maintain the ditch, and we do not intend to releaseor discharge it from any of its responsibilities, obligations or expenses with regard to the ditch; but on the contrary, we agree to attempt to contact said company and obtain its cooperation, either voluntarily or through appropriate Legal action, so it contributes it fair share of the expenses of cleaning and maintaining the ditch as provided by law. . 9.. Rose may use the Robertson Ditch as a carrier ditch for the O'Neill Spring and Pipeline No. 316, Priority No. 474 to which is adjudicated 4.6 cfs, only when the Robert- son Ditch is physically able to carry such additional am,unt of water in, over and above the water rights adjudicated to Robertson Ditch. To the extent that the Robertson Ditch is used for this purpose, Rose shall pay all expenses occasioned thereby and shall contribute whatever sums are necessary or appropriate as a result of this additional burden on the Robertson Ditch. 10. We agree to have due reard for the needs and rights of each other concerning, our respective :water rights in and to the ditch and the application of such water to the beneficial uses to which we are legally entitled. 11. Upon execution of this agreement, and ratification and approval hereof by West - bank Ranch Homeowner's Association, a Colo. Non -Profit corporation, Rose, by his attorney of record, shall withdraw with prejudice his Motion for Re -Consideration and/or Correct io of Referee's Ruling as confirmed and approved by the Court April 26, 1976, in Case No. W-2516 in the District Court in and for Water Division No. 5, State of Colorado, and vacate the hearing in said cause thereon now set for January 9, 1979 at 1:30 P.". 12. This agreement shall be binding upon and inure to the benefit of the narties hereto, their successors and assigns. This agreement shall continue in full force and effect unless modified or terminated by mutual agreement of the parties; and this agree- ment greement shall be deemed automatically terminated at such time as either parry permanently ceases to use any water through the Robertson Ditch. IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first -above written. • '- ATTEST: WESTBANK RANCH NO. 1, LTD., a Colo. Limited Partnership By:.WESTBANK DEVELOPMENT CO., INC. a Colo. Ccf ranaging Partner Secretary;' / lin Huebinger, Jr. Ratified and approved this ATTEST: r�. Armor' Ste ar , Secretary aures . Rose day of January, 1979. WESTBANK RANCH HOMEOWNER'S ASSOC :T IN, a Colo. N,rofit 4 By Dunn, 'reside' STATE OF COLORADO ) ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me this day of January, 1979 by JOHN HUEBINGER, JR. and Dolores Huebinger as Secretary of WESTBANK RANCH NO. 1, LTD., a Colo. Limited Partnership by WESTBANK DEVELOPMENT CO., INC., a Colo. Corp., Managing Partner. My,notarial commission expires on August 12, 1981 Witness my hand and official seal. STATE OF COLORADO ) COUNTY OF GARFIELD ) ss. -Notary Public The foregoing instrument was acknowledged before me thisc9' day of January, 1979 by JAMES L. ROSE. My notarial commission expires on - �2 /e Witness my hand and official seal. STATE OF COLORADO ) ss. COUNTY OF GARFIELD ) Notary Public The foregoing instrument was acknowledged before me this day of January, 1979 by CECIL DUNN, President and HALL STEWART, as Secretary of WESTBANK RANCH HOMEOWNER'S ASSOCIATION, a Colo. Non -Profit Corp. My notarial commission expires on Witness my hand and official seal. • -4 - Notary Public