HomeMy WebLinkAbout20062787.tiff PLANNING COMMISSIONERS' SIGN POSTING CERTIFICATE
THE LAST DAY TO POST THE SIGN IS FEBRUARY 20, 2006 THE SIGN SHALL BE POSTED
ADJACENT TO AND VISIBLE FROM A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY.
IN THE EVENT THE PROPERTY BEING CONSIDERED FOR A SPECIAL REVIEW IS NOT
ADJACENT TO A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY, THE DEPARTMENT
OF PLANNING SERVICES SHALL POST ONE SIGN IN THE MOST PROMINENT PLACE ON
THE PROPERTY AND POST A SECOND SIGN AT THE POINT AT WHICH THE DRIVEWAY
(ACCESS DRIVE) INTERSECTS A PUBLICALLY MAINTAINED ROAD RIGHT-OF-WAY.
I, CHRIS GATHMAN, HEREBY CERTIFY UNDER PENALTIES OF PERJURY THAT THE
SIGN WAS POSTED ON THE PROPERTY AT LEAST FIFTEEN DAYS BEFORE THE
PLANNING COMMISSIONERS HEARING FOR PZ-1094 IN THE A (AGRICULTURAL) ZONE
DISTRICT.
CHRIS GATHMAN
Name of Person Posting Sign
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Signature of Person Posting Sign
STATE OF COLORADO
)ss.
COUNTY OF WELD
The foregoing instrument was subscribed and sworn to me this 7tday of (�• ,y0n. , 200).
WITNESS my hand and official seal.
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BfT
otary Publ �: 494 f'
My Commission Expires: ID-(4-U?
EXHIBIT
6A
2006-2787
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' r :. L • I & 1 Wrro NOTICE W�CDc •r A PUBLIC HEARING CONCERNING •. ; r
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CASE NO. _ Dc
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r_ FOR MORE INFORMATION CALL
/ WELD COUNTY DEPARTMENT OF ;
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PLANNING SERVICES AT 1
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(970)353-6100 ext. 354 i'it ' hilt '0
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The New Von Gohren Lateral Ditch Company
2781 AA Street
Greeley, CO 80631
March 7, 2006
To Whom It May Concern:
My name is John Gerry and I am President of The New Von Gohren Lateral Ditch
Company. I am currently working with Ed Orr and his representatives on the relocation
of The New Von Gohren Lateral Ditch Company just south of Highway 392 to
accommodate a development proposed by Mr. Orr.
To date, negotiations for such relocation have been progressing and I am hopeful that
we can reach an agreement on said relocation that meets the requirements necessary
for our approval.
Sincerely,
hn Gerry
President
AUGMENTATION AND EASEMENT AGREEMENT
LOWER POUDRE AUGMENTATION COMPANY
This Augmentation and Easement Agreement ("Agreement") is dated December 2, 2005, and is
between the Lower Poudre Augmentation Company, 33040 Railroad Avenue, P.O. Box 104,
Lucerne, CO 80646 ("Company"),and Ed Orr 826 9''Street, Greeley,CO 80631 ("Landowner").
Recitals
WHEREAS, The New Cache La Poudre Irrigating Company owns and operates a canal system
known as the Greeley No. 2 Ditch in Weld County("Company Canal"); and
WHEREAS, the New Cache La Poudre Irrigating has made application in Case No. 2004CW025
District Court,Water Division No. 1 of the State of Colorado for approval of a plan for augmentation
("Augmentation Plan"); and
WHEREAS,the Company is to be assigned the rights and obligations of owning and operating the
Augmentation Plan; and
WHEREAS,the Landowner owns lands lying under the Company Canal in the W1/2 of the NE 1/4 of
Section 24,Township 6 North,Range 66 West of the 6m P.M. (the"Property")depicted on the map
in Exhibit A which is attached hereto and referenced herein; and
WHEREAS, on the Property is a site which is appropriate for the construction of a recharge pond
and related facilities to generate augmentation credits that accrue to the lower reaches of the Cache
La Poudre River suitable for use in the Augmentation Plan,which site and the proposed facilities are
depicted on the map attached and incorporated as Exhibit A, and are referred to as the"Recharge
Project;"and
WHEREAS,the Landowner wishes to construct the Recharge Project and the Company wishes
to supply water to the Recharge Project for the purpose of obtaining recharge credits for use in
the Augmentation Plan, and to do so pursuant to terms and conditions described in this
Agreement for the mutual benefit of Company and Landowner.
Agreement
NOW, THEREFORE, in consideration of the mutual promises and other consideration described
below,the sufficiency of which is hereby acknowledged,Company and Landowner agree as follows:
EXHIBIT
(DC-
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1. The recitals of facts set forth above are incorporated as part of this Agreement.
2. Delivery of Water. Under the terms and conditions of this Agreement,the Company agrees
that to the extent it has the legal right to deliver water through the Company Canal to a new
headgate and weir to be installed by Company. The headgate is to be located on the south
bank of the Company Canal(Headgate No. 56)in the Northeast '''A,Section 24,Township 6
North, Range 66 West, 6'" P.M. (the "Augmentation Headgate"). Landowner agrees that
after delivery of said water, Landowner shall place the water into the recharge pond
constructed as part of the Recharge Project and shall not thereafter divert or use the water for
any purpose.
3. Water Right Ownership. The Company shall own the entire water right used to supply water
to the Recharge Facility as contemplated in this Agreement,except as provided in paragraph
9 hereof Landowner shall have the right to receive a portion of the augmentation credits
allocated to him pursuant to the terms of this Agreement, but shall have no other legal
interest in the water or water right that will be used to supply water to the Recharge
Facilities, except as provided in paragraph 9 hereof.
4. Water Right Appropriation and Adjudication. Company shall have the right to run water to
which it is entitled from any source to the Recharge Project. The Company and/or the New
Cache La Poudre Irrigating Company intends to appropriate and adjudicate one or more
water rights or conditional water rights to be used to deliver water to the Recharge Project in
Case No. 2004CW025,and it or they are the sole applicant(s)in the Water Court case filed
to adjudicate said rights and Landowner has no interest in said in water right(s).
5. Allocation of Augmentation Credits. All augmentation credits resulting from water delivered
by the Company to Landowner for use in the Recharge Project will be allocated between
Company and the Landowner as follows:
a. All augmentation credits attributable to ditch loss in the Company Canal belong
solely to Company.
b. All net augmentation credits generated after water has been diverted from the
Company Canal into the Augmentation Headgate will be allocated 50% to
Company and 50% to Landowner. The determination of the amount of
augmentation credits to which the parties shall be entitled and be split 50/50 shall
be based upon the methodology decreed for making such determinations in Case
No.2004CW025,or any substitute water supply approved by the State Engineer
based upon the application in said case, or failing this, be determined of the
Division Engineer for Water Division No. 1.
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6. Recharge Project Development Costs. Except as described below,the cost of developing and
constructing the recharge ponds and all facilities necessary for the operation of the Recharge
Project shall be borne by the Landowner. The Landowner shall construct a recharge pond
with approximately twelve(12)surface acres as shown on Exhibit A,and shall develop and
construct the Recharge Project to the specifications of the Division Engineer and the
Company, if said specifications are agreeable to Landowner. If mutually agreeable
specifications cannot be agreed upon by the Landowner, the Company and the Division
Engineer,this Agreement and all obligations hereunder shall terminate. Further,Landowner
shall be responsible for maintaining the Recharge Project (and the costs associated
therewith), including dirt work, dikes, dams, pipelines, ditches, recharge pond(s) and all
associated structures. The Landowner shall be responsible for constructing and maintaining
all facilities beyond the weir at the Augmentation Headgate except those appurtenances
necessary for measuring water. In the event Landowner fails to maintain said facilities,the
Company shall have the right,but not the obligation,to dredge,maintain,repair and rebuild
all facilities associated with the Recharge Project and,in the event the Company elects to do
so, it shall do so at the sole cost and expense of the Company. Further, in the event that the
Company deems it necessary to maintain the facilities, Landowner hereby agrees that the
Company shall have an easement to come and go on the easement areas on the Property for
the purpose of maintaining the Recharge Facilities as described in Exhibit A attached hereto
and incorporated by reference herein.
7. Company Maintenance. The Company shall be responsible for the construction and
maintenance of a"de-silting" facility to be located at or near the Augmentation Headgate.
Landowner hereby grants to the Company an easement for the de-silting facility to allow the
Company to come and go on the Property for the purpose of constructing and maintaining the
de-silting facility, as described in Exhibit A attached hereto and incorporated by reference
herein. Further, all headgates, weirs, measuring devices and appurtenances necessary for
measuring water shall be paid by Company. The Company shall be responsible for the
construction and maintenance of all appurtenances necessary for measuring water and all
facilities"upstream"of the weir and shall be responsible for maintenance and removal of silt
from within the desilting facility.
8. Control of Water Diversions and Ditch Operations. The New Cache La Poudre Irrigating
Company and/or the Company shall retain exclusive control over when or whether diversions
of water are made from the river and/or when and where water is delivered from the
Company Canal into the Augmentation Headgate,except as provided in paragraph 9 hereof.
Landowner understands and agrees that neither the New Cache La Poudre Irrigating
Company nor the Company has an obligation to deliver water to the Augmentation Headgate
for delivery to the Recharge Project. Landowner understands and acknowledges that
Company's first responsibility in ditch maintenance and water delivery is to serve its
shareholders with water diverted under its senior water rights. The New Cache La Poudre
Irrigating Company and/or the Company shall retain control over the operation of the
Company Canal and all other ditch operations, which control shall include the right for
Company to use the Recharge Project facilities for emergency releases of water running
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within the Company Canal whenever Company determines it to be needed for that purpose
and whenever such use of the Recharge Project will not interfere with Landowner's use of
the recharge ponds to store water as set forth in paragraph 9 hereof.
9. Storage by Landowner. Landowner is developing a 9 lot subdivision near the Recharge
Project. These lots are depicted on the map attached and incorporated as Exhibit A.
Landowner shall be entitled to use the Recharge Project to store up to fifty(50)acre feet of
water in the recharge pond(s) at any one time for non-potable irrigation purposes and to
prevent the recharge pond(s) from becoming void of water subject to the following
restrictions:
a. Water for purposes other than recharge,including but not limited to non-potable
irrigation, shall be furnished by Landowner.
b. Any augmentation credits that may accrue from Landowner's water that is placed
into the Recharge Project shall be allocated as stated above in Paragraph 5.
c. If the Landowner's water is commingled with Company water in the Recharge
Project, Landowner agrees that his/its water shall, for administrative purposes,
suffer all evaporative losses.
d. The Company shall not be responsible for any costs associated with the water
used for purposes other than recharge, including but not limited to the non-
potable irrigation system.
e. Landowner agrees that he shall never line the recharge pond or otherwise do
anything that would have the effect of reducing the rate of seepage from the
Recharge Facilities so long as this Agreement is in effect.
10. First Right of Refusal. In the event Landowner receives a bona fide offer which Landowner
desires to accept, to rent or purchase the augmentation credits which are the property of
Landowner as stated in paragraph 5 above, then Landowner shall give Company written
notice of such bona fide offer. If the offer is for lease,Company shall have a period of seven
(7)days from written notice to elect to rent the augmentation credits from Landowner under
the same terms and conditions of the bona fide offer. If the offer is for purchase, Company
shall have a period of thirty (30) days from written notice to elect to purchase the
augmentation credits from Landowner under the same terms and conditions of the bona fide
offer. In the event the Company does not elect to exercise this right within the allotted time,
then this right shall expire and Landowner shall be free to transfer or lease the augmentation
credits as the case may be to a third party.
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11. The Parties Representations and Warranties. The parties make the following representations
and warranties:
a. The parties have full power and authority to enter into this Agreement.
b. Compliance with the terms of this Agreement by the parties will not violate any
provision of federal, state, or local law.
c. The parties will use reasonable efforts to maximize the augmentation credits
created by the Recharge Project and will endeavor to prevent the facility from
becoming void of water and dry provided the terms of this Agreement are
complied with, and in particular,the Recharge Facility is properly maintained.
d. Landowner acknowledges and accepts the inherent risk and danger of bodies of
water and water conveyance facilities existing on the property.
12. Term. This Agreement shall be perpetual in duration unless terminated pursuant to the terms
hereof or by mutual agreement of the parties hereto.
13. Default; Right to Cure. In the event that either party believes that the other is in default of
any obligation under this Agreement,the non-defaulting party shall give written notice of the
default to the defaulting party. If a notice of default is provided, the party accused of the
default shall either cure it or provide a written statement explaining why it is not in default.
If the alleged default is not cured or otherwise resolved within 30 days,the parties may resort
to their remedies. In addition to any other legal remedy Company may have,if Landowner is
in default under this Agreement and has not cured that default as provided in this paragraph,
Company may refuse to deliver water under this Agreement until such default is cured. In
addition to any legal remedy Landowner may have, if Company is in default under this
Agreement and has not cured that default as provided in this paragraph, Landowner may
refuse to allow use of the Recharge Project by Company under this Agreement until such
default is cured.
14.Notices. All notices pertaining to or provided for under this Agreement shall be in writing
and delivered to the parties personally by hand,or by first-class mail,postage prepaid at the
addresses of the parties set forth below. All notices delivered by hand shall be deemed given
when delivered, and all notices delivered by first-class mail shall be deemed given when
mailed. The parties may,by notice as provided above,designate a different address to which
notice should be given, but the initial addresses are as follows:
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r—
To Company: Lower Poudre Augmentation Company
P O Box 104
33040 Railroad Avenue
Lucerne, CO 80646
Telephone: 970-352-0222
To Landowner: Ed Orr
826 9th Street
Greeley, CO 80631
Telephone: 970-351-8777
15. Binding on Successors. This Agreement and all the terms and conditions herein shall be
binding upon the successors, legal representatives, heirs and assigns of the parties hereto,
including but not limited to any Homeowners' Association or the property owner(s)within
the boundaries of the subdivision identified in Exhibit A.
16. Entire Agreement;Modification;Waiver. This Agreement constitutes the entire agreement
between Company and Landowner pertaining to the subject matter described in it and
supersedes any and all prior contemporaneous agreements, representations, and
understandings. No supplement, modification, or amendment of this Agreement shall be
r-. binding unless executed in writing by both parties. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
The Company: Landowner:
By:/),7,.. By:
h�1Kegenberg, Pres. nt
Attest:
nton Brunner, Secretary
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•
STATE OF COLORADO }
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COUNTY OF WELD }
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ubCrf d and sworn to before me this //— day of January, 2006 by Mike Hungenberg,
``
tent 9f l'tpw Cache La Poudre Irrigating Company.
•
�', WITNESS my hand and official seal.
* x13o;mrrussion expires: 444,.:2 /j 2008
Notary Pu lic
STATE OF COLORADO }
}ss
'C ` OF WELD}
•..: ig,.
Subs }bed and sworn to before me this 6 day of January, 2006 by Ed On.
SS my hand and official seal.
hmission expires: p
Notary Public
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EXHIBIT A
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MEMORANDUM
wilge TO: Planning Commissioner
COLORADO DATE: March 6, 2006
FROM: Chris Gathman —Planner II L.
SUBJECT: Proposed revisions to PZ-1094 staff recommendation
Staff recommends that the following conditions be added as conditions of
approval (and subsequently renumber remaining conditions):
Item 1.B: The applicant shall submit an agreement with the Van Gorham Ditch
Company or provide written evidence that an adequate attempt has been made to
address their concerns. (Department of Planning Services)
Item 1.D (to replace existing condition 1.D): The applicant has indicated that
additional water for fire suppression shall be provided by a proposed well. The
applicant shall provide written evidence to the Department of Planning Services
regarding the proposed well (location, water supply needs)to the Department of
Planning Services to forward to the State of Colorado, Division of Water for their
review. Division of Water Resources comments regarding the review of the
proposed fire well shall be provided to the Department of Planning Services.
(State of Colorado, Division of Water Resources, Department of Planning
Services)
Remove Item 1.E— The applicants are proposing to pipe water from the Graham
Seepage and Van Gorham Ditches off of the property to the east of the retention
pond. Therefore a potential amendment to the augmentation plan would not be
necessary.
EXHIBIT
1 /D
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