This Agreement Regarding Common Irrigation Services (" Agreement") is entered into this 31st day of October, 2007, between Orchard City Irrigation District, an irrigation district organized under the laws of the State of Colorado, ("OCID"), and Butte Ditch Company, a Colorado mutual ditch company ("Butte").
Recitals
- OCID is an irrigation district located generally with the Town of Orchard City, Colorado, with the responsibility of delivering irrigation water to its members owning land in the district.
- Butte is a mutual ditch company organized under the laws of the State of Colorado for the purpose of delivering water to its shareholders.
- OCID delivers water to its members through a series of irrigation ditch systems including, among others, the Butte Ditch, the Stell Enlargement, the Fogg Ditch, the Circle Ditch and the Transfer Ditch.
- OCID and Butte each currently hire their own ditch riders to maintain a portion of the distribution system relied upon by OCID to deliver water, take orders for water and tum water to their respective members.
- The large majority of Butte shareholders are entitled to receive OCID water, and the parties desire to efficiently maintain their ditches and deliver water, and combine the manpower resources of the two parties to avoid duplication.
Now, therefore, in consideration of the Recitals above, and the mutual promises set forth below, the parties agree as follows:
- Commencing as of the date set forth in paragraph 7., OCID shall provide I Irrigation Services to Butte for the benefit of Butte's shareholders. All services provided by OCID under this Agreement shall be provided to Butte shareholders on the same basis as provided by OCID to other OCID members and/or shareholders of the Fogg Ditch Company.
- For the purposes of the Agreement, "Irrigation Services" shall consist of the following: Cleaning and maintaining the Butte distribution system from the Butte Ditch diversion structure on Surface Creek to the headgates at which each Butte shareholder receives his or her water from the Butte Ditch; taking water orders from Butte shareholders for the water that they are entitled to by their ownership of shares in Butte; turning water for Butte shareholders at Butte Ditch headgates; keeping records of the volume of water ordered by Butte shareholders and the amount of water available for Butte shareholders during the remainder of the irrigation season; and mailing notices of all annual meetings of Butte upon receipt of notices and shareholder mailing information from Butte. Irrigation Services shall not include, and OCID shall not be responsible for, the maintenance of any laterals or other ditches located below the headgate for each such lateral or ditch at the Butte Ditch or the Stell Enlargement.
- In consideration of the Irrigation Services provided hereunder, beginning in 2008, OCID will bill Butte shareholders a fee based on the irrigated acreage of each shareholder by first determining the yearly operating budget for OCID for all of its work, including, but not limited to, that portion of the budget dedicated to providing the services set forth in this Agreement. Upon establishment of the annual budget, OCID will determine the total number of acres to which it delivers water, including those acres served by the Butte ditch that are not located within OCID, and then determine the projected cost for each irrigated acre served by OCID. OCID will invoice directly each Butte shareholder his or her bill for each irrigation year.
- A small number of Butte Ditch shareholders are not located within OCID nor served by OCID water. However, those shareholders will be subject to this Agreement on the same level as Butte shareholders located within OCID. For purposes of billing for Irrigation Services, each· shareholder outside of OCID will be treated as though such shareholder was located within OCID with respect to calculation of irrigated acreage.
- In the event that any Butte shareholder fails to timely pay the invoices billed by OCID as authorized by this Agreement, Butte hereby assigns to OCID Butte, s rights of collection, including the right to commence legal proceedings against any Butte shareholder who fails to pay such invoice, and, if necessary, to cease all further delivery of water to that shareholder, in addition to any remedies that OCID and Butte may have with respect to such non-payment fi. OCID shall maintain workers' compensation insurance on all persons performing services under this Agreement to the extent required by applicable law or regulation.
- OCID shall maintain liability insurance, at least equal to the current existing coverage, if available, providing bodily injury and property damage coverage for all operations by or on behalf of OCID, including, but not limited to, all work under this Agreement, in such amounts as are reasonable and customary for an irrigation district in the State of Colorado. If permitted under the terms of such liability insurance policy acquired by OCID, OCID shall make reasonable efforts to name Butte as an additional insured on any such policy, which, if Butte is named as an additional insured, shall contain a provision preventing cancellation without thirty days prior written notice to Butte, if agreeable to the company providing such insurance. OCID hereby agrees to indemnify, defend and hold Butte harmless from and against any and all claims, suits, actions, judgments, damages, losses, costs and expenses (including, without limitation, reasonable attorneys' fees) arising out of or relating to OCID's performance of Irrigation Services under this Agreement.
- The initial terms of this Agreement shall be from November 1, 2007, to and including December 31, 2008. This Agreement shall automatically renew for annual terms thereafter unless either party give notice of termination to the other party not less than ninety (90) days prior to the end of the current annual term.
- If any provision of this Agreement is declared unenforceable or invalid for any reason, such declaration shall have no effect on the other provisions of this Agreement. If such provision is declared unenforceable or invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.
- This Agreement contains the entire agreement of the parties with respect to the matters provided for herein and supersedes all other prior agreement, whether oral or written, and all contemporary oral agreements and negotiations with respect to such matters.
- Any notice required or permitted hereunder shall be deemed sufficiently given upon personal delivery or upon mailing, postage prepaid, United States mail, certified mail return receipt requested, to the parties at the addresses as set forth below:
OCID: Attention: President
P.O. Box 402
Cory, Colorado 81414
Butte: Attention: President
11488 2100 Rd
Austin, CO 81410
Dated the day and year first set forth above.
Orchard City Irrigation District
A Colorado Irrigation District
Harmon L. Lowman, III, President
Butte Ditch Company
A Colorado Mutual Ditch Company
Andy Wick, President