Ordinance No. 349 - RetiredORDINANCE NO. 349
AN ORDINANCE OF THE SOUTH TAHOE PUBLIC
UTILITY DISTRICT AUTHORIZING EXECUTION
OF AGREEMENT FOR THE SALE OF REAL
PROPERTY BY AND BETWEEN F. HEISE LAND
AND LIVESTOCK COMPANY, A NEVADA CORP.,
AND THE SOUTH TAHOE PUBLIC UTILITY
DISTRICT
WHEREAS, there has been presented to the Board of
Directors of South Tahoe Public Utility District, South
Lake Tahoe, E1 Dorado County, California, three (3) originals
of an
AGREEMENT FOR THE SALE OF REAL PROPERTY BY AND
BETWEEN F. HEISE LAND AND LIVESTOCK COMPANY, A
NEVADA CORPORATION, AND THE SOUTH TAHOE PUBLIC
UTILITY DISTRICT
executed by F. HEISE LAND AND LIVESTOCK COMPANY which agree-
ment provides for District purchase of real property, water
rights, and interests in land in Alpine County, California,
necessary for District disposal of treated sewage effluent.
NOW, THEREFORE, BE IT ENACTED by the BOARD OF DIRECTORS
of the SOUTH TAHOE PUBLIC UTILITY DISTRICT, SOUTH LAKE TAHOE,
EL DORADO COUNTY, CALIFORNIA, as follows:
(1)
The President of said Board of Directors
is hereby authorized to execute three (3)
originals of said AGREEMENT FOR THE SALE
OF REAL PROPERTY BY AND BETWEEN F. HEISE
LAND AND LIVESTOCK COMPANY, A NEVADA
CORPORATION, AND THE SOUTH TAHOE PUBLIC
UTILITY DISTRICT on behalf of South Tahoe
Public Utility District.
(2)
The Clerk is hereby directed to attest
to said President's signatures and
affix the corporate seal of said District
to each original AGREEMENT.
The Clerk is further directed to return
one fully executed copy of said AGREEMENT
to F. HEISE LAND AND LIVESTOCK COMPANY;
one fully executed copy to the ESCROW
OFFICER, INTER-COUNTY TITLE COMPANY,
PLACERVILLE, CALIFORNIA, as mentioned in
said AGREEMENT; and return one (1) original
for the District public records and files.
ORDINANCE NO. 349
PASSED AND ADOPTED by the Board of Directors of the SOUTH TAHOE
PUBLIC UTILITY DISTRICT at its duly held adjourned regular meeting
on the 10th day of MAY 1983, by the following vote:
AYES:
Directors Jones, Olson, Lowe, Madden and Wynn
NOES: None
ABSENT: None
ATTEST:
J~'e~ R. Jones, ~r~sident~
H TAHOE PUB~I~ UTILITY
DISTRICT
MA~y D. ~brOs~e, Clerk of Board and
ex officio Secretary of the Board
of Directors thereof, SOUTH TAHOE
PUBLIC UTILITY DISTRICT
I hereby certify that the foregoing is a full, true and correct
copy of ORDINANCE NO. 349, adopted by the Board of Directors of
THE SOUTH TAHOE PUBLIC UTILITY DISTRICT, in a duly held adjourned
regular meeting on the 10th day of MAY 1983.
Mar~y D,/~b~ose~ Clerk of Board
SOUTH TAHOE PUBLIC UTILITY DISTRICT
AGREEMENT FOR THE SALE OF REAL PROPERTY
BY AND BETWEEN
F. HEISE LAND & LIVESTOCK COMPANY,
a Nevada corporation
and
SOUTH TAHOE PUBLIC UTILITY DISTRICT
May 10, 1983
M~nden, Nevada
TABLE OF CONTENTS
Paragraph
No.
3.1
3.2
3.3
3.4
4.1
4.2
Be
5.1
5.1 .1
5.1 .2
5.2
5.2.1
5.2.2
5.2.3
5.3
5.3 .l
5.3.2
5.3.3
5.3.4
5.3.5
5.3.6
5.4
5.5
5.6
5.7
5.7.1
5.7.2
5.7.3
5.8
5.8.1
5.8.2
5.8.3
5.9
e
6.1
6.1 .1
6.1 .2
6.1 .3
6.1 .4
6.1 .5
6 .! .6
6.2
6.3
Introduction .....................
Heise Real Property ..................
Heise Clay Material ..................
Payments to Heise by District .............
Clay Material Price ................
Temporary Easement Use Fee .............
Property Purchase Price ..............
Cost Reimbursement .................
Restrictions Upon Title ................
Parcel Numbers I - 5 ................
Permanent Easments .................
Fresh Water Provisions ................
Petitions .....................
Legal Costs ...................
Adjustment ..................
District Diverted Water ..............
Schwake Waters .................
Harvey Waters ..................
Dressler Mud Lake Waters ............
Heise Indian Creek Reservoir Use ..........
Heise Storage Capacity .............
Evaporative Loss Reserve ...........
No Spill Safety Reserve ............
Adjustment to Minimum Pool ...........
Flushing Flow .................
Storage Right ..................
Upper Dressler Ditch ................
Indian Creek Flood Water ..............
Diversion of Fresh Water Pipeline Discharge ....
Control of Flow thru Indian Creek Reservoir ....
Measurement, Records ..............
Delivery to Heise ................
Safety Releases .................
Evaporation Loss of Indian Creek Reservoir .....
District Primary Responsibility .........
Heise Secondary Responsibility .........
Dry Year Conveyance Loss Exception .......
Future Adjustment .................
Wastewater Effluent Provisions ............
Heise Delivery Option ...............
Term of Option ................
Notification .................
Volume of Delivery ...............
Delivery Points & Volume ............
Reclaimed Water Discharge Requirement ......
Reclaimed Water Discharge Lands .........
Heise Evaporation Replacement Right ........
District Delivery Option ..............
Page
Page
1
6
6
7
7
7
7
7
7
7
8
8
8
8
9
9
9
9
10
10
10
10
10
10
10
11
11
11
11
11
11
11
11
12
12
12
12
12
TABLE OF CONTENTS (Cont 'd)
Paragraph
No.
6.3.1
6.3.2
6.3.3
6.3.4
6.3.5
6.3.6
6.3.7
6.4
6.4.1
6.4.2
6.4.3
6.4.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
8.1
8.1 .1
8.1 .2
8.1 .3
8.1 .4
8.2
8.2.1
8.2.2
8.2.3
8.2.4
8.3
8.4
8.5
8.6
8.6.1
8.6.2
8.6.3
8.7
8.8
8.8.1
8.8.2
8.8.3
8.9
e
9.1
9.1 .1
9.1 .2
9.1 .3
Application Lands ................
Term of Option .................
Term of Delivery ................
Reclaimed Water Application Method .......
Volume Delivered ................
Quality & Discharge Requirements ........
Delivery Pipeline Easement ...........
Fire Protection ..................
Alpine Village Connection ............
Able Connection .................
Cost of Pipline .................
F]ow Reduction for Fire .............
Reclaimed Water Qua]ity ..............
Hold Harm]ess ...................
Non-Performance by Heise. ~ ~d ...........
Covenent Running with the a ...........
Regulations, Laws .................
Protection of Lands ................
Uncontro]]ed Circumstances .............
Schwake Tai]water & Drainage Waters ..........
Construction, Maintenance and/or Operation ......
Mi llich Flood Channel Easement ...........
Channel Construction ..............
Diversion Structures ..............
biaintenance ...................
Operations ...................
MJ]ltch Ditch & Snowshoe Thompson No. ] Ditches . .
Channel Abandoned ................
Diversion Structures ..............
Maintenance ...................
Operations 'D~t'h~H~ ; ' ~i; {i~ ~ .......
Upper Dress]er c r ey e e .......
Road Easement ...................
Temporary Construction Road Easement ........
Heise Pipeline ...................
Pipeline Construction ..............
Maintenance ...................
Operation ....................
District Reclaimed Water Delivery Option ......
Fencing ...... . ...............
;drport Road .................'
Temporary Clay Easement .............
Diamond Valley Dam Parcel ............
Construction Period ................
Restrictions Relative to Temporary Easements .....
Temporary Clay Easement ..............
Measurement. . . . . . - - · · · - · - · ' ' · '
Top Soil ....................
Quality of Fill Material ............
Page
13
13
13
13
13
13
13
13
13
14
14
14
14
14
14
15
15
15
15
15
15
15
15
16
16
16
16
16
16
16
16
16
16
17
17
17
17
17
18
18
18
18
18
18
18
18
19
19
19
Page
TABLE OF CONTENTS (Cont'd)
Paragraph
No.
9 .! .4
9.1 .5
9.1 .6
9.1 .7
9.1 .8
9.2
9.3
10.
10.1
10.2
10.3
10.4
] 0.4.1
10.4.2
10.4.3
10.4.4
11.
12.
12.1
12.1 .1
12.1 .2
12.2
12.2.1
12.2.2
13.
13.1
13.1 .1
13.1 .2
13.1 .3
13.1 .4
13.1 .5
13.1 .6
13.2
14.
14.1
14.2
14.3
15.
15.1
15.2
15.2.1
15.3
15.4
15.5
15.6
Removal of Clay Material ............
Fill Material Returned to Heise .........
Elevations and Grades ..............
Unforeseen Circumstances ............
Restoration of Easement .............
Temporary Construction Road Easement ........
Term of Use ....................
Purchase Price Negotiations ..............
Heise Offer ....................
District Offer ...................
Price Negotiations .................
Eminent Domain Determination of Purchase Price. · .
Procedural Delays ................
L]tigation Expenses ...............
Possession Prior to Judgment ..........
Deposit & Withdrawal of Probable Compensation. ·
Heise Grazing Rights .................
Plans & Surveys ....................
Plans .......................
Construction on Permanent Easements .......
Conveyance, Diversion & Distribution Structures.
Surveys ......................
Boundary Surveys ................
Farm Plan & Clay Removal Plan ..........
Approval Conditions ..................
District Conditions ................
Alpine County Contract Amendment ........
District Ordinance ...............
Environmental Impact Report ...........
Lahontan General Plan ..............
Archeological Investigation ...........
Grant Offer ...................
Joint Conditions ..................
Protection of Environment ...............
Review of Environmental Impact Report .......
Reservation of Claims ...............
Monitoring of Diamond Valley Lands .........
Escrow Provisions ...................
Deposits ......................
Prorations/Close of Escrow .............
Extension of Close of Escrow ..........
Possession ...... . - - · · · · · · ' ' ' ' ' '
Escrow Costs ....................
Title Policy ....................
Condemnation Action ................
Page
19
19
19
19
19
20
20
20
20
20
20
20
21
21
21
21
21
21
21
21
22
22
22
22
22
22
22
22
22
22
22
22
23
23
23
23
23
23
23
24
24
24
24
24
24
Paragraph
No.
16.
17.
18.
19.
20.
Ex. "A"
Ex. "B"
TABLE OF CONTENTS (Cont 'd)
Page
Development of BLM Lands ............... 24
Time of the Essence .................. 24
Governing Law ..................... 25
Notices ........................ 25
Legal Fees ...................... 25
Signatures ...................... 25
Maps ......................... A-I
Regulating Storage Capacity .............. B-1
Page iv ~
AGREEMENT FOR THE SALE OF REAL PROPERTY
THIS AGREEMENT for the sale of real property is entered into this 10th
day of May, 1983, by and between F. Heise Land & Livestock Company and South
Tahoe Public Utility Distict. For the consideration hereinafter set forth the
parties hereto agree as follows:
INTRODUCTION
A. DISTRICT. South Tahoe Public Utility D~strJct ("Distr~ct",
hereinafter) is a public utility dJstr~ct formed under and ex~sting pursuant to
the Public Utility Distict Act, D~v~sIon 7 (commencing w~th Section 15501) of
the California Public Util~t~es Code. District and District's office are
located in E1 Dorado County, California.
B. HEISE. F. He~se Land & Livestock Co. ("Heise", hereinafter) Js
a Nevada corporation which owns real property and property rights within Alpine
County, California which the District wishes to acquire. HeSse's office Js
located tn Douglas County, Nevada.
C. DISTRICT AUTHORITY. Distr~ct has the authority, pusuant to the
California Public Utilities Code, to take by grant, purchase, gift, devise, or
lease, or otherwise acquire, hold and enjoy, and lease or dispose of, rea] and
personal property of every kind within or w~thout the District, when in the
judgment of the Board of Directors of the District it is for the best interest
of the D~strict to do so.
D. PRESENT DISTRICT OPERATIONS. District ~s presently delivering
tertiary treated effluent from its sewage water treatment plant ~n El Dorado
County through a 27-mile pipeline to Indian Creek Reservoir in Alpine County.
The tertiary treated effluent is ~nitial]y stored in Indian Creek Reservoir for
fish and w~ldlJfe and recreation purposes, and then re]eased for irrigation use.
E. PROPOSED DISTRICT OPERATIONS. The D~strict proposes to (1)
change the level of treatment of its treated wastewater, from tertiary treatment
(removing nitrogen and phosphorus constituents) to filtered secondary treatment
(not removing much of the nitrogen and phosphorus constituents) ("Reclaimed
Water", hereinafter), (2) change 'the operation of its Indian Creek Reservoir
from a treated wastewater to a freshwater reservoir, (3) modify irrigation
application of tertiary treated effluent to the areas to be irrigated w~th ~ts
Reclaimed Water, and (4) construct a new reservoir (the "Harvey Reservoir",
hereinafter) to st-ore and regulate the Reclaimed Water (collectively,
"District's Project", hereinafter). The purpose the District's Project is to
provide a more cost effective level of sewage treatment, to maintain a
recreational minimum pool at Indian Creek Reservoir including offset of
evaporative and seepage losses ~n Indian Creek Reservoir, and to provide
nitrogen and phosphorus in Reclaimed Water for irrigation which will improve
agricultural crop production.
AGREEMENT
1. HEISE REAL PROPERTY. He~se w~ll convey to the D~strict the
following described real property, and property rights ("Heise Property",
hereinafter) which are located in the County of Alpine, State of California, the
boundaries thereof to be specifically described and the actual acreage adjusted
in accordance with a survey to be prepared as set forth in paragraph 12.2.1
Pagel ~'/~
~else-p]strlcc ^greemenL - may ~o, ~ voa .....................................
hereof,
Escrow:
which ~s to be approved by the parties hereto prior to the Close of
interest
of Lots
inclusive
M.D.B.&M.,
w~th all
and
Parcel No. 1 ("Harvey Place Parcel"). An undivided 50%
~n the West one-half of Lots 4, 10, 11 and 14 of Section 4; all
12 and 13 of Section 4; and the East one-half of Lots 3 thru 6
of Section 5, all ~n Township 10 North, Range 20 East,
which parcel consists of approximately 480_+ acres; together
water r~ghts and water reservoir rights appurtenant thereto;
Parcel No. lA ("Stevens Lake Parcel"). An undivided 50%
~nterest in and to the ]and which may be covered by the water impounded
by the dam constructed pursuant to that certain Notice of Water Location
and Reservoir Site recorded September 23, 1898 in Book B of Water R~ghts
page 43, Alpine County Records; such parcel being approximately 20 ~
acres in size; and
Parcel No. 2 ("Diamond Valley Dam Parcel"). That portion of
the South one-half of the Southeast one-quarter of Section 36, Township
11 North, Range 19 East, M.D.B.&M., lying south of a line commencing at
a point on the western boundary of said quarter section approximately
760 feet north of the southwest corner of said quarter section, and
continuing southeasterly approximately 500 feet to a point approximately
300 feet north of the southern boundary of sa~d quarter section, thence
northeasterly approximately 500 feet to a point approximately 490 feet
north of the southern boundary of said quarter section, thence
approximately 600 feet northeasterly of a point approximately 610 feet
north of the southern boundary of sa~d quarter section, thence
approximately 300 feet southeasterly to a point approximately 510 feet
north of the southern boundary of said quarter section, thence 260 feet
southeasterly to a point approximately 330 feet north of the southern
boundary of said quarter section, thence approximately 610 feet easterly
to a point 240 feet north of the south boundary of said quarter section,
thence southeasterly approximately 320 feet to the point of intersection
with the eastern boundary of sald quarter section which point is
approximately 300 feet north of the Southwest corner of said quarter
section; said l~ne then continuing easterly across the South one-half of
the Southwest one-quarter of Section 31, Townshlp 11 North, Range 20
East, M.D.B.& M., approximately 430 feet, thence southeasterly
approximately 550 feet to a polnt approximately 270 feet north of the
southern boundary of said quarter section, thence northeasterly
approximately 670 feet to a point approximately 415 feet north of the
southern boundary of sa~d quarter section, thence southeasterly to the
centerline of Indian Creek (approximately 440 feet), thence easterly to
a point 60 feet west of the center]ine of Diamond Ditch (approximately
165 feet), and thence Northeasterly parallel to the centerline of
Diamond Ditch to the eastern boundary of said quarter section; the
parcel thus described consists of approximately 42_+ acres; the actual
location of the northern boundary of this parcel will be adjusted by
agreement of the parties so as to min~mumize the District's interference
with the agricultural operations of HeJse; and
Parcel No. 3 ("Diamond Valley Scossa Parcel"). That port~on of
the North one-half of the Southeast one-quarter of Section 31, Township
11 North, Range 20 East, M.D.B.&M., which is southerly of a l~ne which
Page 2 ~P '~
~s 60 feet northerly of the centerlJne of the Diamond Ditch, which
parcel consists of approximately 11 + acres; and
Parcel No. 4 ("Diamond Valley SE Parcel"). That portion of the
Northwest one-quarter of Section 32, Township 1! North, Range 20 East,
M.D.B.&M., which ~s southerly of the centerlJne of the Diamond Valley
Road, which parcel consists of approximately 34 + acres; and
Parcel No. 5 ("Diamond Valley NE Parcel"). That portion of the
Northwest one-quarter of Section 32, Township 1! North, Range 20 East,
M.D.B.&M., which ~s Northerly of the centerl~ne of the Diamond Valley
Road and Easterly of a l~ne which ~s 60 feet westerly of the centerline
of the Diamond D~tch, which parcel consists of approximately 41 ~ acres;
and
Easement No. 1 ("Road Easement").
vehicle and
Valley Dam
repair and
facilities;
20 feet in
Section 31,
A non-exclusive easement for
equipment access from Diamond Valley road to the Diamond
Parcel and Harvey Place Parcel solely for the maintenance,
service of the District's Reclaimed Water and flood control
such easement to be approximately 4,000 + feet in length and
w~dth, and to commence at a point in the East one-half of
Township 11 North, Range 20 East, M.D.B.&M. which is along
the center]ine of Diamond Valley Road, and which is approximately 600
feet west of the western end of the bridge conveying Diamond Valley Road
across the channel of Indian Creek; thence southerly parallel with the
eastern boundary of such half section a distance of 900 + feet to a
point no more then 15 feet northerly of the eastern edge of the h~gh
water mark created by Indian Creek, thence southwesterly approximately
parallel to the eastern edge of the h~gh water mark created by Indian
Creek to intersect the northern boundary of the Diamond Valley Dam
Parcel; such easement parcel being now estimated to be approximately 1.9
+ acres; this easement is intended to be contained within the area of
the Temporary Construction Road Easement; and
Easement No. 2 ("Temporary Clay Easement"). A temporary
easement, for the term provided in paragraph 9.3 hereof, to enter onto,
remove and/or replace soils, and convey such soils across the easement
lands to ]ands to be acquired by the District in connection with the
construction of the District's Project, such easement being described as
the Northeast one-quarter of Section 31, the Southwest one-quarter of
the Southeast one-quarter of Section 30, and the Northwest one-quarter
of Section 32, Township 11 North, Range 20 East, M.D.B.&M., which are
northerly of Diamond Valley Road, not ~nc]uding Parcel No. 5 (Diamond
Valley NE Parcel); such easement parcel consisting of approximately 140
+ acres (see Exhibit "A", hereof); and
Easement No. 3 ("Temporary Construction Road Easement"). A
temporary, exclusive easement to enter onto, construct, and utilize a
road for equipment and vehicles engaged in the construction of the
District's Project, for the term provided in paragraph 9.3 hereof; such
easement to be approximately 4,000 + feet ~n length and 40 feet in
width, and to commence at a point in the East one-half of Section 31,
Township 11 North, Range 20 East, M.D.B.&M. which is along the
centerline of D~amond Valley Road, and approximately 600 + feet west of
the western end of the bridge conveying Diamond Valley Road across the
channel of Indian Creek; thence south to a point approximatly 10 feet
Page
~"~ north of the western edge of the ~ water--~'--~-2'Sl~rInd~a%~we t n ed
~/'~__~) Creekj thence southwesterly approximately para]]el to the g
~"'~f '~h~Lh~=h ~-z2tar m=~bar~ztcd ~ Indian Creek to ~ntersect the northern
~ ~oundary ~f the Diamond Valley Dam Parcel at the point of diversion of
~he Mill~ch Ditch into Indian Creek; such easement parcel being now
estimated to be approximately 3.7 ~ acres (see Exhibit "A", hereof); and
2. HEISE CLAY MATERIAL. Heise will convey to the District, free
and clear of any encumbrances whatsoever, the r~ght to remove 90,000 cubic yards
of clay material from the Temporary Clay Easement for use in the construction of
the District's Project ("Clay Materials", hereinafter). Upon notification, as
hereinafter provided, Heise will allow the District to increase the volume of
Clay Materials to be removed by the District to a maximum of 150,000 cubic yards
of material.
PAYMENTS TO HEISE BY DISTRICT. The cash consideration paid to
District on or before the Close of Escrow, shall be as set forth
Hei se by the
bel ow:
3.1 CLAY MATERIAL PRICE. The sum paid for the right to
remove up to 90,000 cubic yards of the Clay Materials from the Temporary Clay
Easement shall be two hundred thirty thousand dollars ($230,000.00). An
additional sum equal to the volume of Clay Material removed above 90,000 cubic
yards, if any, compounded by a price of $2.00 per cubic yard shall also be pa~d
(monthly) as the additional Clay Material is removed. (collectively "Clay
Material Price", hereinafter) The Clay Material Price includes all consideration
for all damages incurred by Heise as a result of the removal of the Clay
Mater~al, except as otherwise provided ~n paragraph 9 hereof. Payment of said
sum of two hundred thirty thousand dollars ($230,000.00) shall be made to HeJse
at Close of Escrow.
3.2 TEMPORARY EASEMENT USE FEE. Should the D~str~ct
require the use of the Temporary Clay Easement and Temporary Construction Road
Easement (collectively "Temporary Easements", hereinafter) for a period in
excess of the 24 month period provided in paragraph 9.3 hereof, the D~strJct
shall pay the sum of thirty-five thousand dollars ($35,000.00) for each
additional annual grazing season as described in paragraph 9.3 hereof, or
port~on thereof, upon the first day of such additional period.
3.3 PROPERTY PURCHASE PRICE. The price for the Heise
Property after adjustments for actual surveyed acreage shall be determined as
set forth in paragraph 10 hereof and shall be hereinafter referred to as the
"Property Purchase Price". Heise hereby offers to sell the Heise Property for
the prices set forth below. This offer shall be good only until 5:00 p.m. on
May 23, 1983, or a petition is fi]ed by the D~strtct for court determination of
the Property Purchase Price pursuant to paragraph 10.4 hereof; which ever shall
first occur. This offer is submitted to the D~strict for purposes of a
compromise of threatened condemnation litigation and may not be used as evidence
Jn any judicial preceedings.
Page 4
No. Property
Acres
! Harvey Place Parcel .(1). 240.00
lA Harvey Place Disputed Pcl 10.00
2 Diamond Valley Dam Parcel 42.00
3 Diamond Valley Scossa Pcl 11 .00
4 Diamond Valley SE Parcel. 34.00
5 Diamond Valley NE Parcel. 41.00
E-1 Road Easement ...... 1.90
E-2 Temporary Clay Easement . 140.00
E-3 Temp. Const. Road Esmnt · 3.70
Price/Acre
Total Price
$ 1,600.00 $ 384,000.00
See Paragraph 5.3
3,500.00 147,000.00
2,750.00 30,250.00
2,500.00 85,000.00
2,000.00 82,000.00
2,750.00 5,225.00
See Paragraph 3.1
See Paragraph 8.5
Total ..........
523.60 $ 1,400.83 $ 733,475.00
Notes:
(1) The sale of 50% interest in 480 acres or the equivalent of 240 acres.
Plan and the
Minden, Nevada
Heise for 50%
chargeable to
see paragraph 12.2.2 hereof.
District as
restrictions:
to
3.4. COST REIMBURSEMENT. He]se shall cause the Clay Removal
Farm Plan to be prepared by the Soil Conservation Service of
as prescribed in this agreement. The District will reimburse
of the cost to HeJse of the preparation of such plans. The cost
the District shall not exceed ten thousand dollars ($10,000.00),
tLESTRICTIONS UPON TITLE.
to the Heise Property
4.1
the properties
The title conveyed by He]se to the
shall be subject to the following
PARCEL NO.'S ] - 5. Fee Simple Title shall be conveyed
described in paragraph 1 hereof as Parcel Numbers 1 thru 5,
subject only to the following:
4.1.1 property taxes for the year 1983-84 as assessed
by the County of Alpine, State of California; and
4.1.2 conditions, covenents, easements, and
restrictions of record as shown on preliminary title reports issued by Inter-
County Title Co. on March 15, 1982 as No. ALP 1916 LH and on November 12, 1981
as No. ALP 1888 MS.
4.1.3 a reservation to Heise of a non-exclusive road
easement for vehicle and equipment access to the lands of Heise across the
Diamond Valley NE Parcel from Diamond Valley Road which shall parallel and be to
the north of Indian Creek; such easement shall be of a width which will meet
minimum county requirements and shall run generally in an east-west d~rection
w~th the location of the easement to be approved by the parties hereto.
4.1.4 the condition placed upon the District which is
binding upon any successors in ~nterest to the D~strtct which absolutely
prevents any future development of the properties for residential, industrial or
commercial use which is not specifically provided for in th~s agreement, which
shall be a covenent running w~th the land as provided in paragraph 6.8 hereof,
the violation of which shall be a cause of action for injunctive relief against
the District, its successors, or assigns.
Page 5 ~
4.1.5 the reservation for the benefit of Heise and any
other party presently, or in the future,.hav~e~tr~~ ~Yt~a~Sp~s~
West Fork of the Carson River via the pr
channel of Indian Creek, of a non-exclusive 80 foot wide easement ("M~ll~ch
" ereinafter) which is to run generally in an east-west
Flood Channel Easement , h ........ ~ ~ the northern boundary of the
direction along, and immediatel~, to ~e ~ ~ use to~ether with access to,
D~amond Valley Dam Parcel, as well as tne ~8
to be constructed by the Distr~ct within the Mi]lich
the flood channel which is ......... ~h 8.1 of this agreement (described
Flood Channel Easement as provided xn
d Channel") for the conveyance, without interruption or
as the "Millich F]oo ......... d duties from the West Fork of
, es ect~ve water rlgnc~ ~,~ ·
~nterference of their ~ P ...... ~ ~ Tndian Creek. This reservation of
to the present cua~,,~ ~ ~ ~ .... ~ent to Heise of
the Carson RtVerother than Heise is conditioned upon cue
use to parties
any interest which such parties may now hold in and to the use of the present
channel of the Mi llich Ditch which ~s within Section 36, Township 11 North,
Range 19 East and Section 31, Township 11 North, Range 20 East, M.D.B. & M.
4.2 PERMANENT EASEMENTS. The District shall be conveyed a
r~ght to utilize the easements described in paragraph 1 hereof as Easement
Numbers 1 thru 3 subject only to the following:
4.2.1 conditions, covenents, easements, and
restrictions of record as shown on preliminary title report issued by Inter-
County Title Co. on November 12, 1981 as No. ALP 1888 MS; and
4.2.2 a reversionary clause in favor of Heise which
shall provide for reversion of rights of the District to utilize the three (3)
easements to Heise, if such rights of use, or any of them, is abandoned by
District pursuant to State Law; and
4.2.3 the reservation to Heise, or its assigns, of a]]
rights not assigned to District or which will not interfere with the District's
use; and
5. FRESH WATER PROVISIONS The construction and operation of the
District's Project will require changes in the h~storical flow, storage and
application of fresh water in the area of Diamond Valley. The provisions of
this paragraph 5 are intended meet the requirements of the District's Project
while protecting the historical irrigat~on of the property retained by Heise and
the down stream irrigators as provided for in the rights decreed in the Judgment
in the United States v. Alpine Land & Reservoir Co. (the "Decree"). It is
intended that Heise shall suffer no damages from any change, except as provide
in paragraph 5.2.2 hereof, in the historic water use resulting from the
District's Project and the parties have therefor agreed to provisions for future
adjustments as set forth in paragraph 5.9 hereof.
5.1 PETITIONS TO U.S. DISTRICT COURTt Each of the part~es
is charged with preparing, submitting and obtaining approval of the U.S.
District Court in Reno, Nevada ("District Court", hereinafter) of the matters
which affect their proposed use of waters as set forth herein which they believe
to require Distr~ct Court approval ("Petition", hereinafter)- The Petition, or
petitions, shall be consistent with th~s Agreement and neither party shall
object to the others Petition so long as such petition is consistent with this
Agreement.
Page 6
5.1.! LEGAL COSTS. All of the costs of the
preparation, submission and obta~ning of court approval of the terms of the
Water Agreement by the U.S. District Court w~l] be the responsibility of the
parties as their interest appears.
5.1.2 ADJUSTMENTS. In the event that Heise
unable to obtain Distr~ct Court approval of its water uses as provided for
herein, the District w~]l accomodate any water ava~lab~lity short fall resulting
from such lack of approval by increasing the volume of effluent available for
delivery to Heise. The District's Reclaimed Water l~abflity pursuant to this
paragraph 5.1.2 shall be l~m~ted to 400 acre feet per season.
5.2 DISTRICT DIVERTED WATER. Heise acknowledges and agrees
to the diversion and change in use by the District of waters of Indian Creek and
the West Fork of the Carson River set forth tn this paragraph 5.2.
5.2.1 SCHWAKE WATERS. The D~strict may divert the
William F. Schwake, Janet Schwake (Clogston Ranch) available water flow, volume,
or duty (Claim No.s 46, 456, 457, and 458) ("Schwake Water") to Indian Creek
Reservoir provided 50% of such water diversion which is available from the
waters of the West Fork of the Carson R~ver is diverted to Heise via the M~]lich
Ditch at the diversion point of the Snowshoe Thompson No. ! Ditch from the
Mill~ch Ditch, and 50% of the Schwake Water which is available from the waters
of Indian Creek is diverted to Heise via the MillJch Flood Channel at the
diversion point of such channel from Indian Creek. The measurement of such
waters shall be at the points of diversion to Heise.
5.2.2 HARVEY WATERS. The Distr~ct may divert the
Harvey Place available water flow, volume, or duty (Claim No.s 47, 48, 453, 454,
and 455) ("Harvey Water") from the flows of the West Fork of the Carson R~ver
and Indian Creek to Indian Creek Reservoir provided 50% of such water d~vers~on
as measured at the MS llich Flood Channel diversion point on Indian Creek is
delivered to Heise at the beginning of the Heise Pipeline which Js located at
the base of the Harvey Dam. During past "short water years", a portion or all
of these waters have been diverted directly to Diamond Valley for irrigation
application. Heise, for the consideration set forth in paragraph 5 and 6
hereof, agrees to the change in the historic water use of the Harvey Water and
acknowledges that the historic use of the Harvey Water will in no way reduce the
flow, volume, or duty of such water which is available to the District for
diversion as herein provided.
5.2.3 MUD LAKE WATERS. Heise will not oppose the
District's diversion of the available water flow, volume, or duty as to Claim
No. 463 in the Decree to Indian Creek Reservoir to be returned to Indian Creek
channel at the end of the Harvey Pipeline during the period October ! to
February 1 of each ~rrigation season.
5.3 HEISE INDIAN CREEK RESERVOIR USE. It is the desire of
the District to maximize the recreational and fishery uses of Indian Creek
Reservoir for the benefit of the residents of Alpine County as well as to
provide for the irrigation water needs of the agricultural lands of such county.
Therefore, as partial consideration to Heise for the loss of the storage
capacity and use of "Stevens Lake", the conveyance to the D~strict of the
Stevens Lake Parcel, and other provisions hereof, and subject only to (a) the
"minimum pool" requirements for recreational use for Indian Creek Reservoir as
established by contract with Alpine County ("Minimum Pool", hereinafter), and
Page 7
(b) the District's rights, tf any, to store waters ~n Indian Creek Reservoir to
provide a reserve for seasonal water losses due to evaporation and seepage, the
District will cause Indian Creek Reservoir to be operated in such a nmnner as to
provide He~se with the following rights to the use of Indian Creek Reservo{r:
5.3.1 HEISE STORAGE CAPACITY. Heise shall have the
r{ght to the use, annually, of the first 900 acre feet of the water storage
capacity in Indian Creek Reservoir above the Mtnlmum Pool ("Heise Storage
Capacity", hereafter) (see the ICR Graph, attached hereto as Exh{bit "B"),
subject to only to (a) the seasonal storage requirements of the Evaporative Loss
Reserve (see paragraph 5.3.2, hereof), and (b) the No Sp~l] Safety Reserve (see
paragraph 5.3.3, hereof).
5.3.2 EVAPORATIVE LOSS RESERVE. The initial 585 acre
feet of the water storage capacity of Indian Creek Reservoir wh{ch is in excess
of the Minimum Pool shall be available for use by the Distr~ct to store ~ts
portion of the Schwake Water and Harvey Water, as well as any other waters which
it may in the future acquire; so long as the use of such waters is exclus{vely
for the replacement of the seasonal (April 1 to September 30) water evaporation
and seepage losses from Indian Creek Reservoir ("Evaporative Loss Reserve",
hereinafter). The volume of water storage capacity set aside for the
Evaporative Loss Reserve will be reduced weekly during the seasonal period June
1 to September 30 as shown on the ICR Graph. In the event that the Distr{ct
does not have sufficient fresh water flows available to it during any season to
provide it with the volume of water required to utilize the water storage space
set aside as Evaporative Loss Reserve, Heise may utilize such water storage
space. Any water so stored by Heise is subject to reduction by a volume, equal
to the seasonal evaporative and seepage losses of Indian Creek Reservoir which
can not be met by fresh waters available to the District; and therefore, such
water after said reduction will be available for re3ease in accordance with the
limitations established by the ICR Graph.
5.3.3 NO SPILL SAFETY RESERVE. The water storage
capacity of Indian Creek Reservoir which is in excess of the aggregate of the
storage volume of the Minimum Poo3 and the Heise Storage Capacity is subject to
control due to dam safety requirements ("No Spill Safety Reserve", hereinafter)
(see ICR Graph). For reasons of dam safety or waste discharge l~mitations, the
maximum water level of Indian Creek Reservor may not be allowed to exceed a
"Staff Level" of 50 feet prior to June 1 of each year, and therefore, the Heise
Storage Capacity will be limited during the period prior to June 1 of each year
to the volume of storage available below such water level. He{se sha33 have the
1st right and option to ut{lize, annually, at no charge, the water storage
capacity in Indian Creek Reservoir which {s allocated to the No Sp~ll Safety
Reserve should the District, at its sole discretion, after annual consideration
of dam safety and discharge requirements and potential Indian Creek "run off",
make such reservoir water storage capacity available for seasonal water storage.
The annual dec~sion of the District as to the avaIlab~lity and t~ming of
availability of the No Spill Safety Reserve for use by HeRse for water storage
shall not be unreasonable.
5.3.4 ADJUSTMENTS TO MINIMUM POOL.
5.3.4.1 COUNTY AGREEMENT. The m~nimum pool
requirements set forth on the ICR Graph are subject to reduction to conform to
the requirements established by the District's contract w{th Alpine County; and
under no circumstances will such ntlnimum pool requirements be greater than a
Page 8 ~--_~ C-'~
such flow
the Upper
Heise.
Staff Level of 45 feet which corresponds to an estimated storage volume of 1,515
acre feet.
5.3.4.2 DRY YEAR. Should the estimated
aggregate water flows of the West Fork ~f the Carson River past the Woodfords
flow gage be estimated by the Snow Survey and Water Supply Forcast Unit of the
United States Soil Conservation Service, Reno, Nevada to be less then an
aggregate seasonal (April 1 to August 31) volume of 45,000 acre feet a "Dry
Year" will be declared to have occured and the the minimum pool level for
October 1 of such year will be reduced to a water level which shall be equal to
a "Staff Level" measurement of 40 feet ("Dry Year Minimum Pool", hereafter). In
the event of a series of Dry Years the parties will cooperate to develop a f]ow
of water which will reduce the damages to Indian Creek Reservoir to a level
which is acceptable by the parties charged with such responsibility. Heise
shall receive the benefit of the reduction of the Minimum Pool level to the Dry
Year Minimum Pool level and shall, therefore, be charged with supplying the flow
of water required to return the water level of Indian Creek Reservoir to the
Minimum Pool level during the first year in which above normal water supplies
are available from the flows of the West Fork of the Carson River.
5.3.5. FLUSHING FLOWS. Heise shall attempt to
maximize the "flushing flow" of its fresh water flow, volume, or duty from the
West Fork of the Carson River thru Indian Creek Reservoir, but in no event shall
be less then 500 acre feet per year commencing upon the completion of
Dressler Ditch and the Heise Pipeline if such water is available to
5.3.6 STORAGE RIGHTS. Heise intends, w~thin the
limitations of this paragraph 5.3, and subject to the flow limitations of the
Upper Dressler Ditch, to seek from the governmental agencies having jurisdiction
additional regulating and term storage rights for use in Indian Creek Reservoir
and the D~strict shall not object to such actions so long as they are consistent
wi th this agreement.
5.4 UPPER DRESSLER DITCH. The District shall construct a
canal capable of rerouting a flow no less than 30 cubic feet per second of the
waters of Indian Creek at the point of diversion of the Millich Flood Channel
("IC Diversion Point") to Indian Creek Reservoir ("Upper Dressler Ditch",
hereinafter) and thence to return such flows to the present channel of Indian
Creek on the Diamond Valley Dam Parcel via the Harvey Pipeline as shown on the
map attached hereto as Exhibit "A". Heise shall have the right to utilize the
Upper Dress]er Ditch and Harvey Pipeline for conveyance of its waters to its
Diamond Valley lands. Heise shall not object to this change in the channel of
Indian Creek nor the diversion at the IC Diversion Point during the seasonal
period February 1st to October 1st of up to a flow of 30 cubic feet per second
of the waters of Indian Creek thru Indian Creek Reservoir via such canal
provided such waters are returned to Indian Creek via the Harvey Pipeline and
are subject to diversion from such pipeline to the Heise Pipeline for delivery
to Heise in accordance with the water rights of Heise. No limitation shall be
placed upon such diversion during the seasona] period October 2nd thru the
following January 31 st.
5.5 INDIAN CREEK FLOOD WATERS. Heise shall not object to
diversion of the Indian Creek flood water flows around the Harvey Place Parcel
to the Present channel of Indian Creek at t.h.~ Diamond Valley Dam Parcfal via a
new flood channel ("M~lltch Flood Channel · Heise shall be permitted to
Page 9
to Heise periodically
practices, but in no
bi-monthly.
utilize the Mi llich Flood Channel from its point of commencement at the
diversion structure on Indian Creek on the lands of Schwake to divert fresh
waters from Snowshoe Thompson No. 1 ditch to its lands and pipeline.
5.6 DIVERSION OF FRESH WATER PIPELINE DISCHARGE. Heise
shall have the right to divert the fresh water released from Indian Creek
Reservoir (discharge of the Harvey Pipeline), during the annual period April 1
to October 1, to the lands of Heise via the Heise Pipeline so long as such
diversion is consistent with (a) the water rights of Heise, (b) any District
permit, and (c) the District Court requirements. The District shall advise
Heise of any permit requirements which will affect Heise prior to finalization
of such requirements.
5.7 CONTROL OF FLOW OF WATERS THRU INDIAN CREEK RESERVOIR.
The control of the flow of waters thru Indian Creek Reservoir shall be the
responsibility of the District; such District control shall be exercJsed in
accordance with the terms of this Agreement, in so far as such control affects
the rights of Heise hereunder, and shall provide for the following:
5.7.1 MEASUREMENT, RECORDS. The District shall
provide the personnel required, to control the flow of waters thru Indian Creek
Reservoir and to provide accurate measurement of the tn-flow (measured at the
Upper Dressler Ditch diversion point from Indian Creek) and out-flow (measured
at the discharge point of Indian Creek Reservoir into the Harvey Pipeline) of
the waters diverted to Indian Creek Reservoir. Flow records shall be provided
as required to allow Heise to plan its irrigation
event shall the report period be less often then
5.7.2 DELIVERY TO HEISE. Waters stored in Indian
Creek Reservoir which are intended for delivery to Heise will be released in
accordance with the instructions of Heise provided the requirements of paragraph
5.6 hereof are complied with.
5.7.3 SAFETY RELEASES. The District may draw the
pool elevation of Indian Creek Reservoir below the 52 foot staff level to the
extent necessary (a) to make emergency repairs which require a drawdown, or (b)
for other purposes with prior written approval of Heise. Any District releases
of Heise stored waters during the period June 1 to October 2 pursuant hereto
which are not beneficially used by Hefse shall be replaced by District, at the
option of Heise, by an equal volume of Reclaimed Water. Any water stored during
the period! October 2 to the following March 31 are to be "at r~sk" by Heise.
5.8 EVAPORATION LOSS OF INDIAN CREEK RESERVOIR. Commencing
on April 1 of each season and continuing bi-weekly thereafter the District will
establish and advise Heise of the minimum water elevation of water stored in
Indian Creek Reservoir which is required to insure that sufficient waters are
stored in the reservoir to provide for any evaporation and seepage losses which
may reasonably he anticipated during the period ending on October 1st of such
season as well as the minimum pool requirement on October 1st of such year.
5.8.1 DISTRICT PRIMARY RESPONSIBILITY. The District
has estimated that the Indian Creek and West Fork of the Carson River water
rights which it has acquired will be sufficient to replace losses from Indian
Creek Reservoir due to evaporation and/or seepage. The District has primary
responsibility for such losses.
Page 10
HEISE SECONDARY RESPONSIBILITY.Should the
5.8.2 ~ .. ~tain the Minimum
. unable to, from fresh water aval~a~!~ATM ~'n'~nvided in paragraph
District ~e - ~ -~-- Creek Reservoir, ex~pt
Pool requirement .zor ~?~%~vert sufficient amounts of its water~ from. tne~%%~
5.7.3 hereof, He~se w~ ~ ............ ~ ~n maintain such requ~reme
Fork of the Carson River to Indian ~reem m=~=~
5.8.3 DRY YEAR CONVEYANCE LOSS EXCEPTION. Should the
- the District and He~se be i~sufficient to
combined waters available from .... ~ ~=ach Indian Creek Reservoir thru ~he
^~~ ~ "head" of water wn~cn ~ ~ ...... ~tch w-lthout a fttty
~ ....... -. · ~-~ o-~ the uoper ~ress~e~
Snowshoe Thompson No. ~ u~, ~.~ . ~ .... ~o ~tmm waters wllJ De
o of b loss in conveyanc=,
ercent (50%) reduction ~he[e ~ ~ .... ~ .... resnonsibility of Heise, except
P nve ed directly to the lan~s o~ ,e~se, anu ~,~ r _ . ~ -
co y - - onve~ waters to or thru Indian Creem Keservozr
a raoh 5 3 hereot, to c y .
as to par g _ - ion exists.
shall be waived during the period which such condit
ADJUSTMENTS. The parties shall periodically
5.9 FUTURE ~ _ i=~^~ under this paragraph 5, and
· he rovisions prowu~
review the lmplement~tio] of t___~., the oarties shall amend this agre~ment.~}~
' ad'ustments are zouno nece~a~. . - . _ - necessar~, then the par~
z~ ~ ........ ~ ~nnroval of sa~d aojus~ments are ~ !~ -~cation of
the ozstrz~ o~=%~+~e District Court for court approvaz
shall jointly pe~u~ ....
the use of waters.
6. WASTEWATER EFFLUENT PROVISIONS.
6.1 HEISE DELIVERY OPTION. HeJse shall have the option to
take delivery of up to the volume of Reclaimed Water specified in subparagraph
6.1.3 from the District, annually, commencing on April 1 of each year. This
Reclaimed Water right of Heise shall be administered as follows:
6.1.] TERM OF OPTION. The option right of Heise to
receive Reclaimed Water shall begin on April 1, 1984 and shall continue for 10
years thereafter. The annual delivery period shall be April 1 to September 30.
On or before March 25 of the year following the 10th option year of Heise, Heise
will have the right to convert its option right to a guaranteed r~ght of
delivery for the years following such date.
6.1.2 NOTIFICATION. On March 15th of each year
during the term of the option, the District will notify Heise as to the amount
of Reclaimed Water which will be available to Heise. Heise shall have until
the following March 20 to inform the District of the volume and timing of
Reclaimed Water delivery which Hefse shall take. The District may request that
Heise take delivery of Reclaimed Water in wet years prior to April lst; such
Reclaimed Water delivery shall not reduce the volume specified in paragraph
6.1.3 hereof.
6.1.3 VOLI~ OF DELIVERY. The volume and priority of
Heise's right to Reclaimed Water shall be as set forth in this subparagraph-
Heise shall have a right to 400 acre feet annually which right shall be of equal
priority to the following parties and may be subject to an increase in the
amount of 400 acre feet per season pursuant to paragraph 5.1.2 hereof, which
volume shall have priority over and be charged to other Reclaimed Water users:
Page 11
Name
Schwake .... . . · · ·
D~amond D~tch ......
Smith ..........
Heise Land & Livestock .
Fred Dressler Company..
Total. . . . ....
Drought Year Normal Year
ac. ft. ac. ft.
500 500
1,800 2,200
3OO 4OO
300 400
600 800
3,500 4,300
In the event that Reclaimed Water is available from the D~strict for
agricultural irrigation application Jn any year in amounts in excess of 4,300
acre feet, Heise shall have first priority to receive, annually, an additional
400 acre feet for a total annual delivery of 800 acre feet. HeJse shall also
have the right to receive a 19% share of any increase in Reclaimed Water flow
d~stributions for agricultural irrigation application above 4,700 acre feet per
year.
6.1 .4 DELIVERY POINTS & VOLUME. The three (3) points
at which the District will make delivery to Heise of Reclaimed Water are set
forth on the map which is attached hereto as Exhibit "A". The p~peline
delivering Reclaimed Water to the western most point of the HeJse Pipeline shall
be capable of delivery of a flow volume of 2,500 gpm at an operating pressure
sufficient for delivery to sprinkler delivery systems s~mi]ar to those now
planned for the Schwake lands. Delivery of Reclaimed Water from the Harvey
Place Reservoir the the Heise Pipeline shall not interfer w~th fresh water
re]ease requirements of the District.
6.1 .5 RECLAIMED WATER DISCHARGE REOUIRE>~NT. Heise
shall meet all Reclaimed Water discharge requirements of the California Regional
Water Quality Board, Lahontan Region, the California Department of Health
Services, and the California Environmental Quality Act ~nsofar as the lands of
Heise are affected ("Reclaimed Water Discharge Requirement", hereinafter).
6.1.6 RECLAIMED WATER DISCHARGE LANDS. Heise shall
w~thin 60 days of a request by the District inform the District as to the lands
of Hetse on which the Reclaimed Water will be applied by Heise ("Reclaimed Water
Lands", hereinafter). Heise may, upon notification given to the District
pursuant hereto, change the Reclaimed Water Lands so long as the Reclaimed Water
D~scharge Requirement is complied with.
6.2 HEISE EVAPORATION REPLACEMENT RIGHT. In the event
that Heise is required to, from fresh waters available to it, replace
evaporative and seepage losses of Indian Creek Reservoir pursuant to paragraph
5.8.2 hereof, the District shall replace such waters w~th Reclaimed Water
delivered at the points specified in paragraph 6.1.4 hereof. Such waters are in
addition to those volumes shown in delivered to HeJse pursuant to paragraph
6.1.3 hereof. The Reclaimed Water to which Heise is entitled to pursuant to
this paragraph shall be delivered to Heise in lieu of releases from Indian Creek
Reservoir.
6.3 DISTRICT DELIVERY OPTION. The District shall, in
addition to the volumes of Reclaimed Water delivery set forth elsewhere ~n th~s
agreement, have the option of applying approximately 720 ~ acre feet of
Page 12 ~
Reclaimed Water annually to approximately ]60 acres of
("District Reclaimed Water Delivery Option", hereinafter)
conditions:
the ]ands of Hetse
on the following
6.3.1 APPLICATION LANDS. The ]60 acres of land on
which the Reclaimed Water will be applied are located north of the Diamond
Valley Road in the Northeast one-quarter of Section 36 and the Southeast
one-quarter of the Southeast one-quarter of Township 11 North, Range 19 East,
M.D.B.&M. The soil classification of such lands are Cave Rock loamy sand or
Calpine stoney coarse sandy loam.
6.3.2 TERM OF OPTION. The term during which the
District may exercise its option rights pursuant to this subparagraph 6.3 shall
be ten (10) years from the date of this Agreement. Notification of the
District's election to exercise it option shall be given to Heise as herein
provided in paragraph 6.1.1 hereof.
6.3.3
Reclaimed Water Delivery Option
annual delivery of such waters
paragraph 6.1.1 hereof.
TERM OF DELIVERY. Should the District
be exercised, the District shall continue the
for the remainder of the term specified in
6.3.4 RECLAIMED WATER APPLICATION METHOD. The
Reclaimed Water delivered pursuant to this paragraph 6.3 shall be applied by
sprinklers on automatic, overhead, linear move or center pivit with corner
mechanism equipment similar to the Valley Automatic Irrigation System.
6.3.5 VOLUME DELIVERED. The annual volume of
Reclaimed Water delivered pursuant to this paragraph 6.3 shall be 4.5 acre feet
per acre per season.
6.3.6 OUALITY & DISCHARGE REOUIREMENTS. The District.
shall comply with all Reclaimed Water quality and discharge permit requirements
provided for in this paragraph 6, and shall under no circumstances allow any
obnoxious odors to be produced which will in any manner detrimentally affect or
limit the use or value of adjacent lands of Heise.
6.3.7 DELIVERY PIPELINE EASEMENT. The District shall
have the right to a pipeline easement from the western most point of the Hetse
Pipeline north to the northern edge of Diamond Valley Road, such easement to be
used to construct a pipeline to deliver Reclaimed Water to the lands described
in paragraph 6.3.1 hereof.
6.4 FIRE PROTECTION. As consideration for the District
Reclaimed Water Delivery Option, the District will provide Reclaimed Water under
pressure for use by Heise for fire protection on its lands which are situated in
Section 35 and 36, Township 11 North, Range 19 East, M.D.B. & M as follows:
6.4.1 ALPINE VILLAGE CONNECTION. In the event of the
District's delivery of Reclaimed Water to Alpine Village for use for fire
protection Heise shall be allowed, at its sole cost, to connect its pipeline to
the lines delivering Reclaimed Water to such lands. In the event that the
District desires an easement across Heise lands for delivery of Reclaimed Water
to Alpine Village, Heise shall grant the District such easement provided (a) the
location and width of the easement is acceptable to Heise, (b) fire hydrants
are placed upon the District's pipeline at intervals specified by Alpine County,
Page
e Se- s c ,~ - ~-~ay ~ w~
damages to
may result
Heise.
and (c) He~se is allowed to connect its own pipeline to the Distr~ct's pipeline.
Upon request by Heise, the D~str~ct will within 60 days locate such easement.
6.4.2 ABLE CONNECTION. In the event of the
District's delivery of Reclaimed Water by pipeline to the ]ands of Able which
are adjacent to Heise, the District will provide Heise with an easement across
such lands and authority to connect Heise's pipeline for fire protection to such
District pipeline. As consideration for such easement Heise will wave any
rights to the first 80 acre feet of Reclaimed Water delivered to Alpine County
annually above the annual volume total of 4,700 acre feet.
6.4.3 COST OF PIPELINE. The cost of connection to
the District's pipeline as well as any pipeline constructed by Heise within such
parcels shall be the respons~bility of Heise.
6.4.4 FLOW REDUCTION FOR FIRE. The vo]ume of
Reclaimed Water flows to the lands of HeJse may he reduced as necessary to
provide adequate pressure and vo]ume delivery of Reclaimed Water during period
required for fire protection.
6.5 RECLAIMED WATER OUALITY. The public health criteria
for the use of Reclaimed Water in Alpine County, California have been
established pursuant to Section 13521 of the California Water Code as
administered by the California Regional Water OualIty Control Board, Lahontan
Region ("Lahontan Board", hereinafter). The District shall at all times comply
with the requirements for Reclaimed Water quality as prescribed by the Lahontan
Board, as provided by Sections 13522.6-13524 of the California Water Code as
well as any and all standards established by any other local, state or federal
agency having jurisdiction over such discharge ("Reclaimed Water Oua]ity
Requirement", hereinafter). The District shall notify Heise Jn a timely manner
of any failure to meet the Reclaimed Water Quality Requirement, and Heise upon
such notification may, at its sole discretion, immediately terminate the
delivery of Reclaimed Water provided for in this paragraph 6 for the period of
time that the Reclaimed Water Quality Requirement is not substantially complied
with. Technical violations not materially affecting the "public health",
"agricultural use" or "livestock consumption" shall not be a bas~s for
termination of delivery hereunder. Heise is accepting the delivery of Reclaimed
Water for application to its lands as a result of representations of the
District and the Lahontan Board that such application w~ll under no
circumstances be detrimental to the "public health"; and therefore, Heise shall
under no circumstances have any respons~b~lity or liability or suffer any
itself or to any party for the quality of the Reclaimed Water, which
from the proper application of the Reclaimed Water to the lands of
6.6 HOLD HARMLESS. The District shall hold Heise harmless
frbm any and all damages to Heise as well as any and all claims for damages
against Heise by any person or party arising out of any act or failure to act of
the District under the terms of this paragraph 6.
6.7 NON-PERFORMANCE BY HEISE. If for any reason except the
Reclaimed Water Quality Requirement, Heise shall fail to take delivery of
Reclaimed Water and to use and apply the same as provided in this paragraph 6,
the District shall have the right to an easement for entry upon the lands of
He~se, either through its own personnel or by contractors for the purpose to
apply and discharge to and upon the lands of Heise said Reclaimed Water as
Page 1 4
contemplated by this Agreement; and the reasonable d~rect labor costs therefor
shall be paid by Heise. Heise shall have no l~abi]~ty for failure to take
delivery of Reclaimed Water other than as specifically set forth in this
paragraph 6.7. District may elect, in the event of a default by HeJse pursuant
to this paragraph 6.7, to discontinue delivery of Reclaimed Water to Heise under
the terms of this agreement and terminate all future District's obligat~ons to
Heise pursuant to paragraph 6 of th~s Agreement. The parties waive any and all
claims, one against the other for termination by District.
6.8 COVENANT RUNNING WITH THE LAND. The terms and
conditions of this paragraph 6 shall be summarized in a form suitable for
recording in the County of Alpine, State of Cal~fornta and upon recordation
shall be binding upon successive owners of the Reclaimed Water Discharge Lands.
6.9 REGULATIONS, LAWS. The parties hereto shall comply
with any appl~able laws, regulations or orders of any agency having jurisdiction
over their use of Reclaimed Water pursuant to th~s Agreement.
6.10 PROTECTION OF LANDS. The terms of this Agreement shall
not be interpreted in such a manner as to allow the District to render the ]ands
of Heise unsuitable, or unsafe for the production of crops or livestock.
6.11 UNCONTROLED CIRCUMSTANCES. Neither party shall be
required to perform its obligations hereunder during periods which Jt is
incapable of such performance for reasons beyond its control such as acts of god
and labor strike.
7. SCHWAKE TAILWATER AND DRAINAGE WATERS. In the event that it Js
necessary for the District to instal] a groundwater drainage system on the H. R.
Schwake - Clogston Ranch to make such lands suitable for application of
Reclaimed Water, Heise will allow the flow of such water onto the ]ands of HeJse
so long as the quality of such water is su~tab]e for use in forage production
and livestock consumption. Heise will also allow the continued flow of Schwake
irrigation tat]water across the lands of Heise pursuant to the same quality
condition and the condition that Heise is receiving delivery of Reclaimed Water
from the District. The improvements required to deliver, and the delivery of,
such waters into the Heise Pipeline will be provided, maintained and operated by
the District, and approved by Heise.
8. CONSTRUCTION, MAINTENANCE AND/OR OPERATION. The parties shall
have the following responsibilities relative to construction, maintenance and/or
operations. The burden of quality of construction, maintenance and operation
which shall be placed upon the parties' responsibilities pursuant hereto shall
be that which is consistent with the accomplishment of the function to be
performed:
8.1 MILLICH FLOOD CHANNEL EASEMENT.
8.1.1 CHANNEL CONSTRUCTION. The District w~ll
a new water channel within the easement which shall have a capacity no
470 cubic feet per second and shall be constructed w~thin the
area of the easement. The cost of construction of the water channel
be the sole responsibility of the District. The
and constructed so as to minimize the visual impact
construct
less then
described
or any service road shall
channel shall be designed
from Diamond Valley Road.
Page 1 5
8.].2 DIVERSION STRUCTURES. The District w~]l
construct one water control and diversion structure to contro] and d~vert the
flow of waters from the Millich Flood Channel to the Heise Pipeline at a point
near the entry point of the Millich Flood Channel onto the lands of HeJse from
the lands of Schwake. The diversion point shall have a capacity to divert a
flow of 20 cubic feet per second to the Hetse Pipeline.
8.1.3 MAINTENANCE. The Distr~ct shall be responsible
for the maintenance and repair of all of the water diversion, alignment, and
control structures, roads and fences which are to be located within the Millich
Flood Channel Easement.
8.1.4
operation of structures and
requirements of Heise.
OPERATIONS. District shall be responsible for
water flows in a manner which will accomodate the
8.2
MILLICH DITCH & SNOWSHOE THOMPSON NO. ] DITCHES.
8.2.1 CHANNEL ABANDONED. The present channel of the
the southern portion of Diamond Valley w-Ill be abandoned
Millich Ditch across
and the channel combined with the Millich Flood Channel which ts to be
constructed directly south of the present Millich Ditch.
8.2.2 DIVERSION STRUCTURES. The D~strict shall cause
the structure utilized to divert the waters of the West Fork of the Carson River
to the combined channel of the Millich and Snowshoe Thompson No. 1 ditches as
well as any structures utilized in the control of the flow of waters thru such
combined channel to and including the diversion structure utilized to separate
the flow waters of Snowshoe Thompson No. 1 ditch from those of the Mil]ich
ditch, as well as any water control structures on the Snowshoe Thompson No. 1
Ditch to Indian Creek to be reconstructed and maintained as required at District
expense in a manner consistent with the uses for which such structures are
intended. The District will construct a diversion structure at the point of
entry of the Mtllich D~tch onto the lands of Heise from the lands of Schwake
which will divert up to a 20 cubic feet per second flow from such MJll~ch D~tch
into the Heise Pipeline.
8.2.3 MAINTENANCE. Prior to the completion of the
District's Project, the District shall, at its cost, cause the Snowshoe Thompson
No. 1 ditch from its point of diversion from the MR llich ditch to its point of
diversion to the channel of Indian Creek to be cleaned, and the capacity of the
ditch shall be increased to convey the ditch's original flow rate capacity. The
District will be responsible for the maintenance of the MJllich Ditch to the
point of Diversion of the
maintenance of the Snowshoe
Indian Creek.
8.2.4
Snowshoe Thompson No. 1 Ditch as well as the
Thompson No. I Ditch from the MJlltch D~tch to
OPERATIONS. Each party shall be responsible
for the operational control of their respective water flows.
8.3 UPPER DRESSLER DITCH/HARVEY PIPELINE. All
construction, repair, modification, maintenance and operation of the Upper
Dress]er Ditch and the Harvey Pipeline shall be the sole responsibility of the
District. Such canal shall be constructed so as to minimize seepage losses.
8.4 ROAD EASEMENT. Any and all construction, repair,
Page 16
modification, and maintenance of the improvements to the Road Easement shall he
the sole responsibility of the District.
8.5 TEMPORARY CONSTRUCTION ROAD EASEMENT. Prior to use by
f the Temporary Construction Road Easement, the District will
the District o ..... ~ 20 feet in width which is elevated as nec
.... ~sar~ t~n° more L~
construct a roaa .... ~ ---~ ~asement to the south ena o~
provide a uniform grade from tne north ena o~ ~u~,, ~
such easement. Water control culverts and structures will be installed under
such road at locations and to design specified by the Farm Plan and approved by
the District. The District will also construct an irrigation ditch along the
western edge of the Temporary Construction Road Easement which shall be to the
grade and of the size specified by the Farm Plan. Heise intends to utilize a
portion of the Temporary Construction Road Easement to prevent the flow of
irrigation waters from reaching the channel of Indian Creek, and in connection
therewith, the District will construct an embankment along such easement which
will accomplish such purpose of Heise. During the term of use by the District
of the Temporary Construction Road Easement, any and all construction, repair,
modification, and maintenance of the Temporary Construction Road Easement shall
be the sole responsibility of the District.
construct, at
diameter, and
waters to the
Pipeline will
8.6 HEISE PIPELINE.
8.6.1 PIPELINE CONSTRUCTION. The District wi]]
its sole costs, a pipeline which is no less than 24 inches
of mortar lined steel or comparable materials for the delivery of
lands of Heise ("Heise Pipeline", hereinafter)- The Heise
connect at its eastern most point to the Harvey Pipeline and will
proceed westerly under the present channel of Indian Creek to a point
approximating the present discharge point of the Milltch Ditch into Indian
Creek; thence in a westerly direction, generally parallel to the Mi llich Flood
Channel and approximately 25-100 + feet northerly of the Millich Flood Channel
to the point of intersection of-- the Mi llich Flood Channel with the present
Millich Ditch, thence northwesterly approximately 500 feet to the point of entry
on the lands of Heise from the lands of Schwake of the present .~lillich Ditch.
The pipeline will be connected to the Harvey Pipeline in such a manner as to
receive water flow under a pressure head consistent with the elevation of the
water level of Indian Creek Reservoir. The Heise Pipeline will also be
connected, thru a closed pressure system, to the discharge line of the Harvey
Reservoir at the elevation of the point of delivery to Diamond Ditch. The Heise
Pipeline will be capable of receiving at its western end and conveying 20 cubic
feet per second of the flows of the Mil]ich Ditch, or the Milltch Flood Channel,
or Reclaimed Water. Ail structures and diversions incidental to the delivery of
water to the Heise Pipeline shall be the responsibility of the District. The
Heise Pipeline shall have flow control and discharge valves installed as
specified by the Farm Plan, which plan shall specify type, location and number
of such valves (there shall be no more than 7 in-line flow control valves and 15
discharge valves). The actual location of the Heise Pipeline will be determined
by the Farm Plan. The District shall be responsibile for all costs incidental
to the construction of the pipeline including ground preparation, grading, etc.
8.6.2 MAINTENANCE. The District shall be responsible
for the maintenance and repair of the Heise Pipeline and all diversion and
control structures incidental thereto, and the District shall have reasonable
access to the Heise Pipeline across the lands of Heise.
8.6.3 OPERATION. The District shall be responsible
Page 17
for the operation of the Heise Pipeline and the discharge of waters from the
Heise Pipeline to the lands of Heise in Diamond Valley, in accordance wJth water
delivery requests of Heise.
8.7 DISTRICT RECLAIMED WATER DELIVERY OPTION. The cost of
any and all equipment, pipelines, structures, etc. required for the application
of the Reclaimed Water delivered pursuant to District Reclaimed Water Delivery
Option as set forth in paragraph 6.3 as well as the maintenance and servicing of
such equipment during the term of delivery of such effluent by the District
shall be the sole responsibility of the District. Standards of maintenance and
servicing shall be such as to insure that production of crops from the lands
irrigated by such equipment will not be impared. The District shall be
responsible for crop losses which Heise may suffer as a result of the District's
failure to meet its obligations pursuant to this paragraph 8.7. All equipment
and improvements required pursuant to paragraph 6.3 shall be installed and
operational within 12 months of the date of notification to Heise of the
District's intent to exercise its option.
8.8 FENCING. The District shall construct adequate
fencing to limit the access of domestic livestock as described below:
8.8.1 AIRPORT ROAD. A six (6) foot, mesh fence will
be constructed by the District for the purpose of limiting the access of the
public to the lands of Heise which will ~ommence at the Southeast corner of the
Northeast one-quarter of the Southeast 9ne-quarter of Section 31, Township 11
North, Range 20 East, M.D.B.&M. and will continue northerly along the western
boundary of the easement provided for Airport Road to the point of intersection
with Diamond Valley Road; thence we£t~rly along the southern boundary of the
Diamond Valley Road to the eastern end of the bridge across the channel of
Indian Creek. Provis~ons will be made for two (2), 20 foot gates allowing
passage thru such fence at two points to be specified by Heise.
8.8.2 TEMPORARY CLAY EASEMENT. The District will
construct and maintain the necessary fences to limit the access of livestock to
the 140 acres specified as the TempoL'a£y Clay Easement. The standard of
construction shall be only sufficient to accomplish the purpose of the fence for
the period of use by the District of the Temporary Clay Easement.
8.8.3 DIAMOND VALLEY DAM PARCEL. The D~strtct will
construct a fence along the northern boundary of the Diamond Valley Dam Parcel.
8.9 CONSTRUCTION PERIOD. The construction of the
District's Project will be accomplished in a manner which will not adversely
affect the agricultural operations of the Heise Diamond Valley lands, except as
otherwise provided herein. Heise will be provided with a construction schedule
and any amendments thereto as soon as such schedule(s) is available to the
District.
9. RESTRICTIONS RELATIVE TO TEMPORARY EASEMENTS. The District use
of the Temporary Easements is subject to the following restrictions:
9.1 TEMPORARY CLAY EASEMENT. The District may utilize any
portion of the area of the Temporary Clay Easement as an excavation site in
connection with (a) the removal of Clay Materials required for the construction
of its dam(s), (b) the deposit of excess soil materials, (c) the deposit of
imported Fill Materials, and (d) for access roads used in connection therewith.
Page 1 8
Such activities will
3ands. The Districts
conditions:
have a substantial impact upon the present state of such
removal of the Clay Material is subject to the following
9.1.1 MEASUREMENT. Clay Material volume removed
from the Temporary Clay Easement will be determined by measurement of such
material after being placed and compacted at the Dam sites plus an additional
volume of 15% to allow for compaction. A record of such volume removed will be
delivered to Heise monthly during the Construction Period,
9.1.2 TOP SOIL. The top layer of soil of any area to
be excavated or filled by the District must be removed to an average depth of 12
inches ("Top Soil", hereinafter) prior to any excavation or filling. The Top
Soil will be stockpiled, and returned to the surface of such excavated or filled
area prior to the return of the Temporary Clay Easement to Heise.
9.1 .3 OUALITY OF FILL MATERIAL. The soil which is
used as fill mater~al by the District to replace the Clay Material which is
removed from the Temporary Clay Easement shall be of the best quality available
on the lands of the parties (not to ~nc]ude so~ls of the OPHIR Ser~es) and in no
event shall such soil be of a quality which will limit the future agricultural
production capabilities of the excavated areas ("Fill Material", hereinafter).
The Fill Material will be of the Calpine series, if possible. Heise shall
approve all Fill Material.
9.1 .4 REMOVAL OF CLAY MATERIAL. Specifications and
plans will be developed by Soil Conservation Service, Minden, Nevada, and
approved by the District, setting forth for Heise the depth and area from which
the Clay Material will be removed ("Clay Removal Plan", hereinafter). The Clay
Removal Plan shall also consider the economic requirements of the D~strict.
Upon approval of the Clay Removal Plan by the parties, such plan shall govern
the removal of the Clay Material from the lands of Heise.
9.1 .5 FILL MATERIAL RETURNED TO HEISE. The District
shall deposit Fill Material at locations in, or near, the Temporary C]ay
Easement to depths specified by the Farm Plan. The volume of Fi]] Material so
deposited shall be equal the volume of Clay Material removed by the District.
9.1 .6 ELEVATIONS AND GRADES. The surface elevation
and grades of the lands of the Temporary Clay Easement which are excavated by
the District will be caused by the District, or its contractors, to correspond
within 2 inches of the grades specified in the Clay Removal Plan.
9.1 .7 UNFORESEEN CIRCUMSTANCES. Heise has provided
the bistrict with access to the Temporary Clay Easement for the purpose of
excavation of test holes to determine the suitability of the area for the
purposes intended by the District. Should any unforeseen circumstances result
in the inability of the District to obtain the volume of Clay Material provided
in paragraph 2 hereof, no reduction will be made to the consideration to be paid
by the District to Heise as provided in paragraph 3 hereof.
9.1.8 RESTORATION OF EASEMENT. Considerable expense
and time will be required to return the area of the Temporary Clay Easement to
economic agricultural production. Heise shall, for the consideration provided
in paragraph 3.1 hereof, be responsible for all such restoration costs except as
provided in paragraph 9.1.1 thru 9.1.6 hereof.
Page 19
9.2 TEMPORARY CONSTRUCTION ROAD EASEMENT. The D~str~ct
shall, prior to ut~lization of the Temporary Construction Road Easement for
transportation of Clay Materials cause such easement to be ~mproved as provided
in paragraph 8.5 hereof.
9.3 TERM OF USE. The per~od of use by the District of the
Temporary Easements shall correspond to the annual grazing season, and
therefore, the first per~od shall commence on November 1, 1983 and shall
continue until October 31, 1984, the period of use may be extended for an
additional 12 month period provided Heise is notified of such extension prior to
August 31, 1984. The period of use of these Temporary Easements may be extended
(more than two seasons) provided the District shall compensate Hetse for such
extended period of use as provided in paragraph 3.2 hereof.
10. PURCHASE PRICE NEGOTIATIONS.
shall be determined as follows:
The Property Purchase Pri ce
10.1 HEISE OFFER. Heise
District which is set forth in paragraph
execution of this Agreement by Heise.
has submitted an offer to the
3.3 hereof and is effective upon
10.2 DISTRICT OFFER. The District shall, on or before 5:00
p.m. on May 23, 1983, inform Heise as to the Property Purchase Price which it
would propose to pay Heise for the Heise Property ("District Offer",
hereinafter).
10.3 PRICE NEGOTIATIONS. Upon receipt of the District
Offer, Heise shall have until 12:00 p.m. on May 24, 1983 to inform the District
of its acceptance or rejection of such offer. In the event that Heise shall
elect to reject the District Offer, the parties shall have until 4.00 p.m. on
May 31, 1983 ("Price Negotiation Period") to negotiate a Property Purchase Price
which is acceptable to both parties. In the event that no agreement as to the
Property Purchase Price is reached during the Price Negotiation Period, the
District shall commence Eminent Domain Proceedings pursuant to paragraph 10.4 to
acquire any and all parcels or easements for which no agreement as to the
purchase price is reached. Escrow shall close as prescribed herein as to any
parcel or easement as to which there is agreement as to the Property Purchase
Price.
10.4 EMINENT DOMAIN DETERMINATION OF PROPERTY PURCHASE PRICE.
The Eminent Domain Proceedings commenced by District under paragraph 10.3 to
acquire any parcel or easement shall be governed by Title 7, Eminent Domain Law
of the Code of Civil Procedure of California commencing at Section 1230.010 of
said code. The District shall, no later then its next Board of directors
regularly scheduled meeting following the date on which the conditions of
paragraph 13 have been met or waived by the District, comply with the provisions
of Chapter 4, Article 2 of Title 7 of said Code by adopting a Resolution of
Necessity at the earliest time permitted after notice and hearing pursuant to
Section 1245.235. Heise shall not seek Judicial Review thereof pursuant to
Setion 1245.255 of said Code. The District, after compliance with said ffnapter
4, shall commence eminent domain proceedings within f~ve days after adopting
said Resolution of Necessity pursuant to Chapter 5, Title 7, of said Code
commencing at Section 1250.010 by filing a complaint and shall contemporaneously
notify Heise pursuant to paragraph 19 and furnish a copy of the complaint and
summons. Hetse shall thereupon cause to be filed an answer or answers, placing
Page 20
'only In issue the "fair market value'°~ of each parcel and easement for such
parcel or easement's "highest and best use" as of the date of f~lJng of the
complaint. Thereafter the "fair market value" shall be determined as provided
in said Title 7, Eminent Domain Law, and each party shall be entitled to the
benefit of said law in the determination of said "fair market value" unless
otherwise provided in this Agreement. The provfstons of this paragraph 10.4
shall not preclude the D~strict from commencing Eminent Domain Proceedings prior
to the date on which the conditions of paragraph 13 have been met or waived and
receiving an Order For Possession effective upon Close of Escrow, pursuant to
paragraph 10.4.3. If any Eminent Domain proceedings are commenced pursuant to
this agreement and the conditions of paragraph 13 are not met or waived, the
DiStrict may proceed under Eminent Domain law, but w~thout the benefit of any
provisions of this agreement.
10.4.1 PROCEDURAL DELAYS. Neither party shall request
continuances of hearing on motions or trial. The parties shall bring all
procedural matters permitted under said T~tle 7, Eminent Domain Law, by motion
before the Court with only a m~nimum notice of 15 days, wa~vin~ extensions of
time provided by Section 1013 of the Code of Civil Procedure for mail service.
10.4.2 LITIGATION EXPENSES. Heise shall specifically be
entitled to "Costs Allowed" pursuant to Section 1250.410 of said Code of C~vtl
Procedure and "Defendant's Costs" pursuant to Section 1268.710 of said Code of
Civil Procedure.
10.4.3 POSSESSION PRIOR TO JUDGMENT. The D~strJct shall be
entitled to possession prior to judgment of any parcel or easement subject of
the Eminent Domain Proceeding pursuant to Chapter 6, Article 3, of said Title 7,
commencing at Section 1255.410 of said Code of Civil Procedure and He~se shall
stipulate to said possession within ten days after notice therefore by District,
providing District has complied with the provisions of paragraph 10.4.4.
10.4.4 DEPOSIT AND WITHDRAWAL OF PROBABLE COMPENSATION.
D~strict shall within ten days after the filing of the answer or answers by
Heise, petition the Court for an order of immediate possession. The District
shall then deposit in court its highest appraisal amount for each parcel or
easement contemporaneously with its petition. Heise, w~thin ten days
thereafter, shall move the Court for w~thdrawal of deposit. The District shall
further stipulate to the withdrawal of said deposit so long as any deed of trust
holders or lien holders claims are provided for.
11. HEISE GRAZING RIGHTS. During the per~od of use by the Distr~ct
of the Temporary Clay Easement, Heise shall retain the right to irrigate and
graze any portion of such easement which does not interfere w~th the District's
right to use of such easement. Heise shall be responsible for livestock. Heise
shall retain the right to graze the Harvey Place Parcel until October 15, 1983.
12. PLANS AND SURVEYS
12.1 PLANS. The District's obligation hereunder is to
insure that waters which are to be used by He~se can be reasonably expected to
be delivered to Heise for an adequate per~od of t~me. The part~es shall have
the right of review the following plans as they are prepared.
12.1.1 CONSTRUCTION ON PERMANENT EASEMENTS Plans for
any construction to be accomplished by the District on the Flood Control
Page 21
Easement,
Snowshoe
Drainage.
Temporary Construction Road Easement, Road Easement, Mtlltch Ditch,
Thompson No. 1 Ditch, Indian Creek Canal, Heise Pipeline and Schwake
12.1 .2
CONVEYANCE, DIVERSION, AND DISTRIBUTION
STRUCTURES All District plans for the construction or modification of water
conveyance, diversion, and distribution structures which affect waters which are
delivered to Heise.
12.2 SURVEYS The parties shall have the right to review
and approval of the follo~ing surveys as they are prepared.
12.2.1 BOUNDARY SURVEYS. The District will cause to
be prepared, and bear the cost of, surveys to be performed by a qualified land
surveyor licensed in the State of California acceptable to the parties, which
will allow the preparation for recording of metes and bounds descriptions of all
of the Heise Property being conveyed to the District with the exception of the
Harvey Place Parcel. These properties and easements shall be monumented at
intervals as required by State Law as administered by Alpine County.
12.2.2 FARM PLAN & CLAY REMOVAL PLAN. The District
is in need of the Farm Plan and the Clay Removal Plan in order to complete the
District's plans and specifications for the Alpine County Land Application
Facilities, which plans shall be prepared as described elsewhere in this
agreement.
13. APPROVAL CONDITIONS. This agreement is conditioned upon the
completion of the following items prior to Close of Escrow:
13.1 DISTRICT CONDITIONS. The following conditions are
solely for the benefit of the District. The District may waive such condltions
upon written notice delivered to Heise prior to Close of Escrow. No such waiver
would be required from Heise for the Escrow to close as herein provided.
13.1 .! ALPINE COUNTY CONTRACT AMENDMENT. The County
of Alpine ("County", hereinafter) and the District must execute a form of the
Second Amendment to the Water Agency Agreement between the Dlstrict and the
County which provides for the completion and operation of the District's Project
in Alpine County.
13.1 .2 DISTRICT ORDINANCE. The District shall execute
this Agreement pursuant to ordinance and such ordinance must become effective.
13.1.3 ENVIRONMENTAL IMPACT REPORT. The Supplemental
Environmental Impact Report for the District's Project shall not be legally
challenged within 33 days after a "notice of completion" is filed.
13.1 .4 LAHONTAN GENERAL PLAN. The California Regional
Water Quality Control Board, Lahontan Region, must have adopted its Amended
Basin Plan which allows the implementation of the District's Project.
13.1.5 ARCHEOLOGICAL INVESTIGATION. Archeological
investigation of the Harvey Place Parcel must be completed.
13.1.6 GRANT OFFER. The District shall have received
its Federal and State Grant offers.
Page 22
13.2 JOINT CONDITION. The approval by the U.S. District
Court, Reno, Nevada in the United States v. A]pine Land & Reservoir Co. of a
motion or motions amending the decree previously issued as required to provide
for the fresh water provisions of paragraph 5 hereof. The escrow provided for
herein may not close unless this condition is satisfied or is waived by each
party to this Agreement.
14. PROTECTION OF ENVIRONMENT Heise has been, and intends to
continue to be, a long term owner of property in the County. The preservation
of the environment of the Diamond Valley area of the County is of great
importance to the property interests of Heise. Heise presently believes that
the District's Project can be constructed and operated in a manner which will
have no adverse effect upon the environment of the County, and may, if properly
planned, constructed and operated, have a very significant beneficial impact
upon County. Heise reserves the following rights, however:
14.1 REVIEW OF ENVIRONMENTAL IMPACT REPORT. HeJse will be
supplied with a copy of all Preliminary and Final Environmental Impact Reports
for the District's Project which reports must contain all information relative
to the potential adverse impact upon the Diamond Valley environment of the
District's Project.
14.2 RESERVATION OF CLAIMS. Heise is not waiving any
claims which it may have at law or equity as a result of the District's Project
due to the storage of reclaimed water on the Harvey Place Parcel as well as the
conveyance of such rec]aimed water across Heise Diamond Valley lands, except
that Heise is waiving claims for damages, except for the provisions of paragraph
6 which are related to damages, resulting from the irrigation application of
reclaimed water on its lands pursuant to the provisions of paragraph 6, hereof.
14.3 MONITORING OF DIAMOND VALLEY LANDS. The D~strict will
provide a monitoring system which shall include the periodic (no ]ess then 4
times per year) sampling and detailed analysis of ground water and soils at two
(2) loca~i,~ns on Heise's lands in Diamond Valley in accordance with the
procedure~ set forth in the "Alpine County Monitoring Program for Land
Applicatio~ of Treated Wastewater" dated December 1980. One location will be
the present domestic well at the ranch yard, the second location will be in the
area of the Snowshoe Thompson Monument and will require that a well to be
drilled by the District to a depth of no more then 50 feet which will be used to
sample ground water. Soil samples will be taken in the area of the well
monitoring ]ocations. The information developed will be supplied to Heise at
quarterly intervals. District shall have reasonable access to lands of He~se
for performance of the requirements hereof.
15. ESCROW PROVISIONS This transaction shall close through escrow
to be established with Inter-County Title Co., 596 Main Street, Placervflle,
California 95667 (telephone - (916) 622-3135) ("Escrow Holder", hereinafter),
pursuant to escrow instructions on such company's standard form not inconsistent
with this Agreement ("Escrow Instructions"). If any such inconsistency does
survive, then the terms and conditions of this Agreement shall govern.
15.1 DEPOSITS. Within 7 days of the execution of this
Agreement by the District and Heise, Escrow Instructions which have been duly
executed by the parties hereto will be deposited with the Escrow Holder. The
District will also deposit cash, or an interest bearing certificate of deposit
Page 23
'in the name of Escrow Holder, in the amount of two hundred thousand dollars
($200,000.00) which will be held by the Escrow Ho]der for d~sbursal tn
accordance w~th the Escrow Instructions and th~s Agreement. On or before the
Close of Escrow the D~strict shall deposit such additional funds w~th Escrow
Holder as are required to fulfill its obligations hereunder.
15.2 PRORATIONS/CLOSE OF ESCROW. Ail prorations shall be as
of the Close of Escrow which shall be on or before June 15, 1983 ("Close of
Escrow", herein). In the event the Close of Escrow is after June 15, 1983 as
provided herein, all prorations shall be as of June 15, 1983. In the event that
the Escrow is not tn a condition to close on or before June 15, 1983, any party
who shall have fully complied w~th the terms and cond~tions of the Escrow and
this Agreement, except as to the conditions of paragraph 13 hereof, may, at its
option, declare such agreement and escrow terminated, and of no force or effect,
and all moneys and documents deposited in the Escrow by such party shall be
promptly released to such party, who shall have no liability to the other party,
hereunder, or at all.
15.2.1 EXTENSION OF CLOSE OF ESCROW. In the event
that the escrow contemplated herein can not close as provided here~n due to
failure of the D~strict to obtain approvals required pursuant to paragraph 13
hereof, the District may extend the Close of Escrow until September 30, 1983
upon payment of the amount of forty-five thousand dollars ($45,000.00) to He~se
outside of escrow prior to 5:00 on June 15, 1983, which amount shall not apply
to any sums due to Heise pursuant hereto.
15.3 POSSESSION. The Distr~ct shall have the right to
possession of the Heise Property upon the Close of Escrow. Heise shall retain
the right to graze the Harvey Place Parcel until October 15, 1983.
15.4 ESCROW COSTS. The parties hereto shall each pay
one-half (1/2) of Escrow Holder's fees and costs.
15.5 TITLE POLICY. Heise shall cause Escrow Holder to
promptly issue preliminary reports of t~tle to the Heise Property for District's
review. Heise shall pay the cost of a standard form CLTA policy of title
insurance in the amount of the purchase price which shall be issued by Escrow
in favor of District insuring title to the Heise Property in the D~strict
only to exceptions to title described in paragraph 4, here~n. Such
shall be issued as to only one-half (1/2) interest in the Harvey Place
Ho]der
subject
policy
Parcel.
15.6 CONDEMNATION ACTION. In the event of a condemnation
action as provided in paragraph 10.4 hereof no escrow w~ll be required and no
title insurance will be issued for the properties which are the subject of the
Condemnation Action.
16. DEVELOPMENT ON BLM LANDS. The parties wish to prevent any
development of lands which are presently owned by the Federal Bureau of Land
Management ("BLM", herein) which are described as the East one-half of Lot 14
and all of Lots 2, 15, and 16 of Section 4, Township 10 North, Range 20 East,
M.D.B.&M., County of Alpine, State of California ("BLM Lands", hereinafter).
The District will make every effort to acquire the BLM Lands, and it will not
allow any residential or commercial development of such lands.
17. TIME OF THE ESSENCE. Time is of the essence for this
Page 24
'Agreement.
18. GOVERNING LAW All aspects of the transaction hereby
contemplated shall be governed by the laws of the State of California.
19. NOTICES Any notices required to be delfvered to the parties
hereto pursuant to this Agreement shall be delivered Jn person, or by Certified
Mall, postage prepaid, as follows:
HEISE Clarence C. Burr, Jr., President
F. Hetse Land & Livestock Company
Post Office Box 941
Minden, Nevada 89423
DISTRICT
South Tahoe Public Utility Distr~ct
Post Office Box AU
South Lake Tahoe, California 95705
20. LEGAL FEES In the event any dispute w~th respect to this
transaction requires resort to judicial proceedings, the prevailing party shall
be entitled to reasonable attorney's fees in connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed th~s Agreement to
be effective as of the date hereinabove first written.
HEISE
F. Heise Land & Livestock Company,
a Nevada corporation
by ~ ~ ~ ~, ~. . ~ ' -
Clarence C. Burr, Jr., Pres.
DISTRICT
South Tahoe Public Utility D~strict
pr~'dent, Board off, rectors
ATTEST:
· MaYy' D./Ambrose, Clerk 'ahd Ex-
Officid Secretary to the
Board of Directors
APPROVED AS TO FORM:
eidman, Attorney
Page 25
EXHIBIT "A"
MAP OF DIAMOND VALLEY
Exhibit "A" Page 1
ICR GRAPH
This Exhibit "B" to that Agreement dated May 10, 1983 by and between F.
Heise Land & Livestock Company, a Nevada corporation ("Heise"), and the South
Tahoe Public Utility District ("District") is intended to set forth in principle
the application and inter-relationship of the factors which will be utilized by
the District to determine the storage capacity in Indian Creek Reservoir which
is available for additional water from HeJse as well as the water which Js
stored in Indian Creek Reservoir which is available for use by HeJse in
irrigation. In the event of conflict between the ICR Graph and the written
provisions of the Agreement, the Agreement shall prevail.
INDIAN CREEK RESERVOIR
HEISE STORAGE CAPACITY
Storage Capacity
(acre feet)
~--Reservo~r Storage Capacity
3 000 . ·
,800 ...........................................................
2 Maximum
· NO SPILL SAFETY RESERVE · ·
............... Discharge
2,600 ............................. . . Rare
..~ ........ i ........ rProjected Evaporative Loss~
2,200 . . ~~ Reserve Reduction Curve
2 000 . · .~.
' H E I S E S T 0 R A G E'~A P A C I T Y
1800 ...................... . ..............
' . (Subject to t~e v p
~ ,600 ..................................... .: ......
· ~-_---."Minimum Pool _
1 ,515
1 ,400 ............................................................
NORMAL YEAR FISH & RECREATIONAL STORAGE
1 ,200 ...........................................................
1,050 . · . . "Dry Year Minimum Pool"· ·
EAR FISH & RECR
7/1 8/1
Irrigation Season
10/1
Staff
Level
56
55
53
52
51
49
48
46
45
44
42
40
37
Exhibit "B" Page 1
AFFIDAVIT ~
ORDINANCE NO.
_ ~ ~ING
349
STATE OF CALIFORNIA
COUNTY OF EL DORADO
)
)ss
)
BOB E. EPPLER.,being first duly sworn,
deposes and says:
That for and on behalf of the Clerk and ex-
Officio Secretary of the SOUTH TAHOE PUBLIC UTILITY DISTRICT
affiant posted copies of ORDINANCE NO. 349 in form attached
hereto and by reference made a part hereof, in three public
places in the District, as follows:
1. City Of SouthALake Tahoe
Administration Bldg.
South Lake Tahoe, Ca.
2. Bijou Post Office Station
South Lake Tahoe, California
3. Tahoe Valley Post Office Station
South Lake Tahoe, California
That said posting was completed on the ~2~/~/
day of /~y · 1983
BOB--E. EPPLF~/ v _
Subscribe/ and sworn to before me this
'~ot~r~l~uDllc ln~and for the County of
E1 D ado, State of California.
My Commission Expires
SOUTH TAHOE PUBLIC UTILITY DISTRICT
Sewer. 1950. Water
PRESIDENT
JAMES R JONES
P.O. Box AU South Lake Tahoe, California 95705
1275 Meadow Crest Drive
A PUBLIC AGENCY
Phone (916) 544-6474
DIRECTORS
WALTER "NEAL" OLSON
LORRENE KASHUBA
MICKEY MADDEN
dOHN WYNN
May 24, 1983
Tahoe Daily Tribune
PO BOX 1358
So. Lake Tahoe, CA 95705
Attention: Donna
Gentlemen:
Please publish the attached Ordinance No. 349, on the 1st
of JUNE 1983, and also send two (2) copies of Affidavit
of Publication for same.
Thank you.
Very truly yours,
SOUTH TAHOE PUBLIC UTILITY DISTRICT
Mary D. Ambrose
Clerk of Board
mda
Encl. (1)