HomeMy WebLinkAboutC87-057 Reimers/Hill water for airporte. - J( `TTE FHIL LiP 2 3 3 _ --v 'A cTy.Eczc��. e - J - 20CK.. ?AGE » 91 ! { 13 f U� AGREEMENT THIS zGREEMENT, ei, . i :, as of t1he last date written, :�elrw, b.- and between the BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, COLORADO, whose address is P. 0. Box 850, Eagle, Colorado, 81631 (hereinafter referred to as the "County") and JOHN D. REIM. RS and JULIE A. REIMERS, wnose address is 1630 Spring Creek Road, Gypsum, Colorado, and RICHARD D. HILL and CATHERINE HILL, whose address is 1610 Spring Creek Road, Gypsum, Colorado (hereinafter rete --red to as. "Owner"); rr) WITNESSETH: WHEREAS, the County is proposing the expansion of the Eagle County Airport and has identified Spring Creek as a .-)tential source of water supply therefor; and t HEREAS, Owner is the owner two parcels of land described on Exhibit "A", attached hereto 2nd incorporated herein by this reference, upon which property the County desires to construct water lines for municipal, commercial, industrial, domestic, fire protection, livestock watering, and irrigation purposes; and •WHEREAS, Owner is the owner between them of water rights in and to 0.1 c.f.s. in the Cooley L.E . No. 1 Ditch, decreed in Civi, Action No. 574 in the District Court in and for Eagle County or. February 27, 1912, for 1.0 c.f.s. for irrigation pur- poses with an appropriation of May 15, 1910; and 0.1 c.f.s. in the Johnson Ditch, decreed in Civil Action No. 294 in the District Court in and for Eagle County on December 17, 1889, for 0.8 c.f.s. for irrigation purposes with an appropriation date of April 15, 1885; and WHEREAS, the County filed in March, 1986, an application in the Water Court in and for Water Division No. 5, Colorado, for water rights for certain springs which serve as a source of supply for Spring Creek, which water rights when decreed will be junior to the water rights owned by Owner; and WHEREAS, the County desires to acquire water rights and easements from Owner in exchange for providing water service to Owner as more fully set forth herein. NOW, THEREFORE, for and in consideration of the mutual pro- mises and covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, it is hereby agreed as follows: 1. Contingencies. This Agreement is expressly contingent on the County developing a water supply system for water service to, among other things, the Eagle County Airport and for -1- surrounding uses. This Agreement shall not come into effect until and unless the County develops said system as herein pro- videc. In the event the construction of the facilities across Owner's property has not t --,n -ompleted twenty-four (24) months from the date hereof, this Agreement shall be null and void and of no further force and affect, and the County shall reconvey to Owner, the same title and in the same manner, all water rights and easements previously conveyed by Owner to the County, unless on that date the County is diligently pursuing 'construction of a water system from Spring Creek (including the adjudication of water rights thereof) , the delay is caused by the Owner, or the parties hereto agree to extend the term of this Agreement. This Agreement. is further contingent upon Owner obtaining subor- dination of any existing deeds of trust to the easements con- veyed and to be conveyed herein so as to convey merchantable title to said easements to the County. Owner shall promptly apply to his lender(s) for such subordination and notify the County as to whether such subordination has or can be obtained. The County may in its discretion waive this contingency. 2. Water Rights. Owner has, by Quit -Claim Deed of even date herewith, conveyed to the County Owner's water rights in L7 Cooley L.E. No. 1 Ditch and and Johnson Ditch. County shall, at its expense, file appropriate applications in the Water Court in and for Water Division No. 5, Colorado, to divert the full amount of said water rights at the points of diversion, places of use, and for the purposes contemplated herein. 3. Water Taps. At such time as the County develops its water system on Spring Creek as contemplated herein, the County shall allow Owner to tap onto said system for domestic water service to not more than the number of dwelling units allowed by existing zoning but, in any event, •not more than four (4) single-family dwelling units for the total property owned by the Owner and described on Exhibit "A", together with not more than 5,000 square feet of associated lawn and garden irrigation for each single-family dwelling unit, together with associated stock water uses. The Owner shall also have the right to install two (2) separate irrigation taps for sprinkler irrigation for not more than five ( 5 ) acres of pasture at each of the two proper- ties roper- ties described on Exhibit "A" (ten acres total). The County shall at its expense connect single-family dwelling units existing at the time of construction of the water system onto the system. Such units shall not be required to pay to the County any tap fees or water rates for the use of water. The right to tap onto the system of any remaining single-family dwelling units as herein granted shall be free of charge and the owner of such units shall not be_ required to pay to the County any tap fees therefor but shall pay all costs associated with connecting said units to the County's water system and shall pay all regular and special water rates for the use of water. At the time the County connects then -existing units onto the water system, it shall install a fire plug(s) within 300 feet of each unit, either on the County's transmission line or on the con- -2- necting line (in which case the connecting line shall be at least six (6) inches in diameter to the point of the plug(s). Any remaining units with the right to tan onto the County's syst,�in shall utilize tine existing plug(s) or may install other plugs at their own expense and with the County's permission. For all connections, existing and future, all County respon- sibility shall terminate at the point of connection to the County's transmission line. Each dwelling unit shall be respon- sible for all operation and maintenance from said point of con- nection to and within the dwelling unit. The County makes no warranties, express or implied, concerning defects in materials or workmanship of said connections. However, the County's water system and Owner's connections shall be constructed so as to deliver at least 70 p.s.i. to the domestic taps, 110 p.s.i. to the irrigation taps, and fire flows of at least 500 g.p.m. for two hours at the above -referenced fire plugs. Owner may purchase additional taps onto the water system and receive addi- tional water service on the same terms and conditions as any other water user, subject to existing and projected needs at and around the airport, system capacity, water availability, and then -existing zoning. All sprinkler equipment for pasture i�ri- gation shall be installed and maintained at the sole expense of ;D Owner. This right to receive water service herein granted shall C'7 not in any way bind the County to grant or deny any rezoning, subdivision or other land use approval for the use and develop- ment of Owner's property and such authority by the County is expressly reserved. No tap or right to tap shall be made or assigned for use off the property described on Exhibit "A", except with prior written approval of the Board of County Commissioners of Eagle County. Water service through said con- nection shall be metered and total water use through the connec- tion shall be limited to not more than 12,000 gallons in any one month per single family dwelling unit' served during the period October through March of each year, and 28,500 gallons in any one month per single-family dwelling unit served during the period April through September of each year. Water use for sprinkler pasture irrigation shall- not exceed 620,000 gallons per month, at each of the two properties shown on Exhibit "A", at a maximum rate of �5jj g'.p.m. at each property, during the period April through September. For any water use over the above limitations, Owner, their successors and assigns shall pay to the County the normal water rate then being charged for water use from the County's system. All water use through the County's water system shall be subject to the same rules, regu- lations and restrictions as apply generally to all other water users on the system. 4. Town of Gypsum. It is _contemplated that the County's water system may be connected to or become a part of the water system of the Town of Gypsum. In such event, any water service or flow from the County's water system to the Gypsum water system shall be subject to Owner's rights under this Agreement. 5. Construction Easement. The County will construct its water system as shown on Exhibit "B" in accordance with the -3- plans and specifications of the County. The County agrees that the facilities as constructed shall not deviate more than fifty ( 50 ) feet measured from either side of the centerline of thle proposed facilities located as shown on Exhibit "B", unless the revised location for the facilities shall first be approved in writing by Owner, which approval shall not be unreasonably with- held. Owner hereby conveys to the County a construction easement,: - which easement will exist until the water system as set forth in this Agreement is constructed and all permanent easements are conveyed by Owner to the County, as follows: A non-exclusive temporary construction easement under, over, through and across a one hundred (100) foot wide strip of land for pipeline, power lines, and access purposes,. (hereinafter referred to as the "construction easement area") lying within the property described on Exhibit "A", the centerline of which area is shown on Exhibit "B", together with the right of reasonable ingress and egress over, across and through the pro- perty described on Exhibit "A", for the purpose of r7 contructing power lines and water lines, and all appur- tenant facilities to be installed by the County. The construction easements shall be for temporary construc- tion purposes only, for the use of employees or authorized agents of the County for, by way of example, the movement and piling of dirt, the movement, access and temporary storage of construction equipment, and other activities necessary for the construction of power lines, water lines, access and appurtenant facilities. The County shall be entitled to immediate possession and use of the construction easement herein conveyed. Owner warrants that they are the owner of the land contained in the construc- tion easement area, and that they have good right and authority to grant the construction easement herein conveyed. In .the event the construction of the facilities across Owner's property has not been completed within twenty-four (24) months from the date hereof, the construction easement hereby conveyed shall nevertheless terminate on that date unless on that date the County is diligently pursuing construction of a water system from Spring Creek, the delay is caused by Owner, or the parties hereto agree to extend to term of the construction easement. Within the construction easement area, the County may remove any and all trees, brush, vegetation or any other natural obstruction, which in the reasonable opinion of the County, may be a hazard to or impair the construction or operation of the water line, access, storage tank, treatment facilities, overflow, drainage, or other equipment used by the County in connection with the easements. The County shall cooperate with Owner in attempting to minimize the removal of natural vegeta- -4- tion to the extent practicable and consistent with the alignment and nature of the various easements. All ground surfaces cut or disturbed in connection with the construction or maintenance shall be graded anu restored by appropriate methods, including vegetation to the extent reasonably practical. 6. Location of Easements. The exact location of the per- manent easement for water lines will be based on the location of the water lines as built and will consist of a twenty ( 20 ) foot wide strip, offset five (5) feet to one side and fifteen (15) feet line to the other side (as determined by the County) of the centerline of the water lines. The exact location of access shall be based upon access as built and will consist of a twenty (20) foot wide strip, ten (10) feet on either side of the cen- terline of said access. The areas of land within the boundaries of the permanent easements as set forth above shall be referred to as the "permanent easement area". At such time as the construction activities as to the water lines, access and appur- tenant facilities are completed, the County shall cause to be prepared at the County's expense an as -built survey of the water lines, appurtenant facilities and access, for the purpose of describing said easements for conveyance by Owner to the County, and shall forward one full set of such surveys with respect to the property described on Exhibit "A" to Owner, together with the appropriate easement deeds substantially in the form attached hereto as Exhibit "C". 7. Notice to Convey. At such time as the County has constructed all facilities and has completed as -built surveys as set forth in Paragraph 6, above, the County shall send written notice, signed by the County Engineer or County Attorney and sent registered mail to Owner at the address set forth above. The notice shall contain the surveys and easement deed as described in Paragraph 6above. 8. Appurtenance. Without limiting other provisions of this Agreement, all easements referred to in this Agreement shall be for the benefit of and appurtenant to the Eagle County water system and real property used in connection with said system, including without limitation the Eagle County Airport. 9. Merchantable Title. Title to the permanent easement area shall be merchantable in Owner subject only to exceptions listed in the easement deed. Owner shall execute and deliver to the County on the closing date an easement deed, substantially in the form attached hereto as Exhibit "C" and incorporated herein by this reference, conveying the permanent easements, in the permanent easement area, together with reasonable rights of access thereto, which easements shall be free and clear of all liens, charges and encumbrances, clouds and defects whatsoever, except for those matters appearing as exceptions in the deed attached hereto as Exhibit "C". Notwithstanding the foregoing, Owner (or its successors or assigns) may grant additional non- exclusive easements in and to permanent easement area, as by way -5- n C) C of example but not limitation, lines, or roadway use, provided be permitted to interfere with of its easements. for electric that any such the reasonable lines, telephone grantee shall not use by the County 10. Closing. This transaction shall be closed and delivery of deed and other closing instruments shall take place within thirty (30) days of the County's delivery to Owner of the notice provided for in Paragraph 7hereof. Closing shall take place at a time and location mutually agreed upon by the parties. At closing, Owner shall deliver to the County an executed and acknowledged easement deed or deeds as provided herein in a form substantially similar to Exhibit "C". 11. Owner's Use of Easement. Provided that it does not interfere with the County's activities in the operation of its water system, Owner may use in common with the County the construction and permanent easements areas, except to the extent such use violates any state of local law. Except as otherwise herein provided, all easements to be granted to the County hereunder are non-exclusive easements. 12. Terms Surviving Closing. To the extent necessary to carry out all of the terms and provisions hereof, all terms, obligations, agreements and rights set forth herein shall be deemed not to terminate at the date of conveyance.or necessarily merge into the various documents executed and delivered at that time. 13. Indemnification. The County hereby agrees to construct, operate and maintain its facilities in a good and workmanlike manner and shall indemnify Owner against any loss or damage to any person or property arising from the failure to so carry out, or cause to be carried out, its obligations under this Agreement. 14. Representations, Warranties and Covenants of Owner. Owner represents, warrants and covenants to the County, subject to the provisions of this Agreement, as follows: A. Owner. Owner is the sole permanent easement areas the easements (including as herein provided. owner of the construction and and has the right to convey access thereto) to the County B. Breach. The execution by Owner of this Agreement and the consummation by Owner- of the transactions con- templated herein do not and, at conveyance, will not result in a breach of any of the terms and provisions of, or constitute a default under any indenture, agreement, instrument, or obligation to which Owner is a party or by which the property described on Exhibit "A" or any portion thereof is bound. 9M C. Actions. There are no actions, suits or proceedings pending or, to the knowledge of Owner, threatened against Owner affecting the easements herein provided for, at law or in equity, before or by any federal, state, municipal or other court, governmental depart- ment, commission, board, bureau, agency or instrumen- tality, domestic or foreign. D. Easements. Prior to conveyance of the permanent ease- ments, Owner shall not create or permit to be created any further easements, leases, licenses or any other legal beneficial interest in and to the construction easement area without the prior written consent of the County, which consent shall not be unreasonably with- held. Owner shall do or cause to be done all things reasonably within its control to preserve intact and unimpaired the construction and permanent easement Areas provided for in this Agreement in favor of the County. E. Default and Termination. Time is of the essence C hereof. In the event of default .by either party, the remedies upon default are as set forth below unless otherwise provided in this Agreement. In the event of default, the non -defaulting party, at its option, shall be entitled to either: (i) terminate this Agreement and receive the return of any and all amounts paid or rights conveyed hereunder; or (ii)- treat this Agreement as being in full force and effect and obtain specific performance of this Agreement. No termination of this Agreement shall be made or action commenced with respect to an alleged breach hereof until the non - defaulting party has provided• written notice itemizing the alleged breach and providing a reasonable oppor- tunity to cure. If the non -defaulting party is suc- cessful in any action for rescission, in addition to other remedies, such party shall be entitled to a return of any and all amounts paid or property conveyed to the other party plus any and all expenses of such party in connection with the premises, including, but not limited to, reasonable attorneys' fees, reasonable engineers' fees and development costs. Upon ter- mination of this Agreement, both parties shall be released from all further obligations hereunder, except as set forth in this Paragraph. F. Assianability. The rights of any of the parties under this Agreement may be transferred, assigned or other- wise conveyed without the consent of any other party, and the terms and provisions of this Agreement shall bind and inure to the benefit of the successors in interest of all kinds of the parties. -7- C IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate originals, on the day and year set fort below. BOARD OF COUNTY COMMISSIONERS County of Eagle, Colorado DATE: By&ks���,� Chairman ATTEST: ounty Clerk DATE: DATE: DATE:l07/�G DATE: OWNERS: ATJT.IE A. REIMERS RICHARD D. HILL CATHERINE HILL I:� STATE OF COLORADO ss. County of ) The foregoing instrument was acknowledbefore me this j2r�bday of �n Guar , 19 8 7, by (1Q Y►Gt Id Voe_lcl' . as Chairman of the Eagle County Board of Commissioners, and by =pj�bnoi-ie__ hi1�iY�S r as Eagle County Clerk.. , WITNESS my hand and official seal. My Commission expires: % 7 Notary Public STATE OF COLORADO ) ss.. C County of �� ) The foregoing instrument was acknowledged before me this day of ,jam_ , 1986, by JOHN D. REIMERS. WITNESS my hand and official seal. My Commission expires: 4�&/"Vg • ;t 1 otary Publi. L? me STATE OF COLORADO ) ss. County of The foregoing instrument was acknowledged before me this day of;/�n� 1986, by JULIE A. REIMERS. WITNESS my hand and official seal. My Commission expires: 4/",1R q T % otary Publi STATE OF COLORADO ) } ss. County of The foregoing instrument was acknowledged before me this s day of ,�f�.u� , 1986, by RICHARD D. HILL. WITNESS my hand and official seal. My Commission expires :�� Notary Publi' • ;�2G3 .sxfo.0 s�a.ev -10- STATE OF COLORADO ) ) ss. County of The foregoing instrument was acknowledged before me this day of u �z �_, 1986, by CATHERINE HILL. WITNESS my hand and official seal. My Commission expires: otary Publi i • • �,��, C°v &ice 3 j -11- EXHIBIT "A" A parcel of land located in Tract 85, Township 5 South, Range 85 West of the 6th Principal Meridian, according to the Independent Resurvey dated June 20, 1922, being more par- ticularly described as follows: Beginning at a point from whence a brass cap properly marked and set for Corner Number 2 of said Tract 85 bears North 00012100" East 1839.45 feet; thence East 1325.48 feet; thence South 00°16'19" West 1150.85 feet; thence West 1324.04 feet; thence North 00012'00" East 1150.85 feet to the place of beginning. Together with an easement for the purpose of ingress and egress, forty ( 40 ) feet in width, beginning at the Northern boundary of said Tract 85 and running in a Southerly direction to Northern boundary of the subject property. County of Eagle, State of Colorado. t C. EXHIBIT "A" A parcel of land being in the northerly portion of Lot "B" in Tract 85, Township 5 South, Range 85 West of the 6th Principal Meridian, said parcel being more specifically described as follows: Beginning at the Northwest corner of said Lot "B", whence a brass cap properly marked and set for Corner 2 of said Tract 85 bears North 00012100" East 1839.45 feet; thence East 1325.48 feet to the Northeast corner of said Lot "B", thence South 00016'19" West along the easterly line of said Lot "B" 290.90 feet; thence South 66048130" West 1443.78�feet to a point on the westerly line of said Lot "B", thence North 00°12100" East along the westerly line of said Lot "B" 859.48 feet to the place of beginning. County of Eagle, State of Colorado. GD LEGAL DESCRIPTION PROPOSED WATER LINE: EASEMENT An easement for a proposed water line twenty (20) feet in width, being; Five (5) feet on the Easterly side and fifteen (15) feet on the Westerly side of a described centerl.inc,, located in Tract 85, TOW W;hih 5 South, Range 85 'rest of the Sixth Principal Meridian, Eagle County, cnlurarlo according to the Independent Resurvey of said Township and Range as approved on June 20, 1922; the centerline of said easement being more particularly described, with all bearings contained hurc'in based on a bearing of N.00012'00"E: between Corner . No. 3 of Tract 85 and Corner No. 2 of Tract. H5, both brass 'cap monuments found in place, as follow:;: Beginning at a point on the South line of Tract 85 from which Corner No. 3 of said Tract 85 bears S.89054'24"W. 867.67 feet distant; thence along said centerline the following twelve (12) courses: 1) N.43°23'01"W. 88.48 feet 2) N.27°S4'1"?";+1. 199.86 feet 3) N.32051'16"W. 297.37 feet 4) N.3804413011W. 202.86 feet 5) N.32047'42"W. 262.30 feet - 6) N.02001'53"W. 35.28 feet 7) N.09004'54"L•'. 98.30 feet 8) N.25°55',16"1•:. 97.50 feet 9) N. 22°40 ' 06"i:. 691.30 feet 10) N.0600110-17 11E. 97.80 feet 11) N.00047133"L. 393.10 feet 12) N.00018'58"W. 1238.16 feet to the point of terminus, a point on the North line of property as described in Book 253 at Page 953 of the Eagle County Records, from which said Corner No. 3 of Tract 85 bears S.10005124"W. 3511.69 feet distant and from which Corner No. 2 of Tract 85 bears N.17058'2511W. 1933.81 feet distant. Date f JK/86 /237 VC DEPT. Return Gi:�. ►:: t fizo Stepien R. Pluje}:r PLa`L22589 a .� EXHIBIT "C" THIS DEED, made this day of , 1986, between RICHARD D. HILL and CATHERINE HILL, parties of the first part, and the BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF EAGLE, COLORADO, whose address is P. 0. Box 850, Eagle, Colorado 81631, party of the second part: W I T N E S S E T H: That said parties of the first part, for and in considera- tion of Ter. Dollars and other good and valuable consideration to the said parties of the first part and in hand paid by the said party of the second part, the receipt whereof is hereby con- fessed and acknowledged, has granted, sold and conveyed and by these presents does grant, sell, and convey unto the said party of the second part, its heirs and assigns forever, the the pur- poses herein stated, the following described real property situate, lying, and being in the County of Eagle, State of OD Colorado, to wit: An easement on, under, over, through and across an area of land owned by the Grantor and described on Exhibit "A" attached hereto and incorporated herein by this reference (the "permanent easement area") for the purposes of constructing, operating, maintaining, repairing, installing, replacing, enlarging, improving, and removing water lines and power lines necessary, useful, or proper to the transportation, use and distribution of water by the Grantee, together with a non-exclusive easement for reasonable access to the permanent easement area over the pro- perty owned by the Grantor described in Exhibit "B" attached hereto and incorporated herein"by- this reference, such access easement to be for use by employees and authorized agents of the Grantee for the purpose of reasonable ingress and egress by vehicle, motor vehicle, foot 'or horseback in constructing, operating, maintaining, repairing, installing, replacing, enlarging, improving and removing said facilities. The easements herein conveyed shall be for the benefit of and appurtenant to the water system owned and operated by the Grantee and the real property used in connection with said system including, without limitation, the Eagle County Airport. The Grantee shall maintain the permanent easement. area and the Grantee's facilities in good condition and repair and shall indemnify the Grantor against- any loss or damage arising by re.ason of act or neglect of the Grantee. The Grantor hereby reserves the right to grant additional non-exclusive easements or licenses with respect to the per- manent easement area for other purposes provided that no such T other easement or license shall be granted which would interfere with the reasonable use or operation by Grantee of its facil-.- ties or the reasonanlc exercise of Grantee's right, hnrpunr;nr, unless Grantee's consent snail first be obtained. Provided Grantor does not interfere with the Grantee's activities in the operation it its water system, Grantor may use in common with the Grantee the permanent easement area, except to the extent such use violates state or local law. The Grantor reserves the full right and authority to use any and all routes over which Grantee has access easement rights hereunder. TO HAVE AND TO HOLD the said easements above described unto the said party of the second part, its successors and assigns forever, for the purposes hereinabove provided and that said parties of the first part for its successors and assigns does covenant and agree to and with the said party of the second part and its successors and assigns that at the time of the ensealing and delivery ' of these presents, it is well seized of the oer- manent easement area in fee simple and has good right, full power and authority to grant and convey the easements herein granted in the manner and in the form as aforesaid, and that the C'1 permanent easement area is free and clear of all former and other grants, bargains, sales, liens, taxes, assessments, and encumbrances of whatever kind or nature except: A 1. Reservations and exceptions contained in the United States Patents; 2. Easements and rights-of-way of record and easements and rights-of-way in use but not of record; 3. Mineral reservations by .predecessors in title and rights incident thereto; 4. General taxes for payable in ; 5. Special assessments, if any, of the Eagle County Soil Conservation District; All of the above in the records of the Clerk and Recorder of Eagle County, Colorado, and warrants title to the same. IW= O Ln IN WITNESS WHEREOF, the said parties of the first oar_ hereunto set their hams and seals as of the day and year f- rst above written. ATTEST: County Clerk GRANTOR: RICHARD D. HILL CATHERINE HILL GRANTEE: BOARD OF COUNTY COMMISSIONERS COUNTY OF -EAGLE, COLORADO By Chairman -3- STATE OF COLORADO ss County of ) The foregoing instrument was acknowledged before me his day of 1986, by RICHARD D. HILL. WITNESS my hand and official seal. My Commission expires: Notary Public STATE OF COLORADO } } rl County of } S5. L"l The foregoing instrument was acknowledged before this y day of , 1986, by CATHERINE D. HILL. me WITNESS my hand and official seal. My Commission expires: Notary Public -4- STATE OF COLORADO ) #) ss. County of The foregoing instrument day of was acknowledged e Ea le 1986' by as Chairman of thg before me this 9 County Board of Comrnissione rs ' as Eagle County Clerk. and b y WITNESS my hand and official seal. My Commission expires: Notary Public -5-