HomeMy WebLinkAboutC03-237 Chatfield & Bartholomew Ditch• i
AGREEMENT REGARDING DITCH RELOCATION
AND EASEMENT MODIFICATIONS
1. PARTIES. The parties to this Agreement are Chatfield Corners, LLC, a Colorado
limited liability company ("Chatfield") and the undersigned Owners of the Chatfield &
Bartholomew Ditch (the "Ditch Owners"). Chatfield and the Ditch Owners are
collectively referred to as the Parties.
2. RECITALS. Chatfield desires to relocate a portion of the Chatfield & Bartholomew
Ditch (the "Ditch") located on, over and across Lots 2, 3, and 4, I K BAR RANCHES,
County of Eagle, State of Colorado (the "Property"), which Property is owned by
Chatfield. Chatfield and the Ditch Owners have an ownership interest in the Ditch and
the parties own water rights that are delivered to their respective properties through the
Ditch. The Ditch Owners claim a prescriptive easement related to the Ditch on, over and
across the Property. Chatfield is suuaividing ~~e Prop~riy through the land use process
with the Town of Gypsum which will result in the entire Property being the subject of
approximately three final plats to be recorded in the official records of Eagle County,
Colorado. In connection with the subdivision of the Property and the resulting need for
the relocation of the Ditch across the Property, Chatfield desires to grant to the Ditch
Owners a new easement for the relocated ditch ("Relocated Ditch") upon the Property, in
return for the relinquishment by the Ditch Owners of the current claimed prescriptive
easement related to the Ditch. The Ditch Owners agree to the relocation of the Ditch and
the related easement subject to the terms, conditions and covenants set forth in this
Agreement.
3. GRANT OF EASEMENT. Chatfield agrees to grant an easement to the Ditch Owners
for the operation, use, maintenance, repair and replacement of the Relocated Ditch upon
the Property as will be specifically shown and reserved on the final plats for the
development of the Property and pursuant to the Easement Deed attached hereto as
Exhibit A. For purposes of illustration, the general location of the Relocated Ditch is
shown on the schematic of the Property, attached hereto as Exhibit A 1. The Ditch
Owners agree to quit claim all of their right, title and interest in and to the Property, with
the exception of the easement granted by the Easement Deed pursuant to the Quit Claim
Deed attached hereto as Exhibit B. The Easement Deed and Quit Claim Deed will be
executed by the parties respectively and, upon receipt of the Easement Deed an~ the
completion of the construction specified in Paragraph 4 hereof, the Quit Claim deed will
be delivered to Chatfield for recording at the time of the recording of the final plat for the
Property for the last phase of the development of the same or such time as when the
construction is completed, whichever is later.
4. DITCH RECONSTRUCTION. The Relocated Ditch shall be constructed by Chatfield
in accordance with the plans and specifications approved by the Ditch Owners and
attached hereto as Exhibit C (the "Plans"). It is understood that such construction will
occur in connection with the applicable phases of the development of the Property,
provided that there should be no interruption of the flow of water through the ditch
during the irrigation season.
5. INSPECTION. Upon construction of the Relocated Ditch by Chatfield, Chatfield will
have a qualified water engineer, subject to the approval of Eagle County, inspect the
Relocated Ditch and the water carried in such ditch and certify that the water provided to
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the ditch owners will be of the same quantity, and quality and delivered at the same time
as the water carried in the Ditch. In addition, the Ditch Owners shall have the
opportunity to inspect the Relocated Ditch to insure that the ditch is adequate for the
purposes of delivering water in the amounts that it has historically delivered to the Ditch
Owners and that the Relocated Ditch was constructed in accordance with the Plans and in
a workmanlike manner that will not result in the need for extra maintenance beyond that
which is normal and customary for the Ditch. In the event the Ditch Owners find that
changes are necessary in order for the Relocated Ditch to deliver the required amount of
water to the Ditch Owners, the Ditch Owners shall submit written requests for
modifications to Chatfield, and Chatfield will cause such modifications to be made. If
Chatfield objects to the requested modifications, the Parties shall diligently work to reach
a mutually agreeable resolution related to the Relocated Ditch and the requested
modifications thereto.
6. FUTURE USE OF THE RELOCATED DITCH.
6.1 Chatfield shall not make any future modifications to the Relocated Ditch
without prior written approval of the Ditch Owners. With respect to any future
modifications, Chatfield will provide plans and specifications for those
modifications to the Ditch Owners for prior approval. Construction of the
modifications will be completed in accordance with the approved plans and
specifications.
6.2 Chatfield shall only use the Relocated Ditch to carry the water rights it owns
that have been adjudicated to the Ditch. Chatfield may not use the Relocated
Ditch for the conveyance of drainage water from the Properly above the
amounts that have historically flowed into the Ditch. Chatfield may not
pollute the Ditch or place any foreign materials into the water flowing through
the Ditch.
7. MAINTENANCE. Chatfield agrees to maintain the Relocated Ditch as it exists upon
the Property. Chatfield shall assume responsibility for any new maintenance that is
necessary as a direct result of the physical modifications that have been made to the Ditch
by Chatfield. If Chatfield fails to properly maintain and/or repair any portion of the
Relocated Ditch for which it is responsible after receipt often day's notice of the need for
the same, the Ditch Owners, may, at their sole option, conduct the required maintenance
and/or repair, and Chatfield shall reimburse the Ditch Owners for their cost of the same
within thirty days after the receipt of an invoice for such costs. In the event Chatfield
fails to properly maintain the Relocated Ditch, it shall beheld liable for any loss or
damage to the Ditch Owners as a result of Chatfield's failure to maintain.
8. INTERFERENCE WITH WATER. Chatfield shall not interfere in any way with the
flow of water in the Relocated Ditch. In the event of any such interference, Chatfield
shall immediately remedy the situation and pay any damages suffered by the Ditch
Owners resulting from the interference.
9. LIABILITY AND INDEMNIFICATION. To the extent permitted bylaw, Chatfield
shall indemnify and hold harmless the Ditch Owners against claims of injury or damages
resulting from the existence or operation of the Relocated Ditch on the Property,
including construction of the Relocated Ditch, with the exception of injury or damages
resulting from the Ditch Owner's negligent or willful acts or omissions. Chatfield shall
also indemnify and hold harmless the Ditch Owners for any claims of injury or damages
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resulting from any failure of Chatfield to comply with its obligations under this
Agreement. However, the special district that will be assigned this agreement cannot
waive its sovereign immunity with respect to any claims from third parties.
10. IMMUNITIES PRESERVED. It is the express intention of the Parties that this
Agreement is not to be construed as a contractual waiver of any immunities or defenses
provided by the Colorado Governmental Immunity Act, Section 24-10-101, et seq.,
C.R.S. or other statutes or common law.
11.-TERM. This Agreement, unless modified by Court Order or written consent of the
Parties, shall be perpetual.
12. NOTICES. Any notice required or permitted by this Agreement shall be in writing and
shall be deemed to have been sufficiently given for all purposes if sent by certified or
registered mail, postage and fees prepaid, addressed to the party to whom such notice is
intended to be given at the address set forth next to the signature lines below, or at such
other address as has been previously famished in writing to the other party or parties.
Such notice shall be deemed to have been given when deposited in the US Mail.
13. WAIVER OR BREACH. The waiver by any party to this Agreement of a breach of any
term or provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by any party.
14. DEFAULT. Time is of the essence, and if any payment or any other condition,
obligation or duty is not timely made, tendered or performed by either party, the nom
defaulting party shall have the right to an action for specific performance or damages or
both.
15. RECORDATION. This Agreement shall be recorded at the cost of Chatfield and shall
be binding on any successors of the Parties. The obligations and benefits of this
Agreement shall specifically run with the property owned by Chatfield described as Lots
2, 3, and 4, Amended Plat IK Bar Ranches, according to the survey dated October 31,
1995 and recorded November 1, 1995 in Book 679 at Page 869, County of Eagle,
Colorado. The failure to record all or portions of the Plans because of their size shall not
affect this Agreement.
16. EXHiIBITS. All exhibits referred to in this Agreement are, by reference, incorporated in
the Agreement for all purposes.
17. ASSIGNMENT. This agreement is intended to be assigned to the Chatfield Comers
Metropolitan District to be formed under the laws of Colorado upon its formation. The
parties agree that this agreement maybe so assigned. Upon the assumption and
acceptance in writing by the special district of the responsibilities, obligations, liabilities
and conditions herein and acceptance of the conditions set forth herein, Chatfield shall be
relieved of and released from any and all responsibilities, obligations and liabilities set
forth herein.
18. ATTORNEY'S FEES. If any parry breaches this Agreement, the breaching party shall
pay all of the non-breaching party's reasonable attorney fees and costs related to
enforcing this Agreement whether or not legal proceedings are instituted.
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19. COUNTERPARTS. This Agreement maybe executed in several counterparts and, as so
executed, shall constitute one Agreement, binding on all the parties even though all the
parties have signed signature pages.
CHATFIELD CORNERS, LLC, a Colorado limited liability company
By: oss ra es, Managing Member
DATED: ~• l~•6 3
STATE OF COLORADO )
ss
COUNTY OF EAGLE )
The f regoing instrument was subscribed and sworn to before me this
of ~ 200 by Ross Graves as Managing Member of C~~l- ' ~e
Color limited liability company. ~.•``a c3•.. • • •.~O,y'~s~
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Witness my hand and official seal. y: '• cl
:NOT :i
My commission expires: ~ 'M ~ A q ~
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DITCH OWNER:
e,
Notary Public ~~~;•. "~ L 1 C ; ,
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'~'~~.._ A_•••••••~.AC
~chazd Mayne
912 Mayne Str et
Gypsum, Colorado 81637
970-524-7191
STATE OF COLORADO )
ss
COUNTY OF )
Date: ~,/ /~ o ~
. day
LLC, a
The foregoing instrument was subscribed and sworn to before me this ~~ day
of ~~_ 200, by Richard Mayne.
Witness my hand and officiseal.
My commission expires: ~~~~~+~~~
Notary
~~~~.J~PNNE JDy~y
NOTgA ~~
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DITCH OWNER:
By: _ C;~G~
Chris Estes
Date: %v~~ / /S°' 20/~
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STATE OF COLORADO ) ,
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COUNTY OF )
The foregoing instrument was subscribed and sworn to before me this --~ day
/~ ~,. ~
of ~~/ 4___1__ 200, by Chris Estes. a~"~~ N ~~''''~yy
PO Box 9 ;.~~`yJSPN •~ ~oyy,., .
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Gypsum, Colorado 81637 . N s
970524-7722 =' ; • N O Tq q y ~Z
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Witness my hand and official seal. s~j; ; ~@ ~ ~ C •:
My commission expires: ~~~FD •. • • • • ~._•spa~~
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Notary Public
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DITCH O ER:
By: C
Chairman, Boar of Cc
Eagle County, Colorad
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STATE OF COLORADO )
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COUNTY OF ~~ ~ )
The foregoing instrument was subscribed and sworn to before me this ~ day
of ~~~ , 200„ by '~j~~%e ~ ~~~r,~~~ ,Chairman of the Board of
Coun Commissioners, Eagle County.
County Attorney
PO BOX 850
500 Broadway O~ A R ~; o
Eagle, Colorado 81631-0850 ?' .,G~
970-328-8685 phone SC ~/CFk :.~
970-328-8699 fax ~ :, /F~~ :,
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Witness my hand and official seal. ®'~C®LO~pd~
My commission expires: ~ - ~`d ~
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DITCH OWNER:
BY~ Date: Vc- 0
for the Eagle County
School District RESOJ
STATE OF COLORADO )
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COUNTY OF )
The foregoing instrument was subscribed and sworn to before me this ~ ~ day
of ~. , 200 by ~,~~ t~~ j P ~ I(p~, as ~ ( ,l P~of the
Ea a Co School Distract RE
~ tY SOJ.
Administrative offices
PO Box 740
757 East Third Street
Eagle, CO 81631
Phone (970) 328-6321
Fax (970) 328-1024
Witness
My con?
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DITCH OWNER:
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as
for Cotton Ranch LLC
PO Box 789
Vail, Colorado 81658
970-5246100
STATE OF COLORADO )
ss
COUNTY OF ,~ J~ )
The foregoing instrument was subscribed and sworn to before me this day
of - ~~ , 2003, by ~~` ~~_
~~u{IIIHII
``.~~`~QNc1E ~~N ~~ ess my hand and official seal.
...~yJ•r1 O T A R y: commission expires:
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~~:~.'~- ~, P U B L I G.:~ Notary Public
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EXHIBIT A
EASEMENT DEED
This Easement Deed, made this day of 2003, between CHATFIELD
CORNERS, LLC, a Colorado limited liability company, whose legal address is P.O: Box 920,
Gypsum, Colorado 81637 ("Grantor") and the owners of interests in the Chatfield
Bartholomew Ditch, including without limitation, Richard Mayne, Chris Estes, the Board of
County Commissioners of Eagle County, Colorado, Eagle County School District RE SOJ, and
Cotton Ranch LLC (collectively the "Grantees").
WITNESSETH that the Grantor for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, has granted, bargained, sold, and conveyed, and
by these presents does grant, bargain, sell, and convey, and confirm unto the Grantees, their
successors and assigns forever, anon-exclusive, perpetual easement (the "Easement") over and
across the property owned by the Grantor or its successors and assigns, formerly known as Lots
2 - 4, I K Bar Ranches, Eagle County, Colorado and presently known as Chatfield Corners (the
"Easement Property"), in that location shown on the final plats for the Chatfield Corners
Subdivision, recorded in the Eagle County, Colorado official records at reception number
797170 and 821515.
No buildings or permanent structures shall be erected within the easement. Grantor or
its successors may landscape within the easement including but not limited to grass, trees,
shrub, rock or other ground covering so long as such landscaping does not unreasonably
interfere with the Grantee's use of the easement. In addition, Grantor may install normal and
reasonable ditch related structures and improvements to the extent necessary to divert its
allocated water rights from the ditch.
The Easement shall be for the operation, use, maintenance, repair and replacement of
that ditch known as the Chatfield & Bartholomew Ditch, as the same is located on the
Easement Property. The benefit of the Easement shall run with the Owners of Ditch and shall
inure to the benefit of the Grantees, their successors and assigns. The parties hereto shall be
bound by all terms and conditions set forth in that "Agreement Regarding Ditch Relocation and
Easement Modifications" entered into by and between the parties on , 2003.
IN WITNESS WHEREOF, the Grantor has executed this Deed on the date set forth
above.
CHATFIELD CORNERS, LLC,
a Colorado limited liability company
By: Ross Graves, Managing Member
Chatfield Corners, LLC. ~"
PO Box 920
Gypsum, Colorado 81637
970-524-2200
~ ~
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ~ day of
2003, by Ross Graves as Managing Member of Chatfield Corners, LLC, a
orado limited liability company. .,~~~
Witness my hand and official seal.
My commission expires: _ ~~~~ ~Q~~ ~H~f9~~e
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