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Home My WebLink AboutC08-008ANIEPv ~EIJr EASEMENT AG~EEl0~1ENT THIS AMENDED EASEMENT AGREEMENT is made and entered into this ~ day of ?00~ by and betvaPer. BRUCE C. EATON, an individual, whose address is 21007 Marble Rd., Eckert, C(~ ~111R and fTRIMSHAV~' '~,~°~'1'ON, LLC, a Colorado Limited Liability Company, whose address is 6695 Turtlemound Road, Unit 302, New Smyrna Beach, FL 32169 (collectively hereinafter "Eaton"), and Eagle County, a governmental entity, as distinct from the general public, acting by and through the Board of County Commissioners, having an address of 500 Broadway, Eagle, CO 81631-0850 (hereinafter "County"). RECrra-rs A. Eaton is the owner of that portion of Parcel B, as shown on the Amended Final Plat of Eaton Ranch, recorded August 30, 2005, at Reception Nn 9?_7974 of the real estate records of the Clerk and Recorder of Eag:. C aunty, Colorado lying ^~. ~t: of the centerline of the Eagle River (hereinafter the "Eaton North Parcel"). B. County is the owner of Parcel A, as shown on the mended Finial Plat of Eaton Ranch, recorded August 30, 2005, at Reception No. 927914 of the real estate records of the Clerk and Recorder of Eagle County, Colorado lying south of the centerline of the Eagle River (hereinafter the "County Property''). C. The Parties entered into an Easement Agreement dated September 13, 2005 ("2005 Agreement") concerning the subject of this Amended Easement Agreement ("Amended Agreement"), recorded at Rer_ep±~:on ^:c~. '• G~%"? r:;~~~ ~ ;ount~- Clerk and Recorder's records, and changed circumstances warrau< <;ie :':.dlics' re>>lr::_.:ant of the 2005 Agreement with this Amended Agreement. Specifically the Parties have agreed on an operation for delivery of a aton's J.M. Dodd Ditch water rights, described below, across the County Property to the point Amended Easement Agreement Bruce C. Eaton and Crimshaw-Eaton, LLC/ Board of Coamty Commissioners, Eagle County Page 2 of 14 of connection with an existing or to-be-repaired or replaced siphon (the "Eaton Siphon") owned and operated by Eaton for delivery of water across the Eagle River for irrigation of the Eaton North Parcel. Such operation will involve the construction of a splitter box ("Splitter Box") on the County Property to divide the Parties' respective water right diversion interests, the construction of a pipeline across the County Property to deliver water to the Eaton Siphon (the "Eaton Pipeline"), and the construction of a lateral or laterals on the County Property to distribute the County's portion of J.M. Dodd Ditch water rights and the waste flows from other up-ditch users. D. Contemporaneously with execution of their 2005 Agreement, County executed a "Deed of Conservation Easement -Eaton Ranch" that limits County's rights to develop the County Property. The Conservation Easement is and will continue to be subordinate to this Amended Agreement regardless of the order in which the documents may be recorded. E. Eaton and County are owners and users of interests in 1.6 cubic feet per second ("cfs") in the Hyde and Beck Enlargement and Extension of the J.M. Dodd Ditch out of Lake Creek, being Ditch No. 31A in Water District No. 37, decreed for 3.9 c.f.s. in Civil Action 417 with an appropriation date of May 1, 1894, Priority No. 202 and 2.54 cfs of the 6.2 cfs of the J.M. Dodd Ditch, Second Enlargement, Priority No. 387, decreed in Civil Action 963 with an appropriation date of May 1, 1900. Third parties also own interests in water rights decreed to the J.M. Dodd Ditch structure. Amended Easement Agreement Brake C. Eaton and Grimshaw-Eaton, LLCI Board of County Commissioners, Eagle County Page 3 of 14 F. The Eaton and County interests in those water rights are at the end of the main Ditch into and through the "Lateral", which is defined in this Amended Agreement as that portion of the J.M. Dodd Ditch. Section 3, as defined in the Operating Agreement referenced in Recital I. below that conveys and delivers water to the Eaton North Parcel and the County Property. The Lateral includes all laterals and attendant water right structures through the County Property and to the Eaton North Parcel, but does not include the other portions of the J.M. Dodd Ditch. G. The Parties will use the water delivered in the Lateral to the Splitter Box for irrigation of the Parties' properties. This description is not intended to limit the Parties from making application for future legal changes to the uses of their respective water rights. H. An application to change th.e point of diversion and place of use for Eaton's interest in the J.M. Dodd Ditch water rights is currently pending in the District Court for Colorado Water Division 5, Case No. 04CW45. The application in Case No. 04CW45 does not seek to change any portion of the County's interest in the J.M. Dodd Ditch water rights. Eaton desires to withdraw that Water Court application and continue to receive delivery of its interests in J.M. Dodd Ditch water rights in the manner that water has historic:~lly been delivered to the Eaton North Parcel as described in paragraph 3 below. I. The J.M. Dodd Ditch Operating Agreement (hereinafter "Operating Agreement") was executed by the owners of all interests in the J.M. Dodd Ditch structure and water rights on October 20, 2004, including Eaton, who is the County's predecessor-in-interest. The Operating Amended Easement Agreement Bruce C. Eaton and Crimshaw-Eaton, LLC/ Board of County Commissioners, Eagle Cou~ity Page 4 of 14 Agreement is recorded in the Office of the Eagle County Clerk and Recorder's at Reception No. 897100 and governs the operation of the main J.M. Dodd Ditch structure. J. The Parties desire to set forth the terms and conditions of their agreement concerning management of the Lateral, the Splitter Box, and the Eaton Pipeline and the use, operation, maintenance, replacement, improvement and repair thereof and associated structures and the Parties' collective obligations as they pertain to other users of the J.M. Dodd Ditch water rights under the Operating Agreement. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the Parties agree as follows: AGREEMENT 1. Recitals. The above Recitals are true and correct and are incorporated into this Amended Agreement. 1. Water Rights Ownership. The Parties agree that County owns an undivided seventy percent (70%) interest and Eaton awns an undivided thirty percent (30%) interest in the water rights described in Recital E, above. The division of the Parties' interests in the water rights shall be measured at the Lateral's headgate. 2. Easement. County herewith confirms, grants and conveys to Eaton anon-exclusive easement for the Splitter Box, the Eaton Pipeline, and that portion of the Lateral located on the County Property up-ditch from the Splitter Box and the appurtenant water structures, including measuring devices, siphons and other facilities used to transport Eaton's reserved agricultural Amended Easement Agreement Brace C. Eaton and Grimshaw-Eaton, LLCI Board of County Commissioners, Eagle County Page 5 of 14 water through the Lateral and Eaton Pipeline over and across County's Property by gravity flow to the Eaton North Parcel. In the event Eaton determines a survey is necessary to more specifically define the easement, Eaton shall be responsible for the cost of the survey. In the event County determines a survey is necessary to more specifically define the easement, County shall be responsible for the cost of the survey. 3. Case 04CW045. Within 30 days after the full execution of this Agreement, Eaton shall move to withdraw its application pending in Case No. 04CW045, District Court for Water Division No. 5, and, upon the Water Court's approval of that withdrawal, Eaton shall provide the County with timely notice thereof. County agrees, but does not represent or warrant, that Eaton shall have the right to irrigate approximately fifteen (15) acres of land in the Eaton North Parcel using the J.M. Dodd Ditch water rights ~~nd may irrigate any of Eaton's lands using any other water rights allowed under a Water Court decree or approved Substitute Water Supply Plan; provided, however, that the other water rights may not be carried through the Lateral. 4. Lateral Operation, Maintenance and Repair. The Parties agree that for purposes of sharing the water flowing through the Lateral, neither of the Parties shall be entitled to any greater priority in use of any one water right than any other, and that the physical water available at the Splitter Box shall be shared on a pro-rata basis according to the interests described in Paragraph 2, above. Amended Easement Agreement Bruce C. Eaton and Crimshaw-Eaton, LLCI Board of County Commissioners, Eagle County Page 6 of 14 The foregoing notwithstanding, to enhance the practical use and application of the Water Rights for maximum efficiency, the Parties may agree to discuss and explore a reasonable plan for rotation of use co that each Party will be allowed to irrigate with more than their proportionate flow of water for limited periods of time, calculated to maintain the overall total use of the Water Rights at 70% by the County and 30% by Eaton. The County shall be responsible for the construction, maintenance, reconstruction and cleaning of the Eaton Pipeline as it crosses the County Property during such times when Eaton actually diverts and uses water diverted through the Lateral and pipeline to Eaton's North Parcel. The Parties shall be responsible for the construction, maintenance, repair, reconstruction and cleaning of the Splitter Box and portion of the Lateral up-ditch therefrom proportionate to their interests in J.M. Dodd Ditch water rights, i.e. 70% by the County and 30% by Eaton. Eaton shall be responsible for engineering, design, construction, installation, maintenance, repair and/or reconstruction of the Eaton Siphon. Eaton shall also bear any and all costs associated with fencing off the access to the north end of the Eaton Siphon as Eaton may determine to be necessary. The County will restrict public access to the' south end of the Eaton siphon. The County shall bear any and all costs associated with fencing and elimination of public access to the south end of the Eaton siphon. Eaton shall coordinate with the County on the design and construction of the Eaton Siphon. Eaton shall design the pipe suspension structure for the Eaton Siphon so as to restrict Amended Easement Agreement Bruce C. Eaton and Grimshaw-Eaton, LLC/ Board of County Commissioners, Eagle County Page 7 of 14 unauthorized access upon, over and across the Eaton Siphon. Eaton may use an engineering or construction firm of Eaton's choice to design and build the Eaton Siphon. At Eaton's discretion, Eaton may enter into a contract with the County's construction firm for construction repair and/or reconstruction of any part of the Eaton siphon. The Parties shall exercise reasonable care in their use of the properties adjacent to the Lateral and activities affecting the operation of the Lateral in order to avoid interference with the other Party's right to receive wafer from the Lateral. The Parties agree their use of their respective water rights in the Lateral shall be subject to the applicable terms and limitations of the Decrees of Division 5 Water Court in Cases C.A. 417, C.A. y~~3 ~t:u any suh~e~auent c~se~. Eaton shall not have access across the County's Property to the Eaton Pipeline unless there is a reasonable need to address an operational or maintenance problem therewith on County's Property. A. Notwithstanding the provisions above to the contrary, in the event of an emergency, any Party shall be entitled to proceed with such reasonable and necessary work as may be required and, if appropriate, obtain reimbursement from the other Party for costs incurred. H. At the request of either Party, a meeting of the Parties shall be held at a time and place mutually agreed upon to consider whether to perform maintenance or repairs or Amended Easement Agreement Bruce C. Eaton and Crimshaw-Eaton, LLC/ Board of County Commissioners, Eagle County Page 8 of 14 replacements or improvements of the Lateral, the timing associated with the same, and the terms upon which the same shall be performed. 5. Lateral Relocation. The County shall, at County's expense, construct the Lateral on the County Property to the Splitter Box, the Splitter Box and the Eaton Pipeline across the County's Property from the Splitter Box to the Eaton Siphon; provided that the Eaton Pipeline shall be adequate to convey Eaton's interest in the J.M. Dodd Ditch water rights to the Eaton Siphon and the Eaton North Parcel and that the initial conversion is completed and operational by April 200y. The County shall pro•.•ide its plans for such conversion to Eaton for comment and approval at least 15 days prior to commencing the work, which approval shall not be unreasonably withheld. Eaton shall be responsible for any needed repair maintenance, or replacement of the Eaton Siphon as necessary to deliver the water from the end of Eaton Pipeline to the Eaton North Parcel. The County may relocate the Lateral on the County Property to the, Splitter Box, the Splitter Box and the Eaton Pipeline on the County Property from time to time in the future, subject to the requirements of this paragraph. In furtherance of such construction of the Eaton Pipeline and any relocations, thereof, Eaton agrees County may temporarily interrupt the flow of water to the Eaton North Parcel for no more than seven (7) days in any one month during the irrigation season while making such conversion. Notwithstanding the above, the County shall Amended Easement Agreement Bruce C. Eaton and Grimshaw-Eaton, LLC/ Board of County Commissioners, Eagle County Page 9 of 14 make its best efforts to perform any and all such work outside the historical irrigation season. 6. J.M. Dodd O ep rating_Agxeement. Except for the costs allocated to the County under subparagraph S.B and paragraph 6 above, The Parties agree that so long as Eaton carries its interest in the J.M. Dodd Ditch water rights through the Lateral and Eaton Pipeline across the County Property, Eaton shall be responsible for thirty percent (30%) of the costs assigned to Eaton under Paragraph ? of the Operating Agreement and the County shall be responsible for seventy percent (70%) of the costs. The County shall make payment for the County and Eaton's collective share of the operating costs to the appropriate party and the County shall then send an invoice to Eaton for reimbursement of Easton's share of the costs. Eaton agrees to make payment to the County within thirty (30) days of invoice. B. This Amended Agreement is not intended to alter or amend in any manner the terms of the Operating Agreement described in Recital I, above, including Eaton and/or the County's obligations with respect to the other parties to the Operating Agreement. Subparagraph 7.A., above, is intended solely to clarify Eaton and the County's obligations to each other with respect to payment of the costs assigned to Eaton in Paragraph 2 of the Operating Agreement. 7. Indemnification. Amended Easement Agreement Bruce C. Eaton and Grimshaw-Eaton, LLCI Board of County Commissioners, Eagle County Page 10 of 14 Eaton shall indemnify and hold County harmless from any and all damages, liens, claims, debts, expenses and liabilities, including but not limited to attorneys' fees and costs, which may be incurred by County arising out of the improper exercise by Eaton of Eaton's rights with respect to the Lateral and easement. Eaton shall further indemnify and hold County harmless from and against all mechanics', laborers' and materialmans' liens which may be filed against County's property as a result of Eaton's actions in connection with the construction, operation and maintenance of the Lateral or Pipeline or Eaton's use of the easement, and shall cause such liens to be released within thirty (30) days of any such lien being filed against Cowity's real property. Eaton shall further reimbiuse County for any attorneys' fees and costs that County may incur because of such lien. A. County shall indemnify and hold Eaton harmless from any and all damages, liens, claims, debts, expenses and liabilities, including but not limited to attorneys' fees and costs, which may be incurred by Eaton resulting from negligent action on the part of County causing damage t+~ the ?.ateral. Notwithstanding that, nothing contained herein waives or is intended to waive any pio9ectiuus that may be applicable to County under the Governmental Immunity Act, C.R.S. §§ 24-10-101, et seq., or any other rights, protections, immunities, defenses or limitations on liability provided by law, and subject to any applicable provisions of the Colorado Constitution and applicable laws. Amended Easement Agreement Bruce C. Eaton and Grimshaw-Eaton, LLCI Board of County Commissioners, Eagle Cou~tty Page 11 of 14 9. Remedies. In the event any Party fails or refuses to meet its obligations under the terms of this Amended Agreement, including the failure to pay that Party's share of the proportionate operational costs, any other Party may pursue such legal and equitable remedies in the District Court for Eagle County, Colorado as may be available to that Party. The prevailing Party in such litigation, as determined by the C ourt, shall he awnrdr~l its attorneys' fees and costs against the other Party. 10. Notices. All notices, requests, consents, and other communications pertaining to this Amended Agreement shall be transmitted in writing and shall be deemed duly given within 3 days of mailing, or when received by the Parties if hand-delivered, at their addresses below or any subsequent addresses provides'. to the other Party in writing: Notice to Bruce C. Eaton: Bruce C. Eaton 21007 Marble Rd. Eckert, CO 81418 Telephone: (970) 361-5297 And Grimshaw-Eaton, LLC: Grimshaw-Eaton, LLC Attn: Winifred W. Grimshaw 6695 Turtlemound Road, Unit 302 New Smyrna Beach, FL 32169 Telephone: (386) 871-8201 Fax: (435) 882-7737 Amended Easement Agreement Bruce C. Eaton and Crimshaw-Eaton, LLCI Board of County Commissioners, Eagle County Page 12 of 14 Notice to Board of County Commissioners. Ea a CountX: Board of County Commissioners, Eagle County 500 Broadway Eagle, CO 81631-0850 Telephone: (970) 328-8685 Fax: (970) With copy to: Eagle County Attorney's Office P.O. Box 850 Eagle, CO 81631 11. Supersedes 2005 Agreement. This Amended Agreement supersedes and entirely replaces the 2005 Agreement referred to in Recital C above, which 2005 Agreement is of no further force and effect. The Parties agree that they are respectively in full compliance with the terms of that 2005 Agreement as of the date of the execution of this Amended Agreement. 12. Miscellaneous. A. This Amended Agreement shall inure to the benefit of, and be binding upon, the Parties, their assigns, transferees, and successors in in:arest and shall be a covenant running with the operation and use of the J.~vl. Dodd Ditch water rights, the Eaton North Parcel and the County Property. B. To the extent the terms of this Amended Agreement conflicts with the terms of the "Deed of Conservation Easement -Eaton Ranch", this Amended Agreement shall supersede and control the terms of the "Deed of Conservation Easement -Eaton Ranch." C. This Amended Agreement may be amended from time to time by amendments made by the Parties in written form and executed in the same manner as this Amended Agreement. Amended Easement Agreement ` Bruce C. Eaton and Crimshaw-Eaton, LLC/ Board of County Commissioners, Eagle County Page 13 of 14 D. Each person executing this Amended Agreement represents and warrants that he or she has been duly authorized by their Party to execute this Amended Agreement and has authority to bind said Party to the terms and conditions hereof. This Amended Agreement shall be recorded by County in the Office of the Eagle County Clerk and Recorder within thirty (30) days of its execution. IN WITNESS WHEREOF, the Parties hereto have executed this Amended Easement Agreement on the day and year first written above. BRUCE C. EATON Bruce C. Eaton GRIMSHAW-EATON, LLC, a Colorado Limited Liability Company Winif P!d W. ~rims~iaw, Manager BOARD O OUNTY COMMISSIONERS, EAC.TLF U Y, a Colorado governmental entity ~ By: ATTEST: Menconi, Chairman By: ~ . Teak Simonton, County Clerk ACKNOWLEDGMENTS The above and foregoing instrument was acknowledged before me this ~ day of , , 200 by Bruce C. Eaton. 81E !• ~ficCARN Witness my hand and seal. ~OTA~Y POgll o0 sT~~~ of oo~o~Ais. Zooa ion ExP~tas ~. My commission expires: 9 /L -0 8' My Com~~'~~ ~ j~ Notary blic The above and foregoing instrument was acknowledged before me this t day of , 200 by Winifred W. Grimshaw as Manager of Grimshaw-Eaton, LLC. Witness my hand and seal. My commission expires: LISA N. Notary Public commission ~ DD 5711~i~ar Bortd~ t3y Natlonat Notary Assn. The above and foregoing instr i~n~ nt. e~,as a~;ktioti~, ic;dgeti ~~t `ore it a this ~~ay of ;- 200 g by Arn 1~1. Menconi as i-2as:man of the Eagle CoL~~ij board of County mmissione ~ . Witness my hand and seal. My co issie ~ ~ ~ ~ Le ~ ~~ N~CSTAR P LI Notary blic STATE OF COLORADO My Commission Expires 12/18/2010 ~', The above and foregoing instrument was acknowledged before me this day oi~,~ ~-- ~~ 200 by Teak Simonton as County Clerk of Eagle County. , Witness my hand and seal. My commission expires: ? / r~ ~~/U Nota;-' Public -P . NANCY R. WRIGHT NOTARY PUBLIC STATE OF COLORADO My Commission Expires 1y18/2010