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HomeMy WebLinkAboutC08-229AMENDMENT TO AGREEMENT REGARDING DITCH RELOCATION AND EASEMENT MODIFICATIONS This Amendment to Agreement Regarding Ditch Relocation and Easement Modifications is by and among CHATFIELD CORNERS, LLC, a Colorado limited liability company ("Chatfield"), D.M. Dietz, LLC, a Colorado limited liability company ("Dietz") and the undersigned Owners of the CHATFIELD & BARTHOLOMEW DITCH (the "Ditch Owners"). Chatfield, Dietz and the Ditch Owners are collectively hereinafter referred to as the "Parties" and individually as a "Party". RECITALS A. Chatfield and the Ditch Owners have entered into a certain Agreement Regarding Ditch Relocation and Easement Modifications, a copy of which is attached hereto as Exhibit "A" ("Agreement"), concerning the relocation of a portion of the Chatfield & Bartholomew Ditch (the "Ditch") located on, over and across Lots 2, 3 and 4, 1 K BAR RANCHES, County of Eagle, State of Colorado (the "Property"). B. In compliance with the Agreement, Chatfield has relocated the Ditch ("Relocated Ditch"), the general location of which was depicted on Exhibit "A-1 " of the Agreement. C. Chatfield has requested and the Ditch Owners have agreed to a further relocation of certain portions of the Ditch and to modify Exhibit "A-1" of the Agreement to comply with this relocation. D. Dietz is Chatfield's successor in interest as to a portion of the Property known as Tract C, a final Plat of Chatfield Corners, a resubdivision of Lots 2, 3 and 4, Amended Plat, 1 K BAR RANCHES, County of Eagle, State of Colorado ("Tract C"), upon which a portion of the further relocation was made. AGREEMENT NOW THEREFORE, in consideration of the above Recitals and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows: 1. Modification of Relocated Ditch. The Parties agree that portion of the Relocated Ditch located on what is referred to as Tract C of the Property, as well as additional portions of the Ditch, have been relocated and for purposes of illustration, the general location of the Relocated Ditch is shown on the schematic of the Property, attached hereto as Exhibit "A-2". To the extent of any conflict between Exhibit "A-1" attached to the Agreement and Exhibit "A-2" attached hereto, Exhibit "A-2" shall control. 2. Grant of Easement. Dietz, as successor in interest of Chatfield to Tract C, agrees to grant an easement to the Ditch Owners for the operation, use, maintenance, repair and replacement of the Relocated Ditch upon Tract C pursuant to the Clean Amend Agree Ditch Relocation 4/13/07 Page 1 of 5 Easement Deed attached to the Agreement as Exhibit "A" ("Easement Deed"). The Easement Deed attached as Exhibit "A" to the Agreement shall be modified to depict the actual location of the Relocated Ditch across Tract C, as well as, across other portions of the Property. 3. Acknowledgment. The Ditch Owners hereby acknowledge and agree that they have inspected the Relocated Ditch, that the Relocated Ditch has been completed in accordance with the Agreement as modified herein and the Ditch Owners do hereby agree to issue the quitclaim deed as provided for in the Agreement. 4. Notice Provisions. Notwithstanding the provisions of Section 7 (Maintenance) of the Agreement to the contrary, after the Agreement has been assigned to the Chatfield Corners Metropolitan District, any notice to maintain or repair the Relocated Ditch shall require at least thirty (30) days prior notice to the Chatfield Corners Metropolitan District. 5. Capitalized Terms. All capitalized terms set forth herein, unless otherwise specifically provided shall have the same meaning as provided for in the Agreement. 6. Ratification. Subject to the provisions hereof, the Agreement is hereby ratified and reapproved. CHATFIELD CORNERS, LLC, a Color ~ li itPrf liahility ro nv By:_ _ _ Title: Mana jng M ber Gate: ~ ~~ ~~ State of Colorado ) ss. County of ) The foregoing instrument was subscribed and sworn to before me this day of 2007, by , Manager of Chatfield Corners, LLC. Witness my hand and official seal. My Commission Expires: {SEAL} Notary Public D.M. DIETZ, LLC, a Colorado limited liability company By: Title: Managing Member Date: State of Colorado Clean Amend Agree Ditch Relocation 4/13/07 Page 2 of 5 ss. County of ) The foregoing instrument was subscribed and sworn to before me this day of 2007, by , Manager of D.M. Dietz, LLC. Witness my hand and official seal. My Commission Expires: {SEAL} Notary Public DITCH OWNER: Richard Mayne Date: State of Colorado ) ss. County of ) The foregoing instrument was subscribed and sworn to before me this 2007, by Richard Mayne. Witness my hand and official seal. My Commission Expires: {SEAL} day of Notary Public State of Colorado ss. County of ) The foregoing instrument was subscribed and sworn to before me this 2007, by Chris Estes. Witness my hand and official seal. My Commission Expires: {SEAL} Notary Public DITCH OWNER: Chris Estes Date: DITCH OWNER: day of Clean Amend Agree Ditch Relocation 4/13!07 Page 3 of 5 Eagle County, Colorado By: •~Chairman, Boar of County Commissioners, Eagle County, Colorado Date: State of Colorado ) ss. County of ) The foregoing instrument was subscribed and sworn to before me this day of 2007, by Witness my hand and official seal {SEAL} My Commission Expires: Notary Public DITCH OWNER: School District RE 50J State of Colorado ) ss. County of ) By: Title: Board President for the Eagle County School District RE 50J Date: The foregoing instrument was subscribed and sworn to before me this day of 2007, by Witness my hand and official seal {SEAL} My Commission Expires: Notary Public DITCH OWNER: Cotton Ranch LLC State of Colorado ) By:_ Title: Date: Clean Amend Agree Ditch Relocation 4/13/07 Page 4 of 5 ss. County of ) The foregoing instrument was subscribed and sworn to before me this day of 2007, by Witness my hand and official seal. My Commission Expires: {SEAL} Notary Public Clean Amend Agree Ditch Relocation 4/13/07 Page 5 of 5 Cr' .5 _~~ 31- S- ,;;~r 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 suuuividing ~~e Prop,;rty 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 and 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 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 Property 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 by law, 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 2 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. 1 l . TERM. This Agreement, unless modified by Court Order orwritten 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 furnished 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 non- 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. EXHIBITS. 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 Corners 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 party 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. 3 19. COUNTERPARTS. This Agreement may be 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 ?j STATE OF COLORADO ) ss COUNTY OF EAGLE ) The f regoing instrument was subscribed and sworn to before me this day of ~ 200 by Ross Graves as Managing Member of ~~~' ers LLC a Colora limited liability company. ~a. S •••.•,/py ' Witness my hand and official seal. °5J'• •'•.'yN My commission expires: ~ ~• N O T A A y :Z .~ 1n v, . ~-M...._ Notary Public ?,,;•, ~ I C ; DITCH OWNER: F O ~~----' nN~un~ ''~ COLO By' ~ Date: y /~~ ~ ~ ichard Mayne 912 Mayne Str et Gypsum, Colorado 81637 970-524-7191 STATE OF COLORADO ) ss COUNTY OF ) The foregoing instrument was subscribed and sworn to before me this ~ day of ~ 200, by Richard Mayne. ,,rug""'~++uqi,, ~~,~~`SPp1NE /O Witness my hand and ofhci~seal. • •.d My commission expires: ~~~ ~~~ ,Q 1n ;'~ N O~•-~ Y ~~u'~ . ,~ : ~~ • Notary~Public ~~ *• '• • Y~i. O~ • • • ~ •~.QQ_`rtZ 4 DITCH OWNER: BY• ~~'~'~~ ~~ Date: /~;Ir/ Chris Estes /J~ 2ai~ STATE OF COLORADO ) ss COUNTY OF _ %~I~t= ) The foregoing instrument was subscribed and sworn to before me this 9 ~ day °f -___~___ 200, by Chris Estes. PO Box 9 a~+''N'N~NE~r~i~, `,,yJgP...../Oy Gypsum, Colorado 81637 •• N O T 2NO~ 970524-7722 = g9yz .= Witness my hand and official seal. y~;:°(/e I • My commission expires: F • C.•~ ~'~ F•'•...••'~ ~~~~,, COLO~~~~ ~n~u~~ Notary Public 5 OQ ~~~ COG DITCH E/R~ : ~, x By: Chairman, Board of Co ty Commissioners Eagle County, Colorad y~ _o~~ STATE OF COLORADO ) ss COUNTY OF ~~ ) The foregoing instrument was subscribed and sworn to before me this ,~'"'~a Y of e 20(I2, by ~ ~.~ ~ ~ ~~,~~ ~ ,Chairman of the Board of County ommissioners, Eagle County. ~~- County Attorney ~ ~~r,..,~ ~ ~~ PO Box 850 ~..------ 500 Broadway ,~pR Y.?~ Eagle, Colorado 81631-0850 ,Z, ~ ~' ~~~ 970-328-8685 phone ; JANICE K. ~:n 970-328-8699 fax SCOF'IELD ~v~' ,- Witness my hand and official seal. ~q~~~paP My commission expires: ~ - Sr - ~~ ~. Notary is 6 DITCH OWNER: By' ~ ~ Date: ~. ~ for the Eagle County School District RESOD STATE OF COLORADO ) ss COUNTY OF ) The foregoing instrument was subscribed and sworn to before me this ~~~day of ~~ LLt, , 200', by s~jC~l~t.r~z c~ {1 IP ~ inn (I , as ~ ~ ,t Eagle Co ty School Distract RE SOD. r ~ i,~of the Administrative offices PO Box 740 757 East Third Street Eagle, CO 81631 Phone (970) 328-6321 Fax (970) 328-1024 Witness My corn and off ~~ ~~~ 7 DITCH OWNER: By'-r ~ o ~3 Date: as for Cotton Ranch LLC PO Box 789 `Jail, Colorado 81658 70-524-6100 STATE OF COLORADO ) ss COUNTY OF ~ . U _ ) The foregoing instrument was subscribed and sworn to before me this ~~ ` day of ~ ~~, , 2003, by ~-~1~~~ 1UI~ `````~~~aa»unw ui ,~.~~Sp.~NE ~~h' ' ness my hand and official seal. =' J: commission expires: ~~~~~~ 'y,NpTgAY•. =;'~9~ A U B L I•C;P~``_ Notary Public ., 8 EXHIBIT A EASEMENT DEED This Easement Deed, made this da of y 2003, between CHATFIELD CORNERS, LL(,, 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 ) COUNTY OF EAGLE ) ss. The foregoing instrument was acknowledged before me this ,,yyam~ ~s~~_, 2003, by Ross Graves as Managing Member of Chatfield Corne sy of orado limited liability company. , LLC, a Witness my hand and official seal. My commission expires: ~(~ Q~ Cypl~~~ ~ No 2892652_2.DOC ~~~JSp,NNE;jO •~,~ ~...., ,~~ CJ • • ' •`S'' ~4 S ~ . 2 S, .• NOTq :~ ~ ~'9y'z ~~- : ve ~ ~ C •,~ z ~ •, ,; • ,, lic 2 EXHIBIT B QUIT CLAIM DEED THIS DEED, made this day of , 2003, between the undersigned Ditch Owners of the Chatfield & Bartholomew Ditch located in Eagle County, Colorado ("Grantors"), and Chatfield Corners, LLC, a Colorado limited liability company, whose address is P.O. Box 920, Gypsum, CO 81637 ("Grantee"), WITNESSETH, that Grantors, for and in consideration of the sum of Ten Dollars and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, has remised, released, sold and QUIT CLAIMED, and by these presents does remise, release, sell and QUIT CLAIM unto the Grantee, its successors and assigns, forever, all the right, title, interest, claim and demand which the Grantors have in and to that certain real property formerly known as: Lots 2 - 4, I K Bar Ranches, County of Eagle, State of Colorado and presently known as the Chatfield Corners Subdivision as described in those final plats for the Chatfield Corners Subdivision, recorded in Eagle County Colorado official records at reception numbers 797170 & 821515 (the "Property"), including without limitation any prescriptive easement rights that may be associated with the Chatfield & Bartholomew Ditch, except for those easement rights granted to Grantors by Grantee in that document recorded as reception numbers 797170 & 821515 in the Eagle County, Colorado official records. This quit claim deed is granted to accommodate the relocation of the Chatfield & Bartholomew Ditch and is not intended to affect the water rights decreed to such ditch or the ownership interests therein in any way or manner. TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto belonging or in anywise thereunto appertaining, and all the estate, right, title, interest and claim whatsoever, of the Grantors, either in law or equity, to the only proper use, benefit and behoof of the Grantee, its successors and assigns forever. above. 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