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Home My WebLink AboutC10-078 Crown Mountain Park Easement and Well Location AgreementEASEMENT AND WELL LOCATION AGREEMENT FOR DEVELOPMENT OF ANEW MUNICIPAL WELL AT CROWN MOUNTAIN PARK PROPERTY THIS EASEMENT AND WELL LOCATION AGREEMENT FOR DEVELOPMENT OF A NEW MUNICIPAL WELL AT CROWN MOUNTAIN PARK PROPERTY (the "Agreement") is entered into this Q~ay of /~GuC~-20_, by and between the COUNTY OF EAGLE, COLORADO, acting by and through the Eagle County Board of County Commissioners, whose address is 500 Broadway, P.O. Box 850, Eagle, Colorado 81631 (the "County") and the MID VALLEY METROPOLITAN DISTRICT, a Colorado special district, whose address is 0021 Duroux Lane, Basalt, Colorado 81621 ("MVMD" or the "District"). WITNESSETH: WHEREAS, the District is a Colorado special district formed and functioning by the authority of C.R.S. § 32-1-101, et seq., providing potable water and sanitary sewer service to the area around El Jebel, Colorado; and WHEREAS, on May 1, 2000, the County and the District (``parties") entered into a Pre-Inclusion Agreement recorded with the Eagle County Clerk and Recorder at Reception No. 729772 ("Pre-Inclusion Agreement"), in which the parties agreed to include certain property, now known as Crown Mountain Park, owned by the County (the '`Property") into the District in order to receive water and sewer services and further agreed to "dedicate for no consideration well sites for up to two wells on the Petition Property to the District and shall grant all requisite easements for the District's use of the well sites and all appurtenant structures and pipelines;" and WHEREAS, the District now wishes to develop a new municipal well pursuant to the Pre-Inclusion Agreement for the purpose of obtaining additional raw water sources for the District's water supply, including supplying water to the County's property; and WHEREAS, the County owns five wells on the Property, Mount Sopris Tree Farm Well Nos. 1-5 (collectively Mount Sopris Tree Farm Wells), which it leases to the Crown Mountain Park and Recreation District ("Leasee") pursuant to that certain Lease Agreement dated March 10, 2005 with the Crown Mountain Park and Recreation District, with the exception of Well No. 2, which was removed from the lease by the First Amendment to the Lease dated September 20, 2005; and WHEREAS, Mt. Sopris Tree Farm Well No. 3 ("Well No. 3") is not properly located to be utilized by either the County or Lessee; and WHEREAS, the District investigated acquiring an easement from the County to utilize Well No. 3, which is currently not in use by the County or Lessee, as an additional well under the Pre-Inclusion Agreement; and WHEREAS, upon conducting field tests to determine the viability of Well No. 3, the District determined that it would not attempt to utilize Well No. 3, based upon a well qo-a~B test report dated June 24, 2009 by Samuelson Pump Co., which finds Well No 3 to be in an unusable state, but instead pursue development of a new municipal well near Well No. 3; and WHEREAS, the District wishes to drill a test well for the purposes of conducting a pump test near Well No. 3 to determine whether developing a new municipal well ("MVMD Mount Sopris Well No. 6") at this location is viable; and WHEREAS, upon a determination that the area near Well No. 3 is viable for MVMD Mount Sopris Well No. 6, the District shall proceed with construction of said well; and WHEREAS, under C.R.S. § 37-90-137(2), any well proposed to be developed within six-hundred feet (600') of another well is presumed, absent evidence to the contrary to be shown at a hearing before the State Engineer's office for this purpose, to cause interference with the existing well; and WHEREAS, MVMD Mount Sopris Well No. 6 would be constructed within six hundred feet (600') of Well No. 3; and WHEREAS, if the parties find the area near Well No. 3 suitable for a new MVMD Mount Sopris Well No. 6, the parties agree to forego use of Well No. 3 at this location and waive the six-hundred-foot spacing restriction for construction of MVMD Mount Sopris Well No. 6 under C.R.S. § 37-90-137(2); and WHEREAS, if the County or Lessee wish to utilize the Well No. 3 water rights after the District's construction of MVMD Mount Sopris Well No. 6, they must do so at a location at least six hundred feet (600') from MVMD Mount Sopris Well No. 6 drilled by the District, and the District shall not oppose the County or Lessee in developing said well at a new location; and WHEREAS, the parties desire to set forth the terms of said easement, well location and operation of a new municipal well by the District. NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Recitals. The foregoing recitals are incorporated herein by this reference. 2. Well No. 3. The parties agree Well No. 3 is unusable in its current form for the District's, Lessee's, or County's purposes. As groundwater is prevalent in the area surrounding Well No. 3, the District wishes to drill MVMD Mount Sopris Well No. 6 and construct related facilities in the vicinity of Well No. 3. 3. Waiver of Spacing Requirements. The County agrees to waive spacing requirements under C.R.S. § 37-90-137(2), requiring MVMD Mount 2 Sopris Well No. 6 to be located six hundred feet (600') from an existing well, for Well No. 3, so as to allow the District to drill a test well and develop MVMD Mount Sopris Well No. 6 near Well No. 3. 4. Test Well. The County shall grant the District a temporary, non-exclusive easement providing for a right of entry for purposes of drilling a test well in the vicinity of Well No. 3, together with the right to pump test said well. The District, in its sole discretion, shall determine whether the test well is viable for its intended purposes and reserves the right to drill additional test wells on the Property as necessary to produce an adequate water supply. The District shall provide the County with copies of the pump test results. 5. New Municipal Well (MVMD Mount Sopris Well No. 6) and Facilities. Upon a determination by the District, in its sole discretion. of an appropriate location for a new municipal well (`MVMD Mount Sopris Well No. 6'") based upon drilling test well or wells under Paragraph 6, the District shall complete construction of a MVMD Mount Sopris Well No. 6 and appurtenant facilities and connect such facilities to existing District water mains at a mutually agreeable location, which approval shall not be unreasonably withheld by the County. The District shall submit engineered plans detailing the locations, elevations, and structures for the County's review and approval prior to construction of well facilities, which approval shall not be unreasonably withheld. Upon completion of the well facilities, the District shall prepare as-built drawings and submit said drawings to the County for its review and approval of legal descriptions for the well facilities and lines. The County represents that the Property is free and clear of all liens and encumbrances which might impact the District's use and enjoyment of the well facilities sites for their intended purposes. 6. Grant of Easement. The County agrees to grant the District easements of adequate width pursuant to the District's Rules and Regulations for all wells and related well facilities, including, but not limited to, chlorination facilities and transmission lines. The County's grant of easement to the District shall include the right to extend electrical power to the newly constructed well facilities. 7. Well No. 3 Water Rights. The County shall retain title to the water rights utilized by Well No. 3, as decreed in Case No. W-467 and Case No. W- 469 and permitted as to Permit No. 014001-F, and reserves all rights to drill a new well on the Property. The District shall not oppose any future change in well site location by the County or its Lessee for Well No. 3 if the planned replacement well will be located more than 600 feet from the constructed location of MVMD Mount Sopris Well No. 6. Any such replacement well located within 600 feet of the constructed location of MVMD Mount Sopris Well No. 6 shall not operate to interfere with the ability of MVMD Mount Sopris Well No. 6 to reliably produce the following monthly volumes of water at an average daily pumping rate of 500 g.p.m., or at such lesser pumping rate as is demonstrated from post- construction pump testing of MVMD Mount Sopris Well No. 6, the results of which the District shall provide to the County." Additional Rights Under the Pre-Inclusion Agreement. The County and the District acknowledge that, pursuant to the Pre-Inclusion Agreement, the District is entitled to two well locations on the Property and agree to cooperate in the location of the second well site easement. Water Court Applications. Regardless of priority dates, neither party will oppose a water application submitted by the other party for a change of well location necessary to implement this Agreement. l0. Approved Augmentation Plan. The District agrees to obtain a Water Court approved augmentation plan at their expense to operate the MVMD Mount Sopris Well No. 6. 11. Amendment of Crown Mountain Lease. County agrees to, within 60 days of the execution of this agreement, to amend the Crown Mountain Lease to remove or consent to relocate, pursuant to the terms of the agreement, the Well No. 3. This agreement is contingent upon Crown Mountain agreeing to amend the lease. 12. Well Monitoring. The County consents to allow the District to monitor the water levels in the Mt. Sopris Tree Farm Wells, subject to the District obtaining the consent of Lessee. 13. Notices. All notices, requests, demands, consents, and other communications pertaining to this Agreement shall be transmitted in writing and shall be deemed duly given when received by the parties at their addresses below or any subsequent addresses provided to the other party in writing. a. Notice to Eagle County: Tom Johnson, Director Eagle County Facilities Management 500 Broadway, P.O. Box 850 Eagle, CO 81631 With Copy to: Eagle County Attorney Eagle County Attorney's Office 500 Broadway, P.O. Box 850 Eagle, CO 81631 b. Notice to District: Mid Valley Metropolitan District 0031 Duroux Lane, Suite A Basalt, CO 81621 With Copy to: Loyal E. Leavenworth, P.C., PO Box 1530, Carbondale, CO 81623. 14. Binding_A~7reement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors, assigns, heirs, devisees, or transferees. 4 15. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder, including a subsequent breach of the same agreement. 16. Covenants in This Agreement. The parties agree and intend that this Agreement shall run with the Property and be a burden and covenant on the Property. 17. Complete Agreement. This Agreement constitutes the entire and complete agreement of the parties on the subject matter herein. No promise or undertaking has been made by any party, and no understanding exists with respect to the transactions contemplated, except as expressly set forth herein. All prior and contemporaneous negotiations and understandings between the parties are embodied and merged into this Agreement. 18. Enforceability. [f any covenant, term, condition, or provision of this Agreement shall, for any reason, be held to be invalid or unenforceable, the invalidity or unenforceability of such covenant, term, condition, or provision shall not affect any other provision contained herein. 19. Governing Law. This Agreement shall be governed by the laws of Colorado, which state also be deemed the place where this Agreement was entered into and the place of performance and transaction of business of the parties. In the even of litigation pertaining to this Agreement, the exclusive forum, venue, and place of jurisdiction shall also be Colorado, unless otherwise designated in writing by the parties. 20. Authority. Each person executing this Agreement represents and warrants that he or she has been duly authorized by one of the parties to execute this Agreement and has authority to bind said party to the terms and conditions hereof. 21. Assi ng ment. Any assignment or attempt to assign any portion of the District or County's rights or obligations shall be void and of no force and effect unless the assigning party shall have attained the written consent to any such assignment from the other party. Approval of such assignment, if given, shall not release either party from any responsibility or liability under this Agreement. 22. Attorney Fees and Costs. In the event legal action is necessary to enforce the provisions of this Agreement, the prevailing party shall be entitled to damages and reasonable attorney fees and costs. 23. Amendments. This 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 Agreement. 24. Counterparts. This Agreement may be executed in duplicate counterpart originals, each of which shall constitute an original but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth next to their signatures. EAGLE COUNTY, COLORADO, acting by and through the Eagle County Board of County Commissioners. By: Sara J. Fisher Title: Chairman ~~ID VALLEY ,, ~ ROPOLITAN DISTRIC~ ~~ ~ ~ ~~ By: I~o`b~lark Title: President 6 STATE OF COLORADO COUNTY OF EAGLE ss. ,, Acknowledged, subscribed, and sworn to before me this ~ day of ll~~ Vl , 2~1~, by `~1.4~Z~. ~ , r~l~~~i~' as ~i{'/1~1.1~ VY1 ~l,f~ for Eagle County, Colorado. WITNESS my hand and official seal. My Commission expires: ~-l «I zcv~ DEBORAH L CHURCHILL Notary Public StatE of Colorado My Cpmmlesion Expires FCtxuarV 18, 2011 ~1 ~~'1 1 1 1 VV~^WV~. Notary PullbllWllli//c~~~//111 STATE OF COLORADO ) ss. COUNTY OF EAGLE ) Acknowledged, subscribed, and sworn to before me this ~~"day of ~i1,1~•~ , 20 IL, by Rob Clark as President of the Mid Valley Metropolitan District. WITNESS my hand and official seal. ~~ My Commission expires: ' ' ~('~ / ~ C ~~ ~ C Notary Public