HomeMy WebLinkAboutC20-145 Scott Green Ditch AgreementAGREEMENT FOR DITCH CROSSING
1.PARTIES. The parties to this Agreement for Ditch Crossing are the Eagle County School
District RE 50J, the County of Eagle, _April 14, 2020_ (collectively, “Ditch Owners”), and
Scott A. and Cappie A. Green, (the "Licensee") (collectively, the "Parties"). The Ditch
Owners and Licensee are jointly referred to herein as the “Parties.”
2.RECITALS.
2.1 Licensee owns property known as Lot 1, Amended Plat, I K Bar Ranches,
according to the Survey recorded November 1, 1995, in Book 679 at Page 869, County of
Eagle, State of Colorado (the "Property").
2.2 Ditch Owners possess a decreed or other right to use water diverted at and
carried through the Chatfield and Bartholomew Ditch, and specifically across the Property.
2.3 Pursuant to Colorado law, Ditch Owners share in the use of the Chatfield and
Bartholomew Ditch and an existing easement on either side of said ditch for their access,
operation, maintenance, repair, reconstruction and use of the ditch (the ditch and ditch
easement are collectively referred to as the “Ditch”). The rights of the Ditch Owners set
forth herein are in addition to, and do not diminish, the Ditch Owners’ existing rights and
interests in the Ditch and the water rights carried in the Ditch.
2.4 The Licensee desires to obtain the permission of the Ditch Owners to install
three (3) 42-inch diameter culverts within the Ditch (“the Culverts”) on the Property.
“Culverts” as used herein includes any facilities adjacent to the Culverts installed for the
purpose of reinforcing the area above and around the Culverts in order to protect the safety,
integrity and functionality of the Ditch, the driveways over the Culverts, and any utilities over
or under the Culverts.
2.5 The purpose of two (2) of the Culverts is to allow driveway access across the
ditch to new lots for single-family residences that will be created on the Property, and the
purpose of the third Culvert is to allow construction of a fence over the Ditch (“Fence”) at the
locations depicted on EXHIBIT A, and repair, maintain and replace said structures (“Licensed
Activities”).
WHEREFORE, the Ditch Owners agree to license to the fullest extent allowed by their
respective interests in the Ditch the proposed Licensed Activities and grant permanent
rights thereto, subject to the covenants, terms, conditions, and agreements set forth in this
Agreement. Accordingly, in consideration of the mutual promises set forth in this Agreement,
the Parties covenant and agree as follows:
1.INCORPORATION OF RECITALS. The Recitals are incorporated herein as if set forth in full.
2.LICENSEE’S WARRANTY. Licensee warrants and represents to Ditch Owners that at the
time of execution of this Agreement there are no monetary liens (except the lien of real
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estate taxes not yet due and payable) or encumbrances on the Property, except for a
mortgage and deed of trust.
3. USE OF DITCH BY LICENSEE. The scope and location of the Ditch Easement has not
been recognized or defined by any Court, or specifically agreed to by and between the
parties. The Licensee may make uses of the Property on which the easement is located that
does not interfere with the operation, maintenance, repair, and use of the Ditch, including
without limitation the Licensed Activities. The following activities are specifically prohibited:
3.1 Licensee does not own water rights in the Ditch, and Licensee shall not divert
any water from the Ditch.
3.2 Licensee shall not knowingly or negligently cause by grading or otherwise
permit surface runoff to enter the Ditch, or cause discharge of a prohibited material into the
Ditch. For the purposes of this Agreement, “prohibited material” shall mean any
contaminant, hazardous waste, or other material regulated or controlled by federal, state or
local statue or ordinance, in concentrations or quantities exceeding those permitted by
applicable federal, state or local statute or ordinance, as such statutes and ordinances now
exist or as are hereafter enacted or amended, and in addition, any other material or
substances which would materially interfere with use, operation, or maintenance of the
Ditch or water from the Ditch.
3.3 Licensee shall not construct or install buildings or other permanent
improvements, and shall not plant trees or shrubs, within the 30 foot wide corridor fo r the
Ditch depicted in the Annexation Map for I K Bar Ranches Recorded in the real estate
records of Eagle County, Colorado at Reception No. 201908427 and on the Final Plat for
Green’s Landing, unless the Licensee first obtains the written permission of the Ditch
Owners.
3.4 The License granted to the Licensee herein in no way restricts the Ditch
Owners’ right to the use of its Ditch easement to construct, operate, or maintain all existing
structures and facilities of the Ditch, including without limitation cutting and clearing trees,
brush, debris, and other obstructions on the easement.
3.5 Licensee acknowledges that it must obtain separate permission for the
Licensed Activities from any ditch owner not signing this Agreement. Licensee has obtained
such permission from all other owners to install, maintain and repair the Culverts in
accordance with the approved design of the Culverts.
4. INSTALLATION OF CULVERTS AND FENCE.
4.1 The Licensee has obtained approval for plans and specifications provided to
the Ditch Owners by Licensee. The Ditch Owners’ review of the plans and specifications was
solely for their own benefit and created no obligation or liability on the Ditch Owners for the
Licensed Activities. At a minimum, the Culverts shall not impact the flow rat e, timing, or
delivery of water to the Ditch Owners.
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4.2 Licensee shall provide the Ditch Owners with copies of recorded subdivision
covenants on the Property for Green’s Landing, a Subdivision in the Town of Gypsum, Eagle
County, Colorado, that make this Agreement binding on the Property and all future lot
owners by inclusion of the following provision or alternative language agreed to by the Ditch
Owners:
Lots 1-10 of Green’s Landing subdivision are subject to the terms and
conditions and obligations set forth in the Agreement for Ditch Crossing dated
______ and recorded in the real estate records of Eagle County, Colorado on
________, 2020 at Reception No. _________ as if those terms and conditions
are set forth herein. This term is included for the benefit of the interests in
the Ditch owned by Ditch Owners identified in that agreement.
4.3 All portions of the Ditch, bottoms, sides, banks, and all affected portions of
the Ditch Owners’ easement which are disturbed by the Licensed Activities shall be resto red
to their original condition so the flow of the water in the Ditch run at the original amount and
velocity (the original amount and velocity can be determined based upon an examination of
upstream and downstream segments of the Ditch).
4.4 The Licensee agrees that the installation shall proceed expeditiously and with
reasonable diligence from the commencement of construction to its completion. The
Licensed Activities shall be completed by May 31, 2020, subject to weather delays
(“Completion Date”). Licensee shall provide Ditch Owners with the name and contact
information for any contractor doing work on the Culverts. If the Culverts are not installed
and completed by the aforementioned date (as may be extended), the Parties shall work
together on alternate dates.
5. INSPECTION.
5.1 The Licensee shall notify the Ditch Owners’ Representative at least three (3)
days prior to commencement of the Licensed Activities, including without limitation
installation of the Culverts, except for emergency repairs as provided for in paragraph 6.4 of
this License Agreement and except for any minor cleaning of Culverts and any grates. The
Ditch Owners are permitted to inspect Licensed Activities prior to construction, during
construction and post construction. The Licen see shall notify the Ditch Owners’
Representative within two (2) days of conclusion of construction of the Licensed Activities,
including without limitation installation of the Culverts.
5.2 The Ditch Owners’ right to inspect the Licensed Activities or the construction
of the Culverts in no way relieves the Licensee of its liability for improper construction. The
Ditch Owners’ inspection is solely for the benefit of the Ditch Owners and creates no
obligation to the Ditch Owners, and does not create a joint venture between the Parties.
6. MAINTENANCE, REPAIRS AND REPLACEMENT OF CULVERTS.
6.1 The Licensee specifically agrees and pledges to maintain, repair and replace
the Culverts and Fence so as not to require the Ditch Owners to maintain, repair or replace
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them unless damage is caused by the Ditch Owners. Maintenance shall include without
limitation removing trash and other debris from any grate or lattice installed over the mouth
of the Culverts, and fixing any erosion around the Culverts and Fence.
6.2 Once installed, any maintenance, repair or replacement of a Culvert or Fence
that requires cutting into a ditch bank or placing new or modified structures in the Ditch
shall require Ditch Owners’ prior written approval. Such work shall be approved by the Ditch
Owners’ Representative subject to the requirements for original installation set forth in
paragraphs 4 above.
6.3 If the Licensee fails to properly maintain, repair or replace any portion of the
Culverts and Fence for which it is responsible after ten (10) days’ notice of the need for
same, unless more time is reasonably needed and approved by the Ditch Owners, which
approval shall not be unreasonably denied, the Ditch Owners may, at their own option,
conduct their own maintenance, repair or replacement, and the Licensee shall reimburse
the Ditch Owners for the reasonable cost of such work within 30 days, including legal and
engineering fees. In the event the Licensee fails to maintain, repair or replace the Culverts
and Fence, it shall be held liable for any loss, damage or injury to the Ditch Owners. If the
Ditch Owners conduct their own maintenance, repair or replacement, Ditch Owners do not
waive the right to hold the Licensee liable for damages caused by Licensee’s failure to
maintain, repair or replace.
6.4 In the event of an emergency, the Ditch Owners or the Licensee may conduct
maintenance or repair to the Culverts and Fence immediately, giving notice to the other
party as soon as possible at the emergency contacts identified below. If the Ditch Owners
conduct emergency work, Licensee shall reimburse Ditch Owners for the reasonable cost of
the work, including legal and engineering fees. Under no circumstances shall the Ditch
Owners be responsible or held liable for damages to the Culverts or Fence resulting from
maintenance or repair to the Ditch except to the extent caused by the Ditch Owners’
negligence or willful misconduct.
7. LIABILITY AND INDEMNIFICATION.
7.1 By virtue of entering into this License Agreement, the Ditch Owners: (1)
assume no liability for use, operation, or existence of the Culverts or Fence except to the
extent caused by the Ditch Owners’ negligence or willful misconduct; and (2) assume no
additional responsibilities or obligations related to the Licensed Activities which are required
by this License Agreement.
7.2 The Licensee agrees to indemnify and hold harmless the Ditch Owners, from
all claims and liability for damage or injury to property or persons arising or caused directly
or indirectly by the Licensee’s construction, restoration, maintenance of, or failure to
maintain, the Culverts or Fence and the Licensee’s occupancy and use of the Ditch located
in EXHIBIT A, except to the extent caused by the Ditch Owners’ negligence or willful
misconduct..
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7.3 Licensee acknowledges and accepts that the Ditch is unlined and may leak
and that, consistent with Colorado Law, the Ditch Owners are not responsible for, and
Licensee waives any and all claims for damages resulting from, ordinary seepage and the
reasonable and necessary operation, mainten ance, repair or replacement of the Ditch.
7.4 No provisions of this Agreement shall be construed to waive the immunity
under the Governmental Immunity Act afforded to Eagle County School District RE-50J and
the County.
8. TERMINATION. Once the Culverts and Fence have been constructed consistent with this
Agreement and Licensee has complied with paragraph 4.2 above, the license granted
herein, which license includes all of the terms and conditions in this Agreement, shall
become a perpetual right as to the Culverts, Fence, and Licensed Activities. Termination
may only occur by mutual agreement of the Parties.
9. DAMAGES. In the event of default in the performance of any of the obligations set forth
herein which the defaulting party does not cure within 10 days after written notice of such
default from the non-defaulting party (or in the case of a default that would reasonably take
more than 10 days to cure, if the defaulting party shall fail to undertake substantial action to
cure such default within such 10 days after written notice of default and diligently pursue
such cure thereafter), the non-defaulting party shall have all remedies that may be available
to it in law or equity, subject to the arbitration requirement herein.
10. NOTICES. Any notice required or permitted by this License 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 or by e-mail, addressed to the party to whom such
notice is intended at the addresses set forth below, or at such other addresses 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 U.S. mail or sent via e-mail.
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DITCH OWNERS:
Eagle County School District RE-50J
Attn: Sandy Mutchler, Chief Financial Officer
948 Chambers Avenue
Post Office Box 740
Eagle, CO 81631
Telephone: (970) 328-6321
Facsimile: (970) 328-1024
Ditch Owners’
Representative
County of Eagle, Colorado
Attention: County Attorney Office
P.O. Box 850
Eagle, CO 81631
970-328-8685
atty@eaglecounty.us
LICENSEE:
Scott A. and Cappie A. Green
600 Cottonwood Pass Road
Gypsum, CO 81637
9703764080
sgegypsum@gmail.com
11. NO WAIVER. The waiver by any party to this License Agreement of a breach of, or failure
of any party to enforce, any term or provision of this License Agreement shall not operate or
be construed as a waiver of any subsequent breach by any party.
12. ATTORNEY’S FEES. In the event of breach of this Agreement, the prevailing party shall
be entitled to recover damages as provided by Colorado law, reasonable attorney's fees and
costs, together with equitable relief if appropriate.
13. CHOICE OF LAW AND VENUE. This Agreement shall be construed and enforced
according to the laws and State of Colorado. In the event of any litigation arising under this
Agreement, venue shall be exclusively proper in Eagle County, Colorado.
14. BINDING EFFECT. It is mutually understood and agreed that this Agreement and all the
covenants, terms, and conditions contained herein shall run with and burden the Property
and the Ditch and extend to and be binding upon the Parties hereto, their successors and
assigns. Upon subdivision of the Property, all successors and assigns shall assume all of
Licensee’s rights and obligations hereunder with respect to that Culvert and Fence.
15. RECORDATION. This License Agreement shall be binding upon the Parties and their
successors and assigns. This License Agreement shall be recorded at the cost of the County
and shall be binding on any successors of the Parties.
16. EXECUTION. This Agreement may be executed in multiple parts as originals or by legible
electronic scans copies of executed originals; p rovided however, if executed and evidence of
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execution is made by facsimile copy, then an original shall be provided to the other party(ies)
within seven days of receipt of said facsimile copy.
17. AMENDMENT. Except as expressly provided for herein to the contrary, this Agreement
may not be amended, except by subsequent written agreement of the Parties.
18. EXHIBITS. All exhibits referred to in this License Agreement are, by reference,
incorporated in this License Agreement for all purposes.
This effective date of this License Agreement for Ditch Crossing shall be the last date on
which the Greens and all of the Ditch Owners sign the Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
DITCHOWNEREAGLECOUNTYSCHOOLDISTRICTRE-50J:By:____________________________date9,2020PrintName:c’t’-p—Title:(DtSTATEOFCOLORADOss.COUNTYOF_______________TheforegoingLicenseAgreementforDitchCrossigwasacknowledgedbeforemethisCDOicIPZi1%(UA%k1d6OJWitnessmyhandandofficialseal.MyCommissionexpires:dpyyiNotaPublicMELISSAGERARDNOTARYPUBLICSTATEOFCOLORADONOTARYPD#20004012015MYCOMMISSIONEXPIRES04-21-20208
_______________________date,2020y\4/—__—date/B,2020Cpii.enSTATEOFCOLORADO)—)55.COUNTYOF_______________)TheforegoingLicenseAgreementforDitchCrossingwasacknowledgedbeforemethis3mdayofApr;I,2020.by-iias_____________________________forScottA.Green.__________________Witnessmyhandandofficialseal.MyCommissionexpires:UIS/O2SHAWNWILLtAMBAXTERNotaryPublicNOTARYPUBLICSTATEOFCOLORADOSTATEOFCOLORADO)NOTARYID#20164045525—)ss.MYCOMMISSIONEXPIRES1112612022COUNTYOFic.cj!e.)TheforegoingLicenseAgreementforDitchCrossingwasacknowledgedbeforemethisl3uayofAr/,2020.byCo,o;.as__________________________forCappieA.Green.________________Witnessmyhandandofficialseal.MyCommissionexpires:II!‘/2Notar9PublicSHAWNWILLIAMBAXTERNOTARYPUBLICSTATEOFCOLORADOINOTARYID#20164045525jM’COMMISSIONEXPIRES111281202210
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EXHIBIT A
DEPICTION OF DITCH CROSSINGS
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WETLANDS (TYPICAL)
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ROAD PROFILE SCALE CONrD
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HORIZONTAL: 1"=30'
j � VERTICAL, 1"•30' i,�
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C2.2 EXHIBIT A
