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HomeMy WebLinkAbout21-29 Temporary Construction Easement LG Everist, Inc. Last Chance Ditch Firestone Reservoir No. 1 02-10-2021RESOLUTION N0.21-29 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, ACCEPTING A GRANT OF TEMPORARY CONSTRUCTION EASEMENT FROM LG EVERIST, INC. FOR CONSTRUCTION OF IMPROVEMENTS RELATED TO THE DIVERSION OF WATER FROM LAST CHANCE DITCH TO THE FIRESTONE RESERVOIR NO.1 PROPERTY WHEREAS, LG Everist, Incorporated ("Grantor") owns certain real property located in Weld County, Colorado; and WHEREAS, the Town desires to install water diversion and transport facilities on a portion of Grantor's Property (the "Easement Property"), which include certain related infrastructure, including irrigation ditch diversion/metering structure, pipeline, and valves for the Eversion of water from the Last Chance Ditch and storm drainage facilities consisting of a side - spill weir and associated drainage channel off the Last Chance Ditch to the Firestone Reservoir No. 1 property (collectively, the "Improvements"); and WHEREAS, the Town desires to obtain from Grantor, and Grantor desires to grant to the Town, a temporary easement on, over, under and across the Easement Property for the purpose of constructing the Improvements within the Easement Property. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: Section 1. The Board of Trustees accepts the grant of a temporary construction easement from LG Everist, Inc. to the Town to use a strip of land owned by LG Everist, Inc. for constructing water diversion and transport facilities on said strip of land. Section 2. Within ninety (90) days of the date of this resolution, LG Everist, Inc. shall execute and deliver for execution to the Town Manager, a written instrument of conveyance of a temporary construction easement in a form approved by the Town Attorney, consistent with the intent and purposes of this resolution. INTRODUCED, READ AND ADOPTED this � day of , 2021. CUI bi A TTL'Cr T. Mayor APPROVED AS TO FORM: TEMPORARY ACCESS AND IMPROVEMENTS EASEMENT AGREEMENT THIS TEMPORARY ACCESS AND IMPROVEMENTS EASEMENT AGREEMENT (this Easement Agreement) is made as of the A01way of , 2021, by and between L.G. EVERIST, INCORPORATED, a South Dakota corporation, with its Colorado corporate offices at 7321 East 88th Avenue, Suite 200, Henderson, Colorado 80640 Grantor , and the TOWN OF FIRESTONE, a Colorado municipal corporation, acting by and through its Town of Firestone Water Activity Enterprise, organized and existing as a "water activity enterprise" under C.R.S. 374.1401 et seq., whose address is 8308 Colorado Blvd., Suite 200, Firestone, Colorado 80504, Attention: Town Manager (Grantee . Grantor and Grantee are sometimes referred to herein individually as a Party or collectively as the Parties. RECITALS: A. WHEREAS, Grantor owns certain real property located in Weld County, Colorado, hereinafter referred to as the Easement Property, as more specifically defined in Exhibit A attached hereto; B. WHEREAS, Grantor and Grantee have entered into that certain Purchase and Sale Agreement (Carbon Valley Parcel) effective as of October 12, 2016 (the Purchase Agreement), whereby the Grantor has agreed to extend to Grantee an option to purchase the Brooks Farm Parcel e C. WHEREAS, Grantee desires to install water diversion and transport facilities on the Easement Property the Pro' ect which include certain related infrastructure, including irrigation ditch check structure, ditch diversion/metering structure, water diversion box, pipelines, and valves for the diversion of water from the Last Chance Ditch to the Carbon Valley Parcel and the Brooks Farm Parcel (collectively, the Improvements); and D. WHEREAS, Grantee desires to obtain from Grantor, and Grantor desires to grant to Grantee, a temporary easement on, over) under and across the Easement Property for the purpose of constructing the Improvements within the Easement Property (such activities, collectively, the Easement Activities as more specifically defined below); EASEMENT: NOW, THEREFORE, for and in consideration of the foregoing recitals and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby confessed and acknowledged, Grantor and Grantee agree as follows: GRANT OF EASEMENT. Grantor does hereby declare, establish and create for the benefit of Grantee and Grantee's agents, employees, contractors, concessionaires, representatives, successors and assigns, a temporary, non-exclusive easement (the Easement) on, over, across and under the Easement Property for the purpose of: (a) installing, constructing, locating, surveying, maintaining, and repairing the Improvements and the Project, and (b) access, ingress, and egress reasonably necessary to accomplish the foregoing (collectively, the Easement Activities). COVENANTS OF GRANTEE. In exercising the rights granted hereunder, performing the Easement Activities, and otherwise accessing the Easement Property, Grantee agrees to each of the following covenants: Grantee shall protect the Easement Property and any adjacent lands of Grantor or others from damage caused in whole or in part by acts or omissions of Grantee, its agents, employees, contractors, concessionaires, or representatives(collectively, and together with Grantee, Grantee's Responsible Parties). Grantee will make such repairs or take such other action as may be necessary to restore the Easement area to a condition comparable to its condition prior to Grantee's Easement Activities in the Easement area, including but not limited to the reseeding and replanting of any disturbed areas in a manner reasonably satisfactory to Grantor, correction of any subsidence, and restoration of any other improvements or conditions impacted by Grantee's Easement Activities, All Easement Activities shall be performed at Grantee's sole cost and expense. Grantee's Responsible Parties shall enter onto the Easement Property and utilize the Easement granted hereunder at their own risk and they further assume all risks related to the same. Grantor shall have no liability to Grantee's Responsible Parties for any and all claims, damages, losses, liens, costs, liabilities, fines, and expenses (including reasonable attorneys' fees and court costs), damage to or destruction of property, and death of or injury to any person related to or arising From Grantee's Easement Activities and Grantor is hereby irrevocably and forever released from the same. In all actions undertaken on the Easement Property by any of Grantee's Responsible Parties, all work shall be completed in a workmanlike manner, free of all liens (including mechanics' liens) and encumbrances on the Easement Property. Grantee shall not cause, or permit to be caused by any of Grantee's Responsible Parties, any Hazardous Materials (as defined below) to be transported to, or dumped, spilled, released, permanently stored, or deposited on, over or beneath the Easement Property or any other lands owned by Grantor. Hazardous Materials means substances, materials or waste the generation, handling, storage, treatment or disposal of which is regulated by any local, state or federal government authority or Iaws, as a hazardous waste, hazardous material, hazardous substance, pollutant or contaminant and including, without limitation, those designated as a hazardous substance under Section 311 or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Secs. 1321, 1317), defined as a hazardous waste under Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C. Sec. 6903), or defined as a hazardous substance under Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Sec. )601), and, including, without limitation, petroleum products and byproducts, PCBs and asbestos. Grantee shall comply with all applicable federal, state and local laws, rules and ordinances in connection with its use of the Easement Property and shall obtain all permits and approvals required by applicable governmental or quasi -governmental entities in connection with Grantee's Easement Activities and use of the Easement Property as permitted hereunder. The Easement and rights granted herein shall not be used in such a manner as to violate any county regulation, city ordinance or state or federal law, rule or regulation. Grantee shall utilize the Easement in such a manner so as to avoid any interruption of or interference with Grantor's mining operations and/or reclamation of the Easement Property as provided for under Grantor's mining and reclamation permits. To the extent permitted by law Grantee shall indemnify and hold Grantor harmless from and against any damage that may be incurred by Grantor as a result of the activities of Grantee under the Easement, provided, however, that nothing herein shall be construed as a waiver of any of Grantee's rights and privileges under the Colorado Governmental Immunity Act as same may be amended from time to time. GRANTOR'S OBLIGATIONS. Grantor shall not disturb, without obtaining Grantee's prior written consent (which consent shall not be unreasonably withheld), any Improvements nor permit to be built, created or constructed, any obstruction, building, impzovement or other structure on, over or under any Improvements that will interfere with the operation or function of the Improvements. GENERAL PROVISIONS. Easement Term. This Easement Agreement, including the Easement and all other covenants, agreements, rights and obligations created hereby, shall run with the Easement Property, and shall be binding on and inure to the benefit of all of the parties hereto, their successors, assigns, and all parties in interest. The Easement Agreement shall terminate upon the earlier to occur; 1) December 31, 2022, or 2) execution and conveyance of a permanent Access and Improvement Easement Agreement associated with a purchase and sale agreement for the Brooks Farm Parcel between Grantor and Grantee. Successors and Assigns. This Easement Agreement shall be binding on Grantor's and Grantee's respective successors and assigns; provided, however, that Grantee may not assign this Easement Agreement or its rights or delegate its obligations hereunder except as provided above. Section Headings. The Section headings herein are inserted only for convenience and reference and shall in no way define, limit, or prescribe the scope or intent of any provisions of this Easement Agreement. Severability. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and whenever there is any conflict between any provision herein and any present or future statute, law, ordinance or regulation contrary to which the Parties have no legal right to contract, the latter shall prevail, but the provision of this Easement Agreement affected shall be limited only to the extent necessary to bring it within the requirements of such statute, law, ordinance or regulation. Counterparts. This Easement Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all such counterparts taken together shall be deemed to constitute one and the same instrument. Governing Law. The terms and provisions of this Easement Agreement, and the interpretation and enforcement thereof, shall be governed by the laws of the State of Colorado, to which all Parties consent to venue and jurisdiction. Waiver. No term or condition of this Easement Agreement will be deemed to have been waived or amended unless expressed in writing, and the waiver of any condition or the breach of any term will not be a waiver of any subsequent breach of the same or any other term or condition. Amendment. This Easement Agreement may not be amended or terminated except by a written instrument signed by the fee-owner(s) of the Easement Property and the Grantee. Entire Agreement. This Easement Agreement, together with the exhibits attached hereto and the applicable provisions of the Purchase Agreement, contains the entire agreement of the Parties with respect to the subject matter hereof and no prior written or oral agreement shall have any force or effect or be binding upon the Parties. This Easement Agreement shall be binding upon, and inure to the benefit of, the Parties, their heirs, executors, personal representatives, nominees, successors or permitted assigns. Notices. All notices, requests, demands, or other communications (collectively, Notices hereunder shall be in writing and given by (i) established express delivery service which maintains delivery records requiring a signed receipt, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested to the Parties at the following address, or at such other address as the parties may designate by Notice in the above manner. If to Grantor: L.G. Everist, Inc. Mountain Division Office 7321 East 88th Avenue Suite 200 Henderson, CO 80640 Attn: Matthew Noteboom, VP -Mountain With a copy to: Welborn Sullivan Meck & Tooley, P.C. 1125 17th Street, Suite 2200 Denver, CO 80202 Attn: Mike Fredregill If to Grantee: Town of Firestone 8308 Colorado Blvd., Suite 200 Firestone, CO 80504 Attn: Town Manager With a copy to: Bradley C. Grasmick, Esq. Lawrence Jones Custer Grasmick, LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, CO 80534 Notices shall be effective (a) upon receipt a sent by an established express delivery service which maintains delivery records requiring a signed receipt, (b) upon receipt by the addressee of a hand delivery, or (c) three days following the date of mailing via certified or registered mail, postage prepaid, return receipt requested. Default. If any Party breaches any provision of this Easement Agreement and fails to cure such breach within 10 days after written notice thereof, the non -breaching Party shall be entitled to any and all remedies, legal or equitable, which may be available including, without limitation, specific performance. All such remedies, including those set forth in this Easement Agreement, shall be cumulative. No Attorneys Fees or Costs. In the event of any litigation, mediation, arbitration or other dispute resolution process arising out of this Easement Agreement, the Parties agree that each shall be responsible for their own costs and fees associated with any such legal action. Authority to Execute. Each person executing this Easement Agreement represents and warrants that he is duly authorized to execute this Easement Agreement by the Party on whose behalf he is so executing. Recordation. Either Party may record this Easement Agreement against the Easement Property in the appropriate jurisdiction. Notwithstanding the foregoing, in the event this Easement Agreement is terminated and either Party desires to record an instrument evidencing such termination, the Parties shall prepare, execute and record, at the shared expense of both Parties, any reasonable instrument necessary to release this Easement Agreement of record. Disclaimer of Joint Venture. This Easement Agreement is not intended to create a joint venture, partnership Vt agency relationship between Grantor and Grantee, and such joint venture, partnership, or agency relationship is specifically hereby disclaimed. Incorporation of Recitals. The above Recitals are true and correct and incorporated herein. Construction. The Parties have participated jointly in the negotiation and drafting of this Easement Agreement. In the event an ambiguity or question of intent or interpretation arises, this Easement Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Easement Agreement. [Signature pagesfoZlow.] IIN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as of the date first above written. GRANTOR: L.G. EVERIST, INCORPORATED, an Iowa corporation By: Nar Its: STATE OF COLORADO ) ) ss. COUNTY OF Ad(w\ S ) The foregoing Easement Agreement was acknowledged before me this MarC1n , 2021 , by MatFhevy J�t')i-P�c�U,M of L.G. INCORPORATED, an Iowa corporation. Witness my hand and official seal. My commission expires: ►—% -ZUZq Elisabeth Rae Marquez pimp* • NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20204004129 MY COMMISSION EXPIRES JANUARY 30, 2024 Notary Public day of EVERIST, GRANTEE: TOWN OF FIRESTONE, a Colorado municipal corporation, acting by and through its Town of Firestone Water Activity Enterprise, organized and existing as a "water activity enterprise" under C.R.S. 374.1401 et_ seq. By: Name: Title: STATE OF COLORADO ) COUNTY OF W ss. , ) E COUNT ��1�h�foregoing Easement Agreem t w s cknowled ed before me this � ��ay of 202j, by �� ► Q (�('�s of the Town of Firestone, a Colorado municipal corporation, acting by and through ' Town of Firestone Water Activity Enterprise, organized and existing as a "water activity enterprise" under C.R.S. 37.4.1- 101 et sen. Witness my hand and official seal. My commission expires: -1 - a EXHIBIT A Legal Description of Easement Property Being a part of Tract A, Block I of the Brooks Farm First Subdivision as evidenced in the Minor Plat of the same name recorded with Weld County Clerk and Recorder at Reception No. 2993165, on October 3, 2002, located in the Northwest Quarter of Section 6, Township 2 North, Range 67 West of the Sixth Principle Meridian, Town of Firestone, Weld County , Colorado, more particularly described as follows: Commencing at the Northwest Corner of Section 6, Township 2 North, Range 67 West of the Sixth Principle Meridian, from which the West Quarter Corner of said Section 6 bears S00*24' 19"W 2,661.34' (basis of bearing), thence along the North line of the Northwest Quarter of Section 6 389*12'01"E 1,270.63'; thence departing said North line SOI*14'S9"W 1,951.16' along the East line of said Tract A to the Point of Beginnings The following four courses and distances being the boundary of the Easement Property; 1) Thence continuing along East line of Tract A SO 1 * 14'59"W 400.00' to a point approximately 50' south of the centerline of the Last Chance Ditch; 2} Thence S91*14'S9"W 200.00'; 3) Thence N01*14'S9"E 400.00'; 4) Thence N91 * 147S911E 200.00' to the Point of Beginning. Said Easement Property being 80,000 square feet, more or less.