HomeMy WebLinkAboutbocc.con.146.2018 - BOCC RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS("BOCCI OF
PITKIN COUNTY, COLORADO, APPROVING THE RESTER DITCH
MODIFICATION AGREEMENT p
RESOLUTION NO. (iC _2018 CONTRACT
RECITALS: # / Cl _ 6,2 0/ Cel
1. Pursuant to Section 2.8.4(Actions)of the Pitkin County Home Rule Charter l 't`els,t`P
("IIRC"),all matters not required to be acted upon by ordinance or formal
resolution may be acted upon by informal resolution.
2. The Voters of Pitkin County and the Board of County Commissioners of Pitkin
County(BOCC)established an Open Space and Trails Fund for the purposes of
acquiring,preserving,managing, and maintaining open space and trails assets and
resources,and established an Open Space and Trails Board of Trustees(OSTB)to
guide the expenditure of those funds.
3. The Open Space and Trails Program(OST)is charged with protecting agriculture,
open space,habitat, scenic view planes, water rights and river access.
4. The Lazy Glen Open Space is comprised of approximately 73 acres located in the
Basalt/Snowmass Canyon area of Pitkin County and was acquired by Pitkin
County in two transactions; March 27, 2015 and February 19,2016. The property
was acquired to preserve the agricultural,scenic,wildlife,and recreational values of
the property.
5. The Lazy Glen Open Space Management Plan was adopted in May 2016 and
identifies the creation of a bridge and trail to connect the Lary Glen Subdivision to
the Rio Grande Trail that crosses the Alexis Arbaney Ditch and Kester Ditch.
6. The Kester Ditch Company requires a Ditch Modification Agreement to make
improvements to the ditch and complete the trail connection.
7. OST staff;Pitkin County Attorney,and Kester Ditch Company have agreed to the
form of the Ditch Modification Agreement.
8. The 130CC fords that it is in the best interests of the citizens of Pitkin County to
approve this Resolution.
NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of
Pitkin County,Colorado that it approves the Kester Ditch Modification Agreement and
authorizes the Chair to sign on behalf of the county. iiN{N�m nn mN mm {{
1 IIIIIIIIIIII IIIIIIIIII�II VIII IIII'�III�II�IIIIIIIIII��I�IIIIIII�II
RECEPTION#:647138, R:10.00, D: 10.00
DOC CODE: RESOLUTION
Pg 1 of 11.05/07/2018 at 10 09:07 AM
Janice K.Vos Caudill. Pitkin County,CO
INTRODUCED, READ AND ADOPTED ON THE /0A/1- DAY OF
_fp) vt.'k 2018.
AYFES BOARD OF COUNTY COMMISSIONERS
By A 1 - , v L4 rn* . Hy: -1 �� L
1e• i =tte Jones Patti Clapper,Chair
Del ty County Clc ,
Date: 03.0) 6-01olg
APPROVED AS TO FORM: MANAGER APPROVAL.
l L ). 1--__. -"L--?: _
John Ely, County Attorney Jon PBeeick, County Mihager
2
DITCH MODIFICATION AGREEMENT
This Agreement is dated this 18day of/1.,C1/*C ,Z°{ , by and between the
Kesler Ditch Companv,,,..a Colorado Non-profit Corporation (as "Owner") and BOARD OF
COUNTY COMMISSIONERS OF PITKIN COUNTY (as "Developer"). Owner and Developer
shall be jointly referred to as the`Parties."
WITNESSETH:
WHEREAS, the Kester Ditch is an incorporated ditch (the "Ditch") located, in part, in
Pitkin County.Colorado:
WHEREAS, Owner is the owner of the easement, structure and appurtenances for the
Ditch;
WHEREAS, Developer, through its Pitkin County Open Space & Trails program, owns
and/or maintains what is known as the Lazy Glen Trail easement and right of way located in
Pitkin County, which trail is more particularly shown in relevant part on Exhibit A ("Lazy Glen
Trail"):
WHEREAS, Developer desires to Stall paving and construct other improvements on
the Lazy Glen Trail as such Trail crosses over an existing 48 inch ADS culvert within the Ditch
("Improvements"):
WHEREAS, Owner wishes to protect its property interests in the Ditch easement and
structure rights from any and all hank, injury or increased maintenance or repair expenses that
may be caused by said Improvements on,over or within the Ditch easement.
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, and the mutual promises and covenants contained herein, the Parties agree as
follows:
1. PREAMBLE. The Parties recognize that the Ditch easement and structure rights arc
valuable property rights, which must be protected from harm that may result from Developer's
construction of the Improvements within and upon the Ditch easement. The Parties further
recognize that this Agreement establishes contract duties, rights, and remedies for the purpose of
protecting property rights in the Ditch easement, structure, and water rights delivered thereby
and it is the Parties' express expectation that the Improvements he constructed, and ultimately
function, in a safe and proper manner so as to accomplish the above stated purposes of this
Agreement, Developer acknowledges and agrees that the Ditch as realigned, altered, culverted
and/or improved must be capable of handling up to twenty-five (25) cubic feet per second of
flow through the length of the altered Ditch, as that is the historic and decreed capacity of the
Ditch at the subject Iocation on the Ditch.
2. APPROVAL OF IMPROVEMENTS AND CHANGES, Owner hereby approves the
plans for the Improvements that are shown on the drawings and plans for the Kesler Ditch paved
Ditch Modification Agreement nester Ditch
Page 2 of 7
trail crossing prepared by SGM including Sheet I dated 7/24/17 and Sheet 8 dated 7/31/17 (as
annotated by Pitkin County on 12/4/2017), as attached hereto and incorporated herein as Exhibit
A, subject to the following technical condition of approval: The existing cover over the Ditch
pipe must be removed down to the top of pipe for 3 feet either side of the pipe and replayed with
Class 6 aggregate base course compacted to 95 % per ASTM D698; and there must be a
minimum of 12 inches of compacted cover over the pipe including the 3-inch asphalt layer.
Together, Exhibit A and the above condition of approval constitute and define the approved
"Improvements" and form a material basis for this Agreement. Owner reserves the right to
review, approve, disapprove, or approve with conditions, any changes, updates, modifications, or
revisions to the attached Exhibit A,regardless of whether such changes are material, substantial,
or minor in nature,prior to any realignment or construction work relating to the changes; and any
such approved changes and construction items shall thereafter be incorporated within the
meaning of"Improvements" as used in, and for purposes of, this Agreement. Owner shall not
unreasonably withhold its approval of any changes, updates, modifications, or revisions, and
shall provide Developer with its approval or its reasons for denial thereof in writing within thirty
(30) days following receipt of Developer's written change proposal and request for approval.
However, Owner reserves the right to require restoration, alteration, or remedial efforts as a
condition of its approval. In the event Owner requires assistance from an engineer and/or an
attorney to review any changes, updates, modifications, or revisions to Exhibit A, Developer
shall pay the costs of the legal and/or engineering services. Owner reserves the right to object to
such Improvements, as installed, and to require remedial action be taken by Developer, at
Developer's expense, including, but not limited to, altering or removing the Improvements, in
the event the Improvements do not operate to provide and allow for the historic delivery of water
in quantity,quality and rate of flow.
3. TIMELY AND PROPER COMPLETION OF IMPROVEMENTS.
A. Developer must accomplish all work relating to the Improvements at times that do
not interfere with the Ditch's operations and that are outside of the Ditch's historic irrigation
season of April 1 through November 25 of each year, unless Owner agrees otherwise in writing.
Developer may not tap into, interfere with operation of or disturb the existing Ditch between
April 1 and November 25, unless Owner agrees otherwise in writing. The Panics agree that time
is of the essence in completing the proposed Improvements outside the irrigation season.
B. Developer must accomplish all construction work relating to the Improvements in
a workmanlike manner and in strict conformity with the plans attached as Exhibit A, including
the condition for approval (and/or any changes, updates, modifications, or revisions thereto that
have been approved by Owner pursuant to Paragraph 2 above). Developer must also ensure that
the Ditch's carrying capacity(25 e.f.$), volume of water flow and velocity of water flow will be
maintained at values consistent with the values existing prior to the construction work. Upon
completion of the Improvements, Developer's professional engineer shall certify in writing to
Owner that the work was accomplished in a workmanlike manner and in strict conformity with
the plans/conditions for the approved Improvements. Upon receipt of such certification, and
Ditch Modification Agreement -Kester Ditch
Page 3 oil
within a reasonable time period based on the ability to observe the actual performance of the
Improvements(as constructed) under a full flow and other various scenarios during the irrigation
season, Owner shall undertake a test and inspection of such construction and improvements, and
provide to Developer notice of approval of such construction; or notice of any construction items
that do not substantially comply with the approved Improvements plans or which do not perform
as intended under this Agreement. Upon receipt of such notice, Developer shall undertake to
fully correct such items which do not comply substantially with the approved Improvements
plans or intended performance of the Improvements. I'pon any such correction, Developer shall
undergo and comply with the certification and inspection process provided for above as if under
the original construction completion. Developer and its successors and assigns warrant the
performance of the Improvements for two irrigation seasons.
4. ACCESS TO INSPECT THE IMPROVEMENTS. In addition to Owner's easement
rights, Owner. its engineers and attorneys are granted a right of reasonable ingress and egress
access across Developer's property, to inspect the Improvements: or exercise its other easement
rights or rights granted by this Agreement.
5. MAINTENANCE AND REPAIR OF THE IMPROVEMENTS. Developer shall
operate, maintain, repair or replace the Improvements (referred to herein as "0, M & R") at
Developer's sole expense. Provided, however, the Owner does not waive or relinquish any and
all rights and appurtenant rights of access and 0, M & R to the Ditch. Owner shall be permitted
to use such equipment and vehicles, including heavy equipment and machinery, That are
reasonable and customary to exercise its 0, M& It rights under this paragraph.
Developer further agrees it shall be responsible for any and all repairs to the Improvements
within and upon the Ditch easement necessary to avoid or mitigate any damage to the Ditch
structure, adjacent property, or property down-gradient, or any malfunction in water delivery
through the Ditch,as a result of the Improvements within and upon the Ditch easement.
In the event Developer fails to 0, M & R the Improvements, then Owner shall notify Developer
in writing, which notice shall specify with particularity the nature of the failure to O, M & R. In
the event Developer,after said notice, fails to remedy the failure to 0,M&R within twenty-four
(24) hours after its receipt of such notice, then Owner may proceed to cure said failure and the
costs of such 0, M&R performed by Owner shall be reimbursed by the Developer.
Developer agrees that it shall reimburse Owner within thirty (30) days for any expenses Owner
incurs for 0, M& R of the Improvements. Reimbursements made to Owner after thirty(30) days
shall include an additional amount equal to eighteen percent (18 %) per annum or one and one
half percent(1.5 %)per month.
Owner shall be permitted to alter or remove all or any portion of the Improvements, at
Developer's sole expense, if such action is reasonably required for Owner to deliver water in
historic timing,quantity, quality and manner through the Ditch.
Ditch Modification Agreement Kesler Ditch
Page 4 of 7
6. ACKNOWLEDGMENT OF PMPLIED EASEMENT. Developer acknowledges that
Owner owns a prescriptive or implied easement for the Ditch in its current location across the
Lan Glenn Trail. As partial consideration for this Agreement, Developer hereby further
acknowledges and confirms to Owner such easement pursuant to construction of the subject
Improvements for the purposes of accessing (including ingress and egress), inspecting,
excavating, installing, operating, using, cleaning, maintaining, repairing, relocating, improving,
replacing and conveying water and water rights through the Ditch.
7. LIEN WAIVER. Developer expressly agrees to waive its (and its contractors and
subcontractors) rights to any lien(s) arising out of the construction of the Improvements within
the Ditch easement and to obtain lien waivers, in a form acceptable to Owner, from all other
laborers Or materialmen.
8. BREACH/REMEDIES. If either Party takes legal action to enforce or defend any part
of this Agreement,the prevailing Party shall be awarded its reasonable attorneys' fees and costs,
including reasonable attorney fees to establish and collect upon such award. This Agreement
does not alter the legal rights and liabilities incumbent on any of the Parties under applicable
statutes and case law concerning malfunction or failure of the Ditch.
9. REIMBURSEMENT OF COSTS AS PARTIAL CONSIDERATION. As partial
consideration for this Agreement and the consent to the ditch alteration granted, Developer shall
reimburse Owner for all fees and costs incurred in connection with this matter, including, but not
limited to, fees and costs related to the review of the proposed Improvements and drafting and
negotiation of this Agreement, upon execution of this Agreement. Developer shall have the
continuing responsibility to timely pay all such additional fees and costs incurred by Owner in
connection with this Agreement, including but not limited to legal, engineering, surveying and
construction fees and costs. Owner shall document and provide to Developer copies of all
applicable bills, invoices, statements, etc. for which Owner seeks reimbursement under this
paragraph.
Developer agrees that it shall reimburse Owner within thirty (30) days for any fees and costs
Owner incurs in connection with this Agreement. Reimbursements made to Owner after thirty
(30)days shall include an additional amount equal to eighteen percent (18 %) per annum or one
and one half percent(1.5 %)per month.
10. BINDING AGREEMENT. 'Phis Agreement shall run with the land burdened and
benefitted thereby; and shall inure to the benefit of and be binding upon the heirs, executors,
administrators, successors,and assigns of the Parties.
11. ENTIRE AGREEMENT OF THE PARTIES. This Agreement constitutes the entire
agreement between the Parties and supersedes all prior agreements, offers, acceptances and
understanding of the Parties with respect to the subject matter hereof. All prior and
•
Ditch Modification Agreement Kester Ditch
Page 5 of 7
contemporaneous conversations, negotiations, possible alleged agreements, representations,
covenants and warranties concerning the subject matter hereof are merged herein.
12. RECORDATION. Following execution of this Agreement by the Parties, the Owner
may cause this Agreement to be recorded in the Pitkin County Clerk and Recorder's Office at the
Developer's expense.
13. COUNTERPARTS. This Agreement may be executed in multiple counterpart
signatures by the Parties, which taken together shall constitute the Agreement between the
Parties. Electronically generated,signed copies of this Agreement shall be treated as originals.
WHEREFORE, the Parties indicate their acceptance of the terms and conditions of this
Agreement by affixing their respective signatures hereto.
Ditch Modification Agreement- Kesler Ditch
Page 6 of 7
OWNER: KESTER DITCH COMPANY,
A Colo . i-Pr r+ralion
-BY
.
Larry Jones, President
STATE OF COLORADO )
) SS.
COUNTY OF PITKIN I
Subscribed and sworn to before me this µday of_March 2018 by Larry Jones as president of
the Kesler Ditch Company.
Witness my hand and official seal. O
My Commission expires: ±pC � qL _. f
No . Public
oesnnacuauur
No1Ly Publ¢-State015023roda
NabryIt iO1)4O15073
My Cvitm naon r4p:m AP 6,3071
Ditch Modification Agreement - Kester Ditch
Page 7 of 7
DEVELOPER: BOARD OF COUNTY COMMISSIONERS,
PITKIN COUNTYn
By: L-Patk r• \�hI/24d
ATTEST:
By -- — _—
STATE OF L...4,V.}Ap I
SS.
COI INTY OFA _ )
Sub be[I 1 sworn to before me this , day of It If l 2018, by
'1 � _ as Chairman o Board of County t Commissioners, Pitkin
Coun 9�
Witness my hand and official seal. t
My Commission expires:_ �� \ � _ ill.
LISA MACDONALD No. 'us l
Notary Pubo
S;ste of Colorado
Notary ID#19924016269
My Commission Expbes 11-18-2020
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CONTRACT
DITCH MODIFICATTION AGREEMENT # ! V( - oiT
This Agreement is dated this (S day of/ •u-+-/-<-/l 70 I $ , by and between the
Kester Ditch Company. a Colorado Non-profit Corporation (as "Owner") and BOARD OF
COUNTY COMMISSIONERS OF PITKIN COUNTY (as "Developer"). Owner and Developer
shall be jointly referred to as the "Parties."
WITNESSETH:
WHEREAS, the Kester Ditch is an incorporated ditch (the "Ditch") located, in part, in
Pitkin County, Colorado:
WHEREAS, Owner is the owner of the easement, structure and appurtenances for the
Ditch;
WHEREAS, Developer, through its Pitkin County Open Space & Trails program, owns
and/or maintains what is known as the Lazy Glen Trail easement and right of way located in
Pitkin County, which trail is more particularly shown in relevant part on Exhibit A ("Lazy Glen
Trail");
WHEREAS, Developer desires to install paving and construct other improvements on
the Lazy Glen Trail as such Trail crosses over an existing 48 inch ADS culvert within the Ditch
("Improvements");
WHEREAS, Owner wishes to protect its property interests in the Ditch easement and
structure rights from any and all harm, injury or increased maintenance or repair expenses that
may be caused by said Improvements on, over or within the Ditch easement.
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, and the mutual promises and covenants contained herein, the Parties agree as
follows:
1. PREAMBLE. The Parties recognize that the Ditch easement and structure rights are
valuable property rights, which must be protected from harm that may result from Developer's
construction of the Improvements within and upon the Ditch easement. The Parties further
recognize that this Agreement establishes contract duties, rights, and remedies for the purpose of
protecting property rights in the Ditch easement, structure, and water rights delivered thereby
and it is the Parties' express expectation that the Improvements be constructed, and ultimately
function, in a safe and proper manner so as to accomplish the above stated purposes of this
Agreement. Developer acknowledges and agrees that the Ditch as realigned, altered, culverted
and/or improved must be capable of handling up to twenty-five (25) cubic feet per second of
flow through the length of the altered Ditch, as that is the historic and decreed capacity of the
Ditch at the subject location on the Ditch.
2. APPROVAL OF IMPROVEMENTS AND CHANGES. Owner hereby approves the
plans for the Improvements that are shown on the drawings and plans for the Kester Ditch paved
1111111IIIIIIIIIIIII 1E1111111111 11111 Hi II1111111111111IIIII111111111111
RECEPTION#: 647139, R: $0.00, D:$0.00
DOC CODE: AGREEMENT
Pg 1 of 9, 05/07/2018 at 10:09:08 AM
Janice K.Vos Caudill, Pitkin County, CO
Ditch Modification Agreement -Kesler Ditch
Page 2 017
trail crossing prepared by SGM including Sheet 1 dated 7/24/17 and Sheet 8 dated 7/31/17 (as
annotated by Pitkin County on 1214/2017),as attached hereto and incorporated herein as Exhibit
A, subject to the following technical condition of approval: The existing cover Over the Ditch
pipe must be removed down to the top of pipe for 3 feet either side of the pipe and replaced with
Class 6 aggregate base course compacted to 95 r/a per ASTM D698: and there must be a
minimum of 12 inches of compacted cover over the pipe including the 3dneh asphalt layer.
Together, Exhibit A and the above condition of approval constitute and define the approved
"Improvements" and form a material basis for this Agreement. Owner reserves the right to
review, approve, disapprove, or approve with conditions, any changes, updates, modifications, or
revisions to the attached Exhibit A. regardless of whether such changes arc material. substantial
or minor in nature, prior to any realignment or construction work relating to the changes; and any
such approved changes and construction items shall thereafter be incorporated within the
meaning of"Improvements" as used in, and for purposes of, this Agreement. Owner shall not
unreasonably withhold its approval of any changes, updates, modifications, or revisions, and
shall provide Developer with its approval or its reasons for denial thereof in writing within thirty
(30) days following receipt of Developer's written change proposal and request for approval.
However, Owner reserves the right to require restoration, alteration, or remedial efforts as a
condition of its approval. In the event Owner requires assistance from an engineer and/or an
attorney to review any changes, updates, modifications, or revisions to Exhibit A, Developer
shall pay the costs of the legal arid/or engineering services. Owner reserves the right to object to
such Improvements, as installed, and to require remedial action be taken by Developer, at
Developer's expense, including, but not limited to. altering or removing the Improvements, in
the event the Improvements do not operate to provide and allow for the historic delivery of water
in quantity,quality and rate of flow.
3. TIMELY AND PROPER COMPLETION OF IMPROVEMENTS.
A. Developer must accomplish all work relating to the Improvements at times that do
not interfere with the Ditch's operations and that are outside of the Ditch's historic irrigation
season of April 1 through November 25 of each year, unless Owner agrees otherwise in writing.
Developer may not tap into, interfere with operation of or disturb the existing Ditch between
April 1 and November 25, unless Owner agrees otherwise in writing. The Parties agree that time
is of the essence in completing the proposed Improvements outside the irrigation season.
B. Developer must accomplish all construction work relating to the Improvements in
a workmanlike manner and in strict conformity with the plans attached as Exhibit A, including
the condition for approval (and/or any changes, updates, modifications, or revisions thereto that
have been approved by Owner pursuant to Paragraph 2 above). Developer must also ensure that
the Ditch's carrying capacity (25 c.f.$), volume of water flow and velocity of water flow will he
maintained at values consistent with the values existing prior to the construction work. Upon
completion of the Improvements, Developer's professional engineer shall certify in writing to
Owner that the work was accomplished in a workmanlike manner and in strict conformity with
the plans/conditions for the approved Improvements. Upon receipt of such certification, and
Ditch Modification Agreement—Kesler Ditch
Page 3 of 7
within a reasonable time period based on the ability to observe the actual performance of the
Improvements (as constructed) under a full flow and other various scenarios during the irrigation
season, Owner shall undertake a test and inspection of such construction and improvements, and
provide to Developer notice of approval of such construction; or notice of any construction items
that do not substantially comply with the approved Improvements plans or which do not perform
as intended under this Agreement. Upon receipt of such notice, Developer shall undertake to
fully correct such items which do not comply substantially with the approved Improvements
plans or intended performance of the Improvements. Upon any such correction, Developer shall
undergo and comply with the certification and inspection process provided for above as if under
the original construction completion. Developer and its successors and assigns warrant the
performance of the Improvements for two irrigation seasons.
4. ACCESS TO INSPECT THE IMPROVEMENTS. In addition to Owner's easement
rights, Owner, its engineers and attorneys are granted a right of reasonable ingress and egress
access across Developer's property, to inspect the Improvements; or exercise its other easement
rights or rights granted by this Agreement.
5. MAINTENANCE AND REPAIR OF THE IMPROVEMENTS. Developer shall
operate, maintain, repair or replace the Improvements (referred to herein as "O, M & R") at
Developer's sole expense. Provided, however, the Owner does not waive or relinquish any and
all rights and appurtenant rights of access and 0, M & R to the Ditch. Owner shall be permitted
to use such equipment and vehicles, including heavy equipment and machinery, that arc
reasonable and customary to exercise its O. M & R rights under this paragraph.
Developer further agrees it shall be responsible for any and all repairs to the Improvements
within and upon the Ditch easement necessary to avoid or mitigate any damage to the Ditch
structure, adjacent property, or property down-gradient, or any malfunction in water delivery
through the Ditch,as a result of the Improvements within and upon the Ditch easement.
In the event Developer fails to 0, M & R the Improvements, then Owner shall notify Developer
in writing, which notice shall specify with particularity the nature of the failure to 0, M & R. In
the event Developer, after said notice, fails to remedy the failure to 0, M &R within twenty-four
(24) hours after its receipt of such notice, then Owner may proceed to cure said failure and the
costs of such 0, NI &R performed by Owner shall be reimbursed by the Developer.
Developer agrees that it shall reimburse Owner within thirty (30) days for any expenses Owner
incurs for 0, M & R of the Improvements. Reimbursements made to Owner after thirty (30) days
shall include an additional amount equal to eighteen percent (18 %) per annum or one and one
half percent(1.5 %) per month.
Owner shall be permitted to alter or remove all or any portion of the Improvements, at
Developer's sole expense, if such action is reasonably required for Owner to deliver water in
historic timing,quantity, quality and manner through the Ditch.
Ditch Modification Agreement—Koster Ditch
Page 4 of 7
6. ACKNOWLEDGMENT OF IMPLIED EASEMENT. Developer acknowledges that
Owner owns a prescriptive or implied easement for the Ditch in its current location across the
Lazy Glenn Trail. As partial consideration for this Agreement, Developer hereby further
acknowledges and confirms to Owner such easement pursuant to construction of the subject
Improvements for the purposes of accessing (including ingress and egress), inspecting,
excavating, installing, operating, using, cleaning, maintaining, repairing, relocating, improving,
replacing and conveying water and water rights through the Ditch.
7. LIEN WAIVER. Developer expressly agrees to waive its (and its contractors and
subcontractors) rights to any lien(s) arising out of the construction of the Improvements within
the Ditch easement and to obtain lien waivers, in a form acceptable to Owner, from all other
laborers or materialmen.
8. BREACH/REMEDIES. If either Party takes legal action to enforce or defend any part
of this Agreement, the prevailing Party shall be awarded its reasonable attorneys' fees and costs,
including reasonable attorney fees to establish and collect upon such award. This Agreement
does not alter the legal rights and liabilities incumbent on any of the Parties under applicable
statutes and case law concerning malfunction or failure of the Ditch.
9. REIMBURSEMENT OF COSTS AS PARTIAL CONSIDERATION. As partial
consideration for this Agreement and the consent to the ditch alteration granted, Developer shall
reimburse Owner for all fees and costs incurred in connection with this matter, including, but not
limited to, fees and costs related to the review of the proposed Improvements and drafting and
negotiation of this Agreement, upon execution of this Agreement. Developer shall have the
continuing responsibility to timely pay all such additional fees and costs incurred by Owner in
connection with this Agreement, including but not limited to legal, engineering, surveying and
construction fees and costs. Owner shall document and provide to Developer copies of all
applicable bills, invoices, statements, etc. for which Owner seeks reimbursement under this
paragraph.
Developer agrees that it shall reimburse Owner within thirty (30) days for any fees and costs
Owner incurs in connection with this Agreement. Reimbursements made to Owner after thirty
(30) days shall include an additional amount equal to eighteen percent (18 %) per annum or one
and one half percent (1.5 %) per month.
10. BINDING AGREEMENT. This Agreement shall run with the land burdened and
benefitted thereby; and shall inure to the benefit of and be binding upon the heirs, executors,
administrators, successors, and assigns of the Parties.
11. ENTIRE AGREEMENT OF THE PARTIES. This Agreement constitutes the entire
agreement between the Parties and supersedes all prior agreements, offers, acceptances and
understanding of the Parties with respect to the subject matter hereof. All prior and
Ditch Modification Agreement -Kesler Ditch
Page 5 of
contemporaneous conversations, negotiations, possible alleged agreements, representations,
covenants and warranties concerning the subject matter hereof are merged herein.
12. RECORDATION. Following execution of this Agreement by the Parties, the Owner
may cause this Agreement to be recorded in the Pitkin County Clerk and Recorder's Office at the
Developer's expense.
13. COUNTERPARTS. This Agreement may be executed in multiple counterpart
signatures by the Parties, which taken together shall constitute the Agreement between the
Parties. Electronically generated,signed copies of this Agreement shall he treated as originals.
WHEREFORE_ the Parties indicate their acceptance of the terms and conditions of this
Agreement by affixing their respective signatures hereto.
Ditch Modification Agreement—Kester Ditch
Page 6 of 7
OWNER: KESTER DITCH COMPANY,
A Colo '. - e k a.-Pr. . ration
41 ,____--,____
Larry Jones, President
STATE OF COLORADO )
) SS.
COUNTY OF PITKIN )
Subscribed and sworn to before me this LS_r"day of Ha i h 2018 by Larry Jones as president of
the Kester Ditch Company.
Witness my hand and expires:
'''11
41 seal /)
My Commission expires: �Ir, (.:)/ .Q-U
Nota Public
Ie DEBRA REDMOUNT
Not2ry PEuORIA-Stale of Colorado
Notary JD 20174015013
My Commission Expires Apr 6.2011
Ditch Modification Agreement—Kester Ditch
Page 7 of 7
DEVELOPER: BOARD OF COUNTY COMMISSIONERS,
PITKIN COUNTY/C
By: ! �I� XG-il241.
ATTEST:
Bv: 1
STATE OF (1l'.l1X1,
SS.
COUNTY OF
Subseribet 1 sworn to before me this day of r 2018, by
\! , , t % '� , as Chairman o Board of County Commissioners, Pitkin
Coun y. 1
Witness my hand and official seal l
My Commission expires: '\ 2 L^�I - h p
LISA MACDONALD No u L
Notary Public
State of Colorado
Notary ID#19924016259
My Commission Expires 11-18-2020
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