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HomeMy WebLinkAboutbocc.con.147.2018 - BOCC RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS(`BOCC") OF PITKIN COUNTY, COLORADO,APPROVING THE ALEXIS ARBANEY DITCH MODIFICATION AGREEMENT CONTRACT RESOLUTION NO. Ofi -2018 # / Y7 ) o RECITALS: (1-1—,-(co. 1020 ) 1. Pursuant to Section 2.8.4 (Actions)of the Pitkin County Home Rule Charter ("HRC"), 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 Rio Grande Trail links Roaring Fork Valley communities starting in Glenwood Springs and continuing 42 miles to Aspen. Pitkin County OST maintains the Rio Grande Trail from Emma,at the county line, to its ends at the Aspen Post Office. 5. The Rio Grande Trail Management Plan was adopted in May 2015 to guide the OST staff in improvements and management of the trail including the realigning of the hard-surface trail back onto the railroad grade between the Arciero Trailhead and the junction with the Basalt Old Snowmass Trail. 6. The section of the Rio Grande Trail to be improved crosses over the Alexis Arbaney Ditch. 7. The Alexis Arbaney Ditch Company requires a Ditch Modification Agreement to make improvements to the ditch and complete the trail connection. 8. OST staff, Pitkin County Attorney, and Alexis Arbaney Ditch Company have agreed to the form of the Ditch Modification Agreement. 9. The BOCC finds 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 Alexis Arbaney Ditch Modification Agreement and authorizes the Chair to sign on behalf of the county. 1 1111111 1111111111 11111 11111 11111 VII111111111111111111111 III RECEPTION#. 647140, R. $0.00, D: $0.00 DOC CODE. RESOLUTION Pg 1 of 10,05/07/2018 at 1009:09 AM Janice K.Vos Caudill, Pitkin County,CO TNT ODU ED,READ AND ADOPTED ON THE 9r•au DAY OF 1)/ad ( 2018. ATTEST: BOARD OF COUNTY COMMISSIONERS By /_ 1.I/ '1 / Jdi ' By: Lt/Otta— Jea - e Jones Patti Clapper,Chair De• County Clerk Date: 03-d8- ' 18 APPROVED AS TO FORM MANAGER APPROVAL --- John Ely, County Attorney Jon Penitock, County Manager 2 DITH MODIFICATION�I" `AGREEMENT Agreement is dated this jet— This / day of /7421t1) , 2018, by and between the Alexis Arbaney Ditch Company, a Colorado Non-profit Corporation ("Owner") and BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY ("Developer"). Owner and Developer shall be jointly referred to as the"Parties." WHEREAS, the Alexis Arbaney 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 Rio Grande Trail easement and right of way located in Pitkin County, which trail is more particularly shown in relevant part on Exhibit A ("Rio Grande Trail"); WHEREAS, Developer desires to replace and realign an existing culvert within the Ditch section crossing under the Rio Grande Trail and install paving and construct other improvements on the Rio Grande Trail as such Trail crosses over 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 operational expenses that may be caused by the Improvements on, over or within the Ditch easement. NOW THEREFORE, for good and valuable consideration, the receipt of which is acknowledged, and the mutual promises and covenants contained in this Agreement, the Parties agree as follows' 1. PREAMBLE. The Parties recognize that the Ditch casement 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 and/or improved must be capable of handling up to 10 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 dated 12/4/2017, as attached hereto and incorporated herein as Exhibit A. Exhibit A is incorporated into the definition for"Improvements"and forms a material basis for this Agreement. Owner reserves the Ditch Modification Agreement—Alexis Arbaney Ditch Page 2 of 6 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 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 (or any changes, updates, modifications, or revisions thereto that have been approved by Owner pursuant to the paragraph above). Developer must also ensure that the Ditch's carrying capacity (10 c.f.$), volume of water flow, velocity of water flow, and amount of water seepage (if and to the extent the Ditch remains an open structure) shall 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. I Jpon receipt of such certification, and 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. Ditch Modification Agreement—Alexis Arbaney Ditch Page 3 of 6 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 maintain, repair or replace the Improvements (referred to in this Agreement as "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, operation, maintenance, repair and replacement 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 such maintenance 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 M & R the Improvements, then Owner shall notify Developer in writing, which notice shall specify with particularity the nature of the failure to M & R. In the event Developer, after the notice, fails to remedy the failure to M & R within twenty-four (24) hours after its receipt of such notice, then Owner may proceed to cure the failure and the costs of such 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 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 and reconstruct such, 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. 6. ACKNOWLEDGMENT OF IMPLIED EASEMENT. Developer acknowledges that Owner owns a prescriptive or implied easement for the Ditch in its current location across the Rio Grande Trail. As partial consideration for this Agreement, Developer hereby further acknowledges and confirms to Owner such easement in its new alignment 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 Ditch Modification Agreement Alexis Arbaney Ditch Page 4 of 6 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 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 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- Alexis Arbaney Ditch Page 5 of 6 OWNER: Alexis Arhaney Ditch Company, A Colorado Non-Profit Corporation B • :arty Jones,Preside r STALE OF COLORADO SS. COI TTY OF PITKIN Subscribed and sworn to betbre me this is day ofhiD I:X'1 2018 by Larry Jones as president of the Alexis Arhancy Ditch Company. Witness my hand and official seal. M Commission expires: - u1 ,12--f • Notary Public DEPAA REOMOIINT [SIGNATURE PAGE BELOW I Noe. tII State& oro:Ado Notary y iD 2017401541', M y Cuf1Ti55IOa Exnnu Apr 6 MI Ditch Sloddication Agreement Alexis Arbaney Ditch Page 6 of 6 DEVELOPER: BOARD OF COUNTY COMMISSIONERS, PITKIN COUNTY k iii By: (A.., Otf /m ATTEST: _ By STAFF OI `,, '\ d ) SS. COUNTY OF - ) IY-'• Sub- "be" . sworn to before me this h day of s 112018, by ' ,�j"�' -eve' as Chairman of Board of County t ommissioners, Pitkin Count . Witness my hand and official seal. 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At:_ - vena;'y, ; e Beim'ttt Sari j+' a fi. a g.S. a �.:sg n.,;': ; , l 5 a s 'a 4 ire KP s xeq¢ p4=. � -t, ss' £ s - .AF s , $ [ s st g145 • -;:s;aasi'.K„ `55 p,_.,aS74se- Sa 4 - i - - J'1 ,37]-^, �'s86 P._ i; ; - §=S w. ,,,„1..4. l';“„4-5,g'. s-s s.F- iia x?'" =o 'aF'`v'S-�y h: '! _ <.tgl .Y_ta[ =4k._ C: S9:4e, Ir,A "I - ash=='vs:._'s 9'_5'=' -t' _ - CONTRACT DITCH MODIFICATION[AGREEMENT /"(7 -.)- b/ `6 This Agreement is dated this /5 day of I k^C'}_ .2018, by and between the Alexis _Arbaney Ditch Company,, a Colorado Non-profit Corporation ("Owner") and BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY ("Developer"). Owner and Developer shall be jointly referred to as the"Parties." WHEREAS, the Alexis Arbaney 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 Rio Grande Trail easement and right of way located in Pitkin County, which trail is more particularly shown in relevant part on Exhibit A ("Rio Grande Trail"): WHEREAS, Developer desires to replace and realign an existing culvert within the Ditch section crossing under the Rio Grande Trail and install paving and construct other improvements on the Rio Grande Trail as such Trail crosses over 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 operational expenses that may he caused by the Improvements on,over or within the Ditch easement. NOW THEREFORE, for good and valuable consideration, the receipt of which is acknowledged, and the mutual promises and covenants contained in this Agreement, the Parties agree as follows: 1. PREAMBLE. The Parties recognize that the Ditch easement and structure rights are valuable property rights, which must he 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 Mated purposes of this Agreement. Developer acknowledges and agrees that the Ditch as realigned, altered and/or improved must he capable of handling up to 10 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 dated 12/4/2017, as attached hereto and incorporated herein as Exhibit A. Exhibit A is incorporated into the definition for"Improvements"and forms a material basis for this Agreement. Owner reserves the 113111111H 11111 111IIIII!11111IflhuliMIIIII111111111 RECEPTION#:647141. R:$0.00. D: $0.00 DOC CODE.AGREEMENT Pg 1 of 8.05107/2018 at 10:09.10 AM Janice K Vos Caudill, Pitkin County.CO Ditch Moddicanon Agreement—Alexis Arbaney Ditch Page 2 of 6 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 I 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 I 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 (or any changes,updates,modifications, or revisions thereto that have been approved by Owner pursuant to the paragraph above). Developer must also ensure that the Ditch's canying capacity (10 c.f.$), volume of water flow, velocity of water flow, and amount of water seepage (if and to the extent the Ditch remains an open structure) shall 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. Upon receipt of such certification, and 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. Ditch Modification Agreement Alexis Arbaney Ditch Page 3 of 6 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 maintain, repair or replace the Improvements (referred to in this Agreement as "M & R") at Developer's sok expense. Provided, however, the Owner does not waive or relinquish any and all rights and appurtenant rights of access, operation, maintenance, repair and replacement 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 such maintenance 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 casement. In the event Developer fails to M & R the Improvements, then Owner shall notify Developer in writing, which notice shall specify with particularity the nature of the failure to M & R. In the event Developer. after the notice, fails to remedy the failure to M & R within twenty-four (24) hours after its receipt of such notice, then Owner may proceed to cure the failure and the costs of such 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 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 and reconstruct such,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. 6. ACKNOWLEDGMENT OF IMPLIED EASEMENT. Developer acknowledges that Owner owns a prescriptive or implied easement for the Ditch in its current location across the Rio Grande Trail. As partial consideration for this Agreement, Developer hereby further acknowledges and confirms to Owner such easement in its new alignment pursuant to construction of the subject Improvements fnr 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 Ditch Modification Agreement Alexis Arbaney Ditch Page 4 of 6 laborers or materialmen S. 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 Ices 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 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. ibis Agreement shall run with the land burdened and benefitted thereby; and shall inure to the benefit of and he 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 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- Alexis Arbaney Ditch Page 5 of 6 OWNER: Alexis Arbaney Ditch Company, A Colorado Non-Profit Corporation Bar —4101- arty Jones, Presider. STATE OF COLORADO ) SS. COUNTY OF PITKIN Subscribed and sworn to before ntc this 1)' day of P?OICh 2018 by Larry Jones as president of the Alexis Arbaney Ditch Company. Witness my hand and official seal. My Commission expires: A-pr. 6,2.02-I Notary P blit DEBRA aEDMOUNT [SIGNATURE PAGE BELOW! +zaryNbrr aa'eo<Co'-pt, Notary ID 20174015023 My Ccrnmissmn Expires Apr 6,2021 Ditch Modification Agreement Alexe,Arbaney Ditch Page 6 of 6 DEVELOPER: BOARD OF COUNTY COMMISSIONERS, PITKIN COUNTY By:_ (47QA AI IEST: By: STATE OF i 1 'ti ) ) SS. COUNTY OF S%% \ & _ ) Sub- tibc sworn to before me this �� day of A ={J _ _ 2018, by 4:n \' ••• , as Chairman of Board of County I,ormnissioners, Pitkin Count . Witness my hand and official seal. 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