HomeMy WebLinkAbout20110233.tiff Merino Contnration 608 E Harrnany Fli0e 203,
Fed Cota CO 8052'5
Group LLC Ttinameme
end bdvo stiTaoloorn
AugLst 2 2C,3c
CoLnt, Pia-ling Department
Gree;ey l.Jr;;fat u
To 1rvr:om it May Corcerr;
Tnis •otter .LLIcJRu,^is o,vnecsnip of water snares by Menno Conservation Group, LLC In
accordance ::ith a proposed 9 lot development known as Loveland Peaks PUC, Menno
Conseriatrur• Grow; LLC is . hing to ass:ur; 1025 shares of Handy Ditch Company to the
homerwdnors assa;:.ation organized to mantaln the green space in our proposed
development A copy c' the Handy D:ch Company share certificate 4103 for three shares is
enclosed We w.'.ui propose to re-issue 025 shares in the name of the homeowners
associa.10rI UV,..)I1 final Flat approvatirez•cnng cf the RUD
Histoncally '1 ." shares of Ha'ri., D:cr C Orr oan, ,, ..i.'. e C aocL: 2 to 4 acre-feet of
available. wary Jeuenct rvj upon me annual all,:tm n! zefirect 1^e d t r "1:[Hn1 basec
On about Si ac t- if 7 eri spa.ce ir•mt initluang Jet r ;n 1 su a e Oe ie !ra'
(i F :;traies will provide adequate IRr aiipn .,ater to estani 2a:'✓e grasses r _ ]'cc..
5p:icee 3k-Ds, ; nd to sllppienient watenna Cf these areas OUrin7 dry. ;=a 0.75
Sir 1cerely•
•
f'.uifnit 1. Krri';.;
M:ar: it nr LLC
2011-0233
z..i}I s:ei Y :iI 1'If) . i:l;'} ,.{,l .a "F ! 6 'l!iT5 ls,f t`75 ,,,.,,-,_.,,,,,, E,„,,,,,, ,„ ,..,,,,...„,„., ,,„ ,:, 1,. ICJ',.'
't; f1 4 1 U 3
t l 1111
THE HANDY DITCH COMPANY
- /
. ;" ! I ':l Hfli .4 1. },( 11 11 1,• ,11 .. ("011 1:.1G "`. :":47)0_444, 0'. \t 31
lLjilf; 15 hi I I L _'t'- _ -.._ _L . 3f_-'--1 :r , '.:. ,
i .17• I !t<if _
l• ri . i it it .•rl ,
d . k . < , f , . . . - T-Ii-I.,. .- . .. * * e4 4 A
,I I .,Ial.,l ',t I.
•
.1 in ti I ,. •.cif>'t l)ITi_I-I COMPANY. iii. ,1, I,0I.-i. .,;.1< [,.,,,.
. ..i is I', r• ,., "I ik. r "rutc,u•.. ill h.-r=..n 0r I-n3 olinl nrv, ON ..I ->. iole r I.: lir:. I r•Itria.l Ir•
.. . I
'..1 yrfrl.l In 1 I 1 r HiA,ut
'F .F{:.. '51 I I'r.-J}7 t it 1 f t }. ti 1 YI F + Li
W 1...... . _.L... i .._'._ '.' ' .. I r. \ i, {:4'E Jii,`fj- :..c )rF' ..i �k;:�F F Si -i.'f:'bt t j,(. -i.>FI inl'+' G•:i'Y 1^F!Q....12 Y '.
S
11
• e Casseday Creative Designs, LLC
,.. 55 South Elm Avenue, Suite 210
1-'Vir Eaton, CO 80615
Michelle Martin
Weld County Dept. of Planning July 21, 2008
4209 CR 24.5
Longmont, CO 80504
RE: Twin Peaks at Iris Lane PUD / Ditch Agreement
Michelle,
According.to Weld County Code; Article V, Sec. 27-5-30, I.
"A copy of an agreement with the owner of any ditch located on or adjacent to the
site, OR shall provide written evidence that an adequate attempt has been made
• to mitigate the concerns of the ditch owners. The agreement shall stipulate that
ditch activities have adequately been incorporated into the design of the site. If
such agreement cannot be reached, the applicant shall present evidence that
an adequate attempt to reach such-agreement has been made."
The owner's of Twin Peaks at Iris Lane, Lot C of AmRE-3983, Section 5,
Township 4N, Range 68W, Weld County, Colorado, have made numerous
attempts to reach an agreement with the Consolidated Home Supply and Handy
Ditch concerning our proposal to subdivide the property into a 9-lot Subdivision.
The ditch currently has a 60' (30' each side of centerline) non-exclusive
easement that was recorded December 7th, 1965. The ditch company has
requested a 100' easement (50' from centerline) or 25' from top of bank exclusive
easement. An exclusive easement is not possible because of recorded oil and
gas and farm access easements that fall within the proposed area. My client has
offered a non-exclusive 50' from centerline easement explaining that the other
easements are currently in place. Along with the exclusive easement request the
Consolidated Home Supply and Handy Ditch Company has insisted that we
obtain agreements for them from other surrounding property owners,
indemnification from any damage caused by their ditch and employees, and
reimbursement for legal fees and engineering fees.
Casseday Creative Designs, LLC
Architecture - Pimeni ng - falcon mental Compliance - Graphic Design
• (970) 454-8740 - (970) 454-8742 fat
nu,il:mhh iiC.k ..h JCYrnt,m P, ,g,, nn, - „unr.Cnnsr,I.it C, :n tindD.siyn,.,
• I have compiled a correspondence timeline to show "evidence that an
adequate attempt to reach such agreement has been made".
January 23, 2008
Burt Kross owner of Merino Conservation Group, LLC, Robb Casseday & Linda
Hulse of Casseday Creative Designs, and Delbert Helzer of the Consolidate
Home Supply and Handy Ditch met with the Law firm of Starr and Westbrook to
discuss the proposed 9-Lot PUD, Twin Peaks at Iris Lane. Mr. Kross opened the
meeting addressing the ownership change on the site to Merino Conservation
Group, LLC. We then presented the attached drawing as an exhibit of where the
requested easement would lie. We showed that the requested 50' would include
the Oil and Gas road and Farm Access to the property to the east. Mr. Helzer
requested that we contact their engineer Brian Zick with TEC to review the
proposed drainage plan at our expense. Mr. Kross agreed to send the drainage
report for review.
February 26, 2008
We received a letter from Brian Zick of TEC engineering, stating that the
proposed drainage plan will not impact the Home Supply Ditch and would
recommend approval to Weld County. A copy of that letter is attached.
• April 28, 2008
Linda Hulse of Casseday Creative Designs, LLC contacted Mr. Starr of Starr and
Westbrook by email to request moving forward towards the agreement. Email
attached.
Mr. Starr replied with the standard agreement addressed to the wrong owner and
encompassing other properties.
Linda Hulse of Casseday Creative Designs, LLC responded that he had the
incorrect ownership and properties.
Mr. Starr responded that the Assessor's information did not agree with what Ms.
Hulse had stated and that all three parcels are in common ownership and all
affect the ditch and should be included.
Linda Hulse emailed current deed information showing Merino Conservation
Group, LLC as owners of Lot C.
Casseday Creative Designs, LLC
Architecture — Planning — Environmental Compliance— Graphic Design
• (970)454-8740 .`.,(970) 454-8742 fax
.it nhhGVCn—e.luy<. n,ivenvsign uarm.Cnc.e.Lnie:rr.,orr,n.c.ynn
•
• May 7th, 2008
Linda Hulse emailed Mr. Starr inquiring of the status of the agreement. Email
Attached
May 8th, 2008
Mr. Starr emailed that he had been out of the office. Email attached.
May 12th, 2008
Mr. Star emailed a revised Contract still requesting other property owner
signatures. Contract attached.
Linda Hulse phone Mr. Starr to discuss the confusion on the property owner's.
He stated that since the property was once owned by the other property owners
that he thought they should have to sign the agreement. Ms. Hulse explained
that the only property under our control was Lott and that was the only property
in the PUp proposal. He said that he wanted to ask the other property owners.
Email attached.
May 14th, 2008
• After discussion with Burt Kross, Ms. Hulse emailed Mr. Starr and requested the
exclusive wording be removed for the original reasons stated at the first meeting
and that a statement that existing crossings are exempt from the $5000.00
charge.
At this time Mr. Kross was open to trying to get an agreement that he could take
to the other surrounding property owners and attempt to get agreements.
June 2, 2008
Mr. Starr sent over a new Contract saying changes had been made. He made
the crossing change but not only did not remove the exclusive wording also
added a line to specifically exclude Oil and Gas access. Contract attached.
Casseday Creative Designs, LLC
Architecture — Planning — F..nvirottmental Compliance — Graphic Design
• I (970) 454-8740 — (970) 454-8742 fax
.nit:ronhGbe»s,.duyt.rnti+anagn ,o»e - .».G.,rdnye'r,.n ;rrn...y» . ,.,
• Merino Conservation Group, LLC feels the Consolidated Home Supply and
Handy Ditch has not cooperated in any attempt to come to an agreement and in
fact has been antagonistic. There requests for unattainable exclusive easement,
surrounding property cooperation, indemnification from any damages caused by
there ditch, and request for payment of unlimited legal fees are not reasonable
requests. We feel we have made reasonable attempt at an agreement with no
cooperation from the ditch company. There current 60' non exclusive easement
is adequate and there attempt to extort more property and unreasonable
conditions will not be accepted by Merino Conservation Group, LLC.
Sincerely,
Linda Hulse
Project Manager
Casseday Creative Designs
•
Casseday Creative Designs, LLC
Architecture — Planning — Environmental Compliance— Graphic Design
• .or, r (970)454-8740 f n,- (970) 454-8742 fax
r,i: -.,o-nea(n ,reu,Cr,„m•,m•.,x� 'C„ -.•mr,jCn.nt r,n.:.,,.,, -
File No: 08-013.05 2310 East Prospect
Fort Collins, CO 80525
• ph: 970.484.7477
fa: 970.484.7488
February 26, 2008 www.tec-engrs.com
Consolidated Home Supply Ditch and Reservoir Company
1650 West 8`a Street
Loveland, CO 80537
ATTN: Mr. Delbert Helzer
RE: Twin Lakes at Iris Lane
Dear Mr. Helzer:
I received information from Wohnrade Civil Engineers, Inc., for the Twin Peaks at Iris Lane
development. The information includes a Drainage Design Consideration Report. A copy of the
report is included. This development is located south of the Home Supply Ditch east of County
Road 3. The proposed development includes 9 single family lots on 2 acres each. The total
development is 34.55 acres.
All of the developed flows from the building lots is conveyed to 2 detention ponds. Detention
Pond No. 2 is located on the north side of the property and Pond No. 1 is located on the east side
of the property. The pond will detain all stormwater in excess of the 5 year historic flows. Pond
No, 1 will release to the east along the historic tailwater drainage along the south side of the ditch.
• The developer has proposed to cross a private concrete ditch by installing a siphon on the ditch. It
is our understanding that this has been approved by the affected property owner. The release of
water from Detention Pond No. I will not be discharged into the Home Supply Ditch.
Based on our review we feel that the proposed plan will not impact the Home Supply Ditch and
would recommend approval to Weld County. We would request that any final drawings be
submitted to assure the improvements are consistent with the Drainage Plan. If you have any
questions or concerns, please do not hesitate to call.
Sincere
J. Bria ick, P.E.
Principal
The Engineering Co.
cc: Randolph Starr
Linda Hulse, Casseday Creative Consultants
Attachment: Preliminary Drainage Report
THE ENGINEERING COMPANY
I
• AGREEMENT
This Agreement (the Agreement), is between the CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY(Ditch Company)and TWIN VIEW ESTATES,LLC,
Stephen C. Greenlee, 3555 Stanford Road, Suite 04, Fort Collins, CO 80525 and PURCELL
CONSERVATION GROUP, LLC, Mark A. Kross, 7233 Whitworth Ct, Fort Collins, CO
80528, (Landowner), and is upon the following terms:
1. Landowner is the owner of all of the property known as the Lots A,B and C of RE-
3983 and 3984; being a portion of the North '/2 of the South ''A and the NW1/4 of Section 5,
Township 4 North,Range 68 West of the 6`"P.M.,Weld County,Colorado,a copy of which is
attached hereto as Exhibit A (the "Subdivision").
2. Landowner desires to obtain approval of the Ditch Company for certain matters
required by the Weld County,Colorado,Board of County Commissioners relating to the conditional
approval of the Subdivision.The Ditch Company's interests will be benefited by the granting of its
approval through the terms and conditions of this Agreement. Therefore the parties acknowledge
that valuable consideration exists for this Agreement among the parties. Landowner shall pay a
permit fee to the Ditch Company of$5,000.00 for each crossing of the ditch of the Ditch Company
which shall be in addition to all other fees or charges required to be paid by the Landowner to the
Ditch Company under the terms of this Agreement. No crossing of the Ditches of the Ditch
Company is authorized by this Agreement.Landowner shall also reimburse the Ditch Company for
all of its engineering and legal expenses incurred in the review, negotiation and completion of this
• Agreement.
3. Landowner may own assessable share(s) of the Ditch Company which has / have
historically been used to irrigate for agricultural purposes the Subdivision. Landowner desires to
continue to have the Subdivision and open space areas irrigated by water from the ditch of the Ditch
Company. Landowner shall obtain all necessary approvals to be able to use such water for such
purposes.
4. The Ditch Company has a right-of-way for its two ditches and appurtenant facilities
shown on the plat attached hereto.Landowner recognizes and confirms said ownership of the Ditch
Company. Landowner agrees to execute an easement in the form of Exhibit B attached hereto to
have the Landowner confirm and convey the property rights of the Ditch Company. The easement
shall be recorded at the expense of the Landowner along with this Agreement.Landowner grants and
confirms to the Ditch Company an exclusive easement for the Ditch Company's two irrigation
ditches and appurtenant facilities as generally depicted on the drawing of the Ditch Company's
system together with rights of ingress and egress for Ditch Company purposes over and across the
Subdivision.
5. Landowner represents and warrants that Landowner is, on the date of execution of
this Agreement, the sole owner of the Subdivision. Landowner may have lien(s) against the
Subdivision, and Landowner will obtain the written consent and acceptance of all lienholders by
signature on this Agreement prior to its recording. Failure to obtain such written consent and
•
acceptance from all such lienholders shall cause Landowner to be in default under this Agreement.
Page 1
• 6. Landowner will maintain the existing irrigation patterns on the Subdivision,and shall
maintain the quality of water entering the ditch from irrigation,and from runoff from precipitation
and otherwise.There shall be no change made in the rate,amount,point or type of drainage into the
ditch,except as provided in a Final Drainage Plan that has been accepted by Weld County and by the
Ditch Company as provided in this Agreement. Landowner agrees to submit to the Ditch Company
for review a Preliminary and a Final Drainage Plan that shall have been accepted by the Weld
County government. Any changes to the Preliminary Drainage Plan and to the facilities shown or
required by the County and the Ditch Company shall be incorporated into the Final Drainage Plan
and such facilities shall be constructed solely at the expense of the Landowner. Maintenance of all
drainage facilities shall be accomplished by Landowner or Weld County or both.Any facilities that
are not installed or maintained as provided in the Final Drainage Plan shall cause a default under this
Agreement.No facilities that are not described in the Final Drainage Plan and accepted by the Ditch
Company shall be installed. No changes to the Final Drainage Plan shall be made after the Ditch
Company and the County have both accepted the Final Drainage Plan.Landowner agrees that there
may have existed for many years underground drain lines and ditches carrying water across the
properties.Landowner agrees that an easement exists for the underground drain lines and ditches and
Landowner agrees to regularly maintain and repair the lines and ditches on an "as needed" basis
prior to the irrigation season. In the event there is proposed or formed a drainage district under
federal, state or local law or requirement,Landowner agrees to include all of the property with the
boundaries of such district. Landowner and any homeowners association will not cause, permit or
suffer any hazardous material,pollutant or other foreign material to be deposited or discharged into
the Ditch Company's ditch or the water carried in the ditch.The Landowner will immediately notify
• the appropriate governmental agencies and the Ditch Company of any potential or actual such
deposit or discharge by any person.
7. Landowner,and Landowner's successors and assigns,hereby specifically waive all
known or unknown claims,damages,rights of indemnity,rights of contribution or other rights of any
kind or nature for claims, damages, actions,judgments or executions that have arisen or may arise
out of the maintenance,operation or use of the Ditch Company's ditch and easement,including,but
not limited to: flooding due to overflow or breach of the Ditch Company's ditch;washing or erosion
of the ditch bank;cleaning of the ditch and easement by burning or chemical means;and excavation
of the ditch and storage of residue. Landowner, and Landowner's successors and assigns, hereby
agree to indemnify the Ditch Company,its directors,officers and stockholders against any loss from
any claims,demands or actions that may hereafter be brought against any of them as a consequence
of this Agreement or concerning any of the provisions of this Agreement.
8. In any action brought by the Ditch Company to enforce the provisions hereof,
whether legal or equitable, and/or in any action involving Ditch Company and Landowner or any
successor of Landowner whether to enforce the provisions of this Agreement or otherwise,the Ditch
Company shall be entitled to reasonable attorneys' fees as fixed by the court. Venue for all actions
shall be in the Weld County District Court.
9. The provisions hereof shall be deemed independent and severable,and the invalidity
or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the
• validity or enforceability of any other provision hereof.
Page 2
• 10. The terms, covenants, and conditions herein contained shall be binding upon and
inure to the benefit of the successors and assigns of Landowner, the Ditch Company and the
homeowners association,and each of them.The provisions hereof shall constitute covenants rumiing
with the land, burdening and benefiting each and every part of the properties and every interest
therein. In addition,the provisions hereof shall be enforceable in equity as equitable servitudes upon
the land and as covenants in an agreement between owners.This Agreement affects the property and
title of the Subdivision,and this Agreement shall be recorded at the expense of Landowner,and after
recording,the terms,conditions and covenants of this Agreement shall become a covenant running
with the land of the Subdivision. This Agreement shall constitute a benefit and burden on the
Subdivision and this Agreement shall be enforceable by the Ditch Company or any of its
shareholders, or both the Ditch Company and any of its shareholders.
11. The provisions hereof shall be liberally construed to effectuate their purpose of
creating a uniform plan for the development and operation of the Subdivision.Failure to enforce any
provision hereof shall not constitute a waiver of the right to enforce said provision or any other
provision hereof. Whenever used in this Agreement,the singular shall include the plural,the plural
the singular,and the use of any gender shall include all genders.This Agreement shall be construed
under the law of the State of Colorado. Time is of the essence of this Agreement.
12. The following notes shall be inserted by the Landowner into the permanent covenants
affecting the title to the Subdivision or onto the Subdivision plat:
A. The Ditch Company has the authority to cut and remove trees within its right of way
• and it is acknowledged by the owners of the property in the Subdivision that the Ditch Company
will, at an appropriate time, remove any and all such trees on the property. The owners of the
property in the Subdivision acknowledge that the property owners and successor owners may not
plant or otherwise landscape the ditch right of way. The Ditch Company also has the authority to
install and maintain a road along each ditch bank for its purposes.
B. The property owners may not place any fence within the ditch right of way, and
particularly across the right of way; and the property owners shall not to install any gates or fences
near the ditch company right of way without the prior written approval of the Ditch Company.Any
fences approved by the Ditch Company along the ditch easement must be stock-proof to prevent
damage by humans and livestock and other sources to the ditch. There will not be permitted any
livestock watering in the ditch.A chain link type fence should be constructed along the boundary of
the Ditch Company's easement if a fence is to be constructed. Cattle guards instead of gates should
be utilized instead of gates.
C. The property owners acknowledge and understand that there may be subsurface
waters that arise in the area of this development and that there are periods of time when,due to water
flowing within the ditch system and otherwise, that portions of the property receive significant
amounts of subsurface water that is very near to the surface, or resides on the surface. Due to this
problem,the utility of certain portions of the property for construction of structures could potentially
be unavailable. The Ditch Company has no plans to alter its operations as it would cure this surface
and subsurface water issue.
D. The property owners shall maintain the irrigation and drainage patterns existing on
the date of recording of the plat so that the quality of water entering the ditch from irrigation and
• from precipitation and other sources is maintained, and so that there is no change in rate, amount,
Page 3
point or type of drainage into the ditches that will occur. The property owners shall monitor and
• identify any pollutants or other hazardous materials that enter the ditch and should agree to stop any
such deposit in the ditch system.
E. The property owners acknowledge that: 1)No livestock watering,swimming,tubing,
canoeing or other use of the ditch or water in the ditch is allowed; 2) No dumping of refuse,
including but not limited to household garbage, waste materials, grass clippings, tree and shrub
prunings, motor oil, chemicals,pesticides or herbicides is allowed; 3)No pumps for lawn or other
irrigation are allowed in the ditch; 4) No use of the ditch easement for hiking, biking, horseback,
motorcycle, off road vehicles or other motorized or non-motorized vehicle shall be allowed.
F. No crossings of the ditch are permitted without the prior written consent of the Ditch
Company and compliance with the rules, regulations and requirements of the Ditch Company.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement this_day of
, 2008.
THE CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY,a
Colorado mutual irrigation company
By:
President—Minerva Lee
Secretary—Delbert Helzer
• STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing was acknowledged before me this day of ,2008,by Minerva
Lee, as President, and Delbert Helzer, as Secretary of The Consolidated Home Supply Ditch and
Reservoir Company, a Colorado mutual irrigation company.
Witness my hand and official seal.
Notary Public
My commission expires:
• 4
• TWIN VIEW ESTATES,LLC,a Colorado
limited liability company
Landowner
By: Stephen C. Greenlee, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Stephen C. Greenlee as Manager of Twin View Estates, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
PURCELL CONSERVATION GROUP,
LLC,a Colorado limited liability company
• Landowner
By: Mark A. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
• 5
EXHIBIT "A"
• COPY OF SUBDIVISION PLAT
.. / 4+ Jr
•Y 1. % .Y+.. -•.!^ir r ...-,..7.!, 4
• \.
h ,.
J.
I'..-;
R
•
n
5' n y.
.I
n
R a
V
-U w
at
U I r
- t� its**.
•� • 2*,Ss\-*. '..,.
ill or_ .S
Jr•
: y ;.. • nagelnv •,..` . 1
Eft"' '.
.r i� il
1 XI
0 I
•
.. �I
.b . '
k.
,1
Fri,--- ,
•
`0�ly,c r-' _.2.,..., r—
'_ � YAee , • F8 ,y• }gyp
•
•
Y11ddCounty.CObfiAO � o ALT K a 1 K
Iry - - - -
$ aoof
PT SE4 5-4-68 LOT A 2ND AMD REC EXEMPT RE-3984
•
10 °T 0 U PeRc oraeir----1/2- v -___ 0 0 ,,) ,,.-\-- c- k. ---\-oucks_s
C".." .
ill 1
-:Illd -, ^ ��a- 111.11.1:',14"..1
r, 1' ..
Ju •
.Aa ,
•
A d •
S -'tom ! •
y.
y
A
I e"
4.
106I.
it
Illi
II -• �
I, —
s!' s .
i
i
e)
2
•
Ji
• .
•:*-7 C R eta — . .+ . I _.
PT SE4 5-4-68 LOT B 2ND AMD REC EXEMPT RE-3984
ik...) 0, _T__
__a-- ) )O1.\- --Itks— SP- tAAJ2._
o :'ccANcc touc °j
o �c CC
r— e
1/214--......
illil 2
, ...,
hs ,
III ......... .
:.
_.__._._._
0.• \
A l
0 - 1 — -
In
- 41t
A a, .
$ t
z
C.I
D
w-
t •
) Y
Mile
lit
Ili
NI\ ji
, . 1 .7k:-
e.
Ili
6 i_
6''
1
? , p . .. -
_ a
Lk
- _ ``
-- -
1 r
• II
( t.
-_. _. ,. • •
J
... ,f
7 _
.e ` -
-
.
io
at ^ _ r
c Y" i a 9
7:4F.-.17
WA cowar. . . . . _ a 1000 '( -
PT S2NW4 LOT C AMD REC EXEMPT RE-3983
0 3
EXHIBIT "B"
• EASEMENT AND RIGHT OF WAY AGREEMENT
This Easement and Right of Way Agreement, made and entered into as of the day of
, 2008, by and between TWIN VIEW ESTATES, LLC, a Colorado limited liability
company,c/o Stephen C.Greenlee,Manager,3555 Stanford Road,Suite 204,Fort Collins,CO
80525 and PURCELL CONSERVATION GROUP,LLC,Mark A.Kross,7233 Whitworth Ct,
Fort Collins,CO 80528,hereinafter called"Grantor" (whether grammatically singular or plural),
and The Consolidated Home Supply Ditch and Reservoir Company, 1650 West 8th Street,
Loveland, Colorado 80537, hereinafter called the "Company."
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Grantor hereby grants, sells, conveys and transfers to the Company, its
successors and assigns,the sole,exclusive and permanent right to enter,re-enter,occupy and use the
hereinafter described property to construct,reconstruct,inspect,upgrade,increase size or capacity,
operate, repair, maintain, replace, remove and operate one or more open irrigation ditches and/or
pipelines and/or reservoirs for the storage,transmission,distribution and service of irrigation water,
and all above ground and underground and service appurtenances thereto, including metering
stations, vaults, enclosures, identification signs, checks, headgates, dams and other fixtures, over,
across, under and upon the following described land, situate in the County of Weld, State of
Colorado, to-wit:
The Company's "River Ditch",and the Company's"Lake Ditch"on Lots A,B
and C of RE-3983 and 3984; being a portion of the North 1/2 of the South 1/2 and
• the NW 1/4 of Section 5,Township 4 North,Range 68 West of the 6`"P.M.,Weld
County, Colorado;
The easement and right of way for both of the ditches shall be 100 feet wide,being 50 feet on each
side of the center line, or 25 feet from the toe of the ditch on each side, whichever is greater.
Grantor further grants to the Company:
(a) The right to grade the easement area for the full width thereof and to extend the cuts
and fills with such grading into and on the land along and outside of the easement to the extent as the
Company may find reasonably necessary;
(b) The right to support the ditches and pipelines across ravines and water courses with
such structures as Company shall deem necessary;
(c) The right of ingress to and egress from the easement over and across all of the land of
Grantor by means of roads and lanes thereon, if such exists, otherwise by such route or routes as
shall occasion the least practicable damage and inconvenience to Grantor;
(d) The right of grading for, constructing, maintaining and using such roads on and
across the lands as the Company may deem necessary in the exercise of the right of ingress and
egress or to provide access to property adjacent to the land;
(e) The right to install, maintain and use gates and/or cattle guards in all fences which
now cross or shall hereafter cross the easement;
(f) The right to mark the location of the easement by suitable markers set in the ground;
• provided that any such markers remaining after the period of construction shall be placed in fences
1
or other locations which will not interfere with any reasonable use Grantor shall make of the
•
easement;
(g) All other rights necessary and incident to the full and complete use and enjoyment of
the right-of-way and easement for the purposes herein granted.
GRANTOR HEREBY COVENANTS AND AGREES:
(a) That Grantor shall not erect or place any permanent building,structure,improvement,
fence or tree on the described easement, and the Company shall not be liable for their removal if
they are so placed, and Grantor agrees, at Grantor's sole expense to so remove such items.
(b) Grantor shall not diminish the ground cover in the easement or over any water lines
and shall not substantially add to the ground cover in the easement or over the water lines or their
appurtenances.
(c) Grantor shall not grant any other easement, right-of-way, permit or license upon,
under or over said property without the written consent of the Company.
(d) Grantor warrants that Grantor is the owner in fee of the above-described lands and
will defend the title thereto against all claims,and that said lands are free and clear of encumbrances
and liens of whatsoever character, except the following: None
IT IS MUTUALLY AGREED BY THE PARTIES:
(a) Grantor reserves all oil,gas and other minerals in,on and under the above-described
lands,and Grantor shall not grant any right in the surface or otherwise that will materially interfere
• with the rights and privileges herein granted to the Company.
(b) Each and every one of the benefits and burdens of this easement and right-of-way
shall inure to and be binding upon the respective personal representatives,successors,and assigns of
the parties hereto.
IN WITNESS WHEREOF the undersigned has set his hand and seal as Grantor.
GRANTOR
TWIN VIEW ESTATES,LLC,a Colorado limited
liability company, Stephen C. Greenlee, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of , 2008, by
Stephen C.Greenlee as Manager of Twin View Estates,LLC,a Colorado limited liability company,
as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
•
2
• GRANTOR
PURCELL CONSERVATION GROUP, LLC, a
Colorado limited liability company, Mark A.
Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of , 2008, by
Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
•
• 3
• AGREEMENT
This Agreement (the Agreement), is between the CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY (Ditch Company) and MERINO CONSERVATION
GROUP,LLC,Burton C.Kross,6933 Sedgwick Drive,Fort Collins,CO 80525,TWIN VIEW
ESTATES,LLC,Stephen C.Greenlee,3555 Stanford Road,Suite 204,Fort Collins,CO 80525
and PURCELL CONSERVATION GROUP, LLC, Mark A. Kross, 7233 Whitworth Court,
Fort Collins, CO 80528, (Landowner), and is upon the following terms:
1. Landowner is the owner of all of the property known as the Lots A,B and C of RE-
3983 and 3984; being a portion of the North 'A of the South 1/2 and the NW1/4 of Section 5,
Township 4 North,Range 68 West of the 6`h P.M.,Weld County, Colorado, a copy of which is
attached hereto as Exhibit A(the "Subdivision").
2. Landowner desires to obtain approval of the Ditch Company for certain matters
required by the Weld County,Colorado,Board of County Commissioners relating to the conditional
approval of the Subdivision. The Ditch Company's interests will be benefited by the granting of its
approval through the terms and conditions of this Agreement. Therefore the parties acknowledge
that valuable consideration exists for this Agreement among the parties. Landowner shall pay a
permit fee to the Ditch Company of$5,000.00 for each crossing of the ditch of the Ditch Company
which shall be in addition to all other fees or charges required to be paid by the Landowner to the
Ditch Company under the terms of this Agreement. No crossing of the Ditches of the Ditch
• Company is authorized by this Agreement.Landowner shall also reimburse the Ditch Company for
all of its engineering and legal expenses incurred in the review, negotiation and completion of this
Agreement.
3. Landowner may own assessable share(s) of the Ditch Company which has / have
historically been used to irrigate for agricultural purposes the Subdivision. Landowner desires to
continue to have the Subdivision and open space areas irrigated by water from the ditch of the Ditch
Company. Landowner shall obtain all necessary approvals to be able to use such water for such
purposes.
4. The Ditch Company has a right-of-way for its two ditches and appurtenant facilities
shown on the plat attached hereto. Landowner recognizes and confirms said ownership of the Ditch
Company. Landowner agrees to execute an easement in the form of Exhibit B attached hereto to
have the Landowner confirm and convey the property rights of the Ditch Company. The easement
shall be recorded at the expense of the Landowner along with this Agreement.Landowner grants and
confirms to the Ditch Company an exclusive easement for the Ditch Company's two irrigation
ditches and appurtenant facilities as generally depicted on the drawing of the Ditch Company's
system together with rights of ingress and egress for Ditch Company purposes over and across the
Subdivision.
5. Landowner represents and warrants that Landowner is, on the date of execution of
this Agreement, the sole owner of the Subdivision. Landowner may have lien(s) against the
Subdivision, and Landowner will obtain the written consent and acceptance of all lienholders by
•
signature on this Agreement prior to its recording. Failure to obtain such written consent and
Page 1
• acceptance from all such lienholders shall cause Landowner to be in default under this Agreement.
6. Landowner will maintain the existing irrigation patterns on the Subdivision,and shall
maintain the quality of water entering the ditch from irrigation,and from runoff from precipitation
and otherwise. There shall be no change made in the rate,amount,point or type of drainage into the
ditch,except as provided in a Final Drainage Plan that has been accepted by Weld County and by the
Ditch Company as provided in this Agreement. Landowner agrees to submit to the Ditch Company
for review a Preliminary and a Final Drainage Plan that shall have been accepted by the Weld
County government. Any changes to the Preliminary Drainage Plan and to the facilities shown or
required by the County and the Ditch Company shall be incorporated into the Final Drainage Plan
and such facilities shall be constructed solely at the expense of the Landowner. Maintenance of all
drainage facilities shall be accomplished by Landowner or Weld County or both. Any facilities that
are not installed or maintained as provided in the Final Drainage Plan shall cause a default under this
Agreement.No facilities that are not described in the Final Drainage Plan and accepted by the Ditch
Company shall be installed. No changes to the Final Drainage Plan shall be made after the Ditch
Company and the County have both accepted the Final Drainage Plan. Landowner agrees that there
may have existed for many years underground drain lines and ditches carrying water across the
properties.Landowner agrees that an easement exists for the underground drain lines and ditches and
Landowner agrees to regularly maintain and repair the lines and ditches on an "as needed" basis
prior to the irrigation season. In the event there is proposed or formed a drainage district under
federal, state or local law or requirement, Landowner agrees to include all of the property with the
boundaries of such district. Landowner and any homeowners association will not cause, permit or
suffer any hazardous material,pollutant or other foreign material to be deposited or discharged into
• the Ditch Company's ditch or the water carried in the ditch.The Landowner will immediately notify
the appropriate governmental agencies and the Ditch Company of any potential or actual such
deposit or discharge by any person.
7. Landowner,and Landowner's successors and assigns,hereby specifically waive all
known or unknown claims,damages,rights of indemnity,rights of contribution or other rights of any
kind or nature for claims, damages, actions,judgments or executions that have arisen or may arise
out of the maintenance,operation or use of the Ditch Company's ditch and easement,including,but
not limited to: flooding due to overflow or breach of the Ditch Company's ditch;washing or erosion
of the ditch bath;cleaning of the ditch and easement by burning or chemical means;and excavation
of the ditch and storage of residue. Landowner, and Landowner's successors and assigns, hereby
agree to indemnify the Ditch Company,its directors,officers and stockholders against any loss from
any claims,demands or actions that may hereafter be brought against any of them as a consequence
of this Agreement or concerning any of the provisions of this Agreement.
8. In any action brought by the Ditch Company to enforce the provisions hereof,
whether legal or equitable, and/or in any action involving Ditch Company and Landowner or any
successor of Landowner whether to enforce the provisions of this Agreement or otherwise,the Ditch
Company shall be entitled to reasonable attorneys' fees as fixed by the court. Venue for all actions
shall be in the Weld County District Court.
9. The provisions hereof shall be deemed independent and severable,and the invalidity
• or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the
Page 2
• validity or enforceability of any other provision hereof.10. The terms, covenants, and conditions herein contained shall be binding upon and
inure to the benefit of the successors and assigns of Landowner, the Ditch Company and the
homeowners association,and each of them. The provisions hereof shall constitute covenants running
with the land, burdening and benefiting each and every part of the properties and every interest
therein. In addition,the provisions hereof shall be enforceable in equity as equitable servitudes upon
the land and as covenants in an agreement between owners.This Agreement affects the property and
title of the Subdivision,and this Agreement shall be recorded at the expense of Landowner,and after
recording,the terms, conditions and covenants of this Agreement shall become a covenant running
with the land of the Subdivision. This Agreement shall constitute a benefit and burden on the
Subdivision and this Agreement shall be enforceable by the Ditch Company or any of its
shareholders, or both the Ditch Company and any of its shareholders.
11. The provisions hereof shall be liberally construed to effectuate their purpose of
creating a uniform plan for the development and operation of the Subdivision.Failure to enforce any
provision hereof shall not constitute a waiver of the right to enforce said provision or any other
provision hereof Whenever used in this Agreement,the singular shall include the plural,the plural
the singular,and the use of any gender shall include all genders.This Agreement shall be construed
under the law of the State of Colorado. Time is of the essence of this Agreement.
12. The following notes shall be inserted by the Landowner into the permanent covenants
affecting the title to the Subdivision or onto the Subdivision plat:
• A. The Ditch Company has the authority to cut and remove trees within its right of way
and it is acknowledged by the owners of the property in the Subdivision that the Ditch Company
will, at an appropriate time, remove any and all such trees on the property. The owners of the
property in the Subdivision acknowledge that the property owners and successor owners may not
plant or otherwise landscape the ditch right of way. The Ditch Company also has the authority to
install and maintain a road along each ditch bank for its purposes.
B. The property owners may not place any fence within the ditch right of way, and
particularly across the right of way; and the property owners shall not to install any gates or fences
near the ditch company right of way without the prior written approval of the Ditch Company. Any
fences approved by the Ditch Company along the ditch easement must be stock-proof to prevent
damage by humans and livestock and other sources to the ditch. There will not be permitted any
livestock watering in the ditch.A chain link type fence should be constructed along the boundary of
the Ditch Company's easement if a fence is to be constructed. Cattle guards instead of gates should
be utilized instead of gates.
C. The property owners acknowledge and understand that there may be subsurface
waters that arise in the area of this development and that there are periods of time when,due to water
flowing within the ditch system and otherwise, that portions of the property receive significant
amounts of subsurface water that is very near to the surface, or resides on the surface. Due to this
problem,the utility of certain portions of the property for construction of structures could potentially
be unavailable. The Ditch Company has no plans to alter its operations as it would cure this surface
and subsurface water issue.
D. The property owners shall maintain the irrigation and drainage patterns existing on
• the date of recording of the plat so that the quality of water entering the ditch from irrigation and
Page 3
from precipitation and other sources is maintained, and so that there is no change in rate, amount,
• point or type of drainage into the ditches that will occur. The property owners shall monitor and
identify any pollutants or other hazardous materials that enter the ditch and should agree to stop any
such deposit in the ditch system.
E. The property owners acknowledge that: 1)No livestock watering,swimming,tubing,
canoeing or other use of the ditch or water in the ditch is allowed; 2) No dumping of refuse,
including but not limited to household garbage, waste materials, grass clippings, tree and shrub
prunings, motor oil, chemicals, pesticides or herbicides is allowed; 3)No pumps for lawn or other
irrigation are allowed in the ditch; 4) No use of the ditch easement for hiking, biking, horseback,
motorcycle, off road vehicles or other motorized or non-motorized vehicle shall be allowed.
F. No crossings of the ditch are permitted without the prior written consent of the Ditch
Company and compliance with the rules, regulations and requirements of the Ditch Company.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement this_day of
, 2008.
THE CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY,a
Colorado mutual irrigation company
By:
President—Minerva Lee
Secretary—Delbert Helzer
•
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing was acknowledged before me this day of ,2008,by Minerva
Lee, as President, and Delbert Helzer, as Secretary of The Consolidated Home Supply Ditch and
Reservoir Company, a Colorado mutual irrigation company.
Witness my hand and official seal.
Notary Public
My commission expires:
• 4
• MERINO CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Burton C. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Burton C. Kross as Manager of Merino Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
TWIN VIEW ESTATES,LLC,a Colorado
limited liability company
Landowner
•
By: Stephen C. Greenlee, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Stephen C. Greenlee as Manager of Twin View Estates, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
• 5
• PURCELL CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Mark A. ICross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
•
• 6
EXHIBIT "A"
ID COPY OF SUBDIVISION PLAT
,�
kiik ,• - •r . . .
1 c _ _Jar.—
,.,,..., ^' Y- 'I a • ,.
.1
.4 _.1,;.
!'1 Tom' . _ silt
.r Ns •
.471r II i;-:
it
2t In
ti.11.1
i J J
L
ti- ii
_ �' . : i .j . _4 t.,c .I
♦. - I,R. 1. ti
I - t. - _- N. ,. ,• ;, 1
i; et
l
4 .. .,
. 1
. 1
i
I' .
IJT1
-
- _ -,
•
x --0! 1 000ft cif_ -
PT SE4 5-4-68 LOT A 2ND AMD REC EXEMPT RE-3984
[Owned by Twin View Estates, LLC]
• 1
• a •
. lire •
at
t 4 — ...
•
•
,. A
ti•
W
N
•
tin
1.
�j
6illi — .a�.7�FriMe",�µ 4
- Yr 0W33BIW ' +uu .-.
ilt-1;
c ,� _
: ._. : A_ '. t _ n
\ . !
IIIIII
.impi i
,....
iii i
• I _ .
, . 4
i . . ,.
..,,
. : 2... ,,, — - . --N._
_ : (
t I
. .
•
- .
It
.—.—t,.1-CR 48 .4
Wag Cooney. L 0 O 0 --Allik..--: . -imi.' -
a
PT SE4 5-4-68 LOT B 2ND AMD REC EXEMPT RE-3984
[Owned by 80% Twin View Estates, LLC and 20% Purcell Conservation Group, LLC]
• 2
0 r-
in
O - r,..,
h";•
- Ill: IL. _ .
... 4.4
,: ,
i
4 ------144' .' . . .
_ 1
f
II
.- - . ..
ti
I
11
_0 I
SIIIIIrit- -- _
) 1 P
it
4_ CR4d
� a
W Co.tty.c. • avaiiiiis _ka. �i
PT S2NW4 LOT C AMD REC EXEMPT RE-3983
[Owned by Merino Conservation Group, LLC]
• 3
EXHIBIT "B"
• EASEMENT AND RIGHT OF WAY AGREEMENT
This Easement and Right of Way Agreement, made and entered into as of the day of
, 2008, by and between TWIN VIEW ESTATES, LLC, a Colorado limited liability
company,c/o Stephen C.Greenlee,Manager,3555 Stanford Road,Suite 204,Fort Collins,CO
80525,MERINO CONSERVATION GROUP,LLC,Burton C. Kross,6933 Sedgwick Drive,
Fort Collins, CO 80525, and PURCELL CONSERVATION GROUP, LLC, Mark A. Kross,
7233 Whitworth Court, Fort Collins, CO 80528, hereinafter called "Grantor" (whether
grammatically singular or plural), and The Consolidated Home Supply Ditch and Reservoir
Company, 1650 West 8th Street, Loveland, Colorado 80537, hereinafter called the "Company."
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Grantor hereby grants, sells, conveys and transfers to the Company, its
successors and assigns,the sole,exclusive and permanent right to enter,re-enter,occupy and use the
hereinafter described property to construct,reconstruct,inspect,upgrade,increase size or capacity,
operate, repair, maintain, replace, remove and operate one or more open irrigation ditches and/or
pipelines and/or reservoirs for the storage,transmission,distribution and service of irrigation water,
and all above ground and underground and service appurtenances thereto, including metering
stations, vaults, enclosures, identification signs, checks, headgates, dams and other fixtures, over,
across, under and upon the following described land, situate in the County of Weld, State of
Colorado, to-wit:
The Company's "River Ditch", and the Company's"Lake Ditch" on Lots A,B
• and C of RE-3983 and 3984; being a portion of the North '''A of the South 1/2 and
the NW 1/4 of Section 5,Township 4 North,Range 68 West of the 6th P.M.,Weld
County, Colorado;
The easement and right of way for both of the ditches shall be 100 feet wide,being 50 feet on each
side of the center line, or 25 feet from the toe of the ditch on each side, whichever is greater.
Grantor further grants to the Company:
(a) The right to grade the easement area for the full width thereof and to extend the cuts
and fills with such grading into and on the land along and outside of the easement to the extent as the
Company may find reasonably necessary;
(b) The right to support the ditches and pipelines across ravines and water courses with
such structures as Company shall deem necessary;
(c) The right of ingress to and egress from the easement over and across all of the land of
Grantor by means of roads and lanes thereon, if such exists, otherwise by such route or routes as
shall occasion the least practicable damage and inconvenience to Grantor;
(d) The right of grading for, constructing, maintaining and using such roads on and
across the lands as the Company may deem necessary in the exercise of the right of ingress and
egress or to provide access to property adjacent to the land;
(e) The right to install, maintain and use gates and/or cattle guards in all fences which
now cross or shall hereafter cross the easement;
• (1) The right to mark the location of the easement by suitable markers set in the ground;
1
provided that any such markers remaining after the period of construction shall be placed in fences
• or other locations which will not interfere with any reasonable use Grantor shall make of the
easement;
(g) All other rights necessary and incident to the full and complete use and enjoyment of
the right-of-way and easement for the purposes herein granted.
GRANTOR HEREBY COVENANTS AND AGREES:
(a) That Grantor shall not erect or place any permanent building,structure,improvement,
fence or tree on the described easement, and the Company shall not be liable for their removal if
they are so placed, and Grantor agrees, at Grantor's sole expense to so remove such items.
(b) Grantor shall not diminish the ground cover in the easement or over any water lines
and shall not substantially add to the ground cover in the easement or over the water lines or their
appurtenances.
(c) Grantor shall not grant any other easement, right-of-way, permit or license upon,
under or over said property without the written consent of the Company.
(d) Grantor warrants that Grantor is the owner in fee of the above-described lands and
will defend the title thereto against all claims,and that said lands are free and clear of encumbrances
and liens of whatsoever character, except the following: None
IT IS MUTUALLY AGREED BY THE PARTIES:
(a) Grantor reserves all oil,gas and other minerals in,on and under the above-described
• lands,and Grantor shall not grant any right in the surface or otherwise that will materially interfere
with the rights and privileges herein granted to the Company.
(b) Each and every one of the benefits and burdens of this easement and right-of-way
shall inure to and be binding upon the respective personal representatives,successors,and assigns of
the parties hereto.
IN WITNESS WHEREOF the undersigned has set his hand and seal as Grantor.
GRANTOR
TWIN VIEW ESTATES,LLC,a Colorado limited
liability company, Stephen C. Greenlee,Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,by
Stephen C.Greenlee as Manager of Twin View Estates,LLC,a Colorado limited liability company,
as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
•
2
• GRANTOR
MERINO CONSERVATION GROUP, LLC, a
Colorado limited liability company, Burton C.
Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008, by
Burton C. Kross as Manager of Merino Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
GRANTOR
PURCELL CONSERVATION GROUP, LLC, a
• Colorado limited liability company, Mark A.
Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of , 2008, by
Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
• 3
AGREEMENT
• This Agreement (the Agreement), is between the CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY(Ditch Company) and MERINO CONSERVATION
GROUP,LLC,Burton C.Kross,6933 Sedgwick Drive,Fort Collins,CO 80525,TWIN VIEW
ESTATES,LLC,Stephen C.Greenlee,3555 Stanford Road,Suite 204,Fort Collins,CO 80525
and PURCELL CONSERVATION GROUP, LLC, Mark A. Kross, 7233 Whitworth Court,
Fort Collins, CO 80528, (Landowner), and is upon the following terms:
1. Landowner is the owner of all of the property known as the Lots A,B and C of RE-
3983 and 3984; being a portion of the North 1/2 of the South 1/2 and the NW1/4 of Section 5,
Township 4 North,Range 68 West of the 6th P.M.,Weld County,Colorado, a copy of which is
attached hereto as Exhibit A (the "Subdivision").
2. Landowner desires to obtain approval of the Ditch Company for certain matters
required by the Weld County,Colorado,Board of County Commissioners relating to the conditional
approval of the Subdivision. The Ditch Company's interests will be benefited by the granting of its
approval through the terms and conditions of this Agreement. Therefore the parties acknowledge
that valuable consideration exists for this Agreement among the parties. Landowner shall pay a
permit fcc to the Ditch Company of$5,000.00 for each crossing of the ditch of the Ditch Company
whieh shall be in addition to all other fees or eharges required to be paid by the Landowner to the
Ditch Company under the terms of this Agreement. No crossing of the Ditches of the Ditch
Company is authorized by this Agreement; and if a crossing is needed in the future then Landowner
• shall comply with the requirements of Ditch Company at that time. Landowner shall also reimburse
the Ditch Company for all of its engineering and legal expenses incurred in the review,negotiation
and completion of this Agreement. The Ditch Company's access road shall not be used by
Landowner except for agricultural uses; and no commercial or industrial uses (including use for
access to oil or gas well sites) shall be permitted by the Ditch Company.
3. Landowner may own assessable share(s) of the Ditch Company which has / have
historically been used to irrigate for agricultural purposes the Subdivision. Landowner desires to
continue to have the Subdivision and open space areas irrigated by water from the ditch of the Ditch
Company. Landowner shall obtain all necessary approvals to be able to use such water for such
purposes.
4. The Ditch Company has a right-of-way for its two ditches and appurtenant facilities
shown on the plat attached hereto. Landowner recognizes and confirms said ownership of the Ditch
Company. Landowner agrees to execute an easement in the form of Exhibit B attached hereto to
have the Landowner confirm and convey the property rights of the Ditch Company. The easement
shall be recorded at the expense of the Landowner along with this Agreement.Landowner grants and
confirms to the Ditch Company an exclusive easement for the Ditch Company's two irrigation
ditches and appurtenant facilities as generally depicted on the drawing of the Ditch Company's
system together with rights of ingress and egress for Ditch Company purposes over and across the
Subdivision.
• 5. Landowner represents and warrants that Landowner is, on the date of execution of
Page 1
this Agreement, the sole owner of the Subdivision. Landowner may have lien(s) against the
• Subdivision, and Landowner will obtain the written consent and acceptance of all lienholders by
signature on this Agreement prior to its recording. Failure to obtain such written consent and
acceptance from all such lienholders shall cause Landowner to be in default under this Agreement.
6. Landowner will maintain the existing irrigation patterns on the Subdivision,and shall
maintain the quality of water entering the ditch from irrigation, and from runoff from precipitation
and otherwise.There shall be no change made in the rate,amount,point or type of drainage into the
ditch,except as provided in a Final Drainage Plan that has been accepted by Weld County and by the
Ditch Company as provided in this Agreement. Landowner agrees to submit to the Ditch Company
for review a Preliminary and a Final Drainage Plan that shall have been accepted by the Weld
County government. Any changes to the Preliminary Drainage Plan and to the facilities shown or
required by the County and the Ditch Company shall be incorporated into the Final Drainage Plan
and such facilities shall be constructed solely at the expense of the Landowner. Maintenance of all
drainage facilities shall be accomplished by Landowner or Weld County or both.Any facilities that
are not installed or maintained as provided in the Final Drainage Plan shall cause a default under this
Agreement.No facilities that are not described in the Final Drainage Plan and accepted by the Ditch
Company shall be installed. No changes to the Final Drainage Plan shall be made after the Ditch
Company and the County have both accepted the Final Drainage Plan. Landowner agrees that there
may have existed for many years underground drain lines and ditches carrying water across the
properties.Landowner agrees that an easement exists for the underground drain lines and ditches and
Landowner agrees to regularly maintain and repair the lines and ditches on an "as needed" basis
prior to the irrigation season. In the event there is proposed or formed a drainage district under
• federal, state or local law or requirement, Landowner agrees to include all of the property with the
boundaries of such district. Landowner and any homeowners association will not cause,permit or
suffer any hazardous material,pollutant or other foreign material to be deposited or discharged into
the Ditch Company's ditch or the water carried in the ditch.The Landowner will immediately notify
the appropriate governmental agencies and the Ditch Company of any potential or actual such
deposit or discharge by any person.
7. Landowner,and Landowner's successors and assigns,hereby specifically waive all
known or unknown claims,damages,rights of indemnity,rights of contribution or other rights of any
kind or nature for claims, damages, actions,judgments or executions that have arisen or may arise
out of the maintenance,operation or use of the Ditch Company's ditch and easement,including,but
not limited to: flooding due to overflow or breach of the Ditch Company's ditch;washing or erosion
of the ditch bank;cleaning of the ditch and easement by burning or chemical means;and excavation
of the ditch and storage of residue. Landowner, and Landowner's successors and assigns, hereby
agree to indemnify the Ditch Company,its directors,officers and stockholders against any loss from
any claims,demands or actions that may hereafter be brought against any of them as a consequence
of this Agreement or concerning any of the provisions of this Agreement.
8. In any action brought by the Ditch Company to enforce the provisions hereof,
whether legal or equitable, and/or in any action involving Ditch Company and Landowner or any
successor of Landowner whether to enforce the provisions of this Agreement or otherwise,the Ditch
Company shall be entitled to reasonable attorneys' fees as fixed by the court. Venue for all actions
• shall be in the Weld County District Court.
Page 2
• 9. The provisions hereof shall be deemed independent and severable,and the invalidity
or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the
validity or enforceability of any other provision hereof
10. The terms, covenants, and conditions herein contained shall be binding upon and
inure to the benefit of the successors and assigns of Landowner, the Ditch Company and the
homeowners association,and each of them.The provisions hereof shall constitute covenants running
with the land, burdening and benefiting each and every part of the properties and every interest
therein. In addition,the provisions hereof shall be enforceable in equity as equitable servitudes upon
the land and as covenants in an agreement between owners.This Agreement affects the property and
title of the Subdivision,and this Agreement shall be recorded at the expense of Landowner,and after
recording,the terms,conditions and covenants of this Agreement shall become a covenant running
with the land of the Subdivision. This Agreement shall constitute a benefit and burden on the
Subdivision and this Agreement shall be enforceable by the Ditch Company or any of its
shareholders, or both the Ditch Company and any of its shareholders.
11. The provisions hereof shall be liberally construed to effectuate their purpose of
creating a uniform plan for the development and operation of the Subdivision.Failure to enforce any
provision hereof shall not constitute a waiver of the right to enforce said provision or any other
provision hereof Whenever used in this Agreement,the singular shall include the plural,the plural
the singular,and the use of any gender shall include all genders.This Agreement shall be construed
under the law of the State of Colorado. Time is of the essence of this Agreement.
• 12. The following notes shall be inserted by the Landowner into the permanent covenants
affecting the title to the Subdivision or onto the Subdivision plat:
A. The Ditch Company has the authority to cut and remove trees within its right of way
and it is acknowledged by the owners of the property in the Subdivision that the Ditch Company
will, at an appropriate time, remove any and all such trees on the property. The owners of the
property in the Subdivision acknowledge that the property owners and successor owners may not
plant or otherwise landscape the ditch right of way. The Ditch Company also has the authority to
install and maintain a road along each ditch bank for its purposes.
B. The property owners may not place any fence within the ditch right of way, and
particularly across the right of way; and the property owners shall not to install any gates or fences
near the ditch company right of way without the prior written approval of the Ditch Company. Any
fences approved by the Ditch Company along the ditch easement must be stock-proof to prevent
damage by humans and livestock and other sources to the ditch. There will not be permitted any
livestock watering in the ditch.A chain link type fence should be constructed along the boundary of
the Ditch Company's easement if a fence is to be constructed. Cattle guards instead of gates should
be utilized instead of gates.
C. The property owners acknowledge and understand that there may be subsurface
waters that arise in the area of this development and that there are periods of time when,due to water
flowing within the ditch system and otherwise, that portions of the property receive significant
amounts of subsurface water that is very near to the surface, or resides on the surface. Due to this
problem,the utility of certain portions of the property for construction of structures could potentially
• be unavailable. The Ditch Company has no plans to alter its operations as it would cure this surface
Page 3
and subsurface water issue.
• D. The property owners shall maintain the irrigation and drainage patterns existing on
the date of recording of the plat so that the quality of water entering the ditch from irrigation and
from precipitation and other sources is maintained, and so that there is no change in rate, amount,
point or type of drainage into the ditches that will occur. The property owners shall monitor and
identify any pollutants or other hazardous materials that enter the ditch and should agree to stop any
such deposit in the ditch system.
E. The property owners acknowledge that: 1)No livestock watering,swimming,tubing,
canoeing or other use of the ditch or water in the ditch is allowed; 2) No dumping of refuse,
including but not limited to household garbage, waste materials, grass clippings, tree and shrub
prunings, motor oil, chemicals, pesticides or herbicides is allowed; 3)No pumps for lawn or other
irrigation are allowed in the ditch; 4) No use of the ditch easement for hiking, biking, horseback,
motorcycle, off road vehicles or other motorized or non-motorized vehicle shall be allowed.
F. No crossings of the ditch are permitted without the prior written consent of the Ditch
Company and compliance with the rules, regulations and requirements of the Ditch Company.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement this_day of
, 2008.
THE CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY,a
Colorado mutual irrigation company
• By:
President—Minerva Lee
Secretary—Delbert Helzer
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing was acknowledged before me this day of ,2008,by Minerva
Lee, as President, and Delbert Helzer, as Secretary of The Consolidated Home Supply Ditch and
Reservoir Company, a Colorado mutual irrigation company.
Witness my hand and official seal.
Notary Public
My commission expires:
• 4
• MERINO CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Burton C. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Burton C. Kross as Manager of Merino Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
TWIN VIEW ESTATES,LLC,a Colorado
limited liability company
Landowner
•
By: Stephen C. Greenlee, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Stephen C. Greenlee as Manager of Twin View Estates, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
. 5
• PURCELL CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Mark A. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
•
• 6
EXHIBIT "A"
• COPY OF SUBDIVISION PLAT
cam" 'Ow :F
. lc .. ,_
. ,
_
L .k et .,P ' .ikt i
, .
4 1 r '' 6 .l .l
r ti
• egpa
re.; ._ _ c ':
� . - - - - is t ' S ' _I, - - :...
..
..
,...... a ; •.
ivil i Y
r
cc
.. __- _ • -S 4° •'' . i
lit
I� - -- a— '- _ =' `sw. l _• - •� -- -
e' — — -c , `".'mot'. 4
G AS-
Per iTii'iiv A
S N
• : . .i.•1/4. : i
1r
. . ..
-- r ;': '
•
1• • II
I
i 1 t •.. ...;4= I„Cli _ iiir.__. , +
. illiarreir.g. - III
• at . 9 I!,r
i -. ,�,
PT SE4 5-4-68 LOT A 2ND AMD REC EXEMPT RE-3984
[Owned by Twin View Estates, LLC]
ill 1
•
• :PI di _
,-
, .
:S
h-4
4 .$ II i
-. { ; _ r ` it
i
II
•
ft
1 1; I-.
PT SE4 5-4-68 LOT B 2ND AMD REC EXEMPT RE-3984
[Owned by 80% Twin View Estates, LLC and 20% Purcell Conservation Group, LLC]
0 2
•
.i _ .
•✓ ... - - R —_ -
i
* ,•
t
_i : ' \••._.„.__..... .„.....44........aiii.......mosidp.,,,,,....a.t..."-••••••,......._,..................N.<1.t-- k _ .._ _ . . ._
C p
1•\
y
- � - 4.
I ! 1I A
I
_ I �y •- -. I y•
41111 6 I
1, :sI� : Si VA-
____..— __ III- ` " £" ...wr«. m. _ ^\� n v SF4
•
i:
-
s;
.w';1. •
I •
4
A >w» l
CR 3
8
PT S2NW4 LOT C AMD REC EXEMPT RE-3983
[Owned by Merino Conservation Group, LLC]
41 3
EXHIBIT"B"
• EASEMENT AND RIGHT OF WAY AGREEMENT
This Easement and Right of Way Agreement, made and entered into as of the day of
, 2008, by and between TWIN VIEW ESTATES, LLC, a Colorado limited liability
company,c/o Stephen C.Greenlee,Manager,3555 Stanford Road,Suite 204,Fort Collins,CO
80525,MERINO CONSERVATION GROUP,LLC,Burton C. Kross,6933 Sedgwick Drive,
Fort Collins, CO 80525, and PURCELL CONSERVATION GROUP, LLC, Mark A. Kross,
7233 Whitworth Court, Fort Collins, CO 80528, hereinafter called "Grantor" (whether
grammatically singular or plural), and The Consolidated Home Supply Ditch and Reservoir
Company, 1650 West 8th Street, Loveland, Colorado 80537, hereinafter called the "Company."
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Grantor hereby grants, sells, conveys and transfers to the Company, its
successors and assigns,the sole,exclusive and permanent right to enter,re-enter,occupy and use the
hereinafter described property to construct,reconstruct,inspect,upgrade,increase size or capacity,
operate, repair, maintain, replace, remove and operate one or more open irrigation ditches and/or
pipelines and/or reservoirs for the storage,transmission,distribution and service of irrigation water,
and all above ground and underground and service appurtenances thereto, including metering
stations, vaults, enclosures, identification signs, checks, headgates, dams and other fixtures, over,
across, under and upon the following described land, situate in the County of Weld, State of
Colorado, to-wit:
The Company's "River Ditch", and the Company's"Lake Ditch"on Lots A,B
• and C of RE-3983 and 3984; being a portion of the North ''A of the South %2 and
the NW 1/4 of Section 5,Township 4 North,Range 68 West of the 6th P.M.,Weld
County, Colorado;
The easement and right of way for both of the ditches shall be 100 feet wide,being 50 feet on each
side of the center line, or 25 feet from the toe of the ditch on each side, whichever is greater.
Grantor further grants to the Company:
(a) The right to grade the easement area for the full width thereof and to extend the cuts
and fills with such grading into and on the land along and outside of the easement to the extent as the
Company may find reasonably necessary;
(b) The right to support the ditches and pipelines across ravines and water courses with
such structures as Company shall deem necessary;
(c) The right of ingress to and egress from the easement over and across all of the land of
Grantor by means of roads and lanes thereon, if such exists, otherwise by such route or routes as
shall occasion the least practicable damage and inconvenience to Grantor;
(d) The right of grading for, constructing, maintaining and using such roads on and
across the lands as the Company may deem necessary in the exercise of the right of ingress and
egress or to provide access to property adjacent to the land;
(e) The right to install, maintain and use gates and/or cattle guards in all fences which
now cross or shall hereafter cross the easement;
• (f) The right to mark the location of the easement by suitable markers set in the ground;
1
provided that any such markers remaining after the period of construction shall be placed in fences
• or other locations which will not interfere with any reasonable use Grantor shall make of the
easement;
(g) All other rights necessary and incident to the full and complete use and enjoyment of
the right-of-way and easement for the purposes herein granted.
GRANTOR HEREBY COVENANTS AND AGREES:
(a) That Grantor shall not erect or place any permanent building,structure,improvement,
fence or tree on the described easement, and the Company shall not be liable for their removal if
they are so placed, and Grantor agrees, at Grantor's sole expense to so remove such items.
(b) Grantor shall not diminish the ground cover in the easement or over any water lines
and shall not substantially add to the ground cover in the easement or over the water lines or their
appurtenances.
(c) Grantor shall not grant any other easement, right-of-way, permit or license upon,
under or over said property without the written consent of the Company.
(d) Grantor warrants that Grantor is the owner in fee of the above-described lands and
will defend the title thereto against all claims,and that said lands are free and clear of encumbrances
and liens of whatsoever character, except the following: None
IT IS MUTUALLY AGREED BY THE PARTIES:
(a) Grantor reserves all oil,gas and other minerals in,on and under the above-described
lands,and Grantor shall not grant any right in the surface or otherwise that will materially interfere
• with the rights and privileges herein granted to the Company.The Company's access road shall not
be used by Landowner except for agricultural uses;and no commercial or industrial uses(including
use for access to oil or gas well sites) shall be permitted by the Company.
(b) Each and every one of the benefits and burdens of this easement and right-of-way
shall inure to and be binding upon the respective personal representatives,successors,and assigns of
the parties hereto.
IN WITNESS WHEREOF the undersigned has set his hand and seal as Grantor.
GRANTOR
TWIN VIEW ESTATES,LLC,a Colorado limited
liability company, Stephen C. Greenlee,Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008, by
Stephen C.Greenlee as Manager of Twin View Estates,LLC,a Colorado limited liability company,
as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
•
2
• GRANTOR
MERINO CONSERVATION GROUP, LLC, a
Colorado limited liability company, Burton C.
Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of , 2008, by
Burton C. Kross as Manager of Merino Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
GRANTOR
PURCELL CONSERVATION GROUP, LLC, a
• Colorado limited liability company, Mark A.
Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of , 2008,by
Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
• 3
• • fib* L-edE (41
66x , 1 31
• STARR & WESTBROOK, P.C.
ATTORNEYS AT LAW
210 EAST 29TH STREET
P.O. BOX 642
LOVELAND,COLORADO 80539-0642
TELEPHONE 970-667-1029
FACSIMILE 970-669-3841
RANDOLPH W. STARR E-Mail RSTARR8553@aol.com
MICHAEL A.WESTBROOK E-mail WESTBROOK72a4aol.com
Tuesday, July 10, 2007
Weld County Planning Division
Attention: Michelle Martin
4209 CR 24.5
Longmont, CO 80504
Re: PUD Sketch Plan for a 9 Lot Residential Subdivision in Twin View Estates
Amended Recorded Exemption-File Number PK-1140 (formerly AmRE-3983)
Comments of The Consolidated Home Supply Ditch and Reservoir Company/The
Handy Ditch Company
Dear Ms. Martin:
The following are the comments of The Consolidated Home Supply Ditch and Reservoir
Company and The Handy Ditch Company with respect to the above subdivision proposals. Please
• add my address in lieu of the Consolidated Home Supply Ditch Company's address regarding this
development and send a copy of further correspondence to me for both of the Companies.
I presented comments to the County by my letters of April 25,2005 and December 4,2006.
The Ditch Company has NOT signed any agreement with any of the property owners (and all
lienholders) setting forth the provisions that were discussed in my prior letters. The Companies
believe that having such an agreement should be a requirement for development of the property.The
comments of my April 25, 2005, and December 4, 2006, letters are incorporated herein as though
fully set forth. The Companies request that the County require an agreement between the Ditch
Company and the landowner.
If further information is needed concerning these comments then you should contact: Mr.
Delbert Helzer, Secretary, The Consolidated Home Supply Ditch and Reservoir Company, 1650
West 8th Street, Loveland, Colorado 80537, Telephone: 970-667-1934.
Sincerely,
Randolph W. Starr
•
• •
Weld County Planning Division -2- Tuesday,July 10,2007
•
Enc.- April 25, 2005 & December 4, 2006 letters
pc:
Mr. Delbert Helzer
Secretary
The Consolidated Home Supply Ditch And Reservoir Company
1650 West 8th Street
Loveland, CO 80537
Owner and Owners' Address
Merino Conservation Group, LLC
Burton C. Kross
6933 Sedgwick Drive
Fort Collins, CO 80525
Engineer and Engineer's Address
Robb Casseday
Casseday Creative Designs, LLC
55 South Elm Avenue, Suite 210
Eaton, CO 80615
•
•
• •
STARR & WESTBROOK, P.C.
IIP ATTORNEYS AT LAW
THE PALMER.GARDENS
150 EAST 29TH STREET,SUITE 285
P.O. BOX 642
LOVELAND,COLORADO 80539-0642
TELEPHONE 970-667-1029
FACSIMILE 970-669-3841
RANDOLPH W.STARR E-Mail RSTi RRIS.53 .ol.enm
MICHAEL A.WESTBROOK E-mail WESTB.ItOOK72@aoL.com
April.25,2005
Weld County Planning Division
1555 North 17th Avenue
Greeley,CO 80631
REGULAR MAIL AND FACSIMILE 970-304-6498
Attention: Michelle Martin
Re: Twin View Estates LLC -- Amended Recorded Exemption - File Number AtnRE-
39g4
Comments of The Consolidated Home Supply Ditch and Reservoir Company
Dear Michelle:
• The following are the comments of The Consolidated Home Supply Ditch and Reservoir
Company(the Company)withrespect to the above subdivision proposal. Please add the Company to
the mailing list regarding this development and send a copy of further correspondence to me for the
Company.
1. The Company requests that the County require that an agreement be entered into
between the Company and all of the property owners(and all lienholders)setting forth the provisions
that are discussed in this letter. The execution and recording of this agreement should be a
condition of approval of this development by the County_ A blank form of the agreement is
enclosed with this letter.
2. The Company has an easement for its ditch system. across the property which is
included within the development. The Company owns Iwo ditches that are impacted by this
development. The Company owns the"River Ditch"which is along the northerly boundary of the
property and then crosses the northeasterly corner of the property;and the Company owns the"Lake
Ditch"which crosses the"River Ditch"and continues across the property from the northwest to the
southeasterly corner of the development. Although the Company has not had its ditch system
surveyed in this area, the Company has identified an easement width as 100 feet, being 50 feet on
each side of the center line. Additional easement will be re wired,if necessary,to obtain a 25 foot
strip on each side of the etc . om the e ge of the ditch for driving access and maintenance). The
should be amended to show the Company's easement correctly. Additional easement area is
necessary for structures such as lateral ditches used to irrigate the subdivision property and other
•
• •
Weld County Planning Division -2- April 25,2005
• property in the area,checks, headgates and access easements. The plat must also show
the,location
of any lateral ditches. The plat should be corrected to show the actual location of the lateral ditches,
and an easement width should be shown for each lateral.
3. The Subdivision apparently shows no crossing over the ditch of the Company. If a
crossing would be necessary, whether for roads, utilities, or other facilities, the Company would
require that no crossing of its ditches will be allowed without the prior written approval of the
Company.
4. The Company has the authority to cut and remove trees within its right of way and the
Company wants the applicant to acknowledge that the Company will,at an appropriate time,remove
any and all such trees on the applicant's property. The Company wants the applicant to acknowledge
that the applicant and its successor owners may not plant or otherwise landscape the ditch right of
way. The Company also has the authority to install and maintain a road along each ditch bank for its
purposes. A note should be inserted on the plat of the Subdivision regarding these issues.
5. The applicant must not place any fence within the right of way,and particularly across
the right of way; and the applicant should agree not to install any gates or fences near the ditch
company right of way without the prior written approval of the Company. Any fences approved by
the Company along the ditch easement must be fireproof and stock-proof to prevent damage by
cleaning of the ditch by burning and by humans and Livestock and other sources to the ditch. There
will not be permitted any livestock watering in the ditch. A chain link type fence should be
• constructed along the boundary of the Company's easement if a fence is to be constructed. A note
should be inserted on the plat of the Subdivision regarding these issues.
6. The Company would identify to the applicant and the County that there may be
subsurface waters that arise in the area of this development and that there arc periods of time when,
due to water flowing within the ditch system and otherwise, that portions of the property receive
significant amounts of subsurface water that is very near to the surface, or resides on the surface.
Due to this problem,the utility o f certain portions of the property for construction of structures could
potentially be unavailable. The Company has no plans to alter its operations as it would cure this
surface and subsurface water issue. A. note should be inserted on the plat of the Subdivision
regarding these issues.
7. The Company wants the applicant to agree that all earth moving and landscaping shall
be accomplished so that all return flow and waste water from irrigation will return to the historic
point of discharge. The applicant should acknowledge that historic irrigation and drainage patterns
should be maintained on the property so that there are no changes in the operation of the Company's
facilities. A drainage plan should be required to be prepared by a competent engineer to analyze and
report on any change in drainage patterns caused by the development of the property. The Company
should be provided a copy of that plan and the Company should have the opportunity to review and
comment on the plan. All drainage facilities constructed by the developer should he operated,
maintained,repaired and replaced by the appropriate governmental entity.
•
• •
Weld County Planning Divisioa _g,
April-25,V.05
8. The applicant should be required to maintain the existing irrigation and drainage
patterns so that the quality of water entering the ditch from irrigation and from precipitation and
other sources be maintained, and so that there is no change in point or type of drainage into the
ditches that w�il.l occur. The applicant should be required to monitor and identify any pollutants or
other hazardous materials that enter the ditch and should agree to stop any such deposit in the ditch
system. A note should be inserted on the plat of the Subdivision regarding these issues.
9. The applicant should be required to agree to join a drainage district for this area in the
event.of formation of such a district.
10. The applicant may own stock in the Company,and may also own water through the
Northern Colorado Water CouservancyDistrict,or otherwise. Since the ownership of the proper(•.,
will-be divided by the subdivision, and since the Company's bylaws prohibit division of its stock
ownership,the Company wants the applicant to inform the Company of the applicant's plan fctr
• administration of irrigation water.•The Company suggests that a subdivision owners association h.:
requiredto be formed for the ownership and administration of the irrigation water rights within the
Subdivision.
11, The Applicant should acknowledge that: 1)No livestock watering,swimming,tubing,
canoeing or other use of the ditch or water in the ditch is allowed; 2) No dumping of refuse,
including but not limited to household garbage,waste materials,
prunings,motor oil, chemicals, pesticide's or herbicides is allowed: No pumps for lawn or other
• irrigation are allowed in the ditch; 4)No use of the ditch easement.for hiking, biking, horseback,
motorcycle,off road vehicles or other motorized or non-motorized vehicle shall be allowed. A note
should be inserted on the plat of the Subdivision regarding these issues.
If further information is needed concerning these comments then you should contact: Mr.
Delbert Helzer, Secretary, The Consolidated Home Supply Ditch and Reservoir Company, 1650
West 8th Street,Loveland,Colorado 80537, Telephone:970-667-1934.
"'—Saco• lv,
Randolph.W. Starr
Rws
Ette.• reagent
Pe:
Mr.1):Its it HeLze
Secretary
The Ccn clidated Howl Supply Ditch And Reytwv Compan}
1430)best SO)Street
LeNeinod.Cr)R537
t}annr and osxpecs•.Sddrtss
Tu.in View Estates,LLC
Stephen C.Greeufee
J555 3tanfgrd Rand,Slum 2na
Fort Coffins.CO S0525
•
• AGREEMENT
This Agreement (the Agreement), is between the CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY(Ditch Company)and MERINO CONSERVATION
GROUP,LLC,Burton C.Kross,6933 Sedgwick Drive,Fort Collins,CO 80525,TWIN VIEW
ESTATES,LLC,Stephen C.Greenlee,3555 Stanford Road,Suite 204,Fort Collins,CO 80525
and PURCELL CONSERVATION GROUP, LLC, Mark A. Kross, 7233 Whitworth Court,
Fort Collins, CO 80528, (Landowner), and is upon the following terms:
1. Landowner is the owner of all of the property known as the Lots A,B and C of RE-
3983 and 3984; being a portion of the North ''/s of the South 1/2 and the NW1/4 of Section 5,
Township 4 North,Range 68 West of the 6'"P.M.,Weld County,Colorado,a copy of which is
attached hereto as Exhibit A (the "Subdivision").
2. Landowner desires to obtain approval of the Ditch Company for certain matters
required by the Weld County,Colorado,Board of County Commissioners relating to the conditional
approval of the Subdivision. The Ditch Company's interests will be benefited by the granting of its
approval through the terms and conditions of this Agreement. Therefore the parties acknowledge
that valuable consideration exists for this Agreement among the parties.
Ditch Company under the terms of this Agreement. No crossing of the Ditches of the Ditch
Company is authorized by this Agreement;and if a crossing is needed in the future then Landowner
• shall comply with the requirements of Ditch Company at that time.Landowner shall also reimburse
the Ditch Company for all of its engineering and legal expenses incurred in the review,negotiation
and completion of this Agreement. The Ditch Company's access road shall not be used by
Landowner except for agricultural uses; and no commercial or industrial uses (including use for
access to oil or gas well sites) shall be permitted by the Ditch Company.
3. Landowner may own assessable share(s) of the Ditch Company which has / have
historically been used to irrigate for agricultural purposes the Subdivision. Landowner desires to
continue to have the Subdivision and open space areas irrigated by water from the ditch of the Ditch
Company. Landowner shall obtain all necessary approvals to be able to use such water for such
purposes.
4. The Ditch Company has a right-of-way for its two ditches and appurtenant facilities
shown on the plat attached hereto.Landowner recognizes and confirms said ownership of the Ditch
Company. Landowner agrees to execute an easement in the form of Exhibit B attached hereto to
have the Landowner confirm and convey the property rights of the Ditch Company. The easement
shall be recorded at the expense of the Landowner along with this Agreement.Landowner grants and
confirms to the Ditch Company an exclusive easement for the Ditch Company's two irrigation
ditches and appurtenant facilities as generally depicted on the drawing of the Ditch Company's
system together with rights of ingress and egress for Ditch Company purposes over and across the
Subdivision.
5. Landowner represents and warrants that Landowner is, on the date of execution of
• Page 1
• this Agreement, the sole owner of the Subdivision. Landowner may have lien(s) against the
Subdivision, and Landowner will obtain the written consent and acceptance of all lienholders by
signature on this Agreement prior to its recording. Failure to obtain such written consent and
acceptance from all such lienholders shall cause Landowner to be in default under this Agreement.
6. Landowner will maintain the existing irrigation patterns on the Subdivision,and shall
maintain the quality of water entering the ditch from irrigation,and from runoff from precipitation
and otherwise.There shall be no change made in the rate,amount,point or type of drainage into the
ditch,except as provided in a Final Drainage Plan that has been accepted by Weld County and by the
Ditch Company as provided in this Agreement. Landowner agrees to submit to the Ditch Company
for review a Preliminary and a Final Drainage Plan that shall have been accepted by the Weld
County government. Any changes to the Preliminary Drainage Plan and to the facilities shown or
required by the County and the Ditch Company shall be incorporated into the Final Drainage Plan
and such facilities shall be constructed solely at the expense of the Landowner. Maintenance of all
drainage facilities shall be accomplished by Landowner or Weld County or both.Any facilities that
are not installed or maintained as provided in the Final Drainage Plan shall cause a default under this
Agreement.No facilities that are not described in the Final Drainage Plan and accepted by the Ditch
Company shall be installed. No changes to the Final Drainage Plan shall be made after the Ditch
Company and the County have both accepted the Final Drainage Plan.Landowner agrees that there
may have existed for many years underground drain lines and ditches carrying water across the
properties.Landowner agrees that an easement exists for the underground drain lines and ditches and
Landowner agrees to regularly maintain and repair the lines and ditches on an "as needed" basis
prior to the irrigation season. In the event there is proposed or formed a drainage district under
• federal,state or local law or requirement, Landowner agrees to include all of the property with the
boundaries of such district. Landowner and any homeowners association will not cause, permit or
suffer any hazardous material,pollutant or other foreign material to be deposited or discharged into
the Ditch Company's ditch or the water carried in the ditch.The Landowner will immediately notify
the appropriate governmental agencies and the Ditch Company of any potential or actual such
deposit or discharge by any person.
7. Landowner,and Landowner's successors and assigns,hereby specifically waive all
known or unknown claims,damages,rights of indemnity,rights of contribution or other rights of any
kind or nature for claims, damages,actions,judgments or executions that have arisen or may arise
out of the maintenance,operation or use of the Ditch Company's ditch and easement,including,but
not limited to:flooding due to overflow or breach of the Ditch Company's ditch;washing or erosion
of the ditch bank;cleaning of the ditch and easement by burning or chemical means;and excavation
of the ditch and storage of residue. Landowner, and Landowner's successors and assigns, hereby
agree to indemnify the Ditch Company, its directors,officers and stockholders against any loss from
any claims,demands or actions that may hereafter be brought against any of them as a consequence
of this Agreement or concerning any of the provisions of this Agreement.
8. In any action brought by the Ditch Company to enforce the provisions hereof,
whether legal or equitable, and/or in any action involving Ditch Company and Landowner or any
successor of Landowner whether to enforce the provisions of this Agreement or otherwise,the Ditch
Company shall be entitled to reasonable attorneys' fees as fixed by the court. Venue for all actions
shall be in the Weld County District Court.
. Page 2
• 9. The provisions hereof shall be deemed independent and severable,and the invalidity
or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the
validity or enforceability of any other provision hereof.
10. The terms, covenants, and conditions herein contained shall be binding upon and
inure to the benefit of the successors and assigns of Landowner, the Ditch Company and the
homeowners association,and each of them.The provisions hereof shall constitute covenants running
with the land, burdening and benefiting each and every part of the properties and every interest
therein. In addition,the provisions hereof shall be enforceable in equity as equitable servitudes upon
the land and as covenants in an agreement between owners.This Agreement affects the property and
title of the Subdivision,and this Agreement shall be recorded at the expense of Landowner,and after
recording,the terms,conditions and covenants of this Agreement shall become a covenant running
with the land of the Subdivision. This Agreement shall constitute a benefit and burden on the
Subdivision and this Agreement shall be enforceable by the Ditch Company or any of its
shareholders, or both the Ditch Company and any of its shareholders.
11. The provisions hereof shall be liberally construed to effectuate their purpose of
creating a uniform plan for the development and operation of the Subdivision.Failure to enforce any
provision hereof shall not constitute a waiver of the right to enforce said provision or any other
provision hereof Whenever used in this Agreement,the singular shall include the plural,the plural
the singular,and the use of any gender shall include all genders.This Agreement shall be construed
under the law of the State of Colorado. Time is of the essence of this Agreement.
• 12. The following notes shall be inserted by the Landowner into the permanent covenants
affecting the title to the Subdivision or onto the Subdivision plat:
A. The Ditch Company has the authority to cut and remove trees within its right of way
and it is acknowledged by the owners of the property in the Subdivision that the Ditch Company
will, at an appropriate time, remove any and all such trees on the property. The owners of the
property in the Subdivision acknowledge that the property owners and successor owners may not
plant or otherwise landscape the ditch right of way. The Ditch Company also has the authority to
install and maintain a road along each ditch bank for its purposes.
B. The property owners may not place any fence within the ditch right of way, and
particularly across the right of way;and the property owners shall not to install any gates or fences
near the ditch company right of way without the prior written approval of the Ditch Company.Any
fences approved by the Ditch Company along the ditch easement must be stock-proof to prevent
damage by humans and livestock and other sources to the ditch. There will not be permitted any
livestock watering in the ditch.A chain link type fence should be constructed along the boundary of
the Ditch Company's easement if a fence is to be constructed.Cattle guards instead of gates should
be utilized instead of gates.
C. The property owners acknowledge and understand that there may be subsurface
waters that arise in the area of this development and that there are periods of time when,due to water
flowing within the ditch system and otherwise, that portions of the property receive significant
amounts of subsurface water that is very near to the surface, or resides on the surface. Due to this
problem,the utility of certain portions of the property for construction of structures could potentially
be unavailable. The Ditch Company has no plans to alter its operations as it would cure this surface
• Page 3
• •
• and subsurface water issue.
D. The property owners shall maintain the irrigation and drainage patterns existing on
the date of recording of the plat so that the quality of water entering the ditch from irrigation and
from precipitation and other sources is maintained, and so that there is no change in rate, amount,
point or type of drainage into the ditches that will occur. The property owners shall monitor and
identify any pollutants or other hazardous materials that enter the ditch and should agree to stop any
such deposit in the ditch system.
E. The property owners acknowledge that: 1)No livestock watering,swimming,tubing,
canoeing or other use of the ditch or water in the ditch is allowed; 2) No dumping of refuse,
including but not limited to household garbage, waste materials, grass clippings, tree and shrub
prunings, motor oil, chemicals, pesticides or herbicides is allowed; 3)No pumps for lawn or other
irrigation are allowed in the ditch; 4)No use of the ditch easement for hiking, biking, horseback,
motorcycle, off road vehicles or other motorized or non-motorized vehicle shall be allowed.
F. No crossings of the ditch are permitted without the prior written consent of the Ditch
Company and compliance with the rules, regulations and requirements of the Ditch Company.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement this_day of
, 2008.
THE CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY,a
Colorado mutual irrigation company
By:
• President—Minerva Lee
Secretary—Delbert Helzer
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing was acknowledged before me this_day of ,2008,by Minerva
Lee, as President, and Delbert Helzer, as Secretary of The Consolidated Home Supply Ditch and
Reservoir Company, a Colorado mutual irrigation company.
Witness my hand and official seal.
Notary Public
My commission expires:
4
•
• •
• MERINO CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Burton C. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Burton C. Kross as Manager of Merino Conservation Group, LLC,a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
TWIN VIEW ESTATES,LLC,a Colorado
limited liability company
Landowner
•
By: Stephen C. Greenlee, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this_day of ,2008,
by Stephen C. Greenlee as Manager of Twin View Estates, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
5
•
• •
• PURCELL CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Mark A. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
•
• 6
0 •
Ill
EXHIBIT "A"
COPY OF SUBDIVISION PLAT
r "Jr
Niiiim
•••it at-
t ti; .
i
;- \
•
,� Y
,
its
.r r `
-- - - i- ' N, 'i- ay',r
ill
6 _ 5 • f A 4 —
1
V f
A
U•.--:�_ ��
• t
.� I
1 • t
Jam. .
lk
,: is . 1
$' ."
'C. 4j
PT SE4 5-4-68 LOT A 2ND AMD REC EXEMPT RE-3984
[Owned by Twin View Estates, LLC]
1
•
•
• •
•
a. • • 1,; `1 .3
- ,- .-:i +,- _ 7 -
6
5 .
Z
n u_.
14 A
A
A 2
s , y J
1.
t- .
i - :L1
I
I\ ,, ____•.-1 ' —--
•
.417.-.'"4.%71.2.: • t
;
�J4 .rt.....,_ of ._i� ti •�_ .. . I ' • .. .}j /
r 1yb; � (r t 4 ` tea.. "�'
0.
r .r . _ - ,` mil'#' �4 v n YMJ .. _ . .
''.1:,- . • .1-at 7 i. �� _ - ._- 11 .
ir
y d - 1 z ^•:y r �( t
-ta !I l
• - w-y- • _ • 4 , 9ci e
Y, o• - ,.., . — A
,,,i_.:4. 4G M
ili
;!Y
_lal,.r.,•y... 1
• I
V
• 1
—
CRl9 i r. - •
•
adec« acaa '� - - -- - - � r. L1000 li -,
PT SE4 5-4-68 LOT B 2ND AMD REC EXEMPT RE-3984
[Owned by 80% Twin View Estates, LLC and 20% Purcell Conservation Group, LLC]
2
•
•
• 0
• 4 IL —.. .
,y a
ti cm
R 5 z •
., > r. iiiiii
�•... _ ,
Wi n' ti. cl _ ' .-_}. "', j`
: :
,..,....
V CA' 41i4 . Y _.I
in 11
c ..�C --4��{. �i,2.1 1 ,} �� � . i•^ {t? lYf� 4y fLi'4 r`f� ^_ ' V •
a, 5t `?r Ifl
- ! ' . i ay
•
r� e? e 's' �Y
Yr� . L ;, �, . .,,,,,.. , ,,-..„. •_- ,.E
—�'
' 7
3
•
- • t Cc
a 53 - - _ - _ - - -
I n
� � _
's'; 3 A
M
•
.••_ 44 I :��. '
• . . . )
ti.•-- r ;.s ite
ir
C R ab— � �"""'allt
wcia County.COYJr O . . ' : . 8 , --- •. 9 .117
•
___ ." . a - 000 - ---L. .:1
PT S2NW4 LOT C AMD REC EXEMPT RE-3983
[Owned by Merino Conservation Group, LLC]
3
S
• •
• EXHIBIT"B"
EASEMENT AND RIGHT OF WAY AGREEMENT
This Easement and Right of Way Agreement, made and entered into as of the_day of
, 2008, by and between TWIN VIEW ESTATES, LLC, a Colorado limited liability
company,c/o Stephen C.Greenlee,Manager,3555 Stanford Road,Suite 204,Fort Collins,CO
80525,MERINO CONSERVATION GROUP,LLC,Burton C. Kross,6933 Sedgwick Drive,
Fort Collins, CO 80525,and PURCELL CONSERVATION GROUP,LLC,Mark A. Kross,
7233 Whitworth Court, Fort Collins, CO 80528, hereinafter called "Grantor" (whether
grammatically singular or plural), and The Consolidated Home Supply Ditch and Reservoir
Company, 1650 West 8th Street, Loveland, Colorado 80537, hereinafter called the"Company."
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Grantor hereby grants, sells, conveys and transfers to the Company, its
successors and assigns,the sole,exclusive and permanent right to enter,re-enter,occupy and use the
hereinafter described property to construct,reconstruct,inspect,upgrade,increase size or capacity,
operate, repair, maintain, replace, remove and operate one or more open irrigation ditches and/or
pipelines and/or reservoirs for the storage,transmission,distribution and service of irrigation water,
and all above ground and underground and service appurtenances thereto, including metering
stations, vaults, enclosures, identification signs, checks, headgates, dams and other fixtures, over,
across, under and upon the following described land, situate in the County of Weld, State of
Colorado, to-wit:
The Company's"River Ditch",and the Company's"Lake Ditch"on Lots A,B
• and C of RE-3983 and 3984; being a portion of the North 'A of the South th and
the NW1/4 of Section 5,Township 4 North,Range 68 West of the 6th P.M.,Weld
County, Colorado;
The easement and right of way for both of the ditches shall be 100 feet wide, being 50 feet on each
side of the center line, or 25 feet from the toe of the ditch on each side, whichever is greater.
Grantor further grants to the Company:
(a) The right to grade the easement area for the full width thereof and to extend the cuts
and fills with such grading into and on the land along and outside of the easement to the extent as the
Company may find reasonably necessary;
(b) The right to support the ditches and pipelines across ravines and water courses with
such structures as Company shall deem necessary;
(c) The right of ingress to and egress from the easement over and across all of the land of
Grantor by means of roads and lanes thereon, if such exists, otherwise by such route or routes as
shall occasion the least practicable damage and inconvenience to Grantor;
(d) The right of grading for, constructing, maintaining and using such roads on and
across the lands as the Company may deem necessary in the exercise of the right of ingress and
egress or to provide access to property adjacent to the land;
(e) The right to install, maintain and use gates and/or cattle guards in all fences which
now cross or shall hereafter cross the easement;
(1) The right to mark the location of the easement by suitable markers set in the ground;
•
1
• •
• provided that any such markers remaining after the period of construction shall be placed in fences
or other locations which will not interfere with any reasonable use Grantor shall make of the
easement;
(g) All other rights necessary and incident to the full and complete use and enjoyment of
the right-of-way and easement for the purposes herein granted.
GRANTOR HEREBY COVENANTS AND AGREES:
(a) That Grantor shall not erect or place any permanent building,structure,improvement,
fence or tree on the described easement, and the Company shall not be liable for their removal if
they are so placed, and Grantor agrees, at Grantor's sole expense to so remove such items.
(b) Grantor shall not diminish the ground cover in the easement or over any water lines
and shall not substantially add to the ground cover in the easement or over the water lines or their
appurtenances.
(c) Grantor shall not grant any other easement, right-of-way, permit or license upon,
under or over said property without the written consent of the Company.
(d) Grantor warrants that Grantor is the owner in fee of the above-described lands and
will defend the title thereto against all claims,and that said lands are free and clear of encumbrances
and liens of whatsoever character, except the following: None
IT IS MUTUALLY AGREED BY THE PARTIES:
(a) Grantor reserves all oil,gas and other minerals in,on and under the above-described
lands,and Grantor shall not grant any right in the surface or otherwise that will materially interfere
• with the rights and privileges herein granted to the Company.The Company's access road shall not
be used by Landowner except for agricultural uses;and no commercial or industrial uses(including
use for access to oil or gas well sites) shall be permitted by the Company.
(b) Each and every one of the benefits and burdens of this easement and right-of-way
shall inure to and be binding upon the respective personal representatives,successors,and assigns of
the parties hereto.
IN WITNESS WHEREOF the undersigned has set his hand and seal as Grantor.
GRANTOR
TWIN VIEW ESTATES,LLC,a Colorado limited
liability company,Stephen C. Greenlee,Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,by
Stephen C.Greenlee as Manager of Twin View Estates,LLC,a Colorado limited liability company,
as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
• 2
. • • •
• GRANTOR
MERINO CONSERVATION GROUP, LLC, a
Colorado limited liability company, Burton C.
Kross,Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this_day of ,2008, by
Burton C. Kross as Manager of Merino Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
GRANTOR
PURCELL CONSERVATION GROUP, LLC, a
• Colorado limited liability company, Mark A.
Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this_day of ,2008, by
Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
• 3
• AGREEMENT
This Agreement (the Agreement), is between the CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY(Ditch Company)and MERINO CONSERVATION
GROUP,LLC,Burton C.Kross,6933 Sedgwick Drive,Fort Collins,CO 80525,TWIN VIEW
ESTATES,LLC,Stephen C.Greenlee,3555 Stanford Road,Suite 204,Fort Collins,CO 80525
and PURCELL CONSERVATION GROUP, LLC, Mark A. Kross, 7233 Whitworth Court,
Fort Collins, CO 80528,(Landowner), and is upon the following terms:
I. Landowner is the owner of all of the property known as the Lots A,B and C of RE-
3983 and 3984; being a portion of the North 'A of the South '/z and the NWI/4 of Section 5,
Township 4 North,Range 68 West of the 6th P.M.,Weld County,Colorado,a copy of which is
attached hereto as Exhibit A (the"Subdivision").
2. Landowner desires to obtain approval of the Ditch Company for certain matters
required by the Weld County,Colorado,Board of County Commissioners relating to the conditional
approval of the Subdivision.The Ditch Company's interests will be benefited by the granting of its
approval through the terms and conditions of this Agreement. Therefore the parties acknowledge
that valuable consideration exists for this Agreement among the parties. Landowner shall pay a
permit fee to the Ditch Company of$5,000.00 for each crossing of the ditch of the Ditch Company
which shall be in addition to all other fees or charges required to be paid by the Landowner to the
Ditch Company under the terms of this Agreement. No crossing of the Ditches of the Ditch
Company is authorized by this Agreement.Landowner shall also reimburse the Ditch Company for
• all of its engineering and legal expenses incurred in the review,negotiation and completion of this
Agreement.
3. Landowner may own assessable share(s) of the Ditch Company which has / have
historically been used to irrigate for agricultural purposes the Subdivision. Landowner desires to
continue to have the Subdivision and open space areas irrigated by water from the ditch of the Ditch
Company. Landowner shall obtain all necessary approvals to be able to use such water for such
purposes.
4. The Ditch Company has a right-of-way for its two ditches and appurtenant facilities
shown on the plat attached hereto.Landowner recognizes and confirms said ownership of the Ditch
Company. Landowner agrees to execute an easement in the form of Exhibit B attached hereto to
have the Landowner confirm and convey the property rights of the Ditch Company. The easement
shall be recorded at the expense of the Landowner along with this Agreement.Landowner grants and
confirms to the Ditch Company an exclusive easement for the Ditch Company's two irrigation
ditches and appurtenant facilities as generally depicted on the drawing of the Ditch Company's
system together with rights of ingress and egress for Ditch Company purposes over and across the
Subdivision.
5. Landowner represents and warrants that Landowner is, on the date of execution of
this Agreement, the sole owner of the Subdivision. Landowner may have lien(s) against the
Subdivision, and Landowner will obtain the written consent and acceptance of all lienholders by
• signature on this Agreement prior to its recording. Failure to obtain such written consent and
Page 1
• acceptance from all such lienholders shall cause Landowner to be in default under this Agreement.
6. Landowner will maintain the existing irrigation patterns on the Subdivision,and shall
maintain the quality of water entering the ditch from irrigation,and from runoff from precipitation
and otherwise.There shall be no change made in the rate,amount,point or type of drainage into the
ditch,except as provided in a Final Drainage Plan that has been accepted by Weld County and by the
Ditch Company as provided in this Agreement. Landowner agrees to submit to the Ditch Company
for review a Preliminary and a Final Drainage Plan that shall have been accepted by the Weld
County government. Any changes to the Preliminary Drainage Plan and to the facilities shown or
required by the County and the Ditch Company shall be incorporated into the Final Drainage Plan
and such facilities shall be constructed solely at the expense of the Landowner.Maintenance of all
drainage facilities shall be accomplished by Landowner or Weld County or both.Any facilities that
are not installed or maintained as provided in the Final Drainage Plan shall cause a default under this
Agreement.No facilities that are not described in the Final Drainage Plan and accepted by the Ditch
Company shall be installed. No changes to the Final Drainage Plan shall be made after the Ditch
Company and the County have both accepted the Final Drainage Plan.Landowner agrees that there
may have existed for many years underground drain lines and ditches carrying water across the
properties.Landowner agrees that an easement exists for the underground drain lines and ditches and
Landowner agrees to regularly maintain and repair the lines and ditches on an "as needed" basis
prior to the irrigation season. In the event there is proposed or formed a drainage district under
federal, state or local law or requirement, Landowner agrees to include all of the property with the
boundaries of such district. Landowner and any homeowners association will not cause, permit or
suffer any hazardous material,pollutant or other foreign material to be deposited or discharged into
• the Ditch Company's ditch or the water carried in the ditch.The Landowner will immediately notify
the appropriate governmental agencies and the Ditch Company of any potential or actual such
deposit or discharge by any person.
7. Landowner,and Landowner's successors and assigns,hereby specifically waive all
known or unknown claims,damages,rights of indemnity,rights of contribution or other rights of any
kind or nature for claims,damages,actions,judgments or executions that have arisen or may arise
out of the maintenance,operation or use of the Ditch Company's ditch and easement,including,but
not limited to:flooding due to overflow or breach of the Ditch Company's ditch;washing or erosion
of the ditch bank;cleaning of the ditch and easement by burning or chemical means;and excavation
of the ditch and storage of residue. Landowner, and Landowner's successors and assigns, hereby
agree to indemnify the Ditch Company, its directors,officers and stockholders against any loss from
any claims,demands or actions that may hereafter be brought against any of them as a consequence
of this Agreement or concerning any of the provisions of this Agreement.
8. In any action brought by the Ditch Company to enforce the provisions hereof,
whether legal or equitable, and/or in any action involving Ditch Company and Landowner or any
successor of Landowner whether to enforce the provisions of this Agreement or otherwise,the Ditch
Company shall be entitled to reasonable attorneys' fees as fixed by the court. Venue for all actions
shall be in the Weld County District Court.
9. The provisions hereof shall be deemed independent and severable,and the invalidity
or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the
• Page 2
• validity or enforceability of any other provision hereof.
10. The terms, covenants, and conditions herein contained shall be binding upon and
inure to the benefit of the successors and assigns of Landowner, the Ditch Company and the
homeowners association,and each of them.The provisions hereof shall constitute covenants running
with the land, burdening and benefiting each and every part of the properties and every interest
therein. In addition,the provisions hereof shall be enforceable in equity as equitable servitudes upon
the land and as covenants in an agreement between owners.This Agreement affects the property and
title of the Subdivision,and this Agreement shall be recorded at the expense of Landowner,and after
recording,the terms,conditions and covenants of this Agreement shall become a covenant running
with the land of the Subdivision. This Agreement shall constitute a benefit and burden on the
Subdivision and this Agreement shall be enforceable by the Ditch Company or any of its
shareholders, or both the Ditch Company and any of its shareholders.
11. The provisions hereof shall be liberally construed to effectuate their purpose of
creating a uniform plan for the development and operation of the Subdivision.Failure to enforce any
provision hereof shall not constitute a waiver of the right to enforce said provision or any other
provision hereof Whenever used in this Agreement,the singular shall include the plural,the plural
the singular,and the use of any gender shall include all genders.This Agreement shall be construed
under the law of the State of Colorado. Time is of the essence of this Agreement.
12. The following notes shall be inserted by the Landowner into the permanent covenants
affecting the title to the Subdivision or onto the Subdivision plat:
• A. The Ditch Company has the authority to cut and remove trees within its right of way
and it is acknowledged by the owners of the property in the Subdivision that the Ditch Company
will, at an appropriate time, remove any and all such trees on the property. The owners of the
property in the Subdivision acknowledge that the property owners and successor owners may not
plant or otherwise landscape the ditch right of way. The Ditch Company also has the authority to
install and maintain a road along each ditch bank for its purposes.
B. The property owners may not place any fence within the ditch right of way, and
particularly across the right of way;and the property owners shall not to install any gates or fences
near the ditch company right of way without the prior written approval of the Ditch Company.Any
fences approved by the Ditch Company along the ditch easement must be stock-proof to prevent
damage by humans and livestock and other sources to the ditch. There will not be permitted any
livestock watering in the ditch.A chain link type fence should be constructed along the boundary of
the Ditch Company's easement if a fence is to be constructed. Cattle guards instead of gates should
be utilized instead of gates.
C. The property owners acknowledge and understand that there may be subsurface
waters that arise in the area of this development and that there are periods of time when,due to water
flowing within the ditch system and otherwise, that portions of the property receive significant
amounts of subsurface water that is very near to the surface, or resides on the surface. Due to this
problem,the utility of certain portions of the property for construction of structures could potentially
be unavailable. The Ditch Company has no plans to alter its operations as it would cure this surface
and subsurface water issue.
D. The property owners shall maintain the irrigation and drainage patterns existing on
the date of recording of the plat so that the quality of water entering the ditch from irrigation and
• Page 3
• from precipitation and other sources is maintained, and so that there is no change in rate, amount,
point or type of drainage into the ditches that will occur. The property owners shall monitor and
identify any pollutants or other hazardous materials that enter the ditch and should agree to stop any
such deposit in the ditch system.
E. The property owners acknowledge that: 1)No livestock watering,swimming,tubing,
canoeing or other use of the ditch or water in the ditch is allowed; 2) No dumping of refuse,
including but not limited to household garbage, waste materials, grass clippings, tree and shrub
prunings, motor oil, chemicals, pesticides or herbicides is allowed; 3)No pumps for lawn or other
irrigation are allowed in the ditch; 4) No use of the ditch easement for hiking, biking, horseback,
motorcycle, off road vehicles or other motorized or non-motorized vehicle shall be allowed.
F. No crossings of the ditch are permitted without the prior written consent of the Ditch
Company and compliance with the rules, regulations and requirements of the Ditch Company.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement this_day of
, 2008.
THE CONSOLIDATED HOME SUPPLY
DITCH AND RESERVOIR COMPANY,a
Colorado mutual irrigation company
By:
President—Minerva Lee
Secretary—Delbert Helzer
•
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing was acknowledged before me this_day of ,2008,by Minerva
Lee, as President, and Delbert Helzer, as Secretary of The Consolidated Home Supply Ditch and
Reservoir Company, a Colorado mutual irrigation company.
Witness my hand and official seal.
Notary Public
My commission expires:
• 4
• MERINO CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Burton C. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Burton C. Kross as Manager of Merino Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
TWIN VIEW ESTATES,LLC,a Colorado
limited liability company
Landowner
•
By: Stephen C. Greenlee, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Stephen C. Greenlee as Manager of Twin View Estates, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
5
•
• PURCELL CONSERVATION GROUP,
LLC,a Colorado limited liability company
Landowner
By: Mark A. Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008,
by Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, Landowner.
Witness my hand and official seal.
Notary Public
My commission expires:
•
• 6
• • •
• EXHIBIT "A"
COPY OF SUBDIVISION PLAT
r
. �-
_ti i t
re `.►
• 4
Ql L
5 S. C -
2 jy : ai i
Is •
• ,•••
J
hIli
1 'f • - ..
la
DI
{
f T
j ' Ir� I - 46
d •
r
'`ic •
II
al•.t .r.s.»Y,.a . \
0 I gl.
• ._ . .. t.,,,;,„ ,.
.. _ • ._ _
•
. "
•._ _
,‘„,
...,Nii. •
Yr • _ - -_. . .. .
�SA iJnA1� .:<�_..�._ . ,,,.. . 1. ' , .. ,�`
1. `l.
ra • (.4.716I li . . •
-t
i y
il
L •
'1l a .r. I • .
it
C R t8� i- - •
We4 county,cobraao,' 1 ,,,
_ YlS1 `•SL1L- 1 0 0 0 I i_
PT SE4 5-4-68 LOT A 2ND AMD REC EXEMPT RE-3984
[Owned by Twin View Estates, LLC]
1
0
•
•
• S
: alit� I. ,
r . _,.
• • r�1.0.4..... '•
L
0t.
P. 1 • .
�S ``
•
id. 01:1.4, . . - .. - • ,
/ J I t 1
I W-1, t.Y'.
4 IIA.
,. _ ;N SIC. 1
1J1'
• a
ill
i 41ti.
t.
t • ..,-.3. .: . .
• rrnia_C=
•
Casa �;�'— .
Comity. _.
`1Nddw � i 0 0 0 I .I . --
PT SE4 5-4-68 LOT B 2ND AMD REC EXEMPT RE-3984
[Owned by 80% Twin View Estates, LLC and 20% Purcell Conservation Group, LLC]
2
III
•
•
• 0
0 .. . .,
. • `�{ • •,e'.$4.' G. J i,`t mss • r•4 1 I...----,-,--.',•"-.17..! �•..1{• i
• f;j • l } '•L Y6$ •
_
^ ..."J• L.. t L. 4 _"yak • �t .-.1 'mot i f?-:
el i'K: _ _ h .aJ' 4
" Zt is a. _ .... . . ...,....„...... . 0....-4,!..: .t .iik,. ,
- - •�, - - .ice .. . _tit _ Ilk .. , . •
‘ • ..
• ,. .. ...ate a 1 } - ;.. _c.�rc ,.-. ...�
. .: . _.
N !^J •
• ,
r` `�� - ' � . rc
t-..-..... s_
fir" rl •
t 'of
r . ... ir.: 4.,_,
J-TyY 0wasty .�
1 L
I J ,
. .
... .. . . ,
x.N.
. <.
•
!C• :lin - 1- . .1 ,11•14,41.1 .
if .07: • : . li , i ..-: . --r. 41 0.• - I 1.1PT ' '
s -
• ; .;
Lp'4y •y }
yak
" r t 1
•7. 1' litql 8 --I.': . ....'.•-:w1e c�tnr.ceawde - �,.
PT S2NW4 LOT C AMD REC EXEMPT RE-3983
[Owned by Merino Conservation Group, LLCI
3
III
• EXHIBIT"B"
EASEMENT AND RIGHT OF WAY AGREEMENT
This Easement and Right of Way Agreement, made and entered into as of the_day of
, 2008, by and between TWIN VIEW ESTATES, LLC, a Colorado limited liability
company,c/o Stephen C.Greenlee,Manager,3555 Stanford Road,Suite 204,Fort Collins,CO
80525,MERINO CONSERVATION GROUP,LLC,Burton C. Kross,6933 Sedgwick Drive,
Fort Collins, CO 80525,and PURCELL CONSERVATION GROUP,LLC, Mark A. Kross,
7233 Whitworth Court, Fort Collins, CO 80528, hereinafter called "Grantor" (whether
grammatically singular or plural), and The Consolidated Home Supply Ditch and Reservoir
Company, 1650 West 8th Street, Loveland, Colorado 80537, hereinafter called the "Company."
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Grantor hereby grants, sells, conveys and transfers to the Company, its
successors and assigns,the sole,exclusive and permanent right to enter,re-enter,occupy and use the
hereinafter described property to construct,reconstruct,inspect,upgrade,increase size or capacity,
operate, repair, maintain, replace, remove and operate one or more open irrigation ditches and/or
pipelines and/or reservoirs for the storage,transmission,distribution and service of irrigation water,
and all above ground and underground and service appurtenances thereto, including metering
stations, vaults, enclosures, identification signs, checks, headgates, dams and other fixtures, over,
across, under and upon the following described land, situate in the County of Weld, State of
Colorado,to-wit:
The Company's"River Ditch",and the Company's"Lake Ditch"on Lots A,B
• and C of RE-3983 and 3984; being a portion of the North'/ of the South'%and
the NW1/4 of Section 5,Township 4 North,Range 68 West of the 6th P.M.,Weld
County,Colorado;
The easement and right of way for both of the ditches shall be 100 feet wide,being 50 feet on each
side of the center line, or 25 feet from the toe of the ditch on each side,whichever is greater.
Grantor further grants to the Company:
(a) The right to grade the easement area for the full width thereof and to extend the cuts
and fills with such grading into and on the land along and outside of the easement to the extent as the
Company may find reasonably necessary;
(b) The right to support the ditches and pipelines across ravines and water courses with
such structures as Company shall deem necessary;
(c) The right of ingress to and egress from the easement over and across all of the land of
Grantor by means of roads and lanes thereon, if such exists, otherwise by such route or routes as
shall occasion the least practicable damage and inconvenience to Grantor;
(d) The right of grading for, constructing, maintaining and using such roads on and
across the lands as the Company may deem necessary in the exercise of the right of ingress and
egress or to provide access to property adjacent to the land;
(e) The right to install, maintain and use gates and/or cattle guards in all fences which
now cross or shall hereafter cross the easement;
(f) The right to mark the location of the easement by suitable markers set in the ground;
• 1
• provided that any such markers remaining after the period of construction shall be placed in fences
or other locations which will not interfere with any reasonable use Grantor shall make of the
easement;
(g) All other rights necessary and incident to the full and complete use and enjoyment of
the right-of-way and easement for the purposes herein granted.
GRANTOR HEREBY COVENANTS AND AGREES:
(a) That Grantor shall not erect or place any permanent building,structure,improvement,
fence or tree on the described easement, and the Company shall not be liable for their removal if
they are so placed, and Grantor agrees, at Grantor's sole expense to so remove such items.
(b) Grantor shall not diminish the ground cover in the easement or over any water lines
and shall not substantially add to the ground cover in the easement or over the water lines or their
appurtenances.
(c) Grantor shall not grant any other easement, right-of-way, permit or license upon,
under or over said property without the written consent of the Company.
(d) Grantor warrants that Grantor is the owner in fee of the above-described lands and
will defend the title thereto against all claims,and that said lands are free and clear of encumbrances
and liens of whatsoever character, except the following: None
IT IS MUTUALLY AGREED BY THE PARTIES:
(a) Grantor reserves all oil,gas and other minerals in,on and under the above-described
• lands,and Grantor shall not grant any right in the surface or otherwise that will materially interfere
with the rights and privileges herein granted to the Company.
(b) Each and every one of the benefits and burdens of this easement and right-of-way
shall inure to and be binding upon the respective personal representatives,successors,and assigns of
the parties hereto.
IN WITNESS WHEREOF the undersigned has set his hand and seal as Grantor.
GRANTOR
TWIN VIEW ESTATES,LLC,a Colorado limited
liability company, Stephen C. Greenlee,Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this_day of ,2008, by
Stephen C.Greenlee as Manager of Twin View Estates,LLC,a Colorado limited liability company,
as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
• 2
•
• GRANTOR
MERINO CONSERVATION GROUP, LLC, a
Colorado limited liability company, Burton C.
Kross, Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this_day of ,2008,by
Burton C. Kross as Manager of Merino Conservation Group, LLC, a Colorado limited liability
company,as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
GRANTOR
PURCELL CONSERVATION GROUP, LLC, a
• Colorado limited liability company, Mark A.
Kross,Manager
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this day of ,2008, by
Mark A. Kross as Manager of Purcell Conservation Group, LLC, a Colorado limited liability
company, as Grantor.
Witness my hand and official seal.
Notary Public
My commission expires:
3
•
Hello