HomeMy WebLinkAbout20001884 AGREEMENT
This AGREEMENT is entered into and made effective as of the VII day of
G. EVERIST, INC. an Iowa Corporation
)l.w�„ , 20OO , by.—
and between L. P
-.-
(hereinafter "EVERIST"), and THE LUPTON BOTTOM DITCH COMPANY, a Colorado
company (hereinafter "LUPTON BOTTOM").
.
RECITALS
EVERIST is the real owner of the EVERIST PROPERTY, which is defined as:
EVERIST PROPERTY: The Property is located in the S 1/2 of the NW 'A of Section 30,
Township 2N, Range 66W, Weld County. The Property lies approximately 3 miles north of
Fort Lupton, '/ mile south of Weld County Road 18, and approximately 1 mile west of
Highway 85
LUPTON BOTTOM is the owner of the Lupton Bottom Ditch, a section of which traverses the
EVERIST PROPERTY. LUPTON BOTTOM PROPERTY is defined as:
LUPTON BOTTOM PROPERTY: The Property is located within the EVERIST PROPERTY,
and consists of 1150 feet of the Lupton Bottom Ditch, and fifteen (15) feet from the
centerline of the ditch. LUPTON BOTTOM has permanent easement and right-of-way to
their Property.
For purposes of this agreement, "LUPTON BOTTOM DITCH" hereinafter refers only to the
1150 feet of the Lupton Bottom Ditch which is located within the EVERIST PROPERTY.
EVERIST plans to mine the EVERIST PROPERTY for its sand and gravel reserves.
EVERIST has proposed mining through the LUPTON BOTTOM PROPERTY.
EVERIST has proposed building a temporary ditch in order to maintain water flow while
extracting the sand and gravel resources from the area of the EVERIST PROPERTY which the
LUPTON BOTTOM DITCH traverses.
When mining of the original ditch location is complete, the LUPTON BOTTOM DITCH will be
rebuilt and replaced back into its original position and lined with concrete.
This AGREEMENT has been proposed by both EVERIST and LUPTON BOTTOM in order tc
define and make firm the terms and conditions of the ditch relocation proposal.
TERMS AND CONDITIONS
In consideration of the mutual promises and agreement of the parties herein and subject to the
following terms and conditions, the parties agree as follows
1 The full TERM of this Agreement commences with the effective date, as shown a hnvc aryl
runs until such time as the Agreement is terminated by either or both parties. 2000-1884
AGREEMENT
L G. Evenst lilt and
Lupton Bottom Ditch Company
TERMINATION of the Agreement and the conditions of termination are defined the end cf
the Agreement
2 NOTICE - Any NOTICE pertaining to this agreement shall be in writing and delivered in
person, or mailed by certified return receipt U.S Mail, or by a nationally recognized
overnight courier service, to the party to receive such notice at the following addresses
The Lupton Bottom Ditch Company
P.O. Box 305
Fort Lupton, CO 80621-0305
L. G. Everist, Inc.
7321 East 88th Avenue, Suite 200
Henderson, CO 80640
All NOTICES shall be effective upon receipt by the party to receive such NOTICE, or by The
third day following deposit of said NOTICE in U S. Mail, or the first day following deposit of
said NOTICE to a nationally recognized overnight courier service, or upon
acknowledgement of refusal of delivery of said NOTICE.
3. EVERIST will give NOTICE to LUPTON BOTTOM thirty (30) days prior to commencing any
construction which crosses over or under the DITCH or may, in any way, affect the LUPTON
BOTTOM DITCH.
4. The WARRANTY PERIOD of this Agreement commences with the initial relocation of the
LUPTON BOTTOM DITCH by EVERIST and continues for five (5) years after the
replacement and rebuilding of the LUPTON BOTTOM DITCH has been completed.
NOTICE will be sent to LUPTON BOTTOM thirty (30) days prior to commencing the initial
relocation of the LUPTON BOTTOM DITCH.
NOTICE will be sent to LUPTON BOTTOM upon completion of the replacement and
rebuilding of the LUPTON BOTTOM DITCH; at which time the five (5) year period will begin
Ninety (90) days prior to the end of the WARRANTY PERIOD, the LUPTON BOTTOM
DITCH will be tested by a qualified engineer to ensure that the LUPTON BOTTOM DI TCH is
functioning correctly and is not subject to any major repairs.
If no repairs are required, the WARRANTY PERIOD will end at the end of the five (5) year
period. Should any repairs be required, if they are completed within the ninety (90) days,.
the WARRANTY PERIOD will end at the end of the five (5) year period. If repairs are
required and are not completed before the end of the five (5) year period of the WARRAN T Y
PERIOD, the WARRANTY PERIOD will stay in effect until said repairs have been
completed.
5. For the duration of the WARRANTY PERIOD, EVERIST will agree to the following
a. EVERIST will have the right to mine the LUPTON BOTTOM PROPERTY, and, in whit h
event, will relocate the LUPTON BOTTOM DITCH during a period of no water flow from
November 1, 2002 through February 28, 2003
AGREEMENT
L G. Evenst. Irc and
Lupton Bottom Ditch Company
i. The LUPTON BOTTOM DITCH will be temporarily relocated approximately 175 'eet
east of its original location. (For clarification, while in this temporary relocated
position, the ditch will be referred to as the TEMPORARY DITCH.)
ii. The TEMPORARY DITCH will be constructed to match flowlines at existing
headgates at the north and south ends of the EVERIST PROPERTY.
EVERIST will ensure the potential capability of water flow through the TEMPORARY
DITCH. When there is water flow, EVERIST will measure the water flow upstream
and downstream in the TEMPORARY DITCH, to ensure there are no leaks.
iv. EVERIST will be responsible for repairs and maintenance to the TEMPORARY
DITCH, except in the case of damage done by an employee of, or a person working
for, LUPTON BOTTOM, or any third party. In which case, EVERIST will make the
repairs, and charge the responsible party for the cost of the repairs.
v. EVERIST will build and maintain a temporary maintenance road on the west side of
the TEMPORARY DITCH for use by LUPTON BOTTOM, for the duration of the
TEMPORARY DITCH use.
vi. The TEMPORARY DITCH will be eliminated when the construction on the
PERMANENT DITCH is completed and it is functioning.
b. Within two (2) years after the initial relocation of the original LUPTON BOTTOM DITCH
and the construction of the TEMPORARY DITCH, EVERIST will build a PERMANENT
DITCH at the position of the original LUPTON BOTTOM DITCH. EVERIST will also
build an EMBANKMENT under the PERMANENT DITCH, so as to position the
PERMANENT DITCH at the same height as the original LUPTON BOTTOM DITCH.
i. The PERMANENT DITCH will be lined with concrete approximately four (4) inches
thick with expansion joints every twelve (12) feet.
ii. The dimensions of the PERMANENT DITCH will be approximately twelve (12) feel
wide at the top, by four (4) feet deep, by four (4) feet at the flowline.
iii. The PERMANENT DITCH will be constructed to match flowlines at existing LUPTON
BOTTOM headgates at the north and south ends of the EVERIST PROPERTY.
iv. The EMBANKMENT will consist of weathered shale, bedrock, and overburden from
the mining of the EVERIST PROPERTY and LUPTON BOTTOM PROPERTY
v. The EMBANKMENT will be compacted to ensure against any "settling" of the
EMBANKMENT and subsequent misalignment of the PERMANENT DITCH
vi. EVERIST will construct and maintain a MAINTENANCE ROAD along the west side
of the PERMANENT DITCH, on the EMBANKMENT. The MAINTENANCE ROAD
will be a minimum of ten (10) feet wide and will have approximately one (1) foot of
tapered road base.
vii. Along the east side of the PERMANENT DITCH, the EMBANKMENT will extend ai
the same level of the PERMANENT DITCH approximately two (2) feet to allow for
maintenance of the PERMANENT DITCH
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AGFEIEME.NT
L . Evenst, Inc and
Lupton Bottom Ditch Company
viii. EVERIST will ensure the potential capability of water flow through the PERMANENT
DITCH. When there is water flow, EVERIST will measure the water flow upstream
and downstream in the PERMANENT DITCH, to ensure there are no leaks.
ix. EVERIST will be responsible for repairs and maintenance to the MAINTENANCE
ROAD, the PERMANENT DITCH, and the EMBANKMENT, except in the case of
damage done by an employee of, or a person working for, LUPTON BOTTOM o-
any third party. In which case, EVERIST will make the repairs, and charge the
responsible party for the cost of the repairs.
x. EVERIST will bond the construction of the PERMANENT DITCH and the
EMBANKMENT to the specifications that are standard to the canal lining industry
and will inspect the work at all phases of construction to ensure that these
specifications are being met.
6. At the completion of the WARRANTY PERIOD, EVERIST will release its construction bond
on the PERMANENT DITCH and the EMBANKMENT, and LUPTON BOTTOM will provide
reasonable cooperation to help EVERIST in the release of its bond.
7. At the completion of the WARRANTY PERIOD, LUPTON BOTTOM will take responsibility
for the maintenance and repair of the PERMANENT DITCH and two (2) feet on the west and
east sides of the DITCH.
8. EVERIST is not responsible for the functioning of the Lupton Bottom Ditch outside of the
EVERIST PROPERTY, nor for the management of the flow of water through the headgates
to or from other properties.
9. For as long as they own the EVERIST PROPERTY:
a. EVERIST will maintain the MAINTENANCE ROAD and the EMBANKMENT. EVERIST
will be responsible for repairs and maintenance to the MAINTENANCE ROAD and
EMBANKMENT, except in the case of damage done by an employee of, or a person
working for, LUPTON BOTTOM, or any third party. In which case, EVERIST will make
the repairs. and charge the responsible party for the cost of the repairs.
b. EVERIST will accept liability for any damage caused to the PERMANENT DITCH by
EVERIST employees and will either make the repairs or reimburse LUPTON BOTTOM
for the cost of the repairs to the PERMANENT DITCH.
c. EVERIST will maintain perimeter security to exclude any use by third parties.
10. By entering into this Agreement, the parties do not intend, either expressly or implicitly, to
create a joint venture or partnership. Except as provided herein, neither party shall have the
right or authority to act for, or on the behalf of, or to enter into any obligations binding on tie
other party to this Agreement.
11. FORCE MAJEURE - The failure of either party to perform any of its respective obligations
hereunder by reason of acts of God, strike, or acts of any governmental agency or authority
having jurisdiction over matters set forth herein shall excuse timely performance of such
obligations, but shall not excuse the performance of such obligations as soon as reasonably
practical. The parties may, however, mutually consent or excuse a party from performing
any obligation, in whole or in part, upon a showing that performance has been rendered
impracticable by reason of FORCE MAJEURE
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AGR E EMI_NT
L G. Evenst, Inc and
Lupton Bottom Ditch Company
12 ASSIGNMENT - This Agreement may not be assigned in whole or in part by either party
hereto without the written consent of the other party. Such consent not to be reasonably
withheld, conditioned, or delayed.
13. TERMINATION - This Agreement will TERMINATE when either EVERIST or LUPTON
BOTTOM sells its operation, cease operating, file bankruptcy, or in any way releases
ownership of their Property.
a. Should either EVERIST or LUPTON BOTTOM sell its operation, cease operating, file
bankruptcy, or in any way release ownership of their Property, NOTICE should be given
by the party releasing their Property to the other party a minimum of thirty (30) days
before the release of ownership occurs.
b. In the event that either party should sell its operation, cease operating, file bankruptcy,
or in any way release ownership of their Property, the other party shall have the option of
immediate TERMINATION of this Agreement.
c. In the event that EVERIST, in any way, releases ownership of the EVERIST
PROPERTY to another party, prior to the TERMINATION of this Agreement, EVERIST
must have the PERMANENT DITCH fenced along the perimeter of the original
easement given to LUPTON BOTTOM which was in place prior to this Agreement. After
said fencing is completed, the Agreement will TERMINATE and EVERIST is then
released from any further obligations.
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AGREEMENT
L G. Evenst, Inc and
Lupton Bottom Ditch Company
RESOLUTION
RE APPROVE AGREEMENT WITH L. G. EVERIST, INC. (hereinafter "EVERIST"), ANC
AUTHORIZE THE LUPTON BOTTOM DITCH COMPANY BOARD (hereinafter
"BOARD) PRESIDENT TO SIGN
WHEREAS. the BOARD is vested with the authority of administering the affairs of THE
LUPTON BOTTOM DITCH COMPANY (hereinafter "[UPTON BOTTOM") and
WHEREAS. the BOARD has been presented with the Agreement with EVERIST,commencing on the effective date of the Agreement, that date being the _ (' day Y of
•1O N . _, 20 OO , with the further terms and conditions being stated in said
Agreement, and
WHEREAS, after review, the BOARD deems it advisable to approve said Agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW THEREFORE, BE IT RESOLVED by the BOARD that this Agreement with EVERIST
be, and hereby is, approved.
BE IT FURTHER RESOLVED by the BOARD that the PRESIDENT be, and hereby is,
authorized to sign said Agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by
the following vote on the (.2 -(1 day of U 6 , 20 ClG
LUPTON BOTTOM DITCH COMPANY BOARD
cca r,—
Gene Wagner, President
Joe Miller, V'ce President
c,1
f,
ty-4, Qa
Howard Cantrell, Secretary-Treasurer
AGREEMENT
L Evensl, Im and
Lupton Bottom Ditch Company
IN WITNESS WHEREOF,)he parties hereto have signed this Agreement this, the
t1 day of S J1Vt , 209C .
LUPTON BOTTOM DITCH COMPANY BOARD
.49 ,c-.,,— LA)
Gene Wagner, President
STATE OF -iU ��L- )
) ss.
COUNTY OF 0 -!_G C� )
On this, the � day of `-�irtl lc , 20 `�0 , before me personally
appeared the above person and ackndwledged that he executed the same on behalf of L G.
EVERIST, INC. for the purpose herein contained.
IN WITNE OF, I hereunder set my hand and official seal.
i Vii �) • My Commission expires kilt Cl-b .) t
Nota P C0 •
aNVERSE I
My Comm.Expires Jan. 1,2002
AGR[El MENT
L.G Evens!. Inc and
Lupton Bottom Ditch Company
IN WITNESS WHEREOF, the parties hereto have signed this Agreement this, the
(G; day of , 20 DC'
L. . ST, INC.
R.A. erist, Jr., Vice President
STATE OF t, Lt Lu LL )
I ) ss.
COUNTY OF •
On this, the day of Lx 11e , 20 Ul; , before me personally
appeared the above person and ackno ledged that he executed the same on behalf of L.G
EVERIST, INC. for the purpose herein contained.
IN WITN 1C!rJ I hereunder set my hand and official seal.
f/ x3I. 'vJ'ILt l - My Commission expires " I •i � Lk
Notary 0 o . 3
4TF OF.CO -
My Comm.Expires Jan.t,2002
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