HomeMy WebLinkAbout20180956.tiffRESOLUTION
RE: APPROVE ASSIGNMENT AND CONSENT TO ASSIGNMENT OF MAINTENANCE,
OPERATION, AND ACCESS AGREEMENT AND AUTHORIZE CHAIR TO SIGN -
VARRA COMPANIES, INC. / SAND LAND, INC. / SAND LAND PROPERTIES, LLC /
AND GROUND WATER MANAGEMENT SUBDISTRICT OF THE CENTRAL
COLORADO WATER CONSERVANCY DISTRICT, WATER ACTIVITY ENTERPRISE
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Assignment and Consent to
Assignment of Maintenance, Operation, and Access Agreement among the County of Weld, State
of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of
the Department of Department of Public Works, and Varra Companies, Inc., Sand Land, Inc.,
Sand Land Properties, LLC, and Ground Water Management Subdistrict of the Central Colorado
Water Conservancy District, by and through its Water Activity Enterprise, commencing upon full
execution of signatures, with further terms and conditions being as stated in said assignment of
agreement, and
WHEREAS, after review, the Board deems it advisable to approve said assignment of
agreement, a copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that Assignment and Consent to Assignment of Maintenance, Operation, and
Access Agreement among the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Department of Department of Public
Works, and Varra Companies, Inc., Sand Land, Inc., Sand Land Properties, LLC, and Ground
Water Management Subdistrict of the Central Colorado Water Conservancy District, by and
through its Water Activity Enterprise, be and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said assignment of agreement.
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2018-0956
EG0075
ASSIGNMENT AND CONSENT TO ASSIGNMENT - VARRA COMPANIES, INC. / SAND
LAND, INC. / SAND LAND PROPERTIES, LLC / AND GROUND WATER MANAGEMENT
SUBDISTRICT OF THE CENTRAL COLORADO WATER CONSERVANCY DISTRICT, WATER
ACTIVITY ENTERPRISE
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 28th day of March, A.D., 2018.
BOARD OF COUNTY COMMISSIONERS
WELD QQUNTY, COLORADO
ATTEST: ddz/(44)
Weld County Clerk to the
County Attorney
Date of signature: 0/71/
St : e Moreno, Chair
Mike Freeman
2018-0956
EG0075
ASSIGNMENT AND CONSENT TO ASSIGNMENT OF MAINTENANCE,
OPERATION, AND ACCESS AGREEMENT
This ASSIGNMENT AND CONSENT TO ASSIGNMENT OF MAINTENANCE,
OPERATION, AND ACCESS AGREEMENT ("Assignment and Consent"), is by and among
Weld County, by and through the Board of County Commissioners of Weld County,
("Assignor"), Varra Companies, Inc., Sand Land, Inc., and Sand Land Properties, LLC.,
(hereinafter collectively, "Varra"), and Ground Water Management Subdistrict of the Central
Colorado Water Conservancy District by and Through its Water Activity Enterprise
("Assignee").
RECITALS:
County and Varra are parties to that certain Maintenance, Operation, and Access
Agreement ("Original Agreement"), approved by the Board of County Commissioners of Weld
County on May 30, 2012, listed as Weld County Document Number 2012-1329, recorded in
Weld County Records at Recording Number 3850908, and attached hereto and incorporated
herein. The Original Agreement may not be assigned without the express written consent of the
other party, and the written agreement of the party to whom the obligations are assigned.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor, Varra and Assignee hereby agree as follows:
1. Assignment. Assignor hereby assigns the Original Agreement to Assignee, with
Assignee assuming all of the obligations and rights of Assignor thereunder arising from and after
the effective date of this Assignment and Consent. Assignee hereby accepts such assignment.
Nothing in this assignment nor in the Original Agreement shall be construed as a waiver of
Assignee's immunity under the Colorado Constitution and/or the Governmental Immunity Act.
Assignee and Varra further release Assignor from all obligations, liabilities and/or
responsibilities associated with the Original Agreement.
2. Acknowledgements and Confirmations by Assignor. Assignor hereby confirms that
the Original Agreement is in full force, and effect, and except as stated herein, there are no other
amendments or other agreements modifying the terms of the Original Agreement. To Assignor's
knowledge, Assignor is not in default under the Original Agreement and has performed all duties
and obligations required under the term of the Original Agreement as of the date of this
Assignment and Consent (including, without limitation, the payment of all expenses or amounts
which may have been incurred by the Assignor and/or Varra previous to this Assignment and
Consent). Assignor has not assigned or transferred the Original Agreement or any interest
therein.
3. Varra's Consent. Varra hereby consents to this Assignment and Consent. In
connection with such consent, Varra hereby confirms that the Original Agreement is in full force,
and effect and except as stated herein, there are no other amendments or other agreements
modifying the tetins of the Original Agreement. Varra affirms that Assignor is not in default
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Carly Koppes, Clerk and Recorder, Weld County, CO
VIII kriditilhAillisitilIMItIi Ill III
2018-0956
under the Original Agreement and has performed all duties and obligations required under the
term of the Original Agreement as of the date of this Assignment and Consent (including,
without limitation, the payment of all expenses or amounts which may have been incurred by the
Assignor and/or Varra previous to this Assignment and Consent).
4. Successors. The provisions of this Assignment and Consent shall bind and the benefits
shall inure to the heirs, representative, successors, and assigns of the parties hereto.
5. Severability. If any provision of this Assignment and Consent shall be held invalid or
unenforceable for any reason or to any extent, the remainder of this Assignment and Consent or
the application of the term or provision to persons or circumstances other than those as to whom
or with respect to which it is held invalid or unenforceable, shall not be affected, and each shall
be valid and enforceable to the fullest extent permitted by law. As between Assignor and
Assignee, this Assignment and Consent is subject to the terms and conditions of any other
written agreement by and among Assignor and Assignee. In the event of any conflict between
this Assignment and Consent and any other written agreement, this Assignment and Consent
shall control.
6. Governing Law. This Assignment and Consent shall be governed by, and constructed
in accordance with, the laws of the State of Colorado.
7. Counterparts. This Assignment and Consent may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same agreement. This Assignment and Consent may be executed by facsimile or other electronic
signature and such electronic signature shall constitute an original for all purposes.
8. Notices. All notices, requests, concerns, approvals, payments in connection with this
Assignment and Consent, or communications that either party desires or is required or permitted
to give or make to the other party under the Original Agreement, shall only be deemed to have
been given, made and delivered, when made or given in writing and personally served, or
deposited with a reputable overnight courier such as FedEx, postage prepaid, and addressed to
the recipient parties as follows:
If to Assignor:
If to Assignee:
Weld County Director of Public Works
PO Box 758
Greeley, CO 80632
970-304-6496
Ground Water Management Subdistrict of the
Central Colorado Water Conservancy District by
and Through its Water Activity Enterprise
3209 W 28th St
Greeley, CO 80632
970-330-4540
If to Varra: Varra Companies
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Carly Koppes, Clerk and Recorder, Weld County, CO
'Haiti1I II
Attention: Garrett Varra
8120 Gage St
Frederick, CO 80516
970-666-6657
With a copy to:
Weld County Attorney's Office
1150 'O' Street
Greeley, Colorado 80632
9. Recording. Assignee shall, at its cost, cause this Assignment and Consent to be
recorded in the real property records of Weld County, Colorado. Upon such recording, this
Assignment and Consent shall constitute record notice of the existence of the Original
Agreement and the assignment thereof to Assignee. Reference should be made to the Original
Agreement for a full description of the rights and duties of the parties thereto.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment.
VARRA: ��/
By: K,'4 -
Name: G,arf c.' 14-1-
Title: V�.
STATE OF Cb (ad°
°
COUNTY OF Wet d
) SS:
)
The foregoing instrument was acknowledged before me this 2.).(day of
ruu_vv�
2 by G acknowledged Va. vv
WITNESS my hand and official seal
My commission expires:
D'1.4 2
JESSICA HOOVER
NOTARY PUBLIC ►
' STATE OF COLORADO
NOTARY ID 20044035571
MYCOMMISSION E)PIRESOCTOBER04,2020 ►
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Carly Koppes, Clerk and Recorder, Weld County, CO
lilt Mr114ill li ' F IMVIOTI PIV MI III
3
ASSIGNEE:
Ground Water Management
Subdistrict of the Central Colorado Water
Conservancy District by and Through its Water
Activity Enterprise
STATE OF C 0 t r-xck)
COUNTY OF LcD,c4
) SS:
By:
Name:
Title:
-r
Ae/issemi"
he foregoing instrument was acknowledged befo e me this 3 day of
201,�by
G
WITNESS my hand and official seal
My commission expires: `-
TAMMY J RUSCH
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20134030345
MY C$IjUSiN EXPIRES MAY 13, 2021
Weld County Clerk to the Board
By:
Deputy Clerk to the Board
ASSIGNOR:
Weld County, by and through the
Board of County Commissioners of Weld
County, Colorado
By: (Se NE)Cr PAGE)
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Carly Koppes, Clerk and Recorder, Weld County, CO
iii IMICIICIAN IA II II
Julie Cozad, Chair
ASSIGNEE:
Ground Water Management
Subdistrict of the Central Colorado Water
Conservancy District by and Through its Water
Activity Enterprise
STATE OF
COUNTY OF
) SS:
By:
Name:
Title:
(See AeEv' s r'AG Ej
The foregoing instrument was acknowledged before me this day of
2017 by
WITNESS my hand and official seal
My commission expires:
Notary Public
ASSIGNOR:
ATTEST: Weld County, by and through the
Board of County Commissioners of Weld
County, Colorado
Weld County Clerk to the Board
By:
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Carly Koppes, Clerk and Recorder, Weld County, CO
�.rkilifit 14 N0414 IN
Steve Moreno, Chair
MAR 2 8 2018
X0/8-09�
MAINTENANCE, OPERATION AND ACCESS AGREEMENT
THIS AGREEMENT (hereinafter "AGREEMENT"), is by and between WELD
COUNTY, (hereinafter "COUNTY") and VARRA COMPANIES. INC., SAND LAND, INC., and
SAND LAND PROPERTIES, LW., (hereinafter collectively "VARRA").
WITNF.SSETH;
WHEREAS, COUNTY owns, manages and controls a portion of the NW 1/4 of Section 2,
Township 2 North (T2N), Range 68 West (R68W) of the Sixth Principle Meridian (6th P.M.), Weld
County, Colorado (hereinafter "COUNTY PREMISES") which contains that certain Gravel Pit
known as the Hokestra Gravel Pit; and
WHEREAS, SAND LAND, INC. AND SAND LAND PROPERTIES, LW. owns and
controls, and VARRA COMPANIES, INC. manages and operates a portion of the S I/2 of Section 2,
Township 2 North, (T2N), Range 68 West (R68W) of the Sixth Principle Meridian (6'h P.M.), Weld
County, Colorado (hereinafter "VARRA PREMISES"); and
WHEREAS, an earthen ditch and 15 feet for access road lies north of and adjacent to the
Rural Ditch then running parallel to the Rural Ditch are located on the VARRA PREMISES to the
point where the ditch crosses under WCR 24.5, at which point the ditch is located on COUNTY
PREMISES where it runs along the eastern edge of the COUNTY PREMISES (hereinafter
collectively "DITCHES"), as more particularly described and shown on Exhibit I, which is attached
hereto and by this reference made a part hereof; and
WHEREAS, COUNTY owns, has interests in, manages and otherwise controls the operation
of the DITCHES located upon the COUNTY PREMISES; and
WHEREAS, SAND LAND, INC. AND SAND LAND PROPERTIES, LLC. owns, and
VARRA COMPANIES, INC. manages and controls, the operation of the DITCHES located upon
the VARRA PREMISES; and
WHEREAS, the headgate for the DITCHES on the Rural Ditch is used by the COUNTY
and VARRA and is located approximately 2,490 feet from the west section line and 1,810 feet from
the south section line in the NEI/4 of the SW 1/4 of Section 2, T2N. R68W of the 6h P.M. on the
VARRA PREMISES and is shown on Exhibit I; and
WHEREAS, the County recently paid a total of $2,950 to the Rural Ditch Company for the
rehabilitation of the headgate for the DITCHES on the Rural Ditch (the "Headgate Repair Costs");
and
WHEREAS, COUNTY owns three and three quarters (3.75) shares of the capital stock of
the Rural Ditch Company (hereinafter "COUNTY SHARES") that have historically been delivered
through the DITCHES and irrigated portions of the COUNTY PREMISES that COUNTY now uses
as an augmentation supply; and
WHEREAS, COUNTY may in the future seek to deliver other water owned, leased or
otherwise controlled by the COUNTY through the DITCHES for delivery to the Hoekstra Pit or to
the Saint Vrain River (hereinafter "COUNTY WATER"); and
WHEREAS, VARRA COMPANIES, INC. owns four (4) shares of the capital stock of the
Rural Ditch Company (hereinafter "VARRA SHARES") that are used as an augmentation supply;
and
WHEREAS, two (2) of the four (4) VARRA SHARES were historically delivered from the
Rural Ditch via the DITCHES to the VARRA PREMISES and since approximately 2002 these 2
VARRA SHARES have been delivered with the COUNTY's consent via the DITCHES across the
COUNTY PREMISES to the Saint Vrain River, and
WHEREAS, the other two (2) VARRA SHARES were historically delivered from the Rural
Ditch and used at another location; and
WHEREAS, SAND LAND, INC. and VARRA COMPANIES, INC. own water rights
decreed in Case No. 01CW274 and may appropriate or acquire other water rights which may be
diverted at the Rural Ditch and delivered via the DITCHES to the VARRA PREMISES for decreed
uses and via the DITCHES across the COUNTY PREMISES to the Saint Vrain River for decreed
uses (hereinafter "VARRA WATER"); and
WHEREAS, COUNTY and VARRA desire to facilitate the conveyance of the COUNTY
SHARES, the COUNTY WATER, the VARRA SHARES, and the VARRA WATER through the
DITCHES for delivery to the Saint Vrain River for the purpose of augmentation and other
beneficial uses.
NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties
hereto, IT IS HEREBY AGREED AS FOLLOWS:
1. VARRA agrees to allow COUNTY to convey the COUNTY SHARES and COUNTY
WATER through the DITCHES located on the VARRA PREMISES for delivery to the
Hokestra Pit or to the Saint Vrain River during the term of this AGREEMENT and
COUNTY agrees to allow VARRA to convey the VARRA SHARES and VARRA WATER
through the DITCHES located on the COUNTY PREMISES for delivery to the Saint Vrain
River during the term of this AGREEMENT.
2. COUNTY and VARRA COMPANIES, INC. agree to construct one or more augmentation
structure(s) comprised of a flume or other measuring device and a continuous recorder as
required by the Colorado Division of Water Resources (hereinafter "STRUCTURES") in the
DITCHES to measure the COUNTY SHARES, the COUNTY WATER, the VARRA
SHARES and the VARRA WATER delivered from the Rural Ditch to the DITCHES and
from the DITCHES to the Saint Vrain River at the locations generally shown on Exhibit 1
and in accordance with the drawings and plans to be prepared and submitted by the
COUNTY within 90 days of the date of this AGREEMENT and accepted and agreed to by
VARRA (hereinafter "the CONSTRUCTION PLANS"). COUNTY and VARRA
COMPANIES, INC. shall split costs of the CONSTRUCTION PLANS and the construction,
operation, maintenance and repair of the STRUCTURES 50% by COUNTY and 50% by
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VARRA COMPANIES, INC. The COUNTY shall receive a credit for up to 'h of the
Headgate Repair Costs towards its share of these costs. COUNTY and VARRA shall
jointly own the STRUCTURES.
3. The parties agree that the DITCHES currently have the capacity to carry 3.5 c.f.s. from the
Rural Ditch to the Saint Vrain River. The parties agree to enlarge the DITCHES so that they
can safely carry a total of 8.7 c.f.s from the Rural Ditch to the Saint Vrain River. The cost
of the enlargement of the DITCHES shall be divided so that the COUNTY pays for 50% of
said enlargement and VARRA COMPANIES, INC. pays for 50% of said enlargement.
4. COUNTY and VARRA COMPANIES, INC. shall work together to obtain the Rural Ditch
Company's approval as necessary related to the installation and use of the STRUCTURES
to measure water from the Rural Ditch and to perform any work on the Rural Ditch that may
be necessary to facilitate delivery of the COUNTY SHARES, the COUNTY WATER, the
VARRA SHARES, and the VARRA WATER into the DITCHES.
5. All work done on the DITCHES and STRUCTURES may be performed by either the
COUNTY and/or the COUNTY'S representatives or VARRA COMPANIES, INC. with
payment and/or reimbursement by the party that does not perform such work pursuant to the
percentages set forth in paragraph 2 unless otherwise agreed to in writing between
COUNTY and VARRA COMPANIES, INC. Except in an emergency which requires
immediate repairs as detailed in paragraph 6 below, COUNTY and VARRA shall confer
with each other regarding access or any repairs, inspections, operations, and/or maintenance
that must be performed and document their agreement on the same in writing prior to
performing the work; however, this provision shall not apply to ordinary maintenance
activities which may be performed by COUNTY or VARRA COMPANIES, INC. in their
sole discretion. Neither party shall unreasonably object to such access or the performance of
any such inspections, operations, maintenance or repair work. Furthermore, the parties
agree that prevention of damage to the DITCHES and STRUCTURES and prevention of
unplanned discharges shall be the goal of maintenance and repair work.
6. In the event conditions are present which would cause damage to the COUNTY PREMISES
or the VARRA PREMISES, an immediate threat to public health and safety or would
otherwise render the DITCHES and STRUCTURES unusable for their intended purpose
(hereinafter "EMERGENY CONDITION"), either party shall, after inspection, notify the
other of such EMERGENCY CONDITION and both parties will thereafter cause all water
deliveries through the damaged portion of DITCHES or STRUCTURES to cease until
adequate repairs can be made. Contact information for VARRA and COUNTY
representatives to be notified in the event of EMERGENCY CONDITION are set forth in
paragraph 16. In an EMERGENCY CONDITION, either party shall identify the emergency
repair(s) required and shall consult with the other party on the extent, type, timing, materials
and quality of repair (i.e. temporary versus permanent) within twenty-four (24) hours after
receipt of such notice and shall commence such emergency repair within forty-eight (48)
hours after receipt of such notice. If such repair is not commenced within such forty-eight
(48) hour period, the other party shall have the right to perform such repair. The parties
recognize temporary cessation of water deliveries may be necessary to facilitate the repairs.
The party commencing the emergency repairs shall notify the other party of the expected
length and duration of repair work and associated curtailment of use of the subject facilities.
3
7. COUNTY grants VARRA an easement to access the STRUCTURES and use the portion of
the DITCHES located on COUNTY PREMISES consistent with this Agreement as
reasonably necessary for VARRA to access, construct, repair, maintain, replace, inspect, and
operate the STRUCTURES and DITCHES located on the COUNTY PREMISES so as to
effectuate the measurement and delivery of the VARRA SHARES and VARRA WATER
and to obtain readings on recording devices installed on the STRUCTURES located on the
COUNTY PREMISES in order for VARRA to complete any accounting necessary and
required for the VARRA SHARES and the VARRA WATER. SAND LAND, INC. and
SAND LAND PROPERTIES, LLC grant COUNTY an easement to access the
STRUCTURES and use the portion of the DITCHES located on the VARRA PREMISES
consistent with this Agreement as reasonably necessary for COUNTY to access, construct,
repair, maintain, replace, inspect, and operate the STRUCTURES and the DITCHES located
on the VARRA PREMISES so as to effectuate the measurement and delivery of the
COUNTY SHARES and COUNTY WATER and to obtain readings on recording devices
installed on the STRUCTURES located on the VARRA PREMISES in order for COUNTY
to complete any accounting necessary and required for the COUNTY SHARES and
COUNTY WATER. The approximate size and location of the easements granted in this
paragraph 6 are generally shown on the map attached as Appendix 1. During construction
and installation of the DITCHES and STRUCTURES the easement for the DITCHES and
STRUCTURES shall extend 50 feet from the centerline of the DITCHES to allow for
construction work along the DITCHES. Upon completion of the construction and
installation of the DITCHES and STRUCTURES, the easement shall be 20 feet from the
centerline of the DITCHES and STRUCTURES. Following installation and construction of
the STRUCTURES and DITCHES, the parties shall complete and mutually agree upon an
"as built" survey of the STRUCTURES and DITCHES herein which shall also show and
define the easements granted herein (hereinafter the "SURVEY"). The SURVEY shall be
recorded along with this Agreement with the Weld County Clerk and Recorder.
8. COUNTY and VARRA shall each bear a proportionate amount of ditch loss in the
DITCHES based on the amount of water delivered by each party through the DITCHES as
measured at the STRUCTURES. COUNTY and VARRA shall coordinate and share
information regarding the daily amount of water each party runs in the DITCHES in order
that they can determine and/or calculate the appropriate amount of ditch loss attributable to
each party.
9. The rights of COUNTY and VARRA granted herein to use the STRUCTURES and the
DITCHES to convey and deliver the COUNTY SHARES, the COUNTY WATER, the
VARRA SHARES and the VARRA WATER shall be equal in priority with the COUNTY
entitled to first use of 4.35 c.f.s. and VARRA entitled to first use of 4.35 c.f.s. of the
capacity in the DITCHES following the enlargement described in paragraph 3 above. In
addition, each party shall be entitled to use the other party's capacity in the DITCHES when
that party is not using its capacity subject to the provisions of paragraph 10 below. The
COUNTY may further enlarge the DITCHES at its sole expense so as to facilitate the
delivery of water from the Rural Ditch to the Hoekstra Pit and water stored in the Hoekstra
Pit to the Saint Vrain River; provided, the COUNTY contact and obtain the prior written
agreement of VARRA for work done on the DITCHES and on or in the VARRA
PREMISES which agreement shall specify in writing the terms of use for such excess
4
capacity. In addition, VARRA may further enlarge the DITCHES at their sole expense so as
to facilitate the delivery of water stored in the 112 Pit to the Saint Vrain River or for other
purposes; provided, VARRA contacts and obtains the prior written agreement of the
COUNTY for work done on the DITCHES and on or in the COUNTY PREMISES which
agreement shall specify in writing the terms of use for such excess capacity. The parties
further agree to jointly investigate the potential costs and benefits of piping all or parts of the
DITCHES from the Rural Ditch to the Saint Vrain River.
10. If and when one party to this Agreement is not fully utilizing their capacity in the DITCHES
as defined in paragraph 9 above, the other party may use said capacity after it has provided
formal written notice to the non -using party that it intends to use the capacity which notice
shall include a schedule showing the amounts and times during which it proposes to use the
capacity and the amount of compensation, if any, to be paid for said temporary use. Use of
the capacity shall not commence until the non -using party has agreed to and approved said
notice in writing. Any use of capacity under this paragraph 10 shall immediately cease upon
notice by the non -using party that it desires to begin using all or part of its capacity as
defined in paragraph 9.
11. VARRA'S and the COUNTY'S use of the DITCHES and/or STRUCTURES under this
AGREEMENT do not extend to other persons or entities, except upon prior written
agreement of VARRA and the COUNTY which agreement shall specify in writing the terms
of such use by other persons or entities and an agreement between VARRA, COUNTY and
the other person or entity's which binds the other person or entity to, among other things, a
schedule of the time and amounts of use and agreement regarding payments to be made to
COUNTY and/or VARRA associated with the other person or entity's use of the DITCHES
and/or STRUCTURES and such other agreements, indemnifications, obligations or duties to
be undertaken by the other person or entity in connection with their use of the DITCHES
and/or STRUCTURES.
12. COUNTY retains fee ownership of the DITCHES located on COUNTY PREMISES, and
retains the total and absolute authority to manage and control the COUNTY PREMISES and
the DITCHES located on the COUNTY PREMISES except as provided by this Agreement.
SAND LAND, INC. and SAND LAND PROPERTIES, LLC retain fee ownership of the
VARRA PREMISES and the absolute authority to manage and control the VARRA
PREMISES. SAND LAND, INC. and SAND LAND PROPERTIES, LLC retain fee
ownership of the DITCHES located on the VARRA PREMISES and retain the total and
absolute authority to manage and control the DITCHES located on the VARRA PREMISES.
In an emergency, VARRA or COUNTY may deem it necessary to temporarily suspend the
conveyance of water in the DITCHES and/or the STRUCTURE(S). In such an event, the
parties shall follow the protocol set forth in paragraph 6 above and the parties agree not to
hold the party temporarily suspending conveyance of water liable for such temporary
suspension; however, the party temporarily suspending conveyance of water shall use all
reasonable diligence to resume the conveyance and delivery of the COUNTY SHARES, the
COUNTY WATER, the VARRA SHARES, and the VARRA WATER as quickly as is
reasonably possible. VARRA and COUNTY recognize that the COUNTY PREMISES and
the VARRA PREMISES are currently being mined and as such, access and or use of either
the COUNTY PREMISES or the VARRA PREMISES may be limited by requirements of
any mining permit or other regulations of the State of Colorado.
5
13. VARRA agrees to indemnify and to hold COUNTY harmless of and from any claims or
cause of action from third parties against COUNTY arising out of VARRA'S use of the
DITCHES and the STRUCTURES located on the COUNTY PREMISES pursuant to the
rights granted by this AGREEMENT. VARRA shall indemnify and hold harmless the
COUNTY from any and all liability loss and damage COUNTY may suffer as a result of all
suits, actions or claims of every nature and description caused by, arising from, or on
account of said design and construction of the DITCHES and STRUCTURES, and pay any
and all judgments rendered against the COUNTY on account of any such suit, action or
claim, together with all reasonable expenses and attorney fees incurred by COUNTY in
defending such suit, action or claim whether the liability, loss or damage is caused by, or
arises out of the negligence of the COUNTY or its officers, agents, employees, or otherwise
except for the liability, loss, or damage arising from the intentional torts or the gross
negligence of the COUNTY or its employees while acting within the scope of their
employment. All contractors and other employees engaged in construction of the
improvements under this AGREEMENT shall maintain adequate worker's compensation
insurance and public liability insurance coverage, and shall operate in strict accordance with
the laws and regulations of the State of Colorado governing occupational safety and health.
14. To the extent allowed by law and as otherwise consistent with paragraph 13 above, the
COUNTY does hereby indemnify, defend and agree to hold VARRA harmless from any
claims or cause of action from third parties against VARRA arising out of COUNTY'S use
of the DITCHES and the STRUCTURES located on the VARRA PREMISES pursuant to
the rights granted by this AGREEMENT. Nothing herein shall be construed as a waiver of
the COUNTY'S immunity under the Colorado Constitution and/or the Governmental
Immunity Act.
15. The term of this AGREEMENT shall be perpetual unless both parties agree, in writing, to
terminate this AGREEMENT.
16. Notice. When notice, conferral and/or subsequent agreement is required by this Agreement,
including but not limited to notices, conferrals and/or subsequent agreements required in
paragraphs 5, 6, 9, 10, 11, 15 and 21, the parties shall provide notice, confer or initiate
contact to discuss subsequent agreements with the following persons:
a. For COUNTY:
Weld County Engineer
Attn: David Bauer
Weld County Public Works
P.O. Box 758
Greeley CO 80632
Telephone No. 970-304-6496
Emergency Telephone No. 970-356-4015
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b. For VARRA:
Attn: Garrett Varra
8120 Gage Street
Frederick, CO 80516
303-666-6657
Either party may, by written notice to the other party, change its notice person(s) or
designated representative(s) or the address to which written notices or communications
are to be sent.
17. Severability: If any provision of this Agreement shall be held invalid or unenforceable, the
remainder of this Agreement and the application of such provision to persons or situations
other than those to which it shall have been held invalid or unenforceable, shall not be
affected thereby, but shall continue to be valid and enforceable to the fullest extent permitted
by law and the parties agree that this agreement shall be reformed to replace such stricken
provision or part thereof with a valid and enforceable provision that comes as close as
possible to expressing the intention of the stricken provision.
18. Counterparts: This Agreement may be executed in counterparts, each of which shall
constitute an original and together which shall constitute one and the same document.
Facsimile signatures shall be accepted as originals.
19. Choice of Laws/Entire Agreement: This Agreement shall be governed by the laws of the
State of Colorado. This Agreement has been designed in part to encompass the requirements
of the Board of County Commissioners. Any amendment to this Agreement shall only be
valid if set forth in writing and signed by both VARRA and COUNTY.
20. This AGREEMENT constitutes the entire agreement between the parties hereto relating to
the subject hereof, and no modification of the same shall be valid, binding, recognized or
enforceable unless made in writing and signed by both parties.
21. No Assignment. Except as provided in this paragraph, this agreement may not be delegated
or assigned in whole or in part by either party hereto without the express written consent of
the other party and the written agreement of the party to whom the obligations under this
agreement are assigned. Consent to a delegation or an assignment will not be unreasonably
withheld. Varra may assign this agreement in whole or in part to another entity that a
member of the Varra family has a controlling interest in, or to individual members of the
Varra family without prior written consent of the other parties. Varra shall provide notice
pursuant to paragraph 16 that such assignment to a Varra family member or Varra entity has
been made.
22. Subject to paragraph 21, this AGREEMENT shall be binding upon the parties hereto, and
their respective heirs, executors, administrators, assigns, and successors and upon recording
by the County, shall be deemed a covenant running with the land herein described.
7
IN WITNESS WHEREOF, COUNTY and VARRA have, caused this AGREEMENT to be
executed in duplicate on the date and year written below.
WELD COUNTY: BOARD OF COMMISSIONERS VARRA COMPANIES, INC.:
MAY 3 0201?
Sean P. Conway, Chair (Date)
ATTEST:
By:
Deputy
SAND LAND PROPERTIES, LLC:
/
ATTEST:
)Z;y2.0
le -.-201.2
(Dale)
TTEST: (Seal)
A 01:7-5717A__.
jt
SAND LAND, INC.:
`cr ;24
(Dale)
(Seal)
8
ATTEST:
(Date)
(Seal)
learrAtirafrIelf
7
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