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HomeMy WebLinkAbout04.04 Binder 3 - Appendix P• • Easement Grant Page 1 WHEN RECORDED, RETURN TO: Louis LaGiglia 4002 County Road 115 Glenwood Springs, CO 81601 EASEMENT GRANT This EASEMENT GRANT is made between SPRING VALLEY HOLDINGS, LLC, a Delaware Limited Liability Company as Grantor (hereinafter Spring Valley), and LOUIS LAGIGILIA as Grantee (hereinafter LaGigilia). RECITALS: A. LaGigilia owns an undivided 25% interest in the BR Hopkins Spring as decreed on March 20, 1975 in Case No. W-2395, Water Division No. 5, with an appropriation date of May 15, 1930 (the Hopkins Spring). B. The Hopkins Spring is located on property owned by Spring Valley. C. LaGigilia owns the property described in that certain deed recorded in Book 783 at Page 680, Reception No. 414649, Garfield County, Colorado (the LaGiglia Property), which property was at one time served with water from the Hopkins Spring via a pipeline. The original pipeline has been inoperable for several years, and is no longer in existence. The original pipeline alignment traverses property owned by third parties. Reconstructing the pipeline along its original alignment would require disrupting improvements made by third parties on property owned by them. D. Spring Valley desires to develop its property as the Spring Valley Ranch P.U.D. As a condition of approval for the development of its property, the Board of County Commissioners, in Resolution No. 2005-84, recorded in the office of the Clerk and Recorder of Garfield County in Book 1743 at Page 894, Reception No. 686067, set forth the following condition of approval: Subject to the terms hereof, the Applicant shall provide a nonexclusive easement to allow for the conveyance of water piped from the BR Hopkins Spring located on Spring Valley Ranch PUD property to a point where the water from the BR Hopkins Spring is used on the LaGigilia property. The easement is not required to follow the historic pipeline corridor and it can be relocated to a preferred location mutually agreed to by the parties who have a right to the BR Hopkins Spring and any property owner whose property the new pipeline may cross. This easement to the BR Hopkins Easement Grant Page 2 Spring shall be designed to allow access to the spring of an adequate width in order to perform improvements to and maintenance on the spring and any portion of a pipe conveying water. This easement shall be depicted on the final plat for review. Further, the Applicant shall be required to present the terms of the easement to the Planning Department for review at final plat and then subsequently recorded in the Office of the County Clerk and Recorder and cross referenced by reception #, book and page on the final plat. E. In satisfaction of said condition of approval, Spring Valley desires to grant to LaGigilia a non-exclusive easement to allow for the conveyance of water piped from the BR Hopkins Spring located on Spring Valley Ranch PUD property to a point where the water from the BR Hopkins Spring is used on the LaGigilia property. NOW, THEREFORE, in consideration of the performance of the agreements and conditions herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the following grants, agreements, covenants and restrictions are made: 1. Grant of Easement. Spring Valley, subject to the reservations, terms, obligations and conditions herein, grants to LaGigilia, as an easement appurtenant to the LaGiglia Property, a non-exclusive easement (the Easement) for ingress and egress and for the construction, operation, maintenance, repair and replacement of an underground water line from the Hopkins Spring to the LaGigilia Property, located over, under and across the corridor situate in Section 28, Township 6 South, Range 88 West of the 6th Principal Meridian being more particularly described as follows: A non-exclusive private waterline easement being 10 feet on each side of the following described centerline: 1. Beginning at a point whence the West Quarter Corner of Section 28, Township 6 south, Range 88 west, of the 6th Principal Meridian bears S 06°04'33" W a distance of 1077.87 feet; thence N 16°21'08" W a distance of 268.67 feet to a point on the southerly right-of-way of Garfield County Road 115 whence the NW Corner of Section 28, Township 6 south, Range 88 west of the 6th Principal Meridian bears N 00°37'46" E a distance of 1254.20 feet. 2. Beginning at a point on the southerly right-of-way of Garfield County Road 115 whence the NE Corner of Section 29, Township 6 south, Range 88 west of the 6th Principal Meridian bears N 30°54'51" E a distance of 1096.84 feet; thence S 82°52'22" W a distance of 320.09 feet; thence S 66°13'38" W a distance of 866.35 feet; thence N 68°02'37" W a distance of 489.20 feet; thence N 01°30'59" W a distance of 451.94 feet to a point whence the North Quarter Corner of said Section 29 bears N 31°43'11" W a distance of 895.75 feet. • • • • • • Easement Grant Page 3 (hereafter Easement Premises). 2. Limitations on Rights Granted. This grant of Easement is without covenant of title and is subject and subordinate to a reservation of the prior and continuing right of Spring Valley to all other uses of the Easement Premises, all of which may be done at any time by Spring Valley without liability to LaGigilia or to any other party for compensation or damages, so long as Spring Valley does not unreasonably interfere with LaGigilia' exercise of the Easement. This Easement Grant is subject and subordinate to all existing leases, licenses, permits, claims of title, encumbrances or other interests and as may in the future be renewed or extended by Spring Valley. 3. Use of Easement Premises. Use of the Easement Premises is limited to the conveyance of LaGigilia's 25% interest in the BR Hopkins Spring as decreed on March 20, 1975 in Case No. W-2395, Water Division No. 5, with an appropriation date of May 15, 1930. Such use shall not be expanded except by written permission of Spring Valley. 4. LaGigilia's Improvements. LaGigilia shall be responsible for the construction, operation, repair and maintenance of the improvements made on the Easement Premises for LaGigilia' use thereof, and shall furnish material for, and construct, repair and maintain such improvements, and shall keep the Easement Premises and such improvements in a good state of repair at the sole cost and expense of LaGigilia. LaGigilia shall have a temporary construction license over adjacent portions of the Easement Premises as reasonably necessary for construction of such improvements. LaGigilia shall provide general supervision of all construction and repair activities. LaGigilia shall not enter upon the Easement Premises for the purpose of constructing, reconstructing repairing, or replacing any improvements to the Easement Premises, except in cases of emergency when work is necessary to avert personal injury or damage to property, without first providing proof of insurance as required herein. Before commencing any work on the Easement Premises, LaGigilia or its contractor shall notify Spring Valley, in writing at least ten (10) days in advance, of the description of proposed work and the date on which LaGigilia or its contractor expects to begin such work. Upon completion of all work, the Easement Premises and all other disturbed ground shall be revegetated and restored to a condition reasonably similar to the condition that existed prior to such work. 5. Maintenance and Repairs. LaGigilia shall maintain and keep in a safe condition, make necessary or proper repairs, or reconstruct as necessary the improvements constructed by LaGigilia on the Easement Premises. Upon LaGigilia' failure to perform such maintenance or commence any such repair or reconstruction, Spring Valley shall have the right, if it so elects, to make such maintenance or repairs within fifteen (15) days after notice to LaGigilia, or in an emergency without notice. In the event Spring Valley elects to maintain, repair or reconstruct such improvements on the Easement Premises, LaGigilia shall reimburse Spring Valley for its costs for such maintenance, repair or reconstruction as Spring Valley reasonably deems necessary, within Easement Grant Page 4 thirty (30) days of being billed for such work. The right of Spring Valley to maintain, make repairs or reconstruct the improvements on the Easement Premises shall not relieve LaGigilia from responsibility to Spring Valley or to other persons for the failure of LaGigilia to properly maintain, repair or reconstruct such improvements. 6. Liens. LaGigilia shall pay in full all persons who perform labor on the Easement Premises for LaGigilia and will not allow any mechanics' or materialmen's liens to be enforced against Spring Valley's premises for work done or materials furnished at LaGigilia's instance or request. If any such liens are filed thereon, LaGigilia agrees to remove the same at LaGigilia's own cost and expense and to pay any judgment which may be entered thereon or thereunder. Should LaGigilia fail, neglect or refuse so to do, Spring Valley may pay any amount required to release any such lien or liens, or to defend any action brought thereon, and to pay any judgment entered therein, and LaGigilia shall be liable to Spring Valley for the payment of any such liens or judgment and all costs, damages, and reasonable attorneys' fees, and any other amounts expended in defending any such proceedings. 7. Protection of Drainage. Any and all cuts and fills, excavations or embankments necessary in the maintenance or future alteration for LaGigilia's use of the Easement Premises shall be made and maintained in such manner, form and extent as will provide adequate drainage of the Easement Premises and adjoining lands; and wherever any such fill or embankment may obstruct the natural and pre-existing drainage from such lands, LaGigilia shall construct and maintain sufficient culverts or drains as may be required to accommodate such natural and pre-existing drainage. 8. Protection of Existing Facilities. LaGigilia shall bear the cost of protection, relocation or reconstruction of any and all fences, telephone or telegraph poles, underground communication cables, utilities or other facilities, made necessary by the construction, use, operation, maintenance or repair of LaGigilia's improvements to the Easement Premises. 9. Environmental Protection. LaGigilia shall, at its expense, comply with all applicable laws, regulations, rules and orders regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and furnish satisfactory evidence of such compliance upon request of Spring Valley regarding the construction of improvements on the Easement Premises. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or arise from the Easement Premises as a result of LaGigilia's use, presence, operations or exercise of the rights granted hereunder, LaGigilia shall immediately notify Spring Valley and shall, at LaGigilia's expense, clean all property affected thereby, to the reasonable satisfaction of Spring Valley (insofar as the property owned or controlled by Spring Valley is concerned) and any governmental body having jurisdiction in the matter. Spring Valley may, at its option, clean Spring Valley's property of such discharge referred to above; and if Spring Valley elects to do so, LaGigilia shall pay Spring Valley the reasonable cost of such cleanup promptly upon the receipt of a bill therefor. LaGigilia agrees to • • • • Easement Grant Page 5 release, indemnify and defend Spring Valley from and against all liability, cost and expense (including, without limitation, any fines, penalties, judgments, litigation costs and attorneys' fees) incurred by Spring Valley as a result of any such discharge, leakage, spillage, emission or pollution by LaGigilia, unless such liability, cost or expense is proximately caused by the negligence, recklessness or willful act of Spring Valley, its officers, agents, employees or contractors. 10. Insurance Requirements. Prior to commencing any work on the Easement Premises, LaGigilia shall require any contractor retained by LaGigilia to perform any work on the Easement Premises to procure and maintain, at the contractor's expense, Comprehensive General Liability Insurance (including automobile) of a reasonable amount, to be maintained during the period of any construction activities to insure Spring Valley. Such insurance policy shall contain no provisions excluding assumed contractual liability or indemnity; and said policy shall specifically reference this Easement Grant and its indemnity provisions, shall name Spring Valley as an additional insured, shall contain no exclusion of any personal injury or death or damage to property sustained by any directors, officers, agents, attorneys or employees of Spring Valley (except for their own negligence, recklessness or willful acts). LaGigilia shall furnish Spring Valley with certificates of insurance and a copy of the policy evidencing such insurance to be in full force and effect and containing a provision that same will not be canceled without at least thirty (30) days' advance written notice by the insurance carrier to Spring Valley. 11. Indemnity. LaGigilia shall at all times protect, indemnify and save harmless Spring Valley from any and all claims, demands, judgments, costs, expenses, and all damage of every kind and nature made, rendered or incurred by or on behalf of any person or corporation, including attorneys' fees and court costs in any manner due to or arising out of any injury to or death of any person, or damage to property of any person or persons, including the parties hereto and their officers, agents, attorneys and employees, in any manner arising from or growing out of the use of or the failure to properly construct, operate or maintain improvements constructed by LaGigilia on the Easement Premises. Nothing contained herein shall constitute an indemnity by LaGigilia of Spring Valley for any negligence, recklessness or willful acts of Spring Valley, its contractors, agents or employees. 12. Default. If LaGigilia or Spring Valley shall fail to keep and perform any of the conditions, stipulations, covenants and provisions of this Easement Grant to be kept and performed by them, the non -defaulting party shall be entitled to such damage or remedy as may be available at law or in equity, including an action to require specific performance, and shall also be awarded its reasonable costs, attorneys' fees and expenses. Any waiver or failure by a party to timely enforce its rights for any breach of any condition shall not impair the rights of such party arising from such breach to enforce such rights at a later time or to avail itself of its rights under any subsequent breach of the same or any other condition. Without limiting Spring Valley's right to seek a formal judicial declaration of abandonment, in no event shall Spring Valley be entitled to terminate or limit use of Easement Grant Page 6 the Easement as a remedy for LaGigilia's default of any condition, stipulation, covenant or provision of this Easement Grant. 13. Notices. Any notice required or permitted to be given hereunder must be in writing and will be deemed given upon personal delivery or upon the deposit thereof in the United States mail, by registered or certified mail, postage prepaid, addressed to the appropriate party at the following addresses: If to Spring Valley: If to LaGigilia: Any party may change such party's address for notices by giving notice to the other parties in accordance with this paragraph, but no change will be effective as against any person without actual knowledge thereof. 14. Binding on Successors; Assignment. The covenants, stipulations and conditions of this Easement Grant shall extend to and be binding upon the parties hereto, their successors and assigns; provided, however, that LaGigilia's obligations under this Easement Grant may only be enforced against LaGigilia or its express assigns. IN WITNESS WHEREOF, Spring Valley and LaGigilia have executed this Easement Grant as of the last date set forth below. [Signatures on Following Page] • • • • • Easement Grant Page 7 GRANTOR: SPRING VALLEY HOLDINGS, LLC, a Delaware Limited Liability Company By: GRANTEE: Louis LaGigilia [Acknowledgments on Following Page] Easement Grant Page 8 STATE OF COUNTY OF ) ) ) ss. The foregoing Easement Grant was subscribed, sworn to and acknowledged before me by as of SPRING VALLEY HOLDINGS, LLC, a Delaware Limited Liability Company, this day of , 2007. Witness my hand and official seal. [SEAL] My commission expires: STATE OF COUNTY OF ) ) ) Notary Public ss. The foregoing Easement Grant was subscribed, sworn to and acknowledged before me by Louis LaGigilia, this day of , 2007. Witness my hand and official seal. [SEAL] Notary Public My commission expires: •