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HomeMy WebLinkAbout3.0 Agreementcordod at ' •,' / 1 o'clock r NI JUL U 6 Rsception No 3r1.). MILDRED ALSDORF, RECORDER. G F,F►ELD COUr:TY, COLORADO AGREEMENT 71_5 p! E S91 THIS AGREEMENT is entered into as of the last date below written, by and between the MITCHELL -COOPER DITCH AND PIPELINE COMPANY, a Colorado Non -Profit Corporation, whose address is (hereinafter referred to as "Mitchell -Cooper") and BERT AND SHIRLEY ZANCANELLA, whose address is (hereinafter referred to as "Zancanellas"); WITNESSETH: WHEREAS, by deed dated July 30, 1954, and recorded in the records of Garfield County in Book 283 at Page 545 as Reception No. 189426, C. B. Bell, Theodore Martin, Bert Zancanella, and Shirley Zancanella, predecessors in interest to Zancanellas, conveyed to Mitchell -Cooper an easement and right-of-way, inter alia, to carry 0.8 c.f.s. under Priority 14 adjudicated to the Mitchell and Cooper Ditch from Oasis Creek to a storage tank to he located on the lands of Theodore Martin (now owned by Zancanellas); and WHEREAS, by Agreement dated October 12, 1954, between Mitchell -Cooper and the same predecessors in interest to Zancanellas referred to above, recorded in Book 283 at Page 546 as Reception No. 189427, the parties agreed, inter alia, that Mitchell -Cooper would construct a 14 -inch line along the Gilmore Ditch to carry water of the parties to the above -referenced tank, from whence overflow from said tank was to be discharced into the Gilmore Ditch; and WHEREAS, by deed dated October 12, 1954, and recorded in Book 283 at Page 538 as Reception No. 189422, Theodore Martin conveyed to Mitchell -Cooper easements and rights-of-way, inter alia, to construct, operate and maintain a water storage tank and a pipeline to carry water to said tank; and WHEREAS, by Agreement dated April 5, 1955, by and between Mitchell -Cooper and Theodore Martin, recorded in Book 283 at Page 549 as Reception No. 189428, the parties agreed, inter alia, in Paragraph 4 thereof, that Theodore Martin would have the right to a 1 -inch free-flowing tap in the Mitchell -Cooper pipeline, at a point below the outlet of said reservoir, and thence into a cistern for use by Martin and that Martin would be assessed for such use as if he owned ten shares of stock in Mitchell -Cooper; and WHEREAS, by Assignment and Agreement dated April 4, 1961, recorded in Book 333 at Page 245 as Reception No. 213298, Theodore Martin conveyed to various parties his right to said 1 -inch tap and limited the total use thereunder to four single- family residences; and . slo 715 r.c:892 WHEREAS, by deed dated June 2, 1965, recorded in Book 366 at Page 367 as Reception No. 230100, Bert and Shirley Zancanella acquired the rights of August J. Blanc and Dorothy M. Blanc under the above -referenced Assignment and Agreement from Theodore Martin, namely, the right to a 3/4 -inch line from said cistern for two single-family residences and subject to the obligation to pay assessments to Mitchell -Cooper for such use as if they owned five shares of stock in Mitchell -Cooper; and WHEREAS, by Agreement dated July 12, 1984, recorded in Book 652 at Page 823, Mitchell -Cooper and Zancanellas agreed, inter alia, that a new pipeline to be constructed by Mitchell -Cooper is within the scope of existing easements owned by it, and that Zancanellas would have the right to serve an additional single- family residence in addition to the two single-family residences allowed under the Agreement recorded in Book 283 at Page 549; and WHEREAS, on May 18, 1984, Zancanellas obtained a decree for a water right in Case No. 83CW385 in the District Court in and for Water Division No. 5, for 90 g.p.m. at a spring located within the Oasis Creek drainage, more particularly described in said decree; and WHEREAS, in Case No. 85CW617 in the District Court in and for Water Division No. 5, Mitchell -Cooper has filed an applica- tion to change its water right in the Mitchell and Cooper Ditch, Priority No. 14, to an alternate point of diversion at said spring, and thereby incorporate said spring as a source of supply for its system; and WHEREAS, the parties desire to share in the development of said spring and in the use of the waters arising therefrom; and WHEREAS, as a result, the parties desire to rescind certain agreements, modify certain agreements, and to make new agreements between themselves concerning easements for the Mitchell -Cooper water system and the use of water therefrom by Zancanellas. NOW, THEREFORE, for and in consideration of the mutual pro- mises and premises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Zancanellas shall withdraw their Statement of Opposition in Case No. 850W617 within thirty (30) days from the date hereof. 2. Mitchell -Cooper has completed the construction of a new pipeline to ,the existing storage tank owned and operated by Mitchell -Cooper, a chlorination and storage building immediately adjacent to said storage tank, and intends to complete certain grading and drainage improvements as herein provided. Upon • • i5 PV:ES93 completion of the grading, fencing, and drainage improvements as provided in Paragraph 7, Zancanellas shall convey to Mitchell - Cooper easements around the storage tank and twenty (20) feet in width to said tank, as shown on the sketch attached hereto as Exhibit "A". Said easements shall be for construction, opera- tion, maintenance, repair, installation, replacement, enlarge- ment, improvement, and removal of two waterlines, a water storage tank and electric lines, together with the right of ingress and egress for such purposes, together with the right to utilize an additional fifteen (15) feet outside of said easement for temporary access and construction purposes, only for such purposes for, by way of example, the movement and piling of dirt, the movement, access and temporary storage of construction equipment, and other activities necessary for such purposes, provided that any area disturbed shall be placed as nearly and quickly as practicable into the same condition as existed prior to such disturbance, together with the right to construct a fence around said storage tank and chlorination and storage building suitable to prevent unauthorized access thereto; pro- vided, however, said activities shall be limited as provided in Paragraph 7. 3. Conveyance of said easements shall be made within thirty (30) days from the receipt from Mitchell -Cooper of legal descriptions therefor, based upon as -built surveys provided by Mitchell -Cooper at its sole expense. Title to said easements shall be free and clear of all liens, charges and encumbrances, charges, and defects whatsoever, except those of record. 4. Upon the recording of an easement deed as herein pro- vided from Zancanellas to Mitchell -Cooper, said easements shall replace and supersede the easements across Zancanellas' property set forth in those deeds recorded in Book 283 at Page 545 as Reception No. 189426, and in Book 283 at Page 538 as Reception No. 189422, and said prior deeds shall be of no further force or effect. Mitchell -Cooper shall convey by quit -claim deed to Zancanellas said easements as said easements affect Zancanellas, which deed shall be recorded simultaneously with but prior to the easement deed from Zancanellas to Mitchell -Cooper. 5. The parties affirm and ratify the agreements recorded in Book 283 at Page 542 as Reception No. 189425 and in Book 283 at Page 546 as Reception No. 189427. The parties affirm and ratify the agreements contained in Paragraphs 1 through 4, inclusive, and Paragraph 7 of that Agreement recorded in Book 652 at Page 828. Paragraphs 5 and 6 of said Agreement are hereby declared null and void and of no further force or effect, it being the intent of the parties to supersede said agreements with other agreements as set forth herein. 6. Zancanellas may, at their option, take and use water through the Mitchell -Cooper system for domestic use, as follows: • 715 P�f:ESB4 A. At any time within five (5) years from the date of recordation of the easement deed referenced in Paragraph 2 hereof, Zancanellas may construct a spring box at the spring referenced in Case Nos. 85CW617 and 83CW385, in the District Court in and for Water Division No. 5, and may connect said spring as an addi- tional source of supply to the Mitchell -Cooper system. Said construction and connection, at Zancanellas' sole cost, shall be made to'acceptable engineering standards and shall comply with all applicable health regulations and with the approval of Mitchell -Cooper, which appro- val shall not be unreasonably withheld. Additionally, Mitchell -Cooper shall approve, which approval shall not be unreasonably withheld, the water quality of said spring as acceptable and compatable with the existing system. Zancanellas shall at their expense install adequate totalizing measuring devices to measure the flow of water from said spring into the Mitchell -Cooper system, and the amount of water at the point of Zancanellas' use from the Mitchell -Cooper system. Upon the completion of said improvements, Zancanellas shall have the right to take without charge up to one-half the flow of said spring from the Mitchell -Cooper system for domestic purposes above the point of treatment by Mitchell -Cooper. In the alternative, Zancanellas may, at any time, connect and utilize water for domestic purposes for up to a maximum of twenty (20) EQR at a point immediately below the point of treatment by Mitchell -Cooper. If Zancanellas' water use occurs after the point of treatment, they shall pay all assessments or charges regularly or specially made by Mitchell -Cooper, as if they were the owners of five shares of stock for each equivalent residential unit ("EQR") for which water use is made by them, and any said assessments shall become due and payable on the same basis as if they were shareholders in Mitchell - Cooper; provided, however, Zancanellas shall not be required to pay a tap fee or other similar fee for said initial connections. All such water use below the point of treatment shall be subject to the rules, regu- lations, and by-laws of Mitchell -Cooper. In the event Zancanellas connect to the Mitchell -Cooper system at a point below the point of treatment, Zancanellas shall be excused from the requirement to install measuring devices at the spring box location and location of con- nection to the Mitchell -Cooper system. The term "EQR" as used herein shall mean the water use equivalent of one single-family residence (18,000 gallons per EQR per month during the irrigation season and 10,850 gallons per EQR per month during the non -irrigation season). Any use by Zancanellas before treatment shall be sub- ject to approval by the Colorado Department of Health and/or any other applicable authority. Zancanellas shall be solely responsible to obtain any approvals by 57 -1 P ES9J • • the City of Glenwood Springs for any water use by Zancanellas hereunder by virtue of that Agreement bet- ween the City and Mitchell -Cooper recorded in Book 674 at Page 813 as Reception No. 364636. The actual out- of-pocket costs, excluding attorney fees, of any ease- ment acquisition by the parties for the construction of said spring box and the incorporation thereof into the Mitchell -Cooper system shall be borne equally by the parties. Diversions at the spring shall be made under the alternate point of diversion for Mitchell -Cooper's Priority No. 14 water right as decreed in Case No. 85CW617. In the event of connection by Zancanellas either above or below the point of treatment upon completion of construction by Zancanellas, Mitchell - Cooper shall own the spring box, pipeline, and all appurtenant facilities and easements, and Zancanellas shall make such conveyances as are necessary to effec- tuate this purpose; provided, however, Zancanellas shall be responsible for operation, maintenance, and replacement obligations and costs for all facilities, pipelines, etc., including the meters referred to above, from the point of connection to the ultimate place of use. B. If Zancanellas do not complete the improvements referenced in subparagraph 5.A. within said five-year period, they may continue to utilize water from the existing cistern, which shall not be enlarged beyond its current approximate size of 6' x 4' x 4'. Such use shall be limited to three EQR. Subject to the terms of Paragraph C, below, Zancanellas shall pay all assess- ments or charges regularly or specially made by Mitchell -Cooper, as if they were the owners of five shares of stock for each EQR for which use is made, said assessments and charges to be due and payable on the same basis as if they were shareholders in Mitchell -Cooper. C. Mitchell -Cooper agrees that Zancanellas may continue to utilize water for their primary residence from the Mitchell -Cooper system free of charge for either or both of their respective lives for their existing uses. Upon the death of the surviving spouse, said free water use shall terminate. D. Zancanellas shall continue to have the right to water use as herein provided so long as Mitchell -Cooper con- tinues to operate its water system from Oasis Creek. In the event Mitchell -Cooper no longer desires to operate its wholesale water facilities and invokes the provisions of Paragraph 4 of its Agreement with the City of Glenwood Springs recorded in Book 674 at Page 813 as Reception No. 364636, it shall no longer be responsible to provide for water service to • 0' ';'15 r..r,E596 Zancanellas. Zancanellas may at any time and at their sole expense attempt to obtain the consent of the City of Glenwood Springs that this Agreement will in such event be treated as set forth in Paragraph 11.A. on page 9 of said Agreement between Mitchell -Cooper and the City. E. Water use by Zancanellas under the terms of this Agreement may be made only on property owned by them at the time of this Agreement and may not be used upon or transferred to any other property. F. At times when interconnection of Mitchell -Cooper's distribution system with City of Glenwood Springs occurs, for whatever reason, which interconnection requires Mitchell -Cooper to shut down the main pipeline below the point of treatment and below the connection points permitted for Zancanellas in Paragraph 6.A. above, Zancanellas shall be permitted to continue to utilize water free of charge at their sole expense. Zancanellas also agree that Mitchell -Cooper shall be entitled to curtail water service to Zancanellas for reasonable maintenance and replacement upon reasonable notice, except in cases of emergency. Zancanellas hereby relinquish, release, and abandon any and all rights and interests they may have in and to the 1 -inch free- flowing tap described in the recitals hereto, and as set forth in Paragraph 4 of the document recorded in Book 283 at Page 549 as Reception No. 189428, the Assignment and Agreement recorded in Book 333 at Page 245 as Reception No. 213298, and the deed recorded in Book 366 at Page 367 as Reception No. 230100, it being the intent of the parties to supersede and replace said rights and obligations by the agreements herein. 7. Mitchell -Cooper shall cause to be constructed, at its sole expense, a green vinyl chain link fence within the easement described in Paragraph 2, above, around the perimeter of the treated water storage tank and treatment facilities; said fence shall be constructed wholly within the facility easement and not the access or temporary construction easement. Said fence shall not exceed six feet in height from grade. Should any governmen- tal regulation or insurance policy mandate any difference fence specifications, Mitchell -Cooper shall be permitted to construct such fence design. Mitchell -Cooper shall fully and densely landscape said fence with trellising vines and vegetation to the maximum extent possible. Mitchell -Cooper shall further control weeds and other vegetation growth within the perimeter of said fence by the installation of a concrete pad or. otherwise. In the event :Mitchell -Cooper desires to or is required to improve, modify or replace the existing storage tank and treat- ment facilities located within the easement described herein, such improvements or replaced facilities may not exceed five • • feet in height as measured from the average natural easement grade involved; nothing herein shall be construed as prohibiting Mitchell -Cooper from excavating or lowering the bottom of the existing tank to increase tank capacity within the foregoing height restriction. Mitchell -Cooper shall provide Zancanellas with reasonable notice in advance of all visitations to or acti- vities which require access to Mitchell -Cooper's facilities located on the property of the Zancanellas; for purposes of this provision, the parties recognize that in times of emergencies, reasonable notice may not be required, it being the intent for the parties to mutually cooperate on permitting reasonable access without undue burden on Zancanellas. 8. This Agreement and all of its parts shall be binding upon the parties, their heirs, successors and assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the dates written below. MITCHELL -COOPER DITCH & PIPELINE COMPANY A Colorado Non -Profit Corporation DATE: ff 7 By °"\1�?AA,w•tii President • ATTEST: P..;,;. ,Secretary si t' ` y' DATE: DATE: BERT ZANC , frLA SHIRLEY ZANC N ELLA // STATE OF COLORADO ) County of �� t (irtCkJ ) ss. 715 P;!ES9S The foregoing rinstrument was acknowledged before me this f t� �G� day of _) L• l iii 19 $6 ,7by SJR c + 1) (( O )a Cl(1 as President, and ! - 'a , on behalf of Mitchell -Cooper Ditch and Pipeline Company. WITNESS my hand and official�seal. My Commission expires: 3/(%/ 1 L 1I /, • Notary Public STATE OF COLORADO ) '• ° 6) ss. County of,/0., ) • The foregoing instrument was acknowledged before me this day of , 198k, by BERT ZANCANELLA and SHIRLEY ZANCANELLA. J WITNESS my hand and official seal. 4 My Commission expires: 1/9 Notary Public J sl thllIDl I H • • 710 P:.r,Eb`,-.33 4-0'1- NEW 15" CMF MAINTAIN EX. FIFE AS TANK OVERFLOW ,5. r ( EX. FENCE EX. WATER 5 T OAGF_ TANK EX. ACCESS HATCH - EX. G" STEEL TANK. 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