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HomeMy WebLinkAbout6.03 Sabo Ditch Modification Agreement (003)1 KAISER & SIEVERS DITCH MODIFICATION AGREEMENT THIS KAISER & SIEVERS DITCH MODIFICATION AGREEMENT (this “Agreement”) is made by and among Aspen Glen Golf Club Management Company, a Colorado corporation, The Homeowners Association at Aspen Glen, a Colorado nonprofit corporation, Roaring Fork Water & Sanitation District, a Colorado Special District, and Aspen Glen Golf Company, a Colorado limited partnership (collectively the “Ditch Owners”) and Jeffrey and Laurel Sabo, a married couple (“Lot Owner”). This Agreement will become effective upon signing by all parties. WHEREAS, Lot Owner is the owner of that certain real property in Garfield County, Colorado legally described as Lot A, Buelah Wilson Subdivision Exemption, Garfield County, Colorado, and having an address of 5889 County Road 109, Carbondale, Colorado 81623 (the “Property”); WHEREAS, the Ditch Owners are the owners of the Kaiser & Seivers Ditch (the “Ditch”), a portion of which is located on the Property; WHEREAS, Lot Owner has previously made certain modifications to the portion of the Ditch located on the Property, and has requested that the Ditch Owners approve certain additional modifications on the Property as described and depicted on Exhibit A attached hereto (the “Modifications”), including a boulder retaining wall and parking area, for the purpose of operating a small contractor’s yard on a portion of the Property. NOW, THEREFORE, for and in consideration of mutual promises and covenants herein contained, the Ditch Owners and Lot Owner agree as follows: 1. Approval. Ditch Owners hereby approve the Modifications and the use of portions of the Property for a small contractor’s yard as proposed by Lot Owner, subject to the following terms and conditions: (i) all Modifications must be performed in a good and workmanlike manner; (ii) the boulder retaining wall shall be construction in accordance with the plans prepared by Kurtz & Associates, Inc. dated January 19, 2016 and attached hereto as Exhibit B and the additional specifications listed in Exhibit C; (iii) all expenses for engineering services, reconstruction costs and ongoing maintenance of all reconstructed or affected sections of the Ditch located on the Property shall be the responsibility of Lot Owner or its successor(s); and (iv) no other modifications shall be made without the prior written approval of Ditch Owners. 2. Use and Maintenance. Lot Owner, at its sole cost, shall keep all reconstructed or otherwise affected sections of the Ditch located on the Property in good condition and repair and in compliance with all applicable governmental laws, statutes, ordinances, resolutions, rules and regulations. Lot Owner shall ensure that the Modifications and Lot Owner’s use of the Property do not interfere in any manner with the operation, function, use or maintenance of the Ditch, and shall allow Ditch Owners to access all portions of the Ditch located on the Property at all times. 3. Construction. Lot Owner, at its sole cost and expenses, shall ensure that all work performed in connection with this Agreement shall be conducted so as to (i) be in compliance with all applicable governmental laws, statutes, ordinances, resolutions, rules and regulations and all 2 matters of record affecting the Ditch and Property; (ii) be accomplished in an expeditious and diligent manner once the same is initiated and avoid excessive dust and noise caused by such work; (iii) prevent any interruption with the operation, maintenance and use of the Ditch; and (iv) coordinate the dates of any work impacting the Ditch in advance with Ditch Owners. 4. Restoration. Lot Owner shall immediately repair any damage to the portion of the Ditch located on the Property that is caused in any manner by the Modifications or Lot Owner’s use of the Property; if Lot Owner fails to do so, Ditch Owners may make such repairs and Lot Owner shall be liable for the full cost of such work performed, such amount to be paid by Lot Owner within ten (10) days after invoicing by Ditch Owners. 5. Insurance. During the term of this Agreement, Lot Owner shall procure, and shall maintain, at Lot Owner’s sole cost and expense, (i) property insurance covering all reconstructed or affected sections of the Ditch located on the Property; (ii) general liability insurance covering Lot Owner and the Ditch Owners against claims for personal and bodily injury, death or property damage occurring upon, in or about the Property, in an amount not less than Two Million Dollars ($2,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate for bodily injury and property damage; (iii) Worker’s Compensation and Employer’s Liability Insurance as required by law covering any of Lot Owner’s employees; and (iv) Automobile Liability Insurance covering liability arising from the use or operation of any vehicle owned, hired or otherwise operated or used by or on behalf of Lot Owner, with minimum policy limits of Five Million Dollars ($5,000,000.00) combined bodily injury and property damage liability per accident for bodily injury and property damage. All of the insurance policies and renewals thereof as are required herein shall be written by companies acceptable to Ditch Owners, licensed to do business in the State of Colorado, and having a current A.M. Best’s rating of not less than A-VII. All of the insurance policies and renewals thereof as are required herein shall (a) be written as primary policies not contributory with and not in excess of coverage which Ditch Owners may carry, (b) provide that the insurance company issuing same shall have waived any right of subrogation against Ditch Owners, and (c) provide that no material change or cancellation of said policies shall be made without thirty (30) days’ prior written notice to Ditch Owners. All of the insurance policies and renewals thereof as are required herein except for Worker’s Compensation and Employer’s Liability Insurance shall name Ditch Owners as additional insureds. Lot Owner agrees to furnish to Ditch Owners, upon execution of this Agreement, and thereafter upon request from time to time, certificates of insurance reflecting that such insurance in the minimum requirements hereof is being properly carried. 6. Indemnification. Lot Owner agrees to indemnify, defend and hold harmless the Ditch Owners from and against any and all expenses, suits, actions, judgments or claims brought or made on account of any injuries or damages received or sustained by any person or persons or property, in any manner arising out of, occasioned by or in connection with the use of the Property including, but not limited to, the reconstructed or otherwise affected portions of the Ditch on the Property. 7. Environmental. Lot Owner shall not, and shall not permit any person to, transport, locate, generate, manufacture, install, or use on or about the portions of the Ditch on the Property any Hazardous Substances (hereinafter defined), except in accordance with applicable Environmental Laws (hereinafter defined). Further, Lot Owner shall not cause or permit any Hazardous Substances to be disposed of on or about the Property that could contaminate or release 3 or discharge into the environment, the soil, the atmosphere, any water course or any ground water. For purposes of this Agreement, “Hazardous Substances” shall mean and include, but shall not be limited to, any element, constituent, chemical, substance, compound or mixture that is defined in, included under or regulated by any local, state or federal law, rule, ordinance or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Clean Water Act, the Clean Air Act, the Marine Protection Research and Sanctuaries Act, the Occupational Safety and Health Act, the Superfund Amendments and Reauthorization Act of 1986, and all other superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as “Environmental Laws”). 8. Term and Termination. This Agreement shall continue in effect until the date it is terminated upon the parties’ mutual agreement in writing, or terminated by Ditch Owners in the event that Ditch Owners determine, in their sole discretion, that the Modifications and/or use of the Property upon which the Ditch is located, are interfering with or otherwise negatively impacting the function or use of the Ditch by Ditch Owners. If Ditch Owners so elect to terminate this Agreement, they shall provide thirty (30) days’ written notice to Lot Owner. Upon termination of this Agreement for any reason, Lot Owner shall, at its sole cost and expense, remove the Modifications and restore the Ditch to a condition as near as practicable to its condition prior to the commencement of any modification or reconstruction of the Ditch by Lot Owner; such restoration work must be verified as sufficient by Ditch Owners’ engineer. 9. Enforcement. This Agreement may be enforced by any proceedings at law or in equity against Lot Owner either to restrain or enjoin violations or to recover damages. Damages shall not be deemed adequate compensation for any breach or violation of any provision hereof, and Ditch Owners shall be entitled to relief by way of injunction as well as any other remedy either at law or in equity. The rights, powers and remedies provided herein shall be cumulative and not restrictive of other remedies at law or in equity, and the exercise of any particular right, power or remedy shall not be deemed an election of remedies or to preclude resort to other rights, powers or remedies. No delay or failure to invoke any available right, power or remedy in respect to a breach of this Agreement shall be held to be a waiver of (or estop Ditch Owners from asserting) any right, power or remedy available upon the recurrence or continuance of said breach or the occurrence of a different breach. The obligations of Lot Owner forth herein shall survive any termination of this Agreement. 10. Litigation. In the event of any controversy, claim or dispute relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable expenses, attorney’s fees and costs. 11. Successors and Assigns. Lot Owner may assign its interest in this Agreement to a person acquiring all of Lot Owner’s ownership interest in the Property, provided that such person assumes all of Lot Owner’s rights and obligations hereunder, and Lot Owner provides written notice to Ditch Owners of such change in ownership and assignment. Lot Owner may not assign this Agreement or the rights and obligations granted hereunder to any other person. 4 12. Execution by Lot Owner. Lot Owner joins in the execution of this Agreement to evidence its agreement to the restrictions, conditions and obligations hereinabove set out, which shall be binding upon Lot Owner, and its successors and assigns. 13. Entire Agreement. This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed, and supersedes any and all prior agreements, proposals, negotiations and representations pertaining to the reconstruction or modification of the portion of the Ditch located on the Property. Any oral representations or modifications concerning this Agreement shall be of no force and effect except a subsequent modification in writing, signed by all parties. This Agreement may be executed in one or more counterparts, all of which when taken together shall constitute one and the same original. IN WITNESS WHEREOF, the parties hereto have signed this Agreement the day and year set forth following their respective signatures. DITCH OWNERS: Aspen Glen Golf Club Management Company, a Colorado corporation By: Name: Title: Date: The Homeowners Association at Aspen Glen, a Colorado nonprofit corporation By: Name: Title: Date: Roaring Fork Water & Sanitation District, a Colorado Special District By: Name: Title: Date: 5 Aspen Glen Golf Company, a Colorado limited partnership By: Management Company for Aspen Glen, Inc., a Colorado corporation, its general partner By: Name: Title: Date: LOT OWNER: Jeffrey Sabo Date: Laurel Sabo Date: 6 Exhibit A Site Plan and Topographic Survey prepared by Pinnacle Design dated February 9, 2016, to be attached 7 Exhibit B Retaining Wall Plans prepared by Kurtz & Associates, Inc. dated January 19, 2016, to be attached 8 Exhibit C Additional Specifications • Lot Owner must maintain a minimum cover of 18” of class 6 aggregate or other quality structural material over ditch in parking/storage areas. Currently there is 6’ of structural fill over the corrugated metal pipe. • 1:1 influence line from boulder wall must be at least 1’ clear of ditch. • Boulder wall to tie into the existing 8’ tall boulder wall on the south end and gaining to a peak elevation of 12’ and then tapering down to meet the existing 4’ boulder wall at the north end. • Any disturbed sections of the ditch must be immediately repaired w/ bentonite amended clayey soil; scarify, add > 4 lbs/sf bentonite, mix well and recompact to match ditch cross section. • The maximum loads and mobility of items to be stored and travel over the Ditch are small and medium sized vehicles, enclosed trailers, job materials and small equipment. Trailers shall be of a size to be hauled by a pickup truck. Maximum weights of equipment are as follows: Pickup Truck GVWR 9200 lb (4800 front/6084 rear) Dump Truck GVWR 29369 lb (10,860 front/18500 rear) Mini Excavator 8200 lb track machine Case Skidsteer 10,000 lb (5000 front/5000 rear) 20’ Enclosed Construction Trailer GVWR 10,000 lb (5000 front/5000 rear) Dump Trailer GVWR 14,000 lb (7000 front/7000 rear) • The dump truck and dump trailer must be unloaded when traveling over or parked over the Ditch.