HomeMy WebLinkAboutMamm Creek-Temp Construct Easement Agreement - Eagle Springs-Recorded_01-23-2024993016 01/23/2024 04.26.06 PM Page 1 of 10
Jacklyn K. Harmon, Garfield County, Colorado
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Jacklyn K. Harmon, Garfield County, Colorado
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RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
AES MAMM CREEK SOLAR, LLC
2180 South 1300 East, Suite 500
Salt Lake City, Utah 84106
Attention: Land Manager
Space above this line for Recorder's use only
TEMPORARY CONSTRUCTION AND STAGING EASEMENT
THIS TEMPORARY CONSTRUCTION AND STAGING EASEMENT (this
"Agreement") is made as of the /gay of December, 2023, by EAGLE SPRINGS ORGANIC
LLC, a Colorado limited liability company ("Grantor') and AES MAMM CREEK SOLAR, LLC,
a Delaware limited liability company ("Grantee"). Grantor and Grantee are sometimes referred to
herein individually as "Party" or collectively as the "Parties".
RECITALS
A. Grantor is the owner of that certain real property located in Garfield County,
Colorado ("County") consisting of Tax Map Parcel(s) 217917400731, further described in Exhibit
A, attached hereto and made of part hereof (collectively, the "Grantor Property').
B. Grantee intends to develop and operate on certain real property located adjacent to
or near the Grantor Property ("Grantee Property") a solar energy generating facility and related
facilities (collectively, the "Solar Facility").
C. It is the desire of Grantor to grant and convey to Grantee a temporary access and
construction staging easement over and across portions of the Grantor Property described herein
for the benefit of the Grantee Property.
EASEMENT
NOW, THEREFORE, in consideration of the sum of the Annual Payment (as defined
below) and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Grantee each hereby agree as follows:
1. Grantor hereby grants and conveys to Grantee temporary access, construction and staging
easements (the "Easements") for the benefit of Grantee, its contractors, tenants, employees,
assigns, designees, and licensees over and across approximately five and two hundredths (5.02)
acres of the Grantor Property described or depicted on Exhibit B (the "Temporary Construction
and Staging Area Easement") together with such areas of the Grantor Property reasonably required
for the purposes contemplated herein (collectively, the "Easement Areas"). Grantee may use the
Easement Areas for access, construction, a staging area and the receipt, storage and assembly of
equipment (including construction equipment), vehicles, and materials related to the design and
construction of the Solar Facility, including, without limitation, grading and removal of any
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vegetation, providing power supplies, offices and fencing and constructing roads or access areas
for pedestrian and vehicular ingress and egress to and from the Easement Areas. All personal
property placed within the Easement Areas by Grantee shall remain the property of Grantee.
2. The Easements shall automatically terminate and become null and void upon the earlier of
(i) the twenty-four (24) month anniversary of this Agreement, or (ii) written notice from Grantee
delivered to Grantor terminating this Agreement, which notice may be provided at Grantee's sole
discretion.
3. Grantee shall perform all construction activities with reasonable diligence and in
accordance with all applicable laws. Following the termination of the Easements, Grantee shall
restore the condition of any area it disturbs within the Easement Areas at Grantee's sole cost and
expense, and in no worse condition as existed prior to the execution of this Agreement. Grantor
agrees to cooperate with Grantee in obtaining any governmental approvals or permits necessary
for Grantee to exercise its rights under this Agreement.
4. As consideration for Grantor's grant of the Easements, Grantee shall pay to Grantor annual
consideration of One Thousand Three Hundred and No/100 Dollars ($1,300.00) per acre of the
Temporary Construction and Staging Area Easement in advance (the "Annual Pa. ent"),
commencing as of Januaryl, 2024, and continuing on the first day of each January until the
Easements are terminated pursuant to Section 2 above. The first and final payment of the Annual
Payment shall be prorated for any partial months. The Annual Payment shall be paid to Grantor
by check or wire deposit to the individual or account designated by Grantor, within thirty (30)
business days from the mutual execution of this Agreement. Grantor shall provide a completed
W-9 or other payee formation document, and wire information requested by Grantee prior to the
first payment of the Annual Payment or any other fees which may be required under this
Agreement. Grantee's failure to timely make any Annual Payment or comply with any other
provision of this Agreement shall not be a default hereunder until Grantee fails to make such
payment or otherwise cure such breach within thirty (30) business days following written notice
from Grantor specifying Grantee's breach hereunder.
5. All costs incurred for any of Grantee's survey, title, or other due diligence activities, in
recording this Agreement (including any applicable recordation taxes, transfer taxes, or
grantor/grantee taxes), in using any escrow services (at Grantee's election) to facilitate making any
payments due under this Agreement shall be borne solely by Grantee. Grantor agrees to cooperate
in completing and furnishing any documentation reasonably requested by Grantee or Grantee's
title insurance company that may be required as a condition of title company extending any title
insurance for purposes of this Agreement or for the construction and financing of the Solar Facility.
Grantor shall provide, within ten (10) days after written request from Grantee, a written
confirmation whether the Agreement is in good standing and that the Agreement is in full force
and binding on the Parties, in a form approved Grantee and satisfactory to any other parry
providing financing for the Solar Facility.
6. It is a condition precedent to Grantee's obligations to deliver to Grantor any Annual
Payment or other fees required under this Agreement that Grantor shall terminate any leases
against the Grantor Property as to the Easement Areas, and Grantor represents and warrants to
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Grantee that there are no leases or other contracts providing a right to any third party a right to use
the Easement Areas, unless otherwise disclosed in this Agreement.
7. The terms and provisions of this Agreement shall be deemed to be covenants running with
the land and shall be binding upon and inure to the benefit of the successors and assigns of the
Parties hereto and any person claiming by, through or under any of them or their respective
successors and assigns. Each Party hereto shall have the right to prosecute proceedings at law or
in equity against the defaulting Party, or any other person or party, violating or attempting to
violate the terms hereof and to recover damages for any such violation or default. Such
proceedings shall include the right to restrain by injunction any violation or threatened violation
by another of any of the terms, covenants, restrictions or conditions herein or to obtain a decree to
compel performance thereof, it being agreed that the remedy at law for a breach of such term,
covenant or condition is not adequate. All remedies under this Agreement shall be cumulative and
not alternative and invocation of any one such right or remedy shall not constitute a waiver or
election of remedies as to any other permitted right or remedy. Grantor represents and warrants to
Grantee that Grantor owns the Grantor Property and has the authority to enter into this Agreement.
8. This Agreement shall be governed by and interpreted in accordance with the laws of the
State of Colorado. This instrument may be executed in counterparts, each of which shall be deemed
an original and all of which shall constitute one and the same instrument. If any provision of this
Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent
necessary to render the same valid or it shall be excised from this Agreement and the remainder of
this Agreement shall not be affected thereby.
9. Any notice, request or demand required or permitted to be given pursuant to this Agreement
shall be in writing and shall be deemed sufficiently given only if delivered in writing i) by hand
by messenger at the address of the intended recipient; ii) one business day after it is sent prepaid
by Federal Express/UPS (or a comparable guaranteed overnight delivery service); or iii) three
business days after it is deposited in the United States first class mail (registered or certified,
postage prepaid, with return receipt requested), addressed as follows:
For Grantor: Eagle Springs Organic LLC
5454 County Rd. 346
Silt, CO 81652
Email: kensack@me.com
For Grantee: AES Mamm Creek Solar, LLC
c/o AES Clean Energy, LLC
2180 South 1300 East, Suite 600
Salt Lake City, Utah 84106
Attn: Legal Department
CC Email: acedlegalnotices@aes.com
10. In any litigation between the Parties regarding this Agreement, the losing Party shall pay
to the prevailing Party all reasonable expenses and court costs including reasonable attorneys' fees
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Jacklyn K. Harmon, Garfield County, Colorado
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incurred by the prevailing Party. A Parry shall be considered the prevailing Party if. (i) it initiated
the litigation and substantially obtains the relief it sought, either through a judgment or the losing
Parry's voluntary action before trial, or judgment; (ii) the other Party withdraws its action without
substantially obtaining the relief it sought; or (iii) it did not initiate the litigation and judgment is
entered for either Party, but without substantially granting the relief sought.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
and year above first above written.
GRANTOR:
EAGLE SPRIN O LCr�
By:
Name: Kenneth Sack
Title: President
State of C )
County of G a.f( l-P_` (�
On LU L �) before me, lep-h N hEt5n a notary public,
personally appeared e-Yl f'le1 who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instru=on
d
acknowledged to me that he executed the same in his authorized capacity as
behalf of EAGLE SPRINGS ORGANIC LLC, and that by their signature on he instrument, the
person executed the instrument on behalf of the limited liability company.
I certify under PENALTY OF PERJURY under the laws of the State of h' 6 fQAQ that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
EEDUSTY l_EAH SHEETS
otary Public
e of Colorado
D #20164011800
on Expires 08-18-2026
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
and year above first above written.
GRANTEE:
AES Mamm Creek Solar, LLC,
a Delaware limited liability company
B
N
T;
State of Utah
County of Salt Lake
On beCg&tber )q, before me, owtsiij tot isthat L , a notary
public, personally appeared `S /A-Mz<, (�{ � 1}�C_ who proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument, the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Utah that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
CRYSTAL BWSDELL
(� 4 Notary Public Vote of Utah
My Commission Expires on:
Signatur (s �° November 21, 2026
•° ` Comm. Number: 728026
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Jacklyn K. Harmon, Garfield County, Colorado
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Jacklyn K. Harmon, Garfield County, Colorado
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EXHIBIT A
Legal Description of Grantor's Property
PIN:217917400731
Quarter: SE Section: 17 Township: 6 Range: 92 A TR OF LAND IN SESW. EXCEPT A
TR. OF LAND CONT..266 AC.+/- AS DESC. IN BOUNDARY LINE ADJUSTMENT
AFFIDAVIT REC. #791735 AND QCD REC.#791736.
w - Giomi
15t
21111911721+-,W)
� Account R082659
,, Owner EAGLE SPRINGS ORGANIC, LLC
Physical Address Not available
SILT 81652
Mailing Address PC BOX 351 RIFLE, CC 81650
Land Acres 1 20000005
y 2023 Mill Levy 65.5390
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Jacklyn K. Harmon, Garfield County, Colorado
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Jacklyn K. Harmon, Garfield County, Colorado
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EXHIBIT A
Legal Description of Grantor's Property
A tract of land being situated in Section 17, Township 6 South, Range 92 West of the 6th P.M.,
County of Garfield, State of Colorado, said tract of land being described by metes and bounds as
follows:
(Bearings as recited in this description are based upon a record bearing of North 88043'52" East
for the South line of the SWl/4SW1/4 of Section 16, Township 6 South, Range 92 West of the 6th
P.M. monumentation being found in the field at the Southwest corner of said SW'/4SW'/4 is a
Garfield County Surveyor brass cap monument and at the Southeast corner of said SE'/4SW'/4 is a
rebar and aluminum cap, PLS No. 13501.)
Beginning at the Southeast corner of said Section 17, said Southeast corner being monumented
with a Garfield County Surveyor brass cap and standard monument being found in place; thence
North 00°28'01" West 1340.97 feet to the Northeast corner of the SE'/4SE'/4 of said Section 17;
thence along the North line of said SE'/4SE'/4 South 89°39'58" West 1330.69 feet to the
Northwest corner of said SE'/4SE'/4 the TRUE POINT OF BEGINNING of the tract of land
herein described; thence South 00°29'15" East 606.92 feet; thence South 68°54'07" West 732.84
feet; thence North 45°43'10" West 392.64 feet; thence North 63°00'39" West 224.98 feet; thence
North 05'00' 15" East 194.47 feet; thence North 62°43'01 " East 194.06 feet; thence South
86°10'25" East 182.21 feet; thence North 10°52'22" East 184.25 feet; thence North 58°45'19"
East 201.71 feet; thence North 44°56'02" West 187.07 feet; thence North 57°23'37" West 312.29
feet; thence North 10°12'43" West 232.55 feet; thence North 32°49'27" West 622.16 feet; thence
North 64°41' 18" West 224.24 feet; thence North 81 °56'44" West 253.28 feet; thence South
57°43'16" West 114.45 feet; thence South 32°07'59" West 137.37 feet; thence North 88°37'32"
West 310.70 feet; thence South 65°10'14" West 89.21 feet; thence South 41°23'33" West 197.11
feet; thence South 67°35'52" West 75.86 feet; thence South 89°35'09" West 73.48 feet; thence
North 00°24'51" West 1346.42 feet; thence South 76'03'13" East 837.53 feet; thence South
76°04'42" East 1631.63 feet; thence South 55°56'05" East 295.85 feet; thence South 00°29'15"
East 1446.94 feet to the True Point of Beginning.
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EXHIBIT B
Depiction or Description of Temporary Construction Easement Areas
Being a portion of that parcel convoVed to Eagle Springs Organic LLC in Reception No. 791736 of the
Official Public Records of Garfield County, Colorado (PID 217791741-00731.'J, and being located in the West
1-1alt JW/2) of Section 17, Township Six South (T651, Range Ninety T-YoD *JAvest 6" Principal,
Meridian, Garfield Count.y, Colorado and� more particullarty described as follibws..
Commencing at a found 3.1/4" brass cap starnped "Garheld Counpe
of said section 17 f ro m which a 3 1/4" a[u mintm cap stamped "VS 13501" for the East Qua rte r co rner of
Section 20, Towreship 6 South (MS), Range 9.2. 'West (,R925, 6 It' P ri ndpall Polleridlia ri, Go rtie Id Cou rity
Colorado bears South,00'35'1 I' East' being th c bearing which al I others i ri this descTi pti o n are Lased on,
2525.11 feet;
Thence 'North 54'01'51" West, 439953 feet to the true Rini ,of Beginning for this •description-, Thence
South 35"S2'11 Vdes.t, 16533 feet„ Thence South 37'20%8' Volest, 135.45 feel, Thence South 97'16.'22"
West, 172.07,teet; Thence South 47"47'0S` West,22-93 feet, Thence, South 8,9'15'46" %Vest_35.01 feet;
Thence North 00'42'37" West,:120.16 feet, Thence North8,9"09'12"' East, 51.41teet, Thence North
01*GV43" West, 439.03 feet; Thence North 19'45'23" East, 1,36.83 teet'i Thence North 88'.39',04" East,
304.71 feet; Thence South 01'2956" East, 430.08 feet to theftint of Beginning.
Containing 5.02 acres more or less.
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