HomeMy WebLinkAboutCOUNTRY CLUB RESERVE - FDP180030 - - STORMWATER-RELATED DOCUMENTS (3)STORMWATER DRAINAGE DISCHARGE AGREEMENT This Stormwater Drainage Discharge Agreement (“Agreement”) is entered into this ______day of ______________, 2020 (“Effective Date”) by Larimer
and Weld Irrigation Company, a Colorado mutual ditch company and nonprofit corporation (“LWIC” or “Grantor”) and Crystal Cove Development, LLC a Colorado limited liability company (“Grantee”),
collectively herein referred to as the “Parties” or individually as a “Party.”
RECITALS
A.LWIC owns the No. 8 Outlet Ditch located in Larimer County, Colorado and more particularly described on Exhibit A, attached hereto and incorporated herein by reference, (the “Ditch”).
LWIC owns the Ditch by virtue of a historic prescriptive easement, and may not own the land surrounding the Ditch.
B.Grantee owns anapproximately eighty (80) acre parcel located in Larimer County, Colorado and more particularly described on Exhibit B, attached hereto and incorporated herein by reference,
known as “Grantee’s Property.” The Grantee’s Property is located to the west of the Ditch. Grantee is developing Grantee’s Property as a residential subdivision to be known as Country
Club Reserve with approximately 150 single family residential lots.
C.As a part of its development of theGrantee’s Property, Grantee is required to provide certain stormwater detention on site and to have an outlet for stormwater discharge temporarily
stored in its detention pond (“the Pond”). The Pond is located as depicted on Exhibit C, attached hereto and incorporated herein by reference.
D.The Pond will include an outlet structure as depicted on Exhibit C, attached to a twenty-four (24) inch underground drainage pipe (“the Pipe”) which will deliver water from the Pond
to the east and into the Ditch as shown on Exhibit C, attached hereto and incorporated herein.
E. Grantee wishes to discharge up to a maximum of 1.0 cubic feet per second (“CFS”) of stormwater from Grantee’s property through the Pond and the Pipe into the Ditch.
F.Grantor is willing to allow Grantee to discharge up to 1.0 CFS of stormwater from Grantee’s property into the Ditch for this purpose, as shown on Exhibit C, subject to the terms and
conditions of this Agreement.
G.In addition, Grantee will convey historic offsite stormwater flows from the south and west of the Grantee’s Property into the Grantee’s Property stormwater detention facility whereby
Grantee will detain these offsite flows. This additional offsite stormwater will be discharged into the Ditch as set forth above at a rate not to exceed 9.0 CFS. The Parties agree
that the 9.0 CFS is the amount of offsite historic stormwater discharge that will be allowed to discharge from the Grantee’s Property as shown on Exhibit D, attached hereto and incorporated
herein.
H.Grantee will be responsible for securing the necessary easement for the Pipe as it crosses under Turnberry Road and through property owned by Bill Swalling between Turnberry Road and
the Ditch. Such easement agreement will be subject to approval by Grantor, which approval will not be unreasonably withheld.
AGREEMENTNOW, THEREFORE, in exchange for the promises and agreements set forth herein, and for valuable consideration, the Parties mutually agree as follows:
1.Incorporation.The Recitals set forth above are accurate and are incorporated into this Agreement.
2.Construction andDischarge of Water.LWIC hereby agrees to allow Grantee to discharge stormwater via the Pipe into the Ditch.The Pond and Pipe will be constructed and installed according
to the plans and specifications shown on Exhibit C by Grantee at its expense. Construction of the Pond and Pipe shall be coordinated withLWICso as not to interfere with operation and
use of the Ditch by LWIC.No construction or subsequent maintenance of the Pipe shall begin until LWIC is notified and has approved such construction. Grantee’s Pipe will daylight and
deliver water into the Ditch on the west side of the Ditch at the ultimate outfall location shown on Exhibit C. Grantee shall be entitled to discharge throughthePipe into the Ditch
a maximum of one (1)cfs from the Pipe according to the approved plans (Exhibit C).
Construction of Grantee’s Pipe is expected to commence _______________, 20__, to be completed by __________________, 20__. In constructing and installing the Pipe, Grantee agrees to
include a headgate or baffle where the pond discharges water into the Pipe to limit the volume of water to be discharged into the Ditch to one CFS.
3.Ownership / Maintenance.Grantee shall own the Pond which is the subject of this Agreement and shall at all times while this Agreement is in effect be responsible for the appropriate
maintenance, operation, repair and replacement of said Pond and the Pipe. Grantee shall be responsible for all costs of the design, construction and installation of the Pond and thePipe.Grantee
shall take any and all steps necessary to protect the integrity of the Ditch bank at the point of discharge from the Pipe into the Ditch so long as this Agreement remains in effect.
Grantee shall not at any time permit any scouring, washing out or trash accumulation in connection with the Pipe.All water discharged into the Ditch by Grantee shall accrue to LWIC and
may be subsequently used by LWIC at its discretion. LWIC shall have no obligation to store,deliveror return such water to Grantee.
4.Consideration.As consideration for this Agreement, Grantee agrees to pay a one-time, nonrefundable fee to LWIC in the amount of Seventy-FiveThousand Dollars ($75,000.00), payable upon
execution of this Agreement.
In addition, Grantee shall pay to LWIC an annual assessment of Seven Thousand Five Hundred Dollars ($7,500.00) payable on April 1 of each year, commencing April 2021. This amount shall
be adjusted annually in accordance with the United States Bureau of Labor Statistics Consumer Price Index (“CPI”) for Denver-Boulder-Greeley: All items, All Urban Consumers, or its successor
index for the previous year.
Grantee also agrees to reimburse LWIC for its expenses incurred in connection with the preparation of this Agreement, including reasonable attorney’s fees, engineering fees, costs and
staff time. Within thirty (30) days after execution of this Agreement, LWIC will provide Grantee with an invoice summarizing its expenses incurred in this matter. LWIC’s invoice shall
be payable within thirty (30) days of transmittal to Grantee.
5.Grantee’s Right to Discharge Stormwater. Subject to the terms and conditions of this Agreement, Company agrees that, so long as there is no default under this Agreement, the ownership
by Grantee (or its successors) to discharge stormwater from the Pond into the Ditch as described in this Agreement. No surface water shall be discharged from the Pond into the Ditch
other than as specified on Exhibit
C, without the prior written consent of LWIC. The rights granted herein to discharge stormwater from the Pond into the Ditch shall be permanent and perpetual, and no party may terminate
this Agreement without the consent of the other, except as otherwise provided herein.
6.Prohibited Material. Grantee agrees that it (and its successors) shall not knowingly or negligently case or permit the discharge into the Ditch which is prohibited under this Agreement.
For the purposes of this Agreement, “prohibited material” shall mean any contaminant, hazardous waste, or other material regulated or controlled by federal, state or local statute or
ordinance, in concentrations or quantities exceeding those permitted by applicable federal, state, or local statute or ordinance, as such statutes and ordinances now exist or as are
hereafter enacted or amended. In addition, any other material or substances which would materially interfere with LWIC’s use, operation or maintenance of the Ditch are also prohibited.
Grantee (and its successors) agrees to comply with all applicable federal, state and local statutes and ordinances, as now exist or as are hereafter enacted or amended, pertaining to
the discharge of any substance or material into the Ditch.
7.Obligations Following Release of Prohibited Materials. In the event that any prohibited material is discharged from the Pond into the Ditch, Grantee shall immediately, upon becoming
aware of such discharge, give written notice of such release to LWIC and all federal, state and local agencies that require such notice, including, but not limited to, the US Environmental
Protection Agency, the Colorado Department of Public Health and Environment, and the Larimer County Health Departments. In addition, Grantee shall take, or cause to be taken, at its
sole cost and expense, any and all actions necessary or required by law to abate, control, eliminate, and remediate such release in compliance with all federal, state, and local laws,
rules and regulations. LWIC is specifically empowered, but not obligated, by the terms of this Agreement, to take any action and advance such sums as it deems reasonable or necessary,
as determined in LWIC’s sole and absolute discretion, to abate, control, eliminate or remediate any such release and to terminate and prevent further such releases or discharges of prohibited
materials into the Ditch. Upon demand, Grantee shall reimburse LWIC for all such reasonable costs and expenses incurred or sums advanced.
8. Indemnification.Grantee agrees to be responsible for and to indemnify and hold LWIC harmless from any claims, losses or damages incurred by LWICarising from or related to Grantee’s
construction, maintenance and use of thePond andthe Pipe into the Ditch.
9.Default and Remedies. A default shall be deemed to have occurred on the part of the Grantee by any failure or refusal to comply with the terms and conditions of this Agreement or
any other violation thereof, following thirty (30) days written notice of such violation (or such longer period as may be necessary to comply, if compliance cannot be reasonably accomplished
within such 30 day period and so long as Grantee commences compliance during the 30 day period and diligently proceeds to completion). In the event of an emergency involving the discharge
or a threatened discharge of a prohibited material from the Pond into the Ditch, LWIC may, without having the obligation to do so, act to abate, control, remediate or prevent such release
of a prohibited material into the Ditch, and any notice of default under such circumstances shall be deemed waived on the part of the Grantee by any failure or refusal to pay assessments
due under this Agreement when due. In the event of a default, LWIC may, without limitation upon any other legal or equitable remedy available to it under this Agreement or otherwise,
exercise any of the following remedies:9.1Terminate this Agreement and prevent any further discharge of stormwater from the Pond into the Ditch.9.2With or without terminating this Agreement,
bring suit against Grantee to recover LWIC’s damages, including interest, as a result of such default.9.3With or without terminating this Agreement, bring an action for injunctive relief
and/or specific performance or for any other equitable remedy allowed or provided by law.9.4With or without terminating this Agreement, and after notice and opportunity to cure, file
and record a lien against any or all part of the Grantee’s Property for all sums due LWIC, including assessments and interest.
10.No Waiver.No provision of this Agreement may be waived except by written instrument signed by the Party to be charged with such wavier. Failure by any Party to enforce any provision
of this Agreement shall not constitute a waiver of such provision, and no waiver by any Party to this Agreement of any provision of this Agreement on one occasion shall constitute a
waiver of any other provision or of the same provision on another occasion.
11.HOA. At such time as the Grantee has completed development of the Grantee’s property and is no longer a declarant in control under the applicable Declarations and Covenants, Grantee
shall cause the Homeowners’ Association for the Grantee’s Property to execute this Agreement and be responsible as the Grantee’s successor assignee. As a part of this process, the contact
information for the HOA’s officers shall be provided to the Grantor.
12.Successors and Assigns.This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties. The Parties agree that this Agreement constitutes
a burden to the property rights of LWIC and a benefit to the Grantee’s Property and that this Agreement shall therefore be deemed to run with the land until it is terminated.
13.Third Party Rights.The easements and rights created, reserved, granted and established in this Agreement do not, are not intended to and shall not be construed to, create any easements,
rights or privileges in and for the benefit of third parties.
14.Severability.If any clause or provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby.
15.Notices.All notices required or permitted under this Agreement shall be in writing and shall be deemed given when a copy thereof, addressed as provided herein, is actually delivered,
personally, by courier, or by certified or registered mail, return receipt requested, or by successful and confirmed facsimile transmission,To LWIC:Attn: Kim NelsonLarimer and Weld
Irrigation Company106 Elm AvenueEaton, CO 80615Phone: (970) 454-3377Facsimile: (970) 454-0154knelson@eatonditch.comWith a copy to:
Attention: Timothy J. DowThe Dow Law Firm, LLC323 South College Ave., Suite 6Fort Collins, CO 80524Phone: (970) 498-9900Facsimile: (970) 498-9966dow@dowlawfirm.comTo Grantee:
Attn: Jon Turner, Manager
Crystal Cove Development, LLC
6355 Fairgrounds Avenue, Suite 300
Windsor CO 80550
Phone: 970-204-9393
To HOA: (to be provided)
Name: _________________________Title: __________________________Address: ______________________________________________________Phone: _________________________Email: _________________________
16.Governing Law.The validity and effect of this Agreement shall be determined in accordance with the laws of the State of Colorado. Venue for any legal proceeding arising under this
Agreement shall be exclusively proper in Larimer County, Colorado.
17.Entire Agreement.This Agreement and the exhibits hereto referred to above, constitute the final and complete expression of the Parties’ agreements with respect to this Agreement.
Each Party agrees that it has not relied upon or regarded as binding any prior agreements, negotiations, representations or understandings, whether oral or written, except as expressly
set forth herein.
18Arbitration/Fees. Any disputes or breaches arising under this Agreement shall be subject to binding arbitration before a sole qualified arbitrator pursuant to the Colorado Arbitration
Act. LWIC and Grantee shall equally share the fees and costs of the arbitrator. If the parties are unable to agree to the appointment of an arbitrator, the Larimer County District Court
shall be empowered to appoint a qualified arbitrator. Any orders or awards entered by the arbitrator shall be enforceable through the Larimer County District Court. The arbitration shall
be held within forty-five (45) days of written demand from one Party to the other.In the event of breach or default by one party, the prevailing party shall be entitled to payment of
reasonable attorney and engineering fees and costs incurred as a result of said breach from the breaching party. All amounts due from one party to the other shall bear interest at the
rate of six percent (6.0%) per annum from the date of breach until paid.
19.Recording. After execution of this Agreement by the Parties, LWIC will record the original of this Agreement with the Larimer County Clerk & Recorder. IN WITNESS WHEREOF, the Parties
hereto have executed this Agreement intending that this Agreement be effective as of the Effective Date.
GRANTOR: Larimer and Weld Irrigation Company,
a Colorado mutual ditch company and nonprofit corporation
By:Daniel Haythorn, President
STATE OF COLORADO))ss.
COUNTY OF WELD)
The foregoing instrument was acknowledged before me this ___ day of _____________, 2020 by Daniel Haythorn, as President of Larimer and Weld Irrigation Company.
Witness my hand and official seal.
My commission expires:Notary Public
GRANTEE: Crystal Cove Development, LLC
By: ________________________________Jon Turner, Manager
STATE OF COLORADO))ss.
COUNTY OF ___________)
The foregoing instrument was acknowledged before me this ___ day of _____________, 2020 by Jon Turner, as Manager of Crystal Cove Development, LLC.
Witness my hand and official seal.
My commission expires:Notary Public
HOA: ______________________________
BY: ________________________________
Name: ______________________________
Title: _______________________________
STATE OF COLORADO))ss.
COUNTY OF ___________)
The foregoing instrument was acknowledged before me this ___ day of _____________, 2020 by _________________________, as __________________________(title) of _____________________________________.
Witness my hand and official seal.
My commission expires:Notary Public
EXHIBIT A
DITCH
The Larimer Reservoir and Canal Company No. 8 Outfall Ditch located in Larimer County, Colorado, including but not limited to the portions thereof located in Sections 29 and 32 of Township
8 North, Range 68 West of the 6th P.M., Larimer County, Colorado.
EXHIBIT B
GRANTEE’S PROPERTY
A tract of land being the North Half of the Northeast Quarter of Section 30, Township 8 North, Range 68West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado,
more particularlydescribed as follows:
Considering the North line of the Northeast Quarter of said Section 30 as bearing South 89° 21 11" Eastand with all bearings contained herein relative thereto:
BEGINNING at the Northeast corner of said Section 30; thence, along the East line of the NortheastQuarter of said Section 30, South 00° 38' 48" West, 1319.23 feet; thence, departing
said East line, andalong the South line of the North Half of the Northeast Quarter, North 89° 25' 56" West, 2644.51 feet toa point on the West line of the Northeast Quarter; thence along
said West line, North 00° 40' 57" East,1322.88 feet to the North line of the Northeast Quarter; thence along said North line, South 89° 21' 11"East, 2643.69 feet to the POINT OF BEGINNING.
Contains 3,492,994 square feet or 80.188 acres, more or less.
EXHIBIT C
PROPOSED OUTFALL STRUCTURE TO NO. 8 DITCH
EXHIBIT D
SERRAMONTE OUTFALL MODIFICATIONS