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STORM WATER DISCHARGE EASEMENT AGREEMENT

 

This Storm Water Discharge Easement Agreement (this "Agreement") is made by and between the _______________________________ (the "Trust"), _______________________, a ________ limited liability company ("ABC"), and ______________________________, a ________ limited liability company ("DEF"), and is dated for reference purposes as of May ____, 2001. DEF and ABC are sometimes referred to jointly as "Developers."

 

RECITALS

 

1.               DEF and ABC own the parcels of undeveloped real property located in ___________ County, Colorado described on Exhibit A to this Agreement (the "DEF Property" and the "ABC Property," respectively). The DEF Property and the ABC Property are sometimes referred to together as the "Development Property." The Trust owns the real property located in _______ County, Colorado known as ____________________________________________, Reception No. ________ (the "Trust Property").

 

2.               In connection with the development of the Development Property into a residential development, Developers desire to discharge rates of storm water runoff from the Development Property in amounts not to exceed maximum rates of historic flow into the existing pond located on the Trust Property (the "Pond") over and across that portion of the Trust Property described on Exhibit B to this Agreement (the "Easement Property"). Storage levels in the Pond are maintained by evaporation. There are no outflows from the Pond.

 

3.               Storm water run-off from the Development Property has discharged into the ____________ since the construction of the Ditch. The _______ Ditch runs along the boundary between the Development Property and the Trust Property. Storm water run-off from the Development Property, during construction of the residential development and after the development is complete, will no longer be allowed to discharge into the ______ Ditch.

 

4.               Storm water run-off from the developed Development Property will consist of run-off from residential areas, including parks and yards, and sidewalks, streets, driveways, parking lots, and other impervious structures. As a result of the residential development, storm water run-off will likely contain a greater variety of pollutants and an increase in the volume of pollutants over that contained in historical storm water flows from the undeveloped Development Property.

 


5.               Developers intend to assign the rights under this Easement Agreement to the residential developer of the Development Property ("Builder") prior to the construction of any improvements on the Easement Property and such residential developer shall assume the obligations of Developers under this Agreement. Developers and the Trust understand that subsequent to such construction, such improvements will be conveyed to, and the right to use the easement granted herein for storm water runoff will be assigned to, a homeowner's association (the "HOA") to be formed subsequent to the development of the Development Property subject to the obligation of the HOA as the representative of the owners of homes and other improvements on the Development Property to perform the obligations of Developers under this Agreement.

AGREEMENT

 

1.               Grant of Easement. For and in consideration of the payment of $________ and for the mutual promises set forth herein, the Trust grants to Developers and their successors and assigns a perpetual, non-exclusive easement (the "Easement") in, to, through, and over the Easement Property for the following purposes: (i) to construct, install, reconstruct, operate, use, maintain, repair, replace, and remove storm sewer lines, manholes, mains, rip rap, boulders, wing walls, and related improvements (collectively, the "Improvements"); and (ii) to discharge storm water runoff originating on the Development Property into the Pond in amounts not to exceed historic rates of flow of such storm water runoff from the Development Property onto the Trust Property which, for the purposes of this Agreement, are agreed to be not in excess of 3.3 cubic feet per second for a five-year storm event and not to exceed 23.9 cubic feet per second for a 100-year storm event. Developers accept the condition of the Easement Property and the Trust Property (to the extent of any license or use rights therein) in their "AS IS" condition. By entering this Agreement, Developers waive and release the Trust from any liability, obligation, damage, or claim of whatsoever nature relating to the condition of the Easement Property or the Trust Property, whether apparent or hidden. Developers waive any right to require the Trust to maintain the Easement Property or the Trust Property in a safe condition.

 

2.               Limitation on the Trust's Use of the Easement Property. The Trust shall not construct or place any structure, building, or other surface improvements, whether temporary or permanent, or plant or locate any trees or shrubs on the Easement Property. Any such improvement, trees, or shrubs now or hereafter located on the Easement Property may be removed by Developers without liability. Notwithstanding the preceding, the Trust may construct, install, maintain, repair, and replace, in compliance with applicable governmental requirements, a fence along any boundary of the Easement Property. To the extent not inconsistent with Developers' use of the Easement Property, the Trust may install and maintain grass or other ground cover in the Easement Property with the prior agreement of Developers, which agreement shall not be unreasonably withheld or denied.

 

3.               Maintenance. At all times, Developers shall maintain the Improvements and the Easement Property (to the extent of Developers' use thereof) in a safe and attractive condition and in compliance with all applicable governmental requirements. Without limiting the generality of the preceding, all Improvements constructed by Developers shall meet or exceed all applicable requirements and specifications of all governmental agencies having jurisdiction of matters relating to storm water drainage in the area where the Trust Property is located to the end that all such Improvements will be qualified to be accepted by any such storm water district, if otherwise appropriate. All costs of maintenance and similar activities required by this paragraph 3 and by the following paragraph 4 shall be borne solely by Developers.


 

4.               Restoration of Easement Property. Upon completion of any activities of Developers which disturb the surface of the Easement Property, including the fence now located on or near the Easement Property and any future improvements permitted by this Agreement, Developers shall promptly restore the Easement Property and such fence to the condition they were in immediately prior to such disturbance or as otherwise required by this Agreement, except as otherwise provided in this Agreement or as necessarily modified to accommodate the Improvements. If the existing fence cannot be restored in its current location, Developers shall relocate it to a position reasonably satisfactory to the Trust.

 

5.               Subjacent and Lateral Support. The Trust grants to Developers the right of subjacent and lateral support for the Improvements, and the Trust shall not take any action which would unreasonably or materially impair the lateral or subjacent support for the Improvements.

 

6.               Conduct of Developers. At all times, all actions of Developers on or about the Easement Property or in connection with the Easement Property and all activities of Developers contemplated by this Agreement shall be taken in full and strict compliance with all governmental requirements. Developers shall at all times be responsible for the quantity and quality of all waters discharged onto the Easement Property from the Development Property. Developers shall be responsible for compliance with all applicable federal, state, and local requirements for the construction, operation, use, and maintenance of the Improvements and for all discharges of storm water from the Development Property into the Pond, for storage of the storm water in the Pond, and for any discharge of such storm water from the Pond, including compliance with all applicable federal, state, and local water quality requirements.

 

7.               Additional Rights of Developers. Developers shall have the right to use so much of the Trust Property which is adjacent to the Easement Property as may be reasonably necessary in connection with the construction, reconstruction, maintenance, repair, replacement, and removal of the Improvements. Such activities shall not unreasonably interfere with the Trust's use and enjoyment of such adjoining property, and all improvements and landscaping located on such adjoining property shall be promptly restored by Developers to their condition prior to such use by Developers.

 


8.               Indemnity. Developers shall indemnify, defend, and hold harmless the Trust from and against any and all losses, claims, actions, damages, liabilities, penalties, fines, or expenses, of whatsoever nature, including, without limitation, reasonable attorneys' fees and costs on account of mechanics' lien claims, injury to persons, the death of any person, or damages to property ("Claims") arising from the use of the Easement Property, the Pond, or adjoining areas, or from the discharge of storm water onto the Easement Property or into the Pond, or from the storage of storm water in the Pond, or the release or discharge of the storm water from the Pond, or from any activities contemplated by this Agreement, in each case undertaken by Developers or any other person claiming by, through, or under Developers, except to the extent any such Claim results from the wrongful acts or omissions or the negligence, gross negligence or willful and wanton acts of the Trust. The indemnity set forth in this paragraph shall be effective without regard to compliance or non-compliance with this Agreement by Developers or the Trust, provided Trust shall act reasonably in the maintenance and operation of the Pond and the amount of any Claim shall be reduced to the extent directly caused by the Trust's non-compliance with this requirement or any other requirement of this Agreement.

 

9.               Insurance. Developers shall, at all times this Agreement is in effect, maintain a policy of general liability insurance with respect to the Easement Property, and Developers' activities upon the Trust Property. The amount of such insurance shall be no less than $1,000,000.00 and shall be increased to an amount then commercially reasonable upon notice from the Trust. Such policy shall name the Trust as an additional named insured. All such policies shall provide that they shall not be amended or terminated except upon at least 30 days' prior written notice to the Trust. Upon ten days of the request of the Trust, Developers shall provide to the Trust on ACORD Form 27 evidence of insurance coverage meeting the requirements of this paragraph. In the event at any time Developers fail to have in place the insurance coverage required by this paragraph or fails to provide evidence of insurance as required by this paragraph, the Trust shall have the right, but not the obligation, to purchase, in its own name or in the name of Developers insurance coverage as required by this paragraph and the cost thereof shall be the responsibility of Developers as provided in paragraph 13, below. Upon assumption of this Agreement by the HOA, the HOA shall provide and pay for the insurance required by this paragraph.

 

10.            Ingress and Egress. Developers have the right of access over and across the Trust Property for itself and its agents to the extent reasonably necessary in order to exercise Developers' rights under this Agreement. In exercising such right of ingress and egress, Developers shall provide reasonable advance notice to the Trust of proposed activities. Developers shall limit times of access to reasonable business hours and areas of access as may be reasonably directed by the Trust from time to time.

 


11.            Mechanics' Liens. Developers shall, at all times, keep the Easement Property and the Trust Property free from mechanics' lien claims or similar liens arising on account of any act by or on behalf of Developers. Prior to commencing or contracting for any work to be performed on or about the Trust Property, Developers shall provide written notice to all contractors, subcontractors, and material suppliers with respect to such work that any mechanics' lien claim on account of the provision of such work or materials shall attach only to Developers' interest in the Easement Property under this Agreement and shall not, in any event, attach to any interest of the Trust in the Easement Property or the Trust Property. Prior to commencing any work on or about the Easement Property, Developers shall conspicuously post, and maintain posted during the entire course of such work, a notice containing the information in the preceding sentence and meeting the requirements of Colo. Rev. Stat.  38-22-105(2). In the event any mechanics' lien is recorded with respect to the Easement Property or the Trust Property on account of any activity of Developers or any use of the Easement Property or the Trust Property by or on behalf of Developers, Developers shall, within 30 days of notice by the Trust (or, if earlier, within 30 days of a complaint being filed to enforce such mechanics' lien), cause such mechanics' lien to be removed from the Trust Property by posting a bond with the district court as permitted by statute.

 

12.            Reserved Rights of the Trust. The Trust reserves the rights to use the Easement Property and to grant further easement interests in the Easement Property to others so long as such interest and uses do not materially or unreasonably interfere with the use of the Easement Property by Developers in accordance with this Agreement.

 

13.            Performance of Developers' Obligations by the Trust. In the event Developers fail to perform any obligations under this Agreement within ten days of written notice by the Trust or fail to provide insurance or evidence of insurance as required by paragraph 9, above, the Trust may, but is not required to, perform any such obligation of Developers at the sole cost and expense of Developers. Except as may be necessary to prevent damage or injury on an emergency basis, Trust shall not commence performance of any unperformed obligation of Developers as long as, within such ten-day period, Developers shall have commenced curative action and thereafter shall prosecute such curative action diligently to completion. Any amount required to be paid by Developers to the Trust pursuant to this paragraph shall bear interest until paid at the rate of interest six percentage points greater than the prime rate of interest then announced by Wells Fargo Bank West National Association or other major national banking association in Denver, Colorado identified by the Trust. All amounts so expended by the Trust plus interest shall constitute a lien against the Development Property, provided, however, to the extent any portion of the Development Property is subject to a HOA, the obligations of Developers under this paragraph shall not be a lien on the individual residence of any homeowner or condominium owner, but the obligation shall be a personal obligation of each such HOA and be a lien on all real property which is owned by such HOA and which, at any time, was a part of the Development Property.

 

14.            Inurement. The benefits and burdens of this Agreement shall inure to the benefit of and be binding upon the parties and their respective legal representatives, successors, and assigns. The rights and obligations set forth in this Agreement are intended to run with the land.

 


15.            Assignment and Delegation. Developers may, from time to time, and with the written approval of the Trust, which shall not be unreasonably withheld, assign or delegate to any governmental entity, to the HOA in accordance with the provisions of this Agreement, or to any third party having an interest in the Development Property the rights and obligations of Developers under this Agreement to maintain, operate, repair, and replace the Easement Property and related Improvements and the right to discharge storm water runoff into the Pond as set forth in paragraph 1, above. The Trust may condition its approval upon, among other things, the adequacy of provision for performance of all of Developers' obligations under this Agreement. Any Builder shall assume the obligations of Developers under this Agreement until released as provided below. Upon Developers' and any Builder's compliance with the terms of this paragraph 15 and paragraph 16, below, Trust shall release Developers and any such Builder from liability under this Agreement. Without limiting the generality of the preceding, upon the assignment to ________________ of all of Developers' obligations under this Agreement and _________________'s assumption of all obligations of Developers under this Agreement in a manner satisfactory to Trust, Trust shall release DEF and ABC from their obligations under this Agreement.

 

16.            Assignment to HOA. Upon completion of the construction of the Improvements on the Easement Property it is anticipated that the ownership of the Improvements will be conveyed to the HOA, and the rights under this Easement Agreement to construct, install, reconstruct, maintain, repair, replace and remove, the Improvements and the right to discharge storm water runoff originating on the Development Property into the Pond in conformance with this Easement Agreement will be assigned to the HOA.

 

a. Approval by the Trust of the conveyance of the Improvements and the Developers' rights under this Agreement to the HOA is conditioned on:

 

i. the written agreement by the HOA to assume all obligations of Developers under this Agreement and to comply with all of the terms of this Agreement;

ii. the covenants, conditions, and restrictions ("CC&Rs") of the HOA being satisfactory in form and substance to the Trust, which CC&Rs shall (A) refer expressly to the obligation of the HOA to assume all obligations of the Developers under this Agreement; (B) provide that the HOA shall assess its members an amount necessary to pay in a timely fashion all amounts owed to the Trust under this Agreement; and (C) encompass all lots or parcels within the Development Property which, from time to time, are improved with structures.

 

Any property not subject to assessment by the HOA for the expenses related to this Agreement shall not be entitled to discharge water pursuant to the Easement.

 

b. Notwithstanding anything in this Easement Agreement to the contrary, unless and until expressly released by the Trust, Developers, their successors in interest, and any assignee of this entire Easement Agreement, shall be and remain obligated and liable for all obligations of Developers under this Agreement. All documents executed in connection with the assignment and assumption of this Agreement shall be satisfactory in form and substance to the Trust. Upon compliance by the HOA with the provisions of this paragraph 16, the Developers and all Builders (upon sale to home buyers of all homes built by them on the Development Property) shall be released from the obligations assumed by the HOA.

 


17.            Maintenance of Pond. All expenses of the operation, maintenance, and reconstruction of the Pond, including, without limitation, desilting, if necessary, shall be shared on a reasonable basis between Developers and the Trust. The Trust and Developers shall cooperate with respect to all issues regarding handling of the storm water discharge provided for in this Agreement by the Pond and provide notice to each other of perceived or anticipated problems in that regard so as to resolve capacity problems expeditiously and proactively. In the event that Developers discharge storm water runoff originating on the Development Property into the Pond in an amount that alone, or in combination with other waters, causes the capacity of the Pond to be exceeded, Developers shall be responsible for any resulting damages and shall be liable for any violations of any federal, state, or local requirements, including any environmental laws, in each case attributable to the quantity or quality of waters discharged into the Pond that originated on the Development Property. Without limiting the generality of the preceding, Developers shall, at all times, use the best commercially reasonable practices to prevent limit, as provided in paragraph 18, below, the amounts of silt, hazardous or toxic substances and pollutants (as defined in any applicable state or federal law), and other contaminants from entering the Easement Property or the Pond.

 

18.            Conditions of Use. The right of Developers to continue to discharge storm water run-off into the Pond is expressly conditioned on the run-off being of sufficient quality not to cause or contribute to any material harm, or to otherwise materially damage the Pond or adversely and materially impact the present or future uses of the Pond. If at any time the Trust, or it successors or assigns, reasonably determines that the quality of the storm water run-off has materially damaged or is materially damaging the Pond, the Trust and its successors or assigns may demand, and Developers shall take, such measures as may be required to correct the condition causing such damage. If the use of the Improvements, or the discharge into the Pond from the Improvements has caused or contributed to any material damage of the Pond, or the Trust Property, Developers shall take such action as may be necessary to bring the Trust Property and the Pond substantially back to their original condition prior to the damage, or to compensate the Trust, its successors or assigns for such damages. The provisions of this paragraph 18 shall be specifically enforceable by the Trust without the necessity of demonstrating an adequate remedy at law exists and damage to the Trust's real property shall be presumed to be irreparable harm. In connection with any such action, the Trust shall not be required to post a surety bond.

 

19.            Attorneys' Fees. In the event of any litigation, arbitration, or other proceeding brought to enforce or interpret this Agreement, the prevailing party shall receive an award of its reasonable attorneys' fees and costs.

 

20.            Paragraph Headings. Paragraph headings are included for reference purposes only and do not constitute part of this Agreement.

 

21.            Governing Law. This Agreement shall be governed and construed under the laws of the State of Colorado without regard to conflicts of law provisions.

 


22.            Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

 

23.            Notices. All notices, demands, or other communications to any party under this Agreement shall be in writing (including facsimile transmission); shall be sent only by facsimile (with confirmation by United States Mail), by nationally recognized courier service, or by personal delivery; and shall be given:

 

If to the Trust, to:

 

 

 

 

If to DEF, to:

 

 

 

 

If to ABC, to:

 

 

 

 

All such notices, demands, requests, or other communications shall be deemed received on the date of receipt by the recipient if received prior to 5:00 p.m. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, demand, request, or other communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. Addresses for notice may be changed from time to time by notice to the other party.

 

24.            Waiver. Waiver by either party of any one default will not be deemed to be a waiver of any other default under this Agreement. Any remedy or election under this Agreement will not be deemed exclusive, but, instead, whenever legally permissible, will be cumulative with all other remedies at law or in equity.

 

25.            Construction. The rule of strict construction does not apply to this Agreement. This Agreement shall be given a reasonable construction so that the intention of the parties can be carried out.

 

26.            Exhibits. The parties acknowledge and agree that each of the Exhibits attached to this Agreement form an integral part of this Agreement and by this reference are incorporated herein as if set forth in full verbatim.

 


27.            Joint and Several. All obligations of DEF and ABC under this Agreement shall be joint and several obligations.

 

28.            Expenses of the Trust. Developers shall pay to the Trust upon execution of this Agreement the Trust's reasonable fees of its legal counsel in an amount not to exceed $7,500.00, and shall pay to the Trust any fees or charges of its engineer to the extent not already paid directly by Developers.

 

 

SIGNATURE BLOCKS

 

ACKNOWLEDGMENTS

 


EXHIBIT A

 

Development Property


EXHIBIT B

 

Easement Property