Meeting Date: September 27, 2016 COUNCIL COMMUNICATION Agenda Item: Agenda Location: Consent Calendar Work Plan # Legal Review: 1 st Reading 2 nd Reading Subject: A resolution granting a ditch easement within right-of-way located within the Cherrylane Subdivision, Clermont Street and East 95 th Drive; and a portion of adjacent right-of-way of Thornton Parkway. Recommended by: Jeff Coder Approved by: Jack Ethredge Ordinance previously introduced by: Presenter(s): Grant Penland, Current Planning Manager SYNOPSIS: HWL Cherrylane, LLC (the Applicant) is requesting that the City of Thornton grant a ditch easement which would be located over the City-owned Right-of-way (ROW) adjacent to and within the Cherrylane Subdivision. Currently, the Cherrylane property is being developed for residential units and it was necessary to relocate and underground, pipe the Lower Clear Creek Ditch to facilitate the development of the subdivision. The City has approved the development of the subdivision and HWL Cherrylane, LLC (the Developer) has executed a license agreement with the Ditch Company and the City to relocate and realign, pipe the ditch. The work to underground the ditch is complete. To complete the relocation of the ditch the City needs to grant an easement to the Lower Clear Creek Ditch Company for the portion of the ditch that is piped and flows underneath City streets within and adjacent to the subdivision. The Developer of the Cherrylane property will be responsible for constructing, operating, maintaining, replacing, inspecting etc., the piped ditch identified in the attached easement documents for two years consistent with the Lower Clear Creek Ditch Company License Agreement. The two year warranty period commences on the date of the Ditch s Company s acceptance of the installation. Upon expiration of the warranty period Thornton shall assume and be responsible for the maintenance, repair and replacement as specifies in the Lower Clear Creek Ditch Company license Agreement recorded within the records of the Adams County Colorado Clerk and Recorders office, document reception # 2015000037609. RECOMMENDATION: Staff recommends Alternative No. 1, to grant the easement on City-owned ROW within and adjacent to the Cherrylane Subdivision. BUDGET/STAFF IMPLICATIONS: None. ALTERNATIVES: 1. Approve the ditch easement. 2. Deny the approval of the ditch easement.
COUNCIL COMMUNICATION PAGE 2 BACKGROUND (ANALYSIS/NEXT STEPS/HISTORY): The property was subdivided with recordation of the subdivision on April 9, 2014. The Cherrylane Planned Development (PD), including ODP/CSP and PD Standards, rezoning was approved on December 21, 2010 to allow for a single-family residential development. The Owner entered into an Agreement with the Lower Clear Creek Ditch Company to relocate and realign the ditch in May 12, 2015. The Owner assigned the right, title and interest in the Agreement to LGI Homes Colorado, LLC on July 2, 2015. The Lower Clear Creek Company accepted the undergrounding installation on March 15, 2016.
R E S O L U T I O N A RESOLUTION GRANTING A DITCH EASEMENT WITHIN RIGHT-OF-WAY LOCATED WITHIN THE CHERRYLANE SUBDIVISION, CLERMONT STREET AND EAST 95 TH DRIVE; AND A PORTION OF ADJACENT RIGHT-OF-WAY OF THORNTON PARKWAY. WHEREAS, HWL Cherrylane, LLC, a Colorado limited liability company ( Developer ), is developing the property contained in the Cherrylane Subdivision; and WHEREAS, the Developer desires a ditch easement from the City to facilitate that development; and WHEREAS, the City of Thornton desires to grant a ditch easement to the Developer, as described in Exhibit 1, which is attached hereto and incorporated herein by this reference ( Grant of Ditch Easement ); and WHEREAS, staff has reviewed the proposed ditch easement and has determined that the public health, safety, and welfare is not diminished by such request. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THORNTON, COLORADO, AS FOLLOWS: 1. The City Council hereby authorizes the attached Grant of Ditch Easement. 2. The City Council hereby delegates the authority to the City Manager to execute the Grant of Ditch Easement. 3. The City Clerk is directed to attest and to acknowledge and record this Grant of Ditch Easement. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Thornton, Colorado, on, 2016. CITY OF THORNTON, COLORADO ATTEST: Heidi K. Williams, Mayor Nancy A. Vincent, City Clerk
Exhibit 1 GRANT OF DITCH EASEMENT THIS GRANT OF DITCH EASEMENT ("GRANT") is made this day of, 2016, between the City of Thornton, a municipal corporation, whose address is 9500 Civic Center Drive, Thornton, CO 80229 ("Grantor/City"), and the Lower Clear Creek Ditch Company, a Colorado mutual ditch company, whose address is P.O. Box 701, Eastlake, CO 80614-0701 ( Grantee ). Grantor and Grantee may be collectively referred to herein as ( Parties ). WITNESSETH: WHEREAS, Grantor is the owner of the certain real property used as Right of Way for the following streets, 95 th Drive and Thornton Parkway, and WHEREAS, the Grantee owns and reserves all historical and reasonably necessary ditch rights to the real property over which traverses the Lower Clear Creek Ditch ( Ditch ) for the purpose of exercising its water rights and conveying water for beneficial use by its shareholders and other lawful users of the Ditch; and WHEREAS, in connection with the Cherry Lane Subdivision residential development project, hereafter (the Cherry Lane Subdivision ), in order to better serve the Cherry Lane Subdivision, the City has required the developer of the Cherry Lane Subdivision, HWL Cherry Lane LLC, (hereafter "Developer"), to modify the historical path of the Ditch by relocating the Ditch through a realignment and to pipe portions of the Ditch; and WHEREAS, the Developer has agreed to such obligation for relocation, by realignment, of the Ditch and piping of the Ditch through execution of that certain Lower Clear Creek Ditch Company License Agreement between the Developer, the Grantor herein and the Grantee recorded in the Adams County real property records on May 20, 2015, at reception number 2015000037609 ("License Agreement"); and WHEREAS, to effectuate relocation of the Ditch for the Cherry Lane Subdivision, the License Agreement requires the Grantor/City to grant an easement to the Grantee for that portion of the Ditch that is piped and flows underneath and crosses City streets, specifically the aforementioned 95 th Drive and Thornton Parkway, which impacted streets are more particularly described as set forth in Exhibit A, attached hereto and incorporated herein by this reference. NOW THEREFORE, in consideration of the Grantor's desire to facilitate the Cherry Lane Subdivision and in consideration of the terms and conditions contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Grantor does hereby grant, bargain, sell, convey and confirm unto Grantee, Grantee s successors and assigns forever, and pursuant to the License Agreement, a permanent non-exclusive easement for the purpose of constructing, operating, maintaining, replacing, repairing, improving, inspecting, surveying, testing, removing, and restoring, at any time and from time to time, an underground pipe, and all underground and surface improvements and appurtenances ( Easement Improvements ) in, over, under, and through all of the Grantor s property, as described in Exhibit A, for the purpose of exercising Grantee's water rights and conveying water for beneficial use by Grantee's shareholders and other lawful users of the Lower Clear Creek Ditch under the property described in Exhibit A, which, together with the location of the Easement Improvements, is referenced herein as (the "Ditch Easement"). 2. The Grantor further grants to the Grantee the right to perform its rights and obligations under the License Agreement, including but not limited to: (a) (b) (c) The right from time to time to improve, reconstruct, relocate, repair and replace any Easement Improvements or other associated appurtenances constructed or placed within the Ditch Easement; The right to mark the location of the Ditch Easement and the Easement Improvements by suitable markers set in or on the ground; provided that permanent markers shall be placed in locations which will not interfere with any reasonable use Grantor shall make of Grantor s land crossed by the Ditch Easement; The right to ingress and egress over or across Grantor s property for the purpose of exercising the rights herein granted. 3. Grantor reserves the right to use and occupy Grantor s land crossed by the Ditch Easement for any purpose consistent with the rights and privileges above granted and which will not interfere with or endanger any of the Grantee's Easement Improvements or otherwise interfere with Grantee's rights hereunder; and Grantor further agrees that Grantor s uses of said land crossed by the Ditch Easement and the agreements concerning those uses shall be as follows: (a) Grantor shall not erect or construct any building or other structure, drill or operate any well, or construct any permanent obstruction which will interfere with Grantee's piped underground use, or allow the installation of other utilities in or across said Ditch Easement without obtaining the specific written permission of the Grantee; 2
(b) Grantor shall take no action which would impair or in any way decrease or substantially increase the ground level, or the lateral or subjacent support for the aforementioned underground pipe, and/or Easement Improvements within the Ditch Easement without obtaining the specific written permission of the Grantee. (c) The Grantor may use Grantor's land crossed by the Ditch Easement for any and all lawful purposes not inconsistent with the purposes set forth in this Grant, including but not limited to, setbacks, density, open space, landscaping, roadways, and parking, so long as such uses are in compliance with the License Agreement and do not interfere with the continued use, maintenance, repair, and replacement of or cause damage to the Ditch Easement or the Easement Improvements constructed within the Ditch Easement. (d) Grantor acknowledges and agrees that the Grantee specifically reserves all historical and reasonably necessary rights in the land over which traverses the Ditch. 4. The Parties hereto recognize that the License Agreement shall survive the delivery of this Grant of Ditch Easement and agree that the License Agreement and all obligations contained therein shall not be defeated by the doctrine of merger. The Parties hereto agree that, other than the License Agreement, neither has made or authorized any agreement with respect to the subject matter of this Grant other than expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party, or its agents or employees, hereto. 5. The Parties hereto agree that this Grant shall attach to and run with the land described in Exhibit A and the terms and conditions contained herein shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns. 6. The rights granted herein shall be possessed by the Grantee, its successors and assigns, so long as the Easement Improvements are maintained, repaired, and replaced in accordance with the License Agreement. If the Easement Improvements are abandoned as described in the License Agreement, the Parties' rights and obligations shall be defined as set forth in the License Agreement. 7. The signatories hereto warrant that they have full authority to make and enter into this Grant hereinabove contained. IN WITNESS WHEREOF, the undersigned have set their hands hereto on the day and year above first written. 3
GRANTOR CITY OF THORNTON, COLORADO ATTEST: Jack Ethredge, City Manager Nancy Vincent, City Clerk APPROVED AS TO FORM: Gary G. Jacobson, Interim City Attorney GRANTEE LOWER CLEAR CREEK DITCH COMPANY ATTEST: John Orr, President Matt Stockton, Secretary 4