FMIC Grant of Easement Agreement
GRANT OF EASEMENT
This Grant of Easement is entered into this day of , 201_, between Fountain Mutual Irrigation Company, a Colorado mutual ditch company whose address is P.O. Box 75292, Colorado Springs, CO 80970-5292 (“FMIC”), and _________________ whose address is _____________________ (“Grantee”).
A FMIC is the owner of the real property described in Exhibit A (FMIC’s Property).
B. The Grantee desires to acquire an easement across FMIC’s Property for purposes of a water line utility and FMIC is willing to grant such easement upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Grant of Utility Easement. The Grantee is planning to construct a water line utility that will cross a portion of FMIC’s Property. FMIC grants and conveys to the Grantee a perpetual nonexclusive easement over and across FMIC’s Property, the description, location and dimensions of the easement being set forth in Exhibits B attached hereto (Easement). A sketch depicting the location of the Easement is attached hereto as Exhibit C and incorporation by this reference.
2. Purpose of Easements. The Easement granted to the Grantee shall be only for the purposes of construction, replacement, improvement, repair, maintenance and operation of an underground water distribution pipeline and appurtenances, together with the right of ingress and egress upon said Easement.
3. Uses by Grantor. FMIC shall not interfere with the use and enjoyment of the Easement by Grantee as expressly granted herein. No improvements shall be placed or constructed on or within said Easement by FMIC which materially interferes with Grantee’s permitted use of the Easement. Any other utilities placed within the Easement (i.e., natural gas, telephone, cable, etc.) shall only be placed with Grantee’s prior written consent, which consent shall not be unreasonably withheld or delayed, so that such other utilities shall not be located on top of Grantee’s utility facilities or so close thereto as to interfere with or impair Grantee’s access, construction, replacement and maintenance of the utility facilities within said Easements.
4. Uses by Grantees. Grantee shall not interfere with the paramount and primary use of FMIC’s Property for purposes of the existence and operation of an irrigation ditch for the transportation of water for the benefit of FMIC’s shareholders. If the Grantee disturbs the surface of the Easement for construction, maintenance, or operation of its facilities, it shall restore the surface to the pre-disturbance condition to the reasonable satisfaction of FMIC. FMIC may remove any unpermitted improvements that interfere with FMIC=s use and enjoyment of the FMIC Property.
5. Nature of Work. All work performed and to be performed by Grantee for the Easement shall be made using quality materials and shall be performed in a workmanlike manner in compliance with the requirements of FMIC. The construction requirements shall be guided, in general, and without limitation, by generally accepted construction and engineering practices in light of the specific circumstances of the FMIC Ditch. Compliance with such specifications and requirements shall be determined in the reasonable discretion of FMIC.
6. Open Ditch System. Grantee acknowledges that a historical open ditch system has existed across the FMIC Property and may continue to exist. Grantee assumes and holds FMIC harmless for the inherent risks of an open ditch upon the FMIC Property.
7. Reimbursement of Fees. Grantee shall reimburse FMIC its reasonable attorney’s fees and reasonable engineering fees incurred by the FMIC in entering into and performing this Agreement.
8. Ditch Seepage. The FMIC Ditch is a permanent lawful structure properly constructed in the ordinary and usual manner for irrigation ditches and has been in continuous operation for over 100 years for the purpose of conveying water to its shareholder for the irrigation of lands and other lawful purposes authorized by its decrees. The Grantee acknowledges that as a natural phenomenon all ditches must of necessity seep water along their route, as the FMIC Ditch has done, due to the character of the land through which the ditch passes and simply as a necessary result of the historical operations of the ditch. FMIC shall not be liable to Grantee as a result of ditch seepage from the FMIC Ditch as long as (1) FMIC continues to properly maintain and operate the FMIC Ditch in accordance with the requirements of Colorado law as guided by statutory requirements as interpreted and applied in light of historical operations of the ditch, or (2) such seepage is in accordance with the long standing historical operations of the ditch. FMIC shall have no obligation to line or encase the FMIC Ditch to prevent seepage. The above protections to FMIC for seepage claims from the FMIC Ditch shall not be diminished or impaired by FMIC cooperating with Grantee for any relocation of a portion of the FMIC Ditch. As a result, seepage from the FMIC Ditch operated as set forth above shall have the same protections as if the FMIC Ditch had always historically existed at the actual location.
9. Authority. All parties to this Agreement represent that they have the full power and authority to enter into and perform this Agreement, and to bind their principals.
10. Binding Effect. The covenants, agreements, and obligations contained herein shall extend to, bind, and inure to the benefit of the parties hereto, as well as their respective personal representatives, heirs, successors, and assigns.
FOUNTAIN MUTUAL IRRIGATION
COMPANY, a Colorado mutual ditch company
Michael R. Thibault, President Date
Fountain Mutual Irrigation Company,
A Colorado Mutual Ditch Company
Title: Fountain Mutual Irrigation Company President
STATE OF COLORADO )
COUNTY OF EL PASO )
The foregoing instrument was acknowledged before me this day of
, 201_, by Michael R. Thibault as President of Fountain Mutual Irrigation Company.
Witness my hand and official seal.
My Commission expires:_______________
GRANT OF EASEMENT ACCEPTED:
STATE OF COLORADO )
COUNTY OF EL PASO )
The foregoing instrument was acknowledged before this
by , as ,
of , this day of , 201_.
My Commission Expires: __________________________
Grant of Easement ________________________
FMIC Property __________________________
That tract of land described in that instrument recorded under Reception Number_________ of the records of El Paso County, Colorado.
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INTERNET FILES\OLK80\FMIC GRANT OF EASEMENT 09-09-11.DOC