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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/18/2009 - RESOLUTION 2009-081 AUTHORIZING THE ACQUISITION OF ITEM NUMBER: 20 AGENDA ITEM SUMMARY DATE: August 18, 2009 FORT COLLINS CITY COUNCIL STAFF: John Stokes SUBJECT Resolution 2009-081 Authorizing the Acquisition of Certain Lands for Water Storage and Natural Area. RECOMMENDATION Staff recommends adoption of the Resolution. FINANCIAL IMPACT Funding for the proposed $5.8 million acquisition will be derived from two sources: $5.5 million from Water Utility capital funds that has been appropriated specifically for the development of gravel pit water storage;and$300,000 from the Natural Areas fund. The$300,000 from the Natural Areas fund was previously appropriated for the purpose of land conservation. Future expenses associated with the acquisition will include operational costs associated with reservoir operation and maintenance and restoration of dry land surrounding the reservoir. Reservoir operations will be undertaken by the Utilities department and are expected to be in the range of$10,000 to $20,000 annually. The Natural Areas program will conduct initial restoration of the approximately 50 acres of dry land which is expected to cost in the neighborhood of$150,000 to $200,000. Maintenance of this land will be folded into the Natural Area Program's annual operating budget and is expected to cost approximately $10,000 to $15,000 annually. EXECUTIVE SUMMARY Over the last several months, staff has negotiated the acquisition of 128 acres of land and reservoir storage near the southwest corner of Harmony and I-25 for a price of$5.8 million. The land is owned by Stoner and Company ("Stoner") and is part of the Riverwalk project—a development proposed for the area by Mr. Jay Stoner. The City wishes to acquire the 128 acres for the primary purpose of water storage. About 80 acres of the 128 acres will be used for storing approximately 1,500 to 2,000 acre feet of water. The property currently has approximately 800 acre feet of water storage capacity. Under the terms of the City's arrangement with Stoner,.Stoner will remove an additional 700 to 1,200 acre feet of material from the site to create additional storage capacity prior to closing the transaction. August 18, 2009 -2- Item No. 20 A secondary purpose of the acquisition will be to conserve an open space amenity along I-25 near the Harmony intersection. Dry land around the reservoir will be restored and managed by the Natural Areas Program to enhance habitat and recreational opportunities. The agreement with Stoner calls for the City and Stoner to work closely together on the design of the reservoir to achieve the primary objective of water storage, while simultaneously building an amenity that is as aesthetically pleasing as possible. BACKGROUND City staff originally began working with Stoner on a potential acquisition of the 128 acres in 2008. Negotiations were suspended when it appeared that the property might be annexed to Timnath. However, once the Timnath and Fort Collins GMA issues were resolved and the land in question was clearly going to be within Fort Collins' GMA, negotiations with Stoner recommenced. The site is attractive to the City because it works well for certain water management responsibilities (see below); it also augments the City's efforts to help conserve lands on the I-25 corridor that lie between major intersections. In this case, the 128 acres adjoins a City-owned natural area to the south, Eagle View. To the north of Harmony lies Arapaho Bend Natural Area. In the future,these properties are planned to be linked by trail. A need for water storage capacity below the City's water reclamation facilities has been recognized for a number of years. The purpose of the storage capacity primarily is to help the City meet certain water management objectives and obligations related to the storage and release of the City's reusable effluent as prescribed by City water rights decrees,and potentially to help enhance flows in the river through Fort Collins. The proposed acquisition is advantageously located below the City's Drake Water Reclamation Facility (DWRF) and its primary function would be to help manage water supplies and reusable effluent in the vicinity of DWRF. The $5.8 million cost of the land and water storage is allocated between the Utilities and Natural Area funds at $5.5 million and $300,000 respectively. The price for the property was determined primarily by the value attributable to water storage which is calculated to be $2,750 an acre foot. The City has contracted with Mr. Stoner for a storage reservoir capable of holding at least 1,500 acre feet of water and up to 2,000 acre feet. At 2,000 acre feet,the total water storage component of the acquisition price would be $5.5 million. If, for some reason, the total certified storage is less than 2,000 acre feet, the City will pay proportionately less money. For example, if the certified storage only amounts to 1,500 acre feet, then the City would pay $4,125,000 for water storage plus the $300,000 for the remaining dry land for a total price of$4,425,000. Staff believes that the price for the storage and the land makes good business sense. If,for example, the City were to acquire this property in its current condition, it would likely cost the City substantially more than$5.8 million to both acquire and build the additional water storage capacity. r August 18, 2009 -3- Item No. 20 Stoner will benefit from the arrangement with the City in two ways: first, from the proceeds of the sale itself, and secondly, because the company will be able to use excavated material from the site to help fill ponds and gravel pits on the property to the north. This will make the property more readily developable and/or marketable. ATTACHMENTS 1. Location map all 14 Harmony Road Attachment 1 - Parcel Location Map Water Storage and Natural Area Acquisition VOW ff.- t , Y e i rf lot' lrt'Ili�� ,G + " t iw Ml r,. Frt Collins Legend Parcel boundary °. �0 330 660 1 ,320 Feet ._ _ Kechter Road RESOLUTION 2009-081 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE ACQUISITION OF CERTAIN LANDS FOR WATER STORAGE AND NATURAL AREA WHEREAS,Stoner and Company("Stoner")is the owner of approximately 128 acres of land located at 4308 East County Road 36,Fort Collins,Larimer County, Colorado,as more particularly described on Exhibit "A", attached and incorporated herein by reference (the "Property"); and WHEREAS, the City wishes to purchase the Property for the primary purpose of gravel pit water storage and also to preserve an open space amenity along the Interstate 25 corridor; and WHEREAS, the City and Stoner entered into an Agreement of Purchase and Sale of Real Property dated July 30,2009(the"Agreement"),for purchase of the Property,contingent on Council approval of the purchase by this Resolution; and WHEREAS, a copy of the Agreement is on file in the office of the City Clerk; and WHEREAS, the Property currently has approximately 800 acre feet of water storage; and WHEREAS, under the terms of the Agreement, Stoner would increase the;water storage on the Property to 1,500 to 2,000 acre feet in accordance with specifications to be provided by the City, and upon satisfactory completion of the work the City would purchase the Property for$5.8 million; and WHEREAS, the cost of the Property would be divided between the Utilities and Natural Areas funds with Utilities paying $5.5 million of the purchase price'and Natural Areas paying the remaining $300,000; and WHEREAS,the funds necessary for acquisition of the Property have been appropriated and are available for expenditure for that purpose; and WHEREAS, based on an evaluation of the market value of the Property and the existing water storage, and of the cost to construct additional storage on the Property, City staff believes the proposed price for the Property is fair and reasonable, and recommends that the City Council approve the proposed acquisition; and WHEREAS, the Council has determined that the purchase price is fair and reasonable and that the acquisition of the Property is in the best interests of the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the City Council hereby approves the acquisition of the Property, consisting of approximately 128 acres of land as described on Exhibit "A", for an amount not to exceed.$5.8 million,in accordance with the terms and conditions contained in the Agreement,together with such additional terms and conditions as the City Manager, in consultation with the City Attorney, deems necessary and appropriate to protect the interests of the City or to effectuate the purposes of this Resolution, including, but not limited to, any necessary changes to the legal description of the Property, so long as such changes do not materially increase the size or change the character of the Property. Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 18th day of August A.D. 2009. Mayor ATTEST: City Clerk EXHIBIT A Legal Description PARCEL A A PARCEL OF LAND SITUATE IN THE SOUTHWEST QUARTER OF SECTION 3, TOWNSHIP 6 NORTH, RANGE 68 WEST OF THE 6TH P.M.; COUNTY OF LARIMER, STATE OF COLORADO; BEING THE SAME TRACT OF LAND AS DESCRIBED IN THE WARRANTY DEED RECORDED AUGUST 29, 2005 AT RECEPTION NO. 2005- 0072387: AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 3, AND CONSIDERING THE WEST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 3 TO HAVE AN ASSUMED BEARING OF N 01044'18" W (NORTH END OF SAID LINE BEING MARKED BY AN ILLEGIBLE 3-1/4" ALUMINUM CAP IN MONUMENT BOX, AND SOUTH END OF SAID LINE BEING MARKED BY A 2-1/2" ALUMINUM CAP STAMPED LS 33193 IN MONUMENT BOX), WITH ALL OTHER BEARINGS RELATIVE THERETO; THENCE S 87052'12" E, 2,388.22 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF INTERSTATE 25; THENCE ALONG SAID RIGHT OF WAY LINE THE FOLLOWING FOUR(4) COURSES: 1. S 02002'35" E, 2,339.03 FEET; 2. 135.78 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE RIGHT, HAVING A RADIUS OF 11,295.00 FEET, A CENTRAL ANGLE OF 00041'19", AND A CHORD WHICH BEARS S O1043'14" E, ,135.77 FEET; 3. THENCE S 84055'54" W, 574.56 FEET; 4. THENCE S 00055'24" W, 30.00 FEET TO A POINT ON THE SOUTH LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 3; THENCE ALONG SAID SOUTH LINE,N 89004'36" W, 1,274.18 FEET; THENCE N 090 16'32" W, 324.41 FEET; THENCE N 01046'32" W, 289.41 FEET; THENCE N 32046'32" W, 144.50 FEET; THENCE N 23039'02" W, 631.96 FEET; THENCE N 01050'02" E, 208.47 FEET; THENCE N 170 13'48" W, 746.06 FEET; THENCE N 46009'32" W, 10.66 FEET TO A POINT ON THE WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 3; THENCE ALONG SAID WEST LINE,N O1049'14" W, 384.29 FEET TO THE POINT OF BEGINNING. Form : City as Purchaser City Final 7-28-09 AGREEMENT OF PURCHASE AND SALE OF REAL PROPERTY [ City Purchase of Property at 4308 E . County Road 36 , Fort Collins THIS AGREEMENT is made and entered into this ` D day of July, 2009 (the "Effective Date" '), by and between STONER AND COMPANY, a Colorado corporation ("Seller" ) , and THE CITY OF FORT COLLINS , COLORADO, a municipal corporation, ("Purchaser") . For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Purchaser agree to be legally bound whereby Seller agrees to convey to Purchaser, and Purchaser agrees to acquire from Seller, the Property as defined below on the terms and conditions set forth in this Agreement . 1 . Description of Property. The real property which is the subject matter of this Agreement is that certain parcel of real property located in Larimer County, Colorado, which is legally described on Exhibit A , consisting of one page, attached hereto and incorporated herein by reference (the "Property") . The Property includes all improvements located thereon and all of Seller' s rights, title and interest in and to all appurtenances thereto, including but not limited to the following: A . Appurtenances Generally. The Property shall include any fences, landscaping, and other improvements now located thereon, including all fixtures of a permanent nature, but not including the house, any outbuildings and related improvements located at the south end of the Property, which Seller must remove entirely, as well as leveling and reseeding the underlying land prior to closing. In addition, the Property shall include all of the Seller' s right, title and interest in and to easements, rights-of-way, future interests and rights to the same belonging and inuring to the benefit of the Property, and in and to all strips and gores of land lying between the Property and adjoining property or streets, roads or highways, open or proposed . B . Water Rigbts . Seller is not transferring any water rights with the Property. C . Taps . All water taps, gas taps, and sewer taps belonging or in any way appertaining to the Property. D . Mineral Rights . Any and all interests in all minerals, ores, and metals of any kind and character, and all coal , asphaltum , oil , gas, or other like substances including sand and gravel , and all geothermal resources in, on, or under the Property and all other mineral rights as are owned by Seller at the time of this Agreement . All mineral rights appurtenant to the Property must be assigned at closing. All mineral leases, to the extent they burden RET Fonn Version 3 '16. 07 the Property, must be terminated, all required reclamation work completed , and all mining permits successfully closed out prior to closing. E . Water Storage. Seller represents that the Property presently includes approximately 800 acre-feet of water storage capacity. Prior to closing . Seller will construct, at Seller' s sole expense, additional water storage sufficient to increase the total certified storage capacity on the Property as described in Paragraph 33 , below . 2 . Method of Conveyance. Seller will convey the Property to Purchaser at the tune of closing by general warranty deed in the form attached as Exhibit B. The personal property portion of the Property, if any, shall be transferred to Purchaser by Seller at the time of closing by bill of sale or other appropriate transfer document, free and clear of all liens and encumbrances . 3 . Purchase Price. The total purchase price of the Property after successful completion of the additional water storage required in Paragraph 33 will be FIVE MILLION EIGHT HUNDRED THOUSAND Dollars ($ 5 , 800, 000 . 00) and will be payable by Purchaser to Seller as follows : A . The sum of ONE HUNDRED THOUSAND DOLLARS ($ 100, 000 . 00), representing a refundable earnest money deposit, will be paid by Purchaser upon the Effective Date by check or immediately available funds to the Title Company as part payment to Seller. The earnest money deposit will be refunded to Purchaser upon any termination of this Agreement, except in the event of default by Purchaser. B . The balance of the purchase price in the amount of FIVE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($ 5 ,700,000 . 00) subject to closing costs and customary prorations is payable by Purchaser in invnediately available funds to the Title Company at the time of closing. 4. Title Insurance/Evidence of Title . A . Purchaser has already obtained a Title Insurance Commitment, together with copies of all documents of record related to exceptions identified in the Title Commitment (together referred to as the "Title Commitment") from Land Title Guarantee Company ("Title Company") . The Title Commitment must show title to the Property in Seller, subject only to those exceptions shown on Schedule B -2 to the Title Commitment that are acceptable to Purchaser. Seller is responsible for the cost of the Title Commitment and Title Insurance . B . If the Title Commitment discloses title defects unsatisfactory to Purchaser RET Forrn Version 3 16 07 - 2 - and subject to which Purchaser heed not take title, Purchaser may give Seller written notice of such defects by the date ten ( 10) calendar days after the Effective Date or the date ten ( 10) calendar days after Purchaser ' s receipt of the Title Cominitment, whichever is later, and no later than ten ( l 0) calendar days after notice of any title change. Seller must attempt in good faith to cure such defects prior to the date of closing, at its expense, without in any other manner affecting the terns of this Agreement . C . If any instrument or deposit is necessary in order to correct a defect in or objection to title, the following apply: ( 1 ) Any instrument will be in a form and contain terms and conditions Title Company may reasonably require so as to be sufficiently satisfied and omit such defects or objection. (2) Any deposit will be made with Title Company. (3 ) Seller agrees to execute, acknowledge and deliver any required instrument and to make any required deposit. D . If Title Company refuses to omit any title defect or objection prior to closing, then Purchaser, at its election, has the right to : ( 1 ) accept such title as Seller is able to convey, without any reduction of the purchase price; or (2 ) rescind this Agreement and , upon such rescission pursuant to this paragraph, Purchaser will be entitled to the return of the amount of money theretofore paid to Seller or its agent. Upon such payment, this Agreement will be null and void and of no further effect, and all parties to this Agreement will be released from all obligations hereunder. E . If Seller is unable to convey title as provided in this paragraph 4 to Purchaser due to an act or omission of Seller, Seller is in default and continues to be liable under this Agreement. F . Notwithstanding the foregoing, ( 1 ) any title condition consisting of monetary liens, deeds of trust or other financial encumbrances against the Property must be removed by Seller at or prior to closing, and Seller' s failure to cause the removal of the same will constitute a default by Seller under this Agreement; and RFT Form Version 3. 16 07 3 (2) in the event Seller fails to cause the removal of a financial encumbrance against the Property prior to closing, Purchaser has the right to pay amounts required to do so at closing, and to receive a credit for such payment against the Purchase Price. 5 . Survey/Legal Description. A . Within thirty (30) calendar days after the Effective Date, Seller, at its own expense, will provide to the Purchaser an updated, signed, and sealed ALTA/ACSM boundary survey ("Survey") . The Survey must include staked property congers and a plat describing courses and distances between the corners, and total acreage of the Property. Seller will provide Purchaser with an updated survey ("Updated Survey") after final completion of the water storage construction and no less than twenty (20) days prior to closing. B . If Purchaser is not satisfied with the matters disclosed by the Survey or Updated Survey, Purchaser may give written notice of the specific survey- related defects to Seller within ten ( 10) calendar days following the date of receipt of the Survey or Updated Survey. Seller may, by written notice within ten ( 10) calendar days of receipt of the defect notice, elect to cure the survey defects or not to cure them . C . Unless Seller elects to cure the survey defects, Purchaser may, by written notice at or before the closing : ( 1 ) expressly waive the survey defects and proceed to closing; (2 ) terminate this Agreement ; or ( 3 ) in its sole discretion, elect to cure the survey defects and apply a portion of the Purchase Price as is necessary to cause the removal of the survey defects, and the proceeds from this transaction to be otherwise distributed to Seller upon closing is reduced by that applied amount . D . If Seller elects to cure the survey defects, Seller may postpone the closing for a reasonable period of time not to exceed sixty (60) calendar days. Seller shall promptly provide written notice to Purchaser of any such required postponement of closing at the time of Seller' s election to cure pursuant to paragraph 5 . 13 . If, after making that election, the Seller is unable to cure within the time allowed, Purchaser will be entitled to proceed in accordance with the options stated in subparagraphs C( l ) RET Form Version 3 ! 6 07 - 4 - through C(3 ) above. E . Seller and Purchaser agree to update the legal description of the Property or any portion thereof to be conveyed hereunder as required to correct errors in the legal description identified by the Survey. b . Special Taxing Districts. Special taxing districts may be subject to general obligation indebtedness that is paid by revenues produced from annual tax levies on the taxable property within such districts . Property owners in such districts may be placed at risk for increased mill levies and excessive tax burdens to support the servicing of such debt where circumstances arise resulting in the inability of such a district to discharge such indebtedness without such an increase in mill levies. Purchaser should investigate the debt financing requirements of the authorized general obligation indebtedness of such districts, existing mill levies of such district servicing such indebtedness, and the potential for an increase in such mill levies . 7 . Maintenance of the Property/Title. With the exception of: ( 1 ) the removal of the house, outbuildings and related improvements as described in paragraph LA ; (2 ) construction of the additional water storage described in Paragraph 33 ; and (3 ) any reclamation work that is required to be completed on the Property in order to close out Colorado Division of Minerals and Geology mining and reclamation permit number M- 1995 -035 (the "Mining Permit"), Seller must keep, or cause to be kept, the Property in its condition as of the Effective Date until the closing of this transaction, subject to normal wear-and-tear and seasonal changes, and agrees not to commit or permit waste thereon . Seller must not cause or permit new liens, easements or other encumbrances on the title to the Property, except as expressly agreed by Purchaser in writing. 8 . Representations of Seller. Seller represents and warrants as of the Effective Date and as of the closing, as follows : A . There is no litigation proceeding, including but not limited to any eminent domain proceeding, pending (or to Seller' s knowledge threatened) against or relating to any part of the Property, nor does Seller know of or have reasonable grounds to know of any basis for any such action . B . Seller has not received notice of, and to the best of Seller' s knowledge, there are no violations of any laws, orders , regulations or requirements of any governmental authority affecting the Property or any part thereof CO Seller has the unconditional right and power to execute and deliver this Agreement and to consummate the transaction(s) contemplated by this Agreement . D . Seller has not received notice of default or breach by Seller of any of the covenants, conditions, restrictions , rights-of-way or easements affecting RET Form Veision 3 • 16 07 - 5 - the Property or any portion thereof; no default or breach now exists or will exist on the date of closing; and no event or condition has occurred and is continuing that, with or without notice and/or the passage of time, will constitute such a default or breach . E . Seller represents that it has provided to Purchaser all environmental reports and any other documentation in Seller' s possession related to the Property. 9 . Seller' s Environmental Representations . Seller represents and warrants as of the Effective Date and as of the closing, that, to the best of Seller' s knowledge, and except for the Mining Permit : A . the Property has never been used as a landfill , waste dump or mine; Be there has been no installation in, or production, release, disposal or storage on the Property of any hazardous material , hazardous waste or other toxic or regulated substances by Seller, Seller' s agents, employees, or assigns, any tenant or previous owner or previous tenant ; C . there has not been. any other activity that is known to or reasonably could have resulted in an environmental condition requiring investigation or remediation on the Property; D . there is no anticipated, threatened or pending proceeding or inquiry by any govenmrne:ntal authority or agency with respect thereto ; E . no property in the vicinity of the Property has ever been used as a landfill or waste dump ; F . there has been no installation in, or production , release, disposal or storage in the vicinity of the Property of any hazardous material , hazardous waste or other toxic or regulated substances by any owner, tenant or previous owner or previous tenant or any other activity which could have resulted in an environmental condition requiring investigation or remediation on the Property; and G . there is no anticipated , threatened , or pending proceeding or inquiry by any governmental authority or agency with respect to property in the vicinity of the Property that may relate to the condition of or need to take investigative or remedial action on the Property. 10 , Inspection . RET Form Version 3 16 07 - 6 A . Purchaser or any designee of Purchaser has the right to make initial inspections of the physical condition of the Property and the improvements located thereon at Purchaser's expense. These inspections may include, but are not limited to , environmental assessments and inspections regarding compliance with any building or fire code, environmental protection, pollution or land use or zoning laws, rules or regulations, including, but not limited to any laws relating to the disposal or existence of any hazardous substance or other regulated substance in or on the Property. If Purchaser does not provide to Seller written notice of any unsatisfactory condition, as determined at Purchaser's sole discretion from Purchaser' s initial inspections, signed by an authorized representative of Purchaser, on or before October 1 , 2009, Purchaser waives any objection to the physical condition of the Property and the improvements located thereon as of that date, subject to Purchaser' s rights under subsection B below. If Purchaser provides written notice of any unsatisfactory condition, signed by an authorized representative of Purchaser, to Seller on or before October 1 , 2009 , and Seller does not cure such conditions prior to closing, this Agreement may be terminated at the option of Purchaser. Upon such tennination, all payments and things of value paid hereunder by Purchaser must be returned to Purchaser. B . Purchaser reserves the rights to update or repeat any of the physical inspections described in subsection A after Seller completes construction of the additional water storage on the Property and prior to closing. If Purchaser does not provide to Seller written notice of any unsatisfactory condition, as detennined at Purchaser's sole discretion from Purchaser' s follow-up inspections, signed by an authorized representative of Purchaser and delivered to Seller no less than five (5) days prior to closing, then Purchaser waives any objection to the physical condition of the Property and the improvements located thereon . If Purchaser provides written notice of any unsatisfactory condition , signed by an authorized representative of Purchaser, to Seller, no less than five ( 5 ) days prior to closing, and Seller does not cure such conditions prior to closing, this Agreement may be tenninated at the option of Purchaser. Upon such termination, all payments and things of value paid hereunder by Purchaser must be returned to Purchaser. C . Purchaser is responsible and will pay for any damage that occurs to the Property and the improvernents located thereon as a result of these inspections . 11 . Closin . The parties agree to close this transaction as described in Paragraph 33 , below, at Land Title Guarantee Company, 772 Whalers Way, Fort Collins, Colorado , or at such other reasonable time, date or location as the parties may mutually agree. Except as the parties RG]' Ponn Version 316•07 - 7 - otherwise agree, this Agreement shall automatically terminate and be of no further force and effect, and all things of value paid by Purchaser shall be returned to Purchaser, if the conveyance of the Property has not been completed as of June 30, 2011 . 12 . Possession. Seller will deliver possession of the Property to Purchaser at closing. 13 . Proration . Real property taxes and assessments and similar expenses, in accordance with local practice, will be prorated as of the date of closing. 14. Remedies on Default. If any note or check received as earnest money hereunder or any other payment due hereunder is not paid, honored or tendered when due, or if any other obligation hereunder is not performed as herein provided , the remedies are : A . If Purchaser is in default, then the earnest money deposit, if any, is forfeited by Purchaser and may be retained by Seller, and both parties will be released from all obligations under this Agreement. It is agreed that the earnest money deposit is liquidated damages and is Seller' s sole and only remedy for Purchaser' s failure to perform the obligations of this Agreement . Seller may recover direct damages as may be proper and Seller expressly waives the remedies of specific perfonnance and additional damages . B . If Seller is in default, Purchaser may elect to treat this Agreement as terminated , in which case all payments and things of value paid by Purchaser hereunder will be returned to Purchaser, and Purchaser may recover such damages as may be proper, or Purchaser may elect to treat this Agreement as being in full force and effect, and Purchaser will have the right to an action for specific performance or damages, or both . 15 . Notices . Any notice or other communication given by either party to the other relating to this Agreement must be hand delivered; sent by a commercial carrier; or sent by mail , addressed to the party at its respective address as set forth below . The notice or other communication will be effective on the date it is delivered or on the third business day after being sent, whichever comes first . If to Seller: Stoner and Company c/o Jay D . Stoner 605 S . College Ave. Fort Collins, CO 80524-3003 If to Purchaser : Real Estate Services Manager City of Fort Collins RET Form Vusion 3. 16 07 8 ' Mailing Address : P . O . Box 580 Fort Collins, CO 80522 - 0580 Hand Delivery . Operations Services 300 LaPorte Ave. Fort Collins, CO 80524 With a copy to : City Attorney' s Office City of Fort Collins Mailing Address : P . O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery : 300 LaPorte Avenue Fort Collins, CO 80521 16 . Assi vnent. This Agreement must not be assigned by either of the parties hereto without the prior written consent of the other party. 17 . Risk of Loss . Seller shall bear all risk of loss with respect to the Property up to the date title is transferred in accordance with this Agreement . In the event of damage to any portion of the Property by Fire or other casualty prior to the closing which damage either affects 5 % of the usable facilities on the Property or reduces the value of the Property by 5 % , then this Agreement may be terminated at the option of Purchaser. This option shall be exercised , if at all , by Purchaser' s written notice thereof to Seller within thirty (30) calendar days after receipt of written notice of such fire or other casualty. Upon the exercise of such option to terminate, this Agreement shall become null and void, and neither party shall have any further liability or obligations hereunder, except as otherwise provided in this Agreement . Closing may be delayed for up to thirty (30) calendar days for Purchaser to decide whether to exercise this option . if Purchaser does not elect to terminate, Seller shall assign and transfer to Purchaser at the closing all of Seller' s right, title and interest in and to all insurance proceeds or other compensation paid or payable to Seller on account of such fire or casualty together with the amount of the deductible relating thereto . 18 . Lead-Based Paint . Unless exempt, if the improvements, if any, on the Property include one or more residential dwellings for which a building permit was issued prior to January 1 , 1978 , this Agreement shall be void unless a completed Lead-Based Paint Disclosure (Sales) form is signed by Seller and the required real estate professionals, if any, which shall have occurred prior to the parties signing this Agreement. 19 . Recommendation of Legal and Tax Counsel . By signing this document, Seller acknowledges that Seller has been advised that this Agreement has important legal consequences RF,.T Form Version 3116 07 - 9 - and has received the recommendation to consider the examination of title and consultation with legal and tax or other counsel before signing this Agreement . 20 . Entire Agreement, Modification. This Agreement constitutes the entire contract between the parties relating to the conveyance of the Property, and any prior agreements pertaining thereto , whether oral or written, have been merged and integrated into this Agreement . No subsequent modification of any of the terms of this Agreement will be valid, binding upon the parties, or enforceable unless made in writing and signed by the parties . 21 . Headings . Paragraph headings are used for convenience of reference and in no way define, limit or prescribe the scope or intent of any provision under this Agreement . 22 . Construction. Words of the masculine gender include the feminine and neuter gender and when the sentence so indicates , words of the neuter gender refer to any gender. Words in the singular include the plural and vice versa. Definitions of defined terms are intended to apply throughout this Agreement. This Agreement is to be construed according to its fair meaning, and as if prepared by all parties, and is deemed to be and contain the entire understanding and agreement between the parties . 23 . Time is of the Essence. It is agreed that time is of the essence of this Agreement and each and every provision . 24 . Binding Effect / Joint and Several Liability. This Agreement is binding upon and inures to the benefit of the parties their respective heirs, administrators, successors and assigns . If Seller consists of more than one individual or entity, each such individual or entity is jointly and severally liable for any and all obligations of Seller hereunder. 25 . Litigation Expenses. In the event any party defaults in any of its covenants or obligations and a party not in default commences and prevails in any legal or equitable action against the defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of the litigation, including a reasonable sum for attorneys ' fees or similar costs of legal representation . 26 . Brokers. Seller and Purchaser each represent and warrant to the other that such party has not employed , retained or consulted any broker, agent or other real estate professional with respect to the Property. Seller and, to the extent permitted by law, Purchaser, each indemnify and hold the other hannless from and against all claims, demands, causes of action, debts, liabilities, judgments and damages, including, without limitation , any related litigation expenses, that may be asserted or recovered against the other on account of any breach of this representation and warranty. 27 . Contingent on Council Approval . This Agreement is hereby made expressly contingent upon the City Council of the City of Fort Collins (the "Council ") approving the purchase of the Property by its adoption of a related resolution, in its discretion , on or before RET Form Version 3 16 07 - 10 - August 18 , 2009 . If the Council does not pass such a resolution on or before that date then this Agreement shall be automatically terminated, all parties shall be released from all obligations hereunder and any monies paid to Seller by Purchaser pursuant to this Agreement shall be refunded in full . 28 . Authority. Each person executing this Agreement represents and warrants that he or she is duly authorized to execute this Agreement in his or her individual or representative capacity as indicated . 29 . Counterpart and Facsimile Signatures.tom. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original , but all of which together shall constitute one and the same Agreement. Signatures may be delivered by facsimile copy. Facsimile signatures are binding on the parties as if they were originals 30. Recording. Purchaser may record this Agreement in the real property records of the Larimer County Clerk and Recorder. 31 . Governing LawNenue. The parties intend and agree that this Agreement is to be construed and enforced according to the laws of Colorado , and that venue in any proceeding related to the subject matter of this Agreement will be in Larimer County, Colorado . 32 . Condemnation Righis . Seller expressly acknowledges that it is aware that under Colorado law, Purchaser is empowered with the right of eminent domain and that, in the event Purchaser fails to acquire the Property from Seller under this Agreement, Purchaser may have the authority to acquire the Property by exercising its power of eminent domain . Seller further acknowledges that in the event Purchaser seeks to acquire the Property using its eminent domain authority, Seller would have the right, absent this Agreement, to require Purchaser to acquire the Property by complying with the laws of the State of Colorado regarding eminent domain. In particular, Seller acknowledges that Seller would have the right to receive from Purchaser a Notice of Intent pursuant to Section 38- 1 - 121 , C .R . S . , advising Seller of Purchaser' s intent to acquire the Property by an eminent domain action and of Seller' s right to obtain an appraisal of the Property, the reasonable costs of which Purchaser must pay, if the Property has an estimated value of Five Thousand Dollars ($ 5 , 000 . 00) or more . Seller understands and agrees that by entering into this Agreement, Seller waives these rights . 33 . Contin ene . As a condition precedent to Purchaser' s obligation to close on the Property for the Purchaser Price, Seller is required to construct, at Seller' s expense, additional water storage capacity on the Property as follows : A . No later than September 30, 2010, Seller shall complete the development of additional water storage capacity on the Property reasonably satisfactory to Purchaser (the "Additional Water Storage") and consistent in all material respects with Purchaser' s detailed plans, requirements and specifications ("Water Storage Requirements") . The Water Storage REr Form Version 3 16.07 - 11 - Requirements will set out specific design and construction requirements, and will take into account environmental , storm drainage, technical , regulatory and other requirements of concern to Purchaser, and will further include requirements related to the restoration of the Property. B . The Water Storage Requirements shall provide for Seller to increase the total actual water storage capacity on the Property to the maximum reasonably feasible total that is at least 1 , 500 acre-feet and no more than 2,000 acre-feet . Upon completion, the total actual water storage capacity shall be determined by a survey from a qualified engineer selected by Purchaser and reasonably satisfactory to Seller. CO The Water Storage Requirements shall be prepared by Purchaser at Purchaser' s sole cost and expense. A preliminary version of the Water Storage Requirements, constituting a conceptual , feasibility-level analysis and design for the Additional Water Storage and restoration of the Property, shall be provided to Seller no later than sixty (60) days after the Effective Date of the Agreement . D . After delivery of the preliminary Water Storage Requirements to Seller, Seller and Purchaser will have thirty (30) days to review, discuss, and negotiate any changes to the same. If, by the end of this thirty (30) day period the preliminary Water Storage Requirements are not acceptable to either party, and the parties cannot reach agreement as to an alternative set of plans, requirements and specifications, then the Agreement shall terminate. E . Seller shall provide to :Purchaser no later than ninety (90) days after the Effective Date satisfactory evidence of Seller' s financial ability to proceed with the development of the Additional Water Storage in accordance with the preliminary Water Storage Requirements. F . Within 150 days after the Effective Date Purchaser shall provide to Seller the final Water Storage Requirements, including the final design for the Additional Water Storage and restoration of the Property. if the Water Storage Requirements are not acceptable to Seller, and the parties cannot reach agreement as to an alternative set of plans, requirements and specifications, then the Agreement shall terminate . G . Seller is responsible for all permitting, environmental and other regulatory and legal compliance, and any other obligations or requirements associated with the development and completion of the Additional Water Storage. H . Purchaser shall be entitled at all times to inspect and monitor the activities on the Property after the Effective Date, and shall be entitled to any and all information and communications related to the permitting, compliance, contractual arrangements or other aspects of the development and completion of the Additional Water Storage or any other work on the Property, including but not limited updated information regarding the status of the same and Seller' s financial ability to proceed as required RFT Form Version '] b 07 - 12 - hereunder. I . Upon completion of the Additional Water Storage, Seller shall give written notice to Purchaser of such completion and shall request that the Colorado State Engineer' s Office certify the lining of the Additional Water Storage as satisfactory. J . Not later than twenty (20) days following notice by Seller of completion, Purchaser shall provide to Seller the name of a qualified engineer selected by Purchaser to certify the actual capacity of the Additional Water Storage and compliance with the Water Storage Requirements . Seller shall have five ( 5 ) days to object to Purchaser' s selected engineer, or said selected engineer shall be deemed to be satisfactory. The parties agree to work cooperatively to identify a mutually acceptable certifying engineer in order to provide for a proper and adequate certification of the capacity and compliance of the Additional Water Storage. Each of the parties shall share equally in the payment of the professional fee of such engineer. K. Upon certification of the actual capacity and compliance by the selected qualified engineer and the certification of the water storage by the Colorado State Engineer' s Office as set forth above, the parties shall arrange for an agreed upon closing date no less than forty-five (45) days and no more than ninety (90) days from the date of said certification. L. If Seller fails to complete the Additional Water Storage by September 30, 2010, then Purchaser may elect to terminate this Agreement and in such event shall have no further obligations hereunder. Alternatively, Purchaser may elect to obtain a survey of the Property and the actual water storage capacity then present on the Property by a qualified engineer at Seller' s expense, and to request certification of the water storage capacity on the Property as satisfactory by the Colorado State Engineer. Purchaser may then elect to proceed to acquire the Property by paying to Seller the Purchase Price adjusted downward by the amount of Two Thousand Seven. Hundred Fifty Dollars ( $2 ,750. 00) times the difference between 2 , 000 acre-feet and the actual water storage capacity certified to be present on the Property as of the date of the survey, or to terminate this Agreement . M . if the actual water storage capacity on the Property is determined to be at least 1. , 500 acre-feet of storage but the Colorado State Engineer is unwilling to certify that the water storage on the Property is satisfactory, then Purchaser may elect to terminate this Agreement and in such event shall have no further obligations hereunder. Alternatively, the Purchaser may elect to purchase the Property for the Purchase Price adjusted downward by : 1 ) the amount of Two Thousand Seven Hundred Fifty Dollars ($2 ,750 . 00) times the difference between 2 , 000 acre-feet and the actual water storage capacity certified to be present on the Property; and 2) Purchaser' s estimated costs to make such modifications or take such other actions as may be required to certify the storage, or to terminate this Agreement . RFT Form Version 3'16 07 - 13 - IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date and year first above written . SELLER : STONER AND COMPANY, a Colorado corporation Date : 2'`�h � By: ,K y5. i er, President �r STATE OF COLORADO ) ) ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of ��V ,9aq , by Jay D . Stoner as President of Stoner and Company. Witness my hand and official seal . My Commission expires : Not dry Public k{Vk Y 1N N Qr not 44 /! e• -� e � • � ��/ rn 7f ®l C •'V � °*, oar •••�•...<e.••• `w,`` CO jl0 a Ao i`§\N'a RFT Forni Version 3 16 07 - 14 PURCHASER: THE CITY OF FORT COLLINS , COLORADO a Municipal Corporatio Date : Q " C) By : Darin A . Atteberry, City ager A TEST • OR •C , < • City Cl ]c • APPR • • • :1;0• �� ® L0 - t Assi ' ant City Attomey STATE OF COLORADO ) ) ss COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this %36VA day of 206 by Darin A. Atteberry as City Manager and 1 6e ,( _ as City Clerk of the City of Fort Collins . Witness my hand and official seal . My Commission expires : 6 ^C:P(o -CPD IO No ary Public �4,,\`»1ls9tlf11a1e �{rR .�• 46A +. BLI C 00 RFT Form Version 3. 16 07 - 15 EXHIBIT A Legal Description PARCEL A A PARCEL OF LAND SITUATE IN THE SOUTHWEST QUARTER OF SECTION 3 , TOWNSHIP 6 NORTH , RANGE 68 WEST OF THE 6TH P .M . ; COUNTY OF LARIMER, STATE OF COLORADO ; BEING THE SAME TRACT OF LAND AS DESCRIBED IN THE WARRANTY DEED RECORDED AUGUST 29, 2005 AT RECEPTION NO. 2005- 0072387 , AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS : BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 3 , AND CONSIDERING THE WEST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 3 TO HAVE AN ASSUMED BEARING OF N 01044' 18 " W (NORTH END OF SAID LINE BEING MARKED BY AN ILLEGIBLE 3 - 1 /4" ALUMINUM CAP IN MONUMENT BOX, AND SOUTH END OF SAID LINE BEING MARKED BY A 2 - 1 /2 " ALUMINUM CAP STAMPED LS 33193 IN MONUMENT BOX), WITH ALL OTHER BEARINGS RELATIVE THERETO, THENCE S 87052 ' 12 " E, 2 ,388 .22 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF INTERSTATE 25 , THENCE ALONG SAID RIGHT OF WAY LINE THE FOLLOWING FOUR (4) COURSES : 1 , S 02002135 " E, 2,339 . 03 FEET; 2 . 135 .78 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO TILE RIGHT, HAVING A RADIUS OF 113295 . 00 FEET, A CENTRAL ANGLE OF 0004111971 , AND A CHORD WHICH BEARS S 01043114" E , 135 . 77 FEET; 3 . THENCE S 84" 55 ' 54 " W , 574 . 56 FEET; 4 . TIIENCE S 00055'24 " W, 30 . 00 FEET TO A POINT ON THE SOUTH LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 3 ; THENCE ALONG SAID SOUTH LINE, N 89°04'36 " W , 1 ,274 . 18 FEET; THENCE N 09016'32 " W, 324 .41 FEET ; THENCE N 01 046'32 " W , 289 .41 FEET; THENCE N 32046 '32 " W, 144 . 50 FEET; THENCE N 23039'02 " W , 631 . 96 FEET; TIIENCE N 01 050'02 " E, 208 .47 FEET; THENCE N 17013 '48 " W, 746 . 06 FEET; THENCE N 46009'32 " W, 10 . 66 FEET TO A POINT ON THE WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 3 ; THENCE ALONG SAID WEST LINE , N 01049114 " W , 384 .29 FEET TO THE POINT OF BEGINNING. RM' Pomm Version 1: 16 '07 - 16 EXHIBIT S Form of Deed GENERAL WARRANTY DEED THIS GENERAL WARRANTY DEED , made this day of , 20 % by and between STONER AND COMPANY , a Colorado corporation ( hereinafter "the Grantor" ) , whose address is 605 South College Avenue , Fort Collins , CO 80524 , and the CITY OF FORT COLLINS , COLORADO , a municipal corporation , whose mailing address , for purposes of this General Warranty Deed is P . O . Box 580 , Fort Collins , Colorado 80522 ( hereinafter "the Grantee" ) . WITNESSETH : That the Grantor, for and in consideration of the sum of Five Million Eight Hundred Thousand Dollars ( $ 5 , 800 , 000 . 00 ) and other good and valuable consideration , to the Grantor in hand paid by the Grantee , the receipt of which are hereby confessed and acknowledged , have granted , bargained , sold , and conveyed , and by these presents does hereby grant, bargain , sell , convey and confirm unto the Grantee and Grantee' s successors and assigns forever, that certain parcel of real property, together with all improvements , if any, situate , lying , and being in the County of Larimer, State of Colorado, more particularly described on Exhibit 1 , attached hereto , consisting of one page , and incorporated herein by this reference , also known by street and number as 4308 East County Road 36 , Fort Collins , CO 80528 which real property shall be hereinafter referred to as "the Property" . TOGETHER with all and singularly the hereditaments and appurtenances thereto belonging , or in any way appertaining , and the reversion and reversions , remainder and remainders, rents , issues , and profits thereof, and all estate , right , title , interest , claim and demand whatsoever of the Grantor, either in law or equity , of, in or to the Property , with the hereditaments and appurtenances . TO HAVE AND TO HOLD the Property above bargained and described with the appurtenances unto the Grantee and its successors and assigns forever. And the Grantor, for itself and its successors and assigns , does covenant, grant , bargain and agree to and with the Grantee and its successors and assigns , that at the time of the ensealing and delivery of these presents they are well seized of the Property; and having good , sure , perfect , absolute and indefeasible estate in law, in fee simple ; and having good right , full power , and lawful authority to grant , bargain , sell and convey the same in manner and form as aforesaid ; and that , except as hereinafter provided , the same are free from all former and other grants , bargains , sales , liens , taxes , assessments and encumbrances of RET Form Version 3 16 07 - 17 - whatever kind or nature whatsoever; and the Grantor does hereby warrant the title to the same , subject to all existing easements and rights-of-way in place or of record ; any restrictions , reservations, or exceptions contained in any United States or State of Colorado Patents of record ; all zoning and other governmental rules and regulations; statutory lien rights resulting from the inclusion of the Property in any special taxing or improvement districts ; all oil , gas or other mineral reservations or exceptions of record ; and general property taxes , assessments and charges for 2010 and all subsequent years . Grantor' s warranty of title is further subject to the encumbrances set forth on Exhibit 2 , attached hereto and incorporated herein by this reference . The Grantor, for itself and its successors and assigns , does covenant and agree to and with the Grantee and its successors and assigns , that the Grantee and its successors and assigns shall and may lawfully and at all times hereafter peaceably and quietly have , occupy, possess , and enjoy the Property hereby granted , or intended so to be , with the appurtenances , without the lawful hindrance or molestation of the Grantor or its successors and assigns , or of any other person or persons whomsoever, by or with its consent , privity or procurement . IN WITNESS WHEREOF , the Grantor has executed this General Warranty Deed the day and year first above written . GRANTOR : Stoner and Company , a Colorado corporation By : Jay D . Stoner, President STATE OF COLORADO ) ) ss . COUNTY OF LARIMER ) The foregoing General Warranty Deed was acknowledged before me this day of 20_7 by Jay D . Stoner, as President of Stoner and Company . Witness my hand and official seal . My Commission Expires : Notary RCT form Version ? 16 07 - g ACCEPTED BY GRANTEE : THE CITY OF FORT COLLINS , COLORADO a Municipal Corporation ( the Grantee ) By : Darin A . Atteberry , City Manager ATTEST : APPROVED AS TO FORM : City Clerk Assistant City Attorney RGT F01111 Version 3. 16 07 19 " EXHIBIT I To General Warranty Deed Legal Description PARCEL A A PARCEL OF LAND SITUATE IN THE SOUTHWEST QUARTER OF SECTION 3 , TOWNSHIP 6 NORTH , RANGE 68 WEST OF THE 6TH P .M . ; COUNTY OF LARIMER, STATE OF COLORADO; BEING THE SAME TRACT OF LAND AS DESCRIBED IN THE WARRANTY DEED RECORDED AUGUST 29, 2005 AT RECEPTION NO . 2005- 0072387 ; AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS : BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 3 , AND CONSIDERING THE WEST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 3 TO HAVE AN ASSUMED BEARING OF N 01044' 18 " W (NORTH END OF SAID LINE BEING MARKED BY AN ILLEGIBLE 3 - 1 /4 " ALUMINUM CAP IN MONUMENT BOX , AND SOUTH END OF SAID LINE BEING MARKED BY A 2- 1 /2 " ALUMINUM CAP STAMPED LS 33193 IN MONUMENT BOX) , WITH ALL OTHER BEARINGS RELATIVE THERETO; THENCE S 87052 ' 12 " E, 2,388 . 22 :FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF INTERSTATE 250, THENCE ALONG SAID RIGHT OF WAY LINE THE FOLLOWING FOUR (4) COURSES : L S 02 °02'35 " E, 2, 339 . 03 FEET ; 2 . 135 . 78 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE RIGHT, HAVING A RADIUS OF 11 ,295 , 00 FEET, A CENTRAL ANGLE OF 00041 ' 19115 AND A CHORD WHICH BEARS S 01043114 " E, 135 . 77 FEET; 3 . THENCE S 84055 '54 " W, 574 . 56 FEET; 4 . THENCE S 00055'24 " W, 30. 00 FEET TO A POINT ON THE SOUTH LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 3 ; THENCE ALONG SAID SOUTH LINE, N 89004'36 " W , 1 ,274 . 18 FEET ; THENCE N 09016 '32 " W, 324 .41 FEET; THENCE N 01 046 '32 " W, 289 .41 FEET; THENCE N 32046' 32 " W , 144 . 50 FEET; "THENCE N 23039'02 " W, 631 . 96 FEET; THENCE N 01 050'02 " E, 208 .47 FEET; THENCE N 17013 '48 " W, 746 . 06 FEET; THENCE N 46009'32 " W , 10 . 66 FEET TO A :POINT ON THE WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 3 ; THENCE ALONG SAID WEST LINE, N 01049114 " W, 384 . 29 FEET TO THE POINT OF BEGINNING , ROr Fonn Version 316 07 - 20 - EXHIBIT 2 To General Warranty Deed I . TERMS , CONDITIONS , PROVISIONS, AND RESTRICTIONS CONTAINED IN DEED RECORDED AUGUST 27 , 1946 IN BOOK 821 AT PAGE 239 . 2 . UNDIVIDED 1 /4 INTEREST IN ALL OIL, GAS AND OTHER. MINERALS LYING 1N , ON OR UNDER SUBJECT PROPERTY AS CONVEYED IN INSTRUMENT RECORDED OCTOBER 08 , 1953 IN BOOK 958 AT PAGE 239, AND ANY AND ALL INTERESTS THEREIN OR RIGHTS THEREUNDER. 3 , UNDIVIDED 2% INTEREST IN ALL OIL, GAS AND OTHER MINERALS LYING IN, ON OR UNDER SUBJECT PROPERTY AS CONVEYED IN INSTRUMENT RECORDED AUGUST 27, 1954 IN BOOK 977 AT PAGE 353, AND ANY AND ALL INTERESTS THEREIN OR RIGHTS THEREUNDER. 4 , RIGHT OF WAY EASEMENT AS GRANTED TO POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC . IN INSTRUMENT RECORDED NOVEMBER 24 , 1975 , IN BOOK 1674 AT PAGE 163 (AFFECTS THE W 1 /2 OF SW 1 /4) . 5 . TERMS, CONDITIONS , PROVISIONS , AND EASEMENTS CONTAINED IN AGREEMENT RECORDED MAY 21 , 19801N BOOK 2044 AT PAGE 840, AND AS SHOWN ON ALTA SURVEY DATED 9/10/07 #9080061 BY TST, INC . 6. RIGHT OF WAY EASEMENT AS GRANTED TO POUDRE VALLEY RURAL ELECTRIC ASSOCIATION, INC . IN INSTRUMENT RECORDED SEPTEMBER 03 , 19809 IN BOOK 2067 AT PAGE 133 (AFFECTS THE SW1 /4 OF SW1 /4). 7 , TERMS, CONDITIONS AND PROVISIONS OF MEMORANDUM OF SAND AND GRAVEL LEASE RECORDED FEBRUARY 23 , 1995 AT RECEPTION NO. 95010730 . 8 , RIGHT OF WAY EASEMENT AS GRANTED TO POUDRE VALLEY RURAL ELECTRIC ASSOCIATION , INC . IN INSTRUMENT RECORDED AUGUST 25, 1997, UNDER RECEPTION NO. 97055150 , 9 , TERMS , CONDITIONS AND PROVISIONS OF SPECIAL REVIEW RECORDED DECEMBER 8 , 1995 AT RECEPTION NO . 95078237 AND TERMS , CONDITIONS AND PROVISIONS OF FINDINGS AND RESOLUTION RECORDED MARCH 11 , 1998 AT RECEPTION NO . 98018684, 10 . ALL NOTES , EASEMENTS AND RIGHTS OF WAY AS SHOWN OF THE LAND SURVEY PLAT RECORDED JUNE 289 2007 AT RECEPTION NO. 2007049434 . 11 . ANY LOSS OR DAMAGE ARISING FROM THE FACT THAT THE FENCE LINES DO NOT COINCIDE WITH THE EXACT PROPERTY LINES AS SHOWN ON ALTA/ACSM LAND TITLE SURVEY NO . #908061 BY TS7', INC. 12 , ADDITIONAL RIGHT OF WAY AS SHOWN ON SURVEY AND CONTAINED IN INSTRUMENT RECORDED MAY 189 2004 AT RECEPTION NO. 20040047101 , RIGHT OF WAY FOR DITCH AS SHOWN ON ALTA SURVEY DATED 9/ 10/07 #8080061 BY TST, INC . Rr r Form Version 3 16 07 - 21 "