HomeMy WebLinkAboutFORT COLLINS RETAIL CENTER PUD - Filed OA-OTHER AGREEMENTS - 2003-11-03RCPTN # 87034808 OE V87 13:39:57 # OF PA — 2 FEE — $6.00
M RODENBER3ER, RECORDt — LARIMER COUNTY, CO STA_, DOC FEE $.00
SITE AND LANDSCAPE COVENAIATS
� FOR
Situate in the P.U.D. S.W. Vy of sa7w,3 36, -rwm. 0 Norm,
City of Fort Col Iins, County of Lariiner; RANGE rv°1, WEST or-rwE (u1, P.M.
State of Colorado
The undersigned, fee owner of Fct0ollinsRetail Center P.U.D. (The
Property) located in the City of Fort Collins, County of Larimer, State of
Colorado, does hereby maize the following declarations as limitations,
restrictions and uses to which the Property may be put, and hereby
specifies that these declarations shall constitute covenants to run with
all of the Property and shall be binding on all parties and all persons
claiming under them, and for the benefit of and limitations on all future
owners of all or part of the Property, this declaration being signed for
the purpose of guaranteeing that the Property will be developed and
landscaped initially and kept in desirable condition in the future as
herein specified. "Owner" shall include the signator to this document and
all successors or assigns of said signator.
The landscape improvements, parking areas, sidewalks, open spaces and
site amenities including, without limitation, energy generation or
conservation amenities, as described in the site and landscape plans
submitted to the City of Fort Collins and on record therewith shall be made
and installed in the manner as described in said plans unless amended
pursuant to the approval of the City of Fort Collins. With the exception of
lands necessary for construction, the owner shall cause the property to be
developed according to the site and landscape plan submitted to and
approved by the City of Fort Collins. It is further understood and agreed
that the owner of the Property, or its assigns or successors in interest,
shall be responsible for the maintenance and care (including necessary
replacement of dead grasses, plants, trees or shrubs) of all "planted and
landscaped" areas and other amenities within said P.U.D. together with all
parking, sidewalks and open space areas and all areas otherwise utilized
for buffering energy conservation or other site amenity. Should the owner
fail in any respect to comply with the terms of this Agreement, the City of
Fort Collins upon notifying said owner in writing of the matters in regard
to which default is asserted and should the owner fail either to cure said
default within thirty (30) days after receipt of such notice or to commence
within twenty (20) days to rectify such default until it is fully rectified
or cured, then the City of Fort Collins shall have the right (1) to obtain,
in the district Court of Larimer County, Colorado, a mandatory injunction
requiring rectification of the default, or (2 ) to enter upon said property
and perform the work necessary td replace said improvements or maintain the
same and the owner shall pay or cause to be paid to the City of Fort
Collins such sums necessary to reimburse said City of Fort Collins for the
labor and material expended to complete or maintain said improvements which
payment shall be made within ten (10) days after receipt of billing. The
sum due and unpaid shall accrue interest at the statutory rate for
judgements from the date that such sum is due. If said billing is not paid,
then the City of Fort Collins pursuant to the authority granted by these
covenants, shall have a lien on the above described property and
EXHIBIT C
"Site Plan"
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EXHIBIT D
Form of Easement
S�
EXHIBIT E
Form of Quit Claim Deeds
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A
TRI-PARTY DITCH AGREEMENT
THIS TRI-PARTY DITCH AGREEMENT ("Agreement"), made and en-
tered into this ;(e- day of A r;l , 1986, by and between THE
LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a mutual irriga-
tion corporation, hereinafter referred to as the "Ditch Company,"
THE CITY OF FORT COLLINS, COLORADO, hereinafter referred to as
the "City," and TROUTMAN PARTNERSHIP, a Colorado general part-
nership, hereinafter referred to as "Owner."
RECITALS
A. Owner is the contract purchaser and potential developer
of certain real estate located in the City of Fort Collins,
County of Larimer, State of Colorado, which real estate is de-
scribed in Exhibit A and shown on Exhibit A-1, both of which are
attached hereto and incorporated herein by this reference (the
"Property"), and Owner intends to develop the Property as a com-
mercial shopping center.
B. The Ditch Company is a mutual irrigation corporation
and owns a ditch (the "No. 2 Ditch") which presently crosses
through the Property. Although there is currently no dispute
over the location of the No. 2 Ditch or the right of the Ditch
Company to maintain the No. 2 Ditch in its present location,
there is no written instrument of record establishing the
right-of-way for the No. 2 Ditch.
C. This Agreement shall only bind the parties hereto if,
in fact, Owner obtains fee simple title to all of the Property
and commences its contemplated relocation of the No. 2 Ditch.
D. Previous to the date hereof, the capacity of the No. 2
Ditch running North of the Property (through an adjacent area
known as the "Heart SID") has been increased to a capacity of
approximately 240 cubic feet of water per second ("cfs").
E. In connection with the development by Owner of the
Property, Owner desires that the No. 2 Ditch, as it traverses the
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Property be relocated and the City requires that the same be en-
larged. Said relocation and enlargement through the Property
will necessitate similar relocation and enlargement of the No. 2
Ditch as it traverses the real property adjacent to the Property
on the south (shown on Exhibit A-1 as the "Mobile Home Park"),
particularly the extension of the Relocated No. 2 Ditch through
that portion of the Mobile Home Park shown on Exhibit A-1 as the
"Transition Area." All of the aforesaid relocation of the No. 2
Ditch is necessary in order to effectively utilize the Property
and to facilitate installation of necessary utility lines,
streets and similar improvements and the economical maintenance
of such improvements.
F. Along with the relocation of the No. 2 Ditch as it
traverses the Property and the Transition Area pursuant to this
Agreement, the parties hereto recognize that it will be effica-
cious to increase the capacity of the No. 2 Ditch as it runs
South of the Property and the Transition Area through another
portion of the Mobile Home Park (the "Mobile Home Park South") so
that the No. 2 Ditch through the Heart SID, the Property, the
Transition Area, and the Mobile Home Park South shall have a
minimum capacity at all parts within such area of 240 cfs.
G. Owner has employed engineers (RBD, Inc.) to prepare
plans and specifications for the relocation of the No. 2 Ditch
within the bounds of the Property and the Transition Area and for
the increase in capacity (pursuant to Paragraph 9) of the No. 2
Ditch within the Mobile Home Park South. Said plans and specifi-
cations, to the extent they contemplate construction or reloca-
tion of the No. 2 Ditch within the bounds of the Property and the
Transition Area, shall hereinafter be referred to as the "Prop-
erty/Transition Area Plans and Specifications"; said plans and
specifications, as they contemplate the increase in capacity of
the No. 2 Ditch within the Mobile Home Park South shall herein-
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after be referred to as the "Park South Plans and Specifica-
tions." The Park South and the Property/Transition Area Plans
and Specifications may be referred to collectively as the "Plans
and Specifications." For the purposes of this Agreement, the
term "Relocated No. 2 Ditch" shall mean the relocation of the
No. 2 Ditch pursuant to the Property/Transition Area Plans and
Specifications. The Plans and Specifications, bearing a date of
198_, and consisting of sheets, are
hereby approved in their details by the President of the Ditch
Company, and are attached hereto as Exhibit S and incorporated
herein by this reference. In connection with the preparation of
the Plans and Specifications, Empire Laboratories, Inc. of Fort
Collins has performed soil tests and investigations in order to
determine the proper materials to be used to line the Relocated
No. 2 Ditch in order to minimize seepage losses in, and the over-
all stability of, the Relocated No. 2 Ditch. The recommendations
of Empire Laboratories, Inc. have been incorporated into the
Plans and Specifications.
H. The Ditch Company has agreed to permit the relocation
of the No. 2 Ditch in accordance with the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, the parties hereto agree as follows:
1. Condition Precedent. The City and the Ditch Company
hereby acknowledge that Owner is a contract purchaser of the
Property (and not the current owner), and that all obligations,
liabilities, and warranties of the parties hereto pursuant to
this Agreement are strictly and expressly contingent upon:
(a) Owner's acquisition of fee simple absolute title to all of
the Property; and (b) Owner's actual'commencement of construction
work to relocate the No. 2 Ditch pursuant hereto. Any action or
partial performance by Owner of any of its obligations hereunder
prior to the acquisition by Owner of fee title to the Property,
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as aforesaid, shall not be deemed a waiver by Owner of these
contingencies.
2. Right -of -Way Through the Property. Owner shall provide
for the Ditch Company a right-of-way through the Property and the
Transition Area for the Relocated No. 2 Ditch and access roadway
in accordance with the Property/Transition Area Plans and Speci-
fications.
3. Property Right -of -Way - Cost. Owner will pay all costs
incurred in acquiring the rights -of -way described in Paragraph 2
and will indemnify and save the City harmless from any cost, ex-
pense or claim on account of the acquisition of such rights -of -
way including title work, attorney's fees and any other expense
incurred on account of any claim by any third party connected
with the acquisition of such rights -of -way.
4. Application Fee. Owner shall pay to the Ditch Company,
upon the Ditch Company's execution hereof, a one-time application
fee in the sum of Two Thousand Five Hundred and No/100 Dollars
($2,500.00). This fee shall be the minimum fee to cover the
Ditch Company's preliminary expenses such as legal work, time and
car use of Ditch Company Superintendent and/or directors, applica-
tion and documentary review and other preliminary matters. In
addition, Owner shall pay to Ditch Company additional amounts to
cover the additional reasonable and necessary expenses of the
Ditch Company which are directly related to the obligations of
the parties to this Agreement, provided that the Ditch Company
provides adequate documentation to support such expenses.
5. Ditch Relocation through the Property and Transition
Area. Owner shall construct the Relocated No. 2 Ditch upon the
Property and the Transition Area in accordance with the Property/
Transition Area Plans and Specifications, including all struc-
tures, rails and lining, the roadway along the Relocated No. 2
Ditch (within the Property and the Transition Area), and all
other details shown on the Property/Transition Area Plans and
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Specifications. The Property/ Transition Area Plans and Speci-
fications have been approved by the Ditch Company, and the work
shall conform to the Property Plans and Specifications. The work
on construction of the Relocated No. 2 Ditch through the Property
and the Transition Area may commence at any time after all pre-
conditions hereunder have been complied with; provided, however,
that in the event construction of the Relocated No. 2 Ditch
through the Property and the Transition Area is not complete by
April 15, 1986, Owner shall, so long as construction of the
Relocated No. 2 Ditch is not complete, maintain the original
No. 2 Ditch through the Property and Transition Area in such a
condition that it can be made workable upon 48 hours notice.
Owner shall inform the superintendent of the Dit. Company, in
writing, of the date for commencement of construction pursuant to
this Paragraph. All construction work commenced in accordance
with this Paragraph shall be done at the sole cost of Owner and
no other party to this Agreement shall bear any portion of the
cost of such construction work. During the progress of the con-
struction of the Relocated No. 2 Ditch through the Property and
the Transition Area, the Ditch Company, or their representatives,
may inspect said construction at any time and Owner agrees to
immediately correct any deficiencies in said construction (that
is, construction work which is not in compliance with the
Property/Transition Area Plans and Specifications) called to its
attention by the Ditch Company. Upon the completion of the Re-
located No. 2 Ditch through the Property and the Transition Area,
Owner shall so notify the City and the Ditch Company and the
Ditch Company may then inspect the completed work. In the event
there are any defects in said construction (that is, said con-
struction is not in compliance with the Property/Transition Area
Plans and Specifications), Owner shall promptly correct the same
at its sole cost and expense. It is acknowledged that the Ditch
Company intends to have inspection work done, at its own expense,
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by its superintendent to insure that the Relocated No. 2 Ditch is
in conformance with the Property/Transition Area Plans and Speci-
fications. If for any reason the superintendent is unable to
perform such inspection work, then the Ditch Company may employ,
at its own expense, engineers to perform such inspection ser-
vices.
6. Construction Review. In order to permit correlation
between the reported subsurface conditions and the actual condi-
tions encountered during construction, and to aid in carrying out
the Plans and Specifications as originally contemplated for the
relocation and enlargement of the No. 2 Ditch, Owner shall retain
Empire Laboratories, Inc., Fort Collins, Colorado, to perform
periodic construction review during all phases of work in order
to achieve compliance with their recommendations included in a
report for project no. 6086-85, which is attached hereto as Part
of Exhibit B, and incorporated herein by this reference.
7. Storm Draina a Waters. Upon completion of construction
pursuant to the Plans and Specifications, the Ditch Company ac-
knowledges that the City will be contributing storm drainage
waters to the flow of the No. 2 Ditch, and the Ditch Company
hereby consents to the same.
8. Engineer's Certificates. Prior to commencement of con-
struction of the Relocated No. 2 Ditch, Owner shall provide to
the Ditch Company engineer's certificates from Owner's civil and
soils engineers certifying that the Relocated No. 2 Ditch as it
runs through the Property and the Transition Area and as depicted
in the Property/Transition Area Plans and Specifications has been
properly designed and will convey at least 240 cfs of water with
no greater seepage loss than the No. 2 Ditch prior to relocation,
and that the No. 2 Ditch as it runs through the Mobile Home Park
South and as depicted in the Park South Plans and Specifications
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will convey at least 240 cfs of water. The above referenced
certification ("Engineers' Desi n Certificates") shall be in the
forms attached hereto as Exhibit D, and incorporated herein by
this reference. Upon completion of construction of the the
Relocated No. 2 Ditch, Owner shall further provide to the Ditch
Company a certificate of Owner's civil and soils engineers certi-
fying that the Relocated No. 2 Ditch has been completed in accor-
dance with the Property/Transition Area Plans and Specifications
("Engineers' Completion Certificates").
9. Ditch Reconstruction through Mobile Home Park South.
Prior to commencement of construction for the increase in capa-
city of the No. 2 Ditch within the Mobile Home Park South, Owner
shall furnish the City and the Ditch Company with written autho-
rization from the owners of the Mobile Home Park permitting the
construction, in accordance with the Park South Plans and Speci-
fications, of the No. 2 Ditch as it runs through the Mobile Home
Park South, including the granting of any necessary rights -of -
way. The increase in capacity of the No. 2 Ditch, as it runs
through the Mobile Home Park South, shall be constructed by Owner
at the City's cost and expense. Although such construction is to
be completed by Owner for the City, the City shall indemnify, de-
fend, and hold Owner harmless from any liability resultant from
such construction, including the costs of maintenance and re-
pairs, but excluding the costs of right-of-way acquisition, if
any. With regard to construction of the capacity enlargement of
the No. 2 Ditch as it runs through the Mobile Home Park South,
the City shall have all of the obligations to the Ditch Company
that Owner has in Paragraph 5. In its reimbursement to Owner for
the costs of construction in the Mobile Home Park South, the City
shall share the engineering and inspection expenses relating to
the Plans and Specifications and construction of the No. 2 Ditch
as more particularly set forth in a separate Development Agree-
ment between the City and Owner, and Chapter 93 of the City code,
which Code shall control over said Development Agreement in the
event of a conflict.
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improvements thereto. Said lien to he exercisable by filing a notice of
said lien against said property and improvements thereto; provided,
however, that the City of Fort Collins shall not have a lien against an;v
single-fa:ao^
ily lots and i-prvaents thereto within the property, i f
applicable. The City of FJrt Collins shall be entitled to all riyhts of
foreclosure or other reiedies-xi sting pursuant to Colorado law for
enforcement of liens against real pruperty and inay also, at its discretion,
.without waiving any ctner riunts it may have pursuant to law, proceed
directly �iith legal action against the owner, its assigns or successors in
interest, to collect paynent of the reasonable amounts so expended pursuant
to the terms Hereof.
The undersigned, its successors and assigns, hereby expressly reserve
the right, with the consent of the City of Fort Collins, Colorado, to amend
or restate these Covenants, by including the provisions contained herein
within the Protective Covenants for the real property platted as "The
3 t rn uig Retail Cx ter P.U.D." which real property shall include the
Property sunject tc these Cov n nts.
DATED this &q day of 19
Owner
Troutman Partnersh' a
Colorad e er partnership
By
T' ie John Edward Hayes II,
ATTEST: General Partner
ecretary
STATE OF COLORADO )
DE-AIVE )Ss
COUNTY OF
The foregoin instr me t was ac nowledged before his d
197, by as z
My Commission expires:
Witness my hand and official seal.
I'Y✓
ANPI!u�b is
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10. Intentionally Omitted.
11. Maintenance. Owner shall assume any maintenance re-
sponsibility for the Relocated No. 2 Ditch as it runs through the
Property and Transition Area, specifically involving the need to
maintain the same in operating order for a period of two full
irrigation seasons after construction of the Relocated No. 2
Ditch through the Property is completed. For the purposes of
this Agreement, an "irrigation season" shall mean April 15
through September 15. Owner agrees to pay all costs involved in
such maintenance. At the end of said two irrigation seasons, the
Relocated No. 2 Ditch shall be re -inspected by the Ditch Com-
pany's engineers for the purpose of determining the integrity of
the design and construction of the Relocated No. 2 Ditch, and
after approval by the Ditch Company, which approval shall not be
unreasonably withheld, the Ditch Company shall reassume responsi-
bility for all maintenance and repair of the No. 2 Ditch and any
costs associated therewith. The City shall assume maintenance
responsibility for the gunite lining on the No. 2 Ditch as the
same runs through the Mobile Home Park South.
12. Right -of -Way Title. Prior to commencement of construc-
tion of the Relocated No. 2 Ditch, Owner shall furnish to Ditch
Company copies of title insurance commitments showing the owner-
ship and subordination of all encumbrances affecting the land
upon which the rights -of -way referenced in Paragraph 2 shall be
granted.
13. Seepage Damage Waivers. Owner shall furnish to Ditch
Company satisfactory waiver of seepage damage from the owners and
encumbrancers of all the real property described in Exhibit C,
which is attached hereto and incorporated herein by this refer-
ence. Owner shall provide to Ditch -Company copies of title in-
surance commitments or policies indicating the ownership and
encumbrances effecting the land described in Exhibit C.
14. Abandonment of Old Ditch Ri ht-of-Way. Within three
(3) days of the Ditch Company's receipt of the Engineers' Design
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Certificates referenced in Paragraph 8, the Ditch Company shall
abandon the right-of-way for the former No. 2 Ditch, as the same
runs through the Property and through the Mobile Home Park (to
the extent the same is replaced by the Relocated No. 2 Ditch
through the Transition Area), and shall deliver executed quit-
claim deeds for all the Property described in Exhibit A, and that
portion of the Mobile Home Park described in Exhibit E, attached
hereto and incorporated herein by this reference. These quit-
claim deeds shall be in the forms attached hereto as Exhibit F,
and incorporated herein by this reference.
15. Owner's Indemnification. For the two full irrigation
seasons (as previously defined) after completion of construction
of the Relocated No. 2 Ditch, Owner shall indemnify and hold
harmless the Ditch Company from any and all damages incurred by
the Ditch Company proximately caused by Owner's construction of
the Relocated No. 2 Ditch as it runs through the Property and
Transition Area and shall defend, at Owner's expense, the Ditch
Company and its officers and directors, from any such claims
arising from Owner's construction of the Relocated No. 2 Ditch
through the Property and Transition Area. Notwithstanding the
foregoing, the Ditch Company shall use its best efforts to de-
liver all water to its shareholders, including the use of re-
routing water through other canals, if possible, in order to
minimize damages hereunder. The foregoing indemnity shall not
run to damages suffered by the Ditch Company resultant from man-
agement of the No. 2 Ditch.
16. City's Indemnification. As an additional protection to
the Ditch Company the City hereby agrees to indemnify and hold
harmless the Ditch Company, its officers, employees and direc-
tors, from any and all damages or injury incurred by the Ditch
Company or third parties arising solely from the running of
increased storm water in the No. 2 Ditch, but shall not be
responsible for damage or injury incurred as a result of, without
limitation, management of the No. 2 Ditch or carriage of irriga-
tion waters therein.
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17. Notice. Any notice required to be given under this
Agreement or which any party desires to give to another party
shall be deemed delivered if mailed to another party registered
or certified mail, return receipt requested, addressed as fol-
lows:
THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY
c/o William C. Stover
P. 0. Box 523
Fort Collins, CO 80522
THE CITY OF FORT COLLINS
Department of Engineering Services
P. O. Box 580
Fort Collins, CO 80522
Troutman Partnership
1600 Stout Street, Suite 1800
Denver, CO 80202
Attn: Jed Hayes
with a copy to:
Matthew Gordon, Esq.
Roath & Brega, P.C.
1700 Writers' Center Five
1873 South Bellaire Street
P.O. Box 5560 T.A.
Denver, Colorado 80217
Any such notice shall be effective on date of deposit in the
United States mail, postage prepaid.
18. Ditch Company Authority. The Ditch Company hereby
warrants and represents to all parties hereto that the Ditch
Company has full corporate authority to make all agreements and
commitments contained in this Agreement, and that the same may
be relied upon by all parties hereto. The Ditch Company will
provide to Owner and the City an opinion of Ditch Company's
Counsel as to the authority of the Ditch Company to enter into
this Agreement and the authority of the Ditch Company President
to sign for the Ditch Company.
19. Choice of Law. This Agreement shall be construed in
accordance with the laws of the State of Colorado.
20. Binding Effect. This Agreement shall be binding upon
the parties hereto, their successors and assigns.
21. Counterparts. This Agreement may be signed in counter-
part, and shall be fully binding upon all parties when all coun-
terparts are attached.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed the day and year first hereinabove writ-
ten.
ATTEST:
William C. Stover, Secretary
ATTEST:
THE LARIMER COUNTY CANAL NO. 2
IRRIGATING COMPANY, a mutual
irrigation corporation
By:
John Strachen, President
THE CITY OF FORT COLLINS,
COLORADO
718%4ss — By: C
&4.'C�
Clerk , City Manager
ATTEST:
APPROVED AS TO FORM:
B y :
�2fii1,�++� City Attorney
TROUTMAN PARTNERSHIP, a Colorado
general partnership
By:
John Edward Hayes II, general
partner
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LEGAL UE,)CKIPi1UN
-A,Toe PapeYej „
The tract of land located in the Southwest Quarter of Section 36, Township 7
North, Range 69 West of the 6th, Principal Meridian, City of Fort Collins,
Larimer County, Colorado, being more particularly described as follows:
Considering the West line of the South Half of the Southwest Quarter of said
Section 36 as bearing, North 0° 04' 30" West and with all bearings contained
herein relative thereto:
Commencing at the Southwest corner of said Section 36; thence, North 0' 04'
30" West along the West line of the South Half of the Southwest Quarter, a
distance of 870.16 feet; thence, North 89° 54' 16" East, a distance of SU.6k)
feet to the Southwest corner of a parcel of land as described in Reception
No. 85009553 of the Records of said County (subject to right-of-way
dedication recorded in Book 1094 at Page 578 of the records of said Countv,
said point being the POINT OF BEGINNING; thence along the Easterly right-
of-way of South College Avenue the following courses and distances, North 0°
04' 30" West, 452.86 feet; thence, North 89° 54' 52" Fast, 1.66 feet;
thence, North 0` 02' 24" East, 325.14 feet; thence, North 89° 55' 38" Fast,
2.70 feet; thence, North 0° 04' 22" West, 148.60 feet to a point on the
South line of that certain parcel of land described in Book 1733, Page 558,
Records of said County thence along said South line the following course,
North 69° 55' 38" East, 337.09 feet; thence, 243.24 feet on the arc of a
curve to the left with a central angle of 12° 23' 17", a radius of 1125.00
feet, and a chord which bears, North 83° 44' UU" Fast, 242.77 feet; thence
along the Southerly right-of-way of Troutman Parkway and the Westerly
prolongation of said Southerly right-of-way according to the exhibit of the
Heart Special Improvement District recorded at Reception No. 86012669,
records of said County, North 770 32' 21" East, 298.92 feet; thence 29.67
feet on the arc of a curve to the right with a central angle o1 b5° 00'
00", a radius of 20.00 feet and a chord which bears, South 590 57' 39"
East, 27.02 feet to a point on the West line of J. F. K. Parkway according
to the said exhibit of the Heart Special Improvement District; thence along
the said J. F. K. Parkway right-of-way, South 17° 27' 39" East, 576.67 feet
to a point on the North line of the South Half of the Southwest Quarter of
said Section 36; thence along said North line, South 890 54' 52" Webt,
401.27 feet; thence, South U° 05' 44" East, 294.80 feet; thence, South
89' 54' 52" West, 70.00 feet; thence, South 0° 05' 44" East, 185.83 feet;
thence, North 62° 35' 44" West, 7.51 feet; thence, 103.67 feet on the arc
of a curve to the left with a central angle of 27° 30' UO", a radius of
216.00 feet and a chord which bears, North 76° 20' 44" West, 102.68 feet to,
d point on the South line of that certain parcel of land described at
Reception No. 85009553, Records of said County; thence along said South
line, South 89' 54' 16" West, 493.60 feet to the Point of Beginning.
Also;
Commencing at the Southwest Quarter of said Section 36; thence along the
West line of the South Half of the Southwest Quarter of said Section 36,
North 00 04' 30" West, 1323.03 feet to the Northwest corner of the Southwest
Quarter of the Southwest Quarter of said Section 36; thence along the
North line of the South Half of the Southwest Quarter of said Section 36,
North 89° 54' 52" East, 1121.11 feet to a point on the West line of J. F. K.
Parkway according to the exhibit of the Heart Special Improvement District
recorded at Reception No. 86012669, records of said County; thence along
said West line, North 17° 27' 39" West, 853.20 feet to the POINT OF
BEGINNING, said Point of Beginning being a point on the South line of that
certain parcel of land described in Book 1049, Page 489; thence along said
South line, North 850 11' 48" West, 56.09 feet to a point on the West line
of that certain parcel of land described in Book 2218, Page 1378; thence
along said West line, South 66" 09' If" West, 104.34 feet; thence, South
33" 23' 52" West, 86.27 feet; thence. South 12° 30' 00" West, 48.00 feet;
thence, South 18° 08' 00" East, 49.92 feet to a point on the North right-
of-way line of Troutman Parkway according to the exhibit of said Heart
Special Improvement District; thence along said North line, North 770 32'
21" East, 225.01 feet to a point on a curve concave to the Northwest,
having a central angle of 95° 00' 00", a radius of 20.00 feet and the chord
of which bears North 300 02' 21" East, 29.49 feet; thence along the arc of
said curve, 33.16 feet to a point on the West line of said J. F. K.
Parkway; thence along said West line, North 170 27' 39" West, 136.00 feet
to the Point of Beginning.
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HARMONY ROAD
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MGAGIIJ
04/04/86
EXHIBIT B
PLANS AND SPECIFICATIONS
FOR RELOCATION OF THE NO. 2 DITCH
Including:
(1) Property/Transition Area Plans and
Specifications
(2) Park South Plans and Specifications
(3) Report of Empire Laboratories (No. 6086-85)
-14-
MGAG11J
04/04/86
EXHIBIT C
LEGAL DESCRIPTION OF LANDS SUBJECT TO
SEEPAGE DRAINAGE FROM DITCH RELOCATION
-15-
MGAG11J
04/04/86
EXHIBIT D
ENGINEERS CERTIFICATES
-16-
LEGAL DESCRIPTION
A strip of land 100 feet in width being 50 feet either side as measured at
right angles and parallel with the following described centerline, located in
the South Half of the Southwest Quarter of Section 36. Township 7 North,
Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado, being more particularly described as follows:
Considering the West line of the South Half of the Southwest Quarter of said
Section 36 as bearing, North 0° 04' 30" West and with all bearings contained
herein relative thereto:
Commencing at the Southwest corner of the said Section 36; thence along
said West line, North 0° 04' 30" West, 870.16 feet; thence, North 89° 54'
16" East, 388.29 feet to the POINT OF BEGINNING, said Point of Beginning
being on the South line of that certain parcel of land described at
Reception No. 85009553, Records of said County; thence along said
centerline, South 540 57' 49" East, 247.16 feet to the Southeasterly
terminus of said centerline.
The above described strip of land contains 0.57 acres, more or less, and is
subject to all easements and right—of—ways now on record or existing.
Abandon Historical Ditch (°wb 06vAr v)
March 12, 1986
& kt6cr "C'
AGREEMENT OF EXCHANGE FOR
RELOCATION OF DITCH
This Agreement of Exchange for Realignment of Ditch
("Agreement"), dated January !vim' , 1986, is between Sullivan
Hayes Investments, a Colorado general partnership ("Sullivan
Hayes") and the State of Colorado, acting by and through the
Board of Land Commissioners (the "State").
RECITALS:
A. Sullivan Hayes has the right, pursuant to certain
Receipt and Option Contracts, to purchase the real property
(the "Sullivan Hayes Parcel") described in Exhibit A, which
is attached hereto and incorporated herein by this reference.
B. Through a reservation in the original patent (No.
3505) of the Sullivan Hayes Parcel, the State is the owner,
in fee simple, of the ditch ("Current State Ditch") running
through the Sullivan Hayes Parcel, and which is shown on
Exhibit C, attached hereto and incorporated herein by this
reference.
C. In order to facilitate development of the Sullivan
Hayes Parcel that Sullivan Hayes has planned, upon its
acquisition of the Sullivan Hayes Parcel, the Current State
Ditch shall be realigned as shown on Exhibit C and shall be
over the real property described on Exhibit B, attached
hereto, and will be hereinafter referred to as the "Realigned
Ditch".
D. In order to clear the title to the Sullivan Hayes
Parcel as well as to facilitate, for the benefit of both
Sullivan Hayes and the State, development of the Sullivan
Hayes Parcel, the parties desire to exchange the State's
interest in the Current State Ditch for an equivalent interest
in the same amount of real property in the Realigned Ditch.
E. In order to facilitate the use of the Realigned
Ditch, the State, in exchange for consideration described
below, desires to grant a right of way over the Realigned
Ditch.
Now, therefore, in consideration of the mutual promises
contained herein and for other good and valuable consideration,
Sullivan Hayes and the State agree as follows:
Simultaneously with Sullivan Hayes' recordation of the
deeds to the Sullivan Hayes Parcel, the parties hereto shall
perform the following:
(a) Sullivan Hayes shall execute a quit claim
deed to the State of the parcel described in Exhibit B;
Recorded at _
Reception No.
u dock "
Recorder_
QUIT CLAIM DEED
THIS DEED, made this day oI 19 86,
hetween The Larimer County Canal No. 2 Irrigating
Company, a Colorado mutual irrigation corporation,
n� '. t ail, 'In n•,eo-m ae. „ e h de I dfi..� , I, IN 44WAWW I , ,
grari and Troutman Partnership, a Colorado general
Partnership formed for a specific purpose
whose legal address n 1600 Stout Street, Suite 1800
Denver, Colorado 80202
III the City and ' C'ounn ul Denver . Slate of Cohn -ado. grantee.
AAITNESSETH, That the grantor. lit and in c"nw&urm"wrr+4w-ww"r ,+ good and valuable consideration
rtXftttlil the receipt and sulliaenc, tit which is hereby ad.now lcdged. has remocd, released. sold, comeled and QUIT CLAIMLD, and h, these
presents dues remise. release. ,ell. come, and L)C IFCLABI untolhe grange, his hems and assigns lore,er. all the right, nlc. interest, dam and
demand which the grantor has In and lu the real proper" together wuh imprusements. It all situate, htng and heme in the
Count% ul Larlmer and Slate ul Colorado, described as Ildh,w"
See Exhibit "A" attached hereto and incorporated herein
by this reference.
also known bx ,trees and number as: not applicable (Vacant Land)
TO HAVE AND TO HOLD the same. together w ith all and singular the appurtenances and pri, llege, hereunto belonging. or In anpw Ise ihereuno
appertaining, and all the e,tate. right. ode. Interest and claim whct, e,cr. ut the grantor, either In law nr eyull,. to the onh proper me. henclit and
behoof of the grantee. his heir, and assigns tore,er. The singular numher�hall include the plural. the plural the Singular, and the use of am gender
,hall he applicable to all genders.
IN WITNESS KHEREOF. The cramor has caused It, corporate name ❑t he hereunto subscribed b, its Resident and n,
corporate seal w be hereunto atiixeJ. ante*led h, Its Secretor,. the da, and xeur tir,t aM„c written.
Attest. The Larimer County Canal No. 2
Irrigation Company, a Colorado mutual
irrigation corporation
STATE OF COLORADO
Count of
B,
M„ae.I
ill
The loneguing instrument was ickromledged beture me m the Count, of . State of
Colorado. this di, of 19 . by
all Premdent and
Seeretary of The Iarimer County Canal No. 2 Irrigation Company, a
.Sly notarial commission expires. Colorado mutual irrigation corporation
Warren m_, hand and offictal seal.
N" , P rh.
91 in Denver. Insert "Cite and Aaarc.
No. 1088. Rev. 1-84. QL IT C'L %1%1 DEED ( Con-wri tbn) Bradford Pu0lutnng. 5825 A 6th At, . t rwood, CO 80]la — I M, ]D 09(In _-44
SH No/MP/Side: 2Ul!" TU
COLORADO DEPARTMENT OF HIGHWAYS Local Jurisdiction:,, FoA Collins
Dist/Section/Patrol: 04/01/04
STATE HIGHWAY ACCESS PERMIT DOH Permit No.: 487052
I'l-II: Larry Jungmeyer (224-4176) Permit Fee: N/A
4205 Janis Court/LaPorte, CO 80535 Date ofTransmittall
THE PERMITTEE;
Troutman Partnership
303 Toth Street, Suite 300
Denver, CO 80202
(303) 534-0900
is hereby granted permission to construct and use an access to the state highway at the location noted below.
The access shall be constructed, maintained and used in accordance with the terms and conditions of this permit,
including the State Highway Access Code and listed attachments. This permit may be revoked by the issuing
authority if at any time the permitted access and its use violate any of theterms and conditions of this permit. The use
of advance warning and construction signs, flashers, barricades and flaggers are required at all times during access
construction within State right-of-way in conformance with the MANUAL ON UNIFORM TRAFFIC CONTROL
DEVICES, Part VI. The issuing authority, the Department and their duly appointed agents and employees shall be held
harmless against any action for personal injury or property damage sustained by reason of the exercise of the permit.
(LOCATION: I
Access to be located on State Highway 287, a distance of 1,360.0 feet north of mile
post 342..167 (State Highway 68) on the east side.
ACCESS TO PROVIDE SERVICE TO:
143,000 square feet shopping center
i
OTHER TERMS AND CONDITIONS:
1. This permit is only for the use and purpose stated in the Application
and Permit. A change in use of the property which results in a
change in the type of street operation may require reconstruction,
relocation, or conformance of the street to the Access Code.
2. ..Reconstruction or improvements to the access may be required when the
permittee has failed to meet required specifications of design or
materials. If any construction element fails within two years due to
the improper construction or material specifications, the permittee
is responsible for all repairs.
3. This driveway is approved for RIGHT turns ONLY. Left turns are NOT
approved.
Arra„hri 'f.&xhi•h4t A4, -- -
MUNICIPALITY OR COUNTY APPROVAL - -
Required only When th a�Doro rate local authority ret ns i suing authority.
By (Xi 4 V� Date _ Title Development Coordinator
Upon the signing of this permit the pe ittee agrees t het rms'and conditions and referenced attachments contained
herein. All construction shall be completed In an expeditious and safe manner and shall be finished within 45 days from
initiation. The permitted access shall be completed in accordance with the terms and conditions of the permit prior to
being used. The permittee shall notify City of Fort Collins, Enqineering Inspection Division
at least 48{hours prior to Ypommencing nstr, tion within the State Highway right-of-way.
The person Sig as the e tte lus be thepwner or legal representative of the property,served by the permitted -
access -and In e fu ut _ , l permit and all it's terms and conditions... n, 4' "t
Permit tee (X n�— Date
.._-( _... A-F--r c-2
This permit is not valid until signed by a duly authorized representative of the State Department of Highways.
STATE OF COLORADO, DIVISION OF HIGHWAYS _
ROBERT L. ENGER, CHIEF ENGINEER
By (X) Date S- 7— �� Title
(Date of issue)
COPY DISTRIBUTION: Requued: Make copies as necessary for. - Previous Editions are Obsolete and will not be use'
1. District (Original) Local Authority Inspector DOH Form 10'
2_ Applicant bf Patrol Trethc Engineer 9/E`.
3, Stall ROW
"EXHIBIT A"
1) Access Permit is conditioned that the right turn only access may be
restricted to an enter only or revoked if safety and/or operation
problems occur on 287 due to the access.
2) The driveway shall be constructed with proper signs and the porkchop
island to control the right turns in and nut as shows on the attached
exhibit. The porkchop island and signs may be removed after the median
in SH 287 is installed.
3) Not to be used as construction access.
4) This driveway shall be constructed 24 feet wide with 30 foot radii.
Width at the right-of-way line shall be 30 feet.
5) The access approach shall be surfaced immediately upon completion of
earthwork construction and prior to being used.
6) Surfacing shall consist 3" HBP on 7 1/2" asphalt treated base.
7) Construction of handicap ramps at the intersections of sidewalk and
curbs according to the attached plan.
8) Drainage to the State Highway right-of-way shall not exceed the his-
torical flow.
9) If frost is present in the sub -grade, no surfacing material shall be
placed until ALL frost is gone or removed.
10) Owner is responsible for ANY utilities disrupted by the construction
activity of this street and ALL expenses incurred for repair.
11) COPY OF THIS PERMIT MUST BE ON THE JOB WITH THE CONTRACTOR.
..._ ,�...., ,,..,, — e — t,,,> .iay ue wrurucreu d vwrduun ui the permit.
The applicant hereby declares that all information provided on this form and any submitted attachments(s) for the
Purposes Of obtaining an access permit are to the best of his knowledge correct and complete. Providing false
information to a government agency is punishable as perjury in the second degree, as well as being punishable under any
other applicable state or federal laws.
SIGNATURE(X)
Relationship Io property. (owner? lessee? please specify.)
DATE
Since an approved access becomes an important and integral part of the property, we require that when the applicant is
not the surface rights owner of the property, this application must also be signed by the surface rights owner or his legally
authorized representative (or other acceptable written evidence) concurring in this application. If a permit is authorized,
the property owner will be listed as the permittee. The authorized access permit maybe recorded in the county of record.
Property Owner (X)
Date
DOH Form No. 137
Rev. rune, 1985
23aabrll26
THIS "AGREEMENT", dated November Zq , 1986 is among
Troutman Partnership a Colorado general partnership
("Troutman"), Ft. Collins Assemblage, Ltd., a Colorado limited
partnership ("Ft. Collins Assemblage"), William R. Griffith
(a/k/a W. Roland Griffith) and Elba R. Griffith (collectively,
the "Griffiths") and IntraWest Bank of Aurora, N.A. (the "Bank").
RECITALS
A. Troutman is the contract purchaser of certain real
property described on Exhibit A, which is attached hereto and
incorporated herein by this reference (the "Troutman Parcel").
upon its acquisition of the Troutman Parcel, Troutman intends to
develop most of the same as a commercial shopping center.
B. Larimer County Canal No. 2 (the "Ditch") runs
through the Troutman Parcel in such a way that Troutman's
intended development of the Troutman Parcel is impractical.
Troutman, therefore, intends to relocate the Ditch.
C. Ft. Collins Assemblage is the contract purchaser
(pursuant to a Contract for Deed escrowed with First Interstate
Bank, Ft. Collins, N.A.) of certain real property adjacent to the
Troutman Parcel on the south (the "FCAL South Parcel"). In order
for Troutman to relocate the Ditch from within the Troutman
Parcel, it is necessary that the Ditch also be partially
relocated as it traverses the FCAL South Parcel. To facilitate
this relocation, as well as other development objectives,
Troutman desires that Ft. Collins Assemblage execute the
appropriate easement for relocation of the Ditch upon the FCAL
South Parcel; Ft. Collins Assemblage desires to comply with the
above in exchange for the payment described below.
D. The Contract for Deed, pursuant to which Ft.
Collins Assemblage is the equitable owner of the FCAL South
Parcel, secures an obligation of Ft. Collins Assemblage to the
Griffiths. Troutman and Ft. Collins Assemblage, in order to
facilitate the relocation of the Ditch on the FCAL South Parcel,
intend that the obligation of Ft. Collins Assemblage to the
Griffiths be fully repaid and that the legal interest of the
Griffiths in the FCAL South Parcel be fully discharged.
E. Troutman is the contract purchaser from Ft. Collins
Assemblage pursuant to that certain Purchase and Sale Contract,
dated October 15, 1985 (the "Sliver Purchase Contract") of real
property described on Exhibit B, which is attached hereto and
incorporated herein by this reference (the "Sliver Parcel").
F. Troutman and Fort Collins Assemblage are parties to
that certain "Road Construction Agreement" dated October 15,
1985, which provides for certain rights and obligations of the
parties with respect to the real property described on Exhibit C,
which is attached hereto and incorporated herein by this
reference (the "Troutman Parkway Parcel"). The Troutman Parkway
Parcel and the Sliver Parcel may be referred to collectively as
the "FCAL North Parcels".
G. The FCAL North Parcels are encumbered by a Deed of
Trust dated January 27, 1986 and recorded at Reception No.
86006541 of the records of the Clerk and Recorder for the County
of Larimer, which Deed of Trust is for the benefit of the Bank.
Troutman and Fort Collins Assemblage desire that the Bank ratify
and subordinate the lien of its Deed of Trust to the Road
Construction Agreement and release the lien of its Deed of Trust
from the Sliver Parcel; the Bank desires to comply with the above
in exchange for the payments described below.
NOW, THEREFORE, in order to facilitate the acquisition
and development by Troutman of the Troutman Parcel and in
exchange for the mutual promises contained herein, Troutman, Ft.
Collins Assemblage, the Griffiths and the Bank hereby agree as
follows:
1. Contingencies to Obligations. Except as expressly
set forth herein, the obl gations of the parties to make all
conveyances, payments and do all acts required herein shall be
expressly contingent upon, and occur immediately following,
Troutman's receipt of fee title to the Troutman Parcel.
2. Obligations of Troutman.
(a) Troutman shall pay, in certified funds or by wire
transfer, the sum of One Hundred Thousand and No/100th
Dollars ($100,000.00) to Ft. Collins Assemblage or to
any other party or parties set forth in writing from Ft.
Collins Assemblage to Troutman.
(b) The provisions of Article IV of the Road
Construction Agreement shall be modified only to the
extent set forth in this subparagraph and in
subparagraph 3(e). In lieu of the promissory note
described in Article IV of the Road Construction
Agreement, Troutman shall execute a promissory note in
the form set forth in Exhibit D, attached hereto and
incorporated herein by this reference, which promissory
note shall be payable to Ft. Collins Assemblage and
shall be in the amount of the product of $3.00
multiplied by the number of square feet in the Troutman
Parkway Parcel (which product equals $194,313.00). Said
promissory note shall be delivered to Ft. Collins
Assemblage (for assignment to the Bank) at the time of
recording by the Bank of the Recognition and Subordina-
tion Agreement pursuant to subparagraph 5(a).
(c) Troutman shall substantially complete
Construction of a road described in the Road
Construction Agreement upon the Troutman Parkway Parcel
within twelve (12) months following the date of
Troutman's receipt of fee title to the Troutman
Parcel. In the event said road is not constructed by
said date, the promissory note referenced in subpara-
graph 2(b) shall be cancelled and returned to Troutman.
(d) Troutman shall, at its own cost and expense,
fill (and compact to normal standards) the currently
existing Ditch as it traverses the FCAL South Parcel, to
the extent the Ditch is no longer necessary due to its
replacement pursuant to this Agreement and the Easement
Agreement attached hereto as Exhibit E.
(e) Once Troutman has constructed a slope upon the
Slope Easement granted in Exhibit E hereto, Troutman
shall plant grass seed upon such slope but shall have no
obligation to maintain the same.
(f) Troutman shall use its best efforts to cause
access to be allowed to the FCAL South Parcel off of the
road to be constructed and dedicated by Troutman
adjacent to the South side of the Troutman Parcel.
3. Obligations of Ft. Collins Assemblage.
(a) Ft. Collins Assemblage hereby acknowledges
that the Sliver Purchase Contract is in full force and
effect and that Ft. Collins Assemblage is currently in
default thereunder due to its failure to close as
required thereunder on October 15, 1986. Ft. Collins
-2-
Assemblage shall comply with all the terms and condi-
tions of the Sliver Purchase Contract and shall convey
fee simple title to the Sliver Parcel to Troutman,
subject only to those specific liens, encumbrances and
other matters of title set forth in Exhibit B-1, which
is attached hereto and incorporated herein by this
reference. The obligations of the parties pursuant to
the Sliver Purchase Contract are modified only to the
extent that Ft. Collins Assemblage's conveyance of fee
title to the Sliver Parcel pursuant thereto shall take
place upon seven days' prior written notice from
Troutman to Ft . Collins Assemblage and that Ft. Collins
Assemblage shall sign any plat required by the City of
Ft. Collins related to Troutman's potential development
of the Sliver Parcel. The obligations of Ft. Collins
Assemblage pursuant to this subparagraph shall not be
subject to the contingency set forth in Paragraph 1.
(b) Immediately upon execution of this Agreement
and without being subject to the contingencies set forth
in Paragraph 1, Ft. Collins Assemblage shall execute the
Easement Agreement attached hereto as Exhibit E and
incorporated herein by this reference. Said Easement
Agreement shall be held in escrow at the offices of
Otten, Johnson, Robinson, Neff & Ragonetti and shall be
released to Troutman only in the event of Troutman's
payment to Ft. Collins Assemblage as described in
subparagraph 2(a).
subparagraph 2(a), Ft. Collins Assemblage==sha-1�ay to
Troutman, all sums expended,__by—the City in its pursuit
of condemnatio £�Crre'real property over which Ft.
Collins lage has now agreed to grant the easement
degotofBed in Exhibit E. Such expenses shall not exceed
(d) Upon its receipt of the sum set forth
subparagraph 2(a), Ft. Collins Assemblage shall pay
the Griffiths, in cash or certified funds, the sum
$ tiz , which sum is the amount necessary
fully repay the obligation of Ft. Collins Assemblage
the Griffiths and which obligation is secured by
Contract for Deed described in Recital Paragraph D.
(e) The promissory note received by Ft. Collins
Assemblage pursuant to subparagraph 2(b) shall be
immediately assigned by Ft. Collins Assemblage to the
Bank, by an endorsement on the back of said note which
reads as follows: for good and valuable consideration
the note described on the reverse side is hereby
assigned, sold and transferred, with recourse, to
IntraWest Bank of Aurora, N.A.; signed - Ft. Collins
Assemblage, Ltd., a Colorado limited partnership, By:
William K. Strickfaden, general partner."
(f) Without being subject to the contingency set
forth in Paragraph 1, all proceeds received by Ft.
Collins Assemblage as a result of its performance
pursuant to the Sliver Purchase Contract shall be paid
immediately to the Bank.
(g) Without being subject to the contingency set
forth in Paragraph 1, any funds remaining from the
payment from Troutman to Ft. Collins Assemblage pursuant
to subparagraph 2(a) after payment of condemnation
expenses (as described in subparagraph 3(c)) and
$ S'2fpo�•oo to the Griffiths (as described in
subparagraph 3(d)) shall be paid immediately to the
Bank.
�f
-3-
(h) Without being subject to the contingency set
forth in Paragraph 1, Ft. Collins Assemblage shall,
immediately upon its execution hereof, deliver to
Troutman a copy of the fully executed partnership
agreement of Ft. Collins Assemblage, along with all
amendments thereto.
4. Obligations of Griffiths. Upon their receipt of
the sums set forth in subparagraph 3(d), the Griffiths shall
execute all documents and do all acts necessary to effect the
release of their interest in the FCAL South Parcel and to cause
the recordation of the escrowed Warranty Deed currently held by
First Interstate Bank Fort Collins, N.A., as more particularly
described in Recital D.
5. Obligations of Bank.
(a) Upon its receipt of the promissory note described
in subparagraphs 3(e), the Bank shall execute the
Ratification and Subordination Agreement attached hereto
as Exhibit F and incorporated herein by this reference,
and deliver the same to Troutman, who shall record the
document in the Larimer County Real Property Records.
(b) Without being subject to the contingency set forth
in Paragraph 1 upon its receipt of the sums described in
subparagraph 3(f), the Bank shall execute a Partial
Release of the Sliver Parcel in a form satisfactory to
Troutman.
Y (c) Without being subject to the contingency set forth
in Paragraph 1, upon completion of construction of the
road upon the Troutman Parkway Parcel in accordance with
the Road Construction Agreement, the Bank shall execute
all necessary documents to release the Troutman Parkway
Parcel from the lien of the Bank's deed of trust.
(d) Upon dedication by Ft. Collins Assemblage of the
Troutman Parkway Parcel to the City of Ft. Collins, as
more particularly set forth in the Road Construction
Agreement, the Bank shall execute documentation
satisfactory to Troutman reducing Troutman's obligation
pursuant to the promissory note referenced in
subparagraph 2(b) by an amount equal to one-half of the
Construction costs of Troutman Parkway, as more
particularly described in the Road Construction
Agreement.
(e) Without being subject to the contingencies set
forth in Paragraph 1, the Bank will execute, upon the
request of Troutman, a plat map or other documentation
necessary to complete the platting and zoning processes
for the Troutman Parcel, as required by the City of Ft.
Collins.
6. Warranties of Ft. Collins Assemblage. Ft. Collins
Assemblage hereby represents, warrants and agrees that as of the
date hereof:
(a) Other than the pending litigation in which Troutman
is the plaintiff, there is no litigation pending or
threatened which in any manner affects the FCAL South
Parcel, the Troutman Parkway Parcel or the Sliver Parcel
(collectively the "FCAL Ground".
(b) All agreements affecting the FCAL Ground have been
disclosed to Troutman.
-4-
(c) The execution and delivery of, and the performance
of all obligations under this Agreement by Ft. Collins
Assemblage, do not and will not require any consent or
breach off, or consent or approval of any person and do
not and will not result in a breach of, or constitute a
default under, any indenture, loan or credit Agreement,
mortgage, deed of trust or other Agreement.
(d) To the best of Ft. Collins Assemblage's knowledge
and belief, there are no violations of any law, code,
ordinance, rule or regulation or insurance policy
affecting the FCAL Ground.
(e) To the best of Ft. Collins Assemblage's knowledge
and belief, there are no easements, rights -of -way or
encumbrances of any type or kind which prevent the
development of the FCAL Ground as contemplated hereby.
(f) There are no special assessments or reimbursements
made or levied against the FCAL Ground.
(g) All bills for work done and materials furnished
with respect to the FCAL Ground, other than work or
materials authorized by or attributable to Troutman,
have been paid in full or will be discharged and paid in
full by the date of conveyance.
(h) Ft. Collins Assemblage knows of no facts nor has
Ft. Collins Assemblage misrepresented or failed to
disclose any fact which would prevent Troutman from
using and developing the FCAL Ground as contemplated
herein.
(i) Ft. Collins Assemblage is duly formed and validly
existing under the laws of the State of Colorado and has
complied with all conditions requisite to doing business
in Colorado; and has full power, legal capacity and
authority to own and to convey the Ft. Collins
Assemblage Parcels, to execute and deliver all documents
required pursuant to this Agreement, and used in
connection with the sale of the properties described
herein, and to perform the transactions contemplated
hereby. William K. Strickfaden, as general partner of
Ft. Collins Assemblage, has full power and authority to
execute this Agreement, the Sliver Purchase Contract and
the Road Construction Agreement.
7. Broker's Fee. Ft. Collins Assemblage and Troutman
represent that no broker's finder's or similar fee or commission
is due (other than to J. R. Lake Corp., which shall be Troutman's
obligation) in connection with the transaction contemplated
herein.
8. Miscellaneous.
(a) Ft. Collins Assemblage hereby agrees to defend,
indemnify, save and hold harmless Troutman, its
successors or assigns, from any and against any and all
liabilities and claims regarding either of the Ft.
Collins Assemblage Parcels arising from facts,
circumstances, agreements, contracts or other
documentation existing prior to or on the date of
closing.
(b) The provisions of this Agreement shall survive
delivery of the deeds and shall not be merged therein.
(c) No amendment or modification of this Agreement
shall be valid or binding unless reduced to writing and
executed by the parties hereto or their assigns.
-5-
(d) All notices required herein shall be in writing and
delivered to the parties hereto, or mailed to the
parties hereto by registered or certified mail, at the
addresses set forth below, unless notice of change of
address is hereinafter given by the parties in
writing. Notice shall be deemed received, if delivered,
upon delivery, and if mailed, three (3) days following
such mailing.
If to Ft. Collins Ft. Collins Assemblage, Ltd.
Assemblage: Suite 200
3600 South Beeler Street
Denver, Colorado 80237
Attn: Bill Strickfaden
with a copy to:
William A Bostrom, Esq.
1625 Broadway, Suite 2500
Denver, CO 80202
If to Troutman: Troutman Partnership
1600 Stout Street
Suite 1800
Denver, Colorado 80202
Attn: John Edward Hayes II
with a copy to:
Matthew D. Gordon, Esq.
Otten, Johnson, Robinson, Neff
and Ragonetti
1225 17th Street, Suite 2500
Denver, Colorado 80202
If to Bank: IntraWest Bank of Aurora
/ 9 sa ca rn tfrt , nNA
Ajao / /A . e a frL)()'9P
,
Attn: TO * AerrE✓t
If to Griffith: W. Roland and Elba Griffith
1.10 G Th22Y r)N oa %vc
Pl.
(e) Each party agrees that the covenants and promises
contained herein are good and sufficient consideration
for the respective obligations required hereunder.
(f) Each party hereto shall from time to time execute
and deliver such further instruments as the other party
or its counsel may reasonably request to effectuate the
intent of this Agreement, except that neither party
shall be required to sign any documents which would
transfer or encumber title to any property prior to
closing.
(g) The parties hereto expressly agree that the terms
and conditions hereof, and subsequent performance
hereunder, shall be construed and controlled by the laws
off the State of Colorado.
(h) In the event that either party takes legal action
against the other in order to enforce the terms of this
Agreement, the party in whose favor final judgment is
entered shall be entitled to recover from the other
party reasonable attorneys' fees to be fixed by the
court which shall render said judgment.
(i) Section headings used in this Agreement are for
convenience of reference only and shall not affect the
Construction of any provision of this Agreement. As
used herein, the singular shall include the plural, and
vice versa; and any gender shall be deemed to include
the masculine, feminine and neuter gender.
(j) The provisions hereof shall be binding upon and
inure to the benefit off the heirs, successors, personal
representatives and assigns of the parties.
(k) Should any term or condition hereof be deemed void
or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect.
(1) At the date of closing, Ft. Collins Assemblage
agrees to execute a quit claim deed conveying to
Troutman any and all of Ft. Collins Assemblage's
interest in all of the Troutman Parcel and the Troutman
Parkway Parcel.
(m) Time is of the essence hereof.
(n) The rights and obligations of Ft. Collins
Assemblage hereunder shall not be assignable.
9. Licensed Real Estate Broker. Troutman represents
that certain principals of Troutman are real estate brokers,
licensed in the State of Colorado and are acting on their own
behalf as principals in regard to the transaction contemplated
herein.
-7-
(b) The State shall execute a quit claim deed to
Sullivan Hayes of the parcel described in Exhibit A.
(c) The State, in exchange for consideration in
the sum of $1,000.00 and related fees to be paid by
Sullivan Hayes, shall execute an appropriate easement
agreement for the benefit of the Larimer County Canal
#2 Irrigating Company, which easement shall be in the
form attached hereto as Exhibit D, and incorporated
herein by this reference.
The quit claim deeds shall be in the form attached hereto as
Exhibit E, and incorporated herein by this reference.
In witness whereof, the parties hereto have executed
this Agreement of Exchange for Relocation of Ditch on the
day and year first above written.
SULLIVAN HAYES INVESTMENTS, a
Colorado general partnership
By: l - GY—
Scn
STATE OF COLORADO BY AND THROUGH
THE BOARD OF LAND COMMISSIONERS
By:
Rowe Rogers, Pre 'dent
By:
Tommy Neal, e ister
I
- 2 -
IN WITNESS WHEREOF, the parties have executed this
Agreement on the dates specified below.
,� 2-) t6
Date
"TROUTMAN"
TROUTMAN PARTNERSHIP, a
Colorado general partnership
By:
ohn dward Hayes, II
Gen rat Partner
"FT. COLLINS ASSEMBLAGE"
FT. COLLINS ASSEMBLAGE, LTD
a Colorado limited partners
By:
General Partner
"GRIFFITHS"
Da5,e William R. Griffith- k a
W. Roland Griffith)
Date Elba R. Griffith
"BANK"
INTRA WEST BANK OF AURORA, N.A.,
a National Banking Association
By: i 4w6l� l/
Date Title: vreo-
r i
ME
a
EXHIBIT A
EXHIBIT B
EXHIBIT B-1
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
List of Exhibits
Legal Description of Troutman Parcel
Legal Description of Sliver Parcel
Sliver Parcel: Permitted Liens and Encumbrances
Legal Description of Troutman Parkway Parcel
Form of Promissory Note
Easement Agreement
Ratification and Subordination Agreement
CM
EXHIBIT A
To Agreement
(Legal Description of Troutman Parcel)
-10-
� fw C Ad's, "r 4 �.-, 7ro �.-4v.-.--. l ust e (
DESCRIPTION
The tract of land located in the Southwest Quarter of Section 36,
Township 7 North, Range 69 West of the 6th, Principal Meridian,
City of Fort Collins, Larimer County, Colorado, being more par-
ticularly described as follows:
Considering the West line of the South Half of the Southwest
Quarter of said Section 36 as bearing, North 0004'30" West and
with all bearings contained herein relative thereto:
Commencing at the Southwest corner of said Section 36; thence,
North 0"04'30" West along the West line of the South Half of the
Southwest Quarter, a distance of 870.16 feet; thence, North 89°
54'16" East, a distance of 50.00 feet to the Southwest corner of
a parcel of land as described in Reception No. 85009553 of the
Records of said County (subject to right-of-way dedication re-
corded in Book 1094 at Page 578 of the records of said County,
said point being the POINT OF BEGINNING; thence along the
Easterly right-of-way of South College Avenue the following
courses and distances, North 0°04'30" West, 452.86 feet; thence,
North 89'54'52" East, 1.66 feet; thence, North 0°02'24" East,
325.19 feet; thence, North 89°55'38" East, 2.70 feet; thence,
North 0°04'22" West, 148.60 feet to a point on the South right-
of-way of Troutman Parkway; thence along said South line the fol-
lowing 3 courses and bearings; North 89"55'38" East, 337.09 feet
to a point on a curve concave to the North having a central angle
of 12023'17", a radius of 1125.00 feet and a chord of which
bears, North 83°44'00" East, 242.77 feet; thence along the arc of
said curve 243.24 feet; thence, North 77"32'21" East, 298.92 feet
to a point on a curve concave to the Southwest having a central
angle of 85°00'00", a radius of 20.00 feet and the chord of which
bears, South 59°57'39" East, 27.02 feet; thence along the arc of
said curve, 29.67 feet to a point on the said West line of J.F.K.
Parkway; thence along said West line, South 17°27'39" East,
561.40 feet to a point on the West line of that certain parcel of
land, described in Book 2218, Page 1378,; thence along said West
line, North 49° 30'00" West, 122.60 feet to a point on a curve
concave to the Northeast having a central angle of 11° 20'14", a
radius of 833.06 feet and the chord of which bears, North 43°
49'53" West 164.57 feet; thence along the arc of said curve,
164.84 feet; thence, South 53°20'18" West, 261.27 feet; thence,
South 00005'44" East, 57.53 feet to the North line of the South
Half of the Southwest Quarter of said Section 36; thence along
said North line, North 89"54'52" East, 20.00 feet; thence. South
00°05'44" East, 294.80 feet; thence, South 89°54'52" West, 70.00
feet; thence. South 0005'44" East, 185.83 feet; thence, North 62°
35'44" West, 7.51 feet; to a point on a curve concave to the
South having a central angle of 27`30'00", a radius of 216.00
feet and a chord of which bears, North 76°20'44" West, 102.68
feet; thence along the arc of said curve 103.67 feet; thence,
South 89"54'16" West, 493.60 feet to the Point of Beginning.
The above described parcel of land contains 16.888 acres and is
subject to all easements and right-of-ways now on record or
existing.
EXHIBIT B
To Agreement
(Legal Description of Sliver Parcel)
-11-
IXGAI. IIESCRIPTION ATI`ACUFU TO AND FORMING A PART or OHDh:R :4): -G 5880-F C-11
A parcel of land located in the Southwest Quarter of Section 36. Township 7 North,
Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer. State of
Colorado being more particularly described as follows:
Considering the West line of the Southwest Quarter of said Section 36 as bearing
South 0'04'22" East, and with all bearings contained herein relative thereto:
Commencing at the West Quarter corner of said Section 36; thence, South 0'04'22"
East, 849.14 feet to a point on the Southerly line and the Westerly prolongation
thereof, of that certain parcel of land described in Book 1733, Page 558, record
of said County; thence along said Southerly line, North 89'55'38" East, 392.09
feet to the POINT OF BEGINNING, said Point of Beginning being on the Southerly
right-of-way line of Troutman Parkway and also being on a curve concave to the
North, having a central angle of 12'23'17", a radius of 1125.00 feet and the
chord of which bears North 83'44'00" East, 242.77 feet; thence along the arc of
said curve 243.24 feet; thence North 77'32'21" East, 77.45 feet to a point, said
point being the Southwesterly line of Troutman Parkway according to the Map of the
Heart Special Improvement District; thence South 23'41'05" East, 46.72 feet to a
point on the Southerly line of that certain parcel of land described in Book 1733.
Page 558, records of said County; thence along said Southerly line, South89'55'38"
West, 335.71 feet to the Point of Beginning.
County of Latimer,
State of Colorado.
fa
EXHIBIT B-1
To Agreement
(Sliver Parcel: Permitted Liens and Encumbrances)
1. Taxes for the year 1986, a lien, but not yet due and
payable.
2. All rights to any and all minerals, ore and metals of any
kind and character and all coal, asphaltum, oil, gas and
other like substances in or under said land, the rights of
ingress and egress for the purpose of mining, together with
enough of the surface of the same as may be necessary for
the proper and convenient working of such minerals and
substances, as reserved in Patent from the State of Colorado
recorded on January 9, 1919, in Book 378 at Page 546.
-12-
EXHIBIT C
To Agreement
(Legal Description of Troutman Parkway Parcel)
-13-
DESCRIPTION
A parcel of land located in the Southwest Quarter of Section 36,
Township 7 North, Range 69 West of the 6th P.M., City of Fort
Collins, County of Larimer, State of Colorado being more par-
ticularly described as follows:
Considering the West line of the North Half of the Southwest
Quarter of said Section 36 as bearing South 0' 04'22" East, and
with all bearings contained herein relative thereto:
Commencing at the West Quarter corner of said Section 36; thence,
South 0004'22" East, 849.14 feet to a point on the Southerly line
of the Westerly prolongation thereof, of that certain parcel of
land described in Book 1733, Page 558, record of said County;
thence along said Southerly line, North 89055'38" East, 50.00
feet to the POINT OF BEGINNING; thence North 890 55'38" East,
342.09 feet; thence 243.24 feet along the arc of a curve concave
to the north having a central angle of 120 23'17", a radius of
1125.00 feet; whose chord bears North 83o44'00" East, 242.77
feet; thence North 77032'21" East, 77.45 feet; thence North 230
41'05" West, 60.28 feet, thence North 18008'00" West, 41.08 feet;
thence South 7732'21" West, 61.66 feet; thence 221.62 feet along
a curve concave to the north having a central angle of 12o23117",
a radius of 1025.00 feet, whose chord bears South 83044'00" West,
221.19 feet; thence South 89055'38" West, 302.09 feet; thence
31.42 feet along the arc of a curve concave to the northeast
having a central angle of 90000'00", a radius of 20.00 feet,
whose chord bears North 45004'22" West, 28.28 feet; thence, South
89055'38" West, 20.00 feet; thence South 00004'22" East, 120.00
feet to the Point of Beginning.
The above described tract of land contains 62,459 square feet and
is subject to all easements now on record or existing.
Troutman Parkway on
Assemblage
EXHIBIT D
To Agreement
(Form of Promissory Note)
PROMISSORY NOTE
U.S. $ Denver, Colorado
December , 1986
For value received, the undersigned ("Borrower")
promises to pay Ft. Collins Assemblage, a Colorado lim ted
partnership ("Noteholder"), the principal sum of
U.S. DOLLARS ($ ),
without interest. Principal and interest shall be payable at
, or
such other place as Noteholder may designate, in a single payment
of U.S. DOLLARS
($ ), due on this date shall be determined pursuant to
Article I%_of the Road Construction A reement , 19
—_
Reference is made to that certain Agreement, dated November ,
1986, between Borrower, Noteholder, IntraWest Bank of Aurora,
N.A. and others (the "Agreement"). In the event a road is not
constructed as set forth in subparagraph 2(c) of the Agreement,
then the indebtedness evidenced hereby shall be forgiven, this
Note marked cancelled and returned to Borrower.
If default be made in the payment of principal due on
this Note, and if such default shall continue for a period of
thirty (30) days after the date due, the entire principal sum
outstanding, shall at once become due and payable at the option
of Noteholder without further notice. Failure to exercise any of
the options aforementioned shall not constitute a waiver of the
right to exercise the same in the event of any subsequent
default. After default, the entire indebtedness shall accrue
interest at the rate of 10% per annum. If Noteholder employs
counsel for advice with respect to a default, or to intervene,
file a petition, answer, motion or other pleading in any suit or
proceeding relating to this Note or to attempt to collect or
enforce this Note against Borrower or any other party, then, in
any such event, all of the reasonable attorneys' fees resulting
from such services, and all expenses, costs, and charges relating
thereto, shall be an additional liability owing by Borrower to
Noteholder, payable on demand and bearing interest, from the date
of such demand until payment thereof, at the rate of 10% per
annum.
Borrower may prepay the principal amount outstanding
under this Note, in whole or in part, at any time without payment
of a prepayment premium.
All agreements between Borrower and Noteholder expressly
are limited so that in no event whatsoever shall the amount paid
or agreed to be paid by Borrower to Noteholder hereunder exceed
the highest lawful contractual rate of interest permissible under
the law which a court of competent jurisdiction, by a final order
which is not appealed or is non -appealable, determines is
applicable to this Note. If fulfillment of any provision of this
Note at the time performance of such provision becomes due
involves exceeding such highest lawful contractual rate, then
such obligation shall be reduced to such highest lawful
contractual rate. If by any circumstance Noteholder shall ever
receive as interest an amount which exceeds such highest lawful
-14-
LIST OF EXHIBITS
Exhibit
A -
Legal
Description,
"Sullivan Hayes Parcel"
Exhibit
B -
Legal
Description,
"Realigned Ditch"
Exhibit C - Site Plan
Exhibit D - Form of Easement
Exhibit E - Form of Quit Claim Deeds
contractual rate, any amount which may be deemed excessive
interest shall be applied as payment of the principal of the
indebtedness evidenced hereby and not as payment of interest.
The terms and provision of this paragraph shall control all other
terms and provisions contained in this Note and the Deed of
Trust. If any provision of this Note or the application thereof
to any party or circumstance is held invalid or unenforceable,
all remaining provisions and the application of such provisions
to other parties or circumstances shall not be affected thereby,
the provisions of this Note being severable in any such instance.
Presentment, notice of dishonor, and protest are hereby
waived by Borrower and all other makers, sureties, guarantors,
and endorsers hereof. This Note shall be the joint and several
obligation of Borrower and all other makers, sureties,
guarantors, and endorsers, and their successors and assigns.
Any notice to Borrower provided for in this Note shall
be in writing and shall be given and be effective upon
(a) delivery to Borrower, or (b) mailing such notice by certified
mail, return receipt requested, addressed to Borrower at
Borrower's address stated below, or to such other address as
Borrower may designate by notice to Noteholder. Any notice to
Noteholder shall be in writing and shall be given and be
effective upon (i) delivery to Noteholder, or (ii) by mailing
such notice by certified mail, return receipt requested, to
Noteholder at the address stated in the first paragraph of this
Note, or to such other address as Noteholder may designate by
notice to Borrower.
This Note may not be amended or modified, nor shall any
revision hereof be effective, except by an instrument in writing
expressing such intention executed by Noteholder and Borrower.
The validity, enforcement, interpretation, Construction,
effect and all other aspects of this Note and all matters
pertaining thereto, including without limitation, the legality of
interest charged hereunder, shall be determined according to the
statutes, laws and decisions of the State of Colorado.
TROUTMAN PARTNERSHIP,
a Colorado general partnership
By:
John Edward Hayes II
General Partner
By:
James Michael Sullivan
General Partner
Address: 1600 Stout Street
Suite 1800
Denver, Colorado 80202
-15-
EXHIBIT E _ f
To Agreement
(Easement Agreement)
This Easement Agreement ("Agreement"), dated November
1986, is between Ft. Collins Assemblage, Ltd., a Colorado
limited partnership ("Grantor") and Larimer County Canal No. 2
Irrigating Company ("Ditch Company") and the city of Fort
Collins, Colorado ("City") (City and Ditch Company may be
collectively referred to herein as "Ditch Easement Grantees") and
Troutman Partnership, a Colorado general partnership
("Troutman").
RECITALS
A. Grantor is the legal and equitable owner of that
certain real property described in Exhibit I, which is attached
hereto and incorporated herein by this reference (the "Grantor
Parcel"). Troutman is the owner of that certain real property,
adjacent to the Grantor Parcel on the north, described in Exhibit
II, which is attached hereto and incorporated herein by this
reference (the "Troutman Parcel"). Ditch Company is a Mutual
Irrigation Company and owner of the Larimer County Canal No. 2
(the "Ditch"); City is a Municipal Corporation. The Ditch shall,
upon this grant of easement, cross that portion of the Grantor
Parcel described in Exhibit III, attached hereto and incorporated
herein by this reference (the "Easement Area").
B. The Ditch currently crosses over a portion of the
Grantor Parcel. Grantor and Troutman desire to increase the
capacity of said currently existing portion of the Ditch in order
to handle drainage waters to be added to the Ditch by the City.
Grantor desires to grant to Troutman the appropriate easements to
facilitate the widening of a gunite lining upon the Current Ditch
Area in order to increase its capacity as aforesaid. Grantor
desires to grant to Troutman a temporary easement to facilitate
Construction of the Ditch and appropriate access. road over anT
across the Transition Easement Area.
C. Grantor desires to grant to Ditch Easement Grantees
a perpetual, non-exclusive easement over and across the
Transition Easement Area and Current Ditch Area for the purpose
of using and maintaining the Ditch for transportation, conveyance
and drainage of water and an access road providing access to said
ditch, all subject to the terms and conditions set forth in this
Agreement.
D. Grantors desire to grant to Troutman a perpetual,
non-exclusive easement over and across the portion of the Grantor
Parcel described on Exhibit IV, attached hereto and incorporated
herein by this reference, ("Slope Easement Area") for the
Construction and maintenance of a slope (the "Slope") as
hereinafter described.
NOW, THEREFORE, for One Hundred Thousand Dollars and
other good and valuable consideration, the receipt and
sufficiency of which are hereby confessed and acknowledged, the
parties hereby agree as follows:
1. Grant of Construction Easement. Grantor hereby
grants to Troutman, a non-exclusive easement ("Construction
Easement") for the benefit of Troutman and the Troutman Parcel
for h cular and pedestrian access over, on, across, under and
through the 'Transition Easement Area, the Slope Easement Area and
the Current Ditch Area, as well as those portions of the Grantor
Parcel which are fifty (50) feet wide and adjacent to the West
side of the Easement Area, for Construction and maintenance as
shall be reasonably necessary to prosecute Construction of and
-16-
,\ l
upon the Ditch and the Slope as aforesaid. The Construction
Easement may be utilized by vehicles transporting Construction
materials, by persons employed in connection with any
Construction work provided for herein, including temporary
storage of materials and vehicles being utilized in connection
with that Construction. The Construction Easement granted
pursuant to this paragraph shall commence upon the effective date
hereof and continue until Construction of the Ditch and the Slope
are complete.
2. Grant of Ditch Easement. Grantor hereby grants to
Ditch Easement Grantees, their successors and assigns, a
permanent, perpetual and non-exclusive easement (collectively the
"Ditch Easement") over and across the Easement Area for the
Constr— uctio and maintenance, and passage of water through the
Ditch, and an access road providing access to the Ditch, for use
by Ditch Easement Grantees, their successors and assigns, in the
transportation and flow of irrigation and drainage water owned by
the Ditch Company, its shareholders, purchasers, customers,
successors and assigns, or for drainage waters contributed to the
Ditch by the City, together with a right of access, ingress and
egress over and into 'the Easement Area for purposes of
Construction, inspection, repair and maintenance of the Ditch and
Access Road.
3. Grant of Slope Easement. Grantor hereby grants to
Troutman, its successors and assigns, a permanent, perpetual,
non-exclusive Slope Easement for the construction and permanent
placement of a Slope with a grade of approximately 4:1 over the
Slope Easement Area, together with a perpetual, non-exclusive
easement for the drainage of naturally flowing waters down and
across the Slope Easement Area, and from the Slope Easement Area
onto and across the Grantor Parcel.
4. Drainage; Seepage Damage. Grantor hereby
acknowledges the easements granted herein contemplate the
relocation of the Ditch from one portion of the Grantor Parcel to
another, and that such relocation necessarily will result in a
change in the drainage patterns across the Grantor Parcel.
Grantor further hereby waives any claim or cause off action
whatsoever against that the Ditch Company for any damages
resultant from seepage from the Ditch as the same traverses the
Grantor Parcel.
5. Miscellaneous.
(a) All grants of easements contained in this
Agreement shall run with the Grantor Parcel for the benefit of
the Troutman Parcel and shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
successors and assigns.
(b) Grantor and Troutman hereby acknowledge that
the relocation and expansion of the Ditch are mutually beneficial
to both Grantor and Troutman in that the same facilitates the
future development of both the Grantor Parcel and Troutman
Parcel.
(c) This Agreement shall be interpreted, construed
and enforced in accordance with the laws of the State of
Colorado.
(d) If any provisions of this Agreement or the
application thereof to any person or circumstance shall be deemed
to be invalid or unenforceable to any extent, the remainder of
this Agreement and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall
be enforceable to the greatest extent permitted by law.
-17-
(e) Time is of the essence with respect to each
and every covenant, Agreement and obligation of the parties to
this Agreement.
(f) In the event any party hereto shall incur
attorney's fees in the enforcement of this Agreement, the party
not prevailing in any such action shall pay the reasonable
attorney's fees of the prevailing parties.
NOW, THEREFORE, Grantor has executed this Easement
Agreement on the day and year first above written.
GRANTOR:
Ft. COLLINS ASSEMBLAGE, LTD., a
Colorado limited partnership
By: �
William/((. Strickfaden
General Partner
STATE OF COLORADO)
) ss.
County of )
The foregoing Easement Agreement was acknowledged before
me this day of , 19 by William K.
Strickfaden as General Partner of Ft. Collins Assemblage, Ltd., a
Colorado limited partnership, on behalf of the partnership.
My commission expires:
Notary Public
MY"
Exhibit I
Exhibit II
Exhibit III
Exhibit IV
LIST OF EXHIBITS
To
EASEMENT AGREEMENT
Legal
description
- Grantor Parcel
Legal
description
- Troutman Parcel
Legal
description
- Easement Area
Legal
description
- Slope Easement Area
-21-
LGLAL De"OUPIt..r �CRAt�rfoc tk:s.��`
Considering the South line of Section 36, Township 7 North, Range 69 West
of the 6th P.M., as bearing N 89053' E. 2648.75 feet with all bearings
contained herein relative thereto: Beginning at the S 1/4 corner of said
Section :36; thence along the South line of said Section 36, S 89053' W,
996.65 feet; thence N 0012' W., 30.00 feet to the true point of beginning,
said true point of beginning being on the North line of the existing County
Road; thence along said North line S. 89053' W. 1108.24 fast; thence N 130
14'03" E. 192.53 feet; thence N. 7u27'33" E. 95.97 feet; thence N 0029'58" E.
347.58 feet; thence N. 45011'38" E. 152.89 feet more or less to the North
line of lands of Rowland Griffith; thence along said North line E. 937.63 feet
more or less to a line which bears S. 0012100" E. and passes through the true
point of beginning; thence along said line S. 0012100" E. 735.63 feet more or
less to the true point of beginning. ALSO, Begin at a point 30 feet North of
the S1/4 corner of Section 36, Township 7 North, Range 69 West of.6th P.M.,
thence S 89053" W 996.65 feet; thence N. 0012'00" W. 735.63 feet; thence East
parallel to the South line of said SW 1/4 to a point on the East line of SW 1/4,
which point is 763.60 feet North of said S1/4 corner; thence South along the
East line of said SW1/4 to the true point of beginning; EXCEPT beginning
30 feet North of the S 1/4 corner of said Section 36, thence S. 89053" W.
296.65 feet; thence N 0012'00" W. 734.21 feet; thence East parallel with
the South line of said SW 1/4, 296.65 feet to East line of said SW 1/4;
thence South along said line to the true point of beginning.
County of larimer,
State of Colorado.
,, N
LriP*A- 17b3c/Ltp'j.o,� s-f
DESCRIPTION
" 4-0 o (A^ A oV QiKLct L 4
The tract of land located in the Southwest Quarter of Section 36,
Township 7 North, Range 69 West of the 6th, Principal Meridian,
City of Fort Collins, Larimer County, Colorado, being more par-
ticularly described as follows:
Considering the West line of the South Half of the Southwest
Quarter of said Section 36 as bearing, North 0'04'30" West and
with all bearings contained herein relative thereto;
Commencing at the Southwest corner of said Section 36; thence,
North 0'04'30" West along the West line of the South Half of the
Southwest Quarter, a distance of 870.16 feet; thence, North 89'
54'16" East, a distance of 50.00 feet to the Southwest corner of
a parcel of land as described in Reception No. 85009553 of the
Records of said County (subject to right-of-way dedication re-
corded in Book 1094 at Page 578 of the records of said County,
said point being the POINT OF BEGINNING; thence along the
Easterly right-of-way of South College Avenue the following
courses and distances, North 0'04'30" West, 452.86 feet; thence,
North 89'54'52" East, 1.66 feet; thence, North 0'02'24" East,
325.19 feet; thence, North 89'55'38" East, 2.70 feet; thence,
North 0'04'22" West, 148.60 feet to a point on the South right-
of-way of Troutman Parkway; thence along said South line the fol-
lowing 3 courses and bearings; North 89'55'38" East, 337.09 feet
to a point on a curve concave to the North having a central angle
of 12'23'17", a radius of 1125.00 feet and a chord of which
bears, North 83044'00" East, 242.77 feet; thence along the arc of
said curve 243.24 feet; thence, North 77'32'21" East, 298.92 feet
to a point on a curve concave to the Southwest having a central
angle of 85'00'00", a radius of 20.00 feet and the chord of which
bears. South 59'57'39" East, 27.02 feet; thence along the arc of
said curve, 29.67 feet to a point on the said West line of J.F.K.
Parkway; thence along said West line, South 17027'39" East,
561.40 feet to a point on the West line of that certain parcel of
land, described in Book 2218, Page 1378,; thence along said West
line, North 49' 30'00" West, 122.60 feet to a point on a curve
concave to the Northeast having a central angle of 11' 20'14", a
radius of 833.06 feet and the chord of which bears, North 43'
49'53" West 164.57 feet; thence along the arc of said curve,
164.84 feet; thence, South 53'20'18" West, 261.27 feet; thence,
South 00'05'44" East, 57.53 feet to the North line of the South
Half of the Southwest Quarter of said Section 36; thence along
said North line, North 89'54'52" East, 20.00 feet; thence, South
00'05'44" East, 294.80 feet; thence, South 89'54'52" West, 70.00
feet; thence, South 0005144" East, 185.83 feet; thence, North 62'
35'44" West, 7.51 feet; to a point on a curve concave to the
South having a central angle of 27'30'00", a radius of 216.00
feet and a chord of which bears, North 76'20'44" West, 102.68
feet; thence along the arc of said curve 103.67 feet; thence,
South 89'54'16" West, 493.60 feet to the Point of Beginning.
The above described parcel of land contains 16.888 acres and is
subject to all easements and right-of-ways now on record or
existing.
DESCRIPTION OF DRAINAGE EASEMENT
An easement on, over and across a parcel of land located in the
Southwest Quarter of Section 36, Township 7 North, Range 69 West
of the 6th Principal Meridian, City of Fort Collins, Larimer
County, Colorado, being more particularly described as follows:
Considering the South line of the Southwest Quarter of said Sec-
tion 36 as bearing, North 89*53100" East from a found 3" brass
cap in a range box at the Southwest corner of said Section 36 to a
found Number 4 rebar with cap at the South Quarter corner of said
Section 36 (2648.75 feet) and with all bearings contained herein
relative thereto:
Commencing at the Southwest Corner of said Section 36; thence
along the South line of said Southwest Quarter North 89053'00"
East, 543.79 feet; thence, North 00'07'00" West, 30.00 feet to
the POINT OF BEGINNING, said point being on the North right-of-
way line of State Highway 68 (Harmony Road); thence along said
North line, South 89053'00" West, 73.75 feet to the Southwest
corner of a Permanent Easement described in Book 1431, Page 743
records of said County; thence along the West line of said Per-
manent Easement, North 00°07'00" West, 50.00 feet; thence along
the North line of said Permanent Easement, North 89°53'00" East,
59.92 feet; thence, North 13014'03" East, 145.81 feet; thence,
North 07°27'33" East, 93.19 feet; thence. North 00°29'58" East,
399.42 feet; thence, North 25°12'10" East, 103.22 feet to a point
on the South line of a parcel of land described in Reception No.
85009553 records of said County; thence along said South line,
South 51°56'00" East, 63.27 feet; thence, continuing on said
South line, South 90°00'00" East, 39.46 feet; thence along the
West line of a parcel of land described in Book 1425, Page 788
the following 4 courses and distances; South 45°11'38" West,
153.20 feet; thence, South 00°29'58" West, 347.58 feet; thence,
South 07°27'33" West, 95.97 feet; thence, South 13414103" West,
192.53 feet to the Point of Beginning.
The above described drainage easement contains 0.637 acres more
or less and is subject to all easements and rights -of -way now on
record of existing.
i.-s"
FYI-1%RIT 1LL
It 0 PF 6,ftr,MFnrr h'ftFA
DESCRIPTION
A parcel of land located in the south half of the Southwest
Quarter of Section 36, Township 7 North, Range 69 West of the 6th
P.M., City of Fort Collins, County of Larimer, State of Colorado
being more particularly described as follows:
Considering the West line of the south half of the southwest
Quarter of said Section 36 as bearing N00°04'30"W and with all
bearings contained herein relative thereto:
Commencing at the southwest corner of the south half of the
southwest quarter of said Section 36; thence N00004'30"W along
the west line of the south half of the southwest quarter, a dis-
tance of 870.19 feet; thence N89055'30"E, a distance of 50.00
feet to the southwest corner of a parcel of land as described in
reception no. 85009553 of the records of said county (subject to
right-of-way dedication recorded in Book 1094 at Page 578 of the
records of said county, thence N89054'16"E, 299.08 feet, along
the south line of said parcel, to the northwest corner of the
parcel of land as described in reception no. 139548 of the
records of said county, said point being the TRUE POINT OF
BEGINNING:
Thence along the north line of said parcel N89054'16"E, 194.52
feet; thence S51056'00"E, 32.37 feet; thence S89054'16"W, 219.97
feet, to a point on the west line of said parcel; thence along
the west line of said parcel 20 feet to the Point of Beginning.
The above described parcel contains 4145 square feet and is sub-
ject to all easements and rights -of -ways now on record or
existing.
EXHIBIT F
To Agreement
(Form of Recoqnition and Subordination Agreement)
RECOGNITION AND SUBORDINATION AGREEMENT
This Recognition and Subordination Agreement
("Agreement"), dated , 1986, is by IntraWest Bank
of Aurora, N.A., a National Banking Association ("Bank") to
Troutman Partnership, a Colorado general partnership
("Troutman").
RECITALS:
A. Ft. Collins Assemblage, Ltd., a Colorado limited
partnership ("FCAL") and Troutman entered into that certain Road
Construction Agreement, dated October 15, 1986, and recorded on
July 15, 1986 in the Office of the Clerk and Recorder for the
County of Larimer, State of Colorado at Reception No. 86038139
("Road Construction Agreement") pursuant to which FCAL granted to
Troutman certain construction and permanent easements and
promised to irrevocable dedicate to the City of Fort Collins
certain real property described on Exhibit A, which is attached
hereto and incorporated herein by this reference (the
"Property").
B. On January 27, 1986, FCAL borrowed funds from the
Bank, which loan was secured by a Deed of Trust from FCAL for the
benefit of the Bank, dated January 27, 1986 and recorded in the
Office of the Clerk and Recorder for the County of Larimer, State
of Colorado, at Reception No. 86006541 (the "Prior Deed of
Trust").
C. On November , 1986, Troutman, FCAL, the Bank and
others entered into an Agreement pursuant to which the Bank
agreed, interalia, to acknowledge the Road Construction Agreement
and to subordinate the lien of the Prior Deed of Trust to the
obligations of the Road Construction Agreement which run with the
land.
NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt and
sufficiency off which are hereby confessed and acknowledged, the
Bank agrees as follows:
1. The Bank hereby acknowledges the existence of the
Road Construction Agreement and hereby agrees to subordinate and
does hereby subordinate:
(a) All of its right, title and interest in and to
the Property pursuant to the Prior Deed of Trust, and any
modifications, replacements, renewals or extensions of the Prior
Deed of Trust;
(b) The priority, enforcement and payment of the
Prior Deed of Trust.
The Bank hereby agrees and declares that all of its
right, title and interest in and to the property under the Prior
Deed of Trust to be inferior and subordinate to the rights of
Troutman, its successors and assigns in and to the real property
pursuant to the Road Construction Agreement.
The Bank further agrees to execute and deliver to
Troutman such assignments or other instruments as may be required
by Troutman in order to enable Troutman to enforce any and all of
its rights pursuant to the Road Construction Agreement. This
-19-
EXHIBIT A
Legal Description
"Sullivan Hayes Parcel
- 3 -
Agreement shall be governed and construed in accordance with the
laws of the State of Colorado. This Agreement shall be binding
on the Bank, its successors and assigns, and shall inure to the
benefit of Troutman and its successors and assigns. This
Agreement may not be amended except in a writing signed by
Troutman and the Bank.
In the event a road is not constructed upon the Property
within twelve (12) months after Troutman's receipt of fee title
to the real property adjacent to the Property on the South, then
this subordination shall terminate, and the Prior Deed of Trust
shall regain its priority as if this Agreement had not been
executed.
Date:
STATE OF COLORADO)
INTER WEST BANK OF AURORA, N.A.
a National Banking Association
By:
Title:
ss.
County of )
The Fo—regoing Easement Agreement was acknowledged before
me this _ day of , 19 by
as of InterWest Bank
of Aurora, N.A., a National Banking Association.
My commission expires:
Notary Public
-20-
Know nli Pen Oy these pr :nts; that the undersigned, L ng owners of nli
the following described land to wits-
-The tract of land located In the Southwest (lunrter of Section 36. Township 7
North, Range 69 HnsL of the 6th, Principnl Meridian, City of Fort Collins,
_Larimer County, Colorado., being more particularly described as follows:
Considering the Hest line of the South Half of the Southwest tl.rarter of said
Section 36, as hearing North U' U4' 30" West and with all hearings
contained herein relative thereto:
Commencing at the Southwest corner of the South half of life Southwest
Quarter of said Section 36; thence, North 0' U4' 3U" Vest along the West
line of the South half of the Southwest Ouorter, a distance of 87U.19 feet;
thence, North 89' 54' 16" Fast, a distance of 50.OU feet to life Southwest
corner of a parcel of land as described in Receptirm No. 115M9553 of the
records of Bald county (subject to right-of-way dedication recorded in Rook
1094 at Page 578 of the, records of said County, sold point being the PUIN'f
OF HRGINNINC.; thence nlon; Lite Easterly right-of-way of South college
Avenue the following courses and distances. North 0' U4' 30" Nest, 452.86
feet; thence, .forth 89' 54' 52' Fnst, 1.66 feet; thence, Forth 0' 02' 24"
Fast. 325.19 feet; lllence, North 89' 55' 38" r,:ist, 2.7U feet; thence,
North U' 04' 22" Nest. 148.60 feet; thence South 89' 55' 36" Nest, 5.(x)
feet; thence, North 0* Ur.' 22" Nest. 12U.00 feet; thence departing; from
said right-of-way, North 89' 55' 38 " Fast, 2U.UU feet; thence 31.42 feet on
the arc of a eurvo to the left with o central angl! of We 00' LV's a radius
of 2U.00 feel and a chord which burs. South 45' 04' 22" I•ast, 211.28 feet;
thence. North 89' 55' 38" FA-qt. 303.74 feet; thencr, 221.62 feet on the arc
of a curve to the left with a central angle.of 12' 23' 17", n rndlue of
1025.UU feet; and n chord %hich bears North 83' 44' (Al" Fast. 221.19 feet;
thence. North 77' 32' 21" Fiist, 60.(M) feet; thence, South 18' 08' UU" Fast,
40.72 feet; thence South 23' 41 ' 05" Fnst, U1.64 feet; thence. North 77'
32' 21" East. 223.02 feet; thence. 29.07 feet on the arc of a curve to the
right with a centrnl angle of 85' 00' OU". n radius of 2(3.()U feet, and n
chord which bears, Surtth 59' 57' 39" Fast. 27.U2 feet; thence, South 17'
27' 39" Fast, 2112.05 feet; thence. South 53' 2U' 113" liest, 392.211 feet;
thence. South U' 05' 44" 1•;nst, 342.27 feet; thence. South It9' 54' 52"
70 M) feet; thence South 0' 05' 44" I:nst, IH5.83 fret; thence. Horth 62'
35' 44" Nest. 7.51 felt; thence. 1113.67 fact on Lite nrr of a curve to Off:
left with a central angle of 27' 30' M". a radius of 216.tx) fret and a
chord 4hich bears North 76' 20' 44" Nest. 102.6,3 ferlt.; thence. South 1;')'
54' 16" Nest. 493.6U lest to the Point of flepinning.
The above described tract contains 18.06 acres., more or less. and 1s subject
lo•all cnsomcnts, ri8lits-of-wny, or restrictions as now on record.
EXHIBIT B
Legal Description
"Realigned Ditch"
- 4 -
A parcel of land located in the Southwest Quarter of Section 36, Township 7
North, Range 69 West of the 6th P.H., City of Fort Collins, County of
Larimer. State of Colorado being more particularly described as follows:
Considering the West line of the Southwest Quarter of said Section 36 as
bearing South 0' 04' 22" East$ end with all bearings contained herein
relative thereto:
Commencing at the West Quarter corner of said Section 36; thence, South 0'
04 22 East, 849.14 feet; thence, North 89' 55' 38" East, 393.74 feet to a
Point on a curve concave to the North having a central angle of 12' 23' 17",
a radius of 1125.00 feet and the chord of which bears North 83' 44' 00"
East. 242.77 feet; thence along the arc of said curve 243.24 feet= thence
North 77' 32' 21" East, 257.03 feet; thence, South 17' 27' 39" Eset, 8.03
feet to the POINT OF BEGINNING, said Point of Beginning being on the
Westerly line of the Larimer Canal #2 Ditch and the southerly line of an a-
foot utility�aasement; thence. South 17' 27' 39" East. 242.25 feet; thence,
South 53 20 18 West. 387.48 feet; thence, South 0' 05' "" East. 379.98
feet; thence, North 89' 54' 52" East. 50.00 feet; thence. North 0' 05' 44"
'AWest, 352.33 feet; thence. North 53' 20' 18" East. 400.76 feet to a point
on the Westerly line of an 8-foot utility easement; thence. North 17' 27'
39" West, 263.66 feet to a point on a curve concave to the Southwest, having
a central angle of 85' 00' 00", a radius of 12.00 feet, and the chord of
which bears North 59' 57' 39" West, 16.21 feet; thence along the are of said
curve 17.80 feet; thence, South 77. 32' 21" West, 41.20 feet to the Point of
Beginning.
The above described parcel contains 1.199 acres and is subject to all
easements and rights -of -ways now on record or existing.
MAj.14xd:•a CANRL 12o,m) Fz)r.3TATE