HomeMy WebLinkAboutRAINTREE COMMERCIAL PUD - Filed OA-OTHER AGREEMENTS - 2008-06-06M
Pacific Guaranty Retail Development Corporation
14180 Dallas Parkway, Suite 400
Dallas, Texas 75240
3279/049
February 19, 1986
City of Fort Collins
300 Laporte Avenue
Fort Collins, Colorado 80522
Attention: Stephen J. Roy, Esq.
Re: Proposed construction of storm drainage system servicing
Raintree P.U.D. by Pacific Guaranty Retail Development
Corporation
Gentlemen:
This letter of agreement will evidence our understanding with regard
to certain construction to be undertaken by Pacific Guaranty Retail
Development Corporation ("Pacific") involving the installation of a storm
drainage system (the "Work") affecting property owned by Pacific within the
Raintree Planned Unit Development (the "Raintree Property") and property
owned by the City of Fort Collins, Colorado (the "City") which is
currently being used as a park (the "Park Property"). In particular,
Pacific has requested that the City permit Pacific to commence that portion
of the Work which affects the Raintree Property immediately upon execution
of this letter, and to commence that portion of the Work which affects the
Park Property upon the effective date of City approval for an easement
across the Park Property as may be necessary for the Work (the "Easement").
The Easement shall be in a form satisfactory to the City. It is anticipated
that the request for the Easement will be considered for approval on March
4, 1986 and that, subject to approval by the City Council and the
satisfaction of certain post -approval requirements pertaining to public
notice and the public's right to object to the actions so taken, the
Easement will be effective on March 15, 1986. In consideration of the
exchange of mutual promises recited below and other good and valuable
consideration, the parties agree as follows:
aK2us2 Fco3gg
) ss.
County of Larimer )
The above anc foregoing t was acknowledged
befe t�is� r men
day of
n1980 by
Enterprises, a Colorado as partner of Realty Brokers
ASSOCIATES, a Colorado general
as general partner of
general partnership.
ess my hand and official seal.
ammission Expires:
otarry P M Public
n %
STATE
STATE OF COLORADO
ss.
County of Larimer )
The above and foregoing agreement was acknowledged be-
fore me this %ic, day of Or,. ;:.; 1980 by Louis
F. Swift, as President, and attested to by William C. Stover,
as Secretary, of THE NEW MERCER DITCH COMPANY, a Colorado
mutual irrigation corporation.
s my hand and official seal.
emission Expires: i!"-c16_.
Notaryr Public
7-
4U rbo j 7 u 392794
r )s 3:Ofl
Y�CeJ (J� 3�VCOU!dTy OF LA11"4r-R STATE OF COLORADO
' A G R E E M E N T
THIS AGREEMENT made and entered into this day of
1980 by and between
RAINTREE ASSOCIATES,
a Colorado general partnership,
hereinafter designated as "applicant", and
THE NEW MERCER DITCH COMPANY,
a Colorado mutual irrigation corporation,
hereinafter designated as "ditch company."
PROJECT
Disposal of storm water drainage from Raintree Planned
Unit Development on 37.39 acres located at or near the NW corner
of Shields Street and Drake Road, in the SE 1/4 of Section 22,
Township 7 North, Range 69 West of the 6th P.M.
WITNESSETH:
WHEREAS, applicant is the developer of a planned unit
development as set forth above, and ditch company is the owner
and operator of an irrigation canal abutting upon said development,
mostly on the northerly side thereof, and both parties are desirous
of having said development designed in such a manner as to prevent
drainage water from entering into the irrigation canal; and
WHEREAS, the parties hereto have entered into a previous
!::..._ landscape and design agreement recognizing the right-of-way of
the ditch company's canal and maintenance and access thereto,
and such agreement between the parties hereto, dated the 31st day
Of n,.r.,r,e. , 1980 and recorded in Book 2092 at page 390 of
the Larimer County Records, is specifically incorporated into this
agreement for interpretive purposes; and
WHEREAS, applicant has had a storm water drainage report
prepared by Taranto, Stanton & Tagge, Consulting Engineers, dated
April, 1980, consisting of four (4) pages and numerous attachments.
Reference to that report is hereby made, and by this reference the
report is incorporated in this agreement. This agreement is -
intended to provide for implementation of some of the recommendations ''�
.3K2093 POO 5 4
contained in such report; and
WHEREAS, attached hereto as Exhibit A is a plat of Raintree
Planned Unit Development, dated May 23, 1980, consisting of Sheets
1, 2 and 4 of four sheets and Sheets 25, 26, 27 and 33 of 34 sheets,
approved by officials of the City of Fort Collins, Colorado on
May 27, 1980, which exhibit is incorporated herein as though fully
set out herein; and
WHEREAS, the above -listed exhibit items and report specifically
set forth all of the plans, specifications and terms of this grant
and shall in no way be modified or changed by any subsequent or
related plans or materials not included herein unless agreed to
in writing by the parties hereto; and
WHEREAS, ditch company is willing to grant to applicant
the right to construct the necessary facilities for such storm
drainage plan as set forth in Exhibit A upon terms and conditions
hereinafter set forth; and
WHEREAS, one or more homeowners associations will be formed
by applicant, and upon completion thereof in accordance with said
Exhibit A and approval by the ditch company, such homeowners
association(s) will assume the future maintenance of the project.
NOW, THEREFORE, in consideration of the premises and the
terms of the within agreement, it is agreed as follows;
1. That Exhibit A and the preamble above are an essential
part of this agreement and the statements therein binding upon the
parties to this agreement.
2. Ditch company grants unto applicant the right to construct
said storm water drainage facilities under the existing ditch of
the ditch company and further grants unto applicant and eventually
the homeowners association(s) the reasonable right of ingress and
egress to parts of its ditch as shall be reasonably necessary for
the exercise of the rights granted herein.
3. Applicant has paid to ditch company a total permit fee
of Seven Hundred and No/100 ($700.00) Dollars for this grant.
4. Applicant will, upon the completion of the project,
furnish to ditch company and the homeowners association(s) an
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W 0 9 3 PG0542
"as built" exhibit further supplementing in final form the work
described in the attached exhibit. APPLICANT SHALL ALSO PAY
ditch company's reasonable expenses incurred in having its engineers
make a physical examination of the completed project to determine
its compliance with the plans, specifications and modifications.
The grant by the ditch company of rights hereunder shall not be
effective and binding upon the ditch company until satisfactory
completion of this inspection and approval by the engineers and
payment of the additional reasonable charges of the engineers for
making such inspection, including travel to and from the project
from the engineers' Denver office.
S. The construction herein contemplated shall be in strict
accordance with the plans set forth in the attached exhibit. Any
excavation or changes in the present ditch where concrete is not
provided for, shall be backfilled, compacted and stabilized to
the entire satisfaction of the ditch company. All compaction for
dikes shall be done at ninety-five (95%) percent standard Proctor
density. The dikes shall be in conformance with the plans for
construction of the detention pond. Said work shall be done only
after timely notification given to the superintendent or other
designated agents of the ditch company.
6. All construction shall be commenced and completed at
such times as shall not interfere with the regular flow of water
of the ditch company during the irrigation season.
7. In addition to the inspection called for in paragraph
"6." above, upon completion of the project, the applicant shall
promptly notify the ditch company and the homeowners association(s);
and the parties shall jointly inspect the project. If there are
any deficiencies in the work of the applicant or other variations
from the plans set forth in the exhibit, the applicant shall
forthwith remedy the same; and in doing so, the applicant shall
meet all reasonable requirements of the ditch company for the
protection of its ditch and surrounding property.
B. Applicant, on behalf of itself and its successors and
assigns, waives all seepage or overflow damage from said ditch
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%L rcn 5 y
on the lands of applicant except that which may be caused by the
negligence of the ditch company, and agrees that such waiver of
liability shall be a covenant running with the land and included
in deeds to any subsequent grantees of applicant's land.
9. The project shall be without cost to the ditch company
and the applicant shall hereby indemnify and forever hold the
ditch company harmless from liability for damages caused by the
project.
10. Ditch company shall have full power to operate and
maintain its ditch as if this agreement had not been made; and
any expenses caused thereby to the applicant shall not be chargeable
to the ditch company.
11. In the event either of the parties hereto shall be in
default in any of their covenants herein so as to require the
party not in default to retain counsel to attempt to enforce the
covenants by negotiations or otherwise, or to commence legal or
equitable action against the defaulting party, the defaulting
party agrees to pay all reasonable expenses incurred for such
enforcement and/or litigation by the enforcing party, including
but not limited to docket fees, depositions and reasonable
attorney's fees.
THIS AGREEMENT shall extend to and be binding upon the
heirs, successors and assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first hereinabove written.
RAINTREE ASSO T S,
a Colorado nera partnership,
By: REALT BRO% RS ENTERPRISES,
a Col rado artn rsh
g�j
ene al p rtne �^�7
By: ✓
THE NEW MERCER DITCH COMP&Y,
a CIo lorad mut a -i-ft ti 4corporation,
'Lou s F, Swi t, pres ept`
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2U3 PG 5 y U
STATE OF COLORADO
as.
County of Larlmer )
The above and foregoing agreement was acknowledged before
me this '}77rday Of -i<<_,_ u_ - , 1980 by Dan E. King, as general
Dartner Realty Rro ers .nterprises, a Colorado partnership,
as general partner of RAINTREE ASSOCIATES, a Colorado genera]
Y,'009 my hand and official seal.
••lriieission Expires: •i 7__:.
;� _ ^,^ •�,, Notary Public --
STAi'S'"COLORADO )
) as.
County of Larimer )
The above and foregoing agreement was acknowledged before
me this L2LL day of +,:: „_ , 1980 by Louis F. Swift, as
President, and attested to bLi W lliam C. Stover, as. Secretary,
ofrTHE -NEW -MERCER DITCH COMPANY, a Colorado mutual irrigation
my hand and official seal.
C4tdai8aion Expires: if-y
Notary Pu is
-5-
A G R E E M E N T
THIS AGREEMENT is made and entered into this c7f 7 { day of
February, 1986, by and between RAINTREE ASSOCIATES, a partnership,
hereinafter referred to as "applicant", and
THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY
a Colorado mutual irrigation company,
hereinafter referred to as "ditch company."
PROJECT
Installation of a storm sewer line as same crosses ditch
company's ditch, in the City of Fort Collins, County of Larimer,
State of Colorado.
WITNESSETH:
WHEREAS, the ditch company is the owner of an irrigation ditch
and the right-of-aav therefor through land located in Section 22,
Township 7 North, Range 69 West of the 6th Principal Meridian, in
the City of Fort Collins, County of Larimer, State of Colorado:
Commencing at the Southeast corner of said Section 22 and
considering the East line of the Southeast Quarter of said
_ Section 22 to bear North 00"21' West with all bearings con-
tained herein relative thereto; thence North 50026' West,
1,678 feet to the approximate centerline of said crossing;
and
WHEREAS, applicant desires to construct and install a thirty
inch (30") storm sewer pipe under ditch company's ditch at the
location above described and further detailed in the exhibits
- attached hereto and made a part hereof by reference; and
WHEREAS, attached hereto as Exhibit "A", dated February 12,
1986, (consisting of two (2) sheets) are detailed plans of such
construction showing the location of such 30" storm sewer pipe as
same will cross the ditch of ditch company and the manner in
which such pipe will be constructed and installed.
WHEREAS, said Exhibit "A" sets forth all of the plane and
specifications, and the terms of this grant shall be in no way
modified or changed by any subsequent or related plans or
materials not included therein; and
WHEREAS, the ditch company is willing to grant to applicant
this right upon the terms and conditions hereinafter expressed;
NOW, THEREFORE, in consideration of the premises and the terms
of the within agreement, it is agreed as follows:
1. The ditch company grants unto applicant the right to
construct, install and maintain the above described storm sewer
line as shown in Exhibit "A", under the existing ditch of ditch
company, and further grants unto the applicant the right for
ingress and egress to a part of its ditch as shall be reasonable
and necessary for the exercise of the rights granted herein.
2. Applicant will, upon the completion of the project, furnish
to ditch company an "as built" exhibit further supplementing in
final form the work described in Exhibit "A."
3. Applicant has paid to ditch company an application fee in
the amount of Three Hundred Dollars ($300.00) for the grant of
this right-of-way. This shall be determined a minimum initial
payment to cover preliminary expenses, such as legal work, time
and car use of superintendent and/or directors; review of the
application; and other preliminary matters. In addition thereto,
applicant agrees to pay such additional reasonable and necessary
expenses of the ditch company for legal services and inspection
of the works by the ditch company's President, engineers and/or
superintendent until final approval of the project.
4. The construction herein contemplated shall be in strict
accordance with the final set of plans with modifications set forth
in Exhibit "A". Any excavations or changes in the present ditch
shall be backfilled, compacted and stabilized to the entire
satisfaction of the ditch company. All compaction for dikes
shall be done to ninety-five (95%) percent standard Proctor den-
sity. The dikes shall be in conformance with the plans for
construction of the storm sewer line. Said work shall further be
done under the supervision of the superintendent or other
designated agents of the ditch company.
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5. All construction shall be commenced and completed prior to
April 15, 1986 and applicant agrees said construction shall in
no way interupt or impede the flow of water.
6. Upon the completionof the project, the applicant shall
promptly notify the ditch company, and the parties shall jointly
inspect the ditch at the place of construction. If there are any
deficiencies in the work of the applicant or any variations from
the plans set forth in Exhibit "A", the applicant shall forthwith
remedy the same and in so doing, the applicant shall meet all
reasonable requirements of the ditch company for the protection
of the ditch and surrounding property.
7. It is the intent of this agreement that applicant exercise
care in the construction of said crossing. Accordingly, it is
hereby recognized by and between the parties hereto that the ditch
company is in no way responsible for any damages caused by such
construction or structure.
S. The project shall be without cost to the ditch company, and
the applicant shall hereby indemnify and forever hold the ditch
company harmless for liability for damages caused by the project.
9. The ditch company shall have full power to operate, main-
tian, alter, enlarge or relocate its ditch as if this agreement had
not been made, and any expenses caused thereby to the applicant
shall not be chargeable to the ditch company.
10. In the event either the applicant or the ditch company
shall be in default in any of their covenants herein so as to
require the party not in default to retain counsel to attempt to
enforce the covenants by negotiations or otherwise, or to commence
legal or equitable action against the defaulting party, the
defaulting party agrees to pay all reasonable expenses of said
litigation incurred by the enforcing party, including but not
limited to docket fees, depositions and reasonable attorney's fees.
11. Applicant agrees to record this agreement or an executed
copy thereof, at its own expense, with the Clerk and Recorder of
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Larimer County, Colorado and furnish evidence of such recording to
the ditch company.
THIS AGREEMENT shall extend to and be binding upon the heirs,
successors and assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first hereinabove written.
RAINTREE ASSOCIATES, a Colorado
Partnership
By
Dan E. King
STATE OF COLORADO )
as.
County of Larimer )
The above and foregoing instrument was acknowledged before me
this _ day of February, 1986, by Dan E. King as
of Raintree Associates, a Colorado Partnership.
Witness my hand and official seal.
My Commission Expires:
Notary Public
(SEAL1
THE LARIMER COUNTY CANAL NO. 2
IRRIGATING COMPANY, a Colorado
mutual irrigation company,
By:
(S) J n L. Strachan, President
ATTEST:
Q�
fftith W. Ewegen, Wit. a—E cretary
STATE OF COLORADO )
) as.
County of Larimer )
The above and foregoing agreement was acknowledged before me
thigZF�ay of February,. 1986, by John L. Strachan, as President,
and attested to by Judith W. Ewegen, as Asst. Secretary, of THE
LARIMER COUNTY CANAL J) TRRIGATING COMPANY, a Colorado mutual irri-
gation company.
Witness my hand and official seal. O
My Commission Expires:
( SEAL,, No ry I Ic
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City of Fort Collin,
February 19, 1986
Page 2
The City agrees to permit Pacific to commence the Work and Pacific
agrees to undertake said Work, subject to the following terms and
conditions:
1. Pacific agrees to indemnify and hold harmless the City from all
liability, loss, cost and expense arising in connection with
Pacific's proceeding to commence the Work prior to the approval by
the City of the plans and specifications therefor.
2. The parties acknowledge that the Work must be performed according
to plans approved by the City and that; (a) the Work proposed to
be undertaken by Pacific is not according to any approved set of
plans, and (b) such Work is being undertaken by Pacific with full
knowledge that the plans ultimately approved by the City may
require different or additional Work to be performed by Pacific
and that any such additional different Work be at the City's
discretion and at no expense to the City.
3. The City agrees to review the progress of the Work, but it is
agreed and acknowledged that such review shall not constitute
approval of the Work.
4. As a condition precedent to the City's approval of the Work, and
prior to the commencement of any Work on City -owned property, the
consent of the City Council to the grant of the Easement must be
obtained.
5. As a condition precedent to the City's approval of the Work,
Pacific must submit reasonable evidence of approval of the plans
and specifications therefor by the New Mercer Canal Company and
Larimer County #2 Canal Company, which currently have the rights
to the use of an existing drainage ditch which crosses the
proposed line of the Work.
6. Pacific, its employees, agents, or contractors agree not to
trespass across the Park Property prior to the effective date of
the City's grant of the Easement.
7. In consideration for the City's granting the Easement, and prior
to obtaining the same, Pacific agrees to cause to be paid to the
City the amount of $2,150.00.
Exhibit "A", Page 1
i
Ilia STORMWATER DETENTION FACILITIES
FOR RAINTREE P.U.D.
OVERALL DRAINAGE PLAN�',`-
3•
SCALE to. 20' /
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Exhit- "A", Page 2
REVIEWED AND APPROVED
By,
CITY OF FORT COLLINS DATE
E
PARKS S RECREATION DEPT.
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City of Fort Collin.
February 19, 1986 %10 r/
Page 3
If you are in agreement with the foregoing, please evidence the
same by your execution of this letter in the space provided below. I would
appreciate your transmitting to me two executed counterparts of this letter
for my files.
Very truly yours,
Jim Tracy
Regional Manager
ACKNOWLEDGED AND AGREED TO
this d4 jL� day of February, 1986
CITY OF FORT COLLINS, COLORADO
8y
City Pranager
ATTEST:
UA
City Clerk
APPROV AS TO FORM:
it or y
C' 1ty Eif4jineer
vn c u a c r u ti tl 3 9 Z 1 7 6 1900 DF^ 16 PY 12: 03
COUNTY OF LARIMER STATE OF COLORADO
A G R E E M E N T
yVTHIS AGREEMENT made and entered into this day of
1980, by and between
RAINTREE ASSOCIATES,
a Colorado general partnership,
hereinafter designated as the "applicant", and
THE NEW MERCER DITCH COMPANY,
a Colorado mutual irrigation corporation,
hereinafter designated as "ditch company".
PROJECT
The subdivision and construction of a planned unit devel-
opment in the SE 1/4 of the Se 1/4 of Section 22, Township 7
North, Range 69 West of the 6th P.M„ now in the City of Fort
Collins, Larimer County, Colorado, known as RAINTREE P.U.D.,
consisting of areas A, B, C and D.
WITNESSETH
WHEREAS, the ditch company is the owner of an irrigation
ditch and the right-of-way therefore; and applicant desires
to develop its planned unit development known as RAINTREE
P.U.O. in close proximity to said right-of-way, and in con-
nection therewith, has submitted plans to ditch company which
meet with the approval of ditch company except as hereinafter
set forth; and
WHEREAS, attached hereto and incorporated herein as
Exhibit A is the final Landscape Architect Design of Raintree
P.U.D., consisting of three (3) sheets of drawings and lay-
outs, prepared by ZVFK Architects, dated April 20, 1980 and
revised June 30, 1980, and Exhibit 8, consisting of a one -
page list of shrub and other plants to be used in the project;
and
-i
f�:
eK2U92 POO 3 9 I
WHEREAS, the above exhibits specifically set forth all
of the plans and specifications for the landscaping of this
P.U.D. and which in no way shall be modified or changed by
any subsequent plans or materials not included herein unless
agreed to between the parties hereto; and
WHEREAS, the ditch company is willing to accept this
landscaping plan upon terms and conditions hereinafter set
forth; and
WHEREAS, one or more homeowners associations will be
formed by applicant, and upon completion of the landscaping,
in accordance with Exhibit A, and approval by the ditch
company, such homeowners association or associations, as the
successors in interest of applicant, will assume all the
obligations for the future maintenance of the architectural
plan and the terms and conditions of this agreement.
NOW, THEREFORE, in consideration of the premises and
for adequate consideration and exchange of promises, and upon
the terms of the within agreement, it is agreed as follows:
1. That ail of the exhibits and statements above are
an essential part of this agreement and the recitations thereof
binding upon the parties to this agreement.
2. Ditch company grants unto applicant the right to
construct the landscape architecture, streets and install
the plantings provided in strict accordance with the reci-
tations herein and the exhibits. Further, ditch company
grants unto applicant the right of ingress and egress over
ditch company's right-of-way as shall be reasonable and
necessary for the furtherance of this project.
3. Applicant recognizes the right-of-way for the ditch
and of the ditch company's right to maintain the ditch from
the roadways and streets constructed pursuant to this plan
and in the development of this P.U.D. project.
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ON2092 Pco 3 9 7
4. Applicant agrees that no plants or shrubbery planted
by applicant upon the ditch banks shall at any time exceed
thirty (30") inches in heighth, and if same should grow higher,
applicant will assume all the duties of trimming and/or removal,
if requested by ditch company, as shall be necessary to pre-
vent such growth over a heighth of thirty (30") inches.
Further, applicant acknowledges the right of ditch company,
if reasonably necessary for the performance of maintenance or
other ditch functions, to drive over, remove or destroy cer-
tain of the shrubbery, and applicant, its successors and
assigns, agrees that if same is replaced, it will be done by
applicant without any claim against ditch company.
5. Applicant, for itself, its successors and assigns,
agrees that no parking of vehicles or other obstructions shall
be permitted along the ditch or street on the ditch right-of-
way; and in the event it should become necessary for ditch
company to remove vehicles or other obstructions, the cost
thereof to the ditch company shall be borne by applicant, its
successors and assigns.
6. In the event the ditch company shall incur additional
expenses for legal and engineering services reasonably nec-
essary in connection with this project, applicant agrees to
reimburse ditch company for such expenses.
1. Applicant will, upon the completion of the project,
furnish to ditch company and the homeowners association or
associations if then in existence, an "as built exhibit"
further explaining in final form the work described in the
attached exhibits. The grant by the ditch company of rights
hereunder shall not be effective and binding upon the ditch
company until satisfactory completion of an inspection and
approval by the ditch company and the reimbursement to the
ditch company of any of its reasonable charges incurred in
such inspection.
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BQ092 PC 3 r-I
8. The construction herein contemplated shall be in
strict accordance with the plans set forth in the attach ex-
hibits. All construction shall be commenced and completed
at such times as shall not interfere with the maintenance work
necessary by the ditch company.
9. The applicant agrees to convey to the ditch company
a non-exclusive easement 20 feet in width along the ditch
bank and over and across the private streets and parking
areas within Raintree P.U.D. as reasonably necessary to pro-
vide adequate vehicular access to the ditch for ditch purposes,
Maintenance of the ditch may, on occasion, require that silt
or other debris be removed from the ditch and deposited along
the banks of the ditch or on the streets and common areas of
Raintree P.U.D. bordering the ditch. The ditch company agrees
that it will not deposit silt or other debris on the streets
and common areas of Raintree P.U.D. except as reasonably
necessary for the proper maintenance of the ditch. Except
in an emergency, the ditch company shall give reasonable
notice to the Raintree P.U.D. Homeowners Association of its
intent to clean the ditch and deposit silt or other debris
on the streets, parking areas or common areas of Raintree
P.U.D. to provide the Homeowners Association adequate time
to prepare to remove the silt or other debris from the private
streets, parking areas and common areas as the ditch is cleaned.
The Homeowners Association shall also have the right to re-
move debris from the banks of the ditch, if such debris would
adversely affect the health and safety of the residents of
Raintree P.U.D. or if such debris would create an eyesore.
Nothing herein contained shall be construed to create any
obligation or responsibility in the applicant or the Home-
owners Association to clean or maintain the ditch.
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BK2092 PG0394
10. Applicant, on behalf of itself and its successors
and assigns, waives all seepage or overflow damage from said
ditch on the lands of applicant and agrees that such waiver of
liability shall be a covenant running with the land.
11. This agreement is strictly limited to the matters
contained herein and does not directly or indirectly give to
applicant any rights concerning storm drainage or easements
over or under ditch company's ditch.
12. The ditch company shall continue to be liable for
any damage resulting from its own negligence or intentional
acts or those of its officers, directors, agents or employees.
The applicant shall indemnify and hold the ditch company
harmless from liability for damage to the ditch (other than
ordinary wear and tear) caused by persons or entities other
than the ditch company, its officers, directors, agents or
employees.
Upon the establishment of the Homeowners Association,
the recording of the Protective Covenants for Raintree P.U.D.
and the assumption of the obligations, responsibilities and
liabilities of the applicant under this Agreement by the
Homeowners Association, the applicant shall be relieved of
all obligations, responsibilities and liabilities under this
Agreement, except to the extent that the applicant is the
owner of one (1) or more lots within the Raintree P.U.D. and,
therefore, a member of the Homeowners Association. The
Homeowners Association shall purchase and maintain insurance
in an amount and with a company reasonably acceptable to the
ditch company to cover its obligations, responsibilities
and liabilities under this Agreement and furnish a copy of
such policy to the ditch company. The Homeowners Association
shall be solely responsible for the payment of any premiums
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ah2092 PGO 3 9 9
for such insurance and the cost of such premiums shall be
assessed against the owners of lots within Raintree P.U.D.
as other common expenses. The Homeowners Association's
liability under this Agreement for damages covered by such
policy shall be limited to the amount of the policy, pro-
vided the amount of the policy has been approved by the ditch
company.
13. The ditch company shall have full power to operate
and maintain its ditch as if this agreement had not been made,
and any expenses hereby caused to the applicant shall not be
chargeable to the ditch company.
14. In the event any of the parties hereto shall be in
default in any of their covenants herein so as to require the
party not in default to retain counsel to attempt to enforce
the covenants by negotiations or otherwise, or to commence
legal or equitable action against the defaulting party, the
defaulting party agrees to pay all reasonable expenses in-
curred for such enforcement and/or litigation by the enforcing
party, including but not limited to docket fees, depositions
and reasonable attorney's fees.
THIS AGREEMENT shall extend to and be binding upon the
heirs, successors and assigns of the respective parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first hereinabove
written.
RAINTREE 4adopartn
TES,
a Coloradanal partnership,
REALTYS ENTERPRISE ,
By:a Colo 1
Gener rtner
By:
THE NE4 MERCER DITCH MPA
a_C ado_mu ua i igat10n corporatior
8 . 1
L s wi t, es ent
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