HomeMy WebLinkAboutRUDOLPH FARM INFRASTRUCTURE - Filed OA-OTHER AGREEMENTS - RECEPTION#20240050855, 11/26/2024 4:33:04 PM,1 of 18,S98.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
AGREEMENT TO ALLOW DISCHARGE OF HISTORICAL DRAINAGE
INTO THE LAKE CANAL DITCH
THIS AGREEMENT TO ALLOW DISCHARGE OF DRAINAGE INTO THE
LAKE CANAL DITCH (this "Agreement") is made and entered into this ,�� day of
j�i- ,2024("Effective Date"),by and between THE LAKE CANAL COMPANY
OF COLORADO,a Colorado non profit mutual irrigation company(hereinafter the"Company"),
PNE PROSPECT ROAD HOLDINGS,LLC a Colorado limited liability company("Developer'),
and the RUDOLPH FARMS METROPOLITAN DISTRICT NO.6,a quasi-municipal corporation
and political subdivision of the State of Colorado, authorized under Title 32 of the Colorado
Revised Statutes("DistriefD(together"Rudolph Famf
RECITALS
WHEREAS, Company is the operator of a ditch known as Lake Canal (hereinafter called
the "Ditch'D. The Ditch exists within the mixed use development known as Rudolph Farm (the
"Subdivision'D located in the City of Fort Collins (the "City', County of Larbmer, Colorado and
transports water through the Subdivision,then continuing downgradient to the south;and
WH MEAS, as a condition of approval of the Subdivision by the City,Rudolph Farm is
required to obtain permission to discharge historical drainage water from Pond 4 located within the
Subdivision,at the historical rate of 3.69 cfs,into the Ditch(the"Historical Flows");and
WHEREAS, Rudolph Farm desires to construct and install drainage improvements and
related appurtenances (the"Improvements'D as required by the City and as contained in the final
drainage and construction plans for the Subdivision(the"Construction Plans"),including but not
limited to construction of a drainage system designed to convey the Historical Flows into Lake
Canal Company's Ditch;and
WHEREAS,the purpose of this Agreement is to set forth the terms and conditions for the
Company's grant of a license to Rudolph Farm to discharge Historical Flows into the Ditch, and
for a temporary license for construction of the Improvements in accordance with the Construction
Plans;and
NOW,THEREFORE,in consideration of the amount of the mutual promises contained
herein,and for other good and valuable consideration,the receipt of which is hereby acknowledged
by the Company and the Rudolph Farm,the parties mutually agree as follows:
AGREEMENT
1. Recitals.The above Recitals are incorporated herein as if fully set forth-
2- Grant of 1-19ense;11iistoncal Flows.The Company hereby grants to Rudolph Farm a
temporary license for the construction and installation of Improvements.The Company also grants to
Rudolph Farm a license to permit the discharge of the Historical Flows through the Improvements
and into the Ditch and to enter upon those certain lands owned and/or operated by the Company and
depicted on Exhibit A, attached hereto and incorporated herein by this reference (hereinafter, the
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"Premises") for the construction, installation, removal, repair and/or replacement of the
Improvements(the"License"}.Subject to the terms and conditions set forth in this Agreement;the
Company agrees to permit the Historic Flows draining from Rudolph Farm's Tract into the Ditch,
so long as Rudolph Farm is in compliance with the terms and conditions of this Agreement,
including but not limited to the water quality standards and conditions described in paragraph 9.
3. Approval of Plans. By its execution of this Agreement the Company hereby
approves the Construction Plans, attached hereto and incorporated herein by this reference as
Exhibit B.Rudolph Farm shall submit to the Company for its written approval, any revisions to
plans previously approved by the Company(including revisions to the Construction Plans),such
approval not to be unreasonably withheld, conditioned, or delayed. Upon completion of the
Improvements,Rudolph Farm shall submit an As-Built survey to the Company-
4- Construction of Improvements; Inspection Rudolph Farm shall notify the
Company at least 48 hours prior to the start of construction of, modifications or repairs to that
portion of the Improvements located on the Premises so that the Company may supervise and
inspect the work as it deems necessary.In the event the Company deems it necessary to retain an
engineer for supervision of Rudolph Farm's work on the Premises,Rudolph Farm shall reimburse
the Company for the reasonable fees and costs of such engineer following receipt of written request
therefor, including an invoice or other reasonable evidence of the costs incurred_ The parties
acknowledge and agree that Rudolph Farm intends to construct and complete the initial
Improvements in a manner that does not disturb the flow of water through the Ditch, provided,
however, that if Rudolph Farm cannot reasonably construct the initial Improvements without
disturbing the flow of water through the Ditch,then the parties will cooperate in good faith to agree
on a commercially reasonable diversion or other alternative,to be constructed at Rudolph Farm's
expense,that would allow Rudolph Farm to continue construction activities without disturbing the
flow of water through the Ditch.
5. Cost of Construction. Emergency Repairs. Rudolph Farm will construct the
Improvements,at its sole expense,in accordance with the Construction Plans,as approved by the
City and the Company. The Company shall not be responsible for the costs associated with the
construction,maintenance,repair and replacement of the Improvements and the Company will not
be liable for damages to the Improvements or Rudolph Farm, except to the extent that such
damages are caused by the gross negligence or wanton misconduct of the Company,its contractors,
agents or employees. In the event that the Company determines that emergency repairs are
necessary to the Improvements located on the Premises,the Company shall have the right to make
emergency repairs to the Improvements and/or the Premises and the Company shall be without
liability for damage to Rudolph Farm, except as to such damage as may be caused by gross
negligence or wanton misconduct of the Company, its employees, agents, contractors, or
subcontractors.The determination of whether an emergency exists shall be at the sole good faith
discretion of the Company.
6. Disturbances in the Flow of Water.In carrying out its rights and duties under this
Agreement,Rudolph Farm will use all reasonable means to prevent any disturbance of the flow of
water in the Ditch, unless permission in writing is first received from the Company for such
disturbance.Rudolph Farm shall be responsible for any damages resulting from the unauthorized
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disturbance of flow of water through the Ditch caused by Rudolph Farm. Construction of the
Improvements shall be completed within 30 days from commencement of construction, unless
written consent by the Company for an extension is granted (which shall not be unreasonably
withheld),and shall be accomplished during the non-irrigation season,unless otherwise agreed by
the Company.
7. Reserved Rights.in Ditch Easement. The Company reserves its full power to
Operate, maintain, alter, enlarge, relocate, clean and manage its Ditch and installations_ The
Company shall be wholly without liability for damages to Rudolph Farm as the result of the
performance of said work within their easement
8. Fees.Beginning in 2024,Rudolph Farm will pay to the Company on or before April
In of each year an annual fee every year for the rights herein granted,which fee shall be$2,250.00
or five (5) times the amount annually assessed by the Company on one share of Lake Canal
Company of Colorado stock,whichever amount is greater,together with an annual administration
fee of$250.00_Rudolph Farm agrees that it will be responsible for payment of the annual fee due
to the Company_In the event that the annual fee required under this paragraph is not timely paid,in
addition to other remedies provided in this Agreement,interest on the amount unpaid shall accrue
at 12%per annum until paid.Rudolph Fawn shall also reimburse the Company for attorney's fees
and costs incurred by the Company for this Agreement
9. Water Quality.Rudolph Farm shall ensure that appropriate and effective permanent
water cleansing practices, techniques and apparatuses are installed and utilized, designed to
effectively clean any waters to be drained into the Ditch under this Agreement Rudolph Farm shall
ensure that all water quality practices, techniques and apparatuses that cleanse the drainage waxer
arising on the Subdivision are properly and effectively working at all times,and Rudolph Farm shall
annually maintain and inspect such practices,techniques and apparatuses.At a minimum any water
contemplated by this Agreement to drain from the Subdivision,through the Improvements, and into
the Ditch, shall at all times be suitable for agricultural use, including the watering of livestock,be
non-hazardous to humans,be non-malodorous and otherwise suitable for its historic uses, and shall
be suitable for any other similar uses that the waxers may be reasonably put to by the Company's
shareholders,now or in the future, and at a minimum such waxers shall meet the then current local,
state and federal water quality standards for point source discharges into a public waterway in which
the waters ultimately may be discharged under the then applicable public waterways classification at
such point of discharge. In any event, however, any drainage waters that enter the Ditch from the
Subdivision shall at all times be of a water quality that complies with the provisions of any lawful
statute,regulation or ordinance of general applicability limiting,regulating or prescribing the quality
of water that may be used for agricultural irrigation and any other use or uses that the waters may be
put to by the shareholders now or in the future,including modifications thereof,and whether adopted
by the State Engineer or any other local,state or federal governmental agency.At least once per year,
and at such other times as the Company may reasonably request,Rudolph Farm(at Rudolph Farm's
cost),will retain a qualified water quality expert(reasonably selected by the Company)to sample test
(to the extent reasonably requested by Company) the drainage waters entering the Ditch from the
Subdivision,to ensure that the water quality standards recited herein are not violated. The results
of such sampling and testing will be provided to the Company without cost Rudolph Farm, its
successors and assigns, shall forever hold the Company, its employees, officers and its directors
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Tina Harris,Clerk&Recorder,Larimer County,CO
harmless from liability for damage to the Company and its shareholders resulting from Rudolph
Farm failure to meet the water quality standards stated in this paragraph 9.To the extent that the
Company notifies Rudolph Fame,in writing,of a violation of the water quality standards set forth
in this paragraph 9(or any other breach of Rudolph Farm's obligations pursuant to this Agreement),
Rudolph Farm shall have thirty (30) days after receipt of such notice to cure such violation and
Rudolph Fann shall have ninety (90) days from and after commencement to complete such cure.
Further,Rudolph Farm agrees that in the event any shareholder ofthe Company or third party brings
suit against the Company, its officers, directors or employees, as a result of Rudolph Farm's
violation of the water quality standards contained in this Agreement which are not timely cured in
accordance with this paragraph 9, Rudolph Farm, its successors and assigns, will indemnify the
Company and its officers,directors,and employees for the cost to defend said suit and for any claim
for damages.
A. In the event that Rudolph Farm violates the water quality standards recited in this
paragraph 9 and does not timely cure such violation,Rudolph Farm shall be liable to the Company
for actual damages incurred by the Company,or for liquidated damages in the amount of$1,000.00
for each day of the violation, whichever is greater. Annually, upon the anniversary date of this
Agreement, the amount of liquidated damages shall increase by three percent (3%) to reflect
inflation.
B. Notwithstanding the provisions of paragraph A above, the Company may seek
judicial or administrative relief or other appropriate remedies and damages. In the event that a
court or governmental body requires or orders that the water discharged by Rudolph Farm into the
Ditch requires treatment to cure a violation, Rudolph Farm shall effectuate such treatment at its
sole expense to meet the terms of this Agreement.
C. In the event that a local, state or federal governmental agency or authority or any
court of competent jurisdiction requires Company to obtain,or asserts that Company must obtain or
was required to obtain, any permit, authorization, or similar approval to allow the Company to
receive historical flows and drake water pursuant to this Agreement,or for the Company to allow
any installation, repair, maintenance or existence of the Improvements, then Rudolph Farm shall
obtain such perut,authorization or similar approval on behalf of the Company.The Company shall
not be responsible for obtaining any such permit authorization or similar approval, however,
Company shall fully cooperate with Rudolph Farm in such process. In the event that any
administrative,judicial or similar proceeding is brought against the Company,its officers,directors
and employees due to the existence or nonexistence of any such permit, approval or similar
authorization, Rudolph Farm shall indemnify the Company,its officers, directors, employees and
shareholders from any liability or damages, and shall pay the Company's reasonable attorney fees
and costs incurred in connection with any such proceeding.
10. Additional Obligations.In addition to its other obligations as set forth in this
Agreement,Rudolph Farm hereby covenants and agrees:
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A. Rudolph Farm shall not install a fence, nor construct any building within the
Premises unless written authorization is first received by the Company;provided,that Company
shall not unreasonably withhold, condition, or delay such authorization to the extent that such
fence or building is required by the Town or any other applicable governmental authority.
B. Upon completion of the Improvements or other work performed by Rudolph Farm
pursuant to this Agreement,Rudolph Farm,to the extent practicable,shall restore the Premises to
substantially the condition existing immediately prior to the commencement of such construction,
except as necessarily modified to accommodate the Improvements or other such work permitted
under this Agreement.
C. In the event the Improvements,or other work performed by Rudolph Farm pursuant
to this Agreement,causes settling in the Ditch,Rudolph Farm will upon written notification from
Company,promptly restore the Ditch to substantially the condition existing immediately prior to
the commencement of such construction, except as necessarily modified to accommodate the
Improvements or such other work permitted under this Agreement.
D. Each party shall bear its own costs of any legal services necessary in the preparation
and implementation of this Agreement,except as set forth in paragraph 8,above.
11. No Waiver_ Failure by either party to enforce any or all provisions of this
Agreement at any time does not,and shall not operate as a waiver or estoppel by such party.
12. Governmental Immunity_Nothing in this Agreement shall be construed to waive,
limit, or otherwise modify,in whole or in part,any governmental immunity that may be available
by law to the District pursuant to the Colorado Governmental Immunity Act,§§24-10-101,et seq.,
CRS.,as the same may be amended from time to time.
13. No Warranties. This Agreement, and any grant by the Company, is subject to all
restrictions,reservations,rights-of-way,easements,documents or agreements existing or of record
in the Larimer County Clerk and Recorder's Office at the time this Agreement is recorded. The
Company makes absolutely no warranties,including warranties of title, in or by this Agreement
or any grant herein_
14. Bindina Agreement. Runs with the Land. The benefits, burdens and all other
provisions contained in this Agreement shall be covenants mmii»g with and binding upon the
Premises. The benefits, burdens and all other provisions contained in this Agreement shall be
binding upon, and inure to the benefit of the Rudolph Farm and the Company, and upon and to
their respective heirs, personal representatives, successors and assigns. The Company shall not
look to any homeowner for payment of any costs due, or the satisfaction of any obligations
hereunder_
15. Recordation.Rudolph Farm shall,at Rudolph Farm's sole cost and expense, cause
this Agreement to be recorded in the real property records of Weld County, Colorado_ The
installation of the Improvements shall not commence until this Agreement has been recorded and
a copy of such recorded Agreement is provided to Company.
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16. Notice.Any notice required or permitted hereunder shall be deemed effective when
deposited in the United States mail,postage prepaid,first class and addressed to the party to whom
notice is to be given,as follows:
If to Company: The Lake Canal Company of Colorado
c/o Fischer,Brown,Bartlett&Gunn,P.C.
Attn:Brent Bartlett
1319 E.Prospect Road
Fort Collins,CO 80525
With a copy to: Lake Canal Company of Colorado
c/o Melissa Buick,Secretary-Treasurer
207 Wildflower way
Severance,CO 80550
If to Developer: PNE Prospect Road Holdings,LLC
900 Castleton Road,Suite 118
Castle Rock,CO 80109
With a copy to:
Davis Graham.&Stubbs,LLP
c/o Chris Kinsman
1550 17&Street,Suite 500
Denver,CO 80202
If to District: Rudolph Farms Metropolitan District No.6
Tamara K. Seaver,General Counsel
Icenogle Seaver Pogue,P.C_
4724 S.Monaco Street,Suite 360
Denver, CO 80237
Said notice to the Company shall not be effective unless a copy of any notice is also similarly
mailed to the Company's registered agent as filed with the Colorado Secretary of State's Office.
In the event that the person or entity to whom notice shall be given changes,the other party shall
be notified in writing pursuant to this paragraph.
17. Modifications. This Agreement cannot be changed orally, and no agreement will
be effective to waive, terminate, change, modify or discharge it in whole or in part unless such
agreement is in writing and is signed by both parties hereto.
18. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement will
nonetheless remain in full force and effect,provided that the invalidity or unenforceability of such
provision will not materially adversely affect the benefits accruing to any party hereunder.
19. Applicable Law.This Agreement will be governed by and construed in accordance
with the laws of the State of Colorado_
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20. No Third.Party Beneficiary.The provisions of this Agreement are and will be for
the benefit of Rudolph Farm and Company, and their respective successors and assigns, only and
are not for the benefit of any third party, and accordingly, no third party will have the right to
enforce the provisions of this Agreement
21. Captions.The section headings appearing in this Agreement are for convenience of
reference only and are not intended,to any extent and for any purpose,to limit or define the text
of any paragraph or any subparagraph hereof.
22. Rules of Construction The parties acknowledge that the parties and their counsel
have reviewed and revised this Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party will not be employed in the
interpretation of this Agreement or any exhibits or amendments hereto.
[remainder ofpage intentionally left blank)
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Tina Harris,Clerk&Recorder,Larimer County,CO
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly
executed by the proper officer and have affixed their seals hereto on the day and year first above
written.
RUDOLPH FARMS METROPOLIT
DISTRICT NO. 6, a quasi-municipal corpo tion
and political di 1"sion of the State o rad ,
authorized nder T' e 32 of he C o e�' ed
Statutes
Y=
chael Kleinman,Secretary/Treasurer
STATE OF COLORADO )
ss.
COUNTY OF �P )
The above and foregoing Agreement was acknowledged before me this 10 day of,2024,
by Michael Kleinman, Secretary/Treasurcr. Rudolph Farms Metropolitan District No. 6, a quasi-
municipal corporation and political subdivision oFthe State of Colorado_authorized under Title 32
of the Colorado Revised Statutes.
WITNESS my hand and official seal.
Notary Public
MY commission expires: �Z�/J t ee- 30 7,Q*SEAL}
AtDAN TANNER
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20224038163
My COMMMSION EXPIRES sEPTEPABaz 30,2=
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PNE PROSPECT ROAD HOLDINGS,LLC,a
Colorado limited liability company
By: PNE Prospect Road Investments,LLC,a
Colorado limited liability company,its Sole
Member
By:
Bryan Byler,Manager
STATE OF )
)ss.
COUNTY OF )
The above and foregoing Agreement was ardcnowledged before me this day of
2024,by Bryan Byler,as Manager of PNE Prospect Road Investramt%LLC,
ao limited liability company, Sale Member of PNE Prospect Road Holdings, LLC, a
Colorado limited liability company.
WITNESS my hand and-official seal_
Notary Public
MY commission expires:Cr ' SEAL)
EVA PAGE
NOTARY PUBLIC
STATE Of COLORADO
NOTARY ID 20054029852
MY COMMISSION EXPIRES 07129/2M
usai r or-age eft intentionally blank Signatures to follow.)
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Tina Harris,Clerk&Recorder,Larimer County,CO
THE LAKE CANAL COMPANY OF
COLORA.DO,a Colorado mutual irrigation
company
By: /4". / ,
Byron R. Collins,President
STATE OF COLORADO )
ss_
COUNTY OF )
The above and foregoing Agreement was aclmowledged before me this day of
2024, by Byron R_ Collins,President, The Lake Canal Company of Colorado, a
Co orado mutual irrigation company_
WITNESS my hand and official seal.
Notary Public
MY commission expires: 0:ZIO I12 S' {SEAL}
MEUSSA K BUICK
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20054024373
MY COMMISSION EXPIRES JUL 8,2025
RECEPTION#20240050855, 11/26/2024 4:33:04 PM,11 of 18,598.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
EIUMIT A
Depiction and Description of the Premises
[SEE ATTACHED]
RECEPTION#20240050855, 11/26/2024 4:33:04 PM,12 of 18,$98.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
i(twEPS W
GROUP NOENGRTHERN
EERING
DESCRIPTION
A tract of land being a portion of the Southwest Quarter of Section 15,Township 7 North,Range 68 West of the
6th P.M_,City of Fort Collins,County of Larimer,State of Colorado,being more particularly described as follows;
Considering the South line ofthe Southwest Quarter as bearing North 89'59'24'West with the Southwest
comer ofSection 15 being monumented by 2 V brass cap in concrete and the South Quarter comer of5ection
15 being monumented by 2'h'aluminum capon#6 rebarin monument box stamped PL528295 and with all
bearings contained herein relative thereto:
COMMENCING at the Southwest comer of Section 15;
THENCE North 00°11'30"East,along the West line of the Southwest Quarter,a distance of 1380.89 feet;
THENCE South 89"48'16"East,departing said West line,a distance of 95.14 feet to the Southwesterly line ofthat
tract of[and recorded at Reception No.20120025371 to the POINT OF BEGINNING;
THENCE continuing along said Southwesterly line the following 5 courses and distances:
THENCE South 54°47'42"East a distance of 87158 feet;
THENCE South 67'51'42"East a distance of 10138 feet;
THENCE South W 58'42"East a distance of 55256 feet;
THENCE South 76`18'42"East a distance of 150.63 feet;
THENCE South S V 57'42"East a distance of 28.01 feet;
THENCE South 00'00'36"West,departing said Southwesterly line,a distance of 18731 feet;
THENCE South 08"00'38"West a distance of47030 feet;
THENCE South 00`00'36"West a distance ofST.01 feet to the North right-of-way line of Prospect Road;
THENCE North 89'59'24"West,along said North line,a distance of50.00 feet;
THENCE North 00"00'36"East,departing said North line,a distance of 6050 feet;
THENCE North 08°00'21"East distance of47058 feet;
THENCE North 00°00'36"East distance of 14238 feet;
THENCE North 77"56'21"West a distance of23492 feet;
THENCE North 89"59'24"West a distance of50.76 feet;
THENCE North 89°59'24"West a distance of 84.00 feet;
THENCE North 89"59'24"West a distance of56.66 feet;
THENCE North 84"58'42"Westa distance of266 21 feet;
THENCE North 67'51'42"West distance of M93 feet;
THENCE North SV 47'42"West a distance of 152-12 feet;
THENCE North 00°00'00"East a distance of 12.24 feet;
THENCE North 54"47'42"West a distance of 67838 feet to said West line of the Southwest Quarter,
THENCE North 00`11'12"East,along said West tine,a distance of73.26 feetto,the POINT OF BEGINNING,
containing 141,379 square feet or 3.246 acres,more or less(t). -------
Maybe subject to easements,rights-of-way,covenants and restrictionsof record: -_"-
Fort Collins Greeley 1(970)221-4158 1 epsgroupinccom 1 of3
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Tina Harris,Clerk&Recorder,Larimer County,CO
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GROUP NORITHERN
EERING
Exhibit attached hereto and made a part hereof.
SURVEYOR'S CERTIFICATE
1,Robert C Tessely,a Colorado Registered Professional Land Surveyor,do hereby certify thatthis property
description was prepared under my personal supervision and checking,that it is true and correct to the best of
my knowledge,information and belief and is in accordance with applicable standards of practice.This is not a
guarantv orwarranty.either expressed or implied.{4 CCR 730-11
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Robert C_Tessely
Colorado Professional Land Surveyor No.38470
For and on behalf of EPS Group,Inc
EPS GROUP,INC.
301 North Howes Street,Suite 100
Fort Collins,Colorado 80521
(970)221-4158
September 20,2024
LMS
S:\Su-eyJobs\1896001\Dwg\Exhibies\1896-001 Lake Canal Exhibit Desaiption.doa
Fort Collins Greeley 1(970)221-4158 epsgroupinccorn 2 of3
RECEPTION#20240050855, 11/26/2024 4:33:04 PM,14 of 18,S98.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
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RECEPTION#20240050855, 11/26/2024 4:33:04 PM,15 of 18,598.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
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RECEPTION#20240050855, 11/26/2024 4:33:04 PM,16 of 18,$98.00 Electronically Recorded
Tina Harris,Clerk&Recorder,Larimer County,CO
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