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HomeMy WebLinkAbout137 - 11/17/2015 - AUTHORIZING THE CITY MANAGER AND THE MAYOR TO ENTER INTO AN AGREEMENT REGRADING THE CITY DITCH, INCL ORDINANCE NO. 137, 2015 t OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER AND THE MAYOR TO ENTER INTO AN AGREEMENT REGRADING THE CITY DITCH, INCLUDING THE QUIT CLAIM OF A PORTION OF THE CITY DITCH AND THE GRANTING OF AN UPDATED EASEMENT ACROSS THE WATERWORKS PROPERTY WHEREAS, the City is the fee owner of certain real property described in and pursuant to a Court Order issued on September 15, 1892, by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559 ("Subject Land" and "1892 Decree"); and WHEREAS, the City is the fee owner of certain real property described in the Warranty Deed, dated September 18, 1889, and recorded in the real property records of Larimer County on April 30, 1891, at Reception Number 36766, Book 78, Page 490 ("Waterworks Parcel"); and WHEREAS, the City Ditch traverses the Subject Land and the Waterworks Parcel; and WHEREAS, the Larimer County Canal No. 2 Irrigating Company ("Ditch Company") is the operator of the Larimer County Canal No. 2; and J WHEREAS, in 1906, the Ditch Company entered into a 99-year lease agreement with the City that allowed the Ditch Company to operate the Larimer County Canal No. 2 in the location of the City Ditch as it crosses the Subject Land and the Waterworks Parcel; and WHEREAS, following the expiration of the 99-year lease, the City and the Ditch Company entered into several short-term extension agreements and, thereafter, a long-term easement agreement in 2010, which was recorded in the real property records of Larimer County on August 3, 2010, at Reception No. 20100044752 ("2010 Easement Agreement"); and WHEREAS, the City is a major shareholder in the Ditch Company; and WHEREAS, the James S. Brinks Trust -formed under the Trust Agreement dated November 30, 2007 ("Trust") is, fee owner of the lands generally to the west and east of the Subject Land; and . WHEREAS, the Trust disputes the City's fee ownership of the Subject Land and claims that the City only owns a right-of-way on the Subject Land under the 1892 Decree; and WHEREAS, the dispute between the City and the Trust regarding ownership of the Subject Land has various potential negative consequences for the City both directly and as a shareholder in the Ditch Company, the favorable resolution of which would serve the public; and WHEREAS, the City, the Ditch Company, and the Trust have negotiated an agreement, attached hereto as Exhibit "A" (the "Agreement"), whereby the three parties would address and resolve the various issues associated with the City Ditch and the 1892 Decree in a manner that is favorable to all three parties; and WHEREAS, as part of that Agreement, the City would convey the Subject Land to the Trust by quitclaim deed in the form attached as Exhibit `B" to the Agreement (the "Deed"), replace the 2010 Easement Agreement on the Waterworks Parcel with an easement in the form attached as Exhibit "D" to the Agreement (the "Waterworks Easement"), and receive various other benefits, as set forth in the Agreement; and WHEREAS, City Code Section 23-111(a) states that the City Council is authorized to convey interests in real property owned in the name of the City provided that the City Council finds first, by ordinance, that such conveyance is in the best interest of the City; and WHEREAS, City Code Section 23-111(b) states that, with respect to real property that is part of the City's water or utility systems, the City Council must also find that the disposition will not materially impair the viability of the particular utility as a whole and will be for the benefit of the citizens of the City; and WHEREAS, City Code Section 23-114 states that any conveyance of property interests approved under Sections 23-111(a) and (b) must be for an amount equal to or greater than the fair market value; and WHEREAS, staff has determined that, under the Agreement, in exchange for the Subject Land and the granting of the Waterworks Easement, the City would receive carriage rights in the Larimer County Canal No. 2 that have a value equal to or greater than the fair market value of the Subject Land and the Waterworks Easement; and WHEREAS, the Water Board has reviewed the Agreement and, at its October 15, 2015, meeting, unanimously recommended that the City Council approve the Agreement; and WHEREAS, the City Manager and City staff have recommended to the City Council that it approve the Agreement as set forth herein. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. City Council finds, pursuant to Section 23-111(a) of the City Code, that the disposition of the Subject Land and the Waterworks Easement pursuant to an agreement that is substantially similar to the attached Agreement is in the best interests of the City. Section 2. City Council finds, pursuant to Section 23-111(b) of the City Code, that the disposition of the Subject Land and the Waterworks Easement pursuant to an agreement that is substantially similar to the attached Agreement will not materially impair the viability of the water utility system as a whole and that it will be for the benefit of the citizens of the City. Section 3. City Council finds, pursuant to Section 23-114 of the City Code, that the disposition of the Subject Land and the Waterworks Easement pursuant to an agreement that is substantially similar to the attached Agreement will result in the City receiving a value in an amount equal to or greater than the fair market value of the Subject Land and the Waterworks Easement. Section 4. City Council authorizes the City Manager to execute the Agreement in substantially the form attached hereto as Exhibit "A", with such additional terms and conditions as the City Manager, in consultation with the City Attorney, determines to be necessary and appropriate to protect the interests of the City or effectuate the purpose of this Ordinance. Section 5. The Mayor is hereby authorized to execute the Deed in substantially the form of Exhibit B to the attached Agreement to convey the Subject.Land, provided that such quitclaim deed is executed as part of an Agreement as set forth in Section 4 above. Section 6. That the Mayor is hereby authorized to execute the Waterworks Easement in substantially the form of Exhibit "D" to the attached Agreement, provided that such easement is executed as part of an Agreement as set forth in Section 4 above. Introduced, considered favorably on first reading, and ordered published this 3rd day of November, A.D. 2015, and to be presented for final passage on the 17th day of November, A.D. 2015. O&�ORTCO 06 �i ��': 'Z �: ���L °' Mayor ATTEST: 00LORPQO 4 City Clerk Passed and adopted on final reading on the 17th day of November, A.D. 2015. C Mayor A T C U• t •q 0 EXHIBIT A AGREEMENT (The City of Fort Collins, The Larimer County Canal No. 2 Irrigating Company, and The James S. Brinks Trust formed under the Trust Agreement dated November 30, 2007) This AGREEMENT is made this day of , 2015 between the LARIMER COUNTY CANAL NO . 2 IRRIGATING COMPANY ("Company"), a Colorado nonprofit corporation, the CITY OF FORT COLLINS , COLORADO ("City"), a Colorado municipal corporation, and the JAMES S . BRINKS TRUST formed under the Trust Agreement dated November 30, 2007 , c/o Rose L. Brinks, Trustee of the James S . Brinks Trust ("Trust") all of which are sometimes referred to herein as the "Parties . " FACTUAL RECITALS A. The City is the owner of certain real property described in and pursuant to a Court Order issued on September 15 , 1892 , by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559 ("Subject Land" and " 1892 Decree") . The Subject Land is generally located in the north half (N1 /2) of Section 32 , Township 8 North, Range 69 West, 6th P .M. , and a portion of the southwest quarter (SW1 /4) of Section 29 Township 8 North, Range 69 West, 6th P .M. , Larimer County, Colorado, the approximate location of which is shown on Exhibit A, attached hereto and incorporated herein by this reference . B . The Parties acknowledge and agree that they each possess the following mutual interests in the Subject Land: 1 . The City claims fee owner of the Subject Land pursuant to the 1892 Decree . The Trust claims that the City only owns a right-of-way on the Subject Land under the 1892 Decree . 2 , The Trust is fee owner of the lands generally to the west and east of the Subject Land. 3 , The Company is the operator of a canal or ditch known as the Larimer County No . 2 Canal ("Ditch"). The Ditch passes through portions of the Subject Land in a ditch channel originally operated by the City and originally referred to as the "City Ditch," which is located as approximately shown on Exhibit A. The Company entered into a 99-year lease agreement with the City that allowed the Company to operate the Ditch in the location of the City Ditch as it crosses the Subject Land ("Lease Agreement") . Following expiration of the Lease Agreement, the City and the Company entered into an easement agreement in 2010, whereby the City granted an easement to the Company on, over, under and across the Subject Land for the operation, maintenance and utilization of the portion of the Ditch that traversed the Subject Land, which easement was recorded in the real property records of Larimer County on August 3 , 2010, at Reception No. 20100044752 ("2010 Easement Agreement") . 1 C . The Parties wish to resolve any disputes related to interests in the Subject Land. To that end, the City desires to quitclaim its ownership interests in the Subject Land to the Trust, pursuant to the terms and conditions set forth in the Quit Claim Deed attached hereto as Exhibit B and referred to hereinafter as the "Quitclaim Deed." D . In exchange for the City quitclaiming the Subject Land to the Trust and the City and the Company terminating and replacing the 2010 Easement Agreement respect to the Subject Land, Rose L. Brinks, as Trustee of the Trust, agrees to enter into a new easement agreement with the City and Company on behalf of the Trust, with the goal of recognizing and memorializing in writing the mutual interests and correlative rights of the Parties in the Subject Land as set forth in the Easement Agreement attached hereto as Exhibit C and incorporated herein ("2015 Easement Agreement") . E. The City and the Company also desire to terminate and abandon the 2010 Easement Agreement with respect to the Subject Land and with respect to the following parcel of land also subject to the 2010 Easement Agreement: certain real property conveyed to Grantor by Warranty Deed on September 18 , 1889, and recorded in the real property records of Larimer County on April 30, 1891 , at Reception Number 36766, Book 78 , Page 490, generally located in the northwest quarter (NW1 /4) of the southeast quarter (SE1 /4) of Section 32, Township 8 North, Range 69 West, 6th P .M. , Larimer County ("Waterworks Land") . The Trust has no interest in the Waterworks Land or the agreement regarding the same as contemplated herein. F . In exchange for the various mutual covenants, covenants, agreements, representations, and warranties referred to herein, the City and the Company further agree to enter into a new easement agreement, with the goal of recognizing and memorializing in writing the mutual interests and correlative rights of the City and the Company in the Waterworks Land as set forth in the Easement Agreement attached hereto as Exhibit D and incorporated herein ("Waterworks Agreement") . AGREEMENT NOW THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows : 1 . Factual Recitals . The above recitals are hereby incorporated herein by reference as if fully set forth. 2 . The City' s Representations and Warranties . The City hereby represents that it has full legal power, authority and right to enter into this Agreement affecting the Subject Land and the Waterworks Land, and to carry out the terms of this Agreement. 3 , The Company' s Representations and Warranties . The Company hereby represents and warrants that it has full legal power, authority and right to enter into this 2 Agreement affecting the Subject Land and the Waterworks Land and to carry out terms of this Agreement. 4, The Trust Representations and Warranties . Rose L. Brinks, as Trustee of the Trust, hereby represents and warrants that the Trust is the owner of the Brinks Property and that she, as Trustee of the Trust, has full legal power, authority and right on behalf of the Trust to enter into this Agreement affecting the Subject Land, and to carry out its terms . 5 . Quitclaim Deed, Easement Deed and Agreement. a. The City hereby agrees to relinquish its rights to the Subject Land, conditioned upon the execution and recording of the 2015 Easement Agreement as set forth herein. To this end, simultaneous with the execution of this Agreement, the City shall execute and deliver to the Trust, at the closing specified below, the accompanying Quitclaim Deed attached hereto as Exhibit B . b . Additionally, the City and the Company hereby agree to terminate the 2010 Easement Agreement on the Subject Land, as set forth herein, and in exchange for, the 2015 Easement Agreement attached hereto as Exhibit C that shall replace the 2010 Easement Agreement on the Subject Land. c. In exchange for the quitclaim of the Subject Land by the City to the Trust and the termination and replacement of the 2010 Easement Agreement by the City and the Company, Rose L. Brinks , acting as Trustee of the Trust, shall execute and deliver to the City and the Company at the closing specified below, the accompanying 2015 Easement Agreement. The Parties acknowledge the purpose of the 2015 Easement Agreement is to define, recognize and memorialize in writing the Parties ' mutual interests in the Subject Land, including the City' s retention and reservation of its rights in the Subject Land as further set out in the Quitclaim Deed and 2015 Easement Agreement, and the Company' s rights to continue for the use and enjoyment of the portion of the Ditch that is located on the Subject Land as set forth in the 2015 Easement Agreement. 6 , Waterworks Agreement. In exchange for the various mutual covenants, covenants, agreements, representations, and warranties referred to herein, the City and the Company agree to enter into the Waterworks Agreement, attached hereto as Exhibit D at closing specified below. The City and the Company acknowledge the purpose of the Waterworks Agreement is to define, recognize and memorialize in writing the City' s and the Company' s mutual interests in the Waterworks Land, and the Company' s rights to continue for the use and enjoyment of the portion of the Ditch that is located on the Waterworks Land as set forth in the Waterworks Agreement. The Trust has no interest in the Waterworks Land or the Waterworks Agreement. 7 , Closing. The closing of the conveyances and agreements described herein shall take place at the following date, time, and location: . Immediately upon full execution and delivery of the Quit Claim Deed, the 2015 Easement Agreement, and the Waterworks Agreement, consistent with this Agreement, the 2015 Easement Agreement, and the 3 Waterworks Agreement, shall cause said instruments to be recorded in the real property records of the Larimer County Clerk and Recorder in the order so stated. The cost of such recording shall be borne equally by the City and the Company. 8 . Relationship of the Parties . The Parties to this Agreement are not employees, agents, joint venturers, or partners for any purpose whatsoever. Nothing in this Agreement shall authorize or empower any of the Parties to create or assume any obligation or responsibility whatsoever, express or implied, in the name of or on behalf of the others, nor make any representation, warranty or agreement in the name of or on behalf of the others . 9 . Additional Acts. The Parties agree to perform any lawful additional acts, including but limited to, execution of additional documents as are reasonably necessary to effectuate the entirety or any part of this Agreement. 10 . Modification and Waiver. Any waiver, modification, amendment, discharge or change in this Agreement, except as otherwise provided herein, must be in writing and signed by the party against whom the enforcement of such modification, waiver, amendment, discharge or change is sought. Notwithstanding the foregoing, it is the express intention, agreement and covenant of each party hereto that none of the parties hereto shall at any time, or in any way, seek to enforce, prove or benefit from any claim or assertion of any verbal or unwritten modification, amendment or waiver of any term in this Agreement, and further, that it is the express covenant and warranty of each party hereto that such attempt shall be void and of no effect whatsoever. 11 . Entire Agreement. This Agreement, and the attachments hereto, represents the complete and final expression of the agreements and undertakings related hereto between the Parties. 12 . Successor and Assigns. This Agreement and the rights of the Parties hereunder shall be binding upon and shall inure to the benefit of the Parties hereto and their heirs, legal representatives and successors. 13 . Governing Law. This Agreement shall be governed by, and construed in accordance, with, the law of the State of Colorado . IN WITNESS WHEREOF, the Parties have executed this Agreement upon the date set forth above . [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] 4 THE CITY OF FORT COLLINS , a municipal corporation. By: Mayor ATTEST : City Clerk APPROVED AS TO FORM : Deputy City Attorney STATE OF COLORADO ) ss . COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of , 20151 by as Mayor of The City of Fort Collins, Colorado, a municipal corporation. WITNESS my hand and official seal. Notary Public My commission expires : 5 THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit corporation By: President STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20151 by , President of the Larimer County Canal No. 2 Irrigating Company, a Colorado nonprofit corporation. WITNESS my hand and official seal. Notary Public My commission expires : 6 THE JAMES S. BRINKS TRUST By: Rose L. Brinks, as Trustee of the James S . Brinks Trust, formed under the Trust Agreement dated November 30, 2007 STATE OF COLORADO ) ss . COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of , 2015 , by Rose L. Brinks, Trustee of the James S . Brinks Trust formed under the Trust Agreement dated November 30, 2007 . WITNESS my hand and official seal. Notary Public My commission expires : 7 EXHIBIT A TO AGREEMENT 'xl Ft YY. J 1 • w LC rr ll 3 SFr Ir !J . . m] T+ . _ •_ _ _ Al ICJ' I .FS IL r F . . . . . . . _. • � T • • r_ J •. 7 •1• • _ _ • • ., ,. - ti • _ ti •J . ' 1 1 (The above image is from a Court Order issued on September 15 , 1892 , by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559, with said image appearing on page 557 . ) [EXHIBIT B TO AGREEMENT] QUIT CLAIM DEED This QUIT CLAIM DEED, made this day of , 2015 , between the CITY OF FORT COLLINS , COLORADO, a municipal corporation ("Grantor"), whose mailing address for the purpose of this Quit Claim Deed is 300 LaPorte Avenue, Fort Collins, Colorado 80521 , and JAMES S . BRINKS TRUST formed under the Trust Agreement dated November 30, 2007, c/o Rose L. Brinks, Trustee of the James S . Brinks Trust ("Grantee"), whose mailing address for the purpose of this Quit Claim Deed is P . O . Box 710, LaPorte, Colorado 80535 . WITNESSETH : That Grantor, for and in consideration of the sum of Ten Dollars ($ 10. 00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and pursuant to City Council Ordinance No . , 2015 , which was approved and adopted on , 2015 , has remised, released, sold, conveyed, and quit claimed, and by these presents does remise, release, sell, convey, and QUIT CLAIM unto Grantee, its heirs, and assigns, forever, all the right, title, interest, claim and demand which Grantor has in and to the real property, together with improvements, if any, situate, lying, and being in the County of Larimer, State of Colorado described as follows : Any and all interests granted in the Court Order issued on September 15 , 1892 , by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87, Pages 556 through 559, which property is generally located in the north half (N1 /2) of Section 32 , Township 8 North, Range 69 West, 6th P .M. , and a portion of the southwest quarter (SW1 /4) of Section 29 Township 8 North, Range 69 West, 6th P .M. , Larimer County; TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto belonging or in anywise thereunto appertaining, and all the estate, right, title, interest, and claim whatsoever of Grantor, either in law or equity, in its current condition and on an "as is" basis to the only proper use, benefit, and behalf of Grantee, its heirs, personal representatives, and assigns, forever. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] QUIT CLAIM DEED Page 1 of 2 GRANTOR: CITY OF FORT COLLINS , COLORADO, a Municipal Corporation By: ATTEST : Mayor City Clerk APPROVED AS TO FORM : Assistant City Attorney STATE OF COLORADO ) ) ss . COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of 2015 by , as Mayor of the City of Fort Collins, and , as City Clerk of the City of Fort Collins . WITNESS my hand and official seal. My commission expires : Notary Public QUIT CLAIM DEED Page 2 of 2 [EXHIBIT C TO AGREEMENT] EASEMENT AGREEMENT This EASEMENT AGREEMENT ("Agreement") is entered into as of the day of , 2015 , between THE JAMES S . BRINKS TRUST formed under the Trust Agreement dated November 30, 2007, c/o Rose L. Brinks, Trustee of the James S . Brinks Trust, ("Trust"), and the CITY OF FORT COLLINS , COLORADO, a municipal corporation ("City") and the LARIMER COUNTY CANAL NO . 2 IRRIGATING COMPANY, a Colorado nonprofit company ("Company") . The Trust, the City, and the Company are collectively referred to herein as the "Parties . " RECITALS A. Pursuant to the Quitclaim Deed between the Trust and the City, dated and recorded in the Larimer County Clerk and Recorder' s under Reception No. on (the "Quitclaim Deed") , the Trust became the owner of certain real property described in a Court Order issued on September 15 , 1892, by the District Court of Larimer County, Colorado and recorded in the real property records of Larimer County at Book 87 , Pages 556 through 559 ("Subject Land"), which is generally located in the north half (N1 /2) of Section 32, Township 8 North, Range 69 West, 6th P .M. , and a portion of the southwest quarter (SW1 /4) of Section 29 Township 8 North, Range 69 West, 6th P.M. , Larimer County, Colorado, the approximate location of which is shown on Exhibit 1 , attached hereto and incorporated herein by this reference . B . The City originally constructed in the 1880s a ditch channel on the Subject Land known as the "City Ditch" and has since the time of construction continued to operate, or allow others to operate, a ditch using the City Ditch channel and related improvements, including the operation of the Larimer County Canal No. 2 , as described herein below. The City Ditch channel traverses a portion of the Subject Land as described herein and shown on Exhibit 1 . C . The Company is the operator of a canal or ditch known as the Larimer County Canal No. 2, and certain water diversion and conveyance structures, culverts, pipes, equipment and other improvements used in connection with the operation of such ditch (the "Larimer No . 2 Ditch") . All diversions, structures, culverts, pipes, equipment and other improvements of the Company or the City associated with the Larimer No . 2 Ditch or the City Ditch on the Subject Land shall be referred to collectively as the "Ditch. " D . Beginning in 1906, the City leased the City Ditch to the Company. Subsequently, the City entered into an Easement Deed with the Company on June 21 , 2010, whereby the City granted the Company certain rights related to the Company' s use and enjoyment of the City Ditch for operation of the Ditch in accordance with specified terms and conditions and reserved its own interests in the Subject Land and the City Ditch, recorded in the real property records of Larimer County on August 3 , 2010, at Reception No . 20100044752 ("2010 Easement Agreement") . E . By this Agreement, the City and the Company wish to terminate and replace the 2010 Easement Agreement and abandon any rights and interests affecting the Subject Land thereunder. F . The Parties also wish to document and incorporate the prescriptive rights arising from historical use and operation of the Ditch on the Subject Land. G. The Parties agree that the Company has a valid existing easement and right of way for the Ditch on the Subject Land and sufficient lands on each side of the Ditch to allow it to fully enjoy and utilize the Ditch, subject to the City' s rights to use the Ditch as set forth herein. In an effort to better describe the extent of the easement and right of way for the Ditch enjoyed by the Company on the Subject Land, subject to the City' s rights to use the Ditch as set forth herein, and to define, recognize and memorialize in writing the mutual interests and correlative rights the Parties have in the Subject Land, the Parties enter into this Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration received by them, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows : 1 . Recitals. The factual recitals above are hereby incorporated by reference as though fully set forth. 2 . Abandonment of 2010 Easement Agreement. By this Agreement the City and the Company terminate and abandon any rights under the 2010 Easement Agreement on the Subject Land. The Parties understand and acknowledge that this Agreement, and the terms and conditions contained herein, supersedes and replaces the 2010 Easement Agreement as it relates to the Subject Land and any rights on, over, under or across the Subject Land. 3 . Grant of "Brinks Easement" on the Subject Land by the Trust — Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Ten Dollars ($ 10 . 00), and other good and valuable consideration, the receipt and adequacy of which the Trust acknowledges, the Trust grants, sells and conveys to the Company, its successors and assigns, as is, subject to all existing rights and claims of right, and without warranty of any kind, a perpetual, non- exclusive easement and right-of-way on, over, under and across the Brinks Easement Area on the Subject Land, as defined below in Paragraph 4 . 1 , for the uses stated herein, subject to the conditions and restrictions set forth below, and subject to the City' s rights to use the Ditch as set forth herein (referred to herein as the "Brinks Easement" because it crosses land now owned by the Trust) . 4, Brinks Easement on the Subject Land. 4. 1 . Scope of Brinks Easement. The Parties agree and acknowledge that the Trust' s conveyance of the Brinks Easement on the Subject Land includes an easement and right-of-way for the purposes set forth herein, together with sufficient lands on each side of the Ditch for its maintenance, repair, operation, improvement, enlargement, access (including, without limitation, vehicular and pedestrian), and includes the right to carry out any actions reasonably necessary to fully utilize and enjoy the easement and right of way; however, in no event shall said easement and right-of-way on the Subject Land be less than twenty-five feet in width on the east side of the Ditch, measured as twenty-five feet (25 ' ) from the top of the bank of the Ditch and twenty feet (20 ' ) on the west side of the Ditch 2 measured from the top of the bank of the Ditch ("Brinks Easement Area") . The approximate location of the Brinks Easement Area is shown on Exhibit 1 . Nothing herein is intended to grant an easement across the Subject Land for general public . 4.2 . Point of Reference for the Location ofBrinks Easement. The centerline of the Ditch varies significantly throughout the Subject Land, and, therefore, may not provide a consistent or practical reference point. Instead, the top of the bank of the Ditch as it exists at any given point in time shall be the point of reference. 4. 3 . Right of Ingress and Egress . The Company shall also have the right of ingress and egress to and from the Ditch and Brinks Easement over and across the Subject Land by means of roads and lanes thereon, if such exist or as such may be constructed by the Trust in the future, otherwise by such route or routes as shall occasion the least practicable damage and inconvenience to the Trust. The Company agrees than certain trees may be permitted to remain in the Brinks Easement on the Subject Land, and therefore the Company may go outside of the Brinks Easement where necessary to avoid obstructions . 4.4 . No Obstructions on Brinks Easement. The Trust, its heirs, successors, and/or assigns, shall not erect nor place any building, structure, drainage pipes, improvement, fence, landscaping, shrubbery, or tree on or within the Ditch and/or Brinks Easement or alter the Brinks Easement Area in any way, except as expressly set forth herein. The Company shall not be liable for damage to any unauthorized alterations of the Brinks Easement Area, and the Company may remove any of the same. The Trust shall be liable to the Company for any damages or costs resulting from the alteration of the Brinks Easement Area in violation of this provision. However, the Trust shall have certain rights and obligations related to the Brinks Easement, as set forth below in Paragraph 6 .2 . 4. 5 . Brinks Easement Inclusions . The Brinks Easement described herein includes, but is not limited to, the Ditch, the beds, banks, slopes, roadway, head gates, diversion boxes, flumes, spillways, and erosion and structural support systems, whether presently existing or constructed in the future. The Trust, its heirs, successors, and/or assigns, shall take no action that reduces in size, disturbs or otherwise affects the Brinks Easement. 4. 6 . Repair and Maintenance of Ditch . In the event it is necessary for the Company to repair or maintain the Ditch due to the actions of the Trust, its employees, invitees, successors, and/or assigns, the Trust shall reimburse the Company for such repair or maintenance. Determination of whether repair or maintenance is necessary shall be at the discretion of the Company. Any disputes related to determining which party is responsible for damage to the Ditch shall be resolved in accordance with the terms and conditions of this Agreement. 4. 7 . The Company as Owner of Ditch and Appurtenances . The Trust acknowledges and understands that the Company is the owner of the Ditch and other appurtenances related to the operation, maintenance, and administration of the Ditch. The Company shall have full power to operate, maintain, alter, enlarge, clean and manage the Ditch and Brinks Easement, subject to the provisions of Paragraph 8 of this Agreement. In 3 the event, however, that any such action on the part of the Company could reasonably be expected to affect the Trust ' s interest in the Subject Land, except in the event of emergency repairs, the Company agrees to give prior notice to the Trust and to reasonably cooperate with the Trust to avoid damages to the Subject Land. In the event of emergency repairs, the Company agrees to provide notice of the emergency repair to the Trust as soon as reasonably practicable. 5 . Other Company Improvements on the Subject Land. The Company shall be entitled to install roads and other types of improvements and structures in the Brinks Easement Area on the Subject Land, provided that installation of any impervious pavement shall be subject to the consent of the Trust (or the Trust ' s successor in title to the Subject Land, if applicable) . The Company shall have the right to mark the boundaries of the Brinks Easement Area and to install or utilize signs on or over the Brinks Easement Area. 6 . Limitations on the Trust Uses and Improvements on the Subject Land. The Trust acknowledges and agrees that the use and improvement of the Subject Land by the Trust, and its heirs or successors in-title, shall be limited as follows : 6 . 1 . No Interference. The Trust, and its heirs or successors in-title, shall not use or modify the Subject Land in any manner that unreasonably interferes with the full enjoyment and exercise by the Company and persons with which the Company has contracted for the use of the Ditch, including the City under this Agreement ("Contractees") . 6 .2 . Permitted Uses. The Trust, and its heirs or successors in-title, shall be entitled to access and use the Brinks Easement Area provided that such access or use is not inconsistent or incompatible with the rights of the Company and its Contractees, as the Company may expressly permit or authorize and subject to such limitations and conditions as the Company deems necessary or appropriate, including: 6 .2 . 1 . The right of the Trust, at its sole cost and expense, to make limited crossing of the Brinks Easement Area on the Subject Land and construct such limited improvements as may be necessary for personal access by the Trust and its invitees to adjacent property owned by the Trust; provided, however, that any such crossing shall be consistent with and shall not interfere with the Company' s and its Contractees ' existing or prospective use of the Brinks Easement Area, and shall be subject to the express written consent of the Company, in its reasonable discretion, and further provided that the Company acknowledges that two (2) existing bridges in the northwest quarter (NW1 /4) of the northwest quarter (NW1 /4) of Section 32 , Township 8 North, Range 69 West, 6th P .M. , Larimer County, have been previously constructed across the Brinks Easement Area for the benefit of the Trust, and the Company hereby consents to the continued use and maintenance of the same, subject to the condition that the Trust, at its own sole cost, expense and risk maintain the same in a safe and secure condition and prevent any damage to the Ditch or the Brinks Easement Area or any interference with the use of the Brinks Easement Area by the Company or those taking under the Company, and further consent to the replacement or relocation of said existing bridges to locations and consistent with 4 designs and specifications determined to be acceptable by the Company, in writing, in its reasonable discretion; 6 .2 .2 . The right of the Trust, at its sole cost, expense and risk, to prune and remove woody material from such trees as may from time to time be present upon the Brinks Easement Area on the Subject Land, including but not limited to the trees referred to in Paragraph 4 .4 above, and to harvest fruit from such fruit-bearing trees as may from time to time be present upon the Brinks Easement Area; provided, however, that such right for the benefit of the Trust is not intended to, and does not create, any obligation of the Company to maintain, retain or take or refrain from taking any action related to any such trees, and provided further that the exercise of said limited right by the Trust or its successors-in-interest to the Subject Land shall constitute an ongoing waiver of any claims against the Company, and shall be conditioned upon agreement by the Trust to be liable for, any damage or injury in connection with Grantor' s exercise of the said limited right; 6 .2 . 3 . The right of the Trust, at its sole cost, expense and risk, to continue the use, if any, of the following structures that cross and convey water across the Brinks Easement Area, all of which are in existence at the time of this Agreement: (i) a pipe associated with the Burns Ditch, which was the subject of Case No . W- 5429, District Court, Water Division 1 ; (2) a flume/pipe comprising a portion of the ditch running from Claymore Lake Reservoir to the Cache la Poudre River; and (3) an existing flume comprising a portion of a lateral from the Pleasant Valley and Lake Canal; and 6 .2 .4. The right of the Trust, at its sole cost, expense and risk, to continue the use, if any, of an existing lateral from the Larimer No . 2 Ditch on the Brinks Easement Area to carry the Trust ' s rights to Larimer No. 2 irrigation flows, to the extent such crossing is present and such rights exist as of the date of this Agreement. 7 , Overhead Power Transmission Lines in the Brinks Easement Area, The Trust and the Company each agree that the installation of overhead power transmission lines on the Brinks Easement Area on the Subject land shall be subject to the consent of the Trust or its successors-in- title to the Subject Land, and the Company, each in its reasonable discretion. 8 . The Company' s and the City' s Use of the Ditch. Before the execution of this Agreement, the Company and the City have been entitled to use the Easement on the Subject Land and the Ditch to convey such water as they deem appropriate, and have been entitled to determine their respective rights and obligations in connection with the Easement, all without the consent or agreement of the Trust. The Company and the City agree that their respective rights to use the Ditch on the Subject Land, and other lands over which the Ditch traverses (i.e. , the entire Ditch), shall be as follows : 8 . 1 . The Company 's Rights to the Use of the Ditch Up to Its Capacity and to Enter Into Agreements With Other Parties for the Rights to the Use of the Ditch Up to Its Capacity. The Company shall have the right, at any time and from time to time, to use the Ditch up to 5 its Capacity, as defined below, for the conveyance of water. The Company shall also have the right to enter into agreements with Contractees to authorize their use of the Ditch up to its Capacity, as defined below, subject to the terms and conditions of this Agreement. For the purposes of this Agreement, the "Capacity" is defined as the maximum amount of water that can be carried in the Ditch absent any enlargement of the Ditch. The Company shall determine, in its sole discretion, the amount of Capacity at any given time . 8 . 1 . 1 . Priority of Use of the Capacity. The rights to the use of the Capacity shall be based on a priority system. Under this priority system, if a party with a prior right to the use of the Capacity is not using all or part of the Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Capacity. Any agreements that the Company enters into with Contractees shall be pursuant to the priority system described herein. 8 . 1 . 1 . 1 . First Priority: Company Water for Delivery to Shareholders . The Company shall have the first priority to use the Capacity to meet its operational obligations and to carry water attributable to water rights and contractual rights held by the Company for delivery to its shareholders on a pro rata basis . Such water may be attributable to, but not necessarily limited to : (i) diversions to the Ditch under Ditch Priority #57 with an adjudication date of April 11 , 1882 and an appropriation date of April 1 , 1873 , originally decreed for direct irrigation; (ii) water carried by the Company by arrangement with and for the benefit of the Warren Lake Reservoir Company pursuant to existing priorities for storage as follows : (a) Ditch Priority #76 for five hundred fifty (550) acre-feet with an adjudication date of April 11 , 1882 and an appropriation date of April 15 , 1875 ; (b) Reservoir Priority #31 for one thousand five hundred forty-five ( 1 ,545) acre-feet with an adjudication date of December 9, 1904 and an appropriation date of January 10, 1893 ; and (c) Reservoir Priority # 100 for eight hundred eighteen (818) acre-feet with an adjudication date of April 22 , 1922 and an appropriation date of July 27, 1908 , totaling two thousand nine hundred thirteen (2 ,913 ) acre-feet with no right of refill ; (iii) the Company' s historical deliveries of water during the irrigation season pursuant to contractual or leased rights to water available from the Colorado-Big Thompson Project, or pursuant to exchanges listed in the Decree in Case No . W- 8086-75 , Water Division No . 1 , entered on March 24, 1978 ; and (iv) water historically carried for the benefit of the owner(s) of the John R. Brown Ditch pursuant to Ditch Priority # 14 with an adjudication date of April 11 , 1882 and an appropriation date of May 1 , 1865 , decreed for direct irrigation at a flow rate of three and five/tenths (3 . 5) cubic feet per second (cfs) . 8 . 1 . 1 .2 . Second Priority: Excess Capacity Belonging to Company Shareholders . If there is Capacity that is not being used by the Company under its first priority described in the previous paragraph, such unused capacity shall be deemed "Excess Capacity," and the shareholders in the Company shall have the second priority to use the Excess Capacity to 6 carry water attributable to any water rights and contractual rights that may be lawfully delivered through the Ditch, and the amount of such Excess Capacity shall belong to the shareholders in the Company on a pro rata basis as determined by the Company. A shareholder' s use of Excess Capacity shall be made pursuant to an arrangement with the Company. By way of illustration only, if there is 100 cfs of the Capacity that is not being used by the Company, and a shareholder owns 5 % of the shares in the Company, said shareholder may have the right to use 5 cfs of such Excess Capacity upon arrangement with the Company. By way of illustration further only, if said shareholder desires to use more than 5 cfs of the Capacity that is not being used by the Company, said shareholder must secure the right to use the "Residual Excess Capacity" as described in the following paragraph. 8 . 1 . 1 . 3 . Third Priority: Residual Excess Capacity. If there is Capacity that is not being used by the Company under its first priority described above and is not being used by shareholders under their second priority described in the previous paragraph, such unused capacity shall be deemed "Residual Excess Capacity, " and Contractees shall have the right to use said Residual Excess Capacity pursuant to an agreement with the Company. The rights to the Residual Excess Capacity shall be based on a priority system, under which if a party with a prior right to the use of the Residual Excess Capacity is not using all or part of the Residual Excess Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Residual Excess Capacity. 8 .2 , The City 's Rights to the Use of the Capacity of the Ditch . The City understands and agrees that Company' s first obligations are to their stockholders as described above and use of Capacity will be permitted only if such uses would in no way be detrimental to the Company or its stockholders . The City shall be entitled to use the Ditch (being its entire length) as a shareholder in the Company and as a Contractee with the Company, as follows : 8 .2 . 1 . Excess Capacity Rights . The City currently owns 104 .21171 shares of the Company (approximately 7 1 . 1 %) and therefore currently has such a pro rata entitlement to the use of the Excess Capacity in the Ditch, as described above. The City' s entitlement to the use of the Excess Capacity in the Ditch as described above shall be based on its pro rata ownership of shares in the Company, as that may change from time to time. 8 .2 .2 . Residual Excess Capacity Rights. The City currently has no rights to Residual Excess Capacity in the Ditch. Nothing in this Agreement shall preclude the Company from granting and the City from acquiring Residual Excess Capacity in the Ditch in the future. 8 .2 . 3 . Terms and Conditions on the City' s Use of Capacity Under Its Excess Capacity Rights . 7 8 .2 . 3 . 1 . The City shall be entitled to use Capacity under its Excess Capacity Rights for the carriage and conveyance of any water to which the City is entitled to use pursuant to an appropriation (whether decreed or undecreed) , lease, contract, and/or any other legal entitlement or right ("City Water") . Said rights to use Capacity are limited to direct uses by the City and may not be assigned or used by the City for the carriage of water for others . 8 .2 . 3 .2 . So long as the City is the majority owner of shares in the Company, the City shall not be charged for use of Capacity under its Excess Capacity Rights except for assessments associated with the City' s shares of stock and as set forth in Paragraph 8 .2 . 3 . 5 . 8 .2 . 3 . 3 . At times when the City desires to utilize Capacity under its Excess Capacity Rights, the City shall communicate the details of its desired use to the Company (including the point of inflow, source and amount of water, timing, release, point of delivery, and other relevant information reasonably requested by the Company) and request review and approval from the Company, which request shall be timely considered, and approval shall not be unreasonably withheld so long as such request is consistent with this Agreement and will not interfere with Company operations . 8 .2 . 3 .4. The Company may assess the evaporation, seepage, and similar transportation losses (also known as "shrink") on City Water carried in the Ditch under the City' s Excess Capacity Rights. If City Water is the only water being carried in the Ditch, the City will physically incur all of the transportation losses and the Company will not charge any additional transportation losses . If water other than City Water is being carried in the Ditch when City Water is being carried in the Ditch, the City Water will be assessed for transportation losses at the same rate as assessed to other users of the Ditch, at a reasonable rate determined by the Company. 8 .2 . 3 . 5 . Pursuant to the terms and conditions of this Paragraph, the Company may charge the City for the costs of the City carrying water in the Ditch under the City' s Excess Capacity Rights, which may include administrative, engineering, legal, and personnel costs . Such costs shall not exceed the annual limit. The annual limit shall be $ 1 ,500 initially and may be adjusted by the Company to reflect any inflation occurring since the date of this Agreement and the date that the Company charges the City under this Agreement. The inflation index to be used shall be the ENR Index — Construction Costs, or if that index is discontinued, the Company shall use a comparable inflation index agreed upon by the parties. Such costs 8 shall be charged to the City by written invoice no less than yearly and shall be paid by the City within 60 days of the receipt of said invoice. The Company shall provide the City with invoices and additional documentation to substantiate such charges . 8 . 3 . Enlargement of the Ditch. The Company shall have the right to enlarge the Ditch, or to contract with third parties for the enlargement of the Ditch, provided, however, that any such enlargement shall not adversely affect the rights of the Company shareholders, Contractees, and the City. For example, and not by means of limitation, if the ability of the Ditch to carry water were reduced for whatever reason and over whatever period of time, and if the Company were to increase the ability of the Ditch to carry water to an amount that the Ditch at one time historically carried water, such increased capacity would not be an enlargement of the Ditch, but would instead be maintenance and the restoration of existing Capacity in which Company shareholders, Contractees , and the City have rights . The City may not construct facilities on or in, or operate or modify the Ditch, its headgate, or any other reservoir, ditch, facility or other structure or property owned, controlled or operated by the Company, unless the written approval of the Company' s Board of Directors is obtained. Such approval may be withheld or denied in the sole and absolute discretion of the Board. The Company, and not the City, shall operate the Ditch to effectuate City' s utilization of its Capacity permitted herein. 9 . 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 the Trust: James S . Brink Trust c/o Rose L. Brinks, Trustee If to the Company: The Larimer County Canal No . 2 Irrigating Company c/o President If to the City: The City of Fort Collins c/o In the event a different person or entity than the person or entity listed above shall be given notice, the other party shall be notified of this change in writing pursuant to this paragraph. 9 10 . Covenant Running with Land. This Agreement, and all of its provisions, is binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns, and shall be a covenant running with the Subject Land. 11 , Recordation. This Agreement shall be recorded in the records of the Clerk and Recorder of Larimer County, Colorado . The cost of such recording shall be borne equally by the Company and the City. 12 , Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado, excluding conflicts of interest principles . 13 . Severability. If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. 14. Costs of Legal Proceedings . In the event any of the parties institute legal proceedings with respect to this Agreement or the enforcement thereof, or of any term and condition contained herein, the prevailing party shall be entitled to court costs and reasonable attorneys ' fees incurred by such party in connection with such legal provisions . 15 . Waiver. The failure of any Party to exercise any right or power given hereunder, or to insist upon strict compliance by the other Party with its obligations set forth herein and/or any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver of either Party' s rights to demand strict compliance with the terms and conditions of this Agreement. 16 , Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] 10 THE JAMES S. BRINKS TRUST By: Rose L. Brinks, as Trustee of the James S . Brinks Trust, formed under the Trust Agreement dated November 30, 2007 STATE OF COLORADO ) ss . COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of , 2015 , by Rose L. Brinks, Trustee of the James S . Brinks Trust formed under the Trust Agreement dated November 30, 2007 . WITNESS my hand and official seal. Notary Public My commission expires : 11 THE CITY OF FORT COLLINS , a municipal corporation. By: Mayor ATTEST : City Clerk APPROVED AS TO FORM : Assistant City Attorney STATE OF COLORADO ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of , 20159 by , as Mayor of The City of Fort Collins, Colorado, a municipal corporation. WITNESS my hand and official seal. Notary Public My commission expires : 12 THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit corporation By: President STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 120151 by , President of the Larimer County Canal No. 2 Irrigating Company, a Colorado nonprofit corporation. WITNESS my hand and official seal. Notary Public My commission expires : 13 _ Cdc hd �I Parcel Number: 9832000009 Owner: Brinks James S Trust P all Number: 9832000 jner: Brinks James S Trus i cel Nu 832100020 Own Brinks James S Tru t 19 00 cPr d�j \ O�fO6 a, j mel Number: 983210002 ner: Brinks James S Tru I ' IF FT I I CITY OF FORT COLLINS GEOGRAPHIC INFORMATION SYSTEM MAP PRODUCTS - These ma products and all underlying data are tleveloetl for use to City of Fort Collins for its intent al u pp p p by M purposes Easement from Top of Bank 20 West Side / 25 East Side and were not its tsiaccu or intendedf n&tl for genial use by members of to public. The miry makes no representation or anfyamlordspro finalbundHoss orcomplatcemen ofI insoniwlan nsacwagln thereon LEE City of COLLINS dimensions, mmoars pmpeM boo OF ME GRAN NBI FIFT O ion m airy may OR FILL thereon O UH FTY OF FORT Y COWNSMN(ES NOSE, EXPNOEMER IMPLIED, OR OTHES FRWESSOUCTS FOR $(•y ¢ t_q 212 w E City of Fort Collins Lakes, Rivers, Streams Fort Co ins PARTICOIAR PURPOSE, EXPRESSED OR IMPLIED, , map RESPECTTO THESE MPP PRODUCTS OR THE UNDERLYING DATA My users of these map pmtlutls rrep Lumbafions,covenants a, aaep6to h PS IS,WITH harmless �� FAULTS, aitlassunennageresponsibilityflow, ra inte use turn a use,of is map saM agre¢tabaate mirycitys Facing i—i—iZJMI¢5 Exhibit 1 frvnani agairmalldamaba low,Independent yell ream ofal char tlsmap paauymmnse obtain of dby ny users of o ools oQi o01s f1.06 s Brinks James S Trust Property maietoducto mmeraincic mtlThentlemvedains, and all alltl nor beh dliM1erefor my Nbeotlainage loss or lablitherep ie shunaah^9dtla. Thecitydsl,whic arielau nmbabeie lim Case arypprodcts andall or Meuse th thy aid iwrson o dreg indretl, ormnseryential,wNM a%es m may arise from tese rrep pmtluvtr uteuse taeaf M am perean nrenoty. Printed: March 05, 2015 [EXHIBIT D TO AGREEMENT] EASEMENT AGREEMENT This EASEMENT AGREEMENT ("Agreement") is entered into as of the day of , 2015 , between the CITY OF FORT COLLINS , COLORADO, a municipal corporation ("City") and the LARIMER COUNTY CANAL NO . 2 IRRIGATING COMPANY, a Colorado nonprofit company ("Company") . The City and the Company are collectively referred to herein as the "Parties." RECITALS A. The City originally constructed in the 1880s a ditch channel known as the "City Ditch" and has since the time of construction continued to operate, or allow others to operate, a ditch using the City Ditch channel and related improvements, including the operation of the Larimer County Canal No . 2, as described herein below. B . The Company is the operator of a canal or ditch known as the Larimer County Canal No. 2 , and certain water diversion and conveyance structures, culverts, pipes, equipment and other improvements used in connection with the operation of such ditch (the "Larimer No . 2 Ditch") . All diversions, structures, culverts, pipes, equipment and other improvements of the Company or the City associated with the Larimer No. 2 Ditch or the City Ditch shall be referred to collectively as the "Ditch. " C . Beginning in 1906, the City leased the City Ditch to the Company. Subsequently, the City entered into an Easement Deed with the Company on June 21 , 2010, whereby the City granted the Company certain rights related to the Company' s use and enjoyment of the City Ditch for operation of the Ditch in accordance with specified terms and conditions and reserved its own interests in the Waterworks Land, as defined below, and the City Ditch, recorded in the real property records of Larimer County on August 3 , 2010, at Reception No . 20100044752 ("2010 Easement Agreement") . D. By this Agreement, the City and the Company wish to terminate and replace the 2010 Easement Agreement and abandon any rights and interests thereunder affecting the following parcel of land subject to the 2010 Easement Agreement which is traversed by the Ditch: certain real property conveyed to Grantor by Warranty Deed on September 18 , 1889, and recorded in the real property records of Larimer County on April 30, 1891 , at Reception Number 36766, Book 78, Page 490, generally located in the northwest quarter (NW 1 /4) of the southeast quarter (SE 1 /4) of Section 32, Township 8 North, Range 69 West, 6th P .M. , Larimer County ("Waterworks Land") . E . The Parties also wish to document and incorporate the prescriptive rights arising from historical use and operation of the Ditch on the Waterworks Land. F . The Parties agree that the Company has a valid existing easement and right of way for the Ditch on the Waterworks Land and sufficient lands on each side of the Ditch to allow it to fully enjoy and utilize the Ditch, subject to the City' s rights to use the Ditch as set forth herein. In an effort to better describe the extent of the easement and right of way for the Ditch enjoyed by the Company on the Waterworks Land, subject to the City' s rights to use the Ditch as set forth herein, and to define, recognize and memorialize in writing the mutual interests and correlative rights the Parties have in the Waterworks Land, the Parties enter into this Agreement. AGREEMENT NOW, THEREFORE, for good and valuable consideration received by them, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows : 1 . Recitals . The factual recitals above are hereby incorporated by reference as though fully set forth. 2 . Abandonment of 2010 Easement Agreement. By this Agreement the City and the Company terminate and abandon any rights under the 2010 Easement Agreement on the the Waterworks Land. The Parties understand and acknowledge that this Agreement, and the terms and conditions contained herein, supersedes and replaces the 2010 Easement Agreement as it relates to the Waterworks Land and any rights on, over, under or across the the Waterworks Land. 3 . Grant of "Waterworks Easement" on the Waterworks Land by the City — Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Ten Dollars ($ 10. 00), and other good and valuable consideration, the receipt and adequacy of which the City acknowledges, the City grants, sells and conveys to the Company, its successors and assigns, as is, subject to all existing rights and claims of right, and without warranty of any kind, a perpetual, non-exclusive easement and right-of-way on, over, under and across the Waterworks Easement Area on the Waterworks Land, as defined below in Paragraph 4, for the uses stated herein, subject to the conditions and restrictions set forth below, and subject to the City' s rights to use the Ditch as set forth herein (referred to herein as the "Waterworks Easement" because it crosses the City' s Waterworks Land) . 4. Scope of Waterworks Easement. The Parties agree and acknowledge that the City' s conveyance of the Waterworks Easement on the Waterworks Land includes an easement and right- of-way for the purposes set forth herein. The location of the "Waterworks Easement Area" is set forth in Exhibit 1 , comprising seven (7) pages and "Exhibits A, B, and C," which is incorporated by this reference . 5 . The Company' s Rights in the Waterworks Easement Area. In addition to the right to convey water in the Ditch as set forth in Paragraph 8 , the Company shall have the following rights in the Waterworks Easement Area. 5 . 1 . Right ofingress and Egress . The Company shall have the right of ingress to and egress from the Waterworks Easement Area over and the Waterworks Land by means of any roads and lanes thereon and otherwise in a manner reasonably expected to minimize disturbance and impacts to the Waterworks Land or the improvements upon or natural features thereof. 2 5 .2 . Improvements . The Company shall have the right from time to time to improve, reconstruct and replace the Ditch and related improvements with improvements of a like number, size and nature, either in the original location or at an alternate location or locations within the Waterworks Easement Area satisfactory to the City in its sole discretion, for the authorized purposes set forth herein, provided that the Company must give the City advance notice of any change in the type, number or location of improvements and cannot proceed until the City has provided its written consent, which shall not be unreasonably withheld or delayed. 5 . 3 . Gates . The Company shall have the right to install, maintain and use gates in all fences which now cross or shall hereafter cross the Waterworks Easement Area. 6 , The City' s Rights in the Waterworks Easement Area. In addition to the right to convey water in the Ditch as set forth in Paragraph 8, the City shall have the following rights in the Waterworks Easement Area. 6 . 1 , Non-Interference. The City reserves the right to use the Waterworks Easement Area for purposes that will not unreasonably interfere with the Company' s full enjoyment of the rights granted herein. 6 .2 . Trails and Roads. The City reserves the right to install roads, trails, paths, whether or not paved or hard-surfaced, and other types of improvements in the Waterworks Easement Area and over the Company' s improvements subject to the written consent of the Company, which consent shall not be unreasonably withheld or delayed. 6 . 3 . Structures. The City reserves the right to install permanent buildings or structures on the Waterworks Easement Area subject to the written consent of the Company, which consent shall not be unreasonably withheld or delayed. 6 .4 . Signs . The City reserves the right to install or utilize signs on or over the Waterworks Easement Area, subject to the written consent of the Company, which consent shall not be unreasonably withheld or delayed. 6 . 5 . Maintenance of City Improvements. The Company shall not be responsible for maintenance of improvements of the City, except as specifically provided herein, but shall be responsible for repair, restoration and replacement of such improvements in the event they are damaged or destroyed by the Company or any person acting under the Company' s rights hereunder. 7 . The Company' s Obligations Regarding the Waterworks Easement Area. The Company shall have the following obligations regarding the Waterworks Easement Area. 7 . 1 . Coordination. All activities by the Company on the Waterworks Easement Area, including access across the City' s Property, must be carried out in a manner and on a schedule reasonably expected to minimize disturbance to the natural 3 features of said property, any improvements thereon, and the City' s intended purposes therefor. 7 . 2 . Maintenance. The Company must maintain the Improvements used by the Company in the Waterworks Easement Area, including but not limited to the ditch channel and any structures installed in the ditch for the Company' s use, in an good condition, and a reasonably safe manner, with the Parties recognizing the inherent dangers of an earthen irrigation canal, and repair the Improvements as reasonably necessary to ensure the Improvements do not cause injury or damage to persons or property. 7 . 3 . Inspection and Maintenance. Other than for routine inspection, operations, repair, and reasonably noninvasive maintenance, with the Parties recognizing that routine inspection, operations, repair, and maintenance are by their nature moderately invasive to the adjacent properties, the Company shall notify the City at least five (5 ) business days prior to performing work (including, but not limited to, construction, maintenance, and repair) on or within the Waterworks Easement Area. For the purposes of this Agreement, and by way of example and not by limitation, the following activities shall not be considered to be routine inspection, operations, repair, and reasonably noninvasive maintenance and shall require prior notice to the City under this paragraph: the removal of tree(s) with a trunk diameter larger than one inch ( 1 "), any excavations, and burning or spraying of the Ditch. In advance of any nonemergency work (excluding routine inspection and noninvasive maintenance), the Company shall submit a work plan and schedule to the City for approval, which approval shall not be unreasonably delayed or withheld. The Company will need a Temporary Construction Easement from the City if working on any property of the City outside of the Waterworks Easement Area. Notwithstanding these notification requirements, in cases of emergency repair, the Company shall notify the City of the emergency and provide related construction plans and schedules as soon as reasonably practicable . 7 .4 . Damages . In the event damage occurs from the Company' s use of or activities over or within the Waterworks Easement Area, including but not limited to the installation, maintenance, or operation of the Improvements within the Waterworks Easement Area, the Company agrees to make such repairs or take such other action as may be necessary to restore the Waterworks Easement Area and the Waterworks Land to a condition comparable to their condition prior to the Company' s activities in the Waterworks Easement Area, including but not limited to the reseeding and replanting of any disturbed areas in a manner reasonably satisfactory to the City, and the provision of ongoing maintenance of any seeded or planted areas, correction of any subsidence, and restoration of any other improvements or conditions impacted by the Company' s activities, until such time as any such repair and restoration is fully established and stabilized. 7 . 5 . Indemnity and Insurance. The Company agrees to indemnify the City, its officers, agents, employees, representatives, successors and assigns from all 4 claims and liability, including but not limited to the City' s reasonable legal fees and costs, including attorneys ' fees, for claims made by third persons for personal injury, death or property damage resulting from or arising out of the Company' s use of the Waterworks Easement Area or other activities of the Company on the Waterworks Land, including but not limited to the construction, installation, operation, repair, and maintenance of improvements within the Waterworks Easement Area, and for any actions or omissions by the Company in violation of this Agreement. 7 . 6 . The City agrees to undertake a good faith review of the terms and conditions of Paragraph 7 . 5 in order to determine whether such terms and conditions should be revised by a subsequent agreement of the Parties to address the issues addressed in that paragraph in a manner that is more advantageous to the Parties . The City shall confer with Company representatives regarding the City' s review within three (3) months of the execution of this Agreement, unless the parties agree to modify the timing of such conferral . Any such agreement shall be recorded in the records of the Clerk and Recorder of Larimer County, Colorado . THE COMPANY' S AND THE CITY'S USE OF THE DITCH 8 , The Company' s and the City' s Use of the Ditch. The Company and the City agree that their respective rights to use the Ditch on the Waterworks Land and other lands over which the Ditch traverses (i. e. , the entire Ditch), shall be as follows : 8 . 1 . The Company 's Rights to the Use of the Ditch Up to Its Capacity and to Enter Into Agreements With Other Parties for the Rights to the Use of the Ditch Up to Its Capacity. The Company shall have the right, at any time and from time to time, to use the Ditch up to its Capacity, as defined below, for the conveyance of water. The Company shall also have the right to enter into agreements with Contractees to authorize their use of the Ditch up to its Current Capacity, as defined below, subject to the terms and conditions of this Agreement. For the purposes of this Agreement, the "Capacity" is defined as the maximum amount of water that can be carried in the Ditch absent any enlargement of the Ditch. The Company shall determine, in its sole discretion, the amount of Capacity at any given time . 8 . 1 . 1 . Priority of Use of the Capacity. The rights to the use of the Capacity shall be based on a priority system. Under this priority system, if a party with a prior right to the use of the Capacity is not using all or part of the Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Capacity. Any agreements that the Company enters into with Contractees shall be pursuant to the priority system described herein. 8 . 1 . 1 . 1 . First Priority: Company Water for Delivery to Shareholders . The Company shall have the first priority to use the Capacity to meet its operational obligations and to carry water attributable to water rights and contractual rights held by the Company for delivery to its shareholders on a pro rata basis . Such water may be attributable to, but not necessarily limited to : (i) diversions to the Ditch under Ditch Priority #57 with an adjudication date of April 11 , 1882 and an appropriation date of April 5 19 1873 , originally decreed for direct irrigation; (ii) water carried by the Company by arrangement with and for the benefit of the Warren Lake Reservoir Company pursuant to existing priorities for storage as follows : (a) Ditch Priority #76 for five hundred fifty (550) acre-feet with an adjudication date of April 11 , 1882 and an appropriation date of April 15 , 1875 ; (b) Reservoir Priority #31 for one thousand five hundred forty-five ( 1 ,545) acre-feet with an adjudication date of December 9, 1904 and an appropriation date of January 10, 1893 ; and (c) Reservoir Priority # 100 for eight hundred eighteen (818) acre-feet with an adjudication date of April 22 , 1922 and an appropriation date of July 27, 1908 , totaling two thousand nine hundred thirteen (2 ,913 ) acre-feet with no right of refill; (iii) the Company' s historical deliveries of water during the irrigation season pursuant to contractual or leased rights to water available from the Colorado-Big Thompson Project, or pursuant to exchanges listed in the Decree in Case No. W-8086-75 , Water Division No . 1 , entered on March 24, 1978 ; and (iv) water historically carried for the benefit of the owner(s) of the John R. Brown Ditch pursuant to Ditch Priority # 14 with an adjudication date of April 11 , 1882 and an appropriation date of May 1 , 1865 , decreed for direct irrigation at a flow rate of three and five/tenths (3 . 5) cubic feet per second (cfs). 8 . 1 . 1 .2 . Second Priority: Excess Capacity Belonging to Company Shareholders . If there is Capacity that is not being used by the Company under its first priority described in the previous paragraph, such unused capacity shall be deemed "Excess Capacity," and the shareholders in the Company shall have the second priority to use the Excess Capacity to carry water attributable to any water rights and contractual rights that may be lawfully delivered through the Ditch, and the amount of such Excess Capacity shall belong to the shareholders in the Company on a pro rata basis as determined by the Company. A shareholder' s use of Excess Capacity shall be made pursuant to an arrangement with the Company. By way of illustration only, if there is 100 cfs of the Capacity that is not being used by the Company, and a shareholder owns 5 % of the shares in the Company, said shareholder may have the right to use 5 cfs of such Excess Capacity upon arrangement with the Company. By way of illustration further only, if said shareholder desires to use more than 5 cfs of the Capacity that is not being used by the Company, said shareholder must secure the rights to use the "Residual Excess Capacity" as described in the following paragraph. 8 . 1 . 1 . 3 . Third Priority: Residual Excess Capacity. If there is Capacity that is not being used by the Company under its first priority described above and is not being used by shareholders under their second priority described in the previous paragraph, such unused capacity shall be deemed "Residual Excess Capacity," and Contractees shall have the right to use said Residual Excess Capacity pursuant to an agreement with the Company. The rights to the Residual Excess Capacity shall be based on a priority system, under which if a party with a prior right to the use of the 6 Residual Excess Capacity is not using all or part of the Residual Excess Capacity, the party with the next priority shall be entitled to the use of any unused portion of the Residual Excess Capacity. 8 .2 , The City 's Rights to the Use of the Capacity of the Ditch . The City understands and agrees that Company' s first obligations are to their stockholders as described above and use of Capacity will be permitted only if such uses would in no way be detrimental to the Company or its stockholders . The City shall be entitled to use the Ditch (being its entire length) as a shareholder in the Company and as a Contractee with the Company, as follows : 8 .2 . 1 . Excess Capacity Rights . The City currently owns 104.21171 shares of the Company (approximately 7 1 . 1 %) and therefore currently has such a pro rata entitlement to the use of the Excess Capacity in the Ditch, as described above . The City' s entitlement to the use of the Excess Capacity in the Ditch as described above shall be based on its pro rata ownership of shares in the Company, as that may change from time to time. 8 .2 .2 . Residual Excess Capacity Rights. The City currently has no rights to Residual Excess Capacity in the Ditch. Nothing in this Agreement shall preclude the Company from granting and the City from acquiring Residual Excess Capacity in the Ditch in the future . 8 . 2 . 3 . Terms and Conditions on the City' s Use of Capacity Under Its Excess Capacity Rights. 8 .2 .3 . 1 , The City shall be entitled to use Capacity under its Excess Capacity Rights for the carriage and conveyance of any water to which the City is entitled to use pursuant to an appropriation (whether decreed or undecreed), lease, contract, and/or any other legal entitlement or right ("City Water") . Said rights to use Capacity are limited to direct uses by the City and may not be assigned or used by the City for the carriage of water for others. 8 .2 . 3 .2 . So long as the City is the majority owner of shares in the Company, the City shall not be charged for use of Capacity under its Excess Capacity Rights except for assessments associated with the City' s shares of stock and as set forth in Paragraph 8 .2 . 3 . 5 . 8 .2 . 3 . 3 . At times when the City desires to utilize Capacity under its Excess Capacity Rights, the City shall communicate the details of its desired use to the Company (including the point of inflow, source and amount of water, timing, release, point of delivery, and other relevant information reasonably requested by the Company) and request review and approval from the Company, 7 which request shall be timely considered, and approval shall not be unreasonably withheld so long as such request is consistent with this Agreement and will not interfere with Company operations . 8 .2 . 3 .4 . The Company may assess the evaporation, seepage, and similar transportation losses (also known as "shrink") on City Water carried in the Ditch under the City' s Excess Capacity Rights . If City Water is the only water being carried in the Ditch, the City will physically incur all of the transportation losses and the Company will not charge any additional transportation losses . If water other than City Water is being carried in the Ditch when City Water is being carried in the Ditch, the City Water will be assessed for transportation losses at the same rate as assessed to other users of the Ditch, at a reasonable rate determined by the Company. 8 .2 . 3 . 5 . Pursuant to the terms and conditions of this Paragraph, the Company may charge the City for the costs of the City carrying water in the Ditch under the City' s Excess Capacity Rights, which may include administrative, engineering, legal, and personnel costs . Such costs shall not exceed the annual limit. The annual limit shall be $ 1 ,500 initially and may be adjusted by the Company to reflect any inflation occurring since the date of this Agreement and the date that the Company charges the City under this Agreement. The inflation index to be used shall be the ENR Index — Construction Costs, or if that index is discontinued, the Company shall use a comparable inflation index agreed upon by the parties . Such costs shall be charged to the City by written invoice no less than yearly and shall be paid by the City within 60 days of the receipt of said invoice. The Company shall provide the City with invoices and additional documentation to substantiate such charges. 8 . 3 . Enlargement of the Ditch. The Company shall have the right to enlarge the Ditch, or to contract with third parties for the enlargement of the Ditch, provided, however, that any such enlargement shall not adversely affect the rights of the Company shareholders, Contractees, and the City. For example, and not by means of limitation, if the ability of the Ditch to carry water were reduced for whatever reason and over whatever period of time, and if the Company were to increase the ability of the Ditch to carry water to an amount that the Ditch at one time historically carried water, such increased capacity would not be an enlargement of the Ditch, but would instead be maintenance and the restoration of existing Capacity in which Company shareholders, Contractees, and the City have rights . The City may not construct facilities on or in, or operate or modify the Ditch, its headgate, or any other reservoir, ditch, facility or other structure or property owned, controlled or operated by the Company, unless the written approval of the Company' s Board of Directors is obtained. Such approval may be withheld or denied in the sole and 8 absolute discretion of the Board. The Company, and not the City, shall operate the Ditch to effectuate City' s utilization of its Capacity permitted herein. ADDITIONAL TERMS 9 , 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 the Company: The Larimer County Canal No . 2 Irrigating Company c/o President If to the City: The City of Fort Collins c/o In the event a different person or entity than the person or entity listed above shall be given notice, the other party shall be notified of this change in writing pursuant to this paragraph. 10 . Covenant Running with Land. This Agreement, and all of its provisions, is binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns, and shall be a covenant running with the Waterworks Land. 11 , Recordation. This Agreement shall be recorded in the records of the Clerk and Recorder of Larimer County, Colorado . The cost of such recording shall be borne equally by the Company and the City. 12 , Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado, excluding conflicts of interest principles . 13 . Severability. If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby, and each provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. 14. Costs of Legal Proceedings . In the event any of the parties institute legal proceedings with respect to this Agreement or the enforcement thereof, or of any term and condition contained herein, the prevailing party shall be entitled to court costs and reasonable attorneys ' fees incurred by such party in connection with such legal provisions. 9 15 . Waiver. The failure of any Party to exercise any right or power given hereunder, or to insist upon strict compliance by the other Party with its obligations set forth herein and/or any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver of either Party' s rights to demand strict compliance with the terms and conditions of this Agreement. 16 , Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. [REMAINDER OF PAGE LEFT BLANK INTENTIONALLY] 10 THE CITY OF FORT COLLINS, a municipal corporation. By: Mayor ATTEST : City Clerk APPROVED AS TO FORM : Assistant City Attorney STATE OF COLORADO ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of , 20151 by , as Mayor of The City of Fort Collins, Colorado, a municipal corporation. WITNESS my hand and official seal. Notary Public My commission expires : 11 THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado nonprofit corporation By: President STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 120151 by , President of the Larimer County Canal No. 2 Irrigating Company, a Colorado nonprofit corporation. WITNESS my hand and official seal. Notary Public My commission expires : 12 9 Stantet Consulting Im _ .-- 2o9 South md& m street Fort Coffins CO 80521.2603 Tel: (970) 482-5922 Fax: (970) 482-6368 stambmcom a EXHIBIT I 5tanteC EXHIBIT A DESCRIPTION A parcel of land located in the Northwest Quarter of the Southeast Quarter of Section 32, Township 8 North, Range 69 West of the 6rh Principal Meridian, County of Larimer, State of Colorado, being more particularly described as follows: Considering the North line of said Southeast Quarter of Section 32 being monumented at the West end by a 3 " aluminum cap in a range box stamped LS 20123 dated 1989 and at the East end by a 3 " aluminum cap in a range box stamped LS 20123 dated 1989, as bearing, South 89 ° 10 ' 03 " East and with all bearings herein relative thereto. COMMENCING at the Center Quarter of said Section 32, Thence South 89° 10 '03" East a distance of 89.74 feet to the Point of Beginning of a 50 foot wide strip of land the centerline of which is described as follows : Thence South 02°18 ' 56" East a distance of 67.05 feet; Thence South 14°22 ' 37" East a distance of 99.47 feet; Thence South 03' 11 ' l 5" East a distance of 71 . 19 feet; Thence South 14°12 '27" East a distance of I62.73 feet; Thence South 26'05 ' 14" East a distance of 190. 58 feet; Thence South 33 ' 14 ' 09" East a distance of 261 . 13 feet; Thence South 22 °45 '21 " East a distance of 71 . 67 feet; Thence South 04°49 '34" East a distance of 102.37 feet; Thence South 04°09'28" East a distance of 84. 31 feet; Thence South 32°41 ' 54" East a distance of 15 .22 feet; Thence South 65 °55' 12 " East a distance of 33 .68 feet to the POINT OF TERMINUS, with sidelines prolonged or shortened to meet the Northerly property line of parcel described at reception number 0000780490 at the Larimer County Clerk and Recorder Office, and being parallel with the above described centerline. PAGE 1 OF 2 Stantec The above described tract contains 1 .36 acres, more or less, and is subject to all easern is of way of record or existing, o y : a 3 70 : o o� I� q��u sOW r " E A�S� 5 David L. nson Colorado Professional Land Surveyor Registrr:tion Number 36070 V:15287I flactive\1871100Mstuvey\exhibitTXHB-A -NORTHDITCH.doc jav/dls April 4, 2007 PAGE 2 OF 2 A REPRESENTATION OF EXHIBIT A A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 321 TOWNSHIP 8 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF LARIMER, STATE OF COLORADO E 1/4 CORNER SECnoN 32. TowNSHIP 8 NORTH, RANGE 89 WEST 2 FOUND 3' AC IN d�3 RANGE @OX Q macro LS 20123 DATED 1989 m C < y � m EXHIBIT A 1 ,36 ACRES +/.. i S 22'45521 " E 71 .67 h S 02'} 8'56" E S 1412'27" E 25' 50' 67.05' 162.73° POINT OF S 14'22'37" E BEGINNING 99.47 S 03'11 '15" E S 04'49034" E 71 ,19' 102.37' S 04'09tgB" E 84,31 POINT OF 5 3314'09" E S 65'561Y E TERMINUS 89610'03' E 261 ,130 33.68' 89.74' POINT OF COMMENCEMENT C 1/4 CORNER SEC. 32, TOWNSHIp 8 S 26405'14" E NORTH, RANGE 89 WEST 190.58' FOUND 3' AC IN RANGE BOX LS 20123 DATED 1989 amTcetr C2aV f�na6MGIi.1w.LM PROJ6T ffl�T ,a- 187110080 y lO0' 150' 200' ••• . Swanson F,AMMERC UfM ANALWATERNO. 2 0i.".woa'ur�ia'wmf T'l E10 i i i i i� V v°so." Ft safi wdan.n PROPF3try o...m .. ><�'�' °,.aine"c.an �i°" x52+-M 1 1i1 .ieirt1° J. Y1GL www cart a.. tmc ary.,.,a NORTH SEGMENT SHEETI llFl 90 >=I00 A-3-07 r.�d7ll�aca+\t97tt�.. .r\�.ry\t,mo!-rasa Vta/xm tote pr + 5tantec Conselfing Inc ^� 209 South Meldrum Street Fort Collins CO 60521-2603 Tel: (970) 482.3922 Fax: (970) 482-f368 starttet.com Stantec EXHIBIT B DESCRIPTION A tract of land located in the Northwest Quarter of the Southeast Quarter of Section 32, Township 8 North, Range 69 West of the 6th Principal Meridian, County of Larimer, State of Colorado, being more particularly described as follows : Considering the North line of said Southeast Quarter of Section 32 being monumented at the West end by a 3 " aluminum cap in a range box stamped LS 20123 dated 1989 and at the East end by a 3" aluminum cap in a range box stamped LS 20123 dated 1989 , as bearing South 89°10' 03 " East and with all bearings herein relative thereto. COMMENCING at the Center Quarter of said Section 32, Thence South 24005 '55" East a distance of 1177. 77 feet to the POINT OF BEGINNING; Thence South 70°56 '09" East a distance of 41 .48feet; Thence North 19"032S1 " East a distance of 10.03 feet; Thence South 70°56 '09" East a distance of 50. 53 feet; Thence South 24003 ' 18" West a distance of 36 .01 feet; Thence North 70°56' 09" West a distance of 47.61 feet; Thence North 19°03151 " East a distance of5,96 feet; Thence North 70°56 ' 09" West a distance of43 .00 feet; Thence North 24°04 ' 48 " East a distance of 19. 96 feet to the POINT OF BEGINNING. The above described tract contains 2,600 square feet, more or less, and is subject to all easeme ri is of way of record or existing. 6070 tto :D t��y•tiy r�d 7 Q' to S/ emu....+• °a L LAND David Ison Colorado Professional Land Surveyor Registration Number 36070 V:152871 flactive11871100801surveylexhibit\EXHB-A-NORTI-IDITCH.doc javldls April 4, 2007 A REPRESENTATION OF EXHIBIT B A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 32, TOWNSHIP 8 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF LARIMER, STATE OF COLORADO E 1 /4 CORNER SECTION Z POINT OF COMMENMENT 8 NORTH3RANGE 69IP C 1/4 CORNER SLQ 32, TO%NSHIP 8 (BASIS OF BEARING) VEST NORTH, RANGE 59 WEST S 8910003" E FOUND 3' AC N FOUND 3' AC IN RANGE BOX NORTH I1NE OF SE QUARTER RANGE BOX !S 20123 DATED 1969 SEC_ 32, TEN, R69W LS 20123 DATED 1989 S E91603" E 2660.55' S 24'05'55" E 1177.77' =t. :1 S 706560090 E POINT OF 19'03'51 " E BEGINNfN 'x 10. 03' N 24'04' 48" E leS 70*56 '09" E 19. 96' N 70'56'O9" W /, 50.53' EXHIBIT B 43 . 00' 2,600 S. F N 19'03651 " E S 24'03'18" W 5.96' 36.01 , N 70'56'09" W 47.61 ' «,� � mac' 187110080 100' 150' 200' W aaTarOLD WATER wcxacs e^ Ro ,mem .a ia.� 9. Sranson �M w w ■ ■ ■ ■� wl■Iw 2'm SauA Ms E +n PROPERTY aamc w 1acxCl ■ ■ ■ i ■ 1 av ae41 Tst97o"�)`is�� xm 2 o«IX � w�u �¢ J. VEIL FM -�,'r �^. B mc or w,.wc CENTER SEGMENT SHEET 1 OF rWmhh�.\ta7taoecw..AaerY\+seo,'-exa,o s/ielm� [�h-r w r StanWConsukinglnc '-- 209 South Meldrum Street Fort Collins CO 60521o2603 Tel: (970) 482.5922 fax: (970) 482-6360 stantec.corn Start , EXHIBIT C DESCRIPTION A parcel of land located in the Northwest Quarter of the Southeast Quarter of Section 32, Township 8 North, Range 69 West of the 6tti Principal Meridian, County of Larimer, State of Colorado, being more particularly described as follows : Considering the North line of said Southeast Quarter of Section 32 being monumented at the West end by a 3 " aluminum cap in a range box stamped LS 20123 dated 1989 and at the East end by a 3 " aluminum cap in a range box stamped LS 20123 dated 1989, as bearing South 89010 ' 03" East and with all bearings herein relative thereto . COMMENCING at the Center Quarter of said Section 32, Thence South 26"40 '47" East a distance of 1250.47 feet to the Paint of Beginning of a 50 foot wide strip of land the centerline of which is described as follows: South 65 °56 '42" East a distance of 17 .26 feet; Thence South 35°08 ' 14" East a distance of 171 .27 feet; Thence South 00°46' 24" West a distance of 53. 05 feet; Thence South 45 °37 ' 54" East a distance of 23 .89 feet to the POINT OF TERMINUS , with sidelines prolonged or shortened to meet the Southerly property line of parcel described at reception number 0000780490 at the Larimer County Clerk and Recorder Office, and being parallel with the above described centerline. The above describe ct con ains 0.305 acres, more or less, and is subject to all casemeMpof record or existing. -t; ro ; 9fi01a l0 � ' a 0 as 4sp;%ty 7,0040 ` Ito �LA�o SJ David L, Swanson Colorado Professional Land Surveyor Registration Number 36070 V:W87l 1lacti ve11 9711 00 8 01surveylexhibitTXHB-A-NORTHD ITCH.doc jav/dls April 4, 2007 A REPRESENTATION OF EXHIBIT C A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 32, TOWNSHIP 8 NORTH, RANGE 69 !'WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF LARIMER, STATE OF COLORADO POINT OF COMMENCEMENT C t/4 CORNER SEC_ 32, 7014N%IIP 8 S S9'19'O3a E 2660,55' NORTH, RANGE 69 WEST FOUND 3' AC IN RANGE BOX (BASIS OF BEARING) LS 20123 DATED t969 5 89'10'0y E E 1 /4 CORNER f NOM UNE Or SE QUARTER SECTION 34 TOMN5HIP i SEC. 34 TBN. MW 8 NORTH, RANGE 69 WEST Ii: nr, FOUND 3' AC W �, •_r RANGE BOX LS 20t23 DATED 1984 S 26040' 47" E E 1250. 471 ' Ity S 65'56'42" E 17.26' POINT OF BEGINNING S 35'O8'14' E 171 .27' EXHIBIT C�. 0.305 ACRES 25' S 00'46'24" W 53.05' S 45037054" E 23,89' POINT OF SOUTHERLY PROPERTY LINE PER RECEPTION NL'MSER 0000750490 TERMINUS '�aw.uan Gmm F7swQznspn= D t00' 750' 2D0' Qe" mom: �albJzcouNrYcaruLero. s18711dOS0 PROPERTY .4T>)lb WAT�2 VJOFdCS M D0 «0.� ' z/a Sa,n Co. DO PROP>=TiTY wuac w ti na, d T cent ca. m avm Fac(9 a aez� 3 " _ .im'�s 'Qi.,a w:um Y.gAC m. eua.rz F ael.,.,a<42 SpUTT1 SEGMENT civeY`°d'�„ne r100 q- A-07 SHEET I 9F ! r.\TsnA�..Vsnimo\.....,{e.r..\taoaH-rza.y </,a/mn +aru w