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HomeMy WebLinkAboutHARMONY RIDGE PUD, PHASE ONE - PRELIMINARY - 49-95A - LEGAL DOCS - LETTER OF INTENTpersonal injury or property damage caused by or resulting from the failure of ,the Developer to perform its obligations under, this Agreement. ' 22. The parties hereto agree to cooperate and to act in good faith in the performance of their respective obligations hereunder. Any consent or approval required to be given by either party under the terms of this Agreement shall not be unreasonably withheld. 23. Upon execution of this Agreement by both, parties, the Agreement shall be recorded in the office of the Clerk and Recorder of Larimer County, Colorado. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. TRILBY LATERAL DITCH COMPANY, a Colorado corporation ATTEST: (seal) BY: BY: Secretary President I -VAR STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this day of , 199_1 by as Secretary and as President of TRILBY LATERAL DITCH COMPANY, a Colorado corporation. Witness my hand and official seal. My commission expires: Notary Public 5 STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was subscribed, acknowledged before me this day of 1991 by as of POSITIVE ENVIRONMENTS, INC., a Colorado corpora Witness my hand and official seal. My commission expires: Notary Public 2 sworn to, and I on. are reasonably necessary •to maintain the integrity and carrying capacity of the Trilby Lateral. 17. The Developer shall not deposit, or permit or allow to be deposited, in the Trilby Lateral any storm water runoff resulting from the development of the Property. The Developer shall provide to the Ditch Company a copy of the Developer's drainage plans for the Property, which shall be subject to review and approval by the Ditch Company and its engineer. 18. The Developer shall reimburse the Ditch Company for all reasonable costs and expenses, including attorneys and engineering fees, incurred by the Ditch Company in connection with its review of the Plat, the drainage plan, or any other plans for development of the Property and the negotiation and preparation of this Agreement. 19. This Agreement shall run with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and to the extent permitted, assigns. The rights and obligations of the Developer under this Agreement may not be assigned without the written consent of the Ditch Company and only to a financially responsible person or entity who purchases all or substantially all of the Developer's interest in the Property and such person or entity assumes in writing all obligations of .the Developer under this Agreement; or to a homeowners association, the members of which shall be the owners of all lots within the -Property, and such homeowners association assumes in writing the obligations of the Developer under this Agreement, and has the authority to assess lot owners for the costs and expenses incurred by the homeowners association in performing its obligations under this Agreement and the authority to assert a lien against any lot for any unpaid assessments. Upon assignment of this Agreement by the Developer to a person or entity satisfying the requirements of this paragraph 18 and upon the written consent of the Ditch Company to such assign- ment, the Developer shall be released from further liability for performance of the terms of this Agreement subsequent to the date of such assignment. 20. In the event of default by either party in the perfor- mance of its obligations under this Agreement, the nondefaulting party shall have the right to recover all costs and expenses, including reasonable attorneys fees, incurred in enforcing this Agreement. 21. The Developer shall indemnify and hold harmless the Ditch .Company, its officers, directors, shareholders, agents, and employees, from and against any and all loss, cost, and expense, including reasonable attorney's fees, arising out of, as a result of, or in connection with any claim made against the Ditch Company, its officers, directors, shareholders, agents, or employees, for 4 method of installing any utility lines within the Easement shall be approved in writing in advance by the Ditch Company. 13. The Developer shall be responsible for the repair of any damage done to the Trilby Lateral, except ordinary wear and tear, by any person or entity other than the Ditch Company, its members, agents, and employees. In the event the Developer fails to repair any damage done to the Trilby Lateral within ten (10) days after written notice thereof, from the Ditch Company, then the Ditch' Company shall have the right to perform such repairs and shall be entitled to reimbursement from the Developer for all costs and expenses incurred in making such repairs. The Ditch Company shall be responsible for the removal of silt from the Trilby Lateral and for the ordinary maintenance and care of the Trilby Lateral, including the repair of damage caused by ordinary.wear and tear. 14. The Developer shall obtain and maintain in full force and effect a policy of public liability and property damage insurance with a company reasonably acceptable to the Ditch Company in an amount of Two Million Dollars ($2,000,000) insuring the Ditch Company, its officers, directors, shareholders, and employees, against all claims for bodily injury or property damage resulting from the operation of the Trilby Lateral within the Property. Such policy and proof of payment of all premiums shall be delivered to the Ditch Company not less than thirty (30) days prior to the expiration of the previous policy or prior to any construction work being performed on the Property. The amount of such insurance shall be increased periodically to provide coverage comparable to the coverage provided by a Two Million Dollar ($2,000,000) policy at the time of the execution of this Agreement. In the event.the Developer fails to provide such insurance, the Ditch Company may purchase. the insurance and shall be entitled to reimbursement from the Developer for the cost thereof. 15. The Developer shall act in good faith and use all reasonable efforts to keep persons out of the Trilby Lateral. In the event the Ditch Company reasonably determines that the Developer is unable to prevent individuals from entering the Trilby Lateral and in the event the Ditch Company reasonably determines that such persons are causing damage to the Trilby Lateral or are creating a serious risk of injury to themselves or others, the Ditch Company may require the Developer to pay the cost of constructing a fence along the Easement of a size and type sufficient to deter persons from entering the Trilby Lateral. 16. Development of the Property shall not cause any adverse impact on the integrity or carrying capacity of the Trilby Lateral. If the Ditch Company reasonably determines that development of the Property,is having an adverse impact on the integrity or carrying capacity'of the Trilby Lateral, then the Ditch Company may require that the Developer make such improvements to the Trilby Lateral as 3 AGREEMENT (Harmony Ridge P.U.D.) THIS AGREEMENT is made and entered into this day of , 199 ,.by and between TRILBY LATERAL DITCH COMPANY, a Colorado corporation ("the Ditch Company"), and POSITIVE ENVIRONMENTS, INC., a Colorado -corporation ("the Developer"). WITNESSETH: WHEREAS-, the Developer is the owner of the real property described on Exhibit "A" attached hereto and incorporated herein by reference ("the Property"). WHEREAS, the Property has been platted as Harmony Ridge P.U.D. ("the Plat"). WHEREAS, the Ditch Company owns an irrigation lateral which runs along the southerly -most boundary of the Property and is shown on the Plat ("the Trilby Lateral"). WHEREAS, the Developer has requested that the Ditch Company consent to the Plat. The Ditch Company is willing to consent to the Plat on the terms and conditions set forth in this Agreement. '_NOW, THEREFORE, for and in consideration of the promises and covenants herein contained and other good and valuable consider- ation, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree as follows: 1. The Developer grants, bargains, sells, and conveys to the Ditch Company a nonexclusive, perpetual easement thirty (30) feet in.width over and across the southerly -most thirty (30) feet of the Property ("the Easement"). The Easement is specifically described and designated on the Plat. 2. The Developer grants, bargains, sells, and conveys to the Ditch Company.a nonexclusive, perpetual easement and right-of=way over; across, and upon any and all- private- streets and common areas within the Property as designated on the Plat as necessary to obtain access to the Easement and the Trilby Lateral. 3. The Developer represents and warrants to the Ditch Company that the Developer has good right, full power, and lawful authority to enter into this Agreement and that the Developer is the owner of the Property upon which the Easement is hereby granted free and clear of all liens and encumbrances. 4. The Developer grants to the Ditch Company the right of ingress to and egress from the Easement over and across the Property by means of any existing roads or lanes thereon. 5. The Ditch Company shall have the right, from time to time, to enlarge, improve, reconstruct, relocate, and replace the Trilby Lateral, either in its present location or at any alternate location within the Easement. 6. The Developer shall not erect or construct any building or other structure, within the Easement or drill or operate any well or construct any reservoir, dam, or other obstruction within the Easement or otherwise add to the ground level within the Easement without the prior written consent of the Ditch Company. The Developer.shall not construct any bridge or other crossing of the Trilby Lateral without the prior written consent of the Ditch Company. 7. The Developer shall not deposit, or permit or allow to be deposited, on the Easement or within the Trilby Lateral any rubbish, debris, trash, garbage, dead animals, lawn clippings, or any other substance or material ("Debris"). The Developer shall remove all Debris from the Easement and the Trilby Lateral. If the Developer fails to remove Debris from the Easement or the Trilby Lateral within ten (10) days after written notice from the Ditch Company, then the Ditch Company shall have the right to remove the Debris and shall be entitled to reimbursement from the Developer for all costs and expenses incurred in removing Debris from the Easement and the Trilby Lateral. 8. The Developer shall not deposit, or permit or allow to be deposited, in the Trilby Lateral any commercial fertilizers, herbicides, or pesticides. 9. The Developer shall not permit any trees or shrubs to grow within the Easement. Vegetation within the Easement shall be limited to grasses or other plants not to exceed twelve (12) inches in height. The Developer shall be responsible for mowing or otherwise maintaining the height of such grasses. In the event the Developer fails to mow the grass or other plants within the Easement within ten (10) days after written notice thereof from the Ditch Company, then the Ditch Company shall have the right to mow the Easement and shall be entitled to reimbursement from the Developer for all costs and expenses incurred in such mowing. 10. No pumps shall be installed within the Trilby Lateral. 11. The Developer shall not interfere with the flow of water in the Trilby Lateral between April 1 and November 1 of each year. 12. All utility lines, including water, sewer, gas, electric, telephone, and television lines, shall be located under the Trilby Lateral at all points at which such lines cross the Easement. The construction and installation of any utility lines within the Easement shall not interfere with the flow of water in the Trilby Lateral. The banks of the Trilby Lateral shall not be disturbed during construction and installation of such utility lines. The 2 r WYATT AND MARTELL LLc ATTORNEYS AT LAW BILL WYATT 222 WEST MAGNOLIA STREET JAMES A. MARTELL L. ALLEN WEAVER FORT COLLINS, COLORADO S0521-2899 January 8, 1996 Mr. Joe VanSant Positive Environments, Inc. P.O. Box 98 Fort Collins, CO 80522 Dear Mr. VanSant: TELEPHONE (970) 484-1112 FAX (970) 484-1170 I represent the Trilby Lateral Ditch Company. On behalf of the ditch company, I have prepared the initial draft of an Agreement to be entered into between the ditch company and Positive Environments, Inc., as developer of Harmony Ridge P.U.D. Enclosed please find the initial draft of the Agreement which I have prepared. After you have had an opportunity to review the proposed Agreement, please call me to discuss any questions which you may have. Before the appropriate officers of the ditch company sign the plat for Harmony Ridge P.U.D., it will be necessary that the enclosed Agreement be signed and the plat and drainage plan be reviewed by the ditch company's engineers. Please provide a copy of the final plat and drainage plan to Jim Robbins, along with a signed copy of the enclosed Agreement. Mr. Robbins' address and phone number are as follows: 5801 South Shields Street, Fort Collins, CO 80526; 226-3312. Sincerely, dkl�l ar,--e� James A. Martell JAM:sc