HomeMy WebLinkAboutWESTBURY PUD, FIRST FILING - FINAL - 11-94A - LEGAL DOCS -WHEREAS, Gress purchased Parcel 1 from 1480 Welton, Inc. and
Parcel 1 receives the Irrigation Water via a ditch that flows
from the west to the east by southeast across the north portion
of the Subdivision ("Active Ditch");
WHEREAS, Gress purchased Parcel 2 from the Allan Edmun
Kilminster Estate and Parcel 2 received its irrigation water via
another ditch located south of the Active Ditch, this ditch no
longer being in service ("Inactive Ditch");
WHEREAS, Westbury desires to locate an underground pipe in
Tracts A,and B and along the utility easement at the rear of Lots
15 and 16 of the Subdivision to carry the Irrigation Water to the
Gress Property; and
WHEREAS, in consideration of the new underground pipe to
carry the Irrigation Water, Gress agrees to abandon, vacate, and
release the Active Ditch and the Inactive Ditch easements.
NOW, THEREFORE, in consideration of their mutual promises
herein contained, the parties agree as follows:
.1. Preamble. The parties agree that the preamble
hereinabove set forth shall be, and the same hereby is,
incorporated into and made a part of this Agreement by reference.
2. Grant of Easement. Upon recording of the Subdivision
plat, Westbury shall execute and deliver to Gress the Grant of
Easement, Exhibit "A" attached hereto.
3. Vacation of Easements. Upon the execution and delivery
of the Grant of Easement, Gress shall execute and deliver to
Westbury the Vacation of Easements, Exhibit "B" attached hereto
which shall abandon, vacate, and release any and all rights to
the Active Ditch and the Inactive Ditch, and shall quit claim any
interest therein to Westbury.
4. Construction of Irrigation Pipe. Following the 1994
irrigation season and prior to the commencement of the 1995
irrigation season, Westbury agrees, at its sole cost and expense,
to design and construct an underground irrigation pipe to carry
the Irrigation Water across the Subdivision to the Gress
Property. The location and construction of the irrigation pipe
is more fully agreed to as. follows:
A. The pipe shall be an ADS or equivalent pipe 12
inches in diameter, or such other size and type as recommended by
Ed Wendel of the Pleasant Valley and Lake Canal Company, to carry
the Irrigation Water.
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EXHIBIT "A"
WESTBURY P.U.D. FIRST FILING
LEGAL DESCRIPTION
Tract "A": A tract of land situate in the Northeast a of Section 3, Township'
6 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado, which considering the North line of the said Northeast a
as bearing S 89* 00' W and with all bearings contained herein relative thereto
is contained within.the boundary lines which begin at a point on the said North
line which bears S 89° 00' W 500.00 feet from the Northeast corner of said
Section 3 and'run thence S 89° 00' W' 540.00 feet along the said North line;
thence S 00* 41' E 544.50 feet; thence S 89° 00' W.68.11 feet; thence S 42'
47' 47" E 237.54 feet; thence N 63° 06' 51" E 237.52 feet; thence N 72' 27'
56" E 74.70 feet; thence along the arc of a 213.00 foot radius curve to the
right a distance of 9.23 feet, the long chord of which bears S O1° 55'
30" E 9.23 feet; thence N 89° 19' E 54.00 feet; thence along the arc of a 267.00
foot radius curve to the left a distance of 29.21 feet, the long chord of which
bears N 03° 49' 01" W 29.19 feet, thence N 89° 00' E 111.60 feet; thence
N 00* 41' W 577.00 feet to the point of beginning, excepting tlierefrcm the
following
A ten foot wide irrigation easement situate in the Northeast 1/4 of Section 3, Township 6
North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer, State of
Colorado, which considering the North line of the said Northeast 1/4 as bearing S 89*00' W
and with all bearings contained herein relative thereto, the centerline of which begins at a
point which bears S 89*00' W 1040.00 feet and again S 00*41' E 75.00 feet from the
Northeast corner of said Section 3 and runs thence N 89*00' E 535.00 feet; thence S 00*41'
E 175.00 feet to the end of said easement.
EXHIBIT "B"
QUIT CLAIM DEED AND RELEASE '
THIS DEED AND RELEASE made this 2/ day of July, 1994,
between A.O. GRESS & CO., a general partnership, of the county of
Larimer, state of Colorado, of the first part, and WESTBURY LLC,
a Colorado limited liability company, whose address is 3500 JFK
Parkway, Suite 221, Fort Collins, Colorado 80525, county of
Larimer, of the second part:
WITNESSETH, that the said party of the first part, for and
in consideration of Ten Dollars ($10) and other good and valuable
consideration, to the said party of the first part in hand paid
by the said party of the second part, the receipt whereof is
hereby confessed and acknowledged, has remised, released, sold,
and QUIT CLAIMED and by these presents does remise, release,
sell, and QUIT CLAIM unto the party of the second part, it
successors and assigns, forever, all of the right, title,
interest, claim, and demand which the party of the first part 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:
See Exhibit "A" attached hereto and incorporated herein
by reference.
No number or street address have been assigned.
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 the party of the first part,
either in law or equity, to the only proper use, benefit, and
behoof of the party of the second part, its successors and
assigns forever.
BE IT FURTHER RESOLVED that the party of the first part by
these presents and for its successors and assigns forever
releases and abandons any and all interest in and to those
certain existing irrigation ditches presently located on the
above -described property.
IN WITNESS WHEREOF the party of the first part has executed
this Quit Claim Deed and Release on the date set forth above.
A.O. GRESS & CO., a general
partnership
By (% 4�
Alice 0. Gress, general partner
STATE OF COLORADO )
) ss.
County of Larimer )
The foregoing instrument was acknowledged and sworn to
before me this c2l day of July, 1994, by Alice O. Gress, general
partner of A.O. Gress & Co., a general partnership.
Notary Public
My commission expires: 8 S-9S
STATE OF COLORADO )
) SS.
County of Larimer )
Orl this aday of , land, before me
, a Not ry Public in and for said
state, personally appeared, Mark A. Linder, manager of Westbury
LLC, a Colorado limited liability company, known to me to be the
person who executed the foregoing document and acknowledged to me
that he executed the same for the purposes therein stated.
STATE OF COLORADO
SS.
County of Larimer )
Notary Public
My commission expires: 8-S-9S'
day of , 1994, before me
a No ary Public in and for said
state, personally appeared, Alice O. Gress, general partner of
A.O. Gress & Co., a general partnership, known to me to be the
person who executed the foregoing document and acknowledged to me
that she executed the same for the purposes therein stated.
Notary Public
My commission expires: 8-S--9S
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3. Grant of Easement. Subservient Owner, for itself, its
successors and assigns, by these presents does hereby grant,
bargain, sell, and convey to the Beneficial Owner, and for the
use, benefit, and appurtenance of the Beneficial Land, a
nonexclusive easement over, across, and under the Subservient
Land for the construction, maintenance, repair, and replacement
of an underground pipe to carry irrigation water from the west
boundary of the Subservient Land to the east boundary of the
Subservient Land where said irrigation water is discharged onto
the Beneficial Land.
4. Construction and Maintenance. The irrigation pipe to
be constructed in the Subservient'Land, paragraph 3 above, shall
be designed, constructed, and maintained in a good and
workmanlike manner by the Subservient Owner, or by Westbury
Homeowners Association when formed and such duties accepted by
the association. The irrigation pipe shall be maintained so as
to reasonably carry the water delivered by 6/15 (0.4) share of
the capital stock of Pleasant Valley and Lake Canal Company, or
its successor, across the Subservient Land to the Beneficial Land
for irrigation, unpolluted in quality and undiminished in
quantity.
5. AARpurtenance of this Grant of Easement. The parties
hereby agree that this GRANT OF EASEMENT is appurtenant to the
Beneficial Land and that a conveyance of the Beneficial Land, or
any part thereof, shall convey all right, title, and interest in
and to this Grant of Easement and the benefits and burdens
appurtenant thereto.
6. Enforcement. This Agreement may be enforced in law or
in equity.
7. Bindincr Effect. This Agreement shall be binding upon
the parties hereto, their successors and assigns. This Agreement
shall be a benefit, burden, and appurtenance to the properties
described herein. The owner of the Subservient Land, except the
dedicated street known as Westbury Drive, shall be burdened by
the obligation to repair, maintain, and replace the irrigation
pipe in a good and workmanlike manner and in such manner as to
assure that the pipe reasonably carries the irrigation water as
provided in paragraph 4 above.
This Grant of Easement is made and entered into in Fort
Collins, Colorado, this ZI day of 1994.
WESTBURY LLC, a Colorado
limited liability company
A.O. GRESS & CO., a general
partnership
By 'G'2 By
Mark A. Linder, Manager Alice O. Gress, general
partner
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EXHIBIT "A"
GRANT OF EASEMENT
BENEFICIAL OWNER: A.O. GRESS & CO., a general partnership
SUBSERVIENT OWNER: WESTBURY LLC, a Colorado limited
liability company
FOR TEN DOLLARS ($10) and other good and valuable
consideration, the receipt and adequacy of which is hereby
confessed and acknowledged, the parties agree as follows:
1. Beneficial Land. Beneficial Owner is the owner.of the
following described land situate in the county of Larimer, state
of Colorado, to wit:
Parcel 1: Beginning at the Northeast corner of Section
3, Township 6 North, Range 69 West of the 6th
P.M.; thence West, along the North line of
said section, 500 feet; thence South 500
feet; thence East 500 feet to the East line
of said section; and thence North along the
East line of said section 500 feet to the
point of beginning.
Parcel 2: Beginning at a point on the East line of
Section 3, Township 6 North, Range 69 West of
the 6th P.M., 500 feet South of the Northeast
corner of said section; thence South 890 West
500 feet; thence South 125 feet; thence North
890 East 500 feet; and thence North 125 feet
to the point of beginning.
("Beneficial Land").
2. Subservient Land. Subservient Owner is the owner of
the following described land situate in the county of Larimer,
state of Colorado, to wit:
A ten foot wide irrigation easement situate in the
Northeast 1/4 of Section 3, Township 6 North, Range 69
West of the 6th P.M., City of Fort Collins, County of
Larimer, State of Colorado, which considering the North
line of the said Northeast 1/4 as bearing S 89000' W
and with all bearings contained herein relative
thereto, the centerline of which begins at a point
which bears S 89*00' W 1040.00 feet and again S 00041'
E 75.00 feet from the Northeast corner of said Section
3 and runs thence N 890001 E 535.00 feet; thence S
00041' E 175.00 feet to the end of said easement.
("Subservient Land").
WESTBURY P.U.D. FIRST FILING
LEGAL DESCRIPTION.
Tract "A": A tract of land situate in the Northeast a of Section 3, Township'
6 North, Range 69 West of the 6th P.M., City of Fort Collins, County of Larimer,
State of Colorado, which considering the North line of the said Northeast 'a
as bearing S 89° 00' W and with all bearings contained herein relative thereto
is contained within -the boundary lines which begin -at a point on the said North
line which bears S 89' 00' W 500.00 feet from the Northeast corner of said
Section 3 and run thence S 899 00' W'540.00 feet along the said North line;
thence S 00° 41' E 544.50 feet; thence S 89° 00' W•68.11 feet; thence S 42°
47' 47" E 237.54 feet;'thence N 63° 06' 51" E 237.52 feet; thence N 72' 27'
56" E 74.70 feet; thence along the arc of a 213.00 foot radius curve to the
right a distance of 9.23 feet, the long chord of which bears S 01° 55'
30" E 9,23 feet; thence N 89° 19' E 54.00 feet; thence along the arc of a 267.00
foot radius curve to the left a distance of 29.21 feet, the long chord of which
bears N 03' 49' 01". W 29.19 feet, thence N 89' 00' E 111.60 feet; thence
N 00' 41' W 577.00 feet to the point of beginning,
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement in Fort Collins, Colorado, the day and year first above
written.
WESTBURY:
WESTBURY LLC, a Colorado limited
liability company n
By G G'(C�. zd�-�
Mark A. Linder, Manager
GRESS:
A.O. GRESS & CO., a general
partnership
By c&cf_ o_ J. -
Alice O. Gress, general partner
STATE OF COLORADO )
) SS.
County of Larimer )
On this 914 day of , 1994, before me
a Notafy Public in and for said
state,, personally appeared, Mark A. Linder, manager of Westbury
LLC, a Colorado limited liability company, known to me to be the
person who executed the foregoing document and acknowledged to me
that he executed the same for the purposes therein stated.
STATE OF COLORADO
SS.
County of Larimer
Notary Public
My commission expires: 8'S=gS
n this o?/ day of , 1994, before me
a No ary Public in and for said
state, personally appeared, Alice 0. Gress, general partner of
A.O. Gress & Co., a general partnership, known to me to be the
person who executed the foregoing document and acknowledged to me
that she executed the same for the purposes therein stated.
Notary Public
My commission expires: 2'5=9S'
and maintenance of the pipe. Furthermore, the cost of recording
the easement and the vacation of easements shall be at Westbury's
expense.
8. Binding Effect. The terms and conditions of this
Agreement shall benefit and burden, the respective parcels
described herein, and shall be deemed to run with the land. This
Agreement shall inure to the benefit of, and shall bind the
parties hereto, and their respective successors and assigns.
This Agreement may be enforced at law or in equity.
9. Notice. Any notice or tender required or permitted by
this Agreement shall be in writing and shall be delivered in
person, sent by certified mail, or sent by overnight courier. If
such notice is hand delivered, personally served, or delivered by
overnight courier, it shall be effective immediately upon such
delivery of service. If sent by mail, it shall be sent by
certified mail, return receipt requested, and shall be effective
three (3) days after deposit of the same into a United States
mail depository with sufficient postage attached for delivery to
the parties at their following addresses:
Westbury LLC
c/o Mark Linder
3500 JFK Parkway, Suite 221
Fort Collins, CO 80525
A.O. Gress & Co.
c/o Alice Gress
1109 West Harmony Road
Fort Collins, CO 80526
Change of address shall be treated as any other notice.
10. Time of the Essence. The parties agree that time shall
be of the essence of this Agreement.
11. Attorneys Fees Upon Default. In any litigation
brought to enforce this Agreement, the prevailing party shall be
entitled to judgment against the nonprevailing party for all
reasonable expenses of such litigation, including, but not
limited to, court costs; deposition and other discovery expenses;
expert witness fees; witness fees; reasonable attorney's fees;
and such other expenses related to the litigation as the court
may award.
12. Colorado Law. This Agreement shall be interpreted and
enforced in accordance with the laws of the state of Colorado.
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B. The actual sizing and design of the pipe shall be
designed and sized in consultation with Ed Wendel of the Pleasant
Valley and Lake Canal Company. The plans and specifications for
the construction of the pipe shall be reviewed and approved by
the City Engineering Department of the City of Fort Collins.
Among other things, the design shall include underground
construction, adequate size to carry the Irrigation Water, a
trash grill or gate across the lateral where it enters the pipe
at the west boundary of the Subdivision, and clean out points at
reasonable intervals on�the pipe.
C. The pipe shall replace the Active Ditch at the
point the Active Ditch enters Tract A of the Subdivision, and
will exit the Subdivision at a point on Lot 15 of the Subdivision
where the Active Ditch presently enters Parcel 1 of the Gress
Property.
D. The pipe shall be constructed in the easement,
Exhibit "A".
5. Maintenance and Repair. Until such time as Westbury
Homeowners Association is incorporated and assumes the
responsibility, Westbury shall be responsible for any maintenance
or damage from leaking or seepage of the pipe and will maintain
the pipe in such a way as to assure its unobstructed and
continuous flow. Upon incorporation of Westbury Homeowners
Association and its assumption of the responsibility of
maintenance of the pipe, Westbury shall be released of such
obligation and the association shall assume and be fully
responsible for such maintenance so long as Gress or Gress'
predecessors in interest of the Gress Property receive Irrigation
Water through the pipe.
6. Recording of Easement and Vacation of Easements. The
parties agree that upon the recording of the plat for Westbury
P.U.D. First Filing the easement, Exhibit "A", shall be recorded
and shall become, as stated therein, a permanent easement for the
use and benefit, and appurtenant to, the Gress Property. At the
time of recording of the easement, Exhibit "A", the vacation of
the existing easements, Exhibit "B", shall also be recorded.
7. Costs. Westbury covenants and agrees.that it shall pay
all costs and expense relating to the preparation of the
easement, Exhibit "A", the vacation of easements, Exhibit "B",
design and approval of the irrigation pipe, construction of the
irrigation pipe, and repair and maintenance of the irrigation
pipe, until such time as Westbury Homeowners Association accepts
the responsibility for repairs and maintenance. Gress shall not
be responsible for any costs of design, construction, repairs,
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(RELOCATION OF IRRIGATION DITCH)
THIS AGREEMENT is made and entered into this Z / day of
July, 1994, by and between WESTBURY LLC, a Colorado limited
liability company ("Westbury"), and A.O. GRESS & CO., a general
partnership ("Gress").
WITNESSETH:
WHEREAS, Gress is the owner of the following described
property situate in the county of Larimer, state of Colorado, to
wit:
Parcel 1: Beginning at the Northeast corner of Section
3, Township 6 North, Range 69 West of the 6th
P.M.; thence West, along the North -line of
said section, 500 feet; thence South 500
feet; thence East 500 feet to the East line
of said section; and thence North along the
East line of said section 500 feet to the
point of beginning.
Parcel 2: Beginning at a point on the East line of
Section 3, Township 6 North, Range 69 West of
the,6th P.M., 500 feet South of the Northeast
corner of said section; thence South 890 West
500 feet; thence South 125 feet; thence North
890 East 500 feet; and thence North 125 feet
to the point of beginning.
("Gress Property");
WHEREAS, Gress owns 6/15 (0.4) share of the capital stock of
the Pleasant Valley and Lake Canal Company ("Irrigation Water");
WHEREAS, Westbury is the owner of the following described
property situate in the county of Larimer, state of Colorado, to
wit:
See legal description of WESTBURY P.U.D. FIRST FILING
attached hereto and incorporated herein by reference.
("Westbury Property");
WHEREAS, Westbury desires to subdivide the Property into
residential lots, the subdivision to be known as WESTBURY P.U.D.
FIRST FILING ("Subdivision");