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HomeMy WebLinkAboutFORT COLLINS NISSAN-KIA - PDP210017 - SUBMITTAL DOCUMENTS - ROUND 3 - LEGAL DOCUMENTS('{ t & 6 ~V\. ~ I/ e., \o ~ ~ 11\ ·t- f J. ft (C:.<?;.0,66 ~,) ~~"i'-~I AGREEMENT TO NEGOTIATE TI-llS AGREEMENT TO NEGOTIATE ("Agreement") is entered into effective as of De- c:embe~· 13, 2021 ("Effective Date"), by and between The North Loudon Ditch And Reservoir Company a Colorado mutual irrigation company, ("Ditch Company"), and.WWW PROPER- TIES, LLC, a Colo1:ado limited liabiUty comt,any ("Applicant"), BACKGROUND: A. The Ditch Company owns and operates an irrigation water delivery system to its stock- holders. B. Applicant desires the Ditch Company to consider a proposal from the Applicant to relo- cate the ditch and encapsulate the ditch into an nndergrmrnd pipe for the purposes of development of Applicant's Prnper1;y ("Development of Land"). C. Applicant desires to negotiate with Ditch Company for the Development of Land on the Property of the Applicant ("Property"). D. The Ditch Company wishes to negotiate with Applicant about Development of Land. NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, AND IN CONSIDERATION OF TI-IE BACKGROUND, DITCH COMPANY AND APPLICANT HEREBY AGREE AS FOLLOWS: AGREEMENT 1. TERM OF AGREEMENT. The term of this Agreement ("Negotiation Period") shall commence on the Effective Date and terminate on the earlier of (1) the parties' approval and execu- tion of an acceptable agreement ["Development Agreement"], or (2) six months after the Effective Date of this Agreement, or (3) termination of this Agreement in accordance with Section 6 hereof. Notwithstanding the foregoing, the Ditch Company, in the Ditch Company's sole discretion, may extend the Negotiation Period for up to an additional three months. 2. DEFINITION OF THE PROPOSED DEVELOPMENT OF LAND. Ditch Company and Applicant contemplate that the proposed Development Agreement would address those por- tions of the Property on which the ditch system of the Ditch Company to be developed by Appli- cant for the Development of Land will encompass the Property more specifically described and de- picted in the legal description and map attached hereto as Exhibit "A" and incorporated herein by reference. 3. REIMBURSEMENT OF COSTS. Applicant shall reimburse Ditch Company for Ditch Company's actual and reasonable out-of-pocket expenses, including all costs of Ditch Company's board of directors, engineering consultants and attorneys' fees incur.red in connection with the nego- tiation and preparation of this Agreement and the proposed Development (collectively, "Ditch Company Expenses"). Applicant shall be obligated to pay Ditch Company Expenses pursuant to this Section 3, regardless of whether the parties enter the proposed Development Agreement as con- templated by this Agreement. The parties estimate that the Ditch Company Expenses will not ex- ceed $20,000.00 ("Expenses Cap"). The parties acknowledge and agree that Ditch Company has in- curred an estimated $1,000.00 in Ditch Company Expenses prior to the Effective Date. Therefore, Page 1 of 7 , concurrently with its execution of this Agreement, Applicant shall submit to Ditch Company $1,000.00 ("Initial Reimbursement") in the form of a negotiable instrument or other immediately available funds to be used by Ditch Company to pay Ditch Company Expenses incurred prior to the Effective Date. Ditch Company shall use any unexpended or uncommitted portion of the Initial Re- imbursement, if any, to satisfy additional Ditch Company Expenses incurred by Ditch Company during the term of this Agreement. Applicant shall remain obligated to reimburse Ditch Company for Ditch Company Expenses incurred which are not satisfied by the Initial Reimbursement funds. Following the Effective Date, Ditch Company shall transmit to Applicant, not more frequently than monthly, a copy of each invoice, bill, or other evidence that Ditch Company has incurred Ditch Company Expenses. Applicant shall pay the Ditch Company Expenses to Ditch Company in foll within ten days after receipt of each invoice, bill, or other evidence of such Ditch Company Expens- es. If Applicant does not pay the Ditcl1 Company Expenses to Ditch Company within such ten-day period, then Ditch Company may send a second notice and demand for payment. Applicant's failure to pay such Ditch Company Expenses, in full, within five days following such second notice shall be deemed a default by Applicant hereunder and Ditch Company may immediately terminate the Agreement without further notice or opportunity to cure. Ditch Company agrees that Applicant's obligation to reimburse Ditch Company shall not exceed the Expenses Cap without Applicant's written approval. In the event Ditch Company determines that, to carry out its obligations under this Agreement, the Ditch Company Expenses will exceed the Expenses Cap, Ditch Company shall re- quest Applicant's written approval of such increase. If Applicant fails to provide such written ap- proval within ten business days following Ditch Company's request, this Agreement may be termi- nated by Ditch Company in Ditch Company's sole ·discretion. If Ditch Company terminates this Agreement as provided in this paragraph, neither party shall have any further rights against or liabil- ity to the other under this .Agreement, except that Applicant shall reimburse Ditch Company for Ditch Company Expenses incurred within the Expenses Cap prior to the effective date of termina- tion and Applicant shall remain obligated to indemnify Ditch Company as provided in Section 9 hereof. 4. NEGOTIATIONS FOR THE DEVELOPMENT AGREEMENT. During the Negotia- tion Period, Ditch Company and Applicant agree to negotiate with each other the terms and condi- tions of the proposed Development Agreement. 5. AGREEMENT TERMS. Ditch Company and Applicant contemplate that the proposed Development Agreement may include, among other terms, the following: a. Easement/ ownership area for ditch. b. Capital payment. c. Additional Payment. cl. Maximum time for construction. e. No work period. f. Release of liability, insurance, and indemnity. g. Surface protection provisions and damage payments. h. Drainage into and out of the ditch. i. Crossings of the ditch / relocation of the ditch. 6. TERMINATION. In addition to Ditch Company's right to terminate this Agreement pmsuant to Section 3, either Ditch Company or Applicant, may, upon the failure of the other to dil- igently and in good faith meet its obligations herein, terminate this .Agreement on thirty days written notice to the non-tc,:minating party which states the terminating party's reason for its intention to Page 2 of7 terminate. If, during such thirty-day period, the non-terminating party has failed to cure such failure in its performance, this Agreement shall terminate. Except as otherwise provided herein following such termination, neither party shall have any further rights or liability under this Agreement. 7. LIMITATIONS. a. By its execution of this Agreement, Ditch Company is not committing itself to or agreeing to commit itself to enter into the proposed Development Agreement or any similar document or to take any other actions requiring the subsequent independent exercise of discretion by the Ditch Company. This Agreement does not constitute a disposition or other transfer of the Property or any interest in the Property by the Ditch Company. Execution of this Agreement by Ditch Company is merely an agreement to enter a period of negotiations according to the terms and conditions hereof, rese1ving final discretion and approval by the Ditch Company as to any agreement and all proceed- ings and decisions in connection therewith. b. By its execution of this Agreement, Applicant does not commit itself to enter the Devel- opment Agreement or any other agreement. 8. NO RIGHT OF ACCESS. A.pplicant shall not have access to the Ditch or Ditch Compa- ny facilities under the terms of this Agreement. 9. INDEMNIFICATION. Applicant shall indemnify, defend, and hold the Ditch Company, and Ditch Company's employees, officers, agents, representatives, trustees, volunteers and officials harmless from and against any claim for damages to person or Property whatsoever arising out of any activity of Applicant, its employees, officers, agents, representatives, contractors, subcontractors or consultants, on or about the Property or in any way atising out of this Agreement, with the ex- ception of the sole negligence or willful misconduct of Ditch Company. 10. NOTICES. All notices or communications required hereunder between Ditch Company and Applicant shall be in writing, and may be given either personally, by a recognized national over- night courier or by certified United States mail, return receipt requested. If given by United States mail, the notice shall be deemed to have been given on the date of receipt or rejection as shown on the receipt, or if no return receipt is requested, three business days after deposit of the mail postage prepaid. If personally delivered, notice shall be deemed to have been given on the date of delivery to the party to whom it was addressed. If by national overnight courier, notice shall be deemecl to have been given one day after delivery to the courier service. Any party hereto, by giving ten business days' written notice to the other, may designate any other address in substitution of the address to which the notice or communication shall be given. Notices or communications shall be given to the parties at the addresses set forth below, unless and until specified otherwise in writing: If to Ditch Company: The North Loudon Ditch And Reservoir Company % Jack Fetig, President 7029 South College Avenue Fort Collins, CO 80525 With Copies to: Ditch Company Attorney Starr & Westbrook, P.C. 210 East: 29'" Stteet Page3of7 Loveland, CO 80538 Tel: 970-667-1029 If to Applicant: \¥/\Y/W Prnpercles. LLC Attention: JayWeibcl, Manager 38'15 West Couii.t;y Rond 4 Benhoud, CO 80513 Tel: q-11.,-J-.15-)S7'( Fax: NA Email: 'Je,t\,Jc,{~we,: be\ @'.'.r"'''-"'1 [-co,-,-. 11. MISCELLANEOUS. a. This Agreement may not be assigned by Applicant to another party, and any purported voluntary or involuntary assignment of Applicant's exclusive negotiation rights granted herein shall be null and void. b. This Agreement is entered only fot the benefit of the parties executing this Agreement and not for the benefit of any other individual, entity, or person. c. This Agreement may be amended only in writing by the mutual agreement of the original parties. d. If any term, provision, covenant, or conc\ition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provision of this Agree- ment shall continue in full force and effect. e. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado without reference to choice-of-laws rules. f. This Agreement constitutes the entire understanding and agreement of the parties and su- persedes all prior understandings, negotiations, or agreements, between the parties with respect to the subject matter hereof. g. This Agreement has been reviewed by legal counsel for all parties, and no presumption or rule that ambiguities shall be construed against the party shall apply to the interpretation or en- forcement of this Agreement. h. Captions at the beginning of each paragraph of this .Agreement are for reference only and shall in no way define or interpret any provision hereof. i. Time is of the essence in this Agreement. j. Iflegal action is necessary to enforce any terms or conditions of this Agreement, the pre- vailing party shall be entitled to recover from the other party its reasonable attorneys' fees and costs. k. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. Applicant and each person executing this Agreement on behalf of Applicant does hereby covenant and warrant that (1) Appli- cant is duly formed and validly existing under the laws of Colorado, (2) Applicant has and is duly qualified to do business in Colorado, (3) Applicant has full corporate power and authority to enter into this Agreement and to perform all of Applicant's obligations hereunder, and (4) each person (and all of the persons if more than one signs) signing this Agreement on behalf of Applicant is duly and validly authorized to do so. 13. LIST OF EXHIBITS. Exhibit A Legal Description Page4 of7 DITCH COMPANY: The North Loudon Ditch And Rese1voir Company STATE OF COLORADO ) ) ss . COUNTY OF LARIMER ) ~ -r--'c The foregoing instrument was acknowledged before me this ,Z-6 day of4:-'txq('Uj ___ , 20)-'r, by Jack Fetig as Presiden t of the Ditch Company. q,,i,, My Commission expires: ) /G. /'a,,L{ Witness my hand and official l ea!./ QJIA/JM{_ !!1ee JLJJ ~l. ,) Page 6 o f 7 Notary Public DANIELLE HILL-LIDMARK NOTARY PUBLIC STATE OF COLORADO NOTARY ID 19994035612 ~ COMMISSION EXPIRES JANUARY 02, 2024 EXHIBIT A TO AGREEMENT TO NEGOTIATE LEGAL DESCRIPTION OF PROPERTY MAP OF PROPERTY Parcel Number: 9611100002 Schedule Number: 0226980 Account Number: R0226980 And Parcel Number: 9611100003 Schedule Number: 1660099 Account Number: R1660099 Page 7 of7 «¾" , " '"'- l,.-.,-.-,,~~--v::::::=:=--•--~~~~=~-~=-~~,,-~=-~=~,--"'~~1w'"'~ .1, 1005 Ken Pratt Blvd . e @ '1~ , Longmont, CO 80501 . 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