HomeMy WebLinkAboutMONTAVA - PHASE G & IRRIGATION POND - BDR210013 - SUBMITTAL DOCUMENTS - ROUND 6 - EASEMENTS
AMENDMENT TO EASEMENT AGREEMENT
THIS AMENDMENT TO EASEMENT AGREEMENT (this “Amendment”) is entered into as of
____________, 2023, by and between STORYBOOK 3RD HOMEOWNERS ASSOCIATION, a Colorado
nonprofit corporation (“Storybook”) and Montava Partners, LLC, a Colorado limited liability company
(“Montava”). Storybook and Montava may be referred to herein individually as a “Party,” and collectively,
as the “Parties.”
RECITALS
WHEREAS, Montava has the right to acquire approximately 108.6⁺/⁻ acres of real property in Larimer
County, Colorado (“District Property”) more particularly described under and by virtue of that certain Real
Estate Exchange Agreement, dated June 27, 2019 (as the same may be amended from time-to-time, the
“Exchange Agreement”), by and between Montava’s predecessor in interest and the POUDRE SCHOOL
DISTRICT R-1, a public school district and political subdivision of the state of Colorado (the “District”); and
WHEREAS, Montava has the right to acquire approximately 841.703⁺/⁻ acres of real property in
Larimer County, Colorado (the “AB Property”) more particularly described under and by virtue of that certain
Sale and Purchase Contract dated July 12, 2017 (as may be amended from time-to-time, the “Purchase
Contract”), between Montava’s predecessor in interest, and U.S. Bank National Association as Corporate
Trustee of the Anheuser-Busch Foundation, a Missouri charitable (“AB Seller”); and
WHEREAS, the District Property is encumbered by that certain Detention Pond Easement
Agreement dated April 25, 2014, recorded with the Larimer County Clerk and Recorder on April 30, 2014
at Reception No. 20140021325 (the “Easement Agreement”), by and between MIDTOWN HOMES AT
STORYBOOK, LLC (“Midtown”) and the District; and
WHEREAS, Storybook is the successor in interest to Midtown as “Developer” under Easement
Agreement, and Storybook and Montava desire to enter into this Amendment to amend the Easement
Agreement as further set forth herein.
NOW THEREFORE, for good and valuable consideration set forth below, the parties agree as
follows:
1. Incorporation; Definitions. The foregoing recitals are incorporated by reference as if expressly set
forth in this section. Capitalized terms used herein, but not defined herein, shall have the meaning
ascribed to such terms in the Easement Agreement. “Development Property” shall mean the
District Property and the AB Property.
2. Effectiveness and Amendment to Easement Agreement. As further set forth in Paragraph 5 hereof,
this Amendment shall be effective following closing of the Exchange Agreement and Purchase
Contract, and upon recording of this Amendment in the real property records of the Larimer County
Clerk and Recorder. The Parties desire to replace the Detention Pond Easement granted in
Paragraph 1 of the Easement Agreement with an easement for the Stormwater Facilities, as defined
below. Paragraph 1 of the Easement Agreement is deleted in its entirety and is replaced with the
following language:
Montava, its successors and assigns, grant and conveys for the benefit of
Storybook, its successors and assigns, a perpetual, non-exclusive easement, on,
over, across and upon the real property described on Exhibit A (the “Stormwater
Easement”), attached hereto and incorporated herein, for the installation,
construction, operation, use, repair and maintenance of an underground storm
4870-7523-9487, v. 6
water sewer line, and appurtenant facilities and related improvements located
therein (collectively, the “Stormwater Facilities”) for storm water drainage from
Storybook 3rd Filing. The Stormwater Easement shall be located based upon the
as-built Stormwater Facilities, generally as depicted on Exhibit B, attached hereto,
and incorporated herein.
3. Installation and Maintenance; Easement in Favor of Montava.
a. The installation, construction, operation, repair and maintenance of the Stormwater Facilities
shall be performed by Montava, or its successors and assigns, at their sole cost and expense.
b. Storybook grants to Montava, its contractor(s), successors and assigns, an easement for
construction activities, ingress and egress across those portions of Tracts A and B
according to the Plat of Storybook 3rd Filing, City of Ft. Collins, County of Larimer, State
of Colorado, recorded with the Larimer County Clerk and Recorder on April 23, 2014 at
Reception No. 20140020092 (the “Storybook Property”), as may be reasonably necessary
for the installation, construction, operation, repair and maintenance of the Stormwater
Facilities, including, without limitation, the right to close portions of public walks and other
real property controlled by Storybook during such installation, construction, operation, repair
and maintenance operations.
c. During installation and construction of the Stormwater Facilities, the Detention Pond
Easement as set forth in Paragraph 1, and the Detention Pond described in Paragraph 2 of
the Easement Agreement shall remain unaffected and Storybook shall maintain the right of
conveyance of stormwater across those portions of the District Property in accordance with
the terms of the Easement Agreement unaffected by this Amendment. Notwithstanding
the foregoing, Montava, or its contractor(s), successors and assigns, shall be permitted to
fill the Detention Pond to permit the development of the project, and the installation and
construction of the Stormwater Facilities. Upon completion of the Stormwater Facilities,
Paragraphs 4 and 7 of the Easement Agreement shall be deemed deleted in its entirety.
d. All areas of the Storybook Property disturbed during the construction, operation, repair and
maintenance of the Stormwater Facilities shall be restored by Montava to original, pre-
construction condition at Montava’s sole expense.
e. To the extent allowed by law, Montava shall be liable for loss and damage which shall be
caused by any wrongful exercise of the rights of ingress or egress to or from the Easement
or by wrongful or negligent acts or omission of its agents or employees.
4. Release of Current Easement and Related Modifications. Upon recording of this Amendment, (a)
the Detention Pond Easement granted in Paragraph 1 of the Easement Agreement (b) the temporary
construction easements referenced in Paragraph 3 of the Easement Agreement and described and
depicted on Exhibit E and Exhibit C thereof, are fully released and vacated. The Parties agree that
upon the completion of the Stormwater Facilities: (i) the Stormwater Easement defined above shall
replace the Detention Pond Easement for all purposes; (ii) the term Detention Pond shall be
replaced by the term Stormwater Facilities, for all purposes; and (iii) the Detention Pond Easement
shall be deemed fully and forever released and vacated.
5. Effectiveness of this Amendment. This Amendment shall not be recorded or deemed effective
unless and until the platting and subdivision of a portion of the District Property has been recorded
in the real property records of Larimer County. The recording of such plat in the real property
records of the County of Larimer shall be conclusive evidence that this Amendment is in effect.
The Parties hereby acknowledge and agree that notwithstanding any terms set forth in the Easement
Agreement or any other communication, writing, instrument or agreement set for in the Easement
Agreement have been changed or modified by this Amendment and all such other terms and
4870-7523-9487, v. 6
conditions shall continue in full force and effect. If any term or provision of the Easement
Agreement is contradictory to, or inconsistent with, any term or provision of this Amendment, then
the terms and provisions of this Amendment shall in all events control. The Easement Agreement,
as hereby amended, is in full force and effect, is hereby ratified and affirmed by, and is binding
upon the Parties, their successors and assigns in accordance with its terms.
6. Assignment. This Amendment and the rights and obligations of Montava described herein, may be
assigned by Montava, in whole or in part, to any contractor(s), developer, homeowners association, or
metropolitan district having any obligations or interest in and to the Development Property (or any
portion thereof), including, without limitation, Montava Metropolitan District No. 1, a quasi-municipal
corporation and political subdivision of the State of Colorado.
7. Authority; Counterparts. The individuals signing this Amendment represents to the other that such
individual is authorized to execute and deliver this Amendment on behalf of the entity for which the
individual is signing. This Amendment may be executed in any number of counterparts and each
counterpart shall be deemed to be an original document. All executed counterparts together shall
constitute one and the same document, and any counterpart signature pages may be detached and
assembled to form a single original document. The provisions of this Amendment shall be binding on
the successors and assigns of the Parties hereto.
[remainder of page left blank; signature pages follow]
4870-7523-9487, v. 6
Exhibit A
[Real Property to be Encumbered by Stormwater Easement]
Portions of Tracts C, D and E, of Montava Subdivision Phase G, located in the South Half of Section 32,
Township 8 North, Range 68 West of the 6th P.M., City of Ft. Collins, County of Larimer, State of
Colorado, according to the final plat thereof.
Exhibit B
[Stormwater Easement]
(attached)
4870-7523-9487, v. 6