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HomeMy WebLinkAboutNEW BELGIUM BREWERY - Filed OA-OTHER AGREEMENTS - 2002-11-13EASEMENT AGREEMENT (New Belgium Brewing Company, Inc.) THIS EASEMENT AGREEMENT is made and entered into by and between NEW BELGIUM BREWING COMPANY, also known as NEW BELGIUM BREWING COMPANY, INC., a Colorado Corporation, the address of which, for purposes of this Agreement, is 350 Linden Street, Fort Collins, Colorado 80524 ("Grantor"), and SPRINGER -FISHER, INC., a Colorado Corporation, as to an undivided fifty percent (50%) interest; JAMES P. HOFFMAN, as to an undivided twenty percent (20%) interest; DOROTHY A. WHISLER, as to an undivided twenty percent (20%) interest; and the CITY OF FORT COLLINS, a Municipal Corporation, as to an undivided ten percent (10%) interest, whose address, for purposes of this Agreement, is Post Office Box 86, Timnath, Colorado 80547 (collectively, "Grantees"). WITNESSETH: WHEREAS, the Grantor is the real property located in Larimer legally described on Exhibit "A" herein by reference; and owner of that certain parcel of County, Colorado ("NB Property") attached hereto and incorporated WHEREAS, Buckeye Limited Liability Company, a Colorado Limited Liability Company, is the owner of a parcel of real property adjacent to and immediately east of the NB Property ("Buckeye Property"); and WHEREAS, the Grantees are the owners of undivided interests in the John G. Coy Ditch and certain water rights associated therewith in the percentages set forth above; and WHEREAS, a portion of the John G. Coy Ditch is located upon the NB Property ("NB Existing Ditch") and the Buckeye Property ("Buckeye Existing Ditch"); and WHEREAS, in connection with the construction of certain improvements upon and adjacent to the NB Property and/or the Buckeye Property, the Grantor desires to relocate a limited segment of the NB Existing Ditch ("NB Vacated Ditch") and the owner of the Buckeye Property desires to vacate a limited segment of the Buckeye Existing Ditch ("Buckeye Vacated Ditch"); and WHEREAS, for convenience of reference, the NB Vacated Ditch and the Buckeye Vacated Ditch shall be hereinafter referred to as "Both Vacated Ditches;" and WHEREAS, the Grantor desires to relocate the NB Vacated Ditch by constructing a new segment to replace the NB Vacated Ditch ("NB Replacement Ditch"), which NB Replacement Ditch will be located generally north of and parallel to the NB Vacated Ditch; and WHEREAS, concurrently with the recordation of this Easement Agreement, the Grantees intend to record an Easement Agreement entered into between the Grantees and the owner of the Buckeye Property to relocate the Buckeye Vacated Ditch by constructing a new segment to replace the Buckeye Vacated Ditch ("Buckeye Replacement Ditch"), which Buckeye Replacement Ditch will be located generally north of and parallel to the Buckeye Vacated Ditch; and (HF&M 03127195) WHEREAS, the NB Replacement Ditch shall be constructed in accordance with and improvements shall be installed pursuant to Drawing C-5 of 12 (Coy Ditch Culvert Design, Plan and Profile) and Drawing C-6 of 12 (Utility Plan) prepared by Water, Waste & Land, Inc. of Fort Collins, Colorado and initialed by Springer -Fisher, Inc. on behalf of the Grantees ("NB Ditch Improvements"); and WHEREAS, the Grantees are willing to agree to relinquish their interest in the NB Vacated Ditch and have the NB Vacated Ditch relocated to the NB Replacement Ditch and, in exchange therefor, the Grantor is willing to grant an easement to the Grantees for the NB Replacement Ditch, together with access easements therefor, and install the NB Ditch Improvements and agree to certain covenants running with the land with respect to maintenance and repair of the culverts to be located in the NB Existing Ditch and the NB Replacement Ditch. NOW, THEREFORE, in consideration of the foregoing recitals, the abandonment and vacation of the NB Vacated Ditch, the granting of the easements herein set forth, the covenants and provisions set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the Grantor and the Grantees hereby agree as follows: 1. Relinquishment of Both Vacated Ditches. The Grantees do hereby relinquish, vacate and abandon all of their right, title and interest in and to Both Vacated Ditches which are legally described as follows: All of that portion of prescriptive easement for John G. Coy Ditch as it now exists situated in the Northeast Quarter of the Northwest Quarter of Section 12, Township 7 North, Range 69 West of the Sixth Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, the centerline of which is more particularly described as follows, considering the East line of said Quarter -Quarter Section as bearing North 0001913311, with all bearings herein relative thereto; Commencing at the Southeast corner of the Northeast Quarter of the Northwest Quarter of said Section; thence North 00019133" East, 19.50 feet, to the centerline of the John G. Coy Ditch, as it now exists, and the point of beginning; thence North 89048114" West, 282.59 feet; thence North 49028158" West, 46.36 feet being a point on the new easement of said Ditch.✓ 2. Grant of Easements. The Grantor does hereby grant, bargain, sell, convey and confirm unto the Grantees the following described easements: A. NB Replacement Ditch. ✓A ditch easement for the John G. Coy Ditch situated in the Northeast Quarter of the Northwest Quarter of Section 12, Township 7 North, Range 69 West of the Sixth Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, more particularly described as follows, considering the East line of said Quarter -Quarter Section as bearing North 0001913311, with all bearings herein relative thereto; (HF&M 03/27195) - 2 - Commencing at the Southeast corner of the Northeast Quarter of the Northwest Quarter of said Section; thence North 00019133" East, 49.50 feet; thence North 89048114" West, 110.00 feet to the point of beginning, said point being on the easterly boundary line of the NB Property, and the centerline of the ditch easement; thence with said boundary line South 00019133" West, 7.50 feet; thence leaving said boundary line North 89048114" West, 210.74 feet; thence North 49028158" West, 302.26 feet to the north-westerly boundary of said property; thence with said property line North 41010159" East, 15.00 feet; thence leaving said boundary line South 49028158" East, 296.57 feet; thence South 89048114" East, 205.27 feet to the easterly boundary line of said property; thence with said boundary line South 00019133" West, 7.50 feet to the point of beginning.✓ The Grantees shall be entitled to use the above -described ditch easement (i.e., NB Replacement Ditch) for the transmission of irrigation water in the same manner and to the same extent as irrigation water was transmitted through the NB Vacated Ditch. Said right of use by the Grantees shall include the right to clean, restore, repair and maintain the NB Replacement Ditch upon the NB Property, together with the exercise of all previously existing rights which the Grantees had with respect to the NB Vacated Ditch, subject to the limited access set forth in subparagraph 2.B. B. Access Easement. A fifteen (15) foot wide easement for ingress, egress and access for pedestrians, equipment and vehicles over, across and upon a fifteen (15) foot strip of land located adjacent to and immediately south of the most southerly and . southwesterly boundaries of the NB Existing Ditch less that portion described as the "NB Vacated Ditch" and adjacent to and immediately south of the most southerly boundary of the NB Replacement Ditch described in subparagraph 2.A. above (jointly referred to as "NB Modified Ditch"). In addition, the Grantor does further grant, bargain, sell, convey and confirm unto the Grantees, a right of ingress, egress and access over, across and upon all existing roads and parking areas located upon the NB Property for the purpose of obtaining access to the NB Modified Ditch for repairs and maintenance. The Grantor shall be solely responsible for maintenance and repair of all such private roads and parking areas and the Grantees shall have no responsibility therefor unless such roads or parking areas are damaged by the willful or negligent activities of the Grantees upon the NB Property, in which case the Grantees shall be responsible in their proportionate shares for the repair of any such damage. 3. NB Ditch Improvements. The parties agree that, in partial consideration for the abandonment, extinguishment and vacation of the NB Vacated Ditch by the Grantees, the Grantor shall install or cause to be installed the NB Ditch Improvements described above. The NB Ditch Improvements shall be installed in a good and workmanlike manner on or before June 1, 1995. The parties acknowledge that among the NB Ditch Improvements to be installed by the Grantor will be two (2) reinforced concrete elliptical culverts forty-five (45) inches by twenty-five (25) inches in diameter with flared sections. In the event that the installation or placement of such culverts shall interfere with, (HP&M 031227195) - 3 - restrict or cause problems with the flow of water through a ten (10) foot by four (4) foot concrete parshall flume located upon the NB Property which measures the flow of irrigation water through the NB Existing Ditch, the Grantor, its successors and assigns, shall be responsible for altering, modifying, changing or replacing the culverts constituting part of the NB Ditch Improvements to rectify and correct such problem. 4. Maintenance. The Grantor, for and on behalf of itself, its successors and assigns, does hereby represent and warrant that it shall be responsible for properly cleaning and clearing the culverts constituting part of the NB Ditch Improvements of trash and debris so that the irrigation water can flow through the culverts at all times without impediment or restriction. 5. Governmental Permits. The Grantor represents that it and/or its agents and employees have secured all permits required by any governmental authority for the relocation of the NB Vacated Ditch to the NB Replacement Ditch upon the NB Property. 6. Indemnification. The Grantor shall indemnify, save and hold harmless the Grantees, their agents, servants and employees, against any and all claims, damages, liabilities and court awards, including costs, expenses and attorneys' fees, incurred as a result of any flooding, blockage or water damage caused by the relocation of a portion of the NB Existing Ditch and the installation of the NB Ditch Improvements. 7. Warranty of Title. The Grantor does hereby covenant and agree to and with the Grantees that the Grantor is lawfully seized of the NB Property and that the Grantor has a good and lawful right to convey the easements herein to the Grantees and the Grantor warrants title thereto free and clear of any liens and encumbrances. The parties hereto agree that the relinquishment, abandonment and vacation of the NB Vacated Ditch by the Grantees is expressly conditional and contingent upon the warranty of title by the Grantor with respect to the easements herein granted to the Grantees. 8. Attorneys' Fees and Costs. In the event of any controversy, claim or dispute relating to this instrument or the breach thereof, the prevailing party shall be entitled to recover from the losing party reasonable attorneys' fees and costs. 9. Covenants Running With Land and Successors. This Agreement shall be recorded in the real estate records of Larimer County, Colorado, and all benefits and burdens and the provisions herein contained shall run with the NB Property and all land receiving irrigation water from the John G. Coy Ditch and shall be binding upon and inure to the benefit of the respective parties hereto, their heirs, legal representatives, successors and assigns and all persons claiming under them. 10. Amendment. This Agreement may not be amended, modified, supplemented or altered except by a writing executed by the parties hereto or their successors in interest and recorded in the real estate records of Larimer County, Colorado. 11. Captions. The captions for this Agreement are inserted only as a matter of convenience and for reference. They do not define, limit or prescribe the scope or intent of this Agreement and they shall not affect the interpretation or construction hereof. 12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. (HF&M 03/27/95) - - 4 - IN WITNESS WHEREOF, the parties hereto have executed this Easement Agreement on the ��day of March, 1995. NEW BELGIUM BREWING COMPANY, a/k/a NEW BELGIUM BREWING COMPANY, INC., a Colorado ,Cprpo) atior} / ATTEST: / 7 By� 7 Kim Jordan, Secretary JId e D. besch, Pres "Grantor" ATTES Davi B. Hill, Secretary STATE OF COLORADO ss. COUNTY OF �n, 2 ) SPRINGER -FISHER, INC., a Colorado Corporation 141 DOROTHY A. WHISLER CITY OF FORT COLLINS, a Mun'cipalorporation By L!^� %jp l,,,, AS To Fro"i19 "Grantees" DeFLt,? City Attorney The foregoing instrument was acknowledged before me this day of March, 1995, by Jeffrey D. Lebesch, as President, and Kim Jordan, as Secretary, of NEW BELGIUM BREWING COMPANY, also known as NEW BELGIUM BREWING COMPANY, INC., a Colorado Corporation. WITNESS my hand and official seal. My commission expires: STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this J� day of 1 1995, by Harold S. Fisher, as President, and David B. Hill, a ecretary, of SPRINGER -FISHER, INC., a Colorado Corporation.' WITNESS my hand and official seal. My commission expires: /6-a-9� II.CLLG�1i Notar Public (HF&M 03127/95) - 5 - STATE OF -(,�,j � ss. COUNTY OF / IYIE ( ) _1�The foregoing instrument was acknowledged — C� day of March, 1995, by JAMES P. HOFFMAN. WITNESS my hand and offi My commission expires: STATE OF ) ss. COUNTY OF ) before me this The foregoing instrument was acknowledged before me this 3/ S�' day of March, 1995, by DOROTHY A. WHISLER. WITNESS my hand and official seal. My commission expires: //j AG Notary li STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged pefore me this fr' day of 1995, by % iGilC- �• C1FS as !i°r,'! of CITY OF FORT COLLINS, a Municipal Corporatiorf. WITNESS my hand and official seal. My commission expires: t?'1-2- Notary Public (HF&M 03/27/95) - 6 - EXHIBIT "A" ATTACHED TO AND MADE A PART OF EASEMENT AGREEMENT BY AND BETWEEN NEW BELGIUM BREWING COMPANY, A/K/A NEW BELGIUM BREWING COMPANY, INC. ("GRANTOR") AND SPRINGER -FISHER, INC.; JAMES P. HOFFMAN; DOROTHY A. WHISLER; AND CITY OF FORT COLLINS ("GRANTEES" Legal Description of NB Property All of that part of the Northeast Quarter of the Northwest Quarter of Section 12, Township 7 North, Range 69 West of the Sixth Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being a portion of Parcel 5 as described in Exhibit A as conveyed by Special Warranty Deed with Reception Number 93023925 on file in the Larimer County Clerk and Recorder's Office; considering the East line of the Northwest Quarter of said Section as bearing North 00 degrees 19 minutes 33 seconds East, with all bearings contained herein relative thereto, more particularly described as follows: Commencing at the Southeast corner of the Northeast Quarter of the Northwest Quarter of said section; thence with the said Section centerline, North 00 degrees 19 minutes 33 seconds East, 34.00 feet to the Northerly right-of-way line of Buckingham Street as dedicated herein, thence with said right-of-way line North 89 degrees 48 minutes 14 seconds West, 110.00 feet, to the point of beginning: thence with said right-of-way line North 89 degrees 48 minutes 14 seconds West, 312.45 feet, to the point of curve; thence 147.41 feet along said curve concave to the Northeast with a radius of 206.00 feet, and whose chord bears North 69 degrees 18 minutes 14 seconds West, 144.28 feet; thence with said right-of- way North 48 degrees 48 minutes 14 seconds West, 95.53 feet to the right-of-way line of Linden Street as dedicated by Dedication Deed with Reception Number of 95065 on file in the Larimer County Clerk and Recorder's Office; thence with said right-of-way line North 41 degrees 11 minutes 00 seconds East, 174.40 feet, to the point of curve; thence with said curve and right-of-way 198.11 feet along said curve concave to the Northwest, with a radius of 528.40 feet, whose chord bears North 30 degrees 26 minutes 32 seconds East, 196.96 feet; thence South 89 degrees 48 minutes 14 seconds East, 307.04 feet; thence South 00 degrees 19 minutes 33 seconds West, 415.00 feet, to the point of beginning and containing 3.9294 acres, together with all easements of record and as shown hereon.