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HomeMy WebLinkAboutHARMONY SCHOOL SHOPS FOURTH LOT 8 - Filed OA-OTHER AGREEMENTS - 2007-11-26DECLARATION OF JOINT ACCESS EASEMENT THIS DECLARATION is made on the date hereinafter set forth by HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company ("Executive Park") and AVG HARMONY, LLC, a Delaware Limited Liability Company ("AVG"). Executive and AVG are sometimes hereinafter referred to jointly as "Declarants." RECITALS A. Executive Park is the owner of that certain parcel of real property (hereinafter referred to as the "Executive Park Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. B. AVG is the owner of that certain parcel of real property (hereinafter referred to as the "AVG Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. C. Declarants desire to establish a temporary non- exclusive easement and right-of-way over and across that portion of the Executive Park Property described on Exhibit "C" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the Temporary Easement"), and to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the Executive Park Property described on Exhibit "E" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "East Easement"), and to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the AVG Property described on Exhibit "D" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "West Easement"). The East Easement and the West Easement are sometimes hereinafter referred to collectively as the "Access Easement." IN WITNESS WHEREOF, the parties hereto have executed this Declaration of Joint Access Easement as of the day and year first above written. HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company B . Campa , Man ager AVG HARMONY, LLC, a Delaware Limited Liability Company By: 1� �L��J�t - rrance L. an an Jr., Agent for Owner STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) a3 The foregoing instrument was acknowledged before me this - day of O ctj�,2006, by Gino Campana as Manager of HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company. WITNESS my hand and official seal. My commission expires: ��ant"a� �3 Notary Vblic 41 �OF COL (HFSM 10/16/06) 10 STATE OF Odpra ) ss. COUNTY OF �irtinQlln/ ) The foregoing instrument was acknowledged before me this day of mien, 2006, by Terrance L. Fangman, Jr. as Agent for Owner of AVG HARMONY LLC, a Delaware LimitedLiability Company. WITNESS my hand and official seal. My commission expires: GENERAL NOTARY • State of Nehraska JESSICA COOPER MY Comm Esn ien.31,�OC� jNoty Public 11 (HE&M 10/16/06) RATIFICATION (Lender - Executive Park Property) The undersigned, having a security interest in or lien upon all or any part of the real property described on Exhibit "A" attached hereto and incorporated herein by reference, hereby approves, ratifies, confirms, and consents to the foregoing Declaration of Joint Access Easement. IN WITNESS WHEREOF, the undersi ned has caused its name to be h re nto subscribed by its V10 this � day of 2006. I p( � i .v Title: I'llee— STATE OF COLORADO ) COUNTY OF U � � ss. The foregoing instrument was acknowledge be orb e this day of (9C Dar 2 06, by �� ((iQ�,� , tJ�ICV�� as l L of �lQ, iADiUIg1 a !� WITNESS my hand and official seal. My commission expires: Notary Public (HF&M 10/16/06) 12 RATIFICATION (Lender - AVG Property) The undersigned, having a security interest in or lien upon all or any part of the real property described on Exhibit "B" attached hereto and incorporated herein by reference, hereby approves, ratifies, confirms, and consents to the foregoing Declaration of Joint Access Easement. IN WITNESS WHEREOF, the undersigned has caused its name to be this or1 day of heIreunto subscribed by its nT 1 2006. CON&VI.i. .aa' 4.v �.., MI-- STATE OF NEBRASKA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this a�AA day of & 2006, by 'A�as Of T a � ►. ._ � is �.�..� ' � .c_ WITNESS my hand and official seal. My commission expires: q-?'-00 Notary ublic GE=NOTARY-Statoaskajel 8 (HF&M 06/22/06) 12 EXHIBIT "A" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the Executive Park Property A parcel of land located in the East 1-2 of the Southwest '< of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more particularly described as follows: Considering the East line of the East '� of the Southwest , of Section 32, Township 7 North, Range 68 West as bearing South 00°12'21" West with all bearing contained herein relative thereto. Commencing at the Northeast corner of the East 1-� of the Southwest 1-4 of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, County of Larimer, State of Colorado; Thence run South 00012'21" West along the East line of the said East 1,� for a distance of 2,652.87 feet to the Southeast corner of said East '-�; Thence leaving said East line run North 89027'04" West along the South line of said East 1- for a distance of 661.67 feet to the Point of Beginning; Thence continue North 89°27.04" West along said South line for a distance of 662.89 feet to the Southwest corner of said East 1�; Thence leaving said South line run North 00015'46" East along the West line of said East '-� for a distance of 30.78 feet to the North right of way line of State Highway #68 (East Harmony Road); Thence leaving said North right of way line continue North 00015'46" East along said West line for a distance of 265.87 feet; Thence leaving said West line run North 89045116" East for a distance of 691.37 feet; Thence run South 00059'33" West for a distance of 14.19 feet to the beginning of a curve concave to the East having a radius of 548.68 feet and a chord bearing of South 04048'50" West; Thence run Southerly along the arc of said curve through a central angle of 7°38'34" for a distance of 73.19 feet to the end of said curve; Thence run South 09008'00" West for a distance of 89.73 feet to the beginning of a curve concave to the East having a radius of 589.50 feet and a chord bearing of South 05037'27" West; Thence run Southerly along the arc of said curve through a central angle of 7'01106" for a distance of 72.21 feet to the end of said curve; Thence run South 02°06154" West for a distance of 26.83 feet to the aforesaid North right of way line; Thence leaving said North right of way line continue South 02006154" West for a distance of 31.69 feet to the Point of Beginning. Together with a non-exclusive Limited Entry Easement appurtenant to the above -described property, as set forth in that certain Declaration and Reciprocal Easement Agreement dated November 15, 2004, by and between ARC Communities 2, LLC and Nominee Services, Inc. recorded December 27, 2004, at Reception No. 20040123056, County of Larimer, State of Colorado. EXHIBIT "B" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the AVG Property Lots 1, 2, 3, 4, 5, 6, 7, B and 9, and Tract A, Harmony School Shops 4tn Filing, in the City of Fort Collins, County of Larimer, State of Colorado. EXHIBIT "C" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the Temporary Easement LEGAL DESCRIPTION ACCESS EASEMENT A PORTION OF THE SOUTHWEST ONE -QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6th PM, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARING: THE EAST LINE OF LOT 6, HARMONY SCHOOL SHOPS 4TR FILING, IS ASSUMED TO BEAR N00° 12'57"E. COMMENCE AT THE SOUTHEAST CORNER OF LOT 6, HARMONY SCHOOL SHOPS 4TH FILING; THENCE N 00012'57"E, ON THE EAST LINE OF SAID LOT 6, A DISTANCE OF 21 OA4 FEET TO THE POINT OF BEGINNING; THENCE NOO°12'57"E, ON THE EAST LINE OF LOT 4, HARMONY SCHOOL SHOPS 4' FILING, A DISTANCE OF 34.00 FEET; THENCE S89°26'19"E, A DISTANCE OF 678.14 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 54057'31" AND A RADIUS OF 14.00 FEET, A DISTANCE OF 13.43 FEET, THE CHORD OF SAID CURVE BEARING N63004'38"E, WITH A LENGTH OF 12.92 FEET TO THE WEST RIGHT-OF-WAY LINE OF SNOW MESA DRIVE, ANDA POINT OF CURVATURE; THENCE ON SAID WEST RIGHT-OF-WAY LINE AND THE ARC OF A NON -TANGENT CURVE TO THE LEFT, CURVE HAVING A DELTA OF 4-53'49" AND A RADIUS OF 548.68 FEET, A DISTANCE OF 46.89 FEET, THE CHORD OF SAID CURVE BEARING SO4.58-51 "W, WITH A LENGTH OF 46.88 FEET; THENCE N87°28'05"W, A DISTANCE OF 5.17 FEET TO A POINT OF CURVATURE, THENCE ON THE ARC OF A NON -TANGENT CURVE TO THE LEFT, CURVE HAVING A DELTA OF 96°31'32" AND A RADIUS OF 5.93 FEET, A DISTANCE OF 9.99 FEET, THE CHORD OF SAID CURVE BEARING N41°I0'14"W, WITH A LENGTH OF 8.85 FEET, TO A POINT OF TANGENCY; THENCE N89026'19"W, A DISTANCE OF 674.74 FEET TO THE POINT OF BEGINNING. CONTAINING AN OVERALL AREA OF 23,430 SQUARE FEET. I, CHAD R. WASHBURN, A COLORADO LICENSED HEREBY STATE THAT THE ABOVE LEGAL DESCRI PREPARED UNDER MY RESPONSIBLE CHARGE INFORMATION, AND BELIEF, ARE CORRECT. r COLORADO PLS NO.37963 FOR AND ON THE BEHALF OF JR ENGINEERING LLC 2620 EAST PROSPECT ROAD, SUITE 190 FORT COLLINS, CO. 80525 LAND SURVEYOR, DO kCHED EXHIBIT WERE OF MY KNOWLEDGE, THIS LEGAL DESCRIPTION DOES NOT CONSTITUTE A TITLE SEARCH BYJR ENGINEERING TO DETERMINE OWNERSHIP 9F THIS TRACT OR VERIFY EASEMENTS OF RECORD. JR ENGINEERING AND THE SURVEYOR OF RECORD ASSUMES NO 4ESPONSISILITY FOR OWNERSHIP RIGHTS OR EXISTING EASEMENT RIGHTS AND RECOMMENDS CONSULTATION WITH INATTORNEY r I ON17& N1b Sd011S 700fOS,M V1YAP"V d J07 0 z z z W m z a 3�1iH0 V> MONS bb'0IZ SONRIV39 d0 SSVB ON1741 N!O SoVHS 70VWS -41W YO",i' 9 J07 0 ZIL �@@ N 8 0 200 zS C7 wVV) M as O W 8 f71'6 z0� it m1)S UQ VVv < = � V) 0 R (HF&M 10/16/06) 16 EXHIBIT "D" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the West Easement LINE TABLE LINE BEARING LENGTH L1 S60'09'01"W 7.42 L2 S87'36'42"W 9.72 L3 N89'26'19"W 7.30 L4 N89'26'19"W 18.06 L5 N0016'28"E 1.45 L6 S89'31'50"W 17.94 L7 N60'09'01"E 7.42 CURVE TABLE CURVE DELTA RADIUS LENGTH CHORD BEARING C1 30'24'40" 30.00 15.92 15.74 S75'21'21"W C2 27'0708" 70.00 33.05 32.74 S73'40'35"W C3 55'33'29" 25.00 24.24 23.30 S6246'57"W C4 23'02'54" 218.00 87.69 87.10 N11'44'18"E C5 8'46'29" 447.71 68.56 68.50 N31-38.31"E C6 27'03'08" 50.00 23.61 23.39 N7X4O'35"E C7 30'24'40" 50.00 26.54 26.23 N75"21'21"E IOTICE: C-ORDING TO COLORADO LAN YD:. MUST CCIvME.4M ANY LEGAL ACTION RASFD LPDN ANY DEFECT IN THI5 SURVEY WITHIN TOREE YEARS FTER YOU F:RST DISCOVER SUCH DE--ECT IN NO EVENT, MAY .ANY ACNON HMED U"CN ANY DEFEC' IN 1FI5 SURVEY 6E CCMMENCEO MORE IAN ZN YEARS AFTER TI Z DATE CF T­E CERTIFICATION 511D04 HEREON. PUBLIC AND EMERGENCY ACCESS EASEMENT EXHIBIT JOB NO. 39347.00 9-20-D6 SHEET 1 OF 2 J•R ENGINF.FRIN( R M"4�f.yp 'A'A Nt NnL Ieq B1v 81.Y1 Edµ O1 IY6 91i'Q-�A.j� RO M 9�.YwpymryeR AGREEMENT NOW, THEREFORE, for Ten Dollars ($10.00) and other valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, Declarants do hereby create, declare, dedicate and establish (i) a temporary, non-exclusive easement on, over and across the Temporary Easement, and (ii) a perpetual, reciprocal non-exclusive easement on, over and across the Access Easement, for the purpose of providing joint and reciprocal vehicular and pedestrian access to the Executive Park Property and the AVG Property, subject to the terms and conditions set forth below. 1. The owner of the Executive Park Property —and the owner of the AVG Property shall have the right at any time and from time to time to construct, install, maintain and repair a temporary paved access driveway and appurtenant improvements over and upon the Temporary Easement, and a permanent paved access driveway, pedestrian trail and appurtenant improvements over and upon the Access Easement. Prior to commencement of construction of any such improvements, the constructing party shall have received the written approval of the plans for such improvements from the other party, which approval shall not be unreasonably withheld or delayed, as well as final approval by the City of Fort Collins ("City") of the plans for such construction, and any building and other permits required by the City. All work performed on any of the driveway and appurtenant improvements shall be performed by the constructing party in a good and workmanlike manner, and in accordance with the approved plans and all applicable laws, rules, orders and regulations of the City and other applicable governmental authorities, if any. Upon completion of such improvements, the party completing same shall notify the other party in writing of the amount of the total costs incurred in constructing such improvements (including with such notice copies of all invoices or other documentation evidencing the costs incurred for such work) and a lien release for work performed on the Temporary Easement or the Access Easement, as applicable, releasing any lien for services rendered and materials supplied on the Access Easement or the Temporary Easement. With respect to any temporary paved access driveway and appurtenant improvements (which shall not be installed more than fifteen [15] days prior to the anticipated issuance of the first certificate of occupancy for building improvements constructed on the AVG Property following the date hereof), AVG shall bear all cost of installation, maintenance and removal (and restoration of the Executive Park Property, if applicable). With respect to permanent improvements constructed pursuant to the foregoing, the non -constructing party (HF&M 10/16/06) 2 LEGAL DESCRIPTION ACCESS EASEMENT A TRACT OF LAND IN PORTIONS OF LOTS 4 THROUGH 8, HARMONY SCHOOL SHOPS 4m FILING, LOCATED IN THE SOUTHWEST ONE -QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH PM, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARING: THE EASTERLY BOUNDARY OF HARMONY SCHOOL SHOPS 4TH FILING, IS ASSUMED TO BEAR N00012'57"E. COMMENCING AT THE SOUTHEAST CORNER OF SAID HARMONY SCHOOL SHOPS 4TH FILING; THENCE NW 12'57"E, ON SAID EASTERLY LINE, A DISTANCE OF 223.44 FEET TO THE POINT OF BEGINNING; THENCE N89°26' 19"W, A DISTANCE OF 166.75 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 30°2N40" AND A RADIUS OF 30.00 FEET, AN ARC LENGTH OF 15.92 FEET, THE CHORD OF SAID CURVE BEARING S75°21'21"W, WITH A DISTANCE OF 15.74 FEET, TO A POINT OF TANGENCY; THENCE S6000VOI"W, A DISTANCE OF 7.42 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 27°03'08" AND A RADIUS OF 70.00 FEET, AN ARC LENGTH OF 33.05 FEET, THE CHORD OF SAID CURVE BEARING S73040'35"W, WITH A DISTANCE OF 32.74 FEET, TO A POINT OF TANGENCY; THENCE S87012'09"W, A DISTANCE OF 87.13 FEET; THENCE N8M6' 19"W, A DISTANCE OF 97.10 FEET; THENCE S8703642"W, A DISTANCE OF 9.72 FEET; THENCE N8902619"W, A DISTANCE OF 7.30 FEET; TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 55033'29" AND A RADIUS OF 25.00 FEET, AN ARC LENGTH OF 24.24 FEET, THE CHORD OF SAID CURVE BEARING S62°46'57"W, WITH A DISTANCE OF 23.30 FEET, TO A POINT OF COMPOUND CURVATURE; THENCE ON THE ARC OF A TANGENT COMPOUND CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 34°47'22" AND A RADIUS OF 182.00 FEET, AN ARC LENG* OF 110.51 FEET, THE CHORD OF SAID CURVE BEARING S17036'32"W, WITH A DISTANCE OF 108.82 FEET, TO A POINT OF TANGENCY; THENCE S00° 12'� 1 "W, A DISTANCE OF 85.54 FEET TO THE NORTH RIGHT-OF- WAY OF HARMONY ROAD; _ THENCE ON SAID NORTHERLY RIGHT-OF-WAY THE FOLLOWING THREE (3) COURSES: (HFSM 10/16/06) 20 1) THENCE N89°26' 19"W, A DISTANCE OF 18.06 FEET; 2) THENCE N00°16'28"E, A DISTANCE OF 1.45 FEET; 3) THENCE S89"31'50"W, A DISTANCE OF 17.94 FEET; THENCE N00012'51"E, A DISTANCE OF 84.19 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 23002'54" AND A RADIUS OF 218.00 FEET, AN ARC LENGTH OF 87.69 FEET, THE CHORD OF SAID CURVE BEARING N11°44'18"E, WITH A DISTANCE OF 87.10 FEET TO A POINT OF COMPOUND CURVATURE; THENCE ON THE ARC OF A NON -TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 08W'29" AND A RADIUS OF 447.71 FEET, AN ARC LENGTH OF 68.56 FEET, THE CHORD OF SAID CURVE BEARING N31 °38'31 "E, WITH A DISTANCE OF 68.50 FEET TO A POINT OF NON - TANGENCY; THENCE S82018' 15'T, A DISTANCE OF 68.44 FEET; THENCE S89026' 19"E, A DISTANCE OF 81.88 FEET; THENCE N87012'09"E, A DISTANCE OF 86.54 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 27003'08" AND A RADIUS OF 50.00 FEET, AN ARC LENGTH OF 23.61 FEET, THE CHORD OF SAID CURVE BEARING N73°40'35"E, WITH A DISTANCE OF 23.39 FEET, TO A POINT OF TANGENCY; THENCE N60°09'01 "E, A DISTANCE OF 7A2 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 30024'40" AND A RADIUS OF 50.00 FEET, AN ARC LENGTH OF 26.54 FEET, THE CHORD OF SAID CURVE BEARING N75.21'21 "E, WITH A DISTANCE OF 26.23 FEET, TO A POINT OF TANGENCY; THENCE S89°26'19"E, A DISTANCE OF 166.63 FEET, TO A POINT ON THE EASTERLY LINE OF SAID HARMONY SCHOOL SHOPS a FILING; THENCE S00° 12'57"W, ON SAID EASTERLY LINE, A DISTANCE OF 20.00 FEET, TO THE POINT OF BEGINNING; CONTAD41NG AN OVERALL CALCULATED AREA OF 17,265 SQUARE FEET. (HF&M 10/16/06) 21 I, CHAD R. WASHBURN, A LICENSED PROFESSIONAL LAND SURVEYOR IN THE STATE OF COLORADO, DO HEREBY STATE THAT THE ABOVE LEGAL DESCRIPTION AND ATTACHED EXHIBIT WERE PREPARED UNDER MY RESPONSIBLE CHARGE AND ON THE BASIS OF MY KNOWLEDGE, INFORMATION, AND BELIEF, ARE CORRECT. __ CHAD R. WASHBURN, PROFESSIONAL LAND SURVE COLORADO PLS NO.37963 FOR AND ON THE BEHALF OF JR ENGINEERING LLC 2620 EAST PROSPECT ROAD, SUITE 190 FORT COLLINS, CO. 80525 THISIZG a DESCRHWONDOESNOTCOAM7MTE A 7TTIE SEARCHBYJR ENGINEERNGTODE7EMOVE OWNERSHIP OF7HIS MCTOR FERIFYEASEMENTS OF RECORD. JR ENCRV£ER/NGAND THE SURPEYOR OFRECORD ASSEAMNO RESWMMHJTYFOR OWNERSN/PRIGH7S OR EXISTTNGRASENFNTRIGH7SAND RECOMMENW CONSULTA77ONWnE ANATIORNEY. (HF&M 10/16/06) 22 (m. .. _ \ ° \ i z 3.LS,ZLOON -� - 0\ §V . / §� � « --- \i §( \ � ( t � i \f �/ /» CN CNw) » •w b: : $ ■ ) mo k �k8® k!| \b 2�)R0 \|| §}j§ g§2WL � ! 2]7� ■ ,K (§m §\ >�2 W� \)\ wx � - / 0 CL \\ 6 k 2z § ie e§ §} 0 OD i k Z. /() �\k §;k \(§ i }ZOE MZW a %�} (2a !§A mom ' kd( m# SSm . \)/ _ )}! EXHIBIT "E" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY (-EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the East Easement (HF&M 10/16/06) 24 Lk' GAF. LESCRIl"rlf 1T" ACCESS EASEhTPNT A PORTION OF TI M SOlMTWT.9T ONE -QUARTER OF SECTION 32, TOWNSI-IIP 7 NORTH. RANGE 68 W'ESIT OF 'flit: 6t1, PM, CF FY OF FORT C:OT.T.INS, COUNTY OF L,kRIMER, STATE OF COLORADO, NMORE PARTICULARLY DESCF-M 'D AS rOL.7.0A'C: BASLS OF SEARING: THE EAST LINE OF T TARMOWY SC-1 TOOT. SHOPS 4' FTT.Tw Cr, iS ASSUMED TO SEAR NWJT57"S. CCMI"IENCE AT TFTF SO11THF.d CT <:ORNF.R OF U7T 6, HARmo-NY SCHOOL �11UI�S 4'" YILLNU, 1'HENC B N 00012'57-E, ON '1'L1E L'LST LANE OF SAID HARMONY SCHOOL SHOPS 47M FILING. A DISTANCE OF 218.40 FEET TO THE POINT OF BEGYND lXG; '1'111:NCI1 N00-7 2'57' R OW SATT? EAST LI"iE, A DISTANCE OF 24.DD FEET; THSNCB N89045'l6-E. A DISTANC. FL OF 9.17 FRET; THENCE N88056'46"E, A DISTANCE OF 141_76 F'EEJ T'HriMCr, N89045' 16"F., A DISTANCE OF 142.50 FEET; "r'1IE.NCL N89049SI-Fh A DFSTANCF, OF 142.50 FEET; TIIENCh N89"45'16"E, A 13L9'1'ANCE OF 88.25 FRf:T; THENCE S88"57'52'E, A DISTANCE ON a9A] THENCE S88054'33'E„ A DISTANCE OF 746.08 FEET, TO A MnT OF CURVATI:RR A? m rf rr.. WPST RrC1FlT-Or-w Ali• OF SNOW MESA DRIVE; TI IENCE CTV TITS ARC OF A NO\- TAN(TPh-F CURVE. TO THE LEFT, SAIn CL, ILVE HAVINO A DELTA OF 5' 19'52" AND A RADII -5 OF 54 R." FF.T.T, A DISTANCE Of 51.05 k%k:;'1', 1HE CHORI.I OF SAID CURVE BEARNO S,04^4W20"w, WITH A LENOTH OF 51.03 17RPT, TO A POWT OP NON TANG&-4CY; THENCE N64"56'47" W, A DISTANCE OF 42.84 FEET. TO A POINT OF CURVA L'U ICE; THENCE: ON TIRE ARC. OF A TANGLN T CURVE, TO THE LEFT, SAID CURVE HAVNG A DELTA OF 1528"08" ANL,%kU%D1L1S OF 100.00 IFF.FFr, A McCTANOP. OF27.00 FEET, THE CHORD OF SAM CURVE BE-ARLVG N72"40'52" W, Wi'11 J A LEV<fI'1 I OF 2& 9'2. rnr-r- TO A P40T\ T Or NON T-A GFNCY; '1 IIENL'L x86079`28"W, A OTCTANCE OF 65.24 FEET; THENCE. S89055*01"W, A DISTANCE OF 97.75 FT•.P.T; THFNCS S89045'161R. A DISTANCE Of' 36.50 FEET: 1"11ENL`L S89 45'16"W, A r3T14TANCF. OF251.75 FEET; IHENCE S3925-13... A DISTANCE OF 97_52 PORT; TWT-'KTCr 588009'21"3i, A DISTANCE OF 51.31 FEE 1: '1'IIEV C}• SR9043 16" W, A FITRTANCF OF 21.05 FEET; 97 " g i CONTA KING AN OVERALL AREA OF 17,368 SQUARE TTiRT_ ' .r% LLANO (HF&M 10/16/06) 25 4 CHAD R 1\'ASHDURN. A COLOILA 0 LIMNSED P1tOk'C::S [OVAL. aND SURYh:YVIy uP HF.Kr:RY S7ATT. THAT THF. ASOVF. I.FC•Af. T)F%rRIPTfO ' KM ATTACHED EXHIBIT WERE PREPARED LZiDER NAY RE`PON918LE CHARGE. AND ON '1'H' �p KNOW'I.HUC.H, fNFCfR\IMLON. AND RTiT.[EP, ARE CORRECT. COLC0RAD0PLSN0.37963 - FOR AND OT'THF.. RFHALF OF JR FNfiINRRMINC, I.I.0 2620E_AST PRDSPECI ROAD. SUITE 190 FORT C0111NS. CO. 80523 '1'llLS LhUAL. DESCIU1,1'1ON DOES NOT C_ONSMWTE A TIME SEARCH By 79 ENGIN£F.RD;G 10 DEIBRNM�:£ OW NTRSHIP OF THIS TRACT OR VERIFY EASENIENTS OF RECORD. iR BNGLVEERWG AA-D THE SURVEYOR OF RECORD ASSU.NMS NO RESPONSIBILITY FOR OW`NERSHW RIGHT9 C.3R rxrSTINCi fiASI:M E-NT RI CI( I'M AN 13 RRCOMMTiNT)R C ONy1 J1.TATION W ETI I AN ATTORNEY (HF&M 10/16/06) 26 x ac»L. ¢af•1fi1xw0uwp'L•�1 G1�41xY%110.ix NS[sLcry, eaxu u��.'¢mxaz kxf:ex m. �� [U76 I LOJ� f/A.YMLiYY SOYLYX SHLPS fJf! NAMVOVY SYaYGYX 9YCp5 47N fttwc f7Y/AC BASIS OF BEARINCS NOOY757"E 2111.1W a ti C I I 4 O K I rn O N n W D O U p m m 0 B x � N 9A(OW AMPA I, 1 (HFSM 10/16/06) 27 shall reimburse the constructing party for the non -constructing party's pro rata share of the actual cost of construction of such improvements within thirty (30) days following receipt of notice, invoices and lien waivers in accordance with the following: (i) AVG shall bear the entire cost of construction of improvements on and with respect to the West Easement; and (ii) Executive Park shall bear 2/3 of the actual cost and AVG shall bear 1/3 of the actual cost of construction of improvements upon and with respect to the East Easement (AVG's share of such cost shall also be deemed to include 1/3 of the actual cost of City -required improvements to Snow Mesa Drive). Notwithstanding the foregoing, AVG's share of such actual costs for permanent improvements shall not exceed $150,000.00. Notwithstanding the foregoing, in the event that Executive Park benefits from any contribution by the City, in the form of paybacks, repays, cost reimbursements, cost participations or other financial benefits, AVG shall share in the benefit of such contributions in the same proportion in which it has borne the actual cost of the improvements for which such contribution is made. Declarants agree that an owner performing any construction of improvements contemplated by this Declaration shall have a temporary non-exclusive construction easement (the "Construction Easement") over and across those portions of the other owner's property which are adjacent to the Access Easement or the Temporary Easement as are reasonably necessary to permit the owner performing the work to construct such improvements (the "Construction Easement Area"). The use of the Construction Easement Area by the owner constructing the driveway improvements and its use of the Construction Easement shall not materially interfere with the rights of the other owner relating to such other owner's use and development of its property, and the two owners hereby agree to cooperate in the scheduling and completion of such work to minimize any inconvenience such work may cause. Upon substantial completion of the driveway improvements, including, but not limited to, the approval of such construction by the City, if applicable, the owner performing such work shall restore those portions of the Construction Easement Area which are not part of the improved Access Easement or Temporary Easement to substantially the same condition they were in on the date the construction was started. This Construction Easement shall terminate automatically and shall be of no further force and effect upon the completion of the driveway improvements and the final restoration of the Construction Easement Area. (HF&M 10/16/06) 3 Neither the owner of the Executive Park Property nor the owner of the AVG Property shall at any time install, construct, maintain, operate or place any improvements or other obstructions upon any portion of the Access Easement or the Temporary Easement which would obstruct or interfere with the use of same by Declarants or their respective successors and assigns. 2. Notwithstanding any other terms or conditions of this Declaration to the contrary, the Temporary Easement shall become null and void and cease to exist, and to the extent necessary be deemed abandoned and vacated, upon the earlier of (i) completion of construction of improvements over and upon the "East Easement", or (ii) two (2) years from the date of this Declaration. -=While it is- the -intent-of- --tom n abandonment and vacation of the Temporary Easement shall be self -effectuating, each of the parties agrees to execute such further or additional documents as may be necessary to evidence the abandonment and vacation of the Temporary Easement. 3. The easements hereby created and conveyed shall be for the mutual benefit of Declarants, and their respective successors, legal representatives, assigns, employees, tenants, subtenants, licensees, guests, business invitees or any other person having an interest in the Executive Park Property or the AVG Property, respectively. 4. The owner of each property and each owner's respective successors and assigns, shall secure and maintain general public liability insurance, including insurance from claims against personal injury, death or property damage occurring in, or on or about the Access Easement or the Temporary Access of Easement, at the sole cost and expense of such owner. Each owner granted an easement herein ("Indemnifying Owner") shall indemnify, defend and hold the other owner and its officers, directors, members, managers, successors and assigns ("Protected Owner") harmless from and against any and all claims, suits, demands, actions, judgments, damages, liens, losses, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, suffered or incurred by the Protected Owner as a result of or in connection with the use, improvement or maintenance of the easements granted herein by the Indemnifying Owner and its contractors, agents, employees, servants, customers, guests, tenants, licensees or invitees, during the period of such Indemnifying Owner's ownership of its property (it being the intent of the parties that an Indemnifying Owner shall have liability under this indemnification only with respect to events occurring during such party's ownership of a property). The (HFSM 10/16/06) 4 foregoing indemnity shall not apply to the extent that any such claims, suits, demands, actions, judgments, liens, damages, losses, costs or expenses are the result of the negligence or intentional misconduct of the Protected Owner, its contractors, agents, employees, servants, customers, guests, tenants, licensees or invitees. 5. Until such time as certificates of occupancy have been issued with respect to the improvements located on both the Executive Park Property and the AVG Property, the owner of either such property shall have the right to install improvements for the purpose of use and enjoyment of the easements herein granted (as set forth in paragraph 1, above), and the installing owner shall ave t—"lump--a7rd oblgatront-= its strl eos�nd—@xper�se, tc repair and maintain all improvements constructed and installed within the Access Easement or Temporary Access Easement in such a manner as is reasonably necessary and appropriate for the proper use of vehicular and pedestrian ingress, egress and access within, over and across the Access Easement or Temporary Access Easement. Such repair and maintenance shall be completed in a commercially reasonable manner as determined by that owner from time to time. Such repair and maintenance shall include, but is not necessarily limited to, the following: general maintenance, repairs, replacements, resurfacing, repainting, repaving, restriping, cleaning, sweeping, snow removal, directional signs and other markers and bumpers, and provision for personnel or independent contractors to implement the foregoing services. Following the issuance of certificates of occupancy with respect to improvements located on both the Executive Park Property and the AVG Property, the owner of the Executive Park Property shall thereafter repair and maintain the East Easement as set forth above, but shall be entitled to reimbursement from the owner of the AVG Property for 1/3 of the expenses for repairs, improvements and other capital expenses incurred in providing such services with respect to the East Easement (but excluding any obligation on the part of the owner of the AVG Property to reimburse any portion of the cost of routine day-to-day maintenance of the East Easement). Such repair and maintenance obligations, and the obligation to reimburse same, shall also include similar repair and maintenance of any and all improvements installed, used and/or maintained to provide access to or over Snow Mesa Drive (including, without limitation, cost of maintaining and repairing all City -required improvements to Such Mesa Drive, to the extent not undertaken by the City) reimbursement shall be due within thirty (30) days after issuance of a notice of assessment of same from the owner of the Executive (HF&M 10/16/06) 5 Park Property to the owner of the AVG Property. If the owner of the AVG Property fails to pay any such assessment when due, the owner of the AVG Property shall be liable to the owner of the Executive Park Property for all unpaid assessments, plus interest accruing thereon at the rate of eighteen percent (18%) per annum until paid, together with costs of collection, including, without limitation, reasonable attorneys' fees incurred, and the owner of the Executive Park -Property shall have all other -remedies set forth in this Declaration for the collection of such expenses from the owner of the AVG Property. If the owner of the Executive Park Property shall fail to properly maintain the East Easement as hereinabove provided, the - -ewne-r o-f—the-AVlG-Pr-ope�t-y—&ha-ll have _t-i-e--rig-ht,--but —not the - obligation, to maintain and repair the East Easement upon fifteen (15) days prior written notice to the owner of the Executive Park Property of its intention to do so. Thereupon, the owner of the AVG Property may expend such monies as may be required to properly maintain the East Easement, and the owner of the Executive Park Property shall, within thirty (30) days after receipt of notice from the owner of the AVG Property, reimburse the owner of the AVG Property for 2/3 of the total expenses incurred in connection with such activities. In the event of the failure of the owner of the Executive Park Property to pay any such assessment when due, the owner of the Executive Park Property shall be liable to t e owner of the AVG Property for all unpaid assessments, p luserest accruing thereon at the rate of eighteen percent (18%) per annum until paid, together with costs of collection, including, without limitation, reasonable attorneys' fees incurred, and the owner of the AVG Property shall have all of the remedies set forth in this Declaration for the collection of such expenses from the owner of the Executive Park Property. Following the issuance of certificates of occupancy with respect to improvements located on both the Executive Park Property and the AVG Property, the owner of the AVG Property shall thereafter repair and maintain the West Easement as set forth above, at the sole cost and expense of the owner of the AVG Property. If the owner of the AVG Property shall fail to properly maintain the West Easement as hereinabove provided, the owner of the Executive Park Property shall have the right, but not the obligation, to maintain and repair the West Easement upon fifteen (15) days prior written notice to the owner of the AVG Property of its intention to do so. Thereupon, the owner of the Executive Park Property may expend such monies as may be required to (HF&M 10/16/06) 6 properly maintain the West Easement, and the owner of the AVG Property shall, within fifteen (15) days after receipt of notice from the owner of the Executive Park Property, reimburse the owner of the Executive Park Property for all of the expenses incurred in connection with such activities. In the event of the failure of the owner of the AVG Property to pay such expenses then, in such event, the owner of the Executive Park Property shall have all of the remedies set forth in this Declaration for the collection of such expenses from the owner of the AVG Property. 6. Without limiting the availability of any other remedy provided at law or in equity, or by this Declaration, in the event of failure of any party to pay any assessment hereunder when due, .the --owner of the otherpropertyshall be -entitled to a lien against the property of the nonpaying owner to secure payment of such amount, which lien may be evidenced, at the non -defaulting owner's election, by notice of lien setting forth the amount due and rate of interest accruing thereon, which lien may be recorded in the real property records of Larimer County, Colorado, until such lien is paid and discharged, and which lien may be foreclosed in the same manner as a real estate mortgage under Colorado law. 7. Notwithstanding any other provisions herein to the contrary, the owner of each respective property shall be responsible for and shall hold the other owner harmless from any costs or damages to and expense for repair of the Access Easement or Temporary Access Easement caused by extraordinary use thereof by such owner (including, without limitation, use of the Access Easement or Temporary Access Easement for ingress and egress for construction equipment or similar heavy use) and any damage to the driveway improvements caused by the negligence or willful acts of such owner, its guests or business invitees. 8. Each of the parties shall keep the Access Easement and the Temporary Access Easement free and clear of any prior liens or encumbrances, or any mechanics or materialmen liens, resulting from the activities of such party. Each of the owners of the Executive Park Property and the AVG Property agree to pay or cause to be paid directly to the appropriate taxing authorities, prior to delinquency, all real property taxes and assessments which are levied against their respective properties. 9. The easements hereby created and conveyed are non- exclusive and shall furthermore be subject to the rights of any pre-existing grants of easements appearing of record in the Larimer County, Colorado real estate records. Furthermore, in the event the City requires any easement in favor of the City to (HF&M 10116106) 7 confirm such access, or emergency access or similar right, the parties shall cooperate as reasonably necessary to grant such additional easements as may be required by the City, but this Declaration shall nevertheless remain in full force and effect as between Declarants, and their respective successors and assigns. 10. Notwithstanding any other provision of this Declaration, Executive Park shall have the right, at its sole election at any time and from time to time, to realign, reconfigure or relocate the course of the East Easement, provided only that it shall do so at its sole cost and expense, and further provided that such realignment, reconfiguration or relocation shall not unreasonably interfere with the use and enjoyment of the East Easement by AVG or its successors in interest as owners or users of the AVG Property. Notwithstanding any other provision of this Declaration, AVG shall have the right, at its sole election at any time and from time to time, to realign, reconfigure or relocate the course of the West Easement, provided only that it shall do so at its sole cost and expense, and further provided that such realignment, reconfiguration or relocation shall not unreasonably interfere with the use and enjoyment of the West Easement by Executive Park or its successors in interest as owners or users of the Executive Park Property. 11. Subject to paragraphs 2 and 10, above, the various easements hereby created and conveyed may be amended, vacated, released, abandoned or terminated in whole or in part by instrument executed by the then owners of the Executive Park Property and the AVG Property, together with the holders of any first mortgages encumbering any portions of said properties. Any such instrument must be recorded in the Office of the Clerk and Recorder of Larimer County, Colorado, to be effective, valid and binding. 12. Any notice or other communication given by either party to the other relating to this Agreement shall be in writing, and shall be delivered in person, sent by certified mail, return receipt requested, or sent by reputable overnight courier, to such other party at the respective addresses set forth below (or at such other address as may be designated from time to time by written notice given in the manner provided herein). Such notice shall, if hand delivered or personally served, be effective immediately upon receipt. If sent by certified mail, return receipt requested, such notice shall be deemed given on the third business day following deposit in the United States mail, postage (HF&M 10/16/06) 8 prepaid and properly addressed; and if delivered by overnight courier, shall be deemed effective on the first business day following deposit with such courier: If to Executive Park, to: Harmony Executive Park LLC 114 North Mason Street, Suite 4 Fort Collins, Colorado 80524 If to AVG, to: AVG Harmony, LLC 9595 Wilshire Boulevard, Suite 710 Beverly Hills, California 90212 13. This Declaration shall be governed by and construed in accordance with the laws of the State of Colorado. 14. Nothing in this Declaration shall be construed to make the parties hereto partners or joint venturers or to render either of said parties liable for the debts or obligations of the other party. 15. To the extent necessary to give effect to the terms hereof, and the declaration and dedication herein made, this Declaration shall constitute a covenant against the Executive Park Property and the AVG Property, and the Executive Park Property and the AVG Property shall hereafter be held, sold, conveyed, transferred, leased, subleased or occupied subject to the terms, conditions, covenants or limitations set forth herein, which shall run with said properties, and be binding upon all parties who have any right, title or interest in said properties, or any portion thereof. 16. The terms and provisions contained in this Declaration of Joint Access Easement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. )HF&M 10/16/06) 9