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HomeMy WebLinkAboutRAINTREE COMMERCIAL PUD - Filed OA-OTHER AGREEMENTS - 2008-06-06M Pacific Guaranty Retail Development Corporation 14180 Dallas Parkway, Suite 400 Dallas, Texas 75240 3279/049 February 19, 1986 City of Fort Collins 300 Laporte Avenue Fort Collins, Colorado 80522 Attention: Stephen J. Roy, Esq. Re: Proposed construction of storm drainage system servicing Raintree P.U.D. by Pacific Guaranty Retail Development Corporation Gentlemen: This letter of agreement will evidence our understanding with regard to certain construction to be undertaken by Pacific Guaranty Retail Development Corporation ("Pacific") involving the installation of a storm drainage system (the "Work") affecting property owned by Pacific within the Raintree Planned Unit Development (the "Raintree Property") and property owned by the City of Fort Collins, Colorado (the "City") which is currently being used as a park (the "Park Property"). In particular, Pacific has requested that the City permit Pacific to commence that portion of the Work which affects the Raintree Property immediately upon execution of this letter, and to commence that portion of the Work which affects the Park Property upon the effective date of City approval for an easement across the Park Property as may be necessary for the Work (the "Easement"). The Easement shall be in a form satisfactory to the City. It is anticipated that the request for the Easement will be considered for approval on March 4, 1986 and that, subject to approval by the City Council and the satisfaction of certain post -approval requirements pertaining to public notice and the public's right to object to the actions so taken, the Easement will be effective on March 15, 1986. In consideration of the exchange of mutual promises recited below and other good and valuable consideration, the parties agree as follows: aK2us2 Fco3gg ) ss. County of Larimer ) The above anc foregoing t was acknowledged befe t�is� r men day of n1980 by Enterprises, a Colorado as partner of Realty Brokers ASSOCIATES, a Colorado general as general partner of general partnership. ess my hand and official seal. ammission Expires: otarry P M Public n % STATE STATE OF COLORADO ss. County of Larimer ) The above and foregoing agreement was acknowledged be- fore me this %ic, day of Or,. ;:.; 1980 by Louis F. Swift, as President, and attested to by William C. Stover, as Secretary, of THE NEW MERCER DITCH COMPANY, a Colorado mutual irrigation corporation. s my hand and official seal. emission Expires: i!"-c16_. Notaryr Public 7- 4U rbo j 7 u 392794 r )s 3:Ofl Y�CeJ (J� 3�VCOU!dTy OF LA11"4r-R STATE OF COLORADO ' A G R E E M E N T THIS AGREEMENT made and entered into this day of 1980 by and between RAINTREE ASSOCIATES, a Colorado general partnership, hereinafter designated as "applicant", and THE NEW MERCER DITCH COMPANY, a Colorado mutual irrigation corporation, hereinafter designated as "ditch company." PROJECT Disposal of storm water drainage from Raintree Planned Unit Development on 37.39 acres located at or near the NW corner of Shields Street and Drake Road, in the SE 1/4 of Section 22, Township 7 North, Range 69 West of the 6th P.M. WITNESSETH: WHEREAS, applicant is the developer of a planned unit development as set forth above, and ditch company is the owner and operator of an irrigation canal abutting upon said development, mostly on the northerly side thereof, and both parties are desirous of having said development designed in such a manner as to prevent drainage water from entering into the irrigation canal; and WHEREAS, the parties hereto have entered into a previous !::..._ landscape and design agreement recognizing the right-of-way of the ditch company's canal and maintenance and access thereto, and such agreement between the parties hereto, dated the 31st day Of n,.r.,r,e. , 1980 and recorded in Book 2092 at page 390 of the Larimer County Records, is specifically incorporated into this agreement for interpretive purposes; and WHEREAS, applicant has had a storm water drainage report prepared by Taranto, Stanton & Tagge, Consulting Engineers, dated April, 1980, consisting of four (4) pages and numerous attachments. Reference to that report is hereby made, and by this reference the report is incorporated in this agreement. This agreement is - intended to provide for implementation of some of the recommendations ''� .3K2093 POO 5 4 contained in such report; and WHEREAS, attached hereto as Exhibit A is a plat of Raintree Planned Unit Development, dated May 23, 1980, consisting of Sheets 1, 2 and 4 of four sheets and Sheets 25, 26, 27 and 33 of 34 sheets, approved by officials of the City of Fort Collins, Colorado on May 27, 1980, which exhibit is incorporated herein as though fully set out herein; and WHEREAS, the above -listed exhibit items and report specifically set forth all of the plans, specifications and terms of this grant and shall in no way be modified or changed by any subsequent or related plans or materials not included herein unless agreed to in writing by the parties hereto; and WHEREAS, ditch company is willing to grant to applicant the right to construct the necessary facilities for such storm drainage plan as set forth in Exhibit A upon terms and conditions hereinafter set forth; and WHEREAS, one or more homeowners associations will be formed by applicant, and upon completion thereof in accordance with said Exhibit A and approval by the ditch company, such homeowners association(s) will assume the future maintenance of the project. NOW, THEREFORE, in consideration of the premises and the terms of the within agreement, it is agreed as follows; 1. That Exhibit A and the preamble above are an essential part of this agreement and the statements therein binding upon the parties to this agreement. 2. Ditch company grants unto applicant the right to construct said storm water drainage facilities under the existing ditch of the ditch company and further grants unto applicant and eventually the homeowners association(s) the reasonable right of ingress and egress to parts of its ditch as shall be reasonably necessary for the exercise of the rights granted herein. 3. Applicant has paid to ditch company a total permit fee of Seven Hundred and No/100 ($700.00) Dollars for this grant. 4. Applicant will, upon the completion of the project, furnish to ditch company and the homeowners association(s) an -2- W 0 9 3 PG0542 "as built" exhibit further supplementing in final form the work described in the attached exhibit. APPLICANT SHALL ALSO PAY ditch company's reasonable expenses incurred in having its engineers make a physical examination of the completed project to determine its compliance with the plans, specifications and modifications. The grant by the ditch company of rights hereunder shall not be effective and binding upon the ditch company until satisfactory completion of this inspection and approval by the engineers and payment of the additional reasonable charges of the engineers for making such inspection, including travel to and from the project from the engineers' Denver office. S. The construction herein contemplated shall be in strict accordance with the plans set forth in the attached exhibit. Any excavation or changes in the present ditch where concrete is not provided for, shall be backfilled, compacted and stabilized to the entire satisfaction of the ditch company. All compaction for dikes shall be done at ninety-five (95%) percent standard Proctor density. The dikes shall be in conformance with the plans for construction of the detention pond. Said work shall be done only after timely notification given to the superintendent or other designated agents of the ditch company. 6. All construction shall be commenced and completed at such times as shall not interfere with the regular flow of water of the ditch company during the irrigation season. 7. In addition to the inspection called for in paragraph "6." above, upon completion of the project, the applicant shall promptly notify the ditch company and the homeowners association(s); and the parties shall jointly inspect the project. If there are any deficiencies in the work of the applicant or other variations from the plans set forth in the exhibit, the applicant shall forthwith remedy the same; and in doing so, the applicant shall meet all reasonable requirements of the ditch company for the protection of its ditch and surrounding property. B. Applicant, on behalf of itself and its successors and assigns, waives all seepage or overflow damage from said ditch -3- %L rcn 5 y on the lands of applicant except that which may be caused by the negligence of the ditch company, and agrees that such waiver of liability shall be a covenant running with the land and included in deeds to any subsequent grantees of applicant's land. 9. The project shall be without cost to the ditch company and the applicant shall hereby indemnify and forever hold the ditch company harmless from liability for damages caused by the project. 10. Ditch company shall have full power to operate and maintain its ditch as if this agreement had not been made; and any expenses caused thereby to the applicant shall not be chargeable to the ditch company. 11. In the event either of the parties hereto shall be in default in any of their covenants herein so as to require the party not in default to retain counsel to attempt to enforce the covenants by negotiations or otherwise, or to commence legal or equitable action against the defaulting party, the defaulting party agrees to pay all reasonable expenses incurred for such enforcement and/or litigation by the enforcing party, including but not limited to docket fees, depositions and reasonable attorney's fees. THIS AGREEMENT shall extend to and be binding upon the heirs, successors and assigns of the respective parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove written. RAINTREE ASSO T S, a Colorado nera partnership, By: REALT BRO% RS ENTERPRISES, a Col rado artn rsh g�j ene al p rtne �^�7 By: ✓ THE NEW MERCER DITCH COMP&Y, a CIo lorad mut a -i-ft ti 4corporation, 'Lou s F, Swi t, pres ept` -4- 2U3 PG 5 y U STATE OF COLORADO as. County of Larlmer ) The above and foregoing agreement was acknowledged before me this '}77rday Of -i<<_,_ u_ - , 1980 by Dan E. King, as general Dartner Realty Rro ers .nterprises, a Colorado partnership, as general partner of RAINTREE ASSOCIATES, a Colorado genera] Y,'009 my hand and official seal. ••lriieission Expires: •i 7__:. ;� _ ^,^ •�,, Notary Public -- STAi'S'"COLORADO ) ) as. County of Larimer ) The above and foregoing agreement was acknowledged before me this L2LL day of +,:: „_ , 1980 by Louis F. Swift, as President, and attested to bLi W lliam C. Stover, as. Secretary, ofrTHE -NEW -MERCER DITCH COMPANY, a Colorado mutual irrigation my hand and official seal. C4tdai8aion Expires: if-y Notary Pu is -5- A G R E E M E N T THIS AGREEMENT is made and entered into this c7f 7 { day of February, 1986, by and between RAINTREE ASSOCIATES, a partnership, hereinafter referred to as "applicant", and THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY a Colorado mutual irrigation company, hereinafter referred to as "ditch company." PROJECT Installation of a storm sewer line as same crosses ditch company's ditch, in the City of Fort Collins, County of Larimer, State of Colorado. WITNESSETH: WHEREAS, the ditch company is the owner of an irrigation ditch and the right-of-aav therefor through land located in Section 22, Township 7 North, Range 69 West of the 6th Principal Meridian, in the City of Fort Collins, County of Larimer, State of Colorado: Commencing at the Southeast corner of said Section 22 and considering the East line of the Southeast Quarter of said _ Section 22 to bear North 00"21' West with all bearings con- tained herein relative thereto; thence North 50026' West, 1,678 feet to the approximate centerline of said crossing; and WHEREAS, applicant desires to construct and install a thirty inch (30") storm sewer pipe under ditch company's ditch at the location above described and further detailed in the exhibits - attached hereto and made a part hereof by reference; and WHEREAS, attached hereto as Exhibit "A", dated February 12, 1986, (consisting of two (2) sheets) are detailed plans of such construction showing the location of such 30" storm sewer pipe as same will cross the ditch of ditch company and the manner in which such pipe will be constructed and installed. WHEREAS, said Exhibit "A" sets forth all of the plane and specifications, and the terms of this grant shall be in no way modified or changed by any subsequent or related plans or materials not included therein; and WHEREAS, the ditch company is willing to grant to applicant this right upon the terms and conditions hereinafter expressed; NOW, THEREFORE, in consideration of the premises and the terms of the within agreement, it is agreed as follows: 1. The ditch company grants unto applicant the right to construct, install and maintain the above described storm sewer line as shown in Exhibit "A", under the existing ditch of ditch company, and further grants unto the applicant the right for ingress and egress to a part of its ditch as shall be reasonable and necessary for the exercise of the rights granted herein. 2. Applicant will, upon the completion of the project, furnish to ditch company an "as built" exhibit further supplementing in final form the work described in Exhibit "A." 3. Applicant has paid to ditch company an application fee in the amount of Three Hundred Dollars ($300.00) for the grant of this right-of-way. This shall be determined a minimum initial payment to cover preliminary expenses, such as legal work, time and car use of superintendent and/or directors; review of the application; and other preliminary matters. In addition thereto, applicant agrees to pay such additional reasonable and necessary expenses of the ditch company for legal services and inspection of the works by the ditch company's President, engineers and/or superintendent until final approval of the project. 4. The construction herein contemplated shall be in strict accordance with the final set of plans with modifications set forth in Exhibit "A". Any excavations or changes in the present ditch shall be backfilled, compacted and stabilized to the entire satisfaction of the ditch company. All compaction for dikes shall be done to ninety-five (95%) percent standard Proctor den- sity. The dikes shall be in conformance with the plans for construction of the storm sewer line. Said work shall further be done under the supervision of the superintendent or other designated agents of the ditch company. -2- 5. All construction shall be commenced and completed prior to April 15, 1986 and applicant agrees said construction shall in no way interupt or impede the flow of water. 6. Upon the completionof the project, the applicant shall promptly notify the ditch company, and the parties shall jointly inspect the ditch at the place of construction. If there are any deficiencies in the work of the applicant or any variations from the plans set forth in Exhibit "A", the applicant shall forthwith remedy the same and in so doing, the applicant shall meet all reasonable requirements of the ditch company for the protection of the ditch and surrounding property. 7. It is the intent of this agreement that applicant exercise care in the construction of said crossing. Accordingly, it is hereby recognized by and between the parties hereto that the ditch company is in no way responsible for any damages caused by such construction or structure. S. The project shall be without cost to the ditch company, and the applicant shall hereby indemnify and forever hold the ditch company harmless for liability for damages caused by the project. 9. The ditch company shall have full power to operate, main- tian, alter, enlarge or relocate its ditch as if this agreement had not been made, and any expenses caused thereby to the applicant shall not be chargeable to the ditch company. 10. In the event either the applicant or the ditch company shall be in default in any of their covenants herein so as to require the party not in default to retain counsel to attempt to enforce the covenants by negotiations or otherwise, or to commence legal or equitable action against the defaulting party, the defaulting party agrees to pay all reasonable expenses of said litigation incurred by the enforcing party, including but not limited to docket fees, depositions and reasonable attorney's fees. 11. Applicant agrees to record this agreement or an executed copy thereof, at its own expense, with the Clerk and Recorder of -3- Larimer County, Colorado and furnish evidence of such recording to the ditch company. THIS AGREEMENT shall extend to and be binding upon the heirs, successors and assigns of the respective parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove written. RAINTREE ASSOCIATES, a Colorado Partnership By Dan E. King STATE OF COLORADO ) as. County of Larimer ) The above and foregoing instrument was acknowledged before me this _ day of February, 1986, by Dan E. King as of Raintree Associates, a Colorado Partnership. Witness my hand and official seal. My Commission Expires: Notary Public (SEAL1 THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY, a Colorado mutual irrigation company, By: (S) J n L. Strachan, President ATTEST: Q� fftith W. Ewegen, Wit. a—E cretary STATE OF COLORADO ) ) as. County of Larimer ) The above and foregoing agreement was acknowledged before me thigZF�ay of February,. 1986, by John L. Strachan, as President, and attested to by Judith W. Ewegen, as Asst. Secretary, of THE LARIMER COUNTY CANAL J) TRRIGATING COMPANY, a Colorado mutual irri- gation company. Witness my hand and official seal. O My Commission Expires: ( SEAL,, No ry I Ic -4- City of Fort Collin, February 19, 1986 Page 2 The City agrees to permit Pacific to commence the Work and Pacific agrees to undertake said Work, subject to the following terms and conditions: 1. Pacific agrees to indemnify and hold harmless the City from all liability, loss, cost and expense arising in connection with Pacific's proceeding to commence the Work prior to the approval by the City of the plans and specifications therefor. 2. The parties acknowledge that the Work must be performed according to plans approved by the City and that; (a) the Work proposed to be undertaken by Pacific is not according to any approved set of plans, and (b) such Work is being undertaken by Pacific with full knowledge that the plans ultimately approved by the City may require different or additional Work to be performed by Pacific and that any such additional different Work be at the City's discretion and at no expense to the City. 3. The City agrees to review the progress of the Work, but it is agreed and acknowledged that such review shall not constitute approval of the Work. 4. As a condition precedent to the City's approval of the Work, and prior to the commencement of any Work on City -owned property, the consent of the City Council to the grant of the Easement must be obtained. 5. As a condition precedent to the City's approval of the Work, Pacific must submit reasonable evidence of approval of the plans and specifications therefor by the New Mercer Canal Company and Larimer County #2 Canal Company, which currently have the rights to the use of an existing drainage ditch which crosses the proposed line of the Work. 6. Pacific, its employees, agents, or contractors agree not to trespass across the Park Property prior to the effective date of the City's grant of the Easement. 7. In consideration for the City's granting the Easement, and prior to obtaining the same, Pacific agrees to cause to be paid to the City the amount of $2,150.00. Exhibit "A", Page 1 i Ilia STORMWATER DETENTION FACILITIES FOR RAINTREE P.U.D. OVERALL DRAINAGE PLAN�',`- 3• SCALE to. 20' / / Exhit- "A", Page 2 REVIEWED AND APPROVED By, CITY OF FORT COLLINS DATE E PARKS S RECREATION DEPT. awwn L6. � cnecxto 'A / / EGA{ • Y� Ey" Yf4GN(p RAINTREE // ,. P.U.D. •4� // j��/% W_ W i ♦ ./ �/ l W'� / // G/ /.. i _j LL LL = Z L— -* --- - - - - - - -- r Z Q w F' J — a _ W ? W —_- ---- -- am y LL _-- __ _— - - r• --_ _ a. F- O N -1:142 - O e _ G'N•wH tH�.M• /.10' p. -4 oas v �._ _ oa e. nes Na� ttls LINE 3 f.� 7 City of Fort Collin. February 19, 1986 %10 r/ Page 3 If you are in agreement with the foregoing, please evidence the same by your execution of this letter in the space provided below. I would appreciate your transmitting to me two executed counterparts of this letter for my files. Very truly yours, Jim Tracy Regional Manager ACKNOWLEDGED AND AGREED TO this d4 jL� day of February, 1986 CITY OF FORT COLLINS, COLORADO 8y City Pranager ATTEST: UA City Clerk APPROV AS TO FORM: it or y C' 1ty Eif4jineer vn c u a c r u ti tl 3 9 Z 1 7 6 1900 DF^ 16 PY 12: 03 COUNTY OF LARIMER STATE OF COLORADO A G R E E M E N T yVTHIS AGREEMENT made and entered into this day of 1980, by and between RAINTREE ASSOCIATES, a Colorado general partnership, hereinafter designated as the "applicant", and THE NEW MERCER DITCH COMPANY, a Colorado mutual irrigation corporation, hereinafter designated as "ditch company". PROJECT The subdivision and construction of a planned unit devel- opment in the SE 1/4 of the Se 1/4 of Section 22, Township 7 North, Range 69 West of the 6th P.M„ now in the City of Fort Collins, Larimer County, Colorado, known as RAINTREE P.U.D., consisting of areas A, B, C and D. WITNESSETH WHEREAS, the ditch company is the owner of an irrigation ditch and the right-of-way therefore; and applicant desires to develop its planned unit development known as RAINTREE P.U.O. in close proximity to said right-of-way, and in con- nection therewith, has submitted plans to ditch company which meet with the approval of ditch company except as hereinafter set forth; and WHEREAS, attached hereto and incorporated herein as Exhibit A is the final Landscape Architect Design of Raintree P.U.D., consisting of three (3) sheets of drawings and lay- outs, prepared by ZVFK Architects, dated April 20, 1980 and revised June 30, 1980, and Exhibit 8, consisting of a one - page list of shrub and other plants to be used in the project; and -i f�: eK2U92 POO 3 9 I WHEREAS, the above exhibits specifically set forth all of the plans and specifications for the landscaping of this P.U.D. and which in no way shall be modified or changed by any subsequent plans or materials not included herein unless agreed to between the parties hereto; and WHEREAS, the ditch company is willing to accept this landscaping plan upon terms and conditions hereinafter set forth; and WHEREAS, one or more homeowners associations will be formed by applicant, and upon completion of the landscaping, in accordance with Exhibit A, and approval by the ditch company, such homeowners association or associations, as the successors in interest of applicant, will assume all the obligations for the future maintenance of the architectural plan and the terms and conditions of this agreement. NOW, THEREFORE, in consideration of the premises and for adequate consideration and exchange of promises, and upon the terms of the within agreement, it is agreed as follows: 1. That ail of the exhibits and statements above are an essential part of this agreement and the recitations thereof binding upon the parties to this agreement. 2. Ditch company grants unto applicant the right to construct the landscape architecture, streets and install the plantings provided in strict accordance with the reci- tations herein and the exhibits. Further, ditch company grants unto applicant the right of ingress and egress over ditch company's right-of-way as shall be reasonable and necessary for the furtherance of this project. 3. Applicant recognizes the right-of-way for the ditch and of the ditch company's right to maintain the ditch from the roadways and streets constructed pursuant to this plan and in the development of this P.U.D. project. -2- ON2092 Pco 3 9 7 4. Applicant agrees that no plants or shrubbery planted by applicant upon the ditch banks shall at any time exceed thirty (30") inches in heighth, and if same should grow higher, applicant will assume all the duties of trimming and/or removal, if requested by ditch company, as shall be necessary to pre- vent such growth over a heighth of thirty (30") inches. Further, applicant acknowledges the right of ditch company, if reasonably necessary for the performance of maintenance or other ditch functions, to drive over, remove or destroy cer- tain of the shrubbery, and applicant, its successors and assigns, agrees that if same is replaced, it will be done by applicant without any claim against ditch company. 5. Applicant, for itself, its successors and assigns, agrees that no parking of vehicles or other obstructions shall be permitted along the ditch or street on the ditch right-of- way; and in the event it should become necessary for ditch company to remove vehicles or other obstructions, the cost thereof to the ditch company shall be borne by applicant, its successors and assigns. 6. In the event the ditch company shall incur additional expenses for legal and engineering services reasonably nec- essary in connection with this project, applicant agrees to reimburse ditch company for such expenses. 1. Applicant will, upon the completion of the project, furnish to ditch company and the homeowners association or associations if then in existence, an "as built exhibit" further explaining in final form the work described in the attached exhibits. The grant by the ditch company of rights hereunder shall not be effective and binding upon the ditch company until satisfactory completion of an inspection and approval by the ditch company and the reimbursement to the ditch company of any of its reasonable charges incurred in such inspection. -3- BQ092 PC 3 r-I 8. The construction herein contemplated shall be in strict accordance with the plans set forth in the attach ex- hibits. All construction shall be commenced and completed at such times as shall not interfere with the maintenance work necessary by the ditch company. 9. The applicant agrees to convey to the ditch company a non-exclusive easement 20 feet in width along the ditch bank and over and across the private streets and parking areas within Raintree P.U.D. as reasonably necessary to pro- vide adequate vehicular access to the ditch for ditch purposes, Maintenance of the ditch may, on occasion, require that silt or other debris be removed from the ditch and deposited along the banks of the ditch or on the streets and common areas of Raintree P.U.D. bordering the ditch. The ditch company agrees that it will not deposit silt or other debris on the streets and common areas of Raintree P.U.D. except as reasonably necessary for the proper maintenance of the ditch. Except in an emergency, the ditch company shall give reasonable notice to the Raintree P.U.D. Homeowners Association of its intent to clean the ditch and deposit silt or other debris on the streets, parking areas or common areas of Raintree P.U.D. to provide the Homeowners Association adequate time to prepare to remove the silt or other debris from the private streets, parking areas and common areas as the ditch is cleaned. The Homeowners Association shall also have the right to re- move debris from the banks of the ditch, if such debris would adversely affect the health and safety of the residents of Raintree P.U.D. or if such debris would create an eyesore. Nothing herein contained shall be construed to create any obligation or responsibility in the applicant or the Home- owners Association to clean or maintain the ditch. -4- BK2092 PG0394 10. Applicant, on behalf of itself and its successors and assigns, waives all seepage or overflow damage from said ditch on the lands of applicant and agrees that such waiver of liability shall be a covenant running with the land. 11. This agreement is strictly limited to the matters contained herein and does not directly or indirectly give to applicant any rights concerning storm drainage or easements over or under ditch company's ditch. 12. The ditch company shall continue to be liable for any damage resulting from its own negligence or intentional acts or those of its officers, directors, agents or employees. The applicant shall indemnify and hold the ditch company harmless from liability for damage to the ditch (other than ordinary wear and tear) caused by persons or entities other than the ditch company, its officers, directors, agents or employees. Upon the establishment of the Homeowners Association, the recording of the Protective Covenants for Raintree P.U.D. and the assumption of the obligations, responsibilities and liabilities of the applicant under this Agreement by the Homeowners Association, the applicant shall be relieved of all obligations, responsibilities and liabilities under this Agreement, except to the extent that the applicant is the owner of one (1) or more lots within the Raintree P.U.D. and, therefore, a member of the Homeowners Association. The Homeowners Association shall purchase and maintain insurance in an amount and with a company reasonably acceptable to the ditch company to cover its obligations, responsibilities and liabilities under this Agreement and furnish a copy of such policy to the ditch company. The Homeowners Association shall be solely responsible for the payment of any premiums -5- ah2092 PGO 3 9 9 for such insurance and the cost of such premiums shall be assessed against the owners of lots within Raintree P.U.D. as other common expenses. The Homeowners Association's liability under this Agreement for damages covered by such policy shall be limited to the amount of the policy, pro- vided the amount of the policy has been approved by the ditch company. 13. The ditch company shall have full power to operate and maintain its ditch as if this agreement had not been made, and any expenses hereby caused to the applicant shall not be chargeable to the ditch company. 14. In the event any of the parties hereto shall be in default in any of their covenants herein so as to require the party not in default to retain counsel to attempt to enforce the covenants by negotiations or otherwise, or to commence legal or equitable action against the defaulting party, the defaulting party agrees to pay all reasonable expenses in- curred for such enforcement and/or litigation by the enforcing party, including but not limited to docket fees, depositions and reasonable attorney's fees. THIS AGREEMENT shall extend to and be binding upon the heirs, successors and assigns of the respective parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove written. RAINTREE 4adopartn TES, a Coloradanal partnership, REALTYS ENTERPRISE , By:a Colo 1 Gener rtner By: THE NE4 MERCER DITCH MPA a_C ado_mu ua i igat10n corporatior 8 . 1 L s wi t, es ent -6-