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HomeMy WebLinkAboutCHOICE CENTER - Filed OA-OTHER AGREEMENTS - 2011-11-10RECEPTION#: 20110062800, 10/14/2011 at 11:33:55 AM, 1 OF 19, R $101.00 TD Pgs: 0 Scott Doyle, Larimer County, CO TERMINATION OF AGREEMENT AND VACATION OF ROADWAY EASEMENT THIS AGREEMENT is made and entered into this �kday of October, 2011, by and among JOHNSON INVESTMENTS, INC., a Colorado corporation ("Johnson Investments"); KELLY C. BROWN ("Brown"); HIGHLAND PROPERTIES 711 LLC, a Colorado limited liability company ("Highland Properties"); IMAGO LAFAYETTE, LLC, a Colorado limited liability company ("Imago Lafayette"); HALLE PROPERTIES, L•.L.C., an Arizona limited liability company ("Halle"); and PJM7, LLC, a Colorado limited liability company ("PJM7"). RECITALS: A. Herbert T. Lowe and Roger T. Lowe, doing business as United Rent Alls Center ("First Parties"); and James Johnson and Son, a Colorado corporation ("Second Party") made and entered into that certain Agreement dated April 13, 1965 and recorded July 9, 1965 in Book 1296 at Page 43 of the Larimer County, Colorado records ("the Agreement"). B. The Agreement defines the location, nature and use of a common driveway or common roadway between property owned by the First Parties and property owned by the Second Party ("the Common Driveway"). C. Brown and Highland Properties are successors in interest to the First Parties and Johnson Investments, Halle and PJM7 are successors in interest to the Second Party. D. Highland Properties is the owner of the real property legally described on Exhibit A attached hereto and incorporated herein by reference ("the Highland Properties Lot"). E. Brown is the owner of the real property legally described on Exhibit B attached hereto and incorporated herein by this reference ("the Brown Lots"). F. Johnson Investments is the owner of the property described on Exhibit C attached hereto and incorporated herein by reference ("the Johnson Investments Property"). G. Halle is the owner of the real property legally described on Exhibit D attached hereto and incorporated herein by reference ("the Halle Property"). STATE OF COLORADO ) )ss: COUNTY OF LARIIVIER ) The foregoing instrument was acknowledged before me this 4 day of October, 2011, by Cheryl Olson as Vice President of JOHNSON INVESTMENTS, INC., a Colorado corporation. Witness my hand and official eal. My Commission Expires: l C�C74_ Ic STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 2011, by KELLY C. BROWN. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF COLORADO t L. so**, )TA (P�9 . (/BLX0 QpO ' ,o� CoVW day of October, )ss: COUNTY OF EVOU�j� The foregoing instrument was acknowledged before me this day of October, 2011, by ColYo t V.. QAr + as 0oewxhrja "Uav of HIGHLAND PROPERTIES 711 LLC, a Colorado limited liability comp y W itnes My Co 4 GRANTOR: THE CITY OF FORT COLLINS, COLORADO a Municipal Corporation Date: By. ATTEST: City Clerk APPROVED AS TO FORM: Senior Assistant City Attorney STATE OF COLORADO ) ) ss COUNTY OF LARIMER ) Karen Weitkunat, Mayor The foregoing instrument was acknowledged before me this day of 2011, by Karen Weitkunat as Mayor and as City Clerk of the City of Fort Collins. Witness my hand and official seal. My Commission expires: Notary Public Date: QC Tebt t is 2 011 ATTEST: qftv#�= STATE OF ALABAMA ) ) ss COUNTY OF GRANTEE: CAPSTONE DEVELOPMENT CORPORATION, An Alabama orporation By: L Jon s, E ecutive Vice President The foregoing instrument was acknowledged before me this 10tl— day of W-, 2011, by L. Jeff Jones, as Executive Vice President andid iso-as .41 Zc%m / Of Capstone Development Corporation. /1�m; `-- Witness my hand and official seal. My Commission expires: RblAR1 PURLICRkrxOPAWAMAATLAIM MYCOMMISSION EXPIRES: AUGUST21, 2012 @0M WbT=U1X= rPo1 X UNURVAUTM z Notary Public �,\0\O\E ROQ/���i�� NOTA,9 y pUBUC 9 '• %��Q'q,� STATE EXHIBIT "C" LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THOSE PARCELS OF RECORD AT RECEPTION NUMBER 0089010788 AND RECEPTION NUMBER 0088007557, RECORDS OF THE RECORDER'S OFFICE, LARIMIER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, CALCULATED TO BEAR S00'02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHWEST CORNER OF LOT 2 OF THE SPRING COURT SUBDIVISION, THENCE S89'36'51"E ALONG THE SOUTH LINE OF SAID LOT 2 A DISTANCE OF 227.92 FEET TO THE POINT OF BEGINNING; THENCE S89'36'51'E CONTINUING ALONG SAID SOUTH LINE OF LOT 2 A DISTANCE OF 253.06 FEET; THENCE LEAVING SAID SOUTH LINE OF LOT 2 THE FOLLOWING SEVENTEEN (17) COURSES ACROSS SAID PARCELS OF RECORD AT RECEPTION NUMBER 0089010788 AND RECEPTION NUMBER 0088007557: I. S00°23'09"W A DISTANCE OF 13.21 FEET; 2. S46'01'22'E A DISTANCE OF 69.83 FEET; 3. S13001'22"E A DISTANCE OF 26.82 FEET; 4. S78'58'38'W A DISTANCE OF 25.00 FEET; 5. N13*01'22"W A DISTANCE OF 18.42 FEET; 6. N46'01'22 W A DISTANCE OF 78.84 FEET; 7. N89'36'51"W A DISTANCE OF 9.04 FEET; 8. S36°07'28W A DISTANCE OF 37.57 FEET; 9. N58057'38"W A DISTANCE OF 11.12 FEET; 10. N66606'39W A DISTANCE OF 17.52 FEET: 11- S00'23'09'W A DISTANCE OF 20.40 FEET; 12. N74'27'38"W A DISTANCE OF 31.08 FEET; 13. N00'23'09"E A DISTANCE OF 22.79 FEET; 14. N78'04'45"W A DISTANCE OF 6.04 FEET; 15. N79'22'12"W A DISTANCE OF 34.36 FEET; 16, N89°36'51"W A DISTANCE OF 83.38 FEET; 17. N35400'00'W A DISTANCE OF 24.53 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 9,342 SQUARE FEET, OR 0.214 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. PAGE 1 OF 3 N:WCB0254kCadd'SurveylLegals%PR16tAEM04-REV t .dac EXHIBIT "C" I, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 2OF3 N:\FCB02541Cadd�SurveyV-egalslPRMAEM04 •REV1.doc EXHIBIT "C" CV)cn I M N ., .. �ia rnm ox w a Ofm r tn x p W Z< ��- a: U Z n� \ ^ _ 0) ' 11 cJ- 7 a09-o Z oriza.no �ctZa.nZIr .� Z�<N� S « WMU— CCA* Z W zu.<M. i Z2 J OW = ` BASIS OF BEARINGS s p co p < _ 00.02'16" E 2646.97' CL q� E. UNE NE 1 4 SEC. 23 V W a'3 d COLLEGE AVENUE (HIGHWAY 287) S01 62 h9'E W ° _O 1-5 0 H g Q _ JN u W N00 �4 -a COacO >JI I 00 l h �' to 0 o- 00 O --� N L IL I N I < O:z Z w �a n m a o' i. CZ ozNv� 1- '. �p0� ��Zm to 00 GS O0 m Q mQ 0 4zto J J 0 a Ei a � in < J W a. a I .- m N a a. V) M o ° W I Z 00 rn r� rn M 1-- J 00 to u7 CO 0C)0 na rri� N U.-M OM N � I a Z C5 CT1 e O�tsQO ou O w zo it: wo J o f w ZU O.H d "L, z toM 0. ZV - M rn O U 0. 0. w (0 O �t z am co V) z MN <� Z ,+ m 8O N U e o «- QI�o- a 0�05 o-?m NN NN �^ �`' E N M N N N st p N d r) w a s o o �o < w w� i 0¢0 tj tN r co' Q a« _ $ Mai�joOmOiM�r NMN�M m� - a CA 100 N �-- z< W =a- •- coN� On °= �M w 3w1,,�3333333w3�N° W N La co �NNNN 000001OMp� � �� s � Li w �'tZ2� ��wJM^•-.-•-ca�.r�tDlyN}yp�V C7 N N M M� « MI�Md�cV ono yc QY z�aaar- in'✓ Opm 00 m N�jN9p�-jOr,'�' 9IPP0 0110� ztn s R0OMMtooltococoo f�Nf- 40 d aUcnU� M-O .-.-dt00MtnCDNZZZZ ZZf�22 �_ o rnmV1 ZLi z N N] 4 to tD f`00 01 •- .- t cj EASEMENT DEED AND AGREEMENT Sheet Flow Easement at Creekside Park THIS EASEMENT DEED AND AGREEMENT ("Deed") is made and entered into this day of , 2011, (the "Effective Date"), by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, ("Grantor"), and CAPSTONE DEVELOPMENT CORPORATION, an Alabama Corporation ("Grantee"). 1. Grantor's Property. Grantor is the owner of that certain parcel of real property located in Larimer County, Colorado, which is legally described on Exhibit A, consisting of one page, attached to and made a part of this Deed ("Grantor's Property"). 2. Grantee's Property. Grantee is intending to purchase that certain parcel of real property located adjacent to the Grantor's Property in Larimer County, Colorado, which is legally described on Exhibit B, consisting of two pages, attached to and made a part of this Deed ("Grantee's Property). This easement is appurtenant to Grantee's Property. 3. Grant of Easement — Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Three Thousand Two Hundred Fifty Eight Dollars ($3,258.00), and other good and valuable consideration, the receipt and adequacy of which Grantor acknowledges, the Grantor hereby grants, sells and conveys to the Grantee, its successors and assigns, a perpetual, non-exclusive sheet flow easement (the "Easement") on, over, and across Grantor's Property as described more fully on Exhibit C, consisting of two pages, attached to and made a part of this Deed (the "Easement Area"), to benefit Grantee's Property for purposes of the Choice Center development project, planning case number FDP110002 ("Project"), subject to the conditions and restrictions set forth below. 4. Effective Date. This Easement will not be effective until and unless the Grantee (or Grantee's approved successor in interest) acquires title to the Grantee's Property. If this Easement and the Grantee's Property are not held by the same owner within one year of the date of this Deed, or if construction of the Project is not commenced within one year of the date of this Deed, this Easement will terminate and be of no further force and effect. 5. Purpose and Uses of Easement. Grantee may use the Easement to direct storm water flows from Grantee's Property over and across the Easement Area, to the extent that such storm water flows exceed the design capacity of the water containment structures to be constructed on the Grantee's Property in accordance with the Project Development Agreement and any other applicable land development approvals from the City of Fort Collins related to the Project on Grantee's Property. This Easement does not include the right of Grantee to construct any improvements on or otherwise modify Grantor's Property. 6. Additional Rights of Grantee. Grantor further grants to the Grantee: (a) the right of ingress to and egress from the Easement Area over and across Grantor's Property by means of any roads and lanes thereon; 7. Grantor's Rights in Easement Area. (a) Grantor reserves the right to use the Easement Area for purposes that will not interfere with Grantee's full enjoyment of the rights granted herein, including but not limited to Grantor's right to operate or allow others to operate utility improvements within the Easement Area. (b) Grantor agrees not to install permanent buildings over the Easement Area, However, Grantor may plant or maintain permanent trees, shrubs or other plant material in the Easement Area. Grantor may install or utilize signs or paths over the Easement Area, and may pave, surface in some other manner, or otherwise improve the Easement Area as Grantor desires, provided that no such improvements will interfere with Grantee's rights hereunder. 8. Grantee's Obligations Regarding Easement Area. (a) All activities by the Grantee on the Easement Area, including access across Grantor's Property, must be carried out in a manner and on a schedule reasonably expected to minimize disturbance to the natural features of said property, any improvements thereon, and the Grantor's intended purposes therefor. (b) In the event damage occurs from Grantee's use of or activities over or within the Easement Area or on Grantor's Property, including but not limited to a high water storm event within the Easement Area, Grantee agrees to make such repairs or take such other action as may be necessary to restore the Easement Area and Grantor's Property to a condition comparable to their prior condition, including but not limited to the reseeding with native grass seed as specified by the City of Fort Collins Parks Department and replanting of any disturbed areas in a manner reasonably satisfactory to the Grantor, and the provision of ongoing maintenance, including temporary irrigation of any seeded or planted areas, correction of any subsidence, and restoration of any other improvements or conditions impacted by Grantee's activities, until such time as any such repair and restoration is fully established and stabilized. (c) Grantee shall notify Grantor prior to performing any construction, maintenance, repair or other work on or within the Easement Area, and shall in advance of any non -emergency work submit a construction plan and schedule to Grantor for approval, which approval shall not be unreasonably delayed or withheld. The Grantee will need a Temporary Construction Easement from Grantor if working on Grantor's Property outside of the Easement Area. Notwithstanding these notification requirements, in cases of emergency repair, Grantee shall notify Grantor of the emergency and provide related construction plans and schedules as soon as reasonably practicable. 2 9. Representations of Grantor. Grantor makes no representations or warranties as to lawful ownership of Grantor's Property. 10. Recordation. Grantee will record this Deed in the records of the Larimer County Clerk and Recorder and furnish evidence of such recording to the Grantor. This Deed will not be valid until it is recorded. If this Deed has not been recorded with the Larimer County Clerk and Recorder within three (3) months of the date of execution of this Agreement by the Grantor, then the Easement will be null and void and have no force and effect whatsoever, and the parties will be relieved of any remaining obligations hereunder as of the date of such termination. 11. Abandonment. Should the Grantee fail to complete construction of the storm drainage elements of the Project on Grantee's Property within five (5) years from the date of this Deed, or should Grantee permanently discontinue using the Easement Area for a period of five (5) years, this shall constitute an abandonment of the Easement, and Grantee's rights under this Deed. 12. Indemnity and Insurance. (a) Grantee agrees to indemnify the City, its officers, agents, employees, representatives, successors and assigns from all claims and liability, including but not limited to the City's reasonable legal fees and costs, including attorneys' fees, for claims made by third persons for personal injury, death or property damage resulting from or arising out of the Grantee's use of the Easement Area or other activities on Grantor's Property, including but not limited to the construction, installation, operation, repair, and maintenance of improvements within the Easement Area, and for any actions or omissions by Grantee in violation of this Deed. (b) Grantee must procure, pay for, and keep in full force and effect during the term of the Easement a comprehensive policy of general liability insurance covering the Improvements and insuring Grantee in an amount not less than One Million Dollars ($1,000,000.00) covering bodily injury, including death to persons, personal injury, and property damage liability arising out of a single occurrence. Such coverage must include, without limitation, the insured's liability for property damage, bodily injuries, and death of persons in connection with the operation, maintenance, or use of the Improvements (including acts or omissions of Grantee or of its officers, employees, or agents), and protection against liability for non -owned and hired automobiles. Such coverage must also include coverage for such other risks as are customarily required by private institutional mortgage lenders with regard to property similar in construction, location, and use as the Improvements. All policies of insurance required hereunder must name Grantor as an additional insured, and shall contain a provision that the policy or policies cannot be canceled or materially altered either by the insured or the insurance company until fifteen (15) days' prior written notice thereof is given to Grantor. Upon issuance or renewal of any such insurance policy, Grantee shall furnish a certified copy or duplicate original of such policy or renewal thereof with proof of premium payment to Grantor. In the event Grantee fails or neglects to maintain, or require its contractor to procure and maintain, as applicable, the insurance required by this paragraph, then Grantor shall 3 have the right, upon giving the Grantee reasonable notice of its election to do so, to take out and maintain such insurance at the expense of the Grantee, and in such event the cost of such insurance shall be paid for by the Grantee promptly upon receipt of an invoice covering such charges. 12. Notices. Any notice or other communication relating to this Deed must be given by one party to the other at its respective address as set forth below by hand delivery; commercial carrier; or U.S. mail. The notice or other communication will be effective on the date it is delivered or on the third business day after being sent, whichever comes first. If to Grantee: Capstone Development Corporation 431 Office Park Birmingham, AL 35223 With a copy to: Jim Martell Liley Rogers & Martell LLC 300 S. Howes Street Fort Collins, CO 80521 If to Grantor: Real Estate Services Manager City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue, Building "B" Fort Collins, CO 80521 With a copy to: City Attorney's Office City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue, Building "A" Fort Collins, CO 80521 13. Default and Litigation Expenses. If a party to this Deed is in default in performance of its respective obligations hereunder, the other party has the right to an action for specific performance or damages or both. Prior to proceeding with any such action, the party not in default must first send written notice to the defaulting party specifying the default and affording such party a reasonable period to cure the default. In the event a party defaults in any of its covenants or 4 obligations and the party not in default commences and prevails in any legal or equitable action against the defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of the litigation, including a reasonable sum for attorneys' fees or similar costs of legal representation. 14. Assignment. Grantee may not assign its rights under this Deed without the prior written consent of the Grantor. 15. Additional Terms and Conditions. (a) Whenever used herein, the singular number includes the plural, the plural the singular; and the use of any gender is applicable to all genders. (b) All of the covenants herein contained are binding upon and inure to the benefit of the parties hereto, their personal representatives, successors and assigns. (c) If at any time the fee interest in Grantee's Property is owned by more than one party, each party with such an ownership interest in Grantee's Property shall be jointly and severally liable for the obligations of Grantee under this Deed. (d) The parties intend and agree that this Deed is to be construed and enforced according to the laws of Colorado, that venue in any proceeding related to the subject matter of this Deed will be in Larimer County, Colorado, and that this Deed is binding upon the parties hereto, their trustees, heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the Grantee has hereunder set its hand and seal the day and year first above written; and the Grantor has caused this Easement Deed and Agreement to be executed by its Mayor, attested to by its City Clerk, and its corporate seal to be hereunto affixed, all pursuant to Ordinance No.085, 2011, passed on final reading by the City Council of the City of Fort Collins on the 19`h day of July, 2011. 5 EXHIBIT A ATTACHED TO AND MADE A PART OF TERMINATION OF AGREEMENT AND VACATION OF ROADWAY EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HIGHLAND PROPERTIES 711 LLC, IMAGO LAFAYETTE, LLC, HALLE PROPERTIES, L.L.C. AND PJM7, LLC (Highland Properties Lot) Lot 1-A, Replat of Part of Lot 1 of the Spring Court Subdivision, City of Fort Collins, County of Larimer, State of Colorado; commonly known as 1801 South College Avenue, Fort Collins, CO 80525. F.-MI GRANTOR: THE CITY OF FORT COLLINS, COLORADO a Municipal Corporation Date: By: Karen Weitkunat, Mayor ATTEST: City Clerk APPROVED AS TO FORM: Senior Assistant City Attorney STATE OF COLORADO ) ss COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of , 2011, by Karen Weitkunat as Mayor and as City Clerk of the City of Fort Collins. Witness my hand and official seal. My Commission expires: r-1 Notary Public Date: 6Fte604 14 ;k0/1 ATTEST: STATE OF ALABAMA ) ) ss COUNTY OF 3WCQbr-1 ) GRANTEE: CAPSTONE DEVELOPMENT CORPORATION, An Alabama Corporation By: L. Jon ecutive Vice President The foregoing instrument was acknowledged before me this L day of _O CtD er , 2011, by L. Jeff Jones, as Executive Vice President and Tev, a , as ��L� of Capstsone Development Corporation. C��'�sT��-*tom 4sX': rs Witness my hand and official seal. My Commission expires: WTAKMfg11T2 OPAI.AT➢IMAATLAM9 MY COMMISSION FXPIRM AUGUST' 21, 2012 1amSo7lUu,XarAi nWXu1ID0rtwwn= Notary Public �,\\\\0O%E R0B/* Oy,��i NOTARY PIJBUZ ZZ Z 7 EXHIBIT "C" LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THOSE PARCELS OF RECORD AT RECEPTION NUMBER 0089010788 AND RECEPTION NUMBER 0088007557, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, CALCULATED TO BEAR S00'02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHWEST CORNER OF LOT 2 OF THE SPRING COURT SUBDIVISION, THENCE S89'36'51"E ALONG THE SOUTH LINE OF SAID LOT 2 A DISTANCE OF 143.78 FEET TO THE POINT OF BEGINNING; THENCE S89036'51"E CONTINUING ALONG SAID SOUTH LINE OF LOT 2 A DISTANCE OF 163.73 FEET; THENCE LEAVING SAID SOUTH LINE OF LOT 2 THE FOLLOWING SIX (6) COURSES ACROSS SAID PARCELS OF RECORD AT RECEPTION NUMBER 0089010788 AND RECEPTION NUMBER 0088007567: 1. S00'23'09"W A DISTANCE OF 23.04 FEET; 2. S75'16'41"W A DISTANCE OF 47.16 FEET; 3. S11'01'14"E A DISTANCE OF 21.88 FEET; 4. S85"2349"W A DISTANCE OF 54.38 FEET; 5. N79'57'37"W A DISTANCE OF 69.31 FEET; 6. N00'21'42"E A DISTANCE OF 49.89 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 8,140 SQUARE FEET, OR 0.187 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. 1, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC, 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 1 OF 2 N:WC802541CaddlSurvey%Legals%PRMAEM05.doe EXHIBIT "C" I 04 N � co W d pim - 1 I! O , U wZ w Nm U N i z w a z a. 5 \ N% ^ oa Z(Lr— z3 Jz0*Qz U 52^3 .r w(Aw:�tn- WZJM�Z z ZL�4VIa Q BASIS OF BEARINGS C � s aoroz'i6" E 2646.97' a v E. LINE NE i 4 SEC. 23 V Z COLLEGE AVENUE (HIGHWAY 287) U W s �o6ti'�g Q 0 N — -- — _. < w � w J W pppp N ~� nO�ppMM� v �1Q w N tj Nj j •� t7i p Z co cV Ln co a LL Q �- z Q N o LC < t- a `saw ��..o r W ■ • Q d' Z N (/j J W 3 V1 Q n.--Qo h � pU5 Q ��Joo ° Ja vWix i e� N 0 to Q N �V V i�C Lbc W O °C :3-I -i -i-i.J JJ 2+ I I cy vi li J 1 u v � � M -j w c � C7 N' 7 (Luq I K A tWt�,� N J 3 .~ t� a n M W Z O N O c ~ le 1- ZN �Z U O_O rLo Q H C < < 3 O and^� o_IZm za ON00N if E niao �oC)0 a K� Ow ~�CZ000) w c • o f S a am Ll'o% 0% og- 8 O<6Zto ¢ N u- O Q Q m --�-oao 0 I j I Q Z0 ZV N 4 a La yN WN Q fY ¢ O d �U w n aGo 0 - IM 2 zN Z H s 30000 0.0(AU.j 1 of o r o N U o >r f LL) r ONO.f531138 EXHIBIT B ATTACHED TO AND MADE A PART OF TERMINATION OF AGREEMENT AND VACATION OF ROADWAY EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HIGHLAND PROPERTIES 711 LLC, IMAGO LAFAYETTE,, LLC, HALLE PROPERTIES, L.L.C. AND PJM7, LLC (Brown Lots) Lot 1-B, Replat of a Part of Lot 1 of The Spring Court Subdivision in the City of Fort Collins, according to the Plat of said Subdivision recorded October 28, 1975 in Book 1670 at Page 194 of the records of the Clerk and Recorder, County of Larimer, State of Colorado; commonly known as 201 West Stuart Street, Fort Collins, CO. Lot 2, EXCEPT that part of said Lot 2 conveyed to The Department of Highways, State of Colorado in Deed recorded in Book 1093 at Page 360, Spring Court Subdivision, County of Larimer, State of Colorado; commonly known as 1.805 and 1807 South College Avenue, Fort Collins, CO. EXHIBIT C ATTACHED TO AND MADE A PART OF TERMINATION OF AGREEMENT AND VACATION OF ROADWAY EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HIGHLAND PROPERTIES 711 LLC, IMAGO LAFAYETTE, LLC, HALLE PROPERTIES, L.L.C. AND PJM7, LLC. (Johnson Investments Property) PROPERTY TO BE CONVEYED TO CAPSTONE LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF FT. COLLINS LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION OF RECORD IN BOOK 1413 AT PAGE 863, AND BEING A PORTION OF THAT PARCEL OF LAND CONVEYED IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS - THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 31NCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, CALCULATED TO BEAR SO0°02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO, BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE THE FOLLOWING THREE (3) COURSES ALONG THE EAST LINE OF THE COLORADO & SOUTHERN RAILROAD RIGHT-OF-WAY AS ESTABLISHED BY WALLACE MUSCOTT, P.L.S. WITH THE CITY OF FT. COLLINS AND ALSO BEING THE WEST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. N06°12'38"E A DISTANCE OF 267.90 FEET TO A POINT OF CURVATURE; 2, ALONG THE ARC OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4,573,35 FEET, A CENTRAL ANGLE OF 06-18-34", AN ARC LENGTH OF 503.62 FEET, THE CHORD OF WHICH BEARS NO3°03'21"E A CHORD DISTANCE OF 503.37 FEET; 3. N00°05'56"W A DISTANCE OF 89.61 FEET TO THE SOUTHWEST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20050079268; THENCE LEAVING SAID EAST LINE OF THE COLORADO & SOUTHERN RAILROAD AND THE WEST LINE OF SAID LOT 3 THE FOLLOWING FOUR (4) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND ALSO ALONG THE SOUTHERLY AND EASTERLY LINES OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20050079268: 1. N89'40'38"E A DISTANCE OF 55.15 FEET; 2. S45"27'164E A DISTANCE OF 67.77 FEET; 3, S8I°48'40"E A DISTANCE OF 104.13 FEET; 4. NOI * 11' 13"E A DISTANCE OF 35.13 FEET TO THE SOUTHWEST CORNER OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDIVISION; THENCE S89°38'48"E ALONG THE SOUTH LINE OF SAID LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 35.26 FEET; THENCE LEAVING SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION THE FOLLOWING FIVE (5) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: i. S00`07'07"E A DISTANCE OF 239.28 FEET; 2, SOO°07107"E A DISTANCE OF 248.21 FEET; 3. N89°49'03"E A DISTANCE OF 104.19 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 90005700; 4. S00902'18"W ALONG THE WEST LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 146.86 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700; C-1 LEGAL DESCRIPTION 5, N89°50'51"E ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 105.26 FEET TO THE EAST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDMSION AND BEING THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700; THENCE THE FOLLOWING FIVE (5) COURSES ALONG THE EAST LINES OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: L SDO'02'16"E A DISTANCE OF 86,39 FEET; 2. N89'57'44"E A DISTANCE OF 3.00 FEET; 3. S00802'16"E A DISTANCE OF 78.00 FEET; 4. S89°57'44"W A DISTANCE OF 3.00 FEET; 5. S00002' 16"E A DISTANCE OF 36.39 FEET TO THE SOUTHEAST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE N89039'12"W ALONG THE SOUTH LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 508.65 FEET TO THE POINT OF BEGINNING Ewa LEGAL DESCRIPTION JOHNSON INVESTMENTS RETAINED PROPERTY A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND ALSO BEING A PORTION OF THAT PARCEL OF RECORD IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00002'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHEAST CORNER OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDIVISION, THENCE N89038'48"W ALONG THE SOUTH LINE OF SAID LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 5.52 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 96079001 AND THE POINT OF BEGINNING; THENCE LEAVING SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER THE FOLLOWING SIX (6) COURSES ALONG THE WESTERLY LINES OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96079001: 1. S00001'23"E A DISTANCE OF 69.06 FEET TO A POINT OF CURVATURE; 2. THENCE ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 602.50 FEET, A CENTRAL ANGLE OF 01 038'12", AN ARC LENGTH OF 17.21 FEET, THE CHORD OF WHICH BEARS S00047'43"W A CHORD DISTANCE OF 17.21 FEET; 3. S01 036'49"W A DISTANCE OF 47.51 FEET; 4. S46031'40"W A DISTANCE OF 10.59 FEET; 5. S01 020'31 "W A DISTANCE OF 7.00 FEET; 6. S88°34'02"E A DISTANCE OF 11.23 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96079001 AND BEING A POINT ON THE EAST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE THE FOLLOWING TWO (2) COURSES ALONG SAID EAST LINE OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S01 °25'44"W A DISTANCE OF 24.88 FEET; 2. S00002'16"E A DISTANCE OF 312.34 FEET; THENCE LEAVING SAID EAST LINE OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION THE FOLLOWING TWO (2) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S89049'03"W A DISTANCE OF 209.25 FEET; 2. N00007'07"W A DISTANCE OF 487.48 FEET TO SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE S89038'48"E ALONG SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 208.85 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 101,658 SQUARE FEET, OR 2.334 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. PAGE 1 OF 3 N:\FCB0254\Choice Center\Cadd\Survey\ET\FCB0254-PRMABN02.doc C-3 I, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 2OF3 NAFCB0254\Choice Center\Cadd\Survey\ET\FCB0254-PRMABN02.doc C-4 BERESFORO XREFS: p C g s i �§:iyys r C � n O m = O z F� non �Aoa m ZX o zW AmN M <-10 �a W n A 400 -+mm I M r m Z am -I N m m�7D I O z m a :13 O AI W O D m zoo m M Axe c00 xz Q 0 0 Sir S 0 0 O Z W C C A m 0 0, c A, D m r m i-VDO N O 0. l o0C 00p zA�mm Im 0 O O D A m o C mA mF A ti _ p m c02Z =m � m U O m �m NO0 DO oN p Q y tin D oz z W o m� �N I W2 C M n O A� ZCl f ri r m �o � =m W m �p I r DO ~D O S89'49'03"W 209.2 m x m m 0 C c m m A r o =of I N V y 0 I D 0 m FUTURE STUART STREET EXISTING STUART STREET 1n HIGHLAND r Cc: A, D m r PROPERTIES 711 LLC RN 20110040915 mo 12 - > o 0 N 0 I Zco1ooD ym m A Zr N� D C o Obis O Oc,0X 5 0 O O p — A � O C N Z A O 1 m I itrilzrzi �o _ 0z 1_2 iAu)C vD m�CA r D n 1 b N 00 I MTOn Mom A Z ` b Zm Jm A m / z z m ImM rn� o _ v o rrr k — — J N PARKER STREET — m � n ZZ r p 0 � A m 0 D o . N oxm�� m N N m m Ab C] N J (A �Nv � W I 0 r Fi 100' m DC z z C m x x D I IN I m O A 0 MATHEMATICAL 1/16 CORNER SMART STREET mm 00 00 m� 0 A O 0 n O ti N + m I F O Io to Z0Zm O O J O \ Z� " �O I �y0y mJN.T g Z01 Z vNW 'i�D� N Ox ; f N A 0 Z V W I EXHIBIT D ATTACHED TO AND MADE A PART OF TERMINATION OF AGREEMENT AND VACATION OF ROADWAY EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HIGHLAND PROPERTIES 711 LLC, IMAGO LAFAYETTE, LLC AND HALLE PROPERTIES, L.L.C. (the Halle Property) A part of Lot 3, Fox Shopping Center Subdivision, City of Fort Collins, County of Larimer, State of Colorado, that begins at a point on the East line of said Lot 3 which bears S 01 °03' W 173.59 feet and again S 00°25' E 312.07 feet from the Southeast corner of Lot 2, Fox Shopping Center Subdivision and run thence S 89°32'30" W 105.40 feet; thence S 00°15'40" E 147.00 feet; thence N 89°32'30" E 105.80 feet; thence N 00°25' W 147.00 feet to the point of beginning. D-1. EXHIBIT E ATTACHED TO AND MADE A PART OF TERMINATION OF AGREEMENT AND VACATION OF ROADWAY EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HIGHLAND PROPERTIES 711 LLC, IMAGO LAFAYETTE, LLC AND HALLE PROPERTIES, L.L.C. (the PJM7 Property) A PORTION OF LOT 3, FOX SHOPPING CENTER SUBDIVISION, ACCORDING TO THE PLAT RECORDED JULY 22, 1969 IN BOOK 1413 AT PAGE 863, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, WHICH BEGINS AT THE NORTHEAST CORNER OF SAID LOT 3 AND RUNS THENCE 01003' W 495.00 FEET; THENCE N 82° 16'45" W 104.06 FEET; THENCE N 45038' W 68.00 FEET; THENCE S 89°22' W 54.00 FEET TO A POINT ON THE WEST LINE OF SAID LOT 3; THENCE N 00°38' W 244.00 FEET; THENCE EAST 116.99 FEET; THENCE N 190.00 FEET; THENCE EAST 100.50 FEET TO THE POINT OF BEGINNING. E-1 \1 H. PJM7 is the owner of the real property legally described on Exhibit E attached hereto and incorporated herein by reference ("the PJM7 Property"). I. The Common Driveway is located entirely on and within the boundaries of the Johnson Investment Property. J. Johnson Investments, Halle, Brown, Highland Properties and PJM7 are the owners of all of the property burdened and benefited by the Common Driveway. I. Imago Lafayette is the beneficiary of a deed of trust dated July 7, 2011 and recorded July 8, 2011.at Reception No. 2011-0040916 of the Larimer County, Colorado records ("the Imago Lafayette Deed of Trust"). The Imago Lafayette Deed of Trust encumbers the Highland Properties Lot. J. The parties hereto desire to terminate the Agreement and vacate the Common Driveway. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree as follows: 1. The Agreement shall be and is hereby terminated, cancelled, rescinded, revoked, made null and void, and shall be of no further force or effect. Any license, easement or right-of-way created by the Agreement shall be and is hereby tenninated, released and vacated. 2. Halle, Brown, Highland Properties, Imago Lafayette and PJM7, for themselves and their heirs, personal representatives, successors and assigns hereby sell, transfer, convey, assign and release to Johnson Investments, its successors and assigns, any and all right, title and interest which Halle, Brown, Highland Properties, Imago Lafayette and PJM7 have or may have in and to the Common Driveway. 3. The Johnson Property shall be held, sold, conveyed, transferred, leased subleased, occupied and encumbered free and clear of the Agreement, any and all covenants, conditions, and restrictions contained therein. 4. Johnson Investments, its successors or assigns, shall have the right but not the obligation to remove the Common Driveway from the Johnson Property. 5. This Agreement may be executed in counterpart copies and the original signature page from each copy may be attached to one document for recording. When copies have been signed by all parties, the terms and provisions of this Agreement shall run with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. 2 RECEPTION#: 20110062799, 10/1412011 at 11:29:14 AM, 1 OF 21, R $111.00 TD Pgs: 0 Scott Doyle, Larimer County, CO FIRST AMENDMENT TO CROSS EASEMENT AGREEMENT THIS FIRST AMENDMENT TO CROSS EASEMENT AGREEMENT ("First Amendment") is made and entered into this 30 day of September, 2011, by and between JOHNSON INVESTMENTS, INC., a Colorado corporation ("Johnson"), and HALLE PROPERTIES, L.L.C., an Arizona limited liability company ("Halle"). RECITALS: A. Johnson is the owner of the real property legally described on Exhibit A attached hereto and incorporated herein by reference ("the Johnson Tract"). B. Halle is the owner of the real property legally described on Exhibit B attached hereto and incorporated herein by reference ("the Halle Tract"). The Halle Tract is presently being used for a retail tire store business known as "Discount Tire" ("the Tire Store"). C. Johnson and Halle -Von Voigtlander, a Michigan general partnership ("the Partnership"), made and entered into that certain Cross Easement Agreement dated January 30, 1990 and recorded February 7, 1990 at Reception No. 90005701 of the Larimer County, Colorado records ("the Easement Agreement"). D. The Partnership is the predecessor in title of Halle to the Halle Tract. E. Johnson and Halle desire to amend and modify certain terms and provisions of the Easement Agreement. F. Johnson intends to re -plat all or a portion of the Johnson Tract to be known as Choice Center. A copy of the final plat of Choice Center is attached hereto as Exhibit C and incorporated herein by reference ("the Choice Center Plat"). G. Pursuant to the terms of the Easement Agreement, the Partnership and Johnson granted to each other and their respective successors, assigns, tenants, employees v and business invitees a perpetual reciprocal non-exclusive access and parking easement r cr as more fully described in the Easement Agreement ("the Cross Easement'). moo` n o H. In connection with the re -platting of the Johnson Tract, the City of Fort Ch(8 Collins, Colorado ("the City") is requiring the dedication of a right-of-way consisting of cp approximately 4,882 square feet along the easterly most boundary of Lot 3 adjacent to OA College Avenue (Highway 287) for a public sidewalk ("the Sidewalk Right -of -Way"). ca a) The Sidewalk Right -of -Way is legally described on Exhibit D attached hereto and incorporated herein by reference. i .A (9/29/C:\Documents and Settings\shelfman\Application Data\Kapish\TRQvi Exp1orer\TP\1\2\3\LEGAL RD - CON 01 First Amendment to Cross Easement Agreement 20110929.docxl 1) 1 I. In connection with the re -platting of the Johnson Tract, the City is requiring the dedication of a utility easement to be located within the boundaries of the Cross Easement as shown on the Choice Center Plat ("the Utility Easement"). The Utility Easement is legally described on Exhibit E attached hereto and incorporated herein by reference. J. In connection with the re -platting of the Johnson Tract, the City is requiring the dedication of a 44 foot wide easement for emergency access, public access, drainage and utilities to be located in part within the boundaries of the Easement Agreement as shown on the Choice Center Plat ("the Public Access Easement"). The Public Access Easement is legally described on Exhibit F attached hereto and incorporated herein by reference. K. A portion of the Halle Tract which is subject to the Cross Easement is being used by the Tire Store for the storage of tires and a trash dumpster ("the Storage Area"). The Storage Area is legally described on Exhibit G attached hereto and incorporated herein by reference. L. The parties hereto desire to amend and modify the Easement Agreement as necessary to accommodate the Sidewalk Right -of -Way, the Utility Easement, and the Public Access Easement (collectively the "Choice Center Easements"). M. The parties further desire to amend and modify the Easement Agreement to remove the Storage Area from the Cross Easement. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree as follows: 1. The Sidewalk Right -of -Way shall be and is hereby released from the Cross Easement. To the extent that Halle may have any right, title or interest in or to the Sidewalk Right -of -Way, Halle, for itself and its successors and assigns, hereby dedicates to the public forever the Sidewalk Right -of -Way for a public sidewalk. 2. The Easement Agreement shall be and is hereby made subject, subordinate and subservient to the Utility Easement. The Utility Easement shall be prior and superior to the Cross Easement. 3. The Easement Agreement shall be and is hereby made subject, subordinate and subservient to the Public Access Easement. The Public Access Easement shall be prior and superior to the Cross Easement. (9/29/C:\Documents and Settings\shelfman\Application Data\Kapish\TRIM Exp1orer\TP\1\2\3\LEGAL RD - CON 01 First Amendment to Cross Easement Agreement 20110929.docx 1 1) 2 4. The Storage Area shall be and is hereby released from the Cross Easement. To the extent that Johnson may have any right, title or interest in or to the Storage Area, Johnson, for itself and its successors and assigns, hereby sells and conveys to Halle, its successors and assigns, forever, the Storage Area free and clear of the Cross Easement. 5. Johnson, its successors, assigns, agents, employees, contractors and subcontractors shall have the right to enter upon all lands subject to the Cross Easement for the construction, installation, maintenance, repair, replacement and improvement of the Choice Center Easements. Upon completion of any work within the area of the Choice Center Easements, the person or entity performing such work shall restore the surface of such area to substantially the same or better condition than existed prior to the commencement of such work. 6. Except as expressly amended or modified herein, all other terms and provisions of the Easement Agreement shall remain the same and are expressly ratified and affirmed by the parties hereto. In the event of any conflict between the terms and provisions of this First Amendment and the terms and provisions of the Easement Agreement, the terms and provisions of this First Amendment shall control. 7. The terms, covenants, conditions and provisions herein contained shall run with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the day and year first above written. JOHNSON: JOHNSON INVESTMENTS, INC., a Colorado corporation By: C)l '4 d Cheryl Olson, Vice President HALLE: HALLE PROPERTIES, L.L.C., an Arizona limited liability company By. ames Silhasek, Agent (9/29/C:\Documents and Settings\shelfman\Application Data\Kapish\TRIM Exp1orer\TP\1\2\3\LEGAL RD - CON 01 First Amendment to Cross Easement Agreement 20110929.docx11) 3 STATE OF COLORADO ) ss. COUNTY OF LARIMER ) Q The foregoing instrument was acknowledged before me this q 44L day of �erb►, 2011, by Cheryl Olson, as Vice President of JOHNSON INVES INC., a Colorado Corporation. O�p�r•P• B��C WITNESS my hand and seal. • �N10'ME My commission expires: 4�7,� it HpS� R .< Notary77L"�� L Public STATE OF ARIZONA ) ss. COUNTY OF MARICOPA) The foregoing instrument was acknowledged before me this 3U day of September, 2011, by James Silhasek, as the Agent of HALLE PROPERTIES, L.L.C., an Arizona Limited Liability Company. WITNESS my hand and seal. My commission expires Notary Public (9/29/C:\Documents and Settings\shelfman\Application Data\Kapish\TRIM Explorer\TP\1\2\3\LEGAL RD - CON 01 First Amendment to Cross Easement Agreement 20110929.docx11) 4 EXHIBIT A ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO CROSS EASEMENT AGREEMENT BETWEEN JOHNSON INVESTMENTS, INC. AND HALLE PROPERTIES, L.L.C. JOHNSON TRACT PROPERTY TO BE CONVEYED TO CAPSTONE LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF FT. COLLINS, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION OF RECORD IN BOOK 1413 AT PAGE 863, AND BEING A PORTION OF THAT PARCEL OF LAND CONVEYED IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS - THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" INA RANGE BOX, CALCULATED TO BEAR S00°02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE THE FOLLOWING THREE (3) COURSES ALONG THE EAST LINE OF THE COLORADO & SOUTHERN RAILROAD RIGHT-OF-WAY AS ESTABLISHED BY WALLACE MUSCOTT, P.L.S. WITH THE CITY OF FT. COLLINS AND ALSO BEING THE WEST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. N06°12'38"E A DISTANCE OF 267,90 FEET TO A POINT OF CURVATURE; 2, ALONG THE ARC OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4,573,35 FEET, A CENTRAL ANGLE OF 06-18-34", AN ARC LENGTH OF 503.62 FEET, THE CHORD OF WHICH BEARS NO3°03'21"E A CHORD DISTANCE OF 503,37 FEET; 3. N00°05'56"W A DISTANCE OF 89.61 FEET TO THE SOUTHWEST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20050079269; THENCE LEAVING SAID EAST LINE OF THE COLORADO & SOUTHERN RAILROAD AND THE WEST LINE OF SAID LOT 3 THE FOLLOWING FOUR (4) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND ALSO ALONG THE SOUTHERLY AND EASTERLY LINES OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20050079268: 1. N89°40'38"E A DISTANCE OF 55.15 FEET; 2. S45°27'16"E A DISTANCE OF 67.77 FEET; 3. S81°48'40"E A DISTANCE OF 104.13 FEET; 4. N01 ° 11' 13"E A DISTANCE OF 35.13 FEET TO THE SOUTHWEST CORNER OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDIVISION; THENCE S89038'48"E ALONG THE SOUTH LINE OF SAID LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 35.26 FEET; THENCE LEAVING SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION THE FOLLOWING FIVE (5) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S00°07'07"E A DISTANCE OF 239.28 FEET; 2. S00°07'07"E A DISTANCE OF 248.21 FEET; 3, N89049'03"E A DISTANCE OF 104.18 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 90005700; 4. S00°02'18"W ALONG THE WEST LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 146.86 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700; A-1 LEGAL DESCRIPTION 5. N89050'51"E ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 105.26 FEET TO THE EAST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDMSION AND BEING THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700: THENCE THE FOLLOWING FIVE (5) COURSES ALONG THE EAST LINES OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: I. S00°02'16"E A DISTANCE OF 86.39 FEET: 2. N89°57'44"E A DISTANCE OF 3.00 FEET; 3. S00602'16"E A DISTANCE OF 78.00 FEET; 4. S89`57'44"W A DISTANCE OF 3.00 FEET; 5. S00°02' 16"E A DISTANCE OF 36.39 FEET TO THE SOUTHEAST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE N89039'12"W ALONG THE SOUTH LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 508.65 FEET TO THE POINT OF BEGINNING A-2 LEGAL DESCRIPTION JOHNSON INVESTMENTS RETAINED PROPERTY A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND ALSO BEING A PORTION OF THAT PARCEL OF RECORD IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00002'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHEAST CORNER OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDIVISION, THENCE N89°38'48"W ALONG THE SOUTH LINE OF SAID LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 5.52 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 96079001 AND THE POINT OF BEGINNING; THENCE LEAVING SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER THE FOLLOWING SIX (6) COURSES ALONG THE WESTERLY LINES OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96079001: 1. S00001'23"E A DISTANCE OF 69.06 FEET TO A POINT OF CURVATURE; 2. THENCE ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 602.50 FEET, A CENTRAL ANGLE OF 01'38'12", AN ARC LENGTH OF 17.21 FEET, THE CHORD OF WHICH BEARS S00°47'43"W A CHORD DISTANCE OF 17.21 FEET; 3. S01 °36'49"W A DISTANCE OF 47.51 FEET; 4. S46031'40"W A DISTANCE OF 10.59 FEET; 5. S01020'31"W A DISTANCE OF 7.00 FEET; 6. S88034'02"E A DISTANCE OF 11.23 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96079001 AND BEING A POINT ON THE EAST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE THE FOLLOWING TWO (2) COURSES ALONG SAID EAST LINE OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S01 °25'44"W A DISTANCE OF 24.88 FEET; 2. S00°02'16"E A DISTANCE OF 312.34 FEET; THENCE LEAVING SAID EAST LINE OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION THE FOLLOWING TWO (2) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S89049'03"W A DISTANCE OF 209.25 FEET; 2. N00°07'07"W A DISTANCE OF 487.48 FEET TO SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE S89038'48"E ALONG SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 208.85 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 101,658 SQUARE FEET, OR 2.334 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. PAGE 1 OF 3 N:\FCB0254\Choice Center\Cadd\Survey\ET\FCB0254-PRMABN02.doc A-3 I, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 2 OF 3 N:\FCB02541Choice Center\Cadd\Survey\ET\FCB0254-PRMABN02.doc BERESFORp XREFS: I S A n N N G � w m D �c 0 A _ m m A n Y � N � N g } _ a m y�yo s 0 O � f i a a Im 0 v M v -n 0 ti7 to -1 L 0 = Z m GO zz f� 0 o 0X Z= a NAv Ov. C c Z W Oy Amc M 0 W _ n P 400 M37 C A �mm — - - I >n m m Z nm-1 CD momD v� I 2 Z a �� O W O D zoo E~r��A A ti c=Z p00 A o n S � 0 0 O Z w rrrrrrC O)(7�?WNfZ m N V)N (/)NN O EIDO?00-1 00 rn�OD Na 4141O W N0�q-tat '1'1 4 OL4? AN.. E++ m m ha cb CD u O 0 0 II II A 00 II II o � 1 7 CCC J C) 0N N f+1 C) -Cu N � v N O D W Rrl TI C c m 0 2 N u O D A mr m O N-K 2 A A Q A D On noM> sA � 15il l m ZA=ao -m ti0 m A� r 4 N D 2� A n J cA A m Z r 0 O O O A O 5 O N O On b 0 z p 0 O m zm �o A X NNO I C = � U Sz L) m I 0 2 z Z ti Z O O m D 0 m cxz =m O m m m C�) a r o-0 A0 my O o0o >2 O ti O D �2 z G 4� �O o V2 nn �o rn' O I C n A O C AE m f m r <o � = m 0 I m r 0 � D O W 209.2 X 0 m rl 0 C c m m r A o =of I to� m01 DiO I - m aom FUTURE STUART STREET EXISTING STUART STREET in HIGHLAND r C A 0 D m r- PROPER 77ES 711 LLC m Z_ v v O �0 Dry RN 2011004091525 z ZC O O D 2� ins D I on S�oz no -^' z I - � F 2 z A O M 0 I I _ ZGzrzn Io �0 — NZ OVGO O ti CyA O ;vDm S m m r A rD m0 ybMW — I. or m O A N O A z I_ 6- Z m _ s m I JA m 0 V z m 0M O y m j J 0 b O I_ I — � WJ?JUri A PARKER STREET F 7 - _ jm jV 1 N n OZ r O Azo m N mD Z N A A m FAczi raj m l Om m N N m OI Z 0�J_0 10 J 'n A G I o _ m O 100, r^ D A z c m S D I I� I - J 0 0 0 MATHEMATICAL 1116 CORNER STUART STREET mM no z V n I z z O O C ti NI c m o v _ Z0z m z n 0 -0O OVNJ AO I Cb�n o m_J w a Z g N AC -zi mOrA I r 5 O z v w I EXHIBIT B ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO CROSS EASEMENT AGREEMENT BETWEEN JOHNSON INVESTMENTS, INC. AND HALLE PROPERTIES, L.L.C. (the Halle Property) A part of Lot 3, Fox Shopping Center Subdivision, City of Fort Collins, County of Larimer, State of Colorado, that begins at a point on the East line of said Lot 3 which bears S 01°03' W 173.59 feet and again S 00°25' E 312.07 feet from the Southeast corner of Lot 2, Fox Shopping Center Subdivision and run thence S 89°32'30" W 105.40 feet; thence S 00°15'40" E 147.00 feet; thence N 89°32'30" E 105.80 feet; thence N 00°25' W 147.00 feet to the point of beginning. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. JOHNSON INVESTMENTS, INC., a Colorado corporation By: J Che Olson, Vice President if HIGHLAND PROPERTIES 711 LLC, a Colorado limited liability company By:_ Name: Title: IMAGO LAFAYETTE, LLC, a Colorado limited liability company In Lester M. Kaplan, Manager/Member HALLE PROPERTIES, L.L.C., a Colorado limited liability company In James Silhasek, Agent PJM7, LLC, a Colorado limited liIity company Patrick J. VcGAughran, Manager 41 EXHIBIT C ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO CROSS EASEMENT AGREEMENT BETWEEN JOHNSON INVESTMENTS, INC. AND HALLE PROPERTIES, L.L.C. FTNAT PT AT 4+ E%ISTNC EXIa1mT, �I '' ep,[,� ICI LOIINERgAL Gy}f [ s l 'Q�[p+I I I.T 1. r rt ti �• R1CR Swbtw90x I �O�I i I o[ YIO,siRO c[xTCn s'vOdWSd IXISTYOGWERO& nT.ui I�YJ Fa.[r SF K= ,III aa� S w IIRI e'�a I -a I F I � II �kpi i�R I�R iyi ' i I i RJR ,j - r I t aO 13 o yl $ c I — I I$ ,— PANOM SMQT i � i �' 1 I A� ha� IS o w eq� ggg � 0 a, 11 1 sit �� J 1 I � g� � n re,•e i i w3p g�; S7,— P� d � Qp pp I ❑ R: ar. I Q . .re � � I � � • .v'"u'S7R�FT M�j A c I I E!S11NO ZPINNQ I C- OOYYEPCIAL I I I I A P. •, nR,.T o I „r m[ vuxc coon i I ■® o • o ff $ ZONE k' •i N ✓Cf I M MO ZOxINO ♦ jRul- OOYYERgAL ra a Lor z Y 666 4 � ♦ yyP g CHOICE CENTER NOLTE �£� a FINAL PLAT EEroER Ek•Ik[EAIY• FORT COLLINS, COLORADO ■ LE m•YIV Pon OIwR •M. IrnriWE mfefw !°:, w��i%:.'w� weN®R NY1M• vAk MIYIIA�1 PREPARED FOR: OAFlTpE DEYELDF14Zf DATE 081i -fM OVLVti w rn..y%.:,•�ri+i. C-1 EXSIBIT D ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO CROSS EASEMENT AGREEMENT (Sidewalk Right -of -lay) LEGAL DESCRIPTION A VARIABLE WIDTH STRIP OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THAT PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 AND ALSO BEING A PORTION OF THAT PARCEL OF LAND OF RECORD IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BYA FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00°02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. BEGINNING ON THE EAST LINE OF SAID PARCEL OF RECORD IN BOOK 1387 AT PAGE 658 AND BEING THE NORTHEAST CORNER OF SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701, FROM WHENCE SAID NORTHEAST CORNER OF SECTION 23 BEARS N05027'04"E A DISTANCE OF 731.64 FEET; THENCE S00002'16"E ALONG THE EAST LINE OF SAID PARCEL OF RECORD IN BOOK 1387 AT PAGE 658 AND ALONG THE EAST LINE OF SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 A DISTANCE OF 247.03 FEET TO THE NORTHEAST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20080072453; THENCE S89"49'03"W ALONG THE NORTH LINE OF SAID PARCEL OF, RECORD AT RECEPTION NUMBER 20080072453 A DISTANCE OF 9.19 FEET; THENCE LEAVING SAID NORTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20050072463, THE FOLLOWING TWO (2) COURSES ACROSS SAID PARCEL OF RECORD IN BOOK 1387 AT PAGE: 658: 1. N00°00'10"E ACROSS SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 A DISTANCE OF 247.08 FEET TO THE NORTH LINE OF SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701; 2. S89'51'33"E ALONG THE NORTH LINE OF SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 A DISTANCE OF'9.02 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 2,250 SQUARE FEET, OR 0,052 ACRES, MORE OR LESS, EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF, 1, CHARLES BERESFQRD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No, 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 1 OF 2 N,IFCB0254\Cadd%SurveyU-egalslPRMAEM 10.doc D-1 i I I I N N X N x cl � gi ( zz�orn� wZ—Q rnm w O 0MZa�..�= c'o lz`l0 o i �w�2 'd ZV a. zac~n z �aN o> J- � cn =' Z Ui 0- Lu + . _ ._ COLLEGE AVENUE (HIGHWAY 287) RIGHT-OF-WAY BASIS OF BEARINGS TO BE DEDICATED �9i S 00'02'16" E 2846,97' uJ a BY THE E, LINE NE t /4 SEC. 23 QLLJ CHOICE CENTER SQL FINAL PLATW o L1 �w-jC/3oJ I t' L3 ,^ is3 Ix W o z J PRIVA iE CROSS ACCESS do PARKING Lo L u z EASEMENT R.N. 90005701 N w V N '1 o � z am w! z On iWaa�o N W mV H W o F--- v1 --- - -- __ ao Do N i V i O n �wO .,.' a X W� D: 0 LLJZ q cam, z ' W"`° Z Z 0 W ��UQ' 41xZ MLi Iowa �4� + v 2—a 4i0 W wNZ'i O g4 U! oZ �� I �o0Q �vt mF- vi -`o U� C, zOn ��Uz t,J U � Q m O u- v i UO a�i n m a N p 7 Y d u Fi p7 aG ao,o- co O [J coo zz < cq a m N v n O Qi N = a O-2On N aj M coW a O i:Li � C, OQ 'd7 Q Y p cf � fi m W C} odo:n m �dWQ Go z w a o • p O- C _$ N w CV O CA C m 0 F yj W Z O A i j Lij N W O E d-2 aaoeSM a EXHIBIT E ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO CROSS EASEMENT GREEMEN (Utility Easement) LEGAL DESCRIPTION A VARIABLE WIDTH STRIP OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THAT PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 AND ALSO BEING A PORTION OF THAT PARCEL OF LAND OF RECORD IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER, OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-112 INCH ALUMINUM CAP STAMPED "LS 17497, 1991- IN A MONUMENT BOX, CALCULATED TO BEAR 800002'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT A POINT ON THE EAST LINE OF SAID PARCEL OF RECORD IN BOOK 1387 AT PAGE 658 AND BEING THE NORTHEAST CORNER OF SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701, FROM WHENCE SAID NORTHEAST CORNER OF SECTION 23 BEARS N05-27'04"E A DISTANCE OF 731.64 FEET; THENCE S22°1 B'55"W ACROSS SAID PARCEL OF LAND OF RECORD IN BOOK 1387 AT PAGE 658 AND ACROSS SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 A DISTANCE OF 23,76 FEET TO THE POINT OF BEGINNING; THENCE THE FOLLOWING SEVEN (7) COURSES AND DISTANCES ACROSS SAID PARCEL OF RECORD IN BOOK 1387 AT PAGE 658 AND ACROSS SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701: I. S00°00'10'W A DISTANCE OF 6,00 FEET; 2. N89°51'33"W A DISTANCE OF 173.70 FEET; 3. S00'08'27"W A DISTANCE OF 4.08 FEET; 4. N89°37'16"W A DISTANCE OF 10.31 FEET TO A POINT OF CURVATURE 5. THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 128.79 FEET, A CENTRAL ANGLE OF 00010'49", AN ARC LENGTH OF 0.40 FEET, THE CHORD OF WHICH BEARS N24°50'08"W A CHORD DISTANCE OF 0.40 FEET TO A POINT OF COMPOUND CURVATURE; 6. THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGLE OF 52010'44", AN ARC LENGTH OF 22.77 FEET, THE CHORD OF WHICH BEARS N64°03'05"E A CHORD DISTANCE OF 21.99 FEET; 7. S89°51'33'E A DISTANCE OF 162.42 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 1,090 SQUARE FEET, OR 0.025 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BYTHIS REFERENCE MADE A PART HEREOF, N: kFC802541Caddk$ urveylLegafslPRMAEM 11.doc PAGE IOF3 E-1 1, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 N:1FCB02541CaddlSUMYy LegafslPRMAEMI I.doc PAGE 2 OF 3 E-2 � Y Z P. N X ry I (J ^ O m af=U iZ zz�orn� Ca OX �0 wz�d r'r w-�W d M O V) Z C n z z U Z CV tIJ Uon<N� �`=IS Vol, � ZLd L.<V). \ q -) COLLEGE AVENUE (HIGHWAY 287) RIGHT-OF-WAY BASES OF BEARINGS TO 3BE DEDICATED S 00'02'16" E 2646.97' BY THE E. LINE NE 1/4 SEC. ;3 c,4 CHOICE CENTER FINAL PLAT QJ PRIVATE CROSS ACCESS vi �t & PARKING £AS£MENT w a w n R.N. 90005701 ¢ � z o tVi a o QUn 04 o � Uzrn � orto U C Q I F- } -J p0 I�-C�7UJ-J ��UQ V}Ula0 �+ M }- s �JVZ OtiZ� OoUQ a U� U <m LO U Ln O � A z O - 4 O�C7 d 'm w r 0prjp�7 O - zU z in N 0 Tom- O� NcNLO 11 m mZ 3 w U J 4 V U 0ZtD Uw r z tn i w m E{ z Q oaOQ F�cw Q �2-- i -j o ' m (�- ;- 00 V) CO r- QNO �O�O� ~tN11(0ZEnZN trr ItLn. 7) Nx Zia "' U co LLJ lf1 Cp N a Z 0 J a- 0- 0 0 II IE U�J�3UU ! E-3 o LU V O co 0 � ac LU � uu � a�- LU J w Q L� UJI J CO Vi 0LU < LL CO I_- W FnU S V WN W CO 0 EXHIBIT F ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO CROSS. EASEMENT GRE�j' (Public Access Easement) LEGAL DESCRIPTION A VARIABLE WIDTH STRIP OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THAT PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 AND ALSO BEING A PORTION OF THAT PARCEL OF LAND OF RECORD IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL. MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991' IN A MONUMENT BOX, CALCULATED TO BEAR 800"02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT A POINT ON THE EAST LINE OF SAID PARCEL OF RECORD IN BOOK 1387 AT PAGE 658 AND BEING THE NORTHEAST CORNER OF SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701, FROM WHENCE SAID NORTHEAST CORNER OF SECTION 23 BEARS N05`27'04"E A DISTANCE OF 731.64 FEET; THENCE N89°51'33"W ACROSS SAID PARCEL OF LAND OF RECORD IN BOOK 1387 AT PAGE 658 AND ALONG THE NORTH LINE OF SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701 A DISTANCE OF 9.02 FEET TO THE POINT OF BEGINNING; THENCE THE FOLLOWING SIX (6) COURSES AND DISTANCES ACROSS SAID PARCEL OF LAND OF RECORD IN BOOK 1387 AT PAGE 658 AND ACROSS SAID PRIVATE CROSS ACCESS AND PARKING EASEMENT OF RECORD AT RECEPTION NUMBER 90005701: I. S00"00'10"W A DISTANCE OF 22.00 FEET; 2. N89051'33"W A DISTANCE OF 164.42 FEET TO A POINT OF CURVATURE; 3. THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 26.00 FEET, A CENTRAL ANGLE OF 52°10'44", AN ARC LENGTH OF 22.77 FEET, THE CHORD OF WHICH BEARS S64`03'05"W A CHORD DISTANCE OF 21.99 FEET TO A POINT OF REVERSE CURVATURE; 4. THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 128.79 FEET, A CENTRAL ANGLE OF 08°16'01", AN ARC LENGTH OF 18.58 FEET, THE CHORD OF WHICH BEARS N20°36'44"W A CHORD DISTANCE OF 18.67 FEET TO A POINT OF REVERSE CURVATURE; 5. THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 126.86 FEET, A CENTRAL ANGLE OF 06°57'02", AN ARC LENGTH OF 15.39 FEET THE CHORD OF WHICH BEARS N21022'27"W A CHORD DISTANCE OF 15,38 FEET; 6. SB9"51'33"E A DISTANCE OF 196.33 FEET TO THE POINT OF BEGINNING, CONTAINING AN AREA OF 4,302 SQUARE FEET, OR 0.099 ACRES, MORE OR LESS, EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. N:TCB0254\Cadd1SurveyiLe2a IST RMAEM12.d oc PAGE 1 OF 3 F-1 1, CHARLES BERESFORD, A 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, CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 N:lFCB02WCadd4SurveylLegs ts%PRMAEM12.doc PAGE 2 OF 3 F-2 N X I � l cWn q z z n rn i Z Q m Z V�zw�z WZ�i�z Zc,¢rn. z <tN�O_F�„ — — — Wtni Z COLI�GE Al/ENUE (HIGHWAY 2$7) ... RIGHT-OF-WAY BASIS OF BEARINGS- ^— TO BE DEDICATED S 00'02'1 V E 2646.97' BY THE E. LINE NE 1/4 SEC. 23 cis' 0+ CHOIC J FINALP AT CENTER� ` OJ o a_ ( c�a a�q `� P-Z Vz PRIVATE CROSS ACCESS & PARKING EASEMENT J R. N. 90005701 I FF_ �zt W z4 z—cd J � ? a s,� a w ]�t`MUp p2'L ~OLu_j �VOSr r-F NWa Ci �UZ ui Uci r-OW a �2 U d OJU¢ W z m U ^` N U U 0 co t _ Z N CD OZQ in W -co Lo oamOLo Ul z� CN 0 �S "00 03 Z � Q¢ 2Z w N r o�ff If 11 m � z Qi c�l ODU WQ ?rre) ?r c)x_j<UU OFF $ If ui w'� O N7 }y in F- O 0 W I�j(�} CV p z 4 O� c� 0 0 (0. O N D O o- ., U 000cocci 0 0`t0) 0D0)r-, ' M ZUm Li ^SDr tpMU�N � N N Crl CV CN Ff) co Z - Woo -i a (L o Z N r) i+ N Lo '_ 0 It I[ JJJJ_..I s n 1! r i� eC i F-3 c 0 0_ U V 'O v 0 U 0 V7 0 � O W t7 m Oa�a Y W C O N w y Uo Q L QI N o cy o � m Q E W LL E Q r U N 4 0 0 I t 0 (/J N Z Z U J x U 0 Cc a � m k I EXHIBIT G ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO CROSS EASEMENT (Storage Area) LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080072453, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-112 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR SOO'02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453, FROM WHENCE SAID NORTHEAST CORNER OF SECTION 23 BEARS NO3°31'50"E A DISTANCE OF 1124.41 FEET, THENCE S89'50'61°W ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453 A DISTANCE OF 66.05 FEET TO THE POINT OF BEGINNING; THENCE S89650'51"W CONTINUING ALONG SAID SOUTH LINE THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080072453 A DISTANCE OF 39.21 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453; THENCE N00'02'18"E ALONG THE WEST LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453 A DISTANCE OF 15.35 FEET; THENCE LEAVING SAID WEST LINE THE FOLLOWING TWO (2) COURSES ACROSS SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453: 1. N89°50'51'E A DISTANCE OF 39.18 FEET; 2. S00'09'09"E A DISTANCE OF 15.35 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 601 SQUARE FEET, OR 0,014 ACRES, MORE OR LESS, EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. I, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGIS T RATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 N:1FCB02541CaddiSurveylLegalslPRMAEM07.doc PAGE 1 OF 2 G-1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. JOHNSON INVESTMENTS, INC., a Colorado corporation Cheryl Olson, Vice President Kelly C. Brown HIGHLAND PROPERTIES 711 LLC, a Colorado limited liability company By: Name: Title: IMAGO LAFAYETTE, LLC, a Colorado limited liability company Lester M. Kaplan, Manager ember HALLE PROPERTIES, L.L.C., a Colorado limited liability company B-�"� '. ' James Silhasek, Agent PJM7, LLC, a Colorado limited liability company Patrick J. McGaughran, Manager cm Q O X 3 t y ¢ drm 'w Ua WO S U W I z Z U z uJ zz am nrn cr a: zw�z I > �o�Q�� �NN�o E ZL, <(n= z -Unn¢N LIJ wuiZ¢v,: ? = ZOO -- — — — — — — co~ co COLLEGE AVENUE (HIGHWAY 287) _ trul-'p-F BASIS OF BEARINGS Z E. 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Fes- w d G-2 MOIST RECEPTION#: 20110062798, 10/14/2011 at 11:26:57 AM, 1 OF 17, R $91.00 TD Pgs: 0 Scott Doyle, Larimer County, CO FIRST AMENDMENT TO GRANT OF EASEMENT WITH COVENANTS AND RESTRICTIONS AFFECTING LAND THIS FIRST AMENDMENT TO GRANT OF EASEMENT WITH COVENANTS AND RESTRICTIONS AFFECTING LAND ("First Amendment") is made and entered into this / © day of October, 2011, by and among JOHNSON INVESTMENTS, INC., a Colorado corporation ("Johnson"), HALLE PROPERTIES, L.L.C., an Arizona limited liability company ("Halle"), and PJM7, LLC, a Colorado limited liability company ("PJM7"). RECITALS: A. Johnson is the owner of the real property legally described on Exhibit A attached hereto and incorporated herein by reference ("the Johnson Tract"). B. Johnson intends to convey a portion of the Johnson Tract to Capstone Development Corporation, an Alabama corporation ("Capstone" and "the Capstone Tract"). C. Capstone intends to re -plat the Capstone Tract as "Choice Center" ("Choice Center") and develop the Capstone Tract as a mixed use commercial and residential student housing project to be known as "the Commons." A Copy of the Choice Center Plat is attached hereto as Exhibit B and incorporated herein by reference ("the Choice Center Plat"). D. Halle is the owner of the real property legally described on Exhibit C attached hereto and incorporated herein by reference ("the Halle Tract'). E. PJM7 is the owner of the real property legally described on Exhibit D attached hereto and incorporated herein by reference ("the PJM7 Tract'). F. The Johnson Tract, the Halle Tract and the PJM7 Tract shall be referred to collectively as "the Original Johnson Property." G. Safeway Stores, Incorporated, James Johnson & Sons, Inc., a Colorado corporation, Lewis Melvin Johnson, and Cherie P. Johnson were parties to that certain "Grant of Easements with Covenants and Restrictions Affecting Land" dated August 16, 1968 and recorded September 30, 1968 in Book 1394 at page 765 and re -recorded August 20, 1981 in Book 2129 at page 0836 of the Larimer County, Colorado, records ("the 1968 Easement'). I H. Johnson, Halle, and PJM7 are the current owners of all of the real property described on Exhibit B attached to the 1968 Easement. I. Johnson, Haile, and PJM7 desire to amend and modify certain terms and provisions of the 1968 Easement. J. As a condition of approval of the Choice Center Plat, the City of Fort Collins, Colorado ("the City") is requiring PJM7 to execute, acknowledge and deliver to the City a Deed of Dedication For Easement over, across and upon the PJM7 Tract for a pedestrian and bicycle path to serve the Commons ("the Pedestrian/Bicycle Easement"). The Pedestrian/Bicycle Easement is legally described on Exhibit E attached hereto and incorporated herein by reference. L. The City is requiring that the following easements be dedicated on the Choice Center Plat: 1) A right-of-way consisting of approximately 4,882 square feet along the east boundary of Lot 3 of Choice Center adjacent to College Avenue (Highway 287) for a public sidewalk ("the Sidewalk Right -of -Way"). 2) A utility easement running east and west across Lot 3 of Choice Center ("the Utility Easement"). 3) A 44 foot wide easement for emergency access, public access, drainage and utilities to be located on Lots 3 and 4 of Choice Center ("the Public Access Easement'). N. The Pedestrian/Bicycle Easement, the Sidewalk Right -of -Way, the Utility Easement, and the Public Access Easement shall be referred to collectively as "the Easements." NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree that any interest they may have in the Original Johnson Property arising out of or by virtue of the 1968 Easement shall be and is hereby made subject, subordinate and subservient to the Easements. The Easements shall be prior and superior to any interest Johnson, Halle, and PJM7 may have in the original Johnson Property arising out of or by virtue of the 1968 Easement. The terms, covenants, conditions and provisions herein contained shall run with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the day and year first above written. K JOHNSON: JOHNSON INVESTMENTS, INC., a Colorado corporation B Cher 1 Olson, Vice President HALLE: HALLE PROPERTIES, L.L.C., a Colorado limited liability company James Silhasek, Agent PJM7 LLC, a Colorado limited liability company Patrick J. STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) Manager The foregoing instrument was acknowledged before me this OL day of October, 2011, by CHERYL OLSON, Vice President of JOHNSON INVESTMENTS, INC., a Colorado corporation Witness my hand and official My Commission Expires:([ No ry Public —�-- . 'o cv-� •.PP OF CO09 JOHNSON: JOHNSON INVESTMENTS, INC., a Colorado corporation Cheryl Olson, Vice President HALLE: HALLE PROPERTIES, L.L.C., a Colorado limited liability company /1.-lames Silhasek, Agent PJM7 LLC, a Colorado limited liability company Patrick J. McGaughran, Manager STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by CHERYL OLSON, Vice President of JOHNSON INVESTMENTS, INC., a Colorado corporation Witness my hand and official seal. My Commission Expires: Notary Public 3 STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by James Silhasek, Agent for HALLE PROPERTIES, L.L.C., a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 41*' day of October, 2011, by Patrick J. McGaughran, Manager/Member of PJM7, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: I 1 U 6'��C) BARBARA K otary Public ° OF COL�� 11 STATE OF ` y '\ a'A Lo )ss: COUNTY O ) The foregoing instrument was acknowledged before me this -) day of October, 2011, by James Silhasek, Agent for HALLE PROPERTIES, L.L.C., a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: t 20 l °„ OFFI7HELVFMMAN STEPHANOTARYPUBNotary PublicMARICOMy Comm. E) STA )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by Patrick J. McGaughran, Manager/Member of PJM7, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public 0 EXHIBIT A ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO 1968 EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HALLE PROPERTIES, L.L.C. AND PJM7, LLC (THE JOHNSON TRACT) PROPERTY TO BE CONVEYED TO CAPSTONE LEGAL DESCRIPTION A PARCEL LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23. TOWNSiD 7 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF FT. COLLINS, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION OF RECORD IN BOOK 1413 AT PAGE 863, AND BEING A PORTION OF THAT PARCEL OF LAND CONVEYED IN BOOK 1397 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS - THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23. TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, CALCULATED TO BEAR Soo°02'16'E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE THE FOLLOWING THREE (3) COURSES ALONG THE EAST LINE OF THE COLORADO & SOUTHERN RAILROAD RIGHT-OF-WAY AS ESTABLISHED BY WALLACE MUSCOTT, P.L.S. WrM THE CITY OF FT. COLLINS AND ALSO BEING THE WEST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDMSION: 1. N06°12'38"E A DISTANCE OF 267.90 FEET TO A POINT OF CURVATURE; 2, ALONG THE ARC OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4.573.35 FEET, A CENTRAL ANGLE OF 06"18-34", AN ARC LENGTH OF 503.62 FEET, THE CHORD OF WHICH BEARS N03003'21"E A CHORD DISTANCE OF 503.37 FEET; 3. N00°05'56"W A DISTANCE OF 89.61 FEET TO THE SOUTHWEST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20050079268; THENCE LEAVING SAID EAST LINE OF THE COLORADO & SOUTHERN RAILROAD AND THE WEST LINE OF SAID LOT 3 THE FOLLOWING FOUR (4) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND ALSO ALONG THE SOUTHERLY AND EASTERLY LINES OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20050079268: 1. N89.40'38"E A DISTANCE OF 55.15 FEET; 2. S45027'16"E A DISTANCE OF 67.77 FEET; 3. S81°48'40"E A DISTANCE OF 104.13 FEET; 4. N01"11'13"E A DISTANCE OF 35.13 FEET TO THE SOUTHWEST CORNER OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDMSION; THENCE S89038'48"E ALONG THE SOUTH LINE OF SAID LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 35.26 FEET; THENCE LEAVING SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION THE FOLLOWING FIVE (5) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: I. S00.07'07"E A DISTANCE OF 239.28 FEET; 2. S00°07107"E A DISTANCE OF 249.21 FEET; 3. N89"49'03"E A DISTANCE OF 104.19 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 90005700; 4. S001102118"W ALONG THE WEST LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 146.86 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700; A-1 LEGAL DESCRIPTION S. N89050'51 "E ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 105.26 FEET TO THE EAST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND BEING THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700; THENCE THE FOLLOWING FIVE (5) COURSES ALONG THE EAST LINES OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: I. S00°02'16"E A DISTANCE OF 86.39 FEET; 2. N89'57'44"E A DISTANCE OF 3.00 FEET; 3. S00002'16"E A DISTANCE OF 78.00 FEET; 4. S89057'44"W A DISTANCE OF 3.00 FEET; S. S00°02' 16"E A DISTANCE OF 36.39 FEET TO THE SOUTHEAST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE N89039'12"W ALONG THE SOUTH LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 508.65 FEET TO THE POINT OF BEGINNING A-2 LEGAL DESCRIPTION JOHNSON INVESTMENTS RETAINED PROPERTY A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND ALSO BEING A PORTION OF THAT PARCEL OF RECORD IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00°02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHEAST CORNER OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDIVISION, THENCE N89°38'48"W ALONG THE SOUTH LINE OF SAID LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 5.52 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 96079001 AND THE POINT OF BEGINNING; THENCE LEAVING SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER THE FOLLOWING SIX (6) COURSES ALONG THE WESTERLY LINES OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96079001: 1. S00°01'23"E A DISTANCE OF 69.06 FEET TO A POINT OF CURVATURE; 2. THENCE ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 602.50 FEET, A CENTRAL ANGLE OF 01 038'12", AN ARC LENGTH OF 17.21 FEET, THE CHORD OF WHICH BEARS S00047'43"W A CHORD DISTANCE OF 17.21 FEET; 3. S01 °36'49"W A DISTANCE OF 47.51 FEET; 4. S46031'40"W A DISTANCE OF 10.59 FEET; 5. S01020'31"W A DISTANCE OF 7.00 FEET; 6. S88034'02"E A DISTANCE OF 11.23 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96079001 AND BEING A POINT ON THE EAST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE THE FOLLOWING TWO (2) COURSES ALONG SAID EAST LINE OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S01 °25'44"W A DISTANCE OF 24.88 FEET; 2. S00°02'16"E A DISTANCE OF 312.34 FEET; THENCE LEAVING SAID EAST LINE OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION THE FOLLOWING TWO (2) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S89049'03"W A DISTANCE OF 209.25 FEET; 2. N00°07'07"W A DISTANCE OF 487.48 FEET TO SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE S89038'48"E ALONG SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 208.85 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 101,658 SQUARE FEET, OR 2.334 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. PAGE 1 OF 3 N:\FC60254\Choice Center\Cadd\Survey\ETIFCB0254-PRMABN02.doc A-3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. JOHNSON INVESTMENTS, INC., a Colorado corporation By: Cheryl Olson, Vice President Kelly C. Brown HIGHLAND PROPERTIES 711 LLC, a Colorado limited liability company IMAGO LAFAYETTE, LLC, a Colorado limited liability company Lester M�.Kap4an,anager ember HALLE PROPERTIES, L.L.C., a Colorado limited liability company 4 B 2,2'� James Silhasek, Agent PJM7, LLC, a Colorado limited liability company By: Patrick J. McGaughran, Manager 3 I, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 2OF3 N:\FCB0254\Choice Center\Cadd\Survey\ET\FCB0254-PRMABN02.doc E BERESFORO %REFS: 0 (m/1 0 v O c" o p Z Fo f m fA < om o ° �0Po r- Z X NAo O _= Z� Oy Tau? 4 m-+n QW ] A qOQ C A m 0 — - - ?mm I M r- M m m am-q co M m n 2 Z Fill m m � ca w m m 0 O n I i Zmo Z �o� I �� z C=Z "VZ 0o0 c 01 Zm D 20 ZN �Zm 00O0 �Z i — — Z W Z Z c, N I m' 0 0 — 0 m W N O m x0 N A Z I_ M i Z O m� m� S89'38'48"E 208.85' A m � — rn � om 0 o I_ 0 rrrrrrC — O�(rAC.IN�z n D A !n N (n (n In to m z 0 F E� OD a, SOD I ��� mo I co C U4.W�ORI m cToz -m NW?Lrn mm0 m N O co W z a r O�m mo -- f FTl f m 00 0m O vsi�p >� r N v m O o Z ~ n O PARKER STREET A' p 0 V l x 0 w o mo p .Im (� 2 D 0 S 11 II A O 0 0 j Z -y V1 II II O rn A mIn I C1 Azom 'o LZ 2 G cn0 �moD V O (,i N N ET1 4 2 fi = Z N N p 2 —CI Ao rnfn I A A vN o ym m f �0mlo W F' O r mo mN�D V = m I c0 A OR rm I N n C O Crl N D L4 m o vw m I-- O S89'49'03"W 209.25' x O m �I � Dom 00 m Z m OA �p A O A Z z y C V1=Z 40 �7 m CO 2 C = omm a2 C c� Nczio " rn m n I O ti 1 Z W ma o oF I N I a n N L y 0 I V Cc, yOm o f FUTURE STUART STREET MATHEMATICAL 2 m r0 D A EXISTING SMART STREET 1'16 CORNER rn 0 A r m r -- SMART STREET N< mZ —v"OO VIr on 50m 0> HIGHLAND c��Dmr m n a m PROPER77ES m z, m v o 0 z 0o cmoc oom 711 LLC �� ay, mm ti F A z a m m m RN 201 f 0040915 vsi O m> '� I n A 2 m Z p m m D A A r m w R O A D m�I 2� c;o v Ar, 0 D _z m2r0 2r Inv O rnn gO oiz m� mZro 00 qm NpNg p� OOOy� I C q F 0 Z A O A A V I Q N g I A A Y ~ m Z A O c lok I m — —II O 0 .. v z z z0zm 7 O J N A t �Z Pt m W ze m I An c' mtOrA X, ox ;n F. 5 N D N Z A W I EXHIBIT B ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO 1968 EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HALLE PROPERTIES, L.L.C. AND PJM7, LLC (CI401CP C FNTFT? nr AM j Ewsnllc t <. RQa :�°m�°oo>owel er �I 0 � i -- Q jji p1YYERpN.4 > ROR w J I p'+I I I ' \ IIE_ I d's9AQ -� L'N-i I i of EXISTNO ZWN0: 4G ^ C - CO ERCI& RAT OF aET,Don+D z 2-1- mnv "."L�i y I� stn a.E. `. S}� I � ,�S\ � �al>t •l{ +1�dYV. IF PLO y,'- y�F4 I�� /,�%4� 1 s $ F Ell I;?pR '€ I I I \ Ne g Q 5 Y I 1 1 I F, `\ F \ d 'Ap i is qQ x I ff4- �� tia.1 i,cg i i1i�-smzsww $w= I 4 ----- ----_ r— I of I �'I l Till r�r,.' �$' I I R Lj HIM g� . � t � I I � h � rn QQry � 1 � '�� �' 1 '� � �v"• v°� r I $ C I � Fv Z I g� > I sr al ;bi; 3g Iii �� k11 sit 9 �Rv Y p i —04 I 8 I rv 6 i I Yit M •i F I} v viun aeon IwYt— ` \ �,v�— �.I 57RET w � . .n "( rtK w.A (Y �c y(i ENSM 28NIN0: R._;w Iiii F RI �i c-ewYF�ecul --- R 5$ I R I L s ' �� A. RCS., w� NAT$sTB v, X�i'li •F�\ r: i r k r !i m[ srmuc�cwn ;sumc"ivvav 1 ■ ® o • O IFI 1 r *e .w o«.s— pppp & pe$ * CaSnNC ZONIua I'r'4 G $ �Ne .._.,,.... � .e.a `F�* �r � ems• ; 1 9 s - 8 NIiPdE'st'W ,;��i I .,vR�.c mucnt �.. '.�' LjJ,�... /� ...""'� \ a • g �^ � �1? bi �...R �, I , wm,��»-' '"3t6`YE�\\`��ri' R �.aa;�✓> \ \\ �, � E so `ECYIs-nNcar�N� 1 \ CHOICE CENTER ro� FINAL PLAT eeroYo exol eeeleo FORT COLLINS, COLORADO Lt in .,YR ONNII>ei[W, "w>"Wl,,row �ti.�w.� �,urywr= r> mwum tR awls vAc ena>cwr PRFPN= FOR 006TOW WM OPMM DATE WOUrTM OVtVti B-1 EXHIBIT C ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO 1968 EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HALLE PROPERTIES, L.L.C. AND PJM7, LLC ("the Halle Tract') A part of Lot 3, Fox Shopping Center Subdivision, City of Fort Collins, County of Larimer, State of Colorado, that begins at a point on the East line of said Lot 3 which bears S 01 °03' W 173.59 feet and again S 00°25' E 312.07 feet from the Southeast corner of Lot 2, Fox Shopping Center Subdivision and run thence S 89°32'30" W 105.40 feet; thence S 00°15'40" E 147.00 feet; thence N 89032'30" E 105.80 feet; thence N 00°25' W 147.00 feet to the point of beginning. C-1 EXHIBIT D ATTACHED TO AND MADE A PART OF FIRST AMENDMENT TO 1968 EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HALLE PROPERTIES, L.L.C. AND PJM7, LLC (PJM7 Tract) A Portion of Lot 3, Fox Shopping Center Subdivision, according to the Plat recorded July 22, 1969 in Book 1413 at Page 863, City of Fort Collins, County of Larimer, State of Colorado, which begins at the Northeast corner of said Lot 3 and runs thence S 01°03' W 495.00 feet; thence N 82°16'45" W. 104.06 feet; thence N 45138' W 68.00 feet; thence S 89°22' W 54.00 feet to a point on the West line of said Lot 3; thence N 00°38' W 244.00 feet; thence East 116.99 feet; thence N 190.00 feet; thence East 100.50 feet to the point of beginning. D-1 EXHIBIT E ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO 1968 EASEMENT BETWEEN JOHNSON INVESTMENTS, INC., HALLE PROPERTIES, L.L.CL. AND PJM7, LLC A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080030400, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00'02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT SAID NORTHEAST CORNER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6'PRINCIPAL MERIDIAN, THENCE S84°49'02"W ACROSS SAID NORTHEAST ONE -QUARTER OF SECTION 23 A DISTANCE OF 309.50 FEET TO A POINT ON THE NORTH LINE OF LOT 3, FOX SHOPPING CENTER SUBDIVISION AND THE NORTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080030400, FROM WHENCE THE NORTHEAST CORNER OF SAID LOT 3 BEARS S89°37'15"E A DISTANCE OF 4.49 FEET, AND THE POINT OF BEGINNING; THENCE LEAVING SAID NORTH LINE THE FOLLOWING FIVE (5) COURSES ACROSS SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080030400: 1. ALONG THE ARC OF A CURVE TO THE LEFT, HAVING A RADIUS OF 10.00 FEET, A CENTRAL ANGLE OF 90°04'19", AN ARC LENGTH OF 15.72 FEET, THE CHORD OF WHICH BEARS S45020'35"W A CHORD DISTANCE OF 14.15 FEET; 2. S00018'26"W A DISTANCE OF 64.41 FEET; 3. S08014'18"W A DISTANCE OF 21.74 FEET; 4. S00°18'26W A DISTANCE OF 158.23 FEET; 5. S14058'32"E A DISTANCE OF 43.20 FEET TO A POINT ON THE EAST LINE OF SAID LOT 3 OF FOX SHOPPING CENTER SUBDIVISION AND THE EAST LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080030400; THENCE S00°11'13"W ALONG SAID EAST LINE OF LOT 3 FOX SHOPPING CENTER SUBDIVISION AND ALONG THE WEST LINE OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDIVISION AND ALONG SAID EAST LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080030400 A DISTANCE OF 199.71 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080030400; THENCE N81048'40"W ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080030400 A DISTANCE OF 8.06 FEET; THENCE LEAVING SAID SOUTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080030400 THE FOLLOWING FOUR (4) COURSES ACROSS SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080030400: 1. N01°11'13"E A DISTANCE OF 10.92 FEET; 2. N90000'00"W A DISTANCE OF 40.94 FEET; 3. N65016'50"W A DISTANCE OF 70.01 FEET; 4. S44032'44"W A DISTANCE OF 12.43 FEET TO SAID SOUTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080030400; N:1FCB02541CaddtS u rvey\Legais\PRMAEM06.doe PAGE 1 OF 3 E-1 THENCE N45'27'16"W ALONG SAID SOUTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080030400 A DISTANCE OF 15.00 FEET; THENCE LEAVING SAID SOUTH LINE THE FOLLOWING NINE (9) COURSES ACROSS SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080030400: 1. N44°32'44"E A DISTANCE OF 22.97 FEET; 2. S65016'50"E A DISTANCE OF 77.26 FEET; 3. S90°00'00"E A DISTANCE OF 37.96 FEET; 4. N01°11'13"E A DISTANCE OF 164.48 FEET; 5. N14058'32"W A DISTANCE OF 50.30 FEET; 6. N00018'26"E A DISTANCE OF 160.26 FEET; 7. N08°14'18"E A DISTANCE OF 21.74 FEET; 8. N00'18'26"E A DISTANCE OF 63.75 FEET TO A POINT OF CURVATURE; 9. ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 10.00 FEET A CENTRAL ANGLE OF 89°55'41", AN ARC LENGTH OF 15.70 FEET, THE CHORD OF WHICH BEARS N44°39'25"W A CHORD DISTANCE OF 14.13 FEET TO SAID NORTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080030400 AND SAID NORTH LINE OF LOT 3 FOX SHOPPING CENTER SUBDIVISION; THENCE S89°37'15"E ALONG SAID NORTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080030400 AND SAID NORTH LINE OF LOT 3 FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 30.00 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 6,583 SQUARE FEET, OR 0.151 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. I, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 N:TC802541Cadd%Su rveylLegals%PRMAEM06.doc PAGE 2 OF 3 E-2 S I I Qi nc � 15a JZ rn W Z il (� a I Ua� OUOzO � G W .� X J � VI << cn=^o U- W z m oomcnM, w t a �O g U T W Z X O C,4 Qm w .... c Wm O WCZf7Z $ II < =co -N i I 3 L V 7rW N g .� --1 C^ V m 1-- co W < 1< o a, �, O Q O W c = Q -3C7 W w W 0 E;j O O iV CO dm ,:m O SN t,O, oLn y r- rn tn. `o. ^'n� pf"oo �oto N OO11 04 , W If � 4 1-mF M o m q -- I v I cN j z z Wuj o Umv I QN� I 'd NO�pNp�jOp'�OM� V) W o a mw� ( c,DN�MWCO-4'R���N Mw a O to W e— �? f U Z U M U1 O {L Z 333c�3 33�x 341 j JZvi J o �N w� Qaz N�NMbMQ0d��M� oao^o c mpJ W- d rOm C O v N I I to l.i co co m ;iOD ) ;! S N :�% 7' ¢ Jri toCL <000Q'}.-,oto*�d'0 a. z 0 h i O tiOOOrM0Q)COe}'ZZZ Lii•- W o w V) V) Z z Z z V) a tL a. m .. to- 2 R a g 2 .- CV I'7 s1' tt'j cp I� O .- N M � � Z J J J J J _J .J .J J J J _I _j Q aD O U') U o I I O F- M Z o u e I = JI z 0 in C'4 � NZz I Na-5 -CO O Li O 7 Cif%- �- r�cot=o0 (D. iw o o z a S yam I oJN��U00 N b0^ i� E = W X W F- NN J I— pe) W q zZc I 0w (� U—zLLJ :2Z oo �' E one z� U� _ Z u m ZZ r l aO.Uo I .- -.l N 00 d W Iq 6ti Uco 0 N c o ,05'60£ Z cNi M,,ZO,6ti.t8S AO'0� 1 -S W ONINN1038 x e $ GVOH 103dSOUd A .10 1NIOd y a W C') ayv RECEPTION#: 20110062797, 10/14/2011 at 11:24:40 AM, 1 OF 7, R $41.00 TD Pgs: 0 Scott Doyle, Larimer County, CO TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT is made and entered into this �e) day of October, 2011, by and between HALLE PROPERTIES, L.L.C., an Arizona limited liability company ("Grantor") and CAPSTONE DEVELOPMENT CORP, an Alabama corporation ("Developer"). WHEREAS, Grantor is the owner of the real property legally described on Exhibit A attached hereto and incorporated herein by reference ("the Grantor's Property"). WHEREAS, Developer is purchasing the real property lying immediately adjacent to and to the south and west of the Grantor's Property ("the Johnson Property"). WHEREAS, the most southerly boundary of the Grantor's Property is also the most northerly boundary of the Johnson Property ("the Common Boundary"). WHEREAS, upon conveyance of the Johnson Property to the Developer, the Developer will develop the Johnson Property as a mixed use residential and commercial development to be known as The Commons ("the Commons"). WHEREAS, in connection with its development of the Commons, it will be necessary for the Developer to enter upon that portion of the Grantor's Property described on Exhibit B attached hereto and incorporated herein by reference ("the Easement Premises"), and grade the Easement Premises to match the grade of the Commons at the Common Boundary ("the Work") to facilitate access to a dumpster by the Grantor, its agents, employees, and trash haulers, which dumpster is owned by the Grantor and is located within the Easement Premises. WHEREAS, Grantor is willing to grant to the Developer, its successors and assigns, a temporary construction easement ("the Easement") over and across the Easement Premises for the purpose of performing the Work. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree as follows: 1. Grantor hereby grants, bargains, sells and conveys to the Developer a non- exclusive, temporary easement over and across the Easement Premises for the purpose of performing the Work. Grantor hereby grants to the City of Fort Collins, Colorado ("the City"), its agents and employees, the right to enter upon the Easement Premises as 1 necessary from time to time to inspect the Work and perform tests on the Work. The Easement herein granted shall automatically terminate upon completion of the Work or August 31, 2014, whichever date first occurs. 2. In performing the Work, the Developer shall comply with all federal, state, county, municipal and other governmental rules and regulations applicable to the Work. 3. Upon completion of the Work, the Developer shall restore the surface of the Easement Premises to substantially the same condition as existed prior to the commencement of the Work. 4. Grantor shall not be liable to the Developer for any damage or injury to the Developer, its agents, employees, contractors and subcontractors, or the Johnson Property occasioned by any defect or defective condition on or about the Easement Premises. All claims against Grantor for any damage or injury to the Developer are expressly waived by the Developer except such damage as may be caused by the negligent or intentional acts of Grantor, its agent or employees. 5. Developer shall require that any contractors performing work on the Easement Premises shall maintain in force a policy or policies of insurance insuring Grantor against liability for injury to or death of persons or loss or damage to property occurring on or about the Easement Premises with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. Developer shall also require that its contractors performing the Work maintain and keep in force workers' compensation and other employees' insurance required by the laws of the State of Colorado. 6. Developer shall indemnify Grantor and the Grantor's Property against all claims, liens, claims of liens, demands, charges, encumbrances, or litigation arising directly or indirectly out of or by reason of the Work and shall forthwith obtain the release of any mechanics' lien or other lien recorded against the Grantor's Property as a result of the Work and shall reimburse Grantor for all loss, damage and expense, including reasonable attorneys' fees, which Grantor may incur as a result of any such claims, liens, charges or litigation. In the event the Developer shall fail to pay and fully discharge any lien or should proceedings be instituted to foreclose any lien, Grantor shall have the right, at Grantor's option, at any time after the expiration of sixty (60) days following the recording of the lien to pay the same or any portion thereof with or without the costs and expenses claimed by the lien claimant and in making such payment Grantor shall be the sole judge of the legality thereof. All amounts paid by Grantor to release any lien filed against the Grantor's Property as a result of the Work shall be reimbursed by the Developer upon demand, together with interest at the rate of twelve percent (12%) per annum. 2 STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 4t1 day of October, 2011, by Cheryl Olson as Vice President of JOHNSON INVESTMENTS, INC., a Colorado corporation. Witness my hand and official jeal. My Commission Expires: t , 'jC �C 5 STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) lic • • s 9�:.'4V� 0.00 Po F P of coVo The foregoing instrument was acknowledged before me this 41day of October, 2011, by KELLY C. BROWN. `�%tuii1111►1 Witness my hand and official seal. ; My Commission Expires: / I c' Notary Public STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 2011, by as PROPERTIES 711 LLC, a Colorado limited liability company Witness my hand and official seal. My Commission Expires: Notary Public ��� �• HAMS,% d •'t��I A R y •• 'L s O bfjB1.��' r 0 - _ day of October, of HIGHLAND 7. Developer shall defend, indemnify and hold harmless Grantor, its managers, members, agents and employees and the Grantor's Property from and against any and all loss, cost or expense arising out of any claims, demands, actions, suits or proceedings made or brought by any person or persons whatsoever by reason of any Work performed by the Developer, its contractors, subcontractors, agents or employees upon the Grantor's Property. 8. Developer shall not allow any hazardous substance to be deposited on the Easement Premises and shall defend, indemnify and hold harmless Grantor and the Grantor's Property from and against any and all loss, cost or expense incurred by Grantor as a result of any hazardous substance deposited on the Grantor's Property by the Developer, its contractors, subcontractors, agents or employees. 9. In the event of default in the performance of any of the terms or conditions of this Agreement, the party in default expressly agrees to pay all costs and expenses, including reasonable attorneys' fees incurred by the nondefaulting party in enforcing this Agreement. 10. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Grantor acknowledges and agrees that the City shall be and is hereby expressly made and designated as a third party beneficiary of this Easement and Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Temporary Construction Easement and Agreement as of the day and year first above written. GRANTOR: HALLE PROPERTIES, L.L.C., an Mzona limited liability pany ames Silhasek, Agent DEVELOPER: CAPSTONE DEVELOPMENT CORP., an Alabama corporation By: Name: z - i-grr AWg s Title:`-' 1j-u'�Vt, )',wive./(' 3 STATE OF ARIZONA ) )SS: COUNTY OF MARICOPA ) The foregoing instrument was acknowledged before me this day of October, 2011, by James Silhasek, Agent for HALLE PROPERTIES, L.L.C., an Arizona limited liability company. Witness my hand and official seal My Commission Expires: 2,k t"l 6(� Vk t •ME ,,, OFFICIAL SEAL I �''11VV0Yrr! STEPHANIE HEVIAAN Notary Pul4ic NOTARY PUBLIC • State of Arizona MARICOPA COUNTY MY Comm. Expires Feb.19, 2014 STATE OF Atn rn,rr,a )SS: COUNTY OF :Se.carso, ) The foregoing instrument was acknowledged before me this Id''- day of October, 2011, by L. as CeckiL.ic ,ytez Presozm of CAPSTONE DEVELOPMENT CORP., an Alabama corporation. Witness my hand and official seal. aaeiArso''''% My Commission Expires: ( iS,u�t at, �llI '� r—Q pIAR y -�(1Q'ri-c1- PUB0 c; Notary Public ,,�94fA S iAIt \��`� 4 EXHIBIT A ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT BETWEEN HALLE PROPERTIES, L.L.C. AND CAPSTONE DEVELOPMENT CORP. (Grantor's Property) A part of Lot 3, Fox Shopping Center Subdivision, City of Fort Collins, County of Larimer, State of Colorado, that begins at a point on the East line of said Lot 3 which bears S 01 °03' W 173.59 feet and again S 00°25' E 312.07 feet from the Southeast corner of Lot 2, Fox Shopping Center Subdivision and run thence S 89°32'30" W 105.40 feet; thence S 00°15'40" E 147.00 feet; thence N 89°32'30" E 105.80 feet; thence N 00°25' W 147.00 feet to the point of beginning. A-1 EXHIBIT B ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT (Easement Premises) LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080072453, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00°02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453, FROM WHENCE SAID NORTHEAST CORNER OF SECTION 23 BEARS NO3°31'50"E A DISTANCE OF 1124.41 FEET, THENCE S89°50'51"W ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453 A DISTANCE OF 66.05 FEET TO THE POINT OF BEGINNING; THENCE S89°50'51"W CONTINUING ALONG SAID SOUTH LINE THAT PARCEL OF RECORD AT RECEPTION NUMBER 20080072453 A DISTANCE OF 39.21 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453; THENCE N00`02'18"E ALONG THE WEST LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453 A DISTANCE OF 15.35 FEET; THENCE LEAVING SAID WEST LINE THE FOLLOWING TWO (2) COURSES ACROSS SAID PARCEL OF RECORD AT RECEPTION NUMBER 20080072453: 1, N89°50'51"E A DISTANCE OF 39.16 FEET; 2. S00009'09'E A DISTANCE OF 15.35 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 601 SQUARE FEET, OR 0.014 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. 1, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 N:TCB0254%CaddlSurvey%LegalsWRMAEM07.doc PAGE 1 OF 2 B-1 Z Mwa 0 JQa M C14 x = O x U �m < " ( = O U1 _z V m � Q_ W vi:''' i z Ix U ^ � U O Q N N Z a^ O WZJI—u� 22 zwQcn: z "Wz_j � COLLEGE AVENUE (HIGHWAY 287) BASIS OF BEARINGS t�• S 00'02'16" E 2646.97' >Og t*£�N E. LINE NE 23 POINT OF COMMENCEMENT ul O Z pp J 1_ Z QJ?p ZO xa�o am CL `~ 14- J J z Q ix `-4 W a ~ J � U Q J = W U I I O N M , M ui ai ui co M M 33WWW 21!6 �Wa to Mtn: -NO _jV¢ w W p O N 0 59 a) 9PQ =� < (7) 0 0m 0 c�0 F- 00 00 0 00 O (nNZZ(ll II W 99CV t74tn JJJJJJ _ _ r 0 c 0 a U u a N W I N U •o_ u a O « T 0 CA U) a Ja c O ,c ay O _« U T W Q N `r u O +' o u 0 0 W E w o w � � u Q N 13 u N � O« to O c W Z d a0 c� a J X 0 u I N N W Z11 Oc ) 1—ca IL cc v ac W Q w0 OP Ul W JZ 00 a "-> cr Q m� V XO WW B-2 RECEPTION#: 20110062796, 10/14/2011 at 11:22:50 AM, 1 OF 9, R $51.00 TD Pgs: 0 Scott Doyle, Larimer County, CO TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT is made and entered into this . day of October, 2011, by and between KELLY C. BROWN ("Grantor"); and CAPSTONE DEVELOPMENT CORP, an Alabama corporation ("Developer"). WHEREAS, Grantor owns the real property which is legally described on Exhibit "A" attached hereto and incorporated herein by reference ("the Exhibit A Property"). WHEREAS, Grantor also owns the real property which is legally described on Exhibit `B" attached hereto and incorporated herein by reference ("the Exhibit B Property"). WHEREAS, Grantor intends to convey the Exhibit B Property to the Developer which intends to develop the Exhibit B Property, together with certain other real property, as a mixed use residential and commercial development to be known as The Commons ("the Commons"). WHEREAS, in connection with its development of the Commons, it will be necessary for the Developer to enter upon the portion of the Exhibit A Property which is described on Exhibit "C" attached hereto and incorporated herein by reference ("the Easement Premises") to construct and install a new storm sewer line, and if required by the City of Fort Collins ("the City"), to remove the existing storm sewer line (the "Work"). WHEREAS, Grantor is willing to grant to the Developer, its successors and assigns, a temporary construction easement ("the Easement") over and across the Easement Premises for the purpose of performing the Work. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree as 'nit, follows: > CA 1. Grantor hereby grants, bargains, sells and conveys to the Developer a non- r _ exclusive, temporary easement over and across the Easement Premises for the purpose of j Ig, performing the Work. Grantor hereby grants to the City, its agents and employees, the C right to enter upon the Easement Premises as necessary from time to time to inspect the Work and perform tests on the Work. The Easement herein granted shall automatically terminate upon the first to occur of (i) Developer's failure to acquire ownership of the 10/3/2011 1 Exhibit B Property from Grantor on or before December 9, 2011; (ii) completion of the Work by Developer; or (iii) August 31, 2014. 2. In performing the Work, the Developer shall comply with all federal, state, county, municipal and other governmental rules and regulations applicable to the Work. 3. Upon completion of the Work, the Developer shall restore the surface of the Easement Premises to substantially the same condition as existed prior to the commencement of the Work. 4. Grantor shall not be liable to the Developer for any damage or injury to the Developer, its agents, employees, contractors and subcontractors, or the Exhibit A Property occasioned by any defect or defective condition on or about the Easement Premises. All claims against Grantor for any damage or injury to the Developer are expressly waived by the Developer except such damage as may be caused by the negligent or intentional acts of Grantor, its agent or employees. 5. Developer shall require that any contractors performing work on the Easement Premises shall maintain in force a policy or policies of insurance insuring Grantor against liability for injury to or death of persons or loss or damage to property occurring on or about the Easement Premises with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. Developer shall also require that its contractors performing the Work maintain and keep in force workers' compensation and other employees' insurance required by the laws of the State of Colorado. 6. Developer shall indemnify Grantor and the Exhibit A Property against all claims, liens, claims of liens, demands, charges, encumbrances, or litigation arising directly or indirectly out of or by reason of the Work and shall forthwith obtain the release of any mechanics' lien or other lien recorded against the Exhibit A Property as a result of the Work and shall reimburse Grantor for all loss, damage and expense, including reasonable attorneys' fees, which Grantor may incur as a result of any such claims, liens, charges or litigation. In the event the Developer shall fail to pay and fully discharge any lien or should proceedings be instituted to foreclose any lien, Grantor shall have the right, at Grantor's option, at any time after the expiration of sixty (60) days following the recording of the lien to pay the same or any portion thereof with or without the costs and expenses claimed by the lien claimant and in making such payment Grantor shall be the sole judge of the legality thereof. All amounts paid by Grantor to release any lien filed against the Exhibit A Property as a result of the Work shall be reimbursed by the Developer upon demand, together with interest at the rate of twelve percent (12%) per annum. 7. Developer shall defend, indemnify and hold harmless Grantor, its managers, members, agents and employees and the Exhibit A Property from and against 10/3/2011 2 any and all loss, cost or expense arising out of any claims, demands, actions, suits or proceedings made or brought by any person or persons whatsoever by reason of any Work performed by the Developer, its contractors, subcontractors, agents or employees upon the Exhibit A Property. 8. Developer shall not allow any hazardous substance to be deposited on the Easement Premises and shall defend, indemnify and hold harmless Grantor and the Exhibit A Property from and against any and all loss, cost or expense incurred by Grantor as a result of any hazardous substance deposited on the Exhibit A Property by the Developer, its contractors, subcontractors, agents or employees. 9. In the event of default in the performance of any of the terms or conditions of this Agreement, the party in default expressly agrees to pay all costs and expenses, including reasonable attorneys' fees incurred by the nondefaulting party in enforcing this Agreement. 10. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Grantor acknowledges and agrees that the City shall be and is hereby expressly made and designated as a third party beneficiary of this Easement and Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Temporary Construction Easement and Agreement as of the day and year first above written. GRANTOR: DEVELOPER: CAPSTONE DEVELOPMENT CORP., an Alabama corporation Y j�Name: sa ate, to of `►Title: G • S6 10/3/2011 3 STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 3,t k day of Octob( 2011, by KELLY C. BROWN. u9Ilc Witness my hand and official seal. My Commission Expires: (�) I at ! ""(:) 0 ! -2 ---- ` � ' � `�rgTE•Ofr GC Notary Public STATE OF rLyY1C� ) ss. COUNTYOF ) The foregoing instrument was acknowledged before me this I C day of October, 2011, by L-a-(4 -Jon•es as (xecuy -Vjci Pvjtden,, of CAPSTONE DEVELOPMENT CORP., an Alabama corporation. OIE Ro,91 Witness my hand and official seal. NOTA'?k My Commission Expires:ra- v PUBLIC STATE �I Notary Public 10/3/2011 4 EXHIBIT "A" ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT BETWEEN KELLY C. BROWN ("GRANTOR") AND CAPSTONE DEVELOPMENT CORP. ("DEVELOPER") Exhibit A Property A parcel of land situated in the Northeast one -quarter of Section 23, Township 7 North, Range 69 West of the 6th Principal Meridian, Larimer County, Colorado, and being a portion of Lot 2, Spring Court Subdivision and also being a portion of that parcel of record at Reception Number 96064964, records of the Recorder's Office Larimer County, Colorado, being more particularly described as follows: Basis of Bearings The East line of the Northeast one -quarter of Section 23, Township 7 North, Range 69 West of the 6th Principal Meridian, being monumented at the Northeast corner of said Section 23 by a found 3 inch aluminum cap stamped "LS 17497, 1991" in a monument box, and at the East one - quarter corner of said Section 23 by a found 2-1/2 inch aluminum cap stamped "LS 17497, 1991" in a monument box, calculated to bear S00°02' 16"E with all bearings contained herein relative thereto. Beginning at a point on the West right of way line of College Avenue (right-of-way varies) and being a point on the South line of said Lot 2, Spring Court Subdivision, from whence said East 1/4 corner of Section 23 bears S03°34'25"E a distance of 1,062.49 feet; Thence N89°40' 16"W along the South line of said Lot 2, Spring Court Subdivision and along the South line of said parcel of record at Reception Number 96064964 a distance of 234.42 feet: Thence leaving said South line of Lot 2, Spring Court Subdivision and leaving said South line of that parcel of record at Reception Number 96064964, the following four (4) courses across said parcel of record at Reception Number 96064964: 1. N00°23'51"E a distance of 138.83 feet to the North line of said Lot 2, Spring Court Subdivision; 2. S89°37'11"E along said North line of Lot 2, Spring Court Subdivision, a distance of 101.90 feet; 3. S53°53' 16"E continuing along said North line of Lot 2, Spring Court Subdivision, a distance of 23.94 feet; 4. N88°31'58"E continuing along said North line of Lot 2, Spring Court Subdivision, a distance of 110.05 feet to a point on said West right of way line of College Avenue (right-of-way varies); Thence S00°58'52"E along said West right of way line of College Avenue a distance of 128.23 feet to the Point of Beginning, commonly known as 1805 South College Avenue, Fort Collins, CO 80525. 10/3/2011 A-1 STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by Lester M. Kaplan, Manager/Member of IMAGO LAFAYETTE, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by James Silhasek, Agent for FIALLE PROPERTIES, L.L.C., a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 45 day of October, 2011, by Patrick J. McGaughran, Manager of PJM7, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: It " BARBARA K REED Public V-121 .. V COLp� 5 EXHIBIT `B" ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT BETWEEN KELLY C. BROWN ("GRANTOR") AND CAPSTONE DEVELOPMENT CORP. ("DEVELOPER") Exhibit B Propert Parcel I: Lot 1-B, Replat of a Part of Lot 1 of the Spring Court Subdivision, City of Fort Collins, County of Larimer, State of Colorado. Parcel II: A portion of Lot 2, Spring Court Subdivision, being more particularly described as follows, to -wit: considering the South line of said Lot 2 as bearing S 89°57'00" W and with all bearings contained herein relative thereto, is contained within the boundary lines which begin at the Southwest corner of said Lot 2, and run thence along the West line of said Lot 2, N 05°48'00" E 139.71 feet; thence along the North Line of said Lot 2, N 90000'00" E 294.39 feet; thence departing said North line, S 00°00'00" E 138.72 feet to a point on the South line of said Lot 2; thence along said South line, S 89°57'00" W 308.51 feet to the point of beginning, City of Fort Collins, County of Larimer, State of Colorado. 10/3/2011 B-1 EXHIBIT "C" ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT BETWEEN KELLY C. BROWN ("GRANTOR") AND CAPSTONE DEVELOPMENT CORP. ("DEVELOPER") Exhibit C Property LEGAL DESCRIPTION A VARIABLE WIDTH STRIP OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 2, SPRING COURT SUBDIVISION AND BEING A PORTION OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 96064964, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 199V IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00002'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 2, SPRING COURT SUBDIVISION, FROM WHENCE SAID EAST 1/4 CORNER OF SECTION 23 BEARS S03'34'25"E A DISTANCE OF 1,062.49 FEET; THENCE N89040'16"W ALONG THE SOUTH LINE OF SAID 2, SPRING COURT SUBDIVISION AND ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96064964 A DISTANCE OF 42.54 FEET TO THE POINT OF BEGINNING: THENCE N89'40'16"W CONTINUING ALONG SAID SOUTH LINE OF LOT 2, SPRING COURT SUBDIVISION AND CONTINUING ALONG SAID SOUTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 96064964 A DISTANCE OF 51.68 FEET; THENCE LEAVING SAID SOUTH LINE OF SAID LOT 2, SPRING COURT SUBDIVISION THE FOLLOWING FOUR (4) COURSES AND DISTANCES ACROSS SAID LOT 2, SPRING COURT SUBDIVISION AND ACROSS SAID PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 96064964: 1. N25'51'51"W A DISTANCE OF 16.45 FEET; 2. N89036'51"W A DISTANCE OF 20.74 FEET; 3. N68'35'21"W A DISTANCE OF 28.38 FEET; 4. N00034'58"E A DISTANCE OF 113.66 FEET TO THE NORTH LINE OF SAID LOT, 2, SPRING COURT SUBDIVISION AND THE NORTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 96064964; THENCE THE FOLLOWING THREE (3) COURSES AND DISTANCES ALONG SAID NORTH LINE OF LOT 2, SPRING COURT SUBDIVISION AND ALONG SAID NORTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 96064964; I. S89'37'11"E A DISTANCE OF 15.90 FEET; 2. S53'53'16"E A DISTANCE OF 23.94 FEET; 3. N88'31'58"E A DISTANCE OF 14.62 FEET; THENCE LEAVING SAID NORTH LINE OF LOT 2, SPRING COURT SUBDIVISION AND SAID NORTH LINE OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 96064964 THE FOLLOWING THREE (3) COURSES AND DISTANCES ACROSS SAID LOT 2, SPRING COURT SUBDIVISION AND ACROSS SAID PARCEL OF RECORD AT RECEPTION NUMBER 96064964: 1. S00'34'58"W A DISTANCE OF 65.86 FEET; 2. S68'35'21"E A DISTANCE OF 35.71 FEET,- 3. S25'44'29"E A DISTANCE OF 51.65 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 8,001 SQUARE FEET, OR 0.184 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. PAGE 1 OF 3 N,1FC802541Cadd\Survey�LegalsIPRMAEMI4 REV1 doc 1, CHARLES BERESFORD, A 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. :� •tiS BER •'• F � F c��o9 � 24'so9 Arrw� O. UHAKLt6 BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 2OF3 N;1FCB0254\Cadd\Survey\Legals\PRMAEMI4 REV1.doc to N x O �m N Q 0) W U U W Z Z O p a 0 w— LLI oto?a ^ o UDOQ —� ZL Q<0 JZ I � W W I- W F- W M cn w W Q N I u- I in 00 cD ��(Np o cD rn LocpOC'4 �(D(� 3 W W W W W CD c a (D W (X3 N (nLoN J0 CD nr�fn.-�tC) cr famLommmnMOMN - CO N m co M Lo CO 0 to zzzzcnc zwo W z Nt;i4Lii6 0 J J J J J J J J J J J BASIS OF BEARINGS S 00'02'16" E 2646.97' E. LINE NE 1 /4 SEC. 23 COLLEGE AVENUE (HIGHWAY 287) N F z d �afZ O� u� 00 �� Wp0— mo Lo rn JO Z�-j OZM > ¢X.JO =0_ �'C`O �Z wQ� 0 0� 0 0Ul W Y =a ¢ v Z J J O Ln Q I ,99'2 l l ¢ a o o 3„85,tC-00N I "-r-v_5 F 000 FD O JZm J Q 0= D J CL in w D: N O ~ ckf 2�_ Z Qf Z ma -0 W0� O0Ln OZm O00ZE J ( n J a� O a cn a W w ¢ ~ C � N ul ww W O Z ¢ J � WTI 3 r- ul `L O Lnm l f (O � O V) (V rn d' X _ ° O U C_ m W z¢ �H- Z N U Z Ld O �m Do (31 N114 ZLLJ CL n Z O U O O Q N m W Z JH J (aJ V) w ¢ W. ? i�D. Pq o 106� a F- Z W 2 Li w U OZ � W Z J oz 0 0 Z zo OW a_m Z O � O c 00 (D N 0 0 n 0 « ON ON U) � 01 r- 00 f- Co 0)Z WO:4h¢O:*tt W L-OJ O J U ¢ > 7 Z Z V 0 U)V xof o ckf r- 0 U 0 Q CL O m O E O W :3 O W L w W O ¢ c ,y c d N N U O m _ a c o �I O O � C Z of n Z O .a p J w x X O U N ¢ L a F- w � z co m D =o �m p 0 04 m Z C z W W � O� t aQco V nr W 00 a W0 oP: W �� Qc Z W JZ o 5/� 0U us aL L 2 U =O J.m UO IL RECEPTION#: 20110062795, 10114/2011 at 11:20:14 AM, 1 OF 13, R $71.00 TD Pgs: 0 Scott Doyle, Larimer County, CO TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT is made and entered into this I$ day of October, 2011, by and between HIGHLAND PROPERTIES 711 LLC, a Colorado limited liability company ("Grantor"); CAPSTONE DEVELOPMENT CORP, an Alabama corporation ("Developer"); and IMAGO LAFAYETTE, LLC, a Colorado limited liability company ("Lender") . WHEREAS, Grantor is the owner of the real property legally described on Exhibit A attached hereto and incorporated herein by reference ("the Grantor's Property"). WHEREAS, the Developer intends to acquire the real property legally described on Exhibit B attached hereto and incorporated herein by reference ("the Johnson Property") and to develop the Johnson Property as a mixed use residential and commercial development to be known as "the Commons". WHEREAS, in connection with its development of the Johnson Property, it will be necessary for the Developer to enter upon that portion of the Grantor's Property described on Exhibit C attached hereto and incorporated herein by reference ("the Easement Premises"), to construct and install a new 42 inch storm sewer line within an existing public utility easement crossing the Grantor's Property and, if required by the City of Fort Collins, remove the existing storm sewer line ("the Work"). WHEREAS, Grantor is willing to grant to the Developer, its successors and assigns, a temporary construction easement ("the Temporary Construction Easement") over and across the Easement Premises for the purpose of performing the Work. WHEREAS, Lender is the beneficiary of a deed of trust representing a first lien against the Grantor's Property ("the Deed of Trust"). WHEREAS, Lender is willing to subordinate the priority of the Deed of Trust to this Temporary Construction Easement. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree as follows: 1. Grantor hereby grants, bargains, sells and conveys to the Developer, its successors and assigns, a non-exclusive, temporary construction easement over, across and upon the Easement Premises for the purpose of performing the Work. This Temporary Construction Easement shall be appurtenant to the Johnson Property. Grantor and Developer hereby grant to the City of Fort Collins, Colorado, ("the City") its agents and employees, the right to enter upon the Easement Premises as necessary from time to time to inspect the Work and perform tests on the Work. The Temporary Construction Easement herein granted shall automatically terminate upon completion of the Work or December 31, 2011, whichever date first occurs. 2. The Deed of Trust shall be and is hereby made subject, subordinate and subservient to this Temporary Construction Easement. This Temporary Construction Easement shall be prior and superior to the lien of the Deed of Trust until this Temporary Construction Easement terminates. 3. In performing the Work, the Developer shall comply with all federal, state, county, municipal and other governmental rules and regulations applicable to the Work. 4. Upon completion of the Work, the Developer shall restore the surface of the Easement Premises to substantially the same condition as existed prior to the commencement of the Work. 5. Grantor shall not be liable to the Developer for any damage or injury to the Developer, its agents, employees, contractors and subcontractors, occasioned by any defect or defective condition on or about the Easement Premises. All claims against Grantor for any damage or injury to the Developer, its agents, employees, contractors, or subcontractors are expressly waived by the Developer except such damage as may be caused by the negligent or intentional acts of Grantor, its agent or employees. 6. Developer shall require that any contractors performing work on the Easement Premises shall maintain in force a policy or policies of insurance insuring Developer and Grantor against liability for injury to or death of persons or loss or damage to property occurring on or about the Easement Premises with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate. Developer shall also require that its contractors performing the Work maintain and keep in force workers' compensation and other employees' insurance required by the laws of the State of Colorado. 7. Developer shall indemnify Grantor and the Grantor's Property against all claims, liens, claims of liens, demands, charges, encumbrances, or litigation arising directly or indirectly out of or by reason of the Work and shall forthwith obtain the release of any mechanics' lien or other lien recorded against the Grantor's Property as a result of the Work and shall reimburse Grantor for all loss, damage and expense, including reasonable attorneys' fees, which Grantor may incur as a result of any such claims, liens, charges or litigation. In the event the Developer shall fail to pay and fully discharge any lien or should proceedings be instituted to foreclose any lien, Grantor shall 2 have the right, at Grantor's option, at any time after the expiration of sixty (60) days following the recording of the lien to pay the same or any portion thereof with or without the costs and expenses claimed by the lien claimant and in making such payment Grantor shall be the sole judge of the legality thereof. All amounts paid by Grantor to release any lien filed against the Grantor's Property as a result of the Work shall be reimbursed by the Developer upon demand, together with interest at the rate of twelve percent (12%) per annum. 8. Developer shall defend, indemnify and hold harmless Grantor, its managers, members, agents and employees and the Grantor's Property from and against any and all loss, cost or expense arising out of any claims, demands, actions, suits or proceedings made or brought by any person or persons whatsoever by reason of any Work performed by the Developer, its contractors, subcontractors, agents or employees upon the Grantor's Property. 9. Developer shall not allow an y hazardous substance to be deposited on Grantor's Property and shall defend, indemnify and hold harmless Grantor and the Grantor's Property from and against any and all loss, cost or expense incurred by Grantor as a result of any hazardous substance deposited on the Grantor's Property by the Developer, its contractors, subcontractors, agents or employees. 10. In the event of default in the performance of any of the terms or conditions of this Agreement, the party in default expressly agrees to pay all costs and expenses, including reasonable attorneys' fees incurred by the nondefaulting party in enforcing this Agreement. 11. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The Grantor and the Developer acknowledge and agree that the City shall be and is hereby expressly made and designated as a third party beneficiary of this Easement and Agreement. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have executed this Temporary Construction Easement and Agreement as of the day and year first above written. GRANTOR: HIGHLAND PROPERTIES 711, LLC, a Colorado limited liability company By: Name: �a..vq Title: j3p"-a_,4L4 , V�lte �'t ass erL DEVELOPER: CAPSTONE DEVELOPMENT CORP., an Alabama corporation By:_ Name: Title: LENDER: IMAGO LAFAYETTE, LLC, a Colorado limited liability company By: Lester M. Kaplan, Managge$�� S IN WITNESS WHEREOF, the parties hereto have executed this Temporary Construction Easement and Agreement as of the day and year first above written. GRANTOR: HIGHLAND PROPERTIES 711, LLC, a Colorado limited liability company By:_ Name: Title: DEVELOPER: CAPSTONE DEVELOPMENT CORP., an Alabama corporation By: - -= ---- Na ��✓as Title: l xic&tv4rL j/,�, QisrOs„ ' LENDER: IMAGO LAFAYETTE, LLC, a Colorado limited liability company 0 Lester M. Kaplan, Manager STATE OF COLORADO ) )SS: COUNTY OF LARIMER ) The forego•ng instrum t w ac ledged before me this 2011, by as HIGHLAND PRO ERTI(S 711 LLC, a Colorado limited lia ilit c Y Witness my hand and official seal My Commission Expires: i STATE OF ALABAMA ) )SS: COUNTY OF 1 The foregoing instrument was acknowledged before me this October, 2011, by as CAPSTONE DEVELOPMENT CORP., an Alabama corporation. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF COLORADO ) )SS: COUNTY OF LARIMER ) day Af October, 4.••'OTAq••.O 9• 'OUBUG••PP� ,mission ExP�re52,,�\� day of of The foregoing instrument was acknowledged before me this Z/— day of October, 2011, by Lester M. Kaplan, Manager of IMAGO LAFAYETTE, LLC, a Colorado limi.W,4 liability company. Witness my hand and official seal My Commission Expires: W1 STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by Lester M. Kaplan, Manager/Member of IMAGO LAFAYETTE, LLC, a Colorado limited liability compa—, Witness my hand and offs My Commission Expires: STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by James SiIhasek, Agent for HALLE PROPERTIES, L.L.C., a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this 45-1�" day of October, 2011, by Patrick J. McGaughran, Manager of PJM7, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: ((", otary Public 5 ��PFz,Y Pv��i BARBARA K REED 9���F CC}La�U STATE OF COLORADO ) )SS: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by as of HIGHLAND PROPERTIES 711 LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF ALABAMA ) )SS: COUNTY OF ) The foregoing instrument was acknowledged before me this /0701 day of October, 2011, by L. fit= J-,04neS as &,r(uhyC Y, 1�1-01dep)l' of CAPSTONE DEVELOPMENT CORP., an Alabama corporation. R08/� Witness my hand and official seal. My Commission Expires:JgMA,, 'Zo 1•a- kAOTARk Notary Public ,,��'�4 sTTE P��p�``�� STATE OF COLORADO ) �ST ATIE )SS: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by Lester M. Kaplan, Manager of IMAGO LAFAYETTE, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public EXHIBIT A ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT BETWEEN HIGHLAND PROPERTIES 711 LLC, CAPSTONE DEVELOPMENT CORP. AND IMAGO LAFAYETTE, LLC (Grantor's Property) Lot 1-A, Replat of Part of Lot 1 of the Spring Court Subdivision, City of Fort Collins, County of Larimer, State of Colorado; commonly known as 1801 South College Avenue, Fort Collins, CO 80525. A-1 EXHIBIT B ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT BETWEEN HIGHLAND PROPERTIES 711, LLC, CAPSTONE DEVELOPMENT CORP. AND IMAGO LAFAYETTE, LLC. (JOHNSON PROPERTY) LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF FT. COLLINS, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION OF RECORD IN BOOK 1413 AT PAGE 863, AND BEING A PORTION OF THAT PARCEL OF LAND CONVEYED IN BOOK 1387 AT PAGE 658, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS - THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A RANGE BOX, CALCULATED TO BEAR S00°02'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE THE FOLLOWING THREE (3) COURSES ALONG THE EAST LINE OF THE COLORADO & SOUTHERN RAILROAD RIGHT-OF-WAY AS ESTABLISHED BY WALLACE MUSCOTT, P.L.S. WITH THE CITY OF FT. COLLINS AND ALSO BEING THE WEST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDMSION: 1. N06012'38"E A DISTANCE OF 267,90 FEET TO A POINT OF CURVATURE; 2. ALONG THE ARC OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 4,573.35 FEET, A CENTRAL ANGLE OF 06° 18'34", AN ARC LENGTH OF 503.62 FEET, THE CHORD OF WHICH BEARS NO3°03'21"E A CHORD DISTANCE OF 503.37 FEET; 3. N00005'56"W A DISTANCE OF 89.61 FEET TO THE SOUTHWEST CORNER OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20050079268; THENCE LEAVING SAID EAST LINE OF THE COLORADO & SOUTHERN RAILROAD AND THE WEST LINE OF SAID LOT 3 THE FOLLOWING FOUR (4) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION AND ALSO ALONG THE SOUTHERLY AND EASTERLY LINES OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 20050079268: 1. N89°40'38"E A DISTANCE OF 55.15 FEET; 2. S45027'16"E A DISTANCE OF 67.77 FEET; 3. S81°48'40"E A DISTANCE OF 104.13 FEET; 4, NOl°11'l3"E A DISTANCE OF 35.13 FEET TO THE SOUTHWEST CORNER OF LOT 2 OF SAID FOX SHOPPING CENTER SUBDMSION; THENCE S89°38'48"E ALONG THE SOUTH LINE OF SAID LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 35.26 FEET; THENCE LEAVING SAID SOUTH LINE OF LOT 2 OF THE FOX SHOPPING CENTER SUBDIVISION THE FOLLOWING FIVE (5) COURSES ACROSS SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: 1. S00°07'07"E A DISTANCE OF 239.28 FEET; 2, SOO°07'07"E A DISTANCE OF 248.21 FEET; 3, N89°49'03"E A DISTANCE OF 104.18 FEET TO THE NORTHWEST CORNER OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 90005700; 4. S00°02'18"W ALONG THE WEST LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 146.86 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700; LEGAL DESCRIPTION 5. N89°50'51"E ALONG THE SOUTH LINE OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700 A DISTANCE OF 105.26 FEET TO THE EAST LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDMSION AND BEING THE SOUTHEAST CORNER OF SAID PARCEL OF RECORD AT RECEPTION NUMBER 90005700; THENCE THE FOLLOWING FIVE (5) COURSES ALONG THE EAST LINES OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION: I. S00°02'16"E A DISTANCE OF 86.39 FEET; 2. N89°57'44"E A DISTANCE OF 3.00 FEET; 3. S00002'16"E A DISTANCE OF 78.00 FEET; 4. S89°57'44"W A DISTANCE OF 3.00 FEET; 5. S00°02' 16"E A DISTANCE OF 36.39 FEET TO THE SOUTHEAST CORNER OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION; THENCE N89039'12"W ALONG THE SOUTH LINE OF SAID LOT 3 OF THE FOX SHOPPING CENTER SUBDIVISION A DISTANCE OF 508.65 FEET TO THE POINT OF BEGINNING EXHIBIT C ATTACHED TO AND MADE A PART OF THE TEMPORARY CONSTRUCTION EASEMENT AND AGREEMENT BETWEEN HIGHLAND PROPERTIES 711 LLC, CAPSTONE DEVELOPMENT CORP. AND IMAGO LAFAYETTE, LLC LEG*EeDE'9G iPstlON A VARIABLE WIDTH STRIP OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND BEING A PORTION OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991" IN A MONUMENT BOX, CALCULATED TO BEAR S00002'16"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. COMMENCING AT A POINT ON THE SOUTH LINE OF STUART STREET AND BEING THE NORTHEAST CORNER OF SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION, FROM WHENCE SAID NORTHEAST CORNER OF SECTION 23 BEARS N03030'36"E A DISTANCE OF 1,357.18 FEET; THENCE N89035'16"W ALONG SAID SOUTH LINE OF STUART STREET AND ALONG THE NORTH LINE OF SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION A DISTANCE OF 103.35 FEET TO THE POINT OF BEGINNING: THENCE LEAVING SAID SOUTH LINE OF STUART STREET THE FOLLOWING EIGHT (8) COURSES AND DISTANCES ACROSS SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND ACROSS SAID PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915: 1 S00034'58'VV A DISTANCE OF 16.77 FEET; 2. S90000'00"E A DISTANCE OF 10.61 FEET; 3. S01 °29'22"E A DISTANCE OF 30.01 FEET; 4. N90000'00"W A DISTANCE OF 11.70 FEET; 5. S00°34'58"W A DISTANCE OF 28.47 FEET; 6. N88°21'09"E A DISTANCE OF 12.72 FEET; 7. S01 °29'22"E A DISTANCE OF 24.00 FEET; 8. S88021'09"W A DISTANCE OF 13.90 FEET TO THE SOUTH LINE OF SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND BEING THE SOUTH LINE OF SAID PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915; THENCE THE FOLLOWING TWO (2) COURSES AND DISTANCES ALONG SAID SOUTH LINE OF LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND ALONG SAID SOUTH LINE OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915; 1_ N53°53'16"W A DISTANCE OF 10.18 FEET; 2. N89037'11"W A DISTANCE OF 33.40 FEET, - N:\FCB0254\Cadd\Survey\Legals\PRMAEMI3 REV1.doc PAGE 1 OF 3 C-1 THENCE LEAVING SAID SOUTH LINE OF LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION THE FOLLOWING TWO (2) COURSES AND DISTANCES ACROSS SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND ACROSS SAID PARCEL OF LAND OF RECEPTION NUMBER 20110040915: RECORD AT 1. N00034'58"E A DISTANCE OF 46.27 FEET; 2. N90'00'00"W A DISTANCE OF 68.70 FEET TO THE WEST LINE OF SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND THE WEST LINE OF SAID PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915; THENCE N00023'51"E ALONG SAID WEST LINE OF SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND ALONG SAID WEST LINE OF SAID PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915 A DISTANCE OF 30.00 FEET; THENCE LEAVING SAID WEST LINE OF LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION THE FOLLOWING TWO (2) COURSES AND DISTANCES ACROSS SAID LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND ACROSS SAID PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915: 1. S90000'00"E A DISTANCE OF 68.79 FEET; 2. N00°34'58"E A DISTANCE OF 17.07 FEET TO A POINT ON SAID NORTH LINE OF LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND ON THE NORTH LINE OF SAID PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915: THENCE S89°35'16"E ALONG SAID NORTH LINE OF LOT 1-A, REPLAT OF A PART OF LOT 1, SPRING COURT SUBDIVISION AND ALONG SAID NORTH LINE OF THAT PARCEL OF LAND OF RECORD AT RECEPTION NUMBER 20110040915 A DISTANCE OF 42.00 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 6,659 SQUARE FEET, OR 0.153 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. I, CHARLES BERESFORD, A 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. r V��•�•••••,� Sys .O�':'S6ERF•• � CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 N:lFC80254\Cadd\Survey\Legals\PRMAEMI3 REV1.doc PAGE 2OF3 C-2 r __ �. oi�aomi�o NOOm4N Ot\OO c0O t�OO) 17 fficDco000t-�c� (fl 6 C5 co 4 ri 0 r7 rn N X r7 N W W W W W W W W W o rnm co0cl,0 MNm(DLoOtf)0u")co < t- �=U �w 0ONNP - W 1-0d 0114�•-r'7Mr ONO ZZm0rn m!`�ONO:�NNN;n00000O �-omom0000oot.C)ZZZZmzm OrnZ ,-�O U ,m : 0(n0Z0Z0cnZ o D ¢ v) ZLL,<(nnJ? W Z_ Nr� �LH6rzf cb6i NM.d-�cD J J J J _J _I J _I J J J _J J J _1 _7 ___I z w w Li U OZ W �-- :2 z 00 WU 3 cp � M r) w00 o OZz H Z Z O N a. m IJ J cD J W P5 N L0 F- J d J R V) BASIS OF BEARINGS S 00'02'16" E 2646.97' E. LINE NE 1/4 SEC. 23 COLLEGE AVENUE (HIGHWAY 287) 0 0 w wz ¢¢ D O N W U O a•-Ocn - <of -op J W H > W OQ '-m =�r(V O- c W of JJj L3 1 I � L7 Z L L N 1 L N co z O00 0d- O U o Z U o U OZm } wc� 0(A 00 V) N CV w W W Z F- of JO x 0_ z m¢ 00 DON n wn Qo I a- F- W^ Z�5 F 00 JZco O_Zm (nY OI O �0 ~�O crm V) �O < 2 Ln O m a N W cr ¢ 2 co cn X W w = O o U 0, m W ?¢ °'L- � N U W O �-m :2 0) UM'-m0 O N I z W r Z \ U O O ¢ w(W LLi¢V)z Z W Z O�cri V w cc � Z Q WO 0 p W o -j� 0 <cc a Q W~ — — — U' U W Z N —j U) O a p U U o 6i C �Q Q N Xm� U U a c0 W V) MO 04 W J00(D Ln( O 00- t`- U .- M O M 0 0C,400N V) O �OL,Z00r� W W 0001 00(n J O --k¢ O - a U O J J 0 ZU ZU y n M J a (� } W F- O� X X U < O .0 - T S .T S z a 0 W a Z H a W < w a rt+ N yj M UI W � o F a wa � � U > a N) N m W U 4 CJ m .. Z S C U Y O Z ~ O z N C a W O O 0- E La e 7 (D0 O V)c m 0) � 0 W W II O z C UV) p Z _ z ¢ O W * S1 �Y �-1 z Z i tl c J x UT Of W ¢ O_ .0 F- o d EASEMENT DEED AND AGREEMENT Flood Control Channel Easement at Creekside Park THIS EASEMENT DEED AND AGREEMENT ("Deed") is made and entered into this day of , 2011 (the "Effective Date"), by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, ("Grantor"), and CAPSTONE DEVELOMENT CORPORATION, an Alabama Corporation ("Grantee"). 1. Grantor's Property. Grantor is the owner of that certain parcel of real property located in Larimer County, Colorado, which is legally described on Exhibit A, consisting of one page, attached to and made a part of this Deed ("Grantor's Property"). 2. Grantee's Property. Grantee is intending to purchase that certain parcel of real property located adjacent to the Grantor's Property in Larimer County, Colorado, which is legally described on Exhibit B, consisting of two pages, attached to and made a part of this Deed ("Grantee's Property). This easement is appurtenant to Grantee's Property. 3. Grant of Easement — Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Eight Thousand Seven Hundred Eighty -Five Dollars ($8,785.00), and other good and valuable consideration, the receipt and adequacy of which Grantor acknowledges, the Grantor grants, sells and conveys to the Grantee, its successors and assigns, a perpetual, non-exclusive storm water drainage easement (the "Easement") on, over, under and across Grantor's Property as described more fully on Exhibit C, consisting of two pages, attached to and made a part of this Deed (the "Easement Area"), to benefit Grantee's Property for purposes of the Choice Center development project, planning case number FDP110002 ("Project'), subject to the conditions and restrictions set forth below. 4. Effective Date. This Easement will not be effective until and unless the Grantee (or Grantee's approved successor in interest) acquires title to the Grantee's Property. If this Easement and the Grantee's Property are not held by the same owner within one year of the date of this Deed, or if construction of the Project is not commenced within one year of the date of this Deed, this Easement will terminate and be of no further force and effect. 5. Purpose and Uses of Easement. Grantee may use the Easement to install, operate, maintain, repair, reconstruct, replace, inspect and remove, at any time and from time to time flood control channel improvements (the "Improvements") in accordance with the Conditional Letter of Map Revision (CLOMR) for the Project, the Project Development Agreement and other applicable land development approvals from the City of Fort Collins related to the Project on Grantee's Property, and for access to the Improvements, on, over, under and across the Easement Area. 6. Additional Rights of Grantee. Grantor further grants to the Grantee: (a) the right of ingress to and egress from the Easement Area over and across Grantor's Property by means of any roads and lanes thereon; (b) the right from time to time to enlarge, improve, reconstruct, relocate and replace the Improvements with any other number or type of similar improvements, either in the original location or at any alternate location or locations within the Easement Area, generally consistent with the intended purposes of the Easement, provided that Grantee must give Grantor advance notice of any change in the type, number or location of improvements and cannot proceed until Grantor has provided its written consent, which shall not be unreasonably withheld or delayed; 7. Grantor's Rights in Easement Area. (a) Grantor reserves the right to use the Easement Area for purposes that will not interfere with Grantee's full enjoyment of the rights granted herein, including but not limited to Grantor's right to operate or allow others to operate utility improvements within the Easement Area. (b) Grantor agrees not to install permanent buildings over the Easement Area. However, Grantor may, subject to the applicable provisions of the Code of the City of Fort Collins, plant or maintain permanent trees, shrubs or other plant material in the Easement Area, provided that no such plantings may be planted directly over the Grantee's Improvements. 8. Grantee's Obligations Re arding Easement Area. (a) All activities by the Grantee on the Easement Area, including access across Grantor's Property, must be carried out in a manner and on a schedule reasonably expected to minimize disturbance to the natural features of said property, any improvements thereon, and the Grantor's intended purposes therefor. (b) Grantee must maintain its Improvements in an entirely secure, safe and sanitary condition, and repair the Improvements as necessary to ensure the Improvements do not cause injury or damage to persons or property. (c) Grantee shall notify Grantor prior to performing any construction, maintenance, repair or other work on or within the Easement Area, and shall in advance of any non -emergency work submit a construction plan and schedule to Grantor for approval, which approval shall not be unreasonably delayed or withheld. The Grantee will need a Temporary Construction Easement from Grantor if working on Grantor's Property outside of the Easement Area. Notwithstanding these notification requirements, in cases of emergency repair, Grantee shall notify Grantor of the emergency and provide related construction plans and schedules as soon as reasonably practicable. (d) In the event damage occurs from Grantee's use of or activities over or within the Easement Area or on Grantor's Property, including but not limited to the installation, maintenance, or operation of the Improvements within the Easement Area or a high water storm event, Grantee agrees to make such repairs or take such other action as 2 may be necessary to restore the Easement Area and Grantor's Property to a condition comparable to their prior condition, including but not limited to the reseeding and replanting of any disturbed areas as specified by Grantee's CLOMR and in a manner reasonably satisfactory to the Grantor, and the provision of ongoing maintenance, including temporary irrigation of any seeded or planted areas, correction of any subsidence, and restoration of any other improvements or conditions impacted by Grantee's activities, until such time as any such repair and restoration is fully established and stabilized. 9. As -Built Drawings. Grantee will provide Grantor with as -built drawings accurately depicting the location and nature of the Improvements constructed by Grantee within the Easement Area, no later than thirty (30) days following completion of the Improvements, and no later than thirty (30) days following a change in the type, number or location of the Improvements, as described in Section 6(b). 10. Representations of Grantor. Grantor makes no representations or warranties as to lawful ownership of Grantor's Property. 11. Recordation. Grantee will record this Deed in the records of the Larimer County Clerk and Recorder and furnish evidence of such recording to the Grantor. This Deed will not be valid until it is recorded. If this Deed has not been recorded with the Larimer County Clerk and Recorder within three (3) months of the date of execution by the Grantor, then the Easement will be null and void and have no force and effect whatsoever, and the parties will be relieved of any remaining obligations hereunder as of the date of such termination. 12. Abandonment. Should the Grantee fail to construct the Improvements within five (5) years from the date of this Deed, or should Grantee permanently discontinue maintaining and using the Improvements within the Easement Area for a period of five (5) years, this shall constitute an abandonment of the Easement, Grantee's Improvements, and Grantee's rights under this Deed, and the Grantee will at its sole cost and expense remove any surface Improvements from the Easement Area. Grantee must consult with the City in advance of any such removal, and the City may in its sole discretion require the Grantee to leave some or all Improvements in place. If Grantee removes the Improvements from the Easement Area, Grantee shall carry out such removal consistent with the requirements set forth in Paragraph 8, and restore the Easement Area, at Grantee's sole cost and expense, to a condition comparable to its condition just prior to the Grantee's removal activities. 13. Indemnity and Insurance. (a) Grantee agrees to indemnify the City, its officers, agents, employees, representatives, successors and assigns from all claims and liability, including but not limited to the City's reasonable legal fees and costs, including attorneys' fees, for claims made by third persons for personal injury, death or property damage resulting from or arising out of the Grantee's use of the Easement Area or other activities on Grantor's Property, including but not limited to the construction, installation, operation, repair, and maintenance of improvements within the Easement Area, and for any actions or omissions by Grantee in violation of this Deed. STATE OF COLORADO ) )SS: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011, by Lester M. Kaplan, Manager/Member of IMAGO LAFAYETTE, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: A�` Notary Public irtz-OK^ STATE OF CQ1.n ) V-&.Pvt w ss: COUNTY OF�� The foregoing instrument was acknowledged before me this -i day of October, 2011, by James Silhasek, Agent for HALLE PROPERTIES, L.L.C., a Colorado limited liability company. Witness my hand and officia se Y nmmtst m. �crnrPc• 6,C) STEPHANIE HEIFMAN NOTARY PUBUC - State of Arizona MARICOPA COUNTY My Comm. E*rw %.19, 2014 Notary STATE OF COLORADO ) )ss: COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of October, 2011) by Patrick J. McGaughran, Manager of PJM7, LLC, a Colorado limited liability company. Witness my hand and official seal. My Commission Expires: Notary Public 5 (b) Grantee must procure, pay for, and keep in full force and effect during the term of the Easement a comprehensive policy of general liability insurance covering the Improvements and insuring Grantee in an amount not less than One Million Dollars ($1,000,000.00) covering bodily injury, including death to persons, personal injury, and property damage liability arising out of a single occurrence. Such coverage must include, without limitation, the insured's liability for property damage, bodily injuries, and death of persons in connection with the operation, maintenance, or use of the Improvements (including acts or omissions of Grantee or of its officers, employees, or agents), and protection against liability for non -owned and hired automobiles. Such coverage must also include coverage for such other risks as are customarily required by private institutional mortgage lenders with regard to property similar in construction, location, and use as the Improvements. All policies of insurance required hereunder must name Grantor as an additional insured, and shall contain a provision that the policy or policies cannot be canceled or materially altered either by the insured or the insurance company until fifteen (15) days' prior written notice thereof is given to Grantor. Upon issuance or renewal of any such insurance policy, Grantee shall furnish a certified copy or duplicate original of such policy or renewal thereof with proof of premium payment to Grantor. In the event Grantee fails or neglects to maintain, or require its contractor to procure and maintain, as applicable, the insurance required by this paragraph, then Grantor shall have the right, upon giving the Grantee reasonable notice of its election to do so, to take out and maintain such insurance at the expense of the Grantee, and in such event the cost of such insurance shall be paid for by the Grantee promptly upon receipt of an invoice covering such charges. 14. Notices. Any notice or other communication relating to this Deed must be given by one party to the other at its respective address as set forth below by hand delivery; commercial carrier; or U.S. mail. The notice or other communication will be effective on the date it is delivered or on the third business day after being sent, whichever comes first. If to Grantee: Capstone Development Corporation 431 Office Park Birmingham, AL 35223 With a copy to: Jim Martell Liley Rogers & Martell LLC 300 S. Howes Street Fort Collins, CO 80521 If to Grantor: Real Estate Services Manager City of Fort Collins 4 Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue, Building "B" Fort Collins, CO 80524 With a copy to: City Attorney's Office City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue, Building "A" Fort Collins, CO 80521 15. Default. Remedies and Litigation Expenses. If a party to this Deed is in default in performance of its respective obligations hereunder, the other party has the right to an action for specific performance or damages or both. Prior to proceeding with any such action, the party not in default must first send written notice to the defaulting party specifying the default and affording such party a reasonable period to cure the default. In the event a party defaults in any of its covenants or obligations and the party not in default commences and prevails in any legal or equitable action against the defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of the litigation, including a reasonable sum for attorneys' fees or similar costs of legal representation. 16. Assignment. Grantee may not assign its rights under this Deed without the prior written consent of the Grantor. 17. Additional Terms and Conditions. (a) Whenever used herein, the singular number includes the plural, the plural the singular•, and the use of any gender is applicable to all genders. (b) All of the covenants herein contained are binding upon and inure to the benefit of the parties hereto, their personal representatives, successors and assigns. (c) If at any time the fee interest in Grantee's Property is owned by more than one party, each party with such an ownership interest in Grantee's Property shall be jointly and severally liable for the obligations of Grantee under this Deed. (d) The parties intend and agree that this Deed is to be construed and enforced according to the laws of Colorado, that venue in any proceeding related to the subject matter of this Deed will be in Larimer County, Colorado, and that this Deed is binding upon 5 the parties hereto, their trustees, heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the Grantee has hereunder set its hand and seal the day and year first above written; and the Grantor has caused this Easement Deed and Agreement to be executed by its Mayor, attested to by its City Clerk, and its corporate seal to be hereunto affixed, all pursuant to Ordinance No.085, 2011, passed on final reading by the City Council of the City of Fort Collins on the 19th day of July, 2011. GRANTOR: THE CITY OF FORT COLLINS, COLORADO a Municipal Corporation Date: Karen Weitkunat, Mayor ATTEST: City Clerk APPROVED AS TO FORM: Senior Assistant City Attorney STATE OF COLORADO ) ) ss COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this ` day of , 2011, by Karen Weitkunat as Mayor and as City Clerk of the City of Fort Collins. Witness my hand and official seal. My Commission expires: G Notary Public Date: &k as .�1._.. STATE OF ALABAMA ) COUNTY OF Te,- ) ss GRANTEE: CAPSTONE DEVELOPMENT CORPORATION, An Alabama Corporation By: '.."" - - ---' . of a ,Executive Vice President The foregoing instrument was acknowledged before me this Ift"day ofQOP6 ' 2011by 1. Jeff Jones as Executive Vice President and'r�;,r ZA=i fs&:MW �p -1�" r , , ;,for Capstone Development Corporation. Witness my hand and official seal. My Commission expires: O ��, ..• y MarearrorX ea �rLARM 201 NOTARY KM*yMCOMM => =Aosv�sr TW Notary Public ...-. A1111\0 VA EXHIBIT "C° LEGAL DESCRIPTION A PARCEL OF LAND SITUATED IN THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, LARIMER COUNTY, COLORADO, AND BEING A PORTION OF THAT PARCEL OF RECORD AT RECEPTION NUMBER 0089010788, RECORDS OF THE RECORDER'S OFFICE, LARIMER COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARINGS THE EAST LINE OF THE NORTHEAST ONE -QUARTER OF SECTION 23, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEING MONUMENTED AT THE NORTHEAST CORNER OF SAID SECTION 23 BY A FOUND 3 INCH ALUMINUM CAP STAMPED 'LS 17497, 1991' IN A RANGE BOX, AND AT THE EAST ONE -QUARTER CORNER OF SAID SECTION 23 BY A FOUND 2-1/2 INCH ALUMINUM CAP STAMPED "LS 17497, 1991' IN A RANGE BOX, CALCULATED TO BEAR S00°02'18"E WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO. BEGINNING AT THE SOUTHWEST CORNER OF LOT 2 OF THE SPRING COURT SUBDIVISION; THENCE S89"36'51"E ALONG THE SOUTH LINE OF SAID LOT 2 A DISTANCE OF 143.78 FEET; THENCE LEAVING SAID SOUTH LINE OF LOT 2 THE FOLLOWING THREE '(3) COURSES ACROSS SAID PARCEL OF RECORD AT RECEPTION NUMBER 0089010788 AND RECEPTION NUMBER 0088007557: 1. S00'21'42'W A DISTANCE OF 54.12 FEET; 2. S83'4344'W A DISTANCE OF 90.00 FEET; 3. N82°05'33"W A DISTANCE OF 80.70 FEET TO THE EAST RIGHT-OF-WAYOF THE C & S RAILROAD; THENCE N06612'38'E ALONG SAID EAST RIGHT-OF-WAY OF THE C & S RAILROAD A DISTANCE OF 56.90 FEET TO THE POINT OF -BEGINNING. CONTAINING AN AREA OF 8,785 SQUARE FEET, OR 0.202 ACRES, MORE OR LESS. EXHIBIT ATTACHED AND BY THIS REFERENCE MADE A PART HEREOF. 1, CHARLES BERESFORD, A 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. CHARLES BERESFORD, PROFESSIONAL LAND SURVEYOR COLORADO REGISTRATION No. 35583 FOR AND ON BEHALF OF NOLTE ASSOCIATES, INC. 8000 S. CHESTER STREET, SUITE 200 CENTENNIAL, COLORADO 80112 PAGE 1 OF 2 N:%FC80254%CaddlSurvey LegalsWRMAEM02.doc I I I I I N x I i O w o rnm cn jr � z zz� mm � ��D 0"'a in� z . CA i z EXHIBIT "C" x O m !E � �ZW Oma`'c43p n^ ci05 WE�azwu / BASIS OF BEARINGS ✓✓✓ S 00'02'16" E 2646.97' E. LINE NE 1 4 SEC. 23 COLLEGE AVENUE (HIGHWAY 287) L� z vIr I I acn F�vS a-_aZ Q00 oa a �n CA amo w Ja r a 00 �Z a !� N '4 i, 45 La 0 0 — (n to 0 Lr amv,c�� Irn � abo�ni yv S 0 �� Z 111G b. Z.00S ,eL,90N (n M �00(D O O N L �pp 4 GJ J Z W }} V Q a G7 a o T to N co Z tV 0 O co �L _ F-- w Q o �w cv s <a W W J `_ $ co MW O u o It z S w � r C �a W g ro 0 U1 u ro � �W+ C O N w U a O N b O C Y .t W ° E AL .. a zi E � L U1 = 00 O «+ N c — lu J- O O Z p W � �� of ,. (L E to TEMPORARY CONSTRUCTION EASEMENT DEED AND AGREEMENT THIS EASEMENT DEED AND AGREEMENT ("Deed") is made and entered into this day of , 2011, (the "Effective Date"), by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation, ("Grantor") and CAPSTONE DEVELOPMENT CORPORATION, an Alabama Corporation ("Grantee"). 1. Grantor's Property. Grantor is the owner of that certain parcel of real property located in Larimer County, Colorado, which is legally described on Exhibit A, consisting of one page, attached to and made a part of this Deed ("Grantor's Property"). 2. Grantee's Property. Grantee is intending to purchase that certain parcel of real property located adjacent to the Grantor's Property in Larimer County, Colorado, which is legally described on Exhibit B, consisting of two pages, attached to and made a part of this Deed ("Grantee's Property). This easement is appurtenant to the Grantee's Property. 3. Grant of Easement — Consideration. For and in consideration of the covenants and agreements herein set forth, the sum of Four Hundred Thirty Seven Dollars ($437.00), and other good and valuable consideration, the receipt and adequacy of which Grantor acknowledges, the Grantor hereby grants, sells and conveys to the Grantee, its successors and assigns, a temporary construction easement (the "TCE") on, over, under and across Grantor's Property as described more fully on Exhibit C, consisting of three pages, attached to and made a part of this Deed (the "TCE Area"), to benefit Grantee's Property for purposes of the Choice Center development project, planning case number FDP110002 ("Project"), subject to the conditions and restrictions set forth below. 4. Purpose and Uses of Easement. Grantee may use the TCE Area for the purposes of carrying out activities related to the construction of public improvements in conjunction with the Project including a recreational trail and an underground stormwater pipe (the "Improvements"). Such activities may include vehicular and non -vehicular access and the storage and staging of materials and equipment. 5. Term. The TCE will terminate thirty (30) days after final completion of the Improvements, but in no event later than August 31, 2013. 6. Additional Riizhts of Grantee. Grantor further grants to the Grantee: (a) the right of ingress to and egress from the TCE Area over and across Grantor's Property by means of any roads and lanes thereon; (b) the right to use existing gates in all fences which now cross or shall hereafter cross the TCE Area, and, if Grantor consents in writing, the right to install, maintain and use new gates in any such fences; (c) the right to mark the location of the TCE Area by suitable markers acceptable to Grantor set in the ground; provided that said markers must be placed in locations which will not interfere with any reasonable use Grantor may make of the TCE Area, and will not pose a danger to the public. 7. Grantor's Rights in Easement Area. Grantor reserves the right to use the TCE Area for any purposes that will not interfere with Grantee's full enjoyment of the rights granted herein, including but not limited to Grantor's right to operate or allow others to operate utility improvements within the TCE Area. 8. Grantee's Use and Restoration of TCE Area. (a) All activities by the Grantee on the TCE Area, including access across Grantor's Property, must be carried out in a manner and on a schedule reasonably expected to minimize disturbance to the natural features of said property and the Grantor's intended purposes therefor. (b) Grantee shall notify Grantor prior to doing any work in the TCE Area and shall coordinate such work with Grantor. In the event damage occurs from Grantee's activities over or within the TCE Area or on Grantor's Property, Grantee agrees to make such repairs or take such other action as may be necessary to restore the TCE Area and Grantor's Property, including but not limited to reseeding the TCE area with a native grass seed mix as specified by the City's Parks Department and replanting of any disturbed areas in a manner reasonably satisfactory to the Grantor, and the provision of ongoing maintenance, including temporary irrigation of any seeded or planted areas, correction of any subsidence, and restoration of any other improvements or conditions impacted by Grantee's activities, until such time as any such repair and restoration is fully established and stabilized. 9. Representations of Grantor. Grantor makes no representations or warranties as to the lawful ownership of Grantor's Property. 10. Recordation. Grantee will record this Deed in the records of the Larimer County Clerk and Recorder by Grantee, and furnish evidence of such recording to the Grantor. This Deed will not be valid until it is recorded. If this Deed has not been recorded with the Larimer County Clerk and Recorder within three (3) months of the date of execution of this Agreement by the Grantor, then the Easement will be null and void and have no force and effect whatsoever, and the parties will be relieved of any remaining obligations hereunder as of the date of such termination. 11. Indemnity and Insurance. (a) Grantee agrees to indemnify the City, its officers, agents, employees, representatives, successors and assigns from all claims and liability, including but not limited to the City's reasonable legal fees and costs, including attorneys' fees, for claims made by third persons for personal injury, death or property damage resulting from or arising out of the Grantee's use of the TCE Area or other activities on Grantor's Property, and for any actions or omissions by Grantee in violation of this Deed. 2 (b) Grantee must procure, pay for, and keep in full force and effect during the term of the TCE a comprehensive policy of general liability insurance insuring Grantee in an amount not less than One Million Dollars ($1,000,000.00) covering bodily injury, including death to persons, personal injury, and property damage liability arising out of a single occurrence. Such coverage must include, without limitation, the insured's liability for property damage, bodily injuries, and death of persons in connection with Grantee's activities in the TCE Area or on Grantor's Property (including acts or omissions of Grantee or of its officers, employees, or agents), and protection against liability for non -owned and hired automobiles. All policies of insurance required hereunder must name Grantor as an additional insured, and shall contain a provision that the policy or policies cannot be canceled or materially altered either by the insured or the insurance company until fifteen (15) days' prior written notice thereof is given to Grantor. Upon issuance or renewal of any such insurance policy, Grantee shall furnish a certified copy or duplicate original of such policy or renewal thereof with proof of premium payment to Grantor. In the event Grantee fails or neglects to maintain, or require its contractor to procure and maintain, as applicable, the insurance required by this paragraph, then Grantor shall have the right, upon giving the Grantee reasonable notice of its election to do so, to take out and maintain such insurance at the expense of the Grantee, and in such event the cost of such insurance shall be paid for by the Grantee promptly upon receipt of an invoice covering such charges. 12. Notices. Any notice or other communication relating to this Deed must be given by one party to the other at its respective address as set forth below by hand delivery; commercial carrier; or U.S. mail. The notice or other communication will be effective on the date it is delivered or on the third business day after being sent, whichever comes first. If to Grantee: Capstone Development Corporation 431 Office Park Birmingham, AL 35223 With a copy to: Jim Martell Liley Rogers & Martell LLC 300 S. Howes Street Fort Collins, CO 80521 If to Grantor: Real Estate Services Manager City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue, Building "B" Fort Collins, CO 80521 3 With a copy to: City Attorney's Office City of Fort Collins Mailing Address: P.O. Box 580 Fort Collins, CO 80522-0580 Hand Delivery: 300 LaPorte Avenue, Building "A" Fort Collins, CO 80521 13. Default. Remedies and Litigation Expenses. If a party to this Deed is in default in performance of its respective obligations hereunder, the other party has the right to an action for specific performance or damages or both. Prior to proceeding with any such action, the party not in default must first send written notice to the defaulting party specifying the default and affording such party a reasonable period to cure the default. In the event a party defaults in any of its covenants or obligations and the party not in default commences and prevails in any legal or equitable action against the defaulting party, the defaulting party expressly agrees to pay all reasonable expenses of the litigation, including a reasonable sum for attorneys' fees or similar costs of legal representation. 14. Assignment. Grantee may not assign its rights under this Deed without the prior written consent of the Grantor. 15. Additional 'Terms and Conditions. (a) Whenever used herein, the singular number includes the plural, the plural the singular; and the use of any gender is applicable to all genders. (b) All of the covenants herein contained are binding upon and inure to the benefit of the parties hereto, their personal representatives, successors and assigns. (c) The parties intend and agree that this Deed is to be construed and enforced according to the laws of Colorado, that venue in any proceeding related to the subject matter of this t Deed will be in Larimer County, Colorado, and that this Deed is binding upon the parties hereto, their trustees, heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the Grantee has hereunder set its hand and seal the day and year first above written; and the Grantor has caused this Temporary Construction Easement Deed and Agreement to be executed by its Mayor, attested to by its City Clerk, and its corporate seal to be hereunto affixed, all pursuant to Ordinance No.085, 2011, passed on final reading by the City Council of the City of Fort Collins on the 19t' day of July, 2011. 4