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HomeMy WebLinkAboutKKAAPP~1 Fire Pond and Utility Easement and Agreement 1 FIRE POND AND UTILITY EASEMENT AND AGREEMENT This Easement Agreement (the”Agreement”) is made and effective this _____th day of ____________________, 2009, by Daybreak Realty, LLC (“Daybreak”). This agreement is made with reference to and in reliance upon the following facts: A. Daybreak is the owner of certain real property located in Garfield County, Colorado more particularly described on Exhibit “A” DAYBREAK PARCEL attached hereto and made a part hereof; Inconsideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant of Easement: a. Daybreak Grants a non-exclusive Easement for the purpose of a Fire Pond and Utility Easement (Fire Pond) said easement being more particularly described in Exhibit “B” FIRE POND AND UTILITY EASEMENT attached hereto and made a part hereof for the purpose of ingress and egress for said Fire Pond for installation, maintenance, repair and service of said Fire Pond. b. Easement is granted and dedicated for the sole use of providing Water and Waste Water Treatment Services to High Mesa Partners, LLC (High Mesa) as described in Service Agreement by and between Daybreak and High Mesa. 2. Reservations of Easement: Daybreak hereby reserves the right to use said Easement in any manner that will not prevent or interfere with the reservations of said easement hereunder, provided, however, that Daybreak shall not construct, nor permit to be constructed, any house, building, permanent improvements, or unreasonable obstructions within said Easement. 3. Relocation of Easement: a. Daybreak, it’s successors and/or assigns may relocate said Easement in order to take into account the natural topography of the Parcel and any improvements thereon. b. In the event that Daybreak relocates said Easement, a modification of said easement shall be executed and record in the real property records of Garfield County, Colorado describing the revised location of said Easement. 4. Use of Easement: a. Daybreak, it’s successors and/or assigns, heirs and personal representatives agrees to undertake all activities performed in connection with said Easement in a good and workmanlike manner and as expeditiously as possible, b. Shall at all times perform such activities in complete compliance with all applicable construction, health, safety and other laws, regulations and codes. c. Shall disturb the natural vegetation with the subject easement as little as possible and shall clean up, re-grade and re-vegetate unimproved portions of the Easement area as soon as possible and to the extent necessary from time to time to restore the same as closely as possible to its natural state. Fire Pond and Utility Easement and Agreement 2 d. All such activities shall be performed at the sole cost and expense of Daybreak, it’s successors and/or assigns, heirs and personal representatives e. Shall keep the subject easement free from mechanic’s or materialman’s liens of any kind which may arise from any activities undertaken by Daybreak, it’s successors and/or assigns, heirs and personal representatives. f. Upon completion of construction of said Fire Pond, easement may be used by Daybreak as ingress/egress for: i. Continued maintenance and repairs of said Fire Pond.. ii. May be accessed by High Mesa, it’s successors and/or assigns for repair and maintenance as per Service Agreement between Daybreak and High Mesa for same. 5. Maintenance: The parties, Daybreak and High Mesa, their successors and/or assigns, heirs and personal representatives respectively agree to maintain the easement in accordance with the Service Agreement between said parties. 6. Notices: Any notice hereunder shall be given in writing and shall be deemed effective upon the date of personal delivery, or three days after deposit in the United States Mail, postage prepaid, certified mail, and properly addressed to the parties as follows: a. Daybreak Realty, LLC, 400 Panamint Road, Reno NV 89521 b. High Mesa Partners, LLC, 400 Panamint Road, Reno NV 89521 Any party to this Easement and Agreement, their successors and/or assigns, may designate or change their address for purposes of this Easement and Agreement by giving notice as set forth above. 7. Binding Effect: The covenants and agreements contained herein shall be deemed covenants which shall run with the real property herein above described and shall be binding on and shall insure to the benefit of all parties having or acquiring any right, title or interest in the Daybreak Parcel. 8. Entire Agreement: This Agreement contains the entire understanding of the parties hereto. There are no representations, warranties, covenants or understandings other than those expressly set forth herein. This Agreement may not be modified or amended except in writing signed by the parties hereto. 9. Captions: The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision contained herein. The rights herein granted may be assigned in whole and the terms, conditions and provisions hereof shall extend to and be binding upon the heirs, executors, administers personal representatives, successors and/or assigns, of the parties hereto. Daybreak agrees to bury any and all utilities associated with said Fire Pond to a sufficient depth so as not to interfere with cultivation of soil and to pay any damages which may arise to growing crops and fences from the construction, maintenance and operation of said Fire Pond constructed under the terms of this Agreement. Daybreak intends to cultivate and irrigate the lands along and within the Easement. Fire Pond and Utility Easement and Agreement 3 Daybreak further agrees to install 12-foot steel gates at all fence crossings and to grade existing access roads used to access construction areas before, during and upon completion of construction. Daybreak shall not release, spill, store or dispose of (collectively “Release”) any hazardous substances, petroleum products or any pollutants or substances of whatever nature defined as hazardous or toxic in any applicable federal, state, or local laws or regulations (Hazardous Substances”) in, on, or about the Fire Pond in violation of any applicable federal, state, or local laws or regulations or in any unsafe manner. The provisions of this Section shall survive the expiration or termination of this Easement. Daybreak shall keep in good order and repair the Fire Pond and Utility Easement and related fixtures and shall keep the Easement free from any and all liens for material and labor. It is mutually agreed and understood that this Agreement, as written, covers all agreements and stipulations between the said parties, and no representations or statements, oral or written, have been made modifying, adding to, or changing the terms of hereof. IN TESTIMONY WHEREOF, all Parties, herein have executed this conveyance this _____ day of ____________________, 2009. Fire Pond and Utility Easement and Agreement 4 Daybreak Realty, LLC __________________________________ Robert Graham, Manager STATE OF ______ COUNTY OF This instrument was acknowledged before me on the _____ day of ________________, 2009 before me, a notary public, in and for said county and state, personally came the above- named ____________________________________________________, ____________________________________________________, ____________________________________________________, who are personally known to me and known to me to be the identical persons whose name are affixed to the above instrument to be their voluntary act and deed. IN WITNESS WHEREOF I have hereunto set my hand and affixed my notary seal the day and year above written. My Commission Expires: _______________ Notary Public in and for The State of ___________________ Fire Pond and Utility Easement and Agreement 5 EXHIBIT “A” DAYBREAK REALTY PARCEL A PARCEL OF LAND SITUATED IN SECTIONS 19 AND 30, TOWNSHIP 7 SOUTH, RANGE 95 WEST AND IN SECTIONS 25 AND 36, TOWNSHIP 7 SOUTH, RANGE 96 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO. SAID PARCEL OF LAND BEING A PORTION OF A PARCEL OF LAND PREVIOUSLY DESCRIBED IN BOOK 1248, PAGE 543 AS FILED WITH THE GARFIELD COUNTY CLERK AND RECORDER'S OFFICE AND NOW BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE WEST 1/4 CORNER OF SAID SECTION 19, A 3" BRASS CAP LS NO. 12770 IN PLACE; THENCE N89°41'05"E 1266.57 FEET ALONG THE CENTERLINE OF SAID SECTION 19 TO THE C-W1/16 CORNER OF SAID SECTION 19; THENCE N89°41'58"E 1327.91 FEET ALONG THE CENTERLINE OF SAID SECTION 19 TO THE C1/4 CORNER OF SAID SECTION 19; THENCE N89°41'33"E 1317.77 FEET ALONG THE CENTERLINE OF SAID SECTION 19 TO THE C-E1/16 CORNER OF SAID SECTION 19; THENCE S01°23'15"E 1369.29 FEET ALONG THE EASTERLY LINE OF THE NW1/4SE1/4 TO THE SE1/16 OF SAID SECTION 19; THENCE S01°23'15"E 1369.29 FEET ALONG THE EASTERLY LINE OF THE SW1/4SE1/4 OF SAID SECTION 19 TO THE E1/16 CORNER OF SAID SECTION 19; THENCE N89°01'56"W 67.48 FEET ALONG THE SOUTHERLY LINE OF SAID SECTION 19 TO THE E1/16 CORNER OF SAID SECTION 30; THENCE S00°01'32"E 1282.91 FEET ALONG THE EASTERLY LINE OF THE NW1/4NE1/4 BEING GLO LOT 4 OF SAID SECTION 30 TO THE NE1/16 CORNER OF SAID SECTION 30; THENCE S00°01'32"E 1307.09 FEET ALONG THE EASTERLY LINE OF THE SW1/4NE1/4 OF SAID SECTION 30 TO THE C-E1/16 CORNER OF SAID SECTION 30; THENCE N89°43'04"W 1314.26 FEET ALONG THE CENTERLINE OF SAID SECTION 30 TO THE C1/4 CORNER OF SAID SECTION 30; THENCE S00°06'29"E 1322.30 FEET ALONG THE CENTERLINE OF SAID SECTION 30 TO THE C-S1/16 CORNER OF SAID SECTION 30; THENCE N89°39'46"W 1317.65 FEET ALONG THE SOUTHERLY LINE OF THE NE1/4SW1/4 OF SAID SECTION 30 TO THE SW1/16 CORNER OF SAID SECTION 30; THENCE N89°39'46"W 1252.60 FEET ALONG THE SOUTHERLY LINE OF THE NW1/4SW1/4 BEING GLO LOT 8 OF SAID SECTION 30 TO THE S1/16 CORNER OF SAID SECTION 30 SAID POINT BEING ON THE EASTERLY LINE OF SAID SECTION 25; THENCE S00°52'37"E 1268.09 FEET ALONG THE EASTERLY LINE OF SAID SECTION 25 TO THE SE CORNER OF SAID SECTION 25, SAID POINT ALSO BEING THE NE CORNER OF SAID SECTION 36; THENCE S00°55'44"W 53.27 FEET ALONG THE EASTERLY LINE OF SAID SECTION 36 TO THE SW CORNER OF SAID SECTION 30; THENCE S00°08'33"W 1272.71 FEET ALONG THE EASTERLY LINE OF SAID SECTION 36 TO THE N1/16 CORNER OF SAID SECTION 36; THENCE S89°05'43"W 1345.45 FEET ALONG THE SOUTHERLY LINE OF THE NE1/4NE1/4 OF SAID SECTION 36 TO THE NE1/16 CORNER OF SAID SECTION 36; THENCE S89°05'43"W 1345.45 FEET ALONG THE SOUTHERLY LINE OF THE NW1/4NE1/4 OF SAID SECTION 36 TO THE C-N1/16 CORNER OF SAID SECTION 36; THENCE N00°00'42"E 1335.54 FEET ALONG THE CENTERLINE OF SAID SECTION 36 TO THE 1/4 CORNER OF SAID SECTION 36 AND SECTION 25; THENCE N00°20'11"E Fire Pond and Utility Easement and Agreement 6 1305.99 FEET ALONG THE CENTERLINE OF SAID SECTION 25 TO THE C-S1/16 CORNER OF SAID SECTION 25; THENCE N88°55'36"E 1334.04 FEET ALONG THE NORTHERLY LINE OF THE SW1/4SE1/4 OF SAID SECTION 25 TO THE SE1/16 CORNER OF SAID SECTION 25; THENCE N88°55'36"E 1334.04 FEET ALONG THE NORTHERLY LINE OF THE SE1/4SE1/4 OF SAID SECTION 25 TO THE S1/16 CORNER OF SAID SECTION 25, SAID POINT ALSO BEING ON THE WESTERLY LINE OF SAID SECTION 30; THENCE N00°54'14"W 1264.99 FEET ALONG THE WESTERLY LINE OF SAID SECTION 30 TO THE W1/4 CORNER OF SAID SECTION 30; THENCE N00°02'56"E 57.16 FEET ALONG THE WESTERLY LINE OF SAID SECTION 30 TO THE E1/4 CORNER OF SAID SECTION 25; THENCE N00°11'03"W 1263.65 FEET ALONG THE WESTERLY LINE OF SAID SECTION 30 TO THE N1/16 CORNER OF SAID SECTION 30; THENCE S89°23'13"E, 1271.44 FEET ALONG THE NORTHERLY LINE OF THE SW1/4NW1/4 BEING GLO LOT 7 OF SAID SECTION 30 TO THE NW1/16 CORNER OF SAID SECTION 30; THENCE N00°07'46"W 1310.67 FEET ALONG THE WESTERLY LINE OF THE NE1/4NW1/4 BEING GLO LOT 5 OF SAID SECTION 30 TO THE W1/16 CORNER OF SAID SECTION 30; THENCE S86°58'37"E 10.87 FEET ALONG THE NORTHERLY LINE OF SAID SECTION 30 TO THE W1/16 CORNER OF SAID SECTION 19; THENCE N00°23'43"W 1337.86 FEET ALONG THE WESTERLY LINE OF THE SE1/4SW1/4 OF SAID SECTION 19 TO THE SW1/16 CORNER OF SAID SECTION 19; THENCE N89°36'59"W 374.50 FEET ALONG THE SOUTHERLY LINE OF THE NW1/4SW1/4 OF SAID SECTION 19; THENCE DEPARTING SAID SOUTHERLY LINE N00°03'02"W 970.32 FEET; THENCE S89°15'10"W 901.08 FEET TO THE WESTERLY LINE OF THE NW1/4SW1/4 OF SAID SECTION 19; THENCE N00°03'02"W ALONG SAID WESTERLY LINE 370.21 FEET TO THE POINT OF BEGINNING. Fire Pond and Utility Easement and Agreement 7 EXHIBIT “B” FIRE POND AND UTILITY EASEMENT A PARCEL OF LAND FOR THE PURPOSE OF A FIRE POND AND UTILITY EASEMENT, SITUATE IN THE SE1/4SW1/4 OF SECTION 19, TOWNSHIP 7 SOUTH, RANGE 95 WEST OF THE 6TH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO, ALL BEARINGS RELATIVE TO A BEARING OF N00°25’59”W BETWEEN THE SOUTHWEST 1/16 CORNER OF SAID SECTION 19, A 3-1/4” BLM ALUMINUM CAP IN PLACE AND THE CENTER WEST 1/16 CORNER OF SECTION 19, A 3-1/4” BLM ALUMINUM CAP IN PLACE. SAID PARCEL OF LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST 1/16 CORNER OF SAID SECTION 19, A 3-1/4” BLM ALUMINUM CAP IN PLACE; THENCE S00°23’43”E 63.11 FEET TO A POINT ON THE WESTERLY LINE OF SAID SE1/4SW1/4, THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID WESTERLY LINE N89°35’44”E 120.22 FEET; THENCE S00°24’16”E 185.00 FEET; THENCE S89°35’44”W 120.25 FEET TO A POINT ON THE WESTERLY LINE OF SAID SE1/4SW1/4; THENCE ALONG SAID WESTERLY LINE N00°23’43”W 185.00 FEET TO THE POINT OF BEGINNING. SAID PARCEL OF LAND CONTAINING 0.511 ACRES, MORE OR LESS.