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HomeMy WebLinkAboutKKEAPP~1 N and S Storm Water Facility and Maintenance Easement Agreement 1 STORM WATER FACILITY ACCESS AND MAINTENANCE EASEMENT AGREEMENT This Easement Agreement (the”Agreement”) is made and effective this _____th day of ____________________, 2009, by and between James Eugene Speakman and Monique Teresa Speakman (collectively “Speakman”) and Daybreak Realty, LLC (“Daybreak”). This agreement is made with reference to and in reliance upon the following facts: A. Speakman is the owner of certain real property located in Garfield County, Colorado more particularly described on Exhibit “A” SPEAKMAN 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. Speakman Grants a non-exclusive Easement to Daybreak for the purpose of: i. North Storm Water Facility Access and Maintenance Easement (“North Pond”) said easement being more particularly described in Exhibit “B” attached hereto and made a part hereof; and ii. South Storm Water Facility Access and Maintenance Easement (“South Pond”) said easement being more particularly described in Exhibit “C” attached hereto and made a part hereof for the purpose of ingress and egress for said North and South Ponds for installation, maintenance, repair and service of said Ponds. 2. Reservations of Easement: Speakman hereby reserves the right to use the Easement in any manner that will not prevent or interfere with the exercise by Daybreak of its rights hereunder, provided, however, that Speakman shall not construct, nor permit to be constructed, any house, building, permanent improvements, or unreasonable obstructions within the Easement, without the express prior consent of Daybreak which shall not be unreasonably withheld. 3. Relocation of Easement: a. The parties hereby agree that the parties may relocate such Easement in order to take into account the natural topography of the Speakman Parcel and any improvements thereon, subject to the mutual consent of Speakman and Daybreak and their respective successors and/or assigns. b. In the event that Speakman and Daybreak agree to relocate the Easement, said parties shall execute and record in the real property records of Garfield County, Colorado a modification of this Agreement describing the revised location of the 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 the Easement in a good and workmanlike manner and as expeditiously as possible, N and S Storm Water Facility and Maintenance Easement Agreement 2 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. 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 North and South Ponds, easement may be used by Speakman and Daybreak as ingress/egress for: i. Continued maintenance and repairs of said North and South Ponds.. ii. May be accessed by High Mesa 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. High Mesa Partners, LLC, 400 Panamint Road, Reno NV 89521 b. Daybreak Realty, LLC, 400 Panamint Road, Reno NV 89521 c. Eugene Speakman, 5242 County Road 300, Parachute, CO 81635 Any party to this Agreement, their successors and/or assigns, may designate or change their address for purposes of this Agreement by giving notice as set forth above. 7. Indemnities: Daybreak, it’s successors and/or assigns, heirs and personal representatives agree to protect, indemnify and hold harmless Speakman, it’s successors and/or assigns, heirs and personal representatives from and against any loss, damage, claim or defense, against any and all suits, claims, demands, expenses, losses, liabilities or damage of any kind or nature, including reasonable attorney’s fees and costs, arising directly or indirectly out of any claim or third parties asserted against Speakman, it’s successors and/or assigns, heirs and personal representatives a. Attributable to any conduct of Daybreak it’s successors and/or assigns, heirs and personal representatives arising from their use of the Easement b. Relating to the use of High Mesa it’s successors and/or assigns, heirs and personal representatives and their respective invitees, guests, contractors or subcontractors whether authorized or not authorized, c. For claims arising from use of the Easement due to personal injuries or property damage caused by Daybreak, it’s successors and/or assigns, heirs and personal representatives and their respective invitees and guests, contractors or subcontractors, or d. Due to mechanic’s liens created by conduct or acts of Daybreak, it’s successors and/or assigns, heirs and personal representatives. N and S Storm Water Facility and Maintenance Easement Agreement 3 8. 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 Speakman Parcel. 9. 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. 10. 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. 11. Attorney’s Fees: In the event of litigation to enforce this Agreement, the prevailing party shall be entitled to an award of such party’s attorney’s fees and expenses should the court determine that the non-prevailing part acted in a manner inconsistent with a high degree of comity. 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 North and South Ponds 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 North and South Ponds constructed under the terms of this Agreement. Daybreak understands that Speakman intends to cultivate and irrigate the lands along and within the Easement. The consideration received for this Easement includes payment for the normal damages caused by the initial installation of the North and South Ponds and temporary use of existing private roads to access the Easement. 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. Speakman further agrees not to change the grade, remove dirt from the surface of the easement or impound water over the easement without prior written approval of Daybreak which shall not be unreasonably withheld. 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 Speakman Property in violation of any applicable federal, state, or local laws or regulations or in any unsafe manner. Daybreak shall indemnify, hold harmless, and defend Speakman from any and all claims, liabilities, losses, damages, cleanup costs, and expenses (including reasonable attorneys fees) arising out of or in any way related to the release by Daybreak. The provisions of this Section shall survive the expiration or termination of this Easement. After initial construction, Daybreak shall seek the advice and consent of Speakman before any subsequent construction. Daybreak shall keep in good order and repair the North and N and S Storm Water Facility and Maintenance Easement Agreement 4 South Storm Water Facility and Maintenance Easements respectively and related fixtures and shall keep the Speakman Property free from any and all liens for material and labor. Daybreak shall not perform any nuisances or menaces about the property. 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. N and S Storm Water Facility and Maintenance Easement Agreement 5 James Eugene Speakman and Monique Teresa Speakman _________________________________ James Eugene Speakman _________________________________ Monique Teresa Speakman 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 ___________________ N and S Storm Water Facility and Maintenance Easement Agreement 6 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 ___________________ N and S Storm Water Facility and Maintenance Easement Agreement 7 EXHIBIT “A” SPEAKMAN PARCEL DESCRIPTION A PARCEL OF LAND SITUATE IN THE S1/2 SECTION 24, TOWNSHIP 7 SOUTH, RANGE 96 WEST OF THE 6TH P.M., COUNTY OF GARFIELD, STATE OF COLORADO. SAID PARCEL OF LAND BEING A PORTION OF A PARCEL OF LAND PREVIOUSLY DESCRIBED IN BOOK 1248, PAGE 571 AS FILED WITH THE GARFIELD COUNTY CLERK AND RECORDER’S OFFICE AND NOW BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: SECTION 24: N1/2SE1/4, AND THAT PORTION OF THE NE1/4SW1/4 LYING SOUTH OF GARFIELD COUNTY ROAD NO. 300, TOWNSHIP 7 SOUTH, RANGE 96 WEST OF THE 6TH P.M., COUNTY OF GARFIELD, STATE OF COLORADO LESS AND EXCEPT A PARCEL OF LAND SITUATE IN THE NE1/4SE1/4 OF SAID SECTION 24 BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER SOUTH 1/16 CORNER OF SAID SECTION 24, A BLM ALUMINUM CAP IN PLACE; THENCE N88°39'44"E 1882.31 FEET TO A POINT ON THE SOUTHERLY LINE OF THE N1/2SE1/4 OF SAID SECTION 24, THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID SOUTHERLY LINE N00°03'02"W 960.40 FEET; THENCE N89°15'10"E 762.92 FEET TO A POINT ON THE EASTERLY LINE OF THE N1/2SE1/4 OF SAID SECTION 24; THENCE S00°03'02'E ALONG SAID EASTERLY LINE 952.55 FEET TO THE SOUTH 1/16 CORNER OF SECTION 24 AND SECTION 19, A 3" BLM ALUMINUM CAP IN PLACE; THENCE S88°39'44"W ALONG THE SOUTHERLY LINE OF SAID N1/2SE1/4 A DISTANCE OF 763.06 FEET TO THE TRUE POINT OF BEGINNING. SAID PARCEL OF LAND CONTAINING 16.751 ACRES, MORE OR LESS. N and S Storm Water Facility and Maintenance Easement Agreement 8 EXHIBIT “B” NORTH STORM WATER FACILITY AND MAINTENANCE A PARCEL OF LAND FOR THE PURPOSE OF A STORM WATER FACILITY ACCESS AND MAINTENANCE EASEMENT SITUATE IN THE NE1/4SE1/4 OF SECTION 24, TOWNSHIP 7 SOUTH, RANGE 96 WEST OF THE SIXTH P.M., COUNTY OF GARFIELD, STATE OF COLORADO. ALL BEARING RELATIVE TO A BEARING OF N88°50’42”E BETWEEN THE CENTER 1/4 CORNER OF SAID SECTION 24, A 3-1/4” BLM ALUMINUM CAP IN PLACE AND THE EAST 1/4 CORNER OF SECTION 24, A 3” BRASS CAP LS NO. 12770 IN PLACE. SAID PARCEL OF LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST 1/4 CORNER OF SAID SECTION 24, A 3” BRASS CAP LS NO. 12770 IN PLACE; THENCE S68°01’20”W 239.24 FEET TO THE TRUE POINT OF BEGINNING; THENCE S60°44’21”E 165.00 FEET; THENCE S29°15’39”W 100.00 FEET; THENCE N60°44’21”W 165.00 FEET; THENCE N29°15’39”E 100.00 FEET TO THE POINT OF BEGINNING. SAID PARCEL OF LAND CONTAINING 0.379 ACRES, MORE OR LESS. N and S Storm Water Facility and Maintenance Easement Agreement 9 EXHIBIT “C” SOUTH STORM WATER FACILITY AND MAINTENANCE A PARCEL OF FOR THE PURPOSE OF A STORM WATER FACILITY ACCESS AND MAINTENANCE EASEMENT SITUATE IN THE NE1/4SE1/4 OF SECTION 24, TOWNSHIP 7 SOUTH, RANGE 96 WEST OF THE SIXTH P.M., COUNTY OF GARFIELD, STATE OF COLORADO. ALL BEARING RELATIVE TO A BEARING OF N88°50’42”E BETWEEN THE CENTER 1/4 CORNER OF SAID SECTION 24, A 3-1/4” BLM ALUMINUM CAP IN PLACE AND THE EAST 1/4 CORNER OF SECTION 24, A 3” BRASS CAP LS NO. 12770 IN PLACE. SAID PARCEL OF LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE EAST 1/4 CORNER OF SAID SECTION 24, A 3” BRASS CAP LS NO. 12770 IN PLACE; THENCE S52°04’59”W 502.10 FEET TO THE TRUE POINT OF BEGINNING; THENCE S24°26’52”E 72.98 FEET TO A POINT ON THE NORTHERLY LINE OF A PARCEL OF LAND DESCRIBED IN RECEPTION NO. 759300 RECORDED AT THE GARFIELD COUNTY CLERK AND RECORDERS OFFICE; THENCE ALONG SAID NORTHERLY LINE S89°15’10”W 109.21 FEET; THENCE DEPARTING SAID NORTHERLY LINE N24°26’52”W 29.08 FEET; THENCE N65°33’08”E 100.00 FEET TO THE POINT OF BEGINNING. SAID PARCEL OF LAND CONTAINING 0.117 ACRES, MORE OR LESS.