HomeMy WebLinkAbout8813RESOLUTION NO. 8813
A RESOLUTION APPROVING AN AGREEMENT BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND
RELIANCE DEVELOPMENT COMPANY, L.L.P., ET AL.,
RELATING TO THE DEVELOPMENT OF PROPERTY AT THE
NORTHWEST CORNER OF THE INTERSECTION OF FORTINO
BOULEVARD AND HIGHWAY 50 WEST, AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Agreement between the City of Pueblo, a municipal corporation and Reliance
Development Company, L.L.P., John L. Pagano, Robert L. Pagano, Kathleen M. (Pagano) McCall,
Julieann M. (Pagano) Fleckenstein, and Jonna L. Pagano, dated as of September 27, 1999, a copy
of which is attached hereto and incorporated herein, having been approved as to form by the City
Attorney, is hereby approved.
SECTION 2
The President of the City Council is hereby authorized to execute and deliver the Agreement
and the quitclaim deed described in paragraph 1(e) of the Agreement in the name of the City, and
the City Clerk is directed to affix the seal of the City thereto and attest same.
ATTEST:
City erk
INTRODUCED: September 27, 1999
John Verna
Councilperson
APP ED:
esident of the City Council
n
6
TITLE: A RESOLUTION APPROVING AN AGREEMENT BETWEEN AGENDA ITEM #
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND
RELIANCE DEVELOPMENT COMPANY, L.L.P, ET AL.,
RELATING TO THE DEVELOPMENT OF PROPERTY AT THE
NORTHWEST CORNER OF THE INTERSECTION OF FORTINO
BOULEVARD AND HIGHWAY 50 WEST, AND AUTHORIZING
THE PRESIDENT OF CITY COUNCILTO EXECUTE SAME
DEPARTMENT: Transportation & City Attorney DATE: September 21,1999
ISSUE: Should the City Council enter into a contract with Reliance
Development Company and the Pagano Family to accommodate
the development of Walgreen's Pharmacy at the intersection of
Highway 50 West and Fortino Blvd.
RECOMMENDATION: Approval of the Resolution.
BACKGROUND: This agreement allows the City of Pueblo to receive excess right -of-
way from the Colorado Department of Transportation with funds
provided by the Reliance Corporation. The excess right -of -way will
then be traded to the Pagano family for ingress /egress easements
across their property. Reliance Corporation will dedicate
ingress /egress easements on their property which will create free flow
access from Highway 50 West through the Pass Key restaurant and
Walgreen's properties to Fortino Blvd.
FINANCIL IMPACT: There is no financial impact to the City of Pueblo.
AGREEMENT
THIS AGREEMENT is made this ` �� day of September, 1999 among the City of
Pueblo, a municipal corporation ( "City"), John J. Pagano, Robert J. Pagano, Kathleen M.
(Pagano) McCall, Julieann M. (Pagano) Fleckenstein, and Jonna L. Pagano (collectively
"Pagano ") and Reliance Development Company, L.L.P., a Minnesota limited liability
partnership ( "Reliance ").
RECITALS
A. Pagano is the owner of that certain property located in the City of Pueblo
designated as the Pagano Property and legally described on Exhibit A attached
hereto (the "Pagano Property"). As used and described herein, the Pagano
Property also includes certain property (the "Pagano Vacation Accrual ") which
will accrue to the Pagano Property upon the City's vacation of the frontage road
adjoining the Pagano Property ( "Frontage Road ").
B. Reliance is the owner of property located in the City of Pueblo designated as the
Reliance Property and legally described on Exhibit A attached hereto (the
"Reliance Property"). As used and described herein, the Reliance Property also
includes certain property (the "Reliance Vacation Accrual ") which will accrue
to the Reliance Property upon the City's vacation of a portion of the adjoining
Frontage Road. The Reliance Property also includes the property (the "Reliance
Radius Property") which will be deeded to the City as described herein, and the
Reliance Radius Property is also described on Exhibit A .
C. Adjacent to the Pagano Property is property presently owned by the Colorado
Department of Transportation ( "CDOT "; such property owned by CDOT is
referred to herein as the "CDOT Property"). The CDOT Property is designated
as the CDOT Property and legally described on Exhibit A attached hereto. As
used and described herein the CDOT Property also includes certain property (the
"CDOT Vacation Accrual ") which will accrue to the CDOT Property upon the
City's vacation of a portion of the adjoining Frontage Road.
D. The Pagano Property, the Reliance Property and the CDOT Property may
sometimes be defined to collectively as the "Properties ".
W , E. The parties desire to establish certain easements over the CDOT Property, the
Pagano Property and the Reliance Property. The easements will be established
pursuant to a Reciprocal Easement Agreement (the "REA "), a copy of which is
attached hereto as Exhibit B . To establish the REA, the parties have agreed to
perform certain acts, as more fully described herein.
AGREEMENT
Actions by the City. The City agrees to take the following actions:
(a) The City has made application to CDOT, requesting the following actions
(and the City will provide copies of such applications to Reliance and Pagano, and
Reliance and Pagano shall cooperate with the City in making such applications, including
but not limited to signing any consents thereto):
(i) That CDOT declare the CDOT Property to be excess property so that it
may be offered for sale to the City pursuant to CDOT procedures (the
"Excess Land Determination ").
The City will use all reasonable efforts to secure the Excess Land Determination
as soon as reasonably possible.
(b) As soon as reasonably possible after the City Council approves this
Agreement and an Ordinance vacating the northerly one -half of Frontage Road lying
between and adjacent to Highway 50 West and the Properties (the "Ordinance ") the City
will furnish Reliance, Pagano and the Title Company with certified copies of the
Ordinance and resolution (collectively, the "Resolution "). Nothing contained in this
Agreement shall be or be construed to be an agreement or contract to approve either this
Agreement or the Ordinance. The parties recognize that the City Council of City in its
sole discretion may or may not approve this Agreement and/or the Ordinance. Reliance
and Pagano will not object to such vacation and will cooperate with the City in all
respects to ensure that the vacation process is completed.
(c) The approval of this Agreement by City Council of City shall constitute
approval of the City to accept a deed from Reliance for the Reliance Radius Parcel and to
accept an easement over the easterly two feet of the Reliance Property for City sidewalk
purposes.
(d) Using funds provided by Reliance pursuant to the terms of this agreement,
and subject to the approval and issuance of deed by CDOT to the City, the City shall
purchase the CDOT Property from CDOT upon the CDOT's issuance of the Excess Land
Determination and the City shall deposit with Diane David (or such other closer as may
be designated) at First American Heritage Title Company (the "Title Company "), with
an address of 1600 Stout Street, Suite 1000, Denver, CO 80202 (phone: 303 -446 -2555)
the original CDOT deed transferring title to the CDOT Property to the City together with
such other transfer declarations or affidavits as the Title Company may reasonably
require of CDOT or the City to record the deed (collectively, the "CDOT Deed ").
(e) Upon purchase of the CDOT Property from CDOT and performance by
Pagano of all the terms of this Agreement to be performed by Pagano, the City agrees to
immediately execute and deliver to the Title Company a quitclaim deed, in recordable
form and in form typically used by the City to convey property, transferring title to the
CDOT Property to Pagano, together with such other transfer declarations or affidavits as
the Title Company may reasonably require of the City to record the deed (collectively,
the "Pagano Deed ").
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1
(f) The City hereby acknowledges its approval of the REA and confirms that
the REA satisfies the City's requirements that cross - easements be created between the
Properties to provide for access over the Properties to and from Fortino Boulevard and
Highway 50 West.
2. Actions by Reliance. Reliance agrees to take the following actions:
(a) Upon full execution of this Agreement, Reliance will execute the REA and
deposit the same with the Title Company. The parties hereby instruct the Title Company
to record the REA and to retain the recorded original for refiling, if necessary, after the
Pagano Deed is recorded. Reliance shall also deposit with the Title Company, upon full
execution of this Agreement, a Reaffirmation Agreement in the form of Exhibit C
attached hereto (the "Reaffirmation ") to be recorded by the Title Company upon the
filing of the Pagano Deed affirming that the easements created by the REA bind and
benefit the CDOT Property and the Reliance, Pagano and CDOT Vacation Accruals. To
the extent the Title Company reasonably requires any changes or amendments thereto to
accommodate the spirit of the transactions contemplated hereby or the recording thereof,
Reliance shall re- execute or amend the REA with such changes.
(b) Reliance shall make application to CDOT, requesting an access permit
from Highway 50 West to the CDOT property, in the location shown on Exhibit B to the
REA (the "Access Permit ").
(c) Upon the vacation of a portion of Frontage Road, Reliance shall deliver to
the Title Company for recording (i) an originally executed deed in the form of Exhibit D
attached hereto transferring title to the Reliance Radius Property to the City together with
such transfer declarations as the Title Company may reasonably require of Reliance to
record the deed (the "City Deed "); and (ii) an originally executed easement over the
easterly two (2) feet of the remaining portion of the Reliance Property in favor of the City
for sidewalk purposes in the form of Exhibit E (the "Easement ").
(d) Reliance shall pay all documentary taxes, transfer taxes and recording fees
as are necessary to record the REA, the CDOT Deed, the Pagano Deed and the City
Deed.
(e) In the event that the Excess Land Determination is not made by CDOT
within 90 days hereof, Reliance shall, on behalf of itself and Pagano, make application
for the Access Permit to permit use of the CDOT Property for access to the Highway 50
West for the benefit of the Pagano Property, the Reliance Property and the property lying
immediately west of the CDOT Property, and Pagano agrees to join in and cooperate in
such application process.
3. Actions by Pagano Pagano agrees to take the following actions:
(a) Upon full execution of this Agreement, Pagano shall execute and Pagano
shall cause its lender of record to execute duplicate originals of the REA and deliver them
to Diane David at the Title Company to be recorded in accordance with the terms of this
Agreement, together with duplicate originals of the Reaffirmation to be recorded by the
Title Company upon the filing of the Pagano Deed affirming that the easements created
by the REA bind and benefit the CDOT Property and the Reliance, Pagano and CDOT
Vacation Accruals. To the extent the Title Company reasonably requires any changes to
the REA to accommodate the spirit of the transactions contemplated hereby or the
recording thereof, Pagano shall re- execute or amend the REA with such changes.
(b) Pagano shall not reject conveyance of the CDOT Property to Pagano
pursuant to the Pagano Deed.
(c) Prior to recording of the REA or the Reaffirmation, Pagano shall not sell,
transfer, pledge, mortgage or otherwise encumber the Pagano Property without first
providing to the City, Reliance and the Title Company (i) evidence that such action will
not disturb or otherwise affect the easements created by the REA, and (ii) a consent to the
REA (in form included therein for Pagano's lender) from the party to whom such sale,
transfer, pledge, mortgage or encumbrance is made.
4. City's Work; CDOT's Work. The City shall be responsible for completing all
work required by the City in the right of way of Fortino Boulevard, including but not limited to
construction of public sidewalks, installation of curb and gutter, and laying of asphalt, but
excluding the Fortino driveway access, as generally depicted in the Fortino Boulevard plan
approved by City and on file in the Office of the City's Director of Public Works . No utility
work is included in the City's work as none is required. Reliance shall be responsible for utility
connections relating to its project. It is the understanding of Reliance and the City, that CDOT
will do the work required to improve the corner of Fortino Boulevard and Highway 50 West,
including but not limited to construction of a right turn lane, public sidewalks with handicap
ramps and traffic island, installation of curb and gutter, laying of asphalt, relocation of the traffic
signal, and all related utility improvements and utility relocation as further described in CDOT's
I -25 and US 50 construction plans.
5. Reliance's Work. Upon completion of the actions described in Sections 1, 2 and
3 above, Reliance shall be responsible for completing the following work:
(a) Reliance shall, between the Reliance Radius Property and the west side of
Y the access point on the southerly boundary of the Properties, do what is required
according to the plans therefore approved by the City and CDOT.
(b) Reliance shall adjust the grades between the MOT Property, the Pagano
Property and the adjoining property to the west so as to provide a smooth transition of the
grades between the two parcels over the driveways established by the REA (or, in the
event that the CDOT Property is not conveyed to Pagano, then between the CDOT
Property and the Pagano Property at the access points permitted by the final Access
Permit), and Reliance shall adjust the grades between the Pagano Property, the Reliance
Property and the adjoining property to the west so as to provide a smooth transition of the
grades between the two parcels over the driveways established by the REA, together with
the adjoining property to the west..
(c) Upon the Title Company's receipt of the CDOT Deed and the Pagano
Deed from the City, Reliance shall pave the CDOT Property, including striping for
parking as shown on the site plan attached as Exhibit B to the REA, and Reliance shall
relocate the existing freestanding sign on the Pagano Property to a location approved by
the City and Pagano after the conveyance of CDOT Property to Pagano.
(d) Reliance shall pave all the Driveways as that term is defined in the REA
(or in the event that the CDOT Property is not conveyed to Pagano, then all the
Driveways on the Reliance Property and the Pagano Property and those portions of the
Driveways as are permitted by the Access Permit).
6. Payment by Reliance. In order to fund the purchase of the CDOT Property by the
City, Reliance agrees to deposit with the City on the date of execution hereof, the sum of
$20,000.00, which is the City's and Reliance's reasonable estimate of the purchase price that
CDOT will require for purchase of the CDOT property. Said funds shall be used by the City to
purchase the CDOT Property. In the event the purchase price is more or less than $20,000.00 the
following shall apply: Pagano shall be paid the overage as soon as reasonably possible after the
City acquires title to the CDOT Property, or Reliance shall deposit with the City the shortfall
upon the City's notice that the purchase price is greater than $20,000, as the case may be. The
City shall not be obligated to purchase the CDOT Property until after the shortfall is deposited by
Reliance with the City. In the event the CDOT property is not conveyed to Pagano with one year
from the date hereof, such funds shall be paid to Pagano.
7. Right of En a . Reliance shall have the right to enter upon the Pagano Property
and the CDOT Property (after the conveyance thereof to the City) to do the work described
herein. Reliance will use its best efforts not to disturb any business being conducted on the
Pagano parcel, and will indemnify and hold the owner of the Pagano parcel harmless from any
liability, demands, causes of action or mechanic lien claims relating to such work.
8. Recording Order; Cooperation. The parties agree that the documents
contemplated hereby shall be recorded in the following order, as and when the same are available
for recording: evidence of vacation of the frontage road, the REA, the City Deed, the Easement,
the CDOT Deed, the Pagano Deed and the Reaffirmation. The parties shall cooperate with the
Title Company in regard to such recording, and shall make any changes to the documents as are
required by the Title Company to render the documents recordable. Further, the parties shall
execute and deliver to the Title Company such transfer declarations, affidavits or other
documents as are typically provided by parties transferring or accepting transfers of title to real
property.
9. Miscellaneous.
(a) No amendment, modification or rescission of this Agreement shall be
effective unless in writing and signed by the parties hereto.
(b) The parties hereto shall hold the Title Company harmless from any claims
or expenses arising out of this Agreement, except for Title's negligence hereunder or its
failure to act in the manner herein stated or to account for the documents to be delivered
and held by the Title Company.
(c) This instrument may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
(d) This Agreement shall be governed by the laws of Colorado.
(e) Notwithstanding anything contained herein to the contrary, in the event
that all of the documents to be delivered to the Title Company are not so delivered within
one year of the date hereof and the Title Company has not received written instructions of
the parties within thirty days after such date, then the Title Company may, at its election,
deposit the documents and this Agreement with a court having jurisdiction over the
Properties or continue to hold such documents until the obligations of the parties
hereunder have been performed.
(e) This Agreement shall be binding upon and inure to the parties' successors
and assigns, but no party hereto shall assign its rights or obligations hereunder without
the prior and express written consent of the others.
(f) Upon completion by Reliance of the work described in Sections 5(a) and
5(b) above, and the acceptance of the same by the City, the City agrees to deliver to
Reliance a written confirmation thereof, and such confirmation shall bind all parties
hereto as relates to such work.
(g) Upon completion by Reliance of the work to be done for the benefit of
Pagano, Pagano agrees to deliver to Reliance a written confirmation thereof, and such
confirmation shall bind all parties hereto as relates to such work.
(h) Notwithstanding the provision of this Agreement to the contrary, no term
or provision of the Agreement shall be construed or interpreted as a waiver, express or
implied, of any of the immunities, rights, benefits, protections or other provisions of the
Colorado Governmental Immunity Act, §24 -10 -101, et seq., C.R.S. (the "Act "). The
parties understand and agree that liability for claims for injuries or damage to persons or
property arising out of the alleged negligence of the City of Pueblo, its officers,
employees, or agents, is controlled and limited by the provisions of the Act.
(i) Financial obligations of the City payable after the current fiscal year are
contingent upon funds for that purpose being appropriated, budgeted, and otherwise made
available.
0) Inasmuch as no subdivision or resubdivision is contemplated by the terms
of this transaction, no Subdivision Improvements Agreement shall be required.
IN `WITNESS WHEREOF, the City of Pueblo has executed this Agreement on the date
indicated.
(SEAL)
CITY
ATTEST : - � ':�. By
City Oerk esident of the City Council
Approved as to form:
By. _.�.. fZ" ..r ._
City Attorne
IN WITNESS WHEREOF, John J. Pagano, Robert J. Pagano, Kathleen M. (Pagano)
McCall, Julieann M. (Pagano) Fleckenstein, and Jonna L. Pagano has executed this Agreement
on the date indicated.
9�W4a4 f""Q/
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Kathleen M. (Pagano cCall
Jul dnriM.
Jonna L. Pagano
STATE OF COLORADO )
) SS.
COUNTY OF PUEB )
On this. ` �d
Z �ay of , 1999, before me appeared John J. Pagano,
Robert J. Pagano, Kathleen 4(ag McCall, Julieann M. (Pagano) Fleckenstein, and Jonna
L. Pagano, to me personally known, who, being by me duly sworn, did say that they are the
owners of the Pagano Property, respectively and that said instrument was signed on behalf of
said Owners respectively, and such acknowledged said instrument to be the free act and deed of
said Owners. 1i
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IN WITNESS WHEREOF, Reliance Development Company, L.L.P. has executed this
Agreement on the date indicated.
RELIANCE DEVELOPMENT COMPANY,
L.L.P., a Minnesota limited liability partnership
By HTW Investment Partners, Inc., a Minnesota
corporation and its general partner
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
, its President
On this�Aday of , 1999, before me, the undersigned, a Notary Public
in and for said state, personal y appeared Richard J. Hauser, to me known to be the President of
HTW Investment Partners, Inc., a Minnesota corporation and the general partner of Reliance
Development Company, L.L.P., the partnership that executed the foregoing instrument, and
acknowledged to me that said instrument is the free and voluntary act and deed of said
partnership and that he is authorized to execute the foregoing instrument.
WITNESS my hand and official seal.
My commission expires 1/j�// -�
d A AAAAAAAAAAA.AAAAAAAAAAAMNAAAAAM n .:
MIRIAM R- HAAK
NOTARY P! IBUC - MINNESOTA >
My Commission Exu as Jan 31, 2:x'0
Notary Public
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IN WITNESS WHEREOF, First American Heritage Title Company acknowledges that is
has reviewed the attached Agreement and agrees to take assume the obligations of the Title
Company therein specified.
FIRST AMERICAN HERITAGE TITLE
COMPANY
By
Its �C
Date of Execution:
10
EXHIBIT A
Legal Description of the Properties and Reliance Radius Property
Pagano Property
Lot 1, Block 1, Northridge No. 13, together with the northerly 25 feet of Frontage
Road, as vacated, adjacent to said Lot 1, County of Pueblo, Colorado. The
sidelines of the northerly 25 feet of said Frontage Road are extended to terminate
at the southerly extensions of the east and west lines of said Lot 1.
Reliance Property
Lots 1, 2, 5, 6, 7, and 10, Block 5, Gateway Subdivision First Filing and Lot Line
Rearrangement of Lots 3 and 4, Block 5, Gateway Subdivision First Filing
recorded July 8, 1985 in Book 2248 at Page 692, together with the northerly 25
feet of Frontage Road, as vacated, adjacent to said Lots 1 and 2 of said
Subdivision and to said Lot Line Rearrangement. The sidelines of said Frontage
Road, as vacated, are extended westerly to terminate at the southerly extension of
the west line of said Lot Line Rearrangement and extended easterly to terminate
at the southerly extension of the east line of said Lot 1 of said Subdivision, all in
County of Pueblo State of Colorado,
except the following described parcel (the "Reliance Radius Property "):
A parcel of land located within the within Section 14, Township 20 South, Range 65
West, of the 6` Principal Meridian, County of Pueblo, State of Colorado, being described
as;
a portion of Lots 1, Block 5, Gateway Subdivision, First Filing, as recorded in Book
1991, at Page 460; and a portion of the vacated Frontage Road adjacent to said Lot 1,
Block 5, all of the County of Pueblo records, and being more particularly described as
follows:
Beginning at a point at the intersection of the Southerly line of the vacated Frontage Road
and the Southerly prolongation of the Easterly line of said Lot 1;
Thence N77 °53'05 "W, along said Southerly line a distance of 25.00 feet; Thence
N44 °07' 14 "E, departing said Southerly line, a distance of 47.17 feet, to a point on the
Easterly line of said Lot 1; Thence S12. 0 06'55 "W, along said Easterly line, a distance of
40.00 feet, to the point of beginning of this description.
Said parcel contains 500.0 square feet, more or less.
CDOT Property
Lot 2, Block 1, Northridge No. 13, together with the northerly 25 feet of Frontage Road,
as vacated, adjacent to said Lot 2, County of Pueblo, Colorado. The sidelines of the
northerly 25 feet of said Frontage Road are extended to terminate at the southerly
extensions of the east and west lines of said Lot 2.
12
EXHIBIT B
Reciprocal Easement Agreement
12
RETURN RECORDED DOCUMENT TO
Walgreen Co.
200 Wilmot Road, Dept. #2252
Deerfield, Illinois 60015
Attn: Law Department
RECIPROCAL EASEMENT AGREEMENT
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THIS RECIPROCAL EASEMENT AGREEMENT WITH COVENANTS,
CONDITIONS AND RESTRICTIONS (the "Agreement ") is made and entered into this
day of September, 1999, by and between John J. Pagano, Robert J. Pagano,
Kathleen M. (Pagano) McCall, Julieann M. (Pagano) Fleckenstein, and Jonna L.
Pagano, (Collectively "Parcel A Owner"), (the "Parcel A Owner"), and Reliance
Development Company, L.L.P., a Minnesota Limited Liability Partnership (the "Parcel B
Owner").
RECITALS
A. The Parcel A Owner is the owner of that certain real property situated in
the City of Pueblo, County of Pueblo, State of Colorado, more particularly
described on Exhibit "A" attached hereto and incorporated herein by this
reference ( "Parcel A "). Upon the vacation of the northerly half of Frontage Road
adjacent to Parcel A and the conveyance of property immediately west of Parcel
A (hereafter referred to as the "CDOT Property" and being legally described as
Lot 2, Block 1, Northridge No. 13, Pueblo County, Colorado, together with any
land accruing to said property due to the vacation of adjacent Frontage Road),
Parcel A shall be deemed to include such portion of vacated Frontage Road
accruing thereto and the CDOT Property, as more fully described on Exhibit "A -1"
attached hereto and incorporated herein by this reference. All references to
Parcel A set forth herein are intended to refer to Parcel A as described in Exhibit
"A -1" to the extent such vacation and conveyance of the CDOT Property have or
.,,. will occur.
B. The Parcel B Owner is the owner of that certain real property situated in
the City of Pueblo, County of Pueblo, State of Colorado, more particularly
described on Exhibit "A" attached hereto and incorporated herein by this
29295.4KMM
reference ( "Parcel B "). Upon the vacation of the northerly half of Frontage Road
adjacent to Parcel B and the conveyance of a portion of Parcel B to the City of
Pueblo for right -of way purposes (such portion being referred to hereafter as the
"Radius Property "), Parcel B shall be deemed to include such portion of vacated
Frontage Road accruing thereto and exclude the Radius Property, as more fully
described on Exhibit "A -1" attached hereto and incorporated herein by this
reference. All references to Parcel B set forth herein are intended to refer to
Parcel B as described in Exhibit "A -1" to the extent such vacation and
conveyance of the Radius Property to the City of Pueblo have or will occur.
C. The Parcel B Owner intends to develop Parcel B for use by Walgreen
(hereinafter defined).
D. The Parcel A Owner operates a restaurant on Parcel A and intends to continue
the operation of a restaurant on Parcel A.
E. The parties hereto desire to impose certain easements upon the Parcels, and to
establish certain covenants, conditions and restrictions with respect to said
Parcels, for the mutual and reciprocal benefit and complement of Parcel A and
Parcel B and the present and future owners and occupants thereof, on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the above premises and of the
covenants herein contained, the Parcel A Owner and the Parcel B Owner hereby
covenant and agree that the Parcels and all present and future owners and occupants
of the Parcels shall be and hereby are subject to the terms, covenants, easements,
restrictions and conditions hereinafter set forth in this Agreement, so that said Parcels
shall be maintained, kept, sold and used in full compliance with and subject to this
Agreement and, in connection therewith, the parties hereto on behalf of themselves and
their respective successors and assigns covenant and agree as follows:
AGREEMENTS
Definitions For purposes hereof:
(a) The term "Owner" or "Owners" shall mean the Parcel A Owner (as
to Parcel A) and the Parcel B Owner (as to Parcel B) and any and all
successors or assigns of such persons as the owner or owners of fee
simple title to all or any portion of the real property covered hereby,
whether by sale, assignment, inheritance, operation of law, trustee's sale,
foreclosure, or otherwise, but not including the holder of any lien or
encumbrance on such real property.
(b) The term "Parcel" or "Parcels" shall mean each separately
identified parcel of real property now constituting a part of the real property
subjected to this Agreement as described on Exhibit "A ", that is, Parcel A
and Parcel B, and any land accruing to the Parcels due to the vacation of
adjacent roadways and any future subdivisions thereof, as such
descriptions may be modified as set forth in Exhibit "A -1" hereof to reflect
the vacation of the northerly half of adjacent Frontage Road, the
conveyance of the CDOT Property to the Owner of Parcel A and the
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conveyance of the Radius Property by the Owner of Parcel B to the City of
Pueblo.
(c) The term "Adjacent Land" shall mean and refer to the land lying
west of the CDOT Property legally described as Lot 2, Block 1, Northridge
No. 13, Pueblo County, Colorado.
(d) The term "Permittees" shall mean the tenant(s) or occupant(s) of a
Parcel and the Adjacent Land, and the respective employees, agents,
contractors, customers, invitees and licensees of (i) the Owner of such
Parcel and Adjacent Land, and /or (ii) such tenant(s) or occupant(s).
(e) The term "Walgreen" or "Walgreens" shall mean Walgreen Co., an
Illinois corporation (or any of its affiliates, subsidiaries, successors or
assigns). Walgreen shall be deemed a third party beneficiary to this
Agreement.
(f) The term "Walgreen Lease" or "Walgreens" shall mean that Lease of
Parcel B from the Parcel B Owner as landlord to Walgreen as tenant, and
any amendments, extensions or replacements thereof.
(g) The term "Driveways" shall mean those driveways and related
driveway improvements, paving, curbing, entrances and exits, in the
location on the Parcels as shown shaded on the site plan attached hereto
as Exhibit "B" and as legally described on Exhibit "C" attached hereto;
provided, however, that such term shall only include those driveways and
related driveway improvements on and to the CDOT Property as shown
on Exhibit "B° to the extent that title to the CDOT Property has been
transferred to the Owner of Parcel A.
2. Easements
2.1 Grant of Reciprocal Easements Subject to any express conditions,
limitations or reservations contained herein, the Owners hereby grant, establish,
covenant and agree that the Parcels, and all Owners and Permittees of the
Parcels, shall be burdened by, and the Parcels and the Adjacent Land and the
Owners and all Permittees of the Parcels and the Adjacent Land shall be
benefitted by, the following nonexclusive, perpetual and reciprocal easements
which are hereby imposed upon the Parcels and all present and future Owner's
and Permittees of the Parcels:
(a) An easement for reasonable access, ingress and egress over the
Driveways.
29295.4KMM
Any use of the Driveways by the owner or Permittees of the Adjacent Land shall
be governed by the terms of this Agreement, and by using or permitting any of its
Permittees to use the Driveways, the owner of the Adjacent Land shall be
deemed to have agreed to the terms hereof.
2.2 Indemnification Each Owner (and the owner of the Adjacent Land)
having rights with respect to an easement granted hereunder shall indemnify and
hold the Owner whose Parcel is subject to the easement harmless from and
against all claims, liabilities and expenses (including reasonable attorneys' fees)
relating to accidents, injuries, loss, or damage of or to any person or property
arising from the negligent, intentional or willful acts or omissions of such Owner,
its contractors, employees, agents, or others acting on behalf of such Owner.
2.3 No Blocking The Driveways shall in no event be blocked, closed, altered,
changed or removed and shall at all times remain in place as shown on Exhibit B,
provided however that the curb cuts, curbing and parking partially located in the
Driveways as shown on Exhibit B, and signage as may be required or permitted
by the City of Pueblo, may be located in the Driveways.
3. Maintenance Each Owner of a Parcel covenants at all times during the term
hereof to operate and maintain or cause to be operated and maintained at its
expense all Driveways located on its Parcel in good order, condition and repair.
Maintenance of Driveways shall include, without limitation, maintaining and
repairing all sidewalks and the surface of the parking and roadway areas,
removing all papers, debris and other refuse from and periodically sweeping all
parking and road areas to the extent necessary to maintain the same in a clean,
safe and orderly condition, maintaining marking, directional signs, lines and
striping as needed, and performing any and all such other duties as are
necessary to maintain such Driveways in a clean, safe and orderly condition.
4. Taxes and Assessments. Each Owner shall pay all taxes, assessments, or
charges of any type levied or made by any governmental body or agency with
respect to its Parcel.
5. Remedies and Enforcement
5.1 All Legal and Equitable Remedies Available In the event of a breach or
threatened breach by any Owner, the owner of the Adjacent Land, or any
Permittees of any of the terms, covenants, restrictions or conditions hereof, the
other Owner(s) shall be entitled forthwith to full and adequate relief by injunction
and /or all such other available legal and equitable remedies from the
consequences of such breach, including payment of any amounts due and /or
specific performance.
5.2 No Termination For Breach Notwithstanding the foregoing to the
contrary, no breach hereunder shall entitle any Owner to cancel, rescind, or
otherwise terminate this Agreement. No breach hereunder shall defeat or render
invalid the lien of any mortgage or deed of trust upon any Parcel made in good
faith for value, but the easements, covenants, conditions and restrictions hereof
shall be binding upon and effective against any Owner of such Parcel and any
owner of the Adjacent Land whose title thereto is acquired by foreclosure,
trustee's sale, or otherwise.
g:Vormsbnrrea.doc
6. Term The easements, covenants, conditions and restrictions contained in this
Agreement shall be effective commencing on the date hereof and shall remain in
full force and effect thereafter in perpetuity, unless this Agreement is modified,
amended, canceled or terminated by the written consent of all then record
Owners of Parcel A and Parcel B and the City of Pueblo in accordance with
paragraph 7.2 hereof.
7. Miscellaneous
7.1 Attorneys' Fees In the event a party institutes any legal action or
proceeding for the enforcement of any right or obligation herein contained, the
prevailing party after a final adjudication shall be entitled to recover its costs and
reasonable attorneys' fees incurred in the preparation and prosecution of such
action or proceeding.
7.2 Amendment
(a) The parties agree that the provisions of this Agreement may be
modified or amended, in whole or in part, or terminated, only by the written
consent of all record Owners of Parcel A and Parcel B and of the City of
Pueblo, evidenced by a document that has been fully executed and
acknowledged by all such record Owners and the City of Pueblo recorded
in the official records of the County Recorder of Pueblo County, Colorado.
(b) Notwithstanding subparagraph 7.2(a) above to the contrary, no
termination of this Agreement, and no modification or amendment of this
Agreement shall be made nor shall the same be effective unless the same
has been expressly consented to in writing by Walgreen (during the
continuance of the Walgreen Lease) and by the City of Pueblo.
7.3 Consents Wherever in this Agreement the consent or approval of the
Parcel A Owner is required, unless otherwise expressly provided herein, such
consent or approval shall not be unreasonably withheld or delayed. Any request
for consent or approval shall: (a) be in writing; (b) specify the section hereof
which requires that such notice be given or that such consent or approval be
obtained; and (c) be accompanied by such background data as is reasonably
necessary to make an informed decision thereon. The consent of an Owner
under this Agreement, to be effective, must be given, denied or conditioned
expressly and in writing. Any consent of the Parcel B Owner or the City of
-+k Pueblo may be given, denied or conditioned by such Parcel B Owner's and the
City of Pueblo's sole and absolute discretion.
29295.4KMM
7.4 No Waiver No waiver of any default of any obligation by any party hereto
shall be implied from any omission by the other party to take any action with
respect to such default.
7.5 Covenants to Run with Land It is intended that each of the easements,
covenants, conditions, restrictions, rights and obligations set forth herein shall
run with the land and create equitable servitudes in favor of the real property
benefitted thereby, shall bind every person having any fee, leasehold or other
interest therein and shall inure to the benefit of the respective parties and their
successors, assigns, heirs, and personal representatives.
7.6 Grantee's Acceptance The grantee of any Parcel or any portion thereof,
by acceptance of a deed conveying title thereto or the execution of a contract for
the purchase thereof, whether from an original party or from a subsequent owner
of such Parcel, shall accept such deed or contract upon and subject to each and
all of the easements, covenants, conditions, restrictions and obligations
contained herein. By such acceptance, any such grantee shall for himself and
his successors, assigns, heirs, and personal representatives, covenant, consent,
and agree to and with the other party, to keep, observe, comply with, and
perform the obligations and agreements set forth herein with respect to the
property so acquired by such grantee.
7.7 Separability Each provision of this Agreement and the application thereof
to Parcel A and Parcel B are hereby declared to be independent of and
severable from the remainder of this Agreement. If any provision contained
herein shall be held to be invalid or to be unenforceable or not to run with the
land, such holding shall not affect the validity or enforceability of the remainder of
this Agreement. In the event the validity or enforceability of any provision of this
Agreement is held to be dependent upon the existence of a specific legal
description, the parties agree to promptly cause such legal description to be
prepared. Ownership of both Parcels by the same person or entity shall not
terminate this Agreement nor in any manner affect or impair the validity or
enforceability of this Agreement.
7.8 Time of Essence Time is of the essence of this Agreement.
7.9 Entire Agreement This Agreement contains the complete understanding
and agreement of the parties hereto with respect to all matters referred to herein,
and all prior representations, negotiations, and understandings are superseded
hereby.
7.10 Notices Notices or other communication hereunder shall be in writing and
shall be sent certified or registered mail, return receipt requested, or by other
national overnight courier company, or personal delivery. Notice shall be
deemed given upon receipt or refusal to accept delivery. Each party may change
from time to time their respective address for notice hereunder by like notice to
the other party. The notice addresses of the Parcel A Owner and the Parcel B
Owner and Walgreen and the City are as follows:
gAformsbnrrea.doc
Walgreen: Walgreen Co.
Attention: Law Department
Mail Stop No. 2252
200 Wilmot road
Deerfield, Illinois 60015
Parcel A Owner John J. Pagano
Pass Key 50 West Restaurant
1901 Highway 50 West
Pueblo, Colorado 81008
Parcel B Owner Reliance Development Company, L.L.P.
Attn: Richard J. Hauser
527 Marquette Avenue
Rand Tower, Suite 1000
Minneapolis, Minnesota 55402
City of Pueblo City of Pueblo
Attn: Director of Public Works
211 E. D Street
Pueblo, Colorado 81003.
7.11 Governing Law The laws of the State in which the Parcels are located
shall govern the interpretation, validity, performance, and enforcement of this
Agreement.
[THIS PAGE IS INTENTIONALLY LEFT BLANK]
1W.
29295.4KMM
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first written above.
John J. Pagano
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this day of September, 1999, before me, the undersigned, a Notary
Public in and for said state, personally appeared John J. Pagano, and acknowledged to
me that his execution of this instrument is his free and voluntary act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
-W
glormsbnrrea.doc
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first written above.
Robert J. Pagano
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this day of September, 1999, before me, the undersigned, a Notary
Public in and for said state, personally appeared Robert J. Pagano, and acknowledged
to me that his execution of this instrument is his free and voluntary act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
29295.4KMM
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first written above.
Kathleen M. (Pagano) McCall
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this day of September, 1999, before me, the undersigned, a Notary
Public in and for said state, personally appeared Kathleen M. (Pagano) McCall, and
acknowledged to me that her execution of this instrument is her free and voluntary act
and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
gAformMonrrea.doc
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first written above.
Julieann M. (Pagano) Fleckenstein
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this day of September, 1999, before me, the undersigned, a Notary
Public in and for said state, personally appeared Julieann M. (Pagano) Fleckenstein,
and acknowledged to me that her execution of this instrument is her free and voluntary
act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
29295.4KMM
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first written above.
Jonna L. Pagano
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this day of September, 1999, before me, the undersigned, a Notary
Public in and for said state, personally appeared Jonna L. Pagano, and acknowledged
to me that her execution of this instrument is her free and voluntary act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
V"
, g:Vormsbnrma.doc
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first written above.
Reliance Development Company, L.L.P.,
a Minnesota limited liability partnership
By HTW Investment Partners, Inc., a
Minnesota corporation, its general partner
IS
Richard J. Hauser, its President
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
On this day of September, 1999, before me, the undersigned, a Notary Public
in and for said state, personally appeared Richard J. Hauser, to me known to be the
President of HTW Investment Partners, Inc., a Minnesota corporation and the general
partner of Reliance Development Company, L.L.P., the partnership that executed the
foregoing instrument, and acknowledged to me that said instrument is the free and
voluntary act and deed of said partnership and that he is authorized to execute the
foregoing instrument.
WITNESS my hand and official seal.
My commission expires
Notary Public
29295.4KMM
CONSENT TO DECLARATION
The undersigned, being the holder of that certain Deed of Trust dated September
1, 1989, recorded September 5, 1989 in Book 2459 at Page 691 of the Records of the
Clerk of Pueblo County, Colorado, hereby consents to the within Declaration of
Restrictions and Easements made by John J. Pagano, Robert J. Pagano, Kathleen M.
(Pagano) McCall, Julieann M. (Pagano) Fleckenstein and Jonna L. Pagano and
Reliance Development Company, L.L.P., dated September , 1999 to which this
Consent is attached and hereby consents to and joins in the grant of easements set
forth therein and agrees that the easements, covenants and agreements contained
therein shall survive foreclosure of said instrument.
IN WITNESS WHEREOF, the undersigned has made and executed this Consent
to Declaration effective as of September ' 1999.
U.S. BANK NATIONAL ASSOCIATION
c
Its
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me, a Notary Public, on
September , 1999, by the
of U.S. Bank National Association, a national banking
association, on behalf of the association.
Witness my hand and official seal.
My commission expires
Notary Public
-,
sz
9MOrmsbnrrea.doc
CONSENT TO DECLARATION
The undersigned, being the holder of that certain Deed of Trust dated September
1, 1989, recorded September 5, 1989 in Book 2459 at Page 695 and re- recorded
September 8, 1999 in Book 2460 at Page 268 of the Records of the Clerk of Pueblo
County, Colorado, hereby consents to the within Declaration of Restrictions and
Easements made by John J. Pagano, Robert J. Pagano, Kathleen M. (Pagano) McCall,
Julieann M. (Pagano) Fleckenstein and Jonna L. Pagano and Reliance Development
Company, L.L.P., dated September , 1999 to which this Consent is attached and
hereby consents to and joins in the grant of easements set forth therein and agrees that
the easements, covenants and agreements contained therein shall survive foreclosure
of said instrument.
IN WITNESS WHEREOF, the undersigned has made and executed this Consent
to Declaration effective as of September ' 1999.
SCEDD DEVELOPMENT COMPANY
By
Its
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me, a Notary Public, on
September , 1999, by the
of SCEDD Development Company, a
, on behalf of the
Witness my hand and official seal.
My commission expires
�7A
Notary Public
29295.4KMM
EXHIBIT "A"
(Legal Descriptions of Parcels A and B before Vacation of Frontage Road, Conveyance
of CDOT Property to the Parcel A Owner and Conveyance of the Radius Property to the
City of Pueblo)
Parcel A Legal Description:
Lot 1 Block 1, Northridge No. 13, Pueblo County, Colorado
Parcel B Legal Description:
Lots 1, 2, 5, 6, 7, and 10, Block 5, Gateway Subdivision First Filing and Lot Line
Rearrangement of Lots 3 and 4, Block 5, Gateway Subdivision First Filing recorded July
8, 1985 in Book 2248 at Page 692, Pueblo County, Colorado.
Exhibit "A -1"
(Legal Descriptions of Parcels A and B After Vacation of Frontage Road, Conveyance
of title to the CDOT Property to the Parcel A Owner and Conveyance of the Radius
Property to the City of Pueblo)
Parcel A Legal Description:
Lots 1 and 2, Block 1, Northridge No. 13, together with the northerly 25 feet of Frontage
Road, as vacated, adjacent to said Lots 1 and 2, County of Pueblo, Colorado. The
sidelines of the northerly 25 feet of said Frontage Road are extended to terminate at the
southerly extensions of the west line of said Lot 2 and the east line of said Lot 1.
Parcel B Legal Description:
Lots 1, 2, 5, 6, 7, and 10, Block 5, Gateway Subdivision First Filing and Lot Line
Rearrangement of Lots 3 and 4, Block 5, Gateway Subdivision First Filing recorded July
8, 1985 in Book 2248 at Page 692, together with the northerly 25 feet of Frontage Road,
as vacated, adjacent to said Lots 1 and 2 of said Subdivision and to said Lot Line
Rearrangement. The sidelines of said Frontage Road, as vacated, are extended
westerly to terminate at the southerly extension of the west line of said Lot Line
Rearrangement and extended easterly to terminate at the southerly extension of the
east line of said Lot 1 of said Subdivision, all in County of Pueblo State of Colorado,
except the following described parcel:
A parcel of land located within the within Section 14, Township 20 South, Range 65
West, of the 6th Principal Meridian, County of Pueblo, State of Colorado, being
described as;
a portion of Lots 1, Block 5, Gateway Subdivision, First Filing, as recorded in Book
1991, at Page 460; and a portion of the vacated Frontage Road adjacent to said Lot 1,
Block 5, all of the County of Pueblo records, and being more particularly described as
follows:
Beginning at a point at the intersection of the Southerly line of the vacated Frontage
Road and the Southerly prolongation of the Easterly line of said Lot 1;
Thence N77 0 53'05 "W, along said Southerly line a distance of 25.00 feet; Thence
N44 1 07'14 "E, departing said Southerly line, a distance of 47.17 feet, to a point on the
Easterly line of said Lot 1; Thence S1 2. along said Easterly line, a distance of
40.00 feet, to the point of beginning of this description.
Said parcel contains 500.0 square feet, more or less.
Exhibit "B"
Site Plan Showing Driveways
C7J
Exhibit "C"
Legal Description of Driveways
-Ar
Exhibit "A
A parcel of land located within the within Section 14, Township 20 South, lunge 65
West, of the b ie ` Principal Meridian„ County of Pueblo, State of Colorado, being, described
as;
A, portion of Lots 1.2 & 10. Block 5, Gateway Subdivision, First Filing, as recorded in
Book 1991, al Page 460; a portion of Lot Line Rearrangetnent, Lots 3 and 4, Block 5,
Gateway Subd, i , as recorded in Book 2248 at page 692; a portion of Lot 1 and 2, Block
1, Northridge No. 13, as recorded in Book 2456 at Page 26, and a portion of the vacated
Frontage Roed adjiLcent to said Lot 2, Block 1, all of the County of Pueblo records, and
being snore particularly described as follows:
1. The Westerly 24,00 feet of the Easterly 54.50 feet and the Southerly 28.00 feet of the
Westerly 20.50 feet of Lot 1, Block 5, Gateway Subdivision First Filing_
2. The Southerly 28,00 feet of Lot 2, Bloch 5, Gateway Subdivision First Filing.
3. All of Lot 10, Bk>ck 5, Gateway Subdivision, First Hirt& excepting; therefrom the
Southerly 22.41 feet of the Westerly 78.81 feet.
4. The Northerly 24.00 feet of Lot 1, Block 1, Northridge No. 13.
5. The Southerly 28.00 feet of Lot 1, Block 1, Northridge No. 13., as rot:asured
perpendicularly from the Southerly line of Lot 1, with the Northerly line of said
dcuoription being lengthened or shortened to iutersoct With the Easterly and Westerly
lines of Lot 1.
The above - mentioned dexcriptions being together with the following described parcel of
land located within said Lot line Rearrangement of Lots 3 and 4, Gateway 1' Subd.;
Beginning at a point at the Northeasterly corner of said Lot Line Rearrangement;
'thence S12 °06'55 "W, along the rKaNtedy line ofsaid Lot Line Rearrangement, a distance
of 28.31 feet;
Thence: N77 °53'05 "W. p"lel to the Northerly line of said Lot Lure Rearrangement, it
distance of 101.40 feet;
Thence S23 °3$'OT'W, a distance of 62.00 feet;
Thence S 12"06 "55 "W, parallel to the Westerly line of said Lot Line Rearrangement, a
distance of 110.41 Beet;
Thence 577"53'05" ", parallel to the Southerly line of said Lot Line RewTangement, a
distance of 90.79 feet, to a point on the Easterly line of said Let Zinc Rm mungemcnt;
Thence SIrO6'55 "W, along said Easterly line, a distance ctf28.00 feet, to a point at the
Southeasterly corner of said Lot Line Rearrangement;
Thence N77 °53'05 "W, along the Southerly line of said Lot Line Rearrrurge nenc, a
distance of 120.$ i feet, to a point at the SouthweAerly corner of said Lot Line
Rearrangement;
Thence N00 0 07'26 "E, along the Westerly line of said Lot Line Rearrangement. a distance
of 28.61 feet;
Thence S77 °53'05 "E, a distance of 11,43 feet;
Thence NOO °07'26 "W, parallel to said Westerly line, a distance of 124.72 feet;
Thence S89 °56'34" W. a distance of 11.12 feet, to a point on said Westerly line;
Thence N00 0 07'26 "E, along said Westerly line, a distance of24.00 feet, to a point at the
Northeasterly corner of said Lot 1, Block 1, Northridge No. 13;
Thence N89 1 56`36 "E.a distance of 19.82 feet;
Thence N 12 °07' 12 "E, a distance of49.74 feet, to a point on the Northerly I ine of Said Lot
Line Rearrangement;
Thence S77" 53'05 "F, along said Northerly line, a distance of 137.78 feet to Elie point of
beginning of This dewdptioa.
The above - mentioned descriptions also bring together with the following described
parc:et of land located within Lot 2, Block 1, Northridge No. 13 and the vacated Frontage
Road adjacent to said Lot 1;
Beginning at a point at the Southeast corner of Lot 2, Block 1, Northridge No. 13, as tiled
for record in Book 2456, at Page 26, August 4, 1989, Pueblo County Records;
Thence S00° 13'50 "E, a distance of 25.59 feet, to a point on the Southerly line of said
vacated [" rootage Road;
Thence N78 °14'35 "W, along the Southerly line of said vacated Frontage Road, a distance
of 69.97 feet, to a point on the Southerly prolongation of the Westerly i inc of said Lot 2;
Thence N00 °1 3'50"W, along Said Westerly line, a distance of 54.21 feet;
Thence S78° 14'35"E, parallel to the Southerly line of said Lot 2, a distance of 18.40 feel
Thence NOVI3'50''W, it distance of 107.53 feet, to a point on the Northerly line otsaid
Lot 2 t -
Thence N89 °54'25 "E, along said Northerly line, a distance of 50.35 feet to a point at the
Northeast corner of acid Lot 2;
Thence S00° 13'50"F, along the easterly line of said Tot 2, a distance of 24.00 feet;
Thence S89 °54'25"W, a. dintxnc.-e of 18.00 feet
Thence S00 °13'50"E, parallel to the Easterly line orsaid Lot 2, a distance c,f90.52 fret;
Thence S78" 14'35"E, a distance of 15.40 feet, to a point on the Easterly line of said T.ot
2;
Then* S00 °13'50 "F, along said Easterly line, a distance of 28.62 feet to the beginning
of [his description.
EXHIBIT C
(Reaffirmation)
w
ME
This instrument was prepared by and
when recorded, please return to:
Malkerson Gilliland Martin LLP
Suite 1500 AT &T Tower
901 Marquette Avenue
Minneapolis, MN 55402
612- 344 -1111
-0 '
This Affirmation of Reciprocal Easement Agreement ( " Affirmation ") is made as of this
day of by Reliance Development Company, L.L.P., a Minnesota
limited liability partnership ("Reliance") and by John Pagano, Robert J. Pagano, Kathleen M.
(Pagano) McCall, Julieann M. (Pagano) Fleckenstein and Jonna L. Pagano (collectively
"Pagans") for the purposes of affirming, and Reliance and Pagano by the execution and filing
of this Affirmation do so affirm, that certain Reciprocal Easement Agreement dated ,
1999, recorded , 1999, in Book at Page , records of Pueblo County,
Colorado, the filed original of which is attached hereto and incorporated herein (the "REA;" all
capitalized terms utilized herein shall have the meanings ascribed to them in the REA, unless
otherwise herein defined), and they do further acknowledge and affirm that:
Paganos are the lawful owner of a fee simple title interest in the real property described a
Parcel A on Exhibit A -1 to the REA and all actions necessary to transfer ownership of the
CDOT Parcel and that portion of Frontage Road, as vacated, to Parcel A have occurred;
Reliance is the lawful owner of a fee simple title interest in the real property described as
Parcel B on Exhibit A -1 to the REA, and all actions necessary to transfer ownership of
the Radius Property to the City of Pueblo (and the City has accepted such transfer) and
the ownership of Frontage Road, as vacated, to Parcel B have occurred;
1. Exhibit A -1 to the REA is affirmed and validated as the legal description of the Parcels;
and
1. Exhibit A to the REA and all references to the future transfer of the CDOT Property to
' 2. Paganos, the vacation of Frontage Road and the conveyance of the Radius
29414
2
Property to the City of Pueblo shall, from this date forward, be ignored.
1. This Affirmation may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this instrument was made and executed effective as of the
date first written above.
RELIANCE DEVELOPMENT COMPANY, L.L.P.
By HTW Investment Partners, Inc.
Its General Partner
Lo
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on the day of , , by
Richard J. Hauser, President of HTW Investment Partners, Inc., a Minnesota corporation, a
General Partner of Reliance Development Company, L.L.P., a Minnesota limited liability
partnership, on behalf of the partnership.
WITNESS my hand and official seal.
Notary Public
Robert J. Pagano
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this _ day of September, 1999, before me, the undersigned, a Notary Public in and
for said state, personally appeared Robert J. Pagano, and acknowledged to me that his execution
of this instrument is his free and voluntary act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
Kathleen M. (Pagano) McCall
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this day of September, 1999, before me, the undersigned, a Notary Public in and
for said state, personally appeared Kathleen M. (Pagano) McCall, and acknowledged to me that
her execution of this instrument is her free and voluntary act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
4
Julieann M. (Pagano) Fleckenstein
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this day of September, 1999, before me, the undersigned, a Notary Public in and
for said state, personally appeared Julieann M. (Pagano) Fleckenstein, and acknowledged to me
that her execution of this instrument is her free and voluntary act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
5
Jonna L. Pagano
STATE OF COLORADO)
) ss
COUNTY OF PUEBLO )
On this _ day of September, 1999, before me, the undersigned, a Notary Public in and
for said state, personally appeared Jonna L. Pagano, and acknowledged to me that her execution
of this instrument is her free and voluntary act and deed.
WITNESS my hand and official seal.
My commission expires
Notary Public
John Pagano
STATE OF COLORADO)
)SS.
COUNTY OF PUEBLO)
This instrument was acknowledged before on this day of , by
John Pagano, single.
Witness my official hand and seal.
Notary Public
EXHIBIT D
(City Deed)
DEED OF DEDICATION
Reliance Development Company, L.L.P., a Minnesota limited liability partnership
( "Reliance "), hereby donates and dedicates to the City of Pueblo, a Colorado municipal
corporation (the "City"), for the benefit of the public for perpetual use as a public street, the real
property legally described on Exhibit A attached hereto and made a part hereof (the "Right -of-
Way").
Reliance warrants unto the City that it has lawful authority to execute this Deed of
Dedication and good title to the Right -of -Way.
The City has accepted this Deed of Dedication by Resolution No. , adopted
by the City Council on September , 1999.
RELIANCE DEVELOPMENT COMPANY, L.L.P.,
a Minnesota limited liability partnership
By HTW INVESTMENTS PARTNERS, INC., a
Minnesota corporation
Its General Partner
By
Richard J. Hauser, President
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on , 1999, by Richard J. Hauser,
the President of HTW Investment Partners, Inc.., a Minnesota corporation, a General Partner of Reliance
Development Company, L.L.P., a Minnesota limited liability partnership, on behalf of the partnership.
Notary Public
EXHIBIT A
Right -of -Way
Exhibit "A"
A parcel of land located within the within Section 14, Township 20 South, Range 65 West, of the
6'' Principal Meridian, County of Pueblo, State of Colorado, being described as;
a portion of Lots 1, Block 5, Gateway Subdivision, First Filing, as recorded in Book 1991, at
Page 460; and a portion of the vacated Frontage Road adjacent to said Lot 1, Block 5, all of the
County of Pueblo records, and being more particularly described as follows:
Beginning at a point at the intersection of the Southerly line of the vacated Frontage Road and
the Southerly prolongation of the Easterly line of said Lot 1;
Thence N77 °53'05 "W, along said Southerly line a distance of 25.00 feet; Thence N44 °07'14 "E,
departing said Southerly line, a distance of 47.17 feet, to a point on the Easterly line of said Lot
1; Thence S12 °06'55 "W, along said Easterly line, a distance of 40.00 feet, to the point of
beginning of this description.
Said parcel contains 500.0 square feet, more or less.
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EXHIBIT E
(Easement)
EASEM1R AND RIGHT OF WAX
IMS EASEMENT, granted this day of , 1999, by Reliance Development
Company, L.L.P., a Minnesota limited liability partnership, Grantor, to City of Pueblo, a
Colorado municipal corporation, Grantee:
THAT IN CONSWERATTON of the sum of One Dollar ($1.00) and other good and
valuable consideration, paid by the Grantee, receipt of which is hereby acknowledged, Grantor
hereby grants to Grantee, its successors and assigns, an easement and right of way for the purpose
of a sidewalk, in, through, over, under and across Grantor's property situated in Pueblo County,
Colorado, described as (the "Property").
The Easterly 2.00 feet of Lots 1 & 10, Block 5, Gateway Subdivision, Pirst Filing, as
recorded in Book 1991 at Page 460 of the County of Pueblo Records, except that portion
deeded to the City of Pueblo in Deed of Dedication recorded under Reception No.
of the County of Pueblo Records and accepted by Grantee in
Resolution No.
Grantee shall construct or reconstruct the sidewalk in the Property or the existing
Sidewalk adjacent thereto (the " Facilities ") as may be required by and in accordance with plans
and specifications therefor approved by, and on file with Grantee, and, thereafter, Grantor shall
maintain the Facilities in good working order, condition and repair and shall replace the
Facilities.
Grantee shall have the right at its option. (but not the obligation) to inspect, control,
maintain, repair and replace the Facilities and recover all costs and expenses thereof plus an
administrative charge of 15% from the Grantor in the event Grant, after receipt of notice from �
Ch=t% does not repair, maintain or repair the Facilities within a reasonable time after receipt of
such notice. For such purposes, Grantee is granted the right to enter upon the Property and
adjoining property of Grantor. Failure of Grantee to inspect, control, maintain, repair or replace
the Facilities shall not subject the Grantee to any liability for such failure.
Grantor reserves the right to use and occupy the Property for any purpose not inconsistent
with the privilege above granted and which will not interfere with or endanger any equipment or
facilities therein or use thereof. Such reservation by the Grantor shall in no event include the
right to locate or erect or cause to be located or erected on the Property any building or any other
�.;; rstructure.
Grantor warrants to Grantee that Grantor (a) has good and sufficient right and title in and
to the Property and full power to grant this easement and right of way, and (b) will defend
Grantee's quiet and peaceful possession of the Property and easement and right of way against all
persons who may lawfully claim title to the Property.
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This Easement and Right Of Way shall be binding upon, and shall inure to the benefit of
the heirs, personal representatives, successors and assigns of the Grantor and Grantee.
SIGNED this day of , 1999
C'7WEGIA
Reliance Development Company, L.L.P. a
Minnesota limited liability partnership
By HTW Investment Partners, Inc. a
Minnesota corporation and its general
partner
By
Richard Y. Hauser, its President
STATE OF MNNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
. 1999 by Richard 1. Hauser, President of IHTW Investment Partners, Inc. a
Minnesota corporation and the general partner of Reliance Development Company, L.L.P., a
Minnesota limited liability partnership.
Witness my band and official seal.
My commission expires:
Notary Public
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