Loading...
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 "). 2 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/ c�Q 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 / N My commission expires: <O� �,i - f�� Z- Ezi 0. �h :0 �� a n •. <' Y O�oRADO..•_� 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 -aw 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 9MOrmsbnrrea.doc 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 glormMonrrea.doc 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. :Qp -17 -99 02 I � / v] o ! o � O I � ! C % m � '........ rq I t ?, � I "r �_ 1 1 • x._ l - "- .. _ AU t , t l�l l�l l�l 191 I P_03 pli 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. 29479KMM n to 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 29479KMM