AGREEMENT FOR CONVEYANCE OF EASEMENT
THIS AGREEMENT FOR CONVEYANCE OF EASEMENT ("Agreement") is entered into as
of September 29, 2000 ("Effective Date") between Bishop Powers, Ltd., a Colorado
limited partnership ("Seller"), and the City of Colorado Springs, a Home Rule
City and Municipal Corporation on behalf of its enterprise, Colorado Springs
Utilities (collectively, the "City"), upon the basis of the following facts:
RECITALS
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Seller is owner of the real property located in Colorado Springs, El Paso
County, Colorado, and legally described on Exhibit A attached hereto and
incorporated herein by reference ("Seller's Property"). As reflected on Exhibit
A, Seller's Property is divided into a "North Tract" and a "South Tract". The
City has an existing sewer line through Seller's Property located in an easement
(the "Old Easement"), the legal description of which is set forth on Exhibit B
attached hereto and incorporated herein by reference.
The City has determined that it requires an additional easement through
Seller's Property for the purpose of constructing a portion of the Sand Creek
Sewer Line Project. The City has commenced an acquisition procedure for the
easement required for the new sewer line. The parties have reached a negotiated
settlement with respect to the easement, all as set forth in this agreement.
Subject to the terms of this Agreement, Seller has agreed to grant and
convey the Easements (as hereinafter described), to the City.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which the parties hereby acknowledge, the parties hereby agree as follows:
SECTION 1. SALE OF EASEMENT. Subject to the terms and conditions provided
in this Agreement, Seller agrees to sell and the City agrees to purchase a
permanent and construction easement in two phases, as follows:
1.1 Phase One. The "Permanent Easement" and the "Construction Easement"
(together, the "Phase 1 Easements") described in the "Easement Agreement No. 1"
attached hereto as Exhibit C and incorporated herein.
1.2 Phase Two. The "Permanent Easement" and the "Construction Easement"
(together, the "Phase 2 Easements") described in the "Easement Agreement No. 2"
attached hereto as Exhibit D and incorporated herein.
SECTION 2. PURCHASE PRICE. The total purchase price to be paid by the City
to Seller for the Phase 1 and Phase 2 Easements (together, the "New Easements")
is $125,533.00 (the "Purchase Price"). The purchase price for the Phase 1
Easements shall be $8,332.50, and the purchase price for the Phase 2 Easements
is $117,200.50. The Purchase Price will be paid by the City at Closing of the
respective Phase (as hereinafter defined), in immediately available good funds.
SECTION 3. TITLE MATTERS.
3.1 Permitted Exceptions. Seller shall transfer and convey the New
Easements free and clear of liens and encumbrances, except for taxes for the
year of closing and current installments for special assessments. The City has
examined the Title Documents hereinafter described and satisfied itself with
respect to the status of title to the New Easements.
3.2 Title Documents. The City has obtained, at the City's expense, the
following title evidence covering the New Easements (collectively, the "Title
Documents"):
(a) Title Commitment. A title insurance commitment (the "Title
Commitment") issued by the Security Title Guaranty Co. (the "Title Company") as
Commitment No. EO53208A99-4, showing the status of record title to the New
Easements, together with copies of all recorded documents referred to in the
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Title Commitment. The City may, at its expense, cause the owner's policy of
title insurance to be issued to the City pursuant to the Title Commitment.
(b) Tax Certificate. A certificate of taxes due covering the New
Easements prepared by the Treasurer of El Paso County, Colorado.
(c) Survey. A survey (the "Survey") of the Old Easement and the New
Easements, prepared by The Sear-Brown Group, a licensed Colorado surveyor (the
"Surveyor"). The Surveyor has prepared the legal description of the New
Easements, as set forth in the Easement Agreements.
SECTION 4. INSPECTION OF PROPERTY.
4.1 Inspection . Prior to the Effective Date, the City has had the
opportunity to inspect Seller's Property and the New Easements.
SECTION 5. PAYMENT OF BALANCE OF APPRAISAL FEES. The City agrees to pay
Seller, at the Phase 1 Closing, $793.50 as the pro-rata share of the remaining
balance of the fees of Seller's appraiser.
SECTION 6. CONDITION OF PROPERTY; DISCLAIMER OF WARRANTIES.
6.1 As Is. Except as specifically set forth in this Agreement:
(a) The City acknowledges and agrees that Seller has not made, does not
make and specifically negates and disclaims any representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, of, as to, concerning or with respect to (i) the value, nature, quality
or condition of the New Easements, including, without limitation, the water,
soil and geology; (ii) the income to be derived from the New Easements; (iii)
the suitability of the New Easements for any and all activities and uses which
the City may conduct thereon; or, (iv) the habitability, merchantability,
marketability, profitability or fitness for a particular purpose of the New
Easements; and Seller specifically disclaims any representations regarding
compliance with any environmental protection, pollution or land use laws, rules,
regulations, orders or requirements, including solid waste, as defined by the
U.S. Environmental Protection Agency regulations at 40 C.F.R., Part 261, or the
disposal or existence, in or on the New Easements, of asbestos or any hazardous
substance, as defined by the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended, and regulations promulgated thereunder.
(b) The City further acknowledges and agrees that having been given the
opportunity to inspect the New Easements, the City is relying solely on its own
investigation of the Easements and not on any information provided or to be
provided by Seller other than information referred to in this Agreement.
(c) The City further acknowledges and agrees that to the maximum extent
permitted by law, the conveyance of the New Easements as provided for herein is
made on an "AS IS" condition and basis with all faults.
It is understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that the New Easements are sold by Seller and purchased
by the City subject to the foregoing.
SECTION 7. DONATION OF LAND FOR PARK. Seller has proposed that it donate to
the City the portion of the North Tract that is described in Exhibit E attached
hereto and incorporated by reference (the "Park Parcel"). As of the Effective
Date, the parties are in negotiations with respect to the conditions pursuant to
which the Seller will donate and the City will accept for City park purposes,
the Park Parcel. The parties shall cooperate with one another in a reasonable
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manner to the end that the donation of the Park Parcel is made to the City at
the Phase 2 Closing, provided, however, that the grant of the New Easements
pursuant to this Agreement shall not be conditioned on the City's acceptance of
the donation of the Park Parcel. Each party shall cooperate in good faith with
the other with respect to the matters described in this Section 7.
SECTION 8. CLOSING.
8.1 Closing Date. The closing ("Closing") of the purchase and sale of the
New Easements shall occur at separate times for the Phase 1 and Phase 2
Easements as follows:
(a) Phase 1 Closing. The Closing on the purchase and sale of the Phase
1 Easements (the "Phase 1 Closing") shall occur on September 29, 2000, at a
place and time to be mutually agreed upon by the parties.
(b) Phase 2 Closing. The Closing on the purchase and sale of the Phase
2 Easements (the "Phase 2 Closing") shall occur on a date and at a time and
place mutually agreeable to the parties, but in any case, no later than January
31, 2001.
8.2 The City's Obligations at Closing. In addition to delivery of the
portion of the Purchase Price for the Phase being purchased, as described in
Section 2.2., the City shall execute and deliver the following to Seller at each
Closing:
(a) The Easement Agreement for the Phase being purchased.
(b) A statement which reflects the settlements and prorations provided
for in Section 9.
(c) Such other documents that may be necessary to carry out the
purposes of this Agreement.
8.3 Seller's Obligations at Closing. Seller shall execute and deliver the
following to the City at Closing:
(a) The Easement Agreement for the Phase being sold.
(b) A statement which reflects the settlements and prorations provided
for in Section 9.
(c) Such other documents that may be necessary to carry out the
purposes of this Agreement.
SECTION 9. SETTLEMENT AND PRORATIONS. The following items shall be prorated
or settled between Purchaser and Seller at Closing:
9.1 Taxes and Assessments. Real property taxes and assessments for the
Seller's Property for the
year of Closing and subsequent years shall be paid by Seller.
9.2 Miscellaneous Closing Costs. The City shall pay the costs associated
with providing the City with the title insurance policy described in Section
3.2. All real estate recording and documentary fees payable in connection with
the purchase and sale of the New Easements shall be paid by the City. Any fee
for closing services which is charged by the Title Company shall be paid by the
City. Except as otherwise expressly provided in this Agreement, the City and
Seller shall pay their own fees and expenses incurred in the preparation,
execution and performance of their respective obligations under this Agreement.
SECTION 10. INSTALLATION OF DRAINAGE IMPROVEMENTS. The parties have each
had the opportunity to review the "Master Development Drainage Plan for
Creekside Center and Future Apartment Complex" dated July, 2000, Revised August,
2000, Revised September, 2000, Project No. 00019, prepared by Obering Wurth &
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Associates (the "Drainage Plan"). The parties agree that Seller shall be
responsible for constructing and paying for any required improvements to the
East side of the Sand Creek Drainage Channel that are described in the Drainage
Report, and that the City shall be responsible for constructing and paying for
any required improvements to the West side of the Sand Creek Drainage Channel.
The timing of the City's installation of the required improvements to the West
side of the Sand Creek Drainage Channel shall be as set forth in the September
12, 2000, letter from Richard Dressel to David Lethbridge, a copy of which is
attached hereto as Exhibit F.
SECTION 11. DEFAULT AND REMEDIES. In the event of default by any of the
parties to this Agreement, Seller and the City agree as follows:
11.1 Default by the City. If City shall default in the performance of its
obligations hereunder, Seller shall have the right to enforce this Agreement
through an action for specific performance or damages, or both.
11.2 Default by Seller. If Seller shall default in the performance of its
obligations hereunder, the City shall have the right to enforce this Agreement
through an action for specific performance or damages, or both.
SECTION 12. BROKERS. Seller represents and warrants to the City that,
no broker or finder has been engaged by Seller in connection with any of the
transactions contemplated by this Agreement. Seller further represents and
warrants that no person or entity, now claims or will claim any commission,
finder's fee or other amounts by, through, under or as a result of any
relationship with Seller because of such transactions. The City represents and
warrants to Seller that no broker or finder has been engaged by either of them
in connection with any of the transactions contemplated by this Agreement. The
City further represents that no person or entity claims or will claim any
commission, finder's fee or other amounts by, through, under or as a result of
any relationship with either of them because of such transactions.
SECTION 13. MISCELLANEOUS.
13.1 Notices. All notices required or permitted under this Agreement shall
be given by nationally recognized overnight courier, for "next day" delivery,
with all delivery costs paid, or by hand delivery, directed as follows:
If intended for Seller, to:
Bishop Powers, Ltd.
716 College View Drive
Riverton, WY 82501
Attn: Robert E. Thrailkill
If intended for the City, to:
Director, Water Resources Department
Colorado Springs Utilities
30 South Nevada, Suite 603
Colorado Springs, CO 80903
with a copy to:
Colorado Springs Utilities
General Counsel's Office
30 South Nevada, Suite 603
Colorado Springs, CO 80903
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with a copy in each case to:
Flynn McKenna Wright & Karsh, llc
Plaza of the Rockies, Suite 202
111 South Tejon
Colorado Springs, Co 80903
Attn: R. Tim McKenna
Any notice delivered by overnight carrier in accordance with this paragraph
shall be deemed to have been duly given when delivered. Any notice which is hand
delivered shall be effective upon receipt by the party to whom it is addressed.
Either party, by notice given as above, may change the address to which future
notices should be sent.
13.2 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, personal representatives, successors and permitted assigns.
13.3 Entire Agreement. This Agreement, together with the exhibits attached
hereto, constitutes the entire agreement between Seller and Purchaser, and may
not be modified in any manner except by an instrument in writing signed by both
parties.
13.4 Headings. The section and subsection headings contained in this
Agreement are inserted only for convenient reference and do not define, limit or
proscribe the scope of this Agreement or any exhibit attached hereto.
13.5 Counterparts. This Agreement may be executed in any number of
counterparts which together shall constitute one and the same instrument.
13.6 Unenforceable Provisions. If any provision of this Agreement, or the
application thereof to any person or situation shall be held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to persons or situations other than those to which it shall have been
held invalid or unenforceable, shall continue to be valid and enforceable to the
fullest extent permitted by law.
13.7 Time of the Essence. Time is strictly of the essence with respect to
each and every term, condition, obligation and provision of this Agreement, and
the failure to timely perform any of the terms, conditions, obligations or
provisions hereunder by either party shall constitute a breach of and a default
under this Agreement by the party so failing to perform. In calculating any
period of time provided for in this Agreement, the number of days allowed shall
refer to calendar and not business days. If any day scheduled for performance of
any obligation hereunder shall occur on a weekend or holiday, the time period
allowed and day for performance shall be continued to the next business day.
13.8 Waivers. No waiver by either party of any provision hereof shall be
effective unless in writing or shall be deemed to be a waiver of any other
provision hereof or of any subsequent breach by either party of the same or any
other provision.
13.9 Governing Law; Construction of Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado.
Seller and Purchaser and their respective counsel have reviewed, revised and
approved this Agreement.
13.10 Recording. This Agreement shall not be recorded by either party
hereto. A Memorandum of Agreement, in a form identical to the one attached
hereto as Exhibit G, shall be recorded in the records of the Clerk and Recorder
of El Paso County, Colorado. City agrees to execute and deliver to Seller a
Release of Memorandum which shall be held in an escrow at Security Title
Guaranty Co., until the earlier to occur of the following events: (i) such time
as the Phase 2 Closing contemplated by the Agreement occurs, in which event the
Release of Memorandum shall be returned to the City at the Phase 2 Closing; or,
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(ii) this Agreement terminates prior to the Phase 2 Closing, or the City fails
to close at the Phase 2 Closing pursuant to the Agreement, in which events the
Release of Memorandum shall be delivered to Seller and Seller may thereafter
record the Release of Memorandum in the records of the Clerk and Recorder of El
Paso County, Colorado.
13.11 Old Easement. The City agrees that Seller shall have the right to
make full use of the property (the "Old Easement Property") that is subject to
the Old Easements, including, without limitation, the right, in, across and
longitudinally along the Old Easement Property, to lay, construct, maintain,
operate, alter, repair, patrol, remove, change the size of and replace, at any
time or from time to time, (a) one or more additional public or private
utilities improvements and appurtenances thereto; (b) private or public
roadways, streets, walking or bicycle pathways, and motor vehicle parking, and
(c) landscaping improvements. Seller shall not perform or permit by other
persons or entities construction of the work within the Old Easement Property
without thirty (30) days prior written notice to the City. At Seller's request,
the City shall execute and deliver to Seller a document in recordable form
confirming the foregoing rights with respect to the Old Easement Property.
13.12 Survival of Provisions. To the extent applicable, all of the
representations, covenants,
[the remainder of this page intentionally left blank]
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indemnifications and agreements contained in this Agreement, shall survive
Closing.
13.13 Telecopy Signatures. A signature of a party on this Agreement
provided by telecopy shall have the same effect as an original signature.
This Agreement for Conveyance of Easement has been executed as of the date first
written above.
SELLER:
Bishop Powers, Ltd.,a Colorado limited partnership
By: Bishop Capital Corporation, a Wyoming
corporation, its General Partner
By: /s/ Robert E. Thrailkill
-------------------------------------
Robert E. Thrailkill
President
CITY:
City of Colorado Springs, on behalf of its
enterprise, Colorado Springs Utilities
By: /s/ Gary M. Bostrom
-------------------------------------
Gary M. Bostrom
ISD Manager
APPROVED AS TO FORM:
By: /s/ Jane Fredman
-------------------------------
Jane Fredman
UTILITIES GENERAL COUNSEL
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EXHIBIT A
to
Agreement for Conveyance of Easement
Legal Description of Seller's Property
North Tract:
South Tract:
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EXHIBIT B
to
Agreement for Conveyance of Easement
Legal Description Old Easement
North Tract:
Those easements recorded in Book 3196 at Page 719 (A portion
quitclaimed in Book 3242 at Page 972), Book 5356 at Page 5, and in
Book 5039 at Page 451, all in the records of the Clerk and Recorder of
El Paso County, Colorado.
South Tract:
The easement recorded in Book 3196 at Page 719 in the records of the
Clerk and Recorder of El Paso County, Colorado.
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EXHIBIT C
to
Agreement for Conveyance of Easement
Easement Agreement No. 1
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EXHIBIT D
to
Agreement for Conveyance of Easement
Easement Agreement No. 2
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EXHIBIT E
to
Agreement for Conveyance of Easement
Park Parcel
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EXHIBIT F
to
Agreement for Conveyance of Easement
Letter from Dressel to Lethbridge
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EXHIBIT G
to
Agreement for Conveyance of Easement
MEMORANDUM OF AGREEMENT
This Memorandum of Agreement is entered into as of September 29, 2000, by
and between Bishop Powers, Ltd., a Colorado limited partnership ("Seller"), the
City of Colorado Springs, a Home Rule City and Municipal Corporation on behalf
of its enterprise, Colorado Springs Utilities (collectively, the "City").
Seller and the City entered into an "Agreement for Conveyance of Easement" (the
"Agreement") dated September 29, 2000. The Agreement sets forth the terms and
conditions upon which the Seller has agreed to grant to the City construction
and permanent easements for certain utility purposes with respect to the
property described on Exhibit 1 attached hereto (the "Property"). The purchase
price for the easements is $117,200.50. This Memorandum is being recorded in the
real property records of El Paso County, Colorado to provide record notice to
all parties of the existence of the Agreement and its affect with respect to the
Property. The Agreement should be considered to be in full force and effect
unless a release of memorandum, referring to this Memorandum and signed by the
City and the Seller, is recorded in the real property records of El Paso County,
Colorado. Notwithstanding the above, the closing for the conveyance by the
Seller to the City of the easements on the Property is to take place, by the
terms of the Agreement, no later than January 31, 2001.
SELLER:
Bishop Powers, Ltd.,a Colorado limited
partnership
By: Bishop Capital Corporation, a Wyoming
corporation, its General Partner
By: /s/ Robert E. Thrailkill
----------------------------------------
Robert E. Thrailkill
President
CITY:
City of Colorado Springs, on behalf of its
enterprise, Colorado Springs Utilities
By: /s/ Gary Bostrom
----------------------------------------
Gary Bostrom
ISD Manager
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STATE OF WYOMING )
) ss.
COUNTY OF FREMONT )
The foregoing instrument was acknowledged before me this 29 day of
September, 2000, by Robert E. Thrailkill, who is the President of Bishop Capital
Corporation, a Wyoming corporation, the General Partner of Bishop Powers, Ltd.,
a Colorado limited partnership.
Witness my hand and official seal.
My commission expires: 03-02-03.
By: /s/ Sherry L. Moore
---------------------------
Sherry L. Moore
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF EL PASO )
The foregoing instrument was acknowledged before me this 29 day of
September, 2000, by Gary M. Bostrom as ISD Manager of the City of Colorado
Springs, on behalf of its enterprise, Colorado Springs Utilities.
Witness my hand and official seal.
My commission expires: 5-22-2004.
By: /s/ Linda Collum
---------------------------
Linda Collum
Notary Public
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Exhibit 1
Legal Description of Property
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