Attachment B - Utility Easement with Exhibits

GRANT OF PERPETUAL NON-EXCLUSIVE EASEMENT The CITY OF BOULDER, a Colorado home rule city (“City” or “Grantor”), whose address is 1777 Broadway, Boulder, Colorado 80302, for $1 (One and no/100 Dollars) and other good and valuable consideration, does hereby grant, bargain, sell and convey to 2555 30th STREET LLC, a Colorado limited liability company, who address is 1712 Pearl Street, Boulder, Colorado 80302 (“Grantee”), a perpetual non-exclusive easement for the purposes of constructing, operating, and maintaining a private sewer line (“Easement”) in, on, over, under, and across property owned by City as described in Exhibit A, attached hereto and incorporated herein by reference (“Property”), under the following terms and conditions: 1. Under this Easement, the Grantee and Grantee’s agents, contractors, members, managers, employees, and designees shall have the following rights: a. The right to access, install, construct, reconstruct, enlarge, use, operate, maintain, repair, replace, inspect, survey, and test the private sewer line serving 2555 30th Street, including all conduits, vaults, manholes, and other appurtenances (collectively, the “Sewer Improvements”), in, on, over, under, and across the area described and depicted in Exhibit B, attached hereto and incorporated herein by reference (“Easement Area”). This right is granted together with all rights and privileges necessary or incidental to the reasonable and proper use of the Easement Area within the Property. b. Grantee shall access the Easement Area solely from the following two access locations: 1) from the north through Grantee’s property located at 2555 30th Street, and 2) through the right of way along the multi-use path on the Property, subject to any permitting required by City code for work and equipment on the path. Grantee shall not access the Easement Area from any other location. 2. City retains the right to use and occupy the Easement Area for all lawful purposes which do not impair or interfere with the Grantee’s rights and privileges under this Easement. 3. Grantee shall be solely responsible for obtaining all necessary permits, licenses, and approvals required by the City for any work performed within the Easement Area and shall bear all costs and expenses associated with the design, installation, maintenance, and operation of the Sewer Improvements. Grantee shall also be responsible for the cost to repair or replace any property, utilities, or facilities owned by the City, whether within or outside the Easement Area, that are damaged or destroyed as a result of Grantee's exercise of its rights hereunder. 4. Grantee shall restore the surface of any ground it may disturb in the course of exercising any of its rights under this Easement, including initial construction of the Sewer Improvements, to substantially the same condition that existed prior to such use by the Grantee, including, without limitation, the replacement of all asphalt, curb, gutter, sidewalks, landscaping, and other improvements to a condition and quality approved by the City. 5. Grantee agrees that it will cause any contractors performing any work on the Property to procure and maintain in force, at its or their own cost, the insurance coverages and other requirements set forth in Exhibit C. 6. Grantee shall indemnify, defend, and hold harmless the City, its officers, agents, and employees, from and against any and all claims, demands, losses, damages, liabilities, causes of action, or expenses (including reasonable attorneys' fees) arising out of or resulting from the exercise of the 4921-9247-6035, v. 1

Easement rights by Grantee, or the construction, operation, maintenance, repair, or removal of the Sewer Improvements, except to the extent caused by the negligence or willful misconduct of the City. 7. City reserves the right, after providing Grantee with written notice and a ninety (90) day opportunity to cure, to terminate and extinguish this Easement if Grantee fails to comply with any material term, condition, or covenant of this Easement, or if the Easement ceases to be used for the utility purposes described herein for a continuous period of three (3) years. Upon such termination, all rights of the Grantee hereunder shall cease and revert to the City, and Grantee shall execute and record an instrument confirming such termination. 8. All notices, consents or other instruments or communications provided for herein shall be in writing, signed by or on behalf of the party giving the same, and shall be deemed properly given and received: (a) when actually delivered and received, if personally delivered; (b) ten (10) days after mailed, if sent by registered or certified mail, postage prepaid, return receipt requested; or (c) one (1) business day after being sent by overnight delivery service. The addresses of the parties for the purposes of this section shall be as follows: Grantor: City of Boulder Attn.: Utilities Engineering Manager 1739 Broadway Boulder, CO 80302 Grantee: 2555 30th Street LLC Attn.: Scott Holton P.O. Box 17367 Boulder, Colorado 80308 9. The parties hereto agree that neither has made or authorized any agreement with respect to the subject matter of this instrument other than expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party, or its agents or employees, hereto. 10. The terms of this Easement shall run with the land and shall be binding upon Grantor and its heirs, agents, lessees and assigns, and all other successors to it in interest, and shall continue as a servitude running in perpetuity with the Property. 11. Grantor warrants that Grantor has full right and lawful authority to convey the real property interests granted herein. 12. This Easement shall be recorded, at Grantee’s sole cost, in the office of the Boulder County Clerk and Recorder’s Office. [SIGNATURE PAGE/S FOLLOW]

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IN WITNESS WHEREOF, City has caused this instrument to be duly executed as of this day of

20___.

GRANTOR/CITY: City of Boulder a Colorado home rule city By: Nuria Rivera-Vandermyde, City Manager ATTEST: ______________________________ City Clerk APPROVED AS TO FORM: ______________________________ Attorney’s Office

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Date:

_________________________

City

Accepted by: 2555 30th STREET, LLC By: 2555 Manager LLC, a Colorado limited liability company By: Name Its: Manager STATE OF COLORADO

) ) ss. COUNTY OF ______________) The foregoing instrument was acknowledged before me this _____ day of ____________ 20__, by _______ as Manager of 2555 Manager, LLC, a Colorado limited liability company, on behalf of the company. Witness my hand and official seal. My Commission Expires: ________________ (SEAL) ______________________________ Notary Public

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EXHIBIT A LEGAL DESCRIPTION OF PROPERTY

(Per Reception No. 01871563) Parcel 2 All that portion of Section 29, Township 1 North, Range 70 West of the 6th P.M., County of Boulder, State of Colorado, described as follows: Commencing at the Southwest corner of the Northeast quarter of the Northwest quarter of Section 29, Township 1 North, Range 70 West of the 6th P.M.; thence west 147.81 feet; thence North 30.00 feet parallel with the east line of the Northeast quarter of the Northwest quarter of said Section 29 to the Northeast corner of Parcel A conveyed to the City of Boulder by deed recorded July 9, 1962 in Book 1236 at Page 581 of the Boulder County, Colorado records; and the True Point of Beginning; thence West 340.15 feet along the North line of said Parcel A; thence North 280.00 feet parallel with the East line of the Northeast quarter of the Northwest quarter of said Section 29 to a point on the North line of that tract of land conveyed to DeWayne A. Southard and Diane L. Southard by deed recorded March 24, 1975 on Film 882 as Reception No. 132701 of the Boulder County, Colorado records; thence East 340.15 feet along the North line of said tract described as Reception NO. 132701 to the Northeast corner of said tract; thence south 280.00 feet along the Easterly line of said tract described as Reception No. 132701 to the True Point of Beginning, County of Boulder, State of Colorado.

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EXHIBIT B

UTILITY EASEMENT

The

Sanitas Group 901 FRONT STREET, SUITE 350 LOUISVILLE, CO 80027 303.481.2710

EXHIBIT B

UTILITY EASEMENT

The

Sanitas Group 901 FRONT STREET, SUITE 350 LOUISVILLE, CO 80027 303.481.2710

EXHIBIT C INSURANCE REQUIREMENTS

1.

Insurance. a. Minimum Coverages. Contractor shall procure and maintain in force during the term of this Agreement and for the statute of repose, at its own cost, the following minimum coverages: i.

Workers’ Compensation and Employers’ Liability: a) State of Colorado: Statutory

ii.

Employer’s Liability: a) $1,000,000 bodily injury for each accident b) $1,000,000 each employee for disease c) $1,000,000 disease aggregate

iii.

General Liability: a) General Aggregate Limit: b) Per Occurrence:

$2,000,000 $1,000,000

Coverage provided should be at least as broad as found in Insurance Services Office (ISO) Form CG0001 to include all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. iv.

Automobile Liability Limits - ISO form CA0001 (BAP) or equivalent including coverage for owned, non-owned and hired autos. 1 a) Bodily Injury & Property Damage: Combined Single Limit:

$1,000,000

1

Applicable only if Contractor, its agents, employees, or representatives will be using motor vehicles in Colorado while performing the services.

2

The City may require that this coverage remain in place for one year after the service is complete.

v.

Professional Liability (errors and omissions)2: a) Each Claim/Loss: $1,000,000 b) Aggregate: $2,000,000 This paragraph is applicable to Contractor and any Subcontractors of any tier that is providing any professional services, including but not limited to: design, architecture, engineering, testing, surveying, or design/build services, temporary engineering, engineered excavations and shoring systems, posttension supply, structured steel, specialized millwork that is performance specified, roofing or waterproofing systems, curtainwall, mechanical, fire protection systems, electrical, fire alarm systems. Contractor and all Subcontractors providing professional services shall provide and maintain Professional Liability Insurance coverage. The policy coverage shall be effective (retroactively, if applicable) from the date of commencement of all professional activities in connection with the Scope of Work. Coverage shall include coverage for contractual liability. The Contractors and Subcontractors shall maintain for the statute of repose, following completion of the project. Any erosion of insurance limits required will be reinstated to the required amounts prior to commencing the contracted work and if during the contracted period claims are made against the professional’s policy the necessary reduction of available limits will be repurchased to the contractually required amounts.

b.

Additional Insurance Requirements.

i.

All insurers must be licensed or approved to do business within the State of Colorado, and unless otherwise specified, all policies must be written on a per occurrence basis (excepting Professional Liability).

ii.

Higher limits or lower limits may be required or accepted by the City. The City reserves the right to require an Excess/Umbrella Liability policy. If an Excess/Umbrella Liability policy is required, all coverages and terms required under the Commercial General Liability, Automobile Liability and Employer’s Liability must be included. Contractor’s Excess/Umbrella Liability Policy shall provide liability coverage, subject to the terms and conditions of the policy, in excess of all available underlying coverage before any primary or excess coverage held by an additional insured.

iii.

Where commercially available, Contractor shall name “the City of Boulder, its elected and appointed officials, directors, officers, employees, agents and volunteers” as additional insureds as their interest may appear (except for Workers’ Compensation and Professional Liability). Additional insured endorsement should be at least as broad as ISO form CG2010 for General Liability coverage and similar forms for auto liability.

iv.

A Certificate of Insurance evidencing the coverages described here, shall be submitted prior to commencing services on ACORD Form 25-S. The Certificate Holder shall be identified as: City of Boulder, P.O. Box 791, Boulder, CO 80306.

v.

All policies of insurance shall be written on a primary basis, non-contributory with any other insurance coverages and/or self-insurance carried by the City.

vi.

A Separation of Insureds Clause must be included in general liability policies.

vii. Contractor shall advise the City in the event any general aggregate or other aggregate limits are reduced below the required per occurrence limit. At its own expense, Contractor will reinstate the aggregate limits to comply with the minimum requirements and shall furnish to the City a new certificate of insurance showing such coverage is in force. viii. Contractor’s insurance carrier shall possess a minimum A.M. Best’s Insurance Guide rating of A- VI. ix.

Contractor, or Contractor’s insurance broker, shall notify the City of any cancellation or reduction in coverage or limits of any insurance within seven (7) days of receipt of insurer’s notification to that effect. Contractor shall forthwith obtain and submit proof of substitute insurance in the event of expiration or cancellation of coverage.

x.

Contractor is responsible for any damage or loss to its own vehicles or equipment.

xi.

The City and Contractor shall cooperate with each other in the collection of any insurance proceeds that may be payable in the event of any loss, including the execution and delivery of any proof of loss or other actions required to effect recovery.

xii. Contractor and its insurers shall waive subrogation in favor of Additional Insured parties (except for Workers’ Compensation and Professional Liability). xiii. Contractor shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to this Agreement by reason of its failure to procure or maintain insurance in sufficient amounts, durations or types.