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HomeMy WebLinkAbout1.18 Road Maintenance AgreementROAD MAINTENANCE AGREEMENT THISAGREEMEIVT entered into this � tk day of June, 1996, by and between HARMONY VIEW HOMEOWNERS ASSOCIATION; PINION GROVE HOMEOWNERS ASSOCIATION; JOSEPH'S MEADOWS HOMEOWNERS ASSOCIATION; and LEVITT SUBDIVISION HOMEOWNERS ASSOCIATION. RECITALS 1. Harmony View Subdivision is a subdivision located primarily in Eagle County and partially in Garfield County, Colorado, consisting of seven (7) lots, six (6) of which utilize a road known as Harmony Lane for access. The owners of each of the six lots within Harmony View Subdivision that utilize Harmony Lane as access are members of the Harmony View Homeowners Association. 2. Pinion Grove Exemption is a subdivision located in Garfield County, Colorado, consisting of four (4) lots. The owners of the 4, lots within Pinion Grove Exemption constitute the members of the Pinion Grove Homeowners Association. 3. Joseph's Meadows Subdivision is a subdivision exemption located in Garfield County, Colorado, consisting of three (3) lots. The owners of the 3 lots within Joseph's Meadows Subdivision exemption constitute the members of the Joseph's Meadows Homeowners Association. 4. Levitt Subdivision is a proposed subdivision located in Garfield County, Colorado, Subdivision, proposed to consist of thirteen (13) lots. The owners of the 13 lots within Levitt Subdivision will constitute the members of the Levitt Subdivision Homeowners Association. 5. The owners of the twenty six (26) lots referenced in paragraphs 1 through 4, inclusive, above, each use portions of Harmony Lane for access to their respective properties, all as more fully set forth hereinbelow. 6. The parties hereto have reached the following agreement with respect to sharing the costs of the future repair and maintenance of Harmony Lane and wish to memorialize said agreement in writing. NOW, THEREFORE, in consideration of the keeping and performance of the mutual promises and covenants set forth herein, the parties hereto agree as follows: 1. Harmony. Harmony Lane is hereby defined as that certain existing roadway located just westerly of the Eagle County/Garfield County line, from its intersection with Fender Lane (County Road 102) southerly to its intersection with Wind River Road. For purposes of this Agreement, Harmony Lane shall be further divided into three sections, defined as follows: a. North Section shall mean that portion of Harmony Lane of approximately y�j ( feet in length from the intersection of Harmony Lane and Fender Lane to the intersection of Harmony Lane and the northerly entrance into Harmony View Subdivision; b. Center Section shall mean that section of Harmony Lane of approximately 5712. feet in length from the intersection of Harmony Lane and the northerly entrance into Harmony View Subdivision to the intersection of Harmony Lane and the southerly entrance into Harmony View Subdivision, which is the same point as the entrance into Joseph's Meadows Subdivision; c. South Section shall mean the section of Harmony Lane of approximately feet in length from the intersection of Harmony Lane and the southerly entrance into Harmony View Subdivision and Joseph's Meadows Subdivision to the intersection of Harmony Lane and Wind River Road. 2. Use of Harmonv Lane and Sharing of Repair and Maintenance Costs. The parties wish to share the ongoing and future repair and maintenance costs of Harmony Lane on a prorata basis, determined according to the number of users of each section of Harmony Lane. The parties therefore agree that the sections of Harmony Lane are used as stated below, and that costs of repair and maintenance of each section of Harmony Lane shall be shared as follows: a. North Section is used by 26 lots, consisting of 6 lots in Harmony View Subdivision, 31ots in Joseph's Meadows Subdivision, 4 lots in Pinion Grove Exemption, and 13 lots in Levitt Subdivision. The cost of ongoing and future repair and maintenance of the North Section will be divided into 26 equal parts and each lot using the North Section will be allocated 1/26th of said cost. b. Center Section is used by 24 lots, consisting of 4 lots in Harmony View Subdivision, 31ots in Joseph's Meadows Subdivision, 41ots in Pinion Grove Exemption, and 13 lots in Levitt Subdivision. The cost of future repair and maintenance of the Center Section will be divided into 24 equal parts and each lot using the Center Section will be allocated 1/24th of said cost. c. South Section is used by 17 lots, consisting of 4 lots in Pinion Grove Exemption, and 13 lots in Levitt Subdivision. The cost of repair and maintenance of the South Section will be divided into 17 equal parts and each lot using the South Section will be allocated 1/17th of said cost. Road Maintenance Agreement 6/6/96 Draft Page 2 J 3. Method of Payment of Road Maintenance Costs. a. Obligation of Homeowners Association. The obligation to pay the proportionate share of the Harmony Lane repair and maintenance costs, as allocated above, shall be the responsibility of and shall be paid by the Homeowners Association for each affected subdivision. The sums due from each Homeowners Association shall be determined by the number of lots whose owners are members of each such association who use the various sections of Harmony Lane as specified herein. It is anticipated that such Homeowners Association shall assess each lot whose owners are members of such Association such lot's allocated share, provided, however, that the precise manner in which each Homeowners Association collects the monies from the individual lot owners shall be in accordance with the applicable internal documents and procedures of each Homeowners Association. b. Manner of Assessment. Prior to May 31 during each year of the term of this Agreement, the Presidents, or such other representatives as may be designated in writing, of each Homeowners Association which is a party hereto, shall meet and confer with. respect to items of routine repair and maintenance of Harmony Lane which may be expected during the succeeding twelve (12) months. Upon the unanimous agreement of such representatives, each Homeowners Association shall, within twenty (20) days, pay to a joint road maintenance fund the total amount due from each such Association, which shall be equal in amount to the cumulative amount allocated in accordance witih this Agreement to the lots whose owners are members of such Association. Upon reaching such agreement, the representatives shall designate one of their number to negotiate and enter into such contracts for services with third parties as are appropriate to cause the anticipated repair and maintenance to be accomplished. The cost for such services shall then be paid from the sums deposited into the road maintenance fund by the parties hereto. In the event that the representatives of the Homeowners Associations are unable to reach unanimous agreement with respect to items of repair and maintenance and allocations therefor, the Harmony Lane road maintenance allocation for each lot within each subdivision party hereto shall remain the same as said allocation for the preceding year and the amount due from each party hereto shall be the same as in the preceding year. Allocations for emergency or extraordinary repair and maintenance to Harmony Lane shall be made in accordance with the terms of this Agreement and the Homeowners Associations party hereto shall have the authority to contract and pay for such emergency or extraordinary repair and maintenance to Harmony Lane by following the same procedures as those set forth herein for routine repair and maintenance. Road Maintenance Agreement 6/6/96 Draft Page 3 4. Term of Agreement. The initial term of this Agreement shall be for a period of ten (10) years, and shall thereafter automatically renew for successive five (5) year periods; provided, however, that this Agreement shall terminate automatically upon the earlier of (i) the acceptance of the responsibility for repair and maintenance of Harmony Lane by any state, county, municipal, or quasi -municipal (such as a road maintenance district) entity, or (ii) the anniversary date of this Agreement in the year 2051.. 5. Additional Users of Harmony Lane. The parties recognize and agree that as of the date hereof there are other users of Harmony Lane who are not parties to this Agreement, and further recognize that there are other lands susceptible of development that may use Harmony Lane as access (hereinafter collectively referred to as "Additional Users of Harmony Lane"). The parties hereby agree that this Agreement may be amended without their further consent by the addition of Additional Users of Harmony Lane so long as such Additional Users of Harmony Lane agree to pay their proportionate share of the repair and maintenance costs of Harmony Lane allocated in accordance with the concepts established by this Agreement, and provided further, that such Additional Users of Harmony Lane execute and deliver to the parties hereto a memorandum indicating their agreement and the necessary changes in the number of users of the various sections of Harmony Lane and the resultant changes in allocation of costs. 6. Miscellaneous. a. GoverningLaw and Vemre. This Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of Colorado. The parties agree that any action to enforce any provision of this Agreement shall be brought in the District Court in and for Garfield County, Colorado, and that such court shall be the exclusive venue within Colorado for any such action. b. Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes any prior understandings and agreements between them with respect thereto. c. Recovery of Attorney Fees. In the event suit is brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover, as an element of its costs of suit and not as damages, reasonable attorney fees as determined by the Court: d. Titles and Captions. The headings used in this Agreement are for purposes of convenience only and shall not be used in interpreting this Agreement. e. Sigrratrires in Counterparts. This Agreement maybe executed in one or more counterparts, all of which shall constitute a single agreement and each of which shall be an Road Maintenance Agreement 6/6/96 Draft Page 4 )6f'O 'F 96 16:22 'Y970 945 9769 L�RRI GREEN l UUB i { i original for all purposes. It is agreed and understood that the :signatures of civic: parties on a copy hereof transmitted by facsirrile shall be sufficient as if ap original signature. f. Severahiliry. If any term or provisirm of t}ais Agreertrent is held to be invalid, unenforceable or illegal for any reason whatsoever, such pro%vision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. IN W171VTSS YY�F.REUF, the parties hereto have exec�atCd this Agreement as of the day and year first above written. 6/6(96 Draft HARMONY V i-IaMEO�VNERS ASSOCIATION President FINIUN GRi.)VE I-IO1vTEC)ti}'NERS ASSOCIATION By JOSEP.H'S MEADQV�%S HOMEOWNERS ASSOCIATIQN LEVITY SUT3DIVI$ION IIQMEOWNERS A5SQCIATI©N Road Meintrnance Agrexment Page 5 President President President OP!06/96 16:44 $970 945 9769 LARRY GREEN -�-�-� LEVITT r� � � r original for all purposes. It is agreed and understood that the signatures of the parties on a copy hereof transmitted bar facsimile shall. be su�'icient as if an original signature. f. S'evsrtrbility. If any term or provision oFthis Agi;eemem is held to be invalid, unenforceable or 'illegal for any reason whatsoever, such provision shall be severed from this Agreement and shall not afFect the validity of the reniaindez of tivs Agreement. INWITNESS WHFIzEOF, the parses hereto have executed this Agreemetrt'as of the day and year first above written. HARMONY VIEW HOMEOWi�ER5 ,ASSOCIATION President PINYON GROVE HOIVlEOWNERS ASSOCIATION By President �OSEPH'S MEADOWS HOMEOWNERS ASSOCIATION � , � ,�1 X E President LEVITY SUBDIVISION HOMEOWNERS ASSOCIATION By president Road Maintenance Agreetncnt 6/6/96 Ihaft Page 5 06:06/96 16:99 $970 645 9769 LARRY GREEN 0 008 original for all purposes. It is agreed and understood that the signatures of the parties on a copy hereof transmitted by facsimile shad be sufficient as if an original signature. f. Severai;il ty, if any term oc provision of dus Agreement is held to be invalid, unenforceable or illegal for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. IN WITNESS WHF,F�'�F, the parties hereto gave executed this Agreement as of the day and year first above written. M:l JOSEPH'S MEADOWS HOMEOWNERS bbUUIAIION By, LEVITY SUII;DIVISIUN HUMEOWI�IERS ASSOCIATION Rid Mxintcnancc Agrccmost b/5l'96 Draft Paga 5 ASSOCIATION President ASSOCIATION President President President RIGHT-OF-WAY FENDERLANE HARMONY VIEW FILING 1 CENTER LINE HARMONY VIEW FILING 1 ACCESS EASEMENT N M N CENTER LINE HARMONY VIEW FILING 2 ACCESS EASEMENT HARMONY VIEW FILING 2 1 I 1 1 0�0 to CENTER LINE WIND RIVER ROAD ACCESS EASEMENT i 1 1 1 I I 0 1 1 t DELANEY & BALCOMB, P. C. ATTORNEYS AT LAW DRAWER 790 ROBERT DELANEY KENNETH BALCOMB (OF COUNSEL) JOHN A. TH ULSON EDWARD MULHALL, JR. SCOTT BALCOMB LAWRENCE R. GREEN ROBERT M. NOONE TIMOTHY A. TH ULSON MARGARET O'DONNELL LORI J.M. SATTERFIELD EDWARD Be OLSZEWSKI Mr. Tom Levitt P.O. Box 414740 Kansas City, MO 64105 Dear Tom: GLENWOOD SPRINGS, COLORADO SIGU2 October 9, 1995 1 B IS COLORADO AVENUE TELEPHONE 945-6546 TELECOPIER 945-B902 joe AREA CODE 303 Enclosed are the following documents which you requested be sent t9 �X�Gu. - - 1. Executed Peak/Le>>itt Agreement ecuted Saghatoleslami/LevittAgreemem 3 . Closing Statement Saghatoleslami/Lei�itt transaction. In addition, Larry has directed me to send the following additional items: A. Leavenworth letter to Land Title Guarantee Company. B. Letter from the Trust to Larry authorizing the expenditure of $20,029 from the Trust's funds held in the savings account. C. Letter between Leavenworth and Larry extending the closing date from September 27th to October 2, 1995. Very truly yours, DELANEY & BALCOMB, P.C. Bernie Darien Paralegal bd Enc. AGREEMENT THIS AGREEMENT, made this�day of June, 1995, by and between PEAK DEVELOPMENT, INC. (hereinafter Peak) and THE 1993 THOMAS W. LEVITT FAMILY TRUST, THOMAS W. LEVTI'T and MOLLY G. LEVITT (hereinafter referred to collectively as Levitt or by their individual names). RECITALS 1. Peak is the owner of that certain parcel of real property located in Garfield County, Colorado, and described on Exhibit A attached hereto and incorporated herein by this reference (hereinafter the Peak Property). It is specifically acknowledged that the Peak Property shall not include the "Sale Parcel" as defined in paragraph 7 hereof. 2. The 1993 Thomas W. Levitt Family Trust is the owner of that certain parcel of real property located in Garfield County, Colorado, and identified and described on Exhibit B attached hereto and incorporated herein by this reference as the Levitt Trust Property. It is specifically acknowledged that the Levitt Trust Property shall include the "Sale Parcel" as defined in paragraph 7 hereof. Thomas W. Levitt is the owner of that certain parcel of real property located in Garfield County, Colorado, and identified and described on Exhibit B as the Thomas W. Levitt Property. Molly G. Levitt is the owner of that certain parcel of real property located in Garfield County, Colorado; and identified and described on Exhibit B as the Molly G. Levitt Property. Hereinafter, the properties described on Exhibit B are referred, to collectively as the Levitt Properties, or, individually as the Trust Property, the Tom Levitt Property, or the Molly G. Levitt Property. 3. Jasper Johns (hereinafter Johns) is the owner of a parcel of real property (hereinafter the Johns Property) which is immediately east of the Peak Property and north of the Levitt Trust Property. Peak and Levitt are presently the owners of anon -exclusive easement across and upon the Johns Property for access and utility purposes (hereinafter the Pre -Existing Easement) for the benefit of their. _respective properties. 4. The Peak Property is the subject of an Application for Subdivision Exemption _ which was approved upon certain, terms and conditions by the Board of County Commissioners of Garfield County on May 15, 1995. The Peak Property shall hereafter be referred to as the Peak Subdivision Exemption. Under the present configuration the lot lying in the Southeasterly quadrant of the Peak Subdivision Exemption is identified as Lot 1. Hereinafter Lot 1 will mean the southeasterly lot of the Peak Subdivision Exemption, regardless of its final designation on the Peak Subdivision Exemption Plat. 5. Levitt has no definite plans of subdividing any of the Levitt Properties, but it is reasonably foreseeable that Levitt may wish to subdivide one or more of the Levitt Properties in the future. 6: Peak and Levitt agree that relocating the Pre -Existing Easement would be of benefit to the use and enjoyment of the Peak and the Levitt Properties, as the same now exist or may hereafter be subdivided and developed. To this end, Peak and Levitt have independently made inquiries of Johns to determine if he would be willing to grant a new access easement across his property for the benefit of the Peak and the Levitt Properties. NOW, THEREFORE, in consideration of the keeping and performance of the mutual promises and covenants contained herein, the parties hereto agree as follows: 1. Acquisition of New Easement. Immediately upon the execution hereof, the parties shall jointly attempt to obtain from Johns a new easement across the Johns Property. Said easement shall be in the approximate location of "Whitecloud Road" as the same crosses the Johns Property and as shown on the map which is attached hereto and incorporated herein by this reference as Exhibit C (hereinafter the "East-West Whitecloud Road Segment"). The parties agree that the easement they request from Johns for the East- West Whitecloud Road Segment shall be sixty (60) feet in width, shall be perpetual and non-exclusive, and shall be for the purposes of providing ingress and egress and all necessary and appropriate utility services, which utilities shall be installed underground, to the Peak and all Levitt Properties as the same now exist or may hereafter be subdivided. The form of the document of conveyance from Johns to Peak and Levitt of the easement for the East- West Whitecloud Road Segment shall be in form and substance acceptable to counsel for both Peak and Levitt. The legal description for the new easement shall be provided by High Country Engineering of Glenwood Springs, Colorado. In the event that the parties are unsuccessful in obtaining the new easement, across the Johns property within twenty (20) days from the date the legal description for the new easement is provided to counsel for Levitt, then this Agreement, and all the parties' mutual rights and obligations hereunder, except for the obligation to transfer the "Sale Parcel" as provided in paragraph 7 below, may be terminated at the discretion of either party hereto by giving notice to the other party, and upon such notice this Agreement shall be of no further force and effect. 2. Relinquishment of Pre -Existing Access Easement. In the -event that Johns agrees to convey to Peak and Levitt the easement for the East-West Whitecloud Road - _ Segment as aforesaid, Peak and Levitt agree that simultaneously with the delivery of such deed, they shall execute and deliver their quitclaim deed to Johns conveying to him their �`'`��r interest in that portion of the Pre -Existing Easement identified as "Pre -Existing Easement" on .Exhibit C. 3. Road Improvement and Construction. (a) Harmony Lane. Both the Peak Subdivision Exemption property and the Levitt Properties will use Harmony Lane as access. Pursuant to the approval for the Peak Subdivision Exemption, Peak is obligated to improve a portion of Harmony Lane to the following standards: i. Two (2) ten -foot travel lanes; ii. Two (2) one -foot shoulders; -2- iii. Four (4) one -foot borrow ditches; and iv. Compacted aggregate road base. Because the Levitt Properties will benefit from such improvement to Harmony Lane, Peak and Levitt agree that they will share equally in the cost of design and construction of the aforesaid improvements to Harmony Lane. (b) East-West Whitecloud Road Segment and Intersection. Both the Peak Property and the Levitt Properties will use the East-West Whitecloud Road Segment as access. In addition, the parties' joint use of the East-West Whitecloud Road Segment will require the design and construction of an intersection between Whitecloud Road and the road that continues westerly into the Peak Subdivision Exemption (hereinafter the Whitecloud Road/Peak Road Intersection). Pursuant to the approval for the Peak Subdivision Exemption, Peak will construct the access road into the Peak Property to "semi - primitive" road standards as set out in Section 9.35 of the Garfield County Subdivision Regulations. In the event that any of the Levitt Properties are subdivided in the future, it is likely that the access road to such subdivided property would have to be constructed to "rural access" road standards under Section 9.35 of the Subdivision Regulations. Peak and Levitt therefore agree that they shall jointly cause the East-West Whitecloud Road Segment, for its entire length from Harmony Lane to and including the Whitecloud Road/Peak Road Intersection, to be designed and constructed to rural access road standards. The cost of such design and construction shall be shared as follows*. i. Peak shall pay for the design and construction of the .road to semi - primitive standards, '- ii. Levitt shall pay the incremental cost increase associated with the upgrade of the road from semi -primitive to rural access standards. iii. The parties shall share equally in the cost of the design: and construction of the Whitecloud Road/Peak Road Intersection. The parties agree that.such intersection shall favor vehicles continuing from the East-West Whitecloud Road Segment onto the North -South Whitecloud Road Segment as hereinafter defined. (c) Method of Payment of Shared Road Construction Cost. High Country Engineering of Glenwood Springs, Colorado, shall perform the necessary engineering services related to the improvement and construction of Harmony Lane, the East-West Whitecloud Road Segment, and the Whitecloud Road/Peak Road Intersection. High Country Engineering shall estimate the construction costs for such roads and intersection in accordance with their design and shall allocate the parties' respective share of such cost in accordance with this Agreement. Levitt shall have a period of seven (7) days from the receipt by him or his representatives of the design work, construction estimates and cost allocation to review and approve the same. If Levitt has any questions with regard to the materials so received, he shall provide High Country Engineering and Peak with written -3- notice thereof within such seven (7) day period. The parties shall thereafter attempt in good faith for an additional period of seven (7) days to resolve any questions raised by Levitt with respect to the design work, construction estimates, and cost allocation. If such questions are not resolved within such period, Peak shall have the right to unilaterally improve Harmony Lane as required by the approval for the Peak Subdivision Exemption, and to unilaterally construct the East-West Whitecloud Road Segment to semi -primitive standards, and to forebear from constructing any portion of the Whitecloud Road/Peak Road Intersection. Upon the parties' mutual approval of the engineering design work, construction estimates, and cost allocations, they shall, within seven (7) days of such approval, deposit their respective shares of the estimated construction cost with Pitkin County Title, Inc. as escrow agent. Pitkin County Title shall thereafter be authorized to disburse such funds to the appropriate engineers or contractors upon inspection and approval of the completed road improvements. Joel D. Barnes of Ashcroft -Barnes Construction, Inc. shall be the designated inspector with authority to authorize the escrow agent to release escrowed funds. Levitt shall have the right to have his own individual inspection of the work. performed at his cost. (d) North -South Whitecloud Road Segment. Levitt shall have the sole discretion to determine the time of construction and the standards to which the North -South Whitecloud Road Segment will be constructed, and shall have the sole responsibility to pay all costs associated with the construction of such North -South Whitecloud Road Segment. 4. Road Maintenance Costs. (a) East-West Whitecloud Road Segment. The parties agree that the cost of repair and maintenance, including, without limitation, snow removal, of the East-West Whitecloud Road Segment and the Whitecloud Road/Peak Road Intersection shall be borne by the parties in proportion to the number of legally created lots that are allowed to use the road for access. (b) Method of Payment of Road Maintenance Costs. The obligation to pay the proportionate share of repair and maintenance of the East-West Whitecloud Road Segment and Whitecloud Road/Peak Road Intersection shall be satisfied and enforced as follows: The parties agree that such obligation shall be the obligation of the parties hereto for so long as their respective properties remain unsubdivided. Upon the subdivision (or subdivision exemption) of any of the properties, the obligation to pay road maintenance shall become the responsibility of the homeowners' association which shall be created for such subdivision (or subdivision exemption.). The obligation to pay a proportionate share of road maintenance as set forth in this Agreement shall be stated as a plat note on the plat for the Peak Subdivision Exemption and on the plat of any subdivision or subdivision exemption created out of any of the Levitt Properties. Such plat note shall provide that each such homeowners' association shall be responsible to pay the total amount of the obligation for all lots whose owners are members of that association. Thereafter, each such homeowners' association shall assess each lot whose owners are members of such association such -4- lot's allocated share. The failure by any lot owner to pay the allocated share for such lot shall give the homeowners' association in which such lot owner is a member the right to record and enforce a lien against any such defaulting lot in order to recover any sum not paid by such lot. It is recognized and agreed that each such homeowners' association shall only have authority to record and enforce a lien against a property whose owner is a member of such association, so that, for example, the failure to pay a share allocated to a lot whose owner is a member of a homeowners' association for any lot(s) which may be created from the Thomas W. Levitt Property would not give any entity the authority to record a lien on The 1993 Thomas W. Levitt Family Trust Property or any lot(s) which may have been created therefrom. (c) North -South Whitecloud Road Segment. The parties agree that the cost of repair and maintenance of the North -South Whitecloud Road Segment shall be borne entirely by the Levitt Properties, unless the owner of Lot 1 elects to utilize the North -South Whitecloud Road Segment as access to his residence as authorized in paragraph 6(a) hereof. In that event, Lot 1 of the Peak Subdivision Exemption shall be responsible to pay a proportionate share of the cost of repair and maintenance, including snow removal, of the North -South Whitecloud Road Segment, calculated as follows: First, the total number of legally created lots with the ability to utilize the North - South Whitecloud Road Segment as access will be determined. Lot 1 of the Peak Subdivision Exemption shall only be responsible for a fraction of the cost attributable to one lot's share of the total cost, with the numerator of such fraction being the actual number of feet along the North -South Whitecloud Road Segment from the Whitecloud Road/Peak Road Intersection to the Lot 1 driveway, and the denominator being the total number of feet from the said - intersection to the Peak/Levitt Trust Property line. For example; if there are 15 total lots, including Lot 1 of the Peak Subdsion Exemption, able to utilize the North -South Whitecloud Road Segment as access; and the owner of Lot 1 uses 200 feet of the North -South Whitecloud Road Segment to get to his driveway; and the total length of the North -South= Whitecloud Road Segment from the intersection to the Peak/Levitt Trust Property boundary is 800 feet; the owner of Lot 1 would be responsible to pay 25% of 1/15th of the cost of repairs and maintenance, including snow removal, of the North -South Whitecloud Road Segment. The obligation of Lot 1 to pay its appropriate share of such cost shall be enforceable through the homeowners' association for the Peak Subdivision Exemption in the same manner as provided in paragraph 4(b) hereinabove. (d) Right to Remove Levitt Trust Property From Road Maintenance Obligations. After its construction, Whitecloud Road will extend onto the Levitt Trust Property, thus providing access to the Levitt Trust Property. In the event that the Levitt Trust Property is subdivided, it is possible that some of the lots to be created from the Levitt Trust Property will not be physically accessible from Whitecloud Road. In such event, the owner of the Levitt Trust Property shall have the right, only for those lots which may be created -5- from the Levitt Trust Property which do not have access to or from Whitecloud Road, to formally abandon or otherwise forego all rights to the use and enjoyment of Whitecloud Road and the easement therefor. Such abandonment may be accomplished by the owners) of such lots) delivering and recording a quitclaim deed conveying to the beneficiaries and users of Whitecloud Road all of such owners' right, title and interest in and to Whitecloud Road and the easement therefor. From and after the recording of such deed(s), those lots within the Levitt Trust Property so conveying their interest in Whitecloud Road and the easement therefor shall be free of any cost or other responsibility whatsoever associated with the repair, maintenance, or use of Whitecloud Road, and the easement therefor and this Agreement shall be of no further force and effect with respect to such lot(s). It is expressly understood that under this paragraph there will always be at least one parcel of the Levitt Trust Property (that parcel on which is physically located the extension of Whitecloud Road) which may not abandon its right to use Whitecloud Road and will therefore be responsible for a proportionate share of the repair and maintenance costs associated with the entire length of Whitecloud Road. 5. Additional Covenants of Peak. Contingent upon Johns granting the easement to Peak and Levitt for the East-West Whitecloud Road Segment as aforesaid, Peak further covenants and agrees with Levitt as follows: (a) Peak shall grant to Levitt, for the benefit of all Levitt Properties, an easement along the course of Whitecloud Road as the same crosses the Peak Property as identified on Exhibit C.(hereinafter the North -South Whitecloud Road Segment}, including the Whitecloud Road/Peak Road Intersection. The easement for the North -South Whitecloud Road Segment and intersection shall be described by metes and bounds as a strip of land sixty (60) feet in width with the easement's easterly boundary line being co- extensive with the easterly boundary line of .the: Peak Property, and shall extend as far south as the property line between the Peak Property and the Levitt Trust Property. Such easement shall be perpetual and non-exclusive,- and shall be for the purposes of providing ingress and egress and all necessary and appropriate utility services, which utilities shall be installed underground, to all Levitt Properties, as the same now exist or may hereafter be subdivided. Such easement shall further provide that Levitt shall have the right to plant vegetation within the easement, provided that .prior,. to planting any such vegetation Levitt shall obtain the approval of the Peak Subdivision Exemption homeowners' association. Such permission shall be granted upon the condition that the vegetation to be planted by Levitt _ within the easement will not unreasonably interfere with the view corridors from any improvement constructed upon Lot 1. The aforesaid easement for the North -South Whitecloud Road Segment and intersection shall be conveyed to Levitt by deed in form and substance acceptable to counsel for Levitt and shall be executed and delivered to Levitt simultaneously with the execution and delivery of the deeds referred to in paragraphs 1 and 2 hereof. (b) Peak agrees that it shall give the name Whitecloud Road to both the East-West Whitecloud Road Segment and the North -South Whitecloud Road Segment as shown on Exhibit C on the Plat of the Peak Subdivision Exemption. -6- (c) Peak, on behalf of itself, its officers, directors and shareholders, agrees that it shall not in any way object to any proposed subdivision of any of the Levitt Properties so long as the proposed subdivision of such Properties is generally consistent with the approved Peak Subdivision Exemption. For purposes of this paragraph, any subdivision of the Tom Levitt Property and/or the Molly G. Levitt Property which proposes no more than fifteen (15) lots on both such Properties, or any subdivision of the Levitt Trust Property which proposes no more than eight (8) lots on such Property, with no lot on any of the Levitt Properties being less than four (4) acres in size, shall be deemed generally consistent with the Peak Subdivision Exemption. 6. Additional Covenants of Levitt. Contingent upon Johns granting the easement to Peak and Levitt as provided in this Agreement, Levitt further covenants and agrees as follows: (a) Levitt shall allow the owner of Lot 1 of the Peak Subdivision Exemption to utilize the North -South Whitecloud Road Segment as access to any residence to be constructed on said Lot 1, and to construct no more than one (1) driveway from said North -South Whitecloud Road Segment; provided, however, that said driveway and the intersection thereof with Whitecloud Road shall be constructed with appropriate drainage and safety features. In the event that the owner of Lot 1 elects to utilize the North -South Whitecloud Road Segment as his access in accordance with this paragraph, then such owner shall be obligated to pay a proportionate share of the cost of maintenance and repair hereof in accordance with paragraph 4(c) hereinabove. (b) Levitt agrees that he shall not file any application for subdivision or subdivision exemption with Garfield County for- any of the Levitt Properties until the recording of the Peak Subdivision Exemption Plat or August 15, 1995, whichever shall first occur. Further, Levitt agrees that he shall not publicly :market or advertise for sale any individual lots) which may be created by the subdivision or subdivision exemption of any of the Levitt Properties until the earlier of May 1, 1996 or the sale by Peak of the four lots contained within the Peak Subdivision Exemption. 7. Transfer of Sale Parcel. No later than thirty;�,(30) days from the date of this Agreement, Peak shall convey to Levitt by quitclaim deed that parcel of real property identified as the "Sale Parcel" on Exhibit C. In consideration of the aforesaid conveyance, Levitt shall pay Peak the sum of $100.00. "Levitt shall cause his. attorney to prepare the appropriate boundary line adjustment affidavit for execution by the parties which shall be recorded in the records of Garfield County, Colorado, simultaneously with the quitclaim deed called for in this paragraph, in accordance with the boundary line adjustment provisions of the Garfield County Subdivision Regulations. 8. Utilit�Lines. It is possible, but unknown as of the date hereof, that Peak and Levitt might enjoy mutual economic benefit from a cooperative effort in the engineering and installation of certain utility lines (e.g., natural gas, electric, and telephone) to provide utility service to the Peak Subdivision Exemption and any foreseeable development upon the Levitt -7- Properties. The parties hereto state their intent to mutually investigate the questions of utility line design and installation and to enter into an agreement for the cost sharing of such items, if it is mutually determined that such an agreement would be beneficial and a mutually satisfactory agreement can be negotiated. The parries hereby state their intent to enter into such agreement no later than twenty (20) days after the legal description for the new easement is provided pursuant to paragraph 1 hereof. It is expressly agreed and acknowledged by the parties that absent such agreement by such date, nothing contained herein shall be construed so as to create any further obligations on any of the parties with respect to the mutual design and installation of utility lines or to prevent_ any of the parties from unilaterally designing and installing utility lines for the sole benefit of the property owned by that party. It is further understood and agreed that this paragraph is a separate and independent covenant of the parties and that no action or omission of the parties with respect to the design and installation of utility lines as aforesaid shall be construed as a breach or default of any other covenant or condition of this Agreement. 9. Miscellaneous. (a) Notices. All notices under this Agreement shall be in writing and shall be effective when mailed by overnight delivery service or by facsimile transmission as follows: Notices to Levitt shall be as follows: Thomas W. Levitt P.O. Box 414740 Kansas City, MO 64141 (Street Address: 1009 Central Kansas City, MO 64105) Fax #816-221-5504 With copy to: Lawrence R. Green, Esq. DELANEY & BALCOMB, P.C. P.O. Drawer 790 Glenwood Springs, CO 81602 (Street Address: 818 Colorado Avenue Glenwood Springs, CO 81601) Fax #970-945-9769 Notices to Peak shall be as follows: Peak Development, Inc. P.O. Box 8909 Aspen, CO 81612 (Street Address: 0100 Little Elk Creek Avenue Snowmass, CO 81654) Fax #970-927-1461 -8- With copy to. Charles T. Brandt, Esq. Holland & Hart 600 East Main Street Aspen, CO 81611 Fax #970-925-9367 Any party may change its address for the purpose of giving notice under this Agreement by giving written notice of such change of address to the other party as provided in this paragraph. (b) Representatives. This Agreement shall be binding upon the parties hereto and their respective heirs, successors and assigns. (c) Governing Law. This Agreement shall be governed by, interpreted under, construed and enforced in accordance with the laws of the State of Colorado. (d) Entire Agreement/Modification. This Agreement contains the .entire ith respect to the subject matter hereof and supersedes understanding between the parties w any prior understandings and agreements between them with respect thereto. This Agreement may only be amended by a written agreement executed by all parties hereto, their heirs, successors or assigns, provided that, for purposes of amendment of paragraph 4 of this Agreement, at such time of times and to the extent that any of the Peak Property or the Levitt Properties become the subject of a recorded final. plat, then to the extent that any of such properties are included within a homeowners' association, such homeowners' association shall be deemed the successor of the party which now owns such: property. (e) Recovery of Attorney Fees. In the event suit is brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover, as an. element of its costs of suit and not as damages, reasonable attorney fees as determined by the court. (f) Titles and Captions. The headings used in this. Agreement are for purposes of convenience only and shall. not be used in interpreting this Agreement. (g) Signatures in Counterparts. This Agreement maybe executed in one or more counterparts, all of which shall constitute a single agreement and each of which shall be an original for all purposes. It is agreed and understood that the signatures of the parties on a copy hereof transmitted by facsimile shall be sufficient as if an original signature. (h) Severability. If any term or provision of this Agreement is held to be invalid, unenforceable or illegal for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. -9- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. PEAK DEVMENT, INC. Title: THE 1993 THOMAS W. LEVITT FAMILY TRUST Thomas W. Le @tt , Trustee ohn C. Davis, Trustee T HOMAS W. LEVITY -10- STATE OF COLORADO ) GARFIELD ) ss. COUNTY OF BAJ ) The above and foregoing was acknowledged before me this 28th day of June, 1995, by Joel D. Barnes as Pr si dpnt of PEAK DEVELOPMENT, INC. WITNNESS my hand and official seal. My corn�ission expires: Address: 818 Colorado Avenue Glenwood Springs, CO 81601 Idly commission expires gfay 1,1997 STATE OF M I SSOU iZ ( ) ) ss. COUNTY OF �i ACK SCE K' ) The above and foregoing was acknowledged before me this6thday of June, 1995, by JOHN C. DAVIS as Trustee of THE 1993 THOMAS W. LEVITT FAMILY TRUST. WITNESS my hand and official seal. My commission expires: Address: STATE OF Ni I SSO WZ. 1 ss. COUNTY OF ��4�K S6>� NOT C The above and foregoing was acknowledged before me this %��hday of June, 1995, by THOMAS W. LEVITT as Trustee of THE 1993 THOMAS W. LEVITT FAMILY TRUST. WITNESS my all My commission expires: Address: and official seal. STATE OF • Jackson county STATE OF p U R f ) ) ss. COUNTY OF 3 ACK SO f A ) The above and foregoing was acknowledged before me this tat day of June, 1995, by THOMAS W. LEVITT. WITNESS my hand and official seal. Q C My commission expires: STEVEN A. MTMFMLL Address: Notmy Public — Notary Seal STATE OF MIISSOURI Jackson County My Commission Expires: Sept. 29,1998 STATE OF M (S SO WZ 1 ) ) ss. COUNTY OF �TAC!'CS(SM ) The above and foregoing was acknowledged before me this ,26th day of June, 1995, by MOLLY G. LEVITT. WITNESS my hand and official seal. nw L� . ---_... NOTARY PUEILIC My commission expires: Address: STEVEN A. NII U*LL Nosy Public — Notary Seal STATE OF MISSOURI Jackson County My Commission Expires: Sept. 29, 1998 -12- NO AM BABALTTJEALTY EXHIBIT A FAX N0. 3039?Z3783 • qf�&K-Itw p4a foilWMIL v:.. :: / • /1 Yl Mg /f }(/ // tnt / / W ;+ 1' 1 :14a3l f9k to ft Wgsbrly wumivy= d Sec*m n - .r EXHIBIT B Levitt Trust Property A PARCEL OF LAND SITUATED IN THE SW114 SWI /4 , THE N112 SE1 /4 SW1 /4 , THE W112 SWI /4 SEI/4, THE NEI/4 SW1/4, AND IN THE NW114 SN114 OF SECTION 28, TOWNSHIP 7 SOUTH, RANGE 87 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD, STATE OF COLORADO; SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID SECTION 28, A GARFIELD COUNTY SURVEYOR'S BRASS CAP FOUND IN PLACE; THEN N.89°40'17"E. ALONG THE SOUTHERLY LINE OF SECTION 28, 997.11 FEET TO A REBAR & CAP IN PLACE, LS # 22580, THE TRUE POINT OF BEGINNING; THEN N.03023'54"E. 1396.62 FEET TO AN EXISTING FENCELINE; THEN N.89°56119"E. ALONG SAID FENCELINE 96.34 FEET; THEN S.88051'41"E. ALONG SAID FENCELINE 248.00 FEET TO THE NORTHWESTERLY LINE OF AN EXISTING 60 FOOT ROAD EASEMENT AS DESCRIBED IN RECEPTION NO. 394063 OF THE GARFIELD COUNTY RECORDS; TEEN S. 00 *00'00"W. 15.65 FEET TO THE EAST -WEST CENTERLINE OF THE SM114 OF SECTION 28; THEN S.89*45'38"E. 28.99 FEET TO THE SOUTHWEST SIXTEENTH CORNER OF SECTION 28, A REBAR AND ALUMINUM CAP IN PLACE, LS # 22580; THEN CONTINUING ALONG SAID CENTERLINE 6.89`45138"E. 1084.38 FEET TO A REBAR & CAP IN PLACE, LS # 22580, ; THEN N. 01 *51 '54 "E. 4354 78 FEET TO A REBAR & CAP IN PLACE, LS # 22580, ; THEN S.89"45'38"E. 250.00 FEET TO A POINT ON THE EASTERLY LINE OF SAID NEI/4 SN1/4 OF SECTION 28, A REBAR & CAP IN PLACE, LS # 22580; THEN S. 01 '51 '54 "F. ALONG THE NORTH -SOUTH CENTERLINE OF SECTION 28, 435.78 FEET TO THE SOUTH CENTER SIXTEENTH CORNER OF SECTION 28 (kWENCE A REBAR AND CAP, LS # 2376 BEARS-:N. 37 010103 "E. 1. 28 FEET) ; THEN S. 89 °45' 09 "E. 105.05 FEET TO THE CENTERLINE OF A ROAD AS CONSTRUCTED AND IN PLACE, ALSO BEING A REBAR h CAP IN PLACE, LS t 22580; THEN CONTINUING ALONCT'SAID CENTERLINE THE FOLLOWING NINE (9) COURSES: 1) S. 01 °14'32 "E. 280.88 FEET; 2) S.02001'43"W. 115.18 FEET; 3) S.00039'22"W. 148.5.E FEET; 4) 5.01 044'39"E. 133.99 FEET; 5) S. 04 `28'45 "E. 106.53 FEET; 6) 100.07 FEET ALONG TEE ARC OF A CURVE TO TEE LEFT, HAVING A RADIUS OF 1475.00 _FEET, A CENTRAL ANGLE OF 03°53'14" (CHORD BEARS S.06°25132"E. 100.06 FEET); 7) S. 08.21 '59 "E. 67.98 FEET; 8) 95.23 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A RADIUS OF 126.84 FEET, A CENTRAL ANGLE OF 43°01'06" (CHORD BEARS S.13°08'34"W, 93.01 FEET); 9) S.38"12'03"W. 18.82 FEET TO A REBAR 8 CAP IN PLACE, LS * 22580„ THEN S.89°43'28"W. 30. 74 FEET A REBAR & CAP IN PLACE, LS # 22580, ; THEN N. 01 "52' 46 "E. 329.19 FEET TO A REBAR h CAP IN PLACE, LS # 22580; THEN N. 89'58'09 "W. 110.00 FEET ' TO A POINT ON THE NORTH -SOUTH CENTERLINE OF SAID SECTION 28, A REBAR 4 CAP IN PLACE, LS # 22580; THEN N.02°06'39"E. ALONG SAID CENTERLINE 49.20 FEET TO A POINT ON THE. EAST -WEST CENTERLINE OF THE SEI/4 S[91/4 OF SECTION 28, A REBAR h CAP IN PLACE, LS P 22580; THEN S. 89 °57' 05 "'°. ALONG SAID CENTERLINE 1353.02 FEET TO A POINT ON THE NORTH -SOUTH CENTERLINE OF THE SW1, 4 OF SECTION 28, A REBAR h CAP IN PLACE, LS * 22580; THEN S. 03'2354 "FI. ALONG SAID CENTERLINE 686.91 FEET TO THE WEST SIXTEENTH CORNER COMMON TO SECTIONS 28 AND 33, A REBAR & ALUMINUM CAP IN PLACE, LS # 22580; THEN S.89'40'17"W. ALONG THE SOUTHERLY LINE OF SECTION 28, 374.64 FEET TO THE TRUE POINT OF BEGINNING; SAID PARCEL CONTAINING 37.847 ACRES, MORE OR LESS. EXHIBIT B (cont'd) Thomas W. Levitt Property A parcel of land situated in the SWAN W'/a, the NW'/aSW 4/4 of Section 28, and in the SEYaSE'/a of Section 29, Township 7 South, Range 87 West of the Sixth Principal Meridian, County of Garfield, State of Colorado, said parcel being more particularly described as Follows* Beginning at the Southeast corner of said Section 29, a Garfield County Surveyor's brass cap found in place; then S. 89°55'37" W. along the Southerly line of said Section 29, 714.33 feet; then N. 51°26'57" E. 980.26 feet to a point on the Easterly line of said Section 29; then N. 04054100" E. 777.70 feet to the South sixteenth comer common to Sections 28 and 29; then N. 04°54'00" E. along said Easterly line 17.48 feet to an existing fenceline; then the following four (4) courses along said existing fenceline. 1) S. 89043921" E. 489.10 feet; 2) N. 88056931" E. 162.00 feet; 3) S. 89013929" E. 230.00 feet; 4) N. 89055131" E. 78.62 feet, then S. 03°23'54" W. 1396.62 feet to a point on the Southerly line of Section 28; then S. 89040'17" W., along said line 997.11 feet to the point of beginning; said parcel containing 36.400 acres, more or less. Molly G. Levitt'Property A parcel of land consisting of the SE'/aSE'/a of Section 29, Township 7 South, Range 87 West of the Sixth Principal Meridian, County of Garfield and State of Colorado, EXCEPTING THEREFROM a parcel of land described as follows: Beginning at the Southeast Comer of said Section 29, a Garfield County Surveyor Brass Cap found in place; thence S. zW55'37" W. along the Southerly line of Section 29, 114.33 feet, thence N. 51°26'57" E. 980.26 feet to a point on the Easterly line of said Section 29; thence S. 04054'00" W. 612.23 feet to the point of beginning. - Noft t �c ouo'� DELANEY. & BALCOMB, P. C. ��Q 64 ATTORNEYS AT LAW DRAWER 790 64 GLENWOOD SPRINGS, G0j OEADO 81602 lip TDELANEY ,, (��. M?% W "'�' KENNE K TH BALCOMB (OF cOF COUNSEL) JOHN A. THULSON BIB COLORADO AVENUE EDWARD MULHALL, JR, SCOTT BALCOMB TELEPHONE 945-6546 LAWRENCE R. GREEN TELECOPIER 945-8902 ROBERT M. NOONE January 16, 1996 AREA CODE 970 TIMOTHY A. THULSON LORI J.M. SATTERFIELD LAWRENCE R. GREEN FAX -945-9769 EDWARD Be OLSZEWSKI SENT VIA FAX 927-1461 Joel D. Barnes, President Peak Development, Inc. P.O. Box 8909 Aspen, CO 81612 Dear Mr. Barnes: We are writing on behalf of The 1993 Thomas W. Levitt Family Trust, Thomas W. Levitt and Molly G. Levitt (hereinafter collectively referred to as Levitt), with respect to the Agreement between them and Peak Development, Inc. dated June 28, 1995. A copy of the referenced Agreement is attached to this letter. Among the many issues addressed in the Agreement, paragraph 1 thereof provides, in relevant part, "in the event that the parties are unsuccessful in obtaining the new easement across the 'Johns property within twenty (20) days from the date a legal description for the new easement is provided . . then this Agreement, and all the parties' mutual rights and obligations hereunder, . . may be terminated at the discretion of either party hereto by giving notice to the other party. . " As you are aware, the quoted sentence notwithstanding, the parties have been working diligently for almost six months to acquire the easement and construct the new roadway along its course. hat effort has finally succeeded and the formal easement deed was obtained from Mr. Johns on Friday, December 22, 1995. You and Levitt are now prepared to complete the settlement of your respective payment obligations with respect to improvement of Harmony Lane and construction of the new roadway along the new easement. Joel D. Barnes, President January 16,1996 Page 2 Given the unforeseen circumstances which the parties encountered in the performance of certain of their obligations under the Agreement, and the length of time that has been necessary to accomplish that performance, it appears to us that the parties should modify the Agreement to reflect what has actually transpired and to ensure that the prospective terms of the Agreement will remain in full force and effect for the mutual benefit of the parties. We therefore request that you acknowledge and agree to the following modifications of the Agreement: 1. Notwithstanding the provisions of paragraph 1 of the Agreement with respect to termination of the Agreement if the new easement across the Johns property is not obtained within a stated time period, the parties hereby agree that in light of their. receipt and acceptance of an easement deed from Jasper Johns for an easement along the course of the roadway now constructed and in place, the parties forever waive their right to terminate the Agreement as provided in paragraph 1 thereof. '2. The parties agree that due to construction difficulties encountered in the field, the intersection between the road sections defined in the Agreement as the East-West Whitecloud Road Segment and the North -South Whitecloud Road Segment now favors vehicles continuing in an East/West direction instead of vehicles turning onto the North -South road section. Notwithstanding anything. to the contrary contained in paragraph 3(b)(iii) of the Agreement, the parties hereby.agree that the foregoing change made in the field is acceptable. 3. paragraph respective follows: share of road improvement Notwithstanding anything tc 3(c) of the Agreement, the the contrary contained in parties shall pay for their and construction costsas a. Levitt's share of road improvement and construction cost is $48,345.52, payable as follows: i. $30,420.75 previously paid to David Rippy Construction by Levitt; ii. Retainage of $703.86 which will be paid by Levitt directly to David Rippy Construction upon Rippy's completion of the road improvements; •04 Jcel D. Barnes, President January 16,1996 Page 3 iii. $3775.80 to be paid by Levitt to Peak upon the mutual execution of this letter agreement as reimbursement to Peak of a portion of Levitt's share of road construction costs previously paid by Peak; and iv. Levitt's payment directly to Yenter of its bill for blasting services in the amount of $13,445.11, which amount will be paid no later than January 19, 1996. b. As its share of road improvement and construction costs, Peak has paid or shall pay the full balance of any invoice submitted by David Rippy Construction or any subcontractor thereof who performed work on the roadway as and when the same become due. c. As its share of the cost of roadway and intersection design as provided for in paragraph 3 of the Agreement, Levitt shall pay directly to High Country Engineering the sum of $1,447.02 and shall reimburse Peak the sum of $110.00 upon mutual execution of this agreement. By their signatures on this Agreement, the parties hereto specifically agree to the foregoing allocation and payment method of all costs incurred related to the construction or improvement of roads as set forth in the Agreement. 4. Upon mutual execution of this letter agreement, Peak shall pay directly to Delaney & Balcomb, P.C. the sum of $4,850.00 as reimbursement to Levitt of 'a portion of attorney fees ,incurred by Levitt with respect to acquisition of a strip of real property from Sirous Saghatoleslami and acquisition of an access and utility easement across property owned by Jasper Johns, which easement was the subject of the Agreement and which will benefit the properties owned by Peak and Levitt. Payment of the aforesaid sum by Peak to Delaney & Balcomb, P.C. shall fully satisfy Peak's obligation to contribute towards attorney fees incurred by Levitt related to the Agreement or this letter agreement. 5. Notwithstanding anything to. the contrary contained in paragraph 5(b) of the Agreement, the parties agree that the section of roadway defined in the Agreement as the East-West Whitecloud Road Jcel D. Bames, President January 16,1996 Page 5 you likewise agree to these modifications, please sign this letter agreement and return an executed original to the undersigned. Very truly yours, DELANEY & BALCOMB, P.C. Lawrence x. careen LRG:bd The parties hereto hereby agree to the foregoing modifications t the Agreement dated June 28, 1995, between them. THE 1993 THO S.W. LEVITY FAMILY TRUST By J hn C. Davis, Trustee Thomas W. Levitt, Trustee Thomas W. Levitt u wvWv - Mo11y,G. Levitt PEAK DEVE,LOPMENrp.ANC . Barnes, President