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Home My WebLink About2016 Resolution No. 050• • • RESOLUTION NO. SO__ SERIES OF 2016 A RESOLUTION SUPPORTING THE ENGLEWOOD MCLELLAN RESERVOIR FOUNDATION TO EXCHANGE 12 .3 ACRES OF ENGLEWOOD MCLELLAN RESERVOIR PROPERTY IN HIGHLANDS RANCH PLANNING AREA 81 (PA 81) WITH 12 .3 ACRES OF SHEA PROPERTIES d .b.a. CENTRAL PARK AT HIGHLANDS RANCH, LLC. WHEREAS, the Englewood McLellan Reservoir Foundation was formed to oversee the development of the McLellan Reservoir property; and WHEREAS, the Englewood City Council passed Ordinance No. 41, Series of2014 submitting to a vote of the registered electors of the City of Englewood a question to exchange Utility Department property held in Douglas County for property of similar or greater value; and WHEREAS, on November 4, 2014 the registered electors approved a Ballot Question to allow the exchange of Utility property owned in Douglas County for property of similar or greater value to promote development opportunities that will generate long term revenue for the public; and WHEREAS, Shea Properties d.b.a. Central Park at Highlands Ranch, LLC. owns underdeveloped property to the North and East which abuts the Utility property; and WHEREAS, the exchange of the Utility property with the Shea Properties d.b.a. Central Park at Highlands Ranch, LLC. will facilitate development of all the Utility property in PA 81, realizing a revenue stream to the City of Englewood in the average amount of $460,000 per year for 20 years, with annual inflationary adjustments, of 2% per year over 20 years resulting in 9.2 million dollars to the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. The City Council of the City of Englewood, Colorado, hereby supports the Englewood McClellan Reservoir Foundation exchange of 12.3 acres of property for 12.3 acres of property owned by Shea Properties d.b.a. Central Highlands Ranch, LLC., attached hereto as Exhibit A. ADOPTED AND APPROVED this 14th day of March, 2016. I, Loucrishia A. Ellis, City Clerk for the City of Englewood, Colorado, hereby certify the above is a true copy of Resolution No.~ Series of2016 • • • TO : FROM: DATE: REGARDING: ~ MRF Property Exchange 12.3 Acres with S A/ Central Park Highlands Ranch, LLC. passed by Resolution on March 14, 2015 Lou, Please find attached 1 original of the Exchange Agreement which requires the Tom Brennan's signature as President ofEMRF. Once the Mayor has signed the Resolution take a copy of the signed Resolution to Tom for his signature to be affixed to the Exchange Agreement. Then the signed resolution and the signed Exchange Agreement need to come back to me for further processing by Mike Miller, Esq. for the City. Mike Miller is in charge of getting all the documents signed by the Parties. . Once Mike has completed the transaction Mike will get an original Exchange Agreement to Lou Ellis for the City 's records . Tom, Lou will bring you a signed resolution and the original Exchange Agreement for you to sign. Once you have signed the Exchange Agreement bring a copy of the signed Resolution and the original Exchange Agreement to me to get back to Mike Miller for further processing. Tom make sure Mike Miller records this with Douglas County and gets the recording information back to Lou with the original Exchange Agreement. I also need a copy of the final recorded document, you will need a copy also for your records. Thank you. Nancy Fritz CC: Tom Brennan • • • EXCHANGE AGREEMENT This Exchange Agreement (this "Agreement'') is made as of the "Effective Date," as hereinafter defined, by and between CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company ("Shea"), whose address is 6380 South Fiddlers Green Circle, Suite 400, Greenwood Village, Colorado 80111, and ENGLEWOOD/MCLELLAN RESERVOIR. FOUNDATION, a Colorado nonprofit corporation ("Englewood"), whose address is 1000 Englewood Parkway, Englewood, Colorado 80110. RECITALS WHEREAS, the "Current Shea Property" shall mean that certain real property located in Douglas County, Colorado which is more particularly described as the "Current Shea Property'' in Exhibit A attached hereto and made a part hereof; WHEREAS, the "Current Englewood Property" shall mean that certain real property located in Douglas County, Colorado which is more particularly described as the "Current Englewood Property'' in Exhibit A attached hereto (the Current Shea Property and the Current Englewood Property may be referred to herein collectively as the "Current Properties" and individually as a "Current Property"); WHEREAS, Shea and Englewood have agreed that it is in their mutual best interests that the Current Shea :t>roperty and the Current Englewood Property be developed in a coordinated manner in order to maximize the value of each such Current Property; WHEREAS, for such coordinated development to occur, Shea and Englewood have agreed that the following general matters will need to occur: (1) Douglas County will need to approve a subdivision replat of the Current Shea Property and the Current Englewood Property to reflect the parties' development plan therefor; and (2) Shea shall convey to Englewood a portion of the Current Shea Property, defined below as the "Shea Exchange Property," in exchange for the conveyance by Englewood to Shea of a portion of the Current Englewood Property, defined below as the "Englewood Exchange Property," resulting in Shea owning the "Adjusted Shea Property'' and Englewood owning the "Adjusted Englewood Property," as those terms are defined below ( collectively, the "Exchange Transaction"); WHEREAS, in the November 4, 2014 General Election, the voters of the City of Englewood approved City of Englewood Referred Ballot Question No. 2E, which authorized the Englewood City Council ''by Ordinance, to exchange Utility property owned in Douglas County for property of similar or greater value to promote development opportunities that will generate long-term revenue for the public." AND WHEREAS, Shea and Englewood enter into this Agreement to set forth their agreements regarding the Exchange Transaction . Shea BICP EXAG-verl4 (52628-0265).DOCX -1 - March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) I! X H' I B I T A . ' • • • AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Shea and Englewood enter into this Agreement effective as of the later of the date upon which Shea shall have executed this Agreement, or the date upon which Englewood shall have executed this Agreement, in each case as set forth at the end of this Agreement immediately below the respective party's execution hereof (the "Effective Date"), and agree as follows: 1. Inspections. During the period commencing on the Effective Date and expiring on the earlier of the date which is 30 days after the Effective Date or the date upon which Douglas County shall, if at all, have given the "Replat Approval," as hereinafter defined (the "Inspection Period"), each of Shea and Englewood shall have the right, at its expense, to conduct such due diligence inspections of the other party's Current Property as it may desire, including, without limitation, obtaining a title commitment from Fidelity National Title Insurance Company ("Title Company") for, and reviewing the status of title to, the Current Properties, and performing such surveys, studies, environmental investigations, soil studies and other inspections as each party may determine . Additionally, Shea shall have the right to inspect any wildlife which may be on the Current Properties and to mitigate those of such wildlife which are recognized as a nuisance, which mitigation shall include ifreasonably necessary, without limitation, light grading of the Current Properties after such removal or extermination to protect horses or cattle from stumbling into the holes and depressions in the Current Properties. If any exceptions to title shown in a title commitment delivered to a party for the other party's Current Property are not satisfactory to such party, such party may, during the Inspection Period, give written notice of objection to any such exception and the parties shall in good faith endeavor to either cure such objection or otherwise resolve such objection to the satisfaction of both parties; provided, however, that neither party shall be obligated to cure or resolve any such objection to title and neither party shall object to any exception to title affecting the other party's Current Property unless such exception would materially and adversely affect the marketability of such Current Property or the development or use thereof as contemplated by this Agreement. In any case, if a party is not satisfied with the status of title to the other party's Current Property and the parties are unable to cure or resolve the objections thereto by the expiration of the Inspection Period, such party shall have the right to terminate this Agreement as provided hereinafter in this Section. The exceptions to title to a respective Current Property shown in the last title commitment delivered to the parties during the Inspection Period shall be referred to herein as the "Permitted Exceptions" for such Current Property. Each party has the right to enter upon the Current Property owned by the Other Party during the Inspection Period and thereafter until this Agreement may, if at all, be terminated, for the purpose of performing such inspections, provided that no such inspections shall result in any damage to such Current Property ( except as may otherwise be permitted pursuant to Shea's right to mitigate certain wildlife on the Current Properties as provided above), and the inspecting party shall, at its expense, repair any such prohibited damage. Each of Shea and Englewood agrees to indemnify, defend and hold the other party and its CmTent Property harmless from and against any and all obligations, liabilities, claims, demands, liens (including, without limitation, mechanics' liens), loss, damage, cost or causes of action whatsoever in any way due to or arising out of or related to the activities of such indemnifying party on such Current Property or pursuant to such inspections. Additionally each • of Shea and Englewood assumes any risk involved in connection with such inspections, and Shea BICP EXAG-ver14 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-ver14 (52628 -0265) -2 - releases and discharges the other party from any liability for loss, damage or injury incurred by the inspecting party arising out of such inspecting party's entry or presence upon such Current Property or such party's inspections, unless due to the gross negligence or willful misconduct of the other party. Shea and Englewood acknowledge and agree that, except as is otherwise expressly provided for elsewhere in this Agreement, neither party has made any representations, warranties or agreements to or on behalf of the other party as to any matter concerning the Current Properties, the present use thereof or the suitability for the other party's intended use of the respective Exchange Property to be acquired by such party at the Exchange Closing. If either party is dissatisfied with any matter pertaining to the other party's Current Property, such party, in its sole and absolute discretion, shall have the right to terminate this Agreement by giving written notice of termination to the other party on or before the last day of the Inspection Period, in which case this Agreement shall terminate and both parties shall be relieved of all further obligations hereunder; provided, however, each party shall remain liable to the other party following any termination of this Agreement for any obligations which survive any termination of this Agreement. The obligations of each party under this Section shall survive the Exchange Closing and any termination of this Agreement. 2. Replat. The "Replat" shall mean a subdivision replat of the Current Properties that: (a) shall divide the Current Properties into lots, a private street tract (the "Private Street") and other tracts generally in accordance with the draft of the Replat attached hereto as Exhibit B and incorporated by reference herein (the "Draft Replat"), together with any modifications thereto as may be approved by Shea and Englewood from time to time; (b) shall provide that a portion of the Current Shea Property (the "Shea Exchange Property") shall be combined with a portion of the Current Englewood Property to form one of such Lots, which is shown on the Draft Replat as Lot 4 and which shall contain approximately 33.283 acres (the "Adjusted Englewood Property''); (c) shall provide that a portion of the Current Englewood Property (the "Englewood Exchange Property") shall be combined with a portion of the Current Shea Property to form three separate Lots which are shown on the Draft Replat as Lot 1, Lot 2 and Lot 3 and which shall contain a total of approximately 29.083 acres (the "Adjusted Shea Property") (the Adjusted Shea Property and the Adjusted Englewood Property may be referred to herein collectively as the "Adjusted Properties" and individually as an "Adjusted Property"); (d) shall provide for a tract containing approximately 2.949 acres, which is shown on the Draft Replat as Tract A (the "Park Property"), which shall be conveyed and dedicated by Shea and Englewood to the Highlands Ranch Metropolitan District (the "Metro District") or, at Shea's option, to another governmental or quasi-governmental entity or property owners' association (including, without limitation, Highlands Ranch Business Park, Inc., a Colorado nonprofit corporation [the "Business Park Association"]), selected by Shea that shall have authority to own, operate and maintain the Park Property, either on the Replat or by separate document executed and recorded simultaneously with the granting of the Replat Approval (the "Park Deed"); provided, however, that if the Property is to be so conveyed to the Business Park Association, the Park Deed shall include provisions, reasonably acceptable to Shea and Douglas County, by which Shea shall reserve an easement for the purpose of the construction, installation, use, operation, maintenance, repair and replacement of a telecommunications tower and related foundation, utilities and other facilities, and related telecommunications equipment and facilities, together with the right to grant to others the right to use such easement (the "Tower Easement Provisions"); and (e) shall provide that title to the Private Street shown on the Replat shall be conveyed by Shea and Englewood to Highlands Ranch Business Park, Inc., a Shea BICP EXAG-verl4 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) -3 - • • • • • • Colorado nonprofit corporation or, at Shea's option, to a governmental or quasi-governmental entity or another property owners' association selected by Shea that shall have authority to own, operate and maintain the Private Street, by a deed executed by Shea and Englewood and the grantee thereunder (the "Private Street Deed"). If the Private Street shall be so conveyed to the Business Park Association, then the form of the Private Street Deed shall be in the form of the deed attached hereto as Exhibit C and incorporated by reference herein. If the Park Property and the Private Street shall both be so conveyed to the Business Park Association, then the Park Property shall also be included in the Private Street Deed, which shall be modified to include the conveyance of the Park Property and the Tower Easement Provisions. If either the Private Street or the Park Property, or both, shall be so conveyed to a party or entity other than the Business Park Association, then the form deed by which either the Private Street or the Park Property shall . be conveyed shall be substantially in the form of the deed attached hereto as Exhibit C, but with reasonable and appropriate modifications thereto to reflect the different grantee thereunder, that the respective property conveyed thereunder may not be annexed to the "Community Declaration" or the "Business Park Declaration," as those terms are defined in the deed attached hereto as Exhibit C, and such other modifications as may reasonably be appropriate. Additionally, if either the Private Street or the Park Property is to be so conveyed to the Business Park Association, then the respective property shall be annexed to the Community Declaration and the Business Park Declaration by the execution by Shea and Englewood, and recordation, of the form of Supplemental Declaration that is attached hereto as Exhibit D and incorporated by reference herein (the "Supplemental Declaration"), which shall be recorded prior to the recordation of the Park Deed and the Private Street Deed. If the Exchange Closing under this Agreement occurs, in no event shall Englewood be obligated to construct any improvements upon, or to maintain, repair or replace, the Park Property or the Private Street or any such improvements, or to pay for any of the costs for any such construction, maintenance, repair or replacement of the Park Property or the Private Street or any improvements thereon, and Shea agrees to indemnify and hold Englewood harmless from all such obligations and costs; proyided, however, that nothing in this sentence shall preclude the tenant under the Ground Lease or under any other lease of any portion of the Adjusted Englewood Property from being obligated to pay any of such costs, including, without limitation, assessments payable to the Business Park Association, to pay for the costs to maintain, repair and replace the Private Street, so long as the owner of fee simple title to the Adjusted Englewood Property (including Englewood at such times as it constitutes such owner) is not obligated to pay any of such costs. 3. Replat Approval. Promptly after the Effective Date, Shea and Englewood shall jointly submit the Draft Replat to Douglas County for its review and approval (the "Replat Approval"). Shea and Englewood have previously reviewed and approved the Draft Replat, and no modifications to the same shall be made or agreed to by a party without the written consent of tl1e other party, which consent shall not unreasonably be withheld, delayed or conditioned. If the Replat Approval is obtained, Shea and Englewood shall execute the Replat, provided such Replat shall not be recorded or become effective until the Exchange Closing (as hereinafter defined). In any case, however, if the Replat Approval has not been obtained by the date which is six months after the Effective Date (the "Douglas County Approval Deadline"), then this Agreement shall automatically terminate and both parties shall be relieved of all further obligations hereunder, except for any obligations under this Agreement that expressly survive a termination of this Agreement. Shea and Englewood shall jointly execute any subdivision improvements agreement required by Douglas County to be executed in connection with the Replat Approval (the "SIA"). Shea BICP EXAG-verl4 (52628-0265).DOCX • 4 · March 8, 2016 Shea BICP EXAG-ver14 (52628-0265) Shea shall pay 100%. of the costs to construct all of the improvements required to be constructed pursuant to the SIA, whether the same are required to be constructed in the Private Street, on the Park Property or any other Tract created on the Replat, or on either of the Adjusted Englewood Property or the Adjusted Shea Property. Shea shall also assume any other obligations of the developer under the SIA. 4. Shea's Contingencies. The "Ground Lease" shall mean that certain Ground Lease with an effective date the same as the Effective Date under this Agreement by and between Shea and Englewood, whereby Englewood, as Landlord, has agreed to lease the Adjusted Englewood Property to Shea, as Tenant, in accordance with the terms and conditions provided therein. The obligation of Shea to close the Exchange Transaction at the Exchange Closing is also expressly subject to the conditions that, as of the Exchange Closing: (a) the Ground Lease shall be in full force and effect in accordance with its terms and conditions; (b) the contingencies to the Tenant's obligations under the Ground Lease contained in Articles 3.5 and 3.6 of the Ground Lease, have either been satisfied, or by completion of the Exchange Closing will have been satisfied, or have expressly been waived in writing by Shea; and (c) Englewood, as the Landlord under the Ground Lease, and pursuant to Article 7.2.A of the Ground Lease, shall have acknowledged that the party (the "Prospective Ground Lease Assignee") to which Shea proposes to assign its rights as the Tenant under the Ground Lease constitutes a "Qualified Assignee," as defined in the Ground Lease, Englewood shall have approved the form of the document pursuant to which the Prospective Ground Lease Assignee assumes all of the obligations of Shea as the Tenant under the Ground Lease (the "Ground Lease Assignment and Assumption Agreement"), and simultaneously with the Exchange Closing, each of Shea and the Prospective Ground Lease Assignee shall have executed and delivered the Ground Lease Assignment and Assumption Agreement. If any of the foregoing contingencies to close the Exchange Transaction at the Exchange Closing have not been satisfied as of the date of the Exchange Closing, then Shea shall have the right, at its option and by written notice from Shea to Englewood given by no later than such date, either to waive such contingency and close at the Exchange Closing in accordance with this Agreement, or to terminate this Agreement, in which case each of Shea and Englewood shall be relieved of all further obligations under this Agreement, other than any obligations under this Agreement that expressly survive a termination of this Agreement. 5. Englewood's Contingencies. The obligation of Englewood to close the Exchange Transaction at the Exchange Closing is also expressly subject to the conditions that, as of the Exchange Closing: (a) the Ground Lease shall be in full force and effect in accordance with its terms and conditions; and (b) the contingencies to the Landlord's obligations under the Ground Lease contained in Article 3.6 of the Ground Lease have either been satisfied, or by completion of the Exchange Closing will have been satisfied, or have expressly been waived in writing. If either of the foregoing contingencies to close the Exchange Transaction at the Exchange Closing have not been satisfied as of the date of the Exchange Closing, then Englewood shall have the right, at its option and by written notice from Englewood to Shea given by no later than such date, either to waive such contingency and close at the Exchange Closing in accordance with this Agreement, or to terminate this Agreement, in which case each of Shea and Englewood shall be relieved of all further obligations under this Agreement, other than any obligations under this Agreement that expressly survive a termination of this Agreement. Shea BICP EXAG-verl4 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) -5 - ·• • • • • • 6. Exchange Closing .. If the Replat Approval has been obtained, then at a closing (the "Exchange Closing") to be held on the first business day which is at least 10 days after the date upon which the Replat Approval has been obtained, or such earlier date as the parties may agree or as may be required by Douglas County as a condition to its granting of the Rep lat Approval: (a) Shea shall execute and deliver and cause to be recorded a special warranty deed by which Shea shall convey to Englewood all of Shea's title in and to the Shea Exchange Property, and a quit claim deed by which Shea shall convey to Englewood the Adjusted Englewood Property; (b) Englewood shall execute, deliver and cause to be recorded a special warranty deed by which Englewood shall convey to Shea all of Englewood's title in and to the Englewood Exchange Property, and a quit claim deed by which Englewood shall convey to Shea the Adjusted Shea Property; ( c) Shea and Englewood shall execute and cause to be recorded the Private Street Deed and the Park Deed, in the forms as provided above, and if either the Private Street or the Park Property is to be conveyed to the Business Park Association, Shea and Englewood shall also execute the Supplemental Declaration and cause the same to be recorded; ( d) real property taxes and assessments for each Adjusted Property for the year of the Exchange Closing shall be prorated based on the then most recently available amount of real property taxes and assessments with respect to the Adjusted Property, and all other appropriate expenses for each respective Adjusted Property shall also be prorated, and such prorations shall be final; ( e) each of Shea and Englewood shall have the right to obtain, at its expense, an owner's policy oftitle insurance for the respective Adjusted Property to be acquired by it; (f) each party shall bear all of its own expenses for the Exchange Closing, including, without limitation, recording and documentary fees; (g) title to each Adjusted Property shall be free and clear of all liens and encumbrances, and shall be subject to only the Permitted Exceptions for such Adjusted Property; and (h) the parties shall execute all other instruments and documents as may be customary in Douglas County, Colorado or as may be required by the Title Company in connection with its issuance of any such owner's policy of title insurance. The parties agree that the Englewood Exchange Property to be so conveyed by Englewood to Shea, and the Shea Exchange Property to be so conveyed by Shea to Englewood, are of the same size and of equal value and therefore neither party shall be required to pay any monetary consideration to the other party for the conveyance of the same. Shea and Englewood agree that each party shall take the respective Exchange Property to be acquired by it at the Exchange Closing in its then current "as-is" condition and that, except as is otherwise provided in Section 3, neither party shall have any obligation under this Agreement to make or pay for any improvements to be constructed on or in connection with the respective Adjusted Property to be owned by the other party from and after the Exchange Closing. 7. Inclusion in Highlands Ranch Metropolitan District. By no later than 120 days after the Exchange Closing, Shea agrees to cause the Adjusted Shea Property, and Englewood agrees to cause the Adjusted Englewood Property, to be included within the boundaries of the Highlands Ranch Metropolitan District, including, without limitation, by executing such reasonable documents as may reasonably be necessary to effect such inclusions. Shea and Englewood further agree reasonably to cooperate with each other as may reasonably be necessary to effect such inclusions. 8. Default. An "Event of Default" by a defaulting party under this Agreement shall be deemed to have occurred if such defaulting party shall have defaulted in the perfonnance of, or failed to comply with, any of its obligations under this Agreement, and such party shall have failed to cure such default or failure to comply within 30 days after the non-defaulting party has Shea BICP EXAG-verl4 (52628-0265).DOCX -6 - March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) given written notice .to the defaulting party of such default or failure to comply .. Upon the occurrence of an Event of Default by a party under this Agreement, the non-defaulting party shall be entitled to any and all remedies available at law or in equity as a result of such Event of Default. 9. Assignability. Neither Shea nor Englewood shall have the right to assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not unreasonably be withheld, delayed or conditioned. Notwithstanding the foregoing, however, Shea shall have the right to assign its rights under this Agreement, in whole or in part, without obtaining the consent of Englewood, to a "Shea Related Entity," as hereinafter defined, provided that (a) Shea gives written notice to Englewood of such assignment at least 10 days prior to the effective date of such assignment, accompanied by reasonable written evidence that the assignee is a Shea Related Entity, and (b) the assignee agrees in a written instrument delivered to, and enforceable by, Englewood to assume the respective obligations of Shea under this Agreement corresponding to the rights so assigned. A "Shea Related Entity" shall mean either (i) any entity directly or indirectly owned or controlled by John Shea or Peter Shea or the children or grandchildren of John Shea, Peter Shea or the late Edmund Shea, the members of their respective families, or trusts for any of their benefit, or (ii) any entity directly or indirectly controlling, controlled by or under common control with any of J. F. Shea Co., Inc., Shea Properties LLC or Shea Homes Limited Partnership. Upon the execution by any such assignee of Shea of a document whereby the assignee assumes all or certain of Shea's obligations hereunder, the party who theretofore constituted Shea hereunder shall be relieved of the obligations hereunder which have been so assumed by such assignee, and Englewood shall accept performance of such obligations by the assignee. 10. Notices. All notices, consents or other instruments or communications provided for under this Agreement shall be in writing, signed by the party giving the same, sent by personal delivery, reputable overnight courier service which keeps receipts of deliveries (i.e., Federal Express), United States certified mail (return receipt requested with postage fully prepaid) or express mail service, or by facsimile which includes a confirmation of delivery, addressed to the other party as follows: Ifto Shea: With copies to: Shea BICP EXAG-ver14 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-ver14 (52628-0265) Central Park at Highlands Ranch, LLC 6380 South Fiddlers Green Circle Suite 400 Greenwood Village, CO 80111 Attention: John Kilrow Facsimile No. (303) 740-6954 Shea Homes Limited Partnership 1805 Shea Center Drive, Suite 450 Highlands Ranch, CO 80219 Attention: Jeffrey H. Donelson, Esq. Facsimile No. (303) 791-8558 -7 - • • • • • • And to:. If to Englewood: With copies to: And copies to: Dennett L. Hutchinsonj Jr . Holland & Hart LLP 6380 S. Fiddlers Green Circle, Suite 500 Greenwood Village, CO 80111 Facsimile No. (303) 713-6241 Englewood/McLellan Reservoir Foundation 1000 Englewood Parkway Englewood, Colorado 80110 Attention: President Facsimile No. ----- Berenbaum Weinshienk PC 3 70 1 ih Street, 48 th Floor Denver, Colorado 80202 Attention: H. Michael Miller, Esq. Facsimile No. 303 629-7610 City of Englewood 1000 Englewood Parkway Englewood, Colorado 80110 Attention: City Attorney Facsimile No. (303) 783-6892 or at such other address or facsimile number as may be specified from time to time in writing by either Party. All such notices hereunder shall be deemed properly given and received on the earlier of when actually delivered and received (including, without limitation, if delivered and received by facsimile) , or three business days after mailed, if sent by registered or certified mail, postage prepaid. 11. Recitals Incorporated. The Recitals contained above in this Agreement are expressly made a part of this Agreement and constitute a part of the agreement of the parties expressed in this Agreement. 12. Entire Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, and all prior agreements or understandings shall be deemed merged in this Agreement. 13. No Oral Amendment or Modifications. No amendments, waivers or modifications hereof shall be made or deemed to have been made unless in writing executed by the party to be bound thereby. 14 . Binding Effect. Subject to the Section of this Agreement entitled "Assignability," this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns . Shea BICP EXAG-verl4 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) -8 - 15. Applicable Law, This Agreement shall be interpreted and enforced accord_ipg to the laws of the State of Colorado. 16. No Brokers. Each party warrants and certifies to the other party that such party has not engaged or utilized the services of a broker in connection with this Agreement or the transaction contemplated hereby. Each party agrees to defend, indemnify and hold harmless the other from and against any claim for broker's or finder's fees or commissions made by any party claiming to have dealt with it in connection with this Agreement or the transaction contemplated hereby. The obligations of each party under this Section shall survive the Exchange Closing and any termination of this Agreement. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which, when taken together, shall constitute but one agreement. 18. Costs of Legal Proceedings. In the event that either party institutes legal proceedings with respect to this Agreement or the transaction contemplated hereby, including, but not limited to, appearing and participating in any action initiated by or against the other party under the bankruptcy laws of the United States or similar laws of any state, the prevailing party shall ( or in the case of such a bankruptcy action by a party, the other party shall) be awarded, in addition to any other relief to which it is entitled, its costs and expenses incurred in connection with such legal proceedings, including, without limitation, reasonable attorneys' fees. The obligations of each party under this Section shall survive the Exchange Closing and any termination of this Agreement. 19. Computation of Time. In computing any period of time under this Agreement, the date of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or federal or Colorado legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or federal or Colorado legal holiday. 20. Authority. Each of Shea and Englewood represents and warrants to the other party that this Agreement constitutes a legal, valid and binding obligation of the representing party and (together with all documents contemplated hereby when executed and delivered) is enforceable against the representing party in accordance with its terms (as such enforceability may be modified by applicable bankruptcy laws and the laws applicable to creditors rights generally), and that the individuals executing this Agreement and the documents contemplated by this Agreement on its behalf are duly elected or appointed and validly authorized to execute and deliver the same. 21 . Survival. Each provision of this Agreement that is required to be perfonned or observed after the Exchange Closing shall survive and remain enforceable after the Exchange Closing. Shen BICP EXAG-verl4 (52628-0265).DOCX -9 - March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) • • • • • SIGNATURE PAGE FOR EXCHANGE AGREEMENT BETWEEN CENTRAL PARK AT HIGHLANDS RANCH, LLC AND ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the Effective Date. SHEA: CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company By: Date Executed: March.!1-, 2016 ENGLEWOOD: ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation By: ____________ _ Name: ---------------Tit 1 e: --------------- Date Executed: March_, 2016 Shea BICP EXAG-verl4 (52628-0265).DOCX -10 - March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) EXHIBIT A. ... TO EXCHANGE AGREEMENT Legal Description of Current Shea Property Lot 1 and Tract A, Highlands Ranch Filing No. 144, County of Douglas, State of Colorado Lot 1, Highlands Ranch Filing No. 147, County of Douglas, State of Colorado Legal Description of Current Englewood Property Lots 1, 2 and 3, Highlands Ranch Filing No. 156, County of Douglas, State of Colorado. Shea BICP EXAG-ver14 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-ver\4 (52628-0265) A-1 • • •• • • __ EXI-lIBIT...B _ ...... . TO EXCHANGE AGREEMENT Copy of Draft Replat-See Separate Document Attached Shea BICP EXAG-ver14 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-verl4 (52628-0265) B-1 HIGHLANDS RANCH FILING NO. 156, 1ST AMENDMENT REPLAT OF LOT 1 AND TRACT A, HIGHLANDS RANCH FILING NO. 144, LOT 1, HIGHLANDS RANCH FILING NO. 147, AND LOTS 1-3, HIGHLANDS RANCH FILING NO. 156, LOCATED IN THE SOUTHEAST QUARTER OF SECTION 4, AND THE NORTHEAST QUARTER OF SECTION 9, TOWNSHIP 6 SOUTH, RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN, I f9N Rf$F81Plt9H LOT I IIHO aACJ 4. 111C:HLANOS IIMolCH. f1UHC /Hl. IU "5 AECOAOEO UN00t lt(C(PTIDH NO. 000120'4 Of" 1HE ACCORDS OT ~ OOllQ.AS all'"TY aDlf( NIIJ ACCOflOOl"S orncc. LOCATCO IN 1HC swnos, OUAIID or :-c~OMtSNP II IOUltt. NNICX N IIIUil Cl# 1Nt. SIXIH t'ftWCIPM. IEID,UI. CIUIIIY CIF OUG.AS. stUt LOl 1. r«::M.itHCIS IIMKK, f"ILNC ,.o, 147 AS "lcmtPW UNDCJI IIECD'1ION NO. 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EXHIBITC TO EXCHANGE AGREEMENT Form of Private Street Deed-See Separate Document Attached Shea BICP EXAG-ver14 (52628-0265).DOCX March 8, 2016 Shea BICP EXAG-ver14 (52628-0265) C-1 • • • • • • SPECIAL WARRANTY DEED (Highlands Ranch Filing No. 156. 1st Amendment :--Private Street) This Special Warranty Deed (this "Deed") is dated this __ day of _______ , 201_, by and between CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company ("Shea"), whose address is 63 80 South Fiddlers Green Circle, Suite 400, Greenwood Village, Colorado 80111, and ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation ("Englewood"), whose address is 1000 Englewood Parkway, Englewood, Colorado 80110 (Shea and Englewood shall hereinafter collectively be referred to as the "Grantor"), and HIGHLANDS RANCH BUSINESS PARK, INC., a Colorado nonprofit corporation ("Grantee"), whose mailing address is 1805 Shea Center Drive, Suite 450, Highlands Ranch, Colorado 80129. WITNESSETH, that Grantor, for and in consideration of the covenants, conditions and restrictions contained herein, but without other consideration, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm unto Grantee, its successors and assigns forever, that certain real property situate, lying and being in the County of Douglas, State of Colorado that is more particularly described in Exhibit A attached hereto and incorporated by reference herein (the "Property"). A street address of the Property does not exist; TOGETHER WITH all and singular the hereditaments and appurtenances thereunto belonging, or in any way appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, claim and demand whatsoever, of Grantor, either in law or equity, of, in and to the Property. EXCEPTING AND RESERVING unto each of Shea and Englewood the "Reserved Access Easement," as hereinafter defined; SUBJECT TO the "Permitted Exceptions" which shall mean (a) the standard printed exceptions contained in the customary forms of title insurance commitments and owner's title insurance policies in use in the State of Colorado; (b) any easements, restrictions and conditions shown on the recorded plat(s) for the Property; (c) real property taxes and assessments for 20 l_ and subsequent years; ( d) building, zoning and other applicable ordinances and regulations of the County of Douglas, Colorado; (e) the reservations, exceptions, easements, rights of way, restrictive covenants, conditions and other matters ofrecord; (f) taxes, assessments, fees or charges, if any, assessed by any applicable taxing entity; (g) the covenants, conditions, restrictions and easements hereinafter reserved or set forth in this Deed; (h) the "Community Declaration," as hereinafter defined; (i) the "Business Park Declaration," as hereinafter defined; and U) the "Supplemental Declaration," as hereinafter defined . Shea BICP PSD-ver2 (52628-0265) (4).DOC March 2, 2016 Shea BICP PSD-ver2 (52628-0265) TO HAVE AND .TO HOLD the Property with the appurtenances, unto Grantee, · its successors and assigns forever. AND SHEA, for itself, its successors and assigns, covenants and agrees to and with Grantee, its successors and assigns, to warrant and defend the quiet and peaceable possession of that portion of the Property described as the "Shea Property" on Exhibit B attached hereto and incorporated by reference herein (the "Shea Property") by Grantee, its successors and assigns, against every person who lawfully claims the Shea Property or any part thereof, by, through or under Shea, subject to the Permitted Exceptions, and the covenants, conditions and restrictions herein contained; AND ENGLEWOOD, for itself, its successors and assigns, covenants and agrees to and with Grantee, its successors and assigns, to warrant and defend the quiet and peaceable possession of that portion of the Property described as the "Englewood Property" in Exhibit C attached hereto and incorporated by reference herein (the "Englewood Property") by Grantee, its successors and assigns, against every person who lawfully claims the Englewood Property or any part thereof, by, through or under Englewood, subject to the Permitted Exceptions, and the covenants, conditions and restrictions herein contained. I. SHEA'S EASEMENTS. 1.1. Access Easements. "Access Easements" shall mean easements reasonable and necessary for access to and from the Annexable Area and any other property now or hereafter owned by Shea or any "Shea Related Entity," as hereinafter defined. · 1.2. Utility Easements. "Utility Easements" shall mean easements for installation, construction, operation, maintenance, repair and replacement of underground lines and facilities and surface-mounted equipment and appurtenances for utility purposes, including, but not limited to, water, sewer, gas, electricity, telephone and cable television service to serve the Annexable Area and any other property now or hereafter owned by Shea or any Shea Related Entity. 1.3. Drainage Easements. "Drainage Easements" shall mean easements for drainage and for installation, construction, operation, maintenance, repair and replacement of gutters, culverts, underground lines, and other facilities for drainage purposes to serve the Annexable Area and any other property now or hereafter owned by Shea or any Shea Related Entity. 1.4. Annexable Area. "Annexable Area" shall mean all of the real property described on Exhibit B attached to the Community Declaration. 1.5. Shea Related Entity. A "Shea Related Entity" shall mean either (a) any entity directly or indirectly owned or controlled by John Shea or Peter Shea or the children or grandchildren of John Shea, Peter Shea or the late Edmund Shea, the Shea BICP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628-0265) -2- • • • • • • . members of their respective families 1 or trusts for any of their benefit, or (b) any entity directly or indirectly controlling, controlled by or under common control with any of J. F. Shea Co., Inc., Shea Properties LLC or Shea Homes Limited Partnership. 1.6. Granting of Easements. For a period of twenty (20) years subsequent to the date hereof, Grantee agrees that it will grant Shea or a Shea Related Entity, its successors, assigns and designees, Access Easements, Utility Easements and Drainage Easements (together, "Easements") within the Property, to the extent that any facilities or improvements planned for installation within the Easements (the "Improvements") do not unreasonably interfere with any existing or then-planned facilities or improvements within the Property. For purposes of this paragraph, "then-planned facilities or improvements" shall mean any facilities or improvements of Grantee which are not yet constructed but have been provided for within Grantee's current facilities budget. Shea or the respective Shea Related Entity shall submit plans for any proposed Improvements ("Shea's Plans") to Grantee no less than nine (9) weeks prior to the commencement of construction, and Grantee shall have six (6) weeks from receipt of Shea's Plans to review and approve them or to notify Shea or the respective Shea Related Entity in writing of Grantee's objections thereto. Grantee's failure to notify Shea or the respective Shea Related Entity of its objections in writing within six (6) weeks of Grantee's receipt of Shea's Plans shall be deemed an approval of Shea's Plans and the Improvements. II . RESTRICTIONS. RESERVATIONS AND ANNEXATIONS. 2.1. Community Declaration. "Community Declaration" shall mean the Community Declaration for Highlands Ranch Community Association, Inc., dated September I, 1981, and recorded September 17, 1981 in Book 421 at Page 924 of the records in the office of the Clerk and Recorder of Douglas County, Colorado ("Douglas County Records"), as the same has been, and hereafter may be, amended from time to tiine. 2.2. Business Park Declaration. "Business Park Declaration" shall mean, collectively, the Subassociation Declaration for Highlands Ranch Business Park, Inc. of Highlands Ranch Community Association, Inc. dated February 14, 1989, recorded February 21, 1989 in Book 841 at Page 1115 of the Douglas County Records, as amended by the Amendment of Subassociation Declaration for Highlands Ranch Business Park, Inc., dated June 7, 1990, recorded June 11, 1990, in Book 916 at Page 49 of the Douglas County Records. 2.3 . Supplemental Declaration. "Supplemental Declaration" shall mean that certain Supplemental Declaration for Annexed Property No. 207_ of Highlands Ranch Community Association, Inc. and Highlands Ranch Business Park, Inc ., of even date herewith and to be recorded on the same date as, but prior to, the recording of this Deed in the Douglas County Records, with respect to the Property, executed by Grantor and consented to by Shea Homes Limited Partnership, which annexes the Property to the Community Association Area under the Community Declaration and to the Business Park Shea BICP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628 -0265) -3 - Association Area under the Business Park Declaration, as is more particularly provided therein. 2.4. Designation of Property under Business Park Declaration. Pursuant to Section 2.5 of the Supplemental Declaration, the Property has been designated as a "Common Access Area" and as a part of the "Common Area" and the "Business Park Association Properties," as those terms are defined in the Business Park Declaration, under and for the purposes of the Business Park Declaration. Grantee acknowledges and agrees that, consequently, Grantee shall be obligated, and shall, own, use, occupy, maintain, alter and improve the Property, and all improvements (including, without limitation, the "Street Improvements" as defined in the Supplemental Declaration) now or hereafter located upon the Property, in accordance with the "Restrictions," as defined in the Business Park Declaration, applicable to the Common Access Areas, the Common Area and the Business Park Association Properties set forth in the Business Park Declaration and the Supplemental Declaration. 2.5. Reservation of Access Easement. The "Reserved Access Easement" shall mean a private, non-exclusive perpetual easement over and across the Property for the purpose of vehicular and pedestrian access, ingress to and egress from each of the Shea Property and the Englewood Property, and any lot or parcel within, or any other portion of, the Shea Property and the Englewood Property, to and from adjacent public streets, including, without limitation, Lucent Boulevard and Sargent Chris Falkel Drive. In addition to any access rights that may be created under the Business Park Declaration and the Supplemental Declaration over and across the Property, Shea and Englewood each hereby reserve the Reserved Access Easement, for themselves, as the Owners of the Shea Property and the Englewood Property, respectively, and their successors and assigns. The Reserved Access Easement (a) shall be for the benefit of each of the Shea Property and the Englewood Property and each lot or parcel within, or other portion of, the Shea Property and the Englewood Property, (b) may be used by the Owners of the Shea Property and the Englewood Property and each lot or parcel within, or other portion of, the Shea Property and the Englewood Property, and the Designated Users of such Owners, and ( c) shall be appurtenant to, for the benefit of, and run with title to each of the Shea Property and the Englewood Property and each lot or parcel within, or other portion of, the Shea Property and the Englewood Property. "Owner" shall mean the owner, or if more than one, all owners collectively, of fee simple title to either the Shea Property or the Englewood Property, or any lot or parcel within, or other portion of, either the Shea Property or the Englewood Property, from time to time, and its or their successors and assigns. Shea currently is the Owner of the Shea Property and Englewood currently is the Owner of the Englewood Property. The "Designated Users" of an Owner shall mean any person or party entering upon the Property with the express or implied permission of such Owner, or of any tenant of such Owner, for purposes of access to and from the Shea Property or the Englewood Prope1iy, or any p01iion thereof, including, without limitation, the employees, tenants, agents, licensees, customers and invitees of such Owner or of any tenant of such Owner. Shea BICP PSD-ver2 (52628-0265) (4).DOC March4,2016 Shea BICP PSD-ver2 (52628-0265) -4 - • • • • • • 2.6 .. Restrictions .. The Property is .. conveyed, and this conveyance accepted, subject to all of the covenants, conditions and restrictions applicable to the Property as set forth in this Deed ( collectively the "Restrictions"), which Restrictions are made for the benefit of the Shea Property and the Englewood Property. 2. 7. Remedies. Grantee acknowledges, by its acceptance of this Deed and taking possession of the Property, that a breach of or failure to comply with the Restrictions will result in irreparable harm to each Owner, not compensable by money damages. Accordingly, ifthere is a breach of or failure to comply with any such Restrictions, then each Owner, or both, artd each of their successors and assigns, shall be entitled to an injunction ordering specific performance of such Restrictions, and prohibiting any breach thereof. If court proceedings are required to enforce any of the rights under this Deed, the prevailing party shall be awarded its costs and expenses in connection therewith, including, without limitation, reasonable attorneys' fees. 2.8. Binding Effect. This Deed shall be binding upon and inure to the benefit of Grantor and Grantee and their respective successors and assigns. The Restrictions contained in this Deed shall be construed as covenants running with the Property, and every person who now or hereafter owns or acquires any right, title, estate or interest in or to the Property is and shall be conclusively deemed to have consented and to have agreed to every Restriction contained in this Deed, whether or not any reference to the Restrictions is contained in the instrument by which such person acquires an interest in the Property . [Remainder of Page Intentionally Left Blank] Shea BICP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628-0265) -5 - SIGNATURE PAGE FOR SPECIAL WARRANTY DEED BY CENTRAL PARK AT HIGHLANDS RANCH, LLC AND ENGLEWOOD MCLELLAN RESERVOIR FOUNDATION TO HIGHLANDS RANCH BUSINESS PARK, INC. (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) IN WITNESS WHEREOF, Shea, Englewood and Grantee have executed this Deed as of the day and year first above written. Shea BICP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628-0265) SHEA: CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company By: Shea Properties Management Company, Inc., a Delaware corporation, its Manager By: _____________ _ Name: -------------Title: ____________ _ By: _____________ _ Name: -------------Title: ·------------- ENGLEWOOD: ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation By: _______________ _ Name: ---------------Title: --------------- -6 - • • • • • STATE OF COLORADO ) ) ss. COUNTY OF DOUGLAS ) The foregoing instrument was acknowledged before me this __ day of ____ _, 2016, by _____________ as _________ and _______________ as ---------of Shea Properties Management Company, Inc., a Delaware corporation, as Manager of CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: _____________ _ Notary Public STATE OF COLORADO ) ) ss. COUNTY OF DOUGLAS ) The foregoing instrument was acknowledged before me this __ day of ____ _, 2016, by ____________ as ________ of ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation. Witness my hand and official seal . My commission expires: _____________ _ Shea BICP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628-0265) Notary Public -7 - STATE OF COLORADO ) ) ss COUNTY OF DOUGLAS ) . ACCEPTEDBY: HIGHLANDS RANCH BUSINESS PARK, INC., a Colorado nonprofit corporation By: _________ _ Name: ________ _ Title: ________ _ The foregoing instrument was acknowledged before me this __ day of ____ __, 2016, by ________ as _______ of Highlands Ranch Business Park, Inc., a Colorado nonprofit corporation. Witness my hand and official seal. My commission expires: _____________ _ Shea B!CP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628-0265) Notary Public -8 - • • • • • • . EXHIBIT A TO SPECIAL WARRANTY DEED (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) Legal Description of Property The private roadway and private street shown and created, and which is labeled as ____ Street and as being subject to Specific Purpose Easement "_" as more particularly provided, on the Plat for Highlands Ranch Filing No . 156, 1st Amendment, recorded _____ _, 2016, at Reception No. ______ of the Douglas County Records . Shea BICP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628 -0265) A-1 EXHIBITB TO SPECIAL WARRANTY DEED (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) Legal Description of Shea Property Lots 1, 2, and 3, Highlands Ranch Filing No. 156, 1st Amendment, County of Douglas, State of Colorado, according to the recorded plat thereof Shea BICP PSD-ver2 (52628-0265) (4).DOC March 4, 2016 Shea BICP PSD-ver2 (52628-0265) B-1 • • • • • EXHIBIT C TO SPECIAL WARRANTY DEED (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) Legal Description of Englewood Property Lot 4, Highlands Ranch Filing No. 156, 1st Amendment, County of Douglas, State of Colorado, according to the recorded plat thereof Shea BICP PSD-ver2 (52628-0265) (4).DOC March4,2016 Shea BICP PSD-ver2 (52628-0265) C-1 EXHIBITD TO ' EXCHANGE AGREEMENT Form of Supplemental Declaration -See Separate Document Attached Shea BICP EXAG-ver14 (52628-0265).DOCX Ma rch 8, 20 16 Shea BICP EXAG-verl4 (52628-0265) D-1 • • • • • • SUPPLEMENTAL DECLARATION FOR ANNEXED PROPERTY NO. 207_ OF IDGHLANDS RANCH COMMUNITY ASSOCIATION, INC . AND HIGHLANDS RANCH BUSINESS PARK, INC. (Delegate District No. 207 -Assessment Area_) (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) Shea BICP SPDCPS-verl (52628-0265) (4).DOC Feb1uary 23 , 2016 Shea BICP SPDCPS -verl (52628-0265) TABLE OF CONTENTS PREAMBLE ....................................................................................................................... 1 ARTICLE 1 DEFINITIONS ............................................................................................. 2 Section 1.1 General .................................................................................................. 2 Section 1.2 Annexed Property No. 207_ ................................................................ 2 Section 1.3 Business Park Association .................................................................... 2 Section 1.4 Business Park Association Properties ................................................... 3 Section 1.5 Community Declaration ........................................................................ 3 Section 1.6 Delegate District No. 207 ...................................................................... 3 Section 1.7 Development Guide .............................................................................. 3 Section 1.8 Related User .......................................................................................... 4 Section 1.9 Restrictions ........................................................................................... 4 Section 1.10 Review Corrunittee ................................................................................ 4 Section 1.11 Subassociation Declaration ................................................................... 4 ARTICLE 2 ANNEXATION TO COMMUNITY ASSOCIATION AREA AND BUSINESS PARK ASSOCIATION AREA ............................................... 4 Section 2.1 Section 2.2 Section 2.3 Section 2.4 Section 2.5 Section 2.6 Section 2.7 Section 2.8 Section 2.9 Section 2.10 Declaration ............................................................................................ 4 General Plan .......................................................................................... 4 Equitable Servitudes ............................................................................. 4 Restrictions Appurtenant ...................................................................... 5 Designation of Annexed Property under Subassociation Declaration .. 5 No Community Association Property ................................................... 5 Delegate District ................................................................................... 6 Subassociation ....................................................................................... 6 Annexed Property Constitutes Assessment Area .................................. 6 No Participation in Recreation Cost Center .......................................... 6 ARTICLE 3 COMMUNITY ASSOCIATION PROPERTIES AND Section 3.1 Section 3.2 Section 3.3 BUSINESS PARK.ASSOCIATION PROPERTIES ................................... 6 Business Park Association Properties ................................................... 6 Rights of Entry ...................................................................................... 6 Easements Deemed Appurtenant .......................................................... 7 ARTICLE 4 USE RESTRICTIONS ................................................................................. 7 Section 4.1 Section 4.2 General .................................................................................................. 7 Provisions in Development Guide ........................................................ 7 Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23 , 2016 Shea BICP SPDCPS-verl (52628-0265) -1 - • • • ••• • • . Section. 4.3 . . Restrictions in Community Declaration ................................................ 7 Section 4.4 Other Uses Authorized by Review Committee ..................................... 7 Section 4.5 Authority of Review Committee to Regulate Operations ..................... 8 ARTICLE 5 MISCELLANEOUS PROVISIONS ............................................................ 8 Section 5.1 Term of Supplemental Declaration ....................................................... 8 Section 5.2 Amendment of Supplemental Declaration by Members ....................... 8 Section 5.3 Withdrawal of Annexed Property ......................................................... 9 Section 5.4 Notices ...................... .-........................................................................... 9 Section 5.5 Persons Entitled to Enforce Declaration ............................................... 9 Section 5.6 Violations Constitute a Nuisance .......................................................... 9 Section 5.7 Enforcement by Self Help ..................................................................... 9 Section 5.8 Violations of Law ................................................................................ 10 Section 5.9 Remedies Cumulative ......................................................................... 10 Section 5.10 Costs and Attorneys' Fees ................................................................... 10 Section 5.11 Limitations on Liability ....................................................................... 10 Section 5.12 No Representations or Warranties ...................................................... 11 Section 5.13 Liberal Interpretation .......................................................................... 11 Section 5.14 Governing Law ................................................................................... 11 Section 5.15 Severability ......................................................................................... 11 Section 5.16 Number and Gender ............................................................................ 11 Section 5.17 Captions for Convenience ................................................................... 11 Section 5.18 Successors and Assigns ofDeclarant .................................................. 11 SCHEDULE OF EXHIBITS Exhibit A -Description of Annexed Property ................................................................ A-1 Shea BICP SPDCPS-verl (52628-0265) (4).DOC Febrnary 23, 2016 Shea BICP SPDCPS-verl (52628-0265) -ii - SUPPLEMENTAL DECLARATION FOR ANNEXED PROPERTY NO. 207_ OF HIGHLANDS RANCH COMMUNITY ASSOCIATION, INC. AND HIGHLANDS RANCH BUSINESS PARK, INC. (Delegate District No. 207 -Assessment Area_) (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) This Supplemental Declaration is made this __ day of ____ _, 2016, by CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company ("Shea"), and ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation ("Englewood") (Shea and Englewood shall hereinafter collectively be referred to as the "Current Owner"), and is consented to by SHEA HOMES LIMITED PARTNERSHIP, a California limited partnership ("Declarant"). PREAMBLE A. Declarant is the successor by merger to Mission Viejo Company, a California .• corporation ("Mission"). Mission was the Declarant under the Community Declaration for Highlands Ranch Community Association, Inc. ( defined hereinafter as the "Community Declaration") and the Subassociation Declaration for Highlands Ranch Business Park, Inc. (defined hereinafter as the "Subassociation Declaration"). Pursuant to Section 2.18 of the Community Declaration and Section 2.12 of the Subassociation Declaration, Declarant is the successor to Mission as Declarant under each of the Community Declaration and the Subassociation Declaration and as such has succeeded to all of the right, title and interest of Mission as Declarant under each of the Community Declaration and the Subassociation Declaration. B. Shea and Englewood together are the Owners of certain real property described hereinafter in this Supplemental Declaration as the Annexed Property, with Shea being the current Owner of that certain portion of the Annexed Property described in Exhibit B attached hereto (the "Shea Property"), and Englewood being the current Owner of that certain portion of the Annexed Property described in Exhibit C attached hereto (the "Englewood Property"). C. The Annexed Property described in this Supplemental Declaration is a portion of certain real property described as the Annexable Area in the Community Declaration and is a portion of certain real property described as the Business Park Annexable Area under the Subassociation Declaration. The Annexable Area under the Community Declaration is to be subdivided and improved as a planned community to be known as the Highlands Ranch in • accordance with the Community Declaration. In furtherance of the Community Declaration, the Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23, 2016 Shea BICP SPDCPS-verl (52628 -0265) -1 - • • Subassociation Declaration and the Development Guide as hereinafter defined, Current Owner and Declarant desire that the Annexed Property be improved, owned and conveyed in accordance with the terms of the Community Declaration and the Subassociation Declaration. In accordance therewith, Current Owner and Declarant desire that the Owners who own portions of the Annexed Property be subject to the provisions of the Community Declaration, the Subassociation Declaration and this Supplemental Declaration. D . Pursuant to Article III of the Community Declaration and Article IX of the Subassociation Declaration, Current Owner and Declarant desire to designate the Annexed Property as a portion of a Delegate District, as a portion of the Community Association Area under the Community Declaration, and as a portion of the Business Park Association Area under the Subassociation Declaration. Current Owner and Declarant further desire to impose certain additional covenants, conditions, restrictions and reservations on the Annexed Property, as hereinafter provided. NOW, THEREFORE IN ACCORDANCE WITH THE FOREGOING, CURRENT OWNER AND DECLARANT HEREBY DECLARE AS FOLLOWS: ARTICLE 1 DEFINITIONS Section 1.1. General. Except as the context otherwise requires and unless otherwise expressly provided herein, the capitalized terms in this Supplemental Declaration shall have the same meaning as any similarly capitalized terms defined in the Community Declaration or the Subassociation Declaration except that the words "Privately Owned Site" as used herein shall mean any Condominium or any lot or parcel ofland within the Business Park Association Area, whether or not also within the Community Association Area, which otherwise would constitute a Privately Owned Site as defined in the Community Declaration. The following words and phrases when used in this Supplemental Declaration shall have the meaning hereinafter specified. Section 1.2. Annexed Property No. 207 . "Annexed Property" shall mean the real property described in Exhibit A attached hereto and incorporated by reference herein. The Annexed Property shall be known as "Annexed Property No. 207_." The number "207" signifies that the Annexed Property is in Delegate District No. 207. The letter "_" signifies that the Annexed Property is in Assessment Area_ within said Delegate District. The Annexed Property includes all rights and easements, if any, appurtenant to the real property described in Exhibit A attached hereto. The use and enjoyment of any of such rights and easements by any person shall be subject to the terms and provisions of this Supplemental Declaration. Section 1.3. Business Park Association. ''Business Park Association" shall mean Highlands Ranch Business Park, Inc., a Colorado nonprofit corporation, its successors and assigns, which has the rights, duties and powers as set forth in the Subassociation Declaration, in the Business Park Association's Articles of Incorporation and Bylaws and herein. The Business Park Association is a "Subassociation" as defined in the Community Declaration. Shea BICP SPDCPS-verl (52628-0265) (4).DOC Febmary 23, 2016 Shea BICP SPDCPS-verl (52628 -0265) -2 - Section 1.4. Business Park Association Properties. "Business Park Association Properties" shall have the same meaning as set forth in the Subassociation Declaration, which meaning includes any property, areas or easements which may be described as Business Park Association Properties in any subdivision plat applicable to the Business Park Association Area, in this or any other Supplemental Declaration annexing additional property to the Business Park Association Area, or any amendments or supplements thereto, or in any other recorded instrument executed or consented to by Declarant; provided, however, that in any case where Declarant is, at the time a particular Business Park Association Property is so designated, not the owner of such Business Park Association Property (or, if the applicable interest in such Business Park Association Property consists of easement rights therein as opposed to fee simple title thereto, Declarant is not the holder of such easement rights), the recorded instrument in which such Business Park Association Property is designated, in order to be effective, shall (unless and to the extent that such Business Park Association Property is located within the right-of-way for a public street) also be required to be executed or consented to by the owner(s) of such Business Park Association Property ( or the holder of such easement rights, as the case may be), which such owner(s) shall have the right, in its or their sole discretion, to determine whether or not to do. Section 1.5. Community Declaration. "Community Declaration" shall mean the Community Declaration for Highlands Ranch Community Association, Inc. dated September 1, 1981, Recorded September 17, 1981, in Book 421 beginning at Page 924 of the records in the • office of the Clerk and Recorder of Douglas County, Colorado, as the same may be amended from time to time. Section 1.6. Delegate District No. 207. "Delegate District" or "Delegate District No. 207" shall mean the Annexed Property plus any other property within the Annexable Area as defined in the Community Declaration with respect to which one or more Supplemental Declarations shall be Recorded, if at all, pursuant to Section 3 .3 of the Community Declaration, declaring such portion to be a portion of Delegate District No. 207. All the property within Delegate District No. 207 shall at all times be within the Business Park Association Area under the Subassociation Declaration; however, the Business Park Association Area may at any time include property within one or more Delegate Districts and may include property not subject to the Community Declaration and therefore not within any Delegate District. The property within the Business Park Association Area which is made subject to the Community Declaration shall be within the Delegate District designated in the Supplemental Declaration annexing such property to the Community Association Area. Section 1.7. Development Guide. "Development Guide" shall mean the Planned Community District Development Guide for the New Town of Highlands Ranch as approved September 1 7, 1979, by the Board of County Commissioners of Douglas County, Colorado, Recorded October 25, 1979, in Book 373, beginning at Page 187, in the office of the Clerk and Recorder of Douglas County, Colorado, as the Development Guide exists on the date hereof. Shea BICP SPDCPS-verl (52628 -0265) (4).DOC February 23, 2016 Shea BICP SPDCPS-ver\ (52628-0265) -3 - • • • • Section 1.8.. Related User. "Related User'' shall mean guests, customers and invitees of an Owner; employees of an Owner; and occupants, tenants and contract purchasers of the Privately Owned Site of an Owner who claim by, through, or under an Owner. Section 1.9. Restrictions. "Restrictions" shall mean covenants, conditions, restrictions, limitations, reservations, exceptions and equitable servitudes affecting real property. Section 1.10. Review Committee. "Review Committee" shall mean the Review Committee established under Article VII of the Subassociation Declaration. Section 1.11. Subassociation Declaration. "Subassociation Declaration" shall mean the Subassociation Declaration for Highlands Ranch Business Park, Inc., dated February 14, 1989, recorded February 21, 1989 in Book 841 at Page 1115 of the records in the office of the Clerk and Recorder of Douglas County, Colorado, as amended by the Amendment of Subassociation Declaration for Highlands Ranch Business Park, Inc., dated June 7, 1990, recorded June 11, 1990, in Book 916 at Page 49 in the office of the Clerk and Recorder of Douglas County, Colorado, and as the same may be further amended from time to time. ARTICLE2 ANNEXATION TO COMMUNITY ASSOCIATION AREA AND BUSINESS PARK ASSOCIATION AREA Section 2.1. Declaration. Current Owner, as the present owners thereof, with the consent of Declarant as hereinafter provided, for themselves, their successors and assigns, hereby declare that the Annexed Property shall be part of the Community Association Area under the Community Declaration and the Business Park Association Area under the Subassociation Declaration, and, in accordance therewith, the Annexed Property hereby shall be subject to the Community Declaration and the Subassociation Declaration. In accordance with the foregoing, the Annexed Property, and each part thereof, shall be owned, held, transferred, conveyed, sold, leased, rented, hypothecated, encumbered, used, occupied, maintained, altered and improved subject to the Restrictions and other provisions set forth in the Community Declaration, the Subassociation Declaration and this Supplemental Declaration, for the duration thereof. Section 2.2. General Plan. This Supplemental Declaration is hereby established as a part of, pursuant to and in furtherance of a common and general plan in accordance with the Community Declaration, the Subassociation Declaration and the Development Guide for the improvement and ownership of the Annexed Property and for the purpose of enhancing and protecting the value, desirability and attractiveness of the Annexed Property. Section 2.3. Equitable Servitudes. The Restrictions set forth in the Community Declaration, the Subassociation Declaration and this Supplemental Declaration are hereby imposed as equitable servitudes upon the Annexed Property, including, without limitation, upon each Privately Owned Site and any Community Association Properties and any Business Park Association Properties within the Annexed Property, as a servient tenement, for the benefit of Shea BICP SPDCPS-verl (52628-0265) (4).DOC Februacy 23, 2016 Shea BICP SPDCPS-verl (52628-0265) -4 - each and every other Privately Owned Site, Community Association Property, Business Park • Association Property or other parcel of property within the Community Association Area and each and every property within the Business Park Association Area, as the dominant tenements. Section 2.4. Restrictions Appurtenant. The Restrictions set forth in the Community Declaration, the Subassociation Declaration and this Supplemental Declaration shall run with, inure to the benefit of, and be binding upon: (a) all of the Annexed Property; (b) each Privately Owned Site, if any, located within the Annexed Property; and (c) any Community Association Property and Business Park Association Properties located within the Annexed Property. The Restrictions set forth in the Community Declaration, the Subassociation Declaration and this Supplemental Declaration which are imposed upon the Annexed Property by this Supplemental Declaration shall inure to the benefit of: (i) the Annexed Property, (ii) Declarant and its successors and assigns, (iii) the Community Association and its successors and assigns, (iv) the Business Park Association and its successors and assigns, (v) each Member of the Community Association and any property within the Community Association Area owned by such a Member, (vi) each Member of the Business Park Association and any property within the Business Park Association Area owned by such a Member, and (vii) all Persons having or hereafter acquiring any right, title or interest in all or any portion of the Annexed Property and their heirs, personal representatives, successors and assigns. Section 2.5. Designation of Annexed Property under Subassociation Declaration. The Annexed Property is hereby designated as a Common Access Area under and for the purposes of the Subassociation Declaration. Consequently, pursuant to Section 2.9 of the Subassociation Declaration: (a) all of the lots or parcels which are provided access by the Annexed Property, including, without limitation the Shea Property and the Englewood Property, and each portion thereof, and the street improvements, including, without limitation, paving, curbs, gutters and landscaping, to be constructed thereon (the "Street Improvements") by Shea, at its expense, may be utilized for purposes of access to and from each such lot or parcel and adjacent public streets, including, without limitation, Lucent Boulevard and Sargent Chris Falkel Drive; and (b) after the initial installation of the Street Improvements by Shea, the responsibility and expense of management, operation, care, maintenance, repair and replacement of the Annexed Property, as a Common Access Area, and of the Street Improvements, shall be borne and performed by the Business Park Association in accordance with the terms and conditions set forth in the Subassociation Declaration. The Annexed Property is also hereby designated as a part of the Common Area, and as such, also constitutes a part of the Business Park Association Properties, under the Subassociation Declaration. Consequently, the Annexed Property and the Street hnprovements and all other improvements now or hereafter located thereon, shall be subject to, and shall be owned, used, occupied, maintained, altered and improved only in a manner consistent with, the Restrictions applicable to the Common Access Areas, the Common Area and the Business Park Association Properties set forth in the Subassociation Declaration. Section 2.6. No Community Association Property. No portion of the Annexed Property is or shall be Community Association Property as defined in the Community Declaration. Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23, 2016 Shea B!CP SPDCPS-verl (52628-0265) -5 - • • • • Section 2.7. Delegate District. Pursuant to Section 3.3 of the Community Declaration, the Annexed Property is hereby established as a portion of Delegate District No. 207 of the Community Association. As further provided in the Community Declaration, the Owners of Privately Owned Sites in this Delegate District shall collectively be entitled to one Delegate to the Community Association. Section 2.8. Subassociation. The Business Park Association shall constitute the Subassociation, as defined in the Community Declaration, for the Delegate District in which the Annexed Property 1s located. Section 2.9. Annexed Property Constitutes Assessment Area. The Annexed Property is hereby declared to be a separate Assessment Area under the Community Declaration and is hereby designated as Assessment Area_ within Delegate District No. 207. As provided in Section 8.28 of the Community Declaration and Section 5.5 of the Subassociation Declaration, the Common Assessments for the Annexed Property shall commence as to each Privately Owned Site, if any, in the Annexed Property as of the earlier of: ( a) the first day of the first month following the month in which the first Recordation occurs of a deed for the sale by Declarant to a Purchaser of a Privately Owned Site within the Annexed Property, or (b) as of the first day of the first month following the month in which the commencement date occurs of the lease term of a lease by Declarant to a lessee of a Privately Owned Site within the Annexed Property. Section 2.10. No Participation in Recreation Cost Center. The Owners of the Privately Owned Sites, if any, constituting the Annexed Property shall not be entitled to use, and shall not be subject to Recreation Function Common Assessments for, any Recreation Cost Center established pursuant to the Community Declaration or any Supplemental Declaration. ARTICLE 3 COMMUNITY ASSOCIATION PROPERTIES AND BUSINESS PARK ASSOCIATION PROPERTIES Section 3.1. Business Park Association Properties. The Business Park Association Properties located within the Annexed Property, if any, shall be used for the purposes provided for under the Subassociation Declaration and for such additional purposes as may from time to time be deemed reasonably necessary in the discretion of the Declarant or of the Board of Directors of the Business Park Association; provided, however, that Declarant's right to specify any such additional purpose for use of the Business Park Association Properties located within the Annexed Property shall terminate upon the expiration of the period of Declarant's Special Membership under the Subassociation Declaration. Section 3.2. Rights of Entry. In furtherance of Article I of the Subassociation Declaration, Declarant and the Business Park Association shall have, in the event of any "Emergency Situation," as hereinafter defined, threatening the Business Park Association Properties or any portion thereof, a right of entry in and upon any Improvement ( other than the interior of any building) located in the Annexed Property for the purpose of inspecting and Shea BICP SPDCPS-verl (52628-0265) (4).DOC Februa1y 23, 2016 Shea BlCP SPDCPS-verl (52628-0265) -6 - talcing whatever reasonable corrective action may be deemed reasonably necessary under the circumstances. · Section 3.3. Easements Deemed Appurtenant. The easements and rights herein granted, created and reserved shall be binding upon the Annexed Property, including, without limitation, each Privately Owned Site and any Business Association Properties in the Annexed Property and the Owner of each such Privately Owned Site or Business Park Association Properties located therein, and shall inure to the benefit of the party to whose benefit such easements and rights were granted, the Business Park Association, and Declarant. ARTICLE4 USE RESTRICTIONS Section 4.1. General. All of the Annexed Property shall be held, used and enjoyed subject to the Restrictions in the Community Declaration and the Subassociation Declaration, as well as the following Restrictions, except for the exemptions of Declarant set forth in the Community Declaration and the Subassociation Declaration, which are hereby incorporated into this Supplemental Declaration as if set forth in full herein. To the extent that any of the following Restrictions are more restrictive than any similar Restrictions in the Community Declaration or the Subassociation Declaration, the Restrictions in this Supplemental Declaration shall control. The strict application of the following Restrictions in any specific case may be •• modified or waived in whole or in part by the Review Committee, if such strict application • would be unreasonable or unduly harsh under the circumstances. Any such modification or waiver must be in writing or be contained in written guidelines or rules promulgated by the Review Committee. Section 4.2. Provisions in Development Guide. The provisions contained in the Development Guide, as the same presently exists, presently applicable to the Annexed Property shall apply to the Annexed Property. Any Restriction contained in a deed or lease from Declarant or contained in the Community Declaration, in the Subassociation Declaration or in this Supplemental Declaration which is more restrictive than any provision contained in the Development Guide shall supersede any such provision contained in the Development Guide. Section 4.3. Restrictions in Community Declaration. The Restrictions contained in the Community Declaration shall apply to the Annexed Property, including, but not limited to, the General Restrictions Applicable to Property set forth in Article IX of the Community Declaration. Section 4.4. Other Uses Authorized by Review Committee. Notwithstanding the foregoing, the Review Committee under the Subassociation Declaration may, with the prior written consent of Declarant for so long as Declarant owns property in the Annexable Area as defined in the Community Declaration, authorize any other use of the Annexed Property which is not otherwise precluded by law. Approvals and disapprovals by the Review Committee and by Declarant of specific uses not otherwise pennitted herein shall be based upon analysis of the • anticipated effect of such operations or uses upon other Privately Owned Sites in the Annexed Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23, 2016 Shea BICP SPDCPS-verl (52628-0265) -7 - • • • Property, upon other real property in the vicinity of the Annexed Property, and upon the occupants thereof, but shall be in the sole discretion of the Review Committee and of Declarant. Section 4.5. Authority of Review Committee to Regulate Operations. The Review Committee may, in its discretion, adopt reasonable regulations goyerning operations or uses on or within the Annexed Property. Such regulations may include, without limitation, reasonable restrictions on activities permitted outside of buildings and reasonable restrictions on matters which have an external effect, including, without limitation, matters which can be seen, heard or otherwise sensed or felt outside the boundaries of a Privately Owned Site. The Owner of a Privately Owned Site and any Related User shall be obligated to comply with any such regulations adopted by the Review Committee. ARTICLE 5 MISCELLANEOUS PROVISIONS Section 5.1. Term of Supplemental Declaration. Unless amended as herein provided, each provision contained in this Supplemental Declaration which is subject to the laws or rules sometimes referred to as the rule against perpetuities or the rule prohibiting unreasonable restraints on alienation shall continue and remain in full force and effect for the period of twenty-one (21) years following the death of the survivor of John Kilrow, Peter A. Culshaw, and Michael A. Brown and the now living children of said persons, or until this Supplemental Declaration is tenninated as hereinafter provided, whichever first occurs. Unless amended as herein provided, all other provisions or Restrictions contained in this Supplemental Declaration shall be effective until December 31, 2039, and, thereafter, shall be automatically extended for successive periods often (10) years each unless terminated by first obtaining the written consent of the Community Association and the Business Park Association and then obtaining the vote, by written ballot, of Members holding at least two-thirds (2/3) of the voting power of Members of the Business Park Association present in person or by proxy and voting at a duly constituted meeting of the Business Park Association. The termination of this Supplemental Declaration shall be effective upon the Recording of a certificate, executed by the President or a Vice President and the Secretary or an Assistant Secretary of the Business Park Association stating that this Supplemental Declaration has been terminated with the written consent of the Community Association and the Business Park Association and by the vote of Members as provided herein. Section 5.2. Amendment of Supplemental Declaration by Members. Except as otherwise provided in this Supplemental Declaration, any provisions or Restrictions contained in this Supplemental Declaration may be amended or repealed at any time and from time to time by first obtaining the written consent of the Community Association and the Business Park Association and then obtaining the approval of the amendment or repeal by Members holding at least two-thirds (2/3) of the voting power of the Business Park Association present in person or by proxy and voting at a duly constituted meeting of the Business Park Association and, during the Appointment Period, as defined in the Community Declaration, by also obtaining, prior to seeking approval of Members, the written consent of Declarant. The approval of any such amendment or repeal shall be evidenced by the certification by the President or a Vice President Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23, 2016 Shea BICP SPDCPS-ver\ (52628-0265) -8 - and the Secretary or an Assistant Secretary of the Business Park Association of the votes of the .• Members of the Business Park Association. The amendment or repeal shall be effective upon the Recordation in the office of the Clerk and Recorder of Douglas County, Colorado, of a certificate, executed by the President or a Vice President and the Secretary or an Assistant Secretary of the Business Park Association setting forth the amendment or repeal in full and certifying that the amendment or repeal has been approved in writing by the Community Association and the Business Park Association, approved by the appropriate Members and has been certified as set forth above and, if the amendment or repeal occurs during the Appointment Period, as defined in the Community Declaration, has been approved, in writing, by Declarant. Section 5.3. \-Vithdrawal of Annexed Property. The Annexed Property may be withdrawn from coverage of this Supplemental Declaration in accordance with the provisions of Section 3.5 of the Community Declaration and Section 9.4 of the Subassociation Declaration. Section 5.4. Notices. Any notice permitted or required to be given under this Supplemental Declaration shall be in writing and may be given either personally or by mail, telephone or telegraph. If served by mail, each notice shall be sent postage prepaid, addressed to any Person at the address given by such Person to the Community Association and the Business Park Association for the purpose of service of such notice, or to the Privately Owned Site of such Person ifno address has been given to the Community Association and the Business Park Association, and shall be deemed given, if not actually received earlier, at 5:00 p.m. on the second business day after it is deposited in a regular depository of the United States Postal • Service. Such address may be changed from time to time by notice in writing to the Community Association and the Business Park Association. Section 5.5. Persons Entitled to Enforce Declaration. The Community Association and the Business Park Association, acting by authority of their respective Boards, the Review Committee, Declarant and any Member of the Community Association or the Business Park Association shall have the right to enforce any or all of the provisions or restrictions contained in this Supplemental Declaration against any property within the Annexed Property and the Owner thereof. The right of enforcement shall include the right to bring an action for damages as well as any action to enjoin any violation of any provision of this Supplemental Declaration. Section 5.6. Violations Constitute a Nuisance. Any violation of any of the provisions or Restrictions contained in this Supplemental Declaration, whether by act or omission, is hereby declared to be a nuisance and may be enjoined or abated, whether or not the relief sought is for negative or affirmative action, by any Person entitled to enforce the provisions of this Supplemental Declaration. Section 5.7. Enforcement by Self Help. Declarant, the Review Committee, the Community Association, the Business Park Association or any authorized agent of any of them may enforce, by self help, any of the provisions, covenants, conditions, restrictions or equitable servitudes contained in this Supplemental Declaration, provided such self help is ( except in the event of an "Emergency Situation," as hereinafter defined) preceded by Notice and Hearing as • set forth in the Bylaws for the Community Association· or the Business Park Association, as the Shea BICP SPDCPS-verl (52628-0265) (4).DOC Februar; 23, 2016 Shea BICP SPDCPS-verl (52628-0265) -9 - • • • case may be. An "Emergency Situation" shall mean a situation in which prompt action is required to be taken in order to prevent or to reduce the effect of any imminent or threatened damage or harm to person or property, to preserve property or to prevent or minimize the effects of any negative impacts on surrounding property from any condition existing on the property upon which the entry is to occur. Any such self help by Declarant, the Review Committee, the Community Association, the Business Park Association or any authorized agent of any of them may include entering upon the Annexed Property and taking such actions as Declarant, the Review Committee, the Community Association, the Business Park Association or any authorized agent of any of them, as the case may be, determines are necessary or desirable to cause compliance with this Supplemental Declaration, all without liability to the Owner of the affected property and without any further notice or opportunity to cure afforded to such Owner, in which case Declarant, the Review Committee, the Community Association or the Business Park Association, as the case may be, shall be entitled to recover from such Owner, in addition to all other amounts to which Declarant, the Review Committee, the Community Association or the Business Park Association, as the case may be, shall be entitled, all costs and expenses incurred by Declarant, the Review Committee, the Community Association, the Business Park Association or any authorized agent of any of them, as the case may be, in so doing. The Community Association and the Business Park Association shall have the right to levy, or the Review Committee shall have the right to require the Community Association or the Business Park Association to levy, a Reimbursement Assessment against such Owner and his Privately Owned Site for all such costs and expenses incurred by the Community Association, the Business Park Association, the Review Committee or any authorized agent of any of them, as the case may be. Declarant hereby creates and reserves a non-exclusive easement for the benefit of each ofDeclarant, the Review Committee, the Community Association and the Business Park A'.ssociation over and across each Privately Owned Site within the Annexed Property as shall reasonably be necessary for the Declarant, the Review Committee, the Community Association or the Business Park Association, or any authorized agent of any of them, as the case may be, to exercise its rights under this Section. Section 5.8. Violations of Law. Any violation of any federal, state, municipal or local law, ordinance, rule or regulation, pertaining to the ownership, occupation or use of any property within the Annexed Property is hereby declared to be a violation of this Supplemental Declaration and shall be subject to any and all of the enforcement procedures set forth in this Supplemental Declaration. Section 5.9. Remedies Cumulative. Each remedy provided under this Supplemental Declaration is cumulative and not exclusive. Section 5.10. Costs and Attorneys' Fees. In any action or proceeding under this Supplemental Declaration, the prevailing party shall be entitled to recover its costs and expenses in connection therewith including reasonable attorneys' fees. Section 5.11. Limitations on Liability. The Community Association, the Business Park Association, their Boards of Directors, the Review Committee, Declarant and any member, Shea BICP SPDCPS-verl (52628-0265) (4).DOC F ebrua1y 23, 20 I 6 Shea BICP SPDCPS-verl (52628-0265) -10 - agent or employee of any of the same shall not be liable to any Person for any action or for any • failure to act if the action or failure to act was in good faith and without malice. Section 5.12. No Representations or Warranties. No representations or warranties of any kind, express or implied, shall be deemed to have been given or made by Current Owner, Declarant or any of their agents or employees in connection with any portion of the Annexed Property, or any Improvement thereon, its or their physical condition, zoning, compliance with applicable laws, fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof, unless and except as shall be specifically set forth in writing. Section 5.13. Liberal Interpretation. The provisions of this Supplemental Declaration shall be liberally construed as a whole to effectuate the purpose of this Supplemental Declaration. Section 5.14. Governing Law. This Supplemental Declaration shall be construed and governed under the laws of the State of Colorado. Section 5.15. Severability. Each of the provisions of this Supplemental Declaration shall be deemed independent and severable and the invalidity or unenforceability or partial invalidity or partial enforceability of any provision or portion thereof shall not affect the validity or enforceability of any other provision. Section 5.16. Number and Gender. Unless the context requires a contrary construction, the singular shall include the plural and the plural the singular, and the masculine, feminine or neuter shall each include the masculine, feminine and neuter. Section 5.17. Captions for Convenience. The titles, headings and captions used in this Supplemental Declaration are intended solely for convenience of reference and shall not be considered in construing any of the provisions of this Supplemental Declaration. Section 5.18. Successors and Assigns of Declarant. A party shall be deemed a "successor" or an "assign" of Shea Homes Limited Partnership ("SHLP") as Declarant under this Supplemental Declaration only if specifically designated in a duly recorded instrument as a successor or assign of SHLP as Declarant under this Supplemental Declaration or if specifically designated in a duly recorded instrument as a successor or assign of SHLP as Declarant generally under the Community Declaration or the Subassociation Declaration (as opposed to designation as a successor or assign of SHLP under certain provisions of the Community Declaration or the Subassociation Declaration or with respect to only certain property made subject to the Community Declaration or the Subassociation Declaration). However, a successor to SHLP by consolidation or merger shall automatically be deemed a successor and assign of SHLP as Declarant under this Supplemental Declaration . Shea BICP SPDCPS-verl (52628-0265) (4).DOC Feb1uary 23, 2016 Shea BICP SPDCPS-verl (52628-0265) -11 - • • • • • • SIGNATURE PAGE FOR SUPPLEMENT AL DECLARATION FOR ANNEXED PROPERTY NO. 207 OF HIGHLANDS RANCH COMMUNITY ASSOCIATION, INC. AND HIGHLANDS RANCH BUSINESS PARK, INC. (Delegate District No. 207 -Assessment Area_) (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) IN WITNESS WHEREOF, Shea and Englewood have executed this Supplemental Declaration as of the day and year first above written. Shea BICP SPDCPS-verl (52628-0265) (4).DOC Februal)' 23, 2016 Shea BICP SPDCPS-verl (52628-0265) SHEA: CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company By: Shea Properties Management Company, Inc., a Delaware corporation, its Manager By: _____________ _ Name: ____________ _ Title: ____________ _ By: ___________ _ Name: ____________ _ Title: ------------- ENGLEWOOD: ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation By: _______________ _ Name: ---------------Title: --------------- -12 - STATE OF COLORADO ) ) ss. COUNTY OF DOUGLAS ) The foregoing instrument was acknowledged before me this __ day of ----~ 2016, by _____________ as ________ _ and _______________ as _________ ofSheaProperties Management Company, Inc., a Delaware corporation, as Manager of CENTRAL PARK AT HIGHLANDS RANCH, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: _____________ _ Notary Public STATE OF COLORADO ) ) ss. COUNTY OF DOUGLAS ) The foregoing instrument was acknowledged before me this __ day of ____ _, 2016, by _____________ as _________ of ENGLEWOOD/MCLELLAN RESERVOIR FOUNDATION, a Colorado nonprofit corporation. Witness my hand and official seal. My commission expires: _____________ _ Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23, 2016 Shea BICP SPDCPS-verl (52628-0265) Notary Public -13 - • • • • • • . CONSENT TO SUPPLEMENTAL DECLARATION SHEA HOMES LIMITED PARTNERSHIP, a California limited partnership, hereby consents to the foregoing Supplemental Declaration for Annexed Property No. 207_ of Highlands Ranch Community Association, Inc. and Highlands Ranch Business Park, Inc., pursuant to Section 3 .3 of the Community Declaration and Sections 9 .1, 9 .2 and 9 .3 of the Subassociation Declaration. · · STATE OF COLORADO COUNTY OF DOUGLAS ) DECLARANT: SHEA HOMES LIMITED PARTNERSHIP, a California limited partnership By: _________________ _ Name: -----------------Title: Assistant Secretary By: _________________ _ Name: -----------------Title: Assistant Secretary ) ss. ) The foregoing instrument was acknowledged before me this _ day of ____ ___, 2016, by _______ as Assistant Secretary and _______ as Assistant Secretary of Shea Homes Limited Partnership, a California limited partnership. Witness my hand and official seal. My commission expires: ________________ _ Shea BICP SPDCPS-verl (52628-0265) (4).DOC Febmary 23, 2016 Shea BICP SPDCPS-verl (52628-0265) Notary Public -14 - EXHIBIT A TO SUPPLEMENTAL DECLARATION FOR ANNEXED PROPERTY NO. 207_ OF HIGHLANDS RANCH COMMUNITY ASSOCIATION, INC. AND HIGHLANDS RANCH BUSINESS PARK, INC. (Delegate District No. 207 -Assessment Area_) (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) Description of Annexed Property The private roadway and private street shown and created, and which is labeled as __ Street and as being subject to Specific Purpose Easement"__," as more particularly provided, on the • • plat for Highlands Ranch Filing No. 156, 1st Amendment, recorded _____ __, 2016, at • Reception No. _______ of the Douglas County Records. I Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23, 2016 Shea BICP SPDCPS-verl (52628-0265) • A-1 • ·• • • EXBIBITB · · TO SUPPLEMENTAL DECLARATION FOR ANNEXED PROPERTY NO. 207_ OF HIGHLANDS RANCH COMMUNITY ASSOCIATION, INC. AND HIGHLANDS RANCH BUSINESS PARK, INC. (Delegate District No. 207 -Assessment Area _J (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) Description of Shea Property Those portions of the Annexed Property that were not previously contained within Highlands Ranch Filing No. 156, County of Douglas, State of Colorado, according to the plat thereof recorded February 20, 2013, at Reception No. 2013014711. Shea BICP SPDCPS-verl (52628-0265) (4).DOC Febmary 23, 2016 Shea BICP SPDCPS-verl (52628-0265) B-1 · EXHIBITC ·· TO SUPPLEMENTAL DECLARATION FOR ANNEXED PROPERTY NO. 207_ OF HIGHLANDS RANCH COMMUNITY ASSOCIATION, INC. AND HIGHLANDS RANCH BUSINESS PARK, INC. (Delegate District No. 207 -Assessment Area_) (Highlands Ranch Filing No. 156, 1st Amendment-Private Street) Description of Englewood Property Those portions of the Annexed Property that were previously contained within Highlands Ranch Filing No. 156, County of Douglas, State of Colorado, according to the plat thereof recorded February 20, 2013 at Reception No. 2013014711. Shea BICP SPDCPS-verl (52628-0265) (4).DOC February 23, 20 I 6 Shea BICP SPDCPS-verl (52628-0265) C-1 • • • • • • • COUNCIL COMMUNICATION Date Agenda Item Subject March 14, 2016 Resolution of support: 11ciii Englewood Mclellan Reservoir Foundation exchange of land with Shea Properties d .b.a . Central Park at Highlands Ranch, llC. INITIATED BY STAFF SOURCE Englewood Mclellan Reservoir Foundation Michael Flaherty, EMRF Board of Directosr COUNCIL GOAL AND PREVIOUS COUNCIL ACTION In 1999, City Council authorized the creation of the Englewood Mclellan Reservoir Foundation (EMRF) for the purpose of facilitating the development of property adjacent to the City's Mclellan Reservoir. On June 15, 2015, during an Executive Session and subsequently at the City Council regular meeting on July 6, 2015 , EMRF presented a proposal by Shea Properties d .b.a. Central Park at Highlands Ranch, llC, to exchange a 12.3 acre parcel owned by EMRF in Highlands Ranch Planning Area 81 (PA 81) for a 12 .3 acre adjoining parcel owned by Shea Properties . The exchange is consistent with the authority granted by Ballot Question 2E, as approved by voters in November, 2014 . At the July 6 meeting, Council approved a resolution of support for EMRF to proceed with negotiations for the exchange . RECOMMENDED ACTION EMRF recommends City Council approve a resolution supporting the EMRF to exchange a 12 .3 acre parce of EMRF property in PA81 for a 12.3 acre adjacent parcel owned by Shea Properties d.b.a. Central Park at Highlands Ranch, LLC. BACKGROUND In 1999, through Ordinance 41, City Council authorized the transfer of certain parcels of property in Douglas County near Mclellan Reservoir to EMRF for the purpose of facil itating the development of those properties. Since that time, EMRF has managed and maintained the property, has made improvements, including over-lot grading and storm water management, and has platted most of the individual parcels, including the subject parcel. On May 19 , 2014 , the EMRF Board of Directors presented a Shea Properties proposal to trade a 12.3 acre Shea parcel adjoining the northeast portion of EMRF PA 81, for a 12.3 acre EMRF parcel that adjoins Shea property in order to better facilitate development of property owned by each party. The City Attorney has advised the EMRF Board that a land trade is equivalent to a sale and would require an affirmative vote of the citizens of Englewood to accomplish. On July 21, 2014, City Council approved an ordinance placing a ballot question on the • November 2014 election seeking authorization to exchange EMRF property. Ballot Question 2E was approved by Englewood voters in the November 2104 election. On July 6, 2015, City Council approved Resolution 85 that supported EMRF in its negotiations with Shea for the lease of PA 81 and the exchange of properties, as authorized by Ballot Question 2E in the 2014 election. FINANCIAL IMPACT The exchange will have no direct financial impact; however, it will enhance the overall value of each of the parcels of both EMRF and Shea. LIST OF ATTACHMENTS City Council Resolution Exchange agreement • •