HomeMy WebLinkAboutTHE HUB ON CAMPUS - PDP - PDP160038 - SUBMITTAL DOCUMENTS - ROUND 4 - EASEMENTSWednesday, November 8, 2017 at 10:38:44 AM Central Standard Time
Page 1 of 2
Subject: FW: 1415 Elizabeth - easement
Date: Wednesday, November 8, 2017 at 10:38:15 AM Central Standard Time
From: Mark Goehausen
To: Mark Goehausen
From: Doran Davello <ddavello@summitmanagementservices.net>
Date: September 19, 2017 at 11:33:40 AM CDT
To: 'Tom Harrington' <tomh@corespaces.com>
Cc: Herb Newman <hnewman@summitmanagementservices.net>, "'Coyne, John'"
<jcoyne@ralaw.com>
Subject: RE: easement
Tom; $75,000 plus aZorney fees not to exceed $10,000. Write it up.
Doran D’Avello
President
330-535-7027 office
330-762-2024 fax
ddavello@summitmanagementservices.net
www.summitmanagementliving.com
From: Tom Harrington [mailto:tomh@corespaces.com]
Sent: Monday, September 18, 2017 2:57 PM
To: Doran Davello <ddavello@summitmanagementservices.net>
Cc: Herb Newman <hnewman@summitmanagementservices.net>; 'Coyne, John'
<jcoyne@ralaw.com>
Subject: Re: easement
Can we get this done at $75,000?
Thanks
Page 2 of 2
Thomas E. Harrington, Jr.
Director of Acquisitions
Core Spaces
1643 N Milwaukee Ave, 5th
Floor | Chicago, IL 60647
C 217.369.0038
www.CoreSpaces.com
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From: "ddavello@summitmanagementservices.net"
<ddavello@summitmanagementservices.net>
Date: Wednesday, September 13, 2017 at 12:41 PM
To: Tom Harrington <tomh@corespaces.com>
Cc: Herb Newman <hnewman@summitmanagementservices.net>, "jcoyne@ralaw.com"
<jcoyne@ralaw.com>
Subject: easement
Tom; I got Herb’s aZenfon this morning. He menfoned that since you will be direct compeffon
he wants $100,000.
Doran D’Avello
President
330-535-7027 office
330-762-2024 fax
ddavello@summitmanagementservices.net
www.summitmanagementliving.com
{00091687 4} 1
AGREEMENT
THIS AGREEMENT (“Agreement”) is entered into this [___] day of
[____________], 2017, by and between Core Fort Collins 1415 Elizabeth LLC, a Delaware
limited liability company (“Core”), and [Rams Crossing] (“Neighbor”).
RECITALS
A. Core is the owner of certain real property located in Larimer County,
Colorado, as described on the attached Exhibit A (the “Core Property”).
B. Neighbor is the owner of certain real property located in Larimer County,
Colorado, as described on the attached Exhibit B (the “Neighbor’s Property”).
C. Core is constructing a parking garage and student housing on the Core Property
(the “Project”) adjacent to the Neighbor’s Property.
D. Core and Neighbor desire to agree to certain terms in connection with the
construction of the Project.
E. Core desires that Neighbor grant Core a temporary airspace and excavation
easement in the form attached to this Agreement as Exhibit C (the “Construction Easement”).
F. Core desires that Neighbor, at Core’s cost, file a replat, dedication or easement
affecting Neighbor’s Property and granting to the city a sewer, storm and utility easement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties agree as follows:
1. Core shall pay to Neighbor $75,000 in compensation for entering into the
easements described and performing the actions described in Section 2 and Section 3
below, as well as for the disruption and inconvenience Core’s construction on the Core
Property will cause Neighbor within 5 business days following the execution of this
Agreement.
2. Concurrently with the execution of this Agreement, Core and Neighbor
shall execute the Construction Easement in the form of Exhibit C attached hereto.
3. Neighbor shall execute, at Core’s option, a replat, dedication or easement
affecting Neighbor’s Property prepared by Core, at Core’s sole cost, that includes on
Neighbor’s Property a permanent exclusive sewer and utility easement grant to the City
of Fort Collins for the placement, operation, maintenance, repair and replacement of
sanitary sewer, storm sewer and other utility lines (the “Utility Easement”) in a form and
{00091687 4} 2
location acceptable to the City of Fort Collins. Neighbor shall cooperate in good faith
with Core, at Core’s sole cost, in the preparation, submission and recording of the Utility
Easement. Neighbor shall obtain all signatures for the Utility Easement, including those
of any lienholders, that are reasonably requested by Core (other than the City of Fort
Collins) or that are required by the City of Fort Collins for the Utility Easement within 7
days following written notice from Core. Core agrees to reimburse Neighbor for
Neighbor’s actual costs, including reasonable attorney’s fees in connection with the
Utility Easement.
4. Core Campus shall pay Neighbor’s actual attorneys’ fees incurred in
connection with the review, negotiation and execution of this Agreement, the
Construction Easement and all other documents attached hereto up to $10,000.
5. Each of the parties to this Agreement will be entitled to enforce its rights
under this Agreement specifically, to recover damages and costs (including, but not
limited to, reasonable attorneys’ fees) caused by any breach of this Agreement and to
exercise all other rights and remedies available at law in equity.
6. Core represents and warrants to Neighbor, and Neighbor represents and
warrants to Core, that it has the power and authority to enter into this Agreement.
7. This Agreement is for the benefit of the parties hereto. No third party is
intended to benefit from this Agreement, nor is this Agreement intended to confer any
rights, remedies or obligation on any party other than the parties to this Agreement.
8. This Agreement (together with all agreements attached as exhibits hereto)
is the entire agreement between the parties regarding the subject matter hereof. This
Agreement (including all exhibits hereto) supersedes any and all other oral and written
statements purported to have been made regarding the subject matter hereof. This
Agreement may not be amended except by a writing signed by all parties.
9. In the event that any part of this Agreement is judicially determined to be
unenforceable or otherwise contrary to applicable law, the rest of this Agreement shall
remain in full force and effect and shall be conformed to the intent of the parties, as
nearly as possible, consistent with applicable law.
10. This Agreement shall be governed by the laws of the State of Colorado
without regard to its conflicts of laws principles. Each of the parties hereto irrevocably
consents to submit to the exclusive jurisdiction of the Courts of the State of Colorado for
any litigation arising out of or relating to this Agreement.
11. This Agreement may be executed in counterparts, which shall evidence
one agreement.
[Signature page follows.]
{00091687 4} 3
{00091687 4} 4
IN WITNESS WHEREOF, the undersigned parties hereto have executed this Agreement by
and through their duly authorized officers, as of the day and year first above written.
CORE FORT COLLINS 1415 ELIZABETH LLC
By: Convexity Management LLC
Its: Manager
By:
Name:
Its: Manager
By: Core Campus Manager, LLC
Its: Manager
By:
Name:
Its: Manager
[RAMS CROSSING]
By:
Name:
Its:
{00091687 4} 5
Exhibit A
Core Property
Lot 2, FAIRVIEW SHOPPING CENTER, City of Fort Collins,
County of Larimer, State of Colorado; and
Lot 2, POTT'S P.U.D., City of Fort Collins,
County of Larimer, State of Colorado
{00091687 4} 6
Exhibit B
Neighbor’s Property
[Lot 1, POTT'S P.U.D., City of Fort Collins,
County of Larimer, State of Colorado]
{00091687 4} 7
Exhibit C
Construction Easement
[See attached.]
{00091711 2}
CONSTRUCTION EASEMENT AGREEMENT
THIS CONSTRUCTION EASEMENT AGREEMENT (“Agreement”) is entered into
this [____] day of [___________], 2017, by and between CORE FORT COLLINS 1415
ELIZABETH LLC, a Delaware limited liability company (together, “Core”) and [Rams
Crossing] (“Neighbor”).
RECITALS
A. Core is the owner of certain real property located in Larimer County, Colorado, as
described on the attached Exhibit A (the “Core Property”).
B. Neighbor is the owner of certain real property located in Larimer County,
Colorado, as described in the attached Exhibit B (the “Neighbor’s Property”).
C. Core intends to perform certain construction work on the Core Property to
develop the Core Property (the “Project”). Such work requires (i) the use of a construction
crane, mobile crane, scaffolding or other lifting device (collectively, the “Crane”) that Core
desires to operate within the airspace above Neighbor’s Property and (ii) the installation and/or
relocation of sanitary sewer lines, storm sewer lines, gas lines, telephone and communication
lines, and certain other utility lines that will include excavation below ground (a “Sewer and
Utility Lines”).
D. Core desires to obtain from Neighbor, and Neighbor desires to grant Core,
airspace and excavation easement rights on the Neighbor’s Property.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties agree as follows:
1. Recitals. The above recitals are hereby incorporated into this Agreement as if
fully set forth herein.
2. Airspace Easement. Neighbor hereby grants to Core and to Core’ employees and
agents (including, but not limited to, their general contractors and subcontractors) a temporary
nonexclusive airspace easement over Neighbor’s Property and over any improvements now or in
the future constructed thereon (the “Airspace Easement Area”) to allow for the passage of the
Crane over the Neighbor’s Property. Core shall use commercially reasonable efforts to maintain
a minimum clearance of ten feet over the improvements located on the Neighbor’s Property at
the time that Core uses the air space easement granted herein, which easement shall be used
solely for the purpose of the construction of the Project.
{00091711 2}
3. Excavation Easement. Neighbor hereby grants to Core a temporary,
nonexclusive easement on and under the surface of that portion of Neighbor’s Property proposed
as more particularly described in Exhibit C attached hereto (the “Excavation Easement Area”) to
allow for excavation and the placement of the Sewer and Utility Lines (the "Excavation
Easement").
4. Access. Core shall have reasonable access to and from Neighbor’s Property as
may be required in connection with the exercise of Core’s rights under the Airspace Easement
and the Excavation Easement. Core shall provide Neighbor with at least 24 hours prior notice
(email and phone notice is acceptable) of each instance Core (or Core's contractors or
subcontractors) requires access to Neighbor's Property in connection with Core exercising its
rights under this Agreement.
5. Core’s Obligations After Installation of the Sewer and Utility Lines. Following
installation of the Sewer and Utility Lines, Core shall repair any damage to Neighbor's
Property caused by Core in connection with any excavation on Neighbor’s Property or by use
of the Crane (or replace or pay the replacement cost of any damaged property caused by Core
in connection with any excavation or by use of the Crane) including replanting trees, restoring
irrigation, and repairing or replacing any fences. In addition, Core shall reimburse Neighbor
for Neighbor’s actual costs in engaging an HVAC contractor to re-light 27 residential furnace
pilot lights on Neighbor’s Property.
6. Insurance. At all times that Core or its employees or agents (including, but not
limited to, its general contractor and/or subcontractors), are utilizing the Airspace Easement or
the Excavation Easement, Core or its general contractor and subcontractors shall maintain (a)
liability insurance in the minimum amount of $1,000,000.00 per occurrence plus a $4,000,000.00
umbrella liability policy naming the Neighbor and its successors and assigns as owners of the
Neighbor’s Property (as well as, if requested by neighbor, any mortgagee(s) and/or tenant(s) of
the Neighbor’s Property) as additional insureds covering injury to persons and damage to
property arising out of the use of the air space easement by Core, its employees, agents, general
contractors and/or subcontractors including, but not limited to, injury or damage resulting from
the setting up, standing and operation, and taking down of the Crane and the relocation of the
Sewer and Utility Lines. The policy of liability insurance shall provide that said policy cannot
be terminated or cancelled without at least thirty (30) days written notice to each additional
insured. Prior to the setting up of any Crane, Core and/or its general contractors and
subcontractors shall have provided Neighbor with a copy of said policy of insurance and
certificates evidencing that Neighbor, Neighbor’s mortgagee and Neighbor’s tenant(s) are named
as additional insureds thereon. During any period of time said policy of insurance is not in
effect, the Airspace Easement and the Excavation Easement shall be and hereby is suspended.
7. Indemnification. Core agrees to indemnify, defend, and hold harmless the
Neighbor and the officers, directors, shareholders, members, partners, trustees, trust
beneficiaries, tenants, agents, successors and assigns of the Neighbor (collectively the
“Indemnified Parties”), from and against any and all claims, causes of action, costs, personal
injuries, losses, damages, liabilities, demands, interest, administrative orders and notices, fines,
penalties and expenses, including, without limitation, reasonable attorneys’ fees and expenses,
consultants fees and expenses, court costs and all other out-of-pocket expenses, suffered or
{00091711 2}
incurred by the Indemnified Parties arising out of or as the result of any and all activity
conducted by or at the request or direction of Core in the Airspace Easement Area and
Excavation Easement Area during the Term (defined in Section 9). This paragraph shall survive
the expiration or termination of this Agreement.
8. Neighbor Obligations. Neighbor agrees to promptly give Core written notice of
any claims of which Neighbor has actual knowledge and for which Core may have an obligation
of indemnification under this Agreement and further agrees to reasonably cooperate in the
defense of any such claims, but any failure to give notice shall not eliminate the obligations and
duties of Core hereunder, except to the extent that the Core is actually and materially prejudiced
thereby.
9. Term. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns for the term (the “Term”) commencing on the date hereof,
which Term shall automatically expire on the date of completion of the construction of the
Project. The airspace easement granted hereby is an easement appurtenant, shall benefit and
burden the properties described herein, and may not be separated from title to the properties
described herein.
10. Reservation of Rights. Nothing in this Agreement limits or precludes
construction or vertical expansion of any improvements or appurtenances by Neighbor in
Neighbor’s airspace. The airspace easement rights granted in this Agreement are only over
Neighbor’s airspace that exists at such times during which Core is exercising such rights.
11. Successors and Assigns; Easements Run with the Land. This Agreement shall
be binding upon the parties hereto and their respective successors and assigns for the period
herein defined. The easements granted hereby are easements appurtenant, shall benefit and
burden the properties described herein, and may not be separated from title to the properties
described herein.
12. Governing Law. This Agreement and any amendments thereto shall be construed
in accordance with and governed by the laws of the State of Colorado.
[Signature Page Follows]
{00091711 2}
IN WITNESS WHEREOF, the undersigned parties hereto have executed this Agreement by and
through their duly authorized officers, as of the day and year first above written.
CORE FORT COLLINS 1415 ELIZABETH LLC
By: Convexity Management LLC
Its: Manager
By:
Its:
By: Core Campus Manager, LLC
Its: Manager
By:
Its:
[RAMS CROSSING]
By:
Its:
[Notary Page Follows]
{00091711 2}
STATE OF ______________ )
)
COUNTY OF ______________ )
I, _________________________________, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that ___________________________________,
____________________ of Convexity Management LLC, a Delaware limited liability company,
a manager of CORE FORT COLLINS 1415 ELIZABETH LLC, a Delaware limited liability
company, personally known to me to be the same person(s) whose name(s) is/are subscribed to
the foregoing appeared before me this day in person and acknowledged that he signed, sealed
and delivered the said instrument as his free and voluntary act, for the uses and purposes therein
set forth.
GIVEN under my hand and Notarial Seal this ____ day of ___________, 2017.
Notary Public
My commission:
STATE OF ______________ )
)
COUNTY OF ______________ )
I, _________________________________, a Notary Public in and for said County, in
the State aforesaid, DO HEREBY CERTIFY that _____________________________________,
a manager of Core Campus Manager, LLC, a Delaware limited liability company, a manager of
CORE FORT COLLINS 1415 ELIZABETH LLC, a Delaware limited liability company, person-
ally known to me to be the same person(s) whose name(s) is/are subscribed to the foregoing
appeared before me this day in person and acknowledged that he signed, sealed and delivered the
said instrument as his free and voluntary act, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this ____ day of ___________, 2017.
Notary Public
My commission:
[Additional Notary Page Follows]
{00091711 2}
STATE OF )
)
COUNTY OF )
I, _________________________________, a Notary Public in and for said County, in the
State aforesaid, DO HEREBY CERTIFY that ____________________________________,
_____________ of [RAMS CROSSING], personally known to me to be the same person whose
name is subscribed to the foregoing, appeared before me this day in person and acknowledged that he
signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and
purposes therein set forth.
GIVEN under my hand and Notarial Seal this ____ day of ___________, 2017.
Notary Public
My commission:
AFTER RECORDING, Return to:
Michael Roberts
Roberts McGivney Zagotta LLC
55 W. Monroe Street
Suite 1700
Chicago, Illinois 60603
{00091711 2}
Exhibit A
Core Property
Lot 2, FAIRVIEW SHOPPING CENTER, City of Fort Collins,
County of Larimer, State of Colorado; and
Lot 2, POTT'S P.U.D., City of Fort Collins,
County of Larimer, State of Colorado
{00091711 2}
Exhibit B
Neighbor’s Property
[Lot 1, POTT'S P.U.D., City of Fort Collins,
County of Larimer, State of Colorado]
{00091711 2}
Exhibit C
Excavation Easement Area
[See Attached.]
{00091711 2}
CONSENT AND SUBORDINATION OF MORTGAGEE
FOR VALUABLE CONSIDERATION, the undersigned, __________________
(“Bank”), holder of a mortgage on Neighbor’s Property described on Exhibit B to the Easement
Agreement (the “Agreement”) to which this Consent is attached, does hereby (a) consent to such
Agreement; (b) subordinate its mortgage to the Agreement and (c) agree that no foreclosure of its
mortgage shall interfere with or limit the easement rights as established and more particularly
described in the Agreement. This Consent shall be binding on Bank and all its successors and
assigns.
Executed as of the ____ day of ___________, 2017.
____________________________________
By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Attest: ___________________________________
Name: ___________________________________
Title: ____________________________________
STATE OF )
) ss.
COUNTY OF _________ )
Personally came before me this ____ day of _____________, 2017, the above-named
__________________ and ________________ as the ___________________ and
____________, respectively, of ______________________ and to me known to be the persons
who executed the foregoing instrument and acknowledged the same in such capacities.
__________________________________________
Notary Public, State of _______________________
My commission: ___________________________