HomeMy WebLinkAboutTHE HUB ON CAMPUS - FDP - FDP180011 - SUBMITTAL DOCUMENTS - ROUND 1 - EASEMENTS{00091711 23}
CONSTRUCTION EASEMENT AGREEMENT
THIS CONSTRUCTION EASEMENT AGREEMENT (“Agreement”) is entered into
this [____]____ day of [___________], 2017___________, 2018, 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.
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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
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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]
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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]
________________________________
(Owner Name)
By:
Its:
[Notary Page Follows]
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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 ___________, 20172018.
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 ___________, 20172018.
Notary Public
My commission:
[Additional Notary Page Follows]
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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 ___________, 20172018.
Notary Public
My commission:
AFTER RECORDING, Return to:
Michael Roberts
Roberts McGivney Zagotta LLC
55 W. Monroe Street
Suite 1700
Chicago, Illinois 60603
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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
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Exhibit B
Neighbor’s Property
[That certain real estate located directly to the south of the Core Property.
Lot 1, POTT'S P.U.D., City of Fort Collins,
County of Larimer, State of Colorado]
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Exhibit C
Excavation Easement Area
[See Attached.]
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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 ___________, 20172018.
____________________________________
By: ______________________________________
Name: ___________________________________
Title: ____________________________________
Attest: ___________________________________
Name: ___________________________________
Title: ____________________________________
STATE OF )
) ss.
COUNTY OF _________ )
Personally came before me this ____ day of _____________, 20172018, 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: ____________________________