Loading...
HomeMy WebLinkAboutRIVERSIDE SHOPPING CENTER, LOT 1, 1075 PENNOCK PL. - BASIC DEVELOPMENT REVIEW - BDR180014 - SUBMITTAL DOCUMENTS - ROUND 1 - LEGAL DOCUMENTSEASEMENT DEED AND AGREEMENT This EASEMENT DEED AND AGREEMENT (“Agreement”) is made this ___ day of April, 2018 (the “Effective Date”), by and between the Health Services District of Northern Larimer County (f/k/a The Poudre Valley Hospital District), a Colorado special district incorporated under C.R.S. §13-1-101 et seq. (hereinafter the “District” or the “Grantor”), Poudre Valley Health Care, Inc., a Colorado nonprofit corporation, d/b/a Poudre Valley Health System (“PVHS”), and University of Colorado Health, a Colorado nonprofit corporation (the “JOC”), and Hankster, L.L.C., a Colorado limited liability company (the “Grantee”). Grantee and Grantor may sometimes singularly be referred to as a “Party” or collectively be referred to as the “Parties.” Grantee’s Property and Grantor’s Property may sometimes singularly be referred to as a “Property” or collectively be referred to as the “Properties.” RECITALS: A. Hankster, L.L.C. is the owner of certain real property municipally defined as 1075 Pennock Place, Fort Collins, Colorado, 80524 and legally described as follows: Lot 1A, being a portion of Lot 1, RIVERSIDE SHOPPING CENTER SUBDIVISION, FILING II, as referenced in Subdivision Plat recorded with the Larimer County Clerk and Recorder on ____________, 2018 at Reception No. ______________ (the “Grantee’s Property”). B. The District is the owner of certain real property municipally defined as 1025 Pennock Place, Fort Collins, CO, and legally defined as follows: Parcel I: Lot 2 and Lot 3, Riverside Shopping Center Subdivision, Filing II, City of Fort Collins, County of Larimer, State of Colorado. Parcel II: Lot 1, Riverside Shopping Center Subdivision, Filing II, City of Fort Collins, County of Larimer, State of Colorado, except that portion described Lot 1A, being a portion of Lot 1, RIVERSIDE SHOPPING CENTER SUBDIVISION, FILING II (collectively the “Grantor’s Property”). C. The Grantee’s Property is a resubdivision of that portion of Grantor’s Property legally described as Lot 1, Riverside Shopping Center Subdivision, Filing II, City of Fort Collins, County of Larimer, State of Colorado. Grantee’s Property and Grantor’s Property are 2 adjoining one another and were developed as part of a common development plan approved by the City of Fort Collins, Colorado (“City”). D. The Grantor’s Property and the Grantee’s Property are subject to certain recorded plats, declarations and covenants, and easement agreements including the following: (i) A Plat of Riverside Shopping Center Subdivision, Filing II as recorded with the Larimer County Clerk and Recorder on January 14, 1985 at Reception No. 852128 (the “Plat”); and, (ii) Declaration of Covenants Conditions and Restrictions for the Riverside Shopping Center Subdivision Filing No. II recorded with the Larimer county Clerk and Recorder on February 26, 1986 at Reception No. 86009953 (the “Covenants”). E. The ingress, egress, drainage, parking and utility services for Grantee’s Property crosses and relies on Grantor’s Property as constructed and developed pursuant to the Plat and the Covenants. The easements granted and ratified under this Agreement are subject to the Covenants. F. The District, PVHS and JOC are parties to that certain Hospital Operating Lease Agreement entered into as of May 1, 1994, as evidenced by the Memorandum of Lease recorded with the Larimer County Clerk and Recorder on July 27, 1994, at Reception No. 94063152, and that certain Amendment to Memorandum of Lease as recorded with the Larimer County Clerk and Recorder on November 13, 2012, at Reception No. 20120080001 (the “Hospital Operating Lease Agreement”). The Grantor’s Property is subject to the terms of the Hospital Operating Lease Agreement. PVHS and JOC join this Agreement as interested parties under the terms of the Hospital Operating Lease Agreement, to subordinate their interest in the Grantor’s Property to the easements granted herein, and to ratify the terms and conditions of the Covenants. THEREFORE, in consideration of the Recitals, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to the terms and conditions hereof, the Parties agree as follows. AGREEMENTS: 1. Grant of Easements. Incorporating herein the foregoing Recitals, and in consideration of the covenants and obligations contained in this Agreement, Grantor hereby sells, bargains, grants, quitclaims, conveys, assigns, establishes, ratifies, and creates to and for the benefit of Grantee, for Grantee’s use and the use of Grantee’s agents, contractors, tenants, employees, customers, licensees, guests and invitees, perpetual, non-exclusive easements over, under and across the Grantor’s Property as defined and set forth in the Covenants, including, but not limited to, ingress and egress access to and from Grantee’s Property, changing, correcting or otherwise modifying drainage, parking, and for the placement, use, maintenance and repair of underground utility lines all as provided in the Covenants (“Covenant Easements”). The Covenant Easements shall be an easement appurtenant to Grantee’s Property and shall inure to the benefit of Grantee’s 3 heirs, successors, assigns and personal representatives, subject to the conditions set forth herein. The Covenant Easements shall run with the land of Grantor and Grantee. The easements may not be transferred, assigned or conveyed apart or separately from the Grantee’s Property. 2. Covenants. Grantee’s uses of the Covenant Easements are subject to the Covenants. 3. Grantor’s Rights. Grantor reserves the right of ownership, use, and occupancy of Grantor’s Property, insofar as the ownership, use, and occupancy do not impair the rights granted to Grantee herein, and subject to the terms of the Covenants. 4. Subordination; Ratification. PVHS and JOC join in the execution of this Agreement as interested parties under the terms of the Hospital Operating Lease Agreement, to subordinate their interest in the Grantor’s Property to the Covenant Easements granted herein, and to ratify the terms and conditions of the Covenants. PVHS’s and JOC’s use and occupancy of the Grantor’s Property shall not impair the rights granted to Grantee herein, and is subject to the terms of the Covenants. 5. Maintenance and Repair. Grantor’s, PVHS’s and JOC’s use of the Grantor’s Property, and Grantee’s uses of the Grantee’s Property, are subject to the Plat and the Covenants, including but not limited to Percentage of Assessments and Number of Votes as set forth on Exhibit 3 of the Covenants. The Grantee’s Property is now legally described as Lot 1A, being a portion of Lot 1, RIVERSIDE SHOPPING CENTER SUBDIVISION, FILING II, and the total square footage of the buildings constructed on the Grantee’s Property, for the purposes of the Covenants and this Agreement, is agree to equal 2,800 square feet. For the purposes of the Covenants, Grantee’s Percentage of Assessments is 5.93% and Number of Votes is 28 as set forth on Exhibit 3 of the Covenants. 6. Grantor’s and Grantee’s Warranties. Grantor warrants that it has all necessary power and authority to grant and ratify the Covenant Easements granted and ratified hereby and that this instrument has been duly authorized, approved and executed. Grantee warrants that this instrument has been duly authorized, approved and executed by Grantee. 7. Estoppel Certificate. Each Party hereby covenants and agrees that within fifteen (15) business days after written request of the other Party, it will issue to such other Party or to any prospective mortgagee or purchaser of such Party’s Property, an estoppel certificate stating: (a) whether the Party to whom the request has been directed knows of any default under this Agreement and if there are known defaults specifying the nature thereof; (b) whether to its knowledge this Agreement has been modified or amended in any way (and if it has, then stating the nature thereof); and (c) whether to such Party’s knowledge this Agreement as of that date is in full force and effect. 8. Default. In the event of a default by either Party under this Agreement in the observance or performance of any of the covenants or other provisions of this Agreement to be observed or performed by such Party, if such default is not cured within sixty (60) days after notice 4 to defaulting Party (or if such default is incapable of cure within such 60-day period and defaulting Party commences to cure within such 60-day period and thereafter diligently and continuously takes action to effect a cure), the non-defaulting Party shall have the following remedies: (a) to cure, if capable of cure, the breach by the defaulting Party, with the right of reimbursement from the defaulting Party for all reasonable costs and expenses incurred in connection with such cure, including reasonable legal fees; (b) an action for specific performance and/or injunction; and (c) an action for actual damages. No breach of this Agreement shall entitle any party to consequential, incidental, economic, treble or punitive damages or to cancel, rescind, or otherwise terminate this Agreement, but such limitation shall not affect in any manner any other rights or remedies which such Party may have by reason of any breach of this Agreement. 9. Mechanic’s Liens. Neither Party shall permit any mechanic’s liens to be placed upon the Covenant Easements for any work performed in conjunction with the Covenant Easements’ maintenance or repair. Should any liens be filed against the Covenant Easements, the Party causing such lien to be created shall cause such lien to be removed within thirty (30) days or a bond shall be filed with the appropriate court to obtain a release of the lien. If the lien is not removed or bonded over by the Party causing the lien, the other Party may file a bond for the removal of the lien, and shall be reimbursed for the full cost of such bond. 10. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be (a) personally delivered, (b) deposited with a nationally recognized overnight delivery service that routinely issues receipts, or (c) given by registered or certified mail. Any such notice or other communication shall be effective when such notice is delivered to the addresses set forth below and received or refused by the addressee: To the Grantor: Health Services District of Northern Larimer County To PVHS: Poudre Valley Health Care, Inc. To JOC: University of Colorado Health 5 To the Grantee: Hankster, L.L.C. Attn: Mary A. Winter 809 Hillcrest Drive Basalt, CO 81621 Any Party, by ten (10) days’ prior written notice given as set forth above, may change the address to which future notices or other communications intended for such Party shall be sent. 11. Liability Termination. Whenever Grantor’s or Grantee’s Property is transferred, the transferor shall have no further liability under this Agreement for any breach of this Agreement occurring after such transfer. 12. Modification. No provision or term of this Agreement may be amended, modified, revoked, supplemented, waived, or otherwise changed except by a written instrument duly executed by the Parties hereto or such others as may from time to time own an interest in the respective Properties. 13. Entire Agreement. This Agreement constitutes and incorporates the entire agreement among the Parties hereto concerning the subject matter of this Agreement and supersedes any prior agreements concerning the subject matter hereof. 14. Attorneys’ Fees. If any action is commenced between the Parties concerning this Agreement or for the enforcement of rights and duties of any Party pursuant to this Agreement, the court shall award the substantially prevailing Party in the action its reasonable attorneys’ fees in addition to any other relief that may be granted. 15. Severability. If any provision of this Agreement shall be held invalid, illegal, or unenforceable in any jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be impaired thereby. 16. Successors and Assigns/Covenants Run With Land. The terms and conditions of this Agreement bind and inure to the benefit of the Parties, and their respective successors, assigns and personal representatives. The Covenant Easements granted herein shall constitute a covenant running with the land and shall bind Grantor’s Property described herein and inure to the benefit of and be binding upon the Parties, their grantees, and respective successors and assigns, and any persons claiming by, through or under them. 17. No Waiver. No provision of this Agreement may be waived except by written instrument signed by the Party to be charged with such waiver. Waiver by any Party of any agreement, condition, or provision contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other agreement, condition, or provision contained in this Agreement. 6 18. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of the Easement Area or any portion thereof to the general public, or for any public use or purposes whatsoever. Except as herein specifically provided, no right, privileges or immunities of any Party shall inure to the benefit of any third party, nor shall any third party be deemed to be a beneficiary of any of the provisions contained herein. 19. Construction of Agreement. This Agreement resulted from review and negotiations between the Parties and their attorneys. This Agreement will be construed to have been drafted by all of the Parties so that the rule of construing ambiguities against the drafter will have no force or effect. 20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without reference to conflicts of law principles. 21. Authorization. Each Party is authorized and empowered to execute this Agreement and all necessary corporate or partnership action has been taken to authorize execution of this Agreement. 22. Execution. The Parties shall execute and deliver such further documents as may be reasonably required in order to effect the intent of this Agreement. 23. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to constitute an original and all of which when taken together shall constitute one and the same instrument; provided, however, that this Agreement will not become binding upon any Party unless and until executed (whether or not in counterpart) by all the Parties. 24. Facsimile/E-Mail. Original signatures of the parties hereto on copies of this Agreement transmitted by facsimile or e-mail shall be deemed originals for all purposes hereunder and such copies shall be binding on all parties hereto. IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the date first above written. (Signature pages follow) 7 DISTRICT: Health Services District of Northern Larimer County, a Colorado special district incorporated under C.R.S. §13-1-101 et seq. By: Name: Title: STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ___ day of ________, 2018 by _________________________________in his/her capacity as _______________________of Health Services District of Northern Larimer County, a Colorado special district incorporated under C.R.S. §13-1-101 et seq. Witness my hand and official seal. Notary Public My Commission Expires: 8 PVHS: Poudre Valley Health Care, Inc., a Colorado nonprofit corporation, d/b/a Poudre Valley Health System By: Name: Title: STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ___ day of ________, 2018 by _________________________________in his/her capacity as _______________________of Poudre Valley Health Care, Inc., a Colorado nonprofit corporation, d/b/a Poudre Valley Health System. Witness my hand and official seal. Notary Public My Commission Expires: 9 JOC: University of Colorado Health, a Colorado nonprofit corporation (the “JOC”) By: Name: Title: STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ___ day of _________, 2018 by _________________________________in his/her capacity as _______________________of University of Colorado Health, a Colorado nonprofit corporation. Witness my hand and official seal. Notary Public My Commission Expires: 10 GRANTEE: Hankster, L.L.C., a Colorado limited liability company By: Mary A. Winter, Member STATE OF COLORADO ) ) ss. COUNTY OF ____________) The foregoing instrument was acknowledged before me this ___ day of _________, 2018 by Mary A. Winter as Member of Hankster, L.L.C., a Colorado limited liability company. Witness my hand and official seal. Notary Public My Commission Expires: