HomeMy WebLinkAboutOAK WHITCOMB REPLAT - BDR180038 - SUBMITTAL DOCUMENTS - ROUND 2 - EASEMENTS (4)1
PARKING EASEMENT
AND
MAINTENANCE AGREEMENT
THIS PARKING EASEMENT AND MAINTENANCE AGREEMENT (“Agreement”)
is entered into effective as of the _____ day of ______________________, 2019 by 525 W. Oak,
LLC, a Colorado limited liability company (the “Owner”), whose address for purposes of this
Agreement is 3528 Precision Drive, Suite 100, Fort Collins, Colorado 80528.
Recitals
A. Owner is the owner of the following described real property:
Lot 1, West Oak Subdivision, City of Fort Collins, County of Larimer, State of
Colorado ( “Lot 1”); and
Lot 3, West Oak Subdivision, City of Fort Collins, County of Larimer, State of
Colorado ( “Lot 3”);
Lot 1 and Lot 3 are collectively referred to herein as the “Lots.”
B. Immediately prior to execution of this Agreement, Owner filed the Final Plat of
West Oak Subdivision (the “Plat”) which subdivided and created the Lots. The owner of Lot 1,
whether Owner or its successors, shall be referred to as the “Lot 1 Owner.” The owner of Lot 3,
whether Owner or its successors, shall be referred to as the “Lot 3 Owner.”
C. A parking lot currently exists on certain portions of Lot 1 (the “Parking Lot”) and
the City of Fort Collins, Colorado is requiring the Owner to enter into and record this Agreement
allocating the use of two (2) parking spaces located on the Parking Lot for the benefit of Lot 3 as
a condition of approving the Plat.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement
and to obtain approval of the Plat, the Owner hereby subjects the Lots to the following easements
and covenants which shall run with the Lots and be binding upon all future owners and occupants
of the Lots.
Easement and Covenants
1. Grant of Easement. The Lot 3 Owner is hereby granted the following easements
on, in, over and across the Parking Lot:
a. A perpetual, non-exclusive parking easement on, in, over and to two (2) striped
parking spaces located in the Parking Lot as designated by the Lot 1 Owner from
time to time (the “Parking Spaces”) for the purpose of parking one (1) operational
non-commercial passenger motor vehicle on each Parking Space. The easements
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granted in this Agreement may not be used for any recreational vehicle (RV), boat,
camper, commercial vehicle, non-operational vehicle or for any purpose other than
as specifically permitted by the foregoing sentence. The Lot 1 Owner reserves the
right to alter the location of the Parking Spaces within the Parking Lot at any time
by providing notice of the new location of the Parking Spaces to the Lot 3 Owner.
Nothing herein requires the Parking Spaces be adjacent to each other or Lot 3; and
b. A perpetual, non-exclusive easement on, in, over and across the Parking Lot for
vehicular, bicycle and pedestrian ingress and egress to and from the Parking Spaces,
provided, however, that the Lot 3 Owner’s ingress and egress shall be via Lot 3 and
an access point or access points designated by the Lot 1 Owner. In the absence of
any designation of an access point by the Lot 1 Owner, the Lot 3 Owner’s ingress
and egress from the Parking Lot shall be via Lot 3 and the point or points the
Parking Lot connects to the alley east of Lot 1 shown on the Plat.
The easements set forth in Sections 1(a) and 1(b) above are collectively referred to as the
“Easements.” The Easements are for the benefit of the Lot 3 Owner and its successors and assigns,
as well as their respective tenants, invitees, guests and agents; and
2. Rights Reserved by Lot 1 Owner. The Owner of Lot 1 shall have the right to
demolish, reconstruct, redevelop, repair, alter, relocate and otherwise treat the Parking Lot as its
sole and separate property so long as the Lot 3 Owner is provided with the Parking Spaces on Lot
1 and access as required by Section 1. The Owner of Lot 1 may also temporarily suspend the Lot
3 Owner’s access to the Parking Spaces and use of the Easements for a reasonable period of time
for purposes of exercising its rights under this Section 2. The Easements may be used by the Lot
1 Owner for any purposes which do not unreasonably and materially interfere with the Lot 3
Owner’s use of the Easements for the purposes set forth herein.
3. No Merger, Amendment & Termination. The Easements shall not merge with
ownership of the fee estate in the Lots. Common ownership of the Lots shall not be construed as
terminating or altering the Easements granted herein. This Agreement may only be amended,
vacated, released or terminated in whole or in part by an instrument executed by the record owners
of the Lots, whether one or more. Any such instrument shall be recorded with the Clerk and
Recorder of Larimer County, Colorado.
4. Maintenance and Cost Sharing. The Lot 1 Owner shall keep and maintain the
Parking Lot and provide for such maintenance, repair and other services as the Lot 1 Owner deems
reasonably necessary for the operation and maintenance of the Parking Lot. Maintenance and
operation shall include, without limitation, snow removal, painting of parking lot lines, installation
of lighting, installation of security measures, resurfacing and repairs to the surface, costs of signs
and any other action reasonably necessary to keep, maintain and operate the Parking Lot in good
repair, free from defects, in compliance with all applicable laws, ordinances, rules and regulations
of governing authorities and in a safe and orderly manner. The Lot 3 Owner shall reimburse the
Lot 1 Owner for its Proportionate Share of all expenses incurred by the Lot 1 Owner related to the
operation and maintenance of the Parking Lot. For purposes of this Agreement, the Lot 3 Owner’s
“Proportionate Share” means a fraction the numerator of which is two (2) and the denominator
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of which is the number of striped parking spaces in the Parking Lot. Notwithstanding the
foregoing, the Lot 3 Owner shall not be responsible for any costs associated with the demolition,
reconstruction or relocation of the Parking Lot if such demolition, reconstruction or relocation is
related to the redevelopment, expansion or remodel of the building located on Lot 1.
5. Default and Non-Payment Remedies. If either party does not comply with its
obligations hereunder (the “Defaulting Party”), the other party (the “Non-Defaulting Party”)
shall have the right, but not the obligation, to perform such obligations either itself or by hiring a
third party to remedy such non-performance on account of the Defaulting Party. Should the Non-
Defaulting Party incur any cost or expense (including reasonably attorney’s fees) in remedying
such failure of the Defaulting Party to perform its obligations hereunder (the “Default Amount”),
the Non-Defaulting Party shall be entitled to charge the Defaulting Party for the Default Amount
by submitting a written invoice for the same to the Defaulting Party. The Defaulting Party shall
thereafter pay the Non-Defaulting Party the Default Amount within ten (10) days of the date of
such invoice and any amounts which remain outstanding after such ten (10) day period shall bear
interest at the rate of eighteen percent (18%) per annum or the highest rate allowed by law,
whichever is less. Any Default Amount which remains outstanding more than ten (10) days after
presentation of an invoice for the same to the Defaulting Party shall constitute a continuing lien on
the Defaulting Party’s property set forth above which may be evidenced by the Non-Defaulting
Party recording a notice of lien with the Clerk and Recorder of Larimer County, Colorado. Such
lien shall be prior to all other liens and encumbrances against the Defaulting Party’s property
except the following: (i) liens and encumbrances recorded prior to the recording of a notice of
lien; (ii) any first deed of trust or first mortgage against the Lot owned by the Defaulting Party;
and (iii) the lien for real estate taxes and other governmental assessments or charges against the
Defaulting Party’s property. The Non-Defaulting Party may bring an action at law or in equity, or
both, against the Defaulting Party to recover the Default Amount, and may also proceed to
foreclose the lien against the Defaulting Party’s property. An action at law or in equity by the
Non-Defaulting Party against the Defaulting Party to obtain a money judgment for the Default
Amount may be commenced and pursued without foreclosing or in any way waiving the Non-
Defaulting Party’s lien. Foreclosure or attempted foreclosure of the Non-Defaulting Party’s lien
shall not be deemed an estoppel or otherwise preclude the Non-Defaulting Party from thereafter
foreclosing or attempting to foreclose its lien for any Default Amount outstanding.
6. Extraordinary and Negligent Use. Notwithstanding anything to the contrary herein,
the Lot 1 Owner and the Lot 3 Owner shall be responsible for, and shall hold the other party
harmless from and against any and all costs for damages to and repair or replacement of the Parking
Lot caused by the negligence or extraordinary use thereof by the Lot 1 Owner or the Lot 3 Owner,
as well as their employees, tenants, business patrons, invitees, licensees, guests and agents.
7. Insurance. The Lot 1 Owner and the Lot 3 Owner shall each obtain general liability
insurance for the Parking Lot on an occurrence basis with policy limits of not less than Five
Hundred Thousand Dollars ($500,000.00) per occurrence. Each party shall be named as an
additional insured on the other’s policy and provide a certificate of insurance demonstrating such
coverage upon demand. Such policy may not be canceled or amended without ten (10) days
written notice to the other party.
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8. Notice. Any notice or other communication required or allowed under this
Agreement shall be in writing and transmitted by either first class mail with postage prepaid
(addressed to the mailing address of the party to be notified appearing in the records of the Larimer
County Assessor). Such notice or other communication shall be deemed given, if mailed, three
days after being deposited in the United States Mail.
9. Attorney Fees. In the event of any default under this Agreement, the defaulting
party shall pay all costs and reasonable attorney’s fees incurred by the non-defaulting party as a
result of such default.
10. Runs with the Land. The Easements and the other provisions of this Agreement
shall be covenants running with each of the Lots and shall be binding upon and inure to the benefit
of the Owners and their respective heirs, personal representatives, successors and assigns, as well
as anyone who may subsequently have any right, title or interest in either of the Lots or any portion
thereof.
11. No Public Grant. This Agreement shall not create for the public in general any
interest in or right to use any part of the Parking Lot, nor shall it impair any access rights for a
provider of emergency services.
12. Termination and Subdivision. Lot 1 may be subdivided or redeveloped as
determined by the Lot 1 Owner so long as the Lot 3 Owner has access to and use of the Parking
Spaces as set forth in Section 1. If Lot 1 is subdivided, a portion of Lot 1 may be released from
the terms and provisions of this Agreement by the Lot 1 Owner recording a release certifying that:
i) a portion of Lot 1 being subdivided described in such instrument is not subject to this Agreement;
and 2) that this Agreement affects or is binding upon a another potion of Lot 1 such that the Lot 3
Owner has use of and access to the Parking Spaces. If the City of Fort Collins and all applicable
rules, ordinances and laws no longer require the use of the Parking Spaces or only require use of
one (1) parking space by Lot 3, this Agreement shall automatically be: (i) terminated in the case
no parking spaces are required and the parties shall record a release and termination of this
Agreement upon demand; or (ii) amended to reduce the number of Parking Spaces in the case only
one parking space is required and the parties shall record an amendment to this Agreement
reflecting such reduction. In no event will the number of parking spaces increase without the
consent of the Lot 1 Owner.
This Agreement is executed effective as of the date first set forth above.
[Signature Page Follows]
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OWNER:
525 W. OAK, LLC,
a Colorado limited liability company
By: Brinkman Entity Management, LLC,
A Colorado limited liability company, Manager
By: ______________________________________
Kevin Brinkman, Manager
STATE OF COLORADO )
)ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this ______ day of
______________________, 2019 by Kevin Brinkman as Manager of Brinkman Entity
Management, LLC, a Colorado limited liability company, Manager of 525 W Oak, LLC, a
Colorado limited liability company.
Witness my hand and official seal.
____________________________________
Notary Public
My commission expires:
____________________
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LENDER RATIFICATION
The undersigned, having a lien or security interest in Lots 1 and 3, West Oak Subdivision,
City of Fort Collins, County of Larimer, State of Colorado, approves, ratifies, confirms and consents
to the foregoing Parking Easement and Maintenance Agreement (“Agreement”) for the purpose
of subordinating the priority of such lien or security interest to the priority of the Agreement
notwithstanding the actual recording order of such documents.
Dated this _____ day of ____________, 2019.
FIRSTBANK
By: ______________________________
______________________________
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this _____ day of __________,
2019, by ____________________________, as ____________________ of FirstBank.
Witness my hand and official seal.
My commission expires: _______
Notary Public