HomeMy WebLinkAboutMULBERRY CONNECTION - FDP200030 - - ACCESS, UTILITY, DRAINAGE EASEMENTUPON RECORDING, RETURN TO:
Poudre Valley Co-Operative Association, Inc. 225 N W Frontage Road Fort Collins CO 80524 Attn: Mr. Gordon Ledall
DECLARATION OF ACCESS, DRAINAGE AND UTILITIES EASEMENTS
WHEREAS, Poudre Valley Co-Operative Association, Inc., a Colorado corporation (“Declarant”), is the owner of the land legally described on Exhibit A hereto (“Lot 1”) and the land legally
described on Exhibit B hereto (“Lot 2”), such exhibits being incorporated into and a part of this instrument (this “Declaration”) for all purposes; and
WHEREAS, Lot 1 and Lot 2 (collectively the “Lots” and each a “Lot”) are adjoining and each a part of the property legally described on Exhibit C hereto (the “Master Tract”), and Declarant
desires to establish certain rights and obligations between the Lots; and
WHEREAS, the Lots are to be created by Redman Subdivision plat recorded on or around even date herewith, an unsigned, final copy of such plat being attached as Exhibit D hereto.
NOW, THEREFORE, in consideration of the foregoing, $10.00 and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Declarant hereby
declares as follows:
Access Easements. Declarant hereby creates and establishes for the benefit of the Lots, the owner of each lot or any portion thereof from time to time (each an “Owner” and collectively
the “Owners”), and each Owner’s respective agents, tenants, subtenants, customers, invitees, employees, contractors, guests and licensees of the business or businesses operating on the
Lots (the “Permitees”), perpetual, mutual and non-exclusive cross access easements for the purposes of vehicular (excluding parking) and pedestrian ingress and egress on, over, upon
and across all driveways and curb cuts existing from time to time on the Lots (the “Access Easement Areas”). Each Owner may, from time to time, and at each such Owner’s sole cost and
expense, re-locate and/or re-configure the Access Easement Areas on such Owner’s Lot (or any portion thereof) without consent from any other Lot Owner, provided such re-location and/or
re-configuration shall be in generally the same vicinity, and not result in a material adverse effect, when compared to such Access Easement Areas existing immediately prior thereto.
Drainage Easements. Declarant hereby creates and establishes for the benefit of the Lots, the Owners, and each Owner’s respective Permitees, perpetual, mutual and non-exclusive cross
drainage easements for the purposes of diversion and transportation of storm water, flood water and drainage between Lots.
Utility Easements. Declarant hereby creates and establishes for the benefit of the Lots, the Owners, and each Owner’s respective Permitees, perpetual, mutual and non-exclusive cross
utilities easements for the construction, operation, maintenance, and replacement of underground utilities such as water, sanitary sewer, and storm drainage lines and appurtenances and
dry utilities such as electrical power, natural gas, communication, cable TV and data lines and appurtenances.
Reasonable Use of Easements. The easements hereinabove granted shall be used and enjoyed by each benefitted Owner and such Owner’s Permittees in such a manner so as not to unreasonably
interfere with, obstruct or delay the conduct and operations of the business or businesses of any other Owner or such Owner’s Permittees at any time conducted on such other Owner’s Lot,
including, without limitation, so as not to unreasonably interfere with access to and from said business or businesses and the receipt or delivery of merchandise in connection therewith.
Maintenance. The Owner of a Lot (or portion thereof) shall, at no cost or expense to the Owner or Owners of any other Lot (or portion thereof), maintain or cause to be maintained in
good condition and repair the improvements from time to time located (the “Easement Improvements”) on the easement areas covered by this Declaration (the “Easement Areas”), if and to
the extent located on such Owner’s burdened Lot. Notwithstanding anything to the contrary, each Owner of a benefitted Lot shall be responsible for all costs and expenses necessary to
repair damage to the Easement Areas on a burdened Lot caused by the negligence or intentional acts of such Owner or such Owner’s Permitees.
Indemnification. To the maximum extent allowable by law, each Owner whose Lot is benefitted by an easement granted herein (“Indemnifying Owner”) shall indemnify, defend and hold each
other Owner whose Lot is burdened by such easement (whether one or more, “Indemnified Owner”), and such Indemnified Owner’s Permitees, harmless from and against all claims, liabilities
and expenses (including reasonable attorneys’ fees and court costs) relating to accidents, injuries, loss, or damage of or to any person or property arising from the negligence or intentional
misconduct of such Indemnifying Owner or such Indemnifying Owner’s Permittees use of such easement.
Capital Improvements. Subject to express obligations pursuant to the “Maintenance” and “Indemnification” paragraphs above, each Owner shall be solely responsible for the cost and expense
of erecting and installing Easement Improvements on such Owner’s Lot or portion thereof.
Taxes. Each Owner shall: (a) pay, prior to delinquency, all real property taxes and assessments levied or assessed against any Lot or portion thereof owned by such owner (and improvements,
including any Easement Improvements, located thereon) imposed by any lawful taxing jurisdiction (“Taxes”), subject, however, to the right of any such Owner to contest the amount or validity
of Taxes in accordance with all applicable laws, ordinances and regulations; and (b) defend, indemnify and hold each other Owner harmless from and against any and all claims incurred
or suffered by any and each such other Owner by reason of the indemnifying Owner’s failure to observe and perform such Owner’s duties and obligations pursuant to clause (a) preceding.
Insurance. Each Owner shall be responsible for procuring and maintaining, at such Owner’s sole cost and expense, with respect to such Owner’s Lot or portion thereof, insurance of a
type and in an amount not less than: (i) Commercial General Liability insurance (including property damage, bodily injury and personal injury coverage) in amounts of $1,000,000.00 per
occurrence $2,000,000.00 in the aggregate on a per location basis in primary coverage, with an additional $5,000,000 per occurrence and $5,000,000 in the aggregate on a per location
basis in umbrella/excess coverage. (ii) Contractual liability insurance sufficient to cover each Owner’s indemnity obligations hereunder (but only if such contractual liability insurance
is not already included in each Owner’s commercial general liability insurance policy and umbrella/excess liability insurance policy). (iii) Worker’s compensation insurance with statutory
limits required by the state in which these Premises are located, including provisions for voluntary benefits as required in labor agreements, if applicable (or such larger amount if
required by local statute) and employer’s liability insurance of $1,000,000 (if applicable). (iv) Commercial auto liability insurance (if applicable) covering automobiles owned, hired
or used by each Owner in carrying on its business with limits not less than $1,000,000 combined single limit for each accident. The liability coverages shall name each other Owner, their
respective property managers, the asset management companies and if required by the other Owner in writing their mortgage company as additional insureds, and waive subrogation in favor
of each such other Owner and such other Owner’s insurer. Each Owner shall furnish the other Owners with a certificate evidencing such insurance upon request. All such insurance policies
shall be issued by companies with an A.M. Best rating of not less than A-:VIII or better. The insurance required to be maintained hereunder may be provided under blanket policy, provided
such policy otherwise complies with the requirements of this Declaration. Notwithstanding anything to the contrary, these insurance requirements shall not apply when the Owner or Owners
of Lot 1, on the one hand, and the Owner or Owners of Lot 2, on the other, are the same.
Self-Help. In addition to all other remedies available at law or in equity, upon the failure of an Owner to cure a breach of such Owner’s obligations hereunder within thirty (30) days
following written notice thereof by an Owner, any Owner shall have the right to perform such obligation contained in this declaration on behalf of such defaulting Owner and be reimbursed
by such defaulting Owner upon demand for the reasonable costs thereof together with the current U.S. (federal) prime rate, plus two percent (2%) (such rate of interest, hereinafter the
“Default Rate”, not to exceed, in any event, the maximum rate of interest allowed by law). Notwithstanding the foregoing, in the event of (i) an emergency, (ii) blockage or material
impairment of the easement rights, and/or (iii) the unauthorized parking of vehicles, the affected Owner may immediately cure the same and be reimbursed by the other Owner upon demand
for the reasonable cost thereof, together with interest at the Default Rate.
Amendment. This Declaration may be amended, altered, revoked or terminated at any time by an instrument executed by all of the Owners. Notwithstanding the foregoing, Declarant may
unilaterally amend this Declaration provided doing so does not cause a material adverse effect for Owners (other than Declarant, as applicable) or their Permittees.
No Merger. Notwithstanding that as of the date of this Declaration (or as of any future date) two or more Lots are (or may in the future be) owned by the same party, this Declaration,
and the benefits and burdens created hereby, will remain in effect and will not merge or terminate, despite such unitary ownership, unless and until amended or terminated by a written
agreement executed by all the then Owners of the Lots.
Successors and Assigns. The provisions of this Declaration shall be binding upon and inure to the benefit of the Owners and their respective successors and assigns in the ownership
of any Lot (or any portion thereof). The easements covered by this Declaration shall be appurtenant to the Lots and shall run with the land.
Rights of Lenders and Mortgagees. A breach of any of terms of this Declaration shall not defeat or render invalid the lien or charge of any mortgage or deed of trust which is subordinate
or inferior to this Declaration. The superiority of this Declaration shall be limited to the extent that title to any property acquired through sale under foreclosure of any mortgage
or deed of trust effected by powers of sale, judicial proceedings, or otherwise, shall be subject to all the charges and burdens affecting the Lots (or portion thereof) so foreclosed
as expressly set forth hereinabove.
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IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by its duly authorized representative.
Witness our hands and seals this ___ day of ________, 2021.
Poudre Valley Co-Operative Association, Inc.
________________________________________
By: Gordon Ledall
Title: President
State of Colorado )
) ss
County of Larimer )
The foregoing instrument was acknowledged before me this ___ day of __________, 2021, by Gordon Ledall as President of Poudre Valley Co-Operative Association, Inc., on behalf of said
corporation.
Witness my hand and official seal.
My commission expires: _____________________
_____________________________
Notary Public
EXHIBIT A
LOT 1
Lot 1 of the Redman Subdivision Plat, recorded under ___________ of the Larimer County real property records, an unsigned copy of such plat being enclosed as Exhibit D to this Declaration.
EXHIBIT B
LOT 2
Lot 2 of the Redman Subdivision Plat, recorded under ___________ of the Larimer County real property records, an unsigned copy of such plat being enclosed as Exhibit D to this Declaration.
EXHIBIT C
MASTER TRACT
EXHIBIT D
UNSIGNED PLAT
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