HomeMy WebLinkAboutKING SOOPERS #146, MIDTOWN GARDENS MARKETPLACE - FDP210001 - SUBMITTAL DOCUMENTS - ROUND 4 - EASEMENTSEASEMENT AND ACCESS AGREEMENT
THIS EASEMENT AND ACCESS AGREEMENT (the “Agreement”), dated
_______________________, 2021 is between SOUTH COLLEGE SHOPS, LLC, a Colorado
limited liability company (“South College Shops”), GKT UNIVERSITY PLAZA II, L.L.C., a
Missouri limited liability company (“GKT University”), and DILLON COMPANIES, LLC., a
Kansas limited liability company (“Dillon”). South College Shops, GKT University, and Dillon
are individually a “Party” and collectively the “Parties.” The following statements are a material
part of this Agreement:
A. South College Shops is the owner of a tract of land described on Exhibit A,
attached hereto and incorporated herein by this reference (“South College Shops Parcel”).
B. GKT University Plaza II, L.L.C. is the owner of a tract of land described on Exhibit
B, attached hereto and incorporated herein by this reference (“GKT University Parcel”).
C. Dillon is the owner of a tract of land described on Exhibit C, attached hereto and
incorporated herein by this reference (“Dillon Parcel”).
D. The South College Shops Parcel, GKT University Parcel, and Dillon Parcel are
collectively the “Shopping Center.”
E. The Shopping Center was created by the Plat of the University Shopping Center,
recorded November 16, 1959, in Plat Book U, Page 14, Larimer County Clerk and
Recorder (the “Shopping Center Plat”).
F. The South College Shops Parcel was created by the Plat of Extension of K-Mart
Plaza, recorded March 3, 1971, in Plat Book K, Page 4, Larimer County Clerk and Recorder
(“K-Mart Extension Plat”).
G. The GKT University Parcel was created by the Plat of Whole Foods Center,
recorded April 9, 2004, in Plat Book W at Page 569, Larimer County Clerk and Recorder
(“Whole Foods Plat”).
H. The Dillon Parcel was created by the Plat of K-Mart Plaza, recorded January 26,
1971, in Plat Book K, Page 3, Larimer County Clerk and Recorder (“K-Mart Plat”).
I. The Shopping Center Plat, K-Mart Extension Plat, Whole Foods Plat, and K-Mart
Plat are collectively the “Plats.”
J. The Plats show various easements for ingress, egress and passage for pedestrian
and vehicular traffic.
K. The Shopping Center was also subject to an Agreement recorded January 8, 1963
in Book 1193, Page 376, Larimer County Clerk and Recorder, as amended from time to
time (the “Agreement”), which provided for every owner of land in the Shopping Center
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to grant to every other owner mutual, reciprocal, non-exclusive easements for pedestrian
and vehicular traffic over the Common Areas in the Shopping Center. As defined in the
Agreement, “Common Areas” included, without limitation, walkways, perimeter roads and
access roads.
L. Consistent with the Agreement, the Shopping Center includes walkways, perimeter
roads and access roads which accommodate pedestrian and vehicular traffic to insure
ingress, egress and passage throughout the Shopping Center.
M. The Agreement has expired according to its terms, and the Parties wish to enter into
this Agreement to ratify, grant, and confirm to one another, easements within the Shopping
Center for ingress, egress and passage for pedestrian and vehicular traffic.
THEREFORE, in consideration of the covenants contained in this Agreement and other
good and valuable consideration, receipt of which is acknowledged, the following grants,
agreements, covenants and restrictions are made:
1. ACCESS EASEMENT
Each Party grants and conveys to each other Party perpetual, non-exclusive easements for
the use and benefit of the owners of the Shopping Center, and its tenants, invitees, licensees,
successor and assigns, for the purpose of pedestrian and vehicular ingress, egress and passage over,
upon and through the access ways, entrances and exits within the Shopping Center, as they may
exist from time to time (the “Access Easement”). All Parties agree to preserve at least two such
easements as follows:
(a) One easement along the West _____ feet of the Shopping Center for the use of
delivery and service vehicles, which shall be at least _____ feet in width, and
situated within the “Delivery Corridor” shown on Exhibit D attached hereto and
incorporated herein by this reference; and
(b) One standard vehicular easement for pedestrian and vehicular use permitting
continuous traffic flow and passage from Drake Dr. northerly through the Shopping
Center to at least Columbia Dr, which shall be at least thirty (30) feet in width, and
situated within the “General Access Corridor” shown on Exhibit D.
2. MAINTENANCE
Each Party covenants and agrees to maintain in good condition and repair, or cause to be
maintained and kept in repair, the Access Easement as defined within this Agreement. Each Party
further covenants and agrees to pay the expenses of maintaining and repairing the Access Easement
except for damage, not ordinary wear and tear, caused by the negligence or actions of any other
Party, its tenants, licensees, invitees, successors or assigns, which damage and repair shall be paid
by such other Party.
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3. MODIFICATIONS AND BARRIERS
The Parties agree that each Party may relocate the Access Easement on their Parcel by
subsequent platting or easement document, provided that reasonable vehicular cross access from
the southern boundary to the northern boundary of the Shopping Center is maintained within the
Delivery Corridor and General Access Corridor in accordance with the terms of this Agreement.
Each Party may erect curbs, landscaping, and other improvements on their Parcel, provided,
however, no Party shall prevent or materially interfere in any way with the free flow and passage
of vehicular and pedestrian traffic over, to, through and between the Shopping Center as
contemplated by this Agreement.
4. DEFAULT
If there is a failure by any Party to perform, fulfill or observe any agreement contained
within this Agreement, to be performed, fulfilled or observed by it, continuing for thirty (30) days,
or in situations involving potential danger to the health or safety of persons in, on or about the
Shopping Center, or any portion or any part thereof, in each case after written notice, any other
Party may, at its election, cure such failure or breach on behalf of the defaulting Party. Any amount
which the Party so electing shall expend for such purpose, or which shall otherwise be due by any
Party to any other Party, shall be paid to the Party to whom due on demand, without contest, upon
delivery of its invoice, together with interest at the lower of (1) the rate of twelve percent (12%)
per annum, or (2) the maximum rate permissible from time to time under applicable law, from the
date of the expenditure or the date when it shall have become due to the date of payment in full.
The provisions of this paragraph shall be in all respects subject and subordinate to the lien of any
mortgages or deeds of trust at any time or from time to time on the land of the defaulting Party and
the rights of the holder or holders of any mortgages or deeds of trust.
5. COVENANTS RUNNING WITH THE LAND
The rights contained within this Agreement shall run with the land and inure to and be for
the benefit of the Parties, their respective successors and assigns, and the tenants, licensees,
concessionaires, mortgagees in possession, customers and business invitees of each Party.
6. COVENANTS OF TITLE AND QUIET ENJOYMENT
Each Party warrants that they have good and indefeasible fee simple title to their respective
parcel, and each Party warrants and will defend the title to the easement premises owned by the
respective Parties hereto and will defend the Party holding the servient interest against any damage
and expense which the servient Party may suffer by reason of any lien, encumbrance, restriction
or defect in the title or description of the easement premises.
7. TERMINATION OF LIABILITY
Whenever a transfer of ownership in the Shopping Center takes place, the transferor will
not be liable for a breach of this Agreement occurring after a transfer except that a Party will
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remain liable upon a transfer of its interest to a licensee or subsidiary corporation. The transferee
assumes the liability of the transferor under this Agreement.
8. NOTICE
All notices shall be sent by certified mail, return receipt requested, to the following
addresses and shall be deemed given when placed in the mail:
If to South College Shops:
If to GKT University:
If to Dillon:
The Kroger Co.
Attn: Jennifer K. Gothard
1014 Vine Street
Cincinnati, Ohio 45202
Email: Jennifer.gothard@kroger.com
A Party may lodge written notice of a change of address with the other Parties. Dillon will bear
the expense of recording this Agreement with the Clerk of Larimer County, Colorado, and when
done will provide a copy bearing the recording information to the other Parties.
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To indicate their consent to this Agreement, the parties hereto have executed this document
on the date first mentioned herein.
SOUTH COLLEGE SHOPS, LLC, a
Colorado limited liability company
By:
Its:
STATE OF ________________ )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this _____ day of _____________,
2020, by _____________________ as _____________________ of South College Shops, LLC, a
Colorado limited liability company.
WITNESS my hand and official seal.
My commission expires: ___________________
_____________________________
Notary Public
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GKT UNIVERSITY PLAZA II, L.L.C., a
Missouri limited liability company
By:
Its:
STATE OF ________________ )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this _____ day of _____________,
2021, by _____________________ as _____________________ of GKT University Plaza II,
L.L.C., a Missouri limited liability company.
WITNESS my hand and official seal.
My commission expires: ___________________
_____________________________
Notary Public
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DILLON COMPANIES, LLC, a
Kansas limited liability company
By:
Its:
STATE OF OHIO )
) ss.
COUNTY OF HAMILTON )
The foregoing instrument was acknowledged before me this _____ day of _____________,
2021, by _______________________ as ________________________ of Dillon Companies,
LLC, a Kansas limited liability company, on behalf of the company.
WITNESS my hand and official seal.
My commission expires: ___________________
_____________________________
Notary Public
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EXHIBIT A
SOUTH COLLEGE SHOPS PARCEL
Tract 1 of the Extension of K-Mart Plaza, County of Larimer, State of Colorado,
EXCEPTING THEREFROM that parcel of land as conveyed to the City of Fort Collins, Colorado
in General Warranty Deed recorded May 13, 2011 at Reception No. 201100289621.
FOR INFORMATIONAL PURPOSES: 2413 S. College Ave./APN: 9723411001
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EXHIBIT B
GKT UNIVERSITY PARCEL
Parcel Two-A:
Lot 1, Whole Foods Center according to the plat thereof recorded April 9, 2004 at Reception No.
20040033605, County of Larimer, State of Colorado,
EXCEPTING THEREFROM that parcel of land as conveyed to the City of Fort Collins, Colorado
in Special Warranty Deed recorded June 3, 2011 at Reception No. 20110032597.
Parcel Two-B:
A Parking Easement and an Access Easement created by and reserved in Special Warranty Deed
recorded June 3, 2011 at Reception No. 201100321597 in the records of the County Clerk and
Recorder, County of Larimer, State of Colorado.
FOR INFORMATIONAL PURPOSES: 2201 S. College Ave./APN: 9723441001
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EXHIBIT C
DILLON PARCEL
Tract 2 of K-Mart Plaza, and all of Tract 2 of the Extension of K-Mart Plaza;
Except that portion taken and condemned by the City of Fort Collins, Colorado, a Municipal
Corporation, by Rule and Order recorded December 27, 1996 at Reception No. 96092189, and
further excepting that parcel as conveyed to the City of Fort Colllins, Colorado in Deed recorded
August 28, 2014 at Reception No. 20140048656, County of Larimer, State of Colorado.
FOR INFORMATIONAL PURPOSES: 2535 S. College Ave./APN:
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EXHIBIT D
DELIVERY AND GENERAL ACCESS CORRIDORS
Attached