HomeMy WebLinkAboutKING SOOPERS #146, MIDTOWN GARDENS MARKETPLACE - FDP210001 - SUBMITTAL DOCUMENTS - ROUND 4 - EASEMENTS (2)1
After recording, return to:
Jennifer K. Gothard
Dillon Companies, LLC
c/o The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202
RECIPROCAL EASEMENT AGREEMENT
THIS RECIPROCAL EASEMENT AGREEMENT (the “Agreement”) dated
_______________________, 2022 is between SOUTH COLLEGE SHOPS, LLC, a Colorado
limited liability company ("South College Shops") and DILLON COMPANIES, LLC., a Kansas
limited liability company ("Dillon"). South College Shops 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.Dillon is the owner of a tract of land described on Exhibit B, attached hereto and
incorporated herein by this reference (“Dillon Parcel”)
C.The Parties wish to grant to one another, and each wish to receive from the other,
easements over and across the South College Shops Parcel and the Dillon Parcel
(collectively the “Parcels”).
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.EASEMENT FOR PARKING AND INGRESS AND EGRESS
Subject to all existing easements, reservations, restrictions, covenants, agreements and
encumbrances of record, Dillon grants and conveys to South College Shops a perpetual, non-
exclusive easement as shown on Exhibit C attached hereto and incorporated herein by this
reference for the use and benefit of the owner of the South College Shops Parcel, and its tenants,
licensees, invitees, successors and assigns, for vehicular parking, upon the parking areas consisting
of twenty-six (26) spaces as shown on Exhibit C attached hereto (the "Parking Easement"). (the
"Parking Easement").
Dillon grants and conveys to South College Shops a perpetual, non-exclusive easement as
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shown on Exhibit C attached hereto and incorporated herein by this reference for the use and
benefit of the owner of South College Shops Parcel, and its tenants, licensees, invitees, successors
and assigns, for the purpose of vehicle ingress and egress over and upon the access ways, entrances
and exits as such area shall be developed as shown on Exhibit D attached hereto (the "West Drive
Lane Easement").
Subject to all existing easements, reservations, restrictions, covenants, agreements, and
encumbrances of record, South College Shops grants and conveys to Dillon a perpetual, non-
exclusive easement as shown on Exhibit E attached hereto and incorporated herein by this
reference for the use and benefit of the owner of the Dillon Parcel, and its tenants, invitees,
licensees, successor and assigns, for the purpose of automobile, bicycle and Fuel Truck Deliveries
(as defined and restricted below) ingress and egress over and upon the access ways, entrances and
exits as shown on Exhibit E attached hereto (the “Access Easement”). Fuel Truck Deliveries
access is limited to fuel truck deliveries to the fuel site on the Northeast corner of the Dillon Parcel
(the “Fuel Truck Deliveries”). Fuel Truck Deliveries, whether such trucks are owned or operated
by Dillon or not, shall use commercially reasonable efforts to utilize the Access Easement only
between the hours of 8:00 a.m. and 8:00 p.m., local Colorado time. Other delivery trucks for the
occupant of the Dillon Parcel may not use the Access Easement, except in emergency situations.
2.CONSTRUCTION AND MAINTENANCE
Dillon covenants and agrees to construct the Access Easement using heavy-duty pavement
for the scope of the work, which such construction and materials shall be subject to the reasonable
approval of South College Shops, and which approval shall not be unreasonably withheld,
conditioned, or delayed, and further shall be deemed given if reasonable objections, in writing, are
not delivered to Dillon within 30 days of receipt by South College Shops.
Dillon covenants and agrees to maintain in good condition and repair, or cause to be
maintained and kept in repair, the Parking Easement, the West Drive Lane Easement and the
Access Easement as defined within this Agreement. Dillon further covenants and agrees to
promptly pay the expenses of maintaining and repairing the Parking Easement, the West Drive
Lane Easement and the Access Easement. The maintenance responsibilities of Dillon under this
Agreement include by way of example and not limitation, general maintenance, repair, restoration,
replacement, resurfacing, repaving, restriping, cleaning, and snow removal. Dillon’s obligation
to maintain the Parking Easement, West Drive Lane Easement and Access Easement shall not
include repairing damage, not ordinary wear and tear, caused by the negligence or willful
misconduct of the owner of the South College Shops Parcel, its tenants, licensees, invitees,
successors or assigns which damage and repair shall be paid by South College Shops. In no event
shall South College Shops, its tenants, licensees, invitees, successors, or assigns be responsible for
the cost and expense of maintaining and repairing the Parking Easement, the West Drive Lane
Easement, and the Access Easement, except as stated herein. In the event that Dillon does not
satisfy its maintenance or repair obligations under this Agreement to the satisfaction of South
College Shops in its sole discretion, then Dillon shall be in default of this Agreement and the
Parties shall proceed in accordance with Section 7 herein. In satisfying its obligation to pay the
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cost and expense of the construction, repair and maintenance of the Access Easement, Dillon shall
not cause, nor suffer, any liens to be filed against the South College Shops Parcel. In the event
any lien is filed, then Dillon shall cause such lien to be removed at its sole cost and expense within
ten (10) days.
3.INDEMNIFICATION.
Dillon hereby agrees to indemnify and hold South College Shops harmless from and
against any and all claims, liability, loss, damage, cost or expense, including reasonable attorney’s
fees that may be incurred by or asserted against it as a result of the use of the Access Easement by
Dillon, its agents, employees, contractors, or licensees, except as results from the negligence or
willful misconduct of South College Shops, its tenants, employees or agents.
4.RESTRICTIONS
4.1 Financial Services. No part of the Dillon Parcel shall be used for a financial
institution, including but not limited to savings banks, thrift associations, investment brokerage
firms, mortgage companies and credit unions (collectively, “Financial Services”), provided that
this restriction shall cease to be in force or effect if the operator of any Financial Services business
located on the South College Shops Parcel fails to operate a Financial Services business, and that
failure continues for 365 consecutive days or longer subsequent to the opening for business of such
Financial Services business on the South College Shops Parcel, except when such failure is caused
by labor disputes (including strikes or lockouts), force majeure (including reconstruction as a result
of a fire or other casualty or government restriction) or conditions beyond the control of the
operator (“Financial Services Restriction”); provided, however the Financial Services Restriction
on the Dillon Parcel shall not prohibit operation of a Financial Services business located wholly
within a building (with no drive through or outside service access whatsoever) used as a food store
or food department, for the sale of groceries (which shall include, but not be limited to, packaged
foods and beverages, meal kits, household cleaning and laundry products and supplies, household
consumable products, and pet food and supplies), meats, seafood, produce, dairy products, bakery
products, alcoholic beverages or any of them for off-premises consumption.
4.2 Fuel. No part of the South College Shops Parcel shall be used for the sale of
automotive fuel, including without limitation gasoline, propane, natural gas, and diesel fuel, or any
technological evolution thereof (excluding electric vehicle charging), provided that this restriction
shall cease to be in force or effect if the operator of any business for the sale of automotive fuel
located on the Dillon Parcel fails to operate a business for the sale of automotive fuel, and that
failure continues for 365 consecutive days or longer subsequent to the opening for business of such
automotive fuel dispensing facility on the Dillon Parcel, except when such failure is caused by
labor disputes (including strikes or lockouts), force majeure (including reconstruction as a result
of a fire or other casualty or government restriction) or conditions beyond the control of the
operator.
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5.BARRIERS
Dillon may erect curbs, landscaping, and other improvements consistent with the attached
site plan. South College Shops may erect curbs, landscaping, and other improvements consistent
with an anticipated site plan for any subsequent development provided the Access Easement is
maintained. Dillon and South College Shops shall not prevent or materially interfere in any way
with the free flow and passage of vehicular, bicycle, or pedestrian traffic over, to, from and
between the South College Shops Parcel and the Dillon Parcel.
5.TRAFFIC EASEMENTS
The Dillon Parcel was created by the Plat of K-Mart Plaza recorded January 26, 1971 in
Book 1451 at Page 701, Larimer County Clerk and Recorder (“Plat”), and the Plat of Extension of
K-Mart Plaza recorded March 3, 1971 in Book K, Page 4, Larimer County Clerk and Recorder
“Extension Plat”). The South College Shops Parcel was created by the Extension Plat. The Plat
and the Extension Plat show traffic easements over parts of the Dillon Parcel and a part of the
South College Shops Parcel (“Traffic Easements”). The portion of the Traffic Easements on the
South College Shops Parcel was vacated by Resolution NO. PZ 04-01 dated January 15, 2004
recorded February 25, 2004 at Reception Number 2004-0017232, Larimer County Clerk and
Recorder (“Traffic Easement Vacation”). Dillon anticipates further subdivision of the Dillon
Parcel which may result in modification to those portions of the Traffic Easements located on the
Dillon Parcel. South College Shops anticipates further subdivision of the South College Shops
Parcel which may result in the creation of currently unknown traffic easements on the South
College Shops Parcel. The Parties agree that each Party may relocate, or create, those traffic
easements by subsequent platting or easement document provided that reasonable vehicular cross
access is maintained from the public right of way on the southern boundary of the Dillon Parcel to
the northern boundary of the South College Shops Parcel.
6.DEFAULT
If there is a failure by either Party to perform, fulfill or observe any agreement contained
within this Agreement, to be performed, fulfilled or observed by it, or in situations involving
potential danger to the health or safety of persons in, on or about or substantial deterioration of the
South College Shops Parcel or the Dillon Parcel, or any portion or any part thereof, which continue
for thirty (30) days after the date of written notice from the non-defaulting Party, the non-defaulting
Party may, at its election, cure such failure or breach on behalf of the defaulting Party, provided
however that if the nature of the default is such that it reasonably takes longer than thirty (30) days
to cure, then as long as the defaulting Party is using ongoing commercially reasonable efforts to
cure such default, then the non-defaulting Parties agree not to exercise their self-help rights
described herein. The actual amount which the Party so electing shall expend for such purpose, or
which shall otherwise be due by either Party to the other, shall be paid to the Party to whom due
no later than thirty (30) days after 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
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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.
7.LIABILITY INSURANCE
The Parties, with respect to its parcel only, shall maintain or cause to be maintain in full
force and effect at such Party’s sole cost and expense, a policy of commercial general liability
insurance, naming the other Party as an additional insured and providing coverage with a combined
bodily injury, death, and property damage limit of at least Two Million Dollars ($2,000,000) per
occurrence. At least annually, each Party will provide the other with certificates of insurance to
provide evidence of such insurance. If a Party, through its parent company, seeks to self-insure
this obligation, then such Party may direct the other Party to a website where a memorandum of
insurance may be viewed and/or printed. All certificates of insurance must provide that the
coverage referred to herein shall not be modified or cancelled without at least thirty (30) days’
notice to each additional insured thereunder.
8.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 Dillon and South College Shops, their successors and assigns, and the tenants,
licensees, concessionaires, mortgagees in possession, customers and business invitees of each
party.
9.COVENANTS OF TITLE AND QUIET ENJOYMENT
Each Party warrants that they have good and indefeasible fee simple title to the respective
parcel, and each Party warrants and will defend the title to the easement premises owned by the
respective Parties hereto. Each Party will defend the Party holding the servient interest against
any damage and expense which the servient interest may suffer by reason of any lien,
encumbrance, or restriction placed on the parcel or easement premises by the Party holding the
dominant interest.
10. TERMINATION OF LIABILITY; AMENDMENT
Whenever a transfer of ownership of either parcel takes place, the transferor will not be
liable for a breach of this Agreement occurring after a transfer except that the parties will remain
liable upon a transfer of its interest to a licensee or any affiliated entity. The transferee assumes
the liability of the transferor under this Agreement. This Agreement may be amended, vacated,
released, or terminated in whole or in part by an instrument executed by both Parties and recorded
with the Clerk and Recorder of Larimer County, Colorado.
11. APPLICABLE LAW
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This Agreement shall be interpreted and enforced in accordance with the laws of the State
of Colorado.
12. 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 Dillon:
The Kroger Co.
Attn: Jennifer K. Gothard
1014 Vine Street
Cincinnati, Ohio 45202
Email:Jennifer.gothard@kroger.com
With a copy to:
Montgomery Little & Soran, P.C.
Attn: James J. Soran, III
5445 DTC Parkway, Suite 800
Englewood, Colorado 80111
Email:jsoran@montgomerylittle.com
If to South College Shops:
South College Shops, LLC
Attn: Steve Schroeder
One Aspen Drive, #85
Loveland, Colorado 80538
With a copy to (which shall not continue notice):
Johnson Muffly & Dauster, PC
Attn: Jeffrey J. Johnson
323 S. College Avenue, Suite 1
Fort Collins, Colorado 80524
Email:jjohnson@nocolawgroup.com
Either party may lodge written notice of a change of address with the other. 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 South College Shops.
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13. NON-OPPOSITION; RESIDENTIAL USE REDEVELOPMENT. Dillon acknowledges
that all, or a portion of, the South College Shops Parcel is likely suitable for multifamily or mixed-
use redevelopment, and that South College Shops is granting the Access Easement in partial
consideration for Dillon’s recognition of this multifamily or mixed-use redevelopment potential.
Dillon acknowledges and recognizes that reasonable use of the Parking Easement to support
multifamily or mixed-use redevelopment is a material part of the consideration granted to South
College Shops for the execution and delivery of this Agreement; provided, however, that South
College Shops, or any of its affiliates’ or successors in interest, use of the Parking Easement does
not materially interfere with Dillon’s use and enjoyment of the Dillon Parcel for its intended use.
To indicate their consent to this Agreement, the parties hereto have executed this document
on the date first mentioned herein.
[Signatures on following pages]
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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 _____________,
2020, 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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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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EXHIBIT A
SOUTH COLLEGE SHOPS PARCEL
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EXHIBIT B
DILLON PARCEL
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EXHIBIT C
PARKING EASEMENT
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EXHIBIT D
WEST DRIVE LANE EASEMENT
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EXHIBIT E
ACCESS EASEMENT