HomeMy WebLinkAboutLegal - Easement - 08/15/2022 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 August
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 "Par1y" 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 not to exceed thirty-six (36)
consecutive hours, upon the parking areas consisting of twenty-six (26) spaces as shown on
Exhibit C attached hereto (the "Parking Easement"). Dillon's, or any of its affiliates or
successors in interest shall not designate the Parking Easement for employee parking or a parking
1
area for delivery vehicles.
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 D 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 vehicular traffic (specifically excluding
tractor-trailer semi-trucks, commercial trucks, and service vehicles) ingress and egress over and
upon the access ways, entrances and exits as shown on Exhibit D attached hereto (the "Access
Easement'); provided, however, the Access Easement area as shown on Exhibit D may be used
for Fuel Truck Deliveries (as defined and restricted below). Fuel Truck Deliveries (ingress and
egress)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 will enter the Dillon Parcel from College
Avenue, turn north along the west side of the fuel site, then turn east onto the Access Easement
along the north side of the fuel site. To exit the fuel site Fuel Truck Deliveries must proceed one-
way west within the Access Easement to obtain egress access across easements on the western
boundary of the Dillon Parcel continuing to the public road known as West Drake Drive. Fuel
Truck Deliveries,whether such trucks are owned or operated by Dillon or not,shall use 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 for short-
term emergency, life and safety 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 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 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 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 and the Access Easement,
except as stated herein. In the event that Dillon does not satisfy its maintenance or repair
2
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 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 drive-through automatic teller machine("ATM")facilities,
banking, savings banks, thrift associations, investment services, mortgage lending and credit
unions (collectively, "Financial Services"), provided that this restriction shall cease to be in force
or effect if any 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"). The Financial Services Restriction is for the benefit of the South College Shops
current and subsequent owners, its tenants, licensees, invitees, successors, or assigns. 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
3
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.
5. OTHER IMPROVEMENTS
Each Party has an unrestricted right at any time and from time to time, at its sole cost, to
erect curbs, landscaping, and other improvements on their respective Parcels consistent with the
terms of this Agreement.
6. 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 modification of those portions of the Traffic Easements located on
the South College Shops Parcel and the granting of currently unknown traffic, pedestrian and
utility easements on the South College Shops Parcel. Each Party has an unrestricted right at any
time and from time to time, at its sole cost,to modify and relocate such Traffic Easements on such
Party's parcel, and to create new easements and traffic patterns for the exclusive use of their
respective Parcels, by subsequent platting or separate 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.
7. 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
4
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
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.
8. 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.
9. 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.
10. 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.
11. TERMINATION OF LIABILITY; AMENDMENT
Whenever a transfer of ownership of either parcel takes place, the transferor will not be
5
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.
12. APPLICABLE LAW
This Agreement shall be interpreted and enforced in accordance with the laws of the State
of Colorado.
13. 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.�,,othardnkrouer.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: jjolmsonnnocolaweroup.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.
6
14. 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,not to exceed thirty-six(36)consecutive
hours, 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, and that Dillon, or any of its affiliates or successors in
interest, use of the property subject to the Parking Easement does not materially interfere with
South College Shops' use and enjoyment of the Parking Easement 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]
7
i
DILLON COMPANIES,LLC,a
Kansas limited liability company
I C rls me . eatle
Itts:s: WL6 i
Ice President G
.eR•
STATE OF OHIO )
ss.
COUNTY OF HAMILTON )
The foregoing instrument was acknowledged efore me this day of I USt" ,
2022, byC o ,4, -S,lohr A 4-!r , as , t, j of Dillon Companies,
LLC, a Kansas limited liability company,on behalf of the company.
WITNESS my hand and official seal.
i
My commission expires:
r -
`� 9� '• Deborah Moore
g -0` Notary Public,State of Ohio
My Commission Expires: Notary Public
April 24,2024
8
SOUTH COLLEGE SHOPS,LLC,a
Colorado limited liability company
By:
Its:
STATE OF Cc,lc*—A-,;>O }
)ss.
COUNTY OF yy
The foregoing instrument was acknowledged before me this ZZ day of A
2022,by ST'EVE: t&f j[� _ of South College Shops,LLC, a
Colorado limited liability company.
WITNESS my hand and official seal.
My commission expires: T'U E Z 20
CARRIEANN PENROD ubllc
NOTARY PUBLIC-STATE OF COLORADO
NOTARY ID 19954007747
MY COMMISSION EXPIRES JUN 24,2023
9
EXHIBIT A
SOUTH COLLEGE SHOPS PARCEL,
Tract I of Extension of K-MART PLAZA, County of Larimer,State of Colorado, excepting
therefrom that parcel of land has conveyed to the City of Fort Collins,Colorado in Deed
Recorded May 13,2011 at Reception No. 20110028621,
10
EXHIBIT B
DILLON PARCEL
Lot 1,Lot 2 and Lot 3,Midtown Gardens Marketplace, City of Fort Collins,County of Larimer,
State of Colorado.
11
nus stlEFT
% I
ov
to
ITYMAP
SCALE: I' =60V
EXHIBIT C N
0 20 50 100
SCALE V0001
LOT
I
I
I
I
I
I I I UOSIONN OFK—MART : LOt 4 I
PLAZA ':X—Vmf P:
� 1
pyc7Vc,WROPOSEO SNARED PARKING SPACES 'l
KING SOOPERS#146 PmjectNo: KING SOOPERS#146
T
FORT COLLINS,CO Drawn MRB Galloway
Checked By. CTS 6162a VA-b yq 6ub381
PARKING EASEMENT- EXHIBIT C Hate: 05)2612022 307tMl86d:WW r,U6.an
EXHIBIT U
ACCESS EASEMENT
13
LEGAL DESCRIPTION
PERMANENT ACCESS EASEMENT
A PERMANENT ACCESS EASEMENT OVER LOT 1,EXTENSION OF K-MART PLAT RECORDED AT BOOK 5,
PAGE 4 IN THE LARIMER COUNTY CLERK AND RECORDERS OFFICE LOCATED IN PART OF THE
SOUTHEAST QUARTER OF SECTION 23,TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE 6TH P.M.,CITY OF
FORT COLLINS, LARIMER COUNTY, COLORADO, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 1,MONUMENTED BY A MAG NAIL WITH 1-1/2"
STAINLESS STEEL WASHER,STAMPED PLS 37067;
THENCE 1\189028'09"W,A DISTANCE OF 647,85 FEET ON THE SOUTH LINE OF SAID LOT 1 TO THE
SOUTHWEST CORNER THEREOF;
THENCE N01°22'03"E,A DISTANCE OF 24.00 FEET ON THE WEST LINE OF SAID LOT 1;
THENCE S89°28'ffli,A DISTANCE OF 647.43 FEET TO THE EAST LINE OF SAID LOT 1;
THENCE S00°22'28"W,A DISTANCE OF 24.00 FEET ON SAID EAST LINE TO THE POINT OF BEGINNING,
PARCEL CONTAINS 15,542 SQUARE FEET OR 0.357 ACRES.
BASIS OF BEARING:THE EAST LINE OF THE SOUTHEAST QUARTER OF SECTION 23,TOWNSHIP 7
NORTH, RANGE 69 WEST OF THE 6TH P.M.,LARIMER COUNTY,COLORADO,IS ASSUMED TO BEAR
NORTH 00°22'28°EAST,A DISTANCE OF 2640,62 FEET,MONUMENTED AT THE SOUTH END BY A 2-5-
ALUMINUM PIPE WITH 3"ALUMINUM CAP IN A RANGE BOX STAMPED LS 17495,1991 AND
MONUMENTED AT THE NORTH END BY A 2,5°ALUMINUM CAP IN A RANGE BOX,STAMPED LS 17495,
1995,WITH ALL OTHER BEARINGS REFERENCED THERETO.
EXHIBIT 1 IS ATTACHED HERETO AND IS ONLY INTENDED TO DEPICT EXHIBIT D-LEGAL
DESCRIPTION.IN THE EVENT THAT EXHIBIT D CONTAINS AN AMBIGUITY,EXHIBIT 1 MAY BE USED TO
RESOLVE SAID AMBIGUITY:
o L
37
r
PREPARED FOR AND ON BEHALF OF GALLOWAY
BY FRANK A.KOHL,PLS#37067
July 21.2022
WKtng Seupers-City Markel=.Fort Collfns- KSS000146-416 College li Drake)SumeylDocumanlslLegal DesuipilonsMS146-Permanent
Acoes sFa Bement-Lat 1.do 0
EXHIBIT 1
_ LEGEND At
AUOUOT CORNER (AS DESCRIBER) N
FOUND MONUMENT(AS DESCRIBED)
0 15 30
--® PERMANENT ACCESS EASEMENT
——— PLSS ALIQOUT LINE ! .
ALL LINEAL UNITS ARE US SURVEY FEET SCALE:1'=30'
EAST QUARTER CORNER,
SECTION 23,
T. 7 N.,R.69 W.
FOUND 2,5' ALUMINUM CAP
IN RANGE BOX
STAMPED IS 17495'19951
I
LOT 1
EXTENSION OF
K—MART PLAZA
BOCK 5•PAGE 4
I �
1 Q
U
PERMANENT
ACCES�SASE�A+IENT
0. 7 roc 70'----- —�
N6978WIN 647k I
— — — — — — — — — — — — — — —I POINT OF BEGINNING
LOT 2 LOT 4 FOUND MAG NAIL o
EXTENSION OF K-MART PLAZA VW;TIi 1-1/2'STAINLESS `�
K—MART PLAZA 600K K. PAGE 4 STEEL WASHER, m
BOOK 5, PACE 4 1 ( STAMPED"PLS 37067' N ts
I
)
I
,
I
SOUTHEAST CORNER SECTION 23
FOUND 2.5' ALUMINUM PIPE
WTH 3' ALUMINUM CAP
IN RANGE BOX
STAMPED 'LS 17495', 1991'
PART OF LOT 1, EXTENSION OF K-MART PLAZA Project No: lcss0000ts.o2
LOCATED IN THE SOUTHEAST QUARTER, SECTION 23 Drawn By: — AN Gallovivay
T.7 N„R.69 W.BTH P.M.,CITY OF FORT COLLINS
LARIMER COUTY,COLORADO Checked By: FAK s2asn�•art�P,ewsn•.21D
PERMANENT ACCESS EASEMENT EXHIBIT Dale:
�.7121l2022 oroero3aoaea:,:r•r...,,