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FIRE AND EMERGENCY ACCESS
EASEMENT AGREEMENT
THIS FIRE AND EMERGENCY ACCESS EASEMENT AGREEMENT (“Agreement”), dated
May ___, 2023 (“Effective Date”), is made and entered into by MASON STREET FLATS, LLC, a
Colorado limited liability company (“Grantor”), and 209 CHERRY STREET, LLC, a Utah limited liability
company (“Grantee”), with reference to the following:
A. Grantor owns certain real property located at 210 Maple Street and 311 North Mason
Street, Fort Collins, Colorado which Grantor real property is more particularly described on Exhibit A
(collectively, the “Grantor Property”).
B. Grantee owns certain real property located at 209 Cherry Street, Fort Collins, Colorado,
which real property is adjacent to the Grantor Property and is more particularly is described on Exhibit B
(the “Grantee Property”) attached hereto and incorporated herein by reference.
C. As part of the approval of Grantee’s development plans for the Grantee Property, the City
of Fort Collins requires a fire and emergency access across the Grantor Property to the Grantee Property.
D. Grantee desires to obtain, and Grantor desires to grant to the Grantee, an easement across
the Grantor Property for fire and emergency personnel across the Grantor Property in accordance with the
terms of this Agreement. The placement of the access easement is shown on the site plan attached as
Exhibit C (“Easement Area”) and incorporated herein by this reference.
FOR GOOD AND VALUABLE CONSIDERATION, Grantor and Grantee declare as follows:
1. Grant of Easement. Grantor declares, grants, conveys, transfers and delivers to, and for
the benefit of, the Grantee, a permanent, nonexclusive, irrevocable easement in, over and across the Grantor
Property as described on Exhibit C, for the sole purpose of access by the City of Fort Collins and for access
by other local, state or federal emergency response agencies and any entity responding at the direction of
such an agency (collectively “Emergency Agencies”).
2. Grantor’s Reservation of Rights. Grantor reserves to itself, its tenants, successors and
assigns, forever, the right to use and to cross over or under the Easement Area, to place or grant any other
easements along, across, or under the Easement Area, and to otherwise make improvements to the Easement
Area, so long as those uses and improvements do not materially impair or diminish use by the Emergency
Agencies of the Easement Area. This Agreement grants an easement only as specifically set forth above
and grants no additional right of access, including pedestrian access, to the general public or Grantee to any
portion of the Easement Area that is conveyed by this Agreement. The foregoing Agreement shall in no
way be construed as a dedication of any roadway to the public.
3. Use. Grantee’s right to use the Easement Area shall be limited to access for emergency
purposes including, without limitation, fire access. Grantee will not commit or permit any waste upon the
Easement Area or in any manner deface or injure the Easement Area. Except for emergency purposes,
Grantee will not permit or allow any vehicles that belong to or are controlled by Grantee or Grantee’
employees, suppliers, shippers, customers, contractors or invitees to be driven on or parked on the Grantor
Property. Grantee will not service or store any vehicles on the Easement Area. If Grantee permits or allows
any of the prohibited activities described in this Section, then Grantor will have the right, upon 24 hours’
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notice, to remove or tow away the vehicle involved and charge the cost to the Permittees, which cost will
be immediately payable upon demand by Grantor.
4. Not a Public Dedication. Nothing contained in this Agreement will be deemed to be a
gift or dedication of any portion of the Grantor Property to or for the general public or for any public
purposes whatsoever, it being the intention of Grantor that this Agreement be strictly limited to and for the
purposes expressed in this Agreement.
5. Temporary Closure. Grantor reserves to the Owner of the Grantor Property (and the
easement granted herein is subject to) the right to close off the Easement Area for such reasonable period
or periods of time as may be legally necessary to prevent the acquisition of prescriptive rights by anyone
or to prevent the Easement Area from becoming a public thoroughfare; provided, however, prior to closing
off the Easement Area for such purpose, the Owner of the Grantor Property shall give written notice to the
Owner of the Grantee Property of its intent to do so and shall coordinate such closing with the Owner of
the Grantee Property so that there is no unreasonable interference to the Owner(s) of the Grantee Property
or its tenants, guests, customers or invitees.
6. Condition of Easement Area. Grantee accepts the Easement Area and all aspects of the
Easement Area in “as is”, “where is” condition, without warranties, either express or implied, “with all
faults”, including but not limited to both latent and patent defects, and the existence of hazardous materials,
if any. Grantee waives all warranties, express or implied, regarding the title, condition and use of the
Easement Area.
7. Insurance. Grantee will carry Commercial General Liability insurance with general
liability and automobile coverage limits of not less $1,000,000 each occurrence and $2,000,000 in the
aggregate. This insurance must be on an “occurrence” basis. Grantee will furnish Certificates of Insurance
to Grantor as evidence of this required insurance upon request. Grantor will be named as an additional
insured for the Commercial General Liability coverage required to be maintained by Grantee under this
Agreement. Except where prohibited by law, Grantee and its respective insurers waive all rights of recovery
or subrogation against Grantor and its subsidiaries, affiliates, officers, directors, employees, agents and
invitees.
8. Grantee’ Indemnity. Grantee will indemnify Grantor and its subsidiaries, affiliates,
officers, directors, employees, agents and invitees harmless from any claim, liability, and expense arising
from or in connection with the use of the Easement Area by Grantee and its Permittees, provided that the
indemnity will not apply to the extent that any claim, liability, expense, cost or judgment is caused by
Grantor’s gross negligence or willful misconduct.
9. Assignment. Grantee will not assign this Agreement without the prior written consent of
Grantor, which consent Grantor will not unreasonably withhold, delay, or condition.
10. Notices. All notices, demands, requests, and other communications required or permitted
under this Agreement must be in writing, and will be deemed to be delivered, whether actually received or
not, three days after deposit in a regularly maintained receptacle for the United States mail, registered or
certified, or another commercially acceptable means requiring a return receipt, postage prepaid, addressed
as follows:
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If to Grantee: Cherry and Mason, LLC
Attn:
If to Grantor: Mason Street Flats, LLC
Attn:
Upon at least ten days prior written notice, each party will have the right to change its address to any other
address within the United States of America.
11. Runs with the Land; Successors and Assigns. The provisions of this Agreement shall
run with the land and shall inure to the benefit of, and be binding upon, the Owners and their respect
successors in title to the Grantor Parcel and the Grantee Parcel, respectively.
12. Severability. In the event that any provision in this Agreement is held to be invalid or
void, that provision will be deemed severable from the remainder of this Agreement and will in no way
affect any other provision in this Agreement. If a provision will be deemed invalid due to its scope or
breadth, that provision will be deemed invalid to the extent of the scope and breadth permitted by law.
13. Interpretation. Unless otherwise provided, references in this Agreement to paragraphs
are to paragraphs in this Agreement. This Agreement is to be construed according to its fair meaning and
not strictly for or against party. Except as otherwise provided in this Agreement, no remedy provided in
this Agreement is exclusive of any other remedy, and all remedies under this Agreement may be exercised
concurrently, independently, or successively from time to time.
14. Titles and Headings. Titles and headings of paragraphs in this Agreement are for
convenience of reference only and do not affect the construction of any provision of this Agreement.
15. Further Action. The owners of the Parcels will execute and deliver all documents, provide
all information, and take or forbear from all actions as may be necessary or appropriate to achieve the
purposes of this Agreement.
16. Governing Law. This Agreement will be construed and enforced in accordance with the
laws of the State of Colorado.
27. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver
of the right to enforce that provision. The provisions of this Agreement may only be waived by a writing
signed by a party intended to be benefited by the provisions to be waived specifically acknowledging an
intent to waive those provisions. A waiver by a party of any breach by the other party will not be construed
as a waiver of any succeeding breach of the same or other provisions.
17. Entire Agreement. This Agreement constitutes the entire agreement pertaining to the
subject matter contained in this Agreement.
18. Exhibits. All references to “Exhibits” contained in this Agreement are references to
exhibits attached, all of which are incorporated into and made a part of this Agreement.
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19. Counterparts. This Agreement may be executed in any number of counterparts, each of
which will be deemed to be an original and all of which taken together will be a single instrument.
20. Authority. Each person executing this Agreement on behalf of a party to this Agreement
represents and warrants that he or she is authorized and empowered to do so and to bind the party on whose
behalf he or she is signing.
21. Attorneys’ Fees. In any action to enforce the terms of this Agreement, the prevailing party
or parties will be entitled to an award of reasonable attorneys’ fees and court costs from the non-prevailing
party or parties.
THIS FIRE AND EMERGENCY ACCESS EASEMENT AGREEMENT is effective as of the Effective
Date.
GRANTOR:
MASON STREET FLATS, LLC,
A Colorado limited liability company
By: __________________________________________
Name:
Title:
GRANTEE:
209 CHERRY STREET, LLC,
a Utah limited liability company
By: Colmena Capital, Inc.
a Utah corporation
Its Manager
By:
Name:
Title:
By: Tribe Development Company, LLC
a Colorado limited liability company
By:
Name:
Title:
A-1
EXHIBIT A
TO
ACCESS EASEMENT AGREEMENT
Grantor Property
LOT 1A, PENNY FLATS SUBDIVISION, FIRST REPLAT, CITY OF FORT COLLINS, COUNTY OF
LARIMER, STATE OF COLORADO (20100067556)
LOT 1B, PENNY FLATS SUBDIVISION, FIRST REPLAT, CITY OF FORT COLLINS, COUNTY OF
LARIMER, STATE OF COLORADO (20100067556)
B-1
EXHIBIT B
TO
ACCESS EASEMENT AGREEMENT
Grantee Property
LOT 1, PENNY FLATS SUBDIVISION, SECOND REPLAT, CITY OF FORT COLLINS, COUNTY OF
LARIMER, STATE OF COLORADO
C-1
EXHIBIT C
TO
ACCESS EASEMENT AGREEMENT
______________________________________________________________________________
Easement Area