HomeMy WebLinkAboutLegal - Easement - 03/07/2022 RECEPTION#20220015185, 3/7/2022 4:24:36 PM,1 of 21,S113.00 Electronically Recorded
Angela Myers,Clerk&Recorder,Larimer County,CO
CROSS ACCESS EASEMENT AGREEMENT
THIS CROSS ACCESS EASEMENT AGREEMENT (this "Agreement"), is dated
March 1, 2022 and is by and between COLLEGE & TRILBY LLC, a Colorado limited
liability company ("C&T") and LATTE LOVE,LLC, a Colorado corporation ("Latte").
Individually C&T and Latte may be referred to herein as a"Party" and collectively, the
"Parties."
RECITALS
A. C&T is the owner of certain real property in the City of Fort Collins (the "City"),
County of Larimer(the "County"), State of Colorado, and which is more particularly described
on Exhibit A attached hereto and incorporated herein by reference (the "C&T Property").
B. Latte is the owner of certain adjacent real property as more particularly described
on Exhibit B attached hereto and incorporated herein by reference (the"Latte Property").
C. The Latte Property currently contains existing retail uses and access for the
various users within the Latte Property is provided for in that certain Declaration of Shopping
Center Restrictions and Grant of Easements dated November 30, 2003 and recorded at Reception
Number 20040003382 of the real property records of Larimer County, as the same has been
amended (the "Existing Declaration"). The C&T Property is not subject to the Existing
Declaration. This Agreement is separate from the Existing Declaration and does not modify any
terms or conditions of the Existing Declaration.
D. The C&T Property is currently vacant.
E. There currently exists an access drive (the "Access Drive") located partially on
the C&T Property and partially on the Latte Property, which Access Drive is more particularly
depicted on Exhibit C attached hereto and incorporated herein by reference.
F. The Access Drive provides access to the Latte Property and upon development of
the C&T Property will provide access to the C&T Property.
G. The portion of the Access Drive located on the Latte Property provides both the
Latte Property and the C&T Property access to the adjacent right-of-way commonly referred to
as S. College Avenue.
H. The Parties desire to grant, create and convey a cross-easement over any portion
of the Access Drive owned by them for the benefit of the C&T Property and Latte Property and
to address maintenance and repair of the Access Drive, all as provided herein.
NOW THEREFORE, for good and valuable consideration,the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. C&T Easement Grant. C&T hereby grants and conveys to Latte, its successors
and assigns, for the benefit of the Latte Property, a non-exclusive, permanent easement for
ingress and egress over that portion of the Access Drive owned by C&T and more particularly
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described on Exhibit D attached hereto and incorporated herein by reference (the "C&T Access
Easement Parcel").
2. Latte Easement Grant. Latte hereby grants and conveys to C&T, its successors
and assigns, for the benefit of the C&T Property, a non-exclusive,permanent easement for
ingress and egress over that portion of the Access Drive owned by Latte and more particularly
described on Exhibit E attached hereto and incorporated herein by reference (the "Latte Access
Easement Parcel" and together with the C&T Access Easement Parcel, the "Easement
Parcels").
3. Existing Declaration. The Parties acknowledge that the Existing Declaration does
and will continue to bind the Latte Property and that this Agreement shall not and is not intended
to change or conflict with the terms of the Existing Declaration. Latte represents that,to the best
of its knowledge, no conflict exists and both Parties agreed not to take any action that would
supersede or interfere with the terms of this Agreement without the prior written consent of the
other Party.
4. Use of Easement Parcels. The C&T Access Easement Parcel and Latte Access
Easement Parcel shall be solely used for: (i)the purpose of providing motor vehicle, pedestrian
and emergency services ingress and egress to the C&T Property and Latte Property; (ii) such
underground utilities and improvements benefitting the C&T Property and the Latte Property
(the "Underground Improvements") as C&T or Latte may reasonably determine necessary,
provided such utilities and improvements do not impair surface use of or access to the Easement
Parcels (the term"Underground Improvements" includes all subsequent replacements and
additions thereto). (iii) for the purpose of performing any maintenance,repairs or replacements
required to be made by either Party pursuant to this Agreement; and (iv) for such other purposes
as may be agreed in writing upon by C&T and Latte from time to time. Parking in the Access
Drive is prohibited.
5. Access to Underground.�ound. Either Party, at their own expense, shall have the right
to enter upon the Easement Parcels for the purpose of installing,maintaining and replacing the
Underground Improvements. The Party entering for these purposes shall return the surface to its
pre-existing condition. The location of any Underground Improvement on an Easement Parcel
shall not interfere with existing Underground Improvements and shall be subject to the
reasonable approval of the owner of the Easement Parcel.
6. Maintenance of Access Drive. Until such time as a certificate of occupancy is
granted for a structure on the C&T Property, Latte, at its sole cost and expense, shall provide for
all repair and maintenance of the Access Drive, unless damage beyond normal wear and tear is
caused by C&T, in which event C&T shall be solely responsible for the repair of such damage.
C&T shall provide Latte written notice within twenty (20) days following the date that C&T
obtains its first certificate of occupancy for the C&T Property (the"C&T CO Notice"). Within
thirty(30) days following the date of the C&T CO Notice, unless the Parties mutually agree
otherwise, C&T shall assume the maintenance and repair responsibility for the Access Drive.
Such maintenance and repair shall include the following: snow removal, asphalt and curb repair
and replacement, striping, directional signage as needed and trash and debris removal as well as
repair and replacement of improvements within the public right of way of College Avenue to the
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extent required by the City or as reasonably necessary to maintain free and open use of the
Access Drive (the "Maintenance Duties"). The Party then obligated to perform the
Maintenance Duties shall perform the same in a commercially reasonable manner in accordance
with similarly situated improvements within the City and shall repair any damage to the same as
soon as practicable and in all events within thirty (30) days following written notice from the
other Party. Any materials used in the Maintenance Duties shall be of good quality and
durability.
7. Cost Sharing of Maintenance and Repair Expenses. Following the date that C&T
assumes the Maintenance Duties, the Parties agree that the actual costs and expenses associated
therewith(the "Costs") shall be shared by the Parties (except as further provided herein). C&T
shall bear 66.67% of all Costs (the "C&T Share of Costs") and Latte shall be responsible for
33.33% of all Costs (the "Latte Share of Costs"). Notwithstanding the foregoing, if a repair is
necessitated by the acts or omissions of a Party, such responsible Party shall bear 100% of the
cost of such repair. C&T shall invoice Latte on a monthly basis for any Latte Share of Costs
incurred for the prior month. Each invoice shall be accompanied by reasonable back-up
documentation. Latte shall have fifteen(15) days to pay such invoice after receipt. If any
invoice is disputed or the Parties are unable to agree upon any repairs or replacements, such
dispute shall be submitted to mediation prior to any judicial action and each Party shall bear V2
the costs of such mediation. In the event Latte does not pay an invoice when due,the same shall
accrue interest at the rate of 10%per annum simple interest from the date due until the date paid.
Any unpaid amounts shall constitute a lien on the Latte Property and C&T shall have all
remedies available to it at law or in equity to collect the same. Notwithstanding the foregoing,
any costs related to the installation or maintenance of Underground Improvements, if any, shall
be borne 100%by C&T.
8. Reallocation of Costs. The allocation of Costs between the Parties is based upon
the Parties' estimate of the traffic to ultimately be generated by each Party's Property. If, at any
time after the C&T CO Notice, either Party wishes to have the Costs reallocated based on then
existing traffic using the Access Drive,that Party may, at its cost, engage a traffic engineer
reasonably acceptable to the other Party to determine how much of the traffic on the Access
Drive is generated by the Latte Property and sites feeding traffic into the Latte Property and how
much is generated by the C&T Property and sites feeding traffic into the C&T Property. Upon
the traffic engineer's determination, the Latte Share of Costs and the C&T Share of Costs shall
be adjusted accordingly.
9. Self-Help Right. If the Party performing the Maintenance Duties shall fail to
perform such Maintenance Duties in accordance with the terms and conditions hereof, the other
Party shall deliver written notice to the defaulting Party of the same. If the defaulting Party fails
to cure such default within 10 days following written notice (or such longer period as may be
required, so long as the defaulting Party has commenced to cure within said 10 days and is
diligently pursing the same),then the non-defaulting Party shall have the right to assume the
Maintenance Duties whereupon such non-defaulting Party shall be entitled to receive
reimbursement for its Costs incurred pursuant to the same terms and provisions as set forth
above in Section 5.
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10. Reservation of Rights. Each Party reserves the right to use, and to grant others
the right to use, its respective Easement Parcel for any and all purposes not inconsistent with the
use of the Easement Parcels pursuant to the terms of this Agreement.
11. Relocation. If, at any time,the City requires the Access Drive to be relocated, or
the current location of the Access Drive will materially impair the development on either the
Latte Property or the C&T Property,the Parties agree to work cooperatively to relocate the
Access Drive to a mutually acceptable location so long as: (i) access is preserved to both the
C&T Property and the Latte Property to and from College Avenue; and (ii)the relocation does
not materially affect or burden either the C&T Property or the Latte Property. Any costs of
relocation shall be home by the Party requesting such relocation, or if such relocation is
mandated by the City,the costs shall be borne in the percentage set forth in Section 7 above.
The Parties further agree to execute any further easements, deeds or rights of way grants in
furtherance thereof.
12. Plat. If, at any time, the City requires part or all of the Access Drive to be
dedicated to the City or either Party wishes to have part or all of the Access Drive dedicated to
the City,the Parties agree to work cooperatively to effect such dedication, so long as access is
preserved to both the C&T Property and the Latte Property to and from College Avenue. Any
costs of the dedication shall be borne by the Party requesting such dedication, or if such
relocation is mandated by the City,the costs shall be borne in the percentage set forth in Section
7 above. The Parties further agree to execute any further easements, deeds or rights of way
grants in furtherance thereof.
13. Indemnity; Insurance. Each Party shall indemnify, defend and hold the other
Party harmless from and against any and all claims, liabilities, losses, damages, costs and
expenses (including without limitation, reasonable attorneys' fees), to the extent arising out of
the use of the Access Drive by such Party, its contractors, employees and agents, but no other
third parties. Each Party shall maintain, or cause its contractor to maintain, a policy of general
liability insurance with a limit of not less than $1,000,000 per occurrence and $2,000,000 in the
aggregate per policy period, supplemented by umbrella excess liability insurance with a limit of
not less than$2,000,000 per occurrence. This insurance must include premises operations,
personal injury, contractual liability,products/completed operations hazard and broad form
property damage coverages and shall name the other Party as an additional insured. At the
request of a Party,the other Party shall provide a certificate of insurance evidencing such
insurance.
14. Mechanic's Lien. Nothing contained herein shall authorize either Party or any
person or entity acting through,with, or on behalf of either Party to subject the Easement
Parcels, or any portion thereof,to mechanic's liens. If any such liens shall be filed against the
Easement Parcels solely as a result of any work performed by or on behalf of a Party, such Party
shall cause the lien to be discharged. In the event that such lien is not discharged within thirty
(30) days after filing of the same,then the Party that did not engage such entity which filed the
lien shall, at its option, and at the reasonable cost and expense of the other Party may enter into,
defend,prosecute or pursue any effort or action(whether or not litigation is involved)which
non-contracting Party deems reasonably necessary to defend the Easement Parcels from and
against such lien.
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15. Signage. C&T reserves the right, but not the obligation, to impose reasonable
traffic related regulations on the use of the Access Drive and to install signage related thereto.
16. Notices. Any notices required or permitted under the terms of this Agreement
shall be in writing and shall be deemed given and received (i) when hand delivered to the
intended recipient, by whatever means; (ii)three (3) days after the saine is deposited in the
United States mail, with adequate postage prepaid, and sent by certified mail, return receipt
requested; (iii) one (1) business day after the same is deposited with an overnight courier service
of national or international reputation having a delivery area encompassing the address of the
intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the
recipient's facsimile facilities accessed by the applicable facsimile number set forth below
(provided receipt is confirmed as an ordinary function of the facsimile facilities of the delivering
Party). The applicable addresses and facsimile numbers for notice purposes are initially as
follows:
If to C&T: College & Trilby, LLC
6900 E Belleview Ave, Suite 300
Greenwood Village, CO 80121
Attn: Steven Shoflick
Telephone: 3 03-996-632 8
Email: sshoflick@miller-united.com
If to Latte: Latte Love, LLC
4144 Cairoway Seed Dr.
Johnstown, CO 80534.
Attn: Mr. Stephen Anderson
Telephone: (630) 319-4001
Email: Stephen.Anderson@ZiggisCoffee.com
Any Party may change its address and/or fax number for notices pursuant to a written notice
which is given in accordance with the terms hereof. Any notice may be given on behalf of either
Party by its legal counsel or other authorized representative. As used herein,the term "business
day" shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. Mail
service is not provided.
17. Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Colorado.
18. Invalidily. If any term or provision of this Agreement or the application thereof
to any person or circumstance is determined to be invalid or unenforceable by a court of
competent jurisdiction,the remainder of this Agreement shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
19. No Implied Waiver. The failure or delay of any Party to exercise any of its rights
under this Agreement shall not constitute a waiver of any such rights. No Party shall be deemed
to have waived any right under this Agreement unless such waiver is made expressly and in
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writing, and no waiver made as to any instance, or any particular right shall be deemed a waiver
as to any other instance or any other right.
20. Headings. The section headings used in this Agreement are for convenience only
and shall not be considered in construing the meaning of any provision of this Agreement.
21. Easements and Covenants Running With the Land. The easement and other
covenants, declarations and agreements set forth herein will be binding upon and inure to the
benefit of the C&T and Latte and their successors and assigns, will run with the land and will be
easements appurtenant to, for the benefit of, and run with the title to the Easement Parcels, C&T
Property and Latte Property and all ongoing and future use and enjoyment thereof. This
Agreement shall be recorded in the office of the Clerk and Recorder of the County of Larimer
and will serve as notice to and will be binding upon and inure to the benefit of the C&T and
Latte and upon the successive owners of the Easement Parcels, C&T Property and Latte
Property, including, without limitation, successors through purchase at foreclosure sale or deed
in lieu of foreclosure and the respective benefits and burdens hereunder will run with the land
and will be non-terminable.
22. Prevailing Party. The substantially prevailing Party in any litigation arising
hereunder shall be entitled to reasonable attorney's fees and court costs, including appeals, if
any.
23. Estoppel Certificate. Each Party hereby severally covenants that within thirty
(30) days of the written request of the other Party it will issue to the other Party or to any
prospective mortgagee, or purchaser of an Easement Parcel, an estoppel certificate stating: (a)
whether the Party to whom the request has been directed knows of any default under this
Agreement and if there are known defaults specifying the nature thereof; (b)whether to its
knowledge this Agreement has been assigned, modified or amended in any way (and if it has,
then stating the nature thereof); and(c)whether to the Party's knowledge this Agreement as of
the date is in full force and effect.
24. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMEN AS OF
THE DATE AND YEAR WRITTEN ABOVE.
[SIGNATURE PAGES TO FOLLOW]
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C&T
COLLEGE & TRILBY LLC, a Colorado
limited li hility company
By:
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
20 . , by , as of COLLEGE & TRILBY
LLC, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires: tom,
NOTARY PUBLIC Notary Public
STATE CP COLORAI30
NOTARY ID#20014019679
�}Y COMMISSION EXPIRES 7115/20 5
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LATTE
LATTE VE,LLC a Colorado orporation
By
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STATE OF COLORADO }
ss. j
ITY OF
COUN
I'.he foregoing instrument was acknowledged 1)efore
20 Z,2---'by S Al4V A e450 of I.,atte Love,LLC,a
Colorado collioration. "
Witness my hand and official seal.
S
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Noy commission expir::s: _ L_
LALEX NEIL BROWN NOtal'y)?UJiIC
NOTARY PUBLIC-STATE OF COLORAOO
NOTARY ID 20194040745 3
MµISSION EXPIRES OCT 24,2023 t�
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EXHIBIT A
C&T Property
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C&T PROPERTY
EXHIBIT A
Legal Description of Land
A TRACT OF LAND SITUATE IN THE E 1/2 OF SECTION 11, TOWNSHIP 6 NORTH,
RANGE 69 WEST OF THE 6TH P.M., COUNTY OF LARIMER, STATE OF COLORADO,
WHICH CONSIDERING THE EAST LINE OF THE SAID SE 1/4 AS BEARING S 000 04' E
AND WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO IS
CONTAINED WITHIN THE BOUNDARY LINES WHICH BEGIN AT A POINT ON THE
SOUTH LINE OF THE SAID SE 1/4 WHICH BEARS S 89°03'47" W, 420.00 FEET FROM
THE SE CORNER OF SAID SECTION 1 I AND RUN THENCE S 89°03'47" W, 539.40 FEET
ALONG THE SAID SOUTH LINE; THENCE N 01°30'15" W, 2644.47 FEET TO A POINT
ON THE SOUTH LINE OF SKYWAY DRIVE; THENCE S 88°47'46" E, 982.97 FEET
ALONG THE SAID SOUTH LINE TO A POINT ON THE WEST RIGHT OF WAY LINE OF
US HIGHWAY NO 287; THENCE S 00°05'20" W, 2107.05 FEET ALONG THE SAID WEST
RIGHT OF WAY LINE; THENCE S 89°03'47" W, 371.38 FEET PARALLEL TO THE
SOUTH LINE OF THE SAID SE 1/4; THENCE S 00°04' E, 501.00 FEET PARALLEL TO
THE EAST LINE OF THE SAID SE 1/4 TO THE POINT OF BEGINNING.
EXCEPT RIGHT OF WAY FOR TRILBY ROAD AS THE SAME IS ESTABLISHED
AND/OR USED.
ALSO EXCEPT THOSE PARCELS DESCRIBED IN DEEDS RECORDED JANUARY 15,
2004 AT RECEPTION NO. 20040004681 AND RECORDED JANUARY 15, 2004 AT
RECEPTION NO. 20040004682 AND RECORDED SEPTEMBER 14, 2004 AT RECEPTION
NO. 20040090382 AND RECORDED JANUARY 12, 2006 AT RECEPTION NO.
20060002802.
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EXHIBIT B
Latte Property
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