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HomeMy WebLinkAboutTHUNDERBIRD ESTATES LOT 1 BLOCK1 ESKIN PROPERTY - Filed OA-OTHER AGREEMENTS - 2008-06-11%W u AGREEMENT THIS AGREEMENT is made and entered into this day of April, 1997, by and between AVRAM A. ESKIN and BELINDA J. ESKIN, whose address is, for the purposes of this Agreement, 123 East Drake Road, Fort Collins, Colorado 80525 ("Eskins"), and MAE A. TILEY and K. BILL TILEY, whose address is, for the purpose of this Agreement, 117 East Drake Road, Fort Collins, Colorado 80525 ("Tileys"). WITNESSETH: WHEREAS, Eskin's are the owners of the real property described on Exhibit "A" attached hereto and incorporated herein, ("the Eskin Property"); and WHEREAS, Tileys are the owners of the real property described on Exhibit "B" attached hereto and incorporated herein, ("the Tiley Property"); and WHEREAS, a map of the Eskin Property and the Tiley Property is attached hereto as Exhibit "C" and incorporated herein by this reference ("the Map"); and WHEREAS, the Eskins have applied to the City of Fort Collins to obtain Planned Unit Development Approval with respect to the Eskin Property ("the PUD Plan"); and WHEREAS, the PUD plan as submitted provides for two (2) parking spaces located upon the Eskin Property adjacent to the East boundary line of the Tiley Property; and WHEREAS, the City of Fort Collins is requiring, as a condition to approval of the PUD Plan, that Eskins obtain an easement for ingress and egress over, upon, and across the Tiley Property to the parking spaces to be located on the Eskin Property; and WHEREAS, the Tileys are willing to grant an easement for vehicular and pedestrian ingress and egress over, upon, and across the Tiley Property to and from the parking spaces to be located upon the Eskin Property, as well as to and from four (4) additional parking spaces to be located immediately adjacent to and South of the parking spaces depicted on the PUD Plan, which additional parking spaces the Tileys have requested in consideration for the grant of the easement herein described; and WHEREAS, the Eskins are willing to provide a total of six (6) parking spaces upon the Eskin Property adjacent to and contiguous with the Easterly boundary of the Tiley Property, in accordance with this Agreement, in return for an easement for vehicular and pedestrian ingress and egress over, upon, and across the Tiley Property to and for the benefit of the Eskin Property, all is more particular described below. m 14w; Exhibit "B" "The Tiley Property" LOT 3, THUNDERBIRD ESTATES, SIXTH SUBDIVISION, IN THE CITY OF FORT COLLINS, COUNTY OF LARIMER AND STATE OF COLORADO, ACCORDING TO THE RECORDED PLAT THEREOF, KNOWN AND NUMBERED -AS 117 EAST DRAKE ROAD, FORT COLLINS, COLORADO. C) Q O oz EXHIBIT I b rr/ NOW, THEREFORE, in consideration of the premises; and other good and valuable consideration, the receipt and adequacy of which is hereby confessed and acknowledged, the parties agree as follows: 1. Grant of Easement. (a) Tileys to Eskin. Tileys, for themselves and their heirs, personal representatives, successors and assigns, do hereby grant, bargain, sell, convey, and confirm unto Eskins, their heirs, personal representatives, successors and assigns, forever, a non-exclusive, perpetual easement over, upon, and across Tiley Property for the purpose of providing vehicular and pedestrian access to and from West Drake Road adjacent to and North of the Tiley Property over, upon, and across the Tiley Property to the Easterly boundary thereof, for the benefit of the Eskins and their heirs, successors, assigns, employees, tenants, sub -tenants, licensees, guests, business invitees, and any other person or entity having a record interest in the Eskin Property or having the right to use or possession of the Eskin Property or the right to enter upon the Eskin Property. Tileys warrant title to the easement herein granted, subject to easements and encumbrances of record; easements and rights -of -way in place or of record; restrictions, reservations, and exceptions of record; protective covenants of record; and real property taxes for the year 1997 and subsequent years. (b) Eskins to Tileys. Eskins, for themselves and their heirs, personal representatives, successors and assigns, hereby grant, bargain, sell, convey, and confirm onto Tileys, their heirs, personal representatives, successors and assigns, forever, a non-exclusive, perpetual easement for vehicular parking upon the six (6) parking spaces be constructed upon the Eskin Property immediately adjacent to and contiguous with the Easterly boundary of the Tiley Property for the benefit of the Tileys, their heirs, personal representatives, successors, assigns, employees, tenants, sub- tenants, licensees, guests, business invitees, and any other person or entity having a record interest in the Tiley Property or having the right to use or possession of the Tiley Property, or the right to enter thereon. Eskins warrant title to the easement herein granted, subject to liens and encumbrances of record; easements and rights -of -way in place of or record; restrictions, reservations, and exceptions of record; protective convents of record; and real property taxes for the year 1997 and subsequent years. 2. Regulation of the Access Easement. Tileys shall not restrict in any manner the Access Easement including, by example and not limitation, regulation of the direction and flow traffic without the mutual agreement of the parties hereto. %W *40 3. Maintenance of Access Easement. The Access Easement upon the Tiley Property shall be maintained in such a manner as is reasonably necessary and appropriate for the continued use of the Access Easement for the purpose of providing vehicular and pedestrian access over, upon, and across the Tiley Property to and from West Drake Road and to and from the Parking Spaces to be located upon the Eskin Property. Such maintenance shall include, by example and not limitation, the following: repairs, replacements, resurfacing, painting, re -striping, cleaning, sweeping, and snow removal services; maintenance, repair, and replacement of curbs, gutters, sidewalks, signs, asphalt, and concrete; and all other general maintenance, rebuilding, modification, improvement, repair, and replacement of the Access Easement and provision of personnel to implement such services. Any maintenance, repair, restoration, and improvement of the Access Easement shall be performed by Tileys at their sole and exclusive cost and expense. 4. Construction of the Parking Spaces. The most Northerly Barking spaces to be constructed on the Eskin Property, as depicted upon the PUD Plan, shall be constructed as soon as feasible following the PUD approval. The Eskins hereby authorize the Tileys, and the Tileys agree, to coordinate construction of these two (2) parking spaces in conjunction with repairs and replacements which the Tileys currently plan to make to the Access Easement area upon the Tiley Property. Eskins agree to pay to the Tileys, upon request, their proportionate share of the cost of all base, asphalt, and striping costs with respect to the construction of the two (2) parking spaces. All such base and asphalt cost shall be allocated between Tileys and Eskins on a proportionate square footage basis. Eskins hereby authorize the Tileys to proceed with the construction of four (4) additional parking spaces, south of, adjacent to, and contiguous with the above referenced two (2) parking spaces, at such time as the construction may be authorized or approved by the City of Fort Collins. The costs of all base, asphalt, and stripping with respect to these four (4) additional parking spaces shall be paid by Eskins to the Tileys upon demand. In the event the Tileys are able to coordinate construction of all six (6) parking spaces at one time in conjunction with the repairs and replacements to the Access Easement upon the Tiley Property, then the cost of such base and asphalt shall be allocated between the Eskins and the Tileys on a proportionate square footage basis. In the event any dispute should arise with the respect to the appropriate costs of the above referenced base, asphalt, and stripping, the parties agree to submit the matter to mediation, and if not resolved by mediation, to binding arbitration in accordance Uniformed Arbitration Act of 1975, C.R.S. 13-22-201, et seq. 5. Additional and Common Expenses. Eskins agree to pay the costs of constructing concrete bumper stops for the Parking Spaces. Eskins also agree to pay the costs of the removal of the fence located upon the Eskin Property where the Parking Spaces and to be located. All Additional Expenses with respect to the design and construction of the Parking Spaces shall be born by the Tileys, including, but not byway limitation, legal fees, engineering fees, architectural fees, excavation expenses, and other and additional costs associated with the design and construction of the En *0 Parking Spaces or repair or replacement of damage to adjacent improvements. After the Parking Spaces are completed, references in this Agreement to the term "Common Expenses" shall mean and refer to all costs and expenses incurred in the maintenance, repair, renovation, construction, or improvement. of the Access Easement and the Parking Spaces which have been approved by mutual agreement of both parties, including by way of example, and not limitation, the cost of all materials, supplies, and equipment incorporated in the Access Easement and the Parking Spaces; payment to contractors or sub -contractors for any work performed on the Access Easement and the Parking Spaces; rental charges for all necessary machinery and equipment used in connection with maintenance, repair, construction, or improvement of the Access Easement and the Parking Spaces; the costs of removal of snow, debris and trash from the Access Easement and Parking Spaces, costs incurred due to an emergency effecting the safety of persons and property in the Access Easement and Parking Spaces; and all other costs incurred in the maintenance, repair, construction, or improvement of the Access Easement and Parking Spaces if and to the extent approved in advance by both parties. Each party shall be responsible for paying their proportionate share of all Common Expenses on a proportionate square footage basis. The term "proportionate square footage basis" as used herein, is intended to mean, and shall be deemed to mean, in the proportion which the square footage of the six (6) parking spaces bears to the square footage of the asphalted and concreted portion of the Tiley Property. Either party shall have the right, but not the obligation, to make such repairs and maintenance upon their respective property as either deems appropiate without the consent of the other party, provided that any such repairs or maintenance authorized without the consent of the other party shall not interfere with the non -consenting party's use if the Access Easement or the Parking Spaces, except for such temporary time as may be necessary during the course of construction, and provided that the party authorizing such repairs or maintenance without the consent of the other party shall be solely responsible for the payment of all costs and expenses in connection with such unauthorized maintenance and repairs and shall indemnify and hold harmless the non -consenting party from and against any loss, cost, and expense, including reasonable attorneys fees arising out of any claim which may be made against the non -consenting party for work performed or materials delivered. The party authorizing any such maintenance or repairs without the consent of the other party shall indemnify the non -consenting party against all claims, liens, or Claims of lien arising directly or indirectly out of or by reason of any work or activity performed and shall, within ten (10) days after the filing of any such statement of lien, fully pay and satisfy the same or post a bond or other appropiate security to obtain the release of the non -consenting party's property from such lien. 6. Indemnification. (a) Indemnification of Tileys. The Eskins, for themselves, their heirs, personal representatives, successors and assigns, shall indemnify and save harmless the Tileys, their heirs, personal representatives, successors and assigns, including the agents, servants, and employees thereof, from and against any and all claims, actions, liability, and expense, including reasonable attorneys fees, incurred in connection with the loss of life, bodily injury, and/or damage to property arising out of or as a result of the use of the Parking Spaces by the Tileys, their agents, employees, servants, tenants, sub -tenants, licensees, concessionaires, guests, or business invitees, unless the same is caused by the -willful or negligent act or omission of the indemnified parties. If any action or proceeding is brought against the indemnified parties for which the indemnified parties would be entitled to indemnification under this paragraph, the indemnified parties shall give written notice to Eskins and, upon receipt such notice, Eskins shall defend such action or proceeding by adequate counsel at their expense. (b) Indemnification of Eskin's. The Tileys, for themselves, their heirs, personal representatives, successors and assigns, shall indemnify and save harmless the Eskin's, their heirs, personal representatives, successors and assigns, including the agents, servants, and employees thereof, from and against any and all claims, actions, liability, and expense, including reasonable attorneys fees, incurred in connection with the loss of life, bodily injury, and/or damage to property arising out of or as a result of the use of the Access Easement by Eskins, their agents, employees, servants, tenants, sub -tenants, licensees, concessionaires, guests, or business invitees, unless the same is caused by the willful or negligent act or omission of the indemnified parties. If any action or proceeding is brought against the indemnified parties for which the indemnified parties would be entitled to indemnification under this paragraph, the indemnified parties shall give written notice to the Tileys and, upon receipt of such notice, the Tileys shall defend such action or proceeding by adequate counsel at his expense. 7. Liability Insurance. Each party shall keep in force, with an insurance company authorized to do business in the State of Colorado, a policy of commercial general liability insurance, including property damage, which shall insure both parties from and against all claims, demands, actions, or liability for injury to or death of any persons and damage to property with limits of coverage not less than one million dollars ($1,000,000.00) (combined single -limit bodily injury and property damage). Each party's policy of general liability insurance shall name the other party as an additional named insured. The deductible under such policy shall be in such amount as reasonably acceptable to both parties. Such policy of insurance shall insure, without limitation, the performance by each party of the indemnities set forth herein. Each party shall deliver to the other party a certificate or other evidence of such insurance, which shall provide, among other things, that the insurer will give thirty (30) days written notice prior to any lapse, cancellation, reduction, modification, or material change in the policy. Each policy shall provide, among other things, that the insured and any additional named insurers, as set forth in this paragraph, although named as insureds, will nonetheless will be entitled to recover under said police for any loss occasioned to them, their servants, agents, and employees, by reason of the negligence of the other party or such party's servants, agents, or employees. Each .policy shall be a primary insurance contract. The insurance required to be maintained it '"0 by either party pursuant to this paragraph may be covered by a "blanket" policy covering other business locations so long as each party is named as an additional insured under such policy or polices as their interest may appear. 8. Representations and Warranties. Each party expressly represents and warrants to the other that it has full power and lawful authority to execute this Agreement and perform the obligations and responsibilities herein set forth, and that this Agreement constitutes the valid, legal, binding, and enforceable obligations of such party. 9. Remedies Upon Default. In the event of default, the nondefaulting party shall have the right to an action for -specific performance or damages, or both. In the event the parties, by mutual agreement or as a result of a bona fide emergency, authorize work to be performed on the Access Easement and in the event any party fails to pay their proportionate share of the common expenses and shall be entitled to reimbursement from the defaulting party for the defaulting party's share of the common expenses, then the nondefaulting party may pay the defaulting party's share of the common expenses, together with interest at the rate of eighteen percent (18%) per annum. In addition, the nondefaulting party shall have a lien upon the defaulting party's property for the defaulting party's share of the common expenses, together with interest thereon. To evidence such lien, the nondefaulting party shall prepare a written notice setting forth the amount of the unpaid portion of the common expenses, the name of the defaulting party, and a legal description of the defaulting party's property. Such notice shall be signed by the nondefaulting party and shall be recorded in the office of the Clerk and Recorder of Larimer County, Colorado, after having been mailed not less than ten (10) days prior to such recording to the defaulting party. Such lien shalt be superior and prior to all other liens and encumbrances, except liens for general taxes, special assessments, or any mortgage or deed of trust recorded prior to the date that such lien is recorded in the office of the Clerk and Recorder of Larimer County. Any lien recorded in accordance with this paragraph may be enforced by foreclosure of the defaulting party's property in the same manner as the foreclosure of a mortgage deed under the laws of the State of Colorado. The nondefaulting party shall have the right and power to bid on the defaulting party's property at such foreclosure sale. The amount of the common expenses due from the defaulting party shall also be personal and individual debt of the defaulting party at the time payment comes due, and suit to recover a money judgement for such unpaid portion of the common expenses maybe maintained in addition to any other remedy hereunder, with or without foreclosure or waiver of the lien rights herein set forth. 10. Attorney's Fees. In the event of any arbitration proceeding, foreclosure action, or litigation arising out of this Agreement, the prevailing party shall be awarded its costs and reasonable attorney's fees. rrr U 11. Binding Effect. The Access Easement granted herein and the other provisions hereof shall be covenants running with the land and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and assigns. 12. Contingency. This Agreement and all partie's obligations hereunder are expressly contigent upon the City of Fort Collins, approval of the PUD Plan. IN WITNESS WHEREOF, the parties hereto have executed this Agreeme of the day and year first above written. AVRAM A. E BELINDA J. ESKIN STATE OF COLORADO ) ) SS. COUNTY OF LARIMER ) T eoregoing instrument was subscribed, sworn to, and acknowledged before me day of AprYl�by AVRAM A. ESKIN and BELINDA J. ESKIN. Witness my NOTAgy ':�' jDUB LI O J RA yj INN Notary Public �Pa��On COS �a��`° My Commission Expires: p?-q% MAE A. TILEY By K. Bill Tiley, her Attorney in Fact K. BILL TILEY STATE OF COLORADO ) ) SS. COUNTY OF LARIMER ) Th�foregoing instrument was subscribed, sworn to, and acknowledged before me this day of April, 1997, by MAE A. TILEY and K. BILL TILEY. Witness my hand apIARy g Notary Public n My Commission Expires: b a9-9� Exhibit "A" "The Eskin Property" LOT ONE (1) BLOCK ONE (1), THUNDERBIRD ESTATES FIRST SUBDIVISION, AND THE NORTH FIVE (5) FEET OF LOT TWO (2), BLOCK ONE (1), THUNDERBIRD ESTATES FIRST SUBDIVISION; EXCEPT THE WEST 25 FEET OF THE NORTH 66 FEET OF SAID LOT ONE (1)