HomeMy WebLinkAboutMIRAMONT OFFICE PARK - Filed OA-OTHER AGREEMENTS - 2016-08-19PRIVATE UTILITY AGREEMENT
THIS PRIVATE UTILITY AGREEMENT C"Agreement) is entered into by and between
4803 Boardwalk, LLG, a Colorado limited liability company (*a "Lot 2 Owner"), whose
address is do Dick Callan, 1533 Front Hine Drive, Fort Collins, CO 80525, and Ft. Collins
Development Co., LLC, (the "Parcel E. Owner"), whose address is 5150 E. Yalu Circle, #400,
Denver, Colorado 90222, on the � day of May, 2113 Tlw Lot 2 Owner and the Parcel E
Owner, and their respective; successors and assigns, are sometimes referred to collectively in this
Agreement as the "Owners).
RECITALS
A. Tlvc Lot 2 Owner owns that certain real property legeelly described as Lot 2,
Miramont Self Storage P.U.D., County of Larimer, State of Colorado, according to the plait
recorded with the Lw inner County Cie& and Recorder on January 8, 2005 at Reception Number
98001394 ("Lot 2'1 and located. in the City of Fort Collins.
B. The Pared E Owner owns that certain rag property legally described on Exh
A attached hereto ("Parcel E" ). Lot 2 and Parcel E are sometimes collectively referral to as the
"Lots" and sometin'mes individually referred to as a "Lot".
C. Aocmdin# to that certain Plat of wont Self Storsp P.U.D, recorded in the
Larime r County, Colorado real ester records on January S. 2M at Reception Number
99001394 (the "Plat"), a fifteen (15) foot wide drainage and utility easement runs along the
eastern bow of Lot 2 and is itid on to Plat as the "l 5' Drainage & Utility Easement„
(the "EasewtW). Pursuant to the Plat, the Easement was dedicated for public use to provide
drainage and utility. service to and bw Lot 2, and such dedication was accepted by the City of
Fort Collins, Colorado (the`City" y.
D. In connection with the construction of iraprovements on Parcel E, the Parcel E
Owner wishes to install and maintain a storm. sewer line fimn Pam E into the Easement on Lot
2, and the Lot 2 Owner agrees to allow the Parcel E Owner to install a storm sewer line in the
Easement pimmt to the terror in this Aft, and also in compliance with the
terms, conditions, and requireawnts set lorth by the City of Fort Collins.
NOW, THEREFOR, in consideration of*e Recitals above, the agreements set forth in
this Agreement, and other' valuable the receipt and sufficiency of which is hereby
acknowledged, the Lot 2 Owner and the Pagel E Owner agree as fellows:
1. SUCS Sewer Ljw ad 2aft Swak Tlve Lot 2 Owner hereby grants to
the Parcel E Owner The peamansait ram-cxeluWvee d& to WWI, u"aiia, rem, and replace m
the Easwneiat a private start sewer line, ao tojer than twelve inches (12") in diameter. in the
approximate location dep1cftd on ZxUW 11 attacbed m this Agreement (the "Storm Sewer
Lute'") and that the Pavel E Owner my access the Eit serntnt fbr &e piarposes of installing,
mafitamin& repairing and replacmg dw SUmm Sew Line. 1 e Lot 2 Owner also agrees that
the Sto m Sewer Line is for the sole and a xckwhv use of Pawl E aW the Pared E Owner, and
that the waw dram boo the Stacm S er Lim may dritk into as outf6ft linalsw*le within
Lot 2 in the approximift am depicted on JJW beret as the "Vosift Swale Ares" before
IS43-a .2
exiting Lot 2 onto Boardwalk Drive via the depicted curb cut and sidewalk culvert, which will be
paid for and constructed by The Parcel E Owner, or with the construction of Lot 2 at the expense
of The Parcel E Owner. The Onsite Swale Area shall include appropriate erosion control
protection. The Storm Sewer Line will convey storm water from a water quality and detention
pond located on Parcel E. The Onsite Swale Area on Lot 2 will be located entirely within the
Easement. The Parcel E Owner is solely responsible for and shall promptly pay all construction,
development, and other costs associated with the installation of the Storm Sewer Line, swale,
sidewalk culvert/chase, curb cut, and any necessary street repairs, as deemed necessary by the
City, including, without limitation, any fees dues to the City, any costs associated with any
development agreement that the City may require, any necessary grading, and maintenance fees
charged by the City, and for no more than sixteen (16) hours of an engineer's time and five (5)
hours of an attorney's time, if actually incurred by the Lot 2 Owner, in connection with this
Agreement and the plans for the installation of the Storm Sewer Line. The Parcel E. Owner shall
pay the.actual costs incurred by the Lot 2 Owner for engineer's time and attorney's time, subject
to the limits set forth in the immediately preceding sentence, within five (5) days of receiving a
written invoice. The Parcel E Owner is responsible for the design, engineering and construction
of the Storm Sewer Line and Onsite Swale Area. The Parcel E Owner shall indemnify, defend
and hold the Lot 2 Owner harmless from and against all claims, demands, damages, loss and
expenses (including reasonable attorneys' fees) arising from the use, installation, maintenance,
repair or replacement of the Storm Sewer Line and Onsite Swale Area.
2. Maintenance and Repair.
(a) Prior to Construction of Building on Lot 2. Until the commencement of
construction of a building on Lot 2, the Parcel E Owner is responsible for any and all of the
maintenance, repair and replacement costs and expenses for the Storm Sewer Line, Onsite Swale
Area, sidewalk culvertichase, curb cut, and any necessary street repairs, including the cost of
mowing the weeds and grass in the Onsite Swale Area. Until the commencement of construction
of a building on Lot 2, the Parcel E Owner shall perform the mowing of grass and weeds and any
maintenance and repairs to the Onsite Swale Area.
(b) After Commencement of Construction of Building on Lot 2. After
the commencement of construction of a building on Lot 2, the Parcel E Owner remains
responsible for all of the maintenance, repair and replacement costs and expenses for Storm
Sewer Line; however, after the commencement of construction of a building on Lot 2, the
maintenance and repair of the Onsite Swale Area is the sole responsibility of the Lot 2 Owner,
subject to the cost sharing provisions of this Section 2. After the commencement of construction
of a building on Lot 2, the Lot 2 Owner is responsible for seventy-five percent (75%) of the
maintenance costs and expenses of the Onsite Swale Area and the Parcel E Owner is responsible
for twenty-five percent (25%) of the maintenance costs and expenses of the Onsite Swale Area.
Maintenance of the Onsite Swale Area may include, without limitation, removing sentiment, and
mowing weeds and grass, but specifically excludes the cost of any real estate taxes and insurance
related to the Onsite Swale Area, Lot 2, or either of them. Notwithstanding any of the foregoing
to the contrary, if before the expiration of thirty (30) days following written notice from the
Parcel E Owner to the Lot 2 Owner, the Lot 2 Owner fails to perform any maintenance or repairs
to the Onsite Swale Area that is either required to be done by the City, or is reasonably necessary
in the opinion of the Parcel E Owner, then the Parcel E Owner may, but is not obligated to,
2
4835-1543-3236.2
perform such maintenance or repair, and the Lot 2 Owner shall be responsible for its share of the
costs of such maintenance and repair in accordance with the terms of this Section. An Owner's
share of Onsite Swale Area maintenance and repair costs is due and payable within thirty (30)
days after that particular Owner's receipt from the other Owner of (i) a description of the
maintenance and repair work completed, (ii) copies of all bills and invoices evidencing the costs
and expenses incurred for maintenance and repair, and (iii) evidence of the payment of such
amounts.
3. Future Relocation or Alteration. If, in connection with the future
development of Lot 2, the Lot 2 Owner reasonably requires that the Storm Sewer Line or the
Onsite Swale Area be relocated or altered despite the Lot 2 Owner's reasonable efforts to work
around the Storm Sewer Line or Onsite Swale Area, then the Lot 2 Owner shall give the Parcel E
Owner written notice of such proposed relocation or alteration. If such proposed relocation or
alteration complies with the requirements of the City in all respects, and would not cause Parcel
E to violate or be out of compliance with any City drainage, water quality, or other requirements,
then, at the sole cost and expense of the Parcel E Owner, the Parcel E Owner shall perform such
relocation or alteration before the expiration of sixty (60) days following the later to occur of (i)
the Parcel E Owner' receipt of the Lot 2 Owner's notice described above, and (ii) the Parcel E
Owner's receipt of all permits and approvals necessary for such relocation, which permits and
approvals the Parcel E Owner shall diligently pursue and the Lot 2 Owner shall fully cooperate
in the application and pursuit of any such approvals and permits. If the Parcel E Owner fails to
complete such relocation or alteration in the time required by the immediately preceding
sentence, then the Lot 2 Owner may send a second notice to the Parcel E Owner, and if the
Parcel E Owner fails to complete the relocation or alteration before the expiration of thirty (30)
days following the Parcel E Owner's receipt of that second notice from the Lot 2 Owner, then the
Lot 2 Owner may complete such relocation or alteration work and invoice the Parcel E Owner
for the reasonable cost and expense of the relocation or alteration actually incurred by the Lot 2
Owner. The Parcel E Owner shall pay the Lot 2 Owner the invoiced amount within thirty (30)
days after receipt of the invoice including (i) a description of the work completed, (ii) copies of
all bills and invoices evidencing the costs and expenses incurred for such work, and (iii)
evidence of the payment of such amounts.
4. Default If any payment by an Owner under this Agreement is not made when
due and is not in good faith challenged or objected to by such Owner before the due date, and
within fifteen (15) days following written notice to the Owner that is to make such payment that
such payment is delinquent, then such obligation shall bear interest from the date of such notice
at the rate of eighteen percent (18%) per annum, and the amount payable, including accrued
interest, shall be and become a lien upon the Lot of the defaulting Owner. Such amounts shall
also be and remain a recourse obligation against the defaulting Owner, and accordingly, the
Owner that paid the amount (the "Paying Party'I may bring an action in law or equity against
the defaulting Owner to recover the amounts payable pursuant to this section if such amounts are
not paid when due and the defaulting Owner has not in good faith challenged or objected to such
amount. Additionally, the Paying Party may enforce the above -referenced lien by filing a
statement of lien in the Larimer County, Colorado real property records, which statement shall
set forth the name of the defaulting Owner, the legal description of the defaulting Owner's Lot
and the amount then owing to the Paying Party. Such statement shall be signed and
acknowledged by the Paying Party. Following the recordation of such notice, the Paying Party
3
4835-1543-3236.2
may proceed to foreclose the lien in the same manner as provided for the foreclosure of
mortgages on real property under the statutes of the State of Colorado. In connection with any
action brought by a Paying Party to collect amounts due and payable to it or to foreclose its lien
as described above, the Paying Party shall be entitled to recover the amounts then owing to it in
accordance with this section together with interest thereon, the cost of recording the lien, costs of
suit and reasonable attorneys' fees incurred by it in connection with such action. The Paying
Party shall have the power to, bid at any foreclosure sale and to acquire, hold, lease, sell,
mortgage and.convey any property acquired by it as a result of any such sale.
5. Parcel E Built, a Permit: Plat Amendment. The Parcel E Owner may
terminate this Agreement by written notice to the Lot 2 Owner if the Parcel E Owner does not
receive a building permit from the City. for its planned building on Parcel E. Neither party may
record this Agreement in the real estate records until such time as all of the following have
occurred: (A) the Parcel E Owner has received a building permit from the City for its planned
building on Parcel E and has commenced construction of such building; and (B) the Parcel E
Owner has completed the re -plat of Parcel E (the "Replat"), which Replat will result in a change
in the size and legal description of Parcel E, and the parties to this Agreement have replaced the
legal description of Parcel E attached to this Agreement at Exhibit A on the date of this
Agreement with the new legal description for Parcel E. The Lot 2 Owner acknowledges and
agrees that as part of the Parcel E Owner's planned development of Parcel E, the size and legal
description of Parcel E will change pursuant to the Replat; provided, however the Replat shall be
otherwise consistent with the terms of this Agreement including the size and capacity of the
Storm Sewer Line. The Lot 2 Owner further agrees that upon the completion of Replat, the new
legal description for Parcel E will be substituted for the legal description attached at Exhibit A
on the date of this Agreement. The Parcel. E Owner shall pay to the Lot 2 Owner the amount of
Ten Thousand and No/100 Dollars ($10,000.00) by certified funds or wire transfer ("Payment"),
upon the completion of all of the following: (I) the Parcel E Owner's receipt of a building permit
from the City for its proposed building on Parcel E; (II) completion of the Replat and the
substitution of the Parcel E legal description at Exhibit A to this Agreement with the new Parcel
E legal description; and (III), the recording of this Agreement in the real estate records of
Larimer County, Colorado. The Parcel E Owner shall make the Payment to the Lot 2 Owner
before recording this Agreement.
6. Amendment. This Amendment may only be amended or modified by a written
instrument entered into by both Owners and, if this Agreement has been'recorded, re -recorded in
the real estate records of Larimer County, Colorado. The record title holder of fee simple title to
the Lots, whether one or more Person per Lot, are referred to individually as an "Owner" and
collectively as the "Owners". The term Lot 2 Owner means and includes any future Owner of
Lot 2 and the term Parcel E Owner means and includes and fixture Owner of Parcel E. "Person"
means a natural person, a corporation, a partnership or any other public or private entity
recognized as being capable of owning real property under Colorado law.
7. Miscellaneous.
(a) Notices. All notices and approvals required or permitted under this
Agreement shall be served by either certified mail, return receipt requested, by hand delivery, to
the particular Owner's address set forth in this Agreement or the most recent address for such
4
4835-1543-3236.2
Owner on record with the Larimer County, Assessor's office. Date of service of notice or
approval shall be the earlier of the date on which such notice is received by the party or five (5)
days after being properly sent pursuant to this section. Any party may change its address for
notices by giving notice of such change to all other parties pursuant to this section.
(b) Run With Land. This Agreement and all the provisions hereof are and
shall be covenants running with the title to each of Lot 2 and Parcel E and shall burden and bind
each of Lot 2 and Parcel E for the duration hereof. To that end, this Agreement shall be deemed
incorporated into all deeds and conveyances hereafter made by any party with respect to each of
Lot 2 and Parcel E. Every person, including a mortgagee, acquiring or holding any interest or
estate in any portion of a Lot shall take or hold such interest or estate, or the security interest
with respect thereto, with notice of the terms and provisions of this Agreement and shall be
deemed to have assented to this Agreement and all of the terms and provisions hereof. No
Owner may waive or otherwise escape liability for its share of costs and expenses hereunder by
abandonment of its particular Lot.
(c) No Merger. It is the intention of the Owners that the covenants,
conditions and restrictions set forth in this Agreement continue to burden and benefit, as
applicable, each of Lot 2 and Parcel E, notwithstanding the fact that, at any time, the same
Person may own each of Lot 2 and Parcel E, or any portions thereof. Any such multiple
ownership will not result in the merger of the respective interests, rights and obligations of the
Owners created hereunder.
(d) Further Assurances. Each of the parties and their respective successors
and assigns agrees to execute any and all additional documents and writings which may be
reasonably necessary or required to achieve the purposes and intent of this Agreement or the
operation of its provisions.
(e) Attorneys' Fees. Should any party institute an action or proceeding in
court or through arbitration to enforce any provision hereof or for damages by reason of any
alleged breach of any provision of this Agreement or for any other judicial remedy, the
prevailing party shall be entitled to receive from the losing party all reasonable attorneys' fees
and court costs in connection with such proceeding.
(f) Governin„g Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
5
4935-1543-3236.2
The undersigned have executed this Agreement as of the day and year first above written.
Lot 2 Owner:
4803 Boardwalk, LLC,
a Colorado -limited liability company
By: ea!:t�
Name: Richard T. Callan
Its: Manager
STATEOF
COUNTYOFL•.1 _ ..��
The foregoing document was acknowledged before me this 44- day
. 2013, by Richard T. Callan as Manager of 4803 Boardwalk, LLC.
WITNESS my hand and official seal.
My Commission Expires: PS.cQQ.L
Parcel E Owner:
Ft. Collins Development Co., LLC,
a Colorado limited liability company
AIV
STATE OF atcq'ado
1
9s.
COUNTY OF Otftjw Y' )
of
The foregoing document ac wiedged before me this � day of
2013, by ', as h of Ft. Collins
Devetopm6nt Co., LLC.
WT1NESS my lid and official seal,
My Commisaon Expires;
a -Isa3 32M2
Exhibit A
Legal Description of Parcel E
LEGAL DESCRIPTIM: PARCEL. E
That part of Lot 3, Miramont Office lark and located in Section `l, To%anship 6 ;Forth, Range 69
Next of them Principal Metidian, City or port Collins, Larimer County, Colorado, bciltg more
particulatly described as foltows:
Considering the North line of f of 2 as bearing South 85P48'55" But with all bearings contained
herein relative thereto.
Commencing at the Northwest Corner of said Lot 3, Nfirutaont Office Park, thtnee along the North
line of sxid Lot 3, South 8904855" Fast, 141.17 feet to the POf,,4T OF 13EGIN"NI`°G, said point
being on the north line of said tot 3, Mirarnont Office Paris and the Westerly line of a drainage .
access and utility casement; thence continuing, along said North line, South 89°48'55" East, 92,00
feet to a point on an Easterly line orsaid drainage access and utility easement; ; thence along the
East, South and West lints orsald drainage access and utility easement by the folioMng five (5)
courses and distances; thence, South 00°22r10" West, 113.33 €eat;1hetrcc, North 91)'17'30" West.
rsfi,t'0 fern thrrter, North 0i)°23'it)" Fast, 25.00 felt; thtnca, \urth 39°37'50" West, 4.00 feet; thence,
North 00'22'10" Etist. 88,M feet to the Point of Beginning.
Tt a above dcwrtbcd tract of land contains 0,237 saes more or less and is subject io all easetttettts
3nJ tighrs•o' •ay now on recard or existing,.
SO-�33tcapg
li• }A.{l4 lir1N
VA
4835-1543-3236.2
Exhibit B
Depiction of Storm Sewer Line and Onsite Swale Area Locations
4835-1543-3236.2
F4WAIIAW 4MX4Wft WVWW4C& ■ U=@ FAdWAPOMMOM120W Pdw*id-OPP=2►joC$pn q." wk L%ved+ onopi,, 2012•tow
I
` I
f
I
N
-------------
'1 I
`„'A06*0 POND
PfVVlO W - tY3 AC4Ft
WCltkNrll * &A4 A£ -FT
i
rla �r
i
i
I-TI I
`. yr
.+ +'
PIPE OPTION
**n THF. LEARN MRtE .�. ,