HomeMy Public PortalAbout5d Frodo Shared Facility Agreement
SHARED FACILITIES AND EASEMENT AGREEMENT
The parties to this Shared Facilities and Easement Agreement (this “Agreement”) are the
TOWN OF FRASER, COLORADO, a municipal corporation of the State of Colorado (“Fraser”
or “Town”), and YOUNGS REAL ESTATE CO., LLC, a Colorado limited liability company,
("YREC@). The Town and YREC are sometimes referred to collectively as the “Parties”.
RECITALS
A. YREC owns real property situate in Grand County and the Town of Fraser, Colorado,
described as follows:
Lots 14, 15, 16, 17, 18, and all that part of Lot 13 lying Northeasterly of the right
of way of U.S. Highway No. 40, Block 7, FIRST ADDITION TO THE TOWN
OF EASTOM,
TOGETHER WITH that portion of vacated Eastom Avenue, as described in
Ordinance No. 275 recorded December 11, 2001, at Reception No. 2001-012436
of the records in the office of the Clerk and Recorder of Grand County, Colorado,
located adjacent to the northerly boundary of said Lots 14-18,
(herein referred to as the "YREC Property");
B. Fraser owns the adjoining property, also situate in Grand County and the Town of Fraser,
described as follows:
Lots 19, 20, 21, 22, and 23, Block 7, FIRST ADDITION TO THE TOWN OF
EASTOM,
EXCEPT the Easterly 14.50 feet of said Lot 23 as described in Warranty Deed
recorded December 11, 2001, at Reception No. 2001-012437,
TOGETHER WITH that portion of vacated Eastom Avenue, as described in
Ordinance No. 275 recorded December 11, 2001, at Reception No. 2001-012436
of the records in the office of the Clerk and Recorder of Grand County, Colorado,
located adjacent to the northerly boundary of said Lots 19-23,
(herein referred to as the "Town Property");
C. YREC intends to develop the YREC Property for use and operation of distillery and
tasting room, which may also include a brewery, brewpub, restaurant, bar, retail space,
medical and/or professional offices, and related facilities, for commercial purposes. The
Town Property may also be developed in the future for commercial and/or residential use.
D. In order to facilitate such development of the adjoining YREC Property and the Town
Property (collectively, the “Properties”), the Parties are entering into this Agreement to
Shared Facilities and Easement Agreement
Page 2 of 6
establish and confirm certain easements and shared responsibilities with respect to the
use, improvement and maintenance of the Properties and adjoining ways.
E. This Agreement shall become effective upon adoption of a Resolution by the Fraser
Board of Trustees approving its execution and upon execution hereof by the appropriate
Fraser official and by authorized agents of the YREC. The date of the latest of such
conditions to occur is referred to as the "Effective Date".
NOW THEREFORE, for and in consideration of the premises, mutual promises and covenants
herein contained, and for the other consideration offered and accepted, the receipt and adequacy
of which is hereby acknowledged, the Town and YREC agree as follows:
ACCESS, STORMWATER AND SIGN EASEMENTS
1. Access Easement. In order to facilitate access to the Properties, the Parties agree to, and
hereby grant and convey an access easement along the common boundary of the Properties, and
encompassing a portion of Lots 18 and 19 and vacated Eastom Avenue (the “Access Easement”),
as more particularly described on Exhibit A attached hereto and incorporated herein by this
reference. Such Access Easement may be used by the Parties and their successors and assigns,
and by their respective agents, guests, contractors and invitees, for vehicular and pedestrian
access to the Properties and any parking areas thereon. Except as necessary during construction
or maintenance activities, no barriers or obstructions shall be placed upon the Access Easement
that would impede the passage of vehicular or pedestrian traffic, except with the written
permission of each Party.
2. Stormwater Easement. In order to provide for drainage of stormwater from each Property,
the Parties agree to, and hereby grant and convey a stormwater easement on a portion of each
Property (the “Stormwater Easement”), as more particularly described on Exhibit B attached
hereto and incorporated herein by this reference. Such Stormwater Easement shall be used for
the installation and maintenance of storm drainage facilities, as more fully provided in Sections
5-7 below.
3. Sign Easement. YREC hereby grants and conveys to Fraser a nonexclusive easement for
installation of a sign on the YREC Property (the “Sign Easement”) in the location described on
Exhibit C attached hereto and incorporated herein by this reference. Such Sign Easement may be
used by Fraser, its successors and assigns, for the installation and maintenance of a sign, which
may identify or advertise businesses or activities on the Town Property or other Town matters.
By mutual agreement, the Parties may install a joint signage structure on the Sign Easement,
which includes signs relating to each Party’s activities. All such signs shall comply with
applicable Town regulations.
4. The owners of the YREC Property and the Town Property may each assign their
interests in the Access Easement and Stormwa ter Easement in whole or in part, but only
to a person or entity having a legal or equitable interest in such Property, and only for
the purpose s provided herein . A conveyance of fee simple title to the YREC Property
or the Town Property or any portion th ereof shall be deemed to include the right to use
Shared Facilities and Easement Agreement
Page 3 of 6
the Access Easement and Stormwater Easement as an appurtenance thereto without any
specific mention thereof, unless otherwise expressly provided in the instrument of
conveyance. The Sign Easement may only be transferred or assigned by an instrument
executed by Fraser that specifically refers to such Easement.
SHARED IMPROVEMENTS AND MAINTENANCE
5. Shared Improvements. The Parties agree to equally share the costs of grading and paving
the roadway on the Access Easement and the roadway on the public alley located along the
southern boundary of the Properties, which also serves as access to the Properties. The Parties
further agree to equally share the costs of installing and constructing the stormwater draina ge
facilities on the Stormwater Easement. Such improvements shall generally conform to the
conceptual plans previously submitted to the Town by YREC. YREC shall be responsible for
preparation of the final construction plans for such improvements and shall submit the same to
Fraser for approval. Young LLC shall promptly proceed with such plans and necessary
arrangements for construction as provided in Section 6, so that all such construction is completed
not later than _____________.
6. Construction. Upon approval of the construction plans, Young LLC shall obtain a written
proposal for construction of the improvements from a reputable contractor and submit such
proposal to Fraser for approval before proceeding with the work. Separate proposals may be
obtained for the access improvements and the stormwater improvements, if reasonably necessary
for cost savings or other reasons. Such proposal(s) shall conform to the requirements for public
improvements of the same type and scope within the Town and shall otherwise be acceptable to
Fraser. If the parties cannot agree on the contractor or the terms of such proposal, the project
will be put to bid in accordance with the Town’s usual bidding and construction practices. Each
Party shall be responsible for timely payment of one-half (1/2) of the construction costs, as and
when such costs are incurred.
7. Maintenance. Following completion of the access and stormwater improvements, the
costs of future maintenance, repair or replacement of such improvements, including snow
removal from the Access Easement and adjacent alley, shall be shared equally by Young LLC
and Fraser, or the future owners of their respective Properties. Routine maintenance, including
snow removal, will be performed in a manner mutually agreed by the Parties, or in the absence
of agreement, the necessary work will be put to bid in accordance with the Town’s usual bidding
practices. If the Parties are unable to agree on any proposed major repair or replacement, the
issue will first be submitted to mediation by a neutral third party who is a licensed engineer, with
the costs of such mediation being shared equally by the Parties. If such mediator recommends
that the repair or replacement be made, then the necessary work will be put to bid in accordance
with the Town’s usual bidding practices. Each Party shall be responsible for timely payment of
one-half (1/2) of the costs for maintenance, repair or replacement, as and when such costs are
incurred.
Shared Facilities and Easement Agreement
Page 4 of 6
REMEDIES
8. In the event that either Party shall fail to perform or comply with any term or provision of
this Agreement, that Party shall be liable to the other party for all costs, expenses and damages
resulting therefrom, and the nondefaulting party shall be entitled to an injunction or other
appropriate relief to enforce this Agreement. Before applying for judicial relief, a Party shall
first exhaust all administrative procedures provided herein for resolution of any dispute.
9. Any payment due from one Party to the other Party pursuant to the terms of th is
Agreement shall bear interest at the rate of one percent (1%) per month from the date that is
thirty (30) days after the date such payment became due until paid.
10. In any event of any litigation arising out of this Agreement, the court shall award to the
substantially prevailing party all reasonable costs and expenses, including attorney fees.
11. Nothing contained herein is intended as a waiver of the protections afforded Fraser by the
Colorado Governmental Immunity Act, 24-10-101, et seq. C.R.S., or any other statutory or
common law immunity.
MISCELLANEOUS PROVISIONS
12. Enforcement and Application of Town Code. The Parties recognize and agree that the
Town has the right to enforce its rules, policies, regulations, and Code provisions applicable to
property located within the Town, and nothing herein is intended as a waiver of such authority.
Without limiting the foregoing, YREC agrees that the Town may enforce any violation of the
Town’s rules, policies, regulations, ordinances, or Code provisions relating to the YREC
Property by any means allowed by Colorado law.
13. No Waiver. Failure of a party hereto to exercise any right hereunder shall not be deemed a
waiver of any such right and shall not affect the right of such party to exercise at some future
time said right or any other right it may have hereunder.
14. Force Majeure. No party shall be held liable for a failure to perform hereunder due to
wars, strikes, acts of God, natural disasters, floods, drought or other similar occurrences outside
of the control of that party.
15. Severability. If any provision of this Agreement shall be or become invalid or
unenforceable, the remainder of the provisions of this Agreement shall not be affected thereby,
and each and every provision shall be enforceable to the fullest extent permitted by law.
16. Subject to Annual Appropriation. This Agreement is not intended to create a debt or other
multiple-fiscal year financial obligation of Fraser, and any financial obligations of Fraser
hereunder are subject to annual appropriation in accordance with Article X, § 20 of the Colorado
Constitution and other Colorado law.
Shared Facilities and Easement Agreement
Page 5 of 6
17. Entire Agreement. This agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior written and oral agreements and
representations of the parties. Except as expressly provided for herein to the contrary, this
Agreement may not be amended, except by subsequent written agreement of the parties.
18. Recording; Binding Effect. This Agreement shall be recorded in the real property records
of the Clerk and Recorder of Grand County, Colorado, and shall constitute constructive notice of
this Agreement and all of its individual provisions. The provisions of this Agreement shall
constitute covenants and servitudes which shall burden and run with the land comprising the
YREC Property and Town Property and the burdens and benefits hereof shall bind and inure to
the benefit of all estates and interests in such Properties and all assigns and successors in interest
to the parties hereto.
IN WITNESS WHEREOF, the parties have set their hand and official seals the day and year first
above written.
TOWN OF FRASER, COLORADO
By: ____________________________
Philip Vandernail, Mayor
153 Fraser Avenue
P.O. Box 370
Fraser, CO 81637
ATTEST:
_______________________________
Antoinette McVeigh, Town Clerk
STATE OF COLORADO )
) SS.
COUNTY OF GRAND )
Subscribed and sworn to before me this _____ day of ________________, 2017, by
Philip Vandernail, as Mayor, and by Antoinette McVeigh, as Town Clerk of the Town of Fraser,
Colorado.
Witness my hand and official seal.
My Commission expires: _____________.
______________________________
Notary Public
Shared Facilities and Easement Agreement
Page 6 of 6
YOUNGS REAL ESTATE CO., LLC,
BY: _____________________________
TITLE: __________________________
STATE OF COLORADO )
) SS.
COUNTY OF GRAND )
Subscribed and sworn to before me this _____ day of ________________, 2017, by
____________________, as __________________________for and on behalf of Youngs Real
Estate Co., LLC.
Witness my hand and official seal.
My Commission expires: _____________.
______________________________
Notary Public