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HomeMy WebLinkAboutSP-22-060 - Supplemental - 0339 Garden Street (17)EASEMENT DEED KNOW ALL PERSONS BY THESE PRESENTS, that SOUTH BURLINGTON CITY CENTER, LLC, a Vermont limited liability company with its principal place of business in Burlington, Vermont (“Grantor”), in consideration of the sum of Ten and More Dollars paid to its full satisfaction by the CITY OF SOUTH BURLINGTON SCHOOL DISTRICT, a municipal school district located in the County of Chittenden and State of Vermont (“Grantee”), by these presents does freely GIVE, GRANT, SELL, CONVEY, AND CONFIRM unto the Grantee, the CITY OF SOUTH BURLINGTON SCHOOL DISTRICT, and its successors and assigns forever, two certain access easements over a parcel of land located in the City of South Burlington in the County of Chittenden and State of Vermont (the “Easements”) described as follows, viz: Easement #1 – Driveway Easement Being an easement twenty (20) feet in width for the Grantee and its successors and assigns to construct, reconstruct, maintain and replace at its sole cost and expense, a driveway for access to Grantee’s property, which is depicted as the “Proposed Future 20’ Access Easement for the Benefit of School Property” (the “Driveway Easement”) on a plan entitled: “Overall Site Plan, South Burlington City Center, Catamount Run, Market St. & Garden St., South Burlington,” prepared by The Snyder Group, Inc. dated November 7, 2022, last revised December ____, 2022 and to be recorded in the City of South Burlington Land Records (the “Plan”). The Driveway Easement has been aligned for the future connection of Grantee’s property to the existing driveway/parking aisle area on Grantor’s land in the general location shown on the Plan, to provide secondary access only over Grantor’s parking aisles depicted on the Plan for vehicular ingress and egress to Garden Street. The centerline of the Driveway Easement shall be the centerline of the driveway access as installed. In the event Grantee or its successors and assigns exercises its rights hereunder, Grantee shall be solely responsible for all permitting and construction for its driveway access, including the permitting and construction associated with the relocation of Grantor’s existing dumpster enclosure to a location approved by Grantor and its successors and assigns. Construction performed by Grantee under this Driveway Easement shall be done in a manner so as not to interfere with Grantor’s use and enjoyment of Grantor’s property and shall not impede or impact in any way Grantor’s current or future ability to utilize Grantor’s property for its intended use. In no event shall the actions of the Grantee result in a reduction in the total number of parking spaces available for the Grantor’s exclusive use. Easement #2 – Pedestrian Easement Being an easement fifteen (15) feet in width for the Grantee and its successors and assigns to construct, reconstruct, maintain and replace at its sole cost and expense, a sidewalk or path for pedestrian access to Grantee’s property, which is depicted as the “Future Pedestrian Access” on the Plan (the “Pedestrian Easement”). The Pedestrian Easement has been aligned for the future connection of Grantee’s property to the existing sidewalk area on Grantor’s land in the general location shown on the Plan, to provide secondary access only over Grantor’s sidewalks and pedestrian crosswalks depicted on the Plan for pedestrian ingress and egress to Garden Street and the City Hall/School Driveway – Future Street shown on the Plan. The centerline of the Pedestrian Easement shall be the centerline of the sidewalk or path as installed. In the event Grantee or its successors and assigns exercises its rights hereunder, Grantee shall be solely responsible for all permitting and construction for its pedestrian access, including the permitting for the relocation of any of Grantor’s existing improvements in the location of the proposed sidewalk to a location approved by Grantor and its successors and assigns. Construction performed by Grantee under this - 2 - Pedestrian Easement shall be done in a manner so as not to interfere with Grantor’s use and enjoyment of Grantor’s property and shall not impede or impact in any way Grantor’s current or future ability to utilize Grantor’s property for its intended use. The Easements have been provided pursuant to Section 13.02 of the City of South Burlington Land Development Regulations (the “LDRs”), which requires commercial lots (retail, restaurant, office, and service uses) to provide a driveway connection to any adjacent commercial lot. Currently, Grantee’s property is used as a school and has not been developed as a commercial lot. Although Grantor is willing to allow the Driveway Easement and Pedestrian Easement to be used in the future if Grantee’s property is ever redeveloped or used for commercial purposes (retail, restaurant, office and services uses), Grantor is not willing to permit the Access Easement or Pedestrian Easement to be used for access for so long as Grantee’s property is used for school purposes. Therefore, the conveyance of the Driveway Easement and Pedestrian Easement is subject to the following conditions: 1. For so long as Grantee’s property is used for school purposes, the Driveway Easement and Pedestrian Easement shall not go into effect and Grantee and its successors and assigns shall not have the right to use the Driveway Easement or the Pedestrian Easement for any reason. 2. In the event the school uses on Grantee’s property are discontinued and the uses on Grantee’s property are changed to commercial uses (retail, restaurant, office and services uses), then the Driveway Easement and Pedestrian Easement shall be and become fully effective and Grantee and its successors and assigns shall have the full right and title to use the Driveway Easement and Pedestrian Easement for their intended purpose as long as reciprocal easements are also conveyed by Grantee and its successors and assigns to Grantor and its successors and assigns, in accordance with Section 13.02 of the LDRs, at the time that Grantee proceeds with the permitting of a commercial use on Grantee’s property. 3. Should either parcel cease being used for commercial purposes, as defined in the LDRs, the Driveway Easement and Pedestrian Easement shall terminate and Grantee shall, at its own expense, restore Grantor’s property in a manner that is satisfactory to Grantor, to include removal of the driveway and/or pedestrian connection. 4. The conveyance of the Driveway Easement and Pedestrian Easement is also subject to the following terms and conditions to take effect when such Easements go into effect, if ever: (a) Grantee and its successors and assigns shall not use the Driveway Easement and Pedestrian Easement in any way that materially interferes with or otherwise unreasonably restricts or overburdens Grantor’s use and enjoyment of the Easement areas for their intended purpose. In no event shall the actions of the Grantee result in a reduction in the total number of parking spaces available for the Grantor’s exclusive use. (b) Grantee and its successors and assigns covenant and agree to pay a pro rata share of the costs to maintain and repair the shared portion Easement areas (and any improvements thereon), including snow removal and paving or repaving. (c) Grantee and its successors and assigns further agree to indemnify, defend and hold Grantor and its successors and assigns harmless from and against any and all - 3 - liability, loss, damage, claim, cost, expense or fee, including attorneys’ fees and disbursements, of any kind or nature, resulting from personal injury and/or property damage, due to or arising out of the construction, operation, use, maintenance, repair or replacement of improvements within the Easement areas, provided that such claim, liability, damage, loss or expense is not caused by the negligence of Grantor or its tenants, agents or licensees, unless it is also caused by the negligence of Grantee, in which case indemnity shall not apply to the portion of such claim, liability, damage, loss or expense under applicable comparative negligence principles that is applicable to any such person indemnified hereunder. (e) Grantee and its successors and assigns shall maintain such insurance for claims for damages because of bodily injury, including death in the amount of not less than $1,000,000.00 per occurrence or such other amount as may be agreed upon by the parties; and from claims for damages to property in the amount of not less than $1,000,000.00 per occurrence or such other amount as may be agreed upon by the parties which may arise out the Grantee’s use of the Easement areas. Such insurance policy shall name the Grantor as an additional insured, and a certificate of such insurance shall be furnished to Grantor upon request. While the Grantee’s property is used for school purposes, should the Grantor seek and obtain City approvals to redevelop or substantially expand existing improvements on the Grantor’s land which conflict with the Driveway Easement and/or Pedestrian Easement described herein, then the Driveway Easement and Pedestrian Easement shall terminate. The Grantor will consider granting new easements pursuant to the requirements of the City of South Burlington Land Development Regulations that may then be in effect. Grantor also reserves the right, in its sole and absolute discretion, to relocate the Driveway Easement and/or Pedestrian Easement to a new location on Grantor’s property to accommodate the development and/or operations on the Grantor’s property, provided that the relocation work is performed by Grantor at its expense, and provided that the replacement easements do not: (i) significantly lessen the utility of the Easements; (ii) increase the burdens on the owner of the Easements in its use and enjoyment; or (iii) frustrate the purpose for which the Easements were created. The Easements are a portion of the land and premises conveyed to South Burlington City Center, LLC by Quit Claim Deed of Randall G. Munson d/b/a South Burlington Realty Company dated January 30, 2009 and recorded in Volume 853 at Page 222 of the City of South Burlington Land Records. The Easements are subject to the following: (a) the provisions of municipal ordinances, public laws and special acts; and (b) all easements and rights of way of record, or as shown on the Plan, not meaning to reinstate any claims barred by operation of the Vermont Marketable Record Title Act, 27 V.S.A. § 601, et seq. Reference is hereby made to the above-mentioned instruments, the records thereof, the references therein made, and their respective records and references, in further aid of this description. TO HAVE AND TO HOLD said granted Easements, with all the privileges and appurtenances thereto, to the said Grantee, CITY OF SOUTH BURLINGTON SCHOOL DISTRICT, and its successors and assigns, to their own use and behoof forever; and the said Grantor, SOUTH BURLINGTON CITY CENTER, LLC, for itself and its successors and assigns, does covenant with - 4 - Grantee and its successors and assigns, that until the ensealing of these presents, Grantor is the sole owner of the Easements, and has good right and title to convey the same in the manner aforesaid, that the said Easements are FREE FROM EVERY ENCUMBRANCE, except as aforementioned; and it hereby engages to WARRANT and DEFEND the same against all lawful claims whatsoever, except as aforementioned. IN WITNESS WHEREOF, SOUTH BURLINGTON CITY CENTER, LLC, as evidenced by the signatures of its Duly Authorized Agent, does hereby execute this Easement Deed this ____ day of ______________, 2022. SOUTH BURLINGTON CITY CENTER, LLC By: Duly Authorized Agent STATE OF VERMONT COUNTY OF CHITTENDEN, SS. Before me, on this _____ day of ________________, 2022, personally appeared ______________________, Duly Authorized Agent of SOUTH BURLINGTON CITY CENTER, LLC, known to me to be the person who executed the foregoing instrument, and he acknowledged this instrument, by him signed, to be his free act and deed and the free act and deed of SOUTH BURLINGTON CITY CENTER, LLC. _______________________________________ Notary Public – State of Vermont Printed Name: Commission No.: Commission Expires: 1/31/23 <1838301v1/RHR>