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HomeMy WebLinkAboutBlackmore Bend Shared Parking AgreementReturn to: __________________ __________________ __________________ DECLARATION OF RECIPROCAL ACCESS AND PARKING EASEMENT This Agreement is made and entered into as of March _____, 2017, by and among East Main Investments, LLC, Montana limited liability companies of 1184 North 15th, Suite 4, Bozeman, MT 59715 (“Developer”) and O-S Leasing Partners, LLP, a Montana limited liability partnership, of 203 Haggerty Lane, Bozeman, MT 59715 (“Owner”). Developer is the owner of certain real property in Gallatin County, Montana as described on Exhibit “A” attached hereto (the “Developer Tracts”), upon which Developer and its affiliates intend to develop a mixed-use project (the “Project”); Owner is the owner of certain real property in Gallatin County, Montana as described on Exhibit “A” attached hereto (the “J&H Tract”), currently consisting of an office equipment company ("J&H") and parking lot with nineteen (11) parking spaces; Developer and Owner have agreed to a joint Master Site Plan Application wherein In connection with the development of the Project and its related Master Site Plan which is attached hereto as Exhibit “B”, Developer intends to construct various site improvements to include parking stalls and single accesses to Highland Boulevard, East Main Street and two accesses to Haggerty Lane. Owner desires to create a non-exclusive easement so Developer, as owner of the Developer Tracts, its successors and assigns, and their respective tenants, agents, servants, employees, contractors, officers, directors, members, guests, customers, invitees, vendors and those others coming to the Developer’s Tracts (collectively the “Developer’s Licensees”), can use the parking spaces on Parcel A for parking; and Developer desires to create a non-exclusive easement so Owner, as owner of the J&H Tract, its successors and assigns, and their respective tenants, agents, servants, employees, contractors, officers, directors, members, guests, customers, invitees, vendors and those others coming to the Tract (collectively the “Owner’s Licensees”), can use the parking spaces to be constructed on Parcel B for parking. Now, therefore, in consideration of the mutual covenants and conditions set forth herein, Owner, Tenant, and Developer agree as follows: Grant of Reciprocal Easements. Subject to the terms and conditions herein, Developer hereby grants a non-exclusive perpetual easement appurtenant to the J&H Tract so that Owner, its successors and assigns, Tenant, its successors and assigns, and Owner’s or Tenant's Licensees can use the parking spaces to be constructed and located upon Parcel B, as shown on Exhibit “B”, attached hereto and made a part hereof, for parking. This non-exclusive easement shall allow vehicular and pedestrian traffic on, over and across the portions of Parcel B to be paved necessary to allow those using the parking spaces to walk from those parking areas to the KFC Tract. Subject to the terms and conditions herein, Owner hereby grants a non-exclusive perpetual easement appurtenant to the Developer Tracts so that Developer, its successors and assigns and Developer’s Licensees can use the parking spaces located upon Parcel A for parking. This non-exclusive easement shall allow vehicular and pedestrian traffic on, over and across the paved portions of Parcel A necessary to allow those using the parking spaces to walk from those parking areas to the Developer Tracts. Because of the appurtenant nature of the foregoing easements, the same shall be deemed to pass with any conveyances or transfers of any of the J&H Tract or the Developer Tracts, as the case may be, whether or not such conveyances or transfers specifically describe or include the same. Access and Interference. No barricade or other divider shall be constructed between the Developer Tracts and Parcel A to prohibit or discourage the use of the parking easements granted herein; provided however, any party may Costs. The use of the reciprocal easements shall be without cost and without payment of fee or charge to either party. Duration. Except as set forth in paragraph 7, these parking easements shall run with the land and are binding on all parties having any right, title or interest in the described property or any part thereof, their heirs, executors, successors, administrators and assignees, and shall bind each owner thereof. Construction and Maintenance. Developer and Owner agree to the creation of and participation in an Owners’ Association with jurisdiction over the Developer Tracts and the Owner Tracts. The Owners’ Association will provide for the maintenance of all parking areas and landscaping areas on terms and conditions mutually agreeable by Developer and Owner. The terms and conditions associated with the construction of all improvements required by the final Master Site Plan are provided for in a separate Construction Agreement entered in to by Developer and Owner. Termination. Unless otherwise agreed between the Developer, Owner, and Tenant, this Agreement and the easements contained herein shall automatically expire and terminate in the event that development of the Project is not commenced by Developer, or its successors or assigns, within two (2) years of the date of this Agreement. In that case, any party shall have the right to provide written notice of the termination of this Agreement to the other parties, or their successors or assigns, and record such notice in the real estate records of Gallatin County, Montana. In addition, in the event Developer chooses to not proceed with the Project, in its sole discretion, any time within the two (2) year period referenced above, Developer shall have the right to provide written notice of the termination of this Agreement to the other parties, or their successors or assigns, and record such notice in the real estate records of Gallatin County, Montana. All holders of recorded interests in Parcels A and B at the time of termination shall execute a document terminating this Agreement for purposes of recording the same. Mutual Indemnification. a. Owner agrees that it shall at all times fully defend, indemnify and hold Developer and its owners, officers, members, directors, shareholders, employees and agents harmless from and against all claims, damages, judgments, penalties, costs, liabilities, losses and fees (including any and all sums paid for settlement of claims, attorney fees, consultant and expert fees, whether incurred prior to trial, at trial or on appeal), whether relating to injury to or death of any person or damage to any property, resulting from or in any way arising out a breach of this Agreement by Owner or from Owner’s use of the easement area on Parcel B. b. Developer agrees that it shall at all times fully defend, indemnify and hold Owner and its owners, officers, members, directors, shareholders, employees and agents harmless from and against all claims, damages, judgments, penalties, costs, liabilities, losses and fees (including any and all sums paid for settlement of claims, attorney fees, consultant and expert fees, whether incurred prior to trial, at trial or on appeal), whether relating to injury to or death of any person or damage to any property, resulting from or in any way arising out a breach of this Agreement by Developer or from Developer’s or Developer’s Licensees use of the easement area on Parcel A. Insurance. a. Each party shall, with respect to the parking easement on its tract, maintain or cause to be maintained in full force and effect Comprehensive General Liability Insurance, including Personal Injury Liability Insurance and Contractual Liability Insurance with a financially responsible insurance company or companies licensed in Montana, with a minimum rating acceptable to the other party; such insurance to provide for a limit of not less than One Million Dollars ($1,000,000.00) per occurrence with a Two Million Dollar ($2,000,000.00) annual aggregate. Additionally, such insurance shall include the following minimum requirements: (i) shall provide coverage on an occurrence basis; (ii) shall provide that the policy may not be cancel led or materially reduced in amount or coverage without at least 30 days’ prior written notice by the insurer to the other parties; (iii) shall include the other parties as additional insured; (iv) shall provide for severability of interests; and (v) shall provide that an act or omission of one of the insureds or additional insureds which would void or otherwise reduce coverage, shall not reduce or void the coverage as to the other additional insureds or the insured, respectively. Such insurance shall specifically extend to the contractual obligation of the insured Party arising out of the indemnification obligations set forth in this Agreement. b. Each party with respect to the portions of its property not part of the parking easements as set forth herein shall maintain or cause to be maintained in full force and effect Comprehensive General Liability Insurance, including Personal Injury Liability Insurance and Contractual Liability Insurance with a financially responsible insurance company or companies licensed in Montana. Not a Public Dedication. Nothing contained herein shall be deemed to be a gift or dedication of any portion of the tracts or parcels to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of any party hereto shall inure to the benefit of any third-party person, nor shall any third-party person be deemed to be a beneficiary of any of the provisions contained herein. Dispute Resolution. The parties agree that in the event of a dispute arising hereunder, the parties agree to meet and confer on the issues for the purpose of resolving all issues without further dispute or protracted dispute resolution. In the event the “meet and confer” method does not resolve a dispute, then all disputes hereunder shall be resolved by binding arbitration, according to the rules and procedures of the American Arbitration Association. Governing Law. This Agreement has been prepared pursuant to the laws of the State of Montana, shall be interpreted, construed and applied pursuant to the laws of Montana. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Remedies. The failure of any party to perform any provisions hereunder shall constitute a breach. The remedies available to the non-breaching party or parties shall be pursuant to Montana law, and shall be resolved under the dispute resolution provision set forth above. Notice. Any notice or other communication which a party is required or may desire to give another party shall be in writing and may be delivered (1) personally, (2) by United States Mail, as a registered or certified item, postage prepaid with return receipt requested, (3) by Federal Express or other reputable courier service regularly providing proof of delivery (with charges paid by the party sending the notice), or (4) electronic transmission, in which case notice shall be deemed delivered upon electronic verification that transmission to recipient was completed. Rejection or other refusal to accept notice, or the inability to deliver notice because of changed address of which no notice was given, shall be deemed to be receipt of the notice. Attorney Fees. If any arbitration, suit, or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement, the party prevailing on an issue will be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in the preparation, prosecution, or defense of such arbitration, suit, or action as determined by the arbitrator or trial court, and, if any appeal is taken from such decision, reasonable attorney fees as determined on appeal. Severability. If any provision of this Agreement is deemed to be invalid or unenforceable in any respect for any reason, the validity and enforceability of such provision in any other respect and of the remaining provisions of this Agreement will not be impaired in any way. Entire Agreement. This Agreement (including the documents and instruments referred to in this Agreement) constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and agreements, whether written or oral, among the parties with respect to such subject matter. This Agreement may not be altered, changed or amended, except by an instrument in writing signed by all parties hereto. DATED as of ________________________, 2016. [Signature and Notary Blocks to be provided] DEVELOPER: EAST MAIN INVESTMENTS, LLC, a Montana limited liability company By: ___________________________________ Donald E. Cape, Jr., Manager OWNER: O-S LEASING PARTNERS, LLP a Montana limited liability partnership By: ___________________________________ Ric Tieman, its EXHIBIT “A” “Owner Tract” 203 Haggerty Lane, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Acres 1.152, Tract 5 Remainder, Plat H-29 “Parcel A” 203 Haggerty Lane, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Acres 1.152, Tract 5 Remainder, Plat H-29 “Developer Tracts” 1324 East Main Street, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Ares 2.309, Tract 5C IN SW4, Plat H-29-D 1322 East Main Street, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Acres 0.888, Tract 5D IN SW4, Plat H-29-D 1340 East Main Street, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Acres 1.13, Tract 1, Plat H-29 “Parcel B” 1324 East Main Street, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Ares 2.309, Tract 5C IN SW4, Plat H-29-D 1322 East Main Street, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Acres 0.888, Tract 5D IN SW4, Plat H-29-D 1340 East Main Street, Bozeman, MT legally described as: Elks Club Property Rearranged, S08, T02 S, R06 E, Acres 1.13, Tract 1, Plat H-29 EXHIBIT “B” [INSERT FINAL MASTER SITE PLAN AS APPROVED BY CITY OF BOZEMAN]