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HomeMy WebLinkAboutAttorney Reciprocal Parking Esmnt and Shared Mnce Agrmt 1 4938-9258-6759.V2 WHEN RECORDED RETURN TO: Parsons Behle & Latimer Attention: Ross P. Keogh 127 East Main Street, Suite 301 Missoula, Montana 59802 Ref. No.: 36988.004 Geocodes: 06-0798-02-4-07-35-7001, 06-0798-02-4-07-35-7002, 06-0798-02-4-07-35-70031 Space Above for Recorder’s Use RECIPROCAL PARKING EASEMENT AND SHARED MAINTENANCE AGREEMENT THIS RECIPROCAL PARKING EASEMENT AND SHARED MAINTENANCE AGREEMENT (“Agreement”) is dated as of __________, 2025, between PYRALIS SPRINKLER DESIGN, LLC, a Montana limited liability company whose address is P.O. Box 3029, Bozeman, Montana 59772 (“1043A Owner”); [HEENAN & COOK PROPERTIES LLC]2, a Montana limited liability company whose address is 1631 Zimmerman Trail, Billings, Montana 59102 (“1043B Owner” and together with the 1043A Owner, the “1043 Owners”); and ALEAGHA REAL ESTATE, LLC, a Montana limited liability company whose address is 1039 Stoneridge Drive, Bozeman, Montana 59718 (“1039 Owner”). 1043 Owner and 1039 Owner are sometimes referred to herein individually as a “Party” and collectively as the “Parties” with reference to the following: A. 1039 Owner owns that certain parcel of real property located in Gallatin County, Montana (“1039 Parcel”), described as Cabin Creek Condo, Unit 10393, and more particularly described in Exhibit A attached hereto. B. 1043A Owner owns that certain parcel of real property located in Gallatin County, Montana (“Unit 1043A”), described as Cabin Creek Condo, Unit 1043A, which is connected to and a part of the same building as Unit 1043B and more particularly described in Exhibit B attached hereto. C. 1043B Owner owns that certain parcel of real property located in Gallatin County, Montana (“Unit 1043B”), described as Cabin Creek Condo, Unit 1043B, which is connected to and a part of the same building as Unit 1043A, and more particularly described in Exhibit B attached hereto. 1 Note to Draft: 06-0798-02-4-07-35-7000 is the geocode for the Cabin Creek Condo Master. Should we include this and have it recorded against that geocode as well? 2 Note to Draft: This entity was involuntarily dissolved in 2023. 3 Note to Draft: Is this parcel going to have a new legal description once it is removed from the Condo? 2 4938-9258-6759.V2 D. Unit 1043A and Unit 1043B are the two Units which comprise the one building situated on the land adjacent to the 1039 Parcel (the “1043 Parcel”), which is known as the Cabin Creek Condominium (the “Cabin Creek Condo”), memorialized by that certain Declaration and Bylaws for Cabin Creek Condominium recorded as Entry No. 2787226 (together with any amendments thereto, the “Declaration”). E. The 1039 Parcel was originally part of the Cabin Creek Condo but was removed pursuant to the certain [[__]] recorded as Entry No. [[__]], which is attached hereto as Exhibit C. F. The 1043 Owners now comprise all of the Owners of the 1043 Parcel, Cabin Creek Condo, and all of the common elements thereof. G. The 1039 Parcel and the 1043 Parcel are referred to herein individually as a “Parcel” and collectively as the “Parcels”. H. The Parties desire to (1) establish certain easements on, across, over and through the Parcels for ingress, egress, and parking, and (2) define certain terms for shared use and maintenance of the (i) trash disposal area and (ii) trail, all as set forth herein. FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, 1039 Owner and 1043 Owners agree as follows: 1. Easements. (a) Easement Area. The parking area highlighted on the site plan (“Site Plan”) attached as Exhibit C is the “Easement Area”. The Easement Area will remain in the location depicted on the Site Plan, unless otherwise agreed by the Parties by way of an amendment to this Agreement. Except as permitted in this Agreement, no Party will build or construct, or permit to be built or constructed, any building or other permanent structure over or across the Easement Area nor change the contour thereof without the written consent of the other Party. Each Party is specifically permitted to install electronic vehicle charging pedestals and supporting infrastructure. (b) Reciprocal Ingress and Egress. 1039 Owner grants to 1043 Owners and Cabin Creek Condo and its officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, invitees, licensees, assignees, tenants, and concessionaires (collectively, its’ “Permittees”) a nonexclusive easement for ingress and egress by vehicular and pedestrian traffic upon, over and across that portion of the Easement Area located on the 1039 Parcel as depicted on the Site Plan. 1043 Owners and Cabin Creek Condo grants to 1039 Owner and its Permittees a nonexclusive easement for ingress and egress by vehicular and pedestrian traffic upon, over and across that portion of the Easement Area located on the 1043 Parcel as depicted on the Site Plan. (c) Parking. 1039 Owner grants to 1043 Owners and Cabin Creek Condo a nonexclusive easement for vehicular parking upon, over and across the parking areas located on that portion of the Easement Area situated on the 1039 Parcel as depicted on the Site Plan for the benefit of the 1043 Parcel, Cabin Creek Condo, and its Permittees. 1043 Owners and Cabin 3 4938-9258-6759.V2 Creek Condo grants to 1039 Owner a nonexclusive easement for vehicular parking upon, over and across the parking areas located on that portion of the Easement Area situated on the 1043 Parcel as depicted on the Site Plan for the benefit of the 1039 Parcel and 1039 Owner and its Permittees. 1039 Owner and each 1043 Owner may place signage with respect to parking sports adjacent to their building indicating such spots are for the use of that parcel or business and dedicate such parking spots as handicap accessible. (d) Maintenance. 1039 Owner and 1043 Owner shall each be responsible for the maintenance, repair, replacement, and snow removal of the portions of the Easement Area on their respective Parcels. If either Party intends to perform such maintenance in a manner that will block or obstruct any portion of the Easement Area during the hours of 7:00 A.M. until 7:00 P.M. Monday through Friday, the Party performing such maintenance must provide no less than 24 hours written notice to the other Party. 2. Shared Trash Removal Area. The Parties hereby agree to share the cost and maintenance of the area designated on the Site Plan for the placement of the trash receptacles (the “Trash Removal Area”), as shown on the Site Plan. (a) The costs associated with the Trash Removal Area specifically includes the cost of: (i) weekly pickup of all trash and recycling, (ii) quarterly cleaning, inspection, and maintenance of the Trash Removal Area, (iii) regular maintenance and repair or replacement, as necessary, of the fence and gate which encloses the Trash Removal Area, (iv) regular maintenance and repair, as necessary, of the drainage system for the Trash Removal Area, and (v) any additional costs reasonably necessary or incurred to comply with local regulations and maintain the Trash Removal Area in good, clean, functional and orderly state of repair at all times. (b) The cost of such shared maintenance and trash removal will be shared in the following proportion: Proportion of Cost Responsible Party 66.67% 1039 Owner [16.65%] 1043A Owner [16.65%] 1043B Owner 4 4938-9258-6759.V2 (c) Trash Removal Area maintenance and service will be reasonably agreed to by the Parties, including which Party will manage the maintenance and repairs. Payment for services under this Section 4 must be paid or reimbursed within 15 days of notice by the performing party and associated proof of services (such as an invoice). 3. Shared Maintenance of Trail. The Parties hereby agree to share the cost of maintenance of the area along the western border of the Parcels depicted on the Site Plan as a public trail (the “Trail”), as shown on the Site Plan. The cost of such shared Trail maintenance will be shared in the following proportion: Proportion of Cost Responsible Party 66.67% 1039 Owner [16.65%] 1043A Owner [16.65%] 1043B Owner Any maintenance needed for the Trail will be reasonably agreed to by the Parties, including which Party will manage the maintenance and repairs. Payment for services under this Section must be paid or reimbursed within 15 days of notice by the performing party and associated proof of services (such as an invoice). 4. Grantor’s Reservation of Rights. Each Party reserves the right to use the Easement Area, Trash Removal Area, and Trail on its Parcel for any use not inconsistent with the other Party’s use of the same. 5. Maintenance. Each Party will maintain its Parcel at all times in good and clean condition and repair. 6. Insurance. Each Party will maintain or cause to be maintained commercial general liability insurance with broad form coverage insuring against claims on account of bodily injury or death, personal and advertising injury, property damage or destruction, and contractual liability (i.e., exclusions for liability assumed under contract must be deleted) that may arise from, or be related to (i) the conduct of the Party and its Permittees, or (ii) the condition, use or occupancy of each Owner’s Parcel (the “Owner’s Liability Insurance”). The Owner’s Liability Insurance will name each other Party as an “additional insured” under the policy or policies and will have a combined single limit (covering personal injury, bodily injury or death and property damage or destruction) with a limit of not less than [$1,000,000] per occurrence. The limits of such policies may be reviewed by the Parties and adjusted in accordance with the then prevailing coverages maintained in similar commercial developments in Gallatin County, Montana not more than once every [ten] years. Upon request, but not more than once [each] year, each Party agrees to furnish to the other Party evidence that: (i) such insurance is in full force and effect; (ii) the premiums have been paid in full; and (iii) the appropriate parties are designated as additional insureds. Such insurance will be written on an “occurrence” basis (any insurance carried by another Party or tenant will be noncontributing with such insurance) and will be written with an 5 4938-9258-6759.V2 insurer licensed to do business in the state in which the Parcels are located. The insurance company providing such insurance will be rated at least A- VII, A.M. Best’s rating. Such insurance may be a part of blanket liability coverage carried by a Party so long as such blanket policy does not reduce the limits or diminish the coverage required herein. 7. Indemnification by Parties. Each Party will defend, indemnify and hold the other Party harmless for, from and against any and all damages, liabilities, losses, actions, claims, costs and expenses (including reasonable attorneys’ fees and court costs and reasonable attorneys’ fees and court costs on appeal) (i) in connection with the loss of life, personal injury and/or damage to property arising from or out of any occurrence in or upon the indemnifying Owner’s Parcel, unless caused by the grossly negligent or willful act or omission of the indemnified Party or its Permittees; (ii) in connection with the failure to comply with the provisions of this Agreement; or (iii) in connection with any other act or omission of such Party or its Permittees. If a Party will, without fault, be made a party to any litigation commenced by or against another Party or its Permittees, or if a Party will, in its reasonable discretion, determine that it must intervene in such litigation to protect its interest hereunder, then the indemnifying Party will defend the indemnified Party using attorneys reasonably satisfactory to the indemnified Party and will pay all costs, expenses and reasonable attorneys’ fees and costs in connection with such litigation. The indemnified Party will have the right to engage its own attorneys in connection with any of the provisions of this Section, including, but not limited to, any defense of or intervention by the indemnified Party, notwithstanding any contrary provisions of the laws or court decisions of the State of Montana. 8. Taxes and Assessments. [Each Party will pay the real estate taxes and assessments on that portion of the Easement Area, Trash Removal Area, and Trail located on its Parcel.]4 9. Duration. This Agreement and the undertaking set forth herein will be perpetual covenants. 10. Not a Public Dedication. Nothing contained in this Agreement will be deemed to be a gift or dedication of any portion of the Parcels to or for the general public or for any public purposes whatsoever, it being the intention of the Parties that this Agreement be strictly limited to and for the purposes expressed in this Agreement. 11. Notices. All notices given pursuant to this Agreement will be in writing and will be given by email, personal delivery, by United States mail or United States express mail postage or delivery charge prepaid, return receipt requested, or by an established express delivery service (such as FedEx or United Parcel Service), sent to the address registered to receive tax notices. Notices given by attorneys on behalf of their client(s) in the manner provided in this Section are effective and recognized notice pursuant to this Agreement. The person and address to which notices are to be given may be changed at any time by a Party upon written notice to the other Party. 4 NTD: Discuss if an additional proration between the members is necessary. 6 4938-9258-6759.V2 12. Entire Agreement. This Agreement sets forth the entire understanding of the Parties as to matters set forth herein and cannot be altered or otherwise amended except pursuant to an instrument in writing signed by each of the Parties. 13. No Partnership. The Parties do not by this Agreement, in any way or for any purpose, become partners or joint venturers of each other in the conduct of their respective businesses or otherwise. 14. Further Action. Each Party will execute and deliver all documents, provide all information, take or forbear from all such action as may be necessary or appropriate to achieve the purposes of this Agreement. 15. Governing Law. This Agreement will be governed by and construed in accordance with and interpreted under the laws of the State of Montana. 16. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance will, to any extent, be invalid or unenforceable, then the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby, and each term, condition, and provision of this Agreement will be valid and enforced to the fullest extent permitted by law. 17. Binding Effect. This Agreement will be binding upon and inure to the benefit of the Parties of the Parcels and their respective successors and assigns, including successors in title. The rights and privileges and easements granted and conveyed hereunder will exist for the benefit of, and be a burden upon, the Parcels (as applicable) and will run with title to, and be appurtenant to, such Parcels. All the covenants, conditions, restrictions, easements, terms and provisions hereof are and will be deemed to be covenants running with the Parcels described herein. 18. No Waiver. Failure of a Party to insist upon strict performance of any provisions of this Agreement will not be construed as a waiver for future purposes with respect to any such provision or option. No provision of this Agreement will be waived unless such waiver is in writing and signed by the Party alleged to have waived its rights. 19. Costs and Expenses and Remedies Upon Breach. In the event of a breach in any of the restrictions contained herein, the breaching Party will pay all costs and expenses, including reasonable attorneys’ fees and experts’ fees, which may arise or accrue from enforcing this Agreement or in pursuing any remedy provided by the laws of the State of Montana, whether such remedies are pursued by filing suit or otherwise. Because it would be difficult to ascertain the exact money damages suffered by a non-breaching Party, such non-breaching Party is entitled to appropriate equitable remedies in the event of any such breach. 20. Interpretation. The paragraph headings in this Agreement are for convenience only and will not be considered or referred to in resolving questions of interpretation and construction. The use of the singular in this Agreement will include the plural, where the context is otherwise appropriate. 7 4938-9258-6759.V2 21. Counterparts. This Agreement may be executed in any number of counterpart originals, each of which will be deemed an original instrument for all purposes, but all of which will comprise one and the same instrument. [SIGNATURE PAGES FOLLOW] 8 4938-9258-6759.V2 IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the day and year first above written. PYRALIS SPRINKLER DESIGN, LLC, a Montana limited liability company By: _______________________________ Print Name: ________________________ Title: _____________________________ STATE OF ) :ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _____ day __________, 2025, by __________, the __________ of Pyralis Sprinkler Design, LLC, a Montana limited liability company. NOTARY 1 4938-9258-6759.V2 HEENAN & COOK PROPERTIES LLC]5, a Montana limited liability company By: _______________________________ Print Name: ________________________ Title: _____________________________ STATE OF ) :ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _____ day __________, 2025, by __________, the __________ of [Heenan & Cook Properties, LLC] , a Montana limited liability company. NOTARY 5 Note to Draft: This entity was involuntarily dissolved in 2023. 1 4938-9258-6759.V2 ALEAGHA REAL ESTATE, LLC, a Montana limited liability company By: _______________________________ Print Name: ________________________ Title: _____________________________ STATE OF ) :ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _____ day __________, 2025, by __________, the __________ of Aleagha Real Estate, LLC, a Montana limited liability company. NOTARY 2 4938-9258-6759.V2 EXHIBIT A TO RECIPROCAL PARKING EASEMENT AGREEMENT Legal Description of 1039 Parcel 1 4938-9258-6759.V2 EXHIBIT B TO RECIPROCAL PARKING EASEMENT AGREEMENT Legal Description of 1043 Parcel 2 4938-9258-6759.V2 EXHIBIT C TO RECIPROCAL PARKING EASEMENT AGREEMENT Site Plan