HomeMy WebLinkAbout016 - Graf Joint Use and Maintenance Easement AgreementJOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 1
When Recorded Return to:
DevCo Preservation, LLC
10900 NE 8th Street, #1200
Bellevue, WA 98004
Attn: David B. Ratliff
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT
Grantor: {Alder Ridge Entity}
Grantee: {Sage Peak Entity}
Legal Description
(abbreviated):
{To be inserted}
Additional on: Exhibits A and B
Assessor’s Tax Parcel Identification Numbers: {To be inserted}
THIS JOINT USE AND MAINTENANCE EASEMENT AGREEMENT (“Agreement”) is dated as of the date
set forth below, and is made by and among {Alder Ridge Entity}, a ____________ (“Alder
Ridge”), and {Sage Peak Entity}, a __________ (“Sage Peak”). Alder Ridge and Sage Peak are
collectively referred to as the “Owners” and each as an “Owner” hereunder.
RECITALS
A. Alder Ridge is the owner of that certain real property commonly referred to as
___________________ (“Alder Ridge’s Property”), which is legally described on Exhibit A
attached hereto and by reference made a part hereof.
B. Sage Peak is the owner of that certain real property commonly referred to as
___________________ (“Sage Peak’s Property”), which is legally described on Exhibit B
attached hereto and by reference made a part hereof.
C. The Owners intend to construct certain multi-family complexes on their respective
parcels. The Owners intend to work together to design site improvements for the intended
construction of multi-family complexes including, without limitation, driveways, sidewalks, non-
reserved parking areas, parks, stormwater facility(ies), solar energy facility(ies), landscaping and
other amenities or facilities designed for non-exclusive use on Alder Ridge’s Property and Sage
Peak’s Property (to the extent actually constructed and expressly excluding any multi-family
buildings and the Clubhouse, the “Common Areas”).
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 2
D. The Owners each desire to grant certain easements and undertake certain
maintenance obligations that will benefit and burden each of Alder Ridge’s Property and Sage
Peak’s Property for the joint use and maintenance of the Common Areas, as further described
below.
E. Alder Ridge intends to construct a community clubhouse on Alder Ridge’s Property
(to the extent constructed, the “Clubhouse”) for the exclusive use of and by Alder Ridge’s
Property.
AGREEMENTS
For valuable consideration, the Owners hereby agree as follows:
1. Grant of Common Areas Easement. The Owners each hereby declares and grants
to the other Owner for the benefit of Alder Ridge’s Property and Sage Peak’s Property a
nonexclusive, perpetual easement over, across, and through the Common Areas for reciprocal use
and enjoyment of the Common Areas in a manner consistent with the granting Owner’s intended
use of such Common Areas, which such use shall be subject to all reasonable rules and regulations
promulgated by the Owner of such portion of the Common Areas.
2. Required Maintenance of Common Areas. The Owners shall each directly pay
the Required Maintenance (defined below) costs for the Common Areas as required hereunder.
The Owners shall each be responsible for contracting and overseeing the Required Maintenance
for and on their respective property. Notwithstanding the foregoing, the Owners shall each pay a
pro rata share of all Required Maintenance for the Common Areas, which such pro rata share shall
be based the total apartment unit count on each Owner’s property. “Required Maintenance”
means any and all maintenance and repairs reasonably necessary to keep the Common Areas in
good repair, in a condition substantially similar to its condition upon original installation, and
keeping the Common Areas clean and free of debris. “Required Maintenance” shall include, but
shall not be limited to, (i) maintaining and replacing paved areas in a level, smooth, and evenly
covered condition, as originally installed or as otherwise agreed by the Owners, (ii) maintaining,
repairing, and replacing all Common Areas in a manner consistent with other similar communities
in the region or as otherwise agreed by the Owners, and (iii) removing of snow, de-icing,
resurfacing, sweeping of debris and refuse within the Common Areas, and those areas outside of
Alder Ridge’s Property and Sage Peak’s Property as required by local law, as necessary for the
reasonable use and enjoyment thereof. The Required Maintenance shall also: (a) be conducted in
a good and workmanlike, safe and efficient manner, and (b) be in compliance with all applicable
laws and regulations, including obtaining any and all necessary approvals from governmental
authorities. As of the first calendar month after the Common Areas are constructed, each Owner
may deliver the other Owner reasonably detailed invoices for work actually performed and
required to be performed under this Agreement, and the other Owner shall deliver payment of its
pro rata share of the Required Maintenance costs no later than the 7th day of the following calendar
month in which the invoice was sent to the other Owner. To the extent that each Owner delivers
the other Owner a reasonable detailed invoice in the same calendar month in accordance with the
preceding sentence, the invoices shall offset each other and the net amount resulting from such
offset shall be paid by the applicable Owner in accordance with this Section 2. Nothing herein
shall prevent the Owners from separately agreeing to designate one of the Owners with full
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 3
authority over maintenance of all Common Areas with the other Owner paying their pro rate share
of the Required Maintenance.
For the avoidance of doubt, Alder Ridge shall be responsible for the operation, inspection, and
maintenance as well as replacement of storm drainage facilities since such storm drainage facilities
are or will be located on the Alder Ridge Property. Alder Ridge shall be responsible for compliance
with the Stormwater Maintenance Plan attached as Exhibit C and any other stormwater
maintenance requirements promulgated by the City Bozeman.
Notwithstanding the foregoing, if the need for maintenance, repair, or replacement is caused by
the willful or negligent act of an Owner, or their guests, lessees or invitees, then such Owner shall
be solely responsible for all such costs of maintenance, repair and replacement.
3. Indemnifications. Sage Peak agrees to indemnify, and hold harmless Alder Ridge,
its officers, directors, employees, agents, and successors (collectively, the “AR Indemnitee”) from
and against any and all claims, demands, or causes of action and the resulting losses, costs,
expenses, reasonable attorney fees, liabilities, damages, orders, judgments, or decrees
(collectively, “Claims”) which the AR Indemnitee may suffer or incur due to any damage to
property, injury to or death of any person, or otherwise as a result of the entry upon, activities on,
or use of Alder Ridge Property in the exercise of the easement rights hereunder by Sage Peak.
Notwithstanding the foregoing, this Section 3 shall be valid and enforceable only to the extent of
the negligence of Sage Peak, its agents, contractors, subcontractors, or employees. Alder Ridge
agrees to indemnify, and hold harmless Sage Peak, its officers, directors, employees, agents, and
successors (collectively, the “SP Indemnitee”) from and against any and all Claims which the SP
Indemnitee may suffer or incur due to any damage to property, injury to or death of any person, or
otherwise as a result of the entry upon, activities on, or use of Sage Peak Property in the exercise
of easement rights hereunder by Alder Ridge. Notwithstanding the foregoing, this Section 3 shall
be valid and enforceable only to the extent of the negligence of Alder Ridge, its agents, contractors,
subcontractors, or employees.
4. Insurance. Each Owner shall at all times maintain or cause to be maintained
comprehensive general public liability insurance against claims for personal injury or death and
property damage occasioned by accident occurring upon, in, or on any portion of the Common
Areas. The limits of liability of such insurance shall be not less than $2,000,000 combined single
limit coverage for injury to person, loss of life, and damage to property arising out of any single
occurrence. At the written request of the other Owner, the amount of such liability insurance
coverage shall be periodically reviewed and if it is reasonably determined that such amount is
inadequate, based on then normally accepted industry standards, the minimum amount of such
liability insurance coverage shall be increased to conform to the current industry standards. Upon
request, each Owner shall provide the other Owner with a copy of a certificate of insurance
evidencing such insurance with each Owner naming each other Owner as a named insured.
5. Required Amendment to Agreement. No later than 120 days after the Common
Areas and multi-family complexes are constructed, the Owners shall record an amendment to this
Agreement that (i) contains the as-built apartment unit count for each Owner’s property, including
each Owner’s pro rata share of Requirement Maintenance, (ii) amends the definition of the
“Common Areas” to ensure certain exclusive structures or amenities are excluded from such
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 4
definition, and (iii) to the extent mutually agreed by the Owners, amends and restates Section 1 of
this Agreement to clarify the scope of each Owner’s right to use and enjoy certain portions of the
Common Areas.
6. General Provisions.
6.1 No breach, whether or not material, of the provisions of this Agreement
shall entitle either party to cancel, rescind, or otherwise terminate this Agreement, but such
limitations shall not affect, in any manner, any other rights or remedies which either party may
have hereunder, at law or in equity by reason of any breach of the provisions hereof, including,
without limitation, the right to collect damages or to compel specific performance. The remedies
provided for in this Agreement shall, to the maximum extent permitted by law, be cumulative and
in addition to any rights or remedies of the parties at law or in equity.
6.2 This Agreement and the terms contained herein shall be deemed covenants
running with the land and shall inure to the benefit of and shall be binding upon the grantees, heirs,
successors and assigns of the Owners and the future owners of Alder Ridge’s Property and Sage
Peak’s Property. If Alder Ridge’s Property and/or Sage Peak’s Property is ever split into multiple
parcels, the easement rights and obligations established hereby shall benefit and burden all such
parcels equally. For the avoidance of doubt, “Alder Ridge” and “Sage Peak” expressly include
such Owner’s grantees.
6.3 Amendments to or termination of this Agreement shall be made by an
instrument in writing and that is unanimously approved by the Owners, and shall be effective upon
recording.
6.4 Any provisions of this Agreement which shall prove to be invalid, void, or
illegal, shall in no way affect, impair, or invalidate any other provisions hereof and such other
provisions shall remain in full force and effect.
6.5 No waiver of any of the provisions of this Agreement shall be effective
unless it is in writing and signed by the party against whom it is asserted, and any such written
waiver shall only be applicable to the specific instance to which it relates and shall not be deemed
to be a continuing or future waiver.
6.6 This Agreement shall be governed in accordance with the laws of the State
of Montana.
6.7 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts together shall constitute one
agreement.
6.8 In the event any action is instituted with respect to the subject matter of this
Agreement, the party prevailing in such action, whether by final judgement or out-of-court
settlement, shall be entitled to recover from the other party thereto actual attorneys’ fees and costs
of such suit.
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 5
6.9 All notices, demand, requests or other communications given under this
Agreement shall be in writing and be given by personal delivery, certified mail, return receipt
requested, or nationally recognized overnight courier service to the address set forth below or as
may subsequently in writing be requested.
If to Alder Ridge: ______________________
______________________
______________________
______________________
If to Sage Peak: ______________________
______________________
______________________
______________________
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 6
EXECUTED as of _________________, 202__.
ALDER RIDGE:
{Alder Ridge Entity},
a _____________________________
By: _____________________
Name: ___________________
Title: ____________________
STATE OF
COUNTY OF } ss.
This record was acknowledged before me on _________________, 202__, by
_____________________, as _____________________ of {Alder Ridge Entity}, a
__________________.
[Stamp below]
Signature
NOTARY PUBLIC
My Commission Expires
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 7
EXECUTED as of _________________, 202__.
SAGE PEAK:
{Sage Peak Entity},
a _____________________
By: _____________________
Name: ___________________
Title: ____________________
STATE OF
COUNTY OF } ss.
This record was acknowledged before me on _________________, 202__, by
_____________________, as _____________________ of {Sage Peak Entity}, a
__________________.
[Stamp below]
Signature
NOTARY PUBLIC
My Commission Expires
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 8
EXHIBIT A
Alder Ridge’s Property
[TO BE INSERTED]
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 9
EXHIBIT B
Sage Peak’s Property
[TO BE INSERTED]
JOINT USE AND MAINTENANCE EASEMENT AGREEMENT page 10
EXHIBIT C
Stormwater Maintenance Plan
[TO BE INSERTED