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HomeMy WebLinkAbout12- Gallatin Mall Group Trail Corridor Access Easement Agreement 2434282 Page: 1 of 9 12/07/2012 09:25:27 AM Fee• $63.00 Charlotte Mills - Gallatin County, MT MISC IIIIIII IIIIII II IIII IIIIIII IIIIII Illl IIII IIIII IIIii Illllll III Illll IIII IIII City of Bozeman-City Clerk P.O. Box 1230 Bozeman, MT 59771-1230 TRAIL CORRIDOR ACCESS EASEMENT AGREEMENT THIS AGREEMENT(the"Agreement")is made and entered into this 25th day of July, 2012, by and between Gallatin Mall Group, L.L.C. a Montana limited liability company, with address at P.O. Box 80510, 2280 Grant Road, Suite A,Billings, Montana 59108-0510 ("Owner"),and City of Bozeman, a Municipal Corporation of the State of Montana,with offices at 121 North Rouse, Bozeman, Montana 59715 ("User"). RECITALS WHEREAS, Owner is the owner of certain real property in Gallatin County, Montana, more particularly described on Exhibit A, attached hereto and by this reference incorporated herein("the Property"); and WHEREAS,the Property lies adjacent to properties across which has been established a public trail easement that comprises part of a public trail system that is of significant interest and value to User and the general public; and WHEREAS, Owner desires to quit claim to User an easement across a portion of the Property for purposes of preserving open space and establishing a public, non-motorized trail that will connect previously established public trails on nearby lands and thereby provide for and preserve open space and recreational opportunities and assist in shaping the character, and direction of development of the City of Bozeman; and WHEREAS, User is a"public body,"authorized to acquire interests in real property for purposes of providing or preserving public parks, open space land values, and recreational opportunities; NOW, THEREFORE, it is agreed as follows: 1. Easement In consideration of the sum of one($1.00) and other good and valuable consideration, receipt of which is hereby acknowledged, Owner, Gallatin Mall Group, L.L.C.,hereby quit claims unto User, City of Bozeman, a nonexclusive trail easement("the Easement") on, over and 1 across the Property consisting of a corridor sixteen feet(16') in width lying along an alignment shown on the map attached hereto as Exhibit B, and by this reference incorporated herein, for the duration and purpose set forth herein below and consisting of the rights hereinafter enumerated. 2. Duration The Easement is granted in perpetuity and shall run with the land so as to be forever binding upon the parties hereto and their respective heirs, personal representatives, administrators, successors and assigns, unless terminated, amended or temporarily restricted as herein provided. 3. Amendment Any amendment of this Agreement must be in writing, signed by Owner and User, and recorded in the Public Records. 4. Termination The Easement can be terminated upon mutual agreement of Owner and User, or as provided for herein below. 5. Purpose The purpose of this Easement is to preserve and maintain the area within the Easement boundary ("Easement Corridor") as open space and for use, preservation and maintenance of a right-of-way for a public, non-motorized trail for the use and benefit of the User and the general public. 6. Rights Conveyed The rights and corresponding obligations conveyed by this Agreement are as follows: A. To maintain the Easement Corridor as open space free from man-made improvements except as otherwise provided herein; B. To establish within the Easement Corridor a trail for non-motorized use not to exceed six feet (6) in width; C. To lay out, mark, develop, construct, maintain or relocate a trail or foot path within the Easement Corridor; D. To develop, construct, maintain, and repair gates, turnstiles, steps, fences, bridges, board- walks, or other developments that are reasonable and necessary for management of the Easement Corridor. E. To make minor topographical changes to the Property within the Easement Corridor for the necessity and convenience of locating a trail; F. To establish and maintain appropriate signage within the Easement Corridor marking the trail and providing directions or other appropriate information in connection with the trail; 2 G. To enter upon the Easement Corridor for all reasonable and necessary construction, maintenance and repair of the trail, and Easement Corridor; H. To manage vegetation within the Easement Corridor through selective planting and/or removal of trees, shrubs, grasses or exotic or noxious plant species in order to maintain and enhance the scenic,natural. ecological and open space values of the Easement Corridor; and I. To maintain the Easement Corridor free from any condition that is offensive to the public health, safety or welfare or that constitutes a nuisance. 7. Limitation on Use of the Easement Except for motorized or battery propelled wheelchairs,public access on, over or across the Easement Corridor is limited to access by foot or other non-motorized means. Except for motor vehicles used by Owner or User for purposes of construction or maintenance of any trail that may be established within the Easement Corridor,use of motor vehicles within the Easement Corridor is prohibited. 8. Access Restrictions Owner and User have the right to require that public use is conducted in a manner that does not unreasonably disturb plant or wildlife habitat or Owner's quiet use and enjoyment of the Property. Owner and User have the right to mutually agree to limit,restrict, or prohibit public use on all or any part of the Easement either, a)temporarily to assure safety or for maintenance purposes,b)indefinitely, as necessary or appropriate,to achieve the purposes of this Agreement, c)to preserve important conservation values, and/or d)to protect Owner's quiet enjoyment of the Property. The Easement and the Easement Corridor shall be used only in compliance with any recorded covenants associated with Owner's property. User shall take all necessary and appropriate action necessary to insure that the uses permitted within the Easement and the Easement Corridor do not viokle: (a)the recorded Covenants and Conditions applicable to Owner's property; (b) any rules adopted by Owner for the operation of the Shopping Center; (c) that would violate any Exclusive Use or Protection Clause granted to any Tenant within the Shopping Center(Owner's property); and/or(d) that would have a detrimental impact upon the Shopping Center and/or any Tenant of the Shopping Center. 9. Fees No fees shall be charged by Owner to User or by User to the general public (as the case may be) for their use of the Easement Corridor. 10. Recreation Use Statute This Agreement is inter ded to be interpreted so as to convey to Owner and User all of the protections from liability provided by the §70-16-301 and §70-16-302 of the Montana Code Annotated, as amended through the applicable date of reference, or any other Applicable Law that provides immunity or limitation of liability for owners or possessors who make property available to the public for recreational purposes. 3 11. Attorney Fees In the event it is necessary for any of the parties hereto to bring any action to enforce the terms and covenants of this agreement, it is agreed that the prevailing party shall be entitled to reasonable Litigation Expenses (as hereinabove defined), including the cost of any in-house counsel (should either party have such counsel) as determined by the Court. 12. Owner's Representations. Notwithstanding that the Easement provided herein is without warranty, Owner represents that it is the current owner in fee title to the Property, and that it has full legal authority to convey the rights provided for in this Easement to User free of encumbrances not previously agreed to by User. 13. Retained Rights. Except for the rights expressly conveyed to User hereunder, Owner reserves to itself, its' personal representatives, heirs, successors and assigns, all other rights arising out of ownership of the Property, including,without limitation,the right to engage in, or permit or invite others to engage in, all uses of the Property not expressly prohibited herein and that are consistent with the terms of this Agreement, including, again without limitation,the following enumerated rights: A. A right-of-way on, over and across the Easement for purposes of construction of a parking area on portions of the Property adjoining the Easement and placement of underground utilities for the benefit of the Property,the location of which may be designated by Owner at a future date; and B. To relocate(but not terminate) all or portions of the Easement as described herein, provided that Owner shall first give User reasonable, advance notice of Owner's intention to relocate the Easement and User consents to such relocation. Such notice shall include plans and specifications of such reasonable detail that User will be able to make an informed decision regarding its consent to such relocation, which consent shall not be unreasonably withheld,conditioned or delayed. User shall enjoy all rights conveyed in this Agreement with respect to the Easement as relocated. 16. Maintenance Construction,maintenance,repair and replacement of the trail improvements shall be the sole and exclusive duty and responsibility of User. User is responsible for maintaining the Easement Corridor free from any condition that is offensive to the public health, safety or welfare or that constitutes a nuisance.User shall construct,repair, and maintain the Easement Corridor and the trail improvements so that it is safe and consistent with a First Class Commercial Development. 17. Breach and Restoration If Owner determines that User is in violation of the terms of this agreement, Owner may give written notice to User of such violation. In said notice of violation, Owner may demand corrective action sufficient to cure the violation. If User: a) Fails to cure the violation within thirty(30)days after receipt of notice thereof from Owner,or b)under circumstances where the violation cannot reasonably be cured within a thirty(30) day period, fails to begin curing such 4 violation within thirty(30) days after receipt of notice thereof from User(or, within 30 days of User's receipt of notice from Owner, fails to agree with Owner in writing on a date by which efforts to cure such violation will reasonably begin),or c) fails to continue diligently to cure such violation until finally cured,then Owner may bring an action, without bond or surety required, to enforce the terms of this agreement,to temporarily close the trail to public access,to require the restoration of the Property to the condition that existed prior to any such injury, and to recover any damages to which it may be entitled for violation of the terms of this agreement. 18. Mediation. Owner and User agree that nonbinding mediation offers an alternative to the expense and time required to resolve disputes by litigation. Mediation is therefore the parties' preferred dispute resolution procedure when circumstances do not require Owner or User to seek immediate injunctive relief from the courts. In the event of any dispute between Owner and User over the meaning,requirements,interpretation, or implementation of this Agreement, Owner or User may refer the dispute to mediation by written request served upon the other party. The non- requesting party shall have ten(10)days after receipt of a mediation request to consent thereto or to refuse to mediate the dispute. The mediation process shall proceed as follows: A. Within ten(10) days after Owner and User agree to mediation of a dispute,the parties shall mutually select a mediator. Mediation hearings shall remain informal, with each party being permitted to present such facts and evidence as it may reasonably believe supports that party's position. Costs and expenses of mediation shall be divided equally between Owner and User. B. Notwithstanding any provision to the contrary,the nonbinding mediation procedure set forth herein shall in no way be construed to deprive Owner and User from any judicial remedies provided at law, or by agreement herein, and is intended solely as an informal dispute resolution mechanism. Neither Owner nor User shall have the right to compel performance of the mediator's recommended solutions, unless such solutions are reduced to a binding written Agreement between Owner and User at the conclusion of the mediation process. The parties hereto intend that each conflict and dispute submitted to mediation shall be unique, with facts, circumstances, and recommended resolutions to be determined on a case-by- case basis,without reference to prior conflicts, disputes, or the resolutions thereto. 19. Acceptance. By its signature set forth herein below, User hereby accepts the foregoing grant of this Trail Access Easement subject to the terms and conditions herein contained. 20. Binding Effect. This Agreement extends to and is binding upon the parties and their respective heirs, personal representatives, successors and assigns. 21. Notices. (a) Any notice to be given hereunder must be in writing and may be either delivered 5 personally or sent by prepaid, registered or certified mail or overnight delivery service. If mailed, any such notice will be effective on the earlier of the date three (3) business days following the date upon which it was postmarked or the date the party receiving such notice certifies receipt. If sent by a reputable overnight delivery service, notice will be deemed given and received upon the date actually delivered as indicated by the records of such overnight delivery service. The addresses of the parties for the purpose of notice will be as provided for in the opening paragraph of this Agreement. Notwithstanding the foregoing, during any interruption in the regular postal service, any notice will be effective only when actually received. (b) The addresses to which notices are to be given may be changed at any time by any party upon fifteen(15)days written notice to the other party. (c) The term "notice" includes without limitation requests, demands, designations, statements or other writings required or permitted by this Lease to be given by one party to the other and all originating notices in support of any legal proceeding(including an arbitration or mediation). DATED this 251h day of July, 2012. OWNER: GALLATIN MALL GROUP, L.L.C. By: Ai- ilm* j— o P. Wnow s: Managing Member State of: Washington County of: Spokane This instrument was acknowledged before me on this 251h day of July, 2012 by JOHN P. MORROW in his capacity as Managing Member of GALLATIN MALL GROUP, LLC. 1 Q (Signature) q �— ARY��N� (A —>n<--- al) PUBLIC o Title/Rank: Notary Public for the State of Washington, 2 16 15 County of Spokane �F VJASNf Residing at: Spokane My commission expires: 2- 6 DATED this day of 5 , 2012. USER: CITY OF BOZEMAN By: CQA;AA.�;;Z� Name: Its: State of: Montana County of. Gallatin 4_,k This instrument was ac nowledged before me on this (S day of l4_ + , 2012 by ( v-zS KjA t6k; in his or her capacity as G la,, M"anL,y of CITY OF BOZEMAN AIMEE BRUNCKHORST , �� ,, NOTARY PUBLIC for the * SEAL;* State of Montana .� My Commission Expires ( ignature) ' 'OF December 04, 2012 (s (Name) Title/Rank: Residing at: _ yady My commission expires: EXHIBIT A Tract 1 of Certificate of Survey No. 647A, located in the S1/2SW1A of Section 11, Township 2 South, Range 5 East,P.M.M., in the City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County,Montana. Subject to all third party rights of record in the Property existing at the time of conveyance of the Easement and not subordinated to the Easement. 8 i I _ I j Bozeman �� Retention Pond + Pond s r f � O • A ' Gallatin Valley Mall + _ VOW----- ,. .d Legend Trail Easement N Existing Trails Roads photoAerial from 2007 1 11 GALLATIN VA I , I , F' Y Feet LAND TRUST .. 10.28.2011