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Home My WebLink About05- Pizza Hut; 2300 W. Main St - Temp Easements 1 111111111111111111111111111111111111111111111111111111I ~~~~~ri~~.. J:~1~TE~~;:5:#~:"~ u . THIS TEMPORA~Y EASEMENT (the "Easement") is entered into as of the gf' day of ~ ' 2005, (the "Easement Date") by and between NET LEASE FUNDING 2005, LP, a Delaw re limited partnershIp ("Grantor"), AMERICAN PIZZA PARTNERS, LP, a Delaware limited partnership ("Tenant") and the CITY OF BOZEMAN, a municipal corporation of the State of Montana, with offices at 411 East Main, Bozeman, Montana 59715 ("Grantee"). WHEREAS, Grantor is the owner of that certain tract or parcel of land situated in the City of Bozeman, County of Gallatin, State of Montana known as 2300 West Main Street ("Premises"); and WHEREAS, Grantee desires to construct certain improvements to West Babcock Street; and WHEREAS, Grantee desires to obtain from Grantor and Grantor desires to grant to Grantee a non-exclusive, temporary easement to enter upon a portion of the Premises to allow for the construction of improvements to West Babcock Street along the north property line of the Premises. NOW THEREFORE, in consideration of the foregoing and the agreements set forth herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereby covenant and agree for themselves and their successors and assigns as follows: 1. Grant of Easement. Grantor does hereby grant to Grantee a non-exclusive, temporary easement to allow Grantee and its authorized agents and representatives to enter upon a portion of the Premises in order to construct the West Babcock Street improvements, including construction of sidewalk adjacent to West Babcock Street, and make certain repairs or improvements to the property during construction of said improvements to West Babcock Street. In addition, Grantee will remove two (2) existing pine trees and one (1) bush located along the northwest corner of the Premises to accommodate the new sidewalk and shall restore the asphalt surface to match the new improvements. Said improvements are illustrated on Exhibit A attached hereto and made a part hereof ("Easement Area"). 2. Interference and Restoration, In exercising the rights granted herein, Grantee, its authorized agents and representatives will not unreasonably interfere with nor cause an unreasonable disruption of Tenant's business located on the Premises. Grantee shall take all reasonable steps necessary to ensure access to the Grantor's property. The parties mutually agree and acknowledge there is a separate access to the property off Main Street which is not anticipated to be a part of this project. 3. Indemnity, Grantee covenants that it shall indemnify and hold Grantor and Tenant harmless from and against any and all claims, demands, losses, damages and causes of action arising from or relating to the acts or omissions of or attributable to the Grantee, its employees, contractors and agents, or any other occurrence, accident, injury, damage or dispute relating to the use of the Premises by any of the foregoing or brought or made for or on account of any injuries or damages received or sustained by any person or persons or property, except for claims, demands, losses, damages and causes of action caused by the gross negligence of the Grantor or Tenant; and 4. Binding Nature of Grant; Rights of Grantor, Tenant and Grantee, The foregoing rights and obligations shall be personal to the Grantee and shall not be covenants running with the land. All rights hereunder may be enforced at law for damages or in equity by injunctive relief. 5. Enforcement, If any party hereto fails to perform its obligations under this Easement, or if a dispute arises concerning the meaning or interpretation of any provision of this Easement and any Pizza Hut, Bozeman, MT/#332 Revised 5-19-05 1 1I111111111111111 m 111111111111111111111111111111111 g~~6~~~p Shall.y Vanoa-Gallattn Co MT MISC 49.00 action or steps are taken in furtherance thereofincluding, but not limited to, the commencement of legal proceedings, lawsuits, arbitration or other proceedings arising out of, relating to or based in any way on this Easement, including without limitation, tort actions and actions for injunctive and declaratory relief, the defaulting party or the non-prevailing party in the dispute, as the case may be, shall pay any and all actual costs and expenses incurred by the prevailing party in enforcing or establishing its rights hereunder, including, without limitation, all court costs, all fees and costs incurred at all pretrial, trial, appeal and alternative dispute resolution levels, arising from, out of, or occasioned by the acts or omissions of Grantee, its agents, employees, licensees or invitees in connection with the exercise of the easement rights granted hereunder. 6. Notices, Any notice or document required or permitted to be delivered hereunder shall be deemed to be delivered: A. Three (3) days after the same shall have been deposited in the United States mail, postage prepaid, registered or certified, return receipt requested; or B. The next business day if same shall be sent by a national overnight courier with a tracking system; and addressed to the parties hereto at the respective addresses set out opposite their names below or at such other address as they have theretofore specified by written notice delivered in accordance herewith: If to Grantor: Net Lease Funding 2005, LP CNL Center at City Commons 450 South Orange Avenue Orlando, Florida 32801 Attn: Real Estate Management If to Tenant: American Pizza Partners, LP 3020 Cypress Road, Suite 100 Wichita, KS 67226 Attn: Kevin Dreiling If to Grantee: City of Bozeman 411 East Main Bozeman, Montana 59718 Attn: Director of Public Service 7. Authority. Each person signing this Easement on behalf of a party warrants that he or she is duly authorized by all necessary and appropriate corporate action to execute this Easement. 8. Applicable Law, This Easement shall be governed by and construed in accordance with the laws of the State where the Premises are located. [SIGNATURES ON FOLLOWING PAGES] Pizza Hut, Bozeman, MT/#332 Revised 5-19-05 2 1111111111111111111111111111111111111111111111111111111 ~~t~~r~~:p Sh.l1ey Vanoe-Gal1attn Co MT MIse 49.00 IN WITNESS WHEREOF, the parties have caused this agreement to be executed as of the day and year first above written. GRANTOR: NET LEASE FUNDING 2005, LP, a Delaware limited partnership ~~ Witness ~~~ Ko-rofv By: NET LEASE FUNDING 2005, LLC, a Delaware limited liability company, its General P er STATE OF FLORIDA ) ):ss County of ORANGE ) On this ~....r day of 1tlCA-.Y- ,2005, before me the undersigned, a Notary Public for the State of Florida, personally appeare'd John L. Farren, known to me to be the Manager of Net Lease Funding 2005, LLC, General Partner of Net Lease Funding 2005, LP and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of the limited liability company and limited partnership. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) ~~~.~~ WlLDA OTERO f.:''':~ MY COMMISSION # DD 341752 ~;"'h" ",' EXPIRES: November 14. 2008 'lI'IIr.. . " Bondtd Thru NoIIry f'l.tXlc Undenvriters dJc1L ~ Notary Public for the State of Florida (Printed Name) Residing at 450 S. Orange Avenue, Orlando. FL 32801 My Commission expires / /20_ Pizza Hut, Bozeman, MT/#332 Revised 5-19-05 3 By / 16wJ .. VIe< %<)),.1- IIIIIIII~IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ~:t~~r:~~p Snelley Vanoa-Qallatln Co MT MIse 49.00 TENANT: AMERICAN PIZZA PARTNERS, LP, a Delaware limited partnership a~iit WItness: ()mfLNitv ~~ Witness By: RMC AMERICAN MANAGEMENT, INC., a Kansas corporation as Managing Partner ST A TE OF _K01J'7:!2_ ) ):ss ) COllntyof ,~ On this A<[ft day of '1n~ ,2005 bet",e me the nndecsigned, a Notary Public for the State of 1<0;1.:;:' , personally a peared t.erry fr8ttAi. d . known to me to be the V,ce ('res/' "h~ of RMC American Management, Inc., General Partner of American Pizza Partners, LP and the person whose name is subscribed to the within instrument and acknowledged to me that he executed the within instrument for and on behalf of the corporation and limited partnership. IN WITNESS WHEREOF. I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) __... DEBRA J, WARD _ NaIIfy Public. Statlt of KIn.. MAt. Ex 11"111 ()... ~ r 1 ~0 t1JJAa Q- ~IAA __ Notary Public?;~ the State of ~hSl.s ]>ebra 3.., W4 vi (Printed Name) Residing at W " cJ" . fa. / <.) My Commission expires j)e'L- / ,~ 3 /20 og PiZl.a Hut, Bozeman, MT/#332 4 Revised 5-19-05 ACCEPTED: ~Ib~ CITY OF BOZEMAN IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII~IIIII ~.}~~~~p Shelley V.no.~Gallaltn Co MT MIse 49.00 By its City Manager STA1:EDFMONTANA 'Co ) )ss. County of Gallatin ) On this to~ day of ~ LIi1.fL- , 2005, before me, a Notary Public for the State of Montana, personal1y appeared CHRIS KUKULSKl and ROBIN L. SULLlV AN, known to me to be the City Manager and Clerk of the Commission, respectively, of the City of Bozeman and the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same for and on behalf of the City of Bozeman. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. (SEAL) lju,~~ on/0Vli~A Notary Public for the ~ofMo~a .#- € LPUtfL C}vQA/U'v7n (Printed Name) 0 ' ' r'F- Residing at ~ My Commission Expires .3 / 2. S /2~ .' ,.. r:!lI).. ',' .... .'.)c. "'n"ll " " \,..\:...,' ....~'r I"v:"\ /v'''' .,'. ,,'" '" "....'~Qi A8/." \,~ \ f ,.. -I( \ i :~ \SEALl j .., \ : ...,:- ~'. ,JI~ ... ,.... ..... -. .' ~ ,Ioi ,"-,.,. ..,..t....... \ ~~ '., .. ,- r') ',',,"1. :'" Pizza Hut, Bozeman, MT/#332 Revised 5-19-05 5 1111111 11111 111111111111111 1111111 11111 1111111111111111 ~~t~~r~~~p Shelley Vano.-Gal1altn Co MT MISC 49.00 ..-...... -.. -.." - EXHIBIT A (EASEMENT ILLUSTRATION) Pizza Hut, Bozeman, MT/#332 6 Revised 5-19-05 IIIIIIIIIIIIIIIIIIIIIIIIIIIIII~IIIIIIIIIIIIIIIIIIIII g~~r:~~p Shel1ay Vanoe-Gallalln Co MT MISC 49.00 GRAPHIC SCALE j 4~ 20 40 , I ( IN FEET ) 1 inch = 40 ft. EXHIBIT A NET LEASE FUNDING 2005, 2221 W. BABCOCK __d CIIeryI 1./oc00na1d COS '8M1. ~ ~.......... ~I' o!lIIlIr!\IIII' ~~~9 r . ~_10______:_..~";_~;.~~~~';".~~" . TEL ... TEL- - ll: -- 'rEi '~,., ".. .",- -----...... .."~,~,,. II '~~...le-..Ir:_ '-=TOEO= NEW CURBWAlK~ MATCH EXISTING PHALT ASPHALT CUT LINEAR .3' BEHIND NEW SIDE ALK. MATCH EXISTING ASPHALT. BRIDGER VILLAGE LODGE 2307 W. MAIN STREIT REMOVE 1 LILAC BUSH AND 2 PINE TREES TO ACCOMODATE NEW SIDEWALK APf~ 155 L1.C OOC I089J80 TRACT 18 cas lJIU w z ::; ~ w ... o "" ... PIZZA HUT 2300 W. MAIN STREIT w z ::; ~ w ... o "" ... CNl. INCOMe FlJN() x. LID 121 fII 1776 '9 fII 11$6 NOTE: NEW 6' CONCRETE SIDEWALK & 35' COMMERCIAL APPROACH WILL BE INSTALLED TO MATCH THE EXISTING ASPHALT APPRDACH. LEGEND: f-vy..,j..-v ~"~.~''-) . [~ EXISTING VEGETATION I TREES NEW VEGETATION I TREES SIDEWALKS OVERHEAD POWER (OHP) TELEPHONE LINE (TEL) GAS MAIN (GAS) SANITARY SEWER MAIN (SS) WATER MAIN (WTR) SANITARY SEWER MANHOLE WATER VALVE -....- ~m.~11IL.- _ ",,~N~'"~ ,(~ ,w,"".~,~,,~_ (8. wv rx:1 mLMORRISON ..~~c. - - .- - -,.. "'... 1I1~ 10'1 ,....... ~ lit llm1 . ~ (. -...mtl F.lIII (a) M7~1I11& CLIENT' FIELD WORK' DRAWN BY: SHM CHECKED BY:M.....- VICINITY MAP PATE: 12/20/04 SCALE: 1"-40' PROJ 0417/039 TRACT I CO$ tJil4 --~,~- ~r{y1_ ''" J~ tJl"l3 STATE Of' IIONTANA r{<:'<"" ta"') ""(~ jio.C:"'l", {"'J",\ '.It;" TOE OF SLOPE . STORM WATER SEWER !f!;f4lW,,~!lNllIiilii\19li::'i'i. WATER SERVICE SEWER SERVICE ===--,"=::,"-'-.""", CULVERT I!:l POWER PEDESTAL [II TELEPHONE PEDESTAL C"Q.;, OVERHEAD POWER POLE FIRE HYDRANT ~ MAILBOX Net Lease Funding 2005, LP PLOTTED PATE: May/23/2005 - 10:24:25 am DRAWING NAME: ~~~~-1l<lW\ SHEET --1...- OF -1.- I'IDmIl BY<