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Reciprocal Easement & Maintenance AgreementK RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT iI THIS AGREEMENT, made and entered into this Z, day of December, 1997, by and between CITY OF KALISPELL, a municipal corporation ("City"), and RSI, L.L.C. , a Washington limited liability company being qualified in Montana, the sole initial member of which is ROSAUERS SUPERMARKETS, INC., a Washington corporation ("RSI"). A. City is the owner of Lot 1, Daley Field Subdivision, located in the NW 1/4 of Section 20, T28N, R21 W, P.M.M. , Kalispell, Flathead County, Montana ("City Property"). City also owns Lot 3, Daley Field Subdivision ("Lot 3"). B. RSI is the owner of Lot 2, Daley Field Subdivision, located in the NW 1/4 of Section 20, T28N, R21W, P.M.M., Kalispell, Flathead County, Montana ("RSI Property"). C. City and RSI wish to grant to one another an easement upon Lots 1 and 2, Daley Field Subdivision, to construct and maintain a private road serving both of their properties. To that end, they are entering into this Reciprocal Easement and Maintenance Agreement. I� 1.1 City hereby grants to RSI, and RSI hereby grants to City, an easement as more fully described herein. 1.2 With respect to the grant by the City: 1.2.1 The Benefitted Property shall be the RSI Property. 1.2.2 The Burdened Property shall be a thirty (30) foot strip of land lying immediately north of and contiguous to the southern boundary of Lot 1, Daley Field Subdivision. EASEMENT AND AGREEMENT - 1 1.3 With respect to the grant by RSI: 1.3.1 The Benefitted Property shall be Lot 1, Daley Field Subdivision; 1.3.2 The Burdened Property shall be a thirty (30) foot strip of land lying immediately south of and contiguous to the northern boundary of the RSI Property. 1.4 In consideration of the reciprocal covenants described herein, and the other benefits flowing from this Agreement, each party hereby grants to the other, and such other parties' heirs, personal representatives, successors, and assigns, a nonexclusive easement over, under, and across the Burdened Property in order to construct and maintain a private road for ingress and egress of such other party, its lessee(s), and its and its lessee's officers, directors, employees, agents, tenants, contractors, and invitees, to the Benefitted Property. This Easement shall be a perpetual easement and shall run with the land. 1.5 This Easement and the right to use the Burdened Property shall be nonexclusive. Each Grantor hereby retains, and shall have the right to the use of the Burdened Property, and the right to grant to other parties and property owners the right to use the Burdened Property, for ingress and egress, service, maintenance, and for other uses, provided such other uses will not unreasonably interfere with the use of the Burdened Property by each Grantee as described herein. Each Grantor reserves, and shall have the right to install, connect, and maintain, from time to time, in such Grantor's Burdened Property, utility lines and pipes, telephone lines and conduits, and light poles, and to use such Grantor's Burdened Property for other purposes, provided such uses for other purposes shall not unreasonably interfere with each Grantee's use of the Burdened Property as described in this Agreement. In 2.1 On or after the date on which City sells Lot 3, Daley Field Subdivision, and after a traffic signal has been installed at the intersection of Kelly Road and U. S. #93, RSI, in its sole discretion, shall have the right to grant to the purchaser(s) of Lot 3 the right to use the private road described in Section 1.4, above, for ingress to and egress from Lot 3, in exchange for the right of the owner(s) and/or lessee(s) of Lots 1 and 2 to use a private road on Lot 3 for ingress and egress from Lots 1 and 2. EASEMENT AND AGREEMENT - 2 M1 • 3.1 The owners of the City Property and RSI Property, or their representatives, shall meet and collaboratively design a private road within the easement area. Recognizing that the development of either the City Property or the RSI Property might occur before the development of the other property, the owner of the first property to seek a building permit (the "Initiating Party") shall construct the private road, the center line of which shall be on the boundary line between Lots 1 and 2, Daley Field Subdivision, the owner of the other property thereafter reimbursing such party as set forth in this Agreement. For purposes of this Agreement, the private road shall be deemed to stop at each party's curb (said curb, and curb cuts, to be included within the costs of the private road to be shared herein); neither party shall be obligated to pay for the construction or maintenance of the sidewalks or other structures appurtenant to the other party's side of the private road. 3.2 The Initiating Party shall, prior to the commencement of construction, provide an estimate of the cost of construction of the private road to the other party. Upon completion of construction of the private road, the Initiating Party shall provide to the other party an accounting of all direct costs of constructing such private road, including but not limited to costs of design, engineering, permitting, and construction, to which shall be attached documentary evidence of such costs. The other party shall pay one-half (1/2) of such documented costs within fifteen (15) days of receipt of such accounting. )a IkA 01 •. 1 HIM 4.1 The owners of Lots 1 and 2, Daley Field Subdivision, shall each pay one-half (1/2) of all expenses incurred to maintain and repair the private road; provided that, subject to paragraph 4.4, neither shall be required to contribute to the maintenance and repair of such road unless and until such party, or its lessee(s), begin to conduct retail activities on and from such party's property. EASEMENT AND AGREEMENT - 3 4.2 The repairs and maintenance to be undertaken and performed under this Agreement, and the costs of which shall be shared under Section 4.1, shall include all ordinary and necessary expenses related to the repair or maintenance of the private road, whether currently deductible or necessarily capitalized, including, but not limited to, resurfacing of paved surface, filling of chuckholes, plowing, sanding, deicing, striping, cleaning, and signing. 4.3 On or after the date on which RSI, or its lessee, opens a grocery store on Lot 2, Daley Field Subdivision, the owner of Lot 2, Daley Field Subdivision, or its designee, in its sole but good faith discretion, shall have the right to determine and manage the maintenance and repair of the private road, and to thereafter bill the owner(s) of Lot 1 for such repair and maintenance pursuant to the provisions of paragraph 4.1. The owner(s) of Lot 1 shall pay such bill within fifteen (15) days of receipt. Prior to undertaking any maintenance and repair, the owner of Lot 2, or its designee, shall seek to discuss such maintenance and repair with the owner of Lot 1, but its failure to thus discuss such maintenance and repair shall not absolve the owner of Lot 1 from its obligation under paragraph 4.1, nor, if the owners of Lots 1 and 2 discuss such repair and maintenance, shall their inability to agree absolve the owner of Lot 1 from its obligation under paragraph 4.1 4.4 Notwithstanding Section 4.1 to the contrary, if the need for such repair or maintenance is occasioned by the activities by or on behalf of the owner(s) of either Lot 1 or Lot 2 (for example, if construction activities on or with respect to a party's property create a need for repair), the owner of such Lot shall bear the cost of such repair or maintenance. ky 5.1 Subject to paragraphs 5.2 and 5.3, any liability of the parties for personal injury to any worker employed to make repairs under this Agreement, or to third parties, as well as any liability of the parties for damage to the property of any such worker, or of any third person, as a result of or arising out of repairs and maintenance under this Agreement shall be borne, as between the parties, in the same percentage as they bear the costs and expenses of such construction, repairs, and maintenance. 5.2 RSI shall indemnify and hold harmless the City and their respective officers, employees, invitees, and agents for any loss, damages and expenses (including EASEMENT AND AGREEMENT - 4 attorney's fees) in connection with any claim or proceeding arising from damages or injuries received or sustained by any person or property by reason of any actions or omissions of RSI or its contractors, agents, officers or employees under this Agreement, other than claims or proceedings arising from any negligent or unlawful acts or omissions of the City or their contractors, agents, officers, invitees or employees. Promptly after receipt by the City of notice of the commencement of any action in respect of which indemnity may be sought against RSI under this Section 5.2, the City will notify RSI in writing of the commencement thereof, and, subject to the provisions hereinafter stated, RSI shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to the City, and the payment of expenses) insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against RSI. The City shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of RSI unless the employment of such counsel has been specifically authorized by RSI. The omission to notify RSI as herein provided will not relieve it from any liability which it may have to any indemnified party pursuant hereto, otherwise than under this section. 5.3 City shall indemnify and hold harmless RSI and their respective officers, employees and agents for any loss, damages, and expenses (including attorney's fees) in connection with any claim or proceeding arising from damages or injuries received or sustained by any person or property by reason of any actions or omissions of City or its contractors, agents, officers, invitees, or employees under this Agreement, other than claims or proceedings arising from any negligent or unlawful acts or omissions of RSI, its member, or their contractors, agents, officers, invitees, or employees. Promptly after receipt by RSI of notice of the commencement of any action in respect of which indemnity may be sought against the City under this Section 5.3, RSI will notify the City in writing of the commencement thereof, and subject to the provisions hereinafter stated, the City shall assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to RSI, and the payment of expenses) insofar as such action shall relate to any alleged liability -in respect of which indemnity may be sought against the City. RSI shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the City, unless the employment of such counsel has been specifically authorized by the City. The omission to notify the City as herein provided will not relieve it from any liability which it may have to any indemnified party pursuant hereto, otherwise than under this section. EASEMENT AND AGREEMENT - 5 5.4 Each party shall maintain insurance which covers liabilities arising out of access to or the use of the private road. Each shall seek in good faith to cause the other to be named as an additional insured on such party's insurance. Each party waives any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of, or damage to, such waiving party or its property or persons on the property of others using the private road, as to any such loss or damage which is insured against under any insurance policy in force at the time of such loss or damage. M ►.%,Uyl1 ! 1 1 6.1 If after the City no longer has an interest in Lot 1, Daley Field Subdivision, a dispute arises between the parties concerning the provisions of this Agreement, and as a condition precedent to suit or action thereon, the dispute shall be submitted to arbitration in the following manner: The party seeking arbitration shall submit to the other party a statement of the issue(s) to be arbitrated and shall designate such party's nominated arbitrator. The other party shall respond with any additional or counter statement of the issue, or issues, to be arbitrated and shall designate the responding party's arbitrator, all within fourteen (14) days after receipt of the initial notice. The two arbitrators thus nominated shall proceed promptly to select a third arbitrator. The arbitrators shall promptly, as the circumstances allow and within a time established by the majority of the arbitrators, conduct a hearing on the issue or issues submitted to them, and shall put their decision in writing, which decision shall be binding upon the parties. A decision by a majority of the arbitrators shall be the decision of the arbitration panel. The arbitrators shall have authority to award costs and reasonable attorney fees to either party in accordance with the merits and good faith of the positions asserted by the parties. In lieu of appointing three arbitrators and in accordance with the foregoing, the parties may, by written agreement, designate a single arbitrator. Except as provided herein the proceedings under arbitration shall be in accordance with the rules of the American Arbitration Association and the statutes of the State of Montana pertaining to binding arbitration. 6.2 Any notice or other communication transmitted by any party to any other party may be either hand delivered or sent by certified mail, return receipt EASEMENT AND AGREEMENT - 6 r requested, to the mailing addresses of the recipient party, or such other place as any party may hereafter designate to the other parties in writing. All such notices and communications shall be deemed sufficiently given and served for all purposes if hand delivered or if so deposited in the United States mail. 6.3 In the event legal action becomes necessary to enforce or interpret the terms of this Agreement, the prevailing party in such action shall be entitled to recover reasonable attorney fees and costs incurred in such action, as determined by the court. In the event of any appeals from such actions, the prevailing party shall be entitled to recover its reasonable attorney fees and costs incurred in such appeals, as determined by the court(s). The terms "costs" shall include, in addition to statutory costs and disbursements, all costs associated with discovery depositions, expert witness fees, and out-of-pocket costs incurred by the prevailing party in the prosecution or defense of the action. For the purpose of this paragraph, the term "action" shall be deemed to include any proceeding commenced in any court of general or limited jurisdiction, including any proceeding commenced in the bankruptcy courts of the United States. 6.4 This Agreement is made in accordance with and shall be interpreted and governed by the laws of the State of Montana. If any action or other proceeding shall be brought on or in connection with this Agreement, the venue of such action shall be in Flathead County, Montana. 6.5 All remedies provided for in this Agreement are distinct and cumulative to any other right or remedy afforded by law or equity and, to the extent permitted by law, may be exercised concurrently, independently, or successively. An action may be maintained to enforce such remedies in the alternative. 6.6 The parties agree to execute all documents necessary to implement the provisions of this Agreement. 6.7 The use of the singular term herein shall include the plural, the masculine shall include the feminine and neuter, and vice versa, as the context requires. 6.8 No waiver, modification or amendment of any term or condition of this Agreement shall be effective unless in writing, executed by all of the parties. No waiver or indulgence by any party of any deviation by any other party from full performance of this Agreement shall be a waiver of the right to subsequent or other full, strict or timely performance. This Agreement may be supplemented only by written documents executed in accordance with the express terms hereof, and it will not be qualified, modified or supplemented by EASEMENT AND AGREEMENT - 7 course of dealing, usage of trade or course of performance. Neither the failure nor the delay on the part of any party to exercise any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. 6.9 There are no verbal agreements which qualify, modify or supplement this Agreement. 6.10 If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal or otherwise unenforceable provision had never comprised a part hereof. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part of this Agreement a legal, valid and enforceable provision as similar in terms and intent to such illegal, invalid or unenforceable provision as may be legally possible. 6.11 All rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of their heirs, personal representatives, successors and assigns. 6.12 This Agreement and the easement described herein shall run with the land and shall continue so long as the private road described in paragraph 1.4 remains a private road. DATED this -14 day of , 1997. CITY OF KALISPELL RSI, L.L.C. a municipal corporation a Washington limited liability company 1 By x- Title EASEMENT AND AGREEMENT - 8 By ROSAUERS SUPERMARKETS, INC. Member President STATE OF MONTANA ) 19973GO 16M :ss. County of Flathead ) On this jtt day of A%c 'nbe/— , 1997, before me personally appeared l_ to me known to be the of the CITY OF KALISPELL, the municipal corporation that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned and on oath stated that he is authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal thdjd#y and year first above written. NOTARY/PUBLIC in and for the State of ' Montana, residing at ' Print Name: X),,/ � ••••s4••' My Commission Expires:�r�� *4+:z 4394s' STATE OF WASHINGTON ) ss. County of Spokane ) On this --q day of 1997, before me personally appeared LARRY D. GELLER, to me known to be the President of ROSAUERS SUPERMARKETS, INC. the initial member of the limited liability company that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned and on oath stated that he is authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. { N���� � M Y PUBLIC in and for the State of n a, residing at .°Of ARV Print Name: My Commission Expires: i� 14 UL1G F:\USERS\16399\EASE-2.!D0�S>��. ` 12/24/97 9:52ami; 17 WX $ _ x EASEMENT AND AGREEMENT - 9 STATE W MONTANA ,,nay Pf TWhoad WQ6'9 `p M �Ar4 rf"wrdld in rite foc.'ris of Flathead County, State; of21.ana. tg� ..._...w Pd. P