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10-10-22 Permanent Public Use and Construction and Maintenance EasementReturn to: Kalispell City Clerk P.O. Box 1997 Kalispell, MT 59903-1997 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII2022 Page:1 of7716 Debbie Pierson, Flathead County MT by JW 10/20/2022 1:S4 PM PERMANENT PUBLIC USE AND CONSTRUCTION AND MAINTENANCE EASEMENT THIS EASEMENT granted this —LQ 1= day of UcA0h0V , 2022 by and between WSPGB MALL L.L.C., a Foreign Limited Liability Company, in care of Goodale & Barbieri Company, of 818 W. Riverside Ave, Ste 300, Spokane, WA 99201, hereinafter called GRANTOR, and the City of Kalispell, a Municipal Corporation, of P.O. Box 1997, Kalispell, MT 59903, hereinafter called GRANTEE. f WITNESSETH. GRANTOR is the owner, in fee, of the following described real property, hereinafter referred to as the GRANTOR property: Tract 1 of Certificate of Survey No. 6921 of record in the Office of Clerk and * Recorder, Flathead County, Montana and situated in the S'h of the S'h of Section 7, Township 28 North, Range 21 West, PMM, Flathead Montana For value received, GRANTOR does hereby grant to GRANTEE, a construction easement and right of way in, over, and across the asphalt parking lot located within the GRANTOR property according to the Certificate of Survey No. 6921 of record in the office of the Flathead County Clerk and Recorder of Flathead County, Montana in order to construct and maintain trail side improvements described below and specifically located within the boundaries set forth in the map and/or legal description provided as EASE C in Exhibit "A" and more particularly shown in Exhibit "A-C," attached hereto and fully incorporated herein by this reference. A construction easement is granted herein for the purpose of providing GRANTEE and its agents the right to construct a concrete trail, landscaping and irrigation, storm water pipe and similar improvements as shown in the City of Kalispell Trail and Complete Street Project 100% Design plans to be located within the boundaries set forth in the map and/or legal description provided as EASE C in Exhibit "A" and more particularly shown in Exhibit "A-C," attached hereto and fully incorporated herein by this reference, together with the limited right of ingress and egress in, over and across the asphalt parking lot of the GRANTOR property in order to access the easement area to perform the aforementioned construction and maintenance as set forth below. A permanent public use easement is also hereby granted for the purposes of trail use only, and any use other than as a right-of-way for passage over GRANTOR'S property, such as picnicking or other stationary activities, shall require the consent of GRANTOR. �d GRANTEE shall be responsible to restore all surfaces disturbed as the result of the construction and maintenance to the same or better condition that existed immediately prior to the construction or maintenance and all work shall be done in a timely and workmanlike manner. GRANTEE shall be responsible for all future maintenance of the improvements it causes to be constructed within the easement herein described. All costs in connection therewith shall be paid by GRANTEE with no harm or costs to GRANTOR. Nothing with this CONSTRUCTION AND MAINTENANCE EASEMENT shall negatively harm GRANTOR, its affiliates, or its properties. If GRANTEE fails to maintain the improvements as set forth in this Easement and such failure shall not have been corrected within thirty (30) calendar days following receipt of written notice thereof, or if such failure is such that it cannot be corrected within thirty (30) calendar days and GRANTEE shall not have commenced to correct such violation within thirty (30) calendar days, then GRANTOR may, in addition to whatever other rights and remedies it may have at law or in equity, take such action which is considered to be commercially reasonable and prudent in scope and cost to correct the violation for and on behalf of GRANTEE at GRANTEE's expense. Upon completion of such cure, the GRANTOR shall invoice GRANTEE for the reasonable costs and expenses incurred by GRANTOR in correcting such failure. The cure or correction of the failure by GRANTOR shall not be deemed to waive the default, unless GRANTEE makes payment to GRANTOR within the periods set forth in this paragraph. GRANTOR shall not impair GRANTEE's use of the easement described above; however, GRANTOR shall have the right to install, construct, maintain, repair, and replace utilities within the easement area, or to grant to third -parties the right to do the foregoing, provided that GRANTOR, or such third party, restores all improvements disturbed as result of the foregoing to the same or better condition that existed immediately prior to the construction or maintenance and all work is done in a timely and workmanlike manner. Furthermore, GRANTOR shall have the right, to direct and convey storm and surface water in accordance with City of Kalispell Design standards from the GRANTOR property to the vegetated natural buffers and swales designed for such use located within the easement area provided that GRANTOR restores all improvements damaged as result GRANTOR'S use of the foregoing to the same or better condition that existed immediately prior to such damage and all work is done in a timely and workmanlike manner. Any easement granted to, purchased, or utilized by GRANTEE or any affiliates on GRANTOR's property shall in no way be used for commercial purposes GRANTOR reserves its exclusive right to use and occupy the property for any legal purpose. GRANTEE or any affiliates, successors, assigns, licensees, or invitees shall have no use or rights to use the area with the exception of maintenance and construction and for pedestrian and bicycle walkways. By GRANTEE'S acceptance of this Easement, GRANTEE agrees to indemnify and save harmless GRANTOR, its heirs, successors, and assigns, and each of them, from any and all Return to: Kalispell City Clerk P.O. Box 1997 Kalispell, MT 59903-1997 damages, liability, and expense (including reasonable attorney fees) resulting from any claims, demands, actions, liabilities, damages, and/or causes of action of any kind for injury to persons or property, including death, arising out of anyone one's use of the easement or exercise of the rights granted herein. If GRANTEE or its agents maintain insurance for the use and risk associated with the easement grant herein, then GRANTEE or its agents shall name GRANTOR as an additional insured. The location of this Easement may be relocated or terminated upon the mutual agreement of both GRANTOR and GRANTEE. Neither this Easement nor any rights granted herein shall be assigned by GRANTEE without first obtaining the written consent of GRANTOR. [Remainder of Page Intentionally Left Blank] WSPGB MALL L.L.C., a Utah limited liability company By: WOODBURY STRATEGIC PARTNERS FUND, L.P., a Delaware limited partnership, Its Manager By: WSP TRUFFLES L.L.C., a Delaware limited liability company, Its General Partner By: WOODBURY STRATEGIC PARTNERS MANAGEMENT L.L.C., a Utah limited liability company, Its Manager By: WOODBURY CORPORATION, a Utah corporation, Its Authorized Representative Un O. Randall Woodbury, President M [Remainder of Page Intentionally Left Blank] Return to: Kalispell City Clerk P.O. Box 1997 Kalispell, MT 59903-1997 ACKNOWLEDGMENTS STATE OF UTAH . SS. COUNTY OF SALT LAKE I nr/u On the day of C'h btx- 2022, before me personally appeared O. RANDALL WOODBURY, to me personally known, who being by me duly sworn did say that he is the President of WOODBURY CORPORATION, a Utah corporation, known to be the Authorized Representative of WOODBURY STRATEGIC PARTNERS MANAGEMENT L.L.C., a Utah limited liability company, Manager of WSP TRUFFLES L.L.C., a Delaware limited liability company, General Partner of WOODBURY STRATEGIC PARTNERS FUND, L.P., a Delaware limited partnership, Manager of WSPGB MALL L.L.C., the company that executed the within instrument, known to me to be the person who executed the within instrument on behalf of said company therein named, and acknowledged to me that such company executed the within instrument pursuant to its Operating Agreement. op TIFFANY STEELE Notary Public State of Utah v My Commission Expires on: Pu 1 March 09, 2026 Comm. Number: 723088 STATE OF UTAH ) ss. COUNTY OF SALT LAKE ) On the day of N6 bix 2022, before me personally appeared , to me personally known, who being by me duly sworn did say that he is the C rhk 0 4 of WOODBURY CORPORATION, a Utah corporation, known to be the Authorized Representative of WOODBURY STRATEGIC PARTNERS MANAGEMENT L.L.C., a Utah limited liability company, Manager of WSP TRUFFLES L.L.C., a Delaware limited liability company, General Partner of WOODBURY STRATEGIC PARTNERS FUND, L.P., a Delaware limited partnership, Manager of WSPGB MALL L.L.C., the company that executed the within instrument, known to me to be the person who executed the within instrument on behalf of said company therein named, and acknowledged to me that such company executed the within instrument pursuant to its Operating Agreement. EWLAURIE HI GGS Notary Public U I tory Public State of Utah Commission Expires on:Apr1u 2026omm. Number: 724393 EXHIBITS "A" and "A-C" 5%-OCVC 29 Fourth pveVdN g1OCK 30 CITY OF KALISPELL FLATHEAD COUNTY mmmm mums. EASE B i L LL�N LLNas LL LLLL LLL LL LLL LLL z LLLL w LLLL LLLLL LLLL m LLLLL LLLLL I LLLLLL LnLLLLLL LLLLL LLLLLL LLLLLL N LLLLLL O LLLLLL LLLLLL EASE D = LLLLLL 1 r_ LLLLLL Z LLLLLL r" LLLLLL o LLLLLL LLLLL � LLLLLL I n LLLLLL o Z LLLLLL w LLLLLL LLLLLL 53 0 LLLLLL �^E : EXHI81 T A-C MALL PROPERTY EASEMENT C EASE C = 0.24 Acres WSPGB MALL LLC (Mall Property) Tract 1 COS No. 6921 LLLLLL 3 Z$`3LL oo'\1�s LLLLLLLS LLLLL >, �' a LL Ease C LLLLLL �s.o ems' LL 0.24 Acres LLLLLLL L------LLLLLLL LLLLLLLLLLLLLLLsa NW COR. LLLLLLLLLLLLLL COS.6921 LLLLLLLLL LLLL N1o°19'35ww 8775 Ave WN Fifth N I 1i*oi*Oi*oi*oi4l • ?11=11�1=11F 20 0 20 10 SCALE FEET EASE B <<s K L) --- ) KKL^/�J 2021" V