HomeMy WebLinkAboutJoint Access and Maintenance Agreement 311 V1E IDI� 11
APPROVED
DA EI 04ro1/22
ADA COUNTY RECORDER Phil McGrane 2022-025196
BOISE IDAHO Pgs=12 CHE FOWLER 03/11/2022 03:12 PM
TITLEONE BOISE $43.00
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Recording Requested by and
When Recorded Return to:
Aspen Grove Holdings, LLC
989 South Industry Way, Suite 102
Meridian, Idaho 83642
Attn: Matt Kuzio
APNs: S1224223460, S1224223495, S1224223535, S1224223551
JOINT ACCESS AND MAINTENANCE AGREEMENT
THIS JOINT ACCESS AND MAINTENANCE AGREEMENT (this "Agreement") is
made as of this 11- day of ` r 201:,("Effective Date"), by and between ASPEN
GROVE HOLDINGS, LLC, an Idaho limited liability company, whose address is 989 South
Industry Way, Suite 102, Meridian, Idaho 83642 ("Aspen"), and S3 INVESTMENTS L.P., an Idaho
limited partnership, whose address is 1016 W. Sanetta St., Nampa, Idaho 83651 ("S3" ). Aspen
and S3 may be referred to herein as a "P=," and collectively as the "Parties".
RECITALS
A. Aspen owns that certain real property generally located at 1575 W. Overland
Road, Meridian, Ada County, Idaho, 83642, Parcel Numbers S1224223460, S1224223495 and
S1224223535, being more particularly described on the attached Exhibit A (the "Aspen
Prope�yt ")
B. S3 owns that certain real property located at 1750 S. Linder Road, Meridian, Ada
County, Idaho, 83642, Parcel Number S1224223551 being more particularly described on
attached Exhibit B (the "S3 Property", and together with Aspen Property, individually, a
"Pro e ", and collectively, the "Properties');
C. There is an existing driveway located on the S3 Property which provides access
from South Linder Road to the S3 Property ("S3 Driveway");
D. Aspen desires to expand the S3 Driveway onto the Aspen Property ("Proposed
Extension") to provide access to the Aspen Property from South Linder Road; and
E. Aspen and S3 desire to enter into this Agreement for the purpose of providing a
means of vehicular and pedestrian ingress and egress over, upon and across the S3 Driveway and
Proposed Extension over that portion of each Property, as more particularly depicted on Exhibit
C attached hereto and made a part hereof by this reference (the "Joint Access Easement Area"),
and provide temporary access over the S3 Property for the construction of the Proposed
Extension.
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APPROVED
DAT oarovz2
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Aspen and S3 agree as follows:
1. Joint Access Easement. Each Party does hereby grant and convey to the other
Parry and its successors and assigns, for the use of such other Party and its successors and
assigns, and for the use of their respective agents, representatives, employees, contractors,
licensees, guests, invitees, and tenants (collectively, the "Permittees"), in common with others
entitled to use the same, a non-exclusive easement over the Joint Access Easement Area for the
purpose of providing pedestrian and vehicular ingress and egress over, upon, and across the Joint
Access Easement Area of each Property (collectively, the "Joint Access Easement"). The Joint
Access Easement, to the extent not located on a Party's Property, shall be appurtenant to and for
benefit of such Parry's Property, and, to the extent located on a Parry's Property, shall be binding
on, enforceable against and burden such Party's Property.
2. Construction of Proposed Extension. S3 hereby grants Aspen a temporary access
easement ("Temporary Easement") over that portion of the S3 Property necessary for the
construction of the Proposed Extension within the Joint Access Easement Area. Aspen shall, at
its sole cost and expense, construct the Proposed Expansion within the Joint Access Easement
Area and repair any damage that occurs to the S3 Property as a result of such work. Aspen shall
further provide, prior to commencing any construction work, notice to S3 of the proposed work.
The Temporary Easement shall terminate upon the substantial completion of the construction of
the Proposed Extension; provided, however, that the Joint Access Easement and all other terms
and conditions of this Agreement shall remain in full force and effect.
3. Maintenance and Costs. Once the construction of the Proposed Extension is
substantially complete, Aspen shall be responsible for the maintenance and repairs of the Joint
Access Easement Area and shall keep the Joint Access Easement Area in good working order
and condition at all times in accordance with the standards of a first-class commercial project
located in Ada County, Idaho. The Parties shall split the costs for the maintenance and repair of
the Joint Access Easement Area as follows: Aspen shall be responsible for 85% of such costs and
S3 shall be responsible for the remaining 15% of such costs. S3 shall reimburse Aspen for its
share of such costs within 15 days after receipt of an invoice for same. In the event any
improvement or repair to the Joint Access Easement Area exceeds $25,000.00, or the Joint
Access Easement Area needs to be expanded further, the Parties agree to jointly negotiate the
cost allocation of the improvement or repair. Notwithstanding anything to the contrary herein,
each Party shall be solely responsible for any damage, repair or destruction of the Joint Access
Easement Area or any portion thereof due to the use of the Joint Access Easement Area by a
Party or its Permittees or the negligence of such Party or its Permittees. Notwithstanding the
foregoing, S3 shall be responsible, at its sole cost and expense, for the maintenance and repair of
the portion of the Joint Access Easement Area located on the S3 Property until the construction
of the Proposed Extension is substantially complete.
APPROVED
Da:e 04/01/22 4 Default/Cure. In the event that either Party fails to perform its obligations with
ct to maintenance and costs as outlined in Section 3 or otherwise commits a material breach
J %UtJa;RA2G22N21 fault under this Agreement, the non -defaulting Party shall provide written notice of such
failure to the defaulting Party, and the defaulting Party shall have 20 days to perform cure such
breach or default after the date of receipt of such notice (or, if the failure cannot be remedied
within said 20 day period, then within such longer time as is required to complete the same
(provided the defaulting Parry commences to perform such obligations within said 20 day period
and continues to perform same with diligence to completion)) (the "Cure Period"). If the
defaulting Party fails to cure such default or breach within the Cure Period, then the non -
defaulting Party may (but is not obligated to) perform such obligations and to charge the
defaulting Party for all costs and expenses thereof and the defaulting Party shall reimburse the
non -defaulting Party within 30 days after receiving invoices therefor. It is expressly agreed that
no breach of this Agreement shall entitle a Party to cancel, rescind or otherwise terminate this
Agreement; provided, however that this provision shall not limit or otherwise affect any other
right or remedy which each Party may have hereunder by reason of any breach of this
Agreement.
5. Mechanics' Liens. Each Party shall keep the Joint Access Easement Area free
and clear of all liens and claims of liens for labor and services performed on, and materials,
supplies or equipment furnished to, such Party in connection with such Party's maintenance and
repair obligations under this Agreement (or otherwise arising under such Parry). If any such lien
arises and encumbers the other Party's Property, such Party shall either (a) satisfy the lien, or (b)
contest the validity of any lien within thirty (30) days after it receives notice of such lien.
6. Restrictions on Barriers. Neither Party shall construct, obstruct, place or permit to
be placed any fences, barriers or other obstacles which unreasonably obstructs ingress and egress
through the Joint Access Easement Area; provided, that, notwithstanding anything herein to the
contrary, Aspen shall have the right to temporarily close any portion of the Joint Access
Easement Area or otherwise restrict access to the portion of the Joint Access Easement Area in
connection with Aspen's maintenance obligations pursuant to Section 3 hereof as long as the
other Party has alternate access to South Linder Road during such temporary closure and the
Aspen provides prior written notice to S3 of such temporary closure.
7. Reservation. The Joint Access Easement granted herein is not exclusive, and each
Party hereby expressly reserves the right, for itself and for its successors and assigns, without the
prior consent of the other Parry, to grant such other, similar or dissimilar, easements, rights,
benefits, rights -of -way and privileges to such other persons and for such other purposes as such
Party may elect in its sole and absolute discretion; provided, however, that any such easements,
rights, benefits, rights -of -way and privileges hereafter granted shall not unreasonably interfere
with or unreasonably restrict the use of the Joint Access Easement Area and the other rights and
benefits appurtenant thereto or granted herein to the other Party.
8. Liability Insurance. Each Party hereby covenants and agrees that it shall obtain
and shall at all times thereafter maintain at a minimum commercial general liability insurance
with respect to the portion of the Joint Access Easement Area located on such Parry's Property,
naming the other Party as an additional insured, and insuring against claims of bodily injury and
APPROVED
DAT 04/01/22 rty damage occurring on or about the portion of the Joint Access Easement Area located on
�1,E %U69 BER n-2ozz- z^ Party's Property, with minimum liability limits of no less than $1,000,000 per occurrence
2,000,000 aggregate.
9. Mutual Indemnity. Each Party (the "Indemnifying in Party") shall indemnify,
defend and hold the other Party and its successors and assigns (the "Indemnified Party')
harmless from and against all claims, demands, costs, losses, expenses and liability, including
reasonable attorneys' fees and cost of suit, arising out of or resulting from the use of the Joint
Access Easement Area by the Indemnifying Party and/or its Permittees or any failure of the
Indemnifying Party to perform its duties or obligations under this Agreement; provided,
however, the foregoing indemnification obligation shall not apply to claims or demands to the
extent based on the negligence or willful act or omission of the Indemnified Party.
10. Dedication Disclaimer. Nothing contained in this Agreement shall be deemed to
be a gift or dedication of any property affected hereby, or any portion thereof, to the general
public or for any public use or purpose whatsoever, it being the intention of the Parties hereto,
and their successors and assigns, that nothing in this Agreement, expressed or implied, shall
confer upon any person, other than the Parties hereto and their successors and assigns, any rights
or remedies under or by reason of this Agreement.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Idaho.
12. Severability. This Agreement is intended to be performed in accordance with,
and only to the extent permitted by, all applicable laws, ordinances, rules, and regulations. If any
provision of this Agreement, or the application thereof to any person or circumstance, shall, for
any reason and to any extent be invalid or unenforceable, the remainder of this Agreement and
the application of such provision to other persons or circumstances shall not be affected thereby
but rather shall be enforced to the greatest extent permitted by law.
13. Multiple Counterparts. To facilitate execution, this Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same agreement.
14. Binding Effect. Each Party does hereby covenant and agree, to the extent of its
ownership interest in its respective Property, that the easements, rights, covenants and
obligations created herein are intended to run with title to each of the Properties, and that this
Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their
respective successors and assigns and all other persons or entities having or hereafter acquiring
any right, title or interest in either of the Properties, and all other persons and entities claiming
by, through or under the Parties hereto and their respective successors and assigns.
15. Notices. Any notice or other communication which is provided for or required by
this Agreement must be in writing and may be delivered in person to any party or may be sent by
Federal Express or other reputable courier service regularly providing evidence of delivery, or
registered or certified U.S. mail, with postage prepaid, return receipt requested (with charges
APPROVED
DAT 04/01/22 by the party sending the notice). Any such notice or other written communications shall be
ed received by the party to whom it is sent (a) in the case of personal delivery, on the date
��_E ,���a;R A�o��-0�� [livery to the party to whom such notice is addressed, (b) in the case of email, on the date of
delivery to the parry to whom such notice is addressed, (b) in the case of courier delivery, the
date receipt is acknowledged by the parry to whom such notice is addressed, and (d) in the case
of registered or certified mail, the earlier of the date receipt is acknowledged on the return receipt
for such notice or five business days after the date of posting by the United States Post Office.
For purposes of notices, the addresses of the Parties hereto shall be as follows, which addresses
may be changed at any time by written notice given in accordance with this provision:
Aspen: Aspen Grove Holdings LLC
989 South Industry Way, Suite 102
Meridian, Idaho 83642
Attention: Matt Kuzio
Email: mkuzio@redaspen.com
S3: S3 Investments, L.P.
1016 W. Sanetta St.
Nampa, Idaho 83651
Attention: Steve Schimdt
Email: slsboi@yahoo.com
16. Time of Essence. Time is of the essence in the performance of this Agreement.
17. Entire Agreement; Amendment. This Agreement constitutes the entire agreement
of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements
and understandings, whether written or oral, between the Parties with respect to the matters
contained in this Agreement. This Agreement may be modified, rescinded or amended, in whole
or in part, only by a written instrument duly executed, delivered and recorded that is entered into
by the Parties hereto, or by their respective successors or assigns.
18. Headings. The paragraph headings in this Agreement are for convenience only,
shall in no way define or limit the scope or content of this Agreement, and shall not be
considered in any construction or interpretation of this Agreement or any part hereof.
19. Exhibits. This Agreement shall be deemed to include all exhibits attached hereto,
which exhibits are incorporated herein by reference, and shall be binding upon and inure to the
benefit of the Parties hereto and their successors and assigns.
20. Estoppels. Each Party, upon the written request of the other Party (the
"Requesting Party_"), in connection with the sale, long term ground lease, financing or
refinancing of the Requesting Parry's property, shall execute and deliver a certificate in favor of
the applicable ground lessee, lender or purchaser certifying whether, to such party's knowledge,
the Requesting Party is in default of any of its duties or obligations under this Agreement. Such
certificate of such party shall be binding upon such party and inure to the benefit of such lender,
ground lessee or purchaser as of the date of its issuance.
APPROVED
DAT 04/01/22 21. Attorneys'. If any attorney is engaged to enforce or defend any provision of
L, E,I U M BE R, A2G22 D024 greement or as a consequence of any default under or breach of this Agreement, with or
lut the filing of any legal action or proceeding, and including, without limitation, any fees
and expenses incurred in any bankruptcy proceeding or in connection with any appeal of a lower
court decision, the prevailing parry, as agreed to by the Parties or as determined by the court,
shall be entitled to its reasonable attorneys' fees and expenses and all costs incurred in
connection therewith.
[Signatures on the Following Page]
APPROVED
DA EI 04/01/22
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
ve as of the Effective Date.
ASPEN:
ASPEN GROVE HOLDINGS, LLC, an Idaho limited
liability company
By: 4ir k.2
Name: �1t' 4 c:;,
STATE OF IDAHO )
) ss.
COUNTY OF dr, )
The foregoing instrument was acknowledged before me this 1 2' day of jOAK—j
202 , by as - 'f``of ASPEN GROVE HOLDINGS, LLC, an Idaho limited
liability company.
Witness my hand and official seal.
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My commission expires: w/'�y/%
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����'�""""`•��, Notary Public
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APPROVED
DAT oarov22
S3:
S3 INVESTMENTS, L.P.
an Idaho limited partnership
Name:
5f.e (, e S� h µ, • oC T
Title:
G�reu�t3��L
STATE OF IDAHO )
ss.
COUNTY OF n� )
The foregoing instrument was acknowledged before me this q' l day of Sz_AA_,M
20-A, by S as , of S3 INVESTMENTS, L.P., an Idaho limited
partnership.
Witness my hand and official seal.
My commission expires: % l / D L ®23
THERESAA.PEPERSEN
52695 Notary Public
ENOTARY PUBLIC
STATE OF IDAHO
APPROVED
DAT 04rov22
�IJ'uMa_R:-
EXHIBIT "A"
Description of the Aspen Property
A parcel of land in the Northwest Quarter of Section 24, Township 3 North, Range I West, Boise Meridian, Ada
County, Idaho, more particularly described as follows:
Commencing at the Section Corner common to Sections 13, 14, 23 and 24, Township 3 North, Range I West, Boise
Meridian: thence
South 89°54' East, along the section line common to Sections 13 and 24, a distance of 218.00 feet; thence
South 00*15' West, 199.81 feet; thence
North 89057' West, 218.00 feet to the Section line common to Section 23 and 24, thence
North 00*15' East along said Section Line 200.00 feet to the POINT OF BEGINNING.
ALSO
A parcel of land in the Northwest Quarter of Section 24, Township 3 North, Range 1 West, Boise Meridian, Ada
County, Idaho, more particularly described as follows:
Commencing at the Section Corner common to Sections 13,14, 23 and 24. Township 3 North, Range I West, Boise
Meridian: thence
South 00115' West, along the Section line common to Sections 23 and 24, a distance of 200.00 feet to the POINT
OF BEGINNING, thence continuing
South 00°15' West, along said Section line 200.00 feet; thence
East, 218.00 feet; thence
North 00*15' East, 199.81 feet; thence
North 89057' West, 218.00 feet to the POINT OF BEGINNING.
ALSO
A parcel of land in the North Half of the Northwest Quarter of Section 24, Township 3 North, Range I West, Boise
Meridian, Ada County, Idaho, described as follows:
Commencing at a point marking the Section corner common to Sections 13, 14, 23 and 24, Township 3 North,
Range 1 West, Boise Meridian, Ada County, Idaho, from which the Quarter corner common to said Sections 23
and 24 bears South 00%5'00" West along the West line of said Section 24, a distance of 400.00 feet; thence leaving
said West line, North 90°00'00" East (formerly East), a distance of 218.00 feet (formerly 243 feet) to a point
marking the POINT OF BEGINNING; thence continuing
North 90°00'00" East (formerly East), a distance of 109.10 feet; thence
North 00015'00" East, a distance of 397A8 feet (formerly 399.44 feet) to a point on the North line of said Section
24; thence along said Section line
North 89°33'34" West (formerly North 89*54' West), a distance of 109.10 feet; thence leaving said Section line
South 00015100" West, a distance of 398.32 feet (formerly 399.66 feet) to the POINT OF BEGINNING.
s9'C
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APPROVED
DAT 04/01/22
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;
EXHIBIT "B"
Description of the S3 Property
APPROVED
DAT 04/01/22
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EXHIBIT "C"
Depiction of the Joint Access Easement Area
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APPROVED
DAT 04/01/22
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