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HomeMy WebLinkAboutElm Plaza License Agreement DRAFT - WasteAgreement V1(E IDI( IAN,<- APPROVED I G REQUESTED BYAND any 07/15/22 ORDED RETURN TO: FILE NUMBERA-zszz- W (Space Above For Recorder's Use) ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT This Elm Plaza Garbage Utility License Agreement ("License Agreement") is made and entered into the date set forth below by and between: CB Financial Development LLC, an Idaho limited liability company, located at 4202 North Marcliffe Avenue, Boise, Idaho 83704 ("CB Financial"), and Cottonwood Enterprises LLC, an Idaho limited liability company, located at 9165 West State Street, Boise, Idaho 83714 ("Cottonwood"), each individually referred to as a "Party" and collectively referred to as "Parties." RECITALS: WHEREAS, CB Financial is the owner of certain real property known as Elm Tree Plaza, located in Ada County, Idaho, Parcel number R7104252513, as more accurately described within Exhibit A, which exhibit is attached hereto and incorporated herein ("CB Financial Property"). WHEREAS, Cottonwood is the owner of that certain real property located at in Ada County, Idaho, Parcel number R7104251802, as more accurately described within Exhibit B, which exhibit is attached hereto and incorporated herein ("Cottonwood Property"). WHEREAS, CB Financial Property and Cottonwood Property may be referred to collectively as Parties' Properties and individually as Parry's Property. WHEREAS, CB Financial desires to grant, and Cottonwood desires to receive, the non- exclusive right to a certain portion of property located on CB Financial Property to access, use, improve, and maintain an existing garbage utility enclosure located on CB Financial Property, as described and depicted within Exhibit C ("License Access Area") and under the terms and conditions outlined hereafter. AGREEMENT: NOW, THEREFORE, and incorporating the recitals above, the parties hereby agree as follows: ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT — 1 (E IDI� IAN,_ APPROVED rant. For the purposes of nonexclusive access, use, maintenance, or improvement to an DATE 07/15/22 garbage utility enclosure located in the southeast portion of CB Financial Property, CB FILE NWBER:^-�osa W 1 hereby grants and conveys to Cottonwood a non-exclusive perpetual License to access , across, and through only that portion of CB Financial Property, as more accurately described on Exhibit C, to be used for those garbage utility purposes listed below in paragraph 2 of this Agreement ("License"). 2. Purpose of License. The License shall be a perpetual, non-exclusive License for the following purposes: Reasonable access and use by Cottonwood, and its patrons, of the garbage utility enclosure/dumpster(s) located on CB Financial Property; To make repairs or improvements, perform maintenance, or install/include additional garbage dumpster(s), or construct a new or improved garbage enclosure to house the garbage dumpster(s). 3. Covenants and Agreements of the Parties. Cottonwood shall bear all costs related to installation and construction of a new garbage utility enclosure for the purpose of shielding and enclosing the garbage dumpsters. Cottonwood shall bear all costs related to acquiring and installing any additional garbage dumpsters to be placed within the garbage utility enclosure on CB Financial Property. CB Financial shall only be responsible for the City of Meridian garbage utility cost in proportion to its respective use of the garbage utility city services, as follows; utility cost regarding one (1) garbage dumpster located within the enclosure. Cottonwood shall be responsible for the City of Meridian garbage utility cost in proportion to any and all additional garbage dumpsters located within the enclosure. Regarding the method of payment for the City of Meridian garbage utility cost, CB Financial will make the full City of Meridian garbage utility payment and then subsequently invoice Cottonwood in the amount of Cottonwood's proportionate share of the utility cost. Cottonwood must satisfy its utility payment to CB Financial within seven (7) days of receiving such invoice from CB Financial. Both Parties shall share equally in the following costs: any general, routine, or necessary maintenance; any necessary repairs, whereby said necessity did not result through fault of either individual party; and any improvement as agreed upon by the parties in writing. CB Financial, on behalf of CB Financial and CB Financial's heirs, successors, assigns, purchasers, or transferees of any kind, covenants and agrees with the Cottonwood and the Cottonwood's heirs, successors, assigns, purchasers, or transferees of any kind, that the provisions of this License Agreement (i) shall run with and bind the Parties' Properties, and (ii) shall inure to the benefit of, and be enforceable (at law or in equity) by any owner of all or part of, each Party's Property. 4. Indemnification. The Parties agree to indemnify, defend and hold all other Parties, and their successors, assigns, and agents harmless from any and all claims, liability, losses, costs, charges, or expenses that arise from their respective use or use by their respective customers, agents, invitees, or representatives of the License. ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT - 2 (E IDI� IAN,4- APPROVED emedies. In the event of a breach hereunder by any party, the non -breaching party shall DATE 07/15/22 ritten notice to the breaching party allowing thirty (30) days to cure the breach. If the FILE NWBER:^-�o�-W g party fails to cure the breach within thirty (30), after notice has been given, the non- g party may terminate this License Agreement at any time thereafter. The non -breaching party shall have all remedies available at law or in equity, including the availability of injunctive relief. In any suit, action or appeal therefrom to enforce or interpret this Easement, the prevailing party shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees and disbursements. 6. Obstructions. Unless expressly agreed upon in writing by the Parties, no fence, encroachment, or other barrier shall be erected or permitted within or across the license access area which would prevent or obstruct the installation, access, or maintenance of garbage dumpsters or garbage enclosure, provided, however, that the foregoing shall not prohibit (i) the temporary erection of barricades which are reasonably necessary for security and/or safety purposes in connection with the construction, reconstruction, repair and maintenance of the garbage dumpsters or enclosure, including the license access area, it being agreed by the Parties however, that all such work shall be conducted in the most expeditious manner reasonably possible to minimize the interference with the use of the license access area, and such work shall be diligently prosecuted to completion, or (ii) the construction of limited curbing or other forms of traffic controls along the outer perimeter of the license access area. 7. Notices. All notices, demands and requests required or desired to be given under this Agreement must be in writing and shall be deemed to have been given as of the date such writing is (i) delivered to the party intended, (ii) delivered to the then current address of the party intended, or (iii) rejected at the then current address of the party intended, provided such writing was sent prepaid. Upon at least ten (10) days' prior written notice, each party shall have the right to change its address to any other address within the United States of America. General Provisions 8. Attorney Fees and Costs. If a suit, action, or other proceeding arising out of or related to this License Agreement is instituted by any party to this License Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees, expert witness fees, and costs (i) incurred in any settlement negotiations, (ii) incurred in preparing for, prosecuting or defending any suit, action, or other proceeding, and (iii) incurred in preparing for, prosecuting or defending any appeal of any suit, action, or other proceeding. For the purpose of this section, "attorney fees" shall mean and include (i) attorney fees and (ii) paralegal fees. This section shall survive and remain enforceable notwithstanding any rescission of this License Agreement or a determination by a court of competent jurisdiction that all or any portion of the remainder of this License Agreement is void, illegal, or against public policy. 9. Counterparts. This License may be executed in counterparts, each part being considered an original document, all parts being but one document. 10. Governing Law, Jurisdiction, and Venue. This License Agreement shall be construed and interpreted in accordance with the laws of the State of Idaho. The parties agree that the courts of Idaho shall have exclusive jurisdiction and agree that Ada County is the proper venue. ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT - 3 (E IDI� IAN,— APPROVED ime of the Essence. Time is of the essence with respect to the obligations to be DATE 07/15/22 d under this License Agreement. FILE NUMBER: n-zszz ssas 'ghts Cumulative. Except as expressly provided in this License Agreement, and to the extent permitted by law, any remedies described in this License Agreement are cumulative and not alternative to any other remedies available at law or in equity. 13. Nonwaiver of Remedies. The failure or neglect of a party to enforce any remedy available by reason of the failure of the other party to observe or perform a term or condition set forth in this License Agreement shall not constitute a waiver of such term or condition. A waiver by a party (i) shall not affect any term or condition other than the one specified in such waiver, and (ii) shall waive a specified term or condition only for the time and in a manner specifically stated in the waiver. 14. Successors and Assigns. Subject to any express provisions in this License Agreement regarding restrictions on transfers or assignments, this License Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns, heirs, personal representatives, purchasers, or transferees of any kind. This License Agreement shall be recorded in the official records of Ada County, Idaho, and shall be binding on the heirs, successors, administrators, executors and assigns of all parties hereto and shall run with the land. 15. Future Parcels. Any additional parcels gaining access to the License Area by way of splitting existing parcels will be bound by all terms and conditions of this License Agreement. If any additional parcels are created after the original License Agreement is signed, the new Parties must also sign the agreement. 16. Entire Agreement. All Exhibits to this License Agreement constitute a part of this Agreement. This License Agreement, together with the accompanying Exhibits, constitutes the entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations and negotiations. IN WITNESS WHEREOF, the undersigned have caused this License Agreement to be executed the day and year first written above. Dated: Dated: CB Financial Development, LLC: Thomas M. Bevan Jr., Managing Member of CB Financial Development, LLC Cottonwood Enterprises LLC: Steven Martinez, Authorized Representative of Cottonwood Enterprises LLC ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT - 4 (E IDI� I.�1\ APPROVED DATE: 07/15/22 FILE NUMBER:^-20210W F IDAHO ) ) ss. County of ) On this day of , 2022, before me , personally appeared Thomas M. Bevan, Jr., managing member of CB Financial Development, LLC, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that they executed the sat IN WITNESS WHEREOF, I have hereunto set d and affixed my official seal the day and year in this certificate first above written. FF-1 NOTARY PUBLIC FOR IDAHO Residing at Abb, My Commission Expires STATE OF IDAHO ) ss. County of ) On this day of , 2022, before me , personally appeared Steven Martinez, authorized representative of Cottonwood Enterprises, LLC, known or identified to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that they executed the same. IN WITNESS WHEREOF, I have -hereunto set my hand and affixed my official seal the day and year in this certificate first above written. 4 NOTARY PUBLIC FOR IDAHO Residing at My Commission Expires ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT - 5 E IDI� 11 APPROVED )A:E 07/15/22 rIJ% ,ate:- I EXHIBIT A A parer., of and situated in the i`.orthwes: quarter o' Section 8, Tov.rship 3 Norlt-, Range 1 Last, Boise Meridian, Ada County Idaho. also being a portion of :hn Fasteriy 206.55 feet of the. Wester y 453.20 feet of Lot 7 of Pleasant Valley Suba-vision acc:ordirg xr Ine o`ficial plat thereof, f ed In Book 12 of Plats at Page 665. Official Hecor:!s of Ada county, Idaho, mare particularly described as follows. Cornmc;ncing a: tf,e Northwest corner of said Section 8; 'hence a org the Nora line of said Sechcr 8 South 89"S916" East 1284.20 feet to the Point of Hegirning, ;hence continuing South 89'59'16" Las! 206.55 tea to a point thence alor•g a line paral el to the Westerly boundary of sa d Lot 7 Sout n O" t 9'14" West 455.00 feet to a point Oiencc alorl a line parallel to the North bo.jrdary of said Section 8 Nord- 89"59' 16" West 2C6.55 fee'to a point; thence a'ong a lire pare"el to the Westerly boundary of said Lot 7 North 0''19'14" Fast 455.00 feet to the Point of Begirning. _ess ar'd Cxccuting (heiefrorn A strip o' land lying between the %crth line of ' of 7 of '� easant Valley Suadivls on, accord rig to Ine o'ficial pla'thercof. filed 11 Book 12 of Plal5 at Pa,e 665, Official Pecords of Ada County. Idaho, ano aline parallel 'o and distant 50.0 feet Southerly from the 'ollnwing described eerier lire of h:ghway as surveyed and shown on the o'ticial pla' of U.S. 30 - Project No. 3281'S) itighway Surrey or. file in the of ce of the Decartment of -i yhways of the State ;;f Ihanc. and lying Ir a portior of the North hall of the Northwest quar'er of Section 8, Township 3 North, Hange 1 Fast, Bo+se Meridian Ada Cc,in'y, Idaho, described as fc,lows, (Begin lirg at Station 84 r 51.8 of tric said I I g!iway St.rvey, which Slation Is a oornt on tangent aop•oximatcIv 1 1.2 fee' North and 284.0 feet East from the Nurt'iwest corner or Section 8, Townsmp 3 Norlr?, Parge 1 Fasl. Boise Mcnd:an; thence running South 89"58' Fast 207.2 tece to Station 864 61.0 of said Survey, wh',ch station is if ooln' on'anger'. apwoxirnate'y 1C.2 feel North aed t 161 .6 feet West from lw� Nortl- quarter corner of Sect on 8, Township 3 North, Rwige 1 Last, Boise Mendiar. Ada County, Idaho. A'sc Less and Excepting Therefrom' A parcel of ianJ ocated it the Norhwest quarter o! Ser..tior- 8, Township 3 North, Flange 1 Fast, Bose Meridian, Ada Ccunty, Idaho, being a portion of tre Laster 206. i`i feet cif 'he Westerly 453.20 feel of I of 7 cif Pleasant Valiey Subdivision, accordhig to the of :cia plat b.ereof, 'ilea in Book 12 of Plats at Pace 665, Officia. Records of Ada Co,mty, daho, enure narLcularly described as 'ollows Comme-icing at the Norhwest corner cf sad Section 8, marKed by a brass cap rnorumenl; thence. South 89"59'1 W Fast 1284,20 feet along the Northerly . ie o! said Sectiun 8: thence South 00' 19'14" West 38.40 feet to he Irue Pc;in' of Beg,im.ng, said poet tieing on lf•e Southerly right-of-way lire o' Fairview Avenue: thence Scuth 89, 32'56" cast 206.54 'eet aEong Sai:7 Souther!y r gh:-of-way !ire; 'hence South 00" 1 9' 1 4" W(!,3t 4.00 tee'; thoru,c North 89' 32'56" West 206.54 feet and para..el with said Soi,therly rign:-cf-stay line: thence North 00 19'14' East 4,00 fcrct'o the Point of Beginn rig. Also Less and Excepting Thorefiom A parcel of lard located 'I the North,.ves' quarter O' Se('tinn 8 Township 3 North, Harge 1East, Boise Meridian, Ada county, Idaho, beirg a portion of the Fasteriy 206.55 'cot of '.he We<lerly 4S3.2C, feel of Lot 7 of Pleasart Valley Suodivsion, more uarlic,ilarly described as to, ows Commencing at 'he Northwest corner of said Stet on 8, marked b'y a brass cap monument; thence So,ith 89`59'1 5" East '284.20 feet alorg the Nortnedy ire o' sa.d Section 8: thence South 00" 1 9' 1 4" West 415.00 feet to the rue Point of 3eginniriq, hence -- -- Scuin 89'-)9'16' East 206,54 feet and parallel with the Northerly Lne of said Sector 8; t'lence Seu;h 1019' 14" tiNfest 40.0o fret. inence North 89'59'16" West 206.54 feet and parallel to tf:e Nlmtl-eriy Brie of said Section 8 thence North 00' 1914" t ast 40.00 feel to the Pont o` Beg ining. 11,e Peal Property or its a ;lmss is commonly known as 203' L �-a rview Avenue, Meridian. ID 83642. The Real Propwily !ax denlificat:m number is R71042525'3. ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT - 6 APPROVED )A:E 07/15/22 j %UtJB;R'A 2G22- EXHIBIT B R1f MI-ot 6, Pleasant Valley Subdivision, according to the official plat thereof, fled in Book 12 of Plats at Page 665, records of Ada County, Idaho, described as follows: Beginning at the Northwest corner of Lot 6, Pleasant Valley Subdivision, in the West quarter of Section 8, Township 3 North, Range 1 East, of the Boise Meridian, Ada County, Idaho, designated as the Point of Beginning; thence Southerly along the West boundary line 450.5 feet to a point; thence Easterly at a 90 degree angle,100 feet to a point; thence Northerly and parallel to the West boundary of Lot 6, a distance of 450.5 feet to a point; thence Westerly and parallel to Fairview Avenue,100 feet to the Point of Beginning. Except the following the described property: A strip of land situated between the North line of Lot 6 of the Pleasant Valley Subdivision, and a line parallel to and distance 50.0 feet Southerly from the following described centerline of highway as surveyed and shown on the official plat of U.S. 30, Project No. F3281(5) Highway Survey on file in the office of the Department of Highway of the State of Idaho, and lying in a portion of the Northeast quarter of the Northwest quarter of Section 8, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, as follows: Beginning at Station 86+61.0 of the said Highway Survey, which station is a point on tangent approximately 10.2 feet North and 1161.6 feet West from the North quarter comer of Section 8, Township 3 North, Range 1 East, Boise Meridian; thence running South 89*58' East 193.7 feet to Station 88+54.7 feet of said survey which station is a point on tangent approximately 8.5 feet North and 967.9 feet West from the North quarter comer of Section 8, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho. And Further Excepting Therefrom that portion of Lot 6 as conveyed to the Ada County Highway District by Corporation Warranty Deed recorded March 18,1996 as Instrument No. 96022166, records of Ada County, Idaho. ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT - 7 E IDI� 11 APPROVED )A:E 07/15/22 j %UtJB;R'A 2G22- EXHIBIT C ELM PLAZA GARBAGE UTILITY LICENSE AGREEMENT - 8