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HomeMy WebLinkAboutEasement9606577 . _, . - • • AFTER RECORDING RETURN TO: The Playground, Inc. c/o MEULIIVIAN, MII T .F,RR & CUNIlVIINGS LLP 960 Broadway, Suite 400 Boise, Idaho 83706 Attention: Robert L. Miller QDA CC. RECGRDER BOISE ID ., ALLiANi/E Ti T LE '96 JUN 1 3~Pf~ 38 FEE<<~ l~- ~'. RECORSEJ kT T;.~ ..~.JcST OF v EASIIVIENT AGREEMENT THIS EASEMENT AGP;F.EMENTIVE ("Agreement") is made and entered into this 3rd day of June, 1996, by and between The Playground, Inc., an Idaho corporation ("Playground"), and Contractor's Equipment Supply Company, Inc., an Idaho corporation ("CESCO"). RECITALS A. Playground is the owner of that certain real property described as Lot 2 ("Lot 2") and Lot 3 "Lot 3") of Block 1 of The Playground Subdivision, as recorded as Instrument No. 9604539 in Book 71, at Pages 7318 and 7319, records of Ada County, Idaho (the "Subdivision"). Concurrently with the execution of this Agreement, the Playground has conveyed that certain real property consisting of Lot 1, Block 1, of the Subdivision to CFSCO. Lots 1, 2 and 3 are shown on Exhibit "A" attached hereto and Lot 1. Playground, CESCO and their successors and assigns are sometimes referred to as "Owner" . B. Lot 1 is improved for use as and is now used as a golf driving range. C. The golf driving range utilizes certain facilities located on Lots 2 and 3 consisting of: (1) A building used as a starter building (the "Starter Building")for storing materials and supplies, for selling tickets to customers for the driving range, and for other ancillary purposes for the driving range; (2) Vehicular entry and parking areas shown on Exhibit "A"; and (3) A pump, well and piping to deliver pressurized water for irrigating the driving range on Lot 1. EASEMENT AGREEMENT -Page 1 MM&C 1571.03 06/03/96 D. A pylon sign located on Lot 1 and shown on Exhibit "A" advertises the business conducted on Lots 1 and 3, and in the future may advertise the business to be conducted on Lot 2. E. The parties desire to provide easements and agreements for continuation of each of the facilities described above under certain terms and conditions. AGREEMENT NOW, Ti~FRF.FORE, for valuable consideration, each party hereby creates, grants and conveys the following easements, which easements shall be for the benefit of Lots 1, 2 and 3, shall be permanent except as otherwise provided herein, shall run with the land, and shall bind and benefit each of the parties hereto and their respective successors and assigns: 1. Playground hereby grants to CESCO an easement for vehicular and pedestrian ingress and egress over and across that portion of Lot 2 now improved for use as a drive entry way and parking lot as shown on Exhibit °'A" attached hereto. Playground further grants to CESCO an easement to use the existing Starter Building. The easements granted and obligations undertaken in this Paragraph shall continue only for so long as Lot 1 is used as a golf driving range. With respect to the Starter Building, such easement shall cease at such time as CESCO is able to locate a Starter Building on Lot 1, and CESCO agrees it will use its best efforts to so locate a Starter Building on Lot 1 within three (3) years. At the present time, the area surrounding the drive, parking area and Starter Building is unimproved and is not used by Playground, but the easements hereby granted with respect to the drive and parking areas are non-exclusive and Playground may elect to use such undeveloped areas in the future and may use the drive and parking areas in common with CESCO. Such drive and parking areas shall be maintained by Playground unless otherwise mutually agreed by the parties, and Playground and CESCO shall each pay fifty percent (50%) of the cost of maintaining in good repair and condition such drive and parking areas. For so long as CESCO makes use of the Starter Building, CESCO shall maintain and repair the same at CESCO's sole cost and expense under certain terms and conditions. 2. Playground hereby grants to CESCO an easement and right to use pressurized irrigation water from the existing irrigation system. The easement granted and obligations EASEMENT AGREEMENT -Page 2 MMBr.C 1571.03 06/03/96 i •. undertaken in this Paragraph shall continue only for so long as Lot 1 is used as a golf driving range. Playground shall maintain and operate the irrigation system, including the well, pond, pumps and underground and above-ground pipes located on Lots 2 and 3 so as to supply water to Lot 1, until CESCO elects to cease using Lot 1 as a golf driving range. The cost of maintaining and operating the irrigation system shall be divided between Playground and CESCO based upon the relative quantities of water used on Lots 1, 2 and 3, which cost shall include all costs of operating, maintaining, repairing or replacing such system and taxes on the system and land used exclusively for such system. 3. CESCO hereby grants to Playground a permanent easement to operate, maintain and use fifty percent (50 %) of the allowable signage area on that certain sign pylon shown on Exhibit "A". Each Owner shall share one-half (1/2) of the cost of the existing lease for such sign pylon, and future maintenance and repair costs. Each Owner shall have the right to use fifty percent (50%) of the sign area allowed on such sign pylon. In the event CESCO elects to cease using Lot 1 as a golf driving range, then CESCO shall pay for the cost of relocating the sign pylon to Lots 2 or 3 at a location designated by Playground, and CESCO shall, to the extent reasonably possible, elevate the sign at CESCO's expense to the maximum elevation allowed by appropriate governmental regulations, but no more than twenty (20) additional feet. 4. Each Owner agrees that it will in the future grant to the other party easements for underground utilities at such locations as may reasonably be required for utility purposes. Each Owner agrees that they will not unreasonably withhold their consent to and negotiate in good faith to allow the relocation, adjushnent or change in configuration of the easements hereby granted so as to facilitate the development of Lots 1, 2 or 3 in the future. 5. Playground hereby grants to CESCO for the benefit of Lot 1 a permanent, non- exclusive sewer easement over and across Lots 2 and 3 under the following terms and conditions: a. The easement shall be at the approximate location shown on Exhibit "A" and which location is intended to reflect the approximate location of an existing underground sewer line and the location of the easement leading from the termination of the existing sewer line to the westerly boundary of Lot 1. EASEMENT AGREEMENT -Page 3 MM&.C 1571.03 06/03/96 • b. The owner of Lot 1, if it desires to utilize the easement herein granted, shall, at its expense, extend the existing sewer line to the westerly boundary of Lot 1. c. The owner of Lots 2 or 3 may, if it is necessary or convenient for the development of Lots 2 or 3, relocate the sewer easement and the existing sewer line across Lots 2 or 3 to a reasonably convenient location. All costs of such relocation shall be paid by the owner of the Lot relocating such sewer line, and such owner shall provide a survey description of the relocated easement as it crosses such Lot or Lots. All work in connection with such relocation shall be conducted so as to not cause an interniption in sewer service to Lot 1. d. The sewer line may be used for one (1) user on Lot 1, one (1) user on Lot 2, and one (1) user on Lot 3, unless the approval of the City of Meridian is obtained to allow use by more than one (1) user on either of said Lots. The Owner of each Lot shall pay for sewer services required by the City of Meridian. e. In the event any Owner desires to increase the size of the existing sewer line, then the Owner requesting the increase shall provide written notice at least thirty (30) days in advance to each Owner and may increase the sewer line at its sole cost and expense. In increasing the size of such sewer line, the Owner performing such work shall not interrupt service to the remaining Lots. f. Any Owner utilizing the easement or the sewer line shall be responsible for damage caused by such party. Any person performing work under the easement herein granted shall repair all damage to surface improvements caused by such work. In the event maintenance or replacement of the sewer line is required due to causes other than the fault or neglect of any Owner utilizing such sewer line under the terms of this easement, such maintenance or replacement costs shall be borne equally by each Owner utilizing such sewer line. 6. The Ada County Highway District has indicated it may allow only one (1) entry way from Overland Road onto Lots 1 and 2. At the present time, such entry way is located on Lot 2. The parties agree that they will use their best efforts to obtain a separate and second entry way onto Lot 1 and the Owners of Lots 2 and 3 shall not object to or attempt to restrict or prevent the development of a new separate entry onto Lot 1. In the event an entry way EASEMENT AGREEMENT -Page 4 MM&C 1571.03 06/03/96 cannot be obtained into Lot 1, then the Owners agree that the existing entryway onto Lot 2 may be relocated onto Lot 1, and the Owner of Lot 1 shall provide an easement for a suitable drive from the entryway to a location designated by Playground on the boundary between Lots 1 and 2, which location shall be within one hundred feet (100') of Overland Road. The cost of improving the entryway onto Lot 1 and of removing the existing entryway on Lot 2 shall be paid by the Owner of Lot 1; the cost of extending the drive from the new entryway to Lot 2 shall be paid by the Owner of Lot 2. 7. As used in this Agreement, maintenance costs shall include taxes reasonably allocable to the area covered by the easement, including any taxes imposed on the area covered by the easements hereby granted. 8. Nothing contained herein shall be deemed a gift or dedication of any portion of Lots 1, 2 or 3 to the general public or any public purpose. 9. Exhibit "A" generally depicts the drive entry, parking lot, sewer and sign pylon located on Lots 2 and 3. The location shown on Exhibit "A" is approximate and is intended to identify such facilities, but the easements granted by this Agreement are intended to be easements to use such drive, parking, sewer and sign facilities at their existing location and, in the event of any inconsistency between Exhibit "A" and the physical location of such facilities, the physical location of such facilities shall control. 10. No breach of this Agreement shall entitle the owner of any Lot to terminate the easements herein granted, except that an Owner who has failed to pay its respective share of the costs of maintaining and operating easements granted herein may not utilize such easements until such charges are paid. 11. In the event either party is required to initiate or defend litigation with respect to the teens of this Agreement, the prevailing party in such litigation shall be entitled, in addition to any other relief that may be granted, to reasonable attorney's fees and other costs incurred in connection with such litigation. EASEMENT AGREEMENT -Page 5 MM&C 1571.03 06/03/96 EXECUTED by the parties the day and year first above-written. PLAYGROUND: The Playground, Inc. , an Idaho corporation By: Sue C ke Its: President CESCO: Contractor's Equipment Supply Company, Inc., an Idaho corporation By: Mar field Its: President (1571.03\ea\esmtagmt STATE OF IDAHO ) )ss. County of Ada ) On this 3rd day of June, 1996, before me, the undersigned, a Notary Public in and for said state, personally appeared Sue Clarke, known or identified to me to be the President of The Playground, Inc., the corporation that executed the instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation 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. ~. ~RANk .~ ~.• ~ •.......• 1 ., ~`;.•' ••;i' ••NOT Y PUBLIC for Idaho SOT AR Y •; * ~tesiding at ~5 ~~ i-e ~ t -•~ ley commission expires: G •. T '••....••' .• ••., OF ~. •4nee~~•~ ~ ~ -s-S d' EASEMENT AGREEMENT -Page 6 MM&.C 1571.03 06/03/96 ! ~- STATE OF IDAHO ) )ss. County of Ada ) On this 3rd day of June, 1996, before me, the undersigned, a Notary Public in and for said state, personally appeared Mark Canfield, known or identified to me to be the President of Contractor's Equipment Supply Company, Inc., the corporation that executed the instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. IN V~-~ITIVFSS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above-written. vo° ~~~N~~~~~~ if ••.• s~ ~, ~ • ~~~~ ~~ ~CTA~jy *• • -•- - G ~'UBL1 T ~ . ~ ~ `~, ••••'~ TF O F I --•` ~~~ OT Y PUBLIC for Idaho Residing at /3 asp My commission expires: Lo -f-Q ~ EASEMENT AGREEMENT -Page 7 MM&C 1571.03 06/03/96