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Borton-Lakey Cross Access, Shared Parking and Drainage EasementsRecording Requested By and When Recorded Return to: BORTON-LAKEY LAW OFFICE Attn: Todd M .Lakey 141 E. Carlton Meridian, Idaho 83642 ADA COUNTY RECORDER Christopher D. Rich AMOUNT .00 12 BOISE IDAHO 12116/13 11:49 AM DEPUTY Bonnie Oberbillig III IIIIIIIIIIIIIIIIIIIIIIIIIIIIIII III RECORDED—REQUEST OF Meridian Development Corp SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY SPECIAL DECLARATION AND AGREEMENT FOR CROSS ACCESS, SHARED PARKING AND DRAINAGE EASEMENTS THIS SPECIAL DECLARATION AND AGREEMENT FOR CROSS ACCESS, SHARED PARKING AND DRAINAGE EASEMENTS Q'Special Declaration" and/or "Easement Agreement") is made and entered into this 24k— day ofJy�� , 2013, by and between the Urban Renewal Agency of the City of Meridian, also knovFn as Meridian Development Corporation, an independent public body, corporate and politic, organized pursuant to the Idaho Urban Renewal Law, title 50, chapter 20, Idaho Code, as amended, and undertaking projects under the authority of the Local Economic Development Act of 1988 as amended ("Agency" r . and the Bank of the Cascades, an Oregon State -Chartered Bank, ("BOTC"), collectively referred to as the "Parties" and each individually as a "Party". RECITALS: WHEREAS, Agency is the owner of certain real property located in Ada County, Idaho, as more fully described on Exhibit A attached hereto and incorporated herein by this reference (the "Agency Property"); WHEREAS, BOTC is the owner of certain real property located in Ada County, Idaho, as more fully described on Exhibit B attached hereto and incorporated herein by this reference (the "BOTC Property"); WHEREAS, the Agency Property and the BOTC Property shall jointly and collectively referred to herein as "Properties"; WHEREAS, Agency purchased the Agency Property from BOTC pursuant to their purchase and sale agreement dated June 10, 2009 ("PSA"); WHEREAS, in the PSA the parties agreed that Agency would at its cost pursue a're- platting of the Agency Property and the BOTC Property through the City of Meridian ("City") to reflect the division of the previous parcel and that this Special Declaration is necessary to support that re -platting process with the City; SPECIAL DECLARATION OF EASEMENTS - 1 WHEREAS, a portion of the Agency Property is used for the parking of vehicles and vehicular and pedestrian ingress, egress and access to and from the parking area and building on the Agency Property; WHEREAS, a portion of the BOTC Property is used for the parking of vehicles and vehicular and pedestrian ingress, egress and access to and from the public streets and alley, parking areas on the Properties Agency Property and the BOTC Property and the building on the BOTC Property; WHEREAS, the Parties, for the mutual benefit of their respective properties, desire to grant to one another easements for the shared non-exclusive use of the parking spaces and drives aisles located on the their respective properties for ingress, egress and parking. The Site Plan generally depicting Properties post re -platting is attached hereto as Exhibit C and incorporated herein by this reference; WHEREAS, the re -platting process with the City will create a new parcel boundary and result in a portion of the current BOTC Property located adjacent to the access on East Broadway Avenue being added to the Agency Property and being transferred by BOTC to MDC and the Parties desire and agree that said transferred property is to be included in the MDC Property for the purposes of shared parking, access and drainage as set forth in this Special Declaration; and WHEREAS, there is a curb cut and drive aisle that provide vehicular ingress, egress and access for the BOTC Property and the Agency Property to and from East Broadway Avenue and the alley connecting Main Street and Meridian Road that runs along the northern boundary of the respective Properties and BOTC desires to grant Agency an access easement in the location of this drive aisle as noted in Exhibit C. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby declare that as of the date of recording of this Special Declaration, the Properties are and shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the following easements and obligations (hereafter collectively called "Easements"). The Easements created herein shall run with the land and each estate therein and shall be binding upon all persons having or acquiring any right, title or interest in all or any part of the Properties; shall inure to the benefit of all or any part of the Properties and any interest therein; and shall inure to the benefit of and be binding upon the Parties and each of them, and each successor in interest of each of them, and may be enforced by any Party. DECLARATION: 1. Declaration of Cross Access and Shared Parking Easements. Subject to all the terms and conditions set forth in this Special Declaration, Agency, as owner of the Agency Property, and BOTC, as the owner of the BOTC Property, each as a grantor, hereby grant to each other, for the benefit of their respective Properties, a nonexclusive perpetual easement for ingress, egress and parking by vehicular and pedestrian traffic upon, over, through and across SPECIAL DECLARATION OF EASEMENTS - 2 the driveways, drive aisles and parking spaces as may be located or re -located by the respective Property owners, from time to time, upon their respective Properties for the purpose of providing for the shared non-exclusive use of their respective parking areas and drive aisles for access and parking by the Parties and their respective customers, clients, licenses, guests, invitees, employees, agents, officers and other visitors ("Shared Parking Easements"). The Parties shall have the right to modify the layout of their respective parking areas, with the exception of the Access Easement, as they deem appropriate and no Party is obligated to provide for any specific parking spaces or number of spaces for use by the other Party. Subject to all the terms and conditions set forth in this Special Declaration, BOTC, as the owner of the BOTC Property, hereby grants to Agency, for the benefit of the Agency Property, a nonexclusive perpetual easement for ingress, egress and access by vehicular and pedestrian traffic upon, over, across and through the portion of the BOTC Property more specifically described in Exhibit D which is attached hereto and incorporated by reference herein ("Access Easement"). The purpose of this Access Easement is to provide vehicular and pedestrian access, ingress and egress to and from the Agency Property and East Broadway Avenue and the alley connecting Main Street and Meridian Road adjacent to north of the Properties from time to time as needed by Agency and its customers, clients, licensees, guests, invitees, employees, agents, officers and other visitors. The Access Easement may be relocated only by written and recorded mutual agreement of the Parties which may be in the form of an amendment to this Special Declaration. Subject to the foregoing, the Shared Parking Easements and the Access Easement (collectively referred to herein as "Easements") granted herein shall be perpetual; no Party shall unreasonably obstruct the Shared Parking Easements and or the Access Easement except as may be temporarily necessary for upkeep, repair, maintenance and replacement of the improvements located in the Easements. The Parties shall reasonably cooperate in the shared use of the Easements granted herein. The Parties shall be responsible for the maintenance, repair and upkeep of their respective Properties. 2. Declaration of Incidental Drainage Easements. Subject to all the terms and conditions set forth in this Special Declaration, Agency, as owner of the Agency Property, and BOTC, as the owner of the BOTC Property, each as a grantor, hereby grant to each other, for the benefit of their respective Properties, a nonexclusive easement for incidental surface and storm water drainage on, over and across their respective Properties. The Properties abut along a common boundary line with matched paved surfacing, and the Parties acknowledge and agree that there may be, from time to time, incidental water drainage flowing back and forth across said common boundary. 3. Scope and Purposes of Easements. The Easements described above shall be provided for the limited purposes of (i) pedestrian and vehicular ingress, egress, passage, access to and traffic between the streets and alley described, and the parking of vehicles by those described herein above, as well as for the construction, use, repair, upkeep and maintenance of the easements and improvements located thereon. The Parties as owners of the Properties served by and/or subject to the Easements described herein shall be entitled to the full use and enjoyment of the Easements granted herein. No Party shall unreasonably obstruct or inconvenience the free use thereof by any other Party or said Party's customers, clients, licenses, guests, invitees, employees, agents, officers and other visitors. SPECIAL DECLARATION OF EASEMENTS - 3 4. Indemnification. Each Party shall be responsible for their own Property and the acts or occurrences that take place thereon. Each Party shall indemnify, defend, protect and hold harmless the other for, from and against any and all liabilities, claims, damages, expenses (including, without limitation, reasonable attorneys' fees and reasonable attorneys' fees on any appeal), judgments, proceedings and causes of action of any kind whatsoever which arise from any acts, occurrences or uses that take place on their respective Properties, except to the extent caused by the negligent or intentional act or omission of the other Party or the other Party's agents, employees, officers, contractors, or licensees. However, nothing in the foregoing or elsewhere in this Special Declaration is intended, nor may it be construed to increase the limits of liability of any Party as capped by the Idaho Tort Claims Act (Idaho Code § 6-901 through § 6-929), or to otherwise lessen the protections afforded any Party under said Act. This Section shall survive any termination of this Special Declaration. 5. Miscellaneous Provisions. 5.1 No Public Rights. Nothing contained herein shall, or shall be deemed to, constitute a gift or dedication of any portion of the Easements or the Properties to the general public for the benefit of the general public or for any public purpose whatsoever, it being the intention that the provisions set forth herein shall be strictly limited to and for the purposes expressed herein. Agency and BOTC shall be permitted, from time to time, to take whatever reasonable action they may deem necessary to prevent any portion of the Easements or the Properties from being dedicated or taken for public use or benefit. 5.2 Defaults; Remedies. No breach of any provision herein contained shall result in the cancellation, rescission or termination of this Special Declaration,. In the event of any violation or threatened violation by any person of this Special Declaration, Agency and/or BOTC, and no others, shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. The right of injunction shall be in addition to all other remedies set forth in this Special Declaration or provided by law. 5.3 Governing Law, Jurisdiction, and Venue. This Easement 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. 5.4 Waiver. No provision of this Special Declaration, no breach thereof and no right or remedy becoming available upon the happening of any breach can be waived, except by a written instrument dated and executed by the Party waiving same. Each waiver shall apply to the particular instance and at the particular time only, and no waiver shall be deemed a continuing one, or as applying to any other provision hereof or other prior, contemporaneous or subsequent breach or other available right or remedy. 5.5 Severability. If any provision of this Special Declaration shall be judicially determined to be invalid, illegal or unenforceable in any respect, the remaining provisions hereof shall not be affected thereby and shall continue in full force and effect. 5.6 Headings. The headings contained in this Special Declaration have been inserted for convenience only, and do not in any way define, limit, enlarge, modify or SPECIAL DECLARATION OF EASEMENTS - 4 describe the scope or intent of any provision hereof and shall not be considered when interpreting or construing the same. 5.7 Exhibits. All Exhibits referred to in this Special Declaration and attached hereto are by such reference incorporated herein. 5.8 Construction. Whenever applicable, the use of the singular or plural number shall include the other and the use of the masculine, feminine or neuter gender shall include the other genders. This Special Declaration shall be construed as a whole, in accordance with its plain meaning. Both parties agree they have had equal opportunity to review this Easement Agreement and they agree that this Easement Agreement shall not be construed more strictly against one party or the other regardless of who may have drafted the Easement Agreement or applicable portion thereof. 5.9 No Merger. There shall be no merger or extinguishment of this Special Declaration or the Easements created hereby with the fee simple estate of either property or any portion thereof or any interest therein by reason of the fact that the same person or other entity may acquire, own or hold, directly or indirectly, the entire fee simple estate of both properties. 5.10 Binding Agreement. Subject to any express provisions in this Easement Agreement, this Easement 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. 5.11 Attorney's Fees. In case suit or action is instituted in connection with this Easement Agreement, the prevailing party shall be entitled to recover from the losing party its attorney fees and costs in such suit or action, or upon appeal in such sums as the court may deem reasonable. This section shall survive and remain enforceable notwithstanding any rescission of this Easement Agreement or a determination by a court of competent jurisdiction that all or any portion of the remainder of this Easement Agreement is void, illegal, or against public policy. 5.12 Time of the Essence. Time is of the essence with respect to the obligations to be performed under this Easement Agreement. 5.13 Rights Cumulative. Except as expressly provided in this Easement Agreement, and to the extent permitted by law, any remedies described in this Easement Agreement are cumulative and not alternative to any other remedies available at law or in equity. 5.14 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 Easement Agreement shall not constitute a waiver of such term or condition. All waivers must be in writing and 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. SPECIAL DECLARATION OF EASEMENTS - 5 5.15 Modification of Special Declaration. The Easements are intended to be perpetual, and this Special Declaration shall not be modified, amended or removed without the prior written consent of all the Parties, or their successors and assigns at the time of modification. Should the need for shared access and parking as set forth in this Easement Agreement no longer exist the Parties agree to review and consider the termination of this Easement Agreement in good faith. 5.16 Entire Agreement. The Recitals set forth at the beginning of this Easement Agreement are included in and to be considered part of this Easement Agreement not just merely a recitation of facts. This Easement Agreement, together with the accompanying Exhibits, constitutes the entire agreement among the parties and supersedes all prior memoranda, correspondence, conversations and negotiations. 5.17 Storm Water Drainage and Retention Areas. The Parties agree to be responsible for the maintenance and repair of the storm water drainage and/or retention areas and easements located on their respective properties. IN WITNESS WHEREOF, the Parties have executed this Special Declaration as of the year and date first hereinabove written. est: Mfrbasa Secretary Meridian Development Corporation: Bank of the Cascades: 4C1h-T(1e4-7T4,'t'/enWi"cePresident Bank of the Cascades SPECIAL DECLARATION OF EASEMENTS - 6 STATE OF IDAHO ) ss. County of Ada ) 1. On this k ('�- day of �ecc.�c r , 2013, before me a notary public, personally appeared julia-Pipift known or identified to me to be the Chairman of the Meridian Development Corporation, tha rument and the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. 2. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. STATE OF IDAHO ) ss. County of ADA ) Notary Public for aho Residing at: hxv-' .Pc• , Idaho Commission Exp ls�reExp v - z.s - 7-u t 9 3. On this!,' day of a.k,/ , 2013, before me a notary public, personally appeared Clint Shiflet, known or identified to me to be the Senior Vice President of the Bank of the Cascades, that executed the instrument and the person who executed the instrument on behalf of said entity, and acknowledged to me that such entity executed the same. 4. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. �lip CE S�Q 7 G 6jIC y O • ADAtiO - SPECIAL DECLARATION OF EASEMENTS - 7 Notary Public for,., Residing at: Commission Expires: o� jig t'3 Exhibit A BOUNDARY DESCRIPTION FOR THE MERIDIAN DEVELOPMENT CORPORATION MDC PARCEL I A parcel located in the NW i/4 of the SW 1/4 of Section 7, Township 3 North, Range 1 Fast, Boise Meridian, and being Lots 12, through 16 of Block 2 of the AMEATI)F,D PLAT OF 7HE TOWNSITE OF MERIDIAN as shown in Book I of Plats at Page 30 in the office of the Recorder, Ada County, Idaho, more particularly described as follows: i Commencing at a brass cap monument marking the southwesterly corner of the SW '/ of said Section 7, from which a brass cap monument marking the northwesterly corner of said NW '/4 of the SW '/4 bears N 043'29" E aidistance of 2652.60 feet; Thence N 0°43'29" E along tlielwesterly boundary of said SW i/4 a distance of 2032.08 feet to a point; Thence leaving 'said westerly (boundary S 89°22'36" E a distance of 333.54 feet to the southwesterly corner of said Lotlof said Lot 12 and the POINT OF BEGINNING; Thence continuing S X89'22'3671 E along the southerly boundary of said Lots 12 through 16 a distance of 149.97 feet to a 5/8 inch diameter iron pin marking the southeasterly corner of said I.ot 16; Thence N 0°33'11 " E along the easterly boundary of said Lot 16 a distance of 60.02 feet to a 5/8 inch diameter iron pin; Thence leaving said easterly boundary N 8922'36" W a distance of 149.91 feet to a 5/8 inch diameter iron pin on the westerly boundary of said Lot 12; Thence S 036'37" W along last said westerly boundary a distance of 60.02 feet to the POINT OF BEGINNING. This parcel contains 0.21 acres and is subject to any casements existing or in use Prepared by: Glenn K. Bennett �- Civil Survey Consultants, Inc. June 18 2013 SPECIAL DECLARATION OF EASEMENTS - 8 Exhibit B BOUNDARY DESCRIPTION FOR THE MERIDIAN DEVELOPMENT CORPORATION BANK OF THE CASCADES PARCEL. A parcel located in the NW '/4 of the SW 1/4 of Section 7, Township 3 North, Range I East, Boise Meridian, and being a part of Lots l through 5 and 7 through 11 of Block 2 of the AMENDED PLAT OF THE TOWAISITF, OF MERIDIAN as shown in Book 1 of Plats at Page 30 in the office of the Recorder; Ada County, Idaho, more particularly described as follows: Commencing at a brass cap monument marking the southwesterly corner of the SW 'A, of said Section 7, from which a brass cap monument marking the northwesterly comer of said NW I/4 of the SW '/4 bears N 043'29" E a distance of 2652.60 feet; Thence N 043'29" E along the westerly boundary of said SW '/4a distance of 2032.08 feet to a point; ']Thence leaving said westerly boundary S 8922'36" E a distance of 33.60 feet to a 5/8 inch diameter iron pin marking the southwesterly comer of said Lot 1 and the POINT OF BEGINNING; Thence continuing S 8922'36" F, along the southerly boundary of said Lots 1 through 5 and 7 through I 1 a distance of 299.94 feet to a point marking the southeasterly con -ter of said Lot 11; Thence leaving said southerly N 036'37" E along the easterly boundary of said Lot I1 a distance of 118.03 feet to a point; Thence leaving said easterly boundary N 8922'54" W a distance of 299.70 feet to a 5/8 inch diameter iron pin on the westerly boundary of said Lot 1; Thence S 0°43'29" W along last said westerly boundary a distance of 118.00 feet to the POINT OF BEGINNING. This parcel contains 0.81 acres and is subject to any casements existing or in use. Prepared by: Glenn K. Bennett Civil Survey Consultants, Inc. June 18, 2013 SPECIAL DECLARATION OF EASEMENTS - 9 O»w AWO2[3I► 9WON Exhibit C JMYLS NMY H"ON ,LSOZ9h'B 34/ ,09 ZGSZ d �6ZX,o N /{g *I& 9N/XY39 50 &S6S SPECIAL DECLARATION OF EASEMENTS -10 Exhibit D BOUNDARY DESCRIPTION FOR THE MERIDIAN DEVELOPMENT CORPORATION CROSS -ACCESS EASEMENT DESCRIPTION An easement for cross -access ingress -egress purposes parcel located in the NW '/4 of the SW `/4 of Section 7, Township 3 North, Range I East, Boise Meridian, and being a part of Lots i through 10 and 11 of Block 2 of the AMENDED PLAT OF THE TOYY?YSITE OF V4F.RIDL4A% as shown in Book 1 of Plats at Page 30 in the office of the Recorder, Ada County, Idaho, more particularly described as follows: Commencing at a brass cap monument marking the southwesterly corner of the SW i/4 of said Section 7, from which a brass cap monument marking the northwesterly corner of said NW I/4 of the SW 1/4 bears N 0°43'29'' E a distance of 2652.60 feet; Thence N 0°43'29" E along the westerly boundary of said SW I/4 a distance of 2032.08 feet to a point; Thence leaving said westerly boundary S 89°22'36" E a distance of 279.90 feet to point on the northerly right-of-way Broadway Avenue and the POINT OF BEGINNING; Thence continuing S 89°22'36" E along said northerly right-of-way a distance of 28.28 feet to a point; Thence leaving said northerly right-of-way a distance of 8.10 feet along the arc of a 14.50 foot non -tangent curve right, said curve having a radius point bearing N 58°33'35" E, a central angle of 32°01'30" and a long chord bearing N 15°25'40" W a distance of 8.00 feet to a point; Thence N 0°35'05" E a distance of 17.46 feet to a point; Thence S 89°23'23" E a distance of 27.57 feet to a point on the easterly boundary of said Lot I I; Thence N 0°36'37" E along said easterly boundary a distance of 30.74 feet to a point; Thence leaving said easterly boundary N 89°23'23" W a distance of 23.45 feet to a point; Thence N 0°36'37" E a distance of 62.14 feet to a point on the southerly right-of-way of the alley for said Block 2; Thence N 89022'54" W along said southerly right-of-way a distance of 28.00 feet to a point; Thence leaving said southerly right-of-way S 0°36'37" W a distance of 110.37 feet to a point; SPECIAL DECLARATION OF EASEMENTS - 11 Cross -Access Page 2 Thence a distance of 8.06 feet along the arc of a 14.50 foot radius curve right, said curve having a central angle of 31'51'14" and a long chord bearing S 16'32514" W a distance of 7.96 feet to the POINT OF BEGINNING. This parcel contains 3,933 square feet (0.09 acres) and is subject to any other easements existing or in use. Prepared by: Glenn K. Bennett, PLS _ Civil Survey Consultants, Inc. a May 7, 2013 "082 meg+ spy /i3 � SPECIAL DECLARATION OF EASEMENTS - 12