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ALBERTSONS TURN AROUND EASEMENTRecording Requested By and When Recorded Return to: Bradley R. Beckstrom HAWLEY TROXELL ENNIS & HAWLEYp.o. Box 1617 _ 3q -Boise, Idaho 83701 6~ SPACE ABOVE THIS LINE FOR RECORDER’$ USE ONLY #164 Meridian, Idaho HTEH: 10/27/95 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (this "Agreement") is made as of_/~//~._._ ~, 1995, by and between Heartland Meridian Commercial Partners, a Minnesota limited partnership, for itself and on behalf of its successors and assigns (collectively, "Heartland"), and Albertson’s, Inc., a Delaware corporation, for itself and on behalf of its successors and assigns (collectively, "Albertson’s"), with reference to the following Recitals (Heartland and Albertson’s are sometimes referred to collectively herein as the "parties" or separately as a "party"): RECITALS: A. Heartland owns that certain parcel of real property located in the City of Meridian, County of Ada, State of Idaho, and more particularly described on Exhibit "A" attached hereto and by this reference incorporated herein (the "llcartland I’arccl"). B. Albertson’s is the current owner of a leasehold estate covering a portion of the Heartland Parcel (which portion shall be referred to herein as the "Albertson’s Leased Parcel"). Said leasehold estate was created by that certain Shopping Center Lease dated as of January 1 l, 1988, by and between Heartland, as landlord, and Albertson’s, as tenant, which Shopping Center Lease is evidenced by that certain Memorandum of the Lease recorded in the real estate records of Ada County, Idaho (the "Official Records"), on June 16, 1988, as Instrument No. 8829392; said Shopping Center Lease has been amended by (i) that certain Amendment to ShoppingCenter Lease dated as of July 29, 1988, a Memorandum of which was recorded in the Official Records on October 6, 1988, as Instrument No. 8849373, and (ii) that certain Second Amendment Shopping Center Lease dated as of July 21, 1994, a Memorandum of which was recorded in the Official Records on December 6, 1994, as Instrument No. 94106300 (said Shopping Center Lease, as amended, shall be referred t6 herein as the "Lease"). C. There exists on a portion of the Heartland Parcel an access way and truck turnaround area, which access way and truck turnaround area is used in connection with, and benefits Albertson’s business operations conducted on, the Albertson’s Leased Parcel. Accordingly, Albcrtson’s desires to obtain from Heartland a non-exclusive easement on, over and across said access way and truck turnaround area (the "Easement Area"), and" Heartland desires to grant and convey to Albertson’s said non-exclusive easement, all upon the terms and conditions ’¶.i. *’ -I-6:~Q.I[HT~OOOI]~I]8~[K~[14[HT.$TH hereinafter set forth. The Easement Area is more particularly described on Exhibit "B" attached hereto and by this reference incorporated herein, and is depicted on the diagram attached hereto as Exhibit "C". NOW, THEREFORE, in consideration of the foregoing Recitals, the covenants hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Heartland and Albertson’s hereby agree as follows: 1. Heartland hereby grants and conveys to Albertson’s (and its successors and assigns) a non-exclusive easement on, over, across and along the Easement Area for the purpose of vehicular and pedestrian access and ingress to and egress from Albertson’s Leased Parcel by Albertson’s and its successors, assigns, tenants, subtenants, guests, employees, invitees and members of the public doing business with any of the same. Notwithstanding anything to the contrary contained in this Agreement, the parties hereto acknowledge and agree (for themselves and on behalf of their successors and assigns) that Albertson’s may, upon thirty (30) days prior written notice to Heartland (or its successors or assigns, as applicable), unilaterally terminate Albertson’s rights and obligations under this Agreement. A writing which evidences any such unilateral termination shall be recorded by Albertson’s in the Official Records. 2. Nothing contained herein shall be deemed to be a gift or dedication of any portion of the Easement Area to or for the general public or for any public purpose whatsoever, it being the intention of the parties that the easement granted herein shall be strictly limited to and for the purposes herein expressed. 3. For as long as the easement rights granted to Albertson’s under Paragraph I above are effective, Albertson’s, at Albertson’s sole cost and expense, agrees to maintain the Easement Area in good repair and condition, and shall promptly repair any damage to all or any portion of the Easement Area (except to the extent of any damage which is caused by Heartland or Heartland’s tenants [other than Albertson’s], subtenants, guests, employees, invitees or members of the public doing business with any of the same, in which case the repair to the extent of such damage and the costs associated therewith shall be the sole responsibility of Heartland). 4. If either party hereto brings an action to enforce the terms and conditions of this Agreement, to restrain a violation of any term hereof or to declare its rights hereunder, the losing or defaulting party shall pay to the prevailing party its reasonable attorneys’ fees, costs and expenses incurred in connection with the prosecution or defense of such action (including any appeal of such action). For the purpose of this Agreement, the term "attorneys’ fees" or "attorneys’ fees, costs and expenses" shall mean the fees and expenses of counsel to the parties hereto, which may include printing, photostating, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals and other persons not admitted to the bar but performing services under the supervision of an attorney. 5. Heartland and Albertson’s each agree that it shall not, without the prior written consent of the other party (which consent may be withheld in such party’s absolute discretion), cause any portion of the Easement Area to be blocked, barricaded, interfered with, or rendered inaccessible in any way. Heartland shall not, without the prior written consent of Albertson’s (which consent may be withheld in Albertson’s absolute discretion), cause any portion of the Easement Area to be improved in any manner which will increase the scope or cost of Albertson’s maintenance obligation under Paragraph 3 above. Albertson’s agrees that it shall comply with all applicable laws, ordinances, regulations and rules in exercising any of the rights granted pursuant to this Agreement. 6. No restrictions or provisions herein contained shall supersede or in any way reduce or impair the security of any mortgage or deed of trust now or hereafter executed; provided, however, that should any of the property affected hereby be sold under a foreclosure of any mortgage or under tile provisions of any deed of trust (or transfer in lieu thereof), the purchaser at such sale (or other transferee) and his successors and assigns shall hold any and all property so purchased or acquired subject to all the provisions of this Agreement. 7. Should any portion of this Agreement be declared invalid and unenforceable, then such portion shall be deemed to be severed from this Agreement and shall not affect the remainder thereof. 8. Albertson’s agrees to indemnify and hold Heartland harmless from and against any and all liabilities, losses, damages, claims, actions, costs or expenses (including, without limitation, reasonable attorneys’ fees and reasonable attorneys’ fees on any appeal), for injury to or death of any person or damage to or destruction of any property arising or resulting from the use or operation of the Easement Area by Albertson’s. However, notwithstanding the preceding sentence, if lleartland (or Heartland’s successors, assigns, tenants [other than Albertson’s], subtenants, guests, employees, invitees or membcrs of the public doing business with the same) negligently or intentionally creates or causes any such liability, loss, damage, claim, action, cost or expense, Heartland shall not be so indemnified or held harmless. 9. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho. 10. The easement granted pursuant to this Agreement: (a) is appurtenant to and benefits the Albertson’s Leased Parcel; (b) burdens the portion of the Heartland Parcel affected thereby; (c) runs with the land so benefitted and burdened; (d) is non-exclusive; (e) is enforceable by Albertson’s (and its successors and assigns, as applicable) against the owners from time time of the Heartland Parcel; (f) is enforceable by Heartland (and its successors and assigns, applicable) against Albertson’s (or its successors or assigns, as applicable); and (g) is granted effective during the term of the Lease, as said term may be extended or renewed. I 1. The covenants of the parties herein made shall be deemed to be covenants running with the land pursuant to applicable law, and each party hereto making any covenant herein agrees, as covenantor, that each covenant to do or refrain from doing some act with respect to the real property described herein or any portion thereof: (i) is for the benefit of the real property of the other party hereto, as the covenantee; (ii) runs with both the real property owned or leased by the covenantor and that owned or leased by the covenantee; and (iii) shall benefit, in the case of covenantee, and be binding upon, in the case of covenantor, all successive owners of the real property affected hereby and every part thereof and all persons or entities having any interest therein derived from or through any owner of the real property affected hereby. 12. This Agreement contains the entire agreement between the parties relating to the rights herein granted and obligations herein created. Any oral representations or modifications concerning this Agreement shall bc of n. lbrce and effect, and this Agreement may not be amended or modified except by a subsequent writing signed by the parties to be bound thereby. 13. The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. When required by the context, whenever the singular number is used in this Agreement, the same shall include the plural, and the plural shall include the singular, the masculine gender shall include the feminine and neuter genders, and vice versa. The terms "hereof," "hereto," "hereunder," hereby" and similar terms refer to the Agreement generally, rather than to the specific section or subsection in which such term is used. The term "party" means a signatory hereto or any successor, assign or successor-in-interest to such signatory. No failure of any party to exercise any right or power given such party hereunder or to insist upon strict compliance by another party with its obligations hereunder shall constitute a waiver of any party’s right to demand strict compliance with the terms of this Agreement. 14. (a) All notices given pursuant to this Agreement shall be in writing and shall be given by personal delivery, by United States mail or by United States express mail or other established express delivery service (such as Federal Express), postage ordelivery charge prepaid, return receipt requested, addressed to the person and address designated below or, in the absence of such designation, to the person and address shown on the then current real property tax rolls of Ada County, Idaho. All notices to Heartland or Albertson’s shall be sent to the person and address set forth below: Heartland:Heartland Meridian Commercial Partners 4802 Nicollet Avenue South Minneapolis, MN 55409 Attention: H. William Walter Albertson’s:Albertson’s, Inc. 250 Parkcenter Boulevard P.O. Box 20 Boise,-ID 83726 Attention: Legal Department The person and address to which notices are to be given may be changed at any time by any party upon written notice to the other parties. All notices given pursuant to this Agreement shall be deemed given upon receipt. (b) For the purpose of this Agreement, the term "receipt" shall mean the earlier of any of the following: (i) the date of delivery of the notice or other document to the address specified pursuant to subsection (a) above as shown on the return receipt, (ii) the date of actual receipt of the notice or other document by the person or entity specified pursuant to subsection (a) above, or (iii) in the case of refusal to accept delivery or inability to deliver the notice other document, the earlier of (A) the date of the attempted delivery or refusal to accept delivery, (B) the date of tile postmark on tile return receipt, or (C) tile date of receipt of notice of refusal or notice of nondelivery by the sending party. 15. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted or construed to create, a joint venture, partnership, or any other similar relationship between the parties. 16. This Agreement is not intended to create, nor shall it be in any way interpreted or construed to create, any third party beneficiary rights in any person not a party hereto unless otherwise expressly provided herein. 17.This Agreement shall be recorded in the Official Records. 18. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature and acknowledgement pages of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) or acknowledgment thereon provided such signature and acknowledgment pages are attached to any other counterpart identical thereto except having additional signature and acknowledgment pages attached thereto. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Agreement as of the date first above written. HEARTLAND:ALBERTSON’S: Heartland Meridian Commercial Partners, a Minnesota limited partnership By:Heartland Realty Investors, Inc., a Minnesota corporation, its general partner By: I’-~(./-A/b" il. William Walter President Albertson’s, Inc., a Delaware corporation William H. Arnold Vice President, Real Estate Law STATE OF /~ c ~ ~ ~ ~" r,,4 ) ) SS. County of l~. ,,2 ,,a£7~,’3 ) On this /../41~ day of b~.c,~.~’~/3&-R--- , 1995, before me, l("AI.4L.’,/t__ -.TU,4-~ 0 L-b(2¢,l the undersigned, a Notary Public in and for said State, personally appeared H. William Walter, known or identified to me to be the President of Heartland Realty Investors, Inc., a General Partner of Heartland Meridian Commercial Partners, who caused Heartland Realty Investors, Inc., to subscribe said partnership name to the foregoing instrument, and acknowledged to me that Heartland Realty Investors, Inc., executed the sanle as the general partner of and in said partnership name. IN WITNESS WIIEREOF, I have hereunto set my hand and affixed nay official seal the day and year in this certificate first above written. ,,, corn,,,,,,"Notary Public for4daho M. t~ ~,o7-.4 My commission expires 1!.3i STATE OF IDAHO ) ) SS. County of Ada ) On this ~ day of -,~gt,’,e,4~Lg~, 1995, before me,,--/77e be,vAz/3 , a Notary Public in and for said State, personally appeared William H. Arnold, known to me to be Vice President, Real Estate Law of Albertson’s, Inc., the corporation that executed the within instrument or the person who executed the instrument on behalf of said corporation, and acknowledged to me that such corporation executed the same. WITNESS MY HAND and official seal hereto affixed the day, month and year in this certificate first above written. ¯ . ~~ -!~ t.,.. ~..: ..,-,, r" . No(fu’y Pubhc for Idaho : ........:C. ~ ~¯Residing at - ¯ .",.¯ ;My commission expires .~ - d/.. ,p,i. i "1%"¯,,. ,’,.- ,.... .f ~.". ,~.. . ~. ¢." .~. ".’.-.’...... i..,,..~’ EXHIBIT "A" LEGAL DESCRIPTION OF HEARTLAND PARCEL A portion of Lot 7, Section 6, Township 3 North, Range I East, Boise Meridian, Ada County, Idaho, more particularly described by metes and bounds as follows: Commencing at the Southeast comer of the SW ¼ of Section 6, T3N., R1E., B.M.; and running S. 88 degrees 01’ 10" W. 1699.50 feet (formerly described as west 1699.5 feet) along the Southerly boundary of said Section 6 to the TRUE POINT OF BEGINNING; thence continuing S. 88 degrees 01’ 10" W. 705.14 feet (formerly described as West 698.94 feet) along said Southerly boundary of Section 6 to the Southwest comer of said Section 6; thence N. 0 degrees 16’20" W. 623.04 feet (formerly described as North 633.22 feet) along the Westerly boundary of said Section 6 to a point; thence N. 88 degrees 01’10" E. 705.41 feet (formerly described as East 698.94 feet) along a line parallel to and 622.76 feet at right angles and Northerly from the said Southerly boundary of Scction 6 to a point; thence S. 0 degrees 14’50" E. 623.05 feet (formerly described as South 623.22 feet) along a line parallel to and 1,698.72 feet at right angles and Westerly from the Easterly boundary of the said SW ¼ of Section 6 to the Point of Beginning. EXCEPT that portion lying within right-of-way for Meridian Road and U.S. Highway No. 30 (Fairview Ave./Cherry Lane). ALSO EXCEPT that portion deeded to Ada County Highway District by Deed recorded December 23, 1976, as Instrument No. 7734815, Records of Ada County, Idaho. A portion of Lot 7, Section 6, Township 3 North, Range 1 E., Boise Meridian, Ada County,, Idaho, more particularly described by metes and bounds as follows: Commencing at the Southeast Comer of the Southwest quarter of Section 6, T3N, R1E, B.M., and running S. 88 degrees 01’ 10" W., 1699.50 feet along the Southerly boundary of said Section 6; thence continuing S. 88 degrees 01’10" W., 391.14 feet; thence N. I degree 58’50" W., 20.00 feet to the REAL POINT OF BEGINNING. Thence N. 1 degee 58’50" W., 130.00 feet; thence S. 88 degrees 01’10" W., 90.00 feet; thence S. 1 degree 58’50" E., 130.00 feet; thence N. 88 degrees 01’10" E., 90.00 feet to the REAL POINT OF BEGINNING. Said parcel containing 0.27 acres, more or less. File No. B94-2&992 A portion of Section 6, Township 3 North, Range I East, Boise Meridian, Ada County, Idaho and more particularly described as follows: Beginning at the Southwest corner of said Section 6; thence North 00o01,30 ’’ West 623.00 feet alon S the Westerly boundary of said Section 6 to a point; thence North 88o16’00 ,, East 276.68 feet to an iron pin on the centerline of a ditch, the REAL POINT OF BEGINNING; thence North 16o01’02 ’’ East 62.69 feet along the centerline of a ditch to an iron pin; thence North 00o39’02 ’’ East 49.13 feet along the center line of a ditch to an iron pin; thence along a curve to the left 44.33 feet to an iron pin, said curve having a central angle of 74o18’32 ’’, a tangent of 25.~0 feet and a !on~ chord of 41.28 fee5 bearin~ North 36°30’14 ’’ West; thence North 37o53’00 ’’ East 239.13 f__-==~ to a pcint on the approximate_. centeriine of ~i--_~= Mi!~_ Drain; thence South._c9°=0’2~,,~ East 791.25 fe_~= along the a~proximate centerline of Five Mile Drain to a point; ~hence South 6~°16’46 ,, East 91.22 f=~t along the approximate centerline of Five Mile --~Dcin~;D_=_.: tO a .thence South 88o16’00 ’’ West 209.00 feet to an iron pin; thence South S8°!6’00 ,’ West 218.00 f__t=~ to an iron pin; thence North 00001’30 ’’ West 210.61 feet to a point; thence South 8So!6’00 ,, "~ ~ 42 . 9 feet POINT_.W_s~ 6 8 to the OF BEGI~’ING EXCEPTZNG THEP~FROM riGhts-of-way for roads, ditches, drains, canals and lazerals. EXHIBIT "B" Legal Description of Easement Area Quadrant Consulting, Inc. A tract of land described for a parking and vehicle turnaround agreement located in a portion of the Southwest 1/4 of Section 6, Township 3 North. Range l East, Boise Meridian, Ada County, Idaho more particularly described as follows: Beginning at the Southwest comer of said Section 6; thence North 00° 01’ 30" West 623.00 feet along the westerly boundary of said Section 6 to a point; thence North 88° 16’ 00" East 276.68 feet to a point on the centerline of a ditch, said point also being"the southwest comer of a parcel of land described in a warz, anty deed duly filed for record in the Ada County. Recorders Office as Instrument # 9a030123; thence continuing along the southerly boundary of said Warranty Deed parcel North 88° 16’ 00’" East 30.00 feet to the POINT OF BEGI~’ING; thence leaving said southerly boundary North 11° 10’ 50" East 129.00 feet to a point; thence North 88 16’ 00" East 158.62 feet to a point; thence South 16° Ol’ 02" East 129.75 feet to a point on said southerly boundary,; thence along said southerly boundary South 88 16’ 00" West 219.46 feet to the POINT OF BEGINNING. Said tract of land contains 0.55 acres more or less. This property description has been composed using information of record only; no actual field survey has been performed. o.." /o-z-q5 405 S. 8lh Street. Ste. 29.5 ¯ -=c se. O .~3702 ¯ Phcne (i’~8) 3"2-C091 ¯ Fox (208) 342-CC’92 ¯ Internet: qucdront©micron.net Civil Engineering ¯ Surveying ¯ Constr,.;ction Monogement ¯ ¯623.00" EYJ[IB IT "C" Diagram of Easement Area o° / ,° .°, / I" l .; ~’°~°°"°. .......°o°° o’°.%% i "°%% °" % %% % %" % %%°*°°°%°%% % o. % .55 ,* .° °. .- .,o° wJutR~n* 0(’£0 rHST. /lP~OJO 12J ., ., ,. o, ,, t.* o- /_ GRAPHIC SCALE 100 I 200 ( IN FEET ! inch = 100 ft. fl u ACTION ROUTING SLIP ATTORNEY: BRAD BECKSTROH HT ROUTE DATE: 01/17/96 ******************************************************************************************* STORE: 164 MERIDIAN OUTSIDE PARTY: HEARTLAND MERIDIAN COMNERICAL PARTNERS DOCUMENT DATE: 12/04/1995 DOCUMENT NAME: EASEMENT AGREEMENT RE: TRUCK TURNAROUND 1ST ACTION DATE ~////~/ ACTION CODE # REFERENCE REASON 2ND ACTION DATE 1// ACTION CODE # REFERENCE REASON 3RD ACTION DATE ~//ACTION CODE # ~REFERENCE REASON 4TH ACTION DATE ~11 ACTION CODE # ~REFERENCE REASON ADDITIONAL ACTION DATES LISTED ON BACK []YES [ ~ NO ADVICE SHEET ATTACHED ~NOT NEEDED REAL ESTATE AGREEHENT COPIES SENT TO: Consotidated Property Hanagement X Desfgn & Construction Division Rear Estate Personnet Maintenance Special ~st Property Accounting CAHA Frank Nugu~ ra Barb Ettis R i sk Management Tax Department ROUTE SLIP Prepared by: ~,~’~ Date: .~_.~ l~_~l ~; APPROVED BY: Legat / Rear Estate~k~-~ Date: ~l~__/l__~l~_~ / Date: "~l/~l~/~ BRENDAGUNTHER BARCODE:1518835 RO~FOR REV,EW AND APPROVAL:Vice President / Director, Real Estate~Executive VoP., Store Development Vic~ President / Real Estate Law ,~ ~-~ Corporate Signature Attestation / Seal Acknowledgment Witness Witness 40-1074 4/95 ALBERTSONS PRINTING & SUPPLY- BOISE //-o~’ DATE ROUTED: ~/-- ~-~ DEPARTMENT APPROVAL: Legal: Real Estate: COPIES SIGNED STANDARD FORM:~ NO WILL BE RECORDED:YES DATE DOCUMENT:YES NO /