Access EasementWATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT
Tk This Water Main and Mutual Access Easement Agreement ("Agreement") is made June
!Z019 by and between Wesley M. Weast and Rajean Weast (collectively, "Grantor"), and
#476 Pioneer Exchange Accommodation Titleholder, LLC, an Idaho limited liability company
("Grantee")' -
"Grantee")', In this Agreement, Grantor and Grantee may be referred to as the "Party" or the
"Parties" as,appropriate under the circumstances.
RECITALS:
A. Grantor is the owner of that certain real property located in Ada County, Idaho, as
more fully ;described in Exhibit A, which exhibit is attached hereto and incorporated herein
("Grantor's property").
B. Contemporaneously herewith, Grantee is purchasing from Grantor that certain
real property located in Ada County, Idaho as more fully described in Exhibit B, which exhibit is
attached hereto and incorporated herein ("Grantee's Property").
C. Grantor and Grantee have agreed to establish and grant an easement for ingress
and egress over, on, across, through and under that certain area of the Grantor's Property and the
Grantee's Property as more fully described in Exhibit C, which exhibit is attached hereto and
incorporated herein ("Easement Property") for the benefit of both the Grantor's Property and the
Grantee's Property.
D. Grantor and Grantee have agreed to establish and grant an easement for
connection to and use of the water main located on a portion of the Easement Property located on
the Grantor's Property.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
1. Grant and Purpose of Access Easement.
1.1 Grantor hereby grants Grantee, for the benefit of the Grantee Property, a non-
exclusive perpetual easement over, on, across, through, and under that portion of the Easement
Property located on the Grantor's Property for ingress and egress to Grantee's Property.
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - I
1.2 Grantee hereby grants Grantor, for the benefit of the Grantor Property, a non-
exclusive perpetual easement over, on, across, through, and under that portion of the Easement
Property located on the Grantee's Property for ingress and egress to Grantor's Property.
1.3 The easements created hereby shall be used for ingress and egress by vehicular
and pedestrian traffic by Grantor and Grantee and their respective tenants, contractors,
employees, agents, licensees, customers, invitees, guests, and visitors.
1.4 Grantee may take any and all actions necessary or desirable in connection with
the construction of the driveway on the Easement Property including, but not limited to, grading,
the trimming and cutting down of vegetation, and installation of drainage, utilities and
landscaping. Prior to construction of the driveway on the Easement Property, Grantor and
Grantee shall agree in writing upon the scope and cost of such construction. Grantor and
Grantee shall equally share all costs related to the construction of such driveway. No changes
shall be made in the driveway constructed on the Easement Property without the prior written
consent of the owner of the Grantor Property and the owner of the Grantee Property.
2. Grant and Purpose of Water Main Easement.
2.1 Grantor hereby grants Grantee, for the benefit of the Grantee Property, a non-
exclusive perpetual easement over, on, across, through, and under that portion of the Easement
Property located on the Grantor's Property for (i) access and connection to, (ii the use,
maintenance, and repair of, and (iii) flow of water from the water main located on the Grantor
Property.
2.2 Connection to the water main shall be at Grantee's sole expense. Following
connection to the water main, Grantee shall return such portion of the Easement Property that
was impacted by digging to the same condition it was in prior to such digging.
2.3 The water main shall not be relocated without the prior written consent of
Grantee.
3. Maintenance. The Parties shall maintain the Easement Property at all times in good and
clean condition and repair. The Parties and their respective successors and assigns shall equally
share all costs related to the maintenance and repair of the Easement Property.
4. Easement Appurtenant. All easements granted herein shall be easements appurtenant
and not easements in gross.
5. Binding on Successors. This Agreement shall be recorded in the official records of Ada
County, Idaho. This Agreement and all easements created hereby shall be binding on the heirs,
successors, administrators, executors and assigns of Grantor and Grantee and shall run with the
land.
6. Insurance.
6.1 Grantor shall at all times maintain or cause to be maintained commercial general
liability insurance in the amount of not less than $1,000,000.00 covering (i) injury to or death of
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 2
any person or damage to any property occurring in the Grantor Property, or (ii) any claims
arising from the use of the Easement Property by Grantor or Grantor's tenants, contractors,
customers, licensees, agents, employees, guests, invitees or visitors. Upon request, Grantor
agrees to provide evidence of such insurance coverage to Grantee.
6.2 Grantee shall at all times maintain or cause to be maintained commercial general
liability insurance in the amount of not less than $1,000,000.00 covering (i) injury to or death of
any person or damage to any property occurring in the Grantee Property, or (ii) any claims
arising from the use of the Easement Property by Grantee or Grantee's tenants, contractors,
customers, licensees, agents, employees, guests, invitees or visitors. Upon request, Grantee
agrees to provide evidence of such insurance coverage to Grantor.
7. Indemnification. Each Party shall indemnify, hold harmless and defend the other Party,
and the other Party's successors, assigns, employees, and agents, from and against all liabilities,
damages, suits, obligations, fines, losses, claims, actions, judgments, penalties, charges, costs, or
expenses, including, without limitation, attorneys' and other professional fees and disbursements
(collectively, "Losses"), in conjunction with (i) any loss of life, personal injury and/or property
damage arising out of or relating to the use of the easements created by this Agreement by the
indemnifying Party or its tenants, contractors, customers, licensees, agents, employees, guests,
invitees or visitors, or any other person or entity for whom the indemnifying Party would be
liable and occurring on the Easement Property and (ii) any construction activities relating to the
easements created by this Agreement performed by or at the request of Grantor or Grantee,
unless caused by the negligent or willful act or omission of the indemnified Party or its agents or
employees.
8. Default. A Party shall be deemed to be in breach of this Agreement only upon the
expiration of fifteen (15) days from receipt of a written notice from the other Party specifying the
particulars in which such breaching Party failed to perform the obligations of this Agreement,
unless such breaching Party, prior to the expiration of such fifteen (15) days has rectified the
matters set forth in the notice of breach. However, such breaching Party shall not be deemed to
be in breach if such failure cannot be rectified within the fifteen (15) day period and such
breaching Party is using good faith and its best efforts to rectify the particulars specified in the
notice of breach.
9. Remedies. In the event of a breach hereunder by any Party, 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 Agreement, the prevailing
party shall be entitled to recover its costs incurred therein, including reasonable attorneys' fees
and disbursements.
10. Taxes and Assessments. Grantor, at its sole cost, agrees to pay prior to delinquency all
taxes and assessments levied against the Grantor Property, provided, if permitted by such taxing
authority or district, such taxes may be paid in installments. Grantee, at its sole cost, agrees to
pay prior to delinquency all taxes and assessments levied against the Grantee Property, provided,
if permitted by such taxing authority or district, such taxes may be paid in installments.
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 3
11. No Aen. Grantee shall not cause any lien to attach against Grantor's Property or the
Easement F roperty as a result of services performed or materials furnished to Grantee. Grantor
shall not ca ise any lien to attach against Grantee's Property or the Easement Property as a result
of services erformed or materials furnished to Grantor. If any such lien is recorded, the Party
causing suc lien to be so recorded agrees to cause such lien to be discharged within fifteen (15)
days folio ing notice from the other Party. The Party causing such lien agrees to indemnify,
hold harml ss and defend the other Party and its property from and against all Losses arising out
of or resulti g from such lien.
12. Entire Agreement. This Agreement contains the entire agreement between the Parties
hereto and upersedes all prior agreements, oral or written, with respect to the subject matter
hereof. The recitals contained herein and all exhibits attached to this Agreement are
incorporated into this Agreement by reference and made a part hereof. No change or addition
may be ma e to this Agreement except by a written agreement executed by the Parties. The
Parties, and each of them, acknowledge, declare and agree, that they are entering into this
Agreement voluntarily, having had the opportunity to or having been previously advised by the
counsel of His or her choice as to the form, content and legal effect of this Agreement. Each
Party declar s, agrees and represents to the other that it is entering into this Agreement of his or
her own free will, without duress or coercion. The provisions of this Agreement shall be
construed as a whole and not strictly for or against any Party.
13. Easement Obstructions. No barriers, fences, walls, grade changes or other obstructions
shall be erected so as to impede or interfere in any way with the free flow of vehicular and
pedestrian traffic, or in any manner unreasonably restrict or interfere with the use and enjoyment
of the rights and easements created by this Agreement; provided, however, that the foregoing
shall not pr hibit 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 improvements on the Easement Property, Grantor Property or Grantee Property,
it being agreed by the Parties however, that all such work shall be conducted in the most
expeditious nanner reasonably possible to minimize the interference with the use of the
easements cr ated by this Agreement and such work shall be diligently prosecuted to completion.
14. Notices. All notices given pursuant to this Agreement shall be in writing and shall be
given by pej sonal delivery, by United States registered or certified mail, or by United States
express mail or other established express delivery service (such as Federal Express), postage or
delivery ch ge prepaid, return receipt requested, addressed to the appropriate Party at the
address set orth below. 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 Party. All notices given
pursuant to this Agreement shall be deemed given upon receipt. For the purpose of this
Agreement, the term "receipt" shall mean the earlier of any of the following: (a) the date of
delivery of tie notice or other document to the address specified pursuant to this section as
shown on th return receipt; (b) the date of actual receipt of the notice or other document by the
person or ent'ty specified pursuant to this section; or (c) in the case of refusal to accept delivery
or inability t deliver the notice or other document, the earlier of. (i) the date of the attempted fu
delivery or r sal to accept delivery; (ii) the date of the postmark on the return receipt; or (iii)
the date of re eipt of notice of refusal or notice of nondelivery by the sending Party.
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 4
Gra itee: #476 Pioneer Exchange Accommodation Titleholder, LLC
1211 W. Myrtle Street, Suite 100
Boise, Idaho 83702
Gra tor: Wesley M. Weast and Rajean Weast
P.O. Box 335
Kuna, Idaho 83634
15. Not la Public Way. Nothing herein contained shall be deemed to be a gift or dedication
of any portion of the Easement Property to the general public or for the general public or for any
public purpose whatsoever, it being the intention of the Parties that this Agreement shall be
strictly limited to and for the purposes herein expressed. Furthermore, no use hereunder shall be
deemed to constitute the easements created by this Agreement as a public way or a quasi -public
way, but to the contrary the easements created by this Agreement shall constitute and remain a
private way and drive.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
the day and year first written above.
GRANTEE:
#476 Pioneer Exchange Accommodation
Titleholder, LLC,
an Idaho Limited Liability Company
By: Pioneer 1031 Company, Member
By: Bobbie Crooks , its: Assistant Secretary
Steve Burak and Nadine Burak have read, understand, approve and agree to the foregoing Water
Main and Mutual Access Easement Agreement.
Nadine Burak
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 5
STATE OF IDAHO )
ss.
County of )
On this day of , 2019, before me, a Notary Public in and for said
State, personally appeared Wesley M. Weast and Rajean Weast, known or identified to me to be
the persons whose names are 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.
NOTARY PUBLIC FOR IDAHO
Residing at
My Commission Expires
STATE OF IDAHO )
ss.
County of )
On this day of , 2019, before me, a Notary Public in and for said
State, personally appeared Bobbie Crooks, known or identified to me to be the Assistant
Secretary of Pioneer 1031 Company an Idaho corporation, a member of #476 Pioneer Exchange
Accommodation Titleholder, LLC, a limited liability company, the member or one of the
members who subscribed said limited liability company name to the foregoing instrument, and
acknowledged to me that such corporation executed the same in said limited liability company
name.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
NOTARY PUBLIC FOR IDAHO
Residing at
My Commission Expires
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 6
STATE OF IDAHO )
ss.
County of )
On this day of , 2019, before me, a Notary Public in and for said
State, personally appeared Steve Burak and Nadine Burak, known or identified to me to be the
persons whose names are subscribed to the within instrument, and acknowledged to me that they
executed the same.
IN
day and yf
JTNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
in this certificate first above written.
NOTARY PUBLIC FOR IDAHO
Residing at
My Commission Expires
WATER MAID AND MUTUAL ACCESS EASEMENT AGREEMENT - 7
EXHIBIT A
(Grantor's
Property)
M<9,54on
Professional Engineers, Land Surveyors and Planners
�y
826 3i° St. So. Nampa, ID 83651
As s o G i a to s in c. Ph (208) 454-0256 Fax (208) 454-0979
e-mail: dholzhPY@mseng.us
FOR: Wesley Weast
JOB NO.: SE0817
DATE: September 29, 2017
PARCEL 1
A parcel of land being a portion of Lots 11, 12, & 13 of the Amended Plat of Bowns Second Addition to
Meridian in the SEl/4 SW1/4 of Section 7, Township 3 North, Range 1 East, Boise Meridian, Ada
County Idaho, more particularly described as follows:
Commencing at the southeast corner of the SEl/4 SWl/4;
Thence S 89' 46' 06" W a distance of 678.49 feet along the south boundary of the SE1/4 SWl/4;
Thence N 00' 56' 47" E a distance of 45.01 feet to a point on the northerly right of way of Franklin
Road;
Thence S'890 46' 06" W a distance of 180.27 feet (formerly 180.20 feet) along the northerly right of
way of Franklin Road to the POINT OF BEGINNING;
Thence continuing S 89° 46' 06" W a distance of 25.00 feet along the northerly right of way of Franklin
Road;
Thence N 000 51' 00" E a distance of 87.13 feet parallel with the easterly right of way of E. Third
Street;
Thence N 89' 06' 27" W a distance of 95.01 feet;
Thence N 00' 51' 00" E a distance of 109.24 feet (formerly 108.36 feet) parallel with the easterly right
of way of E. Third Street;
Thence S 89' 12' 42" E a distance of 24.00 feet along the south boundary of Lot 11;
Thence N 00' 51' 00" E a distance of 109.98 feet (formerly 110.00 feet) parallel with the easterly right
of way of E. Third Street to a point on the north boundary of Lot 11;
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WATER MAJ AND MUTUAL ACCESS EASEMENT AGREEMENT - 8
V a5o,n &
A550CJa tc5 1n
Professional Engineers, Land Surveyors and Planners
Thence S 890 12' 08" E a distance of 96,01 feet along the north boundary of Lot 11;
Thence S 000 51, 00" W a distance of 306.05 feet parallel with the easterly right of way of E. Third
Street to the POINT OF BEGINNING.
This parcel contains 25,854 Sq. Ft., more or less.
Also, this parcel is subject to all easements and rights -of -way of record or implied.
Page 2 of
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 9
EXHIBIT B
(Grantee's Property)
Parcel ID #: R1042150955
A parcel of land being a portion of Lots 11,12, & 13 of the Amended Plat of Bowns Second Addition to Meridian in the SE1/4
SW1/4 of Section 7, Township 3 North, Range 1 East, Boise Meridian, Ada County Idaho, more particularly described as
follows;
Commencing at the southeast corner of the SE114 SW1/4;
Thence S 890 46' 06' W a distance of 678.49 feet along the south boundary of the SE1/4 SW1/4;
Thence N 00° 56' 47' E a distance of 45.01 feet to a point on the northerly right of way of Franklin Road to the
POINT OF BEGINNING;
THENCE S 89" 46' 06' W a distance of 180.27 feet (formerly 180.20 feet) along the northerly right of way of Franklin Road;
Thence N 000 51, 00' E a distance of 306.05 feet parallel with the easterly right of way of E. Third Street to a point on the
north boundary of Lot 11;
Thence S 89' 12' 08' E a distance of 180.75 feet along the north boundary of Lot 11 to the northeast corner of Lot 11;
Thence S 00' 56' 47' W a distance of 302.82 feet (formerly 301.68 feet) to the POINT OF BEGINNING.
This parcel contains 54,948 Sq. Ft., more or less.
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 10
EXHIBIT C
(Easement Property)
ma. s o n
Professional Engineers, Land Surveyors and Planners
�y
924 3"' St. So. Nampa, ID 83651
Ph (208) 454-0256 Fax (208) 467-4130
antoil: tlhnlrhpy/d,�_nasonandas+oci•tks us
FOR: Steve Burak
JOB NO.: JN0019
DAIT: June 24, 2019
EXHIBT "C"
An c sement being a portion of Lot 13 of the Amended Plat of Bowns Second Addition to Meridian in
the SE1/4 SWI/4 of Section 7, Township 3 North, Range I East, Boise Meridian, Ada County Idaho,
more particularly described as follows:
Commencing at the southeast corner of the SF I/4 SW 1/4;
Thence S 89' 46' 06" W a distance of 678.49 feet along the south boundary of the SEIA SWI/4;
Thence N 001 56' 47" E a distance of 45.01 feet to a point on the northerly right of way of Franklin
Road;
Thcnec S 89° 46' 06" W a distance of 155.26 feet along the northerly right of way of Franklin Road to
the POINT OF BEGINNING of said casement;
Thence continuing S 89' 46' 06" W a distance of 50.01 feet along the northerly right of way of Franklin
Road;
Thence N 001 51' 00" E a distance of 60.00 feet parallel with the easterly right of way of E. Third
Street;
"Thence N 89' 46' 06" E a distance of 50.01 feet parallel with the northerly right of way of Franklin
Road;
Thence S 001 51' 00" W a distance of 60.00 feet parallel with the easterly right of way of E. Third Street
to the 'OINT OF BEGINNING of said casement.
L LA
t3 6 6 o
�ssociatc s 1, ���C tt'�6` /I
Professional Engineers, Land Surveyors and Planners
Page I or I
WATER MAIN AND MUTUAL ACCESS EASEMENT AGREEMENT - 11