HomeMy WebLinkAbout~Master - Access Easement and Use Restriction Pertaining to South Duff Avenue Instrument N: 2017-03504
04/19/2017 09:07:24 AM Total Pages: 16
EASE EASEMENTS
Recording Fee: gg 82.00
Stacie Herridge, Recorder, Story County Iowa
mill K ric AIR VAU 14FIV �4C101 11111
DO NOT WRITE IN THE SPACE ABOVE THIS LINE;RESERVED FOR RECORDER
Prepared by: Judy K.Parks,Ames City Attorney,515 Clark Ave.,Ames,IA 50010;515-239-5146
Return to: Ames City Clerk,Ames City Hall,P.O.Box 811,Ames,IA 50010
ACCESS EASEMENT AND USE RESTRICTION
PERTAINING TO THE LAND AT SOUTH DUFF AVENUE
This Access Easement is dated Hank a� , 2017 and is made by and among Amerco Real
Estate Company, a Nevada corporation ("Amerco'), Wal-Mart Stores, Inc., a Delaware
corporation ("Wal-Mart"), Boston Commons of Ames, LLC, an Iowa limited liability company
("Boston Commons") and 13th Street Ames, LLC, an Iowa limited liability company ("13th
Street").
Amerco is the titleholder of the real property legally described on Exhibit A (the "Amerco
Parcel") and desires to grant a non-exclusive easement across a portion of the Amerco Parcel
legally described on Exhibit B (the "Amerco Easement Area").
Wal-Mart is the titleholder of the real property legally described on Exhibit C (the "Wal-
Mart Parcel") and desires to grant a non-exclusive easement across a portion of the Wal-Mart
Parcel legally described on Exhibit D (the "Wal-Mart Easement Area"). .
Boston Commons is the titleholder to the real property legally described on Exhibit E (the
"Boston Parcel").
13th Street is the titleholder to the real property legally described on Exhibit F (the "13th
Street Parcel").
13th Street, Boston Commons, Wal-Mart, and Amerco are referred to individually as a
"Party" and collectively as the "Parties".
Grant of Easements.
Amerco and Wal-Mart, as grantors, do hereby grant and convey to the other Parties hereto and the
City of Ames, Iowa (the "City"), a perpetual non-exclusive access easement for the passage of
vehicles and pedestrians upon, over and across the relevant Easement Area owned by each such
grantor, each for the purpose of granting the grantees and their invitees, tenants, agents, and
contractors, and the general public, including invitees to each parcel that is connected to each such
Easement Area, vehicular ingress to and egress between their relevant Parcel and the adjacent
public right-of-way known as South Duff Avenue. The Easement Areas are depicted on the
attached Exhibit G.
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Terms and Conditions. The foregoing rights granted by each of the Parties hereto (each referred to
herein as"Grantor"with respect to the Easement Area it may own) shall be accepted and exercised
by the other Parties hero subject to the following terms and conditions:
1. Obstructions Prohibited. Grantor, as the fee simple owner of the burdened property,
and Grantor's successors and assigns, shall not erect or place within the Easement Area
any building or other structure or improvement or any trees, shrubs or other obstruction
of any kind except with the prior written consent of the other Parties hereto. Grantor
may relocate the Easement Area to other portions of its property provided Grantor does
not permanently eliminate the access provided by this Easement.
2. Nonexclusive Easement. The easement rights granted under this Easement are
nonexclusive. The instrument shall not preclude the Grantor from granting similar
easement rights to third parties upon terms and conditions that do not impair or
diminish the rights granted under this Easement. Nothing contained herein shall be
construed to grant any parking easements, privileges or rights.
3. Easement Running with the Land. This Easement shall run with the land and shall inure
to the benefit of and be binding upon the Parties hereto, and their respective heirs,
successors, and assigns, including without limitation, subsequent purchasers. Any
agreement to terminate or modify this Easement shall be subject to the written approval
of the other Parties, which consent shall not be unreasonably withheld, conditioned or
delayed.
4. Maintenance. Each Grantor agrees to maintain the Easement Area on its respective
property in a reasonable manner at its sole expense subject to damage caused by the
acts of the other parties and/or their invitees. Each Grantor shall use commercially
reasonable efforts to keep the Easement Area on its respective property free and clear
of all accumulations of snow, ice or weather related impediments.
5. Duty of Care. Each Grantor agrees to use due care in any use of the other's Easement
Area so as not to unreasonably disturb such Grantor's use of its property. In the event
of any damage to the Easement Area or Grantor's property by any other Party or their
invitees,the Party causing such damage agrees to repair and return such Easement Area
to its condition which existed prior to such damage, including but not limited to the
replacement of any sod, landscaping,paving or other improvements that existed within
the Easement Area prior to such damage.
6. Liability and Insurance. Each Grantor indemnifies and agrees to defend and hold
harmless the other Parties hereto from any and all liability, damage, expense, cause of
action, suits, claims, or judgments arising from injury to person or property and
occurring on the indemnifying party's tract, except to the extent caused by the
negligence or willful misconduct of the indemnified party, its tenants, agents,
employees, invitees or guests. Each party hereby forever releases, acquits, and
discharges the other and their lessees, officers, directors, partners, employees and
agents from any and all claims, damages, liabilities,judgments, costs, expenses, loss of
income, consequential and punitive damages, losses due to business interruption, loss
of services, actions and losses of actions, whether now known or unknown, fixed or
contingent, liquidated or unliquidated, arising out of, alleged to arise out of or in any
way connected with the condition of the Easement Area or the use of the Easement
Area by the party of the first part. Each Grantor shall procure and maintain in full force
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4820-2131-2069.1
and effect throughout the term of this Easement general public liability insurance and
property damage insurance against claims for personal injury, death or property
damage occurring upon, in or about its property, each party's insurance to afford
protection for injury or death of a single person, and to the limit of not less than
$2,000,000 for any one occurrence and to the limit of not less than $1,000,000 for
property damage. Such insurance shall not be canceled without 10 days' prior written
notice to the other party. Notwithstanding anything to the contrary contained in this
Easement, so long as the net worth of a Grantor shall exceed $100,000,000, Grantor
shall have the right to retain(in whole or in part) the financial risk for any claim.
7. Signage within Wal-Mart Easement Area. Wal-Mart expressly grants Amerco, Boston
Commons, and 13th Street the right, at their cost and expense, and subject to matters
of record, to locate, install and maintain one (1) multi-tenant sign located along South
Duff Avenue in the Wal-Mart Easement Area whose purpose is to advertise businesses
operating upon the Boston Parcel, the Amerco Parcel, and the 13th Street Parcel. Wal-
Mart must approve the location,design and content of such sign prior to any installation
thereof. The users shall maintain such sign in good order and repair at their cost and
expense. Wal-Mart may relocate such sign on the Wal-Mart Property at Wal-Mart's
sole cost and expense if needed to accommodate Wal-Mart's use and enjoyment of the
Wal-Mart Property,provided that such relocation does not diminish the visibility of the
signage from South Duff Avenue.
8. Construction. Words and phrases used in this Agreement shall be construed as in the
single or plural number, and as masculine, feminine, or neuter gender, according to the
context. The instrument shall be governed exclusively and construed in accordance
with the laws of the State of Iowa. Paragraph headings in this instrument are for
convenience only and in no way define or limit the scope or intent of any provisions of
this Agreement. This Agreement may be executed in any number of counterparts, each
of which shall be regarded as an original and all of which shall constitute but one and
the same instrument.
9. Notices. Any notice relating to this Easement shall be sent in writing to all Parties and
addressed to the owner of record as shown in the records of the Story County Assessor.
Use Restriction.
In consideration of the easement rights granted by Wal-Mart pursuant to this Easement,
each of Amerco, Boston Commons and 13th Street, on behalf of itself, its heirs successors and
assigns, covenants and agrees that no portion of the Amerco Parcel, the Boston Parcel or the 13th
Street Parcel, as the case may be, shall be conveyed to, leased to, occupied by or used via remote
operation or distribution (such as a remote internet fulfillment center or location, locker, grocery
drive-through,grocery home shopping pick-up,mail order,or similar pick-up facility)or otherwise
as a grocery store, food store, or food department containing 10,000 square feet or more of total
sales floor area(including aisles and storage) that sells food for off-premises human consumption
including, but not limited to, the sale of dry, refrigerated or frozen groceries, meat, seafood,
poultry, produce, delicatessen or bakery products, refrigerated or frozen dairy products, or any
grocery products normally used or consumed by humans off-premises and sold in such stores or
departments. Nothing herein shall be deemed to restrict or prohibit the use of any burdened real
property as a fast-food delicatessen or restaurant such as Chipotle, Domino's, Jimmy John's,
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4820-2131-2069.1
Subway or the like. The forgoing restrictions shall benefit the Wal-Mart Parcel, shall be deemed
restrictive covenants running with the land, shall be binding upon the parcels described above and
any person or third-party who may from time to time own, lease or otherwise have an interest in
such burdened parcels or any portion thereof.
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4820-2131-2069.1
IN WITNESS WHEREOF,the parties hereto have caused this Easement to be executed
effective as of the date first above written.
AMERCO REAL ESTATE COMPANY,
a Nevada corporation
By
Name er M.settles
Title smwwry
STATE OF ARIZONA
COUNTY OF MARICOPA, ss:
This instrument was acknowledged before me on Ate 2017, by
Amerco Real Estate Company,a Nevada corporation,
on behalf of the corporation.
Notary c in and for the State of Arizona
Notary Public State of Arizona
Marloopa County
Codle Church
My Commiasbn Expires 07114/2020
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4820-2131-2069.1
IN WITNESS WHEREOF, the parties hereto have caused this Easement to be executed
effective as of the date first above written.
BOSTON COMMONS 'AMES,LLC,
an Iowa limited liability company
By
Name`Ronald L.Daniels
Title Manager
STATE OF IOWA
COUNTY OF POLK
This instrument was acknowledged before me oL%7 2017,by Ronald L. Daniels ,
as Manager of Boston Commons 'Ames, LC, an Iowa limited liability company, on
behalf of the limited liability company.
Ak COURTNEY I. SCHULTZ Notary Public in and for e State of Iowa
off, Commission Number 781821
_�, my Commission Expires
/OWN December 19,2019
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4820-2131-2069.1
IN WITNESS WHEREOF, the parties hereto have caused this Easement to be executed
effective as of the date first above written.
13TH STREET LLC
an Iowa limited liability company
By 3�3S12o1r1
Name: S. Amed Merchant
Title: Member
STATE OF IOWA
COUNTY OF SVL9 I
This instrument was acknowledged before me on 31 2017, by
�. Amed e of, 13th Street LLC., an Iowa limited liability company,
on behalf of the company. �h'7jt;�
r
n�Ad�
Not Public in and for e State of
�'"`f CYNTHIA A HUGHES
COMMISSION NO. 743007
MY COMMISSION EXPIRES,
'O1M" SEPTEMBER 26,2018
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4820-2131-2069.1
IN WITNESS WHEREOF, the parties hereto have caused this Easement to be executed
effective as of the date first above written.
WAL-MART STORES,INC.,
a Delaware corporation
By
-
Name
Title Area6r 9,.sf CCshX
STATE OF ARKANSAS
COUNTY OF BENTON, ss:
Th' instrument was acknowledged before me on IWIC 2017, by
sSt of Wal-Mart Stores, Inc., a Delaware corporation, on
half of the corporation.
C� Z�0�
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IN�`�•�P�1oN�0.� F� ��i Nota y ublic in and for the State of Arkansas
V OfARy
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4820-2131-2069.1
CITY OF AMES,IOWA
By
Arm H. Campbell, Mayor
liku"
N Q13-111-�
Marie R VJoss City Clerk
3t{� z .fir
Lt gwm STATE O)ibW ,'CO}ITY OF STORY,ss:
>- tl 2017 o rd '� a Notary Public in and for the State of Iowa, personally
� before me,
AppCare An C t i be�I and Diane R.Voss,to me personally known,who,being by me duly sworn,did say that they are the
Mao and C Clexl� `espectively,of the City of Ames,Iowa;that the seal affixed to the foregoing instrument is the corporate
deal of the cooration=and that the instrument was signed and sealed on behalf of the corporation by authority of its City Council,
as-contained"i'Resolption No. 17-- /5 y adopted by the City Council on the day of f
2017, and that Ann FLA�,Campbell and Diane R Voss acknowledged the execution of the instrument to be their voluntary act and
a d
deed and the voluntary'act and deed of the corporation,by it voluntarily executed.
X.
Notary Public in and fof tfie St a of Iowa
oOV IA s Jill L. Ripperger
Commission Number 146549
* �It My Commission Expires
rowp
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EXHIBIT A
AMERCO PARCEL LEGAL DESCRIPTION
LOT 1, U-HAUL SUBDIVISION FIRST ADDITION, AMES, IOWA.
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EXHIBIT B
AMERCO EASEMENT AREA LEGAL DESCRIPTION
BEGINNING AT THE NORTHWEST CORNER OF THAT PROPERTY DESCRIBED IN
INSTRUMENT NO. 2014-00003780 OF THE STORY COUNTY, IOWA RECORDS; THENCE
SOUTH 00 DEGREES 21 MINUTES 20 SECONDS EAST, A DISTANCE OF 500.02 FEET;
THENCE NORTH 89 DEGREES 33 MINUTES 12 SECONDS WEST, A DISTANCE OF 45.59
FEET; THENCE NORTH 00 DEGREES 17 MINUTES 39 SECONDS EAST,A DISTANCE OF
442.37 FEET; THENCE SOUTH 89 DEGREES 33 MINUTES 17 SECONDS EAST, A
DISTANCE OF 17.03 FEET; THENCE NORTH 00 DEGREES 20 MINUTES 07 SECONDS
WEST, A DISTANCE OF 57.65 FEET; THENCE SOUTH 89 DEGREES 33 MINUTES 12
SECONDS EAST, A DISTANCE OF 28.07 FEET TO THE POINT OF BEGINNING,
CONTAINING 21,612 SQUARE FEET OR 0.50 ACRES, MORE OR LESS.
AND
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EXHIBIT C
WAL-MART PARCEL LEGAL DESCRIPTION
LOT 1, WAL-MART'S SUBDIVISION FIRST ADDITION, AMES, IOWA.
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EXHIBIT D
WAL-MART EASEMENT AREA LEGAL DESCRIPTION
AN ACCESS EASEMENT LOCATED IN A PART OF LOT 1, WAL-MART'S SUBDIVISION,
FIRST ADDITION,AN OFFICIAL PLAT IN THE CITY OF AMES, STORY COUNTY,IOWA,
MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE
SOUTHWEST CORNER OF THE NORTHEAST QUARTER OF SECTION 11,TOWNSHIP 83
NORTH, RANGE 24 WEST OF THE 5th P.M., CITY OF AMES, STORY COUNTY, IOWA;
THENCE, SO°22'33"E 99.26' ALONG THE WEST LINE OF THE NORTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SAID SECTION 11; THENCE, S89°23'06"E 49.98' TO THE
SOUTHWEST CORNER OF LOT 1,WAL-MART'S SUBDIVISION,FIRST ADDITION,AND
THE POINT OF BEGINNING, ALSO BEING ON THE EAST RIGHT OF WAY LINE OF
SOUTH DUFF AVENUE; THENCE, S89°23'07"E 364.50' ALONG THE SOUTH LINE OF
SAID LOT 1 AND SAID SOUTH LINE EXTENDED EASTERLY; THENCE,
SOUTHEASTERLY 7.17' ALONG A NON-TANGENT CURVE CONCAVE
SOUTHWESTERLY HAVING A RADIUS OF 15.00' AND A CHORD BEARING AND
DISTANCE OF S 14°43'27"E 7.10'; THENCE, S 1°O1'41"E 85.25' TO THE SOUTH LINE OF
SAID LOT 1; THENCE, S89°33'12"E 26.01' ALONG SAID SOUTH LINE; THENCE,
N1001'41"W 135.85'; THENCE,N89°30'38"W 380.60'; THENCE,NORTHWESTERLY 11.18'
ALONG A CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 50.00' AND A
CHORD BEARING AND DISTANCE OF N83006'14" 11.16' TO THE WEST LINE OF LOT 1,
WAL-MART'S SUBDIVISION, FIRST ADDITION, ALSO BEING THE EAST RIGHT OF
WAY LINE OF SOUTH DUFF AVENUE; THENCE, SO°22'04"E 44.20' ALONG SAID WEST
LINE TO THE POINT OF BEGINNING, CONTAINING 0.45 ACRES. SUBJECT TO
EASEMENTS AND RESTRICTIONS OF RECORD, IF ANY.
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E
EXHIBIT E
BOSTON PARCEL LEGAL DESCRIPTION
Parcel "AK" in the Northwest Quarter(NW 1/4) of the Southeast Quarter (SE 1/4) of Section
Eleven (11), Township Eighty-three (83)North, Range Twenty-four (24) West of the 5th P.M.,
Story County, Iowa, as shown on the "Plat of Survey" filed in the office of the Recorder of Story
County, Iowa, on May 15, 2008, as Inst.No. 08-05276, Slide 331, Page 2.
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EXHIBIT F
13TH STREET PARCEL LEGAL DESCRIPTION
Commencing at a point 520 Feet South of the Northwest Corner of the South 20 Acres of the South
One-half of the Northeast Quarter of Section 11, Township 83 North, Range 24 West of the 5th
P.M., Story County, Iowa, thence East 415 East, thence South 60 Feet, thence West 415 Feet,
thence North 60 Feet to the place of the beginning, subject to easements for highway purposes.
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C
a
EXHIBIT G
EASEMENT AREAS
I -
S.E.5th Street N
00
o
}
- = Exhibit C:534 S.Duff Avenue
Lott,Wal-Marts Subdivision t
ii First Addition,Ames,-Iowa ) �_
I
t al-Mar Easement Area:
t{] l=xhibit D Wal-Mart �r .
a I ...Exhibie16qDicovenue
Rsfl ' cons.
-. Exhibit E:6 S.Duff Avenue
Bostoi Commons Ames LLG
1. 1_.j
m
Exhibit A:720 S.Duff Avenue
(� t Lot 1•U•HaulSubdivision,
— -J- First Addition
Atnerco Easement Area "
111
I � I
L .. , .� :.
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