HomeMy WebLinkAboutA005 - Declaration of Reciprocal Easement and Covenant Agreement dated December 15, 2015 Instrument: -2015 000123E0
Date:Dec 29,2015 09:18:31A
D Rec Fee: 40,00 E-Com Fee:
Aud Fee: •"'}
.00 Trans Tax:
Return t°'. ernes Inc Rec M011a9ement Fee: 1,00
Haverkamp Prop Hon-Standard Fa9e Fee: ,00
Filed for record in Story County, Iona
Will Call Stacie L. Herrid9e, County Recorder
Prepared by
and return to: B J Miller Davis Brown Law Firm 4201 Westown Parkway#300 West Des Moines,IA 50266(515)288-2500
DECLARATION OF RECIPROCAL EASEMENT AND COVENANT AGREEMENT
This Declaration of Reciprocal Easement and Covenant Agreement
("Agreement") is made and entered into this f 54-41 day of December, 2015 (the
"Effective Date")by 616 Billy Sunday Road, L.C., an Iowa limited liability company
("Declarant").
RECITALS
A. Declarant holds fee simple title to certain real property located in the City of
Ames, Iowa which is described in Exhibit A attached hereto and by this reference
incorporated herein (the "Real Estate"). (ej.•7)
B. Declarant desires to protect the value and desirability of the Real Estate.
C. Declarant desires to declare and establish certain easements, and establish certain
rights, duties, obligations and responsibilities for the Owners of the Lots, with
respect thereto
NOW, THEREFORE, Declarant hereby declares that all the property described
above shall be held, sold and conveyed subject to the following reciprocal easements and
conditions which are for the purpose of protecting the value and desirability of, and
which shall run with the Real Estate, and be binding on all parties having any right, title
or interest in the Real Estate or any part thereof, their heirs, successors and assigns, and
shall inure to the benefit of each Owner thereof.
1. Utility Easements. Declarant hereby grants and conveys to the City of Ames,
Iowa, its successors and assigns, and to any private corporation, firm or person furnishing
utilities for the transmission and/or distribution of water, sanitary sewer, storm sewer,
drain tile, surface drainage, gas, electricity, communication services or cable television to
the Real Estate, perpetual non-exclusive easements for the erection, laying, building, and
maintenance of said services over, across, on and/or under the property on and over any
existing utility easements of record or as shown or noted on the Plat for Crown Point
Subdivision, City of Ames, Iowa recorded as Document # e (the"Plat").
l GJ
Declarant further declares that Lot 1 and Lot 2 shall each have a non-exclusive easement
under, over, and across each other as shown on the Plat for the purpose of connecting to
necessary utilities including water, sanitary sewer, storm sewer, drain tile, surface
drainage, gas, electricity, communication surfaces and cable television. The easement
granted in this paragraph together with the easements set forth in the immediately
preceding paragraph are referred to as the"Utility Easements". The Utility Easements
shall be located and performed such that they in no way cause interference with the
business operations of Lot 1 or Lot 2.
#2666619 v.2
2. Dumpster Easement. Declarant hereby declares that Lot 2 shall be subject to a
non-exclusive shared dumpster easement for the purpose of the Owner of Lot 1 and its
tenants or residents of the residential units thereon disposing of trash in the dumpster
located on Lot 2 in its current location or as shown or noted on the Plat(the"Dumpster
Easement") together with the reasonable right of ingress and egress from the Dumpster
Easement.
The Owner of Lot 2 shall not materially interfere with the use of the Dumpster
Easement or the ingress/egress therefrom by the Owner of Lot 1 and its tenants or
residents of residential units thereon.
3. Parking Easements. Declarant hereby declares that all parking spaces on Lot 1
and Lot 2 shall be used for the perpetual and non-exclusive benefit of Lots 1 and 2 for the
purpose of parking vehicles in those spaces by any of the Owners, employees, agents,
customers and business visitors, guests, licensees, invitees, and their tenants or residents
of residential units thereon, of the Owners of Lots 1 and 2. The Parking Easements set
forth herein shall be referred to as the"Parking Easements".
4. Ingress/Egress Easements. Declarant hereby declares that Lot 1 and Lot 2 shall
be subject to easements for purposes of ingress-egress to and from and within such Lots
and to public streets (the"Ingress/Egress Easement Area") for the perpetual and
nonexclusive right, privilege and easement for the public and for Owners of Lots 1 and 2
and their officers, tenants, employees, agents, customers and business visitors, guests,
licensees, invitees, and their tenants or residents of residential units thereon, to use the
drives as may exist or hereafter be constructed within the Ingress/Egress Easement Area,
for pedestrian and vehicular traffic as a means of ingress and egress within the
Ingress/Egress Easement Area and between the Ingress/Egress Easement Area and public
streets and rights of way. The Ingress/Egress Easement Area shall consist of all road,
drives,thoroughfares and/or streets on the Lots. Each Owner agrees to maintain
sufficient Ingress/Egress Easement Area on their respective Lots to ensure reasonable and
sufficient access to and from each of the other respective Lots.
5. Sidewalk Easements. Declarant hereby declares that Lot 1 and Lot 2 shall be
subject to easements for purposes of sidewalks and pedestrian traffic to and from and
within such Lots and to public streets (the"Sidewalk Easement Area") for the perpetual
and nonexclusive right, privilege and easement for the public and for Owners of Lots 1
and 2 and their officers, tenants, employees, agents, customers and business visitors,
guests, licensees, invitees, and their tenants or residents of residential units thereon, to
use the sidewalks as may exist or hereafter be constructed in accordance with the site
plan attached hereto as Exhibit B and within the Sidewalk Easement Area shown on the
Plat, for pedestrian traffic as a means of ingress and egress within the Sidewalk Easement
Area and between the Sidewalk Easement Area and public streets and rights of way. The
Sidewalk Easement Area shall consists of all sidewalks on the Lots. Each Owner agrees
to maintain sufficient Sidewalk Easement Area on their respective Lots to ensure
reasonable and sufficient access to and from each of the other respective Lots as shown
on the Plat.
6. Maintenance of Easement Areas. The Owners of Lots 1 and 2 shall each retain
the right and obligation to perform repairs and replacement or service of the drives,
parking areas, and other portions of the Utility Easements, Parking Easements and
Ingress/Egress Easements and Sidewalk Easement located on their respective lots. The
Owners of Lots 1 and 2 shall be responsible for the routine maintenance of the portion of
the Public Utility Easements, Parking Easements, Ingress/Egress Easements, and
Sidewalk Easement located on their respective lots, including but not limited to surface
repair, striping, lighting, snow and ice removal, mowing and sweeping. Notwithstanding
the foregoing, the Owners of Lot 1 and Lot 2 shall share equally in the cost of
maintenance, repair, and replacement of the shared access drive used to provide
ingress/egress to and from the Lots to the public right of way and streets (the"Access
Drive"). The maintenance,repair, and replacement of the Access Drive shall be
performed as mutually agreed upon by the Owners with each individual Owner being
responsible for one half of the cost of all such maintenance, repair, and replacement of
the Access Drive. Notwithstanding the foregoing, in event the Owners cannot mutually
2
agree on such maintenance, repair, and replacement and one Owner determines in its
reasonable discretion that such maintenance, repair, or replacement is necessary, that
Owner can have such work performed and seek reimbursement from the other Owner.
The cost of the dumpster in the Dumpster Easement shall also be shared equally between
the Owners of Lot 1 and Lot 2 with the Owner of Lot 2 paying the cost thereof and the
Owner of Lot 1 reimbursing the Owner of Lot 2 one half the cost thereof monthly within
30 days of receipt of the invoice from the Owner of Lot 1, together with any
substantiating invoice from the service provider.
7. Non-Exclusive Easements. Nothing in this Agreement shall prohibit the Owners
of Lot 1 and Lot 2 from fully using and enjoying the easement areas identified herein and
located on each Owner's lot.
8. Amendment. The provisions of this Agreement shall be deemed covenants
running with the land and appurtenant to the property and each lot located within the Plat
and may not be amended,modified, changed or cancelled in whole or in part, unless by
written agreement signed by the Owners of the Lot 1 and Lot 2.
9. Rules Governing Use. The Owners of Lot 1 and Lot 2 may promulgate (and at a
reasonable frequency modify) reasonable rules and regulations for the parking easement
and ingress/egress easement. Such rules and regulations shall not materially impede
ingress/egress,parking, or drainage.
10. Enforcement. In the event that any Owner of Lot 1 or Lot 2 fails to discharge its
obligations to maintain any easement area located on their lot or with respect to the
Existing Easement Area, the other Owner shall have the right to (1)perform such
obligations after providing the defaulting Owner written notice of such failure and a
reasonable time to correct such failure and (2)to charge the defaulting Owner of the lot
for the cost thereof. Such right to reimbursement shall be secured by a lien on property
of the defaulting Owner in favor of the party performing such cure and such performing
party may record documents evidencing such lien. However, in the event any party
performs such cure without giving the applicable notice, then the performing party shall
not be entitled to reimbursement for the costs of such cure.
11. Use of Easements. The Owners shall further use commercially reasonable efforts
to prevent their employees, agents, customers,business visitor's and their tenants or
residents of residential units thereon use of the Easements from unreasonably disturbing
the use and enjoyment of the Lots and the Easements. Each Owner shall exercise such
Owner's rights and perform its obligations so as to reasonably minimize interference with
the use of each other Owner's individual Lot.
12. Iniury, Damage and Indemnification. The Owners of Lot 1 and Lot 2 shall
exercise their rights and perform their obligations under this Agreement so as to
reasonably minimize interference with the use of the each of the other lots and the
businesses operated thereon, including any construction, maintenance or alteration work
undertaken. If, in entering onto one of the other lots an Owner (or anyone acting on
behalf of the owner, including any contractor or delivery person) causes any damage
other than ordinary wear and tear, to landscaping, pavement, site improvements, or other
real or personal property located on another Owner's lot, or causes the release of any
Hazardous Substances, or causes any injury to any person, whether such damage, release,
or injury is intentional or unintentional (an "Incident"), then such owner shall, at its own
cost and expense:
(a) promptly repair any and all physical damage as necessary to substantially
restore the affected area to the condition that existed immediately before such physical
damage;
(b) remediate and remove any such contamination by Hazardous Substances
(after first obtaining such governmental approvals and permits as such remediation and
removal shall require); and
(c) indemnify, defend, and hold harmless the owner of the lot upon which the
Incident occurred from and against any and all loss, cost, liability, and expense resulting
3
from such damage or injury. Following thirty (30) days written notice to the
indemnifying owner and opportunity to cure any such condition, the indemnified owner
may perform the work described in Section (a) or (b) hereof at the expense of the
indemnifying owner.
13. Relocation of Easements. The Owners shall be free in their reasonable discretion
to reconfigure, develop and withdraw portions of the Ingress/Egress Easement, Parking
Easement, Dumpster Easement, and Utility Easement from such use provided that such
relocation shall continue to reasonably provide substantially similar parking, utility
easements and dumpster services, and parking which shall be, at a minimum, as required
by law.
14. Definitions.
14.1 Easements. "Easements"means the Utility Easements, Dumpster
Easement, Parking Easements, Ingress/Egress Easements, and Sidewalk Easement set
forth in this agreement.
14.2 Hazardous Substances. `Hazardous Substances"means any hazardous or
toxic waste, hazardous or toxic substance or material,pollutant, contaminant, chemical
substances or materials and all other dangerous substances or materials defined, listed or
described as such in, or governed by, any Law, and any other waste, substance, material,
pollutant or contaminant, that is currently or may in the future be defined, listed or
described as such under any Law or that could subject an owner or operator of property to
any regulatory actions or third party claims.
14.3 Law. "Law"means all federal, state and local laws, ordinances,
regulations, codes,rules, orders and safety guidelines pertaining to this Agreement, the
Lots, Hazardous Substances or any other matter within the scope of this Agreement.
14.4 Lot 1. "Lot 1"means Lot 1 Crown Point Subdivision to the City of Ames,
Story County, Iowa recorded as Document # � 30�2 1
1.
14.5 Lot 2. "Lot 2"means Lot 2 Crown Point Subdivision to the City of Ames,
Story County, Iowa recorded as Document # [ 123otb
1�r
14.6 Lots. "Lots" shall mean Lot 1 and Lot 2.
14.7 Owner. "Owner"means any holder of a legal or fee simple interest in any
portion of Lot 1 and Lot 2.
15. Miscellaneous.
15.1 Further Assurances. The Owners Lot 1 and Lot 2 shall each promptly
upon request take such further actions, and execute such further documents, as shall be
reasonably necessary or appropriate from time to time to implement and effectuate the
intentions expressed in this Agreement.
15.2 Governing Law; Modification. This Agreement shall be governed by,
construed and interpreted in accordance with the internal Laws of the State of Iowa,
without reference to choice of law principles.
15.3 Attorneys' Fees. In the event that an owner brings an action or proceeding
for a declaration of the rights of the parties under this Agreement, for injunctive relief, or
for an alleged breach or default of this Agreement, or any other action arising out of this
Agreement, the predominantly prevailing party in any such action shall be entitled to an
award of reasonable attorneys' fees, costs and expenses incurred in such action or
proceeding, in addition to any other damages or relief awarded, regardless of whether
such action proceeds to final judgment.
15.4 Erection of Structures Prohibited. No structures shall be constructed in the
roadways of the Ingress/Egress Easement or parking areas of the Parking Easement, or
within the Drainage Easement which would prevent or materially interfere with the free
flow of pedestrians and vehicles within such easements or which would materially
impede surface water.
4
15.5 Change of Grade Prohibited. No Owner shall change the grade, elevation
or contour of any part of the Parking Easement, Drainage Easement, Ingress/Egress
Easement, or the Public Utility Easement without obtaining the prior written consent of
the other Owners.
5
Declarant: 616 Billy Sunday Road, L.C.
By: 8W o J'n
Brent Haverkamp, Man =er
STATE OF IOWA, COUNTY:
This record was acknowledged before me on this _5�day of December, 2015,
by Brent Haverkamp as Manager of 616 Billy Sunday Road, L.C.
HEATHER M KERENS ��� y YYlkyto✓
o Commission Number 781426
_ • • My Commission Expires Notary Public-State of Iowa
• P • November 21,2016 My commission expires j
6
EXHIBIT A
Legal Description
Lots 1-2, Crown Point Subdivision, Ames, Story County, Iowa.
#2666619 v.2
i
EXHIBIT B
Site Plan
�-:
1"P1
(•
3095169 v.2
#2666619 v.2 �'