Loading...
HomeMy WebLinkAbout911769 ACCESS EASEMENT AGREEMENT FOR RUNWAYSrrAXIWAYS AT AFTON-LINCOLN COUNTY AIRPORT This AGREEMENT shall be effective as of the ! / ~ day, of August, 2005, and is made by and between the AFTON-LINCOLN COUNTY AIRPORT JOINT POWERS BOARD (hereinafter referred to as the "Grantor") and the Afton Airpark Homeowners' Association, for the benefit of each Lot within Afton Airpark subdivision, as such is defined below. WHEREAS Grantor is the owner of certain real property known as the Afton- Lincoln County Airport and the runways/taxiways located thereon, located in Afton, Lincoln County, Wyoming (hereinafter referred to as the "Airport"); and WHEREAS BarrMore, LLC is developing a subdivision adjacent to the Airport (herein "Afton Airpark") and is the owner of Affon Airpark and each lot thereof on the date of this agreement. A homeowners association is created for the administration of issues relating to Alton Airpark and each platted Lot therein (herein "Homeowners' Association"). WHEREAS, Afton Airpark is intended to be used for residential and aviation purposes, and the parties hereto acknowledge that the owners of the lots within Alton Airpark, as shown on the recorded Plat for Afton Airpark (herein "Lot" or "Lots"), are expected to use their Lot(s) therein for residential purposes with direct, through-the- fence aircraft access to/from the Airport to the hanger built upon their individual Lot. WHEREAS Grantor agrees to permit such through-the-fence aircraft travel and access to/from the Airport and the adjacent Afton Airpark for each Lot owner's taxiing of aircraft to/from each lot within the subdivision for a fee of $400.00 per year per hanger constructed on any Lot that utilizes, or has the opportunity to utilize, such through-the- fence access rights within Afton Airpark. WHEREAS, Grantor does not wish to be burdened by the administration of collecting the $400.00 annual fee from each and every Lot owner and requires the Homeowners' Association in charge of adminiStering certain issues within Alton Airpark, to collect such fee annually and forward the same to Grantor. Grantee is willing to assume such responsibility for forwarding such payments due to Grantor under this agreement. IN CONSIDERATION of the mutual covenants and obligations contained herein, the parties hereto mutually agree as follows: '1. Grant of Access Easment. Grantor hereby grants an access easement to Homeowners' Association and to each Lot within Afton Airpark, herein Grantee, for the benefit of each said Lot within Afton Airpark; subject to the conditions hereinafter set forth, along those runways, taxiways and thoroughfares intended for aircraft travel in the operation of the Airport, extending along all such routes now or hereafter existing to the boundary of Afton Airpark, as such routes and boundary are shown on Exhibit A, attached hereto and incorporated herein. The Airport property burdened by this Access Agreement, and the easement routes across said property, as shown on Exhibit A, are referred to herein as the Access Routes. ' 00. 88 2. Purpose/Intent. This Access Agreement is intended to benefit each Lot within Afton Airpark to provide access rights over and across said Access Routes and through-the-fence of the Airport property and into the Subdivision and the private taxiways and lanes therein designated for aircraft travel. When any owner of a Lot constructs a home or a hanger on the Lot,'that owner shall, upon commencement of such construction, be required to pay the annual fee set forth below for the right to travel along and upon said Access Routes on Airport property, through the fence and into the Subdivision, whether or not such right is utilized by the Lot owner. It shall be the Homeowners' Associations' responsibility to collect the required fee from each Lot and forward the fees so collected from each Lot to the Grantor by the date required herein. 3. Lot Owner's Use of Airport/Access Routes. Grantee's use, by and through its members/Lot owners who have either a home or hanger constructed on his/her Lot in Afton Airpark, of the Airport and said Access Routes for aircraft travel is permitted subject to all rules, regulations and ordinances otherwise applicable to all users of the Airport and Access Routes and as set forth below. Grantor shall retain the nonexclusive right to the Airport and said Access Routes. Nothing herein shall prohibit the right of the Grantor to use or allow the use of said Access Routes to other public or private parties. 4. Annual Access Fee. The owner of each Lot who has constructed either a home and/or a hanger on the Lot, shall pay to Grantor, by and through Grantee, as and for the annual access fee for the above-described Access Routes, the sum of $400.00 per Lot, with a home/hanger constructed thereon, for each year during the initial five (5) year term hereof, as such fee may be modified as set forth below. The annual fee shall become first due for each Lot upon the commencement of construction of a home and/or a hanger on the Lot. The annual fee shall be due and delivered from each said Lot owner to Grantee on or before October 1st of each year during the term hereof, and the Grantee shall forward all such payments made by the owners of Lots on or before December 1st of each year. The annUal fee shall be made delivered by each such Lot to the Homeowners' Association, who shall thereafter deliver such payments to Grantor at: P.O. Box 1181, Alton, WY 83110, or such other location as Grantor shall designate. Any fee not paid by a Lot owner within thirty (30) days of the due date shall be paid to the Grantor by the Homeowners' Association on behalf of that Lot - any such payment made for said Lot shall accrue interest at the rate of ten percent (10%) per annum until paid in full, and the Homeowners' Association shall have the right to collect the fee paid, plus interest, from the Lot owner and such obligation shall be a lien on such Lot until paid in full. Any fee which is due and unpaid to Grantor at the expiration, termination or cancellation of this easement shall constitute a charge against the Grantee. No owner of any Lot upon which neither a home or a hanger has been constructed upon shall be required to pay said fee until such year as construction begins on a home and/or hanger thereon. 5. Adjustment(s) To Annual Fee. The annual fee due under this Agreement for the initial five (5) years is $400.00/year, as set forth above. The initial term of easement shall commence on the date hereof and end five (5) years from the date hereof. At the expiration of the initial 5-year period, the Grantor may adjust the annual fee for each three (3) year period thereafter beginning on the date the initial 5- year period expires and ending on the anniversary date three years thereafter and again every three (3) years thereafter. The annual fee charged by Grantor during each 3-year period after the initial 5- year period expires may be adjusted by the Grantor if the cost of living has increased enough that the annual fee must be adjusted for inflation, as measured by a reasonably standard index for actual local inflation rates. On or before the date of expiration for each of said additional 3-year period, Grantor shall have the right to so adjust the annual fee charged. This easement shall remain in effect for so long as the annual fees are so paid and for so long as the Airport is in operation and the HOA exists is some form. Conditions of A.qreement. Grantee's right to use said Access Routes shall be subject to the following conditions: (a) Grantee shall comply with all applicable rules, regulations and orders promulgated by the Federal Aviation Administration; (b) Grantee shall comply with all applicable laws of the State of Wyoming; (c) Grantee shall comply with all applicable laws, rules and regulations, or code of ordinances of the Grantor as the same now exist or as may be properly amended in the future. (d) This Agreement will be, at all times, in conformity with all applicable rules, regulations and orders propagated by the Federal Aviation Administration, the applicable laws of the State of VVyoming and the Town of Afton. This Agreement may be modified to conform with the requirements under such laws and no damages may be assessed by any court or entity for such modifications; provided however, that such modifications shall be made only if reasonably necessary under said laws and such modifications shall not unreasonably or unduly abrogate the purposes of this agreement. 7. Maintenance, Repair, Snow Removal And Improvement to Access Routes. Nothing in this easement agreement shall place any additional burden on Grantor to maintain, repair or improve the Access Routes for which Grantor is not 0039 0 otherwise obligated to do outside of this agreement. Additionally, Grantee shall bear the sole obligations to maintain, repair, remove snow and/or improve such travel routes used by them which lie within the boundaries of Afton Airpark, and Grantor shall have no obligation or liability for such items within said Afton Airpark. 8. Indemnification. Grantee agrees to indemnify, defend and hold Grantor and its officers, employees and agents harmless from all liability for injuries to persons or damage to property caused by the negligent use or occupancy of the premises by Grantee, Grantee's agents, employees, guests or invitees. Grantee waives all claims against Grantor for damage to goods or for injuries to persons on or about the Access Routes from any cause arising at any time. Grantee hereby indemnifies Grantor in excess of and only for matters not actually covered by policies of insurance required to be maintained in force by Grantee hereunder on account of any damage or injury to any person, or to the goods and property of any person, arising from the use of the Access Routes. 9. Acceptance of Access Routes. Grantee accepts the Access Routes on an "as is" basis. Grantor disclaims, and Grantee accepts the disclaimer, any warranty, express or implied, regarding condition, use or fitness of said routes. The parties agree that the existing routes are reasonably identifiable and the description herein is intended to cover all of the above-described routes available for aircraft travel at the Airport. 10. Assignment. Each and every Lot owner within Afton Airpark, and Grantee, are afforded the rights hereunder; however, Grantee shall not otherwise assign its rights under this agreement or any part thereof to anyone other than a Lot owner. 11. Default or Breach. Each of the following events shall constitute a default or breach of this easement agreement: (a) If Grantee, or any owner of a Lot required to pay.hereunder, shall fail to pay Grantor the annual access fee, when said fee shall become due and shall not make the payment within sixty (60) days after written notice thereof by Grantor to Grantee. (b) If Grantee or Grantor shall fail to perform or comply with any of the conditions of this easement and if the nonperformance shall continue for a period of sixty (60) days after written notice thereof by the non-defaulting party. 12. Effect of Default and Termination. In the event of any default by Grantor or the Homeowners' Association/Grantee, the non-defaulting party shall have the right to cancel and terminate this agreement or require the specific performance thereof by giving to the defaulting party not less than ninety (90) days written notice of the termination or intent to require specific performance. In the event of default by specific Lot owner(s) which is not timely cured, the Grantor shall have the right to terminate the benefit of this easement agreement as to 00391 that specific Lot owner(s) only and not to the Homeowners' Association or other Lot owners otherwise in compliance with this agreement. Grantor's power to terminate as to such Lot owner(s) will be at will, provided it is based on protecting the health, welfare and safety of the other Lot owners, agents of the Airport Board and patrons of the airport. The right to terminate as to such Lot owner(s) includes the right to temporarily suspend access of that Lot owner for a period of time, not exceeding one hundred eighty (180) days, and after two (2) temporary suspensions, the right to permanently terminate access to the Lot owner. 13. Attorney's Fees. In the event that a party is required to take any legal action of whatever kind or nature against the other to enforce any term or condition of this easement, the defaulting party shall be responsible for any and all costs and expenses or part thereof, including a reasonable attorney's fees incurred by the prevailing party, as adjudged by the Court. Provided however, should Grantor be required to bring an enforcement action against a defaulting Lot owner directly, the Grantee Homeowners' Association shall reimburse Grantor for any and all reasonable attorney fees incurred by Grantor related to the use of the access and/or enforcement of this agreement against such Lot owner. As set forth in the Covenants, Conditions and Restrictions affecting Afton Airpark, the Homeowners' Association shall have the right to collect the same from such Lot owner. 14. Total Agreement: Successors. This Access Agreement contains the entire agreement between the parties and cannot be changed or modified except by a written instrument of consent agreed to and signed by the party against whom enforcement is sought. This Access Agreement and the term and conditions thereof apply to and shall be binding on the legal representatives, successors and assigns of both parties. 15. Applicable Law. This agreement shall be governed by and construed in accordance with the laws of the State of Wyoming. 16. No Waiver. The waiver or failure of either party to insist in any one or more instances upon the strict performance by the other of any provisions or covenant in this easement shall not be considered as a waiver or relinquishment for the future, but the provision or covenant shall continue in full force. 17. Grantor's Authority. Grantor has, by proper resolution, authorized the execution of this agreement and has the authority to grant the rights hereunder to Grantee. IN WITNESS WHEREOF this easement agreement has been entered into the day and year above written, with each party affirming that they have the proper authority to execute the same. Grantor: AFTON-LINCOLN COUNTY AIRPORT JOINT POWERS BOARD Date: O Chairman Grantee: Afton Airpark Homeowners' Association. Date: Bart McCutcheon STATE OF VVYOMING ) COUNTY OF LINCOLN ) The above and foregoing instrument was acknowledged before me by_ _ _ For the Afton-Lincoln County Airport Joint Powers Board aba. y this of August, 2005. WITNESS my hand and official seaU I ~ota~ Pub~ My commission expires: STATE OF VVYOMING ) )SS. COUNTY OF LINCOLN ) MY COMMISSION EXPIRES SEPT 20 2007 The above and foregoing instrument was acknowledged before me by Bradley D. Morehouse and B.3rr ,M,/c~.~.,hcom, on behalf of the Alton Airpark Homeowner's Association on this II ~ /-.~day of AugUst, 2005. WITNESS my hand and official sea My comm~smon exp~res.--l,/~..j~j-[ t LINCOLN ~ WYOMtNG t State of Wyoming County of Lincoln 00393 On this 23rd day of August, 2005, personally appeared Bart McCutcheon, Member of BarrMore, LLC, a Wyoming limited liability company, before me a notary public for the State of Wyoming, known to me to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same. My Commission Expires: 9-15-07 Notary Public for State of W¢7oming C')-- -..IZ cz ZO m-o '--IF- ~NV-I 'Hl~lOMdVd