HomeMy WebLinkAbout969394WHEN RECORDED RETURN TO:
Anderson's Lazy A Ranch Ltd.
c/o Kirton McConkie
Attn: Jeff Steed
50 E. South Temple, Suite 400
Salt Lake City, Utah 85150
EASEMENT AGREEMENT
RECITALS
TERMS AND CONDITIONS
0020
RECEIVED 2/8/2013 at 11:49 AM
RECEIVING 969394
BOOK: 804 PAGE: 203
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
THIS EASEMENT AGREEMENT (this "Agreement is entered into this 1 day of
Dece l vtioer 2012, by and between ANDERSON'S LAZY A RANCH LTD., a Utah limited
partnership "Grantor and REX K. RADFORD, an individual, with an address of P.O. Box
5023, Etna, Wyoming 83118 "Grantee Grantor and Grantee are sometimes referred to
individually as a "Party" and collectively as the "Parties."
A. Grantor owns certain real property located in Lincoln County, Wyoming (the
"Grantor Property
B. Grantee owns certain real property located adjacent to the Grantor Property in
Lincoln County, Wyoming, more particularly described on Exhibit A (the "Grantee Property
attached hereto and incorporated herein by this reference.
C. Grantee desires to obtain a perpetual, nonexclusive, easement (the "Easement
on a certain portion of the Grantor Property, more particularly described on Exhibit B, attached
hereto and incorporated herein by this reference (the "Easement Area for the purposes more
particularly described in this Agreement.
D. Grantor is willing to convey the Easement to Grantee, subject to and in
conformance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and based upon the mutual promises and subject to the
conditions set forth below, the Parties agree as follows:
1. Grant of Easement. Grantor hereby conveys, without warranty, to Grantee a
perpetual, non- exclusive easement: (i) on, over, and, across the Easement Area for the purpose of
providing Grantee vehicular and pedestrian ingress and egress from the Grantee Property and for
the benefit of the Grantee Property only, (ii) on, over, and across the Easement Area for the
purpose of operating, maintaining, repairing, and replacing the existing road located within the
Easement Area (the "Road and (iii) under and through the Easement Area for the purposes of
constructing, operating, maintaining, repairing, and replacing underground utilities and
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associated underground improvements (the "Utility Improvements Grantee and its agents,
servants, employees, consultants, contractors and subcontractors (collectively, "Grantee's
Agents will enter upon the Easement Area at their sole risk and hazard and will enter upon the
Easement Area from existing roads. Grantee and its successors and assigns, hereby release
Grantor from any claims relating to the condition of the Easement Area and Grantor Property
and the entry upon the Easement Area and Grantor Property by Grantee and Grantee's Agents.
2. Reservation by Grantor. Grantor hereby reserves the right to use the Easement
Area for any use not inconsistent with Grantee's permitted use of the Easement Area. In
addition, Grantor expressly reserves the right to grant other third parties the right to use all or any
portion of the Easement Area. Without limiting the foregoing, Grantor reserves the right to
require the relocation of the Road and /or Utility Improvements at any time (or from time to time)
at Grantor's cost and expense. If the Road and /or Utility Improvements are relocated as provided
for in the previous sentence, then this Agreement shall be amended in order to terminate the
Easement in its previous location and to grant the Easement in the new location.
3. Condition of the Easement Area. Grantee accepts the Easement Area and all
aspects thereof in "AS IS "WHERE IS" condition, without warranties, either express or
implied, "with all faults including but not limited to both latent and patent defects, and the
existence of hazardous materials, if any. Grantee hereby waives all warranties, express or
implied, regarding the title, condition and use of the Easement Area, including, but not limited to
any warranty of merchantability or fitness for a particular purpose.
4. Maintenance and Restoration.
4.1. General Maintenance and Restoration. Grantee, at its sole cost and
expense, shall maintain and repair the Road and the Utility Improvements in good order and
condition. Grantee shall promptly repair any damage to the Grantor Property and Grantor's
improvements located thereon (including, without limitation, any and all landscaping, trees,
fences, water and /or irrigation pipes, lines and ditches, curbs, gutters, asphalt surfaces, fences,
signs, lighting, buildings, etc.) caused by Grantee and /or Grantee's Agents, and shall restore the
Grantor Property and the improvements thereon to the same or better condition as they existed
prior to any entry onto or work performed on the Grantor Property by Grantee and Grantee's
Agents.
4.2. Damage Fees. Grantee will reimburse Grantor for any losses (including
lost profits) and expenses due to crop damage, loss of rental income or other loss or damage that
results from Grantee's, or Grantee's Agents': (i) entry onto, presence upon, or work performed
on the Grantor Property; and (ii) failure to comply with any of the terms or conditions of this
Agreement.
4.3. Future Work Conducted. Grantee will provide Grantor with at least five
(5) days prior telephonic notice before entering onto the Easement Area to perform any work as
set forth in this Agreement and use reasonable efforts to minimize any interference or disruption
to Grantor's use and occupancy of the Grantor Property. In order to provide the necessary
telephonic notice as set forth in this Section, Grantee shall contact Margaret Anderson at (801)
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451 -5717 or any other party as designated in writing by Grantor or Grantor's successor -in-
interest.
4.4. Hazardous Substances. Except for motor fuels used by vehicles and
construction equipment, Grantee agrees not to transport, generate, store, dispose of, release, or
use any Hazardous Substances on the Grantor Property. As used in this Agreement, the term
"Hazardous Substances" means all hazardous and toxic substances, wastes or materials,
including without limitation, hydrocarbons (including naturally occurring or man -made
petroleum and hydrocarbons), flammable materials, explosives, urea formaldehyde insulation,
radioactive materials, biologically hazardous substances, PCBs, pesticides, herbicides, and any
other kind and /or type of pollutants or contaminants (including, without limitation, asbestos and
raw materials which include hazardous constituents), sewage sludge, industrial slag, solvents
and /or any other similar substances or materials which, because of toxic, flammable, ignitable,
explosive, corrosive, reactive, radioactive, or other properties may be hazardous to human health
or the environment and /or are included under, subject to or regulated by any Hazardous Waste
Laws. Grantee agrees to immediately notify Grantor of any leaking or spillage of Hazardous
Substances on the Grantor Property. Grantee shall be exclusively liable for all cleanup and
remediation costs thereof.
As used in this Agreement, the term "Hazardous Waste Laws" means any and all
present and future applicable (i) federal, state and local statutes, laws, rules or regulations
governing Hazardous Substances; (ii) judicial or administrative interpretations thereof, including
any judicial or administrative orders or judgments; and (iii) ordinances, codes, plans, injunctions,
decrees, permits, demand letters, concessions, grants, franchises, licenses, agreements, notices,
or other governmental restrictions, relating to the protection of the public health, welfare, and the
environment, or to any actual, proposed or threatened storage, holding, existence, release,
emission, discharge, spilling, leaking, pouring, pumping, injection, dumping, discarding,
burying, abandoning, generation, processing, abatement, treatment, removal, disposition,
handling, transportation or other management of any Hazardous Substance or any other activity
or occurrence that causes or would cause any such event to exist.
5. Liens. Grantee shall keep the Grantor Property free from any liens arising out of
any work performed, materials furnished, or obligations incurred by, through, for or under
Grantee, and shall indemnify, hold harmless and agree to defend Grantor from any liens that may
be placed on the Grantor Property pertaining to any work performed, materials furnished or
obligations incurred by, through, for, or under Grantee or any of Grantee's Agents.
6. Insurance. Grantee shall obtain and maintain a policy of general commercial
liability insurance sufficient to insure Grantee's interests against claims for personal injury,
bodily injury, death, and property damage occurring on, in or about the Easement Area. Grantee
shall name the Grantor as an additional insured under their general commercial liability
insurance. Grantee is responsible for advising Grantor of any change in ownership of the Grantee
Property so that the proper owner can obtain and maintain the necessary general commercial
liability insurance.
7. Compliance with Laws. Grantee will comply with all present or future laws,
statutes, codes, acts, ordinances, rules, regulations, orders, judgments, decrees, injunctions, rules,
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regulations, permits, licenses, authorizations, directions and requirements of and agreements with
all governments, departments, commissions, boards, courts, authorities, agencies, officials and
officers, foreseen or unforeseen, ordinary or extraordinary, including, without limitation, any
building, zoning, land use, and Hazardous Waste Laws.
8. Indemnification. Grantee shall indemnify, defend with counsel of Grantor's
choice, and hold Grantor and its employees, officers, divisions, subsidiaries, partners, members
and affiliated companies and entities and its and their employees, officers, shareholders,
members, directors, agents, representatives, and professional consultants and its and their
respective successors and assigns (collectively, the "Indemnitees harmless from and against
any loss, damage, injury, accident, fire or other casualty, liability, claim, cost or expense
(including, but not limited to, reasonable attorneys' fees) of any kind or character to any person
or property, including the property of the Indemnitees, (collectively, the "Claims" or a "Claim
from or by any unaffiliated third party, Grantee, and/or Grantee's Agents, arising from or
relating to (i) any use of the Easement Area and /or adjacent areas by Grantee or Grantee's
Agents, (ii) any act or omission of Grantee or any of Grantee's Agents, (iii) any bodily injury,
property damage, accident, fire or other casualty to or involving Grantee or Grantee's Agents and
its or their property on the Easement Area and /or adjacent areas, (iv) any violation or alleged
violation by Grantee or Grantee's Agents of any law or regulation now or hereafter enacted, (v)
the failure of Grantee to maintain the Easement Area, the Road and/or the Utility Improvements
in a safe condition, (vi) any loss or theft whatsoever of any property or anything placed or stored
by Grantee or Grantee's Agents on or about the Easement Area and /or adjacent areas, (vii) any
breach by Grantee of its obligations under this Agreement, and (viii) any enforcement of Grantor
of any provision of this Agreement and any cost of removing Grantee from the Easement Area or
restoring the same as provided herein; provided, however, that the foregoing indemnity shall not
apply to the extent any such Claim is ultimately established by a court of competent jurisdiction
to have been caused solely by gross negligence or willful misconduct of the Indemnitees.
Grantee, as a material part of the consideration of this Agreement, waives all claims or demands
against Grantor and the other Indemnitees for any such loss, damage or injury of Grantee or
Grantee's property. The indemnity provided by Grantee in favor of the Indemnitees in this
Agreement shall not require payment as a condition precedent. The terms and conditions of this
provision shall remain effective, notwithstanding the expiration or termination of this
Agreement.
9. Termination. This Agreement and the Easement set forth herein will be
automatically terminated upon Grantee deciding that it will no longer use the Easement and gives
Grantor written notice thereof. Upon the occurrence of the event set forth in the preceding
sentence, Grantor may record an instrument terminating this Agreement and the Easement, and
Grantee appoints Grantor its attorney -in -fact, such power being coupled with an interest for such
purposes.
10. Removal of the Improvements. Upon the termination of this Agreement and the
Easement, Grantee will complete one of the following two options, which option will be chosen
by Grantor in Grantor's sole and absolute discretion: (i) remove the Utility Improvements and
completely restore the Grantor Property to the condition that existed prior to the installation of
the Utility Improvements and Grantee's use of the Grantor Property, all pursuant to the
restoration provisions of this Agreement; or (ii) abandon the Utility Improvements in accordance
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with the highest industry standards and customs used at the time of abandonment and completely
restore the Grantor Property to the condition that existed prior to the installation of the Utility
Improvements and Grantee's use of the Grantor Property (excepting only the presence of the
Utility Improvements), all pursuant to the restoration provision of this Agreement.
11. Attorneys Fees. If this Agreement or any provision hereof shall be enforced by
an attorney retained by a Party hereto, whether by suit or otherwise, the reasonable fees and costs
of the attorney for the prevailing Party shall be paid by the losing Party, including fees and costs
incurred upon appeal or in bankruptcy court.
12. Notices. All notices shall be in writing and shall be deemed to have been
sufficiently given or served when presented personally or by depositing the same in the United
States mail by registered or certified mail, addressed as follows:
If to Grantor:
If to Grantee:
Anderson's Lazy A Ranch Ltd.
Attn: Margaret F. Anderson
1573 Sweetwater Lane
Farmington, Utah 84025
Rex K. Radford
P.O. Box 5023
Etna, Wyoming 83118
Either Party may designate a different individual or address for notices, by giving written notice
thereof in the manner described above.
13. Default by Grantee. If: (i) Grantee has defaulted or is in default or breach of any
of its obligations stated herein; (ii) Grantor has provided Grantee written notice of Grantee's
default; and (iii) thirty (30) days have expired since Grantee received written notice from Grantor
regarding Grantee's default and Grantee has failed to cure its default within the thirty (30) day
period, Grantor, at its option, may: (a) pursue any remedy available at law or in equity; (b)
pursue the remedy of specific performance or injunction; (c) seek declaratory relief; (d) pursue
an action for damages for loss; and/or (e) terminate this Agreement and the Easement. If Grantor
chooses to terminate this Agreement and the Easement, Grantor may unilaterally record an
instrument terminating this Agreement and the Easement, as well as any and all other easements,
rights -of -way or licenses Grantee may have (or may claim to have) to use Grantor Property, and
Grantee grants unto Grantor an irrevocable power of attorney, said power being coupled with an
interest, for the purpose of recording a termination of easement instrument, so long as items (i)
through (iii) have occurred.
14. No Public Use /Dedication. The Grantor Property is and shall at all times remain
the private property of Grantor. The use of the Grantor Property is permissive and shall be
limited to the express purposes contained herein by Grantee. Neither Grantee, nor its successors
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[Signatures and Acknowledgements to Follow]
6
00208
or assigns, nor the public shall acquire nor be entitled to claim or assert any rights to the Grantor
Property beyond the express terms and conditions of this Agreement.
15. No Third Party Beneficiaries. In assuming and performing the obligations of
this Agreement, Grantor and Grantee are each acting as independent parties and neither shall be
considered or represent itself as a joint venturer, partner, agent, or employee of the other. There
is no intent by either Party to create or establish third party beneficiary status or rights in any
third party. This Agreement shall not be deemed to confer any rights upon any individual or
entity which is not a party hereto, and Grantor and Grantee expressly disclaim any such third
party benefit.
16. Miscellaneous. This Agreement (including all attached Exhibits) constitutes the
entire agreement between the Parties hereto pertaining to the subject matter hereof and all prior
and contemporaneous agreements, representations and understandings of the Parties hereto, oral
or written, are hereby superseded and merged herein. No supplement, modification or
amendment of this Agreement shall be binding unless in writing and executed by the Parties
hereto. This Agreement shall be construed in accordance with and governed by the laws of the
State of Wyoming. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be
a continuing waiver. No waiver shall be binding unless executed in writing by the Party making
the waiver. The headings of this Agreement are for purposes of reference only and shall not limit
or define the meaning of the provisions hereof. The Recitals set forth above are incorporated into
this Agreement by reference. If any provision of this Agreement or the application thereof to any
person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid,
unenforceable, or void, the remainder of this Agreement and such provisions as applied to other
persons, places, and circumstances shall remain in full force and effect; provided, however, the
invalid provision does not have a materially adverse effect on Grantor. This Agreement is the
result of negotiations among the Parties, none of whom has acted under any duress or
compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions hereof
shall be construed in accordance with their usual and customary meanings. Each Party hereby
waives the application of any rule of law which otherwise would be applicable in connection
with the construction of this Agreement that ambiguous or conflicting terms or provisions should
be construed against the Party who (or whose attorney) prepared the executed this Agreement or
any earlier draft of the same. As used herein, all words in any gender shall be deemed to include
the masculine, feminine, or neuter gender, all singular words shall include the plural, and all
plural words shall include the singular, as the context may require. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
4811 4190- 4145.1
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year
first above written.
STATE OF
Grantor: ANDERSON'S LAZY A RANCH LTD.,
a Utah limited partnership
Grantee:
STATE OF-
SS
COUNTY OF Daren/1
1
1
1
On this 1 day of
Radford, an individual }gwn to me
,t+l�
me that she signec1 flopo ,dn �a
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+moo P p R l w
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Byrn
Name (Print): Inak r a/ k 1 A n 4.( r o
Its:
REX K. RA ORD
"14 4- r Q
ss
COUNTY OF 50,, /,f- /ct
On this 1 4 1 4 day of ov 2012, personally appeared before
et e i rat known or satisfactorily proved to me to be the (,,.P at
of A derson's Lazy A Ranch Ltd., a Utah limited pa tnership, who acknowledged to me that
he /she signed the foregoing instrument as 4en,Pr a glow- for said a a,Loi
-.1
r Notary Public
CRAIG F McCULLOUGH
Commission #579542
State of Utah
k NM MOM Wan �MMig MUM P.M MUM WS
2012, personally appeared before me RelrIC:
or satisfactorily proved to me to be, who acknowledged to
ument.
Notar I' ublic
My Commission Expires
Jury 17.2013
1V
/0/5v
4811 4190 4145.1
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EXHIBIT A
[Legal Description of the Grantee Property]
Tract 1 (Warranty Deed recorded in Book 107 PR, page 545)
Lot 1, Section 1, T35N, R119W of the 6 P.M., in the County of Lincoln, State of Wyoming.
Tract 2 (Warranty Deed recorded in Book 397 PR, page 386)
Beginning at the Northeast corner of the NW1 /4NE1 /4 of Section 1, T35N, R119W of the 6th
P.M., Lincoln County, Wyoming, and running thence West 10 rods, thence South 16 rods, thence
East 10 rods, thence North 16 rods to the point of beginning
Tract 3 (Warranty Deed recorded in Book 425 PR, page 591)
Beginning at a point that is 10 rods West of the Northeast corner of the NW1 /4NE1 /4 of Section
1, T35N, R119W of the 6 P.M., Lincoln County, Wyoming, and running thence West 10 rods,
thence South 16 rods, thence East 10 rods, thence North 16 rods to the point of beginning.
A -1
ap-
my 511.1.10.
ftny
DESCRIPTION FOR
ANDERSON LAZY A RANCH LTD
RADFORD ACCESS EASEMENT
To -wit:
EXHIBIT B
[Legal Description of the Easement Area]
COPY
That part of the SE%SE% of Section 36, T36N R119W, Lincoln County, Wyoming, being part
of that tract of record in the Office of the Clerk of Lincoln County in Book 326 of Photostatic
Records on page 706, described as follows:
BEGINNING at the southwest corner of said SE' /SE'
thence N00 l5' 23 "W, 32.07 feet, along the west line of said SE' /.SE'/., to a point;
thence S34 05' -50 "E, 38.73 feet, to a point on the south line of said SEY..SE;
thence N89 59' -31 "W, 21.57 feet, along said south line, to the CORNER OF BEGINNING;
the BASE BEARING for this survey is the east line of the SE/. of Section 36, T36N 10119W,
being N00 19' -12 "W;
each "coiner" found as described in the Corner Record filed or to be filed in the (Nice of the
Clerk of Lincoln County;
each "point" marked by a 5/8" x 24" steel reinforcing rod with a 2" aluminum cap inscribed,
"SURVEYOR SCHERBEL LTD AFTON WY PLS t 1810 with appropriate details;
all in accordance with the plat prepared to be filed in the Office of the Clerk of Lincoln County
titled, "PLAT OF FAMILY EXEMPT TRACT FOR ANDERSON LAZY A RANCH LTD
WITHIN THE S1W,SE' SECTION 36 T36N RI19W LINCOLN COUNTY, WYOMING
dated 7 December 2009, as revised.
29 December 2009
16 December2009
'1 MOV4.119.35\Anders., Lary A r1:
Modification in any way of the foregoing description terminates liability of the surveyor'
B -1
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