Loading...
HomeMy WebLinkAbout969395WHEN 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 RECITALS RECEIVED 2/8/2013 at 11:55 AM RECEIVING 969395 BOOK: 804 PAGE: 212 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY UNDERGROUND WATER PIPELINE EASEMENT AGREEMENT THIS UNDERGROUND WATER PIPELINE EASEMENT AGREEMENT (this "Agreement is entered into this 7 day of LCein.(oer 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, underground easement (the "Easement under and through 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. TERMS AND CONDITIONS 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 for the benefit of the Grantee Property a perpetual, non exclusive easement under and through the Easement Area for the purposes of operating, maintaining, repairing, and replacing an underground water pipeline and associated underground improvements in the Easement Area (the "Improvements 4828 4918 2481.1 002162 5. Maintenance, Restoration, and Crop Damage. 2 c -4 9 ��1 2. Access. Grantee and its agents, servants, employees, consultants, contractors and subcontractors (collectively, "Grantee's Agents will have the right to enter upon the Easement Area for the purposes permitted by this Agreement. Grantee's Agents will enter upon the Easement Area at their sole risk and hazard. Grantee's Agents 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. 3. 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 Improvements at any time (or from time to time) at Grantor's cost and expense. If the 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. 4. 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. 5.1. General Maintenance and Restoration. Grantee, at its sole cost and expense, shall maintain and repair the 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. 5.2. 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. 5.3. 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 construction, maintenance or repair 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 4828 4918 2481.1 00r, shall contact Margaret Anderson at (801) 451 -5717 or any other party as designated in writing by Grantor or Grantor's successor -in- interest. 5.4. 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. 6. 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. 7. 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. 8. Compliance with Laws. Grantee will comply with all present or future laws, statutes, codes, acts, ordinances, rules, regulations, orders, judgments, decrees, injunctions, rules, 3 4828- 4918 2481.1 4 4828 4918 2481.1 �2d G. r _IL 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. 9. 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 and /or the 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. 10. Termination. This Agreement and the Easement set forth herein will be automatically terminated upon the earlier to occur of the following: (i) Grantee decides that it will no longer use the Easement and gives Grantor written notice thereof, or (ii) the Improvements cease to be used by either Party for a consecutive period of one (1) year. Upon the occurrence of an 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. 11. 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 Improvements and completely restore the Grantor Property to the condition that existed prior to the installation of the Improvements and Grantee's use of the Grantor Property, all pursuant to the restoration provisions of this Agreement; or (ii) abandon the Improvements in accordance 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 Improvements and Grantee's use of the Grantor Property (excepting only the presence of the Improvements), all pursuant to the restoration provision of this Agreement. 12. 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. 13. 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 4-1, 4J 'l) 4 10 Either Party may designate a different individual or address for notices, by giving written notice thereof in the manner described above. 14. 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. 15. 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 5 4828 4918- 2481.1 002 limited to the express purposes contained herein by Grantee. Neither Grantee, nor its successors 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. 16. 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. 17. 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. [Signatures and Acknowledgements to Follow] 6 4828 4918 2481.1 IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written. On this STATE OF COUNTY OF 1 Vl ss Grantor: ANDERSON'S LAZY A RANCH LTD., a Utah limited partnership Grantee: By r) `r 11 a C� Name (Print): r V f 7` ✓1 X 1 1 e r S c► 6'7 Its: REX K. RAD ORD f&4 r "e STATE OF (,(1 ss COUNTY 01574- la 1 es day of 1 t 2012, personally appeared before erco- known or satisfactorily proved to me to be the of derson's Lazy A Ranch Ltd., a Utah limited partnership, who ackno he /she signed the foregoing instrument as f p ra it te,for said Y.•( N ary Public pro Mir Mr Mr Wr Notary Public CRAIG F McCIILLOUGH Commission #579542 My Commission Expires N July 17, 2013 zoo. State of Utah p 3kf aewo o Mr Boa® ®I® Mr WMW 0 Mr MS edge to me that /pct On this 1 day of D t-t 2012, personally appeared before me itcx K. Radford, an individual, known to me or satisfactorily proved to me to be, who acknowledged to me that she signed t oing instrument. ee W A CIV p ��i �eer •sOe •p ;4 W g O a: a �d. s e U 1 7 4828 4918- 2481.1 0021 me 0021 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 4828 4918- 2481.1 DESCRIPTION FOR ANDERSON LAZY A RANCH LTD RADFORD ANDERSON PIPELINE EASEMENT To -wit: 17 December 2009 [Legal Description of the Easement Area] EXHIBIT B B -1 co y A strip of land twenty (20) feet in width, within the SE %SE' of Section 36, T36N R119W, Lincoln County, Wyoming, being ten (10) feet each side of the following described centerline: BEGINNING at the head gate of the Anderson Radford Pipeline, N46 23' -45 "W, 1068.57 feet, from the southeast comer of said SE %SEY..; thence N63 01' -39 "W, 43.09 feet, to a position; thence N87 26' -24 "W, 321.15 feet, to a position; thence S83 00' -56 "W, 189.94 feet, to a position on the west line of said SE' /.SE' the BASE BEARING for this survey is the east line of the SE' of Section 36, T36N R119W, being N00 19' -12 "W; the northerly and southerly right -of -way lines of the above described easement to be shortened or lengthened as necessary to create a continuous easement with a minimum width of twenty (20) feet to meet the west line of said SE'/.SE' and the thread of Birch Creek; that it is intended that this description describe the centerline of an existing underground pipeline; should it be determined that the position of the actual differs from that described herein, the centerline of the actual pipeline automatically becomes the centerline of this description and easement; each "comet" found as described in the Comer Record filed or to be filed in the Office of the Clerk of Lincoln County; each "position" is a calculated position with no monument found or set, referenced by a 5/8" X 24" steel reinforcing rod with a 2" aluminum cap inscribed: "SURVEYOR SCHERBEL LTD AFTON WY PLS 11810 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 TRACT AND EASEMENT FOR ANDERSON LAZY A RANCH LTD WITHIN S1 /2SE1 /4 SECTION 36 T36N R119W LINCOLN COUNTY, WYOMING dated 26 January 2008, as revised. vr&Rus -119 S36 Vtex Redford "Modification in any way of the foregoing description terminates liability of the surveyor 4828 4918 2481.1 00220