HomeMy WebLinkAboutCROSS OF EASEMENT - 16-00478 - 273 S 5th W - Campus Courtyard 2WHEN RECORDED RETURN
DuPree Law Offices, P.C.
P.O. Box 723
Rexburg, Idaho 83440
16 - eo k}8
RECORDER
at Request of
TITLE - REXBURG OFFICE
4CE TITLE.
P.O. BOX -12
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CROSS EASEMENT AGREEMENT
THIS CROSS EASEMENT AGREEMENT ("Agreement") is made as of the 2"d
day of May, 2012, by Exchange #517, LLC, an Idaho limited liability company
("Exchange #517"), and S&S One LLC, an Idaho limited liability company ("S&S
One").
RECITALS:
A. Exchange #517 is the owner of that certain real property located in the City
of Rexburg, Madison County, Idaho, which is more particularly described on Exhibit A
attached hereto and incorporated herein by reference (the "Exchange #517 Parcel").
B. Exchange 4517 is constructing one (1) apartment building on the South side
of the Exchange #517 Parcel ("Exchange #517 Building One") and two (2) apartment
buildings on the East side of the Exchange #517 Parcel ("Exchange #517 Buildings Two
and Three"). Exchange #517 also may construct one (1) apartment building on the North
side of the Exchange #517 Parcel ("Exchange #517 Building Four").
C. S&S One is the owner of that certain real property situated in the City of
Rexburg, Madison County, Idaho, which is more fully described on Exhibit B attached
hereto and incorporated herein by reference (the "S&S One Parcel").
D. S&S One is constructing one (1) apartment building on the South side of
the S&S One Parcel ("S&S Building One"). S&S One may construct one (1) apartment
building on the North side of the S&S One Parcel ("S&S Building Two").
E. Exchange #517 and S&S One desire to grant each other cross easements
over and across, and with respect to, portions of the Exchange #517 Parcel and the S&S
One Parcel, respectively, for the purposes stated in this Agreement and in accordance
with and subject to the terms of this Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants
and agreements herein set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
Cross Easement Agreement —Page 1 374538
1. Easement Over S&S One Parcel. S&S One does hereby establish for the
benefit of the Exchange #517 Parcel and grant and convey to the owners from time to
time of the Exchange #517 Parcel and such owners' tenants, the invitees of such owners
and tenants, and the providers of emergency services, a permanent, perpetual,
nonexclusive easements appurtenant to the Exchange #517 Parcel over and across, and
for, the pedestrian walkways, sidewalks, or paths and vehicular driveways, roadways, fire
lanes, fire hydrants, and parking areas as are located on or may be located on the S&S
One Parcel from time to time (the "S&S One Parcel Easement Area"), for the purpose
of pedestrian and passenger vehicular ingress and egress to and from the Exchange#517
Parcel and vehicular parking and those matters further described in paragraphs 7, 8, 9, 10
and 11 (the "Exchange #517 Easements"). S&S One reserves the right to rearrange and
reconfigure the walkways, driveways, roadways, and parking areas at any time located on
the S&S One Parcel, and nothing herein shall be interpreted as prohibiting or preventing
any such rearrangement or reconfiguration; provided, however, that no such
rearrangement or reconfiguration shall eliminate access to the Exchange #517 Parcel
across the S&S One Parcel or result in the Exchange #517 Parcel being in violation of
any city, county or state ordinances, codes, regulations, statutes or laws applicable to any
of the purposes stated in this Agreement. The parties agree that the Exchange #517
Parcel and the S&S One Parcel shall be treated as a single development for purposes of
compliance with City of Rexburg codes and regulations with respect to those matters
included in the easements described in this paragraph.
2. Easement Over Exchange #517 Parcel. Exchange #517 does hereby
establish for the benefit of the S&S One Parcel and grant and convey to the owners from
time to time of the S&S One Parcel and such owners' tenants, the invitees of such owners
and tenants, and the providers of emergency services, a permanent, perpetual,
nonexclusive easement appurtenant to the S&S One Parcel over and across, and for, the
pedestrian walkways, sidewalks, or paths and vehicular driveways, roadways, fire lanes,
fire hydrants, parking areas, and waste disposal areas as are located on or may be located
on the Exchange #517 Parcel from time to time (the "Exchange #517 Parcel Easement
Area") for the purpose of pedestrian and passenger vehicular ingress and egress to and
from the S&S One Parcel, vehicular parking, and disposal of waste in the designated
waste disposal receptacles located on the Exchange #517 Parcel and those matters further
described in paragraphs 6, 7, 8, 9, 10 and 11 below (the "S&S One Easements"),
Exchange #517 reserves the right to rearrange and reconfigure the walkways, driveways,
roadways, parking areas, and waste disposal areas at any time located on the Exchange
#517 Parcel, and nothing herein shall be interpreted as prohibiting or preventing any such
rearrangement or reconfiguration; provided, however, that no such rearrangement or
reconfiguration shall result in the S&S One Parcel being in violation of any city, county
or state ordinances, codes, regulations, statutes or laws applicable to any of the purposes
stated in this Agreement. The parties agree that the Exchange #517 Parcel and the S&S
One Parcel shall be treated as a single development for purposes of compliance with City
Cross Easement Agreement — Page 2 374538
of Rexburg codes and regulations with respect to those matters included in the easements
described in this paragraph.
I Maintenance of S&S One Parcel Easement Area. The owners from time to
time of the S&S One Parcel shall cause the driveways, roadways, fire lanes, and parking
areas of the S&S One Parcel Easement Area, as the same may be hereafter constructed, to
be paved and maintained in a good usable condition at such owners' sole cost and
expense. Should ownership of the S&S One Parcel (or portions thereof) become vested
in more than one owner, then for purposes of this Agreement each owner shall be
responsible only for that portion of the S&S One Parcel Easement Area located on that
owner's parcel.
4. Maintenance of Exchange #517 Parcel Easement Area. The owners from
time to time of the Exchange #517 Parcel shall cause the driveways, roadways, fire lanes,
parking areas, and waste disposal areas of the Exchange #517 Parcel Easement Area to be
paved and maintained in a good usable condition at such owners' sole cost and expense.
Should ownership of the Exchange #517 Parcel (or portions thereof) become vested in
more than one owner, then for purposes of this Agreement each owner shall be
responsible only for that portion of the Exchange #517 Parcel Easement Area located on
that owner's parcel.
5. Reciprocal Easements. No fence, barricade or other barrier which would
prevent, impair or obstruct the passage of pedestrian or passenger vehicular travel for the
purposes herein shall be erected or permitted within or across the S&S One Parcel
Easement Area or the Exchange #517 Parcel Easement Area (the S&S One Parcel
Easement Area and the Exchange #517 Parcel Easement Area being sometimes referred
collectively as the "Easement Area"); provided however, the foregoing provision shall
not prohibit the installation of reasonable forms of traffic control, including, but not
limited to, speed and safety controls, directional signage, curbing to direct traffic to the
appropriate portion of the Easement Area and controls required by any governmental or
quasi -governmental authority. Each party reserves the right to temporarily close off its
portion of the Easement Area for repair; provided, however, that prior to closing off any
portion of the Easement Area, as above provided, such party shall give written notice to
the other party of its intention to do so and shall attempt to coordinate such closing with
the other party so that no unreasonable interference in the passage of pedestrians or
vehicles shall occur. Exchange 4517 and S&S One each reserve the right to use that
portion of the Easement Area located on its respective property for any purpose not
inconsistent with the use for which the grants herein are made. Exchange #517 and S&S
One each specifically reserve the right to grant additional easements or rights-of-way
upon or across that portion of the Easement Area located on its respective property to
such other persons or entities and for such purposes as Exchange #517 or S&S One,
respectively, may elect; provided that such additional easements and their purposes may
not be inconsistent or in conflict with or inhibitory of the purposes of this Agreement.
_Cross Easement Agr ement — Page 3
374538
6. Proportionate Reimbursement of Waste Disnosal Fees. As described
above, the S&S One Easements includes access to the waste disposal areas on the
Exchange #517 Parcel for the disposal of waste in the designated waste disposal
receptacles located thereon. From time to time upon the request of the owner of the
Exchange #517 Parcel, the owner of the S&S One Parcel shall reimburse the owner of the
Exchange #517 Parcel for a portion of the waste disposal fees incurred by the owner of
the Exchange #517 Parcel. Said portion shall be based on a fraction, the numerator of
which is the number of apartment units on the S&S One Parcel that are permitted for
occupancy, and the denominator of which is the total number of apartment units on both
the S&S One Parcel and the Exchange #517 Parcel that are permitted for occupancy.
7. Fire Hydrants and Landscape Water Facilities. Exchange #517 and S&S
One agree that one (1) or more fire hydrants shall be installed and maintained on the
Exchange #517 Parcel and the S&S One Parcel for the common use and benefit of each.
Exchange #517 and S&S One agree that landscaped areas on both the Exchange #517
Parcel and the S&S One Parcel will receive water through a common water facility and
meter to be located on the Exchange #517 Parcel or the S&S One Parcel as the parties
mutually agree (collectively, the "Landscape Water Facilities"). The Landscape Water
Facilities will measure water used for landscaping on the Exchange #517 Parcel and the
S&S One Parcel. The costs of constructing and installing the Landscape Water Facilities
(including without limitation the costs of connecting the Landscape Water Facilities to
any public water system), all charges for usage of landscape water and all costs incurred
in operating and maintaining the Landscape Water Facilities shall be paid by the parties
in proportion to the total square footage of property watered by the Landscape Water
Facilities on the parties' respective properties.
8. Telecommunications. Exchange #517 and S&S One agree that telephone
and internet connectivity will be provided to the apartments located on the Exchange
#517 Parcel and the S&S One Parcel through common hubs and facilities (collectively,
the "Telecommunications Facilities"). Unless the parties otherwise agree in a signed
and acknowledged instrument that references this Agreement, the Telecommunication
Facilities hubs shall be located within a building or buildings on the Exchange #517
Parcel. The Telecommunications Facilities shall be operated and maintained in
accordance with the provisions of paragraph I1 below, regardless of their location.
Except for such charges as may be made to specific apartment units, Exchange #517 and
S&S One agree to share all charges for telephone and internet usage and all costs
incurred in maintaining the Telecommunications Facilities based on a fraction (the "Cost
Allocation Fraction"), the numerator of which is the number of apartment units on a
party's parcel that are permitted for occupancy, and the denominator of which is the total
number of apartment units on both parties' parcels that are permitted for occupancy. For
example, if said charges and costs for a given month totaled $1,000, and the Exchange
#517 Parcel contained sixty-three (63) apartment units permitted for occupancy and the
Cross Easement Aareement — Page 4 374538
S&S One Parcel contained twenty-one (21) apartment units permitted for occupancy,
then under such circumstances, Exchange #517 would be responsible for $750 of such
charges and costs and S&S One would be responsible for $250 of such charges and costs.
9. Satellite/Cable Facilities. Exchange #517 and S&S One agree that access
to satellite and/or cable television will be supplied to the apartments located on the
Exchange 4517 Parcel and the S&S One Parcel through a common hub and facilities
(collectively, the "Satellite/Cable Facilities"). Unless the parties otherwise agree in a
signed and acknowledged instrument that references this Agreement, the satellite and/or
cable television hub shall be located on the Exchange #517 Parcel. The Satellite/Cable
Facilities shall be operated and maintained in accordance with the provisions of
paragraph 11 below, regardless of their location. If the parties are billed separately for
satellite/cable television usage and costs of maintenance of the Satellite/Cable Facilities,
each shall be responsible for the amounts so billed. If Exchange #517 and S&S One are
not billed separately, they will share the usage charges and maintenance costs according
to the Cost Allocation Fraction described above.
10. Hydronics System. Exchange #517 and S&S One agree that a hydronics
heating system will be supplied to the apartments in Exchange #517 Building One and
S&S Building One through a common water heating system and facilities to be located
on the S&S One Parcel (the "Hydronics One Facilities"). The costs of constructing and
installing the Hydronics One Facilities shall be shared equally by the parties. The
Hydronics One Facilities shall be operated and maintained in accordance with the
provisions of paragraph 11 below. The parties shall share equally all costs of operating,
maintaining, repairing and replacing the portions of the Hydronics One Facilities that are
used jointly (for example, boiler room and equipment and facilities situated therein).
Each party shall pay all costs of operating, maintaining, repairing and replacing those
portions of the Hydronics One Facilities situated on such party's property or in such
party's apartment building that apply only to that apartment building. If the parties are
billed separately for use of the Hydronics One Facilities, each shall be responsible for the
amounts so billed. If the parties are not billed separately, they will share the use charges
equally. S&S One shall have no responsibility, obligation or liability with respect to any
hydronics or other heating system(s) that may be used jointly or separately by Exchange
#517 Buildings Two and Three. If Exchange #517 Building Four and S&S Building Two
are constructed, and the parties so agree in a written instrument signed, acknowledged
and recorded by the parties, the Exchange #517 Building Four and S&S Building Two
may share a hydronics heating system in accordance with the provisions of this paragraph
10 pertaining to the Hydronics One Facilities shared by Exchange #517 Building One and
S&S Building One.
11. Operation and Maintenance of Joint Facilities. The Telecommunications
Facilities, Satellite/Cable Facilities, and the Hydronics Facilities (collectively, the "Joint
Cross Easement Agreement—Page 5 374538
Facilities"), shall be operated and maintained in accordance with the following terms,
conditions, and provisions:
11.1 The owners from time to time of the Exchange #517 Parcel and the
owners from time to time of the S&S One Parcel shall be jointly responsible for the
operation and maintenance of the Joint Facilities. The costs of such operation and
maintenance shall be borne by such owners as described in paragraphs 8, 9 and 10 above.
11.2 If the owner(s) of the Exchange #517 Parcel and the owner(s) of the
S&S One Parcel at any time cannot agree on a course of action for maintenance of the
Joint Facilities, or any portion thereof, either party may undertake such maintenance as
such party reasonably deems necessary. In such event, the party undertaking
maintenance shall be entitled to collect from the other party such other party's portion of
said maintenance costs as determined pursuant to the applicable provisions of paragraphs
2, 8, and 9 above.
11.3 Exchange #517 and S&S One do hereby establish, each for the
benefit of the other and the other's successors and assigns, and grant and convey to the
other, the other's successors and assigns, and their selected maintenance, repair and
service providers and emergency service providers, a permanent, perpetual, nonexclusive
easement appurtenant to the Exchange #517 Parcel and the S&S One Parcel, respectively,
over and across said parcels and the improvements from time to time located thereon, for
the purpose of accessing and performing maintenance, repairs and other services on the
Joint Facilities, or any portion thereof, in accordance with the terms of this Agreement,
and for the lawful use of fire hydrants located on the Exchange #517 Parcel or the S&S
One Parcel.
11.4 Either party hereto, or their respective successors and/or assigns, at
such party's sole expense, shall have the right to change the location of any portion of the
Joint Facilities that is located on such party's parcel, provided that such relocation does
not cause a material injury to the other party or unreasonably increase the cost, or
interfere with the use and enjoyment, of the Joint Facilities by the other party.
12. Costs of Development and Construction of Joint Facilities. The costs to
develop and construct the Joint Facilities (the "Joint Facilities Costs") shall be paid
initially seventy-five percent (75%) by Exchange #517 and twenty-five percent (25%) by
S&S One. This costs sharing is based on the construction by Exchange #517 of
Exchange #517 Apartment Buildings One, Two and Three and by S&S One of S&S One
Building One. If additional apartment buildings are constructed, for example Exchange
#517 Building Four or S&S One Building Two, the parties shall reimburse each other as
the case may be .so that at any given time each party shall have ultimately paid its
proportionate share (without interest) of the Joint Facilities Costs based on the total
number of apartment units constructed on each party's property at such time. For
.Cross Easement Agreement — Page 6 374538
example, if S&S One constructed S&S One Building Two resulting in forty-two (42)
apartment units on the S&S One Parcel and sixty-three (63) apartment units on the
Exchange #517 Parcel, then S&S One would reimburse Exchange #517 such sum so that
at that time S&S One shall have paid forty percent (40%) and Exchange #517 shall have
paid sixty percent (60%) of the Joint Facilities Costs. If, thereafter, Exchange #517
constructed Exchange #517 Building Four resulting in forty-two (42) apartment units on
the S&S One Parcel and eighty-four (84) apartment units on the Exchange #517 Parcel,
then Exchange #517 would reimburse S&S One such sum so that ultimately Exchange
#517 shall have paid sixty-six and two-thirds percent (66 2/3%) and S&S One shall have
paid thirty-three and one-third percent (33 113%) of the total Joint Facilities Costs.
13. Duration; Run with Land, BindingEffect. The easements described in this
Agreement are hereinafter referred to collectively as the "Easements." The Easements,
and the covenants and restrictions set forth herein, shall be effective upon the date hereof
and shall be perpetual in duration. Notwithstanding anything contained herein to the
contrary, the Easements, and the covenants and restrictions set forth herein, (i) shall inure
to the benefit of and be binding upon each of the S&S One Parcel, the Exchange #517
Parcel, the respective owners thereof, and their respective successors, successors -in -title,
assigns and tenants, and the invitees of such parties; and (ii) shall remain in full force and
effect and shall be unaffected by any change in ownership or possession of all or any of
the S&S One Parcel or Exchange #517 Parcel, or by any change of use, demolition,
reconstruction, expansion or other circumstances. The Easements are appurtenant to and
will run with the Exchange #517 Parcel and the S&S One Parcel, respectively, and any
portions thereof, whether or not the Easements are referenced in any conveyance of the
Exchange #517 Parcel or the S&S One Parcel and/or any portion of either of them.
14. Remedies, Enforcement. Exchange #517 and S&S One shall have all rights
and remedies available at law or in equity for the enforcement or observance of this
Agreement, including, without limitation, suit for specific performance, injunctive relief
and suit for compensatory damages. If there is any litigation or other action taken by any
party to enforce or interpret any provisions of or rights arising under this Agreement, the
prevailing party shall be entitled to recover from the other party all costs and expenses,
including but not limited to reasonable attorney fees and costs, which the prevailing party
may incur in enforcing this Agreement or in pursuing any remedy allowed by law,
whether such is incurred by the filing of suit or otherwise.
15. Notices. All notices permitted or required to be given hereunder shall be in
writing and shall be deemed given (i) when delivered in person, (ii) one (1) business day
after being delivered to a nationally recognized overnight courier, or (iii) three (3)
business days after being deposited in the United States mail, postage pre -paid, registered
or certified mail, return receipt requested. All notices shall be addressed as follows:
Cross -Easement Agreement — Page 7 374638
If to Exchange #517: Exchange #517, LLC
P.O. Box 339
Blackfoot, Idaho 83221
If to S&S One: S&S One LLC
3614 North 3000 West
Rexburg, Idaho 83440
Each of the above -listed addressees may change its address for notice purposes
under this Paragraph 15 by delivering to the other addressee(s) a written notice of change
of address and number, in a manner specified in this Para rag nh 15.
16. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Idaho.
17. Non -Dedication. Nothing contained in this Agreement shall be deemed to
be a gift or dedication of any portion of the S&S One Parcel or Exchange #517 Parcel to
the general public or for any public use or purpose whatsoever, it being the intention of
Exchange #517 and S&S One and their respective successors and assigns that nothing in
this Agreement, expressed or implied, shall confer upon any person, other than the
owners of the S&S One Parcel and the Exchange #517 Parcel and their successors and
assigns, tenants, licensees, and occupants, any rights or remedies under or by reason of
this Agreement.
18. Headings. The headings in this Agreement are for convenience only, shall
in no way define or limit the scope or content of this Agreement, and shall not be
considered in any construction of this Agreement of any part hereof.
19. Modifications. This Agreement may be amended, modified, or terminated
at any time only by a declaration in writing, executed and acknowledged by all of the
owners of the Exchange #517 Parcel and the S&S One Parcel or their respective
successors and assigns.
20. Severabilitv. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to persons or
circumstances other than those to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
21. Non -Waiver. Failure by any party to complain of any action, non -action or
breach of any other party shall not constitute a waiver of any aggrieved party's rights
hereunder. Waiver by any party of any right arising from any breach of any other party
Cross Easement Aereement— Page 8
374538
shall not constitute a waiver of any other right arising from a subsequent breach of the
same obligation or for any other default, past, present or future.
22. Intent. This Agreement does not in any way grant or convey any part of the
underlying fee simple estates owned by either Exchange #517 or S&S One.
23. Non -Merger. The easements created hereby are not merged with, and shall
not be deemed to be merged with, the fee simple title to the Easement Area.
24. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Cross Easement Agreement — Page 9
374538
IN WITNESS WHEREOF, the undersigned have signed and sealed this
Agreement as of the day and year first above written.
EXCHANGE #517:
EXCHANGE #517, LLC
By Title Financial Specialty Services, Member
�5
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'.'
OIR
S&S One:
S&S ONE LLC,
an Idaho limited liability company
Nt�By:
Sylvan F. Seely, Manager
By: C V 1 -
Jared Sommer, Manager
Cross Easement Aereement — page 10 374538
STATE OF IDAHO
County of Bingham
On this 2"d day of May, 2012, before me, SkkKklnl C nlu& , a notary
public, in and for said State, personally appeared Shauna Romrell, known or identified to
me to be the President of Title Financial Specialty Services, the member of Exchange
#517, LLC, the limited liability company that executed the instrument or the person who
executed the instrument on behalf of said limited liability company and acknowledged to
me that such limited liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year in this certificate first above written.
`r4 OtARY Notary Public for Idaho
Residing at of
pUav�G:' p� My Commission Expires: t 1q
sTATE
STATE OF IDAHO
County of Madison
On this 2nd day of May, 2012, before me, J CLr,6L &41rfl
, a notary
public, in and for said State, personally appeared Sylvan F. Seely, known or identified to
me to be a Manager of S&S One LLC, the limited liability company that executed the
instrument or the person who executed the instrument on behalf of said limited liability
company and acknowledged to me that such limited liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year in this certificate first above written.
��°013�shofr •;
f �N0'rARY �;
t, pt113Ur, i
STATE Ov \D,
Cross Easement Agreement — Page 11
Notary blic for Idaho UJ
Residing at
My Commission Expires
Residing in Fremont County
Commission Expires 6-23-2017
374538
STATE OF IDAHO
County of Madison
On this 2nd day of May, 2012, before me, -" i-4 gr7 , a notary
public, in and for said State, personally appeared Jared Sommer, known or identified to
me to be. a Manager of S&S One LLC, the limited liability company that executed the
instrument or the person who executed the instrument on behalf of said limited liability
company and acknowledged to me that such limited liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year in this certificate first above written.
Nota4ybklit for Idaho
Residing at
My Commission Expires:
�Q�n 13/aho
NOTARY';
PUBLIC ?
nj
IDP�O;
Residing in Fremont County
Commission Expires 6-23-2017
Cross Easement A reement— Page 12 374538
EXHIBIT A
Exchange #517 Parcel
Part of Lots 3 & 4, Block 5 and the North 1/2 of a portion of 3`d South Street of the
Southend Addition to the City of Rexburg, Madison County, Idaho per the recorded plat
thereof, further described as:
Commencing at the Northwest corner of said Lot 4, and running thence N89045'45"E
317.21 feet along the North line of said Lot 4 to the Westerly Right -of -Way of the Union
Pacific Railroad; thence S30°08'27"W 439.91 feet to the center of 3rd South Street; thence
S89045'29"W 196.94 feet; thence N00015'04"W 313.52 feet to the North boundary of
property described in a Warranty Deed recorded as Instrument Number 347328; thence
N89045'45"E 102.28 feet along said North boundary to the West line of said Lot 4;
thence N00°14'48"W 66.00 feet along said West line to the Point of Beginning.
Cross Easement Agreement — Page 13
374538
EXHIBIT B
S&S One Parcel
Part of Lot 3, Block 5 and the North 1/2 of a portion of 3rd South Street of the Southend
Addition to the City of Rexburg, Madison County, Idaho per the recorded plat thereof,
further described as:
Commencing at the Southwest corner of said Block 5, and running thence N00°15'04"W
264.04 feet along the West line of said Block 5 to the North boundary of property
described in a Warranty Deed recorded as Instrument Number 347328; thence
N89°45'45"E 194.60 feet along said North boundary; thence S00°15'04"E 313.52 feet to
the center of 3`d South Street; thence S89°45'29"W 194.60 feet to the West line of said
Block 5 extended; thence N00° 15'04"W 49.50 feet along the extension of said Block 5 to
the Point of Beginning.
Cross Easement Agreement — Page 14 374538
Instrument # 405631
REXBURG, MADISON, IDAHO
10.21-2016 11:51:52 AM No. of Pages: 6
Recorded
WHEN RECORDED RETURN TO: KIM H. MUIRr . DUPREE S EWART Fee: 25,00 AYL MORRIS
DUPree Stewart Taylor & Morris Excio Recorder Deputy
P.O. Box 723
Rexburg, Idaho 83440
AMENDMENT TO CROSS EASEMENT AGREEMENT
THIS AMENDMENT TO CROSS EASEMENT AGREEMENT ("Amendment")
is made as of the N day of boder , 2016, by Desert Rose Enterprises, LLC, an Idaho
limited liability company ("Desert Rose"), as successor in interest to Exchange #517,
LLC, and Idaho limited liability company ("Exchange #517') and S&S One LLC, an
Idaho limited liability company ("S&S One").
RECITALS:
A. Exchange 4517 and S&S One previously entered into a Cross Easement
Agreement dated May 2, 2012 ("Agreement"), related to certain real property located in
the City of Rexburg, Madison County, Idaho, a portion of which was identified in the
Agreement as the Exchange #517 Parcel and a portion of which was identified in the
Agreement as the S&S One Parcel (Exchange 4517 Parcel and S&S One Parcel are
collectively referred to as the "Properties").
B. Desert Rose is the successor in interest to Exchange #517 in that Desert
Rose acquired ownership of the Exchange #517 Parcel.
C. In connection with the proposed construction of additional buildings on the
Properties, Desert Rose and S&S One have obtained new legal descriptions that relate to
portions of the Properties.
D. Desert Rose and S&S One desire to amend the Agreement to reflect the
current ownership of the Properties and to confirm that the Agreement continues to apply
to the Properties under the current ownership and with the new legal descriptions.
E. Section 19 of the Agreement permits the owners of the Properties or their
respective successors and assigns to amend the Agreement by a declaration in writing,
executed and acknowledged by all of the owners of the Properties or their respective
successors and assigns.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants
and agreements herein set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties do hereby agree to amend
the Agreement as follows:
Amendment to Cross Easement Agreement — Page 1
1. Desert Rose Parcel. That certain real property located in the City of
Rexburg, Madison County, Idaho, more particularly described on Exhibit A attached
hereto and incorporated herein by reference shall be substituted for and replace the real
property described on Exhibit A to the Agreement and shall be referred to as the "Desert
Rose Parcel." The phrase Desert Rose Parcel shall be substituted for the phrase
Exchange 4517 Parcel in all places in the Agreement where the latter phrase appears, and
the phrase Desert Rose shall be substituted for the phrase Exchange #517 in all places in
the Agreement where the latter phrase appears.
2. S&S One Parcel. That certain real property located in the City of Rexburg,
Madison County, Idaho, more particularly described on Exhibit B attached hereto and
incorporated herein by reference shall be substituted for and replace the real property
described on Exhibit B to the Agreement (the "S&S One Parcel').
3. Desert Rose Address. The following address for notices to Desert Rose is
substituted in Section 15 of the Agreement for the address for Exchange #517, LLC:
Desert Rose Enterprises, LLC
566 N. 3400 E.
Lewisville, Idaho 83431
4. Effect. Except as amended by this Amendment, the Agreement shall remain
in full force and effect and be unchanged.
5. Miscellaneous. Capitalized terms not otherwise defined herein shall have
the meanings assigned thereto in the Agreement. This Amendment shall be construed
and enforced under the laws of the State of Idaho. This Amendment may be executed in
counterparts, each of which shall be deemed an original, and all of such counterparts
together shall constitute one and the same instrument.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Amendment to Cross Easement Agreement — Page 2
IN WITNESS WHEREOF, the undersigned have signed and sealed this
Agreement as of the day and year first above written.
DESERT ROSE:
DESERT ROSE ENTERPRISES, LLC,
2Mdaho limited liabi ity company
By:114 —4
James T.
S&S One:
S&S ONE LLC,
an Idaho
ollimited liability company
By: ( 4 J40-7
Jared Sommer, Manager
Amendment to Cross Easement Agreement — Page 3
STATE OF IDAHO §
County of oxo- ti §
On this ;2t-"" day of dbEl 2016, before me, ('p" �, %ay/,r , a
notary public, in and for said State, personally appeared James T. Oineiting, known or
identified to me to be a Manager of Desert Rose Enterprises, LLC, the limited liability
company that executed the instrument or the person who executed the instrument on
behalf of said limited liability company and acknowledged to me that such limited
liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year in this certificate first above written.
STATE OF IDAHO
County of Madison
f
Notary ublico Idaho
Residing at 1W >_,
My Commission In xpires:G-of-acres
On this ,215t day of&(w, , 2016, before me, erg 4 �,. �, �r a notary
public, in and for said State, personally appeared Jared 86mmef, known or identified to
me to be a Manager of S&S One LLC, the limited liability company that executed the
instrument or the person who executed the instrument on behalf of said limited liability
company and acknowledged to that such limited liability company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year in this certificate first above written.
Amendment to Cross Easement Agreement— Page 4
Notar(yublOor Idaho
Residing at d r4,-. TJG
My Commission xpires: of -a aa,;)
EXHIBIT A
Desert Rose Parcel
Parcel l
Commencing at the Northwest corner of Lot 3 of the Southend Addition to the City of
Rexburg as per the recorded plat thereof, running thence along the West line of said Lot 3
S00015'04"E 90.05 feet, thence leaving said West line N89°45'30"E 190.16 feet to the
True Point of Beginning, thence continuing N89°45'30"E 219.13 feet, thence
S30007'52"W 91.57 feet, thence S89°45'30"W 172.80 feet, thence N00°15'04"W 79.00
feet to the True Point of Beginning.
Parcel Contains 0.355 Acres.
Parcel 2
Beginning at the Northwest corner of Lot 3 of the Southend Addition to the City of
Rexburg as per the recorded plat thereof, said Northwest corner being the True Point of
Beginning, running thence N89°45'45"E 614.16 feet along the North line of Lots 3 and 4
of said Southend Addition to the Westerly right of way of the Eastern Idaho Railroad,
thence leaving said North line along said Westerly right of way S30°08'27"W 439.91
feet, thence leaving said Westerly right of way S89°45'30"W 196.94 feet, thence
N00015'04"W 210.50 feet, thence N89°45'30"E 168.32 feet, thence N30°07'52"E 91.57
feet, thence S89°45'30"W 409.29 feet to the West line of Lot 3, thence along said West
line N00° 15'04"W 90.05 feet to the Trust Point of Beginning.
Parcel Contains 2.740 Acres.
Amendment to Cross Easement Agreement — Page 5
EXHIBIT B
S&S One Parcel
Parcel 1
Commencing at the Northwest corner of Lot 3 of the Southend Addition to the City of Rexburg
as per the recorded plat thereof, running thence along the West line of said Lot 3 S00°15'04"E
169.05 feet to the True Point of Beginning, thence leaving said West line N89°45'30"E 194.66
feet, thence S00°15'04"E 210.50 feet, thence S89°45'30"W 194.66 feet to said West line, thence
along said West line N00° 15'04"W 210.50 feet to the True Point of Beginning.
Parcel Contains 0.941 Acres.
Parcel 2
Commencing at the Northwest corner of Lot 3 of the Southend Addition to the City of Rexburg
as per the recorded plat thereof, running thence along the West line of said Lot 3 S00015'04"E
90.05 feet to the True Point of Beginning, thence leaving said West line N89°45'30"E 190.16
feet, thence S00015'04"E 79.00 feet, thence S89°45'30"W 190.16 feet to said West line, thence
along said West line N00°15'04"W 79.00 feet to the True Point of Beginning.
Parcel Contains 0.345 Acres.
Amendment to Cross Easement Agreement — Page 6