Easement. (a) Declarant reserves a perpetual non-exclusive easement for the Owners of the Benefited Property to install, operate, maintain, repair and replace storm drain lines under, across and within the Storm Drain Area. An Owner of Benefited Property shall have access to such portions of the Burdened Property as reasonably required to operate, maintain, repair and replace storm drain lines in the Storm Drain Area; provided, that except in an emergency, such access shall be only after prior written notice to the Owner of the Burdened Property upon which such Storm Drain Area is located and in the presence of a representative of the Owner of the Burdened Property. In the case of an emergency, the Owner of the Benefited Property shall endeavor to provide prior telephonic notice to the Owner of the Burdened Property of its intended access for emergency purposes, and shall provide written confirmation of its emergency activities as soon as practicable thereafter. (b) When performing work in the Storm Drain Area, an Owner of Benefited Property shall use commercially reasonable efforts to minimize any disruption to the Burdened Property. After the performance of any work in the Storm Drain Area by an Owner of Benefited Property, such Owner performing the work shall cause the affected portions of the Storm Drain Area to be properly compacted and shall restore all improvements and landscaping affected in any way by such work to at least the condition of such improvements and landscaping as existed prior to such installation (including, without limitation, replacing any damaged trees with trees of similar size and type to the trees damaged), and the Owner performing the work shall warranty that all such work shall be free of material defects for a period of one (1) year following the completion of such work. (c) In its use of the storm drains in the Storm Drain Area, an Owner of Benefited Property shall: (i) regularly inspect, and, at all times, maintain such Owner s facilities and related equipment in good order and repair and in proper operating condition, including, without limitation, clean-out, maintenance and repair of piping, catch basin filters and oil/water separators of such Owner; (ii) not permit any claim, lien or other encumbrances arising from such Owner s use of the Storm Drain Area to accrue against or attach to the Burdened Property; (iii) comply with all laws, ordinances, regulations, requirements and permits applicable to the discharge from the Benefited Property owned by such Owner into the storm drain used by such Owner from and after the date hereof, including, without limitation, permits issued by the Oregon Department of Environmental Quality ( DEQ ) and the City of Portland Bureau of Environmental Services ( BES ) (collectively, the Regulatory Requirements ); (iv) provide for emergency response to prevent spills, releases or other unlawful discharges from entering into the storm drain lines and to prevent spills from discharging from an outfall into or beyond the slip (including provisions of appropriate sorbent booms or other response in the event of a discharge); (v) periodically monitor Owner s stormwater quality, to the extent required by permits issued by the DEQ and/or the BES or pursuant to any other Regulatory Requirements; and (vi) indemnify, protect, defend and hold harmless the Declarant and the other Owners of the Burdened Property for, from and against claims, liabilities, costs and expenses arising out of event occurring after the date hereof in connection with such Owner s maintenance, repairs, operation, or replacement of storm drain lines and related equipment in the Storm Drain Area and performance of such Owner s obligations of this Section 1(c). Any stormwater quality monitoring data which an Owner of the Benefited Property is required to provide to DEQ or BES pursuant to Regulatory Requirements shall be provided to the Owner of the Burdened Property not later than concurrently with its submission to DEQ and/or BES or other applicable regulatory agency. (d) The Owner of the Burdened Property on which a storm drain is located on shall have the right to relocate a storm drain in the Storm Drain Area to a different location of the Property, as necessary to reasonably accommodate the needs of the Owner of the Burdened Property and/or any of their tenants, subtenants, successors or assigns. so long as: (i) the Owner relocating the Storm Drain Area pays for the entire cost of the relocation of such storm drain, and (ii) such relocation is performed so that at no time is the continuous use of such storm drain impaired or impeded in any manner. (e) If an Owner of Benefited Property fails to perform any obligation set forth in this Section 1, an Owner of the Burdened Property may send the non-performing Owner written notice of non-performance pursuant to the notice provisions of Section 4(h). If within thirty (30) days of such notice the non-performing Owner fails to send the Owner sending the non-performance notice a written notice either disputing the non-performance (which dispute shall be resolved by arbitration as provided herein) or acknowledging such non-performance and agreeing to commence the cure of such non-performance and diligently pursue such cure to completion, the Owner of the Benefited Property sending the non-performance notice shall have the right, but not the obligation, to institute arbitration hereunder to determine whether performance is required and, if required, to compel performance. If the Owner of the Benefited Property resolves an actual or alleged violation of any Regulatory Requirement with the agency responsible for enforcing such Regulatory Requirement, such resolution shall be conclusively deemed an adequate cure hereunder with respect to such Regulatory Requirement, regardless of whether the resolution is achieved in an administrative or judicial proceeding or is voluntary or involuntary on the part of the Owner of the Benefited Property. Nothing herein shall limit the liability of the Owner of the Benefited Property for claims brought by federal or other governmental agencies, third-party claims, or claims by the Owner of the Burdened Property not resolved in the resolution of the Regulatory Requirement violation. (f) In any emergency, an Owner of the Burdened Property shall make commercially reasonable efforts to notify the non-performing Owner of Benefited Property of the emergency and necessary performance. No written notice to a non-performing Owner pursuant to Section 4(h) shall be required before the Owner of the Burdened Property shall have the right, but not the obligation, to cure any non-performance that resulted in such emergency, including, without limitation, such actions as may be necessary to prevent unlawful spills, releases or discharges by operating an emergency shut off valve. The Owner of the Burdened Property shall have reasonable access to the Benefited Property as necessary to access any emergency shut off valve located on the Benefited Property. In the event of an emergency in which an Owner of the Burdened Property cures or takes affirmative action to attempt to cure non-performance, the Owner of the Burdened Property shall have the right to seek reimbursement of the reasonable costs of performance from the non-performing Owner of the Benefited Property. The Owner of the Burdened Property shall indemnify and hold the Owner of the Benefited Property harmless to the extent that the actions of the Owner of the Burdened Property pursuant to this Section are negligent and exacerbate a spill, release or discharge. (g) To the extent more than one Owner uses a storm drain, all obligations hereunder with respect to such storm drain shall be joint and several; provided that if one such Owner expends any amount pursuant to this Declaration, such Owner may invoice the other Owners using such storm drain for such other Owner s pro rata share of the cost of such expenditure (based on the respective Owners volume of use of such storm drain) and the failure of the non-performing Owner to pay such invoice within thirty (30) days of written request therefor shall entitle the performing Owner to the rights and remedies set forth in Section 2 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Schnitzer Steel Industries Inc)
Easement. (a) Declarant reserves At Settlement, Dranoff shall grant to the Township or to such other entity as the Township shall designate a perpetual non-exclusive easement for (the Owners “Parking Easement”) in form and substance reasonably acceptable to Dranoff which among other things does not interfere with the quiet enjoyment of the Benefited Property to installresidential tenants of the Cricket Portion of the Project (A) for parking, operateassociated ingress and egress, maintaincollection and repair of meters (or other mechanism for collecting parking fees) and related utilities, repair and replace storm drain lines over, under, across and within upon (i) the Storm Drain Cricket Public Parking Facility and (ii) the parking spaces and drive aisle (the “Retained Area. An Owner ”) existing as of Benefited Property the date hereof and located on the Cricket Lot outside the footprint of the Building, as shown on Exhibit “B,” and (B) for exercise of the rights set forth in Section 1.6(t) of this Agreement, over, under, across and upon the entire Cricket Lot, containing the following terms:
(a) The Township or its designee shall have access the right to determine the charges, if any, for parking on the Cricket Public Parking Facility and the Township or its designee shall receive the revenue, if any, from such portions of the Burdened Property as reasonably required to operate, maintain, repair and replace storm drain lines in the Storm Drain Area; provided, that except in an emergency, such access shall be only after prior written notice to the Owner of the Burdened Property upon which such Storm Drain Area is located and in the presence of a representative of the Owner of the Burdened Property. In the case of an emergency, the Owner of the Benefited Property shall endeavor to provide prior telephonic notice to the Owner of the Burdened Property of its intended access for emergency purposes, and shall provide written confirmation of its emergency activities as soon as practicable thereafterparking.
(b) When performing work Dranoff will perform all maintenance, repairs and replacements, including removal of snow and ice in the Storm Drain Areacovered and uncovered areas, an Owner of Benefited Property shall use commercially reasonable efforts to minimize any disruption but Township will reimburse Dranoff only for actual maintenance, repair and replacement expenses directly related or allocable to the Burdened PropertyCricket Public Parking Facility. After In the performance event that Dranoff does not perform such obligations in a timely, good and workmanlike manner, the Township shall have the right to perform any needed maintenance, repairs and replacements and Dranoff shall promptly reimburse the Township for any costs of any work in the Storm Drain Area by an Owner of Benefited Property, such Owner performing the work shall cause the affected portions of the Storm Drain Area to be properly compacted and shall restore all improvements and landscaping affected in any way by such work to at least which are not the condition of such improvements and landscaping as existed prior to such installation (includingTownship’s responsibility hereunder. Notwithstanding the foregoing, without limitation, replacing any damaged trees with trees of similar size and type to the trees damaged), and the Owner performing the work shall warranty that all such work Dranoff shall be free of material defects for a period of one (1) year obligated, at Dranoff’s sole cost and expense, to re-pave and re- stripe the Retained Area promptly following the completion of such workconstruction of the Cricket Portion of the Project.
(c) In Dranoff will have an obligation to maintain and repair, at its use expense, any structures which support or cover the Cricket Public Parking Facility.
(d) The Township and Dranoff will negotiate the Parking Easement in good faith within 180 days after the date of this Agreement. The Township reserves the right to modify the Parking Easement to be the functional (but not necessarily legal) equivalent of the storm drains easement described above, subject to satisfaction of the requirements set forth in the Storm Drain Area, an Owner of Benefited Property shall: (i) regularly inspect, and, at all times, maintain such Owner s facilities and related equipment in good order and repair and in proper operating conditionthis Section 1.5, including, without limitation, clean-out, maintenance that the form and repair of piping, catch basin filters and oil/water separators of such Owner; (ii) not permit any claim, lien or other encumbrances arising from such Owner s use substance of the Storm Drain Area resulting documents are reasonably acceptable to accrue against or attach to the Burdened Property; (iii) comply with all laws, ordinances, regulations, requirements and permits applicable to the discharge from the Benefited Property owned by such Owner into the storm drain used by such Owner from and after the date hereof, including, without limitation, permits issued by the Oregon Department of Environmental Quality ( DEQ ) and the City of Portland Bureau of Environmental Services ( BES ) (collectively, the Regulatory Requirements ); (iv) provide for emergency response to prevent spills, releases or other unlawful discharges from entering into the storm drain lines and to prevent spills from discharging from an outfall into or beyond the slip (including provisions of appropriate sorbent booms or other response in the event of a discharge); (v) periodically monitor Owner s stormwater quality, to the extent required by permits issued by the DEQ and/or the BES or pursuant to any other Regulatory Requirements; and (vi) indemnify, protect, defend and hold harmless the Declarant and the other Owners of the Burdened Property for, from and against claims, liabilities, costs and expenses arising out of event occurring after the date hereof in connection with such Owner s maintenance, repairs, operation, or replacement of storm drain lines and related equipment in the Storm Drain Area and performance of such Owner s obligations of this Section 1(c). Any stormwater quality monitoring data which an Owner of the Benefited Property is required to provide to DEQ or BES pursuant to Regulatory Requirements shall be provided to the Owner of the Burdened Property not later than concurrently with its submission to DEQ and/or BES or other applicable regulatory agencyDranoff.
(d) The Owner of the Burdened Property on which a storm drain is located on shall have the right to relocate a storm drain in the Storm Drain Area to a different location of the Property, as necessary to reasonably accommodate the needs of the Owner of the Burdened Property and/or any of their tenants, subtenants, successors or assigns. so long as: (i) the Owner relocating the Storm Drain Area pays for the entire cost of the relocation of such storm drain, and (ii) such relocation is performed so that at no time is the continuous use of such storm drain impaired or impeded in any manner.
(e) If an Owner of Benefited Property fails to perform any obligation set forth in this Section 1, an Owner of the Burdened Property may send the non-performing Owner written notice of non-performance pursuant to the notice provisions of Section 4(h). If within thirty (30) days of such notice the non-performing Owner fails to send the Owner sending the non-performance notice a written notice either disputing the non-performance (which dispute shall be resolved by arbitration as provided herein) or acknowledging such non-performance and agreeing to commence the cure of such non-performance and diligently pursue such cure to completion, the Owner of the Benefited Property sending the non-performance notice shall have the right, but not the obligation, to institute arbitration hereunder to determine whether performance is required and, if required, to compel performance. If the Owner of the Benefited Property resolves an actual or alleged violation of any Regulatory Requirement with the agency responsible for enforcing such Regulatory Requirement, such resolution shall be conclusively deemed an adequate cure hereunder with respect to such Regulatory Requirement, regardless of whether the resolution is achieved in an administrative or judicial proceeding or is voluntary or involuntary on the part of the Owner of the Benefited Property. Nothing herein shall limit the liability of the Owner of the Benefited Property for claims brought by federal or other governmental agencies, third-party claims, or claims by the Owner of the Burdened Property not resolved in the resolution of the Regulatory Requirement violation.
(f) In any emergency, an Owner of the Burdened Property shall make commercially reasonable efforts to notify the non-performing Owner of Benefited Property of the emergency and necessary performance. No written notice to a non-performing Owner pursuant to Section 4(h) shall be required before the Owner of the Burdened Property shall have the right, but not the obligation, to cure any non-performance that resulted in such emergency, including, without limitation, such actions as may be necessary to prevent unlawful spills, releases or discharges by operating an emergency shut off valve. The Owner of the Burdened Property shall have reasonable access to the Benefited Property as necessary to access any emergency shut off valve located on the Benefited Property. In the event of an emergency in which an Owner of the Burdened Property cures or takes affirmative action to attempt to cure non-performance, the Owner of the Burdened Property shall have the right to seek reimbursement of the reasonable costs of performance from the non-performing Owner of the Benefited Property. The Owner of the Burdened Property shall indemnify and hold the Owner of the Benefited Property harmless to the extent that the actions of the Owner of the Burdened Property pursuant to this Section are negligent and exacerbate a spill, release or discharge.
(g) To the extent more than one Owner uses a storm drain, all obligations hereunder with respect to such storm drain shall be joint and several; provided that if one such Owner expends any amount pursuant to this Declaration, such Owner may invoice the other Owners using such storm drain for such other Owner s pro rata share of the cost of such expenditure (based on the respective Owners volume of use of such storm drain) and the failure of the non-performing Owner to pay such invoice within thirty (30) days of written request therefor shall entitle the performing Owner to the rights and remedies set forth in Section 2 below.
Appears in 1 contract
Samples: Development Agreement
Easement. The deed given to the Buyer at the Closing shall convey to Buyer a 100' wide perpetual easement appurtenant to the Premises over a portion of the Seller's Retained Land, as shown on the Survey (the "Easement"). The Easement shall be for the benefit of the Buyer, its successors and assigns, for purposes of installing, maintaining, accessing, inspecting, repairing, replacing, paving, and using:
(a) Declarant reserves a perpetual non-exclusive easement for the Owners of the Benefited Property to install, operate, maintain, repair public trail and replace storm drain lines under, across associated signage and within the Storm Drain Area. An Owner of Benefited Property shall have access to such portions of the Burdened Property as reasonably required to operate, maintain, repair and replace storm drain lines in the Storm Drain Areafacilities; provided, that except in an emergency, such access shall be only after prior written notice to the Owner of the Burdened Property upon which such Storm Drain Area is located and in the presence of a representative of the Owner of the Burdened Property. In the case of an emergency, the Owner of the Benefited Property shall endeavor to provide prior telephonic notice to the Owner of the Burdened Property of its intended access for emergency purposes, and shall provide written confirmation of its emergency activities as soon as practicable thereafter.
(b) When performing work in the Storm Drain Area, an Owner of Benefited Property shall use commercially reasonable efforts to minimize any disruption to the Burdened Property. After the performance of any work in the Storm Drain Area by an Owner of Benefited Property, such Owner performing the work shall cause the affected portions of the Storm Drain Area to be properly compacted underground and shall restore all improvements above-ground utilities; and landscaping affected in any way by such work to at least the condition of such improvements and landscaping as existed prior to such installation (including, without limitation, replacing any damaged trees with trees of similar size and type to the trees damaged), and the Owner performing the work shall warranty that all such work shall be free of material defects for a period of one (1) year following the completion of such work.
(c) In its a road, which may be paved at Buyer’s option, and associated appurtenances such as lighting, bridges, culverts, drainage, signage, or guardrails, providing vehicular and pedestrian access to and from Field Road and the Premises and any future development or improvements located thereon. The Easement shall be conveyed with metes and bounds, as shown on the Survey. The Easement shall include the right to trim, cut down and remove bushes, shrubbery, trees and other vegetation and growth within the Easement area in connection with Buyer’s use and improvement thereof. The Easement shall be conveyed free from restrictions on Buyer’s use of the storm drains in Easement area for the Storm Drain Areaabove-described purposes, an Owner except for the following restrictions, which shall be imposed on the Easement area for the benefit of Benefited Property shallthe premises owned by Xxxxxxxxx X. Liberty located at 000 Xxxxxxxxx Xxxx (Xxxxxxxx Xxx Xxx X00, Xxx 00) (the “Benefitted Parcel”) and shall be enforceable by Xxxxxxxxx X. Liberty and her successors and assigns: the Easement area shall be (i) regularly inspectmaintained in a neat, andorderly, at all timeswell maintained state, maintain such Owner s facilities and related equipment in good order and repair and in proper operating condition, including, without limitation, clean-out, maintenance and repair of piping, catch basin filters and oil/water separators of such Owner; (ii) not permit any claimkept free of trash, lien debris or other encumbrances arising from such Owner s use of the Storm Drain Area to accrue against or attach to the Burdened Property; discarded materials, (iii) comply with all lawskept free of equipment or materials storage, ordinances, regulations, requirements other than the temporary storage of equipment and permits applicable to the discharge from the Benefited Property owned by such Owner into the storm drain used by such Owner from and after the date hereof, including, without limitation, permits issued by the Oregon Department of Environmental Quality ( DEQ ) and the City of Portland Bureau of Environmental Services ( BES ) (collectively, the Regulatory Requirements ); (iv) provide for emergency response to prevent spills, releases or other unlawful discharges from entering into the storm drain lines and to prevent spills from discharging from an outfall into or beyond the slip (including provisions of appropriate sorbent booms or other response in the event of a discharge); (v) periodically monitor Owner s stormwater quality, to the extent required by permits issued by the DEQ and/or the BES or pursuant to any other Regulatory Requirements; and (vi) indemnify, protect, defend and hold harmless the Declarant and the other Owners of the Burdened Property for, from and against claims, liabilities, costs and expenses arising out of event occurring after the date hereof materials in connection with such Owner s construction, maintenance, repairsrepair, operation, paving or replacement of storm drain lines and related equipment in the Storm Drain Area and performance of such Owner s obligations of this Section 1(c). Any stormwater quality monitoring data which an Owner of the Benefited Property is required to provide to DEQ or BES pursuant to Regulatory Requirements shall be provided to the Owner of the Burdened Property not later than concurrently with its submission to DEQ and/or BES or other applicable regulatory agencysimilar activities.
(d) The Owner of the Burdened Property on which a storm drain is located on shall have the right to relocate a storm drain in the Storm Drain Area to a different location of the Property, as necessary to reasonably accommodate the needs of the Owner of the Burdened Property and/or any of their tenants, subtenants, successors or assigns. so long as: (i) the Owner relocating the Storm Drain Area pays for the entire cost of the relocation of such storm drain, and (ii) such relocation is performed so that at no time is the continuous use of such storm drain impaired or impeded in any manner.
(e) If an Owner of Benefited Property fails to perform any obligation set forth in this Section 1, an Owner of the Burdened Property may send the non-performing Owner written notice of non-performance pursuant to the notice provisions of Section 4(h). If within thirty (30) days of such notice the non-performing Owner fails to send the Owner sending the non-performance notice a written notice either disputing the non-performance (which dispute shall be resolved by arbitration as provided herein) or acknowledging such non-performance and agreeing to commence the cure of such non-performance and diligently pursue such cure to completion, the Owner of the Benefited Property sending the non-performance notice shall have the right, but not the obligation, to institute arbitration hereunder to determine whether performance is required and, if required, to compel performance. If the Owner of the Benefited Property resolves an actual or alleged violation of any Regulatory Requirement with the agency responsible for enforcing such Regulatory Requirement, such resolution shall be conclusively deemed an adequate cure hereunder with respect to such Regulatory Requirement, regardless of whether the resolution is achieved in an administrative or judicial proceeding or is voluntary or involuntary on the part of the Owner of the Benefited Property. Nothing herein shall limit the liability of the Owner of the Benefited Property for claims brought by federal or other governmental agencies, third-party claims, or claims by the Owner of the Burdened Property not resolved in the resolution of the Regulatory Requirement violation.
(f) In any emergency, an Owner of the Burdened Property shall make commercially reasonable efforts to notify the non-performing Owner of Benefited Property of the emergency and necessary performance. No written notice to a non-performing Owner pursuant to Section 4(h) shall be required before the Owner of the Burdened Property shall have the right, but not the obligation, to cure any non-performance that resulted in such emergency, including, without limitation, such actions as may be necessary to prevent unlawful spills, releases or discharges by operating an emergency shut off valve. The Owner of the Burdened Property shall have reasonable access to the Benefited Property as necessary to access any emergency shut off valve located on the Benefited Property. In the event of an emergency in which an Owner of the Burdened Property cures or takes affirmative action to attempt to cure non-performance, the Owner of the Burdened Property shall have the right to seek reimbursement of the reasonable costs of performance from the non-performing Owner of the Benefited Property. The Owner of the Burdened Property shall indemnify and hold the Owner of the Benefited Property harmless to the extent that the actions of the Owner of the Burdened Property pursuant to this Section are negligent and exacerbate a spill, release or discharge.
(g) To the extent more than one Owner uses a storm drain, all obligations hereunder with respect to such storm drain shall be joint and several; provided that if one such Owner expends any amount pursuant to this Declaration, such Owner may invoice the other Owners using such storm drain for such other Owner s pro rata share of the cost of such expenditure (based on the respective Owners volume of use of such storm drain) and the failure of the non-performing Owner to pay such invoice within thirty (30) days of written request therefor shall entitle the performing Owner to the rights and remedies set forth in Section 2 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Easement. The deed given to the Buyer at the Closing shall convey to Buyer a 100' wide perpetual easement appurtenant to the Premises over a portion of the Seller's Retained Land, as shown on the Survey (the "Easement"). The Easement shall be for the benefit of the Buyer, its successors and assigns, for purposes of installing, maintaining, accessing, inspecting, repairing, replacing, paving, and using:
(a) Declarant reserves a perpetual non-exclusive easement for the Owners of the Benefited Property to install, operate, maintain, repair public trail and replace storm drain lines under, across associated signage and within the Storm Drain Area. An Owner of Benefited Property shall have access to such portions of the Burdened Property as reasonably required to operate, maintain, repair and replace storm drain lines in the Storm Drain Areafacilities; provided, that except in an emergency, such access shall be only after prior written notice to the Owner of the Burdened Property upon which such Storm Drain Area is located and in the presence of a representative of the Owner of the Burdened Property. In the case of an emergency, the Owner of the Benefited Property shall endeavor to provide prior telephonic notice to the Owner of the Burdened Property of its intended access for emergency purposes, and shall provide written confirmation of its emergency activities as soon as practicable thereafter.
(b) When performing work in the Storm Drain Area, an Owner of Benefited Property shall use commercially reasonable efforts to minimize any disruption to the Burdened Property. After the performance of any work in the Storm Drain Area by an Owner of Benefited Property, such Owner performing the work shall cause the affected portions of the Storm Drain Area to be properly compacted underground and shall restore all improvements above-ground utilities; and landscaping affected in any way by such work to at least the condition of such improvements and landscaping as existed prior to such installation (including, without limitation, replacing any damaged trees with trees of similar size and type to the trees damaged), and the Owner performing the work shall warranty that all such work shall be free of material defects for a period of one (1) year following the completion of such work.
(c) In its a road, which may be paved at Buyer’s option, and associated appurtenances such as lighting, bridges, culverts, drainage, signage, or guardrails, providing vehicular and pedestrian access to and from Field Road and the Premises and any future development or improvements located thereon. The Easement shall be conveyed with metes and bounds, as shown on the Survey. The Easement shall include the right to trim, cut down and remove bushes, shrubbery, trees and other vegetation and growth within the Easement area in connection with Buyer’s use and improvement thereof. The Easement shall be conveyed free from restrictions on Buyer’s use of the storm drains in Easement area for the Storm Drain Areaabove-described purposes, an Owner except for the following restrictions, which shall be imposed on the Easement area for the benefit of Benefited Property shallthe premises owned by Xxxxxxxxx X. Liberty located at 000 Xxxxxxxxx Xxxx (Falmouth Tax Map R03, Lot 65) (the “Benefitted Parcel”) and shall be enforceable by Xxxxxxxxx X. Liberty and her successors and assigns: the Easement area shall be (i) regularly inspectmaintained in a neat, andorderly, at all timeswell maintained state, maintain such Owner s facilities and related equipment in good order and repair and in proper operating condition, including, without limitation, clean-out, maintenance and repair of piping, catch basin filters and oil/water separators of such Owner; (ii) not permit any claimkept free of trash, lien debris or other encumbrances arising from such Owner s use of the Storm Drain Area to accrue against or attach to the Burdened Property; discarded materials, (iii) comply with all lawskept free of equipment or materials storage, ordinances, regulations, requirements other than the temporary storage of equipment and permits applicable to the discharge from the Benefited Property owned by such Owner into the storm drain used by such Owner from and after the date hereof, including, without limitation, permits issued by the Oregon Department of Environmental Quality ( DEQ ) and the City of Portland Bureau of Environmental Services ( BES ) (collectively, the Regulatory Requirements ); (iv) provide for emergency response to prevent spills, releases or other unlawful discharges from entering into the storm drain lines and to prevent spills from discharging from an outfall into or beyond the slip (including provisions of appropriate sorbent booms or other response in the event of a discharge); (v) periodically monitor Owner s stormwater quality, to the extent required by permits issued by the DEQ and/or the BES or pursuant to any other Regulatory Requirements; and (vi) indemnify, protect, defend and hold harmless the Declarant and the other Owners of the Burdened Property for, from and against claims, liabilities, costs and expenses arising out of event occurring after the date hereof materials in connection with such Owner s construction, maintenance, repairsrepair, operation, paving or replacement of storm drain lines and related equipment in the Storm Drain Area and performance of such Owner s obligations of this Section 1(c). Any stormwater quality monitoring data which an Owner of the Benefited Property is required to provide to DEQ or BES pursuant to Regulatory Requirements shall be provided to the Owner of the Burdened Property not later than concurrently with its submission to DEQ and/or BES or other applicable regulatory agencysimilar activities.
(d) The Owner of the Burdened Property on which a storm drain is located on shall have the right to relocate a storm drain in the Storm Drain Area to a different location of the Property, as necessary to reasonably accommodate the needs of the Owner of the Burdened Property and/or any of their tenants, subtenants, successors or assigns. so long as: (i) the Owner relocating the Storm Drain Area pays for the entire cost of the relocation of such storm drain, and (ii) such relocation is performed so that at no time is the continuous use of such storm drain impaired or impeded in any manner.
(e) If an Owner of Benefited Property fails to perform any obligation set forth in this Section 1, an Owner of the Burdened Property may send the non-performing Owner written notice of non-performance pursuant to the notice provisions of Section 4(h). If within thirty (30) days of such notice the non-performing Owner fails to send the Owner sending the non-performance notice a written notice either disputing the non-performance (which dispute shall be resolved by arbitration as provided herein) or acknowledging such non-performance and agreeing to commence the cure of such non-performance and diligently pursue such cure to completion, the Owner of the Benefited Property sending the non-performance notice shall have the right, but not the obligation, to institute arbitration hereunder to determine whether performance is required and, if required, to compel performance. If the Owner of the Benefited Property resolves an actual or alleged violation of any Regulatory Requirement with the agency responsible for enforcing such Regulatory Requirement, such resolution shall be conclusively deemed an adequate cure hereunder with respect to such Regulatory Requirement, regardless of whether the resolution is achieved in an administrative or judicial proceeding or is voluntary or involuntary on the part of the Owner of the Benefited Property. Nothing herein shall limit the liability of the Owner of the Benefited Property for claims brought by federal or other governmental agencies, third-party claims, or claims by the Owner of the Burdened Property not resolved in the resolution of the Regulatory Requirement violation.
(f) In any emergency, an Owner of the Burdened Property shall make commercially reasonable efforts to notify the non-performing Owner of Benefited Property of the emergency and necessary performance. No written notice to a non-performing Owner pursuant to Section 4(h) shall be required before the Owner of the Burdened Property shall have the right, but not the obligation, to cure any non-performance that resulted in such emergency, including, without limitation, such actions as may be necessary to prevent unlawful spills, releases or discharges by operating an emergency shut off valve. The Owner of the Burdened Property shall have reasonable access to the Benefited Property as necessary to access any emergency shut off valve located on the Benefited Property. In the event of an emergency in which an Owner of the Burdened Property cures or takes affirmative action to attempt to cure non-performance, the Owner of the Burdened Property shall have the right to seek reimbursement of the reasonable costs of performance from the non-performing Owner of the Benefited Property. The Owner of the Burdened Property shall indemnify and hold the Owner of the Benefited Property harmless to the extent that the actions of the Owner of the Burdened Property pursuant to this Section are negligent and exacerbate a spill, release or discharge.
(g) To the extent more than one Owner uses a storm drain, all obligations hereunder with respect to such storm drain shall be joint and several; provided that if one such Owner expends any amount pursuant to this Declaration, such Owner may invoice the other Owners using such storm drain for such other Owner s pro rata share of the cost of such expenditure (based on the respective Owners volume of use of such storm drain) and the failure of the non-performing Owner to pay such invoice within thirty (30) days of written request therefor shall entitle the performing Owner to the rights and remedies set forth in Section 2 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Easement. (a) Declarant reserves Grantor hereby grants, gives and conveys to Grantee a perpetual non-exclusive right, privilege and easement to use the Parking Lot from time to time as legally described on Exhibit B, attached hereto and incorporated herein by reference and depicted on Exhibit C, attached hereto and incorporated herein by reference (the “Easement Area”), for the Owners purposes of ingress and egress, public travel and parking of vehicles upon completion of construction of such Parking Lot (the “Easement”). Grantee’s Easement rights shall be shared in common with the invitees, licensees, employees, contractors and guests of Grantor and its tenants of the Benefited Property to installProject. The Easement shall terminate without any additional action of Grantor or Grantee upon the later of (i) the date upon which the Subordinate Bonds and any Subordinate Obligations (as defined in the Development Agreement) are satisfied in full, operate, maintain, repair or (ii) the date upon which the Impact Fee Payments (as defined in the Development Agreement) are satisfied and replace storm drain lines under, across and within the Storm Drain Areapaid in full. An Owner of Benefited Property Grantor shall have access the right, from time to such portions time, to change the location of any portion of the Burdened Parking Lot on Grantor’s Property as reasonably required to operate, maintain, repair and replace storm drain lines in provided such relocation does not reduce or unreasonably impair the Storm Drain Area; provided, that except in an emergency, such access shall be only after prior written notice to the Owner usefulness or function of the Burdened Property upon which such Storm Drain Area is located and in the presence of a representative portion of the Owner of the Burdened Property. In the case of an emergency, the Owner of the Benefited Property shall endeavor Parking Lot which Grantor seeks to provide prior telephonic notice to the Owner of the Burdened Property of its intended relocate and that access for emergency purposes, pedestrian and shall provide written confirmation of vehicular traffic on Grantor’s Property is not unreasonably restricted or its emergency activities as soon as practicable thereafter.
(b) When performing work in the Storm Drain Area, an Owner of Benefited Property shall use commercially reasonable efforts to minimize any disruption to the Burdened Property. After the performance of any work in the Storm Drain Area by an Owner of Benefited Property, such Owner performing the work shall cause the affected portions of the Storm Drain Area to be properly compacted and shall restore all improvements and landscaping affected enjoyment in any way materially impaired by such work to at least changes. In such event, Grantor shall record with the condition St. Louis County Recorder of Deeds a certificate setting forth the legal description of such improvements relocated Parking Lot as it exists on Grantor’s Property. Grantor, on behalf of itself and landscaping as existed prior to such installation (includingall future owners of Grantor’s Property, without limitation, replacing any damaged trees expressly reserves all of its rights which are not inconsistent with trees of similar size the use and type to the trees damaged), and the Owner performing the work shall warranty that all such work shall be free of material defects for a period of one (1) year following the completion of such work.
(c) In its use enjoyment of the storm drains in the Storm Drain Area, an Owner of Benefited Property shall: (i) regularly inspect, and, at all times, maintain such Owner s facilities Easement and related equipment in good order and repair and in proper operating conditionthis Agreement, including, without limitation, clean-out, maintenance and repair of piping, catch basin filters and oil/water separators of such Owner; (ii) not permit any claim, lien or other encumbrances arising from such Owner s reasonable restrictions upon use of the Storm Drain Area to accrue against Parking Lot, as follows:
(a) The storage of wrecked or attach to the Burdened Property; (iii) comply with all laws, ordinances, regulations, requirements and permits applicable to the discharge from the Benefited Property owned by such Owner into the storm drain used by such Owner from and after the date hereof, including, without limitation, permits issued by the Oregon Department disassembled vehicles in various stages of Environmental Quality ( DEQ ) and the City of Portland Bureau of Environmental Services ( BES ) (collectively, the Regulatory Requirements ); (iv) provide for emergency response to prevent spills, releases or other unlawful discharges from entering into the storm drain lines and to prevent spills from discharging from an outfall into or beyond the slip (including provisions of appropriate sorbent booms or other response disrepair anywhere in the event of Parking Lot is expressly prohibited;
(b) No person shall park a discharge); (v) periodically monitor Owner s stormwater quality, to the extent required by permits issued by the DEQ and/or the BES or pursuant to any other Regulatory Requirements; and (vi) indemnify, protect, defend and hold harmless the Declarant and the other Owners of the Burdened Property for, from and against claims, liabilities, costs and expenses arising out of event occurring after the date hereof in connection with such Owner s maintenance, repairs, operation, or replacement of storm drain lines and related equipment vehicle in the Storm Drain Area and performance Parking Lot for the principal purpose of displaying such Owner s obligations vehicle for sale;
(c) No person shall park a vehicle in the Parking Lot for the principal purpose of this Section 1(c). Any stormwater quality monitoring data which repairing such vehicle except such repairs necessitated by an Owner of the Benefited Property is required to provide to DEQ or BES pursuant to Regulatory Requirements shall be provided to the Owner of the Burdened Property not later than concurrently with its submission to DEQ and/or BES or other applicable regulatory agency.emergency;
(d) The Owner No person shall park any vehicle in the Parking Lot in such a manner or under such conditions as to leave available less than ten (10) feet of the Burdened Property on which a storm drain is located on shall have the right to relocate a storm drain in the Storm Drain Area to a different location width of the Property, as necessary to reasonably accommodate the needs roadway for free movement of the Owner of the Burdened Property and/or any of their tenants, subtenants, successors or assigns. so long as: (i) the Owner relocating the Storm Drain Area pays for the entire cost of the relocation of such storm drain, and (ii) such relocation is performed so that at no time is the continuous use of such storm drain impaired or impeded in any manner.vehicular traffic;
(e) If an Owner No person shall park a vehicle with a gross licensed weight in excess of Benefited Property fails to perform any obligation set forth in this Section 1, an Owner of the Burdened Property may send the non-performing Owner written notice of non-performance pursuant to the notice provisions of Section 4(h). If within thirty twelve thousand (3012,000) days of such notice the non-performing Owner fails to send the Owner sending the non-performance notice a written notice either disputing the non-performance (which dispute shall be resolved by arbitration as provided herein) or acknowledging such non-performance and agreeing to commence the cure of such non-performance and diligently pursue such cure to completion, the Owner of the Benefited Property sending the non-performance notice shall have the right, but not the obligation, to institute arbitration hereunder to determine whether performance is required and, if required, to compel performance. If the Owner of the Benefited Property resolves an actual or alleged violation of any Regulatory Requirement with the agency responsible for enforcing such Regulatory Requirement, such resolution shall be conclusively deemed an adequate cure hereunder with respect to such Regulatory Requirement, regardless of whether the resolution is achieved in an administrative or judicial proceeding or is voluntary or involuntary on the part of the Owner of the Benefited Property. Nothing herein shall limit the liability of the Owner of the Benefited Property for claims brought by federal or other governmental agencies, third-party claims, or claims by the Owner of the Burdened Property not resolved pounds in the resolution Parking Lot, except for a period of not to exceed two (2) hours for the Regulatory Requirement violation.purpose of and while actually engaged in loading and unloading merchandise or passengers;
(f) In any emergency, an Owner No person shall park a motor vehicle within the Parking Lot for a period of time exceeding six (6) hours during such hours that the Burdened Property shall make commercially reasonable efforts to notify the non-performing Owner of Benefited Property of the emergency and necessary performance. No written notice to a non-performing Owner pursuant to Section 4(h) shall be required before the Owner of the Burdened Property shall have the right, but not the obligation, to cure any non-performance that resulted in such emergency, including, without limitation, such actions as may be necessary to prevent unlawful spills, releases or discharges by operating an emergency shut off valve. The Owner of the Burdened Property shall have reasonable access Project is open to the Benefited Property as necessary to access any emergency shut off valve located on the Benefited Property. In the event of an emergency in which an Owner of the Burdened Property cures or takes affirmative action to attempt to cure non-performance, the Owner of the Burdened Property shall have the right to seek reimbursement of the reasonable costs of performance from the non-performing Owner of the Benefited Property. The Owner of the Burdened Property shall indemnify and hold the Owner of the Benefited Property harmless to the extent that the actions of the Owner of the Burdened Property pursuant to this Section are negligent and exacerbate a spill, release or discharge.general public; and
(g) To No person shall park a motor vehicle within the extent more than one Owner uses Parking Lot for a storm drain, all obligations hereunder with respect to period of time exceeding two (2) hours during such storm drain shall be joint and several; provided hours that if one such Owner expends any amount pursuant to this Declaration, such Owner may invoice the other Owners using such storm drain for such other Owner s pro rata share of the cost of such expenditure (based on the respective Owners volume of use of such storm drain) and the failure of the non-performing Owner to pay such invoice within thirty (30) days of written request therefor shall entitle the performing Owner Project is not open to the rights and remedies set forth in Section 2 belowgeneral public.
Appears in 1 contract
Samples: Easement Agreement