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HomeMy WebLinkAboutAltitude - EasementThis Instrument Prepared By and Should be Returned 'fo: EICHENBALIM, LILES & HEISTER, P.A. 124 West Capitol Ave., Suite 1400 Little Rock, AR 72201-3736 ACCESS DRIVE AND EASEMENT AGREEMENT This Access and Drive Easement Agreement ("Agreement") is executed effective the 25"' day of February, 2011, by and between WINDSTREAM HOSTED SOLUTIONS, LLC ("Windstream") and CHENAL PARKWAY DEVELOPMENT, LLC ("Development"), hereafter collectively the "Parties". WITNESSETH WHEREAS, Windstream has purchased from Development and now owns real property and improvements identified as Lot 1 A, OneSource Addition to the City of Little Rock, Pulaski County, Arkansas ("Lot IA"), more particularly described on that Plat filed for record at 2011006235 in the Real Estate Records of Pulaski County, Arkansas; WHEREAS, Development continues to own certain real property identified as Lots 1B and 1C, OneSource Addition to the City of Little Rock, Pulaski County, Arkansas ("Lots I and 1C"), more particularly described on that Plat filed for record at 2011006235 in the Real Estate Records of Pulaski County, Arkansas; WHEREAS, part of the consideration for that purchase by Windstream of Lot IA is Windstream's acquiescence and Development's desire that the Parties create and dedicate a non-exclusive, perpetual easement to run with the land for ingress and egress for use of the owners and assigns of Lots 1 B and I C and for the benefit of their respective successor owners, tenants, employees, agents, customers, contractors, licensees, invitees, successors, and assigns within the easement area depicted on Exhibit "A" (the "Easement Area"), all on the terms and conditions set forth herein. NOW THEREFORE, in consideration of the foregoing premises and the terms, conditions, covenants, and provisions contained herein, it is agreed as follows: 1. Grant of Easements. (a) Grant of Easement on Lot IA. Subject to the terms and conditions set forth herein, Windstream hereby reserves, grants, and dedicates for the non-exclusive use and benefit of Development and its successors and assigns, lessees, employees, agents, customers, contractors, licensees, and invitees, in, to, and over Lot IA a perpetual, non-exclusive easement on that portion of Lot IA shown in the Easement Area described on Exhibit "A" attached hereto and made a part hereof ("Easement Area"), for the purpose of unobstructed vehicular and pedestrian ingress and egress, fi•ee in charge, to and from Lot 1B and as set out herein Lot 1C over and across Lot lA to and from the Access Drive set out and described in Instrument Nos. 95 16102 and 2006097279, filed in the Real Estate Records of Pulaski County, Arkansas ("Access Drive"). (b) Windstream, on behalf of its successors and assigns, acknowledges and agrees that the use of the Easement Area by the Owners, tenants, employees, agents, customers, licensees, successors and assigns of Lot IC shall be conditioned on the Owner, successor or assigns of Lot 1 B dedicating an easement over and across Lot 1 B for such use and benefit running with the land by written instrument filed for record in the Real Estate Records of Pulaski County, Arkansas. However, no delay in granting such easement or filing such written instrument shall nullify the grant as to Lot I C. 2. Maintenance of Easement Area. The Easement Area is over an improved drive and parking area presently constructed on Lot I and shall be kept, maintained, and repaired in a "first class" manner and condition. The Easement Area shall be kept and maintained free and clear of all dirt, trash, and debris and no owner shall obstruct the fi•ee flow of traffic on the Easement Area or obstruct any barrier (other than temporary barriers for construction and maintenance) within the Easement Area. The surface of the Easement Area shall be kept, maintained and repaired in a smooth condition, free of bumps or humps, except any speed bumps or humps the Owners agree to install to control the speed and flow of traffic, or holes; and, the surface of said drive shall also be kept, maintained and repaired so as to be free of any cracks or holes that significantly impair the remaining life of said drive's stone base material or sub -grade. The maintenance and repair of the Easement Area contemplated herein includes, but is limited to, the resurfacing and/or reconstruction of said drive. The duty to perform maintenance upon and make repairs to the Easement Area shall be the shared obligation of the then concurrent respective owners of Lots I and 1B. The cost of maintenance and repairs to the Easement Area shall be allocated equally to the then current respective owners of Lot IA and Lot 1 B (each an "Owner"). The Owners of Lots IA and 1 B shall use commercially reasonable efforts to confer about and agree upon any maintenance and repairs required to and in the Easement Area, including but not limited to bids for any work, pricing and third -party contractors. Each Owner agrees to pay for its allocation of the cost associated with the agreed upon maintenance and repairs within thirty (30) days after receipt of a statement tendered by either the other Owner or the third -party contractor directly to the third party completing said maintenance or repairs. 3. Indemnifications• Insurance. The parties shall indemnify and save the other party harmless from all claims, judgments, costs of defense, including reasonable attorneys' fees, for damage to property, injury or death occurring on their respective properties. The parties shall carry, at their own cost, general public liability insurance covering their respective properties with a combined bodily injury, death and property damage limit of not less that One Million Dollars ($1,000,000.00) per occurrence. All such insurance shall name the other party as an additional insured and shall contain a waiver of subrogation against such other party. Notwithstanding the foregoing, Windstream reserves the right to self -insure. 4. Further Action. The parties shall, with reasonable promptness, undertake such actions in accordance with this Agreement and applicable law as shall be reasonably necessary and appropriate to carry out and put into effect that which is contemplated herein. 5. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. The terms `party' or `parties' as used herein shall mean the person or persons presently or hereafter holding title to or having a fee simple interest in any portion of the Properties. 6. Duties and Obligations Run With Land. Each and all duties, obligations, terms, conditions, covenants and provisions contained herein shall run with the Properties; and such duties, obligations, terms, conditions, covenants and provisions contained herein shall touch, concern, encumber, bind and inure to the benefit of every person, now and in the future, holding title to or having a fee simple interest in any portion of the Properties. 7. Discharge of Rights and Duties Upon Transfer. In the event of an assignment, transfer or conveyance of the whole of Lot lA or Lot 1B or any remaining interests in Lot IA or Lot IB, as the case may be, without such party retaining any interest therein, other than a collateral security interest through a mortgage or deed of trust, the powers, rights, duties, obligations and interests conferred on and assumed by such party herein shall be deemed assigned, transferred or conveyed to such assignee, transferee or grantee and the duties and obligations of the party so assigning, transferring and conveying such interest shall be discharged. 8. Abandonment. The easements granted herein shall not be forfeited or abandoned for non-use. 9. Notice. All notices, elections or other communications that may be required or permitted under this Agreement shall be in writing and signed by the party, or the party's agent or attorney, giving such notice, election or other communication, and shall be delivered personally, sent by certified or registered mail, return receipt requested, or via overnight delivery (by a nationally recognized overnight delivery courier) to the other party to whom the notice, election or communication is directed at the address(es) of such other party as set forth herein or at any subsequent address(es) a party may hereafter designate by written notice in accordance with the terms of this provision. The date of service of a notice, election or other communication shall be the date of personal delivery, or if sent by mail, the date of delivery as evidence on the return receipt. If to Windstream Hosted Solutions, LLC: 4001 Rodney Parham Road Little Rock, Arkansas 72212 Attention: Commercial Real Estate Manager If to Chenal Parkway Development LLC: 216 Louisiana Little Rock, AR 72201 Attention: Haitham K. Alley 10. No Public Rights Created. Nothing herein shall create or be construed to create any rights in and/or for the general public in or to the easement areas or constitute any dedication of the Easement Area to or for the benefit of the general public. 11. Attorney Fees. hr the event either party brings or defends an action or proceeding against the other party, which arises out of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party, in addition to any other relief or award granted, its reasonable attorneys' fees, disbursements and court costs. In the event either party (the "Intervener") is not in default in the payment or performance of its obligations under this Agreement and such party becomes a party or movant in any bankruptcy, insolvency or probate action or proceeding which purports to affect either parties' interest under this Agreement, the Intervener shall be entitled to recover from the other party, in addition to any other relief or award granted, its reasonable attorneys' fees, disbursements and court costs incurred in connection with such action or proceeding. 12. Paragraph Headings. The heading or title of any paragraph appearing in this Agreement, and the other of its listing, is for convenience of reference only and shall not be used in any way to define, limit, simplify or aid in the interpretation of the terms, conditions, provisions and requirements hereof. 13. Gender and Number. Whenever masculine, feminine, neuter, singular, plural, conjunctive or disjunctive terms are used in this Agreement, they shall be construed to read in whatever form is appropriate to make this Agreement applicable to all parties and all circumstances, except where the context of this Agreement clearly dictates otherwise. 14. Materiality. Each and every term, condition, covenant, provision and requirement contained herein is material to this Agreement. 15. Severability. In the event any term, condition, provision, section, paragraph, sentence, clause, phrase or word contained in this Agreement, or the application thereof in any circumstances, is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the validity and enforceability of the remainder of this Agreement, and the application of any such any term, condition, provision, section, paragraph, sentence, clause, phrase or word in other circumstances, shall not be affected thereby. 16. Waiver Not Implied. The failure or forbearance of either party to exercise or enforce any right or remedy under this Agreement, or at law or in equity, on any one or more occasions shall not be deemed to imply or constitute a further waiver of the same or any other term, condition, provision or requirement of this Agreement, such right or remedy or any other term, condition, provision or requirement of this Agreement shall continue to remain in full force and effect as if no such forbearance or waiver had occurred. 17. Entire Agreement. This Agreement constitutes the sole, entire and only agreement between the parties, pertaining to the subject matter hereof, and except to the extent specifically provided for herein, this Agreement supercedes and voids all prior agreements and understandings of the parties in connection therewith. No term, condition, covenant, provision or warranty not expressly incorporated herein shall be effective to interpret, change or restrict this Agreement. 18. Amendment. No amendment, modification, change or alteration of this Agreement shall be effective unless the same shall be in writing, dated subsequent to the date hereof, and executed by all of the then current Owners of the Property. 19. Governing Law. This Agreement and the rights and obligations of the parties hereto shall be governed by, construed and in accordance with the laws of the State of Arkansas. 20. Counterparts. This Agreement may be executed in two or more identical counterparts, each of which, when executed, shall constitute an original. In witness whereof, the parties have executed this Agreement as of the date first written above. Windstream Hosted Solutions LLC By: fficer Name: Title: C . r• 0 Chenal Parkway Development LLC, an Arkansas limited 'ability company By: SKA Mana Its Manager By: {. Wey, Manager ACKNOWLEDGMENT STATE OF ARKANSAS ) )ss COUNTY OF PULASKI } Be it remembered that on this day came before me, the undersigned, a Notary Public duly authorized in and for the said County in the State aforesaid to take acknowledgment, personally appeared to me well known, and states that he is the 01-tb of Windstre m Hosted Solutions, LLC, and stated that he had executed the foregoing document for the consideration and purposes therein mentioned and set forth. IN WITNESS WHEREOF, I have hereunto set my hand and official seal this Z5 day of February, 2011. ' IAA 5 Notary P tb lic ommti res: a„•„�Y Pulaski Coun My commis. Expires �, ��; "• June 24, 2015 ACKNOWLEDGMENT STATE OF ARKANSAS ) }ss COUNTY OF PULASKI ) Be it remembered that on this day came before me, the undersigned, a Notary Public duly authorized in and for the said County in the State aforesaid to take acknowledgment, personally appeared Haitham K. Alley to me well known, , and states that he is the Manager of SKA Management, LLC. the Manager of Chenal Parkway Development, LLC, and stated that he had executed the foregoing document for the consideration and purposes therein mentioned and set forth. IN WITNESS WHEREOF, I have hereunto set my hand and official seal this O-3 day of February, 2011. Y� Notary Public My Colmiosion Expires: SHENA F'NAGAN rq,nHr y.� MY COMMISSION 1; 12376941 '•. ,.�� • : EXPIRES: June 2, 2020 Gant Coun n ©EXHIBIT "A" ©pA`