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HomeMy WebLinkAboutBill of Assurance for Reciprocal Cross Access & Parking Easement1 48439.0001/10572172.1 This Instrument Prepared By: Jason N. Bramlett Friday, Eldredge & Clark LLP 3350 S. Pinnacle Hills Pkwy, Suite 301 Rogers, Arkansas 72758 BILL OF ASSURANCE FOR RECIPROCAL CROSS ACCESS AND PARKING EASEMENTS This BILL OF ASSURANCE FOR RECIPROCAL CROSS ACCESS AND PARKING EASEMENTS (this “Bill of Assurance”), is made and entered into as of the ____ day of February, 2024 by XCITED RIVERDALE, LLC, an Arkansas limited liability company (the “Owner” or “Xcited”). RECITALS: The Owner owns adjacent Tracts (as defined below) of property as reflected in the Site Plan. In order to ensure the Tracts have adequate access, parking, and shared services, the Owners desire to enter into this Bill of Assurance to grant certain easements and to establish certain standards and restrictions governing the use, development and operation of the Tracts as set forth herein. BILL OF ASSURANCE: NOW, THEREFORE, in consideration of the foregoing, and the covenants and agreements on the part of each party to the others, as hereinafter set forth, IT IS AGREED as follows: 1. DEFINITIONS. The following terms have the meanings specified or referred to in this Section 1. a. “Developer Control Period” shall be as long as Owner, directly, or indirectly, owns a Tract in whole or in part. b. “Tract” and collectively “Tracts” means each identifiable tract or lot as legally described on Exhibit A, including _____________________. c. “Person” means any individuals, partnerships, firms, associations, corporations, trusts, governmental agencies, administrative tribunals, or any other form of business or legal entity. d. “Occupant” means any Person, from time to time, entitled to the use and occupancy of any portion of the Tracts under any lease, sublease, license, concession or other similar agreement 2 48439.0001/10572172.1 e. “Owner” means each entity described in the recitals to this Bill of Assurance and their respective successor owners of Tract(s). f. “Permittee(s)” means all Owners, Occupants and the partners, officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, invitees and licensees of Owners and Occupants. g. “Site Plan” means the site plan attached hereto as Exhibit B, as may be amended, updated, and replaced from time to time in accordance with this Bill of Assurance. 2. EASEMENTS. a. General Limited Ingress and Egress Over Tracts. Owner agrees to, and hereby does, create and establish a general, reciprocal perpetual, non-exclusive easement for vehicular and pedestrian access, ingress, egress, and regress to and from the Tracts, but not parking or blockage, over and across the vehicular accessways and drive lanes which exist from time to time on the Tracts, and which are shown on the Site Plane, but not over and across any currently or hereafter designated parking areas. The easement granted herein shall be limited to use by the Owners and their Permittees who are accessing the Tracts in connection with a bona fide patronage intent. Neither an Owner nor its Permittees shall be entitled to use the easement granted herein for the purpose of ingress or egress of heavy-duty vehicles, heavy-duty equipment, or construction related vehicles without the prior express consent of the applicable Owner(s). The easement in this Section 2(b) shall only apply to those vehicular accessways and drive lanes which exist from time to time on the Tracts. b. Access Drives. Owner hereby creates and establishes, a perpetual, non- exclusive easementsover the Tracts for vehicular and pedestrian access, ingress, egress and regress to and from each Tract, but not parking or blockage, over and across the accessways depicted and labeled as the “Shared Access” on the Site Plan attached hereto. The easement granted in this Section 2(c) with respect to the Shared Access shall be limited to use by the Owners and their Permittees who are accessing the Tracts in connection with a bona fide patronage intent; no Owner nor its Permitees shall be entitled to use the Shared Access for the purpose of ingress or egress of heavy-duty vehicles, heavy-duty equipment or construction related vehicles without the prior express consent of the applicable Owner(s). Except for planned closures that an Owner informs each other Owner of with thirty days (30) advanced written notice or closured in order to complete maintenance and repair, no Owner shall place, or permit to be placed, any obstruction of any nature which does or could materially interfere with, or materially impair access and egress across, over or to, the Shared Access, or otherwise materially violate the rights, covenants, and easements herein granted, which rights, covenants, and easements shall run with the land. The easement established in this Section 2(b) is solely for the use and benefit of the Owner and Permittees of the Tracts (or any part thereof) and not for any other Person. Owner retains, reserves, and shall continue to enjoy fee simple ownership of its portion of the Shared Access, and the right to use the surface and the subsurface of its respective Tract (including the portion considered Shared Access) for any and all purposes which do not 3 48439.0001/10572172.1 violate the express terms of this Bill of Assurance, or otherwise unreasonably interfere with the easements expressly granted herein. c. Reciprocal Parking Easement. Owner hereby does, create and establish, a reciprocal, non-exclusive easement for its Permittees to park in the parking spaces depicted on the Site Plan (the “Parking Easement”); provided, however, Owner does reserve the right to grant any Permittee of the Tracts exclusive parking rights with respect to certain parking areas pursuant to any existing or subsequent lease of all or a portion of the Tracts. The easements granted in this Section 2(d)(i) shall be limited to use by Owner and its Permittees who are accessing the Tracts in connection with a bona fide patronage intent. 3. PRIVATE USE. Nothing contained in this Bill of Assurance shall ever be deemed to create a gift or dedication of all or any part of a Tract to the general public or for any public use or public purpose whatsoever. It is the intention of the Owners that this Bill of Assurance shall be for the exclusive benefit of each of the Owners of the Tracts their respective Permittees. Each Owner of a Tract, or any portion thereof, shall have the right to enforce the terms hereof. Nothing contained herein, express, or implied, shall confer upon any person or entity other than Owner(s) any rights or remedies under or by reason of this Bill of Assurance. 4. SHARED SERVICES; MAINTENANCE. a. Each Owner of a Tract shall be responsible for the maintenance, landscaping, cleaning, clearing of snow and ice, repair, replacement, insuring and lighting (if any) of the improvements constituting any entrances, curbcuts, drive aisles, driveways (subject to the specific maintenance obligations of Section 4(b) with respect to the Shared Access) and parking areas with respect to its Tract and shall pay all costs incurred in connection with the fulfillment of such responsibilities. All Tracts shall be maintained in first-class condition and repair, clean and free of rubbish and other hazards. To the extent not included in the Shared Services under Section 4(b), such maintenance shall include, but not be limited to, regular and timely removal of all litter, garbage, trash and waste, regular landscape maintenance (including mowing, pruning and trimming), watering, weed control, pest control, maintaining the exterior lighting and mechanical facilities in good working order, keeping walks, driveways and private roadways clean and in good repair, clearing of snow and ice from sidewalks and private roadways, striping driveway areas and repairing and repainting the exterior of improvements visible to neighboring properties and/or public view. The standard for such maintenance shall be that which would be equal in quality at least to that maintained by owners of first-class facilities of the same type in the vicinity of the Tracts. b. Unless otherwise agreed to in writing by the Owners, each Owner shall be responsible for the maintenance and repair of any portion of the Shared Access located on such Owner’s Tract. The Owners’ may, in their discretion, agree to share in the engagement of certain shared services across the Tracts (such services, the “Shared Services”). This Section 4 may be modified to reflect future allocations of Shared Services costs and expenses among the Owners. 4 48439.0001/10572172.1 5. REMEDIES AND ENFORCEMENT. In the event an Owner fails to perform any provision of this Bill of Assurance, which failure continues for a period of thirty (30) days after receipt of written notice specifying the particulars of such failure, such failure shall constitute a default and any other Owner may thereafter institute legal action against the defaulting party for specific performance, declaratory or injunctive relief, monetary damages or any other remedy provided by law; provided, however, that the defaulting Owner shall not be deemed to be in default if such failure to perform cannot be cured within said thirty (30)-day period and such defaulting Owner is diligently proceeding to cure such failure and thereafter cures the failure within a reasonable period of time, not to exceed sixty (60) days, unless otherwise agreed upon by the Owner. Notwithstanding any provision of this Bill of Assurance to the contrary, in the event an Owner closes, or attempts to close, all or any portion of the easements contain in Section 2 in violation of this Bill of Assurance, any other Owner, shall be required to give only such notice as is required by applicable law or is reasonable under the circumstances and may immediately seek injunctive relief (without any requirement to post bond) or any other remedies available to such Owner at law or in equity. In the event any legal proceeding is commenced related to this Bill of Assurance, the prevailing party in such legal proceedings shall be entitled to recover its reasonable attorneys’ fees, litigation expenses and court costs from the non-prevailing party therein. All of the remedies permitted or available to an Owner in this Bill of Assurance shall be cumulative and not mutually exclusive of one another, and the invocation of any one right or remedy shall not preclude an Owner from exercising any other remedy under this Bill of Assurance, at law or in equity. 6. GOVERNING LAW. This Bill of Assurance shall be construed in accordance with the laws of the State of Arkansas. 7. COVENANTS RUN WITH THE LAND. Unless otherwise specified herein, each and all of the easements, covenants, restrictions and provisions contained in this Bill of Assurance: (a) are made for the direct common mutual and reciprocal benefit of each Tract; (b) will create mutual equitable servitudes upon each Tract in favor of the land benefited; (c) will bind every person having a fee, leasehold or other interest in any portion of a Tract at any time, or from time to time, to the extent that such portion of the Tracts is affected or bound by the covenant, restriction or provision in question, or to the extent that the covenant, restriction or provision is to be performed on such portion of the Tract; and (d) will inure to the benefit of the Owner of each Tract, and their respective successors and assigns. 8. MULTIPLE COUNTERPARTS. To facilitate execution, this instrument may be executed in as many counterparts as may be convenient or required. All counterparts shall collectively constitute a single instrument. 9. DURATION. This Bill of Assurance and the covenants, restrictions, easements, charges and liens set out herein shall inure to the benefit and be enforceable by the Owners of any part of the Tracts for a term beginning on the date this Bill of Assurance is recorded and continuing for a period of thirty (30) years, after which time this Bill of Assurance shall be automatically extended for successive periods of ten (10) years, unless this Bill of Assurance is terminated in writing by all of the Owners of the Tracts. 10. CONSTRUCTION. The terms of this Bill of Assurance shall be binding on and inure to the benefit of the Owners, and their respective successors-in-interest No inference shall be 5 48439.0001/10572172.1 drawn from the addition, deletion or modification of any language contained in any prior draft of this Bill of Assurance. In the event any provision hereof shall be prohibited by or invalidated under applicable laws, the remaining provisions of this Bill of Assurance shall remain fully effective. 11. AMENDMENT AND MODIFICATION. a. This Bill of Assurance constitutes the entire Bill of Assurance and understanding of the Owners with respect to the subject matter hereof. Except as provided below, this Bill of Assurance may be amended only by a written instrument executed by all of the Owners. b. Notwithstanding the foregoing, at all times during the Developer Control Period: (i) Xcited and its affiliate(s) to this Bill of Assurance shall have the sole and absolute discretion and authority related to any material changes, modifications, or alterations to the Site Plan, (ii) Excited shall have sole and absolute discretion to modify, update, or adjust shared service and maintenance obligations among the Tracts and Owners under Section 4, and (iii) without the express written consent of Xcited, no Owner may alter or modify its Tract to unreasonably limit, alter, or obstruct the easements contained in Section 2, specifically including access and use of the Shared Access, and the parking easements. Additionally, in furtherance of this Section 11(b), during the Developer Control Period, Xcited, either directly or acting through its affiliate or subsidiary Owner, may make modifications to the Site Plan and record such modifications in an addendum or modification, with or without the consent of the other Owners. 12. WAIVER; VARIANCES. No waiver by any Owner of any default under this Bill of Assurance shall be effective or binding on any such Owner unless made in writing, and no such waiver shall be implied from any omission by any party to take action with respect to such default. No delay or omission of an Owner in the exercise of any right accruing upon default by another Owner shall impair any such right or be construed to be a waiver thereof. A waiver on one occasion by an Owner of a breach or a default of any of the terms and conditions of this Bill of Assurance by another Owner shall not be construed to be a waiver of subsequent breaches or defaults or of any other provisions hereof. 13. EXHIBITS. Except as expressly set forth in this Bill of Assurance, the exhibits used herein are for identification purposes only and will not limit or impair each Owner’s right to construct, alter or modify the improvements on its Tract from time to time. [Signature Pages Follow] 6 48439.0001/10572172.1 IN WITNESS WHEREOF, the undersigned have executed this Bill of Assurance as of the day and year first above written. XCITED: XCITED RIVERDALE, LLC, an Arkansas limited liability company By: TL ASSET MANAGEMENT, LLC By: ________________________ T.J. Lefler, Manager ACKNOWLEDGMENT STATE OF ARKANSAS ) )ss. COUNTY OF WASHINGTON ) On this ______ day of ________________, 2024, before me, the undersigned Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named _______________________, (being the person authorized by said limited liability company to execute such instrument, stating his capacity in that behalf), to me personally well known (or satisfactorily proven to be such person), who stated that he was the Authorized Person of TL ASSET MANAGEMENT, LLC, an Arkansas limited liability company as the manager of XCITED RIVERDALE, LLC, an Arkansas limited liability company, and was duly authorized in his capacity to execute the foregoing instrument(s) for and in the name and behalf of said limited liability company, and further stated and acknowledged that he had so signed, executed, and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this ______ day of ________________, 2024. 7 48439.0001/10572172.1 8 48439.0001/10572172.1 EXHIBIT A LEGAL DESCRIPTION OF TRACTS 9 48439.0001/10572172.1 EXHIBIT B SITE PLAN 10 48439.0001/10572172.1 ACKNOWLEDGMENT AND CONSENT Reference is made to that certain BILL OF ASSURANCE FOR RECIPROCAL CROSS ACCESS AND PARKING EASEMENTS (the “Bill of Assurance”) made and entered into as of the ____ day of February, 2024 and recorded as Document No. ________________________. The undersigned is the holder of that certain Construction with Security Agreement, Absolute Assignment of Rents and Leases, Fixture Filing, and Financing Statement dated December 15, 2021, recorded December ___, 2021 as Document No. _______________, in the records (the “Records”) of Washington County, Arkansas (all as may be from time to time renewed, extended, amended or supplemented, collectively, the “Security Documents”). The undersigned executes this Acknowledgment and Consent to acknowledge its consent to the Bill of Assurance to which this consent is attached. The Security Documents shall at all times be subject and subordinate to the terms of the Bill of Assurance. The covenants and agreements set forth in the Bill of Assurance shall not be affected by any foreclosure or deed in lieu of foreclosure, and any person or entity, including but not limited to a mortgagee or beneficiary of a deed of trust, which hereafter acquires title to any portion of Tract II, through or under the rights set forth in the Security Documents shall be subject to the terms and provisions of this Bill of Assurance. ENCORE BANK, an Arkansas bank By: Name: Title: ACKNOWLEDGMENT STATE OF ARKANSAS ) )ss. COUNTY OF ________________ ) On this ______ day of ________________, 2024, before me, the undersigned Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named _______________________, (being the person authorized by said limited liability company to execute such instrument, stating his capacity in that behalf), to me personally well known (or satisfactorily proven to be such person), who stated that he was the Authorized Person of ENCORE BANK, an Arkansas bank, and was duly authorized in his capacity to execute the foregoing instrument(s) for and in the name and behalf of said bank, and further stated and acknowledged that he had so signed, executed, and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this ______ day of ________________, 2024. (Notary Public)