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HomeMy WebLinkAbout1978-08-09 Financial Properties Ltr to Swager Bros. Re Cross Easement QP // P4 r 0 • : s tC 0 n -. Pi Z3 0,1 1 FE, i ' 0 , VELUPERS INC. 5825 GLENRIDGE DR., N.E. • ATLANTA, GEORGIA 30328 • 404/252 -8220 August 9, 1978 Mr. Norvin L. Swager Swager Brothers, Inc. 5898 Omaha Avenue, North Stillwater, Minnesota 55082 Re: Cross Easement K mart, St. Croix Mall Dear Mr. Swager: We had originally felt that it might be best if we were to prepare the Cross Easement Agreement between the St. Croix Mall and ourselves, however after more thought we feel it may be best if your attorney would draft this agreement, and we merely give to you our ideas of what is customarily used in other agreements we have gotten approved by K mart. Normally, these agreements are not executed by K mart if they are put of record prior to the Lease, however, I am sure you realize we must obtain their approval of same prior to our execution. In your case it is somewhat different since there are probably several leases of record plus a mortgage and these will probably all have to either be a party to the Agreement or at least consent to it. In addition to the Cross Easement with the Mall, it will be necessary for us to have an ingress /egress easement over at least two other tracts, which we understand are under your control. We have re- quested a survey of this total development and we expect to have it within the week. It was our original thought that these ingress/ egress easements should be kept as separate documents since they will be coming from other entities, however, in our Cross Easement Agreement it may be your attorney's idea to cover the use of these along with the other rights granted in the Cross Easement. Since it is necessary for us to receive positive title insurance covering not only the fee simple title, but also the easement rights, any questions regarding who should be a party to the agreement should be cleared with Minnesota Title Company, Attention Mr. Craig Booth, 24 East 4th Street, St. Paul, Minnesota, 55101, telephone 222 -3041. The following are items we feel should be in the Cross Easement Maintenance and Restrictive Agreement, however I am sure there are Mr. Norvin L. Swager August 9, 1978 Page Two items that you would also like included or certain changes in wording which might better fit this particular situation. We are enclosing our Site Plan SK -6 entitled "St. Croix Mall, Stillwater, Minnesota ", dated August 30, 1977, which we feel would serve as a good exhibit to tie down our development and your existing development as well as the expansion area on your site. Should you need additional copies or should you want to get this reduced in size, please let me know when we can furnish you with as many copies as you need. In drafting the documents our name is Financial Properties Developers, Inc., and we are a Georgia Corporation with an address of 5825 Glenridge Drive, N.W., Atlanta, Georgia 30328. Our normal cross easement covering ingress /egress parking etc. is as follows: Financial does and has by these presents granted, bargained, sold and conveyed on to , their successors and assigns rights, title and priviledges of a permanent non - exclusive easement for the purpose of ingress and egress and parking on, over and across cruise lanes, parking areas and sidewalks of the Financial Tract as shown on the site plan for the benefit of This easement shall include pedestrian and vehicular traffic and shall be for the benefit of , its assigns, tenants, invitees, licensees and employees of tenant of It may be necessary for us to come on to your property in order to tie in to some existing utilities and we would like a paragraph similar to that below to cover this: does and has by these presents granted, bargained, sold and conveyed onto Financial their successors and assigns, rights, title and priviledges of a permanent non - exclusive easement for the purpose of constructing, operating, maintaining and repairing any utilities which Financial may have to obtain from the tract. This easement is subject however, to the obligations of Financial to repair or replace in kind and in quality any damage caused by Financial to the improvements of caused by the exercize of the rights herein contained. It is further felt that there should be some basic outline as to the development of our tract as well as the future development of your tract and the following are some of our ideas. Mr. Norvin L. Swager August 9, 1978 Page Three Financial, following the execution and delivery hereof, shall develop its tract as a K mart Shopping Center substantially in accordance with and in areas shown on the site plan. All such construction shall be done in a first -class workmanlike manner and all buildings shall be sprinklered. In addition, Financial shall install paving on the tract along the southern boundaries of the Financial Tract in the easement area of the Northern States Power Company. The total parking spaces on the Financial Tract and those constructed on the easement area shall be in a ratio of six (6) for each one thousand (1,000) feet of net leasable area of the buildings on the Financial Tract. Financial agrees that it will not reduce the number of parking spaces on its tract and agrees that it will maintain the number of spaces con- structed by Financial on its property. The future expansion of the tract shall be in areas shown on the site plan and agrees that any expansion next to the wall of the K mart building will be constructed with a separate wall so that developments will remain separate and distinct. This would not include any covered pedestrian walk which would be for use of tenants, invitees, licensees and employees of the tenants of either the Financial or tracts. furthers agrees that it will not change points of ingress /egress or the location of cruise lanes on its tract without the approval of Financial. The following are covenants we have used in the past relative to the payment of taxes, damage or destruction and replacement of the property. Mutual Covenants of Each Party Hereto Each party hereto shall pay at least ten (10) days prior to fore- closure all taxes and assessments, the payment of which would be secured by a lien upon any tract referred to herein owned by such party, and shall promptly, upon request of the owner of any other tract affected hereby, furnish to such owner tax receipts evidencing such payment. Each party hereto shall maintain all buildings, improvements and utilities located upon its respective tract in a sould structural, operating condition and shall maintain the exterior surfaces of such building in a state of good repair. Each party hereto shall maintain, light and stripe those areas on its respective tract designed for the use of pedestrian and vehicular 0 Mr. Norvin L. Swager August 9, 1978 Page Four ingress and egress and vehicular parking in a first - class, clean condition. In the event of any destruction of, or damage of any improvements upon any portion of the property affected by this Agreement, the owner of such tract shall, at owner's option either: (a) Cause such improvements to be repaired, reconstructed and restored as nearly as practicable to the condition existing just prior to such damage or destruction; or (b) Cause other improvements to be constructed on the area covered by the destroyed or damaged improvements, which other improvements are similar to, compatible with and integrated with the remaining development; or (c) Cause the area covered by the destroyed or damaged improvements to be razed and the area then to be made free of any hazards or un- sightly conditions. Any driveways or parking areas will be returned to their condition just prior to damage or destruction and all areas shall be kept clean and maintained in a first -class manner. (d) Cause any combination of the foregoing to occur. If either party hereto shall default with respect to any of its obligations set forth in this Agreement and such default shall continue for thirty (30) days after receipt of written notice thereof from the other party (the complaining party), then the complaining party shall have the right to cure such default for the account of the defaulting party and being reimbursed by the defaulting party for reasonable costs and expenses so incurred, plus interest at the rate of eight (8 %) percent per annum. Such right of reimbursement shall be secured by a lien and charge which is hereby created upon the property of the defaulting party affected by this Agreement; however, such lien and charge shall be subordinate and inferior to any mortgage held by an insurance company, bank, trust company, savings and loan association, pension, or profit- sharing trust secured by the property of the defaulting party. The following is an exculpation clause which we have used in the past which is usually beneficial to both parties. Exculpation Notwithstanding any of the covenants and conditions herein contained, no fee owner of all or any part of the respective properties not its partners, shareholders, officers, executors, transferees, heirs, successors and assigns shall be personally liable for any of the obligations arising from this Agreement and that any judgment rendered hereon shall be limited to the fee owner's interest in its tract as aforesaid and no deficiency or other personal judgment order or decree 0 Mr. Norvin L. Swager August 9, 1978 Page Five other than injunctive, shall be rendered against said fee owner or its partners, shareholders, officers, executors, transferees, heirs successors and assigns, in any action or proceeding brought hereunder. After you and your attorney have had a chance to look this over, it may be wise for us have a conference call between our attorney, Henry Rogers of Smith, Cohen, Ringel, Kohler & Martin, 2400 First National Bank Tower, Atlanta, Georgia 30303, telephone (404) 658 -1200, your attorney and our- selves to discuss she bes plan of action. Sincerely, /YI1 NNCIAL PROPERTIES DEVELOPE7 , INC. r James T. Murphy Vice President JTM :js Encldsure CC: Henry S. Rogers Tom Tautges