HomeMy WebLinkAbout2004-01-26 WC Recorded Document 3418395 Reciprocal Easement & Maintenance Agreement Etymt-n is
3418395
When recorded return to: ) Space reserved for
recorder's use. ( ; -2_(p - 2° c 4
Dean P. Gisvold )
McEwen, Gisvold LLP )
1100 SW Sixth Avenue #1600 )
Portland, Oregon 97204
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RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT
DATE: January 12, 2004
SDT: SDT Properties LLC, a Nevada limited liability company
c/o Todd Stewart
2650 Washburn Way # 250
Klamath Falls, Oregon 97603 -4357
L &L Holdings: L & L Holdings, LLC, a Minnesota limited liability company
c/o Louis Galland
4718 McDonald Drive Place
Stillwater, Minnesota 55082
:3 ?0
RECITALS:
A. SDT is or will be the owner of certain real property located in the Oak Park
Marketplace, City of Oak Park Heights, Washington County, Minnesota, more particularly
described in the attached Exhibit "A ". Such property shall hereafter be referred to as the "SDT
Property". SDT intends to cause the construction of a KFC /A &W fast food restaurant on the
SDT Property, which will include parking, signage, pedestrian, and vehicular access, and a drive
through lane.
B. L &L Holdings is or will be the owner of certain real property located in the Oak
Park Marketplace, City of Oak Park Heights, Washington County, Minnesota, more particularly
described in the attached Exhibit "A ". Such property shall hereafter be referred to as the "L&L
Property." L&L Holdings intends to construct a Taco John's /Steak Escape fast food restaurant on
the L&L Property, which will include parking, signage, pedestrian and vehicular access, and a
drive thru lane.
C. The site plan for the development of the SDT Property and the L&L Property is
attached hereto as Exhibit "B ". SDT and L &L Holdings are sometimes referred to herein as
Owner, singularly, or as Owners, collectively.
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59 ;O �°�� /5
D. For the mutual benefit of both parties, the parties desire to grant to each other
reciprocal perpetual, nonexclusive easements over and across the two properties under the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the terms and conditions
hereinafter set forth:
1. Easement to L &L Holdings. SDT, as the owner of the SDT Property, grants and
conveys to L &L Holdings, its successors and assigns, for the benefit of L &L Holdings, its
customers, invitees, employees, agents, successors and assigns, a nonexclusive, appurtenant
easement in, to, over, under, along, and across the landscaped, paved, and concrete portions of
the SDT Property for pedestrian and vehicular ingress and egress, and for vehicular parking.
2. Easement to SDT. L &L Holdings, as the owner of the L&L Property, grants and
conveys to SDT, its successors and assigns, for the benefit of SDT, its tenants, customers,
invitees, employees, agents, successors and assigns, and the customers, invitees, and employees
of such tenants, a nonexclusive, appurtenant easement in, to, over, under, along, and across the
landscaped, paved, and concrete portions of the L &L Property for pedestrian and vehicular
ingress and egress, and for vehicular parking.
3. Prohibited Actions. Neither SDT nor L &L Holdings shall: (i) take or permit any
action which causes the easements granted hereby to be dedicated for public use or maintenance
or (ii) locate or permit any fence or other barrier which would unreasonably prevent or obstruct
the passage of pedestrian or vehicular travel or vehicular parking for the purposes herein
permitted within or across the easement areas conveyed in Sections 1 and 2 above (the
"Easement Areas"); provided however, that the foregoing provision shall not prohibit repair and
maintenance activities or the installation of limited curbing and other forms of traffic controls. In
no case shall the installation of limited curbing or other forms of traffic control unreasonably
interfere with the ability of customers, invitees and employee to utilize the Easement Areas,
including the loading and unloading of materials and goods for the operation of the respective
fast food restaurants of the parties.
4. Maintenance Costs. SDT and L &L Holdings shall share equally the costs to
maintain and repair the Easement Areas, which costs shall include, but not be limited to paving,
curb and concrete repair, striping, snow removal, and trimming of trees and cutting of grass, to
the extent the Easement Areas include landscaped and grass seeded areas. The Owners shall
maintain or cause to be maintained the Easement Areas in a safe, attractive condition and state of
repair and in compliance with all applicable laws, rules, regulations, orders and ordinances, and
this Agreement. The Owners will mutually determine the service providers that will perform the
repair and maintenance contemplated by this Agreement, and will pay their respective share of
the costs of such providers, or reimburse one another, as the case may be.
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5. Pole Sign. The Owners acknowledge that a pylon advertising sign ( "Pole Sign")
with logo signs for both restaurants is located on the SDT Property. SDT hereby grants and
conveys to L&L Holdings a nonexclusive easement over and across the SDT Property to service
and replace his logo sign on the Pole Sign, at L&L Holdings' expense. Except for the costs of
servicing and replacing the respective logo signs, which shall be each Owner's sole expense, the
cost of maintaining, repairing, operating and illuminating the signs will be shared equally by the
Owners. Since the parties expect that the electrical costs to illuminate the sign will be a part of
the electrical charges incurred by SDT, SDT will make a reasonable determination of the amount
of its electrical charges that are for the signs and submit such determination to L&L Holdings.
L &L Holdings shall promptly (within fifteen (15) days of receipt of the information) reimburse
SDT for one half of such allocation.
6. Warranties. Each party warrants that it will defend the title and the other party's
interest under this Agreement against any mortgage, tax lien, or construction lien claim affecting
the property on which the easement is located which asserts priority over the interest of the other
party under this Agreement and which is attributable to the party itself or its tenants.
7. Rights of Lenders. No breach of the provisions in this Agreement shall defeat or
render invalid the lien of any mortgage or deed of trust now or hereunder executed which affects
the parties' respective interests pursuant to this Agreement; provided, however, that upon any sale
under foreclosure of any mortgage or under the provisions of any deed of trust, any purchaser at
such sale, and its successors and assigns, shall hold any and all property interest so purchased
subject to all of the provisions of this Agreement.
8. No Waiver. The failure of any party to insist upon strict performance of any of
the terms, covenants, or conditions hereof shall not be deemed a waiver of any rights or remedies
which that owner may have hereunder or at law or equity and shall not be deemed a waiver of
any subsequent breach or default in any of such terms, covenants, or conditions.
9. Attorneys Fees. In the event suit or action is instituted to interpret or enforce the
terms of this Agreement, the prevailing party shall be entitled to recover from the other party
such sum as the court may adjudge reasonable as attorneys' fees at trial, on appeal of such suit or
action, and on any petition for review, in addition to all other sums provided by law.
10. Indemnities. Each party shall defend, indemnify and hold the other harmless
from any claim, loss, liability, or expense (including reasonable attorneys' fees) arising out of or
in connection with the party's own negligence or failure to comply with the terms, restrictions,
and provisions of this Agreement.
11. Entire Agreement. Each party agrees as material consideration for the execution
of this Agreement that there are and were no verbal or written representations, understandings,
stipulations, agreements, or promises pertaining to the subject matter of this Agreement not
3 - RECIPROCAL EASEMENT AND MAINTENANCE AGREEMENT dpg\s &hs3195.rea
incorporated in writing herein. This Agreement supersedes and replaces all written and oral
agreements previously made or existing with respect to the matters set forth above.
12. Governing Law. The law of the State of Minnesota shall govern the validity,
interpretation, construction, and performance of this Agreement. If, for any reason or to any
extent any word, term, provision, or clause of this Agreement or its application to any person or
situation, shall be found by a court or other adjudicating authority to be invalid or unenforceable,
the remaining words, terms, provisions, or clauses shall be enforced, and the affected word, term,
clause, or provision shall be applied, to the fullest extent permitted by law.
13. Notices. Notices given pursuant to this Agreement must be in writing. They shall
be deemed to have been duly given: (i) upon delivery or refusal to accept delivery, if
hand- delivered; (ii) when transmitted, if sent by fax with confirmed receipt, followed by a "hard"
copy delivered by any other method specified in this Section 13; or (iii) one (1) business day after
being deposited for next day delivery with Federal Express or other national overnight courier
service. In each case, notice shall be addressed to the parties at their respective addresses
identified on the first page of this Agreement, or to such other place and with such concurrent
copies as the parties may subsequently designate by written notice.
14. Insurance. Each Owner shall obtain and maintain comprehensive general
liability insurance as described below, naming the other Owner as an additional insured against
liability arising out of the respective usage of the reciprocal easements granted in this Agreement:
Minimum General Liability Coverage: $1,000,000 bodily injury and property
damage combined single limit liability per occurrence and aggregate.
15. Taxes and Liens. Each owner shall pay all taxes levied against their respective
property, and shall not allow or permit any lien to placed against the property of the other owner.
16. No Hazardous Substances. Each Owner shall not use, generate, manufacture,
produce, store, release, discharge, or dispose of on, under or about the Easement Areas any
hazardous substance or allow any other person or entity to do so except in such amounts as may
be permitted by law in strict compliance with such law.
17. Amendment. Except as otherwise set forth herein, this Agreement may not be
modified, amended, or terminated except by the written agreement of both parties. A party may
waive one or more of its rights under this Agreement in writing signed by the party, and such
writing need not be recorded. Otherwise, no modification or amendment of any provision of this
Agreement shall be binding unless signed by both parties and recorded in the real property
records of the County in which the property is located.
18. No Dedication. Except as otherwise expressly herein provided, nothing herein
contained shall be deemed to be a gift or dedication of the Easement Areas or of any portion
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thereof to the general public, or for any public use or purpose whatsoever. Except as herein
specifically provided, no right, privileges or immunities of any owner hereto shall inure to the
benefit of any third party, nor shall any third party be deemed to be a beneficiary of any of the
provisions contained herein.
19. Compliance with Laws. Each Owner shall promptly comply with all laws,
ordinances, regulations, directions, rules, and other requirements of all governmental authorities
applicable to the use or occupancy of their respective property.
20. Good Repair. Each Owner shall keep all buildings, other improvements, and
landscaping now existing or that shall be placed on their respective property in good condition
and repair, and shall not permit any waste or removal of such improvements.
21. Due Diligence; Acts of God. In all situations arising out of this Agreement, the
Owners shall attempt to avoid and minimize the damages resulting from the conduct of the other
Owner. Each Owner shall take all reasonable measures to effectuate the provisions of this
Agreement. Whenever performance is required of an Owner, that Owner shall use due diligence
to perform and take all necessary measures in good faith to perform; provided, however, that if
completion of performance shall be delayed at any time by reason of acts of God, war, civil
commotion, riots, strikes, picketing or other labor disputes, unavailability of labor or materials,
damage to work in progress by reason of fire or other casualty, or any cause beyond the
reasonable control of an Owner, then the time for performance as herein specified shall be
appropriately extended by the amount of the delay actually so caused. The provisions of this
section shall not operate to excuse an Owner from the prompt payment of any monies required by
this Agreement.
22. Effect of Breach. It is expressly agreed that no breach of this Agreement shall
(i) entitle any owner to cancel, rescind or, otherwise terminate this Agreement or (ii) defeat or
render invalid the lien of any mortgage or deed of trust made in good faith and for value as to any
part of the property. However, such limitation shall not affect in any manner any other rights or
remedies which an Owner may have hereunder by reason of any such breach.
23. Term. The easements, covenants and restrictions of this Agreement shall be
perpetual, run with the land, and shall be binding on all parties, their successors, and assigns, and
all persons claiming under them, provided that this Agreement may be amended as set forth in
Section 17.
24. Time of Essence. Time is of the essence of this Agreement.
25. Counterpart. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which when executed and delivered shall together
constitute one and the same instrument.
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26. Interpretation; Construction. The terms of this Agreement have been fully
negotiated by the parties in consultation with counsel, and the wording of this Agreement has
been arrived at by all of them as a result of their joint discussions. Accordingly, no provision of
this Agreement shall be construed against a particular party or in favor of another party merely
because of which party (or its representative) drafted or supplied the wording for such provision.
Except where otherwise noted in context, all references to "Sections," "Exhibits," or "Schedules"
shall be deemed to refer to the sections or subsections, as appropriate, exhibits, or schedules of
this Agreement. Section headings appearing in this Agreement are inserted solely as reference
aids for the ease and convenience of the reader; they shall not be deemed to modify, limit, or
define the scope or substance of the provisions they introduce, nor shall they be used in
construing the intent or effect of such provisions. Where the context requires: (i) use of the
singular or plural incorporates the other, and (ii) pronouns and modifiers in the masculine,
feminine, or neuter gender shall be deemed to refer to or include the other genders.
27. Authorization. The execution, delivery, and performance of this Agreement have
been duly authorized and approved by each Owner, and the person executing this Agreement on
behalf of each Owner has been duly authorized to so execute this Agreement.
28. Performance. In the event that the last day permitted for the performance of any
act required or permitted under this Agreement falls on a Saturday, Sunday, or a bank holiday,
the time for such performance will be extended to the next succeeding business day.
IN WITNESS WHEREOF, the foregoing was executed as of the day and year first above
written.
SDT: SDT PROPERTIES LLC, a Nevada limited liability company
By:
Name: 7
Its: /`to.tt. ✓t, v.•"L=r
L &L Holdings: L & L HOLDINGS, LLC, a Minnesota limited liability company
4
v
By: 4
Name: LL' LOOS ( a / f iic)
Its: 4 14 t atri 1nry.LZ^
[Notary acknowledgments on following page.]
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STATE OF OREGON )
) ss.
County of Klamath )
This instrument was acknowledged before me on January 0q , 2004, by Todd Stewart as
the Qopepatirgivfamager of SDT Properties LLC, a Ne ada li d 1 bility company.
M,1,noyrt Mt w►bR/
4 OFFICIAL SEAL Notary Pu 'c or Oregon
CUNT G. FANNING
. M Commission Expires: ,
COMMISSION O. y p X13 11 241'.15
MY COMMISSION EXPIRES FEB. 11, 2005
STATE OF MINNESOTA )
) ss.
COUNTY OF A.,1161,-,, )
The foregoing instrument was acknowledged before me on January 13 , 2004, by
(.a w s j c,a-1 lava , the of
L & L Holdings, LLC, a Minnesota limited liability company, on behalf of the company.
, ��
" UE �<< 6 Notary Public for Minnesota
r ,r,/ Pub +c My Commission Expires: Jl3/
^�`4 Y c . to
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EXHIBIT "A"
Legal Description of
SDT Property
(KFC /A &W Restaurant)
Lot 1, Block 1, of the Plat of Oak Park Marketplace, according to the official plat
on file in the office of the Clerk and Recorder of Washington County, Minnesota,
recorded on the 2 day of January, 2004, under Document No. 31115 B 7 .
Legal Description of
L &L Property
(Taco John's /Steak Escape Restaurant)
Lot 2, Block 1, of the Plat of Oak Park Marketplace, according to the official plat
on file in the office of the Clerk and Recorder of Washington County, Minnesota,
recorded on the 2 ' day of January, 2004, under Document No. S`11 1 S 87 .
' ENTERED 1N TRANSFER RECORD
WASHINGTON COUNTY, MINNESOTA
0
iTOZ- TREASURER
CJ
i r/ UTY
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EXHIBIT "B"
Site Plan
[See attached.]
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