SIDEWALK ACCESS EASEMENT AGREEMENT

Transcription

1 SIDEWALK ACCESS EASEMENT AGREEMENT THIS SIDEWALK ACCESS EASEMENT AGREEMENT ( Agreement ) is made by and among WATERWALK PLACE OWNERS ASSOCIATION, a Kansas non-profit corporation ( WWP ), FOUR-G, LLC, a Kansas limited-liability company ( 4-G ) and the CITY OF WICHITA, KANSAS ( City ) (WWP, 4-G, City and their successors and assigns are hereinafter sometimes referred to individually as a Party and collectively as the Parties ); to be effective as of the date executed by all three Parties. RECITALS 1. WWP is the owners association responsible for the maintenance and management of the Common Area (as that term is defined in the Declaration of WaterWalk Place, a Condominium Development, recorded on June 3, 2008, at Film with the Sedgwick County, Kansas, Register of Deeds ( Declaration )), for the condominium ( Condo Building ) located on that certain real property described on Exhibit One attached hereto as the Condo Tract Legal Description (the Condo Tract ). The South wall of the Condo Building is located immediately North of the North property line of the Hotel Tract. There is a door on the South side of the Condo Building that opens onto a concrete pad and a West-to-East sidewalk ( Pad and Sidewalk ) that provide ingress and egress from the South side of the Condo Building to and from the Southeast corner of the Condo Building. The Pad and Sidewalk lie within the Hotel Tract just South of the North property line of the Hotel Tract, as depicted on the ALTA/ACSM Land Title Survey of the Hotel Tract prepared by William K. Clevenger of Ruggles & Bohm, P.A., dated February 16, 2010 (the Survey ) G is or is contemplated to be the tenant under a long-term ground lease from City of that certain real property described on Exhibit Two as the Hotel Tract Legal Description (the Hotel Tract ). 3. The Parties desire to establish an easement for access, ingress and egress over the portion of Hotel Tract currently utilized for the Pad and Sidewalk as shown on Exhibit Three and the Survey (the Access Easement Tract ), and to further establish the terms and obligations relating to the location and relocation of the Access Easement Tract and installation and maintenance of the Pad and Sidewalk.

2 AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows: 1. Grant of Access Easement. The owner of Hotel Tract grants and conveys to each Owner (as that term is defined in the Declaration); their successors and assigns; WWP; each Owner s respective tenants and occupants; and each Owner s, tenant s and occupants respective subtenants, vendors, employees, agents, guests, family members and invitees; an appurtenant, non-exclusive, perpetual easement to run with the land for pedestrian access, ingress and egress over and across the (A) Access Easement Tract, and (B) such temporary access to additional portions of the Hotel Tract as may be reasonably necessary from time-to-time to maintain, repair and replace the Pad and Sidewalk as provided in this Agreement. Notwithstanding the foregoing, the easement granted in this instrument will cease and terminate at any time that City permanently waives or ceases all requirements to provide access and egress from the South side of the Condo Building. 2. Maintenance of Access Easement Tract. Except as provided is paragraph 3 below, WWP will maintain, repair and replace the Pad and Sidewalk on the Access Easement Tract. Such maintenance, repair and replacement shall include, but is not limited to (a) keeping and maintaining all surfaces in good, safe, clean and sightly condition; (b) repairing holes and significant surface cracks; (c) resurfacing the covered areas; and (d) removing snow, ice, surface water and debris. 3. Installation, Maintenance and Replacement Costs. All costs and expenses related to the maintenance, repair and replacement of the Pad and Sidewalk on the Access Easement Tract or any portion thereof will be borne by WWP so long as the Access Easement Tract is not used by the owner of the Hotel Tract or its successors and assigns, agents, customers, guests, occupants, invitees, licensees or tenants. From and after any time that the owner of the Hotel Tract or its successors and assigns, agents, customers, guests, occupants, invitees, licensees or tenants make substantial use of the Pad and Sidewalk, or the tenant of the Hotel Tract opens a hotel for business, the cost of maintaining, repairing and replacing the Pad and Sidewalk will be born equally by WWP and the tenant of the owner of the Hotel Tract, and the tenant of the owner of the Hotel Tract shall maintain, repair and replace the Access Easement Tract improvements. 4. Reimbursement. Upon a reasonable time after completion of any maintenance, repair or replacement to the Pad and Sidewalk improvements as permitted in Section 3 (but subject to the limitations set forth in Section 5, and Section 7 related to relocation of the Access Easement Tract), WWP or the tenant of the owner of the Hotel Tract, whichever is the Party performing the maintenance, repair or replacement will provide to the other such Party copies of the paid receipts for such work. The non-performing Party will reimburse the Party performing the work if and as required by Section 3 above within 15 days of receiving the receipts. 5. Maintenance Required Due to Negligent or Intentional Act or Omission. Notwithstanding Sections 2, 3 and 4 above, any maintenance, repair or replacement reasonably required to be performed on the Access Easement Tract that results from the negligent or

3 intentional act or omission of a Party (hereafter the Responsible Party ), or the tenant, agent, employee or invitee of either the Responsible Party or the Responsible Party s tenant, will be the sole responsibility of the Responsible Party. The Responsible Party must promptly notify the other Party of the required maintenance, promptly cause such maintenance, repair or replacement to occur, and will be responsible for the costs and expenses related thereto. However, the City is only a Responsible Party for the repair or replacement reasonably required to be performed due to the negligent or intentional acts of the City and its agents and employees. 6. Failure to Perform Maintenance. If either Party fails to promptly perform or cause to be performed all maintenance, repair and replacement to the Access Easement Tract as may be required of a particular Party under this Agreement, the other Party may provide the failing Party with written notice detailing the maintenance, repair or replacement required to be performed, and if the failing Party does not cause such maintenance, repair or replacement to be completed within 30 days of receipt of such written notice, the Party delivering such written notice will have the right to perform or cause to be performed such maintenance, repair or replacement and charge the costs thereof to the failing Party. The failing Party must reimburse the performing Party such costs within 10 days of receiving an invoice for the work performed. 7. Relocation of the Pad and Sidewalk and Access Easement Tract. 4-G may relocate the Access Easement Tract and the Pad and Sidewalk at any time provided that City approves the relocation and reconstruction and replacement of the Pad and Sidewalk as satisfying any requirement to provide access and egress from the South side of the Condo Building. Such City approval shall not be unreasonably withheld or delayed. 4-G will bear the entire cost and expense of such relocation, reconstruction and replacement. Following any such relocation and replacement, the owner of the Condo Tract will share in the expenses of the subsequent repair, maintenance and replacement of the Pad and Sidewalk and the Access Easement Tract as provided in Sections 3 and 4 above, but owner of the Condo Tract will not be liable for any increased maintenance or replacement costs that result from any increased size of the Access Easement Tract or change of the materials used in the Pad and Sidewalk to more expensive materials to maintain, repair or replace than the concrete originally used for the Pad and Sidewalk. 8. Miscellaneous Provisions. 8.1 Temporary Closing. A Party may temporarily close the Access Easement Tract to perform any installation, maintenance, repair or replacement if said closure is limited to as short a term as is reasonably necessary to perform the required work, and the Party performing the work uses commercially reasonable efforts to coordinate the work and closure with all other Party. 8.2 Enforcement. If a Party fails to perform all of its obligations and covenants under this Agreement, the non-defaulting Party may file a legal action against the defaulting Party seeking legal or equitable remedies, or both. The prevailing Party is entitled to reimbursement from the losing Party for the reasonable costs and expenses incurred, including but not limited to court costs and reasonable attorneys fees.

4 8.3 Covenants Running With the Land. This Agreement, and all of the provisions contained herein and all of the rights and obligations hereunder, shall be and constitute covenants running with the fee simple estate of Condo Tract and Hotel Tract and will bind all present and future owners and leasehold owners thereof. 8.4 Agreement Nonassignable. The rights and obligations under this Agreement may not be assigned except proportionally as part of an assignment or conveyance of any interest in the Condo Tract or Hotel Tract; but rather such rights and obligations will inure to the burden and benefit of the Parties, and any purported assignment of this Agreement is void and of no effect. Notwithstanding the foregoing language of this Section 8.4, nothing shall be construed as limiting any rights to freely transfer, convey and assign any portion of Condo Tract or Hotel Tract. 8.5 Notices. For purposes of this Agreement, any notice, demand, consent, report or other communication required or permitted under this Agreement must be in writing and will be effective at the earliest of (a) its actual delivery, (b) the first business day following its deposit with an overnight courier, charges prepaid, or (c) the third business day following its deposit in the United States certified or registered mail, return receipt requested, postage prepaid. To 4-G: To WWP: To City: Four-G, LLC Attn: James E. Korroch 9340 E. Central, Suite A Wichita, Kansas WaterWalk Place Owners Association Attn: Doulas G. Rupe 515 S. Main, Suite 114 Wichita, Kansas City of Wichita c/o City Clerk 455 N. Main, 13 th floor Wichita, Kansas Waiver. No consent or waiver, express or implied, by any Party to or of any breach or default by any other Party in the performance by such other Party of the obligations thereof under this Agreement shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other Party of the same or any other obligations of such other Party under this Agreement. Failure on the part of any Party to complain of any act or failure to act of any other Party or to declare such other Party in default, irrespective of how long such failure continues, shall not constitute a waiver of such Party of the rights thereof under this Agreement.

5 8.7 Severability. If any provision of this Agreement or the application thereof to any entity or circumstance is invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to any other entity or circumstance will not be affected thereby and must be enforced to the greatest extent permitted by law. 8.8 Amendment. Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the Party against whom enforcement of the change, waiver, discharge or termination is sought. 8.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof. Any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force or effect Binding Agreement. The provisions of this Agreement apply to, inure to the benefit of and bind the Parties and the respective successors and representatives thereof, including, without limitation, any mortgagee acquiring an interest in any portion of Condo Tract or Hotel Tract, or any improvements thereon, by reason of foreclosure, deed or assignment in lieu of foreclosure or purchase at foreclosure sale; but any such mortgagee may not incur or be required to assume any obligation under this Agreement unless and until such mortgagee has so acquired an interest in any portion of Condo Tract or Hotel Tract, or any improvements thereon by reason of foreclosure, deed or assignment in lieu of foreclosure or purchase at foreclosure sale Interpretation. No provision of this Agreement may be construed against or interpreted to the disadvantage of any Party by any court or other governmental or judicial authority by reason of such Party having or being deemed to have structured or dictated such provision Governing Law. This Agreement and the obligations of the Parties hereunder must be interpreted, construed and enforced in accordance with the laws of the State of Kansas. FOUR-G, LLC By: Name: Its: WATERWALK PLACE OWNERS ASSOCIATION By: Name: Its:

6 CITY OF WICHITA, KANSAS Approved as to Form by City Attorney: By: Carl Brewer, Mayor By: Gary E. Rebenstorf, City Attorney Attest: By: Karen Sublett, City Clerk

7 STATE OF KANSAS ) ) SS. SEDGWICK COUNTY ) This instrument was acknowledged before me on this day of, 2010, by, as of Four-G, LLC, a Kansas limited liability company. Notary Public My commission expires: Notary Printed Name: STATE OF KANSAS ) ) SS. SEDGWICK COUNTY ) This instrument was acknowledged before me on this day of, 2010, by, as of WaterWalk Place Owners Association, a Kansas not for profit corporation. Notary Public My commission expires: Notary Printed Name:

8 STATE OF KANSAS ) ) SS. SEDGWICK COUNTY ) This instrument was acknowledged before me on this day of, 2010, by Carl Brewer, as Mayor of the City of Wichita, Kansas. Notary Public My commission expires: Notary Printed Name:

9 Exhibit One (Condo Tract Legal Description) A tract of platted land lying in the Southeast Quarter, Section 20, Township 27 South, Range 1 East of the 6 th P.M., Sedgwick County, Kansas, being out of Lot One (1), Block Five (5) of the WATERWALK PHASE 2 ADDITION, to the City of Wichita, Sedgwick County, Kansas recorded in Book 2883, Page Said tract of land being particularly described as follows: COMMENCING at the north end of the cutback at the intersection of the west right-of-way line of Main Street and the North right-of-way line of Dewey Street as described in WATERWALK PHASE 1 ADDITION, an addition to the City of Wichita, Sedgwick County, Kansas, the Southeast corner of said Lot One (1); THENCE North 00 00'13" West, along and with the west right-of-way line of Main Street, the East line of said Lot One (1), a distance of feet to the Southeast corner and POINT OF BEGINNING of this tract; THENCE South 89 59'47" West, departing said West right-of-way line, a distance of feet; THENCE South 00 00'13" East, a distance of 0.50 feet; THENCE South 89 59'47" West, a distance of feet; THENCE North 00 00'13" West, a distance of feet; THENCE North 89 59'47" East, a distance of feet; THENCE South 00 00'13" East, a distance of 0.50 feet; THENCE North 89 59'47" East, a distance of feet to a point on the west right-of-way line of Main Street, the East line of said Lot One (1); THENCE South 00 00'13" East, along and wit h said right-of-way line, a distance of feet to the POINT OF BEGINNING.

10 Exhibit Two (Hotel Tract Legal Description) Commencing at the easterly most south corner of Lot 1, Block 5, Waterwalk Phase 2 Addition, an addition to Wichita, Sedgwick County, Kansas; thence N00 00'13"W, along the east line of said Lot 1, feet; thence S89 59'47"W, perpendicular to said east line, feet for a place of beginning; thence S00 00'13"E, parallel with said east line, feet; thence S45 00'00"W, feet; thence S89 59'47"W, parallel with the south line of said Lot 1, feet; thence N35 19'20"W, feet; thence N00 00'13"W, parallel with said east line, feet; thence N89 59'47"E, parallel with said south line, feet; thence N00 00'13"W, parallel with said east line, 0.50 feet; thence N89 59'47"E, parallel with said south line, feet to the place of beginning.

11 Exhibit Three (Access Easement Tract) Drawing Showing Location of Pad and Sidewalk (see attached)

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