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HomeMy WebLinkAboutRECIPROCAL EASEMENT AGREEMENT & TERMINATION FO DECLARATION OF RIGHTS, RESTRICTIONS, AFFIRMATIVE OBLIGATIONS & CONDITIONS BY & BETWEEN AUGUSTA, GA AND THE CSRA FOUNDATION PROPERTY HOLDINGS, INC. AND THE SALVATION ARMY Book 01546:0795 Augusta-Richmond County 2016036718 08/31/2016 14:43:32.00 SHEPARD PLUNKETT HAMILTON&BOUDREAUX LLP $0.00 EASEMENT 429 WALKER ST 11111111131111111111110111111111111111111111311111111113111111111111011111111111111111111131 UPPER LEVEL 2016036718 Augusta-Richmond County AUGUSTA, GA 30901 [SPACE ABOVE THIS LINE IS FOR RECORDING INFORMATION1 STATE OF GEORGIA EASEMENT AGREEMENT AND TERMINATION OF DECLARATION OF ( COUNTY OF RICHMOND RIGHTS, RESTRICTIONS,AFFIRMATIVE OBLIGATIONS AND CONDITIONS AND RECIPROCAL EASEMENT AGREEMENT Cross Reference: Realty Reel 220,Page 2133 THIS EASEMENT AGREEMENT AND TERMINATION OF DECLARATION OF RIGHTS, RESTRICTIONS, AFFIRMATIVE OBLIGATIONS AND CONDITIONS AND RECIPROCAL EASEMENT AGREEMENT ("Agreement") is made and entered into this 3015'—' day of6(11,, , 2016, by and among AUGUSTA, GEORGIA, a political subdivision of the State of ("City"), and CSRA FOUNDATION PROPERTY HOLDINGS, INC., a Georgia nonprofit corporation, and THE SALVATION ARMY, a Georgia nonprofit corporation (collectively, "Charity"). WITNESSETH: WHEREAS, City owns those parcels of land (collectively, the "City Property") lying and being in Augusta,Richmond County, Georgia, and designated at Tract 1, Tract 2, and Tract 3 on that certain Plat for Augusta, Georgia by Cranston Engineering Group, P.C., dated June_, 2016, and attached as Exhibit A to this Agreement(the"Plat"); WHEREAS, Charity owns that parcel of land (the "Charity Property") lying and being in Augusta, Richmond County, containing approximately 12.034 acres, bearing the current Richmond County tax parcel number 085-2-173-00-0 and described in that deed from McKnight Properties, Inc. in favor of The Salvation Army dated December 9, 2009, and recorded in the Office of the Clerk of the Superior Court of Richmond County, Georgia in Book 1244, page 416 (the City Property and the Charity Property are collectively referred to as the"Property"); WHEREAS, the Property is served by common access drives, common parking areas, and possibly common utilities located upon portions of each of the City Property and the Charity Property; WHEREAS, the Property, is subject to various covenants, restrictions, easements, and other agreements pursuant to that Declaration of Rights, Restrictions, Affirmative Obligations and Conditions and Reciprocal Easement Agreement dated January 13, 1986, and recorded in the 1 00964912-2 Book 01546:0796 Augusta - Richmond County 2016036718 08/31/2016 14:43:32.00 Office of the Clerk of the Superior Court of Richmond County, Georgia in Realty Reel 220, page 2133, as amended(the"Existing Declaration"); WHEREAS, the Existing Declaration also encumbers additional property (the "Additional Property") owned by City and described as "Additional Retail" and "Additional Use" in the Existing Declaration; and WHEREAS, the parties desire to terminate the Existing Declaration and desire to impose certain other easements upon the Property as described in this Agreement. NOW THEREFORE, for and in consideration of TEN AND NO/100 DOLLARS ($10.00), and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be bound, Charity and City (collectively, "parties" and individually, a "party"), for themselves, their successors in title and assigns, do hereby declare, establish, grant, convey, impose and provide as follows: 1. Termination of Existing Declaration. The parties hereby release the Property and the Additional Property from the encumbrance and burdens of the Existing Declaration and hereby terminate the Existing Declaration. 2. Access Easement. City grants to Charity a non-exclusive and perpetual easements over the property (the "Access Easement Area") consisting of an existing driveway located partially on the northeastern portion of Tract 2 and partially on the southwestern portion of Tract 3 and shown as "Access Easement" on the Plat for (i) vehicular and pedestrian ingress, egress, and regress, and for the maintenance, repair and replacement of the driveway and curbing located within the Access Easement Area, and(ii)for the installation, use, repair and replacement of underground utility lines, and the connection to existing utility lines, within the Access Easement Area. In the event any party disturbs the ground or improvements within the Access Easement Area during its use of its easement, such party shall promptly return such ground and improvements to a good and attractive condition, equal or better to the condition prior to such disturbance. Each party shall have the right to maintain and repair the driveway within the Access Easement Area, and each party, within 30 days of request of the other party, shall pay one-half of all reasonable costs and expenses incurred in such maintenance and repair. 3. Utility Easements. Subject to the terms and limitations set forth in this Section of this Agreement, the parties hereby grant, bargain, sell and convey to each other non-exclusive and perpetual easements for installation, use, maintenance, and repair of, and connection to, underground electric, communication, water, sewer, storm water, and gas lines and related equipment and apparatus, on and under all areas of the Property containing no existing vertical improvements. a. The parties desire that all utility lines enter each party's property from the public street or from the Access Easement Area so as to avoid any party's property being burdened by utility lines serving another party's property. Accordingly, each party shall use all commercially reasonable efforts, including incurring additional reasonable costs, to make future connections to utility lines lying in the existing or planned public streets or from the Access Easement Area. b. Any exercise of the easement rights pursuant to this Section shall be made with the burdened party's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, and shall be completed in a 2 00964912-2 Book 01546:0797 Augusta-Richmond County 2016036718 08/31/2016 14:43:32.00 commercially reasonable manner so as to not unduly to interfere with the business operations on the burdened party's property, and shall be done at the sole cost and expense of the party requesting the utility line. c. The location of any utility lines and apparatus installed pursuant to this Section shall be in the locations approved by the burdened landowner, which approval shall not be unreasonably withheld,conditioned or delayed. d. All work undertaken pursuant to this Section shall be at the sole cost and expense of the party exercising such easement rights, shall be done pursuant to plans approved by the burdened landowner, and shall be completed in a commercially reasonable manner so as to not unduly to interfere with the business operations on the such burdened party's property. Within 72 hours of completion of any work pursuant to this Section, the party undertaking such work shall return any disturbed ground to its substantially pre-disturbed condition in a first-class manner. e. Upon the request of either party, and at the sole cost of the requesting party,this Agreement shall be amended to limit the area of any utility easement to the as- built location of such utility line (with the requesting party to pay for all surveying fees to locate such easements). f. Either party, at its own expense, may relocate utility lines located on its land so long as utility service to the other party is reasonably maintained. 4. Parking Easements. Subject to the terms and limitations set forth in this Agreement, the parties hereby grant, bargain, sell and convey to each other non-exclusive and perpetual easements for the temporary parking of customer and visitor passenger automobiles over those portions of the Property paved and striped as customer and visitor parking areas from time to time, together with access easements over all driveways and parking aisles within the Property necessary to access said parking spaces (the "Parking Easements"). Nothing herein shall authorize or permit any party, or its invitees, to use another party's property for parking of other types of vehicles, including employee and contractor automobiles, trucks, buses, or construction equipment, or for the long term parking of vehicles. Notwithstanding the perpetual nature of the Parking Easements, each party may reconfigure its portion of the Property (excluding Tract 2) from time to time and may relocate, replace or remove parking areas in its sole and absolute discretion, subject to the"Parking Requirements"section below. 5. Parking Requirements. In the event that any party constructs a new building (or expands an existing building) on its portion of the Property after date of this Agreement, such party shall construct the number of parking spaces on such party's portion of the Property as reasonably necessary to support the users of such new building (or expanded portion of an existing building), or the number of parking spaces required by applicable law, whichever is greater. The intent of the parties is that each party's property be self-sufficient with respect to parking for all new buildings (or expanded portions of existing buildings) constructed after the date of this Agreement. Notwithstanding the foregoing, Charity shall not be required to increase the number of parking spaces on its portion of the Property upon a demolition and reconstruction of the existing building on the Charity Property unless the square footage of such existing building is increased or unless required by applicable law. 3 00964912-2 • • Book 01546:0798 Augusta- Richmond County 2016036718 08/31/2016 14:43:32.00 6. No Modification of Tract 2 or Common Driveway. Notwithstanding anything to the contrary in this Agreement, neither the driveway within the Access Easement Area nor the parking spaces, aisles, driveways or curbing within Tract 2 shall be modified without the prior written consent of the owner of Tract 2 and the owner of the Charity Property. 7. Insurance Requirements. During any period when a party is conducting any work on the other party's property,the following provisions shall be in force and effect: a. The party conducting the work shall procure and maintain in full force and effect general public liability insurance and property damage insurance against claims for personal injury, death or property damage occurring upon, in or about its the affected property, to afford protection to the limit of not less than $1,000,000.00 for injury or death of a single person, and to the limit of not less than $1,000,000.00 for any one occurrence, and to the limit of not less than $1,000,000.00 for property damage. The party conducting the work shall provide the other party with certificates of such insurance from time to time upon written request to evidence that such insurance is in force. Such insurance may be written by additional premises endorsement on any master policy of insurance carried by the party which may cover other property in addition to the property covered by this Property. In the event that City is required to carry insurance under this section,the City shall be entitled to self-insure such risks. b. All contractors and others performing work on a party's portion of the Property pursuant to easements under this Agreement shall carry general liability insurance in the amounts set forth above and worker's compensation insurance as required by law and shall provide the party owning such property with certificates of insurance naming such party as an additional insured prior to the commencement of any such work. c. Each owner of any portion of the Property for itself and its property insurer hereby releases the other owners of portions of the Property from and against any and all claims, demands, liabilities or obligations whatsoever for damage to property or loss of rents or profits resulting from or in any way connected with any fire or other casualty whether or not such fire or other casualty shall have been caused by the negligence or the contributory negligence of the party being released or by any agent, associate or employee of the party being released, this release being to the extent that such damage or loss is covered by the property insurance which the releasing party is obligated hereunder to carry, or, if the releasing party is not carrying that insurance, then to the extent such damage or loss would be covered if the releasing party were carrying that insurance. 8. Binding Effect. Any party in possession of all or any part of the Property (whether as owner, tenant, mortgagee, or otherwise) shall have the right to extend to its tenants, customers, guests and invitees the benefit of the rights and easements established hereby, but no such tenant, customer, guest or invitee shall by virtue thereof be deemed to have acquired any interest whatsoever in the Property or any part thereof. The benefits and burdens of the easements created in this Agreement shall run with title to the Property and shall be binding upon and inure to the benefit of the owners of the Property and their respective heirs, executors, successors-in- title, tenants, and assigns, and all those holding under any of them. Each party may extend the benefits of the easements described in this Agreement to any other property now or hereafter owned by such party in the general vicinity of the Property by recording an instrument in the land 4 00964912-2 Book 01546:0799 Augusta- Richmond County • 2016036718 08/31/2016 14:43:32.00 records of Richmond County, Georgia indicating such extension of easement rights. The easements and obligations contained in this Agreement shall be unaffected by any change in the ownership of any property covered by this Agreement or by any change of use, demolition, reconstruction, expansion or other circumstances, except as specified herein. In the event that the same party owns the properties both benefitted and burdened by the easements and other rights created in this Agreement, such easements and rights shall not be extinguished or otherwise impacted by the doctrine of merger or other legal theory and such easements and rights shall continue in full force and effect. 9. Breach. In the event of a breach or threatened breach of this Agreement, the parties shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach (including, without limitation, the right to obtain injunctive relief). In the event such proceedings are instituted, the non-prevailing litigant shall pay the reasonable attorney's fees of the prevailing litigant. It is expressly agreed that no breach of this Agreement shall result in a cancellation,rescission, or termination of this Agreement. 10. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon deposit in the United States Mail as Certified Mail, Return Receipt Requested, postage prepaid, and addressed to the owner being notified at the address reflected for such owner in the Augusta— Richmond County ad valorem tax records with respect to the portion of the Property owned by such owner. 11. Severability. In the event any provision or portion of this Agreement is held by any court of competent jurisdiction to be invalid or unenforceable, such holding will not affect the remainder hereof, and the remaining provisions shall continue in full force and effect to the same extent as would have been the case had such invalid or unenforceable provision or portion never been a part hereof. 12. Relationship of the Parties. Nothing contained herein shall be construed or interpreted as creating a partnership, joint enterprise or joint venture between or among the parties. It is understood that the relationship between the parties is an arm's length one that shall at all times be and remain separate with respect to their interests in each tract.No party shall have the right to act for or on behalf of another party, as agent or otherwise, unless expressly authorized to do so by separate written instrument signed by the party to be charged or bound. 13. Amendment. The provisions of this Agreement may be modified or amended, in whole or in part, or terminated only by the written consent of all of the record owners of the Property and evidenced by a document that has been fully executed and acknowledged by all such affected record owners and recorded in the official records of Augusta - Richmond County, Georgia. 14. Term of Agreement. Unless otherwise expressly provided herein, the easements and agreements contained herein which bind and benefit the parties shall be deemed to be perpetual and shall be construed to run with the land. 15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 5 00964912-2 Book 01546:0800 Augusta - Richmond County • 2016036718 08/31/2016 14:43:32 00 IN WITNESS WHEREOF, the parties have executed this Agreement effective the day and year first above written. Signed, sealed and delivered in the CSRA FOUNDATION PROPERTY presence�of: HOLD ,S, INC., a I. eorgia corporation (Seal) I C „,, Unofficial Witness Print Name. 51 K. a e . iii, .lith _,:i Title: ri c'S=A tk4 t `{ G eci 'My Coxnj` ..a`. it : es o "'(N�otarial' Seal) Signed, sealed and delivered in the THE SALVATJQN.ARMY, a Georgia nonprofit presence of: cgrporation Pal) ® � & Ada„,./- 45;:' ,-- ' Unofficial Witness PrinteNa ie N!ES!C.SEILER. l,I�L Me. 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