Aldi EasementDocument Number 2017003586 Page 1 of 27
Doc N u m 2017003586
$145.00
04/18/2017 1232-42
Filed & Recorded in the Official Records of
SHARON BLOUNT BAKER, CIRCUIT CLERK
RY-.IFNNIFFR RIGGS
THIS RECIPROCAL EASEMENT AND RESTRICTION AGREEMENT (this
"A ement") is executed, delivered and made effective as of this jj!�-day of
1"1--D &j 1 2017 (the "Effective Date"), by and between Trustees of the Vista
Bills lFree Will Baptist Church ("Vista"), and Aldi Inc. (Kansas), a Kansas corporation
("Aldi").
A. Aldi and Vista entered into that certain Real Estate Purchase Agreement,
dated January 27, 2016, together with all amendments thereto (the "Purchase
Agreement"), As a result, Aldi and Vista each own certain parcels of real property
located at the southwest corner of Edwards Lane and Fayetteville Road in Van Buren,
<s— Arkansas. A copy of a site plan that generally depicts the properties owned by each of
--3the Parties is attached hereto and made a part hereof as Exhibit A.
0 B. Aldi's parcel, containing approximately 2.58 acres, is more particularly
described on Exhibit B, attached hereto and made a part hereof (the ""Aldi Property").
C. Vista's parcel, containing approximately 5.04 acres, located adjacent to
the Aldi Property, is more particularly described on Exhibit C, attached hereto and
made a part hereof (the "Vista Property"; collectively, the Aldi Property and the Vista
Property are sometimes referred to as the "Properties" and individually sometimes as a
"Property").
D. In order to provide for, among other things, the coordinated development
and operation of the Properties, the Parties have agreed to grant to the other certain
easements upon the terms and conditions specifically provided for herein. In addition,
the Parties have agreed to subject the Vista Property to certain restrictions on use and
development, as hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, as set forth in the
foregoing Background Information, and of the mutual promises herein set forth, and
other good and valuable consideration paid, the Parties do hereby agree as follows:
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ARTICLE I
Easements
1.01. Ingress/Egress Easement to Aldi. Subject to the terms and conditions set
forth in this Agreement, Vista hereby grants and conveys to Aldi and its successors and
assigns (including without limitation Aldi's employees, agents, and customers), as an
easement appurtenant to the Aldi Property, for the benefit of the Aldi Property, a
permanent, non-exclusive easement and right-of-way for the purpose of pedestrian and
vehicular (including Aldi's delivery tractor trailers) ingress, egress, passage between
and among the Properties and public roads, and traffic upon, over, across, and through
the driveways (including, but not limited to, the "Critical Access Drive", generally
depicted on Exhibit A, located on the Vista Property, as applicable), drive aisles, and
walkways on the Vista Property, as they may exist and/or be modified from time to time.
Vista hereby reserves the right to use the foregoing easement areas for all purposes
that will not interfere with Aldi's full enjoyment of the rights granted hereby. Vista shall
further have the right to relocate or otherwise modify any and all of such driveways,
drive aisles, and walkways; provided, however, Vista shall not alter, relocate, or close
the portions of the Critical Access Drive located on the Vista Property without the prior
written consent of Aldi, which consent not to be unreasonably withheld, conditioned, or
delayed.
1.02. Ingress/Egress Easement to Vista. Subject to the terms and conditions
set forth in this Agreement, Aldi hereby grants and conveys to Vista and its respective
successors and assigns, as an easement appurtenant to the Vista Property, a
permanent, non-exclusive easement and right-of-way for the purpose of pedestrian and
vehicular ingress, egress, passage between and among the Properties and public
roads, and traffic upon, over, across, and through the driveways, drive aisles, and
walkways on the Aldi Property as they may exist and/or be modified from time to time.
Aldi hereby reserves the right to use the foregoing easement areas for all purposes that
will not interfere with Vista's full enjoyment of the rights granted hereby. Aldi shall
further have the right to relocate or otherwise modify any and all of such driveways,
drive aisles, and walkways.
1.03. Parking Easement.
a. Definitions, As used in this Agreement, "Church Parcel" and "Vista
Parking Area" shall refer to those areas that are generally identified
and depicted on Exhibit A.
b. Except as specifically provided in Section 1.03(c) there shall be no
easement for vehicular parking upon, over, and across the Properties
granted by this Agreement.
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c. Notwithstanding anything in Section 1.03(b), and subject to the terms
and conditions set forth in this Agreement and those specific conditions
set forth in Section 1.03(d), Aldi hereby grants a non-exclusive
easement in gross for the sole benefit of Vista for so long as Vista
owns the Church Parcel for the limited purpose of passenger vehicular
parking over, across, and through the 20 parking spaces situated
within the Vista Parking Area and only by persons while they are
attending a church function on the Church Parcel (the "Aldi Parking
Easement"). Aldi hereby reserves the right to use the foregoing
easement areas. Aldi shall have the right to relocate, or otherwise
modify, any and all of the Vista Parking Area; provided, however, that
Vista shall at all times be entitled to access to 20 parking spaces on
the Aldi Property. The Aldi Parking Easement shall automatically
terminate immediately upon occurrence of either of the following: (i) a
transfer by Vista to a third party of any interest in the Church Parcel,
whether in whole or in part, or by sale, lease, license, or otherwise; or
(ii) Vista no longer operates a church on the Church Parcel (an "Aldi
Parking Easement Termination Event"). Vista hereby agrees to
provide 10 days written notice prior to an Aldi Parking Easement
Termination Event and that Aldi shall not be required to provide notice,
or take any other action, prior to enforcing its rights after an Aldi
Parking Easement Termination Event. Aldi and Vista expressly agree
that they do not intend for the Aldi Parking Easement to be a covenant
running with the land.
d. The parking easement granted by Aldi described in 1.03(c) shall be
conditioned upon the following,
i. Vista shall maintain the parking spaces, including the number
and width thereof, along with the parking spaces, parking lanes
and parking bays, located on the Vista Property, at a minimum,
in accordance with all applicable laws without variance therefor;
ii. the Vista Property shall contain sufficient parking spaces in
order to independently comply with all governmental
requirements (without variance) without reliance upon any
parking spaces located on the Aldi Property; and
iii. Vista shall only be permitted to use the Vista Parking Area
during 25 days per calendar year.
1.04. Utility. Easement to Aldi. Subject to the terms and conditions set forth in
this Agreement, Vista hereby grants and conveys to Aldi and its successors and
assigns, as an easement appurtenant to the Aldi Property, a permanent, non-exclusive
easement over, under and across the Vista Property as may be necessary for the
installation, operation, flow, passage, use, maintenance, connection, repair, relocation,
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and removal of utility lines, connections, and related improvements (collectively, "Utility
Lhmwe^ and individually, o "Utility LAna.), together with the right of >ngn*oo and egress
for the foregoing purposes. Utility Lines inu|ude, but are not limited to, sanitary sewers,
storm drains, water (fine and domestic), gae, e|aoUjcai and telephone and other
communication lines. Vista shall have the right to relocate a Utility Line located upon its
Property atany time upon 30-doys prior written notice to/Ndi; provided, however, that
such relocation (a) shall not interfere with or diminish the utility mawioe to the AJdi
Property; shall not reduce or unreasonably impair the usefulness or function of such
Utility Lime; (b)shmU be performed without cost mrexpense hyAWi; and (n) shall be
completed using materials and design standards which equal or exceed those originally
used. A|dinheU instaU, maintain, and napiaom, atits sole cost and expense and in e
good condition, its UUUh/ Lines that are located on the Vista Property (unless the
provider of the service or a governmental or quasi -governmental authority has agreed to
me|nbsio such Utility Line). Any |nstoUaUun, maintenance, vopair, na(ocetion, and
removal of Utility Lines located on the Vista Property shall be performed in such o
manner as to cause as little disturbance in the use of the Vista Property as is
practicable under the circumstances. Following A/di'a inskaUetion, mainbmnanuo, or
replacement of a Utility Line on the Vista Property, Aldi shall restore the affected portion
of the Vista Property to a condition equal to or better than the condition which existed
prior tucommencement cfsuch work.
1.04. TeMDorary Construction Easement to Aldi, Subject to the terms and
conditions set forth in this Agreement, Vista hereby grants and conveys toAldiand its
successors and assigns (including vN#)ouk limitation /QdYo employees, agents, and
contractors), a non-exclusive temporary construction easement and hght-of-woyfor the
benefit of the Aldi Property, but only during a period of construction on the Aldi Property
and to the extent needed in accordance with good construction pnocticem, on, over,
aoroao, and through the Vista Property for the purposes of facilitating construction on
the Aldi Property and the construction of the detention facilities contemplated by Section
1.05 bo|mw, providing mtemponery means ofaccess for construction vehicles to and
from the A|di Propedy, and facilitating construction of such improvements on the A|di
Property and the construction of such detention facilities. Such construction activities
shall be performed in such a manner as to cause as little disturbance in the use of the
Vista Property as is practicable under the circumstances. Similarly, any construction
activities shall be performed mnthe Vista Property muusho minimize interference with
the business activities conducted on the Aldi Property, and Vista covenants and agrees
to request that all future tenants and assignees of the Vista Property to conduct all
activities soasiuminimize interference with the business activities conducted on the
A|diPvmporty.
1l5 Detention Easement to Aldi. Subject to the terms and conditions set forth
in this Agreement, Vista grants and conveys to Aldi and its successors and assigns, as
an easement appurtenant tothe Aid! Property, a pnrpetua|, non-exclusive easement
over and across the portion of the Vista Pnmpedy, generally depicted on Exhibit E as
the "Proposed Drainage Easenment^, as may be necessary for the purposes of
constmmbng, inataUing, using, ma|nha|ning, modKying, repairing and nap|mo|ng a
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storrnwater detention pond together with stormwater pipes, connections and related
improvements connecting the Aldi Property to such stormwater detention pond
(collectively, as the same may exist from time to time, the "Detention Facilities"),
together with the right of inflow into and outflow out of the Detention Facilities. The
Proposed Drainage Easement and the portion of the Detention Facilities located on the
Vista Property shall not be modified, removed or relocated without the prior written
consent of Aldi, Vista hereby reserves the right to drain stormwater solely from the Vista
Property into such stormwater detention pond within the Proposed Drainage Easement,
provided that such drainage does not materially and adversely impact the Aldi Property
and/or overburden the stormwater detention pond within the Proposed Drainage
Easement. Only the Aldi Property and the Vista Property shall have the right to use the
Proposed Drainage Easement and no other property shall have the right to drain
stormwater into the Proposed Drainage Easement.
ARTICLE 11
Restrictions
2.01. Use Restrictions. Vista, for itself, its successors, and its assigns, hereby
declares and imposes on the Vista Property, for the benefit of the Aldi Property, the
restrictions on use as set forth on Exhibit D, attached hereto and made a part hereof.
ARTICLE III
Maintenance Obligations
3.01. Construction, Maintenance and Repair of the Properties. Subject to the
provisions hereinafter set forth:
(a) Subject to subsection (c) below, Vista shall, at its sole cost,
maintain, or cause to be maintained, the Vista Property and shall construct and maintain
all of the improvements thereon, at all times, in a good and safe condition and state of
repair, Further, while any portion of the Vista Property remains undeveloped, Vista shall
also, at its sole cost, keep the Vista Property seeded and mowed and in a sightly
condition,
(b) Subject to subsection (c) below, Aldi shall, at its sole cost, maintain
or cause to be maintained the Aldi Property and shall construct and maintain all of the
improvements thereon, at all times, in a good and safe condition and state of repair,
Further, while any portion of the Aldi Property remains undeveloped, Aldi shall also, at
its sole cost, keep the Aldi Property seeded and mowed and in a sightly condition.
(c) Aldi shall be responsible for the future maintenance, repair and/or
replacement of the entire stormwater detention pond located within the Proposed
Stormwater Easement; provided, however (i) such costs shall be shared by all owners
of parcels within the Properties which are using the Proposed Stormwater Easement,
pro-rata, based on the relative square footage of each such parcel, (ii) Vista, for so long
as the Trustees of the Vista Hills Free Will Baptist Church owns the Vista Property, shall
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be responsible, at Vista's sole cost and expense, to perform the mowing (and all other
lawn maintenance) within the Proposed Stormwater Easement. Vista may elect (by
,delivering written notice to Aldi) for Aldi to perform such mowing (and all other lawn
maintenance) and Aldi shall perform the same, subject to the reimbursement in
subsection (i) immediately above.
(d) A Party shall pay any reimbursement or payment obligation due
under this Agreement within 30 days after receiving from the applicable Party an invoice
therefor, together with supporting invoices and other materials (reasonably satisfactory
to the Party obligated to pay/reimburse) setting forth the actual and commercially
reasonable costs for which the Party obligated to pay/reimburse is liable under this
Agreement.
ARTICLE IV
Insurance; Indemnification
4.01. Insurance. Each Party shall, at its own expense, obtain, carry, and keep
in force commercial general liability insurance against any liability or claim for personal
injury, wrongful death, or property damage for which the Party is responsible to the
other under this Agreement or by law, with financially responsible insurers authorized to
transact insurance business in the State of Arkansas, with a combined single limit of not
less than $1,000,000.00 per occurrence. Such insurance shall include all of the
coverage typically provided by the Broad Form Comprehensive General Liability
Endorsement. Such insurance may be written by additional premises endorsement on
any master policy of insurance which may cover other property in addition to the
Properties which form the subject of this Agreement; provided that the insurer shall
provide a schedule to each Party showing that the coverage provided by such policy
shall (a) meet the requirements of this Agreement; (b) not be reduced by any claims
made with respect to other properties; and (c) be in such amount as will preclude the
insureds from being held to be co -Insurers. The policies shall name Aldi and Vista as
additional insureds (as their interests may appear) and shall provide that they may not
be canceled without 30 days' prior written notice to both insureds. Upon request, each
Party shall provide to the other a certificate of insurance evidencing such coverage.
Notwithstanding the foregoing provisions hereof to the contrary, Aldi shall have the right
to self -insure so long as the tangible net worth of Aldi, or the entity which owns a
controlling interest of Aldi, exceeds $100,000,000 and the self -insuring Party is
consistently able to meet its financial obligations as they mature.
4.02. Indemnification.
(a) By Vista. Except for injuries, deaths, losses, damages, or other matters
resulting from the acts or omissions of Aldi or of Aldi's agents, employees, servants,
contractors, and licensees, Vista shall indemnify Aldi and save it harmless from and
against all loss, liability, damage, actions, causes of action, or claims for injury, death,
loss, or damage of whatever nature to any person, property, or business interest caused
by, or resulting from, an act or omission of Vista or of Vista's agents, employees,
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servants, contractors, or licensees arising out of Vista's use and occupancy of the Vista
Property and from and against any and all costs, expenses, or liabilities (including
reasonable fees of attorneys, paralegals, experts, court reporters, and others) incurred
by Aldi in connection with any claim, action, or proceeding in respect of any such loss,
liability, damage, or claim.
(b) By Aldi. Except for injuries, deaths, losses, damages, or other matters
resulting from the acts or omissions of Vista or of Vista's agents, employees, servants,
contractors, and licensees, Aldi shall indemnify Vista and save it harmless from and
against all loss, liability, damage, actions, causes of action, or claims for injury, death,
loss, or damage of whatever nature to any person, property, or business interest caused
by, or resulting from, an act or omission of Aldi or of Aldi's agents, employees, servants,
contractors, or licensees arising out of Aldi's use and occupancy of the Aldi Property
and from and against any and all costs, expenses, or liabilities (including reasonable
fees of attorneys, paralegals, experts, court reporters, and others) incurred by Vista in
connection with any claim, action, or proceeding in respect of any such loss, liability,
damage, or claim.
4.03, Lien Removal. If, as a result of either Party's (the "Contracting Party's")
exercise of any of the rights granted to it in this Agreement to enter onto and/or perform
work upon the other Partys Property, a lien is filed by any contractor, subcontractor,
laborer, or materialman, then the Contracting Party shall discharge, bond, or otherwise
remove each such lien within 30 days following written notice from the other Party. If
the Contracting Party fails to so discharge, bond, or otherwise remove any such lien
within such period of time, the other Party may do so, and the Contracting Party shall
reimburse the other Party upon demand therefor for the reasonable cost thereof,
including, without limitation, reasonable attorney fees incurred in discharging such lien
and Interest (as defined in Section 6.02(a) below),
ARTICLE V
Damage and Destruction
5.01. The Aldi Improvements. In the event the improvements on the Aldi
Property (the "Aid! Improvements") are either destroyed or damaged by fire, flood,
earthquake, or other casualty, Aldi shall have no obligation, under this Agreement, to
repair, rebuild, or restore the Aldi Improvements. However, if Aldi elects to repair,
rebuild, or restore the Aldi Improvements after any such damage or destruction, all
construction activities undertaken in connection therewith shall be conducted so as to
minimize interference with Vista's use of the Vista Property and the rights granted to it
under this Agreement. If Aldi elects not to repair, rebuild, or restore the Aldi
Improvements after any such damage or destruction, Aldi shall raze the damaged
improvements and either pave the razed area or seed and maintain such area. The
easements granted to Vista pursuant to Article I hereof shall continue in full force and
effect,
5.02. The Vista Improvements,
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(a) Subject to Section 5.02(b), in the event the improvements on the
Vista Property (the "Vista Improvements") are either damaged or destroyed by fire,
flood, earthquake, or other casualty, Vista shall have no obligation, under this
Agreement, to repair, rebuild, or restore the Vista Improvements, except that Vista shall
be obligated to repair, rebuild, or restore the Critical Access Drive. In the event Vista
repairs, rebuilds, or restores the Vista Improvements after any such damage or
destruction, all construction activities undertaken in connection therewith shall be
conducted so as to minimize interference with Aldi's use of the Aldi Property and the
rights granted to it under this Agreement. If Vista elects not to repair, rebuild, or restore
the Vista Improvements after any such damage or destruction, Vista shall raze the
damaged improvements and either pave the razed area or seed and maintain such
area. The easements granted to Aldi pursuant to Article I hereof shall continue in full
force and effect.
ARTICLE VI
Defaults and Remedies
6.01. Defaults. If any Party (the "Defaulting Party") should fail to observe any
of the terms, conditions, restrictions, or provisions of, or should fail to perform any of its
covenants or obligations under this Agreement within a period of 30 days after the other
Party (the "Non -Defaulting Party") has given to the Defaulting Party written notice
thereof, then the Defaulting Party shall be in default under this Agreement; provided that
if the obligation is of such a nature that the same cannot, with due diligence, be
reasonably performed within such 30-day period, then such default shall be deemed to
have been cured if the Defaulting Party commences such performance within such 30-
day period and thereafter completes the same with due diligence and within a
reasonable time. If a default has occurred and is not cured within the time period
specified in this Section 6.01, then the Non -Defaulting Party shall have all of the rights
and remedies afforded to it set forth in Section 6.02 hereof (whether or not they are
expressly provided by statute or recognized by judicial precedent) and by law. Any right
or remedy afforded to the Non -Defaulting Party may be exercised and enforced
independently or concurrently at any time that such default remains uncured without
waiving any of the Non -Defaulting Party's other rights or remedies, and all of which
shall, to the extent applicable, survive the termination of any right granted in this
Agreement.
6.02. Remedies.
(a) Cure, Following the expiration of the applicable cure period, the Non -
Defaulting Party may, at its election, cure any default of the Defaulting Party under this
Agreement, and, if the Non -Defaulting Party should do so, then it shall be entitled to be
reimbursed for all reasonable and documented costs and expenses expended by it in
connection therewith, together with interest ("Interest") thereon at the lower of (i) the
rate of 10% per annum or (H) the maximum rate permissible from time to time under
applicable law, from the date of the expenditure or the date when it shall have become
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due to the date of payment in full. Such costs, expenses, and Interest shall be payable
upon demand and presentation of such documentation. Any provision of this
Agreement to the contrary notwithstanding, all sums due from a Party under the
provisions of Article VI of this Agreement shall be in all respects subject and
subordinate to the lien of any mortgages or deeds of trust at any time or from time to
time encumbering the Property of the Defaulting Party and to the.rights of the holder(s)
of any indebtedness secured by the same.
(b) Civil Actions. Following the expiration of the applicable cure period and in
order to enforce the rights and remedies available to it, the Non -Defaulting Party may
bring an action against the Defaulting Party (i) for the specific performance of any
obligation undertaken by the Defaulting Party in this Agreement, (ii) for injunctive or
other equitable relief, or (iii) for damages in any court of competent jurisdiction for
Crawford County, Arkansas or such other jurisdiction as may be agreed to between the
Parties.
6.03. Obstruction Events, Notwithstanding anything to the contrary contained in
this Agreement, in the event vehicular access to the Aldi Property is obstructed due to
an obstruction on the Vista Property (including, but not limited to, the Critical Access
Drive) or an activity of an Vista Permittee (each such event, a "Vista Obstruction
Default"), Aldi may notify Vista by any means reasonable under the circumstances,
including via facsimile or telephone, of the Vista Obstruction Default and demand that
the Vista Obstruction Default be remedied. If, after 24 hours after such notice has been
provided, Vista has not (i) remedied the Vista Obstruction Default or (ii) commenced to
remedy the Vista Obstruction Default and thereafter remedied such Vista Obstruction
Default within 24 hours, Aldi shall have the right (but not the obligation) to remedy the
Vista Obstruction Default (including the right to enter upon the Vista Property) and shall
be reimbursed by Vista for the reasonable costs for such remedy in accordance with the
provisions of Section 6.02(a) above. Further, and notwithstanding anything to the
contrary contained in this Agreement, in the event vehicular access to the Vista
Property is completely obstructed due to an obstruction on the Aldi Property or an
activity of an Aldi Permitee (each such event, an "Aldi Obstruction Default"), Vista
may notify Aldi by any means reasonable under the circumstances, including via
facsimile or telephone, of the Aldi Obstruction Default and demand that the Aldi
Obstruction Default be remedied. If, after 24 hours after such notice has been provided,
Aldi has not (i) remedied the Aldi Obstruction Default or (ii) commenced to remedy the
Aldi Obstruction Default and thereafter remedied such Aldi Obstruction Default within 24
hours, Vista shall have the right (but not the obligation) to remedy the Aldi Obstruction
Default (including the right to enter upon the Aldi Property) and shall be reimbursed by
Aldi for the reasonable costs for such remedy in accordance with the provisions of
Section 6.02(a) above. The use of parking spaces in the Seller Parking Area by Aldi
Permittees shall not constitute an Aldi Obstruction Default,
ARTICLE VII
Notices; Notice of Transfer
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7.01. Notices, Any notice or other communication required or permitted to be
given to a Party under this Agreement shall be in writing and shall be deemed effective
upon delivery (or refusal of delivery) when transmitted by one of the following methods
to such Party at the address set forth at the end of this Section 7.01: (a) via a nationally
recognized overnight delivery service (such as FedEx or UPS); (b) by facsimile,
provided, however, that if any notice is given by facsimile, a copy shall also be sent on
the same day for next day delivery by overnight delivery service as provided in the
preceding clause (a); or (c) by certified mail, postage prepaid, return receipt requested.
Either Party may change its address for notice by giving written notice thereof to the
other Party at least ten (10) business days prior to the effective date of such change of
address. The address of each Party for notice initially is as follows:
(a) If intended for Vista, to:
Vista Freewill Baptist Church
c/o Jimmy Bell Real Estate Company
Attn: Mason Shirey
1031 Fayetteville Road
Van Buren, AR 72956
Fax#:
(b) If intended for Buyer, to:
Aldi Inc. (Kansas)
Attn: Director of Real Estate
10505 S. K7 Highway
Olathe, Kansas 66061
Fax #: (913) 768-1069
7.02. Notice of Conveyance. Subject to Section 1.03(c), if a Party (a
"Conveying Party") should convey its fee interest in and to its Property (or any portion
thereof) to another person, it shall promptly notify the other Party of such conveyance in
the manner provided in Section 7.01 hereof, Such notice shall contain the name of the
grantee and the address of such grantee for purposes of receiving notices hereunder.
Unless and until a Conveying Party notifies the other of a conveyance of its fee interest
in and to its Property as provided for herein, notices addressed to the Conveying Party
as provided for in Section 7.01 shall continue to be effective, but the other Party may
also send notices that shall be deemed effective hereunder to such grantee at the tax
mailing address listed for such grantee on the books of the County Assessor of
Property, until such time as the grantee has notified the other Party of a different notice
address in the manner provided in Section 7.01 hereof.
ARTICLE Vill
Miscellaneous Provisions
8.01. Successors and Assigns. This Agreement shall inure to the benefit of and
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be binding upon the respective successors and assigns (including successive, as well
as immediate, successors and assigns) of the Parties.
8.02. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state in which the Properties are situated. For all
litigation, disputes and controversies which may arise out of or in connection with this
Agreement, the undersigned hereby waive the right to trial by jury and consent to the
jurisdiction of the courts in the state in which the Properties are situated. In the event
either Party hereto brings or commences legal proceedings to enforce any of the terms
of this Agreement, the successful Party shall then be entitled to receive from the other
Party(s), in every such action commenced, a reasonable sum as attorneys' fees and
costs, including all fees and costs incurred upon any appeals, to be fixed by the court in
the same action.
8.03. Restoration. Subject to the terms and conditions set forth herein, if, as a
result of the exercise of any easement rights created under this Agreement, a Party
shall damage or disturb the improvements of another Party, the Party causing such
damage or disturbance shall, at its sole expense, promptly repair or restore the Property
of such other Party to, as nearly as possible, the condition existing prior to such damage
or disturbance.
8.04. Duplicate Originals. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be a duplicate original, but all of which,
taken together, shall constitute a single instrument. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document.
8.05. Article and Section Ca Lions. The Article and Section captions contained
in this Agreement are included only for convenience of reference and do not define,
limit, explain, or modify this Agreement or its interpretation, construction, or meaning
and are in no way to be construed as a part of this Agreement.
8.06. Severability. If any provision of this Agreement or the application of any
provision to any Person or any circumstance shall be determined to be invalid or
unenforceable, then such determination shall not affect any other provision of this
Agreement or the application of said provision to any other person or circumstance, all
of which other provision shall remain in full force and effect.
8.07. Amendments in , Writing. No change, amendment, termination, or
attempted waiver of any of the provisions of this Agreement shall be binding upon any
Party unless in writing and signed by the Parties.
8.08, Agreement for Exclusive Benefit of Parties. The provisions of this
Agreement are for the exclusive benefit of the Properties, the Parties (and their
successors and assigns), and the Permittees of the Parties. This Agreement shall not
be deemed to have conferred any rights, express or implied, upon any other persons.
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8.09. No Partnership, Joint Venture or Principal-Aqencv Relationship. Neither
anything contained in this Agreement nor any acts of the Parties shall be deemed or
construed by the Parties, or either of them, or by any third person, to create the
relationship of principal and agent, of partnership, of joint venture, or of any association
between the Parties to this Agreement.
8.10. Reasonableness of Consent or Approval/Further Actions. Whenever a
Party is entitled to exercise some right under this Agreement only with the prior consent
or approval of another Party, such consent or approval shall not be unreasonably
withheld or delayed. If a Party is required to obtain the written consent or approval of
another Party to effectuate a plat, subdivision, or lot split of such Party's property, the
other Party shall not unreasonably withhold, condition, or delay such written consent or
approval.
8.11. Covenants Run With the Land. Except as to the Aldi Parking Easement, it
is intended that the covenants, easements, agreements, promises, and duties of each
Party, as set forth in this Agreement, shall be construed as covenants, and not as
conditions, and that all such covenants shall (subject to the provisions of Section 8.14
hereof) be enforceable against the covenantor and shall also run with the land or
constitute equitable servitudes as between the Property of the respective covenantor,
as the servient tenement, and the Property of the respective covenantee, as the
dominant tenement. If a Property is subdivided and sold, any obligation or expense
attributed to a subdivided parcel shall be deemed an expense of such subdivided parcel
and the then owner thereof. Any owner of a Property which is the subject hereof may
grant the benefit of, or allow the use of, any right, easement, or interest hereunder to
any Permittee of any owner from time to time; provided that any such Permittee shall
have no greater rights than its permitter and shall took solely to its permitter (or to such
permittor's successors or assigns), in each case, for the enforcement of the provision of
this Agreement.
8.12. No Merqer. All of the provisions of this Agreement are for the mutual
benefit and protection of the present and all future owners of the Properties, and if there
should at any time be common ownership of any of the Properties, or any estate
therein, then it is the intention of the Parties that there be no merger into the respective
fee simple estates of the rights and benefits and the obligations and burdens of this
Agreement, but rather that such rights and benefits and such obligations and burdens
shall be separately preserved for the benefit of all future owners of the fee simple
estates in the Properties.
8.13. No Dedication. Nothing in this Agreement shall be deemed to constitute a
gift, grant, or dedication of any portion of the Aldi Property or the Vista Property to the
general public or for any public purpose; provided that the Parties shall have the right to
extend the benefit of any of the easements granted herein to any governmental unit,
public body, and/or utility company for the purpose of the construction, installation,
operation, maintenance, repair, relocation, modification, extension, or alteration of Utility
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Document Number 2017003586 Page 13 of 27
Lines and related facilities, but such grant shall be subject to the terms and conditions
hereof.
8.14. Termination of Liability Upon Transfer. If the owner of a Property should
transfer its fee simple interest (or any portion thereof) in and ownership of such
Property, then the obligation and liability of the transferor for the performance or breach
of any covenant or provision contained in this Agreement, occurring after the date of
such transfer, shall automatically be terminated with respect to only the portion of the
Property conveyed', and the transferee, by the acceptance of the conveyance of such
fee simple interest, shall automatically be deemed to have accepted, assumed, and
agreed to observe or perform all such covenants or provisions after the date of such
transfer,
8.15. Definition of Certain Terms. As used in this Agreement, the term
"Person" means a corporation, association, partnership, limited liability company, trust,
estate, governmental agency, or other entity, as well as an individual or natural person,
unless the context otherwise requires. The term "Permittee" means the respective
employees, agents, customers, contractors, licensees, guests, and invitees of Aldi and
Vista. The term "Party" means Aldi or Vista individually (or "Parties" shall mean Aldi
and Vista collectively) and their respective successors and assigns. The term "business
day" when used herein shall mean a weekday, Monday through Friday, except a legal
holiday or a day on which banking institutions in the State of Florida are authorized by
law to be closed.
8.16. Index of Exhibits. The following exhibits attached to this Agreement are
hereby incorporated herein:
Exhibit A — Site Plan
Exhibit 6 — Aldi Property Legal Description
Exhibit C — Vista Property Legal Description
Exhibit D — Use Restrictions
Exhibit E — Drainage Easement
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives, to be effective as of the date first
above written.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Signature and Acknowledgment Pages Follow
-13-
Document Number 2017003586 Page 14 of 27
EASEMENT AND RESTRICTION AGREEMENT
(Vista Signature and Acknowledgment p. 1 of 2)
Vista:
Trustees of the Vista Hills Free Will
Baptist Church
Printed Name: By:
Tim Adair
Its: Pastor and Member of Board of
Directors
Printed Name:
Date:
Witnesses:
Printed Name:
Printed Name:
Witnesses:
Printed Name:
Printed Name:
By: C�L pv�U� .. .
Cahn Phillips
Its: Member of Board of Directors
Date: '4- 13 -- 1'7
By: P
>
Billy Clark'
Its: Member of Board of Directors
Date: Lq -- 13 — I
14 �LR.
Document Number 2017003586 Page 15 of 27
EASEMENT AND RESTRICTION AGREEMENT
(Vista Signature and Acknowledgment p. 2 of 2)
STATE OF k-�_
SS
COUNTY OF QM` Art )
2017, before me,
On his the day of
(Aw the undersigned officer, personally
appeared Tim Addir, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument and acknowledged that he executed the
same for the purposes therein contained.
In �IQ h I I hereunto set my hand and official seal. sswrefof (
NotaryyPdblic PP @ RICKY DICKENS
CRAWFORD COUNTY
Printed Name: Ck 4 F NOTARY PUBUO - ARKANSAS
My Commission Expires July 11, 2021
Commission .12383249
My Commission Expires:
12
Notary Public
STATE OF
SS
COUNTY OF
1 '2 44,25 / --in this the "D day of , 1 1 2017, before me,
I J� &%S the undersigned
I�L k- , it, 7 - ned officer, personally
appeared J6hn Phillips, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument and acknowledged that she executed the
same for the purposes therein contained.
In with s whereof I' ere nto set my hand and official seal.
... .... ...
Notary Public
JLA
Printed Name: ken,
CRAWFORD COUNTY
My Commission Expires:OMT,
NOTARY PuCLIC -ARKANSAS
MY Commission E�,pf,,, July 11 2WJ
sLo
-7 It I-zczl
,
ZMEREM4.
15 'A )E Pr
Document Number 2017003586 Page 16 of 27
STATE OF 1W
COUNTY 0 SS
On this the day of C(' i
kJ 2017, before me,
(L�4 401e-kev)-� the undersigned officer, personally
appear Billy Clark, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument and acknowledged that he executed the
same for the purposes therein contained.
In witne$s hereof I hereunto set my hand and official seal.
X
Notary Public
Printed Name:
KENS
CRAWFORO COUNTY
NOTARY PUBLIC- ARKANSAS
My Commission Expires: My Commission EXPI'asJuly 11 102,
- - C7 lit My Commission j
Notary Public
16
F-1 C
Document Number 2017003586 Page 17 of 27
EASEMENT AND RESTRICTION AGREEMENT
(Aldi Signature and Acknowledgment Page)
Witnesses:
Printed Name: Era L-Lgj
Printed Name: f&'iT
E, am
Aldi Inc. (Kanas),
a Kansas corporation
By: - 7461---
G. Mark Bersted, Vice President
Date: h Y//?
On this the day of A-rvi-I 1 2017, before me,
the t kundersigned officer, personally appeared
e
d,--Wa--rk Bersted, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument and acknowledged that he executed the same for the
purposes therein contained.
In witness whereof I hereunto set my hand and official seal.
Notary Public
Printed Name: OKIT' nff-
My Commission Ex ire
N1 1 051 Iq
17
Document Number 2017003586 Page 18 of 27
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[See Attached]
18
1-41-11 -
Document Number 2017003586 Page 19 of 27
The "Vista Property' is Tracts 1 and 3 of the above plat.
The "Aldi Property" is Tract 2.
The "Church Parcel" is Tract 3.
19
Document Number 2017003586 Page 20 of 27
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Document Number 2017003586 Page 21 of 27
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Document Number 2017003586 Page 22 of 27
EXHIBIT B
Aldi ftgu",v Legal Ugagriglign
Tract 2, Block 1 of that certain final plat called "Aldi's Addition" a Replat of a Plat of
Survey Filed in Plat Record L at Page 72 to the City of Van Buren, Arkansas, filed for
record on April 11, 2017 with the Crawford County Circuit Clerk as Plat 2017-8.
Document Number 2017003586 Page 23 of 27
EXHIBIT C
Vista Property Legal Description
Tract 1 and 3, Block 1 of that certain final plat called "Aldi's Addition" a Replat of a Plat
of Survey Filed in Plat Record L at Page 72 to the City of Van Buren, Arkansas, filed for
record on April 11, 2017 with the Crawford County Circuit Clerk as Plat 2017-8.
23 -k- (,)
Document Number 2017003586 Page 24 of 27
EXHIBIT D
Use Restrictions
Vista hereby covenants and agrees that it will not lease, rent, sell, or otherwise
permit to be owned, controlled, leased, used, or occupied any portion of the Vista
Property for any of the uses set forth below:
(a) a Retail Grocery Store; "Retail Grocery Store" shall mean a supermarket, meat
market, grocery store, fruit and vegetable store or stand, frozen or otherwise processed
food store, and any store where more than 50 grocery items are sold for off -premises
consumption. "Retail Grocery Store" shall not include a delicatessen or any restaurant
wherein prepared food is sold for on -premises consumption or for "take-out"
consumption;
(b) a use or operation that is generally considered to be an environmental risk to any
portion of the Properties or surrounding properties;
(c) a business selling alcoholic beverages for on -premises consumption except for a
restaurant with sit down table service as its primary operation in which the sale of
alcoholic beverages does not exceed 50% of its gross sales;
(d) a laundry or dry cleaning establishment, provided, the foregoing restriction shall
not include an establishment for dry cleaning drop-off and pick-up only, with no cleaning
services being performed at the subject property;
(e) any establishment which stocks, displays, sells, rents, or offers for sale or rent
any merchandise or material commonly used or intended for the use with or in
consumption of any narcotic, dangerous drug, or other controlled substance (provided
that the foregoing is not intended and shall not be construed to prohibit a drug store);
(f) adult book store, an establishment selling or exhibiting pornographic materials or
any form of adult entertainment, or an operation whose principal use is an exotic
dancing and/or massage parlor (provided this restriction shall not prohibit massages in
connection with a beauty salon, health club or athletic facility, or a national massage
chain such as Massage Envy);
(g) a pool or billiard hall, arcade, night club, dance club, movie theater or cinema,
gyms or health clubs greater than 5,000 square feet, schools or learning centers having
more than thirty students at any one time, skating rink, or bowling alley;
(h) any business or use that would negatively impact Aldi's access to parking
spaces;
(i) children's play or party center, telemarking, poling and surveying center, or office
use; however the foregoing shall be permitted providing there is sufficient parking to
maintain a ratio of 6 spaces per 1,000 sq. ft. of g.l.a;
24
Document Number 2017003586 Page 25 of 27
0) an abortion clinic; Planned Parenthood;
(k) a pet store, except that a national pet store (i.e. a Petsmart or Petco) shall be
permitted providing the location of such use is located no less than 250' from the Aldi
Property;
(1) a gasoline station or an auto repair shop;
(m) a lot for the sale of used automobiles;
(n) a mobile home park, trailer court (except that this provision shall not prohibit the
temporary use of construction trailers during any periods of construction, reconstruction
or maintenance), mobile home sales lot, living quarters, hotel or apartment building;
(o) off-track betting establishment, bingo parlor, or any gambling use;
(p) a business which would emit or produce noxious fumes, gases, excessive dust,
dirt, or loud noises;
(q) an assembly, manufacturing, distilling, refining, smelting, industrial, agricultural,
drilling, or mining operation;
(r) a junk yard, stock yard, animal raising operation, a dump or disposal, or any
operation for the incineration or reduction of garbage of refuse;
(s) a pawn shop, a thrift store, consignment shop or "re -sell" shop, a "Good Will" or
"Salvation Army" type store, flea market, or a store dedicated to the sale of tobacco
products;
(t) a mortuary or funeral home;
(u) banquet hall, auditorium, or meeting hall;
(v) no flashing neon signs may be placed in the window or on any buildings greater
than 24 inches X 24 inches or on any poles located in the Vista property;
(w) the outdoor display, sale, or storage of seasonal merchandise (Christmas trees,
pumpkins, produce, flowers, etc.) and/or the permanent, temporary, or periodic outdoor
display, sale, or storage of merchandise (art work, novelties, clothing, etc.); and/or
(x) carnival, amusement park, or circus.
Document Number 2017003586 Page 26 of 27
EXHIBIT E
The "Proposed Drainage Easement" shall mean the 100' Storm Drainage Easement
shown on the attached plat.
[See Attached]
26
Document Number 2017003586 Page 27 of 27
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CERTIFICATE OF RECORD
STATE OF ARKANSAS, COUNTY OF CRAWFORD
I hereby certify that this instrument was
Filed and Recorded in the Official Records
Doc Num 2017003586
04/18/2017 12:32:42 PM
SHARON BLOUNT BAKER
CRAWFORD COUNTY CIRCUIT CLERK
BY: JENNIFER RIGGS