Real Estate Declaration and Easement Agreement, Lecture notes of Law

Download Real Estate Declaration and Easement Agreement and more Lecture notes Law in PDF only on Docsity! 1 Space Above Reserved for Recorder's Use Only This document prepared by and after recording return to: Mahaffey Pickens Tucker, LLP 1550 North Brown Road, Suite 125 Lawrenceville, GA 30043 Attn: Austen T. Mabe DECLARATION OF EASEMENTS, COVENANTS, AND RESTRICTIONS THIS DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS (this “DECLARATION”) is made this _____ day of ____________, 2020 (the “Effective Date”), by [DECLARANT], a [STATE] [ENTITY] (the “Declarant”). W I T N E S S E T H WHEREAS, Declarant is the owner of all that certain parcel of land located in Jackson County, Georgia and being more particularly described on Exhibit “A”, attached hereto and incorporated herein by reference, and being known as [PROJECT NAME] (“PROJECT NAME”); WHEREAS, on [DATE], Declarant recorded a subdivision plat of the PROJECT NAME in Plat Book __, Page __, Jackson County, Georgia Records (the “Plat”); WHEREAS, the Plat subdivides the PROJECT NAME into [NUMBER] (NUMERAL) parcels as follows: (i) Tract No. 1 (__ acres) as shown and depicted as Tract No. 1 on the Plat (“Tract No. 1”); (ii) Tract No. 2 (__ acres) as shown and depicted as Tract No. 2 on the Plat (“Tract No. 2”); (iii) Tract No. 3 (__ acres) as shown and depicted as Tract No. 3 on the Plat (“Tract No. 3”); (iv) Tract No. 4 (__ acres) as shown and depicted as Tract No. 4 on the Plat (“Tract No. 4”); (v) Tract No. 5 (__ acres) as shown and depicted as Tract No. 5 on the Plat (“Tract No. 5”); and (vi) Tract No. 6 (__ acres) as shown and depicted as Tract No. 6 on the Plat (“Tract No. 6”) (Tract No. 1, Tract No. 2, Tract No. 3, Tract No. 4, Tract No. 5, and Tract No. 6 are individually referred to as a “Tract” and collectively referred to as “Tracts”); [REVISE ACCORDING TO NO. OF TRACTS] WHEREAS, in connection with [DECLARANT’S] subdivision of the PROJECT NAME, the Declarant desires to provide for the integrated use of the Tracts, to establish certain covenants and restrictions upon the PROJECT NAME and various portions thereof, and to establish certain rights and easements for the benefit of various portions of the PROJECT NAME. 2 NOW THEREFORE, the Declarant declares that the Tracts are and shall be held, used, transferred, mortgaged, leased, sold, conveyed, and occupied subject to the terms conditions, covenants, restrictions, rights, obligations, duties, and easements pursuant to the terms and conditions as set forth herein, and occupied subject to the terms and conditions contained in this Declaration. ARTICLE I DEFINITIONS In addition to any terms whose definitions are fixed and defined elsewhere in this Declaration, each of the following terms, when used herein with an initial capital letter, shall have the following meaning: 1.1 Building. “Building” or “Buildings” shall mean any building(s) and other vertical improvements constructed on the Tracts from time to time. 1.2 Common Areas. “Common Area” shall mean all areas, facilities, installations, and equipment within the bounds of the Tracts provided from time to time for the common use and benefit of the Owners of the Tracts, and their respective Permittees including, without limitation, the Driveway Facilities, Drainage Facilities, Detention Pond, and Utility Facilities, but expressly excluding therefrom (i) the area occupied by a Building and the loading docks and truck wells serving any Building, (ii) any utility facility solely one Tract, and (iii) the area surrounding a dwelling unit and established for the use and enjoyment of the occupant of such dwelling unit. 1.3 Improvements. “Improvements” shall mean any Building and related landscaping, storefront and freestanding signage, driveways and parking lots (including parking lot lighting) constructed on each Tract. 1.4 Laws. “Laws” shall mean laws, rules, regulations, orders, and ordinances of the city, county, state, and federal governments, or any department or agency thereof with appropriate jurisdiction over the Tracts. 1.5 Permittee. “Permittee” shall mean the officers, directors, employees, agents, tenants, subtenants, patrons, customers, visitors, guests, invitees, licensees and concessionaires of an Owner of a Tract. 1.6 Owner. “Owner” shall mean, as of any time, and individually or collectively, the owner(s) or ground lessee(s) of all or any portion of a Tract and the successors, assigns and successors-in-title of same. ARTICLE II INCORPORATION OF RECITALS; PROPERTY SUBJECT TO DECLARATION 2.1 Incorporation of Recitals. The recitals and definitions above are incorporated herein by this reference and shall form a substantive part of this Declaration. 5 3.9 Reimbursement for Common Expenses. For purposes of this Declaration, the term “Common Expenses” shall mean all fees and expenses incurred by the Owner of Tract No. ___ related to the Owner of Tract No. ___’s obligations under Sections 3.1, 3.2, 3.3, 3.4, 3.5, and 4.3 of this Declaration. Each Tract shall be responsible for reimbursing Common Expenses based on the following schedule: Tract No. 1 – ____%; Tract No. 2 – ____%; Tract No. 3 – ____%; Tract No. 4 – ____%; Tract No. 5 – ____%; and Tract No. 6 – ____%. ARTICLE IV MAINTENANCE AND REPAIR 4.1 General Standards for each Tract. Except as otherwise provided in this Declaration, each Owner shall operate, maintain (or cause its respective tenant(s) to maintain) the Improvements located on its own Tract at all times in a safe, clean, sightly, good and functional first-class condition and state of repair, and in compliance with all applicable Laws and the provisions of this Declaration. The operation, maintenance and repair obligations shall include but not be limited to the following: (i) General maintenance and repair of all Buildings, loading docks, lighting and paved surfaces, including all driveways, roadways, sidewalks and parking areas, and all curbing related thereto, in good order and repair and in a safe condition, patching, restriping, repairing, and resurfacing such paved or hardscaped areas when appropriate; (ii) Removing papers, debris, refuse, ice and snow to the extent necessary to keep the parking areas, driveways, access ways, and sidewalks in a first- class, clean, and orderly condition; (iii) Placing, keeping in repair, and replacing all signs on each Tract, including, without limitation, appropriate traffic directional signs and markers; and (iv) Maintaining, repairing and replacing, when necessary, all traffic directional signs, markers and lines, and all informational signs such as "Handicapped Parking"; (v) Maintaining, repairing, and replacing all landscaped areas (including bulb replacement and weeding), and promptly removing and replacing diseased or dead shrubs, trees and other landscaping as necessary, and keeping any grassed areas neatly mowed and all such areas in a sightly and attractive condition free of underbrush and overgrown vegetation. (vi) Maintaining, repairing and replacing, when necessary, all traffic directional signs, markers and lines, and all informational signs such as "Handicapped Parking"; (vii) Operating, maintaining, repairing and replacing, when necessary, artificial lighting facilities, including, but not limited to, poles, pole bases, wiring, lamps, ballasts, lenses, photocells, time clocks, and contactors. Maintaining and watering all landscaped areas (including, without limitation, those on the perimeter of the PROJECT NAME); maintaining, repairing and replacing, when necessary, automatic sprinkler systems and water lines; and replacing shrubs and other landscaping as is necessary; 6 (viii) Maintaining, repairing and replacing, when necessary, all retaining walls and fences; and (ix) Supervision of traffic at entrances and exits to if necessary as conditions reasonably require in order to maintain an orderly and proper traffic flow. 4.2 Expenses for Maintenance Obligations. The Improvements located on each Tract shall be maintained by the Owner of that Tract, at such Owner’s sole cost and expense. Nothing contained in this Declaration shall be deemed to relieve any Owner’s tenant from such tenant’s obligations under any lease with an Owner. 4.3 Common Areas. The Owner of Tract No. ___ shall maintain the Common Areas at all times in a safe, clean, sightly, good and functional first-class condition and state of repair, and in compliance with all applicable Laws and the provisions of this Declaration at the Owner of Tract No. ___’s sole cost and expense, subject to reimbursement pursuant to Section 3.9 of this Declaration. The Common Areas shall be operated, maintained, and repaired pursuant to the same standards as set forth in Section 4.1 of this Declaration. 4.4 Damage to Buildings. Notwithstanding anything to the contrary contained in this Agreement, once constructed, in the event of any damage to or destruction of a Building on any Tract, the Owner of such Tract shall, with due diligence, either: (a) repair, restore, and rebuild such Building to its condition prior to such damage or destruction (or with such changes as shall not conflict with this Declaration), or (b) tear down and remove all portions of such damaged or destroyed Building then remaining, including the debris resulting therefrom, and otherwise clean and restore the area affected by such casualty to a level, graded condition. ARTICLE V INSURANCE 5.1 The Owners of the Tracts (collectively, the “Insurance Parties”) shall maintain or cause to be maintained in full force and effect commercial general liability insurance with a financially responsible insurance company or companies licensed to do business in the State of Georgia insuring against claims on account of loss of life, bodily injury, or property damage that may arise from, or be occasioned by the condition, use or occupancy of its respective Tract or the improvements located thereon; such insurance to provide for a limit of not less than One Million Dollars ($1,000,000.00) for each occurrence and Two Million Dollars ($2,000,000.00) aggregate for bodily injury and property damage combined, plus "umbrella" coverage of at least an additional Five Million Dollars ($5,000,000.00) of liability insurance. Such insurance shall extend to the contractual obligation of the insured party arising out of the indemnification obligations set forth in this Declaration. Upon request, each party shall furnish to the other evidence that the insurance required to be carried by this Section 5.1 is in full force and effect. ARTICLE VI SHARED EXPENSES 6.1 All sums due hereunder (including any sums that may be due under Section 7.1, below) shall constitute a lien against the Tracts, as applicable. Such lien shall attach and take effect only upon recordation of a claim of lien in the Gwinnett County, Georgia Real Estate Records. The lien so claimed shall attach from the date of recordation solely in the amount claimed thereby and may be enforced in any judicial proceedings allowed by law, including 7 without limitation, a suit in the nature of a suit to foreclose a mortgage/deed of trust or mechanic’s lien under the applicable provisions of the law of Georgia. The claim of lien shall include the following: (i) the name of the lien claimant; (ii) a statement concerning the basis for the claim of lien; (iii) an identification of the Owner of the Tract or interest therein against which the lien is claimed; (iv) a description of the Tract, as applicable; (v); and a statement that the lien is claimed pursuant to the provisions of this Declaration, reciting the date and document number of recordation hereof. The notice of lien claim shall be duly verified, acknowledged and contain a certificate that a copy thereof has been served upon the owner of the applicable Tract, by (a) personal service, (b) nationally recognized overnight delivery service, or (c) certified mail, return receipt requested. Notwithstanding anything in the above section, any lien rights shall be and are subordinate to any lien created by mortgage, deed of trust or deed to secure debt encumbering any Tract. ARTICLE VII DEFAULT 7.1 Default. (a) If any Owner fails to comply with any provision herein (the “Defaulting Owner”), then following delivery of the written notices discussed below the non-defaulting Owner (“Non-Defaulting Owner”) at its option and in addition to any other remedies it may have at law or equity may proceed to perform such defaulted obligation on behalf of Defaulting Owner (and shall have a license to do so) by the payment of money or other action for the account of Defaulting Owner. Before exercising any remedy, the Non-Defaulting Owner shall first notify the Defaulting Owner in writing at least thirty (30) days in advance. The foregoing right of the Non-Defaulting Owner to cure shall not be exercised if within the notice period (i) Defaulting Owner cures the default, or (ii) if the default is a non-monetary default and cannot be reasonably cured within that time period, but Defaulting Owner begins to cure such default within such time period and diligently pursues such action to completion. The thirty (30) day notice period shall not be required if an emergency exists that poses an immediate threat to life or property or if such default causes interference with the construction, operation or use of all or any portion of the applicable Tract which requires immediate attention; and in such event, the Non-Defaulting Owner shall give whatever notice to Defaulting Owner as is reasonable under the circumstances. (b) Within ten (10) days of written demand therefor (including providing copies of invoices reflecting costs) Defaulting Owner shall reimburse the Non-Defaulting Owner for any sum actually and reasonably expended by Non-Defaulting Owner due to the default or in correcting the same, and, if such reimbursement is not paid within said thirty (30) days, together with Interest thereon, and if collection is required, Non-Defaulting Owner’s reasonable attorneys’ fees and costs of collection. 7.2 Remedies Cumulative. Any remedies provided for in Section 7.1 are cumulative and shall be deemed additional to any and all other remedies to which any party may be entitled in law or in equity and shall include the right to restrain by injunction any violation or threatened violation by any party of any of the terms, covenants, or conditions of this Declaration and by decree to compel performance of any such terms, covenants, or conditions, it being agreed that the remedy at law for any breach of any such term, covenant, or condition is not adequate. 10 all instruments and do any and all things reasonably required to carry out the intention of the provisions hereof. The transferor of any such part of the Tract shall, upon the completion of such transfer, be relieved of all further liability hereunder except for such liability as may have arisen during the transferor's period of ownership of such part of the Tract so conveyed and which remains unsatisfied. Any reference to an Owner of any Tract in this Declaration shall include such party’s successors in title and assigns. 9.15 Notices. Any notice required or permitted to be delivered hereunder shall be in writing, signed by the party giving such notice or its attorney at law and shall be deemed to be delivered, whether or not actually received, (a) when the same has been deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the party to whom such notice is sent, (b) when deposited for overnight delivery with a nationally recognized express mail carrier service such as FedEx, UPS or DHL, or (c) when personally delivered by commercial courier service or other messenger. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES APPEAR ON FOLLOWING PAGE] IN WITNESS WHEREOF, the party below has caused its duly authorized representative to execute this Declaration under seal to be effective as of the date first set forth above. Signed, sealed and delivered in the presence of: ___________________________ Unofficial Witness ___________________________ Notary Public My Commission Expires: [Notarial Seal or Stamp] DECLARANT: [DECLARANT], a [STATE] [ENTITY] By: _______________________________ Name: _____________________________ Its: ________________________________