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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.
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.
maintenance, repair and replacement of the Sanitary Sewer Facilities, subject to reimbursement as set forth in Section ___ below.
3.5 Water Easement for the Tracts. Declarant hereby establishes, gives, grants, dedicates, declares, and conveys to the Owners of the Tracts, and their respective Permittees, a perpetual non-exclusive easement to connect into and use the Water Facilities located within the Villages Shoppes at Creekside for the flow and passage of domestic water through the Water Facilities to serve the Tracts. For purposes hereof, the term “Water Facilities” includes the water lines and related facilities, as the same are depicted on the Plat. The Owner of Tract No. ___ be responsible for construction, maintenance, repair and replacement of the Water Facilities.
3.6 Additional Utility Facilities. In addition to the easements benefitting and burdening the Tracts as set forth in Section 3.1, 3.2, 3.3, 3.4, and 3.5 of this Declaration, Declarant hereby establishes, gives, grants, dedicates, declares, and conveys to the Owners of the Tracts, and their respective Permittees, a perpetual non-exclusive easement over, under, and across those parts of the Common Areas of the PROJECT NAME for the installation, use, maintenance, repair and replacement of water mains, water sprinkler system lines, telephone or electrical conduit or systems, gas mains and other utility facilities necessary for the operation of the Tracts (individually, an “Additional Utility Facility” and collectively, the “Additional Utility Facilities”); provided, that (i) the rights granted pursuant to such easements shall be exercised in such a manner as to not materially interfere with the existing normal operation of the Tracts; (ii) the exact location of any additional or relocated utilities shall be subject to the prior written consent of the Owner of the burdened Tract(s), which approval shall not be unreasonably conditioned, withheld, or delayed; and (iii) except in emergency, the right of the Owner of a Tract and their respective Permittees to enter upon a separate Tract for the exercise of any rights pursuant to such easements shall be conditioned upon providing reasonable advance written notice to the Owner of the burdened Tract. All such systems, structures, mains, conduits, lines, and other utilities shall be installed and maintained below the ground level or surface of the Tracts (except for such parts thereof that cannot be and are not intended to be placed below the surface, such as transformers and control panels, which shall be placed in such locations as approved by the Owner of the burdened Tract). No building or similar structure shall be placed above any utility facility described in Sections 3.1, 3.2, 3.3, 3.4, and 3.5 of this Declaration. The cost of installing, maintaining, repairing, and replacing the Additional Utility Facilities shall be at the sole expense of the Owner of the Tract benefitting from such Additional Utility Facilities.
3.7 General Easement; Duty to Cooperate. The rights and easements granted in this Declaration are hereinafter collectively referred to as the “Easements”, and the areas encumbered by the Easements are hereinafter referred to as the “Easement Areas”. The Easements include the right of ingress and egress over, across and upon the applicable Tract for purposes incidental and necessary to the exercise of the Easements, including the rights, privileges, and obligations created herein; provided that each Owner of a Tract benefitted by an Easement shall use reasonable care so as not to interfere with the business operations conducted on a Tract burdened by an Easement. The Owners of the Tracts shall have a duty to cooperate with each other to facilitate proper access, drainage, and utility services to and from the Tracts.
3.8 Cross-Parking. The Owner of each Tract and its respective Permittees shall be prohibited from parking in the parking spaces located on the other Tracts.
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. 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;
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.
ARTICLE VIII
TERM
This Declaration and each term, covenant, restriction and undertaking of this Declaration, except as otherwise provided herein, shall run with and bind the Tracts and remain in effect perpetually. Section 4.1 of this Declaration shall continue in full force and effect until 11: P.M. Jackson County, Georgia local time on the twentieth (20th) anniversary of the Effective Date of this Declaration; provided, however, the applicable term shall be automatically renewed for three (3) separate and successive periods of twenty (20) years each or the longest period permitted by applicable Law, unless all Owners agree to terminate Section 4.1 and file, not later than ninety (90) days prior to the expiration of the then current term or renewal term, a notice to such effect in the Gwinnett County, Georgia Real Estate Records.
ARTICLE IX MISCELLANEOUS
9.1 Interest. Wherever in this Declaration it is provided that any party is to pay to any other party a sum of money with “ Interest ,” the amount of interest to be paid shall be calculated upon the sum advanced or due from the time advanced or due until the time paid at the lesser of:
(a) The highest rate permitted by law to be paid on such type of obligation; or
(b) The per annum rate equal to two percentage (2%) points in excess of the "prime rate" of interest from time to time publicly announced by Wells Fargo, N.A. or its successors or assigns.
9.2 Estoppel Certificates. Upon written request from time to time by any Owner, each other Owner shall issue to such requesting party an estoppel certificate stating:
(a) Whether the party to whom the request has been directed has given any notice to the requesting party of any default by such requesting party under this Declaration which remains uncured, and if there are such defaults of which notice has been given and which remain uncured, specifying the nature thereof;
(b) Whether to such party's knowledge this Declaration has been supplemented, modified or amended in any way (and if it has, then stating the nature thereof); and
(c) That to such party's knowledge this Declaration as of that date is in full force and effect.
9.3 Singular and Plural. Whenever required by the context of this Declaration, the singular shall include the plural, and vice versa, and the masculine shall include the feminine and neuter genders, and vice versa.
9.4 Negation of Partnership. None of the terms or provisions of this Declaration shall be deemed to create a partnership between the Owners in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise.
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.
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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: ________________________________
