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Plat:
Declaration of Easements, Covenants
and Restrictions
THIS DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS
(the “Declaration”), made and entered into as of this
30th day of March 1998, by and between FC-GP, a Virginia
general partnership (the “Owner”), and A/H PORT CROSSING
ASSOCIATES, L.L.C., a Virginia limited liability company
(the “Buyer”). FC-GP and A/H Port Crossing Associates,
L.L.C. shall each be deemed to be a GRANTOR and GRANTEE
for indexing purposes.
WITNESSETH:
WHEREAS, Owner entered into a contract dated February
1, 1998 with Buyer (the “Contract”) pursuant to which
Owner agreed to sell, and Buyer agreed to purchase, that
certain real property (the “Property”) consisting of Lots
E, F and H as shown on that certain subdivision plat dated
March 25, 1998, and entitled “Port Republic Road Business
Park” prepared by Benner and Associates which plat is
to be recorded in the Clerk’s Office of the Circuit Court
of Rockingham County, Virginia contemporaneously with
this Declaration (the “Plat”). The plat is attached hereto
as Exhibit “A” and incorporated herein by reference; and
WHEREAS, the Owner owns other land in the Port Republic
Road Business Park designated as Lots A, B, C, D, G and
I as shown on the Plat (which lots are referred to collectively
as “Owner’s Parcel”); and
WHEREAS, the Contract required that the Buyer construct
two access roads (the road from Port Republic Road is
referred to as “Port Republic Access Road” and the road
from Peach Grove Avenue is referred to as “Peach Grove
Access Road” and collectively are referred to as “Roads”)
to certain parcels and that the parties enter into an
agreement to maintain the Roads.
NOW, THEREFORE, the parties
agree as follows:
1. Owner hereby grants to Buyer, its successors
and assigns, and each tenant, occupant, employee, agent,
contractor, customer, visitor, invitee, licensee,
Subtenant or concessionaire (collectively the “Permitees”)
of such Buyer the perpetual, non-exclusive right, privilege
and easement in a fifty foot wide strip of land through
which the Port Republic Access Road will be constructed
and a thirty-six foot wide strip of land through which
the Peach Grove Access Road will be constructed with both
roads ending at the boundary lien of Lot H as generally
shown on Exhibit A.
2. Buyer agrees to construct the Port Republic
Access Road and the Peach Grove Access Road at its sole
costs and expense. Buyer agrees to cause the Port Republic
Access Road to have entrances, mutually acceptable to
Buyer and Owner, off of it onto Lot C and Lot D. The Access
Roads shall be constructed in accordance with the site
plan required under paragraph 3 hereof to permit public
access to the boundary lines of Lot H as generally shown
on Exhibit A as reasonably necessary for Buyer’s intended
development of the Lot H.
3. Buyer agrees to cause a site plan, which shall
include exterior lighting and landscaping, to be developed
for Lots E, F and H, at its sole cost and expense, and
deliver a copy of it to Owner. Buyer and Owner acknowledge
that separate site plans may be developed for each of
said Lots based upon the development of such Lots. Owner
shall review the building plans, exterior lighting and
landscaping on such site plan within fifteen (15) days
after delivery by Buyer to Owner to ensure that the site
plan, as it relates to building plans, exterior lighting
and landscaping, is consistent with the orderly development
of Owner’s Property. Owner acknowledges that it has reviewed
a preliminary site plan for Lot H and that such site plan
is generally consistent with such orderly development.
Owner shall be deemed to have consented, which consent
shall not be unreasonably withheld, to such site plan
unless it notifies Buyer of any objections within said
fifteen (15) day period. Any changes mutually agreed to
by Owner and Buyer shall be made and the site plan shall
be submitted to the appropriate City of Harrisonburg,
VA, government authorities for preliminary comment. Any
subsequent changes to the site plan dealing with building
plans, exterior lighting or landscaping shall be subject
to the consent by Owner, which consent shall not be unreasonably
withheld, within ten (10) days of delivery of the proposed
changes (it shall not be necessary for Buyer to revise
the site plan until Owner has given its consent, which
consent shall not be unreasonably withheld).
4. Buyer shall be responsible for the maintenance
of the Port Republic Access Road, at its sole costs and
expense, until the first development of Lots C, D, G or
I. The owner of Lots C, D, G and I shall be responsible
for the pro rata share of maintaining the Port Republic
Access Road after such Lot C, Lot D, Lot G or Lot I is
developed; provided, however, Lot I shall be included
only if it has given notice to the other Lot owners of
its desire to have access thru Lot G or H to the Roads.
Any expense to provide access to Lot I shall be at the
sole cost and expense of the owner of Lot I. For purposes
of this paragraph, “pro rata” shall be determined by multiplying
the maintenance expense by a faction the numerator of
which is the number of parking spaces shown on the site
plans for the individual Lots C, D, G, H and I (if applicable)
and the denominator of which is the aggregate number of
parking spaces shown on a site plan for Lots c, D, G,
H and I (if applicable). A Lot shall be deemed developed
when any improvement is made to such Lot, or portion thereof,
so that the owner thereof is then able to use such Lot
for any income producing endeavor. Whenever a majority
by number of parking spaces for Lots C, D, G, H and I
(if applicable) (such determination to be made only by
the owners of Lots that have been developed and are thus
responsible for their pro rata share of the cost of maintenance
and repair) determine that a maintenance and repair expense
is required to be incurred (such majority referred to
as “Maintenance Majority”), the Maintenance Majority shall
give written notice to the other Lot owners of their pro
rata share of the costs of such repairs. The Maintenance
Majority is hereby authorized to incur such repair and
maintenance expense and each Lot owner agrees to pay their
pro rata share of such costs within ten days after written
demand directly to the contractor with whom the Maintenance
Majority contracts to do the work.
5. Buyer shall be responsible for the maintenance
of the Peach Grove Access Road, at its sole costs and
expense, until the first development of Lot G. The owners
of Lot G and H shall be responsible for the pro rata share
of maintaining the Peach Grove Access Road after such
Lot G is developed. For purposes of this paragraph, “pro
rata” shall be determined by multiplying the maintenance
expense by a fraction the numerator of which is the number
of parking spaces shown on the site plans for the individual
Lots G or H and the denominator of which is the aggregate
number of parking spaces shown on a site plan for Lots
G and H. A Lot shall be deemed developed when any improvement
is made to such Lot, or portion thereof, so that the owner
thereof is then able to use such Lot for any income producing
endeavor. Whenever a majority by parking spaces of Lots
G and H (such determination to be made only by the owners
of Lots that have been developed and are thus responsible
for their pro rata share of the cost of maintenance and
repair) determine that a maintenance and repair expense
is required to be incurred (such majority referred to
as “Maintenance Majority”), the Maintenance Majority shall
give written notice to the other Lot owners of their pro
rata share of the costs of such repairs. The Maintenance
Majority is hereby authorized to incur such repair and
maintenance expense and each Lot owner agrees to pay their
pro rata share of such costs within ten days after written
demand directly to the contractor with whom the Maintenance
Majority contracts to do the work.
6. In any proceeding or lawsuit relating to this
Declaration, the defaulting party shall pay all costs
and expenses, including reasonable attorney’s fees, incurred
by the non-defaulting party. The tribunal or court hearing
such proceeding shall have the right to affix and apportion
such costs and expenses among the parties. Except as otherwise
provided herein, any right, power and remedy provided
in this Declaration, at law or in equity, by statute or
otherwise, shall be cumulative and concurrent and shall
be in addition to every other such right, power, or remedy
existing by agreement or law or otherwise.
7. A. Owner hereby grants to the Buyer, its successors
and assigns, tenants, occupants, employees agents, contractors,
customers, visitors, invitees, licensees, subtenants or
concessionaires a perpetual non-exclusive easement for
parking on and access over, across and through, Owner’s
remaining Lots A, B, C, D, G and I (if applicable) for
the purpose of providing access for the passage of motor
vehicles and pedestrian traffic. B. Owner hereby grants
to the Buyer, its successors and assigns, tenants, occupants,
employees agents, contractors, customers, visitors, invitees,
licensees, subtenants or concessionaires a non-exclusive
easement for utilities and drainage on, over, under, across,
beneath and through Owner’s remaining Lots A, B, C, D,
G and I (if applicable) as long as such easement does
not materially adversely affect the development of such
lot. C. Owner hereby covenants to the Buyer, its successors
and assigns, (1) that it will not permit any building
on parcels A, B, C or D to be constructed to a height
greater than (25) feet and (2) that it will not permit
a supermarket or grocery store selling fresh seafood,
meat, poultry or produce for off-premises consumption
to operate on Owner’s Lots A, B, C, D and G. The provisions
of this paragraph C.(2) shall not restrict the use of
such Lots A, B, C, D and G by a convenience store, mini-market
or similar business that do not sell fresh seafood, meat,
poultry or produce for off premises consumption.
8. A. Buyer hereby grants to the Owner, its successors
and assigns, tenants, occupants, employees agents, contractors,
customers, visitors, invitees, licensees, subtenants or
concessionaires a non-exclusive easement for parking on
and access over, across and through Buyer’s Lots E, F
and H for the purpose of providing access for the passage
of motor vehicles and pedestrian traffic.
B. Buyer hereby grants to the Owner, its successors
and assigns, tenants, occupants, employees agents, contractors,
customers, visitors, invitees, licensees, subtenants or
concessionaires a non-exclusive easement for utilities
and drainage on, over, under, across and through Buyer’s
Lots E, F and H, as long as such easement does not materially
adversely affect the development of such Lot.
9. The covenants set forth in paragraphs 2, 3,
4, 5 and 8 above shall be appurtenant to and shall run
with the land as between the Property as the servient
tenement and the Owner’s Parcel as the dominant tenement,
and the covenant set forth in paragraphs 1, 4, 5 and 7
above shall be appurtenant to and shall run with the land
as between the Owner’s Parcel as the servient tenement
and the Property as the dominant tenement. The aforesaid
obligations shall be binding upon and inure to the benefit
of the successors and assigns of the Owner’s Parcel and
the Property and any person claiming by, through or under
any of them and their respective successors and assigns.
The aforesaid obligations shall be construed as covenants
and not as conditions, and any violation of any said covenants
shall not result in a forfeiture or reversion of title
or any easement granted hereby.
10. The Buyer, or its assigns, will keep books
and records reflecting the costs of maintenance and repair
of the Roads and shall deliver to the Owner, or its successors
and assigns, a statement of costs incurred during the
period covered by such statement for the maintenance and
repair if the Roads. For a period of (90) days, following
its receipt of the statement described above, the Owner
or its agent or accounting firm shall have the right to
inspect such books and records upon reasonable notice
to the Buyer and the Buyer shall make such books and records
available to the Owner. If Owner or its successors and
assigns have not made payments required under paragraphs
4 or 5 such statement shall include the amount owed by
Owner, its successors and assigns, and such amount shall
bear interest at the rate of eight percent (8%) per annum
from the date such payment was required under paragraphs
4 or 5, as applicable until paid. Within such 90-day period,
the Owner shall set forth any objection it may have to
the form or content of the semi-annual statement or to
the reasonableness of any item or items set forth therein.
If the Owner and the Buyer are not able to resolve by
agreement the objections asserted by the Owner, any dispute
shall be resolved pursuant to the rules and procedures
of the American Arbitration Association.
11. No fences, barriers, or other obstructions
shall be erected or maintained in the Roads which would
impede pedestrian or vehicular traffic from or to the
Owner’s Parcel and/or the Property and from Port Republic
Road and Peach Grove Avenue. The Buyer and the Owner shall
not have the right to relocate or alter the Roads without
prior written consent of the other party, which shall
not be unreasonably withheld.
12. A. This Declaration and the respective covenants,
provisions, terms, conditions and agreements herein contained
shall be binding upon the parties hereto, their heirs,
executors, administrators, successors, legal representatives
and assigns and shall apply to any parcels subdivided
from Lots described herein.
B. This Declaration constitutes the entire agreement
among the parties hereto and supersedes any prior agreements,
whether written or oral, among the parties hereto with
respect to the subject matter hereof.
C. This Declaration shall be construed , performed
and enforced in accordance with the laws of the Commonwealth
of Virginia.
D. This Declaration may not be modified or amended
except by written instrument executed by the parties hereto.
E. If any term or provision of this Declaration
or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the
remainder of this Declaration, or the application of such
term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each such term and
provision of this Declaration shall be valid and be enforced
to the fullest extent permitted by law.
F. If the context in which the words are used in
the Declaration indicates that such is the intent, words
of the singular number shall include the plural and vice
versa, and words of the masculine gender shall include
the feminine and neuter genders and vice versa.
G. Paragraph headings used in this Declaration
are solely for the convenience of the parties hereto,
and shall not in any manner limit or construe the substantive
terms of any paragraph.
H. This Declaration shall not be construed as if
it had been prepared by one of the parties, but rather
as if both parties had prepared the same.
I. Nothing contained herein is intended to create,
nor shall the Access Easement herby granted be deemed
as creating any rights in and for the benefit of the general
public in all or any portion of the Owner’s Parcel and/or
the Property.
To the best of our knowledge this is true
and accurate. You should verify all information
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