Fill and Sign the Easement Private Form

Declaration of Easement for Common Private Drive Among Several Landowners and Agreement as to its Maintenance This declaration is made ___________________________________ (date) , by the _________________________________________________________ (the Association) , an u nincorporated association, located at ______________________________________________ ____________________________________________________ (street address, city, county, state, zip code) and consisting of the record title owners of five parcels of property abutting a certain right-of-way described on the attached Exhibit A. Whereas, the five parcels abut the private drive within the right-of-way described in Exhibit A, the easement premises , each of which is described on Exhibit A, attached. Parcels One through Five are collectively referred to as the Parcels ; and Whereas, the owners of the Parcels have easement rights over, across, and through the easement premises for utility connections and adequate access to their individual parcels; and Whereas, it is essential to the value of the Parcels that the private drive located within the easement premises, known as ________________________________ Drive , be properly maintained, in good condition; and Whereas, the owners of the Parcels ___________________________________________ _____________________________________________________________________________ _ _______________________________________, the Parcel Owners have agreed to share in the cost of maintaining _____________________________________ Drive according to a formula set forth in Section Three , below; and Whereas, as of the date of this Agreement, the Parcel Owners and their addresses are as follows: Parcel One: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ (Name of Owner, Street Address, City, County, State, Zip Code); Parcel Two: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ (Name of Owner, Street Address, City, County, State, Zip Code); Parcel Three: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ (Name of Owner, Street Address, City, County, State, Zip Code); Parcel Four: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ (Name of Owner, Street Address, City, County, State, Zip Code); Parcel Five: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ (Name of Owner, Street Address, City, County, State, Zip Code); Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: I. Easement A. A perpetual easement, easement , has been established across, over, and through the easement premises for the purpose of ingress to and egress from Parcels One through Five, inclusive, and for the construction, maintenance and repair (including reconstruction) of utilities. B. The easement burdens the easement premises, and benefits and runs with Parcels One through Five, inclusive. C. The easement also benefits any utility company or municipality providing utility services to one or more of the Parcels. II. Repair, Maintenance and Capital Improvements of Easements A. The easement premises are used as a drive for vehicular traffic and shall be properly maintained in good condition for this purpose. B. When repairs and/or maintenance appear to be necessary, the Association may undertake such repairs or maintenance anywhere along the easement premises upon the affirmative vote of _____________________________________ (e.g., at least two-thirds) of the Parcel Owners. The total cost of the particular maintenance or repair items being undertaken and the Parcel Owner or other person assigned or contracted with to perform them must also be approved by __________________________________________ (e.g., at least two-thirds) of the Parcel Owners. The parcel owners shall share in the costs of any approved maintenance, repair, or capital improvement according to the formula set forth in Section Three , below. C. Capital improvements (such as asphalting) to the easement premises may be undertaken by the Association on the affirmative vote of ________________________________ ______________________________________________________ (e.g., all the parcel owners) . Capital improvements may also be undertaken on the affirmative vote of ___________________ __________________________________________________________ ( fewer than all, but not less than two-thirds) of the Parcel Owners , but no Parcel Owner shall be responsible for the cost of any capital improvements to the easement premises not approved by that Parcel Owner . The Parcel Owners electing to carry out the improvements may apportion the cost in the same proportions as their respective percentages set forth below bear to the percentages of the other participating Parcel Owners. The exact nature of the capital improvements, their cost, and any contractor employed to carry them out must be approved by all the Parcel Owners undertaking the improvements. D. The Parcel Owners grant to one another reasonable rights of access and passage over their respective parcels for the purpose of conducting maintenance and repair of the easement premises or installing capital improvements. E. The Association, or any Parcel Owner designated to act on behalf of the Association, in undertaking the approved maintenance, repair, or capital improvement, will contract for and initially pay on behalf of the Association all reasonable costs associated with them, but will be entitled to reimbursement by each of the other Parcel Owners in their respective percentages set forth below. The Parcel Owner actually incurring such costs will promptly bill the others for their share. The others will pay the statement rendered within ________________________________________________ (e.g., 10 days) of receipt. No Parcel Owner will be entitled to reimbursement for the cost of any repair or maintenance undertaken without the prior approval of the Association. F. Provided a Parcel Owner is current in his or her obligations to the Association and/or other Parcel Owners, a Parcel Owner will be immediately released from all personal liability for costs associated with the repair and maintenance of or capital improvements to the easement premises upon the sale or other conveyance of 100 percent of his or her interests in the Parcel owned by him or her. G. If a Parcel Owner fails to pay his or her respective share of costs incurred within ___________________________________________ (e.g., 30 days) after receipt of a statement, the amount of the statement, together with interest at ______% per annum from the date the costs were incurred, plus any attorney fees necessary to collection, shall automatically become a continuing lien against the parcel of the defaulting Parcel Owner. This lien will be superior to all other liens or claims against the Parcel except an institutional or purchase money first mortgage. Each Parcel Owner's obligation to pay his or her share of the costs will be an enforceable personal obligation of the Parcel Owner . On the affirmative vote of all Parcel Owners except a defaulting Parcel Owner who has not paid his or her share of costs, the Association or Parcel Owners who have not been reimbursed may record notice of a claim of lien against the Parcel owned by the defaulting Parcel Owner and thereafter pursue a judicial action to foreclose on the lien, subject only to any institutional or purchase money first mortgage, in any manner now or in the future permitted by law or equity with respect to mortgages. Proceeds received at such a sale shall be distributed first to pay the lien being foreclosed upon, plus all costs and expenses, interest, and attorneys' fees, and any surplus shall be distributed in accordance with the priorities established by applicable law. The reimbursed Association or Parcel Owners may, in addition to or instead of foreclosure, obtain a personal judgment against the defaulting Parcel Owner. H. The Parcel Owners shall work together to coordinate their repair and maintenance activities so as to make the repairs and maintenance of the easement as economical as possible and to minimize interference with the Parcel Owners' use of the easement premises. To the extent reasonably possible or on the request of the Association, a Parcel Owner performing any repairs, maintenance or capital improvements will obtain competitive bids for the purpose of cost comparison. The Parcel Owners will be provided with reasonable notice before the undertaking of any repair, maintenance or capital improvement. All work will be performed with reasonable dispatch. I. The Parcel Owners will exercise reasonable care in their use of the easement premises so as not to cause more than normal wear and tear on the drive or other easement improvements. Any damage to the easement premises caused by a Parcel Owner or his or her guests or invitees shall promptly be repaired by that Parcel Owner at his or her sole expense. If Parcel Owner fails to repair any damage to the easement premises caused by him or her or his or her guests or invitees within _____________________ (e.g., ten) days of receipt of written request from the Association, the Association or another Parcel Owner may do so, and the cost of doing so will be the sole responsibility of the Parcel Owner responsible for the damage, to be billed, paid and collected as set forth above. III. Cost-Sharing Formula The formula to apportion the costs for repair, maintenance, and capital improvements to the easement premises is as follows: A. ______ percent of the entire cost is a base (fixed) cost that will be shared equally by ___________________________________________________ (Parcels One through Five), inclusive. B. The remaining _____ percent of the entire cost is a variable cost dependent on the length of the road as it is utilized by each Parcel Owner and shall be shared as follows: (specify) . IV. Subdivision If any of the Parcels is subdivided, the share of costs for repairs, maintenance, and capital improvements attributable to the Parcel being subdivided shall be allocated among the new Parcels created based on the ratio their respective areas bear to the total area of the Parcel from which they were created. The Parcel Owner of each separate Parcel created by the subdivision will be entitled to one vote per Parcel, however, no Parcel Owner will be entitled to more than one vote through subdivision of an existing Parcel. V. Assignment of Rights All rights granted in this Agreement shall not be further assignable by the Parcel Owners except as an appurtenance to and in conjunction with the sale or subdivision of their Parcels . VI. Amendment The provisions of this Agreement may be amended, but only with the consent of _________________________________________________ (e.g., three-quarters) of the Parcel Owners of all the property described in Exhibit A. VII. Binding Agreement The easement rights and responsibilities set forth in this Agreement shall be perpetual and shall run with the land, and shall be binding on the successors and assigns of the Parcel Owners. VIII. Voting If a Parcel is owned by more than one person, all the owners of a Parcel will collectively be referred to as the Parcel Owner, and will be entitled to only one collective vote, i.e., each Parcel represents one vote in the matters covered by this Agreement. IX. Mandatory Arbitration Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. WITNESS our signatures as of the day and date first above stated. ________________________________________________________ (ASSOCIATION) By: ___________________________________ ____________________________________ (Name and Office in Association) Owner of Parcel One _______________________________________ ____________________________________ Owner of Parcel Two Owner of Parcel Three _______________________________________ ____________________________________ Owner of Parcel Four Owner of Parcel Five