Legal Set-Back Agreement

LEGAL SET-BACK AGREEMENT

This Legal Set-Back Agreement (the Agreement) is made and entered into as of the Effective Date: Day Month Year , by and between Owner: whose address is , and Grantee: whose address is .

RECITALS

WHEREAS, Owner is the fee simple owner of certain real property located at or commonly known as: (the Property); and

WHEREAS, Owner and Grantee desire to establish and fix a set-back area on the Property for the purpose of restricting certain improvements and uses within that area in order to preserve sight-lines, access, drainage, utilities, public safety, or other municipal or private requirements; and

WHEREAS, Owner agrees to grant, and Grantee agrees to accept, such rights and restrictions as set forth herein in consideration of the covenants and agreements contained in this Agreement.

NOW, THEREFORE

In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and Grantee agree as follows:

1. DEFINITIONS

For purposes of this Agreement, the following terms shall have the meanings set forth below:

"Setback Area" means the portion of the Property described as follows:

"Property" means the real property described above and any appurtenant easements and rights.

2. GRANT OF SETBACK

Owner hereby grants to Grantee, its successors and assigns, a non-exclusive covenant, servitude and restriction upon the Setback Area, binding upon Owner and Owner's successors and assigns, that no buildings or permanent structures shall be constructed, installed, or maintained within the Setback Area except as expressly permitted in writing by Grantee pursuant to this Agreement.

3. PERMITTED AND PROHIBITED USES

3.1 Permitted Uses. The following uses are permitted within the Setback Area so long as they do not interfere with the purpose of the setback: landscaping, surface drainage improvements, underground utilities, and temporary construction staging that does not involve permanent alteration of grade or structures.

3.2 Prohibited Uses. No permanent buildings, dwelling units, roofed structures, storage of hazardous materials, or any improvement that alters the established grade or impedes drainage shall be placed within the Setback Area without the prior written consent of Grantee. Any permitted improvements shall be installed in a manner that does not reduce the effective setback width described below.

4. SETBACK WIDTH AND LOCATION

The setback described in this Agreement shall be measured horizontally from the property line or other baseline as described in the Setback Area description. Where a conflict exists between distances shown on any diagram and measured field distances, the physical field measurement shall control unless otherwise agreed in writing by the Parties.

5. MAINTENANCE; ACCESS

5.1 Maintenance. Owner shall maintain the Setback Area in a safe and clean condition and shall not permit nuisances or hazards to exist therein. Routine landscaping and erosion control consistent with the purpose of the setback are the responsibility of Owner.

5.2 Right of Access. Grantee, its agents, contractors and authorized representatives shall have a right to enter the Setback Area upon prior notice to Owner, except in cases of emergency, to inspect compliance with this Agreement, perform necessary maintenance of permitted utilities, or remove unauthorized improvements. Such access shall be exercised reasonably and with minimal disruption to Owner.

6. COMPLIANCE WITH LAWS; PERMITS

Each Party shall comply with all applicable federal, state and local laws, ordinances, regulations, and permits relating to the Setback Area. Before undertaking any permitted improvement, the applicable Party shall obtain any required governmental approvals and shall provide evidence of such approvals to the other Party upon request.

7. TERM; TERMINATION

This Agreement shall commence on the Effective Date and shall continue in perpetuity unless terminated by mutual written agreement of the Parties. Notwithstanding the foregoing, either Party may terminate this Agreement with respect to the entire Property or a portion thereof only by written instrument recorded in the appropriate real property records and signed by both Parties.

8. ASSIGNMENT

The rights and obligations of a Party under this Agreement may be assigned to a successor in interest to that Party's interest in the Property, provided that the assigning Party remains liable for performance until such time as the assignee expressly assumes the assigning Party's obligations in writing.

9. INDEMNITY AND LIMITATION OF LIABILITY

9.1 Indemnity. Each Party shall indemnify, defend and hold harmless the other Party and its officers, directors, agents and employees from and against any claims, losses, liabilities, damages and expenses (including reasonable attorneys' fees) to the extent caused by the indemnifying Party's negligence or willful misconduct in connection with its activities in the Setback Area.

9.2 Limitation. Except for gross negligence or willful misconduct, neither Party shall be liable to the other for incidental, consequential or punitive damages arising out of this Agreement.

10. INSURANCE

Each Party shall maintain commercial general liability insurance in amounts customary for similar properties and operations and shall provide certificates of insurance upon reasonable request. Insurance coverage shall name the other Party as an additional insured where operations under this Agreement create third-party liability exposure.

11. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants that (a) it has full power and authority to enter into and perform this Agreement, (b) this Agreement constitutes a legal, valid and binding obligation enforceable against such Party in accordance with its terms, and (c) execution and performance will not violate any other agreement or applicable law.

12. NOTICES

All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, sent by nationally recognized overnight courier, or deposited in the United States mail, postage prepaid and certified or registered, to the addresses set forth below or to such other address as a Party shall designate by notice in accordance with this section.

13. REMEDIES

In addition to any other remedies available at law or equity, Grantee shall be entitled to injunctive relief to prevent actual or threatened violations of this Agreement and to compel compliance with its terms. The prevailing Party in any enforcement action shall be entitled to recover reasonable attorneys' fees and costs.

14. AMENDMENT; WAIVER

No amendment, modification or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by both Parties. No waiver of any breach shall constitute a waiver of any other or subsequent breach.

15. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the state in which the Property is located, without regard to that state's conflict of laws principles.

16. ENTIRE AGREEMENT

This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings, whether written or oral, concerning such subject matter.

17. SEVERABILITY

If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect and shall be interpreted so as to carry out the intent of the Parties to the greatest extent permitted by law.

18. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Signatures transmitted by facsimile or electronic image shall be binding.

19. ADDITIONAL PROVISIONS

Owner shall promptly remove any unauthorized improvement placed within the Setback Area at Owner's expense upon written demand by Grantee. Costs of enforcement, including reasonable attorneys' fees, shall be chargeable to the non-complying Party as provided in this Agreement.

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