Fill and Sign the Ms Easement 497315607 Form

Reciprocal Easement and Operation Agreement AGREEMENT, made as of this the       , day of       20 , between       (“       ”), whose mailing address is       and             (“       ”), whose mailing address is             . Preliminary Statement       is the owner in fee of certain real property located in the             more particularly described in Exhibit "A" annexed hereto (the “       Parcel”).       has constructed and developed       Parcel for             permitted hereunder.       Parcel is shown and designated on the site plan attached hereto as Exhibit “B” (the “Site Plan”).       is the owner in fee of certain real property (the “       Parcel”), located contiguous to       Parcel, The       Parcel is more particularly described in Exhibit “ C” annexed hereto.       intends to construe and develop on the       Parcel a       in the areas indicated on the Site Plan attached as Exhibit “D”.       Parcel and the       Parcel herein collectively referred to as the “Parcels”, and each individually as a “Parcel”.       and       recognize that for the most favorable development of the Parcels, it is necessary that they agree and cooperate with respect to the operation and maintenance of their parcels and curb cuts, roadways, driveways, aisles, walkways and sidewalks to be erected hereon (the "Common Areas").       and       therefore intend herein to grant to each other certain reciprocal servitudes and easements for pedestrian and vehicular ingress and egress over the Common areas for access and for delivery and to grant certain rights to instate and maintain utility lines and site facilities within the Common Areas.       and       also intend herein to provide for certain obligations arid restrictions with respect to the operation and maintenance of their respective Parcels and the Common Areas and facilities constructed and to be constructed thereon. Such servitudes, easements, obligations and restrictions shall run to the benefit of, and bind the respective Parcels, and the owners from time to time of the Parcels or any portion thereof. The terms       or       shall be deemed to refer to such parties and the respective heirs, successors, grantees and assigns of such parties, and any net Lessee of any Parcel or part thereof who has assumed all of the obligations of the owning party (individually the “owner,” or collectively, the “Owners”). NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,       and       hereby grant, covenant and agree as follows: Article I-Grant of Easements Section - 1.01 Access Easements. The Owners of the       Parcel and       Parcel hereby grant and convey, each to the other, for the benefit of the       Parcel and       Parcel, a non-exclusive servitude, easement and right to the use during the term of this Agreement of the Common Areas and the common curb cuts, roadways, driveways, aisles, walkways and sidewalks as constructed which may be from time to time located, set aside or designated on the       Parcel and the       parcel for purposes on ingress, egress, passage and delivery (but not parking), by vehicles and pedestrians, Notwithstanding the foregoing, the driveways on the 1 Parcels shall not be materially modified or relocated without the prior written consent of the Owners of both parcels. The servitudes and easements granted hereby and granted in Section 1.02 shall be for the benefit of, but not restricted solely to, the Owners of the       Parcel and       Parcel and each Owner may grant the benefit of such servitudes and easements to the tenants and other occupants of the       Parcel and the       Parcel for the duration of such occupancy, and to the customers, employees, agents and business invitees thereof; but same is not intended nor shall it be construed as creating any rights in or for the benefit of the general public nor shall it affect any real property outside of the Parcels. Such servitude and easement areas are reserved for said use for the term of this Agreement. Section 1.02 Utility Easements. The Owners of the       Parcel and       parcel hereby grant and convey each to the other, for the benefit of the       Parcel and       Parcel a servitude and easement ten feet (10') in width over, under and across existing servitudes and easements on the       Parcel and       Parcel for the purpose of installation, operation, maintenance, repair, replacements, removal and relocation of underground storm sewer lines, sanitary sewer pipes, septic systems, water and gas mains, electric power lines, telephone lines, and other underground utility lines (“Utility Lines”) to serve the facilities looted on the       Parcel and       Parcel. The Owners of the       Parcel and       Parcel, or any party providing utilities to       Parcel and the       Parcel, may operate, maintain and repair (and, if it does not interfere with the use of the granting Owner's Parcel, relocate) such Utility Lines provided such repair and maintenance is performed expeditiously and only after five (5) business days' written notice (except in an emergency, in which event the work may be initiated with reasonable notice) to the granting Owner utilizing or serviced by said Utility Lines or the parking area to be affected by any construction work. The party performing the repair shall, at its cost and expense, repair any damage to any improvements. Each Owner shall indemnify and hold the granting Owner and any occupant of the granting Owner's Parcel harmless from any claims, damage or loss which may result from the activities in making such repairs or relocating its facilities. Section 1.03. Temporary Construction Servitude. In connection with any construction work to be performed in the development of the Parcels, each Owner hereby grants the other temporary servitudes and easements for incidental encroachments upon the party's Parcel which may occur as a result of construction, so long as such encroachments are kept within the reasonable requirements of construction work expeditiously pursued and so long as customary insurance is maintained protecting the other party from the risks involved. Section 1.04. Restrictions. The servitudes and easements granted by this Article I shall be subject to the covenants and restrictions set forth in Article III. Article II - Maintenance and Operation Section 2.01 Except as expressly provided below, each Owner shall maintain, repair and replace all improved portions of the Common Areas located on its respective parcel, so as to keep such areas at all times in a safe, sightly, good and functional condition to standards of comparable multi-family residential property. 2 Section 2.02 Each Owner shall be responsible for keeping the Common Areas on its own Parcel clean and free from refuse and rubbish. Section 2.03 Each Owner shall repave, re-stripe and replace markings on the surface of the parking areas and driveways on its Parcel from time to time as and when necessary so as to provide for the orderly parking of automobiles and shall place and maintain adequate exit and entrance and other traffic control signs to direct traffic in and out of said parking areas. Section 2.04 Each Owner shall service, maintain, repair and replace, and pay the cost of any fees or charges in connection with the Utility Lines located on its Parcel to the extent that such Utility Lines service the improvements on that Parcel or service any other Owner's Parcel as a whole if such services are not provided. To the extent that any Utility Line exclusively servicing any Parcel crosses another Owner's Parcel, such Utility Line shall be so maintained by the party served by the Utility Line, subject to the provisions of Section 1.02. Maintenance of any portion of any Utility lines serving more than one Parcel shall be performed by the Owner of the Parcel crossed by the Utility Line, but the cost thereof shall be shared on an equitable basis based upon the relative consumption or usage of the utility furnished from such Utility Line. Section 2.05 Each Owner shall pay, prior to any penalty attaching thereto, all real estate taxes, assessments and personal property taxes, if any, imposed upon the land and improvements and equipment located on its respective parcel. Section 2.06 Each Owner shall cause the Common Areas and all buildings and improvements located on its Parcel to comply with all applicable requirements of law and governmental regulations applicable thereto, provided however, that an Owner may contest any such law or regulation so long as such contest would not create any material danger of a loss of title to, or impairment in any way of the use of all or any portion of the Common Areas for their intended purposes. Article III - Covenants and Restrictions Section 3.01 Restrictions on Common Areas. The Parcels shall be subject to the following restrictions which shall be binding on each Owner and each of its tenants, occupants, employees agents or invitees: (a) No obstruction to the free flow of traffic and use of the parking and delivery facilities shall be permitted, except to the extent, if any, indicated on the Site Plan or herein expressly provided for. Security gates and fences shall be allowed hereunder. (b) Any construction shall be conducted in a manner which will limit to the maximum extent practicable any interference with the operation of the balance of the Parcels. Article IV - Liability Indemnification Section 4.01. Liability Indemnification. Each Owner shall indemnify and hold every other Owner, tenant, and occupant of the parcels harmless (except for loss or damage resulting from the tortious acts of such other parties) from and against any damages, liability actions, claims, and expenses (including attorneys' fees in a reasonable amount) in connection with the loss of life, personal injury and/or damage to property arising from or out of any 3 occurrence in or upon such Owner's Parcel, or occasioned wholly on in part by any act or omission of said Owner, its tenants, agents, contractors, employees, or licensees. Section 4.02. Liability Insurance. Each Owner shall maintain or cause to be maintained public liability insurance 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 the Common Areas in the Parcels by the Owner and its tenants, agents, contractors, employees, licensees, customers and invitees, of such       or the occupants of its Parcels except as herein provided. Said insurance shall be carried by a reputable insurance company or companies qualified to do business in the State of       and having limits for loss of life and bodily injury in the amounts of not less than $ 1,000,000 for each person and $3,400,000 for each occurrence and $500,000 for property damage for each occurrence. Each Owner shall maintain or cause to be maintained contractual liability insurance specifically endorsed to cover said Owner's agreement to indemnify as set out in Section 4,01, Such insurance may be carried under a "blanket" policy or policies covering other properties of the party and its subsidiaries, controlling or affiliated corporations. Each Owner shall, upon written request from the other Owner, furnish to the party making such request certificates of insurance evidencing the existence of the insurance required to be cared pursuant to this Section. Each party agrees to use its best efforts to cause all the insurance policies required to be carried hereunder to be issued with waivers of the insurers' subrogation rights against the other parties to the extent such rights have been waived by the insured prior to the occurrence of damage or loss . To the fullest extent permitted without invalidating such insurance coverage, each Owner hereby waives any rights of recovery against any other Owner, its directors, officers, employees, agents and tenants and occupants far any damage or consequential loss covered by said policies, against which such Owner is protected by insurance, to the extent of the proceeds payable under such policies, whether or not such damage or loss shall have been caused by any acts or omissions of the other Owner or its directors, officers, employees, agents, tenants or occupants. The Owners of the Parcels agree to review the minimum insurance coverage limits set forth herein on the fifth (5th) anniversary of the date hereof and each fifth (5th) anniversary of such date thereafter occurring during the term of this Agreement, and to adjust such insurance coverage limits if, in the Owners’ reasonable opinion, circumstances warrant an adjustment. Article V - Casualty and Eminent Domain Section 5.01 Casualty In the event any Common Area improvements now or hereafter located on any parcel are damaged or destroyed, the Owner of the Parcel to which such damage has occurred shall promptly cause the repair, restoration or rebuilding of the Common Area improvements to the extent necessary to restore the area outlined on the Site Plan to its previously improved condition and restore such other areas to the extent necessary to avoid interference with the remaining Common Areas of the Parcels and to adhere to any required parking ratios required by law and as set forth herein, Section 5.02 Expropriation. In the event the whole or any part of any Parcel shall be taken by right of expropriation or any similar authority of law (a “Taking”) the entire award for the value of the land and improvements so taken shall belong to the Owner of the property so taken or to such Owner's mortgagees or tenants, as their interest may appear, and no other Owner shall have a right to claim any portion of such award by virtue of any interest created by this Agreement. Any Owner of a Parcel which is not the subject of a taking may, however, file a collateral claim with the condemning authority over and above the value of the land 4 being so taken to the extent of any damage suffered by such Owner resulting from the severance of the land or improvements so taken if such claim shall not operate to reduce the award allocable to the Parcel taken. In the event of a partial Taking, the Owner of the portion of the Parcel so taken shall restore the improvements located on the Common Areas of the Owner's Parcel as nearly as possible to the condition existing prior to the Taking without contribution from any other Owner and any portion of any condemnation award necessary therefor shall be held in trust and applied for such purpose. Article VI - Remedies Section 6.01. Self Help: Lien Rights Disputes If any Owner shall default in the performance of an obligation of such Owner (such Owner being herein called a "Defaulting Owner"), which default affects the Owner of another Parcel or any occupant thereof (an "Affected Party"), such Affected Party, in addition to all other remedies it may have at law or in equity, after ten days' prior written notice to the Defaulting Owner and any first Mortgagee as herein defined (or in the event of are emergency after such notice as is practical under the circumstances), shall have the right to perform such obligation on behalf of the Defaulting Owner. In such event, the Defaulting Owner shall promptly reimburse the Affected Party the cost thereof, together with interest thereon from the date of outlay at a rate equal to the lesser of (i) two percent in excess of the prime lending rate charged by Citibank, N.A., for commercial loans of its most preferred commercial customers or (ii) the highest rate permitted by applicable law (the Interest Rate). Section 6.02. Injunctive and Other Remedies In the event of a breach by any Owner of any obligation of this Agreement, the other Owner shall be entitled to obtain an injunction specifically enforcing the performance of such obligation; the Owners hereby acknowledge the inadequacy of legal remedies and the irreparable harm which would be caused by any such breach, and/or to relief by other available legal and equitable remedies from the consequences of such breach. Any action taken or document executed in violation of this Agreement shall be void and may be set aside upon the petition of the other Owner of the Parcel. Any costs and expenses of any such proceeding, including attorneys' fees to a reasonable amount, shall be paid by Defaulting Owner and, if recorded, shall constitute a lien against the land, and improvements thereon, or the interests therein, until paid. Section 6.03. Non Waiver. No delay or omission of any Owner in the exercise of any right accruing upon any default of any other Owner shall impair such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by any Owner of a breach of, or a default in, any of the terms and conditions of this Agreement by any other Owner shall not be construed to be a waiver of any subsequent breach of or default in the same or any other provision of this Agreement. Except as otherwise specifically provided in this Agreement, (i) no remedy provided in this Agreement shall be exclusive but each shall be cumulative with all other remedies provided in this Agreement and (ii) all remedies at law or in equity shall be available. Section 6.04. Non Terminable Agreement No breach of the provisions of this Agreement shall entitle any Owner or party to cancel, rescind or otherwise terminate this Agreement, but such limitation shall not affect, in any manner, any other rights or remedies which any party may have hereunder by reason of any breach of the provisions of this Agreement. No breach of the provisions of this Agreement shall defeat or render invalid the 5 lien of any mortgage or deed of trust made in good faith for value covering any part of the Parcels, and any improvements thereon Section 6.05. Force Majeure. In the event any Owner or any other party shall be delayed or hindered in or prevented from the performance of any act required to be performed by such party by reason of Acts of God, strikes, lockouts, unavailability of materials, failure of power, prohibitive governmental laws or regulations, riots, insurrections, the act or failure to act of the other party, adverse weather conditions preventing the performance of work as certified to by an architect, war or other reason beyond such party's control, then the time for performance of such act shall be extended for a period equivalent to the period of such delay. Lack of adequate funds or financial inability to perform shall not be deemed to be a cause beyond the control of such party. Article VII - Term Section 7.01 This Agreement and the servitudes, easements, rights, obligations and liabilities created hereby shall be perpetual to the extent permitted by law. Article VIII - Effect of Instrument Section 8.01. Mortgage Subordination. Any mortgage or deed of trust affecting any portion of the Parcels shall at all times be subject and subordinate to the terms of this Agreement, except to the extent expressly otherwise provided herein, and any party foreclosing any such mortgage or deed of trust, or acquiring title by deed in lieu of foreclosure or trustee's sale shall acquire title subject to all of the terms and provisions of this Agreement. Each party hereto represents and warrants to the other parties that as of the date of this Agreement, there is no mortgage or deed of trust lien on its Parcel, other than mortgage or deed of trust lien that are expressly subordinate to the lien of this Agreement. Section 8.02. Binding Effect Every agreement, covenant, promise, undertaking, condition, servitude, easement, right, privilege, option and restriction made, granted or assumed, as the case may be, by either party to this Agreement is made by such party not only personally for the benefit of the other party hereto but also as Owner of a portion of the Parcels and shall constitute a servitude and easement on the portions of the Parcels; it being specifically understood and agreed, however, that nothing contained herein shall prohibit an Owner from subdividing its parcel into smaller tracts or parcels of land. Any transferee of any part of the Parcels shall automatically be deemed, by acceptance of the title to any portion of the Parcels, to have assumed all obligations of this Agreement relating thereto to the extent of its interest in its Parcel and to have agreed with the then Owner or Owners of all other portions of the Parcels to execute any and all instruments and to do any and all things reasonably required to carry out the intention of this Agreement and the transferor shall upon the completion of such transfer be relieved of all further liability under this Agreement except liability with respect to matters that may have arisen during its period of ownership of the portion of the Parcels so conveyed that remain unsatisfied. Section 8.03 Non-Dedication Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of the parcels to the general public or for any public use or purpose whatsoever, it being the intention of the parties hereto and their successors and assigns and that nothing in this Agreement, expressed or implied, shall confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement. 6 Section 8.04 Responsibility. Notwithstanding anything to the contrary contained in this instrument, each party to this Agreement shall be liable and responsible for the obligations, covenants, agreements and responsibilities created by this Agreement and for any judgment rendered hereon only to the extent of its respective interest in the land and the improvements on       Parcel and the       Parcel, as the case may be. Article IX - Notices Section 9.01 Any notice, report or demand required, permitted or desired to be given under this Agreement shall be in writing and shall be deemed to have been sufficiently given or served for all purposes if it is mailed by registered or certified mail, return receipt requested, as the respective parties may from time to time designate by like notice, on the third business day following the date of such mailing, If to       :                   If to       :                   or to such other address as the parties may from time to time designate by notice in writing to the other parties. Article X - Miscellaneous Section 10.01 (a) If any provision of this Agreement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or unenforceable, the remainder of this Agreement, or the application of such provision or portion thereof to any other persons or circumstances, shall not be affected thereby, it shall not be deemed that any such invalid provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (b) This Agreement shall be construed in accordance with the laws of the State of Mississippi. (c) The Article headings in this Agreement are for convience only, shall in no way define or limit the scope or content of this Agreement, and shall not be considered in any construction or interpretation of this Agreement or any part hereof. (d) Nothing in this Agreement shall be construed to make the parties hereto partners or joint venturers or render either of said parties liable for the debts or obligations of the other. (e) This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. (f) This Agreement may be amended, modified, or terminated at any time by a declaration in writing, executed and acknowledged by all the parties to the Agreement or their 7 successors or assigns; this Agreement shall not be otherwise amended, modified or terminated during the term hereof. 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. WITNESS             By:             _____________________ WITNESS             By:             STATE OF MISSISSIPPI COUNTY OF       PERSONALLY appeared before me, the undersigned authority in and for the said county and state, an this       , day of       ,       , within my jurisdiction, the within named       who acknowledged that he is             in said representative capacity he executed the above and foregoing instrument, after having first been duly authorized so to do.             Notary Public My Commission Expires:       STATE OF MISSISSIPPI COUNTY OF       PERSONALLY appeared before me, the undersigned authority in and for the said county and state, on this       day of       , 20       within my jurisdiction, the within named       who acknowledged that he             and that in said representative capacity he executed the above and foregoing instrument, after having first been duly authorized so to do.                         Notary Public My Commission Expires:       9