Fill and Sign the Reciprocal Easement Form

Return To: RECIPROCAL EASEMENT AGREEMENT THIS RECIPROCAL EASEMENT AGREEMENT (this "Agreement") is made and entered into as of the __ day of       ,       , between                         , a Georgia joint venture (hereinafter, together with its successors and assigns, referred to as "FIRST PARTY"), and                         , a Georgia limited partnership (hereinafter, together with its successors and assigns, referred to as "SECOND PARTY"). WITNESSETH : WHEREAS, FIRST PARTY owns fee simple title to a tract of land containing       acres and located in Land Lot of the        District,        Section,        County, Georgia and known as        ,       , Georgia        by the current system of numbering for the City of             , which property is described on Exhibit A attached hereto and incorporated herein by this reference (the "FIRST PARTY Property"); WHEREAS, simultaneous herewith, FIRST PARTY has sold to SECOND PARTY an adjacent tract of land containing       acres and also located in Land Lot       of the       District,       Section,       County, Georgia, and known as       ,       , Georgia       by the current system of numbering for the City of             , which property is described on Exhibit B attached hereto and hereby incorporated herein by this reference (the "SECOND PARTY Property"); WHEREAS, the FIRST PARTY Property and the SECOND PARTY Property are being developed in contemplation of sharing interior driveways, sanitary sewer, water, and surface water storm drainage and related facilities; and WHEREAS, FIRST PARTY and SECOND PARTY wish to enter into certain easements for shared driveways, sanitary sewer, water, and surface water drainage and related facilities; NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, FIRST PARTY and SECOND PARTY hereby grant to each other, for the benefit of the FIRST PARTY Property and the SECOND PARTY Property, its successors and assigns, the following easements: 1. Shared Driveway Easement . FIRST PARTY and SECOND PARTY hereby grant to each other and their respective successors and assigns and the tenants of the FIRST PARTY Property and the SECOND PARTY Property to benefit and burden the FIRST PARTY Property and the SECOND PARTY Property, a perpetual, non- 1 exclusive easement (the "Ingress Egress Easement") over those portions of the FIRST PARTY Property and the SECOND PARTY Property which are hatched and identified as the "Ingress/Egress Easement" on Exhibit C attached hereto and incorporated herein by this reference, for purposes of constructing, installing, repairing, maintaining and replacing from time to time driveways, curbs, gutters and related facilities and for purposes of ingress, egress, passage and access by pedestrian or vehicular traffic, over, across and upon the Ingress/Egress Easement. No subsequent owner of the FIRST PARTY Property or the SECOND PARTY Property or any portion thereof shall construct, maintain or permit any improvement or condition on any portion of the Property that is the subject of the Ingress/Egress Easement which would impede pedestrian or vehicular traffic over, across or upon the Ingress/Egress Easement. 2. Sanitary Sewer Easement . FIRST PARTY and SECOND PARTY hereby grant to each other, to benefit and burden the FIRST PARTY Property and the SECOND PARTY Property, a perpetual, non-exclusive easement for twenty feet (20') in width (the "Sanitary Sewer Easement") over those portions of the FIRST PARTY Property and the SECOND PARTY Property which are shaded and identified as the "20' Sanitary Sewer Easement" on Exhibit D attached hereto and incorporated herein by this reference, for purposes of constructing, installing, tying into, repairing, maintaining and replacing from time to time and discharging sewage through an 8" sanitary sewer line which, in turn, will tie into the public sanitary sewer line located within the right-of-way of       . Notwithstanding anything to the contrary contained herein, (i) FIRST PARTY, SECOND PARTY, and any successor-in-title to FIRST PARTY or SECOND PARTY, may install or construct parking, driveways, curbing, landscaping and other paved or landscaped areas over, across or upon the Sanitary Sewer Easement, provided such installation or construction does not result in the material interruption or interference with sanitary sewer service to the FIRST PARTY Property or the SECOND PARTY Property. In addition to the easement herein established, FIRST PARTY grants and conveys to SECOND PARTY the right of SECOND PARTY to assign FIRST PARTY's interest in the Sanitary Sewer Easement to       County for dedication as a public line and the Sanitary Sewer Easement shall terminate upon such dedication: provided that if       County is willing to accept dedication of the Sanitary Sewer Easement, SECOND PARTY agrees that it will consent to such dedication. 3. Water Easement . FIRST PARTY and SECOND PARTY hereby grant to each other, to benefit and burden the FIRST PARTY Property and the SECOND PARTY Property, a perpetual, non-exclusive easement (the "Water Line Easement") over those portions of the FIRST PARTY Property and the SECOND PARTY Property which are shaded and identified as the "Water Line Easement" on Exhibit E attached hereto and incorporated herein by this reference, for purposes of constructing, installing, tying into, repairing, maintaining and replacing from time to time and for conveying water through an 8" water line which will, in turn, tie into the public water main located within the right-of-way of       . Notwithstanding anything to the contrary contained herein, FIRST PARTY, SECOND PARTY or any successor-in-title to FIRST PARTY or SECOND PARTY, may install or construct parking, driveways, curbing, landscaping and other paved or landscaped areas over, across or upon the Water Line Easement, provided 2 such installation or construction does not adversely affect water service to the FIRST PARTY Property or the SECOND PARTY Property. 4. Drainage Easements . FIRST PARTY and SECOND PARTY do hereby establish perpetual, non-exclusive drainage easements (the "Drainage Easement" or collectively, the "Drainage Easements") upon, across and through those portions of the FIRST PARTY Property and the SECOND PARTY Property in the approximate locations which are shaded and identified as "Drainage Easement" on Exhibit F attached hereto and incorporated herein by this reference, for purposes of constructing, installing, tying into, repairing, maintaining and replacing from time to time and discharging water through storm water drainage lines and related drainage facilities, together with the right to discharge stormwater through the northernmost Drainage Easement and into the detention pond to be constructed at the northwest corner of the SECOND PARTY Property (hereinafter referred to as the "Detention Pond"). Notwithstanding anything to the contrary contained herein, FIRST PARTY, SECOND PARTY, or any successor-in- title to FIRST PARTY or SECOND PARTY, may install or construct parking, driveways, curbing, landscaping and other paved or landscaped areas over, across or upon the Drainage Easements, provided such installation or construction does not result in the material interruption or interference with storm drainage discharge from either the FIRST PARTY Property or the SECOND PARTY Property. 5. Construction, Maintenance, Costs and Expenses . A. Construction . SECOND PARTY shall be responsible for the construction of the improvements and facilities comprising the Ingress/Egress Easement, the Sanitary Sewer Easement, the Water Line Easement, and the Drainage Easements (including the Detention Pond) (said Ingress/Egress Easement, Sanitary Sewer Easement, Water Line Easement, and Drainage Easements, including the Detention Pond, being hereinafter collectively referred to as the "Easements"). B. Maintenance Expenses . SECOND PARTY shall be obligated for the maintenance, repair or replacement of the Easements. FIRST PARTY shall have no right to perform such construction, maintenance, repair or replacement to the Easements unless and until SECOND PARTY fails to do so as provided below, and except that FIRST PARTY may perform any emergency repairs necessary to prevent damage or loss of service to its property or to prevent imminent injury to persons or property. The costs and expenses of the construction, maintenance, repair and replacement of the Easements shall be shared equally between FIRST PARTY and SECOND PARTY. The cost of maintaining, repairing or replacing the Easements shall be divided equally between FIRST PARTY and SECOND PARTY. 6. Relocation . Each party hereto shall have the right to relocate from time to time the Sanitary Sewer Easement, the Drainage Easements and the Detention Pond so long as such relocation will not result in any interruption of or interference with sanitary sewer or storm drainage service to the improvements to be constructed on the FIRST PARTY Property or the SECOND PARTY Property or otherwise materially or adversely affect the use of any portion of the FIRST PARTY Property or the SECOND PARTY Property. 3 7. Covenants Running With the Land . The rights, agreements, duties, obligations, and easements set forth in this Agreement shall run with the land, shall be binding upon and benefit the owners of the FIRST PARTY Property and the SECOND PARTY Property, and every portion thereof in perpetuity, and their successors, assigns and legal representatives. Any reference herein to SECOND PARTY, FIRST PARTY, the owner of the FIRST PARTY Property or the owner of the SECOND PARTY Property shall be construed to include the heirs, executors, administrators, successors, successors-in-title, representatives and assigns (either voluntarily by act of the parties or involuntarily by operation of law) of the same, and shall include the plural if there should be more than one or as the context may require. The owners of the FIRST PARTY Property and the SECOND PARTY Property from time to time shall only be liable hereunder for costs accruing during and with respect to the period of their respective ownership. Any transferee of any portion of the SECOND PARTY Property or the FIRST PARTY Property shall automatically be deemed, by acceptance of the title to said property, to have assumed all obligations of this Agreement relating thereto to the extent of its interest in said property and the transferor shall upon the completion of such transfer be relieved of all further liability under this Agreement. SECOND PARTY agrees that its recourse against FIRST PARTY and its successors and assigns under this Agreement shall be strictly limited to FIRST PARTY's and its successors' and assigns' interest in the FIRST PARTY Property, and that in no event shall SECOND PARTY seek or obtain any recovery or judgment against FIRST PARTY's or its successors' and assigns' other assets (if any) or against any of FIRST PARTY's or its successors' or assigns' members, managers, partners or affiliates (or their constituent members, managers, partners or affiliates) or their assets or any director, officer, employee or shareholder of any of the foregoing. FIRST PARTY agrees that its recourse against SECOND PARTY and its successors and assigns under this Agreement shall be strictly limited to SECOND PARTY' and its successors' and assigns' interest in the SECOND PARTY Property, and that in no event shall FIRST PARTY seek or obtain any recovery or judgment against SECOND PARTY or its successors' and assigns' other assets (if any) or against any of SECOND PARTY' or its successors' or assigns' members, managers, partners or affiliates (or their constituent members, managers, partners or affiliates) or their assets or any director, officer, employee or shareholder of any of the foregoing. 8. Modifications . This Agreement may be amended only by a written instrument executed by: (i) SECOND PARTY or any subsequent owner of all or any portion of the SECOND PARTY Property, and (ii) FIRST PARTY or any subsequent owner of all or any portion of the FIRST PARTY Property. 9. Notices . Any notice sent pursuant to this Agreement shall be in writing and sent by (i) depositing it with the United States Postal Service or any official successor thereto, certified or registered mail, return receipt requested, with adequate postage prepaid, addressed to the appropriate party or (ii) by nationally recognized overnight delivery service. Each notice shall be effective (i) two (2) business days after being so deposited (in the case of certified or registered mail), but the time period in which a response to any notice must be given or any action taken with respect thereto 4 shall commence to run from the date of receipt of the notice by the addressed thereof as evidenced by the return receipt or (ii) one (1) business day after depositing such notice with the nationally recognized overnight delivery service. Rejection or other refusal by the addressed to accept or the inability of the United States Postal Service to deliver because of a changed address of which no notice was given shall be deemed to be the receipt of the notice sent. In the event that registered or certified mail service is not being provided by the United States Postal Service or any of its successors thereto at the time in questions, each notice may then be served by personal service or sent by regular mail and shall be deemed effective upon receipt. The initial addresses of the parties shall be as set forth below: To FIRST PARTY:                                                       Attention: General Counsel with copies:                                                       Attention:             and                                                       Attention:             , Esq. To SECOND PARTY:                                                       Attn: General Counsel Notices may also be given by personal delivery or by reputable courier, in which case the notice shall be deemed effective upon delivery. Inability to deliver because of an incorrect address provided by a party hereto or because of refusal or rejection by the party to which is being sent shall be deemed delivered. 10. Governing Law . The laws of the State of Georgia shall govern this Agreement. Any provisions of this Agreement which shall prove to be invalid, void or illegal, shall in no way affect, impair or invalidate any other provisions hereof. 11. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be an original, but such counterparts together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed under seal as of the day and year above first written. 5 Signed, sealed and delivered in the presence of: FIRST PARTY                                                 , Unofficial Witness a Georgia joint venture By:                         _________________________ Notary Public My Commission Expires:                               By:                         , a             corporation (f/k/a             ), its asset manager and advisor hereunto duly authorized [Notarial Seal] By: _____________________ Name:                         Title:                         [CORPORATE SEAL] Signed, sealed and delivered in the presence of: BY:                         : a Georgia limited partnership _________________________ Unofficial Witness By:                               , a Georgia corporation, sole general partner _________________________ Notary Public My Commission Expires:                                     By: _______________________ Name:                         Title:                   _________________________ [CORPORATE SEAL] 6 CONSENT OF MORTGAGEE The undersigned, being the holder of that certain Deed to Secure Debt and Security Agreement from                   , dated as of                   ,             , recorded in Deed Book             , page       ,       County, Georgia records, which security deed encumbers the             , hereby consents to the execution of this Reciprocal Easement Agreement. Executed this ____ day of                   , by its duly-authorized representative. Signed, sealed and delivered in the presence of:                         ____________________ By:                         its sole general partner Unofficial Witness Name:                         Title:                   ____________________ Notary Public My Commission Expires:                               [Corporate Seal] 7