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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