EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT is made this 11th day of December, 1998, by Xxxxxx-Xxxxxx
Canton, L.L.C. ("Seller"), a Georgia limited liability company, and Cherokee
Organizing Group, Inc. d/b/a Cherokee Bank, N.A. ("Purchaser") The parties
agree as follows:
ARTICLE ONE
PROPERTY TO BE SOLD
1.1 The Property. Subject to the following terms and conditions, Seller
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shall sell to Purchaser, and Purchaser shall buy from Seller, all that tract or
parcel of land more particularly described on the attached EXHIBIT A together
with any improvements located on it and all the appurtenances, rights,
easements, and rights-of-way incident to it (collectively, the "Property").
1.2 Restrictive Covenants and Cross Easements. All construction on the
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Property and the development, use, and maintenance of the Property shall be in
accordance with a Riverstone Development Declaration of Restrictive Covenants
(the "Declaration"), a draft of which is attached as EXHIBIT B. Seller reserves
the right to make changes in the draft Declaration before Closing and will
submit the final Declaration to Purchaser for its approval (which approval will
not be unreasonably withheld). At or before Closing, Seller will grant and
reserve cross easements for access, parking, drainage, and utilities benefiting
and burdening the Property and the two lots immediately adjoining the Property
to the West and North. At Closing, Seller will also grant Purchaser a temporary
access easement over the road to be constructed immediately East and adjacent to
the Property until such time as such road is completed and dedicated to public
use. Seller will be responsible for any expense relating to the preparation of
such easements. The form and content of such easements shall be subject to
Purchaser's reasonable approval.
1.3 Temporary Use. Seller permits (through this contract, or Restrictive
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Covenants if necessary) the placement of a modular banking office on the
Property while the permanent building is under construction. But in no case
shall the modular office remain on the Property past July 1, 2000.
ARTICLE TWO
PURCHASE PRICE
2.1 Purchase Price. Purchaser shall pay Seller $450,000.00 (the "Purchase
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Price") for the Property.
2.2 Cash Portion. Purchaser shall pay the Purchase Price in cash at
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Closing or by certified check or wire transfer to Seller's account, which cash
amount due at Closing shall be reduced by the Xxxxxxx Money paid and any closing
adjustments and prorations that are in its favor.
ARTICLE THREE
XXXXXXX MONEY
Within 5 days of the Effective Date, Purchaser shall deliver to the Escrow
Agent $10,000.00 (the "Xxxxxxx Money"), which the Escrow Agent will hold in
trust pending the Closing. At Closing, the Xxxxxxx Money shall be applied
towards payment of the Purchase Price. The Xxxxxxx Money shall be non-
refundable unless this Agreement is terminated or fails to close due to Seller's
breach. The Escrow Agent shall be Xxxx X. Xxxxx, Xx.
ARTICLE FOUR
SELLER'S REPRESENTATIONS,
WARRANTIES, AND COVENANTS
To induce Purchaser to enter into this Agreement and purchase the Property,
Seller makes the following representations, warranties, and covenants, each of
which is material to this Agreement and is relied upon by Purchaser:
4.1 Authority to Sell. Seller has the right, power, and authority to enter
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into this Agreement and to sell the Property to Purchaser, and Seller has not
granted any options or entered into any contracts with others for the sale of
all or any part of the Property.
4.2 Title. Seller is the sole owner of good, fee simple, marketable, and
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insurable title to all of the Property (or will be prior to Closing), subject
only to real estate taxes not yet due and payable, easements, rights-of-way, and
the final Declaration (collectively, the "Permitted Encumbrances").
4.3 Liens. At Closing, the Property will be free and clear of all liens.
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4.4 Operating Agreements. There are no operating or maintenance
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agreements for the Property.
4.5 Litigation. No litigation or administrative proceedings are pending
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or threatened with respect to the Property.
4.6 Leases. There are no leases for any part of the Property.
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4.7 Condition of Closing. On the date of Closing, unless Seller otherwise
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notifies Purchaser in writing, all representations and warranties made by Seller
in this Agreement shall be true and accurate, and such accuracy shall be an
express condition to Purchaser's obligation to close.
4.8 Utilities. Seller warrants that water, sanitary sewer and storm sewer
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are available at the site's property line. Seller warrants that the storm
detention access is in place.
4.9 Rough Grading. Seller warrants that compaction will be appropriate
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for construction of a two-story building for stated use. The cost of any
compaction tests will be borne by Purchaser.
4.10 Site Improvements. (a) After approval of the preliminary site plan
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(pursuant to section 5.2), Seller will apply to the Georgia D.O.T. for a
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permit for a curb cut for a driveway to be located at the southwest corner of
the Property (the Driveway). If Seller has not obtained such permit by the date
of Closing, Purchaser may terminate this Contract and receive the return of the
Xxxxxxx Money. If this transaction closes, Purchaser shall be responsible for
making the curb cut and constructing the Driveway in accordance with the plans
approved by Seller pursuant to section 5.3, which plans shall include a separate
cost for making the curb cut and constructing the Driveway, which cost must be
reasonably acceptable to Seller. If the curb cut and Driveway are partially
located on the property adjacent to the Property. Seller will deposit at Closing
with the Escrow Agent one-half of the approved cost of the Driveway and curb cut
(which deposit may be made with proceeds from the sale of the Property), which
deposit Escrow Agent shall hold until receipt of written notice from Seller that
Seller has sold the property that is immediately adjacent to the Property on the
West. Seller shall provide Escrow Agent with such notice within seven (7) days
of the date that the sale of such adjacent property closes. Upon receipt of that
notice, Escrow Agent shall promptly release the amount held in escrow to
Purchaser. (b) At its sole cost, Seller shall be responsible for constructing a
paved two-lane access road adjacent to the eastern boundary of the Property and
extending 50 feet beyond the northern boundary of the Property and obtaining a
curb cut permit for such road or corridor. When Seller constructs access road,
Seller shall install curb and gutter per Exhibit A to allow for a curb cut on to
the access road at the northeast corner of the Property. Seller shall begin such
construction within thirty (30) days of Closing and will use reasonable efforts
to complete such construction by September 1, 1999.
4.11 Underground Storage Tanks. To the best of Seller's knowledge and
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belief, there are no underground storage tanks on the Property.
ARTICLE FIVE
PURCHASER'S REPRESENTATIONS,
WARRANTIES, AND COVENANTS
To induce Seller to enter into this Agreement and to sell the Property to
it, Purchaser makes the following representations, warranties, and covenants,
each of which is material to this Agreement and is relied upon by Seller:
5.1 Bank Charter Approval and Use. Purchaser shall proceed immediately to
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obtain the approval of the location for a two-story bank main office on the
Property by the office of the Comptroller of the Currency. Purchaser shall have
4 months from the Effective Date within which to obtain such approval. If
approval has not been granted by the end of that period, then either party shall
have the right to terminate this Agreement. The Property will initially be
developed and used as a two-story bank main office of Purchaser. If the
Agreement is terminated, neither party shall have any further liability to the
other, except for those obligations which specifically survive the termination
of this Agreement.
5.2 Plan Approvals. Purchaser shall proceed immediately with the
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preparation of a preliminary site plan showing curb cuts and building location
on the site for Seller's use in obtaining D.O.T. approval of curb cuts, as well
as, a silhouette elevation of the two-story bank building for Seller's use in
review of site lines. The above plans must be delivered to Seller within thirty
(30) days of the execution of this Agreement.
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5.3 Purchaser shall proceed with preparation of Purchaser's site plan,
exterior architectural plan, and signage plan, and any other plans needed to
construct the two-story bank main office and develop the Property in accordance
with this Agreement, all of which plans are subject to the requirements of the
Declaration. Purchaser shall submit all such plans to Seller for its approval
within 45 days of the Closing. If Seller has not notified Purchaser in writing
within 30 days from the date on which plans are submitted that the plans are
approved or disapproved, then they shall be deemed approved.
5.4 The Purchaser shall locate the building structures on the Property to
optimize the visibility into the adjacent property to the rear and the Carmike
Cinema property, which location shall be subject to Seller's approval.
5.5 If Seller does not approve the plan and elevation submitted under
section 5.2 or the building location as submitted under section 5.4, Seller
shall notify Purchaser of its disapproval and the reasons for it and request
that Purchaser make suggested changes. If Purchaser is unwilling to make such
changes and if Seller and Purchaser cannot otherwise reach agreement with
respect to such plan, elevation, and building location, either party shall have
the right to terminate this Agreement by notifying the other in writing, and, if
either party does so, the Xxxxxxx Money shall be promptly returned to Purchaser,
and neither party shall have any further liability to the other except for those
obligations that specifically survive the termination of this Agreement.
ARTICLE SIX
DUE DILIGENCE
6.1 Title Examination. Within 30 days of the date of this Agreement,
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Purchaser shall examine the title to the Property and give Seller written notice
of any title objections disclosed by the examination. If Purchaser fails to
give such notice by the end of the 30-day examination period with respect to any
title objection that is of record and properly indexed, then Purchaser shall be
deemed to have waived any such title objection. Upon receipt of Purchaser's
notice of title objections, Seller shall in good faith endeavor to satisfy or
correct the valid title objections on or before the Closing; provided, however,
Seller shall not be required to institute any lawsuit or other legal proceeding
in order to satisfy or correct any title objection or to pay more than $2,500.00
to satisfy or correct any title objection. At or before the Closing, however,
Seller will pay any indebtedness of Seller secured by an interest in the
Property (or otherwise obtain release of the Property as security for such
indebtedness), and Seller may use all or part of the Purchase Price to do so.
If Seller does not satisfy any valid title objection by Closing, Purchaser shall
have the following options: (a) the right to terminate this Agreement and
receive the return of all Xxxxxxx Money, and, in that event, neither party shall
have any further liability to the other, except for those obligations which
specifically survive the termination of this Agreement; or (b) waive the title
objection and proceed to Closing with no reduction in the Purchase Price.
6.2 Survey. At Purchaser's expense, Purchaser shall be responsible for
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obtaining a survey of the Property, which survey will be completed and a copy
delivered to Seller within 30 days of Purchaser receiving bank charter
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approval. The Purchase Price will not be increased or reduced as a result of the
Survey.
6.3 Inspection. From and after the Effective Date, Seller hereby grants
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Purchaser and its agents and representatives a license to enter upon the
Property for the purpose of making such examinations, inspections, surveys,
tests, and analyses as Purchaser desires. Purchaser shall indemnify and defend
Seller against any liability, claim, or expense incurred by Seller as a result
of the exercise by Purchaser or its agents and representatives of this license,
which indemnification obligation shall survive the termination of this Agreement
or the Closing and shall not be merged in the deed from Seller to Purchaser.
ARTICLE SEVEN
CLOSING
7.1 Closing. The consummation of the purchase and sale of the Property
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(the "Closing") shall take place on or before May 1, 1999. Seller will make a
best effort to complete item covered in paragraph 4.9 by April 1, 1999 (to
facilitate an earlier Closing if requested by Purchaser).
7.2 Place of Closing. The Closing shall take place at the location
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specified by Seller, which location shall be in the Atlanta metropolitan area.
7.3 Seller's Deliveries. At Closing, Seller shall deliver to Purchaser
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the following documents, dated the Closing Date, the delivery and accuracy of
which shall be a condition to Purchaser's obligation to close:
(a) a General Warranty Deed in recordable form duly executed by Seller and
conveying to Purchaser good, fee simple, marketable, and insurable title to the
Property with the legal description acceptable to the title company Purchaser
has chosen to use and subject only to the Permitted Encumbrances; and
(c) such other documents, affidavits, or certificates as may be necessary
to consummate the sale of the Property and for Purchaser to obtain title
insurance.
7.4 Prorations. All real estate taxes, assessments, and similar charges
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on the Property (general and special, ordinary and extraordinary) for any prior
year shall either be paid in full by Seller at or before the Closing or credited
against the Purchase Price and assumed by Purchaser. All real estate taxes and
assessments for the year of the Closing shall be prorated between the parties as
of the date of Closing. The proration of current taxes shall be based on the
most recent tax xxxx, and, if the most recent xxxx is not the xxxx for the
current year, the proration of taxes shall be subject to further adjustment upon
receipt of the current xxxx.
7.5 Closing Costs. Seller shall pay any Real Estate Transfer Tax due in
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connection with the sale of the Property and its attorney's fees. Purchaser
shall pay all other closing costs and fees relating to Closing.
7.6 Commissions. Each party represents to the other that there is no
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broker or other person entitled to a commission or similar fee in connection
with this transaction. Each party covenants and agrees to defend and
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indemnify the other from any other liability or claim for commissions or similar
compensation for any service rendered at its instance in connection with this
transaction. The foregoing indemnification shall survive the Closing and any
termination of this Agreement.
7.7 Delivery of Possession. Seller shall deliver possession of the
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Property to Purchaser at the time of Closing.
ARTICLE EIGHT
CONDEMNATION
If any time before Closing all or a material portion of the Property is
condemned or subject to a bona fide notice of condemnation or is taken for any
public use, Purchaser may elect one of the following options in its sole
discretion: (a) terminate this Agreement and receive the Xxxxxxx Money, and, in
that event, neither party shall have any further liability to the other, except
for those obligations which specifically survive the termination of this
Agreement; or (b) receive an assignment of Seller's right to any award
resulting from the condemnation and proceed to Closing with no reduction in the
Purchase Price.
ARTICLE NINE
MISCELLANEOUS
9.1 Liquidated Damages. If the purchase and sale of the Property is not
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consummated due to Purchaser's default or breach, the Xxxxxxx Money shall be
paid to Seller as Seller's full liquidated damages for such default or breach;
provided, however, the Xxxxxxx Money is not intended as liquidated damages for
Purchaser's failure to perform any indemnification or reimbursement obligation
under this Agreement, and Seller may recover all damages recoverable for any
such breach of this Agreement. The parties acknowledge that Seller's actual
damages in the event of a default by Purchaser will be difficult to ascertain
and that such liquidated damages represent the parties' best estimate of such
damages. The parties expressly acknowledge that the foregoing liquidated
damages are intended not as a penalty, but as full liquidated damages as
permitted under O.C.G.A. Section 13-6-7, in the event of Purchaser's default and
as compensation for Seller taking the Property off the market during the term of
this Agreement. Such liquidated damages shall be the sole and exclusive remedy
of Seller for Purchaser's default, and Seller hereby waives and releases any
right to xxx Purchaser for specific performance of this Agreement or to prove
that Seller's actual damages exceed the amount of the Xxxxxxx Money. If Seller
defaults under this Agreement, the Escrow Agent shall return the Xxxxxxx Money
to Purchaser upon demand, and Purchaser shall have all remedies available to it
under Georgia Law.
9.2 Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the transaction contemplated by this
Agreement, and it supersedes all prior understandings, promises, or agreements
between the parties.
9.3 Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the parties and their respective heirs, devisees, personal
representatives, successors, and permitted assigns.
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9.4 Waiver; Modification. Failure by Purchaser or Seller to insist upon
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or enforce any of its rights shall not constitute a waiver of such right unless
the party with the right so states in writing. Either party may waive any
provision or condition for its benefit contained in this Agreement. No oral
modification of this Agreement shall be binding upon the parties, and any
modification or amendment must be in writing and signed by the parties.
9.5 Time of Essence. TIME IS OF THE ESSENCE OF THIS CONTRACT.
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9.6 Governing Law. This Agreement shall be governed by Georgia law.
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9.7 Remedies Cumulative. Each and every right, benefit, and remedy
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provided to Purchaser or Seller by this Agreement, or any instrument or
documents executed pursuant to this Agreement, are cumulative and shall not be
exclusive to any other right, remedy, or benefit allowed by law or equity to the
parties, except to the extent provided for in this Agreement.
9.8 Effective Date. For purposes of this Agreement, the "Effective Date"
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of this Agreement shall mean the date on which the last party to sign this
Agreement signs it.
9.9 Assignment. Seller shall have the right to assign this Agreement only
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with Purchaser's consent, which consent shall not be unreasonably withheld.
Purchaser shall have the right to assign this Agreement only with the prior
written consent of Seller, which consent will not be unreasonably withheld.
Upon such assignment, the assignor shall be relieved of all obligations under
this Agreement, except for obligations or liabilities accruing prior to the
assignment.
9.10 Notices. All notices, requests, consents, and other communications
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between the parties shall be in writing and shall be personally delivered or
mailed by first class certified mail, return receipt requested, postage prepaid
and shall be effective when received.
If to Seller:
Xxxxxx-Xxxxxx Canton, L.L.C.
c/o Xxxx Xxxxxx
0000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx 00
Xxxxxxx, Xxxxxxx 00000
If to Purchaser:
Cherokee Organizing Group, Inc.
d/b/a Cherokee Bank, N.A. (proposed)
X.X. Xxx 0000
Xxxxxx, Xxxxxxx 00000
If to Escrow Agent:
Xxxx X. Xxxxx, Xx.
000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxx 000-000
Xxxxxxxxxxx, Xxxxxxx 00000
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9.11 Exhibits. All Exhibits and the Special Stipulations to this Agreement
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are a part of the Agreement and are incorporated in it by reference.
9.12 Time Limit. Upon Seller's signing this Agreement, it shall be deemed
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an offer by Seller to Purchaser and shall remain open for acceptance until 5:00
p.m. on December 11, 1998 (the "deadline"). If this Agreement has not been
signed by Purchaser and returned to Seller by the deadline, the offer shall be
deemed automatically revoked and the Agreement ineffective with no further
action by Seller required.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day and year first above written.
SELLER:
XXXXXX-XXXXXX CANTON, L.L.C.
By: __________________________________
Xxxx Xxxxxx
Date: _____________________
PURCHASER:
CHEROKEE ORGANIZING GROUP, INC. D/B/A
CHEROKEE BANKING, N.A. (proposed)
By: _________________________________
Title: _______________________
[SEAL]
Date: _____________________
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SPECIAL STIPULATIONS
If there is any conflict between these Special Stipulations and any other
provision of the Agreement, these Special Stipulations shall supersede such
other provision and control. Any capitalized terms that are not defined in
these Special Stipulations shall have the same meaning as in the body of the
Agreement.
1. Site Work and Landscaping. Seller shall deliver the Property to
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Purchaser rough graded. At Purchaser's cost, Seller shall be responsible for
the design and installation of the landscaping and the irrigation system for the
Property. Within 14 days of the date that Purchaser and Seller approve the
building elevations and site development plans, Seller will provide Purchaser
with drawings and a price (the "Price") for the landscaping and irrigation
system for the Property, which drawings and Price shall be subject to
Purchaser's approval. Seller shall contract for the performance of such work
and shall cooperate with Purchaser in sequencing such work, so that it does not
delay or hinder Purchaser's construction on the Property. After installation of
the landscaping and irrigation system, Seller shall be responsible for
maintaining the landscaping and the irrigation system at Purchaser's cost, which
cost will be based on a contract for such services, which contract will be
submitted to Purchaser at the same time as the drawings and price mentioned
above. If Purchaser subsequently transfers the Property, the Seller shall
remain responsible for the landscape maintenance of the Property, and
Purchaser's transferee shall be liable for the cost of such maintenance, unless
Seller notifies Purchaser or its transferee to the contrary.
At closing, in addition to the Purchase Price, Purchaser shall pay the Price,
which amount will be held in escrow by Xxxx X. Xxxxx, Xx. ("JG"), as escrow
agent. JG will release the escrowed amount to or for Seller's benefit only upon
satisfactory completion of the work as certified in writing by the landscape
architect, and JG may rely upon any such certification in releasing funds under
this Contract and shall have no duty to make an independent determination as to
the completion of the work. If the landscape architect determines that the work
to be performed by Seller is either incomplete or, not performed in accordance
with the approved plans and drawings, Purchaser shall notify Seller of the
problem(s) and request that Seller cure the problem(s). Seller shall have a
reasonable time to cure the problem(s). If Seller does not begin the cure
within 15 days of receipt of Purchaser's notice or if at any xxxx Xxxxxx
discontinues performance of its work for 3 consecutive business days (not
including days of inclement weather or other work stoppages beyond the
reasonable control of Seller), Purchaser may take over and complete the
performance of the work and use any funds remaining in escrow for that purpose
and Seller remaining liable for any deficiency. In such case, upon Purchaser
providing JG with substantiation of its costs for completion, JG shall promptly
release to Purchaser an amount equal to such costs and pay the remainder (if
any) to Purchaser. Except for intentional misconduct or gross negligence, JG
shall not be liable to either party for any act or omission in his capacity as
escrow agent.
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2. Survival. Section 1.3, section 4.10, section 5.1, and Special
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Stipulation #1 shall survive the Closing and the execution and delivery of the
deed from Seller to Purchaser.
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EXHIBIT "A"
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[Map of Property location not reprinted]
EXHIBIT "B"
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After recording, return to:
RIVERSTONE DEVELOPMENT
DECLARATION OF RESTRICTIVE COVENANTS
THIS Declaration of Restrictive Covenants is made and entered into
_____________, 1998, by Xxxxxx-Xxxxxx Canton, L.L.C., a Georgia limited
liability company ("Declarant").
W I T N E S S E T H:
WHEREAS, Declarant is the owner of the Property described in the attached
EXHIBIT A; and
WHEREAS, Declarant intends to develop the Property, but also anticipates
that portions of the Property will be sold and developed separately; and
WHEREAS, Declarant desires that the Property be developed in a uniform
manner, and Declarant desires to establish certain restrictions, covenants,
requirements, and conditions with respect to the development, operation,
management, and use of the Property.
NOW, THEREFORE, for and in consideration of the benefits accruing to the
Property (and each portion of the Property that may be subsequently conveyed)
from the restrictions, covenants, requirements, and conditions created by this
Declaration, Declarant hereby submits and subjects the Property to the
restrictions, covenants, requirements, and conditions set forth in this
instrument.
1. Definitions. The following capitalized terms shall have the following
meanings when used in this Declaration:
(a) "Declarant" means Xxxxxx-Xxxxxx Canton, L.L.C., a Georgia limited
liability company, and its successors and assigns.
(b) "Declaration" means this Riverstone Development Declaration of
Restrictive Covenants, as it may be amended from time to time.
(c) "Effective Date" means the date that this Declaration is executed
by Declarant.
(d) "Improvements" means any improvement to the Property or any
Parcel, including buildings (both the main portion and all projections or
extensions), canopies, parking areas, access ways, sidewalks, loading areas,
outside platforms and docks, fences, walls, hedges, trees, shrubs, mass
plantings and other landscaping, poles, posts, bases, signs, and any and all
structures of any type or kind located, placed, erected, or maintained on the
Property or any Parcel.
(e) "Including" (which need not be capitalized to have this meaning)
means "including (but not limited to)" and "include" means "include (without
limitation)," unless otherwise specifically stated.
(f) "Law" or "Laws" means all federal, state, or local laws,
statutes, ordinances, building codes, rules, and regulations relating to the
Property, any Parcel, any Owner, or the matters contained in this Declaration
and includes any future amendments to or substitutions for any such Law.
(g) "Owner" means each owner of any Parcel, and "Owners" means all
such Owners.
(h) "Parcel" means any part of the Property (but less than all of the
Property) that is subsequently transferred by Declarant, and "Parcels" means
all such Parcels.
(i) "Public Body" means any federal, state, or local governmental
entity, agency, or administrative body having jurisdiction over the Property or
any Parcel.
(j) "Restrictions" means the restrictive covenants set forth in this
Declaration.
(k) "Riverstone" means the Riverstone, Development, a multi-use
development being undertaken by Declarant, which includes development of the
Property.
(1) "Shopping Center" means, collectively, all shopping centers
within Riverstone, including Xxxxxxxxxx Xxxxx xxx Xxxxxxxxxx Xxxx Xxxxxx.
2. Establishment of Restrictions. After the execution and recording of
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this Declaration, the Property (and each and every Parcel) shall be transferred,
held, developed, used, and occupied subject to the Restrictions and other
requirements and provisions of this Declaration. Declarant intends that the
Restrictions and such requirements shall be covenants running with the land and
shall inure to the benefit of and bind the heirs, executors, legal
representatives, successors, and assigns of Declarant and all Owners. Unless
otherwise stated, each Owner shall be responsible to conform his Parcel to the
Restrictions and any other requirements of this Declaration. Any Owner shall be
bound by this Declaration only as to the Parcel or Parcels owned by such Owner.
In addition, an owner shall be bound by this Declaration only during the period
he is the fee simple owner of his Parcel, except as to obligations, liabilities,
or responsibilities that arise or accrue during that period. Declarant does not
intend that this Declaration create any rights or privileges in and for the
benefit of the general public, and it shall not be construed to do so.
3. Purpose of Restrictions. The purpose of this Declaration and the
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Restrictions is to insure the development and use of the Property (and each and
every Parcel) in accordance with the requirements and criteria in this
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Declaration; to protect all Owners and tenants of Owners against construction,
development, and use that does not conform to the requirements of this
Declaration; to encourage the erection of attractive Improvements at appropriate
locations; to control the use of the Property and each Parcel; and, in general,
to insure and provide for high quality Improvements of the Property.
4. Parking. Each Owner shall provide paved, off-street parking and
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access lanes for his Parcel sufficient to accommodate the vehicular traffic of
the Parcel, including the vehicles of employees, customers, and invitees and
other vehicles used in the business conducted on the Parcel. All parking areas
on a Parcel and access to the Parcel shall conform to all applicable Laws
without any variances.
5. Signs. No signs or other advertising devices shall be installed or
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permitted on any Parcel except to the extent specifically permitted by this
Declaration. No window, door, or special event signs shall be installed except
as permitted by Declarant in its sole discretion. No signs may be erected on
the Property without the prior consent of Declarant. The design of all signs to
be installed on any Parcel are also subject to Declarant's prior written
approval. Before beginning construction or installation of any sign on his
Parcel, an Owner shall submit detailed plans and specifications for the sign to
Declarant for its approval, which plans and specifications shall include the
materials to be used and the contents, size, construction, color, face type,
location, and set-back for the sign. During or after installation or
construction, Declarant may inspect all signs. If a sign has not been approved
by Declarant or the sign that is being or has been constructed or installed is
different than the design approved by Declarant, Declarant may in its sole
discretion remove the sign, and, if it does so, the Owner of the Parcel on which
the sign was located shall promptly reimburse Declarant on demand for the costs
Declarant incurs in such removal. Without Declarant's prior approval, there
shall be no pennants, banners, streamers, sign trailers, spinners, balloons, or
the like used on any Parcel or attached to any Improvement. Without Declarant's
prior approval, no neon tubing shall be attached to the exterior of any
Improvement, unless it is in an approved building sign.
Each Owner shall keep all signs on his Parcel well maintained and in good
working order and lighted from dusk until at least 12:00 midnight.
Additional signage requirements are as follows:
(a) Content. With the exception of directional signs, parking signs,
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and signs advertising a Parcel for sale or lease, the content or wording on all
signs located on a Parcel or its Improvements shall be restricted to setting
forth the building or company name and the company emblem, logo, or trade name.
Slogans, mottos, or other commentary shall not be allowed on any sign, and,
unless otherwise required by law, underwriters' and sign fabricators' labels and
permits shall be located so as to be inconspicuous. All wiring, ballasting
starters, and equipment for all signs shall be concealed from view, unless
otherwise required by law.
(b) Lighting. Signs may be illuminated so long as none of the
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following illuminating methods are used: moving, flashing, scintillating, or
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blinking signs; painted iridescent signs; Da-Lite or Da-Glo fluorescent plastic
signs; signs utilizing exposed lighting tubes or exposed neon lighted tubes,
unless contained in an open channel letter.
(c) Freestanding Signs. There shall be allowed only one freestanding
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sign on each Parcel, which shall be a monument type sign; provided, however,
such limitation shall not apply to a directional sign for a drive-in window or a
menu panel used in connection with a drive-in window, but any such directional
sign and menu panel must otherwise conform with this Declaration. The
freestanding monument sign shall be on a base of the same or similar quality,
color, materials, and texture as the primary masonry materials used in the
exterior finish of the Improvements constructed on the Parcel. Signs indicating
that the Property is for sale or lease are not subject to these specific
provisions regarding freestanding signs. The permissible size of the
freestanding sign will vary depending on the square footage of the primary
building constructed on the Parcel as follows: (1) if the building has less than
50,000 square feet, the sign shall not exceed 5 feet in height (measured from
ground level to the top of the sign), and no sign face shall exceed 30 square
feet in size; and (2) if the building has 50,000 square feet or more, the sign
shall not exceed 8 feet in height (measured from ground level to the top of the
sign), and no sign face shall exceed 35 square feet in size.
(d) Signs Attached to Improvements. There shall be no signs painted
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on any Improvements. There shall be no more than two signs attached to the
exterior of the major Improvement on a Parcel. The letters of all signs
attached to Improvements shall be individually cut and mounted letters and shall
be either internally lighted or floodlighted, but any such floodlighting must
emanate from ground level or below, and all floodlight fixtures and wiring must
be either screened from view or below ground level. The sign letters shall not
exceed 2 feet in height, and, unless Declarant approves otherwise, no letter
shall be closer than 2 feet from the end of the building on which the letters
are mounted or attached. No signs, stickers, advertising materials, or other
materials shall be attached to the glass of any windows or doors of any
Improvement.
(e) Method of Approval. Before beginning the installation of any
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sign, an Owner shall submit to Declarant for Declarant's approval three sets of
shop drawings for the sign. In addition to containing all of the information
set forth above, the shop drawings shall include construction details, colors,
and finishes. The proposed location of the signs shall be indicated on the shop
drawings. The location of the union and fabricators' labels on the signs must
also be indicated.
Within 30 days after Declarant's receipt of plans containing the
information and detail required by this section, Declarant shall either approve
or reject the plans in writing. If written approval or rejection is not given
by Declarant within that 30-day period, the plans shall be deemed approved so
far as they are consistent with the other provisions of this Declaration. If
Declarant rejects plans, Declarant shall note the reason or reasons for the
rejection on the plans or otherwise communicate the reasons for rejection to the
Owner.
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(f) Compliance with Requirements. The Owner intending to install a sign
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on his Parcel shall be solely responsible for complying with all applicable
Laws, including any sign ordinances, and Declarant's approval of an Owner's sign
plans shall not be deemed a warranty or representation by Owner that such plans
comply with the applicable Laws. The Owner intending to install a sign shall be
solely responsible for obtaining and paying for all necessary licenses and
permits relating to the sign to be installed.
6. Use of a Parcel. Declarant must approve the initial use and any
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change in the use of a Parcel, which approval shall not be unreasonably withheld
or delayed. Without Declarant's prior consent, which consent may be granted or
withheld in Declarant's sole discretion, no Owner may use all or any part of his
Parcel for a commercial motion picture facility or movie theatre.
7. Subdividing. Without Declarant's prior written consent, which consent
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may be granted or withheld in Declarant's sole discretion, an Owner may not
subdivide his Parcel.
8. Improvement Plans.
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(a) General. Before any Improvement is constructed or altered on his
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Parcel, the Owner must submit to Declarant for its written approval all
architectural plans, specifications, and elevations, the exterior building and
site plans for any such construction or alteration and landscaping plans
(collectively, the "Plans"). Among other things, the submitted Plans must show
the location, materials for, and color of each proposed Improvement, the
boundary lines of the Parcel, the location of drive lanes, parking areas, and
spaces, building setback distances, the location of outside lighting fixture,
and the materials, colors, and height of fences or other dividers (if any)
between the Parcel and the adjoining Property. If Declarant fails to approve or
disapprove of the submitted Plans within 30 days after receipt of a full set of
the Plans, the Plans shall be deemed approved to the extent they are consistent
with the requirements of this Declaration. Declarant's approval or disapproval
of submitted Plans shall be based on a variety of criteria, including the
following: (1) Conformity of the Plans to the requirements of this Declaration;
(2) the adequacy of site dimensions; (3) conformity and harmony of external
materials and design with existing and proposed neighboring Improvements and
adjacent common areas; (4) the effect of the Improvements on neighboring sites;
(5) the relation of topography, grade, and finished ground elevations of the
Parcel to that of neighboring Parcels; (6) the absence of metal exterior siding
on the proposed Improvements; (7) one primary building on the Parcel; and (8)
the proper location of all utilities.
(b) Specific Requirements. No building will exceed one story in
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height without the approval of Declarant. The outside lighting system for the
Parcel shall be designed to produce a minimum maintained lighting intensity,
measured at grade, of 3-foot candles over the entire Parcel. The lighting
fixtures shall be the VLAL-Series pole-mounted fixtures by Nu-Art Lighting &
Mfg. Co. (or a comparable fixture approved by Declarant), mounted on 30 - 40
foot round, tapered steel poles. The poles and luminaries are to be dark
bronze. The lamps are to be metal halide. Exterior finish material will be
predominantly face brick manufactured by Boral (field brick is
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"Georgetown" and accent brick is "Bayshore"), but the field brick and accent
brick may be reversed with Declarant's approval. The mortar color for use with
the brick shall be Flamingo C-105 (manufactured by Giant). All utilities must be
located underground. Storm water drainage shall be implemented by the use of
catch basins and underground storm lines. No open ditches will be permitted. All
run-off from restaurant service areas shall be collected in a storm drain before
entering any driveway. No on-site septic system or sanitary sewer treatment
facility will be permitted on any Parcel. There must be a ten-foot landscape
buffer along roadways as measured from the right-of-way line to the interior
curb of the Parcel, and the parking area of the Parcel must be screened along
adjacent roadways. The landscaping and irrigation plan for the Parcel must
comply with the requirements of section 8 and include irrigation and tree
plantings along adjacent roadways.
(c) Covenant Not to Xxx. Each Owner covenants not to bring any action
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or suit against Declarant either in law or equity arising out of Declarant's
approval, disapproval, or failure to approve any Plans submitted for approval
pursuant to this Declaration.
8. Landscaping. The Plans as they relate to landscaping (the "Landscape
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Plans") must contain both a planting plan and an automatic underground
irrigation plan, which Landscape Plans must conform to the following
specifications:
(a) Planting Plan. This plan shall contain a full description of the
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plants to be used in the landscaping of the Parcel, including common name,
botanical name, type, size or caliper, whether root balls or container, and the
type of sod or seed. The plan shall also specify the type of mulch to be used
and the planting details of the plants, including depth and soil mix. The
following requirements shall apply to any such plan:
(1) All peripheral road frontages (state roads and roads within
Riverstone) shall be planted with Pin Oak (quercus palustris) of 7-inch caliper
(measured one foot above the root ball) with a minimum height of 25 feet, a
maximum height of 30 feet, a minimum spread of 12 feet on 60-foot centers, and a
straight trunk and center leader. All Willow Oaks to be used in Riverstone
shall be purchased from a single source to be designated by Declarant.
(2) All road rights-of-way adjacent to any Parcel and a strip with a
minimum width of 10 feet (as measured from the right-of-way line to the interior
curb of the Parcel) shall be sodded with Kentucky 31 Fescue Sod, and the Owner
shall irrigate and maintain that sod. In those areas, the Owner must use a 3-
foot berm or hedge planting to screen all parking areas.
(3) Annuals shall be planted on either side of each driveway from a
peripheral road.
(4) All internal drive frontages shall be planted with Red Maple
(Autumn Flame), having a minimum caliper of 3 inches, a minimum height of 14
feet on 50-foot centers, and a straight trunk and central leader.
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(5) Each building to be located on a Parcel shall have a landscaped
area on each side of the building (including the front and back of the building)
with a width of at least 5 feet and a length of at least 50% of the building
side.
(6) Each parking area to be located on a Parcel shall contain islands
planted with evergreen ground cover or sod and a sufficient number of shade
trees (Red Maple -Autumn Flame) to maintain a ratio of one tree for every 20
parking spaces. At the time of planting, each tree shall have a minimum caliper
of 3 inches and a minimum height of 14 feet and a straight trunk and central
leader.
(7) All storage or service areas that are visible from peripheral or
interior roads or from Shopping Center parking lots shall be completely screened
from view by an evergreen hedge at least 6 feet in height at the time of
planting. Any chain link fence visible from a peripheral road shall be planted
with a hedge or screen on the road side at least equal to the height of the
fence at time of planting.
(8) All trees to be planted pursuant to the Landscape Plans shall be
dug up and shipped with a wire ball, suitable for planting as a street tree,
and, when planted, shall be properly wrapped and guyed.
(b) Automatic Underground Irrigation Plan. This plan shall detail the
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complete underground irrigation system for all planted areas of the Parcel,
which system shall provide 100% coverage of all landscaped areas on the Parcel.
(c) Additional Requirements. Both the planting plan and the
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irrigation plan for each Parcel shall be subject to the following additional
requirements: each such plan shall be prepared by a landscape architect
experienced in commercial landscaping; each such plan shall contain an outline
of maintenance procedures for the landscaping or irrigation (as the case may
be), specifying the respective duties of all parties to be involved in such
maintenance. Maintenance procedures shall include planting schedules (including
schedules for seasonal flowers) and shall specify the material, soil mix, and
time for planting.
9. Construction. All construction on any Parcel shall comply with all
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applicable Laws. Construction activities on any Parcel shall not:
(a) cause any unreasonable increase in the cost of constructing
Improvements upon another Owner's Parcel;
(b) unreasonably interfere with construction being performed on any
other Parcel;
(c) unreasonably interfere with the use, occupancy, or enjoyment of any
other Parcel by the Owner or occupants of such other Parcel; or
(d) cause any building or building signage located on any other Parcel to
be in violation of any applicable Law.
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10. Maintenance Provided by Riverstone Association. To insure a high
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quality appearance along the roads within and adjacent to Riverstone
(specifically, X.X.0, X.X.000, xxx Xxxxxxxxxx Xxxxxxx), the Declarant shall have
the right to form an Association whose purposes shall be:
(a) the maintenance of landscaping and irrigation in parkway road medians;
(b) the maintenance of the Riverstone entrance signs including lighting,
landscaping, and irrigation;
(c) the maintenance and repair of Riverstone information and directional
signs.
Each Owner agrees to join the Association and for items (a), (b), and (c)
the annual assessment applicable to the Owner's Parcel shall be determined by
the Association, based upon actual and estimated costs and expenses and
apportioned on a per acre basis with each Parcel being apportioned such share of
the total cost as the total acreage of the Parcel bears to the total acreage
within Riverstone (approximately 500 acres). In no case, however, shall the
annual assessment for an Owner exceed $200.00 per acre during the first three
years after the Effective Date and shall not increase by more than 3.0% per year
after that.
Each Owner shall pay his share of estimated Association expenses for the
work outlined in (a), (b), and (c) above annually and in advance. After the
first full calendar year of operation, the estimated annual Association expenses
shall be based upon the previous year's actual expenses. A 3.0% management
charge shall be allowed as an expense.
On or before the 90th day following the end of each calendar year during
the term of this Declaration, the Association shall send to each Owner a
statement of each Owner's share of the Association's expenses for the preceding
calendar year together with a good faith estimate for the amount of the annual
payment for the forthcoming year. The statement for the prior year shall be
reasonably detailed and certified as true and correct by an officer of the
Association. Each Owner shall pay the good faith estimate within 60 days of his
receipt of the estimate. The Association's estimate shall not exceed 103% of
each Owner's share of actual Association expenses for the preceding calendar
year unless a greater estimate is, in each Owner's sole discretion, supported by
documentation satisfactory to the Owner and approved by the Owner. If an
Owner's share of actual Association expenses exceeds the estimated amount paid
by each Owner for the preceding calendar year, the excess amount shall be paid
by the Owner to the Association within 90 days after the receipt of the
statement relating to the preceding year from the Association. If the estimated
amount paid by an Owner for the preceding calendar year exceeds the Owner's
share of actual Association expenses, the Association shall pay the excess
amount to the Owner simultaneously with delivery by the Association to the Owner
of the statement for the preceding calendar year. Each Owner's share of
Association expenses for a partial calendar year shall be prorated on a per diem
basis for such partial calendar year.
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An Owner shall have the right to audit the Association's books and records
to verify the Association's calculation of Association expenses and the Owner's
share. If the Association erred in its favor, the Association shall immediately
refund the overcharge to each owner upon demand.
11. Road Lighting. The Declarant shall cause the roads within Riverstone
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to be lighted with poles being located approximately 200 feet apart on both
sides of the roads. The lighting will use high pressure sodium fixtures. The
Declarant intends to have the system installed and maintained by the Georgia
Power Company ("GPC"). Each Owner agrees to pay GPC (or any alternative or
subsequent supplier) for the charges for the lights located in and along the
right-of-way in front of the Owner's Parcel, and, if permitted by GPC, the Owner
will be billed directly by GPC for such charges. The Declarant will be
responsible for paying those charges for lights located along the right-of-way
that do not abut any other Owner's Parcel.
12. Maintenance. Each Owner shall maintain his Parcel and the
-----------
Improvements on it and keep them in a neat and orderly condition and free of
trash, debris, pests, and unsafe or unsanitary conditions, in compliance with
all applicable Laws, and in compliance with this Declaration. The minimum
standard of maintenance shall be comparable to the standard of maintenance
followed in other first-class developments of comparable size in the
metropolitan Atlanta, Georgia, area. All Improvements shall be repaired or
replaced with materials at least equal to the quality of the original materials
being repaired or replaced and maintain the architectural and aesthetic harmony
and integrity of the Property and Parcels as a whole. No Owner shall cause or
permit a nuisance to exist on his Parcel. Each Owner shall be responsible to
landscape, plant, and irrigate his Parcel and trim, cut, mow, water, and
regularly fertilize all exterior areas of his Parcel (including adjacent road
rights-of-way) not covered by Improvements and paving.
Each Owner shall maintain and keep in good repair all paved surfaces of his
Parcel and shall immediately repair pot holes or other defects in the paving.
Each Owner shall resurface all paved areas of the Property at least once every
10 years unless such obligation is waived in writing by Declarant. Each Owner
shall regularly sweep, light, stripe (where appropriate), and clean all paved
and parking areas of his Parcel and, as soon as reasonably practical, remove all
ice and snow that may be found at any time upon those areas.
From time to time at reasonable hours, Declarant or any authorized agent of
Declarant may enter upon and inspect any Parcel to insure that each Improvement
and the maintenance of the Parcel comply with the provisions of this
Declaration. If an Owner fails to perform his maintenance obligations,
Declarant has the right (but not the obligation) to perform such maintenance at
the Owner's expense, and the Owner shall promptly reimburse Declarant upon
demand for any such expenses incurred by Declarant. If such expenses are not
promptly reimbursed, in addition to whatever other remedies that Declarant may
have, Declarant may lien the Parcel.
13. Damage or Destruction of Building Improvements. If any building
----------------------------------------------
Improvement, including building signage, is damaged or destroyed by fire or
other hazard (the "Event"), the Owner upon whose Parcel the Improvement is
-9-
located shall immediately remove the debris resulting from such Event and
promptly begin the repair or restoration of the damaged or destroyed Improvement
or, if the Owner decides not to repair or restore or cannot repair or restore
for any reason, increase the landscaping and sodding of the Parcel so the Parcel
does not detract from the rest of the Property.
14. Loading Spaces. Delivery vehicles to a Parcel must be loaded and
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unloaded on and from the Parcel. Each Owner shall provide sufficient loading
and unloading spaces and other necessary Improvements to permit all loading and
unloading to be done on and from his Parcel.
15. Refuse. Each Owner shall store all trash and garbage in adequate
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containers, shall locate such containers so they are not readily visible from
the parking area for the Parcel, shall arrange for regular removal of such trash
or garbage, and shall be responsible for cleaning, sweeping, and maintaining the
area where trash and garbage is stored. No Owner or tenant of any Parcel shall
permit or allow any junk, scrap, rubbish, trash, refuse, or litter to remain on
the Parcel so as to detract from the neat and well-ordered appearance of the
Parcel or constitute a fire hazard. All refuse areas for each Parcel shall be
screened by a permanent masonry wall enclosure constructed to match the masonry
finish on the main Improvements of the Parcel, which wall shall have a metal
gate that shall not be visible from the street or streets abutting the Parcel.
16. Enforcement. Declarant may enforce the requirements and Restrictions
-----------
in this Declaration by a proceeding at law or in equity against any person or
persons violating or attempting to violate or circumvent those requirements and
Restrictions, and, in such a proceeding, Declarant may request a temporary
restraining order and injunction to restrain and enjoin violations and may seek
damages for violations. The remedies given to Declarant in this section are
distinct and cumulative remedies, and the exercise of any such remedy shall not
prevent Declarant from exercising any other right or remedy it may have.
Declarant's failure, however long continued, to enforce any right, reservation,
Restriction, or condition contained in this Declaration shall not be deemed a
waiver of such right, reservation, Restriction, or condition and shall not bar
or affect any other right or remedy of Declarant contained in this Declaration.
The two-year statute of limitations period of O.C.G.A. 9-3-29 shall apply with
respect to any breach of any Restriction. If Declarant prevails in any such
action, it may recover its reasonable attorney's fees and other litigation
expenses actually incurred in connection with such action.
17. No Temporary Structures. No temporary Improvement, including
-----------------------
trailers, campers, tents, and similar structures, shall be placed upon any
portion of any Parcel at any time, except, during construction of any
Improvements on the Parcel, the general contractor being used for such
construction may erect a temporary structure for its use during construction,
which structure must be promptly removed upon substantial completion of
construction or if construction is not continuously pursued.
18. Mechanical Units. Any exterior mechanical units, including roof
----------------
units, must be screened.
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19. Duration. The Restrictions and every other provision of this
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Declaration shall continue in full force and effect for 20 years from the
Effective Date, after which time, the Declaration shall be automatically
extended for successive periods of 20 years each, unless Declarant records a
Notice of Termination of Declaration before the expiration of the 20-year
period, in which event the Declaration shall terminate at the end of the 20-year
period. If any Law prohibits any Restriction or this Declaration from being
enforceable for more than 20 years or beyond any other stated period, Declarant
is hereby granted a power-of-attorney coupled with an interest to re-record this
Declaration at any time and from time to time for the purpose of extending its
enforceability, which power Declarant may or may not exercise in its sole
discretion. Declarant may terminate, extend, modify, amend, or waive any of the
Restrictions or any provision, covenant, or condition contained in this
Declaration as to the whole Property or any Parcel. No such termination,
extension, modification, waiver, or amendment shall be effective until a proper
instrument in writing has been duly executed and recorded in the Office of the
Clerk of the Superior Court of Cherokee County, Georgia. Declarant shall
provide each Owner with a copy of any such termination, extension, modification,
waiver, or amendment.
20. Assignment. Declarant may assign any and all of the rights, remedies,
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powers, obligations, and reservations of Declarant contained in this Declaration
to any other person, corporation, association, partnership, or other entity
(collectively, a "Transferee") to whom Declarant conveys any of the Property to
be benefited by the Restrictions and this Declaration. To the extent of such
assignment, the Transferee shall have the same rights, remedies, powers, and
obligations as are given to Declarant in this Declaration.
21. Constructive Notice. Every person who subsequently owns or acquires
-------------------
any right, title, estate, or interest in the Property or any Parcel is and
shall be conclusively deemed to have consented and agreed to every requirement,
covenant, condition, and Restriction contained in this Declaration, even if
this Declaration is not referenced in the instrument by which such person
acquires an interest in the Property or the Parcel.
22. Headings. The headings or titles to the sections of this Declaration
--------
are for reference purposes only and shall have no effect upon the construction
or interpretation of any section.
23. Separability. If a court shall hold any part of this Declaration or
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the application of any part to any person or circumstances invalid, the
remainder of this Declaration or the application of the remainder of this
Declaration to such persons or circumstances shall not be affected by such
holding and shall remain in full force and effect.
24. Conflict. Notwithstanding any provision to the contrary, if there is
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a conflict, ambiguity, or other inconsistency between any of the terms and
provisions of this Declaration and any Law, the terms and provisions which are
more restrictive shall be deemed controlling.
25. Notices to Declarant and Owners.
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