Template for Road Maintenance Agreement

TOWN OF DURHAM, MAINE PRIVATE ROAD MAINTENANCE AGREEMENT TEMPLATE

For use with private road approvals under Section 5.24 of the Durham Land Use Ordinance Applicant/Attorney Instructions — Do Not Record This Box This template is intended to assist applicants in preparing a road maintenance agreement for Planning Board review under Section 5.24 of the Durham Land Use Ordinance. It is not legal advice and should be completed or reviewed by a Maine attorney or title professional before signing and recording. Delete these instructions before recording. Bracketed text and blank lines must be completed or removed, as applicable. Section 5.24 allows a maintenance agreement or escrow agreement in registry-recordable form. This document is a maintenance agreement template only; an escrow agreement or performance guarantee may require separate documents. The final agreement should be submitted for Planning Board approval before developing, extending, or putting to first use a private road or way subject to Section 5.24. It should be signed and acknowledged by all owners whose lots contain dwelling units or structures using the private road, recorded in the Androscoggin County Registry of Deeds after approval, and referenced in all future deeds for lots served by the private road.

PRIVATE ROAD MAINTENANCE AGREEMENT

This Private Road Maintenance Agreement (the “Agreement”) is made as of the _____ day of __________________, 20____, by and among the undersigned owners of the lots identified below, each being an owner of a lot containing a dwelling unit or structure using or intended to use the Road, together with their heirs, successors, and assigns (collectively, the “Owners”). Name of Private Road or Way: ________________________________________________ Project/Subdivision Name, if any: ________________________________________________ Town Approval Reference, if any: ________________________________________________ Plan Title and Recording Reference, if known: ________________________________________________ Tax Map/Lot Numbers Served by Road: ________________________________________________ RECITALS WHEREAS, the private road or way identified above (the “Road”) is or will be located in the Town of Durham, Androscoggin County, Maine, and is shown on the plan referenced above, or on such other plan or legal description as may be recorded in the Androscoggin County Registry of Deeds; WHEREAS, the Road provides, or is intended to provide, access to two or more dwelling units, or to one or more structures intended for commercial, industrial, or light industrial use, and is therefore subject to Section 5.24 of the Durham Land Use Ordinance; WHEREAS, the Owners desire to establish legally binding rights and obligations for the construction, maintenance, repair, and snow plowing of the Road; and WHEREAS, the Owners intend that this Agreement be recorded and that its obligations run with the land and bind all future owners of the lots served by the Road. NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Owners agree as follows:

1. Road and Lots Subject to Agreement. This Agreement applies to the Road and to each lot or parcel that has the right to use the Road for access. The lots initially subject to this Agreement are listed in Exhibit A. The legal description of the Road, easement, right-of-way, or fee interest is attached as Exhibit B or incorporated by reference to the recorded plan identified above. The Owners signing this Agreement represent that they are the owners required to execute the Agreement for the lots containing the dwelling units or structures using or intended to use the Road, unless the Planning Board approves a different recordable arrangement consistent with Section 5.24.

2. Ownership and Access Rights. The ownership and access rights in the Road are structured as follows: [select and complete one or revise as appropriate: (a) the Road is owned in fee by __________________________; (b) the Owners hold undivided ownership interests in the Road; (c) each lot has easement rights over the Road; or (d) other: __________________________]. Each Owner shall have the nonexclusive right to use the Road for reasonable access to and from that Owner’s lot, subject to the terms of this Agreement.

3. Construction, Maintenance, Repair, and Snow Plowing Obligations. The Owners are jointly responsible, in the shares established by this Agreement, for the construction, maintenance, repair, and snow plowing of the Road. Maintenance includes, as applicable, grading, resurfacing, adding gravel or other surface material, drainage work, ditching, culvert installation and replacement, snow plowing, sanding or ice control, brush and vegetation control within the right-of-way, sign maintenance, and other work reasonably necessary to keep the Road passable and safe for ordinary vehicular access and emergency response.

4. Private Road Standards and Emergency Access. The Road shall be constructed and maintained in a condition that satisfies the approved plans, conditions of approval, applicable Durham private road standards, and any other applicable permit requirements. No Owner shall place, store, or allow vehicles, trailers, equipment, snowbanks, landscaping, gates, or other obstructions in the traveled way, shoulders, turnarounds, or emergency access areas in a manner that interferes with safe passage, drainage, snow removal, or emergency services.

5. No Town Responsibility; No Public Acceptance. The Owners acknowledge that the Town of Durham is not responsible for the construction, maintenance, repair, or snow plowing of the Road. The Town shall not be responsible for private road costs, and the Road shall not become a Town road unless it is brought into compliance with applicable public road standards and accepted by the Town of Durham at Town Meeting.

6. Road Agent or Maintenance Committee. The Owners shall designate a Road Agent or Maintenance Committee to administer this Agreement. The initial Road Agent/Committee is: ________________________________. The Road Agent/Committee shall monitor the condition of the Road, obtain contractor estimates, arrange routine maintenance and snow plowing, keep records, issue invoices or assessment notices, maintain any road account, and provide an annual accounting to the Owners. The Road Agent/Committee may be replaced by vote of the Owners as provided in Section 8.

7. Cost Allocation. Costs of construction, maintenance, repair, snow plowing, administration, insurance, professional services, emergency work, and enforcement shall be allocated among the lots served by the Road as follows: [select and complete one or revise as appropriate: equal share per lot; proportional share based on frontage; proportional share based on number of dwelling units; proportional share based on length of Road used; or other fair and equitable formula: __________________________]. The cost allocation formula shall apply to all routine and special assessments unless amended under this Agreement.

8. Budget, Assessments, and Voting. The Owners shall meet at least annually, or as otherwise needed, to approve a maintenance budget, authorize contracts, set assessments, designate the Road Agent/Committee, and address other Road matters. Each lot shall have ______ vote(s). Unless this Agreement requires a greater vote, action may be taken by approval of Owners representing more than fifty percent (50%) of the votes of the lots subject to this Agreement. For roads serving four or more parcels, the Owners should conduct meetings, notices, voting, assessments, reserve accounts, and collection procedures in a manner consistent with 23 M.R.S. §§3101–3104, as amended, to the extent applicable. The cost-allocation formula in Section 7 shall remain applicable to construction, maintenance, repair, and plowing unless amended in recordable form.

9. Routine Work and Emergency Work. The Road Agent/Committee may authorize routine maintenance and snow plowing within the approved budget without further vote. Emergency work reasonably necessary to preserve access, protect drainage facilities, address safety hazards, or permit emergency vehicle access may be authorized by the Road Agent/Committee and assessed to the Owners under the cost allocation formula. Work outside the approved budget that is not emergency work shall require Owner approval under Section 8.

10. Invoices, Due Dates, Interest, and Collection Costs. Assessments and invoices shall be due within ______ days after written notice to the Owner at the address listed in municipal tax records or at another address provided in writing. Amounts not paid when due shall bear interest at _____% per year or the maximum lawful rate, whichever is lower. A delinquent Owner shall be responsible for reasonable costs of collection, including registry recording fees, court costs, and reasonable attorney’s fees, to the extent permitted by law.

11. Lien and Notice of Claim for Unpaid Assessments. As required by Section 5.24 of the Durham Land Use Ordinance, each Owner agrees that the other signatories to this Agreement, or the Road Agent/Committee acting on behalf of the signatories, may place a lien or recorded notice of claim against the property of any signatory who has not paid that signatory’s allocated share of expenses for the Road, in the amount of the unpaid assessment for costs for the private way.

12. Future Divisions, Additional Lots, and Remaining Land. If any lot shown on the plan is divided, or if any remaining land of the declarant or any Owner is subsequently divided into lots that are served by the Road, each resulting lot served by the Road shall become subject to this Agreement. The Owners shall amend this Agreement as necessary to adjust duties, voting rights, and cost allocations equitably among all lots served by the Road. No Owner may create or convey a new lot served by the Road unless the deed or conveyance makes the new lot subject to this Agreement.

13. Extensions of Existing Private Roads Created Before March 6, 2004. If the Road is an extension of an existing private road or way that served lots created before March 6, 2004, the applicant/declarant states that the owners of such pre-existing lots have been contacted and offered the opportunity to make their properties subject to this Agreement. The applicant/declarant shall submit to the Durham Code Officer a notarized affidavit confirming compliance with this requirement and identifying which owners accepted or declined the offer. [Delete this paragraph if not applicable.]

14. Covenants Running with the Land. The duties and obligations imposed by this Agreement are covenants running with the land. They bind the Owners and all purchasers, donees, heirs, successors, assigns, and other transferees of any portion of the real estate subject to this Agreement. Each Owner shall provide written notice of this Agreement to any prospective purchaser or transferee before conveyance.

15. Reference in Deeds and Notice to Planning Board. This Agreement shall be referenced in all deeds to lots served by the Road. Upon transfer to a purchaser or other transferee of any lot or other portion of the real estate subject to this Agreement, the transferring Owner or new Owner shall notify the Durham Planning Board or its designee in writing and shall provide a copy of any changes or amendments to this Agreement.

16. Amendments. This Agreement may be amended only by written instrument signed by Owners representing at least ______% of the votes, provided that no amendment shall eliminate the obligations required by Section 5.24 of the Durham Land Use Ordinance unless approved by the Town as required by applicable law. Any amendment shall be recorded in the Androscoggin County Registry of Deeds and provided to the Town of Durham.

17. Enforcement. This Agreement may be enforced by any Owner, by the Road Agent/Committee, or by any other person or entity authorized under this Agreement. Available remedies include recovery of unpaid assessments, recording and enforcement of liens or notices of claim to the extent permitted by law, injunctive relief, specific performance, and recovery of reasonable attorney’s fees and costs by the prevailing party to the extent permitted by law.

18. Insurance and Indemnification. The Owners may purchase liability insurance or other insurance for the Road, Road Agent/Committee, and Owner members, and may include the cost of such insurance in the annual budget or special assessments. Each Owner shall be responsible for that Owner’s own use of the Road and shall not damage the Road or interfere with drainage or maintenance.

19. Severability. If any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions shall remain in effect to the fullest extent permitted by law.

20. Recording. After Planning Board approval, and before the Road is developed, extended, or put to first use when Section 5.24 requires prior approval, the person or persons submitting this Agreement shall record it in the Androscoggin County Registry of Deeds so that the obligations contained in this Agreement are covenants that run with the land upon which the dwelling units or structures are located.

SIGNATURES

IN WITNESS WHEREOF, the undersigned Owners have executed this Agreement as of the date first written above. Add additional signature and acknowledgment blocks as needed so that each Owner signs in recordable form. Owner 1: _________________________________________ Printed Name: _________________________________________ Mailing Address: _______________________________________ Lot/Parcel: ____________________________________________ Date: ______________________ State of Maine County of ______________________ On this _____ day of __________________, 20____, before me, the undersigned notary public, personally appeared ______________________________________, proved to me through satisfactory evidence of identification to be the person whose name is signed above, and acknowledged that he/she/they executed this Agreement voluntarily for its stated purpose. Notary Public: _________________________________________ Printed Name: _________________________________________ My Commission Expires: ________________________________

Owner 2: _________________________________________ Printed Name: _________________________________________ Mailing Address: _______________________________________ Lot/Parcel: ____________________________________________ Date: ______________________ State of Maine County of ______________________ On this _____ day of __________________, 20____, before me, the undersigned notary public, personally appeared ______________________________________, proved to me through satisfactory evidence of identification to be the person whose name is signed above, and acknowledged that he/she/they executed this Agreement voluntarily for its stated purpose. Notary Public: _________________________________________ Printed Name: _________________________________________ My Commission Expires: ________________________________

Owner 3: _________________________________________ Printed Name: _________________________________________ Mailing Address: _______________________________________ Lot/Parcel: ____________________________________________ Date: ______________________ State of Maine County of ______________________ On this _____ day of __________________, 20____, before me, the undersigned notary public, personally appeared ______________________________________, proved to me through satisfactory evidence of identification to be the person whose name is signed above, and acknowledged that he/she/they executed this Agreement voluntarily for its stated purpose. Notary Public: _________________________________________ Printed Name: _________________________________________ My Commission Expires: ________________________________

Owner 4: _________________________________________ Printed Name: _________________________________________ Mailing Address: _______________________________________ Lot/Parcel: ____________________________________________ Date: ______________________ State of Maine County of ______________________ On this _____ day of __________________, 20____, before me, the undersigned notary public, personally appeared ______________________________________, proved to me through satisfactory evidence of identification to be the person whose name is signed above, and acknowledged that he/she/they executed this Agreement voluntarily for its stated purpose. Notary Public: _________________________________________ Printed Name: _________________________________________ My Commission Expires: ________________________________

EXHIBIT A — LOTS AND OWNERS SUBJECT TO AGREEMENT

Owner Name Tax Map/Lot Street/Location Deed Book/Page Share / Votes

EXHIBIT B — LEGAL DESCRIPTION OR PLAN REFERENCE FOR ROAD

Plan Title: ________________________________________________ Plan Date: ________________________________________________ Surveyor/Engineer: ________________________________________________ Registry Plan Book/Page or Cabinet/Slide: ________________________________________________ Road/Easement Legal Description or Recording Reference: ________________________________________________

OPTIONAL EXHIBIT C — AFFIDAVIT FOR EXTENSION OF PRE-MARCH 6, 2004 PRIVATE ROAD

Use this exhibit only when Section 13 applies. I, ______________________________________, being duly sworn, state that I am the applicant/declarant for approval of the private road or way known as ______________________________________. The proposed private road or way is an extension of an existing private road or way that served lots created before March 6, 2004. I have contacted the owners of those existing lots, offered them the opportunity to make their properties subject to this Agreement, and recorded their responses as follows: Owner / Lot Contact Date and Method Accepted? Declined? / Notes

Declarant Signature: ______________________________________ Date: __________________ Notary acknowledgment: State of Maine County of ______________________ On this _____ day of __________________, 20____, before me, the undersigned notary public, personally appeared ______________________________________ and acknowledged the foregoing affidavit to be his/her/their free act and deed. Notary Public: _________________________________________ My Commission Expires: __________________