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HomeMy WebLinkAboutSUB201800202 Agreements 2019-01-23 of G'o)P-f COUNTY OF ALBEMARLE Department of Community Development 401 McIntire Road, North Wing Charlottesville, Virginia 22902-4596 Phone (434) 296-5832 Fax (434) 972-4126 Date: January 23,2019 Andrew H. Herrick County Attorney's Office 401 McIntire Road Charlottesville,VA 22902 Regarding: Project Name:SUB201800202—Advance Mills Division Date Submitted:01/23/19 Dear Mr. Herrick: The applicant has prepared and submitted a Private Street Maintenance Agreement for the above named project.At your earliest convenience, please review this document and the attached plat for the division.Should you have any questions or comments please feel free to contact me. Thanks, Brent W. Nelson Senior Planner Ext. 3438 bnelson@albemarle.org Prepared by:Lois A. Haverstrom (VSB#43712) Return to:170 South Pantops Drive, Charlottesville, VA, 22911 Albemarle County Tax Map:02000-00-00-006C0 Consideration$0.00 DECLARATION Private Street Maintenance Agreement This DECLARATION of PRIVATE STREET MAINTENANCE (hereinafter, the "Agreement") is made this day_of , 2019, by SOUTHERN PROPERTY, LLC, a Virginia limited liability company (hereinafter, the "Declarant"), whose address is 170 South Pantops Drive, Charlottesville, Virginia, 22911. WHEREAS, the Declarant is the owner of all that certain parcel of land, situated in Albemarle County, Virginia, on the west side of State Route 743, containing 5.649 acres, more or less, shown as Parcel 6C of Advance Mills Farm subdivision, on a plat by Rivanna Engineering & Surveying, PLC, dated June 11, 2001,last revised June 22, 2001, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 2051, Page 638 (the "Property"); BEING, a portion of the property conveyed to Southern Property, LLC by Deed from Charles Wm. Hurt and Shirley L. Fisher, as Trustees of the Advance Mills Farm Land Trust under Land Trust Agreement dated November 28, 2000, which deed is dated December 29, 2018, as recorded in the aforesaid Clerk's Office in Deed Book 5000, Page 158 .The Property is also known as Albemarle County Tax Map 02000-00-00-006C0; and WHEREAS,the Property was subdivided by the Declarant into two(2) Lots known as a portion of TMP 20-6C, Lot "A" which contains 2.825 acres, more or less, AND, Lot "B", which contains 2.825 acres, more or less, as shown and described in a plat by Roudabush, Gale & Associates, Inc., dated September 27, 2018, a copy of which is recorded immediately prior hereto and made part of this Agreement (hereinafter,the"Plat"); and WHEREAS,the "New 30' Private Access Easement—Calls to Center—"shown on the Plat will be a new 30 foot wide non-exclusive easement for ingress and egress (hereinafter,the "Private Street") for the use and benefit of Lots A and B created by and shown on the Plat. NOW, THEREFORE, for and in consideration of the premises and the undertakings contained herein, the Declarant hereby imposes upon the Property being Lots A and B shown on the Plat a shared Private Street to be maintained as follows: 1. MINIMUM STANDARD: The Private Street easement shall be 30 feet in width for the length, and in the location, as shown crossing Lot B on the Plat, to be constructed and maintained with blue stone gravel, culvert(s), drainage and ditches within said 30 feet, so as to be passable at most times for ordinary, non-commercial, use by passenger vehicles, excepting only temporary weather conditions from time to time, and maintained in perpetuity to substantially the same condition as when constructed and approved by the County. The travel-way within the 30 foot easement shall at all times be maintained so that it is safe and convenient for passenger automobiles and emergency vehicles, excepting temporary severe weather conditions. Private Street Maintenance AMF Parcel 6C,Lots A&B Page 1 of 5 0 0 2. MAINTENANCE: For purposes of this instrument "maintenance" shall include the maintenance of the Private Street, and all related drainage facilities, culverts, drainpipes, ditches, and other private street improvements, as well as the prompt removal of snow,water, debris, or any other obstruction so as to keep the Private Street reasonably open for usage by passenger vehicles and emergency service vehicles. The term "to maintain," or any derivation of that verb, includes the maintenance, replacement, reconstruction and correction of defects or damage. 3. COST OF MAINTENANCE: A. No public agency, including the Virginia Department of Transportation and the 4 County of Albemarle,Virginia,will be responsible for maintaining any improvement identified herein. 7 B. At such time as the Private Street requires maintenance or repairs to maintain it in passable condition as described above, the Owners of Lots A and B will pay the costs of the repair as set forth in this Agreement. No Owner shall be obligated for expenses in excess of ' those necessary to maintain the Private Street in a safe and passable condition as set forth. Only the Owners who utilize the Private Street for access to a dwelling unit on their Parcel shall share in this expense. Regardless of the number of parcels that have access to the Private Street Easement,the cost of maintaining the Private Street under this Agreement shall be based on the number of Inhabited Dwellings served by the Private Street, and,the distance from State Route 743 (Advance Mills Road) to the private driveway entrance for such Inhabited Dwelling. For purposes of this Agreement, an Inhabited Dwelling, shall include all houses, or other structures housing a person(s) as permanent or part-time resident, whether occupied or rented by the Owners of the properties,for any part of a calendar year. C. All the Owners shall share in said maintenance and repairs for that portion of the Private Street from State Route 743 to the beginning of the point at which that Owner stops using the Private Street, such as a junction with their personal driveway to access the respective dwelling on their Lot. The prorated cost for each such section of the Private Street shall be based on the number of Inhabited legal dwelling units served by the Private Street, it being agreed that this correlates to wear and tear of the Private Street. D. It is agreed that the method for calculating the shared cost of maintenance will require the following conditions prior to the commencement of any such work and expense to be imposed on any Owner: i. Any Owner may propose work for all or a portion of the road, so long as it is a section used by that Owner to access their Inhabited Dwelling. However, work shall not commence unless and until a majority of the Owners who use said section agree in writing to the nature, scope and expense of said work. Owners may only vote on work relating to sections of the Private Street that they have responsibility to pay for. ii. A majority shall be calculated as a simple majority based upon the number of lots served by the Private Street, with each Lot being entitled to one (1) vote per Lot, regardless of the number of Owners of any particular lot or the number of or dwelling units on any particular Lot. Multiple Owners that share one (1) vote shall exercise it as they, among themselves, determine, but in no event shall more one (1)vote be cast per Private Street Maintenance AMF Parcel 6C,Lots A&B Page 2 of 5 Lot. In the event of a tie the Parties must agree on maintenance by unanimous consent of the Parties. Parties may only vote on work relating to sections of the Private Street they are required to maintain under this Agreement. iii. A written proposal for any such repair work shall quote the expense based on sections,from the start of State Route 743 to each of the private driveways at Inhabited Dwellings in sequence from State Route 743, portioning out the cost of materials and labor for each such section, so that percentage of cost responsibility can be calculated. By way of example only: If the agreed cost to maintain the Private Street from State Route 743 to the first driveway on Lot B is $1,000.00, and assuming that there are two (2) Inhabited Dwellings served by the Private Street, one on each Lot A and Lot B, then the cost would be $500.00 to Lot A and $500.00 to Lot B for the first section of road maintenance. Further, if the cost from Lot B's driveway to the end of the 30' Private Street access easement is$2,000,then that cost would be the expense of Lot A only. iv. If there is more than one dwelling on any particular parcel, then the Owner of that parcel shall be included in the calculation and expense of road maintenance based on the number of Inhabited Dwellings, in keeping with, and agreeing to, the proportional concept of wear and tear tying occupancy to use. This does not increase the voting rights under this Agreement, which is determined by the number of Lots that may legally use the Private Street. The one (1) vote per Lot for Lots A and B shall not be expanded or diluted by future subdivision or boundary line adjustments. If an Owner further subdivides their parcel or sells a parcel then they share that one (1) voting right with any additional Owner of their parent parcel hereafter. v. If a majority of the Parties vote and agree that such repair work is desired, then all the Owners shall be obligated to pay their share as set forth herein. Voting shall be confirmed in writing, if any Party request written confirmation. Additional Owners who may elect to use said Private Street in the future are subject to this Agreement. vi. Any construction, clearing, farming, or other heavy truck or equipment activity on any Lot, with traffic on the Private Street which causes damage beyond that of normal residential use for ingress and egress, shall be promptly repaired at the sole cost and expense of the Owner who caused such work and damage be incurred. 4. WHEN TO MAINTAIN and FURTEHR IMPROVEMENT: A. After the initial construction of the Private Street, any further construction, maintenance or repair shall be undertaken only with the mutual consent of all owners, provided that in the event that one of the owners determines that the Street is not safe and convenient for passenger automobiles and emergency vehicles at all times except in severe temporary weather conditions and such owner gives 30 days prior written notice to all other owners using the Street, such owner may commence or contract for maintenance or repair to bring the Street to the minimum standard and the charges therefore shall be the responsibility of all owners using the Street, as proportionally set out in 3 above. However, no notice shall be required to initiate work undertaken by any particular Owner at their own expense, such as debris removal, snow removal,grading or other work that they may be equipped to handle without the need for outside cost or expense,or that they have committed to pay for 100%percent on their own. Private Street Maintenance AMF Parcel 6C,Lots A&B Page 3 of 5 0 B. The terms "maintenance" and "repair" shall include, but not be limited to, repairing the road surface, adding stone, clearing obstructions, grading or scraping the road as necessary, cleaning and re-cutting ditches, and, trimming brush and branches along the roadside, as necessary,to allow for reasonable and safe access for standard passenger vehicles. C. There shall be no obligation on any of the Owners or Parties to upgrade the Private Street to a superior condition than the blue stone gravel Private Street described herein, unless such upgrade is by unanimous written consent of all the Lot Owners. However any Owner or Party shall have the right at their sole and exclusive expense to upgrade said Private Street surface to a superior condition, such as asphalt. Thereafter, future maintenance and repair standards shall be at the upgraded standard. D. The Owner of Lot B grants to the other Owners a temporary construction easement of an additional Five (5) feet on either side of the Private Street, for the purpose of construction, maintenance, repair,or, upgrade to the Private Street as provided for in this Agreement. 5. DEFAULTING OWNER(S): A. If any owner shall fail to pay his/her proportionate share of the costs of maintenance or repair for which he/she is responsible, as provided hereinabove, any other owner not in default, or the person or corporation performing such maintenance, may after 30 days written notice to the defaulting owner(s) bring an action against each defaulting parcel owner in a court of competent jurisdiction and/or may record in the Clerk's Office of the Circuit Court of Albemarle County, a Notice of Lien against all of the said defaulting parcel owners to secure the payment of the assessment of a Lot failing to pay his/her proportional share of maintenance or repair. The amount due by any delinquent Owner shall bear interest at the maximum judgment rate provided by law from the date of completion of the maintenance; and the delinquent Owner shall be liable to pay all costs of collection, including reasonable attorney's fees. t B. There shall be a continuing lien upon each and every parcel having a right to use the Private Street to secure payment of charges for road maintenance and repairs but such liens A shall at all times be subject to any first or second deeds of trust placed on the parcels until notice of such lien shall be recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. Thereafter, from the time of such recordation, the amount stated in such notice of lien, together with interest, costs and reasonable attorney's fees, shall become a lien prior to any deeds of trust recorded subsequent to the recording of such notice. 6. ABANDONMENT: If a right to use the Private Street is forever abandoned in writing by a Lot Owner, that party shall not be required to share in the cost of maintenance or repair of the Private Street under this Agreement, but they shall also abandon their right to use the Easement for ingress and egress to their parcel(s). In order to abandon such right of use and the obligations under this Agreement, an Owner shall deliver by certified mail to all of the then record lot Owners having right to use the Private Street at each Owner's last known address, a written declaration of abandonment, and shall record such declaration in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. Such Owner much also have another legal source of access to their Property in order to abandon the rights and obligations under this Agreement. 1 Private Street Maintenance AMF Parcel 6C,Lots A&B Page 4 of 5 I 7. This Agreement, including the non-exclusive right-of-way and Private Street maintenance terms, shall run with the land, shall inure to the benefit of and shall be binding upon the parties hereto, their respective heirs,successors and assigns. IN WITNESS WHEREOF,the Declarant has caused this Declaration to be executed on its behalf by its duly authorized agent. SOUTHERN PROPERTY, LLC,a Virginia limited liability company BY: Frank T. Ballif,as Manager STATE OF VIRGINIA AT LARGE COUNTY OF ALBEMARLE,to-wit: The foregoing Declaration was acknowledged before me this day of , 2019, by Frank T. Ballif,as Manager on behalf of Southern Property, LLC, a Virginia limited liability company. Notary Public My commission expires: Reg.#: Private Street Maintenance AMF Parcel 6C,Lots A&B Page 5of5 C Brent Nelson From: Andy Herrick Sent: Saturday, February 16, 2019 10:02 AM To: Brent Nelson Subject: RE: SUB 2018-202,Advance Mills, Private Street Maintenance Agreement - Revised Brent, The revised Declaration does appear to address all my earlier comments. In the future, if a revised version addresses all prior comments (and does not suggest anything else new), I don't need to review it again. Thanks for checking. Andy Herrick Deputy County Attorney Notice:This email may contain attorney-client pnvileged inforniation,privileged work product,or other confidential information.It is intended only for the designated recipient.If you receive this message and are not a designated recipient you are requested to delete this message immediately and notify me that you have received this by mistake.Thank you. From: Brent Nelson Sent:Thursday, February 14, 2019 7:02 PM To:Andy Herrick<aherrick@albemarle.org> Subject:SUB 2018-202,Advance Mills, Private Street Maintenance Agreement-Revised Andy - You reviewed the original Private Street Maintenance Agreement for the above-noted subdivision application and provided your edits(attached).The applicant has provided a revised agreement in response (attached). I do not review a lot of these and the other planners were not sure if you needed to see this again.They asked me to find out what your policy is and let them know. Note: I looked at the revised file and it appears to address all your edits. Thanks, Brent Brent Nelson Senior Planner Albemarle County Department of Community Development Planning Services Division 434-296-5832 ext. 3438 bnelson@albemarle.org Information contained in this e-mail does not take the place of required zoning or planning approval of your application.To locate required applications for your proposal, contact ALBEMARLE COUNTY, COMMUNITY DEVELOPMENT . 1 From: Keith Lancaster<klancaster@hern-development.com> 0 Sent:Tuesday, February 05,2019 11:48 AM To:Brent Nelson<bnelson@albemarle.org> Cc: Bethany Velasquez(Bethany@roudabush.com)<Bethany@roudabush.com> Subject: FW:AMF-Priavte Drive Agreement Brent, Here is the revised agreement for SUB2018-202. Please let me know if you need anything else for approval. Best, Keith From: Lois Haverstrom Sent:Tuesday, February 05, 2019 11:46 AM To: Keith Lancaster Subject: AMF- Priavte Drive Agreement Advance Mills Farm BLA Plat: Attached is the private street maintenance agreement with the changes sent to us from the County for the BLA Plat. LOIS A. HAVERSTROM I General Counsel 0 434.245.0894 x109 Lhaverstrom@southern-development.com SOUTHERN DEVELOPMENT southern-development.com 2017—2018 Best of C-ville#1 Homebuilder 2010-2018 Daily Progress Readers'Choice Favorite Builder 2010-2017 Charlottesville Family Favorite Builder 2013-2016 EarthCraft Virginia's Builder of the Year Notice:This communication,including any attachments,may contain confidential information and is intended for the named addressee only. If you receive this email in error,you are not authorized to copy,save,forward or reproduce in any manner or form. You are requested to notify the sender by return email to:Lhaverstrom@southern—development.com or by calling 434-245-0894 x109. Thank you. 3 2 Prepared by:Lois A. Haverstrom(VSB#43712) Return to:170 South Pantops Drive, Charlottesville, VA, 22911 Albemarle County Tax Map:02000-00-00-006C0 Consideration$0.00 DECLARATION Private Street Maintenance Agreement This DECLARATION of PRIVATE STREET MAINTENANCE (hereinafter, the "Agreement") is made this day_of , 2019, by SOUTHERN PROPERTY, LLC, a Virginia limited liability company (hereinafter, the "Declarant"), whose address is 170 South Pantops Drive, Charlottesville, Virginia, 22911. WHEREAS, the Declarant is the owner of all that certain parcel of land, situated in Albemarle County, Virginia, on the west side of State Route 743, containing 5.649 acres, more or less, shown as Parcel 6C of Advance Mills Farm subdivision, on a plat by Rivanna Engineering & Surveying, PLC, dated June 11, 2001, last revised June 22, 2001, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 2051, Page 638 (the "Property"); BEING, a portion of the property conveyed to Southern Property, LLC by Deed from Charles Wm. Hurt and Shirley L. Fisher, as Trustees of the Advance Mills Farm Land Trust under Land Trust Agreement dated November 28, 2000, which deed is dated December 29, 2017, as recorded in the aforesaid Clerk's Office in Deed Book 5000, Page 158 .The Property is also known as Albemarle County Tax Map 02000-00-00-006C0;and WHEREAS,the Property was subdivided by the Declarant into two (2) Lots known as a portion of TMP 20-6C, Lot "A" which contains 2.825 acres, more or less, AND, Lot "B", which contains 2.825 acres, more or less, as shown and described in a plat by Roudabush, Gale & Associates, Inc., dated September 27, 2018, and last revised December 27, 2018, a copy of which is recorded immediately prior hereto and made part of this Agreement(hereinafter,the "Plat"); and WHEREAS, the "New 30' Private Access Easement—Calls to Center—"shown on the Plat will be a new 30 foot wide non-exclusive easement for ingress and egress (hereinafter,the "Private Street") for the use and benefit of Lots A and B created by and shown on the Plat. NOW, THEREFORE, for and in consideration of the premises and the undertakings contained herein, the Declarant hereby imposes upon the Property being Lots A and B shown on the Plat a shared Private Street to be maintained as follows: 1. MINIMUM STANDARD: The Private Street easement shall be 30 feet in width for the length, and in the location, as shown crossing Lot B on the Plat, to be constructed and maintained with blue stone gravel, culvert(s), drainage and ditches within said 30 feet, so as to be passable at most times for ordinary, non-commercial, use by passenger vehicles, excepting only temporary weather conditions from time to time, and maintained in perpetuity to substantially the same condition as when constructed and approved by the County. The travel-way within the 30 foot easement shall at all times be maintained so that it is safe and convenient for passenger automobiles and emergency vehicles at all times, excepting temporary severe weather conditions. Private Street Maintenance AMF Parcel 6C,Lots A&B Page 1of5 0 0 2. MAINTENANCE: For purposes of this instrument "maintenance" shall include the maintenance of the Private Street, and all related drainage facilities, culverts, drainpipes, ditches, and other private street improvements, as well as the prompt removal of snow,water, debris, or any other obstruction so as to keep the Private Street reasonably open for usage by all vehicles and emergency service vehicles. The term "to maintain," or any derivation of that verb, includes the maintenance, replacement, reconstruction and correction of defects or damage. 3. COST OF MAINTENANCE: A. No public agency, including the Virginia Department of Transportation and the County of Albemarle,Virginia,will be responsible for maintaining any improvement identified herein. } f B. At such time as the Private Street requires maintenance or repairs to maintain it in , passable condition as described above, the Owners of Lots A and B will pay the costs of the i repair as set forth in this Agreement. No Owner shall be obligated for expenses in excess of 1 those necessary to maintain the Private Street in a safe and passable condition as set forth. ,-iOnly the Owners who utilize the Private Street for access to a dwelling unit on their Parcel shall 1 share in this expense. Regardless of the number of parcels that have access to the Private Street 4 Easement,the cost of maintaining the Private Street under this Agreement shall be based on the number of Inhabited Dwellings served by the Private Street, and, the distance from State Route 743 (Advance Mills Road) to the private driveway entrance for such Inhabited Dwelling. For purposes of this Agreement, an Inhabited Dwelling, shall include all houses, or other structures housing a person(s) as permanent or part-time resident, whether occupied or rented by the s Owners of the properties,for any part of a calendar year. i 4 1 C. All the Owners shall share in said maintenance and repairs for that portion of the Private Street from State Route 743 to the beginning of the point at which that Owner stops using the Private Street, such as a junction with their personal driveway to access the respective dwelling on their Lot. The prorated cost for each such section of the Private Street shall be based on the number of Inhabited legal dwelling units served by the Private Street, it being agreed that this 1 correlates to wear and tear of the Private Street. D. It is agreed that the method for calculating the shared cost of maintenance will require the following conditions prior to the commencement of any such work and expense to be imposed on any Owner: I i. Any Owner may propose work for all or a portion of the road, so long as it is a section 4 used by that Owner to access their Inhabited Dwelling. However, work shall not commence unless and until a majority of the Owners who use said section agree in writing to the nature, scope and expense of said work. Owners may only vote on work relating to sections of the Private Street that they have responsibility to pay for. ii. A majority shall be calculated as a simple majority based upon the number of lots iserved by the Private Street, with each Lot being entitled to one (1) vote per Lot, j regardless of the number of Owners of any particular lot or the number of or dwelling units on any particular Lot. Multiple Owners that share one (1) vote shall exercise it as 1 they, among themselves, determine, but in no event shall more one (1)vote be cast per Private Street Maintenance AMF Parcel 6C,Lots A&B Page 2 of 5 I 1 -{ _ i+-r+�. .>sw...`wez_w.c ✓tav:r.-+Ivy-l4u'-m.?+we¢+v_.t'.�+.: -_t-�.x. - Lot. In the event of a tie the Parties must agree on maintenance by unanimous consent of the Parties. Parties may only vote on work relating to sections of the Private Street they are required to maintain under this Agreement. iii. A written proposal for any such repair work shall quote the expense based on sections, from the start of State Route 743 to each of the private driveways at Inhabited Dwellings in sequence from State Route 743, portioning out the cost of materials and labor for each such section, so that percentage of cost responsibility can be calculated. By way of example only: If the agreed cost to maintain the Private Street from State Route 743 to the first driveway on Lot B is $1,000.00, and assuming that there are two (2) Inhabited Dwellings served by the Private Street, one on each Lot A and Lot B, then the cost would be $500.00 to Lot A and $500.00 to Lot B for the first section of road maintenance. Further, if the cost from Lot B's driveway to the end of the 30' Private Street access easement is$2,000,then that cost would be the expense of Lot A only. iv. If there is more than one dwelling on any particular parcel, then the Owner of that parcel shall be included in the calculation and expense of road maintenance based on the number of Inhabited Dwellings, in keeping with, and agreeing to, the proportional concept of wear and tear tying occupancy to use. This does not increase the voting rights under this Agreement, which is determined by the number of Lots that may legally use the Private Street. The one (1) vote per Lot for Lots A and B shall not be expanded or diluted by future subdivision or boundary line adjustments. If an Owner further subdivides their parcel or sells a parcel then they share that one (1) voting right with any additional Owner of their parent parcel hereafter. v. If a majority of the Parties vote and agree that such repair work is desired, then all the Owners shall be obligated to pay their share as set forth herein. Voting shall be confirmed in writing, if any Party request written confirmation. Additional Owners who may elect to use said Private Street in the future are subject to this Agreement. vi. Any construction, clearing, farming, or other heavy truck or equipment activity on any Lot, with traffic on the Private Street which causes damage beyond that of normal residential use for ingress and egress, shall be promptly repaired at the sole cost and expense of the Owner who caused such work and damage be incurred. 4. WHEN TO MAINTAIN and FURTHER IMPROVEMENT: A. After the initial construction of the Private Street, any further construction, maintenance or repair shall be undertaken only with the mutual consent of all owners, provided that in the event that one of the owners determines that the Street is not safe and convenient for passenger automobiles and emergency vehicles at all times except in severe temporary weather conditions and such owner gives 30 days prior written notice to all other owners using the Street, such owner may commence or contract for maintenance or repair to bring the Street to the minimum standard and the charges therefore shall be the responsibility of all owners using the Street, as proportionally set out in 3 above. However, no notice shall be required to initiate work undertaken by any particular Owner at their own expense, such as debris removal, snow removal,grading or other work that they may be equipped to handle without the need for outside cost or expense,or that they have committed to pay for 100%percent on their own. Private Street Maintenance AMF Parcel 6C,Lots A&B Page 3 of 5 0 B. The terms"maintenance" and "repair" shall include, but not be limited to, repairing the road surface, adding stone, clearing obstructions, grading or scraping the road as necessary, cleaning and re-cutting ditches, and, trimming brush and branches along the roadside, as necessary,to allow for reasonable and safe access for standard passenger vehicles. ' C. There shall be no obligation on any of the Owners or Parties to upgrade the Private Street to a superior condition than the blue stone gravel Private Street described herein, unless such upgrade is by unanimous written consent of all the Lot Owners. However any Owner or 1 Party shall have the right at their sole and exclusive expense to upgrade said Private Street surface to a superior condition, such as asphalt. Thereafter, future maintenance and repair r standards shall be at the upgraded standard. i i I D. The Owner of Lot B grants to the other Owners a temporary construction easement of i an additional Five (5) feet on either side of the Private Street, for the purpose of construction, maintenance, repair,or, upgrade to the Private Street as provided for in this Agreement. 5. DEFAULTING OWNER(S): A. If any owner shall fail to pay his/her proportionate share of the costs of maintenance or 4 repair for which he/she is responsible, as provided hereinabove, any other owner not in default, or the person or corporation performing such maintenance, may after 30 days written notice to 1 the defaulting owner(s) bring an action against each defaulting parcel owner in a court of competent jurisdiction and/or may record in the Clerk's Office of the Circuit Court of Albemarle 1 County, a Notice of Lien against all of the said defaulting parcel owners to secure the payment of the assessment of a Lot failing to pay his/her proportional share of maintenance or repair. The amount due by any delinquent Owner shall bear interest at the maximum judgment rate provided by law from the date of completion of the maintenance; and the delinquent Owner shall be liable to pay all costs of collection, including reasonable attorney's fees. 3 B. There shall be a continuing lien upon each and every parcel having a right to use the Private Street to secure payment of charges for road maintenance and repairs but such liens shall at all times be subject to any first or second deeds of trust placed on the parcels until notice of such lien shall be recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. Thereafter, from the time of such recordation, the amount stated in such notice of lien, together with interest, costs and reasonable attorney's fees, shall become a lien prior to any deeds of trust recorded subsequent to the recording of such notice. 6. ABANDONMENT: If a right to use the Private Street is forever abandoned in writing by a Lot Owner, that party shall not be required to share in the cost of maintenance or repair of the Private Street under this Agreement, but they shall also abandon their right to use the Easement for ingress and 1 egress to their parcel(s). In order to abandon such right of use and the obligations under this Agreement, an Owner shall deliver by certified mail to all of the then record lot Owners having right to I use the Private Street at each Owner's last known address, a written declaration of abandonment, and shall record such declaration in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. Such Owner much also have another legal source of access to their Property in order to abandon the rights and obligations under this Agreement. Private Street Maintenance 1 AMF Parcel 6C,Lots A&B Page 4 of 5 1 I i 7. This Agreement, including the non-exclusive right-of-way and Private Street maintenance terms, shall run with the land, shall inure to the benefit of and shall be binding upon the parties hereto, their respective heirs,successors and assigns. IN WITNESS WHEREOF,the Declarant has caused this Declaration to be executed on its behalf by its duly authorized agent. SOUTHERN PROPERTY,LLC,a Virginia limited liability company BY: Frank T. Ballif,as Manager STATE OF VIRGINIA AT LARGE COUNTY OF ALBEMARLE,to-wit: The foregoing Declaration was acknowledged before me this day of , 2019, by Frank T. Ballif,as Manager on behalf of Southern Property, LLC, a Virginia limited liability company. Notary Public My commission expires: Reg.#: Private Street Maintenance AMF Parcel 6C,Lots A&B Page 5 of 5