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HomeMy WebLinkAboutZMA200400017 Ownership Documents 2006-12-13This document prepared by: Williams Mullen, P.C. 321 East Main Street, Suite 400 Charlottesville, Virginia 22902 -3200 Albemarle County Tax Map Parcels: 076PO- 01- 00- 00100,076P0- 02 -00- 00200, 07600- 00 -00- 04600,07600- 00- 00- 046C2, & 07600- 00- 00 -046C3 DEED OF EASEMENT AND AGREEMENT THIS DEED OF EASEMENT AND AGREEMENT (this "Agreement ") is made as of this day of November, 2006 by and between SHERWOOD MANOR HOMEOWNERS' ASSOCIATION, a Virginia non -stock corporation having an address of t% GF1w4 1 --Ra"d Q5 �� 130 "Association ") (the Grantor for indexing purposes), and WOODLANDS OF CHA �T WNM LLC, a Virginia limited liability company having an address of 1550 Timothy Road, Suite 201, Athens, Georgia 30606 ( "Woodlands ") (the Grantee for indexing purposes). WITNESSETH: WHEREAS, the Association is the owner of two parcels of land located in Albemarle County, Virginia and identified on the current tax maps of Albemarle County as parcels 076P0 01 -00 -00100 and 076PO -02 -00 -00200 (collectively, the "Association Property"); and WHEREAS, Woodlands is the owner of three parcels of land located in Albemarle County, Virginia and identified on the current tax maps of Albemarle County as parcels 07600- 00- 00- 046CO3 07600- 00- 00 -046C2 and 07600- 00- 00 -046C3 (collectively, the "Woodlands Property "); and WHEREAS, Woodlands is preparing to develop the Woodlands Property for residential dwellings; and WHEREAS, the Association has agreed to grant Woodlands certain easements for construction, grading and drainage on certain areas of the Association Property; and WHEREAS, Woodlands has agreed to grant the Association a pedestrian easement on certain areas of the Woodlands Property. AGREEMENT . NOW THEREFORE, for and in consideration of the above premises, TEN DOLLARS ($10.00) cash in hand paid and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereto agree as follows: The Association hereby grants and conveys the following described easements: a. TEMPORARY CONSTRUCTION AND GRADING EASEMENT. The ASSOCIATION hereby grants and conveys to WOODLANDS and its employees, agents, contractors, successors and assigns a temporary, exclusive construction and grading easement and right of access to and from and passage on, through, over, under and across the Association Property in the areas shown as "Var. Width Temp. Const. and Grading Easement 1.416 acres ", "Var. Width Temp. Const. and Grading Easement 0.352 acre ", "Var. Width Temp. Const. and Grading Easement 0.208 acre ", "10' Temp. Const. Easement 0.013 acre" and "10' Temp. Const. Easement 0.050 acre ", (collectively, the "Construction Easement Areas ") on the plat of JenningStephenson entitled "Plat Showing Various Easements Across the Property of Sherwood Manor Homeowners Association" dated ' 2006 (the "Plat ") which Plat is attached hereto as Exhibit A and incorporated herein by reference (the "Construction Easement "). is The Construction Easement is for Woodlands' use in connection with its construction and development activities on the Woodlands Property. Specifically, the portions of the Construction Easement Areas shown on the Plat as "Var. Width Temp. Const. and Grading Easement 1.416 acres ", "Var. Width Temp. Const. and Grading Easement 0.352 acre" and "Var. Width Temp. Const. and Grading Easement 0.208 acre ", are for the grading, regrading, sloping, resloping, contouring or recontouring of those portions of the Construction Easement Areas as necessary for the aforesaid construction and development activities. ii. Woodlands and its employees, agents, contractors, successors and assigns shall have full and free use of the Construction Easement Areas for the purposes named herein and shall have all rights and privileges reasonably necessary for the exercise of this Construction Easement. iii. Woodlands shall, at its sole cost and expense, be responsible for any maintenance required to the Construction Easement Areas as a result of the work performed by or at the direction of Woodlands and shall otherwise maintain the Construction Easement Areas during the term of the Construction Easement in a good state of repair and in a safe and orderly condition. iv. Upon completion of the work within the Construction Easement Areas, Woodlands, at its sole expense, shall (a) remove all of its construction and associated debris generated by or at the direction of Woodlands during the construction period, and (b) restore the Construction Easement Areas (including, without limitation, any portion of the Association's playground /recreation area that may lie within the boundary of the Construction Easement Areas) (i) to the condition shown on the landscape plan to be approved by Albemarle 2 County as part of the final site plan approval, or (ii) otherwise to as close as its original condition as is reasonably possible under the terms of this Agreement, as applicable. The Association acknowledges and agrees that notwithstanding the terms of this paragraph to the contrary, that the Albemarle County Service Authority ( "ACSA ") will prohibit the placement of any trees, shrubs, fences, buildings, overhangs or other improvements or obstructions within the portion of the Association Property shown on Exhibit A as "20' Utility Easement 0.181 acre" and thus that such areas will only be restored as expressly permitted in writing by the ACSA. v. The term of this Construction Easement and any rights hereunder for temporary construction, grading, excavating, and all other permitted activities shall commence on the date of this Agreement and shall terminate without any further action by the parties hereto, and shall be of no further force or effect, upon the later to occur of: (i) August 15, 2008, or (ii) such date as Woodlands completes its work on the Association Property and adjoining areas of the Association Property required in connection with the construction and development of the improvements on the Woodlands Property and final acceptance of such work by the County of Albemarle, Virginia; however, in no event later than August 15, 2011, provided that the parties may mutually agree to extend this date in the event of extenuating circumstances. Notwithstanding the terms of the prior sentence to the contrary, Woodlands shall use reasonable efforts to restore any portion of the Association's playground /recreation area that is damaged by the construction within sixty (60) days after the completion of construction. Upon the request of either parry, the Association and Woodlands covenant and agree to enter into and, as appropriate, record in the Albemarle County Circuit Court Clerk's Office, a certificate and acknowledgement of termination in a form and substance reasonably satisfactory to each party acknowledging and confirming the termination of the Construction Easement. vi. Woodlands shall indemnify and hold the Association harmless from any and all liability, loss or damages, including reasonable attorneys' fees, arising out of or resulting from or in any way connected with the use of the Construction Easement Areas by Woodlands, its agents, servants, employees and/or contractors. Notwithstanding anything herein to the contrary, Woodlands shall not indemnify or hold the Association harmless from any liability, loss or damages arising out of or resulting from or in any way connected with the negligence or willful misconduct of the Association or its agents, servants, employees and/or contractors. b. STORM DRAINAGE EASMENT. The ASSOCIATION hereby grants and conveys unto WOODLANDS and its employees, agents, contractors, successors and assigns, a permanent, exclusive easement for storm drainage in the areas shown on the Plat as "Var. Width Drainage Easement 0.250 acre" and "Var. Width Drainage Easement 0.007 acre" (collectively the "Drainage Easement Areas "), on the following terms and conditions (the "Drainage Easement "): i. The Drainage Easement shall be for the purpose of constructing, operating, maintaining, adding to, or replacing present or future storm drainage pipes, necessary structures, and appurtenances necessary for the collection of storm water and its transmission through and across the Drainage Easement Areas. The Drainage Easement Area shown as "Var. Width Drainage Easement 0.250 acre" on the Plat will be constructed as follows: (a) Roughly the first seventy -five feet of the Drainage Easement Area, approximately shown as "Section One" on the Plat attached hereto as Exhibit A, will be graded and lined with twelve foot wide rip rap in a similar form and appearance as shown on Exhibit B. The channel will have a flat bottom approximately five feet wide. The depth of the channel will be no shallower than one foot. (b) The portion of the Drainage Easement Area approximately shown as "Section Two' on Exhibit A ( "Section Two) will be reinforced with a stone wall lining the channel constructed similarly as shown on the photo attached as Exhibit C. The stone wall will be approximately two feet tall, provide a bed width of approximately three feet and will have a foundation of approximately one foot in depth. A cross section of the composition of the wall is attached as Exhibit D. At the end of Section Two where the existing Drainage Easement Area makes a ninety (90) degree turn, the Drainage Easement Area will be straightened and the abandoned flow area will be filled in. (c) The portion of the Drainage Easement Area approximately shown as "Section Three" on Exhibit A ( "Section Three "), will be lined with a shallow covering of rip rap in a similar form and appearance as shown on Exhibit B. A blanket of brown rip rap, in a similar form as shown on Exhibit B, approximately eight feet by twelve feet in size will be placed in the transition portion between Section Two and Section Three. Brown rip rap will also be placed around the concrete headwall at the opening to the 30" culvert at the bottom of Section Three. Debris along the channel bottom of Section Three that may cause unusual flow conditions will also be removed. ii. All pipes, manholes, inlet structures, and appurtenant facilities which are installed in the Drainage Easement Areas shall be and remain the property of Woodlands, its successors and assigns, and Woodlands shall maintain all such structures and facilities in good condition. iii. Woodlands and its agents shall have full and free use of the Drainage Easement Areas for the purposes named, and shall have all rights and privileges reasonably necessary to the utilization of the Drainage Easement Areas and the right to use adjoining land of the Grantor where necessary, provided, however, that its right to use adjoining land shall be exercised only during periods of actual construction or maintenance, and further, this right shall not be construed to allow Woodlands to erect any building or structure of a permanent nature on such adjoining land. iv. Woodlands shall have the right to trim, cut, and remove trees, shrubbery, fences, structures, or other obstructions or facilities in the Drainage Easement Areas and the Construction Easement Areas around the Drainage Easement Areas that Woodlands reasonably determines will interfere with the proper and efficient construction, operation, and maintenance of the Drainage Easement Areas; provided, however, that subject to the terms and conditions of this Agreement, Woodlands shall at its own expense restore, as nearly as possible, the premises to their original condition, such restoration including the backfilling of trenches, the replacement of fences, and the reseeding or resodding of lawns or other areas, but not the replacement of structures, trees, or other facilities located within the Drainage Easement Areas. v. The Association shall not erect any buildings, structures, fences or other improvements within the Drainage Easement Areas or otherwise interfere with Woodlands' use and enjoyment ofthe Drainage Easement. vi. Woodlands shall indemnify and hold the Association and the Association's members harmless from any and all liability, loss or damages, including reasonable attorneys' fees, arising out of or resulting from or in any way connected with the use by Woodlands of the Drainage Easement Areas for the express purposes stated in Paragraph I (b)(i) and specifically excluding all other uses of the Drainage Easement Areas by the Association and its members, agents, employees, invitees, guests and assigns, for which the Association shall remain liable, by the Association or its members, agents or employees. Notwithstanding anything herein to the contrary, Woodlands shall not indemnify or hold the Association harmless from any liability, loss or damages arising out of or resulting from or in any way connected with the negligence or willful misconduct of the Association or its members, agents, servants, employees and/or contractors. 2. PEDESTRIAN EASEMENT. WOODLANDS hereby grants and conveys unto the ASSOCIATION and its members a pedestrian easement on, through and over the portion of the Woodlands Property shown as "Existing Vegetation Protection Zones (Typ. of Hatch)" on Exhibit E attached hereto and incorporated herein by reference, which area is a rectangular area approximately fifteen (15) feet by two hundred eighty (280) feet along the border of the Woodlands Property and the Association Property behind units 152, 154, 156, 158 and 160 of Sherwood Manor (the "Pedestrian Easement Area "), on the following terms and conditions (the "Pedestrian Easement"): -- -- a. The Pedestrian Easement is for the periodic use of the Association members for pedestrian use only, and only in those areas of the Pedestrian Easement Area that are established walking paths. Bicycles, motorized vehicles, and any and all non - pedestrian uses are strictly prohibited, and the Association members who use the Pedestrian Easement shall not create any new paths, nor expand, enlarge or extend any existing paths. b. The right of pedestrian access includes the right of the Association members to walk their dogs within the Pedestrian Easement Area, provided that such members immediately remove all waste material resulting therefrom. c. Littering within the Pedestrian Easement Area is strictly prohibited. d. The Association members who use the Pedestrian Easement shall do so only in a manner that will not disturb the Woodlands or the residents of the Woodlands Property, including, without limitation, with regard to noise and light. e. The Association members who use the Pedestrian Easement shall not intentionally or negligently destroy, damage or remove any trees or other vegetation from the Pedestrian Easement Area. f In the event any of the provisions of this Pedestrian Easement are materially breached by the Association or any of its members, Woodlands shall notify the Association in writing of the violation after which the Association has ten (10) days to remedy the violation. If the violation still exists at the end of the ten (10) day period, Woodlands shall have the right to immediately terminate the Pedestrian Easement. g. The Association shall indemnify and hold Woodlands harmless from any and all liability, loss or damages, including reasonable attorneys' fees, arising out of or resulting from or in any way connected with the use of the Pedestrian Easement Area by the Association or its members, agents or employees. Notwithstanding anything herein to the contrary, the Association shall not indemnify or hold Woodlands harmless from any liability, loss or damages arising out of or resulting from or in any way connected with the negligence or willful misconduct of Woodlands or its agents, servants, employees and/or contractors. 3. In the event that the Association defaults in any of its obligations stated in paragraph 1 herein, then in addition to any other remedy available to it in law or at equity, the Woodlands shall be entitled to pursue an action for specific performance to ensure the timely performance by the Association of such obligations. 4. The Association and Woodlands agree to do and take such further and additional acts and actions and to execute, acknowledge, and deliver such further and additional documents, instruments and writing which are not specifically referred to herein as may be necessary, required or appropriate for the purpose of fully effectuating the provisions of this Agreement. 5. All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally or when received if sent by registered or certified mail to the parties at the following addresses (or such other address as a Party may specify by written notice): Woodlands: The Woodlands of Charlottesville, LLC 1550 Timothy Road, Suite 201 Athens, Georgia 30606 Telephone: (706) 357 -9100 Facsimile: (706) 357 -9101 ' With a copy to (which alone shall not serve as notice): Williams Mullen c/o Valerie W. Long 321 E. Main Street, Suite 400 Charlottesville, Virginia 22902 Telephone: (434) 951 -5709 Facsimile: (434) 817 -0977 Association: GA -( �.eP�rr mil t�rl:,a��5 ✓.Il.�i Vi�,v„tii Z2Srs3 Telephone: u3-1 Facsimile: 6. The Association hereby represents and warrants to Woodlands and its successors and assigns that the Association has taken all required actions and obtained all required consents and authorizations under and in accordance with the operative governing instruments of the Association (whether recorded or otherwise) as necessary to authorize the Association to enter into this Agreement to bind the Association and its members to the terms hereof, and to incur and perform the Association's obligations set forth herein. In addition, the individual signing this Agreement on behalf of the Association is duly authorized and empowered to execute and deliver this Agreement. 7. Woodlands hereby represents and warrants to the Association that it is duly authorized to enter into this Agreement and to bind Woodlands to the terms hereof and to incur and perform the Woodlands' obligations set forth herein. In addition, the individual signing this Agreement on behalf of Woodlands is duly authorized and empowered to execute and deliver this Agreement. 8. Each party agrees to do and take such further and additional reasonable acts and actions, and execute, acknowledge and deliver such further and additional reasonable documents, instruments and writings which are not specifically referred to herein as may be necessary, required or appropriate in fully effectuating and carrying out the provisions and facilitating the purposes of this Easement Agreement. 9. Every provision of this Agreement is hereby declared to be independent of and separate from every other provision. If any such provision shall be held to be invalid or unenforceable, that holding shall be without effect upon the validity or enforceability of any other provisions of this Agreement. Every provision hereby shall be interpreted, to the extent, possible, in such a way to make it valid, binding and enforceable. 10. Except as may be expressly noted to the contrary herein, all provisions of this Agreement shall run with the land and be binding upon and inure to the benefit of the parties hereto and their respective successors, agents, assigns, personal representatives, lessees, permittees and licensees. 11. This Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. 12. This Agreement shall be governed by the laws of the Commonwealth of Virginia. 13. This Agreement shall not be modified or amended except by an instrument duly executed by the Association and Woodlands. WITNESS the following signatures and seals: [SIGNATURES TO FOLLOW ON NEXT PAGE] 8 SHERWOOD MANOR HOMEOWNERS' ASSOCIATION, a Virginia non -stock corporation By: S c Printed Name: Title: _P1­_!5 WOODLANDS OF CHARLOTTESVILLE, LLC, a Virginia limited liability company By: David ulkey, Member COMMONWEALTH OF VIRGINIA COUNTY/(CITY)OF ch., c -, ; k-c TO -WIT: The foregoing instrument was acknowledged before me this s day of te3?kM , 2006, by the Pc&< .eA+ of Sherwood Manor Homeowners' Association, a Virginia non -stock corporation, on behalf of the corporation. My commission expires: _ Notary Prublic STATE OF ep( o, COUNTY/ CITY OFJ b TO -WIT: The foregoing instrument was acknowledged before me this23�h day of Nooembe r, 2006, by David R. Mulkey, Member of Woodlands of Charlottesville, LLC, a Virginia limited liability company, on behalf of the company. My commission expires: _ 2 2 ary Publi szz t�Wf tT, d?lfl 1 �U.It� I�iu!ll�Ns dui' 9