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Home My WebLink AboutSUB202100038 Agreements 2021-06-09This document was prepared by: Gregory O. DeBacker Fortson, Bentley and Griffin, P.A. 2500 Daniell's Bridge Road Building 200, Suite 3A Athens, Georgia 30606 Parcel ID No.: 04500-00-00-093CO DECLARATION OF MAINTENANCE AND PUBLIC ACCESS (for Shared Use Path) THIS DECLARATION OF MAINTENANCE AND PUBLIC ACCESS (this "Declaration") is made as of this _ day of 2021, by W4 PROPERTIES CHARLOTTESVILLE, LLC, a Georgia limited liability company (the "Declarant"), to be indexed as Grantor and Grantee. WITNESS: WHEREAS, Declarant is the owner of that certain real property (hereinafter the "Property"), located in Albemarle County, Virginia, more particularly described as follows: ALL that certain lot or parcel of land shown as TM# 04500-00-00-093CO containing 1.051 acres, more or less, on that certain plat made by Hurt & Proffitt, dated April 30, 2019, entitled "Alta/NSPS Title Survey # 2100 Rio Hill Center, Property of Allen & Allen Properties — Charlottesville, LLC Albemarle County, Virginia," which plat was recorded in Albemarle County Circuit Court Clerk's Office in Deed Book 5201, page 138; BEING the same property conveyed to the Declarant herein by Deed of Allen & Allen Properties- Charlottesville, LLC, dated July 25, 2019, and recorded in the aforementioned Clerk's Office in Deed Book 5201, page 133; and WHEREAS, the Property is also shown and designated as "TM# 04500-00-00-093C" on that certain plat prepared by Carter Engineering Consultants, Inc., dated April 20, 2021, entitled "Easement Plat for W4 Development, 2100 Rio Hill Center, Charlottesville, Virginia," which such plat is attached hereto and recorded herewith as Exhibit A (the "Plat"); and WHEREAS, for the purposes of redeveloping the Property, Declarant shall construct a new shared use path (the "Shared Use Path"); and WHEREAS, the Shared Use Path is to be located in the area shown and designated as "New Permanent Access Easement" on the Plat; and 00987773.2/019956-000027 WHEREAS, Declarant desires to grant to the public the right of access for pedestrian and bicycle ingress and egress over the Shared Use Path; and WHEREAS, Declarant shall maintain the Shared Use Path unless and until it is dedicated by Declarant and accepted by the County, provided that at this time the Declarant has no obligation to dedicate and the County no obligation to accept. NOW, THEREFORE, for and in consideration of the mutual benefits accruing or to be accrued to the Declarant, its successors and assigns, and to any future owners of the Property, the Declarant hereby declares, establishes, and grants an access easement for the benefit of the public for ingress and egress for purposes of pedestrian and bicycle access over the Shared Use Path; and FURTHER, the Declarant hereby agrees to maintain the Shared Use Path as follows: MINIMUM STANDARD: The Shared Use Path shall be maintained with minimum standards as are shown on the Plat, and maintained in perpetuity to substantially the same condition it was in when approved by the County. The Shared Use Path shall be maintained so that it is safe and convenient for pedestrians and bicyclists at all times except in severe temporary weather conditions. For purposes of this instrument, "maintenance" includes the maintenance of the Shared Use Path, and all curbs, surface materials, curbs and gutters, drainage facilities, utilities, dams, and other related improvements, as applicable, and the prompt removal of snow, water, debris, or any other obstruction so as to keep the Shared Use Path reasonably open for usage by all pedestrians and bicyclists. The term "to maintain," or any derivation of that verb, includes the maintenance, replacement, reconstruction and correction of defects or damage. COST OF MAINTENANCE: Declarant shall be responsible for the cost of the maintenance of, and/or repair to the Shared Use Path. Any division of the Property shall require the reassessment of cost to be equally shared by each subdivided portion of the Property using the Shared Use Path. No public agency, including the Virginia Department of Transportation and the County of Albemarle, Virginia, will be responsible for maintaining any improvement identified herein. 00987773.2/019956-W27 2 WHEN TO MAINTAIN: After the initial construction of the Shared Use Path, any further construction, maintenance or repair shall, in the event the Property is further subdivided, be undertaken only with the mutual consent of the owners of each subdivided portion thereof, provided that in the event that one of the owners determines that the Shared Use Path is not safe and convenient for pedestrians and bicyclists at all times except in severe temporary weather conditions and such owner gives thirty (30) days prior written notice to all other owners using the Shared Use Path, such owner may commence or contract for maintenance or repair to bring the Shared Use Path to the minimum standard and the charges therefore shall be the responsibility of all owners using the Shared Use Path. DEFAULTING OWNER(S): In the event the Property is further subdivided, if any owner of any subdivided portion of the Property, fails to pay his/her/its proportionate share of the costs of maintenance or repair for which he/she/it is responsible, as provided hereinabove, any other owner not in default, or the person or entity performing such maintenance, may after thirty (30) days written notice to the defaulting parcel owner(s) bring an action of law 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, Virginia, a Notice of Lien against all of the said defaulting parcel owners to secure the payment of the assessment of a parcel failing to pay his/her/its 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. INCORPORATION OF ALBEMARLE COUNTY CODE. The foregoing maintenance standards are included herein and are operative if and to the extent required by Albemarle County Code S 14-317 and/or other applicable law. FURTHER, each and all of the covenants, obligations, restrictions, conditions and provisions contained in this Declaration (whether affirmative or negative in nature) shall be construed as covenants running with the land intended to be benefited or burdened thereby and shall bind and inure to the benefit of Declarant, its respective successors and assigns, and every individual, partnership, association, corporation, limited liability company or other entity having any interest in the Property at any time. The term "Declarant" as used herein, includes all such assignees and their respective heirs, successors and assigns only during the period such party holds title to the Property; 00987773.2/019956-000027 FURTHER, solely to the extent that this Declaration establishes public access on the Shared Use Path, this Declaration is also for the express benefit of the County of Albemarle, Virginia (the "County") and the Board of Supervisors of the County (the `Board"), who are hereby third parry beneficiaries of this Declaration for purposes of enforcing such public access. In furtherance thereof, the County and the Board have the right and authority to maintain an action to enforce this access easement for the benefit of the public for pedestrian and bicycle ingress and egress over the Shared Use Path as provided in this Declaration as though they were parties hereto; FURTHER, Declarant hereby reserves any and all rights and privileges incident to the ownership of the Property, including, without limitation, any portion of the Property above, on or under which the "New Permanent Access Easement" is located and where the Shared Use Path is installed, for any lawful use, provided such rights and privileges are not inconsistent with the rights, privileges and easements herein granted; FURTHER, This Declaration may be amended, modified, or terminated only by an instrument in writing signed both by all of the then owners of the Property and by the County; and FURTHER, This Declaration does not grant vehicular access or parking rights and is limited to pedestrian and bicycle access. [SIGNATURE PAGE FOLLOWS] 00987773.2M19956-W27 4 IN WITNESS WHEREOF, Declarant has caused this Declaration to be duly executed on its behalf by its duly authorized agent as of the date first set forth above. W4 PROPERTIES CHARLOTTESVILLE, LLC, a Georgia limited liability company Alex L. Williams, Manager COMMONWEALTH OF VIRGINIA CITY/COUNTY OF , to -wit: The foregoing instrument was acknowledged before me this _ day of 2021 by Alex L. Williams, as Manager of W4 Properties Charlottesville, LLC, on behalf of such company. My commission expires: Notary Public Notary Registration No.: 00987773.2/019956-000027 Exhibit A the Plat (attached) 00987773.2/019956-000027 6