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Home My WebLink AboutWPO202100017 Agreement - SWM Maintenance 2022-01-12&qW6,% RECORD COVER SHEET Commonwealth of Virginia VA. CODE §§ 17.1-223,-227.1,-249 FORM A — COVER SHEET CONTENT Instrument Date: ... 12 / 21 / 2 021 ..................................... InstrumentType: Aq............................................................. Number of Parcels:......?....... Number of Pages: ....... 9....... [ ] City NJ County .ALBEMARLE............................................. CIRCUIT COURT Tax Exempt? VIRGINIA/FEDERAL CODE SECTION pCJ .. Grantor: 17...1 .................266 ........................................................................ 17 [)(J Grantee: .......:.............1-266 ......................................................................... Business/Name .l IVY PROPER LLC, X Grantor: ..................................................................................... ................. Grantor:..................................................................................... 1 COUNTY OF , G X Grantee: ....................................ALBEMARLE.....................VIR...................INIA ........ ............. I... Grantee: ................................ ._-_-_-_-_-_- Grantee Address Name: COUNTY OF ALBEMARLE, VIRGINIA ........................................................................................................ Address: .. CE O...901 .......M......INTIR.....................R........AD ........................................................................... City: ..........A..LOT..TES..VI..L...L...E......................................................... State:......V . Consideration: $O.:.00........................ Existing Debt: So;oo................. PRIOR INSTRUMENT UNDER § 58.1-803(D): RECORDED IN ALBEMARLE COUNTY, VA JON R. ZUG FILED Jan 12, 2022 AT 12:22 pm BOOK START PAGE END PAGE INST # 202200000497 TOTAL NUM PAGES 11 MEB (Area Above Reserved For Deed Stamp Only) Zip Code:_z29o2 ............................... Actual Value/Assumcd:.s0... 0o Original Principal: .......................... Fair Markct Value lncrcase: $0.00 ........................................... Original BoolcNo.:........................................ Original Page No.:........................................ Original Instrument No.:............................................ Prior Recording At: [ ] City N County ALBEMARLe Percentage In This Jurisdiction: ... 1o0e Book Number: 546a................ Page Number: ..1..'... ......... ...... Instrument Number:.......................................... Parcel Identification Number/Tax Map Number: _0582- ...00-00-01900................................................................................................................... Short Property I.vY PROPER WP02021-00017 Current Property Address:.N/A City:.CHARLOTTESVILLE.................................... State:.....VA...... Zip Code:................................................ Instrument Prepared By: ALBEMAR.LE COUNTY CDD Recording Paid By: VA CODE 1.7 1-266 Recording Returned To: CARLA HARRIS .................................................. Address: . ALBEMARLE COUNTY COMMUNITY DEV, 401 MCINTIRE RD - NORTH WING .................................................................................. City: CHARLOTTESVILLE VA ...................................... State:................ FORM CC-1570(MASTER, PAGE ONE OF TWO )IOA9 0 Copyright 2014 Office of the Executive Secretary, Supreme Court of V irginia. All rights resetvcd. Zip Code: ... ?.9oz Cover Sheet A 202200000497.002 VIRGINIA LAND RECORD COVER SHEET Commonwealth of Virginia VA. CODE §§ 17.1-223,-227.1. -249 FORM C—ADDITIONAL PARCELS Instrument Date: .................... 12/21/2021 ................................ Instrument Type: AG .................................................................... Number of Parcels:............. Number of Pages: ....... 2 CitCI ALBEMARLE y UC1 County ............................................................. CIRCUIT COURT Parcels Identification/Tax Map Prior Recording At: City N County ALBEMARLE ............................. Percentage In This Jurisdiction: ..... 100% Book Number: ... s45a Page Number: .143 Instrument Number: (Area Above Reserved For Deed Stamp Only) OSSA Parcel Identification Number (PIN)/Tax Map Number: ...................................2-00-00-02000............................... Short Property Description: .. I . V...Y ........PR...OP.....E...R .................................................................................................... WP02021-00017 .............................................................................................................................. CurrentProperty Address: .N/A....................................................................................................................... City: CHARL0TTESVI LLE ...................................................... State:......VA..... Zip Code:.22902 Prior Recording At: [ I City [ ] County ........................................... Book Number: ............................ Page Number: Parcel Identification Number/Tax Map Number: Short Property Description: ............................................ Current Property Address: City: Percentage In This Jurisdiction: Instrument Number: State: . ..... .. ... . Zip Code: FORMCC-1570(MASTER, PAGE TWO of Two )10t19 Cover SheetC 0 Copyright 2014 Office of the Executive Secretary, Supreme Court of Virginia. All righu reserved. 20220Q000497.003 This document was prepared by: Albemarle County Attorney County of Albemarle 401 McIntire Road Charlottesville, Virginia 22902 Parcel ID Nos. 058A2-00-00-01400 and 058A2-00-00-02000 This agreement is exempt from Clerk's fees under Virginia Code S 17.1-266 AGREEMENT TO MAINTAIN STORMWATER MANAGEMENT FACILITIES AND OTHER TECHNIQUES THIS AGREEMENT is entered into by and between IVY PROPER LLC, a Virginia limited liability company, hereinafter called the "Owner," and the COUNTY OF ALBEMARLE, VIRGINIA, a political subdivision of the Commonwealth of Virginia, hereinafter called the "County." RECITALS R-1. The Owner is the fee simple owner of certain real property described as Albemarle County Parcel ID Nos. 058A2-00-00-01400 and 058A2-00-00-02000 as recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 5468. page 143, hereinafter called the "Property"; and R-2. The Owner is proceeding to build on and develop the Property; and R-3. The Property is not within the County s Municipal Separate Storm Sewer System (hereinafter, "MS4") jurisdictional area; and R-4. The Site Plan/Subdivision Plat identified as Iyy Proper, was approved and, in conjunction therewith, a Stormwater Management Plan, "identified as II Proper — WPO-2021-00017, hereinafter (as maybe amended from lime to time) called the "Plan,"" which is expressly made a part hereof, as approved or to be approved by the County, and which provides for the detention and water quality treatment of stormwater within the confines of the Property; and R-5. The Plan and the land disturbing activity related thereto are subject to the Virginia Stormwater Management Act (Virginia Code § 62.1-44.15:24 et seq.), as implemented in part by Chapter 17, Water Protection, of the Albemarle County Code; and R-6.9VAC25-870-112 and Albemarle County Code § 17-415 require the Owner and the County to enter into this agreement in order to ensure the long-term maintenance of the permanent kV=T-T1 47/1►iA➢71 202200000497.004 stormwater management facilities and/or other techniques required to serve the Property and, for those facilities within the County's MS4 jurisdictional area, 9VAC25-890-40 imposes additional requirements, and the County implements 9VAC25-870-112 and 9VAC25-890-40 through Albemarle County Code § 17-415 and this Agreement; and R-7. For those facilities within the County's MS4 jurisdictional area, this Agreement also addresses, in part, the County's obligations under Minimum Control Measure Number 5 (post - construction stormwater management) in the Albemarle County 5-Year MS4 General Permit and Program Plan; and R-8. Albemarle County Code § 17-415 requires that permanent on -site stormwater management facilities and/or other techniques, as shown on the Plan, including all pipes and channels built to convey stormwater to and from the facilities, all structures, berms, inlet and outlet structures, pond areas, filtration media, and forested and open space areas (which are considered to be a nonstructural technique to meet stormwater management requirements), provided to control the quantity and quality of the stormwater, access roads, and any other improvement that may affect the proper functioning of the Facilities (hereinafter, "stormwater management facilities and other techniques" are referred to individually as a "Facility' and collectively the "Facilities' be constructed and adequately maintained by the Owner in perpetuity. In consideration of the foregoing premises, the mutual covenants contained herein, and the following terms and conditions, the parties hereto agree as follows: 1. Obligation of the Owner to construct the Facilities. The Owner shall construct and protect the Facilities that are required to be constructed, and shall do so in accordance with the Virginia Stormwater Management Act plans and specifications identified in the Plan. 2. Obligation of the Owner to maintain the Facilities. The Owner shall maintain the Facilities in good working condition for so long as the Facilities exist, in a manner that meets or exceeds the maintenance standards provided herein, subject to the following: A. "Good working condition" defined. For the purposes of this Agreement, a Facility is in "good working condition" when it performs its design function in accordance with the plans and specifications identified in the Plan, including all conditions imposed in conjunction with approval of the Plan, and complies with all applicable standards, as determined by the Albemarle County Engineer (hereinafter, the "County Engineer"). B. "Maintain and maintenance" defined. For the purposes of this Agreement, "maintain" and "maintenance" include, but are not limited to maintaining, repairing, replacing, Version: 10/112021 NOWT 81118i8zMA81111 reconstructing, preserving, and restoring the Facilities or any part thereof necessary to comply with the plans and specifications identified in the Plan. C. Maintenance schedule. The Owner shall maintain the Facilities in compliance with the maintenance schedule in the approved Plans as required under Albemarle County Code § 17- 403(A)(5). D. Professional engineer may be required to direct work The County Engineer may require that specific maintenance work be performed under the direction of a professional engineer. 3. Inspections and the Inspection Report by the Owner. The Owner shall have the Facilities inspected to ensure that the Facilities are in good working condition, subject to the following: A. Who may inspect the Facilities. The Facilities shall be inspected by the Owner or upon written demand by the County Engineer by a person who: (1) is licensed as a professional engineer, architect, landscape architect, or land surveyor pursuant to Virginia Code § 54.1-400 et seq.; (2) works under the direction and oversight of the licensed professional engineer, architect, landscape architect, or land surveyor referenced in subsection (A)(1); or (3) who holds an appropriate certificate of competence from the State Water Control Board. B. What must be inspected. The inspections shall be conducted according to the requirements of 9VAC25-870, et seq. or as that section is hereafter amended. C. When inspections shall be conducted. The Facilities shall be inspected as specified in the approved Plans or by the County Engineer. D. What documents must be maintained. The inspection shall be documented on a form provided by the County Engineer and shall be completed to the satisfaction of the County Engineer (hereinafter, the "Inspection ReporeD. At a minimum, the Inspection Report shall provide, as applicable, the date of the inspection, the name of the inspector, a description of the condition of all pipes and channels built to convey stormwater to and from the facilities, all structures, berms, inlet and outlet structures, pond areas, filtration media, forested and open space, vegetation provided to control the quantity and quality of the stomiwater, access roads, and any other improvement that may affect the proper functioning of the Facilities, a list of all deficiencies causing the Facilities not to be in good working condition, including all control measures not operating effectively and all control measures that are inadequate, a list of required maintenance work to be performed so that the Facilities are restored to good working condition, and the date by which the maintenance work will be performed. Version: 10/11/2021 202200000497.006 E. To whom and when an Inspection Report must be submitted. The Owner shall submit the Inspection Report and any other requested inspected documentation to the Director, Albemarle County Department of Facilities and Environmental Services, 401 McIntire Road, Charlottesville, Virginia 22902 or a successor department, office and address delineated by the County to the Owner. The Owner shall provide the Inspection Report to the Department within thirty (30) days after completion of the inspection. F. Section 3 satisfied if County conducts inspection in any year. The Owner's obligation to have the Facilities inspected and to submit an Inspection Report under Section 3 shall be deemed to be satisfied in any inspection period in which the County conducts an inspection under Section 4 and as provided in Albemarle County Code § 17-811. G. Inspection Period defined. For the purposes of this Agreement, inspection period means the one-year period beginning and ending on the anniversary of the date of this Agreement first hereimbove written. 4. Permission to the County to inspect the Facilities. The Owner hereby grants permission to the County, including its authorized agents and employees, to enter upon the Property and to inspect the Facilities whenever the County deems an inspection to be necessary, subject to the following: A. Purposes for Coun_yt inspection. The County may inspect the Facilities for the purpose of determining the condition of the Facilities including, but not limited to, determining whether the Facilities are in good working condition, investigating any deficiencies reported in the Inspection Report, responding to citizen complaints about the Facilities, and inspecting or observing any maintenance of the Facilities. B. Prior notice to the Owner not required. The County shall not be required to provide prior notice to the Owner to enter the Property to conduct the inspection. C. Inspection findiWj and demand for maintenance. The County shall provide the Owner with a copy of the findings of its inspection of the Facilities. If the inspection concludes that maintenance of any of the Facilities is required, the County also shall provide the Owner with a demand that the Owner maintain the Facilities and the date by which the maintenance work must be completed. 5. The Owner's response to the Inspection. the Inspection Report or the Count) L demand for maintenance. The Owner shall comply with the following: A. Corrective action. If the inspection identifies the need for a corrective action, it shall be Version: 10/11/2021 202200000497.007 completed as follows: (i) if the Albemarle County Engineer determines, in their sole discretion, that failure to implement the corrective action creates an imminent or potentially imminent threat to the public health or safety, the Owner shall complete corrective action as soon as practicable, but no later than seven (7) days after discovery; (ii) if an inspection identifies a Facility that is not operating effectively, but is not an imminent or potentially imminent threat to the public health or safety, the Owner shall complete corrective action as soon as practicable, but no later than sixty (60) days after discovery or a longer period allowed in writing by the County Engineer; (iii) if an inspection identifies an existing Facility that needs to be modified or if an additional control measure is necessary, implementation shall be completed prior to the next anticipated measurable storm event; if implementation before the next anticipated measurable storm event is impractical, then it shall be implemented no later than sixty (60) days after discovery or a longer period allowed in writing by the County Engineer. The term "control measure" means any best management practice or stormwater facility, or other method used to minimize the discharge of pollutants to State waters, or otherwise restrict or alter the hydraulics of stormwater flow and discharge. B. Maintenance. If the Inspection Report under Section 3 or the inspection conducted by the County under Section 4 identifies Facility deficiencies, the Owner shall promptly complete the maintenance work by the date specified in the Inspection Report or as demanded by the County. When the maintenance work is completed, the person performing or directing the work shall certify to the County that the Facilities are in good working condition. 6. Right of the County to enter the Property to maintain the Facilities. If the Owner fails to maintain the Facilities in good working condition as required by Section 2 or fails to complete timely maintenance work as required by Section 5, the County, including its authorized agents and employees, may enter upon the Property and take whatever steps necessary to bring the Facilities into good working condition and to otherwise correct all deficiencies identified in the Inspection Report under Section 3 or the inspection conducted by the County under Section 4, subject to the following: A. No right to erect permanent structures: exceptions. The County's right to take "whatever steps necessary" shall not be construed to allow the County to erect any structure of a permanent nature on the Property unless: (1) the structure is required to ensure that the Facilities perform their design functions; or (2) it is a structure to house equipment to monitor the Facilities and any fencing related thereto. B. County not obligated to maintain the Facilities. It is expressly understood and Version: 10/112021 202200000497.008 agreed that the County is under no obligation to repair or otherwise maintain the Facilities, and in no event shall this Agreement be construed to impose any such obligation on the County. 7. Right of the County to charge the Owner for its costs of maintenance, obligation of the Owner to reimburse the County. If the County performs any maintenance work on the Facilities under Section 6, it will charge to the Owner all of the County's costs including, but not limited to, those costs for labor, equipment, supplies, materials, and project or contract administration. The Owner shall reimburse the County for its costs, subject to the following: A. Written demand. The County shall send to the Owner a written demand for payment of all of its costs. The demand may be sent by first class mail to the address to which County real property tax bills are mailed or to another address provided by the Owner to the County. B. Timely _pavTent. The Owner shall reimburse the County for the costs identified in the County's written demand within thirty (30) days after the date of the written demand. C. Collection by County. The County may collect any amount not timely reimbursed by the Owner in any manner authorized by law and may place a lien against the Property in the amount of the non -reimbursed costs, plus interest at the rate authorized by law. S. Obligation of the Owner to indemnify and hold harmless the County. The following shall apply to this Agreement: A. No County_ liability. This Agreement imposes no liability of any kind whatsoever on the County, including its agents, officers and employees. B. Obligation of the Owner to indemnify and hold harmless. The Owner shall indemnify and hold harmless the County, including its agents, officers and employees, for any and all damages, accidents, casualties, occurrences or claims which might arise or be asserted against the County, including its agents, officers and employees, resulting from the failure of the Facilities to perform their design function or to otherwise operate properly; any repairs, maintenance, construction, or any other acts performed by the County or the Owner, including their respective agents, officers and employees, related to the Facilities, regardless of how those acts were performed except if the County's acts are the product of willful misconduct, or the Facilities' existence. C. Notice of and defense of actions. If a daim is asserted against the County, including its agents, officers and employees, based upon any of the indemnities in subsection (B), the County shall promptly notify the Owner of the claim. The Owner shall defend, at its expense, any lawsuit or other action arising therefrom. If, as a result of a claim, any judgment is allowed against the County, its agents, officers and employees, or any of them, the Owner shall pay all damages, costs, expenses version: 10/11/2021 202209000497.009 and fees associated with the judgment. 9. References to County departments and officers, successors. Any reference in this Agreement to a County department or office includes its successor department or office as determined by the County. 10. Covenant running with the land. This Agreement shall be recorded by the County in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, shall constitute a covenant running with the land, and shall be binding on the Owner, its administrators, executors, assigns, heirs and any other successors in interests, including any homeowners' association. 11. Date of this Agreement. This Agreement shall be deemed to have been entered into by the parties and shall be effective on and after the date it is signed by the Albemarle County Executive. WITNESS the following signatures: OWNER: IVY PROPER LLC, a Virginia limited liability company BY: 5 Guys Without Fries LLC, Its anager Ian Wre Manager COMMONWEALTH O V RGINIA CITY/COUNTY OF U=L4L, .-,^�t1 The foregoingum instrument was acknowledged before me this � O�k day of D , D1 by Ian Wren, Manager of 5 Guys Without Fries, LL� anager of Ivy Proper LLC, a Virginia limited liability company. rvuur ruuuc My Commission Expires: �1` �// Registration Number: J 7N4ycoMMISSI E S. UN01 ARY PUBLIC EALTH OF VIRGINIA N EXPIRES MAR.31.2023 SSION A 2rMa5 SIGNATURES CONTINUE ON THE FOLLOWING PAGE Version: 10/112021 202200000497.010 OWNER: IVY PROPER LLC, a Virginia limited liability company BY: 5 Guys Without Fries LLC Its Manager Alan James Kincel Manager COMMONWEALTH O V RGINIA^'n_ CITY/COUNTY OF 24 � The foregoing instrument was acknowledged before me this .3 ( day of 1. by Alan James Kincel, Manager of 5 Guys Without FriesTLLC, Manager of Ivy Proper LL.C, a Virginia limited liability company. My Comnussion Expires.3. 5/_ 1b 3 Registration Number: �7J66757 .... - - Jpn�ioCnRS�FUusGc H COMMONWEALTH OF VIROINIA MY COM CIOMIM SS ON N 273685 31 2023 SIGNATURES CONTINUE ON THE FOLLOWING PAGE version: 10/112021 20220.0000497.011 Executive COMMONWEALTH OF VIRGINIA CITY{ee+iii ' OF CIF/Lk0r-4F— *J%LLF VIRGINIA >-4— The foregoing instrument was acknowledged before me this j t— day of �4nyU ^1 2O2X by Jeffrey B. Richardson, County Executive, on behalf of the Board of Supervisors Albemarle County, Virginia. L. Not Public My Cotnmission Expires: ^ . 3 �,Da3 CHERYL L. SKEEN Registration Number: 1 i 531 to a REG NOOTARY PUBLIC B 11IC 53762 COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES OCTOBER31,2023 Approved a to Form: County Attorney Date INSTRUMENT 9 202200000497 RECORDED ALBEMARLE CO CIRCUIT COURT CLERICS OFFICE Jan 12, 207.2 AT 12:22 Pm JON R. ZUG, CLERK by MEB Version: 10/11/2021