HomeMy WebLinkAboutSDP200500107 Agreements Minor Amendment 2005-10-25 Uct, 17. 1UU7 4: 11FM SUUIIIKKUNEK FLU 434-110-1/19 No. i1 F. 1
Scott I Kroner PLC
Attorneys at Law
W.Stephen Scott
Robert J.Kroner 418 East Water Street
Neal L.Walters
C.Lamar Careen P.O.Box 2737
Charlottesville,Virginia 22902
-
Collisora F.Royer Phone(434)296-2161
Facsimile(434)220-2719
Corban A.plug •
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Oct. 25. 2005 4: 22PM SCUD " 'I(RONER PLC 434-220-2719 No, 3152 PP. 21 of I
Bob Kroner
From: Robert J, Kroner[rkroner d@scottkroner.com]
Sent: Thursday, September 08, 2005 2:18 PM
To: Don Long
Subject: Tymark Holdings
Attachments: Road maintenance.pdf; Sight easement.pdf; Crozet Commons Cesko Road Maintenance
Agreement final.doc; Crozet Commons Cesko Sight Easement.doc
Scott I Kroner PLC
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Don,
Welcome back. I hope you had a great, and restful, vacation.
As I mentioned in my voice mail message, Marketa was out of town all of last week attending a medical
conference in Cincinatti. Unfortunately, I did not learn that until after she had departed.
George and Marketa just left my office and have signed the Access Easement/Road Maintenance Agreement and
the Sight Easement. Copies are attached. I am also attaching electronic versions so that you can compare the
signed versions with your last version and see the changes.
Assuming these documents are acceptable to you and your client, I will have them delivered to you upon your
acknowledgement that your client will be responsible for(a) removing the bushes that are within the sight
easement, and any necessary grading, and (b) payment of our fee for this transaction. The Leisures will provide
any new landscaping along the front of their property.
Marketa would like to be present when the bushes to be removed are marked for removal. Apparently some work
was performed on their lot either late last week or over the weekend, including removal of two bushes and the
placement of additional sand and gravel, and she wants to be sure everyone is clear about the exact location of
the propery line and the sight easement. Perhaps David Turner could help shed some light on what was done on
the Leisures' property last week?
Thanks, Don. I hope we're close to bringing this one to a conclusion.
Bob
Robert J. Kroner
Scott Kroner PLC
418 East Water Street
P.O. Box 2737
Charlottesville, VA 22902
(434) 296-2161
(434)220-2719 (fax)
www.scottkroner.com
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9/8/2005
Uct. n. 2UUh 4: 23FM SCUIIIKKUNEK FLC 434-220-2/19 No. 3152 F. 3
Document Prepared by:
Fell,Pettit&WdlAams PLC
P.O.Box 2057
Charlottesville,VA 22902
Tax Map Parcels; 56A2-01-00-03100,056A2-01-00-03200&056A2.01-00-03300
•
ACCESS EASEMENT AND
PRIVATE ROAD MAINTENANCE AGREEMENT
THIS ACCESS EASEMENT AND PRIVATE ROAD MAINTENANCE
AGREEMENT (the "Agreement")is made this day of August,2005,by and among
TYMARK HOLDINGS LLC, a Virginia limited liability company("Tyrnark") and CESKO,
LLC, a Virginia limited liability company ("Cesko").
WI'TNESSETH:
WHEREAS, Tymark is the owner of certain real property located on State Route 240 in
the County of Albemarle, Virginia ("Crozet Commons") which is more particularly shown and
described on a plat prepared by Roger W. Ray & Assoc., Inc., dated June 29, 2005 and revised
August 11, 2005 entitled "Composite Map" (the "Easement Plat"), which Easement Plat is
attached hereto and recorded herewith and which is the same property conveyed to Tymark by
deed of James W.Newman, Jr., Trustee for Clason Land Trust u/a Dated June 25, 1987 and Zion
Crossroads Industrial Park, LLC dated February 11, 2005 and recorded in the Clerk's Office of
the Circuit Court of Albemarle County(the "Clerk's Office") in Deed Book 2927,page 605; and
WHEREAS, Cesko is the owner of certain real property located on State Route 240 in the
County of Albemarle, Virginia(the "Cesko Property") which is more particularly shown and
described on a plat prepared by Roudabush, Gale & Assoc., Inc., dated November 6, 1989 and
recorded in the Clerk's Office in Deed Book 1449, page 331 and which is the same property
conveyed to Cesko by deed of George and Marketa Leisure, dated , 2005 and
recorded in the Clerk's Office in Deed Book , page ; and
WHEREAS,the County of Albemarle, Virginia("Albemarle County") requires Tymark
to provide an access easement over Crozet Commons for the benefit of the Cesko Property for
ingress to and egress from the Cesko Property and State Route 240; and
WHEREAS, Tymark and Cesko desire to provide for maintenance of the road within
such access easement; and
WHEREAS, Tyrnark and Cesko desire to bind themselves and their heirs, successors in
title and assigns (each an"Owner" and collectively the "Owners")to certain covenants,
conditions,restrictions and easements in order to accomplish the foregoing purposes;
NOW, THEREFORE, for and in consideration of the premises contained herein and other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by the
Owners, Tymark does hereby GRANT, CONVEY and ESTABLISH an easement on the
following terms:
1. A nonexclusive perpetual easement of right-of-way twenty-four(24) feet in width
and described on the Easement Plat as "New 24' Access Easement" for the purpose of ingress to
and egress from the Cesko Property and State Route 240 (the "Access Easement"). Cesko's
right to use the Access Easement shall be subject to the terms of this Agreement. The Access
UcT. LD. LUU7 4: 23VM JUUIIIKKUNEK NLC 434-220-2/19 No. 3152 P. 4
Easement runs with,the land and is for the benefit of the Cesko Property.
2. Tymark, at its own expense, shall construct a road within that portion of the
Access Easement the centerline of which begins at a point along the State Route 240 Right of
Way and proceeds N07°21'59"E 21.11 feet then NO3°27124"E 229.92 feet then S80°37'19" E
35.19 feet to a point on the boundary line between the Cesko Property and Crozet Commons (the
"Private Road"). Tymark shall construct curb and gutter at such boundary line allowing direct
access from the Cesko Property to the Private Road. The Private Road shall be constructed to
current applicable Virginia Department of Transportation specifications and standards as shown
on the Site Plan prepared by Muncaster Engineering dated November 16, 2004 and last revised
June 24, 2005 and approved by Albemarle County (the "Site Plan").
3. Tymark shall maintain the Private Road in a state of good repair and passable at
all times for ordinary use by passenger automobiles. Maintenance of the Private Road shall
include maintenance of the road, curb, gutter, drainage facilities or other road improvements,
procurement of insurance and the removal of snow, water, debris, and any other obstruction to
keep the road reasonably open for vehicular traffic, including emergency service vehicles
(collectively "Maintenance and Repair"). Tymark shall have the authority to employ individuals
or companies to perform Maintain and Repair.
4. If Tymark fails to maintain the Private Road to the standard set forth in Paragraph
3 above then Cesko shall be entitled to give Tymark written notice of its failure to maintain the
Private Road in accordance with this Agreement and provide a specific list of Maintenance and
Repair to be performed ("Repair Notice"). If Tymark does not perform the requested
Maintenance and Repair or contract for such Maintenance and Repair within thirty(30) days of
the Repair Notice, then thirty (30) days after said written notice Cesko may perform the
Maintenance and Repair specified in said Repair Notice and Tymark shall pay the full amount of
the Maintenance Expense for such Maintenance and Repair. Provided, however, that if Tymark
objects to the Repair Notice in writing then either Owner shall be entitled to submit the
disagreement to arbitration as provided in Paragraph 7.
5. If either Crozet Commons or the Cesko Property (individually a"Parcel" and
collectively the "Parcels") is further subdivided in the future, each new parcel shall have the right
to use the Access Easement as provided herein and shall be subject to the terms of this
Agreement. If, as a result of the subdivision of a Parcel, the entrance of the Private Road onto
State Route 240 must be improved to comply with any requirements of the Virginia Department
of Transportation or Albemarle County, the Owner of the Parcel being subdivided shall be solely
responsible for all costs of improving the entrance,
6. If any Owner by his or her actions (or the actions of said Owners' family,
contractors, subcontractors, movers, tenants, customers or invitees)causes damage to any portion
of the Private Road, other than ordinary wear and tear, such Owner shall individually bear the
entire cost to repair said damage and restore said portion of the Private Road to its prior existing
condition before the damage.
7. If Tymark objects to a Repair Notice as provided in Paragraph 4, then the dispute
regarding the need for Maintenance and Repair shall be submitted to an impartial arbitrator
familiar with road construction and maintenance. The Owners shall jointly select the arbitrator
within fifteen (15) days of the receipt of the objection by the non-objecting Owner. If the
Owners cannot agree on an arbitrator within that time period then each party shall name an
2
Oct. 25. 2005 4: 24PM SCOTTIKRONER PLC 434-220-2719 No. 3152 P. 5
arbitrator, and the two arbitrators shall select a third arbitrator. The arbitrator(s) shall personally
review the condition of the Private Road and take such additional evidence as is necessary to
render a decision regarding the need for Maintenance and Repair. The arbitrator(s) shall render
his, her or their decision within thirty (30) days of appointment; if three persons have been
designated as arbitrators, the decision of a majority of the arbitrators shall govern. All costs for
this arbitration(excluding the Maintenance Expense) including any arbitrator's fees and
reasonable attorney's fees of the party or parties which substantially prevail shall be paid by the
party or parties not substantially prevailing as determined by the arbitrator. If the arbitration
costs are not paid within thirty(30) days of the arbitrator's decision then the substantially
prevailing parties may collect these costs.as provided for in Paragraph 8 of this Agreement.
8. Except for the issues subject to arbitration as provided in Paragraph 7,
enforcement of the provisions of this Agreement shall be by proceedings at law or in equity
against any person or persons violating or attempting to violate said provisions, either to restrain
violation or to recover damages, or both. Such action may be brought by any of the Owners.
The party or parties substantially prevailing in such action shall be entitled to recover their
reasonable attomey's fees incurred in such action. Failure to enforce any covenant or restriction
contained herein shall, in no event,be deemed to be a waiver of the right to do so hereafter.
9. The terms, covenants and conditions set forth in this Agreement shall run with the
Parcels, and shall be binding on the heirs, personal representatives, successors in title and or
assigns of the Owners in perpetuity.
10. All written notices required or permitted by this Agreement may be delivered in
person, or sent by certified mail, return receipt requested (postage prepaid) to such party at the
addresses for the Owners set forth in the records of the Finance Office of Albemarle County on
the date of the Notice, or at such other address as a party may designate by notice given in
accordance with the terms of this Paragraph. Such notice shall be deemed to be received or
given when actually delivered when delivered in person, or three (3)business days after mailing
by certified mail, return receipt requested, pursuant to the terms hereof.
[SIGNATURE PAGE TO FOLLOW]
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Oct, 25. 2005 4: 24PM SCOTTIKRONER PLC 434-220-2719 No. 3152 P. 6
[SIGNATURE PAGE TO ACCESS EASEMENT
AND PRIVATE ROAD MAINTENANCE AGREEMENT]
WITNESS the following signatures and seals:
TYMARK HOLDINGS LLC,
a Virginia limited liability company
By: (SEAL)
Jayne J. Rathburn,Manager
CESKO, LLC, a Virginia limited liability company
By: �� (SEAL)
Marketa Leisure, Manager
STATE OF VIRGINIA
CITY/COUNTY OF , to-wit:
The foregoing Private Road Maintenance Agreement was acknowledged before me by
Jayne J. Rathburn, Manager, on behalf of Tymark Holdings LLC, on this day of
September, 2005.
My commission expires:
(SEAL) Notary Public
STATE OF VIRGINIA
CITY/eatINTY OF CfM-R..077- a , to-wit:
The foregoing Private Road Maintenance Agreement was ac owledged before me by
Marketa Leisure,Manager, on behalf of Cesko, LLC, on this ay of September,
2005.
My commission expires: 3, ®p 6
-57 (-
(SEAL) Notary Pub c
4
Oct. 25. 2005 4: 24PM SCOTTIKRONER PLC 434-220-2719 No. 3152 P. 7
Document Prepared by:
Fell,Pettit&Williams,PLC
P.O.Box 2057
Charlottesville,VA 22902
Tax Map Parcels: 56A2-0 1-00-03 1 00,056A2-01-00-03200&056A2-01-00-03300
SIGHT EASEMENT
THIS DEED OF SIGHT EASEMENT, made and entered into this day
of September, 2005, by and between TXMARK HOLDINGS LLC, a Virginia limited
liability company ("Tymark"), and CESKO,LLC, a Virginia limited liability company,
collectively the Grantors, and THE COMMONWEALTH OF VIRGINIA, Grantee,
whose address is
WITNESSETH:
WHEREAS, the Commonwealth.of Virginia requires improvements to the sight
distance on Route 240, Albemarle County, Virginia, to allow for the proposed
commercial entrances to the property hereinafter described by acquiring a sight easement
on Grantors' real estate as shown by the attached plats of survey of Roger Ray & Assoc.,
Inc., dated June 27, 2005 ("Tymark Plat") and June 3, 2005 ("Cesko Plat"), copies of
which are attached hereto and made a part hereof(together the "Sight Easement Plats");
and
WHEREAS, Tyrnark is the owner of the following described real estate lying and
being situate in Albemarle County, Virginia, on the north side of and adjoining Virginia
State Route 240 (the "Tyznark Property"):
All that certain tract or parcel of land situated in the Village of
Crozet in Albemarle County, Virginia, on the north side of Route
240, containing 1.37 acres, more or less, more particularly shown
and described on the plat of R.O. Snow, Inc., dated June 17, 1988,
and recorded in the Clerk's Office of the Circuit Court of
Albemarle County, Virginia, in Deed Book 1012, page 582.
AND
All that certain tract or parcel of land situated in the Village of
Crozet in Albemarle County, Virginia, described and bounded as
follows: beginning in the center of Jefferson Highway corner to
Mabel Thompson, Trustee, with her line northward about 465 feet
to line of J.T. O'Neill, thence eastward with J.T. O'Neill line about.
44 feet to line of Lacy Washington,thence with his line about 465
feet to center of the Jefferson Highway, thence westward along the
center of this highway about 50 feet to the beginning supposed to
contain about one-fourth acre, more or less; LESS AND EXCEPT
Oct. 25. 2005 4: 25PM SCOTTIVRONER PLC 434-220-2719 No. 3152 P. 8
all that certain strip or parcel of land conveyed to the
Commonwealth of Virginia by instrument recorded in Deed Book
297, page 558.
BEING the same property conveyed to Tymark Holdings LLC by
deed of James W,Newman, Jr., Trustee for Clason Land Trust
U/A Dated June 25, 1987, and Zion Crossroads Industrial Park,
LLC dated February 11, 2005, and recorded in the aforesaid
Clerk's Office in Deed Book 2927, page 605,
WHEREAS; Cesko is the owner of the following described real estate lying and
being situate in Albemarle County, Virginia, on the north side of and adjoining Virginia
State Route 240 (the "Leisure Property"):
All that certain lot of land situated in the County of Albemarle,
Virginia, in Crozet, on the north side of State Route 240,
containing .906 acres, more or less, shown as Tax Map Parcel
56A-(2)-1-33, on a plat by Roudabush, Gale &Assoc,, Inc., dated
November 6, 1989, and recorded in the Clerk's Office of the
Circuit Court of Albemarle County, Virginia,in Deed Book 1078,
page 331.
BEING the same property conveyed to Cesko, LLC, by deed of
George and Marketa Leisure dated , 2005, and
recorded in the aforesaid Clerk's Office in Deed Book , page
NOW, THEREFORE, in consideration of the premises and the sum of One Dollar
($1.00) cash in hand paid, the receipt of which is hereby acknowledged by the Grantors,
the Grantors do hereby GRANT and CONVEY to the Commonwealth of Virginia the
sight distance easements shown and described on each Sight Easement Plat as "New
Easement For 390' Sight Distance" ("Sight Easement Areas") for the purpose of
establishing and maintaining an unobstructed line of sight to Virginia State Route 240
from each"Centerline Proposed Commercial Entrance" as shown on the Sight Easement
Plats at an elevation of thirty(30) inches above ground level in conformance with the
applicable Virginia Department of Transportation standards. Within the Sight Easement
Areas no structures or plantings shall be placed which would obstruct the line of sight to
Virginia State Route 240 from the "Proposed Commercial Entrances" at an elevation of
thirty (30) inches above ground level. Any plantings within the Sight Easement Areas
shall only be low growing ground cover or dwarf varieties of plants,which shall not
exceed twenty-four(24) inches in height.
The Grantors reserve unto themselves, their heirs, assigns and successors in
interest, the right to place on their respective property such fences, shrubbery, vegetation,
2
Oct. 25. 2005 4: 25PM SCOTTIVRONER PLC 434-220-2719 No, 3152 P. 9
structures or other facilities consistent with the terms of this Sight Easement and which •
do not materially obstruct the line of sight to Virginia State Route 240 through the Sight
Easement Area,
The Commonwealth of Virginia shall have the right to trim, cut and remove trees,
shrubbery, fences, structures and other obstructions and facilities in the Sight Easement
Areas, which exceed a height of thirty(30) inches.
WITNESS the following signatures and seals:
TYMARK HOLDINGS LLC,
a Virginia limited liability company
By: (SEAL)
Jayne J. Rathburn, Manager
CESKO, LLC, a Virginia limited liability company
BY EAL)
Marketa Leisure, Manager
3
Oct. 25. 2005 4: 25PM SCOTTIVRONER PLC 434-220-2719 No. 3152 P. 10
STATE OF VIRGINIA
CITY/COUNTY OF , to-wit:
The foregoing Sight Easement was acknowledged before me by Jayne J.
Rathburn, Manager, on behalf of Tymark Holdings LLC on this day of September,
2005.
My commission expires:
(SEAL) Notary Public
STATE OF VIRGINIA
CITY/COUNTY OF o l,Qit .&66, , to-wit:
The foregoing Sight Easement was acknowledged before me by Marketa Leisure,
Manager, on behalf of Cesko, LLC, on this$ day of September, 2005.
My commission expires: �(AL 3/ z o 6
a'
(SEAL) Notary Public
4