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2010-29 ORDINANCE NO. 2010-29 AN ORDINANCE APPROVING AND GRANTING CERTAIN EASEMENTS CONTAINED WITHIN A DEED OF EASEMENT(S) BY AND AMONG BAYSHIRE, L.C.; VIRGINIA TITLE HOLDING CORPORATION, TRUSTEE; THE BOARD OF SUPERVISORS OF LOUDOUN COUNTY, VIRGINIA; AND THE CITY OF FAIRFAX, VIRGINIA, PARTIALLY PERTAINING TO CERTAIN REAL PROPERTY OWNED BY THE CITY OF FAIRFAX, VIRGINIA, AND LOCATED IN LOUDOUN COUNTY, VIRGINIA, AND MORE PARTICULARLY IDENTIFIED AS LOUDOUN COUNTY TAX IDENTIFICATION NUMBER 196 -20- 0496 -000, AND AUTHORIZING THE CITY MANAGER TO FINALIZE AND EXECUTE THE SAME. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAIRFAX, VIRGINIA (hereinafter referred to as "CITY ") that various easements, in a form substantially of the form of the Deed of Easement(s) attached hereto as Exhibit "A ", are hereby approved and granted, over, upon and through certain real property owned by the City in Loudoun County, Virginia, and identified as Loudoun County Tax Identification Number 196 -20- 0496 -000. BE IT FURTHER ORDAINED BY THE CITY COUNCIL OF THE CITY, that the City Manager is hereby authorized and directed to execute, with the concurrence of the City Attorney, the necessary easements document(s). This ordinance shall become effective as provided by law. INTRODUCED: November 30, 2010 PUBLIC HEARING: December 14, 2010 ENACTED: December 14, 2010 � \ 1 .au� ►� �► , _a�, ayor ATTEST: li , 7A'vrif City Clerk The vote on the motion to approve was recorded as follows: Votes Councilwoman Cross Aye Councilman Drummond Aye Councilman Greenfield Aye Councilman Meyer Aye Councilman Schmidt Aye Councilman Stombres Absent RECORDATION COVER SHEET TYPE OF INSTRUMENT: DEED OF EASEMENT DATE OF INSTRUMENT: , 2010 NAMES OF GRANTORS: 1) BAYSHIRE, L.C. 2) VIRGINIA TITLE HOLDING CORPORATION, TRUSTEE 3) CITY OF FAIRFAX, VIRGINIA NAMES OF GRANTEES: 1) BOARD OF SUPERVISORS OF LOUDOUN COUNTY, VIRGINIA 2) CITY OF FAIRFAX, VIRGINIA COUNTY WHERE PROPERTY LOCATED: LOUDOUN COUNTY ELECTION DISTRICT WHERE PROPERTY LOCATED: DULLES DISTRICT BRIEF DESCRIPTION OF PROPERTY: TWO (2) PARCELS OF LAND NEAR BEAVERDAM CREEK RESERVOIR INSTRUMENT WHERE PROPERTIES ACQUIRED: 1) INSTRUMENT NO. 20040715- 0073165 (BAYSHIRE) 2) DEED BOOK 510, PAGE 427 (CITY OF FAIRFAX) PLAT ATTACHED: PLAT NO. RPB- 986 -LC PLAT PREPARED BY: DEWBERRY & DAVIS LLC PARCEL IDENTIFICATION NOS.: 1) 195 -19- 3084 -000 (BAYSHIRE) 2) 196 -20- 0496 -000 (CITY OF FAIRFAX) COUNTY FILE NO.: ESMT 2010 - PREPARED BY AND RETURN TO: CULBERT & SCHMITT, PLLC 30C Catoctin Circle, S.E. Leesburg, Virginia 20175 (14457.009) DCC BOX 99 y 3 THIS DEED OF EASEMENT (the "Deed ") is made this day of , 2010, by and between BAYSHIRE, L.C., a Virginia limited liability company (hereinafter referred to as "Bayshire "), as a grantor; VIRGINIA TITLE HOLDING CORPORATION, a Virginia corporation, as TRUSTEE (hereinafter referred to as "Trustee "), as grantee; SUSQUEHANNA BANK (hereinafter referred to as "Beneficiary "); the CITY OF FAIRFAX, VIRGINIA, a body corporate and politic (hereinafter referred to as "Fairfax City "), as both grantor and grantee; the BOARD OF SUPERVISORS OF LOUDOUN COUNTY, VIRGINIA, a body corporate and politic (hereinafter referred to as "County "), as grantee. RECITALS: A. Bayshire is the owner and proprietor of certain real property (the "Bayshire Property "), identified by Loudoun County Tax Parcel Identification Number 195 -19- 3084 -000, as shown on plat number RPB- 986 -LC, dated August 6, 2010, and revised through , 2010, entitled "Plat Showing Creation Of Various Easements On The Lands Of Bayshire, L.C. And City Of Fairfax, Virginia," and prepared by Dewberry & Davis LLC, of Leesburg, Virginia, certified land surveyors (the "Plat ") which Plat is attached hereto. B. The Bayshire Property is situated in Loudoun County, Virginia; Bayshire having acquired the Bayshire Property by deed recorded as Instrument Number 20040715- 0073165, among the land records of Loudoun County, Virginia (the "Land Records "). C. Fairfax City is the owner and proprietor of certain real property (the "City Property "), identified by Loudoun County Tax Parcel Identification Number 196 -20- 0496 -000, as shown on the Plat. D. The City Property is situated in Loudoun County, Virginia; Fairfax City having acquired the City Property by deed recorded in Deed Book 510 at Page 427, among the Land Records. E. It is the desire and intent of Bayshire to grant and convey a private access easement to Fairfax City and an emergency ingress and egress easement to the County, in accordance with this Deed and the Plat. F. It is the desire and intent of Fairfax City to grant and convey unto the County a storm drainage easement and a temporary grading easement in the locations as shown on the Plat and as hereinafter provided. G. The Bayshire Property is subject to the lien of a certain Deed of Trust dated July 14, 2004, and recorded as Instrument No. 20040715- 0073166, of the aforesaid land records (the "Deed of Trust "), wherein the Property was conveyed unto the Trustee, in trust, to secure a certain indebtedness, as more specifically set forth therein. H. The City Property is not subject to the lien of any deed of trust. INGRESS/EGRESS EASEMENT FOR FAIRFAX CITY NOW THEREFORE WITNESSETH, that in consideration of the sum of One Dollar ($1.00), cash in hand paid, receipt of which is hereby acknowledged, Bayshire grants and conveys unto Fairfax City, a non - exclusive easement for ingress and egress over and across the Bayshire Property for the use and benefit of Fairfax City, its successors, assigns, employees, agents and invitees, as more particularly bounded and described on the Plat. The foregoing ingress /egress easement is subject to the following terms and conditions: A. The responsibility for the construction, repair and maintenance of the travelways within the easement shall be borne by Fairfax City. B. The private access road within the easement shall be constructed and maintained only as a gravel roadway sufficient for vehicular traffic, with maintenance to include, without limitation, grading, scraping, ditching, snow removal and spreading of new gravel, as necessary, in the sole discretion of the owners of the Lots served by said easement. C. As required by Section 1245.05(3)(b) of the Loudoun County Land Subdivision and Development Ordinance, the parties hereby state and acknowledge that the access road is private and its maintenance, including snow removal, is NOT a public responsibility. No such road shall be eligible for acceptance into the State secondary system for maintenance until such time as it is constructed and otherwise complies with all requirements of the Virginia Department of Transportation ( "VDOT ") for the addition of subdivision roads current at the time of such request. Any costs required to cause such road to become eligible for addition to the State system shall be provided from funds other than those administered by the VDOT and by Loudoun County. COUNTY EASEMENTS THIS DEED FURTHER WITNESSETH, that in consideration of the premises and the sum of One Dollar ($1.00), cash in hand paid, receipt of which is hereby acknowledged, Bayshire and Fairfax City, as applicable, grant and convey unto the County, its successors and assigns, the easements as hereafter set forth in the respective locations shown on the Plat as follows: A. Emergency Ingress and Egress Easement. An easement for ingress and egress, for construction and maintenance of utilities, for County and other emergency vehicles, and for the purpose of performing any governmental functions which the County may find necessary or desirable to perform, including but not limited to police and fire protection, over and across the ingress and egress easement herein granted to Fairfax City, as shown on the Plat. Notwithstanding the foregoing, in the event such ingress and egress easement is hereafter adjusted, relocated, reconfigured, or otherwise altered, this easement shall automatically be adjusted so that no portion of the Bayshire Property which ceases to be subject to the ingress and egress easement shall be subject to this easement. B. Temporary Grading and Construction Easement. A temporary easement for the purpose of the necessary grading and construction through and across the Property as more particularly bounded and described on the Plat. This temporary grading and construction easement shall become null and void at such time as grading and construction is complete. C. Storm Drain Easement. An easement for the purpose of constructing, operating, maintaining, adding to, altering or replacing present or future stormwater management facilities, storm drainage lines, storm sewer lines, or other drainage structures, including building connection lines, plus all necessary inlet structures, manholes, and appurtenances for the collection of storm waters and its transmission through and across the said property of Owner, said easement being more particularly bounded and described on the Plat. The foregoing easements are subject to the following conditions where applicable: 1. All sewers, manholes, inlet structures, and appurtenant facilities which are installed in the easements shall be and remain the property of the County, its successors and assigns. 2. The County and its agents shall have full and free use of said easements for the purposes named, and shall have all rights and privileges reasonably necessary to the exercise of the easements including the right of access to and from the easements and right to use adjoining land where necessary; provided, however, that this 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 the County to erect any building or structure of a permanent nature on such adjoining land. 3. The County shall have the right to trim, cut, and remove trees, shrubbery, fences, structures, or other obstructions or facilities in or near the easements being conveyed, deemed by it to interfere with the proper and efficient construction, operation, and maintenance of said easements; provided, however, that the County, at its own expense, shall restore, as nearly as possible, the premises to their original condition. Such restoration shall include the backfilling of trenches, the replacement of fences and shrubbery, the reseeding or resodding of lawns or pasture areas, and the replacement of structures and other facilities located outside the easements, but shall not include the replacement of structures, trees, or other facilities located within the easements. 4. Owner reserves the right to construct and maintain roadways over said easements to the extent not prohibited or restricted by ordinance and to make any use of the easements herein granted which may not be inconsistent with the rights herein conveyed, or interfere with the use of said easements by the County for the purposes named; provided, however, that Owner shall not erect any building or other structure, excepting a fence, on the easements without obtaining the prior written approval of the County. 5. The owner of fee title to any property on which an easement is hereby granted for storm drainage purposes shall be responsible for maintenance of such storm drainage easement, unless such responsibility shall have been given to its successors or to an owner's association under the provisions of any declaration of covenants, conditions, and restrictions heretofore or hereafter recorded; it being intended that the responsibility of maintenance shall not be a personal obligation but shall run with the land, such owner maintenance to include items such as mowing and weeding, removal of litter and other debris, and care and maintenance of trees and other vegetation; provided, however, that owner shall not alter, disturb nor make any changes to the elevation or contours of any open channel, ditch, swale, berm or other drainage facility within the easement after the completion of the construction of the facilities in accordance with the County- approved plans. Notwithstanding the foregoing, the County shall maintain the physical infrastructure of storm drainage facilities contained within the easement, including pipes and other structures, inlets and catch basins, and shall remove debris and other obstructions from open channels. TRUSTEE'S SUBORDINATION THIS DEED FURTHER WITNESSETH, that in consideration of the premises and the sum of One Dollar ($1.00), cash in hand paid, receipt of which is hereby acknowledged, the Trustee, as authorized to act by Beneficiary, as shown by its execution hereto, subordinates the lien of the Deed of Trust to the easements herein conveyed by Bayshire. MISCELLANEOUS Headings used in this Deed are for convenience purposes only and are not intended to affect the express terms herein set forth. This Deed is made in accordance with the statutes made and provided in such cases; with the approval of the proper authorities of Loudoun County, Virginia, as shown by the signatures affixed to this Deed, and is with the free consent and in accordance with the desire of Bayshire and Fairfax City, the owners and proprietors of the land depicted on the Plat, and the Trustee, as aforesaid. Bayshire warrants that this Deed is made and executed pursuant to authority properly granted by the articles of organization, operating agreement or majority vote of the members of Bayshire. IN WITNESS WHEREOF, the parties have caused this Deed to be executed, under seal. FURTHER WITNESS the following signatures and seals. [SIGNATURE PAGES FOLLOW] 10 BAYSHIRE, L.C. By: (SEAL) Name: Title: COMMONWEALTH OF VIRGINIA, COUNTY OF , to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that , as of Bayshire, L.C., whose name is signed to the foregoing Deed, appeared before me and personally acknowledged the same in my jurisdiction aforesaid. GIVEN under my hand and seal this day of , 2010. My Commission expires: Notary Public My notary registration number is [SIGNATURE PAGE TO THAT CERTAIN DEED OF EASEMENT APPROVED BY LOUDOUN COUNTY, VIRGINIA, UNDER APPLICATION NUMBER ESMT 2010- .] l VIRGINIA TITLE HOLDING CORPORATION, TRUSTEE By: (SEAL) Name: Title: COMMONWEALTH OF VIRGINIA, COUNTY OF , to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that , as of Virginia Title Holding Company, Trustee, whose name is signed to the foregoing Deed, appeared before me and personally acknowledged the same in my jurisdiction aforesaid. GIVEN under my hand and seal this day of , 2010. My Commission expires: Notary Public My notary registration number is [SIGNATURE PAGE TO THAT CERTAIN DEED OF EASEMENT APPROVED BY LOUDOUN COUNTY, VIRGINIA, UNDER APPLICATION NUMBER ESMT 2010- .] I/ SUSQUEHANNA BANK By: (SEAL) Name: Title: COMMONWEALTH OF VIRGINIA, COUNTY OF , to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that , as of Susquehanna Bank, whose name is signed to the foregoing Deed, appeared before me and personally acknowledged the same in my jurisdiction aforesaid. GIVEN under my hand and seal this day of , 2010. My Commission expires: Notary Public My notary registration number is [SIGNATURE PAGE TO THAT CERTAIN DEED OF EASEMENT APPROVED BY LOUDOUN COUNTY, VIRGINIA, UNDER APPLICATION NUMBER ESMT 2010- .] 13 CITY OF FAIRFAX, VIRGINIA By: (SEAL) Name: Title: COMMONWEALTH OF VIRGINIA, COUNTY OF , to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that , as of the City of Fairfax, Virginia, whose name is signed to the foregoing Deed, appeared before me and personally acknowledged the same in my jurisdiction aforesaid. GIVEN under my hand and seal this day of 2010. My Commission expires: Notary Public My notary registration number is [SIGNATURE PAGE TO THAT CERTAIN DEED OF EASEMENT APPROVED BY LOUDOUN COUNTY, VIRGINIA, UNDER APPLICATION NUMBER ESMT 2010- .] ..)-2' N The Foregoing Easements Are Hereby Accepted Pursuant To Virginia Code Section 15.2 -1803 APPROVED AS TO LEGAL FORM: BOARD OF SUPERVISORS OF LOUDOUN COUNTY, VIRGINIA B y : (SEAL) Assistant County Attorney Name: Title: COMMONWEALTH OF VIRGINIA, COUNTY OF LOUDOUN, to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that , as of the BOARD OF SUPERVISORS OF LOUDOUN COUNTY, VIRGINIA, whose name is signed to the foregoing Deed, appeared before me and personally acknowledged the same in my jurisdiction aforesaid. GIVEN under my hand and seal this day of 2010. My Commission expires: Notary Public My notary registration number is [SIGNATURE PAGE TO THAT CERTAIN DEED OF EASEMENT APPROVED BY LOUDOUN COUNTY, VIRGINIA, UNDER APPLICATION NUMBER ESMT 2010- .] 15