THIS INSTRUMENT PREPARED BY
VIRGINIA BEACH CITY ATTORNEY'S OFFICE
EXEMPTED FROM RECORDATION TAXES UNDER
SECTIONS 58.1-811(A)(3) AND 58.1-811(C)(5);
REIMBURSEMENT AUTHORIZED PURSUANT TO SECTION 25.1-418
THIS DEED OF EASEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (hereinafter referred to as the “Easement”) is made this __#_ day of __#_, 20___, by and between
#___ , a Virginia [corporation/limited liability partnership/limited
liability company] (the “Developer”; the “Grantor”)), the
__#__
Homeowners’
Association, a Virginia corporation (the “Homeowners’ Association”; the “Grantor”), and the
CITY OF VIRGINIA BEACH, a municipal corporation of the Commonwealth of Virginia
(the “City”; the “Grantee”).
RECITALS:
A. Whereas the Developer is the developer of a new residential subdivision to be called
“______#________” (the “Subdivision”);
B. Whereas _____________________ is the Homeowners’ Association of a new
residential subdivision to be called “_____#_________” (the “Subdivision”);
C. Whereas the Subdivision is located in a part of the City known as the Transition Area
and is more particularly described on the subdivision plat entitled
“______#___________” and recorded simultaneously herewith;
D. Whereas the development standards for new residential subdivisions in the Transition
Area call for the dedication by the Developer of permanent public easements for use as
recreational trails;
#GPIN:
E. Whereas this Easement is in furtherance of the Developer’s development and of
meeting the Transition Area standards set forth in the City’s Comprehensive Plan;
F. Whereas the Developer has conveyed certain property to the Homeowners’
Association for open space and recreational uses and after such conveyances are complete,
the Homeowners’ Association agrees to be bound by the rights and obligations of this
Easement.
WITNESSETH:
That for and in consideration of the mutual benefits accruing or to be accrued
to the above-mentioned parties, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Grantor does hereby grant and convey, with
GENERAL WARRANTY and ENGLISH COVENANTS OF TITLE, an easement
(the
“Easement”) to the Grantee, its representatives, agents, assigns and/or successors in, under,
upon, above, and across lands and property of the Grantor (hereinafter referred to as the
“Property”), including the reasonable right of ingress and egress to and from the same,
described as follows and noted for future reference herein as the “Trail Easement Area” and
including both Primary and Secondary Trails within the Trail Easement Area as defined in
paragraph 3 below:
1. STATEMENT OF GRANT
Grantor hereby voluntarily, unconditionally, and absolutely grants and conveys
unto Grantee, and its agents, assigns and/or successors, an easement in gross and a declaration
of restrictive covenants, in perpetuity, over the Trail Easement Area, which shall be a public
trail for recreational purposes and for the use and enjoyment of the public, to preserve and
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protect the safety, health, peace, good order, comfort, convenience, and welfare of the people
in the City of Virginia Beach (such purposes hereinafter collectively referred to as the
“Recreational Purposes”).
Grantee hereby accepts the Easement and agrees to hold it
exclusively for such Recreational Purposes.
2. STATEMENT OF INTENT
It is agreed between the parties hereto that the Grantor, as owner of the
Property, intends to convey to Grantee the right to preserve and protect the Recreational
Purposes of the Trail Easement Area in perpetuity.
3. DEFINITIONS
As used herein, the following words shall have the defined meaning and intent:
a. TRAIL: A corridor of no more than ten (10) feet in width through which
passes, or may in the future pass a pathway as part of the City of Virginia Beach Bikeway and
Trail System or as otherwise authorized by the City (the “Trail”). A Trail is to serve the
recreation and transportation functions for one or more of the following: walkers, runners,
bicyclists, horseback riders, and skaters. Trails shall exclude all motorized vehicles except as
authorized by the City for maintenance, management, and emergency purposes, or as
otherwise authorized by the City Code Section 7-58 et seq., as amended.
Trails are
designated as Primary and Secondary Trails, as defined in subparagraph 3(c) and 3(d),
respectively.
b. TRAIL EASEMENT AREA: the area of at least twenty (20) feet in width
that contains the Trail and is restricted from any development, unless authorized by the
Grantee for Recreational Purposes. The term “Trail Easement Area” shall jointly reference all
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Primary and Secondary Trails, as defined in subparagraph 3(c) and 3(d), respectively, unless
the Trails are separately distinguished and defined herein.
c. PRIMARY TRAIL: a Trail within a Trail Easement Area situated on the
outer segments of the Property possessed by the Grantor and adjacent to major arterials
surrounding the development.
d. SECONDARY TRAIL: a Trail within a Trail Easement Area situated
within the Property possessed by the Grantor and providing access within the development
and connectivity to the Primary Trail, but not including any sidewalk or pedestrian right of
way as defined in City Code Appendix B (subdivision regulations).
e.
PROPERTY:
the parcel or parcels of property that comprise the
Subdivision referred to above, as more particularly shown on the final subdivision plat
entitled: “_________#____________,” dated ______#________, and recorded in the Clerk’s
Office for the City of Virginia Beach as Instrument No. __________#_____________.
4. PUBLIC ACCESS
In furtherance of the Recreational Purposes of this Easement set forth in
Paragraphs 1 and 2 above, Grantor hereby declares and covenants that the general public shall
have and be allowed regular access to the Primary and Secondary Trails for the purposes
described in paragraphs 1 and 3 above, subject to the limitations contained in paragraph 5.
5. LIMITATION ON PUBLIC ACCESS
a. The activities described in paragraph 3 shall be conducted in such a manner
as to preserve and protect the Recreational Purposes of the Trail Easement Area. The Grantee
shall have the right to make and enforce laws, including the prohibition of certain activities, as
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it may deem necessary. The Grantee shall be entitled to post signs about permitted and
prohibited activities in the Trail Easement Area as it may deem necessary.
b. Grantee shall have the right, as it deems necessary and in its sole discretion,
to temporarily prohibit public access to the Trail Easement Area in order to repair the Trail
Easement Area; relocate the Trails within the Trail Easement Area; or to construct, install,
maintain, alter, repair, or expand all public utilities including water, sewer, electrical, cable or
other utilities, provided that such utilities, once constructed, shall not interfere with the
Recreational Purposes.
c. Grantee shall have the right to impose any additional limitations with
respect to the Trail Easement Area as it deems necessary and appropriate in order to preserve
and protect the Recreational Purposes of the Trail Easement Area, or as needed for the safety,
health, peace, good order, comfort, convenience, and welfare of the general public.
d. Nothing herein shall be construed as a grant to the general public, or to a
person or persons, the right to enter upon any part of the Grantor’s Property other than the
Trail Easement Area.
6. CONSTRUCTION OF TRAILS
The Developer, or its agents, assigns, and/or successors shall construct the
Trails within the Trail Easement Areas. Said construction shall be completed prior to the
issuance of a certificate of occupancy for any building on Developer’s Property.
7. STANDARDS AND SPECIFICATIONS
The Developer, or its agents, assigns, and/or successors shall follow the
standards and specifications of the Grantee (as applicable at the time of construction) in the
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design, landscaping, construction, maintenance, and repair of both the Primary Trails and the
Secondary Trails.
8. MAINTENANCE RESPONSIBILITY
a. Primary Trails: The Grantee accepts the responsibility to maintain the
Primary Trails, once constructed, within the Primary Trail Easement Area.
b. Secondary Trails: [##TAILOR TO MATCH PROFFER] [Option #1:
The Grantee accepts the responsibility to maintain the Secondary Trails within the Secondary
Trail Easement Area.] [Option #2: The Grantee does not accept responsibility to maintain the
Secondary Trails within the Secondary Trail Easement Area.
All maintenance in the
Secondary Trails shall be performed by the Grantor, and the Grantee shall have no duty or
liability to perform any routine maintenance work in the Secondary Trail. However, the
Grantee may unilaterally and in its sole discretion accept responsibility to maintain the
Secondary Trails, but such acceptance is not effective, binding, or enforceable unless and
until the Grantee records a document in the Clerk’s Office of the Circuit Court of the City of
Virginia Beach stating that it is assuming the maintenance rights and obligations of the
Secondary Trails.]
9. TRAIL INSPECTION
It is agreed between the parties of this Easement that the Grantee and its
agents, assigns, and/or successors shall have the right to inspect the Trail Easement Area and
to cut and clean all undergrowth and remove other obstructions and debris in, overhanging,
and along the Easement or adjacent thereto that may in any way endanger or interfere with the
proper use of same, and to make use of the adjacent property for ingress and egress and for
other activities necessary for the alteration, operation and maintenance of the Easement.
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Nothing in this paragraph shall be deemed to change the obligations for the Grantee to
maintain the Trails as set forth in paragraph 8.
10. EASEMENT IN PERPETUITY
The provisions of this Easement shall inure to and be binding upon the heirs,
executors, administrators, devisees, successors, and/or assigns of the parties hereto and shall
be covenants running with the land in perpetuity.
11. SEVERABILITY
This Deed of Easement shall be construed in its entirety, however, in the event
that any provision or restriction of this Easement or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions and restrictions of the
Easement, and the application of such provision or restriction to persons or circumstances
other than those as to which it is found to be invalid, shall not be affected thereby.
12. ACKNOWLEDGEMENTS
By execution of this instrument, the Grantor attests that Grantor is the owner of
the Trail Easement Area and that the Trail Easement Area is not subject to a mortgage or, if it
is, that a subordination agreement from the mortgagor will be obtained.
Grantor
acknowledges that the plans for the Easement as they affect the Grantor’s property have been
fully explained to the Grantor.
[This area intentionally left blank.]
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WITNESS the following signatures and seals, pursuant to due authority:
DEVELOPER:
## Company, a Virginia [corporation/limited liability partnership/limited liability company]
By:_____________________________________(SEAL)
Name:______________________________________
Title: ______________________________________
HOMEOWNERS’ ASSOCIATION:
## Homeowners’ Association, a Virginia corporation
By: ____________________________________ (SEAL)
Name: ___________________________________
Title: ____________________________________
APPROVED AS TO CONTENT:
APPROVED AS TO FORM:
_____________________________
____________________________________
Signature – Planning Department/
Development Services Center
Signature - City Attorney
ACCEPTED ON BEHALF OF
THE CITY OF VIRGINIA BEACH:
______________________________________________
City Real Estate Agent
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ACKNOWLEDGMENT OF OWNER/DEVELOPER
STATE/COMMONWEALTH OF _____________________
CITY OF ______________________, to-wit:
I,
,
State/Commonwealth
a
Notary
Public
aforesaid,
that
in
and
do
,
for
the
hereby
City
and
certify
for
,
whose name is signed to the foregoing Instrument, has acknowledged the same before me in
my City and State/Commonwealth aforesaid. He/She/They is/are personally known to me or
has/have produced
identification.
GIVEN under my hand this
day of
, 20
.
Notary Public: __________________________
My Commission Expires: ____________________
ACKNOWLEDGMENT OF TRUSTEE
STATE/COMMONWEALTH OF ____________________
CITY OF ______________________, to-wit:
I,
,
State/Commonwealth
that
a
Notary
aforesaid,
,
Public
in
and
do
for
the
hereby
for
City
and
certify
,
whose name is signed to the foregoing Instrument, has acknowledged the same before me in
my City and State/Commonwealth aforesaid. He/She/They is/are personally known to me or
has/have produced
GIVEN under my hand this
identification.
day of
Notary Public: __________________________
My Commission Expires: ____________________
9
, 20
.
ACKNOWLEDGMENT OF CITY
COMMONWEALTH OF VIRGINIA
CITY OF VIRGINIA BEACH, to wit:
I,
, a Notary Public in and for the City and Commonwealth
aforesaid, do hereby certify that
, CITY MANAGER/
AUTHORIZED DESIGNEE OF THE CITY MANAGER PURSUANT TO § 2-154 OF THE
CITY CODE, whose name is signed to the foregoing agreement, bearing date the
of
, 20
day
, has acknowledged the same before me in my City and
Commonwealth aforesaid. He/She is personally known to me.
GIVEN under my hand this
day of
, 20
.
Notary Public: __________________________
My Commission Expires: ____________________
COMMONWEALTH OF VIRGINIA
CITY OF VIRGINIA BEACH, to wit:
I,
, a Notary Public in and for the City and Commonwealth aforesaid,
do hereby certify that
, City Clerk for the City of Virginia
Beach, Virginia, whose name is signed to the foregoing agreement, bearing date on
the
day of
, 20
, has acknowledged the same before me in my
City and Commonwealth aforesaid. He/She is personally known to me.
GIVEN under my hand this
day of
Notary Public: __________________________
My Commission Expires: ____________________
10
, 20
.