ARLINGTON COUNTY, VIRGINIA. County Board Agenda Item Meeting of January 27, 2018

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1 ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of January 27, 2018 DATE: January 22, 2018 SUBJECT: Deed of Easement for Public Sidewalk and Utilities Purposes on Property Located at the Corner of Lee Highway and North Lexington Street, 5747 Lee Highway, RPC#s and C. M. RECOMMENDATIONS: 1. Approve the attached Deed of Easement for Public Sidewalk and Utilities Purposes on property located at the corner of Lee Highway and North Lexington Street, 5747 Lee Highway, RPC#s and Authorize the Real Estate Bureau Chief, Department of Environmental Services, or his designee, to accept, on behalf of the County Board, the Deed of Easement for Public Sidewalk and Utilities Purposes attached to this Board Report as Exhibit A, subject to approval as to form by the County Attorney. ISSUES: There are no issues associated with the approval and acceptance of the attached Deed of Easement for Public Sidewalk and Utilities Purposes as of the date of this report. SUMMARY: This is a request for the County Board to approve and accept the Deed of Easement for Sidewalk and Utilities Purposes ( Easement ), attached hereto as Exhibit A, required to be conveyed to the County by the owner of the property located at the corner of Lee Highway and North Lexington Street, 5747 Lee Highway, RPC#s and ( Property ). (Although the attached Easement is unsigned, as of the date of this report, the Easement has been signed by the Grantor.) The Easement includes an area of public sidewalk that was constructed on the Property as part of a by-right development of the Property as a 7-11 convenience store. The Easement will allow the County to install, maintain and repair the public sidewalk and place utilities within the Easement area now and in the future. The Easement will be conveyed to the County for no compensation. BACKGROUND: The Property is located at the corner of Lee Highway and North Lexington Street. The Easement is located on the western side of the Property, running north from Lee County Manager: ##### County Attorney: ***** 33. Staff: Linda Eichelbaum Collier, DES, REB

2 Highway and adjacent to North Lexington Street. The Property and the general location of the Easement is more particularly shown on the Vicinity Maps attached to this Board Report. DISCUSSION: Deeds conveying permanent property interests to the County Board must be accepted by, or on behalf of, the County Board to be valid. Because the 7-11 and sidewalk on the Property was constructed as a by-right development and not part of a special exception site plan approval, the Easement must be specifically brought to the County Board for approval and acceptance. The County Board is requested to authorize the Real Estate Bureau Chief, Department of Environmental Services, to execute the Easement, indicating acceptance thereof on behalf of the County Board. The Easement is necessary for the County to maintain and repair, as needed, the newly constructed sidewalk and any underground utilities. The Easement has been signed by the owner of the Property and the lien holder has subordinated its interests to the County s Easement. The area acquired for the Easement is shown on a plat, attached hereto as Exhibit B, entitled Plat Showing Easement for Public Sidewalk and Utilities Purposes on Parcel A and Part Lot 1 Corbin Heights, Deed Book 971, Page 300, Arlington County, Virginia, dated November 21, 2017 and prepared by Bohler Engineering ( Plat ) and designated as Easement for Public Sidewalk and Utilities Purposes Hereby Granted Area = 703 S.F. PUBLIC ENGAGEMENT: There is no public engagement process required for approval and acceptance of Deeds of Easement by the County on private property. FISCAL IMPACT: There is no fiscal impact related to approval and acceptance of the attached Easement. Upon recordation of the Easement in the Arlington County land records, the County will be responsible for maintenance and repair of the existing sidewalk and any underground utilities that exist now or in the future within the Easement area

3 Prepared by and return to: Bean, Kinney & Korman P.C Wilson Boulevard, 7 th Floor Arlington, Virginia Attn: Zachary G. Williams, Esq. (VSB # 77473) RPC Nos ; EXEMPT FROM RECORDATION TAXES IMPOSED UNDER VA. CODE PURSUANT TO VA. CODE (A)(3) DEED OF EASEMENT THIS DEED OF EASEMENT (this Deed ) is made this day of, 2018, by and between KENSINGTON ONE, LIMITED LIABILITY COMPANY, a Virginia limited liability company ( Owner ), grantor, and JAMES A. MOTLEY, EVP & CCO AND SEAN D. GREGG, as Trustees, (collectively, Trustees ), grantor, and VIRGINIA COMMUNITY BANK, as Beneficiary, ( Beneficiary ), grantor, and THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA, a body politic and corporate, (the County ), grantee. RECITALS R-1. R-2. R-3. WHEREAS, the Owner is the owner of certain property ( Property ) by virtue of a deed dated January 5, 2017 and recorded as Instrument Number , among the land records of Arlington County, Virginia ( Land Records ), as further depicted on a plat prepared by Bohler Engineering and attached hereto as Exhibit 1, and entitled, PLAT SHOWING EASEMENT FOR PUBLIC SIDEWALK AND UTILITIES PURPOSES ON PARCEL A AND PART LOT 1 CORBIN HEIGHTS Deed Book 971, Page 300, dated September 11, 2017, revised November 21, 2017 and December 19, 2017, and approved by the Subdivision and Bonds Administrator of Arlington County, Virginia on December 21, 2017 (the Plat ). WHEREAS, by Construction Deed of Trust, dated January 5, 2017 and recorded as Instrument Number , among the Land Records ( Deed of Trust ), the Property was conveyed in trust to the Trustees, to secure a certain indebtedness to the Beneficiary. WHEREAS, it is now the desire of Owner to redevelop the Property, and as part of the redevelopment, to create, grant, and convey unto the County an Easement for Public Sidewalk and Utilities Purposes, in the areas and dimensions shown as EASEMENT FOR PUBLIC SIDEWALK AND UTILITIES PURPOSES HEREBY GRANTED AREA = 703 S.F. ( Easement ) on the Plat, and to subordinate the lien of the Deed of Trust to the Easement created herein

4 WITNESSETH: EASEMENT FOR PUBLIC SIDEWALK AND UTILITIES PURPOSES NOW, THEREFORE, in consideration of the sum of One Dollar and 00/100 ($1.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Owner does hereby create, grant, and convey unto the County, its successors and assigns, the Easement, over, under, across and through the Property in the locations and dimensions shown on the Plat (the Easement Area ) for the purposes of construction, operation, maintenance, location, removal, repair, reconstruction, relocation, and replacement of present or future public sidewalks and utilities. The Easement is subject to the following terms and conditions: 1. The County and its agents shall have full and free use of the said Easement Area for the purposes named and shall have all rights and privileges reasonably necessary to exercise the use of the Easement, including the right of access to and from the Easement Area, and the right to use adjoining land of the Owner where necessary; provided, however, that this right to use adjoining land shall be exercised only during periods of actual construction, operation, maintenance, removal, repair, reconstruction, relocation and replacement; and further, that this right shall not be construed to allow the County to erect any building or structure of a permanent nature on such adjoining land. 2. The County shall have the right, but not the obligation, to trim, cut and remove trees, shrubbery, fences, structures or other obstructions or facilities in or reasonably near the Easement Area; provided, however that the County at its own expense shall restore, as nearly as practicable, the premises to their original condition, such restoration to include the backfilling of trenches, the replacement of shrubbery and the reseeding of lawns, but not the replacement of structures, trees or other obstructions. 3. Owner covenants that Owner is seized of and has the right to convey the Easement and that the Owner shall make no use of the Easement Area which is inconsistent with the easement rights hereby granted. 4. Owner reserves the right to make any use of the Easement Area which may not be inconsistent with the rights herein conveyed or interfere with the use of the Easement by the County for the purposes named. SUBORDINATION In consideration of the sum of Ten Dollars ($10.00), cash in hand paid, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Trustees, as authorized to act by the Beneficiary, do hereby consent to and subordinate the lien of the Deed of Trust to the Easement conveyed herein and shown on the Plat. It is expressly understood that the subordination of the lien of the Deed of Trust to the Easement conveyed shall not affect in any way the lien of the Deed of Trust upon the other land conveyed thereby and not released hereby or subject to said Easement, and the Deed of Trust shall

5 remain in full force and effect as to the land conveyed thereby and not released hereby, subject to said subordination. MISCELLANEOUS 1. This Deed is made with the free consent and desire of the Owner. 2. The parties agree that the terms, conditions, and covenants stated in this Deed shall be construed as covenants running with the land and shall be binding upon and shall inure to the benefit of Owner, the County, and their respective successors and assigns. 3. The parties agree that this Deed describes the entire agreement and understanding between the Owner and the County with respect to the subject matter hereof and that no written or verbal statement or representations have been made by or to the County which either modify, add or change this Deed. 4. If any term or provision of this Deed shall be invalid or unenforceable to any extent, the remainder of this Deed shall not be affected thereby, and each term and provision of this Deed shall be valid and enforceable to the fullest extent permitted by law. 5. This Deed shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. 6. The Recitals are hereby incorporated into this Deed. [SIGNATURES APPEAR ON FOLLOWING PAGES] [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

6 WITNESS the following signatures and seals. OWNER: KENSINGTON ONE LIMITED LIABILITY COMPANY, a Virginia limited liability company By: (SEAL) Name: Title: COMMONWEALTH OF VIRGINIA COUNTY OF, to-wit: I, the undersigned Notary Public of and for the jurisdiction aforesaid, do hereby certify that, as of Kensington One Limited Liability Company, a Virginia limited liability company, whose name is signed to the foregoing Deed, has this date appeared before me, and acknowledged the same. Given under my hand this day of, My Commission Expires: Notary Public [SIGNATURES CONTINUE ON FOLLOWING PAGE] [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

7 Witness the following signatures and seals: TRUSTEE: JAMES A. MOTLEY, EVP & CCO BY: STATE OF, CITY/COUNTY OF, TO-WIT: I,, a notary public in and for the State and County aforesaid, do certify that, whose name is signed to the foregoing instrument dated, 20, has acknowledged the same before me. GIVEN under my hand this day of, 20. Notary Public Registration No.: My Commission Expires: [SIGNATURES CONTINUE ON FOLLOWING PAGE] [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

8 Witness the following signatures and seals: TRUSTEE: SEAN D. GREGG BY: STATE OF, CITY/COUNTY OF, TO-WIT: I,, a notary public in and for the State and County aforesaid, do certify that, whose name is signed to the foregoing instrument dated, 20, has acknowledged the same before me. GIVEN under my hand this day of, 20. Notary Public Registration No.: My Commission Expires: [SIGNATURES CONTINUE ON FOLLOWING PAGE] [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

9 Witness the following signatures and seals: BENEFICIARY: VIRGINIA COMMUNITY BANK BY: ITS: STATE OF, CITY/COUNTY OF, TO-WIT: I,, a notary public in and for the State and County aforesaid, do certify that, of Virginia Community Bank, whose name is signed to the foregoing instrument dated, 20, has acknowledged the same before me. GIVEN under my hand this day of, 20. Notary Public Registration No.: My Commission Expires: [SIGNATURES CONTINUE ON FOLLOWING PAGE] [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

10 The Deed of Easement herein conveyed is accepted this day of, 20 on behalf of the County Board of Arlington County, Virginia, pursuant to a Resolution adopted by the County Board on. COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA By: Name: Title: COMMONWEALTH OF VIRGINIA: COUNTY OF ARLINGTON: to-wit, The foregoing instrument was acknowledged before me this day of, 2017, by, the on behalf of the County Board of Arlington County, Virginia. Notary Public My Commission expires: Notary Registration No.: APPROVED AS TO FORM: County Attorney

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13 Vicinity Map Approval and Acceptance of a Sidewalk and Utilities Easement for Lee Hwy RPC # & TH ST N N LEXINGTON ST Easement for Public Sidewalk and Utilities Purposes LEE HWY N MADISON ST 0 50 Feet / Pursuant to Section of the Code of Virginia, any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. Aerial Photography 2015 Commonwealth of Virginia Easement Locations are Approximate. Map prepared by Arlington County GIS Mapping Center Produced and January 2018

14 Vicinity Map Approval and Acceptance of a Sidewalk and Utilities Easement for Lee Hwy RPC # & S TH TN EX NL ING N TO ST Easement for Public Sidewalk and Utilities Purposes H LEE N MADISO 0 WY 50 Feet / N ST Pursuant to Section of the Code of Virginia, any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. Aerial Photography 2015 Commonwealth of Virginia Easement Locations are Approximate. Map prepared by Arlington County GIS Mapping Center Produced and January 2018

15 Vicinity Map Approval and Acceptance of a Sidewalk and Utilities Easement for Lee Hwy RPC # & TH ST N N KENILWORTH ST N JEFFERSON ST 25TH RD N N KENSINGTON ST 25TH ST N N MCKINLEY ST Easement for Public Sidewalk and Utilities Purposes LEE HWY N KENSINGTON ST N NOTTINGHAM ST N LEXINGTON ST 24TH ST N N MADISON ST 23RD ST N Feet N KENTUCKY ST / Pursuant to Section of the Code of Virginia, any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination. Aerial Photography 2015 Commonwealth of Virginia Easement Locations are Approximate. Map prepared by Arlington County GIS Mapping Center Produced and January 2018