ࡱ> UWT` =bjbj ;X5&.vvv844.("""DDD   QZ6#($})h+6(6(DDK(mmmdDDmmmD Ѕ>tva(0(y,y,y,m6(6(X(...2D...2... Prepared by/Return to: City Attorney's Office 22 Lincoln Street Hampton, VA 23669 (757) 727-6127 (vtv) Exemption Claimed: Virginia Code 58.1-811C(3) INGRESS/EGRESS PUBLIC ACCESS EASEMENT AND MAINTENANCE AGREEMENT THIS EASEMENT AGREEMENT (the "Agreement"), made this ____ day of _____________, 2006, by and between THE CITY OF HAMPTON, a municipal corporation of the Commonwealth of Virginia, (the City), "Grantor" for purposes of indexing, and TYSINGER REAL ESTATE, LLC, a Virginia limited liability company, (Tysinger), "Grantee" for purposes of indexing, whose address is: 2712 Magruder Boulevard, Hampton, Virginia 23666. WHEREAS, the City is the owner of the following described tract or parcel of land lying and being in the City of Hampton, Virginia, and more particularly described as: Parcel 1: All that certain piece or parcel of land, situate and being in the City of Hampton, Virginia, containing 1.462 acres, more or less, and being more particularly described as follows: BEGINNING at a point where the Southerly boundary line of the road known as Billy Wood Road intersects the Westerly right-of-way line of the 50-foot road leading from Butler Farm Road to the United States Nike Site; said point of beginning also being the Northeasterly corner of Lot number 33 shown on that certain map entitled "Map Showing Subdivisions of DOWNEY FARM near Hampton, Va.", dated Feb. 1920, prepared by J.B. Sinclair, Jr., C.E., and recorded in Deed Book 68, at pages 160, et seq, in the Clerk's Office of the Circuit Court of the City of Hampton, Virginia; and from the point of beginning thus established, thence N8850'20"W along the Southerly boundary line of said Billy Wood Road a distance of 896.87 feet to a point on the Easterly right-of-way line of Magruder Boulevard; thence in a Southwesterly direction along said Easterly right-of-way line of Magruder Boulevard a distance of 74.62 feet to a point; thence S8850'E a distance of 922.72 feet to a point on the Westerly boundary line of the 50-foot right-of-way line of the road leading from Butler Farm Road to the United States Nike Site; thence in a Northerly direction along the Westerly boundary line of the aforesaid Nike Site road a distance of 75 feet, more or less, to the point or place of beginning. Being bounded on the North by Billy Wood Road, East by the Nike Site road, West by Magruder Boulevard, and South by the remaining lands of James S. D. Cumming. Parcel 2: All that certain piece or parcel of land, situate and being in the City of Hampton, Virginia, containing 4.328 acres, more or less, and being more particularly described as follows: BEGINNING at a point where the Southerly boundary line of Billy Wood Road intersects the Westerly right-of-way line of Magruder Boulevard; thence N8914'20"W along the Southerly boundary line of said Billy Wood Road a distance of 347.66 feet to a point; thence continuing N8914'20"W along the Southerly boundary line of said Billy Wood Road a distance of 1536 feet to a point; thence N7424'W along the Southerly boundary line of said Bill Wood Road a distance of 57.5 feet to a point; thence N8818'40"W along the Southerly boundary line of said Billy Wood Road a distance of 696 feet to a concrete monument found at the northwest corner of Lot No. 28 shown on the above-mentioned plat; thence S441'20"W along the Westerly boundary line of said Lot No. 28 a distance of 70.06 feet to a point; thence S8715'48"E a distance of 756.74 feet to a point; thence S8914'20"E a distance of 1535.76 feet to a point; thence continuing S8914'20"E a distance of 321.57 feet to a point in the Westerly right-of way line of Magruder Boulevard; thence proceeding in a Northeasterly direction along the Westerly right-of-way line of Magruder Boulevard a distance of 74.62 feet, more or less, to the point or place of beginning. Being bounded on the North by Billy Wood Road, East by Magruder Boulevard, West by the lands now or formerly belonging to E. L. Carmines, et al, and South by the remaining lands of James S. D. Cumming. Subject, however, to existing easements and rights of way of record. The above conveyed two parcels of land being the northerly most 70-75 feet, more or less, of lots 28, 29, 30, 31, 32, and 33 of the Downey Farm, as shown on the aforementioned plat; said lots 28 and 29 being conveyed to James S. D. Cumming by deed of Louis Heffelfinger dated July 15, 1922, and recorded in Deed Book 73, at page 338, in the Clerk's Office aforesaid; and said lots 30, 31, 32 and 33 being conveyed to James S. D. Cumming by deed of Paul Tabb, et al, dated April 1, 1920, and recorded in Deed Book 68, at page 174, in the Clerk's Office aforesaid. It being the same parcels conveyed to The City of Hampton, Virginia, a municipal corporation by deed dated September 16, 1963 from James S.D. Cumming and Sally W. Cumming, his wife, recorded in Deed Book 339, at page 180, in the Clerk's Office aforesaid. (Hereinafter collectively referred to as the "Billy Wood Canal Parcel"); WHEREAS, Tysinger is the owner of the following described parcel of land lying and being situate in the City of Hampton, Virginia, and more particularly described as: All those certain lots, pieces or parcels of land situate, lying and being in the City of Hampton, Virginia, known and designated as Parcel A and Parcel B as shown on that certain plat entitled, PLAT SHOWING PARCELS A & B ALSO KNOWN AS PARCEL 2 (D.B. 735 PG. 292) CONTAINING 145,701 SQ. FT. (3.35 ACRES) TO BE CONVEYED TO TYSINGER REAL ESTATE, LLC, LOCATED ON AIRBOURNE ROAD, CITY OF HAMPTON, VIRGINIA, made by Becouvarakis and Assoc., Land Surveying, dated April 7, 2005, and recorded in the Clerk's Office for the Circuit Court for the City of Hampton at Instrument No. 050013575, page748. (Hereinafter referred to as "Tysinger Additional Parcel"); WHEREAS, Tysinger and an affiliated entity of Tysinger own the parcels of land (the Existing Tysinger Parcels) adjacent to the northern boundary of the Tysinger Additional Parcel, separated only by the Billy Wood Canal Parcel; WHEREAS, Tysinger desires to have pedestrian access for Tysinger, its agents and invitees between the Existing Tysinger Parcels and the Tysinger Additional Parcel; and WHEREAS, the City has agreed to grant to Tysinger an easement over and across the Billy Wood Canal Parcel for the construction, use and maintenance of a pedestrian bridge between the Existing Tysinger Parcels and the Tysinger Additional Parcel by Tysinger, its agents and invitees. WITNESSETH: That for and in consideration of the sum of Ten Dollars ($10.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City does hereby grant and convey unto Tysinger, its successors and assigns, an easement for the purpose of a pedestrian ingress and egress by Tysinger, its agents and invitees (the Easement) over and across the Billy Wood Canal Parcel of the City, said Easement being more particularly bounded and described on the Plat attached hereto and incorporated herein. The Easement is subject to the following terms and conditions: 1. The pedestrian walkway and all appurtenant facilities installed in the Easement shall be constructed and maintained by Tysinger at its expense; provided, however, that in the event that a Citys agent or invitee causes damage to the Easement, the City shall be required to repair such damage and bear the cost thereof exclusively. Any maintenance or repairs to the Easement, where the necessity for such maintenance or repairs is a result of the Citys undertaking construction or renovation on its respective parcel, shall be borne one hundred percent (100%) by the City. Tysinger further agrees to maintain the top of the bank of the Billy Wood Canal adjacent to the Existing Tysinger Parcel and the Tysinger Additional Parcel. 2. Tysinger, its agents and invitees shall have full and free use of the Easement for the purposes set forth herein, and shall have all rights and privileges reasonably necessary to the exercise of the Easement and right-of-way including the right to perform such repairs and maintenance as Tysinger may deem necessary. 3. The City reserves a public easement (the Reserved Easement) within the Easement granted to Tysinger for a public pedestrian walking, running and biking trail over and across the pedestrian walkway to be constructed by Tysinger within the Easement. In the event that the City utilizes the Reserved Easement, the City shall thereafter bear one hundred percent (100%) of the costs of maintaining and repairing the pedestrian walkway and appurtenant facilities within the Easement and all maintenance of the top of the bank of the Billy Wood Canal adjacent to the Existing Tysinger Parcels and the Tysinger Additional Parcel. 4. It is agreed between the parties hereto that the City and its agents shall have the right to inspect the Easement and the Reserved Easement. 5. Tysinger and its successors and assigns shall indemnify and hold harmless the City, its agents, employees, volunteers and officials from and against any and all liability, demands, claims, causes of action, judgments (including without limitation, court costs and reasonable attorney's fees) for injury to persons, loss of life or damage occurring within the Easement which arises out of any negligent or willful act or omission by Tysinger or those for whom Tysinger is legally liable or a violation of law with Tysinger or those for whom Tysinger is legally liable. To the extent permitted by law and without waiving its sovereign immunity, the City shall be responsible for any demands, claims, causes of action and judgments for injury to persons, loss of life or damages occurring within the Easement or the Reserved Easement directly arising out of the gross negligence or any willful act by the City, its agents, or employees. 6. This Agreement sets forth the entire agreement and understanding between the parties with respect to the transaction contemplated hereby and supersedes all prior agreements, arrangements and understandings which led to the subject matter hereof. 7. All the terms, covenants, representations, warranties, indemnities and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns, whether or not specifically set forth in any paragraph or section of this Agreement. Failure of any party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the provisions. No waiver by either party of any condition, or the breach of any term, covenant, representation or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed a further or continuing waiver of any condition or covenant, representation or warranty of this Agreement. 8. Wherever used herein, the singular shall include the plural, the plural shall include the singular and the use of any gender shall include all other genders. 9. This Agreement shall be recorded at the Clerks Office of the Circuit Court of the City of Hampton, Virginia. 10. This Agreement shall be deemed to be a Virginia contract and shall be governed as to all matters whether of validity, interpretations, obligations, performance or otherwise exclusively by the laws of the Commonwealth of Virginia, and all questions arising with respect thereto shall be determined in accordance with such laws. Regardless of where actually delivered and accepted, this Agreement shall be deemed to have been delivered and accepted by the parties in the Commonwealth of Virginia. The provisions of this Agreement shall be severable and if any phrase, clause, sentence or provision is declared unconstitutional, or the applicability thereof is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby. 11. Any and all suits for any claims or for any and every breach or dispute arising out of this Agreement shall be maintained in the appropriate court of competent jurisdiction in the City of Hampton, Virginia. 12. This Agreement shall not be amended, changed, modified, waived or discharged in whole or in part except by written agreement signed by the record owners of the parcels. WITNESS the following signatures and seals: TYSINGER REAL ESTATE, LLC By: _________________________________ Mark L. Tysinger, Manager State of Virginia City/County of __________________, to wit: The foregoing instrument was acknowledged before me by Mark L. Tysinger, Manager of Tysinger Real Estate, LLC, on this the _____ day of _____________, 2006. ____________________________________ Notary Public My Commission Expires: ___________________ THE CITY OF HAMPTON, VIRGINIA By: _________________________________ Print Name: __________________________ Its: _________________________________ State of Virginia City/County of __________________, to wit: The foregoing instrument was acknowledged before me by _____________________, _________________ of the City of Hampton, Virginia, on this the _____ day of ___________, 2006. ____________________________________ Notary Public My Commission Expires: ___________________ Attested: ____________________________________ Clerk of Council Approved as to legal sufficiency: ____________________________________ City Attorney Approved as to content: ____________________________________ Department of Economic Development     PAGE  PAGE 6 hi|  " : L M ^ q t   $ % - . 1 2 9 S g  D žܺນܺܺຩܺhUh hU5h?ygh+]Ehzhhaih 'h?yghe5 hK5he h<heh<hxf>*h<he>* h h hKh  h >* h?yg>*h?ygCJaJh?yg>*CJaJ6.@Sbhi F P Q   $`a$gd<$d`a$gd<$a$gdk$a$gd?yg==D F O 6UhNd&/Tcdm   ! % & 0 7 ^ f *!?!c!v!{!ǿ˻˻˻˷˻˷˿˳˯˻˻˻˿˳˳˻˻h?h+]Eh}phh h"[:5hh"[:hNh hU5hKh!1h h hRBh<>*h< h<>*hUE\]  !$]^a$gd?yg $^a$gd!1$d`a$gd< $`a$gd?yg $`a$gd< $^a$gd {!!!!!!!!" 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