PRIVATESANITARY SEWER
MAINTENANCE AGREEMENT
THIS PRIVATESANITARY SEWER MAINTENANCE AGREEMENT
made this ______day of ______, 20______, by
______(the “Covenantor,” and for indexing
(individual, partnership, association, corporation, LLC)
purposes “Grantor”); the CITY OF VIRGINIA BEACH, a municipal corporation of the
Commonwealth of Virginia, (the “City,” and for indexing purposes “Grantee”);
______(the “Trustee,” and for indexing purposes “Grantor”); and
______(the “Noteholder,” and for indexing purposes “Grantor”).
W I T N E S S E T H:
WHEREAS, the City is authorized and required to regulate and control the
public sanitary sewer system within the City of Virginia Beach as set forth in certain sections of the Code of the City of Virginia Beach (the “City Code”), including City Code Section 28-2; Appendix B, Subdivision Regulations Section 5.9; and Appendix C, Site Plan Ordinance Section 5.15, as amended; and
WHEREAS, the Covenantor is the owner and is seized in fee simple of a certain tract(s) or parcel(s) of land more particularly described on Schedule A attached hereto (the “Property”); and
WHEREAS, Covenantor desires to construct and maintain a privateshared sanitary sewer service through a common sanitary sewer line (the “Sanitary Sewer Facilities”) on both the Property and adjacent lands; and
GPIN # ______Prepared by: ______
WHEREAS, in order to accommodate and regulate these anticipated changes in existing sanitary sewer conditions, the Covenantor desires to build and maintain, at Covenantor’s expense, the Sanitary Sewer Facilities more particularly described and shown on plans titled ______sheets ____ through ____ of ______prepared by ______and dated ______, which plans and any amendments thereto, are on file with the Development Services Center of the Planning Department of the City of Virginia Beach, Virginia, and are hereby incorporated by reference (the “Plan”); and
WHEREAS, the City has reviewed and approved the Plan and a variance to the Public Utilities Standards (the “Variance”) to construct the aforementioned Sanitary Sewer Facilities, subject in part to the execution of this Agreement.
NOW, THEREFORE, in consideration of the benefits received and to be received by the Covenantor, and its successors and assigns (collectively, hereinafter the “Covenantor”), as a result of the City’s approval of the Variance and the Plan, the Covenantor, hereby covenants and agrees with the City as follows:
1. At its sole expense, the Covenantorshall construct and perpetually maintain the Sanitary Sewer Facilities in strict accordance with the City Code, as amended, the Plan and any subsequent amendments to thePlan which have been approved by the City.
2. At its sole expense, the Covenantor shall make such changes or modifications to the Sanitary Sewer Facilities as may be determined as reasonably necessary by the City to ensure that the Sanitary Sewer Facilities are properly maintained and are operating properly.
3.At reasonable times and in a reasonable manner, the City, its agents, employees and contractors, shall have the right of ingress and egress over the Property and the right to inspect the Sanitary Sewer Facilities in order to ensure that the Sanitary Sewer Facilities are being properly maintained, are continuing to perform in an adequate manner and are in compliance with the City Code, the Plan and any amendments thereto approved by the City.
4.Should the Covenantor fail to properly maintain and/or correct defects or malfunctions to the Sanitary Sewer Facilities which render the Sanitary Sewer Facilities inoperable, contribute to excessive infiltration or inflow, produce sanitary sewer overflows, perform in any way that would be adverse to the public interest or create a health hazard or public nuisance, the City may give notice to the Covenantor to take immediate and appropriate corrective action to restore the Sewer Facility to operating condition.
5.Should the Covenantor fail to correct any defects or malfunctions in the Sanitary Sewer Facilities within forty-eight (48) hours of the written notice or within the time specified in a written notice from the City that the Covenantor has failed to maintain the Sanitary Sewer Facilities in accordance with the approved designed operating condition, the Plan and/or the City Code, the City may pursue all remedies available under the law, including, but not limited to, such civil and criminal remedies set forth in City Code Section 28-1, terminating water service to the Property, and repairing/maintaining or having the repairs/maintenance completed by a qualified licensed contractor. Should the City have to facilitate the repair/maintenance of the Sanitary Sewer Facilities, the Covenantor agrees to reimburse the City for all costs associated with the repair/maintenance to the Sanitary Sewer Facilities.
6. The Covenantor shall indemnify, hold harmless and defend the City from and against any and all claims, demands, suits, liabilities, losses, damages and payments, including reasonable attorney’s fees claimed or made against the City that are alleged or proven to result or arise from the Covenantor’s construction, operation or maintenance of the Sanitary Sewer Facilities.
7.This Agreement and the covenants and agreements contained herein shall run with the title to the land, and whenever the Property shall be sold, conveyed or otherwise transferred, such transferee (“Transferee”) shall be subject to the covenants, stipulations, agreements and provisions of this Agreement which shall apply to, bind and be obligatory upon the Covenantor hereto, its successors and assigns, and shall bind, jointly and severally, all present and subsequent owners of the Property described herein, unless expressly released as described in this paragraph 7.
Initially, the original Covenantor is solely responsible for the performance of the obligations required hereunder and, to the extent permitted under applicable law, the payment of any and all fees, fines, and penalties associated with such performance or failure to perform under this Agreement. Notwithstanding any provisions of this Agreement to the contrary, upon the recordation of a deed or other instrument of sale, transfer or other conveyance of fee simple title to the Property or any portion thereof (a “Transfer”) to a Transferee, the Covenantor may be released of all of its obligations and responsibilities under this Agreementaccruing after the date of such Transfer to the extent such obligations and responsibilities are applicable to that portion of the Property included in such Transfer, but such release shall be expressly conditioned upon the Transferee assuming such obligations and responsibilities by recorded written agreement for the benefit of the City. Such written agreement may be included in the Transfer deed or instrument, provided that the Transferee joins in the execution of such deed or instrument. A certified copy of such deed, instrument or agreement shall be provided to:
City of Virginia Beach, Department of Public Utilities
Attention: Director of Public Utilities
MunicipalCenter – Building 2
2405 Courthouse Drive
Virginia Beach, VA23456-9040
The provisions of the preceding three sentences shall be applicable to the original Covenantor and any successor Transferee who has assumed the obligations and responsibilities of the Covenantor under this Agreement as provided above. Failure to provide a copy of the Transfer deed, instrument or other release does not void this or any part of this Agreement or the transfer of the obligations and responsibilities cited within this Agreement.
8.Nothing herein shall be construed to prohibit a transfer by the Covenantor to subsequent Transferees.
9.Nothing contained herein shall be construed to grant any permission or approval to the Convenantor in connection with the construction of the Sanitary Sewer Facilities, and the Convenantor agrees it will apply for all necessary permits, licenses, and approvals for the construction of the Sanitary Sewer Facilities from the appropriate person, public or private body, and/or department, for any needed authorization including without limitation variances, encroachments, rights of access over adjacent lands, site plan approvals, or any other authorization (collectively “Approvals”), and nothing contained herein shall be construed to enlarge, alter or replace the permission, authority, terms or provisions granted by such Approvals.
10.The provisions of this Agreement shall be severable, and if any phrase, clause, sentence or provision is declared unconstitutional, or the applicability thereof to the Covenantor is held invalid, the remainder of this Agreement shall not be affected thereby.
11.______, the Noteholder, being the holder of a note or notes secured by a lien on the Property through a deed of trust dated ______, from ______to ______and ______, Trustees, either of whom may act, recorded in the Clerk’s Office of the Circuit Court of the City of Virginia Beach, Virginia (the “Clerk’s Office”) by Instrument # ______(the “Deed of Trust”), joins in the execution of this Agreement to evidence its consent to the provisions hereof and to direct the Trustee to execute same for subordination purposes. At the direction of the Noteholder, the Trustee joins herein to subordinate the lien of the Deed of Trust, and the Noteholder and the Trustee hereby acknowledge and agree that the lien of the Deed of Trust is hereby subordinated to this Agreement, the covenants created or set forth herein and all of the rights of the City hereunder.
12.This Agreement shall be recorded in the Clerk’s Office.
13.In the event that the City at any time shall determine in its sole discretion that the Sanitary Sewer Facilities are no longer required, then at the request of the Covenantor, its successors and/or assigns, the City may execute a release of this Agreement, which the Covenantor shall record in the Clerk’s Office, at the Covenantor’s expense.
14. This Agreement shall be deemed to be a Virginia contract and shall be governed as to all matters, whether of validity, interpretation, 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 all parties in the Commonwealth of Virginia.
15.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 Virginia Beach.
16.This Agreement shall not be modified except by written instrument executed by the City and the owner(s) of the Property at the time of modification, and no modification shall be effective until recorded in the Clerk’s Office.
17.(To be used for Corporations)IN WITNESS WHEREOF, as of the date first above written the said @ has caused this Agreement to be executed in its corporate name and on its behalf by its president. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk.
17.(To be used for Individuals)IN WITNESS WHEREOF, as of the date first above written @, the said Grantee, has caused this Agreement to be executed by his/her/their signature. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk.
17.To be used for Partnerships)IN WITNESS WHEREOF, as of the date first above written @ Partnership has caused this Agreement to be executed in its name on its behalf by @, a general partner, with due authority to bind said partnership. Further, that the City of Virginia Beach has caused this Agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk.
17.@(To be used for L.L.C. where a corporation is Manager) IN WITNESS WHEREOF, as of the date first above written the said @, L.L.C. has caused this agreement to be executed on its behalf by, President of @ Corporation, a @ corporation, Manager of @, L.L.C., a @ limited liability company, with due authority to bind said limited liability company. Further, that the City of Virginia has caused this agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk.
17. @(To be used for L.L.C. where individual is Manager) IN WITNESS WHEREOF, as of the date first above written the said @, L.L.C. has caused this agreement to be executed by , Manager of @, L.L.C., a @ limited liability company, with due authority to bind said limited liability company. Further, that the City of Virginia has caused this agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk.
17. @(To be used for L.L.C. when members sign) IN WITNESS WHEREOF, as of the date first above written the said @, L.L.C. has caused this agreement to be executed on its behalf by , Member(s) of @, L.L.C., a @ limited liability company, with due authority to bind said limited liability company. Further, that the City of Virginia has caused this agreement to be executed in its name and on its behalf by its City Manager and its seal be hereunto affixed and attested by its City Clerk.
______
Covenantor’s Name
BY:______(SEAL)
(individual, partnership, association, corporation)
Name:______
Title:______
ATTEST:
By: ______
NameTitle
ACKNOWLEDGMENT OF OWNER/DEVELOPER
STATE OF ______
CITY OF ______, to-wit:
I, , a Notary Public in and for the City and State aforesaid, do hereby certify that , for , whose name is signed to the foregoing Instrument, has acknowledged the same before me in my City and State 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 ______
Notary Registration Number: ______
______
Noteholder
BY:______
Name Title
ATTEST:
By: ______
Name Title
NOTEHOLDER ACKNOWLEDGEMENT
STATE OF ______
CITY OF ______, to wit:
I, ______, a Notary Public in and for the
City and state aforesaid, do hereby certify that ______,
Name
______And ______,
TitleName
______Respectfully, of ______,
Title(name of noteholder.)
whose names as such are signed to the foregoing Agreement, have acknowledged the
same before me in my City and State aforesaid. He/She/They is/are personally known to
me or has/have produced ______identification.
GIVEN under my hand this ______day of ______, 20_____.
______My Commission Expires: ______
Notary Public
Notary Registration Number: ______
______
Trustee (for noteholder)
______
Trustee (for noteholder)
TRUSTEE ACKNOWLEDGEMENT
STATE OF ______
CITY OF ______, to wit:
I, ______, a Notary Public in and for the
City and state aforesaid, do hereby certify that ______and
Name
______, Trustee, whose names as such are signed to the
Name
foregoing Agreement, have acknowledged the same before me in my City and State
aforesaid. He/She/They is/are personally known to me or has/have produced
______identification.
GIVEN under my hand this ______day of ______, 20_____.
______My Commission Expires: ______
Notary Public
Notary Registration Number: ______
ATTEST: CITY OF VIRGINIA BEACH, VIRGINIA
______
Signature – City ClerkCity Manager/Authorized Designee of City Manager
CITY’S ACKNOWLEDGEMENT
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to wit:
I, ______, a Notary Public in and for the
City and state 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 _____ day of ______, 20_____, has acknowledged the same before me in my City and State aforesaid. He/She is personally known to me. GIVEN under my hand this ______day of ______, 20_____.
______My Commission Expires: ______
Notary Registration Number: ______
STATE OF VIRGINIA
CITY OF VIRGINIA BEACH, to wit:
I, ______, a Notary Public in and for the
City and state aforesaid, do hereby certify that ______City Clerk for the City of Virginia Beach, Virginia, whose name is signed to the foregoing Agreement, bearing date the _____ day of ______, 20_____, has acknowledged the same before me in my City and State aforesaid. She is personally known to me.
GIVEN under my hand this ______day of ______, 20_____.
______My Commission Expires: ______
Notary Registration Number: ______
APPROVED AS TO CONTENT:APPROVED AS TO FORM:
______
Signature – DevelopmentServicesCenterSignature – City Attorney
[SCHEDULE A]
PROPERTY DESCRIPTION
Rev. March 20, 2009
Page 1 of 14______
Owner’s Initials