HomeMy WebLinkAboutLOD202100021 DB 3340-466Instrument Control Number
020976
Commonwealth of Virginia
Land Record Instruments
Cover Sheet - Form A
IILS VLR Cover Sheet Agent 1.0.66]
Date of Instrument:
O Instrument Type:
E Number of Parcels
Number of Pages
City ❑County®
P
Laef Name
[Russell
❑ ® (LET IT GO LLC
Q0 [THE NATURE C
I
Grant" Address
(12/1912006 1
[DE ]
[ 11
1 371
(Albemarle
Doc ID: 003193170038 Type: DEE
Recorded: 12/20/2906 at 10:11:51 Afl
Fee Aft: $0.00 Page 1 of 314
Albemarle County. VA
Sh+lby Marshall Clerk circuit Court
Fllee 2000-66020876
aK3340 Pa466-503
I[ I[
(Hama) [The Nature Conservancy
(Address 1) (480 Westfield Road
(Address 2) [
(Boa for Deed Stamp Only)
Is Name or IniUal Sul
] [Trustee
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k Narre or Infuel Sul
1f
(City, state, Zip) (Charlottesville I IVA] [22901
Cotalderation (0.00 1 Existing Debt 10.00 1 Assumption Balance 10.00
Prior Instr. Recorded at. City Q County ❑ ( ] Percent in this June. ( 10DI
Book [ I Page I I Instr. No ( I
Parcel Identification No (PIN) [TAX MAP 123, PARCELS 17A, 17B, 26, 40A, 40B, AND 40CI )
Tax Map Num. IS different than PIN) [TAX MAP 123, PARCELS 17A, 17B, 26, 40A, 408 AND 40C1 1
Short Property Description [120.86 ACRES, STATE ROUTE 618 ]
( 1
Current Property Address lAddraae 1) [576 JEFFERSON MILL LANE ]
(Address 2) [ l
(City, stab, Zip) (SCOTTSVILLE ]IVA 1(24590 1
Instrument Prepared by [George W. Barlow, III ]
Recording Paid for by [Williams Mullen ]
Return Recording to (Name) (Republic Title Services J
(Address 1) [409 Park Street ]
(Address 2) [ ]
(city, state, Zip) [Charlottesville I [VA 1 [22902 1
Customer case 10 1 1 [ 11 ]
Cover Sheet Page s 1 of 2
Instrument Control Number
Commonwealth of Virginia
Land Record Instruments
Continuation Cover Sheet
Form B
IILS VLR Cover Sheet Agent 11.0.001
T
Date of Instrument: [12/1912006 ]
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Instrument Type: [DE ]
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Number of Pamela ( 1 ]
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Number of Pages ( 371 ...._.- ----------------------------- ......... ....... ................................... ...
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city ❑Courdl [Aibemark County I (Box for Deed Stomp Only)
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Grantora/GranbeslPareel Continuation Form B
Last Name First Name glltltlk Name or Initial SW10r
[THE NAMELESS ONE I ( ] [ ]
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Prior Instr. Recorded at: City ❑ County ❑ [
Book I I Page [
Romal Identification No (PIN)
Tax Map Num. (If different than PIN) [
Short Property Description [
1
Current Property Address (Address 1)
(Address 2) [
(City, State. Zip) [
Cover Sheet Page p 2 of 2
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Ina r. No [
020976 i
Note: 'this Conservation Easement has been drafted by Grantee as an accommodation to Grantor. Cantee
does not represent the interests of Grantor. Grantee strongly advises Grantor to review this document with
Grantor's attorney.
Thia document wax prepared by..
Ceaire W Bad". 111. DM ion,411 r ey
The Nature Cone aney
490 Wea7tleld Road
Charlonexville, Virginia 12901
Tax Map Parcel: May 123. Parcels 17A. 17% 26, 40A. 40B. and 40C 1
CONSERVATION EASEMENT
This DEED OF GIFT OF CONSERVATION EASEMENT ("Conservation
Easement") exempt from all recordation taxes pursuant to Virginia Code §§ 58.1-811(D)
and (F), is made on this 10 day of December, 2006, by JOHN E. RUSSELL, TRUSTEE
OF THE HARDWARE RIVER LAND TRUST under a trust agreement June 28, 1998
("Hardware River Land Trust'), to be indexed as Grantor, with an address of do C.
Wesley Reynolds, 26 Teatown Road, Croton -on -Hudson, New York, NY 10520, and
LET IT GO, LLC, a Virginia limited liability company ("Let It Go"), to be indexed as
Grantor, with an address of c/o C. Wesley Reynolds, 26 Teatown Road, Croton -on -
Hudson, New York, NY 10520, and THE NAMELESS ONE, LLC, a Virginia limited
liability company ("Nameless One" and collectively together with the Hardware River
Land Trust and Let It Go, "Grantor'), to be indexed as Grantor, with an address of c/o C.
Wesley Reynolds, 26 Teatown Road, Croton -on -Hudson, New York, NY 10520, and
THE NATURE CONSERVANCY, a non-profit corporation organized and existing under
the laws of the District of Columbia ("Grantee'), to be indexed as Grantee, with a local
address of 490 Westfield Road, Charlottesville, Virginia 22901.
RECITALS:
A. The Hardware River Land Trust is the sole owner in fee simple of the property
legally described in Exhibit A, attached hereto and incorporated by this reference,
which consists of 20.301 acres, more or less, located in the Scottsville Magisterial
District, Albemarle County, Commonwealth of Virginia, and includes Tax Map
123 Parcel 40A, 40B, and 40C1 (the "Hardware River Trust Tracts").
B. Let It Go is the sole owner in fee simple of the property legally described in
Exhibit B. attached hereto and incorporated by this reference, which consists of
66.655 acres, more or less, located in the Scottsville Magisterial District,
Albemarle County, Commonwealth of Virginia, and includes Tax Map 123 Parcel
17B and 26 (the "Let It Go Tracts" and collectively together with the Hardware
River Trust Tracts, the "Jefferson Mill Property").
C. Nameless One is the sole owner in fee simple of the property legally described in
Exhibit C, attached hereto and incorporated by this reference, which consists of
120.88 acres, more or less, located in the Scottsville Magisterial District,
Albemarle County, Commonwealth of Virginia, and includes Tax Map 123 Parcel
17A ("Last Resort Farm Property ").
D. As used herein, the term "Property" shall refer collectively together to the
Jefferson Mill Property and the Last Resort Farm Property, which consists of
approximately 207.88 acres in the aggregate, more or less, located in the
Scottsville Magisterial District, Albemarle County, Commonwealth of Virginia,
as described hereinabove.
E. Grantor and Grantee have the common purpose of conserving in perpetuity the
Property's values as natural habitat and as open -space land in the public interest.
F. The Commonwealth of Virginia has authorized the creation of conservation
easements pursuant to the Virginia Conservation Easement Act, Virginia Code
§10.1-1009 et seq. (the "Conservation Easement Act"), and Grantor and Grantee
wish to avail themselves of the provisions of that law.
G. As required under §10.1-1010(E) of the Conservation Easement Act, the use of
the Property for open -space land conforms to the County of Albemarle
Comprehensive Plan 1996-2016 (the "Comprehensive Plan'), as more particularly
set forth in this paragraph. The Open Space Resources section of the
Comprehensive Plan identifies as its primary goal the protection of "the County's
natural, scenic, and historic resources in the Rural Area and Development Areas"
(p. 7). The Rural Areas Plan of the Albemarle County Comprehensive Plan
adopted on March 2, 2005, states in its Introduction that: "Agricultural and
forestal resources have been identified as the most critical County resources and
the desired primary land use in the Rural Areas. Such uses play an important and
long-standing role in the environment, heritage, and economy of the County.
Loss of these resources to development is irreversible and irreplaceable.
Stewardship of these resources also provides an opportunity to conserve and
efficiently use other resources such as: (1) water resources (with use of property
conservation techniques); (2) natural, scenic, and historic resources with the
maintenance of pasture land, farmland, and forested areas; and (3) fiscal resources
by limiting development and lessening the need to provide public services to wide
areas of the County'; and
The Rural Areas Plan in its section titled "Guiding Principles For The Rural
Areas" states the following "defining principles":
"i) Agriculture - Protect Albemarle County's agricultural lands as a
resource base for its agricultural industries and for related benefits they
contribute towards the County's rural character, scenic quality, natural
environment, and fiscal health.
ii) Forestry resources - Protect Albemarle County's forests as a
resource base for its forestry industries and watershed protection.
iii) Land Preservation - Permanently preserve and protect Albemarle
County's rural land as an essential and finite resource through public
ownership or through conservation easements.
iv) Land Conservation - Protect Albemarle County's rural land
through planned management of open spaces to prevent exploitation,
destruction, or neglect.
v) Water supply reso - Protect the quality and supply of surface
water and groundwater resources.
vi) Natural resources - Preserve and manage the Rural Areas' natural
resources in order to protect the environment and conserve resources for
future use.
vii) Scenic resources - Preserve the County's rural scenic resources as
being essential to the County's character, economic vitality, and quality of
life.
viii) Historical. archeological and cultural resources - Protect the Rural
Areas' historic, archeological and cultural resources."
The Rural Areas Plan further notes in its section titled "Land Preservation
Or Voluntary Land Conservation" that: "Some landowners are willing to
donate easements that protect important resources by eliminating
development potential. The Virginia Outdoors Foundation and other
organizations hold such easements."
H. This Conservation Easement is intended to constitute a "qualified conservation
contribution" as that tern is defined in §170(h)(1) of the Internal Revenue Code
(references to the Internal Revenue Code in this Conservation Easement shall be
to the United States Internal Revenue Code of 1986, as amended, or the
corresponding provisions of any subsequent Federal tax laws, and the applicable
regulations and rulings issued thereunder) (the `IRC"), as more particularly
described below.
This Conservation Easement is intended to constitute "a restriction (granted in
perpetuity) on the use which may be made of the real property," which is a
"qualified real property interest" under § 170(hx2)(C) of the IRC.
Grantee is a "qualified organization" as defined in §I70(h)(3) of the IRC, and
Grantee is a qualified holder under the Conservation Easement Act, to -wit:
Grantee is a national non-profit corporation exempt from taxation under
§501(c)(3) of the IRC, organized and existing under the laws of the District of
Columbia; Grantee has had a principal office in Virginia for more than five years;
Grantee is organized and operated primarily for the purposes of protecting natural
resources and the natural values of real property, especially the natural habitat of
fish, wildlife, and plants. Grantee has the resources to enforce the restrictions in
this Conservation Easement.
K. This Conservation Easement is granted "exclusively for conservation purposes"
under §170(h)(1)(C) of the IRC because it effects "the protection of a relatively
natural habitat of fish, wildlife, or plants, or similar ecosystem" as provided under
§170(hx4)(A)(ii) of the IRC, as follows:
1) The Property is a significant natural area that qualifies as a "relatively
natural habitat of fish, wildlife, or plants, or similar ecosystem." The
Property contains approximately 5,800 linear feet of frontage along the
Hardware River and 4,900 linear feet of frontage on tributaries to the
Hardware River. The Hardware River is a tributary of the James River
which flows into the Chesapeake Bay. As stated in the Chesapeake 2000
Agreement, signed by the Governor of Virginia and the Administrator of
the U.S. Environmental Protection Agency, "[t)he Chesapeake Bay is
North America's largest and most biologically diverse estuary, home to
more than 3,600 species of plants, fish and animals."
2) This Conservation Easement protects the Hardware River, the James River
and the Chesapeake Bay by, among other things, restricting development,
construction, and commercial timbering activities on the Property, thus
preventing excessive degradation of aquatic habitat. In particular, this
Conservation Easement protects the habitat for aquatic species by (i)
requiring riparian buffers along the Hardware River and its tributaries,
which buffers trap sediments, filter run-off, prevent stream bank erosion,
and generally protect and enhance water quality, and (ii) preventing
certain development and uses of the Property, such as the creation of
excessive impervious surfaces on the Property, that would increase runoff
and pollution and materially impair the habitat for aquatic species in the
James River and the Chesapeake Bay.
3) The terms of this Conservation Easement will protect the ecological values
enumerated above by imposing use restrictions as specified herein that are
more stringent than the zoning ordinance to which the Property is
otherwise subject.
L. In addition, this Conservation Easement is granted "exclusively for conservation
purposes" under §170(h)(lXC) because it complies with the `open space"
conservation purpose test under §170(h)(4)(A)(iii) of the IRC. Specifically, the
preservation of open space on the Property (i) is pursuant to clearly delineated
state and local governmental conservation policies that indicate the type of
property identified by representatives of the general public as worthy of
preservation and (ii) will yield a significant public benefit.
M. The general and specific open space conservation values of the Property and the
clearly delineated governmental conservation policies pursuant to which this
Conservation Easement preserves those values are described below:
1) The Property contains over 10,700 linear feet of frontage along the
Hardware River and tributaries to the Hardware River, which flows into
the James River and Chesapeake Bay. In the Chesapeake 2000
Agreement, the Governor of the Commonwealth of Virginia and the
Administrator of the United States Environmental Protection Agency
acknowledged "that future development will be sustainable only if we
protect our natural and rural resource land, limit impervious surfaces and
concentrate new growth in existing population centers." A goal of the
Chesapeake 2000 Agreement is to "expand the use of voluntary and
market -based mechanisms such as easements ... to protect and preserve
natural resource lands." The Commonwealth of Virginia established the
Virginia Water Quality Improvement Fund, §§10.1-2128 to 10.1-2134 of
the Code of Virginia, in part to meet its commitments under the
Chesapeake Bay Agreement. The Fund provides grants for projects
including "the acquisition of conservation easements related to the
protection of water quality and stream buffers." The 2002-2003 Biennial
Report of the Virginia Land Conservation Foundation, dated January
2004, states that meeting Virginia's land conservation goals under the
Chesapeake 2000 Agreement "requires the conservation of 432,535 acres
by 2010 or 61,791 acres per year... Continued preservation activity by
Virginia's land trusts will also advance progress toward the goals." (pp. 8-
9).
2) Protection of the Property's frontage on the Hardware River and its
tributaries also is consistent with the purposes and policies of the
Chesapeake Bay Preservation Act, §§10.1-2100 to 10.1-2116 of the Code
of Virginia (the "Chesapeake Bay Preservation Acf), which establishes
the Chesapeake Bay Local Assistance Board to promulgate regulations
and criteria for land use controls to protect water quality in the
Chesapeake Bay and its tributaries, including the James River, and
Albemarle County's Water Protection Ordinance, voluntarily adopted by
the County in 1991 pursuant to the Chesapeake Bay Preservation Act,
which ordinance establishes stream buffers along many County streams in
an effort to enhance the quality and health of local streams and rivers and
help in the restoration of the Chesapeake Bay.
3) Albemarle County has specifically recognized the importance of the
continued preservation of the Property as agricultural and forestland by
providing special assessment of the Property for real property tax purposes
under Article VI/l of Chapter 15 of the Albemarle County Code, the
ordinance providing for the special assessment of real estate devoted to
agricultural, horticultural, forest, and open -space use "to encourage the
preservation of rural lands and to relieve development pressures that might
cause rural land conversion." (p. 98 of the Comprehensive Plan).
4) The preservation of the open -space conservation values of the Property as
provided in this Conservation Easement is consistent with and furthers the
governmental policies expressed in Appendix A.1 of the Albemarle
County Code, which establishes Albemarle County's Acquisition of
Conservation Easements Program (the "ACE Program"). The ACE
Program is a funded program through which the County purchases from
willing landowners easements protecting properties that are ranked
according to various factors, including the importance of the conservation
values of the properties. The criteria used to evaluate the conservation
values of applicant properties are derived from the objectives and goals of
the Comprehensive Plan, and as such they provide a clear expression of
the type of property identified by representatives of the general public as
worthy of preservation, the protection of which is likely to provide a
significant public benefit. The Property would achieve a high score under
the ACE Program ranking criteria due to its large size, its adjacency and
proximity to other properties protected by open space easement, the threat
of conversion of the Property to developed use, the Property's significant
frontage on the Hardware River, and the riparian buffers mandated under
this Conservation Easement. The Property's high score under the criteria
of the ACE Program provides a strong indication that the Property is the
type of property identified by representatives of the general public as
worthy of preservation, and that the protection of the conservation values
of the Property as provided in this Conservation Easement is likely to
provide significant public benefits.
5) The terms of this Conservation Easement will protect the open space
values enumerated above by imposing use restrictions that are more
stringent than the zoning ordinance to which the Property is otherwise
subject.
N. Preservation of the open -space characteristics of the Property as provided in this
Conservation Easement will yield the following significant public benefits, taking
into consideration factors suggested in Tress. Reg. § 1.170A-14(d)(4)(iv)(A):
i) Existing and foreseeable development trends in the vicinity of the Properly
indicate that development pressure exists and can be expected to increase
in the future. The Charlottesville/Albemarle area has a history of steady
economic and population growth, which should continue into the
foreseeable future. The Property is particularly susceptible to
development because of its proximity to Charlottesville and Scottsville,
and its rolling topography, scenic views, and existing interior road
infrastructure. This Conservation Easement protects the Property from
intensive residential and commercial development, particularly
subdivision into as many as 31 residential parcels and the construction of
roads, homes, and other structures on those parcels. Such intensive
development would (i) impair the general open -space character of the
Property, (ii) degrade the forest that provides a buffer for the Hardware
River and its tributaries, and (iii) cause excessive erosion, runoff, and
pollution, degrading the water quality of the Hardware River, the James
River, and the Chesapeake Bay.
2) As described above, the preservation of the open space character of the
Property is highly consistent with the criteria used to rank the conservation
value of applicant parcels in the ACE Program, Albemarle County's
legislatively mandated, funded program through which the County
identifies particular parcels of land for protection for conservation
purposes.
3) The Property abuts property protected by a conservation easement held by
the Virginia Outdoors Foundation. in addition, there are several other
properties in close proximity to the Property that are currently protected
by conservation easements.
4) Because of the Property's susceptibility to much more intensive
development than is allowed under this Conservation Easement, Grantee's
opportunities to acquire equally desirable and valuable substitute
easements are extremely limited.
0. The characteristics and condition of the Property as of the date of this
Conservation Easement, the Property's current uses, and the current state of
improvements on the Property are described in a report prepared by Grantee for
Grantor entitled `Baseline Report of Jefferson Mill/Last Resort Farm
Conservation Easement," dated December 13, 2006 (the `Baseline Report").
Grantor and Grantee hereby acknowledge that the Baseline Report is a complete
and accurate representation of the Property as of the date of this Conservation
Easement. The Baseline Report contains a statement signed by Grantor and a
representative of Grantee as required under Tress. Reg. § 1.170A-14(g)(5)(i). The
Baseline Report will be used by Grantor and Grantee to assure that any future
changes in the use of the Property will be consistent with the terms of this
Conservation Easement. However, the Baseline Report is not intended to preclude
the use of other evidence to establish the present condition of the Property if there
is a controversy over its use.
NOW, THEREFORE, Grantor, for and in consideration of the facts recited
above and of the mutual covenants, terms, conditions and restrictions contained herein
and as an absolute and unconditional gift, hereby gives, grants and conveys unto Grantee
a Conservation Easement in perpetuity over the Property of the nature and character as
follows:
1. PURPOSES. The purposes of this Conservation Easement are as follows: to
ensure that the Property will be retained forever predominantly in its natural and scenic
condition; to protect water quality within the James River watershed; to protect native
plants, animals, or plant communities on the Property; to prevent any use of the Property
that will significantly impair or interfere with the conservation values of the Property
described above, while allowing for traditional uses on the Property that are compatible
with and not destructive of the conservation values of the Property, such as farming of
existing pastures and fields, limited residential use, forest management, hunting,
recreation, and fishing.
Grantor will not knowingly perform, nor knowingly allow others to perform, any
act on or affecting the Property that is inconsistent with the purposes of this Conservation
Easement. Nothing in this Conservation Easement shall require Grantor to take any
action to restore the condition of the Property after any act of God or other event over
which Grantor had no control. Grantor understands that nothing in this Conservation
Easement relieves them of any obligation or restriction on the use of the Property
imposed by law. Grantor and Grantee acknowledge and agree that actions taken to
comply with applicable laws shall not constitute a breach or default of the terms,
covenants, conditions and/or restriction of the Conservation Easement by Grantor.
2. PROPERTY USES. Any activity on or use of the Property inconsistent with the
purposes of this Conservation Easement is prohibited. Without limiting the generality of
the foregoing, the following is a listing of activities and uses which are expressly
prohibited or which are expressly allowed. The Conservation Easement divides the
Property into four areas: Building Envelopes, Agricultural Areas, Forested Areas and
Buffer Areas, which areas are depicted in Exhibit D. Grantee has determined that the
activities and uses allowed in each defined area and the additional retained rights of
Grantor set forth in Paragraph 4 below do not impair the conservation values of the
Property and are expressly deemed consistent with the purposes of this Conservation
Easement.
2.1 Subdivision.
(a) The property shall not be further divided or subdivided. Provided,
however that the transfer or conveyance of either Last Resort Farm or the
Jefferson Mill Property to a third party shall not be considered a subdivision of
the Property. Any parcel transferred or conveyed shall remain subject to the
terms of this Conservation Easement.
(b) Boundary line adjustments with adjoining parcels of land are permitted
and shall not be considered prohibited divisions of the Property, provided that any
portion of the Property so conveyed shall remain subject to the terms of this
Conservation Easement, and at least one of the following conditions is met:
(i) The entire adjacent parcel is subject to an existing, recorded
conservation easement held by Grantee, provided that Grantee is
notified in writing prior to the completion of any such boundary
line adjustment; or
(ii) The proposed boundary line adjustment is reviewed and approved
in advance by Grantee, such approval not to be unreasonably
withheld, conditioned or delayed.
2.2 Footprint of Improvements. The Footprint of Improvements on the Jefferson Mill
Property shall not exceed fifteen thousand (15,000) square feet and the Footprint
of Improvements on Last Resort Farm shall not exceed twenty-two thousand
(22,000) square feet. Grantee may permit the construction of Improvements
exceeding the Footprint imposed under this paragraph provided that Grantor
mitigates for the effects of any Improvements exceeding such limit in accordance
with a written mitigation plan approved in advance in writing by Grantee.
Mitigation shall include, but not be limited to, stormwater capture and infiltration
in the immediate vicinity of Improvements that exceed this limitation.
2.3 Building Envelopes
(a) Building Envelopes are areas in which Grantor has the right to construct or
maintain Improvements subject to the limitation contained in Paragraph 2.2
without the further consent of Grantee, including the right to build Residences and
associated appurtenances such as lawns, gardens and other similar permeable
appurtenances (which do not constitute a portion of the Footprint otherwise
allocable as Improvements or Residences).
(b) There shall be no more than four (4) Building Envelopes located on the
Jefferson Mill Property. The collective acreage of the Jefferson Mill Property
covered by or contained within the permitted Building Envelopes shall not exceed
seven (7) acres. Two (2) Building Envelopes associated with existing Residences
shall be deemed to exist as of the date of this Conservation Easement. Of the two
existing Building Envelopes, one shall not exceed three (3) acres in size, and one
shall not exceed two (2) acres in size. Grantor shall have the right to distribute
the remaining two (2) acres of Building Envelope into no more than two (2)
additional Building Envelopes after the date of this Conservation Easement.
(c) There shall be no more than five (5) Building Envelopes located on Last
Resort Farm. The collective acreage of Last Resort Farm covered by or contained
within the permitted Building Envelopes shall not exceed nine (9) acres. Two (2)
Building Envelopes associated with existing Residences shall be deemed to exist
as of the date of this Conservation Easement. Of the two existing Building
Envelopes, one shall not exceed three (3) acres in size, and one shall not exceed
two (2) acres in size. Grantor shall have the right to distribute the remaining four
(4) acres of Building Envelope into no more than three (3) additional Building
Envelopes after the date of this Conservation Easement. One (1) Building
Envelope not to exceed one (1) acre in size is permitted in the Forested Area. All
other Building Envelopes shall be located in the Agricultural Area.
(d) Grantor shall have the right to engage in the following activities within the
Building Envelopes:
(i) Construct and maintain Improvements. All Residences must be
constructed or maintained within the Building Envelopes.
(ii) Engage in activities permitted in Agricultural Areas.
(iii) Disturb the soil, including but not limited to excavation.
(iv) Conduct a home business in the Residence of a person residing on
the Property in accordance with applicable laws, regulations and
ordinances, provided that the home business does not directly harm
the conservation values protected by this Conservation Easement.
(v) Conduct or allow Grantor's designee to conduct and operate a
carpenters shop in a portion of the existing guest house or other
Improvements situated on or about the Jefferson Mill Property
from time to time, in accordance with applicable laws, regulations
and ordinances, provided that the operation does not directly harm
the conservation values protected by this Conservation Easement.
(e) Building Envelopes shall be configured in a manner that can be easily
located on the ground and shall be located in a manner that causes minimal
disturbance as practicable to the conservation values of the Property. Grantee
must consent to the location and configuration of the Building Envelopes prior to
construction of Improvements within the Building Envelopes.
(t) Outside the Building Envelopes, Grantor may construct Improvements or
expand existing Improvements only with the written consent of Grantee prior to
construction.
2.4 Agricultural Areas. Grantor shall have the right, for commercial purposes or
otherwise, to engage in agricultural activities only in Agricultural Areas and/or
within Building Envelopes.
(a) Agricultural activities shall include the right to:
(i) Breed, raise, keep and pasture livestock;
(ii) Breed and raise bees, poultry and other fowl;
10
(iii) Plant, raise and harvest crops, including vegetable, herb and flower
gardens, and orchards;
(iv) Perform primary processing and storage of crops and products
harvested and produced principally on the Property;
(v) Board and keep horses for use by Grantee and others;
(vi) Lease portions of the Property to others engaging in an approved
agricultural use;
(vii) Engage in silvicultural practices;
(viii) Extract surface and subsurface water necessary to accommodate
permitted activities;
(ix) Ride and permit others to ride horses and use motorized vehicles;
(x) Employ conservation measures approved by any governmental
authority and install agricultural BMPs to protect environmental
quality as new techniques and technologies are developed; and
(xi) Construct Roads and install associated culverts necessary to
accommodate permitted Improvements. The surface of Roads
shall be no more than fifteen (15) feet in width, and an area of no
more than thirty (30) feet in width may be cleared of natural
vegetation in the construction of Roads. Any culverts shall be
within the thirty (30) foot cleared area unless Grantee has
consented in writing in advance. Culverts shall not be included
when calculating the surface width of any Roads. Land cleared in
the construction of the Road (excluding the road itself) shall be re-
forested or re -vegetated as soon as possible following construction.
(xii) Install Utilities necessary to accommodate permitted
Improvements on the Property except that there shall be no new
underground fuel tanks.
(b) These rights shall be subject to the following limitations:
(i) Grantor may only plant, raise, and harvest fruit trees or vines for
commercial purposes pursuant to an Agriculture Management
Plan, to be updated at least every (10) years.
(ii) Grantor may breed, mise, or pasture cattle, horses, sheep, and goats
provided that the density of animals does not exceed one (1)
I
Animal Unit for three (3) acres of Agricultural Areas. If the
number of animals per acre exceeds one (1) Animal Unit per three
(3) acres, Grantor may only graze and pasture the above referenced
domestic animals pursuant to a Grazing Plan, to be updated at least
every ten (10) years. The allowance of additional species of
pastured domestic animals on the Property is at the discretion of
Grantee and requires prior written consent of Grantee.
(iii) Grantor may breed, raise, and pasture swine, dairy cattle, poultry
and fowl provided that the numbers of such animals on the
Property shall not constitute the operation of a Hog Farm, Dairy
Operation, or Poultry House.
2.5 Forested Areas.
(a) Protection of Forested Areas. In order to maintain the unfragmented
condition and natural habitat of the Forested Areas, the existing forested acreage
(to the extent it is not located within the specified area of any Building Envelope)
shall remain forested, and shall be excluded from livestock usage except as
otherwise permitted herein.
(b) Forest Management Activities. Grantor reserves the right to conduct
forest management activities in Forested Areas, for commercial purposes or
otherwise, provided that such forest management follows a Forest Management
Plan and is conducted under the supervision of a professional forester or Grantee.
Forest management includes all activities related to the establishment, growth,
maintenance, cutting, destruction and removal (including the use of biocides) of
trees, shrubs, or plants on the Property and primary processing of trees, shrubs, or
plants harvested on the Property. Grantee reserves the right to waive, in writing,
the required Forest Management Plan or portions thereof if Grantee determines
that the proposed forest management activity does not warrant development of a
complete plan.
(c) Permitted Activities. Notwithstanding the foregoing, Grantor shall have
the right to engage in the following activities within the Forested Areas created
under this paragraph without a Forest Management Plan:
(i) Immaterial harvesting of timber solely to provide firewood for
Residences allowed on the Property;
(ii) Cutting of emergency firebreaks;
(iii) Removal of Invasive Plants;
(iv) Removal of dead or diseased trees that pose a safety hazard;
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(v) Cutting and removal of trees, shrubs or plants to accommodate the
activities expressly permitted under this Conservation Easement;
(vi) Travel along Trails in electrical carts or other environmentally
friendly motorized vehicles as reasonably approved by Grantee;
and
(vii) Cutting vegetation in three (3) locations (shown on Exhibit D to
maintain these as cleared areas.
(d) Forest Management Obiectives. All forest management activities
undertaken on the Property, including the provisions of the written Forest
Management Plan, shall be guided by the following objectives:
(i) Maintain biological diversity, native plant and animal species, and
the ecological processes that support them.
(ii) Promote the recruitment and retention of a forest canopy and
understory of native tree species and species composition (i.e.,
forest community type) that is likely to occur on the site under
natural biological and physiological processes.
(iii) Maintain soil productivity and prevent erosion.
(iv) Enhance and protect water quality.
(v) Prevent and/or control the infestation of Invasive Plants and
Invasive Animals that threaten the health of the forest
(e) Forest Management Plan Approval. As a condition to exercising its
reserved right to conduct forest management activities other than as permitted
under Paragraph 2.5(c), Grantor shall submit the Forest Management Plan to
Grantee for review and approval as to compliance with the terms of the
Conservation Easement. Prior to the development of such plan, Grantor and
Grantee shall meet to share information relevant to the planning process. Upon
receiving Grantor's Forest Management Plan, Grantee shall have ninety (90) days
to complete its review. These requirements, including Grantee's review and
approval, shall also apply to the periodic updates to the Forest Management Plan.
Such approvals shall not be unreasonably withheld, conditioned, or delayed.
Forest management activities are prohibited unless conducted in accordance with
a valid Forest Management Plan.
(f) Updates to the Forest Management Plan. The Forest Management Plan
shall remain valid for ten (10) years from the date of approval by Grantee. The
Forest Management Plan may be updated, with each updated plan also covering a
period of ten (10) years. Interim updates to the Forest Management Plan are
13
permitted to address a specific land or forest management concern. 10-Year or
interim updates shall be subject to approval under the provisions of Paragraph
2.5(e).
(g) Harvesting Restrictions. The following harvesting restrictions apply to the
Property:
(i) Highgrading harvest practices are prohibited.
(ii) The harvesting of timber is prohibited from April 15 to May 30 to
prevent excessive damage to standing timber and to protect nesting
birds.
(iii) A Harvest Plan must be submitted to Grantee for its approval at
least thirty (30) days prior to any harvest of timber in the Forested
Areas. No commercial forest management activity may occur until
the Forest Management Plan and a more specific Harvest Plan
have been approved by Grantee. Grantee reserves the right to
waive, in writing, the required Harvest Plan, if, in consultation
with Grantor, it determines that the proposed harvest of timber is
de minimus.
(iv) Grantee's approval of the Harvest Plan shall not be unreasonably
withheld, but may be withheld or conditioned if prescribed actions
may compromise the conservation values of the Property, or if it
does not adequately address all required items listed above or other
issues pertinent to the intent of this Conservation Easement.
(v) All forest management and harvesting activities on the Property
must meet or exceed currently accepted silvicultural best
management practices, as set forth in "Virginia's Forestry Best
Management Practices for Water Quality (Virginia Department of
Forestry, 2002)" and its successors.
(h) New Roads. Grantor shall have the right to construct new Roads and
install associated bridges and culverts. The construction of Roads and associated
bridges and culverts in the Forested Areas requires the written consent of Grantee
not to unreasonably withheld, or must be contained in an approved Forest
Management Plan and must meet or exceed silvicultural best management
practices, as set forth in "Virginia's Forestry Best Management Practices for
Water Quality (Virginia Department of Forestry, 2002)" and its successors.
(i) New Utilities. Grantor shall have the right to install Utilities necessary to
accommodate permitted Improvements on the Property except that there shall be
no new underground fuel tanks on the Property. The construction of Utilities in
the Forested Areas requires the written consent of Grantee, not to be unreasonably
14
withheld. Utilities shall be located in a manner that causes minimal disturbance
as practicable to the conservation values of the Property.
0) Motorized vehicles are prohibited in the Forested Areas except on
permitted Roads or pursuant to an approved Harvest Plan, except with respect to
travel along Trails in electrical carts or other environmentally friendly motorized
vehicles as reasonably approved by Grantee.
2.6 Buffer Areas.
(a) In order to protect aquatic habitats and water quality, within the Buffer
Areas, there shall be:
(i) No constructing or placing of any Improvements. Existing
Improvements and Constructed Features, if any, which exist within
the Buffer Areas as of the date of execution of this Conservation
Easement may be maintained, repaired and replaced, but not
enlarged.
(ii) No constructing or placing of any Roads, Trails, or Utilities.
Roads, Trails, or Utilities existing in the Buffer Areas as of the
date of this Conservation Easement may be maintained or repaired,
but not enlarged.
(iii) No livestock. If livestock are kept or maintained on the Property,
they shall be excluded from the Buffer Areas by fencing to be
installed and maintained by Grantor. Grantor shall have a twelve
(12) month grace period commencing on the date this
Conservation Easement is recorded in the Clerk's Office of the
Circuit Court of Albemarle County, Virginia to remove existing
livestock from the Buffer Areas.
(iv) No removal, destruction, or cutting of trees, shrubs, or plants.
(v) No use of fertilizers.
(vi) No use of biocides.
(vii) Motorized vehicles are prohibited within Buffer Areas except on
permitted Roads or as expressly permitted herein.
(b) Notwithstanding the foregoing, the following activities are permitted
within the Buffer Areas:
(i) Grantor shall have the right to construct docks, and storage or
changing structures located along the banks of the Hardware
15
River, subject to the written consent of Grantee prior to the
construction and installation thereof, such approval not to be
unreasonably withheld, conditioned or delayed, and thereafter
such approved structures may be maintained, repaired and
replaced, but not enlarged.
(ii) Grantor shall have the right to cut vegetation in existing cleared
areas along the river as shown in Exhibit D and the Baseline
Report to maintain these as cleared areas or river access points.
Clearing of vegetation to create new access points requires prior
written consent of Grantee.
(iii) Grantor shall have the right to construct Roads or Trails in the
Buffer Areas to access the structures permitted under Paragraph
2.6(bxi) and/or to access cleared areas permitted under Paragraph
2.6(b)(ii), subject to the written consent of Grantee prior to the
construction and installation thereof, such approval not to be
unreasonably withheld, conditioned or delayed, and thereafter
such approved Roads or Trails in the Buffer Areas may be
maintained, repaired and replaced, but not enlarged.
(iv) Grantor shall have the right to conduct twice yearly burning,
mowing or haying provided such burning, mowing or haying (A) is
in a designated area of the Buffer Areas as shown on Exhibit D,
(B) is conducted between August I and the end of the growing
season, (C) leaves a grass height of at least six (6) inches if mowed
or hayed; and (D) trees four (4) inches in diameter or greater at
breast height are preserved. If native trees or shrubs are planted in
the Buffer Areas after the date of this Conservation Easement,
Grantor must conduct mowing and/or haying operations so as to
avoid cutting or otherwise damaging plantings.
(v) Grantor shall have the right to remove Invasive Plants and Invasive
Animals and shall have the right to use biocides in these efforts.
2.7 General Requirements. The following requirements apply to all activities and
uses of the Property unless an exception is specifically provided.
(a) Existing Improvements and Constructed Features. Grantor shall have the
right to maintain, remodel, and repair Existing Improvements and Constructed
Features on the Property (as described and detailed in the Baseline Report), and in
the event of their destruction, to reconstruct any such Existing Improvement or
Constructed Feature with another of similar size, function, capacity, location and
material.
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(b) Utilities. Grantor may not consent to the construction or placement of
Utilities on the Property that serve entities and/or users located off the Property (a
communications tower for example) without the prior written consent of Grantee.
Grantee's consent shall only be granted if the construction or placement of such
Utilities would not undermine the conservation values of the Property or would
produce a smaller impact than if those Utilities were located on an adjoining or
nearby property.
(c) Trails. Grantor shall have the right to construct Trails on the Property of
reasonable extent to provide non -motorized access to areas of the Property and/or
to accommodate recreational activities and to allow travel along such Trails in
electrical carts or other environmentally friendly motorized vehicles as reasonably
approved by Grantee. Trails shall be no more than four (4) feet in width and shall
be either unimproved paths or shall be constructed of permeable materials.
(d) Recreational Uses. Grantor shall have the right to engage in and permit
others to engage in recreational uses of the Pmperty, including, without limitation,
hunting, fishing, hiking, biking and equestrian activities that require no surface
alteration or other development of the land, do not harm riparian or aquatic
habitats, or which occur on or within Improvements permitted under Paragraph
2.2, Roads permitted under Paragraph 2.4(axxi) and Paragraph 2.5(h), and/or
Trails permitted under Paragraph 23(c). Pursuit of wildlife by any form of
motorized transportation is not allowed. In order to qualify this Conservation
Easement for treatment under Internal Revenue Code Section 2031(cx8)(B) any
use of the Property for more than a de minimis use for a commercial recreational
activity is prohibited.
(e) Commercial Use and Development. Unless otherwise provided for herein,
any commercial or industrial use of, or activity on, the Property is prohibited.
(f) Invasive Plants and Invasive Animals. Grantor may not intentionally
introduce Invasive Plants or Invasive Animals to the Property or water bodies
occurring on the Property, except with respect to Invasive Plants located within
areas of Building Envelopes containing lawns, non-commercial vegetable, herb
and flower gardens, non-commercial orchards, or other similar permeable
appurtenances; provided, however, that Grantee may give consent for such
introduction to address a defined land management concern, such as short-term
erosion mitigation using annual grasses.
(g) Land Disturbance. Except as necessary to accommodate the activities
permitted under this -Conservation Easement, there shall be no change in the
topography of the Property, or disturbance of the soil in any manner. In no event
shall mining or hydrocarbon extraction be permitted on the Property.
(h) Water Management. Except as necessary to accommodate the activities
expressly permitted under this Conservation Easement, there shall be no
17
alteration, pollution, or extraction of surface or subsurface water, including
wetlands.
(i) No Dumoin¢. There shall be no dumping of trash, garbage, or other
unsightly or offensive material, hazardous substances, or toxic waste on the
Property. Nothing in this Paragraph shall prevent the storage (in reasonable
quantities, solely for use on the Property) and use of hazardous materials for
agricultural and domestic purposes, the creation of brash piles, composting, or the
storage of operable farm machinery, organic matter, agricultural products or
byproducts as long as such practices are conducted in accordance with applicable
laws and regulations.
0) Animal Control. Grantor shall have the right to control, destroy, or trap
predatory and problem animals which pose a material threat to livestock, humans,
and/or property or constitute household vermin. Except with respect to household
vermin and other small animals that cannot be practically controlled by selective
methods, Grantor shall remove problem animals using methods selective and
specific to individual animals, rather than broadcast, nonselective methods.
(k) Ecological Restoration Activities. If Grantee reasonably determines that
such activities are consistent with the purposes of this Conservation Easement,
Grantee may, subject in any event to Grantor's prior written consent, engage, and
permit others to engage, in restoration activities, pertaining to, without limitation,
wetlands, stream banks, riparian areas, Invasive Plant infestations, or fire regime.
(1) Signs e. No signs or billboards or other advertising displays are allowed
on the Property, except that signs whose placement, number and design do not
significantly diminish the scenic character of the Property may be displayed to
state the name and address of the Property and the names of persons living on the
Property, to advertise or regulate permitted on -site activities, to advertise the
Property for sale or rent, and to post the Property to control unauthorized entry or
use.
(m) Outdoor Lighting. Outdoor lighting is permitted provided (1) it is placed
no more than twenty (20) feet high, except when used to illuminate porches,
verandas and other exterior areas of any improvements that are located more than
twenty (20) feet high in which case such lighting shall be permitted in these
locations, (ii) it is located in Building Envelopes, Agricultural Areas, or along
Roads, and (iii) all lamps other than moderate intensity porch lights are fully
shielded, such that all light emitted by the fixture is directed toward the ground.
Use of mercury vapor lights is prohibited.
2.8 Consent.
(a) For those activities that require the consent of Grantee, Grantor shall
submit plans to Grantee for its review. The plans shall be sufficiently detailed to
18
allow Grantee to fully evaluate the activity's conformance to the Conservation
Easement, including but not necessarily limited to location and size of the
proposed Improvements or Constructed Features. No activity requiring consent
may take place until Grantee reviews and approves the plans. The plans will be
deemed approved unless Grantee objects in writing, within thirty (30) days of
receipt of complete plans, setting forth with specificity Grantee's grounds for
objections. Grantee agrees that if the activity is consistent with the terms and
provisions of this Conservation Easement, Grantee's approval shall not be
unreasonably withheld, conditioned, or delayed.
(b) The following paragraphs contain activities that require the reasonable
consent of Grantee:
(i) Paragraph 2.3(e) — location and configuration of Building
Envelopes;
(ii) Paragraph 2.3(f) — construction and expansion of Improvements
outside Building Envelopes;
(iii) Paragraph 2.4(b)(ii) — allowance of pastured domestic animals
other than cattle, horses, sheep, and goats;
(iv) Paragraph 2.5(h) - construction of Roads and associated bridges
and culverts in the Forested Areas;
(v) Paragraph 2.5(i) - construction of Utilities in the Forested Areas
(vi) Paragraph 2.6(b)(i) - construction of docks and storage or changing
structures along the river in Buffer Areas;
(vii) Paragraph 2.6(b)(ii) — cutting of vegetation along the river to create
river access points;
(viii) Paragraph 2.6(b)(iii) — construction of Roads or Trails in Buffer
Areas;
(ix) Paragraph 2.7(b) - construction of Utilities that serve users located
off the Property; and
(viii) Paragraph 2.7(f) - introduction of Invasive Plants.
2.9 Density. Neither the Property nor any portion of it shall be included as part of the
gross area of other property not subject to this Conservation Easement for the
purposes of determining density, lot coverage, or open space requirements under
otherwise applicable laws, regulations or ordinances controlling land use and
building density. No development rights that have been encumbered or
extinguished by this Conservation Easement shall be transferred to any other
lands pursuant to a transferable development rights scheme, cluster development
arrangement or otherwise; provided, however, that with prior written permission
of Grantee, this paragraph shall not preclude such transfer of development rights
resulting from the destruction or demolition of any existing residential building on
the Property.
3. DEFINITIONS. As used in this Conservation Easement:
A. Agricultural Areas — Those existing agricultural fields on the Property as
shown in Exhibit D, and as described and depicted graphically in the Baseline
Report and any alterations in the area thereof, as agreed to in writing by Grantor
and Grantee.
B. Agriculture Management Plan — A plan written to cover a period of ten
(10) years designed to protect soil stability, water quality, and other conservation
values of the Property, including but not limited to an integrated chemical
management plan, that is prepared by an agriculture management specialist and
approved by Grantee.
C. Animal Unit — An Animal Unit ("AU'7 equals 1,000 pounds of animal
body weight. For purposes of this Conservation Easement, the following Animal
Units shall apply to grazing animals: adult beef cattle: 1.0 AU; calves: 0.5 AU;
adult horses: 1.5 AU; colts (<2 years): 0.5 AU; sheep: 0.2 AU; goats: 0.2 AU.
D. Buffer Areas — Those areas of the Property located within one hundred
(100) feet of the Hardware River and all permanent and intermittent streams as
measured from the edge of the stream or feature under normal conditions; and
additional designated areas of the Property with special conservation significance.
The extent and location of Buffer Areas are shown in Exhibit D and are described
and depicted graphically in the Baseline Report. Buffer Areas may he expanded
as agreed to in writing by the Grantor and Grantee.
E. Building Envelopes — Those areas as shown in Exhibit D and as described
and depicted graphically in the Baseline Report, which areas can be relocated as
agreed to in writing by Grantor and Grantee, in which Grantor retains specific
rights as more fully described in this Conservation Easement, including the right
to construct Improvements (defined below).
F. Dairy Operation - An enclosed structure or area that regularly houses more
than six (6) head of adult dairy cattle.
G. Existing Improvements and Constructed Features — Those existing
structures, facilities, header dams, Utilities (defined below), Roads (defined
below), Trails (defined below), and other man-made additions to the natural
20
environment located on the Property as of the date of this Conservation Easement
and described and depicted in the Baseline Report.
H. Footprint — The ground area, as measured in square feet, covered or
overhung by an Improvement (defined below), including any area covered by an
overhanging roof or attached patio, deck, or porch.
I. Forest Management Plan - A plan prepared by Grantee or professional
forester reasonably approved by Grantee written to cover a period of ten (10)
years and including, as a minimum:
(1) A statement of Grantor's forest management goals and objectives;
(2) A forest type map showing predominant topographic and
hydrographic features, forest stands, existing Roads, the
approximate location of future Roads such as they might be
anticipated at the time the Forest Management Plan is written,
other Improvements, scale, and north arrow;
(3) Forest stand descriptions and locations at a forest stand level
suitable for guiding forest management pursuant to this
Conservation Easement including species composition, stocking
levels, site classes, age classes or age class structure, and volumes
and, where available, soil types;
(4) A detailed description of management actions to be employed to
accomplish each of the forest management objectives stated (as
enumerated in Paragraph 2.5(d);
(5) If timber harvest is planned or anticipated during the term of the
Forest Management Plan, a discussion of the pre -harvest planning
process that includes, but is not limited to:
(a) A description of the silvicultural goals and options to be
used, by forest type;
(b) If the harvest is a regeneration cut, regeneration standards
to be followed, by forest type;
(c) The methodology for determining the appropriate
silvicultural prescription for harvesting/silvicultural activity
to be conducted; and
(d) Strategies to identify and conserve threatened or
endangered species, unique habitats, cultural and
9
archaeological sites, and forested wetland and streamside
buffers, including a description and map of such features.
J. Forested Areas — Those forested or wooded areas of the Property as shown
in Exhibit D and as described and depicted in the Baseline Report and any
alterations in the area thereof, as agreed to in writing by Grantor and Grantee.
K. Grazing Plan — A plan written to cover a period of ten (10) years designed
to ensure the maintenance of a good quality mix of grasses, while protecting soil
stability, water quality and other conservation values of the Property, prepared by
the Natural Resources Conservation Service (or its successors) or other pasture
management specialist, and approved by Grantee.
L. Harvest Platt — A plan approved by Grantee prior to the removal of timber
from the Property that includes the following:
(1) A statement signed by the forester preparing the Harvest Plan
acknowledging that management activities follow the terms of this
Conservation Easement and the Forest Management Plan and will
be supervised by the forester;
(2) Description of access to proposed timber sale area and any
constraints to that access;
(3) Descriptive map(s) of all management areas, including logging
deck(s), skid trails, Roads, streams, Buffer Areas, stream crossings,
and areas of special concern;
(4) Timber inventory in targeted management areas with volume,
stocking, and species data, and projected yields. Inventory may be
estimated or omitted with prior approval of Grantee in cases where
it is not deemed necessary (such as pre -commercial thinning).
(5) An inventory and description of protection methods for rare,
threatened or endangered species and other unique natural,
geological or historic resources in targeted management areas
which may require special treatment;
(6) A smoke management plan if fire is to be prescribed;
(7) Aesthetic and recreational considerations including impacts on
views from public roads.
(8) Plan for post -cutting treatments, including the re -vegetation of skid
Roads and logging decks with non -Invasive Plant seed mixes.
22
M. Highgrading - A timber harvest practice that results in the removal of only
certain species of trees above a certain size or of high value, leaving residual
stands composed of trees of poor condition or species composition, through which
the forest may become depleted over time of the best genetic growing stock.
N. Hog Farm - An enclosed structure or area that regularly houses more than
four (4) head of swine older than six (6) weeks.
O. Improvements - Improvements consist of any building, structure, or man-
made addition to the Property, including but not limited to Residences (defined
below), out -buildings, sheds, bams, tree -houses, house and office trailers, tennis
and other recreation courts, and swimming pools placed, built, or constructed on
the Property. For the purposes of this definition, Improvements do not include
Roads (defined below), Trails (defined below), Utilities (defined below), fences,
signs, or movable items not affixed to real estate that have a de minimis impact on
ground area.
P. Invasive Animals - Animals, including pests and pathogens, identified on
the most current list promulgated by the Commonwealth of Virginia or the federal
government, which Grantee shall notify Grantor is the list that shall be binding on
Grantor for purposes of this Conservation Easement.
Q. Invasive Plants - Plants included on the most current list of Virginia
Department of Conservation and Recreation's 'Invasive Alien Plant Species of
Virginia" or, if such list ceases to be published, a similar list promulgated by the
Commonwealth of Virginia or the federal government, which Grantee shall notify
Grantor is the list that shall be binding on Grantor for purposes of this
Conservation Easement. For purposes of this definition, Invasive Plants do not
include the following: tall fescue, timothy grass, and orchard grass
R. Poultry House - An enclosed structure or area that regularly houses more
than one hundred (100) head of poultry or fowl greater than one (1) month old.
S. Residence - An Improvement used for human habitation regardless of the
number of days per year inhabited; a dwelling.
T. Roads - Those access roads, driveways, or improved paths used to provide
access to and within the Property by motorized and non -motorized means. The
locations of existing Roads are shown in Exhibit D and described and depicted
graphically in the Baseline Report.
U. Trails - Those trails and paths used to provide access to and within the
Property by non -motorized means only (except for electrical carts or other
environmentally friendly motorized vehicles as reasonably approved by Grantee).
The locations of existing Trails are described and depicted graphically in the
Baseline Report.
23
V. Utilities — Those structures or facilities necessary to supply power, water,
sewage disposal, and other amenities. Utilities include but are not necessarily
limited to power lines, poles, personal wind turbines, and associated electrical
hardware; underground heating and cooling systems; water wells and associated
distribution lines; septic tanks, septic fields, and distribution boxes; antennas,
satellite dishes, and cable lines.
4. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the
following additional rights:
4.1 Existing Uses. The right to undertake or continue any activity or use of the
Property not prohibited by this Conservation Easement. Prior to making any
material change in use of the Property, Grantor shall notify Grantee in writing to
allow Grantee a reasonable opportunity to determine whether such change would
violate the terms of this Conservation Easement.
4.2 Transfer . The right to sell, give, mortgage, lease, or otherwise convey all or,
subject to Paragraph 2.1 hereof, a portion of the Property subject to the terms of
this Conservation Easement
5. GRANTEE'S RIGHTS. To accomplish the purpose of this Conservation
Easement, the following rights are granted to Grantee by this Conservation Easement:
5.1 Right to Enforce. The right to preserve and protect the conservation values of the
Property and enforce the terms of this Conservation Easement.
5.2 Right of Entry. The right of Grantee's staff, contractors and associated natural
resource management professionals to enter the Property after prior reasonable
written notice to Grantor, for the purposes of:
(i) Inspecting the Property to determine if Grantor is complying with the
covenants and purposes of this Conservation Easement;
(ii) Monitoring and research as described below;
(iii) Management of Invasive Plants and Invasive Animals as described below;
and
(iv) Enforcing the terms of this Conservation Easement
Prior written notice is not required if Grantee is entering upon the Property because of an
ongoing or imminent violation that could, in the reasonable discretion of Grantee,
substantially diminish or impair the conservation values of the Property, as described in
Paragraph 8 herein. Such right of entry shall include the permanent right to cross other
lands of Grantor for access to the Property.
24
5.3 Monitoring and Research. The right, but not the obligation, to monitor the plant
and wildlife populations, plant communities and natural habitats on the Property.
Grantor shall cooperate with Grantee in establishing, at no expense to Grantor, a
written monitoring and research plan to direct the monitoring of and research on
plant and wildlife populations, plant communities and natural habitats on the
Property. Grantor agrees that all monitoring activity, natural resource inventory
and assessment work or other natural resource research, conducted by Grantor or
others, shall be reported to Grantee.
5.4 Management of Invasive Plants and Invasive Animals. The right, but not the
obligation, to control, manage or destroy Invasive Plants and Invasive Animals
that threaten the conservation values of the Property. Grantee may exercise this
right only with prior written prior consent of Grantor.
5.5 Discretionary Consent. Grantee's consent for activities otherwise prohibited
under Paragraph 2 above may be given under the following conditions and
circumstances. If, owing to unforeseen or changed circumstances, any of the
prohibited activities listed in Paragraph 2 are deemed desirable by both Grantor
and Grantee, Grantee may, in its sole discretion, give permission for such
activities, subject to the limitations herein. Such requests for permission shall be
in writing and shall describe the proposed activity in sufficient detail to allow
Grantee to judge the consistency of the proposed activity with the purpose of this
Conservation Easement. Grantee may give its permission only if it determines, in
its sole discretion, that such activities (i) do not violate the purpose of this
Conservation Easement and (ii) either enhance or do not impair any significant
conservation interests associated with the Property. Notwithstanding the
foregoing, Grantee and Grantor have no right or power to agree to any activities
that would result in the termination of this Conservation Easement.
6. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED.
Other than as specified herein, this Conservation Easement is not intended to impose any
legal or other responsibility on Grantor, or in any way to affect any existing obligation of
Grantor as owners of the Property. Among other things, this shall apply to:
(i) Taxes. Grantor shall be solely responsible for payment of all taxes and
assessments levied against the Property.
(ii) UUpkeeo and Maintenance. Grantor shall be solely responsible for the
upkeep and maintenance of the Properly, to the extent it may be required
by law. Grantee shall have no obligation for the upkeep or maintenance of
the Property.
7. ACCESS. No right of access by the general public to any portion of the Property
is conveyed by this Conservation Easement.
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8. ENFORCEMENT. If Grantee becomes aware of a violation of the terms of this
Conservation Easement, Grantee shall give notice to Grantor of such violation and
request corrective action sufficient to abate such violation and restore the Property to its
previous condition at the time of this grant. Grantor agrees that the Baseline Report, also
known as a Baseline Documentation Report, shall be deemed to provide objective
information concerning the Property's condition at the time of this grant. Failure by
Grantor to abate the violation and take such other corrective action as may be requested
by Grantee within thirty (30) days after receipt of such notice shall entitle Grantee to
bring an action at law or equity in a court of competent jurisdiction to enforce the terms
of this Conservation Easement; to require the restoration of the Property to its previous
condition; to enjoin the noncompliance by ex parte temporary or permanent injunction in
a court of competent jurisdiction; and/or to recover any damages arising from the
noncompliance. Such damages, when recovered, may be applied by Grantee, in its sole
discretion, to corrective action on the Property. If the court determines that Grantor has
failed to comply with this Conservation Easement, Grantor shall reimburse Grantee for
any reasonable costs of enforcement, including costs of restoration, court costs and
reasonable attorney's fees, in addition to any other payments ordered by such court.
8.1 Emeraenev Enforcement. If Grantee, in its sole reasonable discretion, determines
that circumstances require immediate action to prevent or mitigate significant
damage to the conservation values of the Property, Grantee may pursue its
remedies under this paragraph without prior notice to Grantor or without waiting
for the period for cure to expire.
8.2 Failure to Act or Delay. Grantee does not waive or forfeit the right to take action
as may be necessary to ensure compliance with this Conservation Easement by
any prior failure to act and Grantor hereby waives any defenses of waiver,
estoppel or laches with respect to any failure to act or delay by Grantee, its
successors or assigns, in acting to enforce any restriction or exercise any rights
under this Conservation Easement.
8.3 Violations Due to Causes Beyond Grantor's Control (Force Maieure). Nothing
herein shall be construed to entitle Grantee to institute any enforcement
proceedings against Grantor for any changes to the Property due to causes beyond
Grantor's control or other event of force majeure, such as changes caused by fire,
flood, storm, earthquake, lightning, wind or the unauthorized wrongful acts of
third persons. In the event of violations of this Conservation Easement caused by
the unauthorized wrongful acts of third persons, Grantor agrees, upon request by
Grantee, to assign its right of action to Grantee, to join in any suit, or to appoint
Grantee its attomey-in-fact for the purposes of pursuing enforcement action, all at
the election of Grantee. Grantee shall be solely responsible for any costs
associated with any actions, initiated by Grantee, to remedy violations of this
Conservation Easement by unauthorized wrongful acts of third persons.
8.4 Standine. By virtue of Grantee's acquisition of rights under this Conservation
Easement, it shall be entitled, at its option, to standing before appropriate courts
26
of law to pursue remedies or other matters which are necessary or incidental to the
protection of the Property which is subject to this Conservation Easement,
provided Grantee shall provide prior written notice to Grantor prior to initiating or
otherwise joining in any actions to pursue remedies or other matters which are
necessary or incidental to the protection of the Property which is subject to this
Conservation Easement.
9. TRANSFER OF CONSERVATION EASEMENT. The parties recognize and
agree that the benefits of this Conservation Easement are in gross and assignable.
Grantee shall have the right to transfer or assign this Conservation Easement to an
organization that at the time of transfer, is a "qualified organization" under Section
170(h) of the U.S. Internal Revenue Code, and the organization expressly agrees to
assume the responsibility imposed on Grantee by this Conservation Easement. If Grantee
ever ceases to exist or no longer qualifies under Sec. 170(h) or applicable state law, a
court with jurisdiction shall transfer this Conservation Easement to another qualified
organization having similar purposes that agrees to assume the responsibility.
10. TRANSFER OF PROPERTY. Any time the Property, or any interest therein, is
transferred by Grantor to any third party, Grantor shall notify Grantee of the proposed
transfer of the Property, and provide Grantee with the document of conveyance which
shall expressly refer to this Conservation Easement.
11. AMENDMENT OF CONSERVATION EASEMENT. This Conservation
Easement may be amended only with the written consent of Grantee and the party then
owning the fee interest in the Property, or portion thereof, which is the subject of or
affected by the amendment or modification (the "current owner'). Any such amendment
shall be consistent with the purposes of this Conservation Easement and shall comply
with § 170(h) of the IRC, or any regulations promulgated in accordance with that section.
Any such amendment shall also be consistent with the Virginia Conservation Easement
Act, VA Code Ann. § 10.1-1009 et seq., or any regulations promulgated pursuant to that
law. Grantee and the current owner have no right or power to agree to any amendment
that would (i) affect the enforceability or perpetual duration of this Conservation
Easement, (ii) result in the termination or extinguishment of this Conservation Easement,
or (iii) permit any residential, commercial, or industrial structures or uses on the Property
that are expressly prohibited under the original terms of this Conservation Easement.
12. TERMINATION OF CONSERVATION EASEMENT. Grantor hereby agrees
that at the time of the conveyance of this Conservation Easement to Grantee, this
Conservation Easement gives rise to a real property right, immediately vested in Grantee,
with a fair market value of the Conservation Easement as of the date of the conveyance
that is at least equal to the proportionate value that this Conservation Easement at the
time of the conveyance bears to the fair market value of the Property as a whole at that
time. That proportionate value of Grantee's property rights shall remain constant.
When a change in conditions takes place which makes impossible or impractical
any continued protection of the Property for conservation purposes, and the restrictions
27
contained herein are extinguished by judicial proceeding, Grantee, upon a subsequent
sale, exchange or involuntary conversion of the Property, shall be entitled to a portion of
the proceeds at least equal to that proportionate value of the Conservation Easement
(minus any amount attributable to new improvements allowed under this Conservation
Easement made as of the date of the sale, exchange or conversion, which amount shall be
reserved to Grantor). Grantee shall use its share of the proceeds in a manner consistent
with the conservation purposes set forth herein or for the protection of a "relatively
natural habitat of fish, wildlife, or plants or similar ecosystem," as that phrase is used in
and defined under P.L. 96-541, 26 USC 170(h)(4)(A)(ii), as amended and in regulations
promulgated thereunder.
13. EMINENT DOMAIN. Whenever all or part of the Property is taken in exercise
of eminent domain by public, corporate, or other authority so as to abrogate the
restrictions imposed by this Conservation Easement, Grantor and Grantee shall join in
appropriate actions at the time of such taking to recover the fall value of the taking and
all incidental or direct damages resulting from the taking, which proceeds shall be
divided in accordance with the proportionate value of Grantee's and Grantor's interests,
and Grantee's proceeds shall be used as specified above. All expenses incurred by
Grantor and Grantee in such action shall be paid out of the recovered proceeds.
14. INTERPRETATION. This Conservation Easement shall be interpreted under
the laws of Virginia, resolving any ambiguities and questions of the validity of specific
provisions so as to give maximum effect to its conservation purposes. Grantor and
Grantee acknowledge that this Conservation Easement is governed in its entirety by a
covenant of good faith and fair dealing (including the giving of reasonable notice) and
each undertakes to the other that in the exercise of its rights and the performance of its
duties hereunder it will to adhere to such covenant. To the extent Grantee must consent to
any action by Grantor hereunder, such consent will not be withheld unreasonably,
provided that Grantee's "reasonableness" shall be evaluated in the context of the
overarching requirement that any uses of and acts on the Property must be consistent with
the purposes of this Easement.
15. INDEMNIFICATION. Each Grantor, for so long as it is the fee owner of the
Property and thereafter its successors or assigns as the case may be, and Grantee, for so
long as it holds this Conservation Easement and thereafter it successors and assigns,
agrees to hold harmless, defend and indemnify the other party from any and all liabilities
including, but not limited to, injury, losses, damages, judgments, costs, expenses and fees
that the indemnified party may suffer or incur but for the activities or actions of the other
party on the Property that causes injury to a person(s) or damage to property.
16. TITLE. Grantor covenants and represents that Grantor is the sole owner and is
seized of the Property in fee simple and has good right to grant and convey this
Conservation Easement; that the Property is free and clear of any and all encumbrances,
including but not limited to, any deeds of trust or mortgages not subordinated to this
Conservation Easement, and that Grantee shall have the use of and enjoy all of the
benefits derived from and arising out of this Conservation Easement.
28
17. NOTICES. Any notices required by this Conservation Easement shall be in
writing and shall be personally delivered or sent by first class mail, to Grantor and
Grantee, respectively, at the following addresses, unless a party has been notified by the
other of a change of address.
To Grantor:
To Grantee:
Hardware River Land Trust
Legal Department
Let It Go, LLC
The Nature Conservancy
The Nameless One, LLC
490 Westfield Road
C. Wesley Reynolds
Charlottesville, VA 22901
26 Teatown Road
Fax: 434-817-9381
Croton -on -Hudson
New York, NY 10520
Fax: 914 271-9517
With a co to:
With a copy to:
Williams Mullen, PC
The Nature Conservancy
John Russell / Philip Goodpasture
Virginia Field Office
321 East Main Street, Suite 400
490 Westfield Road
Charlottesville, Virginia 22902
Fax:(434)817-0977
Charlottesville, VA 22901
Fax: 434-979-0370
18. ENVIRONMENTAL CONDITION. Grantor warrants that they have no actual
knowledge of a release or threatened release of hazardous substances or wastes on the
Property.
19. SEVERABILITY. If any provision of this Conservation Easement is found to be
invalid, the remaining provisions shall not be altered thereby.
20. PARTIES. Every provision of this Conservation Easement that applies to
Grantor or Grantee shall also apply to their respective heirs, executors, administrators,
assigns, and all other successors as their interest may appear. Whenever used herein,
"Grantor shall include Grantor and its successors and assigns, and "Grantee" shall
include Grantee and its successors and assigns. A party's rights and obligations under
this Conservation Easement as to any given portion of the Property (a "Portion") shall
terminate upon transfer of the parry's interest in the Conservation Easement applicable to
any such Portion or upon the party's transfer of its interest in the portion of the Property
making up such Portion, each as applicable, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
21. RE-RECORDING. In order to ensure the perpetual enforceability of the
Conservation Easement, Grantee is authorized to re-record this instrument or any other
appropriate notice or instrument.
22. MERGER. The parties agree that the terms of this Conservation Easement shall
survive any merger of the fee and easement interest in the Property.
29
23. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation
Easement should be construed as impairing the ability of Grantor to use this Property as
collateral for subsequent borrowing, provided that any mortgage or lien arising from such
a borrowing would be subordinate to this Conservation Easement.
24. ACCEPTANCE & EFFECTIVE DATE. As attested by the signature of the
authorized representative of The Nature Conservancy affixed hereto, Grantee hereby
accepts without reservation the rights and responsibilities conveyed by this Conservation
Easement. This Conservation Easement is to be effective the date recorded in the Clerk's
Office of the Circuit Court of Albemarle County, Virginia.
Grantee makes no express or implied warranties regarding whether any tax
benefits will be available to Grantor from donation of this Conservation Easement, nor
whether any such tax benefits might be transferable, nor whether there will be any market
for any tax benefits which might be transferable.
TO HAVE AND TO HOLD, this Grant of Conservation Easement unto Grantee,
its successors and assigns, forever.
30
IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind
themselves, have set their hands and seals on the date first written above.
GRANTOR:
THE HARD � RIVE=ANT:
I �.
1 m E. jussell, Trustee under
amlml.jr.dst agreement June 28, 1998
LET IT GO:
LET IT GO, LLC,
a Virginia limited liability an
By. 1
]ohn . Russell, Special Manager
�n �.IA►t ON L ,,i
. F3i 094 "t
V a�Virginia limited liability co y
By: C.
John - Russell, Special Manager
GRANTEE:
THE NATURE CONSERVANCY
a Dis 'ct of Co m is non-profit corporation
By:
Charles R. Sc tuyler
Its: Piedmont Program Director
31
COMMONWEALTH OF VIRGINIA
COUNTY OF ALBEMARLE
The foregoing instrument was acknowledged before me this 19" day of
December, 2006, by John E. Russell, Trustee of the Hardware River Land Trust under a
trust agreement June 28, 1998.
NOTARY PUBLIC
My commission expires:
COMMONWEALTH OF VIRGINIA
COUNTY OF ALBEMARLE
The foregoing instrument was acknowledged before me on the 19'h day of
December, 2006, by John E. Russell, special manager of Let It Go, LLC, a Virginia
limited liability company, on behalf of said company.
e a
TARPUBLIC
My commission expires:
1 31 -)Ct )-7
COMMONWEALTH OF VIRGINIA
COUNTY OF ALBEMARLE
The foregoing instrument was acknowledged before me on the 19" day of
December, 2006, by John E. Russell, special manager of The Nameless One, LLC, a
Virginia limited liability company, on behalf of said company.
NOTARY PUBLIC
My commission expires:
32
COMMONWEALTH OF VIRGINIA
COUNTY OF ALBEMARLE
The foregoing instrument was acknowledged before me on the 19th day of
December, 2006, by Charles R. Schuyler, who is Director of the Piedmont Program of
THE NATURE CONSERVANCY, a District of Columbia non-profit corporation, on
behalf of said corporation.
My commission expires:
1-21=dr�,l—1
EXHIBITS (placed on separate page)
Exhibit A - Legal Description of the Hardware River Tracts
Exhibit B - Legal Description of the Jefferson Mill Tracts
Exhibit C - Legal Description of the Last Resort Farm Property
Exhibit D - Map depicting various spatial concepts of Conservation Easement
Upon YeCOrdation,, please return to
Williams MvRen OC
John Russell &w,
321 East Main Street Suite 400
Chm1oltmille Virginia 22902
D
EXHIBIT A
Legal Description of the Hardware River Tracts
All those certain lots or parcels of land together with appurtenances thereunto,
lying and being situate in the Scottsville Magisterial District of Albemarle
County, Virginia, containing in the aggregate 20.301 acres, more or less, and
more particularly designated as Lots One, Two and Three, on a pat of survey
made by J.R. Nicely, C.L.S., recorded in the Clerk's Office of the Circuit Court
of Albemarle County, Virginia, in Deed Book 640, page 481.
BEING the same property conveyed to James F Treakle, Jr., and Phillip H
Goodpasture, Trustees of The Hardware River Land Trust ula dated June 28,
1999, by deed of William Thomas Muncaster, Jr., and Gloria Schwartz
Muncaster, dated June 29, 1999, recorded in the Clerk's Office of the Circuit
Court of Albemarle County, Virginia, in Deed. Book 1840, Page 294.
EXHIBIT B
Legal Description of the Jefferson Mill Tracts
PARCEL 1: All that certain tract or parcel of land situated on the northerly side
of State Route 618 in Albemarle County, Virginia, containing 16.476 acres, more
or less, as shown on plat of W. Moths Foster, dated April 26, 1974, recorded in
the Clerk's Office of the Circuit Court of Albemarle County, Virginia in Deed
Book 566, pagel37.
PARCEL 11: All that certain tract or parcel of land containing 50A79 acres, more
or less, lying and being on the Hardware River in the Scottsville Magisterial
District of Albemarle County, Virginia, about three miles northeast of the Town
of Scottsville, Virginia, on Virginia Route 618, shown and described on a plat of
John C. Mache, Certified Lane Surveyor, dated January 21, 1971, attached to a
Certificate of James L. Camp, 111, recorded in the Clerk's Office of the Circuit
Court of Albemarle County, Virginia in Deed Book 505, page 374.
BEING the same property conveyed to Let It Go, LLC, a Virginia limited
liability company, by Deed from Let It Be, LLC a Virginia limited liability
company, dated April 20, 2006, recorded May 18, 2006, in the Clerk's Office of
the County of Albemarle, Virginia, in Deed Book 3212, age 656.
EXHIHJT C
Legal Description of the Last Resort Farm Property
All that certain tract or parcel of land, with improvements thereon and
appurtenances thereto belonging, situated in the Scottsville Magisterial District of
Albemarle County, Virginia, bounded by the Hardware River on its northeasterly
side and by State Route 618 (formerly known as Woodridge Road) on its
southeasterly side, containing 120.88 acres, more or less, and being more
particularly described in a plat by Old Albemarle Surveying, LLC, dated
November 30, 2006, and recorded in the Clerk's Office of the Circuit Court of
Albemarle County, Virginia, in Deed Book$3—Wpage ,!q. , said property shown
as Tax Map 123, parcel 17A.
The property conveyed herein is the same property conveyed to The Nameless
One, LLC, by deed from Raymond H. Reiss, 1H, and Susan R. McGaulley, Co -
Trustees of the Doris Mullen Reiss Trust dated February 13, 2003, as amended
and restated on July 15, 2005, and Raymond H. Reiss, Ell, and Susan R
McGaulley, Co -Trustees of the Raymond Henry Reiss Jr. Trust dated February
13, 2003, as amended and restated on July 15, 2005, and recorded together with
the aforesaid plat in the Clerk's Office of the Circuit Court of Albemarle County,
Virginia in Deed Book 3+W , page'!�1.
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