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HomeMy WebLinkAboutWPO202200037 Easements 2012-01-30 (2)Albemarle County ax Parcels: 01400-00-00-00200 00300 01000 01OA3 00900 00600 and 009B0 Insured by: Chicago Title Insurance Company Prepared by: Lisa Anne Hawkins, Esq. Lenhart Obenshain PC PO Box 1287 Harrisonburg, VA 22803 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration"), made this <��day of t� 2012, by INNISFREE, INCORPORATED, a Virginia corporation formerly known as C HILL VILLAGE OF THE POTOMAC, INC. (the "Owner"), and INNISFREE STREAM MITIGATION BANK LLC, a Virginia limited liability company, as assignee (the "Easement Holder"), each to be indexed as grantor, recites and provides as follows: RECITALS: WHEREAS, Owner owns certain real property located in Albemarle County, Virginia, and being more particularly described on Exhibit A and depicted on Exhibit B, both Exhibits being attached hereto and incorporated herein by this reference, being Albemarle County Tax Parcels: 01400-00-00- 00200, 00300, 01000, 01OA3, 00900, 00600 and 009BO as more particularly described in the deeds by which Grantor acquired title, which are of record in the Office of the Clerk of the Circuit Court of Albemarle County, Virginia, as Deed Book 488, page 501 and Deed Book 1214, page 123 (the "Owner's Tract"); WHEREAS, pursuant to that certain Mitigation Easement Agreement dated ,30, 2012 and duly recorded in the Clerk's Office in Deed Book4 /2.(oat page 4 S - (the "Easement"), Owner gave, granted and conveyed to Easement Holder an exclusive easement in gross in, on, upon, across, over, under and through, and the right in perpetuity to use and to restrict the use of, a portion of the Owner's Tract, comprised of: 5.38 acres, more or less, being all of Albemarle County Tax Parcel 1400-00-00-00200; 6.7646 acres, more or less, portion of Albemarle County Tax Parcel 1400-00-00-00300; 45.9839 acres, more or less, portion of Albemarle County Tax Parcel 1400-00-00-01000; 2.6551 acres, more or less, portion of Albemarle County Tax Parcel 1400-00-00-0IOA3; 17.1108 acres, more or less, portion of Albemarle County Tax Parcel 1400-00-00-00900; 22.3132 acres, more or less, portion of Albemarle County Tax Parcel 1400-00-00-00600; and 27.7859 acres, more or less, portion of Albemarle County Tax Parcel 1400-00-00-009BO (collectively, the "Property"). The Easement was granted in order to, among other things, restrict the Property as set out therein, and to carry out any and all activities on or relating to the Property that are consistent with the creation, use, management, operation, reservation and perpetual care of a Mitigation Bank (as defined below) on the Property in accordance with that certain Mitigation Banking Instrument dated �(IAumm %)5 , 2012, as more particularly described in the Easement (the "MBI"), by and among g theOwner, as Grantor, the Easement Holder, as Grantee, and the 1 Interagency Review Team, as such term is defined in the MBI (the "IRT"), or any activities that are otherwise permitted by the Easement (the "Easement Rights"). WHEREAS, pursuant to the MBI, Easement Holder is required to impose or have imposed on the Property restrictive covenants to protect and conserve preserved streams and wetlands, restored stream and wetlands, enhanced streams and wetlands, created wetlands, uplands, and areas of the Property to be converted into wetlands (as set forth below, the "Restrictive Covenants"). According to the terms of the Easement, Owner and Easement Holder together possesses or own the requisite property interests in the Property to impose these Restrictive Covenants on the Property. WHEREAS, Easement Holder and Owner desire to enter into and record this Declaration, and a member of the IRT has executed this Declaration to acknowledge its express written approval of this Declaration. AGREEMENT NOW THEREFORE THIS DECLARATION WITNESSETH: The Owner and Easement Holder do hereby declare, covenant and agree, for themselves and their successors and assigns, that the Property and the Easement Rights shall be hereafter held, leased, transferred, and sold subject to the following conditions and restrictions which shall run with the land in perpetuity and be binding on all parties and persons claiming under them. 1 Recitals. The foregoing Recitals are hereby incorporated herein and made a part hereof to the same extent as if set forth herein in full. 2 Restrictive Covenants. The Property shall be preserved in perpetuity in its natural state, by prohibiting the following activities: (a) Destruction or alteration of the Property except: i. alterations necessary to construct the stream and wetland mitigation areas and associated improvements, including, without limitation, dams, outlet structures and spillways, nature trails, and interpretive stations, proposed to be built by Easement Holder, or its successors or assigns, as a mitigation bank as the same may be permitted under the terms of the MBI (the "Mitigation Bank"); ii. alterations necessary to ensure the success of the Mitigation Bank and in conjunction with the construction, reconstruction, monitoring, or maintenance of the constructed mitigation areas, as the same may be permitted under the terms of the MBI; iii. alterations to construct structures such as walkways, boardwalks, foot trails, wildlife observation or management structures, nesting boxes, benches, observation decks, picnic tables, fence posts (spaced in a manner so that neither the posts nor the fence itself prevents the natural movement of water), and ecological, biological, hydrological or chemical monitoring, observation or management equipment including, 'without limitation, monitoring wells, water control weirs or interpretive stations, or other structures approved by the IRT, provided that (i) any such structures permit and do net impede, the natural movement of water, and (ii) such facilities are constructed and Ya maintained in accordance with all applicable federal and state laws; iv. additions of signs constructed in public rights of way by or on behalf of the Virginia Department of Transportation or other governmental agencies; vi. removal of vegetation (where not precluded by federal or state law) when conducted for (I) removal of noxious or invasive plants, or (II) removal of dead, dying or diseased trees and other vegetation, particularly which fall on the road or bridge; vii. planting of native species of wetlands plants by hand for aesthetic landscaping or screening purposes and where not prohibited by the MBI; viii. alterations authorized by the MBI and by the Corps; authorized by the MBI and the DEQ under Permit Number 76 © and other activities permitted by the DEQ and the Corps pursuant to the Virginia Water Protection Permit program and Section 404 of the Clean Water Act, respectively; ix. alterations as reasonably necessary to comply with applicable state or federal laws or court orders. (b) Construction, maintenance or placement of any structures or fills including, without limitation, buildings, and mobile homes, other than those that exist on the date this Declaration is recorded; (c) Ditching, draining, diking, damming, filling, excavating, grading, plowing, flooding/ponding, mining, drilling, placing of trash and yard debris or removing/adding topsoil, sand, or other materials, except as may be necessary on a case -by -case basis with prior written approval by the IRT or as authorized by the MBI; (d) Permitting livestock to graze, inhabit or otherwise enter the Property; (e) Harvesting, cutting, logging, and pruning of trees and plants, or using fertilizers and spraying with biocides, other than what is authorized by the MBI, (except as may be necessary on a case -by - case basis with prior written authorization by the IRT); and (1) Utilizing a non -reporting Nationwide Permit or State Program General Permit under Section 404 of the Clean Water Act or state general permits under V WPP regulations to impact any Waters of the United States, or any State Waters on the Property. Notification to the IRT is required for the use of any Nationwide Permit, State Program General Permit, Regional Permit, or state general permit under V WPP regulations. 3 Permitted Activities. In addition to those activities permitted under Paragraph 2 above, the following activities shall be permitted on the Property: (a) Easement Holder shall have access to, and the right to enter and remain upon, the Property at all times to establish, use, operate, restore, repair, maintain and preserve on the Property a bank for compensatory mitigation for unavoidable impacts to waters of the United States, including wetlands and streams resulting from activities authorized under applicable federal and state laws and for any purposes consistent with the terms of this Declaration ("Mitigation Activities"), and for any purposes consistent with the terms of this Declaration and with the MBI, and to authorize Easement Holder's employees, agents, consultants and contractors (including subcontractors not in privity with Easement Holder) to do the same, as provided in the Easement; (b) Easement Holder shall have the right to conduct stream or riparian restoration activities. Restoration activities can involve soil disturbance, provided such activities do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property. In addition, fertilizers can be selectively applied to add in the establishment of native vegetation planted as part of restoration efforts; (c) Easement Holder and/or Owner shall have the right to construct, maintain, repair and replace nesting boxes, viewing platforms and hides within the Property provided that any such structure permits the natural movement of water and preserves the natural contour of the ground; (d) Easement Holder and/or Owner shall have the right to remove, and consent to the removal of, Invasive Plants and Animals. Easement Holder and/or Owner shall have the right to use biocides in these efforts; (e) Recreational activities by Owner and its invitees are permitted on the Property, including, but not limited to, hiking, biking, kayaking, canoeing, bird watching, nature study, bow hunting, fishing, photography, environmental education, equine activities and related activities., provided they do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property; (f) Motorized vehicles may be utilized without limitations during stream and wetland restoration activities and maintenance of restoration activities. Other maintenance and wildlife management activities must be conducted from Roads and Trails. The operation of motorized vehicles, electric golf carts and/or electric utility vehicles may be conducted on all Roads and Trails within the Property; and-- (g) Access may be allowed to the Property by purchasers and potential purchasers of mitigation credits, government officials and regulators, and researchers, for any and all purposes, related to the restoration and mitigation that are not prohibited by or inconsistent with this Easement or the MBI, such access to be at reasonable times after reasonable prior notice , except in cases of an emergency, and with accompaniment by Owner at Owner's option; (h) To transfer Easement Holder's interest in the Property to any person or entity to the extent permitted by the terms of the Easement; (i) To use all public and private roads located on the Owner's Tract for the purpose of accessing the Property to conduct the Mitigation Activities, and to the extent Easement Holder is unable to reasonably access any Property by way of a public or private road, Easement Holder has the right of ingress and egress over those portions of the Owner's Tract lying between such public or private roads and the Property, but only in such manner as will occasion the least practicable damage to the Owner's Tract and Easement Holder must promptly repair any damage caused while exercising this right of ingress and egress. Easement Holder shall, and shall cause all its employees, contractors and agents to close all gates which are passed during ingress or egress. 4 Amendment or Modification. This Declaration shall not hereafter be amended or modified its successors and in any respect without the express written approval and consent of the Owner, or assigns, and the IRT. Owner, or its successors and assigns, may apply anytiimeowever,to the IRbeing for amendment, modification or termination of this Declaration; provided, recorded this Declaration may only be amended, modified or terminated by a recorded document signed by the IRT and the Owner or its successors or assigns. The Owner must provide 60-day advance written notification to the IRT and the Corps before any action is taken which may void or modify the Restrictive Covenants including transfer of title to, or establishment of any other legal rights or claims to the Property (to the extent a transfer of title or establishment of any other legal rights or claims to the Property has the effect of voiding or modifying the Restrictive Covenants), Further, Owner hereby agrees that so long as Easement Holder is the sponsor of the Mitigation Bank under the MBI, Owner will not agree to amend, modify or terminate the Restrictive Covenants without the approval of Easement Holder. 5 Compliance Inspections and Enforcement. The IRT and its authorized agents (acting under written authorization by the IRT) shall have the right to enter and go on the Property at any time to inspect the Property and take actions necessary to verify and enforce compliance with the Restrictive Covenants. The Restrictive Covenants shall be enforceable by any proceeding at law or in equity or administrative proceeding by the IRT and any member of the IRT, including the Corps and DEQ (as .defined in the MBI). Failure to enforce any of the Restrictive Covenants shall in no event be deemed a waiver of the right to do so thereafter. 6 Severability Provision. The provisions hereof shall be deemed individual and severable and the invalidity or partial invalidity or unenforceability of any one provision or any portion thereof shall not affect the validity or enforceability of any other provision thereof. 7 Litigation -in -Court. dn-any state court action, -Corps reserves the right to be -represented by - - - the U.S. Department of Justice and/or to remove a legal action affecting jurisdictional waters of the U.S. to the United States Federal District Court in the district where the land lies. g Further Assurances. Each party hereto covenants and agrees to execute and deliver, or cause to be executed and delivered, and to do or make, or cause eseeds, acts to b deeds, de,uponthings, the reasonabl , request of any party hereto, any and all instruments, papers, ap confirmatory or otherwise, as may be reasonably required by such party for the purpose of effecting this Declaration. 9 Successors and Assigns. This Declaration shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. 10 Entire Agreement. This Declaration constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior discussions, understandings, agreements and negotiations between the parties hereto; however, this provision does not apply to the Easement or to the MBI. I 1 Mortgage Consent. Owner represents and warrants that no consent to the terms *amend _.__ .L_ 1.o..oFriar encumbering the Property, or if such consent is required, all consents have been obtained in writing. 12 Eminent Domain. If any Property is condemned or taken pursuant to governmental action or other exercise of the power of eminent domain (a "Taking"), or if Easement Holder receives notice of a potential Taking, Easement Holder will notify IRT in writing and use its best efforts to prevent the Declaration from being terminated with respect to the taken Property without IRT approval. (a) If the taken Property remains subject to the Declaration or the Declaration is terminated with IRT approval, then no further action is required of the Easement Holder. (b) If, however, the Declaration is terminated with respect to the taken Property without IRT approval, then the preservation, enhancement and restoration of the streams and wetlands on the taken Property will be lost. The lost preservation, enhancement and restoration of such streams and wetlands are referred to as "Lost Mitigation." i. If any Credits generated from the Lost Mitigation have not been sold as of the Taking, then IRT may reduce the number of Credits available for sale by the number of unsold Credits generated from the Lost Mitigation. ii. If any Credits generated from the Lost Mitigation have been sold prior to the Taking (the "Sold Credits"), then in addition to any other award Easement Holder may pursue, Easement Holder must pursue an award for the value of the Lost Mitigation associated with the Sold Credits (the "Lost Mitigation Award"). Easement Holder and IRT agree that the value of the Lost Mitigation associated with the Sold Credits equals the value of the Sold Credits as of the Taking. Unless a court of competent jurisdiction has already determined the appropriate valuation of the Lost Mitigation Award, Easement Holder will seek an award in accordance with the valuation set forth above. ------(c)3f,- and -only if-EasernentHolder, obtains a Lost Mitigaftari Award, -then EasementHolder wilt use the award to purchase Credits from another Bank or make an in lieu fee contribution. (d) Notwithstanding the foregoing, any award for the Lost Mitigation associated with the Sold Credits does not reduce the award to which the Owner or Easement Holder is entitled in connection with a Taking. 2 WITNESS the following signature the day and year first above written. OWNER: INNISFREE, INCORPORATED, a Virginia corporation (formerly known as CAMPHILL VILLAGE OF THE POTOMAC, INC. By: O` - Name: CARD (J Title: eY-V-C i-&-rkV C D I (LE�-T-D P - COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF Aa�n_ ��y �fl> to -wit: Z� da of The foregoing instrument was acknowledged before me this Y of INNI ESFREESFRE 2012, b4� cc� Oe YvY as INCORPORATED, a Virginia corpora on, on behalf of the company. My commission expires: 1 �b —�� Notary Public Notary- Registration No,- --At, [SIGNATURES CONTINUE ON FOLLOWING PAGE] EASEMENT HOLDER: INNISFREE STREAM MITIGATION BANK LLC, a Virginia limited liability company By: 0� �'ic� rGl kliyl G Name: J2��l,ord 7 �e►y/dn� Title: Manager COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF �,C�W , to -wit: The foregoing instrument was acknowledged before me this day of �a�-r> 2012, by 12 tW roil pe a� Manager of Innisfree Stream Mitigation Bank LLC, a Virginia limited liability company, on behalf of the company. My commission expires: Notary Public Notary Registration No.: VICKI D. SHIFFLETT NOTARY PUBLIC REGISTRATION # 140640 COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES NOVEMBER 30, 2013 Exhibit A To Declaration aisfree Incorporated, a Virginia corporation Property -.rt of TMPs 01400-00-00-00200, 01400-00-00-00300, 01400-00-00-00600, 01400-00- 1-00900, 01400-00-00-009130, 01400-00-00-01000 and 01400-00-00-010A3 that certain area of land located in Albemarle County, Virginia, containing 128.0162 es, more or less, as shown on a plat entitled COMPILED PLAT SHOWING A )NSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, _C, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT !_BEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, rich is attached to the Easement (as defined in this Declaration) and recorded prior reto. ?-ING a portion of the property conveyed to Camphill Village of the Potomac, Inc., by ed from Citizens Bank and Trust Company of Charlottesville and James Harry Michael, r., Co -Administrators, c.t.a. and Testamentary Trustees of the Estate of Justinian Hartley :lick, deceased, dated May 3T, 1971, recorded June 11, 1971, in the Clerk's Office of Circuit Court of Albemarle County, Virginia, in Deed Book 488, page 501. By artificate of Amendment issued September 1, 1971, and recorded in Deed Book 496, ge 329, the State Corporation Committee certified that the name of Camphill Village of Potomac, Inc., was changed to Innisfree Incorporated.(As to TMPs 14-2, 3, 10 & 7,43); and by Boundary Line Adjustment and Easement from Fried Farm, LLC, a Virginia sited liability company„ dated July 19, 2008, and recorded September 19, 2008, in Deed nok 3646, page 694 (As to TMP 14-10); and a portion of the property conveyed to lisfree Incorporated, by deed from Stuart F. Carwile, as Trustee for the White Hall Land ist, under agreement dated February 1, 1982, said deed_ dated December 23, 1991, _,orded March 30, 1992, in Deed Book 1214, page 123. (As to TMP 14-6, 9, 9B) Exhibit B Refer to the COMPILED PLAT SHOWING A CONSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, LLC, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT ALBEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, which is attached to the Easement (as defined in this Declaration) and recorded prior hereto. 00310697-DOC Albemarle County Tax Parcel: 01400-00-00-00400 Insured by: Chicago Title Insurance Company Prepared by Lisa Anne Hawkins, Esq. Lenhart Obenshain PC PO Box1287 Harrisonburg, VA 22803 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration"), made this day of 0. 2012, by FRIED FARM LLC, a Virginia limited liability company (the "Owner"), and rNNISFREE STREAM MITIGATION BANK LLC, a Virginia limited liability company, as assignee (the "Easement Holder"), each to be indexed as grantor, recites and provides as follows: RECITALS: WHEREAS, Owner owns certain real property located in Albemarle County, Virginia, and being more particularly described on Exhibit A and depicted on Exhibit B, both Exhibits being attached hereto and incorporated herein by this reference, being Albemarle County Tax Parcel 01400-00-00-00400 as more particularly described in the deed by which Grantor acquired title, which is of record in the Office of the Clerk of the Circuit Court of Albemarle County, Virginia, as Deed Book 1868, page 542 (the "Owner's Tract"); - WHEREAS, pursuant to that -certain Mitigation Easement -Agreement �dated-30,1\uaru aZ,Sj 2012 and duly recorded in the Clerk's Office in Deed Book U,� at page yN9Z (the "Eas— e�, Owner gave, granted and conveyed to Easement Holder an exclusive easement in gross in, on, upon, across, over, under and through, and the right in perpetuity to use and to restrict the use of, a portion of the Owner's Tract, comprised of 132.6483 acres (the "Property"). The Easement was granted in order to, among other things, restrict the Property as set out therein, and to carry out any and all activities on or relating to the Property that are consistent with the creation, use, management, operation, reservation and perpetual care of a Mitigation Bank (as defined below) on the Property in accordance with that certain Mitigation Banking Instrument dated _6 0. -35 2012, excerpts of which are recorded as an exhibit to the Easement (the "MBI"), by aA among the Owner, as Grantor, the Easement Holder, as Grantee, and the Interagency Review Team, as such term is defined in the MBI (the "IRT"), or any activities that are otherwise permitted by the Easement (the "Easement Rights"). WHEREAS, pursuant to the MBI, Easement Holder is required to impose or have imposed on the Property restrictive covenants to protect and conserve preserved streams and wetlands, restored stream and wetlands, enhanced streams and wetlands, created wetlands, uplands, and areas of the Property to be converted into wetlands (as set forth below, the "Restrictive Covenants"). According to the terms of the Easement, Owner and Easement Holder together possesses or own the requisite prope y m eres s m a rope y o impose ese estnctive ovenants on t o roperty. WHEREAS, Easement Holder and Owner desire to enter into and record this Declaration, and a member of the IRT has executed this Declaration to acknowledge its express written approval of this Declaration. AGREEMENT NOW THEREFORE THIS DECLARATION WITNESSETH: The Owner and Easement Holder do hereby declare, covenant and agree, for themselves and their successors and assigns, that the Property and the Easement Rights shall be hereafter held, leased, transferred, and sold subject to the following conditions and restrictions which shall run with the land in perpetuity and be binding on all parties and persons claiming under them. I Recitals. The foregoing Recitals are hereby incorporated herein and made a part hereof to the same extent as if set forth herein in full. 2 Restrictive Covenants. The Property shall be preserved in perpetuity in its natural state, by prohibiting the following activities: (a) Destruction or alteration of the Property except: i. alterations necessary to construct the stream and wetland mitigation areas and associated improvements, including, without limitation, dams, outlet structures and spillways, nature trails, and interpretive stations, proposed to be built by Easement Holder, or its successors or assigns, as a mitigation bank as the same may be permitted under the terms of the MBI (the "Mitigation Bank"); ii. alterations -necessary to ensure the success -of the Mitigation Bank and in conjunction with the construction, reconstruction, monitoring, or maintenance of the constructed mitigation areas, as the same may be permitted under the terms of the MBI; iii. alterations to construct structures such as walkways, boardwalks, foot trails, wildlife observation or management structures, nesting boxes, benches, observation decks, picnic tables, fence posts (spaced in a manner so that neither the posts nor the fence itself prevents the natural movement of water), and ecological, biological, hydrological or chemical monitoring, observation or management equipment including, without limitation, monitoring wells, water control weirs or interpretive stations, or other structures approved by the IRT, provided that (i) any such structures permit, and do not impede, the natural movement of water, and (ii) such facilities are constructed and maintained in accordance with all applicable federal and state laws; iv. additions of signs constructed in public rights of way by or on behalf of the Virginia Department of Transportation or other governmental agencies; vi. removal of vegetation (where not precluded by federal or state law) when conducted for (I) removal of noxious or invasive plants, or (II) removal of dead, dying or diseased trees an o er vege a ion, pa icu ar y w is a on t e roa or r� ge; vii. planting of native species of wetlands plants by hand for aesthetic landscaping or screening purposes and where not prohibited by the MBI; viii. alterations authorized by the MBI and by the Corps; authorized by the MBI and the DEQ under Permit Number -1-6 D and other activities permitted by the DEQ and the Corps pursuant to the Virginia Water Protection Permit program and Section 404 of the Clean Water Act, respectively; ix. alterations as reasonably necessary to comply with applicable state or federal laws or court orders. (b) Construction, maintenance or placement of any structures or fills including, without limitation, buildings, and mobile homes, other than those that exist on the date this Declaration is recorded; (c) Ditching, draining, diking, damming, filling, excavating, grading, plowing, flooding/ponding, mining, drilling, placing of trash and yard debris or removing/adding topsoil, sand, or other materials, except as may be necessary on a case -by -case basis with prior written approval by the IRT or as authorized by the MBI; (d) Permitting livestock to graze, inhabit or otherwise enter the Property; (e) Harvesting, cutting, logging, and pruning of trees and plants, or using fertilizers and spraying with biocides, other than what is authorized by the MBI, (except as may be necessary on a case -by - case basis with prior written authorization by the IRT); and (f) Utilizing a non -reporting Nationwide Permit or State Program General Permit under Section 404 of the Clean Water Act or state general permits under V WPP regulations to impact any Waters of the United States, or any State Waters on the Property. Notification to the IRT is required for the use ofanyNationwide Permit, -State Program General Permit, Regional Permit, or state general permit under VWPP regulations. 3 Permitted Activities. In addition to those activities permitted under Paragraph 2 above, the following activities shall be permitted on the Property: (a) Easement Holder shall have access to, and the right to enter and remain upon, the Property at all times to establish, use, operate, restore, repair, maintain and preserve on the Property a bank for compensatory mitigation for unavoidable impacts to waters of the United States, including wetlands and streams, resulting from activities authorized under applicable federal and state laws, and for any purposes consistent with the terms of this Declaration ("Mitigation Activities"), and for any purposes consistent with the terms of this Declaration and with the MBI, and to authorize Easement Holder's employees, agents, consultants and contractors (including subcontractors not in privity with Easement Holder) to do the same, as provided in the Easement; (b) Easement Holder shall have the right to conduct stream or riparian restoration activities. Restoration activities can involve soil disturbance, provided such activities do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property. In addition, fertilizers can be selectively applied to add (c) Easement Holder and/or Owner shall have the right to construct, maintain, repair and replace nesting boxes, viewing platforms and hides within the Property provided that any such structure permits the natural movement of water and preserves the natural contour of the ground; (d) Easement Holder and/or Owner shall have the right to remove, and consent to the removal of, Invasive Plants and Animals. Easement Holder and/or Owner shall have the right to use biocides in these efforts; (e) Recreational activities by Owner and its invitees are permitted on the Property, including, but not limited to, hiking, biking, kayaking, canoeing, bird watching, nature study, bow hunting, fishing, photography, environmental education, equine activities and related activities., provided they do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property; (f) Motorized vehicles may be utilized without limitations during stream and wetland restoration activities and maintenance of restoration activities. Other maintenance and wildlife management activities must be conducted from Roads and Trails. The operation of motorized vehicles, electric golf carts and/or electric utility vehicles may be conducted on all Roads and Trails within the Property; and (g) Access may be allowed to the Property by purchasers and potential purchasers of mitigation credits, government officials and regulators, and researchers, for any and all purposes, related to the restoration and mitigation that are not prohibited by or inconsistent with this Easement or the MBI, such access to be at reasonable times after reasonable prior notice , except in cases of an emergency, and with accompaniment by Owner at Owner's option; (h) To transfer Easement Holder's interest in the Property to any person or entity to the extent permitted by the terms of the Easement; (i) To use all public and private roads located on the Owner's Tract for the purpose of accessing the Property to conduct the Mitigation Activities, and to the extent Easement Holder is unable to reasonably access any Property by way of a public or private road, Easement Holder has the right of ingress and egress over those portions of the Owner's Tract lying between such public or private roads and the Property, but only in such manner as will occasion the least practicable damage to the Owner's Tract and Easement Holder must promptly repair any damage caused while exercising this right of ingress and egress. Easement Holder shall, and shall cause all its employees, contractors and agents to close all gates which are passed during ingress or egress. 4 Amendment or Modification. This Declaration shall not hereafter be amended or modified in any respect without the express written approval and consent of the Owner, or its successors and assigns, and the IRT. Owner, or its successors and assigns, may apply anytime to the IRT for amendment, modification or termination of this Declaration; provided, however, that after being recorded this Declaration may only be amended, modified or terminated by a recorded document signed by the IRT and the Owner or its successors or assigns. The Owner must provide 60-day advance written notification to the IRT and the Corps before any action is taken which may void or modify the Restrictive Covenants including transfer of title to, or establishment of any other legal rights or claims to the Property (to the extent a transfer of title or establishment of any other legal rights or claims to the Property has the effect of voiding or modifying the Restrictive Covenants). u er, caner ere y agrees t at so ong as asement Holder is the sponsor of the Mittgat�on Bank under the MBI, Owner will not agree to amend, modify or terminate the Restrictive Covenants without the approval of Easement Holder. 5 Compliance Inspections and Enforcement. The IRT and its authorized agents (acting under written authorization by the IRT) shall have the right to enter and go on the Property at any time to inspect the Property and take actions necessary to verify and enforce compliance with the Restrictive Covenants. The Restrictive Covenants shall be enforceable by any proceeding at law or in equity or administrative proceeding by the IRT and any member of the IRT, including the Corps and DEQ (as defined in the MBI). Failure to enforce any of the Restrictive Covenants shall in no event be deemed a waiver of the right to do so thereafter. 6 Severability Provision. The provisions hereof shall be deemed individual and severable and the invalidity or partial invalidity or unenforceability of any one provision or any portion thereof shall not affect the validity or enforceability of any other provision thereof. 7 Litigation in Court. In any state court action, Corps reserves the right to be represented by the U.S. Department of Justice and/or to remove a legal action affecting jurisdictional waters of the U.S. to the United States Federal District Court in the district where the land lies. 8 Further Assurances. Each party hereto covenants and agrees to execute and deliver, or cause to be executed and delivered, and to do or make, or cause to be done or made, upon the reasonable request of any party hereto, any and all instruments, papers, deeds, acts or things, supplemental, confirmatory or otherwise, as may be reasonably required by such party for the purpose of effecting this Declaration. 9 Successors and Assigns. This Declaration shall bind and inure to the benefit of the parties -hereto-and-their respective successors and assigns. - - - --- 10 Entire Agreement. This Declaration constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior discussions, understandings, agreements and negotiations between the parties hereto; however, this provision does not apply to the Easement or to the MBI. 11 Mortgage Consent. Owner represents and warrants that no consent to the terms and provisions of this Declaration is required from the beneficiaries of any mortgages or deeds of trust encumbering the Property, or if such consent is required, all consents have been obtained in writing. 12 Eminent Domain. If any Property is condemned or taken pursuant to governmental action or other exercise of the power of eminent domain (a "Taking"), or if Easement Holder receives notice of a potential Taking, Easement Holder will notify IRT in writing and use its best efforts to prevent the Declaration from being terminated with respect to the taken Property without IRT approval. (a) If the taken Property remains subject to the Declaration or the Declaration is terminated with IRT approval, then no further action is required of the Easement Holder. approval, then the preservation, enhancement and restoration of the streams and wetlands on the taken Property will be lost. The lost preservation, enhancement and restoration of such streams and wetlands are referred to as "Lost Mitigation." i. If any Credits generated from the Lost Mitigation have not been sold as of the Taking, then IRT may reduce the number of Credits available for sale by the number of unsold Credits generated from the Lost Mitigation. ii. If any Credits generated from the Lost Mitigation have been sold prior to the Taking (the "Sold Credits"), then in addition to any other award Easement Holder may pursue, Easement Holder must pursue an award for the value of the Lost Mitigation associated with the Sold Credits (the "Lost Mitigation Award"). Easement Holder and IRT agree that the value of the Lost Mitigation associated with the Sold Credits equals the value of the Sold Credits as of the Taking. Unless a court of competent jurisdiction has already determined the appropriate valuation of the Lost Mitigation Award, Easement Holder will seek an award in accordance with the valuation set forth above. (c) If, and only if, Easement Holder obtains a Lost Mitigation Award, then Easement Holder will use the award to purchase Credits from another Bank or make an in lieu fee contribution. (d) Notwithstanding the foregoing, any award for the Lost Mitigation associated with the Sold Credits does not reduce the award to which the Owner or Easement Holder is entitled in connection with a Taking. WITNESS the following signature the day and year first above written. OWNER: FRIED FARM-L LC, - a Virginia limited liability company / By: � • � .L Name: Barbara J. Fried Title: Manager COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF ANV1 ,P_- nri�,o , to -wit: The foregoing instrument was acknowledged before me this `2S day of 2012, by Barbara J. Fried, as Manager of FRIED FARM LLC, a Virginia limited liability company, on behalf of the company. My commission expires: � \ - -,�, o — 1'J h Notary Public COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES NOVEMBER 30. 2013 EASEMENT HOLDER: INNISFREE STREAM MITIGATION BANK LLC, a Virginia limited liability company By: ` tx'Z I Name: 1?i c �, R v d F. D, A/ p„ Title: COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF /k�ywr rLt , to -wit: The foregoing instrument was acknowledged before me this 2c7 day of 2012, byf'RNc.C\A-,-C` Oerv—zas{yy�f- of Innisfree Stream Mitigation Bank , aLLC Virginia limited liability compare , on behalf of the company. My commission expires: \� ---') b --1� 00299190.v2 Notary Public Notary Registration No.: VICKI D. SHIFFLETT NOTARY PUBLIC REGISTRATION # 140640 COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES NOVEMBER 30. 2015 Exhibit A To Declaration Fried Farm, LLC Property part TMP 01400-00-00-00400 All that certain area of land located in Albemarle County, Virginia, containing 132.6483 acres, more or less, as shown on a plat entitled COMPILED PLAT SHOWING A CONSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, LLC, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT ALBEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, which is attached to the Easement (as defined in this Declaration) and recorded prior hereto. BEING a portion of the property conveyed to Fried Farm, LLC, a Virginia limited liability company, by deed from Adam Micah Fried and Leah Rachel Fried, Trustees for Jonathan David Fried Trust, said deed dated October 5, 1999, recorded October 27, 1999, in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 1868, page 542. 00310611.DOCX Exhibit B Refer to the COMPILED PLAT SHOWING A CONSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, LLC, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT ALBEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, which is attached to the Easement (as defined in this Declaration) and recorded prior hereto. a frl:9 ropy TF1c'. t: Ei5 IE 'P, CL RK by: C 00310697.DOC Albemarle County Tax Parcels: 01300-00-00011A0 01300-00-00-011130 and 01400-00-00-00500 Insured by: Chicago Title Insurance Company Prepared by: Lisa Anne Hawkins, Esq. Lenhart Obenshain PC PO Box 1287 Harrisonburg, VA 22803 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration"), made this day of 2012, by FRIED LLC, a Virginia limited liability company (the "Owner"), and INNISFREE STREAM MITIGATION BANK LLC, a Virginia limited liability company, as assignee (the "Easement Holder"), each to be indexed as grantor, recites and provides as follows: RECITALS: WHEREAS, Owner owns certain real property located in Albemarle County, Virginia, and being more particularly described on Exhibit A and depicted on Exhibit B, both Exhibits being attached hereto and incorporated herein by this reference, being Albemarle County Tax Parcels: 01300-00- 000I1AO. 01300-00-00-OI1BO and 01400-00-00-00500 as more particularly described in the deed by which Grantor acquired title, which is of record in the Office of the Clerk of the Circuit Court of Albemarle County, Virginia, as Deed Book 2925, page 43and Deed Book 1869, page 616 (the "Owner's Tract"); `` WHEREAS, pursuant to that certain Mitigation Easement Agreement dated V 4w 0;5 2012 and duly recorded in the Clerk's Office in Deed Book` 74 at page t� (the "Easem t" ), Owner gave, granted and conveyed to Easement Holder an exclusive easement in gross in, on, upon, across, over, under and through, and the right in perpetuity to use and to restrict the use of, a portion of the Owner's Tract, comprised of: 50.2379 acres, more or less, portion of Albemarle County Tax Parcel 01300-00-00011AO; 139.5796 acres, more or less, portion of Albemarle County Tax Parcel 01300-00-0001113 ;and 74.9899 acres, more or less, portion of Albemarle County Tax Parcel 01400-00-00-00500; (collectively, the "Property"). The Easement was granted in order to, among other things, restrict the Property as set out therein, and to carry out any and all activities on or relating to the Property that are consistent with the creation, use, management, operation, reservation and perpetual care of a Mitigation Bank (as defined below) on the Property in accordance with that certain Mitigation Banking Instrument dated -10 1 oLnj a5 , 2012, as more particularly described in the Easement (the "MBI"), by and among the 6wner, as Grantor, the Easement Holder, as Grantee, and the Interagency Review Team, as such term is defined in the MBI (the "IRT"), or any activities that are otherwise permitted by the Easement (the "Easement Rights"). WHEREAS, pursuant to the MBI, Easement Holder is required to impose or have imposed on the Property restrictive covenants to protect and conserve preserved streams and wetlands, restored stream and wetlands, enhanced streams and wetlands, created wetlands, uplands, and areas of the Property to be converted into wetlands (as set forth below, the "Restrictive Covenants"). According to the terms of the Easement, Owner and Easement Holder together possesses or own the requisite property interests in the Property to impose these Restrictive Covenants on the Property. WHEREAS, Easement Holder and Owner desire to enter into and record this Declaration, and a member of the IRT has executed this Declaration to acknowledge its express written approval of this Declaration. AGREEMENT NOW THEREFORE THIS DECLARATION WITNESSETH: The Owner and Easement Holder do hereby declare, covenant and agree, for themselves and their successors and assigns, that the Property and the Easement Rights shall be hereafter held, leased, transferred, and sold subject to the following conditions and restrictions which shall run with the land in perpetuity and be binding on all parties and persons claiming under them. 1 Recitals. The foregoing Recitals are hereby incorporated herein and made a part hereof to the same extent as if set forth herein in full. 2 Restrictive Covenants. The Property shall be preserved in perpetuity in its natural state, by prohibiting the following activities: (a) Destruction or alteration of the Property except: i. alterations necessary to construct the stream and wetland mitigation areas and associated improvements, including, without limitation, dams, outlet structures and spillways, nature trails, and interpretive stations, proposed to be built by Easement Holder, or its successors or assigns, as a mitigation bank as the same may be permitted under the terms of the MBI (the "Mitigation Bank"); ii. alterations necessary to ensure the success of the Mitigation Bank and in conjunction with the construction, reconstruction, monitoring, or maintenance of the constructed mitigation areas, as the same may be permitted under the terms of the MBI; iii. alterations to construct structures such as walkways, boardwalks, foot trails, wildlife observation or management structures, nesting boxes, benches, observation decks, picnic tables, fence posts (spaced in a manner so that neither the posts nor the fence itself prevents the natural movement of water), and ecological, biological, hydrological or chemical monitoring, observation or management equipment including, without limitation, monitoring wells, water control weirs or interpretive stations, or other structures approved by the IRT, provided that (i) any such structures permit, and do not impede, the natural movement of water, and (ii) such facilities are constructed and maintained in accordance with all applicable federal and state laws; iv. additions of signs constructed in public rights of way by or on behalf of the Virginia Department of Transportation or other governmental agencies; vi. removal of vegetation (where not precluded by federal or state law) when conducted for (I) removal of noxious or invasive plants, or (II) removal of dead, dying or diseased trees and other vegetation, particularly which fall on the road or bridge; vii. planting of native species of wetlands plants by hand for aesthetic landscaping or screening purposes and where not prohibited by the MBI; viii. alterations authorized by the MBI and by the Corps; authorized by the MBI and the DEQ under Permit Number :1�d D and other activities permitted by the DEQ and the Corps pursuant to the Virginia Water Protection Permit program and Section 404 of the Clean Water Act, respectively; ix. alterations as reasonably necessary to comply with applicable state or federal laws or court orders. (b) Construction, maintenance or placement of any structures or fills including, without limitation, buildings, and mobile homes, other than those that exist on the date this Declaration is recorded; (c) Ditching, draining, diking, damming, filling, excavating, grading, plowing, flooding/ponding, mining, drilling, placing of trash and yard debris or removing/adding topsoil, sand, or other materials, except as may be necessary on a case -by -case basis with prior written approval by the IRT or as authorized by the MBI; (d) Permitting livestock to graze, inhabit or otherwise enter the Property; - (e) Harvesting, cutting, logging, and pruning of trees and plants, or usingfertilizersandspraying— with biocides, other than what is authorized by the MBI, (except as may be necessary on a case -by - case basis with prior written authorization by the IRT); and (f) Utilizing a non -reporting Nationwide Permit or State Program General Permit under Section 404 of the Clean Water Act or state general permits under V WPP regulations to impact any Waters of the United States, or any State Waters on the Property. Notification to the IRT is required for the use of any Nationwide Permit, State Program General Permit, Regional Permit, or state general permit under VWPP regulations. 3 Permitted Activities. In addition to those activities permitted under Paragraph 2 above, the following activities shall be permitted on the Property: (a) Easement Holder shall have access to, and the right to enter and remain upon, the Property at all times to establish, use, operate, restore, repair, maintain and preserve on the Property a bank for compensatory mitigation for unavoidable impacts to waters of the United States, including wetlands and streams, resulting from activities authorized under applicable federal and state laws, and for any purposes consistent with the terms of this Declaration ("Mitigation Activities"), and for any purposes consistent with the terms of this Declaration and with the MBI, and to authorize Easement Holder's employees agents consultants and contractors (including subcontractors not in privity with Easement to do the same, as provided in the Easement; (b) Easement Holder shall have the right to conduct stream or riparian restoration activities. Restoration activities can involve soil disturbance, provided such activities do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property. In addition, fertilizers can be selectively applied to add in the establishment of native vegetation planted as part of restoration efforts; (c) Easement Holder and/or Owner shall have the right to construct, maintain, repair and replace nesting boxes, viewing platforms and hides within the Property provided that any such structure permits the natural movement of water and preserves the natural contour of the ground; (d) Easement Holder and/or Owner shall have the right to remove, and consent to the removal of, Invasive Plants and Animals. Easement Holder and/or Owner shall have the right to use biocides in these efforts; (e) Recreational activities by Owner and its invitees are permitted on the Property, including, but not limited to, hiking, biking, kayaking, canoeing, bird watching, nature study, bow hunting, fishing, photography, environmental education, equine activities and related activities., provided they do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property; (f) Motorized vehicles may be utilized without limitations during stream and wetland restoration activities and maintenance of restoration activities. Other maintenance and wildlife management activities must be conducted from Roads and Trails. The operation of motorized vehicles, electric golf carts and/or electric utility vehicles may be conducted on all Roads and Trails within the Property; and (g) Access may be allowed to the Property by purchasers and potential purchasers of mitigation credits, government officials and regulators, and researchers, for any and all purposes, related to the restoration -and -mitigation that are -not -prohibited by-orinconsistent with this-Easementor the-MBI, such access to be at reasonable times after reasonable prior notice , except in cases of an emergency, and with accompaniment by Owner at Owner's option; (h) To transfer Easement Holder's interest in the Property to any person or entity to the extent permitted by the terms of the Easement; (i) To use all public and private roads located on the Owner's Tract for the purpose of accessing the Property to conduct the Mitigation Activities, and to the extent Easement Holder is unable to reasonably access any Property by way of a public or private road, Easement Holder has the right of ingress and egress over those portions of the Owner's Tract lying between such public or private roads and the Property, but only in such manner as will occasion the least practicable damage to the Owner's Tract and Easement Holder must promptly repair any damage caused while exercising this right of ingress and egress. Easement Holder shall, and shall cause all its employees, contractors and agents to close all gates which are passed during ingress or egress. 4 Amendment or Modification. This Declaration shall not hereafter be amended or modified in any respect without the express written approval and consent of the Owner, or its successors and assigns, and the IRT. Owner, or its successors and assigns, may apply anytime to the IRT for amendment, modification or termination of thk Declaration; provided, bnwever, that after heing recorded this Declaration may only be amended, modified or terminated by a recorded document signed by the IRT and the Owner or its successors or assigns. The Owner must provide 60-day advance written notification to the IRT and the Corps before any action is taken which may void or modify the Restrictive Covenants including transfer of title to, or establishment of any other legal rights or claims to the Property (to the extent a transfer of title or establishment of any other legal rights or claims to the Property has the effect of voiding or modifying the Restrictive Covenants). Further, Owner hereby agrees that so long as Easement Holder is the sponsor of the Mitigation Bank under the MBI, Owner will not agree to amend, modify or terminate the Restrictive Covenants without the approval of Easement Holder. 5 Compliance Inspections and Enforcement. The IRT and its authorized agents (acting under written authorization by the IRT) shall have the right to enter and go on the Property at any time to inspect the Property and take actions necessary to verify and enforce compliance with the Restrictive Covenants. The Restrictive Covenants shall be enforceable by any proceeding at law or in equity or administrative proceeding by the IRT and any member of the IRT, including the Corps and DEQ (as defined in the MBI). Failure to enforce any of the Restrictive Covenants shall in no event be deemed a waiver of the right to do so thereafter. 6 Severability Provision. The provisions hereof shall be deemed individual and severable and the invalidity or partial invalidity or unenforceability of any one provision or any portion thereof shall not affect the validity or enforceability of any other provision thereof. 7 Litigation in Court. In any state court action, Corps reserves the right to be represented by the U.S. Department of Justice and/or to remove a legal action affecting jurisdictional waters of the U.S. to the United States Federal District Court in the district where the land lies. 8 Further Assurances. Each party hereto covenants and agrees to execute and deliver, or cause -to -be -executed -and -delivered and -to -do -or make, or cause -to -be -done or made -upon-the-reasonable request of any party hereto, any and all instruments, papers, deeds, acts or things, supplemental, confirmatory or otherwise, as may be reasonably required by such party for the purpose of effecting this Declaration. 9 Successors and Assigns. This Declaration shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. 10 Entire Agreement. This Declaration constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior discussions, understandings, agreements and negotiations between the parties hereto; however, this provision does not apply to the Easement or to the MBI. 11 Mortgage Consent. Owner represents and warrants that no consent to the terms and provisions of this Declaration is required from the beneficiaries of any mortgages or deeds of trust encumbering the Property, or if such consent is required, all consents have been obtained in writing. 12 Eminent Domain. If any Property is condemned or taken pursuant to governmental action or other exercise of the power of eminent domain (a "Taking"), or if Easement Holder receives notice of a potential Taking, Easement Holder will nntif; IRT in writinganduse its best efforts to prevent the Declaration from being terminated with respect to the taken Property without IRT approval. (a) If the taken Property remains subject to the Declaration or the Declaration is terminated with IRT approval, then no further action is required of the Easement Holder. (b) If, however, the Declaration is terminated with respect to the taken Property without IRT approval, then the preservation, enhancement and restoration of the streams and wetlands on the taken Property will be lost. The lost preservation, enhancement and restoration of such streams and wetlands are referred to as "Lost Mitigation." i. If any Credits generated from the Lost Mitigation have not been sold as of the Taking, then IRT may reduce the number of Credits available for sale by the number of unsold Credits generated from the Lost Mitigation. ii. If any Credits generated from the Lost Mitigation have been sold prior to the Taking (the "Sold Credits"), then in addition to any other award Easement Holder may pursue, Easement Holder must pursue an award for the value of the Lost Mitigation associated with the Sold Credits (the "Lost Mitigation Award"). Easement Holder and IRT agree that the value of the Lost Mitigation associated with the Sold Credits equals the value of the Sold Credits as of the Taking. Unless a court of competent jurisdiction has already determined the appropriate valuation of the Lost Mitigation Award, Easement Holder will seek an award in accordance with the valuation set forth above. (e) If, and only if, Easement Holder obtains a Lost Mitigation Award, then Easement Holder will use the award to purchase Credits from another Bank or make an in lieu fee contribution. (d) Notwithstanding the foregoing, any award for the Lost Mitigation associated with the Sold Credits does not reduce the award to which the Owner or Easement Holder is entitled in connection --with a -Taking. - -- WITNESS the following signature the day and year first above written. 1yffill ` FRIED LLC, a Virginia limited liability company Name: Barbara J. Fried Title: Manager COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF The foregoing instrument was acknowledged before me this 2-� day of 2012, by Barbara J. Fried, as Manager of FRIED LLC, a Virginia limited liability company, on behalf of the company. My commission expires: VICKI D. SHIFFLETT Notary Public NOTARY PUBLIC Notary Registration No. REGISTRATION # 140840 COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES TNOVEMBER 30, 2013 EASEMENT HOLDER: --INNISF-REE-ST-REAM MITIGATION BANK LLC, - - a Virginia limited liability company By: /Z 47 l/ �' wr Name: KI � t r el % 17 e He, Title: /qc,,u COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF , to -wit: The foregoing instrument was acknowledged before me this � 4 day of �v 2012, by `V-!� LVZ�A V � Yw L as f of Innisfree Stream Mitigation Ba LLC, a Virginia limited liability Company, on behalf of the company. My commission expires: Notary Public Notary Registration No.: TM IFFLETT UBLIC # 140840 OF VIRGINIA N EXPIRES HOVE30, 2013 Exhibit A To Declaration Fried LLC, a Virginia limited liability company Property part TMPs 01400-00-00-00500, 1300-00-00-011A0, 01300-00-00-011 BO All that certain area of land located in Albemarle County, Virginia, containing 264.8074 acres, more or less, as shown on a plat entitled COMPILED PLAT SHOWING A CONSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, LLC, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT ALBEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, which is attached to the Easement (as defined in this Declaration) and recorded prior hereto. BEING a portion of the same property conveyed to Fried, LLC, a Virginia limited liability company, by deed from Ruth R. Blackman, widowed and not remarried, dated October 29, 1999, recorded October 29, 1999, in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 1869, page 616, and by and by Deed of Boundary Line Adjustment and Easement from Innisfree Incorporated, a Virginia corporation, dated July 19, 2008, and recorded September 19, 2008, in Deed Book 3646, page 694 (as to TMP 01400-00-00-00500); and by deed from Wachovia Bank, N.A., sole -surviving Trustee and Wachovia Bank N.A., Executor of the Estate of John E. Sheridan, dated February 9, 2005, recorded February 24, 2005, in the aforesaid Clerk's Office, in Deed Book 2925, page 43 (as to TMPs 01300-00-00-011A0 & 01300-00-00-011 B0). 00310611.DOCX Exhibit B Refer to the COMPILED PLAT SHOWING A CONSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, LLC, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT ALBEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, which is attached to the Easement (as defined in this Declaration) and recorded prior hereto. fl :•aa �tu;�7L S;F: 00310697.DOC Albemarle County Tax Parcel: 01400-00-00-01 ODO Insured by: Chicago Title Insurance Company Prepared by Lisa Anne Hawkins, Esq. Lenhart Obenshain PC PO Box 1287 Harrisonburg, VA 22803 DECLARATION OF RESTRICTIVE COVENANTS THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration"), made this Q:50- day of t\ rtvc �, 2012, by LEIGH SATO and IZRAEL ZAK (jointly and severally, the "Owner"),-dnd INNISFREI, STREAM MITIGATION BANK LLC, a Virginia limited liability company, as assignee (the "Easement Holder"), each to be indexed as grantor, INNISFREE INCORPORATED, joins in this instrument for the limited purposes stated as holder of a right of first refusal on the property and who shall be indexed as an additional grantor for recordation purposes, recites and provides as follows: RECITALS: WHEREAS, Owner owns certain real property located in Albemarle County, Virginia, and being more particularly described on Exhibit A and depicted on Exhibit B, both Exhibits being attached hereto and incorporated herein by this reference, being Albemarle County Tax Parcel 01400-00-00- 010DO as more particularly described in the deed by which Grantor acquired title, which is of record in the Office of the Clerk of the Circuit Court of Albemarle County, Virginia, as Deed Book 1805, page 624 (the -- "Owner's Tract"). WHEREAS, pursuant to that certain Mitigation Easement Agreement dated J_OL"BAN za5 , 2012 and duly recorded in the Clerk's Office in Deed Book 4i//zdt page L 3S (theJ"Easement"), Owner gave, granted and conveyed to Easement Holder an exclusive easement in gross in, on, upon, across, over, under and through, and the right in perpetuity to use and to restrict the use of, a portion of the Owner's Tract, comprised of 5.0590 acres (the "Property"). The Easement was granted in order to, among other things, restrict the Property as set out therein, and to carry out any and all activities on or relating to the Property that are consistent with the creation, use, management, operation, reservation and perpetual care of a Mitigation Bank (as defined below) on the Property in accordance with that certain Mitigation Banking Instrument dated.6ucwA �)S > 2012, as more particularly described in the Easement (the "MBI"), by and among the Owner as Grantor, the Easement Holder, as Grantee, and the Interagency Review Team, as such term is defined in the MBI (the "IRT"), or any activities that are otherwise permitted by the Easement (the "Easement Rights"). WHEREAS, pursuant to the MBI, Easement Holder is required to impose or have imposed on the Property restrictive covenants to protect and conserve preserved streams and wetlands, restored stream and wetlands, enhanced streams and wetlands, created wetlands, uplands, and areas of the e es ric ive ovenan s c g o the terms of the Easement, Owner and Easement Holder together possesses or own the requisite property interests in the Property to impose these Restrictive Covenants on the Property. WHEREAS, Easement Holder and Owner desire to enter into and record this Declaration, and a member of the IRT has executed this Declaration to acknowledge its express written approval of this Declaration. AGREEMENT NOW THEREFORE THIS DECLARATION WITNESSETH: The Owner and Easement Holder do hereby declare, covenant and agree, for themselves and their successors and assigns, that the Property and the Easement Rights shall be hereafter held, leased, transferred, and sold subject to the following conditions and restrictions which shall run with the land in perpetuity and be binding on all parties and persons claiming under them. I Recitals. The foregoing Recitals are hereby incorporated herein and made a part hereof to the same extent as if set forth herein in full. 2 Restrictive Covenants. The Property shall be preserved in perpetuity in its natural state, by prohibiting the following activities: (a) Destruction or alteration of the Property except: i. alterations necessary to construct the stream and wetland mitigation areas and associated improvements, including, without limitation, dams, outlet structures and spillways, nature trails, and interpretive stations, proposed to be built by Easement Holder, or its successors or assigns, as a mitigation bank as the same may be permitted ---under the terms -of theNMI(the "Mitigation Bank");- ii. alterations necessary to ensure the success of the Mitigation Bank and in conjunction with the construction, reconstruction, monitoring, or maintenance of the constructed mitigation areas, as the same may be permitted under the terms of the NMI; iii. alterations to construct structures such as walkways, boardwalks, foot trails, wildlife observation or management structures, nesting boxes, benches, observation decks, picnic tables, fence posts (spaced in a manner so that neither the posts nor the fence itself prevents the natural movement of water), and ecological, biological, hydrological or chemical monitoring, observation or management equipment including, without limitation, monitoring wells, water control weirs or interpretive stations, or other structures approved by the IRT, provided that (i) any such structures permit, and do not impede, the natural movement of water, and (ii) such facilities are constructed and maintained in accordance with all applicable federal and state laws; iv. additions of signs constructed in public rights of way by or on behalf of the Virginia Department of Transportation or other governmental agencies; vi - rem oval of vegetation (Acre not (I) removal of noxious or invasive plants, or (II) removal of dead, dying or diseased trees 2 and other vegetation, particularly which fall on the road or bridge; vii. planting of native species of wetlands plants by hand for aesthetic landscaping or screening purposes and where not prohibited by the MBI; viii, alterations authorized by the MBI and by the Corps; authorized by the MBI and the DEQ under Permit Number .1Y)D and other activities permitted by the DEQ and the Corps pursuant to the Virginia Water Protection Permit program and Section 404 of the Clean Water Act, respectively; ix. alterations as reasonably necessary to comply with applicable state or federal laws or court orders. (b) Construction, maintenance or placement of any structures or fills including, without limitation, buildings, and mobile homes, other than those that exist on the date this Declaration is recorded; (c) Ditching, draining, diking, damming, filling, excavating, grading, plowing, flooding/ponding, mining, drilling, placing of trash and yard debris or removingladding topsoil, sand, or other materials, except as may, be necessary on a case -by -case basis with prior written approval by the IRT or as authorized by the MBI; (d) Permitting livestock to graze, inhabit or otherwise enter the Property; (e) Harvesting, cutting, logging, and pruning of trees and plants, or using fertilizers and spraying with biocides, other than what is authorized by the MBI, (except as may be necessary on a case -by - case basis with prior written authorization by the IRT); and (f�-Utilizing_a_non-reporting Nationwide _Permit _or State Program_ General Permit under Section_ 404 of the Clean Water Act or state general permits under VWPP regulations to impact any Waters of the United States, or any State Waters on the Property. Notification to the IRT is required for the use of any Nationwide Permit, State Program General Permit, Regional Permit, or state general permit under VWPP regulations. 3 Permitted Activities. In addition to those activities permitted under Paragraph 2 above, the following activities shall be permitted on the Property: (a) Easement Holder shall have access to, and the right to enter and remain upon, the Property at all times to establish, use, operate, restore, repair, maintain and preserve on the Property a bank for compensatory mitigation for unavoidable impacts to waters of the United States, including wetlands and streams, resulting from activities authorized under applicable federal and state laws, and for any purposes consistent with the terms of this Declaration ("Mitigation Activities"), and for any purposes consistent with the terms of this Declaration and with the MBI, and to authorize Easement Holder's employees, agents, consultants and contractors (including subcontractors not in privity with Easement Holder) to do the same, as provided in the Easement; (b) Easement Holder shall have the right to conduct stream or riparian restoration activities. Restoration activities can involve soil disturbanceprovided such activities do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property. In addition, fertilizers can be selectively applied to add in the establishment of native vegetation planted as part of restoration efforts; (c) Easement Holder and/or Owner shall have the right to construct, maintain, repair and replace nesting boxes, viewing platforms and hides within the Property provided that any such structure permits the natural movement of water and preserves the natural contour of the ground; (d) Easement Holder and/or Owner shall have the right to remove, and consent to the removal of, Invasive Plants and Animals. Easement Holder and/or Owner shall have the right to use biocides in these efforts; (e) Recreational activities by Owner and its invitees are permitted on the Property, including, but not limited to, hiking, biking, kayaking, canoeing, swimming, bird watching, nature study, bow hunting, fishing, photography, environmental education, equine activities and related activities, provided they do not cause substantial damage to or removal of the trees or other vegetation in the Property or otherwise harm riparian and aquatic habitats associated with the Property; (f) Motorized vehicles may be utilized without limitations during stream and wetland restoration activities and maintenance of restoration activities. Other maintenance and wildlife management activities must be conducted from Roads and Trails. The operation of motorized vehicles, electric golf carts and/or electric utility vehicles may be conducted on all Roads and Trails within the Property; and (g) Access may be allowed to the Property by purchasers and potential purchasers of mitigation credits, government officials and regulators, and researchers, for any and all purposes, related to the restoration and mitigation that are not prohibited by or inconsistent with this Easement or the MBI, such access to be at reasonable times after reasonable prior notice, except in cases of an emergency, and with accompaniment by Owner at Owner's option; (h) To transfer Easement Holder's interest in the Property to any person or entity to the extent permitted by the terms of the Easement; (i) To use all public and private roads located on the Owner's Tract for the purpose of accessing the Property to conduct the Mitigation Activities, and to the extent Easement Holder is unable to reasonably access any Property by way of a public or private road, Easement Holder has the right of ingress and egress over those portions of the Owner's Tract lying between such public or private roads and the Property, but only in such manner as will occasion the least practicable damage to the Owner's Tract and Easement Holder must promptly repair any damage caused while exercising this right of ingress and egress. Easement Holder shall, and shall cause all its employees, contractors and agents to close all gates which are passed during ingress or egress. 4 Amendment or Modification. This Declaration shall not hereafter be amended or modified in any respect without the express written approval and consent of the Owner, or its successors and assigns, and the IRT. Owner, or its successors and assigns, may apply anytime to the IRT for amendment, modification or termination of this Declaration; provided, however, that after being recorded this Declaration may only be amended, modified or terminated by a recorded document signed by the IRT and the Owner or its successors or assigns. The Owner must provide 60-day advance written notification to the IRT and the Corps before any action is taken which may void or 4 rights or claims to the Property (to the extent a transfer of title or establishment of any other legal rights or claims to the Property has the effect of voiding or modifying the Restrictive Covenants). Further, Owner hereby agrees that so long as Easement Holder is the sponsor of the Mitigation Bank under the MBI, Owner will not agree to amend, modify or terminate the Restrictive Covenants without the approval of Easement Holder. 5 Compliance Inspections and Enforcement. The IRT and its authorized agents (acting under written authorization by the IRT) shall have the right to enter and go on the Property at any time to inspect the Property and take actions necessary to verify and enforce compliance with the Restrictive Covenants. The Restrictive Covenants shall be enforceable by any proceeding at law or in equity or administrative proceeding by the IRT and any member of the IRT, including the Corps and DEQ (as defined in the MBI). Failure to enforce any of the Restrictive Covenants shall in no event be deemed a waiver of the right to do so thereafter. 6 Severability Provision. The provisions hereof shall be deemed individual and severable and the invalidity or partial invalidity or unenforceability of any one provision or any portion thereof shall not affect the validity or enforceability of any other provision thereof. 7 Litigation in Court. In any state court action, Corps reserves the right to be represented by the U.S. Department of Justice and/or to remove a legal action affecting jurisdictional waters of the U.S. to the United States Federal District Court in the district where the land lies. 8 Further Assurances. Each party hereto covenants and agrees to execute and deliver, or cause to be executed and delivered, and to do or make, or cause to be done or made, upon the reasonable request of any party hereto, any and all instruments, papers, deeds, acts or things, supplemental, confirmatory or otherwise, as may be reasonably required by such party for the purpose of effecting this Declaration. 9 Successors and Assigns. This Declaration shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. 10 Entire Agreement. This Declaration constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior discussions, understandings, agreements and negotiations between the parties hereto; however, this provision does not apply to the Easement or to the MBI. 11 Mortgage Consent. Owner represents and warrants that no consent to the terms and provisions of this Declaration is required from the beneficiaries of any mortgages or deeds of trust encumbering the Property, or if such consent is required, all consents have been obtained in writing. 12 Eminent Domain. If any Property is condemned or taken pursuant to governmental action or other exercise of the power of eminent domain (a "Taking"), or if Easement Holder receives notice of a potential Taking, Easement Holder will notify IRT in writing and use its best efforts to prevent the Declaration from being terminated with respect to the taken Property without IRT approval. a e a en rope y remains su Jec o e ec ara ion or a ec ara ion is ermma e wi IRT approval, then no further action is required of the Easement Holder. (b) If, however, the Declaration is terminated with respect to the taken Property without IRT approval, then the preservation, enhancement and restoration of the streams and wetlands on the taken Property will be lost. The lost preservation, enhancement and restoration of such streams and wetlands are referred to as "Lost Mitigation." i. If any Credits generated from the Lost Mitigation have not been sold as of the Taking, then IRT may reduce the number of Credits available for sale by the number of unsold Credits generated from the Lost Mitigation. ii. If any Credits generated from the Lost Mitigation have been sold prior to the Taking (the "Sold Credits"), then in addition to any other award Easement Holder may pursue, Easement Holder must pursue an award for the value of the Lost Mitigation associated with the Sold Credits (the "Lost Mitigation Award"). Easement Holder and IRT agree that the value of the Lost Mitigation associated with the Sold Credits equals the value of the Sold Credits as of the Taking. Unless a court of competent jurisdiction has already determined the appropriate valuation of the Lost Mitigation Award, Easement Holder will seek an award in accordance with the valuation set forth above. (c) If, and only if, Easement Holder obtains a Lost Mitigation Award, then Easement Holder will use the award to purchase Credits from another Bank or make an in lieu fee contribution. (d) Notwithstanding the foregoing, any award for the Lost Mitigation associated with the Sold Credits does not reduce the award to which the Owner or Easement Holder is entitled in connection with a Taking. INNISFREE INCORPORATED holds a right of first refusal on the Property described on Exhibit A, and joins in this Easement as the holder of such right for the sole purposes of consenting to this Declaration and evidencing its agreement that the right of first refusal is not triggered by this conveyance but that the Property shall continue be held subject to the right of first refusal as well as the terms, conditions and restrictions of this Declaration. WITNESS the following signature the day and year first above written. OWNER: Leigh Sato Izrael Zal 2 COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF AA bLwy" , to -wit: The foregoing Declaration of Restrictive Covenants was acknowledged before me this 2-(a day of S\pq > x�� , 2012, by Leigh Sato and Izrael Zak. My commission expires: VICKI D. :SHIFFLETT Notary Public NOTARNotar Re istration No. L40�L+Q REGISTRATIO0840 Y gCOMMONWEAIRGINIAMV COMMISPIRESNOVEMBE13 ADDITIONAL GRANTOR: INNISFREE, INCORPORATED, a Virginia corporation (formerly known as CAMPHILL VILLAGE OF THE POTOMAC, INC.) By: C� Ctit�.s Name: C A RRD l� Title: E�-cC.-ki- .VE 1 « COMMONWEALTH FVIRGINIA, CITY/COUNTY OFmato-wit: -- c- �,�TZ e ` The foregoing instrument was acknowledged before me this � S day of- 2012, by Ca ku\V-% hwv as �of INNISFREE, INCORPORATE a Virginia VV ginia corporation, on behalf of the compari­y_.'--1Ey-ei�vz My commission expires: k \- -I)b VICKI D. SHIFFLETT NOTARY PUBLIC REGISTRATION # 140840 Notary Public e COMMONWEALTH OF VIRGINIA ` 1 M COMMISSION 2013ES Notary Registration No.: '1 - l U� c) NOVEM EASEMENT HOLDER: INNISFREE STREAM MITIGATION BANK LLC, a Virginia limited liability company Name: 4. r,/ F �•%!B r ro Title: irq c.aF a COMMONWEALTH OF VIRGINIA, CITY/COUNTY OF AA1, to -wit: The foregoing instrument was acknowledged before me this 2 5 day of Jam, 2012, by"Rxxe: A F. Qty"&s of Innisfree Stream Mitigation Bank L C, a Virginia limited liability company, on behalf of the company. My commission expires: 00299189.v2 Notary Public Notary Registration No.: `Ab<6 EG VICKI :PUBLIC TT NOTAREGISTRA4084000MMONWEVIRGINIAMY COMMXPIRESNOVEM013 Exhibit A To Declaration Leiah Sato and Izrael Zak ProDert part TMP 01400-00-00-010D0 All that certain area of land located in Albemarle County, Virginia, containing 5.059 acres, more or less, as shown on a plat entitled COMPILED PLAT SHOWING A CONSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, LLC, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT ALBEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, which is attached to the Easement (as defined in this Declaration) and recorded prior hereto. BEING a portion of the same property conveyed to Leigh Sato and Izrael Zak, wife and husband, by four interest deeds from Hiroatsu Sato and Phyllis Sato, husband and wife, dated December 16, 1996, recorded December 20, 1996, in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 1583, page 673; deed dated January 2, 1997, recorded January 10, 1997, in the aforesaid Clerk's Office in Deed Book 1587, page 124; deed dated March 25, 1998, recorded April 6, 1998, in the aforesaid Clerk's Office in Deed Book 1690, page 500; and by deed dated April 5, 1999, recorded April 5, 1999, in the aforesaid Clerk's Office in Deed Book 1805, page 624. 00310611.DOCX Exhibit B Refer to the COMPILED PLAT SHOWING A CONSERVATION EASEMENT ON THE PROPERTIES OF INNISFREE INC., FRIED, LLC, FRIED FARM, LLC, & LEIGH SATO & IZRAEL ZAK, WHITE HALL DISTRICT ALBEMARLE COUNTY VIRGINIA, by LandTech Resources, Inc. dated October 7, 2011, which is attached to the Easement (as defined in this Declaration) and recorded prior hereto. a try ip. r.opv by: 00310697.DOC