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Home My WebLink AboutSUB201600139 Plan - Submittal (First) 2016-07-06TMP: 05500-00-00-11000 This document prepared by and to be returned to: Daniel Hansen Balzer & Associates, Inc. 1561 Commerce Road, Suite 401 Verona, Virginia 24482 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF OPEN SPACE AND LANDSCAPE MAINTENANCE THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF OPEN SPACE AND LANDSCAPE ATDS ADL` MAINTENANCE (the "Declaration") is made this 23 day of [June], [2016], by Froehling & Robertson, Inc., a Virginia Corporation Limited Liability ity r,,.,,,,an , ("Declarant") and the County of Albemarle and its successors and assigns ("Beneficiary"). WITNESSETH: WHEREAS, Declarant is the owner of a parcel of land known as Albemarle County Tax Map L55_] Parcel [_110_] pursuant to the plat/deed in Deed Book r_v_', Page r_v_'; an Deed Book [_1124_], Page [_313_] (the "Property"); and WHEREAS, Declarant desires to restrict the use of that portion of the property as shown and described on a plat by [Balzer & Associates, Inc.] dated [June 23, 2016], a copy of which is hereto attached and made part of this Declaration (hereinafter, the "Plat") Let-[_#_] designated on the Plat as "SWM Open Space Easement Let" in order to assure that said portion of the property hot shall be maintained as open space in perpetuity unless otherwise set forth in section 5 of this Declaration; and MEMENERMH • ._ W-1 ilffilklill �as�z�e!�ee!�: 11111. aAMEN. THRE. Pit MELVA WHEREAS, Declarant desires to restrict the use of that portion of the property as shown and described on a plat by [Balzer & Associates, Inc.] dated [June 23, 2016], a copy of which is hereto attached and made part of this Declaration (hereinafter, the "Plat") Let-[_#_] designated on the Plat as "SWM Open Space Easement Let" in order to assure that said portion of the property hot shall be maintained as open space in perpetuity unless otherwise set forth in section 5 of this Declaration; and MEMENERMH • . �eses� . '40'.. W-1 ilffilklill �as�z�e!�ee!�: 11111. Pit MELVA . _ 10; • . . _I ,, . ►.i:�s+s�e!s�!�rr_eses�.��.�: f•7:�e��ri ss!r_�.��s:ti �s��.��!s WHEREAS, Declarant wishes to subject the Property to various covenants and restrictions, and Beneficiary intends to join herein to evidence its consent. NOW THEREFORE, in consideration of the foregoing recitals incorporated herein and made a part hereof, the Declarant declares that the Property (as the same is more particularly described on Schedule "A", attached hereto and made a part hereof by this reference) shall be held, transferred, sold, conveyed and occupied subject to the covenants, conditions, restrictions, licenses and reservations hereinafter set forth, which are for the purposes set forth in the Recitals (incorporated herein by this reference) which shall be binding on all parties having any right, title or interest in the Property or any part thereof, their respective successors and assigns, and which shall inure to the benefit of each owner thereof. SECTION ONE RESTRICTIONS Declarant hereby declares that the portion of the property Let designated as "SWM Open Space Easement Det" on the Plat shall continue to subsist as forested/wooded/meadow area and shall not be disturbed or graded other than as set forth herein. Accordingly, restrictions are hereby imposed on the use of the "SWM Open Space Easement Det" pursuant to the purposes set forth in the Recitals, and the restrictions are as follows: 1. Industrial or commercial activities are prohibited, with the exception of activities to restore or enhance wetlands or streams or restore, enhance, or develop other ecosystem functions on the SWM Open Space Easement Det including, but not limited to, stream bank restoration, wetland and stream mitigation, biological carbon sequestration and biodiversity mitigation, provided that such activities are not in conflict or inconsistent with the conservation purpose of the Declaration or the restrictions set forth herein. 2. Provided that the SWM Open Space Easement Det remains in a natural, vegetated state, educational, scientific, religious, or passive recreational activities are permitted on the SWM Open Space Easement Det, provided that they are consistent with the purposes of this Declaration and do not impair the purposes stated forth herein. Recreational activities may include use of all or any portion of the SWM Open Space Easement Det as a park for passive recreational activities, such as hiking, photography, bird watching, and nature study. 3. No buildings, structures, or permanent roads (public or private) are permitted on the SWM Open Space Easement Det, provided, however, that the SWM Open Space Easement Det may be subjected to various easements for subsurface utilities (public or private) serving the remainder of the Property or other adjacent parcels, all as may be deemed commercially reasonable by Declarant or Albemarle County (the "County"), provided, however, that after installation, maintenance or removal of such utilities, any disturbed soil shall be immediately restored to its original condition or an engineered soil mix shall be placed per the design specifications, and the SWM Open Space Easement Let shall be returned to a natural vegetated state. 4. Accumulation or dumping of trash, refuse, junk or toxic materials is not permitted on the SWM Open Space Easement Let. 5. No billboards or other signs may be displayed on the SWM Open Space Easement Let, except for signs that relate to the SWM Open Space Easement Let or to permitted/prohibited activities (including commercial activities) thereon as determined by Declarant from time to time in its reasonable discretion. SECTION TWO MANAGEMENT Declarant, or its successors and assigns, as applicable, shall maintain the SWM Open Space Easement Let in a natural, vegetated state, provided, however, that Declarant, or any successors and assigns, as applicable, shall manage such undisturbed areas as deemed reasonably necessary by Declarant, or any successors or assigns, in order to practice forest management, control invasive species, replant, revegetate and, where appropriate, bush hog to maintain the desired vegetative community (provided, however, that bush hogging shall not be performed more than four (4) times per calendar year). Specifically, Declarant or any successors or assigns may remove or control, as appropriate: (1) trees and vegetation to control insect and disease infestations and to prevent personal injury or property damages; (2) dead, diseased and dying trees; (3) vegetation that is determined to be an "invasive exotic species", as such species shall be determined by reference to the appropriate federal or state agency list available at the time of removal or control; and (4) fallen trees that are blocking stream channels, or trees with undetermined root systems in imminent danger of falling, where stream bank erosion is a current or potential problem that outweighs any positive effects the fallen tree or trees may have on the stream ecosystem. Nothing contained herein shall limit the ability of Declarant, or any successors or assigns, from engaging in such other forest, land, water, wildlife management and environmental activities and undertakings as such party deems appropriate for sound farming or land management practices. ►.. SECTION THREE FAOUR BENEFICIARY'S CONSENT Beneficiary joins herein to evidence its consent to this Declaration provided, however Beneficiary makes no warranty or any representation of any kind or nature concerning the Declaration or any of its terms or provisions, or the legal sufficiency thereof and disavows any such warranty or representation, it being understood that Beneficiary does not assume and shall not be responsible for any of the obligations or liability of Declarant, its successors or assigns, as contained in this Declaration. SECTION FOUR FW -E ENFORCEMENT Although it is not a party to this Declaration, the County is an intended third party beneficiary of the terms, conditions and restrictions imposed herein and shall have all of the rights to enforce such terms, conditions and restrictions as the same are set forth in this Section. Declarant hereby creates, reserves for itself, and grants to the County, a perpetual right and license, without obligation, for their respective authorized employees and agents to enter upon the SWM Open Space Easement Let at reasonable times and upon reasonable notice to the owner to inspect for compliance with the limitations set forth in Section 1. In the event the County determines that a violation of this Declaration exists, it may pursue any and all remedies available at law or in equity against the then owner of the SWM Open Space Easement Let to enforce this Declaration, including, seeking to enjoin the violation and to require corrective action. Any costs which the County reasonably incurs in taking enforcement action under this Declaration shall, upon the County's written demand, be promptly reimbursed by the owner of the SWM Open Space Easement Let or that portion thereof which is determined to be in violation until paid. Enforcement action shall be at the County's discretion and delay or forbearance by the County in exercising its rights hereunder in the event of a breach shall not constitute a waiver by the County of the right thereafter to take action with respect to the same or any subsequent breach. Nothing contained herein shall be construed to grant any right of access over the SWM Open Space Easement Let to the general public. SECTION FIVE SIX GENERAL PROVISIONS I . Duration. This Declaration shall be perpetual. It is a Declaration in gross that runs with the land as an incorporeal interest in the Property. The covenants, terms, conditions, and restrictions contained in this Declaration are binding upon, and inure to the benefit of, the parties hereto and their successors and assigns, and shall continue as a servitude running in perpetuity with the Property. The rights and obligations of an owner of the Property under this Declaration terminate upon proper transfer of such owner's interest in the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. 2. Termination. If prohibited future development or activity as set forth in section 1 is desired, then the easement shall be adjusted accordingly with the proposed disturbance being treated in accordance with the current Virginia Stormwater Management Handbook requirements. In addition to meeting these requirements, the beneficiary of the proposed activity shall be responsible to offset for the proposed disturbed area any prior treatment accounted for in the stormwater calculations for the property described in this Declaration. Upon termination of any portion of this easement, any residue easement shall still be subject to this Declaration. 3. Access. Although this Declaration may benefit the public, nothing herein shall be construed to convey to the public a right of access to, or use of the SWM Open Space Easement Let. Subject to the terms hereof and any other covenants, restrictions or conditions which affect the SWM Open Space Easement Det, the Declarant retains the exclusive right to such access. 4. Authority. Declarant represents and warrants that it has all right and authority to grant and convey this Declaration, and that the Property is free and clear of all encumbrances (other than restrictions, covenants, conditions, and utility and access easements of record), including, but not limited to, any mortgages or deeds of trust not subordinated to this Declaration. 5. Interaction with Other Laws. This Declaration does not permit any use of the Property that is otherwise prohibited by federal, state, or local law or regulation. 6. Construction. Any general rule of construction to the contrary notwithstanding, this Declaration shall be liberally construed in favor of the grant to effect the purposes of the Declaration and purposes of Declarant. If any provision of this Declaration is found to be ambiguous, an interpretation consistent with the purpose of this Declaration that would render the provision valid shall be favored over any interpretation that would render it invalid. Notwithstanding the foregoing, lawful acts or uses consistent with the purpose of and not expressly prohibited by this Declaration are permitted on the SWM Open Space Easement Let. 7. Reference to Declaration in Subsequent Deeds. This Declaration shall be referenced by deed book and page number, instrument number or other appropriate reference in any deed or other instrument conveying any interest in the Property. Failure of any grantor to comply with this requirement shall not impair the validity of the Declaration or limit its enforceability in any way. 8. Amendment. Declarant may amend this Declaration to enhance or clarify the SWM Open Space Easement's Lets conservation values or add to the restricted property by an amended declaration, provided that no amendment shall (i) affect this Declaration's perpetual duration unless terminated as set forth above, or (ii) conflict with or be contrary to or inconsistent with the purpose of this Declaration. No amendment shall be effective unless documented in a notarized writing executed by Declarant, or its successors or assigns, as applicable, and recorded in the Clerk's Office. [The remainder of this page intentionally left blank. Signatures follow on the next page.] WITNESS the following duly authorized signatures: Froehfing & Robertson, Inc., a Virginia Corporation limited liability eempany By: Name: Tim Glynn Its: Chief Financial Officer COMMONWEALTH OF VIRGINIA CITY/COUNTY OF , to -wit: The foregoing instrument was acknowledged before me this day of , 2016, by TIM GLYNN, Chief Financial Officer of Froehling & Robertson, Inc., a Virginia Corporation limited liability eempaBy, on its behalf. Notary Public My commission expires: Notary registration number: SCHEDULE "A" Property Description Parcel III as described in Deed Book 1124, Page 316: ALL that certain parcel of land together with improvements thereon and appurtenances thereunto belonging, in the County of Albemarle, Virginia containing 1.762 acres as shown as Tax Map Parcel 55-110 on the Plat and upon which Plat the property is bounded and described as follows: TO find the point and place of beginning, commence at an iron set in the southern line of the right of way of U.S. Route 250 located 2,502.99 feet west of a VDOT monument; thence S 83° 05' 57" W a distance of 233.76 feet to an iron set, the point and place of beginning; thence S 03° 01' 54" E a distance of 224.17 feet to an iron set; thence S 71' 18' 13" W a distance of 300.00 feet to an iron set; thence N 07° 26' 43" W a distance of 285.00 feet to a VDOT monument found; thence N 83° 05' 57" E a distance of 311.50 feet to an iron set, the point and place of beginning. BEING the same parcels of property conveyed to Glen A. Weast and Dan R. Weast by deed from Joel M. Chochran, Trustee, dated February 7, 1976 and recorded in the Clerk's Office, Circuit Court, Albemarle County, Virginia in Deed Book 589, page 471. IM