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HomeMy WebLinkAboutSUB201600156 Easements 2016-10-26TMPs: 07600-00-00-04980; 07600-00-00-049CO This document prepared by and to be returned to: Collison F. Royer (VSB 65893) Royer Caramanis & McDonough, PLC 200-C Garrett Street Charlottesville, Virginia 22902 DEED OF DEDICATION AND EASEMENT THIS DEED OF DEDICATION AND EASEMENT is made this _26 day of &." Imr, 2016, by and among WINTERGREEN FARM PHASE II, LLC, a Virginia limited liability company ("WFPII"); WINTERGREEN FARM PHASE III, LLC, a Virginia limited liability company ("WFPIII", sometimes referred to together with WFPII as "Grantor"); and COUNTY OF ALBEMARLE, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "County"). WITNESSETH: WHEREAS, as evidenced by that certain special warranty deed from Wintergreen Farm, LLC, a Virginia limited liability company ("Wintergreen"), dated April 26, 2016, and recorded in the Clerk's Office (the "Clerk's Office") of the Circuit Court of Albemarle County, Virginia, on May 16, 2016, in Deed Book 4757, page 145, WFPII is the fee simple owner of County Tax Map Parcel Number 07600-00-00-049130, consisting of 20.886 acres, more or less (the "Phase II Parcel"). WHEREAS, as evidenced by that certain special warranty deed from Wintergreen dated April 26, 2016, and recorded in the Clerk's Office on May 16, 2016, in Deed Book 4757, page 150, WFPIII is the fee simple owner of County Tax Map Parcel Number 07600-00-00-051 CO, consisting of 20.732 acres, more or less (the "Phase III Parcel", and together with the Phase II Parcel, the "Parcels"). WHEREAS, as evidenced by that certain special warranty Gleed from Wintergreen dated April 11, 2016, and recorded in the Clerk's Office on April 12, 2016, in Deed Book 4744, page 630, SM Charlottesville, LLC, a Virginia limited liability company ("SM Charlottesville") is the fee simple owner of County Tax Map Parcel Number 07600-00-00-049CO3 consisting of 35.326 acres, more or less (the "Phase I Parcel"). WHEREAS, SM Charlottesville intends to acquire the Parcels and, in conjunction with the Phase I Parcel, develop them into a residential neighborhood consisting of approximately eighty- five detached (8 5) single. family lots (the "Project"). WHEREAS, in connection with its approval of the Project, the County required that SM Charlottesville mitigate the impact of its development and disturbance of various stream buffers, and specifically with respect to SM Charlottesville's development of the Phase I Parcel, that, due to SM Charlottesville's inability to mitigate for such disturbance and impact on riparian areas within the Phase I Parcel, it obtain alternative mitigation sites in order to comply with the County's mitigation requirements. WHEREAS, in connection therewith, SM Charlottesville and the Board of Supervisors of the County have entered into an agreement entitled "Stormwater Management/BMP Facilities Maintenance Agreement" (the "Maintenance Agreement") in which SM Charlottesville has agreed to construct and maintain stormwater management/BMP facilities. WHEREAS, Section 4 of the Maintenance Agreement provides in part that SM Charlottesville obtain permission for the County, including its authorized agents and employees, to enter upon the property and to inspect the stormwater management/BMP facilities whenever the County deems necessary, and Section 5 of the Maintenance Agreement provides in part that, in the event the developer or, as applicable, the landowner, its successors and assigns, fails to maintain the stormwater management/BMP facilities in good condition acceptable to the County, the County may enter upon the property and take whatever steps necessary to repair or otherwise maintain the facilities and to otherwise correct deficiencies. WHEREAS, it is the desire and intent of the Grantor to dedicate, grant and convey an Easement for public use in accordance with this Deed of Dedication and Easement. NOW THEREFORE, in consideration of the premises and TEN DOLLARS ($10.00), cash in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WFPII, as the owner of the Phase II Parcel, hereby grants, conveys and dedicates to public use with GENERAL WARRANTY and ENGLISH COVENANTS OF TITLE unto the County, as grantee, its successors and assigns, a perpetual easement over, across, under and through the portion of the Phase II Parcel more particularly described on Schedule "A" (the "Phase II Easement"); and, WFPIII, as the owner of the Phase III Parcel, hereby grants, conveys and dedicates to public use with GENERAL WARRANTY and ENGLISH COVENANTS OF TITLE unto the County, as grantee, its successors and assigns, a perpetual easement over, across, under and through the portion of the Phase II Parcel more particularly described on Schedule "A" (the "Phase III Easement", and, together with the Phase II Easement, the "Easements" or the "Easement Property"). The Easements shall be subject to the following: 1. Right of ingress and egress. The County and its authorized agents and employees shall have the right and easement of ingress and egress over the Easement Property to perform all acts to which the parties have agreed it may perform under the Maintenance Agreement. 2. Ownership of the facilities. The stormwater management/BMP facilities required to be constructed and maintained by SM Charlottesville under the Maintenance Agreement shall be and remain the property of SM Charlottesville. This Deed of Dedication and Easement shall not be construed to be an assumption of ownership or control by the County over the stormwater management and BMP facilities subject to the Maintenance Agreement. 3. No obligation on Grantee to inspect or maintain. This Deed of Dedication and Easement shall not be construed as imposing an obligation on the County to repair or otherwise maintain the stormwater management/BMP facilities subject to the Maintenance Agreement. 4. County's right to assign. The County shall have the right to assign this Easement as its interests may require. 5. Binding effect. The Easement and the rights and obligations established herein shall run with the land in perpetuity, and shall be binding upon the Grantor, the County, and their successors and assigns. All references to the County when exercising any right or obligation herein, includes the County's officers, employees and agents. The County, acting by and through its County Executive, duly authorized by resolution adopted by the Board of Supervisors of the County of Albemarle, Virginia, accepts the conveyance of this property pursuant to Virginia Code § 15.2-1803, as evidenced by the County Executive's signature hereto and the recordation of this Deed. [The remainder of this page intentionally left blank. Signatures follow on the next page.] SM CHARLOTTESVILLE, LLC, a Virginia limited lijbility company By: Name: Its: COMMONWEALTH OF VIRGINIA CITY/COY OF 0 to -wit: The foregoing instrument was acknowledged before me this 4, day of O , 2016, by C , .- So. Rea iC;h of SM Charlottesville, LLC, a Virginia limited liability company, 'on its behalf. Notary Public tk�I!4IIJIIIf////�/ My commission expires: "L( zg I zm'c' LS/Y. Notary registration number: '2 tggW'S pPii1V�A( REGISZRAIIOV' N = 718960 Xp4RE5 __ WITNESS the following duly authorized signatures: WINTERGREEN FARM PHASE II, LLC, a Virginia limited liability company By: River Bend Management, Inc., a Virginia corporation, its Mang J By: Name: Its: .� r + za. CP COMMONWEALTH QE VIRGINIA g=/COUNTY OF (%1Lyk64er, Akf , to -wit: The foregoing instrument was ackn wledged before me this � day of 2016, by r' of River Bend Management, Inc., a Vir ' is corporation, as Manager of Wintergreen Farm Phase II, a Virginia limited liability compan n its behalf. — 4?z� Notary Public My commission expires: \,\I\1141 111111)/r. \ I ,.�•'' Ma1�0"'e M�'• Notary registration number: Lo `3 piggy %e o� - ca PUBLIC '- g REG. #7633624 E n : My COMMISSION ¢ r EXPMES '� p8?31,201s C9 WINTERGREEN FARM PHASE III, LLC, a Virginia limited liability company By: River Bend Management, Inc., a Virginia corporation, its Manger By: 0L— Name: iL . Its: PM X ft" COMMONWEALTH OF VIRGINIA l CITY/COUNTY OF ,�/le�l/i.o FSV1 \` , to -wit: O` ,�..,, The foregoing instrument was acknowledged before me this _ `&day of (J�y VP -Cr-, 2016, by AUn'O {' r; of River Bend Management, Inc.,Vara ginia corporation, as Manager of Wintergreen Farm Phase III, a Virginia limited liability company on its behalf. �7 Notary Public My commission expires: CO 3 � Notary registration number: 4 � p�g�C'3624 � HiQ% SG j9 O.t� COUNTY OF ALBEMARLE, VIRGINIA RhInEEMMMK561 RUM IN # COMMONWEALTH OF VIRGINIA CITY OF CHARLOTTESVILLE: The foregoing instrument was acknowledged before me this _(L,4 day of 1J. o V • , 2016, by 5 L Kola R o Q L , on behalf of the County of Albemarle, Virginia, Grantee. N tart' Public My Commission Expires: f o 31 Registration number: -Ic 5 3'i �a �4 Approved as to form: n. 0 �- rnm P U" �-' -I-1 Centy Attorney CHERYL L. SKEEN NOTARY PUBLIC REGISTRATION #I 7153762 COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES OCTOBER 31, 2019 SCHEDULE "A" All that certain tract or parcel of land shown and designated as "NEW VARIABLE WIDTH MITIGATION EASEMENT" on Sheet 3 of 5 of that certain easement plat prepared by Roudabush, Gale & Associates, Inc., Engineers Surveyors and Land Planners, dated August 2, 2016, last revised , 2016, and entitled "Easement Plat TMP 07600-00-00-049BO TMP 07600- 00-00-051 WINTERGREEN FARM SAMUEL MILLER DISTRICT ALBEMARLE COUNTY, VIRGINIA" attached hereto and incorporated herein by this reference. SCHEDULE "B" All that certain tract or parcel of land shown and designated as "NEW VARIABLE WIDTH MITIGATION EASEMENT" on Sheet 5 of 5 of that certain easement plat prepared by Roudabush, Gale & Associates, Inc., Engineers Surveyors and Land Planners, dated August 2, 2016, last revised �a�' 1 , 2016, and entitled "Easement Plat TMP 07600-00-00-049BO TMP 07600- 00-00-05110 WINTERGREEN FARM SAMUEL MILLER DISTRICT ALBEMARLE COUNTY, VIRGINIA" attached hereto and incorporated herein by this reference. • TMPs:07600-00-00-049B0;07600-00-00-049C0 This document prepared by and to be returned to: Collison F.Royer(VSB 65893) Royer Caramanis&McDonough,PLC 200-C Garrett Street Charlottesville,Virginia 22902 DEED OF EASEMENT THIS DEED OF EASEMENT (the "Deed") is made this 2.6 day of OC-'4dbtr , 2016, by and among WINTERGREEN FARM PHASE II, LLC, a Virginia limited liability company ("WFPII"); WINTERGREEN FARM PHASE III, LLC, a Virginia limited liability company ("WFPIII", and, for the purposes of this Deed sometimes referred to together with WFPII as"Grantor"); and SM CHARLOTTESVILLE,LLC,a Virginia limited liability company ("Grantee"). WITNES SETH : WHEREAS, as evidenced by that certain special warranty deed from Wintergreen Farm, LLC, a Virginia limited liability company("Wintergreen"), dated April 26, 2016, and recorded in the Clerk's Office (the "Clerk's Office") of the Circuit Court of Albemarle County, Virginia (the "County"), on May 16, 2016, in Deed Book 4757, page 145, WFPII is the fee simple owner of County Tax Map Parcel Number 07600-00-00-049B0, consisting of 20.886 acres, more or less (the "Phase II Parcel"). WHEREAS, as evidenced by that certain special warranty deed from Wintergreen dated April 26, 2016, and recorded in the County Clerk's Office on May 16, 2016, in Deed Book 4757, page 150,WFPIII is the fee simple owner of County Tax Map Parcel Number 07600-00-00-051 CO, consisting of 20.732 acres, more or less (the "Phase III Parcel"). WHEREAS, as evidenced by that certain special warranty deed from Wintergreen dated April 11, 2016, and recorded in the County Clerk's Office on April 12,2016, in Deed Book 4744, page 630, Grantee is the fee simple owner of County Tax Map Parcel Number 07600-00-00- 049CO3 consisting of 35.326 acres,more or less(the"Phase I Parcel", and,together with the Phase II Parcel and the Phase III Parcel,the "Parcels"). WHEREAS, Grantee intends to acquire the Phase II Parcel and the Phase III Parcel and develop the Parcels in phases into a residential neighborhood consisting of approximately eighty- five detached (85) single family lots (the "Project"), and, in connection therewith, Grantor and Grantee intend that, in advance of such purchase, Grantee shall have a non-exclusive blanket easement over, under and across each of the Phase II Parcel and the Phase III Parcel in order to perform various tasks in connection with the development of the Project including,but not limited to, certain development work relating to the Phase I Parcel. NOW, THEREFORE, for Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: rr 1. Subject to the terms and conditions of this Deed, each of WFPII and WFPIII does hereby GRANT, SELL, and CONVEY unto Grantee, a perpetual, non-exclusive easement and right-of-way for ingress and egress,in,over, along and across the Phase II Parcel and the Phase III Parcel, as well as a construction easement over, under and across each of the Phase II Parcel and the Phase III Parcel to clear, remove vegetation, grade, fill with dirt, install and construct utilities, stormwater and erosion control devices, change the slope,pave or gravel,all at Grantee's sole cost and expense as may be required in accordance with any County requirements for the Project (all together,the"Easement"). 2. The Easement is perpetual and non-exclusive, and there is hereby reserved to Grantor, its successors and assigns, with respect to the Easement, the right of egress and ingress, and the right to construct, install,maintain,modify,repair and remove any existing improvements of any kind or nature whatsoever, except as such would materially impair the exercise of Grantee of the rights granted to Grantee under Paragraph 1 hereof. 3. Grantee and its successors and/or assigns, at their sole cost and expense, shall be responsible for the construction, installation, maintenance, repair and insurance of any Project improvements of any kind or nature whatsoever within the Easement. 4. Grantee will not permit either of the Phase I Parcel or the Phase II Parcel to become subject to any mechanics', laborers', or materialmen's lien on account of labor or material furnished to Grantee or claimed to have been furnished to Grantee in connection with work of any character performed or claimed to have been performed on the such parcels by or at the direction or sufferance of Grantee; provided, however, Grantee shall have the right to contest in good faith and with reasonable diligence the validity of any such lien or claimed lien and on final determination of the lien or claim for lien, for so long as Grantee shall cause such lien to be bonded off or otherwise make any required deposit into the applicable court or administrative authority of any amounts necessary to discharge such lien in the event of such lien is determined to be valid by ruling of the applicable court or authority. Notwithstanding any of the foregoing, any lien created pursuant to this agreement shall be subordinate to the lien of any deed of trust on any portion of the Grantor's property. Grantor hereby further agrees to indemnify, defend with counsel reasonably acceptable to Grantee, and hold harmless Grantee from and against any and all claims, demands, actions, losses, liabilities, costs and expenses (including reasonable attorneys' fees) of any kind asserted against, suffered or incurred by Grantee or any of its agents, employees,invitees, and contractors, to the extent arising in any manner out of the negligent, intentional or willful acts of Grantor or its agents, employees, representatives, contractors or any other persons acting under their respective direction or control, in connection with the rights or obligations of Grantor under this agreement. By accepting and recording this Agreement, Grantee hereby agrees to indemnify, defend with counsel reasonably acceptable to Grantor,and hold harmless Grantor from and against any and all claims, demands, actions, losses, liabilities, costs and expenses (including reasonable attorneys' fees) of any kind asserted against, suffered or incurred by Grantor or any of its agents, employees, invitees, and contractors, to the extent arising in any manner out of the negligent, intentional or willful acts of Grantee or its agents, employees, representatives, contractors or any other persons acting under their respective direction or control, in connection with the rights or obligations of Grantee under this agreement. 5. The Easement and the rights, privileges and burdens associated therewith are covenants running with the land. 6. The Easement created hereby is a private easement only, and this Deed is not intended to, and shall not be construed to, dedicate to the public any easement or other rights in and to the Easement or any portion thereof. 7. This Deed shall not be construed to create any joint venture or partnership between Grantor and Grantee, and no such relationship is intended by the parties. 8. This Deed may be amended only by a writing signed by the party against whom such amendment is sought to be enforced. 9. This Deed shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia(excluding, however, such state's choice of law rules). 10. This Deed shall be recorded, and the cost and expense associated therewith shall be borne by Grantee. 11. To facilitate execution,this Deed may be executed in as many counterparts as may be required. It shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart. It shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind each party, appear on one or more such counterparts. All counterparts shall collectively constitute a single agreement. [The remainder of this page intentionally left blank. Signatures follow on the next page.] , WITNESS the following duly authorized signatures: WINTERGREEN FARM PHASE II, LLC, a Virginia limited liability company By: River Bend Management,Inc.,a Virginia corporation, its Manager By: - L Name: 6.t.. n.. 1 6110,--- Its: +,/Its: Art1•.0.4-2. i 0 -i...�- COMMONWEALTH O VIRGINIA CITY/COUNTY OF 0-k-1tSV‘\�Q_ , to-wit: The foregoing instrument was acknowledged before me this a LL day of c�\pm , 2016,by AtGV\cr \0 r , jvin0kJ) i 1‘...-- of River Bend Management, Inc., a Virginia corporation, as Manager of Wintergreen Farm Phase II, a Virginia limited liability compa , In is behalf Notary Public My commission expires: 0/ 1 !I2.001 Notary registration number: '7(0 33(o all . �''��0S2,1 o w e•p ,,,,,,ili;u.? , ao� Po g C o do' :•MY.p1::::. SSION z EXPIRES ••• 08!'3112019:.•\� ',,, •✓E4LTH `,.. ,,,,,, 11111110,,,E WINTERGREEN FARM PHASE III, LLC, a Virginia limited liability company By:River Bend Management, Inc.,a Virginia corporation, itss Manager By: Name: Tc L-, Its: &Lc,•71-4.1—__ 8 'Z-we COMMONWEALTH OF VIRGINIA COUNTY OF C j p- A-ke_S'V11\e , to-wit: The foregoing instrument was ac owledged bfore e this 2(0da of OC_,tU r , 2016,by Gtr.. \o r (gyp i�'t,� d►kic of River Bend Management, Inc., a Virginia corporation, as Manager of Wintergreen Farm Phase III, a Virginia limited liability company, on its behalf. Notary Public My commission expires: 3( (2J\C Notary registration number: -) to 33toatA . ^��1owe 4f"fr, • � NOTA C . PUBI p"s REG.#7633624 '_ SAY COMr.4VSSICr� Z__ O831t201° QJ C• w`V.c...* _loC" TMPs:07600-00-00-049B0;07600-00-00-049C0 This document prepared by and to be returned to: Collison F.Royer(VSB 65893) Royer Caramanis&McDonough,PLC 200-C Garrett Street Charlottesville,Virginia 22902 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF FORESTED/OPEN SPACE THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF FORESTED/OPEN SPACE (the "Declaration") is made this Z(a day of b(,1.ob.0- , 2016, by and among WINTERGREEN FARM PHASE II, LLC, a Virginia limited liability company ("WFPII"); WINTERGREEN FARM PHASE III, LLC, a Virginia limited liability company ("WFPIII", and, for the purposes of this Declaration, sometimes referred to together with WFPII as "Declarant"); JOHN A. NERE, Trustee ("Nere"); UNION SERVICE CORPORATION, a Virginia corporation, Trustee (together with Nere, the "Trustee", either of whom may act); and UNION BANK& TRUST, a Virginia banking corporation as successor in interest to Union First Market Bank("Beneficiary"). WITNESSETH : WHEREAS, as evidenced by that certain special warranty deed from Wintergreen Farm, LLC, a Virginia limited liability company("Wintergreen"), dated April 26, 2016, and recorded in the Clerk's Office (the "Clerk's Office") of the Circuit Court of Albemarle County, Virginia (the "County"), on May 16, 2016, in Deed Book 4757, page 145, WFPII is the fee simple owner of County Tax Map Parcel Number 07600-00-00-049B0, consisting of 20.886 acres, more or less (the "Phase II Parcel"). WHEREAS, as evidenced by that certain special warranty deed from Wintergreen dated April 26, 2016, and recorded in the Clerk's Office on May 16, 2016, in Deed Book 4757, page 150, WFPIII is the fee simple owner of County Tax Map Parcel Number 07600-00-00-051 CO, consisting of 20.732 acres, more or less (the "Phase III Parcel"). WHEREAS, as evidenced by that certain special warranty deed from Wintergreen dated April 11, 2016, and recorded in the Clerk's Office on April 12, 2016, in Deed Book 4744, page 630, SM Charlottesville, LLC, a Virginia limited liability company ("SM Charlottesville"), is the fee simple owner of County Tax Map Parcel Number 07600-00-00-049CO3 consisting of 35.326 acres, more or less (the "Phase I Parcel", and, together with the Phase II Parcel and the Phase III Parcel, the "Parcels"). WHEREAS, SM Charlottesville intends to acquire the Phase II Parcel and the Phase III Parcel and develop the Parcels in phases into a residential neighborhood consisting of approximately eighty-five detached (85) single family lots (the "Project"), and, in connection therewith, and in compliance with various governmental approvals, the County requires that various portions of Parcel II and Parcel III be dedicated as hereinafter set forth. + r WHEREAS, in connection with their approval of the Project and the approval of Virginia Stormwater Management Plan ("VSMP") permits for development of the Project in connection therewith (including, but not limited to, regulated land disturbing activities, stormwater quality requirements, and site based pollutant load limits), the County and the Virginia Department of Environmental Quality(including the County as a VSMP authority)(the"DEQ")required that SM Charlottesville and Declarant provide certain binding assurances with respect to the Parcels. WHEREAS, Declarant intends that the restrictions on set forth herein shall comply with the various County and DEQ site-based requirements for the subdivision of the Original Parcel with respect to hydrologic benefit, runoff reduction and pollution removal. WHEREAS, as evidenced by that certain Deed of Trust dated December 22, 2014, in the original principal balance of $2,960,000.00 granted by Declarant to Trustee for the benefit of Beneficiary and recorded on December 22, 2014, in the Clerk's Office in Deed Book 4568, page 566, and, as amended and modified from time to time, as further set forth by that certain Deed of Trust Modification Agreement dated June 29, 2016, recorded in the Clerk's Office on June 20, 2016,in Deed Book 4781,page 64, corrected by that certain corrected Deed of Trust Modification Agreement recorded in the Clerk's Office on August 16, 2016, in Deed Book 4802,page 145 (all together, the "Deed of Trust"), Declarant granted its interest in the Phase II Parcel and the Phase III Parcel as collateral. WHEREAS, Declarant wishes to subject portions of the Phase II Parcel and the Phase III Parcel to various covenants and restrictions in connection with the VSMP, and Trustee and Beneficiary intend to join herein to evidence their consent. NOW THEREFORE, in consideration of the foregoing recitals incorporated herein and made a part hereof, WFPII declares that the portion of the Phase II Parcel more particularly described on Schedule "A", attached hereto and made a part hereof by this reference (the "Phase II Conservation Easement") 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.WFPIII declares that the portion of the Phase III Parcel more particularly described on Schedule "B", attached hereto and made a part hereof by this reference (the "Phase III Conservation Easement", and, together with the Phase II Conservation Easement, the"Property") 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 The Property shall continue to subsist in a natural,vegetated state and shall not be disturbed or graded other than as set forth herein. Accordingly,restrictions are hereby imposed on the use of the Property 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 the following: a) Forestry management; b) small-scale incidental commercial or industrial operations compatible with activities set forth in (a) above; and c) activities to restore or enhance wetlands or streams or restore,enhance,or develop other ecosystem functions on the Property 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 Property remains in a natural, vegetated state, educational, scientific, religious,or passive recreational activities are permitted on the Property,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 Property 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 Property, provided, however, that the Property may be subjected to various easements for subsurface utilities(public or private)serving the remainder of the Project or other adjacent parcels, all as may be deemed commercially reasonable by Declarant or the County, provided, however, that after installation, maintenance or removal of such utilities, any disturbed soil shall be immediately restored to its original condition and the Property shall be returned to a natural vegetated state. 4. Accumulation or dumping of trash, refuse,junk or toxic materials is not permitted on the Property. 5. No billboards or other signs may be displayed on the Property, except for signs that relate to the Property 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 Property 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 New 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 BENEFICIARY'S CONSENT Beneficiary and Trustee join herein to evidence their consent to this Declaration provided, however neither Beneficiary nor Trustee makes any 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 neither Beneficiary nor Trustee assumes or shall be responsible for any of the obligations or liability of Declarant, its successors or assigns, as contained in this Declaration. SECTION FOUR 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 Property 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 Property 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 Property 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 Property to the general public. `fir►' .•Ne SECTION FIVE GENERAL PROVISIONS 1. Effect. Notwithstanding the date and time of recordation in the Clerk's Office, this Declaration shall not be effective until Project construction is complete, the County has approved as built plans for the Project, and the County has released all bonds and/or letters of credit relating to the Project. 2. 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. 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 Property. Subject to the terms hereof and any other covenants, restrictions or conditions which affect the Property, 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 Property. 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 Property's conservation values or add to the restricted property by an amended declaration,provided that no amendment shall(i)affect this Declaration's perpetual duration,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: WINTERGREEN FARM PHASE II, LLC, a Virginia limited liability company By:River Bend Management,Inc.,a Virginia corporation, its Manager By: Name: 4.. . -( Its: Ala. COMMONWEALTH O VIRGINIA CITY/COUNTY OF lke_ , to-wit: The foregoing instrument was acknowledged before me this (At day of [ 1At' , 2016, by f A --k7...�\U C �,t, v on'uo 4icy of River Bend Management, Inc., a Virginia corporation, as Manager of Wintergreen Farm Phase II, a Virginia limited liability company • its behalf 41111, Notary Public /'3 My commission expires: ' /2019 a``pW, Notary registration number: 'U0 33 La)- . (:>' N0TAR si PUBS G � - 4 G.#763362 : i g tRY CGM s10N z o EXPIR .- C� OHO 0613A 120 J� �% /V EALV'' WINTERGREEN FARM PHASE III, LLC, a Virginia limited liability company By:River Bend Management,Inc.,a Virginia corporation&L471L— Name. Manager By: A'( Vl . T T (sKe- Its: ' .r,` 1J— Fe-#Z.•a.r COMMONWEALTHF VIRGINIA,1 __ CITY/COUNTY OF 4-c2NA`k‹._ , to-wit: � nn The foregoing instrument was acknowledged before me this j day of Q(xDlaer- , 2016, by (�tr�"T-0 (0 r , „iciA(/lQ ci-tert&licked of River Bend Management, Inc., a Virginia corporation, as Manager of Wintergreen Farm Phase III, a Virginia limited liability company, on its behalf. a&c...._.- d(...... .\,.... Notary Public My commission expires: I�l�J( 7(.A01 `` �lowe '�,, Notary registration number: '1 3• (0 a1-k �� Mac., °c NOTA2 °�', a f PUBUC c = u 4 REG.#7633624 : ..... n imy COMMISSION Z c EXPIRES . •• 08/31/2019 . .'' �11/EALTN pF UNION SERVICE CORPORATION, a Virginia corporationcorporation By: � itx-,/ r% :c�cs�-cam Name: 7)ra1,7,aJ Its: e ts,Gbr-9L COMMONWEALTH OF VIRGINIA CITY/COUNTY OF 09 lam k , to-wit: The foregoing instrument was acknowledged before me this ag day of 0 04-b ,2016, by 1 ' 9-nA- o'ce_ Pre s i`d1,e n--fr of Union Service Corporation, a Virginia banking corporation, on its behalf. .:� i#V ' o* Public My commission expires: G-3 k, Notary registration number: 3 `1/ 51 CYNTHIA 8 MARTIN Notary Public Commonwealth of Virginia 391258 My Commission Expires Dec 31, 201 UNION BANK & TRUST, a Virginia banking corporation B - =-- . /1F Name: r4J . Air Its: sQ_ (/. {?. COMMONWEALTH OF VIRGINIA CITY/COUNTY OF /'�( r wv le , to-wit: The foregoing instrument was acknowled ed before me this o'b day of Oc4D6€r 2016, by 2),Avi` , 4.1/4, k3 `3rF P. of Union Bank & Trust, a Virginia banking corporation, on its behalf. . ,%.�. / 1 o , Public My commission expires: 0-31—Do I-7 . Notary registration number: 3(4)(3,5-8- 31,,,20,17 u 1�l S� CYNTHIA 8 MARTIN Notary Pubiic Commonwealth of Virginia 391258 MY Commission Expires Dec 31, 2017 F ..rr SCHEDULE "A" All that certain tract or parcel of land shown and designated as"NEW VARIABLE WIDTH WPO #201500098 RESTRICTIVE CONSERVATION AREA EASEMENT" on Sheet 2 of 5 of that certain easement plat prepared by Roudabush, Gale & Associates, Inc., Engineers Surveyors and Land Planners, dated August 2, 2016, last revised Amoy 41.• 12 , 2016, and entitled "Easement Plat TMP 07600-00-00-049B0 TMP 07600-00-00-051C0 WINTERGREEN FARM SAMUEL MILLER DISTRICT ALBEMARLE COUNTY, VIRGINIA" attached hereto and incorporated herein by this reference. Now' *awl SCHEDULE "B" All that certain tract or parcel of land shown and designated as"NEW VARIABLE WIDTH WPO #201500098 RESTRICTIVE CONSERVATION AREA EASEMENT" on Sheet 4 of 5 of that certain easement plat prepared by Roudabush, Gale & Associates, Inc., Engineers Surveyors and Land Planners, dated August 2, 2016, last revised .4*IA- 12_ , 2016, and entitled "Easement Plat TMP 07600-00-00-049B0 TMP 07600-00-00-051C0 WINTERGREEN FARM SAMUEL MILLER DISTRICT ALBEMARLE COUNTY, VIRGINIA" attached hereto and incorporated herein by this reference.