DEED OF GIFT AND CONSERVATION EASEMENT

Transcription

1 This document was prepared by: George W. Barlow, III, Division Attorney VSB #29008 The Nature Conservancy 490 Westfield Road Charlottesville, Virginia Tax Map Parcel: 75-2C, 2C1, 2D, 11, 46, 47, 64 Title Insurer: DEED OF GIFT AND CONSERVATION EASEMENT This DEED OF GIFT AND CONSERVATION EASEMENT, exempt from all recordation taxes pursuant to Virginia Code (A)(3), (D) and (F), and from the payment of Clerk s fee pursuant to Virginia Code , is made on this day of February, 2015, by and between THE NATURE CONSERVANCY, a District of Columbia non-profit corporation, ( Conservancy ), index as grantor and grantee, and the COUNTY OF ALBEMARLE, VIRGINIA, a political subdivision of the Commonwealth of Virginia, with an address of 401 McIntire Road, Charlottesville, Virginia ( Grantee ), index as grantor and grantee. W I T N E S S E T H: Conservancy owns all those certain tracts or parcels of land, together with the improvements thereon and all rights, privileges, appurtenances, easements and rights of way thereunto belonging or in anywise appertaining, situate in the Samuel Miller Magisterial District of Albemarle County, Virginia, more particularly described on Exhibit A attached hereto and incorporated herein by reference (the Property ). The Property is a natural habitat of fish, wildlife, plants and ecological communities. The specific conservation values of the Property are set forth in a Conservation Easement Baseline Documentation Report (the Baseline Report ) of even date herewith, prepared by the Conservancy and signed and acknowledged by the Grantee. Conservancy and Grantee have the common desire and purpose to protect the conservation values of the Property described in the Baseline Report and wish to create a conservation easement in favor of Conservancy. The Commonwealth of Virginia has authorized the creation of conservation easements pursuant to the Virginia Conservation Easement Act, Virginia Code et seq. (the Act ), and the Conservancy and Grantee wish to avail themselves of the provisions of the Act. The conservation values of the Property are further described below: A. Conservancy and Grantee have the common purpose of conserving in perpetuity the Property s conservation values as natural habitat in the public interest.

2 B. As required under (E) of the Act, the use of the Property for open space land conforms to the County of Albemarle Comprehensive Plan (the Comprehensive Plan ), as more particularly set forth in this Paragraph. The Open Space Resources section of the Comprehensive Plan identifies as its primary goal the protection of the County s natural, scenic, and historic resources in the Rural Area and Development Areas (p. 7). The Rural Areas Plan of the Albemarle County Comprehensive Plan adopted on March 2, 2005, states in its Introduction that: Agricultural and forestal resources have been identified as the most critical County resources and the desired primary land use in the Rural Areas. Such uses play an important and long-standing role in the environment, heritage, and economy of the County. Loss of these resources to development is irreversible and irreplaceable. Stewardship of these resources also provides an opportunity to conserve and efficiently use other resources such as: (1) water resources (with use of property conservation techniques); (2) natural, scenic, and historic resources with the maintenance of pasture land, farmland, and forested areas; and (3) fiscal resources by limiting development and lessening the need to provide public services to wide areas of the County ; and The Rural Areas Plan in its section titled Guiding Principles for the Rural Areas states the following defining principles : i) Agriculture - Protect Albemarle County s agricultural lands as a resource base for its agricultural industries and for related benefits they contribute towards the County s rural character, scenic quality, natural environment, and fiscal health. ii) Forestry resources - Protect Albemarle County s forests as a resource base for its forestry industries and watershed protection. iii) Land Preservation - Permanently preserve and protect Albemarle County s rural land as an essential and finite resource through public ownership or through conservation easements. iv) Land Conservation - Protect Albemarle County s rural land through planned management of open spaces to prevent exploitation, destruction, or neglect. v) Water supply resources - Protect the quality and supply of surface water and groundwater resources. vi) Natural resources - Preserve and manage the Rural Areas natural resources in order to protect the environment and conserve resources for future use. vii) Scenic resources - Preserve the County s rural scenic resources as being essential to the County s character, economic vitality, and quality of life. viii) Historical, archeological and cultural resources - Protect the Rural Areas historic, archeological and cultural resources. The Rural Areas Plan further notes in its section titled Land Preservation or Voluntary Land Conservation that: Some landowners are willing to donate easements that protect 2

3 important resources by eliminating development potential. Foundation and other organizations hold such easements. The Virginia Outdoors C. This Conservation Easement protects the Rivanna River and the Chesapeake Bay by, among other things, restricting development, construction, and timbering activities on the Property, thus preventing excessive degradation of aquatic habitat. In particular, this Conservation Easement protects the habitat for aquatic species by (i) prohibiting timbering, thus protecting riparian forest buffers along tributaries to Moore s Creek, which buffers trap sediments, filter run-off, prevent streambank erosion, and generally protect and enhance water quality, and (ii) preventing certain development and uses of the Property, such as the creation of excessive impervious surfaces on the Property, that would increase runoff and pollution and materially impair the habitat for aquatic species in the Rivanna River and the Chesapeake Bay. D. The Property is adjacent to the 980-acre Ragged Mountain Natural Area, a natural area owned by the City of Charlottesville to buffer the Ragged Mountain Reservoir, one of Albemarle County s six surface drinking water impoundments. Ragged Mountain Natural Area is open to the general public for hiking, fishing, and observing wildlife. The Conservation Easement will protect scenic and open-space resources adjacent to Ragged Mountain Natural Area, and will allow for recreational uses of the Property in the form of hiking trails open to the public. E. The Property was conveyed to the Conservancy by deed of gift dated December 29, 2006 of record in the Clerk s Office of the Circuit Court of Albemarle County, Virginia in Deed Book 3346, Page 488 (the Deed of Gift ), for the purpose of substantial and regular use by the general public for outdoor recreation, including but not limited to the intended us of hiking trails, and consistent with that purpose shall be kept in its predominantly natural, forested state to protect habitat and water quality. This conveyance of the Property is subject to the terms of the Deed of Gift, including the reservation of a qualified mineral interest therein. F. The characteristics and condition of the Property as of the date of this Conservation Easement, the Property s current uses, and the current state of improvements on the Property are described in the Report. Grantor and Conservancy hereby acknowledge that the Report is a complete and accurate representation of the Property as of the date of this Conservation Easement. The Report will be used by Conservancy and Grantee to assure that any future changes in the use of the Property will be consistent with the terms of this Conservation Easement. However, the Report is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a controversy over its use. NOW, THEREFORE, Conservancy does hereby grant and convey unto Grantee the Property with special warranty of title, subject to easements, restrictions and reservations of record, including without limitation the hereinafter described conservation easement (the Conservation Easement ) reserved and retained in perpetuity by Conservancy. 3

4 FURTHERMORE, for and in consideration of the foregoing recitals incorporated herein and made a part hereof and in consideration of the mutual covenants herein and their acceptance by Conservancy, Grantee does hereby grant and convey to Conservancy the Conservation Easement in gross over, and the right in perpetuity to restrict the use of, the Property of the nature and character as follows: 1. PURPOSE. The purpose of this Conservation Easement is to ensure that the Property will be retained forever predominantly in its natural and scenic condition; for substantial and regular use by the general public for outdoor recreation; to protect native plants, animals, or plant communities on the Property; to allow the general public access to hiking trails; to prevent any use of the Property that will significantly impair or interfere with the conservation values of the Property described above, while allowing for traditional uses on the Property that are compatible with and not destructive of the conservation values of the Property, such as trail maintenance, trail construction, and hiking. The Grantee may not transfer or convey the Property to any other party unless the Grantee conditions such transfer or conveyance on the requirements that (a) all restrictions and conservation purposes set forth in the Deed of Gift are to be continued in perpetuity, and (b) the transferee is an organization then qualifying as an eligible donee as defined by 170(h)(3) of the Internal Revenue Code of 1986 as amended, and the applicable Treasury Regulations promulgated thereunder (the IRC ). Grantee will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantee to take any action to restore the condition of the Property after any act of God or other event over which Grantee had no control. Grantee understands that nothing in this Conservation Easement relieves it of any obligation or restriction on the use of the Property imposed by law. 2. PROPERTY USES. Any activity on or use of the Property inconsistent with the terms and purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Additional rights of Grantee are set forth in Paragraph 3 below. 2.1 Subdivision. The Property may not be divided, subdivided or partitioned, nor conveyed or pledged for a debt except in its current configuration as an entity. 2.2 Recreational Uses. Grantee shall have the right to engage in and permit others to engage in recreational uses of the Property (such as hiking, biking, and horseback riding) that require no surface alteration or other development of the land other than minor grading for trail construction. All such recreational uses shall be conducted in a manner that does not degrade water quality in the streams on the Property. If such uses are found by the Conservancy to degrade water quality, such use may be prohibited until measures are implemented, as approved by the Conservancy, to alleviate such degradation to water 4

5 quality. Recreational uses involving motorized transportation are prohibited. Motorized transportation shall be allowed: (a) in designated parking areas, (b) for emergency or maintenance purposes, and (c) as required for compliance with applicable state and federal laws. 2.3 Improvements. There shall be no construction of buildings used for commercial or residential purposes. With written notice to the Conservancy as set forth below, Grantee shall have the right to construct the following improvements that are associated with permitted recreational uses described in Paragraph 2.2: (a) entrance road, associated stream crossing, parking lot and trailhead facility, provided that such improvements are constructed in accordance with local, state and federal laws. All routes of travel, stream crossings, walkways, and footbridges beyond the trailhead and within the Property shall be no more than fifteen (15) feet in width. The total square footage of paved surfaces shall not exceed forty-seven thousand (47,000) square feet. (b) public buildings (such as a building for environmental education purposes), sheds, accessory buildings, and lavatory facilities to provide needed services for the permitted uses. Such public buildings, sheds, accessory buildings, and lavatory facilities may not be used as dwelling units. The total square footage of impermeable surfaces created by all public buildings, sheds, accessory buildings, and lavatory facilities is not to exceed ten thousand (10,000) square feet. (c) Conservancy s Consent. Prior to beginning construction of allowed improvements Grantee shall submit site plans to the Conservancy for its review. The plans shall be sufficiently detailed to allow the Conservancy to fully evaluate the construction s conformance to this Conservation Easement. No construction of the improvements may take place until the Conservancy reviews and approves the plans. The plans will be deemed approved unless the Conservancy objects in writing, within thirty (30) days of receipt of complete plans, setting forth with specificity the Conservancy s grounds for objections. Conservancy agrees that if the new construction is consistent with the terms and provisions of this Conservation Easement, Conservancy s approval shall not be unreasonably withheld. (d) Prohibition of Other Construction. No other structures or improvements may be placed or constructed on the Property except as expressly permitted by this Conservation Easement. Furthermore, there shall be no constructing or placing of any airplane landing strip on the Property. (e) Utilities. Grantee may construct or install utility lines, poles, pipelines and conduits necessary to serve the Property s improvements. Unless such utilities are placed on or over the Property under eminent domain proceedings or the threat thereof, Grantor may not consent to the construction or placement of utilities on the Property that serve entities and/or users located off the Property (a communications tower or wind turbine for 5

6 example) without the prior written consent of the Grantee. Such consent shall only be granted if their construction or placement would not deleteriously impact the conservation values of the Property or would produce a smaller impact than if those utilities were located on an adjoining or nearby property. 2.4 Existing Improvements. Grantee shall have the right to maintain, remodel, and repair existing structures, water tanks, fences, water wells, dams, lakes, ponds, utilities, and other improvements, and in the event of their destruction, to reconstruct any such existing improvement with another of similar size, function, capacity, location and material. 2.5 Mineral Extraction. Extraction of subsurface minerals, oil or gas is prohibited. 2.6 Excavation. Except as necessary to accommodate the activities expressly permitted under this Conservation Easement, there shall be no ditching, draining, diking, filling, excavating, dredging, removal of topsoil, sand, gravel, rock, minerals or other materials, drilling, building of roads, change in the topography of the Property or disturbance in the soil in any manner. 2.7 Destruction of Plants, Disturbance of Natural Habitat. Grantee shall have the right to cut and remove diseased or exotic trees, shrubs, or plants, to salvage diseased or damaged trees in the case of a catastrophic event such as a wildfire or cyclonic storm, and to cut firebreaks. Grantee shall also have the right to cut and remove trees, shrubs or plants to accommodate the activities expressly permitted under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or plants. Unless approved in advance by Conservancy, there shall be no planting of non-native trees, shrubs or plants on the Property. Furthermore, except to accommodate the activities expressly permitted under this Conservation Easement, there shall be no use of fertilizers, plowing, introduction of non-native animals, or disturbance or change in the natural habitat in any manner. 2.8 Hydrology. Except as necessary to accommodate the activities expressly permitted under this Conservation Easement, there shall be no alteration, depletion or extraction of surface water, natural water courses, lakes, ponds, marshes, drainages, subsurface water or any other water bodies on the Property. Creation of new surface water, such as ponds, is prohibited. Development of existing springs into watering sites for horses shall be permitted, provided that the trough, springbox or other basin is constructed in a manner that prevents horses from accessing or standing in the spring, stream or other water source. 2.9 Signage. No signs or billboards or other advertising displays are allowed on the Property, except that signs whose placement, number and design do not significantly diminish the scenic character of the Property may be displayed to state the name and address of the Property, to advertise or regulate permitted on-site activities, to advertise the Property for sale or rent, and to post the Property to control unauthorized entry or use. Kiosk(s) 6

7 displaying trail maps and other information relevant to the public use of the Property are permitted No Biocides. Except to aid in removal of invasive plants and exotic species, there shall be no use on the Property of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides No Dumping. Except for trash receptacles consistent with the operation of a public park, there shall be no storage or dumping of trash, garbage, or other unsightly or offensive material, hazardous substance, or toxic waste on the Property. Except as needed to service permitted improvements, there shall be no placement of underground storage tanks in, on, or under the Property. There shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Property or on the adjacent property owned by Grantee, that could cause erosion or siltation on the Property No Pollution. There shall be no pollution, of surface water, natural water courses, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Property that would be detrimental to water quality or purity or that could alter the natural water level or flow in or over the Property Commercial Development. Any commercial or industrial use of or activity on the Property, other than those specifically permitted herein, is prohibited Archeological Investigation. Subject to Paragraph 2.8 (Hydrology), Grantee may conduct archeological research on the Property provided that: (1) Grantee has obtained Conservancy s prior written approval; (2) Grantee gives prior notice and obtains necessary approval from the appropriate state or federal agencies; and (3) any such disturbance and investigation is performed in such a manner as to minimize any adverse impact on the conservation values of the Property Density. Neither the Property nor any portion of it shall be included as part of the gross area of other property not subject to this Conservation Easement for the purposes of determining density, lot coverage, or open space requirements under otherwise applicable laws, regulations or ordinances controlling land use and building density. No development rights that have been encumbered or extinguished by this Conservation Easement shall be transferred to any other lands pursuant to a transferable development rights scheme, cluster development arrangement or otherwise. 3. ADDITIONAL RIGHTS OF GRANTEE. Grantee shall have the following additional rights: 3.1 Existing Uses. The right to undertake or continue any activity or use of the Property not inconsistent with the terms and purposes of this Conservation Easement. Prior to making any change in use of the Property, Grantee shall notify Conservancy in writing to allow 7

8 Conservancy a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. 3.2 Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Property subject to the terms of this Conservation Easement. 4. CONSERVANCY S RIGHTS. To accomplish the purpose of this Conservation Easement, the following additional rights are reserved by the Conservancy: 4.1 Right to Enforce. The right to preserve and protect the conservation values of the Property and enforce the terms of this Conservation Easement, including the right to prevent any activity on or use of the Property that is inconsistent with the purpose of this Conservation Easement and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent activity or use pursuant to Paragraph 7 herein. 4.2 Right of Entry. The right of Conservancy s staff, contractors and associated natural resource management professionals to enter the Property after prior written notice to Grantee, for the purposes of: (a) inspecting the Property to determine if Grantee is complying with the covenants and purposes of this Conservation Easement; (b) enforcing the terms of this Conservation Easement; (c) taking any and all actions with respect to the Property as may be necessary or appropriate, with or without an order of court, to remedy or abate violations hereof; (d) monitoring and research as described below; and (e) management of exotic and invasive species as described below. Prior written notice is not required if Conservancy is entering upon the Property because of an ongoing or imminent violation that could, in the sole discretion of Conservancy, substantially diminish or impair the conservation values of the Property, as described in Paragraph 7 herein. Such right of entry shall include the permanent right to cross other lands of the Grantee for access to the Property. 4.3 Monitoring and Research. The right, but not the obligation, to monitor the plant and wildlife populations, plant communities and natural habitats on the Property, and to actively protect and manage them, if necessary, to ensure their continued presence and viability on the Property. Grantee shall cooperate with Conservancy in establishing, at no expense to Grantee, a written Monitoring and Research Plan to direct the monitoring of and research on plant and wildlife populations, plant communities and natural habitats on the Property. Grantee agrees that all monitoring activity, natural resource inventory and assessment work or other natural resource research, conducted by Grantee or others, shall be reported to Conservancy. 4.4 Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Property. Conservancy will consult with Grantee prior to implementing management activities. 8

9 4.5 Discretionary Consent. The Conservancy s consent for activities otherwise prohibited or requiring Conservancy s consent under Paragraph 2 above, may be given under the following conditions and circumstances: If, owing to unforeseen or changed circumstances, any of the prohibited activities listed in Paragraph 2 are deemed desirable by both the Grantee and Conservancy, the Conservancy may, in its sole discretion, give permission for such activities, subject to the limitations herein. Such requests for permission, and requests for permission for activities requiring the Conservancy s consent, shall be in writing and shall describe the proposed activity in sufficient detail to allow the Conservancy to judge the consistency of the proposed activity with the purpose of this Conservation Easement. The Conservancy may give its permission only if it determines, in its sole discretion, that such activities (1) do not violate the purposes of this Conservation Easement AND (2) either enhance or do not impair any significant conservation interests associated with the Property. Notwithstanding the foregoing, the Conservancy and Grantee have no right or power to agree to any activities that would result in the termination of this Conservation Easement under state or federal law. Nothing in this section shall require Conservancy to consent to any activity otherwise restricted in this Conservation Easement, or to consult or negotiate regarding the withholding or provision of such consent. 5. RESPONSIBILITIES OF GRANTEE AND CONSERVANCY NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantee, or in any way to affect any obligation of the Grantee as owner of the Property. Grantee retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of the Property. Among other things, this shall apply to: (a) Taxes. The Grantee is exempt from real estate taxes and assessment. If the Property is conveyed to an owner that is not so exempt, such owner shall be solely responsible for payment of all taxes and assessments, if any, levied against the Property. If an owner of the Property becomes delinquent in payment of said taxes or assessments, such that a lien created against the land is to be executed upon, the Conservancy, at its option, shall have the right, but not the obligation, to take such actions as may be necessary to protect the Conservancy s interest in the Property and to assure the continued enforceability of this Conservation Easement. (b) Upkeep and Maintenance. The Grantee shall be solely responsible for the upkeep and maintenance of the Property, to the extent it may be required by law. The Conservancy shall have no obligation for the upkeep or maintenance of the Property. Grantee shall keep the Conservancy s interest in the Property free of any liens arising out of any work performed for, materials furnished to or obligations incurred by Grantee. 6. ACCESS. Nothing in this Paragraph prevents the Grantee from placing reasonable restrictions on access for the safety of the public or for the maintenance of the Property. 7. ENFORCEMENT. The Conservancy shall have the right to prevent and correct violations of the terms of this Conservation Easement; to request corrective action sufficient to 9

10 abate any violations; and to restore the Property to its previous condition as of the date that this Conservation Easement is retained. Grantee agrees that the Baseline Report (also known as an Easement Documentation Report) shall be deemed to provide objective information concerning the Property's condition at the time of this grant. Failure by the Grantee to abate the violation and take such other corrective action as may be requested by the Conservancy within thirty (30) days after receipt of such notice (the cure period ) shall entitle the Conservancy to bring an action at law or equity in a court of competent jurisdiction to enforce the terms of this Conservation Easement; to require the restoration of the Property to its previous condition; to enjoin the non-compliance by ex parte temporary or permanent injunction in a court of competent jurisdiction; and/or to recover any damages arising from the noncompliance. Such damages, when recovered, may be applied by the Conservancy, in its sole discretion, to corrective action on the Property. 7.1 Emergency Enforcement. If the Conservancy, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conservation values of the Property, the Conservancy may pursue its remedies under this Paragraph without prior notice to the Grantee or without waiting for the cure period to expire. 7.2 Failure to Act or Delay. The Conservancy does not waive or forfeit the right to take action as may be necessary to insure compliance with this Conservation Easement by any prior failure to act and the Grantee hereby waives any defenses of waiver, estoppel or laches with respect to any failure to act or delay by the Conservancy, its successors or assigns, in acting to enforce any restriction or exercise any rights under this Conservation Easement. 7.3 Violations Due to Causes Beyond Grantee s Control. Nothing herein shall be construed to entitle the Conservancy to institute any enforcement proceedings against the Grantee for any changes to the Property due to causes beyond the Grantee s control, such as changes caused by fire, flood, storm, earthquake or the unauthorized wrongful acts of third persons. In the event of violations of this Conservation Easement caused by the unauthorized wrongful acts of third persons, the Grantee consents to the voluntary joinder by the Conservancy into any suit for the purpose of pursuing enforcement action, all at the election of the Conservancy. 7.4 Standing. By virtue of Conservancy's retention of rights under this Conservation Easement, it shall be entitled, at its option, to standing before appropriate courts of law to pursue remedies or other matters which are necessary or incidental to the protection of the Property which is subject to this Conservation Easement. 8. TRANSFER OF EASEMENT. The parties recognize and agree that the benefits of this Conservation Easement are in gross and assignable in whole but not in part. The Conservancy shall have the right to transfer or assign this Conservation Easement to any private nonprofit organization that, at the time of transfer, is a qualified organization under IRC 170(h), and the organization expressly agrees to assume the responsibility imposed on the Conservancy by this Conservation Easement. If the Conservancy ever ceases to exist or no longer qualifies under IRC 170(h) or applicable state law, a court with jurisdiction shall transfer this Conservation 10

11 Easement to another qualified organization having similar purposes that agrees to assume the responsibility. 9. TRANSFER OF PROPERTY. Any time the Property, or any interest therein, is transferred by the Grantee to any third party, the Grantee shall notify the Conservancy in writing within thirty (30) days prior to the transfer of the Property, and the document of conveyance shall expressly refer to this Conservation Easement. The failure of Grantee to perform any act required by this Paragraph shall not impair the validity of this Easement or of the transfer or limit their enforceability in any way. 10. AMENDMENT OF EASEMENT. This Conservation Easement may be amended only with the written consent of Grantee and Conservancy. Any such amendment shall be consistent with the purposes of this Conservation Easement and shall comply with IRC 170(h), or any regulations promulgated in accordance with that Section. Any such amendment shall also be consistent with the Act, as amended, or any regulations promulgated pursuant to that law. The Grantee and Conservancy have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. TERMINATION OF EASEMENT. The Grantee hereby agrees that at the time of the conveyance of this Conservation Easement to the Conservancy, this Conservation Easement gives rise to a real property right, immediately vested in the Conservancy, with a fair market value of the Conservation Easement as of the date of the conveyance that is at least equal to the proportionate value that this Conservation Easement at the time of the conveyance bears to the fair market value of the Property as a whole at that time. That proportionate value of the Conservancy s property rights shall remain constant. When a change in conditions takes place which makes impossible or impractical any continued protection of the Property for conservation purposes, and the restrictions contained herein are extinguished by judicial proceeding, the Conservancy, upon a subsequent sale, exchange or involuntary conversion of the Property, shall be entitled to a portion of the proceeds at least equal to that proportionate value of the Conservation Easement (minus any amount attributable to new improvements allowed under this Conservation Easement made as of the date of the sale, exchange or conversion, which amount shall be reserved to Grantee). The Conservancy shall use its share of the proceeds in a manner consistent with the conservation purposes set forth herein or for the protection of a relatively natural habitat of fish, wildlife, or plants or similar ecosystem, as that phrase is used in and defined under P.L , 26 USC 170(h)(4)(A)(ii), as amended and in regulations promulgated thereunder. 12. EMINENT DOMAIN. Whenever all or part of the Property is taken in exercise of eminent domain by public, corporate, or other authority so as to abrogate the restrictions imposed by this Conservation Easement, the Grantee and the Conservancy shall join in appropriate actions at the time of such taking to recover the full value of the taking and all incidental or direct damages resulting from the taking, which proceeds shall be divided in accordance with the proportionate value of the Conservancy s and Grantee s interests, and Conservancy s proceeds 11

12 shall be used as specified above. All expenses incurred by the Grantee and the Conservancy in such action shall be paid out of the recovered proceeds. 13. INTERPRETATION. This Conservation Easement shall be interpreted under the laws of the Commonwealth of Virginia, resolving any ambiguities and questions of the validity of specific provisions so as to give maximum effect to its conservation purposes. 14. TITLE. The Conservancy covenants and represents that it is the sole owner and is seized of the Property in fee simple and has good right to grant and convey the Property subject to this Conservation Easement. 15. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail or by facsimile, to Grantee and Conservancy, respectively, at the following addresses or fax numbers, unless a party has been notified by the other of a change of address. To Grantee: To the Conservancy: County Attorney Attorney County of Albemarle The Nature Conservancy 401 McIntire Road 490 Westfield Road Charlottesville, VA Charlottesville, VA Fax: Fax: SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. 17. PARTIES. Every provision of this Conservation Easement that applies to the Grantee or Conservancy shall also apply to their respective successors and assigns, as their interest may appear. 18. RE-RECORDING. In order to ensure the perpetual enforceability of the Conservation Easement, the Conservancy is authorized to re-record this instrument or any other appropriate notice or instrument. 19. MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Property. 20. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation Easement shall be construed as impairing the ability of Grantee to use this Property as collateral for subsequent borrowing, provided that any deed of trust, mortgage or lien arising from such a borrowing would be subordinate to this Conservation Easement. 21. ACCEPTANCE & EFFECTIVE DATE. As attested by the signature of its authorized representative affixed hereto, the Conservancy hereby accepts without reservation the rights and 12

13 responsibilities conveyed by this Conservation Easement. This Conservation Easement is to be effective the date recorded in the Clerk s Office of the Circuit Court of Albemarle County, Virginia. RESERVED this Conservation Easement together with all and singular the appurtenances and privileges belonging or in any way pertaining thereto, either in law or in equity, either in possession or expectancy, for the proper use and benefit of The Nature Conservancy, its successors, and assigns forever. TO HAVE AND TO HOLD, the said Conservation Easement unto The Nature Conservancy forever. IN WITNESS WHEREOF, The Nature Conservancy, a District of Columbia non-profit corporation, has caused this instrument to be executed by its duly authorized representative. THE NATURE CONSERVANCY, a District of Columbia non-profit corporation By: Its: COMMONWEALTH OF VIRGINIA CITY/COUNTY OF The foregoing instrument was acknowledged before me this day of, 2015, by, who is of The Nature Conservancy, a District of Columbia non-profit corporation, on behalf of the corporation. My commission expires:. Notary Public Notary Registration No. 13

14 ACCEPTANCE Albemarle County, Virginia, Grantee, hereby executes and seals this document to indicate acceptance of the terms contained herein on this day of, COUNTY OF ALBEMARLE, VIRGINIA a political subdivision of the Commonwealth of Virginia By: Thomas C. Foley County Executive COMMONWEALTH OF VIRGINIA CITY/COUNTY OF, to-wit: The foregoing instrument was acknowledged before me this day of, 2015, by Thomas C. Foley, who is County Executive of the County of Albemarle, Virginia, a political subdivision of the Commonwealth of Virginia, on behalf of the County. My commission expires:. Notary Public Notary Registration No. 14

15 EXHIBIT A Real Estate Description All those certain tracts or parcels of land, together with the improvements thereon and all rights, privileges, appurtenances, easements and rights of way thereunto belonging or in anywise appertaining (except as specifically described below), situate in the Samuel Miller Magisterial District of Albemarle County, Virginia, and more particularly described as follows: Parcel One: All that certain tract or parcel of land containing acres, more or less, designated as Tract B on the plat entitled Plat Showing Rural Subdivision of Tax Map 75 Parcel 2 into Tracts A and B Containing and Acres Respectively and Also Showing Boundary Surveys of Tax Map 74 Parcels 28B1 and 30 Containing 3.79 and 3.13 Acres Respectively dated June 19, 2006 and recorded in the Clerk s Office of the Circuit Court of Albemarle County, Virginia (the Clerk s Office ) in Deed Book 3291, Page 662. Parcel One is Tax Parcel 75-2D. Together with that certain that certain easement of right of way fifty (50) feet in width retained in the deed dated April 7, 1964 from Charles W. Hurt and Letitia H. Hurt, his wife, to Thomas C. Joseph and Frances R. Joseph, husband and wife, of record in the Clerk s Office in Deed Book 398, Page 451, as modified by agreement of record in Deed Book 500, Page 156, and which easement of right of way is located pursuant to the Statement of Road Location and plat thereof of record in Deed Book 703, Page 521. Parcel Two: All that certain tract or parcel of land containing 29.2 acres, more or less, being a portion of that certain parcel containing 268 acres, more or less, conveyed to Hedgerow Corporation, a Virginia corporation, by deed of exchange dated November 3, 1970 from Charles William Hurt, sometimes known as Charles Wm. Hurt, and Letitia H. Hurt, his wife, of record in the Clerk s Office in Deed Book 479, Page 326, and being comprised of a 21.6 acre tract and a 7.6 acre tract conveyed to J. E. Sprouse by deed dated March 21, 1925 from A. P. Walker and C. R. Yardley, Special Commissioners, of record in the Clerks Office in Deed Book 189, Page 316. Parcel Two is Tax Parcel 75-2C and 2C1. Parcel Three: All that certain tract or parcel of land containing acres, more or less, and being the remaining portion of a 134 acre tract as shown on a plat of survey of record in the Clerk s Office in Deed Book 153, Page 183, after deducting therefrom a portion of the acreage conveyed to the Commonwealth of Virginia by deed dated April 30, 1970 from David N. Goodwin and Carol C. Goodwin, husband and wife, of record in the Clerk s Office in Deed Book 471, Page 593. Parcel Three is Tax Parcel Parcel Four: All that certain tract or parcel of land containing 36.5 acres, more or less, and being the same property shown on a plat thereof of record in the Clerk s Office in Deed Book 132, Page 40. Parcel Four is Tax Parcel

16 Parcel Five: All that certain tract or parcel of land containing acres, more or less, situate on the south side of Interstate 64, and being the remaining portion on the south side of such highway of a 189 acre parcel of land as shown on a plat of survey of record in the Clerk s Office in Deed Book 157, Page 455 after deducting therefrom a portion of the acreage conveyed to the Commonwealth of Virginia by deed dated April 30, 1970 from David N. Goodwin and Carol C. Goodwin, husband and wife, of record in the Clerk s Office in Deed Book 471, Page 593. Parcel Five is Tax Parcel Parcel Six: All that certain tract or parcel of land containing acres, more or less, being shown on a plat of survey of record in the Clerk s Office in Deed Book 526, Page 43, and shown on an earlier plat of survey of record in Deed Book 326, Page 374, less and except therefrom that portion of such tract acquired by the Commonwealth of Virginia for improvements to Route 64, as evidenced by certificate of record in the Clerk s Office in Deed Book 430, Page 87 and order of the Circuit Court of Albemarle County of record in Deed Book 523, Page 296. Parcel Six is Tax Parcel The eastern and southern boundaries of Parcel Six are more accurately described on that certain plat made by Draper Aden Associates dated December 21, 2006 and captioned Plat Showing A Boundary Line Declaration, Property of Hedgerow Corporation and recorded in the aforesaid Clerk s Office in Deed Book 3345, Page 55. That certain right of way reserved for the benefit of this Parcel Six in the deed dated November 22, 1897 from J.L. Maury and Lucy J. Mary, husband and wife, to Jane Maury Maverick of record in the Clerk s Office in Deed Book 110, page 326 was released, vacated and extinguished by Hedgerow in that certain Certificate of Plat and Easement Vacation of record in the Clerk s Office in Deed Book 3345, Page 55. Parcels One through Six inclusive comprise the same real property conveyed to The Nature Conservancy, a District of Columbia nonprofit corporation, from Hedgerow Corporation, a Virginia corporation, by deed of gift dated December 29, 2006, of record in the Clerk s Office in Deed Book 3346, Page