Attachment A

DRAFT

Draft: 08/23/04

 

This document was prepared by the Albemarle County Attorney.

 

Tax Map ___, Parcel ___

 

This deed is exempt from taxation under Virginia Code §§ 58.1-811(A)(3) and 58.1-811(C)(4).

 

DEED OF EASEMENT

 

THIS DEED OF EASEMENT is made this ___ day of ____________, 2004 by and between the RIVANNA WATER AND SEWER AUTHORITY, an authority established under Virginia Code § 15.2-5100 et seq., Grantor, and the COUNTY OF ALBEMARLE, VIRGINIA, a political subdivision of the Commonwealth of Virginia, Grantee.

                                                                 WITNESSETH:

            WHEREAS, the Grantor is the owner in fee simple of the real property located in Albemarle County that is described below and hereinafter referred to as the “Property;”

WHEREAS, the Grantor desires to grant and convey to the Grantee, and Grantee is willing to accept, an easement over the Property for the purpose of allowing the Grantee to establish, operate and maintain a public park, including authorized park improvements, subject to the terms and conditions stated in this Deed;

WHEREAS, establishing a park on the Property will allow the Grantee to manage and improve the land within the Easement to enhance the public’s enjoyment and safety in the use of the land, control and minimize conflicts between the Property’s use by the public and its use as a stormwater management facility, and to preserve and to protect the natural resources on the Property;

WHEREAS, establishing a park on the Property as described herein is consistent with Chapter 2, Natural Resources and Cultural Assets, of the Albemarle County Comprehensive Plan and, in particular, its objectives to coordinate stormwater management with other programs, to protect wetlands from inappropriate uses, and to coordinate recreation and water supply planning; and 

WHEREAS, establishing a park on the Property as described herein also is consistent with

Direction 2 (“Protect the County’s natural, scenic and historical resources”) and Direction 3

(“Enhance the quality of life for all Albemarle County citizens”) of the Grantee’s Strategic Plan;

and is likewise consistent with citizen survey results supporting the kind of managed natural area recreation activities described herein.

            NOW, THEREFORE, in consideration of the recitals and the mutual benefits, covenants and terms herein contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Grantor hereby grants, conveys, covenants and agrees as follows:

 

1.  GRANT AND CONVEYANCE OF EASEMENT.  For and in consideration of ONE DOLLAR ($1.00), cash in hand paid, the Grantor hereby grants and conveys to the Grantee and their successors and assigns (hereafter, all references to the Grantee include its successors and assigns), with GENERAL WARRANTY AND ENGLISH COVENANTS OF TITLE, an easement (the “Easement”) in gross over the Property described below, restricting in perpetuity the use of the Property in the manner set forth herein:

That certain easement, shown and designated as “_________________________” on the plat of ____________________, dated __________, last revised ______________, a copy of which is attached hereto and to be recorded with this deed (the “Plat”).  Reference is made to the Plat for a more particular description of the location of the Easement.

 

            The property interest conveyed herein affects only a portion of that certain lot or parcel of land shown on the Plat as __________________, situated in Albemarle County, Virginia, being the same lot or parcel conveyed to the Grantor by deed of record in the office of the Clerk of the Albemarle County Circuit Court at Deed Book___, Page ____.

2.  PURPOSES OF THE EASEMENT The purposes of this Easement are to allow the Grantee to establish a public park within the Easement on the Property comprised of natural area, with improvements described herein, to allow outdoor recreation such as walking, running, biking, bank and pier fishing, the portage of canoes and non-motorized boats, and the observation of nature.  The public park will be established, operated and maintained in a manner that minimizes conflicts between park activities and Lickinghole Basin’s function as a stormwater management facility, and does not increase the Grantor’s costs associated with maintaining the Basin as such a facility. 

3.  ESTABLISHMENT, OPERATION AND MAINTENANCE OF THE PARK.   The Grantee shall have the right to establish, operate and maintain at its expense a public park within the Easement.  The Grantee may establish, operate and maintain, in its sole discretion, the following:

A.     Trails.  A Class A and Class B trail system, as those trails are described on Attachment A.  The trail routes developed for primary general public access will be established as Class A trails.  Secondary access trails will be established as Class B trails.  The trail routes will be planned in the Grantee’s sole discretion, but their locations shall be subject to approval by the Grantor to assure that they do not conflict with Grantor’s maintenance of Lickinghole Basin’s function as a stormwater management facility or Grantor’s obligation to satisfy federal wetlands requirements.  When considering such trail locations, Grantor shall exercise reasonable discretion and its approval shall not be unreasonably withheld.  The trails will be planned to maximize the public’s enjoyment of the natural setting while minimizing impacts to the Lickinghole Basin, wetlands, sensitive vegetation and habitats.  In addition, the Grantee will, to the extent possible, establish Class A trails along existing sewer lines.

 

B.      Access points.  Pedestrian access from public access points.

C.      Trail markers and signs.  Trail markers and signs along the trails, at all points of access, along the trails, and other points of interest within the park to inform the public of the location of the trails, trail features, directions, applicable rules of use, and other markers and signs deemed appropriate by the Grantee.

D.     Other structural improvements.  Improvements shall be related to park uses, such as benches, picnic tables, a fishing pier on Lickinghole Basin, a boardwalk for access to and the protection of wetlands, a wildlife observation deck, restrooms, water fountains, and a canoe and boat locker area.

E.      Vegetation.  Existing vegetation may be managed and new vegetation may be established to maintain a natural setting and to preserve wetlands.  Invasive vegetation may be controlled as deemed appropriate by the Grantee, subject to Grantor approval, which shall not be unreasonably withheld.  

4.  RESTRICTIONS ON USES AND ACTIVITIES IN THE EASEMENT.  The uses and activities within the Easement shall be subject to the following terms and conditions:

A.     Right of Grantee to regulate uses and activities of the public within the Easement. The Grantee shall have the right to regulate and restrict the uses and activities of the public within the Easement as a public park.

B.      Restricted access to the Lickinghole Basin dam.  The Grantee will restrict access from the Easement to the area around the dam at Lickinghole Basin as follows: (1) on the south side of the Basin a fence with signage will be constructed and maintained by the Grantee; the fence shall be constructed within six (6) months after the date of the Grantee’s acceptance of the easement; the Grantee shall not be required to construct the fence as provided herein if the Grantor notifies the Grantee that it has determined that existing natural barriers are sufficient to restrict public access; (2) on the north side of the Basin a fence will be constructed and maintained, but only if the Grantor and the Grantee, after a mutual consultation, determine that existing natural barriers such as the wetland area on a tributary to the Basin fails to adequately restrict access to the area around the dam.  The approximate locations and length of the fences are shown on Attachment B. 

C.      Controlled access through wetlands.  Public access through the wetlands at the western end of Lickinghole Basin shall be controlled by guiding the public on managed trails and/or boardwalks.

D.     [LANGUAGE TO BE ADDED PERTAINING TO THE DAM SAFETY ACT, ETC.]

5.  MISCELLANEOUS PROVISIONS.

               A.     Easement runs with the land.  The Easement shall run with the land and be binding upon the parties, their successors, assigns, personal representatives, and heirs.

 

B.      Restrictions.  The Easement is a non-exclusive easement; however, at all times the public’s use of the improvements shall be subject to the Grantee’s rules of operation.  The Grantor reserves the right to grant easements to public utilities, and reserves for itself, and its employees, agents and independent contractors, the right to enter the Easement to perform required construction, reconstruction and maintenance associated with Lickinghole Basin.  Neither the Grantor nor its employees, agents or independent contractors shall modify, alter, reconstruct, interfere with, disturb or otherwise change in any way any park improvement authorized in section 3 and located within the Easement, except to temporarily disturb the improvements in conjunction with the required construction, reconstruction or maintenance work provided herein.  Grantor shall promptly reconstruct, replace or repair any disturbed improvements.  Neither the Grantor nor its employees, agents or independent contractors shall construct or maintain any roadway, or erect any building, fence, retaining wall or other structure within the Easement. 

C.      Grantee’s right to assign.  The Grantee shall have the right to assign this Deed to another public entity as its interests may require.  An eligible assignee shall be one that is able to perform the terms, conditions and obligations of this Deed to assure that its purposes are fulfilled.

            D.        Enforcement.  In addition to any remedy provided by law to enforce the terms of this Deed, the parties shall have the following rights and obligations:

1.            Action at law inadequate remedy.  It is conclusively presumed that an action at law seeking a monetary remedy is an inadequate remedy for any breach or violation, or any attempted breach or violation, of any term of this Deed.

2.           Failure to enforce does not waive right to enforce.  The failure of either party to enforce any term of this Deed shall not be deemed a waiver of the right to do so thereafter, nor discharge nor relieve the other from thereafter complying with any such term.

3.            No third party right of enforcement.  Nothing in this Easement shall create any right in the public or any third party to maintain any suit or action against either party hereto to enforce the terms of this Deed.

                        E.         Notice of proposed transfer or sale.  The Grantor, its successors and assigns, shall notify the Grantee in writing at the time of closing on any transfer or sale of the Property.  In any deed conveying all or any part of the Property, the Easement shall be referenced by deed book and page number in the deed of conveyance and shall state that this Deed is binding upon all successors in interest in the Property in perpetuity.

F.       Relation to applicable laws.  This Deed does not replace, abrogate or otherwise supersede any federal, state or local laws applicable to the Property.

                        G.         Severability.  If any provision of this Deed is determined to be invalid by a court of competent jurisdiction, any remaining provisions of this Deed shall not be affected thereby.

 

H.      Recordation.  Upon execution by the parties, this Deed shall be recorded with the record of land titles in the Clerk’s Office of the Circuit Court of Albemarle, Virginia.

I.       Authority to convey easement.  The Grantor covenants that it is vested with good title to the Property and may convey the Easement.

J.       Authority to accept easement.  The Grantee is authorized to accept the Easement pursuant to Virginia Code § 15.2-1800.

The Grantee, acting by and through its County Executive, duly authorized by resolution of the Board of Supervisors of Albemarle County, Virginia, does hereby accept this Deed.

WITNESS the following signatures.

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