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HomeMy WebLinkAboutAgenda 07_SD-21-11_47 Cheesefactory Rd_Hickory Hillside_SK#SD‐21‐11  Staff Comments       1  1 of 6  CITY OF SOUTH BURLINGTON  DEVELOPMENT REVIEW BOARD  SD‐21‐11_47 Cheesefactory Rd_Hickory Hillside_SK_2021‐ 04‐06.docx  DEPARTMENT OF PLANNING & ZONING   Report preparation date: March 31, 2021  Plans received: March 2, 2021  47 Cheesefactory Road  Sketch Plan Application #SD‐21‐11  Meeting date: April 6, 2021  Owner/Applicant  Hickory Hillside, LLC  32 Main St, Suite 302A  Chatham, NY 12534    Property Information  Tax Parcel 0860‐01731  Southeast Quadrant – Natural Resource Protection (NRP)  67.6 acres   Engineer  Lamoureux & Dickinson Consulting Engineers  14 Morse Dr  Essex, VT 05452  Location Map        PROJECT DESCRIPTION  Sketch plan application #SD‐21‐11 of Hickory Hillside, LLC to subdivide an approximately 67.6 acre parcel  into three lots of 66.4 acres (Lot 1), 0.6 acres (Lot 2), and 0.6 acres (Lot 3) for the purpose of  #SD‐21‐11  Staff Comments       2  2 of 6  constructing a single family home on each of Lots 1, 2 and 3, and conserving the unbuilt portion of Lot 1,  47 Cheesefactory Road.    COMMENTS  Development Review Planner Marla Keene and Director of Planning and Zoning Paul Conner (“Staff”)   have reviewed the plans submitted on 10/5/2019 and offer the following comments. Numbered items  for the Board’s attention are in red.    PERMIT HISTORY  A similar application received preliminary plat approval on January 20, 2020.  Application for final plat is  required within 12 months of approval of the preliminary plat.  Since the applicant did not submit a  complete application meeting the conditions of the preliminary plat approval by January 20, 2021, the  preliminary plat is invalidated and the applicant has submitted this application for sketch plan review.   The applicant has also made minor modifications to the project.  Since this is the second application, and  the applicant has progressed much of the project to the preliminary plat stage, more detail that is  typically available was submitted as part of this application package.  The Project is located in the Southeast Quadrant Natural Resource Protection district.  The applicant is  proposing a four lot subdivision.  The subdivision is largely governed by LDR 9.12, which allows lots that  have been in existence since June 22, 1992 to be subdivided and developed with one or more detached  single family units subject to conditional use review if they meet certain standards, discussed below.   This property has been in existence in its current form since before June 22, 1992 therefore subdivision  is allowed.    CONTEXT  The property is located in an area exempt from Interim Zoning.  The property is located in the Natural  Resource Protection district.  Development within the SEQ‐NRP district is permissible pursuant to a  conservation plan approved by the Development Review Board (Section 9.12A (2))).  Section 9.12B  further states that the DRB may allow a subdivision of no more than three (3) lots and construction of  one (1) single family dwelling unit on each of the lots except where there is sufficient space to develop  three units outside the natural resource protection (NRP) zoning district.  This entire lot is located in the  SEQ‐NRP therefore three lots with a dwelling unit on each are allowed.  No portion of the development  may be within a primary natural community or its related buffer.  Such development is subject to DRB  approval of a conservation plan that balances development or land utilization and conservation.  On an overall basis, the applicant proposes to construct three homes with a shared driveway.  The  applicant is proposing that the three homes be relatively clustered together, and that the remaining  lands remain in agricultural use.      ZONING DISTRICT & DIMENSIONAL REQUIREMENTS  Setbacks, Coverages & Lot Dimensions  Within the SEQ‐NRP zoning district, the minimum lot size for a single family home is 12,000 sq. ft. with a  base density of 1 units per acre.  Maximum building coverage is 15% and maximum lot coverage is 30%.  All  #SD‐21‐11  Staff Comments       3  3 of 6  units must be clustered to maximize the resource values of the property and have no portion within a  designated primary natural community or its related buffer.  All dwelling units must be detached single  family houses located no more than 100‐feet from any other structure.  Staff has no concerns with these  criteria.  A subdivision plan within this district is subject to the DRB’s approval of a conservation plan in a form  acceptable to the City Attorney that permanently encumbers the land against further land subdivision and  development.  The applicant has prepared a draft conservation easement, submitted with this application.      SEQ STANDARDS  The SEQ‐NRP district has certain restrictions on the type of development which may occur, discussed below.   HEIGHT  The maximum height for single family homes with a pitched roof in the SEQ‐NRP district is 28 feet.  Height  waivers are not permissible within this district.  CONSERVATION (INCLUDES OPEN SPACE AND AGRICULTURAL STANDARDS)  Staff considers that through the conservation of 67 acres and the restriction of development to a limited  portion of the existing parcel, the project meets the conservation, open space and agricultural goals of  the district, whose purpose are to enhance overall neighborhood and natural resource values.    SEQ‐NRP STANDARDS  Where the lot is fifteen (15) acres or more in contiguous area, the Development Review Board may allow  a subdivision of no more than three (3) lots and construction of one (1) single family dwelling unit on  each of these lots.  The applicant’s proposal is consistent with this criterion.    The development is subject to the following additional provisions  1. Each lot have a minimum size of 12,000 sq ft per dwelling unit – this standard appears to be met  2. The development may not be located within a primary natural community or its related buffer  –  This  standard  refers  to  the  natural  communities  identified  in  the  2005  Arrowwood  Environmental Report.  The natural communities map is included in the packet for the Board.   Natural communities are not proposed to be impacted.  3. Structures must be located no more than 100 feet from any other structure – The applicant has  requested a waiver of this standard to allow homes to be located in a line, with the homes  approximately 100‐feet apart in a line, placing the outermost homes around 220 feet apart.  Staff  recommends that though the Board has the authority to grant such a waiver as a PUD, they use  this authority judiciously since this requirement only applies in the SEQ‐NRP, and this project is  only a PUD because development of more than one home requires consideration as a PUD in the  SEQ.    Staff  notes  strict  compliance  with  this  standard  would  yield homes in a triangular  configuration, and would result in a clustered development.    #SD‐21‐11  Staff Comments       4  4 of 6  1. Staff recommends the Board ask the applicant to describe why they are requesting this waiver  and provide feedback on whether the applicant should continue to pursue it at the next stage  of review.  4. The dwelling units shall be detached single family dwellings – this standard is proposed to be to  be met  5. Such subdivision plan shall be subject to the DRB’s approval of a conservation plan in a form  acceptable to the City Attorney that permanently encumbers the land against further land  subdivision and development – As discussed above, a draft easement has been provided.    SUBDIVISION STANDARDS  Subdivision standards pertain to water and wastewater capacity, natural resource protection, traffic,  visual  compatibility  with  the  surrounding  area,  open  space,  fire  protection,  relationship  to  the  Comprehensive Plan, and public infrastructure.  WATER AND WASTEWATER  The applicant is proposing to provide on‐site water and wastewater systems. There are no municipal  water or wastewater systems available to serve the property.  ACCESS & CIRCULATION  The  Applicant  is  proposing  to  reuse  an  existing  curb  cut  currently  used  to  access  the  property  for  agricultural purposes.  The homes will be accessed via a single curb cut.  Staff considers this configuration  adequately protective against congestion on adjacent roads.    WETLANDS  The applicant performed a wetland survey and identified a large area of Class II wetland contiguous with  Muddy Brook at the southern end of the property outside of the area of disturbance.  The applicant also  identified a Class III wetland, which they are proposing to impact, along with its buffer, at the entrance to  the driveway.  The wetland delineation was performed in December 2020.  Since direct impacts are  proposed, Staff considers the applicant should confirm the delineation with the State wetlands program  during the growing season.  OPEN SPACE  The applicant is proposing to cluster the three homes near the north end of the site and retain the  remainder of the lot in agricultural use.  FIRE PROTECTION  Because the homes will be located greater than 150‐feet from a public right of way, all homes must have  a 13D compliant sprinkler system.   ROADS  The roadway to access the three homes is allowed as a private road as it serves five or fewer dwelling  units.  The road is 20‐feet wide and the end is configured so that it meets one of the allowable street end  alternatives in 15.12J.    STORMWATER  The  City  Stormwater  Section  reviewed  the  provided  plans  on  3/22/2021  and  offers  the  following  #SD‐21‐11  Staff Comments       5  5 of 6  comments.  The Stormwater Section has reviewed the “Hickory Hillside‐ Planned Unit Development” site plan  prepared by Lamoureux & Dickinson Consulting Engineers, Inc., dated 1/18/2021. We would like to  offer the following comments:  1. This project is located within the Muddy Brook watershed. Please confirm the cold‐water  designation.    2.  The project appears to create greater than 1/2 acre of impervious area.  The quantities of  impervious are not consistent between the numbers given in the Proposed Conditions and  the Proposed Stormwater Treatment sections of the Narrative. The Stormwater Layout and  Drainage Area sheet does not include the miscellaneous 0.07 ac mentioned in the Proposed  Conditions. Assuming that all impervious is accounted for, it requires the applicant to follow  the standards set forth in the South Burlington Land Development Regulations (LDRs) Article  12.03. Additionally, if construction occurs after July 1, 2022, a State Stormwater Discharge  Permit (3‐9050) will be necessary.    3. Please note that the 2017 VSMM requires the underdrain have 3” separation from the  bioretention media.    4. Is the seed mix specified tolerant to the hydric conditions given?    5. Has the applicant confirmed the depth to seasonal high groundwater? I’m concerned that  given the proximity of the wetland and the ledge, there may be significant ground water.    6. Have the wetland delineations been confirmed with VT DEC? Specifically, the Class 3  designation adjacent to the bioretention system?    7. Please include the detail for the outlet pipe/ structure for the bioretention system.    8. The applicant is requested to show discharge locations for all potential roof drains.     9. Please request a soil phosphorous test using the Morgan Method (or approved equivalent)  for bioretention media per VSMM.    10. Please include the EPSC plans for the proposed development.  Staff  considers  it  appears  the  applicant  is  developing  their  plans  in  a  manner  which  will  result  in  compliance with these comments, therefore unless the applicant desires, no additional discussion is  needed at this time.    OTHER  The applicant has requested that the project be approved with phasing so that the construction of the  private road is not required until such time as the home on Lot 2 or 3 is developed.  Similarly, they are  requesting  that  the  stormwater  treatment  practice  not  be  required until a home on Lot 2 or 3 is  #SD‐21‐11  Staff Comments       6  6 of 6  developed.  Staff supports these requests.    RECOMMENDATION  Staff recommends that the Board discuss the Project with the applicant and conclude the meeting.     Respectfully submitted,    Marla Keene, Development Review Planner    GRANT OF DEVELOPMENT RIGHTS, CONSERVATION RESTRICTIONS, OPTION TO PURCHASE, and RIGHT OF ENFORCEMENT OF THE UNITED STATES KNOW ALL PERSONS BY THESE PRESENTS that HICKORY HILLSIDE, LLC of South Burlington, County of Chittenden, State of Vermont, on behalf of Hickory Hillside, LLC and Hickory Hillside, LLC's successors, and assigns (hereinafter “Grantor”), pursuant to Title 10 V.S.A. Chapters 34 and 155 and in consideration of the payment of Ten Dollars and other valuable consideration paid to Grantor’s full satisfaction, does freely give, grant, sell, convey, and confirm unto the VERMONT LAND TRUST, INC., a non-profit corporation organized under the laws of the State of Vermont, with its principal offices in Montpelier, Vermont, and qualified under Sections 501(c)(3) and 170(h) of the Internal Revenue Code (“VLT”), and the VERMONT HOUSING AND CONSERVATION BOARD, a public instrumentality of the State of Vermont with its office in Montpelier, Vermont (“VHCB”), and their respective successors and assigns (hereinafter collectively “Grantees”) as tenants in common, forever, the development rights, option to purchase at agricultural value and a perpetual conservation easement and restrictions (hereinafter known as the “Grant”) in certain lands consisting of 67 acres, more or less, with the buildings and improvements now or hereafter situated thereon (hereinafter “Protected Property”) located in the Town of South Burlington, Chittenden County, State of Vermont, said Protected Property being more particularly described in Schedule A attached hereto and incorporated herein. Grantor also gives, grants, sells, conveys and confirms a right of enforcement unto the UNITED STATES OF AMERICA, acting by and through the United States Department of Agriculture (“USDA”) Natural Resources Conservation Service ("NRCS" or “UNITED STATES”) on behalf of the Commodity Credit Corporation, as its interest appears herein. The Agricultural Conservation Easement Program (“ACEP”), 16 U.S.C. 3865 et seq., and 7 CFR 1468 et seq. facilitated and provided funding for the purchase of this Grant, an agricultural land easement under ACEP, on the Protected Property for the purpose of protecting the agricultural use and future viability, and related conservation values of the Protected Property, by limiting nonagricultural uses and conservation values of the Protected Property. The development rights hereby conveyed to Grantees shall include all development rights except those specifically reserved by Grantor herein and those reasonably required to carry out the permitted uses of the Protected Property as herein described. The development rights and option hereby conveyed are rights and interests in real property pursuant to Title 10 V.S.A. §§ 823 and 6303. The conservation restrictions hereby conveyed to Grantees consist of covenants on the part of Grantor to do or refrain from doing, severally and collectively, the various acts set forth below, to the extent those acts relate to Grantor and not exclusively to Grantees. Grantor and Grantees acknowledge that the conservation restrictions constitute a servitude upon the land and run with the land. The Grantor and Grantees and their respective heirs, successors, agents, assigns, lessees, and any other person claiming under them shall comply with all terms, conditions and restrictions of this Grant. I. Purposes of the Grant & Highly Erodible Land Conservation Plan A. Purposes of the Grant 1. Consistent with the goals set forth in 10 V.S.A. §§ 821 and 6301, the Grantor, Grantees and the United States acknowledge that this Grant is acquired with its primary purpose being to protect in perpetuity the agricultural use and future viability of the Protected Property. The primary purpose includes the purpose of promoting the sustainable management of soil resources in order to facilitate active and economically viable farm use of the Protected Property now and in the future. 2. Grantor, Grantees and the United States acknowledge the following secondary purposes: to conserve scenic, open space, wildlife habitat, and other natural resources associated with the Protected Property; to improve the quality of life for Vermonters; and, to maintain for the benefit of future generations the essential characteristics of the Vermont countryside. Natural resource conservation includes, but is not limited to, landform and vegetation changes that may accommodate riparian, floodplain and wetland functions, and therefore protects natural flowages and stream equilibrium conditions. 3. The purpose of ensuring that working and productive agricultural lands remain available for production agriculture, affordable and owned by individuals actively engaged in farming will be further advanced by the Option to Purchase at Agricultural Value, as incorporated below. 4. These purposes will be advanced by conserving the Protected Property because it possesses the following attributes: a) 52 acres of agricultural soils of statewide significance which are 78% of the ProtectedDRAFTncorncor nt unto the nt unto th Agriculture (“USAgricultu n behalf of the Common behalf of th ACEP”), 16 U.S.C. 3865 et seq., aACEP”), 16 U.S.C. 3865 et seq ase of this Grant, an agricultural laase of this Grant, an agricultural la of protecting the agricultural use f protecting the agr ected Property, by limiting nonagrProperty, by lim veyed to Grantees shall include aleyed to Grantees shall include erein and those reasonably requirend those reasonably require in described. The development ried. The development ri erty pursuant to Title 10 V.S.A. §erty pursuant to Title 10 V.S.A. § Grantees consist of covenants on Grantees consist of covena vely, the various acts set forth belovely, the various acts set forth antees. Grantor and Grantees acknantees. Grantor and Grantees ack pon the land and run with the landn the land and run with the land ents, assigns, lessees, and any othigns, lessees, and any oth and restrictions of this Grant.and restrictions of this rposes of the Grant & Highly Errposes of the Grant & Highly E poses of the Grantposes of t onsistent with tonsistent with t s acknowls acknowl ral ural u Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 2 Property; b) 3,365 feet of frontage on Cheesefactory Road and VT Route 116, public highways with scenic vistas; c) in the vicinity of two other properties previously protected by Grantees; d) traversed by 880 feet of Muddy Brook; e) wetlands and wildlife habitat. Grantor and Grantees recognize these agricultural, silvicultural, scenic, ecological, and natural resource values of the Protected Property, and share the common purpose of conserving these values by the conveyance of conservation restrictions, development rights, and option to purchase, to prevent the use, fragmentation, or development of the Protected Property for any purpose or in any manner which would conflict with the maintenance of these values. Grantor and Grantees also recognize that the objectives of ensuring that working and productive agricultural lands remain available for production agriculture, affordable and owned by persons actively engaged in farming will be further advanced by the Option to Purchase at Agricultural Value, as incorporated below. Grantees accept such conservation restrictions, development rights and option to purchase in order to conserve these values for present and future generations and to ensure resale of the Protected Property at its agricultural value. The purposes set forth above in this Section I are hereinafter collectively referred to as “Purposes of this Grant.” B. Highly Erodible Land Conservation Plan 1. As required by 7 CFR Part 12, the Grantor shall conduct all agricultural operations on the Protected Property in a manner consistent with a conservation plan for highly erodible land (known herein as the “HEL Conservation Plan”) prepared by NRCS in consultation with the Grantor and Grantees. The HEL Conservation Plan shall be developed using the standards and specifications of the NRCS Field Office Technical Guide and 7 CFR Part 12 pertaining to all highly erodible land. NRCS shall have the right to enter upon the Protected Property, with advance notice to the Grantor and Grantees, in order to monitor compliance with the HEL Conservation Plan. 2. In the event of non-compliance with the HEL Conservation Plan, NRCS shall work with the Grantor to explore methods of compliance and give the Grantor a reasonable amount of time, not to exceed twelve months, to take corrective action. If the Grantor does not comply with the HEL Conservation Plan, NRCS will inform Grantees of the Grantor’s non-compliance. Grantees shall take all reasonable steps to secure compliance with the HEL Conservation Plan following written notification from NRCS that (a) there is a substantial, ongoing event or circumstance of non-compliance with the HEL Conservation Plan; (b) NRCS has worked with the Grantor to correct such non-compliance; and, (c) Grantor has exhausted their appeal rights under applicable NRCS regulations. Grantor shall be liable for any costs incurred by NRCS its successors or assigns as a result of Grantor’s negligence and/or failure to comply with the requirements of this Grant as it relates to the HEL Conservation Plan referenced herein. 3. If the NRCS standards and specifications for highly erodible land are revised after the date of this Grant based on an Act of Congress, NRCS will work cooperatively with the Grantor to develop and implement a revised HEL Conservation Plan. The provisions of this section apply to the highly erodible land conservation requirements of the Agricultural Lands Easement Program and are not intended to affect any other natural resources conservation requirements to which the Grantor may be or become subject. II. Restricted Uses of Protected Property The restrictions hereby imposed upon the Protected Property and the uses that are prohibited, except as may be specifically permitted in Section III of this Grant, are as follows: 1.Residential and commercial use. No residential, commercial, industrial, or mining activities shall be permitted, and no building, structure or appurtenant facility or improvement shall be constructed, created, installed, erected, or moved onto the Protected Property, except as specifically permitted under this Grant. 2.Granting of Easements. No new rights-of-way, easements of ingress or egress, driveways, roads, utility lines, other easements, or other use restrictions shall be constructed, developed, granted, or maintained into, on, over, under, or across the Protected Property, without the prior written permission of Grantees. Grantees may grant permission for any rights-of-way, easements of ingress or egress, driveways, roads, utility lines, other easements, or other use restrictions, if they determine, in their sole discretion, that any such rights-of-way, easements of ingress or egress, driveways, roads, utility lines, other easements or other use restrictions are consistent with the Purposes of this Grant.DRAFTvely refervely ref all conduct all agricultural operatioall conduct all agricultural op on plan for highly erodible land (kon plan for highly erodible land ( consultation with the Grantor and consultation with the Grantor and standards and specifications of thendards and specifi ng to all highly erodible land. NRhighly erod advance notice to the Grantor and advance notice to the Gr ion Plan.on Plan. mpliance with the HEL Conservatie with the HEL Conservati mpliance and give the Grantor a rnd give the Grantor a r rrective action. If the Grantor doerective action. If the Gran inform Grantees of the Grantor’s inform Grantees of the Gra ompliance with the HEL Conservaompliance with the HEL Conse is a substantial, ongoing event oris a substantial, ongoing event or an; (b) NRCS has worked with theb) NRCS has worked with the ted their appeal rights under applippeal rights under appli ed by NRCS its successors or assigd by NRCS its successor he requirements of this Grant as ihe requirements of this Grant If the NRCS standards anIf the NRCS standards an Grant based on an Act of CGrant based on an Act o plement a revised HEplement a revised H nd conservationnd conservation y other nay other na Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 3 3.Signage. No signs, billboards, or outdoor advertising of any kind shall be erected or displayed on the Protected Property. Grantor, however, may erect and maintain reasonable: (a) signs indicating the name of the Protected Property, (b) boundary markers, (c) directional signs, (d) signs regarding hunting, fishing, trapping, trespassing on the Protected Property or signs otherwise regarding public access to the Protected Property, (e) memorial plaques, (f) temporary signs indicating that the Protected Property is for sale or lease, (g) signs informing the public that any agricultural or timber products are for sale or are being grown on the Protected Property, (h) political or religious signs, or (i) signs informing the public of any rural enterprise approved pursuant to Section III below. Grantees, with the permission of Grantor, may erect and maintain signs designating the Protected Property as land under the protection of Grantees. 4.Waste and Dumping. No placement, collection, or storage of trash, refuse, human waste, or any other harmful or offensive material on the Protected Property shall be permitted except at such locations, if any, and in such a manner as shall be approved in advance in writing by Grantees, which approval shall not be unreasonably withheld if such placement, collection or storage is consistent with the Purposes of this Grant. The on-site storage and spreading of agricultural inputs including, but not limited to, lime, fertilizer, pesticides, compost or manure for agricultural practices and purposes, the storage of feed, and the temporary storage of trash generated on the Protected Property in receptacles for periodic off-site disposal, shall be permitted without such prior written approval. 5.Surface Alteration. No disturbance of the surface, including but not limited to, filling, excavation, removal of topsoil, sand, gravel, rocks or minerals, or change of the topography of the land shall be permitted, except as may be reasonably necessary to carry out the uses permitted on the Protected Property under this Grant. 6.Oil, Gas, or Mineral Exploration and Extraction. Mining or extraction of soil, sand, gravel, oil, natural gas, fuel, coal, or any other mineral substance owned by Grantor as of the date of this Grant or later acquired by Grantor, using any surface mining, subsurface mining, or dredging method, from the Protected Property is prohibited, except for limited mining activities for materials (e.g. sand, gravel, or shale) used for agricultural operations on the Protected Property and other property owned by Grantor. Extraction of materials used for agricultural operations, must be limited to a small, defined area or acreage and must not adversely impact the conservation values or the agricultural uses of the Protected Property. In no case shall surface mining of subsurface oil, gas, or other minerals be permitted. If a third party owns or leases the oil, natural gas, or any other mineral substance at the time this Grant is executed, and their interests have not been subordinated to this Grant, the Grantor must require, to the greatest extent possible, that any oil, natural gas, and mineral exploration and extraction conducted by such third party is conducted in accordance with this paragraph 6. 7.Subdivision. For the purposes of this Grant, the Protected Property shall be considered one (1) parcel of land. The Protected Property shall not be subdivided, partitioned, or conveyed in separate parcels, nor shall ownership of the buildings on the Protected Property be separated from the ownership of the Protected Property without the prior written approval of Grantees, which approval may be granted, conditioned or denied in Grantees’ sole discretion except as otherwise specifically permitted in this Grant. To protect the agricultural use and future agricultural viability and related conservation values of the Protected Property, the boundaries of such division(s) must be approved in writing by Grantees and NRCS before any such division, subdivision or separate conveyance occurs. 8.Limitation on Impervious Surfaces. Impervious surfaces will not exceed 7% of the Protected Property, excluding NRCS-approved conservation practices. Impervious surfaces are defined as material that does not allow water to percolate into the soil on the Protected Property; including, but not limited to, residential buildings, agricultural buildings with or without flooring, paved areas, and any other surfaces that are covered by asphalt, concrete, or roofs. This limitation does not include public roads or other roads owned and controlled by parties with superior rights to those rights conveyed to Grantees by this Grant. In the event the Protected Property is subdivided as provided for in Paragraph 7 above, the total cumulative impervious surface of the subdivided parcels shall not exceed the impervious limitation referenced above. The Grantor, with Grantees’ approval, shall allocate the impervious surface limit among the subdivided parcels and ensure said impervious surface limitation is clearly defined in each subdivided parcel’s recorded instrument. 9.Future Activity. No use shall be made of the Protected Property, and no activity thereon shall be permitted which is or is likely to become inconsistent with the Purposes of this Grant. Grantor and Grantees acknowledge that, in view of the perpetual nature of this Grant, they are unable to foresee all potential future land uses, future technologies, and future evolution of the land and other natural resources, and other future occurrences affecting the Purposes of this Grant. Grantees, therefore, in theirDRAFTrecerece uding but not limiteduding but n hange of the topography ofange of the topog y out the uses permitted on the Py out the uses permitte xtraction.xtraction Mining or extraction ofining or extraction ofFl substance owned by Grantor as obstance owned by ce mining, subsurface mining, or dg, subsurfac t for limited mining activities for mt for limited mining acti ons on the Protected Property and ons on the Protected Property gricultural operations, must be limcultural operations, must be lim ct the conservation values or the aonservation values or the a ining of subsurface oil, gas, or othsurface oil, gas, or oth al gas, or any other mineral substaal gas, or any other minera n subordinated to this Grant, the Gn subordinated to this Gran natural gas, and mineral exploratnatural gas, and mineral explo ordance with this paragraph 6.ordance with this paragraph 6. division. For the purposes of thisFor the purposes of this DRland. The Protected Property shaland. The Protected Pro els, nor shall ownership of the builels, nor shall ownership of the of the Protected Property withoutof the Protected Property without d, conditioned or denied in Grand, conditioned or denied in Gran . To protect the agricultur. To protect the agricu rotected Property, therotected Property, th CS before any sCS before any s ionion Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 4 sole discretion, may determine whether (a) proposed uses or proposed improvements not contemplated by or addressed in this Grant, or (b) alterations in existing uses or structures, are consistent with the Purposes of this Grant. III. Permitted Uses of the Protected Property. Without limiting the general applicability of the foregoing, the Protected Property shall be used for agricultural, forestry, education, non-commercial recreation, and open space purposes. Grantor has the right to make the following uses of the Protected Property: 1.Agricultural Production. The production, processing, and marketing of agricultural crops and livestock is permitted provided these activities are conducted in a manner not inconsistent with the terms of the HEL Conservation Plan, if applicable. 2.Agricultural Uses. The right to establish, re-establish, maintain, and use cultivated fields, orchards, and pastures together with the right to construct, maintain, and repair fences and gravel or other permeable surfaced access roads for these purposes, all in accordance with sound agricultural practices and sound husbandry principles; provided, however, that Grantor shall obtain Grantees’ prior written approval to clearcut forest land to establish fields, orchards or pastures. Grantees’ approval shall not be unreasonably withheld if such clearcutting is consistent with the Purposes of this Grant. 3.Fallow Land. Each time that the agricultural land on the Protected Property lies fallow for more than two successive years (the “fallow land”), Grantor shall cooperate with Grantees, at Grantees’ request, to maintain the fallow land in an open condition (meaning without trees and brush) and in active agricultural use. For example, Grantor shall permit access to the fallow land by Grantees and Grantees' contractors to crop, mow, or brush-hog. No obligation is hereby imposed upon Grantor or Grantees to maintain the fallow land in an open condition or in active agricultural use. 4.Maple Sugaring and Forest Management Plans. The right to conduct maple-sugaring operations and harvest firewood for heating residences and structures located on the Protected Property, or on other land owned by Grantor but excluded from this Grant, on existing woods roads only, without submission and approval of a forest management plan. The right to conduct commercial timber harvests, including harvests that support a sugaring operation, together with the right to construct and maintain roads necessary for such activities, in accordance with sound forestry practices and in accordance with a forest management plan for which Grantor has received the prior written approval of Grantees. Grantees' approval of forest management plans that may be submitted from time to time shall not be unreasonably withheld or conditioned, if such plans have been approved by a professional forester and if such plans are consistent with the Purposes of this Grant. 5.Trails. The right to clear, construct, and maintain trails for non-commercial walking, horseback riding, skiing, and other non-commercial, non-motorized recreational activities within and across the Protected Property. Non-commercial snowmobiling may be permitted at the discretion of Grantor. 6.On-Farm Energy Production. Renewable energy production is allowed for the purpose of generating energy for the agricultural and residential needs of the Protected Property. Renewable energy sources must be approved by Grantees’, in their sole discretion, and at a minimum shall be built and maintained within impervious surface limits, with minimal impact on the conservation values of the Protected Property and consistent with the Purposes of this Grant, as determined by Grantees. The sale of excess electric power is allowed provided that it is generated in the operation of renewable energy structures and associated equipment or other energy structures that Grantees have previously approved in writing as being consistent with the Purposes of this Grant. 7. Non-Residential Buildings. The right to construct, maintain, repair, renovate, replace, enlarge, rebuild, and use new and existing barns, sugar houses, or similar non-residential structures or facilities, together with necessary access drives and utilities for agricultural and forestry uses, on the Protected Property; provided, however, that (a) the structures are used exclusively for agricultural or forestry purposes, and (b) any new construction, other than normal maintenance and repair, has been approved in writing in advance by Grantees. Grantees' approval may include designation of a “Complex” (meaning an area or areas of the Protected Property within which certain structures are or shall be grouped together) surrounding the structures and shall not otherwise be unreasonably withheld or conditioned; provided, however, that the structure or other improvement is located in a manner which is consistent with the Purposes of this Grant. Grantor shall not deem unreasonable a condition by Grantees that certain structures must be located within an existing Complex or a Complex which may be designated in the future as provided in this Section III.DRAFTGranteGrante antees’ apprantees’ a s of this Grant.s of this on the Protected Property lieson the Protected Pro shall cooperate with Grantees, atshall cooperate with Gran ndition (meaning without trees andndition (meaning without trees a mit access to the fallow land by Gmit access to the fallow land by G obligation is hereby imposed uponbligation is hereby i dition or in active agricultural user in active ag Management Plans.Managemen The right to cThe righ AFg residences and structures locatedesidences and structures locate xcluded from this Grant, on existid from this Grant, on existi management plan. The right to cot plan. The right to co ugaring operation, together with tugaring operation, together with t ies, in accordance with sound foreies, in accordance with sou which Grantor has received the prwhich Grantor has received th ement plans that may be submittedement plans that may be submitte ed, if such plans have been approvf such plans have been approv Purposes of this Grant.of this Gran Trails.Trails. The right to clear, cons The right to clear, co Driding, skiing, and other non-comriding, skiing, and other non-com Protected Property. Non-commProtected Property. Non n-Farm Energn-Farm EnergDfor the afor the a apap Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 5 10. Farmstead Complex. The right to construct, maintain, repair, renovate, replace, enlarge, rebuild and use new farm buildings for non-residential, agricultural uses and appurtenant structures and improvements, including drives and utilities, normally associated with a farm, all within the designated Farmstead Complex without the prior written approval of Grantees. The Farmstead Complex is an area consisting of 6 acres, more or less, and is more particularly described in Schedule attached hereto and incorporated herein, and is depicted on the Hickory Hillside, LLC- Parcel C Conservation Plan described in Schedule A attached hereto and incorporated herein. Grantor shall notify Grantees in writing prior to commencing construction on any new structure or improvement within the Farmstead Complex. With the prior written approval of Grantees, the right to construct, maintain, repair, replace, relocate, improve and use systems for disposal of human waste and for supply of water for human consumption (collectively "Systems") on the Protected Property outside of the Farmstead Complex for the benefit of buildings or structures permitted in the Farmstead Complex, provided that such Systems comply with Vermont Department of Environmental Conservation Wastewater System and Potable Water Supply Rules or the then applicable law or regulations governing Systems. 11. Farm Labor Housing. The right to construct, or to permit another person to construct, three (3) residential dwellings, together with customary appurtenant utilities and improvements associated with the dwellings, including wastewater disposal systems and potable water supplies, within the Farmstead Complex, consisting of an areas not to exceed two (2) acres (the “Future House Site”).. The dwellings and appurtenant utilities and improvements, or the right to construct same, may be conveyed separately from the Protected Property with the benefit of a permanent easement or other interest in land approved by the Grantees, over and under the Future House Site to allow the construction, use, maintenance, repair and replacement of the dwelling and appurtenant utilities and improvements. Also, the right to convey an easement for ingress and egress between Cheesefactory Road and the Future House Site in a location shown on the Hickory Hillside, LLC Farm Plan. The dwellings, appurtenant utilities and improvements, or the right to construct same, and the easement or other interest and easement for ingress and egress shall be freely alienable; provided, however, that before the first conveyance the Grantors shall obtain the written approval of the Grantees which approval shall be given if, in Grantees’ sole discretion, they determine that: (1) the instrument and manner of conveyance and the description of the Future House Sites and easements therein is consistent with the provisions of this Section III( ) and states that the use and development of the Future House Sites shall remain subject to this Section III( ); and (2) it provides the Grantors and their heirs, successors and assigns in ownership of the Protected Property with a perpetual right of first refusal to acquire the dwellings together with the appurtenant utilities and improvements. Also, notwithstanding the provisions of Section III (_), the right to conduct home occupations in the residences within the Future House Site without the prior approval of the Grantees. The home occupation shall be owned by the principal occupant of the dwellings in which it is located. In no case may the homeowner or principal occupant rent out the business area of the dwellings. Grantors shall notify Grantees in writing prior to commencing construction on any new residential structure or appurtenant utilities and improvements, and prior to commencing a home occupation. Any use of the Protected Property outside of the Future House Site by the owner of the dwellings in the Future House Site shall be subject to obtaining the prior written approval of the Grantees under Section II(_) of this Grant. 12. Right to Seek Approval for Additional Farm Labor Housing. For the purpose of providing housing exclusively for Grantor who is engaged in farming operations on the Protected Property or for persons employed by the Grantor in farming operations on the Protected Property, and for the employee’s family or household members, as a nonmonetary benefit of farm employment, the right to construct, use, maintain, repair, renovate, replace, enlarge and rebuild farm labor housing which may be within an existing building or a new building (the “FLH”) together with appurtenant non- residential structures and improvements, including drives, utilities, normally associated with a residence; provided, however, that prior to construction, renovation, replacement, enlargement or rebuilding Grantor shall obtain Grantees’ written approval which, in Grantees’ sole discretion, may be withheld or given subject to such conditions as the Grantees deem appropriate, if Grantor demonstrates to Grantees’ satisfaction that the FLH or alteration thereto is: 1. necessary to the current and reasonably foreseeable farm business on the Protected Property in order to facilitate the active and long-term economically viable agricultural use of the Protected Property; and 2. designed and sized to be no larger than is necessary to meet the needs of the current and reasonably foreseeable farm business on the Protected Property and to ensure that the Protected Property remains available for production agriculture, affordable and owned by persons actively engaged in farming; andDRAFT nd impnd imp r supplies, r suppli he “Future Househe “Futu construct same, may beconstruct same nent easement or other interesnent easement or oth to allow the construction, use,to allow the construction urtenant utilities and improvemenurtenant utilities and improvem ween Cheesefactory Road and the ween Cheesefactory Road and the Farm Plan. The dwellings, appurtearm Plan. The dwe d the easement or other interest aneasement or oth ded, however, that before the first er, that be e Grantees which approval shall be Grantees which approva nstrument and manner of conveyastrument and manner of conve erein is consistent with the provisis consistent with the provisi the Future House Sites shall remae House Sites shall rem d their heirs, successors and assigntheir heirs, successors and assign f first refusal to acquire the dwellif first refusal to acquire the Also, notwithstanding the provisioAlso, notwithstanding the pr sidences within the Future House sidences within the Future Hous cupation shall be owned by the prupation shall be owned by the pr may the homeowner or principal ochomeowner or principal oc ify Grantees in writing prior to cofy Grantees in writing prior to co purtenant utilities and improvemenpurtenant utilities and impro otected Property outside of the Fuotected Property outside of the F e shall be subject to obtaining thee shall be subject to obtaining the Right to Seek AppRight to Seek AppDexclusively exclusively ns empns emp Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 6 3. otherwise consistent with the Purposes of the Grant. Notwithstanding the foregoing, with the prior written approval of Grantees, the right to construct, maintain, repair, replace, relocate, improve and use systems for disposal of human waste and for supply of water for human consumption (collectively “Systems”) on the Protected Property outside of a Complex for the benefit of buildings or structures permitted in the Complex, provided that such Systems comply with Vermont Department of Environmental Conservation Wastewater System and Potable Water Supply Rules or the then applicable law or regulations governing Systems. If the FLH is not needed for farm labor housing in the future, temporary alternative uses of the structure deemed by the Grantees in their sole discretion to be consistent with the Purposes of this Grant may be permitted with the prior written approval of the Grantees. 13. Rural Enterprises. The right to conduct rural enterprises consistent with the Purposes of this Grant, especially the economically viable use of the Protected Property for agriculture, forestry and open space and the conservation of agriculturally and silviculturally productive land. In connection with such rural enterprises, the right to maintain, repair, enlarge, replace and use permitted structures with associated utility services, drives and appurtenant improvements within a Farmstead Complex, or other designated complex permitted by this Section III. Grantees may approve a new, non-residential, structure for an approved rural enterprise only if an existing structure is not suitable and the new structure is: 1. of a nature, intensity, scope, size, appearance, type and quantity compatible with the existing agricultural structures; 2. located in a way that minimizes negative impact on current and future agricultural operations; and, 3. not inconsistent with the Purposes of this Grant. No use or structure contemplated under this Section III(__) shall be commenced, constructed or located without first securing the prior written approval of Grantees, which approval Grantees may deny or condition in their sole discretion. 14. Minor Structures Clause. The right to construct, use, maintain, repair and replace a minimal number of non-permanent tent platform, lean-to or Adirondack shelter not to exceed 300 square feet in area provided, however, that any such structure shall be used exclusively for non-commercial, periodic camping, hunting and recreational purposes, and not for permanent occupancy; shall not have commercial utility services or an access road improved beyond what is minimally required to afford reasonable vehicular access; and shall not be located within the Ecological Protection Zone described in Section [IV], below. Grantor shall notify Grantees in writing prior to commencing the placement, construction or relocation of such permitted structure or access so that Grantees may review and approve the proposed location and dimensions of the structure and access, in order to ensure that the dimensions of the structure are in compliance with this section and the structure and access are located in a manner consistent with the Purposes of this Grant. In addition, Grantor may place a limited number of small hunting blinds on the Property in order to carry-out permitted hunting activities, provided that the location of such blinds must be consistent with the Purposes of this Grant. IV. Ecological Protection Zone The Ecological Protection Zone comprises a state-significant area of approximately nine acres and is generally depicted as "EPZ" on the Hickory Hillside, LLC- Parcel C Conservation Plan (hereafter the "EPZ"). The boundaries of the EPZ may be changed from time to time by mutual agreement of Grantor and Grantees, as established by a written agreement recorded in the Town of South Burlington Land Records and depicted on a new Farm Plan signed by Grantor and Grantees. Within the EPZ, the goals, prescriptions, and restrictions of this Section are in addition to the provisions of Sections II and III of this Grant, and where inconsistent, the provisions of this Section shall control. Within the EPZ the following shall apply: 1. Protection of the natural communities that naturally develop in the future in the EPZ, and the ecological processes that sustain them, shall be Grantor’s and Grantees’ highest priority in approving and conducting all activities. 2. All management activities, including without limitation forest management, recreational management and ecological management, shall focus on the goals of a) maintaining soil integrity, natural hydrology, and water quality values, and b) maintaining the natural structure and species composition of the natural communities present or communities that may develop naturally over time, informed by the best current ecological science.DRAFTplex, oplex, o sidential, strsidential he new structure ihe new s quantity compatible with the quantity compatible on current and future agricultural oon current and future agricultura rant.nt. ion III(__) shall be commenced, call be com l of Grantees, which approval Granl of Grantees, which approva The right to construct, use, maintao construct, use, mainta form, lean-to or Adirondack shelteform, lean-to or Adirondack shelte y such structure shall be used excly such structure shall be use ional purposes, and not for permanional purposes, and not for per s road improved beyond what is ms road improved beyond what is m hall not be located within the Ecolnot be located within the Ecol notify Grantees in writing prior toantees in writing prior to h permitted structure or access so th permitted structure or ac mensions of the structure and accmensions of the structure and liance with this section and the strliance with this section and the str f this Grant. In addition, Grantf this Grant. In addition, der to carry-out permittedder to carry-out permi h the Purposes of thh the Purposes of t rotectiorotectio Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 7 3. All forest management activities shall be conducted pursuant to a forest management plan that is consistent with the Purposes of this Grant and this Section. Any such activities shall employ all applicable recommended practices described in the regulations entitled "Acceptable Management Practices for Maintaining Water Quality on Logging Jobs in Vermont" promulgated by the Vermont Department of Forests, Parks and Recreation, dated August 15, 1987, subsequently revised effective August 11, 2018 and as may be amended from time to time (the "AMPs"). Management of the EPZ shall be informed by the best current ecological understanding of the unique characteristics at this site and the natural communities it supports. Silvicultural methods shall strive to mimic the natural, low-intensity disturbance regime specific to the natural communities that naturally develop in the future in this physical setting. 4. Grantees’ approval of a forest management plan submitted pursuant to this Section and Section III, above, shall not be unreasonably withheld or conditioned; provided that such plan: (i) is consistent with the Purposes of this Grant and with the provisions of this Section; and (ii) such plan has been approved by a professional forester. 5. Limited agricultural activities consistent with the Purposes of this Grant and with the provisions of this Section may be permitted in Grantees’ sole discretion. 6. In the context of acting under this Section, Grantor and Grantees may confer about what constitutes the best available ecological science; provided that, Grantees’ interpretation thereof shall control. V. Riparian Buffer Zone The Protected Property includes certain lands and premises lying on s northern side of the Muddy Brook subject to special protections as set forth herein to protect the water quality of such waterways and the ecological health of the natural systems associated with such waterways. Notwithstanding anything to the contrary contained in this Section, in the event that Grantor conveys a grant of conservation buffer easement, river corridor easement or a similar set of restrictions protecting water quality, riparian habitat and river function ("Buffer Easement") to Grantee VLT, then such Buffer Easement shall control and the terms of this Section shall no longer be in effect so long as such Buffer Easement remains in full force and effect. The location of and the restrictions applicable to these areas are as follows: Those areas on the Protected Property lying within fifty feet (50’) of the top of the banks of Muddy Brook as those waters may move from time to time, and also including any land located between the said tops of banks and the low water marks of such waterways, shall be designated as Riparian Buffer Zones (hereinafter "RBZ"). The location of the RBZ as of the date of this Grant is generally depicted on the Hickory Hillside, LLC- Parcel C Conservation Plan, described in Schedule A attached hereto. Within the RBZ, the goals, prescriptions and restrictions of this Section are in addition to the provisions of Sections II and III, and where inconsistent, the provisions of this Section shall control. Specifically, the principal goal for management within the RBZ is the establishment and maintenance of high quality buffers that provide an array of ecological benefits including, but not limited to: (i) buffering aquatic and wetland plants and animals from disturbance; (ii) preventing wetland and water-quality degradation; (iii) providing important plant and animal habitat; and (iv) providing organic matter, nutrients, and structure to aquatic systems. Any management or use of the RBZ shall be conducted in a manner designed to protect soil integrity and minimize erosion, shall incorporate up-to-date ecological knowledge and management practices, and shall be consistent with the principal goal detailed above. Without limiting the foregoing, any forest management activities within the RBZ (including without limitation the installation of new roads and trails) shall require Grantees’ prior approval. There shall be no agricultural activities (including without limitation the grazing or pasturing of animals) within the RBZ, except as may be approved in Grantees’ sole discretion VI. Public Access Easement Grantor does freely give, grant, sell, convey and confirm unto Grantees, and their respective successors and assigns, forever, a perpetual and separately assignable easement for an unpaved public recreational trail (all as more particularly set forth below), said easement being on, over, under and across the Protected Property, and measuring one (1) rod in width. The location of the easement will be fixed at the time the trail is to be developed by mutual consent of the parties and will be located in a manner that minimizes the impact on the agricultural soils, farm operation, and is consistent with Sections IV and V,DRAFTtion thtion th s lying on s northern side of ths lying on s northern t the water quality of such waterwt the water quality of such uch waterways. Notwithstanding uch waterways. Notwithstandin antor conveys a grant of conservaantor conveys a grant of conserva strictions protecting water qualityrictions protecting w VLT, then such Buffer Easement sen such Buffe so long as such Buffer Easement rch Buffer applicable to these areas are as foapplicable to these areas are ected Property lying within fifty froperty lying within fifty f aters may move from time to timemove from time to time ops of banks and the low water mops of banks and the low water m Buffer Zones (hereinafter "RBZ")Buffer Zones (hereinafter rally depicted on the Hickory Hillrally depicted on the Hickory edule A attached hereto. Within thedule A attached hereto. Within th n are in addition to the provisions oin addition to the provisions o of this Section shall control.ction shall control. Specifically, the principal goalSpecifically, the principal g aintenance of high quality buffers aintenance of high quality buffers mited to:mited to: (i)(i)buffering abuffering ))preventipreventi provprov prpr Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 8 above. The intent of the parties with respect to the location of the public recreational trail is to provide additional public recreation opportunities in South Burlington, in addition to connecting with a larger trail network in South Burlington, should one be created in the future. Such access shall be for non-motorized recreational use only. Grantees may limit or restrict the public use and access in the public interest. Grantees shall consult with Grantor from time to time about the public use and access and shall take reasonable steps to correct any erosion problems caused by public use and to minimize any adverse impact on Grantor’s use and enjoyment of the Protected Property. The rights conveyed pursuant to this Section VI are in addition to, not in lieu of, the covenants and restrictions otherwise conveyed by this Grant. In addition, Grantees, and their respective successors and assigns, shall have the right to improve, construct, manage, and maintain the trail for public recreational use, provided Grantees shall first notify Grantor of the name of the entity or organization that will be responsible for maintenance and management for the public's use of the trail. Grantor, for itself and its successors and assigns, expressly acknowledges that the easement and trail contemplated by this Section VI may become a part of the public trail systems in the City of South Burlington and, toward that end, Grantor, if requested, shall convey to said City such deeds of easement as may be required in order to effectuate that goal. Grantor and Grantees shall work in good faith to resolve any issues with respect to the location of the public recreational trail on the Property. Any trail location issue not resolved voluntarily shall be submitted to binding arbitration. The arbitrator's authority shall include the right to determine where the final public recreational trail should be located in order to (1) be consistent with the Purposes and terms of this Grant, (2) avoid interfering with Grantor’s farming operations, (3) be consistent with Sections IV and V of this Grant, and (4) prevent the damage of natural resources on the Property. The arbitrator shall be selected by the parties or by the American Arbitration Association if the parties cannot agree on an arbitrator. The costs of arbitration shall be shared equally by the parties, unless otherwise determined by the arbitrator due to one party being unreasonable or otherwise dilatory. The decision of the arbitrator shall be binding on the parties. The parties shall select an arbitrator within two weeks of the submission of an issue to arbitration, and every reasonable effort shall be made to complete arbitration of any dispute within thirty (30) days of the selection of an arbitrator. VII. Enforcement of the Covenants and Restrictions. Grantees shall make reasonable efforts to assure compliance by Grantor with all of the covenants and restrictions herein. In connection with such efforts, Grantees may make periodic inspection of all or any portion of the Protected Property, and for such inspection and enforcement purposes, Grantees shall have the right of reasonable access to the Protected Property. In the event that a Grantee becomes aware of an event or circumstance of non-compliance with this Grant, such Grantee shall give notice to Grantor and the other Grantees of such event or circumstance of non-compliance. With respect to Grantor, notice shall be via certified mail, return receipt requested, and demand corrective action by Grantor sufficient to abate such event or circumstance of non-compliance and restore the Protected Property to its previous condition. If Grantees, in their sole discretion, determine that the event or circumstance of noncompliance requires immediate action to prevent or mitigate significant damage to the conservation values of the Protected Property as provided in the Purposes of this Grant, then Grantees may pursue their rights under this enforcement section without prior notice to Grantor. In the event there has been an event or circumstance of non-compliance which is corrected through negotiation and voluntary compliance, but which has caused Grantees to incur extraordinary costs, including without limitation staff time and professional consultation costs, in investigating the non-compliance and securing its correction, Grantor shall, at Grantees' request, reimburse Grantees for all such costs incurred in investigating the non- compliance and in securing its correction. Failure by Grantor to cause discontinuance, abatement, or such other corrective action as may be demanded by Grantees within a reasonable time after receipt of notice and reasonable opportunity to take corrective action shall entitle Grantees to bring an action in a court of competent jurisdiction to enforce the terms of this Grant and to recover any damages arising from such non-compliance. Such damages, when recovered, may be applied by Grantees to corrective action on the Protected Property. If the court determines that Grantor has failed to comply with this Grant, Grantor shall reimburse Grantees for any reasonable costs of enforcement, including court costs and reasonable attorneys' fees, in addition to any other payments ordered by such court. In the event that a Grantee initiates litigation and the court determines that Grantor has not failed to comply with this Grant and that one or more of Grantees have initiated litigation without reasonable cause or in bad faith, then the Grantees who commenced the court proceedings shall reimburse Grantor for any reasonable costs of defending such action, including court ctuatectuate ues with respect toues with not resolved voluntarily not resolved vo clude the right to determine wclude the right to det e consistent with the Purposes ande consistent with the Purpo ations, (3) be consistent with Sectiations, (3) be consistent with Se ources on the Property.ources on the Pro s or by the American Arbitration Athe American f arbitration shall be shared equallshall be s one party being unreasonable or otone party being unreasonabl n the parties. The parties shall selhe parties. The parties shall se rbitration, and every reasonable efon, and every reasonable ef y (30) days of the selection of an aof the selection of an a Covenants and Restrictions.Covenants and Restriction make reasonable efforts to assure ake reasonable efforts to assure ein. In connection with such efforonnection with such effor e Protected Property, and for suche Protected Property, an of reasonable access to the Protecof reasonable access to the Pr or circumstance of non-complianor circumstance of non-complian her Grantees of such event or ciher Grantees of such event or ci certified mail, return receipcertified mail, return re nt or circumstance ofnt or circumstance o ntees, in their sontees, in their so res immeres imme ProPro Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 9 costs and reasonable attorneys' fees; provided, however, that this clause shall not apply to the United States. Grantor is responsible for the acts and omissions of persons acting on Grantor’s behalf, at Grantor’s direction or with Grantor’s permission, and Grantees shall have the right to enforce against Grantor for events or circumstances of non-compliance with this Grant resulting from such acts or omissions. However, as to the acts or omissions of third parties other than the aforesaid persons, Grantees shall not have a right to enforce this Grant against Grantor unless Grantor: (i) is complicit in said acts or omissions, (ii) fails to cooperate with Grantees in all respects to halt or abate the event or circumstance of non-compliance resulting from such acts or omissions, or (iii) fails to report such acts or omissions to Grantees promptly upon learning of them. Nor shall Grantees institute any enforcement proceeding against Grantor for any change to the Protected Property caused by natural disasters such as fire, flood, storm or earthquake. Grantees shall have the right, but not the obligation, to pursue all legal and equitable remedies against any third party responsible for an event or circumstance of non-compliance with this Grant and Grantor shall, at Grantees’ direction, assign Grantor’s right of action against such third party to Grantees, join Grantees in any suit or action against such third party, or appoint a Grantee as Grantor’s attorney in fact for the purpose of pursuing an enforcement suit or action against such third party. The parties to this Grant specifically acknowledge that events and circumstances of non- compliance constitute immediate and irreparable injury, loss, and damage to the Protected Property and accordingly entitle Grantees to such equitable relief, including but not limited to, injunctive relief, as the court deems just and appropriate. The remedies described herein are in addition to, and not in limitation of, any other remedies available to Grantees at law, in equity, or through administrative proceedings. No delay or omission by Grantees in the exercise of any right or remedy upon any breach by Grantor shall impair Grantees' rights or remedies or be construed as a waiver. VI. Protection of the United States of America’s Interests. 1.United States Right of Enforcement. Pursuant to 16 U.S.C. Section 3865 et seq., the United States is granted the right of enforcement that it may exercise only if the terms of this Grant are not enforced by Grantees. The Secretary of the United States Department of Agriculture (the Secretary) or his or her assigns, on behalf of the United States, may exercise this right of enforcement under any authority available under State or Federal law if the Grantees, or their successors or assigns, fail to enforce any of the terms of this Grant, as determined in the sole discretion of the Secretary. In the event the United States exercises this right of enforcement, it is entitled to recover any and all administrative and legal costs associated with any enforcement or remedial action related to the enforcement of this Grant from the Grantor, including, but not limited to, attorney’s fees and expenses related to Grantor’s violations. In the event the United States exercises this right of enforcement, and to the extent not recovered from the Grantor first, it is entitled to recover any and all administrative and legal costs associated with any enforcement of this Grant from the Grantees, including, but not limited, attorney’s fees and expenses related to Grantees’ violations or failure to enforce the Grant against the Grantor, up to the amount of the United States contribution to the purchase of the Grant. The Grantees will annually monitor compliance and provide the United States with an annual monitoring report that documents that the Grantees and Grantor are in compliance with the Grant. If the annual monitoring report is insufficient or is not provided annually, or if the United States has a reasonable and articulable belief of an unaddressed violation, as determined by the Secretary, the United States may exercise its right of inspection. For purposes of inspection and enforcement of the terms of this Grant, the HEL Conservation Plan and the United States Cooperative Agreement with the Grantees, the United States will have reasonable access to the Protected Property. Prior to its inspection of the Protected Property, the United States shall provide advance notice to Grantees and Grantor and provide Grantees and Grantor a reasonable opportunity to participate in the inspection. In the event of an emergency, the United States may enter the Protected Property to prevent, terminate, or mitigate a potential or unaddressed violation of this Grant and will give notice to Grantees and Grantor or Grantor’s representative at the earliest practicable time. 2.General Disclaimer and Grantor Warranty. The United States, its employees, agents, and assigns disclaim and will not be held responsible for Grantees’ or Grantor’s negligent acts or omissions or Grantees’ or Grantor’s breach of any representation, warranty, covenant, or agreements contained in this Grant, or violations of any Federal, State, or local laws, including all EnvironmentalDRAFTe as Ge as G hird party.hird par and circumstances of nand circumsta damage to the Protected Propedamage to the Protec but not limited to, injunctive reliefbut not limited to, injunctiv erein are in addition to, and not in erein are in addition to, and not i uity, or through administrative prouity, or through administrative pro ercise of any right or remedy uponf any right or or be construed as a waiver.ued as a w America’s Interests.merica’s Intere of Enforcementement. Pursuant to 16Pursuant to 16 of enforcement that it may exercisf enforcement that it may exercis Secretary of the United States DepSecretary of the United Sta of the United States, may exerciseof the United States, may exer State or Federal law if the GranteState or Federal law if the Grante ms of this Grant, as determined in f this Grant, as determined in vent the United States exercises thvent the United States exe tive and legal costs associated wittive and legal costs associated nt of this Grant from the Grantor, nt of this Grant from the Grantor, Grantor’s violations. In the eveGrantor’s violations. In th t recovered from the Grant recovered from the G with any enforcemwith any enforcem expenses relaexpenses rela ount of tount of t Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 10 Laws (as defined below) including, without limitation, those that give rise to liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings, actions, costs of actions, or sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorneys’ fees and attorneys’ fees on appeal) to which the United States may be subject or incur relating to the Protected Property. Grantor must indemnify and hold harmless the United States, its employees, agents, and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings, actions and costs of actions, sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorneys’ fees and attorneys’ fees on appeal) to which the United States may be subject or incur relating to the Protected Property, which may arise from, but are not limited to, Grantor’s negligent acts, omissions, or breach of any representation, warranty, covenant, agreements contained in this Grant or violations of any Federal, State, or local laws, including all Environmental Laws (defined below). 3.Environmental Warranty. As used herein, “Environmental Law” or “Environmental Laws” means any and all Federal, State, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies, or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste, hazardous materials, worker and community right-to-know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection, and similar environmental health, safety, building, and land use as may now or at any time hereafter be in effect. As used herein, “Hazardous Materials” means any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials, and any other element, compound, mixture, solution, or substance that may pose a present or potential hazard to human health or the environment. Grantor warrants that it is in compliance with, and will remain in compliance with, all applicable Environmental Laws. Grantor warrants that there are no notices by any governmental authority of any violation or alleged violation of, noncompliance or alleged noncompliance with, or any liability under, any Environmental Law relating to the operations or conditions of the Protected Property. Grantor further warrants that it has no actual knowledge of an undisclosed release or threatened release of Hazardous Materials, as such substances and wastes are defined by applicable Federal and State law. Furthermore, Grantor warrants the information disclosed to Grantees and United States regarding any past violations or noncompliance with Environmental Laws and associated remedial actions, or any past releases of Hazardous Materials and any associated remedial actions is complete and accurate. Moreover, Grantor hereby promises to hold harmless and indemnify Grantees and the United States against all litigation, claims, demands, penalties and damages, including reasonable attorneys’ fees, arising from or connected with the release or threatened release of any hazardous materials on, at, beneath or from the Protected Property, or arising from or connected with a violation of any Environmental Laws by Grantor or any other prior owner of the Protected Property. Grantor’s indemnification obligation will not be affected by any authorizations provided by Grantees or the United States to Grantor with respect to the Protected Property or any restoration activities carried out by Grantees on the Protected Property; provided, however, that Grantees will be responsible for any Hazardous Materials contributed after this date to the Protected Property by Grantees. VII. Option to Purchase at Agricultural Value. Grantees shall have an option to purchase the Protected Property at its agricultural value in accordance with the terms and provisions of this Section (“this Option”). This Option is an integral part of this Grant and constitutes a restriction and a right and interest in real property that runs with the land. This Option shall be perpetual in duration and is given on the following terms and conditions. 1.Option Trigger. Grantor shall not sell, transfer or convey the Protected Property, in whole or in part, without first offering the Protected Property for sale to Grantees pursuant to this Section; provided, however, that the following described transactions shall not trigger Grantees’ rights under this Option: a) Any mortgage, pledge, or other assignment of the Protected Property to a lender as security for indebtedness, provided the Grantees’ interest under this Option is treated asDRAFTawaw s, regulats, regul tal authority retal autho mon law) concerningmon law) co ow, hazard communicatioow, hazard comm ands and watercourses, healthands and watercourses and land use as may now or at anyand land use as may now or any petroleum, petroleum producy petroleum, petr als, corrosive materials, hazardouosive materi ely hazardous substances, toxic suely hazardous substance materials, and any other element, cmaterials, and any other elemen sent or potential hazard to human hor potential hazard to human compliance with, and will remainwith, and will remain rrants that there are no notices by rrants that there are no notices by f, noncompliance or alleged noncof, noncompliance or alleged ating to the operations or conditionating to the operations or condi tual knowledge of an undisclosed ual knowledge of an undisclosed stances and wastes are defined by ces and wastes are defined by more, Grantor warrants the informamore, Grantor warrants th tions or noncompliance with Envitions or noncompliance with E es of Hazardous Materials and anyes of Hazardous Materials and any reover, Grantor hereby promreover, Grantor hereby all litigation, claims, dall litigation, claims, nnected with thnnected with th d Propertyd Property prioprio Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 11 an interest in real estate such that in the event of foreclosure Grantees are deemed necessary parties defendant in such foreclosure case and have the right to redeem the Protected Property from the foreclosure action; and b) Any conveyance by the Grantor to Grantor’s family, as the latter term is defined in Section VII (__) below, by gift, inheritance, sale or other transfer; and c) Any conveyance of the Protected Property to a person who presently earns at least one- half of his or her annual gross income from the “business of farming,” as that term is defined in Regulation 1.175-3 issued under the Internal Revenue Code of 1986 and who, in connection with the farming operations on the Protected Property, will continue to earn at least one-half of his or her annual gross income from the “business of farming” (“a Qualified Farmer”); and d) Any lease to a Qualified Farmer or a lease having a term of 15 years or less, including renewal rights; provided, however, that any such lease shall expressly provide that, unless otherwise agreed by Grantees, the lease shall terminate and possession shall be delivered free and clear of any rights of the tenant upon a closing of the sale of the Protected Property following exercise of this Option. This Option shall apply to all other sales and conveyances of the Protected Property, including any sale or conveyance of any interest in the Protected Property including any conveyance by, or conveyance of any interest in a corporation, limited liability company, partnership or other holding entity. 2.Notice of Intent to Sell. Whenever Grantor receives an offer from a person or persons (“Buyer”) to purchase or lease for a term in excess of fifteen (15) years, including renewal rights, all or any part of the Protected Property including an offer involving property other than the Protected Property (“the Offer”), and Grantor accepts the Offer subject to this Option, Grantor shall deliver to Grantees at their principal places of business by certified mail, return receipt requested, a Notice of Intent to Sell, which notice shall include: a) A complete duplicate of the Offer, together with such other instruments as may be required to show the bona fides of the Offer; and b) A written description of the Buyer’s training and experience as an agricultural producer and an agricultural business plan for the Protected Property, including a description of the agricultural activities to be conducted or facilitated by Buyer, proposed improvements to the Protected Property, and a statement of anticipated agricultural income and expenses for the three-year period following Buyer’s acquisition of the Protected Property or, if Buyer has no such training and experience or intention of operating an agricultural business on the Protected Property, a written statement to that effect; and c) If the Buyer is purported to be a Qualified Farmer or family member, the documents necessary to establish the Buyer as such, including the Buyer’s most recent federal income tax filing, if applicable; and d) The Grantor’s current mailing address. Information delivered to Grantees pursuant to this clause shall remain confidential and shall not be released to any person or entity not a party to this Grant, without the prior consent of Grantor. 3.Exercise of Option. This Option may be exercised by Grantees as follows: a) A Grantee shall give written Notice of Intent to Exercise not more than thirty (30) days following receipt of the Notice of Intent to Sell described in Section VII(2); failure by a Grantee to provide such notice shall constitute a waiver of its rights under this Option; and b) Thereafter, Grantor and Grantee shall fix the purchase price for the Protected Property by establishing a Price Agreement in the manner described in Section VII(4), below. c) A Grantee shall exercise this Option by giving written Notice of Intent to Purchase not more than thirty (30) days following Grantor’s and Grantee’s establishment of the Price Agreement. Notices required by this Section VII(3) shall be delivered to Grantor either personally or by certified mail,DRAFTale ale otected Property, includingtected Property, y conveyance by, or conveyancy conveyance by, or co or other holding entity.or other holding entity. ntor receives an offer from a persontor receives an offer from a perso fifteen (15) years, including reneween (15) years, in er involving property other than thng property ject to this Option, Grantor shall dject to this Option, Gran mail, return receipt requested, a Nmail, return receipt requested e of the Offer, together with such er, together with such the bona fides of the Offer; andthe bona fides of the Offer escription of the Buyer’s training escription of the Buyer’s traini gricultural business plan for the Prgricultural business plan for the Pr ultural activities to be conducted oal activities to be conducted o Protected Property, and a statemeProperty, and a stateme for the three-year period followingfor the three-year period Buyer has no such training andBuyer has no such training business on the Protected Prbusiness on the Protected Pr If the Buyer is purportIf the Buyer is purp necessary to establinecessary to estab come tax filingcome tax filing antoanto Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 12 return receipt requested to the address provided by Grantor in the Notice of Intent to Sell described in Section VII(2), above. In the event that more than one Grantee exercises this Option, the Vermont Land Trust, Inc. shall have first priority, and the Vermont Housing and Conservation Board second priority. The Grantee with highest priority which exercises this Option is hereafter referred to in Sections VII(4), (5) and (6) as “Grantee.” 4.Purchase Price. The Purchase Price shall be determined by mutual agreement of Grantor and Grantee; provided that if no such agreement can be reached, the purchase price of the land only shall be the greater of: a-1) $________________ plus an inflation adjustment determined by multiplying the foregoing value by 1 (one) plus the fractional increase calculated from the date hereof in the Consumer Price Index for all Urban Consumers, Northeast, All Items published by the Bureau of Labor Statistics, U.S. Department of Labor, or a successor index published by the United States government to the date of the Offer; or a-2) The full fair market value of all Protected Property land subject to the Offer (including the site of any structures) assuming its highest and best use is commercial agricultural production commonly occurring within the market area where the Protected Property is located on the date of the Offer, as determined by a mutually approved disinterested appraiser selected by Grantor and Grantee, with the expense of such appraisal divided equally between Grantor and Grantee. Permanently installed land improvements, such as in-ground irrigation systems, farm roads, and drainage tiling shall be considered part of the land. This appraisal shall take into consideration the permitted and restricted uses set forth in, and the impact on value caused by the Grant. With respect to any agricultural, forestry or minor incidental structures and improvements in existence as of the date of the Offer, then in addition to the foregoing land value, the Purchase Price shall also include: b) The value of all such structures and improvements on the Protected Property as of the date of the Offer excluding all land (which is included in the Section VII(4)(a) valuation, above). The value of the structures and improvements shall be determined using the replacement cost approach to valuation (i.e., the cost to replace the structures and improvements with those of comparable size and utility, less depreciation and functional obsolescence) by a mutually approved disinterested appraiser selected by Grantor and Grantee, with the expense of such appraisal divided equally between Grantor and Grantee. With respect to any residence(s) in existence as of the date of the Offer, then in addition to the foregoing land value, the Purchase Price shall also include: c) The value of the residence and its appurtenant structures and improvements as of the date of the Offer excluding the value of the land upon which these structures sit (which is included in the Section VII(4)(a) valuation, above). The value of the residence and appurtenant structures and improvements shall be determined using the replacement cost approach to valuation (i.e., the cost to replace the residence, structures and improvements with those of comparable size and utility, less depreciation and functional obsolescence) by a mutually approved disinterested appraiser selected by Grantor and Grantee, with the expense of such appraisal divided equally between Grantor and Grantee. Grantor and Grantee shall establish the Purchase Price by either entering into a written agreement fixing the Purchase Price as provided in this Section VII(4), within ten working days of reaching mutual agreement or, if no such agreement is reached, the Purchase Price shall be based upon the appraised values which shall be the Purchase Price unless another Purchase Price is mutually agreed upon in writing by the parties within ten working days after the last party’s receipt of the appraisals. The passage of said ten working days shall constitute the effective date of establishing the Purchase Price. (“Price Agreement”) 5.Entry onto the Protected Property. After receiving the notice from Grantor described in Section VII(2), above, and upon reasonable notice to the Grantor, the Grantee shall have the right to enter upon the Protected Property from time to time for the purpose of preparing for the purchase and disposition of the Protected Property, including but not limited, to preparing appraisals, conducting soils tests or engineering studies, advertising, showing prospective buyers or assignees, or obtaining other information about the Protected Property. Grantee’s entry onto or testing of the Protected Property shall be conducted in a manner that minimizes any disturbance to the land and to the use and enjoyment of the Protected Property by the Grantor or any tenants in possession.DRAFTomom re the Prore the P ally approved dally appr pense of such appraipense of su installed land improvemeinstalled land im inage tiling shall be considered inage tiling shall be co ration the permitted and restrictedration the permitted and rest the Grant.the Gra idental structures and improvemenntal structures and going land value, the Purchase Prid value, the res and improvements on the Protees and improvements on the P g all land (which is included in thel land (which is included in th he structures and improvements shtures and improvements sh proach to valuation (i.e., the cost tluation (i.e., the cost t th those of comparable size and utth those of comparable size by a mutually approved disinteresby a mutually approved dis th the expense of such appraisal dth the expense of such appraisa residence(s) in existence as of the(s) in existence as of the urchase Price shall also include:urchase Price shall also i The value of the residence aThe value of the residence a of the Offer excluding theof the Offer excluding the included in the Sectionincluded in the Sec appurtenant structurappurtenant structu pproach to valupproach to valu those of those of utuautua Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 13 6.Closing of the Purchase. If this Option is exercised, the parties shall close on the sale on or before thirty (30) days from the delivery of the Notice of Intent to Purchase described in Section VII(3)(c), above, unless otherwise agreed. The following conditions shall apply to said closing: a) Grantor shall, by Vermont Warranty Deed, deliver good, clear, record and marketable title to the Grantee, free of all liens or other encumbrances (including discharge or release of outstanding mortgages), sufficient for the Grantee to secure title insurance at Grantee’s sole expense. Grantee agrees to accept title subject to: (i) customary utility distribution easements, (ii) rights of the public to use roads laid out by municipalities, the state or federal government, (iii) rights of way and other easements that do not, in the Grantee’s opinion, materially impair beneficial use of the Protected Property; and, (iv) the terms and conditions of this Grant. The state of title to the Protected Property shall be determined by a title examination paid for by the Grantee. b) Grantor agrees to use reasonable efforts to deliver marketable title as set forth in Section VII(6)(a), above. In the event Grantor is unable to give marketable title, then the Grantee may elect to terminate its exercise of this Option. The Grantee shall have the right to elect to accept such title as Grantor can deliver and to pay the purchase price without reduction. c) Grantor agrees to obtain at Grantor’s sole expense any and all permits and approvals required under law or regulation for the conveyance of the Protected Property to Grantee under this Option. The parties shall extend the closing date as necessary to enable Grantor to obtain all such final permits and approvals. d) Grantor represents to Grantee that Grantor is not aware of any hazardous waste having been dumped or placed upon the Protected Property. Grantor will update this representation in writing upon the Grantee’s delivery of the Notice of Intent to Exercise described in Section VII(3)(a), above. Grantor agrees that the Grantee may, at the Grantee’s expense, perform any and all tests and/or inspections necessary to confirm these representations. In the event that the Grantee discovers that hazardous wastes have been dumped or placed upon the Protected Property, the Grantee may at the Grantee’s option declare its exercise of this Option to be null and void. e) The Grantor and the Grantee shall prorate property taxes as of the date of closing. f) The Grantor shall not physically alter the Protected Property or the improvements on the Protected Property or enter into any lease after a Grantee delivers the Notice of Intent to Exercise provided in Section VII(3)(a), above, and while the Grantee may purchase pursuant thereto, except to perform generally accepted agricultural practices and normal repairs. In the event any structure is substantially destroyed by fire or other casualty, Grantee may elect to (1) proceed to closing and accept the proceeds of any insurance policy Grantor may have with respect to such destruction; or (2) if such insurance proceeds are less than the value of the structure as determined under Section VII(4), above, proceed to closing and accept the proceeds of said insurance policy and reduce the purchase price by the difference between such value and insurance proceeds; or (3) withdraw its election to exercise this Option. g) The Protected Property shall be conveyed free of all leases, tenancies, tenants and occupants, unless Grantee otherwise agrees in writing. h) All personal property, livestock, machinery and equipment not included in the sale shall be removed from the Protected Property, and all other waste and debris shall be removed from the Protected Property prior to closing. Grantor and Grantee will jointly inspect the Protected Property 24 hours prior to closing. i) After closing, this Option shall remain in full force and effect with respect to all subsequent conveyances of the Protected Property, except as identified in Section VII(1), above. 7.Partial Release of Option. At the request of Grantor, Grantees shall execute a partial release of their rights under this Option Agreement (”the Partial Release”), and upon the first to occur of the following events, the Grantees shall immediately deliver the Partial Release to the South Burlington Town Clerk for recording in the South Burlington Land Records. a) Grantees’ failure to deliver the Notice of Intent to Exercise as described in Section VII(3)(a), above;DRAFTurcurc and all permits and aand all perm of the Protected Property of the Protected osing date as necessary to enabosing date as necessary provals.provals. or is not aware of any hazardous wor is not aware of any hazardous w ected Property. Grantor will updaed Property. Gran Grantee’s delivery of the Notice os delivery of above. Grantor agrees that the Grabove. Grantor agrees th any and all tests and/or inspectionsny and all tests and/or inspec he event that the Grantee discoverevent that the Grantee discove upon the Protected Property, the he Protected Property, the ercise of this Option to be null ands Option to be null and nd the Grantee shall prorate propend the Grantee shall prorate ntor shall not physically alter the Pntor shall not physically alter the P cted Property or enter into any leaProperty or enter into any lea ercise provided in Section VII(3)(vided in Section VII(3)( pursuant thereto, except to performpursuant thereto, except repairs. In the event any structrepairs. In the event any str Grantee may elect to (1) proGrantee may elect to (1) pro policy Grantor may have policy Grantor may have proceeds are less than proceeds are less th above, proceed to cabove, proceed to urchase price byurchase price b draw its edraw its e Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 14 b) Grantees’ failure to deliver the Notice of Intent to Purchase as described in Section VII(3)(c), above; or c) Grantees’ election to terminate its exercise of this Option based on title defects as provided in Section VII(6)(b), hazardous materials as provided in Section VII(6)(d), or destruction of structures as provided in Section VII(6)(f). Should no Grantee exercise this Option as provided in Section __(3), above, or should a Grantee fail to close following its delivery of the Notice of Intent to Purchase, Grantor may proceed to close on the sale to the Buyer on the terms and conditions described in the Notice of Intent to Sell, within twelve (12) months of the delivery of said Notice to Grantees. Provided, however, this Option shall remain in full force and effect with respect to all subsequent conveyances of the Protected Property, except as identified in Section VII(1) above. 8.Partial Assignment by Grantees. A Grantee may partially assign its rights under this Option, provided: a) No such assignment shall be made prior to Grantor and Grantee establishing the Price Agreement described in Section VII(4), above; b) Such assignment shall be in writing, with the assignee undertaking to discharge all obligations of Grantee with respect to purchase of the Protected Property, and a copy of the written assignment shall be delivered to Grantor; c) The assignee shall be a party which, in the reasonable opinion of the Grantee, will use or will facilitate the use of the Protected Property for commercial agricultural production; and d) The partial assignment shall pertain only to a single exercise of this Option in response to a discrete Notice of Intent to Sell delivered to Grantees. While no consent of Grantor shall be required for said single exercise, no Grantee shall otherwise assign all of its rights and interests under this Option without the prior written consent of Grantor. VIII. General Provisions. 1. Where Grantor is required, as a result of this Grant, to obtain the prior written approval of Grantees before commencing an activity or act, and where Grantees have designated in writing another organization or entity which shall have the authority to grant such approval, the approval of said designee shall be deemed to be the approval of Grantees. Grantor shall reimburse Grantees or Grantees' designee for all extraordinary costs, including staff time, incurred in reviewing the proposed action requiring Grantees' approval; but not to include those costs which are expected and routine in scope. Upon the request of Grantor, Grantees shall deliver to Grantor, in written recordable form, any approval, disapproval, election, or waiver given by Grantees pursuant to this Grant. 2. Nothing in this Grant exempts the Grantor from following all applicable local, state and Federal ordinances, statutes, and regulations, including Federal drug laws. It is the Grantor’s sole responsibility to identify and follow each regulation, at Grantor’s sole expense. 3. It is further agreed that the Protected Property is accurately depicted and described in both the Hickory Hillside, LLC- Parcel C Conservation Plan and a Baseline Documentation Report (“BDR”) signed by the original Grantor on or about the date of this Grant and held by Grantee VLT, on behalf of all Grantees. Grantees may use the Hickory Hillside, LLC- Parcel C Conservation Plan or BDR in enforcing this Grant, but are not limited in their use of the Hickory Hillside, LLC- Parcel C Conservation Plan and BDR to show a change of conditions. 4. Grantees shall transfer the development rights, option to purchase, and conservation easement and restrictions conveyed by Grantor herein only to a State agency, municipality, or qualified organization, as defined in Chapter 34 or Chapter 155 Title 10 V.S.A., in accordance with the laws of the State of Vermont and the regulations established by the Internal Revenue Service governing such transfers. 5. Extinguishment, Termination and Condemnation. a) Grant Requirements. This Grant constitutes a real property interest immediately vested in the Grantees. This Grant may be extinguished or terminated in whole or in part only in accordanceDRAFTtee estabtee esta ee undertaking to dischargee undertaking to f the Protected Property, and a cf the Protected Propert rantor;rantor; he reasonable opinion of the Granhe reasonable opinion of the Gran Property for commercial agricultuoperty for comme pertain only to a single exercise ofpertain only to a single exerci to Sell delivered to Grantees. WhSell delivered to Grantees. W id single exercise, no Grantee shale exercise, no Grantee shal under this Option without the priorption without the prior rantor is required, as a result of thrantor is required, as a result of th mencing an activity or act, and wheing an activity or act, and whe ty which shall have the authority tshall have the authority t to be the approval of Grantees. Gto be the approval of Gra dinary costs, including staff time, dinary costs, including staff tim pproval; but not to include those cpproval; but not to include those c f Grantor, Grantees shall deliver f Grantor, Grantees shall deliver election, or waiver given belection, or waiver giv othing in this Gothing in this G tatutes, atatutes, a yanyan Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 15 with the laws of the State of Vermont and, as applicable, the Internal Revenue Code, as amended, and the regulations promulgated thereunder. In addition, the interests and rights under this Grant may only be extinguished or terminated with the written approval of the Grantees and the United States. Due to the Federal interest in this Grant, the United States must review and approve any proposed extinguishment, termination, or condemnation action that may affect its Federal interest in the Protected Property. With respect to a proposed extinguishment, termination, or condemnation action Grantees and the United States stipulate that the fair market value the Grant is _______ percent (____%), hereinafter the “Proportionate Share,” of the fair market value of the land unencumbered by this Grant. The Proportionate Share has been determined at the time of conveyance of this Grant by dividing the fair market value of this Grant ($______) by the fair market value of the Property without this Grant ($________). The Proportionate Share will remain constant over time. If this Grant is extinguished, terminated, or condemned, in whole or in part, then the Grantor must reimburse Grantees and the United States an amount equal to the Proportionate Share of the fair market value of the land unencumbered by this Grant. The fair market value will be determined at the time all or part of this Grant is terminated, extinguished, or condemned by an appraisal that meets the Uniform Standards of Professional Appraisal Practice (USPAP) or Uniform Acquisition Standards or Federal Land Acquisition (UASFLA). The appraisal must be completed by a certified general appraiser and be approved by the Grantee and the United States. Unless otherwise provided in Subparagraph 5 (b) below, the allocation of the Proportionate Share between the Grantees and the United States must be as follows: (a) to the Grantees or their designee(s), fifty percent (50%) of the Proportionate Share; and, (b) to the United States fifty percent (50%) of the Proportionate Share. Until such time as the Grantees and the United States receive the Proportionate Share from the Grantor or the Grantor’s successor or assign, the Grantees and the United States each have a lien against the Protected Property for the amount of the Proportionate Share due each of them. The Grantees or their designee(s) must use their allocation of the Proportionate Share in a manner consistent with the conservation purposes of the Grant. If proceeds from termination, extinguishment, or condemnation are paid directly to Grantees, as required by Subparagraph 5(b) below, or to the United States, each party agrees to reimburse the other parties up to the amount of the allocation of Proportionate Share to which they are entitled, as set forth in this Subparagraph 5(a), unless the federal Treasury Regulations require otherwise. If Grantees receive more than their Proportionate Share as set forth in this Subparagraph 5(a) because of the Treasury Regulation requirements of Subparagraph 5(b) below, Grantees must obtain the United States’ written approval of their use of such additional funds to achieve conservation purposes that are consistent with the Purposes of this Grant. b) For Purposes of a Federal Income Tax Deduction. As provided for in Section 1.170A- 14(g)(6)(i) of the Treasury Regulations, if a subsequent unexpected change in the conditions surrounding the Protected Property arise in the future which makes impossible or impractical the continued use of the Protected Property for the conservation purposes set forth herein, this Grant may be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. For the purposes of Grantor’s claim of a federal income tax deduction under Internal Revenue Code Section 170(h) and associated Treasury Regulations, the fair market value of the Grant at the time of condemnation, termination or extinguishment shall be determined by multiplying (i) the fair market value of the Protected Property unencumbered by the Grant at the time of termination by (ii) the ratio of the value of the Grant at the time of this Grant to the value of the Protected Property without deduction for the value of the Grant at the time of the Grant. The ratio referred to in the preceding sentence shall be established by a qualified appraisal for federal income, gift and estate tax deduction purposes, pursuant to Treasury Regulation §1.170A-13 and §1.170A-14(h), and the ratio shall remain constant. Pursuant to Treasury Regulation 1.170A-14(g)(6)(ii), after termination of this Grant, in whole or in part, on a subsequent sale, exchange or involuntary conversion of the Protected Property, Grantees must be entitled to a portion of the proceeds that is at least equal to the proportionate value of the Grant as established by this Subparagraph 5(b). All of Grantees’ proceeds, as determined above, must be used by the Grantees in a manner consistent with the conservation purposes of this Grant. 6. In any deed or lease conveying an interest in all or part of the Protected Property, Grantor shall make reference to the conservation easement, restrictions, and obligations described herein and shall indicate that said easement and restrictions are binding upon all successors in interest in the Protected Property in perpetuity. Grantor shall also notify Grantees of the name(s) and address(es) of Grantor's successor(s) in interest. 7. While title is herein conveyed to Grantees as tenants in common, the rights and interests described in this Grant, including enforcement of the conservation easement and restrictions, may beDRAFTn Stann Stan neral appraisneral app he allocation of the Proportionhe allocation of the P (a) to the Grantees or their design(a) to the Grantees or thei e United States fifty percent (50%e United States fifty percent (50 the United States receive the Propthe United States receive the Prop ssign, the Grantees and the Unitedign, the Grantees a of the Proportionate Share due eaProportionate ation of the Proportionate Share inroportion f proceeds from termination, extinf proceeds from termination, , as required by Subparagraph 5(bs required by Subparagraph 5( he other parties up to the amount or parties up to the amount o et forth in this Subparagraph 5(a), his Subparagraph 5(a), Grantees receive more than their PGrantees receive more than their P he Treasury Regulation requiremehe Treasury Regulation req nited States’ written approval of thnited States’ written approval o at are consistent with the Purposesat are consistent with the Purposes r Purposes of a Federal Income Taof a Federal Income Ta DRe Treasury Regulations, if a subsee Treasury Regulations, i Property arise in the future whichProperty arise in the future wh Property for the conservation purpProperty for the conservation purp hed, whether in whole or in parthed, whether in whole or i oses of Grantor’s claim ofoses of Grantor’s claim and associated Treaand associated Trea mination or exmination or ex erty uneerty une titi Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 16 exercised by Grantees collectively, or by any single Grantee individually; provided, however, that court enforcement action by a single Grantee shall foreclose action on the same issue(s) by the other Grantees who shall be bound by the final determination. 8. The term “Grantor” includes the heirs, executors, administrators, successors, and assigns of the original Grantor Hickory Hillside, LLC. The term “Grantees” includes the respective successors and assigns of the original Grantees, VLT and VHCB. The term “family” includes: (a) any spouse of Grantor and any persons related to Grantor by blood to the 4th degree of kinship or by adoption, together with spouses of family members, (b) a corporation, partnership or other entity which is wholly owned and controlled by Grantor or Grantor's family (as defined herein), (c) any estate of Grantor or Grantor’s family, and (d) all owners of a Grantor corporation, partnership, trust or other entity who are related to each other by blood to the 4th degree of kinship or by adoption, together with spouses of family members. 9. Grantor shall pay all real estate taxes and assessments on the Protected Property and shall pay all other taxes, if any, assessed in lieu of or in substitution for real estate taxes on the Protected Property. 10. Grantor shall indemnify and hold harmless Grantees, their employees, agents, and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings, actions, costs of actions, or sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorneys’ fees and attorneys’ fees on appeal) to which Grantees may be subject or incur relating to the Protected Property, which may arise from, but are not limited to, Grantor’s negligent acts or omissions or Grantor’s breach of any representation, warranty, covenant, or agreements contained in this Grant, or violations of any Federal, State, or local laws, including all Environmental Laws (as defined below). 11. If any Grantee takes legal title to Grantor’s interest in the Protected Property, the Grantee acquiring title shall commit the monitoring and enforcement of the Grant to another Grantee until the Grantee acquiring title conveys title to a successor Grantor. 12. This Grant is created pursuant to Chapter 34 of Title 10, Conservation and Preservation Rights and Interests (10 V.S.A. 821-823) and Chapter 155 of Title 10, Acquisition of Interests in Land by Public Agencies (10 V.S.A. 6301 – 6309), and this Grant shall be governed by and construed in accordance with the laws of the State of Vermont to effectuate the Purposes of the Grant. In the event that any provision or clause in this Grant conflicts with applicable law, such conflict shall not affect other provisions hereof which can be given effect without the conflicting provision. To this end the provisions of this Grant are declared to be severable. 13. Amendment. This Grant may be amended only if, in the sole and exclusive judgment of the Grantees and United States, by and through the Chief of NRCS, such amendment is consistent with the Purposes of this Grant and complies with all applicable laws and regulations. The Grantees must provide timely written notice to the Chief of NRCS of any proposed amendments. Prior to the signing and recordation of the amended Grant, such amendment(s) must be mutually agreed upon by the Grantees, Grantor, and United States, by and through the Chief of NRCS. Any purported amendment that is recorded without the prior approval of the United States is null and void. Notwithstanding the foregoing, Grantor and Grantees have no right or power to agree to any amendment that would limit the term of the Grant, or adversely affect the qualification of this Grant or the status of Grantees under applicable laws, including without limitation Title 10 V.S.A. Chapters 34 and 155, Section 170(h) and 501(c)(3) of the Internal Revenue Code, as amended, and regulations issued pursuant thereto. INVALIDATION of any provision hereof shall not affect any other provision of this Grant. TO HAVE AND TO HOLD said granted development rights, option to purchase, and a perpetual conservation easement and restrictions, with all the privileges and appurtenances thereof, to the said Grantees,VERMONT LAND TRUST, INC., and VERMONT HOUSING AND CONSERVATION BOARD, their respective successors and assigns, and the UNITED STATES and its assigns to the extent of its enforcement rights, to their own use and behoof forever, and the said Grantor, HICKORY HILLSIDE, LLC for Grantor’s self and Grantor’s successors, and assigns, does covenant with the said Grantees and the UNITED STATES, their successors and assigns, that until the ensealing of these presents, Grantor is the sole owners of the premises, and Grantor has good right and title to convey the same in the manner aforesaid, that the premises are free from every encumbrance, except those of record, not intending hereby to reinstate any interest or right terminated or superseded by this Grant, operation of law, abandonment or 27 V.S.A. Ch. 5, Subch. 7; and Grantor hereby engages to warrant and defend the same against all lawful claims whatever, except as aforesaid.DRAFTployeeployee s, fees, penas, fees, p alf of any person oalf of any d including, without limd including, w ppeal) to which Grantees mayppeal) to which Gran rise from, but are not limited to, Grise from, but are not limit entation, warranty, covenant, or aentation, warranty, covenant, or , or local laws, including all Envir, or local laws, including all Envir Grantor’s interest in the Protecteterest in t d enforcement of the Grant to anod enforcement of the Grant t ccessor Grantor.essor Grantor. pursuant to Chapter 34 of Title 1o Chapter 34 of Title 1 1-823) and Chapter 155 of Title 11-823) and Chapter 155 of Title 1 01 – 6309), and this Grant shall be01 – 6309), and this Grant the State of Vermont to effectuatethe State of Vermont to effect use in this Grant conflicts with appse in this Grant conflicts with app ch can be given effect without the an be given effect without the clared to be severable.be severable Amendment. This Grant may bAmendment. This Grant ma es and United States, by and throues and United States, by and throu ses of this Grant and complies wses of this Grant and com ly written notice to the Chly written notice to the he amended Grant, she amended Grant, d States, by ad States, by a prior appprior app veve Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 17 I herein set my hands at ____________, Vermont this ____ day of ____________, 2020. GRANTOR ______________________________ (Name) STATE OF _______________ _____________ COUNTY, ss. At __________________, this ____ day of _____________, 2020, _________________ personally appeared and __________________________ acknowledged this instrument, by __________________________ sealed and subscribed, to be _______________________’s free act and deed, before me. Before me, ______________________________ Print Name - __________________________ Notary Public, State of Vermont Credential #_______________________ My Commission Expires: January 31, 2021 ______________ ______________ ______________ nuary 31, 2021nuary 31 Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 18 VERMONT LAND TRUST, INC. ACCEPTANCE The Vermont Land Trust, Inc. hereby acknowledges, approves, and accepts, the foregoing Grant and the rights and obligations conveyed therein. ______________________ By:________________________________ Date Its Duly Authorized Agent STATE OF VERMONT COUNTY OF , SS. At _____________________, Vermont on this _____ day of _______, 20__, personally appeared ___________, duly authorized agent of the Vermont Land Trust, Inc., and he/she acknowledged this instrument, by him/her sealed and subscribed, to be his/her free act and deed and the free act and deed of the Vermont Land Trust, Inc., before me. Before me, ______________________________ Print Name - __________________________ Notary Public, State of Vermont Credential #_______________________ My Commission Expires: January 31, 2021 VERMONT HOUSING AND CONSERVATION BOARD ACCEPTANCE The Vermont Housing and Conservation Board hereby acknowledges, approves, and accepts, the foregoing Grant and the rights and obligations conveyed therein. ______________________ By:________________________________ Date Its Duly Authorized Agent STATE OF VERMONT COUNTY OF WASHINGTON, SS. At Montpelier, Vermont on this _____ day of _______, 20__, personally appeared ___________, duly authorized agent of the Vermont Housing and Conservation Board, and he/she acknowledged this instrument, by him/her sealed and subscribed, to be his/her free act and deed and the free act and deed of the Vermont Housing and Conservation Board, before me. Before me, ______________________________ Print Name - Elizabeth M. Egan Notary Public, State of Vermont Credential #157.0002746 My Commission Expires: January 31, 2021DRAFT ____ ____ ______ 31, 202131, 2021 RD ACCEPTANCERD ACCEPTA by acknowledges, approves, and anowledges, ap nveyed therein.in. By:_________________By:_________________ Its Duly Authorized AIts Duly Authorized A GTON, SS.GTON ier, Vermont on this _____ day ofmont on this _____ day of agent of theagent of the Vermont Housing anVermont H y him/her sealed and subscribed, toy him/her sealed and subscribe nt Housing and Conservation Boant Housing and Conservation Boa BeforeBe PrinPr Hickory Hillside, LLC – Auclair Parcel C Conservation Restrictions Parcel ID # ___ Page 19 =============================================== SCHEDULE A PROTECTED PROPERTY Being all and the same lands and premises, with any and all structures and improvements that may be situated thereon, conveyed to Grantor by warranty deed of _____________________, dated ________________, and recorded in Book _______, Page _________ of the _____________ Land Records. Meaning and intending to include in this description of the Protected Property all of the land with the buildings and improvements thereon lying on both sides of Town Highway #__ (also known as ___________), in the Town of South Burlington, Vermont,except as excluded above, and generally described as containing 67 acres, more or less. NOTICE:Unless otherwise expressly indicated, the descriptions in this Schedule A and in any subsequent Schedules are not based on a survey or subdivision plat. The Grantor and Grantees have used their best efforts to depict the approximate boundaries of the Protected Property and any excluded parcels, complexes or ecological protection zones on a plan entitled “Vermont Land Trust - Hickory Hillside, LLC- Parcel C Farm, Town of South Burlington, Chittenden County , VT, ____________ 20__” signed by the Grantor and VLT (referred to throughout this Grant and its Schedules as “ Hickory Hillside, LLC- Parcel C Conservation Plan”). The Hickory Hillside, LLC- Parcel C Conservation Plan is based upon Vermont Base Map digital orthophotos and other information available to VLT at the time of the Plan’s preparation. Any metes and bounds descriptions included in the Schedules herein are approximate only. They are computer generated and are not the result of field measurements or extensive title research. The Hickory Hillside, LLC- Parcel C Conservation Plan and any metes and bounds descriptions herein are intended solely for the use of the Grantor and Grantees in establishing the approximate location of the areas described and for administering and interpreting the terms and conditions of this Grant. No monuments have been placed on the ground. The Hickory Hillside, LLC- Parcel C Conservation Plan is kept by VLT in its Stewardship Office.The Hickory Hillside, LLC- Parcel C Conservation Plan is not a survey and must not be used as a survey or for any conveyance or subdivision of the land depicted thereon. Grantor and Grantees do not intend to imply any limitation on the area of land included in this description, should a survey determine that additional land is also encumbered by the Grant. If, in the future, the Grantor or Grantees shall prepare a survey of the Protected Property, of any portion thereof, or of any excluded lands, and that survey is accepted by the other party or confirmed by a court, the descriptions in the survey shall control. Reference may be made to the above described deed and record, and to the deeds and records referred to therein, in further aid of this description. ========================================== SCHEDULE B FARMSTEAD COMPLEX The "Farmstead Complex" referred to in Section III() of this Grant contains ___ acres, more or less, and is more particularly described as follows, all bearings are referenced to "Grid North:" [Metes and bounds description drawn from "Conservation Plan"] ==========================================DRAFTd Proped Prope rmont Lanrmont County , VT, ______County , V nd its Schedules as “ Hickod its Schedules a Parcel C Conservation Plan is baParcel C Conservation P n available to VLT at the time ofn available to VLT at the tim d in the Schedules herein are apprd in the Schedules herein are appr ield measurements or extensive titeld measurements o n and any metes and bounds desany metes an ntees in establishing the approximblishing th ing the terms and conditions of thing the terms and condition kory Hillside, LLC- Parcel C Consy Hillside, LLC- Parcel C Con y Hillside, LLC- Parcel C Conserde, LLC- Parcel C Conser r any conveyance or subdivisionyance or subdivision ntend to imply any limitation on thntend to imply any limitatio hat additional land is also encumbhat additional land is also encum re a survey of the Protected Propa survey of the Protected Prop y is accepted by the other party orepted by the other party or may be made to the above describmay be made to the above describ n further aid of this description.n further aid of this descri ============= Shelb u r n e S. Burl i n g t o n Parcel C67 acres WillistonRiparian buffer1 acre5 AcreComplex 9 AcreEcologi c a l Z o n e QR116 CHEE S E F A C T O R Y R D I0 180 360 540 72090Feet 1:4,000Scale: EXHIBIT A 9-11-20 Hickory Hillside, LLC Orthophoto Map South Burlington, VT Vermont Land Trust Farm Complex Subject Property Proposed public access trail Ecological Protection Zone Fitzgerald Environmental Associates, LLC. Applied Watershed Science & Ecology 18 Severance Green · Suite 203 · Colchester · Vermont · 05446 Tel. 802.876.7778 · www.fitzgeraldenvironmental.com MEMORANDUM To:Nick Smith, Lamoureux & Dickinson From:Joe Bartlett, CFM Re:Wetlands Assessment for Hickory Hillside Subdivision, South Burlington Date:January 12, 2021 Fitzgerald Environmental Associates LLC (FEA) is assisting Lamoureux & Dickinson to evaluate the potential presence of jurisdictional wetlands on the agricultural parcel proposed for development of the 3 lot Hickory Hillside subdivision. The parcel is located south of Cheesefactory Road and west of our Route 116 in South Burlington. FEA completed an initial wetland review of the property in November 2019, primarily to map wetlands along the western and southern side of the parcel for a potential easement to access the proposed Ewing Farm subdivision to the south. A class III wetland was delineated in this portion of the parcel and was confirmed with Tina Heath (VTDEC Wetland Scientist). FEA completed a preliminary review of wetlands for the proposed Hickory Hillside subdivision in 2019, however the site was not visited with VTDEC. FEA conducted a desktop GIS review of the property using aerial photography, LiDAR contours, NRCS soil survey data, the Vermont Significant Wetlands Inventory (VSWI), and the Vermont Hydrography Dataset (VHD). The site has a varied terrain with scattered rocky outcrops, but generally drains south with a moderate slope. All underlying soils are mapped as hydrogroup D with a narrow band of hydric soil (Covington silty clay) along Cheesefactory Road and along the southern parcel boundary. Muddy Brook is located at the southeast corner of the property. An intermittent stream flows through the western portion of the parcel, draining to a large wet meadow complex that flows east to Muddy Brook and south to Shelburne Pond. The VSWI includes a Class II wetland closely following Muddy Brook and the wetland advisory layer has additional areas extending up the slope from Muddy Brook and along Cheesefactory Road near the intermittent channel. FEA completed a follow up wetland delineation site visit on 12/30/2020 (no snow cover). Vegetation was difficult to identify/classify due to winter conditions and recent grazing (See picture on the page 3). The wetland delineation was primarily based on hydric soil indicators and site topography following the U.S. Army Corps of Engineers methodology using the "Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Northcentral and Northeast Region." It is important to note that these delineations were completed outside of the growing season. Larger wetland areas were identified along the western edge of the property (confirmed with Tina Heath in 2019) and along the southern edge of the property. The northern boundary of the wetland complex to the south of the subdivision was flagged and mapped during the 12/30/2020 site visit. This wetland is more than 300 feet south and more than 30 feet lower elevation than the proposed disturbance for the subdivision. Hickory Hillside Subdivision, South Burlington, VT 2 Wetlands Assessment January 12, 2021 Fitzgerald Environmental A small wetland (0.3 acres) was identified near the proposed curb cut for the Hickory Hillside subdivision. This boundary was flagged and mapped during site survey. This wetland starts at the toe of the road embankment and has no connection for surface drainage to the pasture areas north of the road. Hydric soil indicators end at the southern tip of the wetland where the slope increases. There is no apparent connection to the larger Class II wetland to the south. The wetland does not meet any of the criteria for significance as described in Section 5 of the 2020 Vermont Wetland Rule: 5.1 Water Storage for Flood Water and Storm Runoff:This wetland is over 50’ higher in elevation than the floodplain associated with Muddy Brook. In addition, the existing topography and the unconstricted outlet do not lend to storage of flood waters or stormwater runoff. No evidence of seasonal flooding or ponding was noted. 5.2 Surface and Ground Water Protection:While this wetland may provide some treatment to runoff from adjacent uplands and roadway as it travels through the existing vegetation the minimal impact proposed due to the new access road does not significantly reduce this function. This wetland is currently used for rotational grazing which has likely limited the function of this wetland to provide surface water treatment. 5.3 Fish Habitat:No open water. 5.4 Wildlife Habitat:The current use of the wetland is rotational grazing, with limited habitat diversity. 5.5 Exemplary Wetland Natural Community: This wetland is not hydrologically connected to the wet clayplain forest (significant natural community) mapped to the northwest. 5.6 Rare, Threatened and Endangered Species:No RTE species are mapped within the area of the subject wetland. 5.7 Education and Research in Natural Sciences:Not applicable. 5.8 Recreational Value and Economic Benefits:Not applicable. 5.9 Open Space and Aesthetics:While the wetland is visible from Cheesefactory Road and the new proposed access drive, it appears more as a field than a wetland. Larger and more significant wetlands are located elsewhere on the parcel and will not be disturbed through this project. 5.10 Erosion Control through Binding and Stabilizing the Soil: No erosion forces were identified; the upland contributing area is extremely limited. Based on the size and the lack of connection to adjacent wetlands we presume that the subject wetland is Class III, and therefore not considered jurisdictional for VTDEC. The wetland boundary should be confirmed during the growing season and verified with VTDEC. This wetland is currently hayed. The shared access road for the proposed Hickory Hillside subdivision will cross the wetland at the narrowest point adjacent to the rock outcrop, minimizing wetland impact to approximately 800 square feet. All other proposed subdivision construction activities will be outside of the presumed Class III wetland. No impacts are proposed within 250’ of the Class II wetlands or buffers on the parcel. Hickory Hillside Subdivision, South Burlington, VT 3 Wetlands Assessment January 12, 2021 Fitzgerald Environmental Center of presumed Class III wetland looking north towards Cheesefactory Road LIKENESS ONLY - 1-story front elevation, maximum buildingheight of 28' measured from average ground elevation aroundbuilding foundation. LIKENESS ONLY - 1-story front elevation, 2-storyrear elevation, maximum building height of 28'measured from average ground elevation aroundbuilding foundation. Hickory Hillside, LLC January 2021 Landscape Estimate of Probable Cost Yard & Foundation Plantings Size Unit Cost*Quantity Subtotal Deciduous shrubs #3 $50 20 $1,000 Evergreen shrubs #3 $50 12 $600 Deciduous trees 2 1/2" - 3" Cal $600 5 $3,000 Evergreen trees 4'-6' height $200 0 $0 $4,600 3 dwelling units x $4,600 / unit =$13,800 Proposed construction costs 3 SF homes @ $200,000 $600,000 TOTAL $600,000 Required Landscaping Value $ 250,000 @ 3% $7,500 $ 250,000 @ 2% $5,000 $ 100,000 @ 1% $1,000 TOTAL $13,500 Item Foundation Plantings Total cost per dwelling unit: Yard Plantings - 1 - SHARED ROAD MAINTENANCE AGREEMENT AND STORMWATER MAINTENANCE AGREEMENT THIS SHARED ROAD MAINTENANCE AGREEMENT AND STORMWATER MAINTENANCE AGREEMENT concerns land owned by HICKORY HILLSIDE, LLC (hereinafter referred to as “OWNER”) located in the City of South Burlington, County of Chittenden, and State of Vermont, and shall subject said lands and be a benefit for said lands, and to the successors and/or assigns of said lands or portions thereof. W I T N E S S E T H: WHEREAS, OWNER owns certain property located off Cheesefactory Road in the City of South Burlington, Vermont and being further described as: Being all and the same lands and premises, conveyed to Hickory Hillside, LLC dated October 9, 2018 and recorded in Volume 1442 at Page 44-45 of the Land Records of the City of South Burlington. WHEREAS, OWNER has subdivided the property into three (3) individual building lots and has or will construct individual dwellings on said lots as depicted on the survey referenced below; WHEREAS, each of the three lots will utilize a twenty-foot (20’) wide shared private roadway (hereinafter referred to as the “private roadway”) described below for ingress and egress to their respective properties and OWNER seeks to establish the rights and obligations regarding the shared maintenance and upkeep of the private roadway; WHEREAS, all users of said private roadway shall be subject to and have the benefit of this Agreement regarding maintenance, repair, and upkeep of the private roadway running from Cheesefactory Road, to the individual lots as depicted on the survey referenced below; AND, WHEREAS, each of the three lots will be subject to and have the benefit of this Agreement regarding maintenance, repair, and upkeep of the stormwater system. NOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration the parties hereto agree as follows:DRAFTgns of saidgns of sa E T H:E T H: property located off Cheesefactproperty located off Cheesefact nd being further described as:further des nds and premises, conveyed tonds and premises, convey and recorded in Volume 1442 d recorded in Volume 1442 f South Burlington.h Burlington. OWNER has subdivided the pOWNER has subdivided the p has or will construct individual has or will construct individ nced below;ced bel WHEREAS, each of the three lAS, each of the three l ate roadway (hereinafter referreate roadway (hereinafter r ingress and egress to their respeingress and egress to their respe nd obligations regarding thnd obligations regardi WHEREAS, all WHEREAS, all this Agthis Ag - 2 - A. SHARED ROAD MAINTENANCE AGREEMENT 1. The three lots to be subdivided by OWNER subject to this Agreement are depicted on a survey entitled, “Lands of Ernest N. Auclair Family Trust, 3- Lot Planned Unit Development Plat” drawn by Lamoureux & Dickinson Consulting Engineers, Inc., dated 1/18/20 and recorded at Map Slide _____ of the Land Records of the City of South Burlington, Vermont. 2. The private roadway serving the three (3) lots subdivided by OWNER is depicted as “Access and Utility Easement from Lot 1 to Lots 2 & 3” on the above-referenced survey. 3. Each of the three lots in the subdivision shall be conveyed by OWNER with the benefit of an easement over the private roadway for ingress and egress. 4. The record owners of each individual lot agree to maintain and, when necessary, improve the private roadway. Furthermore, the record owners of the all the individual lots agree to perform repairs so as to maintain the road in good and safe condition, including, but not limited to, grading, snowplowing, and snow removal. 5. The OWNER and the individual owners of each subdivided lot agree to share in the cost of maintenance, snowplowing, and road improvement/repair expenses in equal shares for said private roadway. All costs for maintenance and upkeep shall be divided equally so each individual lot owner shall be responsible for one third (1/3) of all such expenses and costs. 6. The individual owners shall be solely responsible for the cost of maintenance, snowplowing, and driveway improvement/repair expenses for each of their individual driveways which lead from the private roadway to the individual houses. 7. If the lots are reconfigured or requires amendment prior to the OWNER selling each of the lots, this Agreement may be amended by OWNER.DRAFTermerm s subdivideds subdiv from Lot 1 to Lots 2 from Lot 1 to vision shall be conveyed by OWvision shall be conveyed by O r the private roadway for ingresthe private roadway for ingres ach individual lot agree to mvidual lot e private roadway. Furthermore private roadway. Furth ual lots agree to perform repairlots agree to perform repair d safe condition, including, ndition, including, wing, and snow removal.wing, and snow removal. OWNER and the individual owOWNER and the individual o n the cost of maintenance, sthe cost of maintenance, s expenses in equal shares foexpenses in equal shares fo and upkeep shall be dand upkeep shall be responsible for onensible for one 6. The individual6. The individu snowplowsnowplow ndivindivi - 3 - B. STORMWATER MAINTENANCE AGREEMENT 1. The three lots to be subdivided by OWNER subject to this Agreement are depicted on a survey entitled, “Lands of Ernest N. Auclair Family Trust, 3- Lot Planned Unit Development Plat” drawn by Lamoureux & Dickinson Consulting Engineers, Inc., dated 1/18/20 and recorded at Map Slide _____ of the Land Records of the City of South Burlington, Vermont. 2. The private stormwater system serving the three (3) lots subdivided by OWNER is depicted as “Stormwater Easement from Lot 1 to Lots 2 & 3” and “Stormwater Easement to Benefit Lots 1, 2 & 3” on the above-referenced survey. 3. Each of the three lots in the subdivision shall be conveyed by OWNER with the benefit of an easement over the stormwater system, including, but not limited to all pipes, swales, and treatment practices. 4. The record owners of each individual lot agree to inspect, maintain and, when necessary, repair the stormwater system. Maintenance shall, at a minimum, follow the recommended schedule as depicted on a plan entitled, “Hickory Hillside Planned Unit Development, Sitework Details & Specifications” drawn by Lamoureux & Dickinson Consulting Engineers, Inc., dated 1/18/20. 5. The OWNER and the individual owners of each subdivided lot agree to share in the cost of inspection, maintenance, and repair expenses in equal shares for said stormwater system. All costs for maintenance and upkeep shall be divided equally so each individual lot owner shall be responsible for one third (1/3) of all such expenses and costs. 6. The individual owners shall be solely responsible for the cost of maintenance and repair expenses for each of their individual lots. 7. If the lots are reconfigured or requires amendment prior to the OWNER selling each of the lots, this Agreement may be amended by OWNER.DRAFT(3)(3) from Lot 1 tofrom Lo 2 & 3” on the abov2 & 3” on t vision shall be conveyed by OWvision shall be conveyed by O ver the stormwater system, incer the stormwater system, inc , and treatment practices.atment pra each individual lot agree to inspeach individual lot agree t the stormwater system. Maintestormwater system. Mainte commended schedule as depicd schedule as depic Planned Unit Development, SPlanned Unit Developm n by Lamoureux & Dickinson Cn by Lamoureux & Dickinso The OWNER and the individuae OWNER and the individua in the cost of inspection, main the cost of inspection, ma said stormwater systemsaid stormwater syste equally so each indly so each ind all such expenall such exp The indiviThe indivi and reand re - 4 - C. GENERAL PROVISION 1. This Agreement and the conditions and covenants contained herein shall be binding upon the heirs, successors and assigns of the OWNER hereto and shall run with the land described above. 2. This Agreement shall be interpreted under the laws of the State of Vermont. 3. In the event one of the record owners of Lots shall fail to pay their fair share of costs as above-mentioned then, and in that event, the other owners shall have all the rights available under the laws of the State of Vermont to collect any amounts due and owing. 4. Should the OWNER or the individual lot owners utilize the services of an attorney to enforce any of the conditions or covenants contained in this Agreement, then and in that event, the prevailing party shall be able to recover their legal fees from the other party. 5. This Agreement may be modified in writing with the written consent of all parties. 6. In the event of a dispute and if the dispute cannot be settled through negotiation, the parties herein agree first to try in good faith to settle the dispute by mediation, or some other dispute resolution procedure. The OWNER and the individual lot owners shall consult and negotiate with each other and a mediator/arbitrator in good faith and in an attempt to reach a just and equitable solution satisfactory to all lot owners.DRAFTt, tht, th he State of Vhe State lot owners utilize the serviclot owners utilize th onditions or covenants containonditions or covenants conta ent, the prevailing party shall bent, the prevailing party shall be her party.y be modified in writing with thbe modified in writing w of a dispute and if the disppute and if the disp on, the parties herein agree firon, the parties herein ag ute by mediation, or some otute by mediation, or some OWNER and the individual lot WNER and the individual lot other and a mediator/arbitraother and a mediator/arbitra and equitable solution sand equitable solutio City Woods 0'250'500'1000'1500'