HomeMy WebLinkAboutSD-19-24 - Supplemental - 0390 Garden StreetGRANT OF DEVELOPMENT RIGHTS
AND WETLAND CONSERVATION RESTRICTIONS
KNOW ALL PERSONS BY THESE PRESENTS that SOUTH BURLINGTON CITY CENTER, LLC, a Vermont limited liability company on behalf of itself, and its successors and assigns (hereinafter “Grantor”),
pursuant to 10 V.S.A. Chapter 155 and in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, does freely give, grant, sell, convey, and confirm unto the CITY OF SOUTH BURLINGTON, a Vermont municipality with its principal office in South Burlington, Vermont, and
its successors and assigns (hereinafter “Grantee”) forever, the development rights and perpetual and assignable river wetland conservation easement and restrictions, all as more particularly
set forth below, said rights and easement pertaining to a portion only of a certain parcel of land located in the City of South Burlington, Chittenden County, Vermont, and being more
particularly identified as “Wetlands 2012-RS1/RS1b/PW1” on Schedule A attached hereto and incorporated herein (hereinafter “the Protected Property”).
The development rights hereby conveyed to Grantee shall include all development rights except those specifically reserved by Grantor herein, if any, and those reasonably required to
carry out the permitted uses of the Protected Property as herein described. The development rights and restrictions hereby conveyed are rights and interests in real property pursuant
to 10 V.S.A. §§ 823 and 6303. The wetland conservation easement and restrictions hereby conveyed to Grantee consist of covenants on the part of Grantor to do or refrain from doing
the various acts set forth below. It is hereby acknowledged that these covenants shall constitute a servitude upon the land and run with the land.
Purposes of this Grant
Grantor and Grantee acknowledge and agree that, consistent with the objectives of the Wetland Program administered by the Vermont Agency of Natural Resources, Department of Environmental
Conservation, the purposes of this grant are to support wetland functions of the [majority of wetland complex B (the “Wetland”) and its buffer zone, as defined in III(2) below,] in
order to reduce flood and erosion hazards; to improve water quality through capture and storage of flows, sediment, and nutrients; and to conserve and enhance aquatic and wildlife habitats
and the natural processes associated with the Protected Property now and in the future.
Grantor and Grantee acknowledge and agree that this Grant of Development Rights and Wetland Conservation Restrictions will accomplish the above-recited purposes, and that, more specifically,
it is their intent that those purposes be achieved by maintaining and enhancing wetland functions and values.
Grantor and Grantee recognize the Purposes of this Grant and share the common goal of conserving these functions and values by the conveyance of this Grant of Development Rights and
Wetland Conservation Restrictions to avoid the future public and private expenditures and public safety hazards that would arise from the conversion of the Protected Property to uses
incompatible with the intent and Purposes of this Grant. Grantee accepts the development rights and restrictions contained in this conservation easement in order to achieve these objectives
for the benefit of present and future generations. The purposes set forth above in this Section I are herein collectively referred to as “the Purposes of this Grant.”
Roles and Responsibilities of State Agencies
Upon request, State Resource Agencies (as hereinafter defined) shall provide technical assistance within their areas of expertise to Grantee in exercising its discretion on restrictions
and uses of the Protected Property consistent with the provisions of Sections III, IV, and V, and with the Purposes of this Grant. In addition to VTDEC, State Resource Agencies shall
include the Vermont Agency of Natural Resources, Department of Forest, Parks, and Recreation (VTDFPR) and Department of Fish and Wildlife (VTDFW), or any successor agencies.
Restricted Uses of Protected Property
The Protected Property shall be used for agricultural, forestry, educational, non-commercial recreation, and open space purposes only. The restrictions hereby imposed upon the Protected
Property, and the acts which Grantor shall do or refrain from doing, are as follows:
1. Except as otherwise permitted under this Grant, Grantor shall not construct, place, repair, or modify structures or structural elements such as revetments, levees, or earthen fills.
Grantor shall not remove or deposit sand, gravel, or rock, or otherwise manipulate the Tributary, the Wetland, or other water bodies in a manner that will alter natural water levels
of the river and Wetland, or intervene in the natural physical adjustment of the river and Wetland.
2. Except as hereinafter otherwise permitted in this Grant, or as allowed by Wetland Permit, an undisturbed buffer of a minimum of 50 feet in width measured landward from the delineated
edge of the Wetland (the “Buffer”) shall be established and maintained. Grantee may grant written permission for a non-commercial, non-motorized recreational trail through the Buffer
if Grantee and VTDEC determine, in their sole discretion, that any new trail will have minimal impact on the Buffer, and is consistent with the Purposes of this Grant.
3. No timber harvesting shall be allowed within the Wetland and Buffer, except when the Protected Property is included in a Forest Management Plan approved by Grantee or enrolled as
managed forest land in the State of Vermont’s Use Value Appraisal Program (also referred to as “Current Use”) or similar successor program. Harvesting must be conducted consistent
with a forest management prescription, which has the primary purpose of maintaining a forested riparian buffer, and as provided for in Section III(2), consistent with the Purposes of
this Grant. Grantee may grant written permission for a temporary opening and crossing of the Protected Property for the purpose of timber harvesting on lands that have no other reasonable
access other than through the Protected Property.
No clearing of forests to establish fields, orchards, or pastures, shall occur elsewhere within the Protected Property except with prior written permission from Grantee, if Grantee and
VTDEC determine, in their sole discretion, after consultation with the VTAAFM, that the clearing of woody vegetation outside the Buffer to enable agricultural use will be consistent
with the Purposes of this Grant. Notwithstanding the foregoing, Grantor may clear orchards or other tree-based agricultural areas outside of the Protected Property when switching from
one agricultural use to another.
4. Cutting and removing invasive species from the Protected Property shall be permitted with the prior written approval of Grantee and VTDEC if deemed to be consistent with the Purposes
of this Grant by Grantee in its sole discretion.
5. No residential, commercial, industrial, or mining activities shall be permitted, and no building, structure, or appurtenant facility or improvement (other than fences and at-grade
fords of streams) shall be constructed, created, installed, erected, or moved onto the Protected
Property, except as specifically permitted under this Grant or as may be permitted in writing by Grantee, if deemed by Grantee and VTDEC, in their sole discretion, to be consistent with
the Purposes of this Grant.
6. No rights-of-way, or easements for ingress or egress, driveways, roads, utilities, or other easements or rights shall be granted on, over, under, or across the Protected Property,
without the prior written permission of Grantee, except as otherwise specifically permitted under this Grant, and as appear of record prior to the date of this Grant. Grantee may grant
permission for any rights-of-way, easements for ingress or egress, driveways, roads, utilities, or other easements or rights, if Grantee and VTDEC determine, in their sole discretion,
that any such rights-of-way, easements for ingress or egress, driveways, roads, utilities, or other easements or rights are consistent with the Purposes of this Grant.
7. The Protected Property shall not be subdivided or conveyed in separate parcels without the prior written approval of Grantee, which approval may be granted, conditioned, or denied
in Grantee’s and VTDEC’s sole discretion.
8. Grantor, or its successors and assigns, shall maintain stormwater systems on the Protected Property.
9. 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
Grantee 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. Grantee and VTDEC, therefore, in their 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.
All such approved uses, structures, or improvements shall not be protected from river and Wetland flooding or movement, and any loss of the capital investment is solely born by Grantor.
Permitted Uses of the Protected Property by Grantee
Grantor and Grantee acknowledge and agree that achieving the Purposes of this Grant generally means no intervention in the natural physical changes that may occur in the Wetland. Achieving
the Purposes of this Grant, however, may require limited management of the Protected Property. Therefore, the following rights and uses are hereby conveyed to Grantee, and to the Grantee’s
designees, including VTDEC, licensees, and successors in interest:
1. A right of access to, over, across, and within the Protected Property, upon reasonable notice, to conduct any and all activities provided hereunder or related to the Purposes of this
Grant.
2. With the approval and participation of the Grantor, the right to mark the general boundaries of the Protected Property.
3. The right within the Protected Property, with approval from VTDEC and consistent with the Purposes of this Grant, to conduct wetland and buffer management for restoration or enhancement.
No such management activity shall be undertaken without adequate notice to Grantor and due regard to the impact of such management activity on Grantor’s use of the Protected Property
otherwise permitted under this Grant, particularly agricultural use; so that Grantor’s capital investments in the Protected Property approved by Grantee subsequent to this
Grant, if any, and which will be lost due to management activity are reasonably considered but without the obligation to pay compensation for such loss.
4. The right to establish and maintain native woody vegetation within the Wetland and the Buffer described in Section III(2), and the right to manage for exotic invasive species.
5. The right to maintain existing drainage improvements on the Protected Property outside of the Wetland and Buffer in compliance with all applicable laws and regulations, including
drainage improvements to those watercourses that have not been specifically identified for protection within the Protected Property in Section I, but only to the extent necessary to
enable continued use of stormwater infrastructure.
Enforcement of the Restrictions.
Grantee shall make reasonable efforts from time to time to assure compliance by Grantor with all of the covenants and restrictions herein. In connection with such efforts, Grantee may
make periodic inspection of all or any portion of the Protected Property, and for such inspection and enforcement purposes, Grantee shall have the right of reasonable access to the
Protected Property. In the event that Grantee becomes aware of an event or circumstance of non-compliance with this Grant, Grantee shall give notice to Grantor of such event or circumstance
of non-compliance 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. 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 Grantee to incur extraordinary costs, including staff time, in investigating the non-compliance and securing its correction, Grantor shall, at Grantee’s request,
reimburse Grantee 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 Grantee within a reasonable time after receipt of notice and reasonable opportunity
to take corrective action shall entitle Grantee 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 Grantee to corrective action on the Protected Property, if necessary. If the court determines that Grantor has failed
to comply with this Grant, Grantor shall reimburse Grantee 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 Grantee initiates litigation and the court determines that Grantor has not failed to comply with this Grant and that Grantee has initiated
litigation without reasonable cause or in bad faith, then the Grantee shall reimburse Grantor for any reasonable costs of defending such action, including court costs and reasonable
attorneys’ fees. 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 Grantee to such equitable relief, including injunctive relief, as the court deems just. The remedies described herein are in addition
to, and not in limitation of, any other remedies available to Grantee at law, in equity, or through administrative proceedings.
No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair Grantee’s rights or remedies or be construed as a waiver. Nothing in this
enforcement section shall be construed as imposing a liability upon a prior owner of the
Protected Property, when the event or circumstance of non-compliance occurred after said prior owner’s ownership or control of the Protected Property terminated.
Miscellaneous Provisions
1. Where Grantor is required, as a result of this Grant, to obtain the prior written approval of Grantee 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 Grantee. Grantor shall reimburse
Grantee or Grantee’s designee for all extraordinary costs, including staff time, incurred in reviewing the proposed action requiring Grantee’s approval; but not to include those costs
which are expected and routine in scope. Upon the request of Grantor, Grantee shall deliver to Grantor, in written recordable form, any approval, disapproval, election, or waiver given
by Grantee pursuant to this Grant.
2. Grantor agrees that the construction of any buildings, structures, or improvements, or any use of the land otherwise permitted under this Grant, or the subdivision and separate conveyance
of any land which may be approved by Grantee under Section III(7), shall be in accordance with all applicable ordinances, statutes, and regulations and at Grantor’s sole expense.
3. It is further agreed that the Protected Property is accurately depicted and described in both Schedule A and a Baseline Documentation Report (“BDR”) signed by the original Grantor
on or about the date of this Grant and held by Grantee. Grantee may use the BDR in enforcing this Grant, and is not limited in the use of the BDR to show a change of conditions.
4. Grantee shall transfer the development rights, and conservation easement and restrictions conveyed by Grantor herein only to a State agency, municipality, or qualified organization,
as defined in 10 V.S.A. Chapters 34 and 155, in accordance with the laws of the State of Vermont and the regulations established by the Internal Revenue Service governing such transfers.
5. In the event the development rights or conservation restrictions conveyed to the Grantee herein are extinguished by eminent domain or other legal proceedings, Grantee shall be entitled
to any proceeds which pertain to the extinguishment of Grantee’s rights and interests. Any proceeds from extinguishment shall be allocated between Grantor and Grantee in accordance
with the value of their respective interests as determined by an appraisal commissioned by Grantee at the time of extinguishment. Grantee shall use any such proceeds to preserve undeveloped
and open space land in order to protect the aesthetic, agricultural, educational, scientific, forestry, and natural resources of the State through non-regulatory means.
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 Grantee
and VTDEC of the name(s) and address(es) of Grantor’s successor(s) in interest.
7. Grantee shall be entitled to re-record this Grant, or to record a notice making reference to the existence of this Grant, in the City of South Burlington Land Records as may be necessary
to satisfy the requirements of the Record Marketable Title Act, 27 V.S.A., Chapter 5, Subchapter 7, including 27 V.S.A. §§ 603 and 605.
8. The term “Grantor” includes the successors and assigns of the original Grantor, South Burlington City Center, LLC. The term “Grantee” includes the respective successors and assigns
of the original Grantee, City of South Burlington.
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 warrants at the time of execution of this Grant that there are no notices by any governmental authority of any violation or alleged violation of, non-compliance or alleged
non-compliance with or any liability under any environmental law relating to the operations or conditions of the Protected Property. Grantor further warrants that Grantor has no actual
knowledge, without duty of inquiry, of a release or threatened release of hazardous materials, as such substances and wastes are defined by applicable federal and state law.
11. Grantor hereby promises to hold harmless and indemnify Grantee against all litigation, claims, demands, penalties, and damages, including reasonable attorneys’ fees, arising from
or connected with the Protected Property, including ones arising from or connected to 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 the actions or inactions of Grantor as owner or operator of the premises, or those of
Grantor’s agents. Grantor’s indemnification obligation shall not be affected by any authorizations provided by Grantee to Grantor with respect to the Protected Property or any restoration
activities carried out by Grantee.
12. This Grant is created pursuant to 10 V.S.A. Chapter 34, Conservation and Preservation Rights and Interests, and 10 V.S.A. Chapter 155, Acquisition of Interests in Land by Public
Agencies, 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. Invalidation of any provision hereof shall not affect any other provision of this Grant.
TO HAVE AND TO HOLD said granted development rights, and perpetual conservation easement and restrictions, with all the privileges and appurtenances thereof, to the said Grantee, City
of South Burlington, and its successors and assigns, to its own use and behoof forever, and the said Grantor, South Burlington City Center, LLC, for itself, and its successors and assigns,
does covenant with the said Grantee, its successors and assigns, that until the ensealing of these presents, it is the sole owner of the premises, and 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. Chapter 5, Subchapter 7; and they hereby engage to warrant and defend the same against all lawful claims whatever, except
as aforesaid.
[Signature Page Follows]
IN WITNESS WHEREOF, we set our hands and seals this ____ day of ____________, 2019.
GRANTOR:
South Burlington City Center, LLC,
a Vermont limited liability company
By: ______________________
Name:
Title:
STATE OF VERMONT
_____________ COUNTY, ss.
At __________________, this ____ day of _____________, 2019, _________________, _________________ and duly authorized agent of South Burlington City Center, LLC, a Vermont limited liability
company, personally appeared 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 South Burlington
City Center, LLC.
Before me: ______________________________
Notary Public
My commission expires:
GRANTEE:
City of South Burlington,
a Vermont municipality
By: ______________________
Name:
Title:
STATE OF VERMONT
_____________ COUNTY, ss.
At __________________, this ____ day of _____________, 2019, _________________, _________________ and duly authorized agent of the City of South Burlington, a Vermont municipality, personally
appeared 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 City of South Burlington.
Before me: ______________________________
Notary Public
My commission expires:
Schedule A
The Protected Property
19176088.3