a body politic and corporate created pursuant to the Virginia Water and Waste Authorities Act,

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1 This document was prepared by: Rivanna Water and Sewer Authority 695 Moores Creek Lane Charlottesville, Virginia Tax Map and Parcel Number This EASEMENT MODIFICATION AGREEMENT, made this day of, 2009 by and between the CITY OF CHARLOTTESVILLE, VIRGINIA, a municipal corporation ( Property Owner ), the SCHOOL BOARD OF THE CITY OF CHARLOTTESVILLE, and RIVANNA WATER AND SEWER AUTHORITY, a body politic and corporate created pursuant to the Virginia Water and Waste Authorities Act, whose address is 695 Moores Creek Lane, Charlottesville, Virginia, (the Authority ). WITNESSETH: WHEREAS, by deed dated the 22 nd day of September, 1955 and recorded in the Clerk s Office of the Circuit Court of the County of Albemarle, Virginia in Deed Book 321, page 58, J.W. Huffman and Lora B. Huffman, husband and wife, Lyttelton Waddell and George Coles, Trustees, and H.W. Walsh, receiver in the Chancery cause of Trevelyan v. Immerman, bond holder, conveyed to the City of Charlottesville, a municipal corporation (the City ), an easement to install, maintain and access certain sewer improvements as more particularly described therein (the Existing Easement ), which is shown as Existing Sanitary Sewer Easement on the plat attached hereto and recorded herewith entitled Plat of Various Easements Through the Lands of the City of Charlottesville, Virginia, and the Rio Magisterial District, Albemarle County, Virginia prepared by Kirk Hughes & Associates, dated August 28, 2009 (the Plat ); WHEREAS, pursuant to that certain Deed and Bill of Sale recorded in the Clerk s Office of the Circuit Court of the City of Charlottesville in Deed Book 438, page 854 and in the Clerk s

2 Office of the Circuit Court of the County of Albemarle in Deed Book 768, page 277, the City conveyed to the Authority the Existing Easement along with the transmission lines, right ofways, licenses and permits pertaining thereto; WHEREAS, as shown on the Plat, the Existing Easement crosses a portion of the property conveyed to Property Owner by deed recorded in the Clerk s Office of the Circuit Court of the County of Albemarle in Deed Book 739, page 735, and Property Owner is the fee simple owner of the said property as of the date hereof; and WHEREAS, the Authority has requested and Property Owner has agreed to modify the Existing Easement to permit the Authority to replace, relocate, reconfigure and enlarge the sewer interceptor pipeline as shown on the Plat, all as provided for herein. NOW, THEREFORE, for and in consideration of the sum of ONE DOLLAR ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, Property Owner and the Authority hereby covenant and agree to modify, amend and restate the Existing Easement as follows: 1. Recitals. The recitals set forth above are true and accurate and are incorporated herein by this reference. 2. Reconfiguration of Sewer Interceptor Pipeline. Property Owner hereby consents to the replacement and enlargement of the sewer line, and its relocation and reconfiguration as shown on the Plat. 3. Grant of Easement. Property Owner does hereby GRANT and CONVEY with GENERAL WARRANTY of TITLE unto the Authority a perpetual right of way and easement to construct, install, operate, maintain, repair, replace, relocate and extend a sewer line consisting of pipes, equipment, and appurtenances to such pipes and equipment, over, under and across the 2

3 real property of Property Owner located in the County of Albemarle, Virginia, and to access any other adjacent easement held by the Authority, the location and width of the easement hereby granted and the boundaries of the property being more particularly described and shown on the Plat as Modified Sanitary Sewer Easement (the Modified Easement ). Reference is made to the Plat for the exact location and dimension of the Modified Easement hereby granted and the property over which the same crosses. Further, Property Owner does hereby GRANT and CONVEY with GENERAL WARRANTY of TITLE unto the Authority two perpetual rights of way and easements to construct, install, operate, maintain, repair, replace, relocate and extend a sewer line consisting of pipes, equipment, and appurtenances to such pipes and equipment, over, under and across the real property of Property Owner located in the County of Albemarle, Virginia, and to access any other adjacent easement held by the Authority, the location and width of the easements hereby granted and the boundaries of the property being more particularly described and shown on the Plat as Sanitary Sewer Tie In Easement (the Tie In Easements ). Reference is made to the Plat for the exact location and dimension of the Tie In Easements hereby granted and the property over which the same crosses. To the extent the Tie In Easements overlap the Modified Easements, the Tie In Easements, including the rights granted herein pertaining thereto, are made expressly subject and subordinate to the Modified Easement. Further, Property Owner does hereby GRANT and CONVEY with GENERAL WARRANTY of TITLE unto the Authority two temporary construction easements each for a term so long as necessary to construct and install those certain sewer lines comprising the Meadow Creek Sanitary Sewer Interceptor Upgrade Design project of which the sewer line to be constructed in the Modified Easement is a part and to do all things reasonably necessary and 3

4 incident to such construction, the location and size of the temporary construction easements hereby granted and the boundaries of the property being more particularly described and shown on the Plat as Temporary Construction Easement (the Temporary Construction Easements ). Reference is made to the Plat for the exact location and dimension of the Temporary Construction Easements hereby granted and the property over which the same crosses. The Temporary Construction Easements shall each automatically terminate upon the expiration of the above described term. 4. Easement Obstructions. Property Owner, its successors or assigns, agree that fences, buildings, overhangs or other improvements or obstructions shall not be located within the Modified Easement, the Tie In Easements, or the Temporary Construction Easements (during the term thereof), collectively, the Easements. Prior to installation of the sewer line the Authority and the City will mutually agree on an acceptable landscaping plan for the Easements with (a) plantings selected from the Authority s list of approved plants for sewer line easements in the outer portions of the Easements, and (b) low ground cover in the area ten (10) feet on each side of the centerline of the proposed sewer line. The Modified Easement, Tie In Easements and Temporary Construction Easements (during the term thereof) shall include the right of the Authority to cut any trees, brush and shrubbery, remove obstructions and take other similar action within the Easements reasonably necessary to provide economical and safe sewer line installation, operation, and maintenance. It is the intent of both parties to preserve trees within the Easements consistent with the economical and safe installation, operation and maintenance of the sewer line, and to that end, prior to installation of the sewer line, representatives of the City and the Authority will meet to determine which trees within the Easements can be retained consistent with such installation, operation and maintenance and the measures that can be 4

5 utilized to protect those trees. The Authority shall have no responsibility to Property Owner, its successors or assigns, to replace or reimburse the cost of trees, brush, shrubbery, or other obstructions located in the Easements if cut or removed or otherwise damaged. 5. Easement Access and Maintenance. As part of the Modified Easement, the Tie In Easements, and the Temporary Construction Easements, the Authority shall have the right to enter upon the above described property within the Modified Easement, the Tie In Easements, and the Temporary Construction Easements (during the term thereof), for the purpose of installing, constructing, operating, maintaining, repairing, replacing, relocating and extending the above described sewer line and appurtenances thereto, within the Modified Easement and the Tie In Easements; and in addition, the Authority shall have the right of ingress and egress thereto as reasonably necessary to construct, install, operate, maintain, repair, replace, relocate and extend such sewer lines. If the Authority is unable to reasonably exercise the right of ingress and egress over the right of way, the Authority shall have the right of ingress and egress over the property of Property Owner adjacent to the right of way, and shall restore surface conditions of such property adjacent to the right of way as nearly as practical to the same condition as prior to the Authority s exercise of such right. 6. Excavation. Whenever it is necessary to excavate earth within the Modified Easement, the Tie In Easements, or the Temporary Construction Easements (during the term thereof), the Authority agrees to backfill such excavation in a proper and workmanlike manner so as to restore surface conditions as nearly as practical to the prior condition and consistent with the provisions of Section 4 above, including restoration of such paved surfaces as may be damaged or disturbed as part of such excavation. 5

6 7. Ownership of Facilities. The facilities constructed within the Modified Easement and the Tie In Easements shall be the property of the Authority, its successors and assigns, which shall have the right to inspect, rebuild, remove, repair, improve and make such changes, alterations and connections to or extensions of its facilities within the boundaries of the Modified Easement and the Tie In Easements as are consistent with the purposes expressed herein. 8. Partial Release of Existing Easement. Effective at such time as the Meadow Creek Sanitary Sewer Interceptor Upgrade Design project is finally complete and fully operational, the Authority hereby SURRENDERS, QUITCLAIMS, RELEASES and CONVEYS unto Property Owner all of its right, title and interest in and to that portion of the Existing Easement to the extent, and only to the extent, such portion is outside the boundaries of the Modified Easement and/or the Tie In Easements as more particularly shown on the Plat. The existing sewer line and appurtenances thereto within such abandoned portion of the Existing Easement shall be abandoned in place. 9. The School Board of the City of Charlottesville joins in this Easement Modification Agreement to evidence its consent to the granting of the easements described herein, to the extent that said easements are located on real property currently used as public school property. SIGNATURES ON FOLLOWING PAGE 6

7 WITNESS the following signatures and seals: PROPERTY OWNER: THE CITY OF CHARLOTTESVILLE By: Dave Norris, Mayor (SEAL) COMMONWEALTH OF VIRGINIA CITY OF CHARLOTTESVILLE, to wit: The foregoing instrument was acknowledged before me this day of, 20, by Dave Norris, Mayor of the City of Charlottesville. Notary Public My commission Expires: Commission No.: AUTHORITY: RIVANNA WATER AND SEWER AUTHORITY By: (SEAL) Thomas L. Frederick, Jr., Executive Director COMMONWEALTH OF VIRGINIA COUNTY OF ALBEMARLE, to wit: The foregoing instrument was acknowledged before me this day of, 20, by as of Rivanna Water and Sewer Authority. Notary Public My commission Expires: Commission No.: 7

8 SCHOOL BOARD OF THE CITY OF CHARLOTTESVILLE By: Edmund R. Michie, Chair (SEAL) COMMONWEALTH OF VIRGINIA COUNTY/ CITY OF, to wit: The foregoing instrument was acknowledged before me this day of, 20, by Edmund R. Michie as Chair of the School Board of the City of Charlottesville. Notary Public My commission Expires: Commission No.: 8