20072055 Ver 1_More Info Received_20080903

CAPE FEAR
Engineering, Inc.
151 Poole Road, Suite 100
Belville, NC 28451
TEL [phone]
FAX [phone]
www.capefearengineering.com
To: NCDWQ-401 Oversight
Express Review Permitting Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
Attn: Mr. Ian McMillian
® As Requested ? For Your Files ? For Distribution ? For your Review / Action / Approval
® Sent via Mail ? Sent via Courier
Quantity Drawing No.
1 Cover Letter
1 Copy Conservation Declaration
1 Copy of Wetland Preservation Map
1 Copy of Conservation Easement
REMARKS If you have any questions please contact Noelle Winstead [phone].
Transmittal
Date: September 2, 2008 1'
File: 275-37 "36"
Subject: Independence Apartments
Action # SAW-2007-00064
DWQ Project # 07-2055
Description
CC: File Copy
1 7
,
I r,
Cape Fear Engineering, Inc.
Signed: -?---
Noelle Winstead
S- P 3 "Gob
9Et4R - VAT EN WAla Y
VjEdLp,,.DS AND STORM`ati'HTEk SRilNt o"i
Received By:
Date:
Transmittal-404/ 401 Permit App 12-20-07
CAPE FEAR
Engineering, Inc.
August 29, 2008
Mr. Ian McMillan, Senior Environmental Specialist
NC Division of Water Quality, 401/ Wetlands Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
Subject: Additional Information, DWQ Project # 07-2055
401 Water Quality Certification 3705 and Isolated Wetland General Permit Application
Independence Apartments, Wilmington, New Hanover County
Dear Ian,
On behalf of The Oleander Company, Cape Fear Engineering is submitting additional information
concerning the subject project as requested in a letter from the Wilmington Regional Office dated August
8, 2008.
The letter specifically requested that the proposed Declaration of Restrictions be revised to resemble the
model preservation documents found on the USACE website. Chad Coburn of the Wilmington Regional
Office also suggested that the document resemble the existing conservation easement language that was
recorded for the adjacent tract of land.
A revised Conservation Declaration is enclosed for your review. The document has been prepared to
resemble both the model document and the existing document recorded for the adjacent property. As
previously explained the only allowances that the property owner is requesting to retain are the ability to
construct wooden elevated walkways as allowed by the existing conservation easement (enclosed) and the
ability to maintain the vegetation in Area A as it has been for many years. There are no trees in this area;
although, the owner may plant native trees in this area sometime in the future. There is a 20' utility
easement within Area A for the purpose of installing a storm drain pipe needed to direct stormwater
runoff to a treatment system. This temporary wetland impact has been permitted by the USACE and has
been applied for as part of the 401 Water Quality Certification application.
It is also our understanding that this document will be forwarded to the Attorney General's Office for
review. If there are any questions concerning the language in the document, David Huffine of
McQuireWoods LLP can be reached at [phone].
If you have any other questions, please call me at [phone].
Sincerely,
Noelle Winstead
Cape Fear Engineering Inc.
cc: Chad Coburn, DWQ Wilmington Regional Office
John Tunstall, P.E., Norris, Kuske, & Tunstall
Nelson MacRae, The Oleander Company Inc.
151 Poole Road, Suite 100 • Oelville, NC25451 • TEL: [phone] --FAX. [phone]
www.capefearengineering. com
Prepared By:
McGuireWoods LLP (DEH)
300 North Third Street, Suite 400
Wilmington, North Carolina 28401
STATE OF NORTH CAROLINA
NEW HANOVER COUNTY
CONSERVATION DECLARATION
This DECLARATION of CONSERVATION COVENANTS, CONDITIONS, and
RESTRICTIONS ("Declaration") is made on this _ day of September, 2008, by THE
OLEANDER COMPANY, a corporation organized and existing under the laws of the. State of
North Carolina ("Declarant").
RECITALS & CONSERVATION PURPOSES
A. Declarant is the sole owner in fee simple of the certain Conservation Property
(Property) more particularly described as Wetland Preservation A ("Area A") and Wetland
Preservation B ("Area B") as shown on a Map entitled " WETLAND PRESERVATION MAP -
OLEANDER COMPANY" prepared by Hanover Design Services, P.A. attached hereto as
Exhibit A (the "Map"). Area A and Area B are collectively referred to as the "Property".
B. The purpose of this Conservation Declaration is to maintain wetland resources
within Area A and Area B and other natural values and character of the Property as set forth
herein as mitigation for permitted filling of isolated wetlands pursuant to the provisions of Permit
Number: IWGP100000 issued by the Department of Environment and Natural Resources,
Division of Water Quality, Project Number 2007-2055 and 401 Water Quality Certification
Number 3705. The parties intend that the provisions hereof may be enforced by the Division of
Water Quality (DWQ") or its successors.
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that the
Property shall be held and subject to the following restrictions, covenants and conditions as set
out herein, to run with the subject real property and be binding on all parties that have or shall
have any right, title, or interest in said property.
ARTICLE I. PROHIBITED AND RESTRICTED ACTIVITIES
Subject to the rights retained by Declarant as set forth herein and other provisions of this
Declaration, the Property shall be maintained in its natural, scenic, and open condition and
restricted from any development or use that would impair or interfere with the conservation
purposes of this Conservation Declaration set forth above.
Without limiting the generality of the foregoing, the following activities and uses are expressly
prohibited or restricted.
A. Disturbance of Wetlands and Natural Features. Any change, disturbance,
alteration or impairment of the wetlands or other natural features located on the Property except
as expressly permitted hereunder. .
B. Construction. There shall be no constructing or placing of any building, mobile
home, road, driveway, asphalt or concrete pavement, billboard or other advertising display,
antenna, utility pole, tower, conduit, line, or any other temporary or permanent structure or
facility on or about the Property except for walkways and other improvements as expressly
permitted under the terms of this Declaration.
C. Industrial, Commercial and Residential Use. Industrial, residential and/or
commercial activities, including any right of passage for such purposes are prohibited excluding
the use of the walkways as hereafter set forth.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal
husbandry, and horticultural uses of the Property are prohibited, except that the non-commercial
propagation of carnivorous and native plants, grasses and trees and their continued maintenance
on the Property are permitted.
E. Vegetation. There shall be no destruction or cutting of trees or plants on the
Property except 1) to control insects, invasive non-native plants and disease: 2) to clear and
restore vegetative cover that has been damaged or disturbed by forces of nature or otherwise; 3)
to remove trees to the extent reasonably necessary for the installation of walkways, associated
utility lines and stormwater installations as permitted hereunder; 4) to remove any hazardous
vegetation affecting any road, trail or walkway including roads, streets, trails and walkways
located on other real property adjacent to the Property.
F. Signage. No signs shall be permitted on or over the Property, except the posting
of no trespassing signs, signs identifying the conservation values of the Property, signs giving
2
16506034.3
directions or proscribing rules and regulations for the use of the Property Including the
walkways) and/or signs identifying the Grantor as owner of the property.
G. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or hazardous waste,
or any placement of underground or aboveground storage tanks or other materials on the
Property is prohibited.
H. Excavation, Dredging or Mineral Use. There shall be no grading, filling,
excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals
or other materials, and no change on the topography of the land in any manner on the Property,
except to maintain or restore the natural hydrology, topography or drainage patterns or the
carnivorous plant habitat except as is related to the construction and maintenance of walkways as
permitted hereunder.
I. Water Quality and Drainage Pattern. There shall be no diking, draining, dredging,
channeling, filling, leveling, pumping, impounding or related activities, or altering or tampering
with water control structures or devices, or disruption or alteration of the restored, enhanced, or
created drainage patterns. In addition, diverting or causing or permitting the diversion of surface
or underground water into, within or out of the easement area by any means, removal of
wetlands, polluting or discharging into waters, springs, seeps, or wetlands, or use of pesticide or
biocides is prohibited. Notwithstanding the foregoing, Declarant may, but is not obligated to,
undertake activities which are designed to maintain, pro, protect or restore natural drainage
patterns, hydrology, wetland values and habitat for carnivorous plants so long as such activities
do not otherwise violate applicable law. Furthermore, nothing contained herein shall be deemed
to restrict or affect the flow of water over and upon the Property from adjacent property, whether
or not owned by Declarant nor shall it be deemed or construed to restrict or impede the flow of
stormwater and drainage from other adjoining tracts.
J. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited except to the extent
allowed under Article II.
ARTICLE H. DECLARANT'S ADDITIONAL RESERVED RIGHTS
In addition to those rights reserved to Declarant herein and notwithstanding any other prohibition
contained herein, Declarant does specifically reserve unto itself, its successors and assigns, the
following rights:
A. To construct, repair, replace, reconstruct and remover wooden bridges or
walkways across the Property, said walkways to be no more that six (6) feet in width and
supported and elevated a minimum of three (3) feet above the existing grade.
B. To install, repair, maintain, replace and re-install above-ground utility lines used
in connection with any walkway constructed pursuant to Paragraph A above.
C. To plant native species and to mow undergrowth within Area A.
16506034.3
D. To install and maintain storm drainage facilities within the drainage easement
located within Area A as depicted on the Map.
ARTICLE III. ENFORCEMENT & REMEDIES
A. This Declaration may be enforced by DWQ. This covenant is to run with the land
and shall be binding on all parties and all persons claiming under the Declarant.
B. DWQ, its employees and agents and its successors and assigns, have the right,
with reasonable notice, to enter the Property at reasonable times for the purpose of inspecting the
Property to determine whether the Declarant, Declarant's representatives, or assigns are
complying with the terms, conditions and restrictions of this Conservation Declaration.
C. Nothing contained in this Conservation Declaration shall be construed to entitle
DWQ to bring any action against Declarant for any injury or change in the Conservation
Property caused by third parties, resulting from causes beyond the Declarant's control, including,
without limitation, fire, flood, storm, and earth movement, or from any prudent action taken in
good faith by the Declarant under emergency conditions to prevent, abate, or mitigate significant
injury to life, damage to Property or harm to the Property resulting from such causes. Declarant
shall have no liability whatsoever for breach or violation of this Declaration if such violation
occurs after transfer of title to the Property by Declarant.
ARTICLE IV. PUBLIC ACCESS
A. This Conservation Declaration does not convey to the public the right to enter the
Property for any purpose whatsoever.
ARTICLE V. DOCUMENTATION AND TITLE
A. Conservation Property Condition. The Declarant represents and acknowledges
that the Property is currently undeveloped land, with no improvements other than any existing
utility lines, Declarations and rights of way.
B. Title. The Declarant covenants and represents that the Declarant is the sole owner
and is seized of the Property in fee simple; that Declarant has good right to make the herein
Declaration; and that the Property is free and clear of any and all encumbrances, except general
utility easements, restrictions of record, if any, and the terms and conditions of all applicable
building codes and zoning ordinances.
ARTICLE VI. MISCELLANEOUS
A. Entire Agreement. This instrument sets forth the entire agreement of the parties
with respect to the Conservation Declaration and supersedes all prior discussions, negotiations,
understandings or agreements relating to the Conservation Declaration. If any provision is found
\6506034.3
to be invalid, the remainder of the provisions of this Conservation Declaration, and the
application of such provision to persons or circumstances other than those as to which it is found
to be invalid, shall not be affected thereby.
B. Recording. Declarant shall record this instrument and any amendment hereto in
timely fashion in the official records of New Hanover County, North Carolina, and may re-
record it at any time as may be required to preserve its rights.
C. Environmental Condition of Conservation Property. The Declarant warrants and
represents that to the best of its knowledge after appropriate inquiry and investigation: (a) the
Property described herein is substantial compliance with all federal, state and local
environmental laws and regulations, and (b) as of the date hereof there are no hazardous
materials, substances, wastes, or environmentally regulated substances (including, without
limitation, any materials containing asbestos) located on, in or under the Property or used in
connection therewith, and that there is no environmental condition existing on the Property that
may prohibit or impede use of the Property for the purposes set forth in the Recitals.
IN WITNESS WHEREOF, Declarant has hereunto set his hand and seal, the day and year first
above written.
THE OLEANDER COMPANY, INC.
BY:
Nelson MacRae, President
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
I, , a Notary Public, do hereby
certify that Nelson MacRae personally appeared before me this day, and acknowledged that he
is the President of The Oleander Company, Inc., a North Carolina corporation, and that by
authority duly given and as the act of the corporation, the foregoing instrument was signed and
sealed in its name by him/her as its President.
WITNESS my hand and notarial seal, this day of July, 2008.
Notary Public
Print or Type Name
(Official Seal) My Commission Expires:
/65060343
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Returned To:
MARSHALL WILLIAMS
& GORHAMO, LLP
NORTH CAROLINA
NEW HANOVER COUNTY
FOR REGISTRATIONCREIISTE OF HEEDS
REBECCA T.
NEW HANOVER COUNTY NC
20021UL V 1 iV l tM
B0349 Tg# 20Q20331301 I
jT STRU
P/0 R06109-004-024-000
CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT ("Conservation Easement") made thisZ!?day of
Jv?V?t. , 2002 by and between THE OLEANDER COMPANY, INC., a North Carolina
corporation with an address of P. O Box 3145, Wilmington NC 28406 ("Grantor") and NORTH
CAROLINA COASTAL LAND TRUST, a non-profit North Carolina corporation with an
address of 3806-B Park Avenue, Wilmington NC 28403 ("Grantee").
The designation Grantor and Grantee as used herein shall include said parties, their successors
and assigns, and shall include singular, plural, masculine, feminine or neuter as required by
context.
RECITALS
WHEREAS, the Grantor has executed a Consent Decree in United States of America v. The
Oleander Company, Inc. et al, Civil Action No. 7:01-CV-229-H(1) (E.D.N.C.), which was
lodged in the United States District Court for the Eastern District of North Carolina on April 2,
2002.
WHEREAS, the Grantor owns a certain tract or parcel of land lying and being in the City of
Wilmington, New Hanover County, North Carolina, being 39.67 acres, more or less, as more
particularly described in Exhibit A attached hereto and incorporated herein ("Property").
WHEREAS, Grantee is a non-profit corporation of the State of North Carolina whose purposes
include the preservation and conservation of open space and natural areas for conservation and
wetland mitigation purposes; is authorized by the laws of the State of North Carolina to accept,
hold and administer conservation easements; possesses the authority to accept and is willing to
accept this Conservation Easement under the terms and conditions hereinafter described.
WHEREAS, the U. S. Environmental Protection Agency, with an address of Region IV, 61
Forsyth St., SW, Atlanta GA 30303 is the federal agency having administrative jurisdiction over
the interests acquired by the United States by this instrument.
WHEREAS, Grantor and Grantee recognize the conservation value of the Property in its present
state which includes wetlands and habitat for various carnivorous plant species of special
concern including pitcher plants (e.g., Sarracenia flava, Sarracenia minor) Venus Flytrap
(Dionaea muscipula) and wild orchids, said carnivorous plant habitat being man-made and
maintained through active management. -'
WHEREAS, Grantor and Grantee further recognize the conservation value of the Property in its
present state as open space for passive recreational and educational purposes, the preservation of
which (a) is pursuant to state and federal local government policy and will provide for the scenic
enjoyment of the general public and (b) will yield significant public benefit, as evidenced by:
(1) The location of the Property adjacent to Alderman Elementary School, and its
traditional use for environmental education by students and teachers;
(2) the fact that development of the Property would destroy the significant plants on the
Propertyand the natural, scenic, and open character of the Property;
(3) the protection against unauthorized disturbance, removal and sale of Venus Flytraps
pursuant to N.C.G.S 106-202.15 and regulations promulgated thereuner by the North
Carolina Department of Agriculture; and
(4) criminal fines and penalties imposed by New Hanover County Code, Section 12-141
for the unauthorized removal or taking of Venus Flytraps from the land of another or from
any public domain.
WHEREAS, the condition of the Property (together with another tract of land) at the time of
this grant has been established in the reports, plans, accompanying photographs, maps and
documentation titled "Conservation Easement Baseline Report: The Alderman Tract" prepared
by Land Management Group dated July 2001 and hereby acknowledged by the Grantor and
Grantee to be complete and accurate as of the date hereof. Both the Grantor and the Grantee
have copies of this report. It will be used by the parties to assure that any future changes in the
use of the Property will be consistent with the terms of this Conservation Easement. However,
this report is not intended to preclude the use of other evidence to establish the present condition
of the Property if there is a controversy over its use.
WHEREAS, the Grantor, on behalf or itself, its successors and assigns, in consideration of the
terms of the Consent Decree in the case of United States of America v. The Oleander Company,
Inc., et al, and other good and valuable considerations to the Grantor, the receipt of which is
hereby acknowledged, has bargained and sold and by these presents does bargain, sell, and
convey unto the Grantee, its successors and assigns in fee simple, a perpetual Conservation
Easement over the Property, thereby restricting and limiting the use of the Property on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the covenants and representations contained
herein for other good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged Grantor unconditionally and irrevocably hereby grants and conveys unto
Grantee, its successors and assigns, forever and in perpetuity a Conservation Easement of the
nature and character and to the extent hereinafter set forth, over the Property together with the
right to preserve and protect the conservation values set forth in the Recitals above, as follows:

ARTICLE I
PURPOSES
The purposes of this Conservation Easement are to preserve, protect and restore the conservation
values of the Property and maintain the natural character of the Property. To achieve these
purposes, the parties hereto agree to the conditions and restrictions set forth hereunder.
ARTICLE H
DURATION OF EASEMENT
This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land and
is enforceable by Grantee against Grantor, Grantor's successors and assigns, lessees, agents and
licensees.
ARTICLE III
PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes of this Conservation
Easement is prohibited. The Property shall be preserved in its natural conditions and restricted
from any development that would significantly impair or interfere with the conservation values
of the Property.
Without limiting the generality of the foregoing, the following activities and uses are expressly
prohibited, restricted or reserved as indicated hereunder:
A. Disturbance of Wetlands and Carnivorous Plants. Any change, disturbance, alteration or
impairment of the wetlands located on the Property or the carnivorous plants identified above,
any hunting, trapping, plant collecting, fishing or any introduction of non-native plants and/or
animal species is prohibited unless the Grantee and EPA shall give their prior written consent or
unless otherwise expressly permitted herein.
B. Construction and Residential Buildine. There shall be no constructing or placing of any
building, mobile home, road, driveway, asphalt or concrete pavement, bill board or other
advertising display, antenna, utility pole, tower, conduit, line, or any other temporary or
permanent structure or facility on or above the Property except for fencing, signage permitted in
Section F. hereafter, structures and improvements permitted in Section G. hereafter, or as
otherwise permitted by the Grantee and EPA. Residential construction/building on the Property
is prohibited.
C. Industrial and Commercial Use. Industrial and commercial activities, including any right
of passage used in conjunction Aith commercial or industrial activity are prohibited on the
Property.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and horticultural use
of the Property is prohibited, except that the non-commercial propagation of carnivorous and
native plants, grasses and trees and their continued maintenance on the Property are permitted.
E. Removal of Vegetation and Land Clearing. There may be no destruction or cutting of
trees or plants on the Property, except 1) to control insects, invasive non-native plants and
disease; 2) to clear and restore vegetative cover that has been damaged or disturbed by forces of
nature or otherwise; 3) to remove trees to the minimum extent necessary for the erection of
structures or installations of other improvement permitted under the terms of this Conservation
Easement, 41 to remove any hazardous vegetation affecting any road, trial or walkway or except
as otherwise provided in Article V. herein.
F. Si e. Display of billboards, signs or advertisements is prohibited on or over the
Property, except the posting of no trespassing signs, signs identifying the plant, conservation
characteristics and values of the Property, or other permitted use of the Property and/or signs
identifying the Grantor as owner of the Property and Grantee as the holder of a conservation
easement on the Property provided that the conservation values of the Property are protected.
G. Passive Recreational and Educational Use. The Property may be used for quiet
enjoyment, passive recreational and educational uses, including nature trails, open space and
outdoor environmental education, including but not limited to the construction, placement and
maintenance of interpretative pedestrian trails, lighting, trails for access by handicapped persons,
boardwalks, parking facilities, bathroom facilities, covered picnic pavilions, informational
kiosks, a shed or sheds for storage of maintenance equipment and materials solely related to
maintenance and management of the Property and underground utilities to serve the aforesaid
facilities; provided however, that:
1) No covered structures or pavement may be placed in any wetland areas on the Property;
and
2) The design, size and location of all such structures and improvements shall be subject to
the joint approval of the Grantor, the Grantee and EPA, which may not be unreasonably
withheld by any party;
Passive Recreational Use shall not include fields or courts for sports such as baseball, soccer,
basketball or tennis, use by motorized vehicles, nor any other recreational activity that interferes
with the open space and conservation values of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste, abandoned
vehicles, appliances, machinery or hazardous substances, or toxic or hazardous waste, or any
placement of underground or aboveground storage tanks or other materials on the Property is
prohibited.
1. Mineral Use. Excavation. Dredging. There shall be no grading, filling, excavation,
dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other
materials, and no change in the topography of the land in any mannLr on the Property, except to
maintain or restore natural hydrology, topography or drainage patterns or the carnivorous plant 1
4 J
habitat or incident to the activities permitted in Article III Sections B., E., G. and J. and Article V
hereof.
J. Water Qm y aW Drainage Pattern Subject to the Grantor's reserved rights contained in
Article IV, there shall be no activities conducted on the Property that would be detrimental to
water purity or any of the plants of special concern or habitats within the Property or that would
alter natural water levels, drainage, sedimentation and/or flow in or over the Property, or cause
soil degradation or erosion. Dicing, dredging, alteration, draining, filling or removal of wetland is
prohibited. Notwithstanding the above, Grantee has the right but not the obligation, at its sole
expense, to undertake such activities as are designed to maintain, protect or restore natural
drainage patterns, hydrology, wetland values or the carnivorous plant habitat. The parties
acknowledge that the flow of water over the Property from adjacent lands, whether or not owned
by the Grantor, shall not constitute a violation of this section J.
ARTICLE IV
GRANTOR'S ADDITIONAL RESERVED RIGHTS
The Grantor to its successors and assigns hereby reserves the right to quiet enjoyment of the
Property, the right to ingress and egress to the Property and all adjacent property of the Grantor,
the right to enjoy such uses as exist as of the date of this grant not inconsistent with this
Conservation Easement and the right to sell, transfer, gift or otherwise convey the Property, in
whole or in part, provided such sale, transfer or gift conveyance is subject to the terms of this
Conservation Easement and written notice is provided to Grantee in accordance with the
provisions herein below. Nothing contained in this Conservation Easement shall operate to
restrict or affect the flow of water over the Property from adjacent property, whether or not
owned by the Grantor. Grantor, or its successor, from adjacent property, whether developed or
undeveloped, shall be permitted to allow storm water runoff and drainage from said adjacent
property to run into, over and through the wetlands and all grounds which are the subject of this
Conservation Easement.
ARTICLE V
GRANTEE'S RIGHTS
The Grantee is hereby granted the right, but not the obligation, to develop an affirmative
management plan including passive recreational and outdoor environmental educational use,
ecological management, including thinning, clearing and re-planting of vegetation (provided that
any net profits from thinning are to be paid over to the Grantor), prescribed burns for the
wetlands, carnivorous plant habitat and any natural plant and animal conununities found to exist
on the Property together with the right of possession to irnpleirent said plan at Grantee's sole
expense, the right to conduct environmental education aril fund raising events for public
purposes, and the right to use, license, lease or contract its rights to possess and use the Property
for educational, scientific and charitable purposes consistent with the conservation purposes and
reserved rights of Grantor set fords in this Conservation Ease=nt including but not limited to
construction and nmintenance of structures and inTrovernents in accordance with the provisions
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set forth in Article IV, Section G. herein. Grantee is granted the right to preserve and protect in
perpetuity the existing condition of the Property. Grantee is also granted the right to enter the
Property during normal business hours for purposes of monitoring the terms of this Conservation
Easement.
ARTICLE VI
ENFORCEMENT AND REMEDIES
A. Upon any breach of the terms of this Conservation Easement by Grantor, its agents
successors, or assigns, which comes to the attention of the Grantee, the Grantee shall notify the
Grantor and EPA in writing of such breach. The Grantor shall have ninety (90) days after receipt
of such notice to undertake actions that are reasonably calculated to promptly correct the
conditions constituting such breach. If the breach remains uncured after ninety (90) days, the
Grantee may exercise any or all of the following remedies:
(i) Institute suits to enjoin any breach or enforce any covenant by temporary and/or permanent
injunction either prohibitive or mandatory and/or to recover any damages from injury to any
Conservation Values protected by this Conservation Easement, including damages for the loss of
scenic, aesthetic, historic or environmental values and attorneys fees if Grantee prevails; and
(ii) Require that the land be restored promptly to the condition required by this Conservation
Easement.
B. The Grantee has the right to prevent any activity on or use of the Property that is
inconsistent with the purpose of this Conservation Easement. Grantee's remedies shall be
cumulative and shall be in addition to any other rights and remedies available to Grantee at law
or equity. If Grantee, in its sole discretion, determines that circumstances require immediate
action to prevent or mitigate significant damage to the Conservation Values of the Property, the
Grantee may pursue its remedies without prior notice to Grantor, but shall exercise reasonable
efforts to notify Grantor.
C. No failure on the part of Grantee to enforce any covenant or provision hereof shall
discharge or invalidate such covenant or any other covenant, condition, or provision hereof or
affect the right to Grantee to enforce the same in the event of a subsequent breach or default.
D. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to
bring any action against Grantor for any injury or change in the Property resulting from causes
beyond the Grantor's control, including, without limitation, fire, flood, storm, war, acts of God or
third parties, except Grantor's lessees or invitees; or from any prudent action taken in good faith
by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life,
damage to property or harm to the Property resulting from such causes.
E. It is agreed by the parties hereto that the covenants, conditions, terms and restrictions
contained herein shall be binding upon the parties, their successors and assigns and shall
continue as a servitude running in perpetuity "Alith the Property. k J\
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F. The parties recognize the environmental, conservation, passive recreational and
educational values of the Property and have the common purpose of preserving these values.
Any general rule of construction to the contrary notwithstanding, this Conservation Easement
shall be liberally construed in favor of the grant to affect the conservation purposes set forth in
this Conservation Easement.
ARTICLE VII
PUBLIC ACCESS
The Property may be used by the General Public for passive recreational and educational
purposes consistent with the reserved rights of Grantor set forth in this Conservation Easement,
provided that if either party exercises the rights to construct structures and improvements for
passive recreational and educational use, that party shall establish and enforce reasonable rules
and regulations for public access.
ARTICLE VIII
EXHIBIT, DOCUMENTATION AND TITLE
A. Legal Desc peon. Exhibit A, Legal Description of the Property, is attached hereto and
made a part hereof by reference.
B. Title. The Grantor covenants and represents that the Grantor is the sole owner and is
seized of the Property in fee simple and has good right to grant and convey the aforesaid
Conservation Easement; that the Property is free and clear of any and all. encumbrances, except
easements, leases, restrictions, rights of way, if any, and government regulations of record or in
effect by prescriptive right as of the date hereof and Grantor covenants that the Grantee shall
have the use of and enjoy all of the benefits derived from and arising out of the aforesaid
Conservation Easement.
ARTICLE IX
MISCELLANEOUS
A. Subsequent Transfers. Grantor consents to the transfer or assignment by Grantee, its
successors and assigns to any assignee that is both a qualified holder of conservation easements
under N.C.G.S. 121-34 et seq. and an eligible donee of conservation easements as defined in 26
U.S.C. Section 170(h)(3) and the regulations promulgated thereunder. Grantor, its successors
and assigns, further agree to make specific reference to this Conservation Easement in a separate
paragraph of any subsequent lease, deed, or other legal instrument by which any interest in the
Property is conveyed.
B. Conservation Purpose.
I . Grantee, for itself, it successors and assigns, agrees that this Conservation Easement shall
he held exclusively for conservation purposes, as defined in 25 U.S.C. Section 170(h)(4)(a). '
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2. The Grantor and Grantee agree that the terms of this Conservation Easement shall
survive any merger of the fee and easement interests in the Property or any portion thereof.
3. The parties hereto recognize and agree that the benefits of this Conservation Easement
are in gross and assignable provided, however that the Grantee hereby covenants and agrees, that
in the event it transfers or assigns this Conservation Easement, the organization receiving the
interest will be a qualified holder under N.C.G.S. 121-34 et seq. and an eligible donee, as
defined in 26 U.S.C. Section 170(hx3) and the regulations promulgated thereunder, which is
organized or operated primarily for one of the conservation purposes specified in 26 U.S.C.
Section 170(h)(4XA), and Grantee further covenants and agrees that the terms of the transfer or
assignment will be such that the transferee or assignee will be required to continue out in
perpetuity the conservation purposes which the contribution was originally intended to advance,
set forth in Article I herein.
C. Construction of Terms. This Conservation Easement shall be construed to promote the
purposes of the North Carolina enabling statute set forth in N.C.G.S. 121-34 et seq., which
authorizes the creation of Conservation Easements for purposes including those set forth herein,
and the conservation purposes of this Conservation Easement, including such purposes as are
defined in 26 U.S.C. Section 170(hx4)(A).
D. Entire Agreement. This instrument sets forth the entire agreement of the parties with
respect to the Conservation Easement and supersedes all prior discussions, negotiations,
understandings or agreements relating to the Conservation Easement. If any provision is found to
be invalid, the remainder of the provisions of this Conservation Easement, and the application of
such provision to persons or circumstances other than those as to which is found to be invalid,
shall not be affected thereby.
E. Recordina. Grantee shall record this instrument and any amendment hereto in timely
fashion in the New Hanover, North Carolina, Registry and may re-record it at any time as may be
required to preserve its rights under this Conservation Easement.
F. Hazardous Waste. The Grantor covenants and represents that, to the best of Grantor's
knowledge, no hazardous substance or hazardous or toxic waste exists nor has been generated,
treated, stored, used, disposed of, or deposited in or on the Property and agrees to indemnify and
hold harmless the Grantee against any claims, liabilities, damages, losses and costs arising from
any such event, occurrence or condition at any time, except as caused by Grantee, its agents or
assigns, or by third parties who were not agents, contractors, lessees, or invitees of Grantor.
G. Notices. Any notices given under this Conservation Easement shall be in writing and
shall be delivered by depositing same in the U.S. Mail, certified, return receipt requested,
postage prepaid and addressed to the parties as set forth above, or to such other addresses any
such party may establish in writing to the others, pursuant to this Notice provision. In any case
where the terms of this Conservation Easement require the approval of either party, such
approval shall be requested by written notice. Such consent shall be deemed to have been given `
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within forty-five (45) days after the recipient receives or refused notice, unless the party
requesting approval has actually received or refused notice of disapproval. Notice of any
proposed activity by either Grantor or Grantee shall include plans depicting, in such detail as the
other party reasonably requests, the construction or other use or activity and location thereof.
H. Grantor's. Grantee's and EPA's Approvals. If Grantor, Grantee or EPA approves any
construction, use or activity or grants such approval with conditions, then said approval shall
constitute a covenant to exercise the right solely in accordance with the notice and other
information provided; which covenant shall be enforceable as fully as if set forth in this
Conservation Easement. Unless a longer period is expressly provided in writing, any
construction or activity approved by a party shall be completed within five years after the written
determination of approval of the said construction or activity. Grantee's right of discretionary
approvals provided herein may be exercised if Grantee is satisfied that any use or activity
proposed will have no material adverse effect on the conservation values of this Conservation
Easement as described in the Recitals herein.
1. Amendments. Grantor and Grantee are free to jointly amend this Conservation Easement
in writing to meet changing conditions, subject to the prior written approval of the United States
Environmental Protection Agency, provided that no amendment will be allowed that is
inconsistent with the purposes of this Conservation Easement. The United States Environmental
Protection Agency agrees not to unreasonably withhold approval of any amendment. Such
amendment(s) shall be effective upon recording in the New Hanover County, North Carolina
Registry.
J. Severability. Should any provision of this Conservation Easement be declared by any
tribunal of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity,
and enforceability of the remaining parts, terms or provisions shall not be affected thereby, and
said illegal, unenforceable, or invalid part, term, or provision shall be deemed not to be a part of
this Conservation Easement.
K. Governing Law. This Conservation Easement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
L. Headings. The headings contained in this Conservation Easement are for reference
purposes only and shall not affect the meaning or interpretation hereof.
TO HAVE AND TO HOLD unto NORTH CAROLINA COASTAL LAND TRUST, its
successors and assigns forever. The covenants agreed to and the terms, conditions, restrictions
and purposes imposed as aforesaid shall be binding upon Grantor, Grantor's personal
representatives, successors and assigns, and shall continue as a servitude in perpetuity with the
Property.
I WITNESS );VMRE F, the parties hereto have set their hand and seals and caused these
presents to be executed in their respective names by authority duly given, and their seal affixed,
the day and year above first written. 1
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Secretary
GRANTOR:
THE OLEANDER COMPANY, INC.
a North Carolina Corporation
BY:
President
GRANTEE:
NORTH CAROLINA COASTAL
LAND TRUST, a Non-Profit
North Caro4fia. Corporation
BY:
President
,retary
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
I, L I ndc",' L Lw i ?A-S , a Notary Public of the State and County aforesaid, certify
that&y-dSj n3 .SmtV 4x'rsonally came before me this day and acknowledged that s/he is
Secretary of THE OLEANDER COMPANY, INC., a North Carolina corporation,
and that by authority duly given and as the act of the corporation, the foregoing instrument was
signed in its name by its President, sealed with its corporate seal, and attested by himself/herself
as its Secretary.
Witness my hand and official seal this the o? day of , 2002.
L ? .J
Notary Public J
My Commission Expires r
oi? Ul tUM
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
I, L I r'If-t c-" ? - ?--S& /LS , a Notary Public of the State and County aforesaid, certify
that Camilla M. Herlevich personally came before me this day and acknowledged that she is
Assistant Secretary of North Carolina Land Trust, a non-profit North Carolina corporation, and
that by authority duly given and as the act of the corporation, the foregoing instrument was
signed in its name by its Vke President, sealed with its corporate seal, and attested by herself as
its Assistant Secretary.
Witness my hand and official seal this the a-3 day of 2002.
Notary Public
My Commission Expires: aA CL , a--0 n ;;Ctx 6B/1l
ho "kMbe
STATE OF NORTH CAROLINA
NEW HANOVER COUNTY
The Foregoing (or annexed) Certificate(s) of
Notary(ies) Public (isxare) Certified to be correct.
This instrument was filed for Registration on the Day and Hour in the Book and Page shown in
the First page hereof.
This instrument prepared by and return to:
Camilla M. Herlevich, Attorney at Law
North Carolina Coastal Land Trust
3806-B Park Avenue
Wilmington, North Carolina 28403
Ila Puhio • N" Carolina
M ft fM7 4Na OVER
, Register of Deeds
I1
EXMBBI'T A
A certain tract or parcel of land lying and being in the City of Wilmington, New Hanover
County, North Carolina, and being part of The Oleander Company tract as described in Deed
Book 0531, Page 0067, records of New Hanover County, North Carolina, and being more
particularly described as follows:
Beginning at an iron at the southeastern comer of the Alderman School tract (New Hanover
County Board of Education), said iron is located S 85-21-00 E 750.00 ft. from the eastern right
of way of Independence Boulevard, said right of way point is located 900 ft. south of the
southern right of way of Canterbury Road: Proceed from said point of beginning and with the
eastern line of said school tract N 04-37-23 E 69.38 ft. to a point, thence leaving said school line
and new lines S 72-0348 E 103.56 ft., S 65-53-40 E 54.30 ft., N 12-16-11 E 19.13 ft., N 05-25-
52 E 342.04 ft., S 72-32-47 E 47.79 ft., S 04-12-10 W 344.95 ft., S 71-59-12 E 60.19 ft., N 49-
39-46 E 61.81 ft., N 36-03-10 E 38.74 ft., N 26-45-50 E 100.20 ft., N 15-24-47 W 44.55 ft., N
06-59-32 W 56.20 ft., N 27-23-33 E 44.88 ft., N 44-15-11 E 23.04 ft. to a point in the southern
line of Lincoln Forest (Map Book 9, Page 15), thence with the southern line of Lincoln Forest S
47-00-57 E 274.97 ft. to a point, thence N 42-59-03 E 150.00 ft. to a point on the southern right
of way of Canterbury Road, thence S 47-00-57 E 60.10 ft., thence S 42-48-03 W 40.00 ft. to a
point, thence with the southern line of Lincoln Forest (Map Book 12, Page 23) S 47-00-57 E
200.00 ft., N 42-48-03 E 350.00 ft., S 47-11-58 E 1,537.27 ft. to a point in the line of said
Oleander Company tract, thence with said line S 42-32-03 W 144.94 ft. to a point, thence leaving
said line and new lines N 55-29-17 W 153.44 ft., thence S 89-03-05 W 133.80 ft., thence S 83-
12-13 W 124.91 ft., thence S 57-15-29 W 86.05 ft., thence S 31-36-55 W 148.70 ft., thence S 20-
51-30 W 126.95 ft., thence S 31-42-52 W 45.75 ft., thence N 67-27-31 W 1,699.68 ft. to an iron,
thence N 04-39-00 E 476.54 ft. to the point of beginning and containing 39.67 acres.
REBECCA T. CHRISTIAN
REGISTER OF DEEDS, NEW HANOVER
JUDICIAL BUILDING
316 PRINCESS STREET
WILMINGTON, NC 28401
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Filed For Registration: 07/011200210:58:11 AM
Book: RE 3348 Page: 985-997
Document No.: 2002033130
ESMNT 13 PGS $47.00
Recorder: PATRICIA BARNES
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State of North Carolina, County of New Hanover
The foregoing certificate of LINDA C LYONS Notary Is certified to be correct. This 1 ST of July 2002
RISTIAN, REGISTER OF DEEDS
Registe of Deeds
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2002033130