HomeMy WebLinkAbout20090858 Ver 3_Conservation Easements_20140218STATE OF NORTH CAROLINA
COUNTY OF ORANGE
ASSIGNMENT AND ASSUMPTION OF CONSERVATION EASEMENT
AND RELATED DOCUMENTS
ENVIRONMENTAL BANC AND EXCHANGE, LLC, a Maryland limited liability
company (the "Assignor'), having an address of 10055 Red Run Blvd., Suite 130,
Owings Mills, MD 21117, hereby sells, transfers, assigns, and conveys to NORTH
CAROLINA WILDLIFE HABITAT FOUNDATION, a North Carolina 501C3
organization (the "Assignee "), having an address of PO Box 29187, Greensboro N.C.
27429, without recourse or warranty, express or implied, all of Assignor's right, title, and
interest in and to the easements (whether one or more, herein so called) identified in
Exhibit A, attached hereto and made a part hereof, including any amendments,
supplements and restatements thereof (collectively, the "Easement Documents ").
Assignee hereby agrees to such assignment and assumes all of Assignor's right, title, and
interest in and to the Easement Documents. Assignee acknowledges and agrees that the
Easement Documents require Assignee to continue in perpetuity the conservation
purposes described in the Easement Documents.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Assignment is executed by Assignor and
Assignee effective as of the Zq day of X�_ , 2013.
ENVIRONMENT
a Marvlanl
IM-Nd
STATE OF bPA&Wtm-e
COUNTY OF SS&
BANC AND EXCHANGE, LLC,
ifbility company
I, the undersigned, a Notary Public of the County and State aforesaid, certify that the
following person(s) personally appeared before me this day, and
I have personal knowledge of the identity of the principal(s)
❑ I have seen satisfactory evidence of the principal's identity, by a current
state or federal identification with the principal's photograph in the form
of a
❑ A credible witness has sworn to the identity of the principal(s);
acknowledging to me that he or she voluntarily signed the foregoing document for the
purpose stated therein and in the capacity indicated:
[insert name of principal].
Date: 7-2-- -2 b l I>
Public
(print name)
(official seal) My commission expires:
THOMAS A. ROTH
Notary Public
State of Delaware
My Commission Expires on May 28, 2014
NORTH CAROLINA WILDLIFE HABITAT FOUNDATION
a North Carolina 501(C)3 Organization
5
BY: 2AOL I
Name: Inl & WIC V ,,
Title: GZS L c�,r
STATE OF
COUNTY OF ur�
I, the undersigned, a Notary Public of the County and State aforesaid, certify that the
following person(s) personally appeared before me this day, and
Er I have personal knowledge of the identity of the principal(s)
❑ I have seen satisfactory evidence of the principal's identity, by a current
state or federal identification with the principal's photograph in the form
of a
El
A credible witness has sworn to the identity of the principal(s);
acknowledging to me that he or she voluntarily signed the f r going document for the
purpose stated therein and in the capacity indicated:_, rl Stay 10.v� S
[insert name of principal].
Date: - /3
Public
(official seal)
KELLY F. PERRYMAN
Notary Public, North Carolina
Davidson County
My C1ommission Ex ires
---� - -1 ---
h F rnQn, Notary
(print name)
My commission expires:
Exhibit A
Conservation Easement dated January P, 2013 by and between Virginia I. Ferguson
(unmarried) and Elizabeth M. Ivey (unmarried), husband and wife and Environmental
Banc and Exchange, LLC, a Maryland limited liability company, recorded on January 10,
2013 at Book RB5522, Page 317, Orange County Registry.
Prepared by and return fo: EBX, LLC
909 Capability Dr., Suite 3100
Raleigh, NC 27606
NORTH CAROLINA
ORANGE COUNTY
20130110000007030 WINS
Bk:RB5522 Pg:317
01/10/2013 10:11:08 PM 1110
FILED Deborah S. Brooks
Resister of Deeds, Orange Co,NC
Resorting Fee: $26.00 / f�J+l
NC Real Estate TX: $.00
60 9x15 ? - 03- 4631
P/o q7.5,?- 33- r78 36a
Plo ggsjr- 61-ao5sA6
AMENDED AND RESTATED
PERMANENT CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT ( "Conservation Easement ") made this 3rd day of
January, 2013 by and between Virginia I. Ferguson (unmarried) and Elizabeth M Ivey_
(unmarried), ( "Grantor ") and Environmental Banc and Exchange LLC (Address of
Grantee: 10055 Red Run Blvd, Ste 130 Owings Mills MD 21117) ( "Grantee ").
The designation Grantor and Grantee as used herein shall include said parties, their heirs,
successors and assigns, and shall include singular, plural, masculine, feminine or neuter
as required by context.
RECITALS
WHEREAS, Grantor owns in fee simple certain real property situated, lying and being in
Orange County, North Carolina, more particularly described in Exhibit A attached hereto
and incorporated herein ("Property);
WHEREAS, Grantor and Grantee recognize the conservation, scenic, natural, or aesthetic
value of the property in its natural state, which includes the following natural
communities: riparian buffer areas adjacent to streams and drainage -ways. The purpose
of this Conservation Easement is to maintain wetland and/or riparian resources and other
natural values of the Property, and prevent the use or development of the Property for any
purpose or in any manner that would conflict with the maintenance of the Property in its
natural condition.
NOW, THEREFORE, for and in consideration of the covenants and representations
contained herein and for other good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, Grantor hereby unconditionally and
irrevocably grants and conveys unto Grantee, its heirs, successors and assigns, forever
R85822 318 2110
and in perpetuity a Conservation Easement of the nature and character and to the extent
hereinafter set forth, over the Property described on Exhibit A, together with the right to
preserve and protect the conservation values thereof, as follows:
ARTICLE I.
DURATION OF EASEMENT
This Conservation Easement shall be perpetual. This conservation Easement is an
easement in gross, runs with the land and is enforceable by Grantee against Grantor,
Grantor's personal representatives, heirs, successors and assigns, lessees, agents and
licensees.
ARTICLE II.
PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purpose of this Conservation
Easement is prohibited. The Property shall be preserved in its natural condition and
restricted from any development that would impair or interfere with the conservation
values of the Property.
Without Iimiting the generality of the foregoing, the following activities and uses are
expressly prohibited, restricted or reserved as indicated hereunder:
A. Disturbance of Natural Features. Any change disturbance, alteration or impairment of
the natural features of the Property or any introduction of non -native plants and/or animal
species is prohibited.
B. Construction. There shall be no construction or placing of any building, mobile
home, asphalt or concrete pavement, billboard or other advertising display, antenna,
utility pole, tower, conduit, line, pier, landing, dock or any other temporary or permanent
structure or facility on or above the Property.
C. Industrial. Commercial and Residential Use. Industrial, residential and /or commercial
activities, including any right of passage for such purposes are prohibited.
D. Agricultural. Grazing and Horticultural Use. Agricultural, grazing, animal
husbandry, and horticultural use of the Property are prohibited.
E. Ve etation. There shall be no removal, burning, destruction, harming, cutting or
mowing of trees, shrubs, or other vegetation on the Property.
F. Roads and Trails. There shall be no construction of roads, trails or walkways on the
property; nor enlargement or modification to existing roads, trails or walkways.
G. SiQnaee. 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
RB5622 319 3110
giving directions or proscribing rules and regulation for the use of the Property and/or
signs identifying the Grantor as owner 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.
I. Excavation. Dredeing 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 in the topography of the land in any manner on the
Property, except to restore natural topography or drainage patterns,
J. Water Quality and Drainage Pattern. There shall be no diking, drainage, 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.
K. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Easement shall be transferred pursuant to a
transferable development rights scheme or cluster development arrangement or
otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all- terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is or may
become inconsistent with the purposes of this grant, the preservation of the Property
substantially in its natural condition, or the protection of its environmental systems, is
prohibited.
ARTICLE III
GRANTOR'S RESERVERED RIGHTS
The Grantor expressly reserves for herself, her personal representatives, heirs,
successors or assigns, the right to continue the use of the property for all purposes not
inconsistent with this Conservation Easement, including, but not limited to, the right to
quiet enjoyment of the Property, the rights of ingress and egress, the right to hunt, fish,
and hike on the Property, 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, and shall specifically reference, this Conservation Easement.
RB5522 320 4/10
Notwithstanding the foregoing Restrictions, Grantor reserves for Grantee, its
successors and assigns, the right to construct a nutrient offset mitigation bank on the
Property, in accordance with the "Agreement to Establish the Cape Fear Riparian Buffer
and Nutrient Mitigation Umbrella Banking Instrument HUC 030300" and the Ivey -
Ferguson Bank Parcel -Bank Parcel Development Package" both submitted August, 2009.
ARTICLE IV
GRANTEE'S RIGHTS
The Grantee or its authorized representatives, successors and assigns, and the North
Carolina Division of Water Quality (the "DWQ ") shall have the right to enter the
Property at all reasonable times for the purpose of inspecting said property to determine if
the Grantor, or his personal representatives, heirs, successors, or assigns, is complying
with the terms, conditions, restrictions, and purposes of this Conservation Easement. The
Grantee shall also have the right to enter and go upon the Property for Purposes of
making scientific or educational observations and studies, and taking samples. The
easement rights granted herein do not include public access rights.
ARTICLE V
ENFORCEMENT AND REMEDIES
A. To accomplish the purposes of this Easement, Grantee is allowed to prevent any
activity on or use of the property that is inconsistent with the purposes of this Easement
and to require the restoration of such areas or features of the Property that may be
damaged by such activity or use. Upon any breach of the terms of this Conservation
Easement by Grantor that comes to the attention of the Grantee, the Grantee shall notify
the Grantor in writing of such breach. The Grantor shall have 30 days after receipt of
such notice to correct the conditions constituting such breach. If the breach remains
uncured after 30 days, the Grantee may enforce this Conservation Easement by
appropriate legal proceedings including damages, injunctive and other relief.
Notwithstanding the foregoing, the Grantee reserves the immediate right, without notice,
to obtain a temporary restraining order, injunctive or other appropriate relief if the breach
of the tern of this Conservation Easement is or would irreversibly or otherwise
materially impair the benefits to be derived from this Conservation Easement. The
Grantor and Grantee acknowledge that under such circumstances damage to the Grantee
would be irreparable and remedies at law will be inadequate. The rights and remedies of
the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights
and remedies available to Grantee in connection with this Conservation Easement. The
costs of a breach, correction or restoration, including the Grantee's expenses, court costs,
and attorneys' fees, shall be paid by Grantor, provided Grantor is determined to be
responsible for the breach. The Corps shall have the same right to enforce the terms and
conditions of this easement as the Grantee. The DWQ shall have the same right to
enforce the terms and conditions of this easement as the Grantee.
101111010
RB5522 321 5/10
B. No failure on the part of the 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.
C. 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.
ARTICLE VI
MISCELLANEOUS
A. Warranty. Grantor warrants, covenants and represents that it owns Property in fee
simple, and that Grantor either owns all interests in the Property which may be impaired
by the granting of this Conservation Easement or that there are no outstanding mortgage,
tax liens, encumbrances, or other interests in the Property which have not been expressly
subordinated to this Conservation Easement. Grantor further warrants that Grantee shall
have the use of and enjoy all the benefits derived from and arising out of this
Conservation Easement, and that Grantor will warrant and defend title to the Property
against the claims of all persons.
B. Subsequent Transfers. The Grantor agrees to incorporate the terms of this
Conservation Easement in any deed or other legal instrument that transfers any interest in
all or a portion of the Property. The Grantor agrees to provide written notice of such
transfer at least thirty (30) days prior to the date of the transfer. 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 and shall not be amended,
modified or terminated without the prior written consent and approval of the Corps.
C. Assignment. The parties recognize and agree that the benefits of this Conservation
Easement are in gross and assignable provide, 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. Gen. Stat, § 121-
34 et seq. and § 170(h) of the Internal Revenue Code, and the 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 in perpetuity the conservation purposes described in
this document.
D. Entire Agreement and Severability. 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
R85522 322 6/10
Easement. If any provision is found to be void or unenforceable by a court of competent
jurisdiction, the remainder shall continue in full force and effect.
E. Obligations of Ownership. Grantor is responsible for any real estate taxes,
assessments, fees, or charges levied upon Property. Grantor shall keep the Property free
of any liens or other encumbrances for obligations incurred by Grantor. Grantee shall not
be responsible for any costs or liability of any kind related to the ownership, operation,
insurance, upkeep, or maintenance of the Property, except as expressly provided herein.
Northing herein shall relieve the Grantor of the obligation to comply with federal, state or
local laws, regulations and permits that may apply to the exercise of the Reserved Rights.
F. Extinguishment. In the event that changed conditions render impossible the continued
use of the Property for the conservation purposes, this Conservation Easement may only
be extinguisher, in whole or in part, by judicial proceeding.
G. Eminent Domain. Whenever all or part of the Property is taken in the exercise of
eminent domain so as to substantially abrogate the Restrictions imposed by this
Conservation Easement, Grantor and Grantee shall join in appropriate actions at the time
of such taking to recover the full value of the taking, and all incidental and direct
damages due to the taking.
H. Proceeds. This Conservation Easement constitutes a real property interest
immediately vested in Grantee. In the event that all or a portion of this Property is sold,
exchanged, or involuntarily converted following an extinguishment or the exercise of
eminent domain, Grantee shall be entitled to the fair market value of this Conservation
Easement. The parties stipulate that the fair market value of this Conservation Easement
shall be determined by multiplying the fair market value of the Property unencumbered
by this Conservation Easement (minus any increase in value after the date of this grant
attributable to improvements) by the ratio of the value of this easement at the time of this
grant to the value of the Property (without deduction for the value of this Conservation
Easement) at the time of this grant. The values at the time of this grant shall be the
values used, or which would have been used, to calculate a deduction for federal income
tax purposes, pursuant to Section 170(h) of the Internal Revenue Code (whether eligible
or ineligible for such a deduction). Grantee shall use its share of the proceeds in a matter
consistent with the purposes of this Conservation Easement.
I. Notification. Any notice, request for approval, or other communication required under
this Conservation Easement shall be sent by registered or certified mail, postage prepaid,
to the following address (or such address as may be hereafter specified by notice pursuant
to this paragraph):
Grantor: Virginia I. Ferguson
1616 Carl Durham Road
Chapel Hill, NC 27516
Grantee: Environmental Banc and Exchange, LLC
10055 Red Run Blvd, Ste 130
Owings Mills, MD 21117 IIRB552I2 323 17/12 VIII IIII�IIlllll�llll
J. Failure of Grantee. If at any time Grantee is unable or fails to enforce this
Conservation Easement, or if Grantee ceases to be a qualified grantee, and if within a
reasonable period of time after the occurrence of one of these events Grantee fails to
make an assignment pursuant to this Conservation Easement, then the Grantee's interest
shall become vested in another qualified grantee in accordance with an appropriate
proceeding in a court of competent jurisdiction.
K. Amendment. This Conservation Easement may be amended, but only in writing
signed by all parties hereto, and provided such amendment does not affect the
qualification of this Conservation Easement or the status of the Grantee under any
applicable laws, and is consistent with the conservation purposes of this grant.
TO HAVE AND TO HOLD the said rights and easement perpetually unto Grantee for the
aforesaid purposes.
IN TESTIMONY WHEREOF, the Grantor has hereunto set his hand and seal, the day
and year first above written.
a�- xy k!z- (SEAL)
E izabeth M. Ivey
(SEAL)
VirginiCl. Ferguson
State of North Carolina
County of {-i 0sric,-w-<-CC.
I, CQ ',GYVi n , a Notary Public of the County and State aforesaid do
hereby certify that Virginia I. Ferguson personally appeared before me this day and
acknowledged the due execution of the foregoing instrument for the purposes therein
expressed.
Witness my hand and notarial seal this 3 day of 1 201-5
Notary Public
My Comm. expires: \`\o� °�P� \B
(SEAL) 0 IQ RY 2
Z
State of North Carolina = B� \c a
County of (�(w^�Q % 9'�. Pu
a Notary PublicV /fi$ 'State aforesaid
do hereby certify that Elizabeth M. Ivey personally appeai'E04✓ ;$o`*eme this day and
RB5522 324 8/10
acknowledged the due execution of the foregoing instrument for the purposes therein
expressed.
Witness my hand and notarial seal this 3 day of ChnLA 2011
Notary blic
My comm. expires: Oq ........
(SEAL)
S y NOTARY Z
r
y PUBLIC
�/G CF C O01 � ��._
IIRB5522 3215 911 UlllllllllIllllllllllllIII
TRACT
Being all of Conservation Easement 1 containing 273,427 square feet as shown on
plat and survey thereof entitled " Conservation Easement Elizabeth M. Ivey and Virginia
I. Ferguson Property" by The John R. McAdams Company, Inc. dated 3/17/11 and
recorded in Plat Book 109, pages 180 -183, Orange County Registry.
TRACT II
Being all of Conservation Easement 2 containing 138,922 square feet as shown on
plat and survey thereof entitled " Conservation Easement Elizabeth M. Ivey and Virginia
I. Ferguson Property" by The John R. McAdams Company, Inc. dated 3/17/11 and
recorded in Plat Book 109, pages 180 -183, Orange County Registry.
TRACT III
Being all of ConservatiowBuffer Restoration Area 3 Easement containing 2,730
square feet as shown on plat and survey thereof entitled " Conservation Easement
Elizabeth M. Ivey and Virginia I. Ferguson Property" by The John R. McAdams
Company, Inc. dated 3/17/11 and recorded in Plat Book 109, pages 180 -183, Orange
County Registry.
TRACT IV
Being all of Conservation Easement 4 containing 71,344 square feet as shown on
plat and survey thereof entitled " Conservation Easement Elizabeth M. Ivey and Virginia
I. Ferguson Property" by The John R McAdams Company, Inc. dated 3/17/11 and
recorded in Plat Book 109, pages 180 -183, Orange County Registry.
TRACT V
Being all of Conservation/Buffer Restoration Area 5 Easement containing 31,600
square feet as shown on plat and survey thereof entitled " Conservation Easement
Elizabeth M. Ivey and Virginia I. Ferguson Property" by The John R. McAdams
Company, Inc. dated 3/17/11 and recorded in Plat Book 109, pages 180 -183, Orange
County Registry.
TRACT VI
Being all of Conservation/Buffer Restoration Area 6 Easement containing 19,251
square feet as shown on plat and survey thereof entitled " Conservation Easement
Elizabeth M. Ivey and Virginia I. Ferguson Property" by The John R. McAdams
Company, Inc, dated 3/17/11 and recorded in Plat Book 109, pages 180 -183, Orange
County Registry.
RB05522 5522IU1� 326 1061011��������������������������
R/10
TRACT VII
Being all of Conservation/Buffer Restoration Area 7 Easement containing 35,922
square feet as shown on plat and survey thereof entitled " Conservation Easement
Elizabeth M. Ivey and Virginia I. Ferguson Property" by The John R. McAdams
Company, Inc. dated 3/17/11 and recorded in Plat Book 109, pages 180 -183, Orange
County Registry.
TRACT VIII
Being all of Conservation/Buffer Restoration Area 9 Easement containing 24,784
square feet as shown on plat and survey thereof entitled " Conservation Easement
Elizabeth M. Ivey and Virginia I. Ferguson Property" by The John R. McAdams
Company, Inc. dated 3/17/11 and recorded in Plat Book 109, pages 180 -183, Orange
County Registry.