20070047 Ver 1_Agreement_20071222

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STATE OF NORTH CAROLINA
COUNTY OF BRUNSWICK
AGREEMENT
This AGREEMENT (hereinafter, "Agreement") is entered into this 22nd day of
December, 2006, by and between RESERVE DEVELOPMENT CO., LLC (hereinafter,
"RDC"), and THE NORTH CAROLINA DEPARTMENT OF TRANSPORTATION
(hereinafter, "NCDOT").
WITNESSETH: ~
WHEREAS, RDC acquired certain real property more particularly described in
Deed Book 2021, Page 1343, and Deed Book 2021, Page 1345 of the Brunswick County
Register of Deeds Office (such property, excepting portions thereof as have been
subsequently conveyed by RDC, is hereinafter referred to as the "Property");
WHEREAS, RDC desires to grant, and NCDOT desires to hold, a conservation
easement over approximately 400 acres of the Property, shown as "North Bay," "East
Bay," "Wildlife Corridor 1," and "Wildlife Corridor 2" on Exhibit A attached hereto
(hereinafter, the "Conservation Easement Area"). The Conservation Easement Area shall
be more definitely determined after delineation of wetlands is complete and after a survey
of the boundazies is complete, as discussed below in paragraph 1.
WHEREAS, the Conservation Easement Area provides natural wildlife habitat
for a wide vaziety of land, air and aquatic species, and many of these species are of great
importance to RDC and the people of North Cazolina;
WHEREAS, NCDOT plans to construct a controlled access highway connecting
North Carolina State Highway 211 to the Town of Oak Island, Brunswick County,
thereby providing a second access point to the Town of Oak Island (hereinafter, the
"Proposed Highway"};
WHEREAS, the Proposed Highway will be located adjacent or in close
proximity to the Conservation Easement Area;
WHEREAS, NCDOT has agreed to allow RDC to access the Proposed Highway
via a controlled access corridor in exchange for the grant to NCDOT of a perpetual
Conservation Easement over the Conservation Easement Area, thereby restricting and
limiting the use of land within the Conservation Easement Area substantially according to
the terms and conditions set forth in the conservation easement form attached hereto as
Exhibit C; and,
WHEREAS, RDC has agreed to the conditions set forth below regarding access
to the Proposed Highway.

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
agreements set forth below and other good and valuable consideration, the receipt and
sufficiency of which aze hereby acknowledged, the parties agree as follows:
1. Conservation Easement. RDC hereby agrees to grant to NCDOT a
perpetual Conservation Easement for the areas identified on Exhibit A as "NorthBay,"
"EastBay," "Wildlife Comdor 1," and "Wildlife Corridor 2," the Conservation Easement
Area. The parties agree that said Area shall be more definitively determined after
delineation of wetlands is complete and after a survey of the boundaries is complete. The
terms and conditions of the Conservation Easement shall be substantially similaz to the
terms and conditions set forth in the conservation easement form attached hereto as
Exhibit C. However, both parties understand and agree that Exhibit C will be provided to
the United States Army Corps of Engineers (hereinafter, "USAGE") and to the North
Cazolina Depaztment of Environment and Natural Resources, Division of Water Quality
(hereinafter, "DWQ"), in connection with applications for permits required for the
Proposed Highway pursuant to the Clean Water Act. If either the USAGE or DWQ
request changes to the language of the easement in order to grant the permit, both parties
agree they will revise the Conservation Easement accordingly, provided that the
Conservation Easement shall not be changed or revised in any way that would adversely
affect or limit RDC's ability or right to develop its land adjacent to the Conservation
Easement Area.
2. Controlled Access Road.
(a) In exchange for the grant of the Conservation Easement, NCDOT hereby
agrees to allow RDC to access the Proposed Highway via a road, having full control of
access rights (hereinafter, "Controlled Access Road"), to be constructed by RDC within
the Control of Access Corridor depicted on Exhibit B attached hereto (hereinafter,
"Corridor" or "ACC3"). The exact specifications for the Corridor will be shown on the
final right of way plans, which are to be certified and recorded in the Office of the
Register of Deeds for Brunswick County pursuant to N.C.G. S. § 136-19.4. As part of the
construction of the Proposed Highway, NCDOT will construct a full movement median
opening on the mainline of the Proposed Highway for access to the Corridor, as shown on
Exhibit D attached hereto. However, NCDOT reserves the right to modify or remove the
full movement median opening in the future, without any compensation to RDC.
(b) The USAGE verified NCDOT's delineation of the wetlands in the Corridor
on October 26, 2004. On June 29, 2006, NCDOT applied for a Section 404 permit from
the USAGE to authorize the discharge of dredged and fill material into waters of the
United States in connection with the Proposed Highway Project. Due to changes in the
alignment of the ACC3 corridor, NCDOT will be sending a revised permit application to
the USAGE, requesting authorization to permanently impact (through fill and
mechanized clearing) 1.56 acres of wetlands and temporarily impact (through hand
cleazing) 0.28 acres of wetlands at Site 22, which includes the ACC3 corridor, as shown
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on Exhibit D. The permit has not yet been issued. The permit is expected to have an
expiration date of three (3) years from the date of issuance.
(c) RDC will be solely responsible for planning, design, and construction of the
Controlled Access Road within the ACC3 Comdor, including obtaining any and all
permits necessary for the construction of the Controlled Access Road; provided,
however, that NCDOT shall construct a wildlife crossing within the Corridor and shall
install control of access fencing along the Corridor. As part of building the wildlife
crossing, NCDOT will install four (4) sixty inch (60") by forty-six inch (46") corrugated
aluminum pipe arches, spread evenly across the width of the wildlife corridor, with a
continuous aluminum barrier on both ends. NCDOT will provide temporary erosion and
sediment control necessary for said construction and will perform necessary grading.
operations and place compacted fill over the wildlife crossing pipes with a depth of not
less than 12" at the pipe end junctions with the aluminum barrier and not less than 24"
over the top of the pipes at the centerline of the corridor where the Controlled Access
Road will be built. The elevation of the filled area over the wildlife crossing pipes will
tie to the finish grade of the Proposed Highway on the west end and on the east end will
tie down to existing grade in a manner that will facilitate construction of the Controlled
Access Road in the future.
(d) At the request of RDC, NCDOT will provide coordination through the
driveway permit application process referenced below for RDC's planning and design of
the Controlled Access Road as it relates to the final design and construction of the
Proposed Highway. The application for a driveway access permit shall be made in
accordance with the North Carolina Department of Transportation's "Policy On Street
and Driveway Access to North Cazolina Highways" in effect at the time of such
application, subject to the rules, regulations, conditions, specifications, and permit
processes of the NCDOT and those of any local governments, including but not limited to
the submission to, and approval by, such governmental entities of a proposed site
development and traffic plan. NCDOT will not unreasonably delay consideration of the
application for the driveway access permit.
(e) RDC must obtain an approved driveway access permit from NCDOT prior
to beginning construction of any portion of the Controlled Access Road. Further,
construction of the first 300' of the Controlled Access Road, measured from its
intersection with the proposed right of way boundary of the mainline of the Proposed
Highway, may begin only after the completion and acceptance of the construction of the
Proposed Highway; or may begin eazlier after the wildlife crossings have been
constructed, if the contractor responsible for construction of the Proposed Highway so
agrees in writing. RDC may begin construction of the portion of the Controlled Access
Road that is greater than 300' from the intersection with the proposed right of way
boundary of the mainline of the Proposed Highway prior to completion of the wildlife
crossings, so long as such construction does not interfere with NCDOT's construction of
the wildlife crossings. The Controlled Access Road may not be opened to traffic until
after the Proposed Highway is completed or until NCDOT has given RDC written
permission to open the road.
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(f) The Controlled Access Road must be built in accordance with the right-of-
way and construction standazds contained in the North Carolina Department of
Transportation's "Subdivision Roads Minimum Construction Standards" manual in effect
at the time of the application for the driveway access permit, and must be built in
accordance with any conditions of the approved driveway access permit. RDC may be
required to construct a deceleration lane on the mainline of the Proposed Highway on the
southern approach to the Controlled Access Road. As shown on Exhibit D, NCDOT has
requested authorization to permanently impact, through fill and mechanized clearing,
wetlands up to ten feet beyond the slope stake line along the southern approach to ACC3
and within the ACC3 comdor itself. NCDOT will coordinate with RDC regarding
the design of the deceleration lane and will strongly consider allowing a design exception
for the deceleration lane, if necessary, to avoid and minimize any additional wetland
impacts that may be incurred by RDC in construction of the deceleration lane. If
additional impacts cannot be avoided, NCDOT will provide information and coordination
regarding NCDOT's wetland impacts and mitigation to RDC and/or NCDENR and the
USACE to facilitate RDC with any required wetland permit application or modification.
Upon completion of the Controlled Access Road in accordance with this Agreement,
NCDOT will accept the Controlled Access Road onto the State Highway System for
maintenance, subject to approval by the Boazd of Transportation.
3. Access and Inspection. The parties acknowledge that NCDOT has
already inspected the Conservation Easement Area and determined that it has the
requisite qualities, characteristics and natural values to make it appropriate for the
purposes of the Conservation Easement. Notwithstanding the above, between the date of
this Agreement and the Closing, defined below, NCDOT and NCDOT's agents,
employees, contractors, representatives and other designees (collectively, "NCDOT's
Designees") shall have the right to enter the Property for the purposes of inspecting the
Conservation Easement Area, conducting soil tests, conducting surveys, engineering
studies, and conducting any other investigations, examinations, tests and inspections as
NCDOT may reasonably require to assess the condition of the Conservation Easement
Area.
4. Escrow; Closins. At the time this Agreement is signed, RDC will also be
signing a deed for the right of way necessary to construct the Proposed Highway and a
deed for two tracts isolated by the Proposed Highway, and obtaining a release deed for
such right of way and two tracts. The two deeds and the release shall be held in escrow
and shall not be released or recorded until NCDOT has paid the purchase prices as
specified in the deeds.
The Closing of the transfer of the Conservation Easement shall be held at such
time and on such date as may be mutually agreed upon by both parties, but shall not
occur urrtil after NCDOT has paid the purchase prices as specified in the deeds referenced
above. It is estimated that the Closing will take place on or before June 30, 2007. RDC
shall be responsible for RDC's attorneys' fees. NCDOT shall be responsible for all
recording and transfer costs, the costs of survey (described below), and NCDOT's
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attorneys' fees. This agreement shall expire December 31, 2007, if the Closing is not
held before that date.
5. Title & Survey. Not later than Closing, RDC, at its own cost and
expense, shall have released or subordinated any deed of trust or mortgage encumbrances
affecting the Conservation Easement Area. NCDOT shall arrange for, at its cost, the
preparation of a recordable plat of survey prior to Closing, delineating the Conservation
Easement Area. RDC shall have the opportunity to review and approve the survey. The
survey will be recorded in conjunction with Closing.
6. RDC's Representations and Warranties.
(a) RDC warrants that at the Closing, RDC shall convey to NCDOT the
Conservation Easement consistent with Paragraph 20 of Exhibit C.
(b) RDC makes the additional following representations and warranties, to the
best of its knowledge without independent investigation, which representations and
warranties shall be true as of the day of the Closing and shall survive Closing for a period
of six (6) months:
(i) RDC is the record owner of the Conservation Easement Area to be
conveyed hereunder.
(ii) RDC is in substantial compliance with the laws, orders and
regulations of each governmental department, commission, board, or agency
having jurisdiction over the Conservation Easement Area in those cases where
noncompliance would have a material adverse effect on the Conservation
Easement.
(iii) RDC is not a party to nor subject to or bound by any agreement,
contract or lease of any kind relating to the Conservation Easement Area that
would unreasonably interfere with the Conservation Easement or defeat its
purpose.
(iv) The property comprising the Conservation Easement Area is not in
violation of any federal, state or local law, ordinance or regulation relating to
environmental conditions on, under or about the Conservation Easement Area,
including, but not limited to, soil and groundwater conditions. Neither RDC, nor
to the best of its knowledge any third party, has used, generated, manufactured,
refined, produced, processed, stored, or disposed of on, or under the Conservation
Easement Area or transported to or from the Conservation Easement Area any
Hazardous Materials nor does RDC intend to use the Conservation Easement
Area prior to the Closing Date for the purpose of generating, manufacturing,
refining, producing, storing, handling, transferring, processing or transporting
Hazardous Materials. For purposes hereof, "Hazardous Materials" shall mean any
flammable explosives, radioactive materials, asbestos, petroleum, organic
compounds known as polychlorinated biphenyls, chemicals known to cause
cancer or reproductive toxicity, pollutants, contaminants, hazazdous wastes, toxic
substances or related materials, including, without limitation, any substances
defined as or included in the definition of "hazazdous substances", "hazardous
materials", or "toxic substances" in the Comprehensive Environmental Response,
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Compensation and Liability Act of 1980, as amended, 42 USC Sec. 9601 et seq.,
the Hazardous Materials Transportation Act, 49 USC Sec. 1801, et sec., the
Resource Conservation and Recovery Act, 42 USC Sec. 6901, et sec., or other
federal, state or local statute, law, ordinance, code, rule, regulation order, decree
or other requirement of governmental authority regulating, relating to, or
imposing liability or standazds of conduct concerning any hazardous, toxic or
dangerous substance or material, as now in effect, and in the regulations adopted
or promulgated pursuant to such laws.
7. Remedies.
(a) If the transfer of the Conservation Easement contemplated hereby is not
consummated in accordance with the terms and provisions of this Agreement due to
circumstances or conditions which constitute a default by NCDOT under this Agreement,
the entire Agreement shall be terminated, all rights and obligations of the pazties under
this Agreement shall expire, and this Agreement shall become null and void, and RDC
shall not be entitled to receive liquidated damages.
(b) If the transfer of the Conservation Easement contemplated hereby is not
consummated in accordance with the terms and provisions of this Agreement due to
circumstances or conditions which constitute a default by RDC under this Agreement,
NCDOT, as its sole and exclusive remedies: (i) shall have the right to terminate this
Agreement, in which event all rights and obligations of the parties under this Agreement
shall expire, and this Agreement shall become null and void; and (ii) if RDC's default is a
refusal by RDC to convey the Conservation Easement to NCDOT as required by this
Agreement, then NCDOT shall have the right to sue RDC for specific performance of
this Agreement.
8. Assignment; Successors. This Agreement may not be assigned by any
party, in whole or in part, without the prior written consent of the other parry, and any
such assignment with the consent of the other parry shall be null and void and of no force
or effect. Nothing herein shall restrict the ability to assign the Conservation Easement.
Subject to the foregoing, this Agreement shall be binding upon and enforceable against,
and shall inure to the benefit o~ RDC and NCDOT and their respective successors and
permitted assigns. No assignment shall relieve RDC of liability for the performance of
RDC's duties and obligations under this Agreement.
9. Entire Agreement; Modification. This Agreement supersedes all prior
discussions and agreements among RDC and NCDOT and constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof and there
aze no agreements, understandings, warranties or representations between the parties
other then those set forth herein. This Agreement may not be amended or modified in
any way except by instrument in writing executed by all parties hereto.
10. Documentation. If necessary to carry out the intent of this Agreement,
each parry agrees to execute and provide to the other party any and all other instruments,
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documents, conveyances, assignments and agreements which may be necessary to
effectuate, carry out and perform the terms, provisions and conditions of this Agreement.
11. Governing Law. This Agreement shall be governed by, construed under
and interpreted an enforced in accordance with the laws of the State of North Carolina.
12. Miscellaneous Provisions.
(a) Notices. All notices, demands or requests shall be in writing to the
addresses indicated on the signature pages below and shall be deemed given (i) upon the
date hand delivered; (ii) those given by mailing as hereinabove provided shall be deemed
given two business days after the date of deposit in the United States Mail; (iii) those
given by commercial courier as hereinabove provided shall be deemed given one
business day after the date of deposit with the commercial courier; or (iv) those given by
facsimile shall be deemed given on the date of confirmed facsimile transmittal.
(b) Facsimile as Writing. The parties expressly acknowledge and agree that,
notwithstanding any statutory or decisional law to the contrary, the printed product of a
facsimile transmittal shall be deemed to be "written" and a "writing" for all purposes of
this Agreement.
(c) Headings. The use of headings, captions and numbers in this Agreement
is solely for the convenience of identifying and indexing the various provisions in this
Agreement and shall in no event be considered otherwise in construing or interpreting
any provision in this Agreement.
(d) Exhibits. Each and every exhibit referred to or otherwise mentioned in
this Agreement is attached to this Agreement and is and shall be construed to be made a
part of this Agreement by such reference.
(e) Non-Waiver. Failure by any party to complain of any action, non-action
or breach of any other party shall not constitute a waiver of any aggrieved party's rights
hereunder. Waiver by any party of any right arising from any breach of any other party
shall not constitute a waiver of any other right arising from a subsequent breach of the
same obligation or for any other default, past, present or future.
(f) Rights Cumulative. All rights, remedies, powers and privileges conferred
under this Agreement on the parties shall be cumulative of and in addition to, but
restrictive of or in lieu of, those conferred by law.
(g) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument.
(h) Authori Each party hereto warrants and represents, to the extent
authorized by law, that such party has full and complete authority to enter into this
Agreement and each person executing this Agreement on behalf of a party warrants and
represents that he has been fully authorized to execute this Agreement on behalf of such
party and that such party is bound by the signature of such representative.
(i) No Construction Against Preparer. No provision of this Agreement shall
be construed against or interpreted to the disadvantage of any party by any court or other
governmental or judicial authority by reason of such party's having or being deemed to
have prepared or imposed such provision.
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13. Agreement: Recording. This Agreement runs with the land and is
enforceable by each party against the other, including its representatives, heirs,
successors and assigns, lessees, agents, and licensees. The NCDOT shall record a
Memorandum of its right to acquire the Conservation Easement pursuant to this
Agreement and any amendment hereto in a timely fashion with the Office of the Register
of Deeds for Brunswick County, North Carolina, and may re-record it at any time a.s may
be required to preserve its rights under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered through their duly authorized agents effective as of the date first
above written.
RESERVE DEVELOPMENT CO., LLC
By its Manager, Annapolis Management Co., LLC
BY: G
J A. Atkinson, 7r., Manager
P.O. Box 10879
Southport, NC 28461
NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION
BY:
A. D. Allison, II
Assistant Manager, Right of Way Branch
North Carolina Department of Transportation
1546 Mail Service Center
Raleigh, NC 27699-1546
#izs~ss
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