20050893 Ver 1_More Info Received_20110131

Strickland, Bev
From: Dennison, Laurie
Sent: Monday, January 31, 2011 1:20 PM
To: Strickland, Bev
Subject: FW: Foxhole Landfill Conservation Easement
Attachments: FoxholeConservationDeclaration. pdf
From: Johnson, Alan
Sent: Monday, January 31, 2011 1:07 PM
To: Dennison, Laurie
Subject: FW: Foxhole Landfill Conservation Easement
From: Cook, Andrea fmailto:Andrea.Cook(a)hdrinc.com]
Sent: Monday, January 31, 2011 11:21 AM
To: Jones, Amanda D SAW
Cc: Johnson, Alan; Grzymski, Amber; Crowell, Dasa
Subject: Foxhole Landfill Conservation Easement
Re: USACE Action ID No. 200531884
DWQ #050893
Amanda,
Please find attached the signed and recorded Foxhole Landfill Conservation Declaration. Please let me know if you need
something different for your files to document the completion of this mitigation component for the expansion of the
Foxhole Landfill in Mecklenburg County.
Thank you,
Andrea Cook
Environmental Sciences Project Manager
HDR ONE COMPANY I Many Solutions
440 South Church Street, Suite 1000 1 Charlotte, NC 128202-1919
Phone: [phone] Fax: [phone]
Email: andrea.cook(a)hdrinc.com
Prepared by Mecklenburg County
Mail to Marvin A. Bethune (ROD 24)
STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
Project Name: Foxhole Landfill
Portion of Tax Parcels: 223-052-02
223-061-03
223-071-01
CONSERVATION DECLARATION
This DECLARATION of CONSERVATION COVENANTS, CONDITIONS, and
RESTRICTIONS ("Conservation Declaration") is made on this v7.S?A day of January, 2011,
by MECKLENBURG COUNTY, a political subdivision of the State of North Carolina, 600
East Fourth Street, Charlotte, North Carolina, 28202 ("Declarant").
RECITALS & CONSERVATION PURPOSES
A. Declarant is the sole owner in fee simple of the certain real property situated, lying,
and being in Mecklenburg County, North Carolina ("Property"), conveyed to Declarant by
instrument recorded in Deed Book 4917 at Page 338, Deed Book 4940 at Page 520, and Deed
Book 4936 at Page 448 of the Mecklenburg County Registry.
B. Declarant agrees to restrict and limit the use of that portion of the Property
("Conservation Area"), as shown and being more particularly described on Exhibit A attached
hereto and hereby made a part of this document, to the terms, conditions and purposes
hereinafter set forth.
C. The purpose of this Conservation Declaration 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. The preservation of the Property in its natural condition is a
condition of the Department of the Army permit (Action ID 200531884) issued by the
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Wilmington District Corps of Engineers (Corps), required to mitigate for unavoidable impacts to
waters of the Unites States authorized by that permit, and this Conservation Declaration may
therefore be enforced by the United States of America.
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that the
Conservation Area 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
Any activity on, or use of, the Conservation Area inconsistent with the purposes of this
Conservation Declaration is prohibited. The Conservation Area shall be maintained in its natural
and scenic 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 within the Property.
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 placement of temporary or
permanent structures or facilities, including, but not limited to antennas, utility poles, towers,
fences, pavement, storage buildings and storage tanks on, under, or above the Conservation Area,
except for pre-existing structures or facilities shown on Exhibit A. Pre-existing structures may
be repaired, maintained or removed as necessary provided such actions do not diminish the
Conservation Values of the Conservation Area.
.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 eg tation: There shall be no removal, burning, destruction, harming, cutting or
mowing of trees, shrubs or other vegetation on the Property except for maintenance purposes
along utility right of ways , established greenways and emergency access trails. Invasive species
that may threaten existing native vegetation -may be removed.
F. Roads and Trails. There shall be no construction of roads, trails or walkways on the
Property except for the crossings indicated in Exhibit A. Crossings will be constructed to
minimize impact to the Conservation Area. Existing greenways, trails and emergency access
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roads (as shown on Exhibit A) may be repaired, maintained or removed as necessary provided
such actions do not diminish the Conservation Values of the Conservation Area.
G. Signage. No signs shall be permitted on or over the Property, except the posting of
no trespassing signs, educational signs along the greenway, signs identifying the Conservation
Values of the Property, signs giving directions or proscribing rules and regulations for 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. Dredging; or Mineral Use. There shall be no grading, filling, excavation,
dredging or mining; 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 Patterns. There shall be no diking, draining, dredging,
channeling, filling, leveling, pumping, impounding, or diverting surface runoff or surface water
flow; altering or tampering with water-control structures or devices; disruption or alteration of
restored, enhanced, or created drainage patterns; removing of wetlands; polluting or discharging
into surface waters, springs, seeps, or wetlands.
K. Utilities. All efforts must be made to avoid utility construction in the Conservation
Area. All utility projects must be reviewed and approved by the Army Corps of Engineers prior
to construction. Declarant understands that, in the event that the construction of a utility line
reduces the conservation value of this conservation property in any way, that the Department of
the Army permit for such utility line may be conditioned to require mitigation. for impacts to
aquatic resources caused by. the new utility line, as well as mitigation to compensate for any
reduced conservation values of this conservation property. Utility easements of record on the
date hereof and utility installations and facilities pursuant thereto are exempt from the
restrictions described herein. The following conditions shall apply to new utility construction:
For new utility line construction, the Declarant shall investigate reasonable
alternatives to placing any new utility lines on the Conservation Area and shall
avoid placing new utility lines on the Conservation Area where feasible.
2. Utilities shall be constructed and installed pursuant to a written utility easement
agreement recorded in the local land records registry requiring that such
construction and installation shall be conducted in a manner that minimizes
interference with the Conservation Values.
3. All utility improvements shall be constructed pursuant to regulatory requirements
and approvals, and in compliance with the terms and conditions of the Mitigation
Agreement.
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4. Sanitary sewer lines and wastewater collection systems, if any, shall be installed
and maintained pursuant to all applicable federal, state and local laws, rules,
statutes, ordinances, regulations and permits, specifically any permits required by
the NC DENR DWQ or successor agency.
5. After construction, the permanent utility easement will be re-vegetated with
suitable native vegetation, provided however that a 15-foot wide mowing area is
allowed over utility lines.
6. Utility crossings of the stream must be located at least 250-feet apart. Corridor
and clearing width shall be limited to the minimum necessary to construct the
needed facilities, subject to line size, equipment size, work zone and legal
requirements.
7. Stream crossings shall be perpendicular and accomplished by drilling, boring and
jacking methods when possible; when crossings must be constructed using open
trench excavation, temporary discharge of excavated or fill material shall be
minimized in both quantity and duration.
8. Any utility crossing of the stream shall be restored to its pre-construction
condition to the greatest extent practicable. Each utility crossing shall be
completed and restoration will be accomplished in a timely manner such that
environmental and erosion impact is minimized.
9. Utilities constructed parallel to stream corridors shall be located a minimum of 30
feet from the top of the stream bank to the greatest extent practicable. The area
between the utility and the top of stream bank shall remain undisturbed except at
stream crossings.
10. All disturbed and removed vegetation in access areas, staging areas, temporary
areas, excluding the permanent utility easement, shall be replaced with native
herbaceous species such that the disturbed area achieves a rapid recovery from the
disturbance.
11. Erosion control devices shall be utilized to contain all disturbed materials and will
conform to current laws and regulations. Crossing of the waterway, wetland or
other water feature will be accomplished in a timely manner such that
environmental and flooding impact is minimized.
12. Depth of underground construction shall be to a sufficient depth to avoid future
exposure due to scouring, as determined by a registered professional engineer or
other person satisfying the requirements of condition number 8 above.
L. Development Rights. No development rights that have been encumbered or
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extinguished by this Conservation Declaration shall be transferred pursuant to a transferable
development rights scheme or cluster developments arraignment or otherwise.
M. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited, except for the
maintenance of the existing trails, emergency access and utilities or in case of an emergency.
N. 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 H. ENFORCEMENT & REMEDIES
A. Enforcement. This Declaration is intended to ensure continued compliance with the
mitigation condition of authorization issued by the United States of America, U.S. Army Corps
of Engineers, Wilmington District, and therefore may be enforced by the United States of
America. The covenant is to run with the land and shall be binding on all parties and all persons
claiming under the Declarant.
B. Right of Entry and Inspection. The Corps, 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 Conservation Area to determine whether the Declarant,
Declarant's representatives, or assigns are complying with the terms, conditions and restrictions
of this Conservation Declaration.
C. Acts Beyond Declarant's Control. Nothing contained in this Conservation Declaration
shall be construed to entitle the Corps to bring any action against Declarant for any injury or
change in the Conservation Area 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 or damage to Property resulting from such
causes.
ARTICLE M. PUBLIC ACCESS
A. This Conservation Declaration does not convey to the public the right to enter the
Conservation Area for any purpose whatsoever except on established public trails or roads
described in Article I, Section F.
ARTICLE IV. DOCUMENTATION AND TITLE
A. Conservation Area Condition. Declarant represents and acknowledges that the
Conservation Area is currently undeveloped land, with no improvements other than any existing
trails, utility lines, Declarations and rights of way.
B. Title. Declarant covenants and represents that Declarant is the sole owner and is
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seized of the Property in fee simple and has good right to make the herein Declaration; that there
is legal access to the Property and that the Property is free and clear of any and all
encumbrances, except Declarations of record.
ARTICLE W. MISCELLANEOUS
A. Conservation Purpose. Declarant, for itself, its successors and assigns, agrees that this
Conservation Area shall be held exclusively for conservation purposes.
B. 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
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.
C. Recording. Declarant shall record this instrument and any amendment hereto in
timely fashion in the official records of Mecklenburg County, North Carolina, and may re-record
it at any time as may be required to. preserve its rights.
D. Environmental Condition of Conservation Area. Declarant warrants and represents
that to the best of its knowledge after appropriate inquiry and investigation: (a) the Conservation
Area described herein is and at all times hereafter will continue to be in full 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 Conservation
Area or used in connection therewith, and that there is no environmental condition existing on
the Conservation Area that may prohibit or impede use of the Conservation Area for the
purposes set forth in the Recitals.
E. Subsequent Transfer of Fee. The Property owner shall not convey the Conservation
Area or any interest therein, and shall not incur, assume, or suffer to exist any lien upon or with
respect to the Conservation Area without disclosing to the prospective buyer the Conservation
Declaration, the obligations of the Property owner, limitations on use of the Conservation Area, and
affirmative rights of the Declarant hereunder. Declarant further agrees to make any subsequent
lease, deed, or other legal instrument by which any interest in the Conservation Area is conveyed
subject to the Conservation Declaration herein created. Declarant shall notify the Corps in
writing of the name and address of any party to whom the Conservation Area or any part thereof
is to be transferred at or prior to the time said transfer is made.
F. Amendments. Declarant and the Corps, or their successors in interest in the
Conservation Area, are free to jointly amend this Conservation Declaration to meet changing
conditions, provided that no amendment will be allowed that is inconsistent with the purposes of
this Conservation Declaration or affects the perpetual duration of this Conservation Declaration.
Such amendment(s) require the written consent of the Corps and shall be effective upon
recording in the public records of Mecklenburg County, North Carolina. The Declarant
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acknowledges that it shall have no right to conduct or agree to any activity that would result in
termination of this Conservation Declaration.
G. ' Interaretation. This Conservation Declaration shall be construed and interpreted
under the laws of the State, and any ambiguities herein shall be resolved so as to give maximum
effect to the purposes of this Conservation Declaration as stated herein. Further, this
Conservation Declaration shall be construed to promote the purposes of the Conservation
Agreements Act, which authorizes the creation of conservation agreements for purposes
including those set forth herein, such conservation purposes as are defined in Section 170(h) (4)
(A) of the Code and set forth in NCGS Chapter 113A, Article 18. If any provision of this
Conservation Declaration is found 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.
[Signatures on following page]
R$CWB:170202:1/24/2011 7
IN WITNESS WHEREOF, Declarant has hereunto set its hand and seal, the day and year first
above written.
COUNTY
Sr. County Manager
ATTEST:
By:
Clerk o e Board of County 'ssioners
(SEAL)
NORTH CAROLINA
COUNTY OF
APPROVED AS TO FORM:
By: ;)? 'q ZAL"'
County Attorney
I, Notary Public, do hereby certify that 7J'oAu!
personally Appeared before me this day and acknowledged that she is Clerk to the 13oard of
County Commissioners of Mecklenburg County, and that by authority duly given and as the act
of the Board, the foregoing instrument was signed in its name by its County Manager, sealed
with its County seal, and attested by her as its Clerk to the Board.
IN WITNESS WHEREOF, I have hereunto set my hand and Notary Seal this the o?5 day of
2011.
Notary P lic
-Tr a cm' (Z ?.d?, .? o?.?c? 1'
Print Nari
My commission expires:
5 11112013

RBCWB:170202:1/24/2011
Exhibit A
The Conservation Area is shown and more particularly described on that plat recorded in
Map Book 52 at Page 981, as recorded in the Mecklenburg Public Registry.
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