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HomeMy WebLinkAbout20181428 Ver 1_Conservation Easement DRAFT 8_9_2022_20220809Mitigation Project Information Upload ID#* 20181428 Version* 1 Select Reviewer: * Katie Merritt Initial Review Completed Date 08/10/2022 Mitigation Project Submittal - 8/9/2022 .................................................................................................................................................................................................................................................................. Is this a Prospectus, Technical Proposal or a New Site? * 0 Yes O No Type of Mitigation Project:* Stream Wetlands Buffer Nutrient Offset (Select all that apply) Project Contact Information Contact Name: * Email Address: * Travis Hamrick thamrick@ecomitigation.com Project Information ID#:* 20181428 Existing ID# Project Type: Project Name: County: DMS • Mitigation Bank Wall II Buffer Mitigation Bank Randolph Document Information Mitigation Document Type: * Mitigation Conservation Easement File Upload: Signature ............................................ Print Name: * Signature:* Version:* 1 Existing Version Wall II Conservation Easement DRAFT 8_9_2022.pdf 288.61KB Please upload only one PDF of the complete file that needs to be submitted... Travis Hamrick 7�wvis N.eA4/2-#- EM Draft 7.15.2022 PERMANENT CONSERVATION EASEMENT Excise Tax: $ Parcel Identifier No.: PIN 7745-86-2260 Prepared by and return after recording to: EcoMAA Holdings I, LLC, 605 Kirby St., Raleigh, NC 27606 Brief description for the Index: 9.96 (+/-) acre Conservation Easement in Randolph County, NC THIS CONSERVATION EASEMENT ("Conservation Easement") made this day of , 2022 by and between Phillip Tracy Wall Family Limited Partnership, a North Carolina limited partnership, whose mailing address is 536 Woodvale Drive, Greensboro, NC 27606 ("Grantor") and The North Carolina Wildlife Habitat Foundation, Inc., a North Carolina non- profit corporation with a principal office location of Post Office Box 29187, Greensboro, NC 27429 ("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 Randolph County, North Carolina, more particularly described in Exhibit A attached hereto and incorporated herein (the "Property"); WHEREAS, Grantee is a charitable, not -for -profit or educational corporation, association, or trust qualified under § 501 (c)(3) and § 170 (h) of the Internal Revenue Code, and N.C. Gen. Stat. § 121-34 et seq., the purposes or powers of which include one or more of the purposes (a) — (d) 1 EM Draft 7.15.2022 listed below; (a) retaining or protecting natural, scenic, or open -space aspects of real property; (b) ensuring the availability of real property for recreational, educational, or open -space use; (c) protecting natural resources; (d) maintaining or enhancing air or water quality. 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 buffers. The purpose of this Conservation Easement is to maintain streams and riparian resources and other natural values of approximately 9.96 acres, more or less, and being more particularly described in Exhibit B attached hereto and incorporated fully herein by reference (the "Conservation Easement Area"), and prevent the use or development of the Conservation Easement Area for any purpose or in any manner that would conflict with the maintenance of its natural condition. WHEREAS, the restoration, enhancement and preservation of the Conservation Easement Area is a condition of the approval of the Wall II Buffer Mitigation Banking Instrument ("MBI") and the Wall II Buffer Mitigation Bank Parcel Development Package("BPDP"), North Carolina Department of Environmental Quality - Division of Water Resources ("NCDWR") Project ID Number 2018-1428v2, entitled "Wall II Buffer Mitigation Project", entered into by and between EcoMAA Holdings I, LLC ("EMH") acting as the Bank Sponsor ("Bank Sponsor"), and NCDWR. The Wall II Buffer Mitigation Project has been approved by North Carolina Division of Water Resources ("NCDWR") for use as a mitigation bank to compensate for authorized impacts to riparian buffers and authorized nutrient sources. WHEREAS, Grantor and Grantee agree that third -party rights of enforcement shall be held by EMH and NCDWR ("Third-Parties,"to include any successor agencies), and may be exercised through the appropriate enforcement agencies of the State of North Carolina, and that these rights are in addition to, and do not limit, the rights of enforcement under the NCDWR Project ID # 2018-1428v2 ("Mitigation Banking Instrument"), or any permit or certification issued by the Third -Parties. 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 and in perpetuity a Conservation Easement of the nature and character and to the extent hereinafter set forth, over the Conservation Easement Area described on Exhibit B, together with the right to preserve and protect the conservation 2 EM Draft 7.15.2022 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 Conservation Easement Area inconsistent with the purpose of this Conservation Easement is prohibited. The Conservation Easement Area shall be preserved in its natural condition and restricted from any development that would impair or interfere with the conservation values of the Conservation Easement Area. Without limiting 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 Conservation Easement Area or any introduction of non-native plants and/or animal species is prohibited. B. Construction. There shall be no constructing 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 Conservation Easement Area. C. Industrial, Commercial and Residential Use. Industrial, residential and/or commercial activities, including any rights of passage for such purposes are prohibited. D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal husbandry, and horticultural use of the Conservation Easement Area are prohibited. E. Vegetation. There shall be no removal, burning, destruction, harming, cutting or mowing of trees, shrubs, or other vegetation in the Conservation Easement Area except as provided in the BPDP. Mowing of invasive and herbaceous vegetation for purposes of enhancing planted or volunteer trees and shrubs approved in the BPDP is allowable once a year for no more than five consecutive years from the date on page 1 of this 3 EM Draft 7.15.2022 Conservation Easement, except where mowing will negatively impact vegetation or disturb soils. Mowing activities shall only be performed by Bank Sponsor and shall not violate any part of the MBI and/or BPDP. F. Roads and Trails. There shall be no construction of roads, trails or walkways on the Conservation Easement Area; nor enlargement or modification to existing roads, trails or walkways. G. Signage. No signs shall be permitted on or over the Conservation Easement Area, except the posting of no trespassing signs, signs identifying the conservation values of the Conservation Easement Area, signs giving directions or proscribing rules and regulations for the use of the Conservation Easement Area and/or signs identifying the Grantor as owner of the Conservation Easement Area. 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 Conservation Easement Area is prohibited. I. 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 in the topography of the land in any manner on the Conservation Easement Area, except to restore natural topography or drainage patterns. For purposes of restoring and enhancing riparian areas within the Conservation Easement Area, Bank Sponsor is allowed to perform grading, filling, and excavation associated with riparian buffer and nutrient restoration and enhancement activities as described in the BPDP. J. 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. 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. Subdivision. The Grantor and Grantee agree that the Conservation Easement Area currently consists of one area within one Randolph County tax 4 EM Draft 7.15.2022 parcel. The Grantor may not further subdivide the Conservation Easement Area, except with the prior written consent of the Grantee. If Grantor elects to further subdivide any portion of the Conservation Easement Area, Grantor must provide the Grantee the name, address, and telephone number of new owner(s) of all property within the Conservation Easement Area, if different from Grantor. No subdivision of the Conservation Easement Area shall limit the right of ingress and egress over and across the Property for the purposes set forth herein. Further, in the event of any subdivision of the Property (whether inside or outside of the Conservation Easement Area) provision shall be made to preserve not only Grantee's perpetual rights of access to the Conservation Easement Area, as defined herein, but also Grantee's right of perpetual access to any conservation easements on properties adjacent to the Property which form a part of or are included in the BPDP. Creation of a condominium or any de facto division of the Conservation Easement Area is prohibited. Lot line adjustments or lot consolidation without the prior written consent of the Grantee is prohibited. The Grantor may convey undivided interests in the real property underlying the Conservation Easement Area. The Grantor shall notify the Grantee immediately of the name, address, and telephone number of any grantee of an undivided interest in any property within the Conservation Easement Area. M. Vehicles. The operation of mechanized vehicles, including, but not limited to, motorcycles, dirt bikes, all -terrain vehicles, cars and trucks is prohibited other than for temporary or occasional access by the Bank Sponsor, Grantee and the Third -Parties, its employees and agents, successors, assigns, for purposes of constructing, maintaining and monitoring the restoration and preservation of streams and riparian areas within the Conservation Easement Area. The use of mechanized vehicles for monitoring purposes is limited to only existing roads and trails as shown in the approved in the BPDP. N. Other Prohibitions. Any other use of, or activity on, the Conservation Easement Area which is or may become inconsistent with the purposes of this grant, the preservation of the Conservation Easement Area substantially in its natural condition, or the protection of its environmental systems, is prohibited. ARTICLE III. GRANTOR'S RESERVED RIGHTS The Grantor expressly reserves for itself, its personal representatives, heirs, successors or assigns, the right to continue the use of the Conservation Easement Area for all purposes not inconsistent with this Conservation Easement, including, but not limited to, the right to quiet enjoyment of the Conservation Easement Area, the rights of ingress and egress, the right to hunt, fish, and hike on the Conservation Easement Area, the right to sell, transfer, gift or otherwise convey the Conservation Easement Area, in whole or 5 EM Draft 7.15.2022 in part, provided such sale, transfer or gift conveyance is subject to the terms of, and shall specifically reference, this Conservation Easement. Notwithstanding the foregoing Restrictions, Grantor reserves for Grantor, its successors and assigns, including EMH acting as the Bank Sponsor, the right to construct and perform activities related to the restoration and preservation of riparian areas within the Conservation Easement Area in accordance with the approved BPDP and the Mitigation Banking Instrument described in the Recitals of this Conservation Easement. ARTICLE IV. GRANTEE'S RIGHTS The Grantee or its authorized representatives, successors and assigns, shall have the right to enter the Property and Conservation Easement Area at all reasonable times for the purpose of inspecting the Conservation Easement Area 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 and the Third Parties, and their authorized representatives, successors and assigns shall also have the right to enter and go upon the Conservation Easement Area 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 and the Third Parties are allowed to prevent any activity on or use of the Conservation Easement Area that is inconsistent with the purposes of this Easement and to require the restoration of such areas or features of the Conservation Easement Area 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 terms 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 6 EM Draft 7.15.2022 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 Third -Parties shall have the same rights and privileges as the said Grantee to enforce the terms and conditions of this Conservation easement. 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 Conservation Easement Area 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 Conservation Easement Area resulting from such causes. ARTICLE VI. MISCELLANEOUS A. Warranty. Grantor warrants, covenants and represents that it owns the 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 mortgages, 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 Conservation Easement Area. The Grantor agrees to provide written notice of such transfer at least sixty (60) 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 Conservation Easement Area or any portion thereof and shall not be amended, modified or terminated without the prior written consent and approval of the Third -Parties. C. Assignment. The parties 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 7 EM Draft 7.15.2022 assigns this Conservation Easement, the organization receiving the interest will be a qualified holder pursuant to 33 CFR 332.7 (a)(1), N.C. Gen. Stat. § 121-34 et seq. and § 501 (c)(3) 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. The MBI with corresponding BPDP, and this Conservation Easement 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 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 the Property. Grantor shall keep the Property free of any liens or other encumbrances for obligations incurred by Grantor, except those incurred after the date hereof, which are expressly subject and subordinate to the Conservation Easement. 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. Nothing 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. Long Term Management. Grantor is responsible for all long term managcmcnt activitics associatcd with fcncing. Thcsc activitics includc thc maintcnancc and/or rcplaccmcnt of fcncc structures to cnsurc thc aquatic arc sustaincd. G. Extinguishment. In the event that changed conditions render impossible the continued use of the Conservation Easement Area for the conservation purposes, this Conservation Easement may only be extinguished, in whole or in part, by judicial proceeding. H. Eminent Domain. Whenever all or part of the Conservation Easement Area 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. I. Proceeds. This Conservation Easement constitutes a real property interest immediately vested in Grantee. In the event that all or a portion of the Conservation Easement Area is sold, exchanged, or involuntarily converted 8 EM Draft 7.15.2022 following an extinguishment or the exercise of eminent domain, Grantee shall be entitled to the fair market value of this Conservation Easement as determined at the time of the extinguishment or condemnation. J. 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 addresses (or such address as may be hereafter specified by notice pursuant to this paragraph): To Grantor: Philip Tracy Wall Family Limited Partnership 536 Woodvale Drive Greensboro NC 27410 To Grantee: North Carolina Wildlife Habitat Foundation, Inc. Post Office Box 29187 Greensboro, NC 27429 To Sponsor: EcoMAA Holdings I, LLC c/o Travis Hamrick 605 Kirby Street Raleigh, NC 27606 K. 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. L. Amendment. This Conservation Easement may be amended, but only in a 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. M. Present Condition of the Conservation Easement Area. The streams and riparian areas, scenic, resource, environmental, and other natural characteristics of the Conservation Easement Area, and its current use and state of improvement, are described in Sections 2- Current Conditions and Section 3- Proposed Conditions of the BPDP, prepared by Grantor and acknowledged by the Grantor and Grantee to be complete and accurate as of the date hereof. Both Grantor and Grantee have copies of this report. It will be used by the parties to assure that any future changes in the use of the 9 EM Draft 7.15.2022 Conservation Easement Area 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 Conservation Easement Area if there is a controversy over its use. TO HAVE AND TO HOLD the said rights and easements perpetually unto Grantee for the aforesaid purposes. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 10 EM Draft 7.15.2022 IN TESTIMONY WHEREOF, the Grantor has hereunto set his hand and seal, the day and year first above written. GRANTOR: Philip Tracy Wall Family Limited Partnership By: (SEAL) Philip Tracy Wall, General Partner NORTH CAROLINA COUNTY OF , a Notary Public in and for the County and State aforesaid, do hereby certify that Philip Tracy Wall, General Partner of the Philip Tracy Wall Family Limited Partnership, personally appeared before me this day and acknowledged the execution of the foregoing instrument. IN WITNESS WHEREOF, I have hereunto set my hand and Notary Seal this the day of , 2022. [SEAL] Signature of Notary Public Printed Name of Notary Public My commission expires: 11 EM Draft 7.15.2022 IN TESTIMONY WHEREOF, the Grantee has hereunto set his hand and seal, the day and year first above written. GRANTEE: THE NORTH CAROLINA WILDLIFE HABITAT FOUNDATION, INC. a North Carolina non-profit corporation By: Name: Title: NORTH CAROLINA COUNTY OF , a Notary Public in and for the County and State aforesaid, do hereby certify that personally appeared before me this day and acknowledged that he/she is the of the North Carolina Wildlife Habitat Foundation, Inc., a North Carolina non-profit corporation, and that by authority duly given, and as the act of the Grantee, he/she signed the foregoing instrument in its name, on its behalf and as its act and deed for the purposes stated herein. IN WITNESS WHEREOF, I have hereunto set my hand and Notary Seal this the day of , 2022. [SEAL] Signature of Notary Public Printed Name of Notary Public My commission expires: 12 EM Draft 7.15.2022 EXHIBIT A Legal Description of the Property [To Be Confirmed by Title Commitment] Four adjoining Randolph County parcels totaling 276.81 acres, being all of the real property (the "Property") originally owned by Richard Glenn Wall and inherited by Philip Tracy Wal1, Randolph County, North Carolina Estate Pile 98-E-682 and more fully described as follows: Parcel No. I That certain tract of land consisting of 27,76 acres, more or Tess, in New Market Township, Randolph County, North Carolina, being Tax Map Parcel No 7745568829 and more fully described as follows: Beginning at a stake in Rich's line, Coggin's corner, running South 15 chains to a stone at the old plank road; thence South 52' East with said road 8 chains to an iron stake in the bank of the road; thence North 45' East 26,33 chains to a stake in Coggin's line; thence Nest with said line 24.43 chains to the beginning. Deed derivation: Book 278, Page 424, Randolph County Register of Deeds. Parcel No. 2 That certain tract of land consisting of approximately 28.05 acres in Randolph County, North Carolina and being more fully described as Tax Map Parcel No. 7745652254. Parcel No. 3 That certain tract of land consisting of 29.50 acres, more or Tess, in New Market Township, Randolph County, being Tax Map Parcel No. 7745846805 and being more fully described as follows: Beginning at a white -oak, Wail's comer, running thence South 9 chains to the middle of the road; thence with the said road to a stone in Brown's line; thence West on said line 8 chains and 30 links to a stone; thence South l 1 degrees East 36 poles to a stone in the line of the ?lank Road; thence with said road North 53 degrees West 51 poles to a stone in the line of said road; thence North with Wall's line 18 chains and 50 links to a stone, Wall's comer; thence Fast 12 chains and 19 links to the beginning. Deed derivation: Book 387, Page 148 Randolph County Register of Deeds. Parcel No- 4 That certain tract of land consisting of 191,5 acres, more or less, in New Market Township, Randolph County, North Carolina being Tax Map Parcel No.7745768210 and being more fully described as follows: Beginning at a stake in the Old Plank Road; thence North 4° cast 18 chains to a flint rock; then South 86' East 32.10 chains to an iron wood on the bank ofa branch; thence down said branch its various courses 27'�� chains to a stone in the branch; thence South 87' West 30 chains to a stone; thence Nrrrih 4° East 5.75 chains to a stake; thence North 86' West 31.75 chains 10 a stake; Eastern corner of Don T. Wall lot; thence South 45' West 26.33 chains to a stake in the Old Plank Road; thence South 50' East along said Plante Road 44,88 chains to the beginning. Deed derivation; Deed Book 278, Page 385, Randolph County Register of Deeds- 13 EM Draft 7.15.2022 EXHIBIT B Conservation Easement Area [Pending From Surveyor] 14