HomeMy WebLinkAbout20150636 Ver 1_Conservation Easement DRAFT_20150601
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT ("Conservation Easement") made this day of DATE, 2015, by and
between LANDOWNER NAME ("Grantors") whose address is LANDOWNER ADDRESS and
WATERSHED INVESTMENTS NC. LLC ("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,
(the "Property"), and being more particularly described as that certain parcel of land containing
North Carolina
approximately ________ acres and being conveyed to the Grantor by deed as recorded in Deed Book _____ at
Page ____ of the _________ County Registry, North Carolina; and
more particularly described as follows:
Legal Description of area of the Property hereinafter referred to as the
SEE ATTACHED EXHIBIT A.
“Conservation Easement Area”
WHEREAS,
Grantee is a company whose purpose is the conservation of property, and is qualified to be the
Grantee of a conservation easement pursuant to N.C. Gen. Stat.§ 121-35;
WHEREAS
, Grantors and Grantee recognize the conservation, scenic, natural, or aesthetic value of the
Conservation Easement Area 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 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 the Conservation Easement Area in its natural condition;
WHEREAS
, the preservation of the Conservation Easement Area is required in accordance with the Agreement
to Establish the Watershed Investments NC’s Cape Fear River Basin Riparian Buffer and Nutrient Offset
Umbrella Banking Instrument. The Neville Creek Riparian Buffer and Nutrient Offset Mitigation Bank is
intended to be used to provide for mitigation for nutrient offsets and/or riparian buffer impacts due to
development (both existing and proposed) within HUC 03030002 of the Cape Fear River Basin.
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,
Grantors 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 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 Grantors, 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 right of passage for such purposes are prohibited in the Conservation Easement Area.
D. Agricultural, Grazing and Horticultural Use.
Agricultural, grazing, animal husbandry, and
horticulture use of the Conservation Easement Area are prohibited.
E. Vegetation.
Except as related to the removal of non-native plants, diseased or damaged trees, or
vegetation that renders unsafe the Conservation Easement Area to persons or natural habitat, there shall be no
removal, burning, destruction, harming, cutting or mowing of trees, shrubs, or other vegetation in the
Conservation Easement Area.
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 in the Conservation
Easement Area.
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 Grantors 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 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.
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 the
Conservation Easement Area. 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, other than for temporary or occasional access for purposes of
maintaining the easement area.
M. 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. GRANTORS' RESERVED RIGHTS
The Grantors expressly reserve for themselves, their 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 Easement Area, the
rights of ingress and egress, the right to hunt, fish, and hike on the Easement Area, the right to sell, transfer, gift
or otherwise convey the Easement Area, 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.
Notwithstanding the foregoing Restrictions, Grantors reserve for Grantee, its successors and assigns, the right to
construct a riparian buffer and nutrient offset mitigation bank on the Conservation Easement Area, in
accordance with the "Agreement to Establish the Watershed Investments NC Tar River Basin Riparian Buffer
and Nutrient Offset Umbrella Banking Instrument (signed and approved by the Division of Water Quality
Director SINGAGE DATE TBD) and the "NAME TBD Creek Bank Parcel Development Package" (approved
by the Division of Water Quality on APPROVAL DATE TBD).
ARTICLE IV. GRANTEE'S RIGHTS
The Grantee or its authorized representatives, successors, and assigns, and the North Carolina Division of Water
Resources (the "DWR"), shall have the right to enter the Conservation Easement Area at all reasonable times for
the purpose of inspecting said property to determine if the Grantors, 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 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, the Grantee and the DWR 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 Grantors that comes to the
attention of the Grantee, the Grantee shall notify the Grantors in writing of such breach. The Grantors 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 and the DWR may enforce this Conservation Easement by appropriate legal
proceedings including damages, injunctive and other relief. Notwithstanding the foregoing, the Grantee and
DWR reserve 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 Grantors 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 in connection with this Conservation Easement. The
costs of a breach, correction or restoration, including Grantee's expenses, court costs, and attorneys' fees shall be
paid by Grantors, provided Grantors are determined to be responsible for the breach. The DWR shall have the
same right to enforce the terms and conditions of this easement as the Grantee.
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 Grantors for any injury or change in the Conservation Easement Area resulting from causes
beyond the Grantors' control, including, without limitation, fire, flood, storm, war, acts of God or third parties,
except Grantors' lessees or invitees; or from any prudent action taken in good faith by Grantors 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. ACCESS AND CONSTRUCTION EASEMENTS
Grantors hereby gives, grants, bargains, sells and conveys to Grantee a permanent right and easement over and
upon the land designated as Access Easement as shown on EXHIBIT A attached hereto and incorporated herein
by reference, for use by Grantee, its successors and assigns for access to the Conservation Easement Area for
any purpose (the "Access Easement"). The Access Easement herein conveyed includes, but is not limited to, the
right and privilege by Grantee, and third parties to access the Conservation Easement Area as necessary or
convenient for Grantee. This Access Easement runs with the land and is enforceable by Grantee, its successors
and assigns, and/or third parties against Grantors, Grantors' heirs and assigns.
Grantors hereby give, grant, bargain, sell and convey to Grantee a permanent right and easement over and upon
the land owned by Grantors twenty (20) feet in all directions from the Conservation Easement Area, for use by
Grantee, its successors and assigns for access to the Conservation Easement Area for any purpose, including but
not limited to the construction upon the Conservation Easement Area and for all purposes related to the
Conservation Easement (the "Conservation Easement"). The Construction Easement herein conveyed includes,
but is not limited to, the right and privilege by Grantee, and Third Parties to access the Conservation Easement
Area as necessary to monitor, maintain (including the use of construction equipment), or repair the Conservation
Easement Area and during said construction, to go onto the Grantors parcel with vehicles, equipment,
machinery, construction supplies and building materials (collectively the "Construction Activities"). This
Construction Easement runs with the land and is enforceable by Grantee, its successors and assigns, and/or third
parties against Grantors, Grantors' heirs and assigns.
ARTICLE VII. MISCELLANEOUS
A. Warranty.
Grantors warrant, covenant, and represent that it owns the Conservation Easement Area in
fee simple, and that Grantors either own all interest in the Conservation Easement Area 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 Conservation Easement Area which have not been expressly
subordinated to this Conservation Easement. Grantors further warrant 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 Conservation Easement Area against all claims of all persons.
B. Subsequent Transfers
. The Grantors agree 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 Grantors agree to provide written notice of such transfer at least thirty (30) days prior to the date of
the transfer. The Grantors 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 DWQ.
C. Assignment.
The parties recognize and agree that the benefits of this Conservation Easement are in
gross and assignable provided, however, that the Grantee 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 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
. Grantors are responsible for any real estate taxes, assessments, fees or
charges levied upon the Conservation Easement Area. Grantor shall keep the Conservation Easement Area free
of any liens or other encumbrances for obligations incurred by Grantors. Grantee shall not be responsible for any
costs or liability of any kind related to the ownership, operation, insurance, upkeep, or maintenance of the
Conservation Easement Area, 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. 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.
G. 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,
Grantors 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 Conservation Easement Area 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
the Conservation Easement Area 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 Conservation Easement Area (without deduction for the value of this Conservation
Easement) at the time of the 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 manner consistent with the purpose 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 addresses
(or such address as may be hereafter specified by notice pursuant to this paragraph):
To Grantors:
Landowners Address
To Grantee:
Watershed Investments, NC
Attn: Mike Herrmann
1630 Weatherford Circle
Raleigh, NC 27604
To State:
NC Division of Water Resources
Wetlands Buffers, Stormwater Compliance and Permitting Unit
Attn: Mrs. Karen Higgins
1650 Mail Service Center,
Raleigh, NC 27699 -1650
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.
L. Present Condition of the Conservation Easement Area.
The wetlands, scenic, resource,
environmental, and other natural characteristics of the Conservation Easement Area, and its current use and state
of improvement, are described in the "Agreement to Establish the Greene Environmental Services Neuse River
Basin Riparian Buffer and Nutrient Offset Umbrella Banking Instrument" (signed by the Division of Water
Resources Director on DATE TBD) and the "NAME TBD Riparian Buffer and Nutrient Offset Mitigation
Bank" (to be signed and approved by the Division of Water Resources) and acknowledged by the Grantor and
Grantee to be complete and accurate as of the date hereof. Both Grantors 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 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.
M. Other Conditions.
This conservation easement is only valid if the Agreement to Establish the Cape
Fear River Basin Riparian Buffer and Nutrient Offset Umbrella Banking Instrument and the NAME TBD Creek
Riparian Buffer and Nutrient Offset Mitigation Bank have been approved by the DWR. Applicable dates
assigned in Article III of this Conservation Easement must be completed.
TO HAVE AND TO HOLD the said rights and easements 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.
________________________________________
Landowner(s) Signature
___________________________________ (SEAL)
NORTH CAROLINA
COUNTY OF
_________________
I, _____________________________, a Notary Public in and for the County and State aforesaid, do hereby
certify that _________________________, Grantor, 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
___________________, 20__.
________________________________________
Notary Public
My commission expires:
______________________________
EXHIBIT A
Being certain portions of the property lying and being in Orange County, North Carolina, and more particularly
described as follows:
Those certain portions of the property identified on the 2015 tax records as tax parcel numbers (a total of 10.00
acres, more or less, as determined by computer) as shown on Map 1 of 1 of the SURVEY TITLE, dated DATE
and prepared by SURVEYOR NAME. A copy of the same is hereby attached to this Exhibit for reference. Said
Maps to be subsequently recorded at a later date.