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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.