Excise Tax
$
Tax
ID/Parcel/PIN:
Prepared by
and
After
Recording Return to: N.C.
Dept. of Environment & Natural Resources
Division
of Soil & Water Conservation
__________________________________________________________________________________________
THIS DEED OF
CONSERVATION EASEMENT (“Conservation Easement”), effective as of the
_______ day of _________,
2008 and given by LARRY A. LANDOWNER, and wife, LAURA A. LANDOWNER (“Grantor”
or “Owner”), citizens and residents of Beaufort County, North Carolina, to the
STATE OF NORTH CAROLINA (hereinafter “Grantee” or “State”) by and through the
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (hereinafter “DENR”);
W I T N E S S E T H:
WHEREAS,
the State has established the Conservation Reserve Enhancement Program
(“CREP”) pursuant to Chapter 113A, Article 16 of the North Carolina General
Statutes, for the purposes of acquiring, maintaining, restoring and enhancing
wetland and riparian resources that contribute to the protection and
improvement of water quality, flood prevention, fisheries, wildlife habitat,
and recreational opportunities; and
WHEREAS,
the State is authorized by Chapter 121, Article 4 of the North Carolina General
Statutes to acquire conservation easements; and
WHEREAS, Grantor owns in fee
simple absolute certain real property lying and being in Chocowinity Township,
Beaufort County, North Carolina (the
"Property"), and more particularly described on the attached
“Exhibit A” which is incorporated by reference as if fully set forth herein;
and
WHEREAS,
Grantor and Grantee have agreed to set aside 9.291 acres more or less of the
Property (as described herein below and hereinafter referred to as the
“Easement Area”), for the purpose, including but not limited to; creating a
conservation easement to preserve, enhance, restore, and maintain the natural
features and resources of the Easement Area, to provide habitat for native
plants and animals, to improve and maintain water quality, and to control
runoff of sediment (hereinafter the “Conservation Values”).
NOW, THEREFORE, in
consideration of the mutual covenants, terms, conditions, and restrictions
hereinafter set forth, Ten Dollars ($10.00) and other good and valuable
consideration provided pursuant to the terms of CREP, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby unconditionally
and irrevocably hereby grants and conveys unto Grantee, its successors and
assigns, this Conservation Easement in the Easement Area, (exclusive of any
area known to or later identified as containing hazardous substances or wastes) which is more particularly
described on the attached “Exhibit B” incorporated by reference as if fully set
forth herein.
THE FURTHER TERMS AND CONDITIONS OF THE CONSERVATION EASEMENT ARE AS FOLLOWS:
I. DURATION OF EASEMENT
This Conservation Easement
shall remain in effect in perpetuity from the effective date. It is an easement in gross, runs with the
land, and is enforceable by Grantee against Grantor, its personal
representatives, heirs, successors, assigns, lessees, agents, and licensees.
II. PROHIBITED AND
RESTRICTED USES AND ACTIVITIES
Any activity on, or use of,
the Easement Area inconsistent with the purposes of this Conservation Easement
is prohibited. The Easement Area shall
be maintained in its natural and open condition and restricted from any
development that would impair or interfere with the Conservation Values.
In addition to the
foregoing, the following specific activities are prohibited, restricted, or
reserved, as the case may be, within the Easement Area:
A.
PROHIBITED USES AND
ACTIVITIES
1. Industrial Uses. All industrial uses are prohibited.
2. Residential Uses. All residential uses are prohibited.
3. Commercial Uses. All
commercial uses are prohibited.
4. Agricultural Uses. Agricultural uses are prohibited except for
silvicultural practices as expressly allowed and described in Sections II.B.4.
and II.B.5. herein-below.
5. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned
vehicles, appliance or machinery, or other material on the easement area is
prohibited.
6. Livestock. There shall be no livestock grazing
within the Easement Area, nor shall be allowed therein any confined animal
facilities.
1. New Construction. There shall be no building, facility, mobile
home, or other structure constructed o Owner, Grantee and/or DENR, and/or signs
giving directions or prescribing rules and regulations for the use of the
Easement Area and the Property.
2. Signs. No signs shall be permitted within the
Easement Area except interpretative signs identifying the Conservation Values
of the Easement Area, signs identifying CREP, the
Owner, Grantee and/or DENR, and/or
signs giving directions or prescribing rules and regulations for the use of the
Easement Area and the Property.
3.
Grading, Mineral Use, Excavation, Dredging. There shall be no grading, filling,
excavating, 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
except as reasonably necessary for
the purpose of alleviating erosion, dispersing sheet
flow maintain water quality and
wetland values or except as necessary for the cleanup or
remediation of hazardous material or
hazardous wastes on the Property.
4. Burning, Cutting, Removal, Grazing or
Destruction of Vegetation. There shall be
no burning, cutting, removal,
grazing or destruction of trees, shrubs, grasses or other
vegetation (collectively,
"Vegetation") within the Easement Area except for: (1) practice
establishment; (2) non-native, invasive or noxious
Vegetation; (3) dead, insect-infested or
diseased Vegetation; (4) trees impeding the
flow of the Water Body; (5) removal
necessary to protect rare and endangered species; (6) Vegetation
for one crossing for
vehicular access to the remainder of the Property; (7)
burning in accordance with the
established Conservation Plan and/or Forest Management
Plan. Notwithstanding the
previous sentence, the Grantors, beginning in year 16,
may selectively harvest trees more
than 50 feet from the watercourse according to an
established forestry management plan.
90
5. Cutting, Haying,
Mowing, Seed Harvesting, Grazing, Plowing and Tilling. There shall be no cutting, haying, mowing, seed
harvesting, grazing, use of pesticides, plowing or tilling within the Easement
Area except for: (1) practice establishment; (2) non-native or invasive grasses
or noxious weeds; (3) dead (not dormant), insect-infested or diseased grasses;
(4) removal to protect rare and endangered species; or (5) burning in
accordance with the established Conservation Plan. Whenever mowing is allowed as set forth in
this paragraph, it shall not take place between April 15 and September 15 of
any year (or as may be otherwise determined by the State). Mowing for cosmetic purposes is not permitted
under any circumstances. Any of the
activities described in this section II.B.5. or in Section II.B.4.
herein-above, must be conducted in strict compliance with the Conservation Plan
(as defined herein-below), and in no event may vegetation be cut lower than 6
inches.
III. GRANTORS’ OBLIGATIONS
AND WARRANTIES
A. Establishment of
Conservation Practices. The Grantor shall establish and
maintain riparian buffers, grass filter strips, wetlands, or hardwood tree
plantings within the Easement Area and along the protected riparian resource in
accordance with a written conservation plan (the “Conservation Plan”). If the Grantor chooses to establish a
forested practice, the buffer must be consistent with a forest management plan
developed for the Easement Area and approved by a forester registered by the
North Carolina State Board of Registration for Foresters (the “Forest
Management Plan”). The Forest Management
Plan shall be prepared in conjunction with the State, the Natural Resource
Conservation Service, and the local Soil and Water Conservation District. All
practices established under CREP shall be maintained according to the
Conservation Plan and the Forest Management Plan. A copy of the Conservation Plan shall be kept
on file in the office of the local Soil and Water Conservation District.
B. Establishment of
C.
Warranty as to Environmental
Conditions. The Grantor warrants that it has no actual
knowledge of the existence
of any hazardous substances or wastes or the release or threatened release of
any hazardous substances or wastes on the Easement Area, and that no notice of
a violation of any state, federal or local environmental law, ordinance,
statute, treaty, decree, rule or regulation has been issued or is pending with
respect to the Easement Area.
D. Indemnity. The
Grantor agrees to the fullest extent permitted by law to defend, protect,
indemnify and hold harmless the District from
and against any and all claims, actions, liabilities, damages, fines,
penalties, costs and expenses suffered as a direct or indirect result of any
violation of this Conservation Easement or of any federal, state or local
statute, rule, regulation or ordinance affecting the Property, the Easement
Area, or this Conservation Easement.
IV. RIGHT OF ENTRY
The Grantee or the Grantee’s
designated representatives shall have the right of ingress, egress and regress
to and across the Property, Easement Area, and existing paths and farm roads,
including but not limited to the lands, paths and farm roads of other property
owners, required to gain access from a public road at all reasonable times for
the purpose of inspecting said Easement Area to determine if Grantor is
complying with the terms, conditions, restrictions, and purposes of this
Conservation Easement. It shall be the
responsibility of the Grantor to provide and ensure the above-referenced right
of entry across the Property, the lands of other owners and existing paths and
farm roads situated thereon, if necessary, to satisfy the terms of this Deed.
V. ENFORCEMENT AND REMEDIES
A. Enforcing Authority. Grantee or its agents, representatives or
designees, shall have the right to enforce all of the terms of this
Conservation Easement. In addition, this
Conservation Easement may only be amended by a written document that is
executed by the Grantor and the Grantee and recorded among the land records of
the appropriate jurisdiction.
B. Methods
of Enforcement. In the event a
violation of these terms, conditions, or restrictions is found to exist, the
Grantee may institute a suit to enjoin by ex parte temporary or permanent
injunction such violation and to require the restoration of the Easement Area
to its prior condition. Additionally,
the parties hereto may agree to binding mediation before the Soil and Water
Conservation Commission of any dispute regarding an alleged violation of this
Conservation Easement.
C. Failure
to Enforce. No failure on the part
of Grantee to enforce any covenant provision hereof shall discharge or
invalidate such covenant or any other covenant, condition, or provision hereof
or affect the right of Grantee or the State of North Carolina to enforce the
same in the event of a subsequent breach or default.
VI. MISCELLANEOUS PROVISIONS
A. Entire Agreement. This instrument sets forth the entire agreement
between the parties with respect to the Conservation Easement. All prior discussions, negotiations,
understandings or agreements relating to the Conservation Easement are hereby
merged into this Conservation Easement.
B. Severability. If any provision of this Conservation
Easement is found to be invalid, the remainder of the provisions of the
Conservation Easement, 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. Gender. The designations Grantor, Grantee, Owner,
District and State as used herein shall
include said parties, their
heirs, successors, and assigns, and shall include singular, plural, masculine,
feminine, or neuter gender as required by context.
D. Headings. The headings of the various sections of this
Conservation Easement have been inserted for convenience only and shall in no
way modify, define, limit or expand the express provisions of this Conservation
Easement.
E. Notices. Any notices shall be sent by registered or
certified mail, return receipt requested, to the parties at their addresses
shown below:
If to Grantee: If
to Owner:
NCDENR
Attn: DSWC (CREP)
1614
F. Transfer of the
Property. Grantor shall notify DENR in writing of the
name and street address of any party to whom the Easement Area or any part of
the Property is to be transferred at or prior to the time said transfer is
made. Such subsequent owner’s name and
address shall be then substituted in paragraph E. hereinabove. Grantor further agrees to make any subsequent
lease, deed or other legal instrument by which any interest in the Easement
Area or the Property is transferred subject to this Conservation Easement.
G. Quiet Enjoyment. Grantor reserves all rights accruing from ownership
of the Easement Area, including the right to engage in or permit or invite
others to engage in all uses of the Easement Area that are not expressly
prohibited or restricted herein and are not inconsistent with the purposes of
the Conservation Easement. Without
limiting the generality of the foregoing, Grantor expressly reserves unto
itself, its invitees, licensees, successors and assigns, the rights of access
to and quiet enjoyment of the Easement Area.
Grantor further reserves unto itself, its licensees, invitees,
successors and assigns the right to hunt, fish, temporarily camp or make any
other recreational use of the Property that does not impact the Conservation
Values of the Easement Area or the Property; provided however, that all such
activity shall be conducted in accordance with all applicable state and federal
laws, rules and regulations pertaining thereto, existing on the date hereof or
as the same may be amended in the future.
The Grantor also reserves the right to charge a fee to any persons
engaged in such activities on the Property.
H. Subsequent Liens on
Property. No provision of this Conservation Easement
should be construed as impairing the ability of Grantor to use the Property as
collateral for any subsequent loan, provided that any mortgage or lien arising
from such a transaction must not be inconsistent with the terms of this
Conservation Easement and must be subordinate to this Conservation Easement.
I. Waste; Impairment of
Title; Payment of Taxes and Other Charges.
Owner shall not destroy, damage or impair the Easement Area, allow
it to deteriorate, commit waste on the Easement Area or otherwise take any
action on the Property or in the Easement Area in conflict with the terms of
the Conservation Plan, the Forest Management Plan or this Conservation
Easement. Owner shall take no action that can
impair his title to the Property unless otherwise allowed by the terms of this
Conservation Easement. Owner shall promptly and regularly pay
all taxes, assessments, charges, fines, and impositions attributable to the
Property that can attain priority over this Conservation Easement.
J. Binding Effect. This Conservation Easement shall run with the
land and be binding on the Grantor hereof, his heirs, administrators,
successors and assigns.
K. Changed Conditions. The grant or donation of this Conservation
Easement gives rise to a property right immediately vested in Grantee, with a
fair market value equal to the proportionate value that the Conservation
Easement bears to the value of the Property as a whole. That proportionate value of Grantee’s
property rights shall remain constant.
If changed conditions occur, which make impossible or impractical any
continued protection of the Property for conservation purposes, the
restrictions contained herein may be extinguished, but only by judicial
proceeding and not by any other manner that may be otherwise in this
Conservation Easement. The Grantee shall
be entitled to a portion of the Proceeds of Sale of such judicial proceedings. Grantee’s portion of the Proceeds of Sale
shall be equal to the proportionate value that Grantee’s interest in the
Easement Area bears to the value of the Property as a whole as of the date of
the recording of this Conservation Easement.
“Proceeds of
L. Condemnation. Whenever
all or part of the Property is taken by exercise of eminent domain by public,
corporate, or other authority, or by negotiated sale in lieu of condemnation,
so as to abrogate the restrictions imposed by this Conservation Easement, the
Grantor shall immediately give notice to Grantee, and shall take all
appropriate actions at the time of such taking or sale to recover the full
value of the taking and all incidental or direct damages resulting from the
taking. Any proceeds recovered in such
actions shall be divided in accordance with the proportionate value of
Grantor’s and Grantee’s interests as specified herein; all expenses including
attorneys’ fees incurred by Grantor and Grantee in such action shall be paid
out of the recovered proceeds to the extent not paid by the condemning
authority. The Grantee, its successors
and assigns, shall be entitled to a portion of the proceeds of such sale,
exchange, involuntary conversion of the Property, or any damage award with
respect to any judicial proceeding. Such
portion shall be equal to the proportionate value that Grantee’s interest in
the Easement Area bears to the value of the Property as a whole as of the date
of the recording of this Conservation Easement.
“Proceeds of
TO HAVE AND TO HOLD the aforesaid rights and easements perpetually and all privileges and
appurtenances thereto unto
Grantee for the aforesaid purposes;
AND
Grantor covenants that it is seized of said premises in fee and has the right
to convey the easement herein granted; that the same are free and clear of
encumbrances and that Grantor will warrant and defend title to the same against
the claims of all persons whomsoever subject to the following permitted
exceptions, if any, to wit: All matters
of record in the Beaufort County Public Registry.
IN WITNESS WHEREOF, Grantors have hereunto set their hands and seals, as of the day and
year first above written.
_____________________________ (SEAL)
Larry A.
Landowner
_____________________________
(SEAL)
Laura A.
Landowner
STATE OF
COUNTY OF ___________________
I, the undersigned, a Notary
Public of the aforesaid county and state do hereby certify that before me this
day personally appeared Larry A. Landowner and wife, Laura A. Landowner,
Grantor and after being first duly sworn, acknowledged the due execution of the
foregoing and annexed instrument for the purposes and intents therein
expressed. Witness my hand and official
seal or stamp, this the _____day of ______________, 2008.
_______________________________ My Commission Expires:___________
Notary Public
Stamp/Seal
PROPERTY OF LARRY A. LANDOWNER AND WIFE, LAURA A. LANDOWNER
Being that
property located in Chocowinity Township, Beaufort County, North Carolina, and
more particularly described in that deed recorded March 15, 2006 in Deed Book _____,
Page ____ of the Beaufort County Registry, incorporated herein for a more
particular, complete and accurate description. Being the same tract of land
assigned FSA Farm No. ___, Tract No. ____, Fields 2 and 3; Tax Parcel
Number.
EXHIBIT B
Being those certain conservation easement tracts or parcels of land containing a total of 9.291 acres more or less as shown on that survey entitled “CONSERVATION EASEMENT ON THE PROPERTY OF LARRY A. LANDOWNER & LAURA A. LANDOWNER”, SURVEYED BY: North Carolina Department of Environment and Natural Resources Division of Soil and Water Conservation, dated JUNE, 2008 recorded in Plat Cabinet ____, Slide _____, Plat ______ Beaufort County Registry incorporated herein by reference.
.
TOGETHER WITH the right of ingress, egress and regress over, upon and across the
Property and the land of other owners from a public road for the purpose of
gaining uninterrupted access to and from the Easement Area described herein.