North Carolina Conservation Easement

CONSERVATION EASEMENT

STATE OF NORTH CAROLINA     PIN NO.

COUNTY OF

THIS CONSERVATION EASEMENT ("Conservation Easement") is made on

this day of by and between

with an address at: (“Grantor”) and a non-profit corporation organized and existing under the laws of State of North Carolina with an address at North Carolina (“Grantee”).

RECITALS & CONSERVATION PURPOSES

A. Grantor is the sole owner in fee simple of the property containing acres more or less, located in County, North Carolina, and more particularly described in an instrument recorded in Book Page (hereinafter the “Property”) and further described in Exhibit A attached hereto and by this reference incorporated herein; and

B. WHEREAS, Grantor and Grantee have agreed to set aside acres of the Property (as described herein below and hereinafter referred to as the “Easement Area”), for the purpose of 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”).

C. The Easement Area is depicted on a survey dated revised entitled prepared by and further described in Exhibit B attached hereto and by this reference incorporated herein; and

D. Grantee is a non-profit organization established for the purpose of promoting the preservation of ecologically valuable lands, natural and wildlife habitat, and lands with significant natural and open space values in the State of North Carolina for charitable, scientific, educational and aesthetic purposes.

E. Grantor and Grantee recognize that the Easement Area is located adjacent to the and its tributaries, and the Easement Area has been deemed by the State of North Carolina to qualify as a riparian buffer, addressing the cleanup and prevention of pollution of the State’s surface waters, and the establishment of a network of riparian buffers. Moreover, Grantor and Grantee recognize that the Easement Area has other conservation values including fish and wildlife conservation, open space and scenic values.

F. The Clean Water Management Trust Fund, (“Fund”) with an address at 1651 Mail Service Center, Raleigh, North Carolina 27699-1651 is an agency of the State of North Carolina (“State”), with an address at c/o State Property Office, 1321 Mail Service Center, Raleigh, North Carolina 27699-1321, and is authorized by Article 13A, Chapter 113 of the General Statutes of North Carolina to finance projects and to acquire land and interests in land, including conservation easements for riparian buffers for the purposes of providing environmental protection for surface waters and urban drinking water supplies; and

G. Grantee has received a grant from the Fund identified as Grant Agreement No. (“Grant Agreement”) for acquisition of a Conservation Easement in consideration of which Grantor has agreed that the Easement Area will be conserved and managed in a manner that will protect the quality of waters of the and otherwise promote the public purposes authorized by Article 13A, Chapter 113 of the North Carolina General Statues (“N.C.G.S.”)

H. The Grantor, Grantee, State and Fund (collectively referred to herein as the “Parties”) hereto intend that the conservation values of the Easement Area will be preserved and managed pursuant to the terms and conditions of said Grant Agreement entered into between the Grantee and the Fund on the day , incorporated herein by reference, and available for inspection in the offices of the North Carolina Department of Environment and Natural Resources, the Grantor and Fund.

I. Grantor and Grantee acknowledge that the characteristics of the Easement Area, its current use and state of improvement are described in Exhibit C, which is the appropriate basis for monitoring compliance with the objectives of preserving the conservation and water quality values; and that the Exhibit C is not intended to preclude the use of other evidence (e.g. surveys, appraisals) to establish the present condition of the Easement Area if there is a controversy over its use.

NOW, THEREFORE, in consideration of the premises and the mutual benefits recited herein, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the Grantor hereby unconditionally and irrevocably gives, grants and conveys forever and in perpetuity to the Grantee, its successors and assigns, and the Grantee hereby accepts, a Deed of Conservation Easement of the nature and character and to the extent hereinafter set forth in, over, through and across the Easement Area, together with the right to preserve and protect the conservation values thereof as described in the Recitals herein.

The purposes of this Conservation Easement are to provide environmental protection for surface waters and to protect the wildlife and natural heritage values and it shall be so held, maintained, and used therefore. It is the further purpose of this Conservation Easement to prevent any use of the Easement Area that will significantly impair or interfere with the preservation of said conservation values. Grantor intends that this Conservation Easement will restrict use of the Easement Area to such activities as are consistent with the conservation values described in the Recitals herein.

ARTICLE I. DURATION OF EASEMENT

This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land, and is enforceable by Grantee against Grantor, its representatives, successors, assigns, lessees, agents and licensees.

ARTICLE II. RIGHTS RESERVED TO GRANTOR

Grantor reserves certain rights accruing from fee simple ownership of the Easement Area, including the right to engage in or permit others to engage in uses of the Easement Area that are not inconsistent with the purpose(s) of this Conservation Easement. All rights reserved by Grantors are reserved for Grantors, their representatives, successors, and assigns, and are considered to be consistent with the conservation purposes of this Conservation Easement. The following rights are expressly reserved:

FOR EXAMPLE

A. Passive Recreational Use. Grantor reserves the right to engage and permit others to engage in passive recreational uses of the Easement Area, requiring no surface alteration of the land and posing no threat to conservation values, including, without limitation, walking, fishing, or animal and plant observation; and any other purpose consistent with maintaining the conservation values of this Conservation Easement.

B. Pedestrian Traffic. Grantor reserves the right to construct and maintain naturally surfaced walking and hiking trails to increase and enhance public exposure to the Easement Area to the public in its natural and scenic condition while preserving the conservation values of the Easement Area. Any trails must be constructed with pervious materials, except where boardwalks, ramps and handrails are required by the terrain, and must be located at a minimum of fifteen (15) feet from the top of the bank of and in a manner that does not materially diminish the wooded, open space character and scenic and natural qualities of the Easement Area as compared to those conditions existing on the date of this Conservation Easement.

C. Canoe Access. Grantor reserves the right to construct, maintain and repair a canoe access site with launch and chute within the Easement Area to be located on the bank of the provided said access site is connected to the walking and hiking trails permitted herein.

Notwithstanding the foregoing, Grantor and Grantee have no right to agree to any activity that would result in the termination of this Conservation Easement.

ARTICLE III. PROHIBITED AND RESTRICTED 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, scenic, wooded and open condition and restricted from any development or use that would impair or interfere with the conservation purposes of this Conservation Easement set forth above.

Except for those rights specifically reserved to Grantor in Article II and without limiting the generality of the foregoing, the following activities and uses are expressly prohibited or restricted.

A. Industrial and Commercial Use. Industrial and commercial activities and any right of passage for such purposes are prohibited on the Easement Area.

B. Agricultural, Timber Harvesting, Grazing and Horticultural Use. Agriculture, timber harvesting, grazing, horticultural and animal husbandry operations are prohibited on the Easement Area.

C. Disturbance of Natural Features, Plants and Animals. There shall be no cutting or removal of trees, or the disturbance of other natural features within the Easement Area except for the following: (1) as incidental to boundary marking, fencing, signage, (2) selective cutting and prescribed burning or clearing of vegetation and the application of mutually approved pesticides for fire containment and protection, disease control, restoration of hydrology, wetlands enhancement and/or control of non-native plants; subject however, to the prior approval of Fund, and (3) hunting and fishing pursuant to applicable rules and regulations.

D. Construction of Buildings and Recreational Use. 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 Easement Area except for the following: placement and display of no trespassing signs, local, state or federal traffic or similar informational signs, for sale or lease signs, boundary fencing, signs identifying the conservation values of the Easement Area, and/or signs identifying the Grantor as owner of the Property and State as holders of this Conservation Easement and Fund as the source of funding for the acquisition of the Conservation Easement, educational and interpretative signs, identification labels or any other similar temporary or permanent signs, reasonably satisfactory to the Fund.

E. Mineral Use, Excavation, Dredging. There shall be no 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 except as necessary for the purpose of combating erosion or incidental to any conservation management activities otherwise permitted in the Easement Area.

F. Wetlands and Water Quality. There shall be no pollution or alteration of water bodies and no activities that would be detrimental to water purity or that would alter natural water levels, drainage, sedimentation and/or flow in or over the Easement Area or into any surface waters, or cause soil degradation or erosion nor diking, dredging, alteration, draining, filling or removal of wetlands, except activities to restore natural hydrology or wetlands enhancement as permitted by state and any other appropriate authorities.

G. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances, or machinery, or other materials on the Easement Area is prohibited.

H. Conveyance and Subdivision. The parties recognize that Grantor may wish to subdivide, partition and convey the Property, subject to the ordinances and regulations of the State of North Carolina, . While the Easement Area itself cannot be subdivided or otherwise separated from the Property, the parties acknowledge that the Easement Area may be divided among the several lots that would be created through a proper subdivision of the Property.

OR

H. Conveyance and Subdivision. The Property may not be subdivided, partitioned nor conveyed, except in its current configuration as an entity or block of property.

I. Mitigation. There shall be no use of the Easement Area or any portion thereof to satisfy compensatory mitigation requirement under 33 U.S.C. Section 1344 or N.C.G.S. 143-214.11.

ARTICLE IV. ENFORCEMENT AND REMEDIES

A. Enforcement. To accomplish the purposes of this Conservation Easement, Grantee is allowed to prevent any activity on or use of the Easement Area that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Area that may have been 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, except as provided below, notify the Grantor in writing of such breach. The Grantor shall have ninety (90) days after receipt of such notice to correct the conditions constituting such breach.

B. Right of Entry and Inspection. Grantee, its employees and agents and its successors and assigns, have the right, with reasonable notice, to enter the Property and Easement Area at reasonable times for the purpose of inspecting the Easement Area to determine whether the Grantor, Grantor’s representatives, or assigns are complying with the terms, conditions and restrictions of this Conservation Easement.

C. 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, State and the Fund, 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.

D. Changed Conditions. When a change in conditions gives rise to the extinguishment of this Conservation Easement or a material term or provision hereof by judicial proceeding, the Grantee, its successor 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.

E. Acts Beyond Grantor’s Control. 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 Easement Area caused by third parties, resulting from causes beyond the Grantor’s control, including, without limitation, fire, flood, storm, and earth movement.

F. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Conservation Easement against Grantor, including, without limitation, any costs of restoration necessitated by Grantor’s acts or omissions in violation of the terms of this Conservation Easement, shall be borne by Grantor.

G. No Waiver. Enforcement of this Conservation Easement shall be at the discretion of the Grantee and any forbearance by Grantee to exercise its rights hereunder in the event of any breach of any term set forth herein shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or of any other term of this easement or of Grantee’s rights.

ARTICLE V. DOCUMENTATION AND TITLE

A. Easement Area Condition. The parties acknowledge that the Easement Area is undeveloped, with no improvements other than as described in Exhibit C and easements and rights of way of record.

B. Title. The Grantor covenants and represents that the Grantor is the sole owner and is seized of the Easement Area in fee simple and has good right to grant and convey the aforesaid Conservation Easement.

ARTICLE VI. MISCELLANEOUS

A. Subsequent Transfers of the Fee. Grantor agrees for itself, its successors and assigns, that in the event it transfers the Property, or any portion thereof, to include the Easement Area described herein, to notify the Grantee and the State in writing of the names and addresses of any party to whom the Property is to be transferred at or prior to the time said transfer is consummated.

B. Subsequent Transfers of the Conservation Easement. The Parties hereto recognize and agree that the benefits of this Conservation Easement are in gross and assignable.

C. Existing Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantee, or in any way to affect any existing obligation to the Grantor as owner of the Property, which includes the Easement Area.

D. Conservation Purpose. (1) Grantor and Grantee, for itself, its successors and assigns, agrees that this Conservation Easement shall be held exclusively for conservation purposes set forth by the Grant Agreement, this Conservation Easement and as specified in Section 170(h)(4)(A).

(2) Unless otherwise specifically set forth in this Conservation Easement, nothing herein shall convey to or establish for the public a right of access over the Property and Easement Area.

(3) This Conservation Easement shall be construed to promote the purposes of the North Carolina enabling statute set forth in N.C.G.S. 121-34 et. Seq.

E. Recording. Grantee shall record this instrument and any amendment hereto in timely fashion in the official records of North Carolina, and may re-record it at any time as may be required to preserve Grantee's rights.

F. Notices. All notices, requests or other communications permitted or required by this Agreement shall be sent by registered or certified mail, return receipt requested, addressed to the parties as set forth above, or to such other addresses such party may establish in writing to the other.

G. Amendments. Grantor and Grantee are free to jointly amend this Conservation Easement to meet changing conditions, provided that no amendment will be allowed that is inconsistent with the purposes of this Conservation Easement or affects the perpetual duration of this Conservation Easement.

H. Environmental Condition of Easement Area. The Grantor warrants, represents and covenants to the Grantee that to the best of its knowledge after appropriate inquiry and investigation that the Easement Area described herein is and at all times hereafter will continue to be in full compliance with all federal, state and local environmental laws and regulations.

I. Entire Agreement. 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.

J. Indemnity. The Grantor agrees to the fullest extent permitted by law, to defend, protect, indemnify and hold harmless Grantee from and against all claims, actions, liabilities, damages, fines, penalties, costs and expenses suffered as a direct or indirect result of any violation of any federal, state, or local environmental or land use law or regulation.

K. Interpretation. This Conservation Easement shall be construed and interpreted under the laws of the State of North Carolina, and any ambiguities herein shall be resolved so as to give maximum effect to the conservation purposes sought to be protected herein.

L. Parties. Every provision of this Conservation Easement that applies to the Grantors or to the Grantee shall likewise apply to their respective heirs, executors, administrators, assigns, and grantees, and all other successors in interest herein.

M. Merger. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Property and Easement Area.

N. Subsequent Liens. No provisions of this Conservation Easement shall be construed as impairing the ability of Grantors to use this Easement Area for collateral for borrowing purposes, provided that any mortgage or lien arising therefrom shall be subordinated to this Conservation Easement.

TO HAVE AND TO HOLD unto THE STATE OF NORTH CAROLINA, its successors and assigns, forever. The covenants agreed to and the terms, conditions, restrictions and purposes imposed as aforesaid shall be binding upon Grantor, Grantor’s representatives, successors and assigns, and shall continue as a servitude running in perpetuity with the Easement Area.

IN WITNESS WHEREOF, Grantor has hereunto set his/her hand and seal, or if corporate, has caused this instrument to be signed in its corporate name by its duly authorized officers and its seal to be hereunto affixed by authority of its Board of Directors, the day and year first above written.

I, , a Notary Public of County and State of, certify that personally appeared before me this day and acknowledged the execution of the foregoing instrument. Witness my hand and official stamp or seal, this day of , 20 .

My Commission Expires:

Notary Public

STATE OF NORTH CAROLINA
COUNTY OF

  Signature   Date

The foregoing certificate of , Notary Public, is certified to be correct.

This day of , 20 .

This instrument prepared by Clean Water Management Trust Fund and by

EXHIBIT A

Legal description of Property: Attach the description from the current Deed Book and Page to include Map Book and Page or reference to survey, if any. Also include the PIN NUMBER or TAX MAP IDENTIFICATION NUMBER

IF APPLICABLE:

Together with the right of ingress, egress and regress as provided by that certain Access Agreement provided by and recorded in Book , Page Name of County Registry.

EXHIBIT B

Legal Description of the Easement Area may be described by reference to a recorded survey with the a recited Map/Plat Book and Page, which survey has been approved by the Fund

Or

By a metes and bounds description with reference made to a survey which has been approved by the Fund.

IF APPLICABLE:

Together with the right of ingress, egress and regress over, upon and across the Property to and from the Easement Area.

EXHIBIT C

Characteristics of the Property and Easement Area, its current use, state of improvements, water quality sensitive species, including rare and endangered species.

Conditions