DECLARATION OF RESTRICTIVE COVENANTS

Transcription

1 DECLARATION OF RESTRICTIVE COVENANTS Instrument Prepared By: Brief Description for Index: Parcel Identifier: Mail After Recording To: THIS DECLARATION RESTRICTIVE COVENANTS (this Declaration ) is established this day of, 2016, by TOWN OF BEAUFORT, a North Carolina municipal corporation (the Declarant ) and Blue Treasure, LLC, a North Carolina limited liability company ( Blue Treasure ). WHEREAS, Declarant is the owner of property located in the Town of Beaufort, Carteret County, North Carolina as more particularly described on in Deed Book 1472, Page 330 in the 1 WITNESSETH: WHEREAS, Declarant is the owner of property located in the Town of Beaufort, Carteret County, North Carolina as more particularly described in Book 1472, Page 331 in the Carteret County Registry (the Registry ), which is also Tract 2B on BOM 32 Page 458 in the Registry and Tract 2B as shown on Exhibit B attached hereto, (the Water Tank Property ) which property has restricted uses as described in such deed. WHEREAS, Declarant is the owner of property located in the Town of Beaufort, Carteret County, North Carolina as more particularly described on in Deed Book 1472, Page 330 in the Registry on Exhibit B thereto in as gravel and paved driveway and parking for up to ten (10) spaces and as depicted on Exhibit B-1 attached thereto, which is also Tract 1A on BOM 32, Page 457 in the Registry and Tract 1A as shown on Exhibit B attached hereto (the Parking Lot Property );

2 Registry, excluding the Parking Lot Property, which is also Tract 2A and 2C on BOM 32, Page 458 in the Registry and Tract 2A and Tract 2C on Exhibit B attached hereto (the Land Application Property ), which property has restricted uses as described in such deed; WHEREAS, Declarant is the owner of property located in the Town of Beaufort, Carteret County, North Carolina as more particularly described on in Deed Book 1360, Page 47 in the Registry, which is also Tract L2A on BOM 31, Page 940 in the Registry and Tract L2A on Exhibit B attached hereto (the Well Site Property and together with the Water Tank Property, the Parking Lot Property, and the Land Application Property, the Restricted Property ), which property has restricted uses as described in such deed; WHEREAS, Blue Treasure previously transferred the Restricted Property and certain agreements related thereto to the Declarant in connection with Blue Treasure s development of the residential subdivision development known as Beaufort East Village and Beau Coast located in the County of Carteret, North Carolina, consisting of approximately 287 acres as described on Exhibit A attached hereto (the Blue Treasure Development ); WHEREAS, the Restricted Property is subject to Stormwater Management Permit Number SW , as issued by the State of North Carolina Department of Environment and Natural Resources, Division of Water Quality under NCAC 2H 1000 by (the Permit ); WHEREAS, as a condition to the Permit, the vesting deeds to the Restricted Property should have contained certain additional restrictions as provided in the Permit, and the Declarant desires to remedy and make such additional restrictions of record as required by the Permit; WHEREAS, the Blue Treasure Development is increasing the tax base and otherwise improving the Town of Beaufort; WHEREAS, the Town has approved by a meeting of the Town of Beaufort Board of Commissioners on April 11, 2016 that the impervious surface of the Water Tank Property, Parking Lot Property, Well Site and Land Application Property are restricted as set forth in this Declaration and shown on Exhibit B attached hereto; WHEREAS, the Town wishes to allow Blue Treasure the right to apply to the Blue Treasure Development extra impervious surface rights representing the difference between the impervious surface rights allowed by applicable ordinances and the impervious surface area permitted on the Restricted Property under this Declaration; and WHEREAS, Declarant wishes to restrict the impervious surface development with respect to the Restricted Property; NOW, THEREFORE, Declarant does hereby declare for its respective benefit and the benefit of its successors and permitted assigns that title to the Restricted Property shall be held, conveyed, sold, transferred, given, donated, leased, occupied, and used subject to the terms of this Declaration of Restrictive Covenant, the burdens of which shall be binding upon and shall run with the title to the Restricted Property. 2

3 1. Permit and Deed Restrictions. Pursuant to the Permit, the Restricted Property is hereby encumbered as follows: a. The following covenants are intended to ensure ongoing compliance with State Stormwater Management Permit Number SW , as issued by the Division of Water Quality under NCAC 2H b. The State of North Carolina is made a beneficiary of these covenants to the extent necessary to maintain compliance with the Stormwater Management Permit. c. These covenants are to run with the land and be binding on all persons and parties claiming under them. d. The covenants pertaining to stormwater may not be altered or rescinded without the express written consent of the State of North Carolina, Division of Water Quality. e. Alteration of the drainage as shown on the approved plans may not take place without the concurrence of the Division of Water Quality. f. The maximum built upon area per lot is as follows: Lot Numbers Max BUA (sq. ft.) 1-4 1, , , , , , , , , ,000 This allotted amount includes any built-upon area constructed within the lot property boundaries, and that portion of the right-of-way between the front lot 3

4 line and the edge of the pavement. Built upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, coquina and parking areas, but does not include raised, open wood decking, or the water surface of swimming pools. g. For those lots within CAMA s Area of Environmental Concern, where DCM calculates a different maximum lot built-upon area, the governing maximum lot BUA shall be the most restrictive of the two amounts. h. Built-upon area in excess of the permitted amount will require a permit modification i. Each lot within the low density portion of this project will maintain a minimum 30 foot wide vegetated buffer between all impervious areas and surface waters. j. Within the low density portions of the permitted project, all roof drains shall terminate at least 30 feet from the mean high water mark of surface waters. 2. Impervious Surface. a. The impervious surface allowed on the Water Tank Property shall not exceed 6,500 square feet. The general plan for the impervious surface is for theits development of an elevated water tank to be located generally as shown on Exhibit C; provided, however, that except for the limitation on impervious surface set forth herein and in Section 1, the provisions of the deed of the Water Tank Property shall continue to govern the development of such property, including, without limitation, any conditions, covenants, or restrictions set forth therein. b. The impervious surface allowed on the Parking Lot Property shall not exceed 11,500 square feet. The general plan for the impervious surface is for theits development of a parking lot to be located generally as shown on Exhibit D; provided, however, that except for the limitation on impervious surface set forth herein and in Section 1, the provisions of the deed of the Parking Lot Property shall continue to govern the development of such property, including, without limitation, any conditions, covenants, or restrictions set forth therein. c. No impervious surface shall be allowed on the Land Application Property (except as provided herein with respect to the Parking Lot Property); provided, however, that except for the limitation on impervious surface set forth herein and in Section 1, the provisions of the deed of the Land Application Property shall continue to govern the development of such property, including, without limitation, any conditions, covenants, or restrictions set forth therein. d. The impervious surface allowed on the Well Site Property shall not exceed 8,000 square feet. The general plan for the impervious surface is for theits development of the Well Site; provided, however, that except for the limitation on impervious surface set forth herein and in Section 1, the provisions of the deed of the Well Site Property shall continue to govern the development of such property, including, without limitation, any conditions, covenants, or restrictions set forth therein. 4

5 3. Granting of Impervious Surface Rights. Declarant hereby grants, transfers and perpetually assigns to Blue Treasure all of the impervious surface rights of the Restricted Property, except for the amount of impervious surface square footage that is permitted on the Restricted Property in this Declaration, i.e. 6,500 square feet for the Water Tank Property; 11,500 square feet for the Parking Lot Property; and 8,000 square feet for the Well Site Property ( Town s Impervious Surface ). Blue Treasure may use such rights in its discretion to allow an increase to the amount of impervious surface that would otherwise be allowed on any portion of the Blue Treasure Development under ordinances of the Town of Beaufort, the State of North Carolina Division of Energy, Mineral, and Land Resources Division, and other applicable ordinances ( Applicable Law ). For the avoidance of doubt, Blue Treasure may develop the Blue Treasure Development by applying the square footage of the Restricted Property, except for the Town s Impervious Surface, in its calculation of impervious surface pursuant to Applicable Law. Blue Treasure shall notify the Town in writing of any use of the impervious surface rights granted under this Declaration, and the Town shall keep a ledger showing the amount of impervious surface so used by Blue Treasure. After application, such additional impervious rights shall benefit the applicable portion of the Blue Treasure Development in perpetuity. Blue Treasure may in its discretion transfer all or any portion of the impervious surface rights granted under this Declaration to any party who is transferred all or any portion of the Blue Treasure Development for application in such assignee s discretion to the portion of the Blue Treasure Development so acquired, and Blue Treasure shall notify the Town of such assignment. 4. Term and Termination. The deeds to the Restricted Property described in the Recitals hereto shall not otherwise be affected by this Declaration. This Declaration shall be perpetual, except as provided herein. No modification or amendment to this Declaration shall be effective unless executed and acknowledged by Declarant and Blue Treasure and recorded in the Carteret County Register of Deeds. 5. Miscellaneous. This Declaration shall be binding upon Declarant and any successor owner of fee simple title to the Restricted Property, and shall inure to the benefit of Declarant or any successor to Declarant s rights under this Declaration. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require. This Declaration may be executed in multiple counterparts, each of which shall be considered an original. 6. Notices. The delivery of any item and the giving of notice in compliance with this Agreement shall be accomplished in writing by personal delivery or by nationally recognized overnight courier, addressed, to, with respect to Declarant, Town of Beaufort, a North Carolina municipal corporation, 701 Front Street, Beaufort, NC and with respect to Blue Treasure, Blue Treasure, LLC, c/o Timothy R. Smith, Preston Development Company, 100 Weston Estates Way, Cary, North Carolina Any notice given in accordance with the provisions of this section shall be deemed effective, if personally delivered, on the date of such delivery, or if sent by overnight courier, on the date upon which the delivery is accepted or refused or the notice is designated by the courier as not deliverable, as the case may be. Notwithstanding anything to the contrary in this Section, either Declarant or any Owners may change its address for the giving of notices hereunder by written notice to the other parties to this Declaration. 5

6 7. Further Assurances. If for any reason this Declaration is invalid, the Declarant shall do all such additional and further acts, and shall execute and deliver all such additional and further deeds, affidavits, instruments, certificates and documents, as Blue Treasure or Blue Treasure s counsel may reasonably require fully to vest in and assure to Blue Treasure full right, title and interest in and to impervious surface credits, to the full extent contemplated by this Agreement and otherwise to effectuate the impervious surface limitations and credits as contemplated by and provided for in this Agreement. [Signature Page Attached Hereto.] 6

7 IN WITNESS WHEREOF, Declarant duly executes the foregoing, the day and year first above written. STATE OF NORTH CAROLINA Town of Beaufort, a North Carolina municipal corporation By: Name: Its: COUNTY OF CARTERET I, the undersigned, a Notary Public of the County and State aforesaid, certify that, whose identity has been proven by satisfactory evidence, said evidence being: I have personal knowledge of the identity of the principal(s) I have seen satisfactory evidence of the principal s identity, by a current state or federal identification with the principal s photograph in the form of a A credible witness has sworn to the identity of the principal(s); personally came before me this day and acknowledged that he is the of, a North Carolina, and that he, in such capacity and being authorized to do so, voluntarily executed the foregoing on behalf of the municipal corporation for the purpose stated therein and in the capacity indicated. Witness my hand and seal, this the day of, My Commission Expires: Notary Public Print Name: [AFFIX NOTARY SEAL BELOW-NOTE THAT SEAL MUST BE FULLY LEGIBLE] 7

8 EXHIBIT A Blue Treasure Property 1

9 EXHIBIT B Impervious Surface Limitations 9

10 EXHIBIT C Water Tank Property 1

11 Exhibit D Parking Lot Property 1