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HomeMy WebLinkAbout20075356f1UM PAGES CJ ' 7JOC TAX. PD''CII.C_~ TEES ~~. Sly PD '7~1. SO CK", /~ CHG ACCTA RF:T PEES: CASrI R.O.D. CK6 RECD /' iu.TURx )) ~ OC C-' ~~n0 ~~ pr3c) ~V! ~os~ lanaA NE/ 08973 !NIIIM~-IIVII~I~U' NUM: 30. 7 -17 RD COMP: x G~ y--•o4 ADAMS`C~OUNTY, NE INST. N0. ~+L~DU ~ ~ 3 5 6 Date1~ - 7-Q7 Time ~ ~o~M REGISTER OF DEEDS RECORDERS MEMO: wRrrpn 1v~asnmEn~ COMPAIZ~: d~tfl .~;l~d wt~Q onr landoLuner S,`ona-Fure as CADAS: - AO / Per 5).andA Wtbtr and RusslU Ochsner. ' ok ah I2ESEItVED I+ OR REGISTER` Or DEEDS RECORDING SPACE ADAMS COUNTY NE PAGE 1 OF ~ PAGES ;..; xT:: .,., ~„ ''i 1.,,~ ~„~ „v t-. 2QU75356 WARRANTY EASEMENT DEED Adams County Nebraska Wetland Conservation Mitigation No. 001-2007-7652-1 THIS WARRANTY EASEMENT DEED is made by and betweefrRussell Ochsner and Denise Ochsner, of Roseland Nebraska (hereafrer referred to as the "Landowner"), Grantor, and the UNITED STATES OF AMERICA, by and through the Secretary of Agriculture, Washington DC 20250 (hereafter referred to as the "United States"), Grantee. The Landowner and the United States are jointly referred to as the "Parties". The acquiring agency of the United States is the Commodity Credit Corporation (CCC) of the Department of Agriculture. This conveyance is in conjunction with Wetland Mitigation Agreement No. #001-2007-7652-1, which is appended to'and made a part of this easement deed as EXHIBIT A. - Witnesseth Authority. This easement deed acquisition is authorized by the Wetland Conservation Provisions, Title XII, Subtitle B of the Food Security Act of 1985 (Public Law 99-198), as amended by Subtitle C of Title XIV of the Pood, Agriculture, Conservation, and Trade Act of 1990 (Public Law 101-624; 104 Stat. 354-3575; 16 U.S.C. 3821, et seq.). Purposes and Intent. The purposes of this easement are to effect the referenced Wetland Mitigation Agreement, to assure that equivalent functions and values of a converted wetland (EXHIBIT E) are replaced and maintained in order to meet the objectives of the Wetland Conservation Provision and , in particular, to assure that the mitigation/replacement wetland areas identified in this easement will be maintained for the period of the easement as specified in this document. NOW THEREFORE, for and in consideration of the above referenced Wetland Mitigation Agreement, and/or other goods and valuable consideration, receipt of which is hereby acknowledged, the LANDOWNER, the Grantor(s), hereby grants and conveys with general warranty of title to the UNITED STATES OF AMERICA and its assigns, the GRANTEE, forever,, all rights, title and interest in the lands comprising the easement area described in Part I and appurtenant rights of access to the easement area, but reserving to the Landowner only those rights, title and interest expressly enumerated in Part IL It is the intention of the Landowner to' convey and relinquish any and all other property rights not so reserved. This easement shall constitute a servitude upon the land so encumbered, shall run with the land until such time as the United States conveys and quitclaims to the Landowner the rights herein conveyed, and shall bind the Landowner(s), their heirs, successors, assigns, lessees, and "any other person claiming under them. SUBJECT, however, to all valid rights of record, if any. PART I. Description of the Easement Area. The lands encumbered by this easement deed, referred to hereafrer as the easement area, are described on EXHIBIT B which is appended to and made a part of this easement deed. TOGETHER with a right of access for ingress and egress to the easement area across adjacent or other properties of the Landowner. Such aright-of--way for access purposes is described in EXHIBIT C which is appended to and made a part of this easement deed. Part II. Reservations in the Landowner on the Easement Area. Subject to the rights, title, and interest conveyed by this easement deed to the United States, the Landowner reserves: A. Title. Record title, along with the Landowner's right to convey, transfer, and otherwise alienate title to these reserved rights. B. Ouiet Enjoyment. The right of quiet enjoyment of the rights reserved on the easement area. C. Control of Access. The right to prevent trespass and control access by the general public. G2 itit ~ ~; .,r;, ' t ,a~, ? ""~ ; ;; ~'~ ~,~ .. .. -.~. +.,.~ . 't.. ~~~:~ 200'75356 D. Recreational Uses. The right to undeveloped recreational uses, including hunting and fishing, and including leasing of such rights for economic gain, pursuant to applicable State and Federal regulations that maybe in effect at the time. E. Subsurface Resources. The right to oil, gas, minerals, and geothermal resources underlying the easement area, provided that any drilling or mining activities are to be located outside the boundaries of the easement area unless activities within the boundaries are specified in accordance with the terms and conditions of EXHIBIT D (none). PART III. Obligations of the Landowner. The Landowner shall comply with all terms and' conditions of this easement, including the following: , A. Prohibitions. Unless authorized under the Wetland Mitigation Agreement, it is expressly understood that the rights to the following activities and uses have been acquired by the United States and are prohibited of the Landowner on the easement area: 1. haying, mowing, or seed harvesting for any reason; 2. altering of grassland, woodland, wildlife habitat or other natural features by burning, digging, plowing, disking, cutting or otherwise destroying the vegetative cover; 3. dumping refuse, wastes, sewage or other debris; 4. harvesting wood products; 5. draining, dredging, channeling, filling, leveling, pumping, diking, impounding or related activities, as well as altering or tampering with water control structures or devices; 6. diverting or causing or permitting the diversion of surface or underground water into, within or out of the easement area by any means; 7. planting or harvesting any crop; and 8. grazing or allowing livestock on the easement area. B. Taxes. The Landowner shall pay any and all real property and other taxes and assessments, if any, which maybe levied against the land. C. Reporting. The Landowner shall report to the CCC any conditions or events which may adversely affect the wetland, wildlife, and other natural values of the easement area. PART IV. The Wetland Mitigation Agreement. A. General. The Wetland Mitigation Agreement (WMA), is an agreement between the Landowner and the Natural Resources Conservation Service (NAGS) and the Fish and Wildlife Service (FWS) to. mitigate (or replace) wetland values that would be lost as the result of the conversion of another wetland, described below, in order for the Landowner to remain eligible for US Department of Agriculture UUSDA) farm program benefits under the Wetland Conservation Provisions of the Food Security AcC of 1985, as amended by the Food, Agriculture, Conservation, and Trade Act of 1990. The WMA, appended to and made part of this easement deed as Exhibit A, shall be on file and available for inspection at the county office of the USDA's Farm Service Agency for the county identified above. B. The Property Containing the. Wetland Converted. The property containing the converted wetland, .the "Converted Wetland Area", the lost wetland functions and values of which the mitigation/restoration provisions contained in this easement deed and WMA are to replace, is described as follows: (Refer to Exhibits A and B) C. Compliance. The Landowner covenants compliance with all the terms and conditions of the WMA 3 of ~ f t i, i• ..d 200`75356 D. Amendments. Nothing herein shall preclude the Landowner and the United States, through the NRCS and with agreement from the FWS, from amending the WMA in the future and recording the same in the appropriate land records. E. Conflicts and A~nbieuities. In the event of a conflict or ambiguity between the WMA or this easement deed, the provisions of this easement deed shall prevail. F. Costs. All costs involved in the establishment and maintenance of the restored wetland and the right of access granted to the United States herein, or otherwise incurred with respect to the maintenance of the easement area in accordance with this easement deed, shall, together with all other charges associated with the easement area, be the responsibility of the Landowner.' Federal funds shall not be used in the implementation of such physical wetland mitigation replacement actions. Federal funds may be used for technical assistance, monitoring, and administrative activities associated with the mitigation/restoration project. PART V. Rights of the United States. The rights of the United States include: A. Management activities. The United States shall have the right to enter unto the easement area to undertake any activities to restore, protect; monitor, and manage the wetland and other natural values of the easement area. B. Access. The United States has a right of reasonable ingress and egress to the easement area over the Landowner's property, whether or not the property is adjacent or appurtenance to the easement area, for the exercise of any of the rights of the United States under this easement deed. The authorized representatives of the United States may utilize vehicles and other reasonable modes of transportation for access purposes. C. Easement Management. The Secretary of Agriculture, by and through the CCC, may delegate all or part of the management, monitoring or enforcement responsibilities under this easement to any entity authorized by law that the CCC determines to have appropriate authority, expertise and resources necessary to carry out such delegated responsibilities. State or federal agencies may utilize their general statutory authorities in the administration of any delegated management, monitoring or enforcement responsibilities for this easement. D. Violations and Remedies -Enforcement. The Parties agree that this easement deed may be introduced in any enforcement proceeding as the stipulation of the Parties hereto. If there is any failure of the Landowner to comply with any of the provisions of this easement deed, the United States or other delegate authority shall have any legal or equitable remedy provided by law and the right: 1. To enter upon the easement area to perform necessary work for prevention of or remediation of damage to wetland or other natural values; and, 2. To assess all expenses incurred by the United States (including any legal fees or attorney fees) against the Landowner, to be owed immediately to the United States. PART VI. General Provisions. A. Successors in Interest. The rights granted to the United States shall accrue to any of its agents, successors, or assigns. All obligations of the Landowner under this easement deed shall also bind the Landowner's heirs, successors, agents, assigns, lessees, and any other person claiming under them. All the Landowners who are parties to this easement deed shall be jointly and severally liable for compliance with its terms. B. Rules of Construction and~ecial Provisions. •AlLrights in the easement area not reserved by the Landowner shall be deemed acquired by the United States. Any ambiguities in this easement deed shall be construed in favor of the United States to effect the wetland and conservation purposes for which this ~0 f 200'75356 easement deed _is being acquired. The. property rights of the United States acquired under this easement shall be unaffected by any subsequent amendments or repeal of the Wetland Conservation Provisions. If the Landowner receives the consideration for this easement in installments, the Parties agree that the conveyance of this easement shall be totally effective upon the payment of the first installment. PART VII. Special Provisions. Duration of Easement. The easement shall remain in effect as described below: In the event that the Landowner believes that the conditions necessary to keep the easement in force are ao longer applicable to the land, then the Landowner may request a termination of the easement from the United States, which will, at its discretion, make a determination and terminate the easement if, in its opinion, the conditions for termination are met: This easement will remain in force for as long as the Converted Wetland Area identified in Part IV - B of this easement deed, for which the restoration is to mitigate, is not returned to its original wetland condition with equivalent functions and values. TO HAVE AND TO HOLD, this Warranty Easement Deed is granted to the United States of America and its successors and assigns forever. The Landowner covenants that he, she or they are vested with good title to the easement area and will warrant and defend the same on behalf of the United States against all claims and demands. The Landowner covenants to comply with the terms and conditions enumerated in this document for the use of the easement area and adjacent lands for access, and to refrain from any activity not specifically allowed or that is inconsistent with the purposes of this easement deed. a ~ ~e.~i~f'9 s~A In the State -©r~eysauiet~,weelt ~ County, borough or Parish of on this ~`~~~ day of ~ d' , 20 D ,~, before me, the undersigned, a Notary Public in and for said jurisdiction, personally appeared me known to be the person s) described in and who executed the foregoing instrument, and acknowledged that execut d the same as~i ,f e ct and deed, IN TESTIMONY WHEREOF, I have hereunto my hand and Notarial Seal subscribed and affixed in said jurisdiction, the day and year above written. Dated this ~~~•~'"~ day of ~~~°~/" ~~~ , 20 ~ /. Landowner(s): \,.)_' ~ p (Seal) (Seal) >~~i Acknowledgement No ry Public 5'm~8.. My Commission Expires: C~hEf?ll!.;I:Ia6Y•St~r~ of Ar, Si R09ERT F. REINSCH ~=',;!p';~=, MyCmxr~.E~.June7,20D3 ~: 200'75356 ,~ 'EXHIBIT A WETLAND MITIGATION AGREEMENT Russell Ochsner 7860 S Liberty Ave Roseland NE 68973-1743 This wetland Mitigation Agreement No 001-2007-7652-I stipulates the terms that must be met in order to receive and maintain a mitigated wetland (MIW) exemption that allows the conversion of an existing wetland. I, Russell Oschner understand that complying with the terms of this agreement will maintain this designation. The converted wetlands and the (restored, enhanced, or created wetlands) are located in the north east quarter of Section 30, Township 7 North, Range 11 West in Adams County, Nebraska as shown on the attached map as EXHIBIT B. We hereby agree that the terms of this agreement must be followed and maintained to the satisfaction of the USDA, Natural Resources Conservation Service (MRCS). We agree to provide USDA personnel the right of access to the areas involved in.order to verify compliance with this agreement. Terms '. 1. The wetland to be converted is located on the attached map Exhibit B and is designated as the converted wetland area (MIW). This area (0.6 acres in size) is a wetland and will be filled by an earth mover to make possible and/or improve the ability to produce an agricultural commodity as well as facilitate the movement of center pivot irrigation equipment. 2. To mitigate the conversion, a wetland designated as the mitigation wetland (Easement Site + Wetland) (0.6 acres in size) on the attached map Exhibit B. 3. The mitigation wetland (Easement Site + W) will be created and maintained to ieplace the wetland functions and values that will be lost on the converted wetland area (MIW): Shallow uneven excavations will be used. Excavate no deeper than 18 inches and no shallower than 6 inches. Bottom of wetland will.be compacted by the earth mover used to excavate it. A small dike will be constructed and maintained in the channel to facilitate water holding in the wetland. The dike will be no higher than 2 foot above the surrounding ground elevation (not the channel bottom). Excavated edges will be in an uneven (not square) pattern as to appear natural. Trees on existing site will be removed. 4. The landowner(s) will record Warranty Easement Deed 001-2007-7652-1 (Attachment A) at the Adams County Courthouse. A signed copy of this agreement will be attached to the recorded deed. Proof of recording will be provided to the Hastings NRCS office prior to designation of MIW on wetland determination form NRCS-026E. 5. The landowner agrees to maintain the mitigation wetland (Easement Site + W) as long as the converted wetland (MIW) is not restored to a wetland including the functions and values of the wetland restored. 6. Present land use of the converted wetland (MIW) is non-cropland but may be cropped in the future. 7. Current use of the mitigation wetland (Easement Site + W) is non-cropland. The mitigation wetland (W) will not be cropped but maybe grazed when the adjacent cropland is grazed (as part of normal crop gleaning by livestock). Small trees less than 5 years old and shoots may be removed. 8. A filter strip (30 feet wide) consisting of perennial grasses, legumes, and forbs must be maintained around the perimeter of the mitigation wetland (Easement Site.+ W) to reduce sediment and nutrients from impacting the wetland. ' 9. The mitigation wetland (Easement Site + W) is expected to have equal wetland functions and values of the converted wetland (MIW). The mitigation wetland (Easement Site + W) was created prior to (or simultaneously) conversion of the original wetland site. If the mitigation wetland (Easement Site + W) d>I d ri.f 5, 1 `f; 1 ~, 200'75356 does not continue to maintain wetland hydrology, the converted wetland (MIW) will be;iestored or other actions"must be taken to replace the loss of 0.6 acres of the converted wetland (MIW): 10. The landowner will allow NRCS to conduct annual follow-up inspections of the mitigation wetland (Easement Site + W). Tlnis is to ensure that wetland vegetation, hydrology, and size is fully established and maintained. 11. The site must contain a predominance of wetland vegetation and exhibit hydrologic indicators at the time of the final inspection three years fronn the date this agreement is signed by all parties. 12. The landowner agrees to insure that tlne wetland mitigation area (Easement Site + W) maintains wetland characteristics and will complete whatever measures are needed to maintain the wetland. 13. The landowner will conduct NO additional tiling, ditching, filling or other modifications that would impact the mitigation wetland (Easement Site + W) or other wetlands without prior approval of NRCS. 14. The landowner will obtain any and all required permits, easements, letter or authorization from the US Army Corp of Engineers (COE) and others as needed. The landowner will provide a copy of this agreement to the COE for permit processing. Copies of the COE permit (or information that substantiates that no permit is necessary) and any other permits will be provided to NRCS by the landowner. Failure to comply with any of the terms of this agreement will violate the recorded easement and will result in the loss of the Mitigation Wetland exemption (MIW) and tlne area converted will be designated as Converted Wetland plus year. The CW+yr designation results in possible refunding of past USDA benefits and loss of future USDA program benefits. /D Landowner Date ec> ~ D "Natural Resource Con ervation Service Date Ot. a, >:, I,s ~;, t k'~, ;~ S s; .;,, ;. ~. r ::}. ~: ~~ 4 F f~2 ji k' u, ,_. ~.;. F;% ii {~. k Legend Certified Wetland Determination Boundary w,.a.~„~~..;i ~' ~ Wetlands .,,.,,.~....,.,,.,,_ Wetlands -~~-_~ - Ditch ....,...~„~ ~.,,,,, NI °-° 'r-fir- NI\Ditch 0 140 280 560 840 1,120 1,400 1,680 Feet Ex~1nk~~t B N W - Wetland MIW - Mitigated Wetland NW -Non Wetland Easer.~eni +'J',' -Mitigated wetland replacement site Seo N';!.'~ CPA-O25E for definitions and additional info. g of 8 1 ti .,. Cc.:rtified Wetianc~ ®etermination 200'75356 Field Office: Hastings FO Agency: USDA-NRCS Certified By: Shanda KS Weber Certified Date: Nov 30, 2007 Legal Desc: Part of NE Sec 30, T 7 N, R 11 W Tract: 7652