HomeMy WebLinkAboutAgenda - 06-16-2009 - 4i. ORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 16, 2009
1
Action Agenda
Item No. ¢ - j
SUBJECT: Resolution of Approval -Underwood Conservation Easement Donation
DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No
Conservation
ATTACHMENTS
Resolution of Approval
Draft Conservation Easement
Vicinity Map
Site Map
INFORMATION CONTACT:
David Stancil, 245-2590
Rich Shaw, 245-2591
PURPOSE: To consider a resolution to approve the acceptance by Orange County of a
conservation easement donation to protect a portion of the Underwood property.
BACKGROUND: The Lands Legacy Program adopted in April 2000 works with landowners
and other conservation partners to protect important natural and cultural resource lands in
Orange County. Through this program the County uses a variety of voluntary means to
protect lands including fee-simple acquisition, land donations, and purchase or donation of
conservation easements. Since its inception Lands Legacy has protected over 1,500 acres
of prime farmland and riparian buffers with permanent conservation easements and another
977 acres of important natural and cultural resource lands by other means.
Barbara ("Betsy") Underwood owns a 22-acre property located on Walnut Grove Church
Road (Little River Township). The property includes four historic houses Ms. Underwood
restored for use over the past several years as rental homes. Ms. Underwood is currently
working with the Planning Department on a minor subdivision that will result in each of the
existing dwellings on its own lot (with individual wells and septic systems), thereby making the
property consistent with current zoning regulations.
Ms. Underwood intends to protect Lot 5 (7.58 acres) with a permanent conservation
easement. The property includes a forested stream corridor (Covey Creek) and 19t" Century
log house. The property is located in the Little River Protected Watershed, which the Lands
Legacy Action Plan identifies as a priority watershed for conserving riparian buffers to help
protect drinking water quality and aquatic habitat. The property includes 600 linear feet of
Covey Creek which drains into the South Fork Little River (200 feet downstream).
The property is also located just upstream from South Fork Little River Marsh - an Orange
County Natural Heritage site recognized as a naturally impounded wetland marsh and
bottomland habitat of County significance. Conserving land along Covey Creek helps protect
2
Little River water quality and aquatic habitat. South Fork Little River is home to rare and
endangered species of freshwater mussels.
ERCD Staff and the County Attorney are working with Ms. Underwood to prepare an
agreement meeting her needs and the County's interests. The conservation easement would
prohibit future subdivision and ensure the property remains in its natural, forested condition.
All future development rights will be extinguished outside of a small "Residential. Envelope" to
accommodate the existing residence (log cabin) and new driveway. ERCD would monitor the
property on an annual basis. A copy of the draft easement is attached.
FINANCIAL IMPACT: Ms. Underwood intends to donate the conservation easement to
Orange County. The only direct cost to the County would be an estimated $2,000 to help
with transaction costs including the easement survey, title search and closing fees. Those
funds would come from existing funds budgeted from the $3.0 million in alternative financing
(Lands Legacy Conservation Easement Fund) approved by the Board of Commissioners in
FY 2002-03 and previously appropriated. The Budget Office will present a Capital Project
Ordinance for this project in a budget amendment sometime this fall.
The conservation easement is not expected to reduce County property taxes for the subject
property (Lot 5) because there is already an existing residence which could be enlarged or
replaced in the same location. Other site limitations would preclude the placement of a
second house on the property.
RECOMMENDATION: The Manager recommends the Board adopt the resolution approving
the acceptance by Orange County of the conservation easement and authorize the Chair and
the Clerk to sign the conservation easement agreement, subject to final review by staff and
County Attorney, with a closing and recordation of the document expected to occur on or
about August 31, 2009.
ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION
Approval of Conservation Easement between
Orange County and Barbara Underwood
WHEREAS, Orange County has adopted goals that promote the preservation of natural
areas, wildlife habitat, farmland and open space in the County; and
WHEREAS, Orange County established the Lands Legacy Program for the purpose of
protecting the most significant natural and cultural resources through partnerships with
landowners and other conservation entities; and
WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation
easements on lands that include natural areas, wildlife habitat and riparian buffers within
water supply watersheds; and
WHEREAS, Barbara Underwood owns a 22-acre property located within the Little River
Protected Watershed; and
WHEREAS, Barbara Underwood wishes to protect a 7.58-acre portion of her property that
includes a section of Covey Creek, which flows into the nearby South Fork Little River and a
significant Natural Heritage site known as the South Fork Little River Marsh; and
WHEREAS, Barbara Underwood wishes to donate a permanent conservation easement to
Orange County, which will protect the natural resources associated with her property;
NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners
does hereby 1) accept on behalf of Orange County the conservation easement in the
property owned by Barbara Underwood that is described in the conservation easement
agreement; 2) approve the execution of this conservation easement agreement with Barbara
Underwood, in accordance with the terms of the attached easement agreement, subject to
final review by staff and the County Attorney; and 3) authorize the Chair and the Clerk to sign
the easement agreement on behalf of the Board, with a closing to occur on or about August
31, 2009.
BE IT FURTHER RESOLVED that the Board thanks Ms. Underwood for her civic-minded
interest in pursuing this conservation easement through the Lands Legacy Program.
This the 16th day of June, 2009.
Valerie Foushee, Chair
Orange County Board of Commissioners
Donna Baker, Clerk to the Board
4
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
This instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hargrave & Peek, P.C.,
P.O. Drawer 1529, Hillsborough, NC 27278
NORTH CAROLINA
COUNTY OF ORANGE
WARRANTY DEED OF
CONSERVATION EASEMENT
This Deed of Conservation Easement (hereinafter "Conservation Easement") is made on this
day of , 2009 by BARBARA SWINT UNDERWOOD, 612 Yorktown
Road, Chapel Hill, NC 27516 (hereinafter "Grantor") and ORANGE COUNTY, NORTH
CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter
"Grantee" or "the 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
pronouns as required by context.
RECITALS
A. The Grantor is the sole owner in fee simple of certain real property located in
Cedar Grove Township, Orange County, North Carolina, and described on Exhibit A hereto,
which is incorporated herein by reference. The tract of land comprises approximately 7.58 acres,
and is hereinafter referred to as "the Easement Area." The Easement Area includes buildings
and other improvements, which are shown on Exhibit C, attached hereto and incorporated herein.
B. The Grantee is a body politic and corporate, a political subdivision of the State of
North Carolina, with powers prescribed in Chapter 153A of the North Carolina General Statutes.
C. To the extent practicable, the Grantor and Grantee wish to maintain the Easement
Area as a combination of woodland and open space suitable as habitat for the native flora and
fauna of the North Carolina Piedmont, and to protect the water quality of headwater streams
running off from this land and into the South Fork Little River. The grant of this Conservation
Page 1 of 16
5
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
Easement further said wish, and will serve the following "Conservation Purposes," as such term
is defined in Section 170 (h)(4)(A) of the Code:
The Easement Area contains a natural azea that has not been subject to significant
development, which provides a "...relatively natural habitat offish, wildlife, or plants, or similaz
ecosystem," as that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in
regulations promulgated thereunder.
The Easement Area is located immediately upstream of the South Fork Little River
Marsh, which is recognized by Orange County as a significant natural heritage site and described
on Pages 132-134 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County,
North Carolina (December 2004), by Dawson Sather et al. in coordination with the North
Cazolina Natural Heritage Program. It is a primary purpose of this Conservation Easement to
protect the undeveloped nature of the Easement Area and, in doing so, to support and help
protect the natural azea and wildlife habitat associated with this azea.
The Easement Area is also within the Little River Protected Watershed, so classified in
the Orange County Comprehensive Plan. Another primary purpose of this Easement is to protect
the lazgely undeveloped nature of the Grantor's Property and, in doing so, helping to protect the
high quality of that drinking water supply serving the people of Durham County.
The Easement Area also contributes to the open space and rural chazacter of this section
of Cedar Grove Township. It is a further purpose of this Conservation Easement to help to
protect the rural character and open space of Cedar Grove Township.
The natural habitat of the Easement Area, and its contribution to the protection of the
public water supply watershed, as well as the open space and rural chazacter of Cedaz Grove
Township aze collectively referred to as the "conservation values" of the Easement Area
The Grantor and Grantee agree that the current uses of and improvements to the
Easement Area are consistent with the conservation purposes of this Conservation Easement.
The conservation purposes of this easement, notwithstanding anything to the contrary contained
herein, aze also recognized by, and this Conservation Easement will also serve, the following
cleazly delineated governmental conservation policies:
(1) the Orange County Boazd of Commissioners' goal (adopted June 21, 1999) to
identify and coordinate the preservation of the County's most significant natural areas; and
(2) the Land Use Element of the Orange County Comprehensive Plan
(adopted November 18, 2008) with its goal of "Land uses that aze appropriate to on-site
Page 2 of 16
6
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
environmental conditions and features, and that protect natural resources, cultural
resources, and community chazacter."
(3) the protection of similaz Orange County properties designed to protect
conservation and open space values through conservation easements granted to the Grantee and
others in the immediate vicinity of the Easement Area; and
(4) NCGS § 139-2 et seq., which provides that "it is hereby declared ...that the
farm, forest and grazing lands of the State of North Cazolina aze among the basic assets of the
State and the preservation of these lands is necessary to protect and promote the health, safety
and general welfare of its people... it is hereby declazed to be the policy of the legislature to
provide for the conservation of the soil and resources of this State"; and
(6) Article 17 of the North Cazolina General Statutes NCGS 113A-240-241,
entitled Conservation, Farmland and Open Space Protection and Coordination, otherwise known
as the "Million Acre Initiative," which states that the State of North Cazolina shall encourage,
facilitate, plan, coordinate, and support appropriate federal, State, local, and private land
protection efforts so that an additional one million acres of farmland, open space and
conservation lands in the State are permanently protected by December 31, 2009; and
(7) the North Cazolina Conservation Tax Credit Program, authorized by NCGS §
105-130.34 and 105-151.12 et seq., which provides for state income tax credits for donations of
land that are useful for fish and wildlife conservation and other similaz land conservation
purposes; and
(8) the Clean Water Management Trust Fund, authorized by NCGS § 113A-251 et
seq., which fmances projects to acquire land and interests in land, including conservation
easements for the purposes of providing environmental protection for surface waters and urban
drinking water supplies; and
(9) the Soil and Water Conservation Districts Act, authorized by NCGS § 139-1,
et seq., which provides for the preservation of farm, forest and grazing lands; and
(10) the special use assessment of farm and forestland as set forth in NCGS §
105-277.2 et seq., which allows for lower property tax rates for land enrolled in active
agricultural uses.
D. The chazacteristics and conservation values of the Easement Area, its current use
and state of improvement, aze described in a report entitled "Baseline Documentation Report for
the Covey Creek Conservation Area," dated (hereafter "the Baseline Report")
prepared by Orange County ERCD for the Grantor, of which a summary is attached as Exhibit B
Page 3 of 16
7
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
to this Conservation Easement. The Grantor worked with the Grantee to ensure that the report is
a complete and accurate description of the Easement Area as of the date of this Conservation
Easement. It will be used by the Grantor and Grantee to assure that any future changes in the use
of the Easement Area will be consistent with the terms of this Conservation Easement.
However, the Baseline Report is not intended to preclude the use of other evidence to establish
the present condition of the Easement Area if there is a question about its use.
E. The Grantor and Grantee have the common purpose of conserving the
above-described conservation values of the Easement Area in perpetuity, and the State of North
Carolina has authorized the creation of Conservation Easements pursuant to the terms of the
North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. §
121-34 et seq., and G.S. § 153A-176 and G.S. § 160A-266 - 279, which provide for the
enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land
or water areas predominantly in their natural, scenic or open condition or in agricultural,
horticultural, farming, or forest uses," and which provide for tax assessment of lands subject to
such agreements "on the basis of the true value of the land and improvements less any reduction
in value caused by the agreement"; and the Grantor and Grantee wish to avail themselves of the
provisions of those laws.
NOW, THEREFORE, the Grantor, as an absolute gift of no monetary consideration, but
in consideration of the facts recited above and of the mutual covenants, terms, conditions and
restrictions contained herein, hereby gives, grants and conveys unto the Grantee, its successors
and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a
Conservation Easement over the Easement Area of the nature and character as follows:
With the exception of those rights retained herein, Grantor conveys to Grantee all
development rights that are now or hereafter allocated to, implied, reserved or inherent in the
Easement Area, and the parties agree that such rights are terminated and extinguished, and may
not be used on or transmitted to any portion of the Easement Area, as it now or hereafter may be
bounded or described, or to any other property.
1. PURPOSE. As outlined in the Recitals above, the purposes of this Conservation
Easement are to ensure that the Easement Area will be retained forever, predominantly in its
natural, forested, and open space condition; to protect native plants and animals, or plant
communities on the Easement Area, while allowing certain limited uses on the Easement Area
that are compatible with and not destructive of the conservation values of the Easement Area;
and to prevent any use of the Easement Area that will significantly impair or interfere with
conservation values or interests of the Easement Area.
Grantor will not perform, nor knowingly allow others to perform, any act on or affecting
the Easement Area that is inconsistent with the purposes of this Conservation Easement.
Page 4 of 16
8
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
However, unless otherwise specified below, nothing in this Conservation Easement shall require
the Grantor to take any action to restore the condition of the Easement Area after any act of
nature or other event over which Grantor had no control. Grantor understands that nothing in
this Conservation Easement relieves her of any obligation or restriction on the use of the
Easement Area imposed by law.
2. PROPERTY USES. 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 of the Easement Area. Without limiting the
generality of the foregoing, the following is a listing of activities and uses which aze expressly
prohibited or which aze expressly allowed. Grantor and Grantee have determined that the
allowed activities do not impair the conservation values of the Easement Area. Additional
retained rights of Grantor are set forth in Paragraph 3 below.
2.1 Subdivision and Conveyance. The Easement Area consists of one tax
pazcel (herein "parcel"), which is described in Exhibit A. The Easement Area may not be further
divided, subdivided or partitioned to establish additional pazcels. Any future conveyance of the
fee simple interest in the Easement Area shall be subject to this Conservation Easement. Grantor
agrees for herself, her successors and assigns, that in the event she transfers the Easement Area,
such transfer is subject to the Grantee's right of ingress, egress, and regress over and across the
Easement Area for the purposes set forth herein.
2.2 Construction. One residential dwelling exists within a 1.5-acre
"Residential Envelope" located on the Easement Area as depicted on Exhibit B. Existing
structures and improvements, may be repaired, enlazged and replaced within the "Residential
Envelope" without further permission from Grantee. All appurtenant structures (gazage, sheds)
for the existing residential dwelling shall be contained within the "Residential Envelope." New
structures and improvements may be built without any further permission of Grantee provided
they are located in the "Residential Envelope." All construction or reconstruction is subject to
Orange County zoning regulations and must be consistent with permits required by and issued by
Orange County under its laws and ordinances for such construction activities. No other
permanent structures may be placed or constructed on the Easement Area outside of the
"Residential Envelope," except for fences used to identify property boundaries. Furthermore,
there shall be no constructing or placing of any airplane landing strip, billboard or other
advertising display, utility pole, utility tower, conduit or line on or above the. Easement Area
other than those necessary to service the Easement Area's improvements and remaining
compatible with the conservation values or interests of the Easement Area. Outdoor lighting
shall be placed and shielded so as to minimize the impact on surrounding areas.
Page 5 of 16
9
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
2.3 Existin~provements. Grantor shall have the right to maintain, remodel,
and repair existing fences, utilities, and other improvements, and in the event of their destruction,
to reconstruct any such existing improvements with another of similar size, function, capacity,
location and material so long as authorized by Orange County zoning regulations and consistent
with permits required by and issued by Orange County under its laws and ordinances for such
reconstruction.
2.4 Agricultural, Grazing and Horticultural Use. 'There shall be no agricultural,
grazing, or horticultural uses in any portion of the Easement Area except to allow the following uses
within, and only within, the "Residential Envelope" identified on Exhibit C to this Conservation
Easement: a) the raising of poultry, and b) horticultural uses.
2.5 Timber Harvesting and Forest Man ement. Commercial timbering of
trees within the Easement Area is prohibited. Everywhere on the Property except for the azea
identified and mazked as "Residential Envelop" on Exhibit C of this Conservation Easement,
trees may be removed, cut and otherwise managed to control insects and disease, to prevent
personal injury and property damage, to remove non-native species, or to salvage wind-thrown
timber, including construction of permitted improvements and fences on the Property. Such
management activities must be pursuant to a written Forest Management Plan prepared by a
North Cazolina registered forester, the selection of whom is mutually agreed upon by Grantor
and Grantee and which management activities must be agreed to in advance by Grantee and
Grantor. Within the area identified and marked as "Residential Envelope" on Exhibit C of this
Conservation Easement, trees may be harvested and removed without the advance written
permission of the Grantee.
2.6 Recreational Use. Consistent with the purpose of and the limitations
contained in this Conservation Easement, Grantor shall have the right to engage in and permit
others, whether or-not for consideration, to engage in recreational uses of the Easement Area,
including, but not limited to, hiking, picnicking, and other recreational uses that require no
buildings, facilities, surface alteration or other development of the land. Hunting is prohibited
except as authorized in Section 2.13 of this Conservation Easement. Grantor reserves the right to
promulgate and enforce reasonable rules and regulations for all activities incident to recreational
use of the Easement Area, including but not limited to the right to prohibit any recreational use
that would permit destruction of other significant conservation values of the Easement Area.
2.7 Excavation. 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 to allow a) the
construction of the improvements permitted herein, b) the maintenance of hiking trails permitted
herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal
ecosystems native to the locality.
Page6of16
10
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
2.8 Destruction of Plants. Grantor shall have the right to cut and remove
diseased trees, shrubs, or other plants, to cut and remove invasive (usually non-native) trees,
shrubs and other plants, and to cut firebreaks. Grantor shall also have the right to cut and remove
trees, shrubs, or other plants to accommodate the activities expressly allowed under this
Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting
of native trees, shrubs or other plants. Furthermore, except to accommodate the activities
expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction of
non-native animals, or disturbance or change in the natural habitat in any manner.
2.9 Water Quality and Drainage Patterns. There shall be no pollution of
surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water
bodies, nor shall activities be conducted on the Easement Area that would be detrimental to
water purity or, except as specified herein, that could alter the natural water level or flow in or
over the Easement Area. There shall be no alteration, depletion or extraction of surface water,
natural watercourses, lakes, ponds, mazshes, subsurface water or any other water bodies on the
Easement Area. Diking, draining, filling or removal of wetlands is prohibited.
2.10 Si ng_age. No signs or billboards or other advertising displays are allowed
on the Easement Area except as otherwise permitted herein and as follows: signs authorized by
Orange County zoning regulations whose placement, number and design do not diminish the
scenic character of the Easement Area may be displayed to identify the conservation values of
the Easement Area, to identify the Conservation Easement, to give directions, to advertise or
regulate permitted uses on the Easement Area and prescribe rules and regulations for educational
use of the Easement Area, to advertise the Easement Area for sale or rent, to post the Easement
Area against trespassers, and to identify the Grantor as fee simple owner of the Easement Area,
and to identify the Grantee as holder of the Conservation Easement.
2.11 No Biocides. -There shall be no use of pesticides or biocides, including but
not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by
Grantee to control invasive species detrimental to the conservation values of the Easement Area,
and except as needed in the area identified and marked "Residential Envelope" on Exhibit C of
this Conservation Easement without the permission of the Grantee.
2.12 No Dumping. There shall be no storage or dumping of trash, garbage,
abandoned vehicles, appliances, or machinery, or other unsightly or offensive material,
hazazdous substance, or toxic waste on the Easement Area. There shall be no changing of the
topography through the placing of soil or other substance or material such as land fill or dredging
spoils, nor shall activities be conducted on the Easement Area that could cause erosion or
siltation on the Easement Area.
2.13 Predator Control. Grantor shall have the right to control, destroy, or trap
predatory and problem animals that pose a material threat to humans by means and methods with
Page 7 of 16
11
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
prior written approval of Grantee. The method employed shall be selective and specific to
individuals, rather than broadcast, nonselective techniques.
2.14 Commercial Development. Any commercial or industrial use of or
activity within the Easement Area is prohibited, except as follows. Grantor retains the right to
use the portion of the Property within the area identified and marked as "Residential Envelope"
on Exhibit C of this Conservation Easement for otherwise lawful commercial enterprises, such
as, but not limited to, tutoring or other kinds of educational programs, so long as such activities
are consistent with Orange County zoning regulations and permits required by and issued by
Orange County under its laws and ordinances as they exist now and as they may be amended
from time to time, and are conducted in buildings otherwise permitted under this Conservation
Easement in a manner that is consistent with the conservation purposes of this Conservation
Easement. This restriction on use shall not be construed to prohibit use of the Easement Area for
recreational, educational and scientific purposes, as long as such activities are undertaken on a
noncommercial basis.
2.15 Development Rights. Grantor conveys to Grantee all development rights
that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and
the parties agree that such rights are terminated and extinguished, and may not be used on or
transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or
described, or to any other property.
3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the
following additional rights:
(a) Existing Uses. The right to undertake or continue any activity or use of the
Easement Area not prohibited by this Conservation Easement. Prior to making any change in
use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable
opportunity to determine whether such change would violate the terms of this Conservation
Easement. This determination by Grantee shall be made in writing.
(b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the
Easement Area is subject to the terms of this Conservation Easement.
4. GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the
purposes of this Conservation Easement, the following rights are granted to Grantee and the
following responsibilities are reserved to Grantee by this Conservation Easement:
(a) Right to Protect. The right to preserve and protect the conservation values of the
Easement Area and enforce the terms of this Conservation Easement.
(b) Right of Entrv. Grantee, its employees, representatives, and agents and its
successors and assigns, have the right, after reasonable advance notice to Grantor
Page8of16
12
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
or with Grantor's prior verbal consent, to enter the Easement Area for the
purposes of: (a) inspecting the Easement Area to determine whether the Grantor,
her representatives, assigns, heirs and successors are complying with the
covenants and purposes of this Conservation Easement; and (b) monitoring and
research as described below.
(c) Monitoring and Research. The right, but not the obligation, to monitor the native
plant and wildlife populations, plant communities and natural habitats on the
Easement Area. Grantee agrees that all monitoring activity, inventory and
assessment work or other natural resource research conducted by Grantee or at
Grantee's direction or with Grantee's permission shall be reported to Grantor.
Grantor agrees that all monitoring activity, inventory and assessment work or
other natural resource research conducted by Grantor or at Grantor's direction or
with Grantor's permission shall be reported to Grantee.
(d) Management of Exotics and Invasive S en cies. The right, but not the obligation, to
control, manage or destroy exotic non-native species or invasive species of plants
and animals that threaten the conservation values of the Easement Area. Grantee
will consult with Grantor prior to implementing any such control activities.
5. 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 Grantor, or in any way to affect any existing obligation of the Grantor
as owner of the Easement Area. Among other things, this means:
(a) Taxes -The Grantor shall continue to be solely responsible for payment of all
taxes and assessments levied against the Easement Area. If Grantee is ever required to pay any
taxes or assessments on its interest in the Easement Area, the Grantor will reimburse Grantee for
the same.
(b) Upkeep and Maintenance -The Grantor retains all responsibilities and shall bear
all costs and liability of any kind related to the ownership, operation, and upkeep and
maintenance of the Easement Area, including the maintenance of adequate comprehensive
general liability insurance coverage. Grantee shall have no obligation for the upkeep or
maintenance of the Easement Area. Grantor will remain responsible for upkeep, maintenance,
and repairs to any impoundments located on the Easement Area.
(c) Liability and Indemnification -Grantor agrees to indemnify and hold Grantee
harmless from any and all costs, claims or liability, including but not limited to reasonable
attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the
Easement Area, or any claim thereof, unless due to the negligence of Grantee or agents of
Grantee, in which case liability shall be as provided by law. In addition, Grantor agrees to
maintain liability insurance covering the Easement Area with the limits as follows: (i) $300,000
Page 9 of 16
13
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per
occurrence for property damage; and warrant that Grantee is and will remain a named insured on
Easement Area insurance policies covering the Easement Area. Grantor shall provide Grantee
with a certificate of insurance coverage on the effective date of this Conservation Easement and
within 10 days of each insurance renewal date.
6. ACCESS. No right of access by the general public to any portion of the
Easement Area is conveyed by this Conservation Easement. However, the public has the right to
view the Easement Area from adjacent publicly accessible areas such as public roads and
waterways.
7. ENFORCEMENT. The Grantee shall have the right to prevent and correct
violations of the terms of this Conservation Easement.
(a) With reasonable advance notice provided to the Grantor or with the Grantor's
prior verbal consent, the Grantee shall have the right to enter the Easement Area for the purpose
of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall
have the right to prevent violations and remedy violations of the terms of this Conservation
Easement through judicial action, which shall include, without limitation, the right to bring
proceedings in law or in equity against any party or parties attempting to violate the terms of this
Conservation Easement. Except when an ongoing or imminent violation could irreversibly
diminish or impair the conservation values of the Easement Area, the Grantee shall give the
Grantor written notice of the violation and thirty (30) days to cure the violation, before
commencing any legal proceedings. The Grantee may obtain an injunction to stop a violation or
a threatened violation, temporarily or permanently. The parties agree that a court may issue an
injunction or order requiring the Grantor to restore the Easement Area to its condition prior to the
violation, as restoration of the property may be the only appropriate remedy. In any case where a
court fmds that a violation has occurred, the Grantor shall reimburse the Grantee for all its
expenses incurred in stopping and correcting the violation, including but not limited to
reasonable attorneys' fees. In any case where a court finds no such violation has occurred, each
party shall bear its own costs. In any case where the court finds that there was a complete
absence of a justiciable issue of either law or fact raised by the losing party, the court may award
a reasonable attorney's fee to the prevailing parry as provided by law. The failure of the Grantee
to discover a violation or to take immediate legal action shall not bar it from doing so at a later
time for that violation or any subsequent violations.
(b) Grantee shall not bring any action against Grantor for any injury or change to the
Easement Area caused by third parties, or resulting from causes beyond the Grantor's control,
including, without limitation, fire, flood, storm and naturally caused earth movement, or from
any prudent action taken in good faith by the Grantor under emergency conditions to prevent,
abate, or mitigate significant injury to life, damage to the Easement Area or harm to the
Easement Area resulting from such action.
Page 10 of 16
14
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer,
assign, convey, or otherwise to co-hold the Conservation Easement created by this Deed to any
public agency or private nonprofit organization that, at the time of transfer, is a qualified
organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under
NCGS 121-34 et seq., provided the agency or organization expressly agrees to assume the
responsibility imposed on Grantee by this Deed. If the Grantee ever ceases to exist or no longer
qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court
with jurisdiction shall transfer this Conservation Easement to another qualified organization
having similaz purposes that agrees to assume the responsibility imposed by this Conservation
Easement.
9. TRANSFER OF EASEMENT AREA. The Grantor agrees to incorporate by
reference the terms of this Conservation Easement in any deed or other legal instrument by
which it transfers or divests itself of any interest, including leasehold interest, in all or a portion
of the Easement Area. The Grantor shall notify the Grantee in writing at least thirty (30) days
before conveying the Easement Area, or any part thereof or interest therein. Failure of Grantor
to do so shall not impair the validity of this Conservation Easement or limit its enforceability in
any way.
10. AMENDMENT OF EASEMENT. This Conservation Easement may be
amended only with the written consent of Grantor and Grantee. Any such amendment shall be
consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of
the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any
such amendment shall also be consistent with the Uniform Conservation and Historic
Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., or any regulations promulgated
pursuant to that law. Grantor and Grantee have no right or power to agree to any amendment
that would affect the enforceability of this Conservation Easement.
11. PROCEDURE IN THE EVENT OF TERMINATION OF
CONSERVATION EASEMENT. If it determines that conditions on or surrounding the
Easement Area change so much that it becomes impossible to fulfill the conservation purposes of
this Conservation Easement, a court with jurisdiction may, at the joint request of both the
Grantor and the Grantee, terminate or modify the Conservation Easement created by this Deed in
accordance with applicable State law. If the Conservation Easement is terminated and the
Easement Area is sold, then as required by Section 1.1 70A-14(g)(6) of the IRS regulations, the
Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus
any amount attributed to new improvements made after the date of the conveyance, which
amount shall be reserved to Grantor), equal to the ratio of the appraised value of this
Conservation Easement to the unrestricted fair mazket value of the Easement Area, as these
values are determined on the date of this Conservation Easement, subject to any applicable law
which expressly provides for a different disposition of the proceeds.
All termination related expenses, including reasonable attorney fees, incurred by the
Page 11 of 16
15
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
12. PROCEDURE IN THE EVENT OF CONDEMNATION OR EMINENT
DOMAIN. Grantor and Grantee recognize that the partial sale of this Conservation Easement
gives rise to a property right, immediately vested in the Grantee, with a fair market value equal
to the proportionate value that the Conservation Easement bears to the value of the Easement
Area prior to the restrictions imposed by the Conservation Easement. Accordingly, if any
condemnation or eminent domain action shall be taken, on all or part of the Easement Area, by
any authorized authority, said authority shall be liable to the Grantee for the value of the property
right vested in the Grantee at the time of the signing of this Conservation Easement.
If condemnation or a taking by eminent domain of a part of the Easement Area or the
entire Easement Area by a public authority renders it impossible to fulfill any of the conservation
purposes of this Conservation Easement on all or part of the Easement Area, this Conservation
Easement may be terminated or modified accordingly through condemnation proceedings.
Grantor and Grantee agree that this Conservation Easement is a currently vested real property
right with a value equal to the proportionate value of the Conservation Easement to the
unencumbered value of the fee, as of the date of this Conservation Easement. If the
Conservation Easement is terminated or modified and any or all of the Easement Area is sold or
taken for public use, then, as required by Section 1.170A-14(g)(6) of the IRS regulations, the
Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus
any amount attributed to new improvements made after the date of the conveyance, which
amount shall be reserved to Grantor), equal to the ratio of the appraised value of this
Conservation Easement to the unrestricted fair market value of the Easement Area, as these
values are determined on the date of this Conservation Easement, subject to any applicable law
which expressly provides for a different disposition of the proceeds.
If, however, after the condemnation or eminent domain proceedings, a court of
jurisdiction does not include in the just compensation awarded as a result of the taking, the
amount of the Conservation Easement value, then the Grantor shall not be responsible to share
any proceeds awarded.
All condemnation related expenses, including reasonable attorney fees, incurred by the
Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
13. INTERPRETATION. This Conservation Easement shall be interpreted under
the laws of North Carolina, resolving any ambiguities and questions of the validity of specific
provisions as to give maximum effect to its conservation purposes.
14. TITLE. The Grantor covenants and represents that she is the sole owner and
seized of Easement Area in fee simple and have good right to grant and convey this Conservation
Page 12 of 16
16
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
Easement; that the Easement Area is free and cleaz of any mortgages not subordinated to this
Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits
derived from and arising out of this Conservation Easement, subject to any easements or
encumbrances of record.
15. NOTICES. Any notices required by this Conservation Easement shall be in
writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee,
respectively, at the following addresses, unless a party has been notified by the other of a change
of address.
To the Grantor:
Bazbaza Swint Underwood
612 Yorktown Road
Chapel Hill, NC 27516
To the Grantee:
Orange County Environment and
Resource Conservation Department
Orange County, North Cazolina
P.O. Box 8181
Hillsborough, NC 27278
16. ENVIRONMENTAL CONDITION. The Grantor warrants that it has no actual
knowledge of a release or threatened release of hazazdous substances or wastes on the Easemert
Area.
17. SEVERABILITY. If any provision of this Conservation Easement is found to be
invalid, the remaining provisions shall not be altered thereby.
18. PARTIES. Every provision of this Conservation Easement that applies to the
Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns,
and all other successors as their interest may appeaz. This Conservation Easement shall not be
construed to benefit or to create any rights in any third parties, including but not limited to the
general public.
19. RE-RECORDING. In order to ensure the perpetual enforceability of the
Conservation Easement, the Grantee is authorized to re-record this instrument or any other
appropriate notice or instrument.
20. MERGER. The parties agree that the terms of this Conservation Easement shall
survive any merger of the fee and easement interest in the Easement Area.
21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation
Easement should be construed as impairing the ability of Grantor to use the Easement Area as
collateral for subsequent borrowing, provided that any mortgage or lien azising from such a
borrowing is made subordinate to this Conservation Easement.
Page 13 of 16
17
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
22. EXHIBITS AND DOCUMENTATION.
(a) Baseline Documentation Report. The parties acknowledge that the Baseline
Documentation Report, a copy of which is on file at the offices of the Grantee, accurately
establishes the uses, structures, conservation values and condition of the protected Easement
Area as of the date hereof. A summary is attached as Exhibit B.
(b) Future Construction. Exhibit C is a GIS map and sketch showing the
configuration of the property owned by the Grantor.
23. 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. If any
provision is found to be invalid, the remainder of the provisions of this 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.
24. ACCEPTANCE AND EFFECTIVE DATE. As attested by the Clerk of the
Grantee and the signature of its authorized representative affixed hereto, the Grantee hereby
accepts without reservation the rights and responsibilities conveyed by this Conservation
Easement. This Conservation Easement is to be effective the date recorded in the Orange
County Registry of Deeds.
TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee
its successors and assigns, forever.
[The remainder of this page is intentionally left blank. Signature page follows.]
Page 14 of 16
18
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTOR:
Accepted:
By:
ATTEST:
By:
Donna S. Baker, Clerk to the
Board of Commissioners
Barbara Swint Underwood
GRANTEE:
ORANGE COUNTY, NORTH CAROLINA
Valerie Foushee, Chair
Orange County Board of Commissioners
Page 15 of 16
19
Covey Creek Conservation Easement (Underwood) Draft 6/3/09 BOCC
Acknowledgments
NORTH CAROLINA
COUNTY OF ORANGE
I, , a Notary Public in and for said County and State do
hereby certify that personally appeared before me this day and duly
acknowledged the execution of the foregone Conservation Easement.
Witness my hand and official stamp or seal this the day of , 2009.
Notary Public
My commission expires:
NORTH CAROLINA
COUNTY OF ORANGE
(Notary's printed or typed name)
I~ , a Notary Public of the County and State aforesaid,
certify that Donna S. Baker personally came before me this day and acknowledged that she is
Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority
duly given and as the act of said County, the foregoing instrument was signed in its name by the
Chair of said Board of Commissioners and attested by her as Clerk to said Board of
Commissioners.
Witness my hand and official stamp or seal this the day of , 2009.
Notary Public
My commission expires:
(Notary's printed or typed name)
Page 16 of 16
_~ - ~~ G
•, ~ ~ --~ ~
-L-~-+ 1 r ._ ~ _ r r -
- = ~ ~ _l
- , - _- L t' a, ~~ 1 '-•-
t- - - --
-~ ~~ ~ ~~~ f ~ ~ ;; --h
I II ~ - `
r' -. L f -- r __ ~ I
1' I I i ~_
y~ It
-i - I 'I 1,,,_ a
~ '11 L ~ 1
'S . _ _ 1 -_.~i '-
I ~ _ _ _ _
I ~ ~_ oo, ! _.,.r-= , a
_ _~1 ~~ ~~ ~~_: ~_ le f2i er
_ _ ~- ~ - - _ = ~ 1~, ~= ~ - -~-; ~~
_~.-, ~-
1 t-
I ll) i~/i M1 ~ i ~ I IM ~ i^h.1 I ~ I u--- [ _ {_''`-J{Jj
- may, 1 ~ '~, y~ ~-Y1 - I _ _ _ ~ ~.~j
" IT I I `mac I rP •
- { ~ ~ y
. I I- _ , _ _ y- _ I
~-~ ~ ~ ~ I ~ ` ~' ~~ tJ ~ ~J I
• n -
,•` ~ _
---~'__ ~ -r 1 r i
I 3 ~ ~ ~~ II f~ _ ~ yLJ •' i ~ ~ _~ I' I .. it
~ , `~~ I r ~
- l~ - ,~ L -~__' ~ ~ s `~ t
.~ ~1 ,. ~., I ~ i I j •~ ;. i
~~ ~~__- 11 i7~ ~, f, I ~' I ~ ._ 1 ~ - ~ ~-~ ~ ~.'_'~ - e ~ ~ ~~ 1 ~~
i '`'~I - ~T ` I 1'_-
~` 11 -~ -- _ -~ , __ E _~
~1 ~ 4
1:.~.~-- -- ' -:-~ - ~r~~a _ T
.~ , _~
r ~ I }I Y 4t
• 1 Y - ~ ~4 ~~'i S , 1 1 --
~ ~ ti t - "' x=-_ ~-- 1' 1
- r-
Vicinity Map
Underwood Property
Legend Walnut Grove Church Road
- Lhdenuood boundary t+~jor roads 0 t:OD 2,t~ ~A00 Feet
- Lakes & reservoirs ~' US Highway ~~~
- tut~'or streams ~ NC Fighway /r'^~
~ CrangeCounty ~,r~ 1
Munia al - hAalor toads Nat Highway ERm I'.i
p NU 8)22)08 \, • '
Paroel boundary •f-
'°T7!d ~ ,~ ~ - ~1
COnse~,ation Easement
~"~
,~
~,, ~ Unde~ood/Covey Cree rOpos
~` T . k
~~
fi . ~ ~ .~k
~.~
{ ~ t. ~1 ~~`~:
;"~~ ~ ~1•
„~~
- ~ , ._~ .
~ ~ 'aI~
~t ~
~'s_
}. - ~~,
.n
'k, ~ 4 •.~
~.
Legend
(''`Q Unge^'~'aod boundary
`--~1 Conservation e
asement (7 58 acres)
Residential env
Parcel elope X1.47 acres)
bounda
~'~ Streams ry
2008 orthophotos
,~,
L 162,5 325
650 Feet
'T
:.,~ ~'
~ 'W ,_
Orange Coun
ERCD ~
MJ 6/4/09 (l!\^~lt
I.YJ 1