HomeMy WebLinkAbout2009-076 ERCD - Orange Co and Preservation of the Eno River regarding Utilization of Former Water Supply WellP~f y- /s aoo~
' ~ County of Orange and Association for the Preservation of the Eno River Agreement lp Q
September 15, 2009
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
MEMORANDUM OF AGREEMENT
ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER
and
COUNTY OF ORANGE
REGARDING UTILIZATION OF WATER SUPPLY WELL
THIS AGREEMENT, made and entered into between the Association for the Preservation of the
Eno River, Inc.,, a 501(c)(3) non-profit corporation organized and existing under the laws of the
State of North Carolina, with an address of 4404 Guess Road, Durham, North Carolina 27712
(hereinafter referred to as the "Association"), and the County of Orange, an elected body of
North Carolina, with an address of 200 South Cameron Street, Hillsborough, North Carolina
27278 (hereinafter referred to as the "County"), for the utilization of a former water supply well.
WITNESSETH
WHEREAS, the parties are vested with the power and authority to own and improve real estate
for recreational and other public purposes; and
WHEREAS, the Association owns a parcel of land in Orange County known as the Eno
Confluence Property, identified by Orange County TMBL 3.4..3, and Orange County PIN
9856362947, with a street address of 4214 Highland Farm Road, which is currently used for
open space conservation and watershed protection, and may be used for educational or other
purposes in the future; and
WHEREAS, Orange County is interested in monitoring groundwater conditions across the
County, and as such, intends to develop the Orange County Groundwater Observation Well
Network, an assemblage of observation wells located across the County; and
WHEREAS, the County and the Association recognize the mutual benefit and interest of the
parties hereto, and to the public generally, in the operation of the proposed Groundwater
Observation Well Network; and
WHEREAS, the laws of the State of North Carolina provide that the parties hereto may contract
and agree, each with the other, for the joint use of facilities for the stated public purposes; and
WHEREAS, an out-of--use water supply well is located on the Eno Confluence Property near
Highland Farm Road; and
-~ County of Orange and Association for the Preservation of the Eno River Agreement
September 15, 2009
WHEREAS, the Association has agreed to allow the use of said out-of--use water supply well
located on the Eno Confluence Property and identified on the map in Attachment 1, as part of the
proposed Orange County Groundwater Observation Well Network, a system of groundwater
observation wells throughout Orange County intended to permit monitoring of groundwater
conditions in the County;
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises and
obligations set forth herein, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. OPERATION AND MAINTENANCE OF SITE
The County, its employee's, agents, and third party contractors shall have the right to
use the well located on the property at 4214 Highland Farm Road for the collection of
groundwater level information, the collection of water quality samples, and the
collection of geological and geophysical information. The County will be responsible
for coordinating and supervising all such investigations.
The County will be solely responsible for the maintenance of the well on the Eno
Confluence Property during the term of this agreement, including any repairs which
may be necessary to the well or well house to permit ongoing operation of the well,
and shall repair any damage to the well or other property of the Association arising
out of the use of the premises by the County, its employees, agents or third party
contractors. Orange County will be responsible for the security of the well as well as
the proper use of the well to achieve the stated goals of the Orange County
Groundwater Observation Well Network. Use of the well shall include the right of
ingress and egress between the well and Highland Farm Road across the said property
of the Association.
During the term of this agreement the Association shall refrain from using the well
for water supply or other purposes.
2. ADDITIONAL DETAILS
A. CASUALTY AND LIABILITY INSURANCE: It is understood and agreed by and
between the parties hereto that each party shall carry such casualty and liability insurance as
will protect its interests in said facilities, and protect itself in the event of injury to persons or
property involved in the use of said premises by said party. Each party shall furnish to the
other party upon demand, satisfactory evidence of insurance.
B. INDEMNITY: The County shall, to the extent allowed by law, indemnify and hold harmless
and defend the Association, its agents and employees from any claims, cost, expense,
liability, action or judgment, including attorney's fees, arising out of or related to any
personal injury, death or property damage with respect to the use of the premises by the
County, its employees, agents or third party contractors, except to the extent the same are
caused by the negligence or misconduct of the Association.
`'' County of Orange and Association for the Preservation of the Eno River Agreement
September 15, 2009
C. CONSERVATION EASEMENTS: The parties acknowledge that the Association's said
property is encumbered by two conservation easements, one held by the State of North
Carolina, and the other held by Orange County, copies of which are attached hereto as
Exhibits A and B, respectively. The County agrees that it shall not violate the terms of either
conservation easement, and that if such a violation shall occur as the result of the use of the
property hereunder by the County, it's employees, agents, or third party contractors, the
County will restore the property to its condition prior to the occurrence of the violation, and
will hold the Association harmless from any loss, claims, cost, expense, liability, action or
judgment, including attorney's fees, arising out of or related to such violation.
D. AMENDMENTS: This agreement may be amended by mutual written agreement of the
Association and the County.
E. TERM: This agreement shall exist and continue for a period of five (5) years, beginning
October 1, 2009 and ending September 31, 2014, and may be extended thereafter for
successive five year periods upon the mutual agreement of the parties.
F. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement of the parties
hereto.
IN WITNESS WHEREOF, the parties to this Agreement have duly and validly approved it and
caused it to be executed in their behalf by the undersigned agents.
This, the ~ day of ~, 2009.
PRE
President
Bercedis Peterson, Secretary
COUNTY ORA
Chair
Orang~County Cplnmissioners
Attest' Donna Baker, Clerk to the Board
Approved as to Form and authorization:
County of Orange and Association for the Preservation of the Eno River Agreement
September 15, 2009
~'~1
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County A orney
This Agreement has been pre-audited in the manner required by the Local
Government Budget and Fiscal Control Act.
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OrAu a CQp^tY ERCD
gust t7, 2009
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FILED Jo ca H. Pearson 20090102000000060 ELISE
Register of Deeds, Orange Cc, NC
Recording Fee: $77.00 ~ Bk:RB4644 Pg:151
NC Real Estate 1'X: $.00 01!0212009 10:26:55 RM 7122
This instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hazgrave & 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
1st day of October , 2008 by THE ASSOCIATION FOR THE PRESERVATION OF
THE ENO RIVER VALLEY, INC., a North Carolina nonprofit corporation, having an address
of 4404 Guess Road, Durham, NC 27712 (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. Grantor is the sole owner in fee simple, of certain real property (the "Easement
Area"), which consists of approximately 110.42 acres of land, located in Cheeks Township and
Cedar Grove Township, Orange County, North Carolina, and identified as Tract 1 on the plat of
property titled "Property Surveyed for Eno River Association" prepared by Alois Callemyn,
which plat is recorded at Plat Book 103, Pages 16-17, Orange County Registry (PIN 9856-3~~
2947). The Easement Area includes but is not limited to improvements, which are shown on Vv
Exhibit B, 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, 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 quality of water running off from this
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land and into the Eno River, which river has both conservation value and is a public water supply
for residents of Orange County.
The grant of this Conservation Easement will 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 area that has not been subject to significant
development, which provides a "...relatively natural habitat offish, wildlife, or plants, or similar
ecosystem," as that phrase is used in P.L. 96-541, 26 UCS 170(h}(A)(ii), as amended, and in
regulations promulgated thereunder. Specifically, the Easement Area is habitat for a variety of
native plants and animals known to inhabit the Upper Eno River Macrosite as described on Pages
78-82 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North
Carolina (2004), by the North Carolina Natural Heritage Program.
The Easement Area also includes land within a zone designated by Orange County as a
"critical area" of a protected water supply watershed for the Corporation Lake Reservoir and
Lake Ben Johnson Reservoir. Another primary purpose of this Easement is to protect the largely
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 Orange County.
The Easement Area also contributes to the open space and rural character of Cedar Grove
Township and northern Cheeks Township and the Upper Eno Protected Watershed, so classified
in the Orange County Zoning Ordinance. It is a further purpose of this Easement to help to
protect the rural character and open space of Cedar Grove Township and northern Cheeks
Township.
The natural and wildlife habitat resources of the Property, and its contribution to the
protection of the area water supply and rural character, and the other conservation interests
described herein are collectively referred to as the "Conservation Values" of the Easement Area.
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, are also recognized by, and this Conservation Easement will also serve, the following
clearly delineated governmental conservation policies:
(1) the Orange County Board 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
September 2, 1981 as amended) with its goal of conserving and protecting Orange County's
significant "Resource Protection Areas" from adverse development impacts, including county
natural areas, wildlife corridors and lands placed by individual property owners into conservation
easements; and
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(3) the Orange County Lands Legacy Action Plan, which was adopted by the
Orange County Board of Commissioners on September 12, 2006, and which recognizes the need
to protect riparian buffers in the critical area of the Upper Eno protected watershed; and
(4) the protection of similar 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
(5) NCGS § 139-2 et seq., which provides that "it is hereby declared ...that the
farm, forest and grazing lands of the State of North Carolina are 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 declared 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 Carolina 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 Carolina 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 Clean Water Management Trust Fund, authorized by NCGS § 113A-251 et
seq., which finances 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
(8) 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
(9) the zoning of the property by Orange County as Agricultural Residential.
D. The characteristics and Conservation Values of the Easement Area, its current use
and state of improvement, are described in a report entitled "Baseline Documentation Report for
the Confluence Property," dated August 2008 (hereafter "the Baseline Report"), of which a
summary is attached as Exhibit A to this Conservation Easement. Grantor worked with 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. 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
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authorized the creation of Conservation Easements pursuant to the terms of the Uniform North
Carolina Conservation and Historic Preservation Agreements Act, NCGS § 121-34 et seq., which
provides that conservation easements are "interests in land," which may be effective
"perpetually;" which provides 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 the Grantor and
Grantee wish to avail themselves of the provisions of those laws.
NOW, THEREFORE, Grantor, for ten dollars {$10.00), and 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 described above 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.
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 them 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 are expressly
prohibited or which are 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.
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2.1 Subdivision and Conveyance. The Easement Area consists of one single
tract of land. The Easement Area may not be further divided, subdivided or partitioned to
establish additional parcels. Any future conveyance of the fee simple interest in the Easement
Area shall be subject to this Conservation Easement. Grantor agrees for itself, its successors and
assigns, that in the event it transfers the Easement Area, such transfer is subject to Grantee's
right of ingress, egress, and regress over and across the Easement Area for the purposes set forth
herein.
2.2 Construction. The Grantor's rights to construct or reconstruct buildings
and other improvements are described in subparagraphs (a) through (d) below. Any construction
or reconstruction not permitted below is prohibited. Before undertaking any construction or
reconstruction that requires advance permission, Grantor shall notify Grantee and obtain written
permission. 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.
(a) Fences -Existing fences may be repaired and replaced, and new fences
maybe built on the Property to identify property boundaries and for
agricultural, grazing, and horticultural uses as authorized in Section 2.4 of
this Conservation Easement without any further permission of Grantee.
(b) Existing Structures & Improvements -The remains of former residential
structures and agricultural outbuildings exist in the location identified as
"Building Envelope" in Exhibit B. Existing structures and improvements
may be repaired, enlarged and replaced at their current locations each
within the "Building Envelope" without further permission from the
Grantee.
(c) New Structures & Improvements --New structures and improvements may
be built without any further permission of Grantee provided they are
located in the location marked as "Building Envelope" on Exhibit B.
Any new buildings, structures or improvements proposed for locations
outside of the "Building Envelope" shall be for educational or recreational
purposes only and may be built only with the advance written permission
of the Grantee. Grantee shall give such permission within a reasonable
time if it determines that the proposed building, structure or improvement
would not diminish or impair the Conservation Values of the Easement
Area or otherwise be inconsistent with this Conservation Easement.
(d) Utility Services and Septic Systems -Installation, maintenance, repair,
replacement, removal and relocation of electric, gas, and water facilities,
sewer lines and/or other public or private utilities, including telephone or
other communication services over or under the Easement Area for the
purpose of providing electrical, gas, water, sewer, or other utilities to serve
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improvements on the Easement Area permitted herein, and the right to
grant easements over and under the Easement Area for such purposes, is
permitted. Grantors shall not permit or grant easements for utility
transmission or distribution facilities or systems without the written
consent of the Grantee. Maintenance, repair or improvement of a septic
system(s) or other underground sanitary system that exists on the
Easement Area at the time of this Conservation Easement, or the
construction of a septic or other underground sanitary system, for the
benefit of any of the improvements permitted herein, is permitted. All
other utilities are prohibited on the Easement Area. Cellular
communication towers or structures are also prohibited on the Property.
(e) Pedestrian Trails -Pedestrian trails may be constructed to support the
recreational and educational uses of the Easement Area permitted by this
Conservation Easement. Such trails must be constructed of a pervious
surface and in accordance with best management practices to minimize
soil erosion and water quality impacts, and may not be more than six feet
(6') wide. Grantor reserves the right to construct no more than two (2)
pedestrian bridges to cross over rivers and streams and no more than 200
feet of boardwalk as part of a future trail system, subject to Grantee
approval as to location.
2.3 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, hunting and fishing, and other recreational uses
that require no buildings, facilities, surface alteration or other development of the land. 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 the Conservation Values of the
Easement Area.
2.4 Educational Use. Grantor reserves the right to engage in and permit others
to engage in educational uses in the Easement Area not inconsistent with this Conservation
Easement, and the right of access to the Easement Area for such purposes including organized
educational activities such as site visits and observations.
2.5 AQ+-~cultural Grazing and Horticultural Use. Agricultural, grazing, and
horticultural uses of the Easement Area are allowed within the locations identified as "Agricultural
Use Envelopes" identified in Exhibit B to this Conservation Easement. Agricultural, grazing, and
horticultural uses of any other portion of the Easement Area are prohibited.
2.6 Forest Vegetation Mann eg, ment. Commercial timbering of trees within the
Easement Area is prohibited. Grantor shall have the right to a) cut and remove diseased trees,
shrubs, or other plants; b) cut and remove invasive (usually non-native) trees, shrubs and other
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R84644 157 7122
plants; c) cut and remove undesirable early succession trees and replant with more desirable
hardwood species; and d) to cut firebreaks. Trees may also be removed to prevent personal
injury and property damage, or to salvage fallen timber. There shall he 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 ofnon-native animals, or disturbance or change in the natural
habitat in any manner. All forest management activities must be pursuant to a Forest
Management Plan prepared by a North Carolina 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.
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 perntted 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.
2.8 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. Diking, draining, filling or removal of wetlands is prohibited.
2.9 Natural Resource Restoration and Enhancement Activities. Grantor may
engage or contract others to engage in any activity designed to repair, restore, or otherwise
enhance the natural resources found or once present on the Easement Area, such as the
restoration of the riparian forest corridors, so long as such activities are consistent with the
Conservation Values of this Conservation Easement and consistent with a management plan
prepared for this property and approved in advance by the Grantee.
2.10 Si~na~e. 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 Grantor as fee simple owner of the Easement Area, and
to identify 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 existing agricultural field.
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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,
hazardous 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 livestock and/or humans by means
and methods with 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. 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 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
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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,
its 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 Species. 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) Uykeep and Maintenance -The Grantor retain 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 Iaw. In addition, Grantor agrees to
maintain liability insurance covering the Easement Area with the limits as follows: (i) $300,000
per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per
occurrence for properly damage; and warrant that Grantee is and will remain a named insured on
Page 9 of 20
u~pmaiiimiu~ii
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. 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, Grantee shall have the right to enter the Easement Area for the purpose of
inspecting for compliance with the terms of this Conservation Easement. 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, 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 finds
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 party 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 20
iii~iiimiuiiu
~. TRANSFER OF EASEMENT. 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 Cade, 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 similar purposes
that agrees to assume the responsibility imposed by this Conservation Easement.
9. TRANSFER OF EASEMENT AREA. 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. The 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 (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.
All termination 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.
Page 11 of 20
~1M.~' ~uiumiunNia
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 it is the sole owner and seized
of Easement Area in fee simple and has good right to grant and convey this Conservation
Easement; that the Easement Area is free and clear 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 the Exceptions to Title
identified on Exhibit C hereto.
Page 12 of 20
~p.~..unuii~~sin
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:
Eno River Association
4404 Guess Road
Durham, NC 27712
To the Grantee:
Orange County Environment and
Resource Conservation Department
Orange County, North Carolina
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 hazardous substances or wastes on the Easement
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 appear. 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 arising from such a
borrowing is made subordinate to this Conservation Easement.
22. EXHIBITS AND DOCUMENTATION.
(a) Documentation Report. The parties acknowledge that the Baseline Report, a copy
of which is on file at the offices of 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 A.
Page 13 of 20
m~~....,, ~iu~ai
(b) Future Construction. Exhibit B is a GIS map and sketch showing the
configuration of the property owned by Grantor.
(c) Exceptions to Title. Exhibit C is a list of encumbrances deemed by Grantee as
acceptable exceptions to title.
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, 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 20
~.. ,nir~i~sino
IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTOR:
ASSOCIATI FOR THE P RVATION OF THE ENO RIVER VALLEY, INC.
By: / ~
Holly F. R ,Pre ' ent
ATTEST:
.~
Emily E. H •bert, Secretary
Accepted:
GRANTEE:
ORAN~E~JUNTY, NOR CAROL A
By:
Barry Jacobs it
Orange Co Bo f C issioners
ATTEST:
D nna S. Baker, Clerk to ee'a~'~` ®r"p,,
-~---__
Board of Commission s ..;~<~.; ;;-;:~-
u ~ J ~~'~%
C ~~~~
Page 15 of 20
i~l'ioiuuwimi
IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTOR:
ASSOCIATIO FOR THE P RVATION OF THE ENO RIVER VALLEY, INC.
Accepted:
By: ~ ~ ~
Holly F. R ,Pre ' ent
ATTEST:
Emily E. H Bert, Secretary
GRANTEE:
ORANGE COUNTY, NORTH CAROLINA
By:
ATTEST:
Barry Jacobs, Chair
Orange County Board of Commissioners
Donna S. Baker, Clerk to the
Board of Commissioners
Page 1 Hof 20
~~~~ii~d
Acknowledgments
NORTH CAROLINA
COUNTY OF ~~t-{~,cN.,.
I, rfl _ K..t~~-. ~cn.~ a Notary Public of the County and State aforesaid,
certify that Holly F. R d, President, and Emily E. Herbert, Secretary, of the Board of Directors
for the Association far the Preservation of the Eno River Valley, Inc., personally came before me
this day, each acknowledging to me that she signed the foregoing document.
Witness my hand and official stamp or seal this the ~ day of ~LTo~ , 2008.
My conunission expires:
it J15 -Zoli
NORTH CAROLINA
COUNTY OF ORANGE
U
~2
oG~'yq U 8 pv .~' s
Q
Notary ub c
Print name: m • K-l ~g~ ~ ~,.~
I, An~elo~ ~ ~~'~`~~`-- Rac~eff , a Notary Public of the County and State aforesaid,
certify that D nna 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 ~ sa day of J~c'~~r?~Cr , 2008.
/~~~~;,
c% ~ L
:'~ Notary Pu is
My commission expires: j f
~ - % •- a U ~ '3 iANiEi~t/ TtpMPaOM~CICET7
~mr~+r rtl~
Page 16 of 20
i iiiiruimiiiu
Acknowledgments
NORTH CAROLINA
COUNTY OF ~~~I-,w•,•
I, (Yl . ~,.! ~,~~., ~~. ~..~ a Notary Public of the County and State aforesaid,
certify that Holly F. R d, President, and Emily E. Herbert, Secretary, of the Board of Directors
for the Association for the Preservation of the Eno River Valley, Inc., personally came before me
this day, each acknowledging to me that she signed the foregoing document.
Witness my hand and official stamp or seal this the ~ day of lJ~~o~' , 2008.
GN JOR~ ,,~,~
~' o~ARy -~y
My commission expues:
il-1`'t-Zo-I
NORTH CAROLINA
COUNTY OF ORANGE
2
OG~'yq U B~~
~~ L~--
Notary ub c
Print name: m • K-I ~ ~;1,~ 1~ ~
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
My commission expires:
day of , 2008.
Notary Public
Page 1 f~3of 20
imimu~insu
SUMMARY: BASELINE DOCUMENTATION REPORT
for the CONFLUENCE PROPERTY
Landowner: Eno River Association, 4404 Guess Road, Durham, NC 27712
Property/Easement Area: One single parcel totaling 110.42 acres
Township/County: Cheeks and Cedar Grove/Orange
PIN #: 9856-36-2947
Plat: Book 103 Pages 16-17
Deed: Book 4426 Page 510
Current Land Uses: The primary land use of the property is as open space. In addition, several
agricultural fields are under production for hay. Limited hunting is allowed on the property.
Property Summary: The Confluence property (the former Stollings tract) is one single parcel
(110.42 acres) located west of Highland Farm Road in northwest Orange County, NC (Cheeks and
Cedar Grove Townships), downstream from Lake Orange and the Hillsborough West Fork
Reservoir. There will be two conservation easements on the property. The Clean Water
Management Trust Fund (CWMTF) will be granted an easement on the 300-foot-wide river buffer
of the properly and Orange County will be granted an easement on the entirety of the property.
The topography of the property slopes from the central interior upland areas towards the property
boundaries located along the East Fork Eno River and West Fork Eno River. Gentle slopes (0 to 5
%) characterize the wide flood plain along the river frontage. Steeper slopes (15 to 50%) are
found above the floodplain, leading to the more moderate slopes of the upland interior.
The property is a mix of forestland and agricultural Fields. The forest covers the majority of the
floodplain and slopes portion of the property. The overstory consists of sycamore (Platanus
occidentalis}, yellow poplar (Liriodendron tulipifera), sweet gum (Liquidambar styraciflua),
American beech (Fagus grandifolia), and swamp chestnut oak (Quercus michauxxt~, with eastern
red cedar (Juniperus virginiana), Virginia pine (Pines virginiana), and shortleaf pine (Pines
echinata) found further up the slopes. The entire forest buffer was selectively logged in 2004-05.
Slash piles and logging roads are present along the eastern edge of the large southern agricultural
field. The majority of the upland is currently maintained as agricultural fields for hay production,
with many of these fields having been farmed since the property was settled in the 1800s. Two of
the fields, one located just south of the property entrance and the other on the northwestern property
line along West Fork Eno River, were recently abandoned.
Aside from the agricultural fields and logging history of the area, there i~ signif cant evidence of
human disturbance throughout the property. Located on the upland ~~st west of Highland Farm
Road is an old home site consisting of three buildings with the remains of a large barn situated
just south of the homesite. In the northwest corner of the property are another old homesite, a
sharecropper's home, as well as the remains of an old mill site located along the West Fork of
Page 17 of 20
i~yui~ii~iiuud
the Eno. Along millrace originates northwest of the property near Efland-Cedar Grove Road
and runs southeast to this mill site, forming the entire northeastern boundary of the property and
the northwest boundary between the property and the adjacent Penny tract, also owned by the
Eno River Association.
Significance: This section of the upper Eno, north and west of Hillsborough, was identified as a
high priority for conservation in the Eno River Riparian Corridor Plan (2000), commissioned by
CWMTF. A conservation plan developed by the Upper Neuse Clean Water Initiative (2006)
ranked this property as a highly important conservation target for water quality -within the top
2% of all properties in the Upper Neuse Basin. This site was also identified as a high priority for
protection in Orange County's Lands Legacy Action Plan (2006-08), adopted by the Orange
County Board of Commissioners in September 2006, and the eastern property boundary, with
4,900 feet of frontage along the East Fork Eno River, was recommended for protection as a
"Wildlife Corridor" in the Orange County Comprehensive Plan. Protection of that corridor was
recommended in the Inventory of Natural Areas and Wildlife Habitat for Orange County (1988).
Natural Area Significance: National. A significant number of rare aquatic species are
contained within the waterways surrounding the Confluence property, including the Atlantic
pigtoe (Fusconaia masoni) and creeper (Strophitus undulates}, state endangered and state
threatened mussel species, as well as the Neuse River waterdog (Necturus lewisi), a fish species
that is of state special concern. The property itself is part of the Upper Eno Macrosite that
contributes to the quality of the habitat. In addition, on a field visit to inspect the property, the
Eno River Association located an element occurrence of the Yellow giant-hyssop (Agastache
nepetoides), which is a state listed plant.
Significaut Features:
• The property has approximately 10,700 feet of river frontage on the East Fork
Eno River and the West Fork Eno River
• The property contains 76 acres of intact hardwood forest that buffers the East
Fork Eno River and the West Fork Eno River
• The property buffers nationally significant Eno River Aquatic Habitat Natural
Heritage Site, and composes part of the Upper Eno Macrosite
• The property includes remains of a former mill on the West Fork Eno River
Page 18 of 20
iu~~iu~~iN'
Legend
® H"°'op°
®~dcns,nti use rmeaoes
Q 9bBipc aad
- Biiidaga
Faun mad
THIS MAP [S NOT A CERTIFIED SURVEY AND
HAS NOT BEEN REVIEWED BY A LOCAL
GOV ERNMENT AGENCY FOR COMPLIANCE
----- ... . .. . ......... ...... . ...,..ter...-, .,.,. ANT
Exhibit B
Orange County Conservation Easement
Confluence Properly (110.42 acres)
~~~
~ E.;airg RMdSb ba aB.ndoned
Q quasi Boundary
- tkpms
o ~m mo Sao Faa
V(J ~ ~ ~
Orate Canty
HtCD
MJ 8/17/06
~WU,1~VN~r~iu~on
EXHIBIT C
EXCEPTIONS TO TITLE
1. Subject to matters shown on recorded Plat Book 103 at Pages 16 and 17, Orange County
Registry, including right of way for Highland Farm Road (SR 1332), property boundary
lines consist of center line of East and West Forks of Eno River and Old Mill Race
located on the Land.
2. Title to that portion of Land within the right-of--way of Highland Farm Road (SR 1332).
3. Rights of others thereto entitled in and to the continued uninterrupted flow of Old Mill
Race located on the Land.
4. Title to that portion of the Land lying below the mean high water mark of East and West
Forks of Eno River.
5. Riparian rights incident to the Land.
6. Right of Way Agreement with State Highway Commission recorded in Deed Book 209 at
Page 474, Orange County Registry.
7. Utility Easement(s) to Duke Power Company recorded in Deed Book 105 at Page 165,
Orange County Registry.
8. Conservation Easement to the State of North Carolina recorded in Book 4591, Page 525,
Orange County Registry.
Page 20 of 20
FLLED JoyCe H. Pearson
Register of Deeds, Orange Co,NC
Recording Fee: 553.00
NC Real Estate X: E.00`~~
.3
2008@820000206790 EASE
Bk:R64591 Pg:525
08/20!2008 08:55:39 AM 1/14
CONSERVATION EASEMENT
Confluence Property
~~
Prepared by Elizabeth Lackey Jacobs
After Recording Return to Grantor
NORTH CAROLINA ORANGE COUNTY
Parcel No. 9856-36-2947 ~ CWMTF No. 2007-010
THIS DEED OF CONSERVATION EASEMENT ("Conservation Easement") is made
on this ~ day of August, 2008 by and between ASSOCIATION FOR THE
PRESERVATION OF THE ENO RIVER VALLEY, INC., a North Carolina nonprofit
corporation, having an address of 4404 Guess Road, Durham, NC 27712 (herein "Grantor") and
the STATE OF NORTH CAROLINA, whose mailing address is State of North Carolina,
Department of Administration, State Property Office, 1321 Mail Service Center, Raleigh, NC
27699-1321 (herein "State").
RECITALS & CONSERVATION PURPOSES
A. Grantor is the sole owner in fee simple of that certain real property containing
110.42 acres more or less, located in Cheeks Township, Orange County, North Carolina, and
more particularly described by deed recorded in Deed Book 4426, Page 510 in the Orange
County Register (hereinafter the "Property").
B. Grantor is anon-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.
C. The State has enacted the Uniform North Carolina Conservation and Historic
Preservation Agreements Act (the "Act"), Chapter 121, Article 4 of the North Carolina General
Statutes ("NCGS"}, which provides for the enforceability of restrictions, easements, covenants or
conditions "appropriate for retaining in land or water areas predominantly in their natural, scenic,
or open condition ...."
II~I~tlV~VIIIi~IN~I
I IVnI11V111
D. The Clean Water Management Trust Fund, ("Fund") with an address at 1651 Mail
Service Center, Raleigh, North Carolina 27699-1651 is an independent agency of the State and is
authorized by NCGS Chapter 113A, Article 18, 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.
E. Grantor and State have agreed to set aside 67.87 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").
F. The Easement Area is shown on a survey entitled "Conservation Easement Property
Survey for the State of North Carolina, Clean Water Management Trust Fund and Eno River
Association, Grant #2007-010" by Alois Callemyn, PLS dated January 4, 2008 and recorded in Plat
Book i w-4, Page Ic$ of the Orange, County Registry.
~~~
G. Grantor and State recognize that the Easement Area is located adjacent to the
West Fork and East Forks of the Eno River and the Easement Area has been deemed by the State
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
State recognize that the Easement Area .has other ,Conservation Values including fish and
wildlife conservation, open space, and scenic values.
A. Grantor has received or will receive a grant from the Fund, identified as Grant
Agreement No. 2007-010 (the "Grant Agreement"), entered into between the Grantor and the
Fund and effective as of June 11, 2008, in consideration of which the Grantor has agreed to
obtain this Conservation Easement. The terms and conditions of said Grant Agreement are
hereby incorporated by reference. It is on file and available for public inspection in the offices of
the Grantor, the Fund, and the North Carolina Department of Environment and Natural
Resources ("NC DENR").
I. The Grantor, 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
in a manner that will protect the quality of waters of the East and West Forks of the Eno River,
and otherwise promote the public purposes authorized by NCGS Chapter 113A, Article 18, and
as set forth in the Grant Agreement. The Parties further acknowledge and agree that State will
accept this Conservation Easement, that the State will be the ultimate Grantee and holder of this
Conservation Easement, and that Grantor has received consideration for granting this
Conservation Easement to the State and thus restricting the uses of the Easement Area.
J. Grantor and State acknowledge that the Easement Area is currently unimproved
except for one abandoned, freestanding barn. The characteristics of the Easement Area, its
current use and state of improvement are described in a Baseline Documentation Report (the
II~~~~ J j~~lllllll I ~~lill III I ~
1 527 3/14
"Report's that is on file in the offices of the Grantor and the Fund, and available for public
inspection. The Parties acknowledge that the Report is the appropriate basis for monitoring
compliance with the objectives of preserving the conservation and water quality values; and that
it 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 such present condition.
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 State, its successors and assigns, and the
State hereby accepts, this 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 and
easement to preserve and protect the Conservation Values.
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 the 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 State against Grantor, its representatives, successors, assigns, lessees,
agents and licensees.
ARTICLE II. RIGHTS RESERVED TO GRANTOR
Grantor reserves certain rights accruing from the fee simple ownership of the Easement
Area, including the right to engage in or permit others to engage in the uses of the Easement Area
that are not inconsistent with the purpose(s) of this Conservation Easement. All rights reserved by
the Grantor, are reserved for Grantors, their representatives, successors, and assigns, and are
considered to be consistent with the conservation purposes of this Conservation Easement. The
provisions, conditions, and restrictions of this Conservation Easement apply to the Easement Area.
Except for the specific restrictions and prohibitions made applicable herein to the Easement Area,
Grantor shall continue to own and may use the Easement Area in any lawful manner. Grantor
expressly reserves the following rights:
A. Passive Recreational Use. Grantor reserves the right to engage and to permit others
to engage in passive recreational uses of the Easement Area as provided herein, and by Fund
approved amendments thereto, requiring minimal surface alteration of the land, so long as related
alterations, construction, improvements, maintenance, activities and uses pose no threat to the
conservation values of the Easement Area.
i~iiutiuinn
B. Public Use and Access. Grantor reserves the right to allow public access and use of
the Easement Area for the purpose of creating open space with associated recreational activities,
including, without limitation, conducting educational tours, scientific study, animaUplant
observation, walking, biking, fishing, and any other purposes consistent with these accepted uses
and maintaining conservation values. To accomplish the above uses, the Grantor may construct and
maintain paved or unpaved greenway trails, two (2) observation/viewing platforms, two (2)
Pedestrian Foot bridges, landscaping screening, and a gated entrance, which are provided by this
Conservation Easement. All improvements shall be subject to the terms and conditions set forth
herein and by the aforementioned Grant Agreement and Fund approved amendments.
C. Hiking or Greenway Trails. Grantor reserves the right to construct and maintain
paved or unpaved greenway trails on the Easement Area. All trails must be located at a
minimum distance of fifteen (15) feet from the top of the bank and tributaries of the West and
East Forks of the Eno River, unless such locations are physically impracticable. In the
construction of such trails and when required by the terrain, boardwalks, ramps and handrails are
permitted herein. If required, all trails and associated improvements may comply with the rules
and regulations of the Americans with Disabilities Act of 1990, Title III regulations, ADA
Standards for Accessible Design, 28 CFR Part 36, revised July 1994 and amendments thereto
("ADA") and with the American Association of State Highway and Transportation Officials
("AASHTO"). The Grantor may also construct and maintain park benches, litter receptacles, and
traiUfeature signs along the greenway trails. All necessary care shall be taken to complete the
construction of such features in a manner so as not to cause or allow sedimentation of the East
and West Forks of the Eno River either during or after construction.
D. ObservationlViewing Platform. Grantor reserves the right to construct,
maintain, and repair two (2} observation/viewing platforms constructed of composite building
materials on the Easement Area with optional bench seating, handrails, connecting steps and
ramp as required by the terrain to be located on the bank of the East and West Forks of the Eno
River as allowed and approved by the North Carolina Division of Water Quality, provided such
platforms are connected to the greenway trails constructed on the Easement Area. Construction
of such platforms must comply with ADA. All necessary care shall be taken to complete the
construction of such features in a manner so as not to cause or allow sedimentation of the West
and East Forks of the Eno River either during or after construction.
E. Early Successional Habitat Areas. The Parties agree and acknowledge that the
Grantor reserves the right to establish and maintain existing areas located along the East and
West Forks of the Env River in early successional habitat for the purpose of providing habitat
diversity for wildlife species and may include the planting of various grasses, forbs, and
herbaceous vegetation.
F. .Natural Community Restoration. The Parties hereto agree and acknowledge
that the Grantor reserves the right to perform all activities necessary to restore the natural plant
and animal communities on the Easement Area. All necessary care shall be taken to complete
the construction of such features in a manner so as not to cause or allow sedimentation either
during or after construction.
IIN~IIB
G. Pedestrian Foot Bridges. Grantor reserves the right to construct, maintain, and
gain access to two (2) pedestrian footbridges to be constructed five (5) to ten (ld) feet wide in
compliance with the AASHTO and with the ADA. Such bridges may be located across the East
and West Forks of the Eno River and tributaries thereto, provided such bridges are connected to
the greenway trails permitted herein.
Notwithstanding the foregoing, all amenities and improvements to be located on the
Easement Area must comply with the terms set forth herein and in the aforementioned Grant
Agreement. The Grantor shall maintain the Easement Area in a clean, natural and undisturbed
state, and shall comply with all applicable land use regulations, and other applicable laws and
ordinances, subject to this Conservation Easement. The total cleared, and not re-vegetated,
pervious and impervious surface areas associated with all aforesaid improvements,
including, but not limited to, the greenway trails, boardwalks, ramps, steps,
observation/viewing platforms, pedestrian bridges, shall not exceed ten percent (10%) of
the total area of the Easement Area.
Furthermore, the Parties 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.
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, Grazing and Horticultural Use. Agriculture, 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 as
noted in Article II above and 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 herbicides and pesticides for fire containment, protection and damage, insect and
disease control, storm-related damage, human safety, restoration of hydrology, enhancement of
preferred native overstory composition, wetlands enhancement and/or control of non-native plants;
subject however to a written plan for same prepared by a registered forester, (3) hunting and fishing
pursuant to applicable local, state and federal rules and regulations; and (4) removal of damaged
u~li,~i pl~iuiii~wm~
trees and debris caused by storm and fire and posing a threat to life or property.
D. Construction of Buildings and Recreational Use. With the exception of the
structures and facilities expressly permitted under Article II of this Conservation Easement, 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, entry signs, signs
identifying the Conservation Values and purposes of the Easement Area, and/or signs identifying
the Grantor as owner of the Property, the State as holder of this Conservation Easement, and the
Fund as the source of funding for the acquisition of the Conservation Easement; signs
proclaiming that the Easement Area will remain in its protected state, 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. Except as set forth in Article II above, there shall
be no pollution or alteration of water bodies and no construction or other activities that would be
detrimental to water purity or that would alter natural water levels, drainage, sedimentation
and/or flow in ar over the Easement Area or into any surface waters, or cause soil degradation or
erosion, nor any diking, dredging, alteration, draining, filling or removal of wetlands, except
activities to restore natural hydrology, wetlands enhancement, or to enhance or improve water
quality as permitted by state and any other appropriate authorities.
H. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles,
appliances, or machinery, or other materials on the Easement Area is prohibited.
I. Conveyance and Subdivision. The Easement Area may not be subdivided,
partitioned nor conveyed, except in its current configuration as an entity or block of property.
J. Mitigation. There shall be no use of the Easement Area or any portion thereof to
satisfy compensatory mitigation requirements under 33 U.S.C. Section 1344 or N.C.G.S. 143-
214.11 or any successor or replacement provision of the foregoing.
ARTICLE IV. ENFORCEMENT AND REMEDIES
A. Enforcement. To accomplish the purposes of this Conservation Easement, the
State 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
i~iiio~iruuiu
breach of the terms of this Conservation Easement by Grantor that comes to the attention of the
State, the State 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. If the breach remains uncured after ninety (90) days, the State may
enforce this Conservation Easement by appropriate legal proceedings including damages,
injunctive and other relief. The State shall also have the power and authority, consistent with its
statutory authority: (a) to prevent any impairment of the Easement Area by acts which may be
unlawful or in violation of this Conservation Easement; (b} to otherwise preserve or protect its
interest in the Easement Area; or {c) to seek damages from any appropriate person or entity.
Notwithstanding the foregoing, the State reserves the immediate right, without notice, to obtain a
temporary restraining order, injunctive or other appropriate relief if the breach of the term of this
Conservation Easement is or would irreversibly or otherwise materially impair the benefits to be
derived from this Conservation Easement. The Grantor and State acknowledge that under such
circumstances damage to the State would be irreparable and remedies at law will be inadequate.
The rights and remedies of the State provided hereunder shall be in addition to, and not in lieu of,
all other rights and remedies available to the State in connection with this Conservation
Easement, including, without limitation, those set forth in the Grant Agreement under which this
Conservation Easement was obtained.
B. Right of Entry and Inspection. State, its employees and agents and its
successors and assigns, and the Fund, 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, successors or assigns are complying
with the terms, conditions and restrictions of this Conservation Easement.
C. Condemnation. Whenever all or part of the Easement Area 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 the 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. The State, its successors and assigns, shall be
entitled to a portion of the proceeds of such sale, exchange, involuntary conversion of the
Easement Area, or any damage award with respect to any judicial proceeding. Such portion shall
be equal to the fair market value of the State's, its successors' and assigns', interest in the
Easement Area on the date of the recording of this Conservation Easement. "Proceeds of Sale"
shall mean the cash value of all money and property paid, transferred or contributed in
consideration for, or as otherwise required as a condition to the sale, exchange or involuntary
conversion of the Easement Area, or any damages otherwise awarded as a result of judicial
proceeding, minus the Grantor's expenses from such transaction or proceeding. The State shall
use its share of the Proceeds of Sale in a manner consistent with the conservation purposes set
forth herein.
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 State, its successor and assigns, shall be entitled to a portion of the proceeds of
such sale, exchange, involuntary conversion of the Easement Area, or any damage award with
...., .,Wi~hi~iiun'
respect to any judicial proceeding. Such portion shall be equal to the fair market value of the
State's, its successors' and assigns', interest in the Easement Area on the date of the recording of
this Conservation Easement. The State shall use its share of the Proceeds of Sale in a manner
consistent with the conservation purposes set forth herein.
E. Acts Beyond Grantor's Control. Nothing contained in this Conservation
Easement shall be construed to entitle the State 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, 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 Easement Area or harm to the Easement
Area resulting from such causes.
F. Costs of Enforcement. Any costs incurred by the State 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 State and any forbearance by the State 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 the State of such term or of any subsequent breach of the same or of any other term of this
Conservation Easement or of the State's rights. No delay or omission by the State in exercise of
any right or remedy shall impair such right or remedy or be construed as a waiver.
ARTICLE V. TITLE
The Grantor covenants and represents and warrants (i) that the Grantor is the sole owner
and is seized of the Property and the Easement Area in fee simple and has good right to grant and
convey the aforesaid Conservation Easement; (ii) that there is legal access to the Property and
the Easement Area, that the Easement Area is free and clear of any and all encumbrances, except
those permitted exceptions shown on the attached Exhibit A, none of which would nullify,
impair or limit in any way the terms or effect of this Conservation Easement; and (iii) Grantor
shall defend its title against the claims of all persons whomsoever, and Grantor covenants .that
the State, its successors and assigns, shall have the right to monitor and defend the terms of the
aforesaid Conservation Easement.
ARTICLE VI. MISCELLANEOUS
A. Stewardship of the Conservation Easement. Pursuant to the terms of the Grant
Agreement, the Grantor hereby covenants and agrees that it will monitor and observe the
Easement Area in perpetuity to assure compliance with the purposes and provisions of this
Conservation Easement and the provisions of the Grant Agreement, and that it will report on the
condition of the Easement Area, or provide for such reporting, to the State and the Fund no less
frequently than once a year; and further will report immediately to the State and the Fund any
observed and/or known violations of this Conservation Easement or the Grant Agreement.
~ .. ,.. uiiiutiiue~
B. 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 including the Easement
Area described herein, to notify 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.
Grantor, for itself, its successors and assigns, further agrees to make specific reference to this
Conservation Easement in a separate paragraph of any subsequent lease, deed, or other legal
instrument by which any interest in the Property or Easement Area is conveyed. The Property
owner shall not convey the Property or any interest therein, and shall not incur, assume, or suffer to
exist any lien upon or with respect to the Property without disclosing to the prospective buyer the
Conservation Easement and the obligations of the Property owner and limitations on use of the
Property.
C. Subsequent Transfers of the Conservation Easement. The Parties hereto
recognize and agree that the benefits of this Conservation Easement are in gross and assignable
with any such assignee having all the rights and remedies of the State hereunder. The Parties
hereby covenant and agree, that in the event this Conservation Easement is transferred or
assigned, the transferee or assignee of the Conservation Easement will be a qualified
organization as that term is defined in Section 170(h)(3) of the Internal Revenue Code of 1986,
as amended, or any successor section, and the regulations promulgated there under (the "Code")
which is organized or operated primarily for one of the conservation purposes specified in
Section 170(h)(4)(A) of the Code, and a qualified holder as that term is defined in NCGS 13121-
35 (2) or any successor statute. The Parties further covenant and agree that the terms of the
transfer or the assignment will be such that the transferee or assignee will be required to continue
to carry out in perpetuity the conservation purposes that the contribution was originally. intended
to advance as set forth in the Recitals herein. The State, its successors or assigns, hereby
covenants and agrees that subsequent to any transfer as provided for herein, it will continue to
monitor and observe the Easement Area in perpetuity for such purposes set forth by this
Conservation Easement and Grant Agreement, and to report to the Fund any observed violations
on the Easement Area.
D. Existing Responsibilities of Grantor and State Not Affected. Other than as
specified herein, this Conservation Easement is not intended to impose any legal or other
responsibility on the State, or in any way to affect any existing obligation to the Grantor as
owner of the Property, which includes the Easement Area. Among other things, this shall apply
to:
1. Taxes. The Grantor shall continue to be solely responsible for payment of
all taxes and assessments levied against the Property. If the State is ever
required to pay any taxes or assessments on its interest in the Easement
Area, the Grantor will reimburse the State for the same.
2. Upkeep and Maintenance. The Grantor shall continue to be solely
responsible for the upkeep and maintenance of the Easement Area, to the
extent it may be required by law. The State shall have no obligation for
the upkeep or maintenance of the Easement Area.
., N~I~IN~1
3. Liability and Indemnification. If the State is ever required by a court to
pay damages resulting from personal injury or property damage that
occurs on the Easement Area, the Grantor shall indemnify and reimburse
the State for these payments, as well as reasonable attorneys' fees and
other expenses of defending itself, unless the State has committed a
deliberate act that is determined to be the sole cause of the injury or
damage.
E. Conservation Purpose.
Grantor and State, for themselves, their successors and assigns, agree 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 sea.
which authorizes the creation of conservation agreements for purposes
including those set forth in the Recitals herein, and the conservation
purposes of this Conservation Easement, including such purposes as are
defined in Section 170(h)(4)(A) of the Internal Revenue Code.
F. Recording. Grantor shall record this instrument and any amendment hereto in
timely fashion in the official records of Orange County, North Carolina, and may re-record it at
any time as may be required to preserve State's rights.
G. 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. All such items shall be deemed given or made three (3) days after being placed in the
United States mail as herein provided. In any case where the terms of this Conservation
Easement require the consent of any party, such consent shall be requested by written notice.
Such consent shall be deemed denied unless, within ninety (90) days after receipt of notice, a
written notice of approval and the reason therefore has been mailed to the party requesting
consent.
H. Amendments. Grantor and State, or their successors in interest in the Easement
Area, 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. Such
amendments} require the written consent of both Grantor and State and shall be effective upon
recording in the public records of Qrange County, North Carolina.
i. Environmental Condition of the Easement Area. The Grantor warrants,
represents and covenants to the State that to the best of its knowledge after appropriate inquiry
and investigation that: (a) 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; (b) as of the date hereof there are no hazardous materials, substances, wastes, or
environmentally regulated substances (including, without limitation, any materials containing
asbestos) located on, in or under the Easement Area or used in connection therewith; (c) that
there is no environmental condition existing on the Easement Area that may prohibit or impede
use of the Easement Area for the purposes set forth herein; and (4) the Grantor will not allow
such uses or conditions.
J. Indemnity. The Grantor agrees to the fullest extent permitted by law, to defend,
protect, indemnify and hold harmless the State 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 or of the use
or presence of hazardous substance, waste or other regulated material in, on or under the
property.
K. 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. The Parties hereto intend this document to be an
instrument executed under seal. If any party is an individual, partnership or limited liability
company, such party hereby adopts the word "SEAL" following his/her signature and the name
of the partnership or limited liability company as his/her/its legal seal. The Recitals set forth
above and the exhibits, if any, attached hereto are incorporated herein by reference.
L. 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. Further, this
Conservation Easement shall be construed to promote the purposes of the Act, which authorizes
the creation of conservation agreements for purposes including those set forth herein, and such
conservation purposes as are defined in Section 170(h) (4) (A) of the Code.
M. Parties. Every provision of this Conservation Easement that applies to the
Grantors or to the State shall likewise apply to their respective heirs, executors, administrators,
successors and assigns.
N. 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.
O. Subsequent Liens. No provisions of this Conservation Easement shall be
~im~i~un
construed as impairing the ability of Grantors to use this Easement Area for collateral for
borrowing purposes, provided that any mortgage or lien arising there from shall be subordinated
to this Conservation Easement. The Property owner shall not convey the Property or any interest
therein, and shall not incur, assume, or suffer to exist any lien upon or with respect to the Property
without disclosing to the prospective buyer the Conservation Easement and the obligations of the
Property owner and limitations on use of the Property.
P. Gender. The designations Grantor, State and Fund, as used herein shall include
the Parties, their heirs, administrators, successors and assigns, and shall include the singular,
plural, masculine, feminine or neuter as the context may require.
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 and State, by authority duly given, have hereunto
caused these presents to be executed in such form as to be binding, the day and year first above
written.
GRANTOR: SOCIATION THE PRESERVATION OF THE ENO RIVER
VALL N ~ ~ / ^
F.
ATTEST:
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Emily E. erbert, Secretary
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STATE OF NORTH CAROLINA
COUNTY OF ~ ~ ~I~w.,.
I, m . I!.(~g~ So~1,c,.~ a Notary Public of the County and State aforesaid, certify
that Holly F. eid, President, and Emily E. Herbert, Secretary, of the Board of Directors far the
Association for the Preservation of the Eno River Valley, Inc., personally came before me this
day, each acknowledging to me that she signed the foregoing document.
Witness my hand and notarial seal this the ~ day of August, 2008.
My commission expires: ~,,,,,,,,~ ~
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EXHIBIT A
"EXCEPTIONS TO TITLE"
1. Subject to matters shown on subdivision map recorded in Plat Book 103, Pages 16 and 17
and Plat Book l0 ,Page [:Orange County Registry.
2. Right of way for Highland Farm Road (SR 1332).
3. Right of Way Agreement with the State Highway Commission recorded in Book 209, Page
474, Orange County Registry.
4. Easement to Duke Power Company recorded in Book 105, Page 165, Orange County
Registry.
5. Right of the owner to the underlying fee simple policy to use the property in any way not
inconsistent with the terms of the Conservation Easement.