HomeMy WebLinkAboutS Warranty Deed of Conservation Easement Eno Confluence PropertyThis instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hargrave & Peek, P.C.,
P.O. Drawer 1529, Hillsborough, NC 27278
NORTH CAROLINA
COUNTY OF ORANGE
WARRANTY DEED OF
CONSERVATION EASEMENT
This Deed of Conservation Easement (hereinafter "Conservation Easement") is made on this
day of , 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 COiTNTY,
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 9856-36-
2947). The Easement Area includes. improvements, which are shown on 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 of fish, 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 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 maybe
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 Basement 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 maybe repaired and replaced, and new fences
may be 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 Agricultural 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 Mana e~ 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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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 be no additional removal,
harvesting, destruction or cutting of native trees, shrubs or other plants. Furthermore, except to
accommodate the activities expressly permitted in this easement, there shall be no use of
fertilizers, plowing, introduction 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.ofthe improvements permitted herein, b) the maintenance of hiking trails permitted
herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal
ecosystems native to the locality.
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 maybe 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 maybe 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 law. 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 property damage; and warrant xhat Grantee is and will remain a named insured on
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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 maybe 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.
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8. 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 Code, as amended and under NCGS 121-34 et
seq., provided the agency or organization expressly agrees to assume the responsibility imposed
on Grantee by this Deed. If the Grantee ever ceases to exist or no longer qualifies under Section
170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall
transfer this Conservation Easement to another qualified organization having 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.
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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 betaken, 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
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
(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
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.
By:
Holly F. R ' ,Pre ' ent
ATTEST:
Emily E. H Bert, Secretary
Accepted:
GRANTEE:
ORAN(~OUNTY, NORT CAROL A
By:
Barry Jacobs, ~ it
Orange Co Bo f C 'ssioners
ATTEST: r, ~ n „ ,~
... .... -
nna S. Baker, Clerk to e,r` ` ~ ;.>
Board of Commission ~(.~~j= ;;
~r
ns
~~ far
Page 15 of 20
Acknowledgments
NORTH CAROLINA
COUNTY OF ~ ~ ~ ~ w~
I ~,, ~ mod. ~•-. 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 dL+o~e.r-' , 2008.
r JCjN JOR„N
~s~~'o'~ARy "~i
My commission expires:
U
2
4G pU g~~G,~. ~r
v~
..... M C ......
11 ')5 -loll
NORTH CAROLINA
COUNTY OF ORANGE
Notary ub c
Print name:K-) ~g~-, ~~ `~
I An~~lc~ I h~~~5c~- ~Cd~~e-~~ , 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 ~ sa day of ~~'~~~~cr , 2008.
,,`f~' , ~ ~~~'
~' ~` Notary Pu is
My commission expires:
/ - l ~- o~ U / 3 ~~ ~ ~'KET~
My comn-tssion~M~t l .~ b f ~j
Page 16 of 20
EXHIBIT A
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 property and Orange County will be granted an easement on the entirety of the property.
The topography of the. properly 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 michauxxi), with eastern
red cedar (Juniperus virginiana), Virginia pine (Pious virginiana), and shortleaf pine (Pious
echinata) found fiuther 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 iS significant evidence of
human disturbance throughout the property. Located on the upland asst 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
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.
Significant 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
Legend
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Exhibit B
Orange County Conservation Easement
Confluence Property (110.42 acres)
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EXHIBIT C
EXCEPTIONS TO TITLE
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.
Conservation Easement to the State of North Carolina recorded in Book 4591, Page 525,
Orange County Registry.
Page 20 of 20