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Home My WebLink AboutORD-2010-095 - Budget Amendment #5-A - Purchase of a Conservation Easement – Mark & Lori Volpe09 -p- 01010- oq5 ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 14, 2010 Action Agenda Item No. SUBJECT: Resolution for Purchase of a Conservation Easement — Mark and Lori Volpe; and Approval of Budget Amendment # 5 -A DEPARTMENT: Environment, Agriculture, PUBLIC HEARING: (Y /N) No Parks and Recreation (DEAPR) ATTACHMENTS INFORMATION CONTACT: Resolution of Approval David Stancil, 245 -2510 Vicinity Map Rich Shaw, 245 -2514 Site Map Draft Conservation Easement PURPOSE: To consider a resolution to approve the purchase of a conservation easement in land owned by Mark and Lori Volpe to protect Eno River buffers and aquatic habitat and approval of Budget Amendment # 5 -A. BACKGROUND: The Lands Legacy Program, adopted in April 2000, works with landowners and other conservation partners to protect important natural and cultural resource lands in Orange County. Through this program, the County uses a variety of voluntary means to protect lands, including fee - simple acquisition, land donations, and purchase or donation of conservation easements. Since its inception, Lands Legacy has protected over 1,500 acres of prime farmland and riparian buffers with permanent conservation easements, and another 977 acres of important natural and cultural resource lands by other means. Mark and Lori Volpe own a 5,18 -acre parcel of land located north of Halls Mill Road (Cheeks Township). The Volpe property is entirely forested and has steep slopes leading down to the Eno River. It is adjacent to another 66 acres owned by the Volpes and includes their family residence. The Volpes intend to protect the 5.18 -acre property by granting a permanent conservation easement that would require that it remain "forever wild." The property has many conservation values that would benefit from an easement. It is located in the Upper Eno Protected Watershed, which the Lands Legacy Action Plan identifies as a priority area for conserving riparian buffers to protect drinking water quality and aquatic habitat. The land has 400 feet of Eno River frontage upstream of Corporation Lake and Lake Ben Johnson, which supply drinking water to residents of Efland and Hillsborough. This section of the Eno is also part of an Orange County Natural Heritage site (Eno Aquatic Habitat), recognized as nationally significant due to presence of rare and endangered species of fish and freshwater mussels. This project would expand on previous conservation efforts in this area known as the Eno Confluence. In 2004 the Volpes granted a conservation easement on a 24.5 -acre portion of 2 their property. In 2008 the Eno River Association purchased 179 acres for a nature preserve with assistance from the State of North Carolina and Orange County. The Eno River Association is speaking with other property owners interested in conserving their land. DEAPR Staff and the County Attorney are working with the Volpes to prepare an agreement that meets both their needs and the County's interests. The conservation easement would prohibit future subdivision and ensure that the property remain in its natural, forested condition. All future development rights would be extinguished except for an allowance for nature trails and one small shelter (gazebo). DEAPR staff would monitor the property on an annual basis, in conjunction with the previous easement granted by the Volpes. A copy of the draft easement is provided as an attachment. FINANCIAL IMPACT: Mr. and Ms. Volpe intend have agreed to "sell" the conservation easement to Orange County for the appraised value of $26,000. The estimated cost to the County would be $26,000 plus another $5,000 for transaction costs (appraisal, title search and closing fees). DEAPR is awaiting a decision by the City of Raleigh to contribute up to $5,200 for the project through the Upper Neuse Clean Water Initiative - a program that provides matching funds for projects that will help protect water draining to Falls Lake. Those funds were requested by the Eno River Association. The total cost to the County would be $31,000, up to $5,200 of which would be reimbursed in early 2011 if funds are awarded by the City of Raleigh. The County funds would come from existing funds budgeted in the Lands Legacy Conservation Easement Fund, approved by the Board of Commissioners in FY 2002 -03 and previously appropriated. The conservation easement would diminish the overall market value of the Volpe land holdings by an estimated $26,000 as determined by a recent conservation easement appraisal. Budget Amendment # 5 -A increases the project budget by $31,000 from existing funds in the Conservation Easement Project. Conservation Easements: Project # 20006 Revenues for this proiect: Appropriated for this proiect: Through FY 2009 -10 FY2010 -11 Amendments Dec. 14, 2010 Amendment FY 2010 -11 Revised Sales Tax & Dedicated Property Tax $350,000 $350,000 Private Placement 3,000,000 $31,000 3,000,000 Grant Funds 3,547,707 $322,000 3,869,707 Transfer from Lands Legacy Ca ital Project 143,000 143,000 Total Project Funding $7,040,707 $322,000 0 $7,362,707 Appropriated for this proiect: Through FY 2009 -10 Prior Years Amendment Dec. 14, 2010 Amendment FY 2010 -11 Revised Walters Easement $725,000 $725,000 Volpe Easement 73,100 $31,000 104,100 Cheek Easement 580,000 580,000 McPherson Easement 68,000 68,000 Ward Easement 444,750 444,750 Lloyd Easement 219,000 219,000 Keith Easement 116,000 116,000 Fickle Creek Farm Easement 277,658 277,658 McKee Easement 612,000 612,000 Latta Easement 601,400 601,400 Tate Easement 333,750 333,750 Lee Farm Easement 306,250 306,250 Breeze Farm Easement 450,000 $522,000 952,000 Underwood Easement 2,620 2,620 Unallocated 2,231,179 180,000 31.000 2,020,179 Total Land/Building $6,143,957 $322,000 $7,362,707 Total Costs $7,040,707 $322,000 0 $7,362,707 RECOMMENDATIONS: The Manager recommends that the Board: 1) adopt the resolution approving the acceptance by Orange County of the conservation easement and authorizing the Chair and the Clerk to sign the conservation easement agreement, subject to final review by staff and County Attorney, with a closing and recordation of the document expected to occur on or about December 31, 2010; and 2) approve Budget Amendment # 5 -A. ~2~~- a~~o- oq ~ ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Conservation Easement between Orange County and Mark and Lori Volpe WHEREAS, Orange County has adopted goals that promote the preservation of natural areas, wildlife habitat, farmland and open space in the County; and WHEREAS, Orange County established the Lands Legacy Program for the purpose of protecting the most significant natural and cultural resources through partnerships with landowners and other conservation entities; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on lands that include natural areas, wildlife habitat and riparian buffers within water supply watersheds; and WHEREAS, Mark and Lori Volpe own 71 acres located within the Upper Eno Protected Watershed; and WHEREAS, Mark and Lori Volpe wish to protect a 5.18-acre portion of their property that has 400 feet of frontage along a section of the Eno River that has aquatic habitat of national significance and is located upstream of two public water supply reservoirs; and WHEREAS, Mark and Lori Volpe wish to grant a permanent conservation easement to Orange County, which will protect the natural resources associated with their property: NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the conservation easement in the property owned by Mark and Lori Volpe that is described in the conservation easement agreement; 2) approve the execution of this conservation easement agreement with Mark and Lori Volpe, in accordance with the terms of the attached easement agreement, subject to final review by staff and the county attorney; and 3) authorize the Chair and the Clerk to sign the easement agreement on behalf of the Board, with a closing to occur on or about December 31, 2010. BE IT FURTHER RESOLVED that the Board thanks the Volpes for their civic-minded interest in pursuing this conservation easement through the Lands Legacy Program. This the 14th day of December, 2010. Bernadette Pelissier, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board yC% 5 2 West Fork Lake Eno-River Orange Reservoir z y�c y�Al HALLS MILL AR ONY CH D 0 �Q lA O J Z a J � = LEBANON D Y a+ x, T r v v o Corporation l m Lake io v us VS'O HILLSBOROUGH FORR S 185 Volpe property Location Map ®Conservation easement held byothers Volpe Property r Conservation easement held by Orange County 5,18 acres Orange County parkland and open space 0 1,200 2,400 4,800 Feet 0 Non-county parkland&open space - Duke Forest Major streams orange County Dept.of Environment,Agriculture, .Streets Parks and Recreation " M Jones 11/&2010 Towns .,�� o,,.• Ole y +,. *' t� P �4 •: ua P'' d x E x ,� Waar v tt\ . Z Olt ob sR s�:rY '1ti .,a,y^a r��",i�� t k 'i► .' 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I t rjr P r residential. k parcel`:. A }\3` k r'',� a t� ► a �' "''i pt ;4ti -Aw a z Ilk -A p. '.jai P> k° 4k.� j ., y ` V o "xt a Hall s Mill Site a ter, rrrr 4 ,4M .y 'X'E�- "a e'er 4 •' ti .._* \a►. 3 �4 t, k'4: .s.,P yv�r `Fv \ ti k AreA-Ys*F C s t . .� �� s 'i � ia 's'�• • iit 2 f+�� ` '�E"x p.. 1 {a ,k �s��-� � 'f '_` ,� ��f�� r'Et*�t�.t��:� �� - � t�ay � ?',�" � Cj� � � �'. �'' 6 �a; �r i, � ti s� s ("'"• . yi 1 A ` t t Ilk : * k\4 j?;drR key. +,. t� ,^ i 9 .!'i+. t, 6..� y -,fir ,Y \l "q y�'� ,�•.. ;e `� �.,. �ny_F?• rT ' �1r ,�Ttr 0, R mx :01, t l N t'#^.' `t41►'r.,r �" $,�s ,�..1' �'py. t �.. Y1.,,`. i(.: �y u t�,.c� ry +i•.; 7 #y h l rt f { t �a IL, ; �;< �, av ?''si►,..a'�:`a1`.,ilg'��Y�- �i. i ,1� � .(" r i +d� \" h f �a�. �.w r °a. °\« ��a ,+ ,�, F � y®1 \ iC ,. � i � � k `R �' � �. t + F �A�t� �i"� \,�E S��y,P•iF+�'�'•' ,� t7 t t 1 +' AY�1 re'; i • •, JK W, -r� �.. 'D ?til� �'S }, i\ 4 �, � ��.. ,� .\,,`..�•� .� atir '�. '1-, ��.� ;j';?\'� .�v, �Y� �v�'.+. }�`Y 1>', �rt . u«�� • •�♦x' � r .•.�*,\�(,� '�' �� -" �i`�ra�'}4se �.�y�{ ` 1` �t{ y��+y 't� )`��i' 1 ��t 1 � F.''�' e� Y `4T ��.' � � ','oel E� 1 �'� �` y�,�. "�'•!.Y �� e'� �'g`*��`�th�a ]4. ',: .r,� s,,��,t'�.� w!•E# � -.��# �� #.1 Y..� r �;�at'�tY�.,"a \M�t a.4t,pslc:" 14� F ,� � .- FR Location Map Volpe Property ® Proposed conservation easement 5.18 acres 0 155 310 620 Feet Volpe property(66.2 acres) I l l l l l l l l Conservation easement held by Orange County Orange County Parcel boundary Dept of Environment,Agriculture, Parks and Recreation 2008 orthophoto MJones 11/4(2010 Volpe Conservation Easement (South) 7 Draft 11/19110 This instrument prepared by and return to: John L. Roberts, Office of the Orange County Attorney Box 8181, 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 , 2010 by MARK VOLPE and LORI ANNE VOLPE, husband and wife, having an address at 1717 Halls Mill Road, Hillsborough, NC 27278 (hereinafter "Grantors ") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee" or "the Grantee "). The designation Grantors and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantors are the sole owners in fee simple of certain real property located in Cheeks Township, Orange County, North Carolina, and described on Exhibit A hereto, which is incorporated herein by reference. The tract of land comprises approximately 5.18 acres, and is hereinafter referred to as "the Easement Area." The Easement Area includes no buildings or other improvements, which is shown on Exhibit C, attached hereto and incorporated herein. B. The Grantee is a body politic and corporate, a political subdivision of the State of North Carolina, with powers prescribed in Chapter 153A of the North Carolina General Statutes. C. To the extent practicable, the Grantors and Grantee wish to maintain the Easement Area as a combination of woodland and open space suitable as habitat for the native Page 1 of 16 8 Volpe Conservation Easement (South) Draft 11/19110 flora and fauna of the North Carolina Piedmont, and to protect the quality of water running off from this 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 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 and Lake Ben Johnson reservoirs. Another primary purpose of this Easement is to protect the undeveloped nature of the Grantors' Easement Area 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 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 northern Cheeks Township. The natural habitat of the Easement Area, and its contribution to the protection of the public water supply watershed, as well as the open space and rural character of Cheeks Township are collectively referred to as the "conservation values" of the Easement Area The Grantors 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 Page 2 of 16 Volpe Conservation Easement (South) 0 Draft 11/19/10 (2) the Land Use Element of the Orange County Comprehensive Plan (adopted November 18, 2008) with its goal of "Land uses that are appropriate to on -site environmental conditions and features, and that protect natural resources, cultural resources, and community character." (3) 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 (4) NCGS § 139 -2 et seq., which provides that "it is hereby declared ...that the farm, forest and grazing lands of the State of North 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 North Carolina Conservation Tax Credit Program, authorized by NCGS § 105- 130.34 and 105- 151.12 et seq., which provides for state income tax credits for donations of land that are useful for fish and wildlife conservation and other similar land conservation purposes; and (8) 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 (9) the Soil and Water Conservation Districts Act, authorized by NCGS § 139 -1, et seq., which provides for the preservation of farm, forest and grazing lands; and (10) the special use assessment of farm and forestland as set forth in NCGS § 105 -277.2 et seq., which allows for lower property tax rates for land enrolled in active agricultural uses. D. The 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 Page 3 of 16 10 Volpe Conservation Easement (South) Draft 11/19110 the Volpe Conservation Easement," dated December 2010 (hereafter "the Baseline Report") prepared by Orange County DEAPR for the Grantors, of which a summary is attached as Exhibit B to this Conservation Easement. The Grantor worked with the Grantee to ensure that the report is a complete and accurate description of the Easement Area as of the date of this Conservation Easement. It will be used by the Grantors and Grantee to assure that any future changes in the use of the Easement Area will be consistent with the terms of this Conservation Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the present condition of the Easement Area if there is a question about its use. E. The Grantors and Grantee have the common purpose of conserving the above - described conservation values of the Easement Area in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121 -34 et seq., and G.S. § 153A -176 and G.S. § 160A -266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses," and which provide for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvements less any reduction in value caused by the agreement"; and the Grantors and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, the Grantors, for and 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, Grantors convey 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_ Page 4 of 16 11 Volpe Conservation Easement (South) Draft 11 /19110 Grantors 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 Grantors to take any action to restore the condition of the Easement Area after any act of nature or other event over which Grantors had no control. Grantors understand that nothing in this Conservation Easement relieves her of any obligation or restriction on the use of the Easement Area imposed by law. 2. PROPERTY USES. Any activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantors and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantors are set forth in Paragraph 3 below. 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 fixture conveyance of the fee simple interest in the Easement Area shall be subject to this Conservation Easement. Grantors agree for themselves, their successors and assigns, that in the event they transfer the Easement Area, such transfer is subject to the Grantee's right of ingress, egress, and regress over and across the Easement Area for the purposes set forth herein. 2.2 Construction. No permanent structures exist on the Easement Area at the time of this Conservation Easement, The Grantors' reserve the right to construct or reconstruct new structures and other improvements described in subparagraphs (a) through (c) 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 — Any existing fences may be repaired and replaced, and new fences may be built on the Easement Area to identify property boundaries without any further permission of Grantee. (b) New Structures and Improvements — Grantors have the right to construct one (1) gazebo with a footprint containing no more than 100 square feet and no more than two (2) benches within the Easement Area. No other Page 5 of 16 Volpe Conservation Easement (South) 12 Draft 11/19110 structures may be placed or constructed on the Easement Area. Furthermore, there shall be no constructing or placing of any outdoor lighting, utility pole, utility tower, conduit or line on or above the Easement Area (c) Pedestrian Trails — Pedestrian trails may be constructed as long as such trails be of a natural surface, not be more than six feet (6') wide, and located at a minimum distance of thirty (3 0) feet from the top of the bank of the Eno River. 2.3 Utility Services and Septic Systems. Maintenance, repair or improvement of electric, gas, and water facilities, sewer lines and/or other public or private utilities, including telephone or other communication services, that exist on the Easement Area at the time of this Conservation Easement is permitted. All other utilities are prohibited on the Easement Area. 2.4 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and horticultural uses of the Easement Area is prohibited 2.5 Timber Harvesting and Forest Management. Commercial timbering of trees within the Easement Area is prohibited. Trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, to remove non- native species, or to salvage wind - thrown timber, including construction of permitted improvements and fences on the Easement Area. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction of non -native animals, or disturbance or change in the natural habitat in any manner. All forest management activities must be pursuant to a written 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 Grantors. 2.6 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantors shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Easement Area, including, but not limited to, hiking, picnicking, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land. Grantors reserve the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Easement Area, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation values of the Easement Area. Page 6 of 16 13 Volpe Conservation Easement (South) Draft 11/19/10 2.7 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the improvements permitted herein, b) the maintenance of 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 Destruction of Plants. Grantors shall have the right to cut and remove diseased trees, shrubs, or other plants, to cut and remove invasive (usually non - native) trees, shrubs and other plants, and to cut firebreaks. Grantors shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction of non -native animals, or disturbance or change in the natural habitat in any manner. 2.9 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Easement Area that would be detrimental to water purity or, except as specified herein, that could alter the natural water level or flow in or over the Easement Area. There shall be no alteration, depletion or extraction of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies on the Easement Area. Diking, draining, filling or removal of wetlands is prohibited. 2.10 Signage. No signs or billboards or other advertising displays are allowed on the Easement Area except as otherwise permitted herein and as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not diminish the scenic character of the Easement Area may be displayed to identify the conservation values of the Easement Area, to identify the Conservation Easement, to give directions, to advertise or regulate permitted uses on the Easement Area and prescribe rules and regulations for educational use of the Easement Area, to advertise the Easement Area for sale or rent, to post the Easement Area against trespassers, and to identify the Grantor as fee simple owner of the Easement Area, and to identify the Grantee as holder of the Conservation Easement. 2.11 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by Grantee to control invasive species detrimental to the conservation values of the Easement Area. 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 Page 7of16 Volpe Conservation Easement (South) 14 Draft 11/19/10 spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2.13 Predator Control. Grantors shall have the right to control, destroy,• or trap predatory and problem animals that pose a material threat to humans by means and methods with 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. Grantors convey 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 Grantors retain the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Easement Area not prohibited by this Conservation Easement. Prior to making any change in use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. This determination by Grantee shall be made in writing. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is subject to the terms of this Conservation Easement. 4. . GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the purposes of this Conservation Easement, the following rights are granted to Grantee and the following responsibilities are reserved to Grantee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after reasonable advance notice to Grantors 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 Grantors, their representatives, assigns, heirs and successors are complying with the Page 8of16 Volpe Conservation Easement (South) 15 Draft 11/19110 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 Grantors. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantor or at Grantors' direction or with Grantors' 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 Grantors prior to implementing any such control activities. 5. RESPONSIBILITIES OF GRANTORS AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantors, or in any way to affect any existing obligation of the Grantors as owners of the Easement Area. Among other things, this means: (a) Taxes — The Grantors 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 Grantors will reimburse Grantee for the same. (b) Upkeep and Maintenance — The Grantors 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. Grantors will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Easement Area. (c) Liability and Indemnification — Grantors agree 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, Grantors agree 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 that Grantee is and will remain a named insured on Easement Area insurance policies covering the Easement Area. Grantors shall provide Grantee Page 9of16 16 Volpe Conservation Easement (South) Draft 11 /19110 with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 6. ACCESS. No right of access by the general public to any portion of the Easement Area is conveyed by this Conservation Easement. However, the public has the right to view the Easement Area from adjacent publicly accessible areas such as public roads and waterways. 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. (a) With reasonable advance notice provided to the Grantors or with the Grantor's prior verbal consent, the Grantee shall have the right to enter the Easement Area for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the .terms of this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the conservation values of the Easement Area, the Grantee shall give the Grantor written notice of the violation and thirty (3 0) 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 Grantors 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 Grantors 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 Grantors for any injury or change to the Easement Area caused by third parties, or resulting from causes beyond the Grantors' control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantors 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. 8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer, assign, convey, or otherwise to co -hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified Page 10 of 16 17 Volpe Conservation Easement (South) Draft 11/19110 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. The Association for the Preservation of the Eno River Valley, Inc. has agreed to serve as back -up easement holder if the Grantee were no longer in a position to hold the conservation easement. 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. The Grantors agree 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 Grantors 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 Grantors 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 Grantors 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. Grantors 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 TERNIINATION 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 Grantors and the Grantee, terminate or modify the Conservation Easement created by this Deed in accordance with applicable State law. If the Conservation Easement is terminated and the Easement Area is sold, then as required by Section 1.1 70A- 14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to Grantors, 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 Grantors and the Grantee shall be paid out of any recovered proceeds prior to distribution of the Page 11 of 16 Volpe Conservation Easement (South) net proceeds as described herein. 18 Draft 11/19/10 12. PROCEDURE IN THE EVENT OF CONDEMNATION OR EMINENT DOMAIN. Grantors 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. Grantors 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 Grantors), 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 Grantors 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 Grantors covenant and represent that they are the sole owners and seized of Easement Area in fee simple and have good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages not subordinated to this Page 12 of 16 Volpe Conservation Easement (South) 19 Draft 11/19/10 - Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, subject to any easements or encumbrances of record. 15. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantors and Grantee, respectively, at the following addresses, unless a parry has been notified by the other of a change of address. To the Grantors: Mark and Lori Volpe 1717 Halls Mill Road Hillsborough, NC 27278 To the Grantee: Orange County Dept. of Environment, Agriculture, Parks and Recreation Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 16. ENVIRONMENTAL CONDITION. The Grantors warrant that they have 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 Grantors 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 Grantors 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. EXIIIBITS AND DOCUMENTATION. Page 13 of 16 Volpe Conservation Easement (South) Mc Draft 11119110 (a) Baseline Documentation Report. The parties acknowledge that the Baseline Documentation Report, a copy of which is on file at the offices of the Grantee, accurately establishes the uses, structures, conservation values and condition of the protected Easement Area as of the date hereof. A summary is attached as Exhibit B. (b) Future Construction. Exhibit C is a GIS map and sketch showing the configuration of the property owned by the Grantors. 23. ENTIRE AGREEMENT. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings or agreements relating to the Conservation Easement. If any provision is found to be invalid, the remainder of the provisions of this Conservation Easement, and the application of such provision to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby. 24. ACCEPTANCE AND EFFECTIVE DATE. As attested by the Clerk of the Grantee and the signature of its authorized representative affixed hereto, the Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Conservation Easement. This Conservation Easement is to be effective the date recorded in the Orange County Registry of Deeds. TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee its successors and assigns, forever. [The remainder of this page is intentionally left blank. Signature page follows.] Page 14 of 16 Volpe Conservation Easement (South) Draft 11/19/10 IN WITNES S WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above. Accepted: ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners GRANTORS: Mark Volpe Lori Anne Volpe GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Valerie Foushee, Chair Orange County Board of Commissioners Page 15 of 16 21 Volpe Conservation Easement (South) 22 Acknowledgments NORTH CAROLINA COUNTY OF ORANGE Draft 11/19110 I, , a Notary Public in and for said County and State do hereby certify that and personally appeared before me this day and duly acknowledged the execution of the foregone Conservation Easement. Witness my hand and official stamp or seal this the day of , 2010. , Notary Public (Notary's printed or typed name) My commission expires: NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the day of , 2010. Notary Public (Notary's printed or typed name) My commission expires: Page 16 of 16