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HomeMy WebLinkAboutS Conservation Easement Joseph Phelps Prepared by: D. Michael Parker Return to: Joseph Phelps, 2504 Hardwood Drive, Hillsborough, NC 27278 PIN # 9847-24-2967 TAX MAP # 2 .40 . . 15 CONSERVATION EASEMENT This CONSERVATION EASEMENT made this day of , 2002 by and between JOSEPH PHELPS (UNMARRIED) , 2504 Hardwood Drive, Hillsborough, NC 27278, and OLD MILL, INC. , parties of the first part, (hereinafter referred to as the "Grantors") and ORANGE COUNTY, party of the second part, (hereinafter referred to as the "Grantee") . WITNESSETH: WHEREAS, Grantors are the current owners in fee simple of certain real property more particularly described in Exhibit A attached, (the "Protected Property") ; WHEREAS, Grantee is a North Carolina non-profit unincorporated association, consisting of all of the owner of the lots within the Bricewood Acres subdivision as shown on plat recorded in plat book page of the Orange County Registry; WHEREAS, the Protected Property is a "stream buffer" as the same is defined pursuant to the Orange County (North Carolina) Zoning Ordinance; and WHEREAS, Grantors and Grantee have the common purpose of conserving the Protected Property in accordance with the provisions of the Orange County Zoning Ordinance for stream buffers in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to North Carolina General Statutes §121-34 et sea; and WHEREAS, Grantors intend, as owner of the Protected Property, to convey to Grantee the right to preserve and protect the Protected Property in accordance with the provisions of the Orange County Zoning Ordinance for stream buffers in perpetuity; and WHEREAS, Grantee intends to accept this grant to honor the intentions of Grantor stated herein and to preserve and protect the Protected Property in accordance with the provisions of the Orange County Zoning Ordinance for stream buffers in perpetuity for the benefit of this generation and the generations to come. NOW, THEREFORE, Grantors, for and in consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby give, grant, bargain, sell and convey unto Grantee a Conservation Easement in perpetuity over the Protected Property of the nature and character as follows : 1 . Purpose. The purpose of this Conservation Easement is to ensure that the Protected Property will be retained, preserved and protected in accordance with the provisions of the Orange County Zoning ordinance for stream buffers in perpetuity for the benefit of this generation and the generations to come forever and to prevent any use of the Protected Property that will significantly impair or interfere with the conservation values or interests of the Protected Property' described above. Grantors intend that this Conservation Easement will restrict the use of the Protected Property to only such activities as are consistent with the purpose of this Conservation Easement and the provisions of the Orange County Zoning Ordinance for the preservation and protection of stream buffers . 2 . Prohibited Uses . Any activity on or use of the Protected Property inconsistent with the purpose of this Conservation Easement and the provisions of the Orange County Zoning Ordinance for the protection of stream buffers is prohibited. 3 . Grantor's Reserved Rights. Grantors hereby reserve the following rights : - 3 . 1 Existing Uses . To undertake or continue any activity or use of the Protected Property not prohibited by this Conservation Easement or the provision of the Orange County Zoning Ordinance for the protection and preservation of stream buffers . 3 .2 Transfer. To sell, give, mortgage, lease or otherwise convey the Protected Property provided such conveyance is subject to the terms of this Conservation Easement . 3 .4 Game Manacrement . To eliminate exotics (starlings etc. ) and reduce populations of native species that threaten the ecosystem under a prescribed plan approved by the N.C. Natural Heritage Program or the N.C. Division of Wildlife Resources and with prior written approval of Grantee pursuant to paragraph 4 .5 below. 4 . Grantee' s Rights . To accomplish the purpose of this Conservation Easement, the following rights are conveyed to Grantee by this Conservation Easement : 4 . 1 Right to - Protect. To preserve and protect the conservation values of the Protected Property. 4 . 2 Right of Entrv. To enter the Protected Property at all reasonable times and with prior notice, subject to the Notice provisions contained herein, and, if necessary, across other lands retained by Grantors, for the purposes of : (a) inspecting the Protected Property to determine if Grantors and his heirs, successors and assigns in title are complying with the covenants and purposes of this Conservation Easement; (b) enforcing the terms of this Conservation Easement; (c) taking any and all actions with respect to the Protected Property as may be necessary or appropriate, with or without order of court, to remedy or abate violations hereof; (d) making scientific and educational observations and studies and taking samples in such a manner as will not disturb the quiet enjoyment of the Protected Property by Grantors; and (e) monitoring and management as described below. 4 .3 Monitoring and Management . The right, but not the obligation, to monitor the condition of the plant and animal populations, plant communities, and natural habitats on the Protected Property, and to manage them, to the extent deemed appropriate by Grantee, to ensure their continued presence and viability on the Protected Property. 4 .4 Easement . To prevent any activity on or use of the Protected Property that is inconsistent with the purpose of this Conservation Easement and to require the restoration of such areas or features of the Protected Property that may be damaged by any inconsistent activity or use, pursuant to paragraph 9 . 4 .5 Discretionary Consent . Grantee' s consent for activities otherwise prohibited under paragraph 2, above, or for any activities requiring Grantee' s consent under paragraph 2 or 3 above, may be given under the following conditions and circumstances . If, owing to unforeseen or changed circumstances, any of the activities listed in paragraph 2 (and to the extent applicable, paragraph 3) are deemed desirable by both Grantors and Grantee, Grantee may, in its sole discretion, give permission for such activities, subject to the limitations herein. Such requests for permission, and permission for activities requiring Grantee' s consent under paragraph, 2 or 3, shall be in writing and shall describe the proposed activity in sufficient detail to allow Grantee to judge the consistency of the proposed activity with the purpose of this Conservation Easement . Grantee may give its permission only if it determines, in its sole discretion, that such activities (1) do not violate the purpose of this Conservation Easement and (2) either enhance or do not impair any significant conservation interests associated with the Protected Property. Notwithstanding the foregoing, Grantee and Grantors have no right or power to agree to any activities that would result in the termination of this Conservation Easement, violation of the Orange County Zoning Ordinance or to allow any residential, commercial or industrial structures or any residential, commercial or industrial activities not provided for above. 4 . 6 Conveyance of Develoipment Rights . Grantors convey to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent nt in the Protected Property which are inconsistent with the terms of this Conservation Easement and the Orange County Zoning Ordinance, and the parties agree that such rights are terminated and extinguished, and may not be used on or transferred to any portion of the Protected Property, as it is now or hereafter may be bounded or described, or to any other property adjacent or otherwise. Provided, however, this provision shall not be construed to prohibit the modification or alteration of lots lines for the lots within Bricewood Acres Subdivision, provided such modification or alteration of lot lines is consistent with all applicable provisions of the Orange County Subdivision Regulations and the Orange County Zoning Ordinance. 5 . Costs and Liabilities. Grantee shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of the * Protected Property. Grantee shall hold harmless, indemnify, and defend Grantors, its officials, employees, agents and contractors and the heirs successors and assigns of each of them (collectively "Indemnified Parties" from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including without limitation, reasonable attorneys, fees, arising from or in any way connected with: (1) injury to or death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Protected Property to third persons other than invitees of the Grantors, regardless of cause, unless due solely to the negligence of the Grantors; (2) the obligations specified in this paragraph, and in paragraph 6; and (3) the existence or administration of this Conservation Easement . 6 . Taxes . Grantors shall pay before delinquent any real estate taxes or other assessments levied on the Protected Property and shall furnish Grantee with satisfactory evidence of payment upon request . When and if the Grantors convey any of the lots within the Bricewood Subdivision encumbered by this conservation easement, then and in said event, the subsequent owner of the lot subject to this Conservation Easement shall pay before delinquent any real estate taxes or other assessments levied on the Protected Property - and shall furnish Grantee with satisfactory evidence of payment upon request . If Grantors become delinquent in payment of taxes or assessments, so that a lien is created against the Protected Property, Grantee, at its option, shall, after written notice to Grantors, have the right to but not the obligation to, pay any such taxes or assessments in order to discharge the lien or delinquent taxes or assessments, or to take such other actions as may be necessary to protect Grantee' s interest in the Protected Property and to assure the continued enforceability of this Conservation Easement . Any such payment made by Grantee shall be a cost to Grantors pursuant to paragraph 5 and shall bear interest at the legal rate for unpaid property taxes until paid by Grantors to Grantee. 7 . Title. Grantors covenant and represent that Grantors are the sole owner and are seized of the Protected Property in fee simple and have good right to grant and convey this Conservation Easement; that the Protected Property is free and clear of any and all encumbrances, including but not and limited to, any mortgages not subordinated to this Conservation Easement, and that Grantee shall have the use of and-enjoy all of the benefits derived from and arising out of this Conservation Easement . 8 . Hazardous Waste. Grantors covenant and warrant to Grantee that Grantors have no knowledge of the existence of hazardous substances or toxic waste on the Protected Property and have no knowledge that hazardous substances or toxic waste have been generated, treated, stored, used, disposed of, or deposited in or on the Protected Property, and have no knowledge of the existence of any underground storage tanks on the Protected Property. 9 . Grantee' s Right to Inspect and Remedies . If Grantee has reasonable grounds upon which to suspect that a violation of the terms of this Conservation Easement has occurred, Grantee shall give notice to Grantors, at Grantors' s last known post office address, of its desire to inspect the Protected Property or any specific portion thereof via certified mail, return receipt requested. Within thirty (30) days of receipt of said notice, Grantors shall provide the Grantee with access to the Protected Property at a reasonable time or times for the purpose of inspecting to determine if a violation of the terms of this Conservation Easement has occurred. If a violation of the terms of this Conservation Easement occurs, Grantee shall give notice to Grantors, at Grantors' s last known post office address, of such violation via certified mail, return receipt requested, and request corrective action sufficient to abate such violation and restore the Protected Property to its previous condition at the time of this grant. Failure by Grantors to abate the violation and take such other corrective action as may be requested by Grantee within sixty (60) days after receipt of such notice shall entitle Grantee to bring an action at law or equity in a court of competent jurisdiction to enforce the terms of this Conservation Easement; to require the restoration of the Protected Property to its previous condition; to seek to enjoin the noncompliance by ex parte temporary or permanent injunction in a court of competent jurisdiction; and to recover any damages, arising from the noncompliance. Grantors agree that Grantee' s remedies at law for any violation of the terms of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this paragraph, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies . Grantee' s remedies described in this paragraph are cumulative and in addition to all remedies now or hereafter existing at law or in equity. Damages, when recovered, may be applied by Grantee, in its sole discretion, to corrective action on the Protected Property. Any costs incurred by Grantee in enforcing the terms of this Conservation Easement against Grantors, including, without limitation, costs of suit and attorneys, fees, and any costs of restoration necessitated by Grantors' s violation of the terms of this Conservation Easement shall be borne by Grantors . If Grantors prevail in any action to enforce the terms of this Conservation Easement, Grantors' s cost of suit, including, without limitation, attorneys' fees, shall be borne by Grantee . 9 . 1 Emergency Enforcement . If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conservation values of the Protected Property, Grantee may pursue its remedies under this paragraph without prior notice to Grantors or without waiting for the period for cure to expire. In that event, the provisions of paragraph 9 related to the costs of enforcement shall not apply. 9 .2 Failure to Act or Delay. Grantee does not waive or forfeit the right to take action as may be necessary to ensure compliance with this Conservation Easement by any prior failure to act and Grantors hereby waive any defenses of waiver, estoppel or laches with respect to any failure to act or delay by Grantee, its successors or assigns, in action to enforce any restriction or exercise any rights under this Conservation Easement . 9 .3 Violations Due to Causes Beyond Grantors' s Control . Nothing hereby shall be construed to entitle Grantee to institute any enforcement proceedings against Grantors for any changes to the Protected Property due to causes beyond Grantors' s control, such as changes caused by fire, flood, storm, earthquake or the unauthorized wrongful acts of third persons . In the event of violations of this Conservation Easement caused by the unauthorized wrongful acts of third persons, Grantors agree, upon request by Grantee, to assign its right of action to Grantee, to join in any suit, or to appoint Grantee its attorney-in-fact for the purposes of pursuing enforcement action, all at the election of Grantee. 9 .4 Rights of Orange County and others to Enforce . Nothing set forth herein shall be construed to limit, restrict, prohibit or otherwise encumber the rights of enforcement of Orange County or any applicable state or federal agency to enforce any applicable zoning restrictions for stream buffers or any applicable law or regulation for the protection of watersheds; which rights shall be cumulative to those set forth herein. 10 . Parties Subject to Easement. The covenants agreed to and the terms, conditions, and restrictions imposed by this grant shall be binding upon Grantors and Grantors' s lessees, agents, personal representatives, successors and assigns, and all other successors in interest, to Grantors and will continue as a servitude running in perpetuity with the Protected Property. 11 . Subsequent Transfers . Grantors agree that the terms, conditions, restrictions and purposes of this grant or reference thereto will be binding upon the Grantees in any subsequent deed or other legal instrument by which Grantors divest either the fee simple title or a possessory interest in the Protected Property whether such rights are set forth in such deed or other legal instrument or not . 12 . Merger. Grantors and Grantee agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Protected Property. 13 . Assignment. The parties hereto recognize and agree that the benefits of this easement are in gross and assignable, and Grantee hereby covenants and agrees that if it transfers or assigns the easement it holds under this indenture, the terms of the transfer or assignment will be such that the transferee or assignee will be required to 'continue to carry out in perpetuity the conservation purposes that the contribution was originally intended to advance. 14 . Extinguishment. Grantors hereby agree that, at the time of the conveyance of this Conservation Easement to Grantee, this Conservation Easement gives rise to a real property right, immediately vested in Grantee, with a fair market value of the Conservation Easement as of the date of the conveyance that is at least equal to the proportionate value that this Conservation Easement at the time of the conveyance bears to the fair market value of the property as a whole at that time . That proportionate value of Grantee' s property rights shall remain constant . When a change in conditions takes place which makes impossible or impractical any continued protection of the Protected Property for conservation purposes, and the restrictions contained herein are extinguished by judicial proceeding, Grantee, upon a subsequent sale, exchange or involuntary conversion of the Protected Property, shall be entitled to a portion of the proceeds at least equal to that proportionate value of the Conservation Easement. Grantee shall use its share of the proceeds in a manner consistent with the conservation purposes set forth herein or for the protection of a stream buffer as that phrase is defined by the Orange County Zoning Ordinance. 15 . Eminent Domain. If or whenever all or part of the Protected Property is taken by an exercise of eminent domain by public, corporate, or other authority so as to abrogate the restrictions imposed by this Conservation Easement, Grantors and Grantee shall join in appropriate actions at the time of the taking to recover the full value of the taking and all incidental or direct damages resulting from it, and the proceeds shall be divided in accordance with the proportionate value of Grantee' s and Grantors' s interests, and Grantee' s proceeds shall be used as specified above . All expenses incurred by Grantors and Grantee in such action shall be paid proportionately to their respective interests out of the recovered proceeds . 16 . Miscellaneous Provisions . 16 . 1 Severability. If any provision of this Conservation Easement or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Conservation Easement and the application of such provisions to persons or circumstances other than those as to which it is found to be invalid shall not be affected thereby. 16 .2 Successors and Assicrns. The term "Grantors" shall include Grantors and Grantors' s heirs, executors, administrators, successors and assigns and shall also mean the masculine, feminine, corporate, singular or plural form of the word as needed in the context of its use. The term "Grantee" shall include The Bricewood Acres Homeowners Association and its successors and assigns . 16 .3 Captions . The captions herein have been inserted solely for convenience of reference and are not part of this Conservation Easement and shall be construed in such manner as to have no effect upon construction or interpretation. 16 .4 Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it . In the event of any disparity between the counterpart's produced, the recorded counterpart shall be controlling. 16 .5 Notices . Any notices required in this Conservation Easement shall be sent by registered or certified mail to the following address or such address as may be hereafter designated by notice: Grantors : Joseph Phelps 2504 Hardwood Drive Hillsborough, NC 27278 Old Mill, Inc. 200 Cardinal Drive Hillsborough, NC 27278 Grantee: Orange County P.O. Box 8181 Hillsborough, NC 27278 TO HAVE AND TO HOLD the said Conservation Easement unto the said Grantee forever. IN WITNESS WHEREOF, Grantors have executed and sealed this document the day and year first above written. C-r (SEAL) JO PH PH PS (UNMARRIED� V- OLD MILL C. (SEAL) By: R E& bALM-STEP ll"S, PRESIDENT ATTEST: (SEAL) Secretary O COUNTY By: BAR ACOBS C , ORANGE COUNTY Co SS s (S� ATTEST: / ��P� Cats Se retary , (SEAL) STATE OF NORTH CAROLINA COUNTY OF ORANGE I, Donna E . Lunsford, Notary Public of the aforesaid County and State, do hereby certify that JOSEPH PHELPS (UNMARRIED) , personally appeared before me this day- and acknowledged the due execution of the foregoing instrument . Witness my hand and seal, this the 15th day of May, 200 E.tuNS�o� XA 0TAgy NOT P LIC "•"' j°tJBItG V My commission expires : 2-13-05 0 99 ilr Ir ie it�at*,k it�Ir�Ir tlr*�t 9k dr y1r 11r k dr ie ie h k de de th 1r Mr ek de Ar ile yk Ar�M yt k de a1r de de ie,t k'!r�r Ie�Ir it Ar k,k it+Ir�Ir�Vr*�r,k�r :CJUI°' STATE OF NORTH CAROLINA COUNTY OF ORANGE I, Donna E. Lunsford, Notary Public of the County and State aforesaid, certify that Bonnie M. Gates personally came before me this day and acknowledged that she is the Secretary of OLD MILL, INC. , a North Carolina corporation, and that by authority duly given and as the act of the said corporation, the foregoing instrument was signed in its name by its President, sealed with its seal and attested by her as its Secretary. 2002 .Witness my hand and notarial seal, this the 15th day of May, 6 Zm� NOTARY PUB My commission expires: 2-13-05 E.LU&Sk, o� 0 r►OTA p y Q O -O4l8L%G O STATE OF NORTH CAROLINA COUNTY OF I, Notary Public of the County and Sta aforesaid, certify that d"Zf 4k Al personally came before me this d and acknowledged that he or she is the Secretary of BARRY JACOBS, CHAIRMAN, ORANGE COUNTY COMMISSIONERS, a North Carolina corporation, and that by authority duly given and as the act of the said corporation, the foregoing instrument was signed in its name by its President, sealed with its seal and attested by her as its Secretary. Witness my hand and notarial seal, this the day of 2002 . N(YPARY PUBLIC My commission expires : 1,7 _7- agmt\phelps.2 EXHIBIT A BEING all that area shown as a "STREAM BUFFER" and lying and .being on portions of Lots 7, 8, 9, 11 and 12 of BRICEWOOD ACRES subdivision as shown on Plat of survey thereof by ENT Land Surveys, Inc. dated November 28, 1999 and recorded in Plat Book , page of the Orange County Registry, to which plat reference is hereby made for a more particular description of the same.