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HomeMy WebLinkAboutAgenda - 11-19-2013 - 4a1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 19, 2013 Action Agenda Item No. 4 -a SUBJECT: Resolution of Approval —Conservation Easement for Bliss - Dobyns Property DEPARTMENT: Environment, Agriculture, PUBLIC HEARING: (Y /N) No Parks and Recreation (DEAPR) ATTACHMENTS: INFORMATION CONTACT: Resolution of Approval Vicinity Map David Stancil, 919 - 245 -2510 Site Map Rich Shaw, 919 - 245 -2514 Draft Conservation Easement PURPOSE: To consider a resolution to approve the acceptance by Orange County of a conservation easement to protect portions of the Bliss - Dobyns property. BACKGROUND: The Lands Legacy Program 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 the program's inception (April 2000), the County and its partners have protected over 2,000 acres of prime farmland and riparian buffers with permanent conservation easements, and another 1,000 acres of important natural and cultural resource lands by other means. Brian Dobyns and Katherine Bliss own a 35 -acre property located on Mount Willing Road (Cheeks Township) and adjacent to County -owned land that is managed as the Seven Mile Creek component of the planned Upper Eno Preserve. The Bliss - Dobyns property includes the family's residence and outbuildings clustered in the northeast corner. There is a five -acre field used for agriculture and recreation. Most of the property, however, is forested with mixed hardwoods and two areas dominated by mature pine. That forested area serves as a link to County -owned forestlands on both sides of the property. The site includes 400 linear feet of an unnamed stream that drains to Sevenmile Creek and, eventually, to the Eno River. The owners intend to protect their land with a permanent conservation easement, which would also complement the County's efforts to establish the larger Seven Mile Creek component of the Upper Eno Preserve. The property is located in the "critical area" of the Upper Eno Protected Watershed, which the Lands Legacy Action Plan identifies as a priority watershed for conserving riparian buffers to help protect drinking water quality and aquatic habitat. The property is also located near the Crabtree Creek Monadnock Ridge — an Orange County Natural Heritage Area recognized as a large, undeveloped woodland corridor that serves as an important wildlife reservoir. DEAPR Staff and the County Attorney are working with the owners to prepare an agreement that meets their needs and the County's interests. The conservation easement would allow them to live on their property with residential uses restricted to a defined "Residential Envelope" and "Agricultural Envelope." The easement will prohibit future subdivision, prohibit future house sites, and preserve the mixed hardwood forest and stream corridor in their natural condition. All future development rights will be extinguished. DEAPR staff would monitor the property on an annual basis. A copy of the draft easement is attached. FINANCIAL IMPACT: The landowners, Brian Dobyns and Katherine Bliss, intend to grant a permanent conservation easement to Orange County. The easement would reduce the property's market value by $157,000 (as determined by an appraisal). The owners intend to donate 25% of the easement value, which is considered a "bargain sale." Hence, the proposed purchase price for the easement is $117,000 (75% of the easement value). The cost to the County would be the $117,000 purchase price plus an estimated $8,000 in transaction costs, including the easement survey, title search and closing fees. Those funds ($125,000 total) would come from existing funds budgeted in the Conservation Easements Capital Project approved by the Board of Commissioners for FY 2013 -14. The subject property is enrolled in the Present Use Value taxation program, so the acceptance of the conservation easement would not lessen the amount of property taxes paid to the County. The decrease in the property's market value caused by the conservation easement (and extinguishing of portion of its development rights) would not lower the property value to a level that is less than present use value ($57,430). The owners will take advantage of the NC Conservation Tax Credit program — available for easement donations — before the program expires December 31, 2013 due to legislation enacted by the NC General Assembly in 2013. The owners will also qualify for enhanced federal tax incentives for easement donations, which are also due to expire at the end of 2013. RECOMMENDATION(S): The Manager recommends the Board adopt and authorize the Chair to sign the resolution approving the acceptance by Orange County of the conservation easement and authorize the Chair and the Clerk to sign the conservation easement agreement, subject to final review by staff and County Attorney, with a closing and recordation of the document expected to occur on or about December 15, 2013. RES- 2013 -094 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Conservation Easement between Orange County and Brian Dobyns and Katherine Bliss K 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, Brian Dobyns and Katherine Bliss own a 35 -acre property located within "critical area" of the Upper Eno River Protected Watershed; and WHEREAS, Brian Dobyns and Katherine Bliss wish to protect their entire property — including hardwood forest that connects with the adjacent County -owned nature preserve, and an unnamed stream that flows to Sevenmile Creek and the Eno River; and WHEREAS, Brian Dobyns and Katherine Bliss wish to grant a permanent conservation easement to Orange County, which will protect significant natural resources associated with the 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 Brian Dobyns and Katherine Bliss that is described in the conservation easement agreement; 2) approve the execution of this conservation easement agreement with Brian Dobyns and Katherine Bliss, 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 15, 2013. BE IT FURTHER RESOLVED that the Board thanks Mr. Dobyns and Ms. Bliss for their civic - minded interest in pursuing this conservation easement through the Lands Legacy Program. This the 19th day of November, 2013. Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board 6 ML �r=`=+- 111�0�` l �'I`,�1�" i�� �-, ik 4 Ar I�■ r 47 i--`IuI._ _ ,e ,.�' ■ o , �k1�W,�r. �' !I �� ..Ate r,r'. .101.11110tit WIll �.�4� till117011,M111116,011111.. 1, ucivve 7:ass, L .....4, 111.11Alliallii-.. ill V 4.:11-Ilis worill (Willinwirri Hi!it la rtzo ow-lair 1 it „All I -a fib - -v igrok VII . •■ 411 ,iift, r .. h,..„.4,4114f,,,;„.7'. -•••--v•-_-•.% —41L-Not 7 Mt r i i Mio;41''' j4L:p! L i ♦ .II 1 111= - r�r(1LJ 1 ;• — C■ rI I —_ Woe 11111.41x•-1.':�'1';1iI�Lv ` llili■I1t.IJ■��!I1I 1111 i lir=r; - ?� ::u!1..1` aill, ,. Yti is ��. !l. 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Bliss-Dobyns Conservation Easement Vicinity Map -Bliss&Dobyns property =I Duke University property ®Conservation easements held by others Streets 0 1 inch = 3,880 feet - Conservation easements held by Orange County - Lakes&reservoirs - Orange County parkland&openspace Major streams Map prepared by Land Records/GIS Division r 6/25/2013 for Dept.of Environment, Non-county parkland&open space I Parcel boundary Agriculture,Parks 8 Recreation<OC 220K O:\gishome\gisproject\land resource - Municipal boundary atres_easemnt.nixd> �^ °°° 5 / / /. / / / / i. '/ / \ IO„ ��� `, 1 I ter `., ,7 ..,..,.,„ / *.:: `. 1 / A %/ i. _..\ i- Septic Drainfield / / • / Open Field / . %, \ / \ i1 i \ \ \ \ Bliss-Dobyns Conservation Easement(35.46 acres) Exhibit C M Bliss-Dobyns property boundary - Buildings Residential envelope(4.1 acres) Orange County property(Seven Mile Creek Preserve) TM "tl i E 1 inch=384 feet ®Agricultural envelope(4.8 acres) 1——1 Parcel boundary Dept.of Environment,Agriculture,Parks&Recreation — — — Existing roadway Streams Map by Land Records/GIS Division 8/29/2013 <OC 220K O:\gishome\gisproject\land_resource __= Utility Easement atres_easemnt.nixd> Bliss- Dobyns Conservation Easement Draft 9125113 This instrument prepared by and return to: John L. Roberts, Office of the Orange County Attorney Box 8181, Hillsborough, NC 27278 Revenue Stamps: NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF CONSERVATION EASEMENT This Deed of Conservation Easement (hereinafter "Conservation Easement ") is made on this day of , 2013 by L. KATHERINE BLISS and BRIAN DOBYNS, having an address of 828 Mount Willing Road, Efland, NC 27243 (hereinafter "Grantor ") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee" or "the Grantee "). The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantor is the sole owner in fee simple of certain real property located in Cheeks Township, Orange County, North Carolina, and described on Exhibit A hereto, which is incorporated herein by reference. The tract of land comprises approximately 35.46 acres, and is hereinafter referred to as "the Property." The Property includes buildings and other improvements, which are shown on Exhibit C, attached hereto and incorporated herein. B. The Grantee is a body politic and corporate, a political subdivision of the State of North Carolina, with powers prescribed in Chapter 153A of the North Carolina General Statutes. Page 1 of 16 7 Bliss- Dobyns Conservation Easement Draft 9125113 C. To the extent practicable, the Grantor and Grantee wish to maintain the Easement Area as a combination of woodland and open space suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to protect the water quality of a headwater stream running off from this land and into Sevenmile Creek and the Eno River. The grant of this Conservation Easement will further said wish, and will serve the following "Conservation Purposes," as such that term is defined in Section 170 (h)(4)(A) of the Code: The Property 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. The Property is located in an unusually undeveloped area that is recognized by Orange County as the Sevenmile Creek/Cane Creek Macrosite, a natural heritage area of regional significance, which hosts a broad diversity of plants and wildlife types, and is described on Page 69 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina (December 2004), by Dawson Sather et al. in coordination with the North Carolina Natural Heritage Program. It is a primary purpose of this Conservation Easement to protect the largely undeveloped nature of the Property and, in doing so, to support and help protect the natural area and wildlife habitat associated with this area. The Property is also within the "critical area" of the Upper Eno River Protected Watershed, so classified in the Orange County Comprehensive Plan. 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 Hillsborough and Orange County. The Property also contributes to the open space and rural character of this section of Cheeks Township. It is a further purpose of this Conservation Easement to help to protect the rural character and open space of Cheeks Township. The natural habitat of the Property, 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 Property. The Grantor and Grantee agree that the current uses of and improvements to the Property 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: Page 2 of 16 Bliss- Dobyns Conservation Easement Draft 9125113 (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 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 Property; 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. Page 3 of 16 Bliss - Dobyns Conservation Easement 9 Draft 9125113 D. The characteristics and conservation values of the Property, its current use and state of improvement, are described in a report entitled "Baseline Documentation Report for the Bliss- Dobyns Conservation Easement," dated 2013 (hereafter "the Baseline Report ") prepared by Orange County DEAPR for the Grantor, 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 Property 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 Property 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 Property if there is a question about its use. E. The Grantor and Grantee have the common purpose of conserving the above - described conservation values of the Property in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121 -34 et seq., and G.S. § 153A -176 and G.S. § 160A -266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses," and which provide for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvements less any reduction in value caused by the agreement "; and the Grantor and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, the Grantor, as an absolute gift of no monetary consideration, but in consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein, hereby gives, grants and conveys unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Easement over the Property 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 Property, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Property, 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 Property will be retained forever, predominantly in its natural, forested, and open space condition; to protect native plants and animals, or plant communities on the Property, while allowing certain limited uses on the Property that are compatible with and not Page 4 of 16 10 Bliss- Dobyns Conservation Easement Draft 9125113 destructive of the conservation values of the Property; and to prevent any use of the Property that will significantly impair or interfere with conservation values or interests of the Property. Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Property 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 Property after any act of nature or other event over which Grantor had no control. Grantor understands that nothing in this Conservation Easement relieves her of any obligation or restriction on the use of the Property imposed by law. 2. PROPERTY USES. Any activity on, or use of, the Property inconsistent with the purposes of this Conservation Easement is prohibited. The Property 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 Property. 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 Property. Additional retained rights of Grantor are set forth in Paragraph 3 below. 2.1 Subdivision and Convey. The Property consists of one tax parcel (herein "parcel "), which is described in Exhibit A. The Property may not be further divided, subdivided or partitioned to establish additional parcels. Any future conveyance of the fee simple interest in the Property shall be subject to this Conservation Easement. Grantor agrees for themselves, their successors and assigns, that in the event they transfer the Property, such transfer is subject to the Grantee's right of ingress, egress, and regress over and across the Property for the purposes set forth herein. 2.2 Construction. One residential dwelling exists within a 4.1 -acre "Residential Envelope" located on the Property as depicted on Exhibit C. Existing structures and improvements, may be repaired, enlarged and replaced within the "Residential Envelope" without further permission from Grantee. All appurtenant structures (garage, sheds) for the existing residential dwelling shall be contained within the "Residential Envelope." New structures and improvements may be built without any further permission of Grantee provided they are located in the "Residential Envelope." New buildings, including barns, sheds and other structures and improvements to be used primarily for agricultural purposes may be built on the Property without any further permission of Grantee provided they are located in the "Agricultural Envelope," as depicted on Exhibit C. All construction or reconstruction is subject to Orange County zoning regulations and must be consistent with permits required by and issued by Orange County under its laws and ordinances for such construction activities. No other permanent structures may be placed or constructed on the Property outside of the "Residential Envelope" or "Agricultural Envelope," except for fences used to identify property boundaries and for a septic Page 5 of 16 11 Bliss- Dobyns Conservation Easement Draft 9125113 system replacement drainfield as provided for in Paragraph 2.3 of this Conservation Easement. Furthermore, there shall be no constructing or placing of any airplane landing strip, billboard or other advertising display, utility pole, utility tower, conduit or line on or above the Property other than those necessary to service the Property's improvements and remaining compatible with the conservation values or interests of the Property. Outdoor lighting shall be placed and shielded so as to minimize the impact on surrounding areas. 2.3 Utility Services and Septic Systems. Grantor shall have the right to maintain and repair the existing utilities, and in the event of their destruction, to reconstruct any such existing improvements with another of similar function without any further permission of Grantee provided they are located in the "Residential Envelope" or "Agricultural Envelope" as depicted on Exhibit C to this Conservation Easement. The construction of a septic system replacement drainfield may be located outside of the "Residential Envelope" or "Agricultural Envelope" if, and only if, necessary to serve the existing (or its replacement) residential dwelling located on the Property and so long as required by permits issued by Orange County under its laws and ordinances as they exist now and as they may be amended from time to time. 2.4 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and horticultural uses are allowed provided they are located within, and only within, the "Agricultural Envelope" or the "Residential Envelope" identified on Exhibit C to this Conservation Easement. 2.5 Timber Harvesting and Forest Management. Commercial timbering of trees on the Property is prohibited. Within the areas identified and marked as "Residential Envelope" and "Agricultural Envelope" on Exhibit C to this Conservation Easement, trees may be planted, harvested and removed without the advance written permission of the Grantee. Everywhere else on the Property 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, and /or to salvage wind - thrown timber for firewood and other non - commercial purposes, including for construction of permitted improvements and fences on the Property. Such management activities must be pursuant to a written Forest Management Plan or Forest Stewardship 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. 2.6 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantor shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Property, including, but not limited to, hiking, picnicking, hunting, 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 Page 6 of 16 12 Bliss- Dobyns Conservation Easement Draft 9125113 recreational use of the Property, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation values of the Property. 2.7 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the improvements permitted herein, b) the maintenance of hiking trails permitted herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal ecosystems native to the locality. 2.8 Destruction of Plants. Grantor shall have the right to cut and remove diseased trees, shrubs, or other plants, to cut and remove invasive (usually non - native) trees, shrubs and other plants, and to cut firebreaks. Grantor shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction of non - native animals, or disturbance or change in the natural habitat in any manner. 2.9 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Property 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 Property. 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 Property. Diking, draining, filling or removal of wetlands is prohibited. 2.10 Signage. No signs or billboards or other advertising displays are allowed on the Property 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 Property may be displayed to identify the conservation values of the Property, to identify the Conservation Easement, to give directions, to advertise or regulate permitted uses on the Property and prescribe rules and regulations for educational use of the Property, to advertise the Property for sale or rent, to post the Property against trespassers, and to identify the Grantor as fee simple owner of the Property, 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 Property, and except as needed in the areas identified and marked "Residential Envelope" and Agricultural Envelope" on Exhibit C of this Conservation Easement without the permission of the Grantee. Page 7 of 16 13 Bliss- Dobyns Conservation Easement Draft 9125113 2.12 No Dump. 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 Property. 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 Property that could cause erosion or siltation on the Property. 2.13 Commercial Development. Any commercial or industrial use of or activity within the Property is prohibited, except as follows. Grantor retains the right to use the portion of the Property within the area identified and marked as "Residential Envelope" on Exhibit C of this Conservation Easement for otherwise lawful commercial enterprises, such as, but not limited to, a bed and breakfast or for educational programs, so long as such activities are consistent with Orange County zoning regulations and permits required by and issued by Orange County under its laws and ordinances as they exist now and as they may be amended from time to time, and are conducted in buildings otherwise permitted under this Conservation Easement in a manner that is consistent with the conservation purposes of this Conservation Easement. This restriction on use shall not be construed to prohibit use of the Property for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis. 2.14 Development Rights. Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Property, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Property, as it now or hereafter may be bounded or described, or to any other property. 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 Property not prohibited by this Conservation Easement. Prior to making any change in use of the Property, 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 Property 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: Page 8 of 16 Bliss- Dobyns Conservation Easement 14 Draft 9125113 (a) Right to Protect. The right to preserve and protect the conservation values of the Property 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 Grantor or with Grantor's prior verbal consent, to enter the Property for the purposes of: (a) inspecting the Property to determine whether the Grantor, her representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the Property. 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 Property. 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 Property. 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 Property. If Grantee is ever required to pay any taxes or assessments on its interest in the Property, the Grantor will reimburse Grantee for the same. (b) Upkeep and Maintenance — The Grantor retains all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no obligation for the upkeep or maintenance of the Property. Grantor will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Property. (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 Page 9 of 16 15 Bliss- Dobyns Conservation Easement Draft 9125113 Property, 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 Property 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 Property insurance policies covering the Property. 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 Property is conveyed by this Conservation Easement. However, the public has the right to view the Property from adjacent publicly accessible areas such as public lands, roads and waterways. 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. (a) With reasonable advance notice provided to the Grantor or with the Grantor's prior verbal consent, the Grantee shall have the right to enter the Property 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 Property, the Grantee shall give the Grantor written notice of the violation and thirty (30) days to cure the violation, before commencing any legal proceedings. The Grantee may obtain an injunction to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring the Grantor to restore the Property to its condition prior to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantor shall reimburse the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In any case where the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney's fee to the prevailing party as provided by law. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. (b) Grantee shall not bring any action against Grantor for any injury or change to the Property 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, Page 10 of 16 Bliss- Dobyns Conservation Easement 16 Draft 9125113 abate, or mitigate significant injury to life, damage to the Property or harm to the Property 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 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 PROPERTY. The Grantor agrees to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which it transfers or divests itself of any interest, including leasehold interest, in all or a portion of the Property. The Grantor shall notify the Grantee in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein. Failure of Grantor to do so shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 10. AMENDMENT OF EASEMENT. This Conservation Easement may be amended only with the written consent of Grantor and Grantee. Any such amendment shall be consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121 -34 et seq., or any regulations promulgated pursuant to that law. Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. PROCEDURE IN THE EVENT OF TERMINATION OF CONSERVATION EASEMENT. If it determines that conditions on or surrounding the Property 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 Property is sold, then as required by Section 1.1 70A- 14(g)(6) of the IRS regulations, the Grantee shall be entitled to thirty -nine percent (39 %) of the net proceeds attributable to the sale of land equal to the ratio of the appraised value of this Conservation Easement to the unrestricted fair market value of the Property, 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. Page 11 of 16 17 Bliss- Dobyns Conservation Easement Draft 9125113 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. 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 Property 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 Property, 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 Property or the entire Property by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Property, 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 Property is sold or taken for public use, then, as required by Section 1.170A- 14(g)(6) of the IRS regulations, Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at thirty -nine percent (39 %) of the Property's unrestricted land value (exclusive of improvements), subject to any applicable law which expressly requires for a different disposition of the proceeds. If, however, after the condemnation or eminent domain proceedings, a court of jurisdiction does not include in the just compensation awarded as a result of the taking, the amount of the Conservation Easement value, then the Grantor shall not be responsible to share any proceeds awarded. All condemnation related expenses, including reasonable attorney fees, incurred by the Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 13. INTERPRETATION. This Conservation Easement shall be interpreted under the laws of North Carolina, resolving any ambiguities and questions of the validity of specific provisions as to give maximum effect to its conservation purposes. 14. TITLE. The Grantor covenants and represents that she is the sole owner and seized of Property in fee simple and have good right to grant and convey this Conservation Easement; that the Property 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 Page 12 of 16 Bliss - Dobyns Conservation Easement Draft 9125113 derived from and arising out of this Conservation Easement, subject to any easements or encumbrances of record. 15. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantor: To the Grantee: Katherine Bliss and Brian Dobyns Orange County Dept. of Environment, 828 Mount Willing Road Agriculture, Parks and Recreation Efland, NC 27243 P.O. Box 8181 Hillsborough, NC 27278 16. ENVIRONMENTAL CONDITION. The Grantor warrants that she has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property. 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 Property. 21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor to use the Property 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. Page 13 of 16 Bliss- Dobyns Conservation Easement 19 Draft 9125113 (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 Property as of the date hereof. A summary is attached as Exhibit B. (b) Existing Conditions. Exhibit C is a GIS map and sketch showing the configuration and some of the existing uses of the Property. 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 Bliss- Dobyns Conservation Easement Draft 9125113 IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. Accepted: ATTEST: Donna S. Baker, Clerk to the Board of Commissioners GRANTOR: L. Katherine Bliss Brian Dobyns GRANTEE: ORANGE COUNTY, NORTH CAROLINA Barry Jacobs, Chair Orange County Board of Commissioners Page 15 of 16 P Bliss- Dobyns Conservation Easement NORTH CAROLINA COUNTY OF ORANGE I, Draft 9125113 Acknowledgments 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 , 2013. 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 , 2013. My commission expires: Notary Public (Notary's printed or typed name) Page 16 of 16 21