HomeMy WebLinkAboutAgenda - 12-10-2013 - 6f 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: December 10, 2013
Action Agenda
Item No. 6-f
SUBJECT: Resolution of Approval — Hughes-Morgan Conservation Easement Donation
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 a portion of the Hughes-Morgan 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.
Michael Hughes and Dale Morgan own a 29-acre property located east of Orange Grove Road
(Bingham Township). Along with the family's residence and outbuildings, the parcel includes a
forested area containing approximately 1,000 linear feet of Collins Creek, a perennial stream
that originates in Orange County and flows into Chatham County and the Haw River.
The owners intend to protect an 11-acre portion of the property with a permanent conservation
easement, which would safeguard forested buffers and wildlife habitat along both sides of
Collins Creek. Collins Creek is one of only four water bodies within Orange County's jurisdiction
with water quality designated as "impaired" by the State of North Carolina. The County's 2030
Comprehensive Plan includes a specific objective to reduce the number of State-listed impaired
streams by minimizing impacts of non-point and point source pollution.
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 easement will prohibit future subdivision,
thereby eliminating two potential house sites, and preserve the mixed hardwood forest and
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Collins Creek corridor in their natural condition. All future development rights will be
extinguished. DEAPR staff will monitor the property on an annual basis. A copy of the draft
easement is attached.
FINANCIAL IMPACT: The landowners, Michael Hughes and Dale Morgan, intend to donate the
conservation easement to Orange County and pursue state and federal tax benefits available for
such easement donations. The cost to the County would be approximately $6,000 in
transaction costs, including the appraisal, easement survey, title search and closing fees.
Those funds would come from existing funds budgeted in the Lands Legacy Capital Project.
The owners intend to take advantage of the NC Conservation Tax Credit program — available for
easement donations — before the program expires December 31, 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: 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 31, 2013.
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RES-2013-110
ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION
Approval of Conservation Easement between
Orange County and
Michael Hughes and Dale Morgan
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, Michael Hughes and Dale Morgan own a 29-acre property located within the
Haw River water supply watershed; and
WHEREAS, Michael Hughes and Dale Morgan wish to protect an 11-acre portion of their
property—including an intact forested stream corridor with approximately 1,000 linear feet of
Collins Creek, which flows through the property en route to Haw River and Jordan Lake; and
WHEREAS, Michael Hughes and Dale Morgan wish to donate a permanent conservation
easement to Orange County, which will protect significant natural resources on 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 Michael Hughes and Dale Morgan that is described in the conservation
easement agreement; 2) approve the execution of this conservation easement agreement
with Michael Hughes and Dale Morgan, 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, 2013.
BE IT FURTHER RESOLVED that the Board thanks Mr. Hughes and Ms. Morgan for their
civic-minded interest in pursuing this conservation easement through the Lands Legacy
Program.
This the 10th day of December, 2013.
Barry Jacobs, Chair
Orange County Board of Commissioners
Donna Baker, Clerk to the Board
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Fern Creek Conservation Easement OEM=
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 MICHAEL HUGHES and DALE A. MORGAN, having
an address of 8112 Orange Grove Road, Chapel Hill, NC 27516 (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
Bingham Township, Orange County, North Carolina, and described on Exhibit A hereto, which
is incorporated herein by reference. The tract of land comprises approximately 11.18 acres, and
is hereinafter referred to as "the Easement Area." The Easement Area 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.
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Fern Creek Conservation Easement OEM=
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 Collins Creek and other
perennial streams that flow through this land and eventually to the Haw River and Jordan Lake.
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 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.
The Easement Area contains complex natural communities including: bottomland
hardwood forest dominated by hardwood wetland trees; Collins Creek and three feeder streams;
upland forest dominated by beech, oaks, hickories, and large pines; a diverse forested habitat for
several species of birds; and natural depressions in low-lying areas that provide breeding sites for
salamanders, a community ranked"globally rare" and "very rare in the state"by the North
Carolina Natural Heritage Program. It is a primary purpose of this Conservation Easement to
protect the largely undeveloped nature of the Easement Area and, in doing so, to support and
help protect the natural area and wildlife habitat associated with this area.
The Easement Area also contains an intact segment of Collins Creek, which the State of
North Carolina identifies on its list of"303(4)impaired streams." It is a specific objective of
Orange County in its 2030 Comprehensive Plan, to reduce the number of 303(4)impaired
streams by minimizing impacts of non-point and point source pollution. Another primary
purpose of this Easement is to protect the undeveloped nature of the Grantor's Easement Area
and, in doing so, helping to protect the water quality associated with Collins Creek.
The Easement Area also contributes to the open space and rural character of this section
of Bingham Township. It is a further purpose of this Conservation Easement to help to protect
the rural character and open space of Bingham Township.
The natural habitat of the Easement Area, and its contribution to the protection of Collins
Creek water quality, as well as the open space and rural character of Bingham Township are
collectively referred to as the "conservation values" of the Easement Area.
The Grantor and Grantee agree that the current uses of and improvements to the
Easement Area are consistent with the conservation purposes of this Conservation Easement.
The conservation purposes of this easement, notwithstanding anything to the contrary contained
herein, are also recognized by, and this Conservation Easement will also serve, the following
clearly delineated governmental conservation policies:
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Fern Creek Conservation Easement OEM=
(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 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
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Fern Creek Conservation Easement OEM=
(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
the Fern Creek Conservation Easement," dated December 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 Easement Area as of the date of this Conservation
Easement. It will be used by the Grantor and Grantee to assure that any future changes in the use
of the Easement Area will be consistent with the terms of this Conservation Easement.
However, the Baseline Report is not intended to preclude the use of other evidence to establish
the present condition of the Easement Area if there is a question about its use.
E. The Grantor and Grantee have the common purpose of conserving the
above-described conservation values of the Easement Area in perpetuity, and the State of North
Carolina has 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 Easement Area of the nature and character as follows:
With the exception of those rights retained herein, Grantor conveys to Grantee all
development rights that are now or hereafter allocated to, implied, reserved or inherent in the
Easement Area, and the parties agree that such rights are terminated and extinguished, and may
not be used on or transmitted to any portion of the Easement Area, as it now or hereafter 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
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natural, forested, and open space condition; to protect native plants and animals, or plant
communities on the Easement Area, while allowing certain limited uses on the Easement Area
that are compatible with and not destructive of the conservation values of the Easement Area;
and to prevent any use of the Easement Area that will significantly impair or interfere with
conservation values or interests of the Easement Area.
Grantor will not perform, nor knowingly allow others to perform, any act on or affecting
the Easement Area that is inconsistent with the purposes of this Conservation Easement.
However, unless otherwise specified below, nothing in this Conservation Easement shall require
the Grantor to take any action to restore the condition of the Easement Area after any act of
nature or other event over which Grantor had no control. Grantor understands that nothing in
this Conservation Easement relieves her of any obligation or restriction on the use of the
Easement Area imposed by law.
2. EASEMENT AREA USES. Any activity on, or use of, the Easement Area
inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area
shall be maintained in its natural and open condition and restricted from any development that
would impair or interfere with the conservation values of the Easement Area. Without limiting
the generality of the foregoing, the following is a listing of activities and uses which are
expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that
the allowed activities do not impair the conservation values of the Easement Area. Additional
retained rights of Grantor are set forth in Paragraph 3 below.
2.1 Subdivision and Conveyance. The Easement Area is a portion of one tax
parcel (herein "parcel' ), which is described in Exhibit A. The Easement Area itself may not be
further divided, subdivided or partitioned to establish additional parcels. Any future conveyance
of the fee simple interest in the Easement Area shall be subject to this Conservation Easement.
Grantor agrees for 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. 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. Before undertaking any construction or reconstruction that requires
advance permission, Grantor shall notify Grantee and obtain written permission from the Orange
County Department of Environment, Agriculture, Parks and Recreation or a successor
department. All construction or reconstruction is subject to Orange County zoning regulations
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and must be consistent with permits required by and issued by Orange County under its laws and
ordinances for such construction activities.
(a) Fences —Fences may be built on the Easement Area to identify property
boundaries and thereafter repaired and replaced without any further permission of Grantee.
(b) New Structures and Improvements —Grantors have the right to construct no more
than three(3) small pedestrian bridges to cross over streams within the Easement Area. No other
structures may be placed or constructed on 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
(30) feet from the top of the bank of the Collins Creek.
2.3 Utility Services and Septic Systems. Construction, maintenance, repair or
improvement of electric, gas, water facilities, sewer lines and/or other public or private utilities,
including telephone or other communication services is prohibited within the Easement Area.
2.4 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and
horticultural uses of the Easement Area are prohibited.
2.5 Timber Harvesting and Forest Management. Commercial timbering of
trees on 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, and/or to salvage wind-thrown timber for firewood and other non-commercial
purposes, including for construction of permitted improvements and fences on the Easement
Area. 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 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. Hunting is prohibited
except as authorized in Section 2.13 of this Conservation Easement. Grantor reserves the right to
promulgate and enforce reasonable rules and regulations for all activities incident to recreational
use of the Easement Area, including but not limited to the right to prohibit any recreational use
that would permit destruction of other significant conservation values of the Easement Area.
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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 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 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 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
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spoils, nor shall activities be conducted on the Easement Area that could cause erosion or
siltation on the Easement Area.
2.13 Predator Control. Grantor shall have the right to control, destroy, or trap
predatory and problem animals that pose a material threat to 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.
2.14 Development Rights. Grantor conveys to Grantee all development rights
that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and
the parties agree that such rights are terminated and extinguished, and may not be used on or
transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or
described, or to any other property.
3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the
following additional rights:
(a) Existing Uses. The right to undertake or continue any activity or use of the
Easement Area not prohibited by this Conservation Easement. Prior to making any change in
use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable
opportunity to determine whether such change would violate the terms of this Conservation
Easement. This determination by Grantee shall be made in writing.
(b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the
Easement Area 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 Grantor
or with Grantor's prior verbal consent, to enter the Easement Area for the
purposes of: (a)inspecting the Easement Area to determine whether the Grantor,
her representatives, assigns, heirs and successors are complying with the
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covenants and purposes of this Conservation Easement; and (b) monitoring and
research as described below.
(c) Monitoring and Research. The right, but not the obligation, to monitor the native
plant and wildlife populations,plant communities and natural habitats on the
Easement Area. Grantee agrees that all monitoring activity, inventory and
assessment work or other natural resource research conducted by Grantee or at
Grantee's direction or with Grantee's permission shall be reported to Grantor.
Grantor agrees that all monitoring activity, inventory and assessment work or
other natural resource research conducted by Grantor or at Grantor's direction or
with Grantor's permission shall be reported to Grantee.
(d) Management of Exotics and Invasive Species. The right, but not the obligation, to
control, manage or destroy exotic non-native species or invasive species of plants
and animals that threaten the conservation values of the Easement Area. Grantee
will consult with Grantor prior to implementing any such control activities.
5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED.
Other than as specified herein, this Conservation Easement is not intended to impose any legal or
other responsibility on the Grantor, or in any way to affect any existing obligation of the Grantor
as owner of the Easement Area. Among other things, this means:
(a) Taxes —The Grantor shall continue to be solely responsible for payment of all
taxes and assessments levied against the Easement Area. If Grantee is ever required to pay any
taxes or assessments on its interest in the Easement Area, the Grantor will reimburse Grantee for
the same.
(b) 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 Easement Area, including the maintenance of adequate comprehensive
general liability insurance coverage. Grantee shall have no obligation for the upkeep or
maintenance of the Easement Area. Grantor will remain responsible for upkeep, maintenance,
and repairs to any impoundments located on the Easement Area.
(c) Liability and Indemnification —Grantor agrees to indemnify and hold Grantee
harmless from any and all costs, claims or liability, including but not limited to reasonable
attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the
Easement Area, or any claim thereof, unless due to the negligence of Grantee or agents of
Grantee, in which case liability shall be as provided by law. In addition, Grantor agrees to
maintain liability insurance covering the Easement Area with the limits as follows: (i) $300,000
per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per
occurrence for property damage; and warrant that Grantee is and will remain a named insured on
property insurance policies covering the Easement Area. Grantor shall provide Grantee with a
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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 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 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 (30) days to cure the violation, before
commencing any legal proceedings. The Grantee may obtain an injunction to stop a violation or
a threatened violation, temporarily or permanently. The parties agree that a court may issue an
injunction or order requiring the Grantor to restore the Easement Area to its condition prior to the
violation, as restoration of the property may be the only appropriate remedy. In any case where a
court finds that a violation has occurred, the Grantor shall reimburse the Grantee for all its
expenses incurred in stopping and correcting the violation, including but not limited to
reasonable attorneys' fees. In any case where a court finds no such violation has occurred, each
party shall bear its own costs. In any case where the court finds that there was a complete
absence of a justiciable issue of either law or fact raised by the losing party, the court may award
a reasonable attorney's fee to the prevailing party as provided by law. The failure of the Grantee
to discover a violation or to take immediate legal action shall not bar it from doing so at a later
time for that violation or any subsequent violations.
(b) Grantee shall not bring any action against Grantor for any injury or change to the
Easement Area caused by third parties, or resulting from causes beyond the Grantor's control,
including, without limitation, fire, flood, storm and naturally caused earth movement, or from
any prudent action taken in good faith by the Grantor under emergency conditions to prevent,
abate, or mitigate significant injury to life, damage to the Easement Area or harm to the
Easement Area resulting from such action.
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
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organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under
NCGS 121-34 et seq.,provided the agency or organization expressly agrees to assume the
responsibility imposed on Grantee by this Deed. If the Grantee ever ceases to exist or no longer
qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court
with jurisdiction shall transfer this Conservation Easement to another qualified organization
having similar purposes that agrees to assume the responsibility imposed by this Conservation
Easement.
9. TRANSFER OF EASEMENT AREA. 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 Easement Area. The Grantor shall notify the Grantee in writing at least thirty (30) days
before conveying the Easement Area, or any part thereof or interest therein. Failure of Grantor
to do so shall not impair the validity of this Conservation Easement or limit its enforceability in
any way.
10. AMENDMENT OF EASEMENT. This Conservation Easement may be
amended only with the written consent of Grantor and Grantee. Any such amendment shall be
consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of
the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any
such amendment shall also be consistent with the Uniform Conservation and Historic
Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., or any regulations promulgated
pursuant to that law. Grantor and Grantee have no right or power to agree to any amendment
that would affect the enforceability of this Conservation Easement.
11. PROCEDURE IN THE EVENT OF TERMINATION OF
CONSERVATION EASEMENT. If it determines that conditions on or surrounding the
Easement Area change so much that it becomes impossible to fulfill the conservation purposes of
this Conservation Easement, a court with jurisdiction may, at the joint request of both the
Grantor and the Grantee, terminate or modify the Conservation Easement created by this Deed in
accordance with applicable State law. If the Conservation Easement is terminated and the
Easement Area is sold, then as required by Section 1.1 70A-14(g)(6) of the IRS regulations, the
Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus
any amount attributed to new improvements made after the date of the conveyance, which
amount shall be reserved to Grantor), equal to the ratio of the appraised value of this
Conservation Easement to the unrestricted fair market value of the Easement Area, as these
values are determined on the date of this Conservation Easement, subject to any applicable law
which expressly provides for a different disposition of the proceeds.
All termination related expenses, including reasonable attorney fees, incurred by the
Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
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12. PROCEDURE IN THE EVENT OF CONDEMNATION OR EMINENT
DOMAIN. Grantor and Grantee recognize that the partial sale of this Conservation Easement
gives rise to a property right, immediately vested in the Grantee, with a fair market value equal
to the proportionate value that the Conservation Easement bears to the value of the Easement
Area prior to the restrictions imposed by the Conservation Easement. Accordingly, if any
condemnation or eminent domain action shall be taken, on all or part of the Easement Area, by
any authorized authority, said authority shall be liable to the Grantee for the value of the property
right vested in the Grantee at the time of the signing of this Conservation Easement.
If condemnation or a taking by eminent domain of a part of the Easement Area or the
entire Easement Area by a public authority renders it impossible to fulfill any of the conservation
purposes of this Conservation Easement on all or part of the Easement Area, this Conservation
Easement may be terminated or modified accordingly through condemnation proceedings.
Grantor and Grantee agree that this Conservation Easement is a currently vested real property
right with a value equal to the proportionate value of the Conservation Easement to the
unencumbered value of the fee, as of the date of this Conservation Easement. If the
Conservation Easement is terminated or modified and any or all of the Easement Area is sold or
taken for public use, then, as required by Section 1.170A-14(g)(6) of the IRS regulations, the
Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus
any amount attributed to new improvements made after the date of the conveyance, which
amount shall be reserved to Grantor), equal to the ratio of the appraised value of this
Conservation Easement to the unrestricted fair market value of the Easement Area, as these
values are determined on the date of this Conservation Easement, subject to any applicable law
which expressly provides for a different disposition of the proceeds.
If, however, after the condemnation or eminent domain proceedings, a court of
jurisdiction does not include in the just compensation awarded as a result of the taking, the
amount of the Conservation Easement value, then the Grantor shall not be responsible to share
any proceeds awarded.
All condemnation related expenses, including reasonable attorney fees, incurred by the
Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
13. INTERPRETATION. This Conservation Easement shall be interpreted under
the laws of North Carolina, resolving any ambiguities and questions of the validity of specific
provisions as to give maximum effect to its conservation purposes.
14. TITLE. The Grantor covenants and represents that she is the sole owner 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
Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits
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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:
Michael Hughes and Dale Morgan Orange County Dept. of Environment,
8112 Orange Grove Road Agriculture, Parks and Recreation
Chapel Hill, NC 27516 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
Easement Area.
17. SEVERABILITY. If any provision of this Conservation Easement is found to be
invalid, the remaining provisions shall not be altered thereby.
18. PARTIES. Every provision of this Conservation Easement that applies to the
Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns,
and all other successors as their interest may appear. This Conservation Easement shall not be
construed to benefit or to create any rights in any third parties, including but not limited to the
general public.
19. RE-RECORDING. In order to ensure the perpetual enforceability of the
Conservation Easement, the Grantee is authorized to re-record this instrument or any other
appropriate notice or instrument.
20. MERGER. The parties agree that the terms of this Conservation Easement shall
survive any merger of the fee and easement interest in the Easement Area.
21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation
Easement should be construed as impairing the ability of Grantor to use the Easement Area as
collateral for subsequent borrowing,provided that any mortgage or lien arising from such a
borrowing is made subordinate to this Conservation Easement.
22. EXHIBITS AND DOCUMENTATION.
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(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 Easement Area 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 of the Easement Area and surrounding 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.]
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IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTOR:
Michael Hughes
Dale A. Morgan
Accepted:
GRANTEE:
ORANGE COUNTY, NORTH CAROLINA
By:
Barry Jacobs, Chair
Orange County Board of Commissioners
ATTEST:
By:
Donna S. Baker, Clerk to the
Board of Commissioners
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Acknowledgments
NORTH CAROLINA
COUNTY OF ORANGE
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 , 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.
Notary Public
(Notary's printed or typed name)
My commission expires:
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