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HomeMy WebLinkAboutAgenda - 06-17-2014 - 6iORD- 2014 -028 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 17, 2014 Action Agenda Item No. 6 -i 1 SUBJECT: Resolution of Approval —Conservation Easement for Jason and Rebecca Davis and Approval of Budget Amendment #9 -C DEPARTMENT: Environment, Agriculture, Parks and Recreation (DEAPR) ATTACHMENTS: Resolution of Approval Vicinity Map Site Map Draft Conservation Easement PUBLIC HEARING: (Y /N) No INFORMATION CONTACT: David Stancil, 919 - 245 -2510 Rich Shaw, 919 - 245 -2514 PURPOSE: To consider a resolution to approve the acceptance by Orange County of a conservation easement to protect a portion of a property owned by Jason and Rebecca Davis; and to approve Budget Amendment #9 -C. 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 well 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. Jason and Rebecca Davis own a 10.4 -acre property located on Valley Wood Road (Cheeks Township). The property has 1,000 feet of frontage on Halley Creek, which flows to the Eno River just 1,700 feet downstream. 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 owners intend to protect a three -acre portion of their property with a permanent conservation easement. The area is entirely forested with mature hardwoods and has steep slopes above Halley Creek. Protecting this forested buffer will limit future runoff and pollution into the Eno River. The conservation easement will add to the significant amount of protected land located along this section of the Eno River. Adjacent to the Davis property there are two conservation easements held by Orange County on properties owned by Mark and Lori Volpe, which protect over 28 acres and 4,000 feet of stream frontage. Also downstream of the project is the Confluence Natural Area, a 180 -acre preserve owned by the Eno River Association and protected by conservation easements held by the State of North Carolina and Orange County. DEAPR Staff and the County Attorney have worked with the owners to prepare an agreement that meets their needs and the County's interests. The conservation easement will preserve the mixed hardwood forest and stream corridor in their natural condition except for allowing a pedestrian trail and one small gazebo. All other future development rights will be extinguished. DEAPR staff will monitor the site annually. A copy of the draft easement agreement is attached. The Eno River Association has been a partner in this project, having applied for and receiving a $4,000 grant from the City of Raleigh for the purchase of this conservation easement. Raleigh's funds were awarded through the Upper Neuse Clean Water Initiative. The Eno River Association is willing to serve as back -up holder of the easement should it become necessary. Finally, later this year the Davis' intend to purchase a four -acre portion of the adjoining land from Mark and Lori Volpe, including some of the Volpe's land protected by conservation easement. The parties will petition Orange County to amend their respective conservation easements in order to allow the transfer of the easement area from one landowner to the other through a recombination of property boundaries. DEAPR is supportive of this anticipated transaction as a follow -up to the Davis' granting of this conservation easement. FINANCIAL IMPACT: The landowners, Jason and Rebecca Davis, intend to grant a permanent conservation easement to Orange County. The proposed purchase price for the easement is $21,600. The City of Raleigh has awarded $4,000 toward the purchase of this easement so the cost to the County would be $17,600 plus an estimated $5,000 in transaction costs (survey, title search and closing fees), for a total estimated cost of $22,600. Budget Amendment #9 -C provides for the transfer and use of existing funds of $22,600 from the Lands Legacy Capital Project to the Conservation Easements Capital Project, and amends both projects as follows: Lands Legacy (422,600) Project # 20011 Revenues for this eroiect: Appropriated for this groiect: Current FY 2013 -14 FY 2013 -14 Amendment FY 2013 -14 Revised Alternative Financing $851,472 $0 $851,472 From General Fund $654,100 ($22,600) $631,500 Donations $1,000 $0 $1,000 Appropriated Fund Balance $9,337 $0 $9,337 Total Project Funding $1,515,909 ($22,600) $1,493,309 Appropriated for this groiect: Current FY 2013 -14 FY 2013 -14 Amendment FY 2013 -14 Revised Lands Legacy $1,515,909 ($22,600) $1,493,309 Total Costs $1,515,909 ($22,600) $1,493,309 K Conservation Easements ($22,600) Project # 20006 Revenues for this project: Appropriated for this project: Current FY 2013 -14 FY 2013 -14 Amendment FY 2013 -14 Revised Alternative Financing $590,632 $0 $590,632 Capital Grant Funds $1,028,280 $0 $1,028,280 Donations $1,020 $0 $1,020 From General Fund $409,296 $22,600 $431,896 Total Project Funding $2,029,228 $22,600 $2,051,828 Appropriated for this project: RECOMMENDATION(S): The Manager recommends the Board approve and authorize the Chair to sign the resolution approving the acceptance by Orange County of the conservation easement; approve Budget Amendment #9 -C; 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 July 18, 2014. Current FY 2013 -14 FY 2013 -14 Amendment FY 2013 -14 Revised Conservation Easements $2,029,228 $22,600 $2,051,828 Total Costs $2,029,228 $22,600 $2,051,828 RECOMMENDATION(S): The Manager recommends the Board approve and authorize the Chair to sign the resolution approving the acceptance by Orange County of the conservation easement; approve Budget Amendment #9 -C; 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 July 18, 2014. RES- 2014 -044 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Conservation Easement between Orange County and Jason and Rebecca Davis M 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, Jason and Rebecca Davis own a 35 -acre property located within "critical area" of the Upper Eno River Protected Watershed; and WHEREAS, Jason and Rebecca Davis wish to protect the mature hardwood forest adjacent to Halley Creek, which helps protect water quality and riparian wildlife habitat in this perennial stream that flows into the Eno River just 1,700 feet downstream from the property; and WHEREAS, Jason and Rebecca Davis 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 Jason and Rebecca Davis that is described in the conservation easement agreement; 2) approve the execution of this conservation easement agreement with Jason and Rebecca Davis, 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 July 18, 2014. BE IT FURTHER RESOLVED that the Board thanks Mr. and Ms. Davis for their civic - minded interest in pursuing this conservation easement through the Lands Legacy Program. This the 17th day of June, 2014. Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board MILL RD O J z 0 U) RD p LEBANON _ t- 00 w Y DALTON DR m POPE WAY a 0 O 1 JA 10 /'9s"3 4p W N JOHNSTON RD sA 7es �'o KENION RD Z 4z- Jsi °v� PEACE z 0 Cf J U cLrS RD DR I r O O BURKE R OE VRNOR SHAWNEE DR to j Z_ 1 O � M�NNICI( p F- ,..,___ RD UN BOROUGH J��o rn o m { x n m Dx o - cn C) M USO ,CORBIN ST C CAWS ST �Rp e � o �> )RA DR 'm i LU L m O� Cis �Dq L N Conservation Easement Jason & Rebecca Davis N wE 0 950 1,900 3,800 Feet - Davis property s Orange County Conservation easements held by Orange County Dept, of Environment, Agriculture, Parks and Recreationn 615/2014 Conservation easements held by others OC 220K0: \gishome \gisgproject\ "° ` land resource \NatResCE Davis.mxd .j F MIX •� . , Y171 441, r Z a� 4 ✓ �bi � L tr ;n3'. a -r f f7 �F� +fit, �� 4 � tqq.. •z , �f � �� r. �F Conservation Easement Jason & Rebecca Davis N w E 0 40 80 160 Feet Davis property I i i s. - - �N- fe Proposed conservation easement ( +l- 3.3 acres) - - Orange County Parcel boundary Dept. of Environment, Agriculture, Parks and Recreationn 6/5/2014 2013 Aerials OC 220K 0:\gishome \gisgproject\ land resource \NatResCE Davis.mxd 7 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 , 2014 by JASON G. DAVIS and REBECCA J. DAVIS, husband and wife, having an address at 141 Wateredge Land, Sanford, NC 27332 (hereinafter "Grantors ") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee" or "the Grantee "). The designation Grantors and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantors are the sole owners in fee simple of certain real property located in Cheeks Township, Orange County, North Carolina, and described on Exhibit A attached hereto, which is incorporated herein by reference. The tract of land described on Exhibit A comprises approximately 3.33 acres, and is hereinafter referred to as "the Easement Area." A map of the Easement Area is shown on Exhibit C, attached hereto and incorporated herein. There are no buildings or other improvements located within the Easement Area. 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 15 C. To the extent practicable, the Grantors and Grantee wish to maintain the Easement Area as a combination of woodland and open space suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to protect the quality of water running off from this land and into Haley Creek, a tributary of the Eno River, which river has both conservation value and is a public water supply for residents of Orange County. The grant of this Conservation Easement further said wish, and will serve the following "Conservation Purposes," as such term is defined in Section 170 (h)(4)(A) of the Code: The Easement Area contains a natural area that has not been subject to significant development, which provides a "...relatively natural habitat of fish, wildlife, or plants, or similar ecosystem," as that phrase is used in P.L. 96 -541, 26 UCS 170(h)(A)(ii), as amended, and in regulations promulgated thereunder. Specifically, the Easement Area is habitat for a variety of native plants and animals known to inhabit the Upper Eno River Macrosite as described on Pages 78 -82 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina (2004), by the North Carolina Natural Heritage Program. The Easement Area also is within a zone designated by Orange County as a "critical area" of the Upper Eno Watersheda protected water supply watershed for the Corporation Lake and Lake Ben Johnson reservoirs. Another primary purpose of this Easement is to protect the undeveloped nature of the Grantors' Easement Area and, in doing so, helping to protect the high quality of that drinking water supply serving people in Hillsborough and Orange County. The Easement Area also contributes to the open space and rural character of northern Cheeks Township and the Upper Eno Protected Watershed, so classified in the Orange County Unified Development Ordinance. It is a further purpose of this Easement to help to protect the rural character and open space of northern Cheeks Township. The natural habitat of the Easement Area, and its contribution to the protection of the public water supply watershed, as well as the open space and rural character of Cheeks Township are collectively referred to as the "conservation values" of the Easement Area. The Grantors and Grantee agree that the current uses of and improvements to the Easement Area are consistent with the conservation purposes of this Conservation Easement. The conservation purposes of this easement, notwithstanding anything to the contrary contained herein, are also recognized by, and this Conservation Easement will also serve, the following clearly delineated governmental conservation policies: (1) the Orange County Board of Commissioners' goal (adopted June 21, 1999) to identify and coordinate the preservation of the County's most significant natural areas; and Page 2 of 15 9 (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 Clean Water Management Trust Fund, authorized by NCGS § 113A -251 et seq., which finances projects to acquire land and interests in land, including conservation easements for the purposes of providing environmental protection for surface waters and urban drinking water supplies; and (8) the Soil and Water Conservation Districts Act, authorized by NCGS § 139 -1, et seq., which provides for the preservation of farm, forest and grazing lands; and (9) the 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 Davis Conservation Easement," dated June 2014 (hereafter "the Baseline Report ") prepared by Orange County DEAPR for the Grantors, of which a summary is attached as Exhibit B to this Conservation Easement. The Grantor worked with the Grantee to ensure that the report is a complete and accurate description of the Easement Area as of the date of this Conservation Easement. It will be used by the Grantors and Grantee to assure that any future changes in the use of the Easement Area will be consistent with the terms of this Conservation Easement. The Page 3 of 15 10 Baseline Report is not, however, intended to preclude the use of other evidence to establish the present condition of the Easement Area if there is a question about its use. E. The Grantors and Grantee have the common purpose of conserving the above - described conservation values of the Easement Area in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121 -34 et seq., and G.S. § 153A -176 and G.S. § 160A -266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses," and which provide for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvements less any reduction in value caused by the agreement "; and the Grantors and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, the Grantors, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein, hereby give, grant and convey unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Easement over the Easement Area of the nature and character as follows: With the exception of those rights retained herein, Grantors convey to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or described, or to any other property. 1. PURPOSE. As outlined in the Recitals above, the purposes of this Conservation Easement are to ensure that the Easement Area will be retained forever, predominantly in its natural, forested, and open space condition; to protect native plants and animals, or plant communities on the Easement Area, while allowing certain limited uses on the Easement Area that are compatible with and not destructive of the conservation values of the Easement Area; and to prevent any use of the Easement Area that will significantly impair or interfere with conservation values or interests of the Easement Area. Grantors will not perform, nor knowingly allow others to perform, any act on or affecting the Easement Area that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantors to take any action to restore the condition of the Easement Area after any act of nature or other event over which Grantors had no control. Grantors understand that nothing in this Conservation Easement relieves them of any obligation or restriction on the use of the Easement Area imposed by law. Page 4 of 15 11 2. PROPERTY USES. Any activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantors and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantors are set forth in Paragraph 3 below. 2.1 Subdivision and Convey. The Easement Area is a portion of a single tax parcel (herein "parcel "), which is described in Exhibit A. The Easement Area may not be further divided, subdivided or partitioned to establish additional parcels. Any future conveyance of the fee simple interest in the Easement Area shall be subject to this Conservation Easement. Grantors agree for themselves, their successors and assigns, that in the event they transfer the Easement Area, such transfer is subject to the Grantee's right of ingress, egress, and regress over and across the Easement Area for the purposes set forth herein. 2.2 Construction. No permanent structures exist on the Easement Area at the time of this Conservation Easement. The Grantors' reserve the right to construct or reconstruct new structures and other improvements described in subparagraphs (a) through (c) below. Any construction or reconstruction not permitted below is prohibited. Before undertaking any construction or reconstruction that requires advance permission, Grantor shall notify Grantee and obtain written permission 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 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 one (1) gazebo with a footprint containing no more than 100 square feet as well as no more than two (2) benches within the Easement Area. No other structures may be placed or constructed on the Easement Area, nor shall there be construction or placing of any outdoor lighting, utility pole, utility tower, conduit or line on or above the Easement Area. (c) Pedestrian Trails — Pedestrian trails may be constructed as long as such trails be of a natural surface, not be more than six (6) feet wide, and located at a minimum distance of thirty (30) feet from the top of the bank of Haley Creek. Page 5 of 15 12 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 is prohibited. 2.5 Timber Harvesting and Forest Management. Commercial timbering of trees within the Easement Area is prohibited. Trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, to remove non- native species, or to salvage wind - thrown timber, including construction of permitted improvements and fences on the Easement Area. Timber harvesting and forest management activities, including the use of controlled burns, must be pursuant to a written Forest Management Plan prepared by a North Carolina registered forester, the selection of whom is mutually agreed upon by Grantor and Grantee and which management activities must be agreed to in advance by Grantee and Grantor. 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. 2.6 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantors shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Easement Area, including, but not limited to, hunting, fishing, hiking, picnicking, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land. Grantors reserve the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Easement Area, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation values of the Easement Area. 2.7 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the improvements permitted herein, b) the maintenance of trails permitted herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal ecosystems native to the locality. 2.8 Destruction of Plants. Grantors shall have the right to cut and remove diseased trees, shrubs, or other plants, to cut and remove invasive (usually non - native) trees, shrubs and other plants, and to cut firebreaks. Grantors shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting Page 6 of 15 13 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 Snage. 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 spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2.13 Predator Control. Grantors shall have the right to control, destroy, or trap predatory and problem animals that pose a material threat to humans by means and methods with prior written approval of Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques. 2.14 Commercial Development. Any commercial or industrial use of or activity within the Easement Area is prohibited. This restriction on use shall not be construed to prohibit use of the Easement Area for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis. 2.15 Development Rights. Grantors convey to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and Page 7 of 15 14 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. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantors retain the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Easement Area not prohibited by this Conservation Easement. Prior to making any change in use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. This determination by Grantee shall be made in writing. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is subject to the terms of this Conservation Easement. 4. GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the purposes of this Conservation Easement, the following rights are granted to Grantee and the following responsibilities are reserved to Grantee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after reasonable advance notice to Grantors or with Grantor's prior verbal consent, to enter the Easement Area for the purposes of: (a) inspecting the Easement Area to determine whether the Grantors, their representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the Easement Area. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or at Grantee's direction or with Grantee's permission shall be reported to Grantors. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantor or at Grantors' direction or with Grantors' permission shall be reported to Grantee. (d) Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non - native species or invasive species of plants and animals that threaten the conservation values of the Easement Area. Grantee will consult with Grantors prior to implementing any such control activities. Page 8 of 15 15 RESPONSIBILITIES OF GRANTORS AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantors, or in any way to affect any existing obligation of the Grantors as owners of the Easement Area. Among other things, this means: (a) Taxes — The Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Easement Area. If Grantee is ever required to pay any taxes or assessments on its interest in the Easement Area, the Grantors will reimburse Grantee for the same. (b) Upkeep and Maintenance — The Grantors retain all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Easement Area, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no obligation for the upkeep or maintenance of the Easement Area. Grantors will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Easement Area. (c) Liability and Indemnification — Grantors agree to indemnify and hold Grantee harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the Easement Area, or any claim thereof, unless due to the negligence of Grantee or agents of Grantee, in which case liability shall be as provided by law. In addition, Grantors agree to maintain liability insurance covering the Easement Area with the limits as follows: (i) $300,000 per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per occurrence for property damage; and warrant that Grantee is and will remain a named insured on Easement Area insurance policies covering the Easement Area. Grantors shall provide Grantee with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 6. ACCESS. No right of access by the general public to any portion of the Easement Area is conveyed by this Conservation Easement. However, the public has the right to view the Easement Area from adjacent publicly accessible areas such as public roads and waterways. 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. (a) With reasonable advance notice provided to the Grantors or with the Grantor's prior verbal consent, the Grantee shall have the right to enter the Easement Area for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the conservation values of the Easement Area, the Grantee shall give the Page 9 of 15 16 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 Grantors to restore the Easement Area to its condition prior to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantors shall reimburse the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In any case where the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney's fee to the prevailing party as provided by law. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. (b) Grantee shall not bring any action against Grantors for any injury or change to the Easement Area caused by third parties, or resulting from causes beyond the Grantors' control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantors under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Easement Area or harm to the Easement Area resulting from such action. 8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer, assign, convey, or otherwise to co -hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified 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. In the event Grantee wishes to assign this Conservation Easement, it should offer the assignment first to the Association for the Preservation of the Eno River Valley, Inc., should it be qualified and authorized to hold this Conservation Easement under Section 170(h) of the U.S. Internal Revenue Code. If Grantee ever ceases to exist or no longer qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Conservation Easement. 9. TRANSFER OF EASEMENT AREA. The Grantors agree to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which it transfers or divests itself of any interest, including leasehold interest, in all or a portion of the Easement Area. The Grantors shall notify the Grantee in writing at least thirty (30) days before conveying the Easement Area, or any part thereof or interest therein. Failure of Grantors to do so shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 10. AMENDMENT OF EASEMENT. This Conservation Easement may be amended only with the written consent of Grantors and Grantee. Any such amendment shall be Page 10 of 15 17 consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121 -34 et seq., or any regulations promulgated pursuant to that law. Grantors and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. PROCEDURE IN THE EVENT OF 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 Grantors and the Grantee, terminate or modify the Conservation Easement created by this Deed in accordance with applicable State law. If the Conservation Easement is terminated and the Easement Area is sold, then as required by Section 1.1 70A- 14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to Grantors), equal to the ratio of the appraised value of this Conservation Easement to the unrestricted fair market value of the Easement Area, as these values are determined on the date of this Conservation Easement, subject to any applicable law which expressly provides for a different disposition of the proceeds. All termination related expenses, including reasonable attorney fees, incurred by the Grantors and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 12. PROCEDURE IN THE EVENT OF CONDEMNATION OR EMINENT DOMAIN. Grantors and Grantee recognize that the partial sale of this Conservation Easement gives rise to a property right, immediately vested in the Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Easement Area prior to the restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or eminent domain action shall be taken, on all or part of the Easement Area, by any authorized authority, said authority shall be liable to the Grantee for the value of the property right vested in the Grantee at the time of the signing of this Conservation Easement. If condemnation or a taking by eminent domain of a part of the Easement Area or the entire Easement Area by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Easement Area, this Conservation Easement may be terminated or modified accordingly through condemnation proceedings. Grantors and Grantee agree that this Conservation Easement is a currently vested real property right with a value equal to the proportionate value of the Conservation Easement to the unencumbered value of the fee, as of the date of this Conservation Easement. If the Conservation Easement is terminated or modified and any or all of the Easement Area is sold or taken for public use, then, as required by Section 1.170A- 14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which Page 11 of 15 amount shall be reserved to Grantors), equal to the ratio of the appraised value of this Conservation Easement to the unrestricted fair market value of the Easement Area, as these values are determined on the date of this Conservation Easement, subject to any applicable law which expressly provides for a different disposition of the proceeds. If, however, after the condemnation or eminent domain proceedings, a court of jurisdiction does not include in the just compensation awarded as a result of the taking, the amount of the Conservation Easement value, then the Grantor shall not be responsible to share any proceeds awarded. All condemnation related expenses, including reasonable attorney fees, incurred by the Grantors and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 13. INTERPRETATION. This Conservation Easement shall be interpreted under the laws of North Carolina, resolving any ambiguities and questions of the validity of specific provisions as to give maximum effect to its conservation purposes. 14. TITLE. The Grantors covenant and represent that they are the sole owners and seized of Easement Area in fee simple and have good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages not subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, subject to any easements or encumbrances of record. 15. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantors and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantors: Jason and Rebecca Davis 141 Wateredge Lane Sanford, NC 27332 To the Grantee: Orange County Dept. of Environment, Agriculture, Parks and Recreation Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 16. ENVIRONMENTAL CONDITION. The Grantors warrant that they have no actual knowledge of a release or threatened release of hazardous substances or wastes on the Easement Area. 17. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. Page 12 of 15 19 18. PARTIES. Every provision of this Conservation Easement that applies to the Grantors or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. This Conservation Easement shall not be construed to benefit or to create any rights in any third parties, including but not limited to the general public. 19. RE- RECORDING. In order to ensure the perpetual enforceability of the Conservation Easement, the Grantee is authorized to re- record this instrument or any other appropriate notice or instrument. 20. MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Easement Area. 21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation Easement should be construed as impairing the ability of Grantors to use the Easement Area as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 22. EXHIBITS AND DOCUMENTATION. (a) Exhibit A contains the legal description of the Easement Area. (b) Exhibit B is a summary of a Baseline Documentation Report. The parties acknowledge that the Baseline Documentation Report, a copy of which is on file at the offices of the Grantee, accurately establishes the uses, structures, conservation values and condition of the protected Easement Area as of the date hereof. (c) Exhibit C is a GIS map and sketch showing the configuration of the property owned by the Grantors. 23. ENTIRE AGREEMENT. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings or agreements relating to the Conservation Easement. If any provision is found to be invalid, the remainder of the provisions of this Conservation Easement, and the application of such provision to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby. 24. ACCEPTANCE AND EFFECTIVE DATE. As attested by the Clerk of the Grantee and the signature of its authorized representative affixed hereto, the Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Conservation Easement. This Conservation Easement is to be effective the date recorded in the Orange County Registry of Deeds. TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee its successors and assigns, forever. Page 13 of 15 IN WITNESS WHEREOF, the Grantors 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 GRANTORS: Jason G. Davis Rebecca J. Davis GRANTEE: ORANGE COUNTY, NORTH CAROLINA Barry Jacobs, Chair Orange County Board of Commissioners Page 14 of 15 P NORTH CAROLINA COUNTY OF ORANGE I, hereby certify that Acknowledgments a Notary Public in and for said County and State do 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 , 2014. 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 , 2014. My commission expires: Notary Public (Notary's printed or typed name) Page 15 of 15 21