HomeMy WebLinkAboutS Warranty Deed of Conservation Easement between Orange County and Jason G. Davis and Rebecca J. Davis II���I�������l��l,�l�l�4111gII I,IJI,I�NI{III I Iil
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FILED Deborah B. Brooks
Register of Deeds, Orange Co,NC
Recording Fee: 42.00
NC Real Estate X: $44.00 �')Q
This instrument prepared by and return to: John L. Roberts,Office of the Orange County Attorney .LLB
Box 8181,Hillsborough,NC 27278
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Revenue Stamps:$
NORTH CAROLINA
COUNTY OF ORANGE
WARRANTY DEED OF
CONSERVATION EASEMENT
This I ed of Conservation Easement(hereinafter"Conservation Easement") is made on this
ay of u( , 2014 by JASON G. DAVIS and REBECCA J. DAVIS, husband
and wife, having an ad ress at 2004 Abbeydale Lane,Fayetteville NC 28304(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 3.47 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.
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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,,ihe 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 Watershed—a protected water supply watershed for the Corporation
Lake and Lake Ben Johnson reservoirs. Another primary purpose of this Easement is to protect
the undeveloped nature of the Grantors' Easement Area and,in doing so, helping to protect the
high quality of that drinking water supply serving 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
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(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 § I I3A-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 July 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. Tile
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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.
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2. PROPERTY USES. Any activity on, or use of,the Easement Area inconsistent
with the purposes of this Conservation Easement is prohibited. The Easement Area shall be
maintained in its natural and open condition and restricted from any development that would
impair or interfere with the conservation values of the Easement Area. Without limiting the
generality of the foregoing,the following is a listing of activities and uses which are expressly
prohibited or which are expressly allowed. Grantors and Grantee have determined that the
allowed activities do not impair the conservation values of the Easement Area. Additional
retained rights of Grantors are set forth in Paragraph 3 below.
2.1 Subdivision and Conveyance. The Easement Area 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.
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RB5821 53 7
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 Harvestinjz and Forest Mana ems. 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
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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 Drainajze Patterns. There shall be no pollution of
surface water, natural water courses, lakes,ponds, marshes, subsurface water or any other water
bodies, nor shall activities be conducted on the Easement Area that would be detrimental to
water purity or, except as specified herein,that could alter the natural water level or flow in or
over the Easement Area. There shall be no alteration, depletion or extraction of surface water,
natural watercourses, lakes,ponds, marshes, subsurface water or any other water bodies on the
Easement Area. Diking, draining, filling or removal of wetlands is prohibited.
2.10 Signage. No signs or billboards or other advertising displays are allowed
on the Easement Area except as otherwise permitted herein and as follows: signs authorized by
Orange County zoning regulations whose placement, number and design do not diminish the
scenic character of the Easement Area may be displayed to identify the conservation values of
the Easement Area,to identify the Conservation Easement, to give directions, to advertise or
regulate permitted uses on the Easement Area and prescribe rules and regulations for educational
use of the Easement Area,to advertise the Easement Area for sale or rent,to post the Easement
Area against trespassers, and to identify the Grantor as fee simple owner of the Easement Area,
and to identify the Grantee as holder of the Conservation Easement.
2.11 No Biocides. There shall be no use of pesticides or biocides, including but
not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by
Grantee to control invasive species detrimental to the conservation values of the Easement Area.
2.12 No Dumping. There shall be no storage or dumping of trash, garbage,
abandoned vehicles, appliances, or machinery, or other unsightly or offensive material,
hazardous substance, or toxic waste on the Easement Area. There shall be no changing of the
topography through the placing of soil or other substance or material such as land fill or dredging
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
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the parties agree that such rights are terminated and extinguished, and may not be used on or
transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or
described, or to any other property.
3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantors retain the
following additional rights:
(a) Existing Uses. The right to undertake or continue any activity or use of the
Easement Area not prohibited by this Conservation Easement. Prior to making any change in
use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable
opportunity to determine whether such change would violate the terms of this Conservation
Easement. This determination by Grantee shall be made in writing.
(b) Transfer. The right to sell, give,mortgage, lease, or otherwise convey the
Easement Area is subject to the terms of this Conservation Easement.
4. GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the
purposes of this Conservation Easement,the following rights are granted to Grantee and the
following responsibilities are reserved to Grantee by this Conservation Easement:
(a) Right to Protect. The right to preserve and protect the conservation values of the
Easement Area and enforce the terms of this Conservation Easement.
(b) Right of Entry. Grantee, its employees,representatives, and agents and its
successors and assigns, have the right,after reasonable advance notice to Grantors
or with Grantor's prior verbal consent,to enter the Easement Area for the
purposes o£ (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.
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5. RESPONSIBILITIES OF GRANTORS AND GRANTEE NOT AFFECTED.
Other than as specified herein, this Conservation Easement is not intended to impose any legal or
other responsibility on the Grantors, or in any way to affect any existing obligation of the
Grantors as owners of the Easement Area. Among other things, this means:
(a) Taxes—The Grantors shall continue to be solely responsible for payment of all
taxes and assessments levied against the Easement Area. If Grantee is ever required to pay any
taxes or assessments on its interest in the Easement Area,the Grantors will reimburse Grantee
for the same.
(b) Upkeep and Maintenance—The Grantors retain all responsibilities and shall bear
all costs and liability of any kind related to the ownership, operation, and upkeep and
maintenance of the Easement Area, including the maintenance of adequate comprehensive
general liability insurance coverage. Grantee shall have no obligation for the upkeep or
maintenance of the Easement Area. Grantors will remain responsible for upkeep, maintenance,
and repairs to any impoundments located on the Easement Area.
(c) Liability and Indemnification—Grantors agree to indemnify and hold Grantee
harmless from any and all costs, claims or liability,including but not limited to reasonable
attorneys'fees arising from any personal injury, accidents,negligence or damage relating to the
Easement Area, or any claim thereof, unless due to the negligence of Grantee or agents of
Grantee, in which case liability shall be as provided by law. In addition, Grantors agree to
maintain liability insurance covering the Easement Area with the limits as follows: (i)$300,000
per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per
occurrence for property damage; and warrant that Grantee is and will remain a named insured on
Easement Area insurance policies covering the Easement Area. Grantors shall provide Grantee
with a certificate of insurance coverage within one year of 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
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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
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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 seg., 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
R85921 543 12119
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: To the Grantee:
Jason and Rebecca Davis Orange County Dept. of Environment,
141 Wateredge Lane Agriculture,Parks and Recreation
Sanford,NC 27332 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
RB5821 544 13!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
RB5821 545 14119
IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTORS:
Davis "
ecca . D is
Accepted:
GRANTEE:
ORA OUNTY,NORTH C ROLINA
By:
obs al
Orange ty Bo do ommissioners
ATTEST:
By:
Do Ana S. Baker, Clerk to the
Board of Commissioners
Page 14 of 15
ll���l�����l���l�l��Illillll I IlIIIIIIIIIII Ili
RB5821 546 15/19
Acknowledgments
NORTH CAROLINA
COUNTY OF ORANGE
I, a Notary Public in and for said County and State do
hereby certify that 'SZbor, . T4->.y-,5 and y-eLeCCA- J•. t�v:S 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 Z3"day of 014.
Han- e N ry Public
Notary Public
Orange County
North Carolina ;yyG11
My Commission Expires /e Tali (Notary's printed or typed name)
My commission expires:
NORTH CAROLINA
COUNTY OF ORANGE
I, o,'j �r� , 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 2-2- 'ay of J�_�� 2014.
OFFICIAL SEAL
NowyPuwrb Nom CNOMM Notary blic
oRMGE NT
COUY
DAVID HUNT
My Commission Exnk—
(Notary's printed or typed name)
My commission expires:
:71 20 I
Page 15 of 15
14���1���������1�1��illlllll I IIIIUIIIII II III
RB5821 547 15119
EXHIBIT A
Easement Area Legal Description
BEING all of that portion of property containing 3.47 acres labeled "CONSERVATION
EASEMENT"as shown on the map entitled"Conservation Easement on Property of Jason G.
Davis and Rebecca J. Davis"prepared by Steve F. Yuhasz as recorded in Plat Book /- ,
Page�...., Orange County Registry.
Portion of PIN 9856-56-5405
KC:3151453
RB5821 548 17119
Exhibit B
Summary of Baseline Documentation Report
Davis Conservation Easement
Orange County DEAPR(July 2014)
This is a summary of the Baseline Documentation Report for a Conservation Easement to be granted
to Orange County, North Carolina (Grantee)by Jason and Rebecca Davis(Grantors), for their property
having an address of 5400 Valley Wood Road,Hillsborough,NC 27278
Background
Jason and Rebecca Davis are owners of a 10.4-acre parcel of land(PIN 9856-56-5405)—a 3.47-acre
portion of which will be subject to the conservation easement. The property located northwest of the
Town of Hillsborough in Cheeks Township.Access to the property is from the entrance to the Davis
property at the north end of Valley Wood Road (a private road),which is located west of Highland
Farm Road (SR 1332),about one-sixth mile north of the intersection with Halls Mill Road (SR 1336).
The Davis's purchased the 10.4-acre lot in March 2011 (Deed Book 5128/443). The property is forested
with mixed hardwoods and pine except for approximately two acres of open grass field. The owners
recently cleared a portion of the woodlands (adjacent to the field)for construction of their future
residence. Another small area of trees was cleared along the southern property boundary,east of the
driveway entrance to the lot. Both clearings,however,are located outside of the Easement Area.
The Davis property is located in the Upper Eno River watershed,which the County has identified as a
priority watershed for conserving riparian buffers that help protect important aquatic habitat and
drinking water quality. Haley Creek forms the northern property boundary and flows westward, and
eventually joins East Fork Eno River—a principal tributary of the Eno River and a source of drinking
water for residents of Hillsborough and Orange County. The Easement Area is adjacent to land that is
protected by a conservation easement held Orange County in partnership with Mark and Lori Volpe.
Conservation Values
The Easement Area has important conservation values that will be protected by the Conservation
Easement. Those values are described below.
1) Natural area and wildlife habitat:It is a primary purpose of the Easement to protect the natural
area and wildlife habitat that exists on the property. The Easement Area is completely forested
(hardwood-pine mix)and slopes down to a narrow floodplain along Haley Creek,which flows to
the East Fork Eno River and soon after to the Eno River. This segment of the Eno River is
recognized as having aquatic habitat of national significance. Conserving this property will help
protect habitat for a variety of native plants and animals described on Pages 78-82 of the Inventory
of the Natural Areas and Wildlife Habitats of Orange County, North Carolina(2004).
The Easement Area is entirely forested with a mixture of mature hardwoods and a small patch of
pine on the east side. This forested area serves as a riparian buffer that extends westward into
other adjacent and nearby conservation properties.The woodlands support and help protect the
natural area and wildlife habitat for a variety of plant and animal species of importance to the
Grantor, Orange County and the people of North Carolina.
Page 1 of 2
II���{��LJ�����1�11�1��illlll I I IIIIIIIIIIIII lil
RB5B21 549 18119
2) Water supply watershed: It is a primary purpose of the easement to protect the largely
undeveloped nature of the Easement Area and the water that flows in Haley Creek along the
northern property boundary. The property is within the"critical area" of the Upper Eno River
Protected Watershed,a protected water supply watershed for the Corporation Lake and Lake Ben
Johnson reservoirs. Haley Creek flows westward into East Fork Eno River and soon thereafter to
the Eno River,a source of drinking water for residents of Hillsborough and Orange County.
The land's natural and wildlife habitat and its contribution to the protection of the downstream public
water supply,as well as to the open space and rural character of Cheeks Township,are collectively
referred to as the"conservation values"of the property.
Easement Summary
The purposes of this conservation easement are to a)ensure that the property will be retained forever,
in its predominantly natural,forested,and open space condition;b)to protect native plants and
animals,or plant communities on the property,while allowing certain limited uses on the property
that are compatible with and not destructive of the conservation values of the property;and c)to
prevent any use that will significantly impair or interfere with conservation values of the property.
The Conservation Easement will prohibit any future subdivision of the 3.47-acre Easement Area.
There are currently no structures or improvements within the Easement Area. The Conservation
Easement will allow the construction and maintenance of fences to identify property boundaries,
pedestrian trails(max.6 feet wide;min.30 feet from Haley Creek top of bank),one gazebo(max. 100
square feet),and two benches—all consistent with Paragraph 2 of the Conservation Easement.
The Conservation Easement will prohibit all commercial timbering of trees. Trees may be removed
only to control insects and disease,to prevent personal injury and property damage, to remove non-
native species,or to salvage wind-thrown timber. Forest management activities must be in
accordance with a Forest Management Plan and agreed to in advance by the Grantee.
All other development rights that are not specified and authorized in the deed of conservation
easement will be extinguished by the Conservation Easement.
List of Attachments(included pti1ji in the full Baseline Documentation Report)
A. Vicinity Map
B. Aerial Map(2013 photo) G. Natural Heritage Area site
C. Site Map(Exhibit C) descriptions and maps
D. Soils Map H. Survey Plat
E. Upper Eno River Watershed Map 1. Property Description
F. Topo and Hydrologic Map J. Photos of the Property
Page 2 of 2
RB5821 550 19/19
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Conservation Easement
Exhibit C
0 55 110 220 Feet
Q Davis property THIS MAP IS NOT A CERTIFIED SURVEY ,
AND HAS NOT BEEN REVIEWED BY A
® Easement area (3.47 acres) LOCAL GOVERNEMENT AGENCY FOR Orange County
Dept.of Environment,Agriculture,
Parcel boundary COMPLIANCE WITH ANY APPLICABLE Parks and Recreationn 7/2212014
— - Stream LAND DEVELOPMENT REGULATIONS. OC220KO:lgishome\gisgprojeM
land resourceWatResCE Davis.mxd