HomeMy WebLinkAboutAgenda - 12-03-2007-3dORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: December 3, 2007
Action Agenda
Item No. 3 ^ C~
SUBJECT: Resolution of Approval -Contribution of Funds for Land Acquisition and
Acceptance of Conservation Easement from the Eno River Association
DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N)
Conservation
ATTACHMENTS INFORMATION CONTACT:
Resolution of Approval David Stancil, 245-2590
Location Map Rich Shaw, 245-2591
Site Map
Draft Agreement (County-ERA)
Draft Conservation Easement
PURPOSE: To consider a resolution authorizing an agreement between the County and the
Eno River Association for the County contribution of funds for the purchase of the Eno
Confluence property (110 acres) and the acceptance of a conservation easement for the
same property.
BACKGROUND: Orange County is collaborating with the Eno River Association on the
acquisition and permanent protection of a 110-acre tract of land along the Eno River in
northwestern Orange County. The property is located west of Highland Farm Road,
approximately one mile south of the intersection with Efland-Cedar Grove Road. The owner
is Ms. Joanne Stollings of Burlington.
The "Eno Confluence Property" has 2.1 miles bordering the East and West Forks of the Eno
River, and is recognized as a high priority site for conservation purposes. Sections of the
river support aquatic habitat of national significance. In addition, the site includes remains of
the former Smith Mill. Acquisition of high-priority lands in the Upper Eno Watershed critical
area is identified in the Lands Legacy Action Plan adopted far FY 2006-08.
In March 2007, the County and the Eno River Association submitted a joint grant application
to the NC Clean Water Management Trust Fund (CWMTF) for state funds needed to
purchase the Stollings property. The application included a pledge from Orange County to
contribute up to $250,000 for the purchase. On September 10, the CWMTF awarded
$685,000 toward the acquisition, including a portion of the transaction costs.
The Eno River Association has negotiated a contract to purchase the property using a
combination of State, local government, and private funds. In addition to the CWMTF grant,
the Association has been awarded $110,470 from the City of Raleigh through the Upper
Neuse Clean Water Initiative. The Association requests $250,000 from Orange County and
will raise the balance of funds from its membership and other private sources.
The Eno River Association intends to acquire the property and manage it for resource
conservation and low-impact public recreation and education.
2
Orange County's interests in the property will be represented through a conservation
easement granted by the Association to the County, thereby adding perpetual use restrictions
intended to protect the future use of the property as slow-impact park and natural area. The
State of North Carolina will also hold a conservation easement on a portion of the property
within 300 feet of the Eno River corridors.
Upon approval by the Board, a closing on the property purchase is expected to occur on
December 18, 2007. The conservation easement would be granted to the County by mid- to
late 2008 but not later than December 31, 2008 as set forth in the attached agreement
between the County and the Eno River Association.
FINANCIAL IMPACT: The Association has a contract to purchase the property for
$1,104,700 ($10,000/acre) plus option fees totaling up to $259,128 and payable over athree-
year period ending October 2009. Funding for the purchase would come from the NC Clean
Water Management Trust Fund ($656,400), the Upper Neuse Clean Water Initiative
($110,470), Orange County ($250,000), and $132,110 in private funds raised by the Eno
River Association. An additional estimated $13,000 in transaction and other project costs
would be paid by the Eno River Association and state Clean Water grant.
Because the Association intends to close by December 18, 2007, the option fees will be
reduced significantly with an anticipated savings of approximately $190,000. The total
project cost, therefore, would be approximately $1,187,000.
The County's portion of the purchase price would be $250,000 (or $2,273/acre). Funds
would be paid from the County's 2001 Parks and Open Space bond (Lands Legacy). A total
of $5.25 million has been appropriated from this source, with $2.42 million spent thus far. A
capital project ordinance will be presented at a subsequent meeting for this purchase.
Orange County would be granted a conservation easement in exchange for its contribution of
funds for the land acquisition. The attached agreement stipulates that the Eno River
Association will grant a conservation easement to the County the sooner of the closing on the
NC Clean Water Management Trust Fund grant or December 31, 2008.
RECOMMENDATION: The Manager recommends that the Board approve the resolution
authorizing the following:
a) the County's contribution of $250,000 toward the purchase of the Eno Confluence
property with a transfer of funds for a closing on the purchase expected to occur on or
about December 18, 2007; and
b) the County entering into an agreement with the Eno River Association that stipulates
the Eno River Association will grant a conservation easement to the County on or
before December 31, 2008; and
c) the Chair and the Clerk to sign said agreement, subject to final review by staff and the
County Attorney; and
d) the Chair and the Clerk to sign the conservation easement agreement, subject to final
review by staff and the County Attorney.
3
ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION
Authorization to Accept a Conservation Easement
from the Eno River Association for the Eno Confluence Property
WHEREAS, Orange County has adopted goals promoting the preservation of natural areas,
wildlife habitat, farmland and open space in the County; 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, Orange County and the Eno River Association, a private non-profit land trust
with similar conservation goals, have agreed to collaborate on the acquisition and protection
of riparian buffers and aquatic habitat in the Upper Eno watershed; and
WHEREAS, Orange County and the Eno River Association were awarded a grant from the
NC Clean Water Management Trust Fund to protect a 110-acre property located at the
confluence of the East and West Forks of the Eno River ("Eno Confluence"); and
WHEREAS, the Eno River Association intends to acquire the property and grant a
conservation easement over the entire property to Orange County, which would protect the
property for future low-impact recreation and educational uses; and
WHEREAS, Orange County and the Eno River Association have generally agreed on the
language of said conservation easement to be granted to the County; and
WHEREAS, the Eno River Association intends to execute a promissory note obligating the
Association to repay the County's funds in the event that the Association fails to execute and
record a conservation easement acceptable to the County; and
WHEREAS, the joint acquisition and protection of this property is exemplary of the County's
ongoing collaboration and partnership with the Eno River Association;
NOW, THEREFORE, BE IT RESOLVED that that the County agrees to release funds in the
amount of $250,000 for the purchase of the Eno Confluence property, which will be owned by
the Eno River Association.
BE IT FURTHER RESOLVED that the Orange County Board of Commissioners agree to the
acceptance of a conservation easement from the Eno River Association, with the
understanding that said easement will be granted to the County on or before December 31,
2008.
BE IT FURTHER RESOLVED that the Orange County Board of Commissioners agree to
execute an agreement with the Eno River Association that stipulates the specific terms of its
collaboration on this project.
This, the 3rd day of December, 2007
Chair
Orange County Board of Commissioners
Donna Baker, Clerk to the Board
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NORTH CAROLINA
ORANGE COUNTY
AGREEMENT
THIS AGREEMENT is made and entered into as of this the day of December,
2007, by and between the ASSOCIATION FOR THE PRESERVATION OF THE ENO
RIVER VALLEY, INC., hereinafter referred to as "the Association," and ORANGE
COUNTY, NORTH CAROLINA, hereinafter referred to as "the County."
RECITALS
The Association has contracted to purchase a tract of land located in Cheeks Township at
the confluence of the East and West Forks of the Eno River consisting of approximately 110
acres of mixed wetlands, woodlands, and fields, which it intends to use in perpetuity for
conservation and education purposes, including the preservation of native plant and animal
species and habitats, water quality protection, and low impact recreation such as hiking, bird
watching and other recreation and education uses not inconsistent with protection of the
conservation values of the property. Reference is hereby made to that deed recorded in Book
1796, Page 466 of the Orange County Registry for a more particular description of the property,
Orange County PIN 9856-36-2947. Closing on the purchase of the property by the Association
is anticipated to occur prior to December 31, 2007.
The Association and the County jointly submitted an application to the Clean Water
Management Trust Fund for grant funding to assist in purchasing the property, and have been
awarded grant funds in the amount of $685,000.00. In exchange for receipt of these grant funds
the Association will convey to the State of North Carolina a Conservation Easement on those
portions of the property lying within 300 feet of all streams located on or adjacent to the
property. Transfer of funds from the Clean Water Management Trust Fund to the Association
and recordation of the Conservation Easement to the State is anticipated to occur in mid to late
2008.
Pending receipt of grant funds from the Clean Water Management Trust Fund, and in
order to close on the purchase of the property prior to December 31, 2007, the Association has
obtained a loan from The Conservation Fund in the amount of $656,400.00, which is the portion
of the aforesaid grant from the Clean Water Management Trust Fund dedicated to the purchase
cost. In exchange for receipt of the loan funds the Association will execute a Promissory Note in
favor of The Conservation Fund obligating the Association to repay The Conservation Fund
upon receipt of the Clean Water Management Trust Fund grant funding. The Promissory Note
will be secured by a first lien Deed of Trust recorded contemporaneously with the recordation of
the Association's Deed from its Seller.
g
NOW THEREFORE, FOR AND IN CONSIDERATION OF THE BENEFITS TO
EACH OF THE PARTIES AS SET FORTH IN THIS AGREEMENT, THE
ASSOCIATION AND THE COUNTY AGREE AS FOLLOWS:
1. In recognition of the benefits to the citizens of Orange County of maintaining the property in
the foregoing manner as conservation open space, the County agrees to contribute the sum of
$250,000.00 toward the purchase of the property by the Association.
2. In exchange for receipt of these funds the Association will convey to the County a
Conservation Easement on the entire property, which will be recorded contemporaneously with
and following the Conservation Easement conveyed to the State of North Carolina; provided that
the Conservation Easement to be conveyed to Orange County shall be executed and recorded no
later than December 31, 2008.
3. Pending recordation of the aforesaid Conservation Easement to the County, in exchange for
receipt of the County's funds at closing the Association will execute a Promissory Note in favor
of the County obligating the Association to repay the County's funds in the event that the
Association fails to execute and record a Conservation Easement acceptable to the County as
described above. The Promissory Note will be secured by a second lien Deed of Trust recorded
contemporaneously and following The Conservation Fund's Deed of Trust.
4. Upon the recordation of the Orange County Conservation Easement described above, the
terms of the Promissory Note shall be deemed to be satisfied, and the County will cancel the lien
of its Deed of Trust.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its duly authorized official, to be effective from the day and year first
above written.
ASSOCIATION FOR THE PRESERVATION OF THE
ENO RIVER VALLEY, INC.
By:
President
ORANGE COUNTY, NORTH CAROLINA
By:
Chair, Orange County Board
of Commissioners
ATTEST:
Donna S. Baker
Clerk to the Board of
Commissioners
(o
Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
This instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hargrave & Peek, P.C.,
P.O. Drawer 1529, Hillsborough, NC 27278
NORTH CAROLINA
COUNTY OF ORANGE
WARRANTY DEED OF
CONSERVATION EASEMENT
This Deed of Conservation Easement (hereinafter "Conservation Easement") is made on this
day of , 2007 by THE ASSOCIATION FOR THE PRESERVATION OF
THE ENO RIMER VALLEY, INC., a North Carolina nonprofit corporation, having an address
of 4419 Guess Road, Durham, NC 27712 (hereinafter "Grantor") and ORANGE COUNTY,
NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278
(hereinafter "Grantee" or "the Grantee").
The designation Grantor and Grantee as used herein shall include said parties,. their heirs,
successors and assigns, and shall include singular, plural, masculine, feminine or neuter
pronouns as required by context.
RECITALS
A. The Grantor is the sole owner in fee simple of certain. real property located in
Cheeks Township and Grove Township, Orange County, North Carolina, and described on
Exhibit A hereto; which is incorporated herein by reference. The property, comprising
approximately 110 acres, is hereinafter referred to as "the Easement Area." The Easement Area
includes improvements, which are shown on Exhibit C, attached hereto and incorporated herein.
B. The Grantee is a body politic and corporate, a political subdivision of the State of
North Carolina, with powers prescribed in Chapter 153A pf the North Carolina General Statutes.
C. To the extent practicable, the Grantor and Grantee wish to maintain the Easement
Area as a combination of woodland and open space suitable as habitat for the native flora and
fauna of the North Carolina Piedmont, and to protect the quality of water nanming off from this
Page 1 of 17
Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
land and into 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 offish, wildlife, or plants, or similar
ecosystem," as that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in
regulations promulgated thereunder.
The Easement Area is a significant natural area that qualifies in its present condition as a
"...relatively natural habitat offish, 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 includes land within a zone designated by Orange County as a
"critical area" of a protected water supply watershed for the Corporation Lake Reservoir and
Lake Ben Johnson Reservoir. Another primary purpose of this Easement is to protect the largely
undeveloped nature of the Grantor's Property and, in doing so, helping to protect the high quality
of that chinking water supply serving the people of 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
Zoning Ordinance. It is a fi~.rther purpose of this Easement to help to protect the rural character
and open space of northern Cheeks Township.
The natural and wildlife habitat resources of the Property, and its contribution to the
protection of the area water supply and rural character, and the other conservation interests
described herein are collectively referred to as the "conservation values" of the Easement Area
The Grantor and Grantee agree that the current uses of and improvements to the
Easement Area are consistent with the conservation purposes of this Conservation Easement.
The conservation purposes of this easement, notwithstanding anything to the contrary contained
herein, are also recognized by, and this Conservation Easement will also serve, the following
clearly delineated governmental conservation policies:
(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 17
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
(2) the Land Use Element of the Orange County Comprehensive Plan (adopted
September 2, 1981 as amended) with its goal of conserving and protecting Orange County's
significant "Resource Protection Areas" from adverse development impacts, including county
natural areas, wildlife corridors and lands placed by individual property owners into conservation
easements; and
(3) the Orange County Lands Legacy Action Plan, which was adopted by the
Orange County Board of Commissioners on September 12, 20076, and which recognizes the
need to protect riparian buffers in the critical area of the Upper Eno protected watershed; and
(4) 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
(5) 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 zoning of the property by Orange County as Agricultural Residential.
D. The characteristics and conservation values of the Easement Area, its current use
and state of improvement, are described in a report entitled "Baseline Report for the Stollings
Property," dated 2008 (hereafter "the Baseline Report") prepared by Orange
County ERCD for the Grantor, of which a summary is attached as Exhibit B to this Conservation
Easement. The Grantor worked with the Grantee to ensure that the report is a complete and
accurate description of the Easement Area as of the date of this Conservation Easement. It will
be used by the Grantor and Grantee to assure that any future changes in the use of the Easement
Page 3 of 17
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
Area will be consistent with the terms of this Conservation Easement. However, the Baseline
Report is not intended to preclude the use of other evidence to establish the present condition of
the Easement Area if there is a question about its use.
E. The Grantor and Grantee have the common purpose of conserving the
above-described conservation values of the Easement .Area in perpetuity, and the State of North
Carolina has authorized the creation of Conservation Easements pursuant to the terms of the
Uniform North. Carolina Conservation and Historic Preservation Agreements Act, NCGS §
121-34 et seq., which provides that conservation easements are "interests in land," which may be
effective "perpetually;" which provides for the enforceability of restrictions, easements,
covenants or conditions "...appropriate to retaining land or water areas predominantly in their
natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses...;" and
which provide for tax assessment of lands subject to such agreements "on the basis of the true
value of the land and improvements less any reduction in value caused by the agreement"; and
the Grantor and Grantee wish to avail themselves of the provisions of those laws.
NOW, THEREFORE, the Grantor, as an absolute gift of no monetary consideration, but
in consideration of the facts recited above and of the mutual covenants, terms, conditions and
restrictions contained herein, hereby gives, grants and conveys unto the Grantee, its successors
and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a
Conservation Easement over the Easement Area of the nature and character as follows:
With the exception of those rights retained herein, Grantor conveys to Grantee all
development rights that are now or hereafter allocated to, implied, reserved or inherent in the
Easement Area, and the parties agree that such rights are terminated and extinguished, and may
not be used on or transmitted to any portion of the Easement Area, as it now or hereafter may be
bounded or described, or to any other property.
1. PURPOSE. As outlined in the Recitals above, the purposes of this Conservation
Easement are to ensure that the Easement Area will be retained forever, predominantly in its
natural, forested, and open space condition; to protect native plants and animals, or plant
communities on the Easement .Area, while allowing certain limited uses on the Easement Area
that are compatible with and not destructive of the conservation values of the Easement Area;
and to prevent any use of the Easement Area that will significantly impair or interfere with
conservation values or interests of the Easement Area.
Grantor will not perform, nor knowingly allow others to perform, any act on or affecting
the Easement Area that is inconsistent with the purposes of this Conservation Easement.
However, unless otherwise specified below, nothing in this Conservation Easement shall require
the Grantor to take any action to restore the condition of the Easement Area after any act of
nature or other event over which Grantor had no control. Grantor understands that nothing in
this Conservation Easement relieves them of any obligation or restriction on the use of the
Easement Area imposed by law.
Page 4 of 17
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
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. Grantor and Grantee have determined that the
allowed activities do not impair the conservation values of the Easement Area. Additional
retained rights of Grantor are set forth in Paragraph 3 below.
2.1 Subdivision and Conveyance. The Easement Area consists of one 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. Grantor
agrees for itself, its successors and assigns, that in the event it transfers 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. The Grantor's rights to construct or reconstruct buildings
and other improvements are described in subparagraphs (a) through (d) below. Any construction
or reconstruction not permitted below is prohibited. Before undertaking any construction or
reconstruction that requires advance permission, the Grantor shall notify Grantee and obtain
written permission. 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 -Existing fences may be repaired and replaced, and new fences
may be built on the Property to identify property boundaries and for
agricultural, grazing, and horticultural uses as authorized in Section 2.4 of
this Conservation Easement without any further permission of Grantee.
(b) Existing Structures & Improvements -The remains of former residential
structures and agricultural outbuildings exist in two locations identified as
"Building Envelope" in Exhibit C. Existing structures and improvements
may be repaired, enlarged and replaced at their current locations within the
"Building Envelope" without further permission from the Grantee.
(c) New Structures & Improvements --New structures and improvements may
be built without any further permission of Grantee provided they are
located in one of the two locations marked as "Building Envelope" on
Exhibit C.
Any new buildings, structures or improvements proposed for locations
outside of a "Building Envelope" shall be for educational or recreational
purposes only and may be built only with the advance written permission
Page 5 of 17
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
of the Grantee. The Grantee shall give such permission within a
reasonable time if it determines that the proposed building, structure or
improvement would not diminish or impair the Conservation Values of the
Easement Area or otherwise be inconsistent with this Conservation
Easement.
(d) Utility Services and Septic Systems -Installation, maintenance, repair,
replacement, removal and relocation of electric, gas, and water facilities,
sewer lines and/or other public or private utilities, including telephone or
other communication services over or under the Easement Area for the
purpose of providing electrical, gas, water, sewer, or other utilities to serve
improvements on the Easement Area permitted herein, and the right to
grant easements over and under the Easement Area for such purposes, is
permitted. Grantors shall not permit or grant easements for utility
transmission or distribution facilities or systems without the written
consent of the Grantee. Maintenance, repair or improvement of a septic
system(s) or other underground sanitary system that exists on the
Easement Area at the time of this Conservation Easement, or the
construction of a septic or other underground sanitary system, for the
benefit of any of the improvements permitted herein, is permitted. All
other utilities are prohibited on the Easement Area. Cellular
communication towers or structures are also prohibited on the Property.
(e) Pedestrian Trails -Pedestrian trails maybe constructed to support the
recreational and educational uses of the Easement Area permitted by this
Conservation Easement. Such trails must be constructed of a pervious
surface and in accordance with best management practices to minimize
soil erosion and water quality impacts, may not be more than six feet (6')
wide. Grantor reserves the right to construct no more than three (3)
pedestrian bridges to cross over streams and no more than 200 feet of
boardwalk as part of a future trail system, subject to Grantee approval.
2.4 Recreational Use. Consistent with the purpose of and the limitations
contained in this Conservation Easement, Grantor shall have the right to engage in and permit
others, whether or not for consideration, to engage in recreational uses of the Easement Area,
including, but not limited to, hiking, picnicking, hunting and fishing, and other recreational uses
that require no buildings, facilities, surface alteration or other development of the land. Grantor
reserves the right to promulgate and enforce reasonable rules and regulations for all activities
incident to 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.
2.5 Educational Use. Grantor reserves the right to engage in and permit others
to engage in educational uses in the Easement Area not inconsistent with this Conservation
Page6of17
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
Easement, and the right of access to the Easement Area for such purposes including organized
educational activities such as site visits and observations.
2.6 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and
horticultural uses of the Easement Area are allowed within the locations identified as "Agricultural
Use Envelope" identified in Exhibit C to this Conservation Easement. Agricultural, grazing, and
horticultural uses of any other portion of the Easement Area is prohibited.
2.7 Forest Vegetation Manage. Commercial timbering of trees within the
Easement Area is prohibited. Grantor shall have the right to a) cut and remove diseased trees,
shrubs, or other plants; b) cut and remove invasive (usually non-native) trees, shrubs and other
plants; c) cut and remove undesirable early succession trees and replant with more desirable
hardwood species; and d) to cut firebreaks. Trees may also be removed to prevent personal
injury and property damage, or to salvage wind-thrown timber. 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 ofnon-native animals, or disturbance or change in the natural
habitat in any manner. All forest management activities must be pursuant to a 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.
2.8 Excavation. There shall be no filling, excavation, dredging, mining or
drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no
change in the topography of the land in any manner except as necessary to allow a) the
construction of the improvements permitted herein, b) the maintenance of hiking trails permitted
herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal
ecosystems native to the locality.
2.9 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 Natural Resource Restoration and Enhancement Activities.
Notwithstanding any terms contained within this Conservation Easement, Grantor may engage or
contract others to engage in any activity designed to repair, restore, or otherwise enhance the
natural resources found or once present on the Easement Area, such as the restoration of the
riparian forest corridors, so long as such activities are consistent with the Conservation Values of
this Conservation Easement and consistent with a management plan prepared for this property
and approved in advance by the Grantee.
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2.11 Si a e. 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.
2.12 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,
and except as needed in the existing agricultural field.
2.13 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.
2.14 Predator Control. Grantor shall have the right to control, destroy, or trap
predatory and problem animals that pose a material threat to livestock and/or 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.
2.15 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.
2.16 Development Rights. Grantor conveys to Grantee all development rights
that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and
the parties agree that such rights are terminated and extinguished, and may not be used on or
transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or
described, or to any other property.
3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the
following additional rights:
(a) Existing Uses. The right to undertake or continue any activity or use of the
Easement Area not prohibited by this Conservation Easement. Prior to making any change in
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use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable
opporhanity 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 Axea and enforce the terms of this Conservation Easement.
(b) Right of Entry. Grantee, its employees, representatives, and agents and its
successors and assigns, have the right, after reasonable advance notice to Grantor
or with Grantor's prior verbal consent, to enter the Easement Area for the
purposes of: (a) inspecting the Easement Area to determine whether the Grantor,
its 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 Grantor.
Grantor agrees that all monitoring activity, inventory and assessment work or
other natural resource research conducted by Grantor or at Grantor's direction or
with Grantor's permission shall be reported to Grantee.
(d) Management of Exotics and Invasive Species. The right, but not the obligation, to
control, manage or destroy exotic non-native species or invasive species of plants
and animals that threaten the conservation values of the Easement Area. Grantee
will consult with Grantor prior to implementing any such control activities.
5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED.
Other than as specified herein, this Conservation Easement is not intended to impose any legal or
other responsibility on the Grantor, or in any way to affect any existing obligation of the Grantor
as owner of the Easement Area. Among other things, this means:
(a) Taxes -The Grantor shall continue to be solely responsible for payment of all
taxes and assessments levied against the Easement Area. If Grantee is ever required to pay any
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
taxes or assessments on its interest in the Easement Area, the Grantor will reimburse Grantee for
the same.
(b) LT~keep and Maintenance -The Grantor 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. Grantor will remain responsible for upkeep, maintenance,
and repairs to any impoundments located on the Easement Area.
(c) Liability and Indemnification -Grantor agrees to indemnify and hold Grantee
harmless from any and all costs, claims or liability, including but not limited to reasonable
attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the
Easement Area, or any claim thereof, unless due to the negligence of Grantee or agents of
Grantee, in which case liability shall be as provided by law. In addition, Grantor agrees to
maintain liability insurance covering the Easement Area with the limits as follows: (i) $300,000
per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per
occurrence for property damage; and warrant that Grantee is and will remain a named insured on
Easement Area insurance policies covering the Easement Area. Grantor shall provide Grantee
with a certificate of insurance coverage on the effective date of this Conservation Easement and
within 10 days of each insurance renewal date.
6. ACCESS. No right of access by the general public to any portion of the
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 Grantor or with the Grantor's
prior verbal consent, the Grantee shall have the right to enter the Easement Area for the purpose
of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall
have the right to prevent violations and remedy violations of the terms of this Conservation
Easement through judicial action, which shall include, without limitation, the right to bring
proceedings in law or in equity against any party or parties attempting to violate the terms of this
Conservation Easement. Except when an ongoing or imminent violation could irreversibly
diminish or impair the conservation values of the Easement Area, the Grantee shall give the
Grantor written notice of the violation and thirty (30) days to cure the violation, before
commencing any legal proceedings. The Grantee may obtain an injunction to stop a violation or
a threatened violation, temporarily or permanently. The parties agree that a court may issue an
injunction or order requiring the Grantor to restore the Easement Area to its condition prior to the
violation, as restoration of the property may be the only appropriate remedy. In any case where a
court finds that a violation has occurred, the Grantor shall reimburse the Grantee for all its
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
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 fmds that there was a complete
absence of a justiciable issue of either law or fact raised by the losing party, the court may award
a reasonable attorney's fee to the prevailing party as provided by law. The failure of the Grantee
to discover a violation or to take immediate legal action shall not bar it from doing so at a later
time for that violation or any subsequent violations.
(b) Grantee shall not bring any action against Grantor for any injury or change to the
Easement Area caused by third parties, or resulting from causes beyond the Grantor's control,
including, without limitation, fire, flood, storm and naturally caused earth movement, or from
any prudent action taken in good faith by the Grantor under emergency conditions to prevent,
abate, or mitigate significant injury to life, damage to the Easement Area or harm to the
Easement Area resulting from such action.
8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer,
assign, convey, or otherwise to co-hold the Conservation Easement created by this Deed to any
public agency or private nonprofit organization that, at the time of transfer, is a qualified
organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under
NCGS 121-34 et seq., provided the agency or organization expressly agrees to assume the
responsibility imposed on Grantee by this Deed. If the Grantee ever ceases to exist or no longer
qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court
with jurisdiction shall transfer this Conservation Easement to another qualified organization
having similar purposes that agrees to assume the responsibility imposed by this Conservation
Easement.
9. TRANSFER OF EASEMENT AREA. The Grantor agrees to incorporate by
reference the terms of this Conservation Easement in any deed or other legal instrument by
which it transfers or divests itself of any interest, including leasehold interest, in all or a portion
of the Easement Area. The Grantor shallnotify the Grantee in writing at least thirty (30) days
before conveying the Easement Area, or any part thereof or interest therein. Failure of Grantor
to do so shall not impair the validity of this Conservation Easement or limit its enforceability in
any way.
10. AMENDMENT OF EASEMENT. This Conservation Easement maybe
amended only with the written consent of Grantor and Grantee. Any such amendment shall be
consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of
the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any
such amendment shall also be consistent with the Uniform Conservation and Historic
Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., or any regulations promulgated
pursuant to that law. The Grantor and Grantee have no right or power to agree to any
amendment that would affect the enforceability of this Conservation Easement.
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Eno Confluence Conservatian Easement Nov. 13, 2007 draft (BOCC)
11. PROCEDURE IN THE EVENT OF TERNHNATION OF
CONSERVATION EASEMENT. If it determines that conditions on or surrounding the
Easement Area change so much that it becomes impossible to fulfill the conservation purposes of
this Conservation Easement, a court with jurisdiction may, at the joint request of both the
Grantor and the Grantee, terminate or modify the Conservation Easement created by this Deed in
accordance with applicable State law. If the Conservation Easement is terminated and the
Easement .Area is sold, then as required by Section 1.1 70A-14(g)(6) of the IRS regulations, the
Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus
any amount attributed to new improvements made after the date of the conveyance, which
amount shall be reserved to Grantor), equal to the ratio of the appraised value of this
Conservation Easement to the unrestricted fair market value of the Easement Area, as these
values are determined on the date of this Conservation Easement, subject to any applicable law
which expressly provides for a different disposition of the proceeds.
All termination related expenses, including reasonable attorney fees, incurred by the
Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
12. PROCEDURE IN THE EVENT OF CONDEMNATION OR EMINENT
DOlNIAIN. Grantor and Grantee recognize that the partial sale of this Conservation Easement
gives rise to a property right, immediately vested in the Grantee, with a fair market value equal
to the proportionate value that the Conservation Easement bears to the value of the Easement
Area prior to the restrictions imposed by the Conservation Easement. Accordingly, if any
condemnation or eminent domain action shall be taken, on all or part of the Easement Area, by
any authorized authority, said authority shall be liable to the Grantee for the value of the property
right vested in the Grantee at the time of the signing of this Conservation Easement.
If condemnation or a taking by eminent domain of a part of the Easement Area or the
entire Easement Area by a public authority renders it impossible to fulfill any of the conservation
purposes of this Conservation Easement on all or part of the Easement Area, this Conservation
Easement may be terminated or modified accordingly through condemnation proceedings.
Grantor and Grantee agree that this Conservation Easement is a currently vested real property
right with a value equal to the proportionate value of the Conservation Easement to the
unencumbered value of the fee, as of the date of this Conservation Easement. If the
Conservation Easement is terminated or modified and any or all of the Easement Area is sold or
taken for public use, then, as required by Section 1.170A-14(g)(6) of the IRS regulations, the
Grantee shall be entitled to a percentage of gross sale proceeds or condemnation award (minus
any amount attributed to new improvements made after the date of the conveyance, which
amount shall be reserved to Grantor), equal to the ratio of the appraised value of this
Conservation Easement to the unrestricted fair market value of the Easement Area, as these
values are determined on the date of this Conservation Easement, subject to any applicable law
which expressly provides for a different disposition of the proceeds.
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
If, however, after the condemnation or eminent domain proceedings, a court of
jurisdiction does not include in the just compensation awarded as a result of the taking, the
amount of the Conservation Easement value, then the Grantor shall not be responsible to share
any proceeds awarded.
All condemnation related expenses, including reasonable attorney fees, incurred by the
Grantor and the Grantee ,shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
13. INTERPRETATION. This Conservation Easement shall be interpreted under
the laws of Noi th Carolina, resolving any ambiguities and questions of the validity of specific
provisions as to give maximum effect to its conservation purposes.
14. TITLE. The Grantor covenants and represents that it is the sole owner and seized
of Easement Area in fee simple and have good right to grant and convey this Conservation
Easement; that the Easement Area is free and clear of any mortgages not subordinated to this
Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits
derived from and arising out of this Conservation Easement, subject to any easements or
encumbrances of record.
15. NOTICES. Any notices required by this Conservation Easement shall be in
writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee,
respectively, at the following addresses, unless a party has been notified by the other of a change
of address.
To the Grantor:
Eno .River Association
4419 Guess Road
Durham, NC 27712
To the Grantee:
Orange County Environment and
Resource Conservation Department
Orange County, North Carolina
P.O. Box 8181
Hillsborough, NC 27278
16. ENVIRONMENTAL CONDITION. The Grantor warrants that it has no actual
knowledge of a release or threatened release of hazardous substances or wastes on the Easement
Area.
17. SEVERABILITY. If any provision of this Conservation Easement is found to be
invalid, the remaining provisions shall not be altered thereby..
18. PARTIES. Every provision of this Conservation Easement that applies to the
Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns,
and all other successors as their interest may appear. This Conservation Easement shall not be
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
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. SITSSEQUENT LIENS ON PROPERTY. No provisions of this Conservation
Easement should be construed as impairing the ability of Grantor to use the Easement Area as
collateral for subsequent borrowing, provided that any mortgage or lien arising from such a
borrowing is made subordinate to this Conservation Easement.
22. EXIIIBITS AND DOCUMENTATION.
(a) Documentation Re o~rt. The parties acknowledge that the Baseline 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. A
summary is attached as Exhibit B.
(b) Future Construction. Exhibit C is a GIS map and sketch showing the
configuration of the property owned by the Grantor.
(c) Exceptions to Title. Exhibit D is a list of encumbrances deemed by the Grantee
as acceptable exceptions to [more here].
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.
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[The remainder of this page is intentionally left blank. Signature page follows.]
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Eno Confluence Conservation Easement Nov. 13, 2007 draft (BOCC)
IN WITNESS VVI-~REOF, the Grantor and Grantee, intending to legally bind
themselves, have set their hands. on the date first written above.
GRANTOR:
ATTEST
Accepted:
ASSOCIATION FOR TIC PRESERVATION OF THE ENO RIVER VALLEY, INC.
By:
Holly F. Reid, President
Emily Herbert, Secretary
GRANTEE:
ORANGE COUNTY, NORTH CAROLINA
By:
ATTEST:
By:
Donna S. Baker, Clerk to the
Board of Commissioners
Moses Carey Jr., Chair
Orange County Board of Commissioners
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Eno Confluence Conservation Easement
Acknowledgments
NORTH CAROLINA
COUNTY OF
Nov. 13, 2007 draft (BOCC)
I, a Notary Public of the County and State aforesaid,
certify that Holly F. Reid personally came before me this day and acknowledged that she is
President of the Board of Directors for the Association for the Preservation of the Eno River
Valley, Inc., a corporation existing under the laws of the State of North Carolina, party to this
Agreement, and acknowledge this Indenture to be her act and deed and the act and deed of said
corporation; that the signature of the President thereto is in her own proper handwriting and the
seal affixed is the common and corporate seal of said corporation, and that her act of sealing,
executing, acknowledging and delivering said Indenture was duly authorized by a resolution of
the Board of Directors of said corporation.
Witness my hand and official stamp or seal this the day of , 200_.
Notary Public
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
My commission expires:
day of , 200_.
Notary Public
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