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HomeMy WebLinkAboutAgenda - 01-23-2007-6aORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: January 23, 2007 Action Agenda Item No. (o ' q SUBJECT: Resolution for Acceptance of Conservation Easement Donation (Penny) DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENTS INFORMATION CONTACT: Draft Resolution David Stancil; 245-2590 Location Map Rich Shaw, 245-2591 Project Area Map Site Map Draft Conservation Easement PURPOSE: To consider a resolution approving the acceptance of a conservation easement for land owned by Wade and Carolyn Penny to protect open space and wildlife habitat adjacent to the New Hope Creek corridor. BACKGROUND: The Lands Legacy Program works with landowners and other conservation partners to protect the County's most important natural and cultural resources. Through this program, the County uses a variety of voluntary means to protect lands, including conservation agreements with private landowners. Protected lands include riparian buffers, natural areas and wildlife habitat, prime farmland, and historic/cultural sites. Orange County has protected 1,700 acres since the inception of Lands Legacy in April 2000. In 1992, Orange County, Chapel Hill, Durham County and City of Durham adopted the New Hope Corridor Open Space Master Plan, which called for the preservation of lands along New Hope Creek as it traverses from central Orange County to Jordan Lake. One of the priorities identified in the New Hope Master Plan, and in the current Lands Legacy Action Plan, is a one-mile segment of New Hope Creek from Erwin Road south to the Durham County line. A planned New Hope Preserve would protect a land corridor with public footpaths that would link Duke Forest trails to planned trails in Durham County. Orange County (in cooperation with the Triangle Land Conservancy and the State of NC) recently acquired 26.5 acres from the Trinity School, which was the final section of land needed to complete the planned public trail corridor along New Hope Creek. The attached project area map shows the acquisitions that have occurred in this area since 2002. Wade and Carolyn Penny are long-time owners of property along Pickett Road in both Orange and Durham counties. They were strong proponents of the New Hope Master Plan adoption in the early 1990s and have been in the forefront of subsequent land conservation efforts in their immediate vicinity. In June 2006, the Pennys sold 22 acres of their New Hope 2 Creek property to Orange County for conservation purposes. This past December, the Pennys also donated a conservation easement on the remaining 29 acres that they continue to own in Durham County. That land includes their long-time residence and another historic structure located east of Pickett Road. The Pennys continue to own 7 acres of land in Orange County, which is adjacent to the County's New Hope Preserve on one side and another 29 acres of that the Pennys own across the line in Durham County. The 7 acres is undeveloped and there are no structures. The Pennys wish to protect the seven acres with a permanent conservation easement. ERCD staff and the County Attorney have worked with the Pennys to craft an easement that meets their needs and the County's interests. Future development rights would be relinquished, with the exception of being able to use an existing open field for agricultural purposes. No buildings or structures would be allowed on the property. The conservation easement would help to protect the adjacent Orange County-owned lands acquired for future public trails and wildlife habitat, and would increase the protected lands in this Orange County section of the New Hope Creek Corridor from 100 acres to 107 acres. FINANCIAL IMPACT: The Pennys intend to "donate" the conservation easement to Orange County. The County would pay an estimated $3,500 in transaction costs (including boundary survey), which would be paid from the Lands Legacy Opportunities Fund. The Budget Office will bring a Capital Project Ordinance forward in an upcoming budget amendment abstract. The Environment and Resource Conservation Department (ERCD) would monitor the property on an annual basis and help to enforce the development restrictions. RECOMMENDATION: The Manager recommends that the Board adopt the resolution approving the acceptance by Orange County of the conservation easement and authorize the Chair and the Clerk to sign the conservation easement agreement, subject to final review by staff and the County Attorney. ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of a Conservation Easement between Orange County and Wade and Carolyn Penny WHEREAS, Orange County has adopted goals that promote the preservation of natural areas, wildlife habitat, farmland and open space in the County; and WHEREAS, Orange County established the Lands Legacy Program for the purpose of protecting the most significant natural and cultural resources through partnerships with landowners and other conservation entities; and 3 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, along with Durham County, the Town of Chapel Hill and the City of Durham, adopted the New Hope Corridor Open Space Master Plan in 1991; and WHEREAS, Orange County is working in partnership with the Triangle Land Conservancy and the neighboring jurisdictions to protect the section of the New Hope Corridor between Erwin Road and the Durham County line, consistent with the master plan; and WHEREAS, Wade and Carolyn Penny sold a 23-acre portion of their New Hope Creek land to Orange County for conservation and low-impact recreational use in June 2006; and WHEREAS, Wade and Carolyn Penny wish to permanently protect the remaining 7 acres of their property located in Orange County with a conservation easement: NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the conservation easement in the property owned by Wade and Carolyn Penny that is described in the conservation easement agreement; 2) approve the execution of this conservation easement agreement with Wade and.Carolyn Penny, in accordance with the terms of the attached easement agreement, subject to final review by staff and the county attorney; and 3) authorize the Chair and the Clerk to sign the easement agreement on behalf of the Board, with a closing to occur on or about February 28, 2007. BE IT FURTHER RESOLVED that the Board thanks the Pennys for their civic-minded interest in pursuing this conservation easement through the Lands Legacy Program. This the 23rd day of January, 2007. Moses Carey Jr., Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board 0 County line Orange County Streets Environment & Resource Depart Cities ConsMNJti 01 08 07ment 0 C) ce. w w b I ? 9 Orange o. conservation easement, 2003 [") ac] Triangle Land possible parking and trails L ? Orange Co. purchase - from fenny family 2000 r q ? fF [22 ac] 1 l Orange Co. - purchase from Trinity School, 200' [20 ac] t N? Grange o., 2005 ['I ac] rC-? 4 rrh f Duke University Duke University p , Orange County X0&4 \ . Fisher r ? A , Penny TLC Orange County tioAe Penny c ' e u ' Trinity School t 0 c i N 0 AD 180 360 Feet Legend Site Map r t Proposed Orange County conservation easement Proposed Conservation Easement Orange County ?Parcel boundary Penny Tract (6.06 acres) Environment & Resource Y Conservation Department Streams MNJ 11/27/06 r ''re ea> Penny Conservation Easement Draft Nov. 27, 2006 BOCC 7 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 , 2006 by WADE H. PENNY, JR. and CAROLNN K. PENNY, husband and wife, 4105 Pickett Road, Durham, NC 27705 (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 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 Grantors are the sole owners in fee simple of certain real property located in Chapel Hill Township, Orange County, North Carolina, and described on Exhibit A hereto, which is incorporated herein by reference. The tracts together, comprising approximately 6.86 acres, are hereinafter collectively referred to either as "the Property." The Property includes improvements, which are shown on Exhibit C, attached hereto and incorporated herein. To the extent practicable, the Grantors wish to maintain the Property as a combination of woodland and open space suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to protect the water quality of headwater streams running off from this land and into New Hope Creek. 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. C. The Property includes contains a natural area that has not been subject to significant development, which provides a "...relatively natural habitat of fish, wildlife, or plants, Penny Conservation Easement Draft Nov. 27, 2006 BOCC 8 or similar ecosystem," as that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in regulations promulgated thereunder. The Property also includes land adjacent to the New Hope Creek riparian corridor, which has been recognized by Orange County as a significant wildlife corridor and is identified on Pages 2.2-41 of the Land Use Element of the Orange County Comprehensive Plan as the Korstian Division/Duke Forest section of the New Hope Creek Refuge System. It is a primary purpose of this Easement to protect the undeveloped nature of the Grantors' Property and, in doing so, help to protect the natural area and wildlife habitat associated with this area. The Property also contributes to the open space and rural character of this section of Chapel Hill Township and the "Rural Buffer so classified in the Orange County Comprehensive Plan. It is a further purpose of this Conservation Easement to help to protect the rural character and open space of the Rural Buffer in Chapel Hill Township. 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 (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 New Hope Corridor Open Space Master Plan, which was adopted by Orange County in the spring of 1989 and which recognizes the need to preserve recommended wildlife corridors along the upstream areas of New Hope Creek; 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 vicinity of the Grantors' Property; and (5) 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 Penny Conservation Easement Draft Nov. 27, 2006 BOOO 9 (6) the special North Carolina Conservation Tax Credit Program, which encourages contributions of land that provides habitat for fish and wildlife and other similar land conservation purposes set forth in N.C.G.S. 105-130.34 and 105-151.12 et seq.; and (7) the Clean Water Management Trust Fund, North Carolina General Statute 113-145.1 et seq., which recognizes the importance of protecting riparian buffers in protecting and conserving clean surface water. The natural habitat of the Grantors' Property, and its contribution to the protection of the open space and rural character of northern Chapel Hill Township are collectively referred to as the "conservation values" of the Property. D. The characteristics of the Property, its current use and state of improvement, are described in a report entitled "Baseline Report for the Penny Property," dated (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 Property 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 Property will be consistent with the terms of this Conservation Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a question about its use. E. The Grantors and Grantee have the common purpose of conserving the above-described conservation values of the Property in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., and G.S. § 153A-176 and G.S. § 160A-266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, fanning, 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 gives, grants and conveys unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Easement over the Property of the nature and character as follows: Grantors convey to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Property, and the parties agree that such rights are terminated Penny Conservation Easement Draft Nov. 27, 2006 BOCC 10 and extinguished, and may not be used on or transmitted to any portion of the Property, as it now or hereafter may be bounded or described, or to any other property. 1. PURPOSE. The purposes of this Conservation Easement are to ensure that the Property will be retained forever, predominantly in its natural, forested, and open space condition; to protect native plants and animals, or plant communities on the Property, while allowing certain limited uses on the Property that are compatible with and not destructive of the conservation values of the Property; and to prevent any use of the Property that will significantly impair or interfere with conservation values or interests of the Property. Grantors will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantors to take any action to restore the condition of the Property after any act of God 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 Property imposed by law. 2. PROPERTY USES. Any activity on, or use of, the Property inconsistent with the purposes of this Conservation Easement is prohibited. The Property shall be maintained in its natural and open condition and restricted from any development that would impair or interfere with the conservation values of the Property. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantors and Grantee have determined that the allowed activities do not impair the conservation values of the Property. Additional retained rights of Grantors are set forth in Paragraph 3 below. 2.1 Subdivision and Conveyance. The Property may not be divided, subdivided or partitioned, nor conveyed except in its current configuration as an entity. Any future conveyance of the fee simple interest in the Property shall be subject to this Conservation Easement. Grantors agree for themselves, their successors and assigns, that in the event it transfers the Property, such transfer is subject to the Grantee's right of ingress, egress, and regress over and across the Grantors' Property for the purposes set forth herein. 2.2 Construction. No structures may be placed or constructed on the Property. Furthermore, there shall be no constructing or placing of any airplane landing strip, billboard or other advertising display, utility pole, utility tower, conduit or line on or above the Property other than those necessary to service the Property's improvements and remaining compatible with the conservations values or interests of the Property. Outdoor lighting shall be placed and shielded so as to minimize the impact on surrounding areas. 2.3 Existing Improvements. Grantors shall have the right to maintain, remodel, and repair existing fences, utilities, and other improvements, and in the event of their destruction, to reconstruct any such existing improvements with another of similar size, function, Penny Conservation Easement Draft Nov. 27 2006 BOCC 11 capacity, location and material so long as authorized by Orange County zoning regulations and consistent with permits required by and issued by Orange County under its laws and ordinances for such reconstruction. Grantors and Grantee acknowledge that no such improvements exist at the time of the execution of this Conservation Easement. 2.4 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and horticultural uses of the Property are allowed within the existing open field identified on Exhibit C to this Conservation Easement. Agricultural, grazing, and horticultural uses of any other portions of the Property is prohibited. 2.5 Timber Harvesting; and Forest Mana egt went. Commercial timbering of trees within the Property is prohibited. Trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, or to salvage wind- thrown timber. Such 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 Grantors and Grantee and which management activities must be agreed to in advance by Grantee and Grantors. 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 Property, including, but not limited to, hiking, picnicking, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land. Hunting is prohibited except as authorized in Section 2.13 of this Conservation Easement. Grantors reserve the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Property, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation values of the Property. 2.7 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the improvements permitted herein, b) the maintenance of hiking trails permitted herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal ecosystems native to the locality. 2.8 Destruction of Plants. 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 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. Penny Conservation Easement Draft Nov. 27, 2006 BOCC 12 2.9 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Property that would be detrimental to water purity or, except as specified herein, that could alter the natural water level or flow in or over the Property. There shall be no alteration, depletion or extraction of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies on the Property. Diking, draining, filling or removal of wetlands is prohibited. 2.10 Si ngnaage. No signs or billboards or other advertising displays are allowed on the Property except as otherwise permitted herein and as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not diminish the scenic character of the Property may be displayed to identify the conservation values of the Property, to identify the Conservation Easement, to give directions, to advertise or regulate permitted uses on the Property and prescribe rules and regulations for educational use of the protected Property, to advertise the Property for sale or rent, to post the Property against trespassers, and to identify the Grantor as fee simple owner of the Property, and to identify the Grantee as holder of the Conservation Easement. 2.11 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by Grantee to control invasive species detrimental to the conservation values of the Property. 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 Property. There shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Property that could cause erosion or siltation on the Property. 2.13 Predator Control. Grantors 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. 2.14 Commercial Development. Any commercial or industrial use of or activity within the Property is prohibited. This restriction on use shall not be construed to prohibit use of the Property for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis. 2.15 Development Rights. Grantors convey to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Property, and the parties agree that such rights are terminated and extinguished, and may not be used on or Page 12 of 15 Penny Conservation Easement Draft Nov. 27, 2006 BOCC 13 transmitted to any portion of the Property, as it now or hereafter may be bounded or described, or to any other property. 3. ADDITIONAL RIGHTS RETAINED BY GRANTORS. Grantors retain the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Property not prohibited by this Conservation Easement. Prior to making any change in use of the Property, Grantors shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. This determination by Grantee shall be made in writing. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Property is subject to the terms of this Conservation Easement. 4. GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the purposes of this Conservation Easement, the following rights are granted to Grantee and the following responsibilities are reserved to Grantee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the conservation values of the Property and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after reasonable advance notice to Grantors or with Grantor's prior verbal consent, to enter the Property for the purposes of (a) inspecting the Property 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 Property. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or at Grantee's direction or with Grantee's permission shall be reported to Grantors. Grantors agree 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 _S ep cies. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Property. Grantee will consult with Grantors prior to implementing any such control activities. Page 13 of 15 Penny Conservation Easement Draft Nov. 27 2006 BOCC 14 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 Grantor, or in any way to affect any existing obligation of the Grantors as owners of the Property. 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 Property. If Grantee is ever required to pay any taxes or assessments on its interest in the Property, 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 Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no obligation for the upkeep or maintenance of the Property. Grantors will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Property. (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 Property, or any claim thereof, unless due to the negligence of Grantee or agents of Grantee, in which case liability shall be as provided by law. In addition, Grantors agree to maintain liability insurance covering the Property with the limits as follows: $300,000, $300,000 personal injury; and $300,000 property damage; and warrant that Gran tee is and will remain a named insured on Grantors' Property insurance policies covering the Property. Grantors shall provide Grantee with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 6. ACCESS. No right of access by the general public to any portion of the Property is conveyed by this Conservation Easement. However, the public has the right to view the Property from adjacent publicly accessible areas such as public roads and waterways and has whatever rights.to the Property that are otherwise expressly granted herein. 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 Grantors' prior verbal consent, the Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair Page 14 of 15 Penny Conservation Easement Praft Nov. 27, 2006 BbCC 15 the conservation values of the Property, the Grantee shall give the Grantors 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 Property to its condition prior to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the 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 parry 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 parry, 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 Property 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 Property or harm to the Property resulting from such action. 8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer, assign, convey, or otherwise to co-hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under NCGS 121-34 et seq., provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Deed. If the Grantee ever ceases to exist or no longer qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Conservation Easement. 9. TRANSFER OF PROPERTY. The 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 Grantors' Property. The Grantors shall notify the Grantee in writing at least thirty (30) days before conveying the Grantors' Property, 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 easement may be amended only with the written consent of Grantors and Grantee. Any such amendment shall be consistent with the Page 15 of 15 Penny Conservation Easement Draft Nov. 27, 2006 BOCC 16 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 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 Grantors' Property change so much that it becomes impossible to fulfill the conservation purposes of this Conservation Easement, a court with jurisdiction may, at the joint request of both the 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 Grantors' Property 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 Property, as these values are determined on the date of this Conservation Easement, subject to any applicable law which expressly provides for a different disposition of the proceeds. 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 Grantors' Property prior to the restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or eminent domain action shall be taken, on all or part of the Grantors' Property, by any authorized authority, said authority shall be liable to the Grantee for the value of the property right vested in the Grantee at the time of the signing of this Conservation Easement. If condemnation or a taking by eminent domain of a part of the Grantors' Property or the entire Property by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Property, this Conservation Easement may be terminated or modified accordingly through condemnation proceedings. 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 Grantors' Property is sold or taken for public use, then, as required by Section 1. 1 70A- I 4(g)(6) of the IRS regulations, the Page 16 of 15 Penny Conservation Easement Draft Nov. 27, 2006 BOCC 17 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 Property, as these values are determined on the date of this Conservation Easement, subject to any applicable law which expressly provides for a different disposition of the proceeds. 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 Grantors 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 Grantor covenants and represents that it is the sole owner and seized of Grantors' Property in fee simple and has good right to grant and convey this Conservation Easement; that the Property is free and clear of any mortgages not subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits 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: Wade and Carolyn Penny 4105 Pickett Road Durham, NC 27705 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 Grantors warrant that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property. Page 17 of 15 Penny Conservation Easement Draft Nov. 27, 2006 BOCC 18 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 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 Property. 21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation Easement should be construed as impairing the ability of Grantors to use the Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 22. EXEUBITS AND DOCUMENTATION. (a) Documentation Repo . 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 Property as of the date hereof. A summary is attached as Exhibit B. (b) Existing Condition. 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. Page 18 of 15 Penny Conservation Easement Draft Nov. 27, 2006 BbCC 19 TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee its successors and assigns, forever. [The remainder of this page is intentionally left blank. Signature page follows.] Page 19 of 15 Penny Conservation Easement Draft Nov. 27, 2006 BbCC 20 IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTORS: Accepted: Wade H. Penny, Jr. Carolyn K. Penny GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Moses Carey Jr., Chair Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners Page 20 of 15 Penny Conservation Easement NORTH CAROLINA COUNTY OF ORANGE Draft Nov. 27, 2006 B000 21 Acknowledgments I, , a Notary Public in and for said County and State do hereby certify that and personally appeared before me this day and duly acknowledged the execution of the foregone Conservation Easement. Witness my hand and official stamp or seal this the day of a 200_. Notary Public (Notary's printed or typed name) My commission expires: NORTH CAROLINA COUNTY OF ORANGE I; , a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the day of , 200_. Notary Public (Notary's printed or typed name) My commission expires: Page 21 of 15