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HomeMy WebLinkAboutAgenda - 12-12-2006-5iORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 12, 2006 Action Agenda ~ Item No.J~ ' 1 SUBJECT: Acceptance of Purchase Contract Assignments from the Triangle Land Conservancy for the Acquisition of Real Property from Trinity School DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation. ATTACHMENTS A. Location Map B. Property Map C. Contract Assignments (2) (Triangle Land Conservancy to County) D. Draft Conservation Easement (County to State of North Carolina) INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2591 PURPOSE: To authorize the acceptance of two purchase contract assignments from the Triangle Land Conservancy for the County's acquisition of approximately 25 acres of land along New Hope Creek from the Trinity School, and the granting of a conservation easement for the same land to the State of North Carolina. BACKGROUND: The Lands Legacy Program, adopted in April 2000, 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 fee-simple acquisition, acceptance of land donations, and purchase or donation of conservation easements. The types of land protected include parkland, natural areas and wildlife habitat, riparian buffers, prime farmland and historic and cultural sites. Since inception, Lands Legacy has protected 1,755 acres of land in Orange County. ERCD is working with Triangle Land Conservancy (TLC) to acquire riparian lands and conservation easements for an open space corridor along New Hope Creek from the site of the former Hollow Rock Store (Erwin Road) to the Durham County line - a distance of nearly one mile along the creek. This project would link Duke Forest lands in Orange County to New Hope Creek open space in Durham County. The proposed trail will help implement the New Hope Corridor Open Space Master Plan, adopted in 1989. TLC, in coordination with ERCD staff, has negotiated the purchase of approximately 25 acres adjacent to New Hope Creek owned by the Trinity School of Durham and Chapel Hill. TLC was awarded funds for the purchase of this land from the state Ecosystem Enhancement Program (EEP), and in return the EEP will require that the land be protected by a permanent conservation easement. TLC intends to assign the purchase contracts involving two adjacent parcels to Orange County. The two parcels will be recombined into one larger parcel of approximately 25 acres in size. Orange County would acquire that land at a purchase price of $130,000, and then grant a conservation easement to the State of North Carolina. The easement would allow future construction of a public pedestrian trail along the creek. A closing on the property is expected by the end of December 2006. The granting of a conservation easement is expected to occur by the end of January 2007. FINANCIAL IMPACT: The purchase price for the 25 +/- acres is $130,000. Funding for this acquisition would come from Orange County open space bond funds. The County would then be reimbursed the entire $130,000 by granting (i.e., "selling") a conservation easement on the property to the State of North Carolina. Funding from the State would come from the NC Ecosystem Enhancement Program (EEP). The net cost to Orange County would be an estimated $3,000 - $5,000 for transaction costs, which would be paid from County's 2001 Parks and Open Space bond (Lands Legacy), which totaled $7.0 million. A total of $3.5 million has been appropriated from this amount, with $2.2 million spent to date. RECOMMENDATIONS: The Manager recommends that the Board authorize: a) the acceptance of the two purchase contract assignments from the Triangle Land Conservancy; and b) the purchase of approximately 25 acres of land located along New Hope Creek from the Trinity School of Durham and Chapel Hill; and c) the. County Attorney and staffs from ERCD and Finance to schedule and complete a closing on the property expected to occur on or before December 31, 2006; and d) the granting of a conservation easement to the State of North Carolina on or before January 31, 2007; and e) the Chair and Clerk. to sign the conservation easement, subject to final review by staff and County Attorney. County line Orange County Streets Conservation Department "''''y Cities MNJ 12!06/06 0 Wade and Carolyn Penny Tract 3 (5.81 ac) Trinity Tract 4 School (3.87 ac)~. Trinity SchooF (total 8.97 ac) . ~,,." \ ~~. I `~~, ,. i ~~ V ~ ~ _-- - - - ~'; i Q (Under Conseryyv~~ationnEaseme^^ /' 5.52 ac) O ~O G72 Af~tal''2 U~_.,~ ~~ _ ~_(total 25.52 ac) _ ~ ~ o 2 U U Tract 1 ~ ~ (14.683) ~ i' ,~ Durham PIN#:0800096887.. ~` o ~ n County Tract 2 ~' ~~ (10.8ac) ~~ a~a~ PIN#:0800095229. ~Iar~Q b,~ ~°~ 1`ec~ ~;~~ Durham ~~.+~ ~~ County 2~ ~~. LG'L1Ly'''1-'- s, Feet PROPERTY MAP ORANGE COUNTY USGS Topographic Quadrangle: Chapel Hill , NC Source: Prepared For: Figure No. " ACQUISTION PROPOSAL. W-~~ NEW HOPE CREEK PROPERTY 7 s ORANGE COUNTY, NORTH CAROLINA 0 DRAFT 12/6/06 Prepared by: Return to: STATE OF NORTH CAROLINA ORANGE COUNTY ASSIGNMENT OF OPTION TO PUR.CHA5E TRIANGLE LAND CONSERVANCY, anon-profit corporation existing under the laws of the State of North Carolina with an address 1101 Haynes Street, Suite 205, Raleigh, North Carolina 27604, for good and valuable consideration, the receipt of which is hereby aclrnowledged, does hereby assign to ORANGE COL1N'TY, NORTH CAROLINA, the rights and obligations pursuant to that certain OPTION AGREEMENT dated October 19, 2006, a copy of which is attached hereto and incorporated herein by reference. This the day of , 2006. TRIANGLE LAND CONSERVANCY By: Charles B. Neely Jr., President Board of Directors Triangle Land Conservancy Page 1 of 2 NORTH CAROLINA WAKE COUNTY I, , a Notary Public of the County and State aforesaid, certify that Charles B. Neely Jr. personally came before me this day and acknowledged that he is President of the Board of Directors, Triangle Land Conservancy, and acknowledged, on behalf of Triangle Land Conservancy, the due execution of the foregoing instrument. Witness my hand and official stamp or seal, this the day of , 2006. Notary Public My commission expires: Page 2 of 2 STATE OF NORTH CAROLINA COUNTY OF ORANGE OPTION AGREEMENT THIS OPTION AGREE ENT (hereinaft r referred to as the "Option") is made and entered into as of this i~4~day of f=~ by and between TRINITY SCHOOL OF DURHAM AND CHAPEL HILL, INC., a nonprofit corporation organized under the laws of the State of North Carolina (hereinafter referred to as the "Owner") and TRIANGLE LAND CONSERVANCY, a nonprofit corporation organized under the laws of the State of North Carolina and having its principal offices in Raleigh, North Carolina (hereinafter referred to as the "Optionee"). WITNESSETH In consideration of $500.00 and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and of the agreements contained in this Option, Owner does hereby grant and convey to the Optionee, and its successors and assigns, the exclusive right and option to purchase in fee simple absolute, upon the terms and conditions .hereinafter set forth, a tract of land containing approximately 14.683 acres, together with all .buildings and improvements thereon, and being a portion of that certain tract or parcel of land located in Orange County, North Carolina, containing 18.67 acres, more or less, and which is more particularly described as follows: Being an 18.67 acre, more or less, tract or parcel of land further described in a deed recorded in Deed Book 1852, Page 237, Orange County Registry and depicted and/or described on a Plat recorded in Plat Book'93 Page 1, Orange County Registry. PIN: 0800096887. Reference to said deed and plat are hereby made for a more particular description. Said 14.683 acre, tract or parcel of land is hereinafter referred to as the "Property" and is depicted as "Tract 1" on Exhibit A attached hereto and incorporated herein by reference. The exact dimensions and boundary lines of the Property shall be determined by a survey performed by a registered surveyor prior to the Closing. 'The following terms, provisions, and conditions are further agreed, to: 1. EXPIRATION DATE AND METHOD OF EXERCISE. This Option shall remain in effect for two (2) months from the date that th Option has been executed by the Owner and shall expire at 5:00 p.m. on' the ~ day of ~~~~ ~ 20 D~. This Option shall be exercised upon posting, by certified mail, a wntten notice to the Owner at the notice address set forth in paragraph 15 of this Option. Exercise shall be deemed timely if such written notice is mailed on or before the date first set forth in this paragraph. Z. OPTION PRICE. The price for this Option is five hundred and no/100 dollars ($500.00) ("Option Price"), to be paid by Optionee upon the signing by Optionee of P this Option. If the Option is exercised, the entire Option Price will be applied to the. total Purchase Price for the Property. In the event the Optionee does not exercise the Option or does not close on the purchase of the property because of a title defect or other reason allowed by the terms of this Option, then the Option Price will be returned to the Owner in full. 3. PURCHASE PRICE. The total Purchase Price for the Property shall be the sum of seventy-five thousand and no/100 dollars, ($75,00.00 ). 4. CLOSING. A Closing of the sale of this property under this Option shall be held within not less than five (5) nor more than sixty (60) days of the exercise of this Option; provided, however, in the event of objections to title or condition of land at Closing, and diligent efforts on Owner's part to cure said objections, a Closing shall beheld within a reasonable time following the removal of said objections. 5. CONDITION PRECEDENT. The parties agree that Owner is, in good faith, and using all best and reasonable efforts, negotiating a contract with Mortgage Realty Inc., a North Carolina corporation, to purchase all of the rights, title and interest in and to that certain tract or parcel of land being 16.61 acres, more or less, and more particularly described in a deed recorded in Deed Book 1989, Page 554, Orange County Registry, and having the identifying PIN: 0800095229 (herinafter referred to as the "Mortgage Realty Property"). Owner and Optionee fizrther agree that the Closing of the sale of the Property under this Option is conditioned upon Owner's purchase in fee of the Mortgage Realty Property. If the sale of the Property under this Option does not close because this Condition Precedent is not met, then Owner shall refund to Optionee the Option Price in full, plus any expenses- incurred by Optionee for due diligence work including but not limited to, title search, legal expenses, survey costs, and Phase I environmental assessments. 6. EVIDENCE OF TITLE. Upon exercise of this Option, the Optionee will have title to the Property examined, and if applicable, obtain a preliminary title insurance commitment on the Property. The title examination and/or commitment must evidence the Owner's ability to deliver title at Closing as set forth below. All costs necessary to procure the title examination and, if applicable, the title commitment and final title insurance policy to be issued at Closing, shall be the responsibility of the. Optionee. 7. ACCEPTABLE TITLE. Owner represents and warrants to Optionee that Owner has the right, power and authority to enter into this Option and to sell the Property in accordance with .the terms hereof, and Owner has granted no option to any other person to purchase the Property. At Closing, the Owner shall convey .good, insurable and marketable title to the property together with all rights belonging to the Property, including insurable legal access, all mineral rights and all ~ water rights, to the Optionee in fee simple, free and clear of all liens, encumbrances, restrictions, rights, or exceptions except those of record that are acceptable to the Optionee. S. TITLE DEFECTS. If for any reason the Owner cannot deliver title at Closing as required by Paragraph 5 of this Option, the Optionee may elect to a) accept the Property with title as is; b) refuse to accept the Property'; or c) allow the Owner additional time to pursue reasonable efforts to correct the problem, including bringing any necessary quiet title actions or other lawsuits. 9. FIXTURES. Unless otherwise agreed to in writing, all trees, shrubbery and plants and all fixtures attached to the land or improvements, including, but not limited to, plumbing, heating, lighting fixtures, and all existing appurtenances, are included in this sale, and shall, upon Closing be considered the property of the Optionee, and its successors and assigns. The Owner hereby warrants and represents that Owner is the lawful Owner of said fixtures and appurtenances, and that said fixtures ire free and clear of all liens and encumbrances. 10. DOCUMENTS FOR CLOSING. The Owner shall execute and deliver at Closing a General Warranty Deed, any .Owner's affidavits or documents required by a title insurance company to remove the standard title policy exceptions, and any other documents necessary to close in accordance with the terms of this Option. These documents will be prepared at the expense of the Optionee. 11. PROPERTY TAXES. .Any delinquent real estate taxes and all levied assessments are the Owner's responsibility and should be satisfied of record by the Owner at or before Closing. Any deferred taxes on the Property, which become due as a result of this conveyance, shall be the responsibility of the Owner. Any real estate taxes for the year in which the transaction is closed shall be prorated between Owner and Optionee as of the date of Closing. . 12. MISCELLANEOUS CLOSING EXPENSES. The Owner will pay any documentary stamp tax, real estate transfer fee or any similar charge due upon conveyance of title to the Optionee. The Optionee will pay recording fees. 13. POSSESSION. The Owner will deliver possession of the Property to the Optionee at Closing subject to no leases, mortgages, liens or other reserved rights, and in the condition set forth below iri Paragraph 12. 1~4. PROPERTY USE. Upon transfer of title to Optionee, all of the Property shall be placed .under a conservation easement in the form attached as Exhibit B ("Conservation Easement"). The use of the Property will thereafter be restricted by the terms of the Conservation Easement. The Property will continue to be known as the Dallas Branch Nature Preserve. The Owner shall reserve for itself the right to access the Property for educational purposes. Said right of access will be subject to the terms of the Conservation Easement. 15. CONDITION OF PROPERTY/ RISK OF LOSS. The Owner shall not transfer or encumber any interests in the Property prior to Closing. The Owner shall remove all rubbish or trash including any hazardous or harmful chemical substances, from the . Property prior to Closing but shall otherwise keep the Property in its .current condition 3 ~~ until Closing and shall prevent and refrain from any use of the Property, for any purpose or in any manner, that would diminish its value or adversely affect the Optionee's intended use of the Property. By way of example and not limitation, Owner shall not change existing surface or other natural contours of the Property; shall not engage in any excavation, mining, road building or timbering activities on the Property and shall not engage in the dumping of waste or debris on the property. Risk of loss or damage by fire, vandalism or other casualty prior to payment of the purchase price and Closing shall remain with the Owner. In the event of any adverse change in the condition of the Property, whether said change is caused by Owner or by forces beyond Owner's control, the Optionee may elect to a) refuse to accept the property; b) accept the Property, or a portion thereof, in which case there may be an equitable adjustment of the purchase price based on a change in circumstances; or c) require restoration of the Property to its condition at the time this Option was granted. 16. RIGHT OF ENTRY AND INSPECTION. The Optionee and its agents and assigns shall have the right to enter upon the Property at reasonable times for surveying, conducting environmental inspections and assessments to detect hazardous or toxic substances, and other reasonable purposes related to this transaction. Based upon the results of the environmental inspections and assessments, or upon other conditions revealed to be unsuitable to the Optionee or its assigns, the Optionee may elect to refuse to accept the Property. . 17: REMEDIES. In addition to any other remedy specifically set forth in this Option, the Optionee has the right to enforce the provisions of this Option through an action for specific performance, injunctive relief, damages, contribution or any other available proceedings in law or equity. The election of any one remedy available under this Option shall not constitute a waiver of any other available remedies. 18. NOTICES. Any notice or demand under this Option shall be sent by registered or certified mail as follows: Trinity School of Durham and Chapel Hill, Inc., 4721 Erwin Road, Durham, North Carolina 27705, on behalf of the Owner; or Triangle Land Conservancy, 1101 Hayes Street, Suite 205, Raleigh, North Carolina 27604, c/o Jeff Masten, on behalf of the Optionee. 19. BINDING EFFECT. This Option becomes effective when signed by the Owner and shall then apply to and bind the Owner and Owner's heirs, executors, administrators, successors, and assigns. 20. ENTIRE AGREEMENT. This Option constitutes the entire agreement between the parties. No representations, warranties, or promises pertaining to this Option or any property affected by this Option have been made by, or shall be binding on any of the parties, except as expressly stated in this Option. This Option may not be changed orally, but only by an agreement signed by the parties against whom enforcement of any such change is sought. . 4 21. SEVERABILITY. If any provision of this Option is found to be invalid, the remainder of the provisions of this Option, and the application of such provision to persons or circumstances other than those as to which it is found invalid, shall not be affected thereby. 22. NO WAIVER. No provision of the Option shall be deemed amended or waived unless such amendment or waiver is set forth in a writing signed by the Optionee. No act or failure to act by the Optionee shall be deemed ~a waiver of its rights hereunder, and no waiver in any one circumstance or of any one provision shall be deemed a waiver in other circumstances or of other provisions. 23. ASSIGNMENT. The Optionee has the right to assign this Option, subject to approval by the Owner, not to be unreasonably withheld. In the event of such assignment, the assignee will have all the rights, powers, privileges and duties held by the Optionee pursuant to this Option. 24. MISCELLANEOUS. This Option maybe executed in several counterparts, each of which shall be deemed an original and all of ~ which counterparts together shall constitute one and the same instrument. REMAINDER OF PAGE LEFT BLANK INTENTIONALLY 5 ~a IN TESTIMONY THEREOF, the parties have hereunto set their hands and seals, or if corporate have caused this instrument to be executed in their corporate names by their duly authorized representatives as of the dates indicated below. OWNER TRINITY SCHOOL OF DURHAM AND CHAPEL HILL, INC., a North Carolina nonprofit corporation By:~~~ ~ _ Print Name:~~---er-'~ ~~ r ~-; ~D /~ Its: ~-~-~~-~'F~.r-"_ STATE OF oC"t'V~. 1.... ~-~- COUNTY OF .! .)V d' ~ ~ I, ,~ ~,., ~ ; c„n ~ ~ a Nota Public in an for e County and St~atE . aforesaid, do hereby certify that ~-Q-~ ~' per ovally appeared before me this day and acknowledged tha he/she is the (-~~~~,r-- of TRINITY SCHOOL OF DURHAM AND CHAPEL HILL, INC.,' a North Carolina nonprofit corporation and that by authority duly given and as the act of the corporation he/she executed the foregoing instrument for the purposes therein expressed. WITNESS my hand and Notarial Seal this i ~ ~ day of ~~`o~ ~, 20 b ~ otary Public My Commission Expires: ~~ 13 IN TESTIMONY THEREOF, the parties have hereunto set their hands and seals, or if corporate have caused this instrument to be executed in their corporate names by their duly authorized representatives as of the dates indicated below. OPTIONEE TRIANGLE LAND CONSERVANCY, a North Carolina nonprofit co oration By: ~ , Print Name: ~ ~ . ^~ ``'6t'~'~ V ~ p Its: Rn`~s~~~~---~ STATE OF ~ ~-^t~--' COUNTY OF ~~-~t_~ I, ~, ~,t,~ q~c,~ a Notary Public i ~ and for the County and State aforesaid, do hereby certify that ~_.~ person lly appeared before me this day and acknowledge th t he/she is the ~~~,,,,,.~--- of TRIANGLE LAND CONSERVANCY, a North Carolina nonprofit corporation and that by authority duly given and as the act of the corporation he/she executed the foregoing instrument for the purposes therein expressed. WITNESS my hand and Notarial Seal this ~~ day of ~ ~~~1._., , 206. ~~ w~ ~..___. Not y Public My Commission Expires: ! a -mot -o g Orange / Wade and Carolyn Penny County ~' Tract 4 (3.9 ac) Tract 3 (4.7ac) 0 Trinity School Trinity Scho, (total 8.65 ac) U m ~. o_ Triangle Land Cons ancy (total 25.52 ac) Tract 1 (14.683) PIN#: 0800096887 Tract 2 (10.8ac) PIN#: 0$00095229 Durham County Durham County ~F~' EXHIBIT A PROPERTY MAP ORANGE COUNTY USGS Topographic Quadrangle: Chapel Hill , NC Source: Prepared For. Figure No. AK ACQUISTION PROPOSAL w~p-c NEW HOPE CREEK PROPERTY '~ ~~(s ORANGE COUNTY, NORTN CAROLINA , ~/ ~ ~" r. ~~ ,, . I~'" ri +' ~ ,i :r ~ ~ ~~~ ,>~ ;: - - << ~ ~ ~, ,, ,, , , ; ~, :.. - - a 0 0 U U ~ ~ ~ r O 0 (5 DRAFT 12/6/06 Prepared by: Return to: STATE OF NORTH CAROLINA ORANGE COUNTY ASSIGNMENT OF OPTION TO PURCHASE TRIANGLE LAND CONSERVANCY, anon-profit corporation existing under the laws of the State of North Carolina with an address.1101 Haynes Street, Suite 205, Raleigh, North Carolina 27604, for good and valuable consideration, the receipt of which is hereby acknowledged, does hereby assign to ORANGE COUNTY, NORTH CAROLINA, the rights and obligations pursuant to that certain OPTION AGREEMENT dated October 19, 2006, a copy of which is attached hereto and incorporated herein by reference. This the day of ~ , 2006. TRIANGLE LAND CONSERVANCY By: Charles B. Neely Jr., President Board of Directors Triangle Land Conservancy Page 1 of 2 ~~ NORTH CAROLINA WAKE COUNTY I, , a Notary Public of the County and State aforesaid, certify that Charles B. Neely Jr. personally came before me this day and acknowledged that he is President of the Board of Directors, Triangle Land Conservancy, and acknowledged, on behalf of Triangle Land Conservancy, the due execution of the foregoing instrument. Witness my hand and official stamp or seal, this the day of , 2006. Notary Public My commission expires: Page 2 of 2 i~ STATE OF NORTH CAROLINA COUNTY OF ORANGE OPTION AGREEMENT THIS OPTION AGREE ENT (herein fte ~ referred to as the "Option") is made and entered into as of this ~~~day of ~~by and between TRINITY SCHOOL OF DURHAM AND CHAPEL HILL, INC., a nonprofit corporation organized under the laws of the State of North Carolina (hereinafter referred to as "Trinity") and TRIANGLE LAND CONSERVANCY, a nonprofit corporation organized under the laws of the State of North Carolina and having its principal offices in Raleigh, North Carolina (hereinafter referred to as the "Optionee"). WITNESSETH WHEREAS Mortgage Realty, Inc., a North Carolina corporation ("Owner") is the current owner of all of that certain tract or parcel of land containing 16.61 acres more or less and being situated in Orange County, North Carolina and having the PIN # 0800095229 and being more particularly described below (the "Property"); and WHEREAS Trinity would like to acquire all of the rights and title in and to all of the Property from the Own d T ' t~ an caner have entered into that certain Option Agreement dated ~~w,~ption to Purchase") pursuant to which the Owner granted to Trinity the exclusive right and option to purchase the Property; and WHEREAS Optionee wants to acquire an Option to Purchase a portion of the Property from Trinity and Trinity wants to grant said Option; NOW THEREFORE, in consideration of five hundred and no/100 dollars ($500.00) and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and of the agreements contained in this Option, Trinity does hereby grant and convey to the Optionee, and its successors and assigns, the exclusive right and option to purchase in fee simple absolute, upon the terms and conditions hereinafter set forth, a tract of land containing approximately 10.8 acres, together with all buildings and improvements thereon, and being a portion of that certain tract or parcel of land located in Orange County, North Carolina, containing 16.61 acres, more or less, and which is more particularly described as follows.: Being a 16.61 acre, more or less, tract or parcel of land further described in a deed recorded in Deed Book 1989, Page 554, Orange County Registry and depicted and/or described on a Plat recorded in Plat Book _ Page _, Orange County Registry. PIN: 0800095229. Reference to said deed and plat are hereby made for a more particular description. Said 10.8 acre, tract or parcel of land is hereinafter referred to as the "Option Property" and is depicted as "Tract 2" on Exhibit A attached hereto and incorporated herein by ~~ reference. The exact dimensions of the Option Property shall be determuaed by a survey prior to the Closing: The following terms, provisions, and conditions are further agreed to: i . PURCHASE OF THE PROPERTY. Trinity will use all reasonable efforts to acquire all rights and title in and to the Property from the Owner on or before Expiration Date described in paragraph 3 below. 2. NOTICE OF PURCHASE. Trinity will notify Optionee in writing at the address set forth in paragraph 19 below within three (3) business days of each of the following events: a. Trinity exercises its Option to Purch se the Property pursuant to that certain Option Agreement dated _.~~~~q ~,~ ~~(o b. Trinity decides not to exercise its Option to Purchase. Said notice shall include the reasons for not exercising the Option to Purchase and shall be provided to Optionee prior to Trinity notifying the Owner that it will not exercise the Option. c. The closing occurs whereby Trinity acquires title to the Property. Said notice to include the book and page of the, recorded deed evidencing Trinity's ownership of the Property. 3. EXPIRATION DATE AND METHOD OF EXERCISE. This Option shall remain in effect for two (2) months from e ate that this Option has been fully executed and shall expire at 5:00 p.m. on the ~~day of ~ , 20 0 (a This Option shall be exercised upon posting, by certified mail, a written notice to Trinity at the notice address set forth in paragraph 19 of this Option.. Exercise shall be deemed timely if such written notice is mailed on or before the date first set forth in this paragraph. 4. OPTION PRICE. 'The price for this Option is five hundred and no/100 dollars ($500.00) ("Option Price"), to be paid by Optionee upon the signing by Optionee this Option. If the Option is exercised, the entire Option Price will be applied to the total Purchase Price for the Option Property. In the event the Optionee does not exercise the Option or does not close on the purchase of the Option Property because of a title defect or other reason allowed by the terms of this Option, or if Trinity does not acquire the Property, then the Option Price will be returned to the Optionee in full. 5. PURCHASE PRICE. The total Purchase Price 'for the .Option Property shall be the sum of fifty-five thousand and no/100 dollars, ($55,000.00 ). 6. CLOSING. A Closing of the sale of this Option Property under this Option shall be held within not less than five (5) nor more than sixty (60) days of the exercise of this Option; provided, however, in the event of objections to title or condition of land at Closing, and diligent efforts on Trinity's part to cure said objections, a Closing shall beheld within a reasonable time following the removal of said objections. 7. EVIDENCE OF TITLE. Upon exercise of this Option, the Optionee will have title to the Option Property examined; and if applicable, obtain a preliminary title insurance commitment on the Option Property. The title examination and/or commitment must evidence Trinity's ability to deliver title at Closing as set forth below. All costs necessary to procure the title examination and, if applicable, the title commitment and final title insurance policy to be issued at Closing, shall be the responsibility of the Optionee. 8. ACCEPTABLE TITLE. Trinity represents and warrants to Optionee that Trinity has the right; power and authority to enter into this Option and to sell the Option Property in accordance with the terms hereof, and Trinity has granted no option to any other person to purchase the Option Property. At Closing, Trinity shall convey good, insurable and marketable title to the Option Property together with all rights belonging to the Option Property, including insurable legal access, all mineral rights . and all water rights, to the Optionee in fee simple, free and clear of all liens, encumbrances, restrictions, rights, or exceptions except those of record that are acceptable to the Optionee. 9. TITLE DEFECTS. If for any reason Trinity cannot deliver title at Closing as required by Paragraph 5 of this Option, the Optionee may elect to a) accept the Option Property with title.as is; b) refuse to accept the Option Property; or c) allow Trinity additional time to pursue reasonable efforts to correct the problem, including bringing any necessary quiet title actions or other lawsuits. 10. FIXTURES. Unless otherwise agreed to in writing, all trees, shrubbery and plants and all fixtures attached to .the land or improvements, including, but not limited to, plumbing, heating, lighting fixtures, and all existing appurtenances, are included in this sale, and shall, upon Closing be considered the Option Property of the Optionee, and its successors and assigns. Trinity hereby warrants and represents that Trinity is the lawful owner of said fixtures and appurtenances, and that said fixtures are free and clear of all liens and encumbrances. 11. DOCUMENTS FOR CLOSING. Trinity shall execute and deliver at Closing a General Warranty Deed, any owner's ,affidavits or documents required by a title insurance company to remove the standard title policy exceptions, and any other documents necessary to close in accordance with the terms of this Option. These documents will be prepared at the expense of the Optionee. 12. OPTION PROPERTY TAXES. Any delinquent real estate taxes and all levied assessments are Trinity's responsibility and should be satisfied of record by Trinity at or before Closing. Any deferred taxes on the Option Property, which become due as a result of this conveyance, shall be the responsibility of Trinity. Any real estate taxes for the year in which the transaction is closed shall be prorated between Trinity and Optionee as of the date of Closing. 13. MISCELLANEOUS CLOSING EXPENSES. Trinity will pay any documentary stamp tax, real estate transfer fee or any similar charge due upon conveyance of title to the Optionee. The Optionee will pay recording fees. 14. POSSESSION. Trinity will deliver possession of the Option Property to the Optionee at Closing subject to no leases, mortgages, liens or other reserved rights, and in the condition set forth below in Paragraph 12. 15. OPTION PROPERTY USE. Upon transfer of title to Optionee, all of the Option Property shall be placed under a conservation easement in the form attached as Exhibit B ("Conservation Easement"). Trinity shall reserve for itself the right to access the Option Property for educational purposes. Said right of access will be subject to the terms of the Conservation Easement. 16. CONDITION OF OPTION PROPERTY/ RISK OF LOSS. Trinity shall not transfer or encumber any interests in the Option Property prior to Closing. Trinity shall remove all rubbish or trash including any hazardous or harmful chemical substances, from the Option Property prior to Closing but shall otherwise keep the Option Property in its current condition until Closing and shall prevent and refrain from any use of the Option Property, for any purpose or in any manner, that would diminish its value or adversely affect the Optionee's intended use of the Option Property. By way of example and not limitation, Trinity shall not change existing surface or other natural contours of the Option Property; shall not engage in any excavation, mining, road building or timbering activities on the Option Property and shall not engage in the dumping of waste or debris on the Option Property. Risk of loss or damage by fire, vandalism or other casualty prior to payment of the purchase price and Closing shall remain with Trinity. In the event of any adverse change in the condition of the Option Property, whether said change is caused by Trinity or by forces beyond Trinity's control, the Optionee may. elect to a) refuse to accept the Option Property; b) accept the Option Property, or a portion thereof, in which case there may be an equitable adjustment of the purchase price based on a change in circumstances; or c) require restoration of the Option Property to its condition at the time this Option was granted. 17. RIGHT OF ENTRY AND INSPECTION. The Optionee and its agents and assigns shall have the right to enter upon the Option Property at reasonable times for surveying, conducting environmental inspections and assessments to detect hazardous or toxic substances, and other reasonable purposes related to this transaction. Based upon the results of the environmental inspections and assessments, or -upon other conditions revealed to be unsuitable to the Optionee or its assigns, the Optionee may elect to refuse to accept the Option Property. 18. REMEDIES. In addition to any other remedy specifically set forth in this Option, the Optionee has the right to enforce the provisions of this Option through an action for specific performance, injunctive relief, damages, contribution or any other ~i available proceedings in law or equity. 'The election of any one remedy available under this Option shall not constitute a waiver of any other available remedies. 19. NOTICES. Any notice or demand under this Option shall be sent by registered or certified mail as follows: Trinity School of Durham and Chapel Hill, Inc., 4721 Erwin Road, Durham, North Carolina 27705, on behalf of Trinity; or Triangle Land Conservancy, 1101 Haynes Street, Suite 205, Raleigh, North Carolina 27604, c/o Jeff Masten, on behalf of the Optionee. 20. BINDING EFFECT. This Option becomes effective when signed by Trinity and shall then apply to and bind Trinity and Trinity's successors, and assigns. 21. ENTIRE AGREEMENT. This Option constitutes the entire agreement between the parties. No representations, warranties, or promises pertaining to this Option or any Option Property affected by this Option have been made by, or shall be binding on any of the parties, except as expressly stated in this Option. This Option may not be changed orally, but only by an agreement signed by the parties against whom enforcement of any such change is sought. 22. SEVERABILITY. If any provision of this Option is found to be invalid, the remainder of the provisions of this Option, and the application of such provision to persons or circumstances other than those as to which it is found invalid, shall not be affected. thereby. 23. NO WAIVER. No provision of the Option shall be deemed amended or waived unless such amendment or waiver is set forth in a writing signed by the Optionee. No act or failure to act by the Optionee shall be deemed a waiver of its rights hereunder, .and no waiver in any one circumstance or of any one provision shall be deemed a waiver in other circumstances or of other provisions. 24. ASSIGNMENT. The Optionee has the right to assign this Option, subject to approval by Trinity. Said approval shall not be unreasonably withheld. In the event of such assignment, the assignee will have all the rights, powers, privileges and duties held by the Optionee pursuant to this Option. 25. MISCELLANEOUS. a. In the event Trinity decides not to exercise its Option to Purchase the fee interest in the Property, Optionee shall have the right of first refusal to take assignment of the Option to Purchase the Property from Trinity, subject to approval by the Owner. Optionee shall notify Trinity in writing of its desire to take assignment of the Option within five (5) days of receiving the notice described in paragraph 2.b. above. Trinity shall then deliver to Optionee a fully executed Assignment- of the Option to Purchase in recordable format within five (5) days of receiving said notice, provided the Assignment must be made prior to the expiration date of the Option to Purchase. ~a b. This Option may be executed in several counterparts, each of which shall be deemed an original and all of which counterparts together shall constitute one and the same instrument. c. In the event Trinity fails acquire all rights and title in and to the Property, then this Option shall be void and the Option Price shall be returned to the Optionee in full. REMAINDER OF PAGE LEFT BLANK INTENTIONALLY a~ IN TESTIMONY THEREOF, the parties have hereunto set their hands and seals, or if corporate have caused this instrument to be executed in their corporate names by their duly authorized representatives as of the dates indicated below. OWNER i ~ ~~~~ ~~ STATE OF ~ c~t~- 0 COUNTY OF ,~u ~~G`"~ TRINITY SCHOOL OF DURHAM AND CHAPEL HILL, INC., a North Carolina nonprofit corporation By~ ~. Print Name: '~' . ~~+~ ~~ r Its: ~-.c.~MSw~{'r/- I, .~ y ~ i G,n t,._.~ ~~`- a Notary ub}~' c in and or the CouLty ~x~d .State aforesaid, do hereby certify that ~~~~~= 1~~%-~t~= personally appeared before me this day and acknowledged that he/she zs the }-~r-~,n~.~.>~ of TRINITY SCHOOL OF DURHAM AND CHAPEL HILL, INC., a North Carolina nonprofit corporation and that by authority duly given and as the act of the corporation he/she executed the foregoing instrument for the purposes therein expressed. WITNESS my hand and Notarial Seal this ~~~ day of ~~~ , 20 ~~ Notary Public My Commissi n.Ex Tres: I t ~ ~ ~~) a~ IN TESTIMONY THEREOF, the parties have hereunto set their hands and seals, or if corporate have caused this instrument to be executed in their corporate names by their duly authorized representatives as of the dates indicated below. OPTIONEE STATE OF ~p-~ ~-~•_ COUNTY OF U~- TRIANGLE LAND CONSERVANCY, a North Car onprofit co oration By. Print Name: t-F~^~~z ~3 , ~'~ ~~ ~'-~ Its: ~~~~~.~- I, t~t.J61.~_, a Notary Public i d for the County and State aforesaid, do ereby certify that C,Z~,~.Q.c~ perso lly appeared before me this day and acknowledge that he/she is the f,Q,~~,-~c~-~ of TRIANGLE LAND CONSERVANCY, a North Carolina nonprofit corporation and that by authority duly given and as the act of the corporation he/she executed the foregoing instrument for the purposes therein expressed. WITNESS my hand and Notarial Seal this ~ day of (.~-c~'"~~'~ , 2~'~'• ~. 1~.1a.~t.~ Not Public My Commission Expires: la-~i-off ~~ DRAFT 12-5-06 STATE OF NORTH CAROLINA ORA1vGE COUNTY Prepared by: Triangle Land Conservancy c/o Jeff Masten 1101 Haynes Street, Suite 205 Raleigh, NC 27604 CONSERVATION EASEMENT THIS CONSERVATION EASEMENT DEED, made this day of 2007, by ORANGE COUNTY, a body politic and corporate, a political subdivision of the State of North Carolina, with a mailing address of P.O. Box 8181, Hillsborough, North Carolina 27278, ("Grantor"), to THE STATE OF NORTH CAROLINA, ("Grantee"), whose mailing address is State of North Carolina, Department of Administration, State Property Office, 1321 Mail Service Center, Raleigh, NC 27699-1321. The designations Grantor and Grantee as used.herein shall include said parties, their heirs, successors, and assigns, and shall include singular, plural, masculine, feminine, or neuter as required by context: WITNESSETH: WHEREAS, pursuant to the provisions of N.C. Gen. Stat. § 143-214.8 et seq., the State of North, Carolina has established the Ecosystem Enhancement Program (formerly known as the Wetlands Restoration Program) within the Department of Environment and Natural Resources for the purposes of acquiring, maintaining, restoring, enhancing, creating and preserving wetland and riparian resources that contribute to the protection and improvement of water quality, flood prevention, fisheries, aquatic habitat, wildlife habitat, and recreational opportunities; and WHEREAS, The State of North Carolina is qualified to be the Grantee of a Conservation Easement pursuant to N.C. Gen. Stat. § 121-35; and WHEREAS, the Ecosystem Enhancement Program in the Department of Environment and Natural Resources has approved acceptance of this instrument; and WHEREAS, the Department of Environment and Natural Resources, the North.Carolina Department of Transportation and the United States Army Corps of Engineers, Wilmington District entered into a Memorandum of Agreement, (MOA) duly executed by all parties in Greensboro, NC on July 22, 2003. This MOA recognizes that the Ecosystem Enhancement ~~ Program is to provide for compensatory mitigation by effective protection of the land, water and natural resources of the. State by restoring, enhancing and preserving ecosystem functions; and WHEREAS, the acceptance of this instrument for and on behalf of the State of North Carolina was granted to the Department of Administration by resolution as approved by the Governor and Council of State adopted at a meeting held in the City of Raleigh, North Carolina, on the 8th day of February 2000; and WHEREAS, Grantor owns in fee simple certain real property situated, lying, and being in Orange County, North Carolina (the "Property"), and being more particularly described as a tract of land located in Orange County, North Carolina, containing acres, more or less, and which is more particularly described in a deed recorded in Deed Book ,Page _, Orange County Registry and depicted and/or described on a Plat recorded in Plat Book _ Page _, Orange County Registry. PIN: .Reference to said deed and plat are hereby made for a more particular description. The Property is depicted on Exhibit A as Tract 1, attached hereto and incorporated herein; and WHEREAS, Graritor is willing to grant a Conservation Easement over the herein described areas of the Property, thereby restricting and limiting the use of the included areas of the Property to the terms and conditions and purposes hereinafter set forth, and Grantee is willing to accept such Conservation Easement. Thrs Conservation Easement shall be for the protection and benefit of the waters of New Hope Creek, a tributary to Jordan Lake. NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions, and restrictions hereinafter set forth, Grantor unconditionally and irrevocably hereby grants and conveys unto Grantee, its successors and assigns, forever and in perpetuity, a Conservation Easement of the nature and character and to the extent hereinafter set forth, over a described area of the Property, referred to hereafter as the "Easement Area", for the benefit of the people of North Carolina, and being all of the tract of land'as identified as Tract as shown on a plat of survey entitled " "dated ,certified by ,and recorded in Map Book ,Page Orange County Registry. Tract being more particularly described in Exhibit A attached hereto and by this reference incorporated herein. The purposes of this Conservation Easement are to maintain, restore, enhance, create and preserve wetland and/or riparian resources in the Easement Area that contribute to the protection and improvement of water quality, flood prevention, fisheries, aquatic habitat, wildlife habitat, and recreational opportunities; to maintain permanently the Easement Area in its natural condition, consistent with these purposes; and to prevent any use of the Easement Area that will significantly impair or interfere with these purposes. To achieve these purposes, the following conditions and restrictions are set forth: I. DURATION OF EASEMENT This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land, and is enforceable by Grantee against Grantor, their personal representatives, heirs, successors, and assigns, lessees, agents, and licensees. 2 II. GRANTOR RESERVED USES AND RESTRICTED ACTIVITES The Easement Area shall be restricted from any development or usage that would impair or interfere with the purposes of this Conservation Easement. Unless expressly reserved as a compatible use herein, any activity in, or use of, the Easement Area by the Grantor is prohibited as inconsistent with the purposes of this Conservation Easement. Any rights not expressly reserved hereunder by the Grantor have been acquired by the Grantee. The following specific uses are prohibited, restricted, or reserved as indicated: A. Recreational Uses. Grantor expressly reserves the right to undeveloped recreational uses, including hiking, bird watching, hunting and fishing, and access to the Easement Area for the purposes thereof. Use of motorized vehicles in the Easement Area is prohibited, except as they are used exclusively for management, maintenance, or stewardship purposes. Hiking foot trails may be constructed to support the permitted recreational and educational uses of the Property 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 and shall be located in a manner acceptable to the Ecosystem Enhancement Program. Grantor reserves the right to construct no more than three (3) small bridges to cross over streams and no more than 200 feet of boardwalk in the future as part of a future trail system, subject to Ecosystem Enhancement Program approval. B. Educational Uses. The Grantor reserves the right to engage in and permit others to engage in educational uses in the Easement Area not inconsistent with this Conservation Easement, and the right of access to the Easement Area for such purposes including organized educational activities such as site visits and observations. Educational uses of the property shall not alter vegetation; hydrology or topography of the site. C. Vegetative Cutting. Except as related to the removal of non-native plants, diseased or damaged trees, and vegetation that obstructs, destabilizes or renders unsafe the Easement Area to persons or natural habitat; and except as necessary to engage in the other uses of the Easement Area expressly permitted herein, including but not limited to the construction of trails pursuant to Section II A above, ail cutting, removal, mowing, harming, or destruction of any trees and vegetation in the Easement Area is prohibited. D. Industrial, Residential and Commercial Uses. All are prohibited in the Easement.Area. E. Agricultural Use. All agricultural uses within the Easement Area including any use for cropland, waste lagoons, or pastureland are prohibited. F. Forest Management. Grantor reserves the right to manage the forest for the purposes of water quality protection, wildlife habitat enhancement, forest health, and restoration after natural disasters including but not limited to fire, ice, hurricane, and storm damage provided that all forest management activities follow a forest management plan written by a registered North Carolina Forester ,following the North Carolina Division of Forest Resources Forest Stewardship Program Guidelines, subject to the approval of the Grantee. 3 ~~ G. New Construction. There shall be no building, facility, mobile home, antenna, utility pole, tower, or other structure constructed or placed in the Easement Area ~ except environmental learning kiosks or benches which may be constructed with the written permission of the Grantee. H. Existing and Future Trails. Grantor expressly reserves the right to maintain existing. trails and stream crossings located in the Easement Area and those trails and stream crossings constructed pursuant to Section II. A. of this Conservation Easement in order to minimize runoff and sedimentation and to maintain access to the interior of the Property for management, maintenance, stewardship purposes, or undeveloped recreational and educational uses of the Property. These trails shall not be paved or covered with asphalt, but gravel or permanent vegetation may be used to stabilize or cover the trail surfaces. Existing access gates may be improved, replaced, or maintained and new access gates may be constructed to control access to the Property. Except as provided in Section II. A. and this Section II. H. of this Conservation Easement, there shall be no construction of roads, trails, walkways, or paving in the Easement Area. I. Signs. No signs shall be permitted in the Easement Area except, interpretive signs describing restoration activities and the conservation values of the Easement Area, signs identifying the owner of the Property and the holder of the Conservation Easement, signs giving directions, or signs prescribing rules and regulations for the use of the Easement Area may be allowed. J. Dumping or Storing. Dumping or storage of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances or machinery, or other material in the Easement Area is prohibited. K. Grading, Mineral Use, Excavation, Dredging. There shall be no grading, Elling, excavation, dredging, mining, or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals, or other materials in the Easement Area, except as necessary to construct and maintain stream crossings provided for in Section II. A. of this Conservation Easement in order to enhance their long-term stability and minimize erosion. Any grading will be done in such a way that disturbance of the riparian area (300 foot buffer of the water course) is kept to a minimum. Grantor will seek permission, on a case-by-case basis, to remove any native vegetation for the purposes of grading or repair. L. .Water Quality and Drainage Patterns. There shall be no diking, draining, dredging, channeling, filling, leveling, pumping, 'impounding or related activities, or altering or tampering with water control structures or devices, or disruption or alteration of the restored, enhanced, or created drainage patterns. In addition, any activity by the Grantor diverting, causing, allowing or permitting ,the diversion of surface or underground water into, within or out of the Easement Area is not allowed. All removal of wetlands, polluting or discharging into waters, springs, seeps, or wetlands or use of pesticide or biocides is prohibited. M. Subdivision and Conveyance. No further subdivision, partitioning, or dividing of the Easement Area is allowed. Unless agreed to by the Grantee in writing, any future conveyance of the Easement Area and the rights as conveyed herein shall be as a single block of property. Any future conveyance of the remaining fee simple rights shall be subject to this 4 a~ Conservation Easement. Grantor agrees for itself, its successors and assigns, that in the event it transfers the Property, or any portion thereof, such transfer is subject to the Grantee's right of ingress, egress, and regress over and across the Property to the Easement Area for the purposes set forth herein. N. Development Rights. All development rights are removed from the Easement Area and shall not be transferred. O. Disturbance of Natural Features. Any change, disturbance, alteration or impairment of the natural features of the Easement Area or any intentional introduction of non- native plants, trees and/or animal species by Grantor is prohibited. The Grantor may request permission to vary from the above ,restrictions for good cause shown, provided that any such request is consistent with the purposes of this. Conservation Easement. The Grantor shall not vary from the above restrictions without first obtaining written approval from the N.C. Ecosystem Enhancement Program, whose mailing address is 1652 Mail Services Center, Raleigh, NC 27699-1652. III. GRANTEE RESERVED USES A. Ingress, Egress, Regress and Inspection. The Grantee, its employees and agents, successors and assigns, receive the perpetual right of general ingress, egress, and regress to the Easement Area over the Property at reasonable times to undertake any activities to restore, manage, maintain, enhance, and monitor the wetland and riparian resources of the Easement Area, in accordance with restoration activities or a long-term management plan. Unless otherwise specifically set forth in this Conservation Easement, the rights granted herein do not include or establish for the public any access rights. B. Restoration Activities. These activities include planting of trees, shrubs and herbaceous vegetation, installation of monitoring wells, utilization of heavy equipment to grade, fill, and prepare the soil, modification of the hydrology of the site, and installation of natural and manmade materials as needed to direct in-stream, above ground, and subterraneous water flow. IV. ENFORCEMENT AND REMEDIES A. Enforcement. To accomplish the purposes of this Conservation Easement, Grantee is allowed to prevent any activity within the Easement Area that is inconsistent with the purposes of this .Easement and to require the restoration of such areas or features of the Easement Area that may have been damaged by such activity or use. Upon any breach of the terms of this Conservation Easement by Grantor, their successors or assigns, that comes to the attention of the Grantee, the Grantee shall, except as provided below, notify the Grantor, their successors or assigns in writing of such breach. The Grantor shall have ninety (90) days after receipt of such notice to correct the conditions constituting such breach. If the breach remains uncured after ninety (90) days, the Grantee may enforce this Conservation Easement by appropriate legal proceedings including damages, injunctive and other relief. The Grantee shall also have the power and authority, consistent with its statutory authority: (a) to prevent any impairment of the Easement Area by acts which may be unlawful or in violation of this Conservation Easement; (b) to otherwise preserve or protect its interest in the Property; or (c) to seek damages from any appropriate person or entity. Notwithstanding the foregoing, the Grantee reserves the immediate right, without notice, to obtain a temporary restraining order, injunctive or other appropriate relief if the breach of the term of this Conservation Easement is or would irreversibly or otherwise materially impair the benefits to be derived from this Conservation Easement. The Grantor and Grantee acknowledge that under such circumstances damage to the Grantee would be irreparable and remedies at law will be inadequate. The rights and remedies of the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights and remedies available to Grantee in connection with this Conservation Easement. B. Inspection. The Grantee, its employees and agents, successors and assigns, have the right, with reasonable notice, to enter the Easement Area over the Property at reasonable times for the purpose of inspection to determine whether the Grantor, their successors or assigns are complying with the terms, conditions and restrictions of this Conservation Easement. C. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor, their successors or assigns, for any injury or change in the Easement Area caused by third parties, resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm, and 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 property or harm to the Property resulting from such causes. D. Costs of Enforcement. Beyond regular and typical monitoring, any costs incurred by Grantee in enforcing the terms of this Conservation Easement against Grantor, their successors or assigns, including, without limitation, any costs of restoration necessitated by Grantor's acts or omissions in violation of the terms of this Conservation Easement, shall be borne by Grantor. E. No Waiver. Enforcement of this Easement shall be at the discretion of the Grantee and any forbearance, delay or omission by Grantee to exercise its rights hereunder in the event of any breach of any.term set forth herein shall not be construed to be a waiver by Grantee. V. MISCELLANEOUS A. 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 the 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. B. Any notices shall be sent by registered or certified mail, return receipt requested to the parties at their addresses shown above or to other address(es) as either party establishes in writing upon notification to the other. C. Grantor shall notify Grantee in writing of the name and address and any party to whom the Property or any part thereof is to be transferred at or prior to the time said transfer is made. Grantor further agrees to make any subsequent lease, deed, or other legal instrument by 6 ?I which any interest in the Property is conveyed subject to the Conservation Easement herein created. D. The Grantor and Grantee agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interests in the Property or any portion thereof. E. This Conservation Easement may be amended, but only in a writing signed by all parties hereto, and provided such amendment does not affect the qualification of this Conservation Easement or the status of the Grantee under any applicable laws, and is consistent with the purposes of the Conservation Easement. F. The parties recognize and agree that the benefits of this Conservation Easement are in gross and assignable provided, however, that the Grantee hereby covenants and agrees, that in the event it transfers or assigns this Conservation Easement, the organization receiving the interest will be a qualified holder under N.C. Gen. Stat. § 121-34 et seq. and § 170(h) of the Internal Revenue Code, and the Grantee further covenants and agrees that the terms of the. transfer or assignment will be such that the transferee or assignee will be required to continue in perpetuity the conservation purposes described in this document. VI. QUIET ENJOYMENT Grantor reserves all remaining rights accruing from ownership of the Property, including the right to engage in or permit or invite others to engage in only those uses of the Easement Area that are expressly reserved herein, not prohibited or restricted herein, and are not inconsistent with the purposes of this Conservation Easement. Without limiting the generality of the foregoing, the Grantor expressly reserves to the Grantor, and the Grantor's invitees and licensees, the right of access to the Easement Area, and the right of quiet enjoyment of the Easement Area. TO HAVE AND TO HOLD the said rights and easements perpetually unto the State of North Carolina for the aforesaid purposes. AND Grantor covenants that Grantor is seized of said premises in fee and has the right to convey the permanent Conservation Easement herein granted; that the same are free from encumbrances and that Grantor will warrant and defend title to the same against the claims of all persons whomsoever. SIGNATURE PAGE FOLLOWS 7 3a IN TESTIMONY WHEREOF, the Grantor has hereunto set his hand and seal, the day and year first above written. ORANGE COUNTY, NORTH CAROLINA By: ATTEST: Donna S. Baker Clerk to the Board of Commissioners NORTH CAROLINA COUNTY OF ORANGE Moses Carey Jr., Chair Orange County Board of Commissioners 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 , 20 IVIy commission expires: Notary Public [Notarial Seal]