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HomeMy WebLinkAboutAgenda - 05-01-2018 8-j - Resolutions of Approval – Conservation Easements on Two Eno River Association Properties and Approval of Budget Amendment #8-C ORD-2018-016 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May 1, 2018 Action Agenda Item No. 8-j SUBJECT: Resolution of Approval – Conservation Easements on Two Eno River Association Properties and Approval of Budget Amendment #8-C DEPARTMENT: Environment, Agriculture, Parks and Recreation (DEAPR) ATTACHMENTS 1. Resolution of Approval - Iski 2. Resolution of Approval - Hobgood 3. June 6, 2017 Agenda Abstract and Excerpt from June 6, 2017 Approved BOCC Minutes 4. Location Map 5. Site Maps 6. Draft Conservation Easement - Iski 7. Draft Conservation Easement - Hobgood INFORMATION CONTACT: David Stancil, 245-2510 Kim Livingston, 245-2514 Rich Shaw, 245-2510 PURPOSE: To consider resolutions to approve the acceptance of conservation easements from the Eno River Association for two conservation properties that the Board agreed to help fund in June 2017, and approve Budget Amendment #8-C. BACKGROUND: The acquisition of conservation easements to protect highly important natural and cultural resource lands in Orange County is a longstanding goal of the Board of Commissioners, and is a priority of the Lands Legacy program. Since 2001, the County has partnered with landowners and other entities to protect 2,313 acres of significant natural areas and prime farmland with permanent conservation easements, leveraging over $3 million in outside funding and grants toward these easements. In June 2017, the Board approved County funding assistance for two purchases by the Eno River Association (ERA). ERA was awarded funding from the Clean Water Management Trust Fund for two fee-simple acquisitions of lands along the Upper Eno River corridor; the 56.3-acre Iski Property, and the 22.7-acre Hobgood Property. On June 6, 2017, a grant agreement between Orange County and the ERA was executed, awarding ERA $63,655 for the Iski Property purchase and $121,200 for the Hobgood Property purchase, contingent upon the closing of the properties by ERA, and agreed upon terms of conservation easements to be held by Orange County. ERA has now closed on both properties and as per the June 2017 grant agreement, ERA intends to grant permanent conservation easements on both properties to Orange County that restrict future development, protect forest and water resources, and help maintain rural character. 1 The Iski Property is located on Lebanon Road in Cheeks Township, a short distance downstream from the confluence of the East and West Forks of the Eno River. This confluence and the Upper Eno River corridor north and west of Hillsborough has long been a top priority for conservation in the Lands Legacy Program. The site is just upstream of Corporation Lake, near Duke Forest and other Orange County conservation lands. The Iski Property is entirely forested and has two small sheds, but is otherwise undeveloped. The property contains over one mile of stream frontage, of which 3,600 feet are on the Eno River itself, and 2,200 feet are on tributaries of the Eno. ERA plans to maintain the property as conservation open space and will make it available for public use. The Hobgood Property is located on Highland Farm Road, Hillsborough (Cheeks Township). The property is mostly wooded and completely undeveloped. The Hobgood Property has 800 feet of frontage on the east side of the East Fork Eno River. This property is significant as it is adjacent to 180 acres directly across the river owned by the ERA, and known as the Confluence Natural Area. Orange County already holds a conservation easement on 100 acres of the Confluence Natural Area between the East and West Forks of the river. The Hobgood Property has become part of that natural area scheduled to open to the public for low-impact recreation in May 2018. DEAPR Staff and the County Attorney have worked with ERA to prepare conservation easements that meet the needs and interests of both parties. Both easements will allow for a small parking area to be constructed outside of designated stream buffers. The Iski Property easement allows for a small building envelope surrounding the existing structures on the property. All other development rights will be extinguished through the conservation easements. DEAPR staff will monitor the properties on an annual basis. Copies of the draft easement agreements are attached along with maps showing the properties outlined in red. FINANCIAL IMPACT: The County’s financial participation in both projects was approved by the Board in June 2017, with payment to be made when the properties closed and the County received conservation easements. On June 6, 2017 the County agreed to provide $63,665 for the Iski purchase (and concurrent easement), and $121,200 for the Hobgood property (and easement). The County’s share of funds (a combined $184,855) as previously approved comes from existing funds budgeted and appropriated in the Lands Legacy program (Land Legacy Fund). With this allocation, approximately $2.76 million remains available in the Lands Legacy Capital Project. The following Budget Amendment #8-C provides for the use of the above mentioned funds, and amends the following Capital Project Ordinances: Lands Legacy Capital Project (-$184,855) - Project #20011 Revenues for this project: Current FY 2017-18 FY 2017-18 Amendment FY 2017-18 Revised Alternative Financing $3,103,972 ($184,855) $2,919,117 From General Fund $42,697 $0 $42,697 Donations $1,000 $0 $1,000 Appropriated Fund Balance $9,337 $0 $9,337 Total Project Funding $3,157,006 ($184,855) $2,972,151 2 Appropriated for this project: Current FY 2017-18 FY 2017-18 Amendment FY 2017-18 Revised Lands Legacy Program $3,157,006 ($184,855) $2,972,151 Total Costs $3,157,006 ($184,855) $2,972,151 Conservation Easements Capital Project ($184,855) - Project # 20006 Revenues for this project: Current FY 2017-18 FY 2017-18 Amendment FY 2017-18 Revised Alternative Financing $1,488,132 $184,855 $1,672,987 From General Fund $696,521 $0 $696,521 Donations $1,020 $0 $1,020 NC Agriculture Development Grant $135,480 $0 $135,480 Eno River Association $252,843 $0 $252,843 Upper Neuse Clean Water Initiative $54,000 $0 $54,000 NC Conservation Reserve Program $18,800 $0 $18,800 Contribution from Hillsborough $6,157 $0 $6,157 USDA Farmland Protection $1,436,000 $0 $1,436,000 Total Project Funding $4,088,953 $184,855 $4,273,808 Appropriated for this project: Current FY 2017-18 FY 2017-18 Amendment FY 2017-18 Revised Conservation Easements $4,088,953 $184,855 $4,273,808 Total Costs $4,088,953 $184,855 $4,273,808 SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to this item: • GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY The creation and preservation of infrastructure, policies, programs and funding necessary for residents to provide shelter, food, clothing and medical care for themselves and their dependents. This farm conservation easement will help ensure that this prime farmland remains available for cultivation and food production, helping to provide healthy local food to County residents and others. RECOMMENDATION(S): The Manager recommends the Board adopt and authorize the Chair to sign the resolutions (Attachments 1 and 2) approving the acceptance by Orange County of the Eno River Association conservation easements (Iski and Hobgood Property); and authorize the Chair and the Clerk to sign the conservation easement agreements, subject to final review by staff and County Attorney, with a closing and recordation of the documents expected to occur on or about June 30, 2018; and approve Budget Amendment #8-C. 3 RES-2018-031 Attachment 1 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Conservation Easement between Orange County and the Eno River Association WHEREAS, Orange County has adopted goals that promote the preservation of natural areas, wildlife habitat, prime farmland, and open space in the county; and WHEREAS, Orange County established the Lands Legacy Program for the purpose of protecting the most significant natural and cultural resources through partnerships with landowners and other conservation entities; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on riparian buffers within water supply watersheds; and WHEREAS, the Eno River Association- Iski Property includes approximately 56 acres in the Upper Eno critical watershed that includes 3,600 feet of Eno River stream frontage and 2,200 feet of Eno River tributaries 1,000 feet upstream of Corporation Lake – a drinking water supply reservoir for Orange and Alamance counties; and WHEREAS, The Eno River Association, the owners of the Iski property, wish to grant a permanent conservation easement to Orange County, which will protect the forested riparian corridors on the property; and WHEREAS, a conservation easement on this approximately 56 acres would ensure the preservation of this forested property and stream buffers for future generations; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the conservation easement for land owned by Eno River Association; 2) approve the execution of this conservation easement agreement with Eno River Association, in accordance with the terms of the proposed easement agreement, subject to final review by staff and the County Attorney; 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 June 30, 2018; and 4) authorize County staff to sign any and all closing documents upon consultation with the County Attorney. BE IT FURTHER RESOLVED that the Board thanks the Eno River Association for granting of this conservation easement through the Lands Legacy Program and for their continued partnership on land conservation in Orange County. This the 1st day of May, 2018. ____________________________________________ Mark Dorosin, Chair Orange County Board of Commissioners _____________________________ Donna Baker, Clerk to the Board 4 RES-2018-032 Attachment 2 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Conservation Easement between Orange County and the Eno River Association WHEREAS, Orange County has adopted goals that promote the preservation of natural areas, wildlife habitat, prime farmland, and open space in the county; and WHEREAS, Orange County established the Lands Legacy Program for the purpose of protecting the most significant natural and cultural resources through partnerships with landowners and other conservation entities; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on riparian buffers within water supply watersheds; and WHEREAS, the Eno River Association- Hobgood Property includes approximately 23 acres in the Upper Eno critical watershed that includes 800 feet of East Fork Eno River just upstream from the confluence of the East and West forks of the Eno River; and WHEREAS, The Eno River Association, the owners of the Hobgood property, wish to grant a permanent conservation easement to Orange County, which will protect the forested riparian corridors on the property; and WHEREAS, a conservation easement on this approximately 23 acres would ensure the preservation of this forested property and stream buffers for future generations; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the conservation easement for land owned by Eno River Association; 2) approve the execution of this conservation easement agreement with Eno River Association, in accordance with the terms of the proposed easement agreement, subject to final review by staff and the County Attorney; 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 June 30, 2018; and 4) authorize County staff to sign any and all closing documents upon consultation with the County Attorney. BE IT FURTHER RESOLVED that the Board thanks the Eno River Association for granting of this conservation easement through the Lands Legacy Program and for their continued partnership on land conservation in Orange County. This the 1st day of May, 2018. ____________________________________________ Mark Dorosin, Chair Orange County Board of Commissioners _____________________________ Donna Baker, Clerk to the Board 5 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 6, 2017 Action Agenda Item No. 8-e SUBJECT: Request for Funding Assistance - Eno River Association Clean Water Management Trust Fund Applications DEPARTMENT: Environment, Agriculture, Parks and Recreation (DEAPR) ATTACHMENTS 1. Letters from the Eno River Association 2. Location Map 3. Iski Site Map 4. Hobgood Site Map 5. Draft Letters of Funding Commitments 6. Orange County Grant Agreements INFORMATION CONTACT: David Stancil, 245-2510 Kim Livingston, 245-2514 Rich Shaw, 245-2511 PURPOSE: To consider a request for matching funds from the Eno River Association for Clean Water Management Trust Fund grant applications for the acquisitions of the Iski and Hobgood properties. BACKGROUND: The acquisition of conservation easements to protect highly important natural and cultural resource lands in Orange County is a longstanding goal of the Board of Commissioners, and is a priority of the Lands Legacy program. Since 2001, the County has partnered with landowners and other entities to protect 2,244 acres of significant natural areas and prime farmland with permanent conservation easements. The Eno River Association submitted Clean Water Management Trust Fund grant applications in February for two fee-simple acquisitions of lands along the Upper Eno River corridor – the 56.31-acre Iski property, and the 22.66-acre Hobgood property. It is the intent of the Eno River Association to have Orange County hold conservation easements on both the Iski and Hobgood properties. The Association requests matching fund assistance from Orange County for both acquisitions. The Eno River Association closed on the Iski Property on May 15, 2017, and has the Hobgood Property under contract contingent on receiving all necessary funding. The Hobgood property acquisition would also be augmented with an additional 19-acre conservation easement donation by the landowner on farm property across Highland Farm Road (please see Attachment 4). The Iski Property is located on Lebanon Road in Cheeks Township, a short distance downstream from the confluence of the East and West Forks of the Eno River. This confluence and the Upper Eno River corridor north and west of Hillsborough, has long been a top priority for conservation in the Lands Legacy Program. The site is just upstream of Corporation Lake, near Duke Forest and other Orange County conservation lands. The Iski property is entirely forested and has two small sheds, but is otherwise undeveloped. The property contains over one-mile of stream frontage, of which 3,600-feet are on the Eno River 6 itself, and 2,200-feet are on tributaries of the Eno. There are a number of trails on the property previously used by third parties for hiking and fishing and some motorized vehicle trail riding. The Eno River Association plans to maintain the property as conservation open space and will continue to make it available for public use, but will eliminate the use of motorized vehicles on the trails. The Hobgood Property, owned by Sam and Lynn Hobgood, is located on both sides of Highland Farm Road, Hillsborough (Cheeks Township). The property is mostly wooded and completely undeveloped. The 22.66-acres on the south side of the road, which would be purchased by the Eno River Association with the requested grant and matching funds, contains two subdivision lots. The Hobgood Property, which is already under contract with the Eno River Association, has 800-feet of frontage on the east side of the East Fork Eno River. This property is significant as it is adjacent to 180-acres directly across the river owned by the Eno River Association, known as the Confluence Natural Area. Orange County already holds a conservation easement on 100-acres of the Confluence Natural Area between the East and West Forks of the river. The Hobgood Property would become part of that natural area scheduled to open to the public for passive recreation in spring 2018. The Hobgood land on the north side of Highland Farm Road, which includes the additional conservation easement donation, lies on both sides of the East Fork Eno River and stretches almost all the way up to Lake Orange. The 19-acre donation easement, consisting of 3,700- feet of linear stream frontage, will include the 100-year flood plain on both sides of the river. Both the Iski and Hobgood properties are located on a stretch of the Eno River classified by the NC Department of Water Resources as Water Supply II, High Quality Waters, Nutrient Sensitive Waters, and as Drinking Water Assessment Area Susceptibility Rating of Higher. Both sections of the river are classified by the State’s Natural Heritage Program as the Eno River Aquatic Habitat due to the presence of rare and endangered species. The Eno River Association has secured matching funds for both projects from the City of Raleigh’s Watershed Protection Program (Upper Neuse Clean Water Initiative). Draft letters to the Clean Water Management Trust Fund are attached that would express the County’s commitment to providing the funding assistance requested. Grant agreements addressing the terms of the funding for each project are attached. FINANCIAL IMPACT: The Iski Property purchase price was $337,860. The value was determined by an appraisal by Kirkland and Associates. The total project cost including transaction costs is $353,970. Orange County’s proposed share is $63,655. The Eno River Association proposes the following funding sources for the Iski property: Orange County (Lands Legacy) $ 63,655 (18%) Eno River Association 62,029 (17%) City of Raleigh (Upper Neuse Clean Water Initiative) 69,830 (20%) Clean Water Management Trust Fund 158,456 (45%) $ 353,970 The Hobgood Property purchase price is $350,000 which is $10,000 below the value determined by an appraisal by Kirkland and Associates. The total project cost including transaction costs is $377,890. Orange County’s proposed share is $121,200. 7 The Eno River Association proposes the following funding sources for the Hobgood property: Orange County (Lands Legacy) $ 121,200 (32%) City of Raleigh (Upper Neuse Clean Water Initiative) 97,095 (26%) Clean Water Management Trust Fund 138,250 (37%) Triangle Community Foundation 21,345 (6%) $ 377,890 The County’s share of funds (up to $185,000 total) would come from existing funds budgeted and appropriated in the Lands Legacy program (Land Legacy Fund). At this time, a letter of intention of funding is needed – the actual funds would not be required to be transmitted until a later date. A conservation easement on both properties will be a result of the funding assistance, and would be forthcoming at a future meeting for approval. SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to this item: • GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY The creation and preservation of infrastructure, policies, programs and funding necessary for residents to provide shelter, food, clothing and medical care for themselves and their dependents. The protection of water quality for County residents, which would be augmented by these conservation projects, is consistent with the intent of the economic self-sufficiency goal. RECOMMENDATION(S): The Manager recommends the Board 1) approve the draft letters indicating the County’s intention to provide the matching funds requested and convey the letters to the Eno River Association for transmittal to the Clean Water Management Trust Fund; and 2) authorize the Manager to sign the attached grant agreements, subject to final review by the County Attorney. 8 APPROVED 9/5/2017 MINUTES BOARD OF COMMISSIONERS REGULAR MEETING June 6, 2017 7:00 p.m. The Orange County Board of Commissioners met in regular session on Tuesday, June 6, 2017 at 7:00 p.m. at the Whitted Building, in Hillsborough, N.C. COUNTY COMMISSIONERS PRESENT: Chair Dorosin and Commissioners Mia Burroughs, Barry Jacobs, Earl McKee, Mark Marcoplos, Renee Price and Penny Rich COUNTY COMMISSIONERS ABSENT: COUNTY ATTORNEYS PRESENT: John Roberts COUNTY STAFF PRESENT: County Manager Bonnie Hammersley, Deputy County Manager Travis Myren and Clerk to the Board Donna Baker (All other staff members will be identified appropriately below) 8. Consent Agenda • Removal of Any Items from Consent Agenda • Approval of Remaining Consent Agenda A motion was made by Commissioner Burroughs, seconded by Commissioner Rich to approve the remaining items on the Consent Agenda. e. Request for Funding Assistance - Eno River Association Clean Water Management Trust Fund Applications The Board considered a request for matching funds from the Eno River Association for Clean Water Management Trust Fund grant applications for the acquisitions of the Iski and Hobgood properties and authorized the Manager to sign. 9 US 70 W N C 8 6 N LEBANON RD WEST TEN RD HIG H R O C K R D MIL L C R E E K R D MT WI L L I N G R D B U C K H O R N R D E F L A N D C E D A R G R O V E R D IRA R D H A R M O N Y C H U R C H R D D I M M O C K S M I L L R D HI G H L A N D F A R M R D KENION RD BR O O K H O L L O W R D FR A Z I E R R D M A C E R D HALLS MILL RD BUSHY C O O K R D R I C H M O N D R D LEE ST C O L E M A N L O O P FAUC E T T E M I L L R D BOWMAN RD GO V E R N O R S C O T T R D PO T E A T R D BEN JOHNS T O N R D LAKE ORANGE RD LATIMER ST D O E R U N R D N F R A Z I E R R D RED GATE RD MO O R E F I E L D S R D ENO ST PE N D E R D R WEST HI L L A V E N GAILS TRL DALTON DR B E N W I L S O N R D DEER RUN TRL SIN A I C I R GYM RD HO O V E R R D SE R E N I T Y L N S E T T E R L N KATHY DR T I N N I N R D A R B O R L N R O Y A L O A K L N CO T T O N R U N R D WID G E O N W A Y MINKA FARM LN JACOBS TRL HI G H R I D G E D R E n o R i v e r Dry R u n Bac k C r e e k Mill C r e e k Ro c k y R u n Rock C r e e k W e s t F o r k E n o R i v e r Crab t r e e C r e e k St r o u d s C r e e k Cate s C r e e k Sevenmile C r e e k Rays C r e e k Lak e M i c h a e l McGowa n C r e e k Sevenm i l e C r e e k HILLSBOROUGH MEBANE MEBANE HILLSBOROUGH MEBANE MEBANE HILLSBOROUGH HILLSBOROUGH §¨¦40 §¨¦85§¨¦85 1 inch = 5,935 feetDate: 4/13/2018 ERA: Hobgood & Iski PropertiesVicinity Map ÜLegend Hobgood & Iski Properties Conservation Easements Held By County Conservation Easements Held By Others Reserviors County Parks and Open Space Non County Parks And Open Space Streets Major Streams 10 Eno River Association:Confluence Natural Area Ut E a s t F o r k E n o R i v e r ( L a k e O r a n g e ) Ut HIGHL A N D F A R M R D 1 inch = 256 feet Date: 4/13/2018 Eno River Association- Hobgood PropertyAerial Map Ü DEAPR 2017 Aerial Image Conservation Easements Held By County Conservation Easements Held By Others Streams Streets Parcels Hobgood Property 11 Ut Eno R i v e r Ut Ut LEBANON RD OR D I N A N C E A L Y OL D P A T H S T R L 1 inch = 333 feet Date: 4/13/2018 Eno River Association- Iski PropertyAerial Map Ü DEAPR 2017 Aerial Image 100 Year Floodplain 100 Year Floodway 500 Year Floodplain Parcels Iski Property Streams Streets 12 Page 1 of 18 This instrument prepared by Robin Lackey Jacobs and John Roberts Return to: John L. Roberts, Office of the Orange County Attorney Box 8181, 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 ____________________, 2018 by THE ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLEY, INC., a North Carolina nonprofit corporation, having an address of 4404 Guess Road, Durham, NC 27712 (hereinafter "Grantor") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee" or "the Grantee"). The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantor is the sole owner in fee simple of certain real property located in Cheeks Township, Orange County, North Carolina, described in Exhibit A hereto which is incorporated herein by reference, said property consisting of approximately 56.3 acres and hereinafter referred to as “the Property.” The Grantor and Grantee have agreed to subject the entire Property to this Conservation Easement, which shall also hereinafter be referred to as “the Easement Area.” B. The Grantee is a body politic and corporate, a political subdivision of the State of North Carolina, with powers prescribed in Chapter 153A of the North Carolina General Statutes. 13 Page 2 of 18 C. The Property consists primarily of woodland and riparian habitats for a variety of wildlife species of importance to the Grantors, the people of Orange County and the people of North Carolina. The property is bisected by Panther’s Branch Creek and an unnamed tributary stream, and includes approximately 3,600 feet of frontage on the Eno River upstream of Corporation Lake and Lake Ben Johnston, both public drinking water supply reservoirs serving the people of Orange County. It is a primary purpose of this Conservation Easement to protect the quality of the surface waters in the Eno River and the natural wildlife habitat it supports. To the extent practicable, the Grantor and Grantee wish to maintain the Easement Area as woodland and riparian habitat for the native flora and fauna of the North Carolina Piedmont, and to protect the quality of water running off from this land and into the Eno River, which river has both conservation value and is a public water supply for residents of Orange County. The grant of this Conservation Easement furthers said wish, and will serve the following “Conservation Purposes,” as such term is defined in Section 170 (h)(4)(A) of the Code: The Easement Area contains a natural area that has not been subject to significant development, which provides a “...relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,” as that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in regulations promulgated thereunder. Specifically, the Easement Area is habitat for a variety of native plants and animals known to inhabit the Upper Eno River Macrosite as described on Pages 78-82 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina (2004), by the North Carolina Natural Heritage Program. The Easement Area also includes land within a zone designated by Orange County as a “critical area” of a protected water supply watershed for the Co rporation Lake Reservoir and Lake Ben Johnson Reservoir. Another primary purpose of this Easement is to protect the undeveloped nature of the Grantor’s Property and, in doing so, help protect the high quality of that drinking water supply serving the people of Orange County. The Easement Area also contributes to the open space and rural character of northern Cheeks Township and the Upper Eno Protected Watershed, so classified in the Orange County Zoning Ordinance. It is a further purpose of this Easement to help to protect the rural character and open space of northern Cheeks Township. The natural and wildlife habitat resources of the Property, and its contribution to the protection of the area water supply and rural character, and the other conservation interests described herein are collectively referred to as the "Conservation Values" of the Easement Area. The Grantor and Grantee agree that the current uses of the Easement Area are consistent with the conservation purposes of this Conservation Easement. The conservation purposes of this easement, notwithstanding anything to the contrary contained herein, are also 14 Page 3 of 18 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) Natural & Cultural Systems Goal 7 of the Orange County Comprehensive Plan (adopted by the Orange County Board of Commissioners in 200 83, as amended) to maintain a “balanced and healthy diversity of native plant and animal populations” and “conserve high - priority natural areas and wildlife habitats, including wetlands, rivers and streams, floodplains, steep slopes, prime forests, wildlife corridors, and other critical habitats;. ” and (3) the Orange County Lands Legacy Action Plan, which was adopted by the Orange County Board of Commissioners on December 12, 2017, and which recognizes the need to protect riparian buffers in the critical area of the Upper Eno protected watershed; and (4) the protection of similar Orange County properties designed to protect conservation and open space values through conservation easements granted to the Grantee and others in the immediate vicinity of the Easement Area; and (5) Article XIV Section 5 of the Constitution of the State of North Carolina, which states “It shall be the policy of the State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this state its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty;” (6) NCGS § 139-2 et seq., which provides that “it is hereby declared …that the farm, forest and grazing lands of the State of North Carolina are among the basic assets of the State and the preservation of these lands is necessary to protect and promote the health, safety and general welfare of its people… it is hereby declared to be the policy of the legislature to provide for the conservation of the soil and resources of this State”; and (7) the Clean Water Management Trust Fund, authorized by NCGS § 143B- 135.234 et seq., which finances projects to acquire land and interests in land, including conservation easements for the purposes of providing environmental protection for surface waters and urban drinking water supplies; and (8) the Soil and Water Conservation Districts Act, authorized by NCGS § 139-1, et seq., which provides for the preservation of farm, forest and grazing lands; and (9) the zoning of the property by Orange County as Agricultural Residential. 15 Page 4 of 18 D. The characteristics and conservation values of the Easement Area, its current use, and state of improvement, are described in a report entitled “Baseline Report for the Panther’s Branch Property,” dated April 2018 (hereafter “the Baseline Report”) prepared by the Grantor, of which a summary is attached as Exhibit B to this Conservation Easement. The Grantor worked with the Grantee to ensure that the report is a complete and accurate description of the Easement Area as of the date of this Conservation Easement. It will be used by the Grantor and Grantee to assure that any future changes in the use of the Easement Area will be consistent with the terms of this Conservation Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the present condition of the Easement Area if there is a question about its use. E. The Grantor and Grantee have the common purpose of conserving the above-described conservation values of the Easement Area in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the Uniform North Carolina Conservation and Historic Preservation Agreements Act, NCGS § 121-34 et seq., which provides that conservation easements are “interests in land,” which may be effective “perpetually;” which provides for the enforceability of restrictions, easements, covenants or conditions "…appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses…;" and which provide for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvements less any reduction in value caused by the agreement"; and the Grantor and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, for the reasons given and other good and valuable consideration, and in consideration of their mutual covenants, terms, conditions and restrictions contained herein, the Grantor hereby voluntarily grants and conveys to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual Conservation Easement in the Property of the nature and character as follows, which Easement is an immediately vested interest in real property of the nature and character described herein: 1. PURPOSE. As outlined in the Recitals above, the purposes of this Conservation Easement are to ensure that the Easement Area will be retained forever, predominantly in its natural, forested, and open space condition; to protect native plants and animals, and plant communities on the Easement Area, while allowing certain limited uses on the Easement Area that are compatible with and not destructive of the conservation values of the Easement Area; and to prevent any use of the Easement Area that will significantly impair or interfere with conservation values or interests of the Easement Area. Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Easement Area that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantor to take any action to restore the condition of the Easement Area after any act of 16 Page 5 of 18 nature or other event over which Grantor had no control. Grantor understands that nothing in this Conservation Easement relieves it of any obligation or restriction on the use of the Easement Area imposed by law. 2. PROPERTY USES. Any activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantor are set forth in Paragraph 3 below. 2.1 Subdivision and Conveyance. The Easement Area consists of two tax parcels which are described in Exhibit A. The Easement Area may not be further divided, subdivided or partitioned to establish additional parcels. Any future conveyance of the fee simple interest in the Easement Area shall be subject to this Conservation Easement. Grantor agrees for itself, its successors and assigns, that in the event it transfers the Easement Area, such transfer is subject to the Grantee’s right of ingress, egress, and regress over and across the Easement Area for the purposes set forth herein. 2.2 Construction. The Grantor’s rights to construct or reconstruct buildings and other improvements are described in subparagraphs (a) through (d) below. Any construction or reconstruction not permitted below is prohibited. Before undertaking any construction or reconstruction that requires advance permission, the Grantor shall notify Grantee and obtain written permission. All construction or reconstruction is subject to Orange County zoning regulations and must be consistent with permits required by and issued by Orange County under its laws and ordinances for such construction activities. (a) Fences – Existing fences may be repaired and replaced, and new fences may be built on the Property to identify property boundaries without any further permission of Grantee. (b) Existing Structures & Improvements – The remains of a former residential structure and outbuilding exist in a location identified as “AREA A” on that Plat recorded in Plat Book _______, Page _______ of the Orange County Registry and attached to this easement document as Exhibit C. Existing structures and improvements may be repaired and replaced within “AREA A” and new buildings located within “AREA A” may be constructed without further permission from the Grantee provided that such construction meets all applicable setback, zoning and construction regulations. 17 Page 6 of 18 (c) New Parking Area Improvements – New parking area improvements consisting of a driveway, parking area, fencing, and a vault privy system may be built without any further permission of Grantee provided that such improvements are located within the area marked as " AREA P” on that Plat recorded in Plat Book _______, Page _______ of the Orange County Registry and attached to this easement document as Exhibit C provided that such construction meets all applicable setback, zoning and construction regulations. Any new structures or improvements proposed for locations outside of the "AREA A" or “AREA P” shall be for educational or recreational purposes only and may be built only with the advance written permission of the Grantee. The Grantee shall give such permission within a reasonable time if it determines that the proposed structure or improvement would not diminish or impair the Conservation Values of the Easement Area or otherwise be inconsistent with this Conservation Easement. (d) Utility Services and Septic Systems – Installation, maintenance, repair, replacement, removal and relocation of electric, water and water or other public or private utilities, including telephone or other communication services over or under the Easement Area for the purpose of providing electrical, water, other utilities to serve improvements within “AREA A” or “AREA P,” and the right to grant easements over and under the Easement Area for such purposes, is permitted. Grantors shall not permit or grant easements for utility transmission or distribution facilities or systems without the written consent of the Grantee. All other utilities are prohibited on the Easement Area. Cellular communication towers or structures are also prohibited. (e) Pedestrian Trails – Pedestrian trails may be constructed and maintained to support the recreational and educational uses of the Easement Area permitted by this Conservation Easement. Such trails must be constructed of a pervious surface and in accordance with best management practices to minimize soil erosion and water quality impacts, and may not be more than six feet (6’) wide. Grantor reserves the right to construct no more than two (2) pedestrian bridges to cross over streams as part of a future trail system, subject to Grantee approval. 2.4 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantor shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Easement Area, including, but not limited to, hiking, picnicking, hunting, fishing, bird watching, and other 18 Page 7 of 18 recreational uses that require no buildings, facilities, surface alteration or other development of the land. Grantor reserves the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Easement Area, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation values of the Easement Area. 2.5 Educational Use. Grantor reserves the right to engage in and permit others to engage in educational uses in the Easement Area not inconsistent with this Conservation Easement, and the right of access to the Easement Area for such purposes including organized educational activities such as site visits and observations. 2.6 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and horticultural use of any portion of the Easement Area is prohibited. 2.7 Forest Vegetation Management. Commercial timbering of trees within the Easement Area is prohibited. Grantor shall have the right to a) cut and remove diseased trees, shrubs, or other plants; b) cut and remove invasive (usually non-native) trees, shrubs and other plants; c) cut and remove undesirable early succession trees and replant with more desirable hardwood species; and d) to cut firebreaks. Trees may also be removed to prevent personal injury and property damage, or to salvage wind-thrown timber. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction of non-native animals, or disturbance or change in the natural habitat in any manner. All forest management activities must be pursuant to a Forest Management Plan prepared by a North Carolina Registered Forester, the selection of whom is mutually agreed upon by Grantor and Grantee and which management activities must be agreed to in advance by Grantee and Grantor. 2.8 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the improvements permitted herein, b) the maintenance of hiking trails permitted herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal ecosystems native to the locality. 2.9 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Easement Area that would be detrimental to water purity or, except as specified herein, that could alter the natural water level or flow in or over the Easement Area. There shall be no alteration, depletion or extraction of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies on the Easement Area. Diking, draining, filling or removal of wetlands is prohibited. 19 Page 8 of 18 2.10 Natural Resource Restoration and Enhancement Activities. Notwithstanding any terms contained within this Conservation Easement, Grantor may engage or contract others to engage in any activity designed to repair, restore, or otherwise enhance the natural resources found or once present on the Easement Area, such as the restoration of the riparian forest corridors, so long as such activities are consistent with the Conservation Values of this Conservation Easement and consistent with a management plan prepared for this property and approved in advance by the Grantee. 2.11 Signage. No signs or billboards or other advertising displays are allowed on the Easement Area except as otherwise permitted herein and as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not diminish the scenic character of the Easement Area may be displayed to identify the conservation values of the Easement Area, to identify the Conservation Easement, to give directions, to advertise or regulate permitted uses on the Easement Area and prescribe rules and regulations for educational use of the Easement Area, to advertise the Easement Area for sale or rent, to post the Easement Area against trespassers, to identify the Grantor as fee simple owner of the Easement Area, to identify the Grantee as holder of the Conservation Easement, and to identify other grant funders of the Grantee’s acquisition or management of the Easement Area. 2.12 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by Grantee to control invasive species detrimental to the conservation values of the Easement Area. 2.13 No Dumping. There shall be no storage or dumping of trash, garbage, abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous substance, or toxic waste on the Easement Area. There shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2.14 Predator Control. Grantor shall have the right to control, destroy, or trap predatory and problem animals that pose a material threat to livestock and/or humans by means and methods with prior written approval of Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques. 2.15 Commercial Development. Any commercial or industrial use of or activity within the Easement Area is prohibited. This restriction on use shall not be construed to prohibit use of the Easement Area for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis. 20 Page 9 of 18 2.16 Development Rights. Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or described, or to any other property. 3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Easement Area not prohibited by this Conservation Easement. Prior to making any change in use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. This determination by Grantee shall be made in writing. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is subject to the terms of this Conservation Easement. 4. GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the purposes of this Conservation Easement, the following rights are granted to Grantee and the following responsibilities are reserved to Grantee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after reasonable advance notice to Grantor or with Grantor’s prior verbal consent, to enter the Easement Area for the purposes of: (a) inspecting the Easement Area to determine whether the Grantor, its representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the Easement Area. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or at Grantee's direction or with Grantee's permission shall be reported to Grantor. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantor or at Grantor’s direction or with Grantor’s permission shall be reported to Grantee. 21 Page 10 of 18 (d) Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Easement Area. Grantee will consult with Grantor prior to implementing any such control activities. 5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantor, or in any way to affect any existing obligation of the Grantor as owner of the Easement Area. Among other things, this means: (a) Taxes – The Grantor shall continue to be solely responsible for payment of all taxes and assessments levied against the Easement Area. If Grantee is ever required to pay any taxes or assessments on its interest in the Easement Area, the Grantor will reimburse Grantee for the same. (b) Upkeep and Maintenance – The Grantor retain all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Easement Area, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no obligation for the upkeep or maintenance of the Easement Area. (c) Liability and Indemnification – Grantor agrees to indemnify and hold Grantee harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the Easement Area, or any claim thereof, unless due to the negligence of Grantee or agents of Grantee, in which case liability shall be as provided by law. In addition, Grantor agrees to maintain liability insurance covering the Easement Area with the limits as follows: (i) $300,000 per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per occurrence for property damage. These policy limits may be amended from time to time by written agreement of the parties to which the parties agree to be bound. Additionally, Grantor warrants that Grantee is and will remain a named insured on Easement Area insurance policies covering the Easement Area. Grantor shall provide Grantee with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 6. ACCESS. No right of access by the general public to any portion of the Easement Area is conveyed by this Conservation Easement. However, the public has the right to view the Easement Area from adjacent publicly accessible areas such as public roads and waterways. 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. 22 Page 11 of 18 (a) With reasonable advance notice provided to the Grantor or with the Grantor’s prior verbal consent, the Grantee shall have the right to enter the Easement Area for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the conservation values of the Easement Area, the Grantee shall give the Grantor written notice of the violation and thirty (30) days to cure the violation, before commencing any legal proceedings. The Grantee may obtain an injunction to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring the Grantor to restore the Easement Area to its condition prior to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantor shall reimburse the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys’ fees. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In any case where the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney’s fee to the prevailing party as provided by law. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. (b) Grantee shall not bring any action against Grantor for any injury or change to the Easement Area caused by third parties, or resulting from causes beyond the Grantor’s control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Easement Area or harm to the Easement Area resulting from such action. 8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer, assign, convey, or otherwise to co-hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under NCGS 121-34 et seq., provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Deed. If the Grantee ever ceases to exist or no longer qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Conservation Easement. 9. TRANSFER OF EASEMENT AREA. The Grantor agrees to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which it transfers or divests itself of any interest, including leasehold interest, in all or a portion of the 23 Page 12 of 18 Easement Area. The Grantor shall notify the Grantee in writing at least thirty (30) days before conveying the Easement Area, or any part thereof or interest therein. Failure of Grantor to do so shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 10. AMENDMENT OF EASEMENT. This Conservation Easement may be amended only with the written consent of Grantor and Grantee. Any such amendment shall be consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., or any regulations promulgated pursuant to that law. The Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. PROCEDURE IN THE EVENT OF TERMINATION OF CONSERVATION EASEMENT. If it is determined that conditions on or surrounding the Property have changed so much that it is impossible to fulfill the conservation purposes set forth above, a court with jurisdiction may, at the joint request of both the Grantors and Grantees, terminate this Conservation Easement. If condemnation of a part of the Property or of the entire Property by public authority renders it impossible to fulfill any of these conservation purposes, the Conservation Easement may be terminated through the condemnation proceedings. At the time of the conveyance of the Conservation Easement to the Grantee, this Conservation Easement gives rise to a real property right, immediately vested in the Grantee. If the Conservation Easement is terminated and the Property is sold or taken for public use, then, as required by Sec. 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to sixteen percent (16%) of the net proceeds attributable to the sale of the Property (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 Grantor shall not be responsible to share any proceeds awarded. All condemnation related expenses, including reasonable attorney fees, incurred by the Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 24 Page 13 of 18 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 Easement Area in fee simple and have good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages not subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, subject to any easements or encumbrances of record. Provided, however, that the Grantor and Grantee acknowledge that part of the Property is also encumbered by a Conservation Easement held by the State of North Carolina recorded in Book _______, Page _______, of the Orange County Registry, the area of said easement being shown as “11.75 Ac In Conservation Easement” and “20.01 Ac In Conservation Easement” on that Plat recorded in Plat Book _______, Page _______, of the Orange County Registry. 15. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantor: To the Grantee: Eno River Association Orange County Department of Environment 4404 Guess Road Agriculture, Parks and Recreation Durham, NC 27712 Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 16. ENVIRONMENTAL CONDITION. The Grantor covenants and represents that it knows of no release or threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws. The Grantor hereby promises to hold harmless and indemnify the Grantee against all litigation, claims, demands, penalties and damages, including reasonable attorneys’ fees, arising from or connected with the release or threatened release by Grantor, its agents, assigns, and guests, of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Law. “Environmental Law” or “Environmental Laws” means any and all Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste, hazardous materials, worker and community right-to-know, hazard communication noise, radioactive 25 Page 14 of 18 material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect. “Hazardous Materials” means any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials and any other element, compound, mixture, solution or substance which may pose a present or potential hazard to human health or the environment. 17. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. 18. PARTIES. Every provision of this Conservation Easement that applies to the Grantor or Grantee shall also apply to their respective assigns, and all other successors as their interest may appear. This Conservation Easement shall not be construed to benefit or to create any rights in any third parties, including but not limited to the general public. 19. RE-RECORDING. In order to ensure the perpetual enforceability of the Conservation Easement, the Grantee is authorized to re-record this instrument or any other appropriate notice or instrument. 20. MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Easement Area. 21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor to use the Easement Area as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 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 as of the date recorded in the Orange County Registry of Deeds. 26 Page 15 of 18 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.] 27 Page 16 of 18 IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLEY, INC. By: ___________________________ Alanna Howard, President ATTEST: By: ___________________________ Bercedis Peterson, Secretary Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: _______________________ Mark Dorosin., Chair Orange County Board of Commissioners ATTEST: By: _______________________ Donna S. Baker, Clerk to the Board of Commissioners 28 Page 17 of 18 Acknowledgments NORTH CAROLINA COUNTY OF _______________ I, ___________________________ a Notary Public of the County and State aforesaid, certify that Alanna Howard personally came before me this day and acknowledged that she is President of the Board of Directors for the Association for the Preservation of the Eno River Valley, Inc., a corporation existing under the laws of the State of North Carolina, party to this Agreement, and acknowledge this Indenture to be her act and deed and the act and deed of said corporation; that the signature of the President thereto is in her own proper handwriting and the seal affixed is the common and corporate seal of said corporation, and that her act of sealing, executing, acknowledging and delivering said Indenture was duly authorized by a resolution of the Board of Directors of said corporation. . Witness my hand and official stamp or seal this the ____ day of __________, 2018. _______________________________ Notary Public My commission expires: ____________________ NORTH CAROLINA COUNTY OF ORANGE I, ____________________________, a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the ____ day of __________, 2018. __________________________ Notary Public My commission expires: ____________________ 29 Page 18 of 18 EXHIBIT A BEING ALL OF LOTS 3-B AND 4, according to the plat and survey thereof entitled, “Conservation Easement Property Surveyed for State of North Carolina, Clean Water Management Trust Fund & Eno River Association, Grant #2017-025” recorded in Plat Book _______, Page _______, Orange County Registry, to which plat reference is hereby made for a more particular description of same, and being the same real property conveyed to the Association for the Preservation of the Eno River Valley, Inc. by deed recorded in Book 6303, Page 520, Orange County Registry. 30 Page 1 of 17 This instrument prepared by Robin Lackey Jacobs and John Roberts Return to: John L. Roberts, Office of the Orange County Attorney Box 8181, 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 ____________________, 2018 by THE ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLEY, INC., a North Carolina nonprofit corporation, having an address of 4404 Guess Road, Durham, NC 27712 (hereinafter "Grantor") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee" or "the Grantee"). The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantor is the sole owner in fee simple of certain real property located in Cheeks Township, Orange County, North Carolina, described in Exhibit A hereto which is incorporated herein by reference, said property consisting of approximately 22.66 acres and hereinafter referred to as “the Property.” The Grantor and Grantee have agreed to subject the entire Property to this Conservation Easement, which shall also hereinafter be referred to as “the Easement Area.” B. The Grantee is a body politic and corporate, a political subdivision of the State of North Carolina, with powers prescribed in Chapter 153A of the North Carolina General Statutes. 31 Page 2 of 17 C. The Property consists primarily of woodland and riparian habitats for a variety of wildlife species of importance to the Grantor, the people of Orange County and the people of North Carolina. The property is bisected by Panther’s Branch Creek and an unnamed tributary stream, and includes approximately 800 feet of frontage on the East Fork Eno River upstream of Corporation Lake and Lake Ben Johnston, both public drinking water supply reservoirs serving the people of Orange County. It is a primary purpose of this Conservation Easement to protect the quality of the surface waters in the Eno River and the natural wildlife habitat it supports. To the extent practicable, the Grantor and Grantee wish to maintain the Easement Area as woodland and riparian habitat for the native flora and fauna of the North Carolina Piedmont, and to protect the quality of water running off from this land and into the Eno River, which river has both conservation value and is a public water supply for residents of Orange County. The grant of this Conservation Easement furthers said wish, and will serve the following “Conservation Purposes,” as such term is defined in Section 170 (h)(4)(A) of the Code: The Easement Area contains a natural area that has not been subject to significant development, which provides a “...relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,” as that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in regulations promulgated thereunder. Specifically, the Easement Area is habitat for a variety of native plants and animals known to inhabit the Upper Eno River Macrosite as described on Pages 78-82 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina (2004), by the North Carolina Natural Heritage Program. The Easement Area also includes land within a zone designated by Orange County as a “critical area” of a protected water supply watershed fo r the Corporation Lake Reservoir and Lake Ben Johnson Reservoir. Another primary purpose of this Easement is to protect the undeveloped nature of the Grantor’s Property and, in doing so, help protect the high quality of that drinking water supply serving the people of Orange County. The Easement Area also contributes to the open space and rural character of northern Cheeks Township and the Upper Eno Protected Watershed, so classified in the Orange County Zoning Ordinance. It is a further purpose of this Easement to help to protect the rural character and open space of northern Cheeks Township. The natural and wildlife habitat resources of the Property, and its contribution to the protection of the area water supply and rural character, and the other conservation interests described herein are collectively referred to as the "Conservation Values" of the Easement Area. The Grantor and Grantee agree that the current uses of the Easement Area are consistent with the conservation purposes of this Conservation Easement. The conservation purposes of this easement, notwithstanding anything to the contrary contained herein, are also 32 Page 3 of 17 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) Natural & Cultural Systems Goal 7 of the Orange County Comprehensive Plan (adopted by the Orange County Board of Commissioners in 2008, as amended) to maintain a “balanced and healthy diversity of native plant and animal populations” and “conserve high - priority natural areas and wildlife habitats, including wetlands, rivers and streams, floodplains, steep slopes, prime forests, wildlife corridors, and other critical habitats;” and (3) the Orange County Lands Legacy Action Plan, which was adopted by the Orange County Board of Commissioners on December 12, 2017, and which recognizes the need to protect riparian buffers in the critical area of the Upper Eno protected watershed; and (4) the protection of similar Orange County properties designed to protect conservation and open space values through conservation easements granted to the Grantee and others in the immediate vicinity of the Easement Area; and (5) Article XIV Section 5 of the Constitution of the State of North Carolina, which states “It shall be the policy of the State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this state its forests, wetlands, estuaries, beaches, historical sites, openlands, and places of beauty;” (6) NCGS § 139-2 et seq., which provides that “it is hereby declared …that the farm, forest and grazing lands of the State of North Carolina are among the basic assets of the State and the preservation of these lands is necessary to protect and promote the health, safety and general welfare of its people… it is hereby declared to be the policy of the legislature to provide for the conservation of the soil and resources of this State”; and (7) the Clean Water Management Trust Fund, authorized by NCGS § 143B- 135.234 et seq., which finances projects to acquire land and interests in land, including conservation easements for the purposes of providing environmental protection for surface waters and urban drinking water supplies; and (8) the Soil and Water Conservation Districts Act, authorized by NCGS § 139-1, et seq., which provides for the preservation of farm, forest and grazing lands; and (9) the zoning of the property by Orange County as Agricultural Residential. 33 Page 4 of 17 D. The characteristics and conservation values of the Easement Area, its current use, and state of improvement, are described in a report entitled “Baseline Report for the Hobgood Lots,” dated April 2018 (hereafter “the Baseline Report”) prepared by the Grantor, of which a summary is attached as Exhibit B to this Conservation Easement. The Grantor worked with the Grantee to ensure that the report is a complete and accurate description of the Easement Area as of the date of this Conservation Easement. It will be used by the Grantor and Grantee to assure that any future changes in the use of the Easement Area will be consistent with the terms of this Conservation Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the present condition of the Easement Area if there is a question about its use. E. The Grantor and Grantee have the common purpose of conserving the above-described conservation values of the Easement Area in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the Uniform North Carolina Conservation and Historic Preservation Agreements Act, NCGS § 121-34 et seq., which provides that conservation easements are “interests in land,” which may be effective “perpetually;” which provides for the enforceability of restrictions, easements, covenants or conditions "…appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses…;" and which provide for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvements less any reduction in value caused by the agreement"; and the Grantor and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, for the reasons given and other good and valuable consideration, and in consideration of their mutual covenants, terms, conditions and restrictions contained herein, the Grantor hereby voluntarily grants and conveys to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual Conservation Easement in the Property of the nature and character as follows, which Easement is an immediately vested interest in real property of the nature and character described herein: 1. PURPOSE. As outlined in the Recitals above, the purposes of this Conservation Easement are to ensure that the Easement Area will be retained forever, predominantly in its natural, forested, and open space condition; to protect native plants and animals, and plant communities on the Easement Area, while allowing certain limited uses on the Easement Area that are compatible with and not destructive of the conservation values of the Easement Area; and to prevent any use of the Easement Area that will significantly impair or interfere with conservation values or interests of the Easement Area. Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Easement Area that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantor to take any action to restore the condition of the Easement Area after any act of 34 Page 5 of 17 nature or other event over which Grantor had no control. Grantor understands that nothing in this Conservation Easement relieves it of any obligation or restriction on the use of the Easement Area imposed by law. 2. PROPERTY USES. Any activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantor are set forth in Paragraph 3 below. 2.1 Subdivision and Conveyance. The Easement Area consists of two tax parcels that are described in Exhibit A. The Easement Area may not be further divided, subdivided or partitioned to establish additional parcels. Any future conveyance of the fee simple interest in the Easement Area shall be subject to this Conservation Easement. Grantor agrees for itself, its successors and assigns, that in the event it transfers the Easement Area, such transfer is subject to the Grantee’s right of ingress, egress, and regress over and across the Easement Area for the purposes set forth herein. 2.2 Construction. The Grantor’s rights to construct or reconstruct buildings and other improvements are described in subparagraphs (a) through (d) below. Any construction or reconstruction not permitted below is prohibited. Before undertaking any construction or reconstruction that requires advance permission, the Grantor shall notify Grantee and obtain written permission. All construction or reconstruction is subject to Orange County zoning regulations and must be consistent with permits required by and issued by Orange County under its laws and ordinances for such construction activities. (a) Fences – Existing fences may be repaired and replaced, and new fences may be built on the Property to identify property boundaries without any further permission of Grantee. (b) New Parking Area Improvements – New parking area improvements consisting of a driveway, parking area, and fencing, may be built without any further permission of Grantee provided that such improvements are located within the area shown as “Eno River Trace Variable Width Private R/W” or the area shown as " AREA P” on that Plat recorded in Plat Book _______, Page _______ of the Orange County Registry and attached to this easement document as Exhibit C provided that such construction meets all applicable setback, zoning, and construction regulations. 35 Page 6 of 17 Any new structures or improvements proposed for locations outside of the "Eno River Trace Variable Width Private R/W" or “AREA P” shall be for educational or recreational purposes only and may be built only with the advance written permission of the Grantee. The Grantee shall give such permission within a reasonable time if it determines that the proposed structure or improvement would not diminish or impair the Conservation Values of the Easement Area or otherwise be inconsistent with this Conservation Easement. (d) Utility Services and Septic Systems – Grantors shall not permit or grant easements for utility transmission or distribution facilities or systems without the written consent of the Grantee. All other utilities are prohibited on the Easement Area. Cellular communication towers or structures are also prohibited. (e) Pedestrian Trails – Pedestrian trails may be constructed and maintained to support the recreational and educational uses of the Easement Area permitted by this Conservation Easement. Such trails must be constructed of a pervious surface and in accordance with best management practices to minimize soil erosion and water quality impacts, and may not be more than six feet (6’) wide. Grantor reserves the right to construct no more than two (2) pedestrian bridges to cross over streams as part of a future trail system, subject to Grantee approval. 2.4 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantor shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Easement Area, including, but not limited to, hiking, picnicking, hunting, fishing, bird watching, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land. Grantor reserves the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Easement Area, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation values of the Easement Area. 2.5 Educational Use. Grantor reserves the right to engage in and permit others to engage in educational uses in the Easement Area not inconsistent with this Conservation Easement, and the right of access to the Easement Area for such purposes including organized educational activities such as site visits and observations. 2.6 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and horticultural use of any portion of the Easement Area is prohibited. 36 Page 7 of 17 2.7 Forest Vegetation Management. Commercial timbering of trees within the Easement Area is prohibited. Grantor shall have the right to a) cut and remove diseased trees, shrubs, or other plants; b) cut and remove invasive (usually non-native) trees, shrubs and other plants; c) cut and remove undesirable early succession trees and replant with more desirable hardwood species; and d) to cut firebreaks. Trees may also be removed to prevent personal injury and property damage, or to salvage wind-thrown timber. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction of non-native animals, or disturbance or change in the natural habitat in any manner. All other forest management activities are prohibited. 2.8 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the improvements permitted herein, b) the maintenance of hiking trails permitted herein, c) the combating of erosion or flooding, and d) to enhance the plant and animal ecosystems native to the locality. 2.9 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Easement Area that would be detrimental to water purity or, except as specified herein, that could alter the natural water level or flow in or over the Easement Area. There shall be no alteration, depletion or extraction of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies on the Easement Area. Diking, draining, filling or removal of wetlands is prohibited. 2.10 Natural Resource Restoration and Enhancement Activities. Notwithstanding any terms contained within this Conservation Easement, Grantor may engage or contract others to engage in any activity designed to repair, restore, or otherwise enhance the natural resources found or once present on the Easement Area, such as the restoration of the riparian forest corridors, so long as such activities are consistent with the Conservation Values of this Conservation Easement and consistent with a management plan prepared for this property and approved in advance by the Grantee. 2.11 Signage. No signs or billboards or other advertising displays are allowed on the Easement Area except as otherwise permitted herein and as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not diminish the scenic character of the Easement Area may be displayed to identify the conservation values of the Easement Area, to identify the Conservation Easement, to give directions, to advertise or regulate permitted uses on the Easement Area and prescribe rules and regulations for educational use of the Easement Area, to advertise the Easement Area for sale or rent, to post 37 Page 8 of 17 the Easement Area against trespassers, to identify the Grantor as fee simple owner of the Easement Area, to identify the Grantee as holder of the Conservation Easement, and to identify other grant funders of the Grantee’s acquisition or management of the Easement Area. 2.12 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by Grantee to control invasive species detrimental to the conservation values of the Easement Area. 2.13 No Dumping. There shall be no storage or dumping of trash, garbage, abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous substance, or toxic waste on the Easement Area. There shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2.14 Predator Control. Grantor shall have the right to control, destroy, or trap predatory and problem animals that pose a material threat to livestock and/or humans by means and methods with prior written approval of Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques. 2.15 Commercial Development. Any commercial or industrial use of or activity within the Easement Area is prohibited. This restriction on use shall not be construed to prohibit use of the Easement Area for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis. 2.16 Development Rights. Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or described, or to any other property. 3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Easement Area not prohibited by this Conservation Easement. Prior to making any change in use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. This determination by Grantee shall be made in writing. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is subject to the terms of this Conservation Easement. 38 Page 9 of 17 4. GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the purposes of this Conservation Easement, the following rights are granted to Grantee and the following responsibilities are reserved to Grantee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after reasonable advance notice to Grantor or with Grantor’s prior verbal consent, to enter the Easement Area for the purposes of: (a) inspecting the Easement Area to determine whether the Grantor, its representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the Easement Area. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or at Grantee's direction or with Grantee's permission shall be reported to Grantor. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantor or at Grantor’s direction or with Grantor’s permission shall be reported to Grantee. (d) Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Easement Area. Grantee will consult with Grantor prior to implementing any such control activities. 5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantor, or in any way to affect any existing obligation of the Grantor as owner of the Easement Area. Among other things, this means: (a) Taxes – The Grantor shall continue to be solely responsible for payment of all taxes and assessments levied against the Easement Area. If Grantee is ever required to pay any taxes or assessments on its interest in the Easement Area, the Grantor will reimburse Grantee for the same. (b) Upkeep and Maintenance – The Grantor retain all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and 39 Page 10 of 17 maintenance of the Easement Area, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no obligation for the upkeep or maintenance of the Easement Area. (c) Liability and Indemnification – Grantor agrees to indemnify and hold Grantee harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the Easement Area, or any claim thereof, unless due to the negligence of Grantee or agents of Grantee, in which case liability shall be as provided by law. In addition, Grantor agrees to maintain liability insurance covering the Easement Area with the limits as follows: (i) $300,000 per person for personal injury or death, up to $300,000 per occurrence; and (ii) $300,000 per occurrence for property damage. These policy limits may be amended from time to time by written agreement of the parties to which the parties agree to be bound. Additionally, Grantor warrants that Grantee is and will remain a named insured on Easement Area insurance policies covering the Easement Area. Grantor shall provide Grantee with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 6. ACCESS. No right of access by the general public to any portion of the Easement Area is conveyed by this Conservation Easement. However, the public has the right to view the Easement Area from adjacent publicly accessible areas such as public roads and waterways. 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. (a) With reasonable advance notice provided to the Grantor or with the Grantor’s prior verbal consent, the Grantee shall have the right to enter the Easement Area for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the conservation values of the Easement Area, the Grantee shall give the Grantor written notice of the violation and thirty (30) days to cure the violation, before commencing any legal proceedings. The Grantee may obtain an injunction to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring the Grantor to restore the Easement Area to its condition prior to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantor shall reimburse the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys’ fees. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In any case where the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, the court may 40 Page 11 of 17 award a reasonable attorney’s fee to the prevailing party as provided by law. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. (b) Grantee shall not bring any action against Grantor for any injury or change to the Easement Area caused by third parties, or resulting from causes beyond the Grantor’s control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Easement Area or harm to the Easement Area resulting from such action. 8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer, assign, convey, or otherwise to co-hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under NCGS 121-34 et seq., provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Deed. If the Grantee ever ceases to exist or no longer qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Conservation Easement. 9. TRANSFER OF EASEMENT AREA. The Grantor agrees to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which it transfers or divests itself of any interest, including leasehold interest, in all or a portion of the Easement Area. The Grantor shall notify the Grantee in writing at least thirty (30) days before conveying the Easement Area, or any part thereof or interest therein. Failure of Grantor to do so shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 10. AMENDMENT OF EASEMENT. This Conservation Easement may be amended only with the written consent of Grantor and Grantee. Any such amendment shall be consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., or any regulations promulgated pursuant to that law. The Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. PROCEDURE IN THE EVENT OF TERMINATION OF CONSERVATION EASEMENT. If it is determined that conditions on or surrounding the Property have changed so much that it is impossible to fulfill the conservation purposes set forth above, a court with jurisdiction may, at the joint request of both the Grantors and Grantees, terminate this Conservation Easement. 41 Page 12 of 17 If condemnation of a part of the Property or of the entire Property by public authority renders it impossible to fulfill any of these conservation purposes, the Conservation Easement may be terminated through the condemnation proceedings. At the time of the conveyance of the Conservation Easement to the Grantee, this Conservation Easement gives rise to a real property right, immediately vested in the Grantee. If the Conservation Easement is terminated and the Property is sold or taken for public use, then, as required by Sec. 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to thirty-five percent (35 %) of the net proceeds attributable to the sale of the Property (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 Grantor shall not be responsible to share any proceeds awarded. All condemnation related expenses, including reasonable attorney fees, incurred by the Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 13. INTERPRETATION. This Conservation Easement shall be interpreted under the laws of 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 Easement Area in fee simple and have good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages not subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, subject to any easements or encumbrances of record. Provided, however, that the Grantor and Grantee acknowledge that part of the Property is also encumbered by a Conservation Easement held by the State of North Carolina recorded in Book _______, Page _______, of the Orange County Registry, the area of said easement being shown as “Conservation Easement 4.42 Ac” and “Conservation Easement 5.07 Ac” on that Plat recorded in Plat Book _______, Page _______, of the Orange County Registry. 15. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee, 42 Page 13 of 17 respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantor: To the Grantee: Eno River Association Orange County Department of Environment, 4404 Guess Road Agriculture, Parks and Recreation Durham, NC 27712 Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 16. ENVIRONMENTAL CONDITION. The Grantor covenants and represents that it knows of no release or threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws. The Grantor hereby promises to hold harmless and indemnify the Grantee against all litigation, claims, demands, penalties and damages, including reasonable attorneys’ fees, arising from or connected with the release or threatened release by Grantor, its agents, assigns, and guests, of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Law. “Environmental Law” or “Environmental Laws” means any and all Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste, hazardous materials, worker and community right-to-know, hazard communication noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect. “Hazardous Materials” means any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials and any other element, compound, mixture, solution or substance which may pose a present or potential hazard to human health or the environment. 17. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. 18. PARTIES. Every provision of this Conservation Easement that applies to the Grantor or Grantee shall also apply to their respective 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. 43 Page 14 of 17 19. RE-RECORDING. In order to ensure the perpetual enforceability of the Conservation Easement, the Grantee is authorized to re-record this instrument or any other appropriate notice or instrument. 20. MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Easement Area. 21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor to use the Easement Area as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 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 as of the date recorded in the Orange County Registry of Deeds. TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee its successors and assigns, forever. [The remainder of this page is intentionally left blank. Signature page follows.] 44 Page 15 of 17 IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLEY, INC. By: ___________________________ Alanna Howard, President ATTEST: By: ___________________________ Bercedis Peterson, Secretary Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: _______________________ Mark Dorosin., Chair Orange County Board of Commissioners ATTEST: By: _______________________ Donna S. Baker, Clerk to the Board of Commissioners 45 Page 16 of 17 Acknowledgments NORTH CAROLINA COUNTY OF _______________ I, ___________________________ a Notary Public of the County and State aforesaid, certify that Alanna Howard personally came before me this day and acknowledged that she is President of the Board of Directors for the Association for the Preservation of the Eno River Valley, Inc., a corporation existing under the laws of the State of North Carolina, party to this Agreement, and acknowledge this Indenture to be her act and deed and the act and deed of said corporation; that the signature of the President thereto is in her own proper handwriting and the seal affixed is the common and corporate seal of said corporation, and that her act of sealing, executing, acknowledging and delivering said Indenture was duly authorized by a resolution of the Board of Directors of said corporation. . Witness my hand and official stamp or seal this the ____ day of __________, 2018. _______________________________ Notary Public My commission expires: ____________________ NORTH CAROLINA COUNTY OF ORANGE I, ____________________________, a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the ____ day of __________, 2018. __________________________ Notary Public My commission expires: ____________________ 46 Page 17 of 17 EXHIBIT A BEING ALL OF TRACTS “B-S” and “C-REV” according to the plat and survey thereof entitled, “Conservation Easement Property Surveyed for State of North Carolina, Clean Water Management Trust Fund & Eno River Association, Grant #2017-024” recorded in Plat Book _______, Page _______, Orange County Registry, to which plat reference is hereby made for a more particular description of same, and being the same real property conveyed to the Association for the Preservation of the Eno River Valley, Inc. by deed recorded in Book 6404, Page 303, Orange County Registry. 47