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HomeMy WebLinkAboutAgenda 09-03-19 Item 8-l - Resolution of Approval – Conservation Easement on Triangle Land Conservancy-McQueen Property 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 3, 2019 Action Agenda Item No. 8-1 SUBJECT: Resolution of Approval — Conservation Easement on Triangle Land Conservancy-McQueen Property DEPARTMENT: Environment, Agriculture, Parks and Recreation (DEAPR) ATTACHMENT(S): INFORMATION CONTACT: 1. Resolution of Approval David Stancil, 245-2510 2. Location Map Christian Hirni, 245-2514 3. Site Map 4. Draft Conservation Easement PURPOSE: To consider a resolution to approve the acceptance by Orange County of a conservation easement for Triangle Land Conservancy's McQueen Property. 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 2,647 acres of significant natural areas and prime farmland with permanent conservation easements, leveraging over $4 million in outside funding and grants toward these easements. Triangle Land Conservancy (TLC) contacted the County asking if the County would hold a permanent conservation easement on the approximately 40-acre McQueen Property. TLC obtained a mini grant from the Clean Water Management Trust Fund to cover the transaction fees associated with the property donation to TLC. A condition of the grant is for an outside organization hold a conservation easement on the property. The property is entirely forested with mature mixed hardwoods. It is bound on the north by approximately 2,300 stream feet of an unnamed tributary of Phil's Creek located in the University Lake Protected Watershed. The property is approximately one mile upstream of TLC's Shenandoah Conservation easement and two and half miles upstream of University Lake (owned by OWASA). Conservation of this property will protect the drinking water of southern Orange County and protect the wildlife habitat of a multitude of species. TLC plans to hold this property in perpetuity to protect water quality and to provide wildlife habitat. 2 The planned conservation easement would be held by Orange County. All development rights will be extinguished through the conservation easement. The planned conservation easement area is depicted on the attached site map. A draft deed of conservation easement is also provided. FINANCIAL IMPACT: TLC would donate the conservation easement to Orange County and TLC would cover all transaction fees. There would be no cost to the County. The McQueen property is enrolled in the Present Use Value taxation program, so the conservation easement does not lessen the amount of property taxes paid to the County. The decrease in the property's market value caused by the conservation easement (and extinguishing of its development rights) will not lower the property value to a level that is less than the present farm use value. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal impact associated with this item. ENVIRONMENTAL IMPACT: The following Orange County Environmental Responsibility Goal impacts are applicable to this item: • RESULTANT IMPACT ON NATURAL RESOURCES AND AIR QUALITY (Assess and where possible mitigate adverse impacts created to the natural resources of the site and adjoining area. Minimize production of greenhouse gases.) The conservation of this land by Triangle Land Conservancy and the conservation easement held by Orange County will protect an area of mixed mature hardwoods, which provide important wildlife habitat, and will protect 2,300 linear feet of a stream that feeds into University Lake, a water supply for OWASA. RECOMMENDATION(S): The Manager recommends the Board adopt and authorize the Chair to sign the resolution approving the acceptance by Orange County of the conservation easement, and authorize the Chair and the Clerk to sign the conservation easement agreement, subject to final review by staff and County Attorney, with a closing and recordation of the document expected to occur on or about December 31, 2019. RES-2019-054 Attachment 1 3 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Conservation Easement between Orange County and Triangle Land Conservancy 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 Triangle Land Conservancy — McQueen property includes approximately 40 acres in the University Lake protected watershed that includes 2,300 linear feet of a stream that drain to Phil's Creek and to University Lake—a drinking water supply reservoir for the towns of Chapel Hill and Carrboro; and WHEREAS, Triangle Land Conservancy, the owners of the McQueen 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 40 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 Triangle Land Conservancy; 2) approve the execution of this conservation easement agreement with Triangle Land Conservancy, 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 December 31, 2019; 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 Triangle Land Conservancy for their civic-minded granting of this conservation easement through the Lands Legacy Program. This the 3rd day of September, 2019. Penny Rich, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board CD Lon s � J n s L U mWatery Fork o _ c - io �c? Lb r m i Carrboro. I Ah��s a � e Ildcat Bran I ' /sC J G� e ------------ ----- McQueen Property Vicinity Map - McQueen Property 0 County Parks and Open Space N iT 52 Conservation Easements Held By County 0 Non County Parks And Open Space o Conservation Easements Held By Others Major Streams [ Reserviors Streets Date: 10/2/2018 1 inch = 5,280 feet r � 1 1 W1� fr ,r f. I t 46 r� McQueen Property 2017 Aerial Image Aerial Map McQueen Property Lakes And Ponds �o Building Footprints Streets DEAPR Parcels Streams 1 inch = 448 feet Date: 10/2/2018 6 CONSERVATION EASEMENT McQueen Property Prepared by: Orange County and Clean Water Management Trust Fund After Recording Return to: Christian Himi, DEAPR Box 8181, Hillsborough,NC 27278 NORTH CAROLINA ORANGE COUNTY Tax Parcel No. 9758376969 CWMTF No. THIS DEED OF CONSERVATION EASEMENT ("Conservation Easement") is made, given, granted, and executed on this the day of MONTH YEAR by and between TRIANGLE LAND CONSERVANCY, a nonprofit corporation organized and existing under the laws of the State of North Carolina ("Grantor"), its address being: 514 Duke Street, Durham, NC 27701, and ORANGE COUNTY, a local government of the State of North Carolina ("Grantee"), its address being: P.O. Box 8181, Hillsborough, NC 27278. Grantor and Grantee may hereinafter be referred to collectively as the "Parties." RECITALS & CONSERVATION PURPOSES A. Grantor owns in fee simple absolute certain real property lying and being in Bingham Township, Orange County, North Carolina, which consists of [approximately 40] acres, and which is more particularly described in "Exhibit A" which is attached hereto and incorporated herein by reference as if fully set forth herein (the "Property"). B. Grantor is a non-profit organization whose primary purpose is the conservation, preservation, or restoration of North Carolina's cultural, environmental, or natural resources. CWMTF CE Template,entire property,Nov.2018 1 Combined 7 C. The State has enacted the Conservation and Historic Preservation Agreements Act, Chapter 121, Article 4 of the North Carolina General Statutes ("N.C.G.S."), which provides for the enforceability of restrictions, easements, covenants, and conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition . . . ." D. The Clean Water Management Trust Fund is authorized by N.C.G.S. Chapter 143B, Article 2, Part 41 to acquire land and interests in land on behalf of the State: • for riparian buffers for the purposes of providing environmental protection for surface waters and urban drinking water supplies and establishing a network of riparian greenways for environmental, educational, and recreational uses, • for the purpose of protecting and conserving surface waters and enhancing drinking water supplies, including the development of water supply reservoirs, • to provide buffers around military bases to protect the military mission, • that represent the ecological diversity of North Carolina, including natural features such as riverine, montane, coastal, and geologic systems and other natural areas to ensure their preservation and conservation for recreational, scientific, educational, cultural, and aesthetic purposes, and • that contribute to the development of a balanced State program of historic properties. E. Grantor and Grantee have agreed that the entire Property shall be subject to this Conservation Easement. As aforementioned, the Property is more particularly described in Exhibit A. The Property has the following conservation values and serves the following conservation purposes: • to preserve, enhance, restore, and maintain the natural features and resources of the riparian buffer, to control runoff of sediment, and to improve and maintain the water quality, of portions of a tributary of Phil's Creek, which is located approximately 2 miles upstream of University Lake, • to protect and preserve the ecological diversity including natural features such as an intact upland hardwood community for recreational, scientific, educational, cultural, and aesthetic purposes, Moreover, Grantor and Grantee recognize that the Property has other conservation values and purposes, including fish and wildlife conservation, open space values, and scenic values (hereinafter, collectively with the conservation values described in this Section E of the Recitals and the conservation purposes of this Conservation Easement, the "Conservation Values"). F. Grantor has received a grant from the Clean Water Management Trust Fund CWMTF CE Template,entire property,Nov.2018 2 Combined 8 ("Fund") in accordance with Grant Contract No. 2018D-003 between Grantor and the Fund on March 27, 2019 (the "Grant Contract"). In the Grant Contract, Grantor agreed to enter into this Conservation Easement. The terms and conditions of the Grant Contract are incorporated herein by reference as if fully set forth herein. The Grant Contract is on file and available for public inspection in the offices of the Grantor, the Grantee and the Fund. The Grant Contract and this Conservation Easement are collectively referred to herein as the "Project." G. Grantor and Grantee acknowledge that the Property is currently unencumbered except as permitted in Article V of this Conservation Easement. The Property's characteristics, its current use, and its state of improvement are described in a Baseline Documentation Report (the "BDR"), which is incorporated into the Grant Contract and is on file and available for public inspection in the offices of Grantor, Grantee and the Fund. The Parties acknowledge that the BDR is the appropriate basis for monitoring compliance with the objectives of preserving the Conservation Values and that it is not intended to preclude the use of other evidence (e.g. surveys, appraisals) to establish the condition of the Property at the time of the execution of this Conservation Easement if there is a controversy over such condition. NOW, THEREFORE, in consideration of the premises and the mutual benefits recited herein, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Grantor hereby unconditionally and irrevocably gives, grants, and conveys forever and in perpetuity to the Grantee, its successors and assigns, and the Grantee hereby accepts, this Conservation Easement of the nature and character and to the extent hereinafter set forth in, on, over, through, and across the Property, together with the right and easement to preserve and protect the Conservation Values. The purpose of this Conservation Easement is to protect and preserve the Conservation Values as outlined above in Section E of the Recitals including the Conservations Purpose(s) and it shall be so held, maintained, and used therefore. Grantor hereby conveys to Grantee all development rights that are now or hereafter allocated to, or are implied or inherent in, the Property, and the Parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any other property. It is the further purpose of this Conservation Easement to prevent any use of the Property that will impair or interfere with the preservation of said Conservation Values. Grantor intends that this Conservation Easement will restrict the use of the Property to such activities as are consistent with the Conservation Values. [INSERT ANY RECORDED EASEMENTS THE PARTIES ARE RELYING ON FOI ACCESS INTO ITEM 2 IMMEDIATELY BELOW.] FURTHER, for the purpose of providing uninterrupted access to the Property, Grantor grants and conveys unto Grantee, its successors and assigns, a perpetual right of ingress, egress, and regress to and from the Property (1) in that certain foot wide right-of-way shown on the Plat identified in Exhibit A as providing access to the Property from , (2) in any other right-of-way appurtenant to the Property, and(3) across any other lands owned by Grantor. CWMTF CE Template,entire property,Nov.2018 3 Combined 9 ARTICLE I. DURATION OF EASEMENT This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land, and is enforceable by Grantee against Grantor, its representatives, successors, assigns, lessees, agents, and licensees. ARTICLE II. RIGHTS RESERVED TO GRANTOR Grantor reserves certain rights accruing from the fee simple ownership of the Property, including the right to engage in or permit others to engage in the uses of the Property that are not inconsistent with this Conservation Easement or the Conservation Values. All rights reserved by the Grantor, are reserved for Grantor and its successors and assigns, and are considered to be consistent with this Conservation Easement and the Conservation Values. Grantor shall continue to own and may use the Property in any lawful manner that is consistent with this Conservation Easement and the Conservation Values. The Parties acknowledge and agree that they have no right to agree to any activity that would result in the termination of this Conservation Easement. The Property shall be restricted from any development or usage that would impair or interfere with the Conservation Values including the purposes of this Conservation Easement. The following uses are reserved as indicated: A. Passive Recreational Use. Grantor reserves the right to engage in and to permit others to engage in passive recreational uses of the Property requiring minimal surface alteration of the land, so long as related alterations, construction, improvements, maintenance, activities, and uses pose no threat to the Conservation Values. By way of illustration, such passive recreational uses may include non-commercial hunting, non-commercial fishing, hiking, walking, scientific study, animal/plant observation, nature and environmental education, historic tours, photography, and any other purposes consistent with these accepted uses and the maintenance of the Conservation Values, subject to all applicable federal, state, and local laws and regulations. All improvements shall be subject to the terms and conditions set forth herein and by the Grant Contract. Usage of motorized vehicles on the Property is prohibited, except as they are used on allowed roads, trails, or paths, exclusively for management, maintenance, or stewardship purposes. B. Public Use and Access. Grantor reserves the right to allow public access and use of the Property for the purpose of creating open space with associated passive recreational activities as provided for herein. C. Existing Roads and Trails. Grantor reserves the right to maintain existing unpaved roads and trails on the Property. These roads and trails shall not be paved or covered with asphalt, but gravel and permanent vegetation may be used to stabilize them. Associated ditches, culverts, and bridges may be maintained and replaced as necessary as maintenance of the road or trail. All necessary care shall be taken to maintain existing roads and trails in a manner so as not to impair any Conservation Values. Existing roads shall not be realigned without the prior written consent of the Fund. CWMTF CE Template,entire property,Nov.2018 4 Combined 10 D. Greenway Trails. Subject to the Fund's prior written approval, Grantor reserves the right to construct paved greenway trails on the Property for the purpose of recreation. All paved greenway trails must be located a minimum distance of 30 feet from the top of bank of surface waters, unless such locations are physically impracticable, and must be located so as not to impair the Conservation Values. When required by the terrain, paved greenway trails may include boardwalks, ramps, and handrails to the extent necessary. The Grantor may also construct and maintain park benches, litter receptacles, and trail/feature signs along paved greenway trails. All necessary care shall be taken to construct and maintain such features and paved greenway trails in a manner so as not to impair any Conservation Values either during or after construction. The Fund reserves the right to close any paved greenway trails that are considered detrimental to the Conservation Values. All realignments of greenway trails shall be treated the same as new greenway trails and require the prior written approval of the Fund. E. Natural Surface Trails. Grantor reserves the right to construct natural surface trails on the Property for the purpose of hiking and non-motorized bicycling. All natural surface trails must be located a minimum distance of 30 feet from the top of the bank of all surface water, unless such locations are physically impracticable, and must be located so as not to impair the Conservation Values. All trail construction involving soil disturbance must follow best practices for sustainable trail design and construction and must have prior written approval by the Fund. Private trails for personal use by the landowner and a small number of guests that will not have more than a de minimis impact on the land, water quality, or environment are excepted from the requirements of the immediately preceding sentence. When required by the terrain, natural surface trails may include boardwalks, ramps, and handrails to the extent necessary. The Grantor may also construct and maintain park benches, litter receptacles, and trail/feature signs along natural surface trails. All necessary care shall be taken to construct and maintain such features and natural surface trails in a manner so as not to impair any Conservation Values either during or after construction. The Fund reserves the right to close any natural surface trails that are considered detrimental to conservation values. All realignments of natural surface trails are subject to the requirements of this Section. H. Vegetation Management. Grantor reserves the right to manage vegetation for the following activities: (1)boundary marking, fencing, and signage, (2) selective cutting, prescribed burning, and the application of herbicides and pesticides for fire containment, insect and disease control, restoration of hydrology, wetlands enhancement, and/or control of invasive exotic plants, and (3) removal of damaged trees and debris caused by storms, fire, or other casualty, which pose a threat to life or property. J. Native Community_ Restoration, Management, and Maintenance. Grantor reserves the right to perform all activities necessary to restore, manage, and/or maintain the native plant and animal communities on the Property. All necessary care shall be taken to protect all Conservation Values, and restoration, management, and maintenance activities shall be carried out in a manner so as not to impair any Conservation Values either during or after the activities. K. Hunting and Fishing. Grantor reserves the right to hunt and fish in accordance CWMTF CE Template,entire property,Nov.2018 5 Combined 11 with all federal, state, and local rules and regulations. ARTICLE III. PROHIBITED AND RESTRICTED ACTIVITIES Any activity on, or use of, the Property that is inconsistent with this Conservation Easement or the Conservation Values is prohibited. The Property shall be maintained in its natural, scenic, wooded, and open condition and restricted from any development or use that would impair or interfere with this Conservation Easement or the Conservation Values. Without limiting the generality of the immediately foregoing Paragraph, the following activities and uses are expressly prohibited or restricted on the Property as stated, except to the extent of rights specifically reserved to Grantor in Article II. When an activity or use is prohibited or restricted in, within, on, or of the Property, the activity or use is prohibited or restricted in, on, over,under, through, above, and across the Property. A. Industrial and Commercial Use. Industrial and commercial activities are prohibited on the Property. B. Agricultural, Grazing and Horticultural Use. Agriculture, grazing, horticultural and animal husbandry operations and any rights of passage for such purposes are prohibited on the Property. C. Disturbance of Natural Features, Plants, and Animals. There shall be no cutting or removal of trees and no disturbance of other natural features on the Property except as permitted in Article II. D. Construction of Buildings. There shall be no constructing or placing of any building, mobile home, asphalt or concrete pavement, billboard or other advertising display, antenna, utility pole, tower, conduit, line, pier, landing, dock, or any other temporary or permanent structure or facility on the Property. E. Signs. Signs are not permitted on the Property except for the following signs: no trespassing signs, local, state, or federal traffic or similar information signs, for sale or lease signs, signs identifying the Conservation Values of the Easement, signs identifying the Grantor as owner of the Property, signs identifying the Grantee as holder of the Conservation Easement, educational signs, and interpretative signs. F. Mineral Use, Excavation, Dredging. There shall be no filling, excavation, dredging, mining, or drilling on the Property. There shall be no removal of topsoil, sand, gravel, rock, peat, minerals, hydrocarbons, or other materials from the Property. There shall be no change in the topography of the Property in any manner except as necessary to combat erosion or incidental to conservation management activities permitted on the Property. G. Wetlands and Water Quality. There shall be no pollution or alteration of surface waters on the Property. There shall be no construction or other activities that would be detrimental to water quality or that would alter the natural water levels, drainage, sedimentation, CWMTF CE Template,entire property,Nov.2018 6 Combined 12 or water flow in, on, or over the Property or into any surface waters. There shall be no construction or other activities that would cause soil degradation or erosion. There shall be no diking, dredging, alteration, draining, filling, or removal of wetlands, except as a necessary part of restoring natural hydrology, enhancing wetlands, or improving water quality, as permitted by state and any other appropriate authorities, and then only after written approval is granted by the Fund for such activities. H. Dumper. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances, machinery, or other materials on the Property is prohibited. I. Conveyance and Subdivision. The Property shall not be divided, subdivided, or partitioned. Interests in the Property, including, but not limited to the fee simple interest, shall not be divided, subdivided, or partitioned. Without limiting the foregoing, the Property shall not be conveyed except in its current configuration as a single parcel of property. J. Open Space and Development Rights. The Property shall not be used to satisfy open space or density requirements of any cluster or other development scheme or plan. The development rights encumbered by this Conservation Easement shall not be transferred to any other land pursuant to a transfer of development rights scheme, a cluster development arrangement, or otherwise. K. Mitigation._ There shall be no use of the Property or any portion thereof to satisfy compensatory mitigation requirements under 33 USC Section 1344, NCGS §143-214.11, or otherwise, or any successor or replacement provision of the foregoing. ARTICLE IV. ENFORCEMENT AND REMEDIES A. Enforcement and Remedies. To accomplish the purpose(s) of this Conservation Easement, Grantee is allowed to prevent any activity on or use of the Property that is inconsistent with the purpose(s) of this Conservation Easement, and to require the prompt restoration to the condition required by this Conservation Easement of such areas or features of the Property that may have been damaged by such activity or use. Upon any breach of the terms of this Conservation Easement by Grantor that comes to the attention of the Grantee, the Grantee shall, except as provided below, notify the Grantor in writing of such breach. The Grantor shall have ninety(90) days after receipt of such notice to correct the conditions constituting such breach. If the breach remains uncured after ninety (90) days, the Grantee may enforce this Conservation Easement by appropriate legal proceedings for damages, injunctive relief, and any other legal or equitable remedy. The Grantee shall also have the power and authority, consistent with its statutory authority: (a) to prevent any impairment of the Property by acts which may be unlawful or in violation of this Conservation Easement; (b) to otherwise preserve or protect its interest in the Property; or (c) to seek damages from any appropriate person or entity. Notwithstanding the foregoing, the Grantee reserves the immediate right, without notice, to obtain a temporary restraining order, injunction, or other appropriate relief if the breach of the term of this Conservation Easement is or would irreversibly or otherwise materially impair the benefits to be derived from this Conservation Easement. The Grantor and Grantee acknowledge that under CWMTF CE Template,entire property,Nov.2018 7 Combined 13 such circumstances damage to the Grantee would be irreparable and remedies at law will be inadequate. The rights and remedies of the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights and remedies available to Grantee in connection with this Conservation Easement, including, without limitation, those set forth in the Grant Contract under which this Conservation Easement was obtained. B. Access for Inspection and Right of EntrX. Grantee shall have the right, by and through their agents and employees, to enter the Property to inspect the Property for compliance with this Conservation Easement at all reasonable times and with prior notice and, if necessary, cross other lands retained by the Grantor for the purposes of (1) inspecting the Property to determine if the Grantor is complying with the covenants and purpose(s) of this Conservation Easement; (2) enforcing the terms of this Conservation Easement; (3) taking any and all actions with respect to the Property as may be necessary or appropriate with or without order of the Court, to remedy or abate violations hereof; and (4) making scientific and educational observations and studies and taking samples in such a manner as will not disturb the quiet enjoyment of the Property by the Grantor. C. Termination and Proceeds of Property Rights Created. This Conservation Easement gives rise to a property right that is immediately vested in the Grantee at the time of recordation, with a fair market value that is equal to the proportionate value that the Conservation Easement bears to the value of the Property as a whole on the date of the recording of this Conservation Easement. This proportionate value shall remain constant. 1. Eminent Domain. Whenever all or part of the Property is taken, or threatened to be taken, by exercise of eminent domain by public, corporate, or other authority, or by negotiated sale in lieu of condemnation, so as to abrogate any restriction imposed by this Conservation Easement, the Grantor shall immediately give notice to Grantee and the Fund, and shall take all appropriate actions related to such taking or negotiated sale in coordination with and with the consent of the Grantee and the Fund, to recover the full value of the taking and all incidental or direct damages resulting from the taking. The Grantee, its successors and assigns, shall be entitled to a portion of the proceeds of such sale, exchange, involuntary conversion of the Property, or any damage award with respect to any judicial proceeding according to Grantee's proportional interest in the value of the Property as determined under Treasury Regulations §1.170A-14(g)(6)(ii) or any successor regulation. "Proceeds of Sale" shall mean the cash value of all money and property paid, transferred, or contributed in consideration for, or as otherwise required as a condition to the sale, exchange or involuntary conversion of the Property, or any damages otherwise awarded as a result of judicial proceeding, minus the Grantor's expenses from such transaction or proceeding. As allowed by NCGS §146-30(a), Grantee shall use its share of the Proceeds of Sale in a manner consistent with the purpose(s) of the Conservation Easement as set forth herein. Notwithstanding the foregoing, all Proceeds of Sale shall be distributed among the Parties according to each Party's respective contribution to the purchase price of the Property and this Conservation Easement. For the purposes of determining any distribution of proceeds pursuant to this section, Grantor's proportionate contribution to the purchase price shall be deemed to be 100%, and Grantee's proportionate contribution to the purchase price CWMTF CE Template,entire property,Nov.2018 8 Combined 14 shall be deemed to be 0%. 2. Changed Conditions. If a subsequent, unexpected change in conditions surrounding the Property makes impossible or impractical the continued use of the Property for the purpose(s) of this Conservation Easement as set forth herein, and the Conservation Easement is extinguished by judicial proceeding, the Grantee, its successor and assigns, shall be entitled to a portion of the proceeds of any sale, exchange, involuntary conversion of the Property, or any damage award with respect to any judicial proceeding according to Grantee's proportional interest in the value of the Property as determined under Treasury Regulations §1.170A-14(g)(6)(ii) or any successor regulation. "Proceeds of Sale" shall mean the cash value of all money and property paid, transferred, or contributed in consideration for or as otherwise required as a condition to the sale, exchange or involuntary conversion of the Property, or any damages otherwise awarded as a result of judicial proceeding, minus the Grantor's expenses from such transaction or proceeding. As allowed by NCGS §146-30(a), Grantee shall use its share of the Proceeds of Sale in a manner consistent with the purpose(s) of the Conservation Easement as set forth herein. Notwithstanding the foregoing, all Proceeds of Sale shall be distributed among the Parties according to each Party's respective contribution to the purchase price of the Property and this Conservation Easement. For the purposes of determining any distribution of proceeds pursuant to this section, Grantor's proportionate contribution to the purchase price shall be deemed to be 100%, and Grantee's proportionate contribution to the purchase price shall be deemed to be 0%. D. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury or change in the Property resulting from the acts of third parties not authorized by Grantor, or from causes beyond the Grantor's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken in good faith by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life, property damage or harm to the Property resulting from such causes. E. Costs of Enforcement. Any costs incurred by Grantee or the State of North Carolina in enforcing the terms of this Conservation Easement against Grantor, including, without limitation, any costs of restoration necessitated by Grantor's acts or omissions in violation of the terms of this Conservation Easement, shall be borne by Grantor. F. No Waiver and Third Party Enforcement. Enforcement of this Conservation Easement shall be at the discretion of the Grantee and any forbearance by Grantee to exercise its rights hereunder in the event of any breach of any term set forth herein shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or of any other term of this Conservation Easement or of Grantee's rights. No delay or omission by Grantee in exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. In the event Grantee determines there is a breach of this Conservation Easement, Grantor fails to cure said breach as provided herein, and Grantee thereafter exercises its discretion and forbears taking action to enforce this Conservation Easement the State of North Carolina shall have a third party right of enforcement and may, upon a determination that the CWMTF CE Template,entire property,Nov.2018 9 Combined 15 conservation values of the Property have been impaired by Grantor's breach, assume the enforcement rights of Grantee pursuant to Sections A, B, and E of this Article and take appropriate action to enforce the terms of this Conservation Easement. ARTICLE V. TITLE The Grantor covenants and represents and warrants (i) that the Grantor is the sole owner and is seized of the Property in fee simple and has good right to grant and convey the aforesaid Conservation Easement; (ii) that there is legal access to the Property, (iii) that the Property is free and clear of any and all encumbrances, except those permitted exceptions outlined below, none of which would nullify, impair or limit in any way the terms or effect of this Conservation Easement; (iv) that Grantor shall defend its title against the claims of all persons whomsoever; and(v)that the Grantee, its successors and assigns, shall have the right to monitor and defend the terms of the aforesaid Conservation Easement. The following are permitted exceptions to the above covenants, representations, and warranties: This Conservation Easement is conveyed as an absolute gift to the Grantee subject to an executory interest in the State of North Carolina. Such executory interest shall accrue in the State of North Carolina only in the event the Grantor or Grantee attempts to terminate, transfer, or otherwise divest itself of any rights, title, or interest in and to the Conservation Easement, except as specifically authorized herein, without the prior written consent of the State, which consent shall not be unreasonably withheld. Upon accrual of the executory interest all rights, title, and interest in the Conservation Easement of the Grantor or Grantee, as the case may be, shall automatically vest in the State of North Carolina. ARTICLE VI. MISCELLANEOUS A. Stewardship of the Conservation Easement. Pursuant to the terms of the Grant Contract and any contract for stewardship of the Property entered into pursuant to the Grant Contract, Orange County, its successors or assigns, will monitor and observe the Property in perpetuity to assure compliance with the purposes and provisions of this Conservation Easement and the provisions of the Grant Contract, and that it will report on the condition of the Property, or provide for such reporting to the State and the Fund no less frequently than once a year; and further will report immediately to the State and the Fund any observed and/or known violations of this Conservation Easement or the Grant Contract. The Parties acknowledge that the associated stewardship monies awarded under the Grant Contract are administered pursuant to NCGS §14313-135.236 which establishes the North Carolina Conservation Easement Endowment Fund, or any successor law, and the internal policies and procedures of the Fund, and that Orange County's obligation to monitor the Property at any given time is contingent on the availability of said stewardship funds and payment of same to Orange County and if such funds are or become unavailable Orange County has no further obligation to monitor the Property. Further, the Parties acknowledge that this obligation to monitor the Property is assignable provided such assignment is made with the prior written approval of the Fund and evidenced by a written instrument signed by the Parties thereto and recorded in the Office of the Register of Deeds of Orange County. Provided further, that any such assignment of Orange County's obligation to monitor the Property shall include a right of entry onto the Property for the assignee of said monitoring obligation, and shall require the monitoring to be carried out in accordance CWMTF CE Template,entire property,Nov.2018 10 Combined 16 with and subject to NCGS §143B-135.236 or any successor law, and the Fund's internal stewardship policies and procedures. The Parties specifically acknowledge that neither Orange County's obligation to monitor the Property, nor its assignment of said obligation, shall have any effect on the rights and obligations of the Grantee of this Conservation Easement. Further, the Parties covenant that the obligation to provide monitoring of the Property will survive any transfer of Grantor's fee interest in the Property. B. Subsequent Transfers of the Fee. Grantor agrees for itself, its successors and assigns, that in the event it intends to transfer the Property or any interest in the Property, to notify the Grantee and the Fund in writing of the names and addresses of any party to whom the Property is to be transferred, the nature of the interest to be transferred, and the terms and conditions of the intended transfer, at least sixty (60) days before the transfer is intended to be consummated. Grantor, for itself, its successors and assigns, further agrees to make specific reference to this Conservation Easement in a separate paragraph of any subsequent lease, deed, or other legal instrument by which any interest in the Property is conveyed. The Property owner shall not convey the Property or any interest therein, and shall not incur, assume, or suffer to exist any lien, upon or with respect to the Property, without disclosing to the prospective buyer the Conservation Easement, the obligations of the Property owner and limitations on use of the Property. Nothing in this Section abrogates or limits Section I of Article III hereof. C. Subsequent Transfers of the Conservation Easement. The Parties hereto recognize and agree that the benefits of this Conservation Easement are in gross and assignable with any such assignee having all the rights and remedies of Grantee hereunder. The Parties hereby covenant and agree, that in the event this Conservation Easement is transferred or assigned, the transferee or assignee of the Conservation Easement will be a qualified organization as that term is defined in Section 170(h)(3) of the Internal Revenue Code of 1986, as amended, or any successor section, and the regulations promulgated thereunder (the "Code") that is organized or operated primarily for one of the conservation purposes specified in Section 170(h)(4)(A) of the Code, a qualified holder as that term is defined in the Act or any successor statute, and a qualified grant recipient pursuant to N.C.G.S. Chapter 14313, Article 2, Part 41. The Parties further covenant and agree that the terms of the transfer or the assignment will be such that the transferee or assignee will be required to continue to carry out in perpetuity the purpose(s) of the Conservation Easement that the contribution was originally intended to advance as set forth herein, but acknowledge specifically that any transfer or assignment of the Conservation Easement shall have no effect on Orange County's obligation to provide stewardship of the Conservation Easement as set forth in this Article VI. D. Existing 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 Grantee, or in any way to affect any existing obligation to the Grantor as owner of the Property. Among other things, this shall apply to: 1. Taxes. The Grantor shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If the Grantee is ever required to pay any taxes or assessments on its interest in the Property, the Grantor will reimburse the Grantee for the same. CWMTF CE Template,entire property,Nov.2018 11 Combined 17 2. Upkeep and Maintenance. The Grantor shall continue to be solely responsible for the upkeep and maintenance of the Property to the extent it may be required by law. The Grantee shall have no obligation for the upkeep or maintenance of the Property. 3. Liability and Indemnification. If the Grantee is ever required by a court to pay damages resulting from personal injury or property damage that occurs on the Property, the Grantor shall indemnify and reimburse the Grantee for these payments, as well as reasonable attorneys' fees and other expenses of defending itself, unless the Grantee has committed a deliberate act that is determined to be the sole cause of the injury or damage. E. Conservation Purpose. Grantor and Grantee, each for itself, and its respective successors and assigns, agree that this Conservation Easement shall be held exclusively for conservation purposes set forth by the Grant Contract, this Conservation Easement and as specified in Section 170(h)(4)(A) of the Code. Further, this Conservation Easement shall be construed to promote the purposes of the Act and such purposes of this Conservation Easement as are defined in Section 170(h)(4)(A) of the Code. F. Recordinfz. Grantee shall record this instrument and any amendment hereto in timely fashion in the official records of Orange County, North Carolina, and may re-record it at any time as may be required to preserve Grantee's rights. G. Notices. Any notices shall be sent by registered or certified mail, return receipt requested, to the parties at their addresses shown below: If to Grantee: If to Owner: Orange County Triangle Land Conservancy P.O. Box 8181 514 S. Duke Street Hillsborough,NC 27278 Durham,NC 27701 H. Amendments. Grantor and Grantee, or their successors in interest in the Property, are free to jointly amend this Conservation Easement to meet changing conditions, provided that no amendment will be allowed that is inconsistent with the purpose(s) of this Conservation Easement or affects the perpetual duration of this Conservation Easement. Such amendment(s) require the prior written consent of both Grantor and Grantee and shall be effective upon recording in the public records of Orange County,North Carolina. 1. Environmental Condition of the Property. The Grantor warrants, represents and covenants to the Grantee that to the best of its knowledge after appropriate inquiry and investigation: (a) the Property described herein is and at all times hereafter will continue to be in full compliance with all federal, state and local environmental laws and regulations; (b) as of the date hereof there are no hazardous materials, substances, wastes, or environmentally regulated substances (including, without limitation, any materials containing asbestos) located on, in or CWMTF CE Template,entire property,Nov.2018 12 Combined 18 under the Property or used in connection therewith; (c) that there is no environmental condition existing on the Property that may prohibit or impede use of the Property for the purpose(s) set forth herein; and(d)the Grantor will not allow such uses or conditions. J. Indemnity. The Grantor agrees to the fullest extent permitted by law, to protect, indemnify and hold harmless Grantee from and against all claims, actions, liabilities, damages, fines, penalties, costs, and expenses suffered as a direct or indirect result of any violation of any federal, state, or local environmental or land use law or regulation or of the use or presence of hazardous substance, hazardous waste, or other regulated material in, on or under the Property. K. Entire Agreement. The Recitals set forth above and the exhibits, if any, attached hereto are incorporated herein by reference. This instrument, including the Grant Contract incorporated by reference herein, sets forth the entire agreement of the Parties with respect to the Project and supersedes all prior discussions, negotiations, understandings, and agreements relating to the Project. To the extent that this Conservation Easement is in conflict with the Grant Contract, the terms of the Conservation Easement shall control. L. Interpretation. This Conservation Easement shall be construed and interpreted under the laws of the State and the United States, and any ambiguities herein shall be resolved so as to give maximum effect to the conservation purposes sought to be protected herein. The normal rule of construction of ambiguities against the drafting party shall not apply in the interpretation of this Conservation Easement. Further, this Conservation Easement shall be construed to promote the purposes of the Act, which authorizes the creation of conservation agreements for purposes including those set forth herein, and such conservation purposes as are define in Section 170(h) (4) (A) of the Code. If any provision of this Conservation Easement 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. M. Parties. Every provision of this Conservation Easement that applies to the Grantor or to the Grantee or to the Fund shall likewise apply to their respective executors, administrators, successors, and assigns. N. No Extinguishment through Merger. The Parties agree that the doctrine of extinguishment by merger shall not apply to this Conservation Easement because of the public interest in its enforcement. The Parties agree that this Conservation Easement and its terms shall survive any coming together of the ownership of the fee interest in the Property and the Conservation Easement interest, and that this Conservation Easement shall not be merged into the fee interest. Further, the Parties agree that if Grantee, or any successor in interest to Grantee, acquires title to any fee interest in the Property subject to this Conservation Easement, (i) said owner shall observe and be bound by the obligations and the restrictions imposed upon the Property by this Conservation Easement, and (ii) this Conservation Easement shall not be extinguished through the doctrine of merger in any way in view of the public interest in its enforcement. O. Subsequent Liens. No provisions of this Conservation Easement shall be CWMTF CE Template,entire property,Nov.2018 13 Combined 19 construed as impairing the ability of Grantor to use this Property for collateral for borrowing purposes, provided that any mortgage or lien arising there from shall be subordinated to this Conservation Easement. P. Gender. The designations Grantor, Grantee, State, and Fund, as used herein shall include the Parties and their administrators, successors, and assigns, and shall include the singular, plural, masculine, feminine, or neuter as the context may require. Q. Headings. The headings of the various sections of this Conservation Easement have been inserted for convenience only and shall not modify, define, limit, or expand the express provisions of this Conservation Easement. TO HAVE AND TO HOLD unto the Grantee, its successors and assigns, forever. The covenants agreed to and the terms, conditions, restrictions, and purposes imposed as aforesaid shall be binding upon Grantor and Grantor's representatives, successors and assigns, and shall continue as a servitude running in perpetuity with the Property. [See next page for signatures and notary acknowledgement] CWMTF CE Template,entire property,Nov.2018 14 Combined 20 IN WITNESS WHEREOF,the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: TRIANGLE LAND CONSERVANCY By: Mavis Gragg, Chair of the Board of Directors Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Penny Rich, Chair of the Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners Acknowledgments NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public for said County and State do hereby certify that personally appeared before me and acknowledged the due execution of the foregoing instrument. Witness my hand and official stamp or seal this the day of 32019. Notary Public My commission expires: CWMTF CE Template,entire property,Nov.2018 15 Combined 21 NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of Orange County,North Carolina do hereby certify that Donna S. Baker personally appeared 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 Orange County,North Carolina the foregoing instrument was signed in its name by the Chair of the Orange County 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 , 2019. Notary Public My commission expires: CWMTF CE Template,entire property,Nov.2018 16 Combined 22 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY PROPERTY OF TRIANGLE LAND CONSERVANCY BINGHAM TOWNSHIP ORANGE COUNTY, NORTH CAROLINA CWMTF CE Template,entire property,Nov.2018 17 Combined