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HomeMy WebLinkAboutAgenda - 04-07-20; 8-d - Resolution of Approval – Trail Easement 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: April 7, 2020 Action Agenda Item No. 8-d SUBJECT: Resolution of Approval — Trail Easement 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. Easement Map 4. Trail Easement PURPOSE: To consider a resolution to approve the acceptance by Orange County of a trail easement granted by Christina Deprez for the purpose of connecting the Mountains to Sea Trail to NC 54 / Mebane-Oaks Road. BACKGROUND: On March 19, 2019 the Board of Commissioners approved the purchase of land from Eric Knight for a trailhead for the future Mountains to Sea Trail on NC 54 near where the trail would enter Orange County from Saxapahaw, and prior to the future trail entering OWASA-owned land around Cane Creek Reservoir. As a result of the County's purchase and discussions with Ms. Deprez, a narrow trail easement was agreed to from the County's land to Mebane-Oaks Road, so that hikers would not have to walk in the NC 54 right of way to reach the intersection. FINANCIAL IMPACT: There is no cost for the trail easement. Orange County will cover transaction and closing fees, which should not exceed $5,000 and will come from previously allocated Mountain to Sea Trail funds. SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal impacts are applicable to this item: • GOAL: CREATE A SAFE COMMUNITY The reduction of risks from vehicle/traffic accidents, childhood and senior injuries, gang activity, substance abuse and domestic violence. The easement will make the Mountain to Sea Trail hiking connection to Mebane-Oaks Road safer from vehicle/traffic accidents by keeping hikers out of the NC 54 right-of-way. ENVIRONMENTAL IMPACT: The following Orange County Environmental Responsibility Goal impact is applicable to this item: 2 • 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 trail easement will provide a permanent protected natural buffer along a busy highway, intersection, and developed land. RECOMMENDATION(S): The Manager recommends that the Board adopt the resolution approving the acceptance by Orange County of the trail easement and authorize the Chair and the Clerk to sign the trail 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 June 30, 2020. 3 RES-2020-019 Attachment 1 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Trail Easement between Orange County and Christina Deprez WHEREAS, low impact recreation in Orange County is an important facet of the economy and time honored way of life in the County; and WHEREAS, Orange County has an adopted goal promoting the Mountains to Sea Trail in the County; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements along the proposed route of the Mountains to Sea Trail; and WHEREAS, the Christina Deprez trail easement includes approximately .25 acres along the NC 54 travel corridor with direct access to Mebane Oaks Road and the adjacent Orange County land; and WHEREAS, a conservation easement on this approximately .25 acres would ensure the preservation of this trail and allow for safe passage to and from county owned land; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the trail easement to land owned by Christina Deprez; 2) approve the execution of this trail easement agreement with Christina Deprez, 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, 2020; and 4) authorize County staff to sign any and all closing documents upon consultation with the County Attorney. This the 7t" day of April, 2020. Penny Rich, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board tills//1/KII///111111/1/��,, 1/ Caterp' lar 2� Cr 0 U1 O 'O P PN 4J L tic �sA Inn at Bingham School Eric Knight O O Z O Gree...� 01 r. i Acquisition of Land for MST —�Adopted trail route 0 390 780 1,560 Feet 11111 Adjusted route 1 I I I 1 1 County parkland&open space Orange county Dept.of Environment,Agriculture, ®Conservation easements held by other entities Parks and Recreation OC129Q O:\gishome\gisproj\ land_resource\mtnsea_trl.mxd(Prop Mtn2Sea 0 OWASA land NC 54 W to Vernon Rd)11/18/2019(Modified 3/30/2020) 0 m Y O W Z a m W g Deprez Property .. . a sA v. _ z v Deprez Trail Easement Deprez trail easement 0 70 140 280 Feet Adopted trail route I I I I I Orange County Adjusted route Dept.of Environment,Agriculture, Parks and Recreation OC129Q O:\gishome\gisproj\ County parkland&open space land_resource\mtnsea_trl.mxd(Prop Mtn2Sea NC 54 W to Vernon Rd)11/18/2019 6 Attachment 4 This instrument prepared by: John L.Roberts,Office of the Orange County Attorney Box 8181,Hillsborough,NC 27278 Return after recording to: Christian R.Hirni,D.E.A.P.R. Box 8181,Hillsborough,NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE PIN 9820422359 DEED OF TRAIL EASEMENT This Deed of Trail Easement ("Easement") is granted on this_day of , 2020, by CHRISTINA H. DEPREZ, having an address of 6720 Mebane Oaks Road, Mebane,NC 27302 (referred to as "Grantor"), to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough,NC 27278, (referred to herein as "Grantee"). The Grantor and Grantee are collectively referred to as "The Parties". The designation Grantor and Grantee as used herein shall include said parties, their heirs, successor and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context. RECITALS A. Grantor is the sole owner in fee simple of certain real property situated, lying, and being in Orange County,North Carolina, being more particularly described in that deed recorded in Deed Book 6631, Page 2268, Orange County Registry,North Carolina(hereinafter,the "Property"). B. Grantee is an entity qualified to accept, hold and manage land and easements under the North Carolina Conservation and Historic Preservation Agreements Act, Chapter 121, Article 4 of the North Carolina General Statutes (the "Act"), which authorizes and permits the creation and enforcement of conservation easements for the purpose of, inter alia, retaining land areas predominantly in their historic, agricultural, natural, scenic, open or wooded condition. - 1 - 7 C. Pursuant to the Act, Grantor desires to grant a trail easement over a certain portion of the Property, consisting of.25 acres, more or less, is the subject of this Easement and is marked on the plat of survey recorded in Plat Book 121, Page 3, Orange County Registry, and described in Exhibit A attached hereto and incorporated herein by this reference (hereinafter referred to as the "Trail Area") within which a Trail may be constructed, thereby restricting and limiting the use of the Trail Area to the terms, conditions and purposes hereinafter set forth, and Grantee is willing to accept such easement. D. By restricting and limiting the use of the Trail Area in accordance with the terms and conditions of this Easement, the Parties intend to preserve the natural features and resources of the Trail Area; protect the habitat of native plants and animals; sustain scenic values; maintain water quality and utilize the Trail Area for public educational, scientific and low-impact recreational pursuits (said purposes being hereinafter referred to as the "Conservation Values"). E. The Parties acknowledge and agree that (i) the recording of this Easement shall be conclusive evidence of its acceptance of same by Grantee; (ii) Grantee will be the "holder" (as that term is defined in the Act) of this Easement and (iii) Grantee is a "qualified organization" and "eligible donee" within the meaning of Section 170(h)(3) of the Internal Revenue Code (the "Code") and regulations promulgated thereunder. F. Grantee intends to include the Trail within the Trail Area ("Trail") as part of the North Carolina Mountains-to-Sea Trail and Grantor and Grantee agree that such inclusion grants the Grantee, and its agents or representatives, the right to establish a trail for use by the general public within the Trail Area. G. The undersigned Grantee acknowledges that Grantor has donated the easement contained herein over the Trail Area in accordance with the provisions of Article V of this Easement. H. The Parties acknowledge and agree that as a component of the North Carolina Mountains-to-Sea Trail, the Trail Area, in accordance with Chapter 143B, of the North Carolina General Statutes, shall be subject to a general management plan devised by the North Carolina Department of Natural and Cultural Resources ("NCDNCR"). 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, Grantor hereby voluntarily grants and conveys to Grantee, its successors or assigns, and Grantee, its successors or assigns, hereby voluntarily accepts, forever and in perpetuity an Easement on the Property, which Easement is an immediately vested interest in real property of the nature and character described herein, and a right-of-way over, under, and across the Trail Area. Grantor promises that they will not perform, nor knowingly allow others to perform, any act on or affecting the Trail Area that is inconsistent with the covenants contained herein. Grantor authorizes Grantee to enforce these covenants in the manner described below. -2- 8 ARTICLE I. GENERAL 1.1. Statement of Purpose. The purposes of this Easement are to prevent any use of the Trail Area that will significantly impair or interfere with the Conservation Values and to allow for the inclusion of the Trail Area in the North Carolina Mountain-to-Sea Trail so that the Trail Area may be used for educational, scientific and low-impact recreational activities by the general public pursuant to a general management plan that is consistent with the Conservation Values. Grantor intends that this Easement will restrict the use of the Trail Area to such activities as are consistent with these purposes. Grantee agrees that this Easement shall be held exclusively for the purposes set forth herein and as specified in Section 170(h)(4)(A) (or any successor section) of the Code and shall be construed to promote the purposes of the Act. 1.2. Perpetual Duration. This Easement over the Trail Area as further described in Exhibit A, shall be perpetual. It is an easement in gross, runs with the land, and is enforceable by Grantee against Grantor as provided herein, and against Grantor's representatives, successors, assigns, leases, agents and licensees. 1.3. Compliance with other Re_u�ry Requirements. The Grantee is responsible for complying with any and all additional permits or regulation to use or develop the Trail Area under the terms of this Easement, including Orange County, State of North Carolina or Federal requirements, regardless of any reserved rights or permissions contained in this Easement document. ARTICLE II. RESERVED RIGHTS OF GRANTOR Subject to the terms, conditions and restrictions contained herein, Grantor reserves for itself and its successors and assigns the following rights: 2.1. Quiet Enjoyment. All rights accruing from Grantor's fee ownership of the Trail Area, including the right to engage in or permit or invite others to engage in all uses of the Trail Area that are consistent with the Conservation Values, including any reasonable use of the Property that will not interfere with the trail and is not otherwise prohibited by the terms of this Easement. 2.2. Educational and Recreational Uses. Utilization of the Trail Area for scientific, educational and low-impact recreational activities to the same extent the Trail Area is utilized by Grantee for such purposes; specifically, Grantor retains the right to engage in and permit others to engage in such activities that may include, without limitation, walking, hiking, plant and animal observation and study. 2.3. Vegetation Removal. Cutting or clearing of vegetation for insect or disease control, control of non-native plants, removal of trees that threaten to fall on the Trail Area or on land outside the boundaries of the Trail Area. Grantor does not assume any responsibility or liability to the general public for failing to do so. -3- 9 2.4. Fencing. Grantor may install fencing, at Grantor's expense, along the perimeter of the Trail Area, not to exceed four(4) feet in height and constructed of post-and-rail or other open weave construction that preserves scenic views from the Trail. Grantor shall not, through fencing or any other means, methods, or materials, impede access to or discourage use of the Trail. 2.5. Transfer. Grantor retains the right to sell, give, mortgage, lease, or otherwise convey the Trail Area subject to the terms of this Easement. ARTICLE III. RESERVED RIGHTS OF GRANTEE Grantor is not responsible for costs associated with construction and maintenance of the Trail or improvements or accessory facilities of the Trail except for improvements resulting from Grantor exercising a reserved right such as the right to relocate the Trail. Grantee reserves for itself and its successors and assigns the following rights: 3.1. Improvements. Grantee reserves the right to construct a trail as follows: (a) The Trail shall be constructed of a pervious surface, no more than four(4) feet in trail width and in accordance with best management practices to minimize soil erosion and water quality impacts. (b) The Trail may be covered, if at all,by wood chips, gravel, or other porous surface. (c) The Trail may include steps, water bars, and other trail surface structures necessary to facilitate safe passage and erosion control, as well as bridges and culverts for traversing wet areas within the Trail Area. 3.2. Accessory Facilities. Grantee reserves the right to add the following to the Trail Area: (a) Signs to mark the Trail and provide information regarding applicable time,place, and manner restrictions. (b) Signs for interpretive purposes and to indicate the interest of the Grantee in the Trail Area. (c) Fencing, gates and barriers to control access. ARTICLE IV. PROHIBITED AND RESTRICTED ACTIVITIES Any activity on, or use of, the Trail Area inconsistent with the purposes of this Easement is prohibited. Other than as provided herein, the Trail Area shall be maintained in its natural, scenic, wooded and open condition and restricted from any use that would impair or interfere with the Conservation Values or the purposes of this Easement. Except for those rights specifically reserved to Grantor in Article II and without limiting the generality of the foregoing, the following activities and uses are expressly prohibited or restricted as indicated: -4- 10 4.1. Trail Area Use. Access to the Trail Area by the general public is subject to the following limitations: (a) The Trail may be used only for walking, running, hiking, nature study, and the like. (b) Use is limited to the hours between dawn and dusk. (c) Smoking or lighting of fires is prohibited. (d) Consumption of alcoholic beverages is prohibited. 4.2. Mechanized Vehicles. There shall be no use of motorized or mechanized vehicles on the Trail Area except as necessary for the construction, maintenance, operation and management of the North Carolina Mountains-to-Sea Trail. Bicycles are considered to be mechanized vehicles for the purposes of this Easement. 4.3. Industrial or Commercial Use: Industrial and commercial activities are prohibited in the Trail Area. 4.4. Residential Use, Structures, and Signs. There shall be no residential use of the Trail Area. There shall be no constructing or placing of any building, mobile home, billboard or other advertising display, antenna, utility pole, tower, conduit line, or any other temporary or permanent structure or facility on or above the Trail Area except for the following: underground utilities such as fiber optic cable or other communication and internet providing lines, placement and display of no trespassing signs, local, state or federal traffic or similar informational signs, boundary fencing, signs identifying the Conservation Values of the Trail Area, and/or signs identifying Grantor as owner of the Property and Grantee as holder of this Easement, signs identifying the Trail Area as a part of the North Carolina Mountains-to-Sea Trail, signs giving directions or prescribing rules and regulations for the use of the Trail Area, educational and interpretative signs, identification labels or any other similar temporary or permanent signs. 4.5. Agricultural, Timber Harvesting, Grazing and Horticultural Use. Agricultural, timber harvesting, grazing, horticultural and animal husbandry operations are prohibited; provided that this provision shall not prohibit plantings for wildlife habitat or wildlife management. 4.6. Disturbance of Natural Features, Plants and Animals. There shall be no cutting or removal of trees, or the disturbance of other natural features on the Trail Area except for the following: (i) as incidental to boundary marking or fencing as allowed hereunder; and (ii) cutting or clearing of vegetation for insect or disease control, control of non-native plants, removal of trees that threaten to fall on the Trail Area or on land outside the boundaries of the Trail Area and as necessary for the construction, maintenance, operation and management of the North Carolina Mountains-to-Sea Trail. Design and construction of the North Carolina Mountains-to-Sea Trail will be planned and built to minimize environmental impacts to the extent practical. 4.7. Dumping and Filling. The dumping, accumulation, storage, or burying of soil, trash, ashes, garbage, waste, appliances, abandoned or unlicensed vehicles, inoperable or broken machinery, debris, junk, radioactive or hazardous waste, or other materials on the Trail Area is -5- 11 prohibited. Automobiles, trailers, machinery and recreational vehicles shall not be stored on the Trail Area. 4.8. Mineral Use, Excavation, Dredging. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat minerals or other minerals, and no change in the topography of the Trail Area in any manner except as reasonably necessary for the purposes of combating erosion and as reasonably necessary for any activities otherwise permitted on the Trail Area pursuant to the terms of this Easement. ARTICLE V. FEDERAL TAX ITEMS 5.1. Qualified Conservation Contribution. The Easement granted under this agreement has been donated in whole or in part to Grantee by the undersigned Grantor. It is intended to qualify as a charitable donation of a partial interest in real estate (as defined under §170(f)(3)(B)(iii) of the Code)to a qualified organization (as defined in §1.170A-14(c)(1) of the Regulations). 5.2. Definitions of Code and Regulations. "Code"means the Internal Revenue Code of 1986, as amended through the applicable date of reference. "Regulations"mean the provisions of C.F.R. §1.170A-14 as amended through the applicable date of reference. 5.3. Public Benefit. This easement is given for public outdoor recreation and education and is for the substantial and regular use of the general public or the community. This Easement provides significant public benefit as defined in §1.170A-14(d)(2)(i) of the Regulations. Public policies and programs that illustrate and support the significant public benefit of this Easement include: (a) The 2030 Orange County Comprehensive Parks and Recreation Master Plan,which recommends the development of a master plan for the Orange County segment of the Statewide Mountains-to-Sea Trail as well as linking to the priorities set forth in the existing North Carolina State Trails Program; and (b) 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 (c) The Land Use Element of the Orange County Comprehensive Plan(adopted November 18, 2008)with its goal of"Land uses that are appropriate to on-site environmental conditions and features, and that protect natural resources, cultural resources, and community character;" and (d) The Orange County Lands Legacy Action Plan, which was adopted by the Orange County Board of Commissioners on December 12, 2017, and which sets an objective to acquire key parcels needed for a public pedestrian trail and wildlife corridor that would connect Hillsborough Riverwalk to the Haw River for the planned North Carolina Mountains-to-Sea Trail; and (e) N.C.G.S. § 113-34.1 authorizing the Department of Environment and Natural Resources to develop and maintain the North Carolina Mountains-to-Sea Trail, of which this easement will be a part. -6- 12 5.4. Mineral Interests. No Person has retained a qualified mineral interest in the Trail Area of a nature that would disqualify the Easement for purposes of§1.170A-14(g)(4) of the Regulations. 5.5. Notice Required Under Regulations. To the extent required for compliance with §1.170A-13(g)(4)(ii) of the Regulations, Grantor agrees to notify Grantee before exercising any reserved right that may have an adverse impact on the conservation interests or public recreational purposes associated with the Trail Area. 5.6. Trail Area Right. In accordance with §1.170A-14(g)(6) of the Regulations, the undersigned Grantor agrees that the Easement granted under this agreement gives rise to a property right, immediately vested in the Grantee, that entitles the Grantee to compensation upon extinguishment of the easement. The fair market value of the property right is to be determined in accordance with the Regulations; i.e., it is at least equal to the proportionate value that this easement as of the Easement Date bears to the value of the Property as a whole as of the Easement Date. Grantee must use any funds received by application of this provision in a manner consistent with the recreational and conservation purposes of this Easement. 5.7. Qualification Under §2031(C) of the Code. To the extent required to qualify for exemption from federal estate tax under §2031(c) of the Code, and only to the extent such activity is not otherwise prohibited or limited under this Easement, Grantor agrees that commercial recreational uses are not permitted within the Trail Area. ARTICLE VI. ONGOING RESPONSIBILITY OF GRANTOR AND GRANTEE This Easement is not intended in any way to affect any existing obligation of the Grantor as owner of the Property. Among other things, this shall apply to: 6.1. Taxes. Grantor shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If Grantee is ever required to pay any taxes or assessments on their interest in the Property, Grantor shall upon demand reimburse Grantee for the same. 6.2. Upkeep and Maintenance. Grantor shall continue to be solely responsible for the upkeep and maintenance of the Trail Area, to the extent it may be required by law, except as described herein. Grantee shall have no obligation for the upkeep or maintenance of the Trail Area, except as described herein. Grantee shall be solely responsible for construction, upkeep, and maintenance of the Trail, except as described herein. 6.3. Transfer of Trail Area. Grantor agrees to incorporate by reference the terms of this Easement in any deed or other legal instrument by which they transfer or divest themselves of any interest, including leasehold interests, in the Trail Area. Grantor shall notify Grantee in writing at least thirty (30) days before conveying the Trail Area, or any interest therein. Failure of Grantor to do so shall not impair the validity of the Easement or limit its enforceability in any way. -7- 13 6.4. Transfer of Easement. Grantee shall have the right to transfer this Easement to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under 26 U.S.C. Section 170(h) of the Internal Revenue Code, as amended and under NGS 121- 34 et seq., provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Easement. As a condition of such transfer, Grantee shall require that the conservation purposes intended to be advanced hereunder shall be continued to be carried out. If Grantee ever cease to exist or no longer qualify under 26 U.S.C. Section 170(h) of the Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by the Easement. 6.5. Inspection and Access. With reasonable advance notice to the Grantor or with Grantor's prior verbal consent, Grantee, their employees and agents, successors and assigns, shall have the right to enter the Trail Area for the purpose of inspecting the Trail Area to determine whether Grantor, their successors or assigns are complying with the terms, conditions and restrictions of this Easement. 6.6. Enforcement. Grantee shall have the responsibility for management, monitoring and enforcement of the terms of this Easement. Grantee shall complete and file the monitoring reports, a copy of which is kept on file with Orange County. Grantee shall have the right to prevent violations and remedy violations of the terms of this 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 Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of the Trail Area, Grantee shall give Grantor written notice of the violation and Grantor shall have thirty (30) days to cure the violation, before commencing any legal proceedings. If a court of competent jurisdiction determines that a violation may exist or has occurred, Grantee may obtain an injunction to stop the violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring Grantor to restore the Trail Area to its condition prior to the violation, as restoration of the Trail Area may be the only appropriate remedy. The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time. 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 a violation has occurred, Grantee shall have the right to recover its legal costs from Grantor, including attorney's fees or expenses associated with any enforcement or remedial action as it relates to the enforcement of this Easement. ARTICLE VII. REPRESENTATIONS OF THE PARTIES 7.1. Grantor's Title Warranty. Grantor covenants, represents and warrants (i) that it is the sole owner and is seized of the Trail Area in fee simple and has the right to grant and convey this Easement; (ii) that there is legal access to the Trail Area; (iii) that the Trail Area is free and clear of any and all encumbrances, except those permitted title exceptions listed on Exhibit B, attached hereto and incorporated herein by this reference, none of which would nullify, impair -8- 14 or limit in any way the terms or effect of this Easement; (iv) Grantor shall defend its title to the Trail Area against the claims of all persons whomsoever; and (v) Grantor covenants that Grantee, its successors and assigns, shall have the use of and enjoy all of the benefits derived from and arising out of this Easement. 7.2. Grantor's Environmental Warranty. Grantor knows of no release or threatened release of any Hazardous Materials on, at, beneath or from the Trail Area, or arising from or connected with a violation of any Environmental Laws. Grantor hereby promise to hold harmless and indemnify 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, their agents, assigns, and guests, of any Hazardous Materials on, at, beneath or from the Trail Area, 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. 7.3. Liability. Grantor has entered into this Easement in order to make the Trail Area available to the public for recreational and educational purposes as contemplated by Chapter 38A and Section 14313-135.118 of the North Carolina General Statutes and therefore is afforded the statutory limitations upon liability of an"owner"under those provisions as they may be amended from time to time. ARTICLE VIII. MISCELLANEOUS 8.1. Recording. Grantee shall record this instrument in a timely fashion in the official record of Orange County,North Carolina, and may re-record it at any time as may be required to preserve the rights of the Grantee. 8.2. Survival of Terms/Merger of Fee and Easement. Grantor and Grantee agree that the terms of this Easement shall survive any merger of this fee and easement interest in the Trail Area. In the event Grantee becomes owner of the Trail Area, or any portion thereof, Grantee -9- 15 shall transfer its rights title and interest in this Easement to a third party in accordance with sections 6.4. 8.3. Amendment of Easement. This Easement may be amended only with the written consent of the Grantor, their successors and assigns, and the Grantee. Any such amendment shall be consistent with the purposes of this 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.G.S. Section 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 Easement. 8.4. Procedure in the Event of Termination of Easement. If it is determined that conditions on or surrounding the Trail Area 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 Grantor and Grantee, terminate this Easement. If condemnation of a part of the Trail Area or of the entire Property by public authority renders it impossible to fulfill any of these conservation purposes, the Easement may be terminated through condemnation proceedings. 8.5. Interpretation. This Easement shall be interpreted under the laws of the State of North Carolina, resolving any ambiguities and questions of the validity of specific provisions so as to give maximum effect to its conservation purposes. 8.6. Perpetual Duration; Severability. The Easement created by this Deed shall be a servitude running with the land in perpetuity. Every provision of this Deed of Trail Easement that applies to the Grantor or the Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear. Invalidity of any of the covenants, terms or conditions of this Easement, or any part thereof by court order or judgment shall in no way affect the validity of any of the other provisions hereof, which shall remain in full force and effect. 8.7. Subsequent Liens on the Trail Area. No provision of this Easement should be construed as impairing the ability of Grantor to use the Trail Area as collateral for subsequent borrowing. Any such liens shall be and remain subordinate to this Easement. 8.8. Subsequent Easements/Restrictions on the Trail Area. The grant of any easement or use restriction that might diminish or impair the Conservation Values of the Trail Area is prohibited. Any such easement or restriction shall be subordinated to this Easement. 8.9. Notices. Any notices required by this Easement shall be in writing and shall be personally delivered or sent by first class mail to Grantor or Grantee respectively, at the following address,unless a party has been notified in writing by the other of a change of address. - 10- 16 To the Grantor: To the Grantee: Christina H Deprez Orange County DEAPR 6720 Mebane Oaks Road PO Box 8181 Mebane,NC 27302 Hillsborough,NC 27278 8.10. Entire Agreement. This instrument sets forth the entire agreement of the Parties with respect to the Easement and supersedes all prior discussions, negotiations, understandings or agreements relating to the Easement. If any provision is found to be invalid, the remainder of the provisions of this Easement, and the application of such provision to persons of circumstances other than those as to which it is found to be invalid, shall not be affected thereby. 8.11. Availability or Amount of Tax Benefits. Grantee make no warranty, representation or other assurance regarding the availability, amount or effect of any deduction, credit or other benefit to Grantor or any other person or entity under United States or any state, local or other tax law to be derived from the donation of any part of the value of this Easement or other transaction associated with the donation of this Easement. Grantor's donation is not conditioned upon the availability or amount of any such deduction, credit or other benefit. Grantee makes no warranty,representation or other assurance regarding the value of this Easement or of the Trail Area. As to all of the foregoing, Grantor is relying upon Grantor's own legal counsel, accountant, financial advisor or other consultant and not upon Grantee's legal counsel, accountant, financial advisor or other consultant of Grantee. In the event of any audit or other inquiry of a governmental authority into the effect of this donation upon the taxation or financial affairs involving Grantor or Grantor's heirs, successors or assigns or other similar matter then Grantee shall be reimbursed and indemnified for any cost or expense of any kind or nature whatsoever incurred by Grantee in responding or replying thereto. 8.12. Warranties and Representations of Owner. By signing this Easement, Grantor acknowledges, warrants and represents to Grantee that: (a) Grantor has had the opportunity to be represented by counsel of Grantor's choosing and fully understand that Grantor is hereby permanently relinquishing property rights which would otherwise permit Grantor to have a fuller use and enjoyment of the Trail Area. (b) There are no recorded or unrecorded leases or other agreements for the production of minerals or removal of timber from the Trail Area which would, if any of the activities permitted under such lease or other agreement were undertaken by Grantor, violate the covenants or restrictions in this Easement or otherwise defeat the conservation Purpose. TO HAVE AND TO HOLD this Deed of Conservation Easement unto Grantee, their successors and assigns, forever. - ll - 17 IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: Christina H Deprez Accepted: GRANTEE: ORANGE COUNTY,NORTH CAROLINA By: Penny Rich, Chair Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners - 12- 18 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 January, 2020. Notary Public My commission expires: 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 January, 2020. Notary Public My commission expires: - 13 -