Loading...
HomeMy WebLinkAboutAgenda - 06-16-20; 8-h - Resolution of Approval – Conservation Easement on Triangle Land Conservancy’s Patterson-Thornton Property ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 16, 2020 Action Agenda Item No. 8-h SUBJECT: Resolution of Approval – Conservation Easement on Triangle Land Conservancy’s Patterson-Thornton Property DEPARTMENT: Environment, Agriculture, Parks and Recreation (DEAPR) ATTACHMENT(S): 1. Resolution of Approval 2. Location Map 3. Site Map 4. Draft Conservation Easement INFORMATION CONTACT: David Stancil, 245-2510 Christian Hirni, 245-2514 PURPOSE: To consider a resolution to approve the acceptance by Orange County of a conservation easement donation for Triangle Land Conservancy’s Patterson-Thornton 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 over 2,700 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 DEAPR asking if the County would hold a permanent, donated conservation easement on the approximately 54-acre Patterson-Thornton 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 to hold a conservation easement on the property. The property is entirely forested with mature mixed hardwoods. It is bound on the north by approximately 3,250 stream feet of Morgan Creek located in the University Lake Protected Watershed. The property is directly downstream from TLC’s Morgan Creek riparian buffer easements, OWASA’s Tilley’s Creek Conservation Easement, and less than two miles upstream of University Lake (managed by Orange Water & Sewer Authority (OWASA)). The property also contains a large portion of the priority Calvander Laurel Bluff and Bottom listed in the State Natural Heritage Area Inventory. Conservation of this property will protect the drinking water of southern Orange County and protect the habitat of a multitude of wildlife and unique plant 1 species. TLC plans to hold this property in perpetuity to protect water quality and to provide unique flora and fauna habitat. The planned conservation easement would be donated and 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 Patterson-Thornton property is enrolled in the Present Use Value taxation program. The donation to Triangle Land Conservancy, a private, non-profit 501c3 organization, will eliminate obligation of tax henceforth. 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 impact is 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 3,250 linear feet of Morgan Creek, which feeds directly into University Lake, a water supply for OWASA. The property also contains a large portion of the priority Calvander Laurel Bluff and Bottom listed in the State Natural Heritage Area Inventory. The easement will permanently protect the habitat of a multitude of wildlife and unique plant species. 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 June 30, 2020. 2 RES-2020-040 Attachment 1 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, Triangle Land Conservancy’s Patterson-Thornton property includes approximately 54 acres in the University Lake protected watershed and 3,250 linear feet of Morgan Creek, which drains directly to University Lake—a drinking water supply reservoir for the towns of Chapel Hill and Carrboro; and WHEREAS, the Patterson Thornton Property contains a significant portion of the high priority Calvander Laurel Bluff and Bottom listed in the State Natural Heritage Area Inventory; and WHEREAS, Triangle Land Conservancy, the owners of the Patterson-Thornton property, wishes 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 54 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 June 30, 2020; 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 16th day of June, 2020. ____________________________________________ Penny Rich, Chair Orange County Board of Commissioners _____________________________ Donna Baker, Clerk to the Board 3 Morgan CreekUt Phils CreekBolin Creek (Hogan Lake)Jones CreekBu c k h o r n B r a n c h UtUt Phils C r e e kUt Ut Ut Ut UtUtUt UtUtUt Ut UtUtUt Ut UtUtUtUtUtUtUtUt Ut Ut UtUtUt Ut UtUtUtUt UtUtUtUtUtUtUt UtUtUtUt Ut Ut Ut Ut UtUt UtUtUt Ut Ut UtUtUtUtUtUtUtUt UtUtUt Ut UtUt UtUtUtUt UtUtUt UtUt Ut UtUt UtUtUtUt Ut UtUtU t Ut UtUt Ut UtUt UtUt Ut UtUtUtUt Ut Ut NC 54 OLD NC 86 H A T C H R D DAIR Y L A N D R D NEVILLE RDOLD GREENSBORO RD OLD FAYETTEV ILLE RD MAIN ST HIL L S B O R O U G H R D JONES FE R RY R D JO MAC RD IVEY RDR O G E R S R D PATHWAY DR DAVIE RDJAMES STPOPLAR AVE TA L LYHO TR L CAROL ST WINSOME LN CARL DREXCELL DRUNION GROVE CHURCH RDREEVES RDLASSENS TRL WIN M O R E A V E MEADOW LN WATSON RDTRAMORE DRGEMENA RD GARY RD B R I G H T S W A Y SIMPSON STCOBBLESTONE DRBRITTON DR GATES LNAUTUMN DRGENESIS RDLEA K L N TILLEYS FARM RDODAY DRPARRISH RD STONY HILL RD GRANITE TRLROBI N R DMCCAULEY LNTM LOWLANDS TRAIL HOUND CTTWISTED O A K D R CAMDEN L N JOHNS WOODS RDWHIRLAWAY LNHACKNEY R D HARWARD LNOASIS DR WARREN CTROLLINGWOOD RDTROUT L I LY LN LY N N D R SABR E C T LACOCK RDSTURBRIDGE LNTIMOTHY LNFAIR OAKS RDFARM S T E A D D R MILTON DRLegend Roads Tract Boundary Streams County Easements Other Easements County Owned Land Non-County Parks ¶ 0 2,000 4,000 6,000 8,0001,000 Feet TLC Conservation Easement Context (Patterson-Thornton) Tract Information Landowner: Patterson-Thornton (Donation to TLC)Lat: 35' 55.91"Long: 79' 07.18"Date: 4/14/2020Image: 2017 Aerial PhotoCreated By: Christian HirniAcres: 54 4 UtM o r g a n C r e e kUt UtUtUt UtUtUtCHEEKIE BOY LNHATCH RDHANSEN C R E E K R D Legend Roads Tract Boundary Streams Other Easements ¶ 0 230 460 690 920115 Feet TLC Conservation Easement Project (Patterson-Thornton) Tract Information Landowner: Patterson-Thornton (Donation to TLC)Lat: 35' 55.91"Long: 79' 07.18"Date: 4/14/2020Image: 2017 Aerial PhotoCreated By: Christian HirniAcres: 54 5 UtM o r g a n C r e e kUt UtUtUt UtUtUtCHEEKIE BOY LNHATCH RDHANSEN C R E E K R D Legend Roads Tract Boundary Streams Other Easements Natural Heritage Areas ¶ 0 230 460 690 920115 Feet TLC Conservation Easement Project (Patterson-Thornton) Tract Information Landowner: Patterson-Thornton (Donation to TLC)Lat: 35' 55.91"Long: 79' 07.18"Date: 4/14/2020Image: 2017 Aerial PhotoCreated By: Christian HirniAcres: 54 6 Attachment 4 Model Conservation Easement Revised Page 1 of 21 This instrument prepared by and return to: John Roberts, Orange County Attorney P.O. Box 8181, Hillsborough, NC 27278 NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF CONSERVATION EASEMENT for ORANGE COUNTY This Conservation Easement (hereinafter "Conservation Easement") is made the ___ day of _______________, 2020 by and between Triangle Land Conservancy, having an address at 514 S. Duke St., Durham, NC 27701 (hereinafter "Grantor") and Orange County, North Carolina, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "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 (the "Property") which consists of approximately 53.767 acres of land, located in Chapel Hill Township, Orange County, North Carolina and identified as that certain parcel with PIN 9769434914 as shown on that certain plat titled “Conservation Easement Survey for Triangle Land Conservancy” prepared by Matthew S. Jerrell, and recorded at Plat Book ____, Page ____, Orange County Registry (the “Plat”), together with access granted by that certain Deed of Easement recorded in Book ____, Page ____, Orange County Registry. The Property does not include buildings or other improvements. B. The Grantee is a body politic existing under Chapter 153A of the North Carolina General Statutes. 7 Attachment 4 Model Conservation Easement Revised Page 2 of 21 C. To the extent practicable, Grantor wishes to maintain the Property as a woodland suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to maintain the Property for certain public outdoor recreation uses as more particularly described herein, and to protect the quality of water running off from this land and into Morgan Creek, such creek also has conservation value. The grant of this Conservation Easement will further said wish, and will serve the following “Conservation Purposes,” as such term is defined in Section 170 (h)(4)(A) of the Code: The Property is a significant natural area that qualifies in its present condition as a “relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,” as that phrase is used in P.L. 96-541, 26 USC 170(h)(A)(ii), as amended, and in regulations promulgated thereunder. Specifically, the Property protects a mature bottomland forest within the Calvander Laurel Bluff and Bottom Natural Area as designated by the NC Natural Heritage Program. The Natural Area contains regionally rare plants such as Mountain Laurel (Kalmia latifolia) and Galax (Galax urceolata), as well as supports a large oxbow pool that offers breeding habitat for salamanders with long larval stages. Moreover, the property has significant footage along a section of Morgan Creek upstream of University Lake that is classified by the NC Department of Environmental Quality as High Quality Water. The Conservation Easement is pursuant to federal, state, and local governmental conservation policy and will yield a significant public benefit, specifically 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 Morgan Creek, a tributary of the Cape Fear river basin, upstream from University Lake. The Conservation Purposes of this easement, notwithstanding anything to the contrary contained herein, are also recognized by, and this Conservation Easement will also serve, the following clearly delineated governmental conservation policies: (1) the Orange County Board of Commissioners’ goal (adopted June 21, 1999) to identify and coordinate the preservation of the County’s most significant natural areas; and (2) the Land Use Element of the Orange County Comprehensive Plan (adopted 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;” (3) the protection of similar Orange County properties designed to protect conservation and open space values through conservation easements granted to the Grantee and others in the vicinity of the Grantor’s Property; and (4) Article 17 of the North Carolina General Statutes NCGS 113A-24, entitled Conservation, Farmland and Open Space Protection and Coordination, otherwise known as the 8 Attachment 4 Model Conservation Easement Revised Page 3 of 21 “Million Acre Initiative,” which provides that the State of North Carolina shall encourage, facilitate, plan, coordinate, and support appropriate federal, State, local, and private land protection efforts so that an additional one million acres of farmland, open space and conservation lands in the State are permanently protected by December 31, 2009; and (5) the Clean Water Management Trust Fund, North Carolina General Statute 113- 145.1 et seq., which recognizes the importance of protecting riparian buffers in conserving clean surface water; and (6) 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. The significant natural resources and wildlife habitat of the Property, and its contribution to the protection of the open space and rural character in the Rural Buffer of Chapel Hill Township and the water quality of University Lake are collectively referred to as the "Conservation Values" of the Property. D. The characteristics of the Property, its current use and state of improvement, are depicted on an Orange County GIS map and sketch of the Property and other adjoining property of Grantor prepared by Grantee for Grantor, which is attached as Exhibit A to this Conservation Easement and incorporated herein by reference. Grantor worked with Grantee to ensure that the GIS map and sketch is a complete and accurate description of the Property as of the date of this Conservation Easement. It will be used by Grantor and Grantee to assure that any future changes in the use of the Property will be consistent with the terms of this Conservation Easement. However, the GIS map and sketch is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a controversy over its use. Grantor and Grantee have copies of Exhibit A. The original of Exhibit A will remain on file at the Orange County Department of Environment, Agriculture, Parks and Recreation. E. Grantor and Grantee have the common purpose of conserving the above-described Conservation Values of the Property in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., and G.S. § 153A-176 and G.S. § 160A-266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses," and Grantor and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, Grantor, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby give, grant and convey unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Easement over the Property of the nature and character as follows: 9 Attachment 4 Model Conservation Easement Revised Page 4 of 21 Except as otherwise reserved to Grantor in this Conservation Easement, the parties agree that all development rights appurtenant to Grantor’s Property are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of the Property as it now or hereafter may be bounded or described, or used or transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of Grantor’s Property or any other property. 1. PURPOSE. The purposes of this Conservation Easement are to ensure that the Property will be retained forever predominantly in its natural, scenic, and forested condition; to protect native plants, animals, or plant communities on the Property, while allowing traditional uses on the Property that are compatible with and not destructive of the Conservation Values of the Property such as selective timber harvesting and hunting; and to prevent any use of the Property that will impair or interfere with the Conservation Values or interests of the Property. As authorized in the Uniform Conservation and Historic Preservation Act, N.C. Gen. Stat. § 121-34 et seq., this Conservation Easement is perpetual; it restricts Grantor’s property in perpetuity; and it is enforceable by Grantee against Grantor and Grantor’s representatives, heirs, successors and assigns, lessees, agents, and licensees. Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require Grantor to take any action to restore the condition of the Property after any act of nature or other event over which Grantor had no control. Grantor understands that nothing in this Conservation Easement relieves them of any obligation or restriction on the use of the Property imposed by law. 2. PROPERTY USES. Any activity on, or use of, the Property inconsistent with the purposes of this Conservation Easement is prohibited. The Property shall be maintained in its natural, scenic and open condition and restricted from any development that would impair or interfere with the Conservation Values of the Property. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that the allowed activities do not impair the Conservation Values of the Property. Additional retained rights of Grantor are set forth in Paragraph 3 below. 2.1 Subdivision. All of the Property shall be kept under the same fee simple ownership. No portion of the Property shall be sold, conveyed, mortgaged, partitioned or subdivided so as to create the possibility of fee simple ownership of any portion that would be separate or different from the fee simple ownership of the remainder of Grantor’s Property. 2.2 Stream Crossings. Grantor reserves the right to construct and maintain bridges or other stream crossings up to 10 feet wide, provided such crossings are connected to trails 10 Attachment 4 Model Conservation Easement Revised Page 5 of 21 permitted herein, constructed in a way as to maximize water quality protection, and permitted by all applicable regulatory authorities. The number and width of stream crossings must be minimized. New stream crossings and realignments thereof require the prior written approval of Grantee. 2.3 Timber Harvest. Trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, for firewood and other uses, including construction of permitted improvements and fences on the Property. No additional timber harvesting shall be allowed. 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 Property, including, but not limited to, hiking, camping, picnicking, horseback riding, non-motorized bicycling, lawful hunting and fishing, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land so long as authorized by Orange County zoning regulations and consistent with permits required by and issued by Orange County under its laws and ordinances. Pursuit of wildlife by any form of motorized transportation is not allowed. Grantor may also construct and maintain fences, camp sites, mobile radio repeaters, transmitters or other communication devices, horse trails, foot trails, and or non-motorized vehicle trails incidental to such purposes, and may lease or license any portion of the Property for such recreational purposes. Grantor reserves the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Property, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation value of the Property. 2.5 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 allowed above, b) the maintenance of roads, hiking, horseback and non-motorized vehicle trails permitted hereunder, and c) erosion or flooding control. 2.6 Destruction of Plants. Grantor shall have the right to cut and remove a) diseased trees, shrubs, or other plants; b) non-native or invasive trees, shrubs, or other plants; and c) to cut firebreaks. Grantor shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Except for use around improvements or in gardens there shall be no planting of non-native trees, shrubs, or other plants in the Property. 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. 2.7 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Property that would be detrimental to water purity or, except as 11 Attachment 4 Model Conservation Easement Revised Page 6 of 21 specified herein, that could alter the natural water level or flow in or over the Property. Other than the construction of a well to serve allowed improvements, there shall be no alteration, depletion or extraction of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies on the Property. Diking, draining, filling or removal of wetlands is prohibited. 2.8 Natural Resource Restoration and Enhancement Activities. 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. 2.9 Signage. No signs or billboards or other advertising displays are allowed on the Property except as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not significantly diminish the scenic character of the Property may be displayed to identify trails and the Conservation Values of the Property, to identify the name and address of the Property and the names of persons living on the Property, to give directions, to advertise or regulate permitted uses on the Property and proscribe rules and regulations for recreational use of the protected Property, to advertise the Property for sale or rent, and to post the Property against trespassers. 2.10 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by Grantee to control invasive species detrimental to the Conservation Values of the Property. 2.11 No Dumping. There shall be no storage or dumping of trash, garbage, abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous substance, or toxic waste on the Property (except the short-term storage of household garbage and waste). There shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Property or on adjacent property owned by Grantor, that could cause erosion or siltation on the Property. 2.12 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 approved by the Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques. 2.13 Commercial Development. Any commercial or industrial use of or activity within the Property is prohibited. This restriction on use shall not be construed to prohibit use of the Property for recreational, educational and scientific purposes, as long as such activities are otherwise consistent with this Conservation Easement. 12 Attachment 4 Model Conservation Easement Revised Page 7 of 21 2.14 Extinguishment of Development Rights. Except as otherwise reserved to Grantor in this Conservation Easement, the parties agree that all development rights appurtenant to the Property are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of Grantor’s Property as it now or hereafter may be bounded or described, or used or transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Property or any other property. 2.15 Stream Buffer Zone. Grantor and Grantee have designated a stream buffer area as legally described in Exhibit B, attached hereto and incorporated herein (“Stream Buffer Zone”). Commercial forestry, passive recreation, agricultural, horticultural and animal husbandry operations, grazing, predator control, timber removal, cutting, logging, and mowing or other disturbance or interference of native plants are prohibited within the Stream Buffer Zone, except selective cutting or clearing of vegetation for fire protection. Hunting and fishing is permitted pursuant to applicable rules and regulations. Within the Stream Buffer Zone there shall be no activities, pollution or surface alteration of any kind that would be detrimental to water purity or that would alter natural water levels, drainage, sedimentation and/or flow in or over the Property or into any surface waters, or cause soil degradation or erosion, including but not limited to any sort of diking, dredging, alteration, draining, filling or removal of wetlands, agricultural practices or timber management. Furthermore, prior to engaging in any activity outside of the Stream Buffer Zone that may result in the degradation of the Stream Buffer Zone, Grantor agrees to consult with Grantee and/or appropriate governmental agencies to ensure that any potential degradation is avoided or minimized. Construction of roads, trails, and paths on the Property within the Stream Buffer Zone is prohibited, except for (1) the maintenance of those unpaved paths that exist as of the date of this Conservation Easement as described in the Baseline Documentation Report, and (2) construction and maintenance of primitive foot paths limited to single file pedestrian traffic. Any unpaved paths may not be widened or covered with asphalt or other impervious materials. For the purposes of this Conservation Easement, gravel shall not be considered an impervious material. Construction of buildings, structures, and improvements (including but not limited to minor structures and fences) within the Stream Buffer Zone is prohibited. 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 Property not prohibited by this Conservation Easement. Prior to making any change in use of the Property, 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. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Property subject to the terms of this Conservation Easement. 13 Attachment 4 Model Conservation Easement Revised Page 8 of 21 4. GRANTEE'S RIGHTS. To accomplish the purpose of this Conservation Easement, the following rights are granted to Grantee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the Conservation Values of the Property and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after prior written notice to Grantor, to enter the protected Property at reasonable times for the purposes of: (a) inspecting the protected Property to determine whether Grantor, their representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the Property. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or at Grantee's direction or with Grantee's permission shall be reported to 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 the 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 Property. Grantee will consult Grantor prior to implementing 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 Grantor, or in any way to affect any existing obligation of Grantor as owner of the Property. Among other things, this shall apply to: (a) Taxes – Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property. (b) Upkeep and Maintenance - Grantee shall have no obligation for the upkeep or maintenance of the Property. The granting of this Conservation Easement shall not in and of itself be construed to create or impose upon Grantor any obligation for the upkeep or maintenance of the Property except to the extent elsewhere required by this Conservation Easement. 14 Attachment 4 Model Conservation Easement Revised Page 9 of 21 6. ACCESS. No right of access by the general public to any portion of the Property is conveyed by this Conservation Easement. However, the public has the right to view the Property from adjacent publicly accessible areas such as public roads and waterways. 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 Grantor or with Grantor’s prior verbal consent, the Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of the Property, the Grantee shall give 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 Grantor to restore the Property to its condition prior to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, 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 Property caused by third parties, or resulting from causes beyond Grantor’s control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Property or harm to the Property resulting from such action. (c) 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 15 Attachment 4 Model Conservation Easement Revised Page 10 of 21 determination that the Conservation Values of the Property have been impaired by Grantor’s breach, assume the enforcement rights of Grantee pursuant to Section 7(a) and take appropriate action to enforce the terms of this Conservation Easement. 8. STEWARDSHIP OF THE EASEMENT. Grantor, 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 that it will report on the condition of the Property, or provide for such reporting to Grantee no less frequently than once a year; and further will report immediately to Grantee any observed and/or known violations of this Conservation Easement. Grantor and Grantee covenant that the obligation to provide monitoring of the Property will survive any transfer of Grantor’s fee interest in the Property. 9. TRANSFER OF EASEMENT. Grantee has the right to transfer, assign, convey, or otherwise to co-hold the Conservation Easement created by this deed of conservation easement to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under 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 143B, 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 Grantor’s obligation to provide stewardship of the Conservation Easement as set forth in Section 8. If Grantee ever ceases to exist or no longer qualify 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. 10. TRANSFER OF THE PROPERTY. Grantor shall notify Grantee, in writing, at least thirty (30) days prior to any conveyance by Grantor of the Property or any interest in the Property, and the document of conveyance shall expressly refer to this Conservation Easement and, by its terms, the conveyance shall be made subject to and subordinate to this Conservation Easement. 11. 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 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. Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 16 Attachment 4 Model Conservation Easement Revised Page 11 of 21 12. TERMINATION OF EASEMENT. If it is determined by a court with jurisdiction 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 Grantor and Grantee, 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 by a court with jurisdiction. 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 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 a percentage of the gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to Grantor), equal to the ratio of the appraised value of this easement to the unrestricted fair market value of the Property, as these values are determined on the date of this Conservation Easement. The Grantee shall use the proceeds consistently with the Conservation Purposes of this Conservation Easement. 13. PROCEDURE IN THE EVENT OF CONDEMNATION OR EMINENT DOMAIN. Grantor and Grantee recognize that the partial sale of this Conservation Easement gives rise to a property right, immediately vested in the Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Property prior to the restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or eminent domain action shall be taken, on all or part of the Property, by any authorized authority, said authority shall be liable to the Grantee for the value of the property right vested in the Grantee at the time of the signing of this Conservation Easement. If condemnation or a taking by eminent domain of a part of the Property or the entire Property by a public authority renders it impossible to fulfill any of the Conservation Purposes of this Conservation Easement on all or part of the Property, this Conservation Easement may be terminated or modified accordingly through condemnation proceedings. Grantor and Grantee agree that this Conservation Easement is a currently vested real property right with a value equal to the proportionate value of the Conservation Easement to the unencumbered value of the fee, as of the date of this Conservation Easement. If the Conservation Easement is terminated or modified and any or all of the Property is sold or taken for public use, then, as required by Section 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at zero percent (0%) of the Property’s unrestricted value, subject to any applicable law that expressly requires for a different disposition of the proceeds. 17 Attachment 4 Model Conservation Easement Revised Page 12 of 21 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 Grantor shall not be responsible to share any proceeds awarded. All condemnation related expenses, including reasonable attorney fees, incurred by Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 14. 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. 15. INDEMNIFICATION AND INSURANCE. Grantor agrees to indemnify and hold Grantees harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof, unless due to the negligence of Grantees or their agents, in which case liability shall be as provided by law. In addition, Grantor agrees to maintain liability insurance covering the Property 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; and warrant that Grantee is and will remain a named insured on Grantor’s Property insurance policies covering the Property. 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. 16. TITLE. Grantor warrants that they hold fee simple title to the Property, free from all encumbrances, except for those exceptions deemed by the Grantee as acceptable and set further in Exhibit D to this Conservation Easement, and hereby promise to defend the same against all claims that may be made against it. 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 to the State of North Carolina only in the event 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 Grantor or Grantee, as the case may be, shall automatically vest in the State of North Carolina. 17. 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 Grantor: To Grantee: Triangle Land Conservancy Orange County Department of Environment, 514 S. Duke Street Agriculture, Parks and Recreation 18 Attachment 4 Model Conservation Easement Revised Page 13 of 21 Durham, NC 27701 Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 18. ENVIRONMENTAL CONDITION. Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property. 19. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. 20. PARTIES. Every provision of this Conservation Easement that applies to Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. This Conservation Easement shall not be construed to benefit or to create any rights in any third parties, including but not limited to the general public. 21. 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. 22. MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Property. 23. SUBSEQUENT LIENS ON THE PROPERTY. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor to use the Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 24. DOCUMENTATION REPORT. The parties acknowledge that the Baseline Documentation Report dated ______________, a copy of which is on file at the offices of the Grantee, accurately establishes the uses, structures, Conservation Values and condition of the protected Property as of the date hereof. See summary attached as Exhibit C. 25. 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. 26. 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 19 Attachment 4 Model Conservation Easement Revised Page 14 of 21 without reservation the rights and responsibilities conveyed by this Conservation Easement. This Conservation Easement is to be effective the date recorded in the Orange County Registry of Deeds. 27. ATTORNEY’S FEES. In connection with any litigation arising out of this Contract, the prevailing party shall be entitled to recover from the other party all costs incurred by it, including reasonable attorneys' fees, which shall include fees on appeal. TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee forever. 20 Attachment 4 Model Conservation Easement Revised Page 15 of 21 IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: TRIANGLE LAND CONSERVANCY By: ____________________________ Name: __________________________ Title: __________________________ Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: _______________________ Penny Rich, Chair Orange County Board of Commissioners ATTEST: _______________________ Donna S. Baker, Clerk to the Board of Commissioners 21 Attachment 4 Model Conservation Easement Revised Page 16 of 21 Acknowledgments NORTH CAROLINA COUNTY OF ORANGE I, ____________________, a Notary Public of Orange County, North Carolina do hereby certify that ______________________ and wife _________________________ personally appeared before me and acknowledged the due execution of the foregoing instrument. Witness my hand and notarial seal this the ____ day of __________, 2020. _________________________________ 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 notarial seal this the ____ day of __________, 2020. _________________________________ Notary Public My commission expires: ______________________ 22 Attachment 4 Model Conservation Easement Revised Page 17 of 21 EXHIBIT A. GIS MAP AND SKETCH OF PROPERTY EXHIBIT B. STREAM BUFFER ZONE EXHIBIT C. SUMMARY OF THE BASELINE DOCUMENTATION REPORT EXHIBIT D. PERMITTED EXCEPTIONS 23 Attachment 4 Model Conservation Easement Revised Page 18 of 21 EXHIBIT A GIS MAP AND SKETCH OF PROPERTY [see following page] 24 Attachment 4 Model Conservation Easement Revised Page 19 of 21 EXHIBIT B STREAM BUFFER ZONE BEING ALL of that certain area entitled “Stream Buffer Area” on that certain plat entitled “Conservation Easement Survey for Triangle Land Conservancy” prepared by Matthew S. Jerrell, and recorded at Plat Book ______, Page _______, Orange County Registry. 25 Attachment 4 Model Conservation Easement Revised Page 20 of 21 EXHIBIT C SUMMARY OF THE BASELINE DOCUMENTATION REPORT 26 Attachment 4 Model Conservation Easement Revised Page 21 of 21 EXHIBIT D PERMITTED EXCEPTIONS 1. Taxes or assessments for the year 2020, and subsequent years, not yet due or payable; 2. Matters shown on that certain plat titled “Conservation Easement Survey for Triangle Land Conservancy” prepared by Matthew S. Jerrell, and recorded at Plat Book ______, Page _______, Orange County Registry; 3. Deed of Easement recorded in Book _____, Page _____, Orange Country Registry (access only); 4. Matters shown on plat recorded in Plat Book 59, Page 26, Orange County Registry (access only); 5. Rights of way recorded in Book 1731, Page 285 and Book 2038, Page 84, Orange County Registry (access only); and 6. Sewer easement contained in deed recorded in Book 685, Page 492, Orange County Registry (access only). 27