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HomeMy WebLinkAboutAgenda - 11-18-2003-8gORANGE COUNTY BOAR[) OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 18, 2003 Action Agenda Item No. SUBJECT: Acceptance of Com~ervation Easement Assignment from the Triangle Land Conservancy -Trinity School of Durham and Chapel Hill DEPARTMENT: Environment and Resource Conservation PUBLIC HEARING: (Y/N) No ATTACHMENT A. Location Map B. Property Map C. Conservation Easement D. Conservation Easement Assignment INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2591 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To authorize accepts nce of a conservation easement assignment from the Triangle Land Conservancy for land owned by Trinity School along New Hope Creek, and the subsequent assignment of the easement to the State of North Carolina. BACKGROUND: The Lands Leg;~cy Program, adopted in April 2000, works with landowners and other conservation partners to protect the County's most important natural and cultural resources. Through this program, the County uses a variety of voluntary means to protect lands, including fee-simple acquislition, acceptance of land donations, and purchase or donation of conservation easements. The types of land protected include parkland, natural areas and wildlife habitat, riparian buffers, prime farmland and historic and cultural sites. Since inception, Lands Legacy has protected 860 acres of resource lands in Orange County. ERCD is working with Triangle Land Conservancy (TLC) to acquire riparian lands and conservation easements for an open space corridor along New Hope Creek from the site of the former Hollow Rock Store (Erwin Road) to the Durham County line - a distance of nearly one mile along the creek. This project would link Duke Forest lands in Orange County to New Hope Creek open space in Durham County. The proposed trail will help implement the New Hope Creek Master Plan, ad~~pted in 1989. TLC has negotiated the purchase of a conservation easement on 14.67 acres adjacent to New Hope Creek owned by the Trinity School of Durham and Chapel Hill. The easement will allow future construction of a public pedestrian trail along the creek and nature trails for use by the school for environmental education. TLC will purchase the easement v~ith a grant from the NC Clean Water Management Trust Fund. TLC will assign the easement to Orange County for oversight of a future public walking trail along New Hope CreE;k. Orange County will then assign the conservation easement to the State of North C~~rolina, which will be the ultimate grantee and holder of the easement. Orange County will re:~erve from this conveyance the nonexclusive rights initially acquired by the conservation easement to monitor, observe, access, and enforce the easement for the conservation arn1 recreational purposes allowed therein. On September 16, 2003, the Board of Commissioners adopted a resolution approving Orange County's acceptance of tree conservation easement and authorizing the Chair to sign the easement documents pendinc final review by the County Attorney and staff. The documents have been finalized to the satisfaction of all parties. TLC will close on the conservation easement in early N~~vember and schedule a subsequent closing in late November for assignment of the easement to Orange County and the State of North Carolina. FINANCIAL IMPACT: The Triancile Land Conservancy will purchase the conservation easement and then convey the e~ sement to Orange County. Orange County (ERCD) will assume the task of monitoring the property on an annual basis and helping to enforce the development restrictions. Orange County may need to pay some transaction costs estimated to be less than $1,000, which would be paid from the Lands Legacy Fund. RECOMMENDATION(S): The Manager recommends that the Board authorize the Chair to sign the conservation easement assignment documents. ~~~ z ~` '~0 ~~~~ a ~ o ~ o ~~. 2 a CHAP L ;.~n~ ~ ~i,~ ~,„s~ n a ~6' ~ N c e a~ a ~ ~ °~ j Q; V a ~ ~~ ~ba~kc Rn i C Yr ~q 3 ~k o ~mesteatl Rtl g~ Dai ana Rd .~' X Qa ~ 1 e ~s ~ d 1 ~~ ~~ i NWy 54 ~` ~Ba~m~, N n ~ 07 O~ I s ~''Rc ; ~ i Z oR ~/.J /{ r I /~ ro RL i m a ~ qy e~ ~ ~a 8 A g i ~ ~ C ova c ~ o ~~40 L 4 ~~~~oN MAP i 4 ~7 ~ ~ u 2 ~ Q Q Trinity School Boundary Proposed Conservation Easement (14.86 acres) n Proposed Trail Corridor (100' from stream) Q County [~ Parcel Boundary Streams 2' & 5' Contours P-~~pased Conservation Easement Trinity School Property PIN 0800-09-6887 TMBL 7.16..73 60 0 60120 Feet E,,~.... A County of Orange Environment & Resource Conservation Dept SeptemUer 8, 2003 M Jones Please return to: Guenevere Abernathy, Triangle Land Conservancy, 1101 Haynes Street, Suite 205, Raleigh, NC 27604 STATE OF NORTH CAROLINA ORANGE COiJNTY PIN 0800096887 COUNTY OF ORANGE AND DlJRHAM DURHAM COUNTY PIN 080103104100 Duplicate originals of this instrument are recorded in Orange and Durham Counties. C(NSERVATION EASEMENT THE TRINITY SCHOOL THIS CONSERVATI~©N EASEMENT ("Conservation Easement") is made on this day of 2C 03 by and between TRINITY SCHOOL OF DURHAM AND CHAPEL HILL, INC., a nonprofit corporation organized and existing under the laws of State of North Carolina with an addre ~s at 4011 Pickett Road, Durham, NC 27705 ("Grantor") and TRIANGLE LAND CONSER`"ANCY, a nonprofit corporation organized and existing under the laws of State of North Carol Ina with an address at 1101 Haynes Street, Suite 205, Raleigh, NC 27604 ("Grantee"). RECITALS & CONSERVATION PURPOSES A. Grantor is the sole ow ier in fee simple of the property containing 18.67 acres and being described in Plat Book '32, Page 97, Orange County Registry, and that certain tract containing 18.00 acres and being described on the plat recorded in Plat Book 140, Page 152, Durham County Registry and P Lat Book 80, Page 18, Orange County Registry, which parcel, having a combined acreage of 36.67 acres (hereinafter the "Property") and further described in Exhibit A attached hereto acid by this reference incorporated herein. B. WHEREAS, Grantor artd Grantee have agreed to set aside 14.67 acres of the Property (as described herein below and hereinafter referred to as the "Easement Area"), for the purpose of creating a Conservat ion Easement to preserve, enhance, restore, and maintain the 6 natural features and resources o f the Easement Area, to provide habitat for native plants and animals, to improve and mainta~ n water quality, and to control runoff of sediment (hereinafter the "Conservation Values"). C. The Easement Area is ~3epicted on a survey dated August 22, 2003, entitled "Conservation Easement for tr e State of North Carolina, Clean Water Management Trust Fund and Trinity School of Durham and Chapel Hill", prepared by John R. Mc Adams Company, Inc., recorded in the Orange County Registry on September 10, 2003 and further described in Exhibit B attached hereto and by this reference incorporated herein. D. Grantee is a non-profit organization established for the purpose of promoting the preservation of ecologically valuable lands, natural and wildlife habitat, and lands with significant natural and open s pace values in the State of North Carolina for charitable, scientific, educational and aest etic purposes and will receive and hold this Conservation Easement until at such time it conveys an Assignment of Conservation Easement to the STATE OF NORTH CAROLIr1A, by and through the Clean Water Management Trust Fund, and the same is recorded in the (?range County, North Carolina. E. Grantor and Grantee recognize that the Easement Area is located adjacent to the New Hope Creek and its tributaries, z nd the Easement Area has been deemed by the State of North Carolina to qualify as a riparian buffer, addressing the cleanup and prevention of pollution of the State's surface waters, and the establishment of a network of riparian buffers. Moreover, Grantor and Grantee recognize that the Easement Area has other conservation values including fish and wildlife conservation, open space and scenic values. F. T'he Clean Water Management Trust Fund, ("Fund") with an address at 1651 Mail Service Center, Raleigh, North. Carolina 27699-1651 is an agency of the State of North Carolina ("State"), with an address at c/o State Property Office, 13:21 Mail Service Center, Raleigh, North Carolina 27699-1321, and is authorized by Article 13A, Chapter 113 of the General Statutes of North Carolina to finance projects and to acquire land and interests in land, including conservation easem~;nts for riparian buffers for the purposes of providing environmental protection for surface waters and urban drinking water supplies. G. Grantee has received a pant from the Fund identified as Grant Agreement No.1997B- 009 ("Grant Agreement") for acquisition of a Conservation Easement in consideration of which Grantor has agreed that tr~.e Easement Area will be conserved and managed in a manner that will protect the quality of waters of the New Hope Creek and otherwise promote the public purposes authorized by Article 13A, Chapter 113 of the North Carolina General Statues ("N.C.G.S."). H. The Grantor, Grantee, S tate and Fund (collectively referred to herein as the "Parties") hereto intend that the conservation values of the Easement Area will be preserved and managed pursuant to the terms .md conditions of said Grant Agreement entered into between the Grantee and the Fund on thy 1St day of May 1998, incorporated herein by reference, and available for inspection in the offices of the North Carolina Department of Environment and 6 7 Natural Resources, the Grantor and Fund and according to Land Use Element of the Orange County Comprehensive Plan, adopted September 2, 1981, ("Master Plan") and amendments thereto. The Parties further aclcirowledge and agree that Grantee will accept this Conservation Easement; that the State of No:-th Carolina will be the ultimate Grantee and Holder of this Conservation Easement; and, that Grantor has received consideration for granting this easement to the Grantee and restricting the uses of the Easement Area. I. The Parties acknowledge that the characteristics of the Easement-Area, its current use and state of improvement are described in Exhibit C, which is the appropriate basis for monitoring compliance with thf: objectives of preserving the conservation and water quality values; and that the Exhibit C is not intended to preclude the use of other evidence (e.g. surveys, appraisals) to establis] i the present condition of the Easement Area if there is a controversy over its use. NOW, THEREFORE, v i consideration of the premises and the mutual benefits recited herein, together with other goe d and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, 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, a Deed of Conservation Easement of the nature and character and to the extent Hereinafter set forth in, over, through and across the Easement Area, together with the right to preserve and protect the conservation values thereof as described in the Recitals herein. The purposes of this Conservation Easement are to provide environmental protection for surface waters an~ 1 to protect the wildlife and natural heritage values and it shall be so held, maintained, and u:~ed therefore. It is the further purpose of this Conservation Easement to prevent any use of the Easement Area that will significantly impair or interfere with the preservation of said ~~onservation values. Grantor intends that this Conservation Easement will restrict use of the Easement Area to such activities as are consistent with the conservation values described in the Recitals herein. ARTICLE I. DURATION OF EASEMENT This Conservati~~n 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, age~its and licensees. ARTICLE II. RIGHTS RESERVED TO GRANTOR Grantor reserve,; certain rights accruing from fee simple ownership of the Easement Area, including the sight to engage in or permit others to engage in uses of the Easement Area that are not ina~nsistent with the purpose(s) of this Conservation Easement. All rights reserved by Grantors ~~re reserved for Grantors, their representatives, successors, and assigns, and are considered ':o be consistent with the conservation purposes of this Conservation Easement. The following rights are expressly reserved: 8 A. Passive Recreational Use . The Grantor reserves the right to engage and to allow others to engage in passive recreations uses of the Easement Area, requiring no surface alteration of the land and posing no threat to conservation values, including, without limitation, walking, fishing, or animal and plant ob.ervation; and any other purpose consistent with maintaining the conservation values of this Conservation Easement so long as such activity does not interfere with those activities to be enjoyed by the public at large and set forth by the Master Plan, and amendments thereto. B. New Hope Creek Trail ~.nd Trinityy School Trails. The Grantor covenants and agrees that the Grantee, its successors and assigns, shall have the perpetual and assignable right to construct, operate and maintai a paved or unpaved New Hope Creek Trail within the Easement Area as indicated by the Land Use Element of the Orange County Comprehensive Plan, adopted September 2, 1981, ("Master Plan") and amendments thereto. The Parties agree that all trails must be located in ~,ompliance with both the guidelines of the Fund and aforesaid Master Plan. All trails must be l ~cated at a minimum distance of fifteen (15) feet from the top of the bank of New Hope Creel:, unless such locations are physically impracticable, and in a manner that does not materiall} diminish the wooded, open space character, and scenic and natural qualities of the Easemen t Area as existing on the date of this Conservation Easement. In the construction of New Ho~~e Creek Trail, and when required by the terrain, boardwalks, ramps, handrails, and steps are permitted herein. The Grantee may also construct and maintain park benches, litter receptacles, and traiUfeature signs along New Hope Creek Trail. The Grantor reserves the right to construct and maintain trails for the use of students and faculty of the Trinity School. 'I' a trails must be constructed and located in compliance with both the guidelines of the Funck and aforesaid Master Plan and not materially diminish the wooded, open space character, scenic and natural qualities of the Easement Area as existing on the date of this Conservation Easement. C. Natural Community Restoration. The Grantor covenants and agrees that the Grantee shall have the perpetual right to perform all activities necessary to restore the natural plant and animal communities on the Easement Area. Notwithstanding the foregoin€;, the total cleared, and not re-vegetated, pervious and impervious surface areas associated with all aforesaid improvements, including, but not limited to, the greenway and exttinsion trails, shall not exceed ten (10) percent of the total area of the Easement Area. The Grantor and the Grantee shall have the right and duty to maintain the Easement Area in a clean, natural and undisturbed state, consistent the terms of this Conservation Easement and all ;applicable land use regulations, and other applicable laws and ordinances. Furthermore, Grar. for and Grantee have no right to agree to any activity that would result in the termination o f this Conservation Easement. 8 9 ARTICLE III. PRCIHIBITED AND RESTRICTED ACTIVITIES Any activity on, or use ~~f, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural, scenic, wooded and open condition and restricted from any development or use that would impair or interfere with the conservation purposes of this Conservation Easement set forth above. 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. A. Industrial and Commercial Use. Industrial and commercial activities and any right of passage for such purposes are prohibited on the Easement Area. B. A~a-icultural, Timber Harvesting, Grazing and Horticultural Use. Agriculture, timber harvesting, grazing, horticultural and animal husbandry operations are prohibited on the Easement Area. C. Disturbance of Natural Features, Plants and Animals. There shall be no cutting or removal of trees, or the disturbance of other natural features within the Easement Area except for the following: (1) as incidental to boundary marking, fencing, signage, (2) selective cutting and prescribed burning or clearing of vegetation and the application of mutually approved pesticides for fire containment and protection, disease control, restoration of hydrology, wetlar~.ds enhancement and/or control ofnon-native plants; subject however, to the prior approval of Fund, and (3) fishing pursuant to applicable rules and regulations. D. Construction o f Buildings and Recreational Use., There shall be no constructing or placing of any b~~ilding, 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 or above the Easement Area except for the following: the constnuction and maintenance of New Hope Creek Trail, the construction and maintenance of Trinity School Trails, placement and display of no trespassing signs, local, state or federal traffic or similar informational signs, for sale or lease signs, boundary fencing, signs identifying the conservation values of the Easement Area, and/or signs identifying the Grantor as owner of the Property and State as holders of this Conservation Easement and Fund as the source of funding for the acquisition of the Conservation Easement, educational and interpretative signs, identification labels or any other similar temporary or permanent signs, reasonably satisfactory to the Fund. 9 10 E. Mineral Use, E:~cavation, Dredging. 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 for the purpose of combating ero~ ion or incidental to any conservation management or trail construction and maintenance activities otherwise permitted in the Easement Area. F. Wetlands and W Ater uali .There shall be no pollution or alteration of water bodies and no activities that would be detrimental to water purity or that would alter natural water levels, drainage, sedimentation and/or flow in or over the Easement Area or into any surface waters, or cause soil del~adation or erosion nor diking, dredging, alteration, draining, filling or removal of wetlands except activities to restore natural hydrology or wetlands enhancement as pemutted by state and any other appropriate authorities. G. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances, or machinery, or othr~r materials on the Easement Area is prohibited. H. Conveyance an3 Subdivision. The Property may not be subdivided, partitioned nor conveyed, except in its current configuration as an entity or block of property. I. Miti ag tion. There shall be no use of the Easement Area or any portion thereof to satisfy compensatory mitigation requirement under 33 U.S.C. Section 1344 or N.C.G.S. 143-214.11. ARTICLE TV. ENFORCEMENT AND REMEDIES A. Enforcement. To accomplish the purposes of this Conservation Easement, Grantee is allowed to prevent any activity on or use of the Easement Area that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Easement Area that may 17 ave been damaged by such activity or use. Upon any breach of the terms of this Conservation. Easement by Grantor that comes to fhe attention of the Grantee, the Grantee shall, except as provided below, notify the Grantor in writing of such breach. The Grantor shall have c ne hundred twenty (120) days after receipt of such notice to correct the conditions constitutin g such breach. If the breach remains uncured after one hundred twenty (120) days, the Grantee may enforce this Conservation Easement by appropriate legal proceedings including damages, injunctive and other relief. The Grantee shall also have the power and authority, consistent with its statutory authority: (a) to prevent any impairment of the Easement Area by acts which maybe unlawful or in violation of this Conservation Easement; (b) to o'~herwise preserve or protect its interest in the Easement Area; or (c) to seek damages from any appropriate person or entity. Notwithstanding the foregoing, the Grantee reserves the immedi~~te right, without notice, to obtain a temporary restraining order, injunctive or other appropriate relief if the breach of the term of this Conservation Easement is or would irreversibl y or otherwise materially impair the benefits to be derived from this Conservation Easement. The Grantor and Grantee acknowledge that under such circumstances damage to the Gr~intee would be irreparable and remedies at law will be inadequate. The rights and remedies of the Grantee provided hereunder shall be in addition to, 10 11 and not in lieu of, all other right: and remedies available to Grantee in connection with this Conservation Easement, includvig, without limitation, those set forth in the Grant Agreement under which this Conservation F asement was obtained. B. Right of Entry and Inspection. Grantee, its employees and agents and its successors and assigns, have the right, with reas enable notice, to enter the Property and Easement Area at reasonable times for the purpose of inspecting the Easement Area to determine whether the Grantor, Grantor's representatives, or assigns are complying with the terms, conditions and restrictions of this Conservation Easement. Grantor permits Grantee access to the Easement Area over the Grantee's existing owned property from Pickett Road (PIN 0801-03-10-4100), further described in Deed Book i )02488 Page 000813 Plat Book 000140 Page 000152, recorded in the Durham County Registry) and over the portions of the Property, further described in Book 1852, Page 237, recorded in the Orange County Registry, not covered by this Conservation Easement for the purposes of constructing, operating and maintaining the aforesaid New Hope Creek trail. C. Changed Conditions. The grant or donation of this Conservation Easement gives rise to a property right immediatel.,~ vested in Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Property as a whole. That proportionate value of Grantee's property rights shall remain constant. If a change in conditions occurs, which makes impossible or impractical any continued protection of the Property for conservatic>n purposes, the restrictions contained herein may only be extinguished by judicial proceeding. Upon such proceedings, such portion shall be equal to the proportionate value that Grantees', its successors' and assigns', interest in the Easement Area bears to the value of the Property as a whole as of the date of the recording of this Conservation Easement. "Proceeds of Sale" shall mean the cash value of all money and property paid, tr~.nsfen:ed or contributed in consideration for, or as otherwise required as a condition to the sale, exchange or involuntary conversion of the Conservation Area, or any damages otherwise awarded as a result of judicial proceeding, minus the Grantor's expenses from such transaction or proceeding. Grantee, its successors and assigns, shall use its share of the proceeds of sale in a manner consistent with the conservation purposes set forth herein. D. Condemnation. Whenever all or part of the Property is taken by exercise of eminent domain by public, corporate or other authority, or by negotiated sale in lieu of condemnation, so as to abrogate the restrictions imposed by this Conservation Easement, the Grantor shall immediately give notice to Grantee, State and the Fund, and shall take all appropriate actions at the time of such taking or sa e to recover the full value of the taking and all incidental or direct damages resulting from tl~e taking, which any proceeds recovered in such actions shall be divided in accordance with the proportionate value of Grantor's and Grantee's interests as specified herein; all expenses including attorneys' fees incurred by Grantor and Grantee in such action shall be paid our of the recovered proceeds to the extent not paid by the condemning authority. 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 jwiicial proceeding. Such portion shall be equal to the 11 12 proportionate value that Grantees', its successors' and assigns' interest in the Easement Area bears to the value of the Property as a whole as of the date of the recording of this Conservation Easement. "Pro~yeeds 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 Conservation Area, or any damages otherwise awarded as a result of judicial proceeding, minus the Grantor's expenses from such transaction or proceeding.. Grantee, its successors and assigns, shall use its share of the proceeds of sale in a manner consistent with the conservation purposes set forth herein. E. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Gratrtee to bring any action against Grantor for any injury or change in the Easement Area ca~rsed by third parties, resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm, and. earth movement, or from any prudent action taken in good faith by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to Easement Area or harm to the Easement Area resulting from such causes. F. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Conservation Easement against Grantor in the case where the Grantor is found in violation of the terms of this Conservation E asement, including, without limitation, any costs of restoration necessitated by Grantor's acts ~r omissions in violation of the terms of this Conservation Easement, shall be borne by Grantor. G. No Waiver. Enforceme~rt 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 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. ARTICLE V. DOCUMENTATION AND TITLE A. Easement Area Condition. The parties acknowledge that the Easement Area is undeveloped, with no improvements other than as described in Exhibit C and easements and rights of way of record. B. Title. The Grantor covenants and represents that the Grantor is the sole owner and is seized of the Easement area in fee simple and has good right to grant and convey the aforesaid Conservation Easement; that there is legal access to the Property and the Easement Area, that the Easement Area is free and clear of any and all encumbrances, except easements of record, none of which would nullify, impair or limit in any way the terms or effect of this Conservation Easement; GrantDr shall defend its title against the claims of all persons whomsoever, and Grantor covenants that the Grantee, its successors and assigns, shall have the right to monitor and defend the terms of the aforesaid Conservation Easement. 12 13 AR:CICLE VI. MISCELLANEOUS A. Subsequent Tra,tsfers of the Fee. Grantor agrees for itself, its successors and assigns, that in the event it transfers the Property, or any portion thereof, which includes the Easement Area described herein i, to notify the Grantee and the State in writing of the names and addresses of any party to whom the Property is to be transferred at or prior to the time said transfer is consummated. Granter, 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 or Easement Area is conveyed according to Article III.H. herein. B. Subsequent Transfers of the Conservation Easement. The Parties hereto recognize and agree that the benefits of this Conservation Easement are in gross and assignable. 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 "Intemal Revenue Code") which is organized or operated primarily for one of the conservation purposes specified in Section 170(h)(4)(A) of the Internal Revenue Code. The P~uties 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 conservation purposes that the contribution was originally intended to advance as set forth in the Recitals herein. Grantee, its successors or assigns, hereby covenants and agrees to monitor and observe the Easement Area in perpetuity for such purposes set forth by this Cons~;rvation Easement and Grant Agreement, and to report to the Fund and the State any observed. violations on the Easement Area. C. Existing Respo zsibilities 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, which includes the Easement Area. 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 Easement A~•ea, the Grantor will reimburse the Grantee for the same. 2. Upkeep anal. Maintenance. The Grantor shall continue to be solely responsible _ or the upkeep and maintenance of the Easement Area, to the extent it mar be required by law, except for that certain area defined as the New Hope ('reek trail and that portion of the property located between the top of the b; uilc of New Hope Creek and said trail, which is constructed, maintained and operated under the said Master Plan. The Grantee shall have no oth~:r obligation for the upkeep or maintenance of the Easement Area. 13 14 3. Liability and, Indemnification. Grantee, its assigns and successors, shall, to the extent permitted by law, indemnify and hold Grantors harmless from any li~~bility, damage, loss, cost or expense, including reasonable attorney fees, for personal injury or property damage (including damage to the Easement Area) to Grantors or any third party, resulting in any manner from Granter,'s exercise of any of its rights hereunder, except to the extent the liability, damage, loss, cost or expense arises from the negligence or willful miscc-nduct of Grantor. However, the State of North Carolina as an assignee of Grantee's interest in this Conservation Easement shall be held harmless frc»m any liability, damage, loss, cost or expense, including reasonable atorney fees, for personal injury or property damage, unless the State of North Carolina has committed a deliberate act that is detemuned to be the sole; cause of the injury or damage. D. Conservation Purxr ose. 1. Grantor and Grantee, for itself, its successors and assigns, agrees that this Conservation Easement shall be held exclusively for conservation purposes set forth by the Grant Agreement, this Conservation Easement and as specii red in Section 170(h)(4)(A). 2. The Parties recognize and agree that the proposed New Hope Creek Greenway le Gated within the Easement Area will be open for public entry and use, and shall be open to entry and use equally by all persons, regardless of"race, color, creed, national origin, or residence, subject to reasonable published and posted rules governing use of the Easement Area by the Grant ae, its successors and assigns, as approved by the Fund, and consistent w ith the conservation purposes provided by this Conservation Easement. 3. This Conser/ation Easement shall be construed to promote the purposes of the North C~~rolina enabling statute set forth in N.C.G.S. 121-34 et ~. which autho-sizes the creation of Conservation Easements for purposes including those set forth in the Recitals herein, and the conservation purposes of ~ his Conservation Easement, including such purposes as are defined in S~ motion 170(h)(4)(A) of the Internal Revenue Code. E. Recording. Gra itee shall record this instrument and any amendment hereto in timely fashion in the official records of Orange and Durham Counties, North Carolina, and may re-record it at any time as n xay be required to preserve Grantee's rights. F. Notices. All notices, requests or other communications permitted or required by this Agreement shall be sent by registered or certified mail, return receipt requested, addressed to the parties ~s set fc rth above, or to such other addresses such party may establish in writing to the other. All surh items shall be deemed given or made three (3) days after being placed in the United States mail as herein provided. In any case where the terms of this Conservation Easement require the consent of any party, such consent shall be requested by written notice. Such consent ~ hall be deemed denied unless, within ninety (90) days after 14 15 receipt of notice, a written notice of approval and the reason therefore has been mailed to the party requesting consent. G. Amendments. Grantor and Grantee are free to jointly amend this Conservation Easement to meet changing conditions, provided that. no amendment will be allowed that is inconsistent with the purposes of this Conservation Easement or affects the perpetual duration of this Con:;ervation Easement. Such amendment(s) require the written consent of both Grantor and Grantee and shall be effective upon recording in the public records of Orange and Durham, Forth Carolina. H. Environmental Condition of Easement Area. The Grantor warrants, represents and covenants to the Grantee that to the best of its knowledge after appropriate inquiry and investigation that: (a) the Easement Area described herein is and at all times hereafter will continue to be in full compliat-ce with all federal, state and local environmental laws and regulations, and (b) as of the dare hereof there are no hazardous materials, substances, wastes, or environmentally regulated substances (including, without limitation, any materials containing asbestos) located on, in or under the Easement Area or used in connection therewith, and that there is no environmental condition existing on the Easement Area that may prohibit or impede use of tl~e Easement Area for the purposes set forth in the Recitals and the Grantor will not allow such uses or conditions. I. 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 o f such provision to persons or circumstances other than those as to which it is found to be inv~ lid, shall not be affected thereby. The party (ies) hereto intend this document to be an instrument executed under seal. If any party is an individual, partnership or limited liability cc>mpany, such party hereby adopts the word "SEAL" following his/her signature and the name of the partnership or limited liability company ashis/her/its legal seal. The Recitals set forth above and the Exhibits attached hereto are incorporated herein by reference. J. Indemni The State of North Carolina as an assignee of Grantee's interest in this Conservation Easement sl- all be held harmless from and against all claims, actions, liabilities, damages, fines, penall ies, 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, waste or other regulated material in, on or under the property. K. Interpretation. This Conservation Easement shall be construed and interpreted under the laws of the State of North Carolina, and any ambiguities herein shall be resolved so as to give maximum effect to the, conservation purposes sought to be protected herein. 15 16 L. Parties. Every provision of this Conservation Easement that applies to the Grantors or to the Grantee shall likewise apply to their respective heirs, executors, administrators, assigns, and grantees, and all other successors in interest herein. M. Merger. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee an 3 easement interest in the Property and Easement Area. N. SubsecLuent Lie~is. No provisions of this Conservation Easement shall be construed as impairing the ability of Grantors to use this Easement Area for collateral for borrowing purposes, provided that any mortgage or lien arising therefrom shall be subordinated to this Conservatic n Easement. TO HAVE AND TO HI )LD unto GRANTEE, its successors and assigns, forever. The covenants agreed to and the teens, conditions, restrictions and purposes imposed as aforesaid shall be binding upon Grantor, Grantor's representatives, successors and assigns, and shall continue as a servitude running i n perpetuity with the Easement Area. [Remainder of page is intentionally left blank. Signature page follows.] 16 17 IN WITNESS WHERF OF, Grantor has caused this instrument to be signed in its corporate name by its duly auth~ prized officers and its seal to be hereunto affixed by authority of its Board of Directors, the da} and year first above written. GRANTOR: Trinity School of Durham and C hapel Hill, Inc. By: STATE OF NORTH CAROLIl~IA COUNTY OF _ I, , a Notary Public for said County and State, do hereby certify that _ _ personally appeared before me this day and aclrnowledged that (s)he is the -[title] of Trinity School of Durham and Chapel Hill, Inc., a North Carolina nonprofit corporation, and that (s)he, as [title], being authorized to do so, executed and sealed the foregoing on behalf of the corporation. WITNESS my hand and official stamp or seal, this day of , 2003. Notary Public My Commission Expires: [Notarial Seal] 18 STATE OF NORTH CAROLIl~~A COUNTY OF ORANGE The foregoing certificate of _ ,Notary Public, is certified to be correct. This day of , 2003. Register of Deeds This instrument prepared by Clean Water Management Trust Fund (ATTN: Lana Armstrong) and by Guenevere Abernathy, T:-iangle Land Conservancy. 18 19 F.XAiRiT A The "PROPERTY" BEING ALL OF THAT PARCEL OF LAND comprised of that certain tract containing 18.67 acres and being described as "New Lot Area in Orange County " on the plat recorded in Plat Book 82, Page 97, Orange County Registry (Orange County PIN 0800-09-6887), and that certain tract containing 18.00 acres and being described as "New Lot Area (Durham County)" on the pl~.t recorded in Plat Book 140, Page 152, Durham County Registry and Plat Book 80, Pa;e 18, Orange County Registry (Durham County PIN 0801- 03-10-4100), which parcel, having a combined acreage of 36.67 acres, is further referred to for the purposes of this Conservation Easement as the "Property". See also that survey recorded in Plat Book 93, Page O1, Orange County Registry. 19 20 F.XHiRiT R The "EASEMENT AREA" BEING ALL OF THAT CERTAIl~T AREA OF LAND DEPICTED AS THE CONSERVATION EASEMENT CONTAINING 14.67 ACRES, more or less as shown on a survey entitled "Conservation E. ~sement for the State of North Carolina, Clean Water Management Trust Fund and Trinity School of Durham and Chapel Hill" dated August 22, 2003, prepared by The John R. McAdams Company, Inc. and recorded on September 10, 2003 in Plat Book 93, Page O1, I h'ange County Registry, Hillsborough, North Carolina. Together with the right of ingres s, egress and regress over, upon and across the Property to and from the Easement Area. The Easement Area is accessed from Pickett Road which provides access to the Property, a portion of which is located in Durham County, identified as PIN 0801-03-10-4100, and being further described in Deed Book 2488, Page 813 as shown by that certain survey recorded in Plat Book 140, Pa;e 152, Durham County Registry, Durham, North Carolina and a portion of which is located in Orange County, PIN 0800-09-6887, further described in Deed Book1852, Page 237 and illustrated in Plat Book 82, Page 97, Orange County Registry. 20 21 EXHIBIT C The Property is located adjacent to New Hope Creek in Orange County. The Properly contains 18.67 acres, 14.67 acres of which is considered under this Conservation Easement. The Property contains no structures. One of the purposes for protectir~.g this Property is to provide a 300-foot water quality buffer on New Hope Creek and to provide pedestrian access reserved for the placement of future trails as part of the future New H ope Creek Trail. A proposed trail system will traverse the property and will run along New Hope Creek. This buffer is intended to remain in natural condition. This easement is intended to preserve, enhance, restore, and maintain the natural features and resources of the Property, to pro~~ide habitat for native plants and animals, to improve and maintain water quality, and to cc ntrol runoff of sediment. The Easement Area is a signific~mt natural area that qualifies in its present condition as a "...relatively natural habitat of fi:~h, wildlife, or plants, or similar ecosystem," as that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in regulations promulgated thereunder. Specifically, the Eas~wment Area is habitat for a variety of native plants and animals described for this area o ri Pages 176-180 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina, written by Dawson Sather and Stephen Hall and conducted for the Triangle Land Conservancy in coordination with the North Carolina Natural Heritage Progr~tn in December 1988. The native plants and animals known to exist in this river corridor include white oak, red oak, beech, mountain holly, red-shouldered hawk, green-backed heron, green snake, pickerel frog and the dwarf waterdog. The Easement Area provides lard area for outdoor recreation by, or the education of, the students and members of the fac ulty of Trinity School and the general public, specifically the trail corridor along New Hope C reek, which is expected to receive heavy recreational use by the citizens of both Orange and Durham counties. The Easement Area includes land within the New Hope Creek riparian comdor, which has been recognized by Orange County as having significance as a wildlife corridor and is identified on Pages 2.2-41 of the Land Use Element of the Orange County Comprehensive Plan as the Korstian Division/Di ilce Forest section of the New Hope Creek Refuge System. It is a primary purpose of this Easement to protect the undeveloped nature of the Grantors' Property and, in doing so, helping to protect the natural area and wildlife habitat associated with this area. 22 Return this document to Guenevere Abernathy, Triangle Land Conservancy, 1101 Haynes Street, Suite 205, Raleigh, NC 27604. ASSIGNMEN7C OF CONSERVATION EASEMENT STATE OF NORTH CAROLIN A COUNTY OF ORANGE COUNTY OF DURHAM PIN: ORANGE COUNTY PIN )800096887 DURHAM COUNTY PIN 080103104100 THIS ASSIGNMENT OF CI)NSERVATION EASEMENT ("Assignment") is made on the day of November 2003, by and between Triangle Land Conservancy ("Assignor"), a North Carolina nonprofit corporation, with an address at 1101 Haynes Street, Suite 205, Raleigh, NC 27604 to and in favor of the ORANGE COUNTY, NORTH CAROLINA ("County"), a body politic and corporate, a political subdivision of the State of North Carolina, with a mailing address of P.O. Box 8181, Hillsbo:-ough, North Carolina 27278. WITNESSETH WHEREAS, Assignor and the STATE OF NORTH CAROLINA, ("State") State Property Office, Department of Administration, 1321 Mail Service Center, Raleigh, North Carolina 27699-1321 acting by and through the NORTH CAROLINA CLEAN WATER MANAGEMENT TRUST FUNII ("Fund"), 1651 Mail Service Center, Raleigh, North Carolina 27699-1651 have entered into a Grant Agreement identified as Grant Agreement No.1997B-009 providing for the acquisition of a Conservation Easement over property identified as the "Trinity School of Durham ~tnd Chapel Hill" and more particularly described in Exhibit A attached hereto and by this referen~~e incorporated herein (the "Easement Area") with financial assistance being provided by Fund; and WHEREAS, pursuant to saic. Grant Agreement, Assignor has acquired a Conservation Easement, over the Easement Area; and 23 WHEREAS, in furtherance of the terms and conditions of the Grant Agreement, the Assignor desires to assign its right, title, ,end interest in said Conservation Easement to County, and County has agreed to this Assignment. NOW, THEREFORE, in consideration of grant monies paid by Fund to Assignor; the mutual benefits accruing to State, Assignor, and the public from the Conservation Easement herein referenced and assigned, ~ nd other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, Assignor hereby conveys and assigns to County, all the right, title, easement, privilege and interest (and subject to all conditions contained therein), in that certain Conservation Easement conveyed to Assignor by Trinity School of Durham and Chapel Hill dated the day 2003, and recorded in Deed Book Page, ,Orange County Register of Deeds, Orange County, North Carolina and recorded in Deed Book ,Page, Durham County Register of Deeds, Durham County, North Carolina . TO HAVE AND TO HOLTM the said right, privilege and easement herein granted and assigned to Orange County, North Carolina its successors and assigns in perpetuity. AND THE ASSIGNOR covenants that it is properly vested with the Conservation Easement; has the right to assign the same to County; that said Conservation Easement is free from encumbrances, except as may bey expressly excepted to by the terms and conditions of the Conservation Easement; and that Assignor will warrant and defend title to the same against the claims of all persons whomsoever. IN WITNESS WHEREOF, Triangle Land Conservancy, has executed the foregoing in its corporate name, under seal, and s~ gned by Elizabeth Rooks, President with proper authorization by Board of Directors of Assignor.. the date and year first above written. ASSIGNOR: Triangle Land Conservancy BY: Elizabeth Rooks, President STATE OF NORTH CAROLINA COUNTY [CORPORATE SEAL] I, , a Notary Public of the County and State aforesaid, hereby certify that Elizabeth Rooks of the Triangle Land Conservancy, personally appeared before me This day and acknowledged the execution of the foregoing instrument. 24 WITNESS my hand and oi'ficial stamp or seal, this day of November 2003. My Commission Expires: Notary Public This instrument prepared for C Lean Water Management Trust Fund (Attn: L. Armstrong, CWMTF) by Guenevere Abernathy. 25 EXHIBIT A "THE EASEMENT AREA" BEING ALL OF THAT CERTAIN AREA OF LAND DEPICTED AS THE CONSERVATION EASEMENT CONTAINING 14.67 ACRES, more or less as shown on a survey entitled "Conservation Easement for the State of North Carolina, Clean Water Management Trust Fund and Trinity School of Durham and Chapel Hill" dated August 22, 2003, prepared by The John R. McAdams Company, Inc. and recorded on September 10, 2003 in Plat Book 93, Page O1, Orange County Registry, Hillsborough, North Carolina. Together with the right of ingress, egress and regress over, upon and across the Property to and from the Easement Area. The Easement Area is accessed from Pickett Road which provides access to the Property, a portion of which is located in Durham County, identified as PIN 0801-03-10-4100, and being further described in Deed Book 002488, .Page 000813 as shown by that certain survey recorded in Plat Book 000140, Page 000152, Durham County Registry, Durham, North Carolina and located in Orange Count, PIN 0800096887, further described in Deed Book 1852, Page 237 illustrated in Plat Book 82, Page 97, located in the Orange County Registry. 26 Mail after recording to: Gueneverc Abernathy, Triangle Land Conservancy 1101 Haynes Street, Suite 205, Raleigh, NC 27604 Instrument prepared for Clean Water Management Trust Fund by Lana Armstrong and Guenevere Abernathy PIN: ORANGE COUNTY PIN 0800096887 DURHAM COUNTY PIN 080103104100 STATE OF NORTH CAROLIl`lA ASSIGNMENT OF CONSERVATION EASEMENT COUNTY OF ORANGE COUNTY OF DURHAM THIS ASSIGNMENT OF CONSERVATION EASEMENT ("Assignment") is made on the day of 2003 by and between ORANGE COUNTY, NORTH CAROLINA ("County" or "Assi;;nor") a body politic and corporate, a political subdivision of the State of North Carolina, with a mailing address of P.O. Box 8181, Hillsborough, North Carolina 27278, to and in favor of the STATE OF NORTH CAROLINA, ("State") State Property Office, Department of Administration, 1321 Mail Service Center, Raleigh, North Carolina 27699-1321 acting by and through the NORTH CAROLINA CLEAN WATER MANAGEMENT TRUST FUNI) ("Fund"), 1651 Mail Service Center, Raleigh, North Carolina 27699-1651. WITNESSETH: WHEREAS, Triangle Land Conservancy, a North Carolina non-profit corporation and the Fund have entered into a Grant Agreement identified as Grant Agreement No.1997B-009 and dated the 1sT day of May1998, providing for the purchase of a Conservation Easement over property identified as the "The Tri;zity School Tract" and more particularly described in Exhibit A attached hereto and by this reference incorporated herein (the "Easement Area") with financial assistance being provided by the Fund. 26 27 WHEREAS, pursuant to s yid Grant Agreement, Triangle Land Conservancy has acquired a Conservation Easement over the Easement Area, which is depicted and described on the plat recorded at Plat Book 93, F'age O1 of the Orange County Registry, Hillsborough, North Carolina. WHEREAS, in furtherance of the terms and conditions of the Grant Agreement, County desires to assign its right, title, and interest in the Conservation Easement to State, and State has agreed to this Assignment. NOW, THEREFORE, in consideration of grant monies paid by Fund to Triangle Land Conservancy; the mutual benefits accruing to State, Assignor, and the public from the Conservation Easement herein reff;renced and assigned, and other good and valuable consideration, the receipt and suffi ciency of which are herein acknowledged, County hereby conveys and assigns to the State oi'North Carolina, acting by and through the North Carolina Clean Water Management Trust F~znd, all the right, title, easement, privilege, interest, (and subject to all conditions therein contained), in that certain Conservation Easement conveyed to Triangle Land Conservancy by (Trinity School of Durham and Chapel Hill) dated the day of 2003 and recorded in Deed Book Page, ,Orange County Registry, and recorded in Deed Bc ok ,Page_ 1 Durham County Registry= which said Conservation Easement was subsequently assigned to County by instrument recorded in Deed Book ,Page ,Orange County Registry and recorded in Deed Book , Page_ ,Durham County Registry. However, County hereby expressly reserves from this conveyance the nonexclusivE~ rights initially acquired by the Conservation Easement to monitor, observe, access, and enforce the Conservation Easement for such purposes as described in said Conservation Easement and Grant Agreement. TO HAVE AND TO HOLD the said right, privilege and easement herein granted and assigned to the State of North Car«lina, its successors and assigns in perpetuity. AND THE ASSIGNOR c~wenants that it is properly vested with the Conservation Easement; has the right to assign t]ie same to the State; that the Easement Area is free from encumbrances, except as may be expressly excepted to by the terms and conditions of the Conservation Easement; and that t ~1e Assignor will warrant and defend title to the same against the claims of all persons whomsoever. [THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK. THE SIGNATURE PAGE FOLLOWS] 27 28 IN WITNESS WHEREOF, ORANGE COUNTY, has executed the foregoing in its name, signed by the chair of its Board of Commissioners with proper authorization by its Board of Commissioners, the date and year first above written. ORANGE COUNTY, NORTH CAROLINA By: Margaret W. Brown, Chair Orange County Board of Commissioners ATTEST: Donna S. Baker Clerk to the Board of Commissioners 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 C aunty, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal, this the day of , 20 Notary Public My commission expires: [Notarial Seal] 28 29 STATE OF NORTH CAROLINA COUNTY OF ORANGE The foregoing certificate of be correct. This day of , 2003. Register of Deeds Notary Public, is certified to 29 30 EXHIBIT A The "EASEMENT AREA" BEING ALL OF THAT CERTAIN AREA OF LAND DEPICTED AS THE CONSERVATION EASEMENT CONTAINING 14.67 ACRES, more or less as shown on a survey entitled "Conservation Easement for the State of North Carolina, Clean Water Management Trust Fund and Trinity School of Durham and Chapel Hill" dated August 22, 2003, prepared by The John R. McAdams Company, Inc. and recorded on September 10, 2003 in Plat Book 93, Page O1, Orange County Registry, Hillsborough, Noah Carolina. Together with the right of ingress, egress and regress over, upon and across the Property to and from the Easement Area. The Easement Area is accessed fror l Pickett Road which provides access to the Property, a portion of which is located in Durham County, identified as PIN 0801-03-10-4100, and being further described in Deed Book 2488, Page 813 as shown by that certain survey recorded in Plat Book 140, Page 152, Durham County Registry, Durham, North Carolina and a portion of which is located in Orange County, PIN 0800-09-6887, further described in Deed Book1852, Page 237 and illustrated in Plat Book 82, PaSe 97, Orange County Registry. 30