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HomeMy WebLinkAboutAgenda - 11-18-2003-8hORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 18, 2003 Action Agenda Item No. 8- A. SUBJECT: Acceptance of Conservation Easement Assignment from the Triangle Land Conservancy — Jeffrey and Angela Fisher DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y /N) No Conservation ATTACHMENT A. Location Map B. Property Map C. Conservation Easement D. Conservation Easement Assignment (Triangle Land Conservancy to County) E. Conservation Easement Assignment (County to State of NC) 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 acceptance of a conservation easement assignment from the Triangle Land Conservancy for land owned by Jeffrey and Angela Fisher along New Hope Creek, and the subsequent assignment of the easement to the State of North Carolina. BACKGROUND: The Lands Legacy 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 acquisition, 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, adopted in 1989. TLC has negotiated the purchase of a conservation easement on 1.17 acres of a 1.64 -acre lot recently purchased by Jeff and Angela Fisher and the site of the former Hollow Rock Store. The easement will allow future construction of a pedestrian trail for public use along New Hope Creek and a connector trail for private use by the landowners. TLC will purchase the easement with 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 Creek. Orange County will then assign the conservation easement to the State of North Carolina, which will be the ultimate grantee and holder of the easement. Orange County will reserve from this conveyance the nonexclusive rights initially acquired by the conservation easement to monitor, observe, access, and enforce the easement for the conservation and recreational purposes allowed therein. On September 16, 2003, the Board of Commissioners adopted a resolution approving Orange County's acceptance of the conservation easement and authorizing the Chair to sign the easement documents pending 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 November 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 Triangle Land Conservancy will purchase the conservation easement and then convey the easement 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: The Manager recommends that the Board authorize a) the acceptance of the conservation easement assignment from the Triangle Land Conservancy, b) the assignment of the conservation easement to the State of North Carolina, and c) the Chair and Clerk to sign the conservation easement assignment documents. �0 n - 5 rn o� 10 ------------------------------ --------------------------- --- NeNa � S AM 1 U I uivw� 3 Q 54 , CP 8 CdC4- 7-/OA, M�� / 'fl9�P �OYr�f�dTl�:'1 �®i,CC�diOP -017` yF Brown / Fisher Property E=v Proposed Conservation Easement (1.2 acres) Proposed Trail Corridor Streams i� Parcel Boundary 5' Contours 26a Proposed Conservation Easement Brown / Fisher Property PIN 9891 -91 -6210 TMBL 7.16..22 Coun o Oan9e EnY,ronment 8 Resource R Conservation o[panmant 40 0 40 80 Feet M. J� IWO Please return to: Guenevere Abernathy, Triangle Land Conservancy, 1101 Haynes Street, Suite 205, Raleigh, NC 27604 STATE OF NORTH CAROLINA PIN NO. 9891916210 COUNTY OF ORANGE CONSERVATION EASEMENT THE FISHER TRACT THIS CONSERVATION EASEMENT ( "Conservation Easement ") is made on this day of 2003 by and between Jeffrey Fisher and Angela Fisher, husband and wife, with an address at , NC ( "Grantor ") and Triangle Land Conservancy, a nonprofit corporation organized and existing under the laws of State of North Carolina with an address at 1101 Haynes Street, Suite 205, Raleigh, NC 27604 ( "Grantee "). RECITALS & CONSERVATION PURPOSES A. Grantor is the sole owner in fee simple of the property containing 1.64 acres more or less, located in Chapel Hill Township, Orange County, North Carolina, and more particularly described in an instrument recorded in Book 916, Page 64, Orange County Registry (hereinafter the "Property ") and further described in Exhibit A attached hereto and by this reference incorporated herein. B. WHEREAS, Grantor and Grantee have agreed to set aside 1.17 acres of the Property (as described herein below and hereinafter referred to as the "Easement Area "), for the purpose of creating a Conservation Easement to preserve, enhance, restore, and maintain the natural features and resources of the Easement Area, to provide habitat.for native plants and animals, to improve and maintain water quality, and to control runoff of sediment (hereinafter the "Conservation Values "). 9 C. The Easement Area is depicted on a survey dated October 24, 2003, entitled "Conservation Easement for the State of North Carolina, Clean Water Management Trust Fund and Rebecca Hall Brown ", prepared by John R. Mc Adams, Inc. recorded in the Orange County Registry October 24, 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 space values in the State of North Carolina for charitable, scientific, educational and aesthetic purposes at such time it conveys an Assignment of Conservation Easement to the STATE OF NORTH CAROLINA, by and through the Clean Water Management Trust Fund, and the same is recorded in the Orange County, North Carolina. E. Grantor and Grantee recognize that the Easement Area is located adjacent to the New Hope Creek and its tributaries, and 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. The 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, 1321 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 easements for riparian buffers for the purposes of providing environmental protection for surface waters and urban drinking water supplies. G. Grantee has received a grant from the Fund identified as Grant Agreement No. 199713-009 ("Grant Agreement ") for acquisition of a Conservation Easement in consideration of which, Grantor has agreed that the 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, State 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 and conditions of said Grant Agreement entered into between the Grantee and the Fund on the IS` day of May 1998, incorporated herein by reference, and available for inspection in the offices of the North Carolina Department of Environment and Natural Resources, the Grantor and Fund. The Parties further acknowledge and agree that Grantee will accept this Conservation Easement; that the State will be the ultimate Grantee and Holder of this Conservation Easement; and, that Grantor has received 0 7 consideration for granting this easement to the Grantee and restricting the uses of the Easement Area. I. Grantor and Grantee 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 the 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 establish the present condition of the Easement Area if there is a controversy over its use. NOW, THEREFORE, in consideration of the premises and the mutual benefits recited herein, together with other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties 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 and to protect the wildlife and natural heritage values and it shall be so held, maintained, and used 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 conservation 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 Conservation Easement shall be perpetual. It is an easement in gross, runs with the land, and is enforceable by Grantee against Grantor, its representatives, successors, assigns, lessees, agents and licensees. ARTICLE IL RIGHTS RESERVED TO GRANTOR Grantor reserves certain rights accruing fiom fee simple ownership of the Easement Area, including the right to engage in or perrnit others to engage in uses of the Easement Area that are not inconsistent with the pupose(s) of this Conservation Easement. All rights reserved by Grantors are reserved for Grantors, their representatives, successors, and assigns, and are considered to be consistent with the conservation puposes of this Conservation Easement. The following rights are expressly reserved: A. Passive Recreational Use. The Grantor reserves the right to engage and to allow others to engage in passive recreational uses of the Easement Area, requiring no surface alteration of the land and posing no threat to conservation values, including, without 7 limitation, walking, fishing, or animal and plant observation; 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 and Extension Trail. The Grantor covenants and agrees that the Grantee, its successors and assigns, shall have the perpetual and assignable right to construct, operate and maintain 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 compliance with both the guidelines of the Fund and aforesaid Master Plan. The New Hope Creek Trail must be located at a minimum distance of fifteen (15) feet fiom the top of the bank of New Hope Creek, located at a maximum distance of fifty (50) feet from the top of the bank of New Hope Creek, run parallel with the top of the bank of New Hope Creek, and the trail will be no wider than ten (10) feet, unless such locations are physically impracticable, and in a manner that does not materially diminish the wooded, open space character, and scenic and natural qualities of the Easement Area as existing on the date of this Conservation Easement. In the construction of New Hope Creek, 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 trail/feature signs along New Hope Creek Trail. The Grantor reserves the right to construct and maintain an extension trail for accessing New Hope Creek Trail from the Property located outside of the Easement Area. The extension trail must be constructed and located in compliance with both the guidelines of the Fund and aforesaid Master Plan and does 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 the perpetual right to perform all activities necessary to restore the natural plant and animal communities on the Easement Area. Notwithstanding the foregoing, the total cleared, and not re- vegetated, pervious and impervious surface areas associated with all aforesaid improvements, including, but not limited to, the greenway trail, 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, Grantor and Grantee have no right to agree to any activity that would result in the termination of this Conservation Easement. ARTICLE III. PROHIBITED AND RESTRICTED ACTIVITIES Any activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural, scenic, wooded and open condition and restricted from any development or use that would 91 E impair or interfere with the conservation purposes of this Conservation Easement set forth above. Except for those rights specifically reserved to Grantor in Article R 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. Agricultural 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, wetlands enhancement and/or control of non- native plants; subject however, to the prior approval of Fund, and (3) fishing pursuant to applicable rules and regulations. D. Construction of Buildings and Recreational Use. There shall be no constructing or placing of any building, mobile home, asphalt or concrete pavement, billboard or other advertising display, antenna, utility pole, tower, conduit, line, pier landing, dock or any other temporary or permanent structure or facility on or above the Easement Area except for the following: the construction and maintenance of New Hope Creek Trail, the construction and maintenance of the extension trail, 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 Properly and State as holders of this Conservation Easement and Fund as the source of fundnng 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. E. Mineral Use, Excavation, Dredghng. 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 erosion or incidental to any conservation management activities otherwise permitted in the Easement Area. F. Wetlands and Water Quality. 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 9 10 surface waters, or cause soil degradation or erosion nor diking, dredging, alteration, draining, filling or removal of wetlands, except activities to restore natural hydrology or wetlands enhancement as permitted by state and any other appropriate authorities. G. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances, or machinery, or other materials on the Easement Area is prohibited. H. Conveyance and Subdivision. The Property may not be subdivided, partitioned nor conveyed, except in its current configuration as an entity or block of property. I. Mitigation. 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 IV. 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 have been damaged by such activity or use. Upon any breach of the terms of this Conservation Easement by Grantor that comes to the attention of the Grantee, the Grantee shall, except as provided below, notify the Grantor in writing of such breach. The Grantor shall have ninety (90) days after receipt of such notice to correct the conditions constituting such breach. If the breach remains uncured after ninety (90) days, the Grantee may enforce this Conservation Easement by appropriate legal proceedings 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 may be unlawful or in violation of this Conservation Easement; (b) to otherwise 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 immediate 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 irreversibly 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 Grantee would be irreparable and remedies at law will be inadequate. The rights and remedies of the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights and remedies available to Grantee in connection with this Conservation Easement, including, without limitation, those set forth in the Grant Agreement under which this Conservation Easement was obtained. B. Right of Entry and Inspection. Grantee, its employees and agents and its successors and assigns, have the right, with reasonable notice, to enter the 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. However, if direct access to the Easement Area is 10 11 not available, the Grantee, its employees and agents and its successors and assigns, have the right, with reasonable notice, to enter the Property 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. C. Changed Conditions. The grant or donation of this Conservation Easement gives rise to a property right immediately 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 conservation 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, 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 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 sate to recover the full value of the taking and all incidental or direct damages resulting from the 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 judicial proceeding. 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, 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. 11 12 E. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury or change in the Easement Area caused 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 hi 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, including, without limitation, any costs of restoration necessitated by Grantor's acts or omissions in violation of the terms of this Conservation Easement, shall be home by Grantor. G. No Waiver. 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 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 Exbibit 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; Grantor 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. ARTICLE VI. MISCELLANEOUS A. Subsequent Transfers 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, 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. Grantor, for itself, its successors and assigns, further agrees to make specific reference to this Conservation Easement in a separate paragraph of any subsequent 12 13 lease, deed, or other legal instrument by which any interest in the Property or Easement Area is conveyed according to Article IH.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 "Internal 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 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 cant' 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 Conservation Easement and Grant Agreement, and to report to the Fund and the State any observed violations on the Easement Area. C. Existing ReWoonsibilities 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 Area, the Grantor will reimburse the Grantee for the same. (2) Upkeep and Maintenance. The Grantor shall continue to be solely responsible for the upkeep and maintenance of the Easement Area, to the extent it may be required by law, except for that certain area defined as the New Hope Creek trail and that portion of the property located between the top of the bank of New Hope Creek and the New Hope Creek trail, which is constructed, maintained and operated under the said Master Plan. The Grantee shall have no other obligation for the upkeep or maintenance of the Easement Area. (3) Liability and Indemnification. Grantee shall, to the extent permitted by law, indemnify and hold Grantors harmless from any liability, 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 Grantee'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 misconduct of Grantor. However, the State of North Carolina as an assignee of Grantee's interest in this Conservation Easement shall; tp the 13 14 extentpemutted by law; be held harmless from any liability, damage, loss, cost or expense, including reasonable attorney fees, for personal injury or property damage, unless the State of North Carolina has committed a deliberate act that is determined to be the sole cause of the injury or damage. D. Conservation Purpose. (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 specified in Section 170(h)(4)(A) (2) The Parties recognize and agree that the proposed New Hope Creek Trail located 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, residence, `sex or sexual preference subject to reasonable published and posted rules governing use of the Easement Area by the Grantee, its successors and assigns, as approved by the Fund, and consistent with the conservation purposes provided by this Conservation Easement. (3) This Conservation Easement shall be construed to promote the purposes of the North Carolina enabling statute set forth in N.C.G.S. 121 -34 et seq. which authorizes the creation of Conservation Easements for purposes including those set forth in the Recitals herein, and the conservation purposes of this Conservation Easement, including such purposes as are defined in Section 170(h)(4)(A) of the Internal Revenue Code. E. Recording. Grantee shall record this instrument and any amendment hereto in timely fashion in the official records of Orange, North Carolina, and may re- record it at any time as maybe 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 as set forth above, or to such other addresses such party may establish in writing to the other. All such 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 patty, such consent shall be requested by written notice. Such consent shall be deemed denied unless, within ninety (90) days after 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 Conservation Easement. Such amendment(s) require the written 14 15 consent of both Grantor and Grantee and shall be effective upon recording in the public records of Orange County, North 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 compliance with all federal, state and local environmental laws and regulations, and (b) as of the date hereof there are no hazardous materials, substances, wastes, or environmentally regulated substances (including, without limitation, any materials containing asbestos) located on, in or 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 the Easement Area for the purposes set forth in the Recitals and the Grantor will not allow such uses or conditions except for the groundwater contamination further described in Exhibit C. 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 of such provision to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby. The party (ies) hereto intend this document to be au instrument executed under seal. If any party is an individual, partnership or limited liability company, such party hereby adopts the word "SEAL' following his/her signature and the name of the partnership or limited liability company as his/her /its legal seal. The Recitals set forth above and the Exhibits attached hereto are incorporated herein by reference. J. Indemnity. The Grantor agrees to the fullest extent permitted by law, to defend, protect, indemnify and hold harmless Grantee fiom and against all claims, actions, liabilities, damages, fines, penalties, costs and expenses suffered as a direct or indirect result of any violation of any federal, state, or local environmental or land use law or regulation or of the use or presence of hazardous substance, 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. 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 and easement interest in the Property and Easement Area. 15 16 L. Subsequent Liens. 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 Conservation Easement. TO HAVE AND TO HOLD unto GRANTEE, its successors and assigns, forever, the covenants agreed to and the terms, conditions, restrictions and purposes imposed as aforesaid shall be binding upon Grantor, Grantor's representatives, successors and assigns, and shall continue as a servitude running in perpetuity with the Easement Area. IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: (Seal) Jeffrey Fisher Angela Fisher 1, , a Notary Public of the County and State of North Carolina certify that Jeffrey and Angela Fisher personally appeared before me this day and acknowledged the execution of the foregoing instrument. Witness my hand and official stamp or seal, this day of .2003. My Commission Expires: 16 Notary Public [Notarial Seal] STATE OF NORTH CAROLINA COUNTY OF ORANGE The foregoing certificate of certified to be correct. This day of Register of Deeds 17 Notary Public, is This instrument prepared for Clean Water Management Trust Fund by Lana Armstrong and Guenevere Abernathy. 17 18 EXHIBIT A The "PROPERTY" BEING ALL OF THAT PARCEL OF LAND containing 1.64 acres, as described in that certain deed recorded in Deed Book 916, Page 64, dated June 10, 2001 and illustrated in Plat Book 57, Page 3, of the Orange County Registry, North Carolina and further referred to for the purposes of this Conservation Easement as the "Property". This parcel is referred in the Orange County Registry as PIN Number 9891 -91 -6210. This Property has direct access from Erwin Road (State Road 1734), see Plat Book 57, Page 3. 18 19 EXHIBIT B The `BASEMENT AREA" BEING ALL OF THAT CERTAIN AREA OF LAND DEPICTED AS THE CONSERVATION EASEMENT CONTAINING 1.17 ACRES, more or less as shown on a survey entitled "Conservation Easement for the State of North Carolina, Clean Water Management Trust Fund and Rebecca Hall Brown" dated October 24, 2003, prepared by The John R. McAdams Company, Inc. and recorded on October 24, 2003 in Plat Book 93, Page 43, 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. 19 20 EXHIBIT C The Property is located adjacent to New Hope Creek in Orange County. The Property contains 1.64 acres, 1.17 acres of which is considered under this Conservation Easement. The Property contains a house located outside the easement area. The Easement Area is bisected by Erwin Road and a bridge running fiom North to South. The easement area is comprised of two areas, Tract A and Tract B. Tract B that lies west of Erwin Road contains no improvements. Tract A the lies east of the Erwin Road is the site of the former Hollow Rock Store. Groundwater contamination resulting from a leaking gasoline underground storage tank is present at this site. The store was demolished and the talks were removed in the late 1990s to allow for the realignment of Erwin Road and the replacement of the bridge over New Hope Creek. A groundwater remediation system is currently in place. Kenan Oil Company has been named the responsible party for this contamination. Encom Associates, the environmental consulting firm responsible for remediation of the site, submitted a request of the Underground Storage Tank (UST) Section of the NC Department of Environment and Natural Resources (DENR) to cease the aeration operation located on the site. Bill Cook requested the cessation of aeration to allow the areas groundwater to restore its natural flow, in order to measure groundwater contaminant levels for the continued presence of pollutants. On June 15, 2003, The UST office granted a stay of the active clean -up operations for a period not to exceed 6 months, whereby the check wells would be monitored for contaminants. Bill Cook will retest the groundwater of the site in November 2003. If the wells have contaminant levels exceeding allowable guidelines, the clean-up operation will resume. If the pollutant levels are below the guidelines then the UST office will produce a Notice of no Further Action. This notice allows the responsible party to remove the clean -up apparatus and the wells and requires no further action to remediate the UST site. NC Department of Transportation retains access rights on the Easement Area to maintain the Erwin Road Bridge. One of the purposes for protecting this Property is to provide a 300 -foot water quality buffer on New Hope Creek and to provide pedestrian access reserved for the possible placement of future trails as part of the future New Hope 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, entrance, restore, and maintain the natural features and resources of the Property, to provide habitat for native plants and animals, to improve and maintain water quality, and to control runoff of sediment. 20 21 Return this document to Guenevere Abernathy, Triangle Land Conservancy, 1101 Haynes Sheet, Suite 205, Raleigh, NC 27604. ASSIGNMENT OF CONSERVATION EASEMENT STATE OF NORTH CAROLINA COUNTY OF ORANGE PIN: ORANGE COUNTY PIN 9891916210 THIS ASSIGNMENT OF CONSERVATION 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, Hillsborough, 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 FUND ( "Fund "), 1651 Mail Service Center, Raleigh, North Carolina 27699 4651 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 "Fisher Property" and more particularly described in Exhibit A attached hereto and by this reference incorporated herein (the "Easement Area ") with financial assistance being provided by Fund; and WHEREAS, pursuant to said Grant Agreement, Assignor has acquired a Conservation Easement, over the Easement Area; and ,11A WHEREAS, in furtherance of the terms and conditions of the Grant Agreement, the Assignor desires to assign its right, title, and 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, and 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 Jeffrey and Angela Fisher dated the day 2003, and recorded in Deed Book , Page, , Orange County Register of Deeds, Orange County, North Carolina. TO HAVE AND TO HOLD 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 be expressly excepted to by the teens 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 signed by Elizabeth Rooks, President with proper authorization by Board of Directors of Assignor, the date and year first above written. ASSIGNOR: Triangle Land Conservancy Elizabeth Rooks, President STATE OF NORTH CAROLINA COUNTY [CORPORATE SEAL] 1, , 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. WITNESS my hand and official stamp or seal, this day of November 2003. My Commission Expires: Notary Public 23 This instrument prepared for Clean Water Management Trust Fund (Attn: L. Armstrong, CWMTF) by Guenevere Abernathy. 24 EXHIBIT A "THE EASEMENT AREA" BEING ALL OF THAT PARCEL OF LAND containing 1.64 acres, as described in that certain deed recorded in Deed Book 916, Page 64, dated June 10, 2001 and illustrated in Plat Book 57, Page 3, of the Orange County Registry, North Carolina and further referred to for the purposes of this Conservation Easement as the "Property". This parcel is referred in the Orange County Registry as PIN Number 9891 -91 -6210. This Property has direct access from Erwin Road (State Road 1734), see Plat Book 57, Page 3. 25 Mail after recording to: Guenevere 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 9891916210 STATE OF NORTH CAROLINA ASSIGNMENT OF CONSERVATION EASEMENT COUNTY OF ORANGE THIS ASSIGNMENT OF CONSERVATION EASEMENT ( "Assignment') is made on the _ day of 2003 by and between ORANGE COUNTY, NORTH CAROLINA ( "County" or "Assignor ") 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 FUND ( "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. I997B -009 and dated the 1sT day of May1998, providing for the purchase of a Conservation Easement over property identified as the "The Fisher 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. 25 26 WHEREAS, pursuant to said Grant Agreement, Triangle Land Conservancy has acquired a Conservation Easement over the Easement Area, which is described in that certain deed recorded in Deed Book 916, Page 64, dated June 10, 2001 and illustrated in the plat recorded at Plat Book 57, Page 3 of the Orange County Registry, Hillsborough, North Carolina. WHEREAS, in furtherance of the terms and conditions of the Grant Agreement, Triangle Land Conservancy has assigned its right, title, and interest in the Conservation Easement to County, and County has agreed to this Assignment. 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 referenced and assigned, and other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, County hereby conveys and assigns to the State of North Carolina, acting by and through the North Carolina Clean Water Management Trust Fund, 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 Jeffrey and Angela Fisher dated the _day of 2003 and recorded in Deed Book Page, , Orange County Registry, which said Conservation Easement was subsequently assigned to County by instrument recorded in Deed Book , Page , Orange 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 TO HAVE AND TO HOLD the said right, privilege and easement herein granted and assigned to the State of 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 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 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] 26 27 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 ATTEST: Donna S. Baker Clerk to the Board of Commissioners NORTH CAROLINA COUNTY OF ORANGE Margaret W. Brown, Chair Orange County Board of Commissioners 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 Connnissioners. Witness my hand and official stamp or seal, this the day of 20 My commission expires: [Notarial Seal] 27 Notary Public STATE OF NORTH CAROLINA COUNTY OF ORANGE The foregoing certificate of be correct. This _ day of 12003. Register of Deeds 28 9a Notary Public, is certified to 9S EXHIBIT A The " EASEMENT AREA" BEING ALL OF THAT PARCEL OF LAND containing 1.64 acres, as described in that certain deed recorded in Deed Book 916, Page 64, dated June 10, 2001 and illustrated in Plat Book 57, Page 3, of the Orange County Registry, North Carolina and further referred to for the purposes of this Conservation Easement as the "Property ". This parcel is referred in the Orange County Registry as PIN Number 9891 -91 -6210. This Property has direct access from Erwin Road (State Road 1734), see Plat Book 57, Page 3. RM ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTTDN AGENDA ITEM ABSTRACT Mec3ting Date: November 18, 2003 Action Agenda Item No._ SUBJECT: Acceptance of Conservation Easement Assignment from the Triangle Land Conservancy — Jeflrey and Angela Fisher DEPARTMENT: Environment and Resource Conservation ATTACHMENT A. Location Map B. Property Map C. Conservation Easement D. Conservation Easement Assignment PUBLIC HEARING: (Y /N) No INFORMATION CONTACT: David Stancil, 245 -2590 Rich Shaw, 245 -2591 TELEPHONE NUMBERS: Hillsborough Chapel Hill Durham Mebane 732 -8181 968 -4501 688 -7331 336- 227 -2031 PURPOSE: To authorize acceptance of a conservation easement assignment from the Triangle Land Conservancy for land owned by Jeffrey and Angela Fisher along New Hope Creek, and the subsequent assignment of the easement to the State of North Carolina. BACKGROUND: The Lands Legacy 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 acquisition, 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 he 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 (Ervin 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, adopted in 1989. TLC has negotiated the purchase of a conservation easement on 1.17 acres of a 1.64 -acre lot recently purchased by Jeff anc Angela Fisher and the site of the former Hollow Rock Store. The easement will allow future construction of a pedestrian trail for public use along New Hope Creek and a connecto trail for private use by the landowners. 2 TLC will purchase the easement with 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 Creek. Orange County will then assign the conservation easement to the State of North Carolina, which will be the ultimate grantee and holder of the easement. Orange County will reserve from this conveyance the nonexclusive rights initially acquired by the conservation easE ment to monitor, observe, access, and enforce the easement for the conservation and recreational purposes allowed therein. On September 16, 2003, the Board of Commissioners adopted a resolution approving Orange County's acceptance of the conservation easement and authorizing the Chair to sign the easement documents pending 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 November 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 Triangle Land Conservancy will purchase the conservation easement and then convey the easement 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: The Manager recommends that the Board authorize the Chair to sign the conservation easement assignment documents. /910 Z co 0 6) ------------------------------ �a y L a rai 5nel Rtl CHAP 'nhur M'nnia Rd juih�.M� 0 7'40,7607- 07- a CPO Z N e CD 0) VVhfif tl �a �Rd Eubanks Rd Weaver Dairy Rd C-1 1 P o mecleatl Rd 0 Da and Rd RR� on , o NwY 54 ea Cleansbwo �+ ON s G f Rd 2 M ^' aa per` 6� creensaoM Rtl 1 pO MINWNM- 8 $ Ry g 7l h h� s� 5� L o c' *qTe1 oar MAP . /� Ibis 1 3 z Y Z � V Q E3 Brown / Fisher Property Proposed Conservation Easement (1.2 acres) Proposed Trail Corridor Streams 0 Parcel Boundary 5' Contours Proposed Conservation Easement oov « 4 Brown / Fisher Property PIN 9891 -91 -6210 TMBL 7.16..22 Courrty of Orange Enwronment & Resource N Conservation Department 40 0 40 80 Feet M Janes 11/10103 "MMM� + 5 Please return to: Guenevere Abe mathy, Triangle Land Conservancy, 1101 Haynes Street, Suite 205, Raleigh, NC 27604 STATE OF NORTH CAROLPlA PIN NO. 9891916210 COUNTY OF ORANGE CONSERVATION EASEMENT THE BROWN / FISHER TRACT THIS CONSERVATION EASEMENT ( "Conservation Easement ") is made on this — day of _ 2003 by and between Jeffrey Fisher and Angela Fisher, husband and wife, with an address at NC ( "Grantor ") and Triangle Land. Conservancy, a nonprofit corporation organized and existing under the laws of State of Nort hh Carolina with an address at 1101 Haynes Street, Suite 205, Raleigh, NC 27604 ("Grantee"). RECITA ILS & CONSERVATION PURPOSES A. Grantor is the sole owner in fee simple of the property containing 1.64 acres more or less, located in Chapel Hill Township, Orange County, North Carolina, and more particularly described in an iri.strument recorded in Book 916, Page 64, Orange County Registry (hereinafter the "Pro Iperty ") and further described in Exhibit A attached hereto and by this reference incorporated herein. B. WHEREAS, Grantor and Grantee have agreed to set aside 1.17 acres of the Property (as described herein below and hereinafter referred to as the "Easement Area'), for the purpose of creating a Conservation Easement to preserve, enhance, restore, and maintain the natural features and resources of the Easement Area, to provide habitat for native plants and animals, to improve and maintain water quality, and to control runoff of sediment (hereinafter the "Conservation 'Values "). 5 M C. The Easement Area is depicted on a survey dated October 24, 2003, entitled "Conservation Easeriaent for the State of North Carolina, Clean Water Management Trust Fund and Rebecca Hall Brown ", prepared by John R. Mc Adams, Inc. recorded in the Orange County Registry October 24, 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 space values in the State of North Carolina for charitable, scientific, educational and aesthetic purposes at such time it conveys an Assignment of Conservation Easement to the c STATE OF NORTH CAROLINA, by and through the Clean Water Management Trust Fun J, and the same is recorded in the Orange County, North Carolina. E. Grantor and Grantee recognize that the Easement Area is located adjacent to the New Hope Creek and its tributaries, and the Easement Area has been deemed by the State of North Carolina to qualify a, a riparian buffer, addressing the cleanup and prevention of pollution of the State's surface, vaters, and the establishment of a network of riparian buffers. Moreover, Grantor and Grantec recognize that the Easement Area has other conservation values including fish and wildlife conservation, open space and scenic values. F. The 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, 1321 Mail Service Center, Raleigh, North Carolina 27699 -1321, and is authorized by Article 13A, Chapter 113 of the General Statutes of North Carolna to finance projects and to acquire land and interests in land, including conservation easements for riparian buffers for the purposes of providing environmental protection for surface waters and urban drinking water supplies. G. Grantee has reef .ived a grant from the Fund identified as Grant Agreement No. 199713-009 ( "Grant Agreeirvenf) for acquisition of a Conservation Easement in consideration of which Grantor has agreed that the 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, State and Fund (collectively referred to herein as the "Parties ") hereto intend that th,, conservation values of the Easement Area will be preserved and managed pursuant to the Terms and conditions of said Grant Agreement entered into between the Grantee and the Fund on the 1St day of May 1998, incorporated herein by reference, and available for in:rpection in the offices of the North Carolina Department of Environment and Natural Resot trees, the Grantor and Fund. The Parties further acknowledge and agree that Grantee will accept this Conservation Easement; that the State will be the ultimate Grantee and Holder o: 7 this Conservation Easement; and, that Grantor has received i consideration for granting this easement to the Grantee and restricting the uses of the Easement Area. I. Grantor and Gn urtee 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 the objectives of preserving the conservation and water quality, falues; and that the Exhibit C is not intended to preclude the use of other evidence (e.g. surveys, appraisals) to establish the present condition of the Easement Area if there is a Conti oversy over its use. NOW, THEREFORE, iv i consideration of the premises and the mutual benefits recited herein, together with other goc 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 cc nveys 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 ] iereinafter 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 i 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 oi' 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 ir. the Recitals herein. ARTIC ILE I. DURATION OF EASEMENT This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land, and is e lforceable by Grantee against Grantor, its representatives, successors, assigns, lessees, age: its and licensees. ARTICLE I'[. RIGHTS RESERVED TO GRANTOR Grantor reserves certain rights accruing from fee simple ownership of the Easement Area, including the right to engage in or permit others to engage in uses of the Easement Area that are not inconsistent with the purpose(s) of this Conservation Easement. All rights reserved by Grantors; ire reserved for Grantors, their representatives, successors, and assigns, and are considered to be consistent with the conservation purposes of this Conservation Easement. The following rights are expressly reserved: A. Passive Recreational Use. The Grantor reserves the right to engage and to allow others to engage in passiN e recreational uses of the Easement Area, requiring no surface alteration of the land and posing no threat to conservation values, including, without 8 limitation, walking, fishing, or a iimal and plant observation; 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 amendrr ents thereto. B. New Hope Creek Trail and Extension Trail. The Grantor covenants and agrees that the Grantee, its suc Lessors and assigns, shall have the perpetual and assignable right to construct, operate and rr, aintain a paved or unpaved New Hope Creek Trail within the Easement Area as indicated by he Land Use Element of the Orange County Comprehensive Plan, adopted September 2, 198 1, ( "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. The New Hope Creek Trail must be located at a minimum distance of fifteen (15) feet from the top of the bank of New Hope Creek, located at a maximum distance of fifty (50) feet from the top of the bank of New Hope Creek, run parallel with the top of the bank of New Hope Creek, and the trail will be no wider than ten (10) feet, unless such locations are physically impracticable, and in a manner that does not materially diminish the wooded, open space character, and scenic and natural qualities of the Easement Area as existing on the date of this Conservation Easement. In the construction of New Hope Creek, and when required by the terrain, boardwalks, ramps, handrails, and steps are permitted herein. The Grantee may also construct and maintain parr, benches, litter receptacles, and trait'feature signs along New Hope Creek Trail. The Grantor reserves the right to construct and maintain an extension trail for accessing New Hope Creek 'Trail from the Property located outside of the Easement Area. The extension trail must be comtructed and located in compliance with both the guidelines of the Fund and aforesaid Master Man and does 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 Commu pity Restoration. The Grantor covenants and agrees that the Grantee shall 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 asso -,iated with all aforesaid improvements, including, but not limited to, the greenway trail, 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, Grantor and Grantee have no right to agree to any activity that would result in the termination of this Conservation Easement. ARTICLE III. PROHIBITED AND RESTRICTED ACTIVITIES Any activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural, scenic, wooded and open condition and restricted from any development or use that would M impair or interfere with the cor nervation 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. Agricultural, limber 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 prescr bed burning or clearing of vegetation and the application of mutually approved pesticideE for fire containment and protection, disease control, restoration of hydrology, wetlaj ids enhancement and/or control of non - native plants; subject however, to the prior approval. of Fund, and (3) fishing pursuant to applicable rules and regulations. D. Construction o ' Buildings and Recreational Use. There shall be no constructing or placing of any building, mobile home, asphalt or concrete pavement, billboard or other advertising display, antenna, utility pole, tower, conduit, line, pier landing, dock or any other temporary or permanent structure or facility on or above the Easement Area except for the following: the construction and maintenance of New Hope Creek Trail, the construction and maintenance of the extension trail, 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. E. Mineral Use, Excavation, Dredging. There shall be no filling, excavation, dredging, mining or drilling; nc 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 eror ion or incidental to any conservation management activities otherwise permitted in the Easei nent Area. F. Wetlands and Water Quality. 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 E 10 surface waters, or cause soil degradation or erosion nor diking, dredging, alteration, draining, filling or removal of wetlands, except activities to restore natural hydrology or wetlands enhancement as permitted by stare and any other appropriate authorities. G. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances, or machinery, or other materials on the Easement Area is prohibited. H. Conveyance and subdivision. The Property may not be subdivided, partitioned nor conveyed, except in its curreint 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 I'V. ENFORCEMENT AND REME DIES A. Enforcement. -o 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 tl iat may have been damaged by such activity or use. Upon any breach of the terms of this Conservation Easement by Grantor that comes to the attention of the Grantee, the Grantee shall, e xcept as provided below, notify the Grantor in writing of such breach. The Grantor shall have ninety (90) days after receipt of such notice to correct the conditions constituting such breach. If the breach remains uncured after ninety (90) days, the Grantee may enforce this Conservation Easement by appropriate legal proceedings including damages, injunctive and other relief. The Grantee shall also have the power and authority, consistent with its statutory autl.ority: (a) to prevent any impairment of the Easement Area by acts which may be unlawful or in violation of this Conservation Easement; (b) to otherwise 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 immediate right, without notice, to obtain a temporary restraining order, injunctive or other appropriate relief if the breac i of the term of this Conservation Easement is or would irreversibly or otherwise materially impair the benefits to be derived from this Conservation Easement. The Grantor and Grantee acknowledge that under such circumstances damage to the Grantee would be irrepara )le and remedies at law will be inadequate. The rights and remedies of the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights and remedies available to Grantee in connection with this Conservation Easement, including, without limitation, those set forth in the Grant Agreement under which this Conservation Easement was obi wined. B. Right of Entry and Inspection. Grantee, its employees and agents and its successors and assigns, have the right, with reasonable notice, to enter the 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. However, if direct access to the Easement Area is 10 11 not available, the Grantee, its eriaployees and agents and its successors and assigns, have the right, with reasonable notice, to enter the Property at reasonable times for the purpose of inspecting the Easement Area to determine whether the Grantor, Grantor's representatives, or assigns are complying with die terms, conditions and restrictions of this Conservation Easement. C. Changed Conditions. The grant or donation of this Conservation Easement gives rise to a property right imi nediately 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 conservation purposes, the restrictions contained herein may only be extinguished by judicial proceec ling. 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 msferred 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 t•ansaction or proceeding. Grantee, its successors and assigns, shall use its share of the proceeds of 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 c f such taking or sale to recover the full value of the taking and all incidental or direct damages resulting from the 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 specifies l 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 judicial proceeding. 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 Conservatio in Easement. "Proceeds of Sale" shall mean the cash value of all money and property paid, transferred or contributed in consideration for, or as otherwise required as a condition to the sale, exchange or involuntary conversion of the Conservation Area, or any damages otherwise awarded as a result of judicial proceeding, minus the Grantor's expenses from such bansaction 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. 11 12 E. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury or change in the Easemer t Area caused 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 signil icant injury to life, damage to Easement Area or harm to the Easement Area resulting from su ch causes. F. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Conservation Easement against Grantor, including, without limitation, any costs of restoration necessitated by Grantor's acts or omissions in violation of the terms of this Conservation Easement, shall be borne by Grantor. G. No Waiver. Enforcement of this Conservation Easement shall be at the discretion of the Grantee and air it forbearance by Grantee to exercise its rights hereunder in the event of any breach of any ten n 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 sucl i right or remedy or be construed as a waiver. ARTICLE V. DOCUMENTATION AND TITLE A. Easement Area 1 "ondition. The parties acknowledge that the Easement Area is undeveloped, with no improven Tents other than as described in Exhibit C and easements and rights of way of record. B. Title. The Gran :or 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 Easeme lt; 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 wouk nullify, impair or limit in any way the terms or effect of this Conservation Easement; Grani or 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. ARTICLE VI. MISCELLANEOUS A. Subsequent Tray sfers 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 herb i, to notify the Grantee and the State in writing of the names and addresses of any party to wl iom the Property is to be transferred at or prior to the time said transfer is consummated. Grant or, for itself, its successors and assigns, further agrees to make specific reference to this Conservation Easement in a separate paragraph of any subsequent 12 13 lease, deed, or other legal instrui nent by which any interest in the Property or Easement Area is conveyed according to Article M.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 1.70(h)(3) of the Internal Revenue Code of 1986, as emended, or any successor section, and the regulations promulgated thereunder (the "Internal Revenue Code ") which is organized or operated primarily for one of the consc;rvation purposes specified in Section 170(h)(4)(A) of the Internal Revenue Code. The Pz rties further covenant and agree that the terms of the transfer or the assignment will be such (:hat 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 moni .or and observe the Easement Area in perpetuity for such purposes set forth by this Conservation Easement and Grant Agreement, and to report to the Fund and the State any observed violations on the Easement Area. C. Existing Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein, this Conservattion 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 i assessments levied against the Property. If the Grantee is ever required to pay any taxes or assessments on its interest in the Easement Area, the Grantor will reimburse the Grantee for the same. (2) Upkeep and Maintenance. The Grantor shall continue to be solely responsible for the upkeep and maintenance of the Easement Area, to the extent it may be required by law, except for that certain area defined as the New Hope Creek trail and that portion of the property located between the top of the bank of New Hope Creek and the New Hope Creek trail, which is constructcd, maintained and operated under the said Master Plan. The Grantee shall have no other obligation for the upkeep or maintenance of the Easemeriit Area. (3) Liability an. :1 Indemnification. Grantee shall, to the extent permitted by law, indenv ufy and hold Grantors harmless from any liability, damage, loss, cost c r 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 Grantee's exercise of any of its rights hereunder, except to the extent the liability, damage, lo; >s, cost or expense arises from the negligence or willful misconduct of Grantor. However, the State of North Carolina as an assignee of i3rantee's interest in this Conservation Easement shall be held 13 14 harmless from any liability, damage, loss, cost or expense, including reasonable atl:orney fees, for personal injury or property damage, unless the State of North Carolina has committed a deliberate act that is determined to be the sole cause of the injury or damage. D. Conservation Pu,pose. (1) Grantor and Clrantee, 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 specified in S,;ction 170(h)(4)(A) (2) The Parties re cognize and agree that the proposed New Hope Creek Trail located within the Easement Area will be open for public entry and use, and shal l be open to entry and use equally by all persons, regardless of race, color, creed, national origin, residence, or sexual preference subject to reasonable published and posted rules governing use of the Easement Area by the I srantee, its successors and assigns, as approved by the Fund, and consistei it with the conservation purposes provided by this Conservatioi i Easement. (3) This Conseraation Easement shall be construed to promote the purposes of the North Carolina enabling statute set forth in N.C.G.S. 121 -34 et sew. which authorizes the creation of Conservation Easements for purposes including those set forth in the Recitals herein, and the conservation purposes of t his Conservation Easement, including such purposes as are defined in Se :tion 170(h)(4)(A) of the Internal Revenue Code. E. Recording. Grantee shall record this instrument and any amendment hereto in timely fashion in the official re cords of Orange, North Carolina, and may re- record it at any time as may be required to preserve Grantee's rights. F. Notices. All ne tices, 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 as set forth above, or to such other addresses such party may establish in writing to the other. All such items shall be deemed given or made three (3) days after being placed in the United Staters 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 shall be deemed denied unless, within ninety (90) days after 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 wi rh the purposes of this Conservation Easement or affects the perpetual duration of this Conservation 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, North Carolina. 14 15 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 compliai ice 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 ie Easement Area for the purposes set forth in the Recitals and the Grantor will not allow such uses or conditions except for the groundwater contamination further described in Exhibit C. 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 of such provision to persons or circumstances other than those as to which it is found to be inv, slid, shall not be affected thereby. The party (ies) hereto intend this document to be an instnument executed under seal. If any party is an individual, partnership or limited liability company, such party hereby adopts the word "SEAL" following his/her signature and the name of the partnership or limited liability company as his/her /its legal seal. The Recitals set fr rth above and the Exhibits attached. hereto are incorporated herein by reference. J. Indem-nily. The Grantor agrees to the fullest extent permitted by law, to defend, protect, indemnify anc hold harmless Grantee from and against all claims, actions, liabilities, damages, fines, penalties, costs and expenses suffered as a direct or indirect result of any violation of any federal, suite, 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 th a conservation purposes sought to be protected herein. 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 grai itees, and all other successors in interest herein. M. Merger. The parties agree that the terms of this Conservation Easement shall survive any rr, erger of the fee and easement interest in the Property and Easement Area. 15 16 L. Subsequent Liens. 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 Conservatioi i Easement. TO HAVE AND TO HOLD unto GRANTEE, its successors and assigns, forever, the covenants agreed to and the tern is, 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 i perpetuity with the Easement Area. IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: (Seal) Jeffrey Fisher (Seal) Angela Fisher I, , a Notary Public of the _ County and State of North Carolina certify that Jeffrey and Angela Fisher personally appeared before me this day and acknowledged the executioi i of the foregoing instrument. Witness my hand and official stamp or seal, this day of , 2003. My Commission Expires: 16 Notary Public [Notarial Seal] 17 STATE OF NORTH CAROLIN COUNTY OF ORANGE The foregoing certificate of _ _, Notary Public, is certified to be correct. This day of .2003. Register of Deeds This instrument prepared for Clean Water Management Trust Fund by Lana Armstrong and Guenevere Abernathy. 17 18 EXHIBIT A The "PROPERTY" BEING ALL OF THAT PARCEL OF LAND containing 1.64 acres, as described in that certain deed recorded in Deed B Kok 916, Page 64, dated June 10, 2001 and illustrated in Plat Book 57, Page 3, of the Orange County Registry, North Carolina and further referred to for the purposes of this Conservation Ez sement as the "Property". This parcel is referred in the Orange County Registry as PIN 14umber 9891 -91 -6210. This Property has direct access fi•om Erwin Road (State Road 1734), see Plat Book 57, Page 3. 18 19 EXHIBIT B Tie `BASEMENT AREA" BEING ALL OF THAT CERTA IN AREA OF LAND DEPICTED AS THE CONSERVATION EASEMENT[ CONTAINING 1.17 ACRES, more or less as shown on a survey entitled "Conservation Easement for the State of North Carolina, Clean Water Management Trust Fund and Rel )ecca Hall Brown 'dated October 24, 2003, prepared by The John R. McAdams Company, Ins- and recorded on October 24, 2003 in Plat Book 93, Page 43, Orange County Registry, Hillsborough, North Carolina. Together with the right of ingres egress and regress over, upon and across the Property to and from the Easement Area. 19 KII EXHIBIT C The Property is located adjacent to New Hope Creek in Orange County. The Property contains 1.64 acres, 1.17 acres o f which is considered under this Conservation Easement. The Property contains a house located outside the easement area. The Easement Area is bisected by Erwin Road and a bridge running from North to South. The easement area is comprised of two areas, Tract A and Tract B. Tract B that lies west of Erwin Road contains no improvements. Tract A the lies east of the Erwin Road is the site of the former Hollow Rock Store. Groundwater contamination rest zlting from a leaking gasoline underground storage tank is present at this site. The store was demolished and the talks were removed in the late 1990s to allow for the realignment of Ery ,in Road and the replacement of the bridge over New Hope Creek. A groundwater remediation system is currently in place. Kenan Oil Company has been named the responsible party for this contamination. Encom Associates, the environmental consulting firm responsible for i emediation of the site, submitted a request of the Underground Storage Tank (UST) Section of the NC Department of Environment and Natural Resources (DENR) to cease the aeration operation located on the site. Bill Cook requested the cessation of aeration to allow th,, areas groundwater to restore its natural flow, in order to measure groundwater contamin, tnt levels for the continued presence of pollutants. On June 15, 2003, The UST office granted a stay of the active clean-up operations for a period not to exceed 6 months, whereby the check wells would be monitored for contaminants. Bill Cook will retest the groundwater of the site in November 2003. If the wells have contaminant le eels exceeding allowable guidelines, the clean-up operation will resume. If the pollutant levels are below the guidelines then the UST office will produce a Notice of no Further Action. 'Phis notice allows the responsible party to remove the clean-up apparatus and the wells and regi sires no further action to remediate the UST site. NC Department of Transportation retains access rights on the Easement Area to maintain the Erwin Road Bridge. One of the purposes for protecting this Property is to provide a 300 -foot water quality buffer on New Hope Creek and to provide pedestrian access reserved for the possible placement of future trails as part of the future New Hope 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 provide habitat for native plants and animals, to improve and maintain water quality, and to control runoff of sediment. 20 21 Return this document to Guenever e Abernathy, Triangle Land Conservancy, 1101 Haynes Street, Suite 205, Raleigh, NC 27604. ASSIGNMEN77 OF CONSERVATION EASEMENT STATE OF NORTH CAROLINA COUNTY OF ORANGE PIN: ORANGE COUNTY PIN 19891916210 THIS ASSIGNMENT OF CONSERVATION EASEMENT ( "Assignment ") is made on the day of November 2003, by and between Triangle Land Conservancy ( "Assignor "), a North Carolina nonprofit corporatlion, 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 polirical subdivision of the State of North Carolina, with a mailing address of P.O. Box 8181, Hillsborough, 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 througl. the NORTH CAROLINA CLEAN WATER MANAGEMENT TRUST FUND ( "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 "Fisher Property" and more particularly described in Exhibit A attached hereto and by this reference incorporated herein (the "Easement Area ") with financial assistance being provided by Fund; and WHEREAS, pursuant to saki Grant Agreement, Assignor has acquired a Conservation Easement, over the Easement Area; and 22 WHEREAS, in furtherance of the terms and conditions of the Grant Agreement, the Assignor desires to assign its right, title, -,nd interest in said Conservation Easement to County, and County has agreed to this Assignm,,nt. 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, ind other good and valuable consideration, the receipt and sufficiency of which are herein ackmowledged, 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 Jeffrey and Angela Fisher dated the day 2003, and recorded in Deed Book , Page, Orange County Register of Deeds, Orange County, North Carolina. TO HAVE AND TO HOLD 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 be 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 IC Elizabeth Rooks, President STATE OF NORTH CAROLINA COUNTY [CORPORATE SEAL] 1, , 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. WITNESS my hand and official stamp or seal, this day of November 2003. My Commission Expires: Notary Public 23 This instrument prepared for C Lean Water Management Trust Fund (Attn: L. Armstrong, CWMTF) by Guenevere Abernathy. 24 EXHIBIT A "THE EASEMENT AREA" BEING ALL OF THAT PARCEL OF LAND containing 1.64 acres, as described in that certain deed recorded in Deed Book 916, F age 64, dated June 10, 2001 and illustrated in Plat Book 57, Page 3, of the Orange County Registry, North Carolina and further referred to for the purposes of this Conservation Easement as the "Property ". This parcel is referred in the Orange County Registry as PIN Number 9891 -91 -6210. This Property has direct access fro in Erwin Road (State Road 1734), see Plat Book 57, Page 3. 25 Mail after recording to: Guenevere Abernathy, Triangle Land Conservancy 1101 Haynes Street, Suite 205, Raleigh, NC 27604 Instrument prepared for Clean Wa:er Management Trust Fund by Lana Armstrong and Guenevere Abernathy PIN: ORANGE COUNTY PIN 9891916210 STATE OF NORTH CAROLINA ASSIGNMENT OF CONSERVATION EASEMENT COUNTY OF ORANGE THIS ASSIGNMENT OF CONSERVATION EASEMENT ( "Assignment ") is made on the day of 2003 by and between ORANGE COUNTY, NORTH CAROLINA ( "County" or "Assi!mor ") 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 an through the NORTH CAROLINA CLEAN WATER MANAGEMENT TRUST FUND ( "Fund "), 1651 Mail Service Center, Raleigh, North Carolina 27699 -1651. WITNESSETH: WHEREAS, Triangle Lard Conservancy, a North Carolina non- profit corporation and the Fund have entered into a Gran t: Agreement identified as Grant Agreement No. 1997B-009 and dated the 1 ST day of May1998, providing for the purchase of a Conservation Easement over property identified as the "The Fib her 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 I`und. WHEREAS, pursuant to s aid Grant Agreement, Triangle Land Conservancy has acquired a Conservation Easement: over the Easement Area, which is described in that certain 25 26 deed recorded in Deed Book 916, P age 64, dated June 10, 2001 and illustrated in the plat recorded at Plat Book 57, Page 3 of he 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 � ccruing to State, Assignor, and the public from the Conservation Easement herein referenced and assigned, and other good and valuable consideration, the receipt and suff liency of which are herein acknowledged, County hereby conveys and assigns to the State of North Carolina, acting by and through the North Carolina Clean Water Management Trust Fund, 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 Je:Trey and Angela Fisher dated the __day of 2003 and recorded in Deed Book Page, , Orange County Registry, which said Conservation Easement was subsequently assigned to County by instrument recorded in Deed Book , Page , Orange 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 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 t le 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 fhe 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] 26 27 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 f irst above written. ORANGE COUNTY, NORTH CAROLINA ATTEST: Donna S. Baker Clerk to the Board of Commissioners NORTH CAROLINA COUNTY OF ORANGE Margaret W. Brown, Chair Orange County Board of Commissioners I, , a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal, this the day of , 20_ My commission expires: [Notarial Seal] 27 Notary Public STATE OF NORTH CAROLINA COUNTY OF ORANGE The foregoing certificate of be correct. This day of , 2003. Register of Deeds 28 28 Notary Public, is certified to 29 EXHIBIT A The " EASEMENT AREA" BEING ALL OF THAT PARCEL OF LAND containing 1.64 acres, as described in that certain deed recorded in Deed Book 916,1'age 64, dated June 10, 2001 and illustrated in Plat Book 57, Page 3, of the Orange County Registry, North Carolina and further referred to for the purposes of this Conservation Easement as the "Property". This parcel is referred in the Orange County Registry as PIN Number 9891 -91 -6210. This Property has direct access frcm Erwin Road (State Road 1734), see Plat Book 57, Page 3. 29