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HomeMy WebLinkAboutAgenda - 12-01-2003-5bORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 1, 2003 Action Agenda Item No. ~- .~ SUBJECT: Resolution for Purchase of Conservation Easement -Mark and Lori Volpe DEPARTMENT: Environment and Resource Conservation PUBLIC HEARING: (YIN) No ATTACHMENT Draft Resolution Location Map Property Map Draft Conservation Easement Conservation Easements Capital Project Ordinance 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 consider a resolution approving the purchase of a conservation easement in land owned by Mark and Lori Volpe (cheeks Township) to provide an Eno River buffer and other conservation values, 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. The Volpe property is located north of Halls Mill Road at the confluence of the east and west forks of the Eno River (Cheeks Township). The property includes 4,000 linear feet of river frontage and associated floodplain, The 66-acre property is forested with mature hardwoods except for an upland area recently cleared for the Volpe residence. The Volpe property has many conservation values that will receive permanent protection with the conservation easement. Those values include an important riparian wildlife corridor recognized by the North Carolina Natural Heritage Program and riparian buffers that help to protect drinking water in the Upper Eno watershed critical area. Finally, the protected property will contribute to the rural character and open space prevalent in this section of Cheeks Township. ERCD staff and the County Attorney have worked with the Volpes to craft an easement that meets the family's needs and the County's interests. The proposed easement area (23.5 acres) would protect a 300-foot riparian corridor and an adjacent hardwood forest slope. Future development rights would be relinquished through the easement, with the exception of pedestrian trails and sitting areas within the woodlands existing ar to be constructed by the Volpes. The purchase price for the easement is $70,600 and is based on a market appraisal of the property. FINANCIAL IMPACT: The Volpes have agreed to "sell" the conservation easement at the appraised value of $70,600, or $3,260 per acre. The cost of the easement purchase will be funded from available alternative financing funds for conservation easements issued in 2002, Orange County (ERCD) will assume the task of monitoring the property on an annual basis and helping to enforce the development restrictions. Orange County will also pay an estimated $2,500 in transaction costs, These County costs (totaling $73,100), will come from the $1,000,000 in alternative financing approved by the Board of Commissioners in FY 2002- 03, and in accordance with the Conservation Easement Capital Project Ordinance approved by the Board on March 24, 2003, The attached Conservation Easements Capital Project Ordinance allocates $73,100 of the $1,000,000 towards this purchase, RECOMMENDATION(S): The Manager recommends that the Board adopt the resolution approving the acceptance by Orange County of the conservation easement and authorize the Chair and the Clerk to sign the conservation easement agreement, subject to final review by staff and the county attorney; and approve the attached Conservation Easements Capital Project Ordinance. ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of a Conservation Easement between Orange County and Mark and Lori Volpe WHEREAS, Orange County has adopted goals promoting the preservation of natural areas, wildlife habitat, farmland and open space in the County; and WHEREAS, Orange County has adopted measures that exceed State minimum standards to protect public water supply watersheds, including the Eno River watershed which provides drinking water to the residents of Hillsborough and Efland; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on lands that include natural areas, wildlife habitat and riparian buffers within water supply watersheds; and WHEREAS, Mark and Lori Volpe own a 66-acre property situated at the confluence of the East Fork Eno River and West Fork Eno River -all of which is within the critical area of the Upper Eno Protected Watershed; and WHEREAS, the Volpes wish to permanently protect a 23.5-acre portion of the property that includes a significant riparian corridor and an adjacent hardwood forest slope; and WHEREAS, a conservation easement provides awin-win scenario -ensuring the preservation of this land far future generations in private ownership and providing some level of compensation far Volpe family; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the conservation easement in the property awned by Mark and Lori Volpe that is described in the conservation easement agreement; 2) approve the execution of this conservation easement agreement with Mark and Lori Volpe, in accordance with the terms of the attached easement agreement, subject to final review by staff and the county attorney; and 3) authorize the Chair and the Clerk to sign the easement agreement on behalf of the Board, with a closing to occur on or about .lanuary 30, 2003. BE IT FURTHER RESOLVED that the Board thanks the Volpes for their civic-minded interest in pursuing a conservation easement, and for enhancing the County's Lands Legacy Program. This the 1 st day of December, 2003, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board Upper Eno Wa~ershe~' Orange County, NC E pper Eno Watershed lajor Streams & Rivers Miles Omnge County Environment & ftesoutce Conservn[ion t7epariment 5 Volpe Property (66..2 Acres) / ~ /Trails ® Conservation Easement /V Streams (23.5 Acres) N Driveway ~ Buildings Forested Cleared Area Well • Septic Tank [~ Parcel8oundary Mark & Lori Volpe Tract Upper Eno Watershed ..,~~' 0 200 400 Feet ® ~a~o^„o„~o, ® Fnv ma 14 fta:vnca coo.orvmion o.ao+mar. M JVnec d10N) ~ Proposed Conservation Easement (~ i~olpe Conser°vation Easenaertt 11-.24-03 draft (clemr) Prepared by and return to: Geoffrey E. Gledhill; Coleman, Gledhill, Hargrave and Peet; P, O. Drawer 1529; Hillsborough, NC 27278 NORTH CAROLINA COUNTY OF ORANGE CONSERVATION EASEMENT Ihis Grant of Conservation Easement (hereinafter "Conservation Easement") is made the _ day of , 2002 by MARK VOI,PE and LORI VOLPE, husband azrd wife, having an address at 1717 Halls Mill Road, Hillsborough, NC 27278 (hereinafter "Grantors") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee"). The designation Grantors and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantors are the sole owners in fee simple of certain Property, more par°ticularly described in Exhibit A, attached her°eto and incorporated herein (the "Grantors' Property") which consists of approximately 23.5 acres of land, located in Cheeks Township, Orange County, North Carolina, and identified as on the plat of property dated titled "Property Survey for Mark and Lori Volpe," prepared by Callemyn- Parker, hia, which plat is recorded at Plat Book _ Page -, Orange Cotmty Registry. These lands, comprising 23.5 acres, are hereinafter collectively referred to either "the Grazltors' Property" or the "Easement Area." To the extent practicable, the Grantors wish to maintain the Grantors' Property as a combination of woodland and open space suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to prrotect the quality of water rumring off from this land and into the Eno River-a public water supply for residents of Orange County. B. The Grantee is a body politic existing tinder Chapter 15.3A of the North Carolina General Statutes, C- The Easement Area is a significant natural area that qualifies in its present condition as a "_.relatively natural habitat of fish, wildlife, or plants, or similar ecosystem," as that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in regulations promulgated thereunder. Specifically, the Easement Area is habitat for a variety of native plants and animals lmown to hrYrabit the Eno River Refuge System as described on Pages 41-42 of the Lrvw2tory of the Natural Areas and Wildlife Habitats of Ormrge County, North Carolina Page 1 of 14 1 Volpe Conser~~ation Easement I1-24-0.3 draft (clemr) (December 1988), by Dawson Sather and Stephen Hall in coordination with the North Carolina Natural Heritage Program. The Easement Area also includes land within a zone designated by Orange County as a "critical area" of a protected water supply watershed for the Corporation Lake Reservoir and Lake Ben .lolmson Reservoir. Another primary purpose of this Easement to protect the largely undeveloped nature of the Grantors' Property and, in doing so, helping to protect the high quality of that drinking water supply serving the people of central Orange County. The Easement Area also contributes to the open space and rural character of northern Cheeks Township and the Upper Eno Protected Watershed, so classified in the Orange County Zoning Ordinance and located northwest of the Town of Hillsborough. It is a further purpose of the Easement to help to protect the rttral char°acter and open space of northern Cheeks Township. The natural and wildlife habitat resources of the Grantors' Properly, and its contribution to the protection of the area water supply and rural character, are collectively referred to as the "conservation values" of the Easement Area, D, The characteristics of the Easement Area, its current use and state of improvement, are described in a report entitled "Baseline Report on the Marlc and Lori Volpe Property," dated , 200_ (hereafter "the Baseline Report") prepared by Grantee for the Grantors, of which a summary is attached as Exhibit A to this Conservation Easement, The Grantors worked with the Grantee to ensure that the report is a complete and accurate description of the Easement Area as of the date of this Conservation Easement, It will be used by the Grazrtors and Grantee to assure that any future changes in the use of the Easement Area will be consistent with the terms ofthis Conservation Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the present condition of the Easement Area if there is a question about its use. E. The Grantors and Grantee have the common purpose of conserving the above-described conservation values of the Easement Area in perpetuity, azxd the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen, Stat. § 121-34 et seq., and N.C. Gen. Stat, §§ 160A-266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominazitly in their natural, scenic or open condition or in agricultural, horticultural, fanning, or forest uses," and which provide for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvements less any reduction in value caused by the agreement' ;and the Grantors azld Grantee wish to avail themselves of the provisions of those laws. Page 2 of 14 Volpe Conservation Easement 11-24-0.3 draft (clean) NOW, THEREFORE, the Grantors, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby gives, grants and conveys unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Easement over the Easement Area of the nature and character as follows: 1. PURPOSE. The purposes of this Conservation Easement are to ensure that the Easement Area will be retained forever predominantly in its natural, forested, and open space condition; to protect native plants and animals, or plant communities on the Easement Area, while allowing certain limited uses on the Easement Area that are compatible with and not destructive of the conservation values of the Easement Area, such as research and educational activities that will not impair or interfere with the conservation values or interests of the Easement Area. Grantor's will not perform, nor larowingly allow others to perform, any act on or affecting the Easement Area that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantors to take any action to restore the condition of the Easement Area after any act of God or other event over which Grantors had no control. Grantors understand that nothing in this Conservation Easement relieves them of any obligation or restriction on the use of the Easement Area imposed by law.. 2, EASEMENT AREA USES. Any activity on, or use of; the Easement Area inconsistent with the proposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting flee generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantors and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantors are set forth in Paragraph 3 below. 2.1 Subdivision. The Property may not be divided, subdivided or partitioned, nor conveyed except in its current configuration as an entity, 2.2 Construction. Grantors shall have the right to construct and maintain natural surface trails for pedestrian use only within the Easement Area as long as the trails are no more than 8 feet wide and no closer to rivers or streams than what is allowed by the State of North Carolina's riparian buffer protection piles for the Neuse River Basin (Title I SA NCAC 02B .02.32).. The trails must be constructed with pervious materials, except where wooden steps or bridges are required by the terrain. New trails must be located a mininnun of fifteen (15) feet from the top of the bazilc of the Eno River and its tributaries and should be sited so as to cause minimal disturbance to the conservation values of the Easement Area. Page .3 of 14 Volpe Conservation Easement 11-24-03 draft (clemr) Grantors have the right to construct two (2) gazebos with a total footprint of no larger than 200 square feet and up to four (4) benches within the Easement Area. No other structures maybe placed or constructed on the Easement Area. Furthermore, there shall be no eonshvcting or placing of any outdoor lighting, utility pole, utility tower, conduit or line on or above the Easement Area other than those necessary to service the Easement Area's improvements and remaining compatible with the conservations values or interests of the Easement Area. 2.3 Existinghnprovements. Grantors shall have the right to maintain, remodel, and repair existing structures, water wells, fences, and other improvements, and in the event of their destnction, to reconstruct arty such existing improvements with another of similar size, function, capacity, location and material so long as authorized by Orarrge County zoning regulations and consistent with permits required by and issued by Orange County under its laws and ordinances for such reconstruction. 2.4 A~icultural Use. Agricultural uses on the Easement Area are prohibited. 2.5 Timber Harvest. Commercial timbering of trees within the Easement Area is prohibited. Trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, and foi firewood and construction of perniitted improvements and fences on the Grantors' Property. Cutting, removal or harvesting of trees except as expressly allowed in this Section 2.5, including clearing land for cultivation, shall he specifically approved by the Grantee or shall be in accordance with a Forest Management Plan which shall be in writing and approved by both Grantors and Grantee and provided further that all timber roads shall be constructed of permeable materials and shall be no wider than ten (10) feet. 2.6 Grazing. Grantors shall not graze or pashue domestic animals on the Easement Area for auy purposes. 2.7 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantors shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Property, including, but not limited to, hiking, picnicking, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land. Pursuit of wildlife by any form is not allowed. Grantors reserve the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Easement Area, including but not limited to the r~glrt to prohibit any recreational use thaC would pernlit destruction of other significant conservation value of the Easement Area. Page 4 of 14 ID Volpe Conservation Easement 11-14-03 draft (clean,) 2.8 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in atry manner except as necessary to allow a) the construction of the improvements allowed above, b) the maintenance of hiking trails permitted hereunder, c) the combating of erosion or flooding, and d) the construction of one pond not to exceed one acre in the approximate area identified on Exhibit B. 2.9 Destruction of Plants. Grantors shall have the right to cut and remove diseased trees, slu-ubs, or other plants, to cut and remove invasive (usually non-native) ri-ees, slu-ubs and other plants, and tc cut firebreaks. Grantors shall also have the right to cut and remove trees, sluubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting of native trees, sluubs or other plants. Except for use around improvements, there shall be no planting ofnon-native trees, sluubs, or other plants in the Easement Area. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction ofnon-native animals, or disturbance or change in the natural habitat in any mamier. 2.10 Water Ouality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Easement Area that would be detrimental to water purity or, except as specified herein, that could alter the natural water level or flow in or over the Easement Area. Other than the construction of a well to serve allowed improvements, there shall be no alteration, depletion or extraction of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies on the Easement Area. Diking, draining, filling or removal of wetlands is prohibited. 2.11 Si~rtaee. No signs or billboards or other advertising displays are allowed on the Easement Area except as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not significantly diminish the scenic character of the Easement Area maybe displayed to identify trails and the conservation values of the Easement Area, to identify the name and address of the Easement, to give directions, to advertise or regulate permitted uses on the Easement Area and prescribe rules and regulations for recreational use of the protected Easement Area, tc advertise the Easement Area for sale or rent, and to post the Easement F.rea against trespassers. 2.12 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as required to control invasive species detrimental to the conservation values of the Easement Area. 2,13 No DttmninQ. There shall be no storage or dumping of trash, garbage, abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous Page 5 of 14 Volpe Conser~r~ation Easement 11-24-0.3 draft (clean) substance, or toxic waste on the Easement Area, There shall be no changing of the topography tlm~ough the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2,14 Predator Controh Grantors shall have the right to control, destroy, or trap predatory and problem animals that pose a material tlueat to livestock and/or humans by means and methods approved by the Grantee. The method employed shall be selective and specific to individuals, r°ather than broadcast, nonselective techniques. 2,15 Conunercial Development, Any commercial or industrial use of or activity within the Easement Area is prohibited. This restriction on use shall not be construed to prohibit use of the Easement Area for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis. 2.16 Developi .neat Rights. With the exception of the right to construct and use buildings expressly authorized elsewhere in this Conservation Easement, Grantors convey to Grantee all development rights that are now or hereafter allocated to, implied, reserved or irIlrerent in the Easement Area, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or described, or to auy other property. 3. ADDITIONAL RIGHTS RETAINED SY GRANTORS, Grantors retain the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Easement Area not prohibited by this Conservation Easement, Prior to making any change in use of the Easement Area, Grantors shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the teens of this Conservation Easement. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is subject to the terms of this Conservation Easement. 4. GRANTEE'S RIGHTS. To accomplish the purpose of this Conservation Easement, the following rights are granted to Gratrtee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the teens of this Conservation Easement. (b) Right of Enty. Grantee, its employees, representatives, azid agents and its successors and assigns, have the right, after prior written notice to Grantors, to Page G of 14 is Volpe Cwrsernation Easement 11-14-0.3 draft (clean) enter the protected Easement Area at least once yearly for the purposes of: (a) inspecting the protected Easement Area to determine whether the Grantors, their' representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research, The right, but not the obligation, to monitor the native plant and wildlife populations, plant corrununities and natural habitats on the Easement Area, Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or others shall be reported to Grantors. Grantors agree that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantors or others shall be reparted to Grantee. (d) Management of Exotics and hrvasive Species. The right, but not the obligation, to conhol, manage or destroy exotic non-native species or invasive species of plants and animals that tlm~eaten the conservation values of the Easement Area. Grantee will consult with Grantors prior to implementing control activities.. Gruxtee shall, to the extent permitted by law and to the extent of coverage available from policies of insurance maintained by Grantee from time to time, 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 rnatmer from Grantee's exercise of any of its rights hereunder, 5. RESPONSIBILITIES OF GRANTORS AND GRANTEE NOT AFFECTED Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantors, or in any way to affect any existing obligation of the Grantors as owners of the Easement Area.. Among other things, this shall apply to: (a) Taxes -The Grantors shall be solely responsible for payment of all taxes and assessments levied against the Easement Area. (b) Upkeep and Maintenuxce -The Grantee shall have no obligation for the upkeep or maintenance of the Easement Area, The granting of this Conservation Easement shall not in and of itself be construed to create or impose upon the Grantors any obligation for the upkeep or maintenance of the Easement Area except to the extent elsewhere rewired by this Conservation Easement. 6. ACCESS. No right of access by the general public to any portion of the Easement Area is conveyed by this Conservation Easement. However, the public bas the right to Page 7 of 14 i ~~ Volpe Corrser^vatior: Easement 11-14-03 draft (clear:) view the Easement Area from adjacent publicly accessible areas such as public roads acid wateru+ays. 7, ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement, (a) With advance written notice the Grantee may enter the Easement Area for the purpose of inspecting for violations. If the Grantee finds a violation, it may, in its discretion, take appropriate legal action, Except when an ongoing or imminent violation could substantially diminish or' impair the conservation values of the Easement Area, the Grantee shall give the Grantors written notice of the violation and sixty (60) days to correct it (or begin good faith efforts to correct in the event the violation is something which camxot be reasonably corrected in sixty (60) days) before filing any legal actions. Grantee has the right to enforce the teens of this Conservation Easement by civil action, including the remedy of injunction, mandatory and prohibitory. The failure of the Grantee to discover a violation or to take inunediate legal action shall not bar it from doing so at a later time. (b) Grantee shall not bring any action against Grantors for airy injury or change to the Easement Area caused by third parties, or resulting from causes beyond the Grantors' control, including, without limitation, fre, flood, stone and naturally caused earth movement, or from any prudent action taken in good faith by the Grantors under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Easement Area or harm to the Easement Area resulting from such action. 8. TRANSFER OF EASEMENT.. The parties recognize and agree that the benefits of this easement are in gross and assignable, The Grantee shall have the right to transfer or assign this Conservation Easement to any qualified organization that, at the time of hansfer, is a "qualified organization" under Section 170(h) of the U.S. Internal Revenue Code and provided the organization expressly agrees to assume the responsibility imposed on the Grantee by this Conservation Easement, If the Grantee ever ceases to exist or no longer qualifies under Sec. 170(h) or applicable state law, a court with jurisdiction is hereby authorized to transfer this easement to another qualified organization having similar purposes that agrees to assume the responsibility, 9. TRANSFER OF EASEMENT AREA, Grantors shall notify Grantee, in writing, at least thirty (.30) days prior to any conveyance by Grantors of the Easement Area or any interest in the Easement Area, and the document of conveyance shall expressly refer to this Conservation Easement and, by its teens, the conveyance shall be made suUject to and subordinate to this Conservation Easement. 10. AMENDMENT OF EASEMENT, This easement maybe amended only with the written consent of Grantors and Grantee. Any such amendment shall be consistent with the Page 8 of 14 i~- Volpe Consen~ation Gasenrent 11-24-03 draft (clean) purposes of this Conservation Easement and shall comply with Sec, 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N.C, Gen, Stat, § 121-.34 et seq,, or any regulations promulgated pursuant to that law, The Grantors urd Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. TERMINATION OF EASEMENT. If it is determined by a court with ,jurisdiction that conditions on or surrounding the Easement Area have changed se much that it is impossible to fulfill the conservation purposes set forth above, a court with jurisdiction may, at the,joint request ofboth the Grantors and Grantee, terminate this Conservation Easement. If condenmation of a part of the Easement Area or of the entire Easement Area by public authority renders it impossible to fulfill any of these conservation purposes, the Conservation Easement may be terminated by a court with,jurisdiction. At the time of the conveyance of the Conservation Easement to the Grantee, this Conservation Easement gives rise to a real Easement Area right, inunediately vested in the Grantee. If the easement is terminated and the Easement Area is sold or taken for public use, then, as required by Sec, 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of the gross sale proceeds or condenmation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to the Grantors), equal to the ratio of the appraised value of this easement to the unrestricted fair market value of the Easement Area, as these values are deternrined on the date of this Conservation Easement. The Grantee shall use the proceeds consistently with the conservation purposes of this Conservation Easement. 12. INTERPRETATION. This Conservation Easement shall be interpreted under the laws of North Carolina, resolving any ambiguities and questions of the validity of specific provisions as to give maxinmm effect to its conservation purposes. 13. TITLE, The Grantors coveuarrt and represent that they are the sole owners and are seized of the Easement Area in fee simple and have good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages not subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, subject to any easements or eneumbrauces of record. 14. NOTICES. Any notices requit°ed by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantors and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. Page 9 of 14 i5 Volpe Conset~~atton Easement 11-24-0.3 draft (clemt) To the Grantors: To the Grantee: Marls and Lori Volpe Orange County Environment and 1717 Halls Mill Road Resource Conservation Department Hillsborough, NC 27278 Oraz~ge County, North Carolina P,O. Box 8181 Hillsborough, NC 27278 15. ENVIRONMENTAL CONDITION. The Grantors warrant that they have no actual larowledge of a release or threatened release of hazardous substances or wastes on the Easement Area. 16. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby, 17. PARTIES. Every provision of this Conservation Easement that applies to the Grantors or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. This Conservation Easement shall not be construed to benef t or to create any rights in any third parties, including but not limited to the general public. 18, RE-RECORDING, Tn order to ensure the perpetual enforoeability of the Conservation Easement, the Grantee is authorized to re-record this instnrment or any other appropriate notice or instrument.. 19, MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Easement Area. 20. SUBSEQUENT LIENS ON EASEMENT AREA. No provisions of this Conservation Easement should be construed as impairing the ability of Grantors to use the Easement Area as collateral for subsequent bon-owing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 21. EXHIBITS AND DOCUMENTATION. (a) Documentation Report. The parties acknowledge that the Baseline Report, a copy of which is on file at the offices of the Grantee, accurately establishes the uses, structures, conservation values and condition of the protected Easement Area as of the date hereof. See summary attached as Exhibit A. Page 10 of 14 i (p Volpe Conservation Easement 11-24-03 draft (clean) (b) Future Subdivision and Construction. Exhibit B is a GIS map and sketch showing the configuration of the property owned by the Grantors and the Easement Area that is the subject of this Conservation Easement. 22. ENTIRE AGREEMENT. This inshument 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. 2.3, ACCEPTANCE AND EFFECTIVE DATE. As attested by the Clerlc of the Grantee and the signature of its authorized representative affixed hereto, the Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Conservation Easement. This Conservation Easement is to be effective the date recorded in the Orange County Registry of Deeds. 24. ATTORNEY'S FEES. Tn cornrection with any litigation arising out of this Contract, the prevailing party shall be entitled to recover from the other party all costs incurred by it, including reasonable attorneys' fees, which shall include fees on appeal. TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee forever. IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their bands on the date first written above, GRANTORS: Marls _ Volpe Lori Volpe Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Page 11 of 14 f~ Volpe Conservation Easement ATTEST: Donna S, Baker, Cleric to the Board of Commissioner°s 11-24-03 draft (clean) Margaret W. Brown, Chair Orange County Board of Conunissioners Page 12 of 14 i~~ Volpe Conner°vation Easement Aclaiowledgments STATE OF NORTH CAROLINA COUNTY OF ORANGE 11-Z4-0.3 draft (clean) I, , a Notary Public in and for said County and State do hereby certify that and ,personally appeared before me this day and duly acla~owledged the execution of the foregone Conservation Easement. WITNESS my hand and notarial seal, this Day of 200_. (Seal) Notary Public My commission expires: (Notary Seal) NORTH CAROLINA COUNTY OF ORANGE I, a Notary Public of the County and State aforesaid, certify that Donna S. Balser personally came before me this day and aclaiowledged that she is Clerlc to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said Cowity, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerlc to said Board of Commissioners. Witness my hand and official stamp or seal, this the day of 200 Notary Public My commission expires: Page 13 of 14 i~ Volpe Consernation Easement 11-?4-0.3 draft (clemi) EXHIBIT A. BASELINE REPORT (S[.TMMARY) EXHIBIT B. GIS MAP AND SI{ETCH OF THE EASEMENT AREA Page 14 of 14 Conservation Easements Capital Project Ordinance ~~ Be it ordained by the Orange County Board of County Commissioners that pursuant to Section 13.2 of Chapter 159 of the General Statutes of North Carolina, the following capital project is hereby adopted,. Section 1. The project authorized provides funds for the acquisition of conservation easements to help preserve County farmland with a priority placed on farms with a strong conservation track record in water supply watersheds, Financing for the project includes proceeds from private placement loans and federal grant funds from the USDA Natural Resource Conservation Service. Section 2. The officers of the County are hereby directed to proceed with the project within the budget contained herein, Section 3. The following revenue is anticipated to complete this project: Through FY 2002-03 FY 2003-04 Through FY 2003-04 Sales Tax $0 $0 $0 Bond Funds $0 $0 $0 Private Placement $1,000,000 _ $0 $1,000,000 Grant Funds $784,155 $0 $784,155 Fees $0 $0 $0 Other $0 $0 $0 Total Funding $1,784,155 $0 $1,784,155 Section 4. The following amount is appropriated for this project: Through FY 2002-03 FY 2003.04 Through FY 2003.04 Land/Building: Walters Easement $386, $386, Vdpe Easement $0 $73,100 $73,1 Unallocated $1,784,155 ($459,945) $1,324,21 Totall.andlBuilding $1,784y155 $0 $1,784,155 Design $0 $0 $0 Construction $0 $0 $0 _ Other $0 ~ $0 $0 Total Costs ~ $1,784,155 ~ $0 $1,784,155 Section 5. This ordinance supersedes all previous Conservation Easement Capital Project Ordinances for Orange County. Section 6. This ordinance shall be in effect from the date of adoption until June 30, 2005 Adopted this 1st day of December 2003,