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HomeMy WebLinkAboutOTHER-2021-055-Deed of Trail Easement Attachment 3 I IP. (f'Pf 1 ' it I; t' t t,. This instrument prepared by and return to : John L . Roberts , Office of the Orange County Attorney Box 8181 , Hillsborough, NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE PIN 9831842137 DEED OF TRAIL EASEMENT This Deed of Trail Easement ("Easement") is granted on this day of btr , 2021 , by CARL M. SHY and EVE CAROL SHY, husband and wife , having an address of 6626 Bradshaw Quarry Road, Efland, NC 27243 (referred to as " Grantors ") , to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181 , Hillsborough, NC 27278 , (referred to herein as " Grantee") . The Grantor and Grantee are collectively referred to as " The Parties " . ,; The designation Grantors and Grantee as used herein shall include said parties , their heirs , successor and assigns , and shall include singular, plural , masculine , feminine or neuter as required by context . i RECITALS I i 1% A . Grantors are the sole owner in fee simple of certain real property situated, lying, and being in Orange County, North Carolina, being more particularly described in that deed recorded in Deed Book 473 5 , Page 72 , Orange County Registry, North Carolina (hereinafter, the "Property») B . Grantee is an entity qualified to accept, hold and manage land and easements under the North Carolina Conservation and Historic Preservation Agreements Act, Chapter 121 , Article 4 of the North Carolina General Statutes (the "Act") , which authorizes and permits the creation and enforcement of conservation easements for the purpose of, inter alia, retaining land areas predominantly in their historic, agricultural , natural , scenic , open or wooded condition . Co Pursuant to the Act, Grantors desire to grant a trail easement over a certain portion of the Property, consisting of 1 . 6 acres , more or less , is the subject of this Easement and is marked on i the plat of survey recorded in Plat Book , Page , Orange County Registry, and described in Exhibit A attached hereto and incorporated herein by this reference (hereinafter referred to as the " Trail Area") within which a trail, parking area, and trail amenities (hereafter referred to as the " Trail and Amenities ") may be constructed, thereby restricting and limiting the use of the Trail Area to the terms , conditions and purposes hereinafter set forth, and Grantee is willing to accept such easement . i D . Grantor and Grantee understand that the Trail Area overlaps with an existing conservation easement described in the " Conservation Easement" recorded in Book 2757 , Page ';. 110 , Orange County Registry, and is further identified as Lot 1 -R (consisting of Lots 1 -A and 1 Now B ) and Lot 2 on the plat of property titled "Property of Carl M . Shy and Eve Carol Shy, " prepared by ENT Land Surveys , Inc . , which plat is recorded at Plat Book 90 Page 2 , Orange County Registry . The Trail Area is restricted and limited in use in accordance with the terms and conditions of this easement as well as the Conservation Easement as amended by "Amendment to Conservation Easement" recorded in Book 5894 , Page 30 , Orange County Registry and as amended by "Amendment to Conservation Easement" recorded in Book , Page , Orange County Registry . E . By restricting and limiting the use of the Trail Area in accordance with the terms and conditions of this Easement, the Parties intend to preserve the natural features and resources of " the Trail Area; protect the habitat of native plants and animals ; sustain scenic values ; maintain water quality and utilize the Trail Area for public educational, scientific and low-impact recreational pursuits (said purposes being hereinafter referred to as the " Conservation Values ") . 4. F . The Parties acknowledge and agree that (1) the recording of this Easement shall be conclusive evidence of its acceptance of same by Grantee ; (ii) Grantee will be the "holder" (as that term is defined in the Act) of this Easement and (iii) Grantee is a " qualified organization" f and " eligible donee " within the meaning of Section 170 (h) (3 ) of the Internal Revenue Code (the " Code") and regulations promulgated thereunder . G . Grantee intends to include the Trail and Amenities as part of the North Carolina Mountains -to - Sea Trail and Grantors and Grantee agree that such inclusion grants the Grantee , and its agents or representatives , the right to establish a trail , parking area, and trail amenities for use by the general public within the Trail Area, H . The undersigned Grantee acknowledges that Grantors have donated the easement contained herein over the Trail Area in accordance with the provisions of Article V of this Easement . I . The Parties acknowledge and agree that as a component of the North Carolina Mountains -to - Sea Trail , the Trail Area, in accordance with Chapter 143B , of the North Carolina General Statutes , shall be subject to a general management plan devised by the North Carolina Department of Natural and Cultural Resources ("NCDNCR") . NOW, THEREFORE, for the reasons given and other good and valuable consideration and in consideration of their mutual covenants , terms , conditions and restrictions contained - 2 - k t FF herein, Grantors hereby voluntarily grant and convey to Grantee , its successors or assigns , and Grantee , its successors or assigns , hereby voluntarily accepts , forever and in perpetuity an Easement on the Property, which Easement is an immediately vested interest in real property of the nature and character described herein, and a right- of-way over, under, and across the Trail ill not perform, nor knowingly allow others to perform, any Area . Grantor promises that they w act on or affecting the Trail Area that is inconsistent with the covenants contained herein . Grantors authorize Grantee to enforce these covenants in the manner described below. r ARTICLE I. GENERAL t 1 . 1 . Statement of Purpose . The purposes of this Easement are to prevent any use of the Trail Area that will significantly impair or interfere with the Conservation Values and to allow for the inclusion of the Trail Area in the North Carolina MountainAo - Sea Trail so that the Trail Area may be used for educational, scientific and low-impact recreational activities by the general public pursuant to a general management plan that is consistent with the Conservation Values . Grantors intend that this Easement will restrict the use of the Trail Area to such activities as are consistent with these purposes . Grantee agrees that this Easement shall be held exclusively for the purposes set forth herein and as specified in Section 170 (h) (4 ) (A) (or any successor section) of the Code and shall be construed to promote the purposes of the Act . ! 1 . 2 . Perpetual Duration . This Easement over the Trail Area as further described in Exhibit A, c: shall be perpetual . It is an easement in gross , runs with the land, and is enforceable by Grantee against Grantors as provided herein, and against Grantors ' representatives , successors , assigns , leases , agents and licensees . 1 . 3 . Compliance with other Regulatory Requirements . Both Parties are responsible for complying with any and all additional permits or regulation to use or develop the Trail Area under the terms of this Easement, including Orange County, State of North Carolina or Federal requirements , regardless of any reserved rights or permissions contained in this Easement document . ARTICLE II . RESERVED RIGHTS OF GRANTORS I Subject to the terms , conditions and restrictions contained herein, Grantors reserve for itself and its successors and assigns the following rights : j: 2 . 1 . Quiet Enjoyment . All rights accruing from Grantors ' fee ownership of the Trail Area, including the right to engage in or permit or invite others to engage in all uses of the Trail Area that are consistent with the Conservation Values , including any reasonable use of the Property that will not interfere with the Trail and Amenities and is not otherwise prohibited by the terms of this Easement . 2 . 2 . Educational and Recreational Uses . Utilization of the Trail Area for scientific, educational and low-impact recreational activities to the same extent the Trail Area is utilized by Grantee for such purposes ; specifically, Grantors retain the right to engage in and permit others to engage in such activities that may include, without limitation, walking, hiking, plant and animal observation and study . - 3 - 6) L+' Pr 6 2 . 3 . Vegetation Removal . Cutting or clearing of vegetation for insect or disease control , L control of non-native plants , removal of trees that threaten to fall on the Trail Area or on land outside the boundaries of the Trail Area; Grantors do not assume any responsibility or liability to 1% the general public for failing to do so . F 2 . 4 . Fencing . Grantors may install fencing, at Grantors ' expense , along the perimeter of the Trail Area, not to exceed five ( 5 ) feet in height and constructed of post- and-rail or other open weave construction that preserves scenic views from the Trail and Amenities . Grantors shall not, through fencing or any other means , methods , or materials , impede access to or discourage use of the Trail and Amenities . 2 . 5 . Transfer . Grantors retain the right to sell, give , mortgage , lease, or otherwise convey the Trail Area subject to the terms of this Easement . 1 ARTICLE III . RESERVED RIGHTS OF GRANTEE a Grantors are not responsible for costs associated with construction and maintenance of the Trail and Amenities or improvements or accessory facilities of the Trail and Amenities . Grantee reserves for itself and its successors and assigns the following rights : 3 . 1 . Improvements . Grantee reserves the right to construct a trail as follows : L (a) The Trail shall be constructed of a pervious surface , no more than four (4 ) feet in trail width and in accordance with best management practices to minimize soil erosion and water quality impacts . (b) The Trail may be covered, if at all , by wood chips , gravel , or other porous surface . (c) The Trail may include steps and railings and other trail surface structures necessary to facilitate safe passage . i 3 . 2 . Parking Area Improvements . Grantee reserves the right to construct parking area improvements consisting of a driveway and parking area for no more than ten ( 10 ) cars located within the area marked as "AREA P " on the Plat recorded in Plat Book , 4a Page of the Orange County Registry and attached to this easement document as Exhibit A provided that such construction meets all applicable setback, zoning and construction regulations . 3 . 3 . Trail Amenities . Grantee reserves the right to add the following to the Trail Area : (a) A reasonable number of benches . (b) Signs to mark the Trail and provide information regarding applicable time , place, and manner restrictions . (c) Signs for interpretive purposes and to indicate the interest of Grantee in the Trail Area . (d) Fencing, gates and barriers to control access . (e) Portable toilet, composting toilet system, vault privy system, or similar at or near the parking area as described herein in section 3 . 2 - 4 - r' f ARTICLE IV, PROHIBITED AND RESTRICTED ACTIVITIES Any activity on, or use of, the Trail Area inconsistent with the purposes of this Easement is prohibited . Other than as provided herein, the Trail Area shall be maintained in its natural , scenic , wooded and open condition and restricted from any use that would impair or interfere with the Conservation Values or the purposes of this Easement . Except for those rights specifically reserved to Grantors in Article II and without limiting the generality of the foregoing, the following activities and uses are expressly prohibited or restricted as indicated : 4 . 1 . Trail Area Use . Access to the Trail Area by the general public is subject to the following limitations : (a) The Trail may be used only for walking, nature study, and the like . (b) Use is limited to the hours between dawn and dusk . (c) Smoking or lighting of fires is prohibited . (d) Consumption of alcoholic beverages is prohibited . (e) Trapping or hunting is prohibited . 4 . 2 . Mechanized Vehicles . There shall be no use of motorized or mechanized vehicles on the Trail Area except within the Parking Area Improvements as described herein in Section 3 . 2 and as necessary for the construction, maintenance , operation and management of the North Carolina MountainsAo - Sea Trail . Bicycles are considered to be mechanized vehicles for the purposes of this Easement . 4 . 3 . Industrial or Commercial Use : Industrial and commercial activities are prohibited in the Trail Area , 4 . 4 . Residential Use , Structures , and Signs . There shall be no residential use of the Trail Area. There shall be no constructing or placing of any building, mobile home, billboard or other advertising display, antenna, utility pole , tower, conduit line , or any other temporary or permanent structure or facility on or above the Trail Area except for the following : underground utilities such as water, sewer, electric , fiber optic cable or other communication and internet providing lines , bathroom facility, placement and display of no trespassing signs , local, state or federal traffic or similar informational signs , boundary fencing, signs identifying the Conservation Values of the Trail Area, and/or signs identifying Grantors as owner of the Property and Grantee as holder of this Easement, signs identifying the Trail Area as a part of the North Carolina MountainsAo - Sea Trail , signs giving directions or prescribing rules and regulations for the use of the Trail Area, educational and interpretative signs , identification labels or any other similar temporary or permanent signs . 4 . 5 . Agricultural , Timber Harvesting , Grazing and Horticultural Use . Agricultural , timber harvesting, grazing, horticultural and animal husbandry operations are prohibited ; provided that this provision shall not prohibit plantings for wildlife habitat or wildlife management . - 5 - P I, 4 . 6 . Disturbance of Natural Features , Plants and Animals . There shall be no cutting or removal of trees , or the disturbance of other natural features on the Trail Area except for the following : (1) as incidental to boundary marking or fencing as allowed hereunder ; and (ii) cutting or clearing of vegetation for insect or disease control , control of non-native plants , removal of trees that threaten to fall on the Trail Area or on land outside the boundaries of the Trail Area and as necessary for the construction, maintenance, operation and management of the North Carolina Mountains -to - Sea Trail and Amenities . Design and construction of the Trail and Amenities will be planned and built to minimize environmental impacts to the extent practical . Trees that fall within the Trail Easement area as a result of natural cause or "Acts of God" , and c idered within the parameters of Section 6 . 2 "Upkeep obstruct passage through are hereby cons and Maintenance " , and removal from the Trail Easement Area will be the sole responsibility of the Grantee . 4 . 7 . Wetlands and Water QualitX . 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 Trail Area or into any surface waters , or cause soil degradation or erosion nor diking, dredging, alteration, draining, filling or removal of wetlands , except activities for the above and activities to restore natural hydrology or wetlands enhancement as permitted by Grantee and appropriate governmental authorities . 4 . 8 . Dumping and Filling . The dumping, accumulation, storage, or burying of soil , trash, ashes , garbage, waste, appliances , abandoned or unlicensed vehicles , inoperable or broken machinery, debris , junk, radioactive or hazardous waste , or other materials on the Trail Area is ilers , machinery and recreational vehicles shall not be stored on the prohibited . Automobiles , tra Trail Area . 4 . 9 . Mineral Use , Excavation, Dredging . There shall be no filling, excavation, dredging, { mining or drilling ; no removal of topsoil , sand, gravel, rock, peat minerals or other minerals , and il Area in any manner except as reasonably necessary for no change in the topography of the Tra the purposes of combating erosion and as reasonably necessary for any activities otherwise i l Area pursuant to the terms of this Easement , permitted on the Tra r ARTICLE V. FEDERAL TAX ITEMS 5 . 1 . Qualified Conservation Contribution . The Easement granted under this agreement has been donated in whole or in part to Grantee by the undersigned Grantors . It is intended to qualify as a charitable donation of a partial interest in real estate (as defined under § 170 (f) (3 ) (B ) (iii) of the Code) to a qualified organization (as defined in § 1 . 170A- 14 (c) ( 1 ) of the Regulations) . 5 . 2 . Definitions of Code and Regulations . " Code " means the Internal Revenue Code of 1986 , as amended through the applicable date of reference . "Regulations " mean the provisions of C . F . R. § 1 . 170A- 14 as amended through the applicable date of reference . - 6 - i 5 . 3 . Public Benefit . This easement is given for public outdoor recreation and education and is for the substantial and regular use of the general public or the community . This Easement provides significant public benefit as defined in § 1 . 170A44 (d) (2) (i) of the Regulations . Public policies and programs that illustrate and support the significant public benefit of this Easement include : f (a) The 2030 Orange County Comprehensive Parks and Recreation Master Plan, which recommends the development of a master plan for the Orange County segment of the Statewide Mountains -to - Sea Trail as well as linking to the priorities set forth in the existing North Carolina State Trails Program ; and (b) The Orange County Board of Commissioners ' goal (adopted June 21 , 1999 ) to identify and coordinate the preservation of the County ' s most significant natural areas ; and (c) The Land Use Element of the Orange County Comprehensive Plan (adopted November 18 , 2008 ) with its goal of "Land uses that are appropriate to on- site environmental conditions and features , and that protect natural resources , cultural resources , and community character; " and (d) The Orange County Lands Legacy Action Plan, which was adopted by the Orange County Board of Commissioners on December 12 , 2017 , and which sets an objective to acquire key parcels needed for a public pedestrian trail and wildlife corridor that would connect Hillsborough Riverwalk to the Haw River for the planned North Carolina Mountains -to - Sea Trail ; and (e) N . C . G . S . § 113 - 34 . 1 authorizing the Department of Environment and Natural Resources to develop and maintain the North Carolina Mountains -to - Sea Trail, of which this easement will be a part . 5 . 4 . Mineral Interests . No Person has retained a qualified mineral interest in the Trail Area of a nature that would disqualify the Easement for purposes of § 1 . 170A44 ( g) (4) of the Regulations . 5 . 5 . Notice Required Under Regulations . To the extent required for compliance with § 1 . 170A- 13 ( g) (4) (11) of the Regulations , Grantors agree to notify Grantee before exercising any reserved right that may have an adverse impact on the conservation interests or public recreational purposes associated with the Trail Area. 5 . 6 . Trail Area Right . In accordance with § 1 . 170A4 4 (g) ( 6) of the Regulations , the undersigned Grantors agree that the Easement granted under this agreement gives rise to a property right, immediately vested in the Grantee, that entitles the Grantee to compensation upon extinguishment of the easement . The fair market value of the property right is to be determined in accordance with the Regulations ; i . e . , it is at least equal to the proportionate value that this easement as of the Easement Date bears to the value of the Property as a whole as of the Easement Date . Grantee must use any funds received by application of this provision in a manner consistent with the recreational and conservation purposes of this Easement . 5 . 7 . Qualification Under § 2031 ( C) of the Code . To the extent required to qualify for exemption from federal estate tax under § 2031 (c) of the Code , and only to the extent such - 7 - activity is not otherwise prohibited or limited under this Easement, Grantors agree that commercial recreational uses are not permitted within the Trail Area. i ARTICLE VI . ONGOING RESPONSIBILITY OF GRANTORS AND GRANTEE This Easement is not intended in any way to affect any existing obligation of the Grantors as I owner of the Property . Among other things , this shall apply to : r 6 . 1 . Taxes . Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Property . If Grantee is ever required to pay any taxes or assessments on their interest in the Property, Grantors shall upon demand reimburse Grantee for the same . 6 . 2 . Upkeep and Maintenance . Trail Area shall be maintained so as to not interfere with the intended use of the trail and amenities . i a . Grantors shall continue to be solely responsible for the upkeep and maintenance of the Trail Area apart from the trail and amenities . Grantee shall have no obligation for the upkeep or maintenance of the Trail Area, except as described herein . b . Grantee shall be solely responsible for construction, upkeep , and maintenance of the I Trail and Amenities , except as described herein . Grantee shall make periodic inspections to ensure the upkeep and maintenance of the Trail and Amenities . Upon notice from Grantors of any upkeep or maintenance issue, Grantee shall make additional inspection and plan of remediation . Such plan of remediation shall occur within one year of notice . 6 . 3 . Transfer of Trail Area . Grantors agree to incorporate by reference the terms of this Easement in any deed or other legal instrument by which they transfer or divest themselves of any interest, including leasehold interests , in the Trail Area . Grantors shall notify Grantee in writing at least thirty (30 ) days before conveying the Trail Area, or any interest therein . Failure of Grantors to do so shall not impair the validity of the Easement or limit its enforceability in any way . 6 . 4 . Transfer of Easement . Grantee shall have the right to transfer this Easement to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under 26 U . S . C . Section 170 (h) of the Internal Revenue Code , as amended and under NGS 121 - 34 et seq . , provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Easement . As a condition of such transfer, Grantee shall require that the conservation purposes intended to be advanced hereunder shall be continued to be carried out . If Grantee ever cease to exist or no longer qualify under 26 U . S . C . Section 170 (h) of the Internal Revenue Code , or applicable state law, a court with jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by the Easement . - 8 - I; 4 l r, r 6 . 5 . Inspection and Access . With reasonable advance notice to the Grantors or with Grantors ' prior verbal consent, Grantee , their employees and agents , successors and assigns , shall have the F right to enter the Trail Area for the purpose of inspecting the Trail Area to determine whether j Grantors , their successors or assigns are complying with the terms , conditions and restrictions of this Easement . 6 . 6 . Enforcement . Grantee shall have the responsibility for management, monitoring and enforcement of the terms of this Easement . Grantee shall complete and file the monitoring reports , a copy of which is kept on file with Orange County . Grantee shall have the right to prevent violations and remedy violations of the terms of this Easement through judicial action, which shall include , without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this j Easement . Except when an ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of the Trail Area, Grantee shall give Grantors written notice of the violation and Grantors shall have thirty (3 0) days to cure the violation, before commencing any legal proceedings . If a court of competent jurisdiction determines that a violation may exist or has occurred, Grantee may obtain an injunction to stop the violation, temporarily or permanently . The parties agree that a court may issue an injunction or order requiring Grantors to restore the Trail Area to its condition prior to the violation, as restoration of the Trail Area may be the only appropriate remedy . The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time . In any case where a court finds no such I violation has occurred, each party shall bear its own costs . In any case where the Court finds that a violation has occurred, Grantee shall have the right to recover its legal costs from Grantors , j including attorney ' s fees or expenses associated with any enforcement or remedial action as it relates to the enforcement of this Easement . ARTICLE VII . REPRESENTATIONS OF THE PARTIES 7 . 1 . Grantors ' Title Warranty . Grantors covenant, represent and warrant (1) that it is the sole owner and is seized of the Trail Area in fee simple and has the right to grant and convey this Easement ; (ii) that there is legal access to the Trail Area; (iii) that the Trail Area is free and r; clear of any and all encumbrances , except those permitted title exceptions listed on Exhibit B , attached hereto and incorporated herein by this reference , none of which would nullify, impair or limit in any way the terms or effect of this Easement ; (iv) Grantors shall defend its title to the Trail Area against the claims of all persons whomsoever ; and (v) Grantors covenant that Grantee , its successors and assigns , shall have the use of and enjoy all of the benefits derived from and arising out of this Easement . 7 . 2 . Grantors ' Environmental Warranty . Grantors know of no release or threatened release of any Hazardous Materials on, at, beneath or from the Trail Area, or arising from or connected with a violation of any Environmental Laws . Grantors hereby promise to hold harmless and indemnify Grantee against all litigation, claims , demands , penalties and damages , including reasonable attorneys ' fees , arising from or connected with the release or threatened release by - 9 - cc I' Grantors , their agents , assigns , and guests , of any Hazardous Materials on, at, beneath or from the Trail Area, or arising from or connected with a violation of any Environmental Law. "Environmental Law" or ` Environmental Laws " means any and all Federal, state , local or municipal laws , rules , orders , regulations , statutes , ordinances , codes , guidelines , policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste , hazardous materials , worker and community right-to -know, hazard communication noise , radioactive material , resource protection, subdivision, inland wetlands and watercourses , health protection E and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect . i "Hazardous Materials " means any petroleum, petroleum products , fuel oil, waste oils , explosives , reactive materials , ignitable materials , corrosive materials , hazardous chemicals , I hazardous wastes , hazardous substances , extremely hazardous substances , toxic substances , toxic chemicals , radioactive materials , infectious materials and any other element, compound, mixture , solution or substance which may pose a present or potential hazard to human health or the environment . c 7 . 3 . Liability . Grantors have entered into this Easement in order to make the Trail Area available to the public for recreational and educational purposes as contemplated by Chapter 38A and Section 14313435 . 118 of the North Carolina General Statutes and therefore is afforded the statutory limitations upon liability of an " owner" under those provisions as they may be amended from time to time . 1 ' ARTICLE VIII . MISCELLANEOUS 1% 8 . 1 . Recording . Grantee shall record this instrument in a timely fashion in the official record of Orange County, North Carolina, and may re -record it at any time as may be required to I preserve the rights of the Grantee . 8 . 2 . Survival of Terms/Merger of Fee and Easement . Grantors and Grantee agree that the terms of this Easement shall survive any merger of this fee and easement interest in the Trail Area. In the event Grantee becomes owner of the Trail Area, or any portion thereof, Grantee shall transfer its rights title and interest in this Easement to a third party in accordance with sections 6 . 4 . 8 . 3 . Amendment of Easement . This Easement may be amended only with the written consent of the Grantors and Grantee . Any such amendment shall be consistent with the purposes of this Easement and shall comply with Sec . 170 (h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section . Any such amendment shall also be consistent with L the Uniform Conservation and Historic Preservation Agreements Act, N . C . G . S . Section 121 - 34 et seq. , or any regulations promulgated pursuant to that law. The Grantors and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Easement . 8 . 4 . Procedure in the Event of Termination of Easement . If the North Carolina Mountains -to - Sea Trail is not routed through the Trail Area within ten ( 10) years of the execution of this Easement at the Grantors request, this Easement may be terminated . If it is determined that conditions on or surrounding the Trail Area have changed so much that it is impossible to fulfill the conservation purposes set forth above , a court with jurisdiction may, at the Grantors request, terminate this Easement . il Area or of the entire Property by public authority If condemnation of a part of the Tra renders it impossible to fulfill any of these conservation purposes , the Easement may be terminated through condemnation proceedings . 8 . 5 . Interpretation . This Easement shall be interpreted under the laws of the State of North Carolina, resolving any ambiguities and questions of the validity of specific provisions so as to give maximum effect to its conservation purposes . 8 . 6 . Perpetual Duration ; Severability . The Easement created by this Deed shall be a servitude running with the land in perpetuity . Every provision of this Deed of Trail Easement that applies to the Grantors or the Grantee shall also apply to their respective agents , heirs , executors , administrators , assigns , and all other successors as their interests may appear . Invalidity of any of the covenants , terms or conditions of this Easement, or any part thereof by court order or judgment shall in no way affect the validity of any of the other provisions hereof, which shall remain in full force and effect . 8 . 7 . Subsequent Liens on the Trail Area . No provision of this Easement should be construed as impairing the ability of Grantors to use the Trail Area as collateral for subsequent borrowing . Any such liens shall be and remain subordinate to this Easement . 8 . 8 . Subsequent Easements/Restrictions on the Trail Area . The grant of any easement or use restriction that might diminish or impair the Conservation Values of the Trail Area is prohibited . Any such easement or restriction shall be subordinated to this Easement . 8 . 9 . Notices . Any notices required by this Easement shall be in writing and shall be personally delivered or sent by first class mail to Grantors or Grantee respectively, at the following address , unless a party has been notified in writing by the other of a change of address . To the Grantors : To the Grantee : Carl and Eve Shy Orange County DEAPR 6626 Bradshaw Quarry Road PO Box 8181 Efland, NC 27243 Hillsborough, NC 27278 Ann Shy, 1111 Castell Lane Efland, NC 27243 - 11 - �r 8 . 10 . Entire Agreement . This instrument sets forth the entire agreement of the Parties with respect to the Easement and supersedes all prior discussions , negotiations , understandings or agreements relating to the Easement . If any provision is found to be invalid, the remainder of the provisions of this Easement, and the application of such provision to persons of circumstances other than those as to which it is found to be invalid, shall not be affected thereby . 8 . 11 . Availability or Amount of Tax Benefits . Grantee make no warranty, representation or ilability, amount or effect of any deduction, credit or other other assurance regarding the ava benefit to Grantors or any other person or entity under United States or any state , local or other tax law to be derived from the donation of any part of the value of this Easement or other transaction associated with the donation of this Easement . Grantors ' donation is not conditioned ailability or amount of any such deduction, credit or other benefit . Grantee makes no upon the av warranty, representation or other assurance regarding the value of this Easement or of the Trail Area . As to all of the foregoing, Grantors are relying upon Grantors ' own legal counsel , accountant, financial advisor or other consultant and not upon Grantee ' s legal counsel , accountant, financial advisor or other consultant of Grantee . In the event of any audit or other inquiry of a governmental authority into the effect of this donation upon the taxation or financial affairs involving Grantors or Grantors ' heirs , successors or assigns or other similar matter then Grantee shall be reimbursed and indemnified for any cost or expense of any kind or nature whatsoever incurred by Grantee in responding or replying thereto . c 8 . 12 . Warranties and Representations of Owner . By signing this Easement, Grantors acknowledges , warrants and represents to Grantee that : i (a) Grantors have had the opportunity to be represented by counsel of Grantors ' choosing and fully understand that Grantors are hereby permanently relinquishing property rights which would otherwise permit Grantors to have a fuller use and enj oyment of the Trail Area . (b) There are no recorded or unrecorded leases or other agreements for the production of minerals or removal of timber from the Trail Area which would, if any of the activities permitted under such lease or other agreement were undertaken by Grantors , violate the covenants or restrictions in this Easement or otherwise defeat the conservation Purpose . TO HAVE AND TO HOLD this Deed of Conservation Easement unto Grantee , their successors and assigns , forever . - 12 - i f. i r! IN WITNESS WHEREOF , the Grantors and Grantee, intending to legally bind themselves , { have set their hands on the date first written above . GRANTORS * Carl M . Shy Eve Carol Shy Accepted : GRANTEE : ORANGE COUNTY, NORTH CAROLINA 0. By : Renee Price Chair Orange County Board of Commissioners ATTEST . By : Laura Jensentlerk to the Board of Commissioners �'4rt HIaco���� - 13 - Irf 'I P E; is i e 4y, Acknowledgments f i NORTH CAROLINA f COUNTY OF ORANGE i I, , a Notary Public for said County and State do hereby certify that personally appeared before me and acknowledged the due execution of the foregoing instrument . C' I Witness my hand and official stamp or seal this the day of , 2021 . I, c Notary Public My commission expires . c f NORTH CAROLINA COUNTY OF ALAMANCE I , I ava Dayii e11�, a Notary Public of Alamance County, North Carolina do hereby s certify that Laura Jensen personally appeared before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its name by the Chair of the Orange County Board of Commissioners , and attested by her as Clerk to said Board of Commissioners . Witness m hand and official stamp or seal this the 1�� day of Nov �. y gyr , 2021 . E Y p Y I Notary Public lA My commission expires ® �p 110 7z 4tv, co CE t tj f - 14 -