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HomeMy WebLinkAboutAgenda - 09-07-2005-6aORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 7, 2005 Action Agenda Item No.?a SUBJECT: Resolution for Purchase of Conservation Easement- Dr. Charles Keith DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENT Draft Resolution Vicinity Map Property Map Draft Conservation Easement 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 for land owned by Dr. Charles Keith to protect natural area and open space associated with Pickard's Mountain and Morgan Creek (Bingham Township). BACKGROUND: The Lands Legacy Program 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 the purchase or donation of conservation easements. The types of protected land include parkland, natural areas and wildlife habitat, riparian buffers, prime farmland, and historic and cultural sites. Orange County has protected 1,579 acres since the inception of Lands Legacy (April 2000). Dr. Charles Keith owns 81 acres at the end of Marion's Ford Road (off Dairyland Road) in Bingham Township. Formerly farmland owned by the Lloyd family, Dr. Keith and his wife Barbara (deceased) acquired the land in 1963. A vicinity map is provided as Attachment 2.. Beginning in early 1980s, the Keiths planted a remarkable variety of trees and shrubs from around the country and other parts of the world. Today, it is said to be one of the largest arboretums east of the Mississippi River, with an estimated 5,000 different species. Dr. Keith hosts visitors from around the country to tour his collection. Visitors are intrigued by the large variety of trees and by the fact that no pesticides are used on the property. The only herbicide in use is Roundup for controlling grass around the base of trees. z The property is comprised of four adjacent tracts (Attachment 3). The Keith residence - a restored 1830s log cabin - and the Arboretum are located on a 19-acre parcel (Tract A). Tracts B, C and D are entirely wooded and undeveloped. Dr, Keith already donated a conservation easement on 45 acres (Tract D) to the Triangle Land Conservancy. He is now interested in putting the remaining 36 acres of the property under easement (Tracts B, C and D). Dr. Keith has agreed to "sell" the conservation easement to Orange County at a bargain price of $108,000 ($3,000 per acre), which is well below the $406,800 appraised value of the conservation easement ($11,300 per acre). The purchase price would help fund a stewardship endowment for a nonprofit foundation that Dr. Keith has established for the long-term care of the Arboretum. ERCD staff and the County Attorney have worked with Dr. Keith (and in coordination with the Triangle Land Conservancy) to craft an easement that meets his needs and the County's interests, Future development rights would be relinquished, with the exception of potential walking trails and a potential future visitor/educational center and maintenance buildings for the Arboretum (restricted to Tract A). Tracts B and C would remain entirely undeveloped. The conservation easement would help protect the Keith Arboretum, the undeveloped woodlands, and the Morgan Creek headwater streams located on the property, Dr. Keith is one of five landowners in this immediate area to have granted conservation easements on their land, This project would increase the protected farm and forestlands associated with the Pickard's Mountain area from 479 to 515 acres. Finally, the Triangle Land Conservancy has proposed assigning its easement on Tract D to the County-thereby putting all easements under the responsibility of a single easement Grantee. That proposal would be brought back to the Board for consideration at a later date. FINANCIAL IMPACT: The negotiated purchase price of the conservation easement for Orange County is $108,000 ($3,000 per acre). The County would also pay an estimated $8,000 in transaction costs, including a boundary survey. The Environment and Resource Conservation Department (ERCD) would monitor the property on an annual basis and help to enforce the development restrictions, The County costs (estimated $116,000) would come from the Lands Legacy Opportunities Fund. The Budget Office will bring a Capital Project Ordinance forward in an upcoming budget amendment abstract. 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, ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of a Conservation Easement Between Orange County and Dr. Charles Keith 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 University Lake watershed, which provides drinking water to the residents of Chapel Hill and Carrboro; 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, Dr. Charles Keith owns 81 acres of land adjacent to Pickard's Mountain and including headwaters of Morgan Creek within the University Lake Protected Watershed; and WHEREAS, Dr. Keith has already protected 45 acres of the property with a conservation easement that he granted to the Triangle Land Conservancy; and WHEREAS, Dr. Keith wishes to permanently protect the remaining 36 acres of the property, which includes a restored 1830s log cabin, an Arboretum and undeveloped forestland; and WHEREAS, a conservation easement provides a win-win scenario - ensuring the preservation of this private property for future generations and providing some level of financial compensation to Dr. Keith; 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 owned by Dr. Charles Keith that is described in the conservation easement agreement; 2) approve the execution of this conservation easement agreement with Dr. Charles Keith, 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 November 30, 2005. BE IT FURTHER RESOLVED that the Board thanks Dr. Keith for his civic-minded interest in pursuing this conservation easement through the County's Lands Legacy Program.. This the 7m day of September, 2005 Moses Carey Jr., Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board :+tli'i o ?I I'r; -_:: I I f Ili I ,;v1) III iI't\ cJr G?_--? rJ pi?j I I i (-' - Pickards Mountain /F Natural Area _j T fD r? T i ?? i , z Bolin Creely I I ?? - 4-7 jv' IA; ? ??.•Al CC---- ????`/?? tQ, 13 jI? a / t Dr. Charles Keith a Keith Boundary 81 acres /Q, Natural Areas u u 0 Parcel Boundary + '' . <. 5treets County t o b n 30U'[C ^t/ streams 1000 1000 2000 Flat E? .fw Coi J.. 0 m COM1SerVa}IOn Easemen}PrOP¢PtIPS MSorcs B/30/05 30/05 y ? O r / 3V FN \ N q? N ?O I \ / \\ t'GJ C \ ® mac.€0 20 t \ \ cu wyvv\ o V A? \ c m o W ,' mp -- \ \\ \ \ \\ \ \\\ \ \?\\ \\\ \\\? \ \ \\ \\\\ \ \,,? O O N a c? c E? E +'C-? -O U N N ? N Y m ?vv dS uS IL U) ®01D V<. Draft 8129105 (BOCC) 6 This instrument prepared by and return to: Geoffrey E Gledhill, Coleman, Gledhill, Hargrave & Peek, P C, P O. Drawer 1529, Hillsborough, NC 27278 NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF CONSERVATION EASEMENT This Deed of Conservation Easement (hereinafter "Conservation Easement") is made on this _ day of 2005 by the CHARLES R. KEITH, SUCCESSOR TRUSTEE OF THE BARBARA KEITH TRUST DATED MAY 8, 1997, having an address at 2131 Marion's Ford Road, Chapel Hill, NC 27516 (hereinafter "Grantor" or "the Grantor") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee" or "the Grantee") .. The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantor is the sole owner in fee simple of three contiguous tracts of real property located in Bingham Township, Orange County, North Carolina, and described on Exhibit A hereto, which is incorporated herein by reference. The three tracts together, comprising 36.03 acres, are hereinafter collectively referred to either as "the Grantor's Property" or the "Easement Area." The Easement Area includes buildings and other improvements, which are shown on Exhibit C, attached hereto and incorporated herein. To the extent practicable, the Grantor wishes to maintain the Easement Area as a combination of woodland and open space suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to protect the water quality of headwater streams running off from this land and into Morgan Creek, and to protect a portion of the Grantor's Property for an arboretum with native and non-native trees and shrubs. Draft 812910.5 (BOCC) 7 B. The Grantee is a body politic and corporate, a political subdivision of the State of North Carolina, with powers prescribed in Chapter 153A of the North Carolina General Statutes. C. The Easement Area includes contains a natural area that has not been subject to significant development, which provides 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. The Easement Area is adjacent to and would contribute to the protection of a Natural Heritage site identified as "Pickard's Mountain" in the Inventory of Natural Areas and Wildlife Habitats for Orange County, North Carolina., According to the inventory, Pickard's Mountain contains the most expansive stand of chestnut oak forest in Orange County and serves as an important wildlife reservoir and overland link between two stream corridor systems. The Easement Area also contributes to the open space and rural character of this eastern section of Bingham Township and the "Rural Buffer" so classified in the Orange County Comprehensive Plan and located between the towns of Hillsborough to the north and Chapel Hill and Carrboro to the south. It is a further purpose of this Conservation Easement to help to protect the rural character and open space of the Rural Buffer in Bingham Township. The Easement Area also contributes to the water quality of a public water supply. A tributary of Morgan Creek flows through the Easement Area on its way south to University Lake, a water supply reservoir for the towns of Chapel Hill and Carrboro. The entire property is within the "University Lake Protected Watershed Overlay District" so classified in the Orange County Comprehensive Plan. The natural habitat of the Grantor's Property and its contribution to the protection of the open space and rural character of Bingham Township and the University Lake Protected Watershed 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 Dr. Charles Keith Property," dated 2005 (hereafter "the Baseline Report") prepared by Orange County ERCD for the Grantor, of which a summary is attached as Exhibit B to this Conservation Easement The Grantor 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 Grantor and Grantee to assure that any fiuture changes in the use of the Easement Area will be consistent with the teens 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. Draft 81.2910.5 (BOCC) 8 E. The Grantor and Grantee have the common purpose of conserving the above-described conservation values of the Easement Area in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C Gen. Stat. § 121-34 et seq., and 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 predominantly 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 Grantor and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, the Grantor, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein, 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: Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent 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 any other property,. 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 will not perform, nor knowingly 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 Grantor to take any action to restore the condition of the Easement Area after any act of God or other, event over which Grantor had no control. Grantor understands that nothing in this Conservation Easement relieves them of any obligation or restriction on the use of the Easement Area imposed by law. 2. EASEMENT AREA USES. 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 and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting Draft 81,2910.5 (BOCC) the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantor are set forth in Paragraph 3 below. 2.1 Subdivision. The Easement Area currently consists of three separate tracts. The further subdivision of the Property, including its partition, is prohibited. All of the Easement Area shall be kept under the same fee simple ownership. No portion of the Easement Area shall be sold, conveyed, mortgaged, partitioned or subdivided so as to create the possibility of fee simple ownership of any portion that would be separate or different from the fee simple ownership of the remainder of the Easement Area. 2.2 Construction. The construction of any building or other structure within the Easement Area is prohibited except as follows: a) Existing fences may be repaired and replaced, and new fences may be built to mark property boundaries or to help protect the Arboretum without permission of the Grantee. b) Existing residential structures and improvements may be repaired, reasonably enlarged and replaced at their current locations within the "Building Envelope," as shown on Exhibit C, without further permission from the Grantee. New accessory structures and improvements may be built without further permission of the Grantee provided they are located in the "Building Envelope" as identified on Exhibit C. At the time that construction of such structure is to commence, Grantee shall be notified so that its records can be updated. C) New structures or improvements proposed for locations outside the "Building Envelope" may be built provided they are for the care and maintenance of the Arboretum, are to be located on Tract A as identified on Exhibit C, and have the advance written permission of the Grantee. The Grantee shall give such permission within a reasonable time if it determines that the proposed structure or improvement would not diminish or impair the conservation values of the Easement Area or otherwise be inconsistent with this Conservation Easement, d) A new building for use as a visitor center or for other research and educational purposes related to the Arboretum may be built without further permission of the Grantee provided the building footprint is less than 1,000 square feet, it is located in the Draft 8/29/0.5 (BOCC) 10 "Building Envelope" on Tract A as identified on Exhibit C. At the time that construction of such structure is to commence, Grantee shall be notified so that its records can be updated. e) The installation, maintenance, repair, replacement, removal and relocation of electric, gas, and water facilities, other public or private utilities, including telephone or other communication services over or under the Easement Area for the purpose of providing electrical, gas, water, or other utilities to serve improvements permitted herein, and the right to grant easements over and under the Property for such purposes, is permitted. Grantor shall not permit or grant easements for utility transmission or distribution facilities or systems without the written consent of the Grantee. Maintenance, repair or improvement of a septic system(s) or other underground sanitary system that exists on the Property at the time of this Conservation Easement, or the construction of a septic or other underground sanitary system, for the benefit of any of the improvements permitted herein, is permitted. f) The existing driveway and parking area may be expanded as long as it is constructed of pervious materials, is no larger than necessary to accommodate ten (10) vehicles, and it is located in the "Building Envelope" on Tract A as identified on Exhibit C. g) Unpaved walking trails may be constructed in a manner that does not materially diminish the wooded, open space character, and scenic and natural qualities of the Easement Area as compared to those conditions existing on the date of this Conservation Easement. The Grantor may also construct and maintain benches and trail/feature signs along the trails. All construction or reconstruction is subject to Orange County zoning regulations and must be consistent with permits required by and issued by Orange County under its laws and ordinances for such construction activities. No other structures may be placed or constructed on the Easement Area. Furthermore, there shall be no constructing 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. Any such facilities shall be constructed, erected or otherwise installed in a manner compatible with the conservations values of the Easement Area. Draft 81,29105 (BOCC) 11 The total cleared, and not re-vegetated, pervious and impervious surfaced areas, associated with all aforesaid improvements, including, but not limited to, the buildings, parking lot, and driveway shall not exceed six (6) percent of the total area of the Easement Area. Furthermore, Grantor and Grantee have no right to agree to any activity that would result in a violation of'or the termination of this Conservation Easement. 23 Agricultural, Grazing and Horticultural Use. Agricultural, grazing, and horticultural uses of the Easement Area are prohibited. 2A Timber Harvesting and Forest Management, 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, or to salvage wind-thrown timber. Such management activities must be pursuant to a Forest Management Plan prepared by a North Carolina Registered Forester, the selection of'whom is mutually agreed upon by Grantor and Grantee and which management activities must be agreed to in advance by Grantee and Grantor, 2.5 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantor shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Easement Area, including, but not limited to, hiking, picnicking, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land. Grantor reserves 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 right to prohibit any recreational use that would permit destruction of other significant conservation values of the Easement Area. 2.6 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the improvements permitted herein, b) the maintenance of hiking trails permitted herein, c) the combating of erosion or flooding, and d) the expansion of the existing pond to a size no greater than one acre. 2.7 Destruction of Plants. Grantor shall have the right to cut and remove diseased trees, shrubs, or other plants, to cut and remove invasive (usually non-native) trees, shrubs and other plants, and to cut firebreaks. Grantor shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers, plowing, introduction of non-native animals, or disturbance or change in the natural habitat in any manner. Draft 812910.5 (BOCQ 12 28 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the 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. 2.9 Signage. No signs or billboards or other advertising displays are allowed on the Easement Area except as otherwise permitted herein and as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not diminish the scenic character of the Easement Area may be displayed to identify the conservation values of the Easement Area, to identify the Conservation Easement, to give directions, to advertise or regulate permitted uses on the Easement Area and prescribe rules and regulations for educational use of the protected Easement Area, to advertise the Easement Area for sale or rent, to post the Easement Area against trespassers, and to identify the Grantor as fee simple owner of the Easement Area, and to identify the Grantee as holder of the Conservation Easement. 210 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. 2.11 No Dumping. There shall be no storage or dumping of trash, garbage, abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous substance, or toxic waste on the Easement Area. There shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2.12 Predator Control. Grantor shall have the right to control, destroy, or trap predatory and problem animals that pose a material threat to livestock and/or' humans by means and methods with prior written approval of Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques.. 2.13 Commercial Development. Any commercial or industrial use of or activity within the 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. 2.14 Development Rights. Grantor conveys 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 Page 12 of 16 Draft 812910.5 (BOCC) 13 transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or described, or to any other property. ADDITIONAL RIGHTS RETAINED BY GRANTORS, Grantor retains 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, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is subject to the terms of this Conservation Easement. 4, GRANTEE'S RIGHTS AND RESPONSIBILITIES. To accomplish the purposes of this Conservation Easement, the following rights are granted to Grantee and the following responsibilities are reserved to Grantee by this Conservation Easement: (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after reasonable advance notice to Grantor or with Grantor's prior verbal consent, to enter the protected Easement Area for the purposes of: (a) inspecting the protected Easement Area to determine whether the Grantor, their representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the 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 Grantor. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantor or others shall be reported to Grantee. (d) Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Easement Area. Grantee will consult with Grantor prior to implementing any such control activities. Page 13 of 16 Draft 8129105(BOCC) 14 5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantor, or in any way to affect any existing obligation of the Grantor as owner of the Easement Area. Among other things, this means: (a) Taxes - The Grantor 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 its interest in the Property, the Grantor will reimburse Grantee for the same,. (b) Upkeep and Maintenance - The Grantor retains all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no obligation for the upkeep or maintenance of the Property. Grantor will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Property, (c) Liability and Indemnification - Grantor agrees to indemnify and hold Grantee harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof, unless due to the negligence of Grantee or agents of Grantee, in which case liability shall be as provided by law. In addition, Grantor agrees to maintain liability insurance covering the Property with the limits as follows: $300,000, $300,000 personal injury; and $300,000 property damage; and warrant that Grantee is and will remain a named insured on Grantors' Property insurance policies covering the Property. Grantor shall provide Grantee with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 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 has the right to view the Easement Area from adjacent publicly accessible areas such as public roads and waterways and has whatever rights to the Easement Area that are otherwise expressly granted herein. 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. (a) With reasonable advance notice provided to the Grantor or with the Grantor's prior verbal consent, the Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through, judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terns of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the conservation values of the Property, the Grantee shall give the Grantor written notice of the Page 14 of 16 Draft 8129105 (BOCC) 15 violation and thirty (30) days to cure the violation, before commencing any legal proceedings. The Grantee may obtain an injunction to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring the Grantor to restore the Property to its condition pr'ior' to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantor' shall reimburse the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In any case where the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney's fee to the prevailing party as provided by law. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. (b) Grantee shall not bring any action against Grantor for any injury or change to the Easement Area caused by third parties, or resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantor under' emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Easement Area or Kann to the Easement Area resulting from such action. 8. TRANSFER OF EASEMENT. The Grantee shall have the right to transfer, assign, convey, or otherwise to co-hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under NCGS 121-34 et seg., provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Deed, If the Grantee ever ceases to exist or no longer qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Conservation Easement. 9. TRANSFER OF EASEMENT AREA. The Grantor agrees to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which it transfers or divests itself of any interest, including leasehold interest, in all or a portion of the Grantor's Property. The Grantor shall notify the Grantee in writing at least thirty (30) days before conveying the Grantor's Property, or any part thereof or interest therein. Failure of Grantor' to do so shall not impair the validity of this Conservation Easement or limit its enforceability in any way.. 10. AMENDMENT OF EASEMENT. This easement may be amended only with the written consent of Grantor and Grantee. Any such amendment shall be consistent with the purposes of this Conservation Easement and shall comply with Sec. 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such Page 15 of 16 Draft 81-29105 (BQCC) 16 amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N C. Gen. Star. § 121-34 et seq., or any regulations promulgated pursuant to that law. The Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. IL PROCEDURE IN THE EVENT OF TERMINATION OF CONSERVATION EASEMENT. If it determines that conditions on or surrounding the Grantor's Property change so much that it becomes impossible to fulfill the conservation purposes of this Conservation Easement, a court with, jurisdiction may, at the joint request of both the Grantor and the Grantee, terminate or modify the Conservation Easement created by this Deed in accordance with applicable State law. If the Conservation Easement is terminated and the Grantor's Property is sold, then as required by Section 1,1 70A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to thirty-one percent (31 %) of the net sale proceeds (equal to the ratio of the purchase price of this Conservation Easement to the unrestricted fair market value of the Property, as these values are determined on the date of this Conservation Easement), subject to any applicable law which expressly provides for a different disposition of the proceeds. All termination related expenses, including reasonable attorney fees, incurred by the Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 12. PROCEDURE IN THE EVENT OF CONDEMNATION OR EMINENT DOMAIN. Grantor and Grantee recognize that the partial sale of this Conservation Easement gives rise to a property right, immediately vested in the Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Grantor's Property prior to the restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or eminent domain action shall be taken, on all or part of the Grantor's Property, by any authorized public authority, said authority shall be liable to the Grantee for the value of the property right vested in the Grantee at the time of the signing of this Conservation Easement. If condemnation or a taking by eminent domain of a part of the Grantor's Property or the entire Property by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Easement Area, this Conservation Easement may be terminated or modified accordingly through condemnation proceedings. Grantor and Grantee agree that this Conservation Easement is a currently vested real property right with a value equal to the proportionate value of the Conservation Easement to the unencumbered value of the fee, as of the date of this Conservation Easement. If the Conservation Easement is terminated or modified and any or all of the Grantor's Property is sold or taken for public use, then, as required by Section 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at thirty-one percent (31 %) of the Property's unrestricted value, subject to any applicable law that expressly requires for a different disposition of the proceeds. Page 16 of 16 Draft 812910.5 (BOCC) 17 If, however, after the condemnation or eminent domain proceedings, a court of jurisdiction does not include in the just compensation awarded as a result of the taking, the amount of the Conservation Easement value, then the Grantor shall not be responsible to share any proceeds awarded. All condemnation related expenses, including reasonable attorney fees, incurred by the Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 13. INTERPRETATION, This Conservation Easement shall be interpreted under the laws of North Carolina, resolving any ambiguities and questions of the validity of specific provisions as to give maximum effect to its conservation purposes. 14. TITLE. The Grantor covenants and represents that it is the sole owner and seized of Grantor's Property in fee simple and has 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 encumbrances of record. 15. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantor: Dr. Charles R. Keith 2131 Marion's Ford Road Chapel Hill, NC 27516 To the Grantee: Orange County Environment and Resource Conservation Department Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 16 ENVIRONMENTAL CONDITION. The Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Easement Area. 17. SEVERABILITY, If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby 18. PARTIES. Every provision of this Conservation Easement that applies to the Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. This Conservation Easement shall not be Page 17 of 16 Draft 812910.5 (BOCC) 18 construed to benefit or to create any rights in any third parties, including but not limited to the general public 19. RE-RECORDING. In order to ensure the perpetual enforceability of the Conservation Easement, the Grantee is authorized to re-record this instnument or any other' appropriate notice or instrument. 20, 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. 21. SUBSEQUENT LIENS ON EASEMENT AREA. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor' to use the Easement Area as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 22. 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 B. (b) Future Construction. Exhibit C is a GIS map and sketch showing the configuration of the property owned by the Grantor. 23. 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. 24. ACCEPTANCE AND EFFECTIVE DATE. As attested by the Clerk of the Grantee and the signature of its authorized representative affixed hereto, the Grantee hereby accepts 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. TO HAVE AND TO HOLD, this Grant of Conservation Easement, including the right- of-way easement all as described in Exhibit A, unto the said Grantee its successors and assigns, forever- Page 18 of 16 Draft 8/29/0.5 (BOCQ 19 IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: Charles R. Keith, Successor Trustee of the Barbara Keith Trust dated May 8, 1997 Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Moses Carey Jr., Chair Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners Page 19 of 16 Draft 8129105 (BOCC) 20 Acknowledgments NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public in and for said County and State do hereby certify that Charles R. Keith, Successor Trustee for the Barbara Keith Trust dated May 8, 1997, personally appeared before me this day and duly acknowledged the execution of the foregone Conservation Easement. Witness my hand and official stamp or seal this the day of 200_. Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE I, a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the _ day of 200_. Notary Public My commission expires: Page 20 of 16 Draft 812910.5 (B000) 21 STATE OF NORTH CAROLINA COUNTY OF ORANGE The Foregoing (or annexed) Certificate(s) of Notary(ies) Public (is)(are) Certified to be correct. This instrument was filed for Registration on the Day and Hour in the Book and Page shown in the First page hereof. Joyce H. Pearson, Register of Deeds [EXHIBIT A. PROPERTY DESCRIPTION] [EXHIBIT B. SUMMARY OF THE BASELINE REPORT] [EXHIBIT C. GIS MAP AND SKETCH OF PROPERTY] [EXHIBIT D. PERMITTED EXCEPTIONS] Page 21 of 16