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HomeMy WebLinkAboutAgenda - 06-04-2024; 8-f - Approval to Purchase Real Property - Kittrell-McAdoo Tract, and Grant of Conservation Easement to North Carolina Land and Water Fund 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 4, 2024 Action Agenda Item No. 8-f SUBJECT: Approval to Purchase Real Property — Kittrell-McAdoo Tract, and Grant of Conservation Easement to North Carolina Land and Water Fund DEPARTMENT: Environment, Agriculture, Parks and Recreation (DEAPR) ATTACHMENT(S): INFORMATION CONTACT: 1. Location Map David Stancil, 245-2510 2. Site Map Christian Hirni, 245-2514 3. Draft Conservation Easement PURPOSE: To approve 1)the County's purchase of the Kittrell-McAdoo Tract, and 2)the granting of a conservation easement to the North Carolina Land and Water Fund as a condition of that agency's grant toward the purchase. BACKGROUND: County and Eno River Association (ERA) staff discussed the desirability to acquire this property for a variety of conservation goals, including the Mountains to Sea Trail (MST). After authorization to proceed, ERA subsequently negotiated with the landowners on behalf of both parties. The landowners expressed interest in a fee-simple purchase of the 19.4- acre tract as opposed to a trail or conservation easement. The property is located at the southwest corner of the Dimmocks Mill Road overpass over 1-40/85, southwest of Hillsborough. The property contains a 1,600-linear foot section of Rocky Run (a tributary of the Eno River and within the Upper Eno watershed). The landowners have indicated interest to sell the property to the County via an Option to Purchase contract approved by the Board and signed in June 2023. The parcel would complete the last connection needed to extend the Mountains to Sea Trail from the County-owned Seven Mile Creek Natural Area to Dimmocks Mill Road. It is also adjacent to the historic Moorefields house and grounds, an Orange County Local Landmark. The tract is entirely wooded, and portions of the site have now been incorporated into the previously identified Seven Mile Creek Natural Heritage Area by the North Carolina Natural Heritage Program. This constitutes an addition to the existing 750-acre Seven Mile Creek State Natural Heritage Area. The State Natural Heritage Area site is highly ranked and contains the highest level of ranking for habitat "patches," shown as a vital wildlife corridor in the Eno-New Hope Wildlife Connectivity Study. These conservation values, in addition to the 1,600-foot stream 2 segment of Rocky Run, give the parcel an added significance for natural and ecosystem importance beyond also being a connector for the MST. As such, this property ranks in the "High" category for conservation acquisition assessment, and it is shown on the BOCC adopted MST Trail Route of January 2018. In previous action the Board authorized staff to conduct an appraisal, identify funding sources, work to gather additional closing materials, and negotiate potential offers through the Eno River Association. Two appraisals were conducted, yielding a land value of $438,000. ERA staff, working in conjunction with County staff, applied for and received approval of a grant award from the North Carolina Land and Water Fund (NCLWF)for up to $238,760. The NCLWF grant requires that a State-held easement be recorded concurrently with the purchase, and that the Eno River Association monitor the easement in perpetuity. With the option to purchase in place, staff and partners at the Eno River Association would continue to explore and apply for other possible accompanying grants to further offset the total project costs. Significance • The presence of State identified Natural Heritage sites • Presence of a significant segment of Rocky Run Creek (Upper Eno and Falls Lake watershed) • Adjacent to historic Moorefields, an Orange County Local Landmark and National Register of Historic Places site • Close proximity to the County-owned Seven Mile Creek Natural Area, and other areas of high cultural/archaeological significance • Contains a portion of the MST corridor, connecting the Occoneechee Mountain area to Seven Mile Creek Natural Area Due to these factors, conservation of this tract is ranked among the highest priorities for the Lands Legacy Program and the Mountains to Sea Trail project. FINANCIAL IMPACT: The appraised value of the property is $438,500, which was determined by an appraisal by Kirkland Appraisals, LLC. The purchase price for the property is $438,500, the full appraised value. Additional costs, including closing and transactional costs, bring the estimated total at closing to $466,760. DEAPR worked with the Eno River Association to identify the following funding sources: Orange County (Lands Legacy) $ 228,000 (49%) NC Land and Water Fund (NCLWF) $ 238,760 (51%) Eno River Association (Baseline Report) $ 2,500 (<1%) $ 469,260 (acquisition + transaction) Funds for the purchase would come from Orange County ($215,500 of the purchase price plus $12,500 for survey, legal and closing costs), and NCLWF ($223,000 of purchase price plus $15,760 for contract administration and stewardship endowment costs). The County's share of funds ($228,000) would come from existing funds budgeted and approved for the Lands Legacy program (Lands Legacy Fund). 3 The conservation easement on the property required by NCLWF would be conveyed at the time of closing. SOCIAL JUSTICE IMPACT: There is no Orange County Social Justice Goal impact associated with this item. ENVIRONMENTAL IMPACT: The following Orange County Environmental Responsibility Goal impacts are applicable to this item: • RESULTANT IMPACT ON NATURAL RESOURCES AND AIR QUALITY (Assess and where possible mitigate adverse impacts created to the natural resources of the site and adjoining area. Minimize production of greenhouse gases.) The purchase and subsequent easement will provide a permanent protected natural and buffer along a busy highway and developed land to the south. The easement will also protect a vital watershed which leads to a primary drinking water source for the Town of Hillsborough and City of Raleigh. • CLEAN OR AVOIDED TRANSPORTATION Implement programs that monitor and improve local and regional air quality by: 1) promoting public transportation options; 2) decreasing dependence on single-occupancy vehicles, and 3) otherwise minimizing the need for travel. The acquisition of this property and subsequent trail development will progress the continued effort of a Statewide trail system, allowing for local and statewide "thru hiking"/foot travel opportunities and promoting heathy recreation for locals and visiting individuals between several municipalities and areas of natural and cultural interests. RECOMMENDATION(S): The Manager recommends that the Board approve the purchase of the property and the conveyance of the conservation easement to the North Carolina Land and Water Fund; and authorize the County Manager, Chair, and Clerk to the Board to sign all closing documents for the purchase and the conservation easement agreement, subject to final review by staff and the County Attorney. Kittrell/McAdoo Property- Context Map 4 --HNSTON RD Y U II m� iu !8SS/Q a R COS t wgMipR f Occoneechee Mtn. State Natural Area I Sevenmile Creek Moorefields +fff Natural Area X40 + PRABHUPADA DR 1_85 185, rf �4pFk7T1 ���� W i 0 Y, )3 Z1 N� 0 X NEW GRADY BROWN SCHOOL-RD Cn - J W U- W K O N � Z ELMER DR S Tract Information: 0 412.5 825 1,650 2,475 3,300 Feet Legend Landowner: Kittrell/McAdoo ORANGE COUNTY Roads Lat: 36' 03.68" Long: 79'08.28" MST Proposed Route Date: 04/18/2022 Q Tract Boundary Image: 2021 Aerial Photo Streams Created By: Christian Hirni Acres: 19.4 Open Space-Other Department of Environment, County Open Space Agriculture,Parks&Recreation jT- Conservation Easements Tax Parcels Kittrell/McAdoo Property- Aerial Map 5 .Y S, A r iP+ L' T u � fJ N E S Tract Information: 0 60 120 240 860 480 Feet Legend Landowner: Kittrell/McAdoo ORANGE COUNTY Roads Lat: 36' 03.68" Long: 79'08.28" MST Proposed Route Date: 04/18/2022 Q Tract Boundary Image: 2021 Aerial Photo , Created By: Christian Hirni Streams Acres: 19.4 Tax Parcels Department of Environment, Agriculture, Parks&Recreation 6 CONSERVATION EASEMENT Property Prepared by: Orange County and North Carolina Land and Water Fund After Recording Return to: [Address of preparing organization] NORTH CAROLINA Orange County COUNTY Tax Parcel No. 9854910340 NCLWF No. 2023- 420 I 171W FEE SIM . . L BE -WE FOLL D&'.'1 d LJUT PARAGRAP THIS DEED OF CONSERVATION EASEMENT("Conservation Easement") is made, given, granted,and executed on this the day of ,by and between i ORANGE COUNTY,a local government of the State of North Carolina('Grantor), its address being: P.O. Box 8181,Hillsborough,NC 27278, and the STATE OF NORTH CAROLINA ("Grantee"or"State"), its address being: Attn:NCLWF Real Property Agent, State Property Office, 1321 Mail Service Center, Raleigh,NC 27699-1321, acting by and through NORTH CAROLINA LAND AND WATER FUND a.k.a. North Carolina Clean Water Management Trust Fund, a division of the North Carolina Department of Natural and Cultural Resources ("Fund"), its address being: Attn: Stewardship,North Carolina Land and Water Fund, 1651 Mail Service Center,Raleigh,North Carolina 27699-1651. Grantor and Grantee may hereinafter be referred to individually as a"Party"or collectively as the"Parties." RECITALS A. Grantor owns in fee simple absolute certain real property lying and being in CHEEKS Township, ORANGE,North Carolina,which consists of 19.404 acres, and which is NCLWF Property CE Template—rev.Oct 2023 1 of 18 7 more particularly described in"Exhibit A"which is attached hereto and incorporated herein by reference as if fully set forth herein(the "Property") B. Grantor is a North Carolina local government. Grantor's Department of Environment,Agriculutre, Parks,and Recreation Department will help manage and maintain the Property. C. The State has enacted the Conservation and Historic Preservation Agreements Act (the "Act"), Chapter 121,Article 4 of the North Carolina General Statutes("N.C.G.S."),which provides for the enforceability of restrictions, easements, covenants, and conditions"appropriate to retaining land or water areas predominantly in their natural, scenic or open condition. . . ." D. The North Carolina Land and Water Fund a.k.a.North Carolina Clean Water Management Trust Fund is authorized by N.C.G.S. Chapter 14313,Article 2, Part 41 to acquire land and interests in land on behalf of the State: • for riparian buffers for the purposes of providing environmental protection for surface waters and urban drinking water supplies and establishing a network of riparian greenways for environmental, educational,and recreational uses, • for the purpose of protecting and conserving surface waters and enhancing drinking water supplies,including the development of water supply reservoirs, • to provide buffers around military bases to protect the military mission, • that represent the ecological diversity of North Carolina,including natural features such as riverine,montane,coastal, and geologic systems and other natural areas to ensure their preservation and conservation for recreational, scientific, educational,cultural, and aesthetic purposes, and • that contribute to the development of a balanced State program of historic properties. E. Grantor and Grantee have agreed that the entire Property shall be subject to this Conservation Easement. As aforementioned,the Property is more particularly described in Exhibit A. The Property has the following conservation values and serves the following conservation purposes: NCLWF Property CE Template--rev.Oct 2023 2 of 18 8 • to preserve, enhance, restore, and maintain the natural features and resources of the riparian buffer,to control runoff of sediment, and to improve and maintain the water quality,of portions of Rocky Run and its tributaries, • to preserve and maintain the natural features and resources of the riparian buffer, and to provide environmental, educational,and recreational uses, including riparian greenway along portions of Rocky Run and its tributaries, • to protect and preserve the ecological diversity including natural features such as Natural Heritage Program inventoried occurrence of the Seven Mile Creek Natural Area for recreational, scientific, educational, cultural, and aesthetic purposes, Moreover, Grantor and Grantee recognize that the Property has other conservation values and purposes, including fish and wildlife conservation,open space values,scenic values, and archaeological values(hereinafter,collectively with the conservation values described in this Section E of the Recitals and the conservation purposes of this Conservation Easement,the "Conservation Values"). F. ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY, INC] has received or will receive a grant from Fund in accordance with Grant Contract No. 2023-020 between ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY,INC and Fund dated September 20,2023 (the"Grant Contract"). In the Grant Contract,ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY, INC] agreed to enter into this Conservation Easement. The Grant Contract is on file and available for public inspection in the offices of ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY, INC and Fund. The Grant Contract and this Conservation Easement are collectively referred to herein as the"Project." G. Grantor acknowledges that the Property is adjacent to] property listed on the National Register of Historic Places and as part of the grant from Fund, Grantee was required by N.C.G.S. 121-12 to take into account the effect of the grant on any district, site,building, structure,or object that is listed on the National Register of Historic Places. Said account was taken and documented by Fund on [date]. Grantor acknowledges that any future state-assisted undertaking, approval, or authorization which may be potentially harmful to the cause of historic preservation involving the Property would be required to again abide by the process required by N.C.G.S. 121-12. H. Grantor and Grantee acknowledge that the Property is currently unencumbered except as permitted in Article V of this Conservation Easement. The Property's characteristics, its current use, and its state of improvement are described in a Baseline Documentation Report NCL W F Property CE Template—rev.Oct 2023 3 of 18 9 (the "BDR"), which was required under the Grant Contract and is on file and available for public inspection in the offices of ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY, INC.,ORANGE COUNTY,] and Fund. The Parties acknowledge that the SDR is the appropriate basis for monitoring compliance with the objectives of preserving the Conservation Values and that it is not intended to preclude the use of other evidence(e.g. surveys, appraisals) to establish the condition of the Property at the time of the execution of this Conservation Easement if there is a controversy over such condition. NOW,THEREFORE, in consideration of the premises and the mutual benefits recited herein,together with other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged by the Parties, Grantor hereby unconditionally and irrevocably gives, grants, and conveys forever and in perpetuity to Grantee, its successors and assigns,and Grantee hereby accepts,this Conservation Easement of the nature and character and to the extent hereinafter set forth in, on,over,under, through, above,and across the Property,together with the right and easement to preserve and protect the Conservation Values. The purpose of this Conservation Easement is to protect and preserve the Conservation Values as outlined above in Section E of the Recitals including the conservation purposes and it shall be so held, maintained, and used therefor. Grantor hereby conveys to Grantee all development rights that are now or hereafter allocated to,or are implied or inherent in,the Property, and the Parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any other property. It is the further purpose of this Conservation Easement to prevent any use of the Property that will impair or interfere with the preservation of the Conservation Values. Grantor intends that this Conservation Easement will restrict the use of the Property to such activities as are consistent with the Conservation Values. ARTICLE 1. DURATION OF EASEMENT This Conservation Easement shall be perpetual.It is an easement in gross,runs with the land,and is enforceable by Grantee, its successors and assigns, against Grantor,its representatives, successors, assigns,lessees,agents, and licensees. ARTICLE II. RIGHTS RESERVED TO GRANTOR Grantor reserves the right accruing from the fee simple ownership of the Property to engage in or permit others to engage in the uses of the Property that are not inconsistent with this Conservation Easement or the Conservation Values. All rights reserved by Grantor are reserved for Grantor and its successors and assigns. The specific reserved rights listed below in this Article II are considered to be consistent with this Conservation Easement and the Conservation Values. Grantor shall continue to own and may use the Property in any lawful manner that is consistent with this Conservation Easement and the Conservation Values. The Parties acknowledge and agree that they have no right to agree to any activity that would result in the NC LW F Property CE Template—rev.Oct 2023 4of18 10 termination of this Conservation Easement. The Property shall be restricted from any development or usage that would impair or interfere with the Conservation Values including the purposes of this Conservation Easement. The following uses are reserved as indicated: A. Access and Use. Grantor reserves the right to allow access and use of the Property for the purposes of the activities permitted herein. Grantor reserves the right to generate income from individuals and groups related to the activities permitted under the rights reserved herein, so long as the activities are not detrimental to the Conservation Values. B. Passive Recreational Use. Grantor reserves the right to engage in and to permit others to engage in passive recreational uses of the Property that do not require surface alteration of the land and pose no threat to the Conservation Values. By way of illustration, such passive recreational uses may include hiking, walking, scientific study, animal/plant observation,nature and environmental education,historic tours,photography, so long as such uses are consistent with the maintenance of the Conservation Values,and such uses are subject to all applicable federal, state,and local laws and regulations. C. Existing Roads and Trails. Grantor reserves the right to maintain existing unpaved roads and trails on the Property. These roads and trails shall not be paved without prior written approval of Fund. The existing roads and trails may be stabilized with gravel and permanent vegetation. Associated ditches,culverts, stream crossings, and bridges may be maintained and replaced as necessary as maintenance of the road or trail. All necessary care shall be taken to maintain existing roads and trails in a manner so as not to impair any Conservation Values. Existing roads and trails shall not be realigned without the prior written approval of Fund. ERT PAIRWRMWOR A W ROAD AN AMM D. Motorized Vehicles. Grantor reserves the right to use motorized vehicles on allowed roads and trails for management, maintenance, or stewardship purposes. Grantor further reserves the right to allow motorized vehicles on existing and new roads and parking areas for the purpose of public access. E. New Natural Surface Trails. Grantor reserves the right to construct and maintain new natural surface trails for the purpose of hiking . All natural surface trails must be located a minimum distance of fifty (50)feet from the top of the bank of all surface water,unless such locations are physically impracticable,and must be located so as not to impair the Conservation Values. All natural surface trail construction involving soil disturbance must follow best practices for sustainable trail design and construction and must have prior written approval by Fund. When required by the terrain, natural surface trails may include boardwalks,ramps, and handrails to the extent necessary.Natural surface trails may include stream crossings up to 6 feet NCLWF Property CE Template--rev.Oct 2023 5 of 18 11 wide, provided they are permitted by all applicable regulatory authorities. All necessary care shall be taken to construct and maintain natural surface trails in a manner so as not to impair any Conservation Values either during or after construction. Fund shall have the authority to require the closure of any natural surface trail that is detrimental to any Conservation Values. All realignments of natural surface trails are subject to the requirements of this Paragraph. F. New Paved Trails. Grantor reserves the right to construct and maintain new paved trails for the purpose of non-motorized recreation. All paved trails must be located a minimum distance of fifty(54)feet from the top of the bank of all surface water, unless such locations are physically impracticable,and must be located so as not to impair the Conservation Values. All paved trail construction involving soil disturbance must follow best practices for sustainable trail design and construction and must have prior written approval by Fund. When required by the terrain,paved trails may include boardwalks,ramps, and handrails to the extent necessary. Paved trails may include stream crossings up to_feet wide,provided they are permitted by all applicable regulatory authorities. All necessary care shall be taken to construct and maintain paved trails in a manner so as not to impair any Conservation Values either during or after construction. Fund shall have the authority to require the closure of any paved trail that is detrimental to any Conservation Values. All realignments of paved trails are subject to the requirements of this Paragraph. G. Trail and Recreational Accessories. Grantor reserves the right to construct and maintain park benches, litter receptacles, and directional,educational, and informational signs along existing trails and approved new natural surface and paved trails. Grantor further reserves the right to construct and maintain i observation platforms/fishing platforms/boat docks along existing and approved new natural surface and paved trails or on the banks of surface water if allowed and approved by all applicable regulatory authorities.All necessary care shall be taken to construct and maintain trail and recreational accessories in a manner so as not to impair any Conservation Values either during or after construction. Fund shall have the authority to require the removal of any trail or recreational accessory that is detrimental to any Conservation Values. PARAG ATA H. Vegetation Management. Grantor reserves the right to manage vegetation for boundary marking, fencing, signage,fire containment,disease control, insect control,invasive exotic plant control,and removal of conditions that threaten life or property. Methods of vegetation management may include,but are not limited to, selective cutting,prescribed burning, and application of herbicides or pesticides. 1. Native Community Restoration. Management, and Maintenance. Grantor reserves the right to perform all activities necessary to restore, manage, or maintain the native plant and animal communities on the Property,provided,however, that the conversion of one habitat type NCLWF Property CE Template—rev.Oct 2023 6of18 12 to a native habitat type requires prior written approval of Fund. All necessary care shall be taken to protect all Conservation Values, and restoration, management, and maintenance activities shall be carried out in a manner so as not to impair any Conservation Values either during or after the activities. J. Stream/Wetland Restoration, Grantor reserves the right to perform all activities necessary to restore and stabilize streams and wetlands to enhance water quality on the Property. Such activities shall be based upon prevailing design and permitting standards, Restoration and stabilization activities shall be based on a design using as many natural materials as possible, shall require prior written approval of Fund,and shall be subject to all applicable regulatory authorities. K. Signs. Grantor reserves the right to post the following signs: no trespassing signs, local, state, or federal traffic or similar information signs, for sale or lease signs, signs identifying the Conservation Values of the Easement, signs identifying Grantor as owner of the Property, signs identifying the funders or the holders of Conservation Easements, educational signs, directional signs, and interpretative signs. L. Historic and Cultural Restoration,Management, and Maintenance. Grantor reserves the right to manage the Property for the purposes of restoring, managing,altering,or maintaining the historic resources on the Property. All historic resource restoration,management, alteration,or maintenance must be outlined in a formal plan and must have prior written approval by Fund. ARTICLE III. PROHIBITED AND RESTRICTED ACTIVITIES Any activity on,or use of,the Property that is inconsistent with this Conservation Easement or the Conservation Values is prohibited,The Property shall be maintained in its natural,scenic, wooded,and open condition and restricted from any development or use that would impair or interfere with this Conservation Easement or the Conservation Values. Without limiting the generality of the immediately foregoing Paragraph,the following activities and uses are expressly prohibited or restricted on the Property as stated,except to the extent of rights specifically reserved to Grantor in Article 11. When an activity or use is prohibited or restricted in, within, on, or of the Property,the activity or use is prohibited or restricted in,on, over,under,through, above,and across the Property. A. Industrial and Commercial Use.Industrial and commercial activities and any rights of passage for such purposes are prohibited on the Property. B. Agricultural, Grazing and Horticultural Use. Agriculture, grazing, horticultural, and NCLW F Property CE Template—rev.Oct 2023 7of18 13 animal husbandry operations and any rights of passage for such purposes are prohibited on the Property. C. Disturbance of Natural Features, Plants, and Animals. There shall be no cutting or removal of trees and no disturbance of other natural features on the Property. D. Construction of Structure_ s or Improvements, There shall be no constructing or placing of any temporary or permanent structure, improvement, building, fixture, mobile home, asphalt, concrete, or other pavement, billboard or other advertising display, antenna, utility pole, tower,conduit, line,or facility on the Property. E. Motorized Vehicles. Use of motorized vehicles on the Property is prohibited. F. Signs. Signs are not permitted on the Property. G. Mineral Use, Excavation, Dredging. There shall be no filling, excavation, dredging, mining,or drilling on the Property. There shall be no removal of topsoil,sand,gravel, rock,peat,minerals,hydrocarbons, or other materials from the Property. There shall be no change in the topography of the Property in any manner. H. Wetlands and Water Quality. There shall be no pollution or alteration of surface waters on the Property. There shall be no construction or other activities that would be detrimental to water quality or that would alter the natural water levels, drainage, sedimentation, or water flow in,on,or over the Property or into any surface waters.There shall be no construction or other activities that would cause soil degradation or erosion. There shall be no diking, dredging,alteration,draining, filling,or removal of wetlands. 1. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances, machinery, or other materials on the Property is prohibited. J. Conveyance and Subdivision. The Property shall not be divided, subdivided, or partitioned. No property interest in the Property, including, but not limited to the fee simple interest, shall be divided, subdivided, or partitioned. Without limiting the foregoing, the Property shall not be conveyed except in its current configuration as a single parcel of property. I Open Space and Development Rights.The Property shall not be used to satisfy open space or density requirements of any cluster or other development scheme or plan. The development rights encumbered by this Conservation Easement shall not be transferred to any other land pursuant to a transfer of development rights scheme,a cluster development arrangement, or otherwise. NCLWP Property CC Template—rev.Oct 2023 8of18 14 K. Mitigation. There shall be no use of the Property or any portion thereof to satisfy compensatory mitigation requirements under 33 USC Section 1344,N.C.0.S. §143214.11 or any successor or replacement provision of the foregoing. L. Destruction of Archaeological Resources Prohibited. Notwithstanding anything to the contrary stated herein,Grantor agrees to manage the Property in such a way as to protect the archaeological integrity of the Property and to not disturb,demolish,destroy,or otherwise deface or alter any known archaeological features on the Property without prior written approval of Fund. In the event that an archaeological feature is uncovered during the course of any improvements on the Property or through a natural event such as but not limited to flood or erosion, Grantor shall notify Fund immediately and shall assist with any requested actions by Grantee to document and protect the feature. ARTICLE IV. ENFORCEMENT AND REMEDIES A. Enforcement and Remedies. Grantee has the right to prevent and stop any violation of this Conservation Easement, including,but not limited to, preventing and stopping any activity on or use of the Property that is inconsistent with this Conservation Easement or its purposes, and to require the prompt restoration to the condition required by this Conservation Easement of such areas or features of the Property that may have been damaged by such violation, activity, or use. Upon any breach of the terms of this Conservation Easement by Grantor that comes to the attention of Grantee,Grantee,may notify Grantor in writing of such breach. Grantor shall have ninety(90)days after receipt of such notice to correct the conditions constituting such breach. If the breach remains uncured after ninety (90)days,Grantee may enforce this Conservation Easement by legal proceedings for damages, injunctive relief, and any other legal or equitable remedy. Grantee shall also have the power and authority,consistent with its statutory authority: (a)to prevent any impairment of the Property by acts which may be unlawful or in violation of this Conservation Easement, (b)to otherwise preserve or protect its interest in the Property,and (c)to seek damages from any appropriate person or entity. Notwithstanding the foregoing,Grantee has the immediate right, without notice,to obtain a temporary restraining order, injunction, or other appropriate relief if a breach or threatened breach of the terms of this Conservation Easement is or would irreversibly or materially impair the benefits to be derived from this Conservation Easement. Grantor and Grantee acknowledge that under such circumstances damage to Grantee would be irreparable and remedies at law will be inadequate. The rights and remedies of Grantee provided hereunder shall be in addition to, and not in lieu of,all other rights and remedies available to Grantee in connection with this Conservation Easement, including,without limitation,those set forth in the Grant Contract under which this Conservation Easement was obtained. B. Access for Inspection and Right of Entry. Grantee shall have the right,by and through its agents and employees,to enter the Property to inspect the Property for compliance with this Conservation Easement at all reasonable times and with prior notice and,if necessary, cross other lands owned by Grantor for the purposes of(1) inspecting the Property to determine NC:LWF Property CE Template--rev.Oct 2023 9 of Is 15 if Grantor is complying with this Conservation Easement and its purposes, (2)enforcing the terms of this Conservation Easement, (3) taking any and all actions with respect to the Property as may be necessary or appropriate with or without order of the Court,to remedy or abate violations hereof, and(4) making scientific and educational observations and studies and taking samples in such a manner as will not disturb the quiet enjoyment of the Property by Grantor.. C. Termination and Proceeds of Property Rights Created. This Conservation Easement gives rise to a property right that is immediately vested in Grantee at the time of recordation,with a fair market value that is at least equal to the proportionate value that the Conservation Easement bears to the full value of the whole Property, as if unencumbered by the Conservation Easement,on the date of the recording of this Conservation Easement. This proportionate value shall remain constant. For the purposes of determining any distribution of proceeds pursuant to this Paragraph, Grantor's proportionate contribution to the purchase price shall be deemed to be %, and Grantee's proportionate contribution to the purchase price shall be deemed to be_%. "Proceeds of Sale"shall include,but not be limited to,the cash value of all money and property paid,transferred, or contributed in consideration for,or as otherwise required as a condition to,the taking of, sale of,exchange of,involuntary conversion of, or severance damages to the Property or part thereof,and any money, damages, or just compensation otherwise awarded as a result of judicial proceedings. if any Proceeds of Sale are due,payable, or otherwise obligated to the United States government or any department or agency thereof related to funding provided to Grantor,then any such obligation shall be paid or satisfied solely from Grantor's portion of the Proceeds of Sale. 1. Eminent Domain. The Conservation Easement may only be extinguished due to Eminent Domain, in whole or in part, by judicial proceeding. Whenever all or part of the Property is taken by eminent domain,threatened to be taken by an entity with the power of eminent domain, or acquired, or sought to be acquired, by negotiated sale in lieu of condemnation,whether by public,corporate,or other authority,Grantor shall immediately give notice to Grantee and Fund,and shall take all appropriate actions related to such taking or negotiated sale in coordination with and with the prior written approval of Grantee and Fund, to recover the full fair market value (without regard to any diminution in value attributable to the Conservation Easement) of the taking or acquisition and all incidental, direct, and severance damages resulting from the taking or acquisition. Grantee, its successors and assigns, shall be entitled to its proportionate share of the Proceeds of Sale according to Grantee's proportional interest in the value of the Property as determined under Treasury Regulations §1.170A-14(g)(6)(ii) or any successor regulation. As such designation is allowed by N.C.G.S. §146-30(a), Grantee shall use its share of the Proceeds of Sale in a manner consistent with the purpose(s) of the Conservation Easement as set forth herein.Notwithstanding the foregoing,all Proceeds of Sale shall be distributed among the Parties according to each Party's respective contribution to the purchase price of the Property and this Conservation Easement as specified above. Nothing herein limits Grantee's right to be included as a named party in any eminent domain action or its right to just compensation for the taking of its property interest. NCLWF Property CE Template—rev.Oct 2023 10 of 18 16 2. Changed Conditions.If subsequent,unexpected change in conditions surrounding the Property makes impossible or impractical the continued use of the Property or any part thereof for the purposes of this Conservation Easement as set forth herein,the Conservation Easement may only be extinguished in whole or in part by judicial proceeding. If this Conservation Easement is extinguished,in whole or in part,by judicial proceeding because of changed conditions, Grantee, its successors and assigns, shall be entitled to its proportionate share of the Proceeds of Sale according to Grantee's proportional interest in the value of the Property as determined under Treasury Regulations §1.170A-I 4(g)(6)(ii) or any successor regulation. As such designation is allowed by N.C.G.S. §146-30(a), Grantee shall use its share of the Proceeds of Sale in a manner consistent with the purpose(s) of the Conservation Easement as set forth herein. Notwithstanding the foregoing, all Proceeds of Sale shall be distributed among the Parties according to each Party's respective contribution to the purchase price of the Property and this Conservation Easement as specified above. Nothing herein limits Grantee's right to be included as a named party in any judicial proceedings related to changed conditions. D. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury or change in the Property resulting from the acts of third parties not authorized by Grantor, or from causes beyond Grantor's control,including,without limitation,fire,flood,storm,and earth movement,or from any prudent action taken in good faith by Grantor under emergency conditions to prevent, abate,or mitigate significant injury to life,property, or the Property,resulting from such causes. E. Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of this Conservation Easement against Grantor,including,without limitation,any costs of restoration necessitated by Grantor's acts or omissions in violation of the terms of this Conservation Easement, shall be borne by Grantor. F. No Waiver. Any forbearance by Grantee to exercise its rights hereunder in the event of any breach of any term set forth herein shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or of any other term of this Conservation Easement or of Grantee's rights. No delay or omission by Grantee in exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. ARTICLE V. TITLE Grantor covenants,represents, and warrants(i)that Grantor is the sole owner and is seized. of the Property in fee simple and has good right to grant and convey this Conservation Easement, (ii) that there is legal access to the Property, (iii) that the Property is free and clear of any and all encumbrances, except those permitted exceptions outlined below, none of which would nullify, impair, or limit in any way the terms or effect of this Conservation Easement, (iv) that Grantor shall defend its title and Grantee's title against the claims of all persons whomsoever, and(v)that Grantee, its successors and assigns, shall have the right to monitor and defend the terms of this NCLWF Property CE Template--rev.Oct 2023 11 of 18 17 Conservation Easement. The following are permitted exceptions to the above covenants, representations, and warranties: ARTICLE VI. MISCELLANEOUS A. Stewardship of the Conservation Easement. Pursuant to the terms of the Grant Contract and any contract for stewardship of the Property entered into pursuant to the Grant Contract,ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY, INC will monitor and observe the Property in perpetuity to assure compliance with the purposes and provisions of this Conservation Easement and the provisions of the Grant Contract, and that it will report on the condition of the Property, or provide for such reporting,to State and Fund no less frequently than once a year,and further will report immediately to State and Fund any observed and/or known violations of this Conservation Easement or the Grant Contract. The Parties acknowledge that the associated stewardship monies awarded under the Grant Contract are administered pursuant to N.C.G.S. §143B-135.236 which establishes the North Carolina Conservation Easement Endowment Fund,or any successor law, and Fund's internal policies and procedures, and that ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY, INC's obligation to monitor the Property at any given time is contingent on the availability of said stewardship funds. Further,the Parties acknowledge that this obligation to monitor the Property is assignable provided such assignment is made with the prior written approval of Fund and evidenced by a written instrument signed by the Parties thereto and recorded in the Office of the Register of Deeds of Orange County. Provided further,that any such assignment of ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY, INC's obligation to monitor the Property shall include a right of entry onto the Property for the assignee of said monitoring obligation, and shall require the monitoring to be carried out in accordance with and subject to N.C.G.S. §I43B-135.236 or any successor law, and Fund's internal stewardship policies and procedures. The Parties specifically acknowledge that neither ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY,INC]'s obligation to monitor the Property,nor its assignment of said obligation, shall have any effect on the rights and obligations of Grantee of this Conservation Easement. Further, the Parties covenant that the obligation to provide monitoring of the Property will survive any transfer of Grantor's fee interest in the Property. B. Subsequent Transfers of the Fee or Other Interests; Licenses. Grantor agrees for itself,its successors and assigns,that in the event it intends to transfer the Property,any interest in the Property,or any license to use the Property,to notify Grantee and Fund in writing of the names and addresses of any party to whom the Property, any interest in the Property, or any license to use the Property, is to be transferred,the nature of the interest or license to be transferred, and the terms and conditions of the intended transfer, at least sixty(60)days before the transfer is intended to be consummated. Grantor, for itself, its successors and assigns,further agrees to make specific reference to this Conservation Easement in a separate paragraph of any subsequent lease, deed, license, or other legal instrument by which any interest or license in the Property is conveyed. The Property owner shall not convey the Property or any interest or license therein,and shall not incur,assume,or suffer to exist any lien,upon or with respect to the Property, without disclosing to the prospective transferee the Conservation Easement,the obligations of the NCLW F Property CE Template—rev.Oct 2023 12 of 18 18 Property owner,and the limitations on use of the Property.No interest or license in the Property shall be transferred except in writing in accordance with the above. Nothing in this Paragraph abrogates or limits Paragraph J of Article III hereof. C. Subsequent Transfers of the Conservation Easement. The Patties hereto recognize and agree that the benefits of this Conservation Easement are in gross and assignable with any such assignee having all the rights and remedies of Grantee hereunder.The Parties hereby covenant and agree,that in the event this Conservation Easement is transferred or assigned,the transferee or assignee of the Conservation Easement will be a qualified organization as that term is defined in Section 170(h)(3) of the Internal Revenue Code of 1986 (the"Code"), as amended, or any successor section, and the regulations promulgated thereunder that is organized or operated primarily for one of the conservation purposes specified in Section 170(h)(4)(A) of the Code, a qualified holder as that term is defined in the Act or any successor statute, and a qualified grant recipient pursuant to N.C.G.S. Chapter 14313,Article 2, Part 41. The Parties further covenant and agree that the terms of the transfer or the assignment will be such that the transferee or assignee will be required to continue to carry out in perpetuity the purpose(s) of the Conservation Easement that the contribution was originally intended to advance as set forth herein,but acknowledge specifically that any transfer or assignment of the Conservation Easement shall have no effect on ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLY,INC's obligation to provide stewardship of the Conservation Easement as set forth in this Article VI. D. Existing RespQnsibilities 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 Grantee, or in any way to affect any existing obligation of Grantor as owner of the Property. Among other things,this shall apply to: 1. Taxes. 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, Grantor shall reimburse Grantee for the same. 2. Upkeep and Maintenance. Grantor shall continue to be solely responsible for the upkeep and maintenance of the Property to the extent it may be required by law. Grantee shall have no obligation for the upkeep or maintenance of the Property. 3. Liability and Indemnification. If Grantee is ever required by a court to pay damages resulting from personal injury or property damage that occurs on the Property, Grantor shall indemnify and reimburse Grantee for these payments,as well as reasonable attorneys' fees and other expenses of defending itself, unless Grantee has committed a deliberate act that is determined to be the sole cause of the injury or damage. NCLW F Property CE Template—rev.Oct 2023 13 of 18 19 E. Conservation Purpose. Granter and Grantee, each for itself,and its respective successors and assigns, agree that this Conservation Easement shall be held exclusively for conservation purposes set forth by the Grant Contract,this Conservation Easement and as specified in Section 170(h)(4)(A)of the Code. Further,this Conservation Easement shall be construed to promote the purposes of the Act and such purposes of this Conservation Easement as are defined in Section 170(h)(4)(A)of the Code. F. Recording. Grantee shall record this instrument and any amendment hereto in the official records of Orange County,North Carolina, and may re-record it at any time as may be required to preserve Grantee's rights. G. Notices. Any notices shall be sent by registered or certified mail,return receipt requested,to the Parties at their addresses shown below,and each Party may update its information by a notice sent in accordance with this Paragraph: If to Grantee: If to Grantor: State of North Carolina Grange County NC Land and Water Fund PO Box 8181 1651 Mail Service Center Hillsborough,NC 27278Raleigh,NC 27699-1651 H. Amendments. Grantor and Grantee, or their successors in interest in the Property, are free to jointly amend this Conservation Easement,provided that no amendment will be allowed that is inconsistent with the purposes of this Conservation Easement or affects the perpetual duration of this Conservation Easement. Such amendments require the prior written approval of both Grantor and Grantee and shall be effective upon recording in the public records of Orange] County,North Carolina. I. Environmental Condition of the Pro e . Grantor warrants,represents, and covenants to Grantee that to the best of its knowledge after appropriate inquiry and investigation: (a)the Property described herein is and at all times hereafter will continue to be in full compliance with all federal, state,and local environmental laws and regulations,(b) as of the date hereof, there are no hazardous materials,substances,wastes,or environmentally regulated substances(including, without limitation, any materials containing asbestos) located on, in, or under the Property or used in connection therewith, (c)that there are no environmental conditions existing on the Property that may prohibit or impede use of the Property for the purposes set forth herein,and(d)Grantor will not allow such conditions. J. Indemnity. Grantor agrees to the fullest extent permitted by law,to protect, indemnify,and hold harmless Grantee from and against all claims, actions, liabilities,damages, fines,penalties,costs,expenses, and attorneys' fees suffered or incurred as a direct or indirect result of any violation of any federal, state,or local environmental or land use law or regulation or of the use or presence of any hazardous substance,hazardous waste,or other regulated material in, on, or under the Property. NCLWr Property CE Template--rev.Oct 2023 14 of 18 20 K. Entire Agreement. The Recitals set forth above and the exhibits, if any, attached hereto are incorporated herein by reference. This instrument, including the Grant Contract incorporated by reference herein, sets forth the entire agreement of the Parties with respect to the Project and supersedes all prior discussions,negotiations,understandings,and agreements relating to the Project. To the extent that this Conservation Easement is in conflict with the Grant Contract,the terms of this Conservation Easement shall control. L. Interpretation and Severance. This Conservation Easement shall be construed and interpreted under the laws of the State and the United States,and any ambiguities herein shall be resolved so as to give maximum effect to the conservation purposes sought to be protected herein. The normal rule of construction of ambiguities against the drafting party shall not apply in the interpretation of this Conservation Easement. Further,this Conservation Easement shall be construed to promote the purposes of the Act,which authorizes the creation of conservation agreements for purposes including those set forth herein, and such conservation purposes as are defined in Section 170(h)(4)(A) of the Code. If any provision of this Conservation Easement is found to be invalid,the remainder of the provisions of this Conservation Easement,and the application of such provisions to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby and shall remain in full force and effect. M. Parties. Every provision of this Conservation Easement that applies to Grantor or to Grantee or to Fund shall likewise apply to their respective executors, administrators, successors, and assigns. N. No Extinguishment through Meng The Parties agree that the doctrine of extinguishment by merger shall not apply to this Conservation Easement because of the public interest in its enforcement. The Parties agree that this Conservation Easement and its terms shall survive any coming together of the ownership of the fee interest in the Property and the Conservation Easement interest, and that this Conservation Easement shall not be merged into the fee interest. Further,the Parties agree that if Grantee, or any successor in interest to Grantee, acquires title to any fee interest in the Property subject to this Conservation Easement, (i) said owner shall observe and be bound by the obligations and the restrictions imposed upon the Property by this Conservation Easement and(ii)this Conservation Easement shall not be extinguished through the doctrine of merger in any way in view of the public interest in its enforcement. Q. Subsequent Liens. No provision of this Conservation Easement shall be construed as impairing the ability of Grantor to use the Property for collateral for borrowing purposes, provided that any mortgage or lien arising therefrom shall be subordinate to this Conservation Easement. P. Gender. The designations Grantor,Grantee, State, and Fund, as used herein shall include the persons or entities indicated and their administrators,successors, and assigns, and shall include the singular,plural,masculine, feminine, or neuter as the context may require. NCI,W F Property CE Template—rev.Oct 2023 15 of 18 21 Q. Headings. The headings of the various sections of this Conservation Easement have been inserted for convenience only and shall not modify, define, limit, or expand the express provisions of this Conservation Easement. TO HAVE AND TO HOLD unto Grantee, its successors and assigns,forever. The covenants agreed to and the terms,conditions,restrictions, and purposes imposed as aforesaid shall be binding upon Grantor and Grantor's representatives, successors and assigns,and shall continue as a servitude running in perpetuity with the Property. [See next page for signatures and notary acknowledgement] NCLWF property CE Template—rev.Oct 2023 16 of 18 22 IN WITNESS WHEREOF,Grantor, by authority duly given,has hereunto caused these presents to be executed under seal in such form as to be binding, the day and year first above written, and Grantee accepts this Conservation Easement by the recording hereof in the public records. GRANTOR: ORANGE COUNV, A LOCAL BODY POLITIC By: (SEAL} (Name of Person Signing) (Title of Person Signing) ATTEST: By: (Name of Corporate Secretary) Corporate Secretary [Affix Corporate Seal] STATE OF NORTH CAROLINA COUNTY OF I,the undersigned Notary Public of the aforesaid county,North Carolina, do hereby certify that(Name of Attester)personally appeared before me this day and acknowledged that he/she is the Corporate Secretary of( Jame of Granto), a nonprofit corporation, and that by authority duly given and as the act of the corporation,the foregoing instrument was signed in its name by its(Title of Person signing for Grantor), (Name of person signing.for Grantor, sealed with its corporate seal, and attested by himself/herself as its Corporate Secretary. Witness my hand and notarial seal this the day of 2 Notary Public: Printed Name: My commission expires: STAMP/SEAL NCLWF Property CE Template—rev.Oct 2423 17 of 18 23 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY PROPERTY OF TOWNSHIP COUNTY,NORTH CAROLINA [Insert legal description] Together with those rights of access described on page(s) of this Conservation Easement. NCLWF Property CE'remplate—rev.Oct 2423 18 of 18