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HomeMy WebLinkAboutAgenda - 11-07-2024; 8-f - Resolution of Approval – Donated Conservation Easement on Property of William Bruce and Phyllis Richmond 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 7, 2024 Action Agenda Item No. 8-f SUBJECT: Resolution of Approval — Donated Conservation Easement on Property of William Bruce and Phyllis Richmond DEPARTMENT: Environment, Agriculture, Parks and Recreation (DEAPR) ATTACHMENT(S): INFORMATION CONTACT: 1. Resolution of Approval David Stancil, 245-2510 2. Location Map Christian Hirni, 245-2514 3. Site Map 4. Survey Plat 5. Draft Conservation Easement PURPOSE: To adopt a resolution approving the acceptance by Orange County of a conservation easement for the William Bruce and Phyllis Richmond property. BACKGROUND: The acquisition of conservation easements to protect highly important natural and cultural resource lands in Orange County is a longstanding goal of the Board of Commissioners and is a priority of the Lands Legacy program. Since 2001, the County has partnered with landowners and other entities to protect 2,973 acres of significant natural areas and prime farmland with permanent conservation easements, leveraging well over $3 million in outside funding and grants toward these easements. Over the past year, DEAPR has worked with the Richmond family on a project to conserve approximately 36 acres of land located off Richmond Road in the Cheeks Township. The entirely forested property is in the in the Upper Eno (Falls Lake) Watershed in Cheeks Township. The property contains just under 5,000 linear feet of McGowan Creek, a primary tributary to the Eno River, and a valuable source of drinking water for the Town of Hillsborough. In addition, much of the site is listed as prime farmland and farmland of State significance via the US Department of Agriculture (USDA) Natural Resource Conservation Service database. The property is forested and creates a large buffer to McGowan Creek and its tributaries. The area being offered in easement is also listed in the Eno-New Hope Landscape Conservation Report as General Wet-Mesic Hardwood Forests Wildlife Corridor. These factors combined make conservation of this tract a high priority for the Lands Legacy Program. The Richmonds intend to donate a permanent conservation easement that will restrict future development to protect prime open space and streams, while allowing for limited agricultural or 2 forestry uses outside of the required stream buffers. All other non-agricultural and residential development rights will be extinguished through the conservation easement. The planned conservation easement areas are depicted on the attached survey plat. The draft deed of conservation easement is also provided. FINANCIAL IMPACT: As the value of the conservation easement will be donated, the only costs to the County will be transactional and closing costs, part of which is subsidized by a State of North Carolina Land and Water Fund grant. DEAPR worked with the Eno River Association to identify the NC Land and Water Fund grant as follows: Orange County (Conservation Easement Fund) $ 16,500 NC Land and Water Fund (NCLWF) 10,780 $ 27,280 (transaction) The closing and transactional costs bring the estimated total at closing to $28,000. Funds for the easement purchase would come from Orange County ($16,500 for survey) and NCLWF ($10,780 for contract administration, legal and closing costs). The County's share of funds ($16,500) would come from existing funds budgeted and approved for the Lands Legacy program (Conservation Easement Fund). The Richmond property is enrolled in the Present Use Value taxation program, so the conservation easement would not lessen the amount of property taxes paid to the County. There would be no decrease in the property's market value caused by the conservation easement (and extinguishing of portion of its development rights) since it would not lower the property value to a level that is less than the current present use value. With this allocation, approximately $1.49 million remains available in the Conservation Easement Capital Project. ALIGNMENT WITH STRATEGIC PLAN: This item supports: • GOAL 1: ENVIRONMENTAL PROTECTION AND CLIMATE ACTION OBJECTIVE 6. Protect water supply/watersheds. OBJECTIVE 7. Conserve and protect high priority open space, including Natural Heritage sites, nature preserves, watershed riparian buffers, and prime/threatened farmland. RECOMMENDATION(S): The Manager recommends that the Board adopt and authorize the Chair to sign 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 County Attorney, with a closing and recordation of the document expected to occur on or about January 30, 2025. 3 RES-2024-060 Attachment 1 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Conservation Easement between Orange County and Wiliam Bruce and Phyllis Richmond WHEREAS, Orange County has adopted goals that promote the preservation of natural areas, wildlife habitat, prime farmland, and open space in the County; and WHEREAS, Orange County established the Lands Legacy Program for the purpose of protecting the most significant natural and cultural resources through partnerships with landowners and other conservation entities; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on riparian buffers within water supply watersheds; and WHEREAS, the William Bruce and Phyllis Richmond property includes approximately 36 acres in the Upper Eno protected watershed that includes almost 5,000 linear feet of McGowans Creek, a direct tributary to the Eno River, a drinking water supply for the Town of Hillsborough and eventually the cities of Durham and Raleigh; and WHEREAS, William and Phyllis Richmond, the owners of the property, wish to grant a permanent conservation easement to Orange County, which will protect the forested riparian corridors on the property; and WHEREAS, a conservation easement on this approximately 36 acres would ensure the preservation of this forested property and stream buffers for future generations; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the conservation easement for land owned by William and Phyllis Richmond; 2) approve the execution of this conservation easement agreement with William and Phyllis Richmond, in accordance with the terms of the proposed easement agreement, subject to final review by staff and the County Attorney; 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 January 30, 2025; and 4) authorize County staff to sign any and all closing documents upon consultation with the County Attorney. BE IT FURTHER RESOLVED that the Board thanks William and Phyllis Richmond for their civic-minded granting of this conservation easement through the Lands Legacy Program. This the 7t" day of November, 2024. Jamezetta Bedford, Chair Orange County Board of Commissioners Laura Jensen, Clerk to the Board William Bruce Richmond CE- Context 4 t HAVENVIEW TRL � 1 � TC `Q Sq Y LEE ST tV' PENROSE PL HARMONY LN t ; J ��v z y/GYRO p �O U HALLS MILL RD S z ,o a t w W <'m m c ' c w O rr z o tZ ut co Of Po -A m a w C_ N Z LU = z T O J U O ° m Q Z LiJ co K J AMBER DR ° Q LL } ` LEBANON RD w D .�T �FwSgLOUORJ t 1 o o° F- G o+� ° m Y li Ut g DALTpNDR t m n j O Y ltigSy/I RED GATE RD t e* N cToNs o� �a� r ^ o { \ C O 0 W US 70 O GYM RD OQ Z / SOU,THERN DRr�� 6� � � ° 185N1.40 < D 185 S 140—W z - o DANNY R Min �RDI Z w p o WEST TEN RD BpW Ao w } _ cn A Uj op 0 R� T G � t G vsN�GOp�RO e��`e , �, E Tract Information: 0 1,375 2,750 5,500 8,250 11,000 Feet Legend Landowner: William Bruce ORANGE COUNTY Roads Richmond Streams Lat: 36' 05.79" Long: 79' 11.82" +' Tract Boundary Date: 02/22/2022 � Open Space-Other Image: 2017 Aerial Photo Created By: Christian Hirni 0 County Open Space Acres: 118 Total Department of Environment, ® County Easements Agriculture, Parks&Recreation ® Conservation Easements CityBoundary William Bruce Richmond- McGowan Creek Buffer Easement � uu/ N w a .4, � T I y h� i 4 i ff i I Tract Information: 0 145 290 580 870 1,160 Feet Legend Landowner: William Bruce ORANGE COUNTY Richmond Roads Lat: 36' 05.79" Long: 79' 11.82" 4 Streams Date: 10/16/2022 Easement Boundary Image: 2021 Aerial Photo Created By: Christian Hirni L Tract Boundary Acres: 118 Total Department of Environment, Tax Parcels Conservation Easement: 37.5 Agriculture,Parks&Recreation (300 feet buffer+Access) 4 1� 11 1"4 1-ZIT�I, IT 1--Attachment 4 2� 1, 11 �4 M. I i tt r L pr T=�FZZ' 41, 411 L 11 7 IZZ1.1-1 ZZ,ft=. -I.' = 'R EASEMENT-ON TABLE ORIGINAL LOT AREAS.- III E PM:, S.F.9845-13-1753 2.2 9 063.5 21 51.861 Acres .7 21-271 E il 11 PIN:9845-24-2367 E N'12114" NEW LOT AREA: TRACT A CONSERVATION TOTAL AREA WCL.ERO& CONSERVATION EN EASEMEN T 5.159l00.8 S.F. 118.655 AREA INCL.RdW&EXCL. s F"T CON�,E VA T 0 EASEMENT A 55 HE.�4 CONSERVATION EASEMENT -7 h*971 CEN-NE OF is PROFFIOPF ST I O'E"4'" WHI 7.15 Z-� PROP-IANE mu TEA ---- -------------- A Sbc CERTIFICATE OF OWNERSHIP MM=.C.M�WE N.tl I. GRANT:E111 I'L NOLER CE-E OF CRIEEK 4 ID:IS PROPERTY IARE OKI CONSERVATION EASEMENT �y 1V H�7==51=0�160="0. ------ AND RECOMBINATION PLAT FRGPER7Y CONSERVATION f OF --Dr XX WILLIAM BRUCE RICHMOND - EASEMENT .11-22-- & PHYLLIS B. RICHMOND PIN REFERENCE:9845-24-2367 W -CT 2 `-T OF SVEYEY-F B RICHMOND A.EDCAARC- �E.lip -------- PIN REFERENCE:9845-13-1753 LEGAL DESC TDASEFY CIEDEE ------ DEED REFERENC-D.B.6768,PG.2364 DB 41GA,PG.0209 PL PI-REFERENCES:D.B...3615,-SS71 o..'CO.I`- PB DOES,PG.0078 P.B.-,P..I,- P.B.0113,PG.0173 P.B.0114,PG.0081 P.B.OISI,PG.0179 OWNER'S ADDRESS CHREER TOWNSEH ORANGE C­ FORDNE IARO.. R- FAL IS,-4 SCACE:I" SURVE1 111 (1,-4 ,!nnkFREEHOLD LAND SURVEYS, INC. C-165 EEGE40 7 Attachment 5 This instrument prepared by and return to: John Roberts,Orange County Attorney., P.O.Box 8181,Hillsborough,NC 27278 NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF CONSERVATION EASEMENT for WILLIAM BRUCE RICHMOND This [Grant of] Conservation Easement(hereinafter "Conservation Easement") is made the _day of , 20_by and between William Bruce Richmond, having an address at 35 Sagamore Lane, Greenville, South Carolina 29607, (hereinafter "Grantors") and Orange County,North Carolina, having an address of Post Office Box 8181, Hillsborough,NC 27278 (hereinafter"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 Grantors are the sole owners in fee simple, of certain real property(the "Property")which consists of approximately acres of land, located in Cheeks Township, Orange County,North Carolina and identified as that portion of Tract that is not depicted as " " on the plat of property titled"Property of ,"prepared by , Inc., which plat is recorded at Plat Book_, Page , Orange County Registry(hereafter referred to as "the recorded plat") (part of PINS (Parent) ). The Property includes access roads and other improvements, which are shown on Exhibit A, attached hereto and incorporated herein. B. The Grantee is a body politic existing under Chapter 153A of the North Carolina General Statutes. C. To the extent practicable, the Grantors wish to maintain the Property as a woodland suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to maintain the Property for certain private outdoor recreation uses as more particularly 8 described herein, and to protect the quality of water running off from this land and into McGowan Creek,which river also has conservation value. The grant of this Conservation Easement will further said wish, and will serve the following "Conservation Purposes," as such term is defined in Section 170 (h)(4)(A) of the Code: The Easement Area 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 contains complex natural communities including: bottomland hardwood forest dominated by hardwood wetland trees; McGowan Creek, a large wetland, and two feeder streams; upland forest dominated by beech, oaks, hickories, and large pines; a diverse forested habitat for several species of birds; and natural depressions in low-lying areas that provide breeding sites for salamanders. It is a primary purpose of this Conservation Easement to protect the undeveloped nature of the Easement Area and, in doing so, to support and help protect the natural area and wildlife habitat associated with this area. The Easement Area contains an significant segment of McGowan Creek, which the State of North Carolina identifies as "WS-II;HQW,NSW", defined as a High Quality Waterway and Nutrient Sensitive Waters. McGowan Creek is a primary tributary to the Eno River, and provides drinking water to the Town of Hillsborough, as well as downstream to the Upper Neuse Watershed. It is a specific objective of Orange County in its 2030 Comprehensive Plan, to minimize impact of non-point and point source pollution. Another primary purpose of this Easement is to protect the undeveloped nature of the Easement Area and, in doing so, help to protect the water quality associated with McGowan Creek. The Easement Area also contributes to the open space and rural character of this section of Cheeks Township. Portions of the easement area have been or will be developed for the benefit of low impact recreation for the tenants of the Array development. It is a further purpose of this Conservation Easement to help to protect the rural character and open space of Bingham Township. The natural habitat of the Easement Area, and its contribution to the protection of McGowan Creek water quality, as well as the open space and rural character of Cheeks Township are collectively referred to as the "conservation values" of the Easement Area. The Grantor and Grantee agree that the current uses of and improvements to the Easement Area are consistent with the conservation purposes of this Conservation Easement. The conservation purposes of this easement, notwithstanding anything to the contrary contained herein, are also recognized by, and this Conservation Easement will also serve, the following clearly delineated governmental conservation policies:: Page 2 of 17 9 (1) the Orange County Board of Commissioners' goal (adopted June 21, 1999)to identify and coordinate the preservation of the County's most significant natural areas; and (2) the Land Use Element of the Orange County Comprehensive Plan(adopted November 18, 2008)with its goal of"Land uses that are appropriate to on-site environmental conditions and features, and that protect natural resources, cultural resources, and community character;" (3) the protection of similar Orange County properties designed to protect conservation and open space values through conservation easements granted to the Grantee and others in the vicinity of the Grantors' Property; and (4) Article 17 of the North Carolina General Statutes NCGS 113A-24, entitled Conservation, Farmland and Open Space Protection and Coordination, otherwise known as the "Million Acre Initiative,"which provides that the State of North Carolina shall encourage, facilitate,plan, coordinate, and support appropriate federal, State, local, and private land protection efforts so that an additional one million acres of farmland, open space and conservation lands in the State are permanently protected by December 31, 2009; and (5) the Clean Water Management Trust Fund,North Carolina General Statute 113-145.1 et seq., which recognizes the importance of protecting riparian buffers in conserving clean surface water; and (6) the Soil and Water Conservation Districts Act, authorized by NCGS § 139-1, et seq., which provides for the preservation of farm, forest and grazing lands; and (7) the special present use value assessment of farm and forestland as set forth in NCGS § 105-277.2 et seq., which allows for lower property tax rates for land enrolled in active agricultural uses. The natural resources and natural habitat of the Grantors' Property, and its contribution to the protection of the natural, open space, and rural character of northern Orange County are collectively referred to as the "Conservation Values" of the Property. D. The characteristics of the Property, its current use and state of improvement, are depicted on an Orange County GIS map and sketch of the Property and other adjoining property of Grantors prepared by Grantee for the Grantor, which is attached as Exhibit A to this Conservation Easement and incorporated herein by reference. The Grantors worked with the Grantee to ensure that the GIS map and sketch is a complete and accurate description of the Property as of the date of this Conservation Easement. It will be used by the Grantors and Grantee to assure that any future changes in the use of the Property will be consistent with the terms of this Conservation Easement. However, the GIS map and sketch is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a controversy over its use. The Grantors and Grantee have copies of Exhibit A. The original of Page 3 of 17 10 Exhibit A will remain on file at the Orange County Department of Environment, Agriculture, Parks and Recreation. E. The Grantors and Grantee have the common purpose of conserving the above-described conservation values of the Property 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 G.S. § 153A-176 and G.S. § 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, farming, or forest uses," and the Grantors and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, the Grantors, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby give, grant and convey 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 Property of the nature and character as follows: Except as otherwise reserved to the Grantors in this Conservation Easement, the parties agree that all development rights appurtenant to the Grantors' Property are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of the Grantors' Property as it now or hereafter may be bounded or described, or used or transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Grantors' Property or any other property. 1. PURPOSE. The purposes of this Conservation Easement are to ensure that the Property will be retained forever predominantly in its natural, scenic, forested, and/or open space condition; to protect native plants, animals, or plant communities on the Property, while allowing traditional uses on the Property that are compatible with and not destructive of the conservation values of the Property such as selective timber harvesting, grazing and farming of pastures and fields, and hunting; and to prevent any use of the Property that will impair or interfere with the conservation values or interests of the Property. As authorized in the Uniform Conservation and Historic Preservation Act,N.C. Gen. Stat. § 121-34 et seq., this Conservation Easement is perpetual; it restricts the Grantor's property in perpetuity; and it is enforceable by Grantee against the Grantors and the Grantors' representatives, heirs, successors and assigns, lessees, agents, and licensees. Grantors will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantors to take any action to restore the condition of the Easement Area after any act of God or other event over which Grantors had no control. Grantors understand that nothing in this Page 4 of 17 11 Conservation Easement relieves them of any obligation or restriction on the use of the Easement Area imposed by law. 2. PROPERTY 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, scenic and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantors and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantors are set forth in Paragraph 3 below. 2.1 Conveyance and Subdivision. The Easement Area consists of 37.5 acres contiguous areas of the Property. The Easement Area shall not be further divided, subdivided, or partitioned.No property interest in the Easement Area, including, but not limited to the fee simple interest, shall be further divided, subdivided, or partitioned. Without limiting the foregoing, the individual areas included in the Easement Area shall not be conveyed except all together in undivided ownership and in their current configuration. 2.2 Open Space and Development Rights. The Easement Area 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. 2.3 Construction. Grantors shall have the right to construct and maintain a dock, boardwalk, and picnic shelter within the Easement Area. Grantors may construct driveways, utilities and a well to serve the picnic shelter. The new construction shall be sited so as to cause minimal disturbance to the conservation values of the Easement Area. The location and design of the new construction shall be subject to the approval of the Grantee; Grantee agrees that if the location and design of the new building meets the above standards its approval shall not be unreasonable withheld. No other structures may be placed or constructed on the Easement Area. Furthermore, there shall be no constructing or placing of any recreational court, airplane landing strip, billboard or other advertising display,utility pole (other than those necessary to service the Easement Area's improvements), utility tower, conduit or line on or above the Easement Area. Outdoor lighting shall be placed and shielded so as to minimize the impact on surrounding areas. 2.4 Existing Improvements. Grantors shall have the right to maintain, remodel, and repair existing structures,water tanks, water wells, fences, utilities, and other improvements, and in the event of their destruction, to reconstruct any such existing improvements with another of similar size, function, capacity, location and material so long as authorized by Orange County zoning regulations and consistent with permits required by and issued by Orange County under its laws and ordinances for such reconstruction. Page 5 of 17 12 2.5 Agricultural Use. Grantors shall have the right to i)breed, raise, and pasture livestock in existing fields in the Easement Area, ii)to breed and raise bees, fish,poultry and other fowl in existing facilities on the Easement Area, and iii) to plant, raise and harvest crops in existing fields in the Easement Area. Grantors may not establish or maintain any commercial feeder operation on the Easement Area, which is defined for the purpose of this easement as an intensive animal raising operation that takes place within a building and none of the feed is produced on the tract, and the processing is fully or partly automated. 2.6 Timber Harvest. Grantors shall have the right to harvest timber from the Easement Area pursuant to a Forest Management Plan, to be updated at least every 10 years, that is prepared by a registered professional forester and reviewed by Grantee and that is designed to insure the maintenance of good quality, native growing stock of timber, while protecting soil stability, water quality and other conservation values of the Easement Area, including without limitation, riparian and wildlife habitat and scenic values. All timbering activities shall be conducted only in accordance with Best Management Practices guidelines for timber harvest and management as the same may be promulgated by law or regulation in the state of North Carolina and as adopted by the North Carolina organization of professional foresters, as amended from time-to-time and provided further that all such activities shall be either specifically approved by the Grantee or shall be in accordance with a Forest Management Plan which shall be in writing and approved by both Grantors and Grantee, and provided further that all timber roads shall be constructed of permeable materials and shall be no wider than twelve (12) feet. 2.7 Grazing. Grantors shall not graze or pasture domestic animals on any portion of the Easement Area for commercial purposes. This shall not prevent the grazing or pasturing of animals for Grantors' or their guests recreation, or used in connection with activities expressly allowed on the Property. 2.8 Home Business. No commercial or industrial enterprise, other than a small home-based business or enterprise conducted by and in the home of a person residing on the Easement Area and consistent with the conservation values and interests of the Property, is allowed. Any such commercial or industrial use of the Grantors' Easement Area must be authorized by Orange County zoning regulations and be consistent with permits required by and issued by Orange County under its laws and ordinances for such land uses. 2.9 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantors shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Property, including, but not limited to, hiking, camping,picnicking, horseback riding, non-motorized bicycling, lawful hunting and fishing, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land so long as authorized by Orange County zoning regulations and consistent with permits required by and issued by Orange County under its laws and ordinances. Pursuit of wildlife by any form of motorized transportation is not allowed. Grantors reserve the right to promulgate and enforce reasonable rules and regulations Page 6 of 17 13 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 value of the Easement Area. 2.10 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 allowed above, b)the maintenance of roads, hiking, horseback and non-motorized vehicle trails permitted hereunder, and c) the combating erosion or flooding. 2.11 Destruction of Plants. Grantors shall have the right to cut and remove a) diseased trees, shrubs, or other plants; b)non-native or invasive trees, shrubs, or other plants; and c)to cut firebreaks. Grantors 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. Except for use around improvements or in gardens there shall be no planting of non-native trees, shrubs, or other plants in the Easement Area. Furthermore, except to accommodate the activities expressly permitted in this easement, there shall be no use of fertilizers,plowing, introduction of non-native animals, or disturbance or change in the natural habitat in any manner. 2.12 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 in 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 water courses, lakes, ponds, marshes, subsurface water or any other water bodies in the Easement Area. Diking, draining, filling or removal of wetlands is prohibited. 2.13 Natural Resource Restoration and Enhancement Activities. Grantor may engage or contract others to engage in any activity designed to repair, restore, or otherwise enhance the natural resources found or once present on the Easement Area, such as the restoration of the riparian forest corridors, so long as such activities are consistent with the Conservation Values of this Conservation Easement and consistent with a management plan prepared for this property and approved in advance by the Grantee. 2.14 Siege. No signs or billboards or other advertising displays are allowed on the Easement Area except as follows: signs authorized by Orange County zoning regulations whose placement, number and design do not significantly diminish the scenic character of the Easement Area may be displayed to identify trails and the conservation values of the Easement Area, to identify the name and address of the Property and the names of persons living on the Property, to give directions, to advertise or regulate permitted uses on the Easement Area and proscribe rules and regulations for recreational use of the protected Easement Area, to advertise the Property for sale or rent, and to post the Property against trespassers. Page 7 of 17 14 2.15 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides,rodenticides, and herbicides, except as approved by Grantee to control invasive species detrimental to the conservation values of the Easement Area. 2.16 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(except the short-term storage of household garbage and waste). 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 or on adjacent property owned by Grantors, that could cause erosion or siltation on the Easement Area. 2.17 Predator Control. Grantors 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 approved by the Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques. 2.18 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 otherwise consistent with this Conservation Easement. 2.19 Extinguishment of Development Rights. Except as otherwise reserved to the Grantors in this Conservation Easement, the parties agree that all development rights appurtenant to the Easement Area are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of the Grantors' Easement Area as it now or hereafter may be bounded or described, or used or transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Grantor's Property or any other property. 3. ADDITIONAL RIGHTS RETAINED BY GRANTORS. Grantors retain the following additional rights: (a) Existing. The right to undertake or continue any activity or use of the Property not prohibited by this Conservation Easement. Prior to making any change in use of the Property, Grantors 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 Property subject to the terms of this Conservation Easement. 4. GRANTEE'S RIGHTS. To accomplish the purpose of this Conservation Easement, the following rights are granted to Grantee by this Conservation Easement: Page 8 of 17 15 (a) Right to Protect. The right to preserve and protect the conservation values of the Property 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 prior written notice to Grantors, to enter the protected Property at reasonable times for the purposes of. (a) inspecting the protected Property to determine whether the Grantors, their representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and(b)monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations,plant communities and natural habitats on the Property. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or at Grantee's direction or with Grantee's permission shall be reported to Grantors. Grantors agree that all monitoring activity, inventory and assessment work or other natural resource research conducted by the Grantors or at Grantors' direction or with Grantors' permission shall be reported to the 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 Grantors prior to implementing control activities. 5. RESPONSIBILITIES OF GRANTORS AND GRANTEE NOT AFFECTED. Other than as specified herein,this Conservation Easement is not intended to impose any legal or other responsibility on the Grantors, or in any way to affect any existing obligation of the Grantors as owners of the Property. Among other things, this shall apply to: (a) Taxes - The Grantors shall be solely responsible for payment of all taxes and assessments levied against the Property. (b) Upkeep and Maintenance - The Grantee shall have no obligation for the upkeep or maintenance of the Property. The granting of this Conservation Easement shall not in and of itself be construed to create or impose upon the Grantors any obligation for the upkeep or maintenance of the Property except to the extent elsewhere required by this Conservation Easement. 6. ACCESS. No right of access by the general public to any portion of the Easement Area is conveyed by this Conservation Easement. However, the public has the right to view the Property from adjacent publicly accessible areas such as public roads and waterways. 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. Page 9 of 17 16 (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 Grantor's 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 terms 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 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 Grantor's Property to its condition prior 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 Grantors for any injury or change to the Property caused by third parties, or resulting from causes beyond the Grantors' control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantors under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Property or harm to the Property resulting from such action. 8. TRANSFER OF EASEMENT. Grantee has 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 seq., provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Deed. If Grantee ever ceases to exist or no longer qualify 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 THE PROPERTY. Grantors shall notify Grantee, in writing, at least thirty(30) days prior to any conveyance by Grantors of the Property or any interest in the Property, and the document of conveyance shall expressly refer to this Conservation Easement and, by its terms, the conveyance shall be made subject to and subordinate to this Conservation Easement. Page 10 of 17 17 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 amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act,N.C. Gen. Stat. § 121-34 et seq., or any regulations promulgated pursuant to that law. The Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. TERMINATION OF EASEMENT. If it is determined by a court with jurisdiction that conditions on or surrounding the Property have changed so much that it is impossible to fulfill the conservation purposes set forth above, a court with jurisdiction may, at the joint request of both the Grantor and Grantee, terminate this Conservation Easement. If condemnation of a part of the Property or of the entire Property by public authority renders it impossible to fulfill any of these conservation purposes, the Conservation Easement may be terminated by a court with jurisdiction. At the time of the conveyance of the Conservation Easement to the Grantee, this Conservation Easement gives rise to a real Property right, immediately vested in the Grantee. If the easement is terminated and the Property is sold or taken for public use, then, as required by Sec. 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of the gross sale proceeds or condemnation award(minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to the Grantor), equal to the ratio of the appraised value of this easement to the unrestricted fair market value of the Property, as these values are determined on the date of this Conservation Easement. The Grantee shall use the proceeds consistently with the conservation purposes of this Conservation Easement. 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 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 Property, 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 Page 11 of 17 18 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 percent(_%) of the Property's unrestricted value, subject to any applicable law that expressly requires for a different disposition of the proceeds. 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. INDEMNIFICATION AND INSURANCE. Grantor agrees to indemnify and hold Grantees 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 Grantees or their agents, in which case liability shall be as provided by law. In addition, Grantors agree to maintain liability insurance covering the Property with the limits as follows: (i) $300,000 per person for personal injury or death,up to $300,000 per occurrence; and(ii) $300,000 per occurrence for property damage; and warrant that Grantee is and will remain a named insured on Grantors' Property insurance policies covering the Property. Grantors 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. 15. TITLE. The Grantors warrant that they hold fee simple title to the Property, free from all encumbrances, except for those exceptions deemed by the Grantee as acceptable and set further in Exhibit C to this Conservation Easement, and hereby promise to defend the same against all claims that may be made against it. 16. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantors and Grantee, respectively, at the following addresses,unless a party has been notified by the other of a change of address. To Grantors: To the Grantee: William Bruce Richmond Orange County Department of Environment, Page 12 of 17 19 35 Sagamore Lane Agriculture, Parks and Recreation Greenville, South Carolina 29607 Orange County,North Carolina P.O. Box 8181 Hillsborough,NC 27278 17. ENVIRONMENTAL CONDITION. The Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property. 18. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. 19. PARTIES. Every provision of this Conservation Easement that applies to the Grantors or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. This Conservation Easement shall not be construed to benefit or to create any rights in any third parties, including but not limited to the general public. 20. RE-RECORDING. In order to ensure the perpetual enforceability of the Conservation Easement, the Grantee is authorized to re-record this instrument or any other appropriate notice or instrument. 21. MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Property. 22. SUBSEQUENT LIENS ON THE PROPERTY. No provisions of this Conservation Easement should be construed as impairing the ability of Grantors to use the Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 23. EXHIBITS AND DOCUMENTATION. (a) Documentation Report. The parties acknowledge that the Baseline Documentation Report dated , 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 Property as of the date hereof. See summary attached as Exhibit B. 24. 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. Page 13 of 17 20 25. 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. 26. ATTORNEY'S FEES. In connection with any litigation arising out of this Contract, the prevailing party shall be entitled to recover from the other party all costs incurred by it, including reasonable attorneys' fees, which shall include fees on appeal. TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee forever. Page 14 of 17 21 IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTORS: William Bruce Richmond Accepted: GRANTEE: ORANGE COUNTY,NORTH CAROLINA By: [ ], Chair Orange County Board of Commissioners ATTEST: Laura Jensen Clerk to the Board of Commissioners Page 15 of 17 22 Acknowledgments NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of Orange County,North Carolina do hereby certify that and wife personally appeared before me and acknowledged the due execution of the foregoing instrument. Witness my hand and notarial seal this the day of , 20_. Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of the County and State aforesaid, certify that Laura Jensen 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 notarial seal this the day of , 20_. Notary Public My commission expires: Page 16 of 17 23 EXHIBIT A. GIS MAP AND SKETCH OF PROPERTY EXHIBIT B. SUMMARY OF THE BASELINE DOCUMENTATION REPORT EXHIBIT C. PERMITTED EXCEPTIONS Page 17 of 17