HomeMy WebLinkAboutAgenda - 11-07-2024; 8-g - Resolution of Approval – Donated Conservation Easement on Property of Circular Design Construction, LLC (Array) 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: November 7, 2024
Action Agenda
Item No. 8-g
SUBJECT: Resolution of Approval — Donated Conservation Easement on Property of
Circular Design Construction, LLC (Array)
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 Circular Design Construction, LLC (Array) 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 Jodi Bakst and the development team of the Array
Subdivision on a project to conserve approximately 32 acres of the previously approved
subdivision located off Orange Grove Road in the Bingham Township. The development was a
BOCC approved flexible subdivision, with twelve (12) single family lots less than two (2) acres
each, and the remainder of the property held as open space for the enjoyment of the residents.
The entirely forested property is in the in the Haw River (Jordan Lake) Watershed in Bingham
Township. The property contains just under 2,400 linear feet of Collins Creek, a primary tributary
to the Haw River, which drains to Jordan Lake - a source of drinking water for the City of Raleigh
and other jurisdictions. In addition, the property is forested and creates a large buffer to Collins
Creek and its tributaries. The area being offered in easement is also listed in the Eno-New Hope
Landscape Conservation Report as Sparsely Settled and General Wet-Mesic Hardwood Forests
Wildlife Corridor. These factors combined make conservation of this tract a high priority for the
Lands Legacy Program.
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The owners intend to donate a permanent conservation easement that will restrict future
development to protect prime open space and streams while allowing for low-impact recreation
and uses. All other 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.
The closing and transactional costs bring the estimated total at closing to $12,000. Funds for the
easement purchase would come from existing funding in the Orange County Lands Legacy
Program Conservation Easement Fund ($12,000 for contract administration, legal and closing
costs).
This portion of the Array subdivision 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.
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RES-2024-061 Attachment 1
ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION
Approval of Conservation Easement
between
Orange County
and
Circular Design Construction, LLC (Array)
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 Circular Design Construction, LLC (Array) property includes approximately 32
acres in the Upper Eno protected watershed that includes almost 2,400 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, Circular Design Construction, LLC (Array), the owners of the Array 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 32 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 Circular Design Construction, LLC (Array) 2) approve the execution of this conservation
easement agreement with Circular Design Construction, LLC (Array), 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 Circular Design Construction, LLC (Array)
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
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Landowner: Circular Design ORANGE COUNTY Roads
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Date: 10/21/2022 Open Space-Other
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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
CIRCULAR DESIGN CONSTRUCTION LLC
This [Grant of] Conservation Easement(hereinafter "Conservation Easement") is made
the _day of , 20_by and between CIRCULAR DESIGN CONSTRUCTION LLC,
having an address at 112 EMERYWOOD PL, CHAPEL HILL,NC 27516, (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 32 acres of land, located in Bingham Township,
Orange County,North Carolina and identified as that portion of Tract that is depicted as "Open
Space" on the plat of property titled"Survey of Array,"prepared by R.S. Jones &Associates,
Inc., which plat is recorded at Plat Book 125, Page 129, Orange County Registry(hereafter
referred to as "the recorded plat") (part of PIN 9840524927). The Property includes buildings
and other improvements, but not areas identified as Array Drive, a private right of way, or a gas
line easement held by Cardinal Extension Company, LLC, 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.
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C. To the extent practicable, the Grantor and Grantee wish to maintain the Easement
Area as a combination of woodland and open space suitable as habitat for the native flora and
fauna of the North Carolina Piedmont, and to protect the water quality of Collins Creek and other
perennial streams that flow through this land and eventually to the Haw River and Jordan Lake.
The grant of this Conservation Easement will further said wish, and will serve the following
"Conservation Purposes," as such that 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; Collins Creek 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 also contains an intact segment of Collins Creek,which the State of
North Carolina identifies on its list of"303(d) impaired streams." It is a specific objective of
Orange County in its 2030 Comprehensive Plan, to reduce the number of 303(d) impaired
streams by minimizing impacts 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, helping to protect the water quality associated with Collins Creek.
The Easement Area also contributes to the open space and rural character of this section
of Bingham 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 Collins
Creek water quality, as well as the open space and rural character of Bingham 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
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(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 [[e.g.j open space and rural character of Bingham Township 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
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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 low impact recreation and related facilities, community gardens,
and open air meeting or gathering spaces; 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 Property after any act of God or other
event over which Grantors had no control. Grantors understand that nothing in this Conservation
Page 4 of 17
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Easement relieves them of any obligation or restriction on the use of the Property imposed by
law.
2. PROPERTY USES. Any activity on, or use of, the Property inconsistent with
the purposes of this Conservation Easement is prohibited. The Property 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 Property. 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 Property. Additional retained rights of Grantors are
set forth in Paragraph 3 below.
2.1 Subdivision and Residential Use. All of the Grantors' Property shall be
kept under the same fee simple ownership. No portion of the Grantors' Property shall be sold,
conveyed, mortgaged, partitioned or subdivided so as to create the possibility of fee simple
ownership of any portion that would be separate or different from the fee simple ownership of
the remainder of the Grantor's Property.
2.2 Construction. Grantors shall have the right to construct and maintain a
community garden and gathering area within the Property. Grantors may construct pathways to
serve the community garden and gathering area. Any new construction shall be sited so as to
cause minimal disturbance to the conservation values of the Property. The location and design of
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 Property.
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
Property's improvements),utility tower, conduit or line on or above the Property. Outdoor
lighting shall be placed and shielded so as to minimize the impact on surrounding areas.
2.3 Existing_ I_mprovements. 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.
2.4 Agricultural Use. Grantors shall have the right to i)to breed and raise
bees, fish,poultry and other fowl in existing facilities on the Property, and ii)to plant, raise and
harvest crops in existing fields and/or develop a community garden within existing open areas on
the Property. Grantors may not establish or maintain any commercial feeder operation on the
Property, 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.
Page 5 of 17
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2.5 Timber Harvest. Trees may be removed, cut and otherwise managed to
control insects and disease, to prevent personal injury and property damage, for firewood and
other uses, including construction of permitted improvements and fences on the Grantors'
Property. No additional timber harvesting shall be allowed.
2.6 Grazing. Grantors shall not graze or pasture domestic animals on any
portion of the Property 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.
2.7 Home Business. Any business that is conducted by and in the home of a
person residing on the Property is allowed.
2.8 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 may also construct and maintain fences, foot trails, foot bridges, and or non-
motorized vehicle trails incidental to such purposes. Grantors reserve the right to promulgate
and enforce reasonable rules and regulations for all activities incident to recreational use of the
Property, including but not limited to the right to prohibit any recreational use that would permit
destruction of other significant conservation value of the Property.
2.9 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.
2.10 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 Property. 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.
Page 6 of 17
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2.11 Water Quality and Drainage Patterns. There shall be no pollution of
surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water
bodies, nor shall activities be conducted on the Property 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
Property. 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 on the Property. Diking, draining, filling or removal
of wetlands is prohibited.
2.12 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.
2.13 Signage. No signs or billboards or other advertising displays are allowed
on the Property except as follows: signs authorized by Orange County zoning regulations whose
placement, number and design do not significantly diminish the scenic character of the Property
may be displayed to identify trails and the conservation values of the Property, 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 Property and proscribe rules and
regulations for recreational use of the protected Property, to advertise the Property for sale or
rent, and to post the Property against trespassers.
2.14 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 Property, and
except as needed around improvements on the Property and in existing agricultural fields and
gardens.
2.15 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 Property(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 Property or on adjacent property owned by Grantors, that could cause erosion or siltation
on the Property.
2.16 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.
Page 7 of 17
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2.17 Commercial Development. Any commercial or industrial use of or
activity within the Property is prohibited. This restriction on use shall not be construed to
prohibit use of the Property for recreational, educational and scientific purposes, as long as such
activities are otherwise consistent with this Conservation Easement.
2.18 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 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 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:
(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 o£ (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
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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 Property. 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 Property
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.
(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
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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.
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.
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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
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.
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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:
Circular Design Construction LLC Orange County Department of Environment,
Agriculture, Parks and Recreation
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.
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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, except as expressly provided herein.
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.
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.
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TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee
forever.
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IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTORS:
[Name]
[Name]
Accepted:
GRANTEE:
ORANGE COUNTY,NORTH CAROLINA
By:
[ ], Chair
Orange County Board of Commissioners
ATTEST:
Laura Jensen, Clerk to the
Board of Commissioners
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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:
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EXHIBIT A. GIS MAP AND SKETCH OF PROPERTY
EXHIBIT B. SUMMARY OF THE BASELINE DOCUMENTATION REPORT
EXHIBIT C. PERMITTED EXCEPTIONS
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