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HomeMy WebLinkAboutAgenda - 09-02-2003-5bORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 2, 2003 Action AgenS a 6 Item No. SUBJECT: Resolution -Purchase of Steep Bottom Branch Conservation Easement DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENT(S): 1) Draft Resolution 2) Draft Conservation Easement 3) Map of Site INFORMATION CONTACT: David StanciN, 245-2590 Rich Shaw, 245-2591 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To consider a resolution for the purchase of a conservation easement on 64 acres of an identified Natural Heritage site owned by Triangle Land Conservancy (TLC), as part of the County's partnership with TLC on this project. BACKGROUND: In the spring of 2001, Triangle Land Conservancy approached Orange County about a partnership to purchase and protect a 35-acre tract owned by Judge Stanley and Carolyn Peele. The property adjoins a 29-acre tract already owned by TLC along Steep Bottom Branch, a principal tributary of New Hope Creek. In closed session, the Board agreed to participate in the land acquisition and authorized staff to work with its counterparts from TLC to arrange for the purchase of the property. For simplicity and consistency of ownership, TLC agreed to acquire the property and convey a conservation easement to the County on the 35-acre Peele tract - as well as their own 29-acre site. These properties are located near Davis Road west of Old 86. The two parcels contain substantial portions of a Natural Heritage site identified in the 1988 Inventory of Natural Areas and Wildlife Habitats of Orange County. The properties contain the spring-fed source of Steep Bottom Branch as well as prime forest areas that contain a rich diversity of wildlife habitat. As agreed by the two parties, TLC purchased the 35-acre Peele property (at a bargain sale price of $4,805/acre) in late 2001 through four installment payments. Orange County and TLC agreed to share the purchase cost, with the County's share of the cost (ostensibly, the final two installments) totaling $89,175. Since that time, an opportunity has arisen to lower 2 the cost to $83,700 by making the final two installments prior to December 31, 2003. This expedited transaction would avoid $5,475 in interest that would accrue under the previous arrangement, and allow TLC to receive grant funding reimbursement more quickly. By purchasing a conservation easement on all 64 acres at this revised price, the County's cost for the easement will be $1,308/acre. The conservation easement (a draft is attached) would be executed subsequent to the final installment payment for the property (payment to occur by December 31, 2003, based on the expedited scenario). At that time, staff would bring back the final conservation easement for official approval and subsequent recordation with the deed. Because of the sensitive Natural Heritage site within the property and the lack of public road access (there is access via private roads), staff and TLC propose to provide periodic guided walking tours of the property. FINANCIAL IMPACT: TLC will convey a conservation easement to the County on both of the properties, totaling 64 acres. Since TLC is purchasing the property through installment payments, the easement conveyance would not occur until the last payment occurs. As noted above, staff proposes expediting the payment of the County's portion prior to December 31, 2003, in order to avoid $5,475 in interest that was included in the original $89,175 County portion. The County's portion of the purchase (the price for the conservation easement purchase) under the revised/expedited scenario is $83,700 (or $1,308/acre). Funding exists for this purchase in the Lands Legacy Opportunities (Pay-as-you-Go) Fund. A capital project ordinance will be presented at a subsequent meeting for this purchase. Once the resolution is approved, and the County's payment made, the easement will be finalized and brought for Board approval. The attached resolution stipulates that the funds transfer is contingent on the receipt of the conservation easement to be executed by the County and TLC after final installment payment. RECOMMENDATION(S): The Manager recommends that the Board approve the resolution and authorize the County Attorney and staff to purchase the conservation easement on 64 acres owned by Triangle Land Conservancy at a cost of $83,700, with the expedited transfer of funds prior to December 31, 2003, as outlined above. The final easement would be submitted for official Board approval in early 2004. 3 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION FOR THE PURCHASE OF A CONSERVATION EASEMENT TO PROTECT STEEP BOTTOM BRANCH NATURAL HERITAGE SITE WHEREAS, one of the primary goals of the Orange County Lands Legacy program, established by the Board of County Commissioners in April 2000, is the protection of identified natural areas that are part of the N.C. Natural Heritage Program, and WHEREAS, Triangle Land Conservancy (TLC), a private, non-profit land trust with like conservation goals, acquired 29 acres of the Steep Bottom Branch Natural Heritage site in 1997 to help protect this site, and WHEREAS, in 2001, Judge and Mrs. Stanley Peele began discussions with Triangle Land Conservancy and subsequently Orange County regarding preserving an adjoining 35-acre tract in their ownership that also contained a portion of the Natural Heritage site, and WHEREAS, in 2002, TLC and the County agreed to jointly purchase the Peele property at a bargain sale price, and WHEREAS, TLC and the County agreed to allow TLC to purchase the Peele property in late 2002 with a subsequent conservation easement granted to Orange County to reflect the joint and strengthened protection for this site and the County's participation in the purchase, and WHEREAS, Orange County and TLC have generally agreed on the language of said conservation easement to be granted to the County, which will be executed following the final installment payment for the Peele property, and WHEREAS, the joint acquisition of this property is exemplary of the County's ongoing collaboration and partnership with Triangle Land Conservancy and other conservation organizations. NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners agree to the future purchase of a conservation easement from Triangle Land Conservancy on 64 acres owned by TLC and known as 4 Steep Bottom Branch Preserve, to be completed and executed after the final installment payments of the property. BE IT FURTHER RESOLVED that, recognizing the need to fulfill its financial obligations for the purchase of said easement, the County agrees to release funds in the amount of approximately $84,000 designated for this project, contingent on the receipt of said easement from Triangle Land Conservancy subsequent to the final installment payments. This, the 2nd day of September, 2003 Margaret W. Brown, (:hair Orange County Board of Commissioners ATTEST Donna Baker, Clerk to the Board Steep Bottom Branch Conservation Easement 7-11-03 draft Prepared by and return to: Geoffrey E. Gledhill; Coleman, Gledhill & Hargrave; P.O. Drawer 1529; Hillsborough, NC 27278 NORTH CAROLINA COUNTY OF ORANGE CONSERVATION EASEMENT This Grant of Conservation Easement (hereinafter "Conservation Easement") is made the day of , 2004 by the Triangle Land Conservancy, having an address at 1101 Haynes Street, Suite 205, Raleigh, NC 27604 (hereinafter "Grantor") 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 Grantor is the sole owners in fee simple of those two contiguous tracts of real property located in Chapel Hill Township, Orange County, North Carolina, and described as follows: Being all of that 35.38-acre tract on the plat of property titled "Property of Roland Dodson," prepared by Robert A. Jones, R.L.S. L-639, which plat is recorded at Plat Book 31, Page 111, Orange County Registry (PIN: 9862-34-5199, TMBL 7.10..2); and 2. Being all of that 29.33-acre tract on the plat of property titled "prepared by which plat is recorded at Plat Book _ Page _, Orange County Registry (PIN: 9862-54-2264, TMBL 7.10..13). These two tracts together, comprising 64.71 acres, are hereinafter collectively referred to either "the Grantor's Property" or the "Easement Area." 3. To the extent practicable, the Grantor wishes to maintain the Easement Area as a combination of woodland and open space suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to protect the water quality of Steep Bottom Branch and other headwater streams running off from this land and into New Hope Creek. B. The Grantee is a body politic existing under Chapter 153A of the North Carolina General Statutes. Steep Bottom Branch Conservation Easement 7-11-03 draft 6 C. The Easement Area is a significant natural area that qualifies in its present condition as 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. Specifically, the Easement Area is habitat for a variety of native plants and animals described for this area on Pages 156-157 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina, written by Dawson Sather and Stephen Hall in December 1988 and conducted for the Triangle Land Conservancy in coordination with the North Carolina Natural Heritage Program. Steep Bottom Branch, for which this site is named, is one of the headwaters of New Hope Creek. According to the Natural Heritage Inventory, the ravine is one of the deepest in this part of Orange County and has an extensive north-facing slope that contains a good example of mixed mesic hardwood forest, dominated by beech, red oak, white oak and tulip poplar. The narrow bottomland along the branch is rich with more than 60 plant species, including walnut, bitternut hickory, and southern sugar maple. On the opposite side of the ravine, along the southern exposures, the forest changes to a dry oak-hickory forest. Following is an excerpt from the Natural Heritage Inventory: "Reasons for significance: The deep ravine present on this site contains a relatively undisturbed mixed mesic hardwood forest. Apart from its biological value, it is part of one of the county's oldest farms still occupied by descendants of the original settlers. This farm is the most scenic along Old NC 86, itself one of our most aesthetically pleasing secondary roads." The Easement Area also contributes to the open space and rural character of this northern section of Chapel Hill Township and the "Rural Buffer" so classified on the Orange County Zoning Ordinance and located between the towns of Hillsborough to t:he north and Chapel Hill and Carrboro to the south. It is a further purpose of the Easement to help to protect the rural character and open space of the Rural Buffer in northern Chapel Hill Township. The natural habitat of the Grantor's Property, and its contribution to the protection of the open space and rural character are collectively referred to as the "conservation values" of the Easement Area. D. The characteristics of the Easement Area, its current use and state of improvement, are described in a report entitled "Baseline Report on the Property," dated , 200_ (hereafter "the Baseline Report";) prepared by for the Grantor, of which a summary is attached as Exhibit A to this Conservation Easement. The Grantor worked with the Grantee to ensure that the report is a complete and accurate description of the Easement Area as of the date of this Conservation Easement. It will be used by the Grantor and Grantee to assure that any future changes in the use of the Easement Area will be consistent with the terms of this Conservation Easement. However, the Baseline Report is not Steep Bottom Branch Conservation Easement 7-11-03 draft 7 intended to preclude the use of other evidence to establish the present condition of the Easement Area if there is a question about its use. E. The Grantor and Grantee have the common purpose of conserving the above-described conservation values of the Easement Area in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C. Gen. Stat. § 121-34 et seq., and N.C. Gen. Stat. §§ 160A-266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, horticultural, farming, or forest uses," and which provide for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvements less any reduction in value caused by the agreement"; and the Grantor and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, the Grantor, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby gives, grants and conveys unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Easement over the Easement Area of the nature and character as follows: 1. PURPOSE. The purposes of this Conservation Easement are to ensure that the Easement Area will be retained forever predominantly in its natural, forested, and open space condition; to protect native plants and animals, or plant communities on the Easement Area, while allowing certain limited uses on the Easement Area that are compatible with and not destructive of the conservation values of the Easement Area, such as research and educational activities that will not impair or interfere with the conservation values or interests of the Easement Area. Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Easement Area that is inconsistent with the purposes of this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantor to take any action to restore the condition of the Easement Area after any act of God or other event over which Grantor had no control. Grantor understands that nothing in this Conservation Easement relieves them of any obligation or restriction on the use of the Easement Area imposed by law. 2. EASEMENT AREA USES. Any activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural and open condition and restricted from any development that would impair or interfere with the conservation values of the Easement Area. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that Steep Bottom Branch Conservation Easement 7-11-03 draft 8 the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantor are set forth in Paragraph 3 below. 2.1 Subdivision. All of the Easement Area shall be kept under the same fee simple ownership. No portion of the Easement Area shall be sold, conveyed, mortgaged, partitioned or subdivided so as to create the possibility of fee simple ownership of any portion that would be separate or different from the fee simple ownership of the remainder of the Easement Area. 2.2 Construction. Grantor shall have the right to'construct and maintain natural surface trails for pedestrian use only within the Easement Area.. [Such trails..'. ~faeilities far educational or research/scientirc purposes?L • The new construction shall be located in accordance with a map of the property provided as Exhibit B to this Conservation Easement.] No other structures maybe placed or constructed on the Easement Area. Furthermore, there shall be no constructing or placing of any outdoor lighting, utility pole, utility tower, conduit or line on or above the Easement Area other than those necessary to service the Easement Area's improvements and remaining compatible with the conservations values or interests of the Easement Area. 2.3 Existing Improvements. Grantor shall have the right to maintain, remodel, and repair existing structures, water wells, fences, 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. ,remains of former/existing structures on the property may be repaired or removed) 2.4 Agricultural Use. Agricultural uses on the Easement Area are prohibited. 2.5 Timber Harvest. Commercial timbering of trees within the Easement Area is prohibited. Trees maybe removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, and for construction of permitted improvements and fences on the Grantor's Property. Cutting, removal or harvesting of trees except as expressly allowed in this Section 2.5, including clearing land for cultivation, shall be specifically approved by the Grantee or shall be in accordance with a Forest Management Plan which shall be in writing and approved by both Grantor and Grantee and provided further that all timber roads shall be constructed of permeable materials and shall be no wider than ten (10) feet. 2.6 Grazing. Grantor shall not graze or pasture domestic animals on the Easement Area for any purposes. 2.7 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantor shall have the right to engage in and permit Steep Bottom Branch Conservation Easement 7-11-03 draft 9 others, whether or not for consideration, to engage in recreational uses of the Property, including, but not limited to, hiking, picnicking, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land. Pursuit of wildlife by any form is not allowed. Grantor reserves the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Easement Area, including but not limited to the right to prohibit any recreational use that would permit destruction of other significant conservation value of the Easement Area. 2.8 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 hiking trails permitted hereunder, and c) the combating of erosion or flooding. 2.9 Destruction of Plants. Grantor shall have the right to cut and remove diseased trees, shrubs, or other plants, to cut and remove invasive (usually non-native) trees, shrubs and other plants, and to cut firebreaks. Grantor shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. Except for use around improvements, there shall be no planting ofnon-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 ofnon-native animals, or disturbance or change in the natural habitat in any manner. 2.10 Water uality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Easement Area that would be detrimental to water purity or, except as specified herein, that could alter the natural water :level or flow in or over the Easement Area. Other than the construction of a well to serve allowed improvements, there shall be no alteration, depletion or extraction of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies on the Easement .Area. Diking, draining, filling or removal of wetlands is prohibited. 2.11 Signage. 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 maybe displayed to identify trails and the conservation values of the Easement Area, to identify the name and address of the Easement, to give directions, to advertise or regulate permitted uses on the Easement Area and prescribe rules and regulations for recreational use of the protected Easement Area, to advertise the Easement Area for sale or rent, and to post the Easement Area against trespassers. Steep Bottom Branch Conservation Easement 7-I1-03 draft 10 2.12 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as required to control invasive species detrimental to the conservation values of the Easement Area, and except as needed around improvements on the Easement Area. 2.13 No Dumping. There shall be no storage or dumping of trash, garbage, abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous substance, or toxic waste on the Easement Area. There shall be no changing of the topography through. the placing of soil or other substance or material such as land :Fill or dredging spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2.14 Predator Control. Grantor shall have the right to control, destroy, or trap predatory and problem animals that pose a material threat to livestock and/or humans by means and methods approved by the Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques. 2.15 Commercial Development. Any commercial or industrial use of or activity within the Easement Area is prohibited. This restriction on use shall not be construed to prohibit use of the Easement Area for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis. 2.16 Development Rights. With the exception of the right to construct and use buildings expressly authorized elsewhere in this Conservation Easement, Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Easement Area, as it now or hereafter maybe bounded or described, or to any other property. 3. ADDITIONAL RIGHTS RETAINED BY GRANTORS. Grantor retains the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Easement Area not prohibited by this Conservation Easement. Prior to making any change in use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is subject to the terms of this Conservation Easement. 4. GRANTEE'S RIGHTS. To accomplish the purpose of this Conservation Easement, the following rights are granted to Grantee by this Conservation Easement: Steep Bottom Branch Conservation Easement 7-11-03 draft 11 (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the terms of this Conservation Easement. (b) Ri t of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after prior written notice to Grantor, to enter the protected Easement Area at least once yearly for the purposes of: (a) inspecting the protected Easement Area to determine whether the Grantor, their representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the Easement Area. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or others shall be reported to Grantor. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantor or others shall be reported to Grantee. (d) Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Easement Area. Grantee will consult with Grantors prior to implementing control activities. Grantee shall, to the extent permitted by law and to the extent of coverage available from policies of insurance maintained by Grantee from time to time, indemnify and :hold Grantor harmless from any liability, damage, loss, cost or expense, including reasonable attorney fees, for personal injury or property damage (including damage to the Easement Area) to Grantor or any third party, resulting in any manner from Grantee's exercise of any of its rights hereunder. 5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantor, or in any way to affect any existing obligation of the Grantor as owner of the Easement Area. Among other things, this shall apply to: (a) Taxes -The Grantor shall be solely responsible for payment of all taxes and assessments levied against the Easement Area. (b) Upkeep and Maintenance -The Grantee shall have no obligation for the upkeep or maintenance of the Easement Area. The granting of this Conservation Easement shall not in and of itself be construed to create or impose upon the Grantors any Steep Bottom Branch Conservation Easement 7-11-03 draft 12 obligation for the upkeep or maintenance of the Easement Area 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 Consen~ation Easement. However, the public has the right to view the Easement Areafrom adjacent publicly accessible areas such as public roads and waterways. [occasional tours of the property for environmental education?J 7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. (a) With advance written notice the Grantee may enter the Easement Area for the purpose of inspecting for violations. If the Grantee finds a violation, it may, in its discretion, take appropriate legal action. Except when an ongoing or imminent violation could substantially diminish or impair the conservation values of the Easement Area, the Grantee shall give the Grantor written notice of the violation and sixty (60) days to correct it (or begin good faith efforts to correct in the event the violation is something which cannot be reasonably corrected in sixty (60) days) before filing any legal actions. Grantee has the right to enforce the terms of this Conservation Easement by civil action, including the remedy of injunction, mandatory and prohibitory. 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. (b) Grantee shall not bring any action against Grantor for any injury or change to the Easement Area caused by third parties, or resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Easement Area or harm to the Easement Area resulting from such action. 8. TRANSFER OF EASEMENT. The parties recognize and agree that the benefits of this easement are in gross and assignable. The Grantee shall have the right to transfer or assign this Conservation Easement to any qualified organization that, at the time of transfer, is a "qualified organization" under Section 170(h) of the U.S. Internal Revenue Code and provided the organization expressly agrees to assume the responsibility imposed on the Grantee by this Conservation Easement. If the Grantee ever ceases to exist or no longer qualifies under Sec. 170(h) or applicable state law, a court with jurisdiction is hereby authorized to transfer this easement to another qualified organization having similar purposes that agrees to assume the responsibility. 9. TRANSFER OF EASEMENT AREA. Grantor shall notify Grantee, in writing, at least thirty (30) days prior to any conveyance by Grantor of the Easement Area or any interest in the Easement Area, and the document of conveyance shall expressly refer to this Conservation Steep Bottom Branch Conservation Easement 7-11-03 draft 13 Easement and, by its terms, the conveyance shall be made subject to and subordinate to this Conservation Easement. 10. AMENDMENT OF EASEMENT. This easement maybe 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 Easement Area 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 Easement Area or of the entire Easement Area by public authority renders it impossible to fulfill any of these conservation purposes, the Conservation Easement maybe 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 Easement Area right, immediately vested in the Grantee. If the easement is terminated and the Easement Area is sold or taken for public use, then, as required by Sec. 1.170A-14(8)(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 Easement Area, 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. 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. 13. TITLE. The Grantor covenant and represent that they are the sole owners and are seized of the Easement Area in fee simple and have good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages not subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, subject to any easements or encumbrances of record. Steep Bottom Branch Conservation Easement 7-11-03 draft 14 14. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to (Jantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantor: Triangle Land Conservancy 1101 Haynes Street, Suite 205 Raleigh, NC 27604 To the Grantee: Orange County Environment and Resource Conservation Department Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 15. ENVIRONMENTAL CONDITION. The Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Easement Area. 16. SEVERABILITY. If any provision of this Conservation Easement is found to be invalid, the remaining provisions shall not be altered thereby. 17. PARTIES. Every provision of this Conservation Easement that applies to the Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. This Conservation Easement shall not be construed to benefit or to create any rights in any third parties, including but not limited to the general public. 18. 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. 19. MERGER. The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Easement Area. 20. SUBSEQUENT LIENS ON EASEMENT AREA. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor to use the Easement Area as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement. 21. EXHIBITS AND DOCUMENTATION. (a) Documentation Report. The parties acknowledge that the Baseline Report, a copy of which is on file at the offices of the Grantee, accurately establishes the uses, structures, Steep Bottom Branch Conservation Easement 7-11-03 draft 15 conservation values and condition of the protected Easement Area as of the date hereof. See summary attached as Exhibit A. (b) Future Construction. ExhibitB is a survey map showing the configuration of the property owned by the Grantor. The map also shows the approximate location of a future trails? Facilities? See 2.2 above] that may be constructed on the Easement Area. 22. 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. 23. 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. 24. 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. IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: By: Accepted: TRIANGLE LAND CONSERVANCY [Typed Name], President Board of Directors Triangle Land Conservancy GRANTEE: Steep Bottom Branch Conservation Easement ATTEST: 7-11-03 draft 16 ORANGE COUNTY, NORTH CAROLINA Margaret Brown, Chair Orange County Board of Commissioners By: Donna S. Baker, Clerk to the Board of Commissioners Steep Bottom Branch Conservation Easement 7-11-03 draft 17 Acknowledgments STATE OF NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public in and for said County and State do hereby certify that personally appeared before me this day and duly acknowledged the execution of the foregone Conservation Easement. WITNESS my hand and notarial seal, this Day of ,2004. (Seal) Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE (Notary Seal) I, a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal, this the day of , 2004. Notary Public My commission expires: Steep Bottom Branch Conservation Easement EXHIBIT A. BASELINE REPORT (SUMMARY) 7-I1-03 draft 18 EXHIBIT B. SURVEY SHOWING POTENTIAL FUTURE PERMISSIBLE DEVELOPMENT I ~i 0 Triangle Land Conservancy Natural Heritage Site Parcel Boundary Streams 5' Contours 1998 Orfhophotos Proposed Conservation Easement Steep Bottom Branch Preserve Triangle Land Conservancy 64.71 Acres 200 0 200 400 Feet ~o~a~ F~wronmM d Razam Cmsanalbn DpMmart M.brwa &12A1