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HomeMy WebLinkAboutAgenda - 09-16-2003-5bORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 16, 2003 Action Agenda Item No. SUBJECT• Resolution Accepting Conservation Easement Conveyance -Rebecca Brown DEPARTMENT: Environment and Resource Conservation PUBLIC HEARING: (Y/N) No ATTACHMENT A. Draft Resolution B. Location Map C Property Map INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2591 D. Draft Conservation Easement TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To consider a resolution approving a conservation easement agreement with Rebecca Brown for land along New Hope Creek in Chapel Hill Township. BACKGROUND: The Lands Legacy Program, adopted in April 2000, seeks to protect the County's most important natural and cultural resources. Through this program, the County uses a variety of voluntary means to protect lands, including fee-simple acquisition, acceptance of land donations, and purchase or donation of conservation easements. The types of land protected include parkland, natural areas and wildlife habitat, riparian buffers, prime farmland and historic and cultural sites. Since inception, Lands Legacy has protected 860 acres of resource lands in Orange County. ERCD is working with Triangle Land Conservancy (TLC) to acquire riparian lands and conservation easements for an open space corridor along New Hope Creek from the site of the former Hollow Rock Store (Erwin Road) to the Durham County line - a distance of nearly one mile along the creek. This project would link Duke Forest lands in Orange County to New Hope Creek open space in Durham County. TLC has negotiated the purchase of a conservation easement from the Brown family, owners of a 1.8-acre lot, and the site of the former Hollow Rock Store. TLC will purchase the easement fora 1.2-acre portion of the lot with a grant from the NC Clean Water Management Trust Fund. TLC will then convey the easement to Orange County for oversight of a future public walking trail along New Hope Creek. The proposed trail will help implement the New Hope Creek Master Plan, adopted by Orange County, Durham County, City of Durham and Town of Chapel Hill in 1989. The Brown property has many conservation values which will receive permanent protection via the conservation easement. Those values include significant wildlife habitat associated with the New Hope Creek corridor and recognized by the Orange County Comprehensive Plan. The property also includes a segment of a riparian trail corridor, which receives heavy recreational use by citizens of both Orange and Durham counties. ERCD Staff has worked with the TLC and the Brown family to craft an easement that meets the family's needs and the County's interests. The easement would cover 1.2 acres located adjacent to New Hope Creek and Erwin Road. Future development rights would be relinquished through the easement, with the exception of the public trail and a few other minor improvements as denoted in the easement. FINANCIAL IMPACT: The Triangle Land Conservancy will purchase the conservation easement and then convey the easement to Orange County. Orange County (ERCD) will assume the task of monitoring the property on an annual basis and helping to enforce the development restrictions. Orange County may need to pay some transaction costs estimated to be less than $1,000, which would be paid from the Lands Legacy Fund. RECOMMENDATION: The Manager recommends that the Board adopt the resolution approving the acceptance of the conservation easement conveyance and authorize the Chair to sign the easement, subject to final review by staff and County Attorney. 3 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION FOR THE ACCEPTING A CONSERVATION EASEMENT TO PROTECT NEW HOPE CREEK CORRIDOR (REBECCA BROWN PROPERTY) WHEREAS, two 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 wildlife corridors and riparian buffers in water supply watersheds, and WHEREAS, Triangle Land Conservancy (TLC), a private non-profit land trust with like conservation goals, is working with Orange County to acquire riparian lands and conservation easements for an open space corridor along New Hope Creek from Erwin Road to the Durham County line, and WHEREAS, protecting these riparian lands will preserve an identified wildlife corridor and provide an opportunity for developing a public trail linking sections of New Hope Creek in Duke Forest (Korstian Division) with public lands in Durham County, and WHEREAS, completing said trail corridor will help implement the New Hope Creek Corridor Master Plan, adopted by Orange County, Durham County, the City of Durham and the Town of Chapel Hill in 1989, and WHEREAS, TLC has agreed with Rebecca Brown on the purchase of a conservation easement to protect approximately 1.2 acres of a property that Ms. Brown owns adjacent to New Hope Creek at Erwin Road, and WHEREAS, TLC and the County have agreed that TLC will convey the conservation easement to Orange County, and WHEREAS, Orange County and TLC and Rebecca Brown have generally agreed on the language of said conservation easement to be purchased by TLC and conveyed to the County, 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; 4 NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners agrees to the accept the conveyance of a conservation easement from Triangle Land Conservancy on approximately 1.2 acres of land owned by Rebecca Brown, to be executed at a formal closing on the property. This, the 16r'' day of September, 2003 Margaret W. Brown, Chair Orange County Board of Commissioners ATTEST Donna Baker, Clerk to the Board ,_8s ~~ )0 ~_ ~~ ~~~ 2 `~ bcm n ~ ` o~d C 10 ¢a ' ~~ ~ ~d a o .~c ~JCPh.9 ScN e y a ~` a ~ e $ s .r ~ ~e~ ~ ~ bit Slnai }3d CHAP 'vthur Minns Rd ~ ~ _-' sad Adh~4grLV ~R oTE oT O w6, z c.sy e ~„e ~ 00 wrn~r~id ~, °R ~ ~~~ Q~ l Rd Eubanks R~ ~ O ~ Weavar Dairv Rd n ~c ~ ~ ~ome5toed Rq ~c3 a Dai and ftd a ~£ ~ ry ~~ tai n. M N~ ~e ry0 Sd ~Rd z a ~~~N Qa T+ cnn"'aii~ Ra L 0 ~',qT/ o N /tigP I v U y F Z ~ ~ p D 0 Brown Property yK Proposed Conservation Easement (1.2 acres) /"' Proposed Trail Corridor Streams [~ Parcel Boundary ;' S' Contours Proposed Conservation Easement Rebecca Brown Property 4~ PIN 9891-91-6210 '~ ~•••~'' TM B L 7.16..22 Courrty of Orange Environment & Resource x Conservation Department 40 0 40 80 Feet 1 M Janes 9Ja/03 Brown Conservation Easement Draft 8/28/03 7 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 , 2003 by and between REBECCA HALL BROWN, having an address at 708 Mary E. Cook Road, Hillsborough, NC 27278 (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 are the sole owners in fee simple of certain Property, more particularly described in Exhibit A, attached hereto and incorporated herein (the "Grantor's Property") which consists of approximately _ acres of land, located in Chapel Hill Township, Orange County, North Carolina, and identified as on the plat of property dated titled " _ ," prepared by which plat is recorded at Plat Book _ Page _, Orange County Registry. These lands, comprising 1.2 acres, are hereinafter collectively referred to either "the Grantor's Property" or the "Easement Area." To the extent practicable, the Grantor wishes to maintain the Grantor's Property 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 quality of water 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. C. The Easement Area is a significant natural area that qualifies in its present condition as a "...relatively natural habitat offish, 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 176-180 of the Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina, written by Dawson Sather and Stephen Hall and conducted for the Triangle Land Conservancy in coordination with the North Carolina Brown Conservation Easement Draft 8/28/03 8 Natural Heritage Program in December 1988. The native plants and animals include Catawba rhododendron, galax, beech, white oak, red oak, mountain holly, red-shouldered hawk, green- backed heron, green snake, pickerel frog and the dwarf waterdog. The Easement Area provides land area for outdoor recreation by, or the education of, the general public, specifically the trail corridor along New Hope Creek, which receives heavy recreational use by the citizens of both Orange and Durham counties. The Easement Area includes land within the New Hope Creek riparian corridor, which has been recognized by Orange County as having significance as a wildlife corridor and is identified on Pages 2.2-41 of the Land Use Element of the Orange County Comprehensive Plan as the Korstian Division/Duke Forest section of the New Hope Creek Refuge System. It is a primary purpose of this Easement to protect the undeveloped nature of the Grantor' Property and, in doing so, helping to protect the natural area and wildlife habitat associated with this area. 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: (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 September 2, 1981 as amended) with its goal of conserving and protecting Orange County's significant "Resource Protection Areas" from adverse development impacts, including county Natural Areas, wildlife corridors and lands placed by individual property owners into conservation easements; and (3) the New Hope Corridor Open Space Master Plan, which was adopted by Orange County in the spring of 1989, and which recognizes the need to preserve recommended wildlife corridors along the upstream areas of New Hope Creek; and (4) 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 Grantor's Property; and (5) 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 Draft 8/28/03 9 Brown Conservation Easement (6) the special North Carolina Conservation Tax Credit Program, which encourages contributions of land that provides habitat for fish and wildlife and other similar land conservation purposes set forth in N.C.G.S. 105-130.34 and 105-151.].2 et se .; and (7) 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. The natural resources and natural habitat of the Grantor's Property, and its contribution to the protection of the open space and rural character in the Rural Buffer of northern Chapel Hill Township 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 , 2003 (hereafter "the Baseline Report") prepared by Grantee with the cooperation of the Grantor, and acknowledged by both parties to be an 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 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 Brown Conservation Easement Draft8/28/03 10 condition; to protect native plants and animals, or plant communities on the Easement Area, while allowing traditional uses on the Easement Area that are compatible with and not destructive of the conservation values of the Easement Area, including use of pedestrian trails as provided in Paragraphs 3(c) and 4(c); and to prevent any use of the Easement Area that will 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 bylaw. 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, 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. Grantor and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantor are set forth in Paragraph 3 below. 2.1 Subdivision. The Property may not be divided, subdivided or partitioned, nor conveyed except in its current configuration as an entity. 2.2 Construction. Grantor has the right to construct and maintain two, and no more than two, outbuildings for horticultural, educational, or recreational purposes so long as the neither outbuilding is a) located less than 100 feet from New Hope Creek, b) more than 20 square feet in floor area, and c) 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 buildings and land use. Grantee has the right to construct and maintain a pedestrian trail intended for public use within the Easement Area. The trail shall be unpaved and constructed within a 50- foot trail corridor located parallel to New Hope Creek and identified in Exhibit B. The trail shall be no more than 10 feet wide and shall be sited so as to cause minimal disturbance to the conservation values of the Easement Area. Grantor may construct a pedestrian trail for private use leading from the portion of the Grantor's Property located outside of the Easement Area to the aforementioned public trail located within the Easement Area and parallel to New Hope Creek. The trail shall be unpaved and no more than 6 feet wide and shall be sited so as to cause minimal disturbance to the conservation values of the Easement Area. Brown Conservation Easement Draft 8/28/03 11 No other structures may be placed or constructed on the Easement Area except as provided in Paragraphs 2.3 and 2.12. Furthermore, there shall be no constructing or placing of any airplane landing strip, billboard or other advertising display, 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. Outdoor lighting shall be placed and shielded so as to minimize the impact on surrounding areas. 2.3 Existing Improvements. Grantor 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. Grantor and Grantee acknowledge that a station constructed for the remediation of a former underground storage tank associated with the former Hollow Rock Store exists at the time of the execution of this Conservation Easement and is identified in Exhibit B. 2.4 Agricultural Use. No agricultural use shall be allowed on the Easement Area. 2.5 Timber Harvest. Trees maybe 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 Grantor's Property. Any cutting of trees that is more than incidental to the Easement Area shall be specifically approved by the Grantee or shall be in accordance with a Forest Management Plan which shall be in writing and which has been approved by both Grantor and Grantee. 2.6 Grazin .Grantor shall not graze or pasture domestic animals on any portion of the Easement Area. 2.7 Home Business. No commercial or industrial enterprise shall be allowed on the Easement Area. 2.8 Recreational Use. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantor shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Easement Area, including, but not limited to, hiking, picnicking, lawful hunting and fishing, and other recreational uses 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. Recreational motorized vehicle use is prohibited from any land area of the Easement Area. Pursuit of wildlife Brown Conservation Easement Draft 8!28/03 12 by any form of motorized transportation 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 could significantly impair the conservation values of the Easement Area. 2.9 Excavation. There shall be no excavation, filling, 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, c) the combating of erosion or flooding, and d) to enhance the plant and animal ecosystems native to the locality. 2.10 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. 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 of non-native animals, or disturbance or change in the natural habitat in any manner. 2.11 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural watercourses, 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. There shall be no alteration or depletion of surface water, natural watercourses, subsurface water or any other water bodies on the Easement Area. Diking, draining, filling or removal of wetlands is prohibited. 2.12 S~nage. 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 Area and the names of persons living on the Easement Area, 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. 2.13 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 Brown Conservation Easement Draft 8/28/03 13 needed around improvements on the Easement Area and in existing agricultural fields as identified in Exhibit B. 2.14 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. 2.15 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. 2.16 Commercial Development. 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, artistic, and scientific purposes, as long as such activities are otherwise consistent with this Conservation Easement. 2.17 Development Ri ts. 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 GRANTOR. 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. At least sixty (60) days 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. (c) Right to Construct and Maintain Pedestrian Trail. The right to construct and maintain unpaved and un-graveled pedestrian trails within the Easement Area as described in Paragraph 2.2. The proposed trails would be expected to connect Brown Conservation Easement Draft 8/28/03 14 with the similar trail proposed on the property located adjacent to and south of the Easement Area along the east side of New Hope Creek. An approximate alignment of the New Hope Creek_trail is identified in Exhibit B. The Grantee shall have reasonable opportunity to review the trail plan prior to construction of the trail and to suggest modifications to better protect the environment. 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 Easement Area and enforce the terms of this Conservation Easement. (b) Right of Entrv. 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, her 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) Right to Construct and Maintain Pedestrian Trail. Grantee, its employees, representatives, and agents, have the right to construct and maintain an unpaved pedestrian trail within the Easement Area as described in Paragraph 2.2. The proposed trail would be expected to connect with the similar trail proposed on the property located adjacent to and south of the Easement Area along the east side New Hope Creek. An approximate alignment of the trail is identified in Exhibit B_. The Grantor shall have a reasonable opportunity to review the trail plan prior to construction of the trail and suggest modifications to better protect the environment and to better protect the privacy of the Grantor. (d) 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. 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. (e) Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Easement Area. Grantee will consult with Grantor prior to implementing control activities. Brown Conservation Easement Draft 8/28/03 15 Grantee shall, to the extent permitted bylaw 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, except to the extent the liability, damage, loss, cost or expense arises from the negligence or willful misconduct of Grantor. 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 Grantor any 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 Conservation Easement, except for the proposed future pedestrian trail located along New Hope Creek as set forth in Paragraphs 2.2, 3(c) and 4(c) above. 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 120 days to correct it (or begin good faith efforts to correct in the event the violation is something which cannot be reasonably corrected in 120 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. Brown Conservation Easement Draft 8/28/03 16 (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 is at the time of transfer, is a "qualified organization" under Section 170(h) of the U.S. Internal Revenue Code, and 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 shall 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. 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 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 seg., 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 of 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 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 Brown Conservation Easement Draft 8/28103 17 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(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 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 covenants and represents that she is the sole owner and is seized of the Easement Area in fee simple and has good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages not subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, subject to any easements or encumbrances of record. 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 Grantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantor: Rebecca Hall Brown 708 Mary E Cook Road Hillsborough, NC 27278 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, Draft.. 8/28/03 18 Brown Conservation Easement 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. Grantee agrees to notify the Grantor of any such re-recording, provided, however, Grantee's failure to so notify Grantor shall not affect the re-recording. 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) Legal Description. Exhibit A is a legal description of the Easement Area. (b) Present Condition Map. Exhibit B is a GIS map and sketch showing the configuration of the property owned by the Grantor and the Easement Area that is the subject of this Conservation Easement. 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. Brown Conservation Easement Draft 8/28/03 19 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: Accepted: By: ATTEST: Rebecca Hall Brown GRANTEE: ORANGE COUNTY, NORTH CAROLINA Margaret Brown, Chair Orange County Board of Commissioners Donna S. Baker, Clerk to the Board of Commissioners Brown Conservation Easement Acknowledgments STATE OF NORTH CAROLINA COUNTY OF ORANGE Drclft 8/28103 20 I, , a Notary Public in and for said County and State do hereby certify that and _ 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 200 . Notary Public My commission expires: (Notary Seal) NORTH CAROLINA COUNTY OF ORANGE I, a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal, this the day of 200 Notary Public My commission expires: Brown Conservation Easement Draft 8!28!03 21 EXHIBIT A. LEGAL DESCRIPTION OF EASEMENT AREA EXHIBIT B. PRESENT CONDITION MAP OF THE EASEMENT AREA