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HomeMy WebLinkAboutAgenda - 12/11/2008 - 4jORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 11, 2008 Action Agenda ; Item No. k,f SUBJECT: Resolution of Approval -Conservation Easement for the Future Northeast District Park (former Kirby Property) DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENT 1) Resolution 2) Site Map 3) Draft Conservation Easement INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2590 PURPOSE: To consider a resolution authorizing Orange County to grant a conservation easement to the Triangle Land Conservancy for the future Northeast District Park (former Kirby property). BACKGROUND: On December 31, 2007 Orange County purchased a 143-acre property located south of Schley Road in Little River Township. The land was acquired from F.M. Kirby for a future County park and other potential public facilities and services. The County's contract to purchase the property required the County to be the grantee of a conservation easement for the Kirby property prohibiting, among other things, the location of a solid waste landfill or a solid waste transfer station on the property. The County also agreed to convey a conservation easement to the Triangle Land Conservancy (TLC) (or another qualified conservation organization) "upon terms and conditions substantially similar to the terms and conditions contained in the conservation easement conveyed by the Kirbys to the County." ERCD Staff and the County Attorney have worked with TLC to prepare an agreement that is acceptable to TLC and, although more protective of the property than the conservation easement from the Kirbys to the County, will allow known future County uses of the property. The conservation easement will prohibit the location of a solid waste landfill or a solid waste transfer station on the property and will restrict permitted development from encroaching on forested stream corridors. Future activities will be required to adhere to all applicable regulations intended to protect the water quality in streams located on the property. Future land uses will also be in accordance with a set of conservation guidelines that will be prepared for this property by the Orange Soil & Water Conservation District, also to protect the water quality areas and a related forested area. The conveyance of this conservation easement from the County to TLC will also extinguish the conservation easement the County received from the Kirbys. The agreement with the 2 Kirbys requires their agreement to the terms of the conservation easement from the County to TLC. That agreement is anticipated. Upon approval by the Board, a closing on the conservation easement is expected to occur on or before December 31, 2008. A copy of the draft conservation easement is attached. The property will continue to be managed through the Lands Legacy program until the County is ready to develop the site for future uses. TLC will monitor the property for conservation easement compliance. Staff has prepared a preliminary concept plan for the site that will be presented to the Board for approval at an upcoming meeting. Amore detailed master plan for the park will be developed as potential park construction approaches, using a collaborative process that includes community input (as has been the practice for previous park projects). There are no existing funds for park development at this time. The recommended 2009-2019 CIP includes $7.4 million in FY 2017-18 and FY 2018-19 for park construction. FINANCIAL IMPACT: TLC will pay most of the transaction costs for the conservation easement, including surveying, title work, and recording fees not paid by the County. The County's share of transaction costs will not exceed $1,000. Existing funds remaining from the property purchase are sufficient to cover those costs. RECOMMENDATIONS: The Manager recommends that the Board adopt the resolution approving the conveyance 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 December 31, 2008. 3 ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of a Conservation Easement between Orange County and Triangle Land Conservancy WHEREAS, In December 2007 Orange County purchased a 143-acre property located between Schley Road and Mincey Road in Little River Township; and WHEREAS, the property was acquired from F.M. Kirby for a future county district park and other potential public facilities, including a solid waste recycling and disposal center; and WHEREAS, Orange County's contract to purchase the property from F.M. Kirby required the County to be the grantee of a conservation easement that prohibits the location of a solid waste landfill or a solid waste transfer station on the property; and WHEREAS, Orange County also agreed to convey to the Triangle Land Conservancy a conservation easement "upon terms and conditions substantially similar to the terms and conditions contained in the conservation easement conveyed by F.M. Kirby to the County; and WHEREAS, Orange County and the Triangle Land Conservancy have negotiated the terms and conditions of a conservation easement that, although more protective of the property than the existing conservation easement, will allow all known future County uses of the property. NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) grant on behalf of Orange County the conservation easement to the Triangle Land Conservancy; 2) approve the execution of this conservation easement agreement with the Triangle Land Conservancy, 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 December 31, 2008; .and 4) authorize an ERCD representative to sign any and all closing documents upon consultation with the County Attorney. This the 11th day of December, 2008. Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board .~!'~ .~ ~~~ ~ _ ~,,~ ~''~ ~. . R .:,' E . ~ ~ v W E .y ~~ s '' }~' ~ .a. 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Y { ~~ fi M iY ~~~. ~' ~ ~s N ~~ , ~~ ~ EASTER _REST .-~~~.~ F LppE ~~ ENVE *~ . 1 1~~ ~ y" _,., streams pond ~ bu{{ers g~ foot water Qualm enVelapes Road ~, Connector "~ park boundaries ,,.~~ "•. <t1` ._ 4~.. ~. ~". ..~~ , ~~ ~ ~.,_,''~Y.~ ~y_ ON~L ppRK EAST REG1 NORTH Prange ~°unty 1 000 500 750 Feet 0 125 250 "~.t ~"- photograph Aer'a~ ZOQ3 y ~~C, PINS 9887-52-0801 9887-33-4585 Excise Tax: $0.00 STATE OF NORTH CAROLINA COUNTY OF ORANGE CONSERVATION EASEMENT AND GRANT OF DEVELOPMENT RIGHTS This Conservation Easement and Grant of Development Rights ("Conservation Easement") is made on this day of 2008, by and between ORANGE COUNTY, a body politic and corporate, a political subdivision of the State of North Carolina, having an address of P.O. Box 8181, Hillsborough, NC 27278 ("Grantor"), and TRIANGLE LAND CONSERVANCY, a North Carolina non-profit corporation having as its address 1101 Haynes Street, Suite 205, Raleigh, NC 27604 ("Grantee"), for the purpose of forever conserving the biological values, open space chazacter, historic, agricultural, and scenic qualities of the subject property as expressly provided herein. BACKGROUND The Grantor is the sole owner in fee simple of that certain tract of land containing acres more or less comprised of two pazcels, one containing acres more or less and having Orange County PIN 9887-52-0801, and one containing acres more or less and having Orange County PIN 9887-33- 4585 (together the "Property"), both as shown on the plat recorded in Plat Book _, Page _, Orange County Registry (the "Plat"). [Acreage will be based on the new plat that will be recorded immediately prior to this Easement) The Property is currently encumbered by a conservation easement recorded in Book 4433, Page 520, Orange County Registry (the "Existing Easement"). Grantor desires to encumber all of the Property with this Conservation Easement, which will replace the Existing Easement, all as hereinafter described. KCBCM: 252126.5 Ct/ The Property contains four distinct azeas, the "Western Field," the "Western Water Quality Envelope," the "Interior Core," and the "Eastern Forest Envelope," each of which is more particulazly shown on the Plat. These four azeas are collectively referred to herein as the "Areas." Grantor and Grantee have agreed that each of these azeas will be subject to certain specific restrictions under this Conservation Easement based on the unique features of each and their projected use. The Property has significant open space, forestry, and wildlife values. The Property contains a natural area that provides a "relatively natural habitat for fish, wildlife or plants or similaz ecosystem" as that phrase is used in Section 170(hx4xA)(ii) of the Internal Revenue Code. The Property contains complex natural communities including: (a) dry-oak hickory forest dominated by white oak, southern red oak, post oak, willow oak, red maple, sweetgum, flowering dogwood, sourwood, cedaz and loblolly pine; (b) perennially and intermittently-flowing streams that drain to the state significant Little River Aquatic Habitat as determined by the North Carolina Natural Heritage Program, and surrounded by Piedmont alluvial forest dominated by sycamore, sweetgum, black walnut, tulip poplar, American elm, hackberry, green ash, willow oak, red maple, and American holly; and (c) habitat for a variety of wildlife species, including blue heron, wild turkey, rabbits, deer, and amphibians and reptiles. The biological, natural, and other conservation characteristics of the Properly aze described and depicted in a report entitled Baseline Documentation for Northeast Park (the "Baseline Documentation Report"), on file with Grantee, and acknowledged by both Grantor and Grantee to be complete and accurate as of the date hereof. Both Grantor and Grantee have copies of the Baseline Documentation Report.. The Baseline Documentation Report will be used by Grantor and Grantee, as well as their respective successors and assigns, to assure that any future changes in the use of the Property will be consistent with the terms of this Conservation Easement. However, the Baseline Documentation Report 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 above reference to the Baseline Documentation Report shall not limit the terms contained in this Conservation Easement and it is expressly understood that this Conservation Easement, and the rights, obligations and privileges contained herein, shall run with the Property. Grantor owns the entire fee simple interest in the Property, including the entire mineral estate, and there are no easements, rights of way or other encumbrances except for: [title exceptions to be inserted after receipt of title commitmentJ. The primary purpose of this Conservation Easement is to protect in perpetuity the natural forest habitat for wildlife, water and air quality and the open space in the Western Water Quality Envelope and the Eastern Forest Envelope (sometimes collectively referred to as, the "Envelopes"). All of these are collectively the "Conservation Values." In keeping with the Conservation Values, neither Grantor, Grantee, nor their respective heirs, successors, or assigns, shall conduct or allow to be conducted any activity on the Property that is inconsistent in any way with the covenants or restrictions contained within this Conservation Easement. The conservation purposes of this Conservation Easement, notwithstanding anything to the contrary contained herein, are recognized by, and this Conservation Easement will serve, the following clearly delineated governmental conservation policies: KCBCM: 252126.5 2 The Clean Water Management Trust Fund, N.C.G.S. 113-145.1 et seq., which recognizes the importance of protecting riparian buffers in protecting and conserving clean surface water; and The Title XII of the Food Security Act of 1985, as amended (16 U.S.C. 3837), for the Wetlands Reserve Program; and The Uniform Conservation and Historic Preservation Agreements Act, N.C.G.S. 121-34 et seq., which provides 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 use;" and which provides for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvement less any reduction in value caused by the agreement;" and Article 17 of the North Carolina General Statutes NCGS 113A-240-241, entitled Conservation, Farmland and Open Space Protection and Coordination, otherwise known as the Million Acre Initiative, which states "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 The special use assessment of farm and forest lands set forth in N.C.G.S. 105- 277.2 et seq. and of historic properties set forth in N.C.G.S.105-278; and 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." Grantee is a "qualified conservation organization," as defined by the Internal Revenue Code, as evidenced by its IlZS determination letter dated July 12, 1983 and, as certified by a resolution of its Board of Directors, accepts the responsibility of enforcing the terms of this Conservation Easement and upholding its conservation purposes forever. NOW THEREFORE, as an absolute gift, but in consideration of the restrictions contained herein, and pursuant to N.C.G.S. 121-34 et seq., Grantor does hereby convey unto Grantee, its successors and assigns forever, this Conservation Easement on and over the Property, as more particularly described herein, in perpetuity, and consisting of the covenants hereinafter set forth: 1. Restrictions Applying to All Areas. The following restrictions shall encumber the Property in its entirety (and thereby all Areas): a. Prohibited Acts. Grantor promises that it will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the specific covenants set forth in this Conservation Easement. However, unless otherwise specified below, nothing in this Conservation Easement shall require Grantor to take any action to restore the condition of the Property after any act of nature or other event over which Grantor had no control. Grantor acknowledges KCBCM: 252126.5 3 8 and agrees that nothing in this Conservation Easement relieves it of any obligation or restriction on the use of the Property imposed by law. b. Subdivision. Subdivision of the Western Water Quality Envelope and the Eastern Forest Envelope is prohibited. The Interior Core and the Western Field may be subdivided provided that no subdivision or subdivisions result in the existence of more than four parcels in the aggregate. c. Trash and Landfills. Except as expressly permitted herein, the dumping or storage on the Property of soil, trash, refuse, debris, ashes, garbage, waste, abandoned vehicles or parts, appliances, machinery, hazardous substances or toxic or hazardous waste is prohibited. Operating or authorizing others to operate a solid waste landfill on the Property is prohibited. Operating or authorizing others to operate a solid waste transfer station on the Property is prohibited. Subject to the terms hereof, an Orange County community recycling and solid waste disposal convenience center may be located and operated within the Interior Core, along with the location and storage of recycling and solid waste within such center consistent with Grantor's community recycling and solid waste disposal convenience center operation policies; provided, however, that (i) the location and operation of such recycling and solid waste disposal convenience center is at all times in compliance with Orange Soil and Water Conservation District ("OSWCD") guidelines (as hereinafter defined) and (ii) any road or drive providing vehicle access to such center shall connect to Mincey Road only and shall not connect to Schley Road 2. Actions Restrictions and Allowances Specific to the Interior Core and the Western Field. a. Grantor will request OSWCD issue guidelines for the use of the Western Field and Interior Core within one year of the execution of this Conservation Easement (the "OSWCD Guidelines"). The OSWCD Guidelines shall establish guidelines, limitations and restrictions on Grantor's use of the Western Field and the Interior Core to ensure that uses of those Areas do not detrimentally affect or impact the Conservation Values in the Envelopes and the Water Quality Buffers (as hereinafter defined). The OSWCD Guidelines shall include, without limitation, guidelines, limitations and restrictions relating to the following: i. Sediment and soil erosion; ii. Water quality; iii. Animal waste management; iv. Stream bank stabilization and stream protection; v. Nutrient management; vi. Storm water controls; and vii. Riparian restoration. b. As soon as possible and at least six (6) months prior to the commencement of any specific intended use of the Western Field or Interior Core by Grantor (the "Specific Use"), Grantor shall present its plans for the Specific Use to OSWCD for review by OSWCD for consistency with the OSWCD Guidelines as is necessary to ensure that the Specific Use does not detrimentally affect or impact the Conservation Values in the Envelopes and the Water Quality Buffer. KCBCM: 252126.5 4 c. Grantor shall take any and all actions required or recommended by the OSWCD in connection with its ownership and use of the Western Field and the Interior Core. Grantor shall neither take nor allow any action in the Western Field or the Interior Core that violates the OSWCD Guidelines. 3. Allowances and Restrictions in the Water Quality Buffer, the Western Water Ouality Envelope and the Eastern Forest Envelope. a. Except as expressly permitted herein in this paragraph 3a, Grantor shall leave the eighty-five (85) foot Water Quality Buffer located in the Envelopes and shown on the Plat ("the Water Quality Buffer") in its natural, undisturbed state, and Grantor shall take no action, including, without limitation, extracting natural resources or depositing trash or other materials, within the Water Quality Buffer. Within six (6) months of the recording of this Conservation Easement, Grantor shall install or caused to be installed fencing to keep grazing animals out of the Water Quality Buffer. Grantor may construct new natural, unpaved trails, benches and informational and educational signs and kiosks within the Water Quality Buffer provided that they are reasonably conducted in a manner reasonably calculated to minimize impact to the Conservation Values of the Envelopes and minimize the adverse impacts to water quality. Grantor may manage the forested areas in the Envelopes for wildlife habitat in accordance with the Forest Management Standards set forth on Exhibit A attached hereto. b. Except as expressly provided herein, Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Envelopes, and the parties agree that such rights are terminated and extinguished, and may not be used on or transferred to any portion of the Envelopes, as they now or hereafter may be bounded or described, or to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Envelopes or any property. Provided, however, the Envelopes may be used for the purpose of calculating impervious surface for use by Grantor of the Western Field and the Interior Core. "Impervious surface" as used in this Conservation Easement shall have the same definition as contained in the Orange County Zoning Ordinance. c. The following activities are permitted within the Envelopes provided they are reasonably conducted in a manner reasonably calculated to minimize impact to the Conservation Values of the Envelopes and minimize the adverse impacts to water quality: i. Construction of new perimeter fences to mark property boundaries; ii. Repair and replacement of existing fences in the Envelopes; and iii. Maintenance, remodeling, reworking, and repair of existing dams, ponds, and utilities in the Envelopes, and in the event of their destruction, the reconstruction of any such existing improvements with another of similar size, function, capacity, location and material. d. The following restrictions shall apply to both the Western Water Quality Envelope and the Eastern Forest Envelope: Industrial and commercial uses are prohibited. KCBC1vL• 252126.5 5 l0 ii. Agricultural use (including, without limitation, the storage of any agricultural, organic debris and turf products and byproducts) is prohibited except that the grazing of cattle is permitted so long as such grazing is outside the Water Quality Buffer; iii. Timber harvesting, cutting of trees and silvicultural activities are prohibited unless they are permitted in and conducted in accordance with the Forest Management Standards set forth on Exhibit A attached hereto. iv. The use of any pesticides, herbicides, or chemical fertilizers (except for use in controlling invasive species) is prohibited. v. Grantor shall not use or permit the use of any motorized vehicles outside of permitted and designated roads and bridges is prohibited, except as may be reasonably necessary for maintenance of the forest community in accordance with the best management practices and protocols to prevent siltation and nutrification of streams and the Forestry Management Standards attached hereto as Exhibit A and incorporated herein by reference. vi. Grantor shall not introduce, or permit to be introduced, any non-native species of plants; vii. Grantor shall not mine or extract, or permit the mining or extraction, of any oil, natural gas, fuel or any mineral substance if such mining or extraction disturbs the surface of the land; viii. Grantor shall not construct any buildings, trails, structures or roads unless expressly permitted in paragraphs 3(c), 4and 5 hereof; ix. Grantor shall not take, or knowingly permit other to take, any action that would disturb the natural character therein, except as expressly permitted in paragraphs 3(c), 4and 5 hereof; and x. Grantor shall not perform, or knowingly allow others to perform, any act in the Envelopes that is inconsistent with the preservation of the Conservation Values. 4. Allowances Specific to Western Water Quality Envelope. The following allowances are specific to the Western Water Quality Envelope provided they are reasonably conducted in a manner reasonably calculated to minimize impact to the Conservation Values and minimize the adverse impacts to water quality: a. Grantor is permitted to conduct a stream restoration within the Water Quality Buffer, and such a stream restoration may generate mitigation credits pursuant to State law. b. Grantor is permitted to construct a paved or unpaved single-lane road and bridge culvert for the purposes of pedestrian and vehicular access to the Western Field. The road and bridge shall be located within the area shown on the Plat and designated as "Connector Road." The Connector Road shall traverse stream channel at a right angle. c. Grantor may construct and maintain pervious walking trails, benches, picnic tables and a picnic shelter. KCBCM: 252126.5 6 5. Allowances Specific to Eastern Forest Envelope. Grantor may construct and maintain pervious walking trails, educational signs and kiosks, pedestrian bridges, benches and picnic shelters in the Eastern Forest Envelope provided they are reasonably conducted in a manner reasonably calculated to minimize impact to the Conservation Values of the Envelope and minimize the adverse impacts to water quality. 6. Rights Retained by Grantor. Grantor retains the right to perform any act or undertake any use not specifically prohibited or limited by this Conservation Easement. These ownership rights include, but are not limited to, the right to exclude any member of the public from trespassing on the Property and the right to sell, give, mortgage, lease, license or otherwise transfer the Property or interest therein to anyone they choose and the right to quiet enjoyment of their Property. Nothing contained in this Conservation Easement shall give or grant to the public a right to enter upon or to use the Property or any portion thereof if no such right existed in the public immediately prior to the execution of this Conservation Easement. 7. Discretionary Consent. Grantee's consent for activities otherwise prohibited above, or for any activities requiring Grantee's consent above, may be given under the circumstances described in this paragraph. If, owing to unforeseen or changed circumstances, both Grantor and Grantee deem any of the activities prohibited above to be desirable, Grantee may, in its sole discretion, give permission for such activities, subject to the limitations herein. Such requests for permission, and permission for activities requiring Grantee's consent, shall be in writing and shall describe the proposed activity in sufficient detail to allow Grantee to judge the consistency of the proposed activity with the purpose of this Conservation Easement. Grantee may give its permission only if it determines, in its sole discretion, that such activities (1) do not violate the purpose of this Conservation Easement and (2) either enhance or do not impair any significant conservation interests associated with the Property. Notwithstanding the foregoing, except as provided in paragraph 13, Grantee and Grantor have no right or power to agree to any activities that would result in the termination of this Conservation Easement or to allow any additional structures or activities not in keeping with the purposes of this Conservation Easement. 8. Responsibilities of Grantor and Grantees Not Affected. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on Grantor, or in any way to affect any existing obligation of Grantor as owners of the property. Among other things, this shall apply to: a. Taxes. Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property, if any. If Grantee is ever required- to pay any taxes or assessments on its interest in the Property, Grantor will reimburse Grantee for the same. b. Upkeep and Maintenance. Grantor shall be solely responsible for the upkeep and maintenance of the Property. Grantee shall have no obligation for the upkeep or maintenance of the Property. a Liability and Indemnification. To the extent provided for by an insurance policy or policies held by Grantor, Grantor agrees to indemnify and hold Grantee 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. Notwithstanding the foregoing, if such costs, claims or liability arise from any personal injury, accidents, negligence or KCBCM: 252126.5 7 1~ damage relating to the Property caused by the negligence of Grantee or its agents, the liability shall be apportioned accordingly. 9. Enforcement. Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement. With seven (7) days advance written notice to Grantor, Grantee may enter the Property for the purpose of inspecting for violations. If Grantee fords a violation, it may at its discretion take appropriate legal action. Except when an ongoing or imminent violation could irreversibly diminish or impair or the Conservation Values within either of the Envelopes, Grantee shall give Grantor written notice of the violation and sixty (60) days to correct it, before filing any legal action. ff a court with jurisdiction determines that a violation may exist or has occurred, Grantee may obtain an injunction to stop it, temporarily or permanently. A court may also issue an injunction requiring Grantor to restore the Property to its condition prior to the violation. The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time. 10. Transfer of Easement. Grantee shall have the right to transfer this Conservation Easement to any public agency or private nonprofit organization that (a) is approved by Grantor, such approval not to be unreasonably withheld, and (b) at the time of transfer, is a "qualified organization" under Sec. 170(h) of the U.S. Internal Revenue Code, and under N.C.G.S. 121-34 et seq., and (c) the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Conservation Easement. If Grantee ever ceases to exist or no longer qualifies under Sec. 170(h) or applicable state law, or to be authorized to acquire and hold conservation easements, or should Grantee acquire the entire fee interest in the Property, then Grantee's rights and obligations under this Easement shall become immediately vested in the County of Orange. 11. Transfer of Property. Any time the Property or any portion thereof or any interest in it is transferred by Grantor to any third party, Grantor shall notify Grantee in writing prior to the transfer of the Property, and the document of conveyance shall expressly refer to this Conservation Easement. 12. 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 Grantee's easement amendment policies, 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 N.C.G.S. 121-34 et seq. or any regulations promulgated pursuant to that law. 13. Termination of Easement. If it is determined that conditions on or surrounding the Property change so much that it becomes impossible to fulfill its conservation. purposes, a court with jurisdiction may, at the joint request of both Grantor and Grantee, terminate this Conservation Easement. If condemnation of a part of the Property or of the entire Property by public authority renders it impossible to fulfill any of these conservation purposes, the Conservation Easement may be terminated through condemnation proceedings. Grantee shall use any condemnation proceeds it receives consistently with the conservation purposes of this Conservation Easement. If the condemnation is by a governmental authority other than Grantor, all condemnation related expenses incurred by Grantor and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. If the condemnation is by Grantor, Grantor shall pay all related condemnation expenses except Grantee's attorney fees. KCBCM: 252126.5 8 r3 14. Interpretation. This Conservation Easement shall be interpreted under the laws of North Carolina, resolving any ambiguities and questions of the validity of specific provisions so as to give maximum effect to its conservation purposes. 15. Perpetual Duration. This Conservation Easement shall be a servitude running with the land in perpetuity. Every provision of this Conservation Easement that applies to Grantor or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear. 16. Inconsistent Use. There may be no use or activity on the Property that, while consistent with one of the stated Conservation Purposes of this Conservation Easement, would permit destruction of other significant conservation interests. A use that is destructive of conservation interests will be permitted only if such use is necessary for the protection of the conservation interests that are the subject of this Conservation Easement. 17. 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 Grantor: Orange County Environment and Resource Conservation Dept. P.O. BOX 8181 Hillsborough, NC 27278 To Grantee: Triangle Land Conservancy 1101 Haynes Street, Suite 205 Raleigh, North Carolina 27604 Attn: President 18. Environmental Condition. Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property. 19. Subsequent Liens on Propertv. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing would be subordinated to this Conservation Easement. 20. Acceptance and Effective Date. As attested by the Seal of the Triangle Land Conservancy and the signature of its President affixed hereto, Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Conservation Easement. This Conservation Easement is to be effective as of its recording in the County in which the Property lies. 21. Severability. Invalidity of any of the covenants, terms or conditions of this Conservation Easement, or any part thereof, by court order or judgment shall in no way affect the validity of any of the other provisions hereof which shall remain in full force and effect. KCBCM: 252126.5 9 i~ 22. Termination of Existing Easement. Grantor hereby acknowledges and agrees that the Existing Easement is terminated. To Have and To Hold, this Grant of Conservation Easement and Development Rights unto the Grantee, its successors and assigns, forever. [signature and acknowledgement pages follow] KCBCM: 252126.5 10 i~ In Witness Whereof, Grantor and Grantee have caused these presents to be executed in their respective names by authority duly given, and their seals affixed, the day and year above written. GRANTOR: ATTEST: By: Donna S. Baker Clerk to the Board of Commissioners NORTH CAROLINA COUNTY OF ORANGE Orange County, North Carolina By: Chair Orange County Board of Commissioners I, , a Notary Public of Orange County, North Carolina, do hereby certify that Donna S. Baker personally appeared before me this day and acknowledged that he/she is Clerk to the Board of Commissioners for Orange County, North Carolina, and that by authority duly given and as the act of Orange County, North Carolina, 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 Notary Public [Official Seal] Printed Name: My commission expires: 2008. KCBCM: 252126.5 11 i c~ STATE OF _ COUNTY OF Accepted: GRANTEE: TRIANGLE LAND CONSERVANCY a North Carolina Non-profit Corporation Kevin M. Brice, President and CEO I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she signed the foregoing document: Date: [Official Seal] Notary Public Printed Name: My commission expires: KCBCM: 252126.5 12 i~ CONSENT AND JOINDER Each of the undersigned hereby consents to the grant and recordation of the foregoing Deed of Easement and acknowledges and agrees that the easement granted by the undersigned to Orange County pursuant to that certain Deed of Conservation Easement, recorded at Deed Book 4433, Page 520, Orange County Registry is terminated and of no further effect. Fred M. Kirby Walker Dillard Kirby STATE OF _ COUNTY OF I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she signed the foregoing document: Date: Notary Public [Official Seal] STATE OF _ COUNTY OF Printed Name: I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she signed the foregoing document: Date: Notary Public [Official Seal] KCBCM: 252126.5 Printed Name: 13 18 E~1~IT A FOREST MANAGEMENT STANDARDS There shall be no timber harvesting, cutting of trees, or silvicultural activities except as follows: Trees in the Envelopes may be cut to control insects and disease, or to salvage wind-thrown timber. Such management activities must be approved in advance, except in emergencies, by Grantee and Grantor based upon review of the proposal by forest and wildlife consultants, giving due consideration to possible unintended consequences to wildlife and wildlife habitat. Tree or vegetation cutting may be permitted without approval of Grantee to maintain trail and road access, and to prevent personal injury and property damage. Commercial timber harvests are prohibited. All forest management activities must be in accordance with a written Forest Management Plan, prepared by a NC registered forester and approved by Grantee. The Forest Management Plan must be updated by Grantor and re-approved by Grantee at least every ten (10) years so long as Grantor wishes to continue to actively manage the forest or harvest forest products. If no forest management or harvest is intended, a forest management plan is not required, but there shall be no active forest management or harvest without an approved Forest Management Plan and Harvest Plan. A Harvest Plan prepared by a NC registered forester must be submitted to Grantee for its approval at least thirty (30) days prior to any harvest of timber. No silvicultural activity may occur until the Forest Management Plan and a more specific Harvest Plan have been approved in writing by Grantee. The Harvest Plan, also produced by a NC registered forester and approved by Grantee, must include at least the following: Description of property (timber sale area) access and constraints to access; Landowner goals and the forester's silvicultural objectives and goals from the harvest; • A timber inventory in targeted management areas with volume, stocking, and species data, and projected yields. Inventory may be estimated or omitted with prior approval of Grantee in cases where it is not deemed necessary (such as pre-commercial thinnings); • Prescribed activities and precautions including protection methods for any unique natural, geological, or historical areas and erosion and sedimentation control actions for water quality protection and a smoke management plan if fire is to be used; • Descriptive map(s) of all management areas, including logging deck(s), skid trails, roads, streams, streamside management zones (buffers), stream crossings, and areas of special concern; • Clear marking of stream buffers and any stream crossings. Inadequate buffer widths and/or potential for excessive disturbance of stream buffers are grounds for rejection of a Harvest Plan by Grantee. The number of stream crossings should be minimized and carefully selected to minimize disturbance to the streams or drainage channels and surrounding soils and vegetation; KCBCM: 252126.5 14 i~ • A statement signed by the forester acknowledging that management activities follow the terms of the easement and will be supervised by the forester; Grantee's approval of the Forest Management Plan or Harvest Plan shall not be unreasonably withheld, but may be withheld or conditioned if prescribed actions may compromise the Conservation Values, or if it does not adequately address all required items listed above or other issues pertinent to the intent of this Easement. All forest management activities shall be conducted in accordance with North Carolina Division of Forest Resources' Best Management Practices guidelines for timber harvest and management, including the application of fertilizer, pesticides or herbicides, as the same may be promulgated by law or regulation in the state of North Carolina and as adopted by the North Carolina .organization of professional foresters. KCBCM: 252126.5 15