ORD-2010-095 - Budget Amendment #5-A - Purchase of a Conservation Easement

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17 Volpe Conservation Easement (South) Draft 11/19110 organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under NCGS 121 -34 et seq., provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Deed. The Association for the Preservation of the Eno River Valley, Inc. has agreed to serve as back -up easement holder if the Grantee were no longer in a position to hold the conservation easement. If the Grantee ever ceases to exist or no longer qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Conservation Easement. 9. TRANSFER OF EASEMENT AREA. The Grantors agree to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which it transfers or divests itself of any interest, including leasehold interest, in all or a portion of the Easement Area. The Grantors shall notify the Grantee in writing at least thirty (30) days before conveying the Easement Area, or any part thereof or interest therein. Failure of Grantors to do so shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 10. AMENDMENT OF EASEMENT. This Conservation Easement may be amended only with the written consent of Grantors 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. Grantors and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement. 11. PROCEDURE IN THE EVENT OF TERNIINATION OF CONSERVATION EASEMENT. If it determines that conditions on or surrounding the Easement Area change so much that it becomes impossible to fulfill the conservation purposes of this Conservation Easement, a court with jurisdiction may, at the joint request of both the Grantors and the Grantee, terminate or modify the Conservation Easement created by this Deed in accordance with applicable State law. If the Conservation Easement is terminated and the Easement Area is sold, then as required by Section 1.1 70A- 14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of 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 Grantors, equal to the ratio of the appraised value of this Conservation Easement to the unrestricted fair market value of the Easement Area., as these values are determined on the date of this Conservation Easement, subject to any applicable law which expressly provides for a different disposition of the proceeds. All termination related expenses, including reasonable attorney fees, incurred by the Grantors and the Grantee shall be paid out of any recovered proceeds prior to distribution of the Page 11 of 16