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HomeMy WebLinkAboutAgenda - 06-15-2010 - 4eORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 15, 2010 Action Agenda Item No. 4-e SUBJECT: Acceptance of Two Grants for Purchasing a Conservation Easement at the Breeze Farm DEPARTMENT: Environment, Agriculture, Parks PUBLIC HEARING: (Y /N) No and Recreation ( DEAPR) ATTACHMENT ADFP Contract (Draft) FRPP Cooperative Agreement Amendment INFORMATION CONTACT: David Stancil, 245 -2510 Rich Shaw, 245 -2514 PURPOSE: To consider accepting a state grant from the NC Agricultural Development and Farmland Preservation Trust Fund and federal matching funds from the federal Farm and Ranch Land Protection Program for the County's purchase of an agricultural conservation easement on the Breeze farm in Orange County. BACKGROUND: The acquisition of agricultural conservation easements to help preserve prime farmland is a longstanding goal of the Board of Commissioners and a priority of the Lands Legacy Program. During the first ten years of the program, Orange County has helped to protect 1,550 acres of privately owned farmland and natural areas with permanent conservation easements. In December 2009 Orange County applied for state matching funds from the NC Agricultural Development and Farmland Preservation (ADFP) Trust Fund. The funds would be used by the County to complete the planned two- phased conservation easement on the Breeze farm located on Schley Road (Cedar Grove Township). In 2008 the County acquired an easement on a 141 -acre portion of Breeze farm (Phase 1). Phase II will be on the adjacent 153 acres. The County's grant application anticipated the possibility of obtaining up to $172,000 in federal matching funds for this project from the federal Farm and Ranch Land Protection Program (FRPP). The County applied for those federal matching funds in March. DEAPR was notified in early April that the County's Breeze farm application was selected to receive $150,000 from the ADFP Trust Fund. Then on May 21 DEAPR was notified that the County was awarded $172,000 in federal FRPP matching funds for the same project. Over the next several months DEAPR will work with the landowners and the grant agencies on the details of the easement and bring it back for Board approval at a future meeting. Draft agreements for the grant funds are attached for the Board's consideration. The ADFP Trust Fund has provided a model contract that is to be completed in order to obligate the state grant funds by July 1. The federal FRPP requires that the County amend an existing Cooperative Agreement that the County entered with the US Commodity Credit Corporation for an earlier farm easement project in 2009. The agreement is needed to obligate the federal funds for use by the County. The amendment adds the additional $172,000 and new timeframe for completing this project by August 31, 2012. Both agreements need to be completed before June 30 prior to the Board returning from its summer break. Both agreements will be reviewed for approval by the County Attorney. FINANCIAL IMPACT: The proposed conservation easement would reduce the market value of the 153 -acre property by an estimated $590,000 (as determined by January 2009 appraisal). The County's proposal is to pay the landowner $472,000, or 80 percent of the easement value. The State ADFP grant would contribute $150,000 and the federal FRPP grant would contribute $172,000. The estimated County share of the purchase price is $150,000 (32 %) although that could change with an updated appraisal. The landowner has pledged to donate up to $118,000 in easement value and take advantage of federal and state tax benefits available for partial easement donations. The County would pay its share of the purchase price (approximately $150,000) and an estimated $10,000 in transaction costs for the appraisals, boundary survey, legal fees and title insurance. The total cost to the County would be no more than $180,000. The County's share of funds would come from the remaining $281,727 in alternative financing approved by the Board of Commissioners in FY 2003 -04 (total of $3.0 million). A Conservation Easement Capital Project Ordinance would be provided to the Board for consideration at a future meeting. RECOMMENDATION(S): The Manager recommends that the Board approve and authorize the Chair to sign: a) the amendment to the Cooperative Agreement between Orange County and the US Commodity Credit Corporation for the receipt of $172,000 in federal funds for the acquisition of an agricultural conservation easement on the Breeze farm prior to August 31, 2012. The terms of the final agreement are subject to final review by the County Attorney and staff; and b) the contract between Orange County and the NC Department of Agriculture and Consumer Services for the receipt of $150,000 in state funds for the acquisition of an agricultural conservation easement on the Breeze farm prior to June 30, 2012. The terms of the final agreement are subject to final review by the County Attorney and staff. STATE OF NORTH CAROLINA County of Wake 3 Departmental Use Only Center: Account: Co Code: CDFA# /Other: North Carolina Department of Agriculture and Consumer Services NC Agricultural Development and Farmland Preservation Trust Fund Contract # This Contract is hereby entered into by and between the North Carolina Department of Agriculture and Consumer Services (Agency), NC Agricultural Development and Farmland Preservation Trust Fund, and (Grantee). The Grantee's federal tax identification number is .The Grantee is physically located in County and is further located at Financial assistance provided to the grantee under this contract is The Grantee's fiscal year begins July 1 and ends June 30. On an annual basis, the Agency may extend this Contract, in writing by the Agency, for the purposes of a time extension and to incorporate any other changes that may be appropriate due to changes in applicable rules and regulations, policies, and procedures. 1. Contract Documents: This Contract consists of the following documents: a. This Contract b. The General Terms and Conditions (Attachment A) c. The Scope of Work (Attachment B) d. The Budget (Attachment C) e. The Project Timeline (Attachment D) f. The Conservation Easement Content (Attachment E) These documents constitute the entire agreement between the Parties and supersede all prior oral or written statements or agreements. 2. Precedence Among Contract Documents: In the event of a conflict between or among the terms of the Contract Documents, the terms in the Contract Document with the highest relative precedence shall prevail. The order of precedence shall be the order of documents as listed in Paragraph 1, above, with the first - listed document having the highest precedence and the last- listed document having the lowest precedence. If there are multiple Contract Amendments, the most recent amendment shall have the highest precedence and the oldest amendment shall have the lowest precedence. 3. Effective Period: This Contract shall be effective on July 1, 2010, and shall terminate on June 30, 2012, with the option to extend, if mutually agreed upon, through a written amendment as provided for in the General Terms and Conditions as described in Attachment A. 4. Grantee's Duties: The Grantee shall conduct activities as described in Attachment B, Scope of Work, and in accordance with the approved budget in Attachment C and the approved timeline in Attachment D. In addition, the Grantee shall complete the activities as specified below. a. The Grantee shall be responsible for the acquisition of all permits and licenses required in the performance of the aforementioned activities as described in the Scope of Work and for ensuring compliance with all applicable Federal, State, county, and local regulations. b. The Grantee shall provide the Agency with a draft "Conservation Easement." The Grantee shall include the Conservation Easement Required Content, Attachment E, in this draft "Conservation Easement' and in the final MS &NCD Form 0009A Grant Cover Sheet CE Eff. 9/2005 Revised 02/09 Revised 5/06, 7/07 Page 1 of 5 4 "Conservation Easement." The final "Conservation Easement" must meet with Agency approval to remain eligible for funding. c. The Grantee shall provide the Agency with two certified copies of the fully executed and properly recorded "Conservation Easement." Prior to the receipt of these required documents, the Agency shall pay to the Grantee no more than $25,000. Upon receipt of the two copies of the fully executed and properly recorded "Conservation Easement," the Agency shall pay to the Grantee all remaining funds less 20% of the awarded grant amount (refer to Line "e" of Grantee's Duties). d. The Grantee shall provide the Agency with easement documentation reports, a copy of the title opinion, a copy of the land survey, and quarterly progress reports, both financial and programmatic. In -kind and cash match shall be a part of the required financial reports, and documentation of the reported match shall be included with the reports. Documents shall be in the form of individual time sheets that have been signed by the individual employee and approved by the appropriate supervisor, travel logs and invoices for in -kind match; copies of checks, bank deposits and fund transfers for cash match. Other types of documents may be acceptable with the approval of the Contract Administrator. e. The Grantee shall also submit a final grant report. Included in the final report, the Grantee shall provide an accounting of final match claimed by the Grantee to fulfill the match requirement mandated under N.C.G.S. 106 -744 (c2). The Agency will retain 20% of the grant amount until this final report, including cash match and in- kind documentation, is received and approved by the Agency. f. The Grantee shall complete all reports in a prescribed format, which shall be provided by the Agency. Reports and required documentation must be up -to -date in order for the Grantee to receive payments. g. After recording the "Conservation Easement" in the Register of Deeds Office, the Grantee shall annually notify the landowner and conduct a monitoring visit to the property to ensure that the easement agreement is being upheld. If structures are permitted under the easement, the Grantee shall review plans and monitor construction for compliance with the plans. In the event of a violation, the Grantee shall require voluntary correction, and if necessary, take legal action to enforce the easement. The Grantee shall report its monitoring findings to the Agency on an annual basis, by completing an "Annual Monitoring and Reporting Form," which will be provided to the Grantee by the Agency. Should the "Annual Monitoring and Reporting Form" be made available to the Grantee in electronic format, the Grantee shall complete the forms and submit them electronically on an annual basis, and not later than December 31 of each year of the "Conservation Easement." The Grantee shall notify the Agency within two weeks of the discovery date of any violations and of any non - compliance issues and provide the Agency with corrective action to be taken. h. All publicity and printed materials regarding projects or activities supported in whole or in part by this grant shall contain the following language: "This project received support from the NC ADFP Trust Fund." The NC ADFP Trust Fund logo (digital versions of which can be downloaded from the NC ADFP Trust Fund website at www.ncadfp.org) shall be displayed in all of the Grantee's publicity and printed materials relating to this grant. i. With easement purchases, the Grantee shall ensure that acres are placed under an agricultural easement with no more than a 5% variance in recorded easement acreage without prior written approval of the Agency. The share of the funds used to purchase the agricultural easement from matching resources and Agency resources must be maintained as noted in Attachment C. The Agency may grant an exception to the share of the funds provided that matching resources for easement purchase are greater than 50 %. 5. Agency's Duties: The Agency shall pay the Grantee in the manner and in the amounts specified in the Contract Documents. The total amount paid by the Agency to the Grantee under this Contract shall not exceed This amount consists of in State funds. [ ] a. There are no matching requirements from the Grantee. [X] b. The Grantee's matching requirement is which shall consist of: [ ] In -kind [ ] Cash [ ] Cash and In -kind [ ] Cash and /or In -kind The total contract amount is $330,973.50. 6. Conflict of Interest Policy: The Agency has determined that the Grantee is a governmental entity and is; therefore, not subject to N.C.G.S. 143C- 6-23(c). MS &NCD Form 0009A Grant Cover Sheet CE Eff. 9/2005 Revised 02/09 Revised 5/06, 7/07 Page 2 of 5 5 7. Statement of No Overdue Tax Debts: The Agency has determined that the Grantee is a governmental entity and is; therefore, not subject to N.C.G.S. 143C- 6- 23(c). 8. Reversion of Unexpended Funds: Any unexpended grant funds shall revert to the Agency upon termination of this Contract. 9. Reporting Requirements: The Agency has determined that the Grantee reports to the Local Government Commissions and is; therefore, not subject to the reporting requirements mandated by N.C.G.S. 143C -6 -23. 10. Payment Provisions: The Agency shall make no more than three installment payments to the Grantee. In accordance with Paragraph 4, Line c, the Agency shall pay to the Grantee no more than $25,000 upon final execution of this Contract. Thereafter, all "Request for Payment" forms shall be supported by appropriate invoices, or other types of billing documents as may be required by the Agency. In order to receive remaining funds, the Grantee may select one of the options described below: a. The Grantee may request from the Agency all remaining funds less 20% of the awarded grant amount (refer to Paragraph 4, Line e) upon the Grantee's submission of a properly recorded and fully executed Conservation Easement. At a later date, but prior to the expiration date of the contract, the Grantee may request the final payment, which is the remaining 20% of the awarded grant amount, upon the Grantee's submission of a final grant report and a completed "Request for Payment" form. This final payment shall be contingent upon the final report being deemed compliant with the Agency's reporting specifications and the Grantee's approved budget, as well as all supporting documentation being determined to be sufficient evidence of expenditures for which final payment is being requested. Final payment shall not be made until all supporting documents for all expenditures and match requirements, covering the entire contract period, have been deemed satisfactory by the Contract Administrator. b. The Grantee may request from the Agency all remaining funds upon the Grantee's submission of a properly recorded and fully executed Conservation Easement and of a final grant report and a completed "Request for Payment" form. This final payment shall be contingent upon the final report being deemed compliant with the Agency's reporting specifications and the Grantee's approved budget, as well as all support documentation being determined to be sufficient evidence of expenditures for which final payment is being requested. Final payment shall not be made until all supporting documents for all expenditures and match requirements, covering the entire contract period, have been deemed satisfactory by the Contract Administrator. Upon expiration of the contract, the Grantee shall have 60 days from the expiration date to pay out any encumbrances made in accordance with its approved budget. Should the Grantee have unspent funds remaining at the end of the 60 -day period, these unspent funds shall be immediately returned to the Agency and in no event later than 5 business days after the end of the 60 -day period of time. Under no circumstances shall the Grantee encumber or expend funds provided under this contract after the contract expiration date. If this Contract is terminated prior to the original end date, all unexpended funds shall be returned by the Grantee to the Agency within 60 days of the contract termination date. The Grantee shall also provide the Agency with a final report, in a format provided by the Agency, within 60 days of the contract termination date. If the Contract Administrator, based on the Grantee's final report, determines that final expenditures have been made that are not in accordance with the Grantee's approved budget, the Grantee shall also return that portion of funds to the Agency immediately. The Grantee shall submit all requests for payment for the month of June, relating to this contract period, to the Agency no later than June 10. All payments are contingent upon fund availability. Payment shall be made in accordance with the Contract Documents as described in the Scope of Work, Attachment B. MS &NCD Form 0009A Grant Cover Sheet CE Eff. 9/2005 Revised 02/09 Revised 5/06, 7/07 Page 3 of 5 11. Contract Administrators: All notices permitted or required to be given by one Party to the other and all questions about the contract from one Party to the other shall be delivered to the other Party's Contract Administrator by United States mail, postage prepaid, and addressed as set out below. Notice will be deemed to be received on the date it is actually delivered to the receiving party. The name, post office address, street address, telephone number, fax number, and email address of the Parties' respective initial Contract Administrators are set out below. Either Party may change the name, post office address, street address, telephone number, fax number, or email address of its Contract Administrator by giving timely written notice to the other Party. For the Agency: IF DELIVERED BY US POSTAL SERVICE IF DELIVERED BY ANY OTHER MEANS NC Department of Agriculture and Consumer Services NC Department of Agriculture and Consumer Services ADFP Trust Fund ADFP Trust Fund 1001 Mail Service Center 2 West Edenton Street Raleigh, NC 27699 -1001 Raleigh, NC 27601 Telephone (919) 715 -1206 Fax (919) 715 -1204 Email ncadf nca r. ov For the Grantee: IF DELIVERED BY US POSTAL SERVICE IF DELIVERED BY ANY OTHER MEANS Telephone Fax Email 12. Supplementation of Expenditure of Public Funds: The Grantee assures that funds received pursuant to this Contract shall be used only to supplement, not to supplant, the total amount of federal, state and local public funds that the Grantee will otherwise expend for its conservation easement. Funds received under this Contract shall be used to provide additional public funding for this project; the funds shall not be used to reduce the Grantee's total expenditure of other public funds for its conservation easement. 13. Disbursements: As a condition of this Contract, Grantee acknowledges and agrees to make disbursements in accordance with the following requirements: a. Implement adequate internal controls over disbursements; b. Pre -audit all vouchers presented for payment to determine: • Validity and accuracy of payment • Payment due date • Adequacy of documentation supporting payment • Legality of disbursement c. Assure adequate control of signature stamps /plates; d. Assure adequate control of negotiable instruments; and e. Implement procedures to insure that account balance is solvent and reconcile the account monthly. MS &NCD Form 0009A Grant Cover Sheet CE Eff. 9/2005 Revised 02/09 Revised 5/06, 7/07 Page 4 of 5 14. Outsourcing: The Grantee certifies that it has identified to the Agency all jobs related to the Contract that have been outsourced to other countries, if any. Grantee further agrees that it will not outsource any such jobs during the term of this Contract without providing notice to the Agency. 15. Signature Warranty: The undersigned represent and warrant that they are authorized to bind their principals to the terms of this agreement. In Witness Whereof, the Grantee and the Agency have executed this Contract in duplicate originals, with one original being retained by each party. Signature of Authorized Representative Printed Name North Carolina Department of Agriculture & Consumer Services Signature of Authorized Representative N. David Smith Printed Name MS &NCD Form 0009A Grant Cover Sheet Eff. 9/2005 Revised 5/06, 7/07 Date Title Insert NOTARY SEAL Notary Signature Notary Commission Expiration Date Date Chief Deputy Commissioner Title CE Revised 02/09 Page 5 of 5 7 putut SECTC)R i✓C3.[yi ACTS Attachment A General Terms and Conditions DEFINITIONS Unless indicated otherwise from the context, the following terms shall have the following meanings in this Contract. All definitions are from 9 NCAC 3M.0102 unless otherwise noted. If the rule or statute that is the source of the definition is changed by the adopting authority, the change shall be incorporated herein.: (1) "Agency" (as used in the context of the definitions below) shall mean and include every public office, public officer or official (State or local, elected or appointed), institution, board, commission, bureau, council, department, authority or other unit of government of the State or of any county, unit, special district or other political subagency of government. For other purposes in this Contract, "Agency' shall mean the entity identified as one of the parties hereto. (2) "Audit" means an examination of records or financial accounts to verify their accuracy. (3) "Certification of Compliance" means a report provided by the Agency to the Office of the State Auditor that states that the Grantee has met the reporting requirements established by this Subchapter and included a statement of certification by the Agency and copies of the submitted grantee reporting package. (4) "Compliance Supplement" refers to the North Carolina State Compliance Supplement, maintained by the State and Local Government Finance Agency within the North Carolina Department of State Treasurer that has been developed in cooperation with agencies to assist the local auditor in identifying program compliance requirements and audit procedures for testing those requirements. (5) "Contract" means a legal instrument that is used to reflect a relationship between the agency, grantee, and subgrantee. (6) "Fiscal Year" means the annual operating year of the non -State entity. (7) "Financial Assistance" means assistance that non -State entities receive or administer in the form of grants, loans, loan guarantees, property (including donated surplus property), cooperative agreements, interest subsidies, insurance, food commodities, direct appropriations, and other assistance. Financial assistance does not include amounts received as reimbursement for services rendered to NG0 Form 0009132 Grants General Terms and Conditions - Public Sector Entities Eff. 9/2005 Revised 7/2007 individuals for Medicare and Medicaid patient services. (8) "Financial Statement" means a report providing financial statistics relative to a given part of an organization's operations. or status. (9) "Grant" means financial assistance provided by an agency, grantee, or subgrantee to carry out activities whereby the grantor anticipates no programmatic involvement with the grantee or subgrantee during the performance of the grant. (10) "Grantee" has the meaning in N.C.G.S. 143C -6- 23(a)(2): a non -State entity that receives a grant of State funds from a State agency, department, or institution but does not include any non -State entity subject to the audit and other reporting requirements of the Local Government Commission. For other purposes in this Contract, "Grantee" shall mean the entity identified as one of the parties hereto. (11) "Grantor" means an entity that provides resources, generally financial, to another entity in order to achieve a specified goal or objective. (12) "Non -State Entity" has the meaning in N.C.G.S. 143C- 1- 1(d)(18): Any of the following that is not a State agency: An individual, a firm, a partnership, an association, a county, a corporation, or any other organization acting as a unit. The term includes a unit of local government and public authority. (13) "Public Authority" has the meaning in N.C.G.S. 143C- 1- 1(d)(22): A municipal corporation that is not a unit of local government or a local governmental authority, board, commission, council, or agency that (i) is not a municipal corporation and (ii) operates on an area, regional, or multiunit basis, and the budgeting and accounting systems of which are not fully a part of the budgeting and accounting systems of a unit of local government. (14) "Single Audit" means an audit that includes an examination of an organization's financial statements, internal controls, and compliance with the requirements of Federal or State awards. (15) "Special Appropriation" means a legislative act authorizing the expenditure of a designated amount of public funds for a specific purpose. (16) "State Funds" means any funds appropriated by the North Carolina General Assembly or collected by the State of North Carolina. State funds include federal financial assistance E:3 received by the State and transferred or disbursed to non -State entities. Both Federal and State funds maintain their identity as they are subgranted to other organizations. Pursuant to N.C.G.S. 143C- 6- 23(a)(1), the terms "State grant funds" and "State grants" do not include any payment made by the Medicaid program, the Teachers' and State Employees' Comprehensive Major Medical Plan, or other similar medical programs. (17) "Subgrantee" has the meaning in N.C.G.S.143C- 6- 23(a)(3): a non -State entity that receives a grant of State funds from a grantee or from another subgrantee but does not include any non -State entity subject to the audit and other reporting requirements of the Local Government Commission. (18) "Unit of Local Government has the meaning in N.C.G.S. 143C- 1- 1(d)(29): A municipal corporation that has the power to levy taxes, including a consolidated city- county as defined by N.C.G.S. 160B -2(1), and all boards, agencies, commissions, authorities, and institutions thereof that are not municipal corporations. Relationships of the Parties Independent Contractor: The Grantee is and shall be deemed to be an independent contractor in the performance of this Contract and as such shall be wholly responsible for the work to be performed and for the supervision of its employees. The Grantee represents that it has, or shall secure at its own expense, all personnel required in performing the services under this agreement. Such employees shall not be employees of, or have any individual contractual relationship with, the Agency. Subcontracting: The Grantee shall not subcontract any of the work contemplated under this Contract without prior written approval from the Agency. Any approved subcontract shall be subject to all conditions of this Contract. Only the subcontractors or subgrantees specified in the contract documents are to be considered approved upon award of the contract. The Agency shall not be obligated to pay for any work performed by any unapproved subcontractor or subgrantee. The Grantee shall be responsible for the performance of all of its subgrantees and shall not be relieved of any of the duties and responsibilities of this Contract. Subgrantees: The Grantee has the responsibility to ensure that all subgrantees, if any, provide all information necessary to permit the Grantee to comply with the standards set forth in this Contract. Assignment: No assignment of the Grantee's obligations or the Grantee's right to receive payment NGO Form 000962 Grants General Terms and Conditions - Public Sector Entities Eff. 9/2005 Revised 7/2007 hereunder shall be permitted. However, upon written request approved by the issuing purchasing authority, the State may: (a) Forward the Grantee's payment check(s) directly to any person or entity designated by the Grantee, or (b) Include any person" or entity designated by Grantee as a joint payee on the Grantee's payment check(s). In no event shall such approval and action obligate the State to anyone other than the Grantee and the Grantee shall remain responsible for fulfillment of all contract obligations. Beneficiaries: Except as herein specifically provided otherwise, this Contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors. It is expressly understood and agreed that the enforcement of the terms and conditions of this Contract, and all rights of action relating to such enforcement, shall be strictly reserved to the Agency and the named Grantee. Nothing contained in this document shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the Agency and Grantee that any such person or entity, other than the Agency or the Grantee, receiving services or benefits under this Contract shall be deemed an incidental beneficiary only. Indemnity Indemnification: The Grantee agrees to indemnify and hold harmless the Agency, the State of North Carolina, and any of their officers, agents and employees, from any claims of third parties arising out of any act or omission of the Grantee in connection with the performance of this Contract to the extent permitted by law. Default and Termination Termination by Mutual Consent: The Parties may terminate this Contract by mutual consent with 60 days notice to the other party, or as otherwise provided by law. Termination for Cause: If, through any cause, the Grantee shall fail to fulfill its obligations under this Contract in a timely and proper manner, the Agency shall have the right to terminate this Contract by giving written notice to the Grantee and specifying the effective date thereof. In that event, all finished or unfinished deliverable items prepared by the Grantee under this Contract shall, at the option of the Agency, become its property and the Grantee shall be entitled to receive just and equitable compensation for any satisfactory work completed on such materials, minus any payment or compensation previously made. Notwithstanding the foregoing provision, the Grantee shall not be relieved of liability to the Agency for damages sustained by the N Agency by virtue of the Grantee's breach of this agreement, and the Agency may withhold any payment due the Grantee for the purpose of setoff until such time as the exact amount of damages due the Agency from such breach can be determined. The filing of a petition for bankruptcy by the Grantee shall be an act of default under this Contract. Waiver of Default: Waiver by the Agency of any default or breach in compliance with the terms of this Contract by the Grantee shall not be deemed a waiver of any subsequent default or breach and shall not be construed to be modification of the terms of this Contract unless stated to be such in writing, signed by an authorized representative of the Agency and the Grantee and attached to the contract. Availability of Funds: The parties to this Contract agree and understand that the payment of the sums specified in this Contract is dependent and contingent upon and subject to the appropriation, allocation, and availability of funds for this purpose to the Agency. Force Majeure: Neither party shall be deemed to be in default of its obligations hereunder if and so long as it is prevented from performing such obligations by any act of war, hostile foreign action, nuclear explosion, riot, strikes, civil insurrection, earthquake, hurricane, tornado, or other catastrophic natural event or act of God. Survival of Promises: All promises, requirements, terms, conditions, provisions, representations, guarantees, and warranties contained herein shall survive the contract expiration or termination date unless specifically provided otherwise herein, or unless superseded by applicable federal or State statutes of limitation. Intellectual Property Rights Copyrights and Ownership of Deliverables: All deliverable items produced pursuant to this Contract are the exclusive property of the Agency. The Grantee shall not assert a claim of copyright or other property interest in such deliverables. Compliance with Applicable Laws Compliance with Laws: The Grantee shall comply with all laws, ordinances, codes, rules, regulations, and licensing requirements that are applicable to the conduct of its business, including those of federal, state, and local agencies having jurisdiction and /or authority. Equal Employment Opportunity: The Grantee shall comply with all federal and State laws relating to equal employment opportunity. NGO Form 0009132 Grants General Terms and Conditions - Public Sector Entities Eff. 9/2005 Revised 7/2007 10 Confidentiality Confidentiality: Any information, data, instruments, documents, studies or reports given to or prepared or assembled by the Grantee under this agreement shall be kept as confidential and not divulged or made available to any individual or organization without the prior written approval of the Agency. The Grantee acknowledges that in receiving, storing, processing or otherwise dealing with any confidential information it will safeguard and not further disclose the information except as otherwise provided in this Contract. Oversight Access to Persons and Records: The State Auditor shall have access to persons and records as a result of all contracts or grants entered into by State agencies or political subdivisions in accordance with N.C.G.S 147- 64.7. Additionally, as the State funding authority, the Agency shall have access to persons and records as a result of all contracts or grants entered into by State agencies or political subdivisions. Record Retention: Records shall not be destroyed, purged or disposed of without the express written consent of the Agency. State basic records retention policy requires all grant records to be retained for a minimum of five years or until all audit exceptions have been resolved, whichever is longer. If the contract is subject to Federal policy and regulations, record retention may be longer than five years since records must be retained for a period of three years following submission of the final Federal Financial Status Report, if applicable, or three years following the submission of a revised final Federal Financial Status Report. Also, if any litigation, claim, negotiation, audit, disallowance action, or other action involving this Contract has been started before expiration of the five -year retention period described above, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular five - year period described above, whichever is later. Miscellaneous Choice of Law: The validity of this Contract and any of its terms or provisions, as well as the rights and duties of the parties to this Contract, are governed by the laws of North Carolina. The Grantee, by signing this Contract, agrees and submits, solely for matters concerning this Contract, to the exclusive jurisdiction of the courts of North Carolina and agrees, solely for such purpose, that the exclusive venue for any legal proceedings shall be Wake County, North Carolina. The place of this Contract and all transactions and agreements relating to it, and their situs and forum, shall be Wake County, North Carolina, where all matters, whether sounding in contract or tort, relating to the validity, construction, interpretation, and enforcement shall be determined. Amendment: This Contract may not be amended orally or by performance. Any amendment must be made in written form and executed by duly authorized representatives of the Agency and the Grantee. Severability: In the event that a court of competent jurisdiction holds that a provision or requirement of this Contract violates any applicable law, each such provision or requirement shall continue to be enforced to the extent it is not in violation of law or is not otherwise unenforceable and all other provisions and requirements of this Contract shall remain in full force and effect. Headings: The Section and Paragraph headings in these General Terms and Conditions are not material parts of the agreement and should not be used to construe the meaning thereof. Time of the Essence: Time is of the essence in the performance of this Contract. Care of Property: The Grantee agrees that it shall be responsible for the proper custody and care of any property furnished to it for use in connection with the NGO Form 0009132 Grants General Terms and Conditions - Public Sector Entities Eff. 9/2005 Revised 7/2007 11 performance of this Contract and will reimburse the Agency for loss of, or damage to, such property. At the termination of this Contract, the Grantee shall contact the Agency for instructions as to the disposition of such property and shall comply with these instructions. Travel Expenses: Reimbursement to the Grantee for travel mileage, meals, lodging and other travel expenses incurred in the performance of this Contract shall be reasonable and supported by documentation. State rates should be used as guidelines. International travel shall not be reimbursed under this Contract. Sales /Use Tax Refunds: If eligible, the Grantee and all subgrantees shall: (a) ask the North Carolina Department of Revenue for a refund of all sales and use taxes paid by them in the performance of this Contract, pursuant to N.C.G.S. 105 - 164.14; and (b) exclude all refundable sales and use taxes from all reportable expenditures before the expenses are entered in their reimbursement reports. Advertising: The Grantee shall not use the award of this Contract as a part of any commercial advertising. 12 Attachment B THE SCOPE OF WORK 13 Attachment C THE BUDGET 14 Attachment D THE PROJECT TIMELINE 15 Attachment E THE CONSERVATION EASEMENT CONTENT The following TERMS AND CONDITIONS are required to be included in this Conservation Easement unless modified by the North Carolina Department of Agriculture and Consumer Services. A. Definitions Grantor —the landowning entity that provides the body of the easement. Grantee —the recipient of the easement. Conservation Purposes — agricultural, horticultural, and forestland activities. Property — agricultural farmland. B. Grant of Conservation Easement Grantor(s) hereby voluntarily grant and convey to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual (or a term of years) Conservation Easement, which must be defined by a metes and bounds description. Grantor(s) promise that they will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the covenants herein. Grantor(s) authorize the Grantee to enforce these covenants in the manner described herein. C. Grantor's Development Rights Grantor(s) hereby voluntarily grant and convey to the Grantee all development rights for the Property, except as otherwise reserved and provided by the terms of this Conservation Easement, that are now or hereafter inherent in the Property. D. Grantor's Reserved Uses and Restrictions Subject to the terms and restrictions hereto, the Grantor(s) reserve to and for themselves and their successors all customary rights and privileges of ownership, unless otherwise specifically prohibited herein. E. Grantor's Right to Use the Property for Customary Rural Enterprises Grantor(s) retain the right to use the portion of the Property as shown on Exhibit B, and more particularly described in the Baseline Documentation Report, for otherwise lawful and customary rural enterprises, such as, but not limited to, a winery, bed and breakfast, saw mills, farm machinery repair enterprises. Conducting customary rural commercial enterprises on any other part of the Property is not permitted without the advance written permission of the Grantee in each instance. The Grantee shall not give such permission unless the Grantee determines that the proposed use will not substantially diminish or impair the conservation values of the Property. F. Prohibited Activities Any activities, practices, or uses of the Property, that would in anyway alter, impede, or interfere with the conservation values and agricultural goals sought to be protected by this Conservation Easement are strictly prohibited. Attachment E G. Natural Resource Restoration and Enhancement Activities Notwithstanding any terms contained within this contract others to engage in any activity designed resources found or once present on the Property, impair the conservation values of the Property. H. Grantor's Road Construction 16 Conservation Easement, Grantor(s) may engage or to repair, restore, or otherwise enhance the natural so long as such uses do not significantly diminish or Construction and maintenance of unpaved farm roads that may be reasonably necessary and incidental to carrying out the improvements and uses permitted on the Property by this Conservation Easement are permitted. I. Mining There shall be no filling; excavation; dredging; mining; 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 for the purpose of combating erosion or flooding and as reasonably necessary for any permitted maintenance, construction or reconstruction on the Property. J. Trash and Hazardous Waste No trash, refuse, vehicle bodies or parts, rubbish, debris, junk, waste, radioactive or hazardous waste shall be placed, stored, dumped, buried or permitted to remain on the Property. Except that, the storage of agricultural products, byproducts (including the composting of biodegradable material for on -farm use) and agricultural equipment on the Property is allowable, so long as such storage is done in accordance with all applicable government laws and regulations and in such a manner so as to not impair the conservation values of the Property. K. Farm and Forestlands Agricultural operations including, but not limited to, timber harvesting, grazing, horticulture and animal husbandry are permitted on the Property. L. Transfer of Property Grantor(s) agree to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which they transfer or divest themselves of any interests, including leasehold interests, in all or a portion of the Property. Failure of Grantor(s) to comply with this section shall not impair the validity of this Conservation Easement as to successor owners or limit its enforceability in any way, nor shall any Grantor's failure to comply with this section constitute a default under this Conservation Easement. M. Transfer of Conservation Easement Subject to the contingent rights of the State of North Carolina with timely written notice and approval of the North Carolina Department of Agriculture and Consumer Services, the Grantee shall have the right to transfer this Conservation Easement to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under 26 U.S.C. §170(h) of the 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 the Grantee by this Conservation Easement. As a condition of such transfer, 17 Attachment E Grantee shall require that the conservation purposes intended to be advanced hereunder shall be continued to be carried out. If the Grantee ever ceases to exist or no longer qualifies under 26 U.S.C. §170(h) of the 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. N. Grantor's Title Warranty The Grantor(s) warrant that they hold fee simple title to the Property and must disclose any encumbrances on the Property to the Commissioner of Agriculture and hereby promise to defend the same against all claims that may be made against it. O. Parties in Interest If the Grantor(s) are multiple parties in interest or a trust, all signatures obtained must be by authorized officers or parties. P. Grantor's Environmental Warranty The Grantor(s) warrant that they have no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property. Q. Obligations Other than as specified herein, this Conservation Easement does not impose any legal or other responsibility on the Grantee or the State of North Carolina. R. Liability and Indemnification The Grantor(s) agree to indemnify and hold Grantee and the State of North Carolina harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof, unless due to the negligence of Grantee or its agents, in which case liability shall be apportioned accordingly. S. Enforcement With reasonable advance written notice to the Grantor(s), the Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through judicial action. The parties agree that a court may issue an injunction or order requiring the Grantor(s) to restore the Property to its condition prior to the violation as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantor(s) shall reimburse the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to court costs, attorneys' fees, and any other costs incurred with onsite remediation. 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. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In the event that Grantee fails to enforce any of the terms of this Conservation Easement, as determined in the sole discretion of the Commissioner of Agriculture, the said Commissioner of Agriculture and his or her successors and assigns shall have the right to enforce the terms of the Conservation Easement through Wl Attachment E any and all authorities available under Federal or State law. In the event that Grantee attempts to terminate, transfer, or otherwise divest itself of any rights, title, or interests of this Conservation Easement without the prior consent of the Commissioner of Agriculture and payment of consideration to the State of North Carolina, then, at the option of the Commissioner of Agriculture, all right, title, and interest in this Conservation Easement shall become vested in the State of North Carolina. T. Amendment This Conservation Easement may be amended by a written instrument executed by the Grantee and the Grantor(s) and approved by the Commissioner of Agriculture. Any such amendment shall be consistent with the Statement of Purpose of this Conservation Easement and with the Grantee's Conservation Easement amendment policies, and shall comply with 26 U.S.C. §170(h) of the Internal Revenue Code or any regulations promulgated in accordance with that section. Any such amendment shall be duly recorded. Grantee shall give notice of any amendment to and secure approval from, the North Carolina Department of Agriculture and Consumer Services. U. Procedure in the Event of Condemnation or Eminent Domain Grantor(s) and Grantee recognize that the partial donation and partial sale of this Conservation Easement gives rise to a property right, immediately vested in the Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Property prior to the restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or eminent domain action shall be taken, on all or part of the Property, by any authorized public authority, said authority shall be liable to the Grantee for the value of the property right vested in the Grantee at the time of the signing of this Conservation Easement. If condemnation or a taking by eminent domain of a part of the Property or the entire Property by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Property, the Conservation Easement may be terminated or modified accordingly through condemnation proceedings. If the Conservation Easement is terminated or modified and any or all of the Property is sold or taken for public use, then, as required by Treas. Reg. 1.170A- 14(g)(6), the Grantee shall be entitled to the proportionate value of the Conservation Easement. The Grantee shall use its proceeds consistently with the general conservation purposes of this Conservation Easement. If this Conservation Easement is extinguished or terminated, the North Carolina Department of Agriculture and Consumer Services, and Grantee shall receive its proportional share of the Conservation Easement value at the time of termination. The proportional share of the Conservation Easement value is percent to the North Carolina Department of Agriculture and Consumer Services. The Grantee and the North Carolina Department of Agriculture and Consumer Services shall use its proceeds consistently with the general conservation purposes of this Conservation Easement. V. Procedure in the Event of Termination of Conservation Easement If it determines that conditions on or surrounding the Property 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 Grantor(s) and the Grantee and with prior consent of North Carolina Department of Agriculture and Consumer Services as provided herein, terminate or modify this Conservation Easement in accordance with applicable state law. If the Conservation Easement is terminated and the Property is sold then as required by Treas. Reg. 1.170A- 14(g)(6), the Grantee shall be entitled to an amount equal to the ratio of the appraised value of this Conservation Easement to the unrestricted fair market value of the Property, as these values are determined on the date of this Conservation Easement. The Grantee and the North Carolina Department of Agriculture and Consumer Services shall divide the resulting proceeds in 19 Attachment E accordance with the percentage of the purchase price of the Conservation Easement that each party contributed. The percentage is _ percent for the North Carolina Department of Agriculture and Consumer Services. The Grantee and the North Carolina Department of Agriculture and Consumer Services shall use its proceeds consistently with the general conservation purposes of this Conservation Easement. W. Subsequent Easements /Restrictions on the Property The grant of any easements or use restrictions that might diminish or impair the agricultural viability or productivity of the Property or otherwise diminish or impair the conservation values of the Property is prohibited. X. Subdivision The Property currently consists of single tract. The further subdivision of the Property, the recording of a subdivision plan, partition, or any other division of the Property, is prohibited. Y. Notices Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first -class mail to the Grantor(s) and the Grantee respectively at the following addresses, unless a party has been notified in writing by the other of a change of address: [Insert Grantor(s) and Grantee addresses] North Carolina Department of Agriculture and Consumer Services: NC ADFP Trust Fund 2 West Edenton Street Raleigh, NC 27601 APPROVED AS TO FORM Authorized Signatory for North Carolina Department of Agriculture and Consumer Services D. David Steinbock 20 AMENDMENT NO. 1 TO COOPERATIVE AGREEMENT NO. 73-4532-09-001 BETWEEN THE UNITED STATES OF AMERICA COMMODITY CREDIT CORPORATION ACTING THROUGH THE NATURAL RESOURCES CONSERVATION SERVICE and the Orange County, North Carolina for the FARM AND RANCH LANDS PROTECTION PROGRAM Cooperative Agreement Number 73- 4532 -09 -001 between the United States of America (the United States), acting by and through the United States Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS) on behalf of the Commodity Credit Corporation (CCC), and Orange County, North Carolina for the implementation of the Farm and Ranch Lands Protection Program (FRPP), originally made on the l la' day of August, 2009 is hereby amended on the day of , 2010 to add or change the following: IV. OBLIGATION OF FUNDS Change IV. To: Upon execution of this agreement, the United States shall obligate the sum of $ 172,000 in FY2010 funds for the acquisition by Orange County, North Carolina of conservation easements for the parcels listed on Attachment B. Fiscal Year Attachment with Associated Parcels Funds Obligated Fund Code 2009 A $327,383 69F 2010 B $172,000 69F 2011 C NA NA Fiscal Year of Fund Obligation Attachment with Associated Parcels Closing Deadline Payment Request Deadline Fund Disbursement Deadline 2009 A March 31, 2011 August 31, 2011 September 30, 2011 2010 B March 31, 2012 1 August 31, 2012 1 September 30, 2012 2011 C March 31, 2013 1 August 31, 2013 1 September 30, 2013 21 2. Add Attachment B - List of Pending Conservation Easement Offers on Which the Obligation of FY 2010 Funds is Based 3. All other terms, conditions, and provisions of the original agreement remain in force and effect and are hereby made a part of this agreement. IN WITNESS WHEREOF, the following authorized representatives of the United States and Orange County, North Carolina have executed this Cooperative Agreement. Orange County, North Carolina By: Valerie Foushee, Chair Orange County Board of Commissioners UNITED STATES OF AMERICA COMMODITY CREDIT CORPORATION By: State Conservationist 22 Attachment B List of Pending Conservation Easement Offers on Which the Obligation of FY 2010 Funds is Based Landowner's Name Acres Estimated Estimated Federal Contribution and Address Conservation to the Estimated Conservation Easement Easement Value (no greater Value than 50% of the Estimated Value) William H. Breeze, Sr. 153.3 $590,000 $172,000 Breeze Farm 2600 Croasdaile Farm Parkway Durham, NC 27705