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HomeMy WebLinkAboutORD-2012-002 Budget Amendment #5-C - Conservation Easement Dennis & Linda Brooks ORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: January. 24, 2012 Action Agenda Item No. g--G2 SUBJECT: Resolution of Approval —Conservation Easement for the Brooks Farm; and Approval of Budget Amendment#5-C DEPARTMENT: Environment, Agriculture, Parks . PUBLIC HEARING: (Y/N) No and Recreation (DEAPR) a ATTACHMENTS INFORMATION CONTACT: 1. Resolution of Approval David Stancil, 245-2510 2. Location Map Rich Shaw, 245-25.14 3. Site Map Gail Hughes, 245-2753 4. Draft Conservation Easement PURPOSE: To consider a resolution to approve the purchase of and acceptance by Orange County of an agricultural and watershed protection conservation easement for the Brooks farm; and approve Budget Amendment#5-C. BACKGROUND: The acquisition of conservation easements to protect highly important natural and cultural resource lands in Orange County is a longstanding goal of the Board of Commissioners, and is a priority of the Lands Legacy program. Since 2001, the County has partnered with landowners to protect 1,875 acres of prime farmland and riparian buffers with conservation easements. Over the past several months, DEAPR has worked with the Eno River Association and the Soil and Water Conservation District on a project to conserve highly significant land and water resources at the Brooks farm. The Brooks farm is located south of Ben Johnston Road west of Hillsborough (Cheeks Township). The farm is owned by Dennis and Linda Brooks, who raise beef cattle and operate the Rocking B Saddle Shop. The 114-acre farm is located in the critical area of Upper Eno Protected Watershed, a priority watershed for acquiring agricultural easements in a dual effort to protect prime farmland and drinking water quality. Sevenmile Creek and Rocky Run flow through the farm to the nearby Lake Ben Johnston Reservoir— a drinking water intake for the Town of Hillsborough. The Brooks intend to grant a permanent conservation easement that will restrict future development to protect prime farmland and protect scenic views from Ben Johnston Road. The easement would allow two future home sites in two-acre "residential envelopes". All other non-agricultural development rights will be extinguished through the conservation easement. Future farm activities will be in accordance with a Conservation Plan prepared for the farm by the Orange Soil & Water Conservation District. The planned "agricultural and watershed protection conservation easement" would be held jointly by Orange County and the Eno River Association. The easement would expand and complement assistance from the Orange Soil and Water Conservation District that will restore vegetative stream buffers, fence cattle from all streams, and provide an alternative source of water with separate funding from the NC Conservation Reserve Enhancement Program (CREP), the USDA Farm Services Agency, the Upper Neuse Clean Water Initiative, and the Town of Hillsborough. CREP will require there be a permanent riparian buffer easement held by the State of North Carolina. The two-pronged conservation project will eliminate a considerable source of nutrients from entering Sevenmile Creek and Hillsborough's water supply. It would also restore and protect 8,000 linear feet of stream buffers along Severimile Creek and Rocky Run. The planned agricultural and watershed protection conservation easement area is depicted on the attached site map. A draft deed of conservation easement is also provided. FINANCIAL IMPACT: The purchase price of the conservation easement is $655,000, which was determined by an appraisal of the fair market value by Kirkland and Associates. DEAPR has worked with the Eno River Association and other project partners to identify the following funding sources: Orange County (Lands Legacy) $ 312,928 Eno River Association (Healthy Forests Grant) 252,843 Upper Neuse Clean Water Initiative (City of Raleigh) 54,000 NC Conservation Reserve Enhancement Program 18,800 Town of Hillsborough 6,157 Landowner donation 10,272 $ 655,000 The total cost of the Brooks conservation easement is approximately $657,000, which includes transaction costs but excludes a $10,272 landowner donation. The County's share of the cost is approximately $325,0,00 — the $312,928_to purchase the -County's easement plus survey and closing costs. County funds would come from existing funds budgeted for the Lands Legacy program and previously appropriated. This project would exhaust the remaining $131,976 allocated for conservation easement purchases. The subject property is enrolled in the Present Use Value taxation program, so the acceptance of the conservation easement would not lessen the amount of property taxes paid to the County. The decrease in the property's market value caused by the conservation easement (and extinguishing of a portion of its development rights) would not lower the property value to a level that is less than present use value ($681,242). Budget Amendment #5-C provides for the receipt of $331,800 in grant and partner funding, and the use of existing County funds of $324,328 ($190,352 from the Lands Legacy Capital Project for Conservation Easements transferred to the Conservation Easements Capital Project), and $133,976 in available funds within the Conservation Easements Project. See amended Capital Project Ordinances below: 3 Lands Legacy(-$190,352) - Project#20011 Revenues for this project: Current FY FY 2011-12 FY 2011-12 2011-12 Amendment Revised Private Placement $851,472 $0 $851,472 From General Fund $995,452 $190,352 $805,100 Appropriated Fund Balance $9,337 $0 $9,337 Total Project Funding $1,856,261 $190,352 $1,665,909 Appropriated for this project: Current FY FY 2011-12 FY 2011-12 2011-12 Amendment Revised Lands Legacy Program $1,856,261 $190,352 $1,665,909 Total Costs $1,856,261 $190,352 $1,665,909 Conservation Easements ($522,152)—Project#20006 Revenues for this project: Current FY FY 2011-12 FY 2011-12 2011-12 Amendment Revised Private Placement $590,632 $0 $590,632 Grant Funds $571,480 $0 $571,480 Transfer from General Fund $12,944 $190,352 $203,296 Grant and Partner Funds $0 $331,800 $331,800 Total Project Funding $1,175,0 6 $622,1521 $1,697,208 Appropriated for this project: Current FY FY 2011-12 FY 2011-12 2011-12 Amendment Revised Volpe Easement $31,000 $0 $31,000 Brooks Easement $0 $656,128 $656,128 Breeze Farm Easement $487,480 $0 $487,480 Sykes Farm Easement $520,000 $0 $520,000 Moore-Stanford Easement $2,600 $0 $2,600 Unallocated $133,976 $(133,976) $0 Total Costs $1,175,056 $522,1521 $1,697,208 RECOMMENDATION(S): The Manager recommends that the Board adopt the resolution approving the acceptance by Change County of the conservation easement and authorize the Chair and the Clerk to sign the resolution and 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 February 28, 2012, and approve Budget Amendment#5-C. j''~~'S- ~G~~~ ~lJ ~'1 1-.z y- 20~~... ~~ ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural Conservation Easement between Orange County and the Eno River Association and Dennis and Linda Brooks WHEREAS, agriculture in Orange County is an important facet of the economy and time honored way of life in the County; and WHEREAS, Orange County has an adopted goal promoting the preservation of farmland in the County; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on prime farmland within water supply watersheds; and WHEREAS, the Brooks farm includes approximately 114 acres in the Upper Eno River protected watershed, consists of a majority of prime agricultural soils, and is located in an agricultural community with good access to farm markets; and WHEREAS, Orange County and the Eno River Association have agreed to collaborate on the joint acquisition of a conservation easement that will protect the prime farmland and riparian corridors that exist on the Brooks farm with a conservation easement; and WHEREAS, matching funds have been earmarked for this project from the Upper Neuse Clean Water Initiative, the Healthy Forests program, and the Town of Hillsborough to help purchase the agricultural and watershed protection conservation easement; and WHEREAS, a conservation easement on this approximately 114 acres would ensure the preservation of this farmland for future generations and help to compensate the owners for this long-term commitment; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the agricultural and watershed protection conservation easement to land owned by Dennis and Linda Brooks; 2) approve the execution of this conservation easement agreement with Dennis and Linda Brooks, 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 February 28, 2012; and 4) authorize County staff to sign any and all closing documents upon consultation with the County Attorney. This the 24th day of January, 2012. Don a aker, Clerk to the Board ~~~~t-L/~l'"x-' - ~ r Bernadette Pelissier, Chair Orange County Board of Commissioners ~ -~7 ~r /~ ~ ~Q~ If~i~i~2~~~I9j~11G~YdlI~~II~~IIIiIl~dIIIIII~IIII 0k2R6 3Z92P9 83PM ~~za ~~ FILED Deborah B. Brooks Register of Deeds, Orange Co,NC Recording Fee: $62.00 NC Real Estate TX: 51252.0~ This inshwnen± prepared by and return to: John L. Roberts, Office of the Orange County Attorney Box 8181, Hillsborough, NC 27278 Revenue Stamps: ~ ~ 98~'~ 9z8y9i NORTH CAROLINA 9 8„~ y 9'3 D~O '3 ~ COUNTY OF ORANGE WARRANTY DEED OF AGRICULTURAL AND WATERSHED PROTECTION CONSERVATION EASEMENT This Deed of Agricultural and Watershed Protection Conservation Easement (hereinafter "Conservation Easement") is granted on this ~~ay of (~p~rch , 2012, by DENNIS BROOKS and LINDA BROOKS, husband and wife, having an address of 1400 Ben Johnston Road, Hillsborough, NC 27278, (referred to as "Grantors"), to ORANGE COLTNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (referred to as"Grantee" or "Grantees") and the ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER VALLEY, INC. a North Cazolina Nonprofit Corporation, having an address of 4404 Guess Road, Durham, NC 27712, also known as the Eno River Association, (both together referred to herein as "Grantee" or "Grantees") The designation Grantors and Grantees as used herein shall include said parties, their respective heirs, successors and assigns, and shaIl include singular, plural, masculine, feminine or neutral pronouns as required by context. WHEREAS: Grantors are the sole owners in fee simple, of certain fann Property (hereinafter the "Property"), which consists of approximately 113.81 acres of land, located in Cheeks and Hillsborough Townships, Orange County, North Carolina and identified as Tract One and Tract Two (a portion of PIN 9854-93-0639 and PIN 9854-92-8491, respectively) on the plat of property titled "Conservation Easement Property Surveyed for Orange County and Eno River Association," prepared by Alois Callemyn, which plat is recorded at Plat Book l I ~, Page $`, Page 1 of 21 ~~~~~~~~~~i~lUUl~~~~~~~~~~~~~-~~~~~i~~~~~~-~ R85339 54 2l24 Orange County Registry), hereafter referred to as"the recorded Plat for this Conservation Easement." The Property includes buildings and other improvements, which aze shown on said plat and on Exhibit A, attached hereto and incorporated herein. The Property consists primarily of productive agricultural land. The vast majority of the soils on the Property are classified as"prime" or "statewide important" soils by the Natural Resources Conservation Service, United States Department of Agriculture (also referred to as "NRCS"). The property is bisected by streams known as Sevenmile Creek and Rocky Run, which flow generally eastward before entering the Eno River and Lake Ben Johnston, a public drinking water supply reservoir serving the Town of Hillsborough. The entire Property is located within the designated "critical area" of the Upper Eno Protected Watershed. The primary purposes of this Conservation Easement are to protect the agricultural soils and agricultural viability and productiviry of the Property, and to protect water quality of the surface waters in the watershed of the Lake Ben Johnston Reservoir and the Eno River. The Property also includes outstanding riparian and woodland habitats for a variety of wildlife species of importance to the Grantors and Grantees, the people of Orange County and the people of North Carolina. Furthermore, the Property contains outstanding scenic qualities that can be enjoyed by the general public, namely the views along Ben Johnston Road (State Road 1144) and Dimmocks Mill Road (State Road 1134). It is a secondary purpose of this Conservation Easement to protect these natural and scenic resources. The agricultural resources of the Property, and its contribution to the protection of prime farmland soils, a public water supply, natural and wildlife habitat, and the other conservation interests described herein to be preserved by this Conservation Easement are collectively referred to as the "Conservation Values" of the Property. The specific Conservation Values of the Property and its current use and state of improvement are described in a Baseline Documentation Report ("Report") prepared by the Grantees with the cooperation of the Grantors, and acknowledged by both parties to be accurate as of the date of this Conservation Easement. This Report may be used by the Grantees to document any future changes in the use or character of the Property in order to ensure the terms and conditions of this Conservation Easement aze fulfilled. The Report, however, 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 Grantors and Grantees have copies of this Report, and said report will remain on file at the offices of the Orange County Department of Environment, Agriculture, Parks and Recreation and the Eno River Association. The Grantors and Grantees agree that the current agricultural use of, and improvements to, the Property are consistent with the conservation purposes of this Conservation Easement. The Grantors intend that the Conservation Values of the Property be preserved and maintained, and fwther, Grantors intend to convey to the Grantees the right to preserve and protect the agricultural and other Conservation Values of the Property in perpetuity. Page 2 of 21 ~~~~~~~~~~~~1~~1~~~11~~~~~~~~-~~~~~~~~~~~~~i~ RB5339 55 3/24 The conservation purposes of this Conservation Easement aze recognized by, and the grant of this Conservation Easement will serve, the following clearly delineated govemmental conservation policies: (1) Sections 1238 H and 1238 I of the Food Security Act of 1985, as amended, which authorizes the Farm and Ranch Lands Protection Program, administered through the United States Department of Agriculture, Natural Resources Conservation Service, which provides funds for the acquisition of Conservation Easements or other interests in prime, unique, or other productive soils for the purpose of limiting conversion to nonagricultural uses of the land; (2) North Carolina General Statute 139-2 et seq., which provides that "it is hereby declared ...that the farm, forest and grazing lands of the State of North Carolina are among the basic assets of the State and the preservation of these lands is necessary to protect and promote the health, safety and general welfaze of its people... it is hereby declared to be the policy of the legislature to provide for the conservation of the soil and resources of this State;" (3) North Carolina General Statute 106-583 et seq., which states that "It is declazed to be the policy of the State of North Carolina to promote the efficient production and utilization of the products of the soil as essential to the health and welfare of our people and to promote a sound and prosperous agriculture and rural life as indispensable to the maintenance of maximum prosperity;" (4) The Uniform North Carolina Conservation and Historic Preservation Agreements Act, North Cazolina General Statute 121-34 et seq., which provides that conservation agreements are "interests in land" which may be effective "perpetually;" 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;" (5) The establishment of the North Carolina Agricultural Development and Farmland Preservation Trust Fund established in 1986 (N.C.G.S. 106-744(c) as amended) to preserve important farmland in North Cazolina; (6) The North Carolina Conservation Tax Credit Program, North Cazolina General Statute 105-130.34 and 105-151.12 etseq., which provides for state income ta~c credits for donations of land that are useful for fish and wildlife conservation and other similaz land conservation purposes; (7) the Clean Water Management Trust Fund, authorized by NCGS § 113A-251 et seg., which finances projects to acquire land and interests in land, including conservation easements for the purposes of providing environmenta] protection for surface waters and urban drinking water supplies; Page 3 of 21 -~~~~~~~~-~~Ul-l~~ll~i~~~~~~~-~--~~~~~»~~~~u R85339 56 4/24 (8) the Soil and Water Conservation Districts Act, authorized by NCGS § 139-1, et seq., which provides for the preservation of fatm, forest and grazing lands; (9) the special use assessment of farm and forestland as set forth in NCGS § 105-277.2 et seq., which allows for lower property tax rates for land enrolled in active agricultural uses; (10) 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." (11) The Orange County Agricultural Development and Farmland Protection Plan, adopted November 17, 2009, which recommends that the County acquire agricultural conservation easements to help protect farmland as a valuable natural resources; and (12) The zoning of the Property by Orange County as Agriculturat Residential and Upper Eno River Protected Watershed Overlay District, the latter to protect the public water supply watershed of the Lake Ben Johnston Reservoir. Grantors and Grantees have the common purpose of protecting the above-described Conservation Values and current condition of the Property and preventing conversion of the Property to nonagricultural uses. Grantors agree to create and implement a conservation plan (hereinafter the "Conservation Plan") that is developed utilizing the standards and specification of the NRCS field office technical guide and 7 CFR part 12, as well as other commonly- recognized best management practices, and is approved by the Orange County Soil and Water Conservation District; Orange County, one of the parties Grantee, is a body politic existing under Chapter 153A of the North Carolina General Statutes, and is qualified to hold conservation easements under the applicable laws of the State of North Carolina; The Association for the Preservation of the Eno River Valley, Inc. (hereinafter Eno River Association), one of the parties Grantee, is a nonprofit corporation organized and existing under the laws of the state of North Carolina and tax exempt under Section 501(c)(3) of the Internal Revenue Code, operated primarily for conservation purposes, including protection of environmentally valuable and sensitive land for charitable, scientific, educational, and aesthetic purposes. The Eno River Association is authorized by the laws of the State of North Cazolina to accept, hold and administer interests in land including conservation easements. The Grantees are willing to accept this Conservation Easement under the terms and conditions hereinafter described, and is a"qualified organization" and "eligible donee" within the meaning of Section 170(h)(3) of the Internal Revenue Code and regulations promulgated there under.) NOW, THEREFORE, for the reasons given and other good and valuable consideration, and in consideration of the mutual covenants, terms, conditions and restrictions contained herein, Page 4 of 21 ~~U1~~~-~~l~Ul~~~~l~~iii~~~i ~ iiii~ifi~ii ii i~i R85339 57 6l24 the Grantors hereby grant and convey unto Grantees a Conservation Easement, of the nature and character and to the extent hereinafter set forth, in respect to the Property; forth: The terms, conditions and restrictions of the Conservation Easement are as hereinafter set Grant of Conservation Easement; Extinguishment of Development Rights; Grant of Easement for Access Grantors hereby voluntarily grant and convey to the Grantees, and the Grantees hereby voluntarily accept, a perpetual Conservation Easement in the Property, which easement is an immediately vested interest in real property the nature and character described herein. Grantors promise that they will not perform, nor knowingly allow others to perform, any act on or affecting the Properiy that is inconsistent with the covenants herein. Grantors authorize the Grantees to enforce these covenants in the manner described below. Grantors hereby voluntarily grant and convey to the Grantees all development rights for the Property, except as otherwise reserved and provided by the terms of this Conservation Easement, that aze now or hereafter inherent in the Property. The parties agree that such development rights are now ternunated and extinguished, and may not be used on or transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Properiy or any other property by anyone or any entity, including the Grantees. Further, Grantors hereby voluntarily grant and convey to the Grantees a non-exclusive perpetual right and easement for ingress, egress and regress between the Property and Ben Johnston Road (SR 1144) over and across that road or driveway shown as a"GRAVEL DRNE" on that plat of survey by Alois Callemyn entitled "Recombination Property Surveyed for Dennis & Linda Brooks" recorded in Plat Book 109, Page 176, Orange County Registry, as the said road or driveway exists on the ground at the time that this Conservation Easement is recorded and as said drive may be relocated from time to time. Notwithstanding the foregoing, nothing in this grant of easement for access to the Property shall be construed to in any way limit Grantees' access to the Property for the purposes of exercising their rights and obligations under the terms of this Conservation Easement should said road or driveway hereafter cease to exist. 2. Statement of Purpose The primary purposes of this Conservation Easement are to enable the Property to remain in agricultural use by preserving and protecting its agricultural soils and agricultural viability and productivity, and to protect the wetlands, riparian areas and surface waters associated with the streams tributary to the Lake Ben Johnston Reservoir and Eno River from the risk of adverse innpacts azising from use or development of the Property contrary to the provisions of this Conservation Easement. Except as specifically permitted herein, no activity that would impair the actual or potential agricultural use of the Property shall be pernutted. Likewise, any activity that would risk causing adverse impact to any stream tributary to .the Lake Ben Johnston Reservoir or the Eno River is prohibited. To the extent that the preservation and protection of the Page 5 of 21 i-~~J~~~~~~-11~~1~l~~11~~~~i~~~ ~ -~~~~~~~~~~~~ ~n RB5339 58 6124 other natural, historic, recreational, habitat, or scenic values referenced in this Conservation Easement are consistent with the primary purposes stated above, it is within the purpose of this Conservation Easement to also protect those values, and no activity that would significantly impair those values shall be permitted. As authorized in the Uniform Conservation and Historic Preservation Act, N.C. Gen. Stat. § 121-34 et seq., this Conservation Easement is perpetual; it restricts the Grantors' Property in perpetuity; and it is enforceable by the Grantees against the Grantors, its representatives, heirs, successors and assigns, lessees, agents, and licensees. 3. Rights and Responsibilities Retained by Grantors Notwithstanding any provisions of this Conservation Easement to the contrary, the Grantors reserve to and for themselves and their successors all customary rights and privileges of ownership, including the rights to sell, lease, and devise the Property provided such transaction is subject to the terms of this Conservation Easement and written notice is provided to the Grantees, together with any rights not specifically prohibited by or limited by this Conservation Easement, and consistent with this Conservation Easement. Unless otherwise specified below, nothing in this Conservation Easement sha11 require the Grantors to talce any action to restore the condition of the Properly after any natural disaster or other event over which he had no control. Grantors understand that nothing in this Deed relieves them of any obligation or restriction on the use of the Property imposed by law. 4. Right to Farm Grantors retain the right to farm, or to permit others to farm the Property, consistent with the Conservation Values of the Properry and in accordance with applicable local, state and federal laws and regulations. Subject to the terms of this Conservation Easement, fanning, grazing, horticultural and animal husbandry operations are permitted only if conducted consistent with Best Management Practices promulgated by the Sta.te of North Carolina and in conformity with a Conservation Plan as required in Paragraph 9 of this Conservation Easement, which Conservation Plan is hereinafter referred to as "the Conservation Plan." Cattle and other livestock are allowed to exist and to graze on the Property, except within the "Riparian Corridor" identified and mazked on the recorded Plat for this Conservation Easement and on Exhibit A, the original of which witl be included in the Baseline Documentation Report. The "Riparian Comdor" includes, but is not limited to, an area subject to a conservation easement held by the State of North Carolina through the NC Conservation Reserve Enhancement Program recorded at Deed Book533q , Page I B , Orange County Registry (hereinafter, the CREP Conservation Easement). The "Riparian Corridor" shall be maintained in its natural condition and restricted from any development that would impair or interfere with the Conservation Values of the Property. Page 6 of 21 ~~~~~-~U~~-~1U~~~~~ll~~~~~h~~~---~-~-~~~~u RB5339 59 7/24 The entire Riparian Corridor shall be subject to the prolubitions and restrictions on use and activity within its boundaries as are spelled out and contained in Section II of the aforesaid CREP Conservation Easement recoded in Deed Book 5~j3~1 , Page 1~ , to the same extent as if those prohibitions and restrictions were set out herein, and the same are hereby incorporated herein by reference. S. Right to Privacy Grantors retain the right to privacy and the right to exclude any member of the public from trespassing on the Property. This Conservation Easement does not create any rights of the public in, on or to the Property. 6. Right to Use the Property for Customary Rural Enterprises Grantors retain the right to use the portion of the Property within the "Fannstead Area" (which contains 7.45 acres) as identified on the recorded Plat for this Conservation Easement, and more particularly described in the Baseline Documentation Report, for otherwise lawful and customary rural enterprises, such as, but not limited to, farm machinery repair, sawmill, firewood distribution, bed and breakfast, farm stand, or educational programs so long as such activities are a) consistent with Orange County zoning regulations and permits required by and issued by Orange County under its laws and ordinances as they exist now and as they may be amended from time to time, and b) are conducted in buildings otherwise pernutted under this Conservation Easement in a manner that is consistent with the conservation purposes of this Conservation Easement, and c) aze subordinate to the agricultural and residential use of the Property. Conducting customary rural enterprises on any other part of the Property is not permitted without the advance written permission of the Grantees in each instance. Grantees shall not give such permission unless the Grantees determine that the proposed use will not diminish or impair the Conservation Values of the Property. The parties expressly agree that enterprises that market petroleum or chemical products are prohibited, and that commercial feed lots for cattle or other meat animals aze also prohibited. Procedure to Construct Buildings and Other Improvements The Grantors' rights to construct or reconstruct buildings and other improvements are described in subparagraphs (a) through (~ below. Any construction or reconstruction not permitted below is prohibited. Before undertaking any construction or reconstruction that requires advance permission, the Grantors shall notify the Grantees and obtain written permission. All construction or reconstruction is subject to Orange County zoning regulations and must be consistent with permits required by and issued by Orange County under its laws and ordinances as they exist now and as they may be amended from time to time for such construction activities. (a) Fences - Existing fences may be repaired and replaced, and new fences may be built on the Property for purposes of reasonable and customary management of livestock and Page 7 of 21 ~i~~l~~U~~~luUl~~~~l~~~~-~~~--~~~~-~~~~~ ~« ~~- RB5339 60 8l24 wildlife or to fence off the perimeter of the Property or the perimeter of the Riparian Corridor without any further permission of the Grantees. (b) Structures & Improvements - There are several structures existing on the Property as of the date of this Agricultural Conservation Easement, as shown on Exhibit A. Existing structures, including agricultural structures and existing improvements, may be repaired, . reasonably enlarged and replaced at their current locations within the "Farmstead Area," as shown on the recorded plat for this Conservation Easement and on Exhibit A, without further permission from the Grantees. New buildings, including barns, sheds and other structures and improvements to be used primarily for agricultural purposes (including the processing or sale of farm products predominantly grown or raised on the Property) may be built on the Property without any further permission of the Grantees provided they are located in the "Farmstead Area," as shown on Exhibit A and the recorded plat for the Conservation Easement. Any new buildings, structures or improvements proposed for locations outside the "Farmstead Area" shall be for agricultural purposes only and may be built only with the advance written permission of the Grantees. The Grantees shall not give such pernussion unless they determine that the proposed building, structure or improvement would not diminish or impair the Conservation Values of the Property or otherwise be inconsistent with this Conservation Easement. (c) Single-Family Residential Dwellings - One residential dwelling exists on the Property within the "Farmstead Area" identified on Exhibit A. All appurtenant structures and facilities such as garages, sheds, and septic systems for this existing residential dwelling shall be contained within the "Farmstead Area." Two (2), but not more than two, additional single-family residential dwellings, together with reasonable appurtenant structures, such as garages, sheds; and septic systems may be built on the Property, each within a two-acre "Residential Envelope" located within the areas identified as "Potential Future Home Site Area" on Exhibit A and outside of the "Riparian Corridor." At the time construction of each such dwelling and such appurtenant structures is to commence, Grantees shall be notified of the location of the designated "Residential Envelope" so that its records can be updated. Nothing about Orange County's participation in or the signing of this Deed of Easement constitutes zoning or subdivision approval or the permitting of these residential dwellings and their appurtenant structures. (d) Recreational Improvements - Grantors expressly reserve the right to engage in low impact, non-developed recreational activities requiring no surface alteration of the land and posing no threat to the Conservation Values set herein such as hunting, fishing, hiking and bird watching, and to control access of all persons for these purposes; provided that these activities do not impact the protection and conservation of any animal habitat or othef Conservation Values of the Property. However, under no circumstances shall golf courses, golf ranges, airstrips or helicopter pads be constructed, placed or pernutted to remain on the Property. Nothing about Orange County's participation in or the signing of this Deed of Easement constitutes zoning or the permitting of these recreational improvements and their appurtenant structures. Page 8 of 21 ~~~~~~~~~~~~~UUI~I~~II~~~~~~n~~~i~~~u-~-~ui RB5339 61 9~2~ (e) Utility Services and Septic Systems - Installation, maintenance, repair, replacement, removal and relocation of electric, gas, and water facilities, septic systems, sewer lines and/or other public or private utilities, including telephone or other communication services over or under the Property for the purpose of providing electrical, gas, water, sewer, or other utilities to serve improvements on the Property permitted herein, and the right to grant easements over and under the Property for such purposes, is permitted except within the "Riparian Corridor" identified and marked on the recorded plat for the Conservation Easement and on Exhibit A; provided that Grantors shall not permit or grant easements for utility transmission or distribution facilities or systems without the written consent of the Grantees. Maintenance, repau or improvement of a septic system(s) or oiher underground sanitary system that exists on the Property at the time of this Conservation Easement, or the construction of a septic or other underground sanitary system, for the benefit of any of the improvements permitted herein and if necessary to serve the existing (or replacement) residential or commercial uses located immediately adjacent to the Properiy on the property identified as Orange County PIN 9854-84- 7637, is permitted except within the "R.ipazian Corridor" identified and marked on the recorded plat for this Conservation Easement and on Exhibit A. All other utilities are prohibited on the Properly. Cellular communication towers or structures are prohibited on the Property. 8. Subdivision T'he Properiy currently consists of all or a portion of two separate pazcels of land identified as Tract One and Tract Two on the recorded Plat for this Conservation Easement. Hereafter, the Property may be recombined and/or subdivided, provided that at no time shall the Property consist of more than three (3) separate tracts of land. The further subdivision of the Property, the recording of a subdivision plan, partition, or any other division of the Property into more than three tracts is prohibited. tn any event, all terms, restrictions, and conditions of this Conservation Easement shall apply to all recombined and/or subdivided parts of the Property including but not limited to the requirements of agricultural viability of the Property, the restrictions on future development, the necessity of a Conservation Plan, and the prohibition on activities that are described in this Conservation Easement. It is understood that notice of this Conservation Easement will be included in any instrument recorded that recombines, subdivides, partitions or otherwise divides the Property. Notwithstanding the foregoing, in the event that any tract which is two (2) acres in size or smaller is hereafter subdivided from the Property in accordance with the terms of this Conservation Easement and such tract is located entirely outside the boundaries of the Riparian Corridor shown on the recorded plat for the Conservation Easement and on Exhibit A, the terms, restrictions and provisions of this Conservation Easement shall no longer apply to said two-acre (or smaller) tract. Thereafter, however, such tract shall at no time in the future be recombined with the Property, and for each such two-acre (or smaller) tract that is subdivided from the Property the total number of separate tracts of which the Property may consist shall be reduced by one. For example, if one two-acre tract is subdivided fram the Property, the Property shall thereafter consist of no more than two (2) separate tracts of land. If two two-acre tracts are subdivided from the Property that Property shall thereafter consist of only one tract of land, and Page 9 of 21 ~~~U~i~~~~~11~01~~~11~~~~i~~~~~~~--f~u~-~~-~~ R85339 52 1~f24 any additional tracts existing at that time must be recombined into a single tract. Thereafter the Property may not be subdivided, partitioned or divided in any way for any purpose whatsoever. 9. Conservation Practices All agricultural operations on the Property sha11 be conducted in a manner consistent with a Conservation Plan prepared in consultation with NRCS and approved by the Orange County Soil and Water Conservation District. This Conservation Plan shall be developed using the standards and specifications of the NRCS Field O~ce Technical Guide and 7 CFR Part 12 that are in effect on the date of execution of this Conservation Easement. The Grantors may, however, develop and implement a Conservation Plan that proposes a higher level of conservation and is consistent with the NRCS Field Office Technical Guide standards and specifications. Copies of the Conservation Plan shall be kept on file in the office of the Orange Soil and Water Conservation District and Grantors and shall be provided to the Grantees. The Conservation Plan may be updated from time to time by mutual agreement of the NRCS and the Grantors. NRCS and the Grantees shall have the right to enter upon the Property, with advance notice to the Grantors, in order to monitor compliance with the Conservation Plan. In the event of noncompliance with the Conservation Plan, NRCS and the Grantees shall work with the Grantors to explore methods of compliance. Grantors shall be given a reasonable amount of time, not to exceed twelve months, to take conective action. If the Grantors do not comply with the Conservation Plan, NRCS will inform the Grantees of the Grantors' non- compliance. Following receipt of written notification from NRCS that (a) there is a substantial, ongoing event or circumstance of non-compliance with the Conservation Plan, (b) NRCS has worked with the Grantors to correct such noncompliance, and (c) Grantors have exhausted their appeal rights under applicable NRCS regulations the Grantees shall take all reasonable steps (including efforts at securing voluntary compliance and, if necessary, appropriate legal action) to secure compliance with the Conservation Plan. Notwithstanding the foregoing, in the event that the Grantees reasonably believe that there is a substantial, ongoing event or circumstance of non- compliance with the Conservation Plan despite efforts to work with the Grantors to correct such non-compliance, Grantees may proceed to take all reasonable steps to secure compliance. 1 D. Forest Management Within the entire "Riparian Corridor" described in Paragraph 4 of this Conservation Easement, forest management practices shall be in accordance with the consistent with the Conservation Easement to be held by the State of North Carolina through the NC Conservation Reserve Enhancement Program and recorded at Deed Book533`~, Page ~8 , Orange County Registry. Outside of the Riparian Corridor, trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, to remove non- native species, for construction of permitted improvements and fences on the Property, and commercial harvesting so long as done in accordance with the provisions of this Conservation Easement and the Conservation Plan referenced in Paragraph 9 of this Conservation Easement, Page 10 of 21 ~t~~~~~~~~l~t~~~llH~~~-~~i~~~~~~~~~~~-~~i RB5339 63 71l24 and in accordance with a Forest Stewazdship Plan prepared by a professional licensed forester, and approved by the Grantees, which approval shall not be unreasonably withheld. The Forest Stewardship Plan may be updated from time to time by mutual agreement of Grantors and Grantees. Copies of the Forest Stewardship Plan shall be kept on file in the office of the local Soil and Water Conservation District and shall be provided to the Grantees. Trees may be planted, harvested and removed within the area identified and mazked as "Farmstead Area" on the recorded plat for the Conservation Easement and on Ex~ibit A and in each of the two (2) two-acre future "Residential Envelopes" once their locations have been designated, all without the advance written permission of the Grantees, so long as done in accordance with the Conservation Plan and Forest Stewardship Plan referred to in this Paragraph 10. 11. Mining There shall be no filling, excavation, dredging, mining or drilling, 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 normal and customary farming operations in accordance with the Conservation Plan or combating erosion or flooding in accordance with the Conservation Plan and as reasonably necessary for any maintenance, construction or reconstruction on the Property permitted herein. Disturbed azeas for the purpose of removing soil, gravel, rock, peat, minerals or other materials necessary for pernutted customary agricultural uses on the Property will be limited to one acre in total surface area and will be restored as soon as practicable after the disturbance. Under no circurnstances is the drilling for or exploration for hydrocarbons permitted in, under, on or to the Property. 12. Road Construction Construction and maintenance of fazm roads that may be reasonably necessary and incidental to carrying out the improvements and uses permitted on the Properly by this Conservation Easement aze permitted. With the exception of roads within the azeas identified as "Farmstead Area" on the recorded plat for the Conservation Easement and on Exhibit A, no roads constructed on the Property shall be paved or otherwise covered with concrete, asphalt, rock, gravel or any other impervious material, without the advance written permission of the Grantees. Grantees shall not give such permission unless the Grantees determine that the proposed paving, or covering of the soil, or the location of any such road, will not diminish or impair the Conservation Values of the Property. 13. Dumping and Trash Dumping or storage of soil, trash, refuse, debris, ashes, garbage, waste, abandoned vehicles or parts, appliances, machinery, or hazardous substances, or toxic or hazardous waste, or any placement of underground or above ground storage tanks or other materials is prohibited. Provided, however, that the storage of agricultural products, byproducts (including the composting of biodegradable material for on-farm use) and agricultural equipment used on the Page 11 of 21 ~~~~1I~~~~~~~1~1~1~~i~~~~~~~~~~~~~-~~~~~~~H~~ RB5339 64 12/24 Property is allowable, so long as such storage is done outside the Riparian Comdor and 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. 14. Water Rights Grantors shall retain and reserve the right, consistent with federal, State and local laws and regulations, to use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property. Grantors shall not transfer, encumber, lease, sell or otherwise separate such water rights from title to the Property itself. 1 S. Natural Resource Restoration and Enhancement Activities Notwithstanding any terms contained within this Conservation Easement, Grantors may engage or contract others to engage in any activity designed to repair, restore, or otherwise enhance the natural resources found or once present on the Property, that are consistent with the Conservation Values of this Conservation Easement and subject to the written approval of the Grantees and the Natural Resources Conservation Service. 16. Signs No new signs shall be permitted on the Property except interpretive signs describing activities and Conservation Values of the Property, signs identifying the owner of the Property and the holder of the Conservation Easement, and signs giving directions or proscribing rules and regulations for the use of the Property. All signs permitted on the Property shall conform to applicable Orange County zoning, subdivision and building code regulations. 17. Ongoing Responsibilities of Grantors and Grantees Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantees, or in any way to affect any existing obligation of the Grantors as owners of the Property. Among other things, this shall apply to: (a) Taxes - The Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If the Grantees aze ever required to pay any taxes or assessments on its interest in the Property, the Grantors will reimburse the Grantees for the same. (b) Upkeep and Maintenance - The Grantors retain all responsibilities and sha11 beaz all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Property, including maintenance of all fencing and other structures and facilities necessary to comply with the terms and conditions of this Conservation Easement and the maintenance of adequaxe comprehensive general liability insurance coverage. Grantees shall have no obligation for the upkeep or maintenance of the Property. Grantors will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Property. Page 12 of 2 i ~~~~~1~~~~~~l~l~~~llf~~~~~~~~~~»»~~--~~~~~ RB5339 65 13/24 (c) Liability and Indemnification - Grantors agree to indemnify and hold the Grantees harmless from any and all costs, claims or.liability, including but not limited to reasonable attorneys' fees, arising from (i) any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof; (ii) any violation of any federal, state or local environmental or land use law or regulation or the use of or presence of hazardous substances, waste or other regulated materials in, on or under the Property; and (iii) Grantees exercise of its rights of entry pursuant to this Conservation Easement; provided, however that if such costs, claims or liability are due in whole or in part to the negligence of the Grantees or its agents, contractors or employees, liability shall be apportioned accordingly. In addition, Grantors agree to maintain liability insurance covering the Property with minimum coverage as follows: (i) $300,000 per person for personal injury or death, $300,000 per occurrence, and (ii) $300,000 per occurrence for property damage; and warrant that the Grantees are and will remain a named insured on Grantors' property insurance policies covering the Property. Grantors shall provide Grantees with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. Grantors sha11 indemnify and hold hannless the Grantees, its employees, agents, and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attomeys' fees and attorneys' fees on appeal) to which the Grantees may be subject or incur relating to the Property, which may arise from, but are not limited to, Grantors' negligent acts or omissions or Grantors' breach of any representation, warranty, covenant, agreements contained in this Conservation Easement Deed, or violations of any Federal, State, or local laws, including all Environtnental Laws. 18. Enforcement With reasonable advance notice to the Grantors or with the Grantors' prior verbal consent, Grantees shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement. Grantees shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of the Property, Grantees shall give the Grantors written notice of the violation and thirty (30) days to cure the violation, before commencing any legal proceedings. Grantees may obtain an injunction to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring Grantors 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, Grantors shall reimburse Grantees for all its expenses incurred in stopping and correcting the Page 13 of 21 v~~~~~~~~-~lU~l~~~~l~~~~~~i~~~~i~~~«~~tu ~~~~ RB5339 66 14/24 violation, including but not limited to reasonable attomeys' fees. 'The failure of the Grantees to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. In any case where the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney's fee to the prevailing party as provided by applicable law. 19. Transfer of Conservation Easement Either of the Grantees shall have the right to transfer, assign, convey, or otherwise to co- hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under Section 170(h) of the U.S. Intemal 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 Grantees by this Deed. If both Grantees ever cease to exist or no longer qualify 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. 20. Transfer of Property The Grantors 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. Grantors shall notify the Grantees in writing at least thirty (30) days before conveying the Properiy, or any part thereof or interest therein. Failure of Grantors to incorporate by reference the terms of this Conservation Easement in an instrument of transfer or conveyance or to notify the Grantees of a transfer or conveyance shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 21. Amendment of Conservation Easement This Conservation Easement may be amended only with the written consent of the Grantees and Crrantors. Any such amendment shall be consistent with the Statement of Purposes of this Conservation Easement and with the Grantees Conservation Easement amendment policies, and shall comply with Section 170(h) of the Internal Revenue Code or any regulations promulgated in accordance with that section. Any such amendment shall be duly recorded. 22. 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 Grantors and Grantees, terminate or modify the Conservation Easement created by this Deed in accordance with applicable law. If the Conservation Easement is terminated and the Property is sold, then as required by Section l.l 70A-14(g)(6) of the IRS regulations, the Grantees shall be entitled to fifty-three percent (53%) of Page 14 of 21 --~U~~~~~~~~Udl~~~l1w~~-~~~~ ~ ~~~~~~~~~~~~~ ~-- RB5339 6~ 15124 the net proceeds attributable to the sale of land (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), subject to any applicable law which expressly provides for a different disposition of the proceeds. The Grantees shall divide the resulting proceeds in accordance with the percentage of the purchase price of the Conservation Easement that each party contributed. The percentages are 50% for Orange County and 50% for the Eno River Association. All termination related expenses incurred by the Grantors and Grantees shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 23. Procedure in the Event of Condemnation or Eminent Domain Grantors and Grantees recognize that the sale of this Conservation Easement gives rise to a property right, immediately vested in the Grantees, 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 Grantees for the value of the properiy right vested in the Grantees 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. Grantors and Grantees agree that the Conservation Easement is a currently vested real property right with a value equal to the proportionate value the Conservation Easement has to the unencumbered value of the fee, as of the date of this grant. 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 Section I.170A-14(g)(6) of the IRS regulations, Grantees shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at fifty-three percent (53%) of the Property's unrestricted land value (exclusive of improvements), subject to any applicable law which expressly requires for a different disposition of the proceeds. If this Conservation Easement is terminated or modified by condemnation action or eminent domain, Grantees shall share, 50% to Orange County and 50% to the Eno River Association, the Grantees proportional value of the Conservation Easement. All condemnation-related expenses incurred by the Grantors and Grantees shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. Page 15 of 21 ~~~1~~0~~11~U1~1~~~1--~~~~~~~~~--~~-~~~~~~~~- RB5339 68 76/24 24. Interpretation This Conservation Easement shall be interpreted under the laws of the State of North Carolina and the laws of the United 5tates, resolving any ambiguities and questions of the validity of specific provisions so as to give maximum effect to its conservation purposes. 25. Perpetual Duration; Severability The Conservation Easement created by this Deed shall be a servitude running with the iand in perpetuity. Every provision of this Deed that applies to the Grantors or Grantees shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear. 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 sha11 remain in full force and effect. 26. Merger The Parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interests in the Property. 27. Notices Any notices required by this Deed shall be in writing and shall be personally delivered or sent by first class mail to the Grantors and Grantees respectively at the following addresses, unless a party has been notified in writing by the other of a change of address: To the Grantors: Dennis and Linda Brooks 1400 Ben Johnston Road Hillsborough, NC 27278 To the Grantees: Orange County Dept. of Environment, Agriculture, Parks and Recreation PO Box 8181 Hillsborough, NC 27278 AND Eno River Association 4404 Guess Road Durham, NC 27712 28. Grantors' Title Warranry The Grantors warrant that they hold fee simple title to the Property, free from all encumbrances and exceptions to title, except for those exceptions deemed by the Grantees as acceptable and set further in Exhibit B to this Conservation Easement, and hereby promises to defend the same against all claims that may be made against it. Page 16 of 21 ~~~~~~~~~~~~IUUI~I~~~l~~~~~~~~~~~~~~~~~~~~~~~~~ 29. Subsequent Liens on the Property RB5339 69 17124 No provisions of this Conservation Easement should be construed as impairing the ability of Grantors to use the Property as collateral for subsequent borrowing. Any such liens shall be and remain subordinate to this Conservation Easement. 30. 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. Any such easements or restrictions shall be subordina.ted to this Conservation Easement. 31. Grantors ' Environmental Warranly Grantors warrant that Grantors are in compliance with, and shall remain in compliance with, all applicable Environmental Laws. Grantors warrant that there are no notices by any governmental authority of any violation or alleged violation of, non-compliance or alleged non- compliance with or any liability under any Environmental Law relating to the operations or conditions of the Property. Grantors further warrant that Grantors have no actual knowledge of a release or threatened reiease of any Hazardous Materials, as such substances and wastes are defined by applicable federal and state law. Moreover, Grantors hereby promise to hold harmless and indemnify the Grantees against all litigation, claims, demands, penalties and damages, including reasonable attorney fees, arising from or connected with the release or threatened release of any Hazardous' Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantors or any other prior owner of the Property. Grantors' indemnification obligation shall not be affected by any authorizations provided by the Grantees to Grantors with respect to the Property or any restoration activities carried out by the Grantees at the Property; provided, however, that the Grantees sha11 be responsible for any Hazardous Materials contributed by the Grantees to the Property after the date of this Deed of Conservation Easement. "Environmental Law" or "Environmental Laws" means any and all Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) conceming air, water, solid waste, hazardous materials, worker and community right-to-know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect. "Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, Page 17 of 21 ~~~~~~~~~l~l~l~~~l~~~~~~~~ ~ ~~~~~~~i~~~-~ ~~~ RB5339 7~ 18/24 hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials and any other element, compound, mixture, solution or substance which may pose a present or potential hazard to human health or the environment. 32. Entire Agreement This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, and understandings or agreements relating to the said easement. 33. Recording Clause Grantees shall record this instrument and any amendment hereto in timely fashion with the Office of the Register of Deeds of Orange County, North Carolina, and may re-record it at any time as may be required to preserve its rights under this Conservation Easement. TO HAVE AND TO HOLD this Deed of Conservation Easement unto Grantees, its successors and assigns, forever. [THIS SPACE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGE TO FOLLOW] Page 18 of 21 ~i~~~~~~~~i~lUUl~~~~l~~~~~~~~ ~ ~~~~~u~~~ ~- ~ ~~~ 9,24 IN WITNESS WHEREOF, the Grantors and Grantees, intending to legally bind themselves, have set their hands on the date first written above. GRANTORS: ~ Dennis Brooks _s2~~ ~~--- Linda Brooks Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA BY: ~-~-~-~-~ ~~ Bernadette Pelissier, Chair Orange County Board of Commissioners ATTEST: BY~ _ ~ ~L~L'w-CJ /c~ Donna S. Baker, Clerk to the Board of Commissioners ASSOCIATION FOR THE PRESERVATION OF THE ENO RNER VALLEY, INC. By: Milo Pyne, President ATTEST: By. Bercedis Peterson, Secretary -,.- .•-•..,~..~ -; . t~ ' ~~ .. ~.':~rr ~ .• • ~ ,t : ~ 4J~ ~+ ~; ~ ~ :. :v~ `~ "'~ ~~,;,, .._ ,,~~: c ~ : ~ ...,• ~~ ~f•y~/ K~L ~~'•~....,,,... Page 19 of 2 [ ~~~~~-~~~~~11UU1~~11u~~~~~~~~~~~~~~~~~i-~~~~i RB5339 72 20/24 NORTH CAROLINA COUNTY OF ORANGE Acknowledgments / I, ~iG-~ -~'~ • r~~(~~1~ , a Notary Public for said County and State do hereby certify that Dennis Brooks and Linda Brooks personally appeared before me and acknowledged the due execution of the foregoing instrument. Witness my hand and official stamp or seal this the z~ ~ day of M 012. ~ Notary Pub c My commission expires: l0 ~/ NORTH CAROLINA COUNTY OF ORANGE ~RIAN M. FERREII Notary Pubiic, North Cerollf-~ Oranpe County My Commission Expfr~~ Octobar OS, Z013 I, ~ o,v; ~ i, '~' , a Notary Public of Orange County, North Carolina do hereby certify that Donna S. Baker personally appeared before me this day arid acknowledged that she is Clerk to the Boazd 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 the Orange County Board of Commissioners, and attested by her as Clerk to said Boazd of Commissioners. Witness my hand and official stamp or seal this the ~ day of March, 2012. ~ ` / Notary Public My commission expires: ~ Z O 1~ OFFICIAL SEAL ~~ 7~ Notary Pu61'K. North Grolina '-~ ORANGE COUNTY DAVID HUNT My Commission E,cDvas Page 20 of 21 NORTH CAROLINA COUNTY OF w'an (c-1 ih ~~~~~~~~~~~11~~1~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ R85339 73 21f24 I~ ~uK~'~i ~4 . SQ ~i ~, a Notary Public for said. County and State do hereby certify that Bercedis Peterson personally appeared before me and acknowledged that she is the Secretary of the Association for the Preservation of the Eno River Valley, Inc. and that by authority duly given and as the act of said non-profit corporation the foregoing instrument was signed in its name by the President and attested by her as Secretary. Witness my hand and official stamp or seal this the Z"~ ~ day of March, 2012. C~ti~r~ ~.~1 i~~i.l,i.titA~r~~ Notary Publi My commission expires: v~~ I~,~ .~~f ;~~~~~:~` ~~~.~~ '~2: ~p'f A R y '~ v~ ~~~ . pus~~~: ;~; ' ~~~~ / i r . , . • • ' . . ~~ ~ ``~ Page 21 of 21 ~~~~~~~~~11UU1~~~11u~~i~~n~~~~i~~~~~~~~~~~~ R85339 74 22124 • • ^~~ ~ ~~ ~ ' ' ~ ~ I ~• ~~ r i:::: ~~ ~ ~f~.::::tt ~~: ~::::;~:s :~ .. Y :~ Y ~~ :: U ~~ U I ::: 1 `-„ : a - r ~ ~ • . r ~ ..,40 Exhibit A Brooks Conservation Easement W~F 1 inch = 500 feet . _,;:. ~~ Easement boundary (113.81 aaes) Riparian cortidor (30 acres) ~ Fartnat~d area (7.45 acres) Q Potentlal Tuture hana site area =ms ~isting fartn road O Percel boundary - Streams - Buildinps • ~\ ~ ^ .\ .:ic::i~` -. v~u~r~o~sa•':~.` . ~a.~ ::::':J... \ ' ~~+I ~ ~ ~ ~40 ~ ~ t a ' es THIS MAP IS NOT A CERTIFIED SURVEY ~•~ ~a+Mr ~~ AND HAS NOT BEEN REVIEWED BY A R/ qs a~p'on 3renot¢ oC ~~a o:bi.hom.lqi~wuNana ~asou~ee LOCAL GOVERNEMENT AGENCY FOR waut~seaa~mnt eroo~c~.m~w COMPLIANCE W7TH ANY APPLICABLE LAND DEVELOPMENT REGULATIONS ,.~:'' :"~;„, •. ~ ~ ~ • / '.~ ~ 6~~ ~ / • . ~3 :% ~. :::::::::::~ :G~~:R~ ' . ~:......,.~:~=' ~ : ~~~~1~~~~~~~11UU1~1~1~1~i~~~~~~--~~-~~~~-~a ~~~~i Exhibit B RB5339 75 23/24 Agricultural and Watershed Protection Conservation Easement Permitted Exceptions 1. Taxes for the year 2012, and subsequent years, not yet due and payable. 2. Subject to the fee simple interest of R. Dennis Brooks and wife Linda C. Brooks and rights of underlying fee simple owner to use the property in any way not inconsistent with the terms of the Conservation Easernent. 3. Subject to matters shown on recorded Plat Book 110 at Page ~; Plat Book 29, Page 72; Plat Book 94, Page 88; Plat Book 109, Page 176; and Plat Book 90, Page 175. 4. Title to that portion of the property located within the Public Right of Way of Interstate 85. 5. Title to that portion of the property located within the Public Right of Way of Ben Johnston Road. Note: Centerline of pavement in Right of Way is not the Property Line. 6. Title to that portion of the property located within the Public Right of Way of Dimmocks Mill Road. 7. Rights of others thereto entitled in and to the continued uninterrupted flow of Seven Mile Creek located on the Land. 8. Rights of others thereto entitled in and to the continued uninterrupted flow of Rocky Run Creek located on the Land. 9. Title to that portion of the Land lying below the mean high water mark of Eno River. ] 0. Riparian rights incident to the Land. 11. Conservation Reserve Enhancement Program Easement to the State of North Carolina in Book 53~1 , page 18 of the Orange County Registry. and referencing a plat showing the same in Plat Book 11 D, Page (~' ~. 12. Subordination Agreement recorded in Book533`I, Page Iy . 13. Boundary Line Agreement in Book 3638, Page 137. 14. Right of Way to Piedmont Electric Membership Corp in Book 637, Page 62. 15. Right of Way to Department of Transportation in Book 1208, Page 587. ~-~~~~~~~~~~lUUlil~~ll-i~~~~~-i ~ ~~~~~u~~~ ~~~ ~~~ R85339 76 24l24 16. Right of Way to Piedmont Electric Membership Corp in Book 1801, Page 510. t 7. Right of Way to Piedmont Electric Membership Corp in Book 2687, Page 508. 18. Easement to Richard Q. Ward, Jr. and Anne Shortliffe in Book 3452, Page 501. 19. Sixty-eight foot (68) Right of Way to Duke Energy Co. 20. Right of V4'ay to Piedmont Electric Membership Corp in Book 339, Page 335. 21. Right of Way to Piedmont Electric Membership Corp in Book 356, Page 69. 22. Easement to Wilbur G. Olson and wife, Dorothy Olson in Book 408, Page 46. 23. Subject to matters shown on recorded Plat Book 8l at Page 34 including cross- conveyance deeds for 0.19 acres located on insured premises. 24. Cross-conveyance deeds for 0.19 Acres in Book 1766, Page 128 and Book 1766, Page 130. 25. Restrictions appearing of record in Book 335 at Page 281.