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HomeMy WebLinkAboutAgenda - 01-15-2008-3cORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: January 15, 2008 Action Agenda Item No. ,3 "G SUBJECT: Resolution of Approval -Conservation Easement for the Breeze Farm DEPARTMENT: Environment and Resource PUBLIC HEARING: (YIN) No Conservation ATTACHMENTS Resolution of Approval Location Map Site Map Draft Conservation Easement INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2591 PURPOSE: To consider a resolution to approve the purchase of and acceptance by Orange County of an agricultural conservation easement for the Breeze family farm. BACKGROUND: The acquisition of agricultural conservation easements to protect prime farmland in Orange County is a longstanding goal of the Board of Commissioners, and is a priority of the Lands Legacy Program. Since completing the County's first agricultural conservation easement in 2001, Orange County has protected 1,298 acres of prime farmland and riparian buffers with conservation easements. Another 962 acres of important natural and cultural resource lands have been protected by other means. In April 2004, Orange County, in cooperation with the Orange NRCS/Soil and Water Conservation District Office, applied for matching grant funds from the federal Farm and Ranch Land Protection Program (FRPP). A portion of those grant funds will be used to purchase a conservation easement to protect approximately 141 acres of the Breeze Farm. The Breeze Farm, also known as Blue Bonnet Farm, is located on the north side of Schley Road, less than one mile east of NC 57 northeast of Hillsborough (Cedar Grove Township). The farm is owned by Colonel William Breeze, Sr. Colonel Breeze, a retired Air Force colonel, purchased the property in 1947. Over the past several years, he has leased the farm for grazing beef cattle and for hay and wheat production. In 2003, Colonel Breeze and his late wife, Elizabeth M. Breeze, donated another 163-acre portion of their farm to NC State University to establish an agricultural extension and research facility. Colonel Breeze intends to grant a conservation easement on approximately 295 acres of the 404-acre farm, including the family home place, a tenant house and several farm buildings. The easement would be granted in two phases.. Phase I would protect a 141-acre portion of Tract 1 shown on the attached Site map. About 29 acres of Tract 1 would be excluded from the easement. Phase II of the project will be pursued at a later date. The County applied for a grant from the NC Agricultural Development and Farmland Preservation Trust Fund to complete the second phase of the conservation easement. The Breeze farm is located within the Little River Protected Watershed, which the County identified as a priority watershed for acquiring farmland easements in a dual effort to protect prime farmland and drinking water quality. Two creeks flow through the farm on the way to nearby South Fork Little River - a principal source of drinking water for Durham County. ERCD Staff and the County Attorney have worked with the owners to prepare an agreement that meets the owner's needs and the County's interests. The conservation easement conforms to federal guidelines pursuant to the federal Farm and Ranch Land Protection Program, which will contribute funds to this project. Colonel Breeze has swell-established conservation plan that is implemented with assistance from the Orange County NRCS field office. Colonel Breeze also has along-standing forest management plan for the wooded portion of property. The property includes the farmhouse and farm office (both ca. 1870), and several agricultural outbuildings clustered within an "Existing Farmstead Area" located close to Schley Road as shown on the attached Site -Map. All future non-agricultural development rights will be extinguished through the conservation easement. Future farm activities will continue in accordance with a Conservation Plan prepared for this farm by the Orange County Soil & Water Conservation District. ERCD will monitor the property on an annual basis. A copy of the draft easement is attached. FINANCIAL IMPACT: The fair market value of the conservation easement is $540,000, which was determined by an appraisal. The purchase price for the easement is $442,800, which is 82% of the appraised value. Mr. Breeze intends to donate 18% of the value ($97,200) and take advantage of federal and state tax benefits available for easement donations. The County would pay $230,710 (52% of the total purchase price) and $212,090 (48%) would be paid with a grant from the federal Farm & Ranch Land Protection Program. Including survey and other transaction costs, the total cost of the project (without the 18% donation) is approximately $450,000. The County's share of the total cost will be approximately $237,910 ($230,710 plus closing costs), and would come from existing funds budgeted from the $3.0 million in alternative financing (Lands Legacy Conservation Easement Fund) approved by the Board of Commissioners in FY 2002-03 and previously appropriated. The Lands Legacy Conservation Easement Fund will have approximately $570,000 remaining after this purchase for future easements. The Budget Office will bring a Capital Project Ordinance for this project forward in an upcoming budget amendment. RECOMMENDATION: The Manager recommends that the Board adopt the resolution approving the acceptance by Orange County of the conservation easement and authorize the Chair and the Clerk to sign the conservation easement agreement, subject to final review by staff and County Attorney, with a closing and recordation of the document expected to occur on or about February 28, 2007. ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural Conservation Easement between Orange County and William Breeze, Sr. 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 Breeze Farm includes approximately 141 acres in the Little River protected watershed, consists entirely of prime agricultural soils, and is located in an agricultural community with good access to farm markets; and WHEREAS, Orange County intends to accept an agricultural conservation easement that would help to conserve the natural and scenic values of this farmland; and WHEREAS, a matching grant of $212,090 was awarded to Orange County from the federal Farm and Ranch Land Protection Program to help purchase the conservation easement; and WHEREAS, a conservation easement on this approximately 141 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 conservation easement to protect prime farmland owned by William Breeze Sr.; 2) approve the execution of this conservation easement agreement with William Breeze Sr., in accordance with the terms of the proposed easement agreement, subject to final review by staff and the County Attorney; and 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 March 28, 2008. This the 15th day of January, 2008. Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board PARSON RO ..~.,.~ ,~ so ~~ ~~ ~ - ~~ '- r-------~._ ~ Ohl l Rays Creek ~ ~fX ~ ~~ .s _~ Tract 2 ~ (Planned conservation easement j Phase II) A rt / I 1 / 1 / ~ , \\\ Existing ~ / farmstead area ~ ~\\`-`\ / ~ 1` / Tract 1 `__~ r ~' ~ / ~ I ~ / Y~J SCHLEY RD ~\~\\ ~ /~ ~ / /~'~ .~ ~~ ~- \, _~ a * r ~. - ' ~ Agricultural Conservation Easement Legend Breeze Farm (141.34 acres) ® Buildings Breeze conservation easement ® Exduded fmm conservation easement Parcel boundary N `' ~ ® Existing farmstead __~ Future access road 0 130 260 520 Feet l i ~ ~ l r r~ l -Stream ® Stream buffer(torliveslodc exduslon) Orange Couniy ERCD December 27, 2007 ~. ~. ~ -__-~ - ._._- J - iT ~ , i -:: ~. I j _.. i ~ - .j - ~ _~ l~ ~ y -- -- i J -- v _.J 1 `,- ~ ~ ~ \ p _~ rQ--= f G _~ ~ ~ ~ (~ - - -o m -~~~ - ~'' ,~ % - ~ ~ 5 ~~~- .~ Il ~~ ~~ ~,,~ '_ r ~L, I~~~~ x - ~ ~, _ % ~ ~% ER j~D to ~, ~ ~ - , ~~ ~~ ~J i j ~ ~ SC - -~ _ s ~,~ ~ i ~ T ~ ~T . ~~ Q ~ G -- - - s _ ~. _ \. ;~ ~ ~ a :< ~~»~~ -( ~~~' ~ ~{ ~' ° ~ HILLSBORO(JlGf-~ `' I ~ ~~. :~ '~ ~ ~ _i Y - ~ ~~ _ '~, ~ ~ ~ ti- .1--- Breeze Agricultural Conservation Easement Legend Vicinity IVlap 0 Breeze conservation easement n ~°^°'° °~ mp C.! ~;" °~ Major streams " Parcel boundary 0 0.35 0.~ 1.4 Mlles a :~ ,~ ~ ~ I ~ ~ ~ I i ~ i 1 9° as 0 HILLSBOROUGH `~b c°`°~ ERCD November 26, 2007 Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) This instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hargrave & Peek, P.C., P.O. Drawer 1529, Hillsborough, NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE WA]EZRANTY DEED OF AGRICULTURAL CONSERVATION EASEMENT This Deed of Agricultural Conservation Easement ("Conservation Easement") is granted on this -day of , 2008, by W~LIAM H. BREEZE SR., a single person, having an address of 2600 Croasdaile Farm Parkway, Apartment 337, Durham, NC 27243, (referred to as "Grantor"), to ORANGE COUNTY, NORTI3 CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (referred to as "Grantee"). WHEREAS: Grantor is the sole owner in fee simple, of certain farm Property (the "Property"), which consists of approximately 141.34 acres of land, located in Cedar Grove Township, Orange County, North Carolina and identified as a portion of Tract 1 on the plat of property titled "Conservation Easement Plat for the Property of William H. Breeze," prepared by R.S. Jones & Associates, Inc., which plat is recorded at Plat Book _, Page _, Orange County Registry (part of PIN ). The Property includes buildings and other improvements, which are shown on Exhibit A, attached hereto and incorporated herein. The Property consists primarily of productive agricultural land. All of the soils on the Property have been classified as "prime" or "statewide important" soils by the Natural Resources Conservation Service, United States Department of Agriculture (also referred to as "MRCS" or "the United States"). It is the primary purpose of this Conservation Easement to protect the agricultural soils and agricultural viability and productivity of the Property. The Property also includes outstanding woodland and riparian habitats for a variety of wildlife species of importance to the Grantor, the people of Orange County and the people of North Carolina. Streams flow through the Property before entering the South Fork Little River, a source of drinking water for residents of Durham County. The entire property is within the Little Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) River Watershed Protection Overlay District. Furthermore, the Property contains outstanding scenic qualities that can be enjoyed by the general public, namely the views along Schley Road (State Road 1548) north of Hillsborough. 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 Report prepared by the Grantee with the cooperation of the Grantor, and acknowledged by both parties to be accurate as of the date of this Conservation Easement. This Report may be used by the Grantee 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 are fulfilled. This 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 Grantor and Grantee have copies of this Report, and said report will remain on file at `the office of the Orange County Environment and Resource Conservation Department. The Grantor and Grantee agree that the current agricultural use of, and improvements to, the Property are consistent with the conservation purposes of this Conservation Easement. The Grantor intends that the Conservation Values of the Property be preserved and maintained, and further, Grantor intends to convey to Grantee the right to preserve and protect the agricultural and other Conservation Values of the Property in perpetuity. The conservation purposes of this Conservation Easement are recognized by, and the grant of this Conservation Easement will serve, the following clearly delineated governmental 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 welfare 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 declared to be the policy of the State of North Carolina to promote the efficient production and utilization of the Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) 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 Carolina General Statute 121-34 et seq., which provides that conservation agreements are "interests in land" which maybe 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 Carolina; (6) The North Carolina Conservation Tax Credit Program, North Carolina General Statute 105-130.34 and 105-151.12 et seq., which provides for state income tax credits for donations of land that are useful for fish and wildlife conservation and other similar land conservation purposes; (7) The special use value assessment of farm and forestland as set forth in North Carolina General Statute 105-277.2 et seq.; and (8) 'The zoning of the Property by Orange County as Agricultural Residential. Grantor and Grantee 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.. Grantor agrees to create and implement a conservation plan (hereinafter the "Conservation Plan") that is developed utilizing the standards and specification of the MRCS 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; The 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; NOW, TI~REFORE, for the reasons given and other good and valuable consideration, and in consideration of the mutual covenants, terms, conditions and restrictions contained herein, the Grantor hereby grants and conveys unto Grantee a Conservation Easement, of the nature and character and to the extent hereinafter set forth, in respect to the Property; Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) 8 The terms, conditions and restrictions of the Conservation Easement are as hereinafter set forth: 1. Grant of Agricultural Conservation Easement; Extinguishment of Development Rights Grantor hereby voluntarily grants and conveys to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual Conservation Easement in the Property, which easement is an immediately vested interest in real property the nature and character described herein. Grantor promises that he will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the covenants herein. Grantor authorizes the Grantee to enforce these covenants in the manner described below. Grantor hereby voluntarily grants and conveys 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. The parties agree that such development rights are now terminated 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 Property or any other property by anyone or any entity, including the Grantee. 2. Statement of Purpose It is the primary purpose of this Conservation Easement to enable the Property to remain in agricultural use by preserving and protecting its agricultural soils and agricultural viability and productivity. Except as specifically permitted herein, no activity that would impair the actual or potential agricultural use of the Property shall be permitted. To the extent that the preservation and protection of the 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 Grantee against the Grantors, their representatives, heirs, successors and assigns, lessees, agents, and licensees. 3. Rights and Responsibilities Retained by Grantor Notwithstanding any provisions of this Conservation Easement to the contrary, the Grantor reserves to and for himself and his 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 Grantee, 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 shall require the Grantor to take any action to restore the condition Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) of the Property after any natural disaster or other event over which he had no control. Grantor understands that nothing in this Deed relieves him of any obligation or restriction on the use of the Property imposed by law. 4. Right to Farm Grantor retains the right to farm, or to permit others to farm the Property, consistent with the Conservation Values of the Property and in accordance with applicable local, state and federal laws and regulations. Subject to the terms of this Conservation Easement, farming, grazing, horticultural and animal husbandry operations are permitted only if conducted consistent with Best Management Practices. promulgated by the State of North Carolina and in conformity with a Conservation Plan as required in Paragraph 9 of this Conservation Easement. Cattle and other livestock are allowed to exist and to graze on the Property, except within a 100-foot stream buffer, which is 50 feet wide on either side of the stream as measured from the center of the stream and perpendicular to the stream the location of which is identified and marked on Exhibit A, attached hereto and incorporated herein. Exhibit A is a copy of a GIS rendering of the Property, the original of which will be maintained with the Baseline Report at the office of the Orange County Environment and Resource Conservation Department. S. Right to Privacy Grantor retains 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 onto the Property. 6. Right to Use the Property for Customary Rural Enterprises Grantor retains the right to use the portion of the Property within the "Existing Farmstead Area" (which contains approximately six acres) as identified on Exhibit A, and more particularly described in the Baseline 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 consistent with Orange County zoning regulations and permits required by and issued by Orange County under its laws and ordinances, and are conducted in buildings otherwise permitted under this Conservation Easement in a manner that is consistent with the conservation purposes of this Conservation Easement. Conducting customary rural enterprises on any other part of the Property is not permitted without the advance written permission of Grantee in each instance. Grantee shall not give such permission unless Grantee determines that the proposed. use will not diminish or impair the Conservation Values of the Property. 7. Procedure to Construct Buildings and Other Improvements ~o Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) The Grantor's rights to constructor reconstruct buildings and other improvements are described in subparagraphs (a) through (f) below. Any construction or reconstruction not permitted below is prohibited. Before undertaking any construction or reconstruction that requires advance permission, the Grantor shall notify Grantee 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 for such construction activities. (a) Fences -Existing fences may be repaired and replaced, and new fences maybe built on the Property for purposes of reasonable and customary management of livestock and wildlife or to fence off the perimeter of the Property without any further permission of Grantee. (b) Structures & Improvements -Structures, improvements, roads as described in Paragraph 12, and other impervious surfaces located on the Property, including those existing on the date of this Conservation Easement, shall not exceed 2 percent of the total area of the Property. Impervious surface shall be defined as any material which covers land and inhibits the percolation of water directly into the soil, including, but not limited to, buildings, roofing, the area covered by permanent or nonpermanent structures, macadam and pavement, concrete, paved and stone driveways, roads, and parking areas, including both existing and proposed structures which are either permanent or temporary. Structures, improvements and other impervious surfaces located in the "Existing Farmstead Area," including those existing on the date of this Agricultural Conservation Easement, shall not exceed 15 percent of the total area of the "Existing Farmstead Area" or result in exceeding the 2 percent total impervious surface limit on the Property. Existing structures, including agricultural structures and existing improvements, may be repaired, reasonably enlarged and replaced at their current locations within the "Existing Farmstead Area" as shown on Exhibit A, without further permission from the Grantee. 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) maybe built on the Property without any further permission of Grantee provided they are located in the "Existing Farmstead Area." Any new buildings, structures or improvements proposed for locations outside the "Existing Farmstead Area" shall be for agricultural purposes only and maybe built only with the advance written permission of the Grantee. The Grantee shall give such permission within a reasonable time if it determines 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. No residential dwelling maybe located on the Property except for that which is authorized in Paragraph 7(c) of this Conservation Easement. (c) Single-Family Residential Dwellings -Two residential dwellings and their appurtenant structures exist on the Property within the "Existing Farmstead Area." Any new appurtenant structures, such as garages and sheds, shall be contained within the "Existing Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~ l Farmstead Area." Nothing about Orange County's participation in or the signing of this Deed of Easement constitutes zoning or subdivision approval or the permitting of appurtenant structures.. All appurtenant structures shall be contained within the "Future Farmstead Envelope." At the time construction of such appurtenant structures is to commence, Grantee shall be notified so that its records can be updated. (d) Recreational Improvements -Grantor expressly reserves 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 other Conservation Values of the Property. However, under no circumstances shall golf courses, golf ranges, airstrips or helicopter pads be constructed, placed or permitted to remain on the Property. (e) Utility Services and Septic Systems -Installation, maintenance, repair, replacement, removal and relocation of electric, gas, and water facilities, sewer lines andlor 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. Grantor shall not permit or grant easements for utility transmission or distribution facilities or systems without the written consent of the Grantee. Maintenance, repair or improvement of a septic system(s) or other 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, is permitted. Grantors may, with the advance written permission of Grantee, which permission shall not be unreasonably withheld, grant and convey electrical, gas, water, sewer, or other utilities to serve improvements located on the property identified as "X~ Acres of Tract 1 Excluded From Conservation Easement" on the recorded plat. Any such utility easement shall be subordinate to this Conservation Easement and, unless located wholly within a right of way or utility easement existing on the date of this Deed of Conservation Easement, shall be located wholly within the area designated "Future Variable Width Right of Way" on the recorded plat. All other utilities are prohibited on the Property. Cellular communication towers or structures are also prohibited on the Property. 8. Subdivision The Property currently consists of a single tract of land. The further subdivision of the Property, including its partition, is prohibited. This prohibition applies regardless of how many separately described parcels are contained in the Property. In any event, all terms, restrictions, and conditions of this Conservation Easement shall apply to all subdivided parcels permitted by the terms of this Conservation Easement, including but not limited to the requirements of agricultural viability of the Property, the restrictions on future development, the impervious surface limits on the Property as described in Paragraph 7(b) of this Conservation Easement, the necessity of a Conservation Pian, and the prohibition on activities that are described in this Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~O~ Conservation Easement. It is understood that notice of this Conservation Easement will be included in any instrument recorded that subdivides, partitions or otherwise divides parcels. 9. Conservation Practices As required by Section 1238 I of the Food Security Act of 1985, as amended, the Grantor, his heirs, successors, or assigns, shall conduct all agricultural operations on the Property in a manner consistent with a Conservation Plan prepared in consultation with MRCS and approved by the Orange County Soil and Water Conservation District. This Conservation Plan shall be developed using the standards and specifications of the MRCS Field Office Technical Guide and 7 CFR Part 12 that are in effect on the date of execution of this Conservation Easement. The Grantor may, however, develop and implement a Conservation Plan that proposes a higher level of conservation and is consistent with the MRCS Field Office Technical Guide standards and specifications. MRCS shall have the right to enter upon the Property, with advance notice to the Grantor, in order to monitor compliance with the Conservation Plan. In the event of noncompliance with the Conservation Plan, NRCS shall work with the Grantor to explore methods of compliance and give the Grantor a reasonable amount of time, not to exceed twelve months, to take corrective action. If the Grantor does not comply with the Conservation Plan, MRCS will inform Grantee of the Grantor's non-compliance. Grantee shall take all reasonable steps (including efforts at securing voluntary compliance and, if necessary, appropriate legal action) to secure compliance with the Conservation Plan following written notification from MRCS that (a) there is a substantial, ongoing event or circumstance of non- compliance with the Conservation Plan, (b) NRCS.has worked with the Grantor to correct such noncompliance, and (c) Grantor has exhausted his appeal rights under applicable MRCS regulations. If the MRCS standards and specifications for highly erodible land are revised after the date of this Grant based on an Act of Congress, MRCS will work cooperatively with the Grantor to develop and implement a revised Conservation Plan. The provisions of this section apply to the highly erodible land conservation requirements of the Farm and Ranch Lands Protection Program and are not intended to affect any other natural resources conservation requirements to which the Grantor may be or may become subject. 10. Forest Management Everywhere on the Property, 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 pasture restoration, for firewood and other non-commercial uses, including construction of permitted improvements and fences on the Property, so long as done in accordance with the Conservation Plan referenced in Paragraph 9 of this Conservation Easement and in accordance with a forest management plan that is prepared by a professional licensed forester and is consistent with the above referenced Conservation Plan and that is approved by Grantee, which approval shall not be unreasonably withheld. Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~3 Any other cutting, removal or harvesting of trees, including any commercial harvesting of trees, maybe undertaken only if it occurs outside of the stream buffer described in Paragraph 4 of this Conservation Easement and it is in accordance with the Conservation Plan and forest management plan referred to in this Paragraph 10. Trees may be planted, harvested and removed within the area identified and marked as "Existing Farmstead Area" on Exhibit A without the advance written permission of the Grantee, so long as done in accordance with the Conservation Plan and forest management 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 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 areas for the purpose of removing soil, gravel, rock, peat, minerals or other materials necessary for permitted 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 circumstances is the drilling for or exploration for hydrocarbons permitted in, on or to the Property. 12. Road Construction Construction and maintenance of 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. With the exception of roads within the areas identified as "Existing Farmstead Area" 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 Grantee. Grantee shall not give such permission unless Grantee determines 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. Any such road covered by any impervious material including rock or gravel is subject to impervious surface requirements in Paragraph 7. 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 Property is allowable, so long as such storage is done in accordance with all applicable Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~ government laws and regulations and in such a manner so as to not impair the Conservation Values of the Property. The land application, storage and placement on the Property of domestic septic effluent and municipal sewage sludge or liquid generated from such sources for agricultural purposes may be undertaken only if in accordance with all applicable federal, state and local laws and regulations. 14. Water Rights Grantor 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. Grantor 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, Grantor 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 Grantee 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 Properly shall conform to applicable Orange County zoning, subdivision and building code regulations. 17. Ongoing Responsibilities of Grantor and Grantee Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on Grantee or the United States, or in any way to affect any existing obligation of the Grantor as owner of the Property. Among other things, this shall apply to: (a) Taxes -- The Grantor shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If Grantee is ever required to pay any taxes or assessments on its interest in the Property, the Grantor will reimburse Grantee for the same. (b) Upkeep and Maintenance -- The Grantor retains all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Properly, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee and the United States shall have no obligation for the Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~ upkeep or maintenance of the Property. Grantor will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Property. (c) Liability and Indemnification -- Grantors agree to indemnify and hold Grantee and the United States 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 agents of Grantee, in which case liability shall be as provided by law. In addition, Grantors agree to maintain liability insurance covering the Property with the limits 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 Grantee is and will remain a named insured on Grantors' Property insurance policies covering the Property. Grantors shall provide Grantee with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 18. Enforcement With reasonable advance notice to the Grantor or with the Grantor's prior verbal consent, Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement. Grantee 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, Grantee shall give the Grantor written notice of the violation and thirty (30) days to cure the violation, before commencing any legal proceedings. Grantee 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 the Grantor 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 fords that a violation has occurred, the Grantor shall reimburse Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. In any case where a court finds no such violation has occurred, each party shall bear its own costs. 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. To the extent required by law, the preceding sentence does not apply to the United States should the United States become the Grantee under this easement. In the event that Grantee fails to enforce any of the terms of this Conservation Easement as determined in the sole discretion of the Secretary of the United States Department of Agriculture, the said Secretary of Agriculture and his or her successors and assigns shall have the right to enforce the terms of the Conservation Easement through any and all authorities available under federal or State law. In the event that Grantee attempts to terminate, transfer, or otherwise Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~~0 divest itself of any rights, title, or interests of this Conservation Easement without the prior consent of the Secretary of the United States Department of Agriculture and payment of consideration to the United States, then, at the option of such Secretary, all right, title, and interest in this Conservation Easement shall become vested in the TED STATES OF AMERICA. 19. Transfer of Conservation Easement Subject to the contingent rights of the United States of America as specified in Paragraph 18 and other pertinent paragraphs herein, and with timely written notice to and approval of the United States Department of Agriculture, Grantee shall have the right to transfer the Easement created by this Deed to any public agency, provided the agency or organization expressly agrees to assume the responsibility imposed on the Grantee by this Deed. 20. Transfer of Property The Grantor agrees 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. Grantor shall notify Grantee in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein. Failure of Grantor to incorporate by reference the terms of this Conservation Easement in an instrument of transfer or conveyance or to notify Grantee 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 Grantee, Grantor, and the United States. Any such amendment shall be consistent with the Statement of Purposes of this Conservation Easement and with Grantee's and the United States' 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 Grantor and Grantee and with prior consent of the United States Department of Agriculture, 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 1.1 70A-14(g)(6) of the IRS regulations, Grantee shall be entitled to forty-five percent (45%) of the net sale proceeds (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. Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~ ~ The Grantee and the United States of America 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 53% for Grantee and 47% for the United States of America. Ali termination related expenses incurred by the Grantor and Grantee 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 Grantor and Grantee recognize that the sale of this Conservation Easement gives rise to a property right, immediately vested in Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Properly 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 Grantee for the value of the property right vested in Grantee at the time of the signing of this Conservation Easement. Due to the federal interest in this Deed, the United States must consent to any condemnation action. 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. Grantor and Grantee 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 1.170A-14(g)(6) of the IRS regulations, Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at forty-five percent (45%) of the Property's unrestricted value, 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, Grantee and the United States shall share, 53% to Grantee and 47% to the United States, Grantee's proportional value of the Conservation Easement. If, however, after the condemnation or eminent domain proceedings, a court of jurisdiction does not include, in the just compensation awarded as a result of the taking, the amount of the Conservation Easement value, then the Grantor shall not be responsible to share with Grantee any proceeds awarded. All condemnation-related expenses incurred by the Grantor and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 24. Interpretation Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) I~j This Conservation Easement shall be interpreted under the laws of the State of North Carolina and the laws of the United States, 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 rlmning with the land in perpetuity. Every provision of this Deed that applies to the Grantor o'r Grantee 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 shall 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 interest 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 Grantor and Grantee respectively at the following addresses, unless a party has been notified in writing by the other of a change of address: To the Grantor: To the Grantee: To the United States NRCS: William H. Breeze Orange County ERCD 2600 Croasdaile Farm Pkwy. PO Box 8181 Apartment 337 Hillsborough, NC 27278 Durham, NC 27243 28. Grantor's Title Warranty State Conservationist 4405 Bland Rd., Suite 205 Raleigh, NC 27609 The Grantor warrants that he holds fee simple title to the Property, free from all encumbrances, except for those exceptions deemed by the Grantee 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. 29. Subsequent Liens on Property No provisions of this Conservation Easement should be construed as impairing the ability of Grantor 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 Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~ ~ 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 subordinated to this Conservation Easement. Grantor may, with the advance written permission of Grantee, which permission shall not be unreasonably withheld, grant and convey an easement for ingress, egress and regress and for utility purposes in order to provide access to the property identified as "XX~~ Acres of Tract 1 Excluded from Conservation Easement" on the recorded plat. [NRCS recommends that the width of any future access roads through the conservation easement be restricted to single lane only-both in easement agreement and on recorded plat. Shaw will confer v~nth Planning & County Attorney on suitable language.] Any such easements shall be subordinate to this Conservation Easement, shall be located wholly within the area designated "Future Variable Width Right of Way" on the recorded plat, and the impervious surface limits on the Property as described in Paragraph 7(b) of this Conservation Easement shall pertain to any impervious surface within any such easement. 31. Grantor's Environmental Warranty "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) concerning 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 ail, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, 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. Grantor warrants that it is in compliance with, and shall remain in compliance with, all applicable Environmental Laws. Grantor warrants 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.. Grantor warrants that he has no actual knowledge of a release or threatened release of any Hazardous Materials on, at, beneath or from the Property exceeding regulatory limits. Moreover, Grantors hereby promise to indemnify and hold harmless the Grantee and United States against all costs, 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, Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantor or any other prior owner of the Property. Grantor's indemnification obligation shall not be affected by any authorizations provided by Grantee to Grantors with respect to the Property or any restoration activities carried out by Grantee at the Property; provided, however, that Grantee shall be responsible for any Hazardous Materials contributed by Grantee to the Property after the date of this Deed of Conservation Easement. 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 Grantee 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 Grantee, its successors and assigns, forever. [The remainder of this page is intentionally left blank. Signature page follows.] Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) ~~ IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: William H. Breeze Sr. Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Barry Jacobs, Chair Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners ACCEPTANCE OF PROPERTY INTEREST BY THE NATURAL RESOURCES CONSERVATION SERVICE The Natural Resources Conservation Service, an agency of the United States Government, hereby accepts and approves the foregoing Deed of Conservation Easement, and the rights conveyed therein, on behalf of the United States of America. Authorized Signatory for the NRCS Breeze Agricultural Conservation Easement (I) 12/21/07 draft (clean) Acknowledgments NORTH CAROLINA COUNTY OF I, , a Notary Public for said County and State do hereby certify that William H. Breeze Sr. personally appeared before me and acknowledged the due execution of the foregoing instrument. Witness my hand and official stamp or seal this the My commission expires: NORTH CAROLINA COUNTY OF ORANGE day of , 2008. Notary Public I, , a Notary Public of Orange County, North Carolina do hereby certify that Donna S. Baker personally appeared before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its name by the Chair of the Orange County Board of Commissioners, and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the day of , 2008. Notary Public as My commission expires: ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural Conservation Easement between Orange County and William Breeze, Sr. 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 Breeze Farm includes approximately 141 acres in the Little River protected watershed, consists entirely of prime agricultural soils, and is located in an agricultural community with good access to farm markets; and WHEREAS, Orange County intends to accept an agricultural conservation easement that would help to conserve the natural and scenic values of this farmland; and WHEREAS, a matching grant of $212,090 was awarded to Orange County from the federal Farm and Ranch Land Protection Program to help purchase the conservation easement; and WHEREAS, a conservation easement on this approximately 141 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 conservation easement to protect prime farmland owned by William Breeze Sr.; 2) approve the execution. of this conservation easement agreement with William Breeze Sr., in accordance with the terms of the proposed easement agreement, subject to final review by staff and the County Attorney; and 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 March 28, 2008. This the 15th day of January, 2008. c 1' ;; ~, .V ~ `~ k ~I 1 /~ ~ ~~~I!j9Cl~/M Donna Baker, Clerk to the Board Barryf-Jacobs, C Orange County