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HomeMy WebLinkAboutAgenda - 02-20-2007-6aORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: February 20, 2007 Action Agenda Item No. to -c4 SUBJECT: Resolution of Approval — Conservation Easement for Fickle Creek Farm DEPARTMENT: Environment and Resource Conservation ATTACHMENT Resolution of Approval Location Map Site Map Draft Conservation Easement PUBLIC HEARING: (Y/N) No 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 Fickle Creek Farm. BACKGROUND: The acquisition of agricultural conservation easements to help preserve 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 865 acres of prime farmland and riparian buffers with conservation easements. Another 824 acres of important natural resource lands have been protected by other means. In April 2005, Orange County, in cooperation with the Orange NRCS/Soil and Water Conservation District Office, applied for matching funds from the federal Farm and Ranch Land Protection Program (FRPP) to purchase a conservation easement for an approximately 61 -acre farm owned by Ben Bergmann and Noah Ranells (now a County employee in the Economic Development Department). Grant funds for this purpose were awarded to Orange County and accepted by BOCC action in June 2005. Fickle Creek Farm is located on the east side of Buckhorn Road (Bingham Township), and is within the Cane Creek watershed. Since acquiring the property in 2002, the owners (Noah Ranells and Ben Bergmann) have made several improvements to the land, which had be ' been out of active farm use for several years. The owners worked with the Orange NRCS/Soil & Water District to install several agricultural best management practices (including fencing, stock trails, and heavy use areas) in accordance with a Conservation Plan. In 2006, the County designated Fickle Creek Farm as part of the Cane Creek/Buckhorn Voluntary Agricultural District. The owners sell their produce, goat meat, chickens and eggs at the Durham and Hillsborough farmers markets. They also offer goat processing, farm stays, farm tours, and weed control with goats. Mr. Ranells and Mr. Bergmann intend to grant a conservation easement on the entire 61 acres, which includes both cropland and pasture. ERCD Staff and the County Attorney have worked with the owners to prepare an easement agreement that meets their needs and the County's interests. The easement also conforms to federal guidelines pursuant to the federal Farm and Ranch Land Protection Program, which will also contribute funds to this project. The Orange Water and Sewer Authority (OWASA) has agreed to partner with the County on the purchase of this conservation easement. The easement would further OWASA's goals of protecting water quality in the Cane Creek Watershed. The OWASA Board of Directors has agreed to participate in the easement, and would -contribute up to $61,000 toward the purchase price, with the final amount to be determined at a subsequent meeting of the OWASA Board. The easement would permanently protect the entire 61 -acre property for farm use. The existing residence and farm buildings are clustered within a "Farmstead Area" located in the middle of the property. No future residential buildings or subdivision would beallowed. Future farm activities will need to be in accordance with a Conservation Plan prepared for this site by the Orange Soil and Water Conservation District. All other future non-agricultural development rights would be extinguished through the easement. ERCD will monitor the property on an annual basis. A copy of the draft easement is attached. A survey of the property is underway, which when completed may change the exact size of the conservation easement property. FINANCIAL IMPACT: Two appraisals were conducted to determine the fair market value of the development rights that will be removed from the land. The purchase price for the easement is $277,050. Including survey and other transaction costs, the total cost of the project is approximately $283,000, with $138,525 of that amount to be reimbursed by the federal Farm and Ranch Land Protection Program. Orange Water and Sewer Authority has agreed to participate, and would potentially contribute $61,000 to the project (actual amount subject to final approval of the OWASA board). The County's share of the cost (approximately $83,550 with OWASA's full financial participation, or up to $145,000 with a lesser amount from OWASA) would come from existing funds budgeted from the $3.0 million in alternative financing for conservation easements approved by the Board of Commissioners in FY 2002-03 and previously appropriated. 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 March 31, 2007. ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural Conservation Easement between Orange County and Fickle Creek Farm WHEREAS, Orange County has an adopted goal promoting the preservation of farmland in the County; and WHEREAS, agriculture in Orange County is an important facet of the economy and way of life in the County; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on prime or threatened farmland within water supply watersheds; and WHEREAS, Fickle Creek Farm includes approximately 61 acres in the Cane Creek protected watershed, consists of a majority of prime soils, and is located in an agricultural community with good access to farm markets; and WHEREAS, in 2006 Orange County designated Fickle Creek Farm as part of the Cane Creek /Buckhorn Voluntary Agricultural District; and WHEREAS, a matching grant was awarded to Orange County from the federal Farm and Ranch Land Protection Program to help protect the future of this farm with an agricultural conservation easement; and WHEREAS, a conservation easement on this 61 -acre farm would ensure the preservation of this farmland for future generations and compensate the owners for this 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 Noah Ranells and Ben Bergmann; 2) approve the execution of this conservation easement agreement with Noah Ranells and Ben Bergmann, 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 31, 2007. This the 20th day of February, 2007. Moses Carey Jr., Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board ■ ` o'■ 5 ■ ■ ■ ROW 151 1 0 O z O Y U � � m W s ■ / / / / =n1'° c� —easem Proposed Agricultural Conservation Easement Easement area Existing farm road Fickle Creek Farm ® Streams +/- 61 acres 50' stream buffer (for livestock exclusion) Orange County Environment & Resource Farmstead area (3.4 acres) Conservation s 0 Department Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 6 This instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hargrave & Peek, P.C., P.O. Drawer 1529, Hillsborough, NC 27278 • e0 -• WE 11 ho I was] •1• WARRANTY This Deed of Agricultural Conservation Easement ( "Conservation Easement ") is granted on this — day of , 2006, by NOAH N. RANELLS and BEN A. BERGMA.NN, tenants in common, having an address of 4122 Buckhorn Road, Efland, NC 27243 (referred to as "Grantors "), to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (referred to as "Grantee "). Grantors are the sole owners in fee simple, of certain farm Property, more particularly described in Exhibit A, attached hereto and incorporated herein (the "Property"), which consists of approximately 61 acres. of land, located in Bingham Township, Orange County, North Carolina and identified as on the plat of property titled "Conservation Easement Plat for the Property of Noah Ranells and Ben Bergmann," prepared by , P.L.S., which plat is recorded at Plat Book _, Page Orange County Registry (PIN 9842 -05- 4746). The Property includes buildings and other improvements, which are shown on Exhibit B, attached hereto and incorporated herein. The Property consists primarily of productive agricultural land. The majority 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 streams that flow through the Property on their way to where they eventually flow into Cane Creek, a source of drinking water for residents of Orange County. Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 7 The entire Property is within the Cane Creek Protected Watershed. It is a secondary purpose of this Conservation Easement to protect these natural resources. The agricultural resources, including the protection of soils and other natural resources of the Property 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 Grantors, 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 Grantors 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 Grantors 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 Grantors intend that the conservation values of the Property be preserved and maintained, and further, Grantors intend 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 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;" Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 8 (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 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 Farmland Preservation Trust Fund established in 1986 (N.C.G.S. 106- 744(c)) to preserve important farmland in North Carolina; (6) The special use value assessment of farm and forestland as set forth in North Carolina General Statute 105 -277.2 et seq.; and (7) The zoning of the Property by Orange County as Agricultural Residential. Grantors 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. Grantors agree to create and implement a conservation plan (hereinafter the "Conservation Plan") that is developed utilizing the standards and specifications 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; 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, THEREFORE, for the reasons given and other good and valuable consideration, and in consideration of the mutual covenants, terms, conditions and restrictions contained herein, the Grantors hereby grant and convey unto Grantee a Conservation Easement, of the nature and character and to the extent hereinafter set forth, in respect to the Property as described in Exhibit A; • The terms, conditions and restrictions of the Conservation Easement are as hereinafter set Giant of Agricultural Conservation Easement Grantors hereby voluntarily grant and convey to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual Agricultural 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 Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 9 act on or affecting the Property that is inconsistent with the covenants herein. Grantors authorize the Grantee to enforce these covenants in the manner described below. Grantors hereby voluntarily grant and convey to the Grantee all development rights for the Property, except as otherwise reserved and provided by the terms of this Conservation Easement, that are now or hereafter inherent in the Property. 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 Agricultural 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. This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land, and is enforceable by Grantee against the Grantors, their representatives, heirs, successors and assigns, lessees, agents, and licensees. 3. Rights and Responsibilities Retained by Grantors Subject to the terms and restrictions hereof, the Grantors reserve to and for themselves and their successors the right to quiet enjoyment of the Property and the right to partake in passive recreation on the Property. 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 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 Grantors to take any action to restore the condition of the Property after any natural disaster or other event over which they 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 Property and in accordance with applicable local, state, and federal laws and regulations. Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 10 Subject to the terms of this Agricultural 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 50- foot -wide stream buffer —the location of which is identified and marked on Exhibit B, attached hereto and incorporated herein. Exhibit B 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 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 "Farmstead Area" (which contains approximately 3.4 acres) as identified on Exhibit B, and more particularly described in the Baseline Report, for otherwise lawful and customary rural enterprises, such as, but not limited to firewood distribution, bed and breakfast, farm stand, farm tours, 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 The Grantors' rights to construct or 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 Grantors 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 may be 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. Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 11 (b) Structures & Improvements — Structures and improvements, including paved roads 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. 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 Exhibit B, 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) may be built on the Property without any further permission of Grantee provided they are located in the "Farmstead Area." Structures, improvements, and other impervious surfaces located in the "Farmstead Area," including those existing on the date of this Agricultural Conservation Easement, shall not exceed 15 percent of the total area of the "Farmstead Area" or result in exceeding the 2 percent total impervious surface limit on 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 proposed structures that are either permanent or temporary. Any new agricultural buildings, structures or improvements proposed for locations outside the "Farmstead Area" may be 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. (c) Farm Support Housing — No more than one (1) single - or multi - family — dwelling to house farm tenants, employees or others engaged in agricultural production on the Property may be built on the Property without any further permission of the Grantee, provided the dwelling is less than 1,000 square feet in floor size and it is located within that area identified and marked as the "Farmstead Area" identified on Exhibit B. At the time that construction of such structure is to commence, Grantee shall be notified so that its records can be updated. (d) Single- Family Residential Dwellings — One residential dwelling exists on the Property within the Farmstead Area, and is depicted as "Existing Residence" on Exhibit B. All appurtenant structures (garage, sheds) shall be contained within the "Farmstead Area." No other residential dwelling may be built on the Property except for that which is authorized in Paragraph 7 (c) of this Conservation Easement. (e) 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 Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 12 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. 69 Utility Services and Septic Systems — Installation, maintenance, repair, replacement, removal, and relocation of electric, gas, and water facilities, 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. Grantors 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. All other utilities are prohibited on the Property including, but not limited to, cellular communication towers or structures. [Grantors wants to reserve the right to allow co- location of cellular communication infrastructure on existing towers within Duke power line ROW; as long as it results in no net loss of farmland. NRCS has approved; County to add language to that affect.] 8. Subdivision The Property currently consists of a single tract of land. The subdivision of the Property, including its partition, is prohibited except as may be required by Orange County to enable the construction of the farm support dwelling provided for in Paragraph 7(c). In the event a farm support dwelling is constructed that requires Orange County subdivision approval, the subdivided lot shall, so long as this Conservation Easement is applicable to the Property, remain in the same ownership as the parent parcel from which the farm support dwelling lot is divided so that if conveyed the tenant housing, farmstead area, and parent parcel remain together as one parcel. This prohibition applies regardless of how many separately described parcels are contained in the legal description attached as Exhibit A. In any event, all terms, restrictions, and conditions of this Conservation Easement shall apply to any subdivided parcel 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 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 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 Grantors, their 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 Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 13 Plan shall be developed using the most recent standards and specifications of the NRCS Field Office 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, such as innovative management practices associated with "whole farm planning," holistic resource management, and sustainable agriculture and which Conservation Plan is approved by the Orange County Soil and Water Conservation District. NRCS 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 shall work with the Grantors to explore methods of compliance and give the Grantors a reasonable amount of time, not to exceed twelve months, to take corrective action. If the Grantors do not comply with the Conservation Plan, NRCS will inform Grantee of the Grantors' 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 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. 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 Grantors 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 Grantors may be or may become subject. 10. Forest Management 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 for 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 prepared by a professional licensed forester approved by Grantee, such approval to not be unreasonably withheld, that is consistent with the above referenced Conservation Plan. Any other cutting, removal, or harvesting of trees, including any commercial harvesting of trees, may be undertaken only if a) the purpose is for clearing land for cultivation or use by livestock, and b) it occurs outside of the stream buffer described in Paragraph 4 of this Conservation Easement, and c) it is in accordance with the Conservation Plan and forest management plan referred to in this Paragraph 10. Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 14 Trees may be planted, harvested and removed within the area identified and marked as "Farmstead Area" on Exhibit B 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 combating erosion or flooding in accordance with the Conservation Plan and as reasonably necessary for any permitted maintenance, construction or reconstruction on the Property. 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. 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 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. Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 15 14. Water Rights Grantors shall retain and reserve the right 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. 15. 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 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 Property shall conform to applicable Orange County zoning, subdivision, and building code regulations. 17. Ongoing Responsibilities of Grantors 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 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 Grantee is ever required to pay any taxes or assessments on its interest in the Property, the Grantors will reimburse Grantee for the same. (b) Upkeep and Maintenance -- The Grantors retain all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee and the United States 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. (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 Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 16 person for personal injury or death, up to $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. Extinguishment of Development.Rights Except as otherwise reserved to the Grantors in this Conservation Easement, the parties agree that all development rights appurtenant to the Property are hereby now released, terminated, and extinguished, and may not be used on or transferred to any portion of the Property as it now or hereafter may be bounded or described, or used 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. 19. Enforcement With reasonable advance notice to the Grantors or with the Grantors' 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 Grantors 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 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, the Grantors 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. 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 Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 17 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 UNITED STATES OF 20. Transfer of Conservation Easement Subject to the contingent rights of the United States of America as specified in paragraph 19 and other pertinent paragraphs herein, and with timely written notice to and advanced approval of the United States Department of Agriculture, Grantee shall have the right to transfer the Easement created by this Deed to another public agency, provided the agency or organization expressly agrees to assume the responsibility imposed on the Grantee by this Deed and has the necessary authority to hold and administer conservation easements. 21. 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. The Grantors shall notify Grantee in writing at least thirty (30) days before conveying the Property, 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 Grantee of a transfer or conveyance shall not impair the validity of this Conservation Easement or limit its enforceability m any way. 22. Amendment of Conservation Easement This Conservation Easement may be amended only with the written consent of Grantee, Grantors, and the United States. Any such amendment shall be consistent with the Statement of Purposes of this Conservation Easement and with Grantee's 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. 23. 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 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 sixty -five percent (65 %) of the net sale proceeds (equal to the ratio of the purchase price 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), Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 18 subject to any applicable law which expressly provides for a different disposition of the proceeds. 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 _% for the Grantee and _% for the United States of America. All termination related expenses incurred by the Grantors and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 24. Procedure in the Event of Condemnation or Eminent Domain Grantors and Grantee recognize that the partial 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 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 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. Grantors 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 sixty -five percent (65 %) 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, the Grantee and the United States shall share, _% to Grantee and _% to the United States, the 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 Grantors shall not be responsible to share any proceeds awarded. All condemnation- related expenses incurred by the Grantors and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 25. Interpretation Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 19 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. 26 Perpetual Duration; Severability The Conservation Easement created by this Deed shall be a servitude running with the land in perpetuity. Every provision of this Deed that applies to the Grantors or 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. 27. Merger The Parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Property. 28. 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, Grantee, and the United States respectively at the following addresses, unless a party has been notified in writing by the other of a change of address: To the Grantors: To the Grantee: Fickle Creek Farm Orange County ERCD 4122 Buckhorn Road P.O. Box 8181 Efland, NC 27243 Hillsborough, NC 27278 29. Grantor's Title Warranty To the United States MRCS: State Conservationist 4405 Bland Rd., Suite 205 Raleigh, NC 27609 The Grantors warrant that they hold 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 C to this Conservation Easement, and hereby promise to defend the same against all claims that may be made against it. 30. Subsequent Liens on Property 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. Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 20 31. 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 subordinated to this Conservation Easement. 32. Grantors' 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 oil, 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. Grantors warrants that they 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 warrant that they have 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 Grantee and the 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, 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. Grantors' 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 after this date to the Property by Grantee. 33. Entire Agreement Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 21 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. 34. 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.] Fickle Creek Farm Conservation Easement Draft BOCC Jan 22 22 IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above. Accepted: ATTEST: Donna S. Baker, Clerk to the Board of Commissioners Noah N. Ranells : M = ORANGE COUNTY, NORTH CAROLINA go Moses Carey Jr., Chair Orange County 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 Fickle Creek Farm Conservation Easement NORTH CAROLINA COUNTY OF ORANGE M Acknowledgments Draft BOCC Jan 22 23 a Notary Public for said County and State do hereby certify that and personally appeared before me and acknowledged the due execution of the foregoing instrument. Notary Public My commission expires: MOVE Q I M91 •'A 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 , 200_. Notary Public My commission expires: