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HomeMy WebLinkAbout2016-694 DEAPR - Warranty Deed of Agricultural Conservation Easement for Vann Bennett and Bernadette Pelissier This instrument prepared by and return to: John L.Roberts,Office of the Orange County Attorney Box 8181,Hillsborough,NC 27278 Revenue Stamps: NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF AGRICULTURAL CONSERVATION EASEMENT This Deed of Agricultural Conservation Easement (hereinafter "Conservation Easement") is granted on this _ day of December, 2016, by VANN BENNETT and BERNADETTE PELISSIER, husband and wife, having an address of 4516 Mystic Lane, Hillsborough, NC 27278, (referred to as "Grantors"), to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (referred to as "Grantee"). The designation Grantors and Grantee as used herein shall include said parties, their respective heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neutral pronouns as required by context. WHEREAS: Grantors are the sole owners in fee simple, of certain farm Property(hereinafter the "Property"), which consists of approximately 90.47 acres of land, located in Cedar Grove township, Orange County,North Carolina and identified as Tract 1 and Tract 2 and Tract 3 (PIN 9849-89-3656 and PIN 9849-89-0929 and PIN 9849-89-6992, respectively) on the plat of property titled "Property of Vann Bennett and Bernadette Pelissier,"prepared by ENT Land Surveyors, Inc., which plat is recorded at Plat Book 115, Page 137, Orange County Registry), hereafter referred to as "the recorded Plat for this Conservation Easement." The Property includes includes buildings and other improvements, which are shown on said plat and on Exhibit A, attached hereto and incorporated herein. Page 1 of 18_ The Property consists primarily of productive agricultural land. The vast majority of the soils on the Property are classified as "prime" or"statewide important" soils by the Natural Resources Conservation Service, United States Department of Agriculture(also referred to as "NRCS"). The property includes several streams that flow generally northward before entering South Hyco Creek and Roxboro Lake, a public drinking water supply reservoir serving the City of Roxboro and Person County. The entire Property is located within the designated South Hyco Creek Protected Watershed. The primary purposes of this Conservation Easement are to protect the agricultural soils and agricultural viability and productivity of the Property, and to protect the quality of surface waters in the watershed of South Hyco Creek and Roxboro Lake. The Property also includes outstanding riparian and woodland habitats for a variety of wildlife species of importance to the Grantors and Grantee, the people of Orange County and the people of North Carolina. Furthermore, the Property contains outstanding scenic qualities that can be enjoyed by the general public, namely the views along NC Highway 86 North and Burton Road (State Road 1502). It is a secondary purpose of this Conservation Easement to protect these natural and scenic resources. The agricultural resources of the Property, and its contribution to the protection of prime farmland soils, a public water supply, natural and wildlife habitat, and the other conservation interests described herein to be preserved by this Conservation Easement are collectively referred to as the "Conservation Values" of the Property. The specific Conservation Values of the Property and its current use and state of improvement are described in a Baseline Documentation Report("Report")prepared by the 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. The Report, however, is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a controversy over its use. The Grantors and Grantee have copies of this Report, and said report will remain on file at the offices of the Orange County Department of Environment, Agriculture, Parks and Recreation. 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 the 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: Page 2 of 18 (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;" (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 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 Clean Water Management Trust Fund, authorized by NCGS § I I3A-251 et seq., which finances projects to acquire land and interests in land, including conservation easements for the purposes of providing environmental protection for surface waters and urban drinking water supplies; (8) the Soil and Water Conservation Districts Act, authorized by NCGS § 139-1, et seq., which provides for the preservation of farm, forest and grazing lands; Page 3 of 18 (9) the special use assessment of farm and forestland as set forth in NCGS § 105-277.2 et seq., which allows for lower property tax rates for land enrolled in active agricultural uses; (10) the Land Use Element of the Orange County Comprehensive Plan(adopted November 18, 2008) with its goal of"Land uses that are appropriate to on-site environmental conditions and features, and that protect natural resources, cultural resources, and community character." (11) The Orange County Agricultural Development and Farmland Protection Plan, adopted November 17, 2009, which recommends that the County acquire agricultural conservation easements to help protect farmland as a valuable natural resources; and (12) The zoning of the Property by Orange County as Agricultural Residential and South Hyco Creek Protected Watershed Overlay District, the latter to help protect the public water supply watershed of Roxboro Lake. 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 specification of the NRCS field office technical guide and 7 CFR part 12, as well as other commonly- recognized best management practices, and is approved by the Orange County Soil and Water Conservation District; Orange County, one of the parties Grantee, is a body politic existing under Chapter 153A of the North Carolina General Statutes, and is qualified to hold conservation easements under the applicable laws of the State of North Carolina; 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; The terms, conditions and restrictions of the Conservation Easement are as hereinafter set forth: 1. Grant of Conservation Easement; Extinguishment of Development Rights Grantors hereby voluntarily grant and convey to the Grantee, and the Grantee hereby voluntarily accept, a perpetual Conservation Easement in the Property, which easement is an immediately vested interest in real property the nature and character described herein. Grantors promise that they will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the covenants herein. Grantors authorize the Grantee to enforce these covenants ire the manner described below. Page 4 of 18 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 The primary purposes of this Conservation Easement are to enable the Property to remain in agricultural use by preserving and protecting its agricultural soils and agricultural viability and productivity, and to protect the wetlands, riparian areas and surface waters associated with the streams tributary to South Hyco Creek from the risk of adverse impacts arising from use or development of the Property contrary to the provisions of this Conservation Easement. Except as specifically permitted herein, no activity that would impair the actual or potential agricultural use of the Property shall be permitted. Likewise, any activity that would risk causing adverse impact to any stream tributary to South Hyco Creek is prohibited. To the extent that the preservation and protection of the other natural, historic,recreational,habitat, or scenic values referenced in this Conservation Easement are consistent with the primary purposes stated above, it is within the purpose of this Conservation Easement to also protect those values, and no activity that would significantly impair those values shall be permitted. As authorized in the Uniform Conservation and Historic Preservation Act, N.C. Gen. Stat. § 121-34 et seq., this Conservation Easement is perpetual; it restricts the Grantors' Property in perpetuity; and it is enforceable by the Grantee against the Grantors, its representatives, heirs, successors and assigns, lessees, agents, and licensees. 3. Rights and Responsibilities Retained by Grantors Notwithstanding any provisions of this Conservation Easement to the contrary, the Grantors reserve to and for themselves and their successors all customary rights and privileges of ownership, including the rights to sell, lease, and devise the Property provided such transaction is subject to the terms of this Conservation Easement and written notice is provided to the 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 he had no control. Grantors understand that nothing in this Deed relieves them of any obligation or restriction on the use of the Property imposed by law. 4. Right to Farm Grantors retain the right to farm, or to permit others to farm the Property, consistent with the Conservation Values of the Property and in accordance with applicable local, state and federal laws and regulations. Page 5 of 18 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, which Conservation Plan is hereinafter referred to as "the Conservation Plan." Cattle and other livestock are allowed to exist and to graze on the Property, except within 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, and a 50-foot stream buffer, which is 25 feet wide on either side of the stream as measured from the center of the stream and perpendicular to the stream—the locations of which are identified and marked on Exhibit A. Exhibit A is a copy of a GIS rendering of the Property, the original of which will be maintained with the Baseline Documentation Report at the office of the Orange County Department of Environment, Agriculture, Parks and Recreation. The aforementioned stream buffers shall be maintained in their natural condition and restricted from any development that would impair or interfere with the Conservation Values of the Property. 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 three acres) as identified on Exhibit A, and more particularly described in the Baseline Documentation Report, for otherwise lawful and customary rural enterprises, such as, but not limited to, farm machinery repair, sawmill, firewood distribution, bed and breakfast, farm stand, or educational programs so long as such activities are a) consistent with Orange County zoning regulations and permits required by and issued by Orange County under its laws and ordinances as they exist now and as they may be amended from time to time, and b) are conducted in buildings otherwise permitted under this Conservation Easement in a manner that is consistent with the conservation purposes of this Conservation Easement, and c) are subordinate to the agricultural and residential use of the Property. Conducting customary rural enterprises on any other part of the Property is not permitted without the advance written permission of the Grantee in each instance. Grantee shall not give such permission unless the Grantee determines that the proposed use will not diminish or impair the Conservation Values of the Property. Page 6 of 18 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 the 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 as they exist now and as they may be amended from time to time for such construction activities. (a) Fences—Existing fences may be repaired and replaced, and new fences may be built on the Property for purposes of reasonable and customary management of livestock and wildlife or to fence off the perimeter of the Property or the perimeter of the Riparian Corridor without any further permission of the Grantee. (b) Structures &Improvements—There are several structures existing on the Property as of the date of this Agricultural Conservation Easement, as shown on Exhibit A. Existing structures, including agricultural structures and existing improvements, may be repaired, reasonably enlarged, and replaced at their current locations within the"Farmstead Area,"as shown 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)may be built on the Property without any further permission of the Grantee provided they are located in the "Farmstead Area," as shown on Exhibit A. Any new buildings, structures or improvements proposed for locations outside the "Farmstead Area" shall be for agricultural purposes only and may be built only with the advance written permission of the Grantee. The Grantee shall not give such permission unless they determine that the proposed building, structure or improvement would not diminish or impair the Conservation Values of the Property or otherwise be inconsistent with this Conservation Easement. (c) Single-Family Residential Dwellings—Two residential dwellings exist on the Property-one within the"Farmstead Area" and one within the"Existing Residential Envelope," which are both identified on Exhibit A. All appurtenant structures and facilities such as garages, sheds, and septic systems for these existing residential dwellings shall be contained within the "Farmstead Area"or the"Existing Residential Envelope." One(1),but not more than one, additional single-family residential dwelling, together with reasonable appurtenant structures, such as garages, sheds, and septic systems may be built on the Property within a two-acre "Residential Envelope"located within the area identified as "Potential Future Home Site Area" on Exhibit A and outside of the stream buffers described in Paragraph 4 of this conservation easement. At the time construction of such dwelling and such appurtenant structures is to commence, Grantee shall be notified of the location of the designated"Residential Envelope" so that its records can be updated. Nothing about Orange County's participation in or the signing of Page 7 of 18 this Deed of Easement constitutes zoning or subdivision approval or the permitting of these residential dwellings and their appurtenant structures. (d) Recreational Improvements—Grantors expressly reserve the right to engage in low impact, non-developed recreational activities requiring no surface alteration of the land and posing no threat to the Conservation Values set herein such as hunting, fishing,hiking and camping, 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. Nothing about Orange County's participation in or the signing of this Deed of Easement constitutes zoning or the permitting of these recreational improvements and their appurtenant structures. (e) Utility Services and Septic Systems—Installation, maintenance, repair, replacement, removal and relocation of electric, gas, and water facilities, septic systems, sewer lines and/or other public or private utilities, including for solar energy generation and 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 and if necessary to serve the existing(or replacement)residential or commercial uses located immediately adjacent to the Property on the property identified as Orange County PIN 9849-68- 9257, is permitted. All other utilities are prohibited on the Property. Cellular communication towers or structures are prohibited on the Property. 8. Subdivision The Property currently consists of three separate parcels of land identified as Tract 1 and Tract 2 and Tract 3 on the recorded Plat for this Conservation Easement. Hereafter, the Property may be recombined and/or subdivided,provided that at no time shall the Property consist of more than three(3) separate tracts of land. The further subdivision of the Property, the recording of a subdivision plan, partition,or any other division of the Property into more than three tracts is prohibited. In any event, all terms, restrictions, and conditions of this Conservation Easement shall apply to all recombined and/or subdivided parts of the Property including but not limited to the requirements of agricultural viability of the Property, the restrictions on future development, the necessity of a Conservation Plan, and the prohibition on activities that are described in this Conservation Easement. It is understood that notice of this Conservation Easement will be included in any instrument recorded that recombines, subdivides,partitions or otherwise divides the Property-. Page 8 of 18 9. Conservation Practices All agricultural operations on the Property shall be conducted in a manner consistent with the requirements of this Conservation Easement and a Conservation Plan prepared in consultation with NRCS and approved by the Orange County Soil and Water Conservation District. This Conservation Plan shall be developed using the standards and specifications of the NRCS Field 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. Copies of the Conservation Plan shall be kept on file in the office of the Orange Soil and Water Conservation District and shall be provided to the Grantors and Grantee. The Conservation Plan may be updated from time to time by mutual agreement of the NRCS and the Grantors. NRCS and the Grantee 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, the Grantee shall work with the Grantors to explore methods of compliance. Grantors shall be given a reasonable amount of time, not to exceed twelve months, to take corrective action. If the Grantors do not comply with the Conservation Plan, NRCS will inform the Grantee of the Grantors' non-compliance. Following receipt of written notification from NRCS that(a) there is a substantial, ongoing event or circumstance of non-compliance with the Conservation Plan, (b)NRCS has worked with the Grantors to correct such noncompliance, and (c) Grantors have exhausted their appeal rights under applicable NRCS regulations, the 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. Notwithstanding the foregoing, in the event that the Grantee reasonably believe that there is a substantial, ongoing event or circumstance of non- compliance with the Conservation Plan despite efforts to work with the Grantors to correct such non-compliance, Grantee may proceed to take all reasonable steps to secure compliance. 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 (Conservation Practices) of this Conservation Easement and in accordance with a Forest Management Plan that is prepared by a professional licensed forester, and that is approved by Grantee, which approval shall not be unreasonably withheld. Any other cutting, removal or harvesting of trees, including any commercial harvesting of trees, may be undertaken only if it occurs outside of the stream buffer described in Paragraph 4 (Right to Farm) of this Conservation Easement and it is in accordance with the Conservation Plan and Forest Management Plan referred to in this Paragraph 10 (Forest Management). Page 9 of 18 Trees may be planted, harvested and removed within the areas identified and marked as "Farmstead Area" and"Existing Residential Envelope"on Exhibit A and in the two-acre future "Residential Envelope"once its location has been designated, all without the advance written permission of the Grantee. 11. Mining There shall be no filling, excavation, dredging, mining or drilling, removal of topsoil, sand, gravel,rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary for the purpose of normal and customary farming operations in accordance with the Conservation Plan or combating erosion or flooding in accordance with the Conservation Plan and as reasonably necessary for any maintenance, construction or reconstruction on the Property permitted herein. Disturbed 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, under, 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, or any other impervious material, without the advance written permission of the Grantee. For purposes of this Conservation Easement gravel roads shall not be considered impervious. Grantee shall not give such permission unless the 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. 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 outside the stream buffers as described in Paragraph 4 and identified on Exhibit A, and in accordance with all applicable government laws and regulations and in such a manner so as to not impair the Conservation Values of the Property. Page 10 of 18 14. Water Rights Grantors shall retain and reserve the right, consistent with federal, State and local laws and regulations, to use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property. Grantors shall not transfer, encumber, lease, sell or otherwise separate such water rights from title to the Property itself. 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 the 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 the Grantee, or in any way to affect any existing obligation of the Grantors as owners of the Property. Among other things, this shall apply to: (a) Taxes—The Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If the Grantee are ever required to pay any taxes or assessments on its interest in the Property, the Grantors will reimburse the 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 maintenance of all fencing and other structures and facilities necessary to comply with the terms and conditions of this Conservation Easement and the maintenance of adequate comprehensive general liability insurance coverage. Grantee 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 the Grantee harmless from any and all costs, claims or liability,including but not limited to reasonable attorneys' fees, arising from(i) any personal injury, accidents, negligence or damage relating to Page 11 of 18 the Property, or any claim thereof; (ii) any violation of any federal, state or local environmental or land use law or regulation or the use of or presence of hazardous substances, waste or other regulated materials in, on or under the Property; and(iii) Grantee exercise of its rights of entry pursuant to this Conservation Easement; provided, however that if such costs, claims or liability are due in whole or in part to the negligence of the Grantee or its agents, contractors or employees, liability shall be apportioned accordingly. In addition, Grantors agree to maintain liability insurance covering the Property with minimum coverage as follows: (i) $300,000 per person for personal injury or death, $300,000 per occurrence, and (ii) $300,000 per occurrence for property damage; and warrant that the Grantee are 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. Grantors shall indemnify and hold harmless the Grantee, its employees, agents, and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorneys' fees and attorneys' fees on appeal) to which the Grantee may be subject or incur relating to the Property, which may arise from,but are not limited to, Grantors' negligent acts or omissions or Grantors' breach of any representation, warranty, covenant, agreements contained in this Conservation Easement Deed, or violations of any Federal, State, or local laws, including all Environmental Laws. 18. 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 Grantors to restore the Property to its condition prior to the violation, as restoration of the property may be the only appropriate remedy. In any case where a court finds that a violation has occurred, Grantors shall reimburse Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. In any case where the court finds that there was a Page 12 of 18 complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney's fee to the prevailing party as provided by applicable law. 19. Transfer of Conservation Easement Either of the Grantee shall have the right to transfer, assign, convey, or otherwise to co- hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under NCGS 121-34 et seq., provided the agency or organization expressly agrees to assume the responsibility imposed on the Grantee by this Deed. If Grantee ever ceases to exist or no longer qualify under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Conservation Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Conservation Easement. 20. Transfer of Property The Grantors agree to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which they transfer or divest themselves of any interests, including leasehold interests, in all or a portion of the Property. Grantors shall notify the 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 the 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 the Grantee and Grantors. Any such amendment shall be consistent with the Statement of Purposes of this Conservation Easement and with the Grantee Conservation Easement amendment policies, and shall comply with Section 170(h) of the Internal Revenue Code or any regulations promulgated in accordance with that section. Any such amendment shall be duly recorded. 22. Procedure in the Event of Termination of Conservation Easement If it determines that conditions on or surrounding the Property change so much that it becomes impossible to fulfill the conservation purposes of this Conservation Easement, a court with jurisdiction may, at the joint request of both the Grantors and Grantee, 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-I4(g)(6) of the IRS regulations, the Grantee shall be entitled a percentage of gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to Grantors), equal to the ratio of the appraised value of this Conservation Easement to the unrestricted fair market value of the Page 13 of 18 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. All termination related expenses, including reasonable attorney fees, incurred by the Grantors and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 23. 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 the Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Property prior to the restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or eminent domain action shall be taken, on all or part of the Property,by any authorized public authority, said authority shall be liable to the Grantee for the value of the property right vested in the Grantee at the time of the signing of this Conservation Easement. If condemnation or a taking by eminent domain of a part of the Property or the entire Property by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Property, this 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 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 1.1 70A-I 4(g)(6) of the IRS regulations, Grantee shall be entitled to the percentage of gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to Grantors), equal to the ratio of the appraised value of this Conservation Easement to the unrestricted fair market value of the Property, as these values are determined on the date of this Conservation Easement, subject to any applicable law which expressly requires for a different disposition of the proceeds. 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, including reasonable attorney fees, incurred by the Grantors and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. Page 14 of 18 24. Interpretation 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 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. 26. Merger The Parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interests in the Property. 27. Notices Any notices required by this Deed shall be in writing and shall be personally delivered or sent by first class mail to the Grantors and Grantee 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: Vann Bennett and Bernadette Pelissier Orange County Dept. of Environment, 4516 Mystic Lane Agriculture, Parks and Recreation Hillsborough,NC 27278 PO Box 8181 Hillsborough,NC 27278 28. Grantors' Title Warranty The Grantors warrant that they hold fee simple title to the Property, free from all encumbrances and exceptions to title, except for those exceptions deemed by the 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 the 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 1-i-ens shall be and remain subordinate to this Conservation Easement. Page 15 of 18 30. Subsequent Easements/Restrictions on the Property The grant of any easements or use restrictions that might diminish or impair the agricultural viability or productivity of the Property or otherwise diminish or impair the Conservation Values of the Property is prohibited. Any such easements or restrictions shall be subordinated to this Conservation Easement. 31. Grantors'Environmental Warranty Grantors warrant that Grantors are in compliance with, and shall remain in compliance with, all applicable Environmental Laws. Grantors warrant that there are no notices by any governmental authority of any violation or alleged violation of, non-compliance or alleged non- compliance with or any liability under any Environmental Law relating to the operations or conditions of the Property. Grantors further warrant that Grantors have no actual knowledge of a release or threatened release of any Hazardous Materials, as such substances and wastes are defined by applicable federal and state law. Moreover, Grantors hereby promise to hold harmless and indemnify the Grantee against all litigation, claims, demands,penalties and damages, including reasonable attorney fees, arising from or connected with the release or threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantors or any other prior owner of the Property. Grantors' indemnification obligation shall not be affected by any authorizations provided by the Grantee to Grantors with respect to the Property or any restoration activities carried out by the Grantee at the Property; provided, however, that the Grantee shall be responsible for any Hazardous Materials contributed by the Grantee to the Property after the date of this Deed of Conservation Easement. "Environmental Law"or"Environmental Laws"means any and all Federal, state, local or municipal laws,rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) 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. Page 16 of 18 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. IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTORS: Vann Bennett Bernadette Pelissier Accepted: GRANTEE: ORANGE COUNTY NORTH CAROLINA By: Mark Dorosin, CKair Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners Page 17 of 18 Acknowledgments NORTH CAROLINA COUNTY OF ORANGE 1, , 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. Witness my hand and official stamp or seal this the day of December, 2016. Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE'' 1, J)PaJC Ob , a Notary Public of Orange County,North Carolina do hereby certify that Donna S. Baker fiersonally 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 ( A day of December, 2016. Notarylblic My commission expires: NHS,Lloyd l D- )D -az)ca C) inaati Page 18 of 18