HomeMy WebLinkAboutDeed of Agricultural Conservation Easement between OC and The Wizard's Cauldron, Ltd. B00K26Q5 PALL 422
Prepared by and return to: D. Michael Parker, P.O. Box 100, Hillsborough, NC 27278
STATE OF NORTH CAROLINA Tax map 2. 13 S F Parcel q$44. L 1.1257
COUNTY OF ORANGE
DEED OF AGRICULTURAL CONSERVATION EASEMENT
This Deed of Agricultural Conservation Easement ("Easement") is granted on this day of
2001, by THE WIZARD'S CAULDRON, LTD., having an address of 8411 N.C. Hwy 86, Cedar
Grove, NC 27231 ("Grantor"), to ORANGE COUNTY, NORTH CAROLINA , having an
address of P.O. Box 8181, Hillsborough,NC 27278 ("Grantee").
WHEREAS:
Grantor is the sole owner in fee simple, of certain farm Property, more particularly
described in Exhibit A, attached hereto and incorporated herein(the "Property"), which consists
of approximately 2.00 acres of land, located in Cedar Grove Township, Orange County, North
Carolina and identified as "Conservation Easement" on the plat of property entitled "PROPERTY
OF THE WIZARD'S CAULDRON" prepared by ENT Land Surveys, Inc. which plat is recorded
at Plat Book 9O ,Page my, Orange County Registry.
The Property consists primarily of productive agricultural land currently under cultivation. It is
the primary purpose of this Easement to protect the agricultural soils and agricultural viability and
productivity of the Property.
The agricultural, resources of the Property are referred to as the" conservation values" of
the Property.
The Grantor and Grantee agree that the current agricultural use of the Property are
consistent with the conservation purposes of this Easement.
The Grantor intend that the conservation values of the Property be preserved and
maintained, and further, Grantor 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 Easement are recognized by, and the grant of this
Easement will serve,the following clearly delineated governmental conservation policies:
The Farmland Protection Policy Act, P.L. 97-98,7 U.S.C. Section 4201, et seq., whose
purpose is "to minimize the extent to which Federal programs and policies contribute to the
unnecessary and irreversible conversion of farmland to nonagricultural uses, and to assure that
Federal programs are administered in a manner that,to the extent practicable, will be compatible
with State, unit of local government and private programs and policies to protect farmland;"
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; "
BooK2605 PAGE 423
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 prodliction 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; "
The State of North Carolina has authorized the creation of Conservation Easements
pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements
Act, N.C.G.S. 121-34 et. seq., which provide 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 uses," and
which provides for tax assessment of lands subject to such agreements "on the basis of the true
value of the land and improvements less any reduction in value caused by the agreement" ; and
the Grantor and Grantee wish to avail themselves of the provisions of that law.
The Grantee is a body politic existing under Chapter 153A of the North Carolina General
Statutes, and is qualified to hold Easements under the applicable laws of the State of North
Carolina;
NOW,THEREFORE, for the reasons given, and in consideration of their mutual
covenants, terms, conditions and restrictions contained herein, the parties agree as follows.
1. Grant of Agricultural Easement
Grantor hereby voluntarily grants and conveys to the Grantee, and the Grantee hereby
voluntarily accepts, a perpetual Agricultural Conservation Easement, an immediately vested
interest in real property the nature and character described herein. Grantor promises that it will
not perform, nor knowingly allow others to perform, any act on or affecting the Property that is
inconsistent with the covenants herein. Grantor authorizes the Grantee to enforce these covenants
in the manner described below.
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 .No activity which shall significantly 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
Easement are consistent with the primary purpose stated above, it is within the purpose of this
Easement to also protect those values, and no activity which shall significantly impair those
values shall be permitted.
3. Rights and Responsibilities Retained by Grantor
Notwithstanding any provisions of this Easement to the contrary, the Grantor reserves to
and for itself and its successors all customary rights and privileges of ownership, including the
rights to sell, lease, and devise the Property, together with any rights not specifically prohibited
by or limited by this Easement, expressly including the impervious surface rights pertaining to
the Property as those rights are determined by the Planning Department of Grantee pursuant to
Grantee's zoning not inconsistent with the Statement of Purpose herein. Unless otherwise
specified below, nothing in this Easement shall require the Grantor to take any action to restore
eooK2605 PAGE 424
the condition of the Property after any Act of God or other event over which they had no control.
Grantor understands that nothing in this Deed relieves it of any obligation or restriction on the use
of the Property imposed by law.
4. Right to Farm
Grantor retains the right to farm, or to permit others to farm the Property, consistent with
the conservation values of the Property and in accordance with applicable local, state and federal
laws and regulations .
5. Right to Privacy
Grantor retains the night to privacy and the right to exclude any member of the public
from trespassing on the Property.
6. Right to Use the Property for Customary Rural Enterprises
Grantor retains the right to use the Property for otherwise lawful and customary bona fide
farm purposes.
7.Procedure to Construct Buildings and Other Improvements
The Grantor may not construct any buildings or other improvements on the Property
without the express permission of the Grantee.
8. Subdivision
The legal subdivision of the Property, recording of a subdivision plan, partition,or any
other division of the Property into two or more parcels, is prohibited without the advance written
permission of the Grantee. This prohibition applies regardless of how many separately described
parcels are contained in the legal description attached as Exhibit A. The Grantee shall not give
such permission, unless the Grantee determines that the proposed subdivision will not
substantially diminish or impair the agricultural viability or conservation values of the Property.
Grantee may give or withhold its permission in its discretion and solely in its capacity as owner
of the conservation easement in the Property. It is understood that notice of this Easement will be
recorded on any approved subdivided, partitioned or otherwise divided parcels.
9. Conservation Practices
All farming operations shall be conducted in a manner consistent with a farm
conservation plan prepared by the U. S. Department of Agriculture,Natural Resources
Conservation Service,or its successor,or by another qualified conservation professional
approved by the Grantee. This plan shall be updated periodically, and in any event at the time the
basic type of agricultural operation on the Property changes or at the time ownership of the
Property changes. All farming operations shall be in accordance with all applicable federal, state
and local laws. Under no circumstances shall there be any increase in size or scope to industrial or
factory type livestock operations characterized by the continuous confinement of livestock in
confined environments for the purpose of raising, feeding and fattening for market, nor shall any
slaughtering facilities or hog operation be allowed.
BooK2605 PACE 425
The land application storage and placement on the Property of domestic septic effluent
and municipal, commercial or industrial sewage sludge or liquid generated from such sources for
agricultural purposes may be undertaken only with the written permission of Grantee and only if
in accordance with all applicable federal, state and local laws and regulations.
10. Forest Management
Trees may be removed, cut and otherwise managed to control insects and disease,to
prevent personal injury and property damage, for firewood and other uses, including construction
of permitted improvements and fences on the Property .Any other cutting, removal or harvesting
of trees may be undertaken only if the purpose is for clearing land for cultivation or use by
livestock, and it is in accordance with either the conservation plan referenced in Paragraph 9
herein or a forest management plan prepared by a professional forester.
11.Mining
The mining or extraction of soil, sand, gravel, rock, oil, natural gas, fuel or any other
mineral substance, using any method that disturbs the surface of the land, is prohibited without
the advance written permission of the Grantee. The Grantee shall not give such permission, unless
the Grantee determines that the proposed mining or extraction will not substantially diminish or
impair the conservation values of the Property. Notwithstanding, any other provision of this
Easement, no more of the Property maybe disturbed by mining or other extractive activities as
may be reasonably necessary and incidental to carrying out the improvements and agricultural
uses permitted on the property by this Easement. Such activities are permitted only to the extent
they are consistent with Internal Revenue Code Sections 170(h)(5) and (6) and Treasury
Regulation Section 1.1 70A-14(g)(4) and State law and Orange County zoning, erosion control
and other applicable regulations.
12. Paving and Road Construction
Subject to regulations for impervious surface restrictions, construction and maintenance
of unpaved farm roads that may be reasonably necessary and incidental to carrying out the
improvements and uses permitted on the Property by this Easement are permitted. No portion of
the Property shall be paved or otherwise covered with concrete, asphalt, or any other impervious
paving material, without the advance written permission of the Grantee. The 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 substantially diminish or impair the conservation
values of the Property.
13. Dumping and Trash
No trash, refuse, vehicle bodies or parts, rubbish, debris,junk, waste, radioactive or
hazardous waste, shall be placed, stored, dumped, buried or permitted to remain on the Property,
except as reasonably required for the use of the Property for agricultural activities, and except as
in accordance with applicable local, state and federal laws and regulations. The storage of
agricultural products, byproducts and agricultural equipment on the Property, so long as such
storage is done in accordance with all applicable government laws and regulations, is permitted.
U
BOOK2605 PACE 426
14. Water Rights
Grantor shall retain and reserve the right to use any appurtenant water rights sufficient to
maintain the agricultural productivity of the Property .Grantor shall not transfer, encumber, lease,
sell or otherwise separate such water rights from title to the Property itself.
15. Sewage Disposal Rights
For agricultural purposes and uses and no other, Grantor reserves the right to use the
Property for an on-site sewage disposal system for the purpose of erecting, constructing,
installing, preparing and thereafter using, operating, maintaining, inspecting, repairing, replacing
and improving a ground absorption sewage disposal system. In the event that the Grantor or his
heirs, successors and assigns in title use the Property for such purpose,then and in said event, any
ground absorption sewage disposal system will be properly constructed, operated, maintained,
repaired and, if necessary, replaced all in accordance with the laws of the State of North Carolina
and the Orange County Health Board and no unreasonable damage shall result from use of the
system. No such system may be used for the use now made of and any future non bona fide farm
use to be made of the existing industrially zoned property adjacent to the Property.
16. Ongoing Responsibilities of Grantor and Grantee
Other than as specified herein, this 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 Grantor as
owner of the Property. Among other things,this shall apply to:
(a) Taxes --The Grantor shall continue to be solely responsible for payment of all taxes
and assessments levied against the Property If the Grantee is ever required to pay any taxes or
assessments on its interest in the Property, the Grantor will reimburse the Grantee for the same.
(b) Upkeep and Maintenance --The Grantor shall continue to be solely responsible for the
upkeep and maintenance of the Property, to the extent it may be required by law. The Grantee
shall have no obligation for the upkeep or maintenance of the Property.
(c)Liability and Indemnification --Grantor agrees to indemnify and hold Grantee
harmless from any and all costs, claims or liability, including but not limited to reasonable
attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the
Property, or any claim thereof, unless due to the negligence of Grantee or its agents, in which
case liability shall be apportioned accordingly. In addition, Grantor agrees to maintain liability
insurance covering the Property with the limits as follows: $300,000.00, $300,000.00 and
$300,000, and warrant that Grantee is and will remain a named insured on Grantor's Property
insurance policies covering the Property. Grantor shall provide Grantee with a certificate of
insurance coverage on the effective date of this Easement and within 10 days of each insurance
renewal date.
17. Development Rights Extinguished
Except as otherwise reserved to the Grantor in this Easement, the parties agree that all
development rights appurtenant to the Property are hereby 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 to any other property adjacent or otherwise, nor used for the purpose of
calculating permissible lot yield of the Property or any other property.
eooK2605 PACE 427
18. Enforcement
With reasonable advance notice to the Grantor, the Grantee shall have the right to enter
the Property for the purpose of inspecting for compliance with the terms of this Easement. The
Grantee shall have the right to prevent violations and remedy violations of the terms of this
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
Easement. Except when an ongoing, or imminent violation could irreversibly diminish or impair
the conservation values of the Property, the Grantee shall give the Grantor written notice of the
violation and thirty(30) days to cure the violation, before commencing any legal proceedings. If
a court with jurisdiction determines that a violation may exist or has occurred. the Grantee may
obtain an injunction to stop the violation,temporarily or permanently. The parties agree that a
court may issue an injunction or order requiring the Grantor to restore the Property to its
condition prior to the violation as restoration of the property may be the only appropriate remedy.
In any case where a court finds that a violation has occurred, the Grantor shall reimburse the
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. In any case where a court
finds no such violation has occurred, each party shall bear its own costs.
19. Transfer of Easement
The Grantee shall have the right to transfer the 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 the Grantee ever ceases to exist or no
longer qualifies under Section 170(h) of the U .S. Internal Revenue Code, or applicable state law,
a court with jurisdiction shall transfer this Easement to another qualified organization having
similar purposes that agrees to assume the responsibility imposed by this Easement.
20. Transfer of Property
The Grantor agrees to incorporate by reference the terms of this 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 Grantor shall notify the Grantee in
writing at least thirty (30) days before conveying the Property, or any part thereof or interest
therein. Failure of Grantor to do so shall not impair the validity of this Easement or limit its
enforceability in any way.
21. Amendment of Easement
This Easement may be amended only with the written consent of the Grantee and the
Grantor. Any such amendment shall be consistent with the Statement of purposes of this
Easement and with the Grantee's 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.
BOOK2605 PAGE 428
22. Procedure in the Event of Termination of Easement
If it determines conditions on or surrounding the Property change so much that it
becomes impossible to fulfill the conservation purposes of this Easement, a court with jurisdiction
may, at the joint request of both the Grantor and the Grantee,terminate or modify the Easement
created by this Deed in accordance with applicable state law. If the Easement is terminated and
the Property is sold then as required by Section 1.1 70A -14(g)( 6) of the IRS regulations, the
Grantee shall be entitled to a percentage of the gross sale proceeds equal to the ratio of the
appraised value of this Easement to the unrestricted fair market value of the Property, as these
values are determined on the date of this Easement, subject to any applicable law which expressly
provides for a different disposition of the proceeds. The Grantee shall use its proceeds
consistently with the general conservation purposes of this Easement.
All termination related expenses incurred by the Grantor 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
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 Easement, the Easement may be terminated or modified through condemnation proceedings.
If the Easement is terminated and the Property is sold or taken for public use, then, as required by
Section 1.170A-14(g)( 6) of the IRS regulations, the Grantee shall be entitled to a percentage of
the gross sale proceeds or condemnation award equal to the ratio of the appraised value of this
Easement to the unrestricted fair market value of the Property, as these values are determined on
the date of this Easement, subject to any applicable law which expressly requires for a different
disposition of the proceeds. The Grantee shall use its proceeds consistently with the general
conservation purposes of this Easement. All termination-related or condemnation-related
expenses incurred by the Grantor and the Grantee shall be paid out of any recovered proceeds
prior to distribution of the net proceeds as described herein.
24. Interpretation
This Easement shall be interpreted under the laws of the State of North Carolina,
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 Easement created by this Deed shall be a servitude running with the land in
perpetuity .Every provision of this Deed that applies to the Grantor or the 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
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.Notices
Any notices required by this Deed shall be in writing and shall be personally delivered or
sent by first class mail to the Grantor and the Grantee respectively at the following addresses,
unless a party has been notified in writing by the other of a change of address:
BooK2605 ',ACE 429
To the Grantor: To the Grantee:
The Wizard's Cauldron Orange County,North Carolina
do John Troy P.O. Box 8181
8411 N.C. Hwy. 86 Hillsborough,NC 27278
Cedar Grove,NC 27231
IN WITNESS WHEREOF,the Grantor and Grantee, intending to legally bind
themselves, Have caused this instrument to be signed in its corporate name by its president, his
signature attested by its secretary and its corporate seal affixed hereto all the date first written
above.
GRANTS '
THE ``tI', CA ,0 P SNLT07
`.,:�� °""','%,,,, JOHN TROY, PRES r1' NT
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N. ((7) C'• d Y /
n [Ti !fa''y •
.`a v 1�1Ard •L. (CORPORATE SEAL)
i'1,0 S cret,` n,�, :: /
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r��`°ApBk ',\�. GRANTEE:
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ORANGE CC / , NORT AROLINA
BY: /%_i ____--....V
JO Y'. LINK, JR., Or ge County Manager
Attest:
BY: a % . / A /r! � /,%/
:EVERLY A/:LYTHE, Cle 'of the
Board of Commissioners
•
BOOK26O5 PACE 430
Acknowledgments
STATE OF NORTH CAROLINA
COUNTY OF (Admit
I,
D OWL& . LU.rtf.�pv ,Notary Public of the County and State
aforesaid,certify that &rot Troy personally came before me this da ,and
acknowledged that he or she is / Secretary of The Wizard's Cauldron0"'Rorth
Carolina Corporation,and that by authority duly given and as the act of the corporation,the
foregoing instrument was signed in its name by its president,sealed with its corporate seal and
attested by him or her as its Secretary.
Witness my hand and notarial seal,this the cZg'r'R day of M, ,204A.
NOTARY PUB,C , o� E I.UIN,9p
9
My commission expires: -I O(
'ego-�a
atrst.tG
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
I,a Notary Public of the County and State aforesaid,certify that Beverly A.Blythe personally
came 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 said County,the foregoing
instrument was signed in its name by John M.Link,Jr.,the County Manager,and attested by her as Clerk
to said Board of Commissioners.
Witness my hand and official stamp or seal,this the 4:71 day of ' e2,.a ,20 2-
Notary Public
My commission expires:
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1sg', iecounty\Conservation Wizard
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EXHIBIT A
PIN #9849-68-9257
Tax Map 2 .13 . .5F
BEING ALL THAT certain tract or parcel of land, containing 4 . 96
Acres, more or less, as shown on plat of survey entitled PROPER'
OF THE WIZARD'S CALDRON, LTD. dated November 6, 2001 by ENT Land-
Surveys, Inc.
The above described tract is that same property described by deed
recorded in Deed Book 830, Page 141 of the Orange County Registry.
BOO 2605 PAGE 431
A g [1:- i
17 F.:JI .-' 52
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-4'ott h e a o`°�
Joyce H. Pearson
Register of Deeds
Orange County
North Carolina
FILED
31 MAY 2002, at 12: 03: 23pm
Book. 2605, Page 422 -- 431
Joyce H. Pearson
Register of Deeds,
C]r a n g e County, N. C.
State of North Carolina, County of Orange
The foregoing certificate/s of Donna E. Lunsford & Evelyn M. Cecil,Notary/Notaries Public for
the Designated Governmental units is/are certified to be correct. See filing certificate herein.
This day May 31, 2002 �J
JOYCE H. PEARSON, REGISTER OF DEEDS By: c'. •p_,A
Deputy/Assislaitt Register of Deeds