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HomeMy WebLinkAboutAgenda - 09-12-2006-6cORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 12, 2006 Action Agenda Item No. ~-~... SUBJECT: Resolution of Approval and Acceptance of Grant -Agricultural Conservation Easement with Vickie and David McKee DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENT Resolution of Approval Location Map Site Map Draft Conservation Easement INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2591 PURPOSE: To consider a resolution to approve the acceptance by Orange County of an agricultural conservation easement from Vickie and David McKee and the acceptance of a grant from the federal Farm and Ranch Land Protection Program. 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 800 acres of natural areas and other resource lands have been protected by other means. In July 2004, Orange County, in cooperation with the Orange NRCS/Soil and Water Conservation District Office, applied far matching funds from the federal Farm and Ranch Land Protection Program to purchase non-agricultural development rights for an approximately 92-acre tract of farmland owned by Robert and Martha Kirk, Grant funds were awarded to Orange County in June 2004, In early 2005, the land was sold by Robert Kirk, Vickie McKee's father, to Vickie and David McKee, The McKees intend to restore the property to active farm use. The farm is located on the south side of Bradshaw Quarry Road (Bingham Township) and is bordered on three sides by Cane Creek and a Cane Creek tributary stream, Both streams flow south to the Cane Creek Reservoir located two miles downstream. Since acquiring the property, the McKees have made several improvements to the land, which had been out of active farm use for several years. The McKees intend to farm the land with a combination of row crops, garden plots, pastureland, and related activities, including a potential corn maze, animal petting area, and picnic tables. The McKees have operated a similar farm with a corn maze for several years in Little River Township. ERGD Staff and the County Attorney have worked with the McKees to prepare an easement document that meets the family's 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. z The MaKees will reserve two potential future residential lots (each 2 acres) outside of the easement area, within the forested non-farmland portion of the property. The easement would permanently protect the rest of the property for farm use. There are currently no buildings or structures an the property. The McKees would be allowed to construct a new residence and farm related buildings within a designated "farmstead area", Future farm activities would need to be in accordance with a Conservation Plan prepared for this site by the Orange Soil and Water Conservation District, The easement will also allow a future section of the planned NC Mountains to Sea Trail to pass through the wooded portion of the property, along Cane Creek, at such point as that trail exists. All other future non-agricultural development rights would be extinguished through the easement, Easement monitoring will be accomplished by ERCD staff 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: An appraisal was conducted by Analytical Consultants to determine the market value of the development rights that will be removed from the land. The purchase price for the easement is estimated to be $600,000. The exact amount will depend on the amount of land in the conservation easement and will be calculated by multiplying the number of acres times $5,903 per acre. Including survey and other transaction costs, the total cost of the project is approximately $612,000, with $273,161 of this amount to be reimbursed by the federal Farm and Ranch Land Protection Program. The County's share of the cost (approximately $285,162) would come existing funds that are part of the $3.0 million in alternative financing for conservation easements approved by the Board of Commissioners in FY 2002-03, The Budget office will bring a Capital Project Ordinance for this project forward in an upcoming budget amendment. RECOMMENDATIONS: The Manager recommends that the Board: 1. 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 by October 31, 2006, and 2, Authorize the County acceptance of a grant of $273,161 from the federal Farm and Ranch Land Protection Program for the McKee conservation easement, ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural Conservation Easement between Orange County and Vickie and David McKee WHEREAS, Orange County has an adapted 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, the McKee farm includes approximately 92 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, 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 approximately 92 acres of this farm provides awin- win scenario -ensuring the preservation of this farmland for future generations, compensating the McKee family for this long-term commitment, and establishing a lasting legacy for both the Kirk and McKee families; 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 Vickie and David McKee; 2) approve the execution of this conservation easement agreement with Vickie and David McKee, 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 November 30, 2006. This the 12th day of September, 2006. Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board / ~1 _ O - r. } ,f i r. a[! <: ,V 4` `~': '- '' i ____f 1 :~ ~ ~ g~~" 0 U.5 l Mfrs T --....__-... ,_ ~: Orange County -~- M ~ Kee Farm Environmom & tieswrce O ~ , Conse:va~ion DUpatlmen~ ^~~°°°= 9r„r°5 Vicinity Map _ _ __ Ag )cr ultural C.'onservation Easement Vickie & bavid McKee +/- 92 Acres Q McKce bouedary ~ 5cmrclary wnserwtion wrndvr Porwl Oourdary ®Fvrmtteod Arco ,~ Strrams O Poicntivl Fuiwe RcsidcnLal Envelopes Q Primary mnscrwtion (excluded from wnscrwrion cascmeni) mrridor -Future Across Road P/ Future Mouniaire to Seo Trail Carritlor Q t W _~U w_ 1DJ Fs~ 4 h w ~ En .ne i+ d 4 ~' Gmv~.v~m [nw+ ~~~ ~ xda<~ eeioe \ McKee Agricrrlkrr°al Conservation Easement Draft #4 (BOCC) This instrument prepared by and return to: Geofrrey E Gledhill, Coleman, Gledhill, IIargrave & Peek, P C„ P O. Drawer 1529, Hillsborough, NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF AGRZCUZ,TLIRAL CONSERVATION EASEMENT This Deed of Agricultural Conservation Easement ("Conservation Easement") is granted on this _ day of , 2006, by VICICIE K. MCKEE, and husband DAVID MCKEE, having an address of 5011 IGger Road, Rougemont, NC 27572 (referred to as "Grantors"), to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (referred to as "Grantee"). WHEREAS: 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 _ acres of land, located in Bingham Township, Orange County, North Carolina and identified as on the plat of property titled " ," prepared by , P,L.S., which plat is recorded at Plat Book _, Page _, Orange County Registry (PIN 9841-16-0766). The Property includes 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 "NRCS" or "the United States"). It is the primary purpose of this Conservation Easement to protect the agricultural soils and agricultural viability and productivity of the Property. The Property also includes outstanding woodland and riparian habitats for a variety of wildlife species of importance to the Grantors, the people of Orange County and the people of North Carolina, Cane Creels and a tributary stream known as Hog Branch flow within the Page 1 of 18 t4lcKee Agricultural Consen~atiou Easement Draft #4 (BOCC) Property generally southward to the Cane Creels Reservoir, a water supply reservoir for the towns of Carrboro and Chapel Hill. The entire property is within the Cane Creels Protected Watershed,. Furthermore, the Property contains notable scenic qualities that can be enjoyed by the general public, namely the views along Bradshaw Quarry Road (State Road 1115) and along a future North Carolina Mountains to Sea trail corridor along Cane Creek, It is a secondary purpose of this Conservation Easement to protect these natural and scenic and recreational resources.. The agricultural resources, including flee protection of soils, and natural, wildlife habitat, and scenic and recreational 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 maybe 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 cleazly delineated goverrunental conservation policies: (1) Sections 12.38 H and 1238 I of the Food Security Act of 1985, as amended, which authorizes the Farm and Ranch Lands Protection Program, administered tluough 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 ofNorth 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;" Page 2 of 18 ~LlcKee Agrlcultttr'al Conservation Basement Draft #4 (BOCC.) (3) North Carolina General Statute 106-58.3 et seg., which states that "It is declared to be the policy of the State of North Carolina to promote the eff cient 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) Zhe Uniform North Carolina Conservation and Historic Preservation Agreements Act, North Carolina General Statute 121-34 et seq., which provides that conservation agreements ar'e "interests in land" which maybe effective "perpetually;" which provides for' the enforceability of restrictions, easements, covenants or conditions "...appropriate to retaining land or water areas predominantly in their natural, scenic, or open condition or in agricultural, horticultural, farming or forest use...,;" and which provides for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvement less any reduction in value caused by the agreement;" (5) The establishment of the North Carolina 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 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 Residentiah 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 and 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, 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 ofNorth 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 forth: Page .3 of 18 McKee Agr"icultural Conservation Easement Draft #4 (BOCC) ~./ 1. Grant of Agricultural Conservation Easement v 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 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 aze 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, 1. Statement of Propose It is the primary purpose of this Agricultural Conservation Easement to enable the Property to remairi 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 Grmrtor°s 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 Act of God 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 bylaw. Page 4 of 18 McKee Agricultural Conservation Easement Draft #A (BOCC) 10 4, Right to Farm Grantors retain the right to farm, or to permit others to farm the Property, consistent with the conservation valves of the Property and in accordance with applicable local, state and federal laws and regulations. Subject to the terms of this Agricultural Conservation Easement, farming, grazing, horticultural and animal husbandry operations, and "Agri-tainment" activities 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. For purposes herein, the term "Agri-tainment" shall be broadly defined to mean those farming activities and traditional rural activities enjoyed by the public including, but not limited to: hayrides, petting zoos, corn mazes, community gardens, seasonal festivals, square dances, and the like that have minimal negative impacts upon the environment and the conservation values of the property and are limited to "de minimis" access to and uses of the Property. Internal Revenue Code Section 203.1(c)(8)(b) Cattle and other livestock are allowed to exist and to graze on the Property, but only outside of the "Primary Conservation Corridor" and the "Secondary Conservation Corridor"-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 off ce 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, except there is hereby granted to Grantee a pedestrian easement for a future North Carolina Mountains to Sea pedestrian trail corridor, which corridor is shown on Exhibit B, and as described in Paragraph 7(e). With the exception of the North Carolina Mounts to Sea trail corridor, this Conservation Easement does not create any rights of the public in, on or to the Property.. 6. Right to Use the Property for Custontar~}~ Rzn•al Eraternrises Grantors retain the right to use the portion of the Property within the "Farnrstead Area" (which contains approximately five 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, farm machinery repair, sawmill, firewood distribution, for educational programs, and for an agricultural meeting/training center, 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 Page 5 of I8 McKee Agrictrltau al Conservation Easement Llraft #4 (BOCC) It 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 pemrission unless Grantee determines that the proposed use will not diminish or impair the conservation values of the Property. 7. Procedure to Construct Buildings and Otlrerbupr•ovements 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 maybe built on the Property for purposes of reasonable and customary management of livestock and wildlife or to fence off the perimeter of the Property without any further permission of Grantee. (b) Sd•uctures ~ bnprovements -There are no structures existing on the Property as of the date of this Agricultural Conservation Easement. New buildings, including barns, sheds and other structures and improvements to be used primarily for agricultural purposes (including the processing or sale of farm products predominantly grown or raised on the Property) maybe built on the Property without any further permission of Grantee provided they are located in the "Farmstead Area," as shown on Exhibit B.. Structures, improvements and other impervious surfaces located in the "Farmstead Area," shall not exceed 6 percent of the total area of the "Farmstead Area" or result in exceeding the total 2 percent impervious surface limit on the Property. Impervious surface shall be defined as any material which covers land and inhibits the percolation of storm water directly into the soil, including, but not limited to, buildings, roofing, the area covered by pernanent or nonpermanent structures, macadam and pavement, concrete and stone driveways and parking areas, including structures that are either permanent or temporary, Any new 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) Fm m 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 Page 6 of 18 McKee Agricultural Conservation Easement Draft #4 (BOCC) and marked as the "Farmstead Area" identified on Exhibit B. At the time that constnrction of ~a such struchrre is to commence, Grantee shall be notified so that its records can be updated.. (d) Single-Family Residential Dwellings - No residential dwellings exist on the Property as of the date of this Conservation Easement. One (1), but not more than one, new single-family residential dwelling, not exceeding 4,000 square feet in floor area, together with reasonable appurtenances such as garage and sheds, may be built within the area identified as "Farmstead Area" on Exhibit B. Nothing about Orange County's participation in or the signing of this Deed of Easement constitutes approval of the permitting of this residential dwelling. All appurtenant structures shall be contained within the building envelope and within the "Farmstead Area.." At the time construction of such dwelling is to commence, Grantee shall he notified so that its records can be updated. No other residential dwellings may be built on the Property except for that which is authorized in Paragraph 7 (c) of this Conservation Easement. (e) Recreational Lrrprovements -Grantors expressly reserve the right to engage in recreational activities requiring no surface alteration of the land and posing no tlueat to the conservation values set herein such as hunting, fishing, hiking, bird watching, and those activities described as "Agri-tainment" in Paragraph 4 and to control access of all persons for these purposes; provided that these activities are consistent with the public's use, as hereafter defined by agreement of the Grantors, the Grantee and the United States, of the designated North Carolina Mountains to Sea pedestrian trail corridor as shown on Exhibit B, and 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. Motorized vehicles, including off-road vehicles, are allowed on the Property only if they are used for farming, wildlife management/maintenance purposes, approved "Agri-tainment" activities, or for accessing the "Farmstead Area" described in Paragraph 7 of this Conservation Easement.. (~ Utility Services and Septic Systenss -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 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. Page 7 of 18 McKee Agr-icttltzo°al Conservation Easement 8. Subdivision Draft #4 (BOCC) ~ ?) The Property currently consists of a portion of one single tract. The further subdivision of the Property, including its partition, is prohibited except as maybe 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 constntcted that requires Orange County subdivision approval, the subdivided lot shall, so long as this Conservation Easement is applicable to the Property, remain in the sanle 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 pazcels. 9. Conservation Practices As required by Section 12.38 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 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 MRCS Field Office Technical Guide standards and specifications. MRCS 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, MRCS 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- compliancewith the Conservation Plan, (b) NRC.S has worked with the Grantors to correct such noncompliance, and (c) Grantors have exhausted their appeal rights under applicable NRCS regulations. Page 8 of 18 McKee Agricultural Conservation Gasenient Draft #4 (BOCC) ~~ If the NRCS standards and specifications for highly erodible land are revised aRer the date of this Grant based on an Act of Congess, NRCS will work cooperatively with the Grantors to develop and implement a revised Conservation Plan. The provisions of this section apply to the higlily 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 maybe or may become subject. 10. Fa•estMmcagenrent Everywhere on the Property, trees maybe removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property daznage, to remove non-native species, for pasture restoration, for firewood and other non-commercial uses, including construction of permitted improvements and fences on the Property, so long as done in accordance with the Conservation Plan referenced in Paragraph 9 of this Conservation Easement and in accordance with a forest management plan 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 hazvesting of trees, may be undertaken only if it occurs outside of the Primary Conservation Corridor as it is described in Paragraph 4 of this Conservation Easement, and it is in accordance with the Conservation Plan and forest management plan refer-ed to in this Paragraph 10. The clear cutting of trees within the Secondary Conservation Corridor is prohibited. Within the "Farmstead Area" identified on Exhibit B, trees may be planted, harvested and removed 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 1 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 Consb acction Construction and maintenance of farm roads that maybe reasonably necessary and incidental to carrying out the improvements and uses permitted on the Property by this Page 9 of 18 McKee Agricultural Consetvatiotz Easement Draft #4 (BOCC) ~~ Conservation Easement are permitted.. No roads constnrcted 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 sul?ject to impervious surface requirements in Paragraph 7,. 13. Dumping and T~ ash 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-fazm 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,. 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. 1.5. Natural Resource Restoration atul 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 NRCS, 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 bolder 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 conforn~ to applicable Orange County zoning, subdivision and building code regulations. Page 10 of 18 McKee Agriczdtza°al Conservation Easement Draft #4 (BOCC)~ 1(~ 17.. Ongoing Responsibilities of Grantors and Gr°antee 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) Up/ceep 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 Properly, 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 L:denmifrcation -- 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 darnage relating to the Property, or any claim thereof; unless due to the negligence of Grantee or agents of Grantee, in which case liability shall be as provided by law, In addition, Grantors agree to maintain liability insurance covering the Property with the limits as follows: (i) $300,000 per person for personal injury or death, 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. ExtirzguisTvnent ofDevelopnzent 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 tluough Page 11 of 18 McKee Agr~icaZtzu•al Conservation Easement Draft #4 (BOCC) ~ -~ ,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. 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 Depaztment 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 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 AMERICA. 20, Transfer of Consernatiorz 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. l h T~°ansfer 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 Page 12 of 18 McKee Agricultural Corrser~~ation Easement Draft #4 (BOCC) J 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. 2.2. An:errrlment oJConservation Easement This Conservation Easement maybe 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 as provided herein, 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) ofthe IIZS regulations, Grantee shall be entitled to seventy-three percent (73%) of the net sale proceeds (equal to the ratio of the appraised value of this Conservation Easement to the rrmestricted fair market value of the Property, as these values are deternrined on the date of this Conservation Easement), 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 betaken, on all or part of the Property, by any authorized public authority, said authority shall be liable to Grantee for the value of the property right vested in Grantee at the time of'tlre 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 full 11 any of the conservation purposes of Page 1.3 of 18 McKee Agricultural Conservation Easement Draft #4 (BOCC) j~ this Conservation Easement on all or part of the Property, the Conservation Easement maybe 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 1170A-14(g)(6) of the IRS regulations, Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at seventy-tluee percent (7.3%) 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 ofthe 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.. 1.5 bzterpretation 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; Sever•ability 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. Z7. Merger The Parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Property. Page 14 of IS McKee Agricultural Conservation Easement 28. Notices Draft #4 (BOCC) a p Any notices required by this Deed shall be in writing and shall be personally delivered or sent by first class rnail 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: Vickre and David McKee Orange County ERCD 5011 Kiger Road PO Box 8181 Rougemont, NC 27572 Hillsborough, NC 27278 29. Gr'antor's Title Wan°may To the United States NRCS: 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 Prroperty 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. 31. Subsequent Easemer:ts/Restrictions on the Prroperty 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 Gr°antors'Envirwzmeutal Warranty "Environmental Law" or "Envirorunental 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.. Page IS of 18 McKee Agricultural Couseivatiou Easement Draft #4 (BOCC) ~ ] "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 enviromnent. Grantors warrant 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 goverrunental authority of any violation or alleged violation of, non-compliance or alleged non- compliancewith 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 thueatened 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 Grantors 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, 3.3. Entn~e 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. 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-recordrt at any time as maybe 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.] Page 16 of IS McKeeAgricultur°al Conservation Easement Dr°aft #4 (BOCC) ~~ IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above.. GRANTORS: Vickie Kirk McKee David McKee Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Barry.Iacobs, Chair Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners ACCEPTANCE OF PROPERTY INTEREST BY THE NATURAL RESOURCES CONSERVATION SERVICE The Natural Resources Conservation Service, an agency of the United States Government, hereby accepts and approves the foregoing Deed of Conservation Easement, and the rights conveyed therein, on behalf of the United States of America. Authorized Signatory for the NRCS Page 17 of 18 McKee Agricniko~al Conservation Easement Draft #4 (BOCC) a~ Acknowledgments NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public for said County and State do hereby certify that and husband personally appeared before me and acknowledged the due execution of the foregoing instrument. Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE 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 Barry Tacobs, 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: Page 18 of 18