HomeMy WebLinkAboutAgricultural easement and Warranty Deed - Fickle Creek Farm20$71208:000240940 D D
Bk:RB6400 Pg:42
12/08/2017 112 55 21 PM 1)22
FILED Mark Chilton
Resister of Deeds 01'ange CO,NC
Recordin2i Fee J54 00,
NC Real --state X $172,00 9d'
This instrument prepared by and return to John L, Roberts, Office of the Orange County Attorney
I Box 8181, Ffillsborough, NC 27278
Revenue Stamps: C) 0
WARRANTY DEED
OF AGRICULTURAL CONSERVATION EASEMENT
This Deed of A riculturall Conservation Easement (hereinafter "Conservation Easement")
is granted on this 4'day of 2017, by FICKLE CREEK LAND CO., LLC, a
North Carolina Limited Liability Comp,ariy, having an address of 4122 l uckhom Road, Efland,
NC 27243, (referred to as "Grantor"), to ORANGE COUNTY, NORTH CAROLINA, having
an address of Post Office Box 818 1, Hillsborough, NC 27278 (referred to as "Grantee"').
The designation Grantor 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.
UNRIMM
Grantor is the sole owner in fee simple, of certain farm Property (hereinafter the
"Property"), which consists of approximately 24.94 acres of land, located in Cedar Grov
Township, Orange County, North Carolina and identified as Lot I (PIN 9827-80-9816) an as
*Lot 2 (PIN 9827-F-2-3692) on the plat of property titled "Conservation Easement Survey for
Fickle Creek Land Co,, LLC" prepared by RS, Jones & Associates, Inc. Land Surveyors, which
plat is recorded at Plat Book It% Pagel-5 Orange County Registry, hereafter referred
to as "the recorded Plats, for this Conservation Easement."
'rhe Property consists, primarily of productive agricultural land. All 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"),
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The property includes Center Stream that flows, generally northwest into nearby Back Crcek and
eventually to the City of Mebane public water supply. The entire Property is located within the
designated Back 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 Back Creek Protected Watershed,
-rhe Property also includes riparian and woodland habitats for a variety of wildlife species
of importance to the Grantor and Grantee, the people of Orange Comity and tile people of North
Carolina, Furthermore, the Property contains outstanding scenic qualities that can be enjoyed by
the general public, namely the views along High Rock Road, 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
farinland soils, a public water supply, natural and wildlife liabitat, 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 Grantor, and acknowledged by both parties to be accurate as
of the date of this Conservation Easement, This Report may be used by the Grantee to document
any future changes in the use or character of the Property in order to ensure the terms and
conditions of this Conservation Easement are fulfilled, 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 Grantor 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 Grantor arid Grantee agree that the current agricultural use of and improvements to,
the Property are consistent with the conservation purposes of this Conservation Easement,
The Grantor intends that the Conservation Values of the Property be preserved and
maintained, and further, Grantor intends to convey to 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:
(1) Sections 1238 H arid 1238 1 of the Food Security Act of 1985, as amended, which
authorizes the Farm and Ranch Lands Protection Program, adininistered through the United
States Department of Agriculture, Natural Resources Conservation Service, which provides
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funds for the acquisition of Conservation Easements, or other interests in prime, unique, or other
productive soils for the purpose of limiting conversion to tionagricultural uses of the land;
(2) North Carolina General Statute 139-2 el 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 ofthese 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 el 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 ofour people and to pronnote 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 121434 el 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 ofthe land and improvernent, 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 Clean Water Management Trust Fund, authorized by NCG, S § I 13A-251 el, seq.,
which finances projects to acquire land and interests in land, including conservation easements
for the purposes ol'providing environmental protection for surface "raters and urban drinkir)g
Water Supplies;
(7) 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;
(8) the special use assessment of farm and forestland as set forth in NCGS § 105-277.2 el
se,q,, which allows for lower property tax rates for land enrolled in active agricultural uses;
(9,) 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."';
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(10) The Orange County Agricultural Development and Farniland Protection Plan,
adopted November 17, 2009, which reconnuends that the County acquire agricultural
conservation easements to help protect farmland as a valuable natural resources; and
(11) The zoning of the Property by Orange County as Agricultural Residentialand
Back Creek Protected Watershed, the latter to help protect the public water supply watershed of
Graham-Mebane Lake.
Grantor and Grantee have the common purpose of protecting the above-described
Conservation Values and current condition of the Property and preventing conversion of the
Property to nonagricultural uses. Grantor agrees to create and implement a conservation plan
(hereinafter the "Conservation Plan") that is developed utilizing the standards and specification
of the NRCS field office technical guide and 7 CF R 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, is a body politic existing under Chapter 153 , of the North Carolina
General Statutes, and is qualified to hold conservation easements under the applicable laws of the,
State of North Carolina;
NOW "T for the reasons given arid other good and valuable consideration,
and in consideration of the mutual covenants, terms, conditions and restrictions contained herein,
and as an absolute and unconditional gift, the Grantor hereby grants and convey unto Grantee, its
successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina,
a Conservation Easement of the nature and character and to the extent hereinafter set forth, in
respect to the Property;
forth:
The terms, conditions and restrictions of the Conservation Easement are as hereinafter set
1, Grant oJ"Conservation Easemenl,° ExIinguishment qI'Developmeet Righu
Grantor hereby voluntarily grants and convey to the Grantee, and the Grantee hereby
voluntarily accept, a perpetual Conservation Easenient on the Property, which easement is an
immediately vested interest in real property the nature and character described herein, Grantor
promises 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. Grantor authorizes the
Grantee to enforce these covenants in the manner described below,
Grantor hereby voluntarily grants and conveys to the Grantee all development rights for
the Property, except as otherwise reserved and provided by the terms of this, Conservation
Easement, that are now or hereafter inherent in the Property. The parties agree that such
development rights are now terminated and extinguished, and may not be used on or transferred
to any other property adjacent or otherwise, nor used [or the purpose of calculating permissible
lot yield of the Property or any other property by anyone or any entity, including the Grantee,
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2, S'latepnent ()J'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 riparian areas and surface waters associated with the stream
tributary to Back Creek froin 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 the
stream tributary to Back 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 priniary purposes stated above, it is within the purpose ofthis
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 Grantor's Property
in perpetuity-, and it is enforceable: by the Grantee against the Grantor, its representatives, heirs,
successors and assigns, lessees, agents, and licensees,
3'. Rights and Responsibilities Retained by Grantor
Notwithstanding any provisions of this Conservation Easement to the contrary, the
Grantor reserves to and for themselves and their successors all customary rights and privileges of
ownership, including the fights 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 Grantor to take any action to restore the condition
of the Property after any natural disaster or other event over which lie had no control. Grantor
understands 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
Grantor retains the right to ;faun, or to permit others to farm the Property, consistent with
the Conservation Values ofthe Property and in accordance with applicable local, state and
federal laws and regulations.
Subject to the terms of this Conservation Easement, fanning, 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."
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Cattle and other livestock are allowed to exist and to graze on the Property, except within
a 200-fbot-wide stream buffer, which is 100 feet wide on ci ther side of the stream as measured
from the center of the stream and perpendicular to the stream, the location of which is identified
and marked on Exhibit A. The existing fenced stream crossing is allowed as shown on the map
in Exhibit A. Exhibit A is a copy ol'a GI S 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. Flash grazing may be permitted
in the 200 foot riparian buffer to help manage riparian area vegetation or as otherwise allowed as
a the Prescribed Grazing (Acre) (528) best management practice in its most up to date version
available from the USDA ARC'S -, Fencing intended to keep cattle and other livestock out of the
200-foot stream buffer shall be installed no later than six months after the signing of this
Conservation Easement.
The aforementioned stream buffer shall be maintained in its natural condition and
restricted from any development that would impair or interfere with the Conservation Values of
the Property.
5. Right to Privacy
Grantor retains the right to privacy and time 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 Properly .for Customary Rural Enterprises
Conducting customary rural enterprises, including agritourisni activities, 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 perniission unless the Grantee determines that the proposed
use will not diminish or impair the Conservation Values of the Property.
Procedure to Construct.Buildings and Other Improvements
The Grantor's 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 Grantor 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,
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(b) "truclures & Improvements - There are no structures existing on the Property as
of the date of this Agricultural Conservation Easement. Any new buildings, structures or
improvements shall be for agricultural purposes only and may be built only with the advance
written permission of the Grantee, 'rhe Grantee shall not give such permission 'unless they
determine that the proposed building, structure or improvement would not diminish or impair tile,
Conservation Values of the Property or otherwise [Y.- inconsistent with this Conservation
Easement,,
(c) dingle-Fanfily Residential Avelfings - No residential dwellings e; ist on the
Property, One (1)�, but not more than one, single-family residential dwelling, together with
reasonable appui-tenant Structures, such as garages, sheds, and septic systems may be built on the
Property within a one-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 casement, 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 this Deed of Easement constitutes zoning or subdivision
approval or the permitting of these residential dwellings and their appurtenant structures.
(4) Recreational Improvetnents .-- Grantor expressly reserves the right to engage in
low impact, non-developed recreational activities requiring no surface alteration of the land and
posing no threat to the Conservation Values set herein such as hunting, fishing, hiking and
camping, and to control access of all persons for these purposes, except the general public shall
not be allowed to participate in these activities; 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 circurnstances, 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 heed of Easement constitutes zoning or the permitting of
these recreational improvements and their appurtenant structures,
utility Services and .Sej)1icSys1enis - 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
peraii tied herein, and the right to grant easements over and under the Property for such purposes,
is permitted. Grantor shall not permit or grant easements for utility transmission or distribution
facilities or systems without the written consent of the Grantee. Maintenance, repair or
improvement ofa septic system(s) or other underground sanitary system that exists on the
Property at the tirric of this Conservation Easement, or the construction of a septic or other
underground sanitary system, or the benefit of any of the improvements permitted hereinand if
necessary to serve the existing or replacement) residential or commercial Uses located
immediately ad.jacent to the Property on the properties identified as Orange County PIN 9827-91-
4605 and 9827-90-3609, is permitted. , All other utilities are prohibited on the Property. Cellular
communication towers or structures are prohibited on the Property.
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8. Subdivision
The Property currently consists, of two separate parcels of land identified as Lot I and Lot
2 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
two (2) 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 two 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.
9, Conservalion,Praclices
All agricultural operations on the Property shall be conducted in a manner consistent with
the requirernents 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
NI CS Field OfficeTechrrical Guide and 7 CF R Part 12 that are in effect on the date of execution
of this Conservation Easement, The Grantor may, however, develop and implement a,
Conservation Plan that proposes a higher level of conservation and is consistent with the NRCS,
Field Office 'rechnical Guide standards and specifications. Copies of the Conservation Plan shall
be kept on file in the office of the Orange Soil arid Water Conservation District and shall be
provided to the Grantor and Grantee, The Conservation Plan may be updated from time to time
by mutual agreement of the NRCS and the Grantor, NRCS and the Grantee shall have the right
to enter upon the Property, with advance notice to the Grantor, in order to monitor compliance
with the Conservation Plan.
In the event of noncompliance with the Conservation Plan, the Grantee shall work with
(lie Grantor to explore methods of compliance, Grantor shall be given a reasonable amount of
tinic, not to exceed twelve months, to take corrective action. If the Grantor does not comply with
the Conservation Plan, NRCS will infonn the Grantee: of the Grantor's 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
Grantor to correct such noncompliance, and (c) Grantor has 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 Grantor to correct such non-
compliance, Grantee may proceed to take all reasonable steps to secure compliance.
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,I O� 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 mith 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 Farrn) 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).
Trees may be planted, harvested and removed within the area identified and marked as
the one-acre future "Residential 1- nvelope" once its location has been designated, all without the
,advance written permission of the Gnantee.
11. Alining
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 Nvith
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 Construclion
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.
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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 ExhibitA, 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.
14. Water Rights
Grantor shall retain and reserve the right, consistent with federal, State and local laws and
regulations,, to use any appurtenant water rights sufficient to maintain the agricultural
productivity of the Property. Grantor shall not transfer, encumber, lease, sell or otherwise
separate such water rights from title to the Property itself.
15. Natural Resource Restoration and Enhanceinew Activities
Notwithstanding any terms contained within this Conservation Easement, Grantor may
engage or contract others, to engage in any activity designed to repair, restore, or otherwise
enhance the natural resources found or once present on the Property, that are consistent with the
Conservation Values of this Conservation Easement and subject to the written approval of 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 Responsibifilies ref Grantor and Grantee
Other than as specified herein, this Conservation Easement is not intended to impose any
legal or other responsibility, our 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.
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(b) Upkeep and Maintenance - The Grantor retains all responsibilities and shall bear
all costs and liability of any kind related to the ownership, operation, and upkeep and
maintenance of the Property, including maintenance of all fencing and other structures and
facilities necessary to comply with the terns 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. Grantor will remain
responsible for upkeep, maintenance, and repairs to any impoundments located on the Property.
Liability and h2denin t fication - - Grantor agrees to indemni fy 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 injiury, accidents, negligence or damage relating to
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's 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, Grantor agrees to maintain liability insurance covering the Property
with minimurn coverage as follows,-. (i) $300,000 per person for personal injury or death,
$300,000 per occurrence, and (ii) $300,000 per occurrence for properly damage; and warrant that
the Grantee are and will remain a named insured on G, rantor"'s property insurance policies
covering the Property. Grantor must add Grantee to the policies within sixty (60) days of closing
and within 10 days of each insurance renewal date.
Grantor 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 lim,itation, 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, Grantor's negligent acts or omissions or Grantor's breach of any
representation, warranty, covenant, at reenients contained in this Conservation Easement Deed,
or violations of any Federal, State, or local laws, including all Environmental Laws.
18. Enfiorcenwnt
With reasonable advance notice to the Grantor or with the Grantor's prior verbal consent,
Grantee shall have the right to enter the Property for the purpose of inspecting for compliance
with the terms of this Conservation Easement. Grantee shall have the right to prevent violations
and remedy violations of the terms of this Conservation Easement through judicial action, which
shall include, without limitation, the right to bring proceedings in law or in equity against any
party or parties attempting to violate the terms of this Conservation Easement. Except when an
ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of
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the Property, Grantee shall give the Grantor written notice of the violation and thirty (30) days to
cure the violation, before commencing any legal proceedings, Grantee may obtain an InJunction
to stop as violation or a threatened violation, temporarily or permanently. The parties agree that a
court may issue an injjunction or order requiring Grantor to restore the Property to its condition
prior to the violation, as restoration of the property may be (fie only appropriate remedy. In any
case where a court finds that a violation has occurred, Grantor shall reimburse Grantee for all its
expenses incurred in stopping, and correcting the violation, including but not limited to
reasonable attorneys' fees. The failure: of the Grantee to discover a violation or to take immediate
legal action shall not bar it from doing so at as later time for that violation or any subsequent.
Violations. In any case where the court finds that there was as complete absence of ajusticiable
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. Tr an#Zr ol'("oriser.anion Easetnent
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 aniended and Under NCGS 121-34 el 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 clualif� Linder Section 170(h) of" the 'U.S.
Internal ReVenUe Code, or applicable state law, as court with jurisdiction shall trtuisfer this
Conservation Easement to another qualified organization having similar purposes that agrees to
assume the responsibility imposed by this Conservation Easement.
M Trans/ r (#'Propeqy
The Grantor agrees to Incorporate by reference the terms of this Conservation Easement
in any deed or other legal instrument by which they transfer or divest themselves of any interests,
including leasehold interests, in all or a portion of the Property, Grantor shall notify the Grantee
in writing at least thirly (30') days bel5ore conveying the Property, or any part thereof or interest
therein. Failure of Grantor to incorporate by reference, the ternis or this Conservation Easenient
in -.in instrument of transfer or conveyance or to notify the Orantee of a transfer or conveyance
shall not impair the validity of this C,onservation Easement or.. limit its enforceability in any way.
2L A mel7dinew qf('on.vervation Easement
This Conservation Casement iiiay be amended only with the written consent of the
Grantee and Grantor, Any, such ainendment shall be consistent with the Statement of Purposes of
this Consciiation Easement and with the Grantee Conservation Easement as 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,
Page 12 of 18
1 � �IJ��I ��11 II111illmilil
RB6400 54 13/22
22. Procedure in the Evenf offerinination of'C"onservation Easement
if determines that conditions oil or surrounding the Property chant so much that it
becomes impossible to fulfill the conservation purposes of this Conservation Easement, a, Court
with jurisdiction may, rat the joint request of both the Grantor and Grantee, terminate or modi(v
the Conservation E",asement created by this Deed in accordance with applicable law. If the
Conservation Easement is terminated and tile Property is sold, then as required by Section l,1
70A- I 4(g)(6) of the IRS regulations, the Grantee shall be entitled as 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 Grantor), 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 tile elate 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
Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
23. Pre)cedure in th Eveni 4,,?f (.7onotinnalion or Difinent Domain
Grantor and Grantee recognize that the partial sale of this Conservation Easeirient gives
rise, to a property right, immediately vested in the Grantee, with a fair market value equal to tile
proportionate value that the Conservation Easement bears to tile, value of the Property prior to the
restrictions imposed by the Conservation Easement,, Accordingly, ifany condemnation or
eminent domain action shall be taken, oil 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 tinge of the signing of this Conservation Easement.
If condemnation or a taking by eminent domain of a part ofthe Property or the entire
Property by as 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. Grantor and Grantee
agree that the Conservation Easement is a currently vested real property right with a value equal
to the proportionate value the Conservation Easement 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 L 170A-14(g)(6) of the
IRS regulations, Grantee shall be entitled to [lie percentage of gross sale proceeds or
condemnation award (rninus any amount attributed to new improvements made after the date of
the conveyance, which amount shall be reserved to Grantor), 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 (lie, proceeds.
If, however, after the condemnation or erninent domain proceedings, a court of
jUrisdiction does not include in the just compensation awarded as a result of the taking the
R86400 55 14122
aniount of the Conservation Easenient value, then the Grantor shall not be responsible to, share
any proceeds awarded.
All condemnation- related expenses, including reasonable attorney fees, , incurred by the
Grantor and Grantee shall be paid out of recovered proceeds prior to distribution of the net
proceeds as described herein,
24, Interprelalion
']"his Conservation Easement shall be interpreted under the laws of the State of North
Carolina, and the laws of the United States, resolving any arribiguities and questions of the
validity ofspecific Provisions so as to give niaximuni effect to its conservation purposes,
25 Perlmival Duration; Severability
`The Conservation Easement created by this Deed shall be as servitude running with the
land in perpetuity, Every provision of this Deed that applies to the Grantor or Grantee shall also
apply to their respective agents, heirs, executors, administrators, assigns, and all other successors
as their interests may appear. Invalidity ofany of the covenants, terr"ns 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 rernain iti full force and effect.
2'0, Merger.
The Parties agree that the teens of this Conservation Easement shall survive any merger
ofthe 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 Girantor and Grantee respectively at the following addresses, unless
a party has been notified in writing by the other of a change of address:
To (fie Grantor.
Fickle Creck Land Co., LLC
211 Fickle Creek Xing
Efl,,,ind, NC 27243
28. Grantor 's Title ff'arrano,
To the Grantee:
Orange County Dept. of Environment,
Agriculture, Parks and 'Recreation
PO Box 8181
FlillsborOUgh, NC 27278
The Grantor warrants 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
Page 14 of' 18
f�IVVI��'.�UIV,'i�IIN611�IIIV Alli
R86400 56 15/22
acceptable and set flurther in Exhibit B to this Conservation Easement, and hereby promises to
defend the sarne against all claims that may be made against it.
29. Subsequent Liens on the Propert.V
No provisions of this Conservation Easement should be construed as impairing the ability
of Grantor to use the Property as collateral for subsequent borrowing. Any Such liens shall be
and remain subordinate to this Conservatkm Easement.
30 Stibsequent Eti,�en,ie�,71,Y.I'I?esti,iclioti.y on the Prope),ty
Thc grant of any easements or use restrictions that might diminish or impair the
agricultural viability or productivity of the Property or otherwise dirninish or impair the
Conservation Values of the Property is prohibited. Any such easements or restrictions shall be
subordinated to this Conservation Easement.
31, Grantor's Environmental It'arremly
Grantor warrants that Grantor is in compliance Nvith, and shall remain in compliance with,
all applicable Environmental Laws. Cirantor warrants that there are no notices by any
governmental authority of any violation or alleged violation of, non- compliance or alleged non-
compliance with or any liability under any Environmental Law relating to the operations or
conditions of the Property. Grantor further warrants that Grantor has no actual knowledge ofa
release or threatened release of any Hazardous Materials, as, such substances and wastes are
defined by applicable federal and state law,
Moreover, Grantor hereby promises to hold harmless and indemnify the Grantee against
all litigation,, claims, demands, penalties and damages, including reasonable attorney fees, arising
frorn 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 as violation of any Environmental
Laws by Grantor or any, other prior o-wner of the Property. Grantor's indemnification obligation
shad not be affected by any authorizations provided by the Grantee to (3rantor 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 11ropeity after the date of this Deed of Conservation Easernea
"Environmental t,aw" or " pnvironniental Laws" means any and all Federal, state, local or
municipal laws, rules,, orders, regulations, statutes, ordinances, codes, guidelines, policies or
req ui rein ents 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 sirnilar env iron menta I health, safety, building and land use as may now or at any time
hereafter be in effect.
Page 1 5 of 18
PRBN'�1
57 16122
"Hazardous Materials" means, any petroleum, petroleum products, fuel oil, waste veils,
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,
SOILItiOl'I or substance which may pose as present or potential hazard to human health or the
environment,
32. Entire Agreement
'11iis instrument sets [earth the entire agreement of the parties with respect to tile
Conservation Easement and supersedes all prior discussions, negotiations, and 'understandingstar
agreements relating to the said casenient,
33. Recordirkg ( hiuse
Grantee shall record this instrument and any amendment hereto in timely fashion with tile
Office or the Register cif Decds 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,
Page 16 of' � 8
i�aiYl���ulp�'tiuu�i hiiroiww
RB6400 58 M22
IN WITNESS WHERE'OF, the Grantor and Grantee, intending to legally bind
then selves, have set their hands on the date first written above.
GRANTOR:
Noah N, Ranells,
Fickle Creek Land Company, LLC
Accepted:
GRAN'TTE:
ORANGE COUNTY, NORTH CAROLINA
. ................. .
BY:
i Chair
Orange County Board of Commissioners
ATTEST:
LX"A
Donna S. Baker,
� Clerk tug the
Board ofCornmissioners
Ack,nowledginents
NORTH CAROLINA
COUNTY OF ORANGE
a Notary Public l> r said County and State do hereby certify
that personally appeared before me and acknowledged the due execution
of the foregoing instrument.
Witness my hand and official stanip or seal this the — day of --, 2017.
My commission expires:
Page 17 of 18
Notary Public
IJpl,l�f 1 1111mill1ilillil
MIJUJI
RB0400 59 18122
NORTH CAROLINA
COUNTY OF ORANGE
............ 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 narne 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 sea] this the +---' day cif _ � 017.
My conmmission expires:
-Tt,,A�e- 7,2-0!q—
zse
Notary Public
(,)FFIICIAL SEAL
ND�iily PuNic, Nckilh Comma
g"Ih Cam1kna
ORANGE COUU
NTY
DAVID HUNT
P
I�I�I��,�g�g�j�llil llihlllMlfl
P86400 62 21/22
[M-10111H
As to both Tracts:
1 11111
11101091 1 1 1 1 111 1111 1111111 M I 101011. w
,As to Lot 1:
Ri ght of way to Piedmont Electric Membership Corp recorded in BoI at Page 5118, Orange County
Registry
Right of way to State Highway Commission recorded in Book 189 at Page 644, Orange County Registry,
I ;
Declaration of Development recorded concurreritty wiht Betty Jane Watters, Subdivisionin; Book 5219 at
Page, 568, Orange County Registry.
IFIFIIIII111111 1 11,1111
Deed of Agficultural Conservation Easernent recorded in Book 2306i at Page 487, Orange County
Registry.
Subject tomatters shown on recorded Plat Book 109 at Page 24; Plait Book 112 ait Page 187 and Plat
Book, 88, Page 104 inducling 60 foot access easement located on the Land.
Restrictions appearing of record; in Book 5813 at Page 472�
01
Rights of others for ingress and egress, purposes in and to the use of ea,semein ) and/or jointdriveway�s)
t(s
0 located on the Land.
I
R86400 61 20122
I
........................
rj
0
low"
Exh,iblit A
Fickle Creek Land Co.,, LLB
Legend I : Conservation Easement N
EDCenter Streams Farm Addition CE Held By Co u nty Existing DrIveway
Potentiall Future Homesite, Area Building Streams + Date: 11/8�/2017
Orange Cown,-
100-ft, Stream Buffer Parceis Streets 1 inch = 3011 feet CH AP'
4�N��IUI.if 1Jt1 11111311 0 1922
IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally hind
themselves, have set their hands, on the date first written above.
Accepted:
ATTEST:
M.
Donna S. Baker, Clerk to the
Board of Commissioners,
NORT14 CAROLINA
COUNTY OF ORANGE
GRANTOR:
Fickle Creek and Co,, LLC
ORANGE COUNTY,N i .TH CAROLINA
By:
Chair
Orang,e County Board of Commissioners
Acknowledgments
1, a Notary Public for said County and State do hereby certify
that Dc,
-A)- "_ personally aeared bef m -ore e and acknowledged the due execution
pp
of the foregoing instrument.
Witness iny hand and official stamp or seal this the day of
A-w-, 2017,
PubF
,t ry
a "VN' 0, F E' """
M,y commas 'ion eAires:
0
Z co z
0,
Us
Page 17 of 18 "0400111111"100
I��IVfll�ll��la�',pl� I�IIIIiIIYIII
R864001 63 22122
North Carolina Conservation Agreement for Orange County Voluntary Agricultural District Program
recorded in Book 5922, Page 3154, Orainge County Registry,
Right-of-Way between Betty W Hill and Piedmont Electfic Membership Corporation recorded in Book
6101, Page 429, Orange County Registry.
As to Lot 2:
1111111111111 111!111, 1111 111111 1 11 1 � 11 1 P 1111111 � I I I I ii? I I
IMP
I
Property description, sertback, sewage disposal, open buming, other restrictions,etc. recorded ini, Book
5219 at Page 568, Orange County Registry.
Joint driveway document recorded' in Book 5219 at Page 565, Orange County Registry-
Easement(sYRIghl of Way to Piedmont Electric Membership Corporafion, recorded in, Book 815 at
Page 618, Orange County Registry.
Subject to Agriculture Conservation Agreement recorded in Book 1083 at Page 61, Orange County
Registry.
Subject to Deed: of Agricultural Conservation Easement recorded in Book 23106 at Page 48:7, Orange
County Regl"Wry.
Rights of others for ingress, and egress purposes in andi to the use • Joint driviewayi locatedi on the
oi Land,
D
jk
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LEGEND
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20171206000240950 AGMT
Bk:RBS400 Pg:64
12108/2017 12:55:22 PM 112
FILED Mark Chilton
Register of Deeds, Orange Co,NC
Recording Fee: $26.00
NC Real Estate TX: $.00
Prepared by and Return to: Brian M. Ferrell, Kennon Craver, PLLC, P.O. Box 51579, Durham, NC 27717 -1579
SUBORDINATION AGREEMENT
This Subordination Agreement is made this day of�,.�(� r 2017 by and between
Carolina Farm Credit, ACA ( "Lender "), Noah N. Ranells, Ben A. Bergman, and Fickle Creek Land Co.,
LLC (collectively, "Owner "), and Orange County ( "County ").
RECITALS:
A. Owner borrowed funds from Lender, which loan is secured by that certain Deed of Trust
executed by Owner in favor of Walter J. Cook, Jr. as Trustee, for the benefit of Lender, dated July 3, 2014
and recorded in Book 5813, Page 478, Orange County Registry, (the "Deed of Trust ").
B. With the express consent of Lender, Owner has encumbered the property that is
encumbered by the Deed of Trust (the "Property "), with that Warranty Deed of Agricultural
Conservation Easement recorded in Book 6#00 , Page County Registry (the
"Easement ").
C. Owner has requested that Lender subordinate the Deed of Trust to the Easement, and
Lender has agreed to the same.
AGREEMENT:
Lender, for good and valuable consideration to it in hand paid, the receipt and sufficiency of
which is hereby acknowledged, does hereby contract and agree with County and Owner that the Easement
shall be superior to Lender's right, title and interest in the Property, that any deed pursuant to foreclosure
of the Property or any portion thereof or any deed in lieu of foreclosure will be subject to the Easement;
and to effectuate said subordination, Lender does hereby release, remise and forever quitclaim unto
County and Owner its right, title and interest in and to the Property and its lien thereon only to the extent
that the liens of the Deed of Trust and Assignment of Rents shall be subordinated to the Right -of -Way
Easement. It is expressly understood and agreed that, except for such subordination, all the terms and
conditions of the Deed of Trust shall remain in full force and effect.
The above recitals are incorporated in this agreement as if fully set forth herein.
PRS6Y,1��;Vp11J,�GOdIiN�NIIVIVN
Lender hereby consents to Owner's grant of the Easement to County, and agrees that such grant is
not a default under the Deed of Trust, or any related loan document, and that Owner has provided all
necessary notice to Lender regarding the encumbrance of the Property with the Easement.
IN WITNESS WHEREOF, Lender has caused this Subordination Agreement to be executed as
of the day and year first above written.
Carolina Farm Credit, ACA
By: ;� (SEAL)
Name: 7B3 ,,,, F oytr}z,,.,, (SEAL)
Title: -{ryt,,r,,=+ (SEAL)
STATEOF NDrF ,4ro11r1q
COUNTY OF A I ( ftjjct✓
I certify that the following person(s) personally appeared efore me this day, each acknowledging to me that he or
she signed the foregoing document: 13( 0,, r F- bEY i-st n
Date:
[Official Seall
Z
it�OiAf?),
STATE OF Noy-t l C"D I t N.a_
COUNTY OFj
[insert name(s) of signatory]
tary PubIi
rint Name:
My commission expires: 12-0/8
i (SEAL)
Walter J. Cook, Jr.
I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or
she signed the foregoing document: W) .1 UcK I OKf/2 .
Date:
[Offic
KC: 366445.1
[insert names) of signatory]
jqd7cC �/l
tary Public
Print Name: -Fi rrit 1. Tm Im K C�►' -� ►' __
My commission expires: (p • 2 D(9