HomeMy WebLinkAboutAgenda - 12-11-2018 8-c - Resolution of Approval – Conservation Easement on Walker Farm and Approval of Budget Amendment #4-A 1
ORD-2018-036
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: December 11, 2018
Action Agenda
Item No. 8-c
SUBJECT: Resolution of Approval — Conservation Easement on Walker Farm and Approval
of Budget Amendment #4-A
DEPARTMENT: Environment, Agriculture, Parks
and Recreation (DEAPR)
ATTACHMENT(S): INFORMATION CONTACT:
1. Resolution of Approval David Stancil, 245-2510
2. Location Map Kim Livingston, 245-2514
3. Site Map
4. Draft Conservation Easement
PURPOSE: To consider a resolution to approve the purchase of and acceptance by Orange
County of an agricultural conservation easement for the Walker Farm, and approve Budget
Amendment #4-A.
BACKGROUND: The acquisition of conservation easements to protect highly important natural
and cultural resource lands in Orange County is a longstanding goal of the Board of
Commissioners, and is a priority of the Lands Legacy program. Since 2001, the County has
partnered with landowners and other entities to protect 2,385 acres of significant natural areas
and prime farmland with permanent conservation easements, leveraging over $3 million in
outside funding and grants toward these easements.
Over the past several years, DEAPR has worked with Norman Walker on a project to conserve
77-acre of his 87-acre farm property located on Guess Road in Little River Township.
The farm property is located in the Little River Protected Watershed, a priority watershed for
acquiring agricultural easements in a dual effort to protect prime farmland and drinking water
quality. The farm has nearly 5,000 feet of stream frontage on the North Fork Little River and a
tributary, which supply drinking water for the City of Durham.
Norman C. Walker intends to grant a permanent conservation easement that will restrict future
development to protect prime farmland and streams, as well as scenic views of the farmland
from Guess Road and Sneed Road. All non-agricultural development rights will be extinguished
through the conservation easement. Future farm activities will be in accordance with a
Conservation Plan prepared for this farm by the Orange Soil & Water Conservation District.
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The planned agricultural conservation easement would be held jointly by Orange County and
the Eno River Association. The easement would complement the technical assistance from the
Orange Soil and Water Conservation District and will also protect stream buffers.
The planned agricultural conservation easement area is depicted on the attached site map. A
draft deed of conservation easement is also provided.
FINANCIAL IMPACT: The easement purchase price is $249,000, which is 100 percent of the
easement value as determined by an appraisal by Kirkland Appraisals, LLC.
DEAPR worked with the Eno River Association to identify the following funding sources:
Eno River Association $ 30,384 (12%)
City of Raleigh (Upper Neuse Clean Water Initiative) $ 43,016 (15%)
City of Durham (Watershed Protection Program) $ 35,550 (13%)
Orange County (Lands Legacy) $170,000 (60%)
$278,950 (acquisition + transaction)
Funds for the easement purchase would come from Orange County ($166,000 purchase price
plus $4,000 for appraisal and closing costs), Eno River Association ($19,684 purchase price
plus $10,700 for survey, stewardship, and legal fees), City of Raleigh ($43,016 purchase price)
and City of Durham ($20,300 purchase price plus $15,250 stewardship).
The City of Durham recently established a Watershed Protection Program similar to the City of
Raleigh's Upper Neuse Clean Water Initiative (UNCWI). The program is intended to protect
source waters to the Little River Reservoir and Lake Michie. This project is the first funded
project in Orange County under the City of Durham's new program. Raleigh's UNCWI program
has funded several projects in Orange County.
The County's share of funds ($170,000) would come from existing funds budgeted and
approved for the Lands Legacy program (Land Legacy Fund).
The Walker Farm property is enrolled in the Present Use Value taxation program, so the
conservation easement would not lessen the amount of property taxes paid to the County.
There would be no decrease in the property's market value caused by the conservation
easement (and extinguishing of portion of its development rights) since it would not lower the
property value to a level that is less than the current present use value.
With this allocation, approximately $2.59 million remains available in the Lands Legacy Capital
Project. The following Budget Amendment #4-A provides for the use of the above mentioned
funds, and amends the following Capital Project Ordinances:
Lands Legacy Capital Project (-$170,000) - Project #20011
Revenues for this project:
Current FY 2018-19 FY 2018-19
FY 2018-19 Amendment Revised
Alternative Financing $3,103,972 ($170,000) $2,933,972
From General Fund $42,697 $0 $42,697
Donations $1,000 $0 $1,000
Appropriated Fund Balance $9,337 $0 $9,337
Total Project Funding $3,157,006 ($170,000) $2,987,006
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Appropriated for this project:
Current FY FY 2018-19 FY 2018-19
2018-19 Amendment Revised
Lands Legacy Program $3,157,006 ($170,000) $2,987,006
Total Costs $3,157,006 ($170,000) $2,987,006
Conservation Easements Capital Project ($170,000) - Project # 20006
Revenues for this project:
Current FY 2018-19 FY 2018-19
FY 2018-19 Amendment Revised
Alternative Financing $1,988,132 $170,000 $2,158,132
From General Fund $696,521 $0 $696,521
Donations $1,020 $0 $1,020
NC Agriculture Development $135,480 $0 $135,480
Grant
Eno River Association $252,843 $0 $252,843
Upper Neuse Clean Water $54,000 $0 $54,000
Initiative
NC Conservation Reserve $18,800 $0 $18,800
Program
Contribution from Hillsborough $6,157 $0 $6,157
USDA Farmland Protection $1,936,000 $0 $1,936,000
Total Project Funding $5,088,953 $170,000 $5,258,953
Appropriated for this project:
Current FY FY 2018-19 FY 2018-19
2018-19 Amendment Revised
Conservation Easements $5,088,953 $170,000 $5,258,953
Total Costs $5,088,953 $170,000 $5,258,953
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: ENSURE ECONOMIC SELF-SUFFICIENCY
The creation and preservation of infrastructure, policies, programs and funding necessary
for residents to provide shelter, food, clothing and medical care for themselves and their
dependents.
This farm conservation easement will help ensure that this prime farmland remains available for
cultivation and food production, helping to provide healthy local food to County residents and
others.
RECOMMENDATION(S): The Manager recommends the Board adopt and authorize the Chair
to sign the resolution approving the acceptance by Orange County of the conservation
easement, and authorize the Chair and the Clerk to sign the conservation easement agreement,
subject to final review by staff and County Attorney, with a closing and recordation of the
document expected to occur on or about June 30, 2019, and approve Budget Amendment #4-A.
RES-2018-084 Attachment 1 4
ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION
Approval of Conservation Easement
between
Orange County and the Eno River Association
and
Norman C. Walker
WHEREAS, Orange County has adopted goals that promote the preservation of natural
areas, wildlife habitat, prime farmland, and open space in the county; and
WHEREAS, Orange County established the Lands Legacy Program for the purpose of
protecting the most significant natural and cultural resources through partnerships with
landowners and other conservation entities; and
WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation
easements on prime farmland within water supply watersheds; and
WHEREAS, the Walker Farm property includes approximately 77 acres in the Little River
protected watershed, consisting of a majority of prime agricultural soils, and includes 5,000
linear feet of the North Fork Little River and one of its tributaries that drain to the Little River
Reservoir—a drinking water supply reservoir for the City of Durham; and
WHEREAS, Norman C. Walker, the owner of the Walker Farm property, wishes to grant a
permanent conservation easement to Orange County and the Eno River Association, which
will protect the prime farmland and riparian corridors that exist on the property; and
WHEREAS, a conservation easement on this approximately 77 acres would ensure the
preservation of this farmland and stream buffers for future generations and help compensate
the owner for this long-term commitment;
NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners
does hereby 1) accept on behalf of Orange County the conservation easement for land
owned by Norman C. Walker; 2) approve the execution of this conservation easement
agreement with Norman Walker, in accordance with the terms of the proposed easement
agreement, subject to final review by staff and the County Attorney; 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 June 30, 2019; and 4) authorize County staff to sign any and all closing
documents upon consultation with the County Attorney.
BE IT FURTHER RESOLVED that the Board thanks Mr. Norman C. Walker for his civic-
minded granting of this conservation easement through the Lands Legacy Program.
This the 11th day of December, 2018.
Penny Rich, Chair
Orange County Board of Commissioners
Donna Baker, Clerk to the Board
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Streams Streets 1 inch = 457 feet Date: 4/19/2018
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This instrument prepared by and return to: John L.Roberts,Office of the Orange County Attorney
Box 8181,Hillsborough,NC 27278
Revenue Stamps:
NORTH CAROLINA
COUNTY OF ORANGE
WARRANTY DEED
OF AGRICULTURAL CONSERVATION EASEMENT
This Deed of Agricultural Conservation Easement (hereinafter "Conservation Easement")
is granted on this th day of , 2018, by NORMAN C. WALKER having an
address of 5317 Normans Road, Rougemont,NC 27572, (referred to as "Grantor"), to ORANGE
COUNTY,NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough,
NC 27278 and ASSOCIATION FOR THE PRESERVATION OF THE ENO RIVER
VALLEY, INC., a North Carolina Nonprofit Corporation, having an address of 4404 Guess
Road, Durham,NC 27712, also known as the Eno River Association, (both together referred to
as "Grantee" or"Grantees").
The designation Grantor and Grantees as used herein shall include said parties, their
respective heirs, successors and assigns, and shall include singular,plural, masculine, feminine
or neutral pronouns as required by context.
WHEREAS:
Grantor is the sole owner in fee simple, of certain farm properties identified in Exhibit A
located in Little River Township, Orange County,North Carolina and identified on the plat of
property entitled" prepared by ,
which plat is recorded at Plat Book Page , Orange County Registry, and 77.4 acres
of said farm properties will be covered by this Conservation Easement as shown on said recorded
plat(the "Protected Property").
The Protected Property consists primarily of productive agricultural land. The majority
of the soils on the Protected Property are classified as "prime" or"statewide important" soils by
the Natural Resources Conservation Service, United States Department of Agriculture (also
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referred to as "NRCS"). The Protected Property includes an unnamed tributary of the North
Fork Little River and the North Fork Little River that flows generally southeast into the Little
River Reservoir, a City of Durham public water supply. The entire Property is located within the
designated Little River Protected Watershed.
The primary purposes of this Conservation Easement are to protect the agricultural soils
and agricultural viability and productivity of the Protected Property, and to protect the quality of
surface waters in the Little River Protected Watershed.
The Protected Property also includes riparian and woodland habitats for a variety of
wildlife species of importance to the Grantor and Grantees, the people of Orange County and the
people of North Carolina. Furthermore, the Protected Property contains outstanding scenic
qualities that can be enjoyed by the general public, namely the views along Guess Road and
Sneed Road. It is a secondary purpose of this Conservation Easement to protect these natural
and scenic resources.
The agricultural resources of the Protected Property, and its contribution to the protection
of prime farmland soils, a public water supply, natural and wildlife habitat, and the other
conservation interests described herein to be preserved by this Conservation Easement are
collectively referred to as the "Conservation Values" of the Protected Property.
The specific Conservation Values of the Protected Property and its current use and state
of improvement are described in a Baseline Documentation Report ("Report")prepared by the
Grantees 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 Grantees to
document any future changes in the use or character of the Protected 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
Protected Property if there is a controversy over its use. The Grantor and Grantees 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 and the Eno River Association.
The Grantor and Grantees agree that the current agricultural use of, and improvements to,
the Protected Property are consistent with the conservation purposes of this Conservation
Easement.
The Grantor intends that the Conservation Values of the Protected Property be preserved
and maintained, and further, Grantor intends to convey to the Grantees the right to preserve and
protect the agricultural and other Conservation Values of the Protected Property in perpetuity.
The conservation purposes of this Conservation Easement are recognized by, and the
grant of this Conservation Easement will serve, the following clearly delineated governmental
conservation policies:
(1) Sections 1238 H and 1238 I of the Food Security Act of 1985, as amended, which
authorizes the Farm and Ranch Lands Protection Program, administered through the United
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States Department of Agriculture,Natural Resources Conservation Service, which provides
funds for the acquisition of Conservation Easements or other interests in prime,unique, or other
productive soils for the purpose of limiting conversion to nonagricultural uses of the land;
(2)North Carolina General Statute 139-2 et seq., which provides that"it is hereby
declared ...that the farm, forest and grazing lands of the State of North Carolina are among the
basic assets of the State and the preservation of these lands is necessary to protect and promote
the health, safety and general welfare of its people... it is hereby declared to be the policy of the
legislature to provide for the conservation of the soil and resources of this State;"
(3)North Carolina General Statute 106-583 et seq., which states that"It is declared to be
the policy of the State of North Carolina to promote the efficient production and utilization of the
products of the soil as essential to the health and welfare of our people and to promote a sound
and prosperous agriculture and rural life as indispensable to the maintenance of maximum
prosperity;"
(4) The Uniform North Carolina Conservation and Historic Preservation Agreements Act,
North Carolina General Statute 121-34 et seq., which provides that conservation agreements are
"interests in land"which may be effective "perpetually;"which provides for the enforceability of
restrictions, easements, covenants or conditions "...appropriate to retaining land or water areas
predominantly in their natural, scenic, or open condition or in agricultural, horticultural, farming
or forest use...;" and which provides for tax assessment of lands subject to such agreements "on
the basis of the true value of the land and improvement less any reduction in value caused by the
agreement;"
(5) The establishment of the North Carolina Agricultural Development and Farmland
Preservation Trust Fund established in 1986 (N.C.G.S. 106-744(c) as amended)to preserve
important farmland in North Carolina;
(6)the Clean Water Management Trust Fund, authorized by NCGS § 113A-251 et seq.,
which finances projects to acquire land and interests in land, including conservation easements
for the purposes of providing environmental protection for surface waters and urban drinking
water supplies;
(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 et
seq., 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 Farmland Protection Plan,
adopted November 17, 2009, which recommends that the County acquire agricultural
conservation easements to help protect farmland as a valuable natural resource; and
(11) The zoning of the Property by Orange County as Agricultural Residential and
Little River Protected Watershed, the latter to help protect the public water supply watershed of
Little River Reservoir.
Grantor and Grantees have the common purpose of protecting the above-described
Conservation Values and current condition of the Protected Property and preventing conversion
of the Protected 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 CFR part 12, as well as other
commonly-recognized best management practices, and is approved by the Orange County Soil
and Water Conservation District;
Orange County is a body politic existing under Chapter 153A of the North Carolina
General Statutes, and is qualified to hold conservation easements under the applicable laws of
the State of North Carolina;
NOW, THEREFORE, for the reasons given and other good and valuable consideration,
and in consideration of the mutual covenants, terms, conditions and restrictions contained herein,
and as an absolute and unconditional gift, the Grantor hereby grants and convey unto Grantees,
their 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 Protected Property;
The terms, conditions and restrictions of the Conservation Easement are as hereinafter set
forth:
1. Grant of Conservation Easement; Extinguishment of Development Rights
Grantor hereby voluntarily grants and convey to the Grantees, and the Grantees hereby
voluntarily accept, a perpetual Conservation Easement on the Protected 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 Protected Property that is inconsistent with the covenants herein. Grantor
authorizes the Grantees to enforce these covenants in the manner described below.
Grantor hereby voluntarily grants and convey to the Grantees all development rights for
the Protected Property, except as otherwise reserved and provided by the terms of this
Conservation Easement, that are now or hereafter inherent in the Protected 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 Protected Property or any other property by anyone or any entity,
including the Grantees.
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2. Statement of Purpose
The primary purposes of this Conservation Easement are to enable the Protected 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 North Fork Little River and North Fork Little River from the risk of adverse
impacts arising from use or development of the Protected 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 Protected Property shall be permitted.
Likewise, any activity that would risk causing adverse impact to the stream tributary to North
Fork Little River or North Fork Little River is prohibited. To the extent that the preservation and
protection of the other natural, historic, recreational, habitat, or scenic values referenced in this
Conservation Easement are consistent with the primary purposes stated above, it is within the
purpose of this Conservation Easement to also protect those values, and no activity that would
significantly impair those values shall be permitted.
As authorized in the Uniform Conservation and Historic Preservation Act,N.C. Gen.
Stat. § 121-34 et seq., this Conservation Easement is perpetual; it restricts the Grantor's Property
in perpetuity; and it is enforceable by the Grantees against the Grantor, their 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 rights to sell, lease, and devise the Protected Property provided such
transaction is subject to the terms of this Conservation Easement and written notice is provided
to the Grantees, 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 Protected Property after any natural disaster or other event
over which he had no control. Grantor understands that nothing in this Deed relieves them of
any obligation or restriction on the use of the Protected Property imposed by law.
4. Right to Farm
Grantor retains the right to farm, or to permit others to farm the Protected Property,
consistent with the Conservation Values of the Protected Property and in accordance with
applicable local, state and federal laws and regulations.
Subject to the terms of this Conservation Easement, farming, grazing, horticultural and
animal husbandry operations are permitted only if conducted consistent with Best Management
Practices promulgated by the State of North Carolina and in conformity with a Conservation Plan
as required in Paragraph 9 of this Conservation Easement, which Conservation Plan is
hereinafter referred to as "the Conservation Plan."
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Cattle and other livestock are allowed to exist and to graze on the Protected Property,
except within a 600-foot-wide stream buffer along North Fork Little River, which is 300 feet
wide on either side of the stream as measured from the center of the stream and perpendicular to
the stream, as well as 600-foot-wide stream buffer along the unnamed tributary of North Fork
Little River, which is 300 feet wide on either side of the stream as measured from the center of
the stream and perpendicular to the stream. The location of both stream buffers are identified
and marked on Exhibit A. Exhibit A is a copy of a GIS rendering of the Protected 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 and the Eno
River Association. Fencing intended to keep cattle and other livestock out of the above
mentioned stream buffers shall be installed before livestock is brought onto the Protected
Property.
The aforementioned 600-foot-wide stream buffer shall be restricted from any
development that would impair or interfere with the Conservation Values of the Protected
Property.
S. Right to Privacy
Grantor retains the right to privacy and the right to exclude any member of the public
from trespassing on the Protected Property. This Conservation Easement does not create any
rights of the public in, on or to the Protected Property.
6 Right to Use the Property for Customary Rural Enterprises
Grantor retains the right to use a portion of the Protected Property within a"Farmstead
Area"no greater than five (5) acres, the location of which will be determined when such area is
needed. The location will require approval by Grantees. The "Farmstead Area" can be used for
otherwise lawful and customary rural enterprises, such as, but not limited to, farm machinery
repair, sawmill, firewood distribution,bed and breakfast, farm stand, or educational programs so
long as such activities are a) consistent with Orange County zoning regulations and permits
required by and issued by Orange County under its laws and ordinances as they exist now and as
they may be amended from time to time, and b) are conducted in buildings otherwise permitted
under this Conservation Easement in a manner that is consistent with the conservation purposes
of this Conservation Easement, and c) are subordinate to the agricultural and residential use of
the Protected Property. Conducting customary rural enterprises on any other part of the
Protected Property is not permitted without the advance written permission of the Grantees in
each instance. Grantees shall not give such permission unless the Grantees determine that the
proposed use will not diminish or impair the Conservation Values of the Protected Property. The
parties expressly agree that enterprises that market petroleum or chemical products are
prohibited, and that commercial feed lots for cattle or other meat animals are also prohibited.
7. 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
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permitted below is prohibited. Before undertaking any construction or reconstruction that
requires advance permission, the Grantor shall notify the Grantees 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 Protected Property for purposes of reasonable and customary management of
livestock and wildlife or to fence off the perimeter of the Protected Property or the perimeter of
the stream buffer without any further permission of the Grantees.
(b) Structures &Improvements—There are no structures existing on the Protected
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 Protected Property) may be built on the Protected Property without any further permission of
the Grantees provided they are located in the "Farmstead Area."
Any new buildings, structures or improvements proposed for locations outside the
"Farmstead Area" shall be for agricultural purposes only and may be built only with the advance
written permission of the Grantees. The Grantees shall not give such permission unless they
determine that the proposed building, structure or improvement would not diminish or impair the
Conservation Values of the Protected Property or otherwise be inconsistent with this
Conservation Easement.
(c) Single-Family Residential Dwellings—No residential dwellings exist on the
Protected Property. Future residential dwellings on the Protected Property are prohibited.
(d) Passive Recreational Improvements—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
Protected Property. However, under no circumstances shall golf courses, golf ranges, airstrips or
helicopter pads be constructed, placed or permitted to remain on the Protected Property. Nothing
about Orange County's participation in or the signing of this Deed of Easement constitutes
zoning or the permitting of these recreational improvements and their appurtenant structures.
(e) Utility Services and Septic Systems—Installation, maintenance, repair,
replacement, removal and relocation of electric, gas, and water facilities, septic systems, sewer
lines and/or other public or private utilities, including for solar energy generation and including
telephone or other communication services over or under the Protected Property for the purpose
of providing electrical, gas,water, sewer, or other utilities to serve improvements on the
Protected Property permitted herein, and the right to grant easements over and under the
Protected Property for such purposes, is permitted. Grantor shall not permit or grant easements
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for utility transmission or distribution facilities or systems without the written consent of the
Grantees. Maintenance, repair or improvement of a septic system(s) or other underground
sanitary system that exists on the Protected Property at the time of this Conservation Easement,
or the construction of a septic or other underground sanitary system, for the benefit of any of the
improvements permitted herein and if necessary to serve the existing (or replacement) residential
or commercial uses located immediately adjacent to the Protected Property on the property
identified as Orange County PIN 0808-06-7557, is permitted. All other utilities are prohibited on
the Protected Property. Cellular communication towers or structures are prohibited on the
Protected Property.
8. Subdivision
The Protected Property may not be divided, subdivided or partitioned, nor conveyed except in its
current configuration as an entity.
9. Conservation Practices
All agricultural operations on the Protected Property shall be conducted in a manner
consistent with the requirements of this Conservation Easement and a Conservation Plan
prepared in consultation with NRCS and approved by the Orange County Soil and Water
Conservation District. This Conservation Plan shall be developed using the standards and
specifications of the NRCS Field Office Technical Guide and 7 CFR Part 12 that are in effect on
the date of execution of this Conservation Easement. The Grantor may, however, develop and
implement a Conservation Plan that proposes a higher level of conservation and is consistent
with the NRCS Field Office Technical Guide standards and specifications. Copies of the
Conservation Plan shall be kept on file in the office of the Orange Soil and Water Conservation
District and shall be provided to the Grantor and Grantees. The Conservation Plan may be
updated from time to time by mutual agreement of the NRCS and the Grantor. NRCS and the
Grantees shall have the right to enter upon the Protected 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 Grantees shall work with
the Grantor to explore methods of compliance. Grantor shall be given a reasonable amount of
time, not to exceed twelve months, to take corrective action. If the Grantor does not comply with
the Conservation Plan,NRCS will inform the Grantees 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 Grantees 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 Grantees
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, Grantees may proceed to take all reasonable steps to secure compliance.
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10. Forest Management
Everywhere on the Protected 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 Protected Property, so long as done in
accordance with the Conservation Plan referenced in Paragraph 9 (Conservation Practices) of
this Conservation Easement and in accordance with a Forest Management Plan that is prepared
by a professional licensed forester, and that is approved by Grantees,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 is in accordance with the Conservation Plan and Forest
Management Plan referred to in this Paragraph 10 (Forest Management) and occurs outside of a
200-foot-wide stream buffer along North Fork Little River, which is 100 feet wide on either side
of the stream as measured from the center of the stream and perpendicular to the stream, as well
as 200-foot-wide stream buffer along the unnamed tributary of North Fork Little River, which is
100 feet wide on either side of the stream as measured from the center of the stream and
perpendicular to the stream. The location of both stream buffers are identified and marked on
Exhibit A. Exhibit A is a copy of a GIS rendering of the Protected 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 and the Eno River
Association.
The aforementioned 200-foot-wide 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 Protected Property.
Trees may be planted, harvested and removed within the future "Farmstead Area," once
the location is determined and approved by Grantor and Grantees, all without the advance
written permission of the Grantees.
11. Mining
There shall be no filling, excavation, dredging, mining or drilling, removal of topsoil,
sand, gravel,rock,peat, minerals or other materials; and no change in the topography of the land
in any manner except as necessary for the purpose of normal and customary farming operations
in accordance with the Conservation Plan or combating erosion or flooding in accordance with
the Conservation Plan and as reasonably necessary for any maintenance, construction or
reconstruction on the Protected 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 Protected 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 Protected Property.
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12. Road Construction
Construction and maintenance of farm roads that may be reasonably necessary and
incidental to carrying out the improvements and uses permitted on the Protected Property by this
Conservation Easement are permitted. No roads constructed on the Protected Property shall be
paved or otherwise covered with concrete, asphalt, or any other impervious material, without the
advance written permission of the Grantees. For purposes of this Conservation Easement gravel
roads shall not be considered impervious. Grantees shall not give such permission unless the
Grantees determine 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 Protected Property.
13. Dumping and Trash
Dumping or storage of soil, trash,refuse, debris, ashes, garbage, waste, abandoned
vehicles or parts, appliances, machinery, or hazardous substances, or toxic or hazardous waste, or
any placement of underground or above ground storage tanks or other materials is prohibited.
Provided, however, that the storage of agricultural products, byproducts (including the
composting of biodegradable material for on-farm use) and agricultural equipment used on the
Protected Property is allowable, so long as such storage is done outside the stream buffers as
described in Paragraph 4 and identified on Exhibit A, and in accordance with all applicable
government laws and regulations and in such a manner so as to not impair the Conservation
Values of the Protected 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 Protected Property. Grantor shall not transfer, encumber, lease, sell or
otherwise separate such water rights from title to the Protected Property itself.
15. Natural Resource Restoration and Enhancement 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 Protected Property, that are consistent
with the Conservation Values of this Conservation Easement and subject to the written approval
of the Grantees and the Natural Resources Conservation Service.
16. Signs
No new signs shall be permitted on the Protected Property except interpretive signs
describing activities and Conservation Values of the Protected Property, signs identifying the
owner of the Protected Property and the holder of the Conservation Easement, and signs giving
directions or proscribing rules and regulations for the use of the Protected Property. All signs
permitted on the Protected Property shall conform to applicable Orange County zoning,
subdivision and building code regulations.
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17. Ongoing Responsibilities of Grantor and Grantees
Other than as specified herein, this Conservation Easement is not intended to impose any
legal or other responsibility on the Grantees, or in any way to affect any existing obligation of
the Grantor as owner of the Protected 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 Protected Property. If the Grantees are ever required to
pay any taxes or assessments on its interest in the Protected Property, the Grantor will reimburse
the Grantees for the same.
(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 Protected Property, including maintenance of all fencing and other structures
and facilities necessary to comply with the terms and conditions of this Conservation Easement
and the maintenance of adequate comprehensive general liability insurance coverage. Grantees
shall have no obligation for the upkeep or maintenance of the Protected Property. Grantor will
remain responsible for upkeep, maintenance, and repairs to any impoundments located on the
Protected Property.
(c) Liability and Indemnification—Grantor agrees to indemnify and hold the
Grantees harmless from any and all costs, claims or liability, including but not limited to
reasonable attorneys' fees, arising from(i) any personal injury, accidents, negligence or damage
relating to the Protected 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 Protected Property; and (iii)
Grantees exercise of their 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
Grantees or their agents, contractors or employees, liability shall be apportioned accordingly.
In addition, Grantor agrees to maintain liability insurance covering the Protected
Property with minimum coverage as follows: (i) $300,000 per person for personal injury or
death, $300,000 per occurrence, and(ii) $300,000 per occurrence for property damage. These
policy limits may be amended from time to time by written agreement of the parties to which the
parties agree to be bound. Additionally, Grantor warrants that the Grantees are and will remain
named insured on Grantor's property insurance policies covering the Protected Property. Grantor
shall provide Grantees with a certificate of insurance coverage on the effective date of this
Easement and within 10 days of each insurance renewal date.
Grantor shall indemnify and hold harmless the Grantees, their employees, agents,
and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees
penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of
any person or governmental authority, and other liabilities (whether legal or equitable in nature
and including, without limitation, court costs, and reasonable attorneys' fees and attorneys' fees
on appeal) to which the Grantees may be subject or incur relating to the Protected Property,
which may arise from,but are not limited to, Grantor's negligent acts or omissions or Grantor's
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breach of any representation, warranty, covenant, agreements contained in this Conservation
Easement Deed, or violations of any Federal, State, or local laws, including all Environmental
Laws.
18. Enforcement
With reasonable advance notice to the Grantor or with the Grantor's prior verbal consent,
Grantees shall have the right to enter the Protected Property for the purpose of inspecting for
compliance with the terms of this Conservation Easement. Grantees shall have the right to
prevent violations and remedy violations of the terms of this Conservation Easement through
judicial action, which shall include, without limitation, the right to bring proceedings in law or in
equity against any party or parties attempting to violate the terms of this Conservation Easement.
Except when an ongoing or imminent violation could irreversibly diminish or impair the
Conservation Values of the Protected Property, Grantees shall give the Grantor written notice of
the violation and thirty(30) days to cure the violation,before commencing any legal
proceedings. Grantees 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 Grantor to restore the Protected 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, Grantor shall reimburse Grantees for all its expenses incurred in
stopping and correcting the violation, including but not limited to reasonable attorneys' fees. The
failure of the Grantees to discover a violation or to take immediate legal action shall not bar it
from doing so at a later time for that violation or any subsequent violations. In any case where
the court finds that there was a complete absence of a justiciable issue of either law or fact raised
by the losing party, the court may award a reasonable attorney's fee to the prevailing party as
provided by applicable law.
19. Transfer of Conservation Easement
The Grantees shall have the right to transfer, assign, convey, or otherwise to co-hold the
Conservation Easement created by this Deed to any public agency or private nonprofit
organization that, at the time of transfer, is a qualified organization under Section 170(h) of the
U.S. Internal Revenue Code, as amended and under NCGS 121-34 et seq.,provided the agency
or organization expressly agrees to assume the responsibility imposed on the Grantees by this
Deed. If Grantees ever cease to exist or no longer qualify under Section 170(h) of the U.S.
Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this
Conservation Easement to another qualified organization having similar purposes that agrees to
assume the responsibility imposed by this Conservation Easement.
20. Transfer of Property
The 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 Protected Property. Grantor shall notify
the Grantees in writing at least thirty(30) days before conveying the Protected Property, or any
part thereof or interest therein. Failure of Grantor to incorporate by reference the terms of this
Conservation Easement in an instrument of transfer or conveyance or to notify the Grantees of a
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transfer or conveyance shall not impair the validity of this Conservation Easement or limit its
enforceability in any way.
21. Amendment of Conservation Easement
This Conservation Easement may be amended only with the written consent of the
Grantees and Grantor. Any such amendment shall be consistent with the Statement of Purposes
of this Conservation Easement and with the Grantees Conservation Easement amendment
policies, and shall comply with Section 170(h) of the Internal Revenue Code or any regulations
promulgated in accordance with that section. Any such amendment shall be duly recorded.
22. Procedure in the Event of Termination of Conservation Easement
If it determines that conditions on or surrounding the Protected 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 Grantor and Grantees, terminate or
modify the Conservation Easement created by this Deed in accordance with applicable law. If
the Conservation Easement is terminated and the Protected Property is sold, then as required by
Section 1.1 70A-14(g)(6) of the IRS regulations, the Grantees shall be entitled a percentage of
gross sale proceeds or condemnation award (minus any amount attributed to new improvements
made after the date of the conveyance, which amount shall be reserved to Grantor), equal to the
ratio of the appraised value of this Conservation Easement to the unrestricted fair market value
of the Protected Property, as these values are determined on the date of this Conservation
Easement), subject to any applicable law which expressly provides for a different disposition of
the proceeds.
All termination related expenses, including reasonable attorney fees, incurred by the
Grantor and the Grantees shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
23. Procedure in the Event of Condemnation or Eminent Domain
Grantor and Grantees recognize that the partial sale of this Conservation Easement gives
rise to a property right, immediately vested in the Grantees, with a fair market value equal to the
proportionate value that the Conservation Easement bears to the value of the Protected Property
prior to the restrictions imposed by the Conservation Easement. Accordingly, if any
condemnation or eminent domain action shall be taken, on all or part of the Protected Property,
by any authorized public authority, said authority shall be liable to the Grantees for the value of
the property right vested in the Grantees at the time of the signing of this Conservation
Easement.
If condemnation or a taking by eminent domain of a part of the Protected Property or the
entire Property by a public authority renders it impossible to fulfill any of the conservation
purposes of this Conservation Easement on all or part of the Protected Property, this
Conservation Easement may be terminated or modified accordingly through condemnation
proceedings. Grantor and Grantees agree that the Conservation Easement is a currently vested
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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 Protected Property is sold or taken for public use,
then, as required by Section 1.170A-14(g)(6) of the IRS regulations, Grantees shall be entitled to
the percentage of gross sale proceeds or condemnation award(minus any amount attributed to
new improvements made after the date of the conveyance, which amount shall be reserved to
Grantor), equal to the ratio of the appraised value of this Conservation Easement to the
unrestricted fair market value of the Protected Property, as these values are determined on the
date of this Conservation Easement, subject to any applicable law which expressly requires for a
different disposition of the proceeds.
If, however, after the condemnation or eminent domain proceedings, a court of
jurisdiction does not include in the just compensation awarded as a result of the taking, the
amount of the Conservation Easement value, then the Grantor shall not be responsible to share
any proceeds awarded.
All condemnation-related expenses, including reasonable attorney fees, incurred by the
Grantor and Grantees shall be paid out of any recovered proceeds prior to distribution of the net
proceeds as described herein.
24. Interpretation
This Conservation Easement shall be interpreted under the laws of the State of North
Carolina and the laws of the United States,resolving any ambiguities and questions of the
validity of specific provisions so as to give maximum effect to its conservation purposes.
25. Perpetual Duration; Severability
The Conservation Easement created by this Deed shall be a servitude running with the
land in perpetuity. Every provision of this Deed that applies to the Grantor or Grantees shall also
apply to their respective agents, heirs, executors, administrators, assigns, and all other successors
as their interests may appear. Invalidity of any of the covenants, terms or conditions of this
Conservation Easement, or any part thereof, by court order or judgment shall in no way affect the
validity of any of the other provisions hereof which shall remain in full force and effect.
26. Merger
The Parties agree that the terms of this Conservation Easement shall survive any merger
of the fee and easement interests in the Protected 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 Grantor and Grantees respectively at the following addresses,
unless a party has been notified in writing by the other of a change of address:
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To the Grantor: To the Grantees:
Norman C. Walker Orange County Dept. of Environment,
5317 Normans Road Agriculture, Parks and Recreation
Rougemont,NC 27572 PO Box 8181
Hillsborough,NC 27278
Eno River Association
4404 Guess Road
Durham,NC 27712
28. Grantor's Title Warranty
The Grantor warrants that they hold fee simple title to the Protected Property, free from
all encumbrances and exceptions to title, except for those exceptions deemed by the Grantees as
acceptable and set further in Exhibit B to this Conservation Easement, and hereby promises to
defend the same against all claims that may be made against it.
29. Subsequent Liens on the Property
No provisions of this Conservation Easement should be construed as impairing the ability
of Grantor to use the Protected Property as collateral for subsequent borrowing. Any such liens
shall be and remain subordinate to this Conservation Easement.
30. Subsequent Easements/Restrictions on the Property
The grant of any easements or use restrictions that might diminish or impair the
agricultural viability or productivity of the Protected Property or otherwise diminish or impair
the Conservation Values of the Protected Property is prohibited. Any such easements or
restrictions shall be subordinated to this Conservation Easement.
31. Grantor's Environmental Warranty
Grantor warrants that Grantor is in compliance with, and shall remain in compliance
with, all applicable Environmental Laws. Grantor 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 Protected Property. Grantor further warrants that Grantor has no actual
knowledge of a release or threatened release of any Hazardous Materials, as such substances and
wastes are defined by applicable federal and state law.
Moreover, Grantor hereby promises to hold harmless and indemnify the Grantees against
all litigation, claims, demands,penalties and damages, including reasonable attorney fees, arising
from or connected with the release or threatened release of any Hazardous Materials on, at,
beneath or from the Protected Property, or arising from or connected with a violation of any
Environmental Laws by Grantor or any other prior owner of the Protected Property. Grantor's
indemnification obligation shall not be affected by any authorizations provided by the Grantees
to Grantor with respect to the Protected Property or any restoration activities carried out by the
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Grantees at the Protected Property; provided, however, that the Grantees shall be responsible for
any Hazardous Materials contributed by the Grantees to the Protected Property after the date of
this Deed of Conservation Easement.
"Environmental Law" or"Environmental Laws"means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or
requirements of any governmental authority regulating or imposing standards of liability or
standards of conduct(including common law) concerning air, water, solid waste, hazardous
materials, worker and community right-to-know, hazard communication, noise, radioactive
material, resource protection, subdivision, inland wetlands and watercourses, health protection
and similar environmental health, safety, building and land use as may now or at any time
hereafter be in effect.
"Hazardous Materials"means any petroleum, petroleum products, fuel oil,waste oils,
explosives, reactive materials, ignitable materials, corrosive materials,hazardous chemicals,
hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic
chemicals, radioactive materials, infectious materials and any other element, compound, mixture,
solution or substance which may pose a present or potential hazard to human health or the
environment.
32. Entire Agreement
This instrument sets forth the entire agreement of the parties with respect to the
Conservation Easement and supersedes all prior discussions, negotiations, and understandings or
agreements relating to the said easement.
33. Recording Clause
Grantees shall record this instrument and any amendment hereto in timely fashion with
the Office of the Register of Deeds of Orange County,North Carolina, and may re-record it at
any time as may be required to preserve its rights under this Conservation Easement.
TO HAVE AND TO HOLD this Deed of Conservation Easement unto Grantees, their
successors and assigns, forever.
[The remainder of this page is intentionally left blank. Signature page follows.]
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23
IN WITNESS WHEREOF, the Grantor and Grantees, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTOR:
(SEAL)
Norman C. Walker
ACKNOWLEDGMENT OF GRANTORS:
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
I, , a Notary Public for 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 stamp or seal this the day of , 2018.
Notary Public
My commission expires:
Accepted:
GRANTEE: Orange County,North Carolina
By:
Chair
Orange County Board of Commissioners
ATTEST:
By:
Donna S. Baker, Clerk to the
Board of Commissioners
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24
STATE OF 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 the Chair of the Orange County Board of Commissioners, and attested by her as Clerk
to said Board of Commissioners.
Witness my hand and official stamp or seal this the day of , 2018.
(stamp)
Notary Public
My commission expires:
GRANTEE: Association for the Preservation of the Eno River Valley, Inc.
By:
Alanna Howard, President
ATTEST:
By:
Bercedis Peterson, Secretary
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
I, , a Notary Public of Orange County,North Carolina do hereby certify
that Bercedis Peterson personally appeared before me this day and acknowledged that she is
Clerk to the Board of Commissioners for Orange County,North Carolina and that by authority
duly given and as the act of Orange County,North Carolina the foregoing instrument was signed
in its name by the Chair of the Orange County Board of Commissioners, and attested by her as
Clerk to said Board of Commissioners.
Witness my hand and official stamp or seal this the day of , 2018.
(stamp)
Notary Public
Page 18 of 19
25
Exhibit A
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1 inch=417feet Qa.te_11120120 1$
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