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HomeMy WebLinkAboutAgenda - 10-05-2004-6cORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 5, 2004 Action Agenda Item No. ~ - G SUBJECT: Resolution of Approval -Agricultural and Watershed Protection Conservation Easement for the William McPherson Farm DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENT(S): Resolution of Approval Location Map Site Map Offer to Purchase and Contract of Sale Draft Conservation Easement INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2591 Durham 688-7331 Mebane 336-227-2031 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 PURPOSE: To consider a resolution to approve the purchase of and acceptance by Orange County of an agricultural and watershed protection conservation easement from William McPherson, .Jr. and his son William McPherson III, the conservation easement to be held jointly by Orange County and the Orange Water and Sewer Authority. BACKGROUND: The acquisition of agricultural conservation easements to help preserve prime farmland in Orange County is a longstanding goal of the Board of Commissioners, and is a priority of the Lands Legacy Program. Since completing the County s first agricultural conservation easement in 2001, Orange County has protected 446 acres of prime farmland and stream corridors through conservation easements. Other farmland easements in the County have been accomplished by the Triangle Land Conservancy and Orange Water & Sewer Authority. William McPherson contacted ERCD in 2003 about his interest in placing a conservation easement on his 47-acre farm located on Mebane-Oaks Road in Bingham Township. Because of its Iccation in the Cane Creek watershed, ERCD contacted the Orange Water and Sewer Authority (OWASA) to see whether there was interest in collaborating in an easement project that would protect both farmland and an important stream corridor. The McPhersons raise beef cattle and row crops on farmland they have owned for over 70 years. Toms Creek, a major tributary of Cane Creek, flows through the property and eventually drains to Cane Creek Reservoir. The proposed easement would permanently protect the entire farm, with additional restrictions along the Toms Creek corridor. All future non-agricultural development rights would be extinguished through the easement. ERCD Staff and the County Attorney have worked with the McPhersons and OWASA to prepare a conservation easement document that meets the family's needs and the County's interests, A copy of the draft easement is attached.. Easement monitoring will be accomplished jointly by ERCD and OWASA staff on an annual basis, until such time as the Board of Commissioners and the Soil and Water Board of Supervisors may enter into a memorandum of agreement for the easement monitoring to be accomplished by the Orange Soil and Water/Natural Resources Conservation Services staff, FINANCIAL IMPACT: The cost of the easement purchase - to be split equally by Orange County and OWASA - is $125,000 or $2,686 per acre. Including an estimated $10,000 for closing and other transaction costs (also to be split equally with OWASA), the total Orange County share of the project cost $68,000, The County's share would come from the alternative financing for conservation easements approved by the Board in FY 2002-03. The Budget office will bring a Capital Project Ordinance forward in an upcoming budget amendment abstract, RECOMMENDATION(S): The Manager recommends that the Board adapt the Resolution approving the purchase of and acceptance by Orange County of the conservation easement and authorize the Chair to sign the Resolution, ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural and Watershed Protection Conservation Easement Between Orange County, Orange Water & Sewer Authority, and William McPherson WHEREAS, Orange County has an adopted goal promoting the preservation of farmland in the County; and WHEREAS, agriculture in Orange County is an important facet of the economy and way of life in the County; and WHEREAS, one component of the Lands Legacy Program is the acquisition of conservation easements on prime or threatened farmland within water supply watersheds; and WHEREAS, the McPherson farm includes 46.54 acres in the Cane Creek protected watershed, consists of a majority of prime soils, and is located in an agricultural community with access to farm markets; and WHEREAS, the Orange Water and Sewer Authority (OWASA) has agreed to collaborate on the joint acquisition of a conservation easement that will protect the prime farmland and riparian corridors that exist on the McPherson farm with a conservation easement; and WHEREAS, a conservation easement on this entire farm provides awin-win scenario - ensuring the preservation of this farmland far future generations and providing return on the property far the McPherson family; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) agree to accept on behalf of Orange County the agricultural conservation easement to protect prime farmland owned by William McPherson, Jr. and his son William McPherson III; 2) approve the execution of the Offer to Purchase and Contract of Sale and the Deed of Agricultural Conservation Easement with the McPhersons, in accordance with the terms of the proposed Offer to Purchase and Contract of Sale and the Deed of Agricultural Conservation Easement, the final form and terms of which to be approved by ERCD staff and the County Attorney; and 3) authorize the Chair and the Clerk to sign the Offer to Purchase and Contract of Sale and the Deed of Agricultural Conservation Easement on behalf of the Board, with a closing to occur on or before December 31, 2004. This the 5th day of October, 2004. Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board l ," eo t F Cane Creek Watershed ;~ T~ V ? Q. ~~~~ ~~ n, i f ' y , „ i ~ ~ v~ o \ 1 c G Ni O n C ~ in n hr a ~~ 1 ....~ ~'~ I ARTHUR hgWN~,g RD `~ ' . i ~ ~ ~ ~. i ;. (t~ +' \ ' J C)~~\~ ~ ih ~. \ .f, '= ~ o' r (,.^ ~ ~. w J Oi\P ' u i r, -~ a ~~ (_ r r ul'-~ ~ _.. Win,,-e{ N n1m C' n~. Grrric .~. ~ y V'orY ~_ '1 ~' RF wervnir ~'~ ~ O J J e t„ \ I.. ~ }~~ "~ a L ~* fi ~ ?ii n~= f ' r ~~ N' r;>;. "~ I Vicinity Map McPherson Far m McPherson Farm ~~~~ ~ ~~~~ Zooo Feel ~ ~ Major Streams PIN 9822-44-3Q24 Main Roads 46.54 Acres County of Orarge [nNronmenl8 Resov¢e O Concervauon Oepprtmenl M JMCS G261e< U ~_ ® ~~~a O,yOm oco'vZ c~ o 3s~~ w3 LL O O m ~J .C W Q 0 0 L a a~ L +~+ ~i- 'U C f6 i a-+ v L a~ ~ ~ ~ w "" ~ c u ~ o ~ o ~ ~ ~ a ~ ~ ~ C Q CJ O ~ 9 O E o a~i v ~ U > m m IL C ~ j lL G O 9 O ~ ~ ~ N m V ~ N N ~ y ~ ~ C a c ~ -c °~ d ~ t ~ U ti Q ti (n a ¢ 6 NORTH CAROLINA ORANGE COUNTY OFFER TO PURCHASE AND CONTRACT TO SELL THIS OFFER TO PURCHASE AND CONTRACT TO SELL is made and entered into this the th day of , 2004, by and between ORANGE WATER AND SEWER AUTHORITY, a public body, politic and corporate, with its principal office in Carrboro, North Carolina, (herein "OWASA"), and ORANGE COUNTY, a body politic with its mailing address at P.O. Box 8181, Hillsborough, North Carolina 27278, (together referred to herein as "Buyer"), and WILLIAM EDGAR MCPHERSON JR.. (unmarried) and son WILLIAM MCPHERSON III (unmarried), (together referred to as "Seller"). WITNESSETH The pazties BUYER hereby agree to purchase from Seller, and Seller hereby agrees to sell and convey to OWASA and ORANGE COUNTY the real property described herein, upon the following terms and conditions: 1. Propert~o be Purchased and Conveyed. Buyer hereby offers and agrees to purchase, and Seller hereby accepts the offer and agrees to sell and convey to Buyer an AGRICULTURE AND WATERSHED PROTECTION EASEMENT, in the form attached as Exhibit A, affecting and restricting Seller's 46.54-acre tract identified as Orange County P.I.N. 9822-44-.3024 that has an Orange County tax reference of TMBL 6.8..3 (referred to herein as the "Property"). The Property is located in Bingham Township, Orange County, North Carolina, and is more particulazly described on Exhibit B, attached, and the exact acreage is subject to verification by survey by Buyer. Buyer and their agents and contractors shall have the right to enter upon the Property in order to survey and to prepare a plat, and property and environmental reports and appraisals as necessary for submittal to the North Carolina Clean Water Management Trust Fund, or otherwise as necessary to prepare for closing of this transaction. 2. Purchase Price for Real Property. The purchase price for the Conservation Easement shall be One Hundred Twenty-Five Thousand Dollars ($125,000). The purchase price shall be paid at the closing, 3. Closinng Expenses. Buyer shall pay for preparation of the deed, the survey, and for all recording expenses related to the transaction. Seller shall pay the excise stamp taxes. Except as otherwise stated herein, each party shall bear its own expenses, including attorney fees, if'any. 4. Closing of Sale and Purchase.. The parties agree to execute any and all documents and papers necessary in connection with closing and transfer of title as soon as the environmental survey and property report, and the survey, all to be prepared and paid for by or at Buyer's direction, aze complete, and when Buyer's counsel has completed the examination of'title herein and is able to certify title to Buyer; closing shall take place upon convenient and reasonable notice to the Seller as to time and place. At closing, Seller shall deliver to Buyer an affidavit in form acceptable to the Buyer that there is no environmental contamination upon the Property to Seller's knowledge as of closing, and a warranty deed conveying the Conservation Easement to the parties Buyer, free of all liens and encumbrances. 5. Parties; Assienrrrent; Terms. This Contract shall be binding upon and shall inure to the benefit of the parties and their heirs, successors and assigns. 6, Evidence of Title.. Seller agrees to exercise their best efforts to deliver to Buyer's counsel as soon as reasonably possible after the date ofthis Contract, copies of all title information 8 in their possession, including deeds, wills, deeds of trust, surveys, covenants and easements related to the property, and to cooperate in the identification of the source of their interests in the property. 7. Entire Agreement,. This Contract contains the entire agreement of the parties, and there aze no representations, inducements, understandings, or other provisions other than those expressed herein in writing. All changes, additions, or deletions to the provisions of this written Contract must likewise be in writing and signed by the parties hereto. 8. Board Approval; Other Conditions. The parties understand and agree that this Agreement is made subject to the necessity that it be approved by the Board ofDirectors of Orange Water and Sewer Authority and the Boazd of Commissioners of Orange County as soon as the matter may be brought before those Boazds for approval, and that upon the failure of either Board to approve the transaction, this Agreement shall be, null and void. This Agreement is entered into upon the further condition that the Environmental Report to be obtained at Buyer's expense must verify that there is no environmental contamination on or affecting the Property, If the Environmental Report discloses the presence of petroleum or toxic pollutants on or affecting the Property, Buyer-shall have the right to rescind, and this Agreement shall thereafter be, null and void.. 9, Counterparts. This Contract is executed in three counterparts, one to be retained by the Seller, and one to be retained by OWASA and the one to be retained by Orange County, 10. Applicable Law. This Contract shall be governed and construed under and in accordance with the law of North Carolina. 11. Captions and Headings. The captions and headings tluoughout this Contract are for convenience and reference only and the words contained therein are not intended to define or add to the interpretation, construction or meaning in any provision of this Contract. IN WITNESS WHEREOF, OWASA and Orange County and the Sellers have each caused this Contract to be signed in their names, and on their behalf; to be effective from and after executed by the parties hereto, BUYER: ORANGE WATER AND SEWER AUTHORITY By: Ed Kerwin Executive Director ORANGE COUNTY, NORTH CAROLINA By: Barry Jacobs Chair, Orange County Board of Commissioners ATTEST: Donna S. Baker Clerk to the Board of Commissioners SELLER: By: William Edgar McPherson, Jr. AFFIX CORPORATE SEAL By: (SEAL) William Edgar McPherson III 10 NORTH CAROLINA ORANGE COUNTY I, , a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Cazolina and that by authority duly given and as the act of said County, the foregoing instrument was signed in its name by the Chair of said 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 , 2004. Notary Public My commission expires: NORTH CAROLINA ORANGE COUNTY I, a Notary Public in and for said County and State, do hereby certify that William Edgar McPherson, Jr. and William Edgar McPherson IlI personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and official stamp or seal, this the _ day of , 2004. Notazy Public My commission expires: NORTH CAROLINA ORANGE COUNTY I, , a Notary Public in and for said County and State, do hereby certify that personally appeared before me this day and acknowledged that (s)he is Secretary of ORANGE WATER AND SEWER AUTHORITY, a North Carolina corporation, and that by the authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its Executive Director and sealed with its corporate seal, and attested by her as Secretary.. Witness my hand and official. stamp or seal, this the _ day of , 2004.. Notary Public My commission expires: D~~aft #4 clew: (9/14/04) STATE OF NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED CONVEYING AGRICULTURAL. AND WATERSHED PROTECTION CONSERVATION EASEMENT 11 This Deed of Agricultural and Watershed Protection Conservation Easement ("Conservation Easement") is granted on this _ day of , 200_, by WILLIAM EDGAR MCPHERSON, JR. (unmarried) and son WILLIAM MCPHERSON III (unmarried), having an address of 3602 Mebane Oaks Road, Mebane, NC 27302 (referred to as "Grantors"), to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278, and ORANGE WATER AND SEWER AUTHORITY, having an address of 400 Jones Ferry Road, Carrboro, NC 27510, (both together referred to herein as "Grantee") WHEREAS: Grantors are the sole owners in fee simple, of certain farm Property, more pazticularly described in Exhibit A, attached hereto and incorporated herein (the "Property"), which consists of approximately 46,54 acres of land, located in Bingham Township, Orange County, North Carolina and identified as " " on the plat of the Property titled..., prepared by..., which plat is recorded at Plat Book ,Page ,Orange County Registry (Orange County PIN 9822-44-3024). The Property includes buildings and other improvements, The Property consists primarily ofproductive agricultural and forestland. The majority of the soils on the Property have been classified as "prime" or "statewide important" soils by the Natural Resources Conservation Service, United States Department of Agriculture, (also referred to as "NRCS" or "the United States,") The Property is bisected by Toms Creek, which is a tributary to the Cane Creek Reservoir, a public drinking water supply reservoir serving Orange County, North Carolina. The Property is within the Cane Creek Protected Watershed. Draft #4 clean (9/14/04) 12 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 water quality of the surface water in the watershed of the Cane Creek Reservoir. The Property also includes outstanding woodland and riparian habitats for a variety of wildlife species of importance to the Grantors, the people of Orange County and the people of North Carolina. It is a secondary purpose of this Conservation Easement to protect these natural and wildlife habitat resources. The agricultural resources of the Grantors' Property, and its contribution to the protection of the public drinking water supply, the natural habitat and the rural character of the azea are collectively referred to as the "conservation values" of the Easement ?.rec. The specific conservation values of the Property and its current use and state of improvement are described in a Baseline Report ("Report") prepazed by the Grantee with the cooperation of the Grantors, and acknowledged by both pazties to be accurate as of the date of this Conservation Easement, This Report maybe used by the Grantee to document any future changes in the use or chazacter of the Property in order to ensure the terms and conditions of this Conservation Easement are fulfilled. This Report, however, is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a controversy over its use. The Grantors and Grantee have copies of this Report, and said report will remain on file at the office of the Orange County Environment and Resource Conservation Department. The Grantors and Grantee agree that the current agricultural use of, and improvements to, the Property are consistent with the conservation purposes of this Conservation Easement., The Grantors intend that the conservation values of the Property be preserved and maintained, and furtlrer, Grantors intend to convey to Grantee the right to preserve and protect the agricultural and other conservation values of the Property in perpetuity. The conservation purposes of this Conservation Easement are recognized by, and the grant of this Conservation Easement will serve, the following clearly delineated governmental conservation policies: (1) North Carolina General Statute 1.39-2 et seg., 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;" (2) 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;" Draft #4 clean (9/14/04) 13 (.3) 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 maybe effective "perpetually;" which provides for the enforceability of restrictions, easements, covenants or conditions "..,.appropriate to retaining land or water areas predominantly in their natural, scenic, or open condition or' in agricultural, horticultural, farming or forest use....;" and which provides for tax assessment of lands subject to such agreements "on the basis of the true value of the land and improvement less any reduction in value caused by the agreement;" (4) The North Carolina Conservation Tax Credit Program, North Carolina General Statute 105-130.,.34 and 105-151.12 et seq., which provides for state income tax credits for donations of land that are useful for fish and wildlife conservation and other similar land conservation purposes; (5) The establishment of the North Cazolina Farmland Preservation Trust Fund established in 1986 (N.C.G.S. 106-744(c)) to preserve important farmland in North Carolina; (6) The special use assessment of farm and forestland as set forth in North Carolina General Statute 105-277.2 et seq.; and (7) The zoning of the Property by Orange County as Agricultural Residential and Cane Creels Critical Area, the latter to protect the public water supply watershed of the Cane Creek Reservoir. Grantors and Grantee have the common purpose of protecting the above-described conservation values and current condition of the Property and preventing conversion of the Property to nonagricultural uses, and Grantors agree to create and implement a conservation plan (hereinafter the "Conservation Plan") that is developed utilizing the standards and specification of the NRCS field office technical guide and 7 CFR part 12, and is approved by the Orange County Soil and Water Conservation District; The parties Grarrtee are bodies politic existing under Chapter 153A and Chapter 162A of the North Carolina General Statutes, and are qualified to hold Conservation Easements under the applicable laws of the State of North Carolina; NOW, THEREFORE, for the reasons given and other good and valuable consideration and in consideration of the mutual covenants, terms, conditions and restrictions contained herein, the Grantors hereby grant and convey unto Grantee a Conservation Easement, of the nature and character and to the extent hereinafter set forth, in respect to the Property as described in Exhibit A; The terms, conditions and restrictions ofthe Conservation Easement areas hereinafter set forth: Draft #4 clean (9/14/04) 14 1. Gr°ant offlgricultural mrd Watershed Protection Conservation Easement Grantors hereby voluntarily grant and convey to the parties Grantee, and the parties Grantee hereby voluntarily accept, a perpetual Agricultural and Watershed Protection Conservation Easement (herein "Conservation Easement") in the Property, which Easement is an immediately vested interest in real property of the nature and character described herein. Grantors promise that they will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the covenants herein. Grantors authorize the parties Grantee to enforce these covenants in the manner described below. Grantors hereby voluntazily grant and convey to the parties 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 pazties agree that such development rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Property, as it now or hereafter may be bounded or described, or used or transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield or impervious surface requirements of the Property or any other property. 1. Statement of Purpose The primary purposes of this Agricultural and Watershed Protection Conservation Easement aze 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 streams tributary to the Cane Creek Reservoir from the risk of adverse impacts arising from use or development of the Property contrary to the provisions of this Conservation Easement, Except as specifically permitted herein, no activity that would impair the actual or potential agricultural use of the Properly is permitted. Likewise, any activity that would risk causing adverse impact to any strean~ tributary to Cane Creek Reservoir is prohibited. To the extent that the preservation and protection of the natural, historic, recreational, habitat or scenic values referenced in this Conservation Easement are consistent with the primary purposes stated above, it is within the purpose of this Conservation Easement to also protect those values, and no activity that would significantly impair those values shall be permitted.. As authorized in the Uniform Conservation and Historic Preservation Act, N.C. Gen, Stat, § 121-34 et. se9., this Conservation Easement is perpetual; it restricts the Grantors property in perpetuity; and it is enforceable by Grantee against the Grantors, their representatives, heirs, successors and assigns, lessees, agents, and licensees.. .3. Rights mrd Responsibilities Retained by Grantor°s Subject to the terms and restrictions hereof, the Grantors reserve to and for themselves and their successors the right to quiet enjoyment of'the Property and the right to partake in passive recreation on the Property. The Grantors reserve to and for themselves and their successors all customary rights and privileges of ownership, including the rights to sell, lease, and devise the Property, provided such transaction is subject to the terms of this Conservation Draft #4 clean (9/14/04) 15 Easement and written notice is provided to Grantee, together with any rights not specifically prohibited by or limited by this Conservation Easement, acrd consistent with this Conservation Easement. Unless otherwise specified below, nothing in this Conservation Easement shall require the Grantors to take any action to restore the condition of the Property after any Act of God or other event over which they had no opportunity to control or prevent, Grantors understand that nothing in this Deed of Conservation Easement relieves them of any obligation or restriction on the use of the Property imposed bylaw.. 4. Right to Far•nt Except as specific activities maybe prohibited herein, Grantors retain the right to fazm, or to permit others to fazm the Property, consistent with the conservation values of'the 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 aze permitted only if conducted consistent with Best Management Practices promulgated by the State of North Cazolina and in conformity with a Conservation Plan as required in Paragraph 9 of this Conservation Easement, which Conservation Plan is hereinafter referred to as "the Conservation Plan." Cattle and other livestock are allowed to exist and to graze on the Property, except within the Conservation Corridor identified and marked on Exhibit B, and hereinafter referred to as the "Conservation Corridor." S. Right of Access to Conservation Easerent; Duty to Respect Grantors' Pr°ivacy The parties Grantee and their successors and assigns shall have the right of access over the Property from the public road provided they shall be responsible to Grantors and their successors and assigns to repair or pay for the repair of any parts of the Property damaged in the exercise of this right of access. Grantors retain the right to privacy and the right to exclude any other member of the public frorn trespassing on the Property. This Conservation Easement does not create any rights of the public in, on or to the Property. 6. Right to Use the Property for Customary Rural Enterprises Grantors retain the right to use the portion of the Property within the "Farmstead Area" (which contains approximately 2 acres) as identified on Exhibit B, and more particularly described in the Baseline Report, for otherwise lawful and customary rural enterprises, such as, but not limited to, farm machinery repair, sawmill, firewood distribution, bed and breakfast, or educational programs so long as such activities are consistent with Orange County zoning regulations and permits required by and issued by Orange County under its laws and ordinances, and aze conducted in buildings otherwise permitted under this Conservation Easement in a manner that is consistent with the conservation purposes of this Conservation Easement. Draft #4 clear: (9/14/04) ~ 6 Conducting customary rural enterprises on any other part of the Property is not permitted without the advance written permission of Grantee in each instance.. Grantee shall not give such permission unless Grantee determines that the proposed use will not diminish or impair the conservation values of the Properly. Procedure to Conch°uct Buildings and Other Impr~~ovements The Grantors' rights to construct or reconstruct buildings and other improvements are described in subparagraphs (a) through (f) below. Any construction or reconstruction not permitted below, or not previously approved by Grantee, is prohibited, Before undertaking any construction or reconstruction that requires advance permission, the Grantors shall notify Grantee and obtain written permission. All construction or reconstruction is subject to Orange County zoning regulations and must be consistent with permits required by and issued by Orange County under its laws and ordinances for such construction activities. (a) Fences -Existing fences may be repaired and replaced, and new fences maybe built on the Property for purposes of7easonable and customary management of livestock and wildlife or to fence off the perimeter of the Property without any further permission of Grantee, (b) Strzzct:a-es & Improvements -Existing structures, including existing agricultural structures and existing improvements, may be repaired, reasonably enlarged and replaced at their current locations within the "Fazmstead Area", as shown on Exhibit B, without further permission from Grantee. New buildings, barns, sheds and other structures and improvements to be used primarily for agricultural purposes, including the processing or sale of fazm products predominantly grown or raised on the Property may be built on the Property without any further permission of Grantee provided they are located in the "Fazmstead Envelope." Structures, improvements and other impervious surfaces located on the Property, including those existing on the date of this Conservation Easement, shall not exceed 2 percent of the total area of the Property, Furthermore, structures, improvements and other impervious surfaces located in the "Farmstead Envelope," including those existing on the date of this Conservation Easement, shall not exceed 12 percent of the total area of the "Farmstead Envelope" or result in exceeding the total impervious surface limit on the Property of'2 percent. Any new buildings, structures or improvements proposed for locations outside the "Farmstead Envelope" may be built only with the advance written permission of Grantee. The parties Grantee shall give such permission within a reasonable time if they determine that the proposed building, structure or improvement would not diminish or impair the conservation values of the Property or otherwise be inconsistent with this Conservation Easement. (c) Single-Family Residential Dwellings -One residential dwelling exists within the "Fazmstead Envelope" on the Property as depicted on Exhibit B, No new residential dwelling may be built on the Property.. All appurtenant structures (garage, sheds) for the existing residential dwelling shall be contained within the "Fazmstead Envelope." (d) Recreational Improvements -Grantors expressly reserve the right to engage in undeveloped, low impact recreational activities such as hunting, fishing, hiking and bird Draft #4 cleats (9/14/04) 1~ watching and to control access of all persons for these purposes; provided that these activities do not impact the protection and conservation of any animal habitat or other conservation values of the Property. However, under no circumstances shall golf courses, golf7anges, airstrips or helicopter pads be constructed, placed or permitted to remain on the Property. (e) Utility Services mad Septic Systems -Installation, maintenance, repair, replacement, removal and relocation of electric, gas, and water facilities, sewer lines and/or other public or private utilities, including telephone or other communication services over' or' under the Property for the purpose of providing electrical, gas, water, sewer, or other utilities to serve improvements permitted herein, and the right to grant easements over and under the Property for such purposes, are permitted. Grantors shall not permit or grant easements for utility transmission or distribution facilities or' systems without the written consent of the parties Grantee, Maintenance, repair or improvement of a septic system(s) or other underground sanitazy system that exists on the Property at the time of this Conservation Easement, or the construction of a septic or other underground sanitary system, for the benefit of any of the improvements permitted herein, is permitted. No new septic or' waste disposal system, nor any part thereof; maybe constructed within the Conservation Corridor without the prior written consent of Grantees. 8. Subdivision The Property currently consists of one tract. The legal subdivision of the Property, recording of a subdivision plan, paztition, or any other division of the Property into two or more parcels, is prohibited.. 9. Conservation Practices All agricultural operations on the Property shall be conducted in a manner' consistent with the Conservation Plan, prepared in consultation with NRCS and approved by the Orange County Soil and Water Conservation District, The Conservation Plan shall be developed using the standazds and specifications of the NRCS Field Office Technical Guide and 7 CFR Part 12 that are in effect on the date of execution of this Conservation Easement. The Grantors may, however, develop and implement a conservation plan that proposes a higher level of conservation and is consistent with the NRCS Field Office Technical Guide standazds and specifications. NRCS and the Orange County Soil and Water Conservation District shall have the right to enter upon the Property, with advance notice to the Grantors, in order to monitor compliance with the Conservation Plan. If the Grantors do not comply with the Conservation Plan, Grantee shall take steps as provided for in Paragraph 19 of this Conservation Easement, including efforts at securing voluntary compliance and, if necessary, appropriate legal action, to secure compliance with the Conservation Plan. Grantee shall notify NRCS and the Orange County Soil and Water Conservation District of any such compliance efforts and elicit the aid of both in securing the compliance by the Grantors with the Conservation Plan, Draft #4 clean (9/14/04) 18 In the event NRCS or the Orange County Soil and Water Conservation District, pursuant to its monitoring of the Conservation Plan, provides written notification to Grantee that (a) there is an ongoing event or circumstance ofnon-compliance with the Conservation Plan, (b) MRCS has worked with the Grantors to correct such noncompliance, and (c) Grantors have exhausted their appeal rights under applicable NRCS regulations, Grantee shall take steps as provided for in Paragraph 19 of this Conservation Easement, including efforts at securing voluntazy compliance and, if necessary, appropriate legal action to secure compliance with the Conservation Plan. 10. Forest Management Trees maybe 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, without the advance written permission of Grantee, so long as it is in accordance with the Conservation Plan and in accordance with a Forest Management Plan prepared by a professional licensed forester approved by Grantee, such permission to not be unreasonably withheld, that is consistent with the Conservation Plan, Any other cutting, removal or harvesting of trees, including any commercial harvesting of trees, may be undertaken only if a) the purpose is for clearing land for cultivation or use by livestock, and b) it occurs outside of the Conservation Corridor, and c) it is in accordance with the Conservation Plan and Forest Management Plan. Trees maybe planted, harvested and removed within the area identified and marked as "Farmstead Envelope" on Exhibit B without the advance written permission of the Grantee, so long as done in accordance with the Conservation Plan and Forest Management Plan, so long as it occurs outside of the Conservation Corridor. Any other cutting, removal or hazvesting of trees, including any conunercial harvesting of trees, may be undertaken only if it occurs outside of the Conservation Corridor and only if it is in accordance with the Conservation Plan and Forest Management Plan.. All forest management activities shall be conducted only in accordance with N.C. Division of Forest Resources Best Management Practices guidelines far timber management as the same may be promulgated by law or regulation in the state of North Carolina and as adopted by the North Carolina organization of professional foresters, and amended from time-to-time. Forest management is permitted to generate occasional income from harvest and sale of forest products and to maintain the general health of the forest ecosystem. 11~ Mniing There shall be no filling, excavation, dredging, mining or drilling, removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary for the purpose of combating erosion or flooding in accordance with the Conservation Plan and as reasonably necessary for any permitted Dt-aft #4 clean (9/14/04) 19 maintenance, construction or reconstruction on the Property, Disturbed areas for the purpose of removing soil, gravel, rock, peat, minerals or other materials will be limited to one acre in total surface area and will be restored as soon as practicable after the disturbance. I2. Paving and Road Cwtstruction Construction and maintenance of farm roads that maybe reasonably necessary and incidental to carrying out the improvements and uses permitted on the Property by this Conservation Easement aze perniitted. Other than the existing entrance driveways within the Farmstead Area, as indicated on Exhibit B, no portion of the Property shall be paved or otherwise covered with concrete, asphalt, rock, gravel or any other impervious material, without the advance written permission of Grantee, Grantee shall not give such permission unless Grantee determines that the proposed paving, or covering of the soil, or' the location of any such road, will not diminish or impair the conservation values of the Property, Any such road covered by any impervious material including rock or gravel is subject to impervious surface requirements in Pazagraph 7. 1.3. Dumping mttl Ti-ash Dumping or storage of soil, trash, refuse, debris, ashes, garbage, waste, abandoned vehicles or parts, appliances, machinery, or hazardous substances, or toxic or hazardous waste, or any placement of underground or above ground storage tanks or other materials is prohibited on the Property. 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 in accordance with a Waste Management Plan approved by the SWCS, and in compliance with all applicable government laws and regulations, and does not impair the conservation values of the Property,. The land application, storage and placement on the Property of domestic septic effluent and municipal sewage sludge or liquid generated from such sources for agricultural purposes or otherwise is prohibited. 14. Water Rights Grantors shall retain and reserve the right to use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property. Grantors shall not transfer, encumber, ]ease, sell or' otherwise separate such water rights from title to the Property itself, 1 S. Natm°al Resource Restoration mtd Enhancement Activities Notwithstanding any terms contained within this Conservation Easement, Grantors may engage or contract others to engage in any activity designed to repair, restore, or otherwise enhance the natural resources found or once present on the Property, that are consistent with the conservation values of this Conservation Easement and subject to the written approval of Grantee and NRCS, Draft #4 clemi (9/14/04) 16. Signs 20 No new signs shall be permitted on the Property except interpretive signs describing activities and conservation values of the Property, signs identifying the owner of the Property and the holder of the Conservation Easement, and signs giving directions or proscribing rules and regulations for the use of the Property. All signs permitted on the Property shall conform to applicable Orange County zoning, subdivision and building code regulations. 17.. Ongoing Responsibilities of Grantors and Grantee Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on Grantee, or in any way to affect any existing obligation of the Grantors as owners of the Property. Among other things, this shall apply to: (a) Taxes -- The Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Property, If Grantee is ever required to pay any taxes or assessments on its interest in the Property, the Grantors will reimburse Grantee for the same. (b) Upkeep and Maintenance -- The Grantors retain al] responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no obligation for' the upkeep or maintenance of the Property. Grantors will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Property. (c) Z,iability and htdemniftcation -- Grantors agree to indemnify and hold Grantee harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or damage relating to the Property, or any claim thereof, unless due to the negligence of Grantee or agents of Grantee, in which case liability shall be as provided by law.. Irr addition, Grantors agree to maintain liability insurance covering the Property with the limits as follows: $300,000, $.300,000 personal injury; and $.300,000 property damage; and warrant that Grantee is and will remain a named insured on Grantors' Property insurance policies covering the Property. Grantors shall provide Grantee with a certificate of insurance coverage on the effective date of this Conservation Easement and within 10 days of each insurance renewal date. 18, Extinguishment of Development Rights Except as otherwise reserved to the Grantors in this Conservation Easement, the parties agree that all development rights appurtenant to the Property are hereby released, terminated and extinguished, and may not be used on or transferred to any portion of'tlre Property as it now or hereafter maybe bounded or described, or used or transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Property or any other property. Draft #4 clean (9/14/04) 19. Enforcement 21 With reasonable advance notice to the Grantors or with the Grantors' prior verbal consent, Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement, Grantee shall have the right to prevent violations and remedy violations of the terms of'this Conservation Easement through judicial action, which shall include, without limitation, the right to bring proceedings in law or in equity against any party or' parties attempting to violate the terms of this Conservation Easement.. Except when an ongoing, or imminent violation could irreversibly diminish or impair the conservation values of the Property, Grantee shall give the Grantors written notice of the violation and thirty (30) days to cure the violation, before commencing any legal proceedings. Grantee may obtain an injunction to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring the Grantors to restore the Property to its condition prior to the violation, as restoration of the property maybe the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantors shall reimburse Grantee for al] its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees.. The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. In any case where a court finds no such violation has occurred, each party shall bear its own costs, In any case where the court finds drat 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 bylaw.. 20. Ti•arrsfer of Conservation Easement Either of the pazties Grantee shall have the right to transfer, assign, convey, or otherwise to co-hold the Conservation Easement created by this Deed to any public agency or private nonprofit organization that, at the time of transfer, is a qualified organization under Section 170(h) of the U,S, Internal Revenue Code, as amended and under NCGS 121-.34 et seq,, provided the agency or organization expressly agrees to assume the responsibility imposed on Grantee by this Deed. If both parties Grantee 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. 21. Transfer of Aroperty The Grantors agree to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which they transfer or divest themselves of any interests, including leasehold interests, in all or a portion of the Property. The Grantors shall notify Grantee in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein. Failure of Grantors to incorporate by reference the terms of this Conservation Easement in an instrument of transfer or conveyance or to notify Grantee of a transfer or Draft #4 clear: (9/14/04) ~ ~ conveyance shall not impair the validity of this Conservation Easement or' limit its enforceability in any way. 22, Amendment of Conser~~atiw: Easement This Conservation Easement maybe amended only with the written consent of Grantee and the Grantors. Any such amendment shall be consistent with the Statement of Purposes of this Conservation Easement and with Grantee's Conservation Easement amendment policies, and shall comply with Section 170(h) of the Internal Revenue Code or any regulations promulgated in accordance with that section. Any such amendment shall be duly recorded.. Z.3. Prrocedur'e in the Event of Termination of Conservation Easement If it determines that conditions on or surrounding the Property change so much that it becomes impossible to fulfill the conservation purposes of this Conservation Easement, a court with,jurisdictionrnay, at the joint request of both the Grantors and the parties Grantee, terminate or modify the Conservation Easement created by this Deed in accordance with applicable State law, If the Conservation Easement is terminated and the Property is sold, then as required by Section 1,1 70A-14(g)(6) of the IRS regulations, Grantee shall be entitled to fifty-seven percent (57 %) of the net sale proceeds (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 provides for a different disposition of the proceeds. All termination related expenses incurred by the Grantors and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. l4. Procedure in the Everrt of Condemnation or Eminent Domain Grantors and Grantee recognize that the partial sale of this Conservation Easement gives rise to a property right, immediately vested in Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Property prior to the restrictions imposed by the Conservation Easement.. Accordingly, if any condemnation or eminent domain action shall be taken, on all or part of the Property, by any authorized public authority, said authority shall be liable to Grantee for the value of'the property right vested in Grantee at the time of the signing of this Conservation Easement, If condemnation or a taking by eminent domain of a part of the Property or the entire Property by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Property, the Conservation Easement maybe terminated or modified accordingly through condemnation proceedings. Grantors and Grantee agree that the Conservation Easement is a currently vested real property right with a value equal to the proportionate value the Conservation Easement has to the unencumbered value of the fee, as of the date of this grant.. If the Conservation Easement is terminated or modified and arry or all of the Property is sold or taken for public use, then, as required by Section 1,170A-14(g)(6) of Draft #4 clean (9/14/04) ~ ~3 the IRS regulations, Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at f fty-seven percent (57 %) of the Property's unrestricted value, subject to any applicable law which expressly requires for a different disposition of the proceeds. If; however, after the condemnation or eminent domain proceedings, a court of jurisdiction does not include, in the,just compensation awarded as a result of the taking, the amount of the Conservation Easement value, then the Grantors shall not be responsible to share any proceeds awarded.. All termination-related orcondemnation-related expenses incurred by the Grantors and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 2.5, 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, 26. Perpetual Duration, Severability The Conservation Easement created by this Deed shall be a servitude running with the ]and in perpetuity. Every provision of this Deed that applies to the Grantors or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear, Invalidity of any of the covenants, terms or conditions of this Conservation Easement, or any part thereof by court or'der' or judgment shall in noway, affect the validity of any of the other provisions hereof which shall remain in full force and effect. 27. Notices Arty notices required by this Deed shall be in writing and shall be personally delivered or sent by first class mail to the Grantors and Grantee respectively at the following addresses, unless a party has been notified in writing by the other of a change of address: To the Grantors: William E, McPherson, Jr. and William McPherson III 3602 Mebane Oaks Road Mebane, NC 27.302 To the Grantee: Orange County ERCD PO Box 8181 Hillsborough, NC 27278 AND Orange Water and Sewer Authority 400 .Tones Ferry Road Carrboro, NC 27510 Draft #4 cleats (9/14/04) 24 l8. Grantot•'s Title Wm°ranty The Grantors warrant that they hold fee simple title to the Property, free from all encumbrances and hereby promise to defend the same against all claims that may be made against it, except for'the following: (a) All enforceable easements and rights of way currently depicted in the Orange County Registry; and (b) Public Road rights of way affecting the Property; and (c) Current Orange County property taxes and any deferred-taxes as provided by law. 29. Subsequent Liens on Property No provisions of this Conservation Easement should be construed as impairing the ability of Grantors to use the Property as collateral for subsequent borrowing. Any such liens shall be and remain subordinate to this Conservation Easement. 30. Subsequent Easetaaents/Restrictions ott the Property The grant of any easements or use restrictions that might diminish or impair the agricultural viability or productivity of the Property or otherwise diminish or impair the conservation values of the Property is prohibited. Any such easements or restrictions shall be subordinated to this Conservation Easement.. 31. Gratator's Etavironmetttal Watvataty The Grantors warrant that they have no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property, as such substances and wastes are defined by applicable federal, State or local law, and hereby promise to defend and indemnify Grantee against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with any release of hazardous waste caused by the intentional or negligent act of the Grantors or violation of federal, State or' local environmental laws caused by the negligent or intentional act of the Grantor. Without limiting the generality of the foregoing, nothing in this Conservation Easement shall be construed as giving rise to any right or ability in Grantee, nor shall Grantee have any right or ability, to exercise physical or' managerial control over the day-to-day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. Draft #4 clean (9/14/04) 32. Enti~°e ~tgreernent 25 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. Recor°ding Clause Grantee shall record this instrument and any amendment hereto in timely fashion with the Office of the Register of Deeds of Orange County, North Carolina, and may re-record it at any time as maybe required to preserve its rights under this Conservation Easement. TO HAVE AND TO HOLD this Deed of Conservation Easement unto Grantee, its successors and assigns, forever'. [The remainder of this page is intentionally left blank. Signature page follows.] Draft #4 clean (9/14/04) 2 6 IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date f rst written above.. GRANTORS: Accepted: ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners ATTEST: By: William Edgar McPherson, Jr William McPherson III GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Barry Jacobs, Chair Orange County Board of Commissioners ORANGE WATER AND SEWER AUTHORITY Bv: Ed Kerwin Executive Director Secretary Draft #4 clean (9/14/04) Acknowledgments 27 I, , a Notary Public of Orange County, North Carolina do hereby certify that and wife personally appeared before me and acknowledged the due execution of the foregoing instrument. This the _ day of , 200_. Notazy Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of Orange County, North Carolina do hereby certify that Donna S. Baker personally appeared before me this day and acknowledged that she is Clerk to the Boazd of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its name by Barry Jacobs, Chair of the Orange County Board of Commissioners, and attested by her as Clerk to said Board of Commissioners.. Witness my hand and official stamp or seal this the day of , 200_. Notary Public My commission expires: Draft #4 clear: (9/14/04) NORTH CAROLINA COUNTY OF ORANGE Z8 I, , a Notary Public of Orange County, North Carolina do hereby certify that personally appeared before me this day and acknowledged that he/she is for Orange Water and Sewer Authority and that by authority duly given and as the act of Orange Water and Sewer Authority the foregoing instrument was signed in its name by ,and attested by him/her as to said Orange Water and Sewer Authority. Witness my hand and official stamp or seal this the _ day of , 200_. Notary Public My commission expires: STATE OF NORTH CAROLINA COUNTY OF ORANGE The Foregoing (or annexed) Certificate(s) of Notazy(ies) Public (is)(are) Certified to be correct. This instrument was filed for Registration on the Day and Hour in the Book and Page shown in the First page hereof. Joyce H, Pearson, Register of Deeds This instrument prepared by and return to: Geoffrey E, Gledhill Coleman, Gledhill, Hargrave and Peek P.O. Drawer 1529 Hillsborough, NC 27278 D~°aft #4 clean (9/l4/04) EXHIBIT A 29 PROPERTY DESCRIPTION Draft #4 clears (9/14/04) EXHIBIT B 30 PRESENT CONDITION MAP OF THE CONSERVATION EASEMENT