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HomeMy WebLinkAboutAgenda - 11-16-2004-6aORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: November 16, 2004 Action Agenda Item No. 6 - 4 SUBJECT: Resolution of Approval and Acceptance of Grant —Agricultural Conservation Easement with Ira and Hazel Ward DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y /N) No Conservation ATTACHMENT Resolution of Approval Site Map Draft Conservation Easement INFORMATION CONTACT: David Stancil, 245 -2590 Rich Shaw. 245 -2591 TELEPHONE NUMBERS: Hillsborough 732 -8181 Chapel Hill 968 -4501 Durham 688 -7331 Mebane 336- 227 -2031 PURPOSE: To consider a resolution to approve the acceptance by Orange County of a agricultural conservation easement from Ira and Hazel Ward, and acceptance of a grant from the federal Farm and Ranch Land Protection Program. BACKGROUND: The acquisition of agricultural conservation easements to help preserve prime farmland in Orange County is a longstanding goal of the Board of Commissioners, and is a priority of the Lands Legacy Program. Since completing the County's first agricultural conservation easement in 2001, Orange County has protected 473 acres of prime farmland and riparian buffers with conservation easements. In July 2002, Orange County, in cooperation with the Orange NRCS /Soil and Water Conservation Office, applied for matching funds from the federal Farm and Ranch Land Protection Program to purchase non- agricultural development rights for three farms — one of which is owned by Ira and Hazel Ward. Market appraisals were conducted to determine the purchase price for the easements. Grant funds totaling $784,155 for the three farms were awarded in September 2002. Of that total, $210,750 was allocated to the Ward farm. The remaining grant funds were used to acquire easements on the Walters and Cheek farms. The Wards raise beef cattle and row crops on farmland they have owned for 45 years. The farm is on two sides of Ira Road (Cheeks Township), and is situated on a ridge that separates the Upper Eno and Back Creek watersheds. The farm is divided into four adjacent tracts, each tract owned by one of the Ward children. The parents (Ira and Hazel) have a life estate over the entire farm, which they manage with assistance from their son Johnny. ERCD Staff and the County Attorney have worked with the Wards to prepare an easement document that meets the family's needs and the County's interests. The easement would permanently protect 112 acres of the 120 -acre farm. All future non - agricultural development rights would be purchased and extinguished through the easement. The easement also conforms to federal guidelines pursuant to the federal Farm and Ranch Land Protection Program. A copy of the draft easement is attached. Easement monitoring will be accomplished by ERCD 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 /NRCS staff. FINANCIAL IMPACT: The cost of the easement purchase is $433,200 or $3,868 per acre. Including closing and other transaction costs, the total cost of the project is approximately $444,750, with $210,750 of this amount to be reimbursed by the federal Farm and Ranch Land Protection Program. The County's share of the cost (approximately $234,000) would come from the $1,000,000 in alternative financing approved by the Board of Commissioners in FY 2002 -03, and in accordance with the Conservation Easement Capital Project Ordinance approved by the Board on March 24, 2003. The Budget office will bring a Capital Project Ordinance forward in an upcoming budget amendment abstract. RECOMMENDATIONS: The Manager recommends that the Board: Adopt the resolution approving the acceptance by Orange County of the conservation easement and authorize the Chair and the Clerk to sign the conservation easement agreement, subject to final review by staff and County Attorney, with a closing and recordation of the document expected to occur by December 31, 2004, and 2. Authorize the County acceptance of the $210,750 grant award for the Ward easement. ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural Conservation Easement between Orange County and Ira and Hazel Ward 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 Ward farm includes 112 acres in the Upper Eno and Back Creek protected watersheds, consists of a majority of prime soils, and is located in an agricultural community with access to farm markets; and WHEREAS, a grant in the amount of $210,750 was awarded to Orange County from the federal Farm and Ranch Land Protection Program to protect the future of this farm with an agricultural conservation easement; and WHEREAS, a conservation easement on 112 acres of this farm provides a win -win scenario - ensuring the preservation of this farmland for future generations and providing return on the property for the Ward family: NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the agricultural conservation easement to protect prime farmland owned by Ira and Hazel Ward; 2) approve the execution of this conservation easement agreement with Ira and Hazel Ward, in accordance with the terms of the proposed easement agreement, subject to final review by staff and the county attorney; and 3) authorize the Chair and the Clerk to sign the easement agreement on behalf of the Board, with a closing to occur on or about December 31, 2004. This the 16th day of November, 2004, Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board Draft 11 -10 -04 5 This instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hargrave & Peek, PC, P.O Drawer 1529, Hillsborough, NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF AGRICULTURAL CONSERVATION EASEMENT This Deed of Agricultural Conservation Easement ( "Conservation Easement') is granted on this _ day of 2004, by .JOHN IRA WARD, JR. and HAZEL J. WARD, husband and wife, having an address of 1515 Ira Road, Efland, NC 27243, PEGGY and MARK MAJORS, wife and husband, having an address of 201 Ward Street, Graham, NC 27253, DONNA and DAVID FRANCIS, wife and husband, having an address of 121 Normandale Drive, Cary, NC 27513, SANDRA and JOHN HANNON, wife and husband, having an address of 3601 Memory Lane, Raleigh, NC 27604, and JOHN IRA WARD, III and JENELL WARD, husband and wife, having an address of 4710 High Rock Road, Efland, NC 27243 (referred to as "Grantors "), to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (referred to as "Grantee "). Grantors are the sole owners in fee simple, of certain farm Property, more particularly described in Exhibit A, attached hereto and incorporated herein (the "Property "), which consists of approximately 112 acres of land, located in Cheeks Township, Orange County, North Carolina and identified as Tracts #1 - #4 on the plat of property titled "Property of John Ira Ward, .Jr. ", prepared by John C. Atkins, P.L.S., which plat is recorded at Plat Book _, Page _, Orange County Registry (PIN 9845 -09 -0989, PIN 9846 -10 -2834, PIN 9845 -19- 2937, PIN 9845 -29- 9829), The Property includes buildings and other improvements, which are shown on Exhibit B, attached hereto and incorporated herein. The Property consists primarily of'productive agricultural land. The majority of the soils on the Property have been classified as "prime" or "statewide important' soils by the Natural Resources Conservation Service, United States Department of Agriculture (also referred to as Draft 11 -10 -04 6 "NRCS" or "the United States"). It is the primary purpose of this Conservation Easement to protect the agricultural soils and agricultural viability and productivity of the Property. The Property also includes outstanding woodland and riparian habitats for a variety of wildlife species of importance to the Grantors, the people of Orange County and the people of North Carolina. Intermittent streams flow through the Property on their way to where they eventually flow into Back Creek and the Eno River, sources of drinking water for residents of both Orange and Alamance counties. The entire property is within either the Back Creek Protected Watershed or Upper Eno Protected Watershed. It is a secondary purpose of this Conservation Easement to protect these natural and wildlife habitat resources. The agricultural resources, including the protection of soils, and natural, wildlife habitat, and scenic resources of the Property to be preserved by this Conservation Easement are collectively referred to as the 'conservation values" of the Property. The specific conservation values of the Property and its current use and state of improvement are described in a Baseline Report prepared by the Grantee with the cooperation of the Grantors, and acknowledged by both parties to be accurate as of the date of this Conservation Easement. This Report may be used by the Grantee to document any future changes in the use or character of the Property in order to ensure the terms and conditions of this Conservation Easement are fulfilled. This Report, however, is not intended to preclude the use of other, evidence to establish the present condition of the Property if there is a controversy over its use. The Grantors and Grantee have copies of this Report, and said report will remain on file at the office of the Orange County Environment and Resource Conservation Department. The Grantors and Grantee agree that the current agricultural use of, and improvements to, the Property are consistent with the conservation purposes of this Conservation Easement. The Grantors intend that the conservation values of the Property be preserved and maintained, and further; Grantors intend to convey to Grantee the right to preserve and protect the agricultural and other conservation values of the Property in perpetuity. The conservation purposes of this Conservation Easement are recognized by, and the grant of this Conservation Easement will serve, the following 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 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 Draft 11 -10 -04 7 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 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; (6) The establishment of the North Carolina Farmland Preservation Trust Fund established in 1986 (N.C.G.S. 106- 744(c)) to preserve important farmland in North Carolina; (7) The special use assessment of farm and forestland as set forth in North Carolina General Statute 105 -277.2 et seq.; and (8) The zoning of the Property by Orange County as Agricultural Residential. 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 Grantee is a body politic existing under Chapter 153A of the North Carolina General Statutes, and is qualified to hold Conservation Easements under the applicable laws of the State 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 Draft 11 -10 -04 8 character and to the extent hereinafter set forth, in respect to the Property as described in Exhibit A; forth: The terms, conditions and restrictions of the Conservation Easement are as hereinafter set Gantt of Agricultural Conservation Easement Grantors hereby voluntarily grant and convey to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual Agricultural Conservation Easement in the Property, which easement is an immediately vested interest in real property the nature and character described herein. Grantors promise that they will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the covenants herein.. Grantors authorize the Grantee to enforce these covenants in the manner described below. Grantors hereby voluntarily grant and convey to the Grantee all development rights for the Property, except as otherwise reserved and provided by the terms of this Conservation Easement, that are now or hereafter inherent in the Property. The parties agree that such development rights are terminated and extinguished, and may not be used on 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. 2, Statement of Purpose It is the primary purpose of this Agricultural Conservation Easement to enable the Property to remain in agricultural use by preserving and protecting its agricultural soils and agricultural viability and productivity. Except as specifically permitted herein, no activity that would impair the actual or potential agricultural use of the Property shall be permitted. To the extent that the preservation and protection of the natural, historic, recreational, habitat or scenic values referenced in this Conservation Easement are consistent with the primary purposes stated above, it is within the purpose of this Conservation Easement to also protect those values, and no activity that would significantly impair those values shall be permitted. This Conservation Easement shall be perpetual. It is an easement in gross, runs with the land and is enforceable by Grantee against the Grantors, their, representatives, heirs, successors and assigns, lessees, agents, and licensees. 3. Rights and Responsibilities Retained by Grantors 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 11 -10 -04 9 Easement and written notice is provided to Grantee, together with any rights not specifically prohibited by or limited by this Conservation Easement, and consistent with this Conservation Easement. Unless otherwise specified below, nothing in this Conservation Easement shall require the Grantors to take any action to restore the condition of the Property after any Act of God or other event over which they had no control. Grantors understand that nothing in this Deed relieves them of any obligation or restriction on the use of the Property imposed by law. 4. Right to Farm Grantors retain the right to farm, or to permit others to farm the Property, consistent with the conservation values of the Property and in accordance with applicable local, state and federal laws and regulations. Subject to the terms of this Agricultural 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. Cattle and other livestock are allowed to exist and to graze on the Property, except within a 30 -foot stream buffer —the location of which is identified and marked on Exhibit B, attached hereto and incorporated herein. Exhibit B is a copy of a GIS rendering of the Property, the original of which will be maintained with the Baseline Report at the office of the Orange County Environment and Resource Conservation Department. Fencing intended to keep cattle and other livestock out of the 30 -foot stream buffer shall be installed no later than six months after the signing of this Conservation Easement. Right to Privacy Grantors retain the night to privacy and the right to exclude any member of the public from trespassing on the Property, This Conservation Easement does not create any rights of the public in, on or to the Property. G. Right to Use the Property, for Customary Rural Ente?pii.ses Grantors retain the right to use the portion of the Property within the "Farmstead Area" (which contains approximately three 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, 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 are conducted in buildings otherwise permitted under this Conservation Easement in a manner that is consistent with the conservation purposes of this Conservation Easement. Conducting customary rural enterprises on any other part of the Property is not permitted without the advance written permission of Grantee in each instance. Grantee shall not give such permission unless Grantee determines that the proposed use will not diminish or impair the conservation values of the Property. Draft 11 -10 -04 10 Procedure to Construct Buildings and Other Improvements 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 may be built on the Property for purposes of reasonable and customary management of livestock and wildlife or to fence off the perimeter of the Property without any further permission of Grantee,. (b) Structures & Improvements — Existing structures, including agricultural structures and existing improvements, may be repaired, reasonably enlarged and replaced at their current locations within the "Farmstead Area," as shown on Exhibit B, without further permission from the Grantee. New buildings, barns, sheds and other structures and improvements to be used primarily for agricultural purposes, including the processing or sale of farm products predominantly grown or raised on the Property may be built on the Property without any further permission of Grantee provided they are located in the "Farmstead Area." Existing residential structures and improvements, may be repaired, reasonably enlarged and replaced at their current locations within the "Existing Residential Envelopes," as shown on Exhibit B, without further permission from the Grantee. New accessory structures and improvements may be built on the Property without any further permission of Grantee provided they are located in the "Existing Residential Envelopes." 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 Area," including those existing on the date of this Agricultural Conservation Easement, shall not exceed 12 percent of fire total area of the "Farmstead Area" 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 Area" may be built only with the advance written permission of the Grantee The Grantee shall give such permission within a reasonable time if it determines that the proposed building, structure or improvement would not diminish or impair the conservation values of the Property or otherwise be inconsistent with this Conservation Easement. (c) Farm Support Housing -- No more than one (1) new single - or multi-family - dwelling to house farm tenants, employees or others engaged in agricultural production on the Property may be built on the Property without any further permission of the Grantee, provided the dwelling is less than 1,000 square feet in floor size and it is located within that area identified Draft 11 -10 -04 11 and marked as the "Farmstead Area" identified on Exhibit B. At the time that construction of such structure is to commence, Grantee shall be notified so that its records can be updated. (d) Single - Family Residential Dwellings — One residential dwelling exists on the Property within the Farmstead Area. Two residential dwellings exist outside of the "Farmstead Area" on the Property. They are each depicted as "Existing Residence" within the two Existing Residential Envelopes on Exhibit B. All appurtenant structures (garage, sheds) for each existing residential dwelling shall be contained within the respective "Existing Residential Envelope." No new residential dwelling may be built on the Property except for that which is authorized in Paragraph 7 (c) of this Conservation Easement. (e) Recreational Improvements - Gr'antor's expressly reserve the right to engage in low impact recreational activities such as hunting, fishing, hiking and bird 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, golf ranges, airstrips or helicopter pads be constricted, placed or permitted to remain on the Property. (f) Utility Services and 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, is permitted. Grantors shall not permit or grant easements for utility transmission or distribution facilities or systems without the written consent of the Grantee. Maintenance, repair or improvement of a septic system(s) or other underground sanitary system that exists on the Property at the time of this Conservation Easement, or the construction of a septic or other underground sanitary system, for the benefit of any of the improvements permitted herein, is permitted. All other utilities are prohibited on the Property including, but not limited to, cellular communication towers or structures. 8. Subdivision The Property currently consists of four separate tracts. The further subdivision of the Property, including its partition, is prohibited except as may be required by Orange County to enable the construction of the farm support housing provided for' in Paragraph 7(c). This prohibition applies regardless of how many separately described parcels are contained in the legal description attached as Exhibit A. In any event, all terms, restrictions, and conditions of this Conservation Easement shall apply to any subdivided parcel pennitted by the terms of this Conservation Easement, including but not limited to the requirements of agricultural viability of the Property, the restrictions on future development, the impervious surface limits on the Property as described in Paragraph 7(b) of this Conservation Easement, the necessity of a Conservation Plan, and the prohibition on activities that are described in this Conservation Easement. It is understood that notice of this Conservation Easement will be included in any instrument recorded that subdivides, partitions or otherwise divides parcels. Draft 11 -10 -04 12 9. Conservation Practices As required by Section 1238 I of the Food Security Act of 1985, as amended, the Grantors, their heirs, successors, or assigns, shall conduct all agricultural operations on the Property in a manner consistent with a Conservation Plan prepared in consultation with NRCS and approved by the Orange County Soil and Water Conservation District. This Conservation Plan shall be developed using the standards and specifications of the NRCS Field Office Technical Guide and 7 CFR Part 12 that are in effect on the date of execution of this Conservation Easement. The Grantors may, however, develop and implement a Conservation Plan that proposes a higher level of conservation and is consistent with the NRCS Field Office Technical Guide standards and specifications. NRCS shall have the right to enter upon the Property, with advance notice to the Grantors, in order to monitor compliance with the Conservation Plan. In the event of noncompliance with the Conservation Plan, NRCS shall work with the Grantors to explore methods of compliance and give the Grantors a reasonable amount of time, not to exceed twelve months, to take corrective action. If the Grantors do not comply with the Conservation Plan, NRCS will inform Grantee of the Grantors' non - compliance. Grantee shall take all reasonable steps (including efforts at securing voluntary compliance and, if necessary, appropriate legal action) to secure compliance with the Conservation Plan following written notification from MRCS that (a) there is a substantial, ongoing event or circumstance of non- compliance with the Conservation Plan, (b) NRCS has worked with the Grantors to correct such noncompliance, and (c) Grantors have exhausted their appeal rights under applicable NRCS regulations. If the NRCS standards and specifications for highly erodible land are revised after the date of this Grant based on an Act of Congress, NRCS will work cooperatively with the Grantors to develop and implement a revised Conservation Plan. The provisions of this section apply to the highly erodible land conservation requirements of the Farm and Ranch Lands Protection Program and are not intended to affect any other natural resources conservation requirements to which the Grantors may be or may become subject. 10. Forest Management Trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, to remove non - native species, for pasture restoration, for firewood and other non - commercial uses, including construction of permitted improvements and fences on the Property, so long as done in accordance with the Conservation Plan referenced in Paragraph 9 of this Conservation Easement and in accordance with a forest management plan prepared by a professional licensed forester approved by Grantee, such approval to not be unreasonably withheld, that is consistent with the above referenced Conservation Plan. Draft 11 -10 -04 13 Any other cutting, removal or harvesting of trees, including any commercial harvesting of trees, may be undertaken within the areas identified and marked at "Forested Area" on Exhibit B only if a) the purpose is for clearing land for cultivation or use by livestock, and b) it occurs outside of the stream buffer described in Paragraph 4 of this Conservation Easement, and c) it is in accordance with the Conservation Plan and forest management plan referred to in this Paragraph 10. Trees may be planted, harvested and removed within the area identified and marked as "Farmstead Area" 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 referred to in this Paragraph 10. 11, Mining There shall be no filling, excavation, dredging, mining or drilling, removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary for the purpose of combating erosion or flooding in accordance with the Conservation Plan and as reasonably necessary for any permitted maintenance, construction or reconstruction on the Property. Disturbed areas for the purpose of removing soil, gravel, rock, peat, minerals or other materials necessary for permitted customary agricultural uses will be limited to 1 acre in total surface area and will be restored as soon as practicable after the disturbance. Under no circumstances is the drilling for or exploration for hydrocarbons permitted in, on or to the Property. 12. Paving and 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 Property by this Conservation Easement are permitted. 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 Paragraph 7,. 13. Dumping and Trash Dumping or storage of soil, trash, refuse, debris, ashes, garbage, waste, abandoned vehicles or parts, appliances, machinery, or hazardous substances, or toxic or hazardous waste, or any placement of underground or above ground storage tanks or other materials is prohibited. Provided, however, that the storage of agricultural products, byproducts (including the composting of biodegradable material for on -farm use) and agricultural equipment used on the Property is allowable, so long as such storage is done in accordance with all applicable Draft 11 -10 -04 14 government laws and regulations and in such a manner so as to not impair the conservation values of the Property. The land application, storage and placement on the Property of domestic septic effluent and municipal sewage sludge or liquid generated from such sources for agricultural purposes may be undertaken only if in accordance with all applicable federal, state and local laws and regulations. 14. Water Rights Grantors shall retain and reserve the right to use any appurtenant water rights sufficient to maintain the agricultural productivity of the Property. Grantors shall not transfer, encumber, lease, sell or otherwise separate such water rights from title to the Property itself 1 S. Natural Resource Restoration and Enhancement Activities Notwithstanding any terms contained within this Conservation Easement, Grantors may engage or contract others to engage in any activity designed to repair, restore, or otherwise enhance the natural resources found or once present on the Property, that are consistent with the conservation values of this Conservation Easement and subject to the written approval of Grantee and NRCS. 16. Signs No new signs shall be permitted on the Property except interpretive signs describing activities and conservation values of the Property, signs identifying the owner of the Property and the 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. IT 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 the United States, or in any way to affect any existing obligation of the Grantors as owners of the Property. Among other things, this shall apply to: (a) Taxes -- The Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If Grantee is ever required to pay any taxes or assessments on its interest in the Property, the Grantors will reimburse Grantee for the same. (b) Upkeep and Maintenance -- The Grantors retain all responsibilities and shall bear all costs and liability of any kind related to the ownership, operation, and upkeep and maintenance of the Property, including the maintenance of adequate comprehensive general liability insurance coverage, Grantee and the United States shall have no obligation for the Draft 11 -10 -04 15 upkeep or maintenance of the Property. Grantors will remain responsible for upkeep, maintenance, and repairs to any impoundments located on the Property. (c) Liability and Indemnification -- Grantors agree to indemnify and hold Grantee and the United States harmless from any and all costs, claims or liability, including but not limited to reasonable attorneys' fees arising from any personal injury, accidents, negligence or 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. In 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 the Property as it now or hereafter may be bounded or described, or used or' transferred to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Property or any other property. 19. Enforcement With reasonable advance notice to the Grantors or with the Grantors' prior verbal consent, Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Conservation Easement. Grantee shall have the right to prevent violations and remedy violations of the terms of this Conservation Easement 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 may be the only appropriate remedy. In any case where a court finds that a violation has occurred, the Grantors shall reimburse Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time for that violation or any subsequent violations. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In any case where the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney's fee to the prevailing party as provided by law. Draft 11 -10 -04 16 In the event that Grantee fails to enforce any of the terms of this Conservation Easement as determined in the sole discretion of the Secretary of the United States Department of Agriculture, the said Secretary of Agriculture and his or her successors and assigns shall have the right to enforce the terms of the Conservation Easement through any and all authorities available under federal or State law. In the event that Grantee attempts to terminate, transfer, or otherwise divest itself of any rights, title, or interests of this Conservation Easement without the prior consent of the Secretary of the United States Department of Agriculture and payment of consideration to the United States, then, at the option of such Secretary, all right, title, and interest in this Conservation Easement shall become vested in the UNITED STATES OF AMERICA. 20. Transfer of Conservation Easement Subject to the contingent rights of the United States of America as specified in paragraph 16 and other pertinent paragraphs herein, and with timely written notice to and approval of the United States Department of Agriculture, Grantee shall have the right to transfer the Easement created by this Deed to any public agency, provided the agency or organization expressly agrees to assume the responsibility imposed on the Grantee by this Deed. 21, Transfer of Property The Grantors agree to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which they transfer or divest themselves of any interests, including leasehold interests, in all or, a portion of the Property. The Grantors shall notify Grantee in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein. Failure of Grantors to incorporate by reference the terms of this Conservation Easement in an instrument of transfer or conveyance or to notify Grantee of a transfer or conveyance shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 22. Amenclment of Conservation Easement This Conservation Easement may be 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. Grantee shall give notice of any amendment to and secure prior written approval from the United States, 23. Procedure in the Event of Termination of Conservation Easement If it determines that conditions on or surrounding the Property change so much that it becomes impossible to fulfill the conservation purposes of this Conservation Easement, a court with jurisdiction may, at thejoint request of both the Grantors and Grantee and with prior Draft 11 -10 -04 17 consent of the United States Department of Agriculture as provided herein, terminate or modify the Conservation Easement created by this Deed in accordance with applicable 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 -nine percent (59 %) 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. The Grantee and the United States of America shall divide the resulting proceeds in accordance with the percentage of the purchase price of the Conservation Easement that each party contributed. The percentages are 51 % for the Grantee and 49% for the United States of America. All termination related expenses incurred by the Grantors and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 24. Procedure in the Event of Condemnation or Eminent Domain Grantors and Grantee recognize that the partial sale of this Conservation Easement gives rise to a property right, immediately vested in Grantee, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Property prior to the restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or eminent domain action shall 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. Due to the federal interest in this Deed, the United States must consent to any such condemnation action. If condemnation or a taking by eminent domain of a part of the Property or the entire Property by a public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement on all or part of the Property, the Conservation Easement may be terminated or modified accordingly through condemnation proceedings. Grantors and Grantee agree that the Conservation Easement is a currently vested real property right with a value equal to the proportionate value the Conservation Easement has to the unencumbered value of the fee, as of the date of this grant. If the Conservation Easement is terminated or modified and any or all of the Property is sold or taken for public use, then, as required by Section 1.170A- I4(g)(6) of the IRS regulations, Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at fifty -nine percent (59 %) of the Property's unrestricted value, subject to any applicable law which expressly requires for a different disposition of the proceeds. If this Conservation Easement is extinguished or terminated, the United States and the Grantee shall receive its proportional share of the Conservation Easement value at the time of termination,. Those proportional shares of the Conservation Easement are as follows: 51% to Grantee and 49% to the United States. Draft I1 -10 -04 18 If, however, after the condemnation or eminent domain proceedings, a court of jurisdiction does not include, in the just compensation awarded as a result of the taking, the amount of the Conservation Easement value, then the Grantors shall not be responsible to share any proceeds awarded, All condemnation - related expenses incurred by the Grantors and Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 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, Sevevability The Conservation Easement created by this Deed shall be a servitude running with the land in perpetuity. Every provision of this Deed that applies to the Grantors or Grantee shall also apply to their respective agents, heir's, executor's, 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. 27. Merger The Parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Property. 28. Notices Any 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: Ira and Hazel Ward 1515 Ira Road Efland, NC 27243 Peggy and Mark Majors 201 Ward Street Graham, NC 27253 Donna and David Francis To the Grantee: Orange County ERCD PO Box 8181 Hillsborough, NC 27278 To the NRCS: State Conservationist 4405 Bland Rd., Suite 205 Raleigh, NC 27609 Draft 11 -10 -04 19 121 Normandale Drive Cary, NC 27513 Sandra and John Hannon 3601 Memory Lane Raleigh, NC 27604 John Ira III and Jenell Ward 4710 High Rock Road Efland, NC 27243 29. Grantor's Title Warranty 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, .30. 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. .31. Subsequent Easements /Restrictions on the Property The grant of any easements or use restrictions that might diminish or impair the agricultural viability m productivity of the Property or otherwise diminish or impair the conservation values of the Property is prohibited. Any such easements or restrictions shall be subordinated to this Conservation Easement, 32, Grantor's Environmental Warranty "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 Draft 11 -10 -04 20 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. Grantors warrant that it is in compliance with, and shall remain in compliance with, all applicable Environmental Laws. Grantors warrant that there are no notices by any governmental authority of any violation or alleged violation of, non - compliance or' alleged non - compliance with or any liability under any Environmental Law relating to the operations or conditions of the Property. Grantors further warrant that it has no actual knowledge of a release or threatened release of Hazardous Materials, as such substances and wastes are defined by applicable Federal and state law. Moreover, Grantors hereby promise to defend and indemnify Grantee and the United States against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with the release or, threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantors or any other prior owner of the Property. Grantors' indemnification obligation shall not be affected by any authorizations provided by Grantee to Grantors with respect to the Property or any restoration activities carried out by Grantee at the Property; provided, however, that Grantee shall be responsible for any Hazardous Materials contributed after this date to the Property by Grantee. Nothing in this Conservation Easement shall be construed as giving rise to any right or ability in Grantee or the United States, nor shall Grantee or the United States 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. 33. 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, Draft 11 -10 -04 21 .34. Recording Clause Grantee shall record this instrument and any amendment hereto in timely fashion with the Office of the Register of Deeds of Orange County, North Carolina, and may re- record it at any time as may he 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 11 -10 -04 22 IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above. Accepted: GRANTORS: John Ira Ward, Jr, Hazel J. Ward Peggy Majors Mark Majors Donna Francis David Francis Sandra Hannon John Hannon John Ira Ward, III Jenell Ward GRANTEE: ORANGE COUNTY, NORTH CAROLINA Barry Jacobs, Chair Orange County Board of Commissioners Draft 11 -10 -04 23 RNOW" By: Donna S. Baker, Clerk to the Board of Commissioners ACCEPTANCE OF PROPERTY INTEREST BY THE NATURAL RESOURCES CONSERVATION SERVICE The Natural Resources Conservation Service, an agency of the United States Government, hereby accepts and approves the foregoing Deed of Conservation Easement, and the rights conveyed therein, on behalf of the United States of America. Authorized Signatory for the NRCS Acknowledgments NORTH CAROLINA COUNTY OF ORANGE Draft 11 -10 -04 24 I, a Notary Public for said County and State do hereby certify that and wife personally appeared before me and acknowledged the due execution of the foregoing instrument. Notary Public My commission expires: NORTH CAROLINA COUNTY OF I, a Notary Public for said County and State do hereby certify that and husband personally appeared before me and acknowledged the due execution of the foregoing instrument.. Notary Public My commission expires: NORTH CAROLINA COUNTY OF I, a Notary Public for said County and State do hereby certify that and husband personally appeared before me and acknowledged the due execution of the foregoing instrument. Notary Public Draft 11 -10 -04 25 My commission expires: NORTH CAROLINA COUNTY OF I, a Notary Public for said County and State do hereby certify that and husband personally appeared before me and acknowledged the due execution of the foregoing instrument. Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE I, a Notary Public for said County and State do hereby certify that and wife personally appeared before me and acknowledged the due execution of the foregoing instrument, Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of Orange County, North Carolina do hereby certify that Donna S. Baker personally appeared before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its Draft 11 -10 -04 2 6 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: STATE OF NORTH CAROLINA COUNTY OF ORANGE The Foregoing (or annexed) Certificate(s) of Notary(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 Draft II -10 -04 27 EXHIBIT A PROPERTY DESCRIPTION [PLACEHOLDER] Draft 11 -10 -04 28