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HomeMy WebLinkAboutAgenda - 12-06-2004-6cORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 6, 2004 Action Agenda Item No. 6-G SUBJECT: Resolution of Approval -Agricultural and Watershed Protection Conservation Easement for John and Carolyn Lloyd DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENT(S): INFORMATION CONTACT: Resolution of Approval David Stancil, 245-2590 Vicinity Map Rich Shaw, 245-2591 Site Map (Exhibit B) Offer to Purchase and Contract of Sale TELEPHONE NUMBERS: Draft Conservation Easement Hillsborough 732-8181 Photos of Easement Area Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To consider a resolution to approve the acceptance of an agricultural and watershed protection conservation easement from John and Carolyn Lloyd, 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 586 acres of prime farmland and stream corridors through conservation easements, Other farm easements in the County have been acquired by Triangle Land Conservancy and Orange Water & Sewer Authority, John Lloyd contacted ERCD in February 2004 about his interest in placing a conservation easement on his farm located along Bradshaw Quarry Road and Teer Road in Bingham Township. Because of its location 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, OWASA responded with great interest in working on a joint project. The Lloyds raise beef cattle an the 130-acre farm that they have owned since 1957, Toms Creek, a major tributary of Cane Creek, flows along the northern boundary and into the nearby Cane Creek Reservoir. The Lloyds are considering converting their cattle operation to a managed commercial forestry operation. ERCD Staff and the County Attorney have worked with OWASA and the Lloyds to prepare a conservation easement that meets all parties' interests. The proposed easement would permanently protect 121 acres of the farm from non-agricultural and non-silvicultural uses. All future development rights would be purchased and extinguished, with the exception of two potential future house sites on four acres. A copy of the draft easement is attached. Because of the Lloyd's interest in planting trees on existing pasturelands for future commercial harvesting (several years from now), the proposed conservation easement includes special provisions to address commercial forestry activities. Any tree cutting (commercial or otherwise) must be in accordance with a Forest Management Plan prepared by a professional licensed forester and approved by Orange County and OWASA. New language requested by the Board at the October 5 meeting requires that a Harvest Plan be approved by the County prior to any commercial forestry activities and that the Plan require a) tree protection fencing along all 300-foot stream buffers, b) 100-foot buffers along public roads (also protected by tree protection fencing), c) notification of upcoming timber harvest to area landowners, and d) allowing adjacent landowners the opportunity to purchase the right to maintain buffers along their property lines. The new language is highlighted in bold print on Page 21. 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 far 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 $3,500 per acre, or an estimated $413,000. The specific, acreage will be determined by a survey of the property. Including closing and other transaction costs, the total Orange County share of the project cost is expected to be $215,000. The County's share would come from the alternative financing for conservation easements approved by the Board in FY 2002-03 ($192,000), augmented by the Lands Legacy Opportunities Fund ($27,000). The Budget office will bring a Capital Project Ordinance forward in an upcoming budget amendment abstract. RECOMMENDATION(S): The Manager recommends that the Board adopt 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 John and Carolyn Lloyd 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 Lloyd farm includes 121 acres in the Cane Creek protected watershed, consists of a majority of prime soils, and is located in an agricultural community with good access to farm markets; and WHEREAS, the Orange Water and Sewer Authority (OWASA) have agreed to collaborate on the joint acquisition of a conservation easement that will protect the prime farmland and riparian corridors that exist on the Lloyd farm with a conservation easement; and WHEREAS, a conservation easement on this property will ensure the preservation of this farmland for future generations and providing return on the property for the Lloyds; 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 awned by John and Carolyn Lloyd; 2) approve the execution of the Offer to Purchase and Contract of Sale and the Deed of Agricultural Conservation Easement with the Lloyds, 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 February 28, 2Q05. This the 6th day of December, 2QQ4, Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board ® Lloyd Boundary Main Roads Reservoir Q Watersheds Major Streams Vicinty Map ..,k.~. Lloyd Farm ~~ a ~~ ~~ F.~. 9820-78-6046 9820-87-4081 Govnry°f Orarge O Envlr°rtn°ni 6 Reswrte 130 Acres ~°^~°~°~~°^°C'"""°^I MJ 11/23/04 Q Existing Residential Envelopes - (.~ 40 ° U° 13° ~0J `°°~ © Conservation Corridor Agricultural and Watershed Protection ~~ Cleared (Agricultural Fields /Pasture) Conservation Easement O County of Omnge FOfeSI Envimnmenl8 Resourco !\/Streams .john and Carolyn Lloyd Consarvauonoeparimam 121.42 acres M Jones t 1/23IOA Q Parcel Boundary 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 Cazolina, (herein "OWASA"), 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 .JOHN D. LLOYD and wife CAROLYN LLOYD, (together referred to as "Seller"). WITNESSETH The parties 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. Property to 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 the 118 acres, more or less, of the 123 acres, more or less of two tracts of land identified as: (1) Orange County P.LN. 9820-78-6646 that has an Orange County tax reference of TMBL 6..16.,24 less that part of this tract of land located west of Bradshaw Quarry Road (SR 1115); and (2) Orange County P.IN. 9820-87-4081 that has an Orange County tax reference of TMBL 6.17..3. A more particular description of the Conservation Easement property will be attached to this Contract and incorporated herein as Exhibit B once the Survey of the Property that will be performed as prescribed in this Paragraph and Paragraphs 2 and 4 of this Contract is completed, Each party will sign and date the exhibit once attached in order to acknowledge their consent thereto, and once signed and dated, Exhibit B shall become an integral part of this Contract to the same degree as if it had been attached hereto and incorporated by reference on the date first above written. As used herein the word "Property" mea~rs and refers to the property subject to the Conservation Easement. Buyer and its 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 two tracts shall be calculated at the rate of Tluee Thousand Five Hundred Dollars ($3,500.00) per acre, with the acreage to be determined subject to plat of a new survey by Buyer at Buyer's expense by Freehold Land Surveys, Inc., or, at Buyer's election, pursuant to existing survey. 3. Closing Expenses. Buyer shall pay for preparation ofthe 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 azzy and all documents and papers necessary in connection with closing 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, are complete, and when Buyer's counsel bas 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 their affidavit in form acceptable to the Buyers that there is no environmental contamination upon the Property to their knowledge as of closing, and their warranty deed conveying the Conservation Easement to the parties Buyer, in fee simple, free of all liens and encumbrances. 5. Parties: Assienment; Tenns, 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 of this Contract, copies of all title information 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 oftheir interests in the property,. 7. Entire A~eement, This Contract contains the entire agreement of the parties, and there are 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 of Directors of Orange Water and Sewer Authority and the Board of Commissioners of Orange County as soon as the matter may be brought before those Boards for approval, and that upon their Board's failure to approve the transaction, Buyers may elect to rescind, and this Agreement shall thereafter 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 Enviromnental 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 9. Countemarts. This Contract isexecuted in tlu-ee counterparts, one to be retained by the Seller, one to be retained by OWASA and one to be retained by the 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 gy: AFFIX CORPORATE SEAL 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 10 SELLER: By: (SEAL) .JOHN D. LLOYD By: (SEAL) CAROLYN LLOYD 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 Carolina 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 My commission expires: NORTH CAROLINA ORANGE COUNTY day of , 2004. Notary Public I, , a Notary Public in acid for said County and State, do hereby certify that Jolm D. Lloyd and wife Carolyn Lloyd 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 Notary Public 2004 My commission expires: 11 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 aclmowledged 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 instnunent 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: BOCCDraft 11-.ZZ-04 12 Prepared by and return to: Geoffrey E Gledhill Coleman, Gledhill, Hargrave and Peek; P,O. Drawer 1529; Hillsborough, NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED CONVEYING AGRICULTURAL AND WATERSHED PROTECTION CONSERVATION EASEMENT This Deed of Agricultural and Watershed Protection Conservation Easement ("Conservation Easement") is granted on this _ day of , 200_, by .TORN D. LLOYD and wife CAROLYN LLOYD, having an address of 6303 Teer Road, Mebane, NC 27.302 (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 .Tones Ferry Road, Carrboro, NC 27510, (both together referred to herein as "Grantee") WHEREAS: Grantors are the sole owners in fee simple, of certain faun Property, more particularly described in Exhibit A, attached hereto and incorporated herein (the "Property"), which consists of approximately 118 acres of land, located in Bingham Township, Orange County, North Carolina and identified as "Tract 1"and "Tract 2" on the plat of'the Property titled..., prepared by..., which plat is recorded at Plat Boolc ,Page ,Orange County Registry (apart of property having the Orange County PINS 9820-87-4081 and 9820-78-6646). The Property includes buildings and other improvements.. The Property consists primarily of productive 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 bounded on one side by Toms Creek and a second, umiamed stream, both of which are tributaries to the Cane Creek Reservoir, a public drinking water supply reservoir serving Orange County, North Carolina. The Property is within the critical area of the Cane Creek Protected Watershed. BOCCDraft 11-11-04 13 The primary purposes of this Conservation Easement are to protect the agricultural soils and agxiculh~ral 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. Furthermore, the Property contains outstanding scenic qualities that can be enjoyed by the general public, namely, the views along Teer Road (State Road 1100) in Bingham Township. It is a secondary purpose of this Conservation Easement to protect these natural, wildlife habitat, and scenic resources, The agricultural resources of the Grantors' Property, and its contribution to the protection of the public drinking water supply, the nahiral habitat and the rural character of the area are collectively referred to as the "conservation values" of the Easement Area. 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 parties to be accurate as of the date of this Conservation Easement.. This Report maybe used by the Grantee to document any future changes in the use or character of the Property in order to ensure the terms and conditions of this Conservation Easement are fulfilled. This Report, however, is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a controversy over its use. The Grantors and Grantee have copies of this Report, and said report will remain on file at the office of the Orange County Environment and Resource Conservation Department. The Grantors and Grantee agree that the current agricultural use of, and improvements to, the Property are consistent with the conservation purposes of this Conservation Easement. The Grantors intend that the conservation values of the Property be preserved and maintained, and further, Grantors intend to convey to Grantee the right to preserve and protect the agricultural and other conservation values of the Property in perpetuity. The conservation purposes of this Conservation Easement are recognized by, and the grant of this Conservation Easement will serve, the following clearly delineated governmental conservation policies: (1) North Carolina General Statute 139-2 et seq., which provides that "it is hereby declared ..,that the farm, forest and grazing lands of the State ofNorth Carolina are among the basic assets of the State and the preservation of these lands is necessary to protect and promote the health, safety and general welfare of its people... it is hereby declared to be the policy of the legislature to provide for the conservation of the soil and resources of this State;" (2) North Carolina General Statute 106-58:3 et seg.., which states that "It is declared to be the policy of the State of North Carolina to promote the efficient production and utilization of the BOCC Draft 11-12-04 14 products of the soil as essential to the health and welfare of our people and to promote a sound and prosperous agriculture and nrral life as indispensable to the maintenance of maximum prosperity;" (.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 105-1.30,.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 Carolina Fazmland Preservation Trust Fund established in 1986 (N.C.G.S, 10G-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 Creek 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 Grantee 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 ofNorth Carolina; NOW, THEREFORE, for the reasons given and other good and valuable consideration and in consideration of the mutual covenants, terms, conditions and restrictions contained herein, the Grantors hereby grant and convey unto Grantee a Conservation Easernent, of the nature and character and to the extent hereinafter set forth, in respect to the Property as described in Exhibit A; BOCCDraft 11-d1-04 15 forth: The terms, conditions and restrictions of the Conservation Easement are as hereinafter set Grant of Agricultural and Watershed Protection Conser~~ation 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 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 voluntarily 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 parties agree that such development rights are ternrinated 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 transfered 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 ofPznpose The primary purposes of this Agricultural and Watershed Protection Conservation Easement are to enable the Property to remain in agricultural use by preserving and protecting its agricultural soils and agricultural viability and productivity, and to protect the 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 Property, or that would risk causing adverse impact to any stream tributary to Cane Creek Reservoir 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 mad Responsibilities Retained Gy 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, BOCCDraft 11-.Z1-04 16 and devise the Property, provided such transaction is subject to the terms of this Conservation Easement and written notice is provided to Grantee, together with any rights not specifically prohibited by or limited by this Conservation Easement, and consistent with this Conservation Easement.. Unless otherwise specified below, nothing in this Conservation Easement shall require the Grantors to take any action to restore the condition of the Property after any Act of God or other event over which they had no control. Grantors understand that nothing in this Deed of Conservation Easement relieves them of any obligation or restriction on the use of the Property imposed bylaw. 4. Right to Farn: Except as specific activities may be prohibited herein, 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 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 Pazagraph 9 of this Conservation Easement, 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 hereafter referred to as the "Conservation Corridor." Provided, the parties have agreed specifically that until May 1, 2005, Grantors' livestock may have access to that part of the stream(s) located East of Bradshaw Quarry Road on the Property; from and after May 1, 2005, no livestock shall be permitted access to the area within the Conservation Corridor. 5. Right of Access to Corservation Easement] Duty to Respect Grantor°s' Privacy 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 from trespassing on the Property, This Conservation Easement does not create any rights of the public in, on or to the Property, 6. Right to Use the Property for Customary Rural Enterprises Grantors retain the right to use the portion of the Property within the "Farmstead Area" (which contains approximately 4.5 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 BOCC Dr~afi 11-22-04 1 ~ 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 detemrines that the proposed use will not diminish or impair the conservation values of the Property. 7, Procedure to Construct Buildings mtd Other Improvements The Grantors' rights to construct or reconstruct buildings and other improvements are described in subparagraphs (a) through (i) 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 constmction activities. (a) Fences -Existing fences maybe repaired and replaced, and new fences Wray 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 & Lnprovements -Existing structures, including existing agricultural structures and existing improvements, maybe repaired, reasonably enlarged and replaced at their current locations within the "Farmstead 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 farm products predominantly grown or raised on the Property maybe built on the Property without any further permission of Grantee provided they are located in the "Farmstead Area." 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.. Furtlrerniore, structures, improvements and other impervious surfaces located in the "Farmstead Area," including those existing on the date of this Conservation Easement, shall not exceed 12 percent of the 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" maybe 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 -Two residential dwellings exist outside of the "Farmstead Area" on the Property. They are each depicted along with its "Residential Envelope" on Exhibit B. No more than two new residential dwellings maybe built on the Property within two two-acre building lots to be located on the Property within, "Future BOCCDraft 11-11-04 18 Residential Envelopes" to be determined in the future by mutual written agreement of tare Grantor and Grantee. The parties Grantee shall give their consent within a reasonable time if they determine that the proposed residential lot would not diminish or impair the conservation values of the Property or otherwise be inconsistent with this Conservation Easement. The land on which these existing and new residential dwelling are or may be located maybe subdivided fiom the Property, subject to all applicable Orange County zoning, subdivision and building code regulations, Nothing about Orange County's participation in or the signing of this Deed of Conservation Easement constitutes approval of the subdivision of the Property or of the permitting of these residential dwellings. All appurtenant structures (garage, sheds) for each existing and new residential dwelling shall be contained within the building envelope of the related existing and new residential dwelling,. (d) Recreational In:proven:ents -Grantors expressly reserve the right to engage in undeveloped, 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 constructed, placed or permitted to remain on the Property. (e) Utility Services mtd 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 parties 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.. 8, Subdivision The Property currently consists of two tracts, The further subdivision of tare Property, including its partition, is prohibited except as 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 permitted by the terms of this Conservation Easement, including but not limited to the requirements of agricultural viability of the Property, the restrictions on future development, the impervious surface limits on the Property as described in Paragraph 7(b) of this Conservation Easement, the necessity of a Conservation Plan, and the prohibition on activities that are described in this Conservation Easemett. It is understood that notice of this Conservation Easement will be included in any instrument recorded that subdivides, partitions or otherwise divides parcels. BOCCDraft 11-2.2-04 19 9. Co~zservntion Practices All agricultural operations on the Property shall be conducted 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 Techmical 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 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. 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 of non-cornpliance 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, 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,. 10. Foresi Manage~~zent Everywhere on the Property, trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, to remove non-native species, for pasture restoration, for firewood and other non-commercial uses, including construction of permitted improvements and fences on the Property, without the advance written permission of Grantee, 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. Within the "Farmstead Area" and "Existing Residential Envelope" identified on Exhibit B, and within not yet identified Future Residential Envelopes, trees may be planted, harvested and removed without the advance written permission of the Grantee, so long as done in accordance with the Conservation Plan and Forest Management Plan referred to in this Paragraph 10, so long as outside of the Conservation Corridor and, with respect to the "Future Residential BOCC Draft I1-2 ~-04 ~ ~ Envelopes," only within the building lot of each and only after the building lot is legally created by subdivision. Any other cutting, removal or harvesting of trees, including any commercial harvesting of trees, may be undertaken only if it occurs outside of the Conservation Corridor, outside of any wetlands, and only ifit is in accordance with the Conservation Plan referenced in Paragraph 9 of this Conservation Easement and a Forest Management Plan as set out below,. All forest management activities shall be conducted only in accordance with N.C. Division of Forest Resources Best Management Practices guidelines for timber management as the same maybe promulgated bylaw 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. All forest management activities must be in accordance with a written Forest Management Plan, prepared by a professional forester and approved by Grantee. The Forest Management Plan must be updated and re-approved by Grantee at least every ten (10) years so long as Grantors wish to continue to manage or harvest the forest. The Forest Management Plan required by this Paragraph 10 and a Harvest Plan prepared by a professional forester must be submitted to Grantee for approval at least thirty (30) days prior to any commercial harvest of timber, No cormercial silvicultural activity may occur until the Forest Management Plan and a more specific Harvest Plan have been approved by Grantee, The Harvest Plan must include the following: a) A statement signed by the forester acknowledging that management activities follow the terms of the easement and will be supervised by the forester; b) Landowner goals and the forester's silvicultural objectives & goals frorn the harvest; c) A timber inventory in targeted management areas with volume, stocking, and species data, and projected yields.. Inventory maybe estimated or omitted with prior written approval of Grantee in cases where it is not deemed necessary (such as pre- commercial thinnings). d) An inventory for the presence of rare, tlueatened or endangered species and other unique natural, geological or historic resources in targeted management areas which may require special treatment; e) Prescribed activities and precautions including protection methods for any unique natural, geological, or historical areas and erosion and sedimentation control actions for water quality protection and a smoke management plan if fire is to be prescribed; f) Description of property (timber sale area) access and constraints to access; under no circumstances will Grantee approve a Forest Management Plan or a Harvest Plan containing strearn or wetland crossings; g) Descriptive map(s) of all management areas, including logging deck(s), skid trails, roads, streams, streamside management zones (buffers) and areas of special concern, including wetlands; BOC.CDraft 11-Z2-04 21 h) Clear marking of the 300-foot-wide stream Duffers and the installation of tree protection fencing at least 300 feet from the streams protected bV the stream buffers„ Inadequate buffer widths and/or potential for excessive disturbance of stream buffers are grounds for rejection of a Harvest Plan by Grantee; i) Aesthetic considerations including impacts on views from public roads. Aesthetic impacts should be minimized to the greatest extent possible by use of un-harvested buffers (minimum of 100 feet along Bradshaw Quarrv Road and Teer Road) protected by the installation of tree protection fencing; careful selection of harvest areas, harvest techniques, and by avoiding the use ofclear-cutting unless absolutely necessary and approved as part of the Forest Management Plan and the Harvest Plan by Grantee; and j) Notification of the upcoming timber harvest to all adjacent landowners, including an offer that they be given an opportunity to purchase the right to maintain unharvested buffers along their property boundary. The property shall be posted along, but outside of the right of way of, Teer Road and Bradshaw Quarrv Road with notice of planned commercial timber harvests at least thirty (30) days prior to any commercial harvest of timber. Grantee's approval of the Harvest Plan shall not be unreasonably witlrkreld, but maybe withheld or conditioned if prescribed actions may compromise the conservation values of the property, or' if it does not adequately address all required items listed above or other issues pertinent to the intent of this Conservation Easement. 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 will be limited to one acre in total surface area and will be restored as soon as practicable after the disturbance,. 12. Paving and Road Construction 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 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 and that any such road covered by any impervious material including rock or gravel will not cause the impervious surface limits in Paragraph 7 to be exceeded,. BOCCDr°aft 11-21-04 22 1.3, Dumping and Traslr 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 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 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, lease, sell or otherwise separate such water rights from title to the Property itself, 1 S. Natm°al Resource Restoration mrd 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, signs required as a condition of grant reimbursement by the Clean Water Management Trust Fund, 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 Gr°antors 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: BOCC Draft 11-22-04 2 3 (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 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) Liabilih~ mtd htdenmification -- 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 bylaw. 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. Extinguislamettt 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 orr or transferred to any portion of the 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, 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 tlrrough,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 BOCC Dr°aft I1-.22-04 ~ 4 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 beaz 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 pazty as provided bylaw. 20. Transfer of Conservation Easement Either of the parties 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 assurne the responsibility imposed by this Conservation Easement. 11. Transfer of Proper°ty The Grantors agree to incorporate by reference the terms of this Conservation Easement in any deed ar other legal instrument by which they transferor 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 pazt 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. ll. Amendment of Conservation 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. 23, Procedro•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 ofboth the Grantors and the parties Grantee, terminate BOCCDraft II-22-04 25 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 forty-nine percent (49 %) 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. 29. Proced:a•e iir the Event of Conderrnratiwr or° Eminent Dorrrain 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 any or all of the Property is sold or taken for public use, then, as required by Section L170A-14(g)(6) of the IRS regulations, Grantee shall be entitled to the proportionate value of the Conservation Easement, which has been predetermined at forty-nine percent (49%) of the Property's umestricted 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 or 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. BOCC Draft 11-22-04 2 6 25. Interpr°etation 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 maxirnum effect to its conservation purposes. Z6. Perpetual Duratior:;~ Severability The Conservation Easement created by this Deed shall be a servitude running with the land in perpetuity. Every provision of this Deed that applies to the Grantors or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear, Invalidity of any of the covenants, terms or conditions of this Conservation Easement, or any part thereof by court order or,judgment shall in no way, affect the validity of any of the other provisions hereof which shall remain in full force and effect, 27. Notices Any notices required by this Deed shall be in writing and shall be personally delivered or sent by first class mail to the 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: Tohn and Carolyn Ldoyd 6303 Teer 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 28. 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; uid (b) Public Road rights of way affecting the Property; and (c) Current Orange County property taxes and any deferred taxes as provided by law. BOCC Draft 11-21-04 2 ~ 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. Arty such liens shall be and remain subordinate to this Conservation Easement. 30. Subsequent Easements/Restrictions a: 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. Grm:tor°'s Environmental Wm•ranry The Grantors wazrant 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. 31.. Er:tire Agreen:w:t This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, and understandings or agreements relating to the said easement. 33. Recording Clause 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 be required to preserve its rights under this Conservation Easement. TO HAVE AND TO HOLD this Deed of Conservation Easement unto Grantee, its successors and assigns, forever. [The remainder of this page is intentionally left blanlt. Signature page follows.] BOCC. Draft 11-11-04 28 IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their bands on the date first written above. GRANTORS: .Tolui Dewey Lloyd Carolyn S, Lloyd Accepted: GRANTEE: ORANGE COUNTY, NORTH CAROLINA By: Barry Tacobs, Chair Orange County Board of Commissioners ATTEST: By: Donna S. Baker, Clerk to the Board of Commissioners ORANGE WATER AND SEWER AUTHORITY AFFIX CORPORATE SEAL Bv: Ed Kerwin Executive Director ATTEST: By: Secretary BOCCDraft 11-22-04 29 Aclrnowledgments NORTH CAROLINA COUNTY OF ORANGE I, _ that a Notary Public of Orange County, North Carolina do hereby certify and wife personally appeared before me and acknowledged the due execution of the foregoing instrument. This the _ day of , 200_ Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of Orange County, North Carolina do hereby certify that Donna S. Baker personally appeared before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its name by Barry Jacobs, Chair of the Orange County Board of Commissioners, and attested by her as Clerk to said Board of Commissioners. Wihress my hand and official stamp or seal this the _ day of , 200_ Notary Public My commission expires: BOCC D~°aft 11-2.2-04 3 0 NORTH CAROLINA COUNTY OF ORANGE 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. 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 BOCCD~~aft 11-.1d-04 31 EXHIBIT A PROPERTY DESCRIPTION Bocc n,~af 11-?z-o4 a a EXHIBIT B PRESENT CONDITION MAP OF THE CONSERVATION EASEMENT J~ N w c d E d yE w W C G R O ~ L N~ N v ~ r Up N T ~ ,~ L a~ a w b 3 0 Y 3 on 0 0 m a 0 3 M U 0 H v m 0 a w v v F b ~ ~ o .~ ~ o ~ 3 m ~ ~w N N o ~ ~ q ~[[ G 5 +~ O 4r+ N N a p b v b 0 N m x