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HomeMy WebLinkAboutAgenda - 12-09-2003-5aORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 9, 2003 Action Agenda Item No. 5-d SUBJECT: Resolution of Approval and Acceptance of Grant -Agricultural Conservation Easement with Everett and Lewis Cheek DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) No Conservation ATTACHMENT Resolution of Approval Property Map Draft Conservation Easement Conservation Easements Capital Project Ordinance 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 farmland preservation conservation easement from Everett and Lewis Cheek, and acceptance of a grant from the federal Farm and Ranch Land Protection Program, BACKGROUND: The acquisition of agricultural conservation easements to help preserve County farmland is a longstanding goal of the Board of Commissioners and is a priority of the Lands Legacy Program. Acquisition of the County's first agricultural conservation easement occurred in 2001, followed by two others in 2002. Similar efforts by the Triangle Land Conservancy and the Orange Water & Sewer Authority have also been successful. In July 2002, Orange County, in cooperation with the NRCS/Soil and Water Conservation District, 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 belongs to Everett and Lewis Cheek. Market appraisals were conducted far each farm to determine the purchase price for the easements. Grant fiords totaling $784,155 for all three farms were awarded in September 2002. Of that total, $235,255 was allocated to the Cheeks' farm. The Cheeks raise beef cattle on their Lemola Ayshire Farm located off Dairyland Road in the University Lake watershed, The easement would protect an 82.6-acre section of the farm, All future non-agricultural development rights would be purchased through the easement, with the exception of one future house lot as denoted in the easement. The easement will also help to protect a portion of the Pickard's Mountain Natural Area and Morgan Creek, which flows through the farm on its way to the University Lake public water supply. ERCD Staff and the County Attorney have worked with the Cheeks to craft an easement that meets the family's needs and the County's interests. The easement also conforms to federal guidelines pursuant tc 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 County Soil and Water/NRCS staff. FINANCIAL IMPACT: The cost of the easement purchase is $570,282, or $6,904 per acre, Including closing and other transacticn costs, the total cast of the project is $580,000, with $235,2,55 of this amount to be reimbursed by the federal Farm and Ranch Land Protection Program, The County's share of the cost ($345,000) 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 Easements Capital Project Ordinance approved by the Board on March 24, 2003, The attached Conservation Easements Capital Project Ordinance allocates $345,000 of the $1,000,000 towards this purchase. RECOMMENDATIONS: The Manager recommends that the Board: 1. 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 January 31, 2004, 2. Authorize the County to accept the $235,255 grant award for the Cheek easement, and 3, Approve the attached Conservation Easements Capital Project Ordinance, ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Approval of Agricultural Conservation Easement between Orange County and Everett and Lewis Cheek 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 Cheek farm includes 82,6 acres in the University Lake protected watershed, consists of a majority of prime soils, and is adjacent to other natural resource lands already protected by conservation easements; and WHEREAS, a grant in the amount of $235,255 was awarded to Orange County from the federal Farm and Ranch Land Protection Program to protect the fixture of this farm with an agricultural conservation easement; and WHEREAS, a conservation easement on this farm provides awin-win scenario -ensuring the preservation of this farmland for future generations and providing return on the property for the Cheek family: NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners does hereby 1) accept on behalf of Orange County the farmland preservation conservation easement in the property owned by Everett and Lewis Cheek that is described in the conservation easement agreement; 2) approve the execution of this conservation easement agreement with Everett and Lewis Cheek, in accordance with the terms of the attached 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 January 31, 2004, BE IT FURTHER RESOLVED that the Board accepts the grant award of $235,255 from the federal Farm and Ranch Land Protection Program, and authorizes the Chair to sign the grant agreement. This the 9~' day of December, 2003. Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board ~, GB _. O S t' D _- - - _ h _ _ ..y '..'/ O i ,` r y ~ i -'--i~ >~ \~ ~ ~ \~~ `.__y„ <S ~_.._ ~~ ~ 4 r Cheek Property Orange County Property Q Pickard Mountain Natural Area !Stream ','~ Pond Existlng Conservation Easements /~/ Road Q Parcel Boundary ~\ Cheek Property -Overview 0 800 1600 Feet ,{<< ® '. ,~ v: ~i~, ._., Draft 10-1.5-03 (clean) s STATE OF NORTH CAROLINA COUNTY OF ORANGE DEED OF AGRICULTURAL CONSERVATION EASEMENT This Deed of Agricultural Conservation Easement ("Easement") is granted on this _ day of , 2003, by EVERETT WESLEY CHEEK and LEWIS ROBERSON CHEEK, brothers, having an address of 1811 Dairyland Road, Chapel Hill, NC 27516 ("Grantors"), to ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 ("Grantee"). WHEREAS: 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 82,6 acres of land, located in Chapel Hill and Bingham townships, Orange County, North Carolina and identified on the plat of property titled "Boundary Survey for Lewis Cheek and Everett Cheek," prepared by Brady H. Goforth and Associates, Inc., which plat is recorded at Plat Book , Page _, Orange County Registry (PIN: 9850-96- 5741).. 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, U,S. Department of Agriculture. It is the primary purpose of this 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.. A portion of the Property is within the Pickard's Mountain Natural Area, described on Pages 96-97 of the Inventory of the Natural Areas and Wildlife Habitats of Ormrge Couniy, North Carolina, written by Dawson Sather and Stephen Hall in coordination with the North Carolina Natural Heritage Program in December 1988. Morgan Creek flows through the property on its way south to University Lake, a water supply reservoir for the towns of Carrboro and Chape] Hill, The entire property is within the University Lake Watershed. Furthermore, the Property contains outstanding scenic qualities that can be enjoyed by the general public, namely as the views along Dairyland Road (State Road 1112) northwest of Carrboro and Chapel Hill. It is a secondary purpose of this Easement to protect these natural, wildlife habitat, and scenic resources. The agricultural, natural, wildlife habitat, and scenic resources of the Property are collectively referred to as the "conservation values" of the Property.. Draft 10-IS-0.3 (clean) 6 The specific conservation values of the Property and its current use and state of improvement are described in a Baseline Report ("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 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 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 Easement. The Grantors intend that the conservation values of the Property be preserved and maintained, and further, Grantors intend to convey to the Grantee the right to preserve and protect the agricultural and other conservation values of the Property in perpetuity. The conservation purposes of this Easement are recognized by, and the grant of this Easement will serve, the following clearly delineated governmental conservation policies: (1) Sections 1238 h and 12.38 i of the Food Security Act of 1985, as amended, which authorizes the Farm and Ranchland 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 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 106-58.3 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 for the enforceability of restrictions, easements, covenants or conditions "appropriate for retaining in 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 Draft 10-1.5-03 (clean) ~ 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 10.5-130.34 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 Rural Buffer,. 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 Grantor agrees to create and implement a conservation plan (hereinafter the "Conservation Plan") that is developed utilizing the standards and specification of the NRCS field office technical guide and 7 CFR part 12, and is approved by the local 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 Easements under the applicable laws of the State of North Carolina; NOW, THEREFORE, for the reasons given, and in consideration of their mutual covenants, terms, conditions and restrictions contained herein, the parties agree as follows. Grant of Agricultccral Easecuent Grantors hereby voluntarily grant and convey to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual Agricultural Conservation Easement, 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 Easement, that are now or hereafter inherent in the Property. The parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Property, as it now or hereafter may be bounded or described, or to any other property. Draft 10-1.5-03 (clean) 8 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. No activity that would significantly 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 Easement are consistent with the primary purpose stated above, it is within the purpose of this Easement to also protect those values, and no activity that would significantly impair those values shall be permitted. 3. Rig/tts and Respotrsibilities Retained by Grantors Notwithstanding any provisions of this Easement to the contrary, 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, together with any rights not specifically prohibited by or limited by this Easement, not inconsistent with the Statement of Purpose herein, Unless otherwise specified below, nothing in this 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 prohibitions below and that referenced in Paragraph 14 hereafter, farming, grazing, horticultural and animal husbandry operations are prohibited EXCEPT those conducted consistent with Best Management Practices promulgated by the State of North Carolina and in conformity with a Conservation Plan as required in Paragraph 10 hereafter. Although traditional and existing agricultural activities shall be permitted on the Property under the terms set forth herein, industrial or factory type agricultural operations or animal husbandry characterized by the continuous confinement of livestock in controlled environments for the purpose of raising, feeding and fattening for market and accompanying slaughtering facilities shall be prohibited. 5. 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 Easement is not intended to create any rights of the public in, on or to the Property. Draft 10-IS-0.3 (clean) 9 6.. Right to Use the Property for Customary Rural Enterprises Grantors retain the right to use the portion of'the Property within the six-acre "Farmstead Area" 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, sawmills, firewood distribution, bed and breakfast, or educational programs so long as such activities are consistent with Orange County zoning regulations and permits required by and issued by Orange County under its laws and ordinances. Conducting customary rural enterprises on any other part of the Property is not permitted without the advance written permission of the Grantee in each instance.. The Grantee shall not give such permission unless the Grantee determines that the proposed use will not substantially diminish or impair the conservation values of the Property. 7. Procedure to Construct Buildings and Other bccprovements 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 the Grantee and obtain written permission. All construction or reconstruction is subject to Orange County zoning regulations and must be consistent with permits required by and issued by Orange County under its laws and ordinances 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 customazy management of livestock and wildlife or to fence off the perimeter of the Property without any further permission of the Grantee. (b) Agriccdutral Structures & Lctproventettts -- Existing, agricultural structures and improvements may be repaired, reasonably enlarged and replaced at their current locations within the six-acre "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 the Grantee provided they are located in the six-acre "Farmstead Area" as identified on Exhibit B, and more particularly described in the Baseline Report.. Any new buildings, structures or improvements proposed for locations outside the six-acre "Farmstead Area" may be built only with the advance written permission of the Grantee. The Grantee shall give such permission within a reasonable time, unless it determines that the proposed building, structure or improvement would significantly diminish or impair the conservation values of the Property or otherwise be inconsistent with the purposes off this Easement. (c) Farrar Support Housing - No more than one (1) new single - or multi-family - dwelling to house farm labor tenants, employees or others engaged in agricultural production on the Property may be built on the Property without any further permission of the Grantee, Dr°aft 10-1.5-0.3 (clears) to provided it is less than 1,000 square feet in floor size and it is located within the six-acre "Farmstead Area" identified on Exhibit B . At the time that construction of such structures is to commence, Grantee shall be notified so that its records can be updated. (d) Single-Fancily Residential Dwellings -- No more than one (1) new single-family residential dwelling, together with reasonable appurtenances such as garage and sheds, may be built on a subdivided lot from the Property in the two-acre "Residential Area" identified on Exhibit B, subject to all applicable Orange County zoning, subdivision and building code regulations. All appurtenant structures shall be contained within the "Residential Area." At the time construction of such dwelling is to commence, Grantee shall be notified so that its records can be updated. It is understood that Grantors may relinquish its rights to construct the new residential dwelling referred to herein at any time, (e) Recreational Improvements -New recreational improvements may be built within the area identified and marked as "Farmstead Area" on Exhibit B without the advance written permission of the Grantee. Any new recreational improvements, including natural surface trails for pedestrian use, proposed f'or locations outside the area identified and marked as "Farmstead Area" on Exhibit B may be built only with the advance written permission of the Grantee. The Grantee shall give such permission within a reasonable time, unless it determines that the proposed building, structure or improvement would significantly diminish or impair the conservation values of the Property,. However, under no circumstances shall golf courses or ranges, airstrips or helicopter pads be constructed, placed or permitted to remain on the Property„ Recreational motorized vehicle use is prohibited from any locations on the Property. (fl Utility Services mcd 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.. Maintenance, repair or improvement of a septic system(s) or other underground sanitary system which exists on the Property at the time of this Easement, or the construction of a septic or other underground sanitary system, for the benefit of any of the improvements permitted herein, is permitted.. The construction of a new well system and/or a new septic or other underground sanitary system on the Property is permitted within the area identified and marked as "Farmstead Area" on Exhibit B, but only if necessary for service of the existing or replacement residential dwelling located immediately adjacent to the Property and identified by Orange County Registry as PIN 9850-97-S1SS. 8. Scebdivision The Property currently consists of one single tract.. Hereafter, the Property may only be subdivided into three (3) separate parcels. Thereafter, the further subdivision of the Property, the recording of a subdivision plan, partition, or any other division of the Property into four or more parcels, is prohibited. This prohibition applies regardless of how many Draft 10-LS-23 (clean) 11 separately described parcels are contained in the legal description attached as Exhibit A, In any event, all terms, restrictions, and conditions of this Easement shall apply to any subdivided parcel permitted by the terms of this paragraph, including but not limited to the requirements of agricultural viability of the Property, the restrictions on future development, the necessity of a Conservation Plan, and the prohibition on certain enunciated activities.. It is understood that notice of'this Easement will be recorded on any subdivided, partitioned or otherwise divided parcels.. 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 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 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 the Grantee of the Grantors' non-compliance, The Grantee shall take all reasonable steps (including efforts at securing voluntary compliance and, if necessary, appropriate legal action) to secure compliance with the Conservation Plan following written notification from NRCS that (a) there is a substantial, ongoing event or circumstance of non-compliance with the Conservation Plan, (b) NRCS has worked with the 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 Farmland Protection Program and are not intended to affect any other natural resources conservation requirements to which the Grantors may be or become subject, The land application storage and placement on the Property of domestic septic effluent and municipal, commercial or industrial 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 regnlations. Draft 10-1.5-03 (clean) 1 ~ Cattle and other livestock are allowed to exist and to graze on the Property, except within the locations identified and marked as "50-foot Stream Buffer" and as "Forest" on Exhibit B. 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. Any other cutting, removal or harvesting of trees may be undertaken within the areas identified and marked as "Forest" on Exhibit B only if a) the purpose is for clearing land for cultivation or use by livestock, and b) it occurs outside of a 50-foot buffer from both sides of Morgan Creek that runs through the property and is identified on Exhibit B, and c) it occurs outside of the Pickard's Mountain Natural Area, which is located in the western end of the Property and is identified on Exhibit B, and d) it is in accordance with either the Conservation Plan referenced in Paragraph 9 herein or a forest management plan that is consistent with the above-referenced Conservation Plan and prepared by a professional forester approved by Grantee, such approval to not be unreasonably withheld. 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. Fruit bearing trees may be planted for and removed from an orchard within in the area identified and marked as "Agricultural Fields" on Exhibit B without the advance written permission of the Grantee.. 11, Mining There shall be no filling, excavation, dredging, mining or drilling, removal of topsoil, sand, grave], 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 and as reasonably necessary for any permitted maintenance, construction or reconstruction on the Property. 12, Paving mtd Road Construction Construction and maintenance of unpaved farm roads that may be reasonably necessary and incidental to carrying out the improvements and uses permitted on the Property by this Easement are permitted. Other than the existing road within the Farmstead Area, as indicated on Exhibit B, no portion of the Property shall be paved or otherwise covered with concrete, asphalt, or' any other impervious paving material, without the advance written permission of the Grantee, The Grantee shall not give such permission unless the Grantee determines that the proposed paving, or covering of the soil, or the location of any such road, will not Draft 10-IS-0.3 (clean) 13 substantially diminish or impair the conservation values of the Property. Gravel roads are not to be considered as "impervious paving material" for the purposes of this Easement. 1.3. Dumping and Traslz No trash, refuse, vehicle bodies or parts, rubbish, debris, junk, waste, radioactive or hazardous waste, shall be placed, stored, dumped, buried or permitted to remain on the Property, except as reasonably required for the use of the Property for agricultural activities, and except as in accordance with applicable local, state and federal laws and regulations. Materials located in a dump site existing as of the date of this Easement and described in the Baseline Report, may remain as long as there is no further expansion of that site. The location of the dump site is indicated on Exhibit B. The storage of agricultural products, byproducts and agricultural equipment on the Property is permitted, so long as such storage is done in accordance with all applicable government laws and regulations.. 14, Water Rigliis 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, except as may be necessary for a potential well site for an existing or replacement residential dwelling located immediately adjacent to the Property consistent with Paragraph 7(f), 15. Natrtral Resource Restoration anti Enhancentet:t Activities Notwithstanding any terms contained within this 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 the NRCS.. 16, Ongoing Respot¢sibilities of Grantors mrcl Grantee Other than as specified herein, this Easement is not intended to impose any legal or other responsibility on the Grantee, or in any way to affect any existing obligation of the Grantors as owners of the Property. Among other things, this shall apply to: (a) Taxes -- The Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If the Grantee is ever required to pay any taxes or assessments on its interest in the Property, the Grantor will reimburse the Grantee for the same. (b) Upkeep and Maintenance -- The Grantors shall continue to be solely responsible for the upkeep and maintenance of the Property, to the extent it may be required by law, The Grantees shall have no obligation for the upkeep or maintenance of the Property, Draft 10-1.5-03 (clemr) 14 (c) Liability and L:dem~aification -- Grantors agree to indemnify and hold Grantee and the United States of America 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 its agents, in which case liability shall be apportioned accordingly. In addition, Grantors agree to maintain liability insurance covering the Property with the limits as follows: $300,000; 300 000• and $300,000; 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 Easement and within IO days of each insurance renewal date. 17. Extinguis)rment of Development Rights Except as otherwise reserved to the Grantors in this 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 hereafrer may be bounded or described, or to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Property or any other property. 18. Enforcement With at least 14 days advance written notice provided to the Grantors or with the Grantors' prior verbal consent, the Grantee shall have the right to enter the Property for the purpose of inspecting for compliance with the terms of this Easement. The Grantee shall have the right to prevent violations and remedy violations of the terms of this 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 Easement. Except when an ongoing, or imminent violation could irreversibly diminish or impair the conservation values of the Property, the Grantee shall give the Grantors written notice of the violation and thirty (.30) days to cure the violation, before commencing any legal proceedings. If a court with jurisdiction determines that a violation may exist or has occurred, the Grantee may obtain an injunction to stop the 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 the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. The failure of ffie Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time. In any case where a court finds no such violation has occurred, each party shall bear its own costs. In the event that Grantee fails to enforce any of the terms of this 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 Easement through any and all authorities available under Draft 10-1.5-0.3 (clean) 15 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 Easement without the prior consent of the Secretary of the United States Department of Agriculture and payment consideration to the United States, then, at the option of such Secretary, all right, title, and interest in this Easement shall become vested in the UNITED STATES OF AMERICA. 19. Transfer of 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, the Grantee shall have the right to transfer the Easement created by this Deed to any public agency or to any private nonprofit organization approved by Grantee, such approval to not be unreasonably withheld, that, at the time of transfer, is a qualified organization under Section 170(h) of the U.S. Internal Revenue Code, as amended and under NCGS 121-34 et seq., provided the agency or organization expressly agrees to assume the responsibility imposed on the Grantee by this Deed. If the Grantee ever ceases to exist or no longer qualifies under Section 170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibility imposed by this Easement. 20. Trmtsfer of Property The Grantors agree to incorporate by reference the terms of this 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 the Grantee in writing at least thirty (.30) days before conveying the Property, or any part thereof or interest therein. Failure of Grantors to do so shall not impair the validity of this Easement or limit its enforceability in any way. 21. Amendment of Easement This Easement may be amended only with the written consent of the Grantee and the Grantors. Any such amendment shall be consistent with the Statement of Purposes of this Easement and with the Grantee's 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 approval from the United States Department of Agriculture, Natural Resources Conservation Service. 22. Procedure irz the Event of Terrnir:ation of 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 Easement, a court with jurisdiction may, at the ,joint request of both the Grantors and the Grantee and with prior Draft 10-1.5-03 (clean) 16 consent of the United States Department of Agriculture as provided herein, terminate or modify the Easement created by this Deed in accordance with applicable state law. If the Easement is terminated and the Property is sold then as required by Section 1.1 70A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to ercent % of the gross sale proceeds or condemnation award equal to the ratio of the appraised value of this Easement to the unrestricted fair market value of the Property, as these values are determined on the date of this 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 _%a, for the Grantee and _'%' for the United States of America.. The Grantee shall use its proceeds consistently with the general conservation purposes of this Easement.. All termination related expenses incurred by the Grantors and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein. 23. Procedure in the Event of Condemnation or Eminent Domain Grantors and Grantee recognize that the partial sale of'this Easement gives rise to a property right, immediately vested in the Grantee, with a fair market value equal to the proportionate value that the Easement bears to the value of the Property prior to the restrictions imposed by the 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 the Grantee for the value of the property right vested in the Grantee at the time of the signing of this 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 Easement on all or part of the Property, the Easement may be terminated or modified accordingly through condemnation proceedings.. If the 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- 14(g)(6) of the IRS regulations, the Grantee shall be entitled to the proportionate value of the Easement, which has been predetermined at percent (_%) of the Property's unrestricted value, subject to any applicable law that expressly requires for a different disposition of the proceeds. The Grantee shall use its proceeds consistently with the general conservation purposes of this Easement. If this Easement is extinguished or terminated, the United States Department of Agriculture, Natural Resources Conservation Service and the Grantee shall receive its proportional share of the Easement value at the time of termination.. Those proportional shares of the Easement are as follows: _%; to Grantee and _%' to the United States Department of Agriculture, Natural Resources Conservation Service.. 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 Draft 10-I 5-03 (clean) 1 ~ amount of the Easement value, then the Grantor shall not be responsible to share any proceeds awarded.. All termination-related or condemnation-related expenses incurred by the Grantors and the Grantee shall be paid out of any recovered proceeds prior to distribution of the net proceeds as described herein,. 24, Interpretation This Easement shall be interpreted under the laws of'the State of North Carolina, resolving any ambiguities and questions of'the validity of specific provisions so as to give maximum effect to its conservation purposes. 2.5. Perpetual Duration; Severability The 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 the 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 Easement, or any part thereof by court order or judgment shall in no way, affect the validity of any of the other provisions hereof which shall remain in full force and effect. 26. 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 the 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: To the Grantee: To the NRCS: Everett and Lewis Cheek Orange County ERCD State Conservationist 1811 Dairyland Road PO Box 8181 4405 Bland Rd., Suite 205 Chapel Hill, NC 27516 Hillsborough, NC 27278 Raleigh, NC 27609 27. Grantor's Title Warrmrty 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, Draft 10-1.5-03 (clean) 1 & 28. Subsegtterrt Liens on Property No provisions of this Conservation should be construed as impairing the ability of Grantors to use the Property as collateral for subsequent borrowing. Any such liens shall be subordinated to this Easement. 29. Subsequent Easemerets/Restrictions on 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 Easement. 30. Grantor's Environmental Warrmrty The Grantors warrant that they have no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property, as such substances and wastes are defined by applicable federal and state law, and hereby promise to defend and indemnify Grantee and United States 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 Grantor 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 Easement shall be construed as giving rise to any right or ability in Grantee ar the United States, nor shall Grantee or the ilnited 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. TO HAVE AND TO HOLD this Deed of Conservation Easement unto Grantee, its successors and assigns, forever. IN WITNESS WHEREOF, the Grantors and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTORS: Everett Wesley Cheek Lewis Roberson Cheek Accepted: Draft 10-1.5-03 (clean) 19 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 ACCEPTANCE OF PROPERTY INTEREST BY THE NATURAL RESOURCES CONSERVATION SERVICE The Natura] Resource Conservation Service, an agency of the United States Government, hereby accepts and approves the foregoing Conservation Easement deed, and the rights conveyed therein, on behalf of the United States of America. Authorized Signatory for the NRCS D~°aft 10-1.5-03 (clean) Z ~ Acknowledgments NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public of Orange County, North Carolina do hereby certify that and 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 name by Barry Jacobs, Chair of the Orange County Board of Commissioners, and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the day of , 200_. Notary Public My commission expires: Draft 10-1.5-03 (clew:) 21 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.. Toyce H. Pearson, Register of Deeds This instrument prepared by and return to: Geoffrey E. Gledhill Coleman, Gledhill, Hargrave and Peek P,Q. Drawer 1529 Hillsborough, NC 27278 22 Conservation Easements Capital Project Ordinance Be it ordained by the Orange County Board of Ccunty Commissioners that pursuant to Section 13,2 of Chapter 159 of the General Statutes of North Carolina, the following capital project is hereby adopted, Section 1. The project authorized provides funds for the acquisition of conservation easements to help preserve County farmland with a priority placed on farms with a strong conservation track record in water supply watersheds. Financing for the project includes proceeds from private placement loans and federal grant funds from the USDA Natural Resource Conservation Service, Section 2. The officers of the County are hereby directed to proceed with the project within the budget contained herein, Section 3. The following revenue is anticipated to complete this project: Through FY 2002-03 FY 2003-04 Through FY 2003-04 Sales Tax $0 $0 $0 Bond Funds $0 $0 $0 Private Placement $1,000,000 $0 $1,000,000 Grant Funds $784,155 $0 $784,155 Fees $0 $0 $0 Other $0 $0 $0 Total Funding $1,784,155 $0 $1,784,155 Section 4. The following amount is appropriated for this project: Through FY 2002-03 FY 2003-04 Through FY 2003-04 Land/Building: Walters Easerrrertt $725, $725, VdpeEasement $0 $73,100 $73,1 Cheek Easeir~errt $0 $580,000 $580, Unallocated $1,784,155 ($1,378,100) $406,0 Total LarxUBuilding $1,784,155 $0 $1,784,155 Design $0 $0 $0 Construction $0 $0 $0 Other $0 $0 $0 Total Costs $1,784,155 $0 $1,784,155 Section 5. This ordinance supersedes all previous Conservation Easement Capital Project Ordinances for Orange County, Section 6. This ordinance shall be in effect from the date of adoption until June 30, 2005 Adopted this 9th day of December 2003,