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HomeMy WebLinkAbout2009-087 Purchasing - Friends of Moorefields, Effie Draper-Savage - Nellie Draper Dick Memorial Foundation - Offer to Purchase and ContractPrepared 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 OFFER TO PURCHASE AND CONTRACT THIS OFFER TO PURCHASE AND CONTRACT ("Agreement"), made and entered into this the'Z° day of ~~'~~'; 2009 by and between the FRIENDS OF MOOREFIELDS, a North Carolina non-profit corporation, TRUSTEE of the EFFIE DRAPER-SAVAGE- NELLIE DRAPER DICK MEMORIAL FOUNDATION, having an address of 2201 Moorefields Road, Hillsborough, North Carolina 27278, hereafter called "Seller", and ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate, a political subdivision of the State of North Carolina, having an address of P.O. Box 8181, Hillsborough, North Carolina 27278, hereafter called "Buyer"; WITNESSETH: Buyer hereby offers to purchase and Seller, upon acceptance of said offer, agrees to sell and convey, all of that plot, piece or parcel of real property located in Orange County, North Carolina, which said real property is hereinafter referred to as "the Property" and is more particularly described as follows: 1 The approximately 13 acres of land and any improvements thereon, together with the easement for ingress, egress and regress described in Exhibit B hereto (hereafter "the Easement") which land, including the Easement, is illustrated on the GIS map that is Exhibit A hereto. The Property is identified as part of Orange County P.I.N. 9854-70-2643, Orange County tax map 3.51..3 and Orange County P.I.N. 9853-79-7619, Orange County tax map 3.51..3H. The Easement is located on Orange County P.I.N. 9853-79-7619, Orange County tax map 3.51..3H. THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE AS FOLLOWS: 1. PURCHASE PRICE: The purchase price for the Property shall be ONE HUNDRED AND FORTY THREE THOUSAND 00/100 DOLLARS ($143,000). The purchase price shall be paid by payment in cash at the closing. 2. TITLE: Title to the Property will be delivered to Buyer at closing by a General Warranty Deed from Seller, made to Orange County, North Carolina, which shall be fee simple marketable title, free of liens, encumbrances, easements, restrictions, rights and conditions, including, but not limited to, any promissory note, mortgage, deed of trust, real estate contract, right of first refusal, or option to buy, other than current property taxes and rights, reservations, covenants, easements, conditions, and restrictions of record as of the effective date of this Agreement that do not materially affect the value of the Property or unduly interfere with Buyer's intended use of the Property, which exceptions must be approved in writing by Buyer ("Permitted Exceptions"). The deed conveying the Property shall be on a North Carolina Bar form General Warranty Deed or such other deed form a~ is approved by Buyer. The Property description in the deed shall conform to the survey of the Property to be prepared as prescribed in paragraph 4(a) of this Agreement. 3. EVIDENCE OF TITLE: Buyer will have title to the Property examined, and if applicable, obtain a preliminary title insurance commitment on the Property. The title examination and/or commitment must evidence Seller's ability to deliver title at Closing as set 2 forth above. All costs necessary to procure the title examination and, if applicable, the title commitment and final title insurance policy to be issued at Closing, shall be the responsibility of Buyer. 4. TITLE DEFECTS: If for any reason Seller cannot deliver title at Closing as required by Paragraph 2 of this Agreement, Buyer may elect to a) accept the Property with title as is; b) refuse to accept the Property; or c) allow Seller additional time to pursue reasonable efforts to correct the problem, including bringing any necessary quiet title actions or other lawsuits. 5. EASEMENT AND AGREEMENT FOR PRIVATE DRIVE MAINTENANCE AND LIGHTING STANDARDS: Private road construction within the Easement, maintenance of the private road and outdoor lighting are specifically provided for in the agreement (Exhibit B hereto) between Buyer and Seller, which agreement is incorporated herein by reference. It and each of its terms and obligations survive the closing and remain binding upon and for the benefit of Buyer and Seller, their heirs, personal representatives, successors or assigns as provided in Exhibit B. 6. REPRESENTATIONS. WARRANTIES AND COVENANTS OF SELLER: Seller makes the following representations and warranties to Buyer as of the effective date of this Agreement and again as of the Closing Date: (a) Title. At the Closing Date, Seller shall have good, marketable, and indefeasible fee simple title to the Property subject only to the Permitted Exceptions, and Seller is aware of no other matters that adversely affect title to the Property. 3 (b) Leases. There are no leases, licenses, or other agreements granting any person or persons the right to use or occupy the Property or any portion thereof except as described in paragraph 3(d) of this Agreement. (c) Options. Seller has not granted any options nor is Seller committed nor obligated in any manner whatsoever to sell the Property or any portion thereof to any party other than Buyer. (d) Construction Liens. To the extent any improvements have been made or will be made to the Property prior to the Closing Date that might form the basis of mechanics' or materialmen's liens, Seller agrees to keep the Property free from such liens that might result and to indemnify, defend, and hold Buyer harmless from any and all such liens and all attorneys' fees and other costs incurred by reason thereof. (e) Reports. All Reports, certificates, and other documents containing factual information delivered by Seller, or by Seller's agents in connection with this Agreement, are and shall be, to the best of Seller's knowledge, true and complete and shall not contain any untrue statement of material fact or omit to state any material fact, the disclosure of which is necessary to make the statements contained therein and in this Agreement, in light of the circumstances under which they are made, not misleading. (f) Environmental. (1) Seller has no knowledge of any underground storage tanks being located on the Property. Buyer agrees to perform a Phase I Environmental Assessment of the Property (hereafter "the Phase I"), at Buyer's expense. Should the Phase I disclose that one or more underground storage tanks are located on the property, a condition precedent to Buyer's obligation to close on the sale of the Property is that the following be done at Seller's 4 expense: (1) any underground storage tanks located on the Property be removed, (2) all discharged fuel oil or other contaminants be removed from the Property, (3) a copy of a certificate demonstrating removal and clean-up be provided to Orange County, c/o Pamela Jones, Director of Asset Management and Purchasing, 132 E. King Street, Hillsborough, North Carolina 27278, as soon as the certificate is available and (4) the original of the certificate be provided to Buyer at the closing. (2) Seller warrants and represents to Buyer as follows: (i) Seller has no knowledge of, and no reason to believe (A) that any industrial use has been made of the Property, (B) that, except for chemicals used in the farming of the Property, the Property has been used for the storage, treatment or disposal of chemicals or any wastes or materials that are classified by federal, State or local laws as hazardous or toxic substances, or (C) that any manufacturing, landfilling or chemical production has occurred. on the Property. (ii) To the best of Seller's knowledge, the Property is in compliance with all federal, State and local environmental laws and regulations, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Public Law No. 96-510, 94 Stat. 2767, 42 USC 9601 et seq., and the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law No. 99-499, 100 Stat. 1613. (iii) Seller has fully disclosed to Buyer that, except for chemicals used in the farming of the Property, Seller has no knowledge of the existence, extent and nature of any hazardous materials, substances, wastes or other environmentally regulated 5 substances (including without limitation, any materials containing asbestos), in or under the Property or use in connection therewith. (3) Seller shall indemnify and hold Buyer harmless from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities, costs (including clean-up costs), judgments and expenses (including attorneys', consultants' or experts' fees and expenses) of every kind and nature suffered by or asserted against Buyer as a direct or indirect result of any warranty or representation made by Seller in subsection (e) herein being false or untrue in any material respect, or (ii) any requirement under any law, regulation or ordinance, local, State or federal, which requires the elimination or removal of any hazardous materials, substances, wastes or other environmentally regulated substances existing or placed on the Property at any time up to and including the Closing Date. (4) Should the Phase I disclose the existence on the Property of any hazardous materials, substances, wastes or other environmentally regulated substances (including without limitation, any materials containing asbestos), a condition precedent to Buyer's obligation to close on the sale of the Property is that the following be done at Seller's expense: (1) any such material or substance located on the Property be removed, (2) other found contaminants be removed from the Property, (3) that a copy of a certificate demonstrating removal and clean-up be provided to Orange County, c/o Pamela Jones, Director of Asset Management and Purchasing, 132 E. King Street, Hillsborough, North Carolina 27278, as soon as the certificate is available and (4) that the original of the certificate be provided to Buyer at the closing. (5) Seller's obligations under this Section shall survive the closing and continue in full effect notwithstanding receipt of the purchase price. 6 (h) Representations/Warranties. All representations and warranties contained in this Agreement are true and correct as of the date of execution of this Agreement and will be true as of the Closing Date and shall survive closing and execution and delivery of the Deed and shall not be merged therein. 7. SETTLEMENT CHARGES: (a) Seller shall pay for the preparation of a deed, for the preparation and recording of all documents necessary to convey marketable fee simple title free of liens and encumbrances, and for the excise tax required by law. (b) Buyer shall pay for recording the deed. (c) Property owned by Buyer and Seller is exempt from ad valorem taxes. Should ad valorem taxes be owed on the Property for the calendar year in which the closing occurs they shall be paid by Seller. Seller shall pay any Orange County ad valorem taxes on personal property of Seller for the entire year of the closing. Seller shall pay all prior year's taxes, all deferred taxes and any tax penalties including late listing penalties, if any, which constitute a lien on the Property. (d) Buyer shall pay for a survey of the Property and all other closing costs other than those associated with environmental cleanup, if necessary, as provided for in paragraph 6 (fl• 8. CONDITIONS: (a) Seller agrees to allow Buyer access to the Property for the purpose of inspecting, surveying, testing and analyzing the Property at any time prior to the closing of the purchase of the Property. 7 (b) On request of Buyer, Seller agrees to exercise Seller's best efforts to deliver to Buyer, as soon as reasonably possible following the signing of this agreement, copies of any title information in possession of or available to Seller, including, but not limited to, title insurance policies, attorneys opinions on title, surveys, covenants, deeds, notes, and deeds of trust and easements relating to the Property. (c) Any and all deeds of trust, liens or other charges against the Property not assumed by Buyer must be paid and cancelled by Seller prior to or at closing. (d) A condition precedent to Buyer's obligation to close on the sale of the Property is that Buyer's Board of Commissioners formally approve the purchase of the Property by action in an open public meeting as provided by law. 9. MISCELLANEOUS PROVISIONS: (a) This Agreement embodies and constitutes the entire understanding between the parties with respect to the transaction contemplated herein and all prior agreements, understandings, representations and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provision hereof may be waived, modified., amended, discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment or discharge or termination is sought, and then only to the extent set forth in such instrument. (b) This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without, however, giving effect to any principle of conflicts of law. (c) The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof. (d) Any provision herein contained which by its nature and effect is required to be observed, kept or performed after the Closing Date, shall survive the closing and remain binding upon and for the benefit of the parties hereto, their heirs, personal representatives, successors or assigns, until fully observed, kept or performed. (e) This Agreement shall be binding and shall inure to the benefit of the parties hereto and .their respective beneficiaries, heirs, personal representatives, successors and permitted assigns. (f) As used in this Agreement, the masculine shall include the feminine and neuter, and vice versa; the singular shall include the plural and the plural shall include the singular, as the context may require. (g) Any provision contained in this agreement which by its nature and effect, if required to be observed, kept or performed after closing shall survive the closing and shall remain binding upon and for the benefit of the parties hereto until fully observed, kept or performed. 10. CLOSING: All parties agree to execute any and all documents and papers necessary in connection with the closing and transfer of title to the Property on or before December 31, 2009 in Hillsborough, North Carolina ("Closing Date"). 11. POSSESSION: Possession of the Property shall be delivered at closing. IN WITNESS WHEREOF, Seller has caused this instrument to be signed by its president and -attested by its secretary, the day and year written above, and Buyer has caused 9 this instrument to be signed by the chair of the Board of County Commissioners and attested by the Clerk to its Board of County Commissioners, the day and year written above. SELLER: EFFIE DRAPER-SAVAGE-NELLIE DRAPER DICK MEMORIAL FOUNDATION By: Cathleen Tur ,President Friends of Moorefields Trustee of the Effie Draper-Savage-Nellie Draper Dick Memorial Foundation ATTEST: Secretary, Frie s of Moorefields BUYER: ORANGE H ROLINA Y~ Va erie P. Foushe , hair Orange County Board of Commissioners ATTEST: Donna S. aker, Clerk to the Board of Commissioners 10 NORTH CAROLINA ~~~ COUNTY I, ~hy~ ~~ ~ r~ ,Notary Public for County, North Carolina, certify that '~Obl-n ~'RCDbrS personally came before a this day and acknowledged that he/she is Secretary of Friends of Moorefields, Trustee of the Effie Draper- Savage-Nellie Draper Dick Memorial Foundation, a North Carolina non-profit corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its President and attested by himself/herself as its Secretary. Witness my hand and official stamp or seal, this the ~ day of ~~'-'~° 2009. Q;• ~~ '' NOTARY •, ~. ~** ~O ~. PUBLIC ~ 2 ~~9 ~ ~~ ///~C~~ C~DUN' \~~~ My com issi n expires: fY r personally came before m~''this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal,,,t~iis the of ~ ~ day of / /~1~°/2Y~~' , 2009 ANl~lA MO~IAIr 14~MC d~t~oirwr ~~~ /-/.ao/3 My c ~ i si expires: -~~~j3 NORTH CAROLINA rttn ~ COUNTY cc i~ North Caroli certi that Donna S. Bake Notar Public Printed Name of Notary: I, ~GtY-1 ::FYI' ,Notary Public for ©-~a h~ ~` County, Notate Public Printed Name of Notary: ~ ~~ ~ 11 Exhibit A Q Moorefields Proposed acquisition ® 50' wide ingress, egress and regress easement - Streams 2003 orthophotos Moorefields Draper-Savage Memorial Foundation Proposed County acquisition (+/-13 acres) 0 700 200 400 Feal ~ ~ ~ Onnpe County ERCD M Jones 9M1/2008 Exhibit B Prepared by and return after recording to: NORTH CAROLINA ORANGE COUNTY EASEMENT AND AGREEMENT FOR PRIVATE DRIVE MAINTENANCE AND LIGHTING STANDARDS THIS AGREEMENT is made this day of 200_, by FRIENDS OF MOOREFIELDS, a North Carolina non-profit corporation, TRUSTEE of the EFFIE DRAPER- SAVAGE - NELLIE DRAPER DICK MEMORIAL FOUNDATION (hereinafter "Moorefields"), having a mailing address of 2201 Moorefields Road, Hillsborough, NC 27278 and ORANGE COUNTY, NORTH CAROLINA, having a mailing address of P.O. Box 8181, Hillsborough, NC 27278 (hereinafter "the County"). WITNESSETH: WHEREAS, the parties are the owners of the real property described in Article 1 below; and WHEREAS, upon recordation of this Agreement the County's property described in Article 1 will have access to MOOREFIELDS ROAD (SR 1135) via the fifty foot wide private driveway easement shown on the plat of survey prepared by , RLS, entitled ,recorded in Plat Book Page of the Orange County Registry, said private drive being known as the Moorefields driveway (hereinafter referred to as the private driveway); and WHEREAS, Moorefields and the County wish to bind themselves, their successors and assigns to provide perpetual ingress, egress and regress to Moorefields Road (SR 1135) for all of the property described in Article 1 below; and WHEREAS, the parties wish to bind themselves, their successors and assigns to provide for maintenance of said private driveway; NOW, THEREFORE, the parties agree for themselves and with any and all persons, firms or corporations hereafter acquiring any of the property described in Article 1 below, that the same shall be subject to the following restrictions, conditions, and covenants relating to the use and occupancy thereof, which restrictions, conditions, and covenants shall run with the said property described in Article 1, and insure to the benefit of and be binding upon the heirs, successors and assigns of the parties hereto and other acquiring parties and persons. Article 1. The real property which is, and shall be, held, transferred, sold and conveyed subject to the easements and protective and restrictive covenants set forth in the various Articles of this Agreement is ,located in Cheeks Township, Orange County, North Carolina, and is more particularly described as follows: Moorefields Property: Tract One: Consisting of approximately 54 acres, and being all of the real property described in that deed recorded in Book 131, Page 575, Orange County Registry, LESS AND EXCEPT approximately 58 acres conveyed to Orange County by deed recorded in Book 239, Page 1290, Orange County Registry, and approximately 13 acres conveyed to Orange County by deed recorded in Book ,Page , Orange County Registry. PIN # 9854-70-2643 and PIN # Tract Two: Consisting of approximately 14 acres, and being all of the real property described in that deed recorded in Book 132, Page 609, Orange County Registry. PIN # 9854-81-5060 Tract Three: Consisting of approximately 20 acres, and being all of the real property located on the north side of Moorefields Road described in that deed recorded in Book 132, Page 24, Orange County Registry. PIN # 9853-79-7619 Reference is also hereby made to those plats recorded in Plat Book 62, Page 99 and Plat Book 64, Page 158, Orange County Registry. County Property: Tract One: Consisting of approximately 13 acres, and being all of the real property described in that deed recorded in Book ,Page ,Orange County Registry, and being the same- real property shown as on the plat of survey recorded in Plat .Book ,Page ,Orange County Registry. PIN # Tract Two: Consisting of approximately 58 acres, and being all of the real property described in that deed recorded in Book 239, Page 1290, Orange County Registry. PIN # 9854-61-3017 Tract Three: Consisting of approximately 31 acres, and being all of the real property described in that deed recorded in Book 240, Page 464, Orange County Registry. PIN # 9854-40-7990 Tract Four: Consisting of approximately 109 acres, and being all of the real property described in that deed recorded in Book 2295, Page 361, and show on that plat recorded in Plat Book 88, Page 89, Orange County Registry. PIN # 9854-30-5558 Other: Any and all other parcels or tracts of land now owned by the County or hereafter acquired by the County from time to time which are contiguous to Tracts One, Two, Three or Four or which becomes contiguous to tracts which are contiguous to Tracts One, Two, Three or Four. 2 Article 2. Moorefields hereby grants to the County and reserves to itself anon-exclusive perpetual easement for ingress, egress and regress over, on and under the above described fifty foot private driveway shown on the plat of survey recorded in Plat Book ,Page of the Orange County Registry, including the use of the drive for the purposes of installation and maintenance of utilities; provided that it is expressly understood and agreed that this easement shall be subject to the following restrictions: 1. The rights and easements conveyed and reserved herein shall not include the right to park cars, trucks, trailers or vehicles of any kind along the private driveway within the easement. 2. Neither party shall remove, cut or destroy trees located within the fifty foot easement except as actually necessary to construct and maintain the private driveway to the standards described herein, to provide no more than two motor vehicle access ways into the County property described in Article 1 from the driveway, or to remove trees which are dead, diseased, or which pose a safety hazard. TO HAVE AND TO HOLD the above-described easement as an appurtenance to all of the property described in Article 1 above, which easement shall run with said lands forever. Article 3. -Until such time as the .County elects to open any part of its property described in Article 1 for use by the general public, the private driveway will be maintained by Moorefields in the same or better condition in which it exists at the time of the execution of this Agreement. Notwithstanding the foregoing, the County will be responsible for repair of the private driveway to such condition in the event of damage caused by heavy trucks or other similar equipment using the private driveway on the County's behalf. At such time as the County elects to open its Article 1 property for use by the general public it shall first construct a parking area on its property sufficient to accommodate such use, and shall improve the private driveway to Class B road standards as prescribed by Orange County now and as the same may be revised from time to time. Thereafter, the parties shall be jointly responsible for maintaining the private driveway in such improved condition, with Moorefields being responsible for forty percent (40%) of the cost thereof, and the County being responsible for sixty percent (60%) of the cost thereof. Notwithstanding the foregoing, the parties agree to assess their respective impacts on the condition of the private driveway every five years, or more often if circumstances dictate, and may hereafter agree in writing to adjust their respective maintenance responsibilities to reflect such use. The parties shall work together to determine what maintenance is necessary in order to maintain the private driveway, and will assess the condition of the private driveway at least annually; provided that neither party shall commence any such maintenance work without first notifying the other. Notwithstanding the foregoing, nothing in this Agreement shall be construed as denying the other party the right to see that the said road is maintained to Class B standards. Article 4. The private driveway located within said property may be dedicated to the public only upon the written Agreement of both parties or their successors in title. In that event the owners of the property will remain responsible for maintenance of the private driveway as prescribed in Article 3 or as otherwise agreed in the public dedication Agreement until such time as maintenance responsibilities are assumed by the North Carolina Department of Transportation or other governmental body. In the event the County or any other governmental body, as a condition to the approval of any further subdivision or development of the property described in Article 1, requires that the private driveway be upgraded above a Class B standard or be publicly dedicated and constructed to Department of Transportation standards, then in that event, the parties shall be responsible for maintenance and the costs of maintenance of the private driveway to the new standard, as reflects their new respective uses of the driveway, in such proportion as they agree. In the absence of an agreement, the owner of the property being subdivided or developed shall be responsible for maintenance and the costs of maintenance to the new standard. The initial cost of constructing the private driveway to a higher private road standard or to Department of Transportation standards shall be borne solely by the owner of the property being subdivided or developed. Article 5. This agreement is to govern the maintenance of the private driveway when subject to ordinary use. If either party to this Agreement shall cause any extraordinary wear and tear on the private driveway by building, well drilling, or other heavy use, said party shall be responsible to pay such extraordinary costs of maintenance caused by such use. Article 6. IN ADDITION TO THE FOREGOING EASEMENTS AND PROVISIONS FOR PRIVATE DRIVEWAY MAINTENANCE, the parties covenant and agree that the Outdoor Lighting Standards adopted by Orange County on June 26, 2003 shall apply as minimum lighting standards for the property described in Article 1 above, provided that: 1. None of the exemptions listed in Section 6.31.4 except 6.31.4 E and F shall be applied. With respect to Section 6.31.6 (A), the maximum light level shall be 0.5 foot-candle at any residential ornon-residential property line. With respect to Section 6.31.6 (C), any facilities requiring floodlighting may not arrange the light in such a way as to shine towards roadways, onto adjacent residential or non-residential property or into the night sky. 4. With respect to Section 6.31.6 (D), all flood lamps emitting 1,000 or more lumens shall be shielded such that the main beam from the light source is not visible from adjacent properties or any public street right-of--way. 5. With respect to Section 6.31.7 (A), all outdoor area and parking lot lighting fixtures shall be full cutoff fixtures. 6. With respect to Section 6.31.7 (C), any light fixture must be placed in such a manner that no lamp surface is visible from any residential or non-residential area or public/private roadway. The aforesaid Outdoor Lighting Standards are attached hereto and incorporated herein as Exhibit X to this Agreement. Article 7. This Agreement shall run with and be appurtenant to the land and shall be binding upon the heirs, successors, and assigns of each record owner of the aforesaid property. When used in this Agreement, the singular shall include the plural, the masculine shall include the feminine and the neuter, and vice versa, as the meaning may require. 4 IN WITNESS WHEREOF, the parties have caused this instrument to be signed and sealed on the day and year first written above. ATTEST: Secretary, Friends of Moorefields By: ATTEST: Donna S. Baker, Clerk to the Board of Commissioners EFFIE DRAPER-SAVAGE-NELLIE DRAPER DICK MEMORIAL FOUNDATION By: Cathleen Turner, President Friends of Moorefields, Trustee of the Effie Draper-Savage-Nellie Draper Dick Memorial Foundation ORANGE COUNTY, NORTH CAROLINA Valerie P. Foushee, Chair Orange County Board of Commissioners 5 NORTH CAROLINA COUNTY I, ,Notary Public for County, North Carolina, certify that personally came before me this day and acknowledged that he/she is Secretary of Friends of Moorefields, Trustee of the Effie Draper-Savage- Nellie Draper Dick Memorial Foundation, a North Carolina non-profit corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its President and attested by himself/herself as its Secretary. Witness my hand and notarial seal, this day of , 20 Notary Public My commission expires: NORTH CAROLINA COUNTY I, ,Notary Public for County, North Carolina, 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 Orange County, North Carolina the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal, this the day of , 2009 Notary Public Printed Name of Notary: My commission expires: 6 Exhibit X VARiATION$:FROIUt,FLI~XIBI.E DEVI=E:OPMENT PROVf8iON8 O~ SIECTION IV-B-94. ~ APPLfCAigLE tN STONEY CREEK'BASlN ~OVEftl.AY DfSs~TR1CT~ ''~° ~°' " Deveto merit Area ~ - ~~:>~U`"t::~~~:.:. . Lower. fntens[ ~ ty'' ~':~. Iriferttrediate ~ Hii~ her int®nsI 9 . tY - ,.,:, ;. . `Intl»si ,~~.. Calculation of Open Space Active recreation area 50'/° of active recreation area may be included may not be included in open space calculations, per Section iV-g-'i 0 in open space of the Subdivision Regulations calculations Number of 33.1 - 50.0% One additional dwelling unit per two acres of open space above 33% Bonus Units Open Space 50+% Open One additional dwelling unit per two acres of open space between 33% Space and 50%, plus one additional dwelling unit per acre of open space above 50% Location of Bonus Units Sonus units may not Bonus units may be t3onus units may only be located in the located in a flexible be located in a flexible Lower intensity development in the development in the Development Areas, Intermediate [ntenslty Higher (ntensity but may be located. in or Higher Intensity Devebpment Area. .a flexible Development Areas. development in the Intermediate intensity or Higher Intensity Deveto mentAreas. Vlltage Option Village option not VHlage option permitted, but VLflage Proper permitted. Limited to 50 acres. Amended 6/26/03 6.31 Outdoor Lighting Standards 6.31.1 Purpose and Intent a. Outdoor lighting is .provided for a variety of purposes to the benefit of modem society. For work .ar recreation, it enables people to see essential detail in order #hat they may undertake their .activities at night. It facilitates the safety or security of persons or property, for example through fighting on roads and pathways. It may be used to emphasise #eatures of architectural or historical significance, and to tight parks -and gardens. I# is used for advertising or display to . promote products or services, or to call attention to ,commercial premises by means of area lighting or signs. B, It is the intent of this ordinance to preserve, protect, and enhance the lawful nighttime use and enjoyment of any and alt property through the use of appropriate .lighting prac#ices and systems. Such individual fixtures and lighting systems are designed, constructed, and instaNed to maintain safety, security and productivity, reduce. glare, and curtail the degradation of the nighttime visual environment in addition to promoting conservation of enem}~ It is the intent of these reou~at~ons. that lighting unnecessary for safety or security be discouraged. 6-tt3 6.31.2 Definitions AASHTO: American Association of State Highway and Transportation Officials Cutoff Fixture: An outdoor lighting fixture shielded or constructed in such a manner that no more than two and one half {2 '/) percent of the total light emitted by the fixture is projected above the horizontal plane of the fixture. Direct Light: Light emitted directly from the tamp, off of the reflector diffuser, ar through the refractor ar diffuser lens, of a fuminaire. Fixture: The assembly that houses the lamp or lamps and can include alt or some of the following parts: a housing, a mounting bracket or pole socket, a lamp holder, a ballast, a reflector or mirror, and/or a refractor or lens. Flood Lamp: A form of {fighting designed to direct its output in a specific direction with a reflector formed from the glass envelope of the lamp itself. Such lamps are so designated by the manufacturers and are typically used in residential outdoor area fighting. Floodlight: A form of lighting designated to direct its outpu# in a diffuse, more or less specific direction, with reflecting or refracting elements located external to the {amp. Footcandle: (fc) The amount of light falling onto a surface. Full Cutoff Fixture: An outdoor lighting fixture shielded or constructed in such a manner that ifi emits no light above the horizontal plane of the fixture. Glare: Light emitting from a fuminaire with an intensity great enough to reduce a viewer's ability to see or to .cause annoyance, and, in extreme cases, causing momentary blindness. Holiday Decoration: holiday displays, decorations and greetings, which relate fio any federally designated holiday, legal holiday or religious holiday. Lamp• The source of electric light: the bulb. To be distinguished from fixture and fuminaire. Lumen: A unit of luminous flux. One foot-candle is one lumen per square foot. For the purposes of this ordinance, the lumen-output values shall be the INITIAL lumen output ratings of a lamp. Luminaires A complete lighting system that includes a lamp or lamps and a fixture. Serni-Cutoff Fixture: An outdoor fixture shielded or constructed in such. a manner fihat it emits no more Phan five (5) percent of its light above the horizontal plane of the fixture, and no more than twenty {20) percent of its light ten (10} degrees below the harizonta! plane of the fixture. Upward: Projection of tight above the horizontal plane. 6-84 6.31.3 Applicability A. .All outdoor lighting installed on public or private property shat! comply with the outdoor lighting standards as contained in Section 6.31. unless exempted in Section 6.31.4. B. In the event of a conflict between the outdoor lighting standards as contained in Section 6.31 and any other section of this ordinance, the more stringent requirement shall apply. 6.31.4 Exemptions The following. are exempt from the provisions of the outdoor lighting standards as contained in Section 6.31: A. Ali outdoor liahtino lawfully installed prior to the effective date of the outdoor lighting standards contained in Section 6.31, except the replacement of mercury vapor luminaires. Mercury vapor luminaires. except for single-family residences, must be replaced in conformity with the Gutdaor Lighting Standards upon the earlier occurrence of the replacement of the fixture or the lamp. B. Any outdoor lighting, including- mercury vapor, used for an individual single-family residence, where the residence is constructed as of the effective date of the outdoor lighting standards contained in Section 6.31. C. Bona fide agricultural uses. D. Traffic control signals and devices. E. Temporary emergency lighting (i.e. fire, police, repair workers, highway maintenance and construction, etc.). F. Moving vehicle lights. G. Navigation lights (i.e. airports, heliports, radio/television towers, communicat'son towers, etc.). H. Holiday decorations using typical unshielded low-wattage incandescent lights, which are in place no longer than 60 days. I. Security lights of any wattage that are controlled by amotion-sensor switch, which da not remain on longer than 12 minutes after activation, and do not exceed 150 watts'(2200 lumens). J. maintained rights-of-way~rovided that the standards of Sections 6.31.5.E and Section 6.31.6.1 are met. except for mercury vapor luminaires. Mercury vapor luminaires used for roadway lightingmust be replaced in conformity with the outdoor lighting standards contained 6-85 in Section 6 31 upon the earlier occurrence of the replacement of_the fixture or the tamp. 6.31.5 Submittal Requ%rements A lighting plan shall be submitted with site plan or preliminary plan approval documents. The plan shall con#ain the following information: A. Plans, drawn to scale, showing the location, type, and height of outdoor luminaires including bo#h building, pole and ground fixtures; B. A description of the luminaires, including lamps, poles or other supports and shielding devices, which may be provided as catalogue itlustrations and product specifications from the manufacturer; C. Photometric data, such as that furnished by the manufacturer, showing the angle of light emission and lumen output; and D. Additional information as may be required by the Planning Department in order to determine compliance with Section 6.31. E. Roadway lighting installed on state maintained roads must meet ASSHTO requirements for light levels and uniformity. Roadway lighting submittal requirements can be obtained in the NCDOT publication titled "Policies and Procedures for Accommodating Utilities on Highway Rights-of--Way". 6.31.6 General Standards For All Areas A. Unless otherwise specified, the maximum ligh# level shall be 0.5 foot- candle at any residential property line and 1.0 foot-candle at any non- residential property line. B. All floodlights shall be installed such that the fixture shall be aimed down at least forty-five (45) degrees from vertical, or the front of the fixture is shielded such that no portion of the light bulb extends below the bottom edge of an external shield. C. Any facilities that require floodlighting may not arrange the light in such away that it will shine towards roadways, onto adjacent residential property or into the night sky. ' D. All flood lamps emitting 1,000 or more lumens shall be aimed at least sixty (60) degrees down from the horizontal, or shielded such that the main beam from the light source is not visible from adjacent properties or the public street right-of-way. E. All wal! pack fixtures shall be fuN cutoff fixtures. ~ The NCDOT's standard 2'-6" curb and gutter, defined as a s" vertical face curb on page 47.2 of the "Policies and Procedures for Accommodating Utilities on Highway Rights of Way" does not act as a barrier curb at speeds greater than 25 mph. It is considered a mountable curb as defined in ,AASHTO "A Policy on Geometric Design on Highways and Streets, 2001". Therefore, the mountable curb and gutter secdon of the "Policies and Procedures for Accommodating Utilities on Highway Rights of Way" shall apply. s-ss F. All -lights shall be shielded in such a way as to direct light towards the Earth's surface and away from reflective surfaces, except as expressly exempted from the provisions of these regulations. G. Any temporary outdoor lighting that conforms to the requirements of this Section shall be allowed. Nonconforming temporary outdoor lighting may be permitted by the Planning Director after considering: 1) the public and/or private benefits that will result from the temporary fighting, 2) any annoyance or safety problems tha# may result from the use of the temporary lighting, and 3) the duration of the temporary nonconforming fighting. H. if any subdivision proposes to have installed street or other common or public area outdoor lighting, the final plat shall contain a statement certifying #hat the applicable provisions of the ou#door .lighting standards as contained in Section 6.31 will be adhered fo. The required Lighting Plan and associated documents shall be submitted and approved by the Planning Department prior to installation of any regulated lighting. If any street will be taken over by NCDOT for maintenance, roadway lighting must meet AASHTO requirements, and must be installed and maintained according to the NCDOT publication titled "Policies and Procedures for Accommodating Utilities on Highway Rights-of-way". 2 J. Upward flagpole lighting is permitted .for national and state flags provided that the maximum lumen output is 13Q4 lumens per flagpole. K. Any interior-lighted signs may not be lit at night when the face of the sign is removed or damaged in such a way that the light may distract drivers or adjacent property owners. 6.31.7 Lighting in Parking Lots and Outdoor Areas A. Other than floodlights and flood lamps, afl outdoor area and parking lot lighting fixtures shall be fiull cutoff fixtures. B. The mounting height of all outdoor fighting, except outdoor sports field lighting and outdoor performance area lighting, shalt not exceed thirty- six (36) feet above finished grade. C. Any light fixture must be placed in such a manner that no lamp surface is visible from any residential area or public/private roadway. Z The (VCDOT's standard 2'-6" curb and gutter, defined as a 6" vertical face curb on page 4T.2 of the "Policies and Procedures for Accommodating Utilities an Highway Rights of Way" does not act as a barrier curb at speeds greater than 25 mph. It is considered a mountable curb as defined in AASHTO "A Policy on Geometric Design on Highways and Streets, 2001". Therefore, the mountable curb and gutter section of the "Policies and Procedures for Accommodating Utilities on Highway Rights of Way" shall apply. 6-87 6.31.8 Lighting for Vehicular Canopies Areas under a vehicular canopy shall have a maximum point of horizontal illuminance of twenty-four (24) maintained foot-candles (fc}. Areas outside the vehicular canopy shall be regulated by Section 6.31.6. Acceptable methods include one or mare of the following: A. Recessed fixture incorporating a lens cover that is either recessed or flush with the bottom surface {ceifing) of the vehicular canopy. B. Light fixture incorporating shields, ar shielded by the edge of the vehicular canopy itse{f so that light is restrained to five degrees or more below the horizontal plane. C. Surface mounted fixture incorporating a flat glass that provides a semi-cutoff fixture or shielded light distribution. D. Indirect lighting where light is beamed upward and then reflected down from the underside of the vehicular canopy. Such fixtures shall be - shielded such that direct illumination is focused exclusively on the underside of the vehicular canopy. 6.31.9 Outdoor Sports Field! Outdoor Performance Area A. All outdoor sports field and outdoor performance area lighting fixtures shat! be equipped with a glare con#rol package (louvers, shields, or similar devices). The fixtures must be aimed so that their beams are directed and faN within the primary playing ar pertormance area. B. The hours of operation far the lighting system for any game or event shall be no later than 11:00 p.m., except to conclude a scheduled event .that was in progress before 11:00 p.m. and circumstances prevented concluding before 11:00 p.m. 6,31.10 Lighting of Outdoor Display Areas A. Top mounted fixtures are required for legally existing lighted signs. Lighting fixtures used to externally illuminate an outdoor advertising sign shall be moon#ed on the top of the sign structure. All such fixtures shall comply with the shielding requirements of this Section. Battoni mounted outdoor advertising shall not be used. Notwithstanding this provision, the lighting or re-lighting. of a nonconforming advertising sign will not be permitted if the light results in the expansion. of the nonconforming use, pursuant to Article 11. B. Outdoor advertising signs of the type constructed of translucent materials and wholly illuminated from within do not require shielding. Dark backgrounds with light lettering or symbols are preferred, to minimize detrimental effects. Unless conforming to the above dark background preference, total lamp wattage per sign shall not exceed 41 watts. 6.88