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HomeMy WebLinkAboutAgenda - 12-02-1996 - 14b 1 1 ORANGECOUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 2, 1996 Action Agenda Item SUBJECT: University Manor Phase I -Approval of Conservation Easement DEPARTMENT: PLANNING PUBLIC HEARING Yes_x_No BUDGET AMENDMENT Yes x No ATTACHMENT(S): INFORMATION CONTACT: Resolution of Approval Mary Willis Correspondence from Applicant Extension 2583 Correspondence from Triangle Land Conservancy Draft Conservation Easement TELEPHONE NUMBERS: Hillsborough-732-8181 Durham -688-7331 Mebane -227-2031 Chapel Hill -967-9251 PURPOSE: To consider acceptance of a conservation easement for the floodplain and wetland area in Phase I of University Manor. BACKGROUND: The approved Concept Plan for University Manor includes a total of 281 residential lots, a 30-acre park site to be dedicated to Orange County, and 167 acres to be preserved through conservation easements. The total area encompassed by the Concept Plan is 595 acres. The overall density of development is one dwelling unit per 2.12 acres. Phase I (99 acres,47 lots)received Preliminary Plan approval on December 19, 1995. Phase I is generally bounded by NC 10, New Hope Church Road and Stoney Creek. Of the 23.3 acres of open space included in Phases I, 8.3 acres are in a conservation area consisting of wetlands located in the floodplain of Stoney Creek. The remaining open space area contains two community wells, as well as area within the Duke Power transmission line easement. f l 2 The Resolution of Approval for Phase I includes the following condition: E. Parkland/Open Space 2. The entirety of the open space to be shown on the Final Plat(s) shall be owned by the homeowner's association for recreation/open space use by the residents of the subdivision. The deed shall be submitted to and approved by the County Attorney. 4. Final documents granting a conservation easement to Orange County or the Triangle Land Conservancy for the permanent protection of the floodplain on the west side of Stoney Creek shall be submitted to and approved by the County Attorney. This requirement is not agreement on the part of Orange County to accept a conservation easement grant to it. The form and substance of any conservation easement grant to Orange County must be approved by the Board of Commissioners. If approved,the Resolution of Approval for Phases III and IV should include comparable provisions related to ownership and control of the conservation area. Upon completion of the development, all of the conservation area should be under the same ownership and subject to the same restrictions. Thus the manner in which the conservation area is addressed in Phase I will be a model for Phases III and IV. (Phase II,recently approved, included dedication of a portion of a park site,but does not include any of the conservation area.) The Triangle Land Conservancy(TLC)declined an offer to acquire the floodplain because its primary interest in the area was to create a public trail connector between New Hope Creek and the Eno River,and construction of such a trail would be prohibitively expensive (letter attached). In order to comply with items E2 and E4 above, the offer to dedicate a conservation easement to Orange County must be made, and the Board of Commissioner must accept or refuse the offer. The Board of Commissioners must also approve the form and content of the easement documents. Compliance with items E2 and E4 above can be accomplished in one of the following ways: Option 1: Ownership of all of the open space by the homeowners association, with a conservation easement granted to Orange County for the conservation area. The conservation easement agreement would address issues such as use restrictions, access, monitoring,maintenance and enforcement. 3 Option 2: Ownership of the portion of the open space in the conservation area by Orange County, and ownership of the remainder of the open space by the homeowners association. This option arises as result of an offer by the applicant to convey ownership of the conservation area to Orange County. (See attached letter from David Rooks dated October 26, 1996.) In order to implement this option, item E2 of the Resolution of Approval would need to be revised to state that a portion of the open space could be owned by Orange County. Option 3: Ownership of all of the open space by the homeowners association, with a conservation easement granted to Orange County for the conservation area. In addition to addressing issues such as use restrictions, access, monitoring,maintenance and enforcement, the easement could allow for the County to obtain title to the conservation area at a later date,upon demand, and could provide for assignment by the County to a qualified owner. This option combines Options 1 and 2,beginning as Option 1, with the ability to convert to Option 2. Option 4: Ownership of all of the open space by the homeowners association,with restrictive covenants specifying that no development or disturbance could occur within the conservation area. This option would result by default if the County chose not to accept a conservation easement. Ownership of the conservation area provides greater County control, including the possibility of using the area in connection with the adjoining community park site, or developing a continuous connection between the Eno River State Park and Duke Forest in the future. Ownership also raises additional issues such as maintenance responsibility and liability. A connecting trail between Duke Forest and Eno River State Park will be a significant capital expense These issues should be carefully evaluated and balanced before a decision to accept ownership is made. Planning Staff, the Recreation and Parks Director, a member of the Recreation and Parks Advisory Council, and the applicants engineer recently walked the length of the conservation area, and a report containing findings and recommendations will be prepared, and will be presented to the Board of Commissioners in conjunction with the Preliminary Plan for Phase III. Orange County's interest in the conservation area, whether it be in the form of ownership or easement, should be assignable to an appropriate land conservation entity. This would allow for the easement or ownership interest to be conveyed in the future to a land trust. The County is currently exploring possibilities for creating a land trust which could accept conservation easements associated with Flexible Developments, farmland preservation, and other County conservation efforts. RECOMMENDATION: The Administration recommends approval of a conservation easement substantially in the form of the easement presented with this abstract,thereby addressing items E2 and E4 of the Resolution of Approval for Phase I of 4 University Manor while maintaining the option of County ownership of the conservation areas for Phase I as well as future phases. The Administration further recommends that the Planning Staff report its findings and recommendations concerning ownership of the conservation area upon consideration of the Preliminary Plan for Phase III of University Manor. n. s•� O .p «3 a :o qj '��+ h tr .•� a y ..r ...� V cu ly Ai r r N • M O Noels •�,N� r i M I� V A• V N N w 0• h .M tr N w 6 F 0 � .�:. 5F11iT BY: 11-2U-96 14:38 Northen Blue 91964430024 2/15 1 4 NORTHEN, DI.UE, ROOKS. TninAUT,ANDERSON & WOODS, L.L.P 6 A Lim%TS.I7 L7AMILITY RkftTXZ1WSHI2' ATTORNEYS. AT "W 100 EUROPA DRIVE SUITE SSO JOHN A.NORYHEN CnABEI.IfII.I.,NoRTH Cmtouv^ a nm MAILING AAORESS: J.WILLIAM BLUE,JR. P O.max 2206 DAVID M.ROOKS,111 CHARLES M.TMIRAUT C"Ok"Cl MILL,NC $7516-LI:00 CHARLES T.L.ANDERSON JO ANN RAGAZZO WOODS CAROL J. HOLCOMO TELEPHONE(9191 gel-4441 JAMLS C.STANFORD November 20, 177[7 TE4EFAX(91710)pat-6603 CHERYL Y.CAPRON E-MAIL' nblOWenetpeth.net AALENC O.HANKS Mr. Geoffrey E. Gledhill Attorney at Law P.O. Drawer 1529 Hillsborough, NC 27278 Re: University Manor Subdivision, Phase 1 Dear Geoff:: Thank you for your guidance with respect to Phase D of University Manor. We are trying to put things together so we can have the final plat for Phase T ready for recording at the beginning of December_ One of the issues to be resolved is the conservation easene a. The land Conservancy, which we all assumed would take the easement, has declined to do so leaving the County as the only available grantee. Mary and T have discussed whether the eanveyenice should be an easement or a conveyance of the fee,and need your guidance as Mr. Bailey is willing to do whatever the County wants in this respect. Given the time pressure, Mary suggested that I draft the conveyance as an easement with an option in the County to obtain the fee by deed of gift in the future to give you time to consider which form you want the grant to take. My revised draft is enclosed for your review. Sincerely, NORTHEN,BLUE, ROOKS,THMAUT, ANDERSON &WOODS, LLP , IU DMR/tpj enclosures cc: Ms. Mary Willis Mr. Sanford Bailey SENT BY: 11-25-96 9:53 Northen Blue 91964430024 2/14 7 Prepared by and return to: David M. Rooks, M, Northen Blue Law Firm, P. O. Box 2208, Chapel Hill, N. C. 27515 CONSERVATION EASEMENT This CONSERVATION BASEMENT made this_. _day of ._. 1996 by and between Key West EnterprLses, inc-("Grantor")and Orange County ("Grantee'). Witnesseth: WHEREAS, Grantor is the owner in fee simple of certain real property more particularly described in Exhibit A attached, (the 'PfoftW Property") that has ecological, scientific, educational and aesthetic value in its present state as a natural area; and, WHEREAS, Grantee is a body politic existing under Chapter 153A of the North Carolina General Statutes; and WHEREAS, the Protected Property is a significant natural area that qualifies as a relatively natural habitat of fish, wildlik, or plants, or similar ecosystem,"as that phrase is used in P.L. 96-541, 26 USC 170(h)(4)(A)(t),as amended, and in regulations promulgated thereunder; and, WHEREAS, the Grantor and Grantee have the common purpose of conserving the abovc- described conservation values of the Protected Pmperty in perpetuity, and the State of North Carolina has autltasrized the creation of Conservation Easements pursuant to N.C. Gen. Stat. 121-34 et seq, and Grantor and Grantee wish to avail themselves of the provisions of that law. NOW,THEREFORE, the Grantor, for and in consideration of the facts recited above and of the mutual coMowft, terms,conditions and restrictions contained herein and as an absolute and SENT BY: 11-25-36 3:54 ; Northen Blue 91964430024 3114 8 unconditional gift, hereby gives, grants, bargains, sells and conveys unto the Grantor a Conservation Easement in perpetuity over the Protected Property of the nature and character as follows: 1. Purpose. The purpose of this Conservation Easement is to ensure that the Protected Property will be retained forever predominantly in its natural state; to protect any regionally rare plants, animals or plant communities as well as state-or federal-monitored plants or animals on the Protected Property; to protect the water quality of Stoney Creels; and to prevent any use of the Protected Property that will significantly impair or interfere with the conservation values or interests of the Protected Property described above. The Grantor intends that this Conservation Easement will restrict the use of the Protected Property to only such activities as are consistent with the purpose of this Conservation Easement. 2. ProWded Uses, Any activity on or use of the Protected Property inconsistent with the purpose of this Conservation Easement is prohibited. without limiting the generality of the foregoing, the following activities' and uses are expressly prohibited except as provided in paragraph 3 below: 2.1 The legal or de facto subdivision of the Protected Property for any purpose; 2.2 Any eommesrcW or industrial use of or activity on the Protected Property; 2.3 The plaoemnent or construction of any buildings, structures, or otber improvements of any kind(including, without limitation, fences, roe&and parldnng lob); 2.4 Any alteration of the surface of the land, including, without limitation, the excavation or removal of soil, sand, gravel, rock, peat. or sod,except as required in the course of any activity permitted herein; 0 time J 2 SENT BY: 11-25-96 9:55 Northen Blue - 91964430024 4/14 9 2.5 Any use or activity that causes or is likely to cause significant soil degradation or erosion or significant pollution of any surface or subsurface waters. 2.5 The draining, filling, dredging, or diking of any wetland areas, including any enlargement thereof, or the cultivation or other disturbance of the soil. 2.7 The pollution, alteration, or manipulation of the water courses located on the Protected Property as shown in Exhibit B, or the creation of new water impounds of water, 2.8 The pruning, cutting down, or other destruction or removal of live trees, except as necessaty and with prior written approval of the Grantee pursuant to paragraph 4.5 below, in accmxW cx with generally aged forestry conservation practices, to control or prevent hazard, disease, or fire. Dead trees may be cut for firewood and to prevent hazard; 2.9 The planting of invasive plants(as recognized by the N.C. Natural Heritage Program of N.C. Botanical Garden)not native to the region anywhere on the Protected Property, grazing of domestic animals,or distur ram or change in the natusai habitat in any manner, 2.10 The dumping or other disposal of wastes, refuse, and debris on the Property; 2.11 The installation or extension of utilities; 2.12 Use of pesticides or biocides, including but not limited to insecticides, fungicides, rodeaticides, and herbicides, and use of devices common known as"bug-zappers", except with prior written approval of the Grantee pursuant to paragraph 4.5 below and in accordance with management practices of the Grantee; 2.13 Operation of snowmobiles, dune buggies, motorcycles,all-terrain or off-mad vehicles, or any other types of motorized vdicles; a.r 3 �[ vi Oi ll-L]-fib J-DO 'Nor tnea 15l ue didb44jUU2 S 51i4 i 10 3. Grantor's Reserved Rights. The Grantor hereby reserves the following rights: 3.1 ExistingrUmL To undertake or continue any activity or use of the Protected Property not prohibited by this Conservation Easement. Prior to making any change in use of the Protected Property, the Grantor shall notify the Granter in writing to allow the Grantee a reasonable opportunity to determine whether such change would violate the terms or purposes of this Conservation Easement. 3.2 Transfer. To sell, give, mortgage, lease or otherwise convey the Protected provided such conveyance is subject to the terms of this Conservation 3.3 niseased_Plants. To cut and remove diseased, hazardous, or invasive plants and to cut firebreaks, subject to the prior written approval of the Grantee pursuant to paragraph 4.5 below, except that such approval shall not be required in the case of emergency firebreaks. 3.4 Dead 7'* . To cut dead trees for firewood. 3.3 ramp Management I To eliminate exotics (starlings etc.) and reduce populations of native sprats that threaten the ecosystem under a prescribed plan approved by the N.C. Natural Heritage Program or the N.C. Division of wildlife Resources and with prior written approval of Grantee. 4. Grandee's Rights. To accomplish the purpose of this Conscrvation Easement, the following rights are conveyed to the Grantee by this Conservation Easement: 4.1 Big IaI5 oI=L To pm=rve and protect the conservation values of the Protected Property. 4.2 Right of Fat* To enter the Protected Property at all reasonable times and with 4 11 prior notice and, if necessary, across other lands retained by the Grantor, for the purposes of: (a) inspecting the Protected Property to determine if the Grantor is complying with the covenants and purposes of this Conservation Easement; (b)enforcing the terms of this Conservation Easement; (c) taking any and all actions with respect to the Protected Property as may be necessary or appropriate, with or without order of court, to remedy or abate violations hereof; (d) malting scientific and educational observations and studies and taking samples in such a manner as will not disturb the quiet enjoyment of the Protected Property by the Grantor; and(e) monitoring and management as described below. 4.3 MnniWdng..and Management. The right, but not the obligation, to monitor the condition of the plant and animal populations, plant communities, and natural habitats on the Protected Property, and to manage them, to the extent deemed appropriate by the Grantee, to ensure their continued presence and viability on the Protected Property. Such activities shall be in accordance with management practices of the Grantee. 4,4 Easement. To prevent arty activity on or use of the Protected Property that is Inconsistent with the purpose of this Conservation Easement and to require the restoration of such arras or features of the Protected Property that may be damaged by any inconsistent activity or use, pursuant to paragraph 9. 4.5 Discredoomy Canea The Grantee's eonsca for activities otherwise prohibited under paragraph 2 above,or for any activities requiring Grantee's consent under paragraph 2 or 3 above, may be given under the following conditions and circumstances. If, owing to unforeseen or changed circumstances, any of the activities listed in paragraph 2 are deemed desirable by both the Grantor and the Grantee, the Grantee may, in its We discretion, give permission for such "O — S xr► cst 11-«- J;5d Aortnen Biue 3196443002:# 7/14 12 activities, subject to the limitations herein. Such requests for permission, and permission for activities requiring the Grantee's consent under paragraph 2 or 3, shall be in writing and shall describe the proposed activity in sufficient detail to allow the Grantee to judge the consistency of the proposed activity with the purpose of this Conservation Easement. The Grantee may give its permission only if it determines, in its sole discretion, that such activities (1)do not violate the purpose of this Conservation Easement and (2)either enhance or do not impair any significant conservation interests associated with the Protected Property. Notwithstanding the foregoing, the Grantee and Grantor have no right or power to agree to any activities that would result in the termination of this Conservation Easement or to allow any residential, commercial or industrial structures or any commercial or industrial activities not provided for above. S. Cats and Liabilities. The Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of the Protected Property. The Grantee shall maintain general liability insurance covering the activities of its employers, members and volunteers on the Protected Property. The Grantor shall keep the Grantee's interest in the Protected Property free of any liens arising out of any work performed for, materials furnished to or obligations incurred by the Grantor. Each party Wm to release, hold harmless, defend and indemnify the other from any and all liabilities including.but not limited to,injury,lasses,damages,judgments, costs, expenses and fees that the k dernaifed party may suffer or incur as a result of or arising out of the activities of the other party on the Protected Property. 6. lhxes. The Grantor agrees to pay any real estate taxes or other assessments levied on the Protected Property.If the Grantor becomes delinquent in payment of taxes or assessments, so sr,.� a 6 .,, .l �t . •uJ u, ,,,ea U,ue J1JO44JUUL'M 6/14 13 that a lien is created against the Protected Property, the Grantee, at its option, shall, after written notice to the Grantor, have the fight to purchase and acquire the Grantor's interest in the Protected Property by paying funds to discharge the Lien or delinquent taxes or assessments, or to take such otter actions as may be necessary to protect the Grantee's interest in the Protected Property and to assure the continued enforceability of this Conservation Emment. 7. Title. The Grantor covenants and repr=nts that the Grantor is the sole owner and is seized of the Protected Property in fee simple and has good right to grant and convey this Conservation Fasermt; that the Protected Property is free and clear of any and all encumbrances, Wchnding but not limited to, any mortgages not subordinated to this Conservation easement, and that the Grantee shall have the use of and enjoy all of the benefits derived from and arising out of this Conservatim Easement. & Hazardous Waste. The Grantor covenants and warrants to the Grantee that he has no knowledge of the existence of hazardous substances or toxic waste on the Protected Property and that he has no knowledge that hazardous substances or toxic waste have been generated, treated, stored, used, disposed of, or deposited in or on the Protected Property, and that he has no knowledge of the existence of any underground storage tanks on the Protected Property. 9. Grame's Remedies. if the Grantee becomes aware of a violation of the terms of this Canmvation Easement, the Grantee shall give notice to the Grantor, at the Grantor's last known post office address, of such violation via certified mail, return receipt requested, and request eonwbve action sufficient to abate such violation and restore the Protected Property to its previous conchtion at the time of this grant. Failure by the Grantor to abate the violation and take an.e.%ftkY%—« 7 1.p..Rer rR»a 14 such other corrective action as may be requested by the Grantee within thirty (30) days after receipt of such notice shall entitle the Grantee to bring an action at law or equity in a court of competent jurisdiction to enforce the terms of this Conservation Easement; to require the restoration of the property to its previous condition; to sock to enjoin the noncompliance by ex pane temporary or permanent injunction in a court of competent jurisdiction; and/or to recover any damages arising from the noncompliance. Such damages, when recovered, may be applied by the Grantee, in its sole discretion, to corrective action on the Protected Property. The prevailing party in any litigation between the parties with respect to this easement shall be entitled to recover the costs of the litigation, including attorneys' fees, from the losing party. 9.1 EMIM=cy Enfn menr_ If the Grantee, in its sole discretion, determines that cireumsumm require immediate action to prevent or mitigate significant damage to the conservation values of the Property, the Grantee may pursue its remedies under this paragraph without prior notice to the Grantor or without waiting for the period for clue to expire. 9.2 FAhl*+P m Act ar Delay.The Grantee does not waive or forfeit the right to take action as may be necessary to inure compliance with this Consenratiun Easement by any prior failure to act and the Grantor hereby waives any defenses of waiver, estoppel or laches with respect to any failure to act or delay by the Grantcc, its successors or assigns, in acting to enforce any restriction or exercise any rights under this Conservation Easement. 9.3 Violations Due to Causes_Reyond .Grantor's. Control. . Nothing herein shall be construed to erttide the Grantee to institute any enforcement proceedings against the Grantor for any changes to the Protected Property due to causes beyond the Gnaw's control, such as changes caused by fire, flood, storm, earthquake or the unauthorized wrongful acts of third persons. In n 8 SWwba 11,1996 15 the event of violations of this Conservation Easement caused by the unauthorized wrongful acts of third persons, the Grantor agrees, upon request by the Grantee, to assign its fight of action to the Grantee, to join in any suit, or to appoint the Grantee its attorney-in-fact for the purposes of pursuing enforcement action, all at the election of the Grantee. 10. Patties Subject to Emeatent. The covenants agreed to and the terms, conditions, and restrictions imposed by this grant shall be binding upon the Grantor and his lessees, agents, personal rgxesentatives, successors and assigns, and all other ors in interest to Grantor and will continue as a servitude running in perpetuity with the Protected Property. 11.Subsequent lVansfers. The Grantor agrees that the terms, conditions, restrictions and purposes of this gram or refelance thereto will be inserted by the Grantor in any subsequent deed or other legal instrument by which the Grantor divests either the fee simple title or a possessory interest in the Protected Property; and the Grantor further agrees to notify the Grantee of any pending transfer at least thirty(30)days in advance. 12. MeM r. The Grantor and the Grantee agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Protected Property. 13. Asignment.7be parties hereto recognize and agree that the benefits of this easement are in gross and assignable, and the Grantee hereby covenants and agr+cca that if it transfers or assigns the easement it holds under this indenture, the organization receiving the inu=st will be a qualified organkation as that term is defined in Seeder 170(h)(3)of the Internal Revenue Code of 1986 (or any successor section) and the regulations promulgated thrercunder organized and operated primarily for one of the conservation purposes specified in Section 170(h)(4)(A) of the Internal Revenue Code, and the Grantee further covenants and agrees that the terms of the transfer R��. �cvi ur • ii-��-fib iu•u1 Nortnen dine 818b44302;#11/14 16 ' or assignment will be such that the transferee or assignee will be required to continue to carry out in perpetuity the conservation purposes that the contribution was originally intended to advance. 14. Fatinguishmeot. The Grantor hereby agrees that, at the time of the conveyance of this Conservation Easement to the Grantee, this Conservation Easement gives rise to a real property right, immediately vested in the Grantee, with a fair market value of the Conservation Easement as of the date of the conveyance that is at least equal to the proportionate value that this Conservation FAsernent at the time of the conveyance bears to the fair nwkct value of the property as a whole at that time. That proportionate value of the Grantee's property rights shall remain constant. When a change in conditions Wm place which makes impossible or impractical any continued protection of the Protected Property for conservation purposes, and the restriction contained herein are expnguished by judicial proceeding,the Grantee,upon a subsequent sale, exchange or involuntary conversion of the Protected Property, shall be entitled to a portion of the proceeds at least equal to that proportionate value of the Conservation Easement. The Grantee shall use its share of the proceeds in a manner consistent with the conservation purposes set forth herein or for the protection of a"relatively natural habitat of fish, wildlife, or plants or similar ecosystem," as that phrase is used in and defined under P.L. 96-541, 26 USC 170(h)(4XA)(ii), as amended and in regulations promulgated thereunder. 15. Embmt Doamin. Whenever all or part of the Protected Property is taken in exercise of eminent dornain by public, corporate, or other authority so as to abrogate the restrictions imposed by this Conservation Easement, the Grantor and the Grantee shall join in appropriate actions at the time of the taking to recover the full value of the taking and all incidental or direct 10 17 damages resulting from it,and the proceeds shall be divided in accordance with the proportionate value of the Grantee's and Grantor's interests, and Grantee's proceeds shall be used as specified above. All expenses incurred by the Grantor and the Grantee in such action shall be paid out of the recovered proceeds. 16. Option. Grantee shall have an option to obtain the entire protected props rty in fcc by deed of gift from Grantor within one year of the date of recording of the final plat for the final a phase of University Manor subdivision as the subdivision is described in the Concept Plan approved by the Orange County Planning Board on May 20, 1996 but in all events no later than December 1, 1998. Grantee may exercise this option upon written notice to Grantor 17. 1VIiscetlaaeflus Provisions. 17.1 Severability. If any provision of this Conservation Easement or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Conservation Easement and the application of such provisions to persons or circumstances other than those as to which it is found to be invalid shall not be affected thereby. 17.2 Su, , aM!► .The terra"Grantor" shall include the Grantor and the Grantor's heirs, executors, administrators, successors and assigns and shall also mean the masculine, feminine, corporate, singular or plural form of the word as needed in the context of its use. The term 'Grantee" shall include the Orange County, North Carolina and its successors and assigns. 17.3 Re-recording. The Grantee is authorized to record or file any notices or instruments appropriate to assure the perpetual enforceability of this Conservation Easement; for such purpose, the Grantor appoints the Grantee his attorney-in-fact to execute, actcnowledge and cov.ouw.rgm.w Zgftmb.It.19M I 1 18 deliver any necessary instrument on its behalf. Without limiting the foregoing, the Grantor agrees to execute any such instruments upon request. • 5 17.4 Captions. The captions herein have been inserted solely for convenience of reference and are not a part of this Conservation Easement and shall have no effect upon construction or interpretation. 17.5 Counterparts. The parties may execute this instrument in two or more counterparts, which zhall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. 17.6),latices. Any notices required in this Conservation Easement shall be sett by registered or certified mail to the following address or such address as may be hereafter Grantor: Key West Enteprises, Inc. P.O. Drawer 1859 Wake Forest, NC 27588-1859 Grantee: Orange County TO HAVE AND TO HOLD the said Conservation Easement unto the said Grantee forever. IN WITNESS WHEREOF, the Grantor has executed and sealed this document the day and year first above written. n.pt nA II.uA NORTHEN, BLUE, ROOKS, THIBAUT, ANDERSON & WOODS, L.L.P. 19 A LIMITED LIABILITY PARTNERSHIP ATTORNEYS AT LAW 100 EUROPA DRIVE - SUITE 550 JOHN A. NORTHEN CHAPEL HILL,NORTH CAROLINA 27514 MAILING ADDRESS: J. WILLIAM BLUE,JR. P.O. BOX 2208 DAVID M. ROOKS,111 CHAPEL MILL,NC 27515-2208 CHARLES H.THIBAUT CHARLES T.L.ANDERSON JO ANN RAGAZZO WOODS CAROL J. HOLCOMB October 25 1996 TELEPHONE(919) 968-4441 JAMES C. STANFORD f TELEFAX(919) 942-6603 CHERYL Y CAPRON E-MAIL: nblaw @n@tpeth.net .ARLENE D. HANKS Ms. Mary Willis Orange County Planning Department 306F Revere Road Hillsborough, NC 27278 Re: University Manor Phase I Dear Mary: As I believe we have discussed, the Triangle Land Conservancy declined Mr. Bailey's offer of a conversation easement along the Stoney Creek flood plain. As an alternative I would suggest the County consider taking either a conversation easement or outright ownership of the conservation area subject only to an easement in favor of the University Manor homeowners to use and enjoy the conservation area. Please let me know which of these options you might prefer. Sincerely, NORTHEN, BLUE, ROOKS, THIBAUT, ANDERSON & WOODS, LLP David M. Rooks, III DMR/tpj cc: Sanford Bailey TRIANGLE LAND CONSERVANCY 20 office 1100A Wake Forest Road Raleigh, NC 27604 mail PO Box 13031 August 20, 1996 Research Triangle Park, NC 27709-3031 tel 919.833.3662 fax 919.755.9356 David Rooks, III Northern, Blue, Rooks, Thibaut 100 Europa Drive, #550 Chapel Hill, NC 27514 Dear David: I am writing to let you know that the Triangle Land Conservancy has after careful consideration decided against acquiring the Stoney Creek floodplain in the University Manor subdivision. As I explained in my February letter, our primary interest in the land was as a public trail connector between New Hope Creek and the Eno River. After walling the land and discussing it at our most recent Land Committee meeting, we determined that establishing a trail in this area would be prohibitively expensive. As you probably know already, the floodplain in this area lives up to its name. The trail would have to be raised above ground almost the entire distance. We appreciate very much, however, Mr. Bailey's vOingness to work with us on this project. Please extend our than to him for considering the possibility of donating this land to TLC and for giving us the opportunity to walk the land and investigate the project more fully. We hope that he will consider involving us at the early stages of any new projects he undertakes. Thank you as well for your time and consideration on this project, and we hope to work with you on other projects in the future. Since ely, Kate Dixon Executive Director © ecvc:ea nape, j ` 21 RESOLUTION OF THE ORANGE COUNTY BOARD OF COUNTY COMUSSIONERS Date December 19, 1995 Name of Subdivision University Manor Phase I Owner/Applicant Sanford Bailey The Board of County Commissioners hereby approves the University Manor Subdivision Preliminary Plan, dated August 1995 and containing 47 residential lots, subject to the fulfillment of requirements specified herein. All roads shall be irrevocably dedicated to the general public and be constructed to standards of the North Carolina Department of Transportation. The approval of this resolution authorizes and directs the Orange County Manager to accept for Orange County and on behalf of the public generally, the offer of dedication of Westcott Court, Brampton Place, and Chilmark Circle as shown on the Preliminary Plan. This acceptance by Orange County of the dedication to the general public of Westcott Court, Brampton Place, and Chilmark Circle shall be without maintenance responsibility. These roads shall be maintained by the owner/applicant until such time as they are accepted for maintenance by the North Carolina Department of Transportation or some other governmental body. Before the Final Plat of any phase of University Manor can be recorded: A. Sewage Disposal and Water Supply 1. Each residential lot shall contain an adequate area for septic disposal, and repair area, approved by the Orange County Division of Environmental Health. 2. Disclosure that the septic system location may restrict the size and location of improvements shall be included in a document describi4g de_v_elopment restrictions to be recorded concurrently with the Final Plat. The document shall also disclose that information regarding the tentative location of septic systems is available from the Orange County Health Department, Division of Environmental Health. 3. Final documents granting easement rights for the operation and maintenance of the community water system by a private utility company shall be submitted to and approved by the County Attorney. 4. Construction plans for the community water system shall be approved by the NC Division of Environmental Health and the 22 Public Water and Sewer Branch of the NC Division of Environmental Health. 5. The community water system shall be constructed and the final construction approved by the North Carolina Division of Environmental Health. B. Roads and Access 1. Westcott Court, Brampton Place, and Chilmark Circle shall be constructed to standards of the North Carolina Department of Transportation, within a 50-foot right-of-way, and the construction shall be inspected and approved by NCDOT. OR A letter of credit, escrow agreement, or bond shall be submitted to secure construction of Westcott Court, Brampton Place, and Chilmark Circle to the standards of the North Carolina Department of Transportation. An estimate of the construction cost must be prepared by a certified/licensed engineer or grading contractor and submitted to the Planning and Inspections Department. The financial guarantee must reflect 110% of that estimate and be issued by an accredited financial institution licensed to do business in North Carolina. The document describing development restrictions to be recorded with the Final Plat shall state that the financial guarantee will not be released until the road construction has been inspected and approved by NCDOT. 2. An erosion control plan for construction of the roads shall be submitted by the applicant for review and approval by the Orange County Erosion Control Division. 3. 10' by 70' sight triangles shall be shown at all intersections. 4. If a divided entrance is included in the final design, detail drawings shall be submitted to and approved by the North Carolina Department of Transportation. 5. All lots shall access onto the new subdivision roads. This restriction shall be stated in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. 6. Approved street name signs shall be erected at the intersection of streets as required in Section IV-B-3-c-12 of the Orange County Subdivision Regulations. Evidence shall be submitted by the applicant that the sign is in place or a copy of the receipt for purchase of the sign shall be submitted to the Planning Department. �Y J ` 23 C. Land Use Buffers and Landscaping 1. Landscaping shall be installed or preserved as indicated on the approved landscape plan, and must be inspected and approved by the Planning and Inspections Department. OR The applicant shall secure landscape requirement installation and preservation through a letter of credit, escrow agreement, or bond. An estimate of the cost for required preservation, plantings and their installation must be provided. The financial guarantee shall reflect 110% of the estimate and be issued by an accredited financial institution licensed to do business in North Carolina. 2. Provisions for protection of existing trees as shown on the approved landscape plan shall be included in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. 3. A Type A Land Use Buffer shall be provided along New Hope Church Road and NC 10. The buffer shall be 30 feet in width and provide sufficient vegetation to meet the standards of Section IV-B-8-e of the Subdivision Regulations. Said buffer shall be so noted on the plat, and described in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. D. Drainage 1. The floodway and floodway fringe of Stoney Creek shall be noted on the face of the Final Plat. Development restrictions within the floodplain shall be specified in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. 2. A 60-foot stream buffer shall be provided adjacent to the floodplain at the northeast corner of lot 7 and southeast corner of lot 6, as shown on the Preliminary Plan. Development restrictions within the buffer shall be specified in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. 3. The Final Plat shall show the boundary of the Lower Eno Protected Watershed on lots 3, 4, 5, 6 and 7, as indicated on the Preliminary Plan. Impervious surface may not exceed 36% of the area within the watershed. These provisions shall be specified in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. L. 24 4. Stormwater detention/retention sites/undisturbed areas for infiltration shown on the approved Stormwater Management Plan shall be labeled on the Final Plat. Use restrictions or other conditions shall be specified in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. 5. Provide 30-foot drainage easements on lot 16, and along the boundaries of lots 9 and 10 and lots 26 and 27, in the locations indicated on the Preliminary Plan. Additional drainage easements may be required following review and approval of the Erosion Control Plan. E. Parkland/Open Space 1. Cash in the amount of $4, 136 shall be paid to Orange County as payment in lieu of parkland dedication. 2. The entirety of the open space to be shown on the Final Plat(s) shall be owned by the homeowners association for recreation/open space use by residents of the subdivision. The deed shall be submitted to and approved by the County Attorney. 3. The right to drill replacement wells and construct water lines within the common open space shall be granted to the utility company, in the event of failure of the initial well system. 4. Final documents granting a conservation easement to Orange County or the Triangle Land Conservancy for the permanent protection of the floodplain on the west side of Stoney Creek shall be submitted to and approved by the County Attorney. This requirement is not agreeent on the part of Orange County to accept a conservation easement grant to it. The form and substance of, any conservation easement grant to Orange County must be approved by the Board of County Commissioners. F. Miscellaneous 1. The Final Plat shall contain a title block and vicinity map in accordance with Section V-D-2 and V-D-3 of the Orange County Subdivision Regulations. 2. The following natural and man-made site features shall:- be shown on the plat: a. Stoney Creek floodplain and wetlands b. Duke Power transmission line 3. The following easements shall be shown on the plat: a. Conservation Easement dedicated to Orange County or Triangle Land Conservancy b. Well and waterline easements dedicated to private utility { 25 company C. Drainage easements on lots 16, 26/27, and 9/10, as well as other location which may be required following review and approval of the erosion Control Plan. d. Duke Power easement 4 . A setback of 40 feet shall be maintained as measured from the edge of right-of-way of Westcott Court, Brampton Place and Chilmark Circle. Side yards shall be a minimum of 20 feet, and rear yards a minimum of 20 feet. These setback requirements shall be stated on the plat, and in a document describing development restrictions and requirements to be prepared by Planning Staff and recorded concurrently with the Final Plat. S. Provide documentation that the notable interior woodwork of the Boyd House, such as the hand-carved mantels, vertical beaded board wainscoting, heartpine flooring, and the Chinese Chippendale staircase and balustrade, has been salvaged or advertised for salvage. G. Certifications 1. A Certificate of Survey and Accuracy signed by a registered Land Surveyor shall be notarized on the face of the Final Plat. 2. A Certificate of Declaration and Maintenance in the form provided in Section V-D-6-b of the Orange County Subdivision Regulations signed by the landowner and developer shall be on the face of the plat and included in a document describing development restrictions to be recorded concurrently with the Final Plat. 3. The Department of Environmental Health shall certify that each lot contains a suitable area for septic disposal. 4. The North Carolina Department of Transportation shall certify that Westcott Court, Brampton Place and Chilmark Circle have been constructed to State standards or that construction plans have been approved. 5, A Certificate of Approval-signed-by-the--Orange County Planning and Inspections Department. S ' nature of Appl nt Cler to a oard accept the above listed conditions of subdivision approval, and acknowledge that each must be met prior to recordation ol the final plat.