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Home My WebLink AboutAgenda - 12-17-1996 - 9c � 1 ORANGECOUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 17. 1996 Action Agenda Item #_9—G 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: Draft Conservation Easement Mary Willis Draft 12/2/96 Commissioners Minutes Extension 2583 (See also 12/2/96 Commissioner's Agenda) TELEPHONE NUMBERS: Hillsborough-732-8181 Durham -688-7331 Mebane -227-2031 Chapel Hill -967-9251 PURPOSE: To consider approval of a conservation easement for the conservation area of University Manor Phase I. BACKGROUND: On December 2, 1996,the Board of Commissioners considered acceptance of a conservation easement for area containing wetlands and floodplain on the west side of Stoney Creek in Phase I of University Manor. The Resolution of Approval for the subdivision included a requirement that the conservation area be owned by the Homeowners Association, with a conservation easement granted to the Triangle Land Conservancy or Orange County. Triangle Land Conservancy declined the offer to accept an easement. A draft conservation easement to Orange County was presented to the Board of Commissioners on December 2, 1996 for approval of the form and content as required by the Resolution of Approval. There was considerable discussion concerning responsibilities and liabilities associated with the easement. The easement was approved in concept, but was to be returned to the Board of Commissioners in final form, after revisions were made in response to Board comments made at its December 2 meeting. i 2 The easement document has been revised to include the following: 1. Extension of the deadline for the County to make a final decision regarding ownership of the conservation area; 2. Additional "hold harmless" language to require that the homeowners association maintain liability insurance and that Orange County be included as an additional insured party; 3. Addition of language to require that storm debris from Hurricane Fran be removed from the open space area prior to conveyance of the conservation easement to the homeowners association; 4 Other changes, as recommended by the County Attorney. The changes are highlighted and crossed-out on the document attached. Purpose of the Easement The easement is in the nature of a negative servitude, in that it restricts the use of the property. It also conveys to the County (and any assignee of the County)the right to monitor the activities within the conservation area and to enforce the protection of the conservation area. For example,the easement does not grant rights for the grantee to construct trails or overlooks. Easement provisions giving the grantee rights to construct trail or interpretive facilities could be included in the easement for Phases III and IV. Interpretive facilities in conjunction with the park site would likely be adjacent to the park site, in Phase IV. If a trail is established on the south side of NC 10 in the future it should be located in Phase III, on the eastern side of the conservation area in closer proximity to the main channel of Stoney Creek. Location of trails on the east side of the creek would also provide trail access to a larger number of lots within University Manor. The 8.3 acres in the conservation area for Phase I is a relatively small and narrow portion of the total conservation area of 167 acres. Restriction against trail access in the Phase I portion will not affect the ability to provide for trails through the conservation area as a whole. Liability The easement as recommended specifies that: • the Grantor(which will be the homeowners association)will "bear all costs and liabilities of any kind related to the ownership, operation , upkeep and maintenance of the Protected Property" ; and 3 • the Grantee (which will be Orange County until the easement is assigned to another qualified entity)may maintain"general liability insurance covering the activities of its employees, members and volunteers on the Protected Property". Thus,the homeowners association would be liable for injuries, damages, etc., incurred by the residents of the subdivision and the public in general, as well as injuries, damages etc. incurred in the course of maintenance. The County would be liable only for injuries, damages, etc. resulting solely from activity of its employees, or volunteers or experts which it may invite onto the property. County employee contact with the property would be limited to occasional (perhaps annual) inspections for monitoring purposes. General liability insurance carried by the County protects the County in the event of injury to the general public incurred on County property, or in connection with a County-related function in which the public is "invited" onto property which is under different ownership. Worker's Compensation protects the County in the event of injury to its employees in performing work-related activities, both on and off County property. Discussion with the County's insurance provider indicated that there is no insurable interest with regard to general liability posed by the acceptance of the easement, and no additional insurance coverage would be needed. It is recommended that the easement require that the Homeowners Association maintain liability insurance, and that the County be named as an additional insured. The naming of Orange County a an additional insured would provide coverage for Orange County as well as the homeowners association in the event that Orange County was named in a personal injury or property damage suit involving the conservation area. It is expected that issues relating to creation of the land trust will be resolved by the time the easements for Phases III and IV would be considered, and that additional liability issues that may arise from expanded grantee rights would be addressed through the land trust. Removal of Hurricane Debris The portion of the conservation area in Phase I has been subject to beaver activity, both current and past. Beaver impacts are particularly extensive in the area just downstream from New Hope Church Road,where there are numerous trunks of dead trees standing within a broad area of wetlands. This portion of the conservation area was also heavily damaged by Hurricane Fran. Approximately 10-15 large trees, located mostly on the slopes just outside of the conservation area, were uprooted and fell into the conservation area. It is recommended that storm debris within this heavily-damaged portion of the easement be removed by the developer prior to conveyance of the property to the homeowners association. Storm damage on individual lots will be cleared as lots are developed. 4 Tax Deduction The Board discussed having the option of abandoning the easement or having it revert to the Homeowners Association if so desired in the future.. The applicant's attorney indicates in the attached letter that the holder of the easement must be an organization qualified in accordance with the Internal Revenue Code in order for the gift of easement to qualify for a one-time tax deduction. If the easement contains a provision that the easement can revert to or be assigned to a non-qualifying entity such as a homeowners association, or if the easement could be abandoned altogether, then it will not qualify for the deduction. The easement does, however, provide for its transfer or assignment a qualified organization, as defined by the Internal Revenue Code. Existing entities to which the easement could be assignee include the Triangle Land Conservancy and the Conservation Trust for North Carolina. In addition, Orange County is considering options for establishing a land trust to accept conservation easements for a variety of purposes, including the preservation of natural areas and open space as well as agricultural lands. A report on preservation issues, including options and recommendations for the creation of a land trust, will be presented to the Board of Commissioners at its January 1997 meeting. Orange County,by its acceptance of the conservation easement, could serve as a holding agency until the formation of the land trust, or until another qualifying agency would be willing to accept the easement. RECOMMENDATION: The Administration recommends approval of the attached conservation easement. NORTHEN BLUE, L.L.P. 5 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.0.BOX 2208 DAVID M. ROOKS,111 CHAPEL HILL,NC 27515-2208 CHARLES H.THIBAUT CAROL J. HOLCOMB JAMES C.STANFORD TELEPHONE(919) 968-4441 CHERYL Y.CAPRON December 5, 1996 TELEFAX(919) 942-6603 ARLENE O.HANKS E-MAIL: nblaW @netpath.n@t Mr. Geoffrey E. Gledhill Attorney at Law P.O. Drawer 1529 Hillsborough, NC 27278 Re: University Manor Subdivision conservation easement Dear Geoff: Enclosed please find a revised draft of the conservation easement incorporating points made during the December 2 Commissioners meeting. The changes are as follows: Section 2.7 where I deleted the language"as shown in Exhibit B or" which appeared to be unnecessary. Section 3.2 where I added"Property"after"Protected" so the sentence would make sense. Section 16 where I extended the County's time to exercise its option from December 1, 1998 to December 1,2001. I did not change Section 13 dealing with the County's ability to assign the lease. Mr. Bailey does hope to realize a tax benefit from granting the easement,and in order for the easement to qualify for favorable tax treatment,the holder the enforcement rights created in the easement must be an organization qualified to hold conservation easements under IRC § 170(h). Hence, the limitation on assignments must remain in place. I fear the Commissioners did not fully appreciate the nature of the interest the easement document conveys. As we discussed,the document would be more accurately described as a negative servitude than as an easement in that the document grants the County power to enforce the prohibited use provisions of Section 2 rather than granting the County the right to use the property. Consistent with this fact, Section 5 places the burdens of ownership, including all costs and liabilities, on the homeowners association with the exception liability arising out of activities of County employees for whom the County would be responsible. I think it would be fair to say that the easement creates no new potential liability exposure for the County. It might be helpful if you were to explain this to the Commissioners since I believe it would allay most of their concerns. NORTHEN BLUE, L.L.P. 6 I look forward to hearing from you. Sincerely, NORTFFEN BLUE, LLP D ' Aioks,M DMR/tpj enclosures cc: Ms. Mary Willis Mr. Sanford Bailey LAW OFFICES 7 COLEMAN, GLEDHILL & HARGRAVE A PROFESSIONAL CORPORATION 129 E.TRYON STREET P.O.DRAWER 1529 HILLSBOROUGH,NORTH CAROLINA 27278 919-732.2196 FROM THE DESK OF FAX 919-732-7997 GEOFFREY E.GLEDHILL December 12, 1996 Bill Crowther, Chair Margaret Brown Moses Carey, Jr. Alice Gordon Stephen Halkiotis Orange County Board of Commissioners Post Office Box 8181 Hillsborough, North Carolina 27278 RE: University Manor Subdivision Conservation Easement Dear Board Members : Most of the points concerning the University Manor Conservation Easement raised by the Board during the December 2, 1996 Board meeting are covered in the abstract for this matter along with a revised Conservation Easement for your consideration on December 17 . During the December 2, 1996 meeting, one or more Board members was interested in the County having the ability to transfer the Conservation Easement to the University Manor Homeowners Association. The discussion about that centered on tax issues . The agenda abstract material addresses the tax issues . My point in writing is to raise a different concern. If the Homeowners Association becomes the owner of the Conservation Easement while it also owns the underlying fee simple interest in the protected property, the two legal interests in the land will "merge" and the Conservation Easement will likely be extinguished at the time of the "merger. " This will defeat the intent of everyone to protect these wetlands and conservation area. As a practical matter, only nonprofit corporations and units of local government that will qualify under the tax laws to hold conservation easements are going to be interested enough in conserving this area to accept the conservation easement. Therefore, I think it is reasonable and practical to limit the 8 Board of Commissioners Page 2 December 12, 1996 transfer or assignment of the Conservation Easement to organizations committed to the "ecological, scientific, educational and aesthetic value [of the Protected Property] in its present state as a natural area. " Very truly yours, CO GLEDHILL & HARGRAVE, P.C. offrey Gledhill GEG/lsg xc: Marvin Collins John M. Link, Jr. David M. Rooks, III, Esquire Mary Willis lsg-7 boarduni.man 9 Prepare by and return to: David M. Rooks, III, Northen Blue Law Firm, P.O. Box 2208, Chapel Hill, N.C. 27515 CONSERVATION EASEMENT This CONSERVATION EASEMENT made this day of 1996 by and between Key West Enterprises, Inc. ( "Grantor" ) and Orange County ( Grantee Witnesseth: WHEREAS, Grantor is the "M owner in fee simple of certain real property more particularly described in Exhibit A attached, (the "Protected 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, wildlife, or plants, or similar ecosystem, " as that phrase is used in P.L. 96-541 USC 170(h) (4) (A) ( ii) , as amended, and in regulations promulgated thereunder; and WHEREAS, t#e Grantor and Grantee have the common purpose of conserving the above-described conservation values of the Protected Property in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to N.C. Gen. Stat. S 121-34 et se " and Granter and Grantee wish avail themselves of th heiro--vef that law.— 1 10 IM Tit; e1e>::> s<:aer:: > >:»t e::> .:rz: ,. .;.: d ►.� 4� ........ 1...............:....r::. ..:...:..:::.:.:.::: :::.:::::::::::::....... ....... ....... LCE.... :•:: " »: : i e . : :. h .r :: .e.:.:. .im . ... � .:: ............. iMN �a�"......f4�r ...................... ......................................... ............................. .... ....................... .... .......?... r......................................................................................:.... .. t ::: ::::::::.:::::. :::::.:.:::.::::::...:•:::::::::.:: :::::.:::::•::• .:::.::......•:.•.::::::::::::::.::•::::•:.::::::::::::::::.:::..:...........::::: ::.::.:::::::: .: •.:' :><:.:............................................................................................................................................. ... :.:::::::..:.::.::.:::: ...: :. .:::...::::.:::::, ::: :: :::..:::.::...................::::::::...::::::::::.::::::..::.::::.::::..a::.::::.::::.::.::.::::::::::.....::...... ;: .;. <.:_;....: .:; .:..:. ...:..;;::...:..:...:..:....:..:.. ::..:....:::..;..,:. ::;<. ..... .., ...:..:...:...:...:..:..: ::..:...::..::. :::........:..:....:..:;.I.:bene ::::>; r: :::<:: :>:<::. ne::.a::.;•<•. :<:>a :>::> he.;:.:. a eaan:�::>:::: :::>:::>a :>: NOW, THEREFORE, t-he Grantor, for and in consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby gives, grants, bargains, sells and conveys unto tAe Grantee 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 Creek; 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. Vie Grantor intends that this Conservation Easement will restrict the use of the Protected 2 f 11 Property to only such activities as are consistent with the purpose of this Conservation Easement. 2 . Prohibited 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 €i4t37tt2 commercial or industrial use of or activity on the Protected Property 3 i �at3Q�•� . . :.: ;.;:.::�!�:::• .:..::�: �:.:>; �:s: �...;��r��a�::�.�C��::..ef;; eart. 2 . 3 The placement or construction of any buildings, structures, or other improvements of any kind (including, without limitation, fences, roads and parking lots) ; 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; 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 . 6 The draining, filling, dredging, or diking of any wetland areas, including any enlargement thereof, or the cultivation or other disturbance of the soil. 3 s 12 2 . 7 The pollution, alteration, or manipulation of the water courses located on the Protected Property or the creation of new water impounds of water; 2 . 8 The pruning, cutting down, or other destruction or .......................... removal of lives trees, except as necessary and with prior written approval of the Grantee pursuant to paragraph 4 .5 below, in accordance with generally accepted forestry conservation practices, to control or prevent hazard, disease, or fire. Dead trees May be-eut feE firreweed and to pEeveat ha$a-Ed; 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 disturbance or change in the natural 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, rodenticides, 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-road vehicles, or any other types of motorized vehicles 4 13 3 . Grantor's Reserved Rights. The Grantor hereby reserves the following rights: 3 . 1 Existing Uses . 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 Grantee in writing to allow the Grantee a reasonable opportunity to determine whether such change would violate the te'r'ms or purposes of this Conservation Easement. 3 . 2 Transfer. To sell, give, mortgage, lease or otherwise convey the Protected Property provided such conveyance is subject to the terms of this Conservation a . 3 . 3 Diseased 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. 4--Dead TEees . rem—dead—Fees- feE firewe 3 .4 Game Management. To eliminate exotics (starlings etc . ) and reduce populations of native species 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 . Grantee's Rights. To accomplish the purpose of this Conservation Easement, the following rights are conveyed to the 5 14 Grantee by this Conservation Easement: 4 . 1 Right to Protect. To preserve and protect the conservation values of the Protected Property. 4 .2 Right of Entry. To enter the Protected Property at all reasonable times and with prior notice and, if necessary, across other lands retained by ate 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) making 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 t4e Grantor; and (e) monitoring and management as described below. 4 . 3 Monitoring 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 t4te Grantee. 4 . 4 Easement. To prevent any 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 6 • 15 areas or features of the Protected Property that may be damaged by any inconsistent activity or use, pursuant to paragraph 9 . 4 .5 Discretionary Consent. Vie Grantee's consent 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 dt tit ..... ! 1 .: 3 ., are deemed desirable by both the Grantor and the Grantee, the Grantee may, in its sole discretion, give permission for such 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. T4*e 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 7 • 16 ............................................. eta ; commercial or industrial activities not provided for above. 5 . Costs 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 Protect <> ......... ...;:; .;;}:.}>;;.:: Protected Pro ert : :> t . ............ .::. $ ... e::: .::.si ... ...... »off Grantee sbaii maintain general liability insurance covering the activities of its v { employees, membeEs and ......................................... Q ve unteers 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. .:::.:.....:.. •}:•}:4:^:ti^i:{4;4};4}}}}iii}}::•}}}::•}}:tti•}ii}};v}::_{:..xv:::.L:•....n:::.:.........x.......r..................................................::i.�..................:::•}:•\•}:•}}:i::<iii}:^:................r......... .:`:::.i:`'�':::::::>}:c:>",::.;:.::..>:y'.::t•}::i.�:::'::.}::i::j:::iii:�iY}};{:,.'{:%:t'}::i:-}:':;i:i?.'ii:i:?::i::i':•:ii':t.":;^}}>':.:?':'jt::::}}::^:'.:i}';:::':::}}:{j.;.:.}ij:{::{{;:::'?:^:}`}::r}:^i}:•}.:::::i:+.y'}}::}::''::::'''%'}i}:{•X:::ti:'Yj•:{::`:::?i}::i}%:::j .:e� ;»a . ::::>a :>> o: .'::.. :»<:: •. : >::::.. :::::.�•;}:.:. :;':.; F. . $ 5 :. .:.} ...: ..r... s��s:sQ::: :::<:::and::::<:a : :'�.•. .. >.:>::.'':.<::«:�a�-'':>::>c�:::»::>��x�:::>:::>��sl�:��::.. r��::•} :<::::<#: . . ..:�::::�.ed ...:................ . i::.:{:;.};i:{.;'.:.:<{:;<{. i<: ;>:;•ii:;;.:'::..;::.::<.::t{{::':t:::<t{.;...}}i:.;:.}i} 't:. {{.;:"{t:..;;:.}..,.}}..}..{.:...}".}}" ;•ii:.::.ii:.i:.i;:.ii::::.i;.;:.;:. i"{{.::.;:.;i:.}:t{.}};;::.;:.>:.:;.:tt{{:.:>:«,::>; ss :::::Wei i::«::: i �-�g ...: . :>:: :: .:}::: ::<:: > >ams:>'•::..:;,' .........................................:...... .......;..:....�.;,.:.: ...:...:.�:::.,•. • {:::.;-. } -:..;{:..;;:i•}}:-}:'Y::�:::::;;.:>}}::'}�::�:::.'::::;.:;;�i i.•:i"-};ii::t•:;:';+}:;•�•}�::;�::�:::;':;�:;-}:;>:�}:}:}i;:�i:y}}:;a '�::::�ii'}2}:i::'}}}"-}::'-:;.}:-;:�:-i:•}:-}:c:;J}>}iii;:';: {•}:1:t{� J:-:M:i•:J}:Yn4 ri•:4:t•JJ}}J:•)"S4:L:�JJ}}}X.S^>}i}}':�4:is�}:ii}}iy:•:�T i}:�}}}:!.i}}:!4}}}:�i}•.:}:n}}}:"- �y��• •o: '�l:4ta5i�''. `%�;+t�''�.•e.-•kF.:. :`�.��.'i4::+"R�:'.'' +�.': ::;:':?s:`::'•:;':'::'�iiI�t'•'-'.::: }r}y<ti}:: ............... .......::w:•. ~ ACS ) �v.}..n:v.}Y,\:;•.w.::r.::,..............{•.......:;:::nvv:•YF........... :.{v•{....:::::'.... v v;r ...::w::::{x.•::n-:rv::--\'?':•}Y}:•}}!`:{ii}}ii:^:-i}:4Y}:C:"•}}}}:'}i:{�"}}}i:{i•:":ti^}}}:-.v:x;.:.;.....:...:..:...................;;...........................::..:....:.. nn .. •: �q..:.v....y.�.iyM::.iii. .. :aa:%-'.Yl�y� ••yy��1� ...!.b................ 4 ..�.5�. ....aea: :i:•.:i •� ... ... .{z:�•. -..`. :...i4::•. ) :}}'.}':::.�:::::::::.v::::.w::.v.14}nviii iY.•\:r,{. - .;";ii:.i'..::{.;:.;}}}:.:;,.:;::} :: t{:{:...........:>":t.}}i;'{.:".i:.i:;tti::...t,;:.i:{:.{: ;:..:{::...:.::.::::::::.::::::::::::::. i........................................................,...v...r......n.r..n........................................:......:...............................,..........v...:}:•}}Y.-:}::.}i}}}}:•}i:•irivtw.:v:.vn{w::::.w... �ylF/� /� {t•}}:t•:•tit•:•}X::}}}}}}}}i}}}::? ii}F.i.�.��;�:��f l:'�......:f.�..........i::i:`id•'-'':::Y}�.::i}i..2:.i::i}}:_ ':.}':•:!{i'..:j}�:::::p•,is ii:..`:!..:.X i::<[{:y.i:' :::y?!^�:::-.:it:: ::•.�..::u(:-.r�'l.��-,.i:}::::...::.t}:i ::yb:�i:iyi�:.��: ::}:{.•......y.y...-} �>::i::•.:i::::' ..::�. 8 17 .:::::..:::::::: ::::::::::: :::..:::. :::.:::..:.::.::::..::.�:::::::::.:::: :.::.::::::.:::::::..:::::::::.�:.:.:::..�::.>:.:.:..:...:.:::::::::: :..:�::::.::::::::::.:::::...:.:::.:::..:::::.::::. :::::...::..::.:: %...:. .:.._.: •:: :..:::::::.:..:......:.::...:...::.:::::::..'. ... :.:..::::.......:. ...:..: .:.,:......::..:::::......::-.::-.: :: :�.::..:. ..:.::... ::::: :: ::•}} .�.:�':i i'i'CiJ:'4i' ii i iii:'' ::i:: `,::: i:.: .: i.i: ?is ti;::.:;':iii .:::: dex ..d...::: r lts;::: ...... . . .e :>: :::: s :.::::::::::::.::.:..::..::.::::::::::::....:......................................r....... ..... ...............::.....:::::::...... .....::::.::::. ........... ...:::.:::::.:::.::::::.:::::.::::::::::::::::::::.:::.:. < >a :>::» >:»::>:fh :::;:ee:tee>::: r fid :::::: . ::::.::::::::.::.:::...;......:::::::::......:::::::::::::::::::::::::::::.::::.::::::.::.: ixdefital f y the et-heE fEefn any and all liabilities--ir a-ludic t ei-penBes ate--fees-that the indemalfied-gamey BUffeE 9E '-mac_M as a result -ef eE arl-sing-eut of tie-aetivities ef-the etherr 6 . Taxes. The Grantor agrees pay 3t any real estate taxes or other assessments levied on the Protected Property :. .::::..::::::: the Grantor becomes delinquent in payment of taxes or assessments, so that a lien is created against the Protected Property, the Grantee, at its option, shall, after written notice to t•he Grantor, have the ................... :............... ....... .........:i:::,.:,...:v,i..,.:.,.:::::.,.:::..... ON 4:n the PEeteeted PEepeEty by paying funds to discharge the lien or delinquent taxes or assessments, or to take such other actions as may be necessary to protect the Grantee's interest in the Protected Property and to assure the continued enforceability of this Conservation Easement. }:.}:;.}......................... .........,........... . ::.::. ..... . :.... y;..�...:..::...r.y::::��: •:::::.; .y.w::..:, v.v::.:i..::.�::;....q".Y..::.:?.)�j i!;i;•}iii'�:•F<.:}i?n::v..:ir'+:r:.i" {�:::}:v.::::....:::}v.:••.n.::::i!'::}:..... •..:nv'iii:.:w::is v..:i•::::i:::'...;:.::;>: ��: J5�''��11�.v�QQ.t..... .... •}}}:.. }:}ii:}:..`�. :�:::'.y'r.h •.:{:•,:::}1.. ,: i::: •.....�..:: :' ::v: ��:::Li�l�'.3:�: j �::::: :„M„•l:K:::. PS S am ......�.::::::::::::i.}ish}i}........n.............v.....n............•::....n.x:+.:v::w:...:.vi.;yS.•i:::::..•�.:... ..;.n.... r:•..::' vv}}::}:}}::hi}}:O}}{}:^:}:::::::::n�.�::::::::.:::::::::::.:......... 9 18 t 7 . Title. The Grantor covenants and represents that t4ie 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 Easement; that the Protected Property is free and clear of any and all encumbrances, including 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 Conservation Easement. B . Hazardous Waste. The Grantor covenants and warrants to the Grantee that #e has no knowledge of the existence of hazardous substances or toxic waste on the Protected Property and that nc 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 . Grantee's Remedies. If the Grantee becomes aware of a violation of the terms of this Conservation Easement, the Grantee shall give notice to tAe Grantor, at t-he Grantor's last known post office address, of such violation via certified mail, return receipt requested, and request corrective action sufficient to abate such violation and restore the Protected Property to its previous condition at the time of this grant. Failure by the Grantor to abate the violation and take such other corrective action as may be requested by tAe Grantee within thirty (30) days 10 19 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 MWON04 Property to its previous condition; to seek to enjoin the noncompliance by ex parte temporary or permanent injunction in a court of competent jurisdiction; and/or to recover any damages arising from the noncompliance. fed: '. :; n€ }:.:. ;::: ;'::. .:: ' ::> ................. .............. ...................... ................... ........::::::..... :.t:.::...3 ...:.::..:,:: .�Af. ...................................................... iM . ..........................:...:::.::.::.. .:::::::.:::::::::::::::::.v::::::::::::::::::.::v:::.,•::::::::;•.:•::::::::::.»•:xirt<:.}:�iti..:.vF:.:.,:.:::r.,,.n,..::.:.v:.v:::.»:.:.-0:}}:.}:4}:v.:.r:..,,•.vrw::::ii::.%•:.:?•.v.,•.,,..,,..:...:.:.::::.,..v::.,.:::::n•:.,:...:.:::::.::v .:::::::::::::....:...::::..:.:::.::.:,...::..::::::::.::.:::::........:?:.:::,.:::::::...... :: :.:.>..:' ....:..:.... . !.:}.:?!:,t},>:E:^�iit:Cv::M:::::J:r�r�+..Y�.•}T.i:R::::.:vvM-.w:.w:.w:::?�w:::}:::::::}:5::::::::: ::n�.iv:::::}:::::::::::.v:::::::::::::::::::.......................................?v}:r:}.?. •'r.:.LiSA',n.. T':'t{vv....... . '�• .}•.?y.•-•.: .0.+. .... •: Phis cumin a. isx. ::::.v::::::::::.v:::.v::.:v.v:.v::::.::w:::n:i»??�%�%vw::r.::•.??J:4'}.LV.�Y?54:isF.?::::.:'Y::?wJ.•i.�Y.•.•..-:.:w::::::..:.:.•F.,,?wri v}:Ci:::T:<JCLtii:ri?-ri•T:.?•:L4}}T::v}}ii'i:?viR:i s when recovered,d may Seeh �ama e n be applied by she Grantee, in its sole discretion, to corrective action on the Protected Property. •}}};vv Mv..ri•:::rv::::.v:.,v.n,w:..,:.,,w.vnvi:.'!•n::?+vnw.v:rr:nw.v:.............r........::v:. ..:.:::::::::::::w:•v:::•::::•::.v:::::nv::.v v:�w::m::v::::.v:::::x:ry xT:.}i}:^...?{:x.v .....:tiry.-.vv:••:::.vv....v:.........:....::v.:{.y:::::::::...:-:.:.:::x•:.::.::...::w:::;:::::::::::::v::::.::.::. . .:....>:.::.:...:...: :...:.......:±�a�:,.........:•':: ..:....:r;: .�.;.....•.:..:.:CT: �. :'i'{. �': :: iii:.-::.... :•:.}.::.:.x:n,•:.}'..- .....::'::: .•�.•:'.....n...;...v.4..'.`:._..9..:...j.�...'Sj....:.......� ..�...T�,.14:}R:. 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Emergency Enforcement. If the Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conservation values of the c Property, the Grantee may pursue its remedies under this paragraph without prior notice to the Grantor or without waiting for the period for cure to expire. :..::;:::::::.:.:::..;::.::::::::::.:..;:..:::::.::.;;;:.;:.::::::.::..::;. t ;:.;;. 9 .2 Failure to Act or Delay. The Grantee does not waive or forfeit the right to take action as may be necessary to e compliance with this Conservation 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 Grantee, its successors or assigns, in action to enforce any restriction or exercise any rights under this Conservation Easement. 9 . 3 Violations Due to Causes Beyond Grantor's Control. Nothing hereby shall be construed to entitle the Grantee to institute any enforcement proceedings against the Grantor for any changes to the Protected Property due to causes beyond the Grantor's control, such as changes caused by fire, flood, storm, 12 t 21 earthquake or the unauthorized wrongful acts of third persons . In the event of violations of this Conservation Easement caused by the unauthorized wrongful acts of third persons, t-he Grantor ...... agrees, upon request by the Grantee, to assign its f t of W 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 . Parties Subject to Easement. 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 representatives, successors and assigns, and all other successors in interest to Grantor and will continue as a servitude running in perpetuity with the Protected Property. 11. Subsequent Transfers. V3e Grantor agrees that the terms, conditions, restrictions and purposes of this grant or reference thereto will be inserted by the Grantor in any subsequent deed or other legal instrument by which t-he Grantor divests either the fee simple title or a possessory interest in the Protected Property; and t#e Grantor further agrees to notify the Grantee of any pending transfer at least thirty (30) days in advance. 12 . Merger. Vie Grantor and t4ie Grantee agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Protected Property. 13 . Assignment. The parties hereto recognize and agree that the benefits of this easement are in gross and assignable, 13 f 22 and the Grantee hereby covenants and agrees that if it transfers or assigns the easement it holds under this indenture, the organization receiving the interest will be a qualified organization as that term is defined in Section 170(h) (3) of the Internal Revenue Code of 1986 (or any successor section) and the regulations promulgated thereunder 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 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 . Extinguishment. The Grantor hereby agrees that, at the time of the conveyance of this Conservation Easement to tke 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 Easement at the time of the conveyance bears to the fair market 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 takes place which makes impossible or impractical any continued protection of the Protected Property for conservation purposes, and the restrictions contained herein are extinguished by judicial 14 23 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) (4) (A) (ii) , as amended and in regulations promulgated thereunder. 15 . Eminent Domain. Whenever all or part of the Protected Property is taken in exercise of eminent domain by public, corporate, or other authority so as to abrogate the restrictions imposed by this Conservation Easement, -t-he Grantor and tie 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 damages resulting from it, and the proceeds shall be divided in accordance with the proportionate value of tie 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 ►rotected .roperty in fee by deed of gift from Grantor within ene year# of the date of recording of the final plat for the final phase of University Manor subdivision as the 15 r 24 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, 2001 . Grantee may exercise this option upon written notice to Grantor. 17 . Miscellaneous 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 Successors and Assigns. The term "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-recordincx. Vie 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 Vo hni-& attorney-in- fact to execute, acknowledge and deliver any necessary instrument on its behalf. Without limiting the foregoing, the Grantor agrees to execute any such instruments upon request. 16 I 25 17 . 4 Captions . The captions herein have been inserted solely for convenience of reference and are not 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 shall, 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 Notices . Any notices required in this Conservation Easement shall be sent by registered or certified mail to the following address or such address as may be hereafter Grantor: Key West Enterprises, Inc . P.O. Drawer 1859 Wake Forest, NC 27588-1859 Grantee: Orange ...County .:::::::::: ........:...:::::::::::::::::::::::::.............................:}}:}: :.:::::::::::::::::::.:::::::•::::K:w:;is ia;w::v:v:::r: ,.:....m n.,n..n.r... ............ ....................................r:?i}}:^Y:}^:{4}'n+ri4}}}?;+i'i:{{vn n.,r.;:...x:.y�::::::{' :.:x•.x:?'+:{'i{ TO HAVE AND TO HOLD the said Conservation Easement unto the said Grantee forever. IN WITNESS WHEREOF, Grantor has executed and sealed this document the day and year first above written. Key West Enterprises, Inc . By: President 17 ATTEST: 26 Secretary State of North Carolina Orange County On this day of , 1996, who, being by me duly sworn did say that he is the Secretary of Key West Enterprises, Inc. , the corporation named in the foregoing instrument; that the seal affixed to said instrument is the corporation seal of said corporation; and acknowledged said instrument to be the free act and deed of said corporation. Notary Public My Commission Expires: lsg-7 conserv.eas 18 r DEC-12-t,3% La: l^ BQCCGMANPLEP P.01%02 7 27 1 ComtriiSSioner Gordon said that if they want to do this they want to get it right. Maybe the 2 minimum lot size should be considered and larger lot sizes be used. Some events would be great in 3 some places and some would be disasters. 4 5 Mr.Trapolk said that they have worked with the County for two years. They have included 6 the Orange County Health Department and the State Environmental people and are trying to do this 7 He said that the main concern is how the food is handled and the water served. 8 9 10 UNIVERSITY R PHASE t AEER.,_OVAL OF CONSERVATION BASEMENT 11 The County Commissioners were requested to accept a conservation easement for the 12 f oodpim and watlertd own in Phase l of University Manor. Planner Mary Wallis expiainad that as part 13 of the Resolution of Approval for Phase 1, there is a requitement that a portion of the open space in the 14 conservation am be owned by the Homeowners Association. This is a request for the County to take 15 over the area. In addition to addressing issues such as use restrictions, access, monitoring. 16 maintenance and enforcement.the easement could also allow the County to obtain title to the 17 conservation area at a later date and could provide for assignment by the County to a qualif0d owner. 18 in answer to a question from Commissioner Brown, David Rooks. the attorney for the 19 applicant, said that he draw the easement which is based on a Triangle Land Conservancy easement 20 model. The grantor wig be the developer or the Homeowners Association.depending at what point 21 the actual easement is execUted and the a will be the County. 22 Geoffmy Gle&A said that the County would maintain liability insurance in the event 9 is 23 used by County employees. He rested that the easement document being presented for approval Is 24 generally a good document. 25 Convni:sioner Gordon matte two corrections to the document which will be incorporated. 28 Commissioner Halkl tis said he has some concerns about the county taking ownership of 27 #0 conservation gasem & Geoffrey Gledhill noted that there is some risk to owning any interest In 26 property because there are msponsibi.. 8 that go along with ownership. Commissioner Haikiotis said 29 that he does not support the County taking ownership of this conservation easement unless he can be 30 convinced with additional intomhetion- 31 Co mmssiorer Carey said let there ate always risks with owning property. However.he 32 feels that lh"risk is mi`'lirnal and that the Vdft insurance wig cover the County in the event that 33 soRletling sh0 M happen. He f"is that the County should move ahead and own this easement and 34 prnc@ to estabW mWjf of vohide Whereby the County can immediately require the conveyance Of 35 this easement to anoter entity. 38 Commissioner Gordon said that this approval could be limited to this one request and not set 37 a preoedence for future ClOnveyance of conservation easenments for Ruh"ph""of this project• 38 Commissionw Brown asked that this be delayed and that the County move ahead with 39 developing a propw with SlmxI&f&and objectives and fit this into that program.. 40 Mary Wigs said that as a condition of the final plat, the open space must be owned by the 41 Homeowners Association with easements granted to the County or to the Triangle Land Conservancy- 42 Commissionw Hawallis asked d the Homeowners could wait to convey this easement until a 43 proposal is developed fdr this ate. GeOrey GWOW said that this is a condition of the Resolution of 44 Approval. The tlilougl t behind this was that the conservation area needed to be preserved and Oral 45 the only way to preserve it was to require it to have a conservation easement. 46 David Rooks clarified that the conservation easement does not require the County to do 47 anything,but requires the Homeowners Association to leave this land a lone. 48 A mobon was made by Commissioner Carey. seconded by Chair Crowther to approve the 49 WIT naicornmendstion. DEC-12-19% 10: 18 BOCC%h1ANAGER 91 96443004 P.02/02 8 t 28 1 Commissioner Gordon said she would like to refer this back to staff. She made two 2 suggestions which will be incorporated in the document.' One, the right of the County to give this 3 conservation easement bank to the Homeowners Association; and two, there be nothing in the 4 document that would preduds that from happening. 5 This was accepted as an amendment to the motion made by Commissioner Carey and 6 seconded by Chair Crowther. 7 After further discussion and detemminimg that the Homeowners Association does exist but 8 owns no property and has no membership.4 was decided to adopt this is principle with the language to 9 be worked out and brought back on December 17, 1996. 10 VOTE. AYES,4; NOS. 1 (Commissioner HalkWs) 11 12 Sc. REMED BMW POLICY FOR§CHOOL M.Q COUNL.CAIdITAL 13 PROJECTS 14 At the November 19th Board meeting,the Commissioners discussed the revised capital 15 funding policy which outlines the capital policy used in developing the Ten Year Capital Improvements 16 Plan. The Board of Commissioners asked Staff to make certain revisions to the draft policy presented 17 at the November 19th meeting. The revisions are listed in the abstract. John Link said that he 18 contacted both school superintendents and both responded in writing as distributed. Dr. Pedersen, 19 Superintendent of the Chapel Hill-Carrboro city Sdwol District,endorses the policy. Dr. Harrison, 20 Superintendent of the Orange County Schools, expressed concerns about their shortfall in revenue for 21 long-term capital needs which we not addressed including additional high school space. 22 Commissioner HaNdotis stated that he is opposed to 58-the one part where there is a 23 surplus of$4.5 mullion plus for one system and$167.000 negative for the other system. He hopes that 24 both of these numbers could be zero. He is concerned about the needs in the County facilities that 25 have not been addressed. He mentioned that parking lots are not paved, bathrooms are falling apart, 28 senior citizens and We children can barely see to eat and read in the Northern Human Services 27 Center. He will not support a plan that talks about possible tax increases and yet leaves a surplus 28 when thew are county facilities that need repair. He would like to see both of these end numbers,at 29 zero because there are needs for County government and County employees and all County Citizens. 30 In answer to a question from Chair Crowther. Budget Director SONY Kost said that the 31 numbers wd need to be updated now that they have the real numbers for the Southern Village 32 Elementary Sdhooi debt service. She will also be updating the salsa tax numbers which were 33 prosehted at the October 15th meeting. 34 John Link said that what they two done is pursue a plan,a formula or process which has 35 gotten them to this point. He suggested that this may be an hazer the Board may wish to continue 36 discussing on Saturday. He will be looking for direction from the Board. 37 Commissioner Carey agreed with Commissioner HaNdods about the ending balances at the 38 end of this ten year plan. He realizes the plan is not cast in stone and will be updated each year. He 39 would We to see some of the savings generated by favorable financing programmed into the County 40 facilities that need repairs or maintenance. He noted 00 if$4.5 million is left,Chapel Hill-Camboro City 41 School Ovid will geflefalMe reeds for that money. 42 A motion was made by Chair Croce,seconded by Commissioner Carey to continue the 43 discussion of this issue at the Board's retreat scheduled for Saturday, December 7, 19%. 44 VOTE: UNANIMOUS 45 46 47 Q �QM=CHANCES Mj THE MA CMS ORDINANCE TOTAL P.02