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HomeMy WebLinkAboutAgenda - 12-11-2007-3cORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: December 11, 2007 Action Agenda Item No. ~~ ~- ~ SUBJECT: Resolution Authorizing Contract to Purchase Real Property from Fred M. Kirby DEPARTMENT: Environment and Resource PUBIC HEARING: (Y/N) No Conservation ATTACHMENT 1) Resolution 2) Vicinity Map 3) Site Map 4) Offer to Purchase and Contract INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2590 PURPOSE: To approve a resolution authorizing Orange County's purchase of approximately 145 acres of land from Fred M. Kirby for a future Northeast Orange district park site subject to a conservation easement on the property granted to Triangle Land Conservancy or granted to another qualified conservation organization. BACKGROUND: Mr. Fred Kirby owns two adjacent parcels of land (145 acres total) located south of Schley Road in Little River Township. The County intends to acquire this land far a future district park for northern Orange County, likely featuring a combination of active and low-impact recreational uses. The property is located about five miles northeast of Hillsborough and 1/2 mile east of NC 57. The site is bounded to the north by Schley Road, to the east by a 30-acre farm property, to the south by Mincey Road and to the west by large-lot agricultural/residential properties. A vicinity map is provided as Attachment 1. The property is comprised of roughly one-half open agricultural fields and one-half forestland. The farmland portion is in three sections - a large pasture (40 acres) that fronts Schley Road, and two smaller sections (10 acres and 8 acres) used for hay production in the western and southern parts of the property, adjacent to Mincey Road. All open fields are on fairly level to gently rolling terrain. The woodlands are mixed-aged pine and hardwoods, which were selectively timbered in 1992. There are no structures on the property. There is a pond in the northeast corner fed by one of two streams that flows through the property and eventually to the South Fork tittle River located to the north. The intended use of the property is a future Orange County district park, which would likely include a combination of active and low-impact recreation, including playing fields on the open sections of the site. Much of the southern half of the property is forested and may be conducive to nature trails and picnic areas. A site map of the property is attached. 2 This site was identified following a comprehensive search for appropriate tracts using ERCD's natural resource database and geographic information system. The Kirby property was the top candidate from among many sites that were considered during the search. This acquisition will meet the identified needs for a district park in north-central Orange County, which dates back to the 1988. Parks Element of the Comprehensive Plan. This project was identified as a priority acquisition in the Lands Legacy Action Plan adopted for FY 2004-06. Following months of negotiations on contract terms and conditions, Mr. Kirby has agreed to sell the land to Orange County for $1,455,300 (or $10,000/acre), consistent with a market appraisal of the property. A conservation easement would also be placed on the property at a later date with Triangle Land Conservancy or another qualified conservation organization. Current plans are to "land bank" this property for future use. A master plan for this park will be developed in the future using a collaborative process that includes community input. The first step for that process will be a preliminary (or pre-) concept plan. A draft of this preliminary plan will be created by staff in the first quarter of 2008 and presented to the Board. There are no funds identified for facility development or for park operation at this site at the current time. In the meantime, some of the agricultural fields could be leased to a local farmer until the site is ready for park development. The property would otherwise be managed through the Lands Legacy Program until park construction is approved. County staff has determined that a portion of the site (approximately 5 acres) may be suitable for a solid waste convenience center for residents in the northeast part of the County. If so, the entrance to that center would be from Mincey Road located on the southern end of the property. Those intentions are stated in the attached resolution. A boundary survey of the site is required to complete this transaction. If the Board elects to move forward with this project, ERCD recommends hiring Alois Callemyn to perform the survey and to prepare the plat. Mr. Callemyn surveyed a portion of the site previously and is able to perform this work in an efficient and cost effective manner. Mr. Callemyn has submitted a proposal to complete this work for a cost not to exceed $8,550. G.S. 143, Article 3D allows counties to exempt themselves from a selection process for surveyors if the professional fee is less than $30,000. In order to expedite the survey, it is recommended that the County exempt this project from the more formal selection process. Upon approval by the Board, a closing on the purchase of this property is expected to occur on or before December 31, 2007. FINANCIAL IMPACT: The purchase price is $1,455,300 (or 10,000 per acre), with an additional $8,000 to $10,000 anticipated in closing costs. Funds would be paid from the County's 2001 Parks and Open Space bond (Lands Legacy). A total of $5.25 million has been appropriated to date from this source, with $2.42 million spent thus far. Additionally, $50,000 of the purchase price would be paid from the Solid Waste Enterprise Fund for the five-acre solid waste convenience center site. Future annual operating costs of a park constructed at this site are anticipated, and will be assessed at a later date. There would be no additional cost to the County for the proposed granting of a conservation easement. RECOMMENDATIONS: The Manager recommends that the Board: 1. Adopt the attached resolution; and 3 2. Authorize the Chair to sign the contract on behalf of the County, subject to final review by staff and County Attorney; and 3. Exempt this project from the surveyor selection process as provided in the N.C. General Statute 143, Article 3D; and 4. Authorize a contract to hire Alois Callemyn to complete a boundary survey and plat of property for recording in conjunction with the conservation easement, in an amount not to exceed $8,550, and authorize the Manager to sign the contract; and 5. Instruct the County Attorney and staffs from ERCD and Finance to schedule and complete a closing on the property expected to occur on or about December 31, 2007. 3a ORANGE COUNTY BOARD OF COMMISSIONERS RESOLUTION Intentions Regarding Acquisition of the Kirby Property WHEREAS, Orange County has an active Lands Legacy Program which includes a component for the acquisition of future park sites; and WHEREAS, the property owned by Mr. Fred Kirby (hereinafter "the Kirby property") in Little River Township, as identified in the attached map, meets the identified needs for a district park in north-central Orange County dating back to the 1988 Parks Element of the Comprehensive Plan; and WHEREAS, the Kirby property has two streams that flow north to the South Fork of the Little River; and WHEREAS, Orange County may have the need for a solid waste recycling and solid waste disposal convenience center to serve the northeast quarter of the County; and WHEREAS, a solid waste recycling and solid waste disposal convenience center can be located on the Kirby property compatibly with County protected watershed regulations and compatibly with the planned district park so long as the center's access roads/drives come from Mincey Road; and WHEREAS, before any facilities are sited on the property, the County will establish a collaborative planning process that includes public input from the community; NOW, THEREFORE, BE IT RESOLVED that the Orange County Board of Commissioners will acquire the Kirby property as defined in the attached map as the site for the future district park in north-central Orange County, with a master plan and park construction to occur at an undetermined point in time in the future. BE IT FURTHER RESOLVED that the Orange County Board of Commissioners hereby. states its intention to accept a conservation easement on the property substantially in the form of Exhibit A to the Offer to Purchase and Contract, granted to a qualified conservation organization, which will prohibit the location on the property of a solid waste landfill or a solid waste transfer station. BE IT FURTHER RESOLVED that any Orange County recycling and solid waste disposal convenience center located on the property will have its access roads/drives from Mincey Road. This the 11th day of December, 2007. Barry Jacobs, Chair Orange County Board of Commissioners Donna Baker, Clerk to the Board 0 0 l~° a ~JJ"M~,~ t?T,• 'hYr ~ 'Yi*{ Y~ .+~,;"~`.~`' ,4 ,4 f ' ~ • .,~ '. ~ ~~` ~ r ;~ ~' L~'. ~ i 7~t'a s _ 1. t` ..~~q~~p~.~ !l4'^ ~; ~ -;,~ = w ~ «i `1 ~ ~~~~ ~ ; i~ r ~ - ;~~ ~ ~ ~ ~ , .I ~ .~~~. ~ ~. ~~, Kirby Property ; ~,~ ~ ~~ F ~ ~ ~ ,a j ~ P t ~ ~ ~f- /4 ~ ~~ ~rj_ ,r}ti, ~ -=~ ~_~_,~ ~ ~Ja. ,~ 145 acres ~ .~ A '~tt / i ~ ; ~ j i ~, _ ~ l 4~ 1 "~~~ ~. S~•~v. r:./ v' -lr~~rSr f~`lr,~~~/sj~tr'. 1, ,.. 4 '1+,~ia" , *~K j~. ~ f ! ~ `i ~ '~ . ~ ~ ~ ~ 4r. ~ t , t f((Y/~C I .,= ;'ati.- ~„ / . / ihh ,,~~~~,~ /~ 7`v ..1 ' ,, ~ ~~ ~ ~ j ~ v~ h~`7 "'~~.~~ :l ~ac~T-,1~~ a-~Tr~` ~'1t5 ._Yc~', 1 ~ ~~ `c~-*i.+~ . '1 K ~'..d ~ aX~, :~ l ~_~ ~~~ ~(~~~f'- ~. ~,7 yr :~4 1 9. rt 1 jly~~~,/~~ :-a~~~ ~~r t x ~. V" F ~ S1F ~` a /~K~l L ~T L ~i'1 f ~ ~ a1S-7 ,:4 ' h - _.! _. I pia ~ .~Pf y~-J ~ :,tii=Y. ~+I r .. ~~f =~ JJJYYY 'Q / ~ ' S~ ~ t ~ t i . (,;. 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Gledhill; Coleman, Gledhill, Hargrave and Peek; P.O. Drawer 1529; Hillsborough, NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE OFFER TO PURCHASE AND CONTRACT THIS OFFER TO PURCHASE AND CONTRACT ("Agreement"), made and entered into this the _ day of 2007 by and between FRED M. KIRBY and WALKER DILLARD R:IlZBY, husband and wife, having an address of 17 DeHart Street, Morristown, New Jersey 07963, hereafter called "Seller", and ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate, a political subdivision of the State of North Carolina, having an address of P.O. Box 8181, Hillsborough, North Carolina 27278, hereafter called "Buyer"; WITNESSETH: Buyer hereby offers to purchase and Seller agrees to sell and convey the fee simple interest in the parcels of real property located in Orange County, North Carolina, which said 1 parcels of real property are hereinafter referred to as "the Property" as more particularly described as follows: Parcel l The approximately 135.43 acres of land and any improvements thereon, which land is illustrated on the GIS map that is Exhibit A hereto. The Property is identified as Orange County P.I.N. 9887-52-0801, Orange County tax map 1.25..3. Parcel 2 The approximately 10.1 acres of land and any improvements thereon, which land is illustrated on the GIS map that is Exhibit B hereto. The Property is identified as Orange County P.I.N. 9887-33-4585, Orange County tax map 1.25..2A. THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE AS FOLLOWS: 1. PURCHASE PRICE: The purchase price for the Property shall be ONE MILLION FOUR F[LJNDRED FIFTY FIVE THOUSAND TWO HUNDRED NINETY AND 00/100 DOLLARS ($1,455,290.00) plus any amount due Seller as the result of the calculation made in Section 6(c) below for ad valorem taxes on the Property for the calendar year in which the Closing (as hereinafter defined) occurs. The purchase price shall be paid in cash to Seller at the Closing. 2. TITLE: Title to the Property will be conveyed to Buyer at Closing by General Warranty Deed from Seller to Orange County, North Carolina. The General Warranty Deed shall convey title to the Property free of liens, encumbrances, easements, restrictions, rights and 2 8 conditions, including, but not limited to, any promissory note, mortgage, deed of trust, real estate contract, right of first refusal, or option to buy, other than current property taxes and rights, reservations, covenants, easements, conditions, and restrictions of record as of the effective date of this Agreement that do not materially affect the value of the Property, which exceptions must be approved in writing by Buyer, and the conservation easement and appurtenant rights which shall be created upon the recordation of the Deed of Conservation Easement as hereinafter defined and described (collectively the "Permitted Exceptions"). The General Warranty Deed conveying fee simple title to the Property shall be on a North Carolina Bar form General Warranty Deed. The description of the Property contained in the General Warranty Deed and in the Deed of Conservation Easement shall conform to the survey of the Property to be obtained by Buyer, at Buyer's expense, as prescribed in Section 6(d) of this Agreement or to existing and recorded surveys, at Buyers election. Prior to or at Closing (as hereinafter defined), Seller, in its sole discretion, may cause to be recorded (prior to the recordation of the General Warranty Deed conveying fee simple title to the Property to Buyer), a Deed of Conservation Easement substantially in the form attached hereto as EXIIIBIT A and incorporated herein by this reference for the purpose of conveying to Buyer, or to a nonprofit corporation or other nonprofit 3 entity mutually acceptable to Seller and Buyer, or jointly to Buyer and such nonprofit corporation or other nonprofit entity, in Seller's sole discretion, for the purpose of subjecting the Property to the easements and restrictions set forth therein. 3. EVIDENCE OF TITLE. Buyer will have title to the Property examined, and at Buyer's election, will obtain title insurance commitment(s) on the Property. The title examination and/or commitments must evidence Seller's ability to deliver title at Closing as set forth above. All costs necessary to procure the title examination and, if applicable, the title commitment(s) and final title insurance policies to be issued at Closing, shall be the responsibility of Buyer. 4. TITLE DEFECTS: If for any reason Seller cannot deliver title at Closing as required by Sections 2, 3 and 5 of this Agreement, Buyer may elect to (a) accept the Property with title as is; (b) refuse to accept the Property in which event this Agreement shall terminate and neither parry shall have any further duties, obligations or liabilities to the other hereunder; or (c) allow Seller additional time to pursue reasonable efforts to correct the title defect or objection, including bringing any necessary quiet title actions or other lawsuits. 5. REPRESENTATIONS, WARRANTIES AND COVENANTS__OF SELLER: 4 (O Seller makes the following representations and warranties to Buyer as of the effective date of this Agreement and again as of the Closing Date: (a) Title. At the Closing Date, Seller shall have good, marketable, and indefeasible fee simple title to the Property subject only to the Permitted Exceptions, and Seller is not aware of any matters that adversely affect title to the Property that are not of record in Orange County. (b) Leases. There are no leases, licenses, or other agreements granting any person or persons the right to use or occupy the Property or any portion thereof except as documented by Seller as provided in Section 7(b) of this Agreement. Any such documentation shall be attached as an exhibit to this Agreement at the time it is executed, acknowledged and delivered by Seller to Buyer. (c) Options. Seller has not granted any options nor is Seller committed nor obligated in any manner whatsoever to sell the Property or any portion thereof to any party other than Buyer. (d) Construction Liens. To the extent any improvements have been made or will be made to the Property prior to the Closing Date that might form the basis of mechanics' or materialmen's liens, Seller agrees to keep the Property free from such liens that might result and 5 to indemnify, defend, and hold Buyer harmless from any and all such liens and all attorneys' fees and other costs incurred by reason thereof. (e) Reports. All Reports, certificates, and other documents containing factual information delivered by Seller, or by Seller's agents in connection with this Agreement, are and shall be, to the best of Seller's knowledge, true and complete and shall not contain any untrue statement of material fact or omit to state any material fact, the disclosure of which is necessary to make the statements contained therein and in this Agreement, in light of the circumstances under which they are made, not misleading. (f) Environmental. (1) Seller has no knowledge of any underground storage tanks being located on the Property. Buyer agrees to perform a Phase I Environmental Assessment of the Property (hereafter "the Phase I"), at Buyer's expense. Should the Phase I disclose that one or more underground storage tanks are located on the property, a condition precedent to Buyer's obligation to close on the sale of the Property is that the following be done at Seller's expense: (1) any underground storage tanks located on the Property be removed, (2) all discharged fuel oil or other contaminants be removed from the Property, (3) a copy of a certificate demonstrating 6 ~a removal and clean-up be provided to Orange County, c/o Pamela Jones, Director of Purchasing and Central Services, 132 E. King Street, Hillsborough, North Carolina 27278, as soon as the certificate is available and (4) the original of the certificate be provided to Buyer at the closing. In the event Seller is unable or unwilling, in its sole discretion, to effect any such cure or remediation, it shall so notify Buyer, in writing, and Buyer may thereafter elect to (i) accept the Property "as-is" and in such condition; or (ii) refuse to accept the Property in which event this Agreement shall terminate and neither party shall have any further duties, obligations or liabilities the other hereunder. (2) Seller warrants and represents to Buyer as follows: (i) Seller has no knowledge of, and no reason to believe (A) that any industrial use has been made of the Property, (B) that, except for chemicals used in the farming of the Property, the Property has been used for the storage, treatment or disposal of chemicals or any wastes or materials that are classified by federal, State or local laws as hazardous or toxic substances, or (C) that any manufacturing, landfilling or chemical production has occurred on the Property. 7 ~3 (ii) To the best of Seller's knowledge, the Property is in compliance with all federal, State and local environmental laws and regulations, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Public Law No. 96-510, 94 Stat. 2767, 42 USC 9601 et seq., and the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law No. 99-499, 100 Stat. 1613. (iii) Seller has fully disclosed to Buyer that, except for chemicals used in the farming of the Property, Seller has no knowledge of the existence, extent and nature of any hazardous materials, substances, wastes or other environmentally regulated substances (including without limitation, any materials containing asbestos), in or under the Property or used in connection therewith. (3) Seller shall indemnify and hold Buyer harmless from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities, costs (including clean-up costs), judgments and expenses (including attorneys', consultants' or experts' fees and expenses) of every kind and nature suffered by or asserted against Buyer as a direct or indirect result of any warranty, certificate or representation made by Seller in subsection (e) herein being false or 8 i ~- untrue in any material respect, or (ii) any requirement under any law, regulation or ordinance, local, State or federal, which requires the elimination or removal of any hazardous materials, substances, wastes or other environmentally regulated substances existing or placed on the Property at any time up to and including the Closing Date. (4) Should the Phase I disclose the existence on the Property of any hazardous materials, substances, wastes or other environmentally regulated substances (including without limitation, any materials containing asbestos), a condition precedent to Buyer's obligation to close on the sale of the Property is that the following be done at Seller's expense: (1) any such material or substance located on the Property be removed, (2) other found contaminants be removed from the Property, (3) that a copy of a certificate demonstrating removal and clean-up be provided to Orange County, c/o Pamela Jones, Director of Purchasing and Central Services, 132 E. King Street, Hillsborough, North Carolina 27278, as soon as the certificate is available and (4) that the original of the certificate be provided to Buyer at the closing. In the event Seller is unable or unwilling, in its sole discretion, to effect any such cure or remediation, it shall so notify Buyer, in writing, and Buyer may thereafter elect to (i) accept the Property "as-is" and in such condition; or (ii) refuse to accept the Property in which event this Agreement shall 9 ~~ terminate and neither party shall have any further duties, obligations or liabilities the other hereunder. (5) Seller's obligations under this Section shall survive the closing and continue in full effect notwithstanding receipt of the purchase price. (g) Representations/Warranties. All representations and warranties contained in this Agreement are true 'and correct as of the date of execution of this Agreement and will be true as of the Closing Date and shall survive closing and execution and delivery of the Deed and shall not be merged therein. 6. SETTLEMENT CHARGES: (a) Seller shall pay for the preparation of the General Warranty Deed, for the preparation and recording of all documents necessary to convey marketable fee simple title free of liens and encumbrances, and for any tax the responsibility for which is Seller's, including for example excise and other transfer tax, as required by law. (b) Buyer shall pay for the preparation of the Deed of Conservation Easement and the recording of both the General Warranty Deed and the Deed of Conservation Easement. 10 loo (c) Ad valorem taxes on the Property, if any, for the calendar year in which the closing occurs shall be paid by Seller. The credit for pro-rated ad valorem taxes on the Property that would be due Seller if Buyer were not a North Carolina local government shall be added to the purchase price for the fee simple interest in the Property as provided in Section 1 of this Agreement. Seller shall pay any Orange County ad valorem taxes on personal property of Seller for the entire year of the closing. Seller shall pay all ad valorem taxes on the Property for calendar years prior to the calendar year in which the closing occurs and all deferred taxes and any tax penalties including late listing penalties. (d) Buyer shall pay for a survey of the Property if it elects to have the property surveyed and all other closing costs other than those associated with environmental cleanup. 7. CONDITIONS: (a) Seller agrees to allow Buyer access to the Property for the purpose of inspecting, surveying, testing and analyzing the Property at any time prior to the closing of the purchase of the Property. (b) Upon request of Buyer, Seller shall deliver to Buyer, as soon as reasonably possible following the signing of this Agreement, copies of any title information in possession of 11 i~ or available to Seller, including, but not limited to, title insurance policies, attorneys opinions on title, surveys, covenants, deeds, notes, deeds of trust, easements, leases, licenses or other agreements granting any person or persons the right to use or occupy the Property or any portion thereof. Any unwritten lease, agricultural or otherwise, of any portion of the Property shall be documented by affidavit of Seller, evidencing the term of any such lease. (c) Any and all deeds of trust, liens or other charges against the Property not assumed by Buyer must be paid and cancelled by Seller prior to or at closing. (d) A condition precedent to Buyer's and Seller's obligations to close on the sale of the Property is that Buyer's Board of Commissioners formally approve the purchase and approve BOTH the form of the Deed of Conservation Easement in the Property .and the form of the General Warranty Deed conveying the fee simple interest in the Property to Buyer by action in an open public meeting as provided by law. 8. MISCELLANEOUS PROVISIONS: (a) This Agreement embodies and constitutes the entire understanding between the parties with respect to the transaction contemplated herein and all prior agreements, understandings, representations and statements, oral or written, are merged into this Agreement. 12 ~~ Neither this Agreement nor any provision hereof maybe waived, modified, amended, discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment or discharge or termination is sought, and then only to the extent set forth in such instrument. (b) This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without, however, giving effect to any principle of conflicts of law. (c) The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof. (d) Any provision herein contained which by its nature and effect is required to be observed, kept or performed after the Closing Date, shall survive the closing and remain binding upon and for the benefit of the parties hereto, their heirs, personal representatives, successors or assigns, until fully observed, kept or performed. 13 i~ (e) This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective beneficiaries, heirs, personal representatives, successors and permitted assigns. (f) As used in this Agreement, the masculine shall include the feminine and neuter, and vice versa; the singular shall include the plural and the plural shall include the singular, as the context may require. 9. CLOSING: All parties agree to execute any and all documents and papers necessary in connection with the closing and transfer of title to the Property (the "Closing") on or before 2007 (the "Closing Date') at a location in Hillsborough, North Carolina, to be determined by Buyer. 10. POSSESSION: Possession of the Property shall be delivered to Buyer at Closing. 11. 1031 TAX FREE EXCIiANGE: Buyer agrees to cooperate with Seller if Seller desires to effectuate a 1031 tax free exchange on the sale of the Property. If Seller makes use of the 1031 exchange, Seller shall pay any and all costs and expenses associated therewith including any incurred by Buyer in its cooperation. Provided, however, Buyer shall not be 14 a~ required, as a condition of the sale and purchase of the Property and the effectuation by Seller of a 1031 tax free exchange, to in any way indemnify Seller or the 1031 tax free exchange agent selected by Seller. 12. BROKERS: Seller and Buyer represent to each other that neither party has engaged the services of a real estate broker or agent in negotiating or consummating the closing of the conveyance of the Property as set forth herein, and each party hereby indemnifies and holds the other harmless from and against any claims for commissions together with any costs and reasonable attorney's fees incurred by such party in defending against such claims, resulting from any breach of the representations set forth herein. IN WITNESS WHEREOF, Fred M. Kirby and Walker Dillard Kirby have hereunto set his and her hand, the day and year written above, and Orange County, North Carolina has caused this instrument to be signed by the chair of the Orange County Board of Commissioners and attested by the Clerk to its Board of County Commissioners, all the day and year written above. [The remainder of this page is intentionally left blank. Signature page follows.] 15 a[ SELLER: FRED M. KIRBY WALKER DILLARD KIRBY BUYER: By: ATTEST: Donna S. Baker, Clerk to the Board of Commissioners STATE OF COUNTY ORANGE COUNTY, NORTH CAROLINA Chair Orange County Board of Commissioners I, , a Notary Public of County, , certify that Fred M. Kirby and Walker Dillard Kirby personally appeared before me this day and acknowledged the due and voluntary execution of the foregoing instrument. Witness my hand and official stamp or seal, this the day of , 2007. Notary Public My commission expires: Typed or Printed Name of Notary Public 16 (Seal -Stamp) as NORTH CAROLINA COUNTY OF ORANGE I, a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal, this the day of , 2007. Notary Public Typed or Printed Name of Notary Public My commission expires: (Seal -Stamp) F:\Lisa\orangecounty\Kirby contract (draft #1) rev by GEG 82407.doc 11838\02\M\0020range County Contract (10.23.07 WDB CL Draft #4) 17 a3 Exhibit A This instrument prepared by and return to: Geoffrey E. Gledhill, Coleman, Gledhill, Hargrave & Peek, P.C., P.O. Drawer 1529, Hillsborough, NC 27278 STATE OF NORTH CAROLINA PIN COUNTY OF ORANGE DEED OF CONSERVATION EASEMENT This Deed of Conservation Easement ("Conservation Easement") is made and entered into effective as of the Effective Date (as hereinafter defined) by having an address of referred to as "Grantors"), and having an address of (hereinafter referred to as "Grantee"). RECITALS Grantors are the sole owners, in fee simple, of those certain tracts of undeveloped farm land (the "Property") which consist of a total of approximately 145 acres located in Little River Township, Orange County, North Carolina and identified as (hereinafter Page 1 of 22 ~`~ on that certain. plat of survey titled "Final Plat Property Surveyed for Orange County," prepared by plat of survey is recorded at Plat Book _, Page _, Orange County Registry. which The' Property contains surface waters of importance to Grantors, Grantees, the people of Orange County and the people of North Carolina. At least one stream on the Property flows generally north to the South Fork Little River, which flows into the Neuse River and into water supply reservoirs for the cities of Durham and Raleigh, and, via interconnection agreements with Hillsborough and the Orange Water and Sewer Authority, such stream(s) contribute(s) drinking water to the people of Orange County. The Properly is located in the Little River Watershed, which watershed is protected by Orange County land use regulations. Furthermore, the Property contains notable natural scenic and open qualities that can be enjoyed by the general public, namely the views along Schley Road and Mincey Road. It is the purpose of this Conservation Easement to preserve, maintain and protect the water features on the Property, the quality of the water flowing in those water features and the natural scenic and open qualities of the Property. Page 2 of 22 a5 The water features on the Property, the quality of water flowing in those water features and the natural scenic and open qualities of the Property to be preserved, maintained and protected by this Conservation Easement are hereinafter collectively referred to as the "conservation values" of the Property. Grantors and Grantees agree that the present uses of and improvements to the Property are consistent with the purposes of this Conservation Easement. Grantors intend that the conservation values of the Property shall be preserved, maintained and protected from activities are or may be detrimental to the conservation values of the Property. Grantors further intend to grant to Grantees the right to preserve, maintain and protect the conservation values of the Properly in perpetuity. The conservation purposes of this Conservation Easement are recognized by, and the grant of this Conservation Easement will serve, the following clearly delineated governmental conservation policy: The Uniform North Carolina Conservation and Historic Preservation Agreements Act, North Carolina General Statute 121-34 et seq., which provides that conservation agreements are Page 3 of 22 o~ "interests in land" which may be effective "perpetually;" and which provides for the enforceability of restrictions, easements, covenants or conditions "...appropriate to retaining ... water areas predominantly in their natural, scenic, or open condition ... and to forbid or limit ... activities detrimental to ... water conservation...." Grantors and Grantees have the common purpose of protecting the conservation values of the Property. Orange County is a body politic existing under Chapter 153A of the North Carolina General Statutes, and is qualified to hold conservation easements under the applicable laws of the State of North Carolina. is a North Carolina nonprofit corporation qualified to hold conservation easements under the applicable laws of the State of North Carolina. AGREEMENT NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) in hand paid, the above-stated recitals, the restrictions, easements, covenants and conditions hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of Page 4 of 22 a~ which are hereby acknowledged, Grantors hereby grant and convey unto Grantees, and Grantees hereby accept, a Conservation Easement in, to, over and upon the Property of the nature and character and to the extent hereinafter set forth. The restrictions, easements, covenants and conditions of the Conservation Easement herein granted and conveyed are as follows: 1. Grant of Conservation Easement Grantors hereby voluntarily grant and convey to Grantees, and Grantees hereby voluntarily accept, a perpetual Conservation Easement in the Property, which easement is an immediately vested interest in real property of the nature and character described herein. Grantors, for themselves and their legal representatives, heirs, successors (including successors in title to the Property), assigns, lessees, agents and licensees, covenant and agree that they shall not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the restrictions, easements covenants and conditions set forth herein. Grantors Page 5 of 22 a~ hereby grant to each of the Grantees the power and authority to enforce the restrictions, easements, covenants and conditions set forth herein in the manner described below. 2. Statement o Purpose It is the purpose of this Conservation Easement to preserve and maintain the conservation values of the Property and to protect the conservation values of the Property from the activities prohibited in this Conservation Easement, which prohibited activities are or may be detrimental to the conservation values of the Property. As authorized in the Uniform Conservation and Historic Preservation Act, N.C. Gen. Stat. § 121-34 et seq., this Conservation Easement is perpetual; it restricts the Property in perpetuity; and it is enforceable by Grantees against the Grantors, their legal representatives, heirs, successors (including successors in title to the Property), assigns, lessees, agents and licensees. 3. Extinguishment o Development Rights Grantors hereby relinquish and forfeit any and all development rights with respect to the Property, or any part thereof, to the extent inconsistent with or in violation of any of the Page 6 of 22 o[~ ~ restrictions, easements, covenants or conditions set forth herein. The parties covenant and agree that at no time on or after the Effective Date shall the Property or any part thereof be developed in any manner that is inconsistent with or in violation of any of the restrictions, easements, covenants or conditions set forth herein. 4. Ri~-hts and Responsibilities Retained by Grantors Grantors reserve to and for themselves and their legal representatives, heirs, successors (including successors in title to the Property), assigns, lessees and licensees all customary rights and privileges of ownership, including the rights to sell, lease and devise the Property provided that any such transaction is subject to all of the restrictions, easements, covenants and conditions set forth in this Conservation Easement and written notice of such transaction is delivered to Grantees, together with any and all other rights not expressly prohibited or limited by this Conservation Easement. Unless otherwise expressly provided herein, no provision of this Conservation Easement shall be construed or interpreted to require Grantors to take any action to restore the condition of the Property after any natural disaster or other event over which they had Page 7 of 22 30 no control. Grantors understand that no provision of this Conservation Easement relieves them of any obligation or restriction regarding their use of the Property imposed by law. S. Prohibited Activities Except to the limited extent otherwise expressly provided in this Conservation Easement, the following uses, activities and operations of, on or upon the Property, or any part thereof, shall not be permitted: (a) The development or construction of any residential or commercial use building(s) or other improvement(s) unless otherwise expressly provided herein. (b) Dumping or storing or permitting others to dump or store soil, trash, refuse, debris, ashes, garbage, waste, abandoned vehicles or parts, appliances, machinery, hazardous substances or toxic or hazardous waste. (c) Operating or permitting others to operate a solid waste landfill or a solid waste transfer station. 6. Permitted Activities Page 8 of 22 ~' The following uses, activities and operations of, on or upon the Property shall be permitted provided that any such use, activity or operation shall comply with any and all applicable local, state and federal ordinances, codes, regulations, statutes and laws and shall not unreasonably impair or compromise the conservation values of the Property: (a) The use and storage of agricultural organic debris and turf products and byproducts (including the composting of biodegradable material). (b) The development, use and operation of a public access park with outdoor recreational activities and facilities. (c) The use and storage of necessary maintenance equipment used to improve, maintain and repair the Property. The parties acknowledge that Orange County operates community recycling and solid waste disposal convenience centers at strategic locations across Orange County. Orange County shall be permitted to construct and operate a community recycling and solid waste disposal convenience center on the Property, and may store recycling and solid waste within such center consistent with Orange County's community recycling and solid waste disposal convenience Page 9 of 22 3a center operation policies; provided, however, that the sole means of vehicular ingress, egress and regress to such center shall be from Mincey Road. The construction or use of any road, driveway or other means of vehicular access to the center from Schley Road shall be not permitted. 7. Water Rights Grantors shall not transfer, encumber, lease, sell or otherwise separate appurtenant water rights from title to the Property itself. 8. On~oin~; Responsibilities of Grantors and Grantee Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on Grantees, or in any way to affect any existing obligation of the Grantors or their successor in title as owners of the Property. Among other things, this shall apply to: (a) Taxes. Grantors shall continue to be solely responsible for payment of all taxes and assessments levied against the Property. If Grantees are ever required to pay any taxes or Page 10 of 22 33 assessments on their interests in the Property pursuant to this Conservation Easement, Grantors will reimburse Grantees for the same. (b) Upkeep and Maintenance. Grantors shall have and retain, as owners of the Property, the responsibility for, and shall bear all costs and liability of any kind related to, the operation, upkeep and maintenance of the Properly (including any water impoundments located thereon). Grantees shall not have or incur any obligation pursuant to this Conservation Easement for the operation, upkeep or maintenance of the Property. 9. Enforcement With reasonable advance written notice to Grantors or otherwise with the Grantors' prior consent, Grantees, or either of them, shall have the right to enter the Property for the purpose of inspecting the Property for compliance with the terms of this Conservation Easement. Grantees, or either of them, shall have the right to prevent violations and remedy violations of any restriction, easement, covenant and/or condition set forth in this Conservation Easement by judicial action, which shall include, without limitation, the right to bring proceedings in law or in Page 11 of 22 3~i-- equity against any party or parties attempting to violate the terms of this Conservation Easement. Except when an ongoing, or imminent violation could irreversibly diminish or impair any of the conservation values of the Property, Grantees, or either of them, shall give Grantors written notice of any violation and thirty (30) days to cure such violation, before commencing any legal proceedings. Grantees, or either of them, may obtain an injunction to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a court may issue an injunction or order requiring Grantors to restore the Property to its condition prior to the violation, as restoration of the Property maybe the only appropriate remedy. In any case where a court fmds that a violation has occurred, Grantors shall reimburse Grantees for all of Grantees' expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorneys' fees. The failure of Grantees to discover a violation or to take immediate legal action shall not bar Grantees, or either of them, from doing so at a later time for that violation or any subsequent violations. in any case where a court fmds no such violation has occurred, each party shall bear its own costs. In any case where the court fmds that there was a Page 12 of 22 35 complete absence of a justiciable issue of either law or fact raised by the losing party, the court may award a reasonable attorney's fee to the prevailing party as provided by applicable law. 10. Trans er of Conservation Easement Each of the Grantees shall have the independent right, in its sole discretion, to transfer its rights and interests pursuant to this Conservation Easement to another public agency, nonprofit corporation or trust, or any private corporation or business entity, provided the agency or organization expressly agrees to assume the responsibility imposed on the Grantees by this Conservation Easement and has the necessary authority to hold and administer conservation easements. 11. Transfer of Property Grantors agree to incorporate by reference the terms of this Conservation Easement in any deed or other legal instrument by which they transfer or divest themselves of any interests, including leasehold interests, in all or a portion of the Property. Grantors shall notify Grantees in writing at least thirty (30) days before conveying the Property, or any part thereof or interest therein. Failure of Grantors to incorporate by reference the terms of this Conservation Easement Page 13 of 22 3~ in an instrument of transfer or conveyance or to notify Grantees of a transfer or conveyance shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 12. Interpretation This Conservation Easement shall be interpreted under the laws of the State of North Carolina and the laws of the United States, resolving any ambiguities and questions of the validity of specific provisions so as to give maximum effect to its conservation purposes. 13: Perpetual Duration; Severability This Conservation Easement shall be a servitude mm~ing with~the Property in perpetuity. Every provision in this Conservation Easement that applies to Grantors or Grantees shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors (including successors in title to the Property) as their interests may appear. Invalidity of any of the restrictions, easements, covenants or conditions offset forth this Conservation Easement, or any part thereof, by court order or judgment shall in no way affect the validity of any of the other restrictions, easements, covenants and conditions set forth herein, each of which shall remain in full force and effect. Page 14 of 22 3~1 14. Mer er The parties agree that all of the restrictions, easements, covenants and conditions set forth in this Conservation Easement shall survive any merger of the fee and easement interests in the Property. 1 S. Notices Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail to Grantors and Grantees, respectively, at the following addresses, unless a party has been notified in writing by the other of a change of address: To the Grantors: To the Grantees: 16. Grantors' Title Warranty Grantors warrant that they hold fee simple title to the Property, free from all encumbrances, except for those exceptions identified in Exhibit B attached to this Conservation Page 15 of 22 38 Easement, and hereby covenant that they shall defend such title against all claims that may be made against it. 17. Subsequent Liens on Property No provision of this Conservation Easement shall be construed or interpreted as impairing the ability of Grantors to use the Property as collateral for subsequent borrowing. Any such liens shall be and remain subordinate to this Conservation Easement. I8. Subsequent Easements/Restrictions on the Property The grant of any easement that might diminish or impair the conservation values of the Property is prohibited. Any easement or restriction or other encumbrance affecting title to the Property placed of record at any time on or after the Effective Date shall be subordinate to this Conservation Easement. 18. Grantors' Environmental Warranty When and as used in this Conservation Easement, "Environmental Law" or "Environmental Laws" shall mean any and all Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any Page 16 of 22 3~ governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste, hazardous materials, worker and community right-to-know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect. When and as used in this Conservation Easement, "Hazardous Materials" shall mean any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials and any other element, compound, mixture, solution or substance which may pose a present or potential hazard to human health or the environment. Grantors warrant that the Property is, to the best of their knowledge, in compliance with, and shall remain in compliance with, all applicable Environmental Laws. Grantors warrant that they have no knowledge of any notices by any gover,~mental authority of any violation or alleged Page 17 of 22 40 violation of, non-compliance or alleged non-compliance with or any liability under any Environmental Law relating to the operations or conditions of the Property. Grantors warrant that they have no actual knowledge of a release or threatened release of any Hazardous Materials on, at, beneath or from the Property in violation of any Environmental Laws. Grantors shall indemnify and hold harmless Grantees against all costs, claims, demands, penalties and damages, including reasonable attorney fees, arising from or connected with the release or threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantors or any other prior owner of the Property. Grantors' indemnification obligation shall not be affected by any authorizations provided by Grantees to Grantors with respect to the Property or any restoration activities carried out by Grantees, or either of them, at or upon the Property; provided, however, that each of the Grantees shall be responsible for any Hazardous Materials discharged on, to or in the Property by it. 20. Entire A~t-eement Page 18 of 22 ~~ This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, and understandings or agreements relating to the said easement. 21. Recording Clause Grantees shall cause this Conservation Easement any and subsequent amendments hereto to be timely recorded, at Grantees' expense, in the Office of the Register of Deeds of Orange County, North Carolina, and may re-record this Conservation Easement or any amendment hereto at any time as may be required to preserve their rights under this Conservation Easement. When and as used in this Conservation Easement, the term "Effective Date" shall mean the date on which this Conservation Easement is recorded in the Office of the Register of Deeds of Orange County, North Carolina. TO HAVE .AND TO HOLD this Deed of Conservation Easement unto Grantees and their respective successors and assigns, forever. Page 19 of 22 ~a IN WITNESS WI-~REOF, Grantors and Grantees, intending to legally bind themselves, have each caused this Deed of Conservation Easement to be duly executed effective as of the Effective Date. GRANTORS: Accepted: GRANTEES: $y: Page 20 of 22 ~f-3 Acknowledgments STATE OF _ COUNTY OF I, , a Notary Public for said County and State do hereby certify that, personally appeared before me and voluntarily acknowledged the due execution of the foregoing instrument. Witness my hand and official stamp or seal this the day of , 200_. Notary Public My commission expires: NORTH CAROLINA COUNTY OF ORANGE Typed or Printed Name of Notary Public (Seal -Stamp) I, , a Notary Public of Orange County, North Carolina do hereby certify that Donna S. Baker personally appeared before me this day and acknowledged that she is Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the act of Orange County, North Carolina the foregoing instrument was signed in its name by the Chair of said Board of Commissioners, and attested by her as Clerk to said Board of Commissioners. Witness my hand and official stamp or seal this the day of , 200_. Notary Public My commission expires: Typed or Printed Name of Notary Public (Seal -Stamp) Page 21 of 22 ~~ NORTH CAROLINA COUNTY OF I, , a Notary Public of Orange County, North Carolina do hereby certify that personally appeared before me this day and acknowledged that he/she is of , a North Carolina nonprofit corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed by him/her in the corporation's as the act of the corporation. Witness my hand and official stamp or seal this the day of , 200_. Notary Public Typed or Printed Name of Notary Public My commission expires: (Seal -Stamp) F:\Lisa\orangecounty\Kirby CE draft 82407.doc 11838\02\M\003Conservation Easement (10.25.07 WDB CL Draft #2) Page 22 of 22