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HomeMy WebLinkAboutAgenda - 06-23-2004-9bORANGE COUNTY BOARD OF COUNTY COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 23, 2004 Action Agenda Item No. q-b SUBJECT: Contract to Purchase the Adams Tract/Grant of Conservation Easement from the Town of Carrboro to Orange County DEPARTMENT: Environment and Resource Conservation PUBLIC HEARING: (Y/N) No ATTACHMENT 1) Location Map 2) Site Plan 3) Offer to Purchase and Contract 4) Draft Conservation Easement INFORMATION CONTACT: David Stancil, 245-2590 Rich Shaw, 245-2590 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 336-227-2031 PURPOSE: To consider the joint purchase of the Adams property (approximately 27 acres) with the Town of Carrboro and to consider the acceptance of a conservation easement from the Town of Carrboro, BACKGROUND: Orange County and the Town of Carrboro are collaborating on the purchase of approximately 27 acres of a 30-acre tract of land located in Carrboro. The property is owned by the Adams family, and includes the historic Weaver House (ca. 1740). The Adams family will retain the house and about three acres in private ownership, The County and Carrboro intend to acquire this land for three primary purposes: 1) to make the site available to the public for low-impact recreation, including part of the proposed trail network for the future Bolin Creek Greenway, 2) to protect portions of a significant natural area and wildlife corridor, and 3) to help protect the water quality of Bolin Creek, The Adams property is located north of Estes Drive (near the railroad crossing) and adjacent to Wilson Park, which is owned and managed by Carrboro, The anticipated use of the Adams property for low-impact recreation will complement the more active recreation facilities at Wilson Park. Proposed facilities include walking trails, benches, interpretive signs, improved river access, and a bike trail within an existing sewer line easement, Ample parking is currently available at Wilson Park for the expanded facilities, A site plan for the anticipated future use of the Adams property is attached. The Tawn of Carrboro views acquisition of the Adams property as crucial to developing its greenway system. This property is a vital link to allow for long-planned expansion of the Bolin Creek Greenway, which is partially completed in Chapel Hill, as well as a conduit for a network of greenways through Carrboro to the University's planned new campus on the Horace Williams tract ("Carolina North"), the County's future Twin Creeks (Moniese Nomp) Park, and other open space lands in the Rural Buffer. In February 2003, Carrboro and Orange County agreed that Orange County's Lands Legacy Program would take the lead role in negotiating a purchase of the Adams property. Following several months of negotiations on contract terms and conditions, the Adams family has agreed to sell the land to the Town of Garrbaro for $1,550,000 (about $55,000/acre). The County and Carrboro will share in the cost of the purchase, but the land is to be owned and managed by the Town of Carrboro. Orange County s interests in the property will be represented through a conservation easement granted by Carrboro to the County, thereby adding perpetual use restrictions intended to protect the future use of the property as a low- impact park and natural area. The State of North Carolina will hold a second conservation easement on a six-acre portion of the property acquired with funding assistance from the NC Clean Water Management Trust Fund. Upon approval by the Board, a closing on the property is expected to occur on or before September 30, 2004. The conservation easement will also be conveyed at the closing. FINANCIAL IMPACT: The purchase price is $1,550,000. Funding will be shared equally by the County and the Town of Carrboro. The County share of the purchase price ($775,000) would be paid with funds from the County's 2001 Parks and Open Space bond, with $750,000 from the allotment for Joint Town-County Open Space/Carrboro greenways (as requested by the Town) and $25,000 from the Lands Legacy Fund (2001 Bond funds). Another $8,000-10,000 in closing costs (including a property survey) is expected, and those costs would also be shared equally. The County share would come from the aforementioned Lands Legacy Fund. RECOMMENDATION(S): The Manager recommends that the Board • Approve the purchase of approximately 27 acres of land known as the Adams Tract, located at the end of Wafters Road in Carrboro (the specific acreage to be determined by a survey); and • Authorize the Chair to sign the contract on behalf of the County, subject to final review by staff and county attorney; and • Authorize the Chair to sign the conservation easement on behalf of the County, subject to final review by staff and county attorney; and • Instruct the County Attorney and staffs from ERCD and Finance to schedule and complete a closing on the property on or before September 30, 2004. 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"~I ~~ y ~ ~ h ~ V'~y~ ~ ,~~ 5~. ~O ~ V~ 'S I(jj ~Ci ~ ` S~ 1~~ ~ ~'F ~ ~~ p ~`~ ~~ L ^~ ~~ L l' S"'h` ~ ~ .~W .a. _~ h fir. ~", u.. .7r1: 1 Q Adams Tract (28+/-acres) / ~ Proposed Weaver Boundary (2+/-acres) r1i Streams N n/ Existing Facllllies & Development (Tails) r . ~ ' !"`;i Paposed Future Development (Walking Trails. Interpretive LOOps &BIke T2Ii) 700 0 100 200 Feet Covmy of Dan9e Sewer Una Easement ® Environment 8 Roswrca Parcel Boundary Gonservalion Dopanment 1098 Odhophoto al3oro4 S Prepared by: Geoffrey E. Gledhill Return to: Geoffrey E. Gledhill; Coleman, Gledhill, Hargrave & 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 , 2004 by and between MARTHA ADAMS GALLI, and ANN A. ADAMS and JOHN MOZART, Co-Trustees of the Testamentary Trust created under The Last Will and Testament of John Evi Adams, having an address of 2834 N.W..31s` Terrace, Gainesville, Florida 32605, hereafter called "Sel ler", and ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate, a political subdivision of the State of North Carolina, having an address of P.O. Box 8181, Hillsborough, North Carolina 27278, hereafter called "Buyer"; WITNESSETH: Buyer hereby offers to purchase and Seller, upon acceptance of said offer, agrees to sell and convey, all of that plot, piece or parcel of real property located in Orange County, North Carolina, which said real property is hereinafter referred to as "the Property" and is more particularly described as follows: The 27-28 acres, more or less, (not less than 27 acres) of the 30 acre, more or less, tract of land identified as Orange County P.hN 9779-80-1616 that has an Orange County tax reference of TMBL 7.30...11, which 27-28 acres, more or less, excludes the residence located on the 30 acre, more or less, tract and its curtilage, and which 27-28 acres, more or less. A more pazticulaz description of the Property will be attached to this Agreement and incorporated herein as Exhibit A once the Survey of the Property that will be performed as prescribed in Paragraph 4(d) of this Agreement is completed. Each party will sign and date the exhibit once attached in order to acknowledge their consent thereto, and once signed and dated, Exhibit A shall become an integral part of this Agreement to the same degree as if it had been attached hereto and incorporated by reference on the date first above written. THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE AS FOLLOWS: PURCHASE PRICE: The purchase price for the Property shall be ONE MILLION FIVE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($1,550,000) plus any amount due Seller as the result of the calculation made in Paragraph 4(c) of this Agreement. The purchase price shall be paid at the closing.. 2. TITLE: Title will be delivered to Buyer at closing by a General Warranty Deed from Martha Adams Galli and a Special Warranty Trustees Deed from Ann A. Adams and John Mozart, Co-Trustees of the Testamentary Trust created under the will of John Evi Adams, made to Orange County, North Carolina, which shall be fee simple marketable title, free of liens, encumbrances, easements, restrictions, rights and conditions, including, but not limited to, any promissory note, mortgage, deed of trust, real estate contract, right of first refusal, or option to buy, other than current property taxes and rights, reservations, covenants, easements, conditions, and restrictions of'record as of the effective date of this Agreement that do not materially affect the value of the Property or unduly interfere with Buyer's intended use of the Property, which exceptions must be approved in writing by Buyer ("Permitted Exceptions"). Utility easements that are necessary for the residential use of the residence located on the 30 acre, more or less, tract from which the Property will be subdivided are hereby reserved on the Property, which utility easements, if they do not already exist on the date of this Agreement, shall be established on the plat of the Property at a location or locations mutually agreeable to the Seller and the Buyer„ The deeds conveying the Property shall be on a North Carolina Bar General Warranty and Special Warranty Deed forms. The Property description in the deeds shall conform to the survey of the Property to be performed as prescribed in Paragraph 4(d) of this Agreement.. 3. REPRESENTATIONS WARRANTIES AND COVENANTS OF SELLER: Seller makes the following representations and warranties to Buyer as of the effective date of this Agreement and again as of the Closing Date: (a) Title. At the Closing Date, Seller shall have good, marketable, and indefeasible fee simple title to the Property subject only to the Permitted Exceptions, and Seller is aware of no other matters that adversely affect title to the Property. (b) Leases., There are no leases, licenses, or other agreements granting any person or persons the right to use or occupy the Property or any portion thereof except as described in this Agreement. (c) Options, Seller has not granted any options nor is Seller committed nor obligated in any manner whatsoever to sell the Property or any portion thereof to any party other than Buyer. 8 (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, Sel ler agrees to keep the Property free from such liens that might result and to indemnify, defend, and hold Buyer harmless from any and all such liens and all attorneys' fees and other costs incurred by reason thereof. (e) Reports. All Reports, certificates, and other documents containing factual information delivered by Seller, or by Seller's a gents 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 warrants and represents to Buyer as follows: (i) Seller has no knowledge (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, landf311ing or chemical production has occurred on the Property, (ii) To the best of Seller's knowledge, the Property is in compliance with all federal, State and local environmental laws and regulations, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Public, L aw No. 96-510, 94 Stat, 2767, 42 USC 9601 et sec ., and the 9 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 use in connection therewith.. (2) Seller's obligati ons under this Paragraph 3(f) shall survive the closing for 2 years and continue in full effect notwithstanding receipt by Seller 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 the Closing and execution and delivery of the Deed for 2 years and shall not be merged therein. Provided, however, the warranties contained in the Deeds shall have a duration as provided by law. 4. SETTLEMENT CHARGES: (a) Seller shall pay for the preparation of a deed, for the preparation and recording of all documents necessary to convey marketable fee simple title free of liens and encumbrances, and for the excise tax required by law. (b) Buyer shall pay for recording the deed. (c) Ad valorem taxes on the Property, if any, for the calendar year in which the closing occurs shall be paid by Seller.. Buyer's s hare of the pro-rated ad valorem taxes on the Property that would be charged to Buyer at the Closing if Buyer were not a North Carolina local government shall be added to the purchase price as provided in Paragraph 1 of this 10 Agreement. Seller shall pay any ad valorem property taxes on personal property of Seller for the entire year of the Closing. Seller shall pay all deferred taxes and any tax penalties including late listing penalties. (d) Buyer shall cause the Property to be surveyed, shall cause a recordable plat of the Property to be prepared, pay the cost of the survey and the plat of the Property and pay any other closing costs not itemized in Paragraph 4 of this Agreement. The survey shall be approved by both the Buyer and the Seller, which approvals shall not be unreasonably withheld. 5. CONDITIONS: (a) Seller agrees to allow Buyer access to the Property for the purpose of inspecting, testing and analyzing the Property at any time prior to the closing of the purchase of the Property. Buyer agrees that in its inspecting, testing and analyzing of the Property it will not damage the Property. Buyer agrees, to the extent permitted by law, to indemnify Seller for any damage Buyer causes to the Property in conducting its inspections. (b) On request of Buyer, Seller agrees to exercise Seller's best efforts to deli ver to Buyer, as soon as reasonably possible following the signing of this agreement, copies of any title information in possession of or available to Seller, including, but not limited to, title insurance policies, attorneys opinions on title, surveys, covenants, deeds, notes, and deeds of trust and easements relating to the Property. (c) Any and all deeds of trust, liens or other charges against the Property not assumed by Buyer must be paid and cancelled by Seller prior to or at closing, (d) Seller acknowledges that it is the intent of Buyer to assign all of its rights and interest in this Contract to the Town of Carrboro, North Carolina ("Carrboro") and that 11 Carrboro will be the grantee in the deed from Seller. Buyer will acquire from Carrboro a Conservation Easement in the Property. Seller, by this agreement, consents to the assignment of this Contract from Buyer to Carrboro.. (e) A condition precedent to Buyer's obligat ion to close on the sale of the Property is that Buyer's Board of Commissioners formally approve the purchase of the Property by action in an open public meeting as provided by law, 6. MISCELLANEOUS PROVISIONS: (a) This Agreement embodies and constitutes the entire understanding between the parties with respect to the transaction contemplated herein and all prior agreements, understandings, representations and statements, oral or written, are merged into this Agreement, Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged or terminated except by an instrument signed by the party against whom the enforcement of such waiver, modification, amendment or discharge or termination is sought, and then only to the extent set forth in such instrument. (b) This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without, however, giving effect to any principle of conflicts of law.. (c) The captions in this Agreement are inserted for convenience of reference only and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof, (d) Any provision herein contained which by its nature and effect is required to be observed, kept or performed after the Closing Date, shall survive the closing and remain binding upon and for the benefit of the parties hereto, their heirs, personal representatives, 12 successors or assigns, until fully observed, kept or' performed, and to the extent otherwise stated in this Agreement. (e) This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective beneficiaries, heirs, personal representatives, successors and permitted assigns. (f) As used in this Agreement, the masculine shall include the feminine and neuter, and vice versa; the singular shall include the plural and the plural shall include the singular, as the context may require. (g) Any provision contained in this agreement which by its nature and effect, if required to be observed, kept or performed after closing shall survive the closing and shall remain binding upon and for the benefit of the parties hereto until fully observed, kept or performed, (h) Seller and Buyer acknowledge and represent that they have dealt with no broker in connection with this sale and purchase. Each party agrees, to the extent permitted by law, to indemnify and hold the other harmless from and against any and all claims, demands or the cost and expense thereof, including reasonable attorneys' fees, arising out of any brokerage commission fee or other compensation due or alleged to be due in connection with the sale and purchase contemplated by this Agreement based upon an agreement to have been made or other action alleged to have been taken by the indemnifying party. 7. CLOSING: All parties agree to execute any and all documents and papers necessary in connection with the Closing and transfer of title to the Property on or before September 30, 2004 in Orange County, North Carolina ("Closing Date" ). 13 8. POSSESSION: Possession of the Property shall be delivered at closing.. [Remainder of page is intentionally left blank. Signature page follows.] 14 IN WITNESS WHEREOF, the Seller has hereunto set his hand and seal, the day and year written above, and Orange County has caused this instrument to be signed by the chair of the Board of County Commissioners and attested by the Clerk to its Board of County Commissioners, all the day and year written above. SELLER: MARTHA ADAMS GALLI by attorney-in-fact Ann A. Adams ANN A. ADAMS, Co-Trustee Under the Will of John Evi Adams JOHN MOZART, Co-Trustee Under the Will of John Evi Adams BUYER: ORANGE COUNTY, NORTH CAROLINA By: Barry Jacobs, Chair Orange County Board of Commissioners ATTEST: Donna S, Baker, Clerk to the Board of Commissioners This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. Orange County Finance Officer Isg:orangecounty\Adams wnUact (G-14-04) clean due Pr°aft 15 Prepared by and return to: Geoffrey E, Gledhill; Coleman, Gledhill, Hazgrave and Peek; P, O, Drawer 1529; Hillsborough, NC 27278 NORTH CAROLINA COUNTY OF ORANGE WARRANTY DEED OF CONSERVATION EASEMENT This Grant of Conservation Easement (hereinafter "Conservation Easement") is made the _ day of , 2004 by the TOWN OF CARRBORO, NORTH CAROLINA, having an address of 301 West Main Street, Carrboro, NC 27510 (hereinafter "Grantor") and ORANGE COUNTY, NORTH CAROLINA, having an address of Post Office Box 8181, Hillsborough, NC 27278 (hereinafter "Grantee"), The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context. RECITALS A. The Grantor is a North Carolina municipal corporation, and is the sole owner in fee simple of certain Property, more particularly described in Exhibit A, attached hereto and incorporated herein (the "Property") which consists of approximately 27 acres of land, located in Chapel Hill Township, Orange County, North Carolina, and identified as on the plat of'property dated titled °° ,"prepared by ,Professional Land Surveyor, which plat is recorded at Plat Book _ Page _, Orange County Registry (PIN 9779- 80-1616). The property includes the improvements that are described in Exhibit B, attached hereto and incorporated herein. Draft 16 These lands, comprising approximately 27 acres, are hereinafter referred to as either "the Property," "the Grantor's Property" or the "Easement Area." The Grantor wishes to maintain the Property as a woodland suitable as habitat for the native flora and fauna of the North Carolina Piedmont, and to maintain the Property for certain public outdoor recreation uses as more particularly described herein, and to protect the quality of water running off from this land and into Bolin Creek, which river also has conservation value. B. The Grantee is a body politic existing under Chapter 153A of the North Carolina General Statutes. C. The Easement Area is a significant natural area that qualifies in its present condition as a "...relatively natural habitat of fish, wildlife, or plants, or similar ecosystem," as that phrase is used in P.L.. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in regulations promulgated thereunder, Specifically, the Easement Area is habitat for a variety of native plants and animals described on Pages .34-35 of the broentwy of the Natural Areas and Wildlife Habitats of Orange County, Nor°tl: Carolina, written by Dawson Sather and Stephen Hall and conducted for the Triangle Land Conservancy in coordination with the North Carolina Natural Heritage Program in December 1988. The native plants and animals include tulip poplaz, beech, red oak, white oak, cherrybazk oak, post oak, blackjack oak, shagbark hickory, pignut hickory, umbrella magnolia, trillium, dwarf crested iris, Devil's bit, four-toed salamander, flicker, phoebe, and barred owl. Following is an excerpt from the Natural Heritage Inventory: "Reasazs for sign~cance: T1ais is one of the few r°ertrainirrg wooded stream corridors in the vicir:ity of Chapel Hill and Cm•rboro. It includes one of only nine sites where the four-toed salan:ander° (Ilen:idaetvliunt scutatum , a stnte-listed species of anrknowrr distr°ibution, has been recorded in the county. " One of the most outstanding aesthetic, features is the small bluff just upsh~eam fi°om the Southern Railway trestle, where the str°earn takes a 90-degree bend. Above this roclry bend, the forest is dominated by beech trees (Fagus rartdi olta) and other hm•dwoods that descend to the creek. The conservation purposes of this easement, notwithstanding anything to the contrary contained herein, are also recognized by, and this Conservation Easement will also serve, the following clearly delineated governmental conservation policies: (1) the Orange County Board of Commissioners' goal (adopted June 21, 1999) to identify and coordinate the preservation of the County's most significant natural areas; and (2) the Land Use Element of the Orange County Comprehensive Plan (adopted September 2, 1981 as amended) with its goal of conserving and protecting Orange County's D~~aft 17 significant "Resource Protection Areas" from adverse development impacts, including natural areas, wildlife corridors and lands placed by individual property owners into conservation easements; and (3) the protection of similar Orange County properties designed to protect conservation and open space values tluough conservation easements granted to the Grantee and others in the vicinity of the Grantor's Property; and (4) Article 17 of the North Carolina General Statutes 11.3A-24, entitled Conservation, Farmland and Open Space Protection and Coordination, otherwise known as the "Million Acre Initiative," which provides that the State of North Carolina shall encourage, facilitate, plan, coordinate, and support appropriate federal, State, local, and private land protection efforts so that an additional one million acres of farmland, open space and conservation lands in the State are permanently protected by December 31, 2009; and (5) the requirement by the State of North Carolina of a basinwide management plan for the Cape Fear River, for the purpose of protecting water quality, public water supply, significant wetlands and natural areas within the watershed; and (6) the Cleary Water Management Trust Fund, NCGS 113-145.1 et seq., which recognizes the importance of protecting riparian buffers in protecting and conserving clean surface water; and (7) the Land and Water Conservation Fund (16 USC 4601- 4601-1 I) established by the Recreation Coordination and Development Act (PL 88-29, approved May 28, 1963, 77 Stat, 49), whiclx assists in preserving, developing, and assuring accessibility to all citizens of the United States of present and future generations and visitors who are lawfully present within the boundaries of the United States such quality and quantity of outdoor recreation resources as may be available and are necessary and desirable for individual active participation in such recreation and to strengthen the health and vitality of the citizens of the United States. The natural and wildlife habitat resources of the Property, and its contribution to the outdoor recreational opportunities in this urban area, and its contribution to the protection of the open space and cultural resources of the Town of Caxrboro, and the other conservation interests described herein are collectively referred to as the "conservation values" of the Easement Axea, D. The characteristics of the Easement Area, its current use and state of improvement, are depicted on an Orange County GIS map and sketch of the Easement Area and other adjoining property of Grantor prepared by Grantee for the Grantor, which is attached as Exhibit B to this Conservation Easement and incorporated herein by reference. The Grantor worked with the Grantee to ensure that the GIS map and sketch is a complete and accurate description of the Easement Area as of the date of this Conservation Easement. It will be used by Draft 18 the Grantor and Grantee to assure that any future changes in the use of the Easement Area will be consistent with the terms of this Conservation Easement. However, the GIS map and sketch is not intended to preclude the use of other evidence to establish the present condition of the Easement Area if there is a question about its use. E. The Grantor and Grantee have the common purpose of conserving the above-described conservation values of the Easement Area in perpetuity, and the State of North Carolina has authorized the creation of Conservation Easements pursuant to the terms of the North Carolina Conservation and Historic Preservation Agreements Act, N.C.. Gen. Stat. § 121-34 et seq., and N.C. Gen. Stat. §§ 160A-266 - 279, which provide for the enforceability of restrictions, easements, covenants or conditions "appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricuhural, horticultural, fazming, or forest uses," and the Grantor and Grantee wish to avail themselves of the provisions of those laws. NOW, THEREFORE, the Grantor, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein, hereby gives, grants and conveys unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Easement over the Easement Area of the nature and character as follows: 1. PURPOSE, The purposes of this Conservation Easement are to ensure that the Easement Area will be retained forever predominantly in its natural, forested, and open space condition; to protect native plants and animals, or plant communities on the Easement Area, while allowing certain limited uses on the Easement Area that are compatible with and not destructive of the conservation values of the Easement Area, such as research and educational activities that will not impair or interfere with the conservation values or interests of the Easement Area. Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Easement Area that is inconsistent witlr the purposes of this Conservation Easement.. However, unless otherwise specified below, nothing in this Conservation Easement shall require the Grantor to take any action to restore the condition of the Easement Area after arty act of God or other event over which Grantor had no control. Grantor understands that nothing in this Conservation Easement relieves it of any obligation or restriction on the use of the Easement Area imposed bylaw.. 2, EASEMENT AREA USES. Arry activity on, or use of, the Easement Area inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural and open condition and restricted from any development drat would impair or interfere with the conservation values of the Easement Area, Without limiting Draft 19 the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that the allowed activities do not impair the conservation values of the Easement Area. Additional retained rights of Grantor are set forth in Paragraph .3 below, 2.1 Subdivision. The Property may not be divided, subdivided or partitioned, nor conveyed except in its current configuration as an entity. 2.2 Construction. Grantor shall have the right to construct and maintain paved or unpaved trails, for pedestrian or bicycle use only, within the Easement Area as long as the trails are no more than 10 feet wide and are constructed and located in compliance with both the guidelines of the state Clean Water Management Trust Fund, the federal Land and Water Conservation Fund and with the Site Plan provided as Exhibit B. The trails may include wooden steps or bridges where they are required by the terrain. New trails shall be located a minimum of fifteen (15) feet from the top of the bank of Bolin Creek and away from it and its tributaries, and should be sited so as to not cause disturbance to the conservation values of the Easement Area. Grantor has the right to construct or install picnic tables, benches, kiosks and interpretive signs within the Easement Area. No other structures may be placed or constructed in the Easement Area.. Furthermore, there shall be no constructing or placing of any outdoor lighting, utility pole, utility tower, conduit or line on or above the Easement Area. 2..3 Maintaining Improvements. Grantor shall have the right to maintain, remodel, and repair permitted improvements, and in the event of their destruction, to reconstruct any permitted improvement with another of similar size, function, capacity, location and material. 2.4 Agricultural Use. Agricultural uses on the Easement Area are prohibited. 2.5 Timber Harvest. Commercial timbering of trees within the Easement Area is prohibited. Trees may be removed, cut and otherwise managed to control insects and disease, to prevent personal injury and property damage, and for firewood and construction of permitted improvements in the Easement Area and fences that maybe located on the Easement Area. Cutting, removal or harvesting of trees except as expressly allowed in this Section 2.5 shall be permitted only with the written permission of the governing board of Grantee and then only in accordance with a Forest Management Plan which shall be in writing and approved by both Grantor and Grantee and provided further that all timber roads shall be constructed of permeable materials and shall be no wider than eight (8) feet. 2.6 Grazin . Grarrtor shall not graze or pasture domestic animals on the Easement Area for any purposes. D~~aft 20 2.7 Recreational Use.. Consistent with the purpose of and the limitations contained in this Conservation Easement, Grantor shall have the right to engage in and pem~it others, whether or not for consideration, to engage in recreational uses of the Property, including hiking, picnicking, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land outside of what is allowed in Section 2.2. Pursuit of and the killing of wildlife by any means is prohibited on the Property except as expressly provided in Section 2.14. Grantor shall promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Easement Area, including but not limited to prohibiting any recreational use that would permit destruction of one or more of the conservation values of the Easement Area. 2.8 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials; and no change in the topography of the land in any manner except as necessary to allow a) the construction of the permitted improvements, b) the maintenance of permitted hiking and biking trails, and c) the combating of erosion or flooding. 2.9 Destruction of Plants.. Grantor shall have the right to cut and remove diseased trees, sluubs, or other plants, to cut and remove invasive (usually non-native) trees, sluubs and other plants, and to cut firebreaks, Grantor shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Conservation Easement. There shall be no other removal, harvesting, destruction or cutting of native trees, shrubs or other plants, Except for use around improvements, there shall he no planting ofnon-native trees, shrubs, or other plants in the Easement Area, Furthermore, except to accommodate the activities expressly permitted in this Conservation Easement, there shall be no use of fertilizers, plowing, introduction ofnon-native animals, or disturbance or change in the natural habitat in any manner. 2.10 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Easement Area that would be detrimental to water purity or, except as specified herein, that could alter the natural water level or flow in or over the Easement Area. There shall be no alteration, depletion or extraction of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies on the Easement Area. Diking, draining, filling or removal of wetlands is prohibited. 2,.11 SiQrrage. No signs or billboards or other advertising displays are allowed on the Easement Area except as follows: signs authorized by Town of CazrLoro zoning regulations whose placement, number and design do not diminish the scenic character of the Easement Area maybe displayed to identify trails and the conservation values of the Easement Draft 21 Area, to identify the name and address of the Grantor and Grantee, to give directions, to advertise or regulate permitted uses on the Easement Area and prescribe rules and regulations for recreational use of the Easement Area. 2.12 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as required to control invasive species detrimental to the conservation values of the Easement Area, 2.1.3 No Dumping. There shall be no storage or dumping of trash, garbage, abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous substance, or toxic waste on the Easement Area. There shall be no changing of the topography through the placing of soil or other substance or material. There shall be no land fill or dredging spoils, nor shall activities be conducted on the Easement Area that could cause erosion or siltation on the Easement Area. 2.14 Predator Control. Grantor shall have the right to control, destroy, or trap predatory and problem animals that pose a material threat to livestock and/or humans by means and methods expressly approved in writing by Grantee. The method employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques.. 2.15 Conunercial Development. All commercial orrndustrial uses of or activity within the Easement Area is prohibited. This restriction on use shall not be construed to prohibit use of the Easement Area for recreational, educational and scientific purposes, as long as such activities are undertaken on a noncommercial basis and otherwise as perniitted by this Conservation Easement. 2.16 Development RiQlrts. With the exception of the right to construct and use permitted improvements authorized elsewhere in this Conservation Easement, Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Easement Area, and the pazties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Easement Area, as it now or hereafter may be bounded or described, or to any other property. ADDITIONAL RIGHTS RETAINED BY GRANTOR, Grantor retains the following additional rights: (a) Existing Uses. The right to undertake or continue any activity or use of the Easement ?,rea not prohibited by this Conservation Easement. Prior to malting any change in use of the Easement Area, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Easement. Draft 22 (b) Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Easement Area is and shall always be subject to the terms of this Conservation Easement. 4, GRANTEE'S RIGHTS.. To accomplish the purpose of this Conservation Easement, the following rights are granted to Grantee by this Conservation Easement, The granting to the Grantee of the rights articulated in this Paragraph does not impose the obligation on the Grantee for the upkeep or maintenance of the Easement Area: (a) Right to Protect. The right to preserve and protect the conservation values of the Easement Area and enforce the terms of this Conservation Easement. (b) Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after prior reasonable notice to Grantor, to enter the protected Easement Area periodically for the purposes of`. (a) inspecting the protected Easement Area to determine whether the Grantor, its representatives, assigns, heirs, successors, invitees and the public using the Property are complying with the covenants and purposes of this Conservation Easement; and (b) monitoring and research as described below. (c) Monitoring and Reseazeh, The right, but not the obligation, to monitor the native plant and wildlife populations, plant comrnunities and natural habitats on the Easement Area. Grantee agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantee or others shall be reported to Grantor. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by Grantor or others shall be reported to Grantee. (d) Management of Exotics and Invasive Species.. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Easement Area, Grantee will consult with Grantor prior to implementing control activities.. 5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Easement is not intended to impose any legal or other responsibility on the Grantor, or in any way to affect airy existing obligation of the Grantor as owner of the Property. Arnong other things, this shall apply to: (a) Upkeep and Maintenance -The granting of this Conservation Easement shall not in and of itself be construed to create or impose upon the Grantor any obligation D~~aft 23 for the upkeep or maintenance of the Easement Area except to the extent elsewhere required by this Conservation Easement. 6. ACCESS. No right of access by the general public to any portion of the Easement Area is conveyed by this Conservation Easement.. The parties hereby acknowledge that the Grantor intends to make the Property open and available to the public for certain low-impact recreational use as expressly permitted in this Conservation Easement. 7. ENFORCEMENT, The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Easement, (a) With reasonable notice the Grantee may enter the Easemeit Area for the purpose of inspecting for violations, If the Grantee finds a violation, it may, in its discretion, take appropriate legal action. Except when an ongoing or imminent violation could substantially diminish or impair the conservation values of this Conservation Easement, the Grantee shall give the Grantor written notice of the violation and thirty (.30) days to correct it (or begin good faith efforts to correct in the event the violation is something which cannot be reasonably corrected in thirty (30) days) before filing any legal action, Grantee has the right to enforce the terms of this Conservation Easement by civil action, including the remedy of injunction, mandatory and prohibitory, The failure of the Grantee to discover a violation or to take immediate legal action shall not bar' it from doing so at a later time. (b) Grantee shall not bring airy action against Grantor for any injury or change to the Easement Area resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm and naturally caused earth movement, or from any prudent action taken in good faith by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to the Easement Area or harm to the Easement Area resulting from such action. 8. TRANSFER OF EASEMENT.. The parties recognize and agree that the benefits of this easement are in gross and assignable, The Grantee shall have the right to transfer or assign this Conservation Easement to any qualified organization that, at the time of transfer, is a "qualified organization" under Section 170(h) of the U,S. Internal Revenue Code and provided the organization expressly agrees to assume the responsibility imposed on the Grantee by this Conservation Easement. If the Grantee ever ceases to exist or no longer qualifies under Sec. 170(h) or applicable state law, a court with jurisdiction is hereby authorized to transfer this easement to another qualified organization having similar purposes that agrees to assume the responsibility. 9. TRANSFER OF EASEMENT AREA, Grantor shall notify Grantee, in writing, at least thirty (30) days prior to any conveyance by Grantor of the Easement Area or any interest in the Easement Area, and the document of conveyance shall expressly refer to this Conservation Draft 24 Easement and, by its terms, the conveyance shall be made subject to and subordinate to this Conservation Easement, 10. AMENDMENT OF EASEMENT. This easement maybe amended only with the written consent of Grantor and Grantee. Any such amendment shall be consistent with the purposes of this Conservation Easement and shall comply with Sec, 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section, Any such amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N.C. Gen, Stat, § 121-34 et seq., or any regulations promulgated pursuant to that law, The Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Easement, 1 L TERMINATION OF EASEMENT. If it is determined by a court with ,jurisdiction that conditions on or surrounding the Easement Area have changed so much that it is impossible to fulfill the conservation purposes set forth above, a court with jurisdiction may, at the,joint request of both the Grantor and Grantee, terminate this Conservation Easement. If condemnation of a part of the Easement Area or of the entire Easement Area by public authority renders it impossible to fulfill any of the conservation purposes of this Conservation Easement, this Conservation Easement maybe terminated by a court with jurisdiction, provided Grantee is a party to any action to terminate this Conservation Easement. At the time of the conveyance of this Conservation Easement to the Grantee, this Conservation Easement gives rise to a real easement right, immediately vested in the Grantee. If the easement is terminated and the Easement Area is sold or taken for public use, then, as required by Sec. 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of the gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to the Grantor), equal to the ratio of the appraised value of this easement to the unrestricted fair market value of the Easement Area, as these values are determined on the date of this Conservation Easement. The Grantee shall use any such proceeds consistently with the general conservation purposes of this Conservation Easement. 12, INTERPRETATION. This Conservation Easement shall be interpreted under the laws ofNorth Carolina, resolving any ambiguities and questions of the validity of specific provisions as to give maximum effect to its conservation purposes. 1.3. GRANTOR'S TITLE WARRANTY. The Grantor warrants that it is the sole owner of and is seized of the Easement Area in fee simple and has good right to grant and convey this Conservation Easement; that the Easement Area is free and clear of any mortgages or other encumbrances not subordinated to this Conservation Easement, and that the Grantee shall have Draft 25 the use of and enjoy all the benefits derived from and arising out of this Conservation Easement, except for the following: (a) all enforceable easements and rights of way currently depicted in the Orange County Registry; and (b) Public Road rights of way affecting the Property; and (c) Riparian rights affecting the Property; and (d) The lien on the Property securing a $600,000.00 private placement financing of the purchase of the Property in an amount not exceeding $600,000.00. (e) A conservation easement granted to the State of North Carolina in consideration of the receipt by Grantor of a Clean Water grant from the State of North Carolina. 14. NOTICES. Any notices required by this Conservation Easement shall be in writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address. To the Grantor: To the Grantee: Town Manager Orange County Environment and Town of Carrboro Resource Conservation Department 301 W. Main Street Orange County, North Carolina Carrboro, NC 27510 P.O, Box 8181 Hillsborough, NC 27278 15. ENVIRONMENTAL CONDITION. The Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Easement Area, as such substances and wastes are defined by applicable federal and state law, and hereby promises to defend and indemnify Grantee against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with any release of hazardous waste caused by the intentional or negligent act of the Grantor or violation of federal, state or local environmental laws. Without limiting the generality of the foregoing, nothing in this Easement shall be construed as giving rise to any right or ability in Grantee, nor shall Grantee have any right or ability, to exercise physical or managerial control over the day-to-day operations of the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Envirorunental Response, Compensation and Liability Act of 1980, as amended, Draft 26 16. SEVERABILITY. The Easement created by this Deed shall be a servitude rumring with the land in perpetuity. Every provision of this Deed that applies to the Grantor or the Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns, and all other successors as their interests may appear.. Invalidity of any of the covenants, terms or conditions of this Easement, or any part thereof by court order or judgment shall in no way, affect the validity of any of the other provisions hereof which shall remain in full force and effect.. 17, PARTIES. Every provision of this Conservation Easement that applies to the Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear. This Conservation Easement shall not be construed to benefit or to create any rights in any third parties, including but not limited to the general public. 18. RE-RECORDING. If necessazy to and in order to ensure the perpetual enforceability of this Conservation Easement, the Grantee is authorized to re-record this instrument or any other appropriate notice or instrument. 19. MERGER, The parties agree that the terms of this Conservation Easement shall survive any merger of the fee and easement interest in the Easement Area. 20. SUBSEQUENT LIENS ON EASEMENT AREA. No provisions of this Conservation Easement should be construed as impairing the ability of Grantor to use the Easement Area as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing is made subordinate to this Conservation Easement, 21, EXHIBITS AND DOCUMENTATION.. (a) Legal Descriution. Exhibit A, Legal Description of the protected Property is attached hereto and made a part hereofby reference. (b) Documentation Report, The parties acknowledge that the Orange County GIS map and sketch of the Easement Area, Exhibit B hereto, accurately establishes the uses, permitted improvements, conservation values and condition of the Easement Area as of the date hereof 22. ENTIRE AGREEMENT. This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings or agreements relating to the Conservation Easement. If any provision is found to be invalid, the remainder of the provisions of this Conservation Easement, D~~aft 27 and the application of such provision to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby. 23. ACCEPTANCE AND EFFECTIVE DATE.. As attested by the Clerk of the Grantee and the signature of its authorized representative affixed hereto, the Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Conservation Easement. This Conservation Easement is to be effective the date recorded in the Grange County Registry of Deeds. 24, ATTORNEY'S FEES.. In connection with any litigation arising out of this Conservation Easement the prevailing party shall be entitled to recover from the other party all costs incurred by it, including reasonable attorneys' fees, which shall include costs and attorneys' fees on appeal, TO HAVE AND TO HOLD, this Grant of Conservation Easement unto the said Grantee, its successors and assigns, forever. IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands on the date first written above. GRANTOR: TOWN OF CARRBORO, NORTH CAROLINA By: Accepted: ATTEST: Michael Nelson, Mayor GRANTEE: ORANGE COUNTY, NORTH CAROLINA Barry.Tacobs, Chair Orange County Board of Commissioners By: Donna S. Baker, Clerk to the Board of Commissioners Draft 28 Acknowledgments STATE OF NORTH CAROLINA COUNTY OF ORANGE I, , a Notary Public in and for said County and State do hereby certify that personally appeared before me this day and duly acknowledged the execution of the foregone Conservation Easement. WITNESS my hand and notarial seal, this day of , 200_. (Seal) Notary Public My commission expires: (Notary Seal) STATE OF 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 flee act of said County, the foregoing instrument was signed in its name by the Chair of said Board of Conunissioners and attested by her as Clerk to said Board of Commissioners. Wihress my hand azid official stamp or seal, this the day of , 200_. Notary Public My commission expires: Draft 29 Exhibit A PROPERTY DESCRII'TION Lying and being in Orange County, North Carolina, and being particularly described as consisting of approximately 27 acres of land, located in Chapel Hill Township, Orange County, North Carolina and identified as on the plat of property dated titled " ," prepared by ,Professional Land Surveyor, which plat is recorded at Plat Book , Page ,Orange County Registry (PIN 9779-80-1616). The property includes the improvements that are described in Exhibit B, attached hereto and incorporated herein, D~~¢ft 30 Exhibit B GIS MAP AND SKETCH OF THE EASEMENT AREA isg:orangecount}Mdams C6 (6-14-04 dra(t) clean doc