HomeMy WebLinkAboutAgenda - 06-07-2005-9aORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 7, 2005
Action Agenda
Item No. ~ a
SUBJECT: Approval of Contract to Purchase Real Property -Duke University
DEPARTMENT: Environment and Resource
Conservation
PUBLIC HEARING: (Y/N) No
ATTACHMENT(S):
1) Location Map
2) Proposed Offer to Purchase and Contract
3) Draft Letter Agreement
INFORMATION CONTACT:
David Stancil, 245-2590
Geoff Gledhill, 732-2196
Rich Shaw, 245-2591
TELEPHONE NUMBERS:
Hillsborough 732-8181
Chapel Hill 968-4501
Durham 688-7331
Mebane 336-227-2031
PURPOSE: To consider approval of a contract to purchase 8 acres of land located at the
intersection of Erwin and Pickett Roads from Duke University for the future New Hope Creek
Preserve.
BACKGROUND: In 1992, Orange County, Chapel Hill, Durham County and the City of
Durham adopted the New Hope Corridor Master Plan, which called far preservation of lands
along the New Hope Creek corridor, as it traverses southeastward from central Orange
County to Jordan Lake. Mast of New Hope Creek within Orange County lies within Duke
Forest, but the stream segment from Erwin Road to the Durham County line is outside of the
forest and privately owned. These lands were identified in 1992 as an area for the focus of
preservation efforts, along with lands an the Durham County side of the line, The Triangle
Land Conservancy (TLC), in partnership with the different jurisdictions, has been involved in
the project since its inception.
Most of the creek in Durham County was acquired or otherwise protected from 1992-2004,
Recent activities to protect the stretch of the creek in Orange County date back to 2001 and
the initial years of the Lands Legacy Program. In conjunction with TLC, a conservation
easement was conveyed to Orange County in 2002 on the old Hollow Rock store site (now
owned by Jeff Fisher), and TLC purchased an adjoining two acres of land.
The 1992 New Hope Plan envisioned a future trail access point, or trailhead, to be located in
this vicinity of the TLC parcel and an 8-acre triangular shaped portion of land owned by Duke
on the west side of Pickett Road, often referred to as the "Hollow Rock Trailhead". Since
2
1987, this 8-acre triangle -along with lands east of Pickett Road -remained in Duke
ownership, although no longer a part of the Duke Forest. In the 2004-2006 Lands Legacy
Action Plan, one identified priority was to continue to work with TLC and Duke on the
acquisitions of lands along this section of the New Hope corridor.
In the summer of 2004, toward this end, Orange County contacted Duke regarding the
potential interest in selling the 8 acres west of Pickett Road as called for in the New Hape
Plan, Shortly thereafter, the proposed Erwin Trace project planned for the Duke land east of
Pickett Raad became the source of considerable discussion, delaying but not altering the
proposal to acquire the 8-acre "Hallow Rack Trailhead" land, An appraisal was conducted in
early 2005 to assess the value of the land, A contract to purchase the property was
prepared in the spring of 2005 and transmitted to Duke,
In April, Duke notified the County of acceptance of the contract to purchase the 8-acre
property, at the appraised value of $72,000 ($9,000 per acre), Duke has two conditions of
interest, which are incorporated into the attached Letter Agreement, Those are:
1. Representatives from Duke University would be involved in the design process far the
Hollow Rack Trailhead and the larger New Hope Creek Preserve; and
2. There would be no public access to the property until such time as the planned New
Hope Trail connecting the property southwards to the Durham County line, or some
other mutually-agreeable subset of the trail network, is constructed.
Duke has reviewed the proposed language and Letter Agreement and is in agreement with
the terms. If acquired, the praperty would be placed in the Lands Legacy Program and
would be part of a future New Hope Preserve slang with other adjoining lands, to link the
Duke Forest and open space lands in Orange and Durham counties that connect to Jordan
Lake. A future trail connection is planned to run south into Durham County and connect with
trails in that jurisdiction. The design far this trail has not yet been undertaken by the partner
jurisdictions and TLC,
FINANCIAL IMPACT: The cost of purchase of the 8 acres is $72,000, with additional
transaction casts of approximately $5,000. Funding far the acquisition would come from the
2001 Parks and Open Space Bond, Lands Legacy portion ($1,477,000 currently available).
RECOMMENDATION(S): The Manager recommends that the Board:
• Approve the purchase of approximately 8 acres of land located on Erwin Road from Duke
University; and
• Authorize the Chair to sign (1) the contract an behalf of the County, subject to final review
by staff and county attorney and (2) the Letter Agreement regarding the conditions of
interest described above; and
• Instruct the County Attorney and staffs from ERCD and Finance to schedule and
complete a closing on the praperty expected to occur on or before July 31, 2005.
0
~ LdcA•rroz.l MAP
,' ~ F
~u~~
~O2E~
~.
~=
~ .~-,
~~~%~ ''GW r~ Subject
:~
4
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 , 2005 by and between DUKE UNIVERSITY, a North
Carolina corporation, having an address of 402 Oregon Street, Durham, North Carolina
27705, hereafter called "Seller", and ORANGE COUNTY, NORTH CAROLINA, a body
politic and corporate, a political subdivision of the State of North Carolina, having an address
of P.O. Box 8181, Hillsborough, North Carolina 27278, hereafter called "Buyer";
WITNESSETH:
Buyer hereby offers to purchase and Seller, upon acceptance of said offer, agrees to sell
and convey, all of that plot, piece or parcel of real property located in Orange County, North
Carolina, which said real property is hereinafter referred to as "the Property" and is more
particularly described as follows:
The approximately 8 acres of land and any improvements thereon, which
land is illustrated on the GIS map that is Exhibit A hereto. The Property is
5
identified as a part of Orange County P.I.N. 9891-41-6408, Orange County tax
map 7.16A...3A.
THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE AS FOLLOWS:
1. PURCHASE PRICE: The purchase price for the Property shall be SEVENTY
TWO THOUSAND AND 00/100 DOLLARS ($72,000). The purchase price shall be paid by
payment in cash at the closing.
2, TITLE: Title will be delivered to Buyer at closing by a Special Warranty Deed
from Duke University, 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 i ntended use of the Property, which exceptions must be approved in
writing by Buyer ("Permitted Exceptions "). The Property description in the deed shall
conform to the survey of the Property to be prepared as prescribed in paragraph 4(a) of this
Agreement.
3. 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 indefensible
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.
6
(b) Leases. There are no leases, licenses, or other agreements granting any person
or persons the right to use or occupy the Property or any portion thereof except as described in
paragraph 3(d) of this Agreement,
(c) Options. Seller has not granted any options nor is Seller committed nor
obligated in any manner whatsoever to sell the Property or any portion thereof to any party
other than Buyer.
(d) Construction Liens.. To the extent any improvements have been made or will be
made to the Property prior to the Closing Date that might form the basis of mechanics' or
materialmen's liens, 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) Environmental.
(I) 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 Ph ase I"), at Buyer's expense..
(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
(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 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 use in connection therewith.
(3) Seller's obligati ons under this Section shall survive the closing and
continue in full effect notwithstanding receipt of the purchase price.
(f) 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.:
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) Buyer shall pay for a survey of the Property and all other closing costs.
8
5. 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) 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, tide
insurance policies, attorneys opinions on title, surveys, covenants, deeds, notes, and deeds of
trust and easements relating to the Property.
(c) Any and all deeds of trust, liens or other charges against the Property not
assumed by Buyer must be paid and cancelled by Seller prior to or at closing..
(d) A condition precedent to Buyer's 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.
9
(b) This Agreement shall be governed by and construed in accordance with the laws
of the State of North Carolina, without, however, giving effect to any principle of conflicts of
law,
(c) The captions in this Agreement are inserted for convenience of reference only
and in no way define, describe or limit the scope or intent of this Agreement or any of the
provisions hereof..
(d) Any provision herein contained which by its nature and effect is required to be
observed, kept or performed after the Closing Date, shall survive the closing and remain
binding upon and for the benefit of the parties hereto, their heirs, personal representatives,
successors or assigns, until fully observed, kept or performed.
(e) This Agreement shall be binding and shall inure to the benefit of the parties
hereto and their respective beneficiaries, heirs, personal representatives,successors and
permitted assigns,
(f) As used in this Agreement, the masculine shall include the feminine and neuter,
and vice versa; the singular shall include the plural and the plural shall include the singular, as
the context may require.
(g) Any provision contained in this agreement which by its nature and effect, if
required to be observed, kept or performed after closing shall survive the closing and shall
remain binding upon and for the benefit of the parties hereto until fully observed, kept or
performed,
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 Tuly
31, 2005 in Hillsborough, North Carolina ("Closing Date"),
io
8. POSSESSION: Possession of the Property shall be delivered at closing.
9. Buyer agrees to cooperate with the Seller if the Seller attempts to effectuate a
1031 tax free exchange on the sale of the Property.. The Seller making use of the 1031
exchange shall pay any and all costs and expenses associated therewith including any incurred
by Buyer in its cooperation.
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:
DUKE UNIVERSITY
By:
Tallman Trask
Executive Vice President
BUYER:
ORANGE COUNTY, NORTH CAROLINA
By:
Moses Carey, Jr,, Chair
Orange County Board of Commissioners
ATTEST:
Donna S. Baker, Clerk
to the Board of Commissioners
11
Acknowledgements
NORTH CAROLINA
DURHAM COUNTY
I, , a Notary Public of Durham County, North Carolina,
certify that Tallman Trask personally appeared before me this day and acknowledged that he is
Executive Vice President of Duke University, a corporation, and that by authority duly given
and as the act of the corporation, the foregoing instrument was signed in its name by him as
Executive Vice President..
Witness my hand and official stamp or seal, this the _ day of , 2005.
Notary Public
My commission expires:
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 , 2005,
Notary Public
My commission expires:
res:Duke contract (k3 Glenn) doc
12
Draft Letter Agreement regarding future use of 8-acre Duke property
[BOCC Letterhead]
June 8, 2005
Mr. Tallman Trask III
Office of the Executive Vice President
Duke University
Box 90027
Durham, NC 27708-0027
Dear Mr. Trask:
On behalf of the Orange County Board of Commissioners, I want to thank you for Duke
University's in terest in working with Orange County to protect another important parcel
of land for conservation purposes. It is the intention of Orange County to acquire eight
acres of Duke property located at the southwest corner of Erwin and Pickett roads for a
potential future Hollow Rock Access Area. The protection of this land was envisioned by
the New Hope Corridor Open Space Master Plan, and will be a cornerstone to a larger area
of protected open space and wildlife habitat within the New Hope Creek corridor..
The future use of this property will be addressed through a design process for the larger
"New Hope Preserve," in which we will welcome Duke University's active participatio n.
It is also understood that there will be no public access to the property until such time as
the planned New Hope Trail connecting the property southwards to the Durham County
open space network, or some other mutually-agreeable subset of the trail network, is
constructed.
We consider the conveyance of this land to be another fine example of Duke University's
conunitment to the conservation of significant forestland and natural areas in Orange County.
Thank you for your leadership in the protection of our common natural heritage.
Sincerely,
Moses Carey Jr., Chair
Orange County Board of Commissioners