HomeMy WebLinkAboutAgenda - 05-15-2001-7aORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: May 15; 2001
Action Agenda
Item No. _ r] - Q
SUBJECT: Public Hearing on Installment Contract to Purchase Land -Seven-Mile Creek
Preserve Ma es' Hill, Ltd.
DEPARTMENT: ERCD PUBLIC HEARING: (Y/N) Yes
ATTACHMENT(S): INFORMATION CONTACT:
Property Map David Stancil, 245-2590
Resolution of Purchase Rich Shaw, 245-2591
Offer to Purchase and Contract TELEPHONE NUMBERS: _
Installment Purchase Promissory Note Hillsborough 732-8181
Installment Purchase Deed of Trust Chapel Hill. 968501
Durham fi88-7331
Mebane 336-227-2031
PURPOSE: To hold a public hearing on a resolution authorizing the installment purchase of
two tracts of land (total 131 acres) east of Mt. Willing Road for addition to the Seven-Mile Creek
Preserve. The public hearing is required for any acquisitions of property via an installment
purchase (consistent with the provisions of NCGS 160A-20).
BACKGROUND: In the 1970's, the County purchased 160 acres of land in the Seven-Mile
Creek basin southwest of Hillsborough for watershed protection purposes. The Seven-Mile
Creek area contains two of the County's most significant Natural Heritage sites, and remains a
largely undeveloped sub-basin with substantial areas of wildlife refuge. Because of this
ecological significance, and the notation on the Master Recreation and Parks Element of the
Plan for a district park in this area, the creation of a Seven-Mile Creek Preserve was identified
as a Lands Legacy program priority.
In the summer of 2000, ERCD staff was approached by the owner of lands in the area about
the County's interest in acquiring lands that would soon go on the market. Negotiations and
discussions regarding potential acquisitions began in the fall of last year.
On March 7'", ERCD sent Mayes' Hill, Ltd. an initial draft offer to purchase the property.
Following negotiations on contract terms and conditions, the owners have agreed to sell a
portion of the lands to Orange County. The proposed use is for the future Seven-Mile Creek
county nature preserve that is expected to feature low=impact recreational uses, such as nature
trails and picnic areas. The possibility also exists for having some future primitive camping
areas, meeting needs for low-impact recreation consistent with the Cheeks District Park shown
on the 1988 Master Parks Plan.
The County would pay the owners $538,740 for the property ($4,100/acre), plus $54,234 in
interest payments over a 59-month or less period at an interest rate of 5%. A Phase I
environmental assessment will be conducted prior to closing. If approved, closing on the
property would occur on or before June 29, 2001.
Installment purchases by local governments require a public hearing prior to action on a
contract to purchase. Action on the contract may be taken immediately after close of the public
hearing.
FINANCIAL IMPACT: Funds to purchase this property would be withdrawn, over the five year
term, from the Subdivision Payment-in-Lieu fund (Cheeks District) in the amount of $260,000,
and the Lands Legacy Fund in the amount of $341,929. Upon BOCC approval of this
purchase, staff will present a corresponding budget amendment at the May 15 BOCC meeting:
Seven-Mile Creek Preserve (Mayes Hill) Acquisition
Land Acquisition Costs:
Land $538,740
Transaction Costs $9,000
Interest $54,234
TOTAL $601,974
RECOMMENDATION(S): The Manager recommends that the Board.
(1) conduct the public hearing;
(2) adopt the Resolution approving the Installment Purchase of approximately 131 acres of
land from Mayes' Hill Ltd. as described in the Resolution;
(3) Exempt this project from the requirements of G5 143, Article 3D as it pertains to the
selection of surveyors.
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Legend N
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® Orange County Land
f~ti~: Streams
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Mayes' Hill Property e••"' ' ~ Envinmment & Resource
Trail 1 (-~-22 Acres) a 4 Conservation Department
Tract 2 (109.4 Acres) May 9, 2001
Tatat --131 Acres ~~~ ~•~~' Beth Young
County of Orange, Cheeks Township
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RESOLUTYON
The Board of Commissioners for the County of Orange, North
Carolina, met in the F. Gordon Battle, Courtroom of the new
Orange County Courthouse, 106 E. Margaret Lane, Hillsborough; No
North Carolina at 7:30 P.M: on May 15, 2001.
Present:
Absent•
The Chair of the Board of Commissioners announced that this
was the hour, day and place fixed for the public hearing for the
purpose of considering whether the Board of Commissioners should
approve a proposed Installment Purchase Promissory Note and
Installment Purchase Deed of Trust (hereafter collectively "the
financing agreements") under which the County would obtain
financing for the purchase of approximately 131 acres of land
(hereafter "the Property") located in central Orange County,
adjacent to Mount Willing Road and other properties owned by the
County, for the purposes of conserving so much of the. property
purchased as is deemed appropriate by the County to protect
portions of the Seven-Mile Creek watershed toward a _"Seven-Mile
Creek Nature Preserve" and using the balance of the property for
other governmental purposes, as described in the notice of such
public hearing which was published in The Chapel Hill Herald on
May 5, 2001 and The Ne s of Oran e Count on May 9, 2001, and
under which the County would secure the repayment. by it of
moneys borrowed by granting a security interest in the property
purchased.
The Property and the use of the Property were then
described by the Director of the Orange County Environment and
Resource Conservation Department. The County Attorney presented
and. described the financing agreements between Orange County and
the owners of the property, Mayes' Hi11 Ltd., which agreements
describe the provisions of .the proposed installment purchase.
The Chair of the Board of Commissioners then announced that
the Board of Commissioners would immediately hear anyone who
might wish to be heard on this matter.
appeared, either in person or by
attorney, to be heard on such matter:
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Thereupon, the Board of Commissioners determined to proceed
with the proposed financing and to approve the financing
agreements.
Thereupon the Chair of the Board of Commissioners announced
that the public hearing was closed.
Thereupon, Commissioner introduced the
following resolution, a copy of which had been provided to each
Commissioner and which was read by title:
RESOLUTION APPROVING AGREEMENTS BETWEEN ORANGE COUNTY
AND MAYES' HILL LTD. CONCERNING THE INSTALLMENT
PURCHASE BY THE COUNTY OF ALL OF ONE TRACT AND A
PORTION OF SECOND TRACT OF LAND TOTALLING
APPROXIMATELY 131 ACRES DESCRIBED HEREIN, APPROVING
CERTAIN OTHER ACTIONS RELATING THERETO AND AUTHORIZING
CERTAIN ACTIONS IN CONNECTION THEREWITH
WHEREAS, the County of Orange, North Carolina, a political
subdivision of the State of North Carolina (the "County"), has
previously approved the acquisition of the Property; and
WHEREAS, the County is authorized to finance the
acquisition of the Property by a contract or contracts that
create in the Property a security inter-est to secure repayment
of moneys made available for such purpose; and
WHEREAS, the County has determined to proceed with the
proposed financing of the purchase of the Property and to
approve agreements providing for the installment payment with
respect thereto; and
WHEREAS, there have been presented for consideration by the
County copies of the fallowing documents relating to this
matter:
(a) a draft of the Offer to Purchase and Contract wherein
the County offers to purchase the Property; and
(b) a draft of an Installment Purchase Promissory Note
under which Mayes' Hill Ltd. would "advance" funds for the
acquisition of the Property and the County would be obligated to
make installment payments (as defined therein); and
(c) a draft of an Installment Purchase Deed of Trust which
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the County would execute and deliver to a trustee for the
benefit of Mayes' Hill Ltd. and which would encumber the
Property as security for ,the County's obligation to repay the
funds advanced to it pursuant to the Installment Purchase
Promissory Note; and -
BE IT RESOLVED by the.Board of Commissioners for the County
of Orange:
Section 1. The Board of Commissioners for the County of
Orange,. North Carolina (the "Board of .Commissioners") hereby
finds and determines in connection with the proposed Installment
Purchase that (a) the proposed Installment Purchase Promissory
Note is necessary or expedient for the County, (b) the proposed
Installment Purchase Promissory Note, under current.
circumstances, is preferable to a bond issue of the County for
financing the acquisition of the purchase of the Property, (c)
the sums to fall due under the proposed Installment Purchase
Promissory Note are adequate and not excessive for its proposed
purpose, (d) the County's debt management procedures and
policies are good and its debt will continue to be managed in
strict compliance with law, (e) although, the taxing power of the
County is not and may not be pledged direct°ly or indirectly to
secure any sums to fall due under the proposed Installment
Purchase Promissory Note, the proceeds of taxes might be used to
meet the sums to fall ,due under the proposed Installment
Purchase. Promissory Note and any increase in taxes necessary to
meet such sums will not be excessive and (f) the County is not
in default regarding any of its debt, service obligations.
Section 2. The Board of Commissioners hereby further finds
and determines that it is in the best interest of the County to
enter into the installment Purchase Promissory Note, and the
Installment Purchase Deed of Trust in order to execute the plan
for the acquisition of the Property and the financing thereof as
described above.
Section 3. The terms and provisions of the Offer to
Purchase and Contract, the Installment Purchase Promissory .Note,
and the Installment Purchase Deed of Trust, 'are hereby approved
in all respects and the Chair of the Board of Commissioners, the
County Manager of the County, the Finance Director of the County
and the Clerk to the Board of Commissioners are hereby
authorized and directed to execute and deliver documents, as may
be applicable, in substantially the forms presented to the
County, together with such additions, changes, modifications and
deletions as they, with, the advice of counsel, may deem
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necessary and appropriate, and such execution and delivery shall
be conclusive evidence of the approval and authorization thereof
by the Board of Commissioners and the County; provided, however,
that the County Manager or the Finance Director of the County or
his respective designee shall determine that the provisions of
the Installment Purchase Promissory Note and the Installment
Purchase Deed of Trust are consistent with the provisions of the
Offer to Purchase Agreement except as those agreements may vary
the terms of the Offer to Purchase Agreement; and that, under
the Installment Purchase Promissory Note the final installment
payment is due not later than June 1, 2006, the fixed interest
rate with respect to the Installment Payments is 5.00 per annum
and the aggregate amount of the principal components of the
Installment Payments does not exceed-$430,992, with a payment at
the closing of $107,748 for a total purchase price of $538,740.
Section 4. The Board of Commissioners hereby approves,
ratifies and confirms the actions of the County Manager, the
Finance Director and the County Attorney of the County in
connection with this matter.
Section 5. The officers and employees of the County are
authorized and directed (without limitation except as may be
expressly set forth herein) to take such other actions and to
execute and deliver such other documents, certificates,
undertakings, agreements or other instruments as they, with the
advice of counsel, may deem necessary or appropriate to
effectuate the transactions contemplated by the agreements
recited herein.
Section 6. This resolution shall take effect .immediately
upon its passage.
Upon motion duly made and seconded, the foregoing
resolution was passed by the following votes:
Ayes: 'Commissioners
Noes:
I, Beverly A. Blythe, Clerk to the Board of Commissioners
for the County of ,Orange, North Carolina, DO HEREBY CERTIFY that
the foregoing has been carefully copied from the recorded
minutes of the Board of Commissioners far said County at a
regular meeting of said Board held on May 15, 2001, said record
having been made in Minute Book No. of the minutes of said
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Board, and is a true copy of so much of said proceedings of said
Board as relates in any way to the matters described in said
proceedings.
~ DO HEREBY FURTHER CERTIFY that` a schedule of regular
meetings of said Board, in the form attached hereto, has been on -
file in my office as of a date not less than seven days before
the date of said muting in accordance with G.S. § x.43-318.12.
WITNESS my hand and the corporate seal of said County, this
the of 2001.
Beverly A. Blythe
Clerk to the Board of Commissioners.
1sg:orangecounty\mayeshill.dac
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Prepared by: Geoffrey E. Gledhill
Return to: Geoffrey E. Gledhill, 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 2001 by and between
MAYES' HILL LTD., a North Carolina limited partnership, having
an address of 300 C. C. Hayes Road, Purlear, North Carolina
28665, hereafter called "Seller", and the COUNTY OF ORANGE,
NORTH CAROLINA, a body politic and corporate, a political
subdivision of the State of North Carolina, having an address of
P.O. Box $181, Hillsborough, North Carolina 2727$, 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 more particularly
described as follows:
The 109.4--acre tract
on the plat of
prepared by ,
recoxded at Plat Book ,
Registry. The Property is
of land
property
R.L.S.,
Page _
further
1
identified as
titled "
which plat is
Orange County
identified as Orange
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County P.I.N. 9854-30=5558 and has an Orange County
tax map reference of 3.50..7; and
The 22-acre portion of the 64.31-=acre tract of
land identified as on the~plat of property
titled " ," prepared by R.L.S.,
which plat is recorded at Plat Book _, Page _,
Orange County Registry. The Property is ,further
identified as Orange County P.I.N.~9844-91-1497 and
has an Orange County tax map .reference of 3.45..14.
THE TERMS AND CONDITIaNS OF THIS AGREEMENT ARE AS FOLLOWS:
1.. PURCHASE PRICE: The purchase price for the Property
shall be FIVE HUNDRED THIRTY-EIGHT THOUSAND SEVEN HUNDRED FORTY
AND 00/100 DOLLARS ($538,740). The purchase price shall be paid
by payment in cash at the closing of $107,745 and the execution
of a promissory note secured by a first lien deed of trust on
the Property which promissory note will provide for the payment
of the balance of the purchase price in 20 quarterly
installments. The first installment of principal and interest
will be due on September 1, 2001. The subsequent installments of
principal and interest will be due on a quarterly basis as shown
on the amortization schedule attached hereto as Exhibit C.
Installment payments shall include interest on the unpaid
balance at the rate of 5.0~ per annum, per Exhibit C. Neither
the promissory note nor the deed of trust. will prohibit or
provide a penalty for prepayment of any amount of the unpaid
principal balance. The promissory note and deed of trust will be
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in substantially the form of Exhibits A and B hereto
respectively.
2. TITLE: Title will be delivered :to Buyer at closing by
a General Warranty Deed made to the County of Orange, 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, and those exceptions approved in writing by Buyer
("Permitted Exceptions").
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
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agreements granting any person or persons the right to use or
occupy the Property or any portion thereof.
(c) Ootions. Seller has not granted any ,options nor
committed nor obligated themselves•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 improvement s
have been made or will be made to the Property prior to the
Closing Date that might foi~n the basis of mechanics' or
materialmen's liens, Seller, 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 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) Inspections and Environmental.
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(1) Seller has no knowledge of any underground
storage tanks being located on the Property. Buyer agrees to
perform a Phase T 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 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.
(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 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
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or toxic substances, or (C) that any manufacturing, landfilling
or chemical production has occurred on the Property.
(ii) 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. 96-5],0, 94 Stat. 2'767, 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 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 shall indemnify and hold Buyer and the
Deed of Trust Trustee harmless from and against (i) any and all
damages, penalties, fines, claims, liens, suits, liabilities,
casts (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 and/or the Deed of Trust Trustee as a direct or
indirect result of any warranty or representation made by Seller
in subsection (f) herein being false or untrue in any material
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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 by Buyer or
Seller or any transferee or assignee of Buyer, the Deed of Trust
Trustee or Seller.
(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: (i)
any such material or substance located on the Property be
removed, (ii) other found contaminants be removed from the
Property, (iii) that a copy of a certificate demonstrating
removal and clean-up be provided to Orange County, c/o Pamela
Janes, Director of Purchasing and Central Services, 132 E. King
Street, Hillsborough, North Carolina 27278, as soon as the
certificate is available and (iv) that the original of the
certificate be provided to Buyer at the closing.
(5) Seller's obligations under this subsection (f)
shall continue in full effect notwithstanding receipt of the
Required Payments or foreclosure under the deed of trust or
delivery of a deed in lieu of foreclosure.
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(g) Representations_l_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 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) Ad valorem taxes on the Property, if any, shall be
prorated on a calendar year basis to the date of closing. Seller
shall pay any Orange County ad valorem taxes on personal
property of Sellers for the entire year of the closing. Seller
shall pay all deferred taxes and any tax penalties including
late listing penalties.
(d) Buyer shall pay for the entire cost of the survey of
the Property and all other c~.osing costs other than those
associated with environmental cleanup, if necessary, as provided
in paragraph 3(f).
5. CONDITIONS•
(a) Buyer's obligation to purchase the Property as
provided in this Offer to Purchase and Contract is at all times
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and in all respects subject to approval by the Orange County
Board of Commissioners as to the installment payment terms and
is not a final offer until the Orange County Board of
Commissioners approves the installment payment terms following a
public hearing as by law provided.
(b) 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.
(c) On request of Buyer, Seller agrees to exercise
Seller's best efforts to deliver 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.
(d) 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.
6. N!I CELLANEOIIS 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,
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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 contained in this Agreement 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 far 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.
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(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.
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 June 29, 2001
in Hillsborough, North Carolina ("closing Date").
8. POSSESSION: Possession of the Property shall be
delivered at closing.
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:
MAYES' HILL LTD.
Byc
Elizabeth C. Mayes,
Individually and as
General Partner of
MAYES' HILL LTD.
By:
liewey ~. Mayes, Attorney
in Fact far Elizabeth C.
Mayes
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20'
BUYER:
ORANGE, COUNTY, NORTH CAROLINA
By:
Stephen H. Halkiotis, Chair
Orange County Board of
Commissioners
ATTEST:
Beverly A. Blythe, Clerk
to the Board of Commissioners
NORTH CAROLINA
COUNTY
I, a Notary Public of County
and the aforesaid State, certify that
personally came before me this day and duly sworn acknowledged
that they executed the forgoing instrument for the purposes
contained within.
Witness my hand and official stamp or seal, this the
day o f 2 0 0
Notary Public
My commission expires:
NORTH CAROLINA
COUNTY
I, a Notary Public for said County and
State, do hereby certify that Dewey S: Mayes, attorney in fact
for Elizabeth C. Mayes, personally appeared before me this day,
and being by me duly sworn, says that he executed the foregoing
and annexed instrument for and in behalf of the said Elizabeth
C. Mayes, and that his authority to execute and ackno~rledge said
instrument is contained in an instrument duly executed,
acknowledged, and recorded in the office of in
the County of , State of on
the day of 19 and that this instrument was
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executed under and by virtue of the authority given by said
instrument granting him power of attorney.
I do further certify that the said Dewey S. Mayes
acknowledged the due execution of the foregoing and annexed
instrument for the purposes therein expressed for and in behalf
of the said Elizabeth C. Mayes.
Witness my hand and official stamp or seal, this the
day of 200
My commission expires:
NORTH CAROLINA
COUNTY OF ORANGE
Notary Public
I, a Notary Public of the County and State aforesaid,
certify that Beverly A. Blythe 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 said County, 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
My commission expires:
lag:ora~ecouncy\mayearontract(S-Oa-olvereibn).dpC
Notary Public
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Permitted Exceptions
1. Easements/Road Maintenance Agreement Recorded at Book
626, Page 48, Orange County Registry.
2.' Plat of survey entitled "Lot and Private Access
Easement" Recorded at Plat Book ~6, Page 139, Orange
County Registry
a~
Exhibit A
SATISFACTION: The debt evidenced by
this note has been satisfied in full
this day of 20
Signed:
INSTALLMENT PIIRCHASE PROMISSORY NOTE
Hillsborough, N.C.
2000
FOR VALUE RECEIVED the undersigned, Orange County, North
Carolina (the "County"), promises to pay to MAYES' HILL,
LIMITED, ar assigns of which the County has been notified, the
principal sum of $430,992, with interest from at
the rate of five per cent (5.0~) per annum on the unpaid balance
until paid, both principal and interest payable in lawful money
of the United States of America, by mailing said moneys to
MAYES' HILL, LIMITED, 300 C. C. Hayes .Road, Purlear, North
Carolina 28665 or at such place as the legal holder hereof may
designate in writing. The principal and interest shall be due
and payable in monthly installments pursuant to the attached
Amortization Schedule. -
This instrument has been preaudited in the manner required
by The Local Government Budget and Fiscal Control Act.
Dated: 20
Finance Director, Orange County
24
In the event of (a) default in payment of any installment
of principal or interest hereof as the same becomes due and such
default is not cured within 10 days after written notice to the
undersigned, or (b) default under the terms of any instrument
securing this Note, and such default is riot cured within 20 days
after written nota.ce to the unders~.gned, or (c) a -
Nonappropriation as described below then in any such event the
holder may without further notice, declare the remainder of the
principal sum, together with all interest accrued thereon at
once due and payable. Failure to exercise this option shall not
constitute a waiver of the right to exercise the same at any
other time.
This Note is to be governed and construed in accordance
with the laws of the State of North Carolina.
This Note
Carolina. General
of the purchase
Deed of Trust
property therein
is delivered under the authority of North
Statute Section 160A-20 as part of the payment
price for. real property, and is secured by a
of even date (the "Deed of Trust") to
Trustee, which is a lien upon the
described.
'The obligation of the County to make payments hereunder
shall not constitute a mandatory payment obligation of the
County in any ensuing fiscal year beyond the then current fiscal
year. This Note does not directly or indirectly or contingently
obligate the County to make any payments beyond those
appropriated in the sole discretion of the County for 'any fiscal
year. Tn the. event the governing board of the County determines
not to appropriate in its budget any amount to pay the sums due
hereunder in the fiscal year for which such budget applies, said
board shall adapt a resolution specifically deleting such
appropriation and stating the reasons therefor (any such
decision not to appropriate being herein called a
"Nonappropriation"). The County shall have the right, at any
time, to terminate its obligation to make payments hereunder by
permitting the occurrence of a Nonappropriation. In the event of
a Nonappropriation, the holder(s) of this Note shall have and
may exercise, to the extent permitted by law, any of the
remedies following a default hereunder or under the related Deed
of Trust .
NOTWITHSTANDING ANYTHING HEREIN OR IN THE DEED OF TRUST TO
THE CONTRARY, NO DEFICIENCY JUDGMENT.MAY BE RENDERED AGAINST THE
COUNTY IN ANY ACTION FOR' BREACH OF ANY OBLIGATION UNDER THIS
NOTE OR THE DEED OF TRUST, OR UPON A NONAPPROPRTATION, AND THE
a
TAXING POWER OF THE COUNTY IS NOT AND MAY NOT BE PLEDGED
DIRECTLY OR INDIRECTLY TO SECURE ANY MONEYS DUE UNDER THIS NOTE,
THE DEED OF TRUST OR THE COUNTY'S OBLIGATION TO PURCHASE REAL
PROPERTY IN CONNECTION WITH THIS TRANSACTION.
IN WITNESS WHEREOF, Orange County has duly caused this
instrument to be executed the day and year first above written.
ATTEST:
Clerk to the Board of
Commissioners of Orange
County
ORANGE COUNTY, NORTH CAROLINA
By:
Stephen H. Halkiotis, Chaar
Board of Commissioners
of Ordnge County
lsg:orangecounty\mayesnote.doc
26
Exhibit B
DRAWN BY AND RETURN TO:
Geoffrey E. Gledhill
P.O. Drawer 1529
Hillsborough, North Carolina 27278 "
STATE OF NORTH CAROLINA
COUNTY OF.ORANGE
INSTALLMENT PURCHASE DEED OF TRUST
THIS INSTALLMENT PURCHASE DEED OF TRUST (the "Deed of Trust")
made this day of 20 by and between ORANGE
COUNTY, NORTH CAROLINA, .whose address is Post Office Box 8181,
Hillsborough, North Carolina 27278 (hereinafter referred to as the
"Grantor"); whose address is
(hereinafter
referred to as the "Trustee); and MAYES' HILL LTD., whose address is
300 C. C. Hayes Road, Purlear, North Carolina 28655 (hereinafter
referred to as the "Beneficiary"). The designation Grantor, Trustee
and Beneficiary as used herein shall include said parties, their
heirs, successors, and assigns, and shall include singular, plural,
masculine, feminine or neuter as required by context.
W I T N E S S E T H:
WHEREAS, under the authority of North Carolina General Statute
Section 160A-20, the Grantor has delivered to the Trustee its
Installment Purchase Promissory Note of even date (the "Note") in
the principal sum of $430,992, the terms of which are. incorporated
herein by reference, as a part of the payment of the purchase price
for real property purchased from the Trustee. The final due date for
payment of the Note, if not sooner paid, is June 1, 2006.
NOW, THEREFORE, as security for the Grantor's obligation under
the Note and other valuable consideration, the receipt of which is.
hereby acknowledged, the Grantor has bargained, sold, given, granted
and conveyed and does by these presents bargain, sell, give, grant
and convey to said Trustee, his heirs, or successors, and assigns,
the. parcel(s) of land situated in Orange County, North Carolina,
(the "Premises") and more particularly described as follows:
The 109.4-acre tract of land identified as
on the plat of property titled ," prepared by
27
R.L.S., which plat is recorded at Plat Book
_, Page _, Orange County Registry. The Property is
further identified as Orange County P.T.N. 9854-30-5558
and has an Orange County tax map reference of 3.50..7; and
The 22-acre portion of the 54.31-acre tract of land
identified as on the plat of property titled
" ," prepared by R.L.S., which plat
is recorded at Plat Book Page Orange County
Registry. The Property is further. identified as Orange
County P.I.N. 984 491-1497 and has an Orange County tax
map reference of 3.45..14.
TO HAVE AND TO HOLD said Premises with all privileges and
appurtenances thereunto belonging to said Trustee, his heirs,
successors, and assigns forever, upon the trusts, terms_ and
conditions, and for. the uses hereinafter set forth.
If the Grantor shall pay the Note secured hereby in accordance
with its terms, together with interest thereon, and any renewals or
extensions thereof in whole or in part, all other sums secured
hereby and. shall comply with all of the covenants, terms and
conditions ~t~f this Deed of Trust, then this conveyance shall be null
and void and may be cancelled of record at the request and the
expense of the Grantor. If, however, there shall be (a) any default
in the payment of any sums due under the Note or this Deed of Trust
and such default is not cured within 10 days from the due date, or
(b) any default in any of the other covenants, terms or conditions
of the Note secured hereby, or any failure or neglect to comply with
the covenants, terms or conditions contained in this Deed of Trust
or any .other instrument securing the Note and such default is not
cured within 20 days after written notice, or (c) the occurrence of
a Nonappropriation as described in the Ndte, then and in any of such
events, without further notice, it shall be lawful for and the duty
of the Trustee, upon request of the Beneficiary, to sell the land
herein conveyed at public auction far cash, after having first given
such notice of hearing as to commencement of foreclosure proceedings
and obtained such findings or leave of court as may then be required
by law and after having first given such notice and having first
advertised the time and place of such sale in such manner as may
then be provided by law, and upon such and any resales and upon
compliance with the law then relating to foreclosure proceedings
under power of sale to convey title to the purchaser. in as full and
ample manner as the Trustee is empowered. The Trustee shall be
authorized to retain an attorney to represent him in such
zs
proceedings. Notice under the Note and this Deed of Trust shall be
effective upon deposit in the United States mail, postage prepaid,
addressed to the appropriate party or upon actual delivery.
The proceeds of the Sale .shall after the Trustee retains his
commission, together with reasonable attorneys' fees incurred by the
Trustee in such proceeding, be applied to the costs of sale,
including, but not limited to, costs of collection, taxes,
assessments, costs of recording, service fees and incidental
expenditures, the amount due' on the Note hereby secured and
advancements and other sums expended by the Beneficiary according to
the provisions hereof and otherwise as required by the then existing
law relating to foreclosures. The Trustee's commission shall. be five
percent (5~) of the gross proceeds of the sale or the minimum sum of
$300 whichever is greater, for a completed foreclosure. In the event
foreclosure is commenced, but not completed, the Grantor shall pay
all expenses incurred by Trustee, including reasonably attorneys'
fees, and a partial commission computed on five percent (5%) of the
outstanding indebtedness or the above stated minimum sum, whichever
is greater, in accordance with the following schedule,' to-wit: one-
fourth thereof before the Trustee issues a notice of hearing on the
right to foreclosure; one-half thereof after issuance of said
notice; three--fourths thereof after such hearing; and the greater of
the full commission or minimum sum after the initial sale.
And the said Grantor does hereby covenant and agree with the
Trustee as follows:
~,. TAXES, ASSESSMENT. CHARGES. The Grantor shall pay all
taxes, assessments and charges as may be lawfully levied against
said Premises within 30 days after the same shall become due. In the
event that Grantor fails to so pay all taxes, assessments and
charges as herein required, then Beneficiary, at his option, may pay
the same and the amounts so paid shall be added to the principal of
the Nate secured by this Deed of Trust, and shall be due and payable
upon demand of Beneficiary.
Z. WASTE. The Grantor will keep the Premises herein conveyed
in as good order, repair and condition as they are now, reasonable
wear and tear excepted, and will comply with all governmental
requirements respecting the Premises or their use, and will not
commit or permit any waste.
3. CONDEMNATION. In the event that any or all of the Premises
shall be condemned and taken under the power of eminent domain,
Grantor shall give immediate written notice to Beneficiary and
z5
Beneficiary shall have the right to receive and collect all damages
awarded by reason of such taking, and the right to such damages
hereby is assigned to Beneficiary who shall have the discretion to
apply the amount so received, or any part thereof, to the
indebtedness due hereunder and if payable in installments, applied
in the inverse order of maturity of such installments, or to any
alteration, repair or restoration of the Premises by Grantor and t~o
account to the Grantor with respeot to any surplus thereof.
4. WARRANTIES. Grantor covenants with Trustee and Beneficiary
that it is seized of the Premises in fee simple, has the right to
convey the same in fee simple, that title is marketable and free and
clear of all encumbrances, and that it will warrant and defend the
title against the lawful claims of all persons whomsoever, except
for the exceptions hereinafter stated.
5. IIBSTITUTION OF„TRIISTEE. Grantor and Trustee covenant and
agree to and with Beneficiary that in case the Trustee, or any
successor trustee, shall die, become. incapable of acting, renounce
his trust, or for any reason the holder of the Note desires to
replace said Trustee, then the holder may appoint, in writing, a
trustee to take the place of the Trustee; and upon the probate and
registration of the same, the trustee thus appointed shall succeed
to all rights, powers and duties of the Trustee.
6. ADVANCEMENTS. xf Grantor shall fail to perform any of the
covenants or obligations contained herein or in any other instrument
given as additional security for the Note secured hereby, the
Beneficiary may, but without obligation, make advances to perform
such covenants or obligations, and all such sums so advanced shall
be added to the principal sum, shall bear interest at the rate
provided in the Note secured hereby for sums due after default and
shall be due from Grantor on demand of the Beneficiary. No
advancement or anything contained in this paragraph shall constitute
a waiver by Beneficiary or prevent such failure to perform from
constituting an event of default.
7. WAxVERS. Grantor waives all rights to require marshalling
of assets by the Trustee or Beneficiary. No delay ~r omission of the
Trustee or Beneficiary in the exercise of any right, power or remedy
arising under the Note or this Deed of Trust shall be deemed a
waiver of any default or acquiescence therein or shall impair or
waive the exercise of such right, power or remedy by Trustee or
Beneficiary at any other time.
8. TAX COMPLIANCE. The Grantor shall not take, permit.or omit
.~o
to take any action the taking, permitting or omission of which would
cause its payment obligations under the Note to be "arbitrage bonds"
or ^`private activity bonds" within the meaning of the Code, or
otherwise -adversely affect the exclusion from gross income for
federal income tax purposes of interest' on the Note to which such
interest would otherwise be entitled. 'Tf the Grantor should take,
permit or omit any such action, then the Grantor shall take all
lawful actions within its power necessary to rescind or correct such
actions or omissions promptly .upon the Grantor's having knowledge
thereof. For the purposes of this paragraph, "Code" means the United
States Internal Revenue Code of 1986, as amended through the
delivery date of the Note, and includes applicable Treasury
regulations.
9. NO DEFICIENCY. AS SET FORTH ABOVE, THIS DEED OF TRUST
SECURES AN OBLIGATION OF THE GRANTOR FOR THE UNPAID PURCHASE PRICE
FOR REAL PROPERTY ACQUIRED UNDER THE AUTHORITY OF NORTH CAROLINA
GENERAL STATUTE SECTION 160A-20, WHICH OBLIGATION TS EVIDENCED BY
THE,NOTE. AS PROVIDED IN THE NOTE, NO DEFICIENCY JUDGMENT MAY BE
RENDERED AGAINST THE GRANTOR IN ANY ACTION TO ENFORCE THE RIGHTS OF
THE,HOLDER OF THE NOTE, THE TRUSTEE OR THE BENEFICIARY HEREUNDER OR,
UNDER THE NOTE OR PURSUANT TO THE OBLIGATION OF THE GRANTOR TO
PURCHASE THE PREMISES, AND THE TAXING POWER OF THE GRANTOR IS NOT
AND MAY NOT BE PLEDGED DIRECTLY OR INDIRECTLY TO SECURE ANY MONEYS
DUE UNDER THE NOTE, THIS, DEED OF TRUST OR THE GRANTOR'S OBLIGATION
TO PURCHASE REAL PROPERTY IN CONNECTION WITH THIS TRANSACTION.
IN WITNESS WHEREOF, the Grantor has caused this instrument
to be executed by its elected Chair and attested by its Clerk by
authority of its Board of Commissioners, the day and year first
above written.
ORANGE COUNTY,'NORTH CAROLINA
ATTEST:
Clerk to the Board of
Commissioners of Orange
County
By:
Stephen H. Halkiotis, Chair, Board of
Commissioners of Orange County
31
NORTH CAROLINA
ORANGE COUNTY
I, a Notary Public of the County and State aforesaid,
certify that Beverly A. Blythe personally appeared before me
this day and acknowledged that she is the Clerk to the Board of
Commissioners of Orange County, and that by authority duly given and
as an act of the County, the foregoing instrument was signed in its
name by its Chair and attested by Beverly A. Blythe as its Clerk.
Witness my hand and official stamp or seal, this day of
2000.
Notary Public
My Commission Expires:
(SEAL -STAMP )
The foregoing Certificate (s) of
is certified to be correct. This instrument and this certificate are
duly registered at the date and time and in the Book and Page shown
on the first page hereof.
REGISTER OF DEEDS FOR ORANGE
COUNTY. By:
Deputy/Assistant--Register of Deeds
lsg:orangecouaty\Alayesdoftr.doc
EXHIBIT C
Amo'r~iza~ian Schedule
Page: 1
Initial Loan Amount: $430,992.00
Initial Interest Rate: 5.0000
Initial Periods: 20
Points: 0.0000
Origination Date: 06/30/01
First .Payment Due: ~ 09/01/01
Payment Method: Quarterly
Compounding Method: Monthly
Amortizing Method: Fixed Principal
Rate Basis: Ordinary
Points Paid: At Origination
3~
Amortization Schedule
page:
#/Yr Data Pa ent Princi a1 Interest Balance
znit/01 06/30/01 $0.00 $0.00 $0.00
$430,992.00
1/01 09/01/01 $24,389.79 $21,549.60 $2,840.19 $409,442.40
2/01 12/01/01 $26,688.98 $21,549.60 $5,139.38 $387,892.80
Annual Totals: $51, D78. 77 $43, 099.20•,: $7, 979.57
Running Totals: $51,078.77 $43,099.20 $7,979.57
3/01 03/01/02 $26,418.49 $21;549.60 $4,868.89
$366,343.20
4/01 06/01/02 $26,148.00 $21,549.60 $4,598.40 $344,793.60
5/02 09/01/02 $25,877.50 $21,549.60 $4,327.90
$323,244.00
6/02 12/01/02 $25,607.01 $21,549.60 $4,057.41 $301,694.40
Annual Totals: $104,051.00 $86,198.40 $17,852.60
Running Totals: $155,129.77 $129,297.60 $25,832.17
7/02 03/01/03 $25,336.52 $21,549.60 $3,786.92 $280,144.80
8/02 06/01/03 $25,066.02 $21,549.60 $3,516.42 $258,595.20
9/03 09/01/03 $24,795.53 $21,549.60 $3,245.93 $237,045.60
10/03 12/01/0,3 $24,525.03 $21,549.60 $2,975.43 $215,496.00
Annual Totals: ~ $99,723.10 $86,198.40 $13,524.70
Running Totals: $254,852.87 $215,496.00 $39,356.87
11/03 03/01/04 $24,2.54.54 $21,549.60 $2,704.94 $193,946.40
12/03 06/01/04. $23,984.05 $21,549.60 $2,434.45 $172,396.80
13/04 09/01/04 $23,713.55 $21,549.60 $2,163.95 $150,847.20
14/04 12/01/04 $23,443.06 $21,549.60 $1,893.46 $129,297.60
Annual Totals: $95,395.20 $86,198.40 $9,196.80
Running Totals: $350,248.07 $301,694.40 $48,553.67
15/04 03/01/05 $23,172.56 $21,549.60 $1,622.96 $107,748.00
16/04- 06/01/05 $22,9D2.07 $21,549.60- $1,352.47
$86,198.40
17/05 09/01/05 $22,631.58 $21,549.60 $1,081.98 $64,648.80
18/05 12/01/05 $22,361.08 $21;549.60 $811.48' $43,099.20
Annual Totals: $91,067.29 $86,198.40 $4,868.89
Running Totals: $441,315.36 $387,892.80 $53,422.56
19/05 03/01/06 $22,090.59 $21,549.60 $540.99 $21,549.60
20/05 06/01/06 $21,820.09 $21,549.60 $270.49 $0.00
Annual Totals: $43,910.68 $43,099.20 $811.48
Running Totals: $485,226_D4 $430,992.00 $54,234.04
Prepared By: Orange County