HomeMy WebLinkAboutAgenda - 03-21-2000-7ai ~
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: March 21, 2000
Action Agenda
Item No. _`7-a
SUBJECT: Installment Purchase of Land from Duke Univers' and Acce tance of Grant
DEPARTMENT: Environment and Resource PUBLIC HEARING: (Y/N) Yes
Conservation
ATTACHMENT(S):
• Attachment A -Resolution of Purchase
• Attachment B -Property Deed
• Attachment C -Installment Purchase
Promissory Note
Attachment D -Installment Purchase
Deed of Trust
• Attachment E -Draft Grant Agreement
with Exhibit A
• Attachment F -Draft Declaration of
Covenants with Exhibit A
• Attachment G -Draft Conservation
Easement
• Attachment H -Environmental Resources
Conservation Capital Project Ordinance
• Attachment I -Survey Plat
INFORMATION CONTACT:
Geof Gledhill, 732-2196
Dave Stancil, 245-2590
Rich Shaw, 245-2591
TELEPHONE NUMBERS:
Hillsborough 732-8181
Chapel Hill 968501
Durham 688-7331
Mebane 336-227-2031
PURPOSE: To hold a public hearing on a resolution authorizing the installment purchase of
land from Duke University, and to approve a grant agreement with the Clean Water
Management Trust Fund for a grant of $143,000. The public hearing is required for any
acquisitions of property via an installment purchase (consistent with the provisions of N.C.G.S.
160A-20).
BACKGROUND: In early 1999, the Board considered the purchase of a 63-acre tract of land in
Cheeks Township formerly part of Duke Forest. The Board agreed to an option in the spring of
1999 to purchase the property from Duke at a price of $280,000, and authorized the submittal
of a grant to the Clean Water Management Trust Fund. A $143,000 grant was awarded to the
County in November 1999, and the Board agreed to exercise the option to purchase on
December 7, 1999. The remaining funds required to purchase the property will come from the
County's pay-as-you go funds budgeted in the Environmental Resources Conservation Capital
Project along with interest from the School/Parks Capital Reserve Fund.
Since that time, the County Attorney, ERCD staff and representatives from Duke have worked
out a schedule for purchase that would have a closing date of March 31, 2000. The Attorney
and ERCD staff have also worked out details of the grant agreement with the Clean Water
Management Trust Fund (attached). The financial details of the purchase and the grant are
z
shown in the attached resolution and purchase materials. Staff expects the grant to be in hand
in April 2000.
FINANCIAL IMPACT: Including surveys, appraisals, and interest, the total purchase price for
the property $300,097.. The table below provides details regarding the acquisition costs and
funding sources:
Duke Property Land Acquisition
Land Acquisition Costs:
Land $279,900
Surveys, Appraisal and Closing Costs $9,367
Interest 10 830
Total Acquisition Cost $300,097
Funding Sources:
Clean Water Management Trust Grant $143,000
Pay-As-You-Go funds in the Environmental Resources
Conservation Capital Project $78,549
Accrued Interest from School/Park Capital Reserve
Fund 78 549
Total Fuuding Sources $300,097
As outlined in the attached materials, $144,008 is due at closing with the remaining balance
due in two annual installments (fiscal year 2000-01 and 2001-02). The attached Environmental
Resources Conservation Capital Project Ordinance provides for the receipt of the grant and the
transfer of funds from the School/Parks Capital Reserve Fund.
RECOMMENDATION(S): The Manager recommends that, upon closing of the public hearing,
the Board approve the resolution, with a planned closing date on the property of March 31,
2000.
Attachment A
3
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,
North Carolina at 7:30 P.M. on March 21, 2000.
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 62.55 acres of land (hereafter
"the Property") located in central Orange County, adjacent to US
70 West and to property on which is located Corporation Lake, a
public water supply impoundment owned by Orange Alamance Water
System, Inc., for the purposes of conserving so much of the
property purchased as is deemed appropriate by the County to
buffer the Eno River, McGowan Creek and an unnamed tributary of
the Eno River 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 Hexald on March
11, 2000 and The News of Oran e Count on March 15, 2000, 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
Duke University 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.
[ and
appeared and their comments are contained in the minutes of this
meeting.]
[No one appeared, either in person or by attorney, to be
heard on such matter.]
1
4
The Board also considered a draft Clean Water Management
Trust Fund Grant Agreement, a draft Temporary Conservation-
Easement and a draft Permanent Conservation Easement, all of
which are necessary to document the State's participation in the
purchase of the Property and. which will establish. a permanent
easement on the riparian buffer portion of the Property.
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 DUKE UNIVERSITY AND BETWEEN ORANGE COUNTY AND THE
STATE OF NORTH CAROLINA CONCERNING THE INSTALLMENT
PURCHASE BY THE COUNTY OF A 62.65 ACRE PARCEL OF LAND
DESCRIBED HEREIN AND THE CREATION OF A CONSERVATION
EASEMENT ON THE RIPARIAN BUFFER AREAS OF THE PROPERTY
ALL AS SHOWN ON THE DOCUMENTS THAT ARE EXHIBITS TO
THIS RESOLUTION, 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 has' previously approved the application
for a Clean Water Management Trust Fund grant to help pay for
the acquisition of the Property, which grant has been approved
by the Clean Water Management Trust Fund under the terms and the
conditions generalJ.y of the Grant Agreement, Temporary
Conservation Easement and Permanent Conservation Easement,
drafts of which are exhibits to this resolution; 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 interest to secure repayment
of moneys made available for such purpose; and
5
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 following documents relating to this
matter:
(a) a form of a deed from Duke University to the County
for the purchase of the Property; and
(b) a draft of an Installment Purchase Promissory Note
under which Duke University would "advance" funds for the
acquisition of the Property and the County would be obligated to
make installment payments (as defined therein) to repay the
funds advanced to it; and
(c) a draft of an Installment Purchase Deed of Trust which
the County would execute and deliver to a trustee for the
benefit of Duke University 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
(d) a draft of the Clean Water Management Trust Fund Grant
Agreement under which the Clean Water Management. Trust fund
would provide $143, 000 to the County fox the acquisition of the
Property and to ensure the conservation of the riparian buffer
area of the property and related draft Temporary Conservation
Easement and draft Permanent Conservation Easement to ensure the
permanent conservation of the riparian buffer area; now,
therefore,
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 i.n 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 directly 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, the
Installment Purchase Deed of Trust, the Clean Water Management
Trust Fund Grant Agreement, the Temporary Conservation Easement
and the Conservation Easement 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' deed, the
Installment Purchase Promissory Note, the Installment Purchase
Deed of Trust, the Clean Water Management Trust Fund Grant
Agreement and the temporary and permanent Conservation Easement
Agreements 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 axad directed to execute and
deliver the 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 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 Option to Purchase
Agreement except as those agreements may vary the terms of the
Option to Purchase Agreement; and that, under the Installment
Purchase Promissory Note the final installment payment is due
not later than January 31, 2002, the maximum stated interest
rate with respect to the Installment Payments does not exceed
5.00°s per annum and the aggregate amount of the principal
components of the Installment Payments does not exceed $279,900.
d
6
Section 4. The Board of Commissioners hereby approves,
ratifies and confirms the actions of the County Manager, the
Finance Director aid the County Attorney of the County in
connection with this matter.
Section 5. The officers and employees of the County are
authorized and directed (without limitation except as may be
expressly set forth herein) to take such other actions and to
execute and deliver such other documents, certificates,
undertakings, agreements or other instruments as they, with the
advice of counsel, may deem necessary or appropriate to
effectuate the transactions contemplated by the agreements
recited herein.
Section 6. This resolution shall take effect immediately
upon its passage..
Upon motion duly made and seconded, the foregoing
resolution was passed by the following votes:
Ayes: Commissioners
Noes:
I, Beverly A. Blythe, Clerk to the Board of Commissioners
for the County of Orange, North Carolina, DO HEREBY CERTIFY that
the foregoing has been carefully copied from the recorded
minutes of the Board of Commissioners for said County at a
regular meeting of said Board held on March 21, 2000, said
record hava.ng been made in Minute Book No . of the minutes
of said Board, and is a true copy of so much of said proceedings
of said Board as relates in any way to the matters described in
said proceedings.
I DO HEREBY FURTHER CERTIFY that a schedule of regular
meetings of said Board, in the form attached hereto, has been on
file in my office as of a date not less than seven days before
the date of said meeting in accordance with G.S. ~ 143-318.12.
WITNESS my hand and the corporate seal of said County, this
the of 2000.
Beverly A. Blythe
Clerk to the Board of Commissioners
1sg:orangecounty\dukepropproceedings.doc
C,
Attachme.,r n
Mail after recording to ..............Geoffrey,,,E,,,,.Gledhill:..Cg1e1l1aA,,...G~.4.S~~~~.~...~..$+~x$7C.~,x.~,...P....C.,,.,.......................,....
I?.0, Drawer 1529, H311sboraugh, NC 27278
This instrument was prepared by ...............G.eQ~~~ey...~......~r.~~.dhi~.~,.............................................................................,......,.................
$rieY description for the Index
NORTH CAROLINA GENERAL WARRANTY DEED
THIS DEED made this ................ day of ..............................................................., 8S. 2.QOQ by and between
GRANTOR.
Duke University
GRANTEE
Orange County, North Carolina
P.0. Box 8181
Hillsborough, NC 27278
Enter fn appropriate block for eaeb party: name, address, and, ll appropriate, character a[ entity, e.q. corporation or partnership.
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 as required by context.
WITNESS1;TIi, that the Grantor, for a valuable consideration paid by the Grantee, the receipt of which is hereby
aclrnowledged, has and by these presents does grant, bargain, sell and convey unto the Grantee in fee simple, all that
certain lot or parcel of land situated in the City of ............................................................. ..........C~ee~S....................... Township,
................Orange...................... County, North Carolina and more particularly described as follows;
Chat lot and parcel of land containing approximately 62.65 acres depicted on the March 2000
:allemyn-Parker, Inc, survey titled "Property surveyed for Orange County Environment ~
Lesource Conservation Department," which plat is recorded at Plat Book Page ,
)range County Registzy.
Tax Lot No......T.~7F...M~:p...~.,.~kl.....,_~.4 .............................................. Parcel Identifier No.......~B.SS.-S.Qa.8~.b7......_................................
Verified by ........................................................................ County. on the ................ day of ......,........:.....; ............,...............,....., 19............
by ..... ......................................................................................................... ....................................................................................................
7a
The property hereinabove described was acquired by Grantor by instrument recorded in ........A~ed...$AA15 ................................
Page ................. ~...Orange... Gaunt;y...B.egis.t:ry.................
A map showing the above described property is recorded in Plat Book .................................... page.........................
TO HAVE AND TO HOLD the aforesaid lot or parcel of ]and and all privileges and appurtenances thereto belonging to
the Grantee in fee simple. '
And the Grantor covenants with the Grantee, that Grantor 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 Grantor will warrant and
defend the title against the lawful claims of all persons whomsoever except for the exceptions hereinafter stated.
Title to the property hereinabove described is sub]ect to the following exceptions:
IN {YITNF.55 {VHBREVF. the Grantor has hereunto set hla nand and Seal, or if corporate, has Caused this Instrument to ba slCaed is les
corporate name by !ta duly auuiorlxed officers and its seal to De hereunto afflzed by authprlty of Itr 80ard of Directors, the day apd year [lest
above written.
(Cvepvrate Name) Y
O
8Y: ___________________________________________________________ x ________
$xecuti{te_ Yice_______Peestaent
ATTEST: ('
~ ---`---------------------------------------------------------(s6AL)
.7
--------------------------------------------------------------' P9
Y1111_V_QXS~C}!_____________Secretary (Corporate Seal) V1 ____________(SBAL)
5EAL•5TA11IP NORTH CAROLINA, __________________________________CvuntY.
,y~ I, a Notary Puellc of ehe County And 5F+te aforesaid, certify that __________________________________________
d
personally appeared before me t41s day and ackpvwledsed the execution al the fate6vin6 lnstrWnen0. witness my
Y
a nand and offfclal stamp or teal,ehty -------- day at ----------------------------°---------_, Ie-----'
my Commission expires:____________________~_________ ________________________________________ Notary Pubne
SEAL-STApiP NORTH CAROLINA, __________12V1~~______________CountY.
I, a Notary PnbDC of the Cppnty apd 6tate aforeSAld, Certl[y that -_~--------------"'---------"---'.....-.
,~ peraoaany same before me this day apd asknowledCad that ____ he la ____~A~.~~.=B,7.t.3f________ Secretary pt
" ]~uls~._iUalvar&
y .____ a.r.~___________________________ a North Carolina Corporation, and that hq sufhoelty du~Y
plven and as we act oI th! Corporatlea, }$e [OreCelnR Instrument was slCped In its name by Iq )»XP CII.t~\(&-Vj.Ce
,°r Peesiden6 sealed wlw IW Corporate seal and attested by ___________ as Its ______]7A~.YE.rFt7.xy______ aecretat'y.
a .~r~ ~r~
w1tAl56 mY hand ahd O[IIC91 stamp O[ 6eR1, this _______day O[ ___________________________ SI~_LlllJll.
11ty commisslpa e>;plres;
Notary publk
The foreColnC CeedflCate(s) of
1s/are Certified to be correct This Instrument apd th18 Certl,[icRte are duly re6istered at the date and time and l4 ehe nbok apd PAC! shown vp the
first pace h~reo[.
_______________________________________________________________________REGISTER OF DEEDS FOR____________________________________CO[1NTY
gY ___________________________________________________________________Deppty/Aislstaht- ReClater a1 Heeds
Attachment C
8
SATISFACTION: The debt evidenced by
this Note has been satisfied in full
this day of 20
Signed:
INSTALLMENT PURCHASE PROMISSORY NOTE
Hillsborough, N.C.
March 31, 2000
FOR VALUE RECEIVED the undersigned, County of Orange, North
Carolina (the "County"), promises to pay to DUKE UNIVERSITY, or
assigns of which the County has been notified, the principal sum
of $279,900.00, with interest from March 3, 2000 at the rate of
five per cent (5~) per annum on the unpaid balance until paid,
both principal and interest payable in lawful money of the
United States of America, at the office of Jeffrey H. Potter,
Director of Real Estate Administration, 402 Oregon Street,
Durham, North Carolina 27705 or at such place as the legal
holder hereof may designate in writing. The principal and
interest shall be due and payable in one installment of
principal and interest in the amount of $144,008.88 ($142,9OO.D0
principal; $1,108.88 interest) on March 31, 2000, one
installment of principal and interest in the amount of
$75,350.00 ($68,500.00 principal, $6,850.00 interest) on March
31, 2001 and a final installment of principal and interest in
the amount of $71,371.37 ($68,500.00 principal; $2,871.37
interest) on January 31, 2002. Each such installment shall,
unless otherwise provided,, be applied first. to payment of
interest then accrued and due on the unpaid principal balance,
with the remainder applied to the unpaid principal.
If not sooner paid, the entire remaining indebtedness shall
be due and payable on January 31, 2002.
This instrument has been preaudited in the manner required
by The Local Government Budget and Fiscal Control Act.
Dated: 20
Finance Director; Orange County
9
This Note may be prepaid in full or in part at any time
without penalty or premium. Partial prepayments shall be applied
to installments due in reverse order of their maturity.
Tn 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 not cured within 20 days
after written notice to the undersigned, 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. k'ailure 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 is delivered under the authority of North
Carolina General Statute Section 160A-20 as a part of the
payment of the purchase price for areal property, and is secured
by a Deed of Trust of even date (the "Deed of Trust") to Jeffrey
H. Potter, Trustee which is a lien upon the property therein
described.
The obligation of the County to make payments hereunder
shall be from year to year only and 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. In the event the
governing board of the County determines not to appropriate in
its budget an amount to pay the sums due hereunder in the fiscal
year for which such budget applies, said board shall adopt 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
~o
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 DEFICxENCY JUDGMENT MAY SE RENDERED AGAINST THE
COUNTY IN ANY ACTION FOR BREACH OF ANY OBLIGATION UNDER THIS
NOTE OR THE DEED OF TRUST OR UPON P: NONAPPROPRIATION, AND THE
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
FROPERTY IN CONNECTION WITH THIS TRANSACTION.
2N WITNESS WHEREOF, Orange County has duly caused this
instrument to be executed under seal the day and year first
above written.
ATTEST:
Clerk to the Board of
Commissioners of Orange
County
ORANGE COUNTY, NORTH CAROLINA
Sy:
Chair, Board of
Commissioners of Orange County
(SEAL )
lsg:orangecounty\dukeproppromnot.doc
Attachment D
DRAWN BY AND RETURN TO: 11
Geoffrey E. Gledhill
P.O. Drawer 1529
Hillsborough, North Carolina 27278
STATE OF NORTH CAROLINA
TNSTALLMENT~PURCHASE DEED OF TRUST
COUNTY OF ORANGE
THIS INSTALLMENT PURCHASE DEED OF TRUST (the "Deed of Trust")
made this 31ST day of March, 2000, by and between ORANGE COUNTY,
NORTH CAROLINA, whose address is Post Office Sox 8181, Hillsborough,
North Carolina 27278 (hereinafter referred to as the "Grantor");
Jeffrey H. Potter, whose address is 402 Oregon Street, Durham, North
Carolina 27705 (hereinafter referred to as the "Trustee); and DUKE
UNSVERSITY, whose address is 402 Oregon Street, Durham, North
Carolina 27705 (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 Beneficiary its
Installment Purchase Promissory Note of even date (the "Note") in
the principal sum of $279,900.00, 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 Beneficiary. The
final due date for payment of the Note, if not sooner paid, is
January 31, 2002.
NOW, THEREFORE, as security for the Grantor's obligation under
the Nate 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 Cheeks Township, Orange County,
North Carolina, (the "Premises") and more particularly described as
follows:
That lot and parcel of land containing approximately 62.65
acres depicted on the March 2000 Callemyn-Parker, Inc.
survey titled "Property surveyed for Orange County
Environment & Resource Conservation Department," which
plat is recorded at Plat Book Page Orange
County Registry.
TQ HAVE .AND TQ 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.
12
Zf 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 of 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 Note, 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 for cash, after having first given
such notice of heaxing 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
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
13
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:
1. TAXES ASSESSMENTS CHARGES. The Grantor shall pay all
taxes, assessments and charges as maybe 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 Note secured by this Deed of Trust, and shall be due and payable
upon demand of Beneficiary.
2. 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 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.
4. WARRANTIES. Grantor covenants with Trustee and
Beneficiary that it is seized of the Premises in fee simple, has the
14
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. SUBORDINATION TO CONSERVATION EASEMENT. This Deed of Trust
is and shall be subject and subordinate at all times to the
Declaration of Covenants and Restrictions and Conservation Easement
by and between Grantor and the State of North Carolina which
Declaration and Conservation Easement create a conservation easement
insomuch of the Premises as is identified as "Subject to
Conservation Easement Agreement between Orange County, North
Carolina and the State of North Carolina" on the recorded plat
depicting the Premises referred to in the description of the
Premises herein, without the necessity of the execution and delivery
of any further instruments on the part of Grantor or others to
effectuate such subordination.
Beneficiary and Trustee., upon request of any party in interest,
shall execute and deliver to Grantor promptly such instruments or
certificates to carry out the intent of this section as shall be
requested by Grantor. If twenty (20) days after the date of a
written request by Grantor to execute and deliver such instruments,
Beneficiary and/or Trustee shall not have done the same, Grantor
may; at its option, institute an action for the specific performance
of this obligation on the part of Beneficiary and Trustee. In the
event Grantor institutes an action for specific performance as
provided here, Beneficiary shall also be liable to Grantor far the
reasonable attorneys' fees and expenses incurred by Grantor in
prosecuting such action and the costs of such action.
6. SUBSTITUTION OF TRUSTEE. 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.
7. ADVANCEMENTS. If 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
15
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.
8. TNDENIl~iITY. If any suit or proceeding be brought against
the Trustee or Beneficiary, except one provided for in paragraph
number 5 of this Deed of Trust, or if any suit or proceeding be
brought which may affect the value or title of the Premises, Grantor
shall, to the extent permitted by law, defend, indemnify and hold
harmless and on demand reimburse Trustee or Beneficiary from any
loss, cost, damage or expense and any sums expended by Trustee or
Beneficiary shall bear interest as provided in the Note secured
hereby for sums due after default and shall be due and payable on
demand.
9. WAIVERS. Grantor waives all rights to require marshalling
of assets by the Trustee or Beneficiary. No delay or 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.
10. CIVIL ACTION. In the event that the Trustee is named as
a party to any civil action as Trustee in this Deed of Trust, the
Trustee shall be entitled to employ an attorney at law, including
himself if he is a licensed attorney, to represent him in said
action and the reasonable attorneys' fees of the Trustee in such
action shall be paid by the Beneficiary and added to the principal
of the Note secured by this Deed of Trust and bear interest at the
rate provided in the Note for sums due after default.
11. 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 IS 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 CONNECTSON WITH THIS TRANSACTION.
16
xN WITNESS D~HEREOF, the Grantor has caused this instrument
to be executed by its elected Chair, attested by its Clerk and its
seal to be hereunto affixed by authority of its Board of
Commissioners, the day and year first above written.
ORANGE COUNTY, NORTH CAROLINA
ATTEST:
Clerk to the Soard of
Commissioners of Orange
County
By:
Chair, Board of
Commissioners of Orange County
(SEAL)
NORTH CAROLINA
ORANGE COUNTY
17
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 Soard 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 Chairman, sealed with its sea]. 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
1sg:orangeoounty\dukepropdoft.doc
Attachment g
18
CLEAN WATER MANAGEMENT TRUST FUND
GRANT' AGREEMENT
(PROPERTY ACQUISITION)
GRANTEE: Or
FEDERAL LD.
PROPERTY IIa
GRANT AGREEMENT NO.: 1999A-017
THIS GRANT AGREEMENT (the "Grant Agreement"), is made effective as of the
day of 19 by and between, THE NORTH CAROLINA CLEAN WATER
MANAGEMENT TRUST FUND, acting through its Board of Trustees solely in its official
capacity pursuant to Article 13A of Chapter .113 of the General Statutes of North Carolina (the
"Fund") and ORANGE CQUNTY, a North Cazolina local ~ovenunent (the "Grantee").
RECITALS
A. The Grantee will use the fiinds described in Section T hereof for the purchase of the
property described in Exhibit A attached hereto (the "Property', for the purposes and according to
the schedule set out in Exhibit A.
B. The Fund tentatively approved the Grantee's application at its meeting on November
1 S, 1999 anal is willing to make the grant described hereinabove based an the terms and conditions
set Earth in this Grant Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the mutual. agreements set forth herein together
with other good and valuable consideration, the receipt and sufficiency of which are hereby.
aclcnawledged by the parties hereto, the Grantee and the Fund enter into this Grant Agreement in
accordance with Article 13A of Chapter 113 of the Generai Statutes of North Carolina (N.C.G.S.
§ 113-145.1, et sea.).
SECTION I
The Grant
l.l. Grant. Subject to the terms and conditions of this Grant Agreement, the Fund will
grant the Grantee the sum of up to $143,000.00 (the "Grant"), towards land acquisition costs of the
Property as described on Exhibit A attached hereto, for the purchase of the Property pursuant to the
terms hereof.
1.2. Grant Purpose. The purpose of the Grant is for Property acquisition and
conservation. The Grant funds will be disbursed according to the provisions of Section IV after the
19
conditions set out in Sections II and III have been satisf ed or waived in writing by the Fund, and
subject to all other provisions of this Grant Agreement
1.3 Other Uses Prohibited Grant funds may not be used for any purpose other than
those described in paragraph 1.2.
1.4 Grant Disbursement Period The Fund's commitment to disburse Grant funds under
this Grant Agreement shall cease on
SECTION II
Conditions Precedent for Disbursement of An Grant Funds
Before any Grant fixnds are disbursed for the acquisition of the Property (the "Property
Acquisition"), the Grantee shall deliver to the Fund the following items:
2.1. Document to Be Provided b the Grantee. As a local government or other political
subdivision of the State of North Carolina, or a combination of such entities, it or they shall provide
the Fund authorization from the governing boazd or other appropriate authority to perform the
functions and obligations of Grantee set out in this Grant Agreement
. 2.2. Matchin~Funds. Proof of availability of matching funds, if required by the Grant
approval. - -
2.3. Compliance with Laws. Evidence satisfactory to the Fund that the Property and its
intended uses are, and will continue to be, in compliance with all applicable laws, regulations and
ordinances, including without limitation, land use, health and environmental protection laws and
zoning laws.
SECTION III
Conditions Precedent for Pro e A uisitian
Grant funds for the Property Acquisition may be disbursed at Closing for the purchase, or
may be reimbursed subsequent to Closing. In either case, the Fund shall disburse Grant funds for
the Property Acquisition only after all of the following items have been delivered to and approved
by the Fund as satisfactory in form. and substance and, where appropriate, have been properly
executed and/or recorded at Closing of the Property Acquisition:
3.1. Purchase Agreement or Option. Copy of the purchase agreement or option to
Grantee which sets forth the teens of the Property Acquisition.
3.2. Proposed Deed. Proposed General Warranty Deed (the "Deed's or other instrument
of conveyance, which indicates Grantee's ownership and possession of fee simple title, flee and
cleaz of any liens, chazges or encumbrances that would materially affect the use of the Property as
set forth in the Conservation Easement. The general watraniy deed shall include such restrictions
Orange County 99A-~17 Contract.doc 12/07/99 9:32 AM 2
zo
as the Fund shall deem necessary to effectuate'the recordation and effectuation of the Conservation
Easement
3.3. Pro osed Conservation Easement. A proposed Conservation Easement showing the
State of North Cazal,iraa ("State") as grantee and otherwise in form satisfactory to'the Fund (the
"Conservation Easement").
3.4. Zonin and Re atv Com fiance. Evidence that the Property is or will be zoned
to allow the uses described on Exhibit A attached hereto, and that other requixed regulatory
approvals have or will be obtained, and there are no hazardous materials, wastes, or other
environmentally regulated substances in, on or under the Property and no environmental condition
that may prohibit or impede the Grantee's intended use of the Property as described on Exhibit A
attached hereto.
3.5. Title Insurance Binder. A standard ALTA title insurance binder, with a policy to be
delivered after closing, for the' Property from a company approved .by the Fund without exception
as to matters of survey: (a) providing coverage for the full principal amount of the Grant used to
purchase the Property; , (b) listing only those title exceptions acceptable to the Fund; and
(c) including insurance of all appurtenant easements, if any..
3.6. Title Exceptions, Copies of all recorded documents creating exceptions to the Title
Palicy.
3.7. Survev, Three (3) copies (Twa full-sized, one 8 '/z by 11 inch) of a complete and
accurate survey of the Praperty made within 90 days prior to the closing of the Property
Acquisition.
3.8. Appraisal. Appraisal(s) of the value of .the Property, satisfactory to the Fund,
performed by an independent certified appraiser acceptable to the Fund and consistent with
regulations or policies of the State Property Office and policies of the Fund which reflects that the
Grantee did not pay in excess of a current fair market value of the Property.
3.9. Environmental,,, Report. An environmental report regazding the environmental
condition of the Property satisfactory to the Fund.
3.10. Taxes. Evidence that the ad valorem taxes have been paid through the yeaz prior to
the yeaz in which the Property Acquisition is to take place under this Grant Agreement, and
information as to tax pazcel identification nuanbers, tax rates, estimated tax values and the identities
of the taxing authorities.
SECTION IV
Disbursement of Ac uisition Funds
4.1. Timm . Disbursemern of Grant funds shall be made at the closing of the Property
Acquisition (the "Closing's or as a reimbursement to Grantee subsequent to Closing.
Orange County 99A-017 Contract.doc 12/07/99 9:32 AM 3
21
4.2. Closin Attorne .Prior to each Closing, the Grantee shall provide the Fund the
name, address, and telephone number of the closing attorney and the time and location of the
Closing.
4.3 Deed. The original previously approved General Warranty Deed executed in
recordable form shall be delivered by the Grantee to the closing attorney and recorded at Closing.
4,4 Conservation Easement. The previously approved Conservation Easement, and
Restrictive Covenants, if any, executed in recordable form, shall be delivered to the closing attorney
and recorded at Closing. Yf the State is a grantee and Conservation Easement has been approved by
the Council of State, the Conservation Easement shall be recorded at Closing. If not, Restrictive
Covenants, satisfactory to the Fund (the "Restrictive Covenants' shall be recorded at Closing
and, until the Conservation Easement is recorded or the term of the Restrictive Covenants expires,
whichever is sooner, the Grantee will take. no action that would adversely affect the ~ purposes or.
effect ofthe Conservation Easement. Upon approval of the Conservation Easement by the Council,
of State, it shall be recorded.
4.5 Closin Documentation. Subsequent to Closing, the closing attorney shall.
immediately provide to the Fund a copy of the Deed, a copy of the Title Insurance Policy, a copy of
the Closing Statement, the Conservation Easement and a copy of the Restrictive Covenants with
recording information, and a copy of all other documents and materials the Closing attorney
prepared or received ax Closing.
4.6 Audits. Grantee agrees that the Fund and the State have the right to audit the books
and records of the Grantee pertaining to this Grant Agreement both prior to the Closing and for
thirty-six (36) months after Closing or the completion or termination of this Grant Agreement. The
Grantee shall retain complete accounting records, including original invoices, payrolls, contracts, or
other documents cleazly showing the nature of all costs incurred under this Grant Agreement, for
that same period of time.
4.7 No Excess Costs. The Fund agrees to reimburse the Grantee only for reasonable
costs actually incurred by the Grantee which do not exceed the funds budgeted for the Property
Acquisition in Exhibit A.
SECTION V
Affirmative Covenants
5.1 Dedication of Pro . If required by the Fund, Grantee agrees to promptly pursue
dedication of the Property as a North Carolina, nattne preserve if those lands are declared eligible by
the State's Secretary of the Department of Environment and Natural Resources pw~suant to the
N.C.G.S. Chapter 113A, Article 9A (the "Nature Preserves Act").
Orange County 99A--017 Contract.doc 12/07/99 9:32 AM
22
5.2. Conservation,,EaSement. Grantee she'll grant ~a Conservation Easement over the
Property to the State or, at the Fund's discretion, a third party that would otherwise be eligible to
receive grant money from the Fund. The Conservation Easement shall convey such rights and
establish such restrictions on use as may be deemed by the Fund, the State, or any third party
designee necessary to accomplish the purposes set out in Exhibit A and indemnities satisfactory to
the Fund; therefore Grantee covenants that it will manage the Property pursuant to the restrintians
of use contained in the Conservation Easement and to be bound by the teens thereof during the
time prior to recordation.
5.3 Tax Exempt Status,. If the Grantee is a nonprofit corporation, it shall maintain tax-
exempt status under Section 501(c)(3) of the lntemal Revenue Code of 1986, as amended (or any
successor section) and the regulations promulgated thereunder (the "laaternal Revenue Code's and
shall notify .the Fund upon any change in its status under the Internal Revenue Code prior to all
Grant funds being disbursed to Grantee.
5.4. No Miti atian. , Grantee shall not use the Property or any portion thereof to satisfy
compensation mitigation requirements under 33 U.S.C. § 1344 or N.C.G.S.143-214.11.
5.5 ections. The Grantee shall pemut representatives of the Fund to visit the
Property and any ether premises of the Grantee to examine any property purchased with the Grant
funds and to review the activities of the Grantee pursuant to the Giant, including books and records
in any way related to the Giant or the Property.
5.6. Retention O eratio Maintenance and Use.
(a) Grantee agrees to carry out acquisition of the Property as approved by the
Fund. The Property descriptions, purpose, schedules, scope of work and budgets set out in Exhibit
A and accompanying or related plans, specifications, estimates, procedures and maps submitted to
the Fund by the Grantee are the foundation of this Grant Agreement. Only changes deemed non-
material in type at the discretion of the Executive Director of the Clean Water Management Trust
-~ ~ Fund may be made without the consent of the Clean Water Management Trust Fund Board of
Trustees. ~ - ~ .
(b) Property acquired, developed or improved with grant assistance from the
Fund shall be used for the purposes identified in the Conservation Easement and Grantee hereby
agrees to file or record such restrictions as may be required to assure such continued. use.
(c) The Grantee shall not sell or transfer the Property or any interest therein, and
shall not incur, assume, or suffer to exist any lien upon or with respect to the Property without
disclosing to the prospective buyer the Conservation Easement and the obligations of Grantee and
limitations on use of the Property.
(d) Property, acquired, developed or improved for public use with Grant
assistance that is open for entry and use by the public shall be open to entry and use equally by all
Orange Country 99A-017 Contract.doc 12/07/99 9:32 AM 5
23
persons, regardless of race, color, creed, national origin, or residence, subject to reasonable
published rules governing use of the Property consistent with this Grant Agreement.
(e) The Grantee shall impose reasonable linuts on the type and extent of use of
areas and facilities acquired ar developed with Grant assistance when such limitations are necessary
for maintenance or preservation, including limitations on the number of persons using an area or
facility. All limitations shall be in accord with the applicable provisions of the Conservation
Easement.
5.7. Final R ort. The Grantee shall submit a final report within 90 days of the
conclusion of the Property Acquisition. Such final report shall include:
(a) documents, reports or other evidence, including photographs necessary, if
any, to verify that the Property Acquisition, has been concluded in compliance with this Grant
Agreement;
(b) a full closing statement and financial report on the Property Acquisition, and
(c) a copy of the Grantee's financial and compliance audits.
5.8. Sx_~n ga e. Grantee agrees, at its cost, to post visible signs along boundaries of the
Property, satisfactory to the Fund, that acknowledge participation of the Fund in the purchase and
protection of the Property and that the Property will rem~;n in its protected state,
5.9. R aired Accountin for Non-Profit Co rations If the Grantee is a non-profit
corporation and receives between $15,000 and $300,000 in funds from the State within any fiscal
yeaz, the Grantee shall provide a sworn accounting of receipts and expenditures of State funds in a
form approved by the State Auditor. This accounting must be attested to by the treasurer. of the
Grantee and one other authorizing officer. The accounting must be filed within six months after the
end of Grantee's fiscal year in which State funds were received. If the Grantee receives more than
$300,000 in funds from the State within any fiscal year, the Grantee shall file with the State Auditor
and each funding agency its audited financial statements in accordance with the standards, format
and other requirements prescribed by the State.
5.10. Additional, RecLuirements. Grantee shall comply with all legal requirements
applicable to the use of the Grant funds.
5.11. Publici To the extent possible, the Grantee will use its best efforts to
appropriately publicize the project's water quality benefits to the general public, local
government and state representatives, including the role of the Fund in the funding and
development of the project.
Cranga County 99A-017 Contract.doc 12/07/99 9:32 AM 6
24
SECTION VI
Representations and Warranties
In order to induce the Fund to enter into this Chant Agreement and to make the Grant as herein
provided, the Grantee, after reasonable inquiry, makes the following representations, warranties and
covenants, which shall remain in effect after the execution and delivery of this Grant Agreement
and any other documents required hereunder, any inspection or examinations at any time made by
ar on behalf of the Fund, and the purchase of the Property by the Grantee:
d.l. No~ Actions. There are no actions, suits, ar proceedings pending, or to the
la~,owledge of the Grantee threatened, against or affecting the Grantee before any court, arbitrator,
or governmental ar administrative body or agency which might affect 'the Grantee's ability to
observe and perform its obligations under this Grant Agreement. .
6.2. Validity of Grant„ Documents. Upon execution and delivery of items required
hereunder, this Giant Agreement and the other grant documents and items required hereunder will
be valid and binding agreements, enforceable in accordance with the terms thereof.
6.3. No Untrue Statements. Neither this Grant Agreement nor any information,
certificate, statement, or other document fiirnished by Grantee in connection with the Grant,
contains any untrue statement of a material .fact or omits disclosure of a material fact which affects
the Property, the Conservation Easement ar the ability of the Grantee to perform this Grant
Agreement.
fi.4. Zoning. The present and proposed use of the Property, including, without
limitation, the purpose of the Conservation Easements is in compliance with all zoning ordinances,
and all municipal and other governmental. and regulatory approvals have been or will be obtained
for the use and for operation of the Property according to this Grant Agreement.
. 6.5. Environmental Condition of Pm The Grantee warrants, represents and
covenants to the Fund that to the best of its knowledge after appropriate inquiry and investigation:
(a) the Property is and at all times hereafter will continue to be in full compliance with all federal,'
state and local environmental laws and regulations, and (la) as of the date hereof theme aze no
hazazdous materials, substances, wastes or other environmentally regulated substances (including,
without limitation, any materials containing asbestos) located on, in or under the Property or used
in connection- therewith, and that there is no environmental condition existing an the Property that
may prohibit or impede use of the Property for the purposes set forth in this Grant Agreement, and
the Grantee will not allow such uses or conditions.
6.6. Access. There is legal public access to the Property from a public roadway.
Orange County 99A-017 Contract,dac 12/07/99 9:32 AM 7
zs
SECTION VII
Events of Default
T'he happening of any of the following, after the expiration of any applicable cure period
without the cure thereof, shall constitute an event of default ("Even#(s) of Default") by the Grantee
of its obligations to the Fund and shall entitle the Fund to exercise all rights and remedies under this
Grant Agreement and as otherwise available at law or equity:
7.1. Properly , Unsuitable. A determination by the Fund, prior to 'the Closing of the
Properly Acquisition, that the Property i$ unsuitable for the purpose(s) for which this Giant
Agreement is made.
7.2. Unsuitable Use: The Property is used in a manner materially inconsistent with the
purposes of this Grant Agreement or the Conservation Easement.
7.3. Default in Performance. The default by the Grantee in the observance or
performance of any of the terms, conditions or covenants of this Gracrt Agreement, including,
without limitation, a failure to satisfy any condition precedent to disburseament or reimbursement
set forth in Sections lI, IQ,'or IV herein; provided, however, that no such default shall occur until
the Grantee has been given written notice of the default and thirty (30) days to cure have elapsed,
7.4. Mi resentation. If any representation or warranty made _ by the Grantee in
connection with the Grant ar any infomsation, certificate, statement or report heretofore ar hereafter
made shall be untrue or misleading in any material respect at the time made.
7.5. Eligibility of Grantee. If Grantee ceases to be qualified to receive Grant funds or is
dissolved or otherwise ceases to exist.
SECTION VIII
The Fund's Ri t$ and Remedies
If an Event of Default shall occur, the Fund shall have the following rights and zemedies, all
of which are exercisable at the Fund's sole discretion, and are cumulative, concurrent and
independent rights:
$.1. Default Prior to Closing. If any Event of Default occurs prior to Closing, the Fund
may, at its discretion, suspend and%or terminate all obligations of the Fund hereunder and Grantee
shall immediately refund all money previously paid to the Grantee under this Grant Agreement If
in the judgement of the Fund, such failure was due to no fault of the Grantee, amounts required to
resolve at minimum costs any irrevocable obligations properly incutxed by Grantee shall, in the
discretion of the Fund, be eligible for reimbursement under this Grant Agreement.
8.2. Default Sub uent to Closin . (a) If an Event of Default occurs subsequent to
Closing, and 1) the Fund or State have received the Conservation Easement over the Property at
Orange County 99Aw017 Contract.doc 12/07/99 9:32 AM 8
26
Closing and 2) the Property has not been dedicated pursuant to Section 5.1 hereof; the Fund may, at
its discretion elect either of the following remedies:
(i) Suspend and/or terminate all obligations of the Fund hereunder and
the Grantee shall immediately refund to the Fund all money previously paid to the Grantee under
this Grant Agreement, in which case the Fund shall return to the Grantee the executed original
Conservation Easement if it has not been accepted by the State and recorded, or, if it has been
recorded, shall leave the State release, remise and quitclaim to the Grantee any of the State's right
title and interest in the Conservation Easement and the Property, or
(ii) Seek to obtain title to preserve or protect its interest in the Property,
in which case the Fund or State shall be entitled to maintain and enforce its rights under the
Conservation Easement and to obtain title to the Property, in which case the Fund shall have, na
right to receive any reimbursement, refund or repayment of any money paid Grantee under this
Grant Agreement.
(b) If an Event of Default occ~rrs subsequent to Closing, and 1) a third party has
received the Conservation Easement, and/or 2) the Property has been dedicated pursuant to Section
S.1 hereof, the Fund and State may seek to obtain title to preserve or protect its interest in the
Property, and the Grantee shall convey and transfer to the Fund, .the State or designee by general
warranty deed, free and clear of any liens, charges ar encumbrances that would materially affect the
use of the Property as set forth in the Conservation Easement, all its underlying fee simple title to
the Property, in which case the Fund sha11 have no right to receive any reimbursement, refund, ar
repayment of any money paid Grantee under this Chant Agreement.
8.3. Nonwaiver. No delay, forbearance, waiver, or omission of the Fund to exercise any
right, power or remedy accruing upon any Event of Default shall exhaust ar impair any such right,
power or remedy or sha11 be construed to waive any such Event of Default or to constitute
acquiescence therein. Every right, power and remedy given to the Fund may be exercised from .
time to time and as often as maybe deemed expedient by the Fund.
SECT'lON TX
Miscellaneous
The following conditions shall be applicable to this Grant Agreement:
9.1. Modification. This Grant Agreement may be rescinded, modified ar amended only
by written agreement executed by all parties hereto.
9.2. Benefit. This Grant Agreement is made and entered into for the sole protection and
benefit of the Fund, the State and the Grantee, and their respective successors and assigns, subject
always to the provisions of Section 9.7 hereof. Except for the State, there shall be na third party
beneficiaries to this Grant Agreement.
Orange County 99A~-017 Gontract.doc 12/07/99 9:32 AM 9
z7
9.3. Further Assurance. In connection with and after the disbursement of Grant funds
under this Grant Agreement, upon the reasonable request of the Fund, the Grantee shall execute,
acknowledge and deliver ar cause to be delivered all such further documents and assurances, and
comply with any other requests as may be reasonably required by the Fund or otherwise appropriate
to carry out and effectuate the grant contemplated by this Grant Agreement and the purposes of the
Conservation Easement.
9.4. Compliance„b,~! G'thers. The Grantee shall be responsible for compliance with the
terms of this Grant Agreement by any political subdivision or public agency to which funds are
transferred pursuant to this Grant. Agreement. Failure by such organization to comply shall be
deemed failure by the Grantee to comply with the terms of this Grant Agreement.
9.5. No Discnm;nAtion. The Grantee shall assure that no person will be excluded from
participation in, be denied the benefits of, or be subject to discnm~ngtion under any program or
activity covered by this Grant Agreement solely an the grounds, race, color, age, religion, sex or
national origin.
9.6. ADA Compliance. The Americans with Disabilities Act 1990 as it may be
amended from time to time, and the rules and regulations promulgated in connection therewith (the
"ADA") makes it unlawful to discriminate in employment against a qualified individual with a
disability and outlaws discrimuaation against individuals with disabilities in State and local
government services and public accommodations. The Grantee agrees ta, and agrees to cause its
principals and subcontractors to comply with, the ADA.
9.7. Assam. The terms hereof shall be binding upon and inure to the benefit of the
successors, assigns, and personal representatives of the parties hereto; provided, however, that the
Grantee may not assign this Grant Agreement or any of its rights, interests, duties or obligations
hereunder or any Grant proceeds ar other moneys to be advanced hereunder in whole or in part
without the prior written consent of the Fund, which may be withheld for any reason and. that any
such assignment (whether voluntary or by operation of law) without said consent shall be void.
9.8. lyo Partnership. Joint Venture. or Agency. This Grant Agreement shall not in any
way be intezpreted or construed as making the Fund a partner ar joint venturer with the Grantee, nor
as making the Grantee agent or representative of the Fund. The Grantee agrees that neither it nor its
agents or employees are or shall be agents or employees of the Fund. In no event shall the Fund be
liable for debts or claims accruing or arising against the Grantee.
9.9. ~. The Grantee agrees, to the fullest extent permitted by law, to release,
defend, protect, indemnify and hold harmless the State, the Fund, its Tnastees, employees and
agents against claims, losses, liabilities, damages, and costs, including reasonable attorney fees,
which result form or arise out of: (1) damages or injuries to persons or property caused by the
negligent acts ar omissions of Grantee, its employees, or agents in use or management of the
Property; or (In use or presence of any hazardous substance, waste or other regulated material in,
under or on the Property. The obligations under this Section are independent of all other rights or
Orange Country 99A-017 Contract.doc 12/07/99 9:32 AM ~ 10
28
obligations set forth herein..Thus indemnity shall survive the disbursement of the Grant funds, as
well as any tenxui~nation of this Grant Agreement
9.10. Govemin Law Constnzction and jurisdiction. This Grant Agreement and the other
Grant Documents and all matters relating thereto shall be governed by and construed and
interpreted in accordance with the laws of the State of North Cazolina, notwithstanding the
principles of conflicts of law. The headings and section numbers contained herein are for reference
purposes only. The terms of this Grant Agreement shall be construed according to their plain
meaning, and not strictly construed for or against either party hereto. The Grantee hereby submits
to the jurisdiction of the state and Federal courts located in North Carolina 'and agree that the Fund
may, at its option,~enforce its rights under the Grant Documents in such courts. The parties hereto
intend this document to be an instrument executed under seal. The Fund and any party that is an
individual, partnership or limited liability company hereby adopts the ward "SEAL" following
his/her signature and the name of the Fund or partnership or limited liability company as his/her/its
legal seal.
9.11. Savings Clause. Invalidation of any one or more of the provisions of this Grant
Agreement, . or portion thereof, shall in no way affect any of the other provisions hereof and
portions thereof which shall remain in full force and effect.
9.12. Notices. All notices, requests or other communications pemutted ox required to be
made under this Grant Agreement ar 'the other documents contemplated by this Grant Agreement
shall be in writing, signed by the party giving such notice to the address set forth below, and shall
be deemed given three (3) business days next following the date when deposited in the mail,
postage prepaid, registered ox certified mail, return receipt requested, to the other party hereto at the
address indicated below or such other addresses as such party may est~.blish in writing to the other
party in the *„an~~ provided hereunder for notices:
If to the Fund: Clean Water Management Trust Fund
2313-B Executive Pazk Circle
Greenville, NC 27834
Attr~: Roy Carlton
If to the Grantee: Orange County Environment and Resauxce Conservation Dept.
PO Box 8181
.Hillsborough, NC 27278
Attn: Rich Shaw
9.13 Additional Remedies. Except as otherwise specifically set forth herein, the rights
and. remedies provided hereunder shall be in addition to, and not in lieu of, all other rights and
remedies available in connection with this Giant Agreement.
9.14 Survivorship. Where any representations, warranties, covenants, indemnities or
other provisions contained in this Grant Agreement by its context or otherwise, evidences the intent .
of the pazties that such provisions should survive the Closing or any termination of this Grant
Orange County 99A~017 Contract.doc 12/07/99 9:32 AM 11
29
Agreement, the provisions shall survive the Closing or any such termination. Without limiting the
generality of the foregoing, the parties specifically aclaiowledge and agree that the provisions of
Sections V, VI, VII, VIII and IX shall survive the Closing, as well as any termination of this Grant
Agreement.
9.15. Entire A Bement. This Crrant Agreement constitutes the entire agreement between
the parties hereto with respect to. the subject matter hereof. All recitals, exhibits, schedules and.
other attachments hereto are incorporated herein by reference.
[Signatures contained an next page]
Orange County 99A-01.7 Contract.doc 12/g7/99 9:32 AM
~o
IN WITNESS WHEREOF, the undersigned }nave executed this Grant Agreement under seal.
through their duly authorized officers or representatives, to be effective the day and yeaz first above
written.
ATTEST: GR~~;
By:
Title: ~ Title•
~5~~
FUND:
NORTH CAROLINA CLEAN WATER
MANAGEMENT TRUST FUND BOARD OF
• TRUSTEES (SEAL) .
sy:
Joseph M. Hester, Jr., Chai,~man
Orange County 99A-017 Contract.doc 12/07/99 9:32 AM
3l.
EXHIBIT A
[Add Description of Properly]
[Add Purposes, Schedules, Scope of Work, Budgets and Approved Land Acquisition Casts]
Orange County 99A-017 Contract.doc 12/07/99 9:32 AM
Clean Water Management Trust Fund
Grant Agreement No. 1999A-017
Orange County Property Acquisition
Exhibit A
Water Ouality Obi ectiv~: The water quality objective of this
project is to establ~.sh and maintain 300-feet wide riparian
buffers along a section of the Eno River (Corporation Lake),
McGowan Creek, and an unnamed tributary to the Eno which flows
through the property and into Corporation Lake, a WS-II public
water supply.
32
Project Description: Orange County will acquire a &2.65 acre
parcel of land that includes property located within 400 feet of
the Corporation Lake public water supply impoundment located on
the Eno River. McGowan Creek, a main tributary of the Eno, is
just north of the property and an unnamed tributary of the Eno
traverses the property. Three hundred feet wide riparian buffers
within the 62.65 acre parcel to~be purchased will buffer the
Eno_, McGowan Creek and the unnamed tributary. These riparian
buffers will be placed under a permanent conservation easement.
Property Description: The parcel of land to be purchased is part
of Duke Forest (Hillsboro Division) and owned by Duke
University. The parcel is located in central Orange County,,
north of US 70 West and adjacent to property owned by the
Orange-Alamance Water System, Inc., that contains Corporation
Lake. The 62.65 acre parcel to be purchased is identified as
Orange County Tax Map Block Lot (TMBL) Number 3.41..1.4 and PIN
9855-50-8167. The 62.65 acre parcel is further identified and
depicted, on the March 2000 Callemyn-Parker, Inc. plat of survey
titled "Property surveyed for Orange County Environment &
Resource Conservation Department" which plat is recorded at Plat
Book Page of the Orange County Registry. The
property subject to the conservation easement to be conveyed to
the State of North Carolina in consideration of the grant funds
is that portion of the 62.65 acre parcel totalling 31.91. acres
designated on the recorded plat as "SUBJECT TO CONSERVATION
EASEMENT AGREEMENT BETWEEN ORANGE COUNTY, NORTH CAROLINA AND THE
STATE OF NORTH CAROLINA."
Project Budget.: The project budget consists of approximately
$150,000 from Orange County and $143,000 from the CWMTF. Six
Thousand Dollars ($6,000) of the money received from CWMTF will
be used for surveying and legal/administrative fees; $137,000
will be applied to the land purchase.
33
Proiect Timeline: The boundary survey, appraisal and
environmental report (Phase I assessment) will be completed on
or about March 21, 2000. The grant agreement will be presented
to the Orange County Board of Commissioners for approval on
March 21, 2000. At that same meeting, the Soard of Commissioners
will be asked to approve the installment purchase of the 62.65
acre parcel of land. The closing for the purchase is scheduled
for March 31., 2000. One Hundred Forty-three Thousand Dollars
($143,000) of the $280,000 purchase price will be paid at
closing with-the balance paid in two equal annual installments
plus interest. The first such installment will be due on March
31, 2001. The final installment will be due on January 31, 2002.
lsg:orangecounty\dukepropexhP,.doc
Attachment F
34
(TEMPORARY UN'TII, CON5ERVATION EASF~N'T' IS RECORDED)
Tax Parcel lD
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
DECLARATION OF COVENANTS AND RESTRTCTYONS
THESE RESTRICTNE. COVENANTS ("Restrictive Covenants") are made on
this day of ' ~'~ ~ ~ 1 , by and between ORANGE COUNTY, a local
government, with an address at ("Grantor") and the STATE OF NORTH CAROLINA,
with its address c/a State Property Office, 1321 Mail Service Center, Raleigh, NC 27699-1321
("State" or "Grantee"), acting solely through the North Cazolina Clean Water Management
Trust Fund, with its address at 2313-B Executive Park Circle, Greenville, NC 27834
("Fund").
RECTTALS & CONSERVA'TxON PURPOSES
A. Grantor is the sole owner in fee simple of the property being approximately 63 acres
in Orange County, State of North Carolina and being all of that certain tract as more pazticulazly
described in Exhibit A attached hereto and by this reference incorporated herein ("Property"); and
B. The Clean Wataz Management Trust Fund ("Fund") is an agency of the State of
North Cazolina ("State") and is authorized by Article 13A, Chapter 113 of the, General Statutes of
North Cazolina ("N.C.G.S.") to finance projects and to acquire land and interests in land, including
conservation easements for riparian buffers for the purposes of providing environmental protection
for surface waters and urban drinldng water supplies and establishing a network of riparian
greenways for environmental, educational, and recreational uses; and
C. Grantor has received .a grant from the Fund for acquisition of the Property in
consideration of which Grantor has agreed that the Property will "be conserved and managed in a
manner that will protect the quality of the waters of the Neuse River and otherwise promote the
public purposes authorized by Article 13A, Chapter 113 of the N.C.G.S.
D. Ill order to ensure such conservation and management of the ,Property, the Fund
requires Grantor to grant State a conservation easement, which must be approved by the Council of
State and duly recorded (the "Conservation Easement'; and
35
E. Grantor has delivered to the Fund said Conservation Easement, however it has not
been approved by the Council of State and the Fund wishes to proceed with the Giant prior to, and
conditional upon, such approval and subsequent recordation of the Conservation Easement, and
F. Fund and State require Grantor to record these restrictive covenants to ensure
appropriate conservation and management of the Property until such time as the Conservation
Easement is recorded.
NOW, THEREFORE, in consideration of the premises and the mutual benefits recited
herein, together with other good and valuable consideration to Grantor and to the State as protector
of the public interests it promotes, the Grantor hereby adopts and. declares the Property subject to
the restrictions hereinafter set forth, the purposes which are to provide environmental protection for
surface waters. and to protect the wildlife and nat<nal. heritage values of the Property,
ARTICLE I. DURATION OF RESTRICTIVE COVENANTS
These foregoing covenants and restrictions shall be construed ti4 be covenants running with the land
and, with any amendments made pursuant to Section VI.E. herein, shall be binding and effective
until January 1, 2095, at which time they shall be automatically extended for successive periods of
five (S) years; provided that these restrictions and covenants maybe terminates at any time by
recordation of an instrument oftennination executed by Grantor and State ar by recordation by
Grantor of a conservation easement covering the Property and naming as grantee the State or its
designee.
ARTICLE II. RIGHTS RESERVED TO GRAN'T'OR
Grantor reserves certain rights accruing from ownership of the Property, including the right
to engage in or permit others to engage in uses of the Property that are not inconsistent with the
purpose(s) of these Restrictive Covenants. The following rights are expressly reserved:
ARTICLE III. PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes of these Restrictive
Covenants is prohibited. The Property shall be maintained in its natural, scenic, wooded and open
2
3b
condition and restricted from any development ar use that would impair ar interfere with the
conservation purposes of these Restrictive Covenants set forth above.
Without limiting the generality of the foregoing, the following activities and uses are
expressly prohibited or restricted.
A. Industrial and. Commercial Use. Industrial and commercial activities and any right
of passage for such purposes are prohibited..
B. A 'cultural Timber Harvestin and Horticultural Use. Agricultural;
timber harvesting, grazing; horticultural and animal husbandry operations are prohibited.
C. Disturbance of Natural Features Plants and Animals. There shall be no cutting or
removal of trees, ar the disturbance of other natural features except for the following: (1) as
incidental to boundary marking, fencing, signage, construction and maintenance of nature trails and
public access allowed . heireunder, (2) selective ,cutting and prescribed burning or clearing of
vegetation and the application of mutually approved pesticides for fire containment and protection,
disease control, restoration of hydrology, wetlands enhancement and/or control of non-native
plants; subject however, to the prior approval of Fund, and (3) hunting and fishing pursuant to
applicable rules and regulations.
D. Construction of Buildin sand Recreational Use. There shall be no constructing or
placing of any building, mobile home, asphalt or concrete pavement, billboard or other advertising
display, antenna., ,utility pole, tower, conduit, line, pier landing, dock or any other temporary oz
permanent structure ar facility on ar above the Property except for. the placing and display of: no
trespassing signs; local, state or federal trafi~.c or similar information signs; for sale or lease signs;
fencing; signs identifying the conservation values of the Property, and/or signs identifying the
Grantor as owner of the Property, the conservation purposes to which it is restricted and that the
State is the source of funding for the acquisition of this Property; educational and interpretative
signs; identification labels; or any other similar temporary or permanent signs reasonably
satisfactory to the Fund.
E. Mineral Use Fxcavatio Dred ' ,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 for the purpose of
combating erasion or incidental to any conservation management activities otherwise permitted in
these Restrictive Covenants.
F. Wetlands and Water 4uality. There shall be no pollution or alteration of water
bodios and no activities that would be detrimental to water purity or that would alter natural water
levels, drainage, sedimentation and/or flow in or aver the Properly or into any surface waters, or
cause soil degradation or erosion nor diking, dredging, alteration, draining, filling or removal of
wetlands, except activities to restore natural hydrology or wetlands enhancement as permitted by
State and any other appropriate authorities.
37
G. Ding. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles,
appliances, or machinery, ar other materials on the Property is prohibited.
H. Conveyance and. Subdivision. The Property may not be subdivided, partitioned nor
conveyed, except in its current configuration as an entity or block ofpraperty.
ARTICLE IV. ENFORCEMENT AND REMEDIES
A. Enforcement. To accomplish the purposes of these Restrictive Covenants, Grantee
is allowed to prevent any activity on ar use of the Property that is inconsistent with the purposes of
these Restrictive Covenants and to require the restoration of such areas or features of the Property
that may have been damaged by such activity or use. Upon any breach of the terms of these
Restrictive Covenants by Grantor that tames to the attention of the State, the State shall notify the
Grantor in writing of such breach. The Grantor shall have ninety (90) days after receipt of such
notice to begin undertaking actions that are reasonably calculated to correct promptly the conditions
constituting such breach. If the breach remains uncured after ninety (90) days, the State may
enforce these Restrictive Covenants by appropriate legal proceedings including daanages, injunctive
and other relief. The State shall also have the power and authority: (a) to prevent any impairment
of the Property by acts which may be unlawful or in violation of these Restrictive Covenants; (b) to
otherwise preserve or protect its interest in the Property; ar (c) to seek damages from any
appropriate person or entity. The rights and remedies of the State provided hereunder shall be in
addition to, and not in lieu o~ all other rights and remedies available to the State in connection with
this Declaration of Covenants and Restrictions, including, without limitation, those set forth in the
Grant Agreement under which these Restrictive Covenants were obtained.
B. ection. State, its employees and agents and its successors and assigns, have
the right, with reasonable notice, to enter the Property. at reasonable times for the purpose of
inspecting the Property to determine whether the Grantor, Grantor's representatives, or assigns are
complying with the terms, conditions and restrictions of these Restrictive Covenants. .
C. Acts Beyopd Grantor's Control. Nothing contained in these Restrictive
Covenants shall be construed to entitle State to bring any action against Grantor for any injury or
change in the Property caused by third parties, resulting from causes beyond the Grantor's control,
including, without limitation, fire, flood, storm, and 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 property or harm to the Properly resulting from such causes.
D. Cost of Enforcement Any cost incurred by Grantee in enforcing the terms of these
Restrictive Covenants against Grantor, including, without limitation ,any cost of restoration
necessitated by Grantor's acts or omissions in violation of the terms of these Restrictive Covenants,
shall be borne by Grantor.
E. Na Waiver. Enforcement of the Restrictive Covenants shall be at the discretion
of the Grantee and any forbearance by Grantee to exercise its rights hereunder in the event of any
breach of any term set Earth herein shall not be deemed or construed to be a waiver by Grantee of
4
38
such term or of any subsequent breach of the same or of any other term of these Restrictive
Govenants or of Grantee's rights. No delay or omission by Grantee in exercise of any right or
remedy shall impaix such right or remedy or be construed as a waiver.
ARTICLE V. DOCUMENTATION AND TITLE
A. Pra Condition. The parties acknowledge that the Property is currently
with no improvements other than as described in Fxbibit A and easements and
rights of way of record,
B, Title. The Grantor covenants and represents that the Grantor is the sole owner and
is seized of the Property in fee simple and has good right to establish ~ the aforesaid; that there is
legal access to the Property, that the Property is free and clear of any and all encumbrances, except
easements of record, none of which would nullify, impair or limit in any way the terms or effect of
these Restrictive Covenants; Grantor shall defend its title against the claims of all ,persons
whomsoever, and Grantor covenants that the State shall have the benefit of all of the benefits
derived from and arising out of the aforesaid Restrictive Covenants.
ARTICLE VI. MISCELLANEOUS
A. 5ubse uent Transfers. Grantor agrees for itself, its successors and assigns, to notify
State in writing of the names and addresses of any party to whom the Property, or any part thereof,
is to be transferred at or prior to the time said transfer is consum,,,~~d, ~y transferee or assignee
of the Property shall take title subject to these Restrictive Covenants and subject to Grantor's
obligation to grant State the conservation easement as set forth herein, shall perform all such acts as
shall be necessary to effect the transfer. Grantor, for itself, its successors and assigns, further agrees
to make specific reference to these Restrictive Covenants in a separate paragraph of any subsequent
lease, deed ar other legal instrument by which any interest in the Property is conveyed.
B. Conservation Pun~ose.
(1) ~ The parties hereto recognize and agree that the benefits of these Restrictive
Covenants are in gross and assignable, provided, however that the Grantee hereby covenants and
agrees, that in the event it transfers or assigns its interest in these Restrictive Covenants, the
organization receiving the interest will be a qualified organization as that term is defined in Section
170(h)(3) of the Internal Revenue Code of 1984 (ar any successor section) and the regulations
promulgated thereunder, which is organized or operated primarily for one of the conservation
purposes specified in Section 170(h}(4xA) of the Internal Revernaee Code, and the Grantee further
covenants and agrees that the terms of the transfer or assignment will be such that the transferee or
assignee will be required to continue to carry out in perpetuity the conservation purposes that the
contribution was originally intended to advance, set Earth in the Recitals herein.
(2) Unless otherwise specifically set Earth in these Restrictive Covenants,
nothing herein shall convey to ar establish for the public a right of access aver the Property.
5
39
C. Recording. State shall record this instrument and any amendment hereto in timely
fashion in the ofbcial records of Orange County, North Carolina, and may re-record it at any time
as may be required to preserve its rights or the rights and interests of the State.
D. Notices. All notices, requests or other communications pemautted or required by this
Agreement shall be sent by registered or certified mail, return receipt requested, addressed to the
parties as set forth above, or to such other addresses such party may establish in writing to the
other. All such items shall be deemed given, or made three (3) days after being placed in the United
States mail as herein provided. In any case, where the temis of these Restricdve Covenants require
the consent of any party, such consent shall be requested by written notice. Such consent shall be
deemed denied unless, within ninety (9A) .days after receipt of notice, a written notice of approval
and the reason therefore has been mailed to the party requesting consent,
E. Amendments. Grantor shall not amend these Restrictive Covenants except with the
consent of the State. Any amendment(s) shall be effective upon recording in the public records of
Orange County, North Carolina.
F. Environmental Condition of Pro The Grantor warrants, represents and
covenants to the State that to the best of its knowledge after appropriate inquiry and investigation
that: (a) the Property described herein is and at all times hereafter will continue to be in full
compliance with all federal, state and local environmental laws and regulations, and (b) as of the
date hemof there are no hazardous materials (including without limitation any materials) containing
asbestos) located on, in or under the Property or used in connection therewith, and that there is na
environmental condition existing on the Property that may prohibit or impede use of the Property
for the purposes set forth herein and that Grantor will not allow any such uses or conditions.
G. Entire A ent. This instrument and the Conservation Easement sets forth the
entire agreement of the parties with respect to the Restrictive Covenants and supersedes all prior
discussions, negotiations, understandings or agreements relating to the Restrictive Covenants. If
any provision; or portion thereof, is found to be invalid, the remainder of the provisions of these
Restrictive Covenants and portions thereof, and the application of such provision and 'portion
thereof to persons or circumstances other than those as to which it is found to be invalid, shall not
be affected hereby, and shall be .fully valid and enforceable to the fullest extent and duration
allowed by applicable law. The party(ies) hereto intend this document to be an instrument executed
under seal. if any party is an individual, patnership or limited liability company, such party hereby
adopts the word "SEAL" following his/her signature and, the name of the partnership or limited
liability company as his/her/its legal seal..The Recitals set forth above and the Exhibits attached
hereto are incorporated herein by reference.
H. Indemnity. The Grantor agrees to the fullest extent permitted by law, to defend,
protect, indemnify and hold harmless the State from and against all claims, actions, liabilities,
damages, fines, penalties, costs and expenses suffered as a direct or indirect result of any violation
of any federal, state, or local environmental or land use law or regulation or of the use or presence
of any hazardous substance, waste or other regulated material in, on or under the Property.
4U
I. Tnt ~retation. These Restrictive Covenants shall be construed and interpreted under
the laws of the State of North Carolina, any ambiguities herein shall be resolved so as to give
maximum effect to the conservation purpose sought to be protected herein
J. Patties. Every provision of these Restrictive Covenants that apply to the Grantor or
to the Grantee shall likewise. apply to their respective successors, assigns and grantees and all other
successors in interest herein.
K. Merger. The parties agree that the terms of these Restrictive Cove~aants shall
survive any merger of the fee and easement interest in the Property.
L. Subsequent Liens. No provisions of these Restrictive Covenants shall be
construed as impairing the ability of Grantor to use this Property for collateral far borrowing
purposes, provided that any mortgage or lien arising therefrom shall be subordinated to these
Restrictive Covenants.
IN WITNESS WHEREOF, Grantor, by authority duly given, has hereunto caused these
presents to be executed by their respective officers and its seal afFixed, to be effective the day and
year first above written.
GRAN'T'OR:
By:
Title:
ATTEST:
Title:
[SEAL]
41
sTATE of _
covNTY of
I, . _ _ ... ,Notary Public, do hereby certify that
Witness my }aaaand and notarial seal, this the day of ~ ,19 .
Notary Public .
My commission expires '
STATE OF NORTH CAROLINA
COUNTY
The foregoing certificate(s) of Notaries Public, are certified to be
correct.
This day of 199
Regitster of Deeds
This instrument prepared by and should be returned to:
s
42
Clean Water Management Trust Fund
Grant Agreement No. 1.999A-017
Orange County Property Acquisition
Exhibit A
Wader Ouality Objective: The water quality objective of this
project is to establish and maintain 300-feet wide riparian
buffers along a section of the Eno River (Corporation Lake),
McGowan Creek, and an unnamed tributary to the Eno which flows
through the property and into Corporation Lake, a WS,-TT public
water supply.
P~o~ect Description: Orange County will acquire a 62.65 acre
parcel of land that includes property located within 400 feet o£
the Corporation Lake public water supply impoundment located on
the Eno River. McGowan Creek, a main tributary of the Eno, is
justi north of the property. and an unnamed tributary of the Eno
traverses the property. Three hundred feet wide riparian buffers
within the 62.65 acre parcel to be purchased wild, buffer the
Eno, McGowan Creek and the unnamed tributary. These riparian
buffers will be placed under a permanent conservation easement.
Pro ert Descri tion: The parcel of land to be purchased is part
of Duke. Forest (Hillsboro Division) and owned by Duke
University. The parcel is located in central Orange County,
north of US 70 West and adjacent to property owned by the
Orange-Alamance Water System, Inc.,, that contains Corporation
Lake. The 62.65 acre parcel to be purchased is identified as
Orange County Tax Map Block Lot (TMBL) Number 3.41..14 and PTN
9855.-50-8167. The 62.65 acre parcel is further identified and
depicted on the March 2000 Callemyn--Parker, Tnc. plat of survey
titled "Property surveyed for orange County Environment &
Resource Conservation Department" which plat is recorded at Plat
Book Page of the orange County Registry. The
property subject to the conservation easement to be conveyed to
the State of North Carolina in consideration of the grant funds
is that portion of the 62.65 acre parcel totalling 31.91 acres
designated on the recorded plat as "SUBJECT TO CONSERVATION
EASEMENT AGREEMENT BETWEEN ORANGE COUNTY, NORTH CAROLINA AND THE
STATE OF NORTH CAROLINA."
Project Budget: The project budget consists of approximately
$150,000 from Orange County and $143,000 from the CWMTF. Six
Thousand Dollars ($5,000) of the money received from CWMTF will
be used for surveying and legal/administrative fees; $].37,000
will be applied to the land purchase.
43
Project Timeline: The boundary survey, appraisal and
environmental report (Phase Y assessment) will be completed on
or about March 21, 2000. The grant agreement will be presented
to the Orange County Board of Commissioners for approval on
March 27., 2000. At that same. meeting, the Board of Commissioners
will. be asked to approve the installment purchase of the 62.65
acre parcel of land. The closing for the purchase is scheduled
for March 31, 2000. One Hundred Forty-three Thousand Dollars
($143,000) of the $280,000 purchase price will be paid at
closing with-the balance paid in two equal annual installments
plus interest. The first such installment will be due on March
31, 2001. The final installment-will be due on January 31, 2002.
lsg:orangecounty\dukepropexhA.doc
AttaC~gnt G
44
Tax Parcel ID
STATE OFNORTHCAROLINA
COUNTY OF ORANGE
CONSERVATION EASENICN"r
i ~~;
THIS CONSERVATION EASEMENT' ("Conservation Easement") is made on this
~Y of '' 1 by and between ORANGE COUNTY, a local
government, with an address at ("Grantor's and the STATE OF NORTH CAROLINA,
with its address coo State Property Office, 1321 Mail Service Center, Raleigh, NC 276991321
("State" or "Grantee"), acting solely through the. North Carolina Clean Water Management
Trust Fund, with its address at 2313-B Executive Pazk Circle, Greenville, NC 27834
C`~d'~•
RECITALS & CONSERVATION PURPOSES
A. Grantor is the sole owner in fee simple of the property -being
approximately 63 acres in Orange County, State of North Carolina and being all of that
certain tract as more particularly described in Exhibit A attached hereto and by this
reference incorporated herein ("Property"); and
B. The State. of North Carolina will be the Grantee and holder of this
Conservation easement; and;
C. Fund is authorized by Article 13A, Chapter 113 of the General Statutes of
North Carolina ("N.C.G.S.'~ to finance projects and to acquire land and interests in land,
including conservation easements for riparian buffers far the purposes of providing
environmental protection for surface waters and urban drinking water supplies and
establishing a network of riparian greenways far environmental, educational, and
recreational uses; and
D. Grantor has received a grant from the Fund for acquisition of the Property in
consideration of which Grantor has agreed that. it will be conserved and managed in a manner
that will protect the quality of the waters of the Neuse River and otherwise promote the public
purposes authorized by Article 13A, Chapter 113 ofthe N.C.G.S; and,
E. The parties hereto recognize the conservation and water quality values of the
Property in its present state as a riparian shoreline and intend that said conservation values of
the Property be preserved and maintained.
45
F. The characteristics of the Property, its current use and state of improvement
are described in Exhibit A, which is the appropriate basis for monitoring compliance with the
objectives of preserving the conservation and water quality values; the Exhibit A is not
intended to preclude the use of other evidence (e.g. surveys, appraisals) to establish the present
condition of the Property if there is a controversy over its use.
NOW, THEREFORE, in consideration of the premises and the mutual benefits recited
herein, together with other good and valuable consideration, the receipt and sufficiency of
which is hereby aclaiowiedged by the parties hereto, the Grantor hereby unconditionally and
irrevocably gives ~ grants and. conveys forever and in perpetuity to the Grantee, its successors
and assigns, and the Grantee hereby accepts, a Deed of Canservation Easement of the nature
and character and to the extent hereinafter set forth in, over, through and across the Property,
together with the right to preserve and protect the conservation values thereof as described in
the Recitals herein
The purposes of this Conservation Easement are to provide .environmental
protection for surface waters and to protect the wildlife and natiaal heritage values and it shall
be so held, maintained, and used therefore. Tt is the fiirther purpose of this Easement to prevent
any use of the Property that will significantly impair or interfere with the preservation of said
conservation values. Grantor intends that this easement will restrict use ofthe Property to such
activities as are consistent with the purposes of conservation,
ARTICLE L DURATION OF EASEMENT
This Conservation Easement shall be perpetual. It is an easement in gross,
runs with the land, and is enforceable by Grantee against Grantor, its representatives,
successors, assigns, lessees, agents and licensees. .
ARTICLE II. RIGHTS RESERVED TO GRANTOR
Grantor reserves certain rights. accruing from ownership of the Property,
including the right to engage in or permit others to engage in uses of the Property that are not
inconsistent with the purpose(s) of this Easement. All rights reserved by Grantors are reserved
for Grantors, their representatives, successors, and assigns, and are considered to be consistent
with the conservation purposes of this Conservation Easement, The following rights are
expressly reserved:
ORANGE COUNTY S9A-017 EASEM~NT.DOC 1210719911:15 AM
46
Notwithstandingthe foregoing, Grantor and Grantee have no right to agree to any activity that
would result in the termination ofthis Conservation Easement.
ARTICLE III. PROffiSZTED AND RESTRICTED ACTIVITIES
Any activity on, ar use of, the Property inconsistent with the purposes of this
Conservation Easeme~ is prohibited, .The Pmperiy shall be maintained in its natural, scenic,
wooded and open condition and restricted from any development or use that would impair or
interfere with the conservation purposes of this Conservation Easement set forth above.
Without limiting the generality of the foregoing, the following activities and uses are
expressly prohibited or restricted.
A. Industrial and Commercial Use. Industrial and commercial activities and any
right ofpassage for such purposes are prohibited.
B. A 'cultural Timber Harvestan Crrazin and Horticultural Use. Agricultural,
timber harvesting, grazing, horticultural and animal husbandry operations are prohibited.
C. Disturbance of Natural. Features Plants and Animals. There shall be na
cutting or removal of trees, or the disturbance of other natural features except for the
following: (1) as incidental to boundary marldtrg, fencing, signage, construction and
maintenance of nature trails and public access allowed hereunder, (2) selective cutting and
prescribed burning 'or cleating of veget'atian and the application of mutually approved
pesticides for fire containment and protection, disease control, restoration of hydrology,
wetlands enhancement and/or control of non-native plants; subject however, to the prior
approval of Fund, and (3) hunting and fishing pursuant to applicable rules.and regulations.
D. Construction of Bull ' and Recreational Use. There shall be no
constnu~ting or placing of any building, mobile home, asphalt or concrete pavement, billboard
ar other advertising display, antenna, utility pole, tower, conduit, line, pier t~n~' ~, dock or
any other temporary or permanent structure or facility on or above the Properly except for the
following: placing and display of no trespassing signs, local, state or federal traffic ar similar
informational signs, for sale or lease signs, fencing,, signs identifying the conservation values
of the Property, and/or signs identifying the Grantor as owner of the Property and State as
holders of this Conservation Easement and as the source of firnding far the acquisition of this
Property, educational and interpretative signs, identification labels or any other similar
temporary or permanent signs, reasonably satisfactory to the Fund.
E. Mineral, Use Excavatio bred ' There shall be na fulling, excavation,
dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other
ORANGE COUNTY 99A-0'17 EASEMENT.DOG 9?J07I9911:75 AM 3
47
materials, and no change in the topography of the land in any manner except as necessary for
the purpose of combating erosion or incidental to any conservation management activities
otherwise permitted in this Conservation Easement.
F. Wetlands and Water „.,.;ty. There shall be no pollution or alteration of water
bodies and no activities that would be detrimental to water purity or that would alter natural
water levels, drainage, sedimentation and/or flow in or over the. Property or into any surface
waters, or cause sail degradation or erosion nor diking, dredging, alteration, draining, filling or
removal of wetlands, except activities to restore natural hydrology or wetlands enhancement
as permitted by state and any other appropriate authorities.
G. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles,
appliances, or machinery, or other materials an the Property is prohibited.
H. Conve once and Subdivision. The Property may not be subdivided,
partitioned nor conveyed, except in its current configuration as an entity or block of property.
ARTICLE iV. ENFORCEMENT AND REMEDIES
A. Enforcement.. To accomplish the purposes of this Easement, Grantee is
allowed to prevent any activity on or use of the Property that is inconsistent with the purposes
of this Easement and to require the restoration of such areas or features of the Property that
may have been damaged by such activity or use. Upon any breach of the terms of this
Conservation Easement by Grantor that comes to the alteation of the Grantee, the Grantee
shall, except as provided below, notify the Grantor in writing of such breach. The Grantor
shall have ninety (90) days after receipt of such notice to confect the conditions constituting
such breach, if the breach remains uncured after ninety (90) days, the Grantee may enforce
this Conservation Easement by appropriate legal proceedings including damages, injunctive
and other relie€ The Grantee shall also have the power and authority, consistent with its
statutory authority: (a) to prevent any impairment of the Property by acts which may be
unlawful or in violation of this Conservation Easexrxent; (b) to otherwise preserve or protect its
interest in the Property; or (c) to seek damages from any appropriate person or entity.
Notwithstanding the foregoing, the Grantee reserves the immediate right, without notice, to
obtain a temporary restr ini»v order, injunctive or other appropriate relief if the breach of the
term of this Conservation Easement is or would irreversibly or otherwise materially impair the
benefits to be derived from this Conservation Easement The Grantor and Grantee
aclawwledge that under such circumstances damage to the Grantee would be irreparable and
remedies at law will be inadequate. The rights and remedies of the Grantee provided
hereunder shall be in addition to, and not in lieu of, all other rights and remedies available to
Grantee in connection with this Conservation Easerrlent, including, without limitation, those
set forth in the Grant Agreement under which this Conservation Easement was obtained.
B. action. Grantee, its employees and agents and its successors and assigns,
have the right, with reasonable notice, to enter the Property at reasonable times for the purpose
of inspecting the Property to determine whether the Grantor, Crrantor's representatives, or
ORANGE COUNTY 99A 017 EA~IT.DOG 1?J07199 71:15 AM a
48
assigns are complying with the terms, conditions and restrictions of this Conservation
Easement. -
C. Acts ~e and Grantor's Control. Nothing contained in this Conservation
Easement shall be construed to entitle Grantee to bring any action against Grantor far any
injury or change in the Property caused by third parties, resulting from causes beyond the
Grantor's control, including, without limitation, fire, flood, storm, and earth movement, ar
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 property or harm to. the
Property resulting from such causes. .
D. Costs of Enforcement, Any costs incurred by Grantee in enforcing the terms
of this Conservation Easement against Grantor, including, without limitation, any costs of
restoration necessitated- by Grantor's acts or omissions in violation of the terms of this
Conservation Easement, shall be borne by Grantor.
E. No Waiver. Enforcement of this Easement shall be at the discretion of the
Grantee and any forbearance by Grantee to exercise its rights hereunder in the event of any
breach of any term set forth herein shall not be deemed or construed to be a waiver by Grantee
of such term or of any subsequent breach of the same or of any oilier term of this easement or
of Grantee's rights. No delay or omission by Grantee in exercise of any right or remedy shall
impair such right ar remedy or be construed as a waiver.
ARTICLE V. DOCUMENTATION AND TITLE
A: Properi~Condition. The parties acknowledge that the Property is
,< ~ with no improvements other than as described in Exhibit A and" easements
and rights of way of record.
B. Title. The Grantor covenants and represents that the Grantor is the sole owner
and is seized of the Property in fee simple and has good right to grant and convey the
aforesaid Conservation Easement; that there is legal access to the Property, that the Property is
free and clear of any and all encumbrances, except easements of record, none of which would
nullify, impair or limit in a~ way the terms ar effect of this Conservation Easement; Grantor
shall defend its title against the claims of all persons whomsoever, and Grantor covenants that
the Grantee shall have the use of and enjoy all of the benefits derived from and arising out of
the aforesaid Conservation Easement.
ARTICLE VI. NIISCELLANEOUS
A. Subs uent Transfers. Grantor agrees for itself, its successors and' assigns, to
notify Grantee in writing of the names and addresses of any party to whom the Property, ar
any part thereof, is to be transferred at or prior to the time said transfer is consummated.
Grantor, for itself, its successors and. assigns, further agrees to make specific reference to this
ORANGE COUNTY 99d~147 Ees~~rr_nAC~ ~arrrnaa i~1•_~~ ene
49
Conservation Easement in a separate paragraph of any subsequent lease, deed or other legal
instrument by which any interest in the Property is conveyed.
B. Conservation Pur ose.
(1) Grantee, for itself, its successors and assigns, agrees that this
Conservation Easement shall be held exclusively for conservation purposes.
(2) The parties hereto recognize and agree that the benefits of this
Canservation Easement are in gross and assignable, provided, however that the Grantee
hereby covenants and agrees, that in the event it transfers ar assigns this .Conservation
Easement, the organization receiving the interest will be a qualified organization as that term
is defined in Section 17U(h)(3) of the Internal Revenue Code, which is organized or operated
primarily for one of the conservation .purposes specified in Section 170 (h)(4xA) of the
Internal Revenue Code, and Grantee further covenants and agrees that the terms of the transfer
or assignment. will be such that the transferee or assignee will be required to continue to carry
out in Perpetuity the conservation Purposes that the contribution was originally intended to
advance, set forth in the Recitals herein,
(3) Unless otherwise specifically set forth in this Conservation Easement,
nothing herein shall convey to or establish for the public a right of access over the Property.
G Construction bf Terms. This Conservation Easement shall be constru~l to
promote the purposes of the North Carolina enabling statute set forth in N.C.G.S. 121-34 et.
se~C .which authorizes the creation of Conservvation Easements for purposes including those set
forth in the Recitals herein, and the conservation purposes of this Conservation Easement,
including such purposes a5 are defined in Section 170(h)(4)(A) ofthe Internal Revenue Code.
D. R.ecordina. State shall record this instrument and any amendment hereto in
timely fashion in the official records of Orange County, North Carolina, and may re-record it
at any time as maybe required to preserve its rights.
E. Notices. All notices, requests or other communications permitted or required
by this Agreement shall be sent by registered or certified mail, return receipt requested,
addressed to the parties as set forth above, or to such other addresses such party may establish
in writing to the other. All such items shall be deemed given or made three (3) days after
being placed in the United States mail as herein provided. In any case where the terms of this
Conservation Easement require the consent of any Party, such consent shall be requested by
written notice. Such consent shall be deemed denied unless, within ninety (90) days after
receipt of notice, a written notice of approval and the reason therefore has been mailed to the
party requesting consent.
F. Amendments. Grantor and Grantee are free to jointly amend this
Conservation Easement to meet changing conditions, provided tbat no amendment will be
allowed that is inconsistent with the purposes of this Conservation Easement or affects the
ORANGE COUNTY 99A-017 EASEMENT.DOC 92In719911:15 AM
50
perpetual duration of this Conservation Easement. Such amendment(s) require the written
consent of both Grantor and .Grantee and shall be effective upon recording in the public
records of Orange County, North Carolina.
G. Environmental Condition of Pro .The Grantor warrants, represents and.
covenants to the Grantee that to the best of its knowledge after appropriate inquiry and
investigation that: (a) the Property described herein is and at all times hereafter will continue
to be in full compliance with all federal, state and local environmental laws and regulations,
and (b) as of the date hereof there are no hazardous materials, substances, wastes, or
environmentally regulated substances (including, without limitation, any materials containing
asbestos) located on, in or under the Property or used in connection therewith, and that there is
no environmental condition exisgng an the Property that' may prohibit or impede use of the
Property for the purposes set forth in the Recitals and the Grantor will not allow such uses ar
conditions.
H. Entire , A~ement. This instrument sets Earth 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.. ]'f any
provision is found to be invalid, the remainder of the provisions of this Conservation
Easement; 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. The party(ies) hereto intend
this document to be an instrument executed under seal. If any party is an individual,
partnership or ]united liability company, such party hereby adopts the word "SEAL"
fallowing his/her signature and the name of the partnership or limited liability company as
hisJherrts legal seal. The Recitals set forth above and the Exhibits attached hereto are
incorporated hereln by reference.
I. Indemru The Gzantors agree to the fullest extent pemtitted by law, to
defend, protect, indemnify and hold harmless the State from and against all claims, actions,
liabilities, damages, fines, penalties, costs and expenses suffered a5 a direct or indirect result of
any violation of any federal, state, ar local environmental, or land use law or regulation or of
the use or presence of any hazardous substance, waste or other regulated material in, on or
under the property. .
J. Interpretation. This Conservation Easement shall be construed and interpreted
under the laws of the State of North Carolina, and any ambiguities herein shall be resolved so
as to give maximum effect to the conservation purposes sought to be protected herein.
K. Parties. Every provision of this Conservation easemern that applies to the
Cxrantors or to the Grantee shall likewise apply to their respective heirs, executors,
adininisriators, assigns, and grantees, and all other successors in interest herein.
L. Merger. The parties agree that the terms of this Conservation Easement shall
surrrtve any merger of the fee and eas~naent interest in the Property.
ORANGE COUNTY 99A-077 EASEMENT.DOC '121D7/9911:15 AM 7
51
M. Subs uent Liens. No provisions of this Conservation Easement shall be
construed as impairing the ability of Grantors to use this Property for collateral for harrowing
purposes, provided that any mortgage or lien arising therefrom shall be subordinated to this
Easement.
TO HAVE AND TO HOLD unto THE STATE OF NORTH CAROLINA, its
successors and assigns, forever. The covenants agreed to and the temps, conditions, restrictions
and purposes imposed as aforesaid shall be binding upon Grantor, Grantor's representatives,
successors and assigns, and shall cantinas as a servitude running in perpetuity with the
Property. _ -
]N WITNESS WHEREOF, Grantor, by authority duly given, has hereunto caused
these presents to be executed by its officers and its seal off xed, to be effective the day and
year first above written.
GRANTOR
By. . ,.._ , n eim~..
Title:
ATTEST:
Title:
[SEAL]
STATE OF
COUNTY OF
. I, . „,.. .__. Notary Public, do hereby certify that
personally came before me this day and acknowledged that heJshe is of
. , , a . _~ and that by authority duly given and as the act
of the , , , , , , ,the foregoing irrsirument was signed in its name by its ,sealed
with its seal, and attested by him/herself as its
Witness my hand and notarial seal, this the day of 19
Notary Public
My commission expires: -
ORANGE COUNTY 99A-017 EASEINENT.DOG 721Q%/9917;'15 AM
sz
STATE ~OF NORTH CAROLINA
COUNTY
The foregoing certificate of Notary public, is
certified to be caned.
This day of _ ~ - ,..,:. ,199
Register of Deeds
This inshvment prepared by and should be returned ta:
ORANGE GOUNTY99A-OBIT FJls~nnar_eec ~2reyx~ ~t~f~~s ens a
S3
EX~IIBIT A
[Add legal description of Property along with description of property condition,
improvements; structures, major features]
ORANGE COUNTY 99AA17 EASEf111ENT.DOC 1210719911;15 AM 10
54
Clean Water Management Trust Fund
Grant Agreement No. 1999A-07.7
Orange County Property Acquisition
Exhibit A
Water Ouality Objective: The water quality objective o£ this
project is to establish and maintain 300-feet wide riparian
buffers along a section of the Eno River (Corporation Lake),
McGowan Creek, and an unnamed tributary to the Eno which flows
through the property and into Corporation Lake, a WS-II public
water supply.
Project Descript ion: Orange County will acquire a 62.65 acre
parcel of land that includes property located within 400 feet of
the Corporation Lake public water supply impoundment located on
the Eno River. McGowan Creek, a main tributary of the Eno, is
just north of the property and an unnamed tributary of the Eno
traverses the property. Three hundred feet wide riparian buffers
within the 62.65 acre parcel to be purchased will buffer the
Eno,, McGowan Creek and the unnamed tributary. These riparian
buffers will be placed under a permanent conservation easement.
Pro ert Descri tion: The parcel of land to be purchased is part
of Duke Forest (Hillsboro Division) and owned by Duke
University. The parcel is located in central Orange County,
north of US 70 West and adjacent to property owned by the
Orange-Alamance Water System, Tnc., that contains Corporation
Lake. The 62.65.acre parcel to be purchased is identified as
Orange County Tax Map.. Block Lot (TMBL) Number 3.41..14 and PTN
9855-50-8167. The 62.65 acre parcel is further identified and
depicted on the March 2000 Callemyn-Parker, Inc. plat of survey
titled "Property surveyed for Orange County Environment &
Resource Conservation Department" which plat is recorded at Plat
Book Page of the Orange County Registry. The
property subject to the conservation easement to be conveyed to
the State of North Carolina in consideration of the grant funds
is that portion of the 62.65 acre parcel totalling 31.91 acres
designated on the recorded plat as "SUBJECT TO CONSERVATION
EASEMENT AGREEMENT BETWEEN ORANGE COUNTY, NORTH CAROLINA AND THE
STATE OF NORTH CAROLINA."
Project Budget: The project budget consists of approximately
$150,000 from Orange County and $143,000 from the CWMTF. Six
Thousand Dollars ($6,000) of the money received from CWMTF will
be used for surveying and legal/administrative fees; $137,000
will be applied to the land purchase.
55
Project Timeline: The boundary survey, appraisal and
environmental report (Phase S assessment) will be completed on
or about March 21, 2000. The grant agreement will be presented
to the Orange County Board of Commissioners for approval on
March 21, 2000. At that same meeting, the Board of Commissioners
will be asked to approve the installment purchase of the 62.65
acre parce]. of land. The closing for the purchase is scheduled
for March 31., 2000. One Hundred Forty-three Thousand Dollars
($143,000) of the $280,000 purchase price will be paid at
closing with-the balance paid in two equal annual installments
plus interest. The first such installment will be due on March
31, 2001. The final installment will be due on. January 31, 2002.
lag:orangecounty\dukep;opexhA.doc
Attachment H
Environmental Resources Conservation and Preservation 56
Capital Project Ordinance
Be it ordained by the Orange County Board of County Commissioners that pursuant to Section
13.2 of Chapter 159 of the General Statutes of North Carolina, the following capital project is
hereby adopted.
Section 1. The project authorized is for the purchase of land for natural resource and
farmland preservation. Financing for the project includes proceeds from the
County's portion of the one-half cent sales taxes, a portion of property tax, and a
grant from the Clean Water Management Trust.
Section 2. The officers of the County are hereby directed to proceed with the project
within the budget contained herein.
Section 3. The following revenue is anticipated to complete this project:
Through FY Through FY
Transfer from General Fund
Transfer from School/Park Capital
Section 4. .The following amount is appropriated for this project:
Through FY Through FY
4
t 7 4
Section S. This ordinance shall be in effect from July 1, 1998 until June 30, 2000.
Section 6. This ordinance supersedes all previous Conservation Easements Preservation
Capital Project Ordinances for Orange County.
Adopted this 21st day of March 2000.