NORTH CAROLINA CONSERVATION AGREEMENT
ORANGE COUNTY
This Grant of Conservation Agreement (hereinafter "Conservation Agreement") is made this the ___day of , 2006 by and between the Town of Chapel Hill, 405 Martin Luther King, Jr. Blvd, Chapel Hill, NC 27514, tax identification number 56-6001199; hereinafter referred to as “Grantor” and the Botanical Garden Foundation, Inc., a North Carolina nonprofit corporation, with an address of CB 3375, The University of North Carolina at Chapel Hill, Chapel Hill, NC 27599 (hereinafter "Grantee").
The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors and assigns, and shall include singular, plural, masculine, feminine or neuter pronouns as required by context.
NOW, THEREFORE, the Grantor, for and consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby gives, grants and conveys unto the Grantee, its successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina, a Conservation Agreement over the Property of the nature and character as follows:
1. PURPOSE. The purposes of this Conservation Agreement are to ensure that the Property will be retained forever predominantly in its natural condition; to protect native plants, animals, or plant communities on the Property, while allowing traditional uses on the property that are compatible with and not destructive of the conservation values of the property such as a corridor for utilities, outdoor recreation and education; and to prevent any use of the Property that will significantly impair or interfere with conservation values or interests of the Property.
Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the purposes of this Conservation Agreement. However, unless otherwise specified below, nothing in this Conservation Agreement shall require the Grantor to take any action to restore the condition of the Property after any act of God or other event over which Grantor had no control. Grantor understands that nothing in this Conservation Agreement relieves them of any obligation or restriction on the use of the Property imposed by law.
2. PROPERTY USES. Any activity on, or use of, the Property inconsistent with the purposes of this Conservation Agreement is prohibited. The Property shall be maintained in its natural, scenic and open condition and restricted from any development that would significantly impair or interfere with the conservation values of the Property. Without limiting the generality of the foregoing, the following is a listing of activities and uses which are expressly prohibited or which are expressly allowed. Grantor and Grantee have determined that the allowed activities do not impair the conservation values of the Property. Additional retained rights of Grantor are set forth in Paragraph 3 below.
2.1 Subdivision. The Property, which consists of 16 lots, may not be further divided, subdivided or partitioned, nor conveyed except in its current configuration as an entity. The properties that comprise the Morgan Creek Preserve may be recombined.
2.2 Natural Surface Trail Construction. Grantor shall have the right to construct and maintain such number of natural surface trails as the Grantor determines is necessary to provide pedestrian links between neighborhoods, schools, businesses, and other destinations that would be served by pedestrian and non-motorized vehicle transportation. Natural surface trails are defined as trails that are not predominantly of hard surfaces such as concrete, asphalt, or other such substance. However, natural surface trails may have sections of hard surface, erosion control devices, signs, bridges, boardwalks, and other devices intended to make the trails more compatible for users.
2.3 Improved Trail Construction. Grantor shall have the right to construct and maintain an improved trail throughout the property. To the greatest extent possible, the improved trail will be built to AASHTO bicycle standards and to Americans with Disability Act standards and best practices related to handicap access on trails. It will be the Grantor’s goal to locate the trail in areas that do not conflict with the goals of the easement. However, the location of the trail will be determined with consideration to a number of issues including impact on the site, cost, privacy issues, landownership patterns, and other issues. The Grantor retains the right to locate the trail anywhere on the property. Grantor agrees to seek the advice of the Grantee related to the location of the trail prior to establishing a location for said trail.
2.4 Neighborhood Park. Grantor shall have the right to construct and maintain a neighborhood park on the property. The park is likely to consist of a picnic shelter, restroom, and a play area. Other facilities could also be provided within this area. Large open grass areas will be prohibited. Both parties acknowledge that an access drive will be required. The location of said park shall be within the area generally indicated on Attachment F. Grantor agrees to seek the advice of the Grantee related to the location of the park and access drive.
2.5 Merritt Pasture. Grantor shall have the right to directly manage the portion of the property know as the “Merritt Pasture” (Chapel Hill Tax Map 7.126.D.7) for a variety of purposes including passive recreation, vegetation management, and preservation of viewscapes both into and out of the Merritt Pasture. The Grantor shall have the right to manage the property under the terms agreed to by the Town Council on June 24, 2002. The Grantor further reserves the right to modify the management plan for Merritt Pasture as long as said changes do not conflict with the goals of preserving open space, preventing the construction of structures, preserving the natural lay of the land, and preserving natural wildlife and plant species. Any modification of the plan shall be done only after consultation with the Grantee.
2.6 Landscaping. Grantor shall have the right to plant landscape material adjacent to neighboring properties, within the neighborhood park described in paragraph 2.4 above, along the trails, for erosion control, and for other uses. All landscape plant materials shall consist only of plant materials that are native to the Piedmont of North Carolina.
2.7 Utilities and Communication Facilities. Grantor shall have the right to allow existing public utilities on the property. In addition, the Grantor shall have the right to extend public utilities within the Morgan Creek Preserve if no other reasonable alternatives exist and if the Town Council of Chapel Hill determines that such utility extensions meet a significant public purpose. The Town may also allow placement of a communications facility such as a radio or cell tower if it can be installed with minimal disturbance to the site and can be served by the same access drive as the neighborhood park allowed in paragraph 2.4 or other pre-existing cleared easements or roads.
2.8 Buildings and Other Improvements. Grantor shall not have the right to build new buildings, parks, or other facilities on the property that are not expressly allowed in this agreement or are authorized by the Grantee.
2.9 Existing Improvements. Grantor shall have the right to maintain, remodel, and repair existing structures to similar size, function, capacity, location and material.
2.10 Timber Harvest. Grantor shall not have the right to harvest timber from the Property except for removal of dangerous trees, dead wood, or dead trees as necessary to control or prevent imminent hazard, disease or fire; and prohibiting the spread of non-native plants and the disturbance of any plant community habitat except as otherwise allowed.
2.11 Recreational Use. Grantor shall have the right to engage in and permit others, whether or not for consideration, to engage in recreational uses of the Property, including, but not limited to, hiking, camping, picnicking, non-motorized bicycling, motorized wheelchair use, lawful fishing, and other recreational uses that require no buildings, facilities, surface alteration or other development of the land except as otherwise allowed above. Pursuit of wildlife by any form of motorized transportation is not allowed. Grantor reserves the right to promulgate and enforce reasonable rules and regulations for all activities incident to recreational use of the Property, including but not limited to the right to prohibit any recreational use that would cause destruction of other significant conservation values of the Property.
2.12 Excavation. There shall be no filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials, and no change in the topography of the land in any manner except as permitted in this agreement and as necessary to allow the construction of the improvements allowed above, the maintenance or improvements of existing roads, trails and for the purpose of combating erosion or flooding.
2.13 Destruction of Plants. Grantor shall have the right to cut and remove diseased trees, shrubs, or other plants, and to cut firebreaks, subject to prior approval by the Grantee, except that such approval shall not be required in case of emergency firebreaks. In addition the Grantor shall have the express right to remove trees that endanger the property of adjacent landowners and/or the safety of persons using the property. Grantor shall also have the right to cut and remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this Agreement. There shall be no additional removal, harvesting, destruction or cutting of native trees, shrubs or other plants. There shall be no planting of non-native trees, shrubs, or other plants on the Property. Furthermore, except to accommodate the activities expressly permitted in this Agreement, there shall be no use of fertilizers, plowing, introduction of non-native animals, or disturbance or change in the natural habitat in any manner.
2.14 Water Quality and Drainage Patterns. There shall be no pollution of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Property that would be detrimental to water purity or that could alter the natural water level or flow in or over the Property. Other than the construction of bridges, devices, and/or retaining walls along streams for trail construction, there shall be no alteration, depletion or extraction of surface water, natural water courses, lakes, ponds, marshes, subsurface water or any other water bodies on the Property. Diking, draining, filling or removal of wetlands is prohibited. Disruption of natural drainage patterns is prohibited; except a) for the purpose of maintaining and/or restoring existing roads and trails, b) for the construction and maintenance of facilities allowed above, and c) to prevent and control erosion.
2.15 Signage. No signs or billboards or other advertising displays are allowed on the Property, except that signs whose placement, number and design do not significantly diminish the scenic character of the Property may be displayed to mark boundaries; identify a park, trails and the conservation values of the Property; to identify the name and address of the Property, to give directions, to advertise or regulate permitted uses on the Property and proscribe rules and regulations for recreational use of the protected Property, and to post the Property against trespassers.
2.16 No Biocides. There shall be no use of pesticides or biocides, including but not limited to insecticides, fungicides, rodenticides, and herbicides, except as approved by Grantee to control invasive species detrimental to the conservation values of the Property, and except as needed around improvements on the Property. In addition, although the Grantor would prefer that biocides not be used for the control of vegetation on the existing power line easement, this agreement does not restrict the right of the holder of the power line easement from using biocides.
2.17 No Dumping. There shall be no storage or dumping of trash, garbage abandoned vehicles, appliances, or machinery, or other unsightly or offensive material, hazardous substance, or toxic waste on the Property. There shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, nor shall activities be conducted on the Property, that could cause erosion or siltation on the Property.
2.18 Stream and Landform Improvements. The Grantor has the right to make improvements on the properties including filling and grading if it is for the purpose of making improvements to the land including, but not limited to, the following:
2.19 Animal Control. Grantor shall have the right to control, destroy, or trap diseased and problem animals which pose a material threat to humans. The control methods employed shall be selective and specific to individuals, rather than broadcast, nonselective techniques.
2.20 Commercial Development. Any commercial or industrial use of or activity on the Property, other than those relating to education, public utilities, communication facilities, recreation, or as permitted herein is prohibited.
2.21 Development Rights. With the exception of improvements permitted above, Grantor conveys to Grantee all development rights that are now or hereafter allocated to, implied, reserved or inherent in the Property, and the parties agree that such rights are terminated and extinguished, and may not be used on or transmitted to any portion of the Property, as it now or hereafter may be bounded or described, or to any other property.
3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the following additional rights:
3.1 Existing Uses. The right to undertake or continue any activity or use of the Property not prohibited by this Conservation Agreement. Prior to making any change in use of the Property, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Conservation Agreement.
3.2 Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Property subject to the terms of this Conservation Agreement.
4. GRANTEE’S RIGHTS. To accomplish the purpose of this Conservation Agreement, the following rights are granted to Grantee by this Conservation Agreement:
4.1 Right to Protect. The right to preserve and protect the conservation values of the
Property and enforce the terms of this Conservation Agreement.
4.2 Right of Entry. Grantee, its employees, representatives, and agents and its successors and assigns, have the right, after prior written notice to Grantor, to enter the protected Property at reasonable times for the purposes of: (a) inspecting the protected Property to determine whether the Grantor, its representatives, assigns, heirs and successors are complying with the covenants and purposes of this Conservation Agreement and (b) monitoring and research as described below.
4.3 Monitoring and Research. The right, but not the obligation, to monitor the native plant and wildlife populations, plant communities and natural habitats on the Property. Grantor agrees that all monitoring activity, inventory and assessment work or other natural resource research conducted by the Grantor or others shall be reported to the Grantee.
4.4 Management of Exotics and Invasive Species. The right, but not the obligation, to control, manage or destroy exotic non-native species or invasive species of plants and animals that threaten the conservation values of the Property. Grantee will consult with Grantor prior to implementing control activities.
5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED. Other than as specified herein, this Conservation Agreement is not intended to impose any legal or other responsibility on the Grantor, or in any way to affect any existing obligation of the Grantor as owner of the Property. Among other things, this shall apply to:
(a) Taxes - The Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property.
(b) Upkeep and Maintenance - The Grantor shall be solely responsible for the upkeep
and maintenance of the Property, to the extent it may be required by law. The Grantee shall have no obligation for the upkeep or maintenance of the Property.
6. ACCESS. No right of access by the general public to any portion of the Property is conveyed by this Conservation Agreement.
7. ENFORCEMENT. The Grantee shall have the right to prevent and correct violations of the terms of this Conservation Agreement.
A. With advance written notice the Grantee may enter the Property for the purpose of inspecting for violations. If the Grantee finds a violation, it may at its discretion take appropriate legal action. Except when an ongoing or imminent violation could substantially diminish or impair the conservation values of the Property, the Grantee shall give the Grantor written notice of the violation and sixty (60) days to correct it or begin good faith efforts to correct in the event the violation is something which cannot be reasonably corrected in sixty (60) days, before filing any legal actions. If a court with jurisdiction determines that a violation may exist or has occurred, the Grantee may obtain an injunction to stop it, temporarily or permanently. A court may also issue an injunction requiring the Grantor to restore the Property to its condition prior to the violation. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time.
B. Nothing contained in this Conservation Agreement shall be construed to entitle Grantee 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 Property resulting from such action.
8. TRANSFER OF AGREEMENT. The parties recognize and agree that the benefits of this Agreement are in gross and assignable. The Grantee shall have the right to transfer or assign this Conservation Agreement to any qualified organization that is at the time of transfer, is a "qualified organization" under Section 170(h) of the U.S. Internal Revenue Code, and the organization expressly agrees to assume the responsibility imposed on the Grantee by this Conservation Agreement. If the Grantee ever ceases to exist or no longer qualifies under Sec. 170(h) or applicable state law, a court with jurisdiction shall transfer this Agreement to another qualified organization having similar purposes that agrees to assume the responsibility.
9. TRANSFER OF PROPERTY. Any time the Property, or any interest therein, is transferred by the Grantor to any third party, the Grantor shall notify the Grantee in writing at least thirty (30) days prior to the transfer of the Property, and the document of conveyance shall expressly refer to this Conservation Agreement.
10. RIGHT OF FIRST REFUSAL. In case of any contemplated sale of the subject property or any portion thereof by the Grantors or any successor in title thereto, first refusal as to any bona fide offer of purchase must be given to the Grantee, its successors or assigns. If Grantee so decides to purchase, it shall notify the then owner of its willingness to buy upon the same terms within thirty (30) days of receipt of written notice of such bona fide offer. Failure of Grantee to notify the then owner of its intention to exercise this right of first refusal within such thirty (30) day period shall free the owner to sell pursuant to the bona fide offer. Provided, however, that if there are any outstanding deeds of trust or other encumbrances against the property, any right to repurchase shall be subject to said deeds of trust or encumbrances, and they shall either be satisfied or assumed as part of the purchase price.
11. AMENDMENT OF AGREEMENT. This Agreement may be amended only with the written consent of Grantor and Grantee. Any such amendment shall be consistent with the purposes of this Conservation Agreement and shall comply with Sec. 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such amendment shall also be consistent with the Uniform Conservation and Historic Preservation Agreements Act, N.C.G.S. Section 121-34 et. seq., or any regulations promulgated pursuant to that law. The Grantor and Grantee have no right or power to agree to any amendment that would affect the enforceability of this Conservation Agreement.
12. TERMINATION OF AGREEMENT. If it is determined that conditions on or surrounding the Property have changed so much that it is impossible to fulfill the conservation purposes set forth above, a court with jurisdiction may, at the joint request of both the Grantor and Grantee, terminate this Conservation Agreement. If condemnation of a part of the Property or of the entire Property by public authority renders it impossible to fulfill any of these conservation purposes, the Conservation Agreement may be terminated through condemnation proceedings.
At the time of the conveyance of the Conservation Agreement to the Grantee, this Conservation Agreement gives rise to a real property right, immediately vested in the Grantee. If the Agreement is terminated and the Property is sold or taken for public use, then, as required by Sec. 1.170A-14(g)(6) of the IRS regulations, the Grantee shall be entitled to a percentage of the gross sale proceeds or condemnation award (minus any amount attributed to new improvements made after the date of the conveyance, which amount shall be reserved to grantor), equal to the ratio of the appraised value of this Agreement to the unrestricted fair market value of the Property, as these values are determined on the date of this Conservation Agreement. The Grantee shall use the proceeds consistently with the conservation purposes of this Conservation Agreement.
13. INTERPRETATION. This Conservation Agreement shall be interpreted under the laws of North Carolina, resolving any ambiguities and questions of the validity of specific provisions as to give maximum effect to its conservation purposes.
14. 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 this Conservation Agreement; that the Property is free and clear of any and all encumbrances, including but not limited to, any mortgages not subordinated to this Conservation Agreement, and that the Grantee shall have the use of and enjoy all the benefits derived from and arising out of this Conservation Agreement, except for easements of record or easements that are apparent by visual inspection..
15. NOTICES. Any notices required by this Conservation Agreement shall be in writing and shall be personally delivered or sent by first class mail, to Grantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address.
To Grantor:
Town Manager
Town of Chapel Hill
405 Martin Luther King, Jr. Blvd
Chapel Hill, NC 27514
To the Grantee:
Botanical Garden Foundation, Inc.
CB 3375, The University of North Carolina at Chapel Hill
Chapel Hill, NC 27599
16. ENVIRONMENTAL CONDITION. The Grantor warrants that it has no actual knowledge of a release or threatened release of hazardous substances or wastes on the Property.
17. SEVERABILITY. If any provision of this Conservation Agreement is found to be invalid, the remaining provisions shall not be altered thereby.
18. PARTIES. Every provision of this Conservation Agreement that applies to the Grantor or Grantee shall also apply to their respective heirs, executors, administrators, assigns, and all other successors as their interest may appear.
19. RE-RECORDING. In order to ensure the perpetual enforceability of the Conservation Agreement, the Grantee is authorized to re-record this instrument or any other appropriate notice or instrument.
20. MERGER. The parties agree that the terms of this Conservation Agreement shall survive any merger of the fee and Agreement interest in the Property.
21. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Conservation Agreement should be construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing would be subordinate to this Conservation Agreement.
22. EXHIBIT AND DOCUMENTATION.
A. Legal Description. Exhibits A and B, Legal Description of the protected Property is attached hereto and made a part hereof by reference.
B. Sketch Maps of Properties. Exhibits C, D, and E show the approximate location of the boundaries of the Conservation Agreement.
C. Sketch Maps Showing Park Site. Exhibit F shows the approximate location of the neighborhood park allowed by this agreement.
D. Summary of Conservation Agreement Baseline Report. Exhibit G. The parties acknowledge that the Conservation Agreement Baseline Report dated , a copy of which is on file at the offices of the Grantee, accurately establishes the uses, structures, conservation values and condition of the protected Property as of the date hereof.
23. ENTIRE AGREEMENT. This instrument sets forth the entire agreement of the parties with respect to the Conservation Agreement and supersedes all prior discussions, negotiations, understandings or agreements relating to the Conservation Agreement. If any provision is found to be invalid, the remainder of the provisions of this Conservation Agreement, 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.
24. ACCEPTANCE AND EFFECTIVE DATE. As attested by the Seal of the Grantee and the signature of its authorized representative affixed hereto, the Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Conservation Agreement. This Conservation Agreement is to be effective the date recorded in the Orange County Registry of Deeds.
TO HAVE AND TO HOLD, this Grant of Conservation Agreement unto the _______________, its successors and assigns, forever.
IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind themselves, have set their hands and seals on the date first written above.
GRANTOR:
________________________ (Seal)
Town Manager
________________________ (Seal)
Town Clerk
Accepted:
GRANTEE:
Botanical Garden Foundation, Inc.
CB 3375, The University of North Carolina at Chapel Hill
Chapel Hill, NC 27599, a North Carolina Non-profit Corporation
__________________________
By: William Bracey, President
Attest:
By: Tom Scott
________ Secretary
(Corporate Seal)
Acknowledgments
STATE OF NORTH CAROLINA
COUNTY OF
I, , a Notary Public in and for said County and State do hereby certify that personally appeared before me this day and duly acknowledged the execution of the foregone Conservation Agreement.
WITNESS my hand and notarial seal, this Day of , 2006.
_________________________(Seal)
Notary Public
My commission expires:
.
(Notary Seal)
NORTH CAROLINA
ORANGE COUNTY
I, __________________, a Notary Public of _____________ County, North Carolina do hereby certify that __________________ personally appeared before me this day and acknowledged that he is the Secretary of __________________, a non-profit corporation, and that by authority duly given and as act of the corporation the foregoing instrument was signed in its name by its ____Chair, sealed with its corporate seal and attested by himself as its secretary.
Witness my hand and notarial seal this the ____ day of __________, 2006.
_________________________(Seal)
Notary Public
My commission expires:
____________________
(Notary Seal)
STATE OF NORTH CAROLINA
_____________ COUNTY
The Foregoing (or annexed) Certificate(s) of ______________________________
__________________________________________________________________
Notary(ies) Public (is)(are) Certified to be correct.
This instrument was filed for Registration on the Day and Hour in the Book and Page shown in the First page hereof.
_________________________
, Register of Deeds