9788681663
HISTORIC PRESERVATION AGREEMENT
COUNTY OF ORANGE
THIS AGREEMENT, made this the _____ day of November, 2006, by and between THE TOWN OF CHAPEL HILL a North Carolina municipal corporation (hereinafter referred to as the "The Grantor"), and THE HISTORIC PRESERVATION FOUNDATION OF NORTH CAROLINA, INC., a non-profit corporation organized and existing under the laws of the State of North Carolina with its principal office being in Raleigh, North Carolina (hereinafter referred to as the "Foundation");
WHEREAS, the Grantor owns certain real property (hereinafter referred to as the "Subject Property"), a description of which is attached hereto as Exhibit "A" and incorporated herein by reference; and
WHEREAS, the Subject Property currently has certain permanent improvements consisting of one-story Modernist building approximately 12,800 square feet in size, designed by architect Don Stewart and built in 1966, hereinafter referred to as the (Old) Chapel Hill Public Library; and
WHEREAS, the (Old) Chapel Hill Public Library located at 523 E. Franklin Street, Orange County, North Carolina, is a property of recognized historical and architectural significance; and
WHEREAS, the Foundation and the Grantor both desire that the Subject Property shall retain its historically and architecturally significant features, while being sympathetically adapted and altered, where necessary, to provide for contemporary uses; and
WHEREAS, the Foundation and the Grantor both desire that the Subject Property shall not be subdivided in order to preserve its integrity of site; and
WHEREAS, the Foundation is a charitable organization which accepts preservation easements on buildings having historical or architectural importance, said easement subjecting such buildings to restrictions that will insure that they are preserved and maintained for the benefit of future generations; and
WHEREAS, the preservation of the Subject Property in this manner constitutes a public purpose; and
WHEREAS, the North Carolina General Assembly has enacted the Conservation and Preservation Agreements Act, currently codified as Chapter 121, Article 4 of the North Carolina General Statutes, validating restrictions, easements, covenants, conditions, or otherwise, appropriate to the preservation of a structure or site significant for its architecture, archaeology or historical associations.
NOW, THEREFORE, for and in consideration of the Grantor’s interest in historic preservation and its support for the Foundation and its purposes, and for and in consideration of the sum of ONE DOLLAR ($1.00), the Grantor, for itself, its successors and assigns, hereby covenants and agrees to abide by the following restrictions (hereinafter referred to as "covenants"), said covenants to be restrictions of record to attach to the land described in Exhibit A:
1. These covenants shall be administered solely by the Foundation, its successors in interest or assigns; and in all subsequent conveyances of Subject Property, the Foundation, its successors in interest or assigns shall be the sole party entitled to administer these covenants. In the event that the Foundation, or its successors in interest by corporate merger cease to exist, then in such event the Foundation shall assign all of its rights and interests in these easements, covenants, and conditions subject to such duties and obligations which it assumes hereby to a non-profit corporation of responsibility which exists for substantially the same reasons as the Foundation itself (as described hereinabove); if no such corporation be available for such assignment, then under such circumstances such assignment shall be made to the State of North Carolina which shall be the sole party entitled to administer these covenants.
2. The Grantor covenants and agrees to continuously maintain, repair, and administer the Subject Property herein described in accordance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties (1992) so as to preserve the historical integrity of features, materials, appearances, workmanship and environment of the Subject Property. Maintenance shall be continuously provided. Said standards are attached hereto as Exhibit B and incorporated in these covenants by reference.
3. Unless prior written approval by the President or Chairman of the Board of Directors of the Foundation is obtained, no alteration, physical or structural change, or changes in the color, material or surfacing to the exterior of the (Old) Chapel Hill Public Library shall be made; provided, however, this paragraph shall not be construed to prevent the construction, reconstruction, alteration, restoration, moving, or demolition of any such feature that the building inspector or similar official shall certify is required by the public safety because of unsafe or dangerous condition. Ordinary maintenance or repair of any exterior architectural feature that does not involve a change in design, material, or outer appearance shall not require prior written approval of the Foundation.
4. Unless the plans and exterior designs for such structure or addition have been approved in advance in writing by the President or Chairman of the Board of Directors of the Foundation, no addition or additional structure shall be constructed or permitted to be built upon the Subject Property. The Foundation in reviewing the plans and designs for any addition or additional structure shall consider the following criteria: Exterior building materials; height; fenestration; roof shapes, forms, and materials; surface textures; expression of architectural detailing; scale; relationship of any additions to the main structure; general form and proportion of structures; orientation to street; setback; spacing of buildings, defined as the distance between adjacent buildings; lot coverage; use of local or regional architectural traditions; and effect on archeological resources. Contemporary designs for additions or additional structures shall not be discouraged when such alterations and additions do not destroy significant historical, architectural, or cultural material, and such design is compatible with the size, color, material and character of the property and its environment.
5. The Grantor and the Foundation hereby agree that the interior architectural features listed below are elements which contribute to the architectural significance of the (Old) Chapel Hill Public Library:
Window trim
Fireplace and mantle
Carved wood doors on the south side (including the doors on the interior side of the air lock/entry as well as the exterior doors)
Unless prior written approval by the President or Chairman of the Board of Directors of the Foundation is obtained, no removal, relocation, or alteration of the above mentioned architectural features shall be made.
6. Neither the (Old) Chapel Hill Public Library nor any part thereof may be removed or demolished without the prior written approval of the President or Chairman of the Board of Directors of the Foundation.
7. No portion of the Subject Property may be subdivided.
8. Express written approval of the Foundation is required for removal of living trees greater than 12 inches in diameter at a point 4 feet above the ground from the Subject Property unless immediate removal is necessary for the protection of any persons coming onto the Subject Property or of the general public; for the prevention or treatment of disease; for the protection and safety of the (Old) Chapel Hill Public Library or other permanent improvements on the Subject Property; to facilitate installation of necessary utility connections to the existing structure; or, as approved by Grantor, to facilitate the installation of necessary public facilities. Any tree of the aforementioned size which must be removed shall be replaced within a reasonable time by a new tree of a substantially similar species. If so requested, the Foundation may approve the use of an alternate species.
9. The Grantor shall abide by all applicable federal, state, and local laws and ordinances regulating the rehabilitation, maintenance and use of the Subject Property.
10. In case of any contemplated sale of the Subject Property or any portion thereof by the Grantor or any successor in title thereto, first refusal as to any bona fide offer of purchase must be given to the Foundation, its successors or assigns to the extent permitted by law. If such sale is contemplated, Grantor shall use a sales procedure that would most facilitate the opportunity for the Foundation to exercise this option. If the Foundation so decides to purchase, it shall notify 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 the Foundation to notify 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. The Foundation may, in its discretion, waive its right of first refusal in writing, upon written receipt of such 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. Representatives of the Foundation shall have the right to enter the Subject Property at reasonable times, after giving reasonable notice, for the purpose of inspecting the buildings and grounds to determine if there is compliance by the Grantor with the terms of these covenants.
12. Researchers, scholars, and groups especially interested in historic preservation shall have access to view the interior of the rehabilitated property by special appointment with Grantor at various times and intervals during each year. The general public shall have access to the Subject Property to view the exterior and interior features herein protected at the Grantor’s discretion at various times and intervals during each year at times both desirable to the public and convenient with the Grantor. Nothing shall be erected or allowed to grow on the Subject Property which would impair the visibility of the property and the buildings from the street level or other public rights of way.
Hazardous Materials
13. The properties the Foundation seeks to protect may contain certain hazards as a result of outdated building practices or use of certain materials that may contain lead paint, asbestos, or some other hazards that may need to be removed or encapsulated before the buildings are habitable. Addressing these problems is one of the challenges of owning and restoring a historic property. The Foundation does not have the resources to correct these problems and cannot take responsibility for the condition of the properties being sold. The Foundation is not liable in any way for any hazards, defects, or other problems with the properties under covenants.
14. The Grantor and the Foundation recognize that an unexpected change in the conditions surrounding the Subject property may make impossible or impractical the continued use of the Subject Property for conservation purposes and necessitate the extinguishment of this Historic Preservation Agreement. Such an extinguishment must comply with the following requirements:
(a) The extinguishment must be the result of a final judicial proceeding.
(b) The Foundation shall be entitled to share in the net proceeds resulting from the extinguishment in an amount in accordance with then applicable regulations of the Internal Revenue Service of the U. S. Department of the Treasury.
(c) The Foundation agrees to apply all of the portion of the net proceeds it receives to the preservation and conservation of other property or buildings having historical or architectural significance to the people of the State of North Carolina.
(d) Net proceeds shall include, without limitation, insurance proceeds, condemnation proceeds or awards, proceeds from a sale in lieu of condemnation, and proceeds from the sale or exchange by The Grantor of any portion of the Subject Property after the extinguishment.
15. In the event of a violation of covenants contained in Paragraphs 2, 3, 4, 5, and 6 hereof, the Foundation then shall if, and to the extent, allowed by law have an option to purchase the Subject Property, provided that it shall give the Grantor written notice of the nature of the violation and the Grantor shall not have corrected same within the ninety (90) days next following the giving of said notice. The purchase of the Subject Property, pursuant to the exercise of the option retained hereby, shall be at a price equal to then market value of the Subject Property, subject to restrictive covenants, as determined by agreement of then owner and the Foundation, or, in the absence of such agreement, by a committee of three appraisers, one to be selected by the Foundation, one to be selected by then owner, and the other to be designated by the two appraisers selected by the Foundation and the owner respectively. Provided, however, that if there are outstanding deeds of trust or other encumbrances against the property, any right to purchase shall be subject to said deeds of trust or encumbrances, and they shall either be satisfied or assumed as part of the purchase price.
16. In the event of a violation of these covenants and restrictions, all legal and equitable remedies, including injunctive relief, specific performance, and damages, shall be available to the Foundation. No failure on the part of the Foundation to enforce any covenant or restriction herein nor the waiver of any right hereunder by the Foundation shall discharge or invalidate such covenant or restriction or any other covenant, condition or restriction hereof, or affect the right of the Foundation to enforce the same in event of a subsequent breach or default
17. Except as otherwise provided herein, there shall be assessed by the Foundation and collected from the purchasers of the Subject Property, or any portion thereof subject to these covenants and restrictions, a transfer fee equal to twenty-five one-hundredths of one percent (0.25%) of the sales price of such property, or any portion thereof, which transfer fee shall be paid to the Foundation and used by the Foundation for the purpose of preserving the historical, architectural, archeological or cultural aspects of real property. Such fee shall not apply to inter-spousal transfers, transfers by gift, transfers between parents and children, transfers between grandparents and grandchildren, transfers between siblings, transfers between a corporation and any shareholders in the same corporation who owns 10 percent (10%) or more of the stock in such corporation and transfers between a limited liability corporation and any member who owns more than ten percent (10%) of such limited liability corporation, transfers by Will, bequest, intestate succession or transfers to the Foundation (each of the foregoing hereinafter referred to as an “Exempt Transfer”); provided, however, that such fee shall not apply to the first non-exempt transfer of the Subject Property, but shall apply to each non-exempt transfer thereafter. In the event of non-payment of such a transfer fee, the amount due shall bear interest at the rate of 12% (twelve percent) per annum from the date of such transfer, shall, together with accrued interest, constitute a lien on the real property, or any portion thereof, subject to these covenants and restrictions and shall be subject to foreclosure by the Foundation. In the event that the Foundation is required to foreclose on its lien for the collection of the transfer fee, and/or interest thereon, provided for herein, the Foundation shall be entitled to recover all litigation costs and attorney’s fees incurred at such foreclosure, which litigation costs and attorney’s fees shall be included as part of the lien and recoverable out of proceeds of the foreclosure sale. The Foundation may require the purchaser and/or seller to provide reasonable written proof of the applicable sales price, such as executed closing statements, contracts of sale, copies of deeds, affidavits or such other evidence, and purchaser shall be obligated to provide such information within forty-eight (48) hours after receipt of written request for such information from the Foundation
18. The Grantor shall insure the Subject Property against damage by fire or other catastrophe. If the original structure is damaged by fire or other catastrophe to an extent not exceeding fifty percent (50%) of the insurable value of those portions of the building, then insurance proceeds shall be used to rebuild those portions of the Subject Property in accordance with the standards in Exhibit B. The Grantor shall keep the Subject Property insured under a comprehensive general liability policy that names the Foundation as an additional insured and that protects the Grantor and the Foundation against claims for personal injury, death and property damage.
19. All mortgages and rights in the property of all mortgagees are subject and subordinate at all times to the rights of the Foundation to enforce the purposes of these covenants and restrictions. The Grantor will provide a copy of these covenants and restrictions to all mortgagees of the Subject Property and has caused all mortgagees as of the date of this deed to subordinate the priority of their liens to these covenants and restrictions. The subordination provisions as described above relates only to the purposes of these covenants and restrictions, namely the preservation of the historic architecture and landscape of the Subject Property.
20. The Grantor does hereby covenant to carry out the duties specified herein, and these restrictions shall be covenants and restrictions running with the land, which the Grantor, its successors, and assigns, covenant and agree, in the event the Subject Property is sold or otherwise disposed of, will be inserted in the deed or other instrument conveying or disposing of the Subject Property.
21. Unless otherwise provided or restricted by law, the covenants and restrictions set forth above shall run in perpetuity.
IN WITNESS WHEREOF, the Town of Chapel Hill and the Historic Preservation Foundation of North Carolina, Inc., have each caused this instrument to be signed in its name by its duly authorized officer and its seal to be hereunto affixed by the authority of its Town Council and its Board of Directors, respectively, the day and year first above written.
By: _____________________________
J. Myrick Howard, President
Corporate Seal
TOWN OF CHAPEL HILL
By: _______________________________
Town Manager
SEAL
ATTEST:
____________________________
Town Clerk
Approved as to Form:___________________________________
TOWN ATTORNEY
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act.
___________________________
FINANCE DIRECTOR
I, ___________________________, a Notary Public of the County and State aforesaid, certify that J. Myrick Howard personally came before me this day and acknowledged that he is President of THE HISTORIC PRESERVATION FOUNDATION OF NORTH CAROLINA, INC., a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its President, sealed with its corporate seal.
Witness my hand and official stamp or seal, this ________ day of ____________, 2006.
My Commission Expires: _______________ _______________________________________
Notary Public
ORANGE COUNTY
I, ___________________________________________, a Notary Public of the County and State aforesaid, certify that _________________________________, personally came before me this day and acknowledged that she is the Town Clerk of the Town of Chapel Hill, a North Carolina municipal corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its name by its Town Manager, sealed with its corporate seal and attested be her as its Town Clerk.
Witness my hand and official stamp or seal, this ________ day of ______________, 2006.
______________________________________________
Notary Public
My commission expires: _____________