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HomeMy WebLinkAboutAgenda - 04-07-2009 -6bORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: April 7, 2009 Action Agenda Item No. (o SUBJECT: County Campus 1.) Purchase and Sale Contract Amendment and 2.) Long-Temt Lease of 200 Spaces on Parking Deck DEPARTMENT: Purchasing and Central Srvcs. PUBLIC HEARING: (Y!N) No ATTACHMENT(S): 1. Amendment to Office Building Purchase and Sale Agreement w! worksheet 2. Amendment to Library Purchase and Sale Agreement w/worksheet 3. Parking Deck Lease 4. Parking Deck Lease Worksheet INFORMATION CONTACT: Pam Jones (919) 245-2652 Geof Gledhill (919) 732-2196 PURPOSE: To consider approval of Omnibus Contract Amendments to the Purchase and Safe Agreements for the office building and the library and the Construction Manager at Risk (CHAR) Agreement which will incorporate all previous amendments and necessary reconciliation activities to align with closing documents for the anticipated closing of the transaction later this year; and to consider approving a 40-year lease agreement for 200 spaces on the parking deck associated with the Campus project. BACKGROUND: Purchase and Sale Agreements for Office Building and Library On June 26, 2007 the Board approved the Purchase and Sale Agreement and the Construction Manager at Risk Agreement for the office building and library on the new. county campus on West Margaret Lane in Hillsborough. The Board authorized revisions to the Purchase and Safe Agreement to align contract language and agreement points between the County and Telesis Construction Management on January 15, 2008. The Amendments presented in this abstract is the result of work among the County Attorney, staff and Telesis, who is the CHAR and developer of the project, and includes reconciliation of numbers related to professional design fees, energy efficient HVAC system improvements, emergency generators to serve the building, and the actual upfit allowance reconciliation integral to the final contract amounts. (See Attachments #1 and #2 for amendment text and worksheet reflecting how numbers were derived.} The office building is scheduled for completion around July 1, 2009 with the completion of the library approximately one month thereafter. The office building will be occupied by Planning and inspections, Environmental Health, Economic Development, Information Technology and the Purchasing and Central Services offices. ERCD was previously slated to occupy the building. The Board at the February 10, 2009 work session indicated its support of the affiliation of ERCD with Soil and Water Conservation. Therefore the 2 ERCD department head has requested the department remain at the Planning and Agriculture Center on Revere Road in order to maximize shared resources and supervision. Construction RAanager at Risk Agreement A technical amendment is requested to the Construction Manager at Risk Agreement as it respects how the contract is bonded. Parking Deck The Board is also requested to approve a Lease Agreement for use of 200 spaces in the 409- space parking deck associated with this project. (Attachment #3) Under the original Letter of Intent with Telesis the .County would have licensed spaces for $1 per year per space ($200), plus $65 per space per year for maintenance ($13,200}. This license arrangement was in place for parking deck spaces utilized during the County's lease of Units 200 and 300 of the Gateway condominium. After considerable discussion, a lease (vs. license) was determined to be the better alternative to ensure the spaces remained available with long-term certainty, since a lease will survive changes in ownership. The proposed agreement also gives the County the Right of First Refusal to purchase the entire parking deck if the owner chooses to sell it before the expiration of the lease term. A license does not create an interest in land, but is a grant of the right to use the spaces which is personal to both the lessor and the lessee. In the final analysis both staff and the Attorney felt the additional approximately $15,000 per year for reimbursement of direct operating expenses attributable to the 200 spaces in the lease {see Section 1.2 of Attachment # 4} far outweighs uncertainty associated with a license. Further, since the County has, in effect, paid for the long-term use of the spaces through the cost of the office building, library and Gateway Center condominium units, the idea of a lease vs. a license became important in developing the financing plan because the forty-year lease can be financed whereas that option may not have been available for a license. As a point of reference, sharing the parking deck operating expenses in this manner is similar to how the Gateway Condominium expenses will be managed now that the County owns Units~200 and 300 of the condominium. (The closing on the County's purchase of those condominium units was February 25, 2009.) Employees working in the office building, library and Gateway Center will park in designated spaces on the deck, leaving approximately 43 surface parking spaces available to customers and visitors to the buildings. Due to the proximity of these free spaces to the Courthouse and to other downtown retail establishments, monitoring this parking to ensure it is available far the County's customers will be important. The personnel hired to monitor the deck parking will assist the County in monitoring the 2-hour parking time limits on surface parking as well It is further noted that such expenses as depreciation, debt service, taxes, supplies for the paiicing fee collection and other expenses strictly associated with the owner's operation of the deck are not included in the operational expenses assessed to the County {see Section 2.1 of Attachment #4} The combined cost of the maintenance and operating expenses is approximately $ 0.39 per space per day, or a total $28,fi32 per year. Terms of the attached Parking Deck Lease (Attachment #3) are summarized as follows: • The term of this lease expires on December 31, 2049, with one year renewals allowed beginning January 1, 2050. • The term of the lease commences February 25, 2009 with respect to 120 parking spaces; o The County will pay $14,590.55 in operating costs for these spaces no later than April 10, 2009; • The term of the remaining 80 spaces will commence upon the date of closing of the County's purchase of the office building and library, anticipated in the summer 2009; o The County will pay $11,452.80, pro-rated as of the date of the office building and library closing for these spaces (for example, assuming a July 1, 2009 closing on the office building and library that amount will be $5,647.95) • Annual operating costs throughout the balance of the term will be based on actual costs documented for the previous year; • Rent is $1 per space/per year for the life of the lease; • Landlord will notify County frst in the event the deck is placed up or sale during the lease term. The County shall have 45 days in which to respond. The County will also have the opportunity to respond to a third party's bona fide offer to buy the deck made to the Landlord during the lease term. • Landlord may install systems, equipment and apparatus they deem necessary to control and regulate access to the deck. The County will pay for access cards and/or identification cards in such case. • Landlord is responsible for maintenance, upkeep and repair of the parking deck and adjoining grounds. • County has exclusive use of the spaces outside the deck and along N & K Street. FINANCIAL IMPACT: Amendments to Purchase and Sale Agreements and CMAR Agreement. The Amendments add a total of $225,788 to complete the design, construction and purchase of the Library and OfFce Building parts of the new County Campus, bringing their total to $18,610,43fi. Much of the amendment amount can be attributed to providing emergency generator power to ensure the uninterrupted service of the county's data center housed at this location. No amendment is needed to the overall County Campus project budget. The overall County Campus project budget remains $25,700,000. Reconciliations of project costs and payments follow. A. Purchase and Saie Amendment Reconciliation: Office Bldg and Library pars 2.01 Original Contract Purchase Price (6!27107) Original Design Fees (12111!07) Total Orlgtnai Sustainable Design Elemceta (1116!08) Approved as Amended as o17116l08 Constnrcdon Changes Needed Design Fee Charges Needed Total B. Payment Reconciliation Purchase Price and Face ReLnburae Telesk for Amount Paid to BrockWell Total Payments Purchase Price Design Fees Total 17,939,079 0 17,939,079 -39'7,806 397,808 0 17,541,273 397,808 17,939,079 445,569 0 445,589 17,988,842 397,808 18,384,648 217,988 0 217,988 -7,600 15,600 7,800 18,197,030 415,405 18,610,436 Telesis Brockwell et al -.. Total 18,197,030 413,406 18,810,438 74,215 -74,215 0 18,271,245 339,191 18,fi10,436 4 Parkins Deck Sufficient funds are available in the FY 2008-2009 budget to support the approximately $20,000 in operating expenses which will be assessed for the balance of 2009. Assessments for future years are estimated at $28,600 per year and will be included in the Manager's Recommended Budget as appropriate. RECOMMENDATION{S): The Manager recommends the Board: • Approve Amendments to the Purchase and Sale Agreements for the Office Building and Library and the Construction Manager at Risk (CMAR) Agreement, subject to final County Attorney review and approval; and • Approve the long term Lease of 200 spaces in the parking deck, subject to final County Attorney review and approval; and • Authorize the Chair to sign the Contract Documents and Parking Deck Lease; and • Authorize the Purchasing Director and Financial Services Director to close on the Parking Deck Lease and the Purchase of the OfFce Building and the Library, consistent with the Contract Documents, and to sign all related documents for these transactions as approved by the County Attorney; and • Authorize the County Manager to Approve further change orders and related contract amendments so long as doing so does not result in the need for amendment to the overall project budget of $25.7million. . ORANGE COUNTY NORTH CAROLINA AMENDMENT TO AGREEMENT OF PURCHASE AND SALE {OFFICE BUILDINGI THIS AGREEMENT OF PURCHASE AND 'SALE (OFFICE BUILDING) ("Agreement') is made effective this day of , 2009, (the "Execution Date") by and between TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company ("SeUer") and ORANGE COUNTY, NORTI3 CAROLINA, a body corporate and politic and a political subdivision of the State of North Carolina ("Purchaser"). WITNESSETH: WHEREAS,. Seller and Purchaser entered into an Agreement of Purchase and Sale (Office Building) made effective February 1, 2008 (the "Agreement') which agreement provides for the sale and purchase of a public library to be constructed and located in Hillsborough, North Carolina.; and WHEREAS, the parties have previously agreed to amend the Agreement and agree the Agreement needs further amendment all as described herein. NOW, THEREFORE, in consideration of good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Incorporation of Preamble and Recitals. The preamble and recitals to this Amendment are hereby incorporated herein by reference and made a part of this Amendment. 2. Definitions. All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Agreement. All references in the Agreement to "this 0 Agreement" shall be deemed to be the Agreement as amended by this Amendment unless the context requires otherwise. 3. Paragraph 2.01 of the Agreement is deleted in its entirety and replaced with the following: 2.01 The purchase price (the "Purchase Price"} for the Property shall be Twelve Million One Hundred Nine Thousand Sixty-Nine and No/100 Dollars ($12,109,069.00) as shown on the attached E7~IT B less a credit in the amount set forth in Section 2.03 below, and as may be further adjusted as provided in this Section and in SECTION 3, payable in immediately available funds to Seller at Closing. 4. Paragraph 2.02 of the Agreement is deleted in its entirety and replaced with the following: 2.02. The Purchase Price shall be increased by such amounts} as may be necessary to compensate Seller for (a) any Building construction costs and/or expenses not .included in the Guaranteed Maximum Price (as hereinafter defined} that are compensable pursuant to the Agreement For Construction Manager at Risk Services, as amended ("the Construction Agreement"}, by and between Seller and Purchaser, and (b} any Building construction costs and/or expenses not included in the Building Construction Budget that are incurred by Seller by reason of a change order or change order directive issued by Purchaser. The Purchase Price purchases the Property and includes (1) the construction of the shell of the Building, (2) the exterior improvements to the Real Property and (3) the Interior Upfit Allowance, which, among other things, make up the "Guaranteed Maximum Price." 2 Q 5. Paragraph 2.03 of the Agreement is deleted in its entirety and replaced with the following: 2.03 The Purchase Price shall be credited by Two Hundred Seven Thousand Three Hundred Ninety-Four and No/100 Dollars ($207,394.00), the cost of all design professionals whose contracts} are assigned to Purchaser pursuant to N.C. Gen. Stat. Section 143-64.31 less any amount of such budgeted cost Seller has paid such design professionals as shown on the attached EXAIBIT C. 6. Pazagraph 5.04 of the Agreement is deleted in its entirety and replaced with the following: 5.04 As a further condition precedent to Purchaser's obligation to close the purchase of the Property, Seller and Purchaser shall have made and entered into a written lease agreement pursuant to which Seller shall lease to Purchaser, upon terms and conditions mutually satisfactory to Seller and Purchaser, the exclusive use of the Allocated Parking Spaces. As used herein, "Allocated Parking Spaces" shall mean two hundred (200) pazkang spaces in the parking deck constructed by Seller on a tract of land lying south of the Property and north of N & K Street which shall be allocated for the exclusive use of the owner of the Building and such owner's tenants, employees, customers, guests, licensees and invitees. Allocated Parking Spaces was determined by subtracting from two hundred forty-three (243) the number of parking spaces which shall have been licensed by Seller to Purchaser or otherwise made available or reserved for the exclusive use of Purchaser within the project complex (including the Real Property, the parking deck, the proposed Orange County library tract and the Gateway Center Building tract}. Seller and Purchaser acknowledge that it is their intent that a total of two hundred 3 l~J forty-three {243) parking spaces shall be allocated to Purchaser within the project complex for Purchaser's use of the Building, Units 200 and 300 in the Gateway Center Building and the proposed Orange County library. Only to the extent that such parking spaces could not be accommodated within the project complex and outside the parking deck were parking spaces allocated to Purchaser within the parking deck. 7. The preamble to Section 9 of the Agreement is deleted in its entirety and replaced with the following: Seller represents and warrants to Buyer (each of which representations and warranties shall be true as of the Date of Agreement and as of the Closing) as follows: 8. Continued Force and Effect. The Parties confirm the Agreement as amended by this Amendment and acknowledge and agree that, as amended by this Amendment, the Agreement is binding and is and remains in full force and effect. 9. Counterparts. This Amendment may be executed in any number of counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all Parties have not signed the same counterpart. Any signature delivered by a party by facsimile transmission or by sending a scanned copy of the executed Amendment by electronic mail shall be deemed, and shall have the same force and effect as, an original signature hereto. Signature Page to Follow] 4 0 IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreerrlent to be executed by its duly authorized representative(s) as of the day and year indicated below. SELLER: Telesis Construction Management, LLC, a North Carolina limited liability company By: {SEAL) George A. Horton, III, Member/Manager By: (SEAL) James W. Pazker, Jr., Member/Manager Date: PURCHASER: Orange County, North Carolina, a body politic and corporate and a political subdivision of the State of North Carolina. By: Name: Title: Date: (SEAL) F:V..isa~orangecountylAgreement of Purchase and Sale Office Bldg.doc 1 292 510 11Nri138Amendment toOffice Building Purchase Agreement (02.27.09 WDB ltl. Draft #2) GEG CL 36{19 5 /D Exhibit B: Purchase and Sale Amendment Reconciliation: Office Bidg pars 2.01 Original Contract Purchase Prtce Sustainable 4 Pipe HVAC System Office Bldg 11,276,122 280,708 Generator, Structural Steel, and Site Revisions2 432,388 Contract UpfRAllovaance Adjustment 119,851 Amended Purchase Price 12,109,069 Footnotes 1 -This represents the sustainable designs approved by the BOCC an 11/6/08 2 -These costs are approved alternates and changes to those alternates that arcived after bid. The changes are the result of 1)post-design structural steel reinforcement for roof mounting of the generators instead of generator placement in the alleyway between the iwa buildings, a change needed to accommodate service vehides in the alleyway; 2) the availability of more effident HVAC controls for more effiaent and sustainable operation of the office building; and 3) mathematical recondliation between tfie conventional design and the sustainable design cysts. These additional costs are reasonable for the work to be performed. 3 -Adjustments made due to the adual bid cost of the building upfits related to the contractual allowances described in paragraph 2.02 of the original Purchase and Sale Agreement // Exhibit C: Design Cost Credit due to County: Orange County Office Bidg pars 2.03 and Engineering Brockwell 8~ Associates Architecture Development Plan Architecture Structural Engineer EDi Engineering Plumbing, Mechanical and Electrical Engineering Construction Administration Fee Adjustment Total of Contract Amounts Orange County Office Bldg 4,200 142,435 35,000 67,600 9, 828 259,063 Less Contract Fees Paid by Telesis-Original' (46,755) - Construction Admin2 (4,914) Credit Sum due Orange County 207,394 1 -The basic services fees for design of the Office Building and Library were included in the original Purchase and Sale Agreement with Telesis Construction Management Since these fees are now the County's responsibility, the fees are being credited in this Agreement to the County. The original fees of $397,806 were approved by the BOCC on 12h 1/07. This net figure represents the true credit since Telesis had previously paid $74,215 of this $397,806. The number footnoted is the office building share of the amount paid by Telesis. 2 -The professional design fees that were originally represented in the Purchase and Sale Agreement did not include design and engineering construction administration . fees. This amount represents a crediE to the County for fifty percent of the total of $15,600 of additional fees. Telesis Construction Management has agreed to pay the other half. The number foo#noted is the office building share of the amount paid by Telesis. 1 .z Abp ~+ .c.~C ~-~ ~ ORANGE COUNTY NORTH CAROLINA AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (LIBRARY BUILDING) THIS AGREEMENT OF PURCHASE AND SALE (LIBRARY BUILDING) ("AgreemenP') is made effective this day of , 2009, {the "Execution Date") by and between TELESIS CONSTRUCTION MANAGEMENT, ~LLC, a North Carolina limited liability company {uSeller"}, and ORANGE COUNTY, NORTH CAROLINA, a body corporate and politic and a political subdivision of the State of North Carolina ("Purchaser"). WITNESSETH: WHEREAS, Seller and Purchaser entered into an Agreement of Purchase and Sale (Library Building} made effective February 1, 2008 (the "AgreemenP~ which agreement provides for the sale and purchase of a public library to be constructed and located in Hillsborough, North. Carolina; and WHEREAS, the parties have previously agreed to amend the Agreement and agree the Agreement needs further amendment all as described herein. NOW, THEREFORE, in consideration of good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Incorporation of Preamble and Recitals. The preamble and recitals to this Amendment are hereby incorporated herein by reference and made a part of this Amendment. 2. DeSnitions. All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Agreement. All references in the Agreement to "this 13 _ Agreement" shall be deemed to be the Agreement as amended by this Amendment unless the context requires otherwise. 3. Paragraph 2.01 of the Agreement is deleted in its entirety and replaced with the following: 2.01 The purchase price (the "Purchase Price") for the Property shall be Six Million Four Hundred Ninety-Three Thousand Five Hundred Sixty-Seven and No/100 Dollars ($6,493,567.00) asshown on the attached EXHIBIT B less a credit in the amount set forth in Section 2.03 below, and as may be further adjusted as provided in this Section and in SECTION 3, payable in immediately available funds to Seller at Closing. 4. Paragraph 2.02 of the Agreement is deleted in its entirety and replaced with the following: 2.02 The Purchase Price shall be .increased by such amount(s) as may be necessary to compensate Seller for {a) any Building construction costs and/or expenses not included in the Guaranteed Maximum Price (as hereinafter defined) that are compensable pursuant to.the Agreement For Construction Manager at Risk Services, as amended ("the Construction Agreement"), by and between Seller and Purchaser, and (b) any Building construction costs and/or expenses not included in the Building Construction Budget that are incurred by Seller by reason of a change order or change order directive issued by Purchaser. The Purchase Price purchases •the Property and includes (1}the construction of the shell of the Building, (2) the exterior improvements to the Real Property and (3) the Interior Upfit Allowance, which, among other things, make up the "Guaranteed Maximum Price." 2 ~~ 5. Paragraph 2.03 of the Agreement is deleted in its entirety and replaced with the following: 2.03 The Purchase Price shall be credited by One Hundred Twenty-three Thousand Nine Hundred Ninety-Seven and No/100 Dollars ($123,997.00), the cost of all design professionals whose contract{s) are assigned to Purchaser pursuant to N.C. Gen. Stat. Section 143-64.31 less any amount of such budgeted cost Seller has paid such design professionals as shown on the attached EDIT C. 6. Paragraph 5.04 of the Agreement is deleted in its entirety and replaced with the following: 5.04 As a further condition precedent to Purchaser's obligation to close the purchase of the Property, Seller and Purchaser shall have made and entered into a written lease agreement pursuant to which Seller shall lease to Purchaser, upon terms and conditions mutually satisfactory to Seller and Purchaser, the exclusive use of the Allocated Parking Spaces. As used herein, "Allocated Parking Spaces" shall mean two hundred (200) parking spaces in the parking deck constructed by Seller on a tract of land lying south of the Property and north of N & K Street which shall be allocated for the exclusive use of the owner of the Building and such owner's tenants, employees, customers, guests, licensees and invitees. Allocated Parking Spaces was determined by subtracting from two hundred forty-three (243) the number of parking spaces which shall have been licensed by Seller to Purchaser or otherwise made available or reserved for the exclusive use of Purchaser within the project complex (including the Real Property, the parking deck, the proposed Orange County office building tract and the Gateway Center Building tract). _ Seller and Purchase acknowledge that it is their intent that a total of two 3 ~S hundred forty-three (243} parking spaces shall be allocated to Purchaser within the project complex for Purchaser°s use of the Building, Units 204 and 300 in the Gateway Center Building and the proposed Orange County office building. Only to the extent that such parking spaces could not be accommodated within the project complex and outside the parking deck were parking spaces allocated to Purchaser within the parking deck. 7. The prefatory clause to Section 9 of the Agreement is deleted in its entirety and replaced with the following: Seller represents and warrants to Buyer (each of which representations and warranties shall be true as of the Date of Agreement and as of the Closing} as follows: 8. Continued Force and Effect. The Parties confuxn the Agreement as amended by the Amendment and acknowledge and agree that, as amended by this Amendment, the Agreement is binding and is and remains in full force and effect. 9. Counterparts. This Amendment maybe executed in any number.of counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all Parties have not signed the same counterpart. Any signature delivered by a party by facsimile transmission or by sending a scanned copy of the executed Amendment by electronic mail shall be deemed, and shall have the same force and effect as, an original signature hereto. [Signature Page to Follow) 4 r~ IN WITNESS WFlEREOF, Seller and Purchaser have each caused this Agreement to be executed by its duly authorized representative(s) as of the day and year indicated below. SELLER: Telesis Construction Management, LLC, a North Cazolina limited liability company gy: (SEAL) George A. Horton, IlI, Member/Manager gy; {SEAL} James W. Parker, Jr., Member/Manager Date: PURCHASER: Orange County, North Carolina, a body politic and corporate and a political subdivision of the State of North Carolina By; (SEAL} Name: Title: Date: F:U..isa~orangecountylAgreement of Purchase and Sale Library Bldg.doc t2925\O1~M1139Amendment to Library Purchase Agreanent (02.27.09 WDB RL lh~t #2) GEG CL 3609 5 /7 Exhibit 8: Purchase and Sale Amendment Reconciliation: Library pars 2.01 Library Original Contract Purchase Price 6,662,957 Sustainable 4 Pipe HVAC System' 164,861 Generator, Structural Steel, and Site Revisionsz 253,942 Contract Upfit Allowance Adjustment' {588,193) Amended Purchase Price fi,493,567 Footnotes 1 -This represents the sustainable designs approved by the BOCC on 1116108 2 -These costs are approved alternates and changes to those alternates that arrived after bid. The changes are the result of 1)post-design structural steel reinforcement for roof mounting of the generators instead of generator placement in the alleyway between the two buildings, a change needed to accommodate senrice vehicles in the alleyway; 2) the availability of more efftcient HVAC controls for more efficient and sustainable operation of the library; and 3) mathematical reconciliation between the conventional design and the sustainable design costs. These additional costs are reasonable for the work to be performed. 3 -Adjustments made due to the actual bid cost of tha building upfits related to the contractual allowances described in paragraph 2.02 of the original Purchase and Sale Agreement. !~ Exhibit C: Design Cost Credit due to County: Orange County Library para 2.03 Engineering Contract Amounts Brockweil ~ Associates Architecture Library Development Plan 4,200 Architecture 91,471 Structural Engineer . .17,500 EDi Engineering Plumbing, Mechanical and Electrical Engineering 35,400 Construction Administration Fee Adjustment 5,772 Total of Contract Amounts Less Contract Fees Paid by Telesis-Original' {27,460} - Construction Admin2 (2,886) Credit Sum due Orange County 123,997 1 -The basic services fees for design of the Office Building and Library were included in the original Purchase and Safe Agreement with Telesis Construction Management. Since these fees are now the County's responsibility, the fees are being credited in this Agreement to the County. The original fees of $397,806 were approved by the BOCC on 12/11/07. This net figure represents the true credit since Telesis had previously paid $74,215 of this $397,806. The number footnoted is the library share of the amount paid by Telesis. 2 -The professional design fees that were originally represented in the Purchase and Sale Agreement did not include design and engineering construction administration fees. This amount represents a credit to the County for fifty percent of the total of $15,600 of additional fees. Telesis Construction Management has agreed to pay the other half. The number footnoted is the library share of the amount paid by Telesis. rr . Q ~~lra.c~- ~~It~-c>hm ~ PARKING DECK LEASE AND RIGHT OF FIItST OFFER AND RIGHT OF FIRST REFUSAL THIS PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL ("Lease"} is made and entered into effective as of February 25, 2009 by and between ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Suite I09, Hillsborough, NC 27278 ("Lessor"), and ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate and a political subdivision of the State of North Carolina, P.O. Box 81.81, Hillsborough, NC 27278 ("Lessee"). WITNESSETH: WHEREAS, Lessor owns and operates a private parking deck located on the north side of N&K Street and west of South Churton Street in Hillsborough, Orange County, North Carolina, containing four hundred nine (409) parking spaces (the "Parking Deck"); and WHEREAS, Lessee leases, owns and/or has contracted to purchase certain public use facilities adjoining or in close proximity to the Parking Deck, each of which requires parking for Lessee's employees, customers, guests and invitees; and WHEREAS, Lessor has agreed to lease to Lessee, and Lessee has agreed to lease from Lessor, certain parking spaces in the Parking Deck subject to and in accordance with the terms, covenants and. conditions set forth in this Lease; and WHEREAS, Lessor has agreed to convey to Lessee, and Lessee has agreed to accept from Lessor, a right of first~offer and right of first refusal to purchase the Parking Deck and the Properly on which the Parking Deck is located, which Property is described particularly on the attached EXHIBIT A which is incorporated herein by this reference. NOW, THEREFORE, for and in consideration of the premises, the mutual covenants set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: Section 1 Lease. Subject to the terms, covenants and conditions set forth in this Lease, Lessor hereby leases unto Lessee for the benefit of Lessee and Lessee's employees, customer, guests and invitees, and Lessee hereby leases from Lessor, two hundred (200) designated parking spaces in the Pazking Deck as identified on the attached EI~~IT B which is incorporated herein by this reference (the "Parking Spaces"); provided, however, that the number of Parking Spaces may be increased or decreased from time to time during the Term as provided in this Lease. Notwithstanding the foregoing, {a) Lessor reserves the right, with the prior written consent of Lessee, to relocate some or all of the Parking Spaces to other locations in the Parking Deck from time to time during the Term; and (b) Lessee and Lessor agree to cooperate in a reasonable manner to effect the temporary release of some or all of the Parking Spaces to Lessor from time to time, at a cost to Lessor or a reduction in Annual Rent and Shared Operating Costs as agreed by Lessee and Lessor in writing and in advance, when the use of such Parking Spaces is not required by Lessee. Section 2 Term. The initial term of this Lease shall commence (a) on February 25, 2009 with respect to one hundred twenty { 120) Pazking Spaces located on the third and fourth levels of the Parking Deck as identified on the attached EI~~IT B, and (b) on the date of the closing ("Closing") of the sale by Telesis Construction Management, LLC to Lessee, and the purchase by Lessee from Telesis Construction Management, LLC, of the Public Library and Office Building presently under construction north of the Parking Deck with respect to eighty {80) Parking Spaces located on the ground level of the Pazking Deck as identified on the attached EXIDBIT B. The initial term of this Lease shall expire with respect to alI Parking Spaces, if not sooner terminated as provided herein, at 11:59:59 p.m. (local time} on December 31, 2049. Commencing on January 1, 2050, the initial term of this Lease shall automatically renew for successive periods of one (1) calendar each (commencing on January 1 of each calendar year and ending on December 31 of the same calendar year at 11:59:59 p.m. (local time)), unless and until sooner terminated by either party as provided below. When and as used in this Lease, "Term" shall mean the initial term of this Lease and each renewal term. At any time subsequent to the expiration of the initial term of this Lease, either parry may terminate this Lease with respect to any or all of the Parking Spaces, in its sole discretion, upon delivering written notice of termination to the other party not less than one hundred eighty {180) days prior to the date of termination. Lessor may at any time terminate this Lease with respect to any or all of the Parking Spaces, for cause, in the event Lessee shall (a) default in the performance of any of its obligations pursuant to this Lease and (b) fail to cure such default within thirty (30) days after Lessor shall have delivered to Lessee written notice of default and demand for cure. Lessee may at any time terminate this Lease with respect to any or all of the Parking Spaces, for cause, in the event Lessor shall (a) default in the performance of any of its obligations pursuant to this Lease and (b) fail to cure such default within thirty (30) days afler Lessee shall have delivered to Lessor written notice of default and demand far cure. Section 3 Annual Rent, Maintenance Costs and Oneratin~ Costs. (a) Annual Rent. Lessee shall pay to Lessor each calendar year during the Term, in advance, Annual Rent for Lessee's lease of the .Parking Spaces in the amount of One Dollar ($1.00) multiplied by the number of Parking Spaces then leased to Lessee pursuant to the terms of this Lease. Annual Rent in the amount of One Hundred Twenty and No/100 Dollars {$120.00) for one hundred twenty (120) parking spaces for calendar year 2009, pro-rated as of February 25, 2009 ($101.92), shall be due and payable, in full, on February 25, 2009. Annual Rent in the amount of Eighty and No/100 Dollars {$80.00) for eighty (80) parking spaces for calendar year 2009, pro-rated as of the date of Closing, shall be due and payable, in full, on the date of Closing. Annual .Rent for two hundred (200) Parking Spaces for calendar year 2010 in the amount of Two Hundred and No/100 Dollazs ($200.00) shall be due and payable, in full, on January 10, 2010. Annual Rent for each subsequent calendar year during the Term shall be due and payable, in full, on the tenth { 10°i) day of January of each such calendar year. Lessee's failure to pay any Annual Rent by the twentieth (20`~ day of the month when due shall constitute a default under this Lease. In the event the termination date of this Lease with respect to any or all of the Parking Spaces shall not be December 31 of any calendar year, the Annual Rent for the calendar year in which this Lease terminates with respect to such Parking Spaces shall be pro-rated as of the date of such termination. (b) Shared Operating Costs -Calendar Year 2009. In addition to Annual Rent pursuant to paragraph 3(a) above, Lessee shall pay to Lessor for the 2009 calendar year the sum of Fourteen Thousand Five Hundred Ninety and 55/100 Dollars ($14,590.55) for one hundred twenty (120) parking spaces for the period commencing on February 25, 2009 and ending on December 31, 2009. Such sum shall be paid in full by Lessee not later than April 10, 2009. In addition to Annual Rent pursuant to pazagraph 3(a) above, Lessee shall also pay to Lessor for the 2009 calendar yeaz the sum of Eleven Thousand Four Hundred Fifty-Two and 80/100 Dollars ($11,452.80), pro-rated as of the date of Closing, for the remaining eighty (80) parking spaces for the period commencing on the date of Closing and ending on December 3l, 2009. Such sum shall be paid by Lessee on the date of Closing. The parties acknowledge and agree that the above-stated sums represent the estimate of Lessee's pro-rata share of Shared Operating Costs (as hereinafter defined) for the 2009 calendar year. -2- z/ (c) Shared Operating Costs -Remainder of Term. Commencing on January 1, 2010, Lessee shall pay to Lessor each calendar year during the Term, in addition to the Annual Rent required to be paid by Lessee to Lessor pursuant to paragraph 3(a) above, a sum equal to Lessee's pro-rata share of Shared Operating Costs incurred by Lessor during the preceding calendar yeaz multiplied by the number of Parking Spaces leased to Lessee pursuant to this Lease during such preceding calendar year. On or before March 31 of each calendar yeaz during the Term commencing in calendar year 2010, Lessor shall deliver to Lessee a written statement of Lessee's pro-rata share of Shared Operating Costs for the preceding calendar year. Lessee shall pay such pro-rated shaze of Shared Operating Costs to Lessor on or before July 10 of each calendar year during the Term. Lessee's pro-rata share of Shared Operating Costs for each calendar year during the Term shall be determined by multiplying the Shared Operating Costs for the preceding calendar year by a fraction, the numerator of which shall be the number of Parking Spaces leased to Lessee pursuant to the terms of this Lease during such preceding calendar year, and the denominator of which shall be four hundred nine (409}, the total number of parking spaces in the Parking Deck. When and as used in this Lease, the term "Shared Operating Costs" shall mean the total amount of all "Shared Operating Costs" expense items listed on.the attached EDIT C incurred.by Lessor in a particular calendar yeaz; provided, however, that the management fee for calendar years 2009 and 2010 shall not exceed Twelve Thousand and No/100 Dollars ($12,000.00) and the management fee shall not thereafter be increased or decreased by more than one and one half percent (1'/z%) per calendar year unless a different increase or decrease is agreed upon, in writing, by Lessor and Lessee. Section 4 Ri hg t of First Offer to Purchase and Right of First Refusal. Subject to the tenors of this Lease, Lessor expressly reserves the right to sell the Property at anytime during the Term, including any extension thereof. However, Lessor covenants that it will not list nor offer the Property for sale without first giving Lessee written notice, in the manner prescribed in paragraph 6(d) of this Lease for Notices, of its desire to sell the Property and having allowed Lessee forty-five days from and after the date of such notice in which to attempt to secure a binding written agreement with Lessor for the purchase of the Property by Lessee. Lessor agrees that any and all offers to purchase submitted by Lessee during said forty-five day period will be held in strictest confidence, will be given every reasonable consideration in good faith, and if unacceptable, will remain confidential and will not be used at any tame to enhance its efforts to otherwise market said Property. Lessor further grants to Lessee during the Term, including any extension thereof, the exclusive right at Lessee's option to purchase the Property on the same terms and at the same price as any bona fide offer for the Property received by Lessor that Lessor desires to accept. Upon receipt of any such bona fide offer, and each time any such bona fide offer is received, Lessor shall immediately notify Lessee, in the manner prescribed in paragraph 6(d) of this Lease for Notices, of the full details of such offer, including a copy of the same (the name and address of the offeror may be omitted if Lessee is unwilling or unable to maintain the name and address of the offeror's confidentiality), whereupon Lessee shall have thirty (30) days after receipt of such notice in which to elect to exercise this right of first refusal. No sale of or transfer of title to the Property shall be binding on Lessee unless and until these requirements are fully complied with. The right of fast refusal herein granted shall be continuing and pre-emptive, binding on the Lessor's successors or assigns, and the failure of Lessee to exercise same in any one case shall not affect Lessee's right to exercise such right of first refusal in other cases thereafter arising during the Term or any extension of the Term. Upon Lessor and Lessee reaching a binding written agreement for the purchase and sale of the Property, or upon Lessor's receipt of Lessee's notice of election to exercise any right of fu~st refusal granted herein, Lessee shall have a reasonable time in which to examine title to the Property, but in no event more than thirty (30) days, and, upon completion of such examination, if the title is found to -3- Z~ be satisfactory, Lessee shall tender the purchase price to Lessor and Lessor shall thereupon deliver to Lessee a good and sufficient Special Warranty Deed conveying the Property to the Lessee free and clear of all encumbrances. All Annual Rent and Shared Operating Costs shall be pro-rated between grantor (Lessor) and grantee (Lessee) as of the date of the closing of the purchase and sale of the Property. Current year's ad valorem property taxes on the Property shall be paid or prepaid by grantor (Lessor) with grantee's (Lessee's)pro-rated share of those taxes added to the agreed purchase price. Lessee's notice of election to purchase pursuant to the right of first refusal granted herein shall be sufficient if deposited in the United States mail, postage prepaid, addressed to Lessor at Lessor's address contained in paragraph 6(d) of this Lease concerning Notices, at or before midnight of the day on which the right of fast refusal expires. Section S Representations and Warranties of Lessor. Lessor represents and warrants to Lessee (each of which representations and warranties shall be true as of the date Lessor executes this Lease and as of the commencement of the initial term of this Lease) as follows: 5.01 Lessor is a limited liability company duly organized, validly existing and in good standing in accordance with the laws of the State of North Carolina. Lessor has full right, power and authority to enter into this Lease and to consummate the Lease contemplated herein; all required action necessary to authorize Lessor to enter into this Lease and to consummate the Lease contemplated herein has been taken, and the joinder of no person or entity other than Lessor will be necessary to convey the Property fully and completely to Lessee as provided herein. 5.02 No person has been granted any license, lease or other right relating to the use or possession of any of the Parking Spaces herein leased to Lessee except to the extent otherwise expressly provided in this Lease. No person has been granted an option to purchase, a right of first offer or a right of first refusal as to the Property except Lessee as expressly provided in this Tease. 5.03 To the best of Lessor's knowledge, there is no action, suit or proceeding pending or threatened against or affecting the Property or any part thereof, or relating to or arising out of Lessor's ownership of the Property or any part thereof, or by any federal, state, county or municipal department, commission ,board, bureau or agency or other governmental instrumentality, nor is there any attachment, execution, assignment for the benefit of creditors or voluntary or involuntary proceeding in bankruptcy or under other debtor relief laws contemplated by or pending or threatened against Lessor or the Properly. 5.04 There exists no contract, service agreement or obligation affecting the Properly which is in addition to or different from those which have been furnished or otherwise disclosed to Lessee. 5.05 Lessor has no knowledge of any release, discharge or storage of any Hazardous Material on or upon the Property or any part thereof in violation of any Environmental Laws. Lessor will not permit, suffer or allow any such Hazardous Material to be released, discharged or stored upon the Property or any part thereof in violation of any Environmental Laws at any time during the Terns or prior to a closing of the purchase and sale of the Property in the event Lessee exercises the right of first offer or right of first refusal provided for herein. For purposes of this Lease, Hazardous Materials means and includes petroleum, petroleum byproducts, (including, but not limited to,) crude oil, diesel oil, fuel oil, gasoline, Lubrication oil, oil refuse, oll mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless of specific gravity, natural or synthetic gas products, asbestos, PCB, and/or any hazardous substance or -4-- 23 material, waste,, pollutant or contaminant, defined as such in (or for the purposes of) any Environmental Laws. For purposes of this Lease, Environmental Laws means the Comprehensive Environmental Response, Compensation and Liability Act as amended, the Resource Conservation Recovery Act as amended, the Clean Air Act, the Clean Water Act, any "Superfund" or "Superlien" law, the North Carolina Oil Pollution and Hazardous Substance Control Act of 197b, or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning any petroleum, petroleum byproduct (including, but not limited to, crude oil, diesel oil, fuel oil, gasoline, lubrication oil, oil refuse, oil mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless of specific gravity), natural or synthetic gas, asbestos, FCB, products ~ and/or hazardous substance or material, toxic or dangerous waste, substance or material, pollutant or contaminant, as may now or at any time hereafter be in effect. Section 6 Miscellaneous. (a) Access Control. Lessor reserves the right to install such systems, equipment and apparatus, from time to time, as it may deem reasonably necessary to control and regulate access to the Pazking Deck, including, without limitation, the issuance of electronic access cards or codes and/or identification cards. Lessee acknowledges that it shall be obligated to pay to Lessor the reasonable cost of any such access cazds or codes and/or identification cards in addition to the Annual Rent and the pro-rata share of Operating Costs required to be paid by Lessee pursuant to this Lease. (b} Maintenance. At alI times during the Term, Lessor shall be responsible for the maintenance, upkeep and repair of the Parking Deck and adjoining grounds. Lessee acknowledges that the temporary unavailability of any Parking Spaces which may at any time exist as a consequence of any necessary maintenance, repair or replacement of the Parking Deck, any means of access to the Parking Deck, or any water, sewer, electric or other public or private utility located in, on, upon or under the Parking Deck, shall not be deemed an unreasonable interference with the Lessee's lease of the Parking Spaces, nor a default by Lessor under this Lease, In such event, the Annual Rent and the pro-rata share of Operating Costs payable by Lessee with respect to any such unavailable Parking Spaces shall abate during the period of such unavailability unless Lessor is able to provide Lessee with replacement parking spaces in the Parking Deck or in reasonably close proximity thereto. (c) Parking Spaces on N&K Street. Lessor and Lessee acknowledge and agree that the number of Parking Spaces has been determined, in part, on the expectation of both parties that Lessee will have, at all times during the Term, the exclusive use of nineteen (19) parking spaces adjacent to the Parking Deck on N&K Street, at no cost to Lessee, during normal Orange County business hours. Consequently, in the event Lessee shall no#, for any reason, have and enjoy, at any time during the Term, and at no cost to Lessee, the exclusive use of nineteen (19) parking spaces adjacent to the Parking Deck on NBcK Street during normal Qrange County business hours (with the exception of any temporary unavailability of such parking spaces as a consequence of street or utility maintenance and/or repair), the number of Parking Spaces shall be increased by a number equal to the number of parking spaces that are 'not available to Lessee as provided above. Lessor covenants and agrees to promptly make application to the Town of Hillsborough and to prosecute an application for the abandonment of so much of the public right of way of N&K Street as will be necessary to insure Lessee's exclusive use of these nineteen (19) parking spaces. Lessee covenants and agrees to cooperate with Lessor, in such manner as may reasonably be requested by Lessor, with respect to any right of way abandonment application and process with the Town of Hillsborough. (d) Notices. AlI notices and statements required or permitted by this Lease to be given to the parties or to either of them shall be deemed sufficiently given and delivered when made in .writing and personally delivered to the parties or delivered by need day courier service (i.e. FedEx, UPS, etc.), or -5- z~ delivered by the United States Postal Service via certified mail, return receipt requested, postage prepaid and addressed to the appropriate party(ies) at the following address(es): If to Lessor: Eno River Parking Deck, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 Attention: George A. Horton, III If to Lessee: Orange County, North Carolina P.O. BOX 8181 Hillsborough, NC 27278 Attention: Pam Jones, Director of Purchasing and Central Services Any such notice or statement delivered by personal delivery shall be deemed delivered and received as of the date of personal delivery. Any notice or statement delivered by Held day courier service or United States certified mail as provided above shall be deemed delivered when delivered to the next day courier service or deposited in the United States mail, and the delivery confirmation or return receipt therefrom, as applicable, shall be deemed prima facie evidence that such notice or statement was received on the date stated on such delivery confirmation or return receipt. (e) Remedies. In the event either party shall (i) default in the performance of any of its obligations pursuant to this Lease and (ii) fail to cure such default within thirty (30) days after the non- defaulting party shall have delivered to the defaulting party written notice of default and demand for cure, the non-defaulting party shall, in addition to any and all rights and remedies otherwise provided in this Lease, have any and all rights and remedies as may be available to it at law or in equity for breach of contract. (f) Waiver. No term, condition or covenant contained in this Lease shall be deemed waived by any act, omission or forbearax-ce, or any series of same, by either Lessor orLessee. The only waivers that shall be efFective under this Lease shall be those which are in writing and signed by the party to be chazged. No prior notice of non-waiver need be given by a parry who has previously forborne from exercising a right hereunder. (g} Condominium Unit Lease. Lessor, Lessee and Telesis Construction Management, LLC acknowledge and agree that this Lease replaces, in its entirety, paragraph 3.01(b} of that certain Lease Agreement made and entered irrtb by and between Telesis Construction Management, LLC and Lessee having an effective date of February 28, 2007 (the "Condominium Unit Lease"}, and both Telesis Construction Management, LLC and Lessee are hereby released and dischazged from their respective obligations pursuant to paragraph 3.01 (b} of the Condominium Unit Lease. Telesis Construction Management, LLC and Lessee acknowledge that the Parking Area located on the west side of the Gateway Center building that is designated a Class N Limited Common Element in the Declaration of Gateway Center Condominium, which Declaration is recorded at Book 4458, Page 3, Orange County Registry, and identified as "Parking Area 1705 Sq. Ft. 0.039 Acres Class N Limited Common Element Maximum Number of Spaces (Perpendicular) = 7" on the Gateway Center Condominium plat recorded at Plat Book 103, Page 70, Orange County Registry is not replaced, superceded or in any manner affected by this Lease. Telesis Construction Management, LLC joins in the execution of this Lease for the sole and exclusive purpose of acknowledging and consenting to the provisions of this paragraph b(g). Telesis Construction Management, LLC shall not otherwise be bound or obligated, in any manner, by any provision of tbis Lease. (lr) No Joint Venture. Nothing in this Lease shall constitute or be construed to constitute a joint venture between Lessor and Lessee. -6- ~S (i) No Third Party Beneficiaries. Neither party intends to confer any rights under this Lease upon any third party. Standing #o enforce this Lease shall rest exclusively in the parties hereto. (j) Headings: The section and paragraph headings in this Lease are inserted for convenience only and are in no way intended to interpret, define, or limit the scope of content of this Lease or any provision hereof. (k) Surviving Clause. The provisions of this Lease relating to any payment or other obligation required to be made or otherwise performed by either party subsequent to any termination of this Lease shall survive any termination of this Lease by either party whether as a matter of right or in breach of this Lease, notwithstanding any other provision in this Lease to the contrary. (1) Governing Law and Jurisdiction. This Lease shall be governed by and construed, interpreted and enforced in accordance with the laws and decisions of the State of North Carolina. Any action or proceeding brought by any party to construe, interpret or enforce this Lease or any provision hereof shall be brought in the state or federal courts of North Carolina.. Each of the parties to this Lease hereby submits and consents to the jurisdiction of such courts. (m) Successors and Assigns. This Lease shall be binding upon and inure to the benefit of Lessor and Lessee and their respective successors and assigns, if any. (n) Counterparts. This Lease may be executed and delivered in several counterparts, and all such counterparts so delivered and executed shall constitute but one and the same instrument (o) Recordation. Upon the request of either party, the other party will in good faith cooperate in the preparation and execution of a recordable Memorandum of Lease. IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to be executed by its duly authorized representative(s) on the day and year indicated below. LESSOR: By: Eno River Parking Deck, LLC, a North Carolina. limited liability company George A. Horton, IIl, Member/Manager By: James W. Parker, Jr., Member/Manager (SEAL) (SEAL} Date: [SIGNATURES CONTINUE ON NEXT PAGE] -'7 - ~y LESSEE: Orange County, North Carolina, a body pofitic and corporate and a political subdivision of the State of North Carolina gy; {SEAL) Name: Title: Date: [SIGNATURES CONTINUE ON NEXT PAGE] -8- C, By: Telesis Construction Management, LLC, a North Carolma limited liability company (SEAL) George A Horton, III, Member/Manager By: (SEAL) James W. Parker, Jr., Member/Manager [SIGNATURES PAGES CONCLUDE] 129251011M~100Parking beck Leese Agreement (0220.09 WDB CL DcaB #3) GEG CL 3609 -9- z8 EXIIQBIT A (Parking Deck Proaerty Descriationl Being all of Lot 3, containing 1.00 acre, more or less, as shown on that certain plat of survey recorded in Plat Book 103, Page 20, Orange County Registry, reference to which plat of survey is hereby made for a more particular description oi` Lot 3. -10- EXFlaBIT B IDENTIFICATION OF PARKING SPACES One hundred twenty (120) parking spaces (nos.182, 292-386, 388-411, inclusive} located on the third and fourth Levels of the Parking Deck as generally illustrated on sheets D-2 and D-3 of that certain drawing entitled "GATEWAY CENTER PARKING" (last updated 2/25/09) prepared by or on behalf of Brockwell Associates, Inc., a copy of which drawing is attached hereto and incorporated, herein by this reference. 2. Eighty (80) parking spaces (nos. 1 through 80, inclusive) located on the ground level of the Parking Deck as generally illustrated on sheet D-1 of that certain drawing entitled "GATEWAY CENTER PARKING" (last updated 2/25/09) prepared by or on behalf of Brockwell Associates, Inc., a copy of which drawing is attached hereto and incorporated herein by this reference. -11- EXFIIBIT C -12- • GATEWAY CENTER PARKING EXHI$IT B (2 ,.., I I ~ ~ ~ I 'o° I s I~ i ~ ~ ~ a~. N ~ ~ ~ ...may . -----. ~.w. ~ , ~ ~..I I .; ~: ~j~ m-.mim;mmm~aomimm cml® co'm~® I: I i; ~ i ::~. ;~ ~, ~ - e I:I iIi ~ • ~~~ I ~ ~ PROP08RU LIBRARY 8EE 9i1EET3 o-1.6a Alm ~ ~ l` "' ""jl i etat.ouaa _....j exlsnno aaFOROL3cLLPr~lawa ~ ~ ~ • ~ ~ za.~sc • a sroRY RaINO>+Tlori ~ I , ~~ 8 . :.. Ili - - - - --• ~---•_ ~~~ _ ; IR .I 1 ": +- ~ ~ i 8 . ._. 25-2009) ~~ • ~-q H 3a ~ ~ 4 U 8~ - w ~~~ _ . OF 1 4 GkTEYVAY CENTER PARKING EXHIBIT B {2-25-2009} I f uaw aIf Q ~ ~z D+.oT ~ `~O PARKING DECK -LEVEL 1 - 93 SPACES ~ Na .,.ol~ Q z CJ I ~ ~~ ~~ ~ ~z x Q VS 1 ~ ~O ~-^- U)O Q 00~ • C~ N~ CQUNTY PARKJNG DATA; ~ e~~t ~~ q COUNTY SPACES - PARXING DECK GROUND LEVEL 80 SPACES ~s~~~ COUNTY SPACES -PARKING DECK UPPfR LEVEL 120 SPACES ~~~~ COUNTY SPACES - UEU2ARY/0FFlCE PARKING 75 SPACES i COUNTY SPACES - ON GRADE PARKING LOT 2D SPACES TOTgL OOUNTY PARKING SPACES - 2~3 SPACES • ` i~ ~~ D1.02 PARKING DECK -GROUND LEVEL - 80 SPACES wwsu • T1 _ A ' a a' .~...'.,.,.....7~.. 4 - • ~ sr ~c[a 9 .•. - •... ~ .. : a ~ f YIN . ~ a ~~ sr + ~co ~l ~ 1 i ,. ~ ~ ~ ~ d' ..; ... . f 1 ' `~- ~ ~ 1 ~ 1 1 1 MA 7 6 > l 1 ... , , ~ .. ~. ~ .... ~ _ l ~ ,a. .. '4"' I ~• .. ® ~]G9® ®®~ Om~® ~1 ' !~ 1:; ® ~ * ~ifl lift tl]! ~ ~ ® /~ ®; ® 0 ~N '~' ao avk m ©- - "' • J I 1 i e ~ asr -0 e ~3 M DpNp p ~N cZi °m I m N .~ ~^^ t^ s v _~ ` _ I / ,i ^ ~Al N ~~~ _ ~'~ A -~ 0 _ ~• C 4: ~ ~ ~_ i - r i ~n ~ eu ' ¢~O 'tea ~x~ ai O 1 r~ r W U N f D A{ M Z 1 7I1 D X rnX~ S W N I U Ip O N F ~f1QF11 ASCCIA76 INC. I w ~rn e p ~•~~ ~ tiw~A.fO a 3U~ peM_'_m GATEWAY CENTER ~ 228 SOUTH CHUR70N STREET f f CROROlJGH. NORTH CAROLINA • GATEWAY CENTER PARKING EX11181T 8 (2-25-2009) D3.07 ' • PARKING DECK - LEVEL 4 - 19 SPACES .u»~w • u. _..., , , --- r _ M y ~~~ ~ ~ _ ST3AR DETAIL ~ ~ • • D3.04 ' STAID DETAIL D3.05 D3.03 ' MTq IR DETAIL w7e lR OETAIL t ... 1 i ~ ' .. ~ _, ' e ' ma A DO ~ C aa /p • •~ ' 97 M4 p . .. ~ ~ .'s . e ' a~u ~ s 1 7 yyy 1 ~~Y.~/ ~(~- ATTACHMENT4 Parking Deck Lease Worksheet Managing Operator. labor only Mctaurin Parking Co. Hrslwk Wageslhr overhead cosUhr ~s1/wk t~sllyr cosUmon Personnel 40 $ 12.50 $ 1.24 S 13.74 $ 550 $ 28,579 S 2,382 Total Spaces within the deck 409 Section 1: Orange County t Eno River Parking Deck, LLC Shared Operatin Costs: 7 month perrod Actual Costs First Year Projections For Long Tenm Lease Personnel payroll 11,632 19,940.57 Supplies ~ deanirrg 7DD.oo 1,2DO.oo General Liability Ins.& Properly Coverage - Ltability 665.00 655.00 Structure 3,125.00 6,250.00 Misc. 1,309.D0 2,244A0 System Maintenance 1,050.00 1,800.00 Golf Cart Malntenancre 0.00 - Util'rfies F~ectric 8,060.00 10,422.86 Telephone 1,732.00 2,869.14 Water 374.00 841.14 Power washing 0.00 - Structural malnterrance 0.00 - Powersweeping $250 per quarter 250.00 428.57 Pavement marking $4,500 every 3 yrs. 0.00 - Lighting fixture maintenance 0.00 - t_mergency alarm malnt and monitoring D.00 first year free - t3adc ibw preventive maint and Inspection 0.00 - Management fee 7,000.00 12,000.00 Total: 33,907.00 58,551.29 1.1 Total Shared Operating Cost per apace per Year - 5 143.15 1.2 Orange County's TofaE First Year Shared Cost for 200 Spaces: 5 28,831.44 1.3 Eno River Parking Deck, LLCs Tatai First Year Shared Cost for 209 Spaces: $ 29,979.85 __ Section 2: Eno River Parking Deck, LLC Non hared Operatin Costs 7 morrth period Actual Costs First Year Projectors Couniy Taxes $43,290.00 $ 43,290.00 Supplies tidcets/receipts. $ 700.00 1,200.00 Other Ins. Robbery,fidelity,equipmenl $ 812.00 1,392.00 MonthyAudit $ 1,400.00 2,400.00 Credft Card fees $ 185.52 318.03 Total; $ 46,38TS2 48,600.03 2.1 Eno River Parking Deck, LLC's Total Projected First Year Non-Shared Cost: 5 48,600.03 Section 3: Eno River Parking Deck, LLC Shared and Non-Shared O Costs First Year Projections 3.1 Eno River Parking Deck, LLC's Total Projected First Year Shared Cost far 208 Spaces: ; 29,919.85 3.2 Eno River Parking Deck, LLC's Totai Pro acted Rrst Year Non-Shared Cost: S 48,600.03 3.3 Eno River Parking Deck, LLCs Total Project First Year Cost: $ 78,519.88 PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL G ~b THIS PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL ("Lease") is made and entered- into effective as of February 25, 2009 by and between ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Suite 109, Hillsborough, NC 27278 ("Lessor"), and ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate and a political subdivision of the State of North Carolina, P.O. Box 8181, Hillsborough, NC 27278 ("Lessee"). WITNESSETH: WHEREAS, Lessor owns and operates a private parking deck located on the north side of N&K Street and west of South Churton Street in Hillsborough, Orange County, North Carolina, containing four hundred nine (409) parking spaces (the "Parking Deck"); and WHEREAS, Lessee leases, owns and/or has contracted to purchase certain public use facilities adjoining or in close proximity to the Parking Deck, each of which requires parking for Lessee's employees, customers, guests and invitees; and WHEREAS, Lessor has agreed to lease to Lessee, and Lessee has agreed to lease from Lessor, certain parking spaces in the Parking Deck subject to and in accordance with the terms, covenants and conditions set forth in this Lease; and WHEREAS, Lessor has agreed to convey to Lessee, and Lessee has agreed to accept from Lessor, a right of first offer and right of first refusal to purchase the Parking Deck and the Property on which the Parking Deck is located, which Property is described particularly on the attached EXHIBIT A which is incorporated herein by this reference. NOW, THEREFORE, for and in consideration of the premises, the mutual covenants set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: Section 1 Lease. Subject to the terms, covenants and conditions set forth in this Lease, Lessor hereby leases unto Lessee for the benefit of Lessee and Lessee's employees, customer, guests and invitees, and Lessee hereby leases from Lessor, two hundred (200) designated parking spaces in the Parking Deck as identified on the attached EXHIBIT B which is incorporated herein by this reference (the "Parking Spaces"); provided, however, that the number of Parking Spaces may be increased or decreased from time to time during the Term as provided in this Lease.. Notwithstanding the foregoing, (a) Lessor reserves the right, with the prior written consent of Lessee, to relocate some or all of the Parking Spaces to other locations in the Parking Deck from time to time during the Term; and (b) Lessee and Lessor-agree to cooperate in a reasonable manner to effect the temporary release of some or all of the Parking Spaces to Lessor from time to time, at a cost to Lessor or a reduction in Annual Rent and Shared Operating-Costs as agreed by Lessee and Lessor in writing and in advance, when the use of such Parking Spaces is not required by Lessee. Section 2 Term. The initial term of this Lease shall commence (a) on February 25, 2009 with respect to one hundred twenty (120) Parking Spaces located on the third and fourth levels of the Parking Deck as identified on the attached EXHIBIT B, and (b) on the date of the closing ("Closing") of the sale by Telesis Construction Management, LLC to Lessee, and the purchase by Lessee from Telesis Construction Management, LLC, of the Public Library and Office Building presently under construction north of-the Parking Deck with respect to eighty (80) Parking Spaces located on the ground level of the Parking Deck as identified on the attached EXHIBIT B. The initial term of this Lease shall expire with respect to all Parking Spaces, if not sooner terminated as provided herein, at 11:59:59 p.m. (local time) on December 31, 2049. Commencing on January 1, 2050, the initial term of this Lease shall automatically renew for successive periods of one (1) calendar each (commencing on January 1 of each calendar year and ending on December 31 of the same calendar year at 11:59:59 p.m. (local time)), unless and .until sooner terminated by either party as provided below. When and as used in this Lease, "Term" shall mean the initial term of this Lease and each renewal term. At any time subsequent to the expiration of the initial term of this Lease, either party may terminate this Lease with respect to any or all of the Parking Spaces, in its sole discretion, upon delivering written notice of termination to the other party not less than one hundred eighty (180) days prior to the date of termination. Lessor may at any time terminate this Lease with respect to any or all of the Parking Spaces, for cause, in the event Lessee shall (a) default in the performance of any of its obligations pursuant to this Lease and (b) fail to cure such default within thirty (30) days after Lessor shall have delivered to Lessee written notice of default and demand for cure. Lessee may at any time terminate this Lease with respect to any or all of the Parking Spaces, for cause, in the event Lessor shall (a) default in the performance of any of its obligations pursuant to this Lease and (b) fail to cure such default within thirty (30) days after Lessee shall have delivered to Lessor written notice of default and demand for cure. Section 3 Annual Rent, Maintenance Costs and Operating Costs. (a) Annual Rent. Lessee shall pay to Lessor each calendar year during the Term, in advance, Annual Rent for Lessee's lease of the Parking Spaces in the amount of One Dollar ($1.00) multiplied by the number of Parking Spaces then leased to Lessee pursuant to the terms of this Lease. Annual Rent in the amount of One Hundred Twenty and No1100 Dollars ($120.00) for one hundred twenty (120) parking spaces for calendar year 2009, pro-rated as of February 25, 2009 ($101.92), shall be due and payable, in full, on February 25, 2009. Annual Rent in the amount of Eighty and No/100 Dollars ($80.00) for eighty (80) parking spaces for calendar year 2009, pro-rated as of the date of Closing, shall be due and payable, in full, on the date of Closing. Annual Rent for two hundred (200) Parking Spaces for calendar year 2010 in the amount of Two Hundred and No/100 Dollars ($200.00) shall be due and payable, in full, on January 10, 2010. Annual Rent for each subsequent calendar year during the Term shall be due and payable, in full, on the tenth (10`h) day of January of each such calendar year. Lessee's failure to pay any Annual Rent by the twentieth (20th') day of the month when due shall constitute a default under this Lease. In the event the termination date of this Lease with respect to any or all of the Parking Spaces shall not be December 31 of any calendar year, the Annual Rent for the calendar year in which this Lease terminates with respect to such Parking Spaces shall be pro-rated as of the date of such termination. (b) Shared Operating Costs -Calendar Year 2009. In addition to Annual Rent pursuant to paragraph 3(a) above, Lessee shall pay to Lessor for the 2009 calendar year the sum of Fourteen Thousand Five Hundred Ninety and 55/1.00 Dollars ($14,590.55) for one hundred twenty (120) parking spaces for the period commencing on February 25, 2009 and ending on December 31, 2009. Such sum shall be paid in full by Lessee not later than April 10, 2009. In addition to Annual Rent pursuant to paragraph 3(a) above, Lessee shall also pay to Lessor for the 2009 calendar year the sum of Eleven Thousand Four Hundred Fifty-Two and 80/100 Dollars ($11,452.80), pro-rated as of the date of Closing, for the remaining eighty (80) parking spaces for the period commencing on the date of Closing and ending on December 31, 2009. Such sum shall be paid by Lessee on the date of Closing. The parties acknowledge and agree that the above-stated sums represent the estimate of Lessee's pro-rata share of Shared Operating Costs (as hereinafter defined) for the 2009 calendar year. -2- (c) Shared Operating Costs -Remainder of Term. Commencing on January 1, 2010, Lessee shall pay to Lessor each calendar year during the Term, in addition to the Annual Rent required to be paid by Lessee to Lessor pursuant to paragraph 3(a) above, a sum equal to Lessee's pro-rata share of Shared Operating Costs incurred by Lessor during the preceding calendar year multiplied by the number of Parking Spaces leased to Lessee pursuant to this Lease during such preceding calendar year. On or before March 31 of each calendar year during the Term commencing in calendar year 2010, Lessor shall deliver to Lessee a written statement of Lessee's pro-rata share of Shared Operating Costs for the preceding calendar year. Lessee shall pay such pro-rated share of Shared Operating Costs to Lessor on or before July 10 of each calendar year during the Term. Lessee's pro-rata share of Shared Operating Costs for each calendar year during the Term shall be determined by multiplying the Shared Operating Costs for the preceding calendar year by a fraction, the numerator of which shall be the number of Parking Spaces leased to Lessee pursuant to the terms of this .Lease during such preceding calendar year, and the denominator of which shall be four hundred nine (409), the total number of parking spaces in the Parking Deck. When and as used in this Lease, the term "Shared Operating Costs" shall mean the total amount of all "Shared Operating Costs" expense items listed on the. attached EXHIBIT C incurred by Lessor in a particular calendar year; provided, however, that the management fee for calendar years 2009 and 2010 shall not exceed Twelve Thousand and No/100 Dollars ($12,000.00) and the management fee shall not thereafter be increased or decreased by more than one and one half percent (1'/z%) per calendar year unless a different increase or decrease is agreed upon, in writing, by Lessor and Lessee. Section 4 Right of First Offer to Purchase and Right of-First Refusal. Subject to the terms of this Lease, Lessor expressly reserves the right to sell the Property at anytime during the Term, including any extension thereof. However, Lessor covenants that it will not list nor offer the Property for sale without first giving Lessee written notice, in the manner prescribed in paragraph 6(d) of this Lease for Notices, of its desire to sell the Property and having allowed Lessee forty-five days from and after the date of such notice in which to attempt to secure a binding written agreement with Lessor for the purchase of the Property by Lessee. Lessor agrees that any and all offers to purchase submitted by Lessee during said forty-five day period will be held in strictest confidence, will be given every reasonable consideration in good faith, and if unacceptable, will remain confidential and will not be used at any time to enhance its efforts to otherwise market said Property. Lessor further grants to Lessee during the Term, including any extension thereof, the exclusive right at Lessee's option to purchase the Property on the same terms and at the same price as any bona fide offer for the Property received by Lessor that Lessor. desires to accept. Upon receipt of any such bona fide offer, and each time any such bona fide offer is received, Lessor shall immediately notify Lessee, in the manner prescribed in paragraph 6(d) of this Lease for Notices, of the full details of such offer, including a copy of the same (the name and address of the offeror may be omitted if Lessee is unwilling or unable to maintain the name and address of the offeror's confidentiality), whereupon Lessee shall have thirty (30) days after receipt of such notice in which to elect to exercise this right of first refusal. No sale of or transfer of title to the Property shall be binding on Lessee unless and until these requirements are fully complied with. The right of first refusal herein granted shall be continuing and pre-emptive, binding on the Lessor's successors or assigns, and the failure of Lessee to exercise same in any one case shall not affect Lessee's right to exercise such right of first refusal in other cases thereafter arising during the Term or any extension of the Term. Upon Lessor and Lessee reaching a binding written agreement for the purchase and sale of the Property, or upon Lessor's receipt of Lessee's notice of election to exercise any right of first refusal granted herein, Lessee shall have a reasonable time in which to examine title to the Property, but in no event more than thirty (30) days, and, upon completion of such examination, if the title is found to -3- be satisfactory, Lessee shall tender the purchase price to Lessor and Lessor shall thereupon deliver to Lessee a good and sufficient Special Warranty Deed conveying the Property to the Lessee free and clear of all encumbrances. All Annual Rent and Shared Operating Costs shall be pro-rated between grantor (Lessor) and grantee (Lessee) as of the date of the closing of the purchase and sale of the Property. Current year's ad valorem property taxes on the Property shall be paid or prepaid by grantor (Lessor) with grantee's (Lessee's) pro-rated share of those taxes added to the agreed purchase price. Lessee's notice of election to purchase pursuant to the right of first refusal granted herein shall be sufficient if deposited in the United States mail, postage prepaid, addressed to Lessor at Lessor's address contained in paragraph 6(d) of this Lease concerning Notices, at or before midnight of the day on which the right of first refusal expires. Section 5 Representations and Warranties of Lessor. Lessor represents and warrants to Lessee (each of which representations and warranties shall be true as of the date Lessor executes this Lease and as of the commencement of the initial term of this Lease) as follows: 5.01- Lessor is a limited liability company duly organized, validly existing and in good standing in accordance with the laws of the State of North Carolina. Lessor has full right, power and authority to enter into this Lease and to consummate the Lease contemplated herein; all required action necessary to authorize Lessor to enter into this Lease and to consummate the Lease contemplated herein has been taken, and the joinder of no person or entity other than Lessor will be necessary to convey the Property fully and completely to Lessee as provided herein. 5.02 No person has been granted any license, lease or other right relating to the use or possession of any of the Parking Spaces herein leased to Lessee except to the extent otherwise expressly provided in this Lease. No person has been granted an option to purchase, a right of first offer or a right of first refusal as to the Property except Lessee as expressly provided in this Lease. 5.03 To the best of Lessor's knowledge, there is no action, suit or proceeding pending or threatened against or affecting the Property or any part thereof, or relating to or arising out of Lessor's ownership of the Property or any part thereof, or by any federal, state, county or municipal department, commission ,board, bureau or agency or other governmental instrumentality, nor is there any attachment, execution, assignment for the benefit of creditors or voluntary or involuntary proceeding in bankruptcy or under other debtor relief laws contemplated by or pending or threatened against Lessor or the Property. 5.04 There exists no contract, service agreement or obligation affecting the Property which is in addition to or different from those which have been furnished or otherwise disclosed to Lessee. 5.05 Lessor has no knowledge of any release, discharge or storage of any Hazardous Material on or upon the Property or any part thereof in violation of any Environmental Laws. Lessor will not permit, suffer or allow any such Hazardous Material to be released, discharged or stored upon the Property or any part thereof in violation of any Environmental Laws- at any time during the Term or prior to a closing of the purchase and sale of the Property in the event Lessee exercises the right of first offer or right of first refusal provided for herein. For purposes of this Lease, Hazardous Materials means and includes petroleum, petroleum byproducts, (including, but not limited to,) crude oil, diesel oil, fuel oil, gasoline, lubrication oil, oil refuse, oil mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless of specific gravity, natural or synthetic gas products, asbestos, PCB, and/or any hazardous substance or - 4 - material, waste, pollutant or contaminant, defined as such in (or for the purposes of) any Environmental Laws. For purposes. of this Lease, Environmental Laws means the Comprehensive Environmental Response, Compensation and Liability Act as amended, the Resource Conservation Recovery Act as amended, the Clean. Air Act, the Clean Water Act, any "Superfund" or "Superlien" law, the North Carolina Oil Pollution and Hazardous Substance Control Act of 1976, or any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning any petroleum, petroleum byproduct (including, but not limited to, crude oil, diesel oil, fuel oil, gasoline, lubrication oil, oil refuse, oil mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless of specific gravity), natural or synthetic gas, asbestos, PCB, products and/or hazardous substance or material, toxic or dangerous waste, substance or material, pollutant or contaminant, as may now or at any time hereafter be in effect. Section 6 Miscellaneous. (a) Access Control. Lessor reserves the right to install such systems, equipment and apparatus, from time to time, as it may deem reasonably necessary to control and regulate access to the .Parking Deck, including, without limitation, the issuance of electronic access cards or codes and/or identification cards. Lessee acknowledges that it shall be obligated to pay to Lessor the reasonable cost of any such access cards or codes and/or identification cards in addition to the Annual Rent and the pro-rata share of Operating Costs required to be paid by Lessee pursuant to this Lease. (b) Maintenance. At all times during the Term, Lessor shall be responsible for the maintenance, upkeep and repair of the Parking Deck and adjoining grounds. Lessee acknowledges that the temporary unavailability of any Parking Spaces which may at any time exist as a consequence of any necessary maintenance, repair or replacement of the Parking Deck, any means of access to the Parking Deck, or any water, sewer, electric or other public or private utility located in, on, upon or under the Parking Deck, shall not be deemed an unreasonable interference with the Lessee's lease of the Parking .Spaces, nor a default by Lessor under this Lease. In such event, the Annual Rent and the pro-rata share of Operating Costs payable by Lessee with respect to any such unavailable Parking Spaces shall abate during the period of such unavailability unless Lessor is able to provide Lessee with replacement parking spaces in the Parking Deck or in reasonably close proximity thereto. (c) Parking Spaces on N&K Street. Lessor and Lessee acknowledge and agree that the number of Parking Spaces has been determined, in part, on the expectation of both parties that Lessee will have, at all times during the Term, the exclusive use of nineteen (19) parking spaces adjacent to the Parking Deck on N&K Street, at no cost to Lessee, during normal Orange County business hours. Consequently, in the event Lessee shall not, for any reason, have and enjoy, at any time during the Term, and at no cost to Lessee, the exclusive use of nineteen (19) parking spaces adjacent to the Parking Deck on N&K Street during normal Orange County business hours (with the exception of any temporary unavailability of such parking spaces as a consequence of street or utility maintenance and/or repair), the number of Parking Spaces shall be increased by a number equal to the number of parking spaces that are not available to Lessee as provided above. Lessor covenants and agrees to promptly make application to the Town of Hillsborough and to prosecute. an application for the abandonment of so-much of the public right of way of N&K Street as will be necessary to insure Lessee's exclusive use of these nineteen (19) parking spaces. Lessee covenants and agrees to cooperate with Lessor, in such manner as may reasonably be requested by Lessor, with respect to any right of way abandonment application and process with the Town of Hillsborough. (d) Notices. All notices and statements required or permitted by this Lease to be given to the parties or to either of them shall be deemed sufficiently given and delivered when made in writing and personally delivered to the parties or delivered by next day courier service (i.e. FedEx, UPS, etc.), or -5- delivered by the United States Postal Service via certified mail, return receipt requested, postage prepaid and addressed to the appropriate party(ies) at the following address(es): If to Lessor: Eno River Parking Deck, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 Attention: George A. Horton, III If to Lessee: Orange County, North Carolina P.O. Box 8181 Hillsborough, NC 27278 Attention: Pam Jones, Director of Purchasing and Central Services Any such notice or statement delivered by personal delivery shall be deemed delivered and received as of the date of personal delivery. Any notice or statement delivered by next day courier service or United States certified mail as provided above shall be deemed delivered when. delivered to the next day courier service or deposited in the United States mail, and the delivery confirmation or return receipt therefrom, as applicable, shall be deemed prima facie evidence that such notice or statement was received on the date stated on such delivery confirmation or return receipt. (e) Remedies. In the event either party shall (i) default in the performance of any of its obligations pursuant to this Lease and (ii) fail to cure such default within thirty (30) days after the non- defaulting party shall have delivered to the defaulting party written notice of default and demand for cure, the non-defaulting party shall, in addition to any and all rights and remedies otherwise provided in this Lease, have any and all rights and remedies as may be available to it at law or in equity for breach of contract. (f) Waiver. No term, condition or covenant contained in this Lease shall be deemed waived by any act, omission or forbearance, or any series of same, by either Lessor orLessee. The only waivers that shall be effective under this Lease shall be those which are in writing and signed by the party to be charged. No prior notice of non-waiver need be given by a party who has previously forborne from exercising a right hereunder. (g) Condominium Unit Lease. Lessor, Lessee and Telesis Construction Management, LLC acknowledge and agree that this Lease replaces, in its entirety, paragraph 3.01(b) of that certain Lease Agreement made -and entered into by and between Telesis Construction Management, LLC and Lessee having an effective date of February 28, 2007 (the "Condominium Unit Lease"), and both Telesis Construction Management, LLC and Lessee are hereby released and discharged from their respective obligations pursuant to paragraph 3.01(b) of the Condominium Unit Lease. Telesis Construction Management, LLC and Lessee acknowledge that the Parking Area located on the west side of the Gateway Center building that is designated a Class N Limited Common Element in the Declaration of Gateway Center Condominium, which Declaration is recorded at Book 4458, Page 3, Orange County Registry, and identified as "Parking Area 1705 Sq. Ft. 0.039 Acres Class IV Limited Common Element Maximum Number of Spaces (Perpendicular) = 7" on the Gateway Center Condominium plat recorded at Plat Book 103, Page 70, Orange County Registry is not replaced, superceded or in any manner affected by this Lease. Telesis Construction Management, LLC joins in the execution of this Lease for the sole and exclusive purpose of acknowledging and consenting to the provisions of this paragraph 6(g). Telesis Construction Management, LLC shall not otherwise be bound or obligated, in any manner, by any provision of this Lease. (h) No Joint Venture. Nothing in this Lease shall constitute or be construed to constitute a joint venture between Lessor and Lessee. -6- (i) No Third Party Beneficiaries. Neither party intends to confer any rights under this Lease upon any third party. Standing to enforce this Lease shall rest exclusively in the parties hereto. (j) Headines. The section and paragraph headings in this Lease are inserted for convenience only and are in no way intended to interpret, define, or limit the scope of content of this .Lease or any provision hereof. (k) Surviving Clause. The provisions of this Lease relating to any payment or other obligation required to be made or otherwise performed by either party subsequent to any termination of this Lease shall survive any termination of this Lease by either party whether as a matter of right or in breach of this Lease, notwithstanding any other provision in this Lease to the contrary. (1) Governing Law and Jurisdiction. This Lease shall be governed by and construed, interpreted and enforced in accordance with the laws and decisions of the State of North Carolina. Any action or proceeding brought by any party to construe, interpret or enforce this Lease or any provision hereof shall be brought in the state or federal courts of North Carolina. Each of the parties to this Lease hereby submits and consents to the jurisdiction of such courts. (m) Successors and Assi rgns. This Lease shall be binding upon and inure to the benefit of Lessor and Lessee and their respective successors and assigns, if any. (n) Counterparts. This Lease may be executed and delivered, in several counterparts, and all such counterparts so delivered-and executed shall constitute but one and the same instrument. (o) Recordation. Upon the request of either party, the other party will in good faith cooperate in the preparation and execution of a recordable Memorandum of Lease. IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to be executed by its duly authorized representative(s) on the day and year indicated below. LESSOR: [SIGNATURES CONTINUE ON NEXT PAGE] -7- Eno River Parking Deck, LLC, a North Carolina limited liability company LESSEE: Orange County, North Carolina, a body politic and corporate and a political subdivision of the State of Carolina ,~ ~~~ Name: ~ Title:.. OC C_ ~o `o° `~b ~~z°` Date: "~j ~~ c/ (SIGNATURES CONTINUE. ON NEXT PAGE] -8- Telesis Construction Management, LLC, a North Carolina limited liability company BY' ~ ~ (SEAL) George A. H on, III, M b~r/Mana By: Jr., (SEAL) [SIGNATUREAPAGES QbNCLUDE] 12925\O]UVi\100Parking Deck License Agreement (02.20.09 WDB CL Draft #3) GEG RL 3609 -9- EXIFIIBIT A (Parking Deck ProAerly DescriAtion) Being all of Lot 3, containing 1.00 acre, more or less, as shown on that certain plat of survey recorded in Plat Book 103, Page 20, Orange County Registry, reference to which plat of survey is hereby made for a more particular description of Lot 3. -10- EXHIBIT B IDENTIFICATION OF PARHING SPACES One hundred twenty (120) parking spaces (nos.182, 292-386, 388-41 1, inclusive) located on the third and fourth levels of the Parking Deck as generally illustrated on sheets D-2 and D-3 of that certain drawing entitled "GATEWAY CENTER PARKING" (last updated 2/25/09) prepared by or on behalf of Brockwell Associates, Inc., a copy of which drawing is attached hereto and incorporated hereinby this reference. 2. Eighty (80) parking spaces (nos. 1 through 80, inclusive) located on the ground level of the Parking Deck as generally illustrated on sheet D-1 of that certain drawing entitled "GATEWAY CENTER PARKING" (last updated 2/25/09) prepared by or on behalf of Brockwell Associates, Inc., a copy of which drawing is attached hereto and incorporated herein by this reference. -11- ~ i ~ ~ is ~~ ~ o~ ~ a'~~g,s~;~$ -~ ~ I ~ g ~+ 9~~~ s - - i ~ ., ~~~ ~ ~ e~~~3s~:~ ~i~ s i;i i, ~ ~ 1 i ~ 9.,E ® € a __ ~~. ~~o~.~~~~ ~~~€ ~~ ..uw,py C1 lwss ~ i ~ ~~..,,,,. ~ o ~~„~ µ _._. ~.._ ,~ ~ I~ I i ~ ~ ~ o-~ _ _ - I I PROPOSED LIBRARY ( SEE SHEETS 0.1 D-2 AND ~ u I t/~ w BUILDING EXISTING ~ D-3 FOR DECK PARKING ® a, ~~ 23,454-2STORY FOUNDATION ! ® ~ I) g I ~ ~ ® ~~ $ ~ ~ o~EO ~ ,~.wE ~ , a q ~ ~ ~ ~ x lid - -------- o _._ ® W ~ LJ , i p ~ m - - I' I I ,J o ~ ~ ~ ~ ~~~ II ~' jw Z ~ I - Z. 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I+a I f°e~, ~e I3ro arz ,r<~(vbi~sr~ ~ I ~ I _~ j an 11 ~~ ~ ! ~ i I ~:' ~~~ r~, ,,, it ~ • i t ~~SS ~.15]~E,SS' y 9' b M3654 ' i ~..I i ~.I~.JJ k3ry IL'~~.~H S~~ ~ i ~ I Ir' Y ~~ -_-_ ~ ~~ 333 al',R'~~1 r~~`'_it~l3'~G•~19~31 '.II .~'.f~_"~~J09 ~~]rC5~~7C`~,(, (~S9~P9 /1~, ~'_'I~ ~1 ~'.. ~ tl 5~' CE 11 ~~ I \I 1 ~:~ ~ ~~'~ ~Flw~s~~<aaazd[~so~[ a~s ~~3za~~z~i~~ze~ ay..b~L ~~~ zy ,:_. ~,1P~-~' I d~ze_~ .~o~'~ ~ '~* ~ ~ I I ~ T ~ I ~: I ~ ~ ,_~ L ,.. ~. _. ~.__. i __ . _ 1 ~ .~.___._ ~ L-- Q ~ (li ~-- z w J W wO I;) ~ 1 ~ ~~ I-- I- Q PAk~c V„ .:;i C ~ - Lf VET ~ - 10~ Pn('.~c ~ ~U W Z= UF_ ~~ ~O =Z ~ ~=2:?U 'vt AiiGARFT I..~Nf_ Q US i _ .1 ~ ~(' T. ~_- L.I W 7 O i ~~ ~~ I ~ i T ~ I ~ r ~~~ i W w~t~xl~ _ III I ~ i I ~ I l~ {. , ~~~liY N R !I d L 1, , < i I - m _ __ ~r i , 4_ ~.. ~ ~~~~ ~ m ~i/b/ «~ -~ J ~.i/ 6/2 S9 ~^ S U _77 i}i#ati#It A ~' ~' -1 __ _ _ j- -1nf--__ - ~t - y ] _9ij~.9B ~yS91`9f~iy5j,'i a 393397."~~ i ~. ~\~ ~_~ may. ~ bg ~a ~; ~=9~ ~', BR CO K1vE:~ ASSOC ATES. INC. (~ /~ ~ 1hl /~ ~/ _-,~- 8 4 ~J /~ V ~ Y1 I/'~. 'n\ ~ I ~ ' ~ i ~~98$ Alti)tliFGf5 ~P1.~Nf~S T` VL V ~.,~ ~i. ~ ~ / R~ e~ 3~as ~ i; q^~,'~ ~ ,,, 228 SOUrH CHUR ON S ROUT ~~ ~,_ a ~ ?+ 9~:4~ ~ " ""~ HILLSBOROUGH, NORTH CAROLINA I~ ~ `~_~/ - ~ ~__ EXHIBIT C Eno River Parking Deck, LLC 106 Nash & Kollock Street Managing Operator: labor only McLaudn Parking Co. Hrs/wk Wages/hr overhead cosUhr cosUwk cosUyr cost/mon Personnel 40 $ 12.50 $ 1.24 $ 13.74 $ 550 $ 28,579 $ 2,382 Total Spaces within the deck: 409 Orange County / Eno River Parking Deck, LLC Shared O eratin Costs: 7 month period Actual Costs First Year Projections For Long Term Lease Personnel payroll 11,632 19,940.57 Supplies /cleaning 700.00 1,200.00 General Liability Ins.& Property Coverage _ Liability 655.00 655.00 Structure 3,125.00 6,250.00 Misc. 1,309.00 2,244.00 System Maintenance 1,050.00 1,800.00 Golf Cart Maintenance 0.00 _ Utilities Electric 6,080.00 10,422.86 Telephone 1,732.00 2,969.14 Water 374.00 641.14 Power washing 0.00 _ Structural maintenance 0.00 _ Power sweeping $250 per quarter 250.00 428.57 Pavement marking $4,500 every 3 yrs. 0.00 _ Lighting fixture maintenance 0.00 _ Emergency alarm maint. and monitoring 0.00 first year free - Back flow preventive maint. and inspection 0.00 _ Mana ement fee 7,000.00 12,000.00 Total: 33,907.00 58,551.29 Total Shared Operating Cost per Space per Year $ 143.16 Orange County's Total First Year Shared Cost for 200 Spaces: $ 28,631.44 Eno River Parking Deck, LLC's Total First Year Shared Cost for 209 Spaces: $ 29,919.85 Eno River Parking Deck, LLC Non-Shared O eratin Costs 7 month period Actual Costs First Year Projections County Taxes $ 43,290.00 $ 43,290.00 Supplies tickets/receipts. $ 700.00 1,200.00 Other Ins. Robbery,fidelity,equipment $ 812.00 1,392.00 Monthly Audit $ 1,400.00 2,400.00 Credit card fees $ 185.52 318.03 Total: S 46,387.52 48,600.03 Eno River Parking Deck, LLC's Total Projected First Year Non-Shared Cost: $ 48,600.03 Eno River Parking Deck, LLC Shared and Non-Shared O eratin Costs First Year Projections Eno River Parking Deck, LLC's Total Projected First Year Shared Cost for 209 Spaces: $ 29,919.85 Eno River Parking Deck, LLC's Total Projected First Year Non-Shared Cost: $ 48,600.03 Eno River Parking Deck, LLC's Total Project First Year Cost: $ 78,519.88 y- ~-a s ~.~ ORANGE COUNTY NORTH CAROLINA AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (LIBRARY BUILDING) THIS AGREEMENT OF PURCHASE AND SALE (LIBRARY BUILDING) "A reement" is made effective this day of 2009 (the ( g ) "Execution Date"), by and between TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company ("Seller"), and ORANGE COUNTY, NORTH CAROLINA, a body corporate and politic and a political subdivision of the State of North Carolina ("Purchaser") WITNESSETH: WHEREAS, Seller and Purchaser entered into an Agreement of Purchase and Sale (Library Building) made effective February 1, 2008 (the "Agreement"), which Agreement provides for the sale and purchase of a public library to be constructed and located in Hillsborough, North Carolina; and WHEREAS, the parties have previously agreed to amend the Agreement and agree the Agreement needs further amendment all as described herein. NOW, THEREFORE, in consideration of good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Incorporation of Preamble and Recitals. The preamble .and recitals to this Amendment are hereby incorporated herein by reference and made a part of this Amendment. 2. Definitions. All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Agreement. All references in the Agreement to "this Agreement" shall be deemed to be the Agreement as amended by .this Amendment unless the context requires otherwise. 3. Paragraph 2.01 of the Agreement is deleted in its entirety and replaced with the following: 2.01 The purchase price (the "Purchase Price") for the Property shall be Six Million Four Hundred Ninety-Three Thousand Five Hundred Sixty-Seven and No/100 Dollars ($6,493,567.00) as shown on the attached EXHIBIT B less a credit in the amount set .forth in Section 2.03 below, and as may be further adjusted as provided in this Section and in SECTION 3, payable in immediately available funds to Seller at Closing. 4. Paragraph 2.02 of the Agreement is deleted in its entirety and replaced with the following: 2.02 The Purchase Price shall be increased by such amount(s) as may be necessary to compensate Seller for (a) any Building construction costs and/or expenses not included in the Guaranteed Maximum Price (as hereinafter defined) that are compensable pursuant to the Agreement For Construction Manager at Risk Services, as amended ("the Construction Agreement"), by and between Seller and Purchaser, and (b) any Building construction costs and/or expenses not included in the Building Construction Budget that are incurred by Seller by reason of a change order or change order directive issued by Purchaser. The Purchase Price purchases the Property and includes (1) the construction of the shell of the Building, (2) the exterior improvements to the Real Property and (3) the. Interior Upfit Allowance, which, among other things, make up the "Guaranteed Maximum Price." 2 5. Paragraph 2.03 of the Agreement is deleted in its entirety and replaced with the following: 2.03 The Purchase Price shall be credited by One Hundred Twenty-three Thousand Nine Hundred Ninety-Seven and No/100 Dollars ($123,997.00), the cost of all design professionals whose contract(s) are assigned to Purchaser pursuant to N.C. Gen. Stat. Section 143-64.31 less any amount of such budgeted cost Seller has paid such design professionals as shown on the attached EXHIBIT C. 6. Paragraph 5.04 of the Agreement is deleted in its entirety and replaced with the following: 5.04 As a further condition precedent to Purchaser's obligation to close the purchase of the Property, Seller and Purchaser shall have made and entered into a written lease agreement pursuant to which Seller shall lease to Purchaser, upon terms and conditions mutually satisfactory to Seller and Purchaser, the exclusive use of the Allocated Parking Spaces. As used herein, "Allocated Parking Spaces" shall mean two hundred (200) parking spaces in the parking deck constructed by Seller on a tract of land lying south of the Property and north of N & K Street which shall be allocated for the exclusive use of the owner of the Building and such owner's tenants, employees, customers, guests, licensees and invitees. Allocated Parking Spaces was determined by subtracting from two hundred forty-three (243) the number of parking spaces which shall have been licensed by Seller to Purchaser or otherwise made available or reserved for the exclusive use of Purchaser within .the project complex (including .the Real Property, the parking deck, the proposed Orange County office building tract and the Gateway Center Building tract). Seller. and Purchase acknowledge that it is their intent that a total of two 3 hundred forty-three (243) parking spaces shall be allocated to Purchaser within the project complex for Purchaser's use of the Building, Units 200 and 300 in the Gateway Center Building and the proposed Orange County office building. Only to the extent that such parking spaces could not be accommodated within the project complex and outside the parking deck were parking spaces allocated to Purchaser within the parking deck. 7. The prefatory clause to Section 9 of the Agreement is deleted in its entirety and replaced with the following: Seller represents and warrants to Buyer (each of which representations and warranties shall be true as of the Date of Agreement and as of the Closing) as follows: 8. Continued Force and Effect. The Parties confirm the Agreement as amended by the Amendment and acknowledge and agree that, as amended by this Amendment, the Agreement is binding and is and remains in full force and effect. 9. Counterparts. This Amendment may be executed in any number of counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all Parties have not signed the same counterpart. Any signature delivered by a party by facsimile transmission or by sending a scanned copy of the executed Amendment by electronic mail shall be deemed, and shall have the same force and effect as, an original signature hereto. [Signature Page to Follow) 4 IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreement to be executed by its duly authorized representative(s) as of the day and year indicated below. SELLER: Telesis Construction Management, LLC, a North Carolina limited liability company By: Ld George A. Orton, Member/ a By: D PURCHASER: (SEAL) er/Manager Orange County, North Carolinas a bQdyvpQli and corporate and a political sy~ ' ~ of ~ State of North Carolina ,~ ~ '~; , B y. -- v u,[~~ W Name: Title: ,~ , ~ Date: F:\Lisa\o~angecounty\ Library Purchase Agreement Amendment fiual.doc 5 Exhibit B: Purchase and Sale Amendment Reconciliation: Library para 2.01 Library Original Contract Purchase Price 6,662,957 Sustainable 4 Pipe HVAC System' 164,861 Generator, Structural Steel, and Site Revisions2 253,942 Contract Upfit Allowance Adjustment' (588,193) Amended Purchase Price 6,493,567 Footnotes 1 -This represents the sustainable designs approved by the BOCC on 11/6/08 2 -These costs are approved alternates and changes to those alternates that arrived after bid. The changes are the result of 1)post-design structural steel reinforcement for roof mounting of the generators instead of generator placement in the alleyway between the two buildings, a change needed to accommodate service vehicles in the alleyway; 2) the availability of more efficient HVAC controls for more efficient and sustainable operation of the library; and 3) mathematical reconciliation between the conventional design and the sustainable design costs. These additional costs are reasonable for the work to be performed. 3 -Adjustments made due to the actual bid cost of the building upfits related to the contractual allowances described in paragraph 2.02 of the original Purchase and Sale Agreement. Exhibit C: Design Cost Credit due to County: Orange County Library pars 2.U3 sneering Contract Amounts Brockweil ~ Associates Architecture Library Development Plan 4,200 Architecture 91,471 Structural Engineer _ ~ _ 17,500 EDi Engineering Plumbing, Mechanical and Electrical Engineering 35,400 Construction Administration Fee Adjustment 5,772 Total of Contract Amounts Less Contract Fees Paid by Telesis-0riginal' (27,460) - Construction Admin2 (2,886) Credit Sum due Orange County 123,997 1 -The basic services fees for design of the Office Building. and Library were included in the original Purchase and Saie Agreement with Telesis Construction Management Since these fees are now the County's responsibility, the fees are being credited in th~ Agreement to the County. The original fees of $397,806 were approved by the BOCC on 12/11/07. This net figure represents the true credit since Telesis had previously paid $74,215 of this $397,806. The number footnoted is the library share of the amount paid by Telesis. 2 -The professional design fees that were originally represented in the Purchase and Sale Agreement did not include design and engineering construction administration fees. This amount represents. a credit to the County for fifty percent of the total of $15,600 of additional fees. Telesis Construction Management has agreed to pay the other half. The number footnoted is the library share of the amount paid by Telesis. y- 7'-100 ~ G,F ORANGE COUNTY NORTH CAROLINA AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (OFFICE~BUILDING) THIS AGREEMENT OF PURCHASE AND SALE (OFFICE BUILDING) '~ pp ("Agreement") is made effective this ..~ day of ~,dOn./~ 2009 (the "Execution Date"), by and between TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company ("Seller"), and ORANGE COUNTY, NORTH CAROLINA, a body corporate and politic and a political subdivision of the State of North Carolina ("Purchaser"). WITNES SETH: WHEREAS, Seller and Purchaser entered into an Agreement of Purchase and Sale (Office Building) made effective February 1, 2008 (the "Agreement"), which Agreement provides for the sale and purchase of a public library to be constructed and located in Hillsborough, North Carolina; and WHEREAS, the parties have previously agreed to amend the Agreement and agree the Agreement needs further amendment all as described herein. NOW, THEREFORE, in consideration of good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Incorporation of Preamble and Recitals. The preamble and recitals to this Amendment are hereby incorporated herein by reference and made a part. of this Amendment. 2. Definitions. All. capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Agreement. All references in the Agreement to "this Agreement" shall be deemed to be the Agreement as amended by this Amendment unless the context requires otherwise. 3. Paragraph 2.01 of the Agreement is deleted in its entirety and replaced with the .following: 2.01 The purchase price (the "Purchase Price") for the Property shall be Twelve Million One Hundred Nine Thousand Sixty-Nine and No/100 Dollars ($12,109,069.00) as shown on the attached EXHIBIT B less a credit in the amount set forth in Section 2.03 below, and as may be further adjusted as provided in this Section and in SECTION 3, payable in immediately available funds to Seller at Closing. 4. Paragraph 2.02 of the Agreement is deleted in its entirety and replaced with the following: 2.02 The Purchase Price shall be increased by such amount(s) as may be necessary to compensate Seller for (a) any Building construction costs and/or expenses not included in the Guaranteed Maximum Price (as hereina$er defined) that are compensable pursuant to the Agreement For Construction Manager at Risk Services, as amended ("the Construction Agreement"), by and between Seller and Purchaser, and (b) any Building construction costs and/or expenses not included in the Building Construction Budget that are incurred by Seller by reason of a change order or change order directive issued by Purchaser. The Purchase Price purchases .the Property and includes (1) the construction of the shell of the Building, (2) the exterior improvements to the Real Property and (3) the Interior Upfit Allowance, which, among other things, make up the "Guaranteed Maximum Price." 2 5. Paragraph 2.03 of the- Agreement is deleted in its entirety and replaced with the following: 2.03 The Purchase Price shall be credited by Two Hundred Seven Thousand Three Hundred Ninety-Four and No/100 Dollars ($207,394.00), the cost of all design professionals whose contract(s) are assigned to Purchaser pursuant to N.C. Gen.- Stat. Section 143-64.31 less any amount of such budgeted cost Seller has paid such design professionals as shown on the attached EXHIBIT C. 6. Paragraph 5.04 of the Agreement is deleted in its entirety and replaced with the following: 5.04 As a further condition precedent to Purchaser's obligation to close the purchase. of the Property, Seller and Purchaser shall have made and entered into a written lease agreement pursuant to which Seller shall lease to Purchaser, upon terms and conditions mutually .satisfactory to Seller and Purchaser, the exclusive use of the Allocated Parking Spaces. As used herein, "Allocated Parking Spaces" shall mean two hundred (200) parking spaces in the parking deck constructed by Seller on a tract of land lying south of the Property and north of N & K Street which shall be allocated for the exclusive use of the owner of the Building and ,such owner's tenants, employees, customers, guests, licensees and invitees. Allocated Parking Spaces was determined by subtracting from two hundred forty-three (243) the number of parking spaces which shall have been licensed by Seller to Purchaser or otherwise made available or reserved for the exclusive use of Purchaser within the project complex (including the Real Property, the parking deck, the proposed Orange County library tract and the Gateway Center Building tract). Seller and Purchaser acknowledge that it is their intent that a total of two hundred 3 forty-three (243) parking spaces shall be allocated to Purchaser within the project complex for Purchaser's use of the Building, Units 200 and 300 in the Gateway Center Building and the proposed Orange County library. Only to the extent that such parking spaces could not be accommodated within the project complex and outside the parking deck were parking spaces allocated to Purchaser within the parking deck. 7. The preamble to Section 9 of the Agreement is deleted in its entirety and replaced with the following: Seller represents and warrants to Buyer (each of which representations and warranties shall be true as of the Date of Agreement and as of the Closing) as follows: 8. Continued Force and Effect. The Parties confirm the Agreement as amended by this Amendment and acknowledge and agree that, as amended by this Amendment, the Agreement is binding and is and remains in full force and effect. 9. Counterparts. This Amendment maybe executed in any number of counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all Parties have not signed the same counterpart. Any signature delivered by a party by facsimile transmission or by sending a scanned copy of the executed Amendment by electronic mail shall be deemed, and shall have the same force and effect as, an original signature hereto. [Signature Page to Follow) 4 IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreement to be executed by its duly authorized representative(s) as of the day and year indicated below. SELLER: Telesis Construction Management, LLC, a North Carolina limited liability company By:. ~tS~ ) AGeorge . Horto ,III, Member/Manager By: ~ ~ (SEAL) By: .. ~ Q-~ Name: ~ ~r~ f~arv~~'~ Title: ~~? ~ ~ ~3 0 CL Dater ~/~ Co~o2 d d ~ James ~rker, Member/Manager Dat : 1 Q PURCHASER: Orange County, North Carolina, a bod p1cQ,~¢~ and corporate and a political subdivi 'o ~' - State of North Carolina $ ~,, F:\Lisa\orangecounty\Office Building Purchase Agreement Amendment final.doc 5 Exhibit B: Purchase and Sale Amendment Reconciliation: Office. Bldg para 2.01 Original Contract Purchase Price Sustainable 4 Pipe HVAC System' Office Bldg 11,276,122 280,708 Generator, Structural Steel, and Site Revisions2 432,388 Contract Upfit Allowance Adjustment3 119,851 Amended Purchase Price 12,109,069 Footnotes 1 -This represents the sustainable designs approved by the BOCC on 11/6/08 2 -These costs are approved alternates and changes to those alternates that arrived after bid. The changes are the result of 1)post-design structural steel reinforcement for roof mounting of the generators instead of generator placement in the alleyway between the two buildings, a change needed to accommodate service vehicles in the alleyway; 2) the availability of more efficient HVAC controls for more efficient and sustainable operation of the office building; and 3) mathematical reconciliation between the conventional design and the sustainable design costs. These additional costs are reasonable for the work to be performed. 3 -Adjustments made due to the actual bid cost of the building upfits related to the contractual allowances described in paragraph 2.02 of the original Purchase and Sale Agreement. F~chibit C: Design Cost Credit due to County: Orange County Office Bldg pars 2.03 Brockwetl & Associates Architecture Development Plan Architecture Structural Engineer EDi Engineering Plumbing, Mechanical and Electrical Engineering Construction Administration Fee Adjustment Total of Contract Amounts Less Contract Fees Paid by Telesis-Original' - Construdian Admin2 Credit Sum due Orange Goun~y by Orange County Office Bldg 4,200 142,435 35,000 67,600 9,828 259,063 (46,755) (4,914) 207,394 1 -The basic services fees for design of the Office Building and Library wen=. included in the original Purchase and Sale Agreement with Telesis Constnx~ion Management. Since these fees are now the County's. tespansibility, the fees are being credited in.this Agreement to the County. The original fees of $397,806 were approved by-the BOCC on 12/11/O7. This net figure represents the true cxedit.since Telesis had previously paid $74,215 of this $397,806. The number footnoted is the office building share of the amount paid by Telesis. 2 -The professional design fees thgt were originally represented in the Purchase and Sate Agreement did not include design and engineering construction administration :. fees. This amount representsa credit to the County for frfty percent of the total of $15,600 of additional fees. Telesis Construction Managemenrt has agreed to pay the other half. The number footnoted is the office building share of the amount paid by Telesis.