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HomeMy WebLinkAboutAgenda - 10-06-2009 - 4dORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: October 6, 2009 Action Agenda Item No. ~- - d SUBJECT: Amendment to the Eno River Parkin Deck Lease DEPARTMENT: AMPS PUBLIC HEARING: (Y/N) No ATTACHMENT(S): Second Amendment to Parking Deck Lease and Right of First Offer and Right of First Refusal Amendment to Memorandum of Lease INFORMATION CONTACT: Pam Jones, 919-245-2652 Geof Gledhill 919-732-2196 PURPOSE: To consider approval of an Amendment to the Eno River Parking Deck Lease and its corresponding "Memorandum of Lease" to include in the description of the leased property, existing easements providing vehicular and pedestrian access to the Parking Deck across the Gateway Center property, and comparable easements being created across the County Office Building property and the County Library property. BACKGROUND: The BOCC previously approved a long term lease agreement between Orange County and Eno River Parking Deck, LLC. The agreement provides the County with 200 parking spaces in the Eno River Parking Deck, together with a Right of First Offer and Right of First Refusal providing the County options to purchase the Parking Deck. It is necessary to amend the Agreement property description to include applicable easements providing access to and from the Parking Deck across the Gateway Center property and the Office Building and Library properties. The descriptions of the easements across the Gateway Center property are established by a recorded easement. The descriptions of the easements across the Office Building and Library properties will be finalized as part of the closing of the County's purchase of those properties. The attached Amendment to the Eno River Parking Deck Lease Agreement achieves this description reconciliation and does not change the terms of the underlying lease. The Amended Memorandum of Lease, which will be recorded, will conform the public record of the Agreement to the Amended Agreement. FINANCIAL IMPACT: None RECOMMENDATION(S): The Interim Manager recommends the Board approve the Amendment to the Eno River Parking Deck Lease and the amendment to the Memorandum of Lease; and authorize the Chair to sign on behalf of the Board. STATE OF NORTH CAROLINA COUNTY OF ORANGE SECOND AMENDMENT TO PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL THIS SECOND AMENDMENT TO PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL ("Second Amendment") is made effective the day of , 2009 (the "Execution Date") by and between ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Suite 109, Hillsborough, North Carolina 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, North Carolina 27278 ("Lessee"). WITNESSETH: WHEREAS, Lessor and Lessee entered into a Parking Deck Lease and Right of First Offer and Right of First Refusal made effective February 25, 2009 (the "Lease"); and WHEREAS, Lessor and Lessee entered into an Amendment to Parking Deck Lease and Right of First Offer and Right of First Refusal made effective June 23, 2009 (the "First Amendment"); and 3 WHEREAS, the parties have agreed to further amend the Lease as described here. NOW, THEREFORE, and in consideration of the terms, covenants and conditions set forth in the Lease and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee hereby covenant and agree as follows: 1. Incorporation of Preamble and Recitals. The preamble and recitals to this Second Amendment are hereby incorporated by reference and made a part of this Second Amendment. 2. Definitions. All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Lease. All references in the Lease to "this Lease" shall be deemed to be the Lease as amended by this Second Amendment unless the context requires otherwise. 3. The description of the property which is the subject of the Lease is contained in Exhibit A to the Lease as amended by the First Amendment. Lessor and Lessee hereby further amend the description of the property which is the subject of the Lease by deleting any and all prior descriptions of the property which is the subject of the Lease (specifically including the original Exhibit A to the Lease and Exhibit A to the First Amendment) and replacing such property descriptions with the property description set forth in the attached EXHIBIT A which is incorporated herein by reference. 4. Continued Force and Effect. The parties confirm the Lease as amended by this Second Amendment and acknowledge and agree that, as amended by this Second Amendment, the Lease is binding and is and remains in full force and effect. 2 5. Counterparts. This Second Amendment may be executed and delivered in several counterparts, and all such counterparts so delivered and executed shall constitute but one and the same instrument. IN WITNESS WHEREOF, Lessor and Lessee have each caused this Second Amendment to be executed by its duly authorized representative(s) as of the day and year indicated below. LESSOR: ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company By: George A. Horton, III, Member/Manager (SEAL) By: (SEAL) James W. Parker, Jr., Member/Manager Date: LESSEE: ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate and a political subdivision of the State of North Carolina By: (SEAL) Name: Title: Date: 3 5 EXHIBIT A (ParkinE Deck Property Description) Being all of Lot 3, containing 1.004 acres, more or less, as shown on that certain plat of survey entitled "FINAL PLAT RECOMBINATION ORANGE COUNTY COMPLEX" recorded in Plat Book 105, Page 117, Orange County Registry, reference to which plat of survey is hereby made for a more particular description of Lot 3; Together with a perpetual, non-exclusive access easement over and across a portion of the Gateway Center Condominium common elements as identified and described in that certain Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as amended and/or modified from time to time (the "Declaration"), which access easement (a) is identified and described as "ACCESS EASEMENT NO. 3 (INCLUDING EXISTING ACCESS EASEMENT)" on the diagram entitled "ACCESS EASEMENT AND PARKING EASEMENT" as shown on that certain plat of survey recorded in Plat Book 102, Page 53, Orange County Registry, reference to which plat of survey is hereby made for more particular description of the access easement; (b) shall be for the sole and exclusive purpose of providing a means of motor vehicle ingress, egress and regress to and from the above-described Lot 3 and N&K Street, Hillsborough, NC and South Churton Street, Hillsborough, NC; (c) shall be appurtenant to and run with title to the above-described Lot 3; and (d) shall inure to the benefit of the owner of the above-described Lot 3 and each future record owner of the above-described Lot 3 and said owners' tenants, employees, customers, patrons, guests, invitees and licensees; Together with a perpetual, non-exclusive access easement over and across a portion of the Gateway Center Condominium common elements as identified and described in the Declaration, which access easement (a) shall be approximately 16.78 feet in width and shall begin at the north line of the common elements of the Gateway Center Condominium and the south line of the Orange Rural Fire Department, Inc. property and run thence south a distance of approximately 44.68 feet, being a part of that certain area identified and described as "TEMPORARY FIRE DEPARTMENT EASEMENT NO. 1" on the diagram entitled "TEMPORARY FIRE DEPARTMENT EASEMENT" as shown on that certain plat of survey recorded in Plat Book 102, Page 53, Orange County Registry, reference to which plat of survey is hereby made for a more particular description of such "TEMPORARY FIRE DEPARTMENT EASEMENT NO. 1;" (b) shall be for the sole and exclusive purpose of providing a means of motor vehicle ingress, egress and regress to and from the above-described Lot 3 and any tract or parcel of land located north of the Gateway Center Condominium and south of West Margaret Lane, Hillsborough, NC; (c) shall be appurtenant to and run with title to the above-described Lot 3; and (d) shall inure to the benefit of the owner of the above-described Lot 3 and each future record owner of the above-described Lot 3 and said owners' tenants, employees, customers, patrons, guests, invitees and licensees; Together with a perpetual, non-exclusive motor vehicle access easement (the "Parking Deck Motor Vehicle Access Easement")over, across and upon that part of the Office Building Tract (Lot 2, containing 0.588 acre, more or less, as shown on that certain plat of survey recorded in Plat Book 105, Page 117, Orange County Registry) consisting of 3,378 square feet, more or less, identified and described as shown on the diagram titled "NEW VEHICULAR ACCESS EASEMENT" on Sheet 2 of 3 of those certain plats of survey recorded in Plat Book 105, Pages 157, 158 and 159, Orange County Registry, reference to which plats of survey is hereby made for a more particular description of the area of the Parking Deck Motor Vehicle Access Easement, which access easement (a) shall be for the sole and exclusive purpose of providing a means of motor vehicle ingress, egress and regress to and from the above-described Lot 3 and West Margaret Lane, Hillsborough, NC; (b) shall be appurtenant to and run with title to the above-described Lot 3; and (c) shall inure to the benefit of the owner of the above-described Lot 3 and each future record owner of the above-described Lot 3 and said owners' tenants, employees, customers, patrons, guests, invitees and licensees; Together with perpetual non-exclusive pedestrian access easements (collectively the "Parking Deck Pedestrian Access Easement") over, across and upon (a) that part of the Library Tract (Lot 1, containing 0.498 acre, more or less, as shown on that certain plat of survey recorded in Plat Book 105, Page 117, Orange County Registry) consisting of 1,107 square feet, more or less, identified and described as "NEW PEDESTRIAN EASEMENT NO. 1," and (b) that part of the Office Building Tract consisting of 1,131 square feet, more or less, identified and described as "NEW PEDESTRIAN EASEMENT N0.2," as shown on the diagram titled "NEW PEDESTRIAN EASEMENTS" on Sheet 3 of 3 of those certain plats of survey recorded in Plat Book 105, Pages 157, 158 and 159, Orange County Registry, reference to which plats of survey is hereby made for more a particular description of the area of the Parking Deck Pedestrian Access Easement, which access easement (a) shall be for the sole and exclusive purpose of providing a means of pedestrian ingress, egress and regress to and from the above-described Lot 3 and (i) West Margaret Lane, Hillsborough, NC and/or any public area(s) adjacent thereto, and (ii) the facilities located on the Office Building Tract and/or the Library Tract, for the benefit of the owner of the above-described Lot 3 and each future record owner of the above-described Lot 3 and said owners' tenants, employees, customers, guests, invitees and licensees. \~ PIN 9874-OS-2667 Prepared by and return to: Geoffrey E. Gledhill Coleman, Gledhill, Hargrave & Peek, P.C. 129 E. Tryon Street P.O. Drawer 1529 Hillsborough, NC 27278 STATE OF NORTH CAROLINA COUNTY OF ORANGE AMENDMENT TO MEMORANDUM OF LEASE THIS AMENDMENT TO MEMORANDUM OF LEASE ("Amendment") is made and entered into effective as of , 2009, by and between ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Suite 109, Hillsborough, North Carolina 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, North Carolina 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"), which parking deck is located on a tract and parcel of land particularly described on the attached EXHIBIT A which is incorporated herein by this reference; and WHEREAS, Lessor and Lessee have made and entered into that certain PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL having an effective date of February 25, 2009, as amended and/or modified by that certain AMENDMENT TO PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL having an effective date of June 23, 2009, as amended and/or modified by that certain SECOND AMENDMENT TO PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL having an effective date of S 2009 and as hereafter amended and/or modified (the "Lease'), with respect to two hundred (200) designated parking spaces located in the Parking Deck as identified in the Lease; and WHEREAS, Lessor and Lessee have recorded that certain MEMORANDUM OF LEASE in Book 4789, Page 210, Orange County Registry (the "Memorandum"), for the purpose of providing record notice of the Lease and certain of the terms contained therein; and WHEREAS, the parties desire to record this Amendment for the purpose of providing record notice of the parties' amendment of the Lease as provided in the above-referenced SECOND AMENDMENT TO PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL and amending the Memorandum accordingly. NOW, THEREFORE, for and in consideration of the terms, covenants and conditions set forth in the Lease and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee hereby acknowledge and declare as follows: 1. Pursuant to the terms of the Lease, as amended by the above-referenced SECOND AMENDMENT TO PARKING DECK LEASE AND RIGHT OF FIRST OFFER AND RIGHT OF FIRST REFUSAL, the description of the Property (as defined in the Lease, as amended) is as set forth on the attached EXHIBIT A which is incorporated herein by this reference. 2. Except to the limited extent provided above, the Lease has not been amended, modified and/or altered in any manner. All of the terms, covenants and conditions contained in the Lease, as amended, are incorporated herein by reference. IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed effective as of the day and year first above written. [SIGNATURES BEGIN ON NEXT PAGE] 2 LESSOR: ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company By: George A. Horton, III, Member/Manager By: James W. Parker, Jr., Member/Manager STATE OF NORTH CAROLINA COUNTY OF ORANGE I, ,Notary Public, certify that George A. Horton, III and James W. Parker, Jr. each personally came before me this day and acknowledged that he is a Member/Manager of ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company, and that he, as Member/Manager, being authorized to do so, voluntarily executed the foregoing Amended Memorandum of Lease for and on behalf of ENO RIVER PARKING DECK, LLC for the purposes therein stated. Witness my hand and official seal or stamp, this the day of , 2009. Notary Public Typed or Printed Name of Notary Public My commission expires: (SEAL-STAMP) [SIGNATURES CONTINUE ON NEXT PAGE] -o LESSEE: ORANGE COUNTY, NORTH CAROLINA, a body politic and corporate and a political subdivision of the State of North Carolina By: Valerie P. Foushee Chair, Orange County Board of Commissioners ATTEST: Donna S. Baker, Clerk to the Orange County Board of Commissioners STATE OF NORTH CAROLINA COUNTY OF ORANGE I, a Notary Public of the County and State aforesaid, certify that Donna S. Baker personally came before me this day and acknowledged that she is Clerk to the Board of Commissioners for ORANGE COUNTY, NORTH CAROLINA and that by authority duly given and as the act of ORANGE COUNTY, NORTH CAROLINA, the foregoing Amended Memorandum of Lease was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. Witness my hand and official seal or stamp, this the day of , 2009. Notary Public Typed or Printed Name of Notary Public My commission expires: (SEAL-STAMP) [SIGNATURE PAGES CONCLUDE] F:\Lisa\orangecounty\Pazking Deck Amended Memo of Lease.doc 4 EXHIBIT A Parking Deck Legal Description)