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HomeMy WebLinkAbout2008-012 AMS - Telesis Construction Management LLC (Library Building)~^ Please return this copy to Clerk to the Board's office for PAF ~-/S-ate' AGREEMENT OF PURCHASE AND SALE ~~ (LIBRARY BUILDING) THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made and entered into, effective as of the Date of Agreement (as hereinafter defined), 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 THAT: WHEREAS, Seller is the owner of the Property (as hereinafter defined); and WHEREAS, subject to the terms and conditions set forth below, Seller desires to sell the Property to Purchaser and Purchaser desires to purchase the Property from Seller. NOW, THEREFORE, in consideration of the agreements contained herein 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. Pro e .Subject to the provisions of this Agreement, Seller shall sell to Purchaser and Purchaser shall purchase from Seller the following property: 1.01 All of that certain tract or parcel of land located in Hillsborough, Orange County, North Carolina, as identified and described in the attached EXIIIBIT A, together with the Building (as hereinafter defined} and any and all other improvements and fixtures now or hereafter located thereon, and any and all other rights and easements appurtenant thereto (collectively the "Real Property"). 1.02 All equipment, machinery, appliances, fixtures (not a part of the Real Property) and other tangible personal property owned by Seller attached to or located on the Real Property and necessary for the occupancy, use and/or operation of the Real Property for its intended purpose(s) (collectively the "Equipment"). 1.03 All local, state and federal permits, licenses, certificates (including certificate(s) of occupancy) and approvals necessary to occupy, use and/or operate the Real Property for its intended purpose(s) (collectively the "Permits"), to the extent assignable or transferable. 1.04 All site plans, surveys, soil and substrata studies, architectural drawings, plans and specifications, engineering plans and studies, floor plans, environmental studies, assessments or examinations, landscape plans, and other plans and studies of any kind in Seller's possession that relate to the Real Property. Seller makes no representations or warranties with respect to these documents. 1.05 All keys and other materials of any kind in Seller's possession necessary for the occupancy, use and/or operation of the Property for its intended purpose(s). 1.06 All rights, titles and interests of Seller in and to any condemnation award made or to be made in respect of the Real Property; and Seller shall execute and deliver to Purchaser, at Closing (as hereinafter defined); all proper instruments for the conveyance of such title and the assignment and collection of any such award. 1.07 Any and all other rights, privileges and appurtenances owned by Seller and in any way related to, or used in connection with, the occupancy, use and/or operation of the Real Property for its intended purpose(s). The term "Property," as used in this Agreement, shall mean, collectively, all of the real property and all of the tangible and intangible personal property described in this SECTION 1, including, but not limited to, the Real Property, the Building, the Equipment and the Permits. SECTION 2. Purchase Price. 2.01 The purchase price (the "Purchase Price") for the Property shall be Six Million Six Hundred Sixty-Two Thousand Nine Hundred Fifty-Seven and No/100 Dollars ($6,662,957.00) 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. 2.02 The Purchase Price shall be increased by such amount(s) as may be necessary to compensate Seller for (a) any increase in Building construction costs and/or expenses reasonably incurred by Seller resulting from changes made by Purchaser to the Interior Upfit (as hereinafter defined), (b) the amount by which the cost of the Interior Upfit shall exceed $55.00 per square foot (the "Interior Upfit Allowance"), (c) 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 ("the Construction Agreement") by and between Seller and Purchaser, and (d) 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 together make up the "Guaranteed Maximum Price". 2.03 The Purchase Price shall be credited by the budgeted 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. 2.04 Notwithstanding the execution and delivery of this Agreement, the right of Seller to seek an adjustment to the Purchase Price for any of the grounds recited in paragraph 4 of the Agreement of Intent between Seller and Purchaser dated November 2, 2006 ("the Agreement of Intent") is hereby reserved. Should Seller seek an adjustment to the Purchase Price as provided in this paragraph, Seller shall deliver to Purchaser with the requested adjustment a detailed analysis of the reasons for the request relating the reasons to applicable provisions(s) of the Agreement of Intent and comparisons of requested changes with the same information on documents and other information relied upon by Seller in arriving at the Purchase Price. If the Seller's ground for requesting an adjustment to the Purchase Price is that Seller was delayed in the commencement of construction by reason of the public bid process or by the reason of matters reasonably beyond Seller's control, Seller shall deliver to Purchaser with the requested adjustment a copy of each and every document and any other information relied upon by Seller in arriving at the Purchase Price. SECTION 3. Costs and Prorations. 3.01 Seller shall pay the cost of deed preparation and any and all real estate excise tax, any transfer tax, revenue tax or other imposition of any nature applicable to this transaction. Purchaser shall pay the cost of its title examination, the title insurance premium charged by Purchaser's title insurer for -2- owner's and lender's title insurance coverage, the cost of any updated survey required by Purchaser, Purchaser's lender or Purchaser's title insurer and the per page cost of recording the deed. Each party shall pay its own attorneys' fees. 3.02 All ad valorem real and personal property taxes assessed against the Property for the calendar year in which the Closing occurs shall be paid by Seller at Closing. All ad valorem real and personal property taxes assessed against the Property for the calendar year in which the Closing occurs shall be prorated as of the Closing Date on a calendar year basis. The Purchase Price shall be increased by the amount of Purchaser's share of such prorated taxes. If the tax bill for the calendar year in which Closing occurs is not available at the time of Closing, the parties shall estimate the ad valorem real and personal taxes for the calendar year in which Closing occurs based upon the assessed value of the Property as of January 1 of the calendar year in which Closing occurs and the tax rate in effect for the Property on the Closing Date (as hereinafter defined). 3.03 In the event any adjustments pursuant to this Section are, subsequent to Closing, found to be erroneous, then either party hereto is entitled to additional monies and shall invoice the other party for such additional amounts as may be owing, and such amount shall be paid promptly by the other party upon receipt of the invoice. Such invoice shall be accompanied by reasonable substantiating evidence. SECTION 4. Title. At Closing, Seller shall furnish and deliver to Purchaser, at Seller's expense, the following: 4.01 Seller shall convey good, marketable, fee simple and insurable title to the Real Property to Purchaser by general warranty deed. The Real Property shall not be subject to any (a) deed of trust, security agreement, judgment, unpaid assessments for improvements, lien or claim of lien, or any other title exception or defect that is monetary in nature, or (b) any lease, rental agreement or other right of occupancy of any kind, whether written or oral. Seller agrees to pay and satisfy of record any such title defects or exceptions prior to or at Closing at Seller's expense. The Property may be subject to easements and rights of way for utilities and vehicular and pedestrian access to and from adjoining properties of Seller and others (including the parking deck to be constructed by or for Seller) and W. Margaret Lane, N & K Street and/or S. Churton Street, whether now existing or hereafter granted by Seller in connection with its development of the Property and adjoining properties, specifically including, without limitation, the temporary and permanent access, construction, utilities and other easements shown on the plats of survey recorded in Plat Book 102, Pages 52, 53 and 54, Orange County Registry, and to such other matters, exclusive of any title exception or defect described in (a) or (b) above, as are noted in Schedule B - Part I of Investors Title Insurance Company owners policy of title insurance no. 200700432CH (collectively the "Permitted Exceptions"), and no such Permitted Exception shall constitute a basis for any title objection by Purchaser. As to any other title exceptions or defects (the "Title Exceptions"), Purchaser shall have until and including the day which is thirty (30) calendar days prior to the Closing Date (the "Title Exceptions Date") within which to examine title to the Real Property and to notify Seller, in writing, of any Title Exceptions to which Purchaser objects. If Purchaser fails to deliver to Seller written notice of objection to any Title Exceptions on or before the Title Objections Date, Purchaser shall be deemed to have waived its right to object to any Title Exceptions except those arising after the Title Exceptions Date. If Purchaser delivers to Seller written notice of objection to any Title Exceptions on or before the Title Exceptions Date, Seller shall then have the right, but not the obligation, for a period of fifteen (15) calendar days after receipt of such written notice within which to cure or satisfy such objection. If the objection is not cured or satisfied by Seller within such fifteen (15) day period, or if Seller is unable to provide Purchaser with reasonable assurance within such fifteen (15) day period that such objection will be cured at or before Closing, then Purchaser shall have the right to terminate this Agreement, in which event neither party shall have any further -3- rights, obligations or duties to one another under this Agreement. If Seller cures or satisfies the objection within such fifteen (15) day period, or provides reasonable assurance to Purchaser with such fifteen (15) day period that such objection will be cured at or before Closing, then this Agreement shall continue in effect. .Purchaser shall have the right at any time to waive any objection to any Title Exceptions that it may have made and thereby preserve this Agreement in effect. 4.02 An assignment in a form and content reasonably satisfactory to Purchaser, dated as of the Closing Date, which assigns to Purchaser all of Seller's rights, titles and interests in and to all Contracts, Permits and other Property which Purchaser has elected to purchase and assume and which may properly be assigned to Purchaser thereby. 4.03 A bill of sale in a form and content reasonably satisfactory to Purchaser, dated as of the Closing Date, which conveys to Purchaser all of the Equipment and other Property which Purchaser has elected to purchase and which may properly be conveyed to Purchaser thereby. 4.04 An affidavit and agreement regarding debts and liens executed by Seller and Seller's contractor(s) and dated as of the Closing Date, stating that there are no unpaid debts for any work that has been done or materials furnished to the Real Property prior to and as of the Closing Date and further stating that Seller shall indemnify, save and protect Purchaser and Purchaser's lender (if any) and title insurer harmless from and against any and all claims, liabilities, losses, damages, causes of action, and expenses (including court costs and reasonable attorneys' fees related thereto) arising out of, in connection with, or resulting from, any such debts and liens in a form and substance mutually acceptable to counsel for Seller and Purchaser. 4.05 An affidavit of title with respect to the Real Property executed by Seller and Seller's contractor(s) in a form acceptable to Purchaser's title insurer to issue title insurance without exception for mechanics' or materialmen's or other statutory liens or for the rights of parties in possession. 4.06 To the extent available, the originals of all Contracts, Permits and other items identified in paragraph 5.01. 4.07 An affidavit stating that Seller is not a "Foreign Person" within the meaning of IRC Section 1445(f)3. 4.08 Such instruments or documents as are necessary, or reasonably required by Purchaser or Purchaser's title insurer, to evidence the authority of Seller to consummate the purchase and sale transaction contemplated herein and to execute and deliver the required closing documents, including without limitation, copies of Seller's organizational documents and the originals of such documents as are required to evidence the due authorization and approval of the transaction contemplated herein. 4.09 Such other documents as may be reasonably required by Purchaser, Purchaser's counsel, Purchaser's lender or the title insurer to carry out the terms and provisions of this Agreement. SECTION 5. Closing. 5.01 Subject to the provisions of SECTION 6, the closing or settlement ("Closing") of the transaction contemplated by this Agreement shall be held at the office of Purchaser's counsel in Hillsborough, North Carolina, or at any other place in Orange County, North Carolina that maybe designated by Purchaser. Closing shall occur during regular business hours not later than thirty (30) calendar days after -4- the date of Substantial Completion (as defined in the Construction Agreement); provided, however, in no event will Closing occur prior to July 1, 2008. The exact date ("Closing Date"), time and place of Closing shall be as agreed upon by Purchaser and Seller. 5.02 As a condition precedent to Purchaser's obligation to close the purchase of the Property, there shall have occurred no material adverse change in any of the following from that which existed on the Date of Agreement with respect to: (a) the zoning applicable to the Real Property and the real Property's compliance with all applicable zoning, land use regulations and special permits; (b) the status of the record title to the Real Property; (c) the status of Hazardous Materials (as hereinafter defined) on or affecting the Real Property or the Real Property's compliance with Environmental Laws (as hereinafter defined); (d) the restrictions applicable to the Real Property and the Real Property's compliance with all such restrictions; and (e) the truth or accuracy of any warranty or representation made by Seller in this Agreement. Seller shall notify Purchaser in writing of any such material adverse change of which Seller is knowledgeable. 5.03 As a further condition precedent to Purchaser's obligation to close the purchase of the Property, construction of the Building, including the Interior Upfit and the exterior improvements to the Real Property, shall satisfy the requirements of "substantial completion" pursuant to the Construction Agreement and a Certificate of Occupancy for the Building shall have been issued by the Town of Hillsborough. In the event, at the time of Closing, the construction of the Building, including the Interior Upfit and the exterior improvements to the Real Property, has not attained "final completion" pursuant to the Construction Agreement, a portion of the Purchase Price shall be escrowed until final completion is attained. The amount of the Purchase Price to be escrowed shall equal 125% of the estimated cost of all work that must be performed for final completion to be attained, including all punch and warranty work. The estimated cost to be escrowed shall be determined by the Architect. 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 license- agreement pursuant to which Seller shall license 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 the number of parking spaces in the parking deck under construction 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 shall be determined by subtracting from two hundred forty-six (246) 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 Purchaser acknowledge that it is their intent that a total of two hundred forty-six (246) 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 extend that such parking spaces cannot be accommodated within the project complex and outside the parking deck, shall parking spaces be allocated to Purchaser within the parking deck. 5.05 As a further condition precedent to Purchaser's obligation to close the purchase of the Property, Purchaser must have received underwriting approval and North Carolina Local Government Commission (LGC) approval of installment purchase financing totaling at least $25,000,000 to enable Purchaser to purchase the Property, and other property making up the Orange County Office and Library Complex. The underwriting and LGC approved financing must be in compliance with Purchaser's policies of -5- 15% of Purchaser's General Fund Budget debt service payments and 7% annual growth of Purchaser's General Fund Budget. SECTION 6. Construction of the Buffdin . 6.01 Subject to the terms, covenants and conditions set forth in this Agreement, Seller shall construct, or cause to be constructed, a two story commercial building upon the Real Property containing approximately 23,454 square feet (building footprint), the purpose of which building shall be to serve as a public library (the "Building"). The shell of the Building and the exterior improvements to the Real Property shall be constructed and completed substantially in accordance with the Construction Agreement and the Contract Documents referenced therein. 6.02 At any time from and after the Date of Agreement and until the Closing, Purchaser may enter upon the Real Property and perform, at the sole cost and expense of Purchaser (but not in a manner which shall unreasonably disrupt or delay construction of the Building or the Interior Upfit), such analysis, review, tests or inspections of the Real Property, including construction of the Building and the Interior Upfit, or any other aspect of the Real Property as may be pertinent and material to Purchaser in its sole and absolute discretion. SECTION 7. Risk of Loss. Subject to the provisions hereof, the risk of loss or damage to the Property occurring prior to Closing shall be borne by Seller. If the Property is damaged by fire, storm, wind or other casualty prior to Closing, Seller shall give prompt written notice thereof to Purchaser. This Agreement shall continue in effect notwithstanding the occurrence of such casualty and damage, and Seller shall proceed forthwith to complete construction of the Building and site improvements with the proceeds from all applicable casualty policies. Upon substantial completion, closing shall proceed as provided for herein except the date for Closing shall be adjusted for the rebuilding subsequent to casualty. SECTION 8. Eminent Domain and Assessments. Seller has not received any notice of any pending condemnation, assessment or similar proceeding or charge affecting the Real Property or any portion thereof and has no knowledge that any such proceeding or charge is contemplated. If Seller receives notice of the commencement or threatened commencement of eminent domain or assessment or other like proceedings against the Real Property or any portion thereof at any time between the Date of Agreement and the Closing Date, Seller shall immediately notify Purchaser in writing, and Purchaser shall elect within ten (10) days from and after such notice either: (a) to terminate this Agreement in which case this Agreement shall terminate and be of no further force and effect; or (b) to close the transaction contemplated by this Agreement in accordance with the terms hereof but subject to such proceedings, in which event the Purchase Price shall not be reduced and Seller shall assign to Purchaser all of Seller's rights in any condemnation award or proceeds. Purchaser shall deliver notice of its election to Seller in writing. If Purchaser does not make its election within the aforesaid time period, Purchaser shall be deemed to have elected to close the transaction contemplated hereby in accordance with clause (b) above. SECTION 9. Representations and Warranties of Seller. Seller represents and warrants to Seller (each of which representations and warranties shall be true as of the Date of Agreement and as of the Closing) as follows: 9.01 Seller is a limited liability company duly organized, validly existing and in good standing in accordance with the laws of the State of North Carolina. Seller has full right,. power and authority to enter into this Agreement and to consummate the sale contemplated herein, all required action necessary to authorize Seller to enter into this Agreement and to consummate the sale contemplated herein has been taken, -6- and the joinder of no person or entity other than Seller will be necessary to convey the Property fully and completely to Purchaser at Closing. 9.02 There are no adverse or other parties in possession of the Property or of any part thereof. No person has been granted any license, lease or other right relating to the use or possession of the Property or of any part thereof. 9.03 To the best of Seller's knowledge, there is no action, suit or proceedings pending or threatened against or affecting the Property or any part thereof, or relating to or arising out of Seller'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 Seller or the Property. 9.04 There exist no contracts, service agreements or obligations affecting the Property which are in addition to or different from those which have been furnished or otherwise disclosed to Purchaser. 9.05 Seller has no knowledge of any release, discharge or storage of any Hazardous Material on or upon the Real Property or any part thereof in violation of any Environmental Laws. Seller will not permit, suffer or allow any such Hazardous Material to be released, discharged or stored upon the Real Property or any part thereof in violation of any Environmental Laws at any time prior to Closing. For purposes of this Agreement, 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 material, waste, pollutant or contaminant, defined as such in (or for the purposes of) any Environmental Laws. For purposes of this Agreement, 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. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN THIS AGREEMENT AND IN THE AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES BY AND BETWEEN SELLER AND PURCHASER, THE PROPERTY SHALL BE SOLD TO PURCHASER IN "AS-IS", "WHERE AS" CONDITION. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, ELSEWHERE IN THIS AGREEMENT AND IN THE AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES BY AND BETWEEN SELLER AND PURCHASER, NEITHER SELLER, NOR ANY OF ITS MEMBERS, MANAGERS, AFFILIATES, EMPLOYEES, ATTORNEYS, ACCOUNTANTS, CONTRACTORS, CONSULTANTS, AGENTS OR REPRESENTATIVES, NOR ANY PERSON PURPORTING TO REPRESENT ANY OF THE FOREGOING, HAVE MADE ANY REPRESENTATION, WARRANTY, -7- GUARANTY, PROMISE, PROJECTION OR PREDICTION WHATSOEVER TO PURCHASER WITH RESPECT TO THE PROPERTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY REPRESENTATION OR WARRANTY AS TO (A) THE CONDITION, SAFETY, QUANTITY, QUALITY, USE, OCCUPANCY OR OPERATION OF THE PROPERTY, OR (B) THE PAST, PRESENT OR FUTURE REVENUES OR EXPENSES WITH RESPECT TO THE PROPERTY. SECTION 10. Warranties of Purchaser. Purchaser represents, warrants and covenants to Seller that Purchaser is a body corporate and politic and a political subdivision of the State of North Carolina duly created, validly existing and in good standing in accordance with the laws of the State of North Carolina. Purchaser has full right, power and authority to enter into this Agreement and to consummate the purchase of the Property as provided herein, and, except for action by Purchaser necessary to obtain the approval required by SECTION 5.05 and that approval, all required action necessary to authorize Purchaser to enter into this Agreement and to consummate the purchase of the Property as provided herein has been taken. SECTION 11. Commissions. 11.01 The parties acknowledge and agree that there are no brokerage fees, real estate commissions, finder's fees, acquisition costs or other compensation due to any real estate agent, broker or other third party in connection with this transaction. 11.02 Seller and Purchaser do hereby represent each to the other that neither knows of any real estate agent, broker or other party involved in this transaction who is entitled to, or has a claim for, a real estate commission or fee and neither party has employed any such person. Seller and Purchaser hereby covenant and agree each with the other to indemnify and forever hold the other harmless from and against any loss, liability, costs, claims, demands, damages, actions, causes of action and suits arising out of or in any manner related to the alleged employment or use by the indemnifying party of any real estate agent, broker or other party. SECTION 12. Notices. All notices and statements required or permitted by this Agreement 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 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 Seller: Telesis Construction Management, LLC 1000 Corporate Drive, Suite 109 Hillsborough, NC 27278 Attention: George A. Horton, III with a copy to: William D. Bernard Brown & Bunch, PLLC 101 N. Columbia Street Chapel Hill, NC 27514 -8- If to Purchaser: Orange County, North Carolina P.O. BOX 8181 Hillsborough, NC 27278 Attention: Pam Jones, Director of Purchasing and Central Services with a copy to: Geoffrey E. Gledhill Coleman, Gledhill, Hargrave & Peek, P.C. 129 E. Tryon Street P. O. Drawer 1529 Hillsborough, NC 27278 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. SECTION 13. Remedies. In the event this transaction fails to close by reason of Purchaser's failure to perform its obligations under this Agreement, Seller shall have the right to pursue any and all rights and remedies available to it at law or in equity for Seller's breach, including, without limitation, the right, to the extent permitted by law, to sue for specific performance. In the event Seller fails or refuses to convey the Property to Purchaser in accordance with the terms of this Agreement or otherwise perform its obligations hereunder, then Purchaser shall have the right to pursue any and all rights and remedies available to it at law or in equity for Seller's breach, including, without limitation, the right to sue for specific performance. SECTION 14. Waiver. No term, condition or covenant contained in this Agreement shall be deemed waived by any act, omission or forbearance, or any series of same, by either Purchaser or Seller. The only waivers that shall be effective under this Agreement 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. SECTION 15. Coordination with Other Agreements. Seller and Purchaser agree and understand that this Agreement evidences a portion of the transaction contemplated in the Agreement of Intent, and that the rights and relations of the parties under this Agreement need to be coordinated and harmonized with the other transactions therein contemplated. In particular, but not in limitation, the closing contemplated in this Agreement shall be exercised simultaneously with the closing referenced in the Agreement of Purchase and Sale (Office Building). SECTION 16. No Joint Venture. Nothing in this Agreement shall constitute or be construed to constitute a joint venture between Purchaser and Seller. SECTION 17. No Third Party Beneficiaries. Neither party intends to confer any rights under this Agreement upon any third party. Standing to enforce this Agreement shall rest exclusively in the parties hereto. SECTION 18. Time of Essence. Time is of the essence of this Agreement. -9- SECTION 19. Headings. The section and paragraph headings in this Agreement are inserted for convenience only and are in no way intended to interpret, define, or limit the scope of content of this Agreement or any provision hereof. SECTION 20. Possession. Seller shall deliver actual possession of the Property to Purchaser at Closing. SECTION 21. Surviving Clauses. The provisions of this Agreement relating to tax and other pro- rations after Closing and Seller's and Purchaser's respective indemnifications shall survive Closing or any termination of this Agreement by either party whether as a matter of right or in breach of this Agreement, notwithstanding any other provision in this Agreement to the contrary. Except as set forth in the preceding sentence or as otherwise expressly set forth herein, all other provisions of this Agreement shall not survive Closing or any termination hereof by either party as a matter of right. SECTION 22. 1031 Exchange. Notwithstanding any provision to the contrary in this Agreement, Purchaser acknowledges and agrees that Seller shall have the right, at Closing, to sell the Property as a part of a transaction intended to qualify as a tax-free exchange under Section 1031 of the Code (a "Tax-Free Exchange"). If Seller elects to effect aTax-Free Exchange pursuant to this paragraph, Purchaser shall execute and deliver such documents as may be required to effect the Tax-Free Exchange which are in form and substance reasonably acceptable to Purchaser, and otherwise cooperate with Seller in all reasonable respects to effect the Tax-Free Exchange. Notwithstanding the foregoing, the Tax-Free Exchange shall not diminish Purchaser's rights, nor increase Purchaser's liabilities or obligations, under this Agreement. Seller shall pay for all fees, costs and expenses in connection with such Tax-Free Exchange. SECTION 23. Governing Law and Jurisdiction. This Agreement 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 Agreement or any provision hereof shall be brought in the state or federal courts of North Carolina. Each of the parties to this Agreement hereby submits and consents to the jurisdiction of such courts. SECTION 24. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Seller and Purchaser and their respective successors and assigns, if any. SECTION 25. Exhibits. The exhibits referred to in and attached to this Agreement are incorporated herein by this reference. SECTION 26. Date of Agreement. As used herein, the term "Date of Agreement" shall mean the date as of which this Agreement is executed by both Purchaser and Seller as indicated below. SECTION 27. Counterparts. This Agreement may be executed and delivered in several counterparts, and all such counterparts so delivered and executed shall constitute but one and the same instrument. -10- 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 B~. ~ ~ ... ~~~~ l ~ (SEAL) George A. Ho on, Member/Manager James VK. Parker, Jr ~_~ ~.~ Date: 2 6 By: Name: Title: Date: Orange County, North Carolina, a corporate and a political subdivision of Carolina -11- (SEAL) R EXHIBIT A LEGAL DESCRIPTION (LIBRARY TRACT) Being all of Lot 1, consisting of 0.49 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 such Lot. 12925\O1\MU02Legal Description (LibraryTtact)