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HomeMy WebLinkAbout2004 NS Purchasing - NORCA HOLDINGS LLC to purchase Durham Technical Community College Satellite Campus Site3 NORTH CAROLINA ORANGE COUNTY CONTRACT FOR PURCHASE OF REAL PROPERTY THIS CONTRACT FOR PURCHASE OF REAL PROPERTY (the "Contract") is made and entered into this day of .2004, by and between NORCA HOLDINGS, LLC, a Delaware limited liability company, and its permitted successors or assigns ("Seller"); uid ORANGE COUNTI', a body politic and corporate, and its permitted successors and assigns ("Buyer"). STATEMENT OF PURPOSE Seller intends to purchase that certain tract of land located in Orange County, North Carolina, as described more particularly below. Subject to Seller's acquisition of the Property (as defined below), Buyer intends to acquire the Property (as defined below) from Seller upon the terms and conditions contained in this Contract. Contingent upon it acquiring the Property, Seller is willing to sell and convey the Property to the Buyer in accordance with the terms and conditions of this Contract. Subject to the terms and conditions of this Contract, and in consideration of the premises and the respective agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Seller and Buyer hereby agree as follov,~s: CONTRACT: 1. Description of Subject Property. The property which is the subject of this Contract is described as follows: a. All that certain lot or parcel of land in Orange County, containhig approximately 20 acres more or less and generally described as Parcel 16 Community College on the Waterstone Land Use Plan attached hereto and incorporated herein by reference as Exhibit A (the "Land"). A mare particular description of the Laud will be attached to this Contract and incorporated herein as Exhibit B once the Survey (as defined below), is completed. Each party will sign and date the exhibit once attached in order to acknowledge their consent thereto, and once signed and dated, Exhibit B shall become an integral part of this Contract to the carne degree as if. it had been attached hereto and incorporated by reference on the date first above written. b. All rights, privileges, and easements appurtenant to the Land, including all rights of view, light and air, water rights, rights of way, or other appurtenances used in connection with the beneficial use of the Land. c. All improvements and fixtures located on the Land and all structures and amenities located on the Land as of the date on which the Land is conveyed to Buyer, if any. RTP 84406v7 All of the items described in Subparagraphs (a), (b) and (c) above are hereinafter collectively referred to as the "Property." 2. Purchase Price. The purchase price ("Purchase Price") to be paid by Buyer for the Property shall be One Million Two Hundred Fifty Thousand and No/IOOths Dollars ($1,250,000.00) plus any amount due Seller as the result of the calculation made in Paragraph 9(a) below for ad valorem property taxes on the Property for the calendar year in which the Closing occurs. The balance of the Purchase Price due under this Contract shall be paid by wire transfer at Closing, subject to price adjustments and prorations as provided in this Contract. a. Earnest Money. Purchaser shall, within five (5) business days following the Effective Date (as defined in Paragraph 22(j) below), deliver to Womble Carlyle Sandridge & Rice, PLLC (the "Escrow Agent"), Twenty Five Thousand and No/100ths Dollars ($25,000.00) (the "Earnest Money"), which shall be held in escrow by the Escrow Agent pursuant to the teens and conditions hereof. If Closing on the Property occurs as contemplated in this Contract, Buyer shall receive the benefit of the Earnest Money as a credit against the Purchase Price. Buyer shall be entitled to a return of the Earnest Money in the event Buyer decides not to close on the Property prior to the end of the Buyer's Inspection Period pursuant to Paragraph 6 of this Contract. In the event of Seller's breach under this Contract, Buyer shall be entitled to a return of the Earnest Money pursuant to Paragraph 20 of this Contract. In the event Seller does not acquire the Property from a third party on or before January 14, 2005 as described in Paragraph 4(a) of this Contract or in the event Buyer exercises its option to temunate this Contract as provided in either Paragraph 5 or Paragraph 12 of this Contract, Buyer shall be entitled to a return of the Earnest Money. In the event Buyer does not terminate this Contract prior to the expiration of Buyer's Inspection Period and the Closing of this transaction does not occur due to Buyer's breach, the Seller shall be entitled to receive payment of the Earnest Money pursuant to Paragraph 20 of this Contract. b. Escrow Agent's Duties. Upon the filuig of a written demand for the Earnest Money by Buyer or Seller, which demand shall be made by either party only upon its good faith belief that it is entitled to the Earnest Money under the terms hereof (the "Demand for Earnest Money"}, the Escrow Agent shall promptly mail a copy of the Demand for Earnest Money to the other party. The other parry shall have the right to object to the Demand for Earnest Money by sending written notice of such objection (the "Objection") to the Escrow Agent in accordance with the Notice provision of Paragraph 22(c) below at any time within ten (10) calendar days after receiving notice of the Demand for Earnest Money, but not thereafter. The Objection shall set forth the basis for objecting to the Dernand for Earnest Money. Upon receipt of an Objection, the Escrow Agent shall promptly mail a copy thereof to the party who filed the Demand for Earnest Money. If the Escrow Agent does not receive an Objection to the Demand for Earnest Money within the ten (10) days set forth above, it shall deliver the Earnest Money to the party sending the Demand for Earnest Money within five (5) business days after the expiration of said ten (10) day deadline. In the event the Escrow Agent receives timely notice of an Objection, the Escrow Agent shall continue to hold the Earnest Money until (i) the Escrow Agent receives written notice signed by both Seller and Buyer directing the delivery of the Earnest Money, in which case, the Escrow Agent shall promptly deliver the Earnest Money in accordance with said notice, or (ii) in 2 RTP 84406v7 _5 the event of litigation beriveen Seller and Buyer, the Escrow Agent shall deposit the Earnest Morse}~ with the Orange County Superior Court in an interpleader action, the costs of which shall be borne by whichever of Seller or Buyer is the losing party. Upon depositing the Earnest Money with the court, the Escrow Agent's duties shall terminate. The Escrow Agent may act upon any instntment or other writing believed by it in good faith to be genuine and to be signed and presented by the proper person, and shall not be liable in connection with the performance of any duties imposed upon the Escrow Agent by the provisions of this Contract. The Escrow Agent shall have no duties or responsibilities except those set forth herein. The Escrow Agent shall not be bound by any modification of this Contract, mrless the same is in writing and signed by Buyer and Seller, and, if the Escrow Agent's duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agents' duties hereunder shall be limited to the safekeeping of the Earnest Money and the disposition of the same in accordance with the terms of this Cottract. Escrow Agent undertakes to perform only such duties as are expressly set forth herein and no implied duties or obligations shall be read into this Contract against the Escrow Agent. Seller and Buyer, jointly and severally, hereby agree to indemnify Escrow Agent and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense, fees or charges of any character or nature, which it may incur or with which it maybe tlueatened by reason of its actnig as Escrow Agent under this Contract, and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including attorney's fees and the costs of defending any action, suit or proceedmg or resisting any claim. 3. Surve . The Seller, at its sole cost and expense, shall provide to Buyer no later than July 30, 2004, a current boundary survey (the "Survey") of the Property to be prepared by the John R. McAdams Cotnpany for the purposes of determining an exact metes and bounds description of the Land; provided, however, Seller reserves the right to make minor adjustments to the Survey, including, but not limited to those necessary to accormnodate road alignments and the installation of utilities so long as such adjustments do no prohibit Buyer's ability to develop the Property pursuant to the terms of this Contract and do not reduce the total acreage of the Property. 4. Closin . a. Seller's obligations under this Contract are expressly contingent upon Seller's acquisition of the Property from a third parry on or before January 14, 2005. If Seller does not acquire the Property on or before January 14, 2005, for any reason whatsoever, this Contract shall automatically terminate and shall be null and void and of no further force or effect. Upon termination pursuant to this Paragraph, neither party to this Contract will have any further obligations or remedies hereunder except that in the event of termination pursuant to this Paragraph, Buyer shall have the right to the return of the Earnest Money as described in Paragraph 2(a) of this Contract. 3 RTP 84406v7 b. If the contingency stated in this Paragraph is met, the closing of the sale and purchase of the Property (the "Closing") shall take place no later than January 15, 2005 (the "Closing Date"). 5. Title to the Property At the Closing, Seller shall deliver to $uyer a special warranty deed (the "Deed") in form and content reasonably satisfactory to Buyer's counsel with documentary or other required stamps to be affixed thereto at Seller's expense, conveying to Buyer a fee simple, marketable and insurable title to the Property, said title to be insurable both as to fee and marketability at regular rates by a title insurance company of Buyer's choice (the "Title Company"), v+ithout exception except as to those matters specifically enumerated in this Paragraph. The Property shall be conveyed b}+ Seller to Buyer subject to the following: Street rights-of--way; ii. All utility, stonnwater, greenway and drainage easements and rights-of- way; iii. City/Comity ad valorem taxes for the year in which Closing occurs; iv. Covenants, restrictions and easements of record which are not otherwise objected to by Buyer as set forth below; v. Zorring and other applicable local, state and federal laws and regulations, including, but not limited to the Waterstone Master Plan approved by the Town of Hillsborough on March 8, 2004, as amended fi~om time to time thereafter ("Waterstone Master Plan"), including any requirement that the Buyer subsequently obtain a special use permit required in order to develop the Property in the manner contemplated herein. vi. The Declaration (as defined in Paragraph 7(f) below). vii. The Restr~etions (as defined in Paragraph 7(f) below). viii. Encroachments, overlaps, boundary disputes or other matters which would be disclosed by an accurate survey of the Property. If, in the opinion of Buyer's counsel, Seller's title fails to meet the requirements of this Paragraph, then any such deficiency shall be specified in writing to Seller no later than the end of the Buyer's Inspection Period (defined below) except for any such deficiency that is the result of actions, inactions, transactions or other event effecting the title that occur after the Buyer's Inspection Period, and Seller shall have the option for a period of thirty (30) days after the Buyer's Inspection Period or thirty (30) days after discovery of the deficiency whichever is applicable to cure such deficiency to the satisfaction of Buyer's counsel at Seller's sole cost and expense. If Seller fails to cure such defect(s) prior to Closing, Buyer shall have the option of: (i) taking title "as is" and consummating the Closing; (ii) extending the date of Closing for a reasonable period of time to enable Seller to cure such defect(s) if and only if Seller is attempting to cute the same (although Seller has no obligation to do so); or (iii) terminating this Contract. RTP 84406v7 6. Buyer'sInspectionPer7od. a. For purposes of this Conh'act, the phrase "Buyer's Inspection Period" shall be defined as the period of time conunencing on the date first above written and ending at 11:59 p.m. E.S.T. on the thirtieth (30th) day following the date upon which the Seller provides the Survey to Buyer. b. Subject to Seller's rights to enter the Property, Buyer, with Seller's reasonable cooperation, shall make all such inspections of the Property and the public record as it deems desirable within the Buyer's Inspection Period. Buyer agrees to indemnify and hold Seller (and the current owner of the Property as of the Effective Date) harmless from all liabilities, claims, damages, liens, costs and expenses (including reasonable attorneys' fees) that Seller may incur in connection with Buyer's inspection of the Property. Buyer is authorized to conduct customary environmental inspections; provided, however, no soil borings or other invasive tests may be conducted on the Property without the prior written consent of Seller, a Within ten (10} days from the Effective Date, Seller shall provide Buyer with copies of all title information in Seller's possession or reasonably available to Seller including, but not limited to, title insurance policies, attorneys' opinions on title, copies of all documents relating to all title exceptions, surveys, site plans, deeds, deeds of trust, promissory notes, loan agreements relating to the Property, plans, drawings, studies, and zoning letters, certificates or other information. Nothing in this provision shall require the Seller to make any investigation of the Title for the Property other than to provide information to the Buyer that already is in its files on the date of this Contract. Specifically, this provision shall not impose any continuing obligation upon the Seller to supplement the information originally supplied to the Buyer pursuant to this paragraph. d. If, during the Buyer's Inspection Period, Buyer is not satisfied with any of the matters inspected or reviewed by it with respect to the Property, Buyer may elect in its sole and absolute discretion to terminate the Contract by giving written notice of such decision to Seller. Failure to provide notice prior to the end of the Buyer's Inspection Period shall be deemed a waiver of the Buyer's rights to such termination under this Contract. Time is of the essence with respect to this Paragraph 6(d). e. If Buyer elects to proceed with this transaction following the expiration of Buyer's Inspection Period, Buyer agrees and acknowledges that it is purchasing the Property in its "as-is, where is," with all faults and conditions thereon, except as may otherwise be expressly provided in this Contract. 7. Site Delivery Conditions. a. Uncleared and Ungraded. Seller shall deliver the Property to Buyer in its natural, uncleared and ungraded condition, and Seller shall have no obligations to perfonu any site work or earthwork on the Property whatsoever after Closing. b. Temporary Constmction Access. On or before December 31, 2005, Seller shall provide temporary construction access from Old NC 86 to the boundary of the Property which is suitable for any typical construction vehicle. 5 RTP 84406v7 c. Utilities. Seller shall deliver to the Property on or before May 1, 2006, public utilities, including water and sewer and electricity extended to the boundary of the Property in a manner sufficient to allow Buyer to make all necessary connections to said public utilities for the benefit of the Property. Provided, however, in the event that Seller is prevented from delivering utilities to the Property as set forth in this paragraph as a result of the action or inaction of any govermmental entity or utility provider. Seller's failure to do so shall not be an event of default under this Contract. In the event of a delay resulting from the action or inaction of any governmental entity or utility provider, Seller shall continue to use its best efforts to deliver the public utilities to the Property within a reasonable time after the cause of the delay is resolved. d. Roadway Access. Subject to the approval of final right of way alignment by the Town of Hillsborough, the road connection from Old NC 86 to the Property shall be completed in a mamrer consistent with the requirements of the Master Plan and the Town of Hillsborough, and available for use with four (4) travel lanes on Waterstone Drive to the southwestern boundary of the Property on or before July 1, 2007. Subject to the approval of the final right of way alignment by the Town of Hillsborough, the road connection from the southwestern boundary of the Property to New NC 86 shall be completed in a mamter consistent with the requirements of the Master Plan and the Town of Hillsborough, and available for use with at least two (2) lanes of navel on or before 7uly 1, 2007. e. Transit Stop. Contingent upon the approval of the Town of Hillsborough, a transit stop shall be located along the road connecting the Property to New NC 86. This transit stop shall include a bus turnaround, an adequate and appropriately designed shelter. Seller shall use its best efforts to complete this transit stop and make it available for use no later than July 1, 2007. £ Development Plan Review. Prior to Closing, Seller will subject the Property to a declaration of restrictive covenants (the "Declaration"). Seller shall provide Buyer with a copy of the Declaration for review prior to recording it in the Orange County Register of Deeds. The Declaration shall include, without limitation, provisions for adopting architectural design guidelines ("Design Guidelines") to be administered and enforced by an Architectural Control Committee and the creation of a property owners association. Seller shall employ Michael Watson, AIA, of Bowers, Ellis & RTatson Architects, P.A. of Asheville, North Caro]ina to prepare the Design Guidelines. The Design Guidelines shall be provided to the Buyer a reasonable amount of time prior to the conclusion of the Buyer's Inspection Period and no later than October 15, 2004. The Declaration and Design Guidelines shall not be subject to the approval of Buyer; provided, however, said Declaration and Design Guidelines shall not prohibit the construction of a community college or public library on the Property. The Buyer shall develop the Property only with a community college or public library unless Seller agrees in its sole discretion to remove such restriction. In the event Buyer decides to build a public library on the Property, the librazy will be located on the Property at a location mutually acceptable to Seller and Buyer. Further, Buyer agrees not to construct any other structure of any kind or nature whatsoever in the area between any such library building and the boundary between the Property and Parcel 14. The Deed shall contain use restrictions consistent 6 R7P 84406v7 with the terms of this Paragraph, which shall run with the title to the Land and be binding upon the Buyer and its successors in title (the "Restrictions"). g. Cultural Resources Inventory. Poor to Closing, Seller shall videotape the segtnent of the abandoned trader path/road bed located on the Property in accordance with the requirements of Paragraph 14 of the Conditions of Approval of the Waterstone Master Plan. h. Except as specifically provided in Paragraph 7(c) above, time is of the essence with respect to Paragraphs 7(b), 7(c) and 7(d) of this Contract. 8. Closing Costs. Seller shall pay for the preparation of the deed for the Property and the transfer tax stamps to be affixed thereto. Buyer shall be responsible for the cost of recording the deed and any other instruments, not including the Declaration, to be recorded in comnection with the Closing. Except as otherwise provided herein, each party shall bear all of its own expenses relating to this transaction, including its own attorneys' fees. 9. Settlement Adiustments. Unless otherwise specified in this Contract, all income, expenses and costs related to the Property shall be prorated as of the date on which the Closing actually occurs (the "Effective Closing Datc") as follows: a. Seller shall pay at the Closing all ad valorem property taxes on the Property for the calendar year in which the Closing occurs. Buyer's share of the pro-rated ad valorem property taxes on the Property that would be charged to Buyer at the Closing on the Property if Buyer were not a North Carolina local govetmnent shall be added to the purchase price as provided in Paragraph 2 of this Contract. In the event either the tax assessment or tax rate for the year in which the Closing occurs has not been established as of the Effective Closing Date, the ad valorem property taxes to be paid at Closing shall be determined on the basis of the then cun'ent tax assessment and tax rate. b. To the extent that the amount of any of the items above shall not be available for exact proration as of the Effective Closing Date, Seller or its representative and Buyer or its representative shall meet as soon after the Closing as possible and compute and settle and adjust or readjust the closing prorations between the parties so that they accurately reflect the obligations of each pursuant to this Contract as of the Effective Closing Date. 10. Maintenance of the Pronerty. Between the Effective Date and the Effective Closing Date, Seller shall continue to maintain the Property in good condition and repair, ordinary wear and tear alone excepted, and shall not cause or permit any waste respecting the Properly. Seller shall not take any action which would adversely affect the value of or title to the Property. 11. Brokerage Conunissions. Seller and Buyer mutually acknowledge and represent that they have dealt with no broker in conmection with this transaction. Each patty agrees, to the extent permitted by law, to indemnify and hold the other harmless from and against any. and all claims, demands or the cost and expense thereof, including reasonable attorneys' fees arising out of any brokerage commission, fee or other compensation due or alleged to be due in connection with the transaction contemplated by this Contract based upon art agreement alleged to have been made or other action alleged to have been taken by the indemnifying party 7 RTP 54406v7 ICS 12. Eminent Domain. If, prior to the Effective Closing Date, all or any part of the Property is taken by eminent domain or if condemnation proceedings are commenced, which would prevent the Property from being used for the purposes contemplated in this Contract, Buyer shall have the option, by giving written notice to Seller, to terminate this Contract If Buyer does not so elect to terminate this Contract within ten (10) business days of receiving notice of a condemnation proceeding, the Contract shall remain in full force and effect, and Seller shall assign, transfer and set over to Buyer at the Closing all of Seller's right, title and interest in and to any awards that may be made for such taking. 13. Representations and Warranties of Seller. hi addition to the other warranties and representations set forth in this Contract, Seller makes the following representations and warranties to Buyer, each of which shall be deemed material: a. The Property now is, and at the Closing will be, in full compliance with applicable zoning and land use laws, and other local, state or federal laws and regulations and Seller does not have actual knowledge of any proposed change (except as provided in this Contract) in any such code, law or regulation which would interfere with the intended use of the Property. b. There will be no taxes, charges or assessments of any nature or description arising out of the conduct of Seller's busuiess or the operation of the Property which would constitute a lien against the Property and that will be unpaid on the Effective Closing Date or not paid fi~om the Seller's Closing proceeds, except for the lien of ad valorem property taxes for the year ui which the Closing occurs. c. Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended. d. All representations and warranties of Seller contained in this Contract will be true and correct as of the Effective Closing Date. 14. Conditions to Buyer's Obligations. In addition to the other conditions set forth in this Contract, the obligations and liabilities of Buyer shall in all respects be conditioned upon the satisfaction of each of the following conditions prior to or simultaneously with the Closing, any of which may be waived by written notice from Buyer to Seller: a. Seller shall have delivered to Buyer all of the items required to be delivered under this Contract in accordance with the terms of this Contract. b. Seller shall have complied with and otherwise performed each of the covenants and obligations of Seller required to be performed prior to the Closing Date in accordance with the terms of set forth in this Contract. c. All representations and warranties of Seller as set forth in this Contract shall be in all respects true and correct as of the Effective Closing Date. 15. Representations and Warranties of Buyer. s RTP 84406v7 Buyer has full power and authority to execute, deliver and carry out its obligations under this Contract and all documents executed in connection herewith without the consent of any other person or entity; the execution, delivery, and performance of this Contract and the tansactions contemplated herein shall not breach the provisions of any agreement binding upon Buyer or any governmental order to which Buyer is a party; and the person signing this Contract has full power acrd authority to bind Buyer and to execute and perform this Contract. This Contract is a binding obligation of Buyer, enforceable against Buyer in accordance with its terms. 16. Conditions to Seller's Obli atg ions. In addition to the other conditions set forth in this Contract, the obligations and liabilities of Seller shall in all respects be conditioned upon the satisfaction of each of the following conditions prior to or simultaneously with the Closing, any of which may be waived by written notice from Seller to Buyer: a. Buyer shall have delivered to Seller all of the items required to be delivered under this Contract in accordance with the ternis of this Conh'act. b. Buyer shall have complied with and otherwise performed each of the covenants and obligations of Buyer required to be performed prior to the Closing Date in accordance with the terms of set forth in this Contract. c. All representations and waranties of Buyer as set forth in this Contract shall be in all respects true and con~ect as of the Effective Closing Date. d. That Seller has acquired the Property pursuant to the express contingency set forth ur Paragraph 4 above. 17. Environmental Matters. a. Representations and Warranties. Without having made any independent investigation of any kind or nature whatsoever, Seller represents that: i. Seller has no actual knowledge of any underground storage tanks being located on the Property; ii. Seller has no actual knowledge of, and no reason to believe: (a) that any industrial use has been made of the Property; (b) that, except for chemicals used in the farming of the Property, the Property has been used for the storage, treatment or disposal of chemicals or any wastes that are classified by federal, state or local laws as hazardous or toxic substances; or (c) that any manufacturing, landfilliug or chemical production occurred on the Property. iii. To Seller's actual knowledge as of the date of this Contract, the Property is in compliance with all federal, state and local environmental laws and regulations, including, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Public Law No. 96-510, 94 Stat. 2767, 42 U.S.C. 9601, et seq., and the Superfund Amendments and Reauthorization Act of 1986("SARA"), Public Law No. 99-499, 100 Stat. 1613. 9 RTP 84406v7 ~~ iv. Except for chemicals used in the fanning of the Property, Seller has no actual know]edge of the existence, extent or nature of any hazardous materials, substances, wastes or other enviromnentally regulated substances (including any materials containing asbestos), in or under the Property. b. Inspection and Remedies. Prior to the expiration of the Buyer's Inspection Period as defined above, Buyer may obtain from a reputable company, at Buyer's sole expense, a written report evaluating whether the Property is flee from contamination and/or evidence of contamination from hazardous wastes, hazardous substances, hazardous materials, toxic substances, hazardous air pollutants or toxic pollutants as those terms are used in the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation aztd Liability Act, the Hazardous materials Transportation Act, the Toxic Substances Control Act, the Clean Air Act and the Clean Water Act, or in any amendments thereto, or in any regulations promulgated pursuant thereto, or in any applicable state or local law, regulation or ordinance. If such report discloses any matters adverse to the interests of the Buyer, Buyer shall notify Seller in writing prior to the expiration of Buyer's Inspection Period. After such notification, but prior to the expiration of Buyer's Inspection Period, Buyer shall elect in writing to either: (i) close on the Property or (ii) terminate this Contract and all rights of the patties hereunder. c. Seller shall indemnify and hold Buyer harmless from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities, casts (includutg cleazrup costs), judgments and expenses (including attorneys', consultants' or experts' fees and expenses) of every kind and nature suffered by or asserted against Buyer as a direct or induect result of any requirement under any law, regulation or ordinance, local, State or federal, which requires the elhnination or removal of any hazardous materials, substances, wastes or other environmentally regulated substances placed on the Property at any tune after the Closing Date by Seller or Seller's agents related to the development by Seller of the Waterstone Master Plan or any part thereof. Seller's obligations under this Section shall survive the Closing and contuiue in full effect notwithstanding receipt of the purchase price. 18. Closing Documents. a. At Closing, the Seller shall deliver to Buyer the following i. a duly executed and acknowledged Deed in recordable form conveying fee simple and marketable title to the Property free and clear of all liens and encumbrances, except as provided elsewhere in this Contract; ii. a duly executed lien affidavit warranting and holding Buyer and the Title Company harmless against unpaid laborers' and materialtnen's liens; iii. a certificate given under penalty of perjury and on a form approved under regulations promulgated under Section 1445 of the Internal Revenue Code of 1986, as amended, that Seller is not a foreign person; 10 RTP 84406v7 13 iv. all other documents required by this Contract to be delivered by Seller; and v. such other docwnents and papers wlvch may be necessary to the consummation of the transaction described in this Cmitract as may reasonably be requested by Buyer or Buyer's counsel. b. At Closing, Buyer shall deliver to Seller: i. the Purchase Price by wire transfer to the trust account of Seller's attorney; and ii. such other documents and papers which may be necessary to the consummation of the transaction described in this Contract as may reasonably be requested by Seller or Seller's counsel. 19. Assignment. Tlus Contract shall not be assigned without the prior written consent of the non-assigning part~+, such. consent not to be um'easonably withheld, conditioned or delayed. Z0. Default and Remedies. a. In the event of a default or breach by Seller of any of the covenants or conditions or obligations of Seller under this Contract or in the event any of Seller's representations and warranties contained in this Contract are not true and correct as of the date of this Contract and as of the Closing Date, Buyer shall have as its sole and exclusive remedy, the right to terminate this Contract by giving written notice to Seller and the right to the return of the Earnest Money deposited pursuant to Paragraph 2(a) above plus Twenty Five Thousand and No/100 Dollars ($25,000.00) as liquidated damages, since the parties agree that actual damages under this Contract are difficult, if not impossible to estimate. b. In the event of a default or breach by Buyer of any of the covenants or conditions or obligations of Buyer under this Contract or in the event any of Buyer's representations and warranties contained in this Contract are not true and correct as of the date of this Contract and as of the Closing Date, Seller shall have as its sole and exclusive remedy, the right to terminate this Contract by giving written notice to Buyer and the right to receive payment of the Earnest Money deposited pursuant to Paragraph 2(a) above plus Twenty Five Thousand and No1100 Dollars ($25,000.00) as liquidated damages, since the parties agree that actual damages under this Contract are difficult, if not impossible to estimate. 21. Entry. Buyer shall have the right to enter upon the Property at any time after the date of this Contract for purposes of site planning, surveying and environmental inspections. Such entry right shall be exercised so as to not um'easonably interrupt any activities of Seller. 22. Miscellaneous. a. Sun+ival of Provisions. All representations contained in Paragraphs 7 and 17(c) above shall survive the Closing and the delivery of the Deed and other documents. 11 RTP 84406v7 ~~ b. Desi cation Agreement. The parties designate Seller as the person responsible for filing Form 1099 with the Internal Revenue Service following the consummation of the transactions described in this Contract. By execution of this ageemcnt below, said party accepts and agrees to be bound by this designation. The parties intend that this Section shall constitute a "desitmation agreement" within the meaning of 26 C.F.R. Section L6045-4, as the same may be amended from time to time. The address for Seller is set forth below. c. Notices. Any notice required or permitted to be given under this Contract shall be in writing and shall be deemed to have been given when deposited in Federal Express (or any other national "next day" delivery service) or in the United States mail via registered or certified mail, postage prepaid, return receipt requested, and addressed as follows: SELLER: Peter J. Herm, Esq. Senior Vice President/Real Estate Counsel The Trump Group 4000 Island Boulevard, PH-4 Aventura, Florida 33160 with copy to: William 7. Brian, Jr., Esq. Womble Carlyle Sandridge & Rice, P.L.L.C. P.O. Box 13069 Research Triangle Park, NC 27709 BUYER: John M. Link, 7r. County Manager Orange County 200 S. Cameron Street Hillsborough, NC 27278 with copy to: Pamela Jones Director of Purchasing and Central Services Orange County 129 E. King Street Hillsborough, NC 27278 and: Geoffrey E. Gledhill, Esq. Coleman, Gledhill, Hargrave & Peek, P.C. Orange County Attorney P.O. Drawer 1529 129 E. Tryon Street Hillsborough, NC 27278 Either party may, from thne to time, by notice as provided above, designate a different address to which notice to it shall be sent. RTP 84406v7 1z i~ d. Auplicable Law. This Contract shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to principles of conflicts of law. e. Entire A~ Bement. This Contract and the attached Exhibit(s) contain the entire understanding and agreement by and between the parties and all prior or contemporaneous oral or written agreements or instruments are merged in this Contract, and no amendment to this Contract shall be effective unless the same is in writing and signed by the parties. f Bindin Effect. This Contract shall be Uinding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns. g. Captions and Headings. The captions and headings throughout this Contract are for convenience and reference only, and the words contained in such captions and headings shall in no way be held to define or add to the interpretation, construction or meaning of any provision of this Contract. h. Counterpart Originals. This Contract has been executed in two (2) originals, and Seller and Buyer each acknowledge receipt of one of the executed originals. i. Prohibition Against Recording this Contract/Memorandum of Agreement. Neither party may record this Contract or a Memorandum of Contract in the public records of Orange County, North Carolina. Any such recording shall render this Contract null and void. j. Effective Date of this Contract. The "Effective Date" of this Contract shall be the date upon which the last party hereto filly executes the Contract. If this Contract is not fully executed Uy both parties on or before June 30, 2005 at 5:00 p.m., E.D.T., this Contract shall terminate and become null and void. 13 RTP 84406v7 l~ IN ~RTNESS WFIEREOF, the parties have caused this Contract to be executed and sealed as of the date set forth below each signature. "SELLER" NORCA HOLDINGS, LLC, a Delaware limited liability company ~, By: Its: 5~' UGCi ~~2~siJ~f"T Date: ~~ti~ ~ l ~ ~.~)~7 ~/ "BUYER" ORANGE COUNTY, a body politic and corporate By: _ Its: Date: This instrument has been preaudited in the manner required by the Local Govenunent Budget and Fiscal Control Act. Orange County Finance Officer 14 RTP 84406v7