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HomeMy WebLinkAboutAgenda - 05-15-2012 - 5dORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: May 15, 2012 Action Agenda Item No. _-_~j -~ SUBJECT: Re-negotiated Lease - High Rock Road Solid Waste Convenience Center DEPARTMENT: Solid Waste Management PUBLIC HEARING: (Y/N) No ATTACHMENT(S): Lease Agreement Map of Leased Property INFORMATION CONTACT: Gayle Wilson, 968-2885 Michael Talbert, 245-2308 PURPOSE: To consider the approval of the re-negotiated lease for the Solid Waste Convenience Center (SWCC) located on High Rock Road. BACKGROUND: The High Rock Road Solid Waste Convenience Center site is located on ten acres owned by Elizabeth Walters and is part of a much larger parcel. The initial lease agreement was most recently executed in 2000, with automatic renewals every five years and annual escalated lease payments increased based on the Consumer Price Index. The present lease payment cost is $294.16 per month. The site has been leased from Ms. Walters since 1992. Consistent with recommendations by the Solid Waste Planning Work Group and County Staff convenience center modernization concept recommendations, the Manager is proposing funding improvements to High Rock Road SWCC in the Fiscal Year 2012/13 budget. Walnut Grove Church Road SWCC is currently authorized for improvements with construction slated to begin in June 2012. In considering making investments in the High Rock Road site, the Manager desired assurances that the County had secured a longer term agreement with the property owner in order to protect and maximize County investments, if the BOCC approves proceeding with these improvements. If the High Rock Road project is approved by the BOCC, it is anticipated that construction would begin in the spring or summer of 2013. The "new" terms in the agreement include, but are not limited to: Terms and Termination. 2 The term of this lease shall be for an initial term of ten (10) years commencing on July 1, 2012. The lease shall automatically renew for an additional term of ten (10) years unless notice of termination is provided in writing by either party at least two (2) years prior to the lease termination date. Termination of the lease by either party within the initial 10 years shall constitute a breach of the lease. 2. Guaranteed Minimum Rental. The re-negotiated lease cost would be $450 per month. Also, effective on the first day of each Lease Year after the first Lease Year ("Adjustment Date"), the monthly lease cost will be increased annually by Twenty Dollars ($20) per month. The present lease payment is the lowest of the payments paid to both the Walnut Grove Church Road ($350) and Bradshaw Quarry Road ($400) property owners and the lease term of these other leases is five (5) years and not ten (10) years. 3. Right of First Offer to Purchase and Right of First Refusal. A clause is included to give the County Right of First Offer to Purchase and Right of First Refusal. The County's approach to collecting solid waste in unincorporated Orange County through staffed Solid Waste Convenience Centers will continue for the foreseeable future and will incur increased demands once the Orange County Municipal Solid Waste Landfill closes. Therefore, staff recommends the approval of the re-negotiated lease. The property owner has agreed to an initial first year lease cost of $5,400 per year ($450 per month), with annual escalated lease costs of $20 per month thereafter. It should be noted that staff will continue to cooperate with Ms. Walters in the long time practice of allowing the grazing of livestock on the portion of the leased property not actively utilized by the SWCC. FINANCIAL IMPACT: The lease renewal includes a rent increase of $155.84 per month (from $294.16 to $450) for the initial one-year, with annual escalated lease costs per month of $20 thereafter. This represents an additional $29,500.80 in rental costs over the full ten-year term. The funds necessary to cover the annual lease payments would be included in the each fiscal year's departmental budget request, RECOMMENDATION(S): The Manager recommends that the Board approve the lease renewal for the period of July 1, 2012 through June 30, 2022 at a cost of $450 per month for the initial first year, with annual escalated lease costs per month of $20 thereafter, and authorize the Chair to sign on behalf of the Board. Prepared by: Sahana M. Ayer Mail after recording to: Gayle Wilson, P.O. Box 17177, Chapel Hill, NC 27516 NORTH CAROLINA LEASE AGREEMENT AND RIGHT OF FIRST REFUSAL ORANGE COUNTY LEASE AGREEMENT THIS AGREEMENT made and entered into this day of , 2012, by and between Orange County, a body politic and corporate of the State of North Carolina, (hereinafter called the "County"), and Elizabeth T. Walters (hereinafter called the "Owner"); WHEREAS, on the Sth day of April, 2000, the parties hereto entered into a certain lease recorded in Book 2065 at Page 528, Orange County Registry, whereby the Owner leased to the County for a period of five (5) years the premises known and described in Deed Book 2065 at Page 528, Orange County Registry; WHEREAS, the parties agreed to extend the period for which the said premises were leased for an additional five (5) year term on beginning on July 27, 2010, that being the second of a possible ten (10), five (5) year terms; WHEREAS, the County intents to make significant improvements to the solid waste convenience center located on the premises at a substantial financial investment; WHEREAS, the parties have mutually agreed to the termination of the existing lease of the premises upon the effective date of a lease of the premises described herein, subject to the terms and condition of this lease agreement ("Lease Agreement"); WITNESSETH: The Owner hereby agrees to lease the property described herein to the County upon the following terms and conditions: 1. The Premises. The premises herein leased is a tract and parcel of land, together with all improvements located thereon, located in Cedar Grove Township, Orange County, North Carolina and more particularly described in Deed Book 200 at Page 185, Orange County Registry. 2. Term and Termination. a. The term of this lease shall be for an initial term of ten (10) years commencing on July 1, 2012. The lease shall automatically renew for an additional term of ten (10) years unless notice of termination is provided in writing by either party at least two (2) years prior to the lease termination date. Thereafter, the County shall have the right and privilege of extending the lease for three (3) additional consecutive terms five (5) year terms provided that notice of the exercise of each such option is given in writing to the Owner not later than sixty (60) days prior to the date of termination of the then effective lease term. Except as herein otherwise provided, all terms and covenants contained in this Lease Agreement shall be in full force and effect during any extension period. 3. Guaranteed Minimum Rental. The County agrees to pay to Owner the guaranteed rental of $450 per month payable on or before the 10th day of each calendar month commencing with the effective date of this Lease Agreement ("Initial Rental Rate"). Effective on the first day of each Lease Year after the first Lease Year ("Adjustment Date"), the Guaranteed Minimum Rental shall be increased annually by Twenty Dollars ($20) per month. 4. Right of First Offer to Purchase and Right of First Refusal. 4 a. Subject to the terms of this Lease, Owner expressly reserves the right to sell the Premises at any time during the Term, including any extension thereof. However, Owner covenants that she will not list nor offer the Premises for sale without first giving the County written notice in the manner prescribed in Section 8 of this Lease Agreement, of her desire to sell the Premises and having allowed County sixty (60) days from the date of such notice in which to attempt to secure a bind ing agreement with the County for the purchase of the Premises. Owner agrees that any and all offers to purchase submitted by the County during said sixty-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 Premises. b. Owner further grants to the County during the Term, including any extension thereof, the exclusive right at the County's option, to purchase the Premises on the same terms and at the same price as any bone fide offer, and each time any such bona fide offer is received, the Owner shall immediately notify County in the manner prescribed in Section 8 of this Lease Agreement, with full details of such offer including a copy of the same (the name and address of the offeror may be omitted if County is unwilling or unable to maintain the name and address of the offeror confidential). County shall have sixty (60) days from the date of notice in which to elect to exercise this right of first refusal. No sale or transfer of title to the Premises shall be binding on the Lessee unless and until these requirements are fully complied with. c. The right of first refusal herein granted shall be continuing and pre-emptive, binding on Owner's successors or assigns, and the failure of County to exercise this right in any one case shall not affect the County's right to exercise the right of first refusal in other cases thereafter arising during the Term or any extension of the Term. d. Upon Owner and County reaching a binding written agreement for the purchase and sale of the Premises, or upon Owner's receipt of County's notice of election to exercise any right of first refusal granted herein, County shall have a reasonable time in which to examine title to the Premises, but in no event more than sixty (60) days and upon completion of such examination, if the title is found to be satisfactory, County shall tender the purchase price to Owner and Owner shall thereupon deliver to County a good and sufficient Warranty Deed conveying the Premises to the Lessee free and clear of all encumbrances. The rent shall be pro-rated between the Owner and County as of the date of the closing of the purchase and sale of the Premises. Current year's ad valorem property taxes on the Premises shall be paid or prepaid by Owner (grantor) with County's (grantee's) pro-rated share of those taxes added to the agreed purchase price. 5. Improvements and Maintenance. a. The County shall have the right to enter the Premises up the execution and recording of this Lease Agreement and prior to the effective date of the lease and thereafter during the lease term to make any and all improvements, temporary or permanent, to the premises as deemed necessary and desirable to the County for its use of the premises. It is anticipated that the County w ill continue to use the premises as a Solid Waste Convenience Center. The County shall continue to maintain a buffer strip, within the leased premises, around the Solid Waste Convenience Center of at least (40 feet) in width through the use of fencing and natural vegetation. This buffer shall be fashioned in a manner to permit entrance to the Solid Waste Convenience Center constructed on t he premises form High Rock Road to the Solid Waste Convenience Center. b. All improvements to and maintenance of the lease premises shall be solely at the County's expense. Any improvements constructed or provided at the leased premises shall be, upon termination or expiration of the lease, the Premises of the Owner, unless the same can be removed by the County without damage to the leased premises. Provided, however, at Owner's request at the termination of the lease, the County shall remove all such improvements and shall remove any trash, waste and soils contaminated by the County's use of the premises. c. During the term of the lease the County shall be responsible for maintaining the leased premises in a neat, clean and orderly condition at all times. Roadways, parking areas, and other public access ways shall be maintained by the County. Fences and natural vegetation buffers installed on the leased premises by the County shall also be maintained by the County. Any additional ad valorem taxes resulting from any permanent improvements to the leased premises shall be responsibility of the County. 6. Taxes. Owner agrees to pay all taxes and assessments during the term of the lease, including but not limited to municipal, county and state taxes assessed against the leased premises which are incident to the ownership of the leased premises. 7. Representations and Warranties of Owner. Owner represents and warrants to the County (each of which representations and warranties shall be true as of the date Owner executes this Lease) as follows: a. Owner has full right, power and authority to enter into this Lease Agreement and to consummate the lease contemplated herein. b. No person or entity has been granted any license, lease or other right relating to the use or possession of the premises or any part thereof, except the County as expressly provided in this Lease Agreement. 6 c. No person or entity has been granted an option to purchase, right of first offer or right of first refusal as to the Premises except the County as expressly provided in this Lease Agreement. d. To the best of the Owner's knowledge, there is not action, suit or proceeding pending or threatened against or affecting the Premises or any part thereof, or relating to or arising out of the Owner's ownership of the Premises 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 Owner or the Premises. e. There exists no contract, service agreement or obligation affecting the Premises which is in addition to or different from those which have been furnished or otherwise disclosed to the Cou nty. 8. Insurance and Indemnity. a. The County shall at the County's expense obtain and keep in full force during the term of the lease Comprehensive Public Liability policy with limits of no less than $300,000/ $300,000 for personal injury or death and $100,000 for property damage applicable to the County's use of the leased premises. Owner shall be listed as an additional insured if permitted by the North Carolina Association of County Commissioners Insurance Pool. b. To the extent permitted by law and to the extent provided for in insurance contracts owned by the County, the County shall indemnify and hold harmless Owner from and against any and all claims arising from the conduct of the County's business or from any activity, work or things done, permitted or suffered by the County in or about the leased premises. 9. Notices. All notice to be given under this lease shall be made in writing and mailed by certified mail, return receipt requested to the other party at its address set forth below or at such address as the party may provide in writing from time to time. Any such notice shall be deemed to have been received five (5) days subsequent to mailing. OWNER: Elizabeth Walters 7119 High Rock Road Efland, NC 27243 COUNTY: Department of Solid Waste Attn: Gayle Wilson P. O. Box 17177 Chapel Hill, NC 27516 10. Parties. This lease shall be binding and shall inure to the benefit of the parties and their heirs, successors and assigns. 11. Entire Agreement. This lease contains the entire agreement of the parties and there are no other representations, inducement or other provisions except as set forth herein. All changes, additions or deletions hereto must be made in writing and signed by the parties. Any provision of this lease found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this lease. The waiver by the County or Owner of any breach by the other of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach thereof. [SIGNATURES ON FOLLOWING PAGE] IN TESTIMONY WHEREOF, the parties hereto have executed this Lease Agreement on the day and date first above written. OWNER: Elizabeth T. Walters COUNTY: Bernadette Pelissier, Chair Orange County Board of Commissioners ATTEST: Donna Baker, Clerk to the Board [SEAL] STATE OF NORTH CAROLINA, ORANGE COUNTY. I, , a Notary Public for said County and State, do hereby certify that Elizabeth Walters personally appeared befo~e me this day and acknowledged the due execution of the foregoing Lease Extension Agreement. WITNESS my hand and official stamp or seal, this day of , 2012. Notary Public My commission expires: STATE OF NORTH CAROLINA, ORANGE COUNTY. . a Notary Public for said County and State, do hereby certify that Donna Baker personally appeared before me this day and acknowledged that she is the Clerk to the Board of Commissioners for Orange County, North Carolina and that by authority duly given and as the Act of said County the foregoing instrument 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 officia) stamp or seal, this day of , 20 Notary Public My commission expires: High Rock Road Convenience Center 9 C Orange County, NC GIS High Rock Road Convenience Center a •, �� �- •'� i,llahi it �.iiCrtit.�Grii��1U ., \ �, � ... try:>` fi I� •,,,... r � � y iy 411 . , s wm i a tA 1 inch = 1000 feet Created on 4/18/2012, Orange County,North Carolina. http://server2,co.orange.ne.us/OrangeNCGIS/ 4/18/2012