HomeMy WebLinkAboutAgenda - 12-03-2012 - 7a
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ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date:December 3, 2012
Action Agenda
Item No.7-a
SUBJECT: Senior Care of Orange County, Inc. –Revised By-Laws and Lease Agreement
DEPARTMENT:County Manager,County PUBLIC HEARING: (Y/N)No
Attorney
ATTACHMENT(S):INFORMATION CONTACT:
Revised Senior Care of Orange County Gwen Harvey, Assistant County
By-LawsManager, 919-245-2307
Resolution Approving Lease to Senior Janice Tyler, Aging, 919-968-2071
Care of Orange CountyJohn Roberts, County Attorney,
Lease Agreement with Senior Care of 919-245-2318
Orange CountyJeff Thompson, AssetManagement
Services, 919-245-2658
PURPOSE:
To considertwo actions concerning Senior Care of Orange County, Inc. (SCof OC,
Inc.):
Approval of revised by-lawsfor SC of OC, Inc.; and
Approval of a resolution authorizing a lease agreementwith SC of OC, Inc.
BACKGROUND:
SC of OC, Inc. administers adult day care services, known as the Florence G.
Soltys Program, designed for the welfare of maturing residents, particularly within central and
northern Orange, to maintain each participant’sindependence and capacity for self-care andto
promote his/her social, physical and emotional well-being, with the aim of preventing
inappropriate or premature institutionalization.
The Master Aging Plan (MAP) approved by the BOCCin March 2001 identified an adult day
health program as one of its top priorities. The BOCC approved the adult day health initiative
and set aside $40,000 for the planning and implementation of adult day health center, under the
guidance and direction of the Aging Department, in November 2001. From the beginning it was
agreed the initiative would be a community partnership and not an on-going County program.
The adult day health center opened its doors in March 2003.
By-Laws:
The BOCC approved by-laws for a new nonprofitin December 2003, and the center
was incorporated inJanuary 2004 to assume governance and operation under the name Senior
Care of Orange County, Inc. (SC of OC, Inc.). The County Attorney advisesthe by-laws
approved by the BOCC in 2003 for SC of OC, Inc. need revision to clarify its relationshipto
Orange County government and distinguish its independence as a community-based private
nonprofit. Revisions have been made to Article IV, Board of Directors, and Article IX, General
Provisions. The BOCC must approve the revised by-laws because existing by-laws, as written,
can only be modified by action of the BOCC.
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Once the revised by-laws as attachedare approved, the SC of OC, Inc. Board will be able to
make modifications as it elects under statutes pertaining to incorporation as a private nonprofit.
The Board of SC of OC, Inc. participated in the review, development, and discussion of the
revised by-laws, andvoted at its meeting in June 2012 for County Management, Agingand
Legal to submit to the BOCC for approval.
Lease Agreement:
The adult care facility from inception was co-located with the central Orange
County Senior Center in the Meadowlands office park. When the senior centermoved into new
space builtadjacent with the SportPlex, SC of OC, Inc. moved too within the overall capital
project to maintain coordination of senior services. Orange County has not had a formal lease
agreement with SC of OC, Inc. at either physical location.
SC of OC, Inc. occupies approximately 3,550 of rentable, conditioned square feet with a 750
square foot exterior secure patio. The current market lease for this space would fall between
$11 and $13 per square foot, per year,with the tenant paying for itsown utilities and janitorial,
resulting in an annual lease payment to the County of $39,048 - $46,152.
County Management and the County Attorney advise that a formal lease agreement with SC of
OC, Inc.needs to be approved by the BOCC to clarify its relationship to Orange County
government and distinguish its independence as a community-based private nonprofit. An
annual lease payment of $1is recommended in light of SC of OC., Inc.’slimited financial
resources with written understanding Orange County can re-evaluate the lease payment amount
should the nonprofit’seconomic circumstances change and/or the rental space discontinue
public purpose use. The lease is renewable for a period of five years.
At the November 20, 2012regular meeting, the Board of Commissioners requestedinformation
on whether to insert into the lease or bylaws a requirement either that Senior Care servesonly
Orange County residents and/or that a supermajority of Senior Care’s Board of Directorsbe
residents of Orange County.
Department on Aging Director Janice Tyler indicates that it is certainly acceptable to askthat
Senior Care, Inc.’s first prioritybeto serve the residents of Orange County, but that it would not
be advisable to establish a specific number. The census at the facility has been very good the
past few months, but that can unfortunately change within a matter of days since the facilityis
serving such a frail population. Providedspace is available, the facility is available to anyone
that meets the admission criteria and can make the payment arrangements.
Regarding the Board of Directors’ membership, Ms. Tyler has suggested it remainas proposed.
The Board of Directors has members representing UNC Healthcare, the University and others.
There are often many people that work and serve in Orange County, but are not residents in the
County. In addition, at some point, the Senior Care Boardmight have a desire to reach out to
Duke Hospital for representation. Allowing the Senior Care Board to establish its own policies, if
itso chooses, would allow for these needsto be addressed.
FINANCIAL IMPACT:
There is no financial impact associated with BOCC adoption of the
revised by-lawsfor, andminimal impact with approval of a lease agreement for SC of OC Inc.
RECOMMENDATION(S):
The Manager recommends the Board approve the revised by-laws,
approve the resolution authorizing the lease to Senior Care of Orange County, Inc., and
authorize the Chair to sign the resolution and the lease agreement.
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BYLAWS
OF
SENIOR CARE OF ORANGE COUNTY, INC.
ARTICLE I
OFFICES
Section 1.Principal Office. The principal office of the
corporation shall be located at 105Meadowland Drive, Hillsborough,
North Carolina 27278.
Section 2.Registered Office. The initial registered office of
the corporation shall be identical with the principal office of the
corporation. The registered office of the corporation required by law
to be maintained in the State of North Carolina may be, but need not
be, identical with the principal office, and shall be designated from
time to time by the Board of Directors.
ARTICLE II
MEMBERS
Section 1.Membership. The corporation shall not have members.
ARTICLE III
PURPOSE AND POWERS
Section 1.Purpose. This shall be a non-profit organization,
organized exclusively for charitable, educational and scientific
purposes, and operated for the purposes of:
1.Establishing services for frail or disabled older
adults in Orange County, North Carolina, in an effort to
supplement the similar efforts of public agencies and other
non-profit organizations;
2.Advocating for services to frail or disabled older
adults in community settings that support personal
independence and promote social, physical, emotional and
spiritual well being;
3.Operating or supporting programs to provide services
designed to enable aging frail, disabled or handicapped
adults to remain in their own homes or to return to their
own homes;
4.Developing an employment pool for Certified Nursing
Assistants for service to frail or disabled older adults in
Orange County, North Carolina;
5.Educating the general public about the needs of the
frail or disabled older adult population;
6.Receiving financial or other support from the general
public, private businesses, foundations and educational
or governmental entities; and,
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7.Distributing resources, in the regular course of
business, to organizations that qualify as exempt
organizations under Section 501(c)(3) of the Internal
Revenue Code or a corresponding section of any future
federal tax code.
Section 2. Powers. The Corporation shall have all the powers
granted non-profit corporations under the laws of the State of North
Carolina. Notwithstanding anything herein to the contrary, the
Corporation shall exercise only such powers as are in furtherance of
the exempt purposes of organizations set forth in the sub-section of
the Internal Revenue Code under which the Corporation chooses to
qualify for exemption, as the same exists at the time of such
qualification, or as it may be amended from time to time.
ARTICLE IV
BOARD OF DIRECTORS
Section 1.General Management. The business and affairs of the
corporation shall be managed by its Board of Directors.
Section 2. Number. The number of Directors constituting the
Board of Directors shall be no less than 9 (nine) and no more than 18
(eighteen), and initially shall consist of 9 (nine). The initial
directors shall be identified and instated at an organizational
meeting of the incorporators identified in the Articles of
Incorporation. At the organizational meeting of the initial directors
or at any subsequent annual or special meeting of the directors, the
Board of Directors may increase its members by increments of 3
(three), up to the maximum of 18 (eighteen), provided, increases in
the number of Directors may not exceed 3 (three) in any twelve month
period.
Section 3.Qualification.
The Board shall consist of two appointed positions, to be filled
as follows:
A.One director shall be appointed by the
Board of Directors of Carol Woods Retirement Community
in Chapel Hill, North Carolina.
B.One director shall be appointed by the
President and Chief Executive Officer of the
University of North Carolina Hospitals in Chapel Hill,
North Carolina.
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The remaining Directors shall be designated herein as “at large”
and shall be nominated and instated as provided herein. A majority of
Directorsmust be residents of OrangeCounty, North Carolina.
Nomineesfor at large Director positionswillbe recruited from the
Carol Woods Retirement Community, The Friends of the Senior Center,
Inc. and the general Orange County public. In order to carry out the
work of the board, theDirectors“at large” should represent a variety
of disciplines with expertise in gerontology, finance, marketing,
personnel and law.
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Section 4.Term. By casting of lots, The initial Directors shall
be divided into three (3) classes of three directors each, to serve in
the first instance for terms of one, two and three years,
respectively. Thereafter the successors in each class of directors
shall be elected to serve for terms of three (3) years and until their
successors shall be appointed and shall qualify. There shall be no
limit on the terms of designated or appointed Directors. At Large
Directors may serve two successive three (3) year terms. Thereafter,
such a Director again shall become eligible for Board membership after
one year from the actual termination of his or her prior membership to
the Board. In the event of death, resignation, retirement, removal or
disqualification of a Director during his or her elected term of
office, his or her successor shall be elected to serve until the
expiration of the term of his or her predecessor. Notwithstanding the
stated terms of the directors, each director shall hold office until
his or her successor shall have been elected and qualified, or his or
her death, resignation, retirement, removal or disqualification.
Section 5. Removal. A designated Director may be removed by an
amendment to these Bylaws, as provided herein, deleting or changing
the provisions of this Article containing the designation. . An at
large Director may be removed at any time for cause or for the good of
the corporation by a vote of two-thirds of the Directors eligible to
vote. If any such at large directors are so removed, new at large
directors may be elected at the same meeting.
Section 5.Vacancies. Any vacancy occurring in designated or
appointed Director positions shall be filled as provided in Section 3
of this Article. Any vacancy occurring among the at large Director
positions may be filled by the affirmative vote of a majority of the
remaining Directors of the corporation (even though less than a
quorum) or by the sole remaining Director.
A Committee on Nominations appointed by the Chair of the Board
shall present a slate of at large Directors prior to the Annual
Meeting. The proposed slate shall be included with the Notice mailed
prior to such meeting. Nominations may be made from the floor,
provided the nominee has been consulted.
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A Director elected to fill a vacancy shall be elected for the
unexpired term of his or her predecessor in office. Any Directorship
to be filled by reason of an expired term or an increase in the
authorized number of Directors shall be filled only by election at an
annual meeting or at a special meeting of the members called for that
purpose.
Section 6.Chair of the Board. The President of the
corporation shall be the Chair of the Board of Directors. The Chair
shall preside at all meetings of the Board of Directors and perform
such other duties as may be directed by the Board.
Section 7. Committees of the Board. The Board of Directors, by
resolution adopted by a majority of the number of Directors fixed by
these Bylaws, may designate the officers of the Corporation as an
Executive Committee and may designate standing committees, each of
which shall have and may exercise the authority of the Board of
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Directors to the extent authorized by law and provided in such
Resolution. The designation of any committee and the delegation
thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability
imposed upon it or him or her by law.
In addition to any such Standing Committees of the Board, there
may be such other committees and/or task forces as the President and
Board of Directors shall appoint annually to carry out the work of the
corporation.
ARTICLE V
MEETINGS OF DIRECTORS
Section 1.Location of Meetings. All meetings of the Board of
Directors shall be held at the principal office of the corporation or
atsuch other place as shall be designated by the Notice of the
meeting, or as agreed upon by the Board. All meetings shall be open
to the general public and make provision for public comment.
Section 2.Annual Meeting. The Directors shall hold an Annual
Meeting in January of each year for the purpose of adopting the
budget for the following calendar year and transacting other business
to come before the Board. Annual Reports shall be presented at the
meeting by the President, Secretary and Treasurer, and by the
Chairpersons of any Standing Committees; provided that presentation of
the Treasurer's report may be delayed until a regular meeting of the
Board to be held in March to allow time for its preparation after the
end of the fiscal year.
Section 3.Regular Meetings. In addition to the Annual Meeting,
the Board of Directors may provide, by resolution, the time and place
for the holding of additional regular meetings.
Section 4.Special Meetings. Special meetings of the Board of
Directors may becalled by or at the request of the President or any
two Directors. Such a meeting may be held as fixed by the person or
persons calling the meeting.
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Section 5. Notice of Meetings. Regular meetings of the Board of
Directors may be held without notice. The person or persons calling a
special meeting of the Board of Directors shall, at least fourteen
(14) days before the meeting, give notice thereof by any usual means
of communication. Such notice shall specify the purpose for which the
meeting is called.
Section 6.Waiver of Notice. Any Director may waive notice of
any meeting. The attendance by a Director at a meeting shall
constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called
or convened.
Section 7.Quorum. A majority of the number of Directors fixed
by these Bylaws shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors.
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Section 8.Manner of Acting. Except as otherwise provided in
these Bylaws, the act of the majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors.
Section 9.Action Without Meeting. In circumstances where a lack
of action would cause prejudice or hardship to the Corporation and
circumstances dictate that action be taken before a meeting of the
Board can be called, an action to be taken at a Board of Directors’
meeting may be taken without a meeting if the action is taken by all
members of the Board. The action shall be evidenced by one or more
written consents signed by each Director before or after such action,
describing the action taken, and included in the minutes or filed with
the corporate records reflecting the action taken. The action taken
under this section is effective when the last Director signs the
consent, unless the consent specifies a different effectivedate. A
consent signed under this section has the effect of a meeting vote and
may be described as such in any document.
Section 10.Limited Liability. Any person serving as a Director
of the corporation shall be immune, individually, from civil liability
for monetary damages (except to the extent that the same are covered
by insurance) for any act or failure to act arising out of his or her
services as a Director unless such action or inaction falls within the
list of exceptions to such immunity set forth in N.C.G.S. 55A-8-60.
In addition, Directors may be indemnified from personal liability as
provided generally in N.C.G.S. 55A, Article 8, Part 5, and Directors
shall be indemnified from personal liability as provided in N.C.G.S.
55A-8-52.
Section11.Presumption of Assent. A Director of the
corporation who is present at a meeting of the Board of Directors at
which action on any corporate matter is taken shall be presumed to
have assented to the action taken unless his or her contrary vote is
recorded or his or her dissent is otherwise entered in the Minutes of
the Meeting or unless he or she shall file a written dissent to such
action with the person acting as the secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered
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mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to
a Director who voted in favor of such action.
ARTICLE VI
OFFICERS
Section 1.Officer-Directors. The officers of the corporation
shall consist of a President, a Vice-President, a Secretary, a
Treasurer, an Assistant Treasurer and such other Vice Presidents,
Assistant Secretaries, Assistant Treasurers, andother officers as the
Board of Directors may from time to time elect. All Officers shall be
members of the Board of Directors.
Section 2.Election and Term. The officers of the corporation
shall be elected by the Board of Directors at the Annual Meeting and
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each officer shall hold office for one year or until his or her
successor shall have been elected and qualified.
A Committee on Nominations appointed by the Chair of the Board
shall present a slate of Officers prior to the Annual Meeting. The
proposed slate shall be included with the Notice mailed prior to such
meeting. Nominations may be made from the floor, provided the nominee
has been consulted.
Vacancies occurring during the term of office shall be filled by
a vote of the Board at a Regular or Special Meeting upon nominations
submitted by a Committee on Nominations. Nominations may be made from
the floor, provided the nominee has been consulted.
Section 3.Removal. Any officer may be removed from his or her
post as officer by majority vote of the Board whenever in its judgment
the best interests of the corporation will be served thereby. Such
person may request rehearing by the Board of Directors if at least one
Director who voted for removal at the next regular meeting of the
Boardof Directors moves for reconsideration and such motion is
seconded and carried by majority vote of the Board.
Section 4.Bonds. The Board of Directors may by resolution
require any officer, agent, or employee of the corporation to give
bond to the corporation, with sufficient sureties, conditioned on the
faithful performance of the duties of his or her respective office or
position, and to comply with such other conditions as may from time to
time be required by the Board of Directors.
Section 5.President. The President shall preside at all
meetings of the Board of Directors; shall represent the corporation to
the general public, shall serve as ex-officio member of all committees
(except the Committee on Nominations), and shall present an annual
report. He or she shall sign, with the Secretary, or any other proper
officer of the corporation thereunto authorized by the Board of
Directors, any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be
executed, except in cases where the signing and execution thereof
shall be expressly delegated to some other officer or agent of the
Page 6 of 10
corporation, or shall be required by law to be otherwise signed or
executed;and in general he or she shall perform all duties incident
to the office of the President and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 6.Vice President. In the absence of the President or
in the event of his or her death or inability to act, a duly elected
Vice President may perform the duties of the President, and when so
acting shall have all of the powers of and be subject to all of the
restrictions upon the President. Such a Vice President may perform
such other duties as from time to time may be assigned to him or her
by the President or the Board of Directors.
Section 7.Secretary. The Secretary shall: (a) keep the
Minutes of the meetings of the Board of Directors; (b) see that all
noticesare duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be custodian of the minutes of all
committees (in one or more books provided for that purpose) and of
other corporate records and of the seal of the corporation andsee
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that the seal of the corporation is affixed to all documents the
execution of which on behalf of the corporation under its seal is duly
authorized; (d) keep a register of the post office address of each
director which shall be furnished to the Secretary by such director;
and (e) in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned
to him or her by the President or by the Board of Directors.
Section 8.Treasurer. The Treasurer shall, if practical, be a
bookkeeper/accountant and shall:(a) have charge and custody of and be
responsible for all funds and securities of the corporation; receive
an give receipts for moneys due and payable to the corporation from
any source whatsoever, and deposit all such moneys in the name of the
corporation in such depositories as shall be selected in accordance
with the provisions of Section 4 of Article VII of these Bylaws; (b)
prepare, or cause to be prepared, monthly reports to be given at each
meeting of the Board of Directors, and a true statement of the
corporation's assets and liabilities as of the close of each fiscal
year, all in reasonable detail, which statement shall be made and
filed at the corporation's registered office or principal place of
business in the State of North Carolina within four (4) months after
the end of such fiscal year and kept available there for a period of
at least ten years; (c) in conjunction with the staff and/or a
Committee on Finance appointed by the Board, prepare the annual
budget; and (d) in general perform all of the duties incident to the
office of Treasurer and such other duties as from time to time may be
assigned to him or her by the President or by the Board of Directors,
or by these Bylaws.
Section 9.Assistant Treasurer. The Assistant Treasurer shall
serve at the direction of the Treasurer and assist the same with the
fulfillment of his or her duties.
Section 10.Limited Liability. Officers may be indemnified from
personal liability as provided generally in N.C.G.S. 55A, Article 8,
Part 5, and Officers shall be indemnified from personal liability as
provided in N.C.G.S. 55A-8-52.
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ARTICLE VII
STAFF
The staff may consist of an Executive Director or Coordinator and
such other staff as may be necessary to carry out the functions of the
corporation, as the Board of Directors shall determine from time to
time. The Corporation shall be authorized and empowered to pay
reasonable compensation for servicesrendered in furtherance of the
purposes set forth herein. The Board of Directors shall have the
authority to review and set the compensation for any staff member. The
Executive Director or Coordinator shall be responsible to the Board of
Directors. All other paid staff shall be responsible to the Executive
Director or Coordinator.
ARTICLE VIII
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CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 1.Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances. All such contracts shall be in accordance with the annual
budget approved by the Board of Directors at its Annual Meeting.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors.
Such authority may begeneral or confined to specific instances.
Section 3.Checks and Drafts. All checks, drafts or other
orders for the payment of money, issued in the name of the
corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to
time be determined by resolution of the Board of Directors.
Section 4.Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such depositories as the Board of Directors may select.
ARTICLE IX
GENERAL PROVISIONS
Section 1.Seal. The corporate seal of the corporation shall
consist of two concentric circles between which is the name of the
corporation and in the center of which is inscribed SEAL; and such
seal, as impressed on the margin hereof, is hereby adopted as the
corporate seal of the corporation.
Section 2. Waiver of Notice. Whenever any notice is required to
be given to any Director by law, by the charter or by theseBylaws, a
waiver thereof in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be
equivalent to the giving of such notice.
Page 8 of 10
Section 3. Fiscal Year. The fiscal year of the corporation shall be
the calendar year, from January 1st to December 31st.
Section 4.Amendments. After thirty (30) days written notice to
all Directors, and subject to the approval requirement stated herein,
theseBylaws may be amended or repealed and new Bylaws may be adopted
by the affirmative vote of a two-thirds majority of the Board of
Directors present and voting at any Regular, Annual or Special Meeting
duly and properly called. The notice of any such meeting shall
include notice that a vote to amend or repeal the Bylaws (as the case
may be) shall be taken at such meeting and a copy of the proposed
change. Provided further, amendment of this paragraph and amendment
of provisions stated in these Bylaws regarding: (I) the management of
the Corporation; (ii) the qualification of directors; (iii) merger;
(iv) acquisition; (v) sale of assets; (vi) purchase of assets; and
(vii) the distribution of assets upon dissolution shall require the
unanimous vote of all directors in office at the time such amendment
is undertaken.
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Section 5.Parliamentary Authority. Roberts Rules of Order,
Newly Revised, shall govern in all cases where they do not conflict
with the Bylaws.
Section 6.Objectives of Corporation. This corporation has been
organized for the purposes set forth in the Articles of Incorporation
and these Bylaws. No substantial part of the activities of the
corporation shall be carrying on of propaganda, or otherwise
attempting to influence legislation and theCorporation shall not
participate in or intervene in (including the publishing or
distribution of statements) any political campaign on behalf of any
candidate for public office. Notwithstanding any other provisions of
these Bylaws, the Corporation shall not carry on any other activities
not permitted to be carried on (a) by an organization exempt from
Federal income tax under section 501(c)(3) of the Internal Revenue
Code or a corresponding provision of any future Federal tax code, or
(b) by an organization, contributions to which are deductible under
section 170(c)(2) of the Internal Revenue Code, or the corresponding
provision of any future Federal tax code.
Section 7.Non Profit Corporation. No part of the net earnings
shall inure to the benefit of or be distributable to its officers,
directors or other persons in similar positions except that the
Corporation shall be authorized and empowered to pay reasonable
compensation for services rendered and to make payments and
distributions in furtherance ofthe purposes set forth herein.
Section 8.Merger, Acquisition, Sale of Assets and Purchase of
Assets.The Corporation may not effect a merger with any other
corporation or entity, or acquire another corporation or entity, or
consent to the acquisition of the Corporation by any other
corporation, entity or individual, or allow the sale of all, or
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substantially all, of the Corporation’s assets to any other
corporation, entity or individual, or purchase all or substantially
all of another corporation or entities assets, without the unanimous
vote of all directors in office at the time such action is undertaken.
Section 9.Liquidation of Assets. In the event of dissolution
of the Corporation, by merger, acquisition or sale of assets, the
Board of Directors for said purpose shall, after paying or making
provision for the payment of all the liabilities and obligations of
the Corporation, transfer and convey all remaining assets of the
Corporation to an organizationwith an exempt purpose within the
meaning of section 501(c)(3) of the Internal Revenue Code (or a
corresponding section of any future Federal tax code) which is also a
purpose similar to that of the Corporation. Any such assets not so
disposed of shall be disposed of by the Court of Common Pleas (known
in the State of North Carolina as the Superior Court) of the county in
which the principal office of the Corporationis then located,
exclusively for such purposes or to such organization or
organizations, as said Court shall determine, which are organized and
operated exclusively for such purposes.
Approved April 5, 2004; Amended __________.
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RES-2012-104
ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION LEASING PROPERTY
Whereas,Orange County owns the Adult Day Health Center located at the Central
Orange Senior Center, 103 Meadowlands Drive, Hillsborough, NC 27278, comprising
approximately 3,550 conditioned square feet and approximately 750 square feet of patio
space (the “Premises”); and
Whereas,Senior Care of Orange County, Incorporated, a North Carolina Nonprofit
Corporation, desires to lease the Premises; and
Whereas,Senior Care of OrangeCounty, Incorporated provides valuable services to
the citizens and residents of Orange County; and
Whereas,North Carolina General Statute 160A-272 authorizes the lease of county-
owned properties; and
Whereas,in consideration of the valuable services provided to the citizens and
residents of Orange County by Senior Care of Orange County, Incorporated, the Board
of Commissioners of Orange County desires to lease the Premises to Senior Care of
Orange County, Incorporated.
THEREFORE BE IT RESOLVED,that Board of County Commissioners hereby
approves the lease of the county property described above to Senior Care of Orange
County, Incorporated and directs the execution of all necessary instruments
accordingly.
rd
This the 3Day of December2012.
____________________________________
Bernadette Pelissier, Chair
Orange County Board of Commissioners
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STATE OF NORTH CAROLINA
COUNTY OF ORANGE LEASE
THIS LEASE, made and entered into as of the 1stday of December, 2012, by and between
Orange County,a political subdivision of the State of North Carolina, hereinafter referred to as
"County," and Senior Care of Orange County, Inc., a North Carolina Nonprofit Corporation,
hereinafter referred to as "Tenant;"
WITNESSETH
:
THAT FOR and in consideration of the mutual covenants and conditions hereinafter
set forth, the parties hereto do hereby agree as follows:
1.Premises.County does hereby lease and let unto Tenant and Tenant does
hereby accept as Tenant those certain premises designated as the Adult Day Health Center
located at the Central Orange Senior Center 103 Meadowlands Drive, Hillsborough,NC 27278,
comprising approximately 3,550 conditioned square feet and approximately 750 square feet of
patio space (the “Leased Premises”).
2.Acceptance of Premises.The Tenant represents that the Leased Premises,
the sidewalks and structures adjoiningthe same, any subsurface conditions thereof, and the
present uses and non-uses thereof have been examined by the Tenant. The Tenant accepts
the same in the condition in which they now are without representation or warranty, express or
implied, in fact orby law, by the County, the nature, condition or usability thereof, or the uses to
which the Leased Premisesmay be put. Provided, County shall be responsible for ensuring
that the heating/air-conditioning system is in good operating condition; the exterior walls and
roof, the lighting system (excluding such additions as may be required for Tenant's particular
business operation) and the parking area and sidewalks are in good repair on the date of
commencement of the lease term. County represents and warrants to Tenant that it holds fee
title to the Leased Premises. The County shall not be responsible for any latent defect or
change of condition in such building, improvements and personalty, and the rent hereunder
shall in no case be withheld or diminished on account of any defect in such property, any
change in the condition thereof, any damage occurring thereto or the existence with respect
thereof of any violations of the laws or regulations of any governmental authority, except as
hereinafter provided.In addition, Tenant acknowledges that the Leased Premisesis a smoke
free building and does not permit tobacco use inside of the building.
3.Term and Rental.
(a)This lease shall commence on December1, 2012,and shall continue for a term
of one year ending on December 1, 2013,unless sooner terminated as herein provided.
(b)Tenant and County agree that the fair market lease rate for the Leased
Premises is $13.00 per square foot for the conditioned space for a total monthly lease value of
$3846.00. Tenantand County agree and acknowledge that the Tenant provides valuable
services to the residents of Orange County which services amount to an in-kind payment toward
that monthly lease valueequaling $3846.00per month.
(c) The Tenant agrees to pay the County without demand at its office, or at such
other place or places as County may from time to time designate in writing, the sum of $1.00for
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the one year lease term on or before the fifteenthday of the lease term. Tenant acknowledges
this rental rate is discounted in an effort to assist Tenant in providing a public benefit that being
adult day care and servicesand that any renewal of this Lease shall be subject to an increased
rental rate as determined by County.
(d) This Lease may be renewed for up to five one-year terms.
4.Holdover.If the Tenant shall remain in possession of the Leased Premises
after the expiration of the original or renewal period as set out above, such possession shall be
as a month-to-month tenant. During such holdover month-to-month tenancyTenant shall pay
rent atthe fair market rental value.
5. Insurance.The County shall keep in force insurance to provide for property
damage to the building for replacement cost purposes. Provided, however, Tenant shall be
responsible for and pay to County any increase in County's insurance premium occasioned by
the nature of the Tenant's business.
The Tenant shall maintain fire and casualty insurance covering the Tenant's fixtures,
equipment and other property located in the Leased Premises.
Tenant shall keep the Leased Premisesinsured, at its sole cost and expense,
against claims for personal injury or property damage under a policy of general public liability
insurance, with limits of at least $1,000,000 for bodily injury and $100,000 for property damage.
Such policies shall name the County as additional named insured under the policy.
Tenant shall additionally insure the Leased Premises, at its sole cost and expense,
against claims for personal injury or property damage under a food and/or beverage preparation
and/or distribution or other relevant liability insurance policy with appropriate limits for bodily
injury, sickness, or death. Such policy shall name the County as additional named insured
under the policy.
The Tenant shall provide the County certificates of such insurance at or prior to the
commencement of the term of this lease, and thereafter within ten (10) days prior to the
expiration of such policies. Such policies shall provide that the same may not be canceled
without at least ten (10) days prior written notice to County.
6. Rental Adjustment.In addition to the base rental, the Tenant shall assume
and pay any additional fire insurance premium, hazard insurance premium, or other extended
coverage insurance premium required as a result of any particular operation or use of said
premises over and above the insurance premium required to be paid by County in the absence
of said operation or use.
7. Signs. The Tenantwill place and maintain in and about the Leased Premises
at appropriately designated places, such neat and appropriate signs advertising the Tenant as
such. Any special Tenant sign will be at the sole cost of the tenant but in the same styling,
provided, however, that County shall not unreasonably withhold approval of such signs as
Tenant may desire. Upon the termination of this lease the Tenant shall remove all signs and
repair any damage to the Leased Premisescaused by the erection, maintenance or removal of
such signs.
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8.Repairs.The County shall maintain the roof and exterior walls of the Leased
Premisesincluding exterior paint, provided that in the event Tenant desires to alter the interior
color scheme, said alteration must be approved by County and shall be at the Tenant's
expense. In addition, County shall maintain the paved parking area and front entry to the
building. The Tenant shall not cause or permit any waste, damage or injury to the Leased
Premises. The Tenant, at its sole expense, shall keep the Leased Premisesclean and in good
condition (reasonable wear and tear excepted), and shall make all repairs, replacements and
renewals, whether ordinary or extraordinary, seen or unforeseen, including all structural
repairs, necessary to maintain the interior of the Leased Premises. All repairs, replacements
and renewals shall be at least equal in quality of materials and workmanship to that originally
existing in the Leased Premises. The County shall be responsible for repairs and maintenance
of the roof and outside walls and other external structural members, including the foundation of
the Leased Premises. The County shall be responsible for maintenance of the heating plant
and air-conditioning systems in such condition as existed at the commencement of this lease,
which County warrants to be in good working condition as of the date of this lease. The County
shall be responsible for the removal of snow (in a timely manner) from the parking lotand the
walkways. The County shallin no event be required to make any repair, alteration or
improvement to the interior of the Leased Premises. Any equipment replaced by the Tenant
shall belong to the Tenant, save equipment replaced in connection with Tenant's obligation to
maintain the premises in the same condition as exists at the commencement of this lease, and
all proceeds from the disposition thereof may be retained by the Tenant. The Tenant shall
indemnify the County against all costs, expenses, liabilities, losses, damages, suits, fines,
penalties, claims and demands including reasonable attorneys’fees, because of Tenant's failure
to comply with the foregoing. Maintenance of the paved parking area shall be defined as and
limited to maintaining and keeping the parking area in good condition.
9.Improvements. No substantial alteration, addition or improvement to the
Leased Premisesshall be made by the Tenant without the written consent of the County. Any
alteration, addition or improvement made by the Tenant after such consent shall have been
given and any fixtures permanently installed as part thereof, shall at the County's option,
become the property of the County upon expiration of or other sooner termination of this lease;
provided however, that the County shall have theright to require the Tenant to remove such
fixtures at the Tenant's cost upon such termination. This clause shall not preclude Tenant from
decorating the interior of the leased premises from time to time in Tenant's discretion.Tenant
shall not remove or alter any vegetation on the exterior of the Leased Premises without the prior
written approval of County.
10.Liens for Improvements by Tenant. The Tenant shall not permit any
mechanic's lien to be filed against the fee of the property by reason of work, labor, services or
materials supplied or claimed to have been supplied, whether prior or subsequent to the
commencement of the term hereof, to the Tenant or anyone holding the Leased Premises,
through or under the Tenant. If any such mechanic's lien shall at any time be filed against the
Leased Premises, the Tenant shall, within 30 days after notice of the filing thereof, cause such
lien to be discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction, or otherwise. If the Tenant shall fail to cause such lien to be discharged within such
30 day period, then, in addition to any other right or remedy of the County, the County may, but
shall not be obligated to, discharge such lien either by paying the amount claimed to be due or
by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such
event the County shall be entitled, if the County so elects, to compel the prosecution of an
action for the foreclosure of such mechanic's lien by the lienor and to pay the amount of the
judgment for and in favor of the lienor, with interest, costs and all other allowances. Any
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amount paid by the County for any such purposes, shall be repaid by the Tenant to the County
ondemand,with interest thereon at the rate of 6% per annum from the date of payment,and if
unpaid may be treated as additional rent as provided for elsewhere in this lease. Nothing in
this lease shall be construed in any way as constituting the consent or request of the County,
express or implied, by inference or otherwise, to any contractor, subcontractor, laborer or
materialmen for the performance of any labor or the furnishing of any materials for any property
or as giving the Tenant the right,power of authority to contract for or permit the rendering of
any service or the furnishing of any material that would give rise to the filing of any mechanic's
lien against the fee of the Leased Premises.
11.Tenant's Warranty of Non-Disturbance. Tenant herebyexpressly covenants
and agrees that the Tenant shall be responsible for controlling the noise level emanating from
the Tenant's use of the Leased Premises. Tenant shall be responsible for and pay for the
installation of any special padding forother noise suppression devices that may be required for
control of the level of sound emanating from the Leased Premises.
12. Tenant’s Obligation to Comply with Applicable Laws and Compliance with
Requirements of Insurance Policies. The Tenant shall throughout the term of this lease, at
its sole expense, promptly comply with all laws and regulations of all federal, state and
municipal governments and appropriate departments, commissions, boards and officers
thereof, and the orders and regulationsof the National Board of Fire Underwriters, or any other
body now or hereafter exercising similar function, which may be applicable to the Leased
Premises, the fixtures, and equipment therein, and the sidewalks and curbs adjoining the
Leased Premises.The Tenant shall comply with the requirements of all policies of public
liability, fire and all other types of insurance at any time in force with respect to the building and
other improvements on the Leased Premises.
13.Utilities.County currently pays approximately $8,460 annually for utilities
(electricity, gas, and water) and $564 for grounds care. Tenant and County agree and
acknowledge that the Tenant provides valuable services to the residents of Orange County
which services amount to an in-kind payment toward the costs of utilities and grounds care
equaling $752.00per month.
14.Condition of Premises. The Tenant shall, during the term of this lease and
any renewal or extension hereof, at its sole expense,cause the Leased Premisesto bekept
clean and in a manner satisfactory to the County.
15. Surrender in Same Good Order and Condition. The Tenant shall vacate
the Leased Premisesin the good order and repair in which such property now is, ordinary wear
and excepted, and shall remove all its property therefrom so that the County can repossess
the Leased Premisesno later than Noon on the day upon which this lease ends, whether upon
notice or by holdover or otherwise. The County shall have the same rights to enforce this
covenant by ejectment and for damages or otherwise as for the breach of any other condition or
covenant of this lease. Tenant may at any time prior to or upon the termination of this lease or
any renewal or extension thereof remove from the leased property all materials, equipment, and
property of every other sort or nature installed by the Tenant thereon, provided that such
property is removed without substantial injury to the leased property. No injury shall be
considered substantial if it is promptly corrected by restoration to the condition prior to the
installation of such property, if so requested by the County. Any such property not removed
shall become the property of the County.
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16. Prohibition Against Unlawful or Extra-hazardous Use-Enforcement Against
Subtenants.The Tenant may use and occupy the Leased Premisesfor adult day careand
officeuses and for no other purpose without the prior written consent of County. Tenant shall
not use or occupy nor permit the Leased Premisesor any part thereof to be used or occupied
for any unlawful business, use or purpose, nor for any business, use , or purpose deemed
extra-hazardous, nor for any purpose or in any manner which is in violation of any present or
future governmental laws or regulations. The Tenant shall promptly after the discovery of any
such unlawful or extra-hazardous use take all necessary steps, legal and equitable, to compel
the discontinuance of such use and to oust and remove any subtenants, occupants, or other
persons guiltyof such unlawful or extra-hazardous use. The Tenant shall indemnify the County
against all costs, expenses, liabilities, losses, damages, injunctions, suits, fines, penalties,
claims and demands, including reasonable counsel fees, arising out of any violation of or default
in these covenants.
17.County's Right to Cause Expirationor Terminationupon Listed Defaults
(a)The occurrence of any of the following shall constitute an event of default:
1. Delinquency in the punctual payment of any rent or additional rent payable
under this lease when such rent shall become payable. Should such rent payment not be made
when due then upon the expiration of five days after the due date, such rent payment shall be
delinquent.
2. Delinquency by the Tenant in the performance of or compliance with any
of the conditions contained in this lease other than those referred to in the foregoing
subparagraph 1, for a period of 30 days after written notice thereof from the County to the
Tenant. Intheevent, Tenant is incapable of curing the default within such thirty (30) day
period, the County may in its discretionextendthe time for as long as the County deems
necessary to cure such default. Provided, however, the Tenant shallpromptly and diligently
commence action to cure such defaultand provide County with evidence of Tenant’s intent to
cure the default. Any additional period of time beyond thirty (30) days granted to Tenant to cure
any defaultshall not be so extended as to jeopardize the interest of the County in this lease or
so as to subject the County to any civil or criminal liabilities.
3. Filing by the Tenant in any court pursuant to any statute, either of the
United States or any state, or a petition in bankruptcy or insolvency or for reorganization, or
for the appointment of a receiver or trustee of all or a portion of the Tenant's property, or an
assignment by the Tenant for the benefit of creditors.
4. Filing against the Tenant in any court pursuant to any statute, either of the
United States or of any state, of a petition in bankruptcy or insolvency, or for reorganization, or
for appointment of a receiver or trustee of all or a portion of the Tenant's property, if within 180
days after the commencement of any such proceeding against the Tenant such petition shall not
have been dismissed.
(b)Upon the expiration or termination of this lease, the Tenant shall peacefully
surrender the Leased Premisesto the County, and the County, upon or at any time after such
expiration or termination, Countymay, without further notice, reenter the Leased Premisesand
repossess it by force, summary proceedings, ejectment, or otherwise, and may dispossess the
Tenant and remove the Tenant and all other persons and property from the Leased Premises
and the right to receive all rental income therefrom.
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(c) At any time after such expiration, the County may re-let the Leased Premises
or any part thereof, in the name of the County or otherwise, for such term (which may be greater
or less than the period which would otherwise have constituted the balance of the term of this
lease) and on such conditions (which may include concessions or free rent) as the County, in its
uncontrolled discretion, may determine, and may collect and receive the rent thereof.
(d)No such expirationor terminationof this lease shall relieve the Tenant of its
liability or obligations under this lease, and such liability and obligations shall survive any such
expirationor termination. In the event of any such expirationor termination, whether or not the
Leased Premisesor any part any part thereof shall have been re-let, the Tenant shall pay to the
County the rent and additional rent required to be paid by the Tenant up to the time of such
expiration, and thereafter the Tenant, until the end of what would have been the term of this
lease in the absence of such expiration, shall be liable to the County for, and shall pay to the
County, as and for liquidated and agreed current damages for the Tenant's default:
1. The equivalent of the amount of the rent and additional rent which
would be payable under this lease by the Tenant if this lease were still in effect, less
2. The greater of:
(a) The fair rental value of the Leased Premisesfor the remaining term
of the lease,after deducting all the County's reasonable expenses in connection with such re-
letting, including, without limitation, all repossession costs, brokerage Commissions, legal
expenses, reasonable attorney's fees, alteration costs, and expenses of preparation for such re-
letting.
(b) The net proceeds of any re-letting effected pursuant to the
provisions of paragraph d. of this article, after deducting all the County's reasonable expenses
in connection with such re-letting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, reasonable attorney's fees, alteration costs, and
expenses of preparation for such re-letting.
(e)The Tenant shall pay such current damages (herein called "deficiency") to
the County monthly on the days on which the rent and additional rent would have been payable
under this lease if this lease were still in effect, and the County shall be entitled to recover from
the Tenant each monthly deficiency as such deficiency shall arise. At any time after any such
expiration, whether or not the County shall have collected any monthly deficiency, the County
shall be entitled to recover from the Tenant, and the Tenant shall pay to the County, on
demand, as and for liquidated and agreed final damages for the Tenant's default, an amount
equal to the difference between the rent and additional rent reserved hereunder for the expired
portion of the lease of the Leased Premisesfor the same period. In the computation of such
damages the difference between any installment of rent becoming due hereunder after the date
of termination and the fair and reasonable rental value of the Leased Premisesfor the period
for which such installment was payable shall be discontinued to the date of termination at the
rate of four percent per annum.
(f)The terms "enter", "reenter","entry", or "reentry" as used in this lease are not
restricted to their technical meaning.
18. Lien on Tenant's Improvements and Personal Property
.The County shall
have first lien paramount to all others on every right and interest of the Tenant in and to this
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lease, and on any building or improvement on or hereafter placed on the Leased Premises, and
on any furnishings, equipment, fixtures, or other personal property of any kind belonging to the
Tenant, or the equity of the Tenant therein, on the Leased Premises. Such lien is granted for
the purpose of covenanted to be paid by the Tenant, and for the purpose of securing the
performance of all of the Tenant's obligations under this lease. Such liens shall be in addition to
all rights of the County given under statutes of this state, which are now or shall hereinafter be
in effect. The provisions of this paragraph shall not be applicable to liens existing at the
commencement of this lease.
Provided, that County may, at his option, agree to subordinate this lien to liens
arising in connection with purchased of equipment or leasehold improvement financing by
Tenant, which agreement County covenants not to unreasonably withhold.
19. County's Right to Receiver upon Tenant's Default. In addition to any other
security for the performance of this lease, the Tenant hereby assigns to the County all of the
rents and profits which might otherwise accrue to the Tenant from the use, enjoyment, and
operation of the Leased Premises, such assignment to become effective, however, only after
default by the Tenant in the performance of its obligations under this lease. If the County, upon
default of the Tenant, elects to file a suit in equity to enforce the lease and protect the County's
right hereunder, the County may upon notice to the Tenant, as ancillary to such suit, apply to
any court having jurisdiction for the appointment of a receiver of the Leased Premises, the
improvements and buildings located thereon, the personal property located therein, and
thereupon the court may forthwith appoint a receiver with the usual powers and duties of
receivers in like cases. Such appointment shall be made by such court as a matter of strict
right to the County and without consideration of the adequacy of the value of the Tenant's
interest in the lease, or of the value of the property, or the commission of waste thereon, or the
deterioration thereof. Nothing herein shall prevent the enforcement of the County's lien for rent
in any court or by proceeding authorized to the laws of this state, or the institution by the County
of a separate proceeding in equity for the appointment of a receiver as an ancillary remedy to
protect the rights and interest of the County. Any and all remedies or proceedings are
considered cumulative and not exclusive.
20.Waiver of County's Rights Only by Written Instrument. No failure by the
County to insist upon the strict performance of any item or condition of this lease or to exercise
any right or remedy available on a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach shall constitute a waiver of any breach or of any
such term or condition.No term or condition of this lease required to be performed by the
Tenant, and no breach thereof, shall be waived, altered or modified, except by a written
instrument executed by the County. No waiver of any breach shall affect or alter any term or
condition in this lease, and each such term or condition shall continue in full force and effect
with respect to any other then existing or subsequent breach thereof.
21. Performance of Tenant's Obligations - Unpaid Insurance Premiums
(a)If the Tenant shall at any time fail to pay any amount in accordance with the
provisions of this lease, or shall fail to take out, keep in force, or shall fail to perform any of its
other obligations under this lease, then the County may after notice and opportunity to cure in
accordance with the provisions of Section 17(a)2, or without notice if any emergency exists, and
without releasing the Tenant from any obligation of the Tenant contained in this lease, may (but
shall be under no obligation to) pay any amount payable by the Tenant hereunder, and
perform any other act required to be performed by the Tenant hereunder. The County may
enter upon the Leased Premisesfor such purposes and take any action necessary therefore.
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(b) All sums so paid by the County andall costs and expenses incurred by the
County in connection with the performance of any such act, together with interest thereon at the
rate of 6% per annum from therespective dates of each such payment and such costs and
expenses, shall constitute additional rent payable by the Tenant under this lease and shall be
paid by the Tenant to the County on demand.
(c) Notwithstanding anything in this lease to the contrary, the County shall not be
limited, in the proof any damages which the County may claim against the Tenant by reason of
the Tenant's failure to provide and keep insurance in force, to the amount of the insurance
premiums not paid or incurred by the Tenant. The County shall also be entitled to recover as
damages for such breach the uninsured amount of any loss, together with damages, costs, and
expenses of any suit offered or incurred by reason of damage to the Leased Premisesoccurring
during any period when the Tenant shall have failed to provide and keep such insurance in
force.
22. Performance of Tenant's Obligations-Taxes. If the Tenant shall default in the
performance of any obligation under this lease, the County may, after notice and opportunity to
cure in accordance with Section 17(a)2or without notice if any emergencyexists,perform such
obligation for the account and at the expense (including reasonable counsel fees) of the Tenant.
The amount of any payment made or expense incurred by the County for such purpose, with
interest thereon at the rate of 6% per annum, shall be deemed additional rent and forthwith
shall be repaid by the Tenant to the County, or, at the County's election, may be added to any
subsequent installment of rent due and payable under this lease. Nothing herein contained
shall be deemed to waive anyright of the County to sue for and recover by action at law any
sums of which the County may have incurred under the provisions of this subparagraph. The
provisions of this paragraph shall survive the termination of this lease.
23. Right of Entry. The County or its agent shall with twenty-four (24) hours
notice have the right to enter the Leased Premisesat reasonable times in order to examine it, to
show it to prospective purchasers or lessees, or to make such decorations, repairs, alterations,
improvements or additions as the County may deem necessary or desirable. The County shall
be allowed to take all material into and upon the Leased Premisesthat may be required
therefore without the same constituting an eviction of the Tenant in whole or in part. The rent
reserved shall not abate while decorations, repairs, alterations, improvements, or additions are
being made, whether by reason of loss or interruption of the business of the Tenant or
otherwise. During the last month prior to the expiration of the term of this lease, the County
may place upon the Leased Premisesthe usual notices "To Let" or "For Sale", which notices
the Tenant shall permit to remain thereon without molestation. If during the last month of the
term the Tenant shall have removed all or substantially all of the Tenant's property therefrom,
the County may, with the Tenant's permission, immediately enter and later, renovate and
redecorate the Leased Premiseswithout elimination of abatement of rent and without liability to
the Tenant for any compensation, and such acts shall have no effect upon this lease. If the
Tenant or its employees shall not be personally present to permit entry at any time when an
entry therein shall be immediately necessary, as herein provided, the County may enter the
premises by such means as may be appropriate, including forcible entry, without rendering the
County or such agents liable therefore (if during such entry the County or his agents shall
accord reasonable care to the Tenant's property), and without in any manner affecting the
obligations and covenants of this lease. The County's right of reentry shall not be deemed to
impose upon the County any obligation, responsibility or liability for the care, supervision or
repair of the LeasedPremisesother than as herein provided. In the event that it becomes
necessary for County to replace or repair any major component or any structural or other
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system in the leased premises, the County shall have full and unrestricted access to the building
and the Leased Premises. The County reserves the right temporarily to interrupt, curtail, stop
or suspend air-conditioning and heating service, and all other utility or other services, because
of accident or emergency or for repairs, alterations, additions, or improvements, or because of
the County's inability to obtain, or difficulty or delay in obtaining, labor or materials necessary
therefore or compliance with governmental restrictions in connection therewith, or because of
any other cause beyond the County's reasonable control, provided that, except in cases of
emergency, the County will use its best efforts to limit such stoppage to after-business hours,
will notify the Tenant in advance, if possible, of any such stoppage, and, if ascertainable, its
estimated duration, and will proceed diligently with the work necessary to resume such service
as promptly as possible and in a manner and at times as will not materially interfere with or
impair the Tenant's use of the Leased Premises.No diminution or abatement of fixed rent or
other compensation shall be claimed by the Tenant, nor shall this lease or any of the
obligations of the Tenant hereunder be affected or reduced by reason of such interruption,
stoppage, or curtailment, nor shall the same give rise to a claim in the Tenant's favor that such
failure constitutes total or partial eviction from the Leased Premises, provided that if the
Leased Premisesshall be unreasonably unoccupiable for a continuous period of more than five
business days by reason of any such stoppage, the fixed rent payable by the Tenant shall
abate until the Tenant shall be again able to use the Leased Premises.
24. Destruction by Fire or Other Casualty. In the event thepremises or any
substantial portion thereof are destroyed by fire or other casualty during the term of this lease,
it is understood and agreed that County shall have no obligation to rebuild, and, at the election
of County or Tenant the lease may beterminated
.
25. Condemnation.If the whole of the Leased Premises, or such portion thereof
as will make the Leased Premisesunsuitable for the purposes herein leased, is condemned for
any public use or purpose by any legally constituted authority, thenin either of such events this
lease shall cease from the time when possession is taken by such public authority and rental
shall be accounted for between the County and the Tenant as of the date of the surrender of
possession. Such termination shall be without prejudice to the rights of either the County or the
Tenant to recover compensation from the condemning authority for any loss or damage caused
by such condemnation. Neither the County nor the Tenant shall have any rights in or to any
award made to the other by the condemning authority.
26. Assignment of Lease. The Tenant shall not assign, mortgage, or encumber
this lease, nor sublet or permit the Leased Premisesor any part thereof to be used by others,
save and except direct clients of Tenant with whom Tenant has contractual agreements, without
the prior written consent of the County in each instance. If this lease is assigned, or if the
Leased Premisesor any part thereof, is sublet, or occupied by anybody other than the Tenant
except as stated above, the County may, after an event of default, as hereinabove defined, by
the Tenant, collect rent for the assignee, subtenant, or occupant and apply the net amount
collected to the rent herein reserved. No such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of this assignee, subtenant, or
occupant as tenant, or a release of covenants in this lease. The consent by the County to an
assignment or subletting shall not be construedto relieve the Tenant from obtaining the
consent in writing of the County to any further assignment or subletting. Provided, further,
County shall not unreasonably withhold consent to assignment.
27. Assignment of Interest in Rents. The County shall have the right,
without selling its fee interest in the leased property or assigning its interest in this lease, to
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assign from time to time the whole of the net rent at any time payable hereunder to persons,
firms, corporations, trusts or other entities designated by the County in a written notice to the
Tenant, and in any such case the Tenant shall pay the net rent, subject to the terms of this
lease, to the County's designee at the address mentioned in any such notice for the period
covered by such assignment.
28. Exoneration from Liability. The County shall not be liable for any personal
injury to the Tenant or to its officers, agents and employees, or to any other occupant of any
part of the Leased Premises, irrespective of how such injury or damage may be caused,
whether from action of the elements or acts of negligence of the occupants of adjacent
properties, or any other persons; provided that nothing contained herein shall relieve the
County of the consequences of his own negligence.The Tenantagrees to defend, indemnify
and hold harmless the County from all loss, liability, claims or expense, including attorney's
fees, arising out of or related to the Tenant’s lease, use, sublease, or occupation of the facility
and arising from bodily injury including death or property damage to any person or persons
caused in whole or in part by the negligence or misconduct of the Tenantexcept to the extent
same are caused by the negligence or willful misconduct of the County. It is the intent of this
provision to require the Tenantto indemnify the County to the fullest extent permitted under
North Carolina law.
29. Reimbursement of Expenses. The Tenant shall pay and indemnify the County
against all legal costs and charges, including counsel fees lawfully and reasonably incurred, in
obtaining possession of the leased premises after default of the Tenant or after the Tenant's
default in surrendering possession upon the expiration or earlier termination of the term of the
lease or enforcing any covenant of the Tenant herein contained. The Tenant further covenants
that in case the County shall be made party to any litigation commenced against the Tenant,
due to act or omission on the part of the Tenant alone, then the Tenant shall pay all expenses,
costs, and reasonable attorney's fees incurred by or imposed on the County in connection with
such litigation, and such expenses, costs, and attorney's fees shall be additional rent due on
the last day after services of notice of such payment or payments, together with interest at a
rate of 9% per annum from the date of payment, and shall be collected as any other rent
specifically reserved herein. Provided that this claim shall not be applicable where the County
shall be made a party by reason of any independent liability of the County caused by some act
or omission on the part of the County or resulting from any act or omission on the part of both
Tenant and County.
30. Smoke Free Facility. Tenant acknowledges that County-owned buildings are
smoke-free. Tenant shall ensure that employees, customers or invitees of the Tenant abide by
the County’s ordinances, which prohibit smoking.
31. Weapons Prohibited. Tenant acknowledges that a County ordinance has been
approved by the Board of Commissioners that prohibits weapons in County facilities, except in
limited situations Tenant will ensure that employees, customers or invitees of the Tenant abide
by the County’s ordinance that prohibits weapons in the facility.
32Notice by Registered or Certified Mail. Any notice under this lease must be in
writing and must be sent by registered or certified mail to the last address of the party to whom
the notice is to be given, as designated by such party in writing. The County hereby designates
its address as:
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County of Orange
Attn: County Manager
200 South Cameron Street
PO Box 8181
Hillsborough, NC 27278
The Tenant hereby designates its address as:
Senior Care of Orange County, Inc.
Attn: ExecutiveDirector
103 Meadowlands Drive
Hillsborough, NC 27278
33. Grammatical Usage. In construing this lease, feminine or neuter pronouns
shall be substituted for those masculine in form and vice versa, and plural terms shall be
substituted for singular and singular for plural in any place in which the context so requires.
34.Entire Agreement. This lease contains the entire agreement between the
parties, and any executory agreement hereafter made shall be ineffective to change, modify, or
discharge it in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification or discharge is sought.
IN TESTIMONY WHEREOF, the parties have hereunto set their hands and seals the
day and year first above written.
[SIGNATURE PAGE TO FOLLOW]
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COUNTY
: ATTEST:
BY:__________________________ __________________________________
BernadettePelissier, Chair Donna S. Baker, Clerk to the Board
TENANT
: WITNESS:
____________________________ __________________________________
Senior Care of Orange County, Inc.
STATE OF NORTH CAROLINA
ORANGE COUNTY
I, ______________________________, a Notary Public for said County and State, do hereby
certify that Donna S. Baker personally appeared before me this date and acknowledged that
she is the Clerk to the Board of Commissioners of Orange County, and that by authority duly
given and as the act of Orange County, the foregoing instrument was signed in its name by
Bernadette Pelissier, Chair, sealed with its official seal, and attested by herself as its Clerk.
Witness my hand and official seal, this the _____ day of ____________________, 2012
______________________________
Notary Public
My Commission expires:___________________
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
I, _________________, a Notary Public, do hereby certify that , personally
appeared before me this day and acknowledged the due execution of the foregoing Lease
Agreement.
WITNESS my hand and official seal this the ____________day of ______________, 2012.
______________________________
Notary Public
My commission expires: _____________________
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