HomeMy WebLinkAboutAgenda - 02-19-2013 - 6bORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: February 19, 2013
Action Agenda
Item No. 6 -b
SUBJECT: Lease of the County -owned Building at 500 Valley Forge Road to the Piedmont
Food and Agricultural Processing Center, Inc.
DEPARTMENT: County Manager PUBLIC HEARING: (Y /N) Yes
County Attorney
ATTACHMENT(S):
Lease Agreement
Exhibit A Attachment to Lease
Agreement
INFORMATION CONTACT:
Frank Clifton, 245 -2300
John Roberts, 245 -2318
PURPOSE: To conduct a statutorily required public hearing and consider entering into a lease
agreement with the Piedmont Food and Agricultural Processing Center, Inc. regarding the
occupation and lease of the building at 500 Valley Forge Road, Hillsborough.
BACKGROUND: In 2011 the Piedmont Food and Agricultural Processing Center ( "PFAPC ")
began operations as a County entity, part of the Economic Development Department. The
initial intent was for the PFAPC to be a standalone nonprofit entity. For various reasons the
PFAPC was not initially incorporated as a nonprofit entity. Operations were and remain housed
in the County -owned building at 500 Valley Forge Road.
In July 2012 the PFAPC was registered with the North Carolina Secretary of State as a
nonprofit entity. Operations are ongoing and to date the PFAPC has experienced substantial
growth and success in its current location. The County and PFAPC desire to have operations
remain in the 500 Valley Forge Road location. Because PFAPC is no longer a County entity,
the County and PFAPC must enter into a lease of the premises to establish the rights and
responsibilities of each party.
The term of the lease is five years with two optional five year renewals. The County's goal is to
assist PFAPC in becoming a self- sustaining nonprofit organization and for that reason a
discounted lease rate has been negotiated. The fair market rental rate will not be charged until
the final year of the lease term.
North Carolina General Statute 160A -272 authorizes a County to enter into leases of up to 10
years upon resolution of the Board of Commissioners adopted at a regular meeting after 10
days' public notice.
FINANCIAL IMPACT: PFAPC will pay the County:
• the sum of one dollar ($1) per month for the first two (2) years of the lease term;
• a sum equal to thirty -three percent (33 %) of the fair rental value for the third year of the
term commencing on January 2, 2015;
• a sum equal to sixty -six percent (66 %) of the fair rental value including the annual
percentage increase for the fourth year of the term commencing on January 2, 2016; and
• the fair rental value including the annual percentage increase for the fifth year of the term
commencing on January 2, 2017.
RECOMMENDATION(S): The Manager recommends the Board open the public hearing,
receive public comments, close the public hearing, approve the Lease Agreement, authorize the
Vice -Chair to execute the Lease Agreement, and authorize staff to record and file any
necessary documentation.
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Prepared by: John L. Roberts, P.O. Box 8181 Hillsborough, NC 27278
9874 -31 -5787 Return after recording to John L. Roberts
STATE OF NORTH CAROLINA
COUNTY OF ORANGE LEASE
THIS LEASE, made and entered into as of the , by and between
Orange County, a political subdivision of the State of North Carolina, hereinafter referred
to as "County," and the Piedmont Food and Agriculture Processing Center Corporation.,
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 500 Valley Forge Road,
Hillsborough, Orange County, North Carolina, and having PIN 9874315787 (the "Leased
Premises ").
2. Acceptance of Premises. The Tenant represents that the Leased Premises
including the fixtures, furniture and equipment ( "FFE ") installed on the premises and
listed on Exhibit A attached hereto and incorporated herein, the sidewalks and structures
adjoining the Leased Premises, 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 or by law, by the County, the nature, condition or usability thereof, or the
uses to which the Leased Premises including the FFE installed on the Leases Premises
may be put. Provided, County shall be responsible for ensuring that the heatinglair-
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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 wan-ants to Tenant that it holds
unencumbered fee title to the Leased Premises. The County shall not be responsible for
any latent defect or change of condition in such building, improvements, FFE and
IR 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 Premises is a smoke free building and does not permit
tobacco use inside of the building.
3. Term and Rental.
(a) This lease shall commence on January 2, 2013, and shall end on January
I , 2018, unless sooner terminated as herein provided.
(b) County and Tenant acknowledge the fair rental value of the Leased
Premises notwithstanding the rent listed in Section 3(c)(O is estimated at $2,166.67 per
month ($26,000 per annum). The fair rental value shall be subject to a two percent (2"/o)
annual percentage increase. It is acknowledged by Tenant this annual increase for the
initial term of this lease is below the average market rate annual increase of five percent
(5 %) and any renewal or extension of this lease will reflect the fair rental value at the
time of the renewal or extension. In any such renewal or extension the fair rental value,
as it is determined at the time of the renewal or extension, shall be subject to a five
percent (5 %) annual percentage increase.
(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
following amounts as rent for the Leased Premises:
i} sum of one dollar ($1) per month for the first two (2) years of the
term;
ii) a sum equal to thirty -three percent (33 %) of the fair rental value for
the third year of the term commencing on January 2, 2015;
iii) a sum equal to sixty -six percent (6b %) of the fair rental value
including the annual percentage increase for the fourth year of the
term commencing on January 2, 2016;
iv) the fair rental value including the annual percentage increase for the
fifth year of the term commencing on January 2, 201710
(d) Rent shall be due and payable on or before the fifth day of each month.
Tenant acknowledges this rental rate is discounted for a portion of the term in an effort to
assist Tenant in providing a public benefit that being regional food and agricultural
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processing services and that any renewal of this Lease shall be subject to an increased
rental rate as determined by County.
(e) The extension of time for the payment of any installment of rent, or the
acceptance by the County of any money other than of the kind herein specified, shall not
be a waiver of the right of the County to insist on having all other payments of rent made
in the manner and at the time herein specified.
(f) If any installment of rent is not received by the fifth (5th) day of any
month it is due, Tenant shall pay as additional rent a late payment fee of Fifty Dollars
($50.04). This additional rent shall be due immediately without demand therefor and
shall be added to and paid as a part of the installment payment of rent with respect to
which it is incurred.
(g) This Lease may be renewed with the consent of the County for up to two
additional five -year terms upon written notice to the County sixty (60) days prior to the
expiration of the term.
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 month -to -month tenancy, rent shall be
the rent is effect during the last month of the term immediately preceding plus an
additiona150 %.
5. Insurance and Taxes.
(a) The County shall keep in force insurance to provide for property
damage to the building and any County-owned fixtures for
replacement cost purposes. County and Tenant agree to, as soon
as reasonably possible, develop a listing of all County-owned
fixtures and personal property. Fixtures and personal property
owned by the County consist of all fixtures and personal property
purchased with grant funds.
(b) The Tenant shall maintain fire and casualty insurance covering
the Tenant's FFE, equipment and other property located in the
Leased Premises.
(c) Tenant shall keep the Leased Premises insured, 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.
(d) 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
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appropriate limits for bodily injury, sickness, or death. Such
policy shall name the County as additional named insured under
the policy.
(e) 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.
(f) Tenant shall pay all property taxes, if and when they become due.
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 inswance 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.
7-0 . The Tenant will 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 any such signs will comply with all applicable
ordinances, laws, and regulations. Upon the termination of this lease the Tenant shall
remove all signs and repair any damage to the Leased Premises caused by the erection,
maintenance or removal of such signs,
8. Repairs.
(a) The County shall maintain the roof and exterior walls of the demised
property including 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.
(b) The Tenant shall not cause or permit any waste, damage or injury to
the Leased Premises.
(c) The Tenant, at its sole expense, shall keep the Leased Premises clean
and in goad condition (reasonable wear and tear excepted), and shall
make all repairs, replacements and renewals, whether ordinary or
extraordinary, seen or unforeseen, including all interior upfit,
necessary to maintain the interior of the Leased Premises, except all
casualties not covered by insurance.
(d) All repairs, replacements and renewals shall be at least equal in
quality of materials and workmanship to that originally existing in
the Leased Premises.
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(e) 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.
(f) 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.
(g) County shall not be responsible for maintenance, repair, or
replacement of refrigeration and/or freezer systems inside or outside
the Leased Premises.
(h) County shall maintain the paved parking area and front entry to the
building and shall be responsible for the removal of snow (in a
timely manner) from the parking lot and the walkways. Tenant shall
be responsible for all other maintenance and repair of the parking lot
and walkways. Maintenance of the paved parking area shall be
defined as and limited to maintaining and keeping the parking area
in good condition. Paved parking areas is defined as all concrete
surfaces on the exterior of the building, including but limited to,
loading dock, sidewalks, handicap parking pads, and garbage corral.
(i) The County shall in no event be required to make any repair,
alteration or improvement to the interior of the Leased Premises.
(j) 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.
{k} 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.
9. Fixtures, furniture and equipment CFFEI) and I ovements. No
substantial alteration, addition or improvement to the Leased Premises shall 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 FFE
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 the right to require the Tenant to remove such FFE at
the Ten '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.
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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 amount paid by the County for any such purposes, shall be repaid by the Tenant to
the County on demand, 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
famishing 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 hereby expressly
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 for other noise suppression devices
that may be required for control of the level of sound emanating from the Leased
Premises. Tenant shall comply with all applicable noise and/or nuisance ordinances,
laws, or regulations. It is not the intent of this paragraph to regulate noise within interior
of 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, which may be applicable to the Leased Premises, the FFE, 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
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any time in force with respect to the building and other improvements on the Leased
Premises.
13. Utilities. Tenant shall transfer all utilities to its name January 2, 2013. The
Tenant shall pay charges for gas, electricity, light and power, and water used, rendered or
supplied upon or ia connection with the Leased Premises.
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 Premises to be
kept clean and in a manner consistent with all applicable food industry and state and
federal public health standards.
15. Surrender in Same Goad Order and Condition. The Tenant shall
vacate the Leased Premises in 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 Premises no 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.
16. Prohibition Against Unlawful or Extrahazardous Use - Enforcement
Against Subtenants. The Tenant may use and occupy the Leased Premises for food and
agricultural services and office uses and for no other. Tenant shall not use or occupy nor
permit the Leased Premises or any part thereof to be used or occupied for any unlawful
business, use or purpose, nor for any business, use , or purpose deemed extrahazardous,
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 extrahazardous 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 guilty of such unlawful or extrahazardous 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. Coun s Ri ht to Cause Expiration or Termination upon Listed Defaults.
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(a) The occurrence of any of the following shall constitute an event of
default:
i) 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.
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 thirty
(30) days after written notice thereof from the County to the Tenant.
In the event, Tenant is incapable of curing the default within such
thirty {30} day period, the County may in its discretion extend the
time for as long as the County deems necessary to cure such default.
Provided, however, the Tenant shall promptly and diligently
commence action to cure such default and 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
default shall 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.
iii} 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.
iv) 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.
v) Failure to comply with Federal and/ or state lags, or engaging in
activities resulting in the loss or revocation of the Tenant's section
501 (c)(3) tax exempt status.
(b) Upon the expiration or termination of this lease, the Tenant shall
peacefully surrender the Leased Premises to the County, and the County, upon or at any
time after such expiration or termination, County may, without further notice, reenter the
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Leased Premises and 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.
(c) At any time after such expiration, the County may relet the Leased
Premises or any part thereof, in the name of the County or otherwise, for such tens
(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 expiration or termination of this lease shall relieve the Tenant of
its liability or obligations under this lease, and such liability and obligations shall survive
any such expiration or termination. In the event of any such expiration or termination,
whether or not the Leased Premises or any part any part thereof shall have been relet, 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:
i) 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
ii) The lesser of:
1. The fair rental value of the Leased Premises for the remaining
term of the lease, after deducting all the County's reasonable
expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage Commissions, legal
expenses, reasonable attorney's fees, alteration costs, and
expenses of preparation for such reletting.
2. The net proceeds of any reletting effected pursuant to the
provisions of paragraph d. of this article, after deducting all the
County's reasonable expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorney's fees,
alteration costs, and expenses of preparation for such reletting.
(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
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0 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 Premises for 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 Premises for 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", Open try", 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 lease, and on any building or improvement on or hereafter placed on the Leased
Premises, and on any FFE, 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 eff ective,
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
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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 Premises
for such purposes and take any action necessary therefore.
(b) All sums so paid by the County and all 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 the respective 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 Premises occurring during any period when the Tenant shall have
failed to provide and keep such insurance in force.
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22. Performance of Tenant's Obligations - Costs. 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) (2) or without notice if any
emergency exists, 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
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ncurred 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
any right 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 Entrv. The County or its agent shall within twenty-four (24)
hours notice have the right to enter the Leased Premises at reasonable tunes 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
Premises that 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 Premises
the 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
Premises without 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 Leased Premises other 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 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
12 '
15
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
Premises shall be unreasonably untenantable for a continuous period of more than four
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 the premises 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 be tenninated.
25. Condemnation. If the whole of the Leased Premises, or such portion
thereof as will make the Leased Premises unsuitable for the purposes herein leased, is
condemned for any public use or purpose by any legally constituted authority, then in
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 Premises or 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 Premises or 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
13
16
release of covenants in this lease. The consent by the County to an assignment or
subletting shall not be construed to 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. It is not the intent of this
paragraph to include user agreements as subleases or assignments of the Lease. County
acknowledges that as part of Tenant's day -to -day operations Tenant shall license users to
utilize the facilities situated at the Leased Premises.
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 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 l 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
Tenant agrees 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 Tenant except to the extent same are caused by the
negligence or willful misconduct of the County. It is the intent of this paragraph to
require the Tenant to indemnify the County to the fiillest 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
14 iF
17
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 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
buildings. Should Tenant become aware of any individual possessing a weapon on the
Leased Premises Tenant shall report same to the appropriate law enforcement agency.
County shall provide a sign at the primary point of entry indicating weapons are not
permitted to be carried inside the building.
32. Notice 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:
County of Orange
Attn: County Manager
200 South Cameron Street
PO Box 8181
Hillsborough, NC 27278
The Tenant hereby designates its address as:
PFAPC
Attn: Executive Director
500 Valley Forge Road
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.
15
4 )_\
18
34. cQ400te0"T'„.„0,4,rt005., This lease may be executed in counterparts each of 'which„
shall, be deemed to be an original and all of which taken together shal,„1 constitute one and
the same lease and shall 0"'',.."....0,ecorrie effctive when one or mom of the canterparts have
been signed by each of t„he Parties and delivered to the other Party.
35. :Dis-0,0,00"13te 'Resolution. Any an„d all suits or ,:„. ction...s to enforce, interpret or
see.,,,,,',,. damages with res:;00ect. to any provision. of this lease shall be brought in the General
Couji„ of Justice of'North Carolina sitting in Orange County, North Carolina. It is agreed„
by the Parties that no other court shall have jurisdiction or venue with 'respect to such
suits or actions. The 'Parties may agree I. nonbin,,,Aing ,100,0ftediation o',,i.,,: any dispute prior to
the 'bringing of such suit or action.
36. ',Entire „Atre0pulent. 'FIL„:„is lease contains the entire agreement between the
arties„ and any executory agreement ,'hereafter :mac e shall he ineffective to chante,
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 ,,',Iiischarge is sought.
IN TESTIMONY 'Wtl.„'„(EE.::.•:.,„..EOF„ the parties have,. hereunto set their hands and
seals the day an,d year '1„irst. above 'written..
COUNTY: A„TTEST:
BY
Earl „McKee, Vice-Chair Donna S. ',1';..0„."'..aker, Clerk to the „:„.toard
„:„..
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STATE OF NORTH CAROLINA
ORANGE CGUNTY
'Wifties ol
,s. my hand and' cial seal, this, the day, of 2 0 1. 3
Notary,pubite
19
1, Jeremy Todd,, Brownzir,, ii,'Notary P'Liblic for Durha,'M, County, Noirtli Carolina,
do hereby certify that Barry, Jacobs, per'Sonally appeared befbre i-ie th"s day and
acknowledged the due executi, on, Gftlie lbrepingLea-se Agreetnelit.
pry, 2013
'WITN ESS my hand and, o cal, seal thi's -the 5 dayof FebI
Nb'tary''Publi'c
My colimuission, iexp,ires: February 5, 20 lit
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17
EXHIBITA
Item Description
Model
Serial #
Orange
County
Fixed
Asset
Tag
$
Location
Refrigerator
TRAULSON G2000
T162108E11
$3,391
Wet Kitchen
Slicer
ANVIL SLR7912 /N
6149
$150
Wet Kitchen
Sealing stand
PFS 600
None
$650
Wet Kitchen
Drain pan
custom fabrication
None
$500
Wet Kitchen
Drain pan
custom fabrication
None
$500
Wet Kitchen
Range
VULCAN V61336S34
481694221
$4,500
Wet Kitchen
Convection oven
SOUTHBEND SLGS /22SC
11E25187
2464
$6,519
Wet Kitchen
Fryer
FMPH217- 4BLCSC
0311NJO075
$300
Wet Kitchen
Bottle filler
SIMPLEX VS -1
8448
2429
$25,504
Wet Kitchen
Table, 30" x 96"
EAGLE T3096SB
1107230165
$428
Wet Kitchen
Table, 30" x 96"
EAGLE T3096SB
1012231795
$428
Wet Kitchen
Table, 30" x 72"
EAGLE T3072SB
1107232031
$342
Wet Kitchen
Refrigerator
TRAULSON G2000
T162447
$3,391
Dry Kitchen
Range
VULCAN V61336S34
481694221
$4,500
Dry Kitchen
Convection oven
SOUTHBEND SLGS /22SC
11E25185
2463
$6,519
Dry Kitchen
Table, 30" x 96"
EAGLE YUT3090- 0002 -00
1103231872
$428
Dry Kitchen
Table, 30" x 72"
EAGLE T3060SB
1107231483
$314
Dry Kitchen
Mixer
Varimixer W20
1119050003
$500
Dry Kitchen
Food Processor
ROBOCOUPE CL52 SERIES D
31701135 03E -03
$3,692
Dry Kitchen
Table, 30" x 96" maple -top
EAGLE MT3096ST
None
$626
Dry Kitchen
Table, 30" x 72" maple scaling
EAGLE MT3072ST -BS
None
$860
Dry Kitchen
Table, 30" x 60"
EAGLE T3060SB
1107231944
$314
Mixed Use
Table, 30" x 60"
EAGLE T3060SB
1107231945
$314
Mixed Use
Shrink tunnel
T64SS
T11090 -D1
2424
$12,900
Mixed Use
Vacum chamber sealer
MPBS VFDC -860
P11040710
2426
$22,597
Mixed Use
Dehydrator
I EXCALIBUR PROFESSIONAL
6275
2425
$14,825
Produce
20
EXHIBITA
Produce washer round table
32 -4 Soft Packing Line (8054 11 -11, 7945 11-
11, 7932 10-11,9933 11 -11, 7944 11 -11,
799611-11)
RTE32, PMAC1048,
SUB32, SUB32,
PMAC1048M13,
RBC32
$8,150
Produce
Fruit Grinder & Juice press
EG 260 / X1 -PRESS
21929 -2
$30,452
Produce
Tilting kettle
CLEVELAND KGL60 -T
110523057542
2428
$22,967
Wet Kitchen
Pallet jack, hand hydraulic
5LA79
$343
Dock
Rack, rolling
PR20 -3K
$200
Rear Hall
Braising pan
VULCAN VG30
463002262
2425
$13,500
Wet Kitchen
Label applicator
CYLI SIZE LABO1
$1,034
Client Office
Food processor
ROBOCOUPE CL50 SERIES E
4500167 03E -04
$2,410
Wet Kitchen
Ice machine
HOSHIZAKI KM- 600MAH
A01677D
$4,150
Produce
Microwave
AMANA RMS10TS 1000 COMMERCIAL
1107411161
$300
Wet Kitchen
Computer
LENOVO CS00046452 CS01092312
$1,059
Client Office
Surveillance system, 16 cam
ZMODA
$853
Director Office
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206746
$185
Dry Kitchen
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206747
$185
Dry Kitchen
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206748
$185
Restroom Hall
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206749
$185
Client Resource
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206750
$185
Client Resource
Table, wood
$85
Conference
Mailbox unit
3 x 8 SLOT
$150
Client Office
Clock
TIMEX
$50
Client Office
Multifunction machine
BROTHER MFC
$600
Client Office
Cubbies
3 x (1 x 6)
$300
Restroom Hall
Chair, folding x 12
$720
Client Resource
File cabinet, lateral 3 drawer
$200
Client Resource
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206746
$185
Cooler
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206747
$185
Cooler
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206748
$185
Cooler
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206749
$185
Cooler
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206750
$185
Cooler
[Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206751
T
$185
Freezer
21
EXHIBITA
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206752
$185
Freezer
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206753
$185
Freezer
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206754
$185
Rear Hall
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206755
$185
Rear Hall
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206756
$185
Produce
Racks, antimicrobial
EAGLE 1848EC, P74EC, CSS4 -125, A206757
$185
Produce
Phone
PANASONIC KXTS4200
$150
Director Office
Cart
$100
Rear Hall
Cart
$100
Rear Hall
Trash cans, 6
$400
Hall
22