HomeMy WebLinkAboutAgenda - 06-18-2013 - 5t 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 18, 2013
Action Agenda
Item No. 5-t
SUBJECT: Land Lease for Orange County Jail
DEPARTMENT: County Manager, County PUBLIC HEARING: (Y/N) No
Attorney, Asset Management
Services
ATTACHMENT(S): INFORMATION CONTACT:
1) Council of State Approval Frank Clifton, 919-245-2306
2) Aerial Locator John Roberts, 919-245-2318
3) Strikethrough Version of Jail Jeff Thompson, 919-245-2658
Ground Lease Agreement
PURPOSE: To:
1) Enter into a fifty year Land lease Agreement with the State of North Carolina for an
estimated 8.53 acre parcel located near the existing Orange Corrections Facility at a rate
of $1 per year for the purpose of the development and construction of a County Jail
facility; and
2) Authorize the Chair, upon final approval of the County Attorney, to sign the Land Lease
Agreement on behalf of the Board of County Commissioners.
BACKGROUND: In October 2012, the North Carolina Council of State ("COS") approved a
Land Lease with Orange County for the purpose of a permanent Orange County jail facility.
Attachment 1, entitled "Council of State Approval", outlines the terms of the COS approval.
Attachment 2, "Aerial Locator' illustrates the location adjacent to the Orange Correctional Center
managed by the State. This arrangement provides adequate space for a facility that may
accommodate up to 250 inmates and allows the existing jail facility to be re-purposed for other
uses.
The North Carolina Department of Administration's Property Office has worked closely with
County staff, the North Carolina Department of Corrections, and the North Carolina Attorney
General's office to craft an acceptable Lease Agreement (Attachment 3, "Lease Agreement").
The consideration for the 50 year term of the Land Lease is $1.00 per year. The County will
provide for all development, design, construction and operations for the facility throughout the
term. At the end of the 50 year term, the County may choose to approach the Council of State
for a renewal of the Lease that is in the County's best interest.
The Lease contemplates the completion and operation of the facility in no more than 72 months
from the Effective Date of the Lease. The timeline for the development, construction, and
operation of the facility is as follows:
2
TASK PROPOSED END BY
BEGINNING DATE
DATE
Board of County Commission Action: 6/18/13 6/18/13
Approval of Lease Agreement between Orange County
and the State of North Carolina during regular meeting
agenda
Architect Selection via Request For Qualifications process 6/19/13 9/5/13
per State Purchasing Statute
Board of County Commission Action: Architect 9/5/13 9/5/13
Selection and Contract Award during regular meeting
agenda
Project programming, schematic design (est. 12 month 9/6/13 9/2014
duration
Board of County Commission Action: Approval of 9/2014 9/2014
Schematic Design, authorization to develop
construction documents, submit for regulatory review
and bid project
Project construction document preparation (est. 6 month 9/2014 3/2015
duration)
Regulatory review, permitting process, bid process (est.15 3/2015 9/2016
month duration)
Board of County Commission Action: Approval bid 9/2016 9/2016
award to construct project
Project Construction and Commissioning (est. 36 month 9/2016 9/2019
duration)
The County Attorney advises the Board that the lease contains numerous unfavorable
provisions the attorney would normally not recommend for Board approval including provisions
found in paragraphs 5, 6, 8, 14.4, 18.8, 22, and in particular 24.15. However, in this situation,
the Attorney General's office will not negotiate many of these provisions and the Manager
recommends approval as set out below.
FINANCIAL IMPACT: The Manager recommended Capital Investment Plan contemplated a
budget of $30 million for this project. FY2013-14 expenditures of $250,000 will accommodate
portions of the initial site programming and schematic design work, assuming that the Lease is
executed in July of 2013 and a designer is a selected by the Board in early fall 2013.
RECOMMENDATION(S): The Manager recommends the Board:
1) Enter into a fifty year Land lease Agreement with the State of North Carolina for an
estimated 8.53 acre parcel located near the existing Orange Corrections Facility at a rate
of $1 per year for the purpose of the development and construction of a County Jail
facility; and
2) Authorize the Chair, upon final approval of the County Attorney, to sign the Land Lease
Agreement on behalf of the Board of County Commissioners.
Attachment 1 3
North Carolina
Department of iistrtio
Beverly Eaves Perdue,Governor State Property Office
Moses Carey,Jr., Secretary
October 2, 2012
MEMORANDUM
TO: Bill Stovall
Public Safety
FROM: Speros J. Flegga
Deputy Secretary
RE: Council of State Approval
File No. 68-CH
This is to advise you that the Council of State, at its meeting held on the above date,
approved the attached item.
This matter will be referred to the Attorney General's Office at the appropriate time for
preparation of documents. In the meantime, if you have any questions regarding this
transaction, please contact Angela Blinson of this office.
AMB:tm
Attachment
Cc: Don Teeter
Jack Cooke
Mailing Address: Telephone(919)807-4650 Location:
1321 Mail Service Center Fax(919)733-1431 116 West Jones Street
Raleigh,N.C.27699-1321 State Courier#52-71-78 Raleigh,North Carolina
An Equal Opportunity/ Affirmative Action Employer
Web:http://www.doa.nc.gov/spo/
4
DISPOSITION BY LEASE
ITEM 2
LESSOR: State of NC, Department of Public Safety,
Division of Adult Correction
LESSEE: County of Orange
LOCATION: 2110 Clarence Walters Road, Hillsborough, Orange County
TERM: Fifty years effective October 1, 2012 or possession
AREA: ±6.8 acres
RENTAL: $1.00 for the term
COMMENTS: New Lease. Lease to allow the County of Orange to construct ajail facility adjacent to
Orange Correctional Center. This item was reported to the Joint Legislative Commission on
Governmental Operations.
Attachment 2 5
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6
Attachment 3
STATE OF NORTH CAROLINA
GROUND LEASE AGREEMENT
COUNTY OF ORANGE
THIS GROUND LEASE AGREEMENT("Lease"),made and entered into as of the last
date set forth in the notary acknowledgments below(the "Effective Date"), by and between the
STATE OF NORTH CAROLINA, a body politic and corporate hereinafter referred to as
"Lessor" and the � 4-Y nF2 OR A ;WRANGE COUNTY, a political subdivision of the Comment[gmtl]:Accepted.
State of North Carolina, hereinafter referred to as "Lessee." Lessor and Lessee are at times
collectively referred to hereinafter as the"Parties"or individually as the"Party."
WITNESSETH:
WHEREAS, the North Carolina Department of Public Safety, Division of Adult
Correction (the "DAC") has authorized and approved the execution of this Lease for the
purposes herein specified;and
WHEREAS, the execution of this Lease for and on behalf of Lessor has been duly
approved by the Governor and Council of State at a meeting held in the City of Raleigh,North
Carolina,on the 2nd day of October,2012;and
WHEREAS,the Parties have mutually agreed to the terms of this Lease as hereinafter set
forth.
NOW, THEREFORE, in consideration of the Premises, as described herein, and the
promises and covenants contained in the terms and conditions hereinafter set forth, Lessor does
hereby rent, lease and demise unto Lessee, for and during the term and under the terms and
conditions hereinafter set forth, that certain Premises, with all rights, privileges and
appurtenances thereto belonging.
THE TERMS AND CONDITIONS OF THIS LEASE ARE AS FOLLOWS:
1. Premises. The "Premises" shall consist of that certain parcel or tract of land lying and
being in the Town of Hillsborough, Orange County,North Carolina, containing 6.8 acres, more
or less, being more particularly shown and described on Exhibit A, attached hereto and
incorporated herein by this reference.
2. Term. The term of this Lease shall commence on the Effective Date, and unless sooner
terminated as provided herein, shall expire on the fiftieth(50th)anniversary of the Effective Date
at 2400 hours(the"Term").
3. Rent. Lessee shall pay to Lessor as rental for the Premises the sum of ONE DOLLAR
($1.00)for the Term.
Page I of 17
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4. Condition of Premises. Lessor agrees to deliver the Premises to Lessee in its present
condition. Except as otherwise expressly provided herein, Lessee acknowledges that the
Premises is being delivered "as is", that Lessee has performed preliminary investigations and
reviews and has concluded on its own judgment that the Premises are suitable for the purposes
intended, without any representations or warranties of any kind (including, without limitation,
any express or implied warranties of merchantability, fitness or habitability)from Lessor or any
agent of Lessor. Lessees's entry into possession shall constitute conclusive evidence that as of
the date thereof the Premises were in good order and satisfactory condition. Lessee further
acknowledges that this Lease is subordinate to all existing easements and rights of way
encumbering the Premises,including any easements benefiting adjacent land owned by Lessor.
5. Use of Premises and Leasehold Improvements. The Premises shall be used by Lessee for
the construction,maintenance and operation of a jail facility together with other accessories and
appurtenances related thereto,as said facility is more particularly described in Exhibit B attached
hereto and incorporated herein by this reference (said facility and all fixtures, accessories and
appurtenances constructed or installed on the Premises in connection therewith are collectively
referred to herein as the "Leasehold Improvements"). If Lessee ceases to use the Premises for
the purposes herein described or makes other uses of the Premises without the express written
consent of Lessor, Lessor may terminate this Lease and reenter and take possession of the
Premises Comment[gmt2]:Rejected.
6. Plan Approval. Prior to the commencement of any construction on the Premises, and
before any building materials have been delivered to the Premises by Lessee or under Lessee's
authority,Lessee shall provide the DAC and the State Construction Office("SCO"),a division of
the North Carolina Department of Administration, for their�eview such plans and Comment[gmt3]:Rejected. This is a standard
specifications for the construction of the Leasehold Improvements as said agencies my require. provision in state ground leases. The state may
inherit the Leasehold Improvements at the expiration
Review and approval of said construction plans and specifications by the DAC or SCO are solely of the Term or the earlier termination of the Lease
for Lessor's own purposes and should not be construed as warranting the appropriateness or and must have some say in the structures constructed
on the land. The level of approval will be at the
adequacy of the Leasehold Improvements for Lessee's intended use of the Premises or the determination ofDAC and SCO.
appropriateness or adequacy of any such plans or specifications for any other purpose. All plans
and specifications for the development of the Premises and construction of the Leasehold
Improvements, as modified or supplemented from time to time 6Ta th@.,,Fi#@r appfav l of °
DAC ,are collectively referred to herein as the"Approved Plans"and shall be attached Comment[gmt4]:Rejected.
hereto and incorporated herein as Exhibit C.
7. Construction of Leasehold Improvements. The Premises shall be developed and the
Leasehold Improvements shall be constructed by Lessee, at its sole cost and expense, in
compliance with all the applicable governmental laws and regulations. Lessee shall commence
construction of the Leasehold Improvements no later than Comment[gmt5]:Rejected,but see increase
thin six 6 months following the Effective Date. Construction of the Leasehold from 12 months to 24 months.
Improvements shall be deemed to have commenced when Lessee begins site grading or site Comment[L61:State agreed to 36 month not to
preparation. After construction of the Leasehold Improvements is commenced,the same shall be exceed start time.
prosecuted diligently, in a good and workmanlike manner and in accordance with the Approved
Plans. During the Term, Lessee shall have the right to replace, add to, alter or otherwise modify
the Leasehold Improvements; provided that any such substitution, addition, alteration or
modification shall receive the prior written approval of the DAC and SCO and shall be consistent
Page 2 of]7
8
with the Approved Plans.
8. Lessor's Right to Inspect. Lessor, through the T JHi er-sity a- d DAC and SCO, reserves
the right to inspect construction of the Leasehold Improvements while in progress to assn
'ns ect for onformity with the Approved Plans °ra m°° r°°°mm°ra ehan,° to fi]44h°4: M,, Comment[gmt7]:Rejected.
�. Lessor may also enter upon and inspect the Premises at any reasonable time during Comment[gmt8]:Rejected.
the Term for purposes of insuring Lessee's compliance with this Lease and for the additional
purpose of fulfilling its obligations. Such entry by Lessor shall not constitute an eviction of
Lessee or a deprivation of any right of Lessee and shall not alter the obligation of Lessee
hereunder or create any right in Lessee adverse to Lessor.
9. Completion. Construction of the Leasehold Improvements shall be completed and shall
be operational and occupied,pursuant to a certificate of occupancy or its equivalent,no later than
seven o 72-36 months following the Effective Comment[gmt9]:Rejected,but see increase
Date(the"Operational Deadline"). In the event the Leasehold Improvements are not completed from 24 months to 36 months.
by the Operational Deadline,the Parties may mutually agree to extend the Operational Deadline Comment[L10]:State agreed to 72 month no to
for no more than an additional six(6)months. If the Operational Deadline is not so extended or exceed finish time.
if the Leasehold Improvements are not completed as provided herein by any extension of the
Operational Deadline, Lessor may, in its sole discretion,terminate this Lease and shall have the
right of reentry upon the Premises for all purposes m4 e°e*fe C°etioH 2— (Comment[9mt11]:Rejected.
10. Maintenance and Repair. During the Term, Lessee, at its sole cost and expense, shall
maintain in thorough repair and in good and safe condition the Premises and the Leasehold
Improvements. Lessee's maintenance obligations shall include, without limitation, such
stormwater system(s) on the Premises as may be required by local or state ordinances and
regulations. Failure to maintain the Leasehold Improvements, including any stormwater
system(s),may result in termination of this Lease,at Lessor's option.
11. Utilities. Lessee shall be responsible for all charges, fees and expenses associated with
the provision of utilities necessary for its construction and use of the Leasehold Improvements
and for its occupancy and possession of the Premises.
Page 3 of]7
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12. Insurance and Liability.
12.1 Lessee Insurance. Lessee shall obtain adequate insurance coverage in accordance
with all applicable laws, if so required, for (i) general liability, (ii) workers' compensation,
(iii)automobile liability and (iv) fire and extended coverage with regard to the Lessee's
operations on or about Premises and the Leasehold Improvements located thereon. Lessee shall
require any of its contractors or agents entering the Premises to obtain and keep in place with
well rated insurers, authorized to do business in the State of North Carolina, adequate insurance
coverage, as applicable, for(i) statutory workers' compensation including, employers' liability;
(ii)comprehensive general liability including, personal injury, broad form property damage,
independent contractor, XCU (explosion, collapse, underground) and products/completed
operations; (iii) automobile liability; and (iv) fire and extended coverage insurance.
Notwithstanding the rights of any insurer, nothing herein shall affect the authority of the
Attorney General of North Carolina, including but not limited to, the Attorney General's
authority to represent Lessor in any and all litigation.
12.2 Insurance Requirements. All policies shall be issued by insurance companies
acceptable to Lessor. All such policies maintained by Lessee shall be purchased only from
insurers who are authorized to do business in the State of North Carolina,who comply with the
requirements thereof, and who carry an A.M. Best Company rating of "A" or "A+." All
insurance policies shall contain an endorsement, if obtainable, specifically naming Lessor as an
additional insured, and shall be primary to any other insurance that may be available to Lessor.
All insurance policies shall contain an endorsement stating that the insurer will not cancel or
reduce coverage without first giving Lessor thirty (30) days prior written notice. Lessee will
provide Lessor with current certificates of such insurance, including a copy of all additional
insured endorsements,within thirty(30)days after execution of this Lease,and will provide true
and complete copies of such insurance policies upon Lessor's request.
12.3 Lessee's Liability. As between Lessee and Lessor,Lessee, subject to the terms of
this Lease,shall be primarily liable for the negligent or intentional acts or omissions of its agents,
contractors or employees. As to third parties, Lessee,to the extent permitted by law and solely
to the extent indemnified by an-insurance policy such that any amounts paid by Lessee to Lessor
comes from insurance proceeds and not from Lessee's funds, agrees to save Lessor harmless
from and against any and all loss, damage, claim, demand, liability, or expense, including
reasonable attorney fees, by reason of damage to person or property on or about the Premises,
which may arise or be claimed to have arisen as a result of the possession, occupation, use or
operation of the Premises by Lessee, its agents or employees,except where such loss or damage
arises from the willful or negligent misconduct of Lessor,its agents or employees.^�*
.hil; co,..;,,,, thAt r o 0 » ; aori ;f, a , ]a r o , 10 ., o o .o . ,,., ;,oa
rTA4-1 r,,., i '° �`.otwithstandin the above, no provision of this Lease shall be construed as Comment[gmt12]:Rejected,but see
constituting waiver of either Party's governmental immunity under any applicable law. modifications.
13. Casual .In the event the Premises and the Leasehold Improvements,or a substantial part
thereof, shall be damaged by fire or other casualty, Lessee may, at its option, terminate this
Lease or cause the Premises and the Leasehold Improvements to be repaired or renovated. If
Page 4 of 17
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Lessee determines to make the necessary repairs or renovations, any proceeds from fire or
casualty insurance shall belong to Lessee. In such event, Lessee, at its sole cost and expense,
shall cause the repairs and renovations to be made in a good and workmanlike manner, without
unreasonably delay, and in compliance with all applicable governmental laws and regulations
and the Approved Plans. If Lessee determines not to make the necessary repairs or renovations,
then this Lease shall terminate and Lessee, at Lessor's option, shall cause the Premises to be
restored to a condition reasonably approximating that existing at the Effective Date and any
proceeds from fire or other casualty insurance, less- payment for any permitted indebtedness
thereon,payment to Lessee for its personal property�nd Leasehold Improvements Iocated on the Comment 19_t13]:Accepted.
Premises and any payment necessary to restore the Premises, shall belong to Lessor. Lessee's
determination concerning repair as stated in this Section shall be given to Lessor in writing
within ninety(90)days of the fire or casualty causing the damage.
14. Hazardous Materials.
14.1 Definitions. For purposes of this Lease: (i)"Hazardous Material"or"Hazardous
Materials"means and includes,without limitation,(a)solid or hazardous waste,as defined in the
Resource Conservation and Recovery Act of 1980, or in any applicable state or local law or
regulation, (b)hazardous substances, as defined in the Comprehensive Environmental Response
Compensation and Liability Act of 1980("CERCLA"),or in any applicable state or local law or
regulation, (c) gasoline, or any other petroleum product or by-product, (d)toxic substances, or
rodenticides, as defined in the Federal Insecticide,Fungicide,and Rodenticide Act of 1975,or in
any applicable state or local law or regulation, as each such Act, statute, or regulation may be
amended from time to time; (ii) "Release" shall have the meaning given such term, in
Environmental Laws,including,without limitation,CERCLA; and(iii)"Environmental Law"or
"Environmental Laws"shall mean"Super Fund'or"Super Lien"law or any other federal, state,
or local statute, law, ordinance, or code,regulating, relating to or imposing liability or standards
of conduct concerning any Hazardous Materials as may now or at any time hereafter be legally in
effect, including, without limitation, the following, as same may be amended or replaced from
time to time, and all regulations promulgated and officially adopted thereunder or in connection
therewith: Super Fund Amendments and Reauthorization Act of 1986 ("SARA"); the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA");The Clean Air Act("CAA")l-the Clean Water Act("CWA");the Toxic Substance
Control Act("TSCA"); the Solid Waste Disposal Act("SWDA"), as amended by the Resource
Conservation and Recovery Act("RCRA");the Hazardous Waste Management System; and the
Occupational Safety and Health Act of 1970 ('OSHA"). All obligations and liabilities arising
under this Section 14 which arise out of events or actions occurring prior to the expiration or
termination of this Lease shall survive the assignment of this Lease and the expiration,
termination,cancellation or release of record of this Lease.
14.2 Lessor Not Liable for Hazardous Materials. Lessor shall not be responsible for
any damage, loss or expense resulting from the existence on the Premises of any Hazardous
Material generated, stored, disposed of or transported to or over the Premises. Lessor makes no
representations regarding any environmental hazard on the Premises. The Premises are leased on
an `as-is'/where-is basis.
14.3 Lessee's Obligations. Lessee shall give Lessor immediate written notice of any
Page 5 of 17
11
problem, Release, threatened Release or discovery of any Hazardous Materials on or about the
Premises or claim thereof. If such problem,Release,threatened Release or discovery was caused
by Lessee, its employees, agents, contractors, invitees or licensees, this notice shall include a
description of measures taken or proposed to be taken by Lessee to contain and/or remediate the
Release of Hazardous Materials and any resultant damage to or impact on property, persons
and/or the environment (which term includes, without limitation, soil, surface water or
groundwater) on, under or about the Premises. Upon Lessor's approval and at Lessee's own
expense, Lessee shall promptly take all steps necessary to clean up or remediate any Release of
Hazardous Materials, comply with all Environmental Laws and otherwise report and/or
coordinate with Lessor and all appropriate governmental agencies.
14.4 Liability. essee agrees to save Comment[gmt14]:Rejected.
Lessor harmless from and against any and all liens, demands, defenses, suits, proceedings,
disbursements, liabilities, losses, litigation, damages,judgments, obligations, penalties, injuries,
costs, expense(including,without limitation,attorneys' and experts'fees)and claims of any and
every kind of whatsoever paid, incurred, suffered by, or asserted against Lessor with respect to,
or as a direct or indirect result of the violation of any Environmental Laws applicable to the
Premises,to the extent that such violation is caused by the activities of Lessee during the term of
this Lease.
15. Waste/Interference. Lessee shall not use the Premises in any manner that will constitute
waste or in any manner that would unreasonably interfere with the operation of the adjacent
Orange Correctional Center.
16. Compliance. Lessee agrees to comply, at Lessee's sole cost and expense, with all
governmental laws,rules, ordinances and regulations applicable to the Premises or Lessee's use
and occupancy thereof.
17. Liens. Lessee agrees to pay all lawful claims associated with the construction of the
Leasehold Improvements on a timely basis and shall save Lessor harmless from and against any
and all claims by third parties and contractors arising out of the construction of the Leasehold
Improvements. Lessee shall not encumber the Premises with any mortgages or permit any
mechanic's, materialman's, contractor's, subcontractor's or other similar lien arising from any
work of improvement performed by or on behalf of Lessee, however it may arise, to stand
against the Premises. In the event the Premises are encumbered by any such lien,Lessee may in
good faith contest the claim underlying such lien, so long as Lessee immediately bonds or
otherwise discharges the lien.
18. Events of Default. The occurrence of any of the following shall constitute a material
default and breach of this Lease by Lessee(an"Event of Default"):
18.1 Vacation / Abandonment. Lessee ceases to occupy, abandons or vacates the
Premises for the purposes of this Lease before the expiration of the Term.
18.2 Transfer. The assignment, subletting or other transfer or any attempted
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assignment,subletting or other transfer,of this Lease in violation of Section 25.1 herein.
18.3 Hazardous Materials Violation. Any violation of Section 14 by Lessee or any
subtenant of Lessee; provided, however, that such violation shall not constitute an Event of
Default if within ten (10) days of notice of such violation, Lessee shall both deliver to Lessor
such cash security as Lessor may require, in its sole and absolute discretion, in order to fully
protect Lessor and the Premises from and against all claims, losses and costs actually or
potentially caused, as determined by Lessor, and commence to cure such violation and if
thereafter Lessee thereafter pursues such cure to completion in a manner satisfactory to Lessor.
18.4 Failure to Perform. If Lessee fails to perform any of Lessee's nonmonetary
obligations under this Lease for a period of thirty (30) days after written notice from Lessor;
provided that if more time is required to complete such performance, Lessee shall not be in
default if Lessee commences such performance within the thirty (30)-day period and thereafter
diligently pursues its completion. However, Lessor shall not be required to give such notice if
Lessee's failure to perform constitutes a non-curable breach of this Lease.
18.5 Other Defaults. If Lessee shall fail to comply with any provision contained
herein or any of the rules commenced by or against it in any legal proceeding to declare it
bankrupt, insolvent or unable to pay its debts,or shall make a general assignment for the benefit
of its creditors.
18.6 False Statement. The making or furnishing by Lessee on any warranty,
representation or statement to Lessor in connection with this Lease, or any other agreement to
which Lessee and Lessor are parties, which is knowingly false or misleading in any material
respect when made or furnished.
18.7 Unlawful Purpose. If Lessee allows the Premises to be used for any unlawful
purpose.
Inethical or Fraudulent Actions. If,in its sole discretion,Lessor determines with Comment[]R15]:Because this is ajail this
regard to this Lease, efbut unrelated to 4w,-Lessee's permitted use and Oee" of the se°tionisnot appropriate. aswithalljailsand
prisons there may regularly be baseless legal actions
Premises, that Lessee knowingly has: acted in an unethical or fraudulent manner; or acted in a asserting unethical or unprofessional conduct,
manner that would bring 4w—Lessor into disrepute; or acted in a manner that is in violation of wrongfid death,or other maltreatment of inmates
which could be used to exercise the options related
public policy or in a manner detrimental to the legitimate interests of 4w-Lessor; or has refused to this section.
Lessor's request for information or additional assurances either with respect to 4w—Lessor's
reasonable belief that any of the foregoing defaults may have occurred, or which may otherwise
be required by law.l Comment[gmt16]:Deletion of entire
subsection rejected. Modifications made in attempt
to address Lessee's concerns.
19. Lessor's Remedies. Upon the occurrence of any Event of Default or failure by Lessee to
perform any obligation of Lessee under this Lease,which failure is not cured within the specific
time periods provided in this Lease or if no specific time period is provided, then within sixty
(60)days after written notice to Lessee(or if such failure cannot be cured within sixty(60)days,
then within such reasonable period of time,provided Lessee proceeds promptly and diligently to
cure such breach), whichever occurs first, then Lessor, at its option may (i) terminate Lessee's
right to possession of the Premises at any time by any lawful means, in which case this Lease
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shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor;
and/or (ii)pursue any other remedy now or hereafter available to Lessor under North Carolina
law.
20. Right of Lessor to Re-Enter. In the event of any termination of this Lease by Lessor or
the enforcement of any other remedy by Lessor under this Lease, Lessor shall have the
immediate right to enter upon and repossess the Premises and remove or store Lessee's personal
property in accordance with the terms of Section 22. Lessee hereby waives all claims arising
from Lessor's re-entering and taking possession of the Premises and removing and storing the
property of Lessee as permitted under this Lease and will save and hold Lessor harmless from all
losses, costs or damages occasioned Lessor thereby. No such reentry shall be considered or
construed to be a forcible entry by Lessor. Lessee hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Lessee being
dispossessed for any cause, or in the event of Lessor obtaining possession of the Premises, by
reason of the violation by Lessee of any of the terms, covenants or conditions of this Lease, or
otherwise.
21. Legal Costs. Lessee shall reimburse Lessor, upon demand, for any reasonable costs or
expenses incurred by Lessor in connection with any breach by Lessee or the occurrence of any
Event of Default under this Lease,whether or not suit is commenced or judgment entered. Such
costs shall include reasonable legal fees and costs incurred for the negotiation of a settlement,
enforcement of rights or otherwise.
02. Ownership of Leasehold Improvements, Surrender of Premises. r,,,..;,,,. th@ T°
aOwnership of the Leasehold Improvements shall be in Lessee.At the expiration of the Term
Mon mutual agreement,the Lease may be renewed for up to
three additional terms of twenty,(years each. Upon the expiration of the Lease and any Comment[gmt17]:The Council of State only
renewal periods Lessee shall promptly quit and surrender the Premises approvedafiftyyearterm. The inclusion of renewal
options is a basic business term that should have
in good order, condition and repair, ordinary wear and tear excepted and if been discussed and agreed upon prior to the matter
aee@pt@d so Jby T ° r,the Leasehold Improvements shall become the property of Lessor. ithall being put on the COS agenda. ]f a parties agree on
any renewal option the matter must go back to COS
upon payment of the then fair market value of the Leasehold for further approval.
Improve to Lessee. At the termination of this Lease, Lessee shall remove any and all of please note that G.S.146-27 limits]ease of state
Lessee's personal property, trade fixtures and equipment from the Premises. All such personal owned land to a period that does not exceed 99
property,trade fixtures and equipment not so removed by Lessee and remaining on the Premises years. Lessee is propos fixtures a possible total term of
110 years.
thirty (30)days after the termination of this Lease shall,at Lessor's option,become the property Comment[9mt18]:This a material term that
of Lessor or Lessor may have the property removed or stored, at Lessee's expense. TryM *'-r°o would require fiuther COS approval.
pfap@f y of T°ssip-pMid—zcs;S@@, ca4 its Sol@ east—md--°&EffflW, Shall ° ° rl,° r°.,SPihvia
.,131.,., .,t;,,,.thM° st;,,g M th@ E f f eti °Tl.,t°
Comment[9mt19]:All changes to this section
are rejected.
23. Holdover. In the event Lessee remains in possession of the Premises after the expiration
of the Term and without the execution of a new lease, Lessee shall occupy the Premises as a
tenancy at sufferance subject to all of the conditions of this Lease insofar as consistent with such
a tenancy. However, either Party shall give not less than sixty (60) days written notice to
Page 8 of]7
14
terminate the tenancy. In addition, Lessee shall indemnify, defend and hold Lessor harmless
from any and all claims, losses, damages, costs and expenses (including reasonable attorneys'
fees and costs), incurred by Lessor in connection with any holdover by Lessee, including any
claims,losses or damages relating to any prospective tenant of the Premises.
24. Miscellaneous.
24.1 Assignment and Subletting. Lessee shall not assign this Lease nor sublet all or
part of the Premises without the prior written consent of Lessor.
24.2 Binding Effect. This Lease shall be binding upon and shall inure to the benefit of
the Parties,their successors and permitted assigns.
24.3 Prohibition on Gifts. North Carolina General Statute §133-32 and Executive
Order 24, as applicable, prohibit the offer to, or acceptance by, any employee of Lessor of any
gift from anyone with a contract with Lessor, or from any person seeking to do business with
Lessor. By execution of this Lease, Lessee attests, for its entire organization, including its
employees or agents, that it is not aware that any such gift has been offered, accepted, or
promised by any employees of its organization.
24.4 Smoking Restrictions. Lessee shall enforce within the Premises the smoking
regulations established pursuant to North Carolina General Statute §130A-493 and any future
legislation which restricts smoking.
24.5 Authority. Each person executing this Lease on behalf of Lessee does hereby
represent and warrant that that this Lease was duly approved by the governing body of Lessee,
that this Lease is the act and deed of Lessee, that Lessee has full lawful right and authority to
enter into this Lease and to perform all of its obligations hereunder,and that each person signing
this Lease on behalf of Lessee is duly and validly authorized to do so.
24.6 Relationship Between Parties. Nothing in this Lease shall be construed to render
the Lessor in any way or for any purpose a partner,joint venturer,or associate in any relationship
with Lessee other than that of Lessor and Lessee, nor shall this Lease be construed to authorize
either to act as agent for the other.
24.7 Applicable Law. This Lease shall be governed by, construed under and
interpreted and enforced in accordance with the laws of the State of North Carolina,regardless of
conflict of law principles.
24.8 Entire Agreement. This instrument contains the entire agreement between the
Parties, and no statement, premise, inducement, representation or prior agreement which is not
contained in this written Lease shall be valid or binding.
24.9 Amendment. No amendment, modification, alteration or revision of this Lease
shall be valid and binding unless made in writing and signed by Lessee and Lessor.
Page 9 of 17
15
24.10 Construction of Language. The terms"lease,""lease agreement"or"agreement"
shall be inclusive of each other, and also shall include renewals, extensions, or modifications of
this Lease. Words of any gender used in this Lease shall be held to include any other gender,
and words of the singular shall be held to include the plural and the plural to include the singular
when the sense requires. The section or paragraph headings and the titles are not a part of this
Lease and shall have no effect upon the construction and interpretation of any part hereof.
24.11 Terms. Capitalized terms used in this Lease shall have the meanings ascribed to
them at the point where first defined,irrespective of where their use occurs,with the same effect
as if the definitions of such terms were set forth in full and at length every time such terms are
used.
24.12 Effect of Waiver or Forbearance. No covenant or condition of this Lease can be
waived except by written consent of the Parties. A waiver of any covenant or condition on one
occasion shall not be deemed a waiver of said covenant or condition on any subsequent occasion
unless such fact is specifically stated in the waiver. Forbearance or indulgence by Lessor in any
regard whatsoever shall not constitute a waiver of any covenant or condition to be performed by
Lessee, and until Lessee has completely performed all covenants and conditions of this Lease,
Lessor shall be entitled to invoke any remedy available to Lessor under this Lease or any law or
equity despite such forbearance or indulgence.
24.13 Survival. All obligations accruing prior to expiration of the term of this Lease
shall survive the expiration or other termination of this Lease.
24.14 Lessor's Remedies Cumulative. The rights and remedies of Lessor specified in
this Lease shall be cumulative and in addition to any other rights and/or remedies otherwise
available,whether or not specified in this Lease.
hn 15 V--a&.,T@f ina4Ja„ °v r° °ll°.; cl ,,l l r° .t °,, t l° l°.;.,° .;.,°Lessor-
° axco i3i°oi3axacxoxx, ooxixHaoc:oxx, I�resmrr�,
,l° _ and Oth@r- ,. Comment[gmt20]•Rejected.
24. 16 Severability. In case any one or more of the provisions contained in this
Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity,illegality or unenforceability shall not affect any other provision hereof and this Lease
shall be construed as if such invalid,illegal,or unenforceable provision had never been contained
herein.
24.4617 Construction. No provision of this Lease shall be construed against or
interpreted to the disadvantage of any Party by any court or other governmental or judicial
authority by reason of such Party's having or being deemed to have prepared or imposed such
provision.
Page 10 of 17
16
24. 18 Counterparts. This Lease may be executed in two or more counterparts,
each of which shall be deemed an original,and all of such counterparts together shall constitute
one and the same instrument.
24. 19 Memorandum of Lease for Recording. At the request of either Party,
Lessor and Lessee shall execute a memorandum of this Lease for recording in the public records
at the requesting Party's sole cost and expense. The memorandum of Lease shall set forth the
Parties, provide a description of the Premises, specify the Term and incorporate this Lease by
reference.
24.4120 Notices. All notices herein provided to be given, or to which may be
given, by either Party to the other, shall be deemed to have been fully given when made in
writing and deposited in the United States mail, certified and postage prepaid, and addressed as
follows:
To Lessor: Bill Stovall,P.E.
NC Department of Public Safety
4216 Mail Service Center
Raleigh,NC 27699-4216
With copy to: State Property Office
Attn: Manager,Leasing and Space Planning Section
1321 Mail Service Center
Raleigh,North Carolina 27699-1321
To Lessee: r atm4y of Ofan Orange County) Comment[gmt21]:Accepted.
Attn: County Manager
Post Office Box 8181
Hillsborough,NC 27278
The address to which notices shall be mailed as aforesaid to either Party may be changed by
written notice.
[signatures begin on following page]
Page 11 of 17
17
IN TESTIMONY WHEREOF, Lessor has caused this instrument to be executed in its
name by Pat McCrory, Governor, attested by Elaine Marshall, Secretary of State, and the Great
Seal of the State of North Carolina hereto affixed,by virtue of the power and authority aforesaid;
and Lessee has caused this instrument to be executed in its name by its Chair of the Board of
Commissioners or County Manager, attested, by its Clerk and its County seal hereto affixed by
authority duly given,all as of the dates set forth in the notary acknowledgments below.
LESSEE:
rnT rT.rry n-nn n 7.4 ORANGE COUNT Comment[gmt22]:Accepted.
By:
Print Name:
Title:
ATTEST:
(Seal)
Clerk
STATE OF NORTH CAROLINA
COUNTY OF
I, a Notary Public in and for the aforesaid
County and State do hereby certify that personally came
before me this day and acknowledged that he/she is Clerk of the r°,,,,
County and that by authority duly given and as an act of the matt° of of°r°°Orange County, comment[ymtz3]:Accepted.
the foregoing instrument was signed by its
attested by himself/herself as Clerk and sealed with the common
seal.
IN WITNESS WHEREOF,I have hereunto set my hand and Notarial Seal,this the
day of ,2013.
Notary Public
My Commission Expires: Print Name:
Page 12 of 17
18
LESSOR:
STATE OF NORTH CAROLINA
By:
Governor
ATTEST:
Secretary of State
APPROVED AS TO FORM:
ROY COOPER,Attorney General
By:
Assistant Attorney General
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, a Notary Public in and for the County of
and State of North Carolina, do hereby certify that ELAINE
F. MARSHALL, Secretary of State of North Carolina,personally came before me this day and
acknowledged that she is Secretary of State of North Carolina, and that by authority duly given
and as the act of the State,the foregoing instrument was signed in its name by PAT MCCRORY,
Governor of the State of North Carolina, sealed with the Great Seal of the State of North
Carolina,and attested by herself as Secretary of State of North Carolina.
IN WITNESS WHEREOF,I have hereunto set my hand and Notarial Seal,this the
day of ,2013.
Notary Public
Page 13 of 17
19
My Commission Expires: Print Name:
Page 14 of 17
20
EXHIBIT A
Description of Premises
Lying and being in Town of Hillsborough, Orange County, North Carolina and being more
particularly described as follows:
Page 15 of 17
21
EXIHBIT B
Leasehold Improvements
Page 16 of 17
22
EXHIBIT C
Approved Plans
Page 17 of 17