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HomeMy WebLinkAboutAgenda - 08-20-1996 - VIII-I 1 ORANGE COUNTY BOARD OF COMMISSIONERS Action Agenda Item No. Y ACTION AGENDA ITEM ABSTRACT Meeting Date: August 20, 1996 SUBJECT: Amendment to Facilities/Services Agreement with Orange County Community Activity Corporation. DEPARTMENT: Finance PUBLIC HEARING: YES: NO: X ATTACHMENT(S) : INFORMATION CONTACT: Facilities/Services Agreement TELEPHONE NUMBER: Hillsborough-732-8181 Chapel Hill -968-4501 Mebane -227-2031 Durham -688-7331 PURPOSE: To Consider authorizing the Manager, Finance Director and County attorney to work with the Board of Directors of the Orange Community Activity Corporation (OCCAC)to provide greater flexibility for both parties within the terms of the existing Facilities/Services Agreement. BACKGROUND: The Board of County Commissioners entered into a Facilities Services Agreement with the OCCAC in March 1994. This agreement provides for the payment of $400,000 annually by the County for the availability of recreation facilities for the citizens of the County. The OCCAC has expressed interest in having a more flexible arrangement with the County as it relates to the payments by the County called for in the agreement. The Current agreement provides that the County pay the funds to the OCCAC on a monthly basis in twelve (12) equal installments. The OCCAC would like for the County to have the option of paying the funds either monthly, Bi-monthly or Quarterly. This would provide the OCCAC with greater cash flow flexibility to manage seasonal operating issues as well as the semi- annual debt payments. The County payment would not exceed $400,000 annually. In addition, a change in the timing of payments to the OCCAC would have little, if any, impact on the County's cash flow. 2 f RSCOMKICNDATION(S) : The Manager recommends that the Board (1)authorize Staff and the County Attorney to draft an amendment to the existing facilities/ Services Agreement; and, (2)authorize the Chair and the Clerk of execute the amendment for the County. 3 j Ile T-Rd Cr1UMLW HAS MESH P.M Aummm tN TM YA W=- mxs=m BY Tt3 LW-AL GcvEiryirrr aucat:•A,.,u Cr—tcedt T. Cluvi w Ei=c:Cftic:z NoaTS CARO.LINX CObtMTZa-rY ACE(VI Y CENTER OaA-NGZ COUN-rY FACa rrM3/SZRYXMs AGRY-FNMNT 7WS A GREMWENT(the "Agrttraens") made and eru.°red into as of dt a 1st day of Nlarch, 1994, by acd beEweea OiLANG8 Courrry Com.%,lJNrrY ACrIV= COR-PORATtON (the "Corporadoa"), a ianprofit corporadoa duly in,comorared under the laws of the State of North Carolina, and the CocNTY of Ox xcoz, NORTH CAROLINA (the "County'), a body politic and corporate existing under North Carolina law; W ITN ESSETM WHEREAS,tbA-.Board of Cammissioaers of the Comfy of Orange, North Carolina(the "Board") bas deterrnined dhat there is a nrxd for a public swimming pool accessible to all residents of the County; and - WH"cRE-iS, the Board has evaluated several options for providing a public swimming pool xcessible to all reside= of the County; acrd WRx--RZ4S, the Board has appropriated an initial amount of funding fbr the cons=ctica of a public swimming pool facility is the County's 1993-95 Capital lmproverrntc Plan; and WEEZE lS, the Corporation is a nonprofit orgmizstioa authorized to own, operate and manage ;tecreadanal actividcs in the County; and WI EREAS, the Corporation has proposed the eonsauctioa of a-Cotnmuaty A.ctivicy Center ("CAC"), which would iaciude three swimming pools (the 'CAC Pools') and other facilities, inducting as ice rink; and tiV ERP.dS, a= Corporation proposes to finance construction of the CAC through a "63-20' 5n2acing(the'corporation,£t ag')in which rile Corporation would issue its awn corporate debt(the '1994.Bonds') undcr an Iade=re of Trust dated as of March 1, 1994 (the. 'Indenture*) beswem the Corpo�an and First Union Nadonal Bank of North Carolina and the County arauld not be liable far any payment of that debt; and ,due to economics of scale and other fsators, the Corporadon would be able w provide znd maintain the CAC Pools on a more efff6mx basis than the County cculd if die County were To build and operate its own pool; and " 4 IFEEZE.AS, the County is authorized to make public expenditures for parks and recreation; and WREREAS, the County is authorized to contract with private entities for any public purpose; and Wff—REAS, the County is authorized to enter into continuing, multiple-year agreements and 0=� WHEREAS, the County has determined that it is in the best interest of the County that, instead and operating its awn pool, the County contract with the Corporation to provide a public pool gcrzd nal services through the operation of the CAC Pools for the benefit of Orange County MW, THEREFORE, in consideration of the mutual covenants herein contained, the Corporation 19he County hereby agree as follows: ARTICLE I PURPOSE OF AGREVMNT; ESSLNTLUX Y The purpose of this Agreement is to give the residents of Orange County access to three public pools by having the County compensate the Corporation for the costs associated with the use SW aperuion of the CAC Pools. ARTICLE H ENGAGF"NILNT Section 2.01. Engagement of the Corporation. The County hereby engages and retains the Sh9crztion as an independent contractor to provide and operate the CAC. Section 2.02. Scope of Engagement. The Corporation shall provide the CAC and furnish facility f p==iocal.services as reasonably required for the efficient construction and operation of the CAC. Corporation agrees to build and operate the CAC similarly to the manner in which the County would and operate its own recreation facilities, as set forth in the Operating Memorandum attached hereto bit A. ARTICLE III PAYMENT OBLIGATION Section 3.01. Payment of Fee. For services to be rendered by the Corporation hereunder, the hereby agrees to pay an annual fee (the "Fee") of Four Hundred Thousand Dollars (S 400,000). Re will be paid in twelve equal monthly installments. The first monthly installment payment of the k due and payable on the first day the CAC is open for use by general public(the "Opening Date"}- =ad and each subsequent payment is due and payable on the first day of the each month thereafter the term of the Agreement, as set forth in Section 4.02. If the date for making payment as herein, is not a business day, such payment may be made on the next succeeding business day, 2 5 00, -e force and effect as if done on the nominal date provided herein, and no interest shall accrue f 'od after such nominal date. Lion 3.0'L. Security for Payment of the Fee. The payment obligation under this Agreement �ttal obligation of the County, payable from the County's funds and from the earnings and all ;ceived by the County from whatever source derived, to the extent that County's funds are leie for such purpose and are not pledged for the payment of any other obligation of the County and any to the limitation set forth in N.C. GM4. STAT. § 153A-149(c). Section 3.03. No Abatement of Fee. There will be no abatement or reduction of the Fee by the for any reason, including, but not limited to, any defense, recoupmeat, setoff, counterclaim, or arising out of or related to the Agreement, including the temporary closing of the CAC for no than three. (3) full consecutive months or the closing of the CAC for 90 days during a 12 motive month period. Closing of the CAC for more than three (3) full consecutive months or the ? g'of the CAC for 90 days during a 12 consecutive month period will, however, effect a termination �.. °' Bement unless otherwise mutually approved b the artier pursuant to Section 16.06 contained a(ttyc,Agr Y PP Y P P and if the cause of the termination was Force Majeure, the Agreement will automatically be ed when the CAC is again open. Section 3.04. Fee. The Fee shall cover payment for all services to be provided under this AV==nt by the Corporation, including but not limited to: (i) all salaries, benefits, and other expenses incurred by the Corporation personnel pursuant to this Agreement; (ii) any Corporation overhead and profit; and (iii) all other fees, charges, costs, and expenses associated with the Corporation's perfor- mance of this Agreement. A.R'ITCLE IV DuFATtON Section 4.01. Effective Date. This Agreement shall be effective when approved by the respective . lag bodies of each party, executed in duplicate counterparts and delivered to the respective parties. _ Section 4.02. Term of Agreement This Agreement shall continue in full force and effect for tea from the Opening Date, as herein defined in Section 3.01. ARTICLE V PERSONNEL The Corporation shall employ a General Manager who shall serve at the sole expense of the y«,+ratloa and shall provide the active management of the CAC. The Corporation retains the right and 4 asbiiiry to exercise full control and supervision over its employees and their terms and conditions -�Woytnent except as otherwise provided herein. Without limiting the generality of the foregoing. 3 man shall be solely responsible for all matters relating to payment of its employees, including INN g and payment of employee taxes, insurance contributions, and the Iike. As between the otR and the County, the Corporation will be responsible for its own acts and omissions and those its and subcontractors to the extent provided by law. ARTICLE VI NLTURE OF RELAnONSE3P The Corporation and the County agree that in the performance of this Agreement, the Corporation -•a g as an independent contractor. Nothing herein shall constitute or be construed to be or -partnership, agency, joint venture or other similar relationship between the County and the rauon. The Corporation agrees that it will not represent to anyone that its relationship to the Otis other than that of independent contractor, and the County and the Corporation may so inform >°"P es with wham they deal and may take any other reasonable steps to carry out the intent of this ARTICLE VII PROM= IIN ERESrS No member of the Board of Commissions of the County, or officer, or employee of the County, 'daring his/her tenure or for one (1) year thereafter, shall have any personal interest, direct or indirect, 'E this Agreement or the benefits thereof. No Corporation officer, employee, or agent associated with `.Wi,Agreement, and no Corporation officer, employee, or agent shall either solicit or accept gratuities, fzvats,or anything of material monetary value from vendors, suppliers, or subcontractors for his or her Wdual benefit. ARTICLE VIII OPERAT NG REVLNTJES Until the debt obligations incurred by the Corporation pursuant to the Corporation Financing have _1 ra'.discharged, all revenues derived in any manner from or in connection with"the operation of the G C;w'hether from users or from any other sources whatsoever, shall be and remain from the initial t thereof, the property of the Corporation subject to the assignment thereof by the Corporation, "3gding the assignment of the Fes under the Indenture. ARTICLE IX COVEXViTs, REPRESLYrAMONS, AND WARRAN= �. Section 9.01. Covenantr, Representations, and Warranties of the County. The County hereby " t?ats, represents, and warrants as follows: 4 7 n The County will maintain its existence, and, in the event of reorganization, this Agreement will be binding upon any successors or assigns; (ii) The County will comply in all material respects with the terms and conditions of the laws of North Carolina respecting budgeting and appropriations and will take whatever action is t=sary to assure the proper and continued receipt and expenditure of monies thereunder; (iii) The County will execute and deliver all such further instruments and take all such further saioa as may be required to carry out the purposes of this Agreement; (iv) Neither the execution and delivery hereof, nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, conflicts with or results in breach of the terms, conditions, and provisions of any restriction or 23reement or instrument to which the County is now a parry or by which the County is•bound, or constitutes a default under any of the foregoing; (v) No controversy, budget protest, or litigation is pending or threatened involving the incorporation, organization, existence, or boundaries of the County, or the titles of its officers to their respective positions, or the validity of the adopted budget, or the power and duty of the County to provide and apply adequate ad valorem tax receipts and other general fund receipts in accordance with its adopted budget for the current fiscal year; and further there is no action, suit, proceeding, inquiry, or investigation at law or in equity or before or by any public board or body pending or, to its knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding would adversely affect the transactions contemplated by this Agreement. The County will immediately notify the Corporation if any such controversy or litigation is filed or threatened during the term of this Agreement; (n) As of the date of execution hereof the County is not currently in default in any material respect on any other obligation; (vii) The County will not own or operate swimming or skating facilities which would compete with the CAC during the term of this Agreement without the consent of the Owners of the 1994A Boads; and (viii) The payment obligation under this Agreement is a contractual obligation of the County, payable from the County's funds and from the earnings and all income received by the County from whatever source derived, to the extent that County's funds are available for such purpose and are not pledged for the payment of any other obligation of the County and subject only to the lirnitation set forth in N.C. GEN. STAT. $ 153A-149(c). Section 9.02. Covenants, Representations, and Warranda ofthe Corporation. The Corporation its,covenants, and warrants for the benefit of the County as follows: (i) The Corporation is a nonprofit corporation duly created, existing, and in good standing under the laws of North Carolina, is duly qualified to do business in North Carolina, has all necessary powers to carry out its obligations and to enter into this Agreement, and has duly authorized the executioa and delivery of this Agreement; (ii) Neither the execution and delivery hereof, nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, S r 8 ' 1 conflicts with or results in breach of the terms, conditions, and provisions of any restriction or agreement or instrument to which the Corporation is now a party or by which the Corporation is bound, or constitutes a default under any of the foregoing; (iii) To the knowledge of the Corporation, there is no litigation or proceeding pending or threatened against the Corporation or any.ocher person affecting the right of the Corporation to execute or deliver this Agreement or to comply with its obligations under this Agreement. Yeither the execution and delivery of this Agreement by the Corporation, nor compliance by the Corporation with its obligations under this Agreement, require the approval of any regulatory body, any parent company, or any ocher entity, which approval has not been obtained; (iv) The Corporation agrees to obtain annually an audit of its financial statements from an accounting firm acceptable to the County and to provide a copy of such audit to the County promptly after receipt thereof; (v) The Corporation will maintain its existence, *and, in the event of reorganization, this Agreement will be binding upon any successors or assigns; (vi) The Corporation will execute and deliver all such further instruments and take all such further action as may be required to carry out the purposes of this Agreement; and (vii) The Corporation will nor issue additional Indebtedness as defined in the Indenture without the approval of the County. ARTICLE X OWNERsEaP OF PROPERTY; LLvr= OBLIGATION OF COUNTY All property of any type (real or personal) now or hereafter acquired at the expense of the Corpoiatioa for or in connection with the CAC shall be acquired in the name of, and be owned by, the °.Cotgoration, provided, however, that (1) the Corporation may subject the property to a deed of trust paruant to the Corporation Financing and(Z)upon(a) payment is full of the Corporation Financing,and @)�geust by the County, the Corporation shall convey and transfer all such property to the County for m;additional consideration by: (i) with respect to real property, a North Carolina Bar Form Special Deed, subject only-to matters of record existing as of the date of this Agreement, ising in Zee 'On with road or utility easements and matters consented to by the County, and (11) with respect b ponal Property, by brill of sale which includes warranties that the Corporation holds unencumbered �rao: The Corporation, as evidence of this Agreement to transfer and convey property to. the shall, execute and deliver to the County a Memorandum of At to Convey Land in b le form subsUmWy in the form of Exhibit B to this Agreement. Notwithstanding anything to Y in this Agreement or any other document, the rights of the County under this Agreement to . convey PmP=tY shall in no event vest later than twenty-one 1 �h.af the last �Y CZ )Y� after the date of the -the surviving linear descendant noCow�; g of Donald P. Ubell, Ashley L. Hogewood, Jr., -•• Lee, Jr., all of Mecklenburg North Carolina. 6 f 9 ARTICLE XI LYSURANCE The Corporation shall procure and maintain, or cause to be procured and maintained, throughout L-term of this Agreement, all insurance as customarily maintained for such facilities. The types of =+tnge and limits of liability obtained shall be subject to approval by the County. ARTICLE XII IiYDE.titYIFICATIOtY , To the extent permitted by law, and further, to the extent of insurance policies owned by the C=y, the County shall indemnify, defend, and hold harmless the Corporation from and against any d ill claims or liabilities (including reasonable attorneys' fees)*arising out of or in connection with this meat where attributable to the acts or omissions performed by.the County. The Corporation shall tft�=nify, defend, and hold harmless the County from and against any and all claims or liabilities (n:luding reasonable attorneys' fees) arising out of or in connection with this Agreement where ecibuuable to the acts or omissions performed by the Corporation. ARTICLE XIII PERFORMANCE OF GOVEI NN&MNT FUNCTIONS Nothing contained in this Agreement shall be deemed or construed so as to in any way estop, Emit, or impair the County from exercising or performing any regulatory, policing, legislative, prc=ental, or other powers or functions pursuant to applicable law. ARTICLE XIV DEFAULTS AND R NEDIFS Section 14.01. Def=i on of Event of Default. A. The County shall be deemed to be in default hereunder upon the happening of any of the Nkm*events of default: (1) The County fails to make payment of the Fee required under Section 3.01 when due; (u) The County fails to budget appropriate money sufficient to pay the Fee coming due in the text ensuing fiscal year in the County's annual budget or in an interim or amended County budget; (iii) Any bankruptcy, insolvency, or reorganization proceeding or similar litigation as instituted against the County, or a receiver, custodian, or similar officer is appointed for the County or any 7 10 Sf its property, and such proceeding or appointment shall not be vacated or fully stayed within r0ery (90) days after the institution or occurrence thereof; or 's(iv) Any warranty, representation, or statement made by the County herein or in any other accument executed or delivered in connection herewith is found to be incorrect or misleading in ;any material respect on the date made. IB, The Corporation shall be deemed to be in default hereunder upon the happening of any allowing events of default: (1) Any bankruptcy, insolvency, or reorganization proceeding or similar Iitigation is instituted arrypostated t the Corporation, or a receiver, custodian, or similar officer is appointed for the Cration or any of its property, and such proceeding or appointment shall not be vacated or within ninety (90) days after the institution or occurrence thereof; or The CAC is closed for more than three (3) consecutive months or if the CAC is closed for ',90 days during a twelve consecutive month period (1) unless such closing occurred as a result of Force Majeure as defined in Section 16.11 or (2) unless otherwise mutually approved by the parties pursuant to Section 16.06 contained herein. 'Section 14.02. Remedies. Each party hereto will have all remedies available at law or in equity o -iorce any of the terms and provisions hereof, including, but not limited to, actions at Iaw for ages and equitable actions seeking rescission of this Agreement and/or injunctive relief(mandatory 'cj' ckubitory) to prevent the breach or threatened breach of any term or provision thereof or to enforce de'performance of all terms and conditions of this Agreement. All remedies are cumulative; the exercise dmy one or more of them will not in any way alter or diminish the rights of the exercising parry to any ot5a remedy provided herein or at Iaw or in equity. Section 14.03. Avorneys' Fees. In the event of any breach or default by either parry of any of toe terms and conditions of this Agreement, the non-defaulting party.will be entitled to reimbursement from the defaulting party of all of its costs and expenses in enforcing any of the terms and conditions of tl6 Agreement, including all reasonable and necessary attorneys' fees incurred thereby. ARTICLE XV NancFs Except as otherwise provided in this Agreement, all notices, certificates, requests, requisitions, a'ether communications given pursuant to this Agreement must be in writing and will be sufficiently It"n and will be deemed given when mailed by certified mail, postage prepaid, addressed as follows: county: County Manager Orange County Government Services Center 200 S. Cameron Hillsborough, North Carolina 27278 8 „ 11 the Corporation: Orange County Community Activity 8704 Mourning Dove Road Corporation Raleigh, North Carolina 27615 Attention: President ARTICLE XVI N LKELI ANEO US Section 16.01. No Personal Liability. No member of the County Board of Commissioners or o&:r or employee of the County and no member, director, officer, or employee or agent of the C:1,1oration will have any personal liability for acts taken in accordance with this Agreement. Section 16.02. Amendment. This Agreement may not be modified or amended except by -smsequent written Agreement authorized by the governing bodies of each parry and signed by authorized reptcsentadves of both parties and any amendment to Articles III, IV or XIV or which is otherwise jb*se to the Owners of the 1994A Bonds must be approved in writing by the Owners of a majority in principal amount of the 1994A Bonds. Section 16.03. Entire Agreement. This instrument, including the Exhibits attached hereto, W=ins the entire Agreement between the parties, and no statement, oral or written, made by either parry or tgent of either party that is not contained in this written Agreement shall be valid or binding. Section 16.04. SeverabdLoy. If any of the provisions of this Agreement shall be held by a court d competent jurisdiction to be unconstitutional or unenforceable, the decision of such court shall not tffect or impair any of the remaining provisions of this Agreement, and the parties shall, to the extent icy deem to be appropriate, take such actions as are necessary to correct aay such unconstitutional or wmforceable provision. It is hereby declared to be the intent of the parties to this Agreement that this .Agreement would have been approved and executed had such an unconstitutional or unenforceable provision been excluded therefrom. Section 16.05. Cooperative Efforts. This Agreement shall be liberally construed in order to ;F®ote a harmonious relationship between the parties with regard to the management and operation of : ;,CAC. The Corporation accepts the relationship of trust and confidence established between the �poratioa and the County by this Agreement. The Corporation covenants with the County to furnish �S bat skill and judgment and to fully and effectively cooperate with the County to accomplish the p!�poses and objectives of this Agreement. If a problem arises that this Agreement does not directly or y address, the Corporation and the County agree to work with one another to determine a Y satisfactory solution Section-16.06. Approvals. Notwithstanding anything herein which may be to the contrary, all or consents required or permitted pursuant to this Agreement shall be in writing in order to be valid and binding. Section 16.07, Successors and Assigns. This Agreement shall be binding upon the heirs, resentatives, successors, and assigns of the parties hereto; provided, however, this provision het be deemed to authorize the assignment or other transfer of this Agreement which may only be fto 4hed as expressly provided in this Agreement. 9 • 12 se-con 16.08. Waiver. The failure of either party to insist upon a strict performance of any of for provisions of the Agreement, or to exercise any option, right, or remedy under the ,.shall not be construed as a waiver or as a relinquishment for the future of such term, O option, right, or remedy, but the same shall continue and remain in full force and effect. No y-either parry of any term or provision hereof shall be deemed to have been made unless writing and signed by the parry against whom the waiver is asserted. Section 16.09. Covenant of Furrher Assurances. The Corporation and the County agree that the date of execution hereof, each will, upon the request of the ocher, execute and deliver .:,r,�fter r docents and instn=ents and take such other actions as may be reasonably required to carry urpose and intent of this Agreement. Section 16.10. Choice of Law. This Agreement shall be deemed made is North Catalina. This ent shall be governed by and construed in accordance with the laws of the State of North All litigation arising out of this Agreement shall be brought in courts sitting in North Carolina, .yeaue in Orange County. Section 16.11. Force Majeure. In the event that the Corporation or the County is unable to perform the obligations of this Agreement, by reason of an act of',ad, war, riot, strike, insurrection, gexplosion, injunction, inability to obtain fuel, government a...ion, order or decree of any court, . jj pWty, or other cause beyond the control of the Corporation or the County, then the Corporation or �n'Caunty, as applicable, shall be excused from such failure to perform but shall recommence and omtlaue to perform promptly after removal or cessation of such cause of delay. [Remainder of this page intentionally left blank] 10 13 Section 16.12. Assignment. No assignment, delegation, transfer, or novation of this Agreement jji yp2n thereof shall be trade unless approved by both the Corporation and the County. The County xb*cdges and approves the assignment by the Corporation under the Indenture. Section 16.13. Duplicate Originals. This Agreement shall be executed by the parties hereto in e originals, each of which, when executed, shall constitute one and the same Agreement and one I(Ibich shall be retained by each parry. Section 16.14. Headings. The headings given to sections or paragraphs of this Agreement are for reference only, and shall not be construed to affect the meaning of this Agreement. IN W1TiYESS WHEREOF, the County has caused this Agreement to be approved in open session, idle resolution approving this Agreement is part of the minutes of the County, and the undersigned l Rids of the County have been authorized to execute this Agreement. The Corporation, likewise, has orar_d the execution of this Agreement by proper resolutions and its officers are authorized to execute Lit Agreement. Executed as of the Ist day of March, 1994. COUNTY OF ORk-LNGE, NORTH CAROLLNA By: Chairman, Board of Commission [Signatures Continued on Following Page] 10 14 (Counterpart Page of FacilitieslServices Agreement] ORANGE Couirry CO,',Dr NM ACTrvn-y CORPORATION Uc-,r-l1 c� President • 11 15 THIME WME NO PAGES 12 OR 13 Ili M BOLTUD COLTNTRACT) ' T 16 (Counterpart Page of Facilities/Services Agreement] �.li0YEI3: A � tSmt�r rn S.ioaaaq..Qt 14 17 .a EiaHBIT A OPEPLATI1i 1G iNfEltOPLk-NDTjM COUNTY OF ORANGE, NORTH C AROLLNA and ORANGE COUNTY COitiVYfUMTY ACTIVITY CORPORATION Contract Year: March 1, 1994 to February 2S, 1995 Section 1. Introduction. In the Facilities/Services Agreement dated as of March 1, 1994 (the ,•meat") between the County of Orange, North Carolina (the "County") and Orange County ymiiaity Activity Corporation(the "Corporation"), the County and the Corporation have provided for ition, construction and equipping of a Community Activity Center (the "CAC") and the stioII thereof for a period of tea (10) years. This Operating Memorandum establishes the further audings of the County and the Corporation as to the CAC and its operation on completion of ction thereof. Section 2. Construction of the CAC. The Corporation is responsible for all aspects of the spgalsitioa, construction and equipping of the CAC. The CAC shall be built in accordance with iitfbnally recognized standards for similar facilities. The Corporation has entered into a construction po mct.with(Name] dated as of the date hereof; the County is satisfied with the selection of[Name] to pafonn in accordance with the terms of the construction contract. The County will review the design si t,. . god specifications for the CAC and the architect's rendering with respect to the CAC and is satisfied with Lbe tepresentations of the CAC in such documents. The County has the right to inspect all construction ieiitcd documents on reasonable request therefor and to enter the site of the CAC during the hours that l ogeti to construction personnel to inspect the construction of the CAC as it progresses Section 3. Operation of the CAC. In connection with the operation of the CAC, the Corporation iltl. (a) retain or employ maintenance personnel who are trained and qualified to operate and maintain equipment, chemicals and supplies; to perform scheduled maintenance and to complete all periodic inspections associated with facilities such as the CAC; (b) retain or employ a facility tnanager and aquatics and skating directors and operators(1)meeting all specifications and qualifications required by national, state and local regulatory bodies or organizations whose standards are recognized in the aquatic and skating communities;and(2)experienced in operations of aquatic and skating centers of the size and scope of the CAC and (3) experienced in planning and implementing aquatics and skating instructional classes, innovative aquatic and skating programs and the schedule of activities proposed each year by the County Recreation and Parks Department; 18 (c) make the facilities and programs of the CAC available to the public without discrimination among users and in compliance with all equal employmendaffirmative action requirements imposed under national, state or local law; (d) establish fees and charges for the use of the CAC competitive with similar facilities located in the County, but with preferential fees and charges to residents of the County for all pool and skating uses and activities; (e) assist the County Recreation and Parks Department in providing special pool or skating activities at the CAC for its program participants; and (f) establish a schedule of hours, uses and activities for the pool and skating that is satisfactory to the County, with changes to such schedule to be made from time to time or in special circumstances through agreement between the Corporation and the County Recreation and Parks Department. The County and the Corporation acknowledge that atemporary closing under Section 3.03 of the .went is intended to permit closure only for major repairs to the CAC. Section 4. Operating Memorandum as Part of Agreement Between County and Corporation. AXbcugh denominated as an Operating Memorandum, and subject to annual review, this document is a *fof the Agreement and is to be interpreted as if incorporated verbatim into the Agreement. Section S. Term. This Operating Memorandum shall be for the contract year ending Ftbtuary 28, 1995, but shall renew annually unless the Counry and the Corporation agree to change the :pavisioas hereof. COUNTY OF ORANGE, NORTH CAROLLNA By: : = County'M ager :.'Clerk (Signatures Continued on Following Page] 2 - 19 [Counterpart Page of Operatina Memorandum] 7 O"NGE COUNTY CONwu-(ITY ACTIVITY CORPORATION +l l 1 President Secr#iry 3 E:(FIB IT d 20 C T.BO�tTB CJ►ROLINA XEMORANDuX OF AGYB'MG T TO COHOST LAID " Owums q1 n •-3 n r r r7 S )OD402ANDOX OF A&R ZKM TO CONOSY 1-UM (the "Memorandum") is made X X en as of , 1994 by and between ORANGE COUSIY C0K4UVITY [,,Ib O,RPOHATIOV, a nonprofit corporation duly incorporated under the > e State of North Carolina ("Seller"), and the COUNTY OF ORANGE, to--y IBA, a body politic and corporate existing under North Carolina haser"); r-y NITNESSETH: td a AS, Seller and Purchaser have entered into a Facilities/Services o t dated as of 1994, (the "Agreement") wherein Seller o tg7leed, among other things, to sell and convey to Purchaser, and Ca r has agreed to purchase and accept conveyance of that tract of 0 Orange County, North Carolina, more particularly described on attached hereto and incorporated herein by reference (the ,y rty11); and, Seller and Purchaser desire that the Memorandum be 2 arded in the Orange County, North Carolina Public Registry; K r M .i�BOFf, TSBREFORE, 13WW ALL MM( BY THESE PRESENTS, that Seller, in uideration of the mutual covenants and promises contained in the :eement .and for other good and valuable considerations, receipt of which hereby acknowledged, hereby grants unto Purchaser the right to purchase k `Property pursuant to the terms of the Agreement. The right to purchase 'b Property and the obligation to sell and convey the Property pursuant to t7 'Agreement shall not expire until the date provided in the Agreement 0 ch is after , but which date shall be no later than aty-one (21) years after the date of the death of the last surviving n ear descendant now living of Donald P. Ubell, Ashley L. Hogewood, Jr. H :Charles B. Lee, Jr., all of Mecklenburg County, North Carolina. MK i Iff WITNESS ►7HEREOF, the undersigned have caused this Memorandum to be :. ;executed and the seals affixed hereto on this day H 1994. V RR: PURCHASER: Ce tv COm= COIQNITT COIIHTY OF ORANGE, NOMM ?ITY CORPOR&TIOY CAROLI3TA ty By: President Chairman, Board of County Commissioners x T' ATTEST: By: Secretary Clerk (CORPORATE SEAL) (COUNTY SEAL] -� 21 MMBIT A TO }I6ORANDC Of AMEKKUT TO CONVEY LAHD g�gING Lote acres, more or less) as shown on plat entitled t. Surveyed for ORANGE COUNTY COh4dLTNZTY ATHLETIC CORP." recorded in ak 70, page 178 of the Orange County, North Carolina Public Registry. x2298.3 lIE94 ' 22 `-i F NORTH CAROLINA ag ORANGE day of 1994, personally came before who, being by me duly sworn, says that he is President of Orange County Community activity anon, a North Carolina nonprofit corporation, and that the seal to the foregoing instrument is the official seal of the ration, and that said writing was signed and sealed by him/her, in f of said corporation, by its authority duly given and he/she wledged the writing to be the act and deed of the corporation. Notary Public YM �,• anission Expires: OMY SEAL] M'OF NORTH CAROLINA MY OF ORANGE .*'g. .This day of , 1994, personally came before who, being by me duly sworn, acknowledged that the. is Chairman of the Board of County Commissioners of the County of age, North Carolina, and that by authority duly given and as an act of i"'body politic the foregoing instrument was signed in its name by its i'rman of the Board of County Commissioners, sealed with its seal and Iated by , as to the County of Is 29e, North Carolina. Notary Public ommission Expires: SEAL]