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HomeMy WebLinkAbout1996 NS Amendment to Facilities Services Agreement Community Activity Corporation Tats mss:tumoraA.s KESH MMAwrrat EN TM VAN M- 2�ay r�L -&L CcvEi vyFlxr aucaer Amo F'SCAL CCW=L AQ• K.—merit T. Cluvioui Fix=c=Ct:iar NOSTE CAROLINA COMMUMTY Am= CENTER Qe W(M COtnr-rr FAC XrrES/SZRV= AGRELN>ENT THIS AGP-PEWEYT(the "Agte.nat") =de and ant°red.inw as of the lst day of M=ch, 1994, .by arri becweea 0R.A2NGE COUNTY Coltisxxx4rrY ACrlvriY COR203ATLON (the "Corporadoa'), a 20aprofit cocporadoa duly incorporated under the laws of the Statc of Hersh Caralina, and the CocN-ry Of ObL Near, )!TORTS CAROLINA (the "County'), a body palitic and corporate existing ucdcr North Carolina taw: WITNESSETH: WHERVIIS, the Board of Cnrnmissioners of the Comity of Orange, North Carolina(the "Board") has determined that there is a need for a public swimtaiav pool accessible to all residents of the County; and - WIME4S, the Board has evaluated several options for providing a public swimming pool a=tssible to all resideurs of the County; and WREEPERS, the Board has appropriated an initial amount of&-r-ding for the constructioa of a public swinuning pool facility in the County's 1993-98 Capital Improvc:=ts Plea; and WHEREAS, the Corporation is a nonprofit organization authcdz--d to own, operate and massage *r==d=W activities in ttte County; and FaMZ .tS, the Corporation has proposed the construction of a Community Activity Center ('CAC"). which would include three swimming pools (the 'CAC Pools") and other facilities, including sa ice rink; and VA7EREAS, the Corporation proposes to finance construction of the CAC thteugh a *63-20' tiaancing(the"Corporation Finamdsig1)in which the Corporation would issue its own corporate debt(the '19%Bonds") i art Iade=re or Tnust dated as of Match 1, 1994 (the 'Indectu ) between the Corpandoon and First Union lNtadonal Bark of North C=ina and the County would not be liable for any payment of that debt; and %EER .S due to ocarsosnirs of scale Sad other factors, the Corporation would be able to provide and maintain the CAC Poais on a more efficiaat basis tbarc the County could if the County were to build and operate its own pool; and =r 4 TEEREAS, the County is authorized to make public expenditures for parks and recreation; and WI ERFAS, the County is authorized to contract with private entities for any public purpose; and WHEREAS, the County is authorized to enter into continuing, multiple-year agreements and md WIERFAS, the County has determined that it is in the best interest of the County that, instead and operating its own pool, the County contract with the Corporation to provide a public pool tonal 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 Kbe County hereby agree as follows: ARTICLE I PURPOSE OF AGRELNILN r; EsSE`jTIALM 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 FW an of the CAC Pools. ARTICLE II ENGAGE.NMNT Section 2.01. Engagement of the Corporation. The County hereby engages and retains the jb9cradoa 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 epernional 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 cod operate its own recreation facilities, as set forth in the Operating Memorandum attached hereto it 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). Fa will be paid in twelve equal monthly installments. The first monthly installment payment of the h due and payable on the first day the CAC is open for use by general public(the "Opening Date"}. =cd 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, 5 wg force and effect as if done on the nominal date provided herein, and no interest shall accrue after such nominal date. on 3.02. Security for Payment of the Fee. The payment obligation under this Agreement citzai obligation of the County, payable from the County's funds and from the earnings and all lved by the County From whatever source derived, to the extent that County's funds are le far 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. GEN. 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, recoupment, setoff, counterclaim, or t arising out of or related to the Agreement, including the temporary closing of the CAC for no !� thja,three (3) full consecutive months or the closing of the CAC for 90 days during a I2 motive month period. CIosing of the CAC for more than three (3) full consecutive months or the of the CAC for 90 days during a 12 consecutive month period will, however, effect a termination �.."'''" oreement unless otherwise mutually approved b the artier pursuant to Section 16.06 contained d(the:A, Y PF Y P P 1 .4 and if the cause of the termination was Force Majeure, the Agreement will automatically be wed when the CAC is again open. Section 3.04. Fee. The Fee shall cover payment for ail services to be provided under this rent 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. ARTICLE rV DURATION Section 4.01. Effective Date. This Agreement shall be effective when approved by the respective .ring bodies of each parry,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 ten :0-4:Yam from the Opening Date, as herein defined in Section 3.01. ARTICLE v PEIMN va, The Corporation shall employ a General Manager who shall serve at the sole expense of the � arazion and shall provide the active management of the CAC. The Corporation retains the right and bility to exercise frill control and supervision over its employees and their terms and conditions M a !oYment except as otherwise provided herein. Without limiting the generality of the foregoing, 3 L777 _ you shall be solely responsible for all matters relating to payment of its employees, including g and payment of employee taxes, insurance contributions, and the like. As between the d the- as an County,the Corporation will be responsible for its own acts and omissions and those ayees and subcontractors to the extent provided by law. ARTICLE VI NAME of RE k'noNsw T'he Corporation and the County agree that in the performance of this Agreement, the Corporation a —ractin g as an independent contractor. Nothing herein shall constitute or be construed to be or Vparmership, agency, joint venture or other similar relationship between the County and the y on. The Corporation agrees that it will not represent to anyone that its relationship to the � y,is other than that of independent contractor, and the County and the Corporation may so inform GS with whom they deal and may take any other reasonable steps to carry out the intent of this ARTICLE VII PRoEEiB= LNTusrs No member of the Board of Commissions of the County, or officer, or employee of the County, hislhcr tenure or for one 1 �dartug ( ) year thereafter, shall have any personal interest, direct or indirect, :la this Agreement or the benefits thereof. No Corporation officer, employee, or agent associated with '66z Agreement, and no Corporation officer, employee, or agent shall either solicit or accept gratuities, fii 6rs, or anything of material monetary value from vendors, suppliers, or subcontractors for his or her io Mduai benefit. ARTICLE VIII OPIIiA NG REVENUEs Until the debt obligations iaezzrred by the Corporation pursuant to the Corporation Financing have ,beea'.discharged, all revenues derived in any manner from or in comectioa with& operation of the GIC;'?whether from users or from any other sources whatsoever, shall be and remain from the initial , �fF,t.thereof, the property of the Corporation subject to the assignment thereof by the Corporation, L!Kung the assignment of the Few under the Indenture. , ' ARTICLE EK CovEVavrs, REPRES&YrATior4s, AND waxRaNTM Section 9.01. Covenants, Representations, and Warranties of the County. The County hereby : , represents, and warrants as follows. 4 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 necessary to assure the proper and continued receipt and expenditure of monies thereunder; (iii) The County will execute and deliver all such further instruments and tatie all such further cation 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 terns 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 agreement 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 �=ediately notify the Corporation if any such controversy or litigation is filed or threatened during the terra of this Agreement; (vi) 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 Bonds; 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 limitation set forth in N.C. GEN. STAT. $ 153A-149(c). Section 9.02. Covaamrts, Representations, and Warrandies of the Corporation. The Corporation A= ,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 execution and delivery of this Agreement; (it) 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, 5 8 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.other person affecting the right of the Corporation to execute or deliver this Agreement or to comply with its obligations under this Agreement. Neither the executica 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 not issue additional Indebtedness as defined in the Indenture without the approval of the County. ARTICLE X OWNMUE P OF PROPERTY; LLtitITHD OBLIGATION OF COUNTY All property of any type (real or personal) now or hereafter acquired at the expense of the Corporation for or in connection with the CAC shall be acquired in the name of, and be owned by, the C9iW.ration, provided, however, that (1) the Corporation may subject the property to a deed of trust P==to the Corporation Financing and(2)upon(a) payment in full of the Corporation Financing,and (b)Rquest by the County, the Corporation shall convey and transfer all such property to the County for W iddW0nal consideration by: (i) with respect to real property, a North Carolina Bar Form Special ,.�urantY Deed, subject only to matters of record existing as of the date of this Agreement, -ising in ecrzoa with road or utility easements and matters consented to by the County, and (u) with respect b pemonal Property, by bill of sale which includes warranties that the Corporation holds unencumbered then: The Corporation, as evidence of this Agreement to transfer and convey property to the . Y.°shall execute and deliver to the County a Memorandum of Agreement to Convey Land in ble form substaniagy in the form of Exhibit B to this AgreemeaL Notwithstanding anything to fi.,,, 7 in this Agreement or any other document, the rights of the County under this Agreement to tW �A- convey property shall in no event vest later than twenty-one(21)years after the date of the l hof the last surviving linear descendant now living of Donald P. Ubell, Ashley L. Hogewood, Jr., m-dC3arles B. Lam, Jr., all of Mecklenburg County, North Carolina. 6 i 9 ARTICLE XI LNSM-VOCE 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 •erage and limits of liability obtained shall be subject to approval by the County. ARTICLE Xn INDF"Ne IFICATION To the extent permitted by law, and further, to the extent of insurance policies owned by the Canty, the County shall indemnify, defend, and hold harmless the Corporation from and against any ni 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 minify, defend, and hold harmless the County from and against any and all claims or liabilities taluding reasonable attorneys' fees) arising out of or in connection with this Agreement where anbutable to the acts or omissions performed by the Corporation. ARTICLE XIII PERFoR�N.ANCE of GovEILY1-lE`tT FUNCTIONS Nothing contained in this Agreement shall be deemed or construed so as to in any way estop, f=at, or impair the County from exercising or performing any regulatory, policing, legislative, p tramental, or other powers or functions pursuant to applicable law. ARTICLE XIV DEFAULTS AND REMMIES Section 14.01. Definition of Event of Default. A. The County shall be deemed to be in default hereunder upon the happening of any of the Mining events of default: n The County fails to make payment of the Fee required under Section 3.01 when due; (1i) The County fails to budget appropriate money sufficient to pay the Fee coming due in the next 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 t 10 if its property, and such proceeding or appointment shall not be vacated or fully stayed within inety (90) days after the institution or occurrence thereof; or 'p) Any warranty, representation, or statement made by the County herein or in any ocher document executed or delivered in connection herewith is found to be incorrect or misleading in ;a y material respect on the date trade. ib, Ai, The Corporation shall be deemed to be in default hereunder upon the happening of any ouowing events of default: �""` (i) Any bankruptcy, insolvency, or reorganization proceeding or similar litigation is instituted inst the Corporation, or a receiver, custodian, or similar officer is appointed for the Swig rporation or any of its property, and such proceeding or appointment shall not be vacated or y stated within ninety (90) days after the institution or occurrence thereof; or (ii') The CAC is closed for more than three (3) consecutive months or if the CAC is closed for 'x,90 days during a twelve consecutive month period (1) unless such closing occurred as a result of Farce 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 n ;:rorce any of the terms and provisions hereof, including, but not limited to, actions at law for a6ges and equitable actions seeking rescission of this Agreement and/or injunctive relief(mandatory orprohibitory) to prevent the breach or threatened breach of any term or provision thereof or to enforce tbe`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 otia rcmcdy provided herein or at law or in equity. Section 14.03. Attorneys'Fees. In the event of any breach or default by either parry of any of metetms and conditions of this Agreement, the non-defaulting party.will be entitled to reimbursement fMM the defaulting parry of all of its cc= and expenses in enforcing any of the terms and conditions of thin Agreement, including all reasonable and necessary attorneys' fees incurred thereby. ARTICLE XV NOTIM Except as otherwise provided in this Agreement, all notices, certificates, requests, requisitions, or Other communications given pursuant to this Agreement must be in writing and will be sufficiently 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 ' Corporation: Orange County Cornmuaity Activity 8704 Mourning Dove Road Corp°ration Raleigh, North Carolina 27615 Attention: President ARTICLE XVI rVIL EEU.-ANEOUS Section 16.01. No Penonal Liability. No member of the County Board of Commissioners or „r or employee of the County and no member, director, officer, or employee or agent of the gvradon 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 =stquent written Agreement authorized by the governing bodies of each parry and signed by authorized nptWentatives of both parties and any amendment to Articles III, IN or XIV or which is otherwise grerse 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, .Cr7ains the entire Agreement between the parties, and no statement, oral or written, made by either party or igmt of either party that is not contained in this written Agreement shall be valid or binding. Section 16.04. SeverabilLoy. If any of the provisions of this Agreement shall be held by a court ai=npetent jurisdiction to be unconstitutional or unenforceable, the decision of such court shall not SE=or impair any of the remaining provisions of this Agreement, and the parties shall, to the extent &'deem to be appropriate, take such actions as are necessary to correct any such unconstitutional or V=forceable 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 ;emote a harmonious relationship between the parties with regard to the management and operation of The Corporation accepts the relationship of trust and confidence established between the ' oa and the County by this Agreement. The Corporation covenants with the County to furnish �S.best 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 uY satisf=ory solution. Section-16.06. Approvals. Notwithstanding anything herein which may be to the contrary, all bvais or consents required or permitted pursuant to this Agreement shall be in writing in order to be . erect valid and binding. Section 16 07. Successors and Assigns. This Agreement shall be binding upon the heirs, representatives, successors, and assigns of the parties hereto; provided, however, this provision *4'06t- be deemed to authorize the assignment or other transfer of this Agreement which may only be Rlished as expressly provided in this Agreement. 9 12 sdtion 16.08. Waiver. The failure of either parry to insist upon a strict performance of any of t'ar provisions of the Agreement, or to exercise any option, right, or remedy under the '.sbalI not be construed as a waiver or as a relinquishment for the future of such term, option, right, or remedy, but the same shall continue and remain in full force and effect. No y"either party of any term or provision hereof shall be deemed to have been made unless ;a writing and signed by the parry against whom the waiver is asserted. ,,Sccdon 16.09. Covenant of Further Assurances. The Corporation and the County agree that "after the date of execution hereof, each will, upon the request of the other, execute and deliver documents and instruments and take such other actions as may be reasonably required to carry .Purpose and intent of this Agreement. Section 16.10. Choice of Law. This Agreement shall be deemed made in North Carolina. This M�,,=�- eut shall be governed by and construed in accordance with the laws of the State of North Gtr ,;All litigation arising out of this Agreement shall be brought in courts sitting in North Carolina, ymue in Orange County. Section 16.11. Force Majeure. la the event that the Corporation or the County is unable to arm the obligations of this Agreement, by reason of an act of rod, war, riot, strike, insurrection, asKexplosion, injunction, inability to obtain fuel, government a--ion, order or decree of any court, . azlty, or other cause beyond the control of the Corporation or the County, then the Corporation or �j; unty, as applicable, shall be excused from such failure to perform but shall recommence and nue to perfoim 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 novacion of this Agreement jj*yFart thereof shall be trade unless approved by both the Corporation and the County. The County Skmwiedges and approves the assignment by the Corporation under the Indenrure. Section 16.13. Duplicate Originals. This Agreement shall be executed by the parties hereto in ,fie originals, each of which, when executed, shall constitute one and the same Agreement and one 192bich shall be retained by each parry. Section 16.14. Headings. The headings given to sections or paragraphs of this Agreement are #do:kd for reference only, and shall not be construed to affect the meaning of this Agreement. IN W=i SS WHEREOF, the County has caused this Agreement to be approved in open session, IM dac resolution approving this Agreement is part of the minutes of the County, and the undersigned ,0:bh of the County have been authorized to execute this Agreement. The Corporation, likewise, has *bximd the execution of this Agreement by proper resolutions and its officers are authorized to execute moment. Executed as of the 1st day of March, 1994. COUNTY OF 0"NiGE, NORTH CAROLLNA By: Chairman, Board of Commission [Signatures Continued on Following Pagel 10 14 (Counterpart Page of FacilitieslServices Agreement] ORANGE COUNTY CO,',D LNM ACiTViTY CORPORATION By: Ccl President �yioativ�a ' 11 15 (=E 'WERE NO PAGES 12 OR 13 IN THE BOUND COUNTRACT) 16 (Counterpart Page of Facilities/Services Agreement] *WYED: m L�oaaah..o+ 14 17 _i EXIHBIT A a OPEP—ATLi1G MEN1 fOFL,.YDUi1yf COUNTY OF O&kNGE, NORTH CAROLLNA and ORANGE COUNTY COi LNPJNITY ACTtVTTY CORPORATION Contract Year: March 1, 1994 to February 23, 1995 Section I. Introduction. In the Facilities/Services Agreement dated as of March 1, 1994 (the i.• ement") between the County of Orange, North Carolina (the "County") and Orange County q=ty Activity Corporation(the "Corporation"), the County and the Corporation have provided for wition, construction and equipping of a Community Activity Center (the "CAC") and the on thereof for a period of ten (10) years. This Operating Memorandum establishes the further jpjandings of the County and the Corporation as to the CAC and its operation on completion of ' uticrioa thereof. Section 2. Construction of the CAC. The Corporation is responsible for all aspects of the ,Xqt sition, construction and equipping of the CAC. The CAC shall be built in accordance with -ntlon 11y recognized standards for similar facilities. The Corporation has entered into a construction atwct;with(Name] dated as of the date hereof; the County is satisfied with the selection of(Name] to parform in accordance with the terms of the construction contract. The County will review the design u t�' ' and specifications for the CAC and the architect's rendering with respect to the CAC and is satisfied with 6:npresentations of the CAC is such documents. The County has the right to inspect all construction- itlittd documents on reasonable request therefor and to enter the site of the CAC during the hours that 0;Dona 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 t►Tili. (a) retain or employ maintenance personnel who are=Wed 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 manager 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; - t 18 (c) make the facilities and programs of the CAC available to the public without discrimination among users and in compliance with all equal employment/affirmative 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 Aemorandum as Part of Agreement Between County and Corporation. gbough 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 5. Term. This Operating Memorandum shall be for the contract year ending yslsiaary 28, 1995, but shall renew annually unless the County and the Corporation agree to change the pyls'ions hereof. COUNTY OF ORANGE, NORTH CAROLLNA P-41 By: "<;U4 X'/',/ County Amager Clerk [Signatures Continued on Following Page] 2 j 19 [Counterpart Page of Operating Memorandum] 3 - ORANGE COUNTY CONDIUNITY ACTIVITY CORPORATION l President Sacr ry 3 E.CdIB IT d 20 M O T$ CAROLINA XEXORABDU}X OF TO CONVEY LAND n p�C•E O r rh S }�pztA3IDUit OF AGREE34Ma TO CONVEY LAND (the "Memorandum") is made X X en as Df 1994 by and between ORANGE COU rX CCNNUNITY V H. Cppp02'LIOK, a nonprofit corporation duly incorporated under the > f �he State of North Carolina ("Seller") , and the COUNTY OF ORANGE, h C Oa na, a body politic and corporate existing under North Carolina z s purchaser") ; ty •Q,,• 1TISYESSETH: � a •� H ��RgAS, Seller and Purchaser have entered into a Facilities/Services o =saoeat dated as of 1994, (the "Agreement") wherein Seller o H �''av°sgreed, among other things, to sell and convey to Purchaser, and Ca user has agreed to purchase and accept conveyance of that tract of :Orange County, North Carolina, more particularly described on A attached hereto and incorporated herein by reference (the o tty#); and, Seller and Purchaser desire that the Memorandum be .arded in the Oranqe County, North Carolina Public Registry; ►< H '�-Y FOii, Tgxo FORE, KNOW ALL � BY THSSE PRESENTS, that Seller, in uideration of the mutual covenants and promises contained in the Ri .eemeut .and for other good and valuable considerations, receipt of which hereby acknowledged, hereby grants unto Purchaser the right to purchase 13 `Property pursuant to the terms of the Agreement. The right to purchase :Property and the obligation to sell and convey the Property pursuant to t7 r� 'Agreement shall not expire until the date provided in the Agreement 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 ear descendant now living of Donald P. Ubell, Ashley L. Hogewood, Jr. '3 ;Charles B. Lee, Jr., all of Mecklenburg County, North Carolina. MK 119 WI731ESS WEMREOF, the undersigned have caused this Memorandum to be x T'.-executed and the seals affixed hereto on this day H 1994. $$: PURCHASER: : X 9= COUNTY CONUMTY COUNTY OF ORANGE, NORSE 0 ?TTY CORPORATIOY CAROLIBA y W ✓- By: President Chairman, Board of x County Commissioners x 3T: ATTEST: By: Secretary Clerk [CORPORATE SEAL] [COUNTY SEAL] 21 r A ' UMBIT A TO )cZMRjHDCU OF AMMEK93T TO CONVEY I.XM g IHG Lote 1' 16.35 acres, more or less) as shoWn on plat entitled rtp surveyed for ORANGE COUNTY COMMUNITY ATHLETIC CORP." recorded in ak 70, page 178 of the Orange County, Worth Carolina Public Registry. X2248.3 11e44 `-i f gORTH CAROLINA pY ORANGE s — 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 g.ta the foregoing instrument is the official seal of the radon, and that said writing was signed and sealed by him/her, in f of said corporation, by its authority duly given and he/she dged the writing to be the act and deed of the corporation. L?- Notary Public �• ission Expires: VWY SEAL] 1.?` M OF NORTH CAROLINA =-Z OF ORANGE -This day of 1994, personally came before �` who, being by me duly sworn, acknowledged that sbe. is Chairman of the Hoard of County Commissioners of the County of N4, North Carolina, and that by authority duly given and as as act of ebody politic the foregoing instrument was signed in its name by its MR= of the Hoard of County Commissioners, sealed with its seal and fated by , as to the County of 590, North Carolina. cog: Notary Public �issioa S=pires: kly SEAL Ak