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HomeMy WebLinkAboutAgenda - 02-06-1995 - VIII-J f 1 ORANGE COUNTY BOARD OF COMMISSIONERS Action Agenda Item No. L=_-r ACTION AGENDA ITEM ABSTRACT Meeting Date: February 6,1995 SUBJECT: Lease renewal; Carrboro Plaza Driver License Bureau DEPARTMENT: PURCHASING AND CENTRAL SERVICES PUBLIC HEARING: YES: NO: X ATTACHMENT(S): INFORMATION CONTACT: PAM JONES, ext.2650 DRAFT LEASE Telephone Number- Hillsborough 732-8181 Chapel Hill 967-9251 Mebane 227-2031 Durham 688-7331 PURPOSE: To consider renewing a lease at Carrboro Plaza for space used by the North Carolina Department of Motor Vehicles as a satellite Driver License Bureau. BACKGROUND: In November,1986 the Commissioners approved a lease at Plantation Plaza(since renamed Carrboro Plaza)for the purpose of relocating the satellite office of the Driver License Bureau. The office had previously been located in the basement of Carrboro Town Hall,however,the Town's expanding office needs made it necessary to relocate the Driver License office. During the 1994 renewal negotiation process the State indicated a need for additional space, but could not identify funding to support such a move. The lease was extended for only one year in order to allow the State to obtain the additional funding needed to support the bigger leased premises. Since the State is unable at this time to commit funding for additinal space at the Carrboro site,the County has proceeded with renewal negotiations for the current leased premises. Although the Landlord has yet to review and return the attached recomended lease document, the Board is requested to approve the substance of the attached lease,contingent upon County Attorney and Staff review of any modifications which may be suggested by the Landlord. Should the modifications differ materially from the terms and conditions contained in the-attached lease, the matter will be brought before the Board for consideration. The major points of the attached lease are as follows: Leased Premises: 1,200 square feet Term: Three years Rent: $&W s t with CPI adjustments annually. Adjustments will be determined by utilizing the applicable indices determined by the United States Bureau of Labor Statistics through its Consumer Price Index entitled"United States City Averege4UI items-All Urban Consumers Index". Taxes,Insurance,Common Area Maintenance charges: $3.871s f. (Total County funds to support this lease,year 1 only:$14,244.) Utilities: The State will continue to pay for utilities. Maintenance: The County will continue to provide the same level of maintenance as in past lease years. Cleaning: The State will continue to pay for cleaning services. r • 2 Until the completion of the Southern Human Services Building,the Sheriff will continue to maintain a satellite office at this facility. RECOMMENDATION; The Manager recommends that the Board approve the lease renewal,contingent upon Attorney and Staff review,for a period of three years for space to be used as a satellite Driver Ucense Bureau at Carrboro Plaza;and authorize the Chair to sign on behalf of the Board. 3 STATE OF NORTH CAROLINA LEASE AGREEMENT COUNTY OF ORANGE THIS LEASE AGREEMENT,made and entered into this,the day of 6th day of February,1995,but effective February 1, 1995,by and between CARRBORO BELMAN S.C.LIIA=PARTNERSHIP,by Balfour Holdings,Inc.,General Partner,hereinafter referred to,as"LANDLORD",and COUNTY OF ORANGE,a body politic and corporate and a political subdivision of the State of North Carolina,hereinafter referred to as"COUNTY". W I T N E S S E T M 1. PREMISES. LANDLORD hereby leases to COUNTY and COUNTY leases from LANDLORD, for the term and upon the terms and conditions hereinafter set forth, the premises described in"EII1T A",attached hereto and made a part hereof containing approximately 1,200 square feet, hereinafter referred to as the "Premises". 2. TERM. The term of this Lease shall commence on February 1, 1995 ("Commencement Date") and shall continue for a period of three (3)years,with expiration at 12:00 midnight on January 31, 1998,unless sooner terminated as hereafter provided. 3. GUARANTEED MINIMUM RENTAL. The COUNTY agrees to pay to the LANDLORD at the office of the LANDLORD or at such other place designated by the LANDLORD, the guaranteed rental of $800 per month payable on or before the 1st day of each calendar month commencing with the Commencement Date. Effective on the first day of each Lease Year after the first Lease Year ("Adjustment Date"), the Guaranteed Minimum Rental shall be increased by the amount determined by multiplying the Initial Rental Rate by that percentage which represents any cost of living increase between the Commencement Date and the Adjustment Date. Such percentage shall be determined by utilizing the applicable indices determined by the United State Bureau of labor Statistics(or its successor organization)through its Consumer Price Index entitled "United States City Average-All items-All Urban Consumers Index". Such adjustment shall be made effective as of the Adjustment Date, as soon as possible after the index for the applicable month is published,with any deficiency due and payable with the next monthly installment of rental. Anything contained herein to the contrary notwithstanding, in the event that the adjustment would reduce the monthly rental from the monthly rental in effect for the preceding Lease Year, no such adjustment shall be made and the rental then in effect shall continue through the next Adjustment Date. Any other sums of money or charges to be paid by the COUNTY pursuant to the provisions of any other section of this Lease other than the Guaranteed Mimmum Rental shall be designated as "Additional Charges". 4. ADDMONAL CHARGES: In addition to and separate from the Minimum Rent, the COUNTY shall pay to the LANDLORD as Additional Charges, COUNTY'S Pro Rata Share of the Operating Expense Charges. Further,that amount consisting in the aggregate of Common Area Maintenance costs and taxes and shall be adjusted annually at the end of the LANDLORD's fiscal year. For purposes of this Lease, the following will describe and define the Operating Expense 4 Charge: (a)Common Area Maintenance: For each lease year during the term hereof LANDLORD will pay COUNTY's proportionate share of all common area maintenance charges and expenses. COUNTY's share shall be the total amount of such charges multiplied by the ratio that the square footage of COUN'TY's premises bears to the total square footage available for lease in the project. LANDLORD will provide a breakdown of all costs used in the determination of Common Area Maintenance assessment formula within thirty (30) days following effective date for new rate. Common Area Maintenance charges for the lease period are$2.27 per square foot, $227 per month, $2,724 per year. (b.) Taxes: LANDLORD shall pay COUNTY's proportional share of the ad valorem taxes assessed against the Shopping Center,with such share being determined in the ratio that the square footage of COUNTY"s leased premises bears to the total square footage available for lease in the Shopping Center. COUNTY shall pay as same shall become due any and all ad valorem taxes assessed against COUNTY's personal property located on the leased premises. 5. USE OF PREMISES.The COUNTY shall use the premises solely for offices of the Department of Motor Vehicles, Driver License Division, a satellite Sheriff office or similar governmental function. COUNTY shall not use or permit the premises to be used for any other purpose or purposes except with the prior written consent of the LANDLORD. LANDLORD acknowledges that the COUNTY will make available in the leased premises, a Driver License Bureau office, whose primary responsibilities are to test driving competency and to issue driver licenses. LANDLORD agrees to allow portions of the competency tests to be conducted on the parking area of the Shopping Center, as long as those tests do not constitute a hazard or violation of any of the foregoing rules and regulations. COUNTY covenants that it: (a) Will comply with all governmental laws, ordinances, regulations and requirements now in force or which hereafter may be in force, of any lawful governmental body or authority having jurisdiction over the premises; (b) Will keep the premises and every part thereof in a clean, neat and orderly condition; (c) Will in all respects and at all times hilly comply with all health and police regulations; and (d) Shall not permit or allow any waste, abuse or deterioration of the premises to occur, normal wear and tear excepted. 5 6. USE OF COMMON AREAS. Subject to regulations as established from time to time by LANDLORD, COUNTY in common with other tenants of LANDLORD and any designee of LANDLORD., shall have the nonexclusive right of use of the Common Areas of the Shopping Center. COUNTY,its subtenants,and assigns shall not solicit business or display merchandise in any of the Common Areas or distribute hand bills or any other advertising matter therein. LANDLORD shall have at all times exclusive right to control and manage the Common Areas and without limitation of LANDLORD's rights. LANDLORD may alter, remodel, change or close all or any portion of the Common Areas, including the parking areas to such an extent as may be necessary in the opinion of the LANDLORD and may grant,modify or terminate easements and other agreements pertaining to use and operation. LANDLORD may prohibit parking, passage of motor vehicles in areas previously designated for parking or passage and may erect additional buildings on Common Areas or change the location of the buildings, structures and other areas. 7. UTII11'IES. COUNTY shall ensure that all utility costs serving the leased premises are paid.. 8. MAINTENANCE. (a) COUNTY REPAIRS AND MAINTENANCE: COUNTY agrees to keep the leased premises in good condition and repair, excepting repairs which are the responsibility of the LANDLORD P tY or winch are made necessary by reason of fire and other unavoidable casualties covered by LANDLORD's fire and extended coverage insurance, and excepting reasonable wear and tear. Within such repair responsibilities of COUNTY shall be included: the walls and ceiling(including the painting thereof); repairs, maintenance of heating and air conditioning systems(cost not to exceed $2,000 per year);normal plumbing maintenance(including stoppage but does not include repair to water, drainage or sewer lines); normal minor electrical maintenance(cost not to exceed$500 per occurrence); maintenance of floor coverings. (b) LANDLORD's REPAIR AND MAINTENANCE: LANDLORD agrees to keep, repair and maintain the exterior of the building, including sidewalks, parking area, supply pipes for gas(if any) and water, drainage and sewer pipes (excluding stoppage), repairs of air conditioning and heating systems,plumbing and electrical above limits stipulated in County Repair and Maintenance. If any portion of the Leased Premises which is the responsibility of LANDLORD shall at any time be in need of repairs, LANDLORD will promptly repair same upon receipt of written notice from County to do so, except that LANDLORD shall not be obligated to make or pay for any repairs rendered necessary by the fault, act or negligence of County, or any of its agents, employees or business invitees. 9. COUNTY RUPROVEMENTS. COUNTY shall have the right to install, maintain and repair any improvements to the Premises which it desires, provided that all such work ("COUNTY Improvements")shall be approved by LANDLORD in advance, which consent shall not be unreasonably withheld or delayed. All such work shall be completed in accordance with applicable building codes and with proper building permits. Copies of any drawings shall be supplied to LANDLORD. All COUNTY Improvements shall become the property of the LANDLORD at the terminati on of this Lease,and the Premises shall be delivered to the LANDLORD at the termination 6 of this Lease in the same condition as exists after the completion of the COUNTY Improvements, ordinary wear and tear excepted. In the event that any COUNTY Improvements are done without the consent of the LANDLORD, then LANDLORD shall have the right at the termination of this Lease or at any time during the terns hereof to have such COUN'T'Y Improvements removed and the Premises restored to their original condition, all at the sole cost and expense of the COUNTY. 10. INSURANCE. LANDLORD shall procure and pay at its sole cost for insurance coverage insuring LANDLORD against loss of or damage to,the buildings located on Exhibit "A" (including the Premises) and the appurtenances by reason of fire or other casualty. 11. INSURANCE ON FIXTURES AND CONTENTS`V'VITII IN THE PREMISES. At all times during the term hereof COUNTY shall ensure that insurance coverage against vandalism and malicious mischief is kept in force to insure furniture,fixtures, equipment, and any other contents upon the Premises . 12. LiABIIdTY INSURANCE.COUNTY shall, during the entire term hereof, keep in full force and effect a policy of public liability and property damage insurance with respect to the Premises in which the combined single limit of such public liability and property damage shall be not less than $1,000,000. The policy shall name LANDLORD, any person, firms or corporations designated.by LANDLORD, and COUNTY as insured and shall contain a clause, provided COUNTY can procure such a clause,that the insurer will not cancel or change the insurance without first giving the LANDLORD (30) days prior written notice. The insurance shall be in an insurance company approved by LANDLORD,LANDLORD's approval not to be unreasonably withheld, and a copy of the policy or a certificate of insurance shall be delivered to LANDLORD. COUNTY may,with the approval of LANDLORD, which approval shall not be unreasonably withheld, satisfy this liability insurance requirement through"self insurance" or"pooled insurance, or some combination of self insurance, pooled insurance and commercial insurance as determined by COUNTY to be in COUNTY's best interest. LANDLORD shall have the right to withhold such approval in the event that COUNTY's bond rating decreases from it current level. 13. INDEMNITY. COUNTY will, to the extent permitted by law and to the extent provided through insurance policies owned by the COUNTY, indemnify LANDLORD and save it harmless from and against any and all claims, actions, damages, liability and expense in connection with loss of life,personal k juary and/or damage to property arising from or out of any occurrence in, upon or at the Premises, or the occupancy or use by COUNTY of the Premises or any part thereof, or occasioned wholly or in part by any act or omission of COUNTY, its agents, contractors, employees, servants,lessees or concessionaires. In case LANDLORD shall,without fault on its part, be made a party to any litigation commenced by or against COUNTY, then COUNTY shall, to the extent permitted by law and to the extent provided through insurance,protect and hold LANDLORD harmless and pay all costs, opmses and reasonable attorney's fees incurred or paid by LANDLORD in connection with such litigation. 14. SUBROGATION. Notwithstanding any other provision contained in this Lease, each of the parties hereby waives any rights it may have against the other party on account of any loss 7 or damage to its property which arises from any risk generally covered by fire and extended coverage insurance or any other insurance required to be carried hereunder,whether or not such other party may have been negligent or at fault in causing such loss or damage. Each of the parties shall obtain a clause or endorsement in the policies of such insurance which each party obtains in connection with the Premises to the effect that the insurer waives, or shall otherwise be denied, the right of subrogation against the other party for loss covered by such insurance. 15. DAMAGE TO PREMISES. If the leased premises shall be damaged by fire, the elements,unavoidable accident or other casualty, but are not thereby rendered untenantable in whole or in part, LANDLORD shall promptly at its own expense cause such damage to be repaired, and the rent shall not be abated; if by reason of such occurrence, the premises shall be rendered untenantable only part, LANDLORD shall promptly at its own expense cause such damage to be repaired, and the minimum rent meanwhile shall be abated proportionately as to the portion of the premises rendered untenantable;if by reason of such occurrence the premises shall be rendered wholly untenantable,LANDLORD shall promptly at its own expense cause such damage to be repaired, and the minimum anmual rent meanwhile shall be abated in whole, except that if at the time of such total destruction there shall be twenty-four months or less remaining of the term of this lease within ninety (90) days after said occurrence either COUNTY or LANDLORD at his option may give written notice that it has elected to terminate this lease, in which event the lease and the tenancy hereby created shall cease as of the date of said occurrence, and the minimum rental and the percentage rental shall be adjusted as of such date. Unless the parties shall otherwise agree in writing, LANDLORD shall have no interest in the proceeds of any insurance carried by the COUNTY on COUNTY'S interest in its lease and COUNTY shall have no interest in the proceeds of any insurance carried by LANDLORD. 16. CONDEMNATION. If any portion of the Premises shall be taken by the exercise of the power of eminent domain(or sold to the bolder of such power pursuant to a threatened taking) this Lease shall terminate upon such taking or when such sale is completed. COUNTY shall not be entitled to any part of the condemnation award or purchase price and COUNTY expressly waives any rights thereto; provided, however, nothing contained herein shall be construed to preclude the COUNTY from prosecuting any claim directly against the condemning authority in such condemnation proceeding for loss of business, or depreciation to, damage to or costs of removal of or for the value of COUNTY s trade fixtures, furniture, other personal property belonging to COUNTY, excluding the value,if any, of COUNTY's leasehold interest. 17. ASSIGNMENT. COUNTY shall not voluntarily,involuntarily or by operation of law, assign, transfer, mortgage or otherwise encumber (herein collectively referred to as an "ash")this Lease or any interest of COUNTY herein,in whole or in part, nor sublet the whole or any part of the Premises, nor permit the Premises or any part thereof to be used or occupied by others,without first obtaining in each and every instance the prior written consent of LANDLORD. LANDLORD acknowledges that although the County of Orange is the named tenant of this lease, the North Carolina Department of Motor Vehicles, Driver License Division, will be the principal occupant of the leased space. J 8 Consent of the LANDLORD may be conditioned upon the addition of a security deposit,late fees, restrictions on mechanics liens and similar requirements which have been waived under this Lease Agreement in,recognition of the governmental status and creditworthiness of the named COUNTY. If this Lease or any interest of COUNTY herein shall be assigned or, if the whole or any part of the leased premises shall be sublet or used or occupied by others, after having obtained LANDLORD's prior written consent thereto,COUNTY shall nevertheless remainn fully liable for the full performance of all obligations under this Lease to be performed by COUNTY and COUNTY shall not be released therefrom in any manner. 18. SURRENDER OF PREMISES. All trade fixtures installed by COUNTY in the Premises shall remain the property of COUNTY and be removable at any time, provided COUNTY be not in de nth at the time of any covenant of this Lease and shall promptly, and at its own expense, repair any damage to the Premises in removing any such trade fixtures. COUNTY shall, upon termination of the term hereof, or any earlier termination of this Lease for any cause, surrender all keys of the Premises to LANDLORD at the place then fixed for the payment of rent and surrender to LANDLORD the Premises. All alterations,improvements and other additions which may be made or installed by either party to, in,upon or about the Premises shall be the property of LANDLORD, and on such termination, shall be surrendered to LANDLORD by COUNTY without any damage, injury or disturbance thereto or payment therefor. COUNTY shall return the Demised Premises to their condition as on the commencement date hereof alterations, improvements and additions and ordinary wear and tear excepted. 19. DEFAULT. If the COUNTY shall continue in default in the payment of any rental or other sum of money becoming due hereunder for a period of ten(10) days after the same shall be due,or if either party hereto shall default in the performance of any other of the terms, conditions or covenants contained in this Lease to be observed or performed by it and the party in default does not remedy such default within thirty(30)days or commence such act or acts as shall be necessary to remedy the default within thirty(30) days and shall not complete such act or acts promptly, or if COUNTY shall cause this Lease to be taken under any writ of execution and such writ is not vacated or set aside within fifteen(15)days,then in any such event the party not in default shall have the right to terminate and cancel this Lease provided, however, that COUNTY shall not have the right to terminate and cancel this Lease Agreement unless and until it shall have given written notice, by registered or certified mail, of the def Wt by the LANDLORD to the holder or holders of any mortgage or deed of trust covering the Premises and shall have given said holder or holders thirty (30) days f rom the date of its receipt of such notice to cure such default, including time to obtain possession of the Premises by an expeditious trustee's sale or foreclosure action if this should be necessary to effict such cure, Should the LANDLORD elect to reenter and take possession as herein provided or should it re-enter to take possession pursuant to legal proceedings or pursuant to any notice provided for by law,LANDLORD may either terminate this Lease,or LANDLORD may, from time-to-time,without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the Premises or any part thereof for such term or terms(which may be f or a term extending beyond the term of this Lease)and at such rental or rentals and upon such other terms and conditions as LANDLORD in its sole discretion may deem advisable. Upon each such reletting all rentals received by LANDLORD from such reletting shall,be applied, first, to the payment of any 9 damages or indebtedness other than rent due hereunder from COUNTY to LANDLORD, second, to the payment of any debts and expenses of such reletting, including brokerage fees, attorney's fees and costs of such alterations and repairs,third,to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by LANDLORD and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month are less than that to be paid during that month by COUNTY hereunder, COUNTY shall promptly pay any such deficiency to LANDLORD. LANDLORD reserves the right to bring any action or legal proceeding for the recovery of any deficits remaining unpaid as LANDLORD may deem favorable, from time-to-time, without being obliged to wait until the end of the thereof or of any renewals or extensions thereof, for the final determination of COUNTY s account. No such re- entry or taking possession of said Premises by LANDLORD shall be construed as an election on LANDLORD's part to terminate this Lease unless a written notice of such intention be given to COUNTY by LANDLORD or unless the termination hereof be decreed by a Court of competent jurisdiction. Notwithstanding any such reletting without, termination, LANDLORD may at any time elect to terminate this Lease for any breach or default by COUNTY. COUNTY may also, upon giving LANDLORD notice and reasonable opportunity to remedy a breach or default, elect to terminate this Lease for such breach or default by LANDLORD, subject to the notification to LANDLORD'lender as heremabove set forth. Should LANDLORD or COUNTY at any time terminate this Lease for any breach or default, then, in addition to any other remedies LANDLORD or COUNTY may have, LANDLORD or COUNTY may recover from the other all damages incurred by reason of such breach,including the costs of recovering the Premises or vacating the Premises as the case may be, and reasonable attorney's fees. All indebtedness due LANDLORD by COUNTY, including the worth at the time of payment of the excess, if any, of the amount of all rent and other payments reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the Premises for the remainder of the stated term,all of which amounts shall be immediately due and payable from COUNTY to LANDLORD. In determining the reasonable rental value of the Premises for the remainder of the stated term, the value of the actual rental obligations of the COUNTY, if any, to whom the LANDLORD has relet the Premises, if commercially reasonable, shall be considered the then reasonable rental value. 20. LANDLORD'S RIGHT TO MORTGAGE AND SELL. Within twenty(20)days after request therefor by LANDLORD, or in the event that upon any sale, assignment, or hypothecation of the Premises and/or the land thereunder by LANDLORD, an estoppel certificate or similar statement shall be required from COUNTY, COUNTY agrees to deliver, in recordable form, a certificate to any proposed mortgagee or purchaser, or to LANDLORD certifying(if such be the case)that this Lease is in full force and effect and that there are no defenses or offsets thereto, or stating those claimed by COUNTY. This Lease is and shall be subject and subordinate at all times to the lien of any mortgages in any amount or amounts on all or any part of the land or buildings as shown on Exhibit "A" and to all ground or underlying leases which exist or may hereafter be executed affecting such land and buildings,or esthex thereof;ofwhich the Premises are a part, or on or against LANDLORD's interest 10 or estate therein, or any part of or interest in any of the foregoing, or on or against any ground or lease(and in all cases including all extensions, renewals, amendments and supplements to any ground or underlying lease or mortgage), without the necessity of the execution and delivery of any fiu they instruments on the part of COUNTY to effectuate such subordination. COUNTY covenants and agrees to execute and deliver upon demand such fiuther instruments evidencing such subordination of this Lease to any such ground or underlying lease and to the lien of any such mortgage as may be required by the LANDLORD. Notwithstanding anything heremabove contained, in the event the holder of any such mortgage or the LANDLORD under any such ground or underlying lease shall at any time elect to have this Lease constitute a prior or superior claim to its mortgage or lease,then and in such event upon any such mortgage holder or LANDLORD notifying COUNTY to that effect, this Lease shall be deemed prior and superior in lien to such mortgage or lease, as the case may be, irrespective of whether this Lease is dated prior to or subsequent to the date of such mortgage or lease. If LANDLORD enters into one or more concurrent or successive mortgages or ground or underlying leases and COUNTY is advised in writing of the name and address of the mortgagee or LANDLORD under such mortgage or ground or underlying lease, as the case may be, then this Lease shall not be terminated or canceled on account of any default by the LANDLORD in the performance of any of the terms, covenants,or conditions hereof on its part contained,until COUNTY shall have been given written notice of such default to such mortgagee or LANDLORD, specifying the default, and such mortgagee, LANDLORD or COUNTY shall have the right for thirty(30)days from the date of its receipt of such notice(and such reasonable additional time as is required to effect the cure with due diligence)to correct such default. COUNTY shall, in the event any proceedings are brought for the foreclosure of or in the event of exercise of the power of sale under any mortgage made by the LANDLORD covering the premises, attorn to the purchaser upon any such foreclosure or sale and recognized such purchaser as the LANDLORD under this Lease. The COUNTY, upon request of any party in interest, shall execute promptly such instruments or certificates to carry out the intent of this section as shall be requested by the LANDLORD. If twenty (20) days after the date of a written request by LANDLORD to execute such instruments, the COUNTY shall not have executed the same,the LANDLORD may, at its option, cancel this Lease without incurring any liability on account thereof, and the term hereby granted is expressly limited accordingly. LANDLORD shall have the right to convey, transfer or assign, by sale or otherwise, all or any part of its interest in this Lease, including the Premises, at any time and from time-to-time and to any person, subject to the terms and conditions of this Lease. All covenants and obligations of LANDLORD under this Lease shall cease upon the execution of such conveyance, transfer or assignnnent,but such covenants and obligations shall run with the land and shall be binding upon the subsequent owner thereof or of this Lease during the periods of their ownership thereof. 11 21. QUIET ENJOYMENT.Upon payment by the COUNTY of the rents herein provided and upon the observance and performance of all the covenants, terms and conditions on COUNTY's part to be observed and performed, COUNTY shall peaceably and quietly hold and enjoy the leased Premises for the term hereby demised without hindrance or interruption by LANDLORD or any other person or persons lawfully or equitably claiming by, through or under the LANDLORD, subject nevertheless, to the terms and conditions of this Lease. 22. ACCORD AND SATISFACTION. No payment by COUN'T'Y or receipt by LANDLORD of any amount less than is due hereunder shall be deemed to be other than payment towards or on account of the earliest portion of the amount then due, nor shall any endorsement or statement on any check or payment(or in any letter accompanying any check or payment)be deemed an "accord and satisfaction" (or payment in full), and LANDLORD may accept such check or payment without prejudice to LANDLORD's right to recover the balance of such amount or pursue any other remedy provided herein. 23. REMEDIES CUM L A TIVVE—NONWAIVER No remedy herein or otherwise conferred upon or reserved to LANDLORD or COUNTY shall be considered exclusive of any other remedy,but the same shall be distinct, separate and cumulative and shall be in addition to every other remedy given hereunder, or now or hereafter existing at law or in equity or by statute, and every power and remedy given by this Lease to LANDLORD or COUNTY may be exercised from time to time as often as occasion may arise, or as may be deemed expedient. No delay or omission of LANDLORD or COUNTY to exercise any right or power arising from any default on the part of the other shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence thereto. No provision of this Lease shall be deemed to have been waived by LANDLORD unless such waiver shall be in writing and is signed by LANDLORD and the acceptance of rent by LANDLORD shall not be deemed a waiver. 24. LANDLORD'S ENTRY. The LANDLORD shall have the right to enter upon the Premises at all reasonable times during the term of this Lease for the purposes of inspection, maintenance, repair and at mutually agreeable times for the purpose of alteration and to show the same to prospective tenants or purchasers. Any such entry shall require at least 24 hours prior notice in person or by telephone or facsimile, except in the event of an emergency, whereupon no notice shall be required. 25. BOLDING OVER If COUNTY remains in possession of the Premises or any part thereof after the expiration of the term of the Lease with LANDLORD's acquiescence and without any written agreement ate parties, COUN'T'Y shall be only a tenant at will, and there shall be no renewal of this Lease or exercise of an option by operation of law. During any such holdover, the Basic Minimum Rent due hereunder shall be 150'/0 of the amount set forth in Paragraph 3 hereof. 26. NATURE AND EXTENT OF AGREEMENT. This instrument contains the complete agreement of the parties regarding the terms and conditions of the Lease of the Premises, and there are no oral or written conditions, terms, understandings or other agreements pertaining thereto which have not been incorporated herein. This instrument creates only the relationship of 12 LANDLORD and COUNTY between the parties hereto as to the Premises; and nothing herein shall in any way be construed to impose upon either party hereto any obligations or restrictions not herein expressly set forth. The laws of the State of North Carolina shall govern the validity, interpretation, performance and enforcement of this Lease. 27. FORCE MAJEURE. In the event that LANDLORD or COUNTY shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of failure of power,restrictive governmental laws, regulations, orders or decrees, riots, insurrection, war, acts of God,inclement weather, or other reason of like or unlike nature or cause beyond LANDLORD's or COUNTY's control,then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 28. ATTORNEY FEES. In case suit shall be brought for recovery of possession of the Premises, for the recovery of rent or any other amount due under the provisions of this Lease or because of the breach of any other covenant herein contained on the part of either party to be kept or performed and a breach shall be established, the prevailing party shall be entitled to recover all expenses incurred therefor, including reasonable attorneys fees. 29. OPTION TO TERMINATE. This is a three(3)year lease. LANDLORD agrees that if COUNTY receives additional funding prior to lease termination, this lease can be transferred to gnewi' / 111"r- AW-10 � 30. PARTIAL INVALIDITY. If any term, covenant or condition of this Lease or the application thereof to any person or circumstances shall,to any extent,be invalid or unenforceable, the remainder of this Lease, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each terns,covenant or condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. 31. RECORDING. COUNTY shall not record this Lease without the written consent of LANDLORD, however, upon the request of either party hereto the other party shall join in the execution of a memorandum or so-called "short form" of this Lease shall describe the parties, the Lease Premises and the term of this Lease, ad shall incorporate this Lease by reference. 32. NUMBER AND GENDER The use herein of a singular term shall include the plural and use of the masculine, feminine or neuter genders shall include all others. 33. TIME OF ESSENCE: REASONABLENESS. Time is of the essence of this agreement. Anywhere in this Lease that LANDLORD's consent is required, such consent shall not be unreasonably withheld or delayed. 13 34. NOTICES. Any notice required to LANDLORD or COUNTY by the term of this Lem shall be deemed given and received on the date of the mailing of such notice in writing to the LANDLORD or COUNTY, as the case may be, provided such notice is transmitted by certified or registered mail,return receipt requested,postage prepaid, and addressed to the party due such notice as shown, or such other address as either LANDLORD or COUNTY may give in writing to the other for such notices: LANDLORD : Balfour Holdings, Inc. %Property Resources 333 Fayetteville Street Mall Suite 1000 Raleigh,NC 27601 COUNTY COUNTY OF ORANGE c/o Director of Purchasing and Central Services 132 East King Street PO Box 8181 Hillsborough,NC 27278 35. BINDING EFFECT. This Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 14 IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal as of the day and year first above written LANDLORD: CARRBORO BELMAN, S.C. Limited Partnership BY: BALFOUR HOLDINGS,INC. General Partner ATTEST: Secretary Spencer Waxman Vice President AFFIX CORPORATE SEAL COUNTY: ORANGE COUNTY Beverly A.Blythe,Clerk Moses Carty,Jr.,Chair Board of Commissioners Board of Commissioners 15 STATE OF COUNTY OF a Notary Public for said County and State, do hereby certify that a general partner in Balfour Holdings,Inc.,personally appeared before me this day and acknowledged the due execution of the foregoing instrument. Witness my hand and official seal,this the day of , 1994. Notary Public My Commission expires: STATE OF NORTH CAROLINA ORANGE COUNTY L a Notary Public for said County and State,do hereby certify that Beverly A.Blythe personally appeared before me this date and acknowledged that she is the Clerk to the Board of Commissioners of Orange County,and that by authority duly given and as the act of orange County,the foregoing instmmnent was signed in its name by Moses Carey,Jr.,Chair,sealed with its official seal,and attested by herself as its Clerk. Witness my hand and official seal,this the day of , 1994. Notary Public My Commission expires: