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HomeMy WebLinkAboutAgenda - 06-24-2008-4nnORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 24, 2008 Action Agenda Item No. 9"'r1n SUBJECT: Technical Amendment to Gateway Lease and Courtesy Review of Storm Sewer System and Gray Water System Maintenance Agreements DEPARTMENT: Purchasing and Central Services PUBLIC HEARING: (Y/N) No County Attorney ATTACHMENT(S): Amendment to Lease Agreement Storm Sewer Easement and Maintenance Agreement Gray Water System Easement and Maintenance Agreement INFORMATION CONTACT: Pam Jones (919) 245-2652 Geof Gledhill (919) 732-2196 PURPOSE: To consider technical amendments to the Gateway Center Lease for Suites 200 and 300 as recommended by the County Attorney and the attorney for the developer; and to receive information regarding the terms of easements and maintenance .agreements for on site storm sewer and the gray water systems. BACKGROUND: The County Attorney and the attorney for the developer of the Gateway Center determined that a technical amendment was necessary establishing the Gateway Center condominium units lease commencement date and conforming the Premises and Property descriptions to the final recorded documents creating the Premises and the Property. For example, the commencement date of the Lease approved by the Board in February 2007 cited the commencement date as "the date as of which all of the following occur: (1) the building is substantially complete, (2) the Premises Upfit is substantially complete (to be completed by the Lessor per Premises Upfit plans and specifications approved by the County and the Lessor, (3) the Plat and Plans of the Gateway Center Condominium and the Condominium Declaration have been recorded in the office of the Orange County Register of Deeds, (4) the Lessor has obtained the issuance of a Certificate of Occupancy for Condominium Unit 200 and Condominium Unit 300, and (5) the Lessor has delivered possession of Condominium Unit 200 and Condominium Unit 300 to the County." The Commencement Date in the Amendment to the Lease Agreement is cited as "February 19, 2008," the date all of the five contingencies were satisfied. Also included for the Board's courtesy review are easement and maintenance agreements for the storm sewer and gray water system on the campus. The County is at this time a party to neither agreement since it presently does not own any of the property cited in the Agreements. However, should the County purchase the Gateway Center suites as allowed by the Lease, and 2 when the County acquires the Office Building property, the Agreements will apply. The Developer therefore has given County staff and the Attorney the opportunity to provide comment and input in the formulation of the Agreements. FINANCIAL IMPACT: There is no financial impact associated with the technical amendments to the lease, nor the review of the maintenance agreements. However, at such time construction is completed on the office building and library and should the County choose to exercise the option to purchase Suites 200 and 300 in the Gateway Center reasonable maintenance costs will be incurred and included in future operating budgets for the Board's consideration. RECOMMENDATION(S): The Manager recommends that the Board approve the technical amendments to the Gateway Center lease as cited and receive the terms of the easements and maintenance agreements for the Storm Sewer and Gray Water Systems as information; and authorize the Chair to sign the Amendment to the Lease and any documents required to be signed related to the Storm Sewer and Gray Water easement and maintenance agreements on behalf of the Board. 0 AMENDMENT TO LEASE AGREEMENT THIS AMENDMENT TO LEASE AGREEMENT ("Amendment") is made and entered into effective as of February _, 2008 by and between TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company ("Lessor"), and ORANGE COUNTX, NORTH CAROLINA, a body politic and corporate and a political subdivision of the State of North Carolina ("Lessee"). WITNESSETH THAT: WHEREAS, Lessor and Lessee have made .and entered into that certain Lease Agreement (the "Lease") having an effective date of February 28, 2007 with respect to condominium units 200 and 300 located in the Gateway Center Condominium in Hillsborough, Orange County, North Carolina; and WFIEREAS, Lessor and Lessee desire to amend and/or modify certain provisions of the Lease as provided below. NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth in the Lease and hereinbelow and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee agree, covenant and bind themselves as follows: 1. Commencement Date. When and as used in this Amendment and in the Lease, the term "Commencement Date" shall mean February 19, 2008. 2. Condominium. When and as used in this Amendment and in the Lease, the term "Condominium" shall mean the Gateway Center Condominium, a commercial use condominium which shall consist of the Building, the Units and the other Common Elements as provided in the Plat and Plans and in the Condominium Declaration. 3. Condominium Declaration. When and as used in this Amendment and in the Lease, the term "Condominium Declaration" shall mean the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time. 4. Premises. When and as used in this Amendment and in the Lease, the term "Premises" shall mean those certain condominium units identified and described on the attached EXI-IlBIT B which is incorporated herein by this reference. 5. Pro e .When and as used in this Amendment and in the Lease, the term "Property" shall mean all of that certain tract or parcel of land located in Hillsborough, Orange County, North Carolina, and more particularly described on the attached EXFIIBIT A which is incorporated herein by this reference. 6.. No Other Amendments. Except to the limited extent expressly amended and/or modified in this Amendment, the Lease shall be and remain in full force and legal effect in accordance with its original terms. 7. Complete And Exclusive Agreement. Lessor and Lessee agree and understand that all prior negotiations, representations, understandings and agreements are merged into and do not survive the execution of the Lease as amended and/or modified by this Amendment. The parties expressly agree that the Lease, as amended and/or modified by this Amendment, including exhibits, is the sole, complete and exclusive statement of the terms of the parties' agreement and that no other negotiations, representations, 0 understandings, or agreements exist, except as may appear in the Lease as amended and//or modified by this Amendment. Furthermore, the parties agree that the written Lease, as amended and/or modified by this written Amendment, being the sole, complete and exclusive statement of the terms of the parties' agreement, is exclusive of any course of performance, course of dealing or usage of trade. 8. Governing Law. The legal effect and consequence of this Amendment shall be determined in accordance with the laws of the State of North Carolina. IN WITNESS WIIEREOF, each party has caused this Lease to be executed by its duly authorized representative(s) effective as of the day and year first above written. LESSOR: By: Telesis Construction Management, LLC, a North Carolina limited liability company George A. Horton, III, Member/Manager James W. Parker, Jr., Member/Manager By: (SIGNATURES CONTINUE ON NEXT PAGE] (SEAL) (SEAL) -2- 0 LESSEE: Orange County, North Carolina, a body politic and corporate and a political subdivision of the State of North Carolina By: Name: Title: [SIGNATURE PAGES CONCLUDE] 12925\01\M\106Amendment to Orange County Lease (02.19.08 WDB RL Draft #3) (SEAL) -3- 0 EXFLIBIT A THE PROPERTY Being all of recombined Lot 4, containing 1.35 acres, more or less, as shown on a plat of.survey recorded in Plat Book 103, Page 62, Orange County Registry, and being all of Lot 4 as shown on that certain plat of survey recorded in Plat Book 103, Page 20, and a part of Lot 5 as shown on that certain plat of survey recorded in Plat Book 102, Page 52, Orange County Registry, reference to which plats of survey is hereby made for a more particular description of such recombined Lot 4. -4- O EXIHBIT B THE PREMISES UNIT 200, GATEWAY CENTER CONDOMINIUM, a commercial condominium unit as identified and described in the plats and llans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"), and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time (the "Declaration"); together with (a) a 32.256% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class II, Class IV and Class V Limited Common Elements allocated to Unit 200 as provided in the Declaration and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 200 as provided in the Declaration. UNIT 300, GATEWAY CENTER CONDOMINIUM, a commercial condominium unit as identified and described in the plats and plans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"), and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time (the "Declaration"); together with (a) a 32.161% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class III, .Class IV and Class V Limited Common Elements allocated to Unit 300 as provided in the Declaration and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 300 as provided in the Declaration. -5- Prepared by and return to: William D. Bernard BROWN & BUNCH, PLLC 101 N. Columbia Street Chapel Hill, NC 27514 PIN STORM SEWER SYSTEM EASEMENT AND MAINTENANCE AGREEMENT THIS STORM SEWER SYSTEM EASEMENT AND 11'IAINTENANCE AGREEMENT ("Agreement") is made and entered into, effective as of the Date of Agreement (as hereinafter defined), by and between TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Suite 109, Hillsborough, North Carolina .27278 ("Telesis"); ENO RIVER PARING DECK, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Hillsborough, North Carolina 27278 ("Eno River"); HILLSBOROUGH COMIVJR7NTTY, LLC, a North Carolina limited liability company, 101 E. Weaver Street, Carrboro, North Carolina 27510 ("Hillsborough Community"), and GATEWAY CENTER CONDOMINIUM ASSOCIATION, INC., a North Carolina nonprofit corporation, 100 Corporate Drive, Suite 109, Hillsborough, North Carolina 27278 (the "Association"). STATEMENT OF PURPOSE Telesis is the record owner of two (2) condominium units located in the Gateway Center Condominium, Hillsborough, Orange County, North Carolina, identified and described on the attached EDIT B-2 and E~~IT B-3 which are incorporated herein by this reference (collectively "Units 200 and 300"). When and as used in this Agreement, the term "Condominium Units" shall mean Unit 100 and Units 200 and 300. Eno River is the record owner of that certain tract or parcel of land located in Hillsborough, Orange County, North Carolina, identified and described on the attached EDIT A which is incorporated herein by this reference (the "Parking Deck Tract"), Hillsborough Community is the record owner of a condominium unit located in the Gateway Center Condominium, Hillsborough, Orange County, North Carolina, identified and described on the attached E~~IT B-1 which is incorporated herein by this reference ("Unit 100"). Pursuant to the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as amended and/or modified from time to time (the "Declaration"), the Association has been delegated the power and authority, on behalf of the present and 1 future record owners of the Condominium Units, to oversee, manage, maintain and repair the Common Elements of the Gateway Center Condominium. When and as used in this Agreement, the term "Condominium" shall mean and refer to Gateway Center Condominium as defined and described in the Declazation. When and used in this Agreement, the term "Common Elements" shall have the meaning ascribed to it in the Declazation. In furtherance of the plan of development for the Parking Deck Tract and the Condominium, there have been or will be constructed on the Parking Deck Tract and the Common Elements certain culverts, collection lines and pipes, holding or collection tanks and other appurtenant improvements for the purposes of collecting, holding and discharging storm water from the Parking Deck Tract and the Condominium. When and as used in this Agreement, the term "Storm Sewer System" shall mean any and all of the above-described culverts, collection lines and pipes, holding and collection tanks and other appurtenant improvements located with the reciprocal easements granted and conveyed in Section 2 below. The parties to this Agreement desire to confirm and memorialize herein the respective easements, rights, duties and responsibilities of the present and future owners of the Parking Deck Tract and the Condominium Units with respect to the Storm Sewer System. AGREEMENT For and in consideration of the sum of One Dollar ($1.00), the terms, covenants and conditions set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties covenant and agree as follows: Section 1 Ownershiu. All of the components of the Storm Sewer System located in, under, on or upon the Parking Deck Tract are and at all times shall be a part of the Parking Deck Tract and shall be owned by the record owner of the Parking Deck Tract. All of the components of the Storm Sewer System located in, under, on or upon the Common Elements aze and at all times shall be a part of the Common Elements and shall be owned by the owners of the Condominium Units as provided in the Declazation. Section 2 Easements. Subject to the terms, conditions and limitations set forth in this Section and elsewhere in this Agreement, Telesis, Eno River and Hillsborough Community, for themselves and their respective successors and assigns, specifically including all future record owners of the Parking Deck Tract and each of the Condominium Units, hereby grant, bargain, sell and convey to one another and their respective successors and assigns, and all future record owners of the Parking Deck Tract and each of the Condominium Units, perpetual, non-exclusive reciprocal easements over and across those parts of the Parking Deck Tract and the Common Elements identified and described as `m1EW STORM SEWER EASEMENT" on that certain plat of survey recorded in Plat Book 102, Pages 53 and 54, Orange. County Registry, exclusive, however, of those areas designated as "STORM EASEMENT NO. l," "STORM EASEMENT NO. 2A," "STORM EASEMENT N0.2B," "STORM EASEMENT N0.3A" and "STORM EASEMENT N0.4C" as shown on that certain plat of survey recorded in Plat Book 102, Pages 53 and 54, Orange County Registry, and also exclusive of that azea designated as "STORM SEWER EASEMENT NO. D1-A2" as shown on that certain plat of survey recorded in Plat Book 103, Page 71, Orange County Registry, reference to which plats of survey is hereby made for more a particular description of the location and area of each such reciprocal easement. The sole and exclusive purposes of the reciprocal easements herein granted and conveyed to the present and future record owners of the Pazking Deck Tract and each of the Condominium Units shall be to (a) install and use the culverts, lines, pipes and other components of the Storm Sewer System for their intended purposes, and (b) maintain, repair and replace the culverts, lines, pipes and other components of the Storm Sewer System when and as reasonably necessary. -2- r© The foregoing reciprocal easements shall inure to the benefit of the present and future record owners of the Parking Deck Tract and each of the Condominium Units, their respective successors and assigns, and shall be appurtenant to and run with title to the Parking Deck Tract and each of the Condominium Units. TO HAVE AND TO HOLD the foregoing reciprocal easements and all privileges and appurtenances thereto belonging to the present and future record owners of the Parking Deck Tract and each of the Condominium Units as provided herein. The foregoing conveyance is made without warranty of any kind or nature. Section 3 Maintenance. a. The record owner of the Parking Deck Tract shall be responsible for, at its sole cost and expense, the operation, maintenance, repair and replacement of any and all components of the Storm Sewer System lying in, under, on or upon the Parking Deck Tract and shall, at all times, keep and maintain all components of the Storm Sewer System lying in, under on or upon the Parking Deck Tract in good and operable condition. In the event the record owner of the Parking Deck Tract shall fail to keep and maintain any component of the Storm Sewer System lying in, under, on or upon the Parking Deck Tract in good and operable condition, and shall fail to remedy any damage, defect or other inoperable condition in or to any such component of the Storm Sewer System within a reasonable time after receiving written notice of such damage, defect or inoperable condition from the record owner of any of the Condominium Units, or from the Association on behalf of the owners of the Condominium Units, the record owner of any of the Condominium Units, or the Association on behalf of the owners of the Condominium Units, may then and thereupon effect any reasonable and necessary maintenance, repair or replacement to or of the damaged, defective or inoperable component of the Storm Sewer System and charge the owner of the Parking Deck Tract the actual costs thereof. The record owner of the Parking Deck Tract shall pay all such costs, in full, within thirty (30) days after its receipt of a written statement itemizing such costs in reasonable detail. b. The record owners of the Condominium Units shall be jointly and severally responsible for, at their sole cost and expense as provided in the Declaration, the operation, maintenance, repair and replacement of any and all components of the Storm Sewer System lying in, under, on or upon the Common Elements and shall, at all times, keep and maintain all components of the Storm Sewer System lying in, under on or upon the Common Elements in good and operable condition. In the event the record owners of the Condominium Units, or the Association acting on their behalf, shall fail to keep and maintain any component of the Storm Sewer System lying in, under, on or upon the Common Elements in good and operable condition, and shall fail to remedy any damage, defect or other inoperable condition in or to any such component of the Storm Sewer System within a reasonable time after receiving written notice of such damage, defect or inoperable condition from the record owner of the Parking Deck Tract, the record owner of the Parking Deck Tract may then and thereupon effect any reasonable and necessary maintenance, repair or replacement to or of the damaged, defective or inoperable component of the Storm Sewer System and charge the owners of the Condominium Units and/or the Association the actual costs thereof. The record owners of the Condominium Units and/or the Association shall pay all such costs, in full, within thirty (30) days after their receipt of a written statement itemizing. such costs in reasonable detail. c. Notwithstanding the foregoing, the record owners of the Condominium Units, either individually or through the Association, and the record owner of Lot 3 shall cooperate to obtain and maintain in place a contract with an independent company for the periodic upkeep and maintenance of the Storm Sewer System in a commercially reasonable manner upon commercially reasonable terms. The costs of such contract shall be shared by the owners of the Condominium Units, or by the Association on behalf of the record owners of the Condominium Units, and the record owner of Lot 3 in such manner as the parties shall agree, in writing, consistent with the intent of this Agreement. -3- Section 4 Indemnification. a. The record owner of the Parking Deck Tract shall indemnify and hold the record owners of the Condominium Units and the Association, and their respective successors and assigns, harmless from and against any loss, damage, expense and/or liability, including court costs and reasonable attorneys' fees, incurred or suffered by any one or more of the record owners of the Condominium Units or the Association, or their respective successors and assigns, as a consequence of (i) any damage, repair or alteration to any part of the Condominium resulting from any failure on the part of the record owner of the Parking Deck Tract to maintain the components of the Storm Sewer System lying in, under, on or upon the Parking Deck Tract in good and operable condition, or (ii) any failure on the part of record owner of the Parking Deck Tract to comply with any provision of this Agreement. b. The record owners of the Condominium Units and/or the Association shall indemnify and hold the record owner of the Parking Deck Tract, and its successors and assigns, harmless from and against any loss, damage, expense and/or liability, including court costs and reasonable attorneys' fees, incurred or suffered by the record owner of the Parking Deck Tract, or its successors and assigns, as a consequence of (i) any damage, repair or alteration to any part of the Parking Deck Tract resulting from any failure on the part of the record owners of the Condominium Units or the Association to maintain the components of the Storm Sewer System lying in, under, on or upon the Common Elements in good and operable condition, or (ii) any failure on the part of by the record owners of the Condominium Units and/or the Association to comply with any provision of this Agreement. Section 5 Amendment. This Agreement may be modified, amended or terminated only by a written agreement signed by the record owner of the Parking Deck Tract, the record owners of the Condominium Units and the Association recorded in the Office of the Register of Deeds of Orange County, North Carolina. Section 6 The Association. The Association joins in the execution of this Agreement for the purpose of acknowledging and consenting to the easements, duties and responsibilities set forth in this Agreement pertinent to the Condominium, the record owners of the Condominium Units and/or the Association. Section 7 Governing Law and Jurisdiction. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of North Carolina. Any action to construe or interpret any provision of this Agreement or to enforce any right or remedy hereunder shall be brought in the Superior Court of Orange County, North Carolina or in the United States District Court for the Middle District of North Carolina. Each of the parties hereto hereby consents to the exclusive jurisdiction and venue of such COUrtS. Section 8 Date of Agreement. The Date of Agreement shall be the date as of which all parties shall have executed this Agreement as indicated below. IN WITNESS W~REOF, each party has caused this Agreement to be executed by its duly authorized representative(s) as of the day and year indicated below. [SIGNAT'UItES BEGIN ON NEXT PAGE] -4- ~ot TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company By: (SEAL) George A. Horton, III, Member/Manager By: (SEAL) James W. Parker, Jr., Member/Manager STATE OF NORTH CAROLINA COUNTY OF I, , a Notary Public of the State and County aforesaid, do hereby certify that George A. Horton, III, a Member/Manager of TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company, personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of , 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] STATE OF NORTH CAROLINA COUNTY OF Typed or Printed Name of Notary Public I, a Notary Public of the State and County aforesaid, do hereby certify that James W. Parker, Jr., a Member/Manager of TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company; personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for.the purposes therein expressed. Witness my hand and official stamp or seal, this the day of , 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public -5- f~ By: ENO RIVER PARHING DECK, LLC, a North Carolina limited liability company George A. Horton, IlI, Member/Manager (SEAL) By: STATE OF NORTH CAROLINA COUNTY OF James W. Parker, Jr., Member/Manager (SEAL) I, , a Notary Public of the State and County aforesaid, do hereby certify that George A. Horton, III, aMember/Manager of ENO RIVER PARI~IVG DECK, LLC, a North Carolina limited liability company, personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public STATE OF NORTH CAROLINA COUNTY OF I, , a Notary Public of the State and County aforesaid, do hereby certify that James W. Parker, 7r., a Member/Manager of ENO FIVER PARING DECK, LLC, a North Carolina limited liability company, personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public -6- /~ HILLSOROUGH COMiVIU1viTY, LLC, a North Cazolina limited liability company By: (SEAL) Ruffm Slater, Manager STATE OF NORTH CAROLINA COUNTY OF I, a Notary Public of the State and County aforesaid, do hereby certify that Ruffm Slater, Manager of HILLSBOROUGH COMiV][IJN][TY, LLC, a North Carolina limited liability company, personally appeazed before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of , 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notazy Public -7- l~ GATEWAY ASOCIATION, corporation By: George A. Horton, III, President STATE OF NORTH CAROLINA COUNTY OF (SEAL) I, , a Notary Public of the State and County aforesaid, do hereby certify that George A. Horton, IlI, President of GATEWAY CENTER CONDOlVIINILJNI ASSOCIATION, INC., a North Carolina nonprofit corporation, personally appeared before me this day and acknowledged his/her voluntary execution of the .foregoing instrument for and as the act of the corporation for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of ,2008. My Commission expires: [A~x Notarial Stamp or Seal] CENTER CONDOMIlVIUM INC., a North Carolina nonprofit Notary Public Typed or Printed Name of Notary Public 12925\Oi\M\112Storm Sewer System Easement and Maintenance Agreement (05.05.08 WDB RL Draft #4) -8- f~ E~~IT A PARING DECK TRACT Being all of Lot 3, containing 1.00 acre, more or less, as shown on that certain plat of survey recorded in Plat Book 103, Page 20, Orange County Registry, reference to which plat of survey is hereby made for a more particular description of Lot 3. -9- ~~ EDIT B-1 UNIT 100, GATEWAY CENTER COND011ZI]vIU1Vl, acommercial condominium unit as identified and described in the plats and plans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"), and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time (the "Declaration"); TOGETHER WITH (a) a 35.583% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class I and Class V Limited Common Elements allocated to Unit 100 as provided in the Declaration and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 100 as provided in the Declaration. EZ~~IT B-2 UNIT 200, GATEWAY CENTER CONDOMINIITIVI, a commercial condominium unit as identified and, described in the plats and plans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"); and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time (the "Declaration"); TOGETHER WITH (a) a 32.256% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class 1; Class II, Class IV and Class V Limited Common Elements allocated to Unit 200 as provided in the Declaration and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 200 as provided in the Declaration. EZ~IT B-3 UNiT 300, GATEWAY CENTER CONDONIINTiTM, a commercial condominium unit as identified and described in the plats and plans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"), and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time (the "Declaration"); TOGETHER WITH (a) a 32.161% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class III, Class N and Class V Limited Common Elements allocated to Unit 300 as provided in the Declaration and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 300 as provided in the Declaration. -10- 1S Prepared by and return to: William D. Bernard BROWN & BUNCH, PLLC 101 N. Columbia Street Chapel Hill, NC 27514 PIN GRAY WATER SYSTEM EASEMENT AND MAINTENANCE AGREEMENT THIS GRAY WATER SYSTEM EASEMENT AND MAIlVTENANCE AGREEMENT ("Agreement") is made and entered into, effective as of the Date of Agreement (as hereinafter defined), by and between TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Suite 109, Hillsborough, North Carolina 27278 ("Telesis"); ENO RIMER PARING DECK, LLC, a North Carolina limited liability company, 1000 Corporate Drive, Hillsborough, North Carolina 27278 ("Eno River"); HH.L5BOROUGH COMMUNITY, LLC, a North Carolina limited liability company, 101 E. Weaver Street, Carrboro, North Carolina 27510 ("Hillsborough Community"), and GATEWAY CENTER CONDOMIlVIITM ASSOCIATION, INC., a North Carolina nonprofit corporation, 100 Corporate Drive, Suite 109, Hillsborough, North Carolina 27278 (the "Association").. STATEMENT OF PURPOSE Telesis is the record owner of that certain tract or parcel of land located in Hillsborough, Orange County, North Carolina, identified and described on the attached E~~IT A which is incorporated herein by this reference (the "O~ce Building Tract"). Eno River.is the record owner of that certain tract or parcel of land located in Hillsborough, Orange County, North Carolina, identified and described on the attached EDIT B which is incorporated herein by this reference (the "Parking Deck Tract"), Hillsborough Community is the record owner of a condominium unit located in the Gateway Center Condominium, Hillsborough, Orange County, North Carolina, identified and described on the attached EDIT C-1 which is incorporated herein by this reference ("Unit 100"). Telesis is also the record owner of two (2) condominium units located in the Gateway Center Condominium, Hillsborough, Orange County, North Carolina, identified and described on the attached EI~~IT C-2 and E~~TT C-3 which are incorporated herein by this reference (collectively "Units 200 and 300"). When and as used in this Agreement, the term "Condominium Units" shall mean Unit 100 and Units 200 and 300. l ~1 Pursuant to the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as amended and/or modified from time to time (the "Declaration"), the Association has been delegated the power and authority, on behalf of the present and future record owners of the Condominium Units, to oversee, manage, maintain and repair the Common Elements of the Gateway Center Condominium. When and as used in this Agreement, the term "Condominium" shall mean and refer to Gateway Center Condominium as defined and described in the Declaration. When and used in this Agreement, the term "Common Elements" shall have the meaning ascribed to it in the Declaration. In furtherance of the plan of development for the Office Building Tract, the Parking Deck Tract and the Condominium, (i) there have been or will be constructed in, on, under or upon the Office Building Tract certain collection lines and/or pipes, tanks, filters, pumps and other equipment and/or installations necessary to collect, store, filter and pump gray water received from the Office Building Tract and the Condominium for re-use on the Office Building Tract, and (ii) there have been or will be installed in, on, under or upon the Parking Deck Tract and the Common Elements certain shut-off valves, lines and/or pipes and other appurtenant installations for the purpose of collecting gray water from the Condominium and transporting such gray water to .the collection tank(s) located on the Office Building Tract (the "Collection Lines"). When and as used in this Agreement, the term "Gray Water System" shall mean any and all of the above-described collection lines and/or pipes, shut-off valves, tanks, filters, pumps and other equipment and/or installations, whether located in, on, under or upon the Office Building Tract or in, on, under or upon any part of the easement area granted and conveyed to the owner of the Office Building Tract in Section 2 below. The parties to this Agreement desire to confirm and memorialize herein the respective easements, rights, duties and responsibilities of the present and future owners of the Office Building Tract, the Parking Deck Tract and the Condominium Units with respect to the Gray Water System. AGREEMENT For and in consideration of the sum of One Dollar ($1.00), the terms, covenants and conditions set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties covenant and agree as follows: Section 1 Ownership. All of the. Gray Water System, specifically including the Collection Lines (which Collection Lines ,shall begin at and include the shut-off value(s) located on the Common Elements and run to the Office Building Tract through the easement area granted and conveyed in Section 2 below), is appurtenant to the Office Building Tract and shall be owned by the record owner of the Office Building Tract. Each line or pipe running from each shut-off valve located on the Common Elements to and/or through any building constituting a part of the Condominium shall be a part of the Common Elements and shall be owned by the owners of the Condominium Units as provided in the Declaration. Section 2 Easements. Subject to the terms, conditions and limitations set forth in this Section and elsewhere in this Agreement, Telesis, Eno River and Hillsborough Community, for themselves, their respective successors and assigns, and all future record owners of the Parking Deck Tract and the Condominium Units, hereby grant, bargain, sell and convey to Telesis, its successors and assigns, and each future record owner of the Office Building Tract, perpetual non-exclusive easements over and across all of those parts of the Parking Deck Tract and the Common Elements identified and described as "NEW ORANGE CO. GRAY WATER EASEMENT" and, specifically, as "NEW ORANGE CO. 10' GRAY WATER EASEMENT NO. 1" and "NEW ORANGE CO. 10' GRAY WATER EASEMENT NO. 2" as shown on those certain plats of survey recorded in Plat Book 103, Pages 20 and 21, Orange County Registry, -2- ~6 reference to which plats of survey is hereby made for a more particular description of the location and dimensions of each such easement. The sole and exclusive purposes of the easements herein granted and conveyed to Telesis and each future record owner•of the Office Building Tract shall be to (a) install and use the Collection Lines for their intended purpose, (b) provide access to the Parking Deck Tract and the Common Elements to the record owner of the Office Building Tract and such owner's employees, contractors and subcontractors to maintain, repair and replace the Collection Lines as provided in Section 3 below, and (c) provide the record owner of the Office Building Tract and such owner's employees, contractors and subcontractors access to the Parking Deck Tract and the Common Elements to temporarily or permanently disconnect or shut-off any one or more of the Collection lines as provided in Section 4 below. The foregoing easements shall inure to the benefit of Telesis, its successors and assigns, and each future record owner of the Office Building Tract, and shall be appurtenant to and run with title to the Office Building Tract. TO HAVE AND TO HOLD the foregoing easements and all privileges and appurtenances thereto belonging to Telesis and each future owner of the Office Building Tract as provided herein. The foregoing conveyance is made without warranty of any kind or nature. Section 3 Maintenance. a. The record owner of the Office Building Tract shall be responsible for, at its sole cost and expense, the operation, upkeep, maintenance, repair and replacement of any and all components of the Gray Water System, including the Collection Lines. The record owner of the Office Building Tract shall at all times keep and maintain all components of the Gray Water System, including the Collection Lines, in good and operable condition. Any installation, maintenance, repair or replacement of any Collection Lines shall (i) occur only after the record owner of the Office Building Tract shall have delivered reasonable prior written notice of any such installation, maintenance, repair or replacement to the record owner of the Parking Deck Tract (in the event of any installation, maintenance, repair or replacement of any Collection Lines located in, on, under or upon the Parking Deck Tract) and/or to the Association (in the event of any installation, maintenance, repair or replacement of any Collection Lines located in, on, under or upon the Common Elements), as applicable, and (ii) be accomplished in a manner that will not unreasonably or unnecessarily interfere with the use of the Parking Deck Tract or the Common Elements by the respective owners thereof and such owners' employees, patrons, customers, contractors, guests, invitees and licensees. The record owner of the Office Building Tract shall make a good faith and reasonable effort to at all times fulfill its upkeep and maintenance obligations as set forth in this paragraph by maintaining in place, at its sole cost.and expense, a contract with an independent company for the periodic upkeep and maintenance of the Gray Water System in a commercially reasonable manner. b. Notwithstanding foregoing, the record owner of the Parking Deck Tract shall be responsible for, at its sole cost and expense, the repair or replacement of any Collection Lines located in, on, under or upon the Parking Deck Tract which are damaged as a consequence of the act of such owner or such owner's employees, patrons, customers, contractors, guests, invitees or licensees. o. Notwithstanding the foregoing, the record owners of the Condominium Units and the Association, as applicable, shall be responsible for, at its/their sole cost and expense, (i) the repair or replacement of any Collection Lines located in, on, under or upon any part of the Common Elements which are damaged as a consequence of the act of any such owner or the Association, or the employees, patrons, customers, contractors, guests, invitees or licensees of any such owner or the Association; and (ii) the operation, maintenance, repair and replacement of any and all gray water collection pipes and/or lines n,nning from each shut-off valve to and/or through any building constituting a part of the Condominium, and any appurtenant installations. The record owners of the Condominium Units, and the Association, shall at all -3- ~~ times keep and maintain all such pipes and/or lines and appurtenant installations in good and operable condition. Section 4 Disconnection or Shut-off of Collection Lines. Notwithstanding any provision contained in this Agreement to the contrary, the record owner of the Office Building Tract shall have the right, at any time, in its sole discretion, to temporarily or permanently disconnect or shut-off any one or more of the Collection Lines. Any disconnection or shut-off of any one or more of the Collection Lines shall be accomplished by the record owner of the Office Building Tract (or its contractor or subcontractor), at its sole cost and expense, in an appropriate manner and at an existing shut-off valve or other appropriate location. Any disconnect or shut-off of any one or more Collection Lines shall occur only after the record owner of the Office Building Tract shall have delivered reasonable prior written notice of any such disconnection or shut- off to the Association, and shall be accomplished in a manner that will not unreasonably or unnecessarily interfere with the use of the Common Elements by the respective owners of the Condominium Units and such owners' employees, patrons, customers, contractors, guests, invitees and licensees. Section 5 Indemnification. a. The record owner of the Office Building Tract shall indemnify and hold harmless the record owners of the Parking Deck Tract and the Condominium Units, and their respective successors and assigns, from and against any loss, damage, expense and/or liability, including court costs and reasonable attorneys' fees, incurred or suffered by any one or more of the record owners of the Parking Deck Tract and the Condominium Units, or their respective successors and assigns, as a consequence of any damage, repair or alteration to any part of the Parking Deck Tract or the Condominium resulting from any failure on the part of the record owner of the Office Building Tract to (i) maintain the Gray Water System, including the Collection Lines, in good and operable condition as required in Section 3 above, or (ii) repair, replace, disconnect or shut-off any Collection Lines in an appropriate manner as required in Section 3 or Section 4 above, or (iii) comply with any other provision of this Agreement. b. The record owner of the Parking Deck Tract shall indemnify and hold harmless the record owners of the Office Building Tract and the Condominium Units, and their respective successors and assigns, from and against any loss, damage, expense and/or liability, including court costs and reasonable attorneys' fees, incurred or suffered by any one or more of the record owners of the Office Building Tract and the Condominium Units, or their respective successors and assigns, as a consequence of any damage to any Collection Lines located in, on or upon the Parking Deck Tract resulting from (i) any act of the record owner of the Parking Deck Tract or any such owner's employees, patrons, customers, contractors, guests, invitees or licensees, or (ii) any failure on the part of the record owner of the Parking Deck Tract to comply with any provision of this Agreement. c. The record owner of each of the Condominium Units, and/or the Association, as applicable, shall indemnify and hold harmless the record owners of the Office Building Tract and the Parking Deck Tract, and their respective successors and assigns, from and against any loss, damage, expense and/or liability, including court costs and reasonable attorneys' fees, incurred or suffered by any one or more of the record owners of the Office Building Tract and the Parking Deck Tract, or their respective successors and assigns, as a consequence of any damage to any Collection Lines located in, on or upon the Common Elements resulting from (i) any act of such record owner or such owner's employees, patrons, customers, contractors, guests, invitees or licensees, or (ii) any failure of the record owners of the Condominium Units, or the Association, to keep and maintain all pipes and/or lines and appurtenant installations in good and operable condition as required in Section 3 above, or (iii) any failure on the part of the record owners of the Condominium Units, or the Association, to comply with any other provision of this Agreement.. -4- Section 6 Amendment. This Agreement may be modified, amended or terminated only by a written agreement signed by the record owner of the Office Building Tract, the record owner of the Parking Deck Tract, the record owners of the Condominium Units and the Association recorded in the Office of the Register of Deeds of Orange County, North Carolina. Section 7 The Association. The Association joins in the execution of this Agreement for the purpose of acknowledging the easements, duties and responsibilities set forth in this Agreement pertinent to the Condominium, the record owners of the Condominium Units andlor the Association. Section 8 Governing Law and Jurisdiction. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of North Carolina. Any action to construe or interpret any provision of this Agreement or to enforce any right or remedy hereunder shall be brought in the Superior Court of Orange County, North Carolina or in the United States District Court for the Middle District of North Carolina. Each of the parties hereto hereby consents to the exclusive jurisdiction and venue of such courts. Section 9 Date of Agreement. The Date of Agreement shall be the date as of which all parties shall have executed this Agreement as indicated below. IN `'VITIYJESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized representative(s) as of the day and year indicated below. TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company By: (SEAL) George A. Horton, III, Member/Manager By: (SEAL) James W. Parker, Jr., Member/Manager -5- ~~ STATE OF NORTH CAROLINA COUNTY OF I, , a Notary Public of the State and County aforesaid, do hereby certify that George A. Horton, III, a Member/Manager of TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company, personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the ~ day of , 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public STATE OF NORTH CAROLINA COUNTY OF I, , a Notary Public of the State and County aforesaid, do hereby certify that James W. Parker, Jr., a Member/Manager of TELESIS CONSTRUCTION MANAGEMENT, LLC, a North Carolina limited liability company, personally appeared- before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of , 2008. My Commission expires: [Affix Notarial Stamp or Seal] Notary Public Typed or Printed Name of Notary Public -6- ~~ By: By: STATE OF NORTH CAROLINA COUNTY OF ENO I7:IV1/R PARING DECK, LLC, a North Carolina limited liability company George A. Horton, IlI, Member/Manager James W. Parker, Jr., Member/Manager (SEAL) (SEAL) I, , a Notary Public of the State and County aforesaid, do hereby certify that George A. Horton, III, aMember/Manager of ENO RIVER PARKING DECK, LLC, a North Carolina limited liability company, personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public STATE OF NORTH CAROLINA COUNTY OF I, , a Notary Public of the State and County aforesaid, do hereby certify that James W. Parker, Jr., a Member/Manager of ENO RNER PARING DECK, LLC, a North Carolina limited liability company, personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public -7- ~~ By: STATE OF NORTH CAROLINA COUNTY OF HQ.LSOROUGH COM1VlUNITY, LLC, a North Carolina limited liability company Ruffm Slater, Manager (SEAL) I, a Notary Public of the State and County aforesaid, do hereby certify that Ruffm Slater, Manager of HII~LSBOROUGH COMIVI[IJNITY, LLC, a North Carolina limited liability company, personally appeared before me this day and acknowledged his voluntary execution of the foregoing instrument for and as the act of the limited liability company for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of , 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public -8- ~~ By: STATE OF NORTH CAROLINA COUNTY OF GATEWAY CENTER CONDONIINIUM ASSOCIATION, INC., a North Carolina nonprofit corporation George A. Horton, III, President (SEAL) I, , a -Notary Public of the State and County aforesaid, do hereby certify that George A. Horton, III, President of GATEWAY CENTER CONDOMINIiTM ASSOCIATION, INC., a North Carolina nonprofit corporation, personally appeared .before me this day and acknowledged his/her voluntary execution of the foregoing instrument for and as the act of the corporation for the purposes therein expressed. Witness my hand and official stamp or seal, this the day of , 2008. My Commission expires: Notary Public [Affix Notarial Stamp or Seal] Typed or Printed Name of Notary Public 12925\Ol\M\111Gray Water System Easement and Maintenance Agreement (05.05.08 WDB RL Draft #4) -9- a~ E~~IT A OFFICE BUILDING TRACT Being all of Lot 2, containing 0.60 acre, more or less, as shown on that certain plat of survey recorded in Plat Book 103, Page 20, Orange County Registry, reference to which plat of survey is hereby made for a more particular description of Lot 2. -10- ~g E~~TT B PARKIl~TG DECK TRACT Being all of Lot 3, containing 1.00 acre, more or less, as shown on that certain plat of survey recorded in Plat Book 103, Page 20, Orange County Registry, reference to which plat of survey is hereby made for a more particular description of Lot 3. -11- a~i EZ~~IT C-1 I:TNTT 100, GATEWAY CENTER CONDOM1QViiT1Vl, acommercial condominium unit as identified and described in the plats and plans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"), and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time (the "Declaration"); TOGETHER WITH (a) a 35.583% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class I and Class V Limited Common Elements allocated to Unit 100 as provided in the Declarafion and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 100 as provided in the Declaration. EI~TT C-2 UNET 200, GATEWAY CENTER CONDODZI[IYIUM, acommercial condominium unit as identified and described in the plats and plans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"), and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from ~ time to time (the "Declaration"); TOGETHER WITH (a) a 32.256% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class I, Class II, Class IV and Class V Limited Common Elements allocated to Unit 200 as provided in the Declaration and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 200 as provided in the Declaration. EI~~TT C-3 iTNTr 300, GATEWAY CENTER CONDOMIlVIU1Vl, a commercial condominium unit as identified and described in the plats and plans for Gateway Center Condominium recorded in Plat Book 103, Pages 68 through 77, Orange County Registry, as same may be amended and/or modified from time to time (the "Plat and Plans"), and in the Declaration of Condominium of Gateway Center Condominium recorded in Book 4458, Page 3, Orange County Registry, as same may be amended and/or modified from time to time (the "Declaration"); TOGEI~ER WITH (a) a 32.161% undivided interest in the Common Elements of Gateway Center Condominium as provided in the Declaration, (b) the use of all Class IlI, Class IV and Class V Limited Common Elements allocated to Unit 300 as provided in the Declaration and/or the Plat and Plans, and (c) any and all easements and other rights appurtenant to Unit 300 as provided in the Declaration. -12-