HomeMy WebLinkAboutAgenda - 01-15-2008-4y3GEG 01/07!08 edits
Redlined from 6!26/07 draft
AGREEMENT OF PURCHASE AND SALE
(OFFICE BLJILDING)
THIS AGREEMENT OF PURCHASE AND SALE {"Agreement") is made and entered into,
effective as of the Date of Agreement (as hereinafter defined), by and between TELESIS
CONSTRLJCTION 1VIANAGEMENT, LLC, a North Caralina limited liability company {"Seller"), and
ORANGE COUNTY, NORTH CAROLINA, a body corporate and politic and a political subdivision of
the State of North Carolina ("Purchaser").
~yITNESSETH THAT:
WHEREAS, Seller is the owner of the Property {as hereinafter defined}; and
WHEREAS, subject to the terms and conditions set Earth below, Seller desires to sell the Property to
Purchaser and Purchaser desires to purchase the Property from Seller.
NO~V, THEREFORE, in consideration of the agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
SECTION 1. Property. Subject to the provisions of this Agreement, Seller shall sell to Purchaser
and Purchaser shall purchase from Seller the following property:
1.01 All of that certain tract or parcel of land located in Hillsborough, Orange County,
North Caralina, as identified and described in the attached EXHIBIT A, together with the Building (as
hereinafter defined) and any and all other improvements and fixtures now or hereafter located thereon, and
any and all other rights and easements appurtenant thereto (collectively the "Real Property").
1.02 All equipment, machinery, appliances, fixtures (not a part of the Real Property) and
other tangible personal property awned by Seller attached to ar located an the Real Property and necessary
for the occupancy, use and/or operation of the Real Property for its intended purpose(s) (collectively the
"Equipment").
1.03 All local, state and federal permits, licenses, certificates (including certificate{s) of
occupancy) and approvals necessary to occupy, use and/or operate the Real Property for its intended
purpose{s) {collectively the "Permits"), to the extent assignable or transferable.
1.04 All site plans, surveys, soil and substrata studies, architectural drawings, plans and
specifications, engineering plans and studies, floor plans, environmental studies, assessments or
examinations, landscape plans, Viand other plans and studies of any kind in Seller's possession that
relate to the Real Property. Seller makes no representations or warranties with respect to these documents.
1.05 All keys anti other materials of any kind in Seller's possession necessary for the
occupancy, use and/or operation of the Property for its intended pui7~ose{s}.
1.06 All rights, titles and interests of Seller in and to any condemnation award made or to
be made in respect of the Real Property ~~~' ~ r~' *~ ° ~-~ ~ ,-a ~ r -'~--•~~~ +,. +,~~ v~.,~ n,.,...o.-t,, w_,
r ~~ ^''°r~° ~~ rtr°~'° ^~ ~..,. °*r°°*; and Seller shall execute and deliver to Purchaser, at Closing (as
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hereinafter defined); all proper instruments for the conveyance of such title and the assignment and collection
of any such award.
1.07 Any and all other rights, privileges and appurtenances owned by Seller and in any
way related to, or used in connection with, the occupancy, use and/or operation of the Real Property for its
intended purpose(s).
The term "Property," as used in this Agreement, shall mean, collectively, all of the real property and
all of the tangible and intangible personal property described in this SECTION 1, including, but not limited
to, the Real Property, the Building, the Equipment and the Permits.
SECTION 2. Purchase Price.
2.01 The purchase price (the "Purchase Price") for the Property shall be Elet-•en h~lillion Two
Hundred Seventy-Six Thousand One Hundred Twenty-Two and No/100 Dollars ($11,276,122.00} less a
credit in the amount set forth in Section 2.03 below, and as maY be further adjusted as provided in this
Section and in SECTION 3, payable in immediately available funds to Seller at Closing.
2.02 The Purchase Price shall be increased by such amount(s) as may be necessary to
compensate Seller for (a} any increase in Building construction costs and/or expenses reasonably incurred by
Seller resulting from changes made by Purchaser to the Interior Upfit {as hereinafter defined}, {b} the amount
by which the cast of the Interior Upfit shall exceed $35.00 per square foot {the "Interior Upfit Allowance"),
(c} any Building construction costs ancl,'or expenses not included in the Guaranteed 1~Iaximum Price {as
hereinafter defined) that are compensable pursuant to the Agreement For Construction
Manager at Risk Services ('"the Construction Agreement"1 by and between Seller and Purchaser-, and (dl any
Buildinu construction costs and/or expenses not included in the Buildin6 Construction Bud6et that are
incurred by Seller by reason of a change order or change order directive issued by Purchaser. The Purchase
Price purchases the Property and includes (1) the construction of the shell of the Building, (2) the exterior
improvements to the Real Property and ~3) the Interior Upfit Allowance, which together make up the
"Guaranteed Maxinum Price".
2.03 The Purchase Price shall be °°~' '~•~ +''° e~~-e~~t~~~
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a~ ~t~ T-~11T "~ar~t~aim••m ~~°"` ~redited by the budgeted cost of all
design professionals whose contract(s) are assigned to Purchaser yursuant to N.C. Gen. Stat. Section 143-
64.31 less any amount of such bud.~eted cost Seller has paid such design professionals.
2.04
Notwithstanding the execution and delivery of this Agreement, the right of Seller to seek an adjustment to the
Purchase Price for any of the grounds recited in paragraph 4 of the Agreement of Intent between Seller and
Purchaser dated November 2, 2006 ("the Agreement of Intent") is hereby reserved. Should Seller seek an
adjustment to the Purchase Price as rnovided in this paragraph, Seller shall deliver to Purchaser with the
requested adjustment a detailed analysis of the reasons for the request relating the reasons to applicable
provision(sl of the Agreement of Intent and comparisons of requested changes with the same information on
documents and other information relied upon by Seller in arriving at the Purchase Price. If the Seller's ground
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for requesting an adjustment to the Purchase Price is that Seller was delayed in the commencement of
construction by reason of the public bid process or by the reason of matters reasonably beyond Seller's
control, Seller shall deliver to Purchaser with the requested adjustment a copy of each and every document
and any other information relied upon by Seller in arriving at the Purchase Price.
SECTION 3. Casts and Prorations.
3.01 Seller shall pay the cast of deed preparation and any and all real estate excise tax,
any, transfer tax, revenue tax or other imposition of any nature applicable to this transaction. Purchaser shall
pay the cost of its title examination, the title insurance premium charged by Purchaser's title insurer far
owner's and lender's title insurance coverage, the cost of any updated survey required by Purchaser,
Purchaser's lender or Purchaser's title insurer and the per page cost of recording the deed. Each party shall
pay its own attorneys' fees.
3.02 All ad valorem real and personal property taxes assessed against the Property for the
calendar year in which the Closing occurs shall be paid by Seller at Closing. All ad valorem real and
personal property taxes assessed against the Property for the calendar year in ~vluch the Closing occurs shall
be prorated as of the Closing Date an a calendar year basis. The Purchase Price shall be increased by the
amount of Purchaser's share of such prorated taxes. If the tax bill for the calendar year in which Closing
occurs is pat available at the time of Closing, the parties shall estimate the ad valorem real and personal taxes
for the calendar year in which Closing occurs based upon the assessed value of the Property as of January 1
of the calendar year in which Closing occurs and the tax rate in effect for the Property on the Closing Date (as
hereinafter defined).
3.03 In the event any adjustments pursuant to this Section are, subsequent to Closing,
found to be erroneous, then either party hereto is entitled to additional marries and shall im~oice the other
party far such additional amounts as may be owing, and such amount shall be paid promptly by the other
party upon receipt of the im%aice. Such im~oice shall be accompanied by reasonable substantiating e<<idence.
SECTION 4. Title. At Closing, Seller shall furnish and deliver to Purchaser, at Seller's expense,
the fallowing:
4.01 Seller shall com~ey gaol, marketable, fee simple and insurable title to the Real
Property to Purchaser by general warranty deed. The Real Property shall not be subject to any {a} deed of
trust, security agreement, judgment, unpaid assessments for improvements, lien or claim of lien, or any other
title exception ar defect that is monetary in nature, or (b) any lease, rental agreement or other right of
occupancy of any kind, whether written or oral. Seller agrees to pay and satisfy of record any such title
defects or exceptions prior to or at Closing at Seller's expense. The Property may be subject to easements and
rights of way far utilities and vehicular and pedestrian access to and from adjoining properties of Seller and
others (including the parking deck to be constructed by or far Seller} and ~~'. ~Zargaret Lane, N & K Street
and/or S. Churtan Street, whether na~v existing ar hereafter granted by Seller in connection with its
development of the Property and adjoining properties, specifically including, without limitation, the
temporary and permanent access, construction, utilities and other easements shown on the plats of survey
recorded in Plat Book 102, Pages 52, 53 and 54, Orange Counter Registry, and to such other matters,
exclusive of any title exception ar defect described in (a} or (b) above, as are noted in Schedule B -
Part I of Im%estors Title Insurance Company owners policy of title insurance no. 204700432CH (collectively
the "Permitted Exceptions"}, and no such Permitted Exception shall constitute a basis for any title objection
by Purchaser. As to any other title exceptions or defects {the ``Title Exceptions"), Purchaser shall have until
and including the day which is thirty (30} calendar days prior to the Closing Date (the "Title Exceptions
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Date") within which to examine title to the Real Property and to notify Seller, in writing, of any Title
Exceptions to which Purchaser objects. If Purchaser fails to deliver to Seller written notice of objection to
any Title Exceptions on or before the Title Objections Date, Purchaser shall be deemed to have waived its
right to object to any Title Exceptions except those arising after the Title Exceptions Date. If Purchaser
delivers to Seller written notice of objection to any Title Exceptions on or before the Title Exceptions Date,
Seller shall then have the right, but not the obligation, for a period of fifteen (15) calendar days after receipt
of such written notice within which to cure or satisfy such objection. If the objection is not cured or satisfied
by Seller within such fi$een (15) day period, ar if Seller is unable to pro~ride Purchaser with reasonable
assurance within such fifteen (15) day period that such objection will be cured at or before Closing, then
Purchaser shall have the right to terminate this Agreement, in which event neither party shall have any further
rights, obligations or duties to one another under this Agreement. If Seller cures or satisfies the objection
within such fifteen (15} day period, or provides reasonable assurance to Purchaser with such fifteen (15) day
period that such objection will be cured at or before Closing, then this Agreement shall continue in effect.
Purchaser shall have the right at any time to waive any objection to any Title Exceptions that it may have
made and thereby preserve this Agreement in effect.
4.02 An assignment in a form and content reasonably satisfactory to Purchaser, dated as
of the Closing Date, which assigns to Purchaser all of Seller's rights, titles and interests in anti to all
Contracts, Permits and other Property which Purchaser has elected to purchase and assume and which may
properly be assigned to Purchaser thereby.
4.03 A bill of sale in a form and content reasonably satisfactory to Purchaser, dated as of
the Closing Date, which com~eys to Purchaser all of the Equipment and other Property which Purchaser has
elected to purchase and which may properly be conveyed to Purchaser thereby.
4.04 An affidavit and agreement regarding debts and liens executed by Seller and Seller's
contractors} and dated as of the Closing Date, stating that there are no unpaid debts for any work that has
been done or materials furnished to the Real Property prior to and as of the Closing Date and further stating
that Seller shall indemnify, save and protect Purchaser and Purchaser's lender (if any} and title insurer
harmless from and against any and all claims, liabilities, lasses, damages, causes of action, and expenses
(including court costs and reasonable attorneys' fees related thereto) arising out of, in comrectian with, ar
resulting from, any such debts and liens in a form and substance mutually acceptable to counsel far Seller and
Purchaser.
4.05 An affidavit of title with respect to the Real Property executed by Seller and Seller's
contractor(s) in a foam acceptable to Purchaser's title insurer to issue title insurance without exception for
mechanics' or materialmen's or other statutory liens or for the rights of parties in possession.
4.Ob To the extent available, the originals of all Contracts, Permits and other items
identified in paragraph 5.01.
4.07 An affidavit stating that Seller is not a "Foreign Person" within the meaning of IRC
Section 1445{f)3.
4.0$ Such instruments or documents as are necessary, or reasonably required by
Purchaser or Purchaser's title insurer, to evidence the authority of Seller to consummate the purchase and sale
transaction cantemplatecl herein and to execute and deliver the required closing documents, including without
limitation, copies of Seller's organizational documents and the originals of such documents as are required to
evidence the due authorization and approval of the transaction contemplated herein.
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4.09 Such other documents as may be reasonably required by Purchaser, Purchaser's
counsel, Purchaser's lender or the title insurer to carry out the terms and provisions of this Agreement.
SECTION S. Closing.
S.Ol Subject to the provisions of SECTION 6, the closing or settlement ("Closing") of
the transaction contemplated by this Agreement shall be held at the office of Purchaser's counsel in
Hillsborough, North Carolina, or at any other place in Orange County, North Carolina. that may be designated
by Purchaser. Closing shall occur during regular business hours not later than thirty {30) calendar days after
t1~~Qtie~~t~ the date of Substantial Completion (as Iiidefined in the Construction
Agreement); provided, however, in no event will Closing occur prior to July 1, 2008. The exact date
{"Closing Date"}, time and place of Closing shall be as agreed upon by Purchaser and Seller.
5.02 As a condition precedent to Purchaser's obligation to close the purchase of the
Property, there shall have occun-ed no material adverse change in any of the following from that which
existed on the Date of Agreement with respect to: {a) the zoning applicable to the Real Property and the real
Property's compliance with all applicable zoning, land use regulations and special permits; (b) the status of
the record title to the Real Property; (c) the status of Hazardous Materials (as hereinafter defined) on or
affecting the Real Property or the Real Property's compliance with Em-•ironmental Laws (as hereinafter
defined); (d} the restrictions applicable to the Real Property and the Real Property's compliance with all such
restrictions; and {e) the truth or accuracy of any warranty or representation made by Seller in this Agreement.
Seller shall notify Purchaser in waiting of any such material adverse change of which Seller is
knowledgeable.
5.03 As a further condition precedent to Purchaser's obligation to close the purchase of
the Property, construction of the Building, including the Interior Upfit and the exterior improvements to the
Real Property, shall "
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r-o.-~;~.,.,+o ,.~ n,,,.,,,..,ri,.`, rn,. +~,o u,,;~a;r,. satisfy the requirements of "substantial carnpletion" pursuant to
the Construction Agreement and a Certificate of Occupancy for the Building shall have been issued by the
Town of Hillsborough. In the event, at the time of Closing, the construction of the Building, including the
Interior Upfit and the exterior improvements to the Real Property, has not attained °fmal completion"
pursuant to the Construction Agreement, a portion of the Purchase Price shall be escrowed until final
completion is attained. The amount of the Purchase Price to be escrowed shall equal 125°~0 of the estimated
cost of all work that must be performed for final completion to be attained, including all punch and warranty
work. The estimated cost to be escrowed shall be determined by the Architect.
5.04 As a further condition precedent to Purchaser's obligation to close the purchase of
the Property, Seller and Purchaser shall have made and entered into a written license agreement pursuant to
which Seller shall license to Purchaser, upon terms and conditions mutually satisfactory to Seller and
Purchaser, the exclusive use of the Allocated Parking Spaces. As used herein, "Allocated Parking Spaces"
shall mean the number of parking spaces in the parking deck under construction by Seller on a tract of land
lying south of the Property and north of N & K Street which shall be allocated for the exclusive use of the
owner of the Building and such owner's tenants, employees, customers, guests, licensees and invitees.
Allocated Parking Spaces shall be detei7nined by subtracting from hvo hundred forty-six (246) the number of
parking spaces which shall hat%e been licensed by Seller to Purchaser or otherwise made available or reserved
for the exclusive use of Purchaser within the project complex (including the Real Property, the parking deck,
the proposed Orange County library building tract and the Gateway Center Building tract}. Seller and
Purchaser acknowledge that it is their intent that a total of two hundred forty-six (246) parking spaces shall be
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allocated to Purchaser witlun the project complex for Purchaser's use of the Building, Units 200 and 300 in
the Gateway Center Building and the proposed Orange County library building. Only to the extend that such
parking spaces cannot be accommodated within the project complex and outside the parking deck, shall
parking spaces be allocated to Purchaser within the parking deck.
S.OS As a further condition precedent to Purchaser's obligation to close the purchase of
the Property, Purchaser must ha~'e received underw°ritinQ a~rn-oval and North Carolina Local Government
Commission (LGC) a:~rpproval of installment purchase financing totaling at least $25,000,000 to enable
Purchaser to purchase the Propel-ty, and other property making up the Change County Office and Library
Complex. The undenvritin.~ and LGC approved financing must be in compliance with Purchaser's policies of
1~°0 of Purchaser's General Fund Budget debt service payments and 7% annual growth of Purchaser's
General Fund Bud6et.
SECTION G. Construction of the Building.
6.01 Subject to the terms, covenants and conditions set forth in this Agreement, Seller
shall construct, or cause to be constructed, a hvo story commercial building upon the Real Property
containing approximately 46,716 square feet (building footprint), the purpose of which building shall be to
serene as an office building {the "Building"}. The shell of the Building and the exterior improvements to the
Real Property shall be constructed and completed substantially in accordance with the Construction
Agreement and the Contract Documents referenced therein.
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6A2 At any time from and after the Date of Agreement and until the Closing,
Purchaser may enter upon the Real Property and perform, at the sole cost and expense of Purchaser (but
not in a manner which shall unreasonably disrupt or delay construction of the Building or the Interior
Upfitl. such analysis, review, tests or inspections of the Real Property, including construction of the
Building and the Interior Upfit, or any other aspect of the Real Property as may be pertinent and material
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to Purchaser in its sole and absolute discretion.
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SECTION 7. Risk of Loss. Subject to the provisions hereof, the risk of loss or damage to the
Property occurring prior to Closing shall be borne by Seller. If the Property is damaged by fire, storm, wind
or other casualty prior to Closing, Seller shall give prompt written notice thereof to Purchaser. This
Agreement shall continue in effect not<vithstandin~ the occurrence of such casualty and damage. and Seller
shall proceed forthwith to complete construction of the Building and site improvements with the proceeds
from all applicable casualtypolicies. Upon substantial completion, closing shall proceed as provided for
herein except the date for Closing shall be adiusted for the rebuilding subsequent to casualty. D,,,.^'~~°°r m.,<,
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SECTION $. Eminent Domain and Assessments. Seller has not received any notice of any
pending condemnation, assessment or similar proceeding or charge affecting the Real Property or any portion
thereof and has no knowledge that any such proceeding or charge is contemplated. If Seller receives notice
of the commencement or threatened commencement of eminent domain or assessment or other like
proceedings against the Real Property or any portion thereof at any time between the Date of Agreement and
the Closing Date, Seller shall immediately notify Purchaser in writing, and Purchaser shall elect within ten
{10) days from and after such notice either: (a) to terminate this Agreements in which case ant this
Agreement +,,° ~.,.-..°~.+ n,r,...,~. r~,.,,, i.° ..°+.,.-.,°~~ +,. D,,,..,,~.,r°,- .,..,~ +,~;~. n nro°.,,°~+ shall terminate and be of no
further force and effect; or (b) to close the transaction contemplated by this Agreement in accordance with the
teams Hereof but subject to such proceedings, in which event the Purchase Price shall not be reduced and
Seller shall assign to Purchaser all of Seller's rights in any condemnation award or proceeds. Purchaser shall
deliver notice of its election to Seller in writing. If Purchaser does not make its election within the aforesaid
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time period, Purchaser shall be deemed to have elected to close the transaction contemplated hereby in
accordance with clause {b) above.
SECTION 9. Representations and Warranties of Seller. Seller represents and wanants to
Seller {each of which representations and warranties shall be true as of the Date of Agreement and as of the
Closing} as follows:
9.01 Seller is a limited liability company duly arganizect, validly existing and in good
standing in accordance with the laws of the State of North Carolina. Seller has full right, power and authority
to enter into this Agreement and to consummate the sale contemplated herein, all required action necessary to
authorize Seller to enter into this Agreement and to consummate the sale conternplatecl herein has been taken,
and the joinder of no person or entity other than Seller will be necessary to convey the Property fully and
completely to Purchaser at Closing.
9.02 There are no adverse ar other parties in possession of the Property ar of any part
thereof. No person has been granted any license, lease or other right relating to the use or possession of the
Property or of any part thereof.
9.03 To the best of Seller's knowledge, there is no action, suit or proceedings pending or
threatened against or affecting the Property or any part thereof, or relating to or arising out of Seller's
ownership of the Property or any part thereof, or by any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental instrumentality, nor is there any attachment,
execution, assignment far the benefit of creditors or voluntary or im~oluntary proceecling in bankruptcy or
under other debtor relief laws contemplated by or pending ar theatened against Seller or the Property.
9.04 There exist no contracts, sen~ice agreements or obligations affecting the Property
which are in addition to or different from those which have been furnished or otherwise disclosed to
Purchaser.
9.05 Seller has no knowledge of any release, discharge or storage of any Hazardous
Material on or upon the Real Property ar any part thereof in violation of any Environmental Laws. Seller will
not permit, suffer or allow any such Hazardous A~laterial to be released, discharged or stored upon the Real
Property or any part thereof in violation of any Environmental Laws at any time prior to Closing.
For purposes of this Agreement, Hazardous Materials means and includes petroleum,
petroleum byproducts, (including, but not limited ta,) crude ail, diesel oil, fuel oil, gasoline, lubrication oil,
oil refuse, oil mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless of specific
gravity, natural ar synthetic gas products, asbestos, PCB, and~ar any hazardous substance or material, waste,
pollutant or contaminant, defined as such in {or for the purposes of} any Environmental Laws. For purposes
of tlus Agreement, Environmental Laws means the Comprehensive Environmental Response, Compensation
and Liability Act as amended, the Resource Conservation Recovery Act as amended, the Clean Air Act, the
Clean Water Act, any "Superfund" or "Superlien" law, the North Carolina (_)il Pollution and Hazardous
Substance Cantral Act of 197b, ar any other federal, state ar local statute, law, ordinance, code, rule,
regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning
any petroleum, petroleum byproduct (including, but pat limited to, crude oil, diesel oil, fuel ail, gasoline,
lubrication oil, oil refuse, oil mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless
of specific gravity), natural or synthetic gas, asbestos, PCB, products and/ar hazardous substance or material,
toxic or dangerous waste, substance or material, pollutant or contaminant, as may now or at any time
hereafter be in effect.
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EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROV"IDED IN THIS SECTION, IN
THIS AGREEMENT AND IN THE AGREEA~NT FOR Ct_)NSTRUCTTON I~~IANAGEA~NT
SERVICES BY AND BETWEEN SELLER AND PURCHASER, THE PROPERTY SHALL BE SOLD
TO PURCHASER IN "AS-IS", "WHERE AS" CONDITION. EXCEPT TO THE EXTENT
OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, ELSEWHERE IN THIS AGREEMENT
AND IN THE AGREET\-TENT FOR CONSTRUCTION h~IANAGEI~~lENT SERVICES BY AND
BETWEEN SELLER AND PURCHASER, NEITHER SELLER, NOR ANY t~F ITS I~4EA~IBERS,
MANAGERS, AFFILIATES, EMPLOYEES, ATTORNEI'S, ACCOUNTANTS, CONTRACTORS,
CONSULTANTS, AGENTS OR REPRESENTATIVES, NOR ANY PERSON PURPORTING TO
REPRESENT ANY OF THE FOREGOING, HAVE MADE ANY REPRESENTATION, WARRANTY,
GUARANTY, PROMISE, PROJECTION OR PREDICTION WHATSOEVER TO PURCHASER WITH
RESPECT TO THE PRt_)PERTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, ARISING BY
OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY OF
11~IERCHANTABILITI' OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY
REPRESENTATION OR WARRANTY AS TO (A} THE CONDITION, SAFETY, QUANTITY,
QUALITY, USE, OCCUPANCY OR OPERATION OF THE PROPERTY, OR {B) THE PAST,
PRESENT OR FUTURE REVENUES OR EXPENSES WITH RESPECT TO THE PROPERTY.
SECTION 14. Warranties of Purchaser. Purchaser represents, warrants and covenants to Seller
that Purchaser is a body corporate and politic and a political subdivision of the State of North Carolina. duly
created, validly existing and in good standing in accordance with the laws of the State of North Carolina.
Purchaser has full right, power and authority to enter into this Agreement and to consummate the purchase of
the Property as provided herein, and, except far action by Purchaser necessary to obtain the approval required
by SECTION X5.05 and that approval, all required action necessary to authorize Purchaser to enter
into this Agreement and to consummate the purchase of the Property as provided herein has been taken.
SECTION 11. Commissions.
11.41 The parties acknowledge and agree that there are no brokerage fees, real estate
commissions, finder's fees, acquisition costs or other compensation due to any real estate agent, broker or
other third party in connection with this transaction.
11.42 Seller and Purchaser da hereby represent each to the other that neither knows of any
real estate agent, broker or other party involved in this transaction who is entitled to, or has a claim for, a real
estate commission or fee and neither party has employed any such person. Seller and Purchaser hereby
covenant and agree each with the other to indemnify and forever bald the other harmless from and against
any loss, liability, costs, claims, demands, damages, actions, causes of action and suits arising out of or in any
manner related to the alleged employment or use by the indemnifying party of any real estate agent, broker or
other party.
SECTIQN 12. Notices. All notices and statements required or permitted by this Agreement to be
given to the parties or to either of them shall be deemed sufficiently given and delivered when made in
writing and personally delivered to the parties or delivered by next day courier service (i. e. FedEx, UPS, etc.),
or delivered by the United States Postal Sen~ice via certified mail, return receipt requested, postage prepaid
and addressed to the appropriate party(ies} at the following address(es):
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If to Seller: Telesis Construction Management, LLC
1000 Corporate Drive, Suite 109
Hillsborough, NC 27278
Attention: George A. Horton, III
with a copy to:
V4'illiam D. Bernard
Brown & Bunch, FLLC
101 N. Columbia Street
Chapel Hill, NC 27514
If to Purchaser: Orange County, North Carolina
P.O. Box 8181
Hillsborough, NC 27278
Attention: Pam Janes, Director of Purchasing and Central Services
Geoffrey E. Gledhill
Coleman, Gledhill, Har~xave & Peek, P.C.
129 E. Tryon Street
P. O. Drawer 1529
Hillsborough, NC 27278
Any such notice or statement delivered by personal delivery shall be deemed delivered anti received
as of the date of personal delivery. Any notice or statement delivered by next day courier service ar United
States certified mail as pro~~ided above shall be deemed delivered when delivered to the next day courier
sen%ice or deposited in the United States mail, and the delivery confirmation or return receipt therefrom, as
applicable, shall be deemed prima facie etiidence that such notice or statement was received on the date stated
on such delivery confirmation ar return receipt.
SECTION 13. Remedies. In the event this transaction fails to close by reason of Purchaser's
failure to pei~oim its obligations under this Agreement, Seller shall have the light to pursue any and all lights
and remedies available to it at law or in equity for Seller's breach, including, without limitation, the right, to
the extent permitted by law, to sue far specific performance. In the event Seller fails or refuses to com%ey the
Property to Purchaser in accordance with the terms of this Agreement or otherwise perform its obligations
hereunder, then Purchaser shall have the light to pursue any and all rights and remedies available to it at law
or in equity for Seller's breach, including, without limitation, the right to sue for specific performance.
SECTION 14. ~~Vaiver. No term, condition or covenant contained in this Agreement shall be
deemed waived by any act, omission or forbearance, or any series of same, by either Purchaser or Seller. The
only waivers that shall be effective under this Agreement shall be those which are in writing and signed by
the party to be charged. No prior notice of non-waiver need be given by a party who has previously forborne
from exercising a right hereunder.
SECTION 15. Coordination with Other Agreements. ~,...~..',.+,. ~a ~....~....:.,,. ,.,~ ~+
Seller and Purchaser agree and understand that ,
b
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^~ ~'°°'~~~ ^'• ~•~°°° ^~ +~-°a°. this Agreement evidences a portion of the transaction contemplated in the
Agreement of Intent, and that the rights and relations of the parties under this Agreement need to be
coordinated and harmonized with the other transactions therein contemplated. In particular, but not in
limitation, the closing contemplated in this Agreement shall be exercised simultaneously with the closing
referenced in the Agreement of Purchase and Sale (Library Building).
SECTION 16. No .Joint ~'entw•e. Nothing in this Agreement shall constitute or be construed to
constitute a faint venture between Purchaser and Seller.
SECTION 17. No Third Party Benettcia-•ies. Neither party intends to confer any rights under this
Agreement upon any third party. Standing to enforce this Agreement shall rest exclusively in the parties
hereto.
SECTION 18. Time of Essence. Time is of the essence of tlv Agreement.
SECTION 19. Headings. The section and paragraph headings in this Agreement are inserted far
convenience only and are in no ~vay intended to interpret, define, ar limit the scope of content of tlus
Agreement or any provision hereof.
Closing
SECTION 20. Possession. Seller shall deliver actual possession of the Property to Purchaser at
SECTION 21. Sure-iving Clauses. The provisions of this Agreement relating to tax and other pro-
rations after Closing and Seller's and Purchaser's respective indernnifications shall survive Closing or any
termination of this Agreement by either party whether as a matter of right or in breach of this Agreement,
notG~ithstanding any other provision in this Agreement to the contrary. Except as set forth in the preceding
sentence or as otherwise expressly set forth herein, all other provisions of this Agreement shall not survive
Closing or any termination hereof by either party as a matter of right.
SECTION 22. 1031 Exchange. Notwithstanding any provision to the contrary in this
Agreement, Purchaser acknowledges and agrees that Seller shall have the right, at Closing, to sell the
Propert~~ as a part of a transaction intended to qualify as a tax-free exchange under Section 1031 of the
Cade (a "Tax-Free Exchange"). If Seller elects to effect aTax-Free Exchange pursuant to this paragraph,
Purchaser shall execute and deliver such documents as may be required to effect the Tax-Free Exchange
which are in farm and substance reasonably acceptable to Purchaser, and ather~vise cooperate with Seller
in all reasonable respects to effect the Tax-Free Exchange. Notwithstanding the foregoing, the Tax-Free
Exchange shall not diminish Purchaser's rights, nor increase Purchaser's liabilities or obligations, under
this Agreement. Seller shall pay for all fees, costs and expenses in connection with such Tax-Free
Exchange.
SECTION 23. Go~~erning Lar~~ and Jw•isdiction. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws and decisions of the State of North Carolina.
Any action or proceeding brought by any party to construe, interpret or enforce this Agreement or any
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provision hereof shall be brought in the state or federal courts of North Carolina. Each of the parties to this
Agreement hereby submits and consents to the jurisdiction of such courts.
SECTION 24. Successors and Assigns. Tlus Agreement shall be binding upon and inure to the
benefit of Seller and Purchaser and their respective successors and assigns, if any.
SECTION 25. Exhibits. The exhibits referred to in and attached to this Agreement are
incorporated herein by this reference.
SECTION 26. Date of Agreement. As used herein, the team "Date of Agreement" shall mean the
date as of which this Agreement is executed by both Purchaser and Seller as indcated below.
SECTION 27. Counterparts. Tlus Agreement may be executed and delivered in several
counterparts, and all such counterparts so delivered and executed shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreement to be executed
by its duly authorized representative(s) as of the clay and year indicated below.
SELLER:
Telesis Construction Management, LLC, a North Carolina
limited liability company
By: (SEAL)
George A. Horton, III, Alernber,~I\-Zanager
By: (SEAL)
James W. Parker, Jr., IVlember/Manager
Date
PURCHASER:
Orange County, North Carolina, a body politic and
corporate and a political subdivision of the State of North
Carolina
By: {SEAL)
Name:
Title:
Date:
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EXHIBIT A
LEGAL DESCRIPTION
Being all of Lot ,consisting of acres, more or less, as shown on that certain plat of survey
recorded in Plat Book , Pages} ,Orange County Registry, reference to which plat of
survey is hereby made for a more particular description of such Lot.
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12925101'~,~4'~..086Purchase :agreement- Office Building RL dnc including all changes since 6260'
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