HomeMy WebLinkAbout2016-438 County Atty - Lease Amendment between State of NC and OC This Instrument prepared by and return after recording to: John L. Roberts 200 S. Cameron Street,
Hillsborough, North Carolina 27278.
LEASE AMENDMENT
PURSUANT TO NORTH CAROLINA SESSION LAW 2016-98 THIS LEASE AMENDMENT is made,
entered into, and effective the 1st day of July 2016 by and between the STATE OF NORTH CAROLINA a
body politic and corporate (hereinafter referred to as "Lessor") and ORANGE COUNTY a political
subdivision of the State of North Carolina (hereinafter referred to as"Lessee").
WITNESSETH:
THAT WHEREAS, the Lessor and Lessee entered into that Lease Agreement recorded in Record
Book 6085 at Page 494, Orange County Registry, (hereinafter the "Original Lease"); and
WHEREAS,the North Carolina General Assembly,through Session Law 2016-98 attached hereto
as Exhibit A, amended the Original Lease during the 2016 Session of the General Assembly; and
WHEREAS,the Lessor and Lessee desire to set out the amendments to the Original Lease in
recordable format for recordation in the Orange County Registry.
NOW THEREFORE,the parties acknowledge that pursuant to Session Law 2016-98 the Original
Lease is amended by adding three new paragraphs as follows:
24.21. Notwithstanding any other provision or paragraph, Orange County may grant a leasehold deed
of trust, with a duration of up to forty (40)years from the original lease date, in the land and the
buildings on the land that make up and constitute the Premises.
24.22. Notwithstanding any other provision or paragraph, in the event of a default by Lessee a mortgage
holder may foreclose its security interest and evict the Lessee from the Premises.
24.23. Notwithstanding any other provision or paragraph, both the date for commencement of
construction and the date for completion of construction and occupation shall be extended by eighteen
(18) months from the dates set forth in the Original Lease.
The real estate encumbered by this Lease Amendment is the same real estate encumbered by the
Original Lease referred to therein as the Premises. The parties further agree that should any conflict
arise between or among the terms of the Original Lease and the terms of this Amendment the terms of
this Amendment shall control.
[signatures begin on following page]
IN TESTIMONY WHEREOF, Lessor has,through the North Carolina Department of
Administration, reviewed as to form this instrument, the terms of which were ratified by the North
Carolina General Assembly and approved by the Governor of North Carolina through Session Law 2016-
98; and Lessee has caused this instrument to be executed in its name by its Chair of the Board of
Commissioners, attested, by its Clerk and its County seal hereto affixed by authority duly given, all as of
the dates set forth in the notary acknowledgments below.
LESSEE:
ORANGE COUNTY
By: �w�./ 'gtA-
Earl McKee, Chair
Orange County Board of Commissioners
ATTEST: (�suagp
o�
lI
(Seal)
011- Clerk
// o
STATE OF NORTH CAROLINA ff¢ �arrul;na
COUNTY OF ORANGE
I, Dpnna_S . CJ , a Notary Public in and for the aforesaid County and
State do hereby certify that David unt personally came before me this day and acknowledged that
he/she is Deputy Clerk to the Board of Commissioners of Orange County and that by authority duly given
and as an act of the Orange County, the foregoing instrument was signed by EARL MCKEE, Chair of the
Board of County Commissioners, attested by himself as Deputy Clerk and sealed with the County seal.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal, this the &'\day of
2016.
Notary Public
My Commission Expires: Print Name: sn .
Donna S.Uo d
Notary County AI nano
North Carolin
My Commission
LESSOR:
STATE OF NORTH CAROLINA
By:
Secretary of Administration
ATTEST:
Secretary of State
STATE OF NORTH CAROLINA
COUNTY OF WAKE
I, a Notary Public in and for the County of
and State of North Carolina, do hereby certify that ELAINE F.
MARSHALL, Secretary of State of North Carolina, personally came before me this day and acknowledged
that she is Secretary of State of North Carolina, and that by authority duly given and as the act of the
State, the foregoing instrument was signed in its name by KATHRYN JOHNSTON, Secretary of the
Department of Administration of the State of North Carolina, sealed with the Great Seal of the State of
North Carolina, and attested by herself as Secretary of State of North Carolina.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal, this the day of
, 2016.
Notary Public
My Commission Expires: Print Name:
EXHIBIT A
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
SESSION LAW 2016-98
HOUSE BILL 151
AN ACT TO AMEND THE VACATION RENTAL ACT TO CLARIFY THE ROLE OF
REAL ESTATE BROKERS IN TRANSACTIONS BETWEEN LANDLORDS AND
TENANTS, TO PROTECT MEMBERS OF THE ARMED FORCES BY ALLOWING
TERMINATION OF RENTAL AGREEMENTS UPON TRANSFER OR
REDEPLOYMENT, TO CLARIFY THE PROCEDURE FOR AWARDING AND
COLLECTING CERTAIN COURT FEES IN EVICTION PROCEEDINGS, AND TO
ALLOW AMENDMENTS TO A LEASE OF REAL PROPERTY TO ORANGE
COUNTY TO FACILITATE JAIL CONSTRUCTION.
The General Assembly of North Carolina enacts:
PART I. CHANGES TO THE VACATION RENTAL ACT/SUMMARY
EJECTMENT/RESIDENTIAL RENTAL AGREEMENTS
SECTION 1.1. G.S. 42A-4 reads as rewritten:
"§ 42A-4. Definitions.
The following definitions apply in this Chapter:
Advanced payments. — All payments made by a tenant in a vacation rental
agreement to a landlord or the landlord's real estate broker prior to
occupancy for the purpose of renting a vacation rental property for a future
period of time as specified in the vacation rental agreement.
X21 Landlord. —An owner of residential property offered for lease as a vacation
rental with or without the assistance of a real estate broker.
Reserved.
(4j4j Real estate broker. —A real estate broker as defined in G.S. 93A-2(a).
(2}LQ Residential property. — An apartment, condominium, single-family home,
townhouse, cottage, or other property that is devoted to residential use or
occupancy by one or more persons for a definite or indefinite period.
(3)to Vacation rental. — The rental of residential property for vacation, leisure, or
recreation purposes for fewer than 90 days by a person who has a place of
permanent residence to which he or she intends to return.
(4)Q Vacation rental agreement. —A written agreement between a landlord or his
or her real estate broker and a tenant in which the tenant agrees to rent
residential property belonging to the landlord for a vacation rental."
SECTION 1.2. G.S. 42A-19(b)reads as rewritten:
"(b) Except as otherwise provided in this subsection, upon termination of the landlord's
interest in the residential property subject to a vacation rental agreement, whether by sale,
assignment, death, appointment of receiver or otherwise, the landlord or the landlord's agent, or
the real estate broker, shall, within 30 days, transfer all advance rent paid by the tenant, and the
portion of any fees remaining after any lawful deductions made under G.S. 42A-16, to the
landlord's successor in interest and thereafter notify the tenant by mail of such transfer and of
the transferee's name and address. If a real estate broker is holding advanced rents paid by the
tenant pursuant to a vacation rental agreement at the time of the termination of the landlord's
interest, the real estate broker may deduct from the advanced rents transferred to the landlord's
successor in interest any management fee earned by the real estate broker prior to the transfer.
The written agency agreement between the landlord and the real estate broker shall og vern
when the fee has been earned. If the real estate broker deducts an earned management fee from
the advanced rents, the landlord shall be responsible to the landlord's successor in interest for
the amount deducted. For vacation rentals that end more than 180 days after the recording of
* H 1 5 1 - V - 7
the interest of the landlord's successor in interest, unless the landlord's successor in interest has
agreed in writing to honor the vacation rental agreement, the landlord or the landlord's agent, or
the real estate broker,shall, within 30 days, transfer all advance rent paid by the tenant, and the
portion of any fees remaining after any lawful deductions made under G.S. 42A-16, to the
tenant. Compliance with this subsection shall relieve the landlord or real estate broker of
further liability with respect to any payment of rent or fees. Funds held as a security deposit
shall be disbursed in accordance with G.S. 42A-18."
SECTION 1.3. Article 5 of Chapter 42A of the General Statutes reads as rewritten:
"Article 5.
"Landlord and Tenant Duties.
"§ 42A-31. Landlord to provide fit premises.
A landlord of a residential property used for a vacation rental shall:
(1) Comply with all current applicable building and housing eede .codes to the
extent required by the operation of the codes. However, no new requirement
is imposed if a structure is exempt from a current building or housing code.
(6) Provide a minimum of one operable carbon monoxide alarm per rental unit
per level, either battery-operated or electrical, that is listed by a nationally
recognized testing laboratory that is OSHA-approved to test and certify to
American National Standards Institute/Underwriters Laboratories Standards
ANSI/UL2034 or ANSUUL2075, and install the carbon monoxide alarms in
accordance with either the standards of the National Fire Protection
Association or the minimum protection designated in the manufacturer's
instructions, which the landlord shall retain or provide as proof of
compliance. A landlord that installs one carbon monoxide alarm per rental
unit per level shall be deemed to be in compliance with standards under this
subdivision covering the location and number of alarms. The landlord shall
replace or repair the carbon monoxide alarms within three days of receipt of
notification if the landlord is notified of needed replacement or repairs in
writing by the tenant. At least every six months, the landlord shall ensure
that a carbon monoxide alarm is operable and in good repair. Unless the
landlord and the tenant have a written agreement to the contrary, the
landlord shall place new batteries in a battery-operated carbon monoxide
alarm annually and the tenant shall replace the batteries as needed during the
tenancy. Failure of the tenant to replace the batteries as needed shall not be
considered as negligence on the part of the tenant or the landlord. A carbon
monoxide alarm may be combined with smoke alarms if the combined alarm
does both of the following: (i) complies with ANSYUL2034 or
ANSYUL2075 for carbon monoxide alarms and ANSI/UL217 for smoke
alarms and (ii) emits an alarm in a manner that clearly differentiates between
detecting the presence of carbon monoxide and the presence of smoke. This
subdivision applies only to dwelling units having a fossil-fuel burning
heater, appliance, or fireplace and in any dwelling unit having an attached
garage. Any operable carbon monoxide detector installed before January 1,
2_015 shall be deemed to be in compliance with this subdivision.
These duties shall not be waived; however, the landlord and tenant may make additional
covenants not inconsistent herewith in the vacation rental agreement.
42A-33. Responsibilities and liability of real estate broker.
Lq� A real estate broker managing a vacation rental property on behalf of a landlord
shall do all of the following:
Manage the property in accordance with the terms of the written agency
agreement signed by the landlord and real estate broker.
Offer vacation rental property to the public for leas i ng in compliance with all
applicable federal and State laws, regulations, and ethical duties, including,
but not limited to, those prohibiting discrimination on the basis of race,
color, religion, sex, national origin, handicapping condition, or familial
status.
Page 2 Session Law 2016-98 House Bill 151
(3,) Notify the landlord regarding any necessary repairs to keep the property in a
fit and habitable or safe condition and follow the landlord's direction in
arranging for any such necessary repairs, including repairs to all electrical,
plumbing, sanitary, heating, ventilating, and other facilities and major
appliances supplied by the landlord upon written notification from the tenant
that repairs are needed.
Verify that the landlord has installed operable smoke detectors and carbon
monoxide alarms.
Verify that the landlord has annually placed new batteries in a
battery-operated smoke detector or carbon monoxide alarm. Failure of the
tenant to replace the batteries as needed shall not be considered negligence
on the part of the real estate broker.
A real estate broker or firm managing a vacation rental property on behalf of a
landlord client shall not become personally liable as a party in any civil action between the
landlord and tenant solely because the real estate broker or firm fails to identify the landlord of
the property in the vacation rental agreement."
SECTION 1.4. Article 6 of Chapter 42A of the General Statutes is amended by
adding a new section to read:
42A-37. Early termination of vacation rental agreement by military personnel.
La,) Any member of the Armed Forces of the United States who executes a vacation
rental agreement and subsequently receives (i) an order for deployment with a military unit for
a period overlapping with the rental period or (ii) permanent change of station orders requiring
the member to relocate on a date prior to the beginning of the lease term may terminate the
member's vacation rental agreement by providing the landlord or landlord's agent with a written
notice of termination within 10 calendar days of receipt of the order. The notice must be
accompanied by either a copy of the official military orders or a written verification signed by
the member's commanding officer. Termination of a lease pursuant to this subsection is
effective immediately upon receipt of the notice by the landlord or landlord's agent. All monies
paid by the terminating member, with the exception of nonrefundable fees paid to third parties
as described in G.S. 42-16(a), in connection with the vacation rental agreement shall be
refunded to the member within 30 days of termination of the agreement.
(b,) A member's termination of a vacation rental agreement pursuant to subsection (aa) of
this section shall also terminate any obligation a spouse or dependent of the member may have
under the vacation rental agreement.
LcJ The right to terminate a vacation rental agreement as described in subsection (aa) of
this section shall extend to the spouse of any member of the Armed Forces of the United States.
A spouse exercising the right to terminate a rental agreement shall provide the same notice as
described in subsection (a) of this section.
The provisions of this section may not be waived or modified b the agreement of
the parties."
SECTION 1.6. G.S. 42-44 reads as rewritten:
"§ 42-44. General remedies, penalties, and limitations.
A real estate broker or firm as defined in G.S. 93A-2 managing a rental property on
behalf of a landlord shall not be personally liable as a party in a civil action between the
landlord and tenant solely because the real estate broker or firm fails to identify the landlord of
the property in the rental agreement.
SECTION 1.7. G.S. 42-46 reads as rewritten:
"§ 42-46. Authorized fees-.late fees and eviction fees.
(f) Court-Appearance Fee. — Pursuant to a written lease, a landlord may charge a
court-appearance fee in an amount equal to ten percent (10%) of the monthly rent only if the
tenant was in default of the leas lease and the landlord filed, served, and prosecuted
successfully a complaint for summary ejectment and/or monies owed in the small claims oeiift;
and either- .,.Fty appealed the udgm°^* of the f istr-a ° ^ourt. If the tenant appeals the
judgment of the magistrate, and the magistrate's judgment is vacated, any fee awarded by a
magistrate to the landlord under this subsection shall be vacated.
House Bill 151 Session Law 2016-98 Page 3
(g) Second Trial Fee. —Pursuant to a written lease, a landlord may charge a second trial
fee for a new trial following an appeal from the judgment of a magistrate. To qualify for the
fee, the landlord must prove that the tenant was in default of the lease and the landlord
prevailed. The landlord's fee may not exceed twelve percent (12%) of the monthly rent in the
lease.
(h) Limitations on Charging and Collection of Fees.
(1) A landlord who claims fees under subsections (e) through (g) of this section
is entitled to charge and retain only one of the above fees for the landlord's
complaint for summary ejectment and/or money owed.
(2) A landlord who earns a fee under subsections (e) through (g) of this section
may not deduct payment of that fee from a tenant's subsequent rent payment
or declare a failure to pay the fee as a default of the lease for a subsequent
summary ejectment action.
(3) It is contrary to public policy for a landlord to put in a lease or claim any fee
for filing a complaint for summary ejectment and/or money owed other than
the ones expressly authorized by subsections (e) through (g) of this section,
and a reasonable attorney's fee as allowed by law.
(4) Any provision of a residential rental agreement contrary to the provisions of
this section is against the public policy of this State and therefore void and
unenforceable.
(5) If the rent is subsidized by the United States Department of Housing and
Urban Development, by the United States Department of Agriculture, by a
State agency, by a public housing authority, or by a local government, any
fee charged pursuant to this section shall be calculated on the tenant's share
of the contract rent only, and the rent subsidy shall not be included."
SECTION I.S. G.S. 93A-2(c)(6)reads as rewritten:
"(6) Any salaried person employed by a licensed real estate broker, for and on
behalf of the owner of any real estate or the improvements thereon, which
the licensed broker has contracted to manage for the owner, if the salaried
employee's employment is limited to: exhibiting units on the real estate to
prospective tenants; providing the prospective tenants with information
about the lease of the units; accepting applications for lease of the units;
completing and executing preprinted form leases; and accepting security
deposits and rental payments for the units only when the deposits and rental
payments are made payable to the owner or the broker employed by the
owner. The salaried employee shall not negotiate the amount of security
deposits or rental payments and shall not negotiate leases or any rental
agreements on behalf of the owner or broker. However, in a vacation rental
transaction as defined by ,G.S. 42A-4(61 the employee may
offer a prospective tenant a rental price and term from a schedule setting
forth prices and terms and the conditions and limitations under which they
may be offered. The schedule shall be written and provided by the
employee's employing broker with the written authority of the landlord."
SECTION 1.9. This Part becomes effective July 1, 2016. Nothing in this Part shall
be construed as being applicable to or affecting any litigation pending on that date.
PART II. FACILITATE ORANGE COUNTY JAIL CONSTRUCTION
SECTION 2.1. Upon agreement by Orange County, the Department of
Administration shall amend the land lease, recorded in Book 6085 at Page 494, Orange County
Registry,to provide as follows:
(1) That Orange County may grant a leasehold deed of trust, with a duration of
up to 40 years from the original lease date, in the land and the buildings on
the land.
(2) That in the event of a default the mortgage holder may foreclose its security
interest and evict the County from the premises.
(3) That both the date for commencement of construction and the date for
completion of construction and occupation shall be extended by 18 months
from the dates set forth in the original lease.
Page 4 Session Law 2016-98 House Bill 151
SECTION 2.2. Notwithstanding Chapter 146 of the General Statutes or any other
provision of law, the lease amendments described in Section 2.1 of this act shall not require
Governor or Council of State Approval.
SECTION 2.3. Once the lease amendments described in Section 2.1 of this act
have been made, any term or provision of the lease that is contrary to the language of those
amendments shall be deemed of no effect and the terms of the lease as amended shall control.
SECTION 2.4. The lease amendments required by this act shall be in such form as
the Secretary of Administration, or the Secretary's designee, may approve.
PART III. EFFECTIVE DATE
SECTION 3.1. Except as otherwise provided, this act is effective when it becomes
law.
In the General Assembly read three times and ratified this the 1St day of July, 2016.
s/ Philip E. Berger
President Pro Tempore of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Pat McCrory
Governor
Approved 1:59 p.m. this 18th day of July, 2016
House Bill 151 Session Law 2016-98 Page 5