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AGREEMENT CONCERNING THE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF
IMPROVEMENTS FOR THE CHAPEL HILL-CARRBORO CITY SCHOOLS
by and between
THE CHAPEL HILL-CARRBORO CITY BOARD OF EDUCATION
and
ORANGE COUNTY, NORTH CAROLINA
Dated as of January , 1995
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BWNY/133962.2/15880/00013/1537 December 14, 1994
AGREEMENT CONCERNING THE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF
IMPROVEMENTS FOR THE CHAPEL HILL-CARRBORO CITY SCHOOLS
THIS AGREEMENT, dated as of January _, 1995, and entered into
by and between The Chapel Hill-Carrboro City Board of Education, a
body corporate which has general control and supervision of all
matters pertaining to the public schools in the Chapel Hill-
Carrboro City Schools, its respective school administrative unit,
and is duly organized and existing under the laws of the State of
North Carolina (the "Board of Education") , and the County of
Orange, North Carolina, a political subdivision of the State of
North Carolina (the "County") ,
W I T N E S S E T H :
WHEREAS, the County and the Board of Education have previously
determined to cooperate in a plan for the acquisition,
construction, equipping and financing of a project which each has
found to be necessary and desirable to provide for improved public
school facilities and improved public education in the County; and
WHEREAS, such project consists of a new elementary school for
use by the Chapel Hill-Carrboro City Schools, including parking
areas, sidewalks and other appurtenant facilities, landscaping and
other related site work (such school and other facilities and
improvements being herein collectively called the "Improvements") ,
on a site adjacent to the site of McDougle Middle School as more
particularly described in Exhibit A to the Installment Purchase
Contract hereinafter described (the "Site") ; and
WHEREAS, in furtherance of such plan, the Board of Education
is authorized to sell the Site to the County for any price
negotiated between them; and
WHEREAS, in furtherance of such plan, the County is authorized
to acquire, construct and equip real and personal property
consisting of the Site and the Improvements or otherwise make
available such property for use by the Chapel Hill-Carrboro City
Schools and to lease and sell such property to the Board of
Education; and
WHEREAS, the County is also authorized to finance the
acquisition, construction and equipping of the Improvements on the
Site by contracts that create in the Site and the Improvements and
certain related property a security interest to secure repayment of
moneys made available for such purpose; and
BWNY/133962.2/15880/00013/1537 December 14, 1994
WHEREAS, the Board of Education and the County are authorized
to enter into agreements in order to execute such plan and this
agreement constitutes such an agreement; and
WHEREAS, all acts, conditions and things required by law to
exist, to have happened and to have been performed precedent to and
in connection with the execution and entering into of this
agreement (this "Agreement") do exist, have happened and have been
performed in regular and due time, form and manner as required by
law, and the parties hereto are now duly authorized to execute and
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements and covenants contained herein and for other
valuable consideration, the parties hereto do hereby agree as
follows:
Section 1. Sale of Site to County. The Board of Education,
in furtherance of such plan, will sell the Site to the County for
a price of $100 and will convey the Site to the County by means of
a General Warranty Deed substantially in the form of the draft
thereof attached hereto as Exhibit A (the "General Warranty Deed") .
Section 2 . Acquisition, Construction, Equipping and Financing
of Improvements. The County, in furtherance of such plan, will
acquire the Site from the Board of Education in accordance with
Section 1 above and will provide for the acquisition, construction
and equipping of the Improvements by the Board of Education as
hereinafter provided. The County will also provide for the
financing of the acquisition, construction and equipping of the
Improvements pursuant to Section 160A-20 of the General Statutes of
North Carolina, as amended, by entering into an Installment
Purchase Contract between the County and NationsBank of North
Carolina, N.A. (the "Lender") substantially in the form of the
draft thereof attached hereto as Exhibit B (the "Installment
Purchase Contract") . In addition, the County will execute and
deliver to a trustee for the benefit of the Lender a Deed of Trust
and Security Agreement substantially in the form of the draft
thereof attached hereto as Exhibit C. (the "Deed of Trust") , which
will encumber the Site and the Improvements and certain related
property as security for its obligation to repay the funds advanced
to it pursuant to the Installment Purchase Contract.
Section 3 . Lease of Site and Improvements to Board of
Education. Upon the conveyance of the Site to the County by the
Board of Education, the County will lease the Site and the
Improvements to the Board of Education for use by the Chapel Hill-
Carrboro City Schools pursuant to a Lease to be entered into by the
County and the Board of Education substantially in the form of the
draft thereof attached hereto as Exhibit D (the "Lease") .
BWNY/133962.2/15880/00013/1537 December 14, 1994 2
Section 4 . Board of Education to Act as Agent of the County.
Indemnification. The County hereby irrevocably appoints the Board
of Education as its agent in connection with the acquisition,
construction and equipping of the Improvements. The Board of
Education, as the agent of the County for the foregoing purpose,
shall cause the acquisition, construction and equipping of the
Improvements to be completed on or before the date or dates set
forth in the respective construction documents and otherwise in
accordance with the respective construction documents and the
Installment Purchase Contract and any applicable requirements of
governmental authorities and law. The County hereby undertakes to
make any insurance proceeds relating to the acquisition,
construction and equipping of the Improvements available to the
Board of Education for use in carrying out such obligation,
provided that the County retains its rights to direct the use of
such insurance proceeds to prepayment of the County's obligation to
pay Installment Payments pursuant to the Installment Purchase
Contract.
To the extent permitted by law, the Board of Education shall
indemnify and save the County harmless against and from all claims
by or on behalf of any person, firm, corporation or other legal
entity arising from the acquisition, construction or equipping of
the Improvements; provided, however, that the Board of Education
shall not be obligated to pay the Installment Payments pursuant to
the Installment Purchase Contract or to indemnify any party to the
Installment Purchase Contract for any third-party claims asserted
against any such party relating to the payment of such Installment
Payments. The Board of Education shall be notified promptly by the
County of any action or proceeding brought in connection with any
such claims arising from the acquisition, construction or equipping
of the Improvements.
Section 5. Description of Improvements. The Board of
Education shall have the right to make any changes in the
description of the Improvements or of any component or components
thereof with the consent of the County; provided, however, that any
such change shall not alter the public purpose of the Improvements
and that any increase in the cost of the Improvements resulting
from such a change shall, to the extent the increased cost exceeds
the balance of the funds budgeted therefor as of the date of this
Agreement, be payable solely from other funds of the Board of
Education, which funds shall be encumbered for such purpose prior
to the approval of any such change in the Improvements.
Section 6. Right of Board of Education to Enforce Contracts.
The County hereby assigns to the Board of Education all of its
rights and powers under all purchase orders and contracts it enters
into with respect to the Improvements, and the Board of Education
shall have the right to enforce in its own name or the name of the
County such purchase orders or contracts; provided, however, that
BWNY/133962.2/15880/00013/1537 December 14, 1994 3
this assignment by the County shall not prevent the County from
asserting said rights and powers in its own behalf.
Section 7 . Construction Conferences. The Board of Education
hereby agrees that it will provide to the County Engineer or his
designee timely notice of all conferences with representatives of
the architects, contractors and vendors with respect to the
Improvements and that the County Engineer or his designee shall
have the right to attend all such conferences.
Section 8. Compliance with Installment Purchase Contract.
The Board of Education agrees that, except as otherwise provided in
this Agreement or in the Lease, it will faithfully discharge all
duties imposed on the County by the Installment Purchase Contract
with respect to the acquisition, construction and equipping of the
Improvements- and the operation, maintenance and insuring of the
Property (as defined in the Installment Purchase Contract) .
Section 9 . Acceptance. The Board of Education, for one
dollar ($1. 00) and other good and valuable consideration in hand
received, does hereby accept the foregoing appointment as agent of
the County for the purposes set forth in Section 1 above.
Section 10. Disclaimers of the County. The Board of
Education acknowledges and agrees that the design of the
Improvements has not been made by the County, that the County has
not supplied any plans or specifications with respect thereto and
that the County (a) is not a manufacturer of, or a dealer in, any
of the component parts of the Improvements or similar projects,
(b) has not made any recommendation, given any advice or taken any
other action with respect to (i) the choice of any supplier, vendor
or designer of, or any other contractor with respect to, the
Improvements or any component part thereof or any property or
rights relating thereto, or (ii) any action taken or to be taken
with respect to the Improvements or any component part thereof or
any property or rights relating thereto at any stage of the
construction thereof, (c) has not at any time had physical
possession of the Improvements or any component part thereof or
made any inspection thereof or any property or rights relating
thereto, and (d) has not made any warranty or other representation,
express or implied, that the Improvements or any component part
thereof or any property or rights relating thereto (i) will not
result in or cause injury or damage to persons or property,
(ii) has been or will be properly designed or constructed or will
accomplish the results which the Board of Education intends
therefor, or (iii) is safe in any manner or respect.
The County makes no express or implied warranty or
representation of any kind whatsoever with respect to the
Improvements or any component part thereof to the Board of
Education or any other circumstance whatsoever with respect
thereto, including but not limited to any warranty or
BWNY/133962.2/15880/00013/1537 December 14, 1994 4
representation with respect to: the merchantability or the fitness
or suitability thereof for any purpose; the design or condition
thereof; the safety, workmanship, quality or capacity thereof;
compliance thereof with the requirements of any law, rule,
specification or contract pertaining thereto; any latent defect;
the ability thereof to perform any function; that the funds
advanced by the Lender pursuant to the Installment Purchase
Contract will be sufficient (together with other available funds of
the Board of Education) to pay the cost of acquiring, constructing
and equipping the Improvements; or any other characteristic of the
Improvements; it being agreed that all risks relating to the
Improvements, the completion thereof or the transactions
contemplated hereby or by the Installment Purchase Contract are to
be borne by the Board of Education, and the benefits of any and all
implied warranties and representations of the County are hereby
waived by the Board of Education.
Section 11. Amendments and Further Instruments. The County
and the Board of Education may, from time to time, with the written
consent of the Lender, which shall not be unreasonably withheld,
execute and deliver such amendments to this Agreement and such
further instruments as may be required or desired for carrying out
the expressed intention of this Agreement.
Section 12 . Agreement to Survive Termination of Installment
• Purchase Contract. Notwithstanding anything to the contrary
contained herein, the obligations undertaken by the Board of
Education hereunder shall survive the termination of the
Installment Purchase Contract.
BWNY/133962.2/15880/00013/1537 December 14, 1994 5
IN WITNESS WHEREOF, the parties hereto have executed and
attested this Agreement by their officers thereunto duly authorized
as of the day and year first written above.
THE CHAPEL HILL-CARRBORO CITY
BOARD OF EDUCATION
By:
Kenneth B. Touw, Chair
[Seal]
Attest:
Neil G. Pedersen,
Secretary
ORANGE COUNTY, NORTH CAROLINA
By:
Moses Cary, Jr. ,
Chairman of the Board of
Commissioners
[Seal]
Attest:
Beverly L. Blythe,
Clerk to the Board
of Commissioners
BWNY/133962.2/15880/00013/1537 December 14, 1994 6
EXHIBIT A
GENERAL WARRANTY DEED
[To be provided. ]
BWNY/133962.2/15880/00013/1537 December 14, 1994
EXHIBIT B
INSTALLMENT PURCHASE CONTRACT
[To be provided. ]
BWNY/133962.2/15880/00013/1537 December 14, 1994
EXHIBIT C
DEED OF TRUST
[To be provided. ]
BWNY/133962.2/15880/00013/1537 December 14, 1994
EXHIBIT D
LEASE
[To be provided. ]
BWNY/133962.2/15880/00013/1537 December 14, 1994