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HomeMy WebLinkAbout2001 S Attorney Smith Middle School Ground Lease Agreement with UNC' '. groundlease- rev -cl2. orange NORTH CAROLINA M M RETURN THIS COPY TO THE CLERK'S _ OFFICE FOR THE PERMANENT AGENDA FILE a �D -moo/ ORANGE COUNTY GROUND LEASE AGREEMENT THIS GROUND LEASE AGREEMENT (the "Lease ") is entered into on the day of_ 20 0L, by between THE STATE OF NORTH CAROLINA, (the "Landlord "), and Orange County, N Carolina (the "Tenant "). ARTICLE I. BASIC LEASE INFORMATION. 1.1 Basic Lease Information. In addition to the terms that are defined elsewhere in this Lease, these terms are used in this Lease: 1.1.1 LANDLORD'S ADDRESS: State of North Carolina c/o State Property Office 116 West Jones Street Raleigh, North Carolina 27603 -8003 With copy to: University of North Carolina at Chapel Hill C/o Property Office 103 Giles Homey Building Chapel Hill, North Carolina 27516 1.1.2 TENANT'S ADDRESS: Orange County c/o County Manager Hillsborough, NC 27278 With copy to: Chapel Hill — Carrboro.City Board of Education Lincoln Center Merritt Mill Road Chapel Hill, North Carolina 27516 1.1.3 SUB- TENANT: Chapel Hill — Carrboro City Board of Education 1.1.4 LAND: The land described in paragraph 2.1 which is more specifically described on Exhibit A. 1.1.5 IMPROVEMENTS: Any improvements located on the Land placed thereon by Tenant or Sub- Tenant, and whether or not spelled in upper or lower case, more specifically described as athletic fields, tennis courts, parking lots, fixtures, track and field facilities, and permanent lighting structures. 1.1.6 PREMISES; LEASED PREMISES: The Land and the Improvements as defined herein more particularly shown on Exhibit A. 1.1.7 UNIVERSITY: University of North Carolina at Chapel Hill 1 groundlease- rev -cl2. orange 1.2 Exhibits. The following exhibits are attached to this Lease and are made part of this Lease: EXHIBIT A —The Land EXHIBIT B— Building Architectural/Engineering Plans and Specs EXHIBIT C— Construction Schedule ARTICLE II. PREMISES. TERM, AND USE. 2.1 Leased Premises. Upon the terms, provisions and conditions hereof, and each in consideration of the duties, covenants and obligations of the other hereunder, Landlord (acting through University of North Carolina at Chapel Hill) hereby leases to Tenant and Tenant hereby leases from Landlord that certain land owned by Landlord and located in the Towns of Chapel Hill and Carrboro, Orange County, North Carolina and more particularly described on Exhibit A, attached hereto and made a part hereof (the "Land "), together with all other improvements now or hereafter located thereon (the "Improvements "), and the Land and Improvements are referred to herein collectively as the "Leased Premises" or the Premises "). TO HAVE AND TO HOLD said Land and Premises, together with all privileges and appurtenances thereunto belonging, to Tenant, its successors and assigns for the term and upon the conditions hereinafter set forth, to which Landlord and Tenant hereby agree as follows: 2.2 rm. The initial term of this lease shall be for a period of Thirty (30) years commencing upon I (Commencement Date). Two years before the expiration of the initial term, Landlord and / nant shall negotiate the terms for continuation or renewal of the lease. It is acknowledged by both parties that Landlord only received approval from the Council of State for a Thirty (30) year lease. However, in recognition of the fact that Tenants will be spending approximately Five Hundred Thousand Dollars ($500,000) on construction on the Leased Premises and in further recognition that upon expiration of the term, the Land reverts to Landlord, both parties agree to negotiate such additional terms as may be appropriate and permissible under the circumstances at that time. Upon expiration and non - renewal of the lease, Tenant reserves the right to terminate Landlord's joint use of Tenant's facilities as provided in Section 6.3. 2.2.1 Ownership of the Improvements: Surrender of Premises. During the term, ownership of the Improvements constructed by the Tenant shall be in Tenant. Upon the termination of the Lease, ownership of the Improvements constructed by or on behalf of Tenant shall be in Landlord. Throughout the Term of this Lease, any liens, encumbrances, mortgages, or claims of third parties including construction lenders and permanent lenders with respect to any property which may be deemed owned by the Tenant, including the Improvements and any part thereof, shall be expressly subordinate and subject to the rights of Landlord. At the final termination of this Lease and all extensions thereto, Tenant will promptly quit and surrender the Premises including any Improvements constructed by Tenant in good order, condition, and repair, ordinary wear and tear and damage by condemnation and casualty excepted. Within six (6) months of termination hereof, Tenant may remove from the Premises any trade fixtures, equipment, and moveable furniture placed at the Premises by Tenant, whether or not such trade fixtures or equipment are fastened to the Premises. Whether or not Tenant is in default, Tenant will remove such trade fixtures, equipment and furniture as Landlord shall have requested. Tenant will make reasonable repairs of any damage occasioned by the removal of any trade fixtures, equipment, and furniture. All trade fixtures, equipment, furniture, inventory, effects, not so removed will be deemed conclusively to have been abandoned and may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant or any other person and without obligation to account for them. 2.2.2 Lease Year. The term "Lease Year" as used herein shall mean a period of twelve (12) consecutive full calendar months. The initial Lease Year shall begin on the first day of the first calendar month following the Commencement Date. Each succeeding Lease Year shall commence upon the anniversary date of the initial Lease Year. r ` groundlease- rev -cl2. orange 2.3 legs . The Premises shall be used exclusively for the following purposes and such use shall be undertaken in a manner which complies with applicable law as now or hereafter enacted or construed: Athletic Facilities Adjacent to Middle School. ARTICLE III. RENT, COMMON AREAS. OTHER COSTS 3.1 Land Rent. The Land Rent shall be One Dollar and No Hundredths ($1.00) for the initial Term of the lease and any extensions thereof. ARTICLE IV. CONSTRUCTION OF LEASED PREMISES. 4.1 Submittal of Plans. Following the execution of this Lease, Tenant (or its Sub - Tenant) agrees to submit to Landlord for its approval, complete architectural and engineering plans and specifications for the Leased Premises (the "Plans ") identified at P-xhibit B, prepared by Tenant's architects and engineers, describing all work required to construct improvements upon the Leased Premised. Tenant (or its Sub - Tenant), at Tenant's expense, shall cause the Improvements constructed for or on behalf of Tenant to be constructed in good and workmanlike manner and in strict compliance with applicable law and regulations, including but not limited to environmental and construction permits and the Improvements shall when complete be and continue to be in conformity with all applicable laws, including, but not limited to, all applicable building codes. All regulatory fees (including acreage fees, development fees, tap fees, and the like) solely applicable to the Leased Premises levied by the Town of Chapel Hill, Town of Carrboro, Orange County, or the State of North Carolina shall be paid by Tenant. 4.2 Commencement/Completion of the Improvements. Tenant agrees to commence construction of the Improvements reflected in the Plans and to complete the construction thereof based upon Tenant's construction schedule identified at Exhibit C or as same may from time to time be altered. Construction shall be deemed complete upon the issuance of an Unconditional Certificate of Compliance (or equivalent certificate as may then be issued) by Town of Chapel Hill and/or the Town of Carrboro, North Carolina. Notwithstanding the foregoing, the Landlord may terminate this lease if construction is not begun within 365 days of the Commencement Date or if the construction not completed (as deemed above) within three (3) years from the date construction begins. Upon completion of construction, Tenant shall deliver to Landlord a Certificate of Substantial Completion executed by the architect for the Improvements and a complete set of as -built Plans for the Improvements. Tenant shall thereafter furnish Landlord with copies of the updated Plans showing all changes and modifications thereto (if any). Tenant shall also famish to Landlord copies of Certificates of Occupancy or other similar documents issued to certify completion of construction in compliance with applicable requirements. 4.3 Inspection of Construction. Landlord shall have the right to enter upon the Leased Premises during construction for the purpose of inspecting the ongoing construction of any Improvements located on the leased premises. Landlord reserves the right to inspect construction in progress to assure that work conforms to the plans and specifications approved by the Landlord and the Office of State Construction and Department of Insurance. Tenant and Sub -Tenant agree that they will permit inspections by representatives of the Office of State Construction and the Department of Insurance. 4.4 Performance Guaranty and Financing Approval. No construction of the Improvements shall commence until Tenant has provided evidence, reasonably satisfactory to Landlord, that there has been (1) a binding commitment or allocation of sufficient funds by Tenant to complete the construction of the Improvements, and (2) Tenant has made a legally binding commitment to complete the construction of the Improvements using the funds so allocated. 4.5 Allocation of Responsibility. During the term of this Lease, Tenant shall be responsible for the Premises and, to the extent permitted by law, Landlord shall have no liabilities, obligations or responsibilities whatsoever with respect thereto or with respect to any plans or specifications submitted to Landlord pursuant to this Lease. Landlord's review of any plans or specifications is solely for Landlord's own purposes and Landlord does not make any warranty concerning the appropriateness of any such plans or groundlease- rev -c12. orange specifications for any other purpose. Landlord's review of (or failure to review) any such plans or specifications as may be submitted to it shall not render Landlord liable therefore. Nothing contained in this Lease shall constitute any consent or request by Landlord, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect to Premises or any part thereof, nor as giving Tenant any right, power, or authority to contract for or permit the performance of any labor or services or the claim against Landlord in respect thereof. ARTICLE V. LANDLORD'S COVENANTS. 5.1 Landlord's Obligations. Subject to Tenant's performance of its obligations hereunder, Landlord makes the following assurances to Tenant: 5.1.1 Assistance of Landlord. Landlord shall act reasonably to cooperate with Tenant in executing such documents and instruments as shall be required by governmental agencies to construct any Improvements, and to obtain the licenses and permits required by applicable law to operate the Leased Premises in accordance with the permitted use thereof under Section 2.3. 5.1.2 Quiet Enjoyment. Landlord covenants and agrees with Tenant that so long as Tenant pays the rent and observes and performs all the terms, covenants, and conditions of this Lease on Tenant's part to be observed and performed, Tenant may peaceably and quietly enjoy the Premises subject, nevertheless, to the terms and conditions of this Lease, and Tenant's possession will not be disturbed by anyone claiming by, through, or under Landlord. ARTICLE VI. TENANT'S CONVENANTS. 6.1 Payments by_Tenant. Tenant agrees to timely pay all rents and sums due to Landlord at the times and in the manner herein provided. 6.2 Licensing of Premises. Tenant shall obtain all licenses and permits, and comply with all statues, laws and regulations for the construction of any Improvements and the operation for the Leased Premises in accordance with the permitted use thereof under Section 2.3. 6.3 apace for UNC -CH School of Education. Landlord enters into this lease on the condition that Tenant agrees to designate 2,000 square feet of space in the Smith Middle School to be constructed on school property adjacent to the Premises for the use of the UNC -CH School of Education. Should Tenant fail to provide such space or deny UNC -CH School of Education access to such space, this lease shall terminate immediately. Likewise, shall Landlord and Tenant fail to reach an agreement to renew the lease upon its expiration, Tenant may terminate such access. The Tenant shall be responsible for constructing and fmishing the space in accordance with plans and specifications agreed to by the parties. During the Term of this lease Tenant shall be responsible for all maintenance and utilities for the space provided. Normal and customary custodial care shall be provided for this space by Tenant on the same basis such custodial care is provided for other parts of the school building. If UNC -CH School of Education uses the space during evening and weekend/holiday hours, then UNC -CH School of Education shall be responsible for any additional custodial maintenance and HVAC charges appropriate to the amount of building space used and operating time of the system required by such use. The space is to be provided as finished square footage, with all furnishings and trade fixtures to be installed and provided by UNC -CH School of Education. It is contemplated by the parties that the UNC -CH School of Education uses of the space will include the off campus center for the North Carolina Teaching Network, as a location for establishing the Research Triangle Professional Development School Partnerships, and as a center for supervising UNC -CH Teaching Fellows and other UNC -CH students in practicum assignments in this or nearby Schools. The University and the Sub -Tenant have agreed to enter into a separate use agreement concerning the details of the use of this Tenant provided space within 90 days following execution of this lease, but in no event later than groundlease- rev -c12. orange occupancy by Sub -Tenant of the Smith Middle School. Landlord authorizes the University to approve and execute this separate use agreement on behalf of Landlord. 6.4 Repairs, Maintenance and Care of the Premises. By possession or occupancy of the Premises, Tenant acknowledges that it has inspected the Premises and fords the Premises to be satisfactory and in conformity to the obligations of the Landlord upon delivery of the Premises to the Tenant. Tenant shall maintain the Leased Premises in a clean, attractive condition, and not commit or allow any waste or damage to be committed on or to any portion of the Leased Premises, ordinary wear and tear excepted. All maintenance and repair of the Leased Premises and any Improvements shall be the responsibility of Tenant and Tenant shall (at Tenant's expense) keep and maintain in good repair the whole of the Leased Premises. Landlord shall have no obligation or responsibility for such maintenance. Tenant will promptly repair any damage to the Premises or any Improvements. Excepted from this requirement is any damage caused by Landlord or its Agents and contractors. 6.5 Compliance with Laws. Tenant, at Tenant's expense, shall comply with all federal, state, municipal and other laws, regulations and ordinances and rules and regulations of University of North Carolina at Chapel Hill applicable to the Project (including the rules and regulations of its Public Safety Office) now or hereafter in effect applicable to its construction, use, occupancy, and operations in respect to the Premises, and any Improvements, including license and permit requirements, and will not commit or permit waste in respect to the Leased Premises. 6.6 Utilities. Tenant shall provide and maintain its own electrical, gas, telephone, water and sewer, garbage and refuse removal and other utility services with respect to the Leased Premises and shall bear all expenses in thereto, including, any connection charges. 6.7 . Tenant may not erect, install or display any sign other than school identification signs on the Premises, without prior written consent of the Landlord, acting through the University of North Carolina at Chapel Hill. Tenant shall not use the name of The University of North Carolina at Chapel Hill or any mark or logo or depiction of any of the foregoing without the written consent of The University of North Carolina at Chapel Hill. 6.8 Continuous Use of Leased Premises. Tenant covenants and agrees that it shall occupy and continuously conduct business at the Leased Premises for the uses permitted under Section 2.3 commencing upon the Commencement Date and continuously thereafter. 6.9 Landlord's Right of Access. Landlord and its authorized representatives shall have the right to enter the Leased Premises at reasonable hours after notification to school personnel for the purposes of inspecting the Leased Premises and for excavation and installation of utilities and other improvements associated with the development of adjacent properties. 6.10 Americans With Disabilities Act. Tenant represents and covenants that it shall construct any Improvements and shall conduct its occupancy and use of the Leased Premises in accordance with the provisions of Title III of the Americans With Disabilities Act (the "ADA ") and any similar state law by including, but not limited to, modifying its policies, practices and procedures as may be necessary to comply therewith, and providing auxiliary aids and services to disabled persons as required thereunder. All construction, alteration, and improvement of the Leased Premises shall comply, and Tenant represents and warrants that the plans and specifications submitted in respect to any Improvements or any alterations thereof or general alterations with respect to the Leased Premises are in compliance, with the ADA and any similar state law and, upon request of Landlord, Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord that such work was performed in compliance therewith. groundlease- rev -cl2. orange ARTICLE VII. MUTUAL COVENANTS: DEFAULT: ADDITIONAL MATTERS. 7.1 Fire or Other Casualty. If the Leased Premises is destroyed or partially damaged by fire or other casualty so as to render the Leased Premises untenantable in whole or in part ( "the Casualty Event "), Tenant must construct and rebuild the Improvements previously existing on the Leased Premises. Notwithstanding the above, the Tenant is not obligated to construct and rebuild the Improvements previously constructed on the leased premises under either of the following circumstances: (a) the Casualty Event occurs after the lease has expired; or (b) on the date of the Casualty Event, the Term has less than 15 years to run. 7.2 Condemnation. If a portion of the Leased Premises is taken by exercise of the power of eminent domain (or conveyed by Landlord in lieu of such exercise) and the usefulness of the Leased Premises for Tenant's purposes is not materially abrogated thereby, no part of the award or purchase price shall be claimed by Tenant. If all of the Leased Premises (or so much thereof as to materially abrogate the usefulness thereof for Tenant's purpose) are taken by exercise of the power of eminent domain (or conveyed by Landlord in lieu of such exercise), this Lease will terminate on a date (the "Condemnation Date ") which is the earlier of the date upon which the condemning authority takes possession of the Leased Premises or the date on which title to the Leased Premises is vested in the condemning authority and Tenant and Landlord shall each participate in the award or purchase based upon the amount of loss suffered by each. 7.3 Insurance. 7.3.1 Tenant's Insurance. At all times during the Term of this Lease, Tenant shall carry and maintain at its sole cost and expense, the following insurance in the amounts specified below or such other amounts as Landlord and Tenant may from time to time agree upon, with insurance companies and on forms satisfactory to Landlord and Tenant: 7.3.1.1 Fire and Extended Coverage Insurance. Fire and extended coverage insurance covering all leasehold Improvements in the Premises and all of Tenant's merchandise, equipment, trade fixtures, appliances, furniture, furnishings, and personal property from time to time, on, or upon the Premises, in an amount not less than the full replacement cost without deduction for depreciation from time to time during the term of this Lease, providing protection against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief, special extended peril (all risk), boiler, flood, vandalism, glass breakage, and sprinkler leakage. 7.3.1.2 Workmen's Compensation Insurance. Workmen's compensation insurance insuring against and satisfying Tenant's obligations and liabilities under the workmen's compensation laws of North Carolina, as the same may be amended from time to time. 7.3.2 Forms of Policies. Original or copies of original policies and evidence of the payment of all premiums of such policies shall be delivered prior to Tenant's occupancy of the Premises and from time to time at least thirty (30) days prior to the expiration of the term of each such policy. All such policies maintained by Tenant shall be purchased only from insurers who are licensed to do business in the State of North Carolina, comply with the requirements thereof, and who carry A.M. Best Company rating of "A" or "A +" and will provide that they may not be terminated or amended except after thirty (30) days' prior written notice to Landlord. Notwithstanding the foregoing, nothing herein shall preclude the Tenant from providing self insurance, so long as the level of insurance protection required by this Agreement is maintained, and the Tenant has sufficient reserves to meet its insurance obligation. 7.3.3 Adequacy of Coverage. Landlord, its Agents and employees make no representation that the limits of liability specified to be carried by Tenant pursuant to this Article VII are adequate to protect Tenant. If Tenant believes that any of such insurance Coverage is inadequate, Tenant will obtain, at Tenant's sole expense, such additional insurance coverage as Tenant deems adequate. 6 groundlease- rev- c12.orange 7.3.4 Waiver of Subrogation. To the extent they are able to do so, each of Landlord and Tenant hereby releases the other from any loss or damage to property caused by fire or any other perils insured through or under either by way of subrogation or otherwise for any loss or damage to property caused by fire or any other perils insured in policies of insurance covering such property, even if such loss or damage shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible; provided, however, that this release shall be applicable and in force and effect only with respect to the loss or damage occurring during such times as the releasor's policies shall contain a clause or endorsement to the effect that any such release shall not adversely affect or impair said policies or prejudice the right of the releasor to recover thereunder and then only to the extent of the insurance proceeds payable under such policies. Each of Landlord and Tenant agrees that it will request its insurance carriers to include in its policies such a clause or endorsement. If extra cost shall be charged therefor, each party shall advise the other thereof and of the amount of the extra cost, and the other party, at its election, may pay the same, but shall not be obligated to do so. 7.4 Holdine Over. This Lease shall terminate at the end of the original term or any extensions thereof hereof without the necessity of any notice from either Landlord or Tenant to terminate same and Landlord's right to the Leased Premises shall be as stated in Section 2.2.1 and elsewhere herein, and Tenant hereby waives notice to vacate the Leased Premises and agrees that Landlord shall be entitled to the summary recovery of possession of the Leased Premises should Tenant hold over to the same extent as if statutory notice had been given. If Tenant should remain in possession of the Leased Premises after the termination or expiration of the Term without the execution by Landlord and Tenant of a new lease, then Tenant shall be deemed to be occupying the Leased Premises as a tenant -at- sufferance, subject to all the covenants and obligations of this Lease and at rental equal to the rental in effect immediately prior to the expiration or termination, but such holding over shall not extend the Term. 7.5 Assignment. Landlord expressly consents to the assignment by Tenant to Sub -Tenant of all of Tenant's rights and obligations hereunder and, upon such assignment, Landlord releases Tenant from any obligation or liability to Landlord existing by virtue of this Lease except for Tenant's obligations in Section 8.10. By accepting such assignment Sub -Tenant accepts and assumes all of Tenant's rights, obligations and liabilities existing by virtue of this Lease. Except as expressly permitted herein Tenant shall not, by operation of law or otherwise, assign, mortgage, pledge, encumber or otherwise transfer any interest in this Lease, nor sublet the Leased Premises or any part thereof to anyone other than Sub -Tenant without the prior written consent of Landlord. Sub -Tenant shall not, by operation of law or otherwise, assign, mortgage, pledge, encumber or otherwise transfer any interest in this Lease, nor sublet the Leased Premises or any part thereof to anyone without the prior written consent of Landlord. 7.6 7.6.1 Each of the following occurrences relative to Tenant shall constitute an "Event of Default ": 7.6.1.1 Failure or refusal by Tenant to make the timely payment of any rent or other sums payable under this Lease when and as the same shall become due and payable; or 7.6.1.2 Abandonment of the Leased Premises; or 7.6.1.3 Failure by Tenant in the performance or compliance with any of the agreements, terms, covenants or conditions under this Lease applicable to Tenant under this lease, for a period of sixty (60) days after notice from Landlord to Tenant specifying the items in default. 7.6.2 This Lease and Term and estate hereby made are subject to the limitation that if any Event of Default shall occur, Landlord may, at Landlord's option and without order of any court or further written notice to Tenant, in addition to all other remedies given hereunder or by the law or equity groundlease- rev -c 12. orange and without limiting in any manner whatsoever any other options available, do any one or more of • the following: 7.6.2.1 Terminate this Lease in which event Tenant shall immediately surrender possession of the Leased Premises to Landlord; 7.6.2.2 Enter upon or take possession of the Leased Premises, securing it against unauthorized entry and expel or remove Tenant and any other occupant therefrom with or without having terminated the Lease; 7.6.2.3 Pursue any other remedy available at law, or in equity. 7.6.3 If Tenant should fail to make any payment, perform any obligation, or cure any default as previously provided in this Agreement, Landlord, without obligation to do so and without thereby waiving such failure or default, may make such payment, perform such obligation, and/or remedy such other default for the account of Tenant (and enter the Leased Premises for such purpose), and Tenant shall pay upon demand all reasonable costs, expenses and disbursements (including reasonable attorney's fees) incurred by Landlord in taking such remedial action. 7.6.4 Upon termination or repossession of the Leased Premises or an event default, Landlord shall not be obligated to relet or attempt to relet Leased Premises, or any portion thereof, or to collect rental after reletting, but Landlord shall have the option to relet or attempt to relet. In the event of reletting, Landlord may relet whole or any portion of the Leased Premises for any period, to any tenant and for any use or purpose. 7.7 Landlord's Default. Landlord shall in no event be in default in the performance of any of Landlord's obligations hereunder unless and until Landlord shall have failed to perform such obligations within sixty (60) days (or such additional time as is reasonably required to correct any such default) after written notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation. Landlord shall have no liability for any incidental or consequential damages of Tenant, or anyone claiming by, through or under tenant, for any reason involving the leased premises. Liability for damages relating to Landlord's use of Tenant's property shall be governed by the separate use agreement. 7.8 Interest of Landlord. This Lease and the interest of Landlord hereunder shall be prior, superior and paramount to the lien of any mortgage, or deed of trust which may now or hereafter affect the interest of Tenant in and to the Leased Premises, or any part thereof. ARTICLE VIII. MISCELLANEOUS. 8.1 Environmental Matters. 8.1.1 Tenant shall not cause or permit any Hazardous Material (as hereinafter defined) to be brought upon, kept, or used in or about the Leased Premises, or any Improvements by Tenant, its agents, employees, contractors, or invitees, except for such Hazardous Material as is necessary for the operation of Tenant's business. 8.1.2 Any Hazardous Material permitted on the Leased Premises as provided in subparagraph (8.1.1) hereof and all containers therefor, shall be used, kept, stored, transported or disposed of in a manner that complies with all federal, state, and local laws and regulations applicable to such Hazardous Material. 8.1.3 Tenant shall not discharge, spill, leak, emit, dispose of; or permit to be discharged, spilled, leaked, emitted, or disposed of any material on, at, or in the Leased Premises or the Improvements or into the atmosphere, ground, sewer system, or any body of water, if that material (including without groundlease- rev -c12. orange limitation materials which may be so determined by any governmental authority or so designated by notice from the Landlord to the Tenant) does or may pollute or contaminate the same, or may adversely affect (i) the health, welfare, or safety of persons whether located in or at the Leased Premises, Improvements, or elsewhere, or (ii) the condition, use or enjoyment of the Leased Premises or any other real or personal property. 8.1.4 At the commencement of each Leased Year, Tenant shall disclose to Landlord the names and approximate amounts of all Hazardous Material for which Tenant is required to file any city, county, state or federal reports that Tenant intends to use, keep store, transport, or dispose of (or allow any such activity) on the Leased Premises. In addition, Tenant shall disclose to Landlord the names and amounts of all such Hazardous Materials that were actually used, kept, stored, transported, or disposed of on the Leased Premises if those materials were not previously identified to Landlord. 8.1.5 As used herein, the term "Hazardous Material' means (i) any "hazardous waste" as defined by the Resource Conservation and Recovery Act of 1976, as amended from time to time, and the regulations promulgated thereunder, (ii) any "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended from time to time, and regulations promulgated thereunder; (iii) any material or substance regulated by the Toxic Substances Control Act as amended from time to time and regulations promulgated thereunder; (iv) and any material or substance regulated by the Federal Insecticide, Fungicide and Rodenticide Act, as amended from time to time, and the regulations promulgated thereunder; (v) any oil, petroleum products, and their by- products; and (vi) any other hazardous, toxic or dangerous material or substance that is or becomes regulated by any federal, state or local law or regulation, including but not limited to radioactive materials. 8.1.6 Tenant hereby agrees that it shall be fully liable for all costs and expenses related to the use, storage, transportation or disposal of any Hazardous Material on the Leased Premises by the Tenant, and the Tenant shall give immediate notice to the Landlord of any known violation or potential violation of the provisions of subparagraph (8.1.2) hereof. 8.1.7 Prior to the commencement of construction of any Improvements, an environmental audit regarding the Leased Premises shall be conducted by a qualified environmental auditor selected by Tenant consisting at a minimum of a Phase I audit and at such additional levels as is reasonably sufficient to determined the environmental condition of the Leased Premises at the commencement of the Lease. The cost of the environment audit shall be borne by the Tenant. 8.2 Notices and Payments. Any notice or payment which may or shall be made under the terms of this Lease shall be in writing (in the case of a notice) shall be either delivered by hand or sent by United States Registered or Certified Mail, Return Receipt Requested, or by any overnight mail service (e.g. Federal Express, United Parcel Services), postage prepaid, to the address set out in Article I hereof or to such Address as may be contained in a notice given as provided above. 8.3 Short Form. Upon request by either party, the parties shall execute and record a memorandum or Short form of this Lease setting forth such provisions hereof as either party may wish to incorporate. 8.4 Entire Agreement. This Lease and any written addenda referred to herein and all exhibits hereto expressly referred to herein (which are expressly incorporated herein by this reference) shall constitute the entire agreement between Landlord and Tenant and no prior written or prior or contemporaneous oral promises or representations shall be binding. This Lease shall not be amended, changed or extended except by written instrument signed by both parties hereto. 8.5 Interpretation: Governing Law. Pronouns, where used herein, of whatever gender, shall include natural persons, corporations, and associations of every kind and character, and the singular shall include the plural and vice versa where and as often as may be appropriate. Article and section headings under this Lease are for convenience of reference and shall not affect the construction or interpretation of this Lease. Whenever groundlease- rev -c12. orange the terms "hereof," "hereby," "herein," or words of similar import are used in this Lease, they shall be construed as referring to this Lease in its entirety rather than to a particular section or provision, unless the context specifically indicates to the contrary. Any reference to a particular "Article" or "Section' shall be construed as referring to the indicated Article or Section of this Lease. Statements herein in respect to compliance with applicable law or text of similar import shall be construed to require compliance with applicable law as now or hereafter in effect. The laws of the State of North Carolina shall govern the validity, performance and enforcement of this Lease and this Lease shall be construed pursuant to such law. 8.6 Binding Effect. The provisions of this Lease shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns or the parties, but this provision shall in no way alter the restrictions on assignment and subletting applicable to Tenant hereunder. 8.7 Relationship of the Parties. This Lease shall not act to create the relationship of partner or joint venturer between Landlord and Tenant. 8.8 Severability. In the event any term, covenant or condition of this Lease or the application thereof to any Person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant or condition of this Lease shall be valid and enforceable to full extend permitted by law. 8.9 Construction of Lease: Negotiation by the Parties. Landlord and Tenant have each had an opportunity through their appointed representatives or otherwise to discuss and negotiate the terms of this Lease and are informed and capable of evaluating the contents thereof. Accordingly, this Lease shall not be construed either for or against Landlord or Tenant whether or not a specific provision thereof was drafted by or on behalf of the Landlord or Tenant, as the case may be. 8.10 Liability. All parties hereto and Sub -Tenant are governmental entities; therefore, each party to the extent authorized by law, shall be liable for claims and liabilities arising by virtue of or relating to this lease or any negligent acts or omissions of their employees and agents; and Subtenant shall be responsible for all claims arising out of or from the use of plans and specifications for and the construction of any Improvements located on the Leased Premises; and Tenant and Sub - Tenant, as their interests may appear, shall be responsible for all claims arising out of or from the ownership, operation and management of any Improvements located on the Leased Premises. 8.11 No Waiver. The waiver by Landlord of any agreement, condition, or provision contained in this Lease will not be deemed a waiver of any subsequent breach of the same or any other agreement, condition, or provision contained in this Lease, nor will any custom or practice that may grow up between the parties in the administration of the terms of this Lease be construed to waive or lessen the right of Landlord to insist upon the performance by Tenant in strict accordance with the terms of this Lease IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument as of the day and year first above written. LANDLORD: TATE OF NORTH CAROLINA ATT By: By: f te vernor Secretary o 10 groundlease- rev -c12. orange ATTEST- By: ever y A. e, Clerk to Board of ommissioners TENANT: ORANGE COUNTY, NORTH CAROLINA By: W . Stephen H. Halkiotis, Chair, Orange County Board of Commissioners This instrument has been preaudited in the manner required by The Local Government Budget and Fiscal Control Act. Kenneth T. Chavious, Finance Officer Orange County, North Carolina STATE OF NORTH CAROLINA COUNTY OF, WAKE I, C h�e rH I L . Yh, r s a Notary Public in and forte County and State aforesaid, do hereby certify that 1E Ica i n ems, M 04 f J h'& l l , 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 MICHAEL F. EASLEY, Governor 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 C , . , 2001. - n Notary Public My commission, expires: ! (SEAL) NORTH CAROLINA COUNTY OF ORANGE I, "a r1G V P Q C 1 q 0. a Notary Public of the County and State aforesaid, certify that V A. \311Virhe , personally appeared before me this day and acknowledged that she is the Clerk of the Orange CounV Board of Commissioners, and that by authority duly given, the foregoing instrument was signed in its name by 6te,D H. "aN Otl , Chair of the Orange County Board of Commissioners, and attested by e ev` 1 as its Clerk. Witness my hand and official stamp r seal, this' ay of ay , 2001. My commission expires: A u q L-tSk -611 -z � (SEAL) 11 tary Ei Pu Exhibit A BEING all that tract of land containing 16.62 acres, more or less, located in Chapel Hill Township, Orange County, North Carolina; and bounded, now or formerly, by.natural boundaries and/or owned be and/or in possession of persons as follows: On the north and east the Chapel Hill City Board of Education, Inc., on the south by University of North Carolina at Chapel Hill, and on the west by K.R. Proctor and H.H. Yates; and being more particularly described by courses and distances according to a drawing by Corley Redfoot Zack, Inc. entitled Athletic Fields for Chapel Hill /Can'boro Board of Education Homestead Road, project number 9818, sheet LA-1, dated 1 /11 /01, as follows: BEGINNING at the northeast comer of the University of North Carolina at Chapel Hill tract as recorded in deed book 1752 at page 32 and a common comer with the Chapel Hill City Board of Education, Inc., thence with the Chapel Hill City Board of Education, Inc. the following two calls: (1) S00°- 58' -06 "W, 740.62 feet to an iron pipe, and (2) S01°- 00' -19 "W, 473.94 feet to an iron pipe; thence new lease lines across University of North Carolina at Chapel Hill property the following six calls: (1) West, 438.12 feet to a point, (2) N49 °- 31' -27"W, 145.30 feet to a point, (3) N49 °- 29' -45 "W, 159.53 feet to a point, (4) N47 ° -48' -30 "W, 67.41 feet to a point, (5) with a curve to the left having a radius of 230.00 feet a chord bearing and distance ofNT54°- 02 -53"W, 50.00 feet to a point, and (6) N600-17'-1 5"W, 24.39 feet to an iron pipe; thence with K-R- Proctor the following three calls: (1) with a curve to the left having a radius of 910.39 feet a chord bearing and distance ofN27 °- 23' -01 "E, 96.48 feet to an iron pipe, (2) with a curve to the left having a radius of 187.67 feet a chord bearing and distance of N24 °- 22' -20 "E, 32.20 feet to an iron pipe, and (3) with a curve to the left having a radius of 915.37 feet a chord bearing and distance of N20 °- 3I' -28" E, 89.79 feet to an iron stake; thence with H.H. Yates the following four calls: (1) N17°- 38' -50 "E, 166.52 feet to an iron pipe, (2) with a curve to the left having a radius of 6260.00 feet a chord bearing and distance of NI 6 °- 59' -48 "E, 149.06 feet to an iron pipe, (3) S89 ° -01' -54 "E, 130.59 feet to an iron pipe, and (4) N00 °- 58' -06"E, 430.87 feet to an iron pipe; thence with the Chapel Hill City Board of Education, Inc. N89 °- 54' -OT'E, 481.33 feet to the BEGINNING iron pipe. For reference purposes for source of title see: deeds in book 1752 at page 32 and book 1750 at page 470. 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