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HomeMy WebLinkAbout2021-171-E Solid Waste-RLSL Walters Properties lease agreement DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE Prepared by: Joseph E. Herrin, Orange County Attorney's Office Mail after recording to: Robert Williams, Orange County Solid Waste, P.O. Box 17177, Chapel Hill,NC 27516 NORTH CAROLINA LEASE AGREEMENT AND RIGHT OF FIRST REFUSAL ORANGE COUNTY THIS AGREEMENT made and entered into this 6k day of �(Aowavu 20 9, , by and between Orange County, a body politic and corporate of the State of North Carolina, (hereinafter called the "County"), and RLSL Walters Properties, LLC (hereinafter called the "Owner"); WHEREAS, on May 16, 2012, the County and Elizabeth T. Walters entered into a certain lease ("the 2012 lease") recorded in Book 5368 at Page 576, Orange County Registry, whereby Elizabeth T. Walters leased to the County for a period of ten(10)years, commencing July 1,2012, the premises known and described in Deed Book 220 at Page 195, Orange County Registry; WHEREAS, on May 14, 2014, Elizabeth T. Walters and Roland L. Waiters acquired by North Carolina Warranty Deed recorded in Deed Book 5793 at Page 500, Orange County Registry, the 10.01 acres identified as"Tract A"on a plat recorded in the records of the Orange County Register of Deeds at Plat Book 84, Page 152 ("the Property"); WHEREAS, on September 28, 2017, RLSL Walters Properties, LLC, acquired by North Carolina General Warranty Deed recorded in Deed Book 6374 at Page 181, Orange County Registry, the Property subject to the 2012 Lease; WHEREAS,the County intends to make significant improvements to the solid waste convenience center located on the Property at a substantial financial investment; WHEREAS, the parties have mutually agreed to the termination of the existing lease of the premises upon the "effective date" as indicated below, of the new lease of the premises described herein, subject to the terms and condition of this lease agreement("Lease Agreement"); WITNES SETH: The Owner hereby agrees to lease the property described herein to the County upon the following terms and conditions: 1. The Premises. The premises herein leased is a tract and parcel of land, together with all improvements located thereon, located in Cedar Grove Township, Orange County,North Carolina and more particularly described in Deed Book 220 at Page 195, Orange County Registry. DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE 2. The term of this lease shall be for an Initial term of 20 years commencing on March 1, 2021, hereinafter referred to as the "effective date". Except as herein otherwise provided, all terms and covenants contained in this Lease Agreement shall be in full force and effect during any extension period unless otherwise agreed upon in writing by both parties. 3. Guaranteed Minimum Rental. The County agrees to pay to the Owner the guarantee rental of$1,312.50 per month(hereinafter referred to as the "Rental Rate") during the Term of the lease, payable on or before the 1 Oth day of each calendar month commencing with the effective date of this Lease Agreement, 4. Right of First Offer to Purchase and Right of First Refusal. a. Subject to the terms of this Lease,the Owner expressly reserves the right to sell the Premises at any time during the Term, including any extension thereof. In the event the Owner sells,transfers, or exchanges the Premises or any portion of the Premises, the following shall pertain: i. Subject to the terms of this Lease,the Owner may sell, transfer, or exchange the Premises or any portion of the Premises to Roland L. Walters and/or Stacey R. Walters (hereinafter, "the Managing Member" or collectively, "Managing Members") as an individual or remaining member,provided however,the Owner shall obtain the written agreement, in form satisfactory to the County, of any Managing Member of the Owner company acquiring the Premises or any interest therein, that such acquisition is subject to the requirements of this Lease. The Owner agrees that the County may void any sale,transfer, or exchange of the Premises or any portion of the Premises if the member interest holder fails to assume in writing the requirements of this Lease. ii. Any assignment, sale, transfer, conveyance, or other disposition of the Premises or any part of the Premises to a person or entity other than that described in sub-paragraph 4.(a)(i), above, shall be subject to the following: 1. The Owner covenants that it will not list nor offer the Premises for sale without first giving the County written notice in the manner prescribed in Section 8 of this Lease Agreement, of its desire to sell the Premises and having allowed County ninety (90) days from the date of such notice in which to attempt to secure a binding agreement with the County for the purchase of the Premises. The Owner agrees that any and all offers to purchase submitted by the County during said ninety-day period will be held in strictest confidence, will be given every reasonable consideration in good faith and if unacceptable, will remain confidential and will not be used at any time to enhance its efforts to otherwise market said Premises. DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE 2. The Owner further grants to the County during the Term, including any extension thereof,the exclusive right at the County's option, to purchase the Premises on the same terms and at the same price as any bone fide offer, and each time any such bona fide offer is received,the Owner shall immediately notify County in the manner prescribed in Section 8 of this Lease Agreement, with full details of such offer including a copy of the same (the name and address of the offeror may be omitted if County is unwilling or unable to maintain the name and address of the offeror confidential). County shall have ninety (90) days from the date of notice in which to elect to exercise this right of first refusal. No sale or transfer of title to the Premises shall be binding on the Lessee unless and until these requirements are fully complied with. This provision shall not pertain to a sale,transfer, exchange, or assignment of the Premises to a Managing Member of Owner company,provided the Managing Member agrees to acquire the Premises subject to the terms of this Lease as described in sub- paragraph 4.(a)(i), above. b. The right of first refusal herein granted shall be continuing and pre-emptive, binding on Owner's successors or assigns, and the failure of County to exercise this right in any one case shall not affect the County's right to exercise the right of first refusal in other cases thereafter arising during the Term or any extension of the Term. c. Upon Owner and County reaching a binding written agreement for the purchase and sale of the Premises, or upon Owner's receipt of County's notice of election to exercise any right of first refusal granted herein, County shall have a reasonable time in which to examine title to the Premises, but in no event more than ninety (90) days and upon completion of such examination, if the title is found to be satisfactory, County shall tender the purchase price to Owner and Owner shall thereupon deliver to County a good and sufficient Warranty Deed conveying the Premises to the Lessee free and clear of all encumbrances. The rent shall be pro- rated between the Owner and County as of the date of the closing of the purchase and sale of the Premises. Current year's ad valorem property taxes on the Premises shall be paid or prepaid by Owner (grantor) with County's (grantee's)pro-rated share of those taxes added to the agreed purchase price. 5. Improvements and Maintenance. a. The County shall have the right to enter the Premises upon the execution and recording of this Lease Agreement and prior to the effective date of the lease and thereafter during the lease term to make any and all temporary improvements to the premises as deemed necessary and desirable to the County for the intended use of the premises, and to make permanent improvements as deemed necessary and desirable to the County for the intended use DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE of the premises. The intended use of the premises by the County will continue to be a Solid Waste Convenience Center. The County can only use the premises for the stated intended use unless the Owner and County agree otherwise in a written statement agreed upon and signed by all parties. The County shall continue to maintain a buffer strip, within the leased premises, around the Solid Waste Convenience Center of at least(40 feet) in width through the use of fencing and natural vegetation. This buffer shall be fashioned in a manner to permit entrance to the Solid Waste Convenience Center constructed on the premises from High Rock Road to the Solid Waste Convenience Center. b. All improvements to and maintenance of the leased premises, as well as any needed remediation and decontamination of the Premises caused by the lease of the premises by the County, shall be solely at the County's expense. Any improvements constructed or provided at the leased premises shall be, upon termination or expiration of the lease,the Premises of the Owner, unless the same can be removed by the County without damage to the leased premises. Provided,however, at Owner's request at the termination of the lease, the County shall remove all such improvements, unless the Owner and the County agree otherwise, in writing. At the termination of the lease, the County shall remove any trash, waste and soils contaminated by the County's use of the premises and take all proper and necessary remediation measures needed resulting from any water or soil contamination that occurred from the County's use of the leased premises. C. During the term of the lease the County shall be responsible for maintaining the leased premises in a neat, clean and orderly condition at all times and shall comply with the applicable Rules and Regulations set forth by the North Carolina Department of Environmental Quality relative to the operation and management of a Solid Waste Center, including North Carolina Administrative Code Title 15A Chapter 13 Solid Waste Management and North Carolina Administrative Code Title 15A Subchapter 2L Groundwater Classification and Standards. Roadways,parking areas, and other public access ways shall be maintained by the County. Fences and natural vegetation buffers installed on the leased premises by the County shall also be maintained by the County. Any additional ad valorem taxes resulting from any permanent improvements to the leased premises shall be responsibility of the County. 6. Taxes. Owner agrees to pay all taxes and assessments during the term of the lease, including but not limited to municipal, county and state taxes assessed against the leased premises which are incident to the ownership of the leased premises. 7. Representations and Warranties of Owner. Owner represents and warrants to the County (each of which representations and warranties shall be true as of the date Owner executes this Lease) as follows: a. The Owner has full right,power and authority to enter into this Lease Agreement and to consummate the lease contemplated herein. No person or entity has been granted any license, lease or other right relating to the use or possession of the DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE premises or any part thereof, except the County as expressly provided in this Lease Agreement. b. No person or entity has been granted an option to purchase, right of first offer or right of first refusal as to the Premises except the County and as otherwise set forth in Section 4 above as expressly provided in this Lease Agreement. c. To the best of the Owner's knowledge, there is not action, suit or proceeding pending or threatened against or affecting the Premises or any part thereof, or relating to or arising out of the Owner's ownership of the Premises 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 for the benefit of creditors or voluntary or involuntary proceeding in bankruptcy or under other debtor relief laws contemplated by or pending or threatened against the Owner or the Premises. d. There exists no contract, service agreement or obligation affecting the Premises which is in addition to or different from those which have been furnished or otherwise disclosed to the County. 8. Insurance and Indemnity a. The County shall at the County's expense obtain and keep in full force during the term of the lease Comprehensive Public Liability policy with limits of no less than$300,000/$300,000 for person injury or death and $100,000 for property damage applicable to the County's use of the leased Premises. The Owner shall be listed as an additional insured on the Compre- hensive Public Liability policy if permitted by the North Carolina Association of County Commissioner's Insurance Pool, at no cost to Owner. b. To the extent permitted by North Carolina law and to the extent provided for In insurance contracts owned by the County, the County shall indemnify and hold harmless the Owner from and against any and all claims arising from the conduct of the County's business or from any activity, work or things done, permitted or suffered by the County in or about the leased premises. 9. Notices. All notice to be given under this lease shall be made in writing and mailed by certified mail,return receipt requested to the other party at its address set forth below or at such address as the party may provide in writing from time to time. Any such notice shall be deemed to have been received upon the date signed for the return receipt. DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE OWNER: COUNTY: RLSL Walters Properties,LLC Department of Solid Waste Attn: Roland L. Walters Attn: Robert Williams 7119 High Rock Road P.O. Box 17177 Efland,NC 27243 Chapel Hill,NC 27516 10. Parties. This lease shall be binding and shall inure to the benefit of the parties and their heirs, successors, and assigns. 11. Entire Agreement. This lease contains the entire agreement of the parties and there are no other representations, inducement or other provisions except as set forth herein. All changes, additions or deletions hereto must be made in writing and signed by the parties. Any provision of this lease found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this lease. The waiver by the County or the Owner of any breach by the other of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach thereof. 12. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. By executing this Agreement Owner affirms that Owner and any subcontractors of Owner are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement Owner certifies that Owner has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement Owner certifies that Owner has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.81. 13. Non-Appropriation. The Owner acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event, that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement,then this Agreement shall automatically expire without penalty to County immediately upon written notice to the Owner of the unavailability and non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement,but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and/or mandated functions,by state and/or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to the Owner of such limitation or change in County's legal authority. [SIGNATURES ON FOLLOWING PAGE] DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE IN TESTIMONY WHEREOF,the parties hereto have executed this Lease Agreement and Right of First Refusal on the day and date first above written. RLSL WALTERS PROPERTIES,LLC: Z-, By: Roland L. Walters, Managing Member of RLSL Walters Properties, LLC m A 1 ( a By: Stacey R. Walters, Managing Member of RLSL Walters Properties,LLC ORANGE COUNTY: ATT T: Chair Clerk to the B rd Orange County Board of Commissioners [SEAL] STATE OF NORTH CAROLINA, COUNTY. I, Dzgyc� 0-0/n( , a Notary Public for said County and State, do hereby certify that Roland L. Walters and Stacey R .Walters personally appeared before me this day and acknowledged that each of them is the Managing Member of RLSL Walters Properties, LLC and has signed the foregoing Lease Agreement and Right of First Refusal for the purposes herein expressed. WITNESS my hand and official stamp or seal, this( day of , 2Q. "i 94-4A Notary Public My commission expires: �-o-s pPvl® S�/T ti NOTAAy ' 01300 q��COUr`� �• DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE STATE OF NORTH CAROLINA, i COUNTY. AL Notary Public for said County and State, do hereby certify that the Clerk to the Board of Commissioners for Orange County personally appeared before me this day and acknowledged that (s)he is the Clerk to the Board of Commissioners for Orange County,North Carolina and that by authority duly given and as the Act of said County the foregoing instrument was signed in its name by the Chair of said Board of Commissioners and attested by her as Clerk to said Board of Commissioners. WITNESS my hand and official sfammp or sel,.this day of a , 20 w �.0 ' s My commission expires: w ary a lic � —asW. art NOTARY PUBLIC Orange County North Ceroonei My commissbn " DocuSign Envelope ID: DAA01C95-F14F-43BA-B8B1-084908696BOE ORANGE COUNTY—DEPARTMENT USE ONLY Party/Vendor Name: RLSL Walters Properties, Inc. Party/Vendor Contact Person: Stacey R. Walters Contact Phone: Party/Vendor Address: 7119 High Rock Rd. City Efland State: NC Zip: 27423 Department: Solid Waste Amount: $1,312.50 per month for 20 yrs. ($315,000) Purpose: Lease of property for Waste and RecyclingCenter enter Budget Code(s): 50353020-630003 Vendor#64838 (N/A if new vendor) Vendor is a BOCC consultant? Yes ❑ No® Contract Type: (Check one) New ® Renewal ❑ Amendment ❑ Effective Date March 1,2021 Approved by Board Yes®Nor-1 Agenda Date: 2-16-21 This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to execution of the agreement: Ert DocuSigned by: Department Director's Signature 36984taAS Date: 3/10/2021 Agreements for emergency services or repair are not subject to the above affirmation. If services related to this agreement have already begun or been completed please briefly describe the nature of the emergency condition that was addressed: Information Technologies (Applicable only to hardware/software purchases or related services)This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer Date: Risk Management This agreement is approved for sufficiency §t4ndards,specifications,and requirements: Office of the Risk Management Officer Q�1Sa vvulib Date: 3/17/2021 Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: DocuSigned by: (''� 0 Office of the Chief Financial Officer Date:3/17/2021 Legal Services This agreement is approved as to le2S:.7 Office of the County Attorney Date: 3/18/2021 Clerk to the Board Received for record retention: All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov The following signature block is for hard copies only and is not required for Docusign contracts: Office of the Clerk to the Board Date: Revised 07/20