HomeMy WebLinkAboutAgenda 10-19-2021; 8-d - Development Agreement between Orange County and Orange Rural Fire Department for a New Fire EMS Station 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: October 19, 2021
Action Agenda
Item No. 8-d
SUBJECT: Development Agreement between Orange County and Orange Rural Fire
Department for a New Fire/EMS Station
DEPARTMENT: Emergency Services, and
Asset Management Services
ATTACHMENT(S): INFORMATION CONTACT:
Development Agreement Kirby Saunders, 919.245.6123
Steven Arndt, 919.245.2658
Angel Barnes, 919.245.2628
PURPOSE: To:
1) Approve a Development Agreement between Orange Rural Fire Department (ORFD) and
Orange County; and
2) Authorize the County Manager to execute the Agreement upon final review by the County
Attorney.
BACKGROUND: Over the past five years, Orange Rural Fire Department (ORFD) and Orange
County Emergency Services (OCES) have worked together to perform studies within the County
to determine which locations currently need or will need additional services due to the growing
population and demand. The studies show there is a need for a Fire Station and Emergency
Medical Services (EMS) station within the central part of Orange County.
ORFD and OCES worked together to develop an agreement that would allow ORFD and OCES
to building a new Fire Station and EMS Station at 350 College Park Road, Hillsborough. This new
station will be approximately 13,000 square feet to house both the Fire station and EMS station.
The new station will support residents within central Orange County.
The Board approved funding in FY2017-18, FY2019-20 and FY2021-22 for a total appropriated
amount of $3,450,000 to fund the Orange County Emergency Services portion of this project.
FINANCIAL IMPACT: There is no financial impact as the Board has previously appropriated
$3,450,000 in overall budget funds within the Capital Investment Plan ("CIP"). This funding will
accommodate the design, construction and furnishing phases of this project.
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SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable to
this item:
• GOAL: CREATE A SAFE COMMUNITY
The reduction of risks from vehicle/traffic accidents, childhood and senior injuries, gang
activity, substance abuse, and domestic violence.
ENVIRONMENTAL IMPACT: The following Orange County Environmental Responsibility Goal
impact is applicable to this item:
• GOAL: RESULTANT IMPACT ON NATURAL RESOURCES AND AIR QUALITY
Assess and where possible mitigate adverse impacts created to the natural resources of
the site and adjoining area. Minimize production of greenhouse gases.
RECOMMENDATION(S): The Manager recommends that the Board
1) Approve a Development Agreement between Orange Rural Fire Department (ORFD) and
Orange County; and
2) Authorize the County Manager to execute the Agreement upon final review by the County
Attorney.
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STATE OF NORTH CAROLINA
COUNTY OF ORANGE
DEVELOPMENT AGREEMENT REGARDING WATERSTONE— ORANGE RURAL
FIRE DEPARTMENT/EMERGENCY SERVICES CO-LOCATION PROPERTY
BY AND BETWEEN
THE ORANGE RURAL FIRE DEPARTMENT, NORTH CAROLINA
AND
THE COUNTY OF ORANGE, NORTH CAROLINA
THIS DEVELOPMENT AGREEMENT (the "Agreement"), made and entered into this
day of , 2021, by and between the ORANGE RURAL FIRE
DEPARTMENT No.1 INC., a municipal corporation of the State of North Carolina, located at
206 South Churton Street, Hillsborough, North Carolina 27278 , hereafter referred to as the
"ORFD," and THE COUNTY OF ORANGE, a political subdivision of the State of North
Carolina, located at 300 West Tryon Street, Hillsborough, North Carolina, 27278, ("County"),
through the Orange County Emergency Services Department("OCES"). Collectively, ORFD and
the County may be referred to as "the "Parties."
WITNESSETH:
WHEREAS, the County and ORFD desire to undertake the development of a shared
facility in the Waterstone Development in Hillsborough,North Carolina to co-locate a fire station
and emergency medical services operated by ORFD and the County; and
WHEREAS, ORFD owns approximately 2+/- acre parcel of land in Hillsborough, North
Carolina, located at 350 College Park Drive and further identified by Orange County parcel
identification Number 9873-24-1850 ("Property"), and more particularly described in Exhibit A,
which ORFD acquired from the Town of Hillsborough ("Town") in May 2017; and
WHEREAS, ORFD has conducted a facilities needs studies and determined ORFD's
current and future needs for facilities to house ORFD operations; and
WHEREAS, ORFD and the County have each determined that they may each derive
benefits for the residents of Hillsborough and the County if they can cooperatively plan and
develop a joint use facility (the "Facility") to house Orange Rural Fire Department and Orange
County Emergency Medical Service Station, and any associated parking for the Facility
collectively,referred to as "Facility" or"Facilities"); and
WHEREAS, the County and ORFD desire to establish terms pursuant to which they will
cooperate with the planning, financing, and development of the Property for a joint use Facility;
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and
WHEREAS, the Property is appropriately zoned for the use proposed for the project,
except that,before the County and ORFD can construct and operate the Facility at the Site, certain
zoning text amendments, administrative modifications, and/or binding interpretations must be
made pursuant to the Town's Land Use Ordinance so that all local government permits for the
project can be issued; and
WHEREAS, ORFD is authorized to enter into this contract pursuant to, inter glia, the
North Carolina General Statutes ("N.C.G.S.") §69.25.6 and the County is authorized to enter into
this contract pursuant to, inter alia, North Carolina General Statutes §153A-11, et seq., and the
Parties have each determined that it is in the best interests of the residents to do so; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and for other good and valuable consideration,the receipt and sufficiency of which is hereby
acknowledged, ORFD and the County intending to be legally bound do hereby agree as follows:
ARTICLE I
Definitions
A. "Agreement" shall have the meaning set forth in the preamble.
"County" means Orange County,North Carolina.
"Common Area" means portions of the Facilities constructed on the Property(but
not the land itself) that are necessary for the Parties to function as occupants of the space.
Common areas include but are not limited to stairwells, emergency egress areas, building
lobbies, restroom facilities, and equipment rooms housing electric, mechanical and other
building systems.
"Condominium" means the designation of portions of the Property for separate
ownership and the remainder of which is designated for common ownership solely by the
owners of those portions, consistent with Chapter 47C on the North Carolina General
Statutes.
"Condominium documents" means the declaration of covenants and restrictions
governing the condominiums proposed for the Property, including the description and
delegation of rights and obligations of ORFD, the County and any other potential
condominium owner regarding access to and use of parking spaces, common areas and
other common elements described in such documents. These documents also include the
organizational and operating documents that will guide the condominium association
regarding the operation, maintenance, and other business associated with the Property.
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"Contracts" means the contract documents, including this Agreement, the design
contract,the construction contract,the Environmental Indemnification Agreement,and any
other contract or agreement executed by both Parties hereto directly related to the Project.
"Development" means the planning, design and construction by ORFD and the
County of the Facilities on the Property.
"Development Permit" means a building permit, zoning permit, subdivision
approval, special or conditional use permit, variance, or any other official action of Local
Government having the effect of permitting the development of the Property.
"Development Standards" means the standards for development set forth in the
Town's Land Use Ordinance.
"Facility" or"Facilities" shall have the meaning set forth in the recitals.
"Governing Body"means,with respect to ORFD,the ORFD Board of Directors, and
with respect to the County, the Orange County Board of County Commissioners.
"Gross floor area" as used in this Agreement means the area of space within the
building to be constructed on the Property occupied by each party to this Agreement, plus
the proportional share of"common areas" attributable to each party (i.e., "common areas"
shall be apportioned between the Parties in proportion to the amount of"gross floor area"
each occupies in the building). The proportion of"gross floor area" occupied by each party
shall be finally calculated upon completion of the construction plans for the building and
parking lot to be constructed on the Property, and a written schedule following in the
principle the Elements of Value, Exhibit B, signed by each party and attached to this
Agreement.
"Land Development Regulations" means the Town's Land Use Ordinance ("LUO")
those ordinances and/or regulations enacted by the Town for the regulation of any aspect of
development and includes zoning, subdivision, or any other land development ordinances.
"Laws" means all ordinances, resolutions, regulations, comprehensive plans, land
development regulations,policies,and rules adopted by the Town affecting the development
of the Property, and includes laws governing permitted uses of the property, density, design,
and improvements.
"Lender" shall have the meaning set forth in Section VI(C).
"Local Government" shall mean the Town of Hillsborough,North Carolina.
"N.C.G.S." means the North Carolina General Statues.
"NCDEQ" means the North Carolina Department of Environmental Quality.
"NCDOT" means the North Carolina Department of Transportation
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"Municipal Corporation"means Orange Rural Fire District, and as a fire protection
district is a municipal corporation organized for a special purpose within the meaning of
N.C. Gen. Stat. §69-25.4.
"Project" means the planning, design and construction of an approximately 15,525
gross square foot building, site improvements, and associated parking with anticipated
capacity for approximately (20) twenty parking spaces on the Property with adequate
capacity for the Project. It is anticipated that upon completion of the Project, the Parties
may convert the Property to a condominium form of ownership to be governed by covenants
adopted by mutual Agreement of the Parties.
"Public facilities" means the major capital improvements, including,but not limited
to, transportation, sanitary sewer, solid waste, drainage, potable water, educational, parks
and recreational, and health systems and facilities.
"Shared Areas" are areas exclusive to a condominium owner that may be reasonably
offered for use by other Parties according to a mutual agreement.
"ORFD" means the Orange Rural Fire Department.
"Upfit costs" means the cost of interior finishes of space in the building to be
constructed on the Property such as,but not necessarily limited to,floor finishes and carpets,
wall treatments, electric outlets and fixtures,plumbing fixtures, and furnishings.
ARTICLE II
Description of Development Agreement
A. Legal Description;Property Owners. A map and the legal description of the
Property are contained in Exhibit A.
B. Permitted Uses. The uses permitted on the Property, including population
densities and building types, intensities, placement on the Site and design, are
controlled by the applicable zoning designation to the Property under the Town's
Land Use Ordinance ("Luo").
C. Public Facilities. The following public facilities will service the development:
1. Off-Site Infrastructure: The Property is served by public water and sanitary
sewer(Town of Hillsborough). The Property is also served by public roads
under NCDOT jurisdiction and Town jurisdiction, and by storm water
services administered by the Town.
2. On-Site Infrastructure: ORFD and the County shall cooperate with respect
to the design of the Facilities, including the planning and development of
any onsite infrastructure necessary for the construction, use and operation
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of the Facilities at the Property in accordance with the terms of this
Agreement.
D. Development Standards. The Project shall be subject to the Town's policies and
procedures regarding standards of development, as set forth in the Town's Land
Use Ordinance.
ARTICLE III
Parties' Responsibilities
A. The Parties' agree to negotiate and enter into such other agreements as may be
necessary or appropriate to facilitate the financing and construction of the Project.
The Parties intend that upon substantial completion of construction, they shall
convert the Property ownership to a condominium form of ownership to be
governed by mutually agreed upon covenants.
B. The design of the Facilities shall be mutually agreed upon by the Parties. The
County and ORFD will bear the costs for the preparation of schematic design
drawings in accordance with Article IV.A of this Agreement. The County's portion
of costs for design of the Project shall not exceed fifty percent(50%) of total design
costs up to two hundred fifty thousand dollars ($250,000). ORFD will be
responsible for contracting for the designer and related professional services
providing preliminary information that inures to the design of the Project. ORFD
shall submit invoices to the County evidencing Project design costs. Upon
processing and approval of such invoices the County shall reimburse ORFD fifty
percent(50%) of the design costs up to the limit established in this paragraph.
1. Upon completion of the design the Parties shall determine, agree to, and
memorialize the sizing and elements of exclusive, shared, and common
area spaces and parking spaces. Such agreement shall be executed by the
Parties and the County shall not be obligated to further expenditures related
to the Project until the execution of such agreement.
2. Upon final determination of the sizing and elements of exclusive, shared,
and common area spaces and parking spaces this Agreement will be
amended to reflect the total Project cost. Upon approval of the amendment
by the Parties' governing boards the Project may proceed to construction.
3. Upon approval of the amendment the Parties shall, within a reasonable
time, commence development of the Condominium documents based on
the Parties' agreement as it relates to the sizing and elements of exclusive,
shared, and common area spaces and parking areas.
C. ORFD, as Owner of the Property, will be primarily responsible for procuring all
necessary development approvals for the Project to permit the Fire Department and
EMS Station and the required associated parking. The County will support ORFD's
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efforts to secure the necessary permits.
D. Provided the Town approves and issues all necessary development permits for the
Project, the Parties will coordinate to complete construction drawings for the
Project.
E. ORFD, in accordance with applicable laws pertaining to public construction
projects, will enter into contract(s) for development of the construction
documents for the Project.
F. Upon approval of the construction documents and issuance of the necessary permits
(the 'Building Permit(s)"), ORFD will at a time reasonably agreed between the
Parties begin construction of the Project.
G. The Parties will finance their respective shares of the Project costs according to
Exhibit B, Elements of Value. ORFD will arrange for construction financing of its
proportional share of the Project cost (based on Exhibit B), in such manner as
determined by the ORFD Board. The County shall finance its proportionate share
of the Project costs (based on Exhibit B) in such manner as may be determined by
the County.
H. ORFD will contract with all necessary design, engineering and construction firms
for any environmental remediation work required by NCDEQ. Subject to the terms
of the Environmental Indemnification Agreement the Parties shall share the cost of
such remediation equally.
I. ORFD will contract with professionals for the construction of the Project, using a
legally permitted construction delivery method. Upon completion, the Facilities,
including the Building and parking, shall be subject to a new condominium
declaration with terms mutually agreed upon by ORFD and the County, pursuant
to which ORFD will grant and the County will acquire at no additional cost to the
County a fee simple condominium interest in the assigned parking areas and EMS
Station and an undivided interest in the Common Areas. ORFD shall convey the
fee simple condominium interest to the County within thirty(30)days of substantial
completion of the Project. It is acknowledged by ORFD and the County that
County's contributions to the Project constitute sufficient consideration for the
conveyance of the condominium interest.
J. ORFD will enter into a design contract for the design and a construction contract
for the work.
K. As contemplated by this agreement, upon completion of construction the building
and parking areas shall be converted to condominium ownership, with the ORFD
and the County each owning condominium interests in building space and
associated parking spaces. As part of the condominium arrangement, the Parties
will also have an undivided interest in the Common Areas designated on the final
plans, and which Common Areas will be subject to the rules, rights and
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responsibilities established in the condominium documents. The Parties agree that
the conversion of spaces in the parking lot to condominium ownership will include
in the condominium documents language establishing appropriate easements for
ingress, egress and access to and between the public right of way and all parking
spaces and establishing rules and regulations concerning use, management and
maintenance of parking spaces. The Parties agree that an adequate number of on-
site parking spaces to be owned and paid for by each Party shall be available for the
use of their staff and visitors during operating hours. This number of spaces will be
determined during the permitting and design of the project. Each party shall be
responsible for managing their condominium units unless the Parties mutually agree
otherwise in writing.
ARTICLE IV
Allocation of Project Costs
The Parties shall share in the costs of the Project as follows:
A. Pre-development costs, site improvement costs, building design and construction
costs, and contingency costs shall be shared by the Parties in accordance with the
Elements of Value, which is attached as Exhibit B to this Agreement. The Parties
recognize and agree that some of these Values and the corresponding level of
proportionality may not be finally established until after the majority of the design
work is completed(and after this Agreement is executed). The Parties acknowledge
that Exhibit B represents their general understanding of the cost sharing; however,
the Parties agree to negotiate in good faith a fair and equitable share of all costs
associated with this project as soon as possible after the Schematic Design work is
completed. ORFD and the County shall share the cost of constructing the building
on the Property in proportion to the amount of wholly controlled area they occupy
in the building. It is anticipated these costs shall be allocated between the Parties as
follows: Design fees, each party responsible for 50%; Site preparation, each party
responsible for 50%; Construction, ORFD responsible for 58% and the County
responsible for 42%.
B. Site and Building Structure Construction Costs Site,building shell,core facilities
(main utility services, delivery areas) and common area upfit costs are shared in the
same manner as Pre-Development costs. Dedicated area upfit costs are the sole
responsibility of the respective condominium owners. Traditional core facilities that
provide service to individual or a sub-set of condominium owners will bear that
cost.
C. The parties will each be responsible for their own legal expenses incurred in relation
to the Project.
D. ORFD shall serve as fiscal agent for the property. Upon receipt of invoices, ORFD
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will notify County of pro rata share owed. County will remit payment to ORFD
within 14 days.
ARTICLE V
Term And Termination
This Agreement shall be effective upon execution and shall continue until completion of
the Project unless earlier terminated as provided herein(the "Initial Term").
This Agreement shall terminate: (i) at any time, by mutual Agreement of the Parties; or
(ii) by ORFD, upon the material breach by County of any provision contained herein which
material breach remains uncured by County after ORFD provides thirty(30)days advance written
notice of said material breach to County, or(iii) by County,upon the material breach by ORFD
of any provision contained herein which material breach remains uncured by ORFD after County
provides thirty (30) days advance written notice of said material breach to ORFD.
ARTICLE VI
Conditions Precedent And Contingencies
The Parties understand and agree that there are a number of conditions precedent and
contingencies that will impact the ability to enter into the Contracts for the Project. At a
minimum,the Parties understand and agree that the following must be resolved to the County's
and ORFD's satisfaction:
A. ORFD obtaining all Permits, including zoning, conditional/special use permits,
variances, subdivision plats, approvals, permits, easements and licenses for the
Project and the Town grants all necessary Permits which allow for the County's
proposed use of the Property.
B. The County and ORFD secure all necessary approvals from their respective
governing Boards or Managers as delegated by their respective Boards to proceed
with the Project at mutually agreed, predefined points during the project (for
example: sizing and elements of exclusive, shared, and common area spaces,
schematic design, construction method, etc.)
C. ORFD and the County are able to procure suitable financing for their respective
components of the Project. The parties further contemplate that upon completion of
construction, the parties shall divide the Facilities, as partners thereof, into
condominium units to be owned by the County and ORFD, respectively, for
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purposes of facilitate permanent financing of the Facilities. The parties
acknowledge that these contemplated financing agreements and transactions may
be altered by mutual Agreement of the Parties and are or may be subject to approval
of the North Carolina Treasurer, Local Government Commission.
D. The mutual negotiation and execution of an Environmental Indemnification
Agreement whereby ORFD will indemnify the County for any and all liability,loss,
damage, cost and expense (including reasonable attorneys' fees and expenses)
resulting from any "Hazardous Substance" (as defined below) existing on or under
the Property or originating on the Property and migrating off-site in violation of
applicable Environmental Laws, but only to the extent that the Hazardous
Substance existed at the Property prior to the date of this Agreement. ORFD shall
not be liable with regard to any Hazardous Substances disposed of, placed, or
otherwise existing on or under the Property because of the actions of the County.
The County will likewise, and to the extent permitted by law, indemnify ORFD for
any and all liability,loss,damage,cost and expense(including reasonable attorneys'
fees and expenses) resulting from any Hazardous Substances existing on or under
the Property or originating on the Property and migrating off-site in violation of
applicable Environmental Laws that are introduced or placed on the Property, or
caused to migrate off the property, because of the actions of the County. Save and
except any liability resulting from remediation required by NCDEQ which shall
solely rest with ORFD,neither Party shall be liable to the other for liabilities,losses,
damages, costs or expenses resulting from the actions of third Parties after the date
on which the County acquires a legal interest in the Property.
E. "Hazardous Substances" shall mean: (a) those substances included within the
definitions of any one or more of the terms "hazardous materials," "hazardous
wastes," "hazardous substances," "industrial wastes," and "toxic pollutants," as
such terms are defined under the Environmental Laws, or any of them; (b)
petroleum and petroleum products, including,without limitation, crude oil and any
fractions thereof; (c) natural gas, synthetic gas and any mixtures thereof; (d)
asbestos and or any material which contains any hydrated mineral silicate,
including, without limitation, chrysotile, amosite, crocidolite, tremolite,
anthophyllite and/or actinolite, whether friable or non-friable; (e)polychlorinated
biphenyl ("PCBs") or PCB-containing materials or fluids; (f) radon; (g) any other
hazardous or radioactive substance, material, pollutant, contaminant or waste; and
(h) any other substance with respect to which any Environmental Law or
governmental authority requires environmental investigation, monitoring or
remediation.As used herein,the term"Environmental Laws" shall mean all federal,
state and local laws, statutes,ordinances and regulations,now or hereafter in effect,
in each case as amended or supplemented from time to time, including, without
limitation, all applicable judicial or administrative orders, applicable consent
decrees and binding judgments relating to the regulation and protection of human
health, safety,the environment and natural resources(including,without limitation,
ambient air, surface, water, groundwater, wetlands, land surface or subsurface
strata, wildlife, aquatic species and vegetation), including, without limitation, the
Comprehensive Environmental Response,Compensation and Liability Act of 1980,
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as amended(42 U.S.C. § 9601 et. seq.),the Hazardous Material Transportation Act,
as amended (49 U.S.C. §§ 5101 et. seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended(7 U.S.C. § 136 et. seq.),the Resource Conservation
and Recovery Act, as amended (42 U.S.C. § 6901 et seq.), the Toxic Substances
Control Act, as amended(15 U.S.C. § 2601 et seq.),the Clean Air Act, as amended
(42 U.S.C. § 7401 et. seq.), the Federal Water Pollution Control Act, as amended
(33 U.S.C. § 1251 et. seq), the Safe Drinking Water Act, as amended (42 U.S.C.
§ 300f et. seq.), any state or local counterpart or equivalent of any of the foregoing,
and any federal, state or local transfer of ownership notification or approval
statutes. "Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing of any
Hazardous Substances.
F. The negotiation and completion of agreements and documents guiding the selection
of designers and contractors, the timelines for the completion of various aspects
of the design work,the methods and scheduling input,and other specific design and
construction coordination necessary to ensure the successful completion of the
Project.
G. The negotiation and execution of this Agreement (wherein ORFD and the
County's property interests in the Project shall convert to condominium interests
post-construction)under which the Parties under the Agreement shall have the right
to construct the improvements on the Property subject to the Parties' obligation to
subject the Property and all improvements constructed thereon to a condominium.
H. Confirmation that adequate utilities services are available within a reasonable
distance from the Property for connection and suitable for the proposed uses to be
included within the Building.
I. ORFD complying with all necessary requirements for contracting with North
Carolina local governments, including, but not limited to, compliance with all
requirements for the Project.
J. All governmental and other third-party consents and approvals shall be obtained;
there shall be no significant pending or threatened litigation materially adversely
affecting the Property.
K. The Parties understand and agree that the provision of sufficient way-finding and
other signage is necessary for patrons to quickly and conveniently locate the
Facility. The Parties understand and agree that way-finding signage should be
contemplated in the design of the Project and signage for the Project is subject to
regulation by the Town.
L. The Parties under this Agreement (prior to completion of construction) and as
condominium unit owners (following the completion of construction)will agree to
contribute pro-rata to the common area maintenance and insurance provided by
ORFD or by the condominium owners association formed by the Parties, for the
Project including a reasonable pro-rata contribution for maintenance of the
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sidewalks and other shared amenities of the Property. Because the Parties are
exempt from paying ad valorem taxes, the typical procedure for apportioning each
tenants a share of those taxes against common areas is not applicable.
M. ORFD secures environmental regulatory approval from NC DEQ prior to the
commencement of construction or provides reasonable security to cover ORFD's
environmental responsibilities until regulatory approval is obtained.
N. Consistent with the scope of each Parry's responsibility hereunder, all necessary
and appropriate construction and crane easements will be secured by ORFD and
County from all adjacent landowners.
ARTICLE VII
Representations and Warranties
ORFD and the County each represent to the other to the best of their respective
knowledge:
A. ORFD and the County have all requisite power and authority to execute this
Agreement, and any other instruments required to be delivered by ORFD or the
County hereunder.
B. ORFD's and the County's entry into this Agreement will not violate any private
restriction or Agreement or to the best of ORFD's or the County's knowledge
without investigation or inquiry any applicable statute, ordinance, governmental
restriction or regulation.
C. During the Term, ORFD will not execute or create any lease, contract, option,
easement, covenant, condition,restriction, lien or encumbrance with respect to the
Property or any portion thereof without the written consent of County unless the
same is terminable upon no more than sixty (60) days written notice or otherwise
may be cleared on or before any Closing that may be contemplated in any Contract
that may be entered into between ORFD and the County.
D. There is no pending or threatened action, litigation,bankruptcy, condemnation, or
other proceeding of any kind pending against ORFD or the County which
materially adversely affects the Property.
E. No broker, finder or other intermediary is involved in the transaction contemplated
by this Agreement, and that no brokerage fee or commission is due and payable by
ORFD or the County upon any conveyance of the Property.
F. ORFD has not received written notice of any violations of any laws, ordinances
or similar rules and regulations relating and/or applicable to the ownership,use and
operation of the Property as it is now operated, and/or other licenses or permits,
which remainuncured.
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G. No assessments or special assessments for public improvements or otherwise have
been levied or are not affecting the Property.
H. To the best of ORFD's present knowledge, the Property is not within an area
determined to be flood-prone under the Federal Flood Protection Act of 1973.
ARTICLE VIII
Remedies and Dispute Resolution
A. Concerning Remedies. The remedies provided for in this Agreement are exclusive
and cumulative. The exercise of a particular remedy does not preclude the exercise
of any or all other available remedies herein except as provided herein.No delay in
the exercise of a remedy shall constitute a waiver of that remedy. Nothing in this
Agreement is intended to relieve a party from its common law duty to mitigate
damages.
B. Disputes.The Parties shall attempt in good faith to resolve any dispute,controversy
or claim arising out of this Agreement between them by negotiations by those
persons of ORFD and the County who have authority to act and who will promptly
meet for negotiations to attempt to settle the dispute.
ARTICLE IX
Miscellaneous
A. Assignment. The rights under this Agreement may be transferred and assigned
only upon the written consent of the non-assigning Party.
B. Fees and Expenses. Except as may be specifically provided in this Agreement,
each Party will be responsible for his or its own legal fees and expenses incurred
in connection with the transactions contemplated by this Agreement.
C. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina. Any dispute regarding
this Agreement shall be filed in a court of competent jurisdiction located in
Orange County,NC.
D. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall be
deemed to be one and the same document. A signed copy of this Agreement
delivered by facsimile, email or other means of electronic transmission shall be
deemed to have the same legal effect as delivery of an original signed copy.
E. Amendment. This Agreement shall not be amended except by a written
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instrument executed by both the County andORFD.
F. No Third Party Beneficiaries. Nothing contained in this Agreement shall be
deemed to create a contractual relationship with, or a cause of action in favor of,
any third party against ORFD or the County.
G. Entire Agreement, Amendment; Construction. This Agreement, together with the
Exhibits attached hereto and all other agreements referred to herein or relating to
the subject matter hereof, contains the entire Agreement between the Parties as to
the subject matter referenced herein, and supersedes all prior agreements,
understandings or undertakings (whether oral, written, electronic or otherwise)
between the Parties with respect to the subject matter hereof. No amendment may
be made to this Agreement except with the prior written consent of all Parties
hereto. The section titles and headings herein are for convenience of reference only
and do not define, modify or limit any of the terms and provisions hereof. Article,
Section and Exhibit references herein are to Articles, Sections and Exhibits of this
Agreement unless otherwise noted. The use of words "include" or "including" in
this Agreement shall be by way of example rather than by limitation. The use of the
words "or," "either" or "any" shall not be exclusive.
H. Representations and Warranties of the Parties. Each of the Parties, and each person
executing this Agreement on behalf thereof, represent and warrant, as applicable,
that (1) such party or person has the full power and authority to enter into this
Agreement and the agreements or instruments referred to herein, to execute them
on behalf of the parry indicated on the signature page thereof, and to perform the
obligations hereunder and thereunder, (2) such party is acting on its own behalf and
on behalf of its members, successors and assigns, (3) this Agreement and the other
agreements referenced herein are the valid and binding obligations of such parry,
enforceable against it in accordance with their terms, (4) entering into this
Agreement and the other agreements referenced herein does not conflict with any
other agreements entered into by either party, and (5) the execution, delivery and
performance of this Agreement has been duly and validly authorized by all
necessary corporate or governmental action on its part.
I. Exhibit List. The following exhibits are hereby incorporated by reference:
EXHIBIT A: Map Denoting Site, Legal Description of Site,
Legal and Equitable Owners
EXHIBIT B: Element of Values
[SIGNATURE PAGE TO FOLLOW/
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IN WITNESS WHEREOF,the Parties have executed this Agreement the day and year
first above written.
Orange Rural Fire Department
(Seao BY:
Jeff Cabe, Fire Chief
ATTEST:
COUNTY OF ORANGE
(County Seao
BY:
Bonnie Hammersley, County Manager
ATTEST:
County Clerk
This instrument has been pre-audited in the manner proscribed by the Local Government Finance
Act.
Chief Finance Officer/Treasurer
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County,North Carolina
I, a Notary Public of the County and State aforesaid, certify that
personally came before me this day and acknowledged that he is the Orange Rural Fire Department,
Fire Chief, and that the seal affixed to the foregoing instrument in writing is the corporate seal of
said ORFD, and that said writing was signed and sealed by him in behalf of said corporation by
its authority duly given and the said person acknowledged this writing to be the act a deed of said
corporation.
WITNESS my hand and official stamp (or seal),this the day of , 2021.
(S E A L) Notary Public
My Commission Expires:
County,North Carolina
I, a Notary Public of the County and State aforesaid, certify that
personally came before me this day and acknowledged that she is the Manager of the County of
Orange, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said
County, and that said writing was signed and sealed by her in behalf of said corporation by its
authority duly given and the said person acknowledged this writing to be the act a deed of said
corporation.
WITNESS my hand and official stamp (or seal),this the day of , 2021.
Notary Public
(S E A L) My Commission Expires:
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EXHIBIT A (to the Development Agreement)
MAP DENOTING SITE,
LEGAL DESCRIPTION OF SITE AND LEGAL OWNER
[See attached PDF document]
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EXHIBIT B (to the Development Agreement)
ELEMENT OF VALUES
[See attached PDF document]
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