071514ssa Agenda PackageHarnett County Board of Commissioners
Special Session
Tuesday, July 15, 2014
9:00 am
9:00 am Call to order — Chairman Joe Miller
Pledge of Allegiance and Invocation — Commissioner Gordon Springle
9:10 am Discussion regarding land transfer request from Erwin Lions Club
9:20 am Update on proposed Dedication of Right of Way for Highland Middle School
9:30 pm Review of proposed Cross Access Easement and Road Maintenance Agreement
for Bain Street
9:40 pm County Manager's Report:
. Regular Meeting Agenda Review
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NNDEH ROAD
9
STATE OF NORTH CAROLINA
COUNTY OF HARNETT
CROSS ACCESS EASEMENT
AND ROAD MAINTENANCE
AGREEMENT
THIS CROSS ACCESS EASEMENT and ROAD MAINTENANCE
AGREEMENT is made as of this day of , 2014, by and between the
County of Harnett, a body politic organized according to the laws of the State of North
Carolina, Edgar R. Bain and wife, Faye M. Bain, and Trump Lillington, LLC, a North
Carolina Limited Liability Company,
WITNESSETH:
THAT WHEREAS, the parties to this CROSS ACCESS EASEMENT and ROAD
MAINTENANCE AGREEMENT (hereinafter, "Agreement ") are the owners of those
parcels of land located in the Town of Lillington, County of Harnett, and as shown on
that map attached hereto as Exhibit A; and
WHEREAS, Edgar R. Bain. who is married to and wife, M. Bain,, are the
owners of Lot 2 as identified on Exhibit A; and
A; and
WHEREAS, Trump Lillington, LLC is the owner of Lot 1 as identified on Exhibit
WHEREAS, The County of Harnett owns property which is contiguous with the
Northwest property lines of Lot 1 and Lot 2 and across which runs a street identified as
Bain Street on Exhibit A ("County Property"); and
WHEREAS, Lot 1, Lot 2, and the County Property rely on that entrance and
roadway identified as "60" Cross Access Easement - Bain Street_ on Exhibit A and th
R ead3A -a - D"�o�r -for access to U.S. Highway 401, and more specifically for access,
iwuu vvu� i
ingress, egress, regress, and as a drainage and utilities easement; and
WHEREAS, all of the parties hereto desire that the lots shown on said Exhibit A
be developed and maintained for commercial purposes as permitted by applicable zoning
for the property with access, and more specifically for access, ingress, egress, regress,
and as a drainage and utilities easement, across The Road kray P fepeftyBain Street to U.S.
Highway 401, a public road, all for the common and continued use by each of the parties,
their heirs, successors, assigns, mortgagees, tenants, sub - tenants, licensees, invitees and
employees.
WHEREAS, Bain Street is more specifically described in
that metes and bounds legal description attached hereto as Exhibit B.
NOW, THEREFORE, in consideration for the mutual benefits to each of the
parties as set out in the premises, the parties hereto do hereby agree as follows:
ARTICLE I
Cross Access Easement
1. Each of the parties to this Agreement do hereby grant to the other parties
hereto, their successors, assigns, mortgagees, tenants, sub - tenants, licensees,
invitees, and employees, a perpetual non - exclusive right, privilege and
easement for pedestrian and vehicular traffic for access, ingress, egress,
regress and a drainage and utilities easement, over ,
inel sive of Bain Street and the driveways, rights of way and traffic lanes
constructed or to be constructed as shown on Exhibit A and more particularly
described by that metes and bounds description in Exhibit B, to have and to
hold such right, privilege and easement subject to the following terms and
conditions hereof.
2. Each of the parties agrees that it will not erect any barrier or construction
which would prevent the free flow of pedestrian and vehicular traffic between
the other parcels shown on Exhibit A and B or between said parcels and the
public roads bordering the lands shown on Exhibits A and B.
3. It is understood and agreed that this Cross Access Easement is perpetual and
shall exist and be binding upon the parties hereto, their heirs, successors and
assigns.
2
1.
ARTICLE II
Maintenance Obligations
FffflttqyBain Street. Subject to the Provisions hereinafter set forth:
a) The County of Harnett will determine the necessity of repair, maintenance
and replacement of the The Readway Pr-e,ef4yBain Street as described in
Exhibit B.
b) Each Party shall perform its construction and maintenance obligations of
its own parcel hereunder in a manner so as not to impair, interfere with or
block the access to the other parcels or the business operations of the other
Parties.
c) The actual and documented reasonable costs of repair, maintenance and
replacement of the Roadway Pr-e )e y ain Street shall be shared between
the parties as follows:
a. 75% of the total cost of the repair, maintenance and replacement to
be paid by the County of Harnett;
b. 12.5% of the total cost of the repair, maintenance and replacement
to be paid by Trump Lillington, LLC;
c. 12.5% of the total cost of the repair, maintenance and replacement
to be paid by Edgar R. Bain and Faye M. Bain.
d) Each party shall pay the County of Harnett its share of the above described
expenses within 30 days after receiving from the County of Harnett a
statement therefor, together with supporting invoices setting forth the
actual cost paid for such maintenance and /or replacement expenses as
provided for herein.
e) Replacement, Maintenance and Repair of Bain
Street does not include snow removal.
f) In the event a Party fails to pay its portion of the Replacement,
Maintenance and Repair cost within 30 business days after receiving a
written request from the County of Harnett, the other parties will have all
rights and remedies available to it by law and also all of the rights and
remedies set forth in Article III.
g) Notwithstanding the foregoing to the contrary, damage to the driveways
on the Properties or to the pavement and landscaping caused by a Party or
its contractors or employees shall be the responsibility of such Party.
9
h) The obligations hereunder shall run with the land. If a Property is
subdivided and sold, any obligation or expense attributed to a subdivided
parcel shall be deemed an expense of such subdivided parcel and then
owner thereof. Upon conveyance by a Party of all or a portion of its
Property, such Party shall be released from any Replacement,
Maintenance and Repair or other obligations for the Ro adwa-y
Pfepef�yBain Street (or portion thereof) actually conveyed.
ARTICLE III
Defaults and Remedies
1. Defaults. If any Party (the "Defaulting Party ") should fail to observe any of the
terms, conditions, restrictions or provisions of, or should fail to perform any of its
covenants or obligations under this Agreement within a period of 30 days after the
other Party (the "Non- Defaulting Party ") has given to the Defaulting Party written
notice thereof, then the Defaulting Party shall be in default under this Agreement;
provided that if the obligation is of such a nature that the same cannot, with due
diligence, be reasonably performed within such 30 -day period, then such default
shall be deemed to have been cured if the Defaulting Party commences such
performance within such 30 -day period and thereafter undertakes and proceeds
with due diligence to complete the same and does complete the same within a
reasonable time. If a default has occurred and is not cured within the time period
specified in this Section 1, then the Non - Defaulting Party shall have all of the
rights and remedies afforded to it by law and also all of the rights and remedies
set forth in Section 2 hereof (whether or not they are expressly provided by statute
or recognized by judicial precedent), any one or more of which may be exercised
and enforced independently or concurrently after such default remains uncured,
without further notice to the Defaulting Party and without waiving any of the
Non - Defaulting Party's other rights and remedies, and all of which shall, to the
extent applicable, survive the termination of any right granted in this Agreement.
2. Remedies.
a) Cure. Following the expiration of the applicable cure period, the Non - Defaulting
Party may, at its election, cure any default of the Defaulting Party under this
Agreement; and if the Non - Defaulting Party should do so, then it shall be entitled
to be reimbursed for all reasonable costs and expenses incurred by it in
connection therewith, from either the Defaulting Party, its contractors, or its
insurance carriers.
b) Civil Actions. Following the expiration of the applicable cure period, the Non.
Defaulting Party may sue the Defaulting Party for the specific performance of any
obligation undertaken by the Defaulting Party in this Agreement, for injunctive or
other equitable relief, or for damages in any court of competent jurisdiction in
order to recover any such amount as may be due and payable to the Non -
Defaulting Party.
c) Obstruction Defaults. Notwithstanding anything to the contrary contained in this
Agreement, in the event vehicular access to a Property is completely obstructed
(each such event, and "Obstruction Default " "), the Non - Defaulting Party may
notify the Defaulting Party by any means reasonable under the circumstances,
including via facsimile or telephone, of the Obstruction Default and demand that
the Obstruction Default be remedied. If, after 24 hours after such notice has been
provided, the Defaulting Party has not remedied the Obstruction Default or
commenced to remedy the Obstruction Default and thereafter remedies such
Obstruction Default within 24 hours, the Non - Defaulting Party shall have the
right (but not the obligation) to remedy the Obstruction Default (including the
right to enter upon the Defaulting Party's Property) and shall be reimbursed by
the Defaulting Party for the reasonable costs for such remedy upon demand.
ARTICLE IV
Miscellaneous Provisions
1. Notices. Any notice or other communication required or permitted to be given to
a Party under this Agreement shall in writing and shall be given by ordinary U.S.
mail, or by registered or certified U.S. mail, return receipt and postage prepaid, or
delivered in person, by over -night courier, telefacsimile, interconnected
computers, or any other mean for transmitting a written communication. Notice
for each party is to be sent to the following addresses:
County of Harnett:
County Manager
County of Harnett
P.O. Box 759
Lillington, North Carolina 27546
Edgar R. Bain and Faye M. Bain:
Trump Lillington, LLC
2. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns (including successive, as well
as immediate, successors and assigns) of the parties hereto.
3. Governing Law: This contract shall be governed by and construed in accordance
with the laws of the State of North Carolina.
4. Duplicate Originals: This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be a duplicate original, but all of
which, taken together, shall constitute a single instrument.
5. Article and Section Captions: The Article and Section captions contained in this
Agreement are included only for convenience of reference and do not define,
limit, explain or modify this Agreement or its interpretation, construction or
5
meaning and are in no way to construed as a part of this Agreement. All exhibits
referred to in this Agreement are hereby incorporated herein and made a part of
this Agreement.
6. Severance Clause: in the event any provision of this Agreement is adjudged to be
unenforceable or found invalid, such provision shall be stricken and the remaining
provisions shall be valid and enforceable.
7. Integration of Understandings: This Agreement is intended as the complete
integration of all understandings between the parties. No prior or
contemporaneous additions, deletions, subsequent renewal, deletion, or other
amendment hereto shall have any force or affect unless embodied herein in
writing signed by both parties.
8. No Partnership Joint Venture or Principal-Agency Relationship. Nothing
contained in this Agreement nor any acts of the parties hereto shall be deemed or
construed by the parties or any third Person to create a principal and agent
relationship, partnership, joint venture, employer- employee relationship or of any
association between the parties to this Agreement.
9. No Dedication. Nothing in this Agreement shall be deemed to constitute a gift,
grant or dedication of any portion of the Property to the general public or for any
public purpose; provided that the parties shall have the right to extend the benefit
of any of the easements granted herein to any governmental unit, public body
and/or utility company for the purpose of the construction, installation, operation,
maintenance, repair, relation, modification, extension or alteration of utility and
drainage lines and related facilities.
10. Termination of Liability pon Transfer: If the owner of a parcel should transfer
its fee simple interest in and ownership of such parcel, then the liability of the
transferor for the breach of this Agreement occurring after the date of such
transfer, shall automatically be terminated and the transferee, by the acceptance of
the conveyance of such;fee simple interest, shall automatically be deemed to have
accepted, assumed and agreed to observe or perform such covenant or provision
after the date of such transfer.
IN WITNESS WHEREOF, the below -named parties have hereunto set their hands
the day and year first above written.
By:
Edgar R. Bain
By:
Faye M. Bain
STATE OF NORTH CAROLINA
COUNTY OF
L , a Notary Public for said County and State,
certify that Edgar R. Bain and Faye M. Bain personally appeared before me this day,
acknowledging to me that they signed the foregoing document for the purpose stated
therein.
C�
Witness my hand and Notarial stamp or seal this
Official Signature of Notary:
Notary's Printed Name:
My commission expires:
day of
7
2014
[ Seal ]
County of Harnett, North Carolina
By:
Miller, Chairman, Joe
County Board of Commissioners County of Harnett
Attest:
Printed Name:
Clerk to the County Board of Commissioners
STATE OF NORTH CAROLINA
COUNTY OF HARNETT
15 , a Notary Public for said County and State,
certify that personally appeared before me this
day, acknowledging to me that she/he is the Clerk to the County Board of Commissioners
for the County of Harnett, 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 Chairman of the
County Comm is sionersN4ax-ager of the County of Harnett -Ee�, North Carolina and
attested by her/him as Clerk to said County Board of Commissioners.
Witness my hand and Notarial stamp or seal this day of , 2014
Official Signature of Notary:
Notary's Printed Name:
My commission expires:
[ Seal
TRUMP LILLINGTON, LLC
By:
Name:
Title:
STATE OF NORTH CAROLINA
COUNTY OF
L , a Notary Public for said County and State, certify that
(Name of manager, title, name of LLC) personally
appeared before me this day and acknowledged the due execution of the foregoing instrument on behalf of
the Company.
Witness my hand and Notarial stamp or seal this day of , 2014
Official Signature of Notary:
Notary's Printed Name:
My commission
9
[ Seal ]
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COUNTY OF HARNETT
PLAT BK 2000, PG 2 10
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"2753 "W 60.05'
EXhIBIT A
US 401
W. CORNELIL15 HARNETT BLVD.
trM WIDTH VARIES)
556 °34'58 133.73' (TOTAL)
'E
L= 60.40'
P= 6570.00'
CHI). L— GO.40'
CHI). DIK =555° 43' 3 1 "E
A =0 °31 '3G"
LOT I
TRUMP LILLINGTON, LLC
D5 31 15, PG 79G
PLAT BK 2004, PG 908
PIN 0650 -77- 4493.000
34,783 5Q IT
0.84 AC
N49 000'02 "W 198.46'
LOT 2
EDGAR R, BAI N
DB I GG7, PG 379
PLAT BK 2004, PG 908
N5 1027'53"W 210.00'
105 I '50 "E 69.15' (TOTAL)
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CAPE FEAR PLAZA, LLC
DB 3025, PG 553
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49 000'02 "W 5.G3'
55G °04'59 "E 5.48'
_,-540 050'20 "W 7.79'
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Exhibit "B"
LEGAL DESCRIPTION
60 FOOT CROSS ACCESS EASEMENT
COUNTY OF HARNETT
TOWN OF LILLINGTON, NORTH CAROLINA
Beginning at a Point, said Point being located the following courses and distances from
the northwestern most corner of the Trump Lillington, LLC property, as shown on that certain
plat entitled "Boundary Survey for McLaughlin Properties, LLC ", as prepared by Herbert J.
Nobles, Jr., PLS, dated May 13, 2014, and revised July 7, 2014: South 40 degrees 25 minutes 45
seconds West for a distance of 10.10 feet to a point;
Thence, from said Point of Beginning, South 40 degrees 53 minutes 42 seconds West for
a distance of 159.47 feet to a point;
Thence, South 40 degrees 55 minutes 15 seconds West for a distance of 237.99 feet to a
point;
Thence, North 51 degrees 27 minutes 53 seconds West for a distance of 60.05 feet to a
point;
Thence, North 40 degrees 55 minutes 15 seconds East for a distance of 240.57 feet to a
point;
Thence, North 40 degrees 53 minutes 42 seconds East for a distance of 152.39 feet to a
point;
Thence, along and with the southern right of way of US Highway 401, along a curve to
the right having a radius of 6570.00 feet, a delta angle of 0 degrees 31 minutes 36 seconds, and
an arc length of 60.40 feet, being subtended by a chord of South 55 degrees 43 minutes 31
seconds East for a distance of 60.40 feet to the Point of Beginning.
End of Legal Description