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HomeMy WebLinkAbout071514ssa 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: . 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P 7,7 v 55 6N 2 \ \ rA p V 2 7 a \ °zoo °miN °1� m ,'- j -ziAmm y zi D FRI V � a mzaz- �r 0 z c��mo L 4 g H ° 5n5mG 5 a� °A p m t l A m ion m0 9— gA a $/ 3 * m Cl) 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 ] pP �7• N40 025'45 "E 10. C I ml W Lu N (V / Ln U-1 w N N � Z � m m of0 Q � o COUNTY OF HARNETT PLAT BK 2000, PG 2 10 I- z W i W W Ln U o QU N I 67 W V J T) (� m N w ° U - z I _ in O I z I I "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) e Psx tea) —:� ztit" 0 m m m O O CAPE FEAR PLAZA, LLC DB 3025, PG 553 m m N N v T m N m 49 000'02 "W 5.G3' 55G °04'59 "E 5.48' _,-540 050'20 "W 7.79' I rL 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