AGENDA Regular Business Meeting of the Southern Pines Town

Transcription

AGENDA
Regular Business Meeting of the Southern Pines Town Council
August 13, 2013, 7:00 PM, Douglass Community Center, 1185 W. Pennsylvania Avenue
Call To Order
Pledge of Allegiance
1.
Manager’s Comments
2.
Consent Agenda
All items listed below are considered routine and will be enacted by one motion and without discussion.
A.
Worksession Minutes of June 24, 2013, Agenda Meeting Minutes of July 3, 2013, Regular Business
Meeting Minutes of July 9, 2013 and Joint Workshop Minutes of June 27, 2013 as written.
B.
Annexation AX-01-13 Morganton Park
-
C.
Water Tower Lease Agreements
-
D.
3.
AT&T Tower Lease
Verizon Tower Lease
Amendment to Code of Ordinances – Chapter 95.005 Open Burning
Architectural Reviews
A.
4.
Resolution Directing the Clerk
Resolution Calling a Public Hearing
AR-07-13 Arboretum Community Center, 315 Arboretum Drive, Alan Stagaard, Petitioner
On behalf of Global Properties and Development LLC, petitioner Alan Stagaard of Stagaard & Chao
Architects PLLC., has submitted an application requesting Architectural Review approval for the new
construction of the Arboretum Community Center at 315 Arboretum Drive. The parcel is identified as PIN
857200567020 (LRK 20071137). Per the Moore County GIS, the property owner is Global Properties and
Development LLC and the parcel is zoned RS-2 (Residential Single-Family).
Public Comments
MINUTES
Worksession Meeting of the Southern Pines Town Council
June 24, 2013, 3:00pm, Community Room, Southern Pines Police Department
450 W. Pennsylvania Avenue
Present:
Mayor David McNeill, Mayor Pro Tem Mike Fields and Councilmember Fred Walden
Absent:
Councilmember Jim Simeon and Councilmember Chris Smithson
Call to Order
1.
Coalition for Human Care Request
Barrett Walker, Executive Director for the Sandhills/Moore Coalition for Human Care was present for discussion with
Council.
Ms. Walker discussed the desire of the Coalition to replace the existing shingles on the second building and stated
that the project would cost approximately $28,000.
Town Manager Parsons commented that the Town had awarded a $10,000 grant, $5,000 of which was to be repaid
to the Town, for the repairs made to the Sullivan building just over two years prior. He commented that a grant in the
same amount, with the same amount to be repaid, could be provided to the Coalition contingent upon Council’s
wishes.
Mayor McNeill and Mayor Pro Tem Fields commented that they were amenable to providing a grant in that amount to
the Coalition.
2.
Sidewalk Master Plan Update
Town Manager Parsons presented the item and discussed the budget, which is reviewed annually.
Discussion ensued amongst Council regarding the expansion of the locations to which the sidewalks would be added
and the impact that those theoretical expansions would have to the budget, pertaining to increases and decreases.
Town Manager Parsons stated that the present budget would remain at $150,000 for Fiscal Year 2013-2014.
3.
Decorative Street Signs Project
Town Manager Parsons gave an overview of the item.
Discussion ensued between Council and Assistant Town Manager David White regarding the style of posts and
blades to be used throughout the Town.
It was decided that the four-inch post currently being used downtown would be used in the new areas.
4.
Closed Session to Discuss a Personnel Matter Per NC General Statute 143-318.11 (a) (6)
Motion to retire to closed session was made by Mayor McNeill, seconded by Mayor Pro Tem Fields and carried
unanimously.
Council retired to closed session at 3:40 pm.
A motion to return to open session was made by Mayor Pro Tem Fields, seconded by Councilmember Simeon and
carried unanimously.
As so incorporated to these minutes of June 24, 2013 are exact copies as so recorded in the ordinance and
resolution books of the Town of Southern Pines as if fully set out in the minutes.
There being no further business the meeting adjourned at 4:10 p.m.
____________________________
Rachel Penton
Clerical Assistant III
MINUTES
Agenda Meeting of the Southern Pines Town Council
July 3, 2013, 7:00 PM, Community Room, Southern Pines Police Department
450 West Pennsylvania Avenue
Present:
Mayor David McNeill, Mayor Pro Tem Mike Fields, Councilman Jim Simeon, Councilman Fred
Walden and Councilman Chris Smithson.
Absent:
None
Call To Order
Sprucing Up Southern Pines Awards – Southern Pines Appearance Commission
Town Manager Parsons presented the item.
1.
Consent Agenda
A.
Agenda Meeting Minutes of June 5, 2013 and Regular Business Meeting Minutes of June 11, 2013 as
written.
The clerical assistant noted the corrections to the minutes.
B.
Budget Amendments
-
Sandhills/Moore Coalition for Human Care
$10,000
Town Manager Parsons provided an overview of the item, explaining that the amendment to the budget is for the
purpose of updating the existing structure.
C.
Approval of Lease – The Sandhills/Moore Coalition for Human Care
Town Manager Parsons provided an overview of the item and he noted that this is an update to the existing lease.
2.
Town Manager Parsons requested an addition to the agenda for the purpose of acknowledging the David R. White
Greenway to be presented at the Regular Business Meeting on July 9, 2013.
As so incorporated to these minutes of July 3, 2013 are exact copies as so recorded in the ordinance and resolution
books of the Town of Southern Pines as fully set out in the minutes.
____________________________
Rachel Penton
MINUTES
Regular Business Meeting of the Southern Pines Town Council
July 9, 2013, 7:00 PM, Douglass Community Center, 1185 W. Pennsylvania Avenue
Present:
Mayor David McNeill, Mayor Pro Tem Mike Fields, Councilmember Fred Walden, Councilmember
Chris Smithson, Councilmember Jim Simeon
Absent:
None
Call To Order
Pledge of Allegiance
Sprucing Up Southern Pines Awards – Southern Pines Appearance Commission
Building & Grounds Superintendent Pete Morris and Jeannie Carpentier were present. Mr. Morris
commented all 6 award recipients well deserved.
Ms. Carpentier gave an overview of the criteria for the Sprucing Up Southern Pines awards and
announced the 2013 winners consisting of the following properties:
130 James Creek Road
155 E. Indiana Avenue
260 S. Ashe Street
110 Sandhurst Place
320 Sheldon Road
Ms. Carpentier continued by commenting the award winners did a fabulous job and that the Appearance
Comission would like to hold two award presentations per year, with the next awards presentations to
focus on commercial properties.
Mayor McNeill thanked the Appearance Commission for their efforts toward the Town’s aesthetics and
congratulated the award winners for their significant additions to the Town.
1.
Town Manager Parsons gave an overview of the items on the Consent Agenda.
2.
Consent Agenda
A.
Agenda Meeting Minutes of June 5, 2013 and Regular Business Meeting Minutes of June 11, 2013 as
written.
B.
Budget Amendments
-
Sandhills/Moore Coalition for Human Care
$10,000
C.
Approval of Lease – The Sandhills/Moore Coalition for Human Care
D.
Resolution Honoring David R. White
Upon motion by Councilmember Walden, seconded by Councilmember Simeon and carried unanimously, the
Consent Agenda was adopted.
3.
Public Comments
There were no public comments.
As so incorporated to these minutes of July 9, 2013 are exact copies as so recorded in the ordinance and resolution
books of the Town of Southern Pines, as fully set out in the minutes.
There being no further business the meeting adjourned at 7:09p.m.
____________________________
Phillip Britt
Town Clerk
MINUTES
Joint Workshop of the Southern Pines Town Council and Planning Board
June 27, 2013, 6:00pm, Community Room, Southern Pines Police Department
Michael Lauer, Planning Works presented the agenda for the meeting, which included the status report, key changes
in the code (Unified Development Ordinance) and the next steps to be taken.
1.
Status Report
Mr. Lauer noted that the comments from the last Unified Development Ordinance Steering Committee would be
included.
He commented that the focus of the meeting, as it pertains to the UDO, would be on reorganization, clarification of
existing practices, the simplification of procedures and submission requirements, clarifying design standards and the
increasing of administrative flexibility to address minor deviations.
2.
Key Changes in Code
Mr. Lauer commented that Chapter One designates that Board of Adjustment responsibilities would be assumed by
the Planning Board.
Mayor McNeill stated that the decision had not been affirmed yet and was open for discussion.
Mr. Lauer provided a summary of the changes to Chapter Two, which included changes to regulations regarding
notices.
Discussion ensued amongst Council and the members of the Planning Board and UDO Steering Committee
pertaining to the requirements of said notices in relation to parcel size versus number of inhabitants.
Mr. Lauer continued with his summary of the changes to the Code through Chapter Nine.
3.
Next Steps
Mr. Lauer stated that he would consolidate all questions and comments from the meeting and make the
necessary/requested edits and noted that the UDO Steering Committee would hold an informational workshop on
August 8, 2013, at 5:00 p.m., prior to the Planning Board hearing to be held on that same date at 7:00 p.m.
As so incorporated to these minutes of June 27, 2013 are exact copies as so recorded in the ordinance and
resolution books of the Town of Southern Pines as it fully set out in the minutes.
____________________________
Rachel Penton
PETITION FOR VOLUNTARY ANNEXATION OF REAL
PROPERTY CONTIGUOUS TO THE
TOWN OF SOUTHERN PINES, NORTH CAROLINA
'3\jj
'().\D_
'
201~
TO THE TOWN COUNCIL OF THE TOWN OF SOUTHERN PINES, NORTH
CAROLINA:
1.
We the undersigned owners of real property respectfully request
that the area described in Paragraph 2 below be annexed to the
Town of Southern Pines, North Carolina, pursuant to G. S. 160A·
31.
2.
The area requested to be annexed is contiguous to the Town of
Southern Pines, and the boundary of such territory is described
by metes and bounds as follows:
A Ium metes and bounds description of boundaries of annexation, or a legal metes and bounds
description of boundaries must be included.
Name & Signature of Owner
Address of Owner
WAH,. &V!itJJJ 7 ~
(p3 9 \x.rn, oi• ye-\)) o cc.. 'f~~· \\c
Nc..W3~
County of Moore
Geographic Information Systems
Petition for
NEW ROAD NAME
WITHIN A SUBDIVISION
A PETITION TO NAME A ROAD IN MOORE COUNTY, NC
WHEREAS, the General Statutes of the State ofNorth Carolina, Article 12, Section
153A-240, authorize the County to name or rename any public or private roads within the
County and not within a city, and to assign or reassign numbers for use in such roads; and
WHEREAS, the County may not name or rename a road or assign numbers until it
has held a Public Hearing on the matter.
NOW, THEREFORE, we, the undersigned, present this petition and request that a
Public Hearing be called by the Moore County Board of Commissioners to consider
changing the name of a road described as follows:
Subdivision Name: The Legends at Morganton Park
Plat Recorded: Plat Cabinet
, Slide
Name(s) of petitioner:
Name of the person presenting the petition:
Address of petitioner:
City/State/Zip:
OR attach a preliminary plat
WA7Jt141 G. CAVIA/ff?
fJ 3'1 E[E"Ct/Tif[ 'RLAtt J/1/lt f#d
FA(rTTFf'ltLF 1ft ~/}If
Contact Number: (Work)
(t;/d) '/J/- #J d}
Signature of petitioner:
~
/
(Cell)_ _ _ _ _ _ __
---
Petitioner(s) having consulted the Moore County GIS Department and found that the name
proposed for the road does not duplicate or sound similar to the name of any other road in
Moore County, and do hereby propose that the road(s) within the subdivision listed above
to be named:
• BRUCEWOOD RD
• LEGENDS DR
• LEGENDSPL
• CARLISLE ST EXT
Return Petition to: Moore County GIS Department, Attn. Address Coordinator
302 Monroe Street, P.O. Box 905, Carthage, NC 28327
(910) 947-1078 - Fax (910) 947-2313 - www.moorecountync.gov
Maaf!ie Lockwood
From:
Sent:
To:
Cc:
Subject:
Wall, Rachel <[email protected]>
Wednesday, June 19, 2013 2:17 PM
Patrick Raynor
Maggie Lockwood
RE: addresses for The Legends at Morganton Park
Thank you. We are schedule to have them approved on Aug.6, 2013. I will notify you upon the approval being
complete.
Rachel Wall
GIS Programmer/ Analyst I E911 Address Coordinator
Moore County GIS Department
P.O. Box 905 I 302 Monroe Street I Carthage, NC 28327
Telephone: (910) 947-1078 I Fax: (910) 947-2313
From: Patrick Raynor [mailto:[email protected]]
Sent: Wednesday, June 19, 2013 1:56 PM
To:
'Maggie Lockwood'
Cc: Wall, Rachel
Subject: RE: addresses for The Legends at Morganton Park
Rachel,
Please find attached the signed Road Name Petition for The Legends at Morganton Park. Thank you for your assistance
with this matter.
Patrick
J. Patrick Raynor, CPA
ChiefFinancial Officer
639 Executive Place Suite 400
Fayetteville, NC 28305
office 910.481.0503
fax 910.481.0585
...•caviness
[~
&c:ates
,. • CommunitiES
Ywr Plac;{1 to Call~·
-------- Original Message -------Subject: RE: addresses for The Legends at Morganton Park
From: "Wall, Rachel" <[email protected]>
To: Maggie Lockwood <[email protected]>
CC:
1
Please find the petition attached.
Rachel Wall
(910) 947-1078
From: Maggie Lockwood [mailto:[email protected]]
Sent: Tuesday, June 18, 2013 4:37 PM
To: Wall, Rachel
Subject: Re: addresses for The Legends at Morganton Park
We are the owner . The LLC is morganton park LLC . I can have it signed tomorrow
Sent.from my Verizon Wireless 4G LTE DRO/D
"Wall, Rachel" <[email protected]> wrote:
I had a meeting with them today. The roads will be approved by the county until you have the property annexed into
the Town of Southern Pines. In order for me to gain approval from the county there is a petition that requires the
owners signature. Do you have a fast way to contact the owner because in order to include on an upcoming change I
need the petition signed and returned by this Friday?
I will email the petition tomorrow.
Rachel Wall
GIS Programmer/Analyst I E911 Address Coordinator
Telephone: (910) 947-1078 I Fax: (910) 947-2313
Sent: Tuesday, June 18, 2013 1:58PM
To: Wall, Rachel
Good afternoon Rachel,
Did you have an opportunity to speak with the Town on the street names?
Maggie Lockwood. CAM. NC Broker
Director of Regional Development
Caviness and Cates. LLC
639 Executive Place, Suite 400
Fayetteville. NC 28305
910-431-3732 cell
910-481-0501 office
"You're The Reason"
www.CavinessandCatesapartments.com
2
.... Caviness
....
(. v.TTcates
~....~
J,wff
.:~r
ltv.'n'n
From: Wall, Rachel [mailto:[email protected]]
To: Maggie Lockwood
Since this falls under the Southern Pines Planning and annexation is required the road names will be ultimately approved
by Southern Pines. We (Southern Pines and Moore County GIS) work together and I will be your point of contact for the
roads and addresses. One of the people I need to speak with in Southern Pines is out of the office this week. It will be
next week before I can give you an update on the road names.
Rachel Wall
GIS Programmer/Analyst I E911 Address Coordinator
Telephone: (910) 947-1078 I Fax: (910) 947-2313
Sent: Wednesday, June 12, 2013 1:59PM
To: Wall, Rachel
Thank you so much. I have attached the preliminary plat.
Maggie Lockwood. CAM. NC Broker
Caviness and Cates, LLC
910-431-3732 cell
910-481-0501 office
"You're The Reason"
.... Caviness
(•. (\:cates
),'H'N' 1kt ~~f'!VWifl
From: Wall, Rachel [mailto:[email protected]]
Sent: Wednesday, June 12, 2013 1:53PM
To: Maggie Lockwood
Yes I can help. Do you have a plat that you can provide to be able to determine the correct number of roads required?
The new road names cannot be duplicated with existing road names within the county. A list of existing road names can
be at http://www.moorecountync.gov/webfiles/GIS/docs/DataDownload/MooreCountvStreets.pdf
3
Rachel Wall
GIS Programmer/ Analyst I E911 Address Coordinator
Telephone: (910) 947-1078 I Fax: (910) 947-2313
To: Wall, Rachel
Subject: addresses for The Legends at Morganton Park
Good afternoon Rachel,
I need to apply for street names and addresses for our new apartment community. Bob Koontz gave me your contact
information. Is this something you can help me with?
Maggie Lockwood, CAM, NC Broker
Caviness and Cates, LLC
910-431-3732 cell
91 0-481-0501 office
"You're The Reason"
.... Caviness
(•. L\:cates
lm 'u .'.Ar f?r::nwr.
4
CERTIFICATE OF SUFFICIENCY
To the Town Council of the Town of Southern Pines, North Carolina.
I, Phillip Britt, Town Clerk, do hereby certify that I have investigated the petition
attached hereto and have found as a fact that said petition is signed by all owners of real property
lying in the area described therein, in accordance with G.S. 160A-31, as amended.
In witness whereof, I have hereunto set my hand and affixed the seal of the Town of Southern
Pines, this 25th day of July, 2013.
(SEAL)
________________________________
Phillip Britt, Town Clerk
AX-01-13
Morganton Park
RESOLUTION DIRECTING THE CLERK TO INVESTIGATE
A PETITION RECEIVED UNDER G.S. 160A-31
WHEREAS, a petition requesting annexation of an area described in said petition was
received on July 8, 2013 by the Town Council of the Town of Southern Pines; and
WHEREAS, G.S. 160A-31 provides that the sufficiency of the petition shall be
investigated by the Town Clerk before further annexation proceedings may take place; and
WHEREAS, the Town Council of the Town of Southern Pines deems it advisable to
proceed in response to this request for annexation;
NOW, THEREFORE, BE IT RESOLVED by the Town Council of the Town of
Southern Pines that:
The Town Clerk is hereby directed to investigate the sufficiency of the above described
petition and to certify as soon as possible to the Town Council the result of his investigation.
ATTEST:
_________________________________
______________________________
David McNeill, Mayor
AX-01-13
Morganton Park
RESOLUTION FIXING DATE OF PUBLIC HEARING ON QUESTION OF
ANNEXATION PURSUANT TO G.S. 160A-31 AS AMENDED
WHEREAS, a petition requesting annexation of an area described herein has been received; and
WHEREAS, the Town Council has by resolution directed the Town Clerk to investigate the
sufficiency thereof; and
WHEREAS, certification by the Town Clerk as to the sufficiency of said petition has been
made;
NOW, THEREFORE BE IT RESOLVED by the Town Council of the Town of Southern
Pines, North Carolina:
Section 1.
That a public hearing on the question of annexation of the area described herein
will be held at the Douglass Community Center at 7:00 o’clock, p.m. on the 10th of September,
2013.
Section 2.
The area proposed for annexation is described as follows:
LYING AND BEING IN THE TOWN OF SOUTHERN PINES, MINERAL SPRINGS
TOWNSHIP, MOORE COUNTY, NORTH CAROLINA. BOUNDED ON THE NORTH BY
PLANTATION INVESTORS, LLC, DB 2069 PG 533, ON THE EAST, SOUTH AND WEST
SIDES BY ROBERT W. VAN CAMP (DB 1589 PG 80) AND BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT AN EXISTING IRON ROD, A SOUTHERN CORNER OF PLANTATION
INVESTORS, LLC (DB 2069 PG 533), EXISTING IRON ROD HAVING NC GRID
COORDINATES NAD83(86) N=520,218.8256’ AND E=1,873,812.7299’, AND RUNS
THENCE WITH PLANTATION INVESTORS, LLC SOUTHERN LINE N 64º29’54” E
906.37’ TO AN EXISTING IRON ROD; THENCE WITH THE SOUTHERN LINE OF
PLANTATION INVESTORS, LLC N 64º28’59” E 268.38’ TO AN EXISTING IRON ROD IN
THE SOUTHERN LINE OF PLANTATION INVESTORS, LLC AND THE WESTERN LINE
OF ROBERT W. VAN CAMP (DB 1589 PG 80) RUNNING THENCE WITH ROBERT W.
VAN CAMP’S WESTERN LINE S 21º58’10” E 918.37’ TO AN EXISTING IRON ROD;
THENCE LEAVING ROBERT W. VAN CAMP’S WESTERN LINE AND PROPOSED
FUTURE ROAD #3 RIGHT-OF-WAY (68’ R/W) S 74º32’34” W 304.03’ TO AN EXISTING
IRON; THENCE A CURVE RUNNING CLOCKWISE TO THE NORTH HAVING A
RADIUS OF 1000.00’, AN ARC LENGTH OF 394.82’ AND A CHORD BEARING
DISTANCE OF S 85º51’12” W 392.26’ TO A POINT IN THE RIGHT-OF-WAY OF
PROPOSED FUTURE ROAD #3 AND PROPOSED BRUCEWOOD ROAD EXTENTION
(100’ R/W); THENCE A CURVE RUNNING CLOCKWISE TO THE NORTH HAVING A
RADIUS OF 1000.00’, AN ARC LENGTH OF 100.59’ AND A CHORD BEARING AND
DISTANCE OF N 79º57’16” W 100.54’ TO A POINT IN THE PROPOSED FUTURE ROAD
#2 (68’ R/W) AND THE PROPOSED BRUCEWOOD ROAD EXTENSION; THENCE
RUNNING WITH PROPOSED FUTURE ROAD #2, A CURVE RUNNING CLOCKWISE TO
THE NORTH HAVING A RADIUS OF 1000.00’, AN ARC LENGTH OF 438.64’ AND A
CHORD BEARING AND DISTANCE OF N 64º30’24” W 435.14’ TO A POINT IN THE
RIGHT-OF-WAY OF PROPOSED FUTURE ROAD #2 (68’ R/W) AND PROPOSED
FUTURE ROAD #1; THENCE A CURVE RUNNING CLOCKWISE TO THE NORTH
HAVING A RADIUS OF 1000.00’, AN ARC LENGTH OF 188.15’ AND A CHORD
BEARING AND DISTANCE OF N 46º33’01” W 187.87’ TO AN EXISTING IRON IN THE
PROPOSED NORTHERN RIGHT-OF-WAY OF FUTURE ROAD #1 AND RUNNING
THENCE WITH NORTHERN RIGHT-OF-WAY OF FUTURE ROAD #1 N 41º09’42” W
76.36’ TO AN EXISTING IRON ROD IN THE NORTHERN RIGHT-OF-WAY OF
PROPOSED ROAD #1, THENCE A CURVE RUNNING COUNTERCLOCKWISE TO THE
SOUTH HAVING A RADIUS OF 525.00’, AN ARC LENGTH OF 73.77’ AND A CHORD
BEARING AND DISTANCE OF N 45º11’10” W 73.71’ TO AN EXISTING IRON ROD IN
THE NORTHERN RIGHT-OF-WAY OF PROPOSED FUTURE ROAD #1 AND ROBERT W.
VAN CAMP TRACT (DB 1589 PG 80) RUNNING THENCE N 43º25’33” E 16.19’ TO THE
BEGINNING, CONTAINING 18.49 ACRES, MORE OR LESS, AND BEING A PORTION OF
THE ORIGINAL TRACT DESCRIBED IN DEED BOOK 1589 PAGE 80, MOORE COUNTY
REGISTRY. ALL BEARINGS HEREIN ARE TO NC GRID NAD83 (86) NORTH MERIDIAN
AND ALL DISTANCES HORIZONTAL GROUND.
Section 3.
Notice of said public hearing shall be published in The Pilot, a newspaper having
general circulation in the Town of Southern Pines, at least ten (10) days prior to the date of said
public hearing.
I certify that this resolution was adopted by the Town Council of the Town of Southern Pines at
its meeting of August 13, 2013, as shown in the minutes of the Town Council for that date.
(SEAL)
________________________________
AX-01-13
Morganton Park
Market: NC/SC
Cell Site Number: 141-143
Cell Site Name: SOUTHERN PINES WT
Fixed Asset Number: 10040635
STRUCTURE LEASE AGREEMENT
THIS STRUCTURE LEASE AGREEMENT ("Agreement"), is the first of the month following
the latter of the signature dates below (the “Effective Date”), is entered into by the Town of Southern
Pines, a body Politic, having a mailing address of 125 South East Broad Street, Southern Pines, NC 28387
("Landlord") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a
mailing address of Suite 375 West Tower, 575 Morosgo Drive NE, Atlanta, GA 30324 ("Tenant").
BACKGROUND
Landlord owns or controls that certain plot, parcel or tract of land, improved with a water-tank
structure (the “Structure”), together with all rights and privileges arising in connection therewith, located
at 475 North Ridge, Southern Pines, in the County of Moore, State of North Carolina (collectively, the
"Property"). On February 28, 2007, the Landlord and Tenant entered into an Option and Lease
Agreement (“Original Agreement”). Effective August 1, 2007, the Tenant has used a portion of the
Property in connection with its federally licensed communications business. The Original Agreement has
two, five-year terms. The Original Agreement is currently in the second term and is set to expire on July
31, 2017. Landlord desires to grant to Tenant the continued right to use a portion of the Property in
accordance with this Agreement. Upon the last day of the month following full execution of this
Agreement, the Original Agreement will be terminated and rendered null and void.
The parties agree as follows:
1.
LEASE OF PREMISES. Landlord hereby leases to Tenant:
(i) approximately Five-Hundred (500) square feet including the air space above such ground space
for the placement of Tenant’s Communication Facility as described on attached Exhibit 1;
(the “Equipment Space”);
(ii) that certain space on the Structure, as generally depicted on attached Exhibit 1, where Tenant
shall have the right to install its antennas and other equipment (collectively, the “Antenna Space”); and
(iii) those certain areas where Tenant’s conduits, wires, cables, cable trays and other necessary
connections are located between the Equipment Space and the Antenna Space, and between the
Equipment Space and the electric power, telephone, and fuel sources for the Property (hereinafter
collectively referred to as the “Connection Space”). Landlord agrees that Tenant shall have the right to
install connections between Tenant’s equipment in the Equipment Space and Antenna Space; and
between Tenant’s equipment in the Equipment Space and the electric power, telephone, and fuel sources
for the Property, and any other improvements. Landlord further agrees that Tenant shall have the right to
install, replace and maintain utility lines, wires, poles, cables, conduits, pipes and other necessary
connections over or along any right-of-way extending from the nearest public right-of-way to the
Premises. Notwithstanding the foregoing, Tenant, to the extent feasible, shall locate all lines, wires,
conduits and cables on existing poles extending from the roadway into Landlord’s Property. The
Equipment Space, Antenna Space, and Connection Space are hereinafter collectively referred to as the
“Premises.”
Version 4-8-2010 Structure Lease
2.
PERMITTED USE. Tenant may use the Premises for the transmission and reception of
communications signals and the installation, construction, maintenance, operation, repair, replacement
and upgrade of its communications fixtures and related equipment, cables, accessories and improvements,
which may include a suitable support structure, associated antennas, I beams, equipment shelters or
cabinets and fencing and any other items necessary to the successful and secure use of the Premises
(collectively, the "Communication Facility"), as well as the right to test, survey and review title on the
Property; Tenant further has the right but not the obligation to add, modify and/or replace equipment in
order to be in compliance with any current or future federal, state or local mandated application,
including, but not limited to, emergency 911 communication services, at no additional cost to Tenant or
Landlord (collectively, the "Permitted Use"). Landlord and Tenant agree that any portion of the
Communication Facility that may be conceptually described on Exhibit 1 will not be deemed to limit
Tenant's Permitted Use. If Exhibit 1 includes drawings of the initial installation of the Communication
Facility, Landlord’s execution of this Agreement will signify Landlord’s approval of Exhibit 1. For a
period of ninety (90) days following the start of construction, Landlord grants Tenant, its subtenants,
licensees and sublicensees, the right to use such portions of Landlord’s contiguous, adjoining or
surrounding property (the “Surrounding Property”) as may reasonably be required during
construction and installation of the Communications Facility. Tenant has the right to install and operate
transmission cables from the equipment shelter or cabinet to the antennas, electric lines from the main
feed to the equipment shelter or cabinet and communication lines from the Property’s main entry point to
the equipment shelter or cabinet, and to make Property improvements, alterations, upgrades or additions
appropriate for Tenant's use ("Tenant Changes"). Tenant Changes include the right to undertake
appropriate means to secure the Premises at Tenant’s expense. Tenant agrees to comply with all
applicable governmental laws, rules, statutes and regulations relating to its use of the Communication
Facility on the Property. Tenant has the right to modify, supplement, replace, upgrade, expand the
equipment, or relocate the Communication Facility within the Premises at any time during the term of this
Agreement. However, should Tenant desire to increase the number of antennas, or relocate the
Communication Facility within the Premises, Tenant has the right to do so at any time during the terms of
this Agreement upon Landlord’s prior written consent which shall not be unreasonably withheld, delayed,
or conditioned. Tenant will be allowed to make such alterations to the Property in order to accomplish
Tenant’s Changes or to insure that Tenant’s Communication Facility complies with all applicable federal,
state or local laws, rules or regulations. In the event Tenant desires to modify or upgrade the
Communication Facility, and Tenant requires an additional portion of the Property (the “Additional
Premises”) for such modification or upgrade, Landlord agrees to lease to Tenant the Additional Premises,
if Additional Premises are available for such expansion, upon the same terms and conditions set forth
herein, except that the Rent shall increase, in conjunction with the lease of the Additional Premises by the
amount equivalent to the then-current per square foot rental rate charged by Landlord to Tenant times the
square footage of the Additional Premises. Landlord agrees to take such actions and enter into and deliver
to Tenant such documents as Tenant reasonably requests in order to effect and memorialize the lease of
the Additional Premises to Tenant.
3.
TERM.
(a)
The initial lease term will be five (5) years ("Initial Term"), commencing on the
Effective Date. The Initial Term will terminate on the fifth (5th) anniversary of the Effective Date.
(b)
This Agreement will automatically renew for one (1) additional five (5) year additional
term() five (5) year term shall be defined as an "Extension Term"), upon the same terms and conditions
unless Tenant notifies Landlord in writing of Tenant’s intention not to renew this Agreement at least sixty
(60) days prior to the expiration of the existing Term.
(c)
If, at least sixty (60) days prior to the end of the final Extension Term, either Landlord or
Tenant has not given the other written notice of its desire that the term of this Agreement end at the
expiration of the final Extension Term, then upon the final Extension Term this Agreement shall continue
in force upon the same covenants, terms and conditions for a further term of one (1) year, and for annual
terms thereafter (“Annual Term”) until terminated by either party by giving to the other written notice of
its intention to so terminate at least six (6) months prior to the end of any such Annual Term. Monthly
rental during such annual terms shall be equal to the rent paid for the last month of the final Extension
Term. If Tenant remains in possession of the Premises after the termination of this Agreement, then
Tenant will be deemed to be occupying the Premises on a month-to-month basis (the "Holdover Term"),
subject to the terms and conditions of this Agreement.
(d)
The Initial Term, any Extension Terms, any Annual Terms and any Holdover Term are
collectively referred to as the Term ("Term").
4.
RENT.
(a)
Commencing on the Effective Date (the "Rent Commencement Date"), Tenant will pay
Landlord on or before the fifth (5th) day of each calendar year in advance Forty-Six Thousand Eight
Hundred and No/100 Dollars ($46,800.00) (the “Rent"), at the address set forth above. In any partial
month occurring after the Rent Commencement Date, Rent will be prorated. The initial Rent payment will
be forwarded by Tenant to Landlord within forty-five (45) days after the Rent Commencement Date.
(b)
In year one (1) of each Extension Term, the annual Rent will increase by thirty percent
(30 %) over the Rent paid during the previous Term.
(c)
All charges payable under this Agreement such as utilities and taxes shall be billed by
Landlord within one (1) year from the end of the calendar year in which the charges were incurred; any
charges beyond such period shall not be billed by Landlord, and shall not be payable by Tenant. The
foregoing shall not apply to monthly rent which is due and payable without a requirement that it be billed
by Landlord. The provisions of this subsection shall survive the termination or expiration of this
Agreement.
5.
APPROVALS.
(a)
Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability
of the Premises and Property for Tenant's Permitted Use and Tenant's ability to obtain and maintain all
governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate
by Tenant for its use of the Premises, including without limitation applications for zoning variances,
zoning ordinances, amendments, special use permits, and construction permits (collectively, the
"Government Approvals"). Landlord authorizes Tenant to prepare, execute and file all required
applications to obtain Government Approvals for Tenant’s Permitted Use under this Agreement and
agrees to reasonably assist Tenant with such applications and with obtaining and maintaining the
Government Approvals. In addition, Tenant shall have the right to initiate the ordering and/or scheduling
of necessary utilities.
(b)
Tenant has the right to obtain a title report or commitment for a leasehold title policy
from a title insurance company of its choice and to have the Property surveyed by a surveyor of its choice.
(c)
Tenant may also perform and obtain, at Tenant’s sole cost and expense, soil borings,
percolation tests, engineering procedures, environmental investigation or other tests or reports on, over,
and under the Property, necessary to determine if Tenant’s use of the Premises will be compatible with
Tenant’s engineering specifications, system, design, operations or Government Approvals.
6.
TERMINATION. This Agreement may be terminated, without penalty or further liability, as
follows:
(a)
by either party on thirty (30) days’ prior written notice, if the other party remains in
default under Section 15 of this Agreement after the applicable cure periods;
(b)
by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any
required approval(s) or the issuance of a license or permit by any agency, board, court or other
governmental authority necessary for the construction or operation of the Communication Facility as now
or hereafter intended by Tenant; or if Tenant determines, in its sole discretion, that the cost of obtaining or
retaining the same is commercially unreasonable;
(c)
by Tenant, upon written notice to Landlord, if Tenant determines, in its sole discretion,
due to the title report results or survey results, that the condition of the Premises is unsatisfactory for its
intended uses;
(d)
by Tenant upon written notice to Landlord for any reason or no reason, at any time prior
to commencement of construction by Tenant; or
(e)
by Tenant upon sixty (60) days’ prior written notice to Landlord for any reason or no
reason, so long as Tenant pays Landlord a termination fee equal to three (3) months’ Rent, at the thencurrent rate, provided, however, that no such termination fee will be payable on account of the
termination of this Agreement by Tenant under any one or more of Sections 5 Approvals, 6(a)
Termination, 6(b) Termination, 6(c) Termination, 8 Interference, 11(d) Environmental, 18 Condemnation,
19 Casualty, or 24(l) Severability of this Agreement.
7.
INSURANCE. During the Term, Tenant will carry, at its own cost and expense, the following
insurance: (i) “All Risk” property insurance for its property’s replacement cost; (ii) Workers’
Compensation Insurance as required by law; and (iii) commercial general liability (CGL) insurance with
respect to its activities on the Property, such insurance to afford minimum protection of Three Million
Dollars ($3,000,000) combined single limit, per occurrence and in the aggregate, providing coverage for
bodily injury and property damage. Tenant’s CGL insurance shall contain a provision including Landlord
as an additional insured to the extent of the indemnity provided by Tenant under this Agreement.
Notwithstanding the foregoing, Tenant shall have the right to self-insure against the risks for which
Tenant is required to insure against in this Section. In the event Tenant elects to self-insure its obligation
to include Landlord as an additional insured as permitted by the previous sentence, the following
provisions shall apply: (1) Landlord shall promptly and no later than seven (7) days after notice thereof
provide Tenant with written notice of any claim, demand, lawsuit or the like for which it seeks coverage
pursuant to this Section and provide Tenant with copies of any demands, notices, summonses, or legal
papers received in connection with such claim, demand, lawsuit or the like; (2) Landlord shall not settle
any such claim, demand, lawsuit or the like without the prior written consent of Tenant; (3) Landlord
shall fully cooperate with Tenant in the defense of the claim, demand, lawsuit or the like; (4) Tenant’s
self-insurance obligation for Landlord shall not extend to claims for punitive damages, exemplary
damages, or gross negligence; and (5) such obligation shall not apply when the claim or liability arises
from the negligent or intentional act or omission of Landlord, its employees, agents, or independent
contractors.
8.
INTERFERENCE.
(a)
Where there are existing radio frequency user(s) on the Property, Landlord will provide
Tenant, upon execution of this Agreement, with a list of all existing radio frequency user(s) on the
Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use of the
Premises will not interfere with existing radio frequency user(s) on the Property so disclosed by Landlord,
as long as the existing radio frequency user(s) operate and continue to operate within their respective
frequencies and in accordance with all applicable laws and regulations.
(b)
Landlord will not grant, after the date of this Agreement, a lease, license or any other
right to any third party for the use of the Property, if such use may in any way adversely affect or interfere
with the Communication Facility, the operations of Tenant or the rights of Tenant under this Agreement.
.
(c)
Landlord will not use, nor will Landlord permit its employees, tenants, licensees,
invitees, agents or independent contractors to use, any portion of the Property in any way which interferes
with the Communication Facility, the operations of Tenant or the rights of Tenant under this Agreement.
Landlord will cause such interference to cease within twenty-four (24) hours after receipt of notice of
interference from Tenant. In the event any such interference does not cease within the aforementioned
cure period, Landlord shall cease all operations which are suspected of causing interference (except for
intermittent testing to determine the cause of such interference) until the interference has been corrected.
(d)
For the purposes of this Agreement, “interference” may include, but is not limited to, any
use on the Property or Surrounding Property that causes electronic or physical obstruction with, or
degradation of, the communications signals from the Communication Facility.
9.
INDEMNIFICATION.
(a)
Tenant agrees to indemnify, defend and hold Landlord harmless from and against any and
all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses
(including reasonable attorneys' fees and court costs) arising directly from the installation, use,
maintenance, repair or removal of the Communication Facility or Tenant's breach of any provision of this
Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its
employees, agents or independent contractors.
(b)
Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and
all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses
(including reasonable attorneys' fees and court costs) arising directly from the actions or failure to act of
Landlord, its employees or agents, or Landlord's breach of any provision of this Agreement, except to the
extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents or
independent contractors.
10.
WARRANTIES.
(a)
Tenant and Landlord each acknowledge and represent that it is duly organized, validly
existing and in good standing and has the right, power and authority to enter into this Agreement and bind
itself hereto through the party set forth as signatory for the party below.
(b)
Landlord represents, warrants and agrees that: (i) Landlord solely owns the Property as a
legal lot in fee simple, or controls the Property by lease or license and solely owns the structure; (ii) the
Property is not and will not be encumbered by any liens, restrictions, mortgages, covenants, conditions,
easements, leases, or any other agreements of record or not of record, which would adversely affect
Tenant's Permitted Use and enjoyment of the Premises under this Agreement; (iii) as long as Tenant is not
in default then Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession
of the Premises; (iv) Landlord's execution and performance of this Agreement will not violate any laws,
ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on Landlord;
and (v) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security
interest, Landlord will provide promptly to Tenant a mutually agreeable subordination, non-disturbance
and attornment agreement.
11.
ENVIRONMENTAL.
(a)
Landlord represents and warrants, except as may be identified in Exhibit 11 attached to
this Agreement, (i) the Property, as of the date of this Agreement, is free of hazardous substances,
including asbestos-containing materials and lead paint, and (ii) the Property has never been subject to any
contamination or hazardous conditions resulting in any environmental investigation, inquiry or
remediation. Landlord and Tenant agree that each will be responsible for compliance with any and all
applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law
regulating or imposing standards of liability or standards of conduct with regard to protection of the
environment or worker health and safety, as may now or at any time hereafter be in effect, to the extent
such apply to that party’s activity conducted in or on the Property
(b)
Landlord and Tenant agree to hold harmless and indemnify the other from, and to assume
all duties, responsibilities and liabilities at the sole cost and expense of the indemnifying party for,
payment of penalties, sanctions, forfeitures, losses, costs or damages, and for responding to any action,
notice, claim, order, summons, citation, directive, litigation, investigation or proceeding (“Claims”), to
the extent arising from that party’s breach of its obligations or representations under Section 11(a).
Landlord agrees to hold harmless and indemnify Tenant from, and to assume all duties, responsibilities
and liabilities at the sole cost and expense of Landlord for, payment of penalties, sanctions, forfeitures,
losses, costs or damages, and for responding to any Claims, to the extent arising from subsurface or other
contamination of the Property with hazardous substances prior to the effective date of this Agreement or
from such contamination caused by the acts or omissions of the Landlord during the Term. Tenant agrees
to hold harmless and indemnify Landlord from, and to assume all duties, responsibilities and liabilities at
the sole cost and expense of Tenant for, payment of penalties, sanctions, forfeitures, losses, costs or
damages, and for responding to any Claims, to the extent arising from hazardous substances brought onto
the Property by Tenant.
(c)
The indemnifications of this Section 11 specifically include reasonable costs, expenses
and fees incurred in connection with any investigation of Property conditions or any clean-up,
remediation, removal or restoration work required by any governmental authority. The provisions of this
Section 11 will survive the expiration or termination of this Agreement.
(d)
In the event Tenant becomes aware of any hazardous materials on the Property, or any
environmental, health or safety condition or matter relating to the Property, that, in Tenant’s sole
determination, renders the condition of the Premises or Property unsuitable for Tenant’s use, or if Tenant
believes that the leasing or continued leasing of the Premises would expose Tenant to undue risks of
liability to a government agency or third party, Tenant will have the right, in addition to any other rights it
may have at law or in equity, to terminate this Agreement upon written notice to Landlord.
12.
ACCESS. At all times throughout the Term of this Agreement, and at no additional charge to
Tenant, Tenant and its employees, agents, and subcontractors, will have twenty-four (24) hour per day,
seven (7) day per week pedestrian and vehicular access (“Access”) to and over the Property, from an open
and improved public road or easement to the Premises, for the installation, maintenance and operation of
the Communication Facility and any utilities serving the Premises. As may be described more fully in
Exhibit 1, Landlord grants to Tenant an easement for such access and Landlord agrees to provide to
Tenant such codes, keys and other instruments necessary for such access at no additional cost to Tenant.
Landlord acknowledges that in the event Tenant cannot access the Premises, Tenant shall incur significant
damage. If Landlord fails to provide the access granted by this Section 12, such failure shall be a default
under this Agreement. In connection with such default, in addition to any other rights or remedies
available to Tenant under this Agreement or at law or equity, Landlord shall pay Tenant, as liquidated
damages and not as a penalty, $500.00 per day in consideration of Tenant’s damages until Landlord cures
such default. Landlord and Tenant agree that Tenant’s damages in the event of a denial of access are
difficult, if not impossible, to ascertain, and the liquidated damages set forth above are a reasonable
approximation of such damages. Upon Tenant's request and sole expense Landlord will execute a
separate recordable easement evidencing this right. Landlord shall execute a letter granting Tenant access
to the Property substantially in the form attached as Exhibit 12; upon Tenant’s request, Landlord shall
execute additional letters during the Term.
13.
REMOVAL/RESTORATION. All portions of the Communication Facility brought onto the
Property by Tenant will be and remain Tenant’s personal property and, at Tenant's option, may be
removed by Tenant at any time during the Term. Landlord covenants and agrees that no part of the
Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be
considered as being affixed to or a part of, the Property, it being the specific intention of Landlord that all
improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be
and remain the property of Tenant and may be removed by Tenant at any time during the Term. Within
one hundred twenty (120) days of the termination of this Agreement, Tenant will remove all of Tenant’s
above-ground improvements and Tenant will, to the extent reasonable, restore the Premises to its
condition at the commencement of this Agreement, reasonable wear and tear and loss by casualty or other
causes beyond Tenant’s control excepted. Notwithstanding the foregoing, Tenant will not be responsible
for the replacement of any trees, shrubs or other vegetation, nor will Tenant be required to remove from
the Premises or the Property any structural steel or any foundations or underground utilities.
14.
MAINTENANCE/UTILITIES.
(a)
Tenant will keep and maintain the Premises in good condition, reasonable wear and tear
and damage from the elements excepted. Landlord will maintain and repair the Property and access
thereto, the Structure, and all areas of the Premises where Tenant does not have exclusive control, in good
and tenantable condition, subject to reasonable wear and tear and damage from the elements. Landlord
will be responsible for maintenance of landscaping on the Property, including any landscaping installed
by Tenant as a condition of this Agreement or any required permit.
(b)
Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges
for electricity, telephone service or any other utility used or consumed by Tenant on the Premises. In the
event Tenant cannot secure its own metered electrical supply, Tenant will have the right, at its own cost
and expense, to submeter from Landlord. When submetering is required under this Agreement, Landlord
will read the meter and provide Tenant with an invoice and usage data on a monthly basis. Landlord
agrees that it will not include a markup on the utility charges. Landlord further agrees to provide the
usage data and invoice on forms provided by Tenant and to send such forms to such address and/or agent
designated by Tenant. Tenant will remit payment within forty-five (45) days of receipt of the usage data
and required forms. As noted in Section 4(c) above, any utility fee recovery by Landlord is limited to a
twelve (12) month period. If Tenant submeters electricity from Landlord, Landlord agrees to give Tenant
at least twenty-four (24) hours advanced notice of any planned interruptions of said electricity. Landlord
acknowledges that Tenant provides a communication service which requires electrical power to operate
and must operate twenty-four (24) hours per day, seven (7) days per week. If the interruption is for an
extended period of time, in Tenant’s reasonable determination, Landlord agrees to allow Tenant the right
to bring in a temporary source of power for the duration of the interruption. Landlord will not be
responsible for interference with, interruption of or failure, beyond the reasonable control of Landlord, of
such services to be furnished or supplied by Landlord.
(c)
Landlord hereby grants to any utility company providing utility services to Tenant an
easement over the Property, from an open and improved public road to the Premises, and upon the
Premises, for the purpose of constructing, operating and maintaining such lines, wires, circuits, and
conduits, associated equipment cabinets and such appurtenances thereto, as such utility companies may
from time to time require in order to provide such services to the Premises. Upon Tenant’s or a utility
company’s request, Landlord will execute a separate recordable easement evidencing this grant, at no cost
to Tenant or the public utility.
(d) Landlord and Tenant acknowledge that Landlord contemplates required maintenance on water
tower periodically (i.e. repainting or sand blasting) upon which the Premises are located, typically every
seven (7) to ten (10) years. Pursuant to the terms and conditions of this Paragraph, Landlord reserves the
right to temporarily relocate Tenant’s Facilities, at Tenant’s sole expense on the Structure to a different
location on the Property to accommodate the required maintenance of the Structure. Such relocation shall
not unreasonably result in any interruption of the communications service of Tenant on Landlord’s
Property; nor shall such relocation impair, or in any manner alter, the quality of communications service
provided by Tenant on and from Landlord’s Property. Landlord will exercise its relocation right by
delivering 6 months written notice to Tenant. Tenant will have the option to bring onto Landlord’s
Property, at a location acceptable to Tenant, a temporary communication facility (i.e. a Cell on Wheels)
during the time Landlord is performing the required maintenance on the Structure. Immediately
following the completion of the required maintenance of the Structure, Tenant shall have the right to
relocate again to the prior location on the Structure.
15.
DEFAULT AND RIGHT TO CURE.
(a)
The following will be deemed a default by Tenant and a breach of this Agreement: (i)
non-payment of Rent if such Rent remains unpaid for more than thirty (30) days after receipt of written
notice from Landlord of such failure to pay; or (ii) Tenant's failure to perform any other term or condition
under this Agreement within forty-five (45) days after receipt of written notice from Landlord specifying
the failure. No such failure, however, will be deemed to exist if Tenant has commenced to cure such
default within such period and provided that such efforts are prosecuted to completion with reasonable
diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of
Tenant. If Tenant remains in default beyond any applicable cure period, Landlord will have the right to
exercise any and all rights and remedies available to it under law and equity.
(b)
The following will be deemed a default by Landlord and a breach of this Agreement: (i)
failure to provide access to the Premises or to cure an interference problem within twenty-four (24) hours
after receipt of written notice of such default; or (ii) Landlord's failure to perform any term, condition or
breach of any warranty or covenant under this Agreement within forty-five (45) days after receipt of
written notice from Tenant specifying the failure. No such failure, however, will be deemed to exist if
Landlord has commenced to cure the default within such period and provided such efforts are prosecuted
to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond
the reasonable control of Landlord. If Landlord remains in default beyond any applicable cure period,
Tenant will have: (i) the right to cure Landlord’s default and to deduct the costs of such cure from any
monies due to Landlord from Tenant, and (ii) any and all other rights available to it under law and equity.
16.
ASSIGNMENT. Tenant will have the right to assign this Agreement and its rights herein, in
whole or in part, without Landlord’s consent. Upon notification to Landlord of such assignment, Tenant
will be relieved of all future performance, liabilities and obligations under this Agreement to the extent of
such assignment.
17.
NOTICES.
(a)
All notices, requests, demands and communications hereunder will be given by first class
certified or registered mail, return receipt requested, or by a nationally recognized overnight courier,
postage prepaid, to be effective when properly sent and received, refused or returned undelivered.
Notices will be addressed to the parties as follows:
If to Tenant:
New Cingular Wireless PCS, LLC
By: AT&T Mobility Corporation
Attn: Network Real Estate Administration
Re: Cell Site #:141-143, Cell Site Name: SOUTHERN PINES WT
FA No: 10040635
575 Morosgo Drive NE
Suite 13-F West Tower
Atlanta, GA 30324
With the required copy of legal notice sent to Tenant at the address above, a copy to the Legal
Department:
Attn: Legal Department,
Re: Cell Site #:141-143, Cell Site Name: SOUTHERN PINES WT
FA No: 10040635
208 S. Akard Street
Dallas, Texas, 75202-4206
A copy sent to the Legal Department is an administrative step which alone does not constitute
legal notice.
If to Landlord:
Town of Southern Pines
Attn: Assistant Town Manager
125 South East Broad Street
Southern Pines, NC 28387
Either party hereto may change the place for the giving of notice to it by thirty (30) days’ prior written
notice to the other as provided herein.
(b)
In the event of a change in ownership, transfer or sale of the Property, within ten (10)
days of such transfer, Landlord or its successor will send the documents listed below in this subsection (b)
to Tenant. Until Tenant receives all such documents, Tenant shall not be responsible for any failure to
make payments under this Agreement and reserves the right to hold payments due under this Agreement.
i.
ii.
iii.
iv.
v.
vi.
vii.
Old deed to Property
New deed to Property
Bill of Sale or Transfer
Copy of current Tax Bill
New IRS Form W-9
Completed and Signed AT&T Payment Direction Form
Full contact information for new Landlord including all phone number(s)
18.
CONDEMNATION. In the event Landlord receives notification of any condemnation
proceedings affecting the Property, Landlord will provide notice of the proceeding to Tenant within fortyeight (48) hours. If a condemning authority takes all of the Property, or a portion sufficient, in Tenant’s
sole determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the
date the title vests in the condemning authority. The parties will each be entitled to pursue their own
separate awards in the condemnation proceeds, which for Tenant will include, where applicable, the value
of its Communication Facility, moving expenses, prepaid Rent, and business dislocation expenses. Tenant
will be entitled to reimbursement for any prepaid Rent on a prorata basis.
19.
CASUALTY. Landlord will provide notice to Tenant of any casualty or other harm affecting the
Property within forty-eight (48) hours of the casualty or other harm. If any part of the Communication
Facility or Property is damaged by casualty or other harm as to render the Premises unsuitable, in
Tenant’s sole determination, then Tenant may terminate this Agreement by providing written notice to
Landlord, which termination will be effective as of the date of such casualty or other harm. Upon such
termination, Tenant will be entitled to collect all insurance proceeds payable to Tenant on account thereof
and to be reimbursed for any prepaid Rent on a prorata basis. Landlord agrees to permit Tenant to place
temporary transmission and reception facilities on the Property, but only until such time as Tenant is able
to activate a replacement transmission facility at another location; notwithstanding the termination of this
Agreement, such temporary facilities will be governed by all of the terms and conditions of this
Agreement, including Rent. If Landlord or Tenant undertakes to rebuild or restore the Premises and/or the
Communication Facility, as applicable, Landlord agrees to permit Tenant to place temporary transmission
and reception facilities on the Property at no additional Rent until the reconstruction of the Premises
and/or the Communication Facility is completed. If Landlord determines not to rebuild or restore the
Premises, Landlord will notify Tenant of such determination within thirty (30) days after the casualty or
other harm. If Landlord does not so notify Tenant, then Landlord will promptly rebuild or restore the
Premises to substantially the same condition as existed before the casualty or other harm. Landlord agrees
that the Rent shall be abated until the Premises are rebuilt or restored, unless Tenant places temporary
transmission and reception facilities on the Property.
20.
WAIVER OF LANDLORD’S LIENS. Landlord waives any and all lien rights it may have,
statutory or otherwise, concerning the Communication Facility or any portion thereof. The Communication
Facility shall be deemed personal property for purposes of this Agreement, regardless of whether any
portion is deemed real or personal property under applicable law; Landlord consents to Tenant’s right to
remove all or any portion of the Communication Facility from time to time in Tenant's sole discretion and
without Landlord's consent.
21.
TAXES. Landlord shall be responsible for payment of all ad valorem taxes levied upon the lands,
improvements and other property of Landlord. Tenant shall be responsible for all taxes levied upon
Tenant’s leasehold improvements (including Tenant’s equipment building and tower) on the Premises.
Landlord shall provide Tenant with copies of all assessment notices on or including the Premises
immediately upon receipt, along with sufficient written documentation detailing any assessment increases
attributable to the leasehold improvements, but in no event later than thirty (30) days after receipt by
Landlord. If Landlord fails to provide such notice within such time frame, Landlord shall be responsible
for all increases in taxes for the year covered by the assessment, and all subsequent years to the extent (a)
Landlord continues to fail in providing notice, or (b) Tenant is precluded from challenging such
assessment with the appropriate government authorities. Tenant shall have the right to contest, in good
faith, the validity or the amount of any tax or assessment levied against the Premises by such appellate or
other proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations,
pay same under protest, or take such other steps as Tenant may deem appropriate. This right shall include
the ability to institute any legal, regulatory or informal action in the name of Landlord, Tenant, or both,
with respect to the valuation of the Premises. Landlord shall cooperate in the institution and prosecution
of any such proceedings and will execute any documents required therefor. The expense of any such
proceedings shall be borne by Tenant and any refunds or rebates secured as a result of Tenant’s action
shall belong to Tenant.
22.
SALE OF PROPERTY.
(a)
Landlord shall not be prohibited from the selling, leasing or use of any of the Property or
the Surrounding Property except as provided below.
(b)
If Landlord, at any time during the Term of this Agreement, decides to rezone or sell,
subdivide or otherwise transfer all or any part of the Premises, or all or any part of the Property or
Surrounding Property, to a purchaser other than Tenant, Landlord shall promptly notify Tenant in writing,
and such rezoning, sale, subdivision or transfer shall be subject to this Agreement and Tenant’s rights
hereunder. In the event the Property is transferred, the new landlord shall have a duty at the time of such
transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other related paperwork
to effect a transfer in Rent to the new Landlord.
(c)
Landlord agrees not to sell, lease or use any areas of the Property or Surrounding
Property for the installation, operation or maintenance of other wireless communications facilities if such
installation, operation or maintenance would interfere with Tenant’s Permitted Use or communications
equipment as determined by radio propagation tests performed by Tenant in its sole discretion, any such
testing to be at the expense of Landlord or Landlord’s prospective purchaser, and not Tenant. If the radio
frequency propagation tests demonstrate levels of interference unacceptable to Tenant, Landlord shall be
prohibited from selling, leasing or using any areas of the Property or the Surrounding Property for
purposes of any installation, operation or maintenance of any other wireless communications facility or
equipment.
(d)
The provisions of this Section shall in no way limit or impair the obligations of Landlord
under this Agreement, including interference and access obligations.
23.
RENTAL STREAM OFFER. If at any time after the date of this Agreement, Landlord receives
a bona fide written offer from a third party seeking an assignment of the rental stream associated with this
Agreement (“Rental Stream Offer”), Landlord shall immediately furnish Tenant with a copy of the
Rental Stream Offer. Tenant shall have the right within twenty (20) days after it receives such copy and
representation to match the Rental Stream Offer and agree in writing to match the terms of the Rental
Stream Offer. Such writing shall be in the form of a contract substantially similar to the Rental Stream
Offer. If Tenant chooses not to exercise this right or fails to provide written notice to Landlord within the
twenty (20) day period, Landlord may assign the rental stream pursuant to the Rental Stream Offer,
subject to the terms of this Agreement.
24.
MISCELLANEOUS.
(a)
Amendment/Waiver. This Agreement cannot be amended, modified or revised unless
done in writing and signed by Landlord and Tenant. No provision may be waived except in a writing
signed by both parties. The failure by a party to enforce any provision of this Agreement or to require
performance by the other party will not be construed to be a waiver, or in any way affect the right of
either party to enforce such provision thereafter.
(b)
Memorandum/Short Form Lease. Contemporaneously with the execution of this
Agreement, the parties will execute a recordable Memorandum or Short Form of Lease substantially in
the form attached as Exhibit 24b. Either party may record this Memorandum or Short Form of Lease at
any time during the Term, in its absolute discretion. Thereafter during the Term of this Agreement, either
party will, at any time upon fifteen (15) business days’ prior written notice from the other, execute,
acknowledge and deliver to the other a recordable Memorandum or Short Form of Lease.
(c)
Limitation of Liability. Except for the indemnity obligations set forth in this Agreement,
and otherwise notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each
waives any claims that each may have against the other with respect to consequential, incidental or
special damages, however caused, based on any theory of liability.
(d)
Bind and Benefit. The terms and conditions contained in this Agreement will run with
the Property and bind and inure to the benefit of the parties, their respective heirs, executors,
administrators, successors and assigns.
(e)
Entire Agreement. This Agreement and the exhibits attached hereto, all being a part
hereof, constitute the entire agreement of the parties hereto and will supersede all prior offers,
negotiations and agreements with respect to the subject matter of this Agreement. Exhibits are numbered
to correspond to the Section wherein they are first referenced.
(f)
Governing Law. This Agreement will be governed by the laws of the state in which the
Premises are located, without regard to conflicts of law.
(g)
Interpretation. Unless otherwise specified, the following rules of construction and
interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the
construction of the terms and conditions hereof; (ii) use of the term "including" will be interpreted to
mean "including but not limited to"; (iii) whenever a party's consent is required under this Agreement,
except as otherwise stated in the Agreement or as same may be duplicative, such consent will not be
unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral part of this Agreement and are
incorporated by reference into this Agreement; (v) use of the terms "termination" or "expiration" are
interchangeable; (vi) reference to a default will take into consideration any applicable notice, grace and
cure periods; (vii) to the extent there is any issue with respect to any alleged, perceived or actual
ambiguity in this Agreement, the ambiguity shall not be resolved on the basis of who drafted the
Agreement; and (viii) the singular use of words includes the plural where appropriate.
(h)
Affiliates. All references to “Tenant” shall be deemed to include any Affiliate of New
Cingular Wireless PCS, LLC using the Premises for any Permitted Use or otherwise exercising the rights
of Tenant pursuant to this Agreement. “Affiliate” means with respect to a party to this Agreement, any
person or entity that (directly or indirectly) controls, is controlled by, or under common control with, that
party. “Control” of a person or entity means the power (directly or indirectly) to direct the management or
policies of that person or entity, whether through the ownership of voting securities, by contract, by
agency or otherwise.
(i)
Survival. Any provisions of this Agreement relating to indemnification shall survive the
termination or expiration hereof. In addition, any terms and conditions contained in this Agreement that
by their sense and context are intended to survive the termination or expiration of this Agreement shall so
survive.
(j)
W-9.
Landlord agrees to provide Tenant with a completed IRS Form W-9, or its
equivalent, upon execution of this Agreement and at such other times as may be reasonably requested by
Tenant.
(k)
No Electronic Signatures/No Option. The submission of this Agreement to any party
for examination or consideration does not constitute an offer, reservation of or option for the Premises
based on the terms set forth herein. This Agreement will become effective as a binding Agreement only
upon the handwritten legal execution, acknowledgment and delivery hereof by Landlord and Tenant.
(l)
Severability. If any provision of this Agreement is held invalid, illegal or unenforceable
by a court or agency of competent jurisdiction, (a) the validity, legality and enforceability of the
remaining provisions of this Agreement are not affected or impaired in any way if the overall purpose of
the Agreement is not rendered impossible and the original purpose, intent or consideration is not
materially impaired; and (b) the parties shall negotiate in good faith in an attempt to agree to another
provision (instead of the provision held to be invalid, illegal or unenforceable) that is valid, legal and
enforceable and carries out the parties’ intentions to the greatest lawful extent. If any such action or
determination renders the overall performance of this Agreement impossible or materially impairs the
original purpose, intent or consideration of this Agreement, and the parties are, despite the good faith
efforts of each, unable to amend this Agreement to retain the original purpose, intent and consideration in
compliance with that court or agency determination, either party may terminate this Agreement upon
sixty (60) days’ prior written notice to the other party.
(m)
Counterparts. This Agreement may be executed in two (2) or more counterparts, all of
which shall be considered on and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties. All parties need not sign the same counterpart.
(n)
WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY
LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING UNDER ANY THEORY OF LIABILITY ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS IT
CONTEMPLATES.
25.
LANDLORD’S LIABILITY FOR MARKING AND LIGHTING STRUCTURE.
(a)
Landlord represents, warrants and agrees that the Structure and the Property are and will
remain during the term of this Agreement in compliance with all federal, state and local laws and
regulations applicable to the Structure and the Property (“Legal Requirements”), including federal
(including without limitation, Federal Aviation Administration (“FAA”) and Federal Communications
Commission (“FCC”)), state and local marking, lighting, monitoring and any other regulatory obligations.
Landlord’s failure to comply with the foregoing obligations of this Section shall be a material default for
which Tenant may terminate this Agreement immediately upon written notice to Landlord. Landlord
further acknowledges that, to the extent such Legal Requirements are applicable, it is subject to
forfeitures assessed by the FCC, the FAA and/or any state or local regulatory agencies for violations of
such rules and requirements. Landlord shall forward to Tenant a written copy of any notices of
violation/apparent liability or forfeitures in connection with its regulatory obligations referenced in this
Section within five (5) business days of receipt.
(b)
If the Structure is subject to the FAA/FCC antenna structure marking and lighting
requirements, Landlord agrees (i) to allow Tenant to bridge into Landlord's automatic alarm system
("Alarm") which monitors the lighting of the Structure so as to permit a parallel alarm system and Tenant
shall be permitted continuous access to make repairs and inspections to its bridge, or (ii) if Landlord
currently does not have an Alarm, to cause to be installed such an Alarm which can accommodate a
bridge-in by Tenant, at Landlord's cost and expense, and to allow Tenant, at Tenant's own cost and
expense, to bridge into the Alarm and for Tenant to have continuous access to make repairs and
inspections to its bridge. Landlord, at its own expense, shall be responsible for the monitoring and for
maintaining the Alarm in good operating condition as required by any and all Legal Requirements.
Tenant shall, at its own expense, be responsible for the maintenance and repair of its bridge.
(c)
Nothing contained herein shall obligate Tenant to maintain Landlord's Alarm and
Landlord acknowledges that it, and not Tenant, shall be solely liable and responsible for compliance with
all such antenna structure marking and lighting requirements. Furthermore, should Tenant be cited by
any agency with regulatory authority over the Structure because the Structure is not in compliance,
Tenant may terminate this Agreement immediately upon written notice to Landlord.
(d)
If for any reason, Landlord fails to maintain any required marking and/or lighting on the
Structure, and Tenant has reason to believe that the Structure is not in compliance with the applicable
regulations, Landlord acknowledges and agrees that Tenant may (i) notify Landlord, any Landlord site
management company and the FCC thereof; and (ii) notwithstanding any other provision of this
Agreement, take immediate corrective action to ensure that the Structure is brought into compliance and
deduct the cost of such corrective action from any monies due to Landlord from Tenant.
[SIGNATURES APPEAR ON THE NEXT PAGE]
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the last
date written below.
"LANDLORD"
By:
Print Name:
Its:
Date:
"TENANT"
Its: Manager
By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
TENANT ACKNOWLEDGMENT
STATE OF
)
) ss:
)
COUNTY OF
On the _____ day of _______, 2013, before me personally appeared ___________________, and
acknowledged
under
oath
that
he
is
the
__________________________
of
_____________________________, the___________________________ named in the attached
instrument, and as such was authorized to execute this instrument on behalf of the
__________________________.
Notary Public:
My Commission Expires:
LANDLORD ACKNOWLEDGMENT
STATE OF ________________ )
)
COUNTY OF ______________ )
SS.
I certify that I know or have satisfactory evidence that ________________________________ is
the person who appeared before me, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it
as the __________________________________ of ______________________________________, to be
the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
EXHIBIT 1
DESCRIPTION OF PREMISES
Page 1 of 1
to the Agreement dated _____________, 2013, by and between Town of Southern Pines, a body
politic, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability company, as
Tenant.
The Premises are located on a portion of the Property described and/or depicted as follows:
Notes:
1.
2.
3.
4.
THIS EXHIBIT MAY BE REPLACED BY A LAND SURVEY AND/OR CONSTRUCTION DRAWINGS OF THE PREMISES ONCE
RECEIVED BY TENANT.
ANY SETBACK OF THE PREMISES FROM THE PROPERTY’S BOUNDARIES SHALL BE THE DISTANCE REQUIRED BY THE
APPLICABLE GOVERNMENTAL AUTHORITIES.
WIDTH OF ACCESS ROAD SHALL BE THE WIDTH REQUIRED BY THE APPLICABLE GOVERNMENTAL AUTHORITIES,
INCLUDING POLICE AND FIRE DEPARTMENTS.
THE TYPE, NUMBER AND MOUNTING POSITIONS AND LOCATIONS OF ANTENNAS AND TRANSMISSION LINES ARE
ILLUSTRATIVE ONLY. ACTUAL TYPES, NUMBERS AND MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN
ABOVE.
EXHIBIT 11
ENVIRONMENTAL DISCLOSURE
Landlord represents and warrants that the Property, as of the date of this Agreement, is free of
hazardous substances except as follows:
1. NONE.
EXHIBIT 12
STANDARD ACCESS LETTER
[FOLLOWS ON NEXT PAGE]
[Landlord Letterhead]
DATE
Building Staff / Security Staff
Landlord, Lessee, Licensee
Street Address
City, State, Zip
Re:
Authorized Access granted to AT&T
Dear Building and Security Staff,
Please be advised that we have signed a lease with AT&T permitting AT&T to
install, operate and maintain telecommunications equipment at the property. The
terms of the lease grant AT&T and its representatives, employees, agents and
subcontractors (“representatives”) 24 hour per day, 7 day per week access to the
leased area.
To avoid impact on telephone service during the day, AT&T representatives may
be seeking access to the property outside of normal business hours. AT&T
representatives have been instructed to keep noise levels at a minimum during their
visit.
Please grant the bearer of a copy of this letter access to the property and to leased
area. Thank you for your assistance.
_______________________
Landlord Signature
EXHIBIT 24b
MEMORANDUM OF LEASE
[FOLLOWS ON NEXT PAGE]
SAND HILLS
DAP 5.30.13
Upon Recording, Return to:
PENNINGTON LAW FIRM, L.L.C.
P.O. BOX 2844
COLUMBIA, SOUTH CAROLINA 29202
STATE OF NORTH CAROLINA )
)
COUNTY OF MOORE
)
MEMORANDUM OF WATER TOWER LEASE AGREEMENT
This Memorandum of Water Tow er Lease Agreement is made t his _____ day
of _____________, 2013, betw een TOWN OF SOUTHERN PINES, a municipal
corporation, w ith a mailing address of c/o Public Works Director, 140 Memorial Park
Ct., Southern Pines, North Carolina, 28387, hereinafter collectively referred to as
“ LESSOR” , and ALLTEL COMMUNICATIONS, LLC d/b/a Verizon Wireless, w ith its
principal office located at One Verizon Way, Mail Stop 4AW100, Basking Ridge,
New Jersey 07920, hereinafter referred to as “ LESSOR” . LESSOR and LESSEE are at
times collectively referred to hereinafter as the “ Parties” or individually as the
“ Party” .
1.
LESSOR and LESSEE entered into a Wat er Tow er Lease Agreement (the
“ Agreement” ) on
______, 2013, w hich runs until October 12,
2018. The Agreement shall automatically be extended for one (1) additional
five (5) year term unless LESSEE terminates it at the end of the then current
term by giving LESSOR w ritten notice of the intent to terminate at least six (6)
months prior to the end of the current term.
2.
LESSOR hereby leases to LESSEE a portion of that certain space on the
LESSOR' s Water Tow er, located at 475 N. Ridge Street, Southern Pines,
Moore County, North Carolina 28387, as show n on the Tax Map of the
1
SAND HILLS
DAP 5.30.13
County of Moore as a portion of Tax Parcel No. 858107575768, (the entirety
of LESSOR’s property is referred to hereinafter as the “ Property” ), together
w ith a Three Hundred Thirty Six (336) square foot parcel of property for the
installation of LESSEE' s equipment building, w aveguide bridge and other
equipment, together w ith the non-exclusive right for ingress and egress, seven
(7) days a w eek tw enty-four (24) hours a day, on foot or motor vehicle,
including trucks, and for the installation and maintenance of utility w ires,
poles, cables, conduits, and pipes over, under, or along a general easement for
a right-of-w ay extending from the nearest public right-of-w ay, Ridge Street, to
the demised premises. The tow er space, demised premises and right-of-w ay
are hereinafter collectively referred to as the “ Premises” . The Premises are
described in Exhibit A attached hereto and made a part hereof.
3.
The Commencement Date of the Agreement,
Memorandum, is October 13, 2013.
4.
The terms, covenant s and provisions of the Agreement, the terms of w hich
are hereby incorporat ed by reference into this Memorandum, shall ext end to
and be binding upon the respective executors, administrators, heirs,
successors and assigns of LESSOR and LESSEE.
2
of
w hich
this
is
a
SAND HILLS
DAP 5.30.13
IN WITNESS WHEREOF, hereunto and to a duplicate hereof, LESSOR and
LESSEE have caused this Memorandum t o be duly execut ed on the date first
w ritten hereinabove.
LESSOR:
_________________________
WITNESS
BY:
ITS:
TOWN OF SOUTHERN PINES
_______________________ (SEAL)
_______________________
LESSEE:
ALLTEL
COMMUNICATIONS,
LLC D/B/A VERIZON WIRELESS
_________________________
WITNESS
BY:
3
_______________________ (SEAL)
Hans F. Leutenegger
Area Vice President Netw ork
SAND HILLS
DAP 5.30.13
STATE OF NORTH CAROLINA )
)
COUNTY OF MOORE
)
ACKNOWLEDGEMENT
I, ___________________, a Notary Public for said County and State, do hereby
certify that _________________________ personally came before me this day and
acknow ledged that he is the ___________ of TOWN OF SOUTHERN PINES, a
municipal corporation, and he, being authorized to do so, executed the foregoing
MEMORANDUM OF WATER TOWER LEASE AGREEMENT as his ow n act and deed
on behalf of TOWN OF SOUTHERN PINES, a municipal corporation.
WITNESS my hand and official Notarial Seal, this
day of
2013.
____________________________________
Notary Public
______________________
4
,
SAND HILLS
DAP 5.30.13
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
)
)
)
ACKNOWLEDGMENT
I, ___________________, a Notary Public for _______________ County and Stat e
of North Carolina, do hereby certify that HANS F. LEUTENEGGER personally came
before me this day and acknow ledged t hat he is the AREA VICE PRESIDENT
NETWORK of ALLTEL COMMUNICATIONS, LLC d/b/a Verizon Wireless, and that
he, as AREA VICE PRESIDENT NETWORK, being authorized to do so, execut ed the
foregoing MEMORANDUM OF WATER TOWER LEASE AGREEMENT on behalf of
ALLTEL COMMUNICATIONS, LLC d/b/a Verizon Wireless.
WITNESS my hand and official Notarial Seal, this
day of
2013.
___________________________________
Notary Public
______________________
5
,
SAND HILLS
DAP 5.30.13
EXHIBIT A
[WRITTEN METES AND BOUNDS AND SURVEY OF THE PREMISES
AND INGRESS/EGRESS AND UTILITY EASEMENT]
6
EXHIBIT A (1 of 3)
EXHIBIT A (2 of 3)
EXHIBIT A (3 of 3)
Prepared by and When
Recorded Return to:
Black Dot Wireless
27271 Las Ramblas, Suite 200
Mission Viejo, CA 92691
Re:
Cell Site #141-143; Cell Site Name: Southern Pines WT
Fixed Asset Number: 10040635
State: North Carolina
County: Moore
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this ____ day of ______________, 2013, by and
between Town of Southern Pines, a body Politic, having a mailing address of 125 South East Broad
Street, Southern Pines, NC 28387 (hereinafter referred to as “Landlord”) and New Cingular Wireless
PCS, LLC, a Delaware limited liability company, having a mailing address of Suite 13-F West Tower,
575 Morosgo Drive NE, Atlanta, GA 30324 (hereinafter referred to as “Tenant”).
1. Landlord and Tenant entered into a certain Structure Lease Agreement (“Agreement”) on the
_____ day of ________________, 2013, for the purpose of installing, operating and
maintaining a communications facility and other improvements. All of the foregoing are set
forth in the Agreement.
1. The initial lease term will be five (5) years (“Initial Term”) commencing on the Effective
Date of the Agreement, with one (1) successive five (5) year additional term.
2. The portion of the land being leased to Tenant (the “Premises”) is described in Exhibit 1
annexed hereto.
3. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the
Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between
the provisions of this Memorandum of Lease and the provisions of the Agreement, the
provisions of the Agreement shall control. The Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, successors, and assigns, subject to the
provisions of the Agreement.
4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or
construed as amending or modifying, any of the terms, conditions or provisions of the
Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between
the provisions of this Memorandum of Lease and the provisions of the Agreement, the
provisions of the Agreement shall control. The Agreement shall be binding upon and inure to
the benefit of the parties and their respective heirs, successors, and assigns, subject to the
provisions of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day
and year first above written.
"LANDLORD"
By:
Print Name:
Its:
Date:
"TENANT"
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
Its: Manager
By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON THE NEXT PAGE]
TENANT ACKNOWLEDGMENT
STATE OF
)
) ss:
)
COUNTY OF
On the _____ day of _______, 2013, before me personally appeared ___________________, and
acknowledged
under
oath
that
he
is
the
__________________________
of
_____________________________, the___________________________ named in the attached
instrument, and as such was authorized to execute this instrument on behalf of the
__________________________.
Notary Public:
LANDLORD ACKNOWLEDGMENT
STATE OF ________________ )
)
COUNTY OF ______________ )
SS.
I certify that I know or have satisfactory evidence that ________________________________ is
the person who appeared before me, and said person acknowledged that said person signed this
instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it
as the __________________________________ of ______________________________________, to be
the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
EXHIBIT 1
DESCRIPTION OF PREMISES
Page _____ of ______
to the Memorandum of Lease dated _____________ ___, 2013, by and between Town of Southern
Pines, a body politic, as Landlord, and, New Cingular Wireless PCS, LLC, a Delaware limited liability
company, as Tenant.
The Premises are described and/or depicted as follows:
SITE NAME: SAND HILLS
SITE NUMBER: 89408
ATTY/DATE: DAP 5-21-13
WATER TOWER LEASE AGREEMENT
This Agreement, made this
day of
, 2013 (“Effective Date”), between Town of
Southern Pines, a municipal corporation, with its principal offices at c/o Public Services Director,
140 Memorial Park Ct., Southern Pines, North Carolina 28387, hereinafter designated LESSOR
and Alltel Communications, LLC d/b/a Verizon Wireless with its principal offices at One
Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (telephone number 866862-4404), hereinafter designated LESSEE. The LESSOR and LESSEE are at times collectively
referred to hereinafter as the “Parties” or individually as the “Party”.
WITNESSETH
In consideration of the mutual covenants contained herein and intending to be legally
bound hereby, the Parties hereto agree as follows:
1.
PREMISES. LESSOR hereby leases to the LESSEE a portion of that certain
space (“the Tower Space”) on the LESSOR's water tower, hereinafter referred to as the “Tower”,
located at 475 N. Ridge Street, Southern Pines, Moore County, North Carolina, as listed in the
Moore County Tax Department as PIN No. 858107575768 (the entirety of LESSOR’s property is
referred to hereinafter as the “Property”). LESSOR warrants that as of the Effective Date of this
Agreement, it has rights to grant LESSEE a parcel of land (the “Land Space”) sufficient for the
installation of LESSEE's equipment building; together with the non-exclusive right (“the Right of
Way”) for ingress and egress, seven (7) days a week, twenty-four (24) hours a day, on foot or
motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles,
cables, conduits, and pipes over, under, or along an existing paved drive extending from the
nearest public right-of-way, Ridge Street, to a twenty (20’) foot wide right-of-way extending to
the Land Space; and together with any further rights of way (the “Further Rights of Way”) over
and through the Property between the Land Space and the Tower Space for the installation and
maintenance of utility wires, poles, cables, conduits, and pipes. The Tower Space, Land Space,
Right of Way and Further Rights of Way, if any, are substantially described in Exhibit "A",
attached hereto and made a part hereof demised premises and are collectively referred to
hereinafter as the "Premises". LESSOR warrants that the Land Space, the Right of Way, and the
Further Rights of Way shall remain in effect throughout the Term of this Agreement unless and
until such time that LESSOR has to exercise eminent domain in order to grant such rights to
LESSEE.
In the event any public utility is unable to use the Right of Way or Further Rights of Way,
the LESSOR hereby agrees to grant an additional right-of-way(s) either to the LESSEE or to the
public utility at no cost to the LESSEE. LESSOR warrants that as of the Effective Date of this
Agreement, it has rights to grant an additional right-of-way either to the LESSEE or to the public
utility at no cost to the LESSEE. LESSOR agrees to grant such additional right-of-way, if
necessary, throughout the Term of this Agreement unless and until such time that LESSOR has to
exercise eminent domain in order to grant such additional right-of-way.
LESSOR hereby grants permission to LESSEE to install, maintain and operate the radio
communications equipment, antennas and appurtenances described in Exhibit "B" attached hereto.
LESSEE reserves the right to replace the aforementioned equipment with similar and
comparable equipment provided said replacement does not increase tower loading of said Tower.
2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the Property
and Premises, and said survey shall then become Exhibit "C" which shall be attached hereto and
made a part hereof, and shall control in the event of boundary and access discrepancies between it
and Exhibit "A". Cost for such work shall be borne by the LESSEE.
3.
TERM; RENTAL; ELECTRICAL.
a.
This Agreement shall be effective as of the date of execution by both
Parties, provided, however, the initial term shall be for five (5) years and shall commence on the
Commencement Date (as hereinafter defined) at which time rental payments shall commence and
be due at a total annual rental of Forty Six Thousand Two Hundred and No/100 Dollars
($46,200.00) to be paid in equal monthly installments on the first day of the month, in advance,
to Finance Director, c/o Town of Southern Pines, P.O. Box 870, Southern Pines, NC 28388, or to
such other person, firm or place as LESSOR may, from time to time, designate in writing at least
thirty (30) days in advance of any rental payment date by notice given in accordance with
Paragraph 25 below. The Agreement shall commence on the thirteenth (13th) day of October,
2013 (“Commencement Date”).
LESSOR and LESSEE acknowledge and agree that initial
rental payment(s) shall not actually be sent by LESSEE until thirty (30) days after the
Commencement Date. By way of illustration of the preceding sentence, if the Commencement
Date is January 1, LESSEE shall send to the LESSOR the rental payments for January 1 and
February 1 by February 1.
Upon agreement of the Parties, LESSEE may pay rent by electronic funds transfer and in
such event, LESSOR agrees to provide to LESSEE bank routing information for such purpose
upon request of LESSEE.
b.
LESSOR hereby agrees to provide to LESSEE certain documentation (the
“Rental Documentation”) evidencing LESSOR’s interest in, and right to receive payments under,
this Agreement, including without limitation: (i) documentation, acceptable to LESSEE in
LESSEE’s reasonable discretion, evidencing LESSOR’s good and sufficient title to and/or
interest in the Property and right to receive rental payments and other benefits hereunder; (ii) a
complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form
acceptable to LESSEE, for any party to whom rental payments are to be made pursuant to this
Agreement. From time to time during the Term of this Agreement and within thirty (30) days of
a written request from LESSEE, LESSOR agrees to provide updated Rental Documentation in a
form reasonably acceptable to LESSEE. The Rental Documentation shall be provided to
LESSEE in accordance with the provisions of and at the address given in Paragraph 25.
Delivery of Rental Documentation to LESSEE shall be a prerequisite for the payment of any rent
by LESSEE and notwithstanding anything to the contrary herein, LESSEE shall have no
2
obligation to make any rental payments until Rental Documentation has been supplied to
LESSEE as provided herein.
Within fifteen (15) days of obtaining an interest in the Property or this Agreement, any
assignee(s), transferee(s) or other successor(s) in interest of LESSOR shall provide to LESSEE
Rental Documentation in the manner set forth in the preceding paragraph. From time to time
during the Term of this Agreement and within thirty (30) days of a written request from
LESSEE, any assignee(s) or transferee(s) of LESSOR agrees to provide updated Rental
Documentation in a form reasonably acceptable to LESSEE. Delivery of Rental Documentation
to LESSEE by any assignee(s), transferee(s) or other successor(s) in interest of LESSOR shall be
a prerequisite for the payment of any rent by LESSEE to such party and notwithstanding
anything to the contrary herein, LESSEE shall have no obligation to make any rental payments to
any assignee(s), transferee(s) or other successor(s) in interest of LESSOR until Rental
Documentation has been supplied to LESSEE as provided herein.
c.
LESSOR warrants that as of the Effective Date of this Agreement, it shall
provide electrical service and telephone service access within the Premises. LESSOR warrants
that it will continue to provide these services throughout the Term of this Agreement unless and
until such time that it has to exercise eminent domain in order to provide such services. If
permitted by the local utility company servicing the Premises, LESSEE shall furnish and install
an electrical meter at the Premises for the measurement of electrical power used by LESSEE's
installation. In the alternative, if permitted by the local utility company servicing the Premises,
LESSEE shall furnish and install an electrical sub-meter at the Premises for the measurement of
electrical power used by LESSEE's installation. In the event such sub-meter is installed, the
LESSEE shall pay the utility directly for its power consumption, if billed by the utility, and if not
billed by the utility, then the LESSEE shall pay the LESSOR thirty (30) days after receipt of an
invoice from LESSOR indicating the usage amount based upon LESSOR’s reading of the submeter. All invoices for power consumption shall be sent by LESSOR to LESSEE at 180
Washington Valley Road, Basking Ridge, New Jersey 07921. LESSEE shall be permitted at any
time during the Term, to install, maintain and/or provide access to and use of, as necessary
(during any power interruption at the Premises), a temporary power source, and all related
equipment and appurtenances within the Premises, or elsewhere on the Property in such locations
as reasonably approved by LESSOR. LESSEE shall have the right to install conduits connecting
the temporary power source and related appurtenances to the Premises.
4.
EXTENSIONS. This Agreement shall automatically be extended for one (1)
additional five (5) year term unless LESSEE terminates it at the end of the then current term by
giving LESSOR written notice of the intent to terminate at least six (6) months prior to the end of
the current term.
5. EXTENSION RENTALS. The annual rental for the extension term shall be
increased to Fifty Thousand Eight Hundred Twenty and no/100ths Dollars ($50,820.00). The
initial term and all extensions shall be collectively referred to herein as the "Term".
6.
INTENTIONALLY DELETED.
3
7.
TAXES. LESSEE shall have the responsibility to pay any personal property,
real estate taxes, assessments, or charges owed on the Property which LESSOR demonstrates is
the result of LESSEE’s use of the Premises and/or the installation, maintenance, and operation
of the LESSEE’s improvements, and any sales tax imposed on the rent (except to the extent that
LESSEE is or may become exempt from the payment of sales tax in the jurisdiction in which
the Property is located), including any increase in real estate taxes at the Property which
LESSOR demonstrates arises from the LESSEE’s improvements and/or LESSEE’s use of the
Premises. LESSOR and LESSEE shall each be responsible for the payment of any taxes, levies,
assessments and other charges imposed including franchise and similar taxes imposed upon the
business conducted by LESSOR or LESSEE at the Property. Notwithstanding the foregoing,
LESSEE shall not have the obligation to pay any tax, assessment, or charge that LESSEE is
disputing in good faith in appropriate proceedings prior to a final determination that such tax is
properly assessed provided that no lien attaches to the Property. Nothing in this Paragraph shall
be construed as making LESSEE liable for any portion of LESSOR’s income taxes in
connection with any Property or otherwise. Except as set forth in this Paragraph, LESSOR shall
have the responsibility to pay any personal property, real estate taxes, assessments, or charges
owed on the Property and shall do so prior to the imposition of any lien on the Property.
LESSEE shall have the right, at its sole option and at its sole cost and expense, to appeal,
challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or
partly responsible for payment. LESSOR shall reasonably cooperate with LESSEE at LESSEE’s
expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth in the
preceding sentence, including but not limited to, executing any consent, appeal or other similar
document. In the event that as a result of any appeal or challenge by LESSEE, there is a
reduction, credit or repayment received by the LESSOR for any taxes previously paid by
LESSEE, LESSOR agrees to promptly reimburse to LESSEE the amount of said reduction,
credit or repayment. In the event that LESSEE does not have the standing rights to pursue a
good faith and reasonable dispute of any taxes under this paragraph, LESSOR will pursue such
dispute at LESSEE’s sole cost and expense upon written request of LESSEE.
8.
USE; GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the
purpose of constructing, maintaining, repairing and operating a communications facility and uses
incidental thereto. All improvements, equipment, antennas and conduits shall be at LESSEE's
expense and their installation shall be at the discretion and option of LESSEE. LESSEE shall
have the right to replace, repair, add or otherwise modify its utilities, equipment, antennas and/or
conduits or any portion thereof and the frequencies over which the equipment operates, whether
the equipment, antennas, conduits or frequencies are specified or not on any exhibit attached
hereto, during the Term. It is understood and agreed that LESSEE's ability to use the Premises is
contingent upon its obtaining after the execution date of this Agreement all of the certificates,
permits and other approvals (collectively the "Governmental Approvals") that may be required
by any Federal, State or Local authorities as well as satisfactory soil boring tests and structural
analysis which will permit LESSEE use of the Premises as set forth above. LESSOR shall
cooperate with LESSEE in its effort to obtain such approvals and shall take no action which
would adversely affect the status of the Property with respect to the proposed use thereof by
LESSEE. In the event that (i) any of such applications for such Governmental Approvals should
be finally rejected; (ii) any Governmental Approval issued to LESSEE is canceled, expires,
4
lapses, or is otherwise withdrawn or terminated by governmental authority; (iii) LESSEE
determines that such Governmental Approvals may not be obtained in a timely manner; (iv)
LESSEE determines that any soil boring tests or structural analysis is unsatisfactory; (v)
LESSEE determines that the Premises is no longer technically or structurally compatible for its
use, or (vi) LESSEE, in its sole discretion, determines that the use of Premises is obsolete or
unnecessary, LESSEE shall have the right to terminate this Agreement. Notice of LESSEE's
exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return
receipt requested, and shall be effective upon the mailing of such notice by LESSEE, or upon
such later date as designated by LESSEE. All rentals paid to said termination date shall be
retained by LESSOR. Upon such termination, this Agreement shall be of no further force or
effect except to the extent of the representations, warranties and indemnities made by each Party
to the other hereunder. Otherwise, the LESSEE shall have no further obligations for the payment
of rent to LESSOR.
9.
INDEMNIFICATION. Subject to Paragraph 10 below, each Party shall
indemnify and hold the other harmless against any claim of liability or loss from personal injury
or property damage resulting from or arising out of the negligence or willful misconduct of the
indemnifying Party, its employees, contractors or agents, except to the extent such claims or
damages may be due to or caused by the negligence or willful misconduct of the other Party, or
its employees, contractors or agents.
10.
INSURANCE.
a.
The Parties hereby waive and release any and all rights of action for
negligence against the other which may hereafter arise on account of damage to the Premises or
to the Property, resulting from any fire, or other casualty of the kind covered by standard fire
insurance policies with extended coverage, regardless of whether or not, or in what amounts,
such insurance is now or hereafter carried by the Parties, or either of them. These waivers and
releases shall apply between the Parties and they shall also apply to any claims under or through
either Party as a result of any asserted right of subrogation. All such policies of insurance
obtained by either Party concerning the Premises or the Property shall waive the insurer's right of
subrogation against the other Party.
b.
LESSOR and LESSEE each agree that at its own cost and expense, each
will maintain commercial general liability insurance with limits not less than $1,000,000 for
injury to or death of one or more persons in any one occurrence and $500,000 for damage or
destruction to property in any one occurrence. LESSOR and LESSEE each agree that it will
include the other Party as an additional insured.
c.
In addition, LESSOR shall obtain and keep in force during the Term a
policy or policies insuring against loss or damage to the Tower at full replacement cost, as the
same shall exist from time to time without a coinsurance feature. LESSOR’s policy or policies
shall insure against all risks of direct physical loss or damage (except the perils of flood and
earthquake unless required by a lender or included in the base premium), including coverage for
any additional costs resulting from debris removal and reasonable amounts of coverage for the
enforcement of any ordinance or law regulating the reconstruction or replacement of any
undamaged sections of the Tower required to be demolished or removed by reason of the
5
enforcement of any building, zoning, safety or land use laws as the result of a covered loss, but
not including plate glass insurance.
11. LIMITATION OF LIABILITY.
Except for indemnification pursuant to
paragraphs 9 and 31, neither Party shall be liable to the other, or any of their respective agents,
representatives, employees for any lost revenue, lost profits, loss of technology, rights or
services, incidental, punitive, indirect, special or consequential damages, loss of data, or
interruption or loss of use of service, even if advised of the possibility of such damages,
whether under theory of contract, tort (including negligence), strict liability or otherwise.
12. ANNUAL TERMINATION. Notwithstanding anything to the contrary contained
herein, provided LESSEE is not in default hereunder beyond applicable notice and cure
periods, LESSEE shall have the right to terminate this Agreement upon the annual anniversary
of the Commencement Date provided that three (3) months prior notice is given to LESSOR.
13. ACCESS TO TOWER.
LESSOR agrees the LESSEE shall have free access
to the Tower at all times for the purpose of installing and maintaining the said equipment.
LESSOR shall furnish LESSEE with necessary means of access for the purpose of ingress and
egress to this site and Tower location. It is agreed, however, that only authorized engineers,
employees or properly authorized contractors of LESSEE or persons under their direct
supervision will be permitted to enter said premises.
14. TOWER COMPLIANCE. LESSOR covenants that it will maintain the structural
integrity of the Tower as required by all Laws (as defined in Paragraph 35 below). The
LESSOR shall also comply with all rules and regulations enforced by the Federal
Communications Commission, if any, with regard to the lighting, marking and painting of
towers. If the LESSOR fails to maintain the structural integrity of the Tower, the LESSEE
may take steps to ensure the structural integrity of the Tower and the costs thereof shall be
payable to the LESSEE by the LESSOR on demand together with interest thereon from the
date of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate
permitted by applicable Laws. If the LESSOR does not make payment to the LESSEE within
ten (10) days after such demand, the LESSEE shall have the right to deduct the costs of the
work from the succeeding monthly rental amounts normally due from the LESSEE to the
LESSOR.
No materials may be used in the installation of the antennas or transmission lines that will
cause corrosion or rust or deterioration of the Tower structure or its appurtenances.
All antenna(s) on the Tower must be identified by a marking fastened securely to its
bracket on the Tower and all transmission lines are to be tagged at the conduit opening where it
enters any user's equipment space.
Not later than fifteen (15) days following the execution of this Agreement, LESSOR shall
supply to LESSEE copies of all structural analysis reports that have done with respect to the Tower
and throughout the Term, LESSOR shall supply to LESSEE copies of all structural analysis reports
that are done with respect to the Tower promptly after the completion of the same.
6
Upon request of the LESSOR, LESSEE agrees to relocate its equipment on a temporary
basis to another location on the Property, hereinafter referred to as the “Temporary Relocation,” for
the purpose of LESSOR performing maintenance, repair or similar work at the Property or on the
Tower provided:
a.
The Temporary Relocation is fully compatible for LESSEE’s use, in LESSEE’s
reasonable determination, or, in the alternative, LESSEE is permitted to bring onto
LESSOR’S Property, at a location acceptable to LESSEE, a temporary
communication facility (i.e. “Cell on Wheels”) during the time that LESSOR is
performing the required maintenance;
b. LESSOR gives LESSEE at least one hundred twenty (120) days written notice prior
to requiring LESSEE to relocate;
c.
LESSEE’s use at the Premises is not interrupted or diminished during the relocation
due to LESSOR’s acts or omissions; and
d. Immediately following the completion of any maintenance, repair or similar work by
LESSOR, LESSEE is permitted to return to its original location from the temporary
location.
e.
Rent shall be fully abated for the duration of the Temporary Relocation.
15. INTERFERENCE. LESSEE agrees to install equipment of the type and
frequency which will not cause harmful interference which is measurable in accordance with
then existing industry standards to any equipment of LESSOR or other licensed wireless
communications providers on the Property which existed on the Property prior to the date this
Agreement is executed by the Parties. In the event any after-installed LESSEE's equipment
causes such interference, and after LESSOR has notified LESSEE in writing of such
interference, LESSEE will take all commercially reasonable steps necessary to correct and
eliminate the interference, including but not limited to, at LESSEE’s option, powering down
such equipment and later powering up such equipment for intermittent testing. In no event will
LESSOR be entitled to terminate this Agreement or relocate the equipment as long as LESSEE
is making a good faith effort to remedy the interference issue. LESSOR agrees that LESSOR
and/or any other tenants, occupants, or users of the Property who currently have or in the future
take possession of all or a part of the Property will be permitted to install only such equipment
that is of the type and frequency which will not cause harmful interference which is measurable
in accordance with then existing industry standards to the then existing equipment of LESSEE.
The Parties acknowledge that there will not be an adequate remedy at law for noncompliance
with the provisions of this Paragraph and therefore, either Party shall have the right to
equitable remedies, such as, without limitation, injunctive relief and specific performance.
16. REMOVAL AT END OF TERM. LESSEE shall, upon expiration of the Term, or
within ninety (90) days after any earlier termination of the Agreement, remove its building(s),
antenna(s), equipment, conduits, fixtures and all personal property and restore the Premises to
its original condition, reasonable wear and tear and casualty damage excepted. LESSOR
agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of
7
LESSEE shall remain the personal property of LESSEE and LESSEE shall have the right to
remove the same at any time during the Term, whether or not said items are considered fixtures
and attachments to real property under applicable Laws. If such time for removal causes
LESSEE to remain on the Premises after termination of this Agreement, LESSEE shall pay
rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a
longer payment term, until such time as the removal of the building, antenna structure, fixtures
and all personal property are completed.
17. HOLDOVER. LESSEE has no right to retain possession of the Premises or any
part thereof beyond the expiration of that removal period set forth in Paragraph 16 herein,
unless the Parties are negotiating a new lease or lease extension in good faith. In the event that
the Parties are not in the process of negotiating a new lease or lease extension in good faith,
LESSEE holds over in violation of Paragraph 16 and this Paragraph 17, then the rent then in
effect payable from and after the time of the expiration or earlier removal period set forth in
Paragraph 16 shall be equal to the rent applicable during the month immediately preceding
such expiration or earlier termination.
18. RIGHT OF FIRST REFUSAL. If LESSOR elects, during the Term to grant to a
third party by easement or other legal instrument an interest in and to that portion of the Tower
and or Property occupied by LESSEE, or a larger portion thereof, for the purpose of operating
and maintaining communications facilities or the management thereof, with or without an
assignment of this Agreement to such third party, LESSEE shall have the right of first refusal
to meet any bona fide offer of sale or transfer on the same terms and conditions of such offer.
If LESSEE fails to meet such bona fide offer within thirty (30) days after written notice thereof
from LESSOR, LESSOR may sell or grant the easement or interest in the Property or portion
thereof to such third person in accordance with the terms and conditions of such third party
offer.
19. RIGHTS UPON SALE. Should LESSOR, at any time during the Term decide to
grant to a third party by easement or other legal instrument an interest in and to that portion of
the Tower and or Property occupied by LESSEE, or a larger portion thereof, for the purpose of
operating and maintaining communications facilities or the management thereof, such sale or
grant of an easement or interest therein shall be under and subject to this Agreement and any
such purchaser or transferee shall recognize LESSEE's rights hereunder under the terms of this
Agreement. To the extent that LESSOR grants to a third party by easement or other legal
instrument an interest in and to that portion of the Tower and/or Property occupied by LESSEE
for the purpose of operating and maintaining communications facilities or the management
thereof and in conjunction therewith, assigns this Agreement to said third party, LESSOR shall
not be released from its obligations to LESSEE under this Agreement, and LESSEE shall have
the right to look to LESSOR and the third party for the full performance of this Agreement.
20. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and
performing the covenants herein, shall peaceably and quietly have, hold and enjoy its interests
in the Premises.
21. TITLE. LESSOR represents and warrants to LESSEE as of the execution date of
this Agreement, and covenants during the Term that LESSOR is seized of good and sufficient
8
title and interest to the Property and has full authority to enter into and execute this Agreement.
LESSOR further covenants during the Term that there are no liens, judgments or impediments
of title on the Property, or affecting LESSOR's title to the same and that there are no
covenants, easements or restrictions which prevent or adversely affect the use or occupancy of
the Premises by LESSEE as set forth above.
22. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between LESSOR and LESSEE and that no verbal or
oral agreements, promises or understandings shall be binding upon either LESSOR or LESSEE
in any dispute, controversy or proceeding at law, and any addition, variation or modification to
this Agreement shall be void and ineffective unless made in writing signed by the Parties or in
a written acknowledgment in the case provided in Paragraph 3. In the event any provision of
the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity
and enforceability of the remaining provisions of this Agreement. The failure of either Party to
insist upon strict performance of any of the terms or conditions of this Agreement or to
exercise any of its rights under the Agreement shall not waive such rights and such Party shall
have the right to enforce such rights at any time and take such action as may be lawful and
authorized under this Agreement, in law or in equity.
23. GOVERNING LAW. This Agreement and the performance thereof shall be
governed, interpreted, construed and regulated by the Laws of the State in which the Property
is located.
24. ASSIGNMENT. This Agreement may be sold, assigned or transferred by the
LESSEE without any approval or consent of the LESSOR to the LESSEE's principal, affiliates,
subsidiaries of its principal or to any entity which acquires all or substantially all of LESSEE's
assets in the market defined by the Federal Communications Commission in which the
Property is located by reason of a merger, acquisition or other business reorganization. As to
other parties, this Agreement may not be sold, assigned or transferred without the written consent
of the LESSOR, which such consent will not be unreasonably withheld, delayed or conditioned.
No change of stock ownership, partnership interest or control of LESSEE or transfer upon
partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder.
25. NOTICES. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, return receipt requested or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to
the addressee by the end of the next business day following the courier's receipt from the
sender, addressed as follows (or any other address that the Party to be notified may have
designated to the sender by like notice):
LESSOR:
Town of Southern Pines,
c/o Public Services Director
140 Memorial Park Ct.
Southern Pines, North Carolina 28387
9
LESSEE:
Alltel Communications, LLC
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing.
26. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal
representative, successors and assigns of the Parties hereto.
27. SUBORDINATION AND NON-DISTURBANCE. LESSOR shall obtain not
later than fifteen (15) days following the execution of this Agreement, a Non-Disturbance
Agreement, as defined below, from its existing mortgagee(s), ground lessors and master
lessors, if any, of the Property. At LESSOR's option, this Agreement shall be subordinate to
any future master lease, ground lease, mortgage, deed of trust or other security interest (a
“Mortgage”) by LESSOR which from time to time may encumber all or part of the Property,
Tower or right-of-way; provided, however, as a condition precedent to LESSEE being required
to subordinate its interest in this Agreement to any future Mortgage covering the Tower or
Property, LESSOR shall obtain for LESSEE's benefit a non-disturbance and attornment
agreement for LESSEE's benefit in the form reasonably satisfactory to LESSEE, and
containing the terms described below (the “Non-Disturbance Agreement”), and shall recognize
LESSEE's right to remain in occupancy of and have access to the Premises as long as LESSEE
is not in default of this Agreement beyond applicable notice and cure periods. The
Non-Disturbance Agreement shall include the encumbering party's (“Lender's”) agreement
that, if Lender or its successor-in-interest or any purchaser of Lender’s or its successor’s
interest (a “Purchaser”) acquires an ownership interest in the Tower or Property, Lender or
such successor-in-interest or Purchaser will (1) honor all of the terms of the Agreement, (2)
fulfill LESSOR's obligations under the Agreement, and (3) promptly cure all of the
then-existing LESSOR defaults under the Agreement. Such Non-Disturbance Agreement must
be binding on all of Lender's participants in the subject loan (if any) and on all successors and
assigns of Lender and/or its participants and on all Purchasers. In return for such
Non-Disturbance Agreement, LESSEE will execute an agreement for Lender's benefit in which
LESSEE (1) confirms that the Agreement is subordinate to the Mortgage or other real property
interest in favor of Lender, (2) agrees to attorn to Lender if Lender becomes the owner of the
Tower or Property and (3) agrees to accept a cure by Lender of any of LESSOR's defaults,
provided such cure is completed within the deadline applicable to LESSOR. In the event
LESSOR defaults in the payment and/or other performance of any mortgage or other real
property interest encumbering the Property, LESSEE, may, at its sole option and without
obligation, cure or correct LESSOR's default and upon doing so, LESSEE shall be subrogated
to any and all rights, titles, liens and equities of the holders of such mortgage or other real
property interest and LESSEE shall be entitled to deduct and setoff against all rents that may
otherwise become due under this Agreement the sums paid by LESSEE to cure or correct such
defaults.
10
28. RECORDING. LESSOR agrees to execute a Memorandum of this Agreement
which LESSEE may record with the appropriate recording officer. The date set forth in the
Memorandum of Lease is for recording purposes only and bears no reference to
commencement of either the Term or rent payments.
29. DEFAULT.
a.
In the event there is a breach by LESSEE with respect to any of the
provisions of this Agreement or its obligations under it, including the payment of rent, LESSOR
shall give LESSEE written notice of such breach. After receipt of such written notice, LESSEE
shall have fifteen (15) days in which to cure any monetary breach and thirty (30) days in which
to cure any non-monetary breach, provided LESSEE shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires
more than thirty (30) days and LESSEE commences the cure within the thirty (30) day period
and thereafter continuously and diligently pursues the cure to completion. LESSOR may not
maintain any action or effect any remedies for default against LESSEE unless and until LESSEE
has failed to cure the breach within the time periods provided in this Paragraph.
b.
In the event there is a breach by LESSOR with respect to any of the
provisions of this Agreement or its obligations under it, LESSEE shall give LESSOR written
notice of such breach. After receipt of such written notice, LESSOR shall have thirty (30) days
in which to cure any such breach, provided LESSOR shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires
more than thirty (30) days and LESSOR commences the cure within the thirty (30) day period
and thereafter continuously and diligently pursues the cure to completion. LESSEE may not
maintain any action or effect any remedies for default against LESSOR unless and until
LESSOR has failed to cure the breach within the time periods provided in this Paragraph.
Notwithstanding the foregoing to the contrary, it shall be a default under this Agreement if
LESSOR fails, within five (5) days after receipt of written notice of such breach, to perform an
obligation required to be performed by LESSOR if the failure to perform such an obligation
interferes with LESSEE’s ability to conduct its business on the Property; provided, however, that
if the nature of LESSOR’s obligation is such that more than five (5) days after such notice is
reasonably required for its performance, then it shall not be a default under this Agreement if
performance is commenced within such five (5) day period and thereafter diligently pursued to
completion.
30.
REMEDIES. Upon a default, the non-defaulting Party may at its option (but
without obligation to do so), perform the defaulting Party’s duty or obligation on the defaulting
Party’s behalf, including but not limited to the obtaining of reasonably required insurance
policies. The costs and expenses of any such performance by the non-defaulting Party shall be
due and payable by the defaulting Party upon invoice therefor. In the event of a default by either
Party with respect to a material provision of this Agreement, without limiting the non-defaulting
Party in the exercise of any right or remedy which the non-defaulting Party may have by reason
of such default, the non-defaulting Party may terminate the Agreement and/or pursue any remedy
now or hereafter available to the non-defaulting Party under the Laws or judicial decisions of the
state in which the Premises are located; provided, however, LESSOR shall use reasonable efforts
to mitigate its damages in connection with a default by LESSEE. If LESSEE so performs any of
11
LESSOR’s obligations hereunder, the full amount of the reasonable and actual cost and expense
incurred by LESSEE shall immediately be owing by LESSOR to LESSEE, and LESSOR shall
pay to LESSEE upon demand the full undisputed amount thereof with interest thereon from the
date of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate
permitted by applicable Laws. Notwithstanding the foregoing, if LESSOR does not pay
LESSEE the full undisputed amount within thirty (30) days of its receipt of an invoice setting
forth the amount due from LESSOR, LESSEE may offset the full undisputed amount, including
all accrued interest, due against all fees due and owing to LESSOR until the full undisputed
amount, including all accrued interest, is fully reimbursed to LESSEE.
31. ENVIRONMENTAL.
a.
LESSOR will be responsible for all obligations of compliance with any
and all environmental and industrial hygiene laws, including any regulations, guidelines,
standards, or policies of any governmental authorities regulating or imposing standards of
liability or standards of conduct with regard to any environmental or industrial hygiene
conditions or concerns as may now or at any time hereafter be in effect, that are or were in any
way related to activity now conducted in, on, or in any way related to the Tower or Property,
unless such conditions or concerns are caused by the specific activities of LESSEE in the
Premises.
b.
LESSOR shall hold LESSEE harmless and indemnify LESSEE from and
assume all duties, responsibility and liability at LESSOR's sole cost and expense, for all duties,
responsibilities, and liability (for payment of penalties, sanctions, forfeitures, losses, costs, or
damages) and for responding to any action, notice, claim, order, summons, citation, directive,
litigation, investigation or proceeding which is in any way related to: a) failure to comply with
any environmental or industrial hygiene law, including without limitation any regulations,
guidelines, standards, or policies of any governmental authorities regulating or imposing
standards of liability or standards of conduct with regard to any environmental or industrial
hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such noncompliance results from conditions caused by LESSEE; and b) any environmental or industrial
hygiene conditions arising out of or in any way related to the condition of the Tower or Property
or activities conducted thereon, unless such environmental conditions are caused by LESSEE.
32. CASUALTY. In the event of damage by fire or other casualty to the Tower or
Premises that cannot reasonably be expected to be repaired within forty-five (45) days
following same or, if the Property is damaged by fire or other casualty so that such damage
may reasonably be expected to disrupt LESSEE's operations at the Premises for more than
forty-five (45) days, then LESSEE may, at any time following such fire or other casualty,
provided LESSOR has not completed the restoration required to permit LESSEE to resume its
operation at the Premises, terminate this Agreement upon fifteen (15) days prior written notice
to LESSOR. Any such notice of termination shall cause this Agreement to expire with the
same force and effect as though the date set forth in such notice were the date originally set as
the expiration date of this Agreement and the Parties shall make an appropriate adjustment, as
of such termination date, with respect to payments due to the other under this Agreement.
Notwithstanding the foregoing, the rent shall abate during the period of repair following such
12
fire or other casualty in proportion to the degree to which LESSEE’s use of the Premises is
impaired.
33. CONDEMNATION. In the event of any condemnation of all or any portion of the
Property, this Agreement shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever occurs first. If as a result of a partial
condemnation of the Premises or Tower, LESSEE, in LESSEE’s sole discretion, is unable to
use the Premises for the purposes intended hereunder, or if such condemnation may reasonably
be expected to disrupt LESSEE's operations at the Premises for more than forty-five (45) days,
LESSEE may, at LESSEE’s option, to be exercised in writing within fifteen (15) days after
LESSOR shall have given LESSEE written notice of such taking (or in the absence of such
notice, within fifteen (15) days after the condemning authority shall have taken possession)
terminate this Agreement as of the date the condemning authority takes such possession.
LESSEE may on its own behalf make a claim in any condemnation proceeding involving the
Premises for losses related to the equipment, conduits, fixtures, its relocation costs and its
damages and losses (but not for the loss of its leasehold interest). Any such notice of
termination shall cause this Agreement to expire with the same force and effect as though the
date set forth in such notice were the date originally set as the expiration date of this
Agreement and the Parties shall make an appropriate adjustment as of such termination date
with respect to payments due to the other under this Agreement. If LESSEE does not terminate
this Agreement in accordance with the foregoing, this Agreement shall remain in full force and
effect as to the portion of the Premises remaining, except that the rent shall be reduced in the
same proportion as the rentable area of the Premises taken bears to the total rentable area of the
Premises. In the event that this Agreement is not terminated by reason of such condemnation,
LESSOR shall promptly repair any damage to the Premises caused by such condemning
authority.
34. SUBMISSION OF AGREEMENT/PARTIAL INVALIDITY/AUTHORITY. The
submission of this Agreement for examination does not constitute an offer to lease the
Premises and this Agreement becomes effective only upon the full execution of this Agreement
by the Parties. If any provision herein is invalid, it shall be considered deleted from this
Agreement and shall not invalidate the remaining provisions of this Agreement. Each of the
Parties hereto warrants to the other that the person or persons executing this Agreement on
behalf of such Party has the full right, power and authority to enter into and execute this
Agreement on such Party's behalf and that no consent from any other person or entity is
necessary as a condition precedent to the legal effect of this Agreement.
35. APPLICABLE LAWS. During the Term, LESSOR shall maintain the Property
and all structural elements of the Premises in compliance with all applicable laws, rules,
regulations, ordinances, directives, covenants, easements, zoning and land use regulations, and
restrictions of record, permits, building codes, and the requirements of any applicable fire
insurance underwriter or rating bureau, now in effect or which may hereafter come into effect
(including, without limitation, the Americans with Disabilities Act and laws regulating
hazardous substances) (collectively “Laws”). LESSEE shall, in respect to the condition of the
Premises and at LESSEE’s sole cost and expense, comply with (a) all Laws relating solely to
LESSEE’s specific and unique nature of use of the Premises (other than general office use);
13
and (b) all building codes requiring modifications to the Premises due to the improvements
being made by LESSEE in the Premises.
36. SURVIVAL. The provisions of the Agreement relating to indemnification from
one Party to the other Party shall survive any termination or expiration of this Agreement.
Additionally, any provisions of this Agreement which require performance subsequent to the
termination or expiration of this Agreement shall also survive such termination or expiration.
37. CAPTIONS. The captions contained in this Agreement are inserted for
convenience only and are not intended to be part of the Agreement. They shall not affect or be
utilized in the construction or interpretation of the Agreement.
38. PRIOR TERMINATED AGREEMENT. LESSOR and LESSEE agree that this
Agreement replaces the agreement between LESSOR and LESSEE dated September 15, 2003
referenced by LESSEE as Contract #NG 89408 (“Terminated Agreement”). LESSOR and
LESSEE acknowledge that notwithstanding the termination of the Terminated Agreement and
the commencement of this Agreement, LESSEE may continue to make, and the LESSOR may
continue to receive, rental and other payments pursuant to the Terminated Agreement. In such
event, any rental or other payments made pursuant to the Terminated Agreement after its
termination shall be applied and credited against any rentals or other payments due under this
Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
14
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their
respective seals the day and year first above written.
LESSOR:
TOWN OF SOUTHERN PINES
By:
_____(SEAL)
Its:___________________________
Date: _________________________
WITNESS
LESSEE:
ALLTEL COMMUNICATIONS, LLC
D/B/A VERIZON WIRELESS
By:
(SEAL)
Name: Hans F. Leutenegger
Its: Area Vice President Network
Date:
___
WITNESS
15
EXHIBIT A
Legal Description
See Attached.
16
EXHIBIT B
Equipment
Twelve (12) antennas
Twelve (12) coax lines
Six (6) diplexers
Together with Tenant’s equipment shelter and related ground equipment located within the
Land Space.
EXHIBIT C
See Attached.
18
EXHIBIT C (1 of 3)
EXHIBIT C (2 of 3)
EXHIBIT C (3 of 3)
SOUTHERN PINES FIRE DEPARTMENT
SERVING THE COMMUNITY SINCE 1898
MEMORANDUM
To:
Reagan Parsons, Town Manager
From:
Hampton Williams, Fire Chief
Date:
August 1, 2013
Subject:
Changes to the Southern Pines Code of Ordinances
I am requesting that we change section 95.005 OPEN BURNING of our Code of Ordinances for
the purpose of including freestanding fireplaces, chimaera’s, and fire pits intended to contain and
control outdoor fires.
The changes in social activities have caused an increased number of requests for outdoor fires in
the Town’s limits. Currently outdoor fires are permitted in our outside fire district but not in
Town without a permit. The use of commercial portable fireplaces and chimaera’s has become
popular trend with the younger families who like spending time outdoors in the evenings roasting
hot dogs or marshmallows. With the increased density of housing that we are seeing in our newer
developments this change would allow the use of outdoor fireplaces without a permit and will
offer a safer means for doing so.
If you have any further questions please contact me.
§ 95.005 OPEN BURNING.
No person shall burn or cause to be burned outside of a building any materials, including leaves,
pinestraw, and other waste material, unless:
(A) The burning meets all applicable NC Fire Codes and NC Division of Air Quality standards; and
(B) The purpose of the burning is to eliminate the by-products of land clearing activities;
maintaining natural habitat, pest control, ceremonial, firefighter training, cooking/warmth; and
(C) The fire official in charge at the main fire station approves the burning.
Exception: for the use at a one or two-family dwelling, open burning in portable,
outdoor fireplaces, chimaera’s or a fire pit is allowed without a burning permit if done in a
container that is wholly constructed of non-combustible material, and meets the following
requirements:

Only natural firewood/commercial logs may be burned.

All fire containers must be located away from any structure or combustible material.
o Belowground fire pits and freestanding fireplaces must be located a minimum of
25 feet away from any structure or combustible material.
o Portable devices must be located a minimum of 15 feet away from any structure
or combustible material.

The fire must be constantly attended and supervised until the fire has been completely
extinguished.

A portable fire extinguisher or other approved extinguishing equipment, such as a
garden hose, must be readily available.
For clarity, a “fire pit” includes belowground pits, freestanding fireplaces, and portable devices
intended to contain and control outdoor fires.
All belowground fire pits shall be at least four inches in depth and shall be surrounded on the
outside, aboveground, by a non-combustible material such as steel, brick, or masonry. The fire
pit cannot exceed three feet in diameter, nor may the fire pile exceed two feet in height.
Fire pits may be used in accordance with the manufacturer’s specifications and these
regulations.
NOTE: In all cases the fire official in charge is authorized to order the extinguishment by the
responsible person, or the fire department, of any burning that creates or adds to a hazardous
or objectionable situation.
Agenda Item
To:
Reagan Parsons, Town Manger
Via:
Bart Nuckols, Planning Director
From:
Chris Kennedy, Planner
Subject:
AR-07-13 Arboretum Community Center, 315
Arboretum Drive, Alan Stagaard, Petitioner
Date:
August 13, 2013
AR-07-13 Arboretum Community Center, 315 Arboretum Drive, Alan Stagaard, Petitioner
On behalf of Global Properties and Development LLC, petitioner Alan Stagaard, of Stagaard &
Chao Architects PLLC., has submitted an application requesting Architectural Review approval
for the new construction of the Arboretum Community Center at 315 Arboretum Drive. The
parcel is identified as PIN 857200567020 (LRK 20071137). Per the Moore County GIS, the
property owner is Global Properties and Development LLC and the parcel is zoned RS-2
(Residential Single-Family).
Staff Comments:
•
•
•
•
•
•
•
•
•
•
•
The proposed Clubhouse and Pool Equipment Building are designed to have an
architectural style, mass, scale, height, material texture, and color that are compatible and
visually harmonious with the existing neighborhood.
The proposed buildings are 3,500 sf.
The proposed buildings are to have a building mass and height to street width ratio of
approximately 1:3.
The proposed buildings are located facing the main drive with off-street parking
provided.
The façades on all four sides are designed to have common elements while differing in
appearance from each other.
The entry of the proposed building is clearly identified by columns, walks, and landscaping.
Columns will be boxed out with painted fiber cement trim finish and stone base.
The front door is recessed to provide ample shelter from weather for residents and
visitors. Slate, 12” x 12” squares, will be used as finish floor material at the covered front
entry.
The predominant wall material will be painted fiber cement clapboard with stone accents.
There will not be any overly detailed ornaments.
Door and window trim will be painted fiber cement trim boards.
Windows and doors will be comprised of aluminum clad frames with non-reflective Low
E glass and simulated true divided window panes.
AR-07-13, Arboretum Community Center
TC 8/13/13
Page 1 of 16
•
•
•
•
•
•
•
•
•
The walls, windows, and door locations are placed to break up the building into a more
human scale.
The roofline will have roof height variations that follow the building mass. Gable roofs,
gable end windows, and decorative trim are added to break up the larger roof mass.
Roofs will be comprised of architectural fiberglass roofing shingles; roof slope will be 5
on 12. Roof slope and roof edge details of new buildings are compatible with existing
buildings in the area.
There will not be any metal used on walls and roof, except for flashing purposes.
Mechanical system equipment will be located in the side yards and screened with
landscaping.
There will be no outside storage or equipment (other than HVAC equipment).
Fencing on this project shall be 4’-0” high aluminum picket type around the swimming
pool area.
There will be a privacy fence along the front between the Clubhouse and the Pool
Equipment Building. This fence will have materials to match the siding material of the
proposed buildings, and is designed to create continuity between the Clubhouse and the
Pool Equipment Building.
Overcoming requirements or prohibition per the applicant– the proposed buildings’
overall mass is more horizontal than vertical and will be incompatible with the overall
vertical appearance that the guidelines wish to accomplish. The buildings are located in a
neighborhood that has mostly one story buildings. To comply with the “vertical”
guidelines will prevent the building from being in harmony with its surrounding
structures.
Attachments:
•
•
•
•
•
•
GIS Aerial Vicinity Maps
AR Application
Narrative
Elevations
Color Renderings
Properties Adjacent to Community Center
IN ADDITION TO Architectural Review Approval from Town Council, THE
APPLICANT SHOULD BE REMINDED THAT ALL APPLICABLE PERMITS
MUST BE OBTAINED BEFORE CONSTRUCTION AND/OR DEMOLITION CAN
BEGIN. When the applicant applies for the required permits such as zoning, grading, soil
erosion control, building, sign, etc., a set of detailed plans (including a site plan in
compliance with various Sections of the Town of Southern Pines UDO) will be necessary.
Planning staff recommend a staff consultation of the applicant’s preliminary plans to provide
comprehensive remarks by all appropriate Town departments/divisions. Such staff
consultation should “…minimize development costs, avoid misunderstanding or
misinterpretation and ensure compliance with the requirements…” per Section 50 Staff
Consultation Before Formal Application in the UDO.
TC 8/13/13
Page 2 of 16
AR-07-13 Arboretum Community Center
This map was created by the Tow n of Southern Pines Planning Department. The Town of Southern
Pines, its agents and employees make NO warranty as to the correctness or accuracy of the
information set forth on this media whether expressed or implied, in fact or in law, including without
limitation the implied warranties of merchantabilit y and fitness for a particular use. Any resale of t his
data is strictly prohibited in accordance with North Carolina General Stat ute 132-10. Grid is based on
North Carolina State Plane Coordinate System NAD 83 (f eet).
315 Arboretum Drive
TC 8/13/13
Page 3 of 16
AR-07-13 Arboretum Community Center
This map was created by the Tow n of Southern Pines Planning Department. The Town of Southern
Pines, its agents and employees make NO warranty as to the correctness or accuracy of the
information set forth on this media whether expressed or implied, in fact or in law, including without
limitation the implied warranties of merchantabilit y and fitness for a particular use. Any resale of t his
data is strictly prohibited in accordance with North Carolina General Stat ute 132-10. Grid is based on
North Carolina State Plane Coordinate System NAD 83 (f eet).
315 Arboretum Drive
TC 8/13/13
Page 4 of 16
TC 8/13/13
Page 5 of 16
11 July 2013
Re:
Arboretum Community Center
Arboretum Drive, Southern Pines, NC
Narrative Explanation of Design Conformance
Section 191
The project is located in The Arboretum Development.
The proposed Clubhouse and Pool Equipment Building are designed to have an architectural style, mass,
scale, height, material texture, and color that are compatible and visually harmonious with the existing
neighborhood, and is in keeping with the general character of the existing buildings in the surrounding
areas. Attention was given to locate the new structures to cause the least disturbance to the existing
terrain.
Section 192
A.
The following subsections describe the criteria used to help accomplish the goals stated in
Section 191 above.
B.
Building’s relationship to Town and Street:
(1)
Street continuity – the existing main private drive, Arboretum Drive, leads to Knoll Road
therefore providing connectedness to the balance of the community as well as linkages to shops and
services. Off-street parking is provided.
(2)
Building proportions – the building mass and height to street width ratio is
approximately 1:3.
C.
Building’s relationship to adjacent structures – the proposed structures are compatible with
nearby buildings in style, mass, scale, height, and materials.
(1)
Streetscapes – path of pedestrian circulation is provided via sidewalks, with accessible
ramps and in alignment with existing sidewalks.
(2)
Street continuity – the building pattern is compatible with all other buildings in the area.
D.
Building’s relationship to Site:
(1)
Building setback – new buildings are sited within all required setbacks.
(2)
People space in setbacks – continuous sidewalks provided and encourage pedestrian
circulation.
(3)
Building at street edge – buildings are placed so that the street edge is maintained with
access for pedestrians equal or greater than that for motor vehicles.
TC 8/13/13
Page 6 of 16
E.
Massing and proportion:
(1)
Vertical proportions –
(a)
Mass of building is in proportion with other buildings in the surrounding area.
(b)
Windows are taller than they are wide.
(2)
Subdivided Façade – horizontal building mass is subdivided into sections by wall offsets,
windows, doors, and trim.
(3)
Setback Rhythm – building walls are broken up with roof variations, wall offsets and, in
the front, by covered porch and stone pilasters. Setbacks from the street to each building vary.
F.
Building Height / Roof Profile:
(1)
Vertical proportions – roof slope and roof edge details of new buildings are compatible
with existing buildings in the area.
(2)
Roofline Variation – roof height variations follow the building mass. Gable roofs, gable
end windows, and decorative trim are added to break up the larger roof mass.
G.
Façade Design:
(1)
Corner building – the buildings are located facing the main drive. The façades on all
four sides are designed to have common elements while different in appearance from each other.
(2)
Façade Rhythm – pattern of openings in walls and window/door locations are placed to
break the building into a more human scale.
(3)
Façade Top/Base – vertical definition is defined by a minimal cement parged base,
predominant clapboard sided walls with generous fenestration and trim detail in the middle, and a
proportional roof at the top.
H.
Storefront/Street Façade:
(1)
Signage – one sign will be provided at the island on Arboretum Drive, near the entry
point to the facility. Size of sign will be in conformance with the requirements of the Southern Pines
UDO.
(2)
Storefront – depth of setback in the main building front is designed to create visual
interest, in addition to sheltering elements from inclement weather.
(3)
Entry – clearly identified by columns, walks, and landscaping. The front door is recessed
to provide ample shelter from weather for residents and visitors.
I.
Fenestration:
(1)
(2)
(3)
solid walls.
Window patterns – vertically proportioned windows with muntins.
Window proportions – compatible with building.
Window compositions – all exterior rooms at street level have windows to break up
J.
Overcoming requirements or prohibition – the proposed buildings’ overall mass is more
horizontal than vertical and will be incompatible with the overall vertical appearance that the guidelines
wish to accomplish. The buildings are located in a neighborhood that has mostly one story buildings. To
comply with the “vertical” guidelines will prevent the building from being in harmony with its
surrounding structures.
TC 8/13/13
Page 7 of 16
Section 193 – Materials and other requirements
A.
The predominant wall material will be painted fiber cement clapboard. There will not be any
overly detailed ornaments.
B.
Door and window trim will be painted fiber cement trim boards.
C.
There will not be any metal used on walls and roof, except for flashing purposes.
D.
Slate, 12” x 12” square, will only be used as finish floor material at the Covered Front Entry.
E.
Specific building materials and configurations deemed to help accomplish the goals stated in
Sections 54.1, 191, and 192 are as follows:
(1)
Walls – predominantly painted fiber cement clapboard with stone accents.
(2)
Columns – boxed out with painted fiber cement trim finish and stone base.
(3)
Roofs – architectural fiberglass roofing shingles; roof slope will be 5 on 12.
(4)
Windows and doors – aluminum clad frames with non-reflective Low E glass and
simulated true divided window panes.
(5)
Mechanical system equipment will be located in the side yards and screened with
landscaping.
(6)
This building site location is not in a PD zoned area. However, based upon site
engineering calculations, total coverage of site with impervious surfaces is approximately 23.46%.
(7)
There will be no outside storage or equipment (other than HVAC equipment). Fencing
on this project shall be 4’-0” high aluminum picket type around the swimming pool area. There will be a
privacy fence along the front between the Clubhouse and the Pool Equipment Building. This fence will
have materials to match the siding material of the buildings, and is designed to create continuity
between the Clubhouse and the Pool Equipment Building.
TC 8/13/13
Page 8 of 16
TC 8/13/13
Page 9 of 16
TC 8/13/13
Page 10 of 16
TC 8/13/13
Page 11 of 16
TC 8/13/13
Page 12 of 16
TC 8/13/13
Page 13 of 16
TC 8/13/13
Page 14 of 16
TC 8/13/13
Page 15 of 16
TC 8/13/13
Page 16 of 16

AGENDA Regular Business Meeting of the Southern Pines Town

Transcription

Similar documents

Untitled - DTZ Canada Inc.

3,282 SF Building on .48 Acres 3314 S Gevers San Antonio, TX 78210

Fore Rent: Vacation House in Tali Beach, Nasugbu

For a copy of the lease application for unit 411 direct ocean front

Buy to let-Tips for investors

Weslayan Plaza - Regency Centers

investment offering- single tenant nnn corporate lease

Residential Eviction Mediations

Amanda Wiewiorka - Scottish Association of Landlords

FDA Approved | Cialis Manufacturers In India