HomeMy WebLinkAbout2003-20Ordinance 2003-20
Authorizing a Contract with U. S. Cellular
ADOPTED: November 11, 2003
EFFECTIVE: November 11, 2003
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TOWN OF PULASHI, VIRGINIA
ORDINANCE 2003-20
AUTHORIZING A CONTRACT WITH U. S. CELLULAR
WHEREAS, the Town Council of Pulaski, Virginia sitting in regular session on
the 11`" day of November, 2003 has determined that it is m the public interest and general
welfare to engage in Downtown Revitalization and improved communications; and
WHEREAS, U. S. Cellular, can provide valuable services to the Town of Pulaski
performing the services described in the attached contract dated November 11, 2003; and
BE IT ORDAINED by the Council of the Town of Pulaski, Virginia, that the
contract dated November 11, 2003 attached hereto and expressly made a part hereof as if
expressly set forth herein, authorizing the construction of a cellular phone tower by U. S.
Cellular on land owned by the Town of Pulaski, Virginia is hereby adopted and the
appropriate Town Officials are authorized to execute same.
This ordinance is effective upon adoption and is hereby adopted this 11th day of
November, 2003, subject to proper execution by U. S. Cellular, and is adopted by the duly
recorded vote of the Town Council of the Town of Pulaski, as follows:
Bettye H. Steger -Aye
John T. Bolen -Aye
Pauline G. Mitchell -Aye
Jeffrey S. Worrell -Aye
Kenneth M. Fleenor -Aye
James M. Neblett, Jr. -Aye
E. G. Black, Jr. -Aye
Town of Pulaski, Virginia
By: ~ -
Charles W. Stewart, Jr., Mayor
ATTESTED:
- ,.
Patricia Cruise, Clerk of ouncil
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Site No.
789331
GROUND LEASE
This Lease is made and entered into as of ~ day of , 2003, by
and between the Town of Pulaski, a Municipal Corporation, 42 1 S` Street, Pulaski, VA
24301, hereinafter referred to as "Landlord", and USCOC of Virginia RSA #3, a Virginia
Corporation, doing business as U.S. Cellular, Attention: Real Estate, 8410 West Bryn
Mawr Avenue, Suite 700, Chicago, Illinois 60631 ("Tenant").
In consideration of the mutual promises, conditions, and other good and valuable
consideration of the parties hereto, it is covenanted and agreed as follows:
1. Option to Lease.
(a) Landlord hereby grants to Tenant an option ("the Option") to lease from
Landlord the following described Leasehold Parcel:
Approximate dimensions: 20' X 60'
Approximate acreage: 0.0275 Acre
Location:
Portion of property, approximately 0.0275 acre, of those two (2) certain lots or
parcels of land located in the Town of Pulaski, County of Pulaski and State of Virginia,
designated as Lots No. Thirty-nine (39) and Forty (40) as shown on a plat, with certificate
of annexation, of the Villamont Addition, Pulaski, Virginia, dated May 6, 1926, and of
record in the Clerk's Office of the Circuit Court of Pulaski, Virginia, in Deed Book 53, Page
400. Further referenced as TAX Parce1072-095-0005-0039,040
In the Town of Pulaski, State of Virginia.
(Collectively the "Leasehold Parcel") together with unrestricted access for Tenant's uses from
the nearest public right-of--way along the Landlord's property which Leasehold Parcel is more
fully described in the attached Exhibit "A".
(b) During the Option period and any extension thereof, and during the term of
this Agreement, Tenant and its agents, engineers, surveyors and other representatives will
have the right to enter upon the Leasehold Parcel to inspect, examine, conduct soil
borings, drainage testing, material sampling, and other geological or engineering tests or
studies of the Leasehold Parcel (collectively the "Tests"), to apply for and obtain licenses,
permits, approvals, or other relief required of or deemed necessary or appropriate at
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Tenant's sole discretion for its use of the Premises and include without limitation
applications. for zoning variances, zoning ordinances, amendments, special use permits,
and construction permits (collectively referred to as ("Govenimental Approvals"), and
otherwise to do those things on or off the Leasehold Parcel that, in the opinion of Tenant,
are necessary in Tenant's sole discretion to determine the physical condition of the
Leasehold Parcel, the environmental history of the Leasehold Parcel, Landlord's title to
the Leasehold Parcel, and the feasibility or suitability of the Leasehold Parcel for Tenant's
Permitted Use, all at Tenant's expense. Tenant will not be liable to Landlord or any third
party on account of any pre-existing defect or condition on or with respect to the
Leasehold Parcel, whether or not such defect or condition is disclosed by Tenant's
inspection.
(c) In consideration of Landlord granting Tenant the Option, Tenant hereby
agrees to pay Landlord the sum of $1,000.00 upon execution of this Agreement. The Option
will be for an initial term of twelve months (the "Initial Option Term") and may be renewed
by Tenant for an additional six months upon written notification to Landlord and the payment
of an additional $1,000.00 no later than ten (10) days prior to the expiration date of the Initial
Option Term.
(d) During the Initial Option Term and any extension thereof, Tenant may
exercise the Option by notifying Landlord in writing. If Tenant exercises the Option then
Landlord leases the Leasehold Parcel to the Tenant subject to the following terms and
conditions.
2. Grant ofNon-Exclusive Easement Parcel(s). Unless the Leasehold Parcel is
immediately adjacent to public rights-of--way for ingress, egress, and utilities, Landlord
hereby grants to Tenant the following described Non-Exclusive Easement Parcel(s)
appurtenant to the Leasehold Parcel:
Use: Access.
Width: 20'; Approximate length: 100'
between the Leasehold Parcel and the public road known as Ridge Avenue
over existing traveled ways where practical, and establishing a new route as
necessary.
Use: Utilities.
Width: 5'; Approximate length: 150'
between the Leasehold Parcel and suitable utility company service connection points.
Landlord agrees to make such direct grants of easement as the utility companies may
require.
3. Grant ofNon-Exclusive Easement R.i~hts. To effect the purposes of this Lease,
Landlord hereby grants to Tenant the following Non-Exclusive Easement Rights: (a) the
right to clear vegetation, cut timber, and move earthen materials upon the Easement Parcels;
(b) the right to improve an access road within the Access Easement Parcel; (c} the right to
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place utility lines and related infrastructure within the Utilities Easement Parcel; (d) the right
to enter and temporarily rest upon Landlord's adjacent lands for the purposes of installing,
repairing, replacing, and removing the leasehold improvements (the "Improvements") and
any other personal property of Tenant upon the Leasehold Pazcel and improving the
Easement Parcels, including the right to bring in and use all necessary tools and machinery;
and (e) the right of pedestrian and vehiculaz ingress and egress to and from the Leasehold
Parcel at any time over and upon the Access Easement Pazcel. The Leasehold Pazcel and
Easement Parcels aze collectively referred to herein as the "Premises." The Construction and
Improvements will not obstruct the access to the Town Improvements.
4. Survey /Site Plan. Tenant may, at Tenant's expense, cause a survey, site plan,
and/or legal description of the Premises to be prepared, to further delineate and identify the
land underlying the Premises, and to attach the same as exhibits to this Lease.
5. Use of the Premises. Tenant shall be entitled to use the Premises to construct,
operate, modify as necessary, and maintain thereon a communications antenna tower
(including aviation hazard lights when required), an access road, one or more equipment
buildings, and a security fence, together with all necessary lines, anchors, connections,
devices, and equipment for the transmission, reception, encryption, and translation of voice
and data signals by means of radio frequency energy and landline carriage.
6. Term of Lease. In the event Tenant exercises the Option, the initial lease term
will be five (5) years (the "Initial Term"), commencing upon the Commencement Date, as
defined below. The Initial Term will terminate on the last day of the month in which the fifth
annual anniversary of the Commencement Date occurred.
7. Option to Renew. Tenant shall have the option to renew this Lease for up to
two (2) additional terms of five (5) years each, upon a continuation of all the same provisions
hereof, by giving written notice to Landlord of Tenant's exercise of this option at least sixty
(60) days before the expiration of the term then present at the time of such notice. Thirty
days before the expiration of the second additional teen of this lease, Tenant shall have the
option to terminate the lease or renegotiate the same.
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8. Option to Terminate. Tenant shall have the unilateral right to terminate this
Lease at any time by giving thirty (30) days written notice to Landlord of Tenant's exercise
of this option and paying Landlord the amount of five thousand dollazs ($5,000.00) as
liquidated damages.
9. Base Rent. Commencing on the date that Tenant commences construction (the
"Commencement Date"), Tenant shall pay Base Rent to Landlord in the amount of $1,250.00
per month, which shall be due when construction begins and then regulazly thereafter on the
first day of each calendaz month. Landlord shall specify the name, address, and taxpayer
identification number of a sole payee (or maximum two joint payees) who shall receive rent
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on behalf of the Landlord. Rent will be prorated for any partial month.
10. Adjusted Rent. On every anniversary of the commencement date of the term
of this Lease, and throughout the duration hereof as renewed and extended, the Base Rent
shall be adjusted in proportion to the cumulative change in the latest published Consumer
Price Index compared to the same index as historically recorded for the month and year in
~~hich the term of this Lease commenced. "Consumer Price Index" shall mean the Consumer
Price Index for All Urban Consumers, All Items, U.S. City Average, 1982-84 =100, (LJ.S.
Department of Labor, Bureau of Labor Statistics) or three percent (3%) annually, whichever
is greater. If the said Index ceases to be published, then a reasonably comparable index shall
be used.
11. Possession of Premises. Tenant shall not be entitled to take possession of the
Premises and commence work to construct the Improvements until Tenant makes the first
payment of rent.
12. Utilities. Tenant shall solely and independently be responsible for all costs of
providing utilities to the Premises, including the separate metering, billing, and payment of
utility services consumed by Tenant's operations.
13. Property Taxes.
(a) Tenant shall pay the personal property taxes levied against the Improvements
and the real estate taxes levied against the land underlying the Leasehold Pazcel. If the
<:Iassification of the land for tax purposes changes as a result of Tenant's commercial use,
then Tenant shall be responsible for increases attributable to such commercial use. Increases
in property values reflected in Landlord's property tax bill received after the first assessment
date following Tenant's completion of construction shall be deemed to best indicate the
impact attributable to Tenant.
(b) Although Tenant will be receiving a separate tax bill for its personal property,
the parties assume that the Leasehold Parcel will not be eligible for a sepazate assessor's
parcel number. Therefore, Tenant shall contribute to the payment~"f real estate taxes on the
underlying Land promptly following Landlord's demand therefor, provided that Tenant's
proportionate share shall be computed as follows: Area of Leasehold Parcel, divided by area
of total tract shown on tax bill, times total tax attributable to land only. The parties agree to
cooperate in good faith to identify the portion of Landlord's property tax increases for which
Tenant is fairly responsible, and Tenant agrees to subsidize such increases.
(c) Landlord's requests to Tenant for contribution or reimbursement of property
taxes should be addressed to USCeII, P.O. Box 31369, Chicago, IL 60631-0369. A copy of
Landlord's tax bill must accompany all requests. Tenant shall comply with requests for
contribution by issuing a check for Tenant's proportionate share made payable to the tax
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collector. Tenant shall comply with requests for reimbursement by issuing a check to
Landlord, provided that a paid tax receipt accompanies such request.
(d) Tenant shall have the right, but not the obligation, to pay Landlord's real estate
taxes on the underlying land if the same become delinquent, to ensure that Tenant's leasehold
interest does not become extinguished. Tenant shall be entitled to take a credit against rent
for the portion of Landlord's taxes which it was not Tenant's obligation to pay, as such
amount shall reasonably be substantiated.
14. Repairs. Tenant shall be responsible for all repairs of the Improvements, and
may at its own expense alter or modify the Improvements to suit its needs consistent with the
intended use of the Premises.
15. Mutual Indemnification. Tenant shall indemnify and hold Landlord harmless
from and against any loss, damage, or injury caused by, or on behalf of, or through the fault
of the Tenant, or in any way resulting from Tenant's presence upon Landlord's lands.
Landlord shall indemnify and hold Tenant harmless from and against any loss, damage, or
injury caused by, or on behalf of, or through the fault of the Landlord. Nothing in this Article
shall require a party to indemnify the other party against such other party's own willful or
negligent misconduct.
16. Insurance. Tenant shall continuously maintain in full force and effect a policy
of commercial general liability insurance with limits of One Million Dollazs covering
Tenant's work and operations upon Landlord's lands.
17. Monetary Default. Tenant shall be in default of this Lease if Tenant fails to
make a payment of rent when due and such failure continues for fifteen (15) days after
Landlord notifies Tenant in writing of such failure. Failure to pay rent shall constitute a
material breach of this agreement and Landlord may cancel this lease at its option upon
notice to tenant.
18. Onyortunity to Cure Non-Monetary Defaults. If Landlord or Tenant fails to
comply with any non-monetary provision of this Lease which the other party claims to be a
default hereof, the party making such claim shall serve written notice of such default upon
the defaulting party, whereupon a grace period of 30 days shall commence to run during
which the defaulting party shall undertake and diligently pursue a cure of the default. Such
grace period shall automatically be extended for an additional 30 days, provided the
defaulting party makes a good faith showing that efforts towazd a cure are continuing.
Failure to comply by either party may result in the cancellation of this lease at the option of
the non-defaulting party.
19. Assipiment of Lease by Tenant. This Lease and the Premises hereunder shall
be freely assignable by the Tenant to another party acceptable to the Landlord with
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Landlord's consent, such consent not to be unreasonably withheld or delayed. Tenant's right
to effect an outright transfer of the Premises, and the right of any collateral assignee to seize
the Premises as defaulted security, is subject only to the limitation that the Premises shall be
used for the purposes permitted herein. Tenant shall notify Landlord in writing of the name
and address of any assignee or collateral assignee.
20. Subleasing. Tenant shall have the right to sublet the tower space upon the
Premises to subtenants. Tenant shall be required to pay over to Landlord, at least once
every six (6) months, an amount equal to twenty-five percent (25%) of all rents which
Tenant has actually received or collected from such subtenants since the last such
remittance to Landlord previously made. Tenant shall sublet space on its Tower, if
available, to other cell companies if the terms are acceptable to the Landlord and the
Tenant, and the proposed cell company is otherwise acceptable to the Town.
21. Execution of Other Instruments. Landlord agrees to execute, acknowledge, and
deliver to Tenant other instruments respecting the Premises, as Tenant or Tenant's lender may
reasonably request from time to time, provided that any such instruments aze in furtherance
of, and do not substantially expand, Tenant's rights and privileges herein established. Such
instruments may include a memorandum of lease that maybe recorded in the county land
records. Landlord also agrees to reasonably cooperate with Tenant's efforts to obtain all
private and public consents related to Tenant's use of the Premises, as long as Landlord is
not expected to beaz the financial burden of any such efforts.
22. Removal of Improvements. The Improvements are agreed to be Tenant's
personal property and shall never be considered fixtures to the real estate. Tenant shall at all
times be authorized to remove the Improvements from the Premises. Upon the expiration or
earlier termination of this Lease, Tenant shall, if requested by Landlord and at Tenant's
expense, remove any aboveground Improvements from the Premises. Removal of
improvements shall occur within 90 days of termination of this Lease. If not removed by
tenant upon demand of Landlord within 90 days thereof, then Landlord shall remove said
improvements and the expense of same (actual costs) shall be liquidated damages payable
by Tenant to Landlord. If Landlord does not notify Tenant that Tenant must remove such
Improvements, then Tenant shall have the option of either removing. or abandoning such
Improvements, and in any event Tenant shall be entitled to abandon all footings, foundations,
and other below-ground Improvements in place.
23. Ouiet Enjovment. Landlord covenants that Tenant shall have quiet and
peaceable possession of the Premises throughout the Lease term as the same may be
extended, and that Landlord will not intentionally disturb Tenant's enjoyment thereof as long
as Tenant is not in default under this Lease.
24. Assignment of Tenant's Interest. Tenant's interest under this Lease maybe
freely assigned in connection with the transfer of Tenant's FCC authorization to operate a
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commercial mobile radio base station at the Site, so that the name and identity of the holder
of Tenant's interest hereunder can be consistent with the name and identity of the holder of
said FCC authorization. Any other assignment of this Lease by Tenant shall require
Landlord's prior written consent, which Landlord shall not unreasonably withhold. No
assignment shall be effected pursuant to this Section unless Tenant shall notify Landlord in
writing setting forth the name, address and telephone number of such assignee.
25. Environmental Warranty. Landlord hereby represents and warrants to Tenant
that Landlord has never generated, stored, handled, or disposed of any hazazdous waste or
hazazdous substance upon the Leasehold Parcel, and that Landlord has no knowledge of such
uses historically having been made of the Leasehold Parcel or such substances historically
having been introduced thereon.
26. Attorney's fees. Mediation and Arbitration. Mediation shall be entered into by
the parties in an attempt to settle any disputes under this agreement. If mediation is
unsuccessful, then the parties agree to binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in the jurisdiction where the site
is located. The costs of such arbitration shall be borne by the non prevailing party. If an
arbitrator and/or mediator cannot be agreed upon by the parties, then the parties agree that
the Circuit Court of the County of Pulaski shall select the arbitrator and/or mediator.
27. Binding_Effect. All of the covenants, conditions, and provisions of this Lease
shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and assigns.
28. Entire Agreement. It is agreed between the parties hereto that this Lease is a
reasonable settlement of the rights of the parties hereto and that it is the entire understanding
of the parties and that no negotiations or verbal or written agreements exist, but that all such
agreements are hereby merged into this document. No modification of this Lease shall be
allowed unless in writing and signed by the parties hereto.
29. Further Documents. Each party agrees to execute any and all documents,
instruments, or further writings or documents which may be necessary or appropriate to
effectuate the terms of this Agreement. _
30. Severability. If a court of competent jurisdiction at any tune holds that a
portion of this Lease is invalid, the remainder shall not be affected thereby and shall continue
in full force and effect.
31. Voluntary Execution. The parties acknowledge that they aze entering into this
Lease freely and voluntarily and that no coercion, force, pressure or undue influence has
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been used in the execution of this Lease, either by the other party hereto or by any other
person or persons; that they have ascertained and weighed all facts and circumstances likely
to influence there judgment herein; that they have sought or had the opportunity to seek and
obtain legal advice independently of each other or have freely waived such opportunity; and
that they clearly understand and assent to all provisions hereof. All questions pertinent
thereto, have been fully and satisfactorily explained to them; that the settlement embodied
in this agreement is in all respects acceptance to them, and that accordingly they assent to all
the provisions hereof.
32. Interpretation. This Lease shall be interpreted in accordance with the laws of
the Commonwealth of Virginia.
33. Non-binding until Full Execution. Both parties agree that this Lease is not
binding on both parties until both parties execute the Lease.
34. NOTICE: All notices regarding this lease shall be sent to:
A. Landlord: Town of Pulaski
John Hawley, Town Manager
42 First Street
P. O. Bax 660
Pulaski, VA 24301
B. Tenant: USCOC of Virginia RSA #3, Inc.
Doing business as U.S. Cellular
Attention: Real Estate
8410 West Bryn Mawr Avenue, Suite 700
Chicago, Ilinois 60631
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Signature Page
IN WITNESS WI~REOF, the parties hereto bind themselves to this Ground Lease
as of the day and year first above written.
LANDLORD:
Bv:
Title:
TENANT:
USCOC of Virginia RSA #3, Inc.
a Virginia Corporation
Title:
Town of Pulaski,
A Municipal Corporation
Social Security # (or FEIN)
Printed:
~'~XTITNESSES:
x
Printed:
x
Printed:
10
By:
U. S. Cellular
Printed:
Title:
WITNESSES:
x
Printed:
x
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Printed:
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STATE OF )
COUNTY OF )
I, the undersigned, a notary public in and for the State and County aforesaid, do
hereby certify that ,known to me to be the same person(s)
whose name(s) (is) (are) subscribed to the foregoing Ground Lease, appeazed before me this
day in person and (severally) acknowledged that (he) (she) (they) signed the said Lease as
(his) (her) (their) free and voluntary act for the uses and purposes therein stated.
Given under my hand and seal this day of , 2003.
Notary Public
My commission expires
STATE OF
COUNTY OF )
I, the undersigned, a notary public in and for the State and County aforesaid, do
hereby certify that ,for U. S. Cellular, known to me to be the
same person whose name is subscribed to the foregoing Ground Lease, appeared before me
this day in person and acknowledged that, pursuant to his authority, he signed the said Lease
as his free and voluntary act on behalf of the named Tenant corporation, for the uses and
purposes therein stated. •~-
Given under my hand and seal this day of ~ , 2003.
Notary Public
My commission expires
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I, Patricia Cruise, Clerk of Council, certify that the foregoing Ordinance 2003-20, Authorizing a
Contract with U.S. Cellular, is a true and correct copy as adopted by the Pulaski Town Council at
their regular meeting on November 11, 2003.
Patricia Cruise, Cler of Council
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Tc/c/ordinance/certification 2003-20