HomeMy WebLinkAbout02-02 Comments (2)FILE COPY
COUNTY of FREDERICK
Department of Planning .and Development
5401665-5651
FAX: 5401665-6395
October 18, 2002
Mr. David C. "Stewart
McGuire Woods LLP
1750 Tysons Boulevard, Suite 1800
McLean, Virginia 22102-4215
RE: Conditional Use ]Permit #01-02, Cold Spring Tower
Conditional Use Permit #02-02, Acorn Hill Tower
Conditional Use Permit #03-02, Hunting midge Tower
Dear Mr. Stewart:
Please be advised that the County intends to place the three applications referenced above on the
Frederick County Board of Supervisors' December 11, 2002 meeting agenda. Previous action on
these applications had been deferred per your request of March 25, 2002. As noted in a letter to you
dated March 29, 2002, it is the County's intent to act on these applications prior to their December
21,2002 -submission date anniversary.
I would request that you submit any additional information pertinent to these applications to the
Planning Department by November 13, 2002. Please contact me with any questions regarding these
applications.
Eric R&Tawrence, AICD
Director
ERL/kac
cc: John R, Riley, Jr., County Administrator
UAEdc\Common\CUP\Triton Tower Reschedule.wpd
107 berth Kem.t Street c� Winchester, Virginia 22601-5000
March 29, 2002
Mr. David C. Stewart
McGuireWoods LLP
1750 Tysons Boulevard, Suite 1800
McLean, Virginia 22102-4215
COUNTY of FREDERICK
Department of Planning and Development
540/665-5651
FAX: 540/665-6395
RE: Conditional Use Permit 901-02, Cold Spring Tower
Conditional Use Permit #02-02, Acorn Hill Tower
Conditional Use Permit #03-02, Hunting Ridge Tower
Dear Mr. Stewart:
I am in receipt of your letter, dated March 25, 2002, regarding the above -referenced Conditional Use
Permit applications. In your letter, you restate your client's desire to continue an indefinite deferral
of the Conditional Use Permits (CUPs).
These three CUP applications were originally submitted to the County on December 21, 2001. The
County will continue to defer action on these applications, per your request. But, I would bring to
your attention, the County's intent to act on the applications prior to the applications' one-year
anniversary. Therefore, action will be taken on these applications prior to December 20, 2002.
I understand the yellow public hearing signs are still on display at each of the tower sites. Since
these CUP petitions have been deferred, I would suggest that you remove the signs from public view.
Our office has continued to receive inquiries regarding the petition; the inquiries are generated by
the signs on display. Once these petitions are placed back on the Board of Supervisors' agenda, the
signs could be appropriately returned to the sites for display.
Please contact me with any questions.
Deputy Director
[CP
ERL/bah UAEric\Common\CUP\Triton Tower Request for Deferral.wpd
107 North Kent Street • Winchester, Virginia 22601-5000
McGuireWoods LLP
1750 Tysons Boulevard
Suite 1800
McLean, VA 22102-4215
Phone: 703.712.5000
Fax: 703.712.5050
www.mcguirewoods.com
David C. Stewart
Direct: 703.712.5433
V;Fri04 n
March 25, 2002
Eric R. Lawrence, AICP
Deputy Director, Department of Planning and Development
County of Frederick
107 North Kent Street
Winchester, VA 22601
RE: Triton PCS (d.b.a. SunCom AT&T)
Update on Route 522 Telecommunications Sites
Dear Mr. Lawrence:
dstewart@mcguirewoods.com
Direct Fax: 703.712.5293
I am writing on behalf of Triton PCS (d.b.a. SunCom AT&T)("SunCom") to update you on
the status of SunCom's planned expansion of its telecommunications network out the Route 522
corridor and to advise you that SunCom desires to continue the indefinite deferral of its
conditional use permit applications related to the Route 522 expansion.
Unfortunately, SunCom has decided not to expand its telecommunications network out
the Route 522 corridor during 2002, as was originally planned. The substantial capital
investment required for SunCom's 522 expansion would not be prudent at this time given the
inefficiencies of the network that would be established by deploying SunCom's antennas on the
recently approved towers in the 522 corridor. Weighed against other requests for the same
capital resources, the resulting network simply would not adequately achieve SunCom's short-
term and long-term coverage objectives for the 522 corridor.
Each year, SunCom must allocate its expansion resources among the competing
markets in its multi -state telecommunications network. SunCom's expansion decisions are
driven by the relative short-term and long-term efficiencies of the competing proposals for
network expansion. Any proposed expansion must interface as seamlessly as possible with the
existing network and must also be internally seamless so customers can place, receive and
maintain calls throughout the key service areas of the network. Likewise, a proposed expansion
must also be designed to accommodate seamless future expansion - the design of a current
network expansion cannot ignore its interface with potential future expansion. As we discussed
with you, the Planning Commissioners and the County Supervisors over the last few months,
SunCom's use of the approved Shared Towers structures alone will not provide the requisite
seamless network (either as part of the current network or in connection with future expansion).
In a higher -volume market, deploying a less than optimal network might make sense, but not in
the current Frederick County market. Therefore, it was decided to allocate those resources to
other areas within SunCom's current network.
Mach 25 2-00-2
Page 2
SunCom and SBA Properties, Inc. ("SBA") request that Conditional Use Permit
applications 01-02 (Cold Spring Tower Telecommunications Facility), 02-02 (Acorn Hill Tower
Telecommunications Facility) and 03-02 (Hunting Ridge Tower Telecommunications Facility)
remain indefinitely deferred until further notice. Please advise if you require any additional input
from us to maintain the active status of these deferred applications until SunCom can revisit
potential expansion of its telecommunications network in the Route 522 corridor.
Finally, SunCom, SBA and I would like to thank you, Kris Tierney and your staff for all of
your time and effort regarding this matter over the last few months. We regret that SunCom is
unable to extend its telecommunications service to the Route 522 corridor at this point in time,
but we hope to be able to revisit this issue with you in the not too distant future.
Thank you again for your attention to this matter and please call me if you require any
additional information.
Best regards,
""�z0..Q 5-�.-4-
David C. Stewart
cc: Frederick County Board of Supervisors
Frederick County Planning Commission
Kris Tierney, Assistant County Administrator
Mr. Dale Finocchi, SunCom AT&T
Mr. Frank Shortall, SunCom AT&T
Mr. David Whitacre
Gary and Rozella Feltner
Jackie and Marie Roberts
\\REA\101058.5
i V E'L—J"
MAR 2 6 Z002
DEPT. OF PLANNING/DEVELOPMENT
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December 21, 2001 riEG l V E L
Frederick County, Virginia
Planning Commission and Board of Supervisors
107 North Kent Street
Winchester, Virginia 22601
RE: Request for Conditional Use Permit approval for a
Telecommunications Tower
Acorn Rill
7185 North Frederick Pike
Cross Junction, Virginia 22625
Dear Board Members:
SBA Properties, Inc. (SBA) and Triton PCS (d.b.a. Suncom and will be referred to herein
as Suncom) respectfully requests conditional use permit approval for a proposed
telecommunications tower facility located on the above-mentioned property. The
proposed 195 -foot high tower will consist of a monopole -type structure as required for
new telecommunication towers in Frederick County. In August of this year, this site was
selected by Suncom's radio-frequency engineers to fill a coverage void and efficiently
expand Suncom's network in Frederick County. The proposed facility in conjunction
with Suncom's existing and proposed network will enable Suncom to provide reliable
service to the entire Route 522 corridor from Winchester to Whitacre. (See attached Site
Lease Acknowledgement and Propagation Maps). Suncom proposes to install twelve
(12) telecommunications antennas. The antennas and proposed lightning rod will
increase the height of the structure to no taller than 199 feet. The proposed location and
height of the antennas is sufficient for the radio signal to clear any obstructions such as
trees and hilly topography to provide dependable coverage to the intended area. The
tower design is of sufficient size to allow.up to five commercial providers to co -locate
equipment on the tower.
The subject property is located within Frederick County, Virginia on the west side of
Frederick Pike (Rte. 522) and east of Old Frederick Pike Road in Acorn Hill, also known
as Tax Map 18, Lot 25 in the Gainesboro District. The site contains approximately 62
acres of land and is zoned "RA" (Rural Area District). The property in question is an
open field surrounded by large trees. The proposed tower location is within a 10,000
square foot leased area near the top of a very steep slope. The existing dirt trail currently
SBA, Inc. ® 8401 [orporafe Drive ® Suife 560 ® Landover, MD 20785 ® (301) 731-5755 fax (301) 731-3955 im www.sbasife.com
used to access the site from Old Route 522 will be replaced with a proposed 20 -foot wide
access.
Pursuant to Section 165-48.6, commercial telecommunication facilities located in the
"RA" district are permitted by conditional use permit approval in accordance with Article
III of the Frederick County Zoning Code.
In order to be approved, the standards set forth in Section 165-16 of the Frederick County
Zoning Code must be satisfied. The location and design of the proposed tower and
equipment shelter complies with all the standards contained within this section:
• The proposed telecommunications facility will be unmanned and, aside from its
visibility, will have little physical impact on natural land resources. The subject
property is a vacant open field and is adjacent to residential use. There is a natural
buffer of forests along the boundaries of the property. The proposed use will not
change the character of the surrounding area. Furthermore, this low intensity use on a
low intensity parcel in the "RA" district adjacent to open parcels of rural land and
forests will not impose an adverse impact on the surrounding area. The facility will
generate no vibration, pollution, heat, glare or waste products.
There will be no adverse impact on the health or general welfare of the public
resulting from placement of the proposed tower. Extensive studies conducted by the
American National Standards Institute (ANSI) and the Institute of Electrical and
Electronic Engineers (IEEE) have revealed no known health risks associated with the
radio frequency energy emitted from Personal Communication Services (PCS) base
stations like the proposed communications facility. Additionally, the proposed
communications facility will be designed and manufactured in accordance with strict
Federal Communications Commission requirements. SBA has notified and made the
required applications to the Federal Aviation Administration (FAA) in order to ensure
that the proposed tower will not exceed FAA obstruction standards or constitute a
hazard to air navigation in the area.
• The tower structure is designed to withstand sustained hurricane force winds, and in
the unlikely event that sufficient force induces structural failure, the tower is designed
to collapse upon itself within a limited fall zone about the base.
• The proposed facility will not negatively impact property values. Additionally,
landscaped buffering will surround the facility.
• The design of the proposed communications facility is compact and not of a nature
that significantly alters the existing site character or impacts nearby properties. The
tower will be a galvanized gray finish. There will be no lights on the tower unless
required by FAA, which is not anticipated due to the height of the proposed structure.
The relatively small size of the equipment and enclosing compound and the low
intensity use make the unmanned communications facility compatible with the low
density character of the surrounding area.
• The unmanned communications facility is designed to operate automatically and
continuously. It will require no water or sanitary sewer services. As well, the
facility places no additional burden on schools, fire, or police services.
• There will be no increase in traffic as the facility will only require maintenance visits
approximately once a month and on an as -needed basis to repair malfunctioning
equipment. A proposed 20 -foot wide ingress/egress easement will be used to access
the compound and to provide for utilities.
• The proposed communications facility meets or exceeds all principal structure
setbacks for the "RA" district. The proposed tower location on this site and the
distance from all property lines minimizes any visual impact on neighboring
properties.
Based upon the criteria discussed above, this use at this location will serve the growing
communication needs of the area while not adversely affecting the health, safety, and
general welfare of the citizens of Frederick County.
SBA believes that providing wireless communications to the citizens and visitors of
Frederick County in a climate where information and communication are key
components in enhancing convenience and safety. Furthermore, we believe from the
aforementioned analysis that the proposed tower is in harmony with the spirit and intent
of the Zoning Regulations.
Therefore, we respectfully request conditional use permit approval for this proposed
tower location. Thank you for your consideration. If you have questions or need
additional information, please call me at (301) 731-5755 or (301) 367-6219.
Sincerely,
SB PROPERTIES, INC.
Carlton W. Gilbert
Project / Zoning Manager
Thus Site Acknowle�ent (the "SLA"') is made this day of . 2001, by and bet�veHt
? Rl'PbN PCS P1io RTY COMPANY L.LC ("Tenant") and SBA PROPER'1 IM INC. (` unndlcn r), as
of that o%ten Master Leescf AgteemeW (the ";Agreement") bey and between The parties hereta, dated August g, 200.1
Pursuant and nibiectj to the Ageamtnt, Landlord hereby leasee that portion of the site described below for the
iasiallation, operatiaq and maintenance of the following wirelm communications titeifity (the -Facility"):
1. The Facishal
lity l onsist of Tenant's right to lease rho portion of the Site oa that certain parcel of property
located in the C of liaderick in the State of Virginia, mere particularly described as a 100 feet by loo feet
parcel conmintingISLA
ately 10,t100 square let situated at 7135 Nit Ftakick Pike, (sass Junction, Vugin *
together with the sive: right for etgrass and egress, scvem days a we * tw,entrfour.how a day, an foot or
motor vehicle. inc� and kr .the installation and man�W mance of utility wires, pole$, ablss, conduits artd
pipers, over, ander along a twelve feet wide right of way exteading frena the rte -vest pubUc right of way, Nom
Frederick Pike, tosed premises„ said .promises and right of way for 4== cars being Ity as described
in:. �tiiulbit "li" to attached he�io and made a part hereof In. the event any public utility is unable to use the
dewo'W right oflord hereby agrees to gmt an additional right of way to Tenant at no cast to Tenant.
2. Tenant "I have the right to inoail antennas and equipment consistent with the specifications and in the
locations described low:
Tenaant reserves the& to install and utilize tie ground area and up to twelve (12) antennas end twelve (12) lines
ofcone as set forth ' the Agroeme nt to BUM to Suit and to Losse Dated August 8 2001.
3. Tet►ant eft drat Landkvt6 rights in the Site dcrive fi� a certain afire nennt elated November 26,
2WI bedva +a and Nv'id S. Whb^ I*eW#er t+efbtTW to ser the "MM l.ease" which is to be ttttadwd as
Exb1bit •'4" to the S attached hetero and made a partheraaf Landkwd shell not tar kWe the Prima Lease prior to
the eTkationof its or any mkwqueot a t6 asi n toners w thOW the expense vrridw mascot of Tent and La0rd
shag ercexdw its to Wend doe recant of the. Prime I,tase to areotntttodW Taunt': use of the Site, provided the
Tenant timely e x ' ix renewal rights under P vpnh 4 ofthe Agoeauent,
4. The term Of Itis SLA shall commence an the date that Landlord delivers to Tenant the closeout
dommcotation sox t then Ana hmeant A-14 of ft Build -to -Suit, Agteettradrtt dated Augur 8, 2001 by and between
Landlord and Team (the "Cohtneaeae ement Dsk") as ackwwledged by Tenant in the attached Ena:bibit -Sr.
5. The teen of this SLA is twelve (12) years beginning on the Commencement Daatte. Tenant shall have the
tight to cdcnd the T for three (3) eve five (5) year periods (eacdr. a "Renewal Term") an The same terms
SBA 844 Ia. vA0W9r Triton Soo m: wcR v47D
TrPton SU Noreen: WMtaaae g2
and type-ntetnber.
DAPA
Paned
58210
Number of
nae
Nine (9)
Number of
inwave dishes, ifanny.
N/A
Wtio and
. . ofanrtetne(s) (LxWxD):
54'x 6/3";11 lbs,
Ttmrsmim
lint mfr. A type no,:
Coax
.Diameter
gFh of transtnissiva ihur
1 5/8"
Location of
and microwave dam, if eny (as
de smibod in
"2" attuned hereto and
madz a part
crow.
Height of
s) on structLue:
195,
DQ>lm of
40. 180.300
F.cl;riptanett
idgag *acct dimensions (as desrn1bed
in Fsh"
in
3" attadte:d huxto and made a t� hawl):
12'x 16'
Power Output
TX. 1930-1945NCRz
Tenaant reserves the& to install and utilize tie ground area and up to twelve (12) antennas end twelve (12) lines
ofcone as set forth ' the Agroeme nt to BUM to Suit and to Losse Dated August 8 2001.
3. Tet►ant eft drat Landkvt6 rights in the Site dcrive fi� a certain afire nennt elated November 26,
2WI bedva +a and Nv'id S. Whb^ I*eW#er t+efbtTW to ser the "MM l.ease" which is to be ttttadwd as
Exb1bit •'4" to the S attached hetero and made a partheraaf Landkwd shell not tar kWe the Prima Lease prior to
the eTkationof its or any mkwqueot a t6 asi n toners w thOW the expense vrridw mascot of Tent and La0rd
shag ercexdw its to Wend doe recant of the. Prime I,tase to areotntttodW Taunt': use of the Site, provided the
Tenant timely e x ' ix renewal rights under P vpnh 4 ofthe Agoeauent,
4. The term Of Itis SLA shall commence an the date that Landlord delivers to Tenant the closeout
dommcotation sox t then Ana hmeant A-14 of ft Build -to -Suit, Agteettradrtt dated Augur 8, 2001 by and between
Landlord and Team (the "Cohtneaeae ement Dsk") as ackwwledged by Tenant in the attached Ena:bibit -Sr.
5. The teen of this SLA is twelve (12) years beginning on the Commencement Daatte. Tenant shall have the
tight to cdcnd the T for three (3) eve five (5) year periods (eacdr. a "Renewal Term") an The same terms
SBA 844 Ia. vA0W9r Triton Soo m: wcR v47D
TrPton SU Noreen: WMtaaae g2
and conditions as set Garth
unle % Tenant notifies Lata
oon,'I'Mcement of the soca
6. Within fiffeet (t5)b
Tenant shalt pay to Landlord:
Rent for any fiactiwat month
month a000rding to the numt
Mmiversary of the Commence
during the previous year.
IN WITNESS WHEREOF,
writt m above.
r. Each SLA st nonudcalty be extendW fior each guceemve R *0 Tenn
of its i awdon not to renow the specific SLA at least sixty (60) 4 priaf to
Renmal Tcsm.
inese, dw of tht Ct�ii cat:Deft and: on *c, $r8t day .of each month thereafter,
reit _ - par tnor>th (M mt" } The
I true. gitming or at the end of the Tian or Rene" Terms shall be prorated for than
of &ys remitting to the and o(ftd- mmfh..''Ih+ - Rwt 441 be increased on amb
int Aft by an amount equal to I of the Rent in effect
hereto have sot their hands and affixed Ov it nzpcct ive seals tate day and yaar first
Tritw PCS Property Company L.L.C.
H5"• Triton int Company, Inc., its manager
sy:
Name:
Title:
SBA PROPERTIES, INC.
By:
Name- Alyssa HoWjhan
Title: Director of Leasing
St9A Site ID: VA0099-D-01 I TOM Sit* ID: WCR 9470
TfRoat Site Name: WtAws #2
OPTION & LAND LEASE V A 3099- B
This Option and Land Lease, hereinafter referred to as
"Lease", is made the last day executed below by and between David
S. Whitacre, a(n) private citizen, ("Assignor/Grantor"), having an
address of 7254 North Frederick Pike, Cross Junction, VA 22625,
Federal Tax ID or Social Security Number 225-64-8453, hereinafter
referred to as "Lessor", and SBA Properties, Inc., a Florida
corporation, ("Assignee/Grantee"), having an office at One Town
Center Road, Third Floor, Boca Raton, Florida 33486, hereinafter
referred to as "Lessee."
1. The Option.
(a) For the sum of
(the "Option Fee"), to be paid to Lessor by Lessee upon execution of
this Lease and other good and valuable consideration, Lessor hereby
grants to Lessee the exclusive and irrevocable option for one (1) year
from the date hereof (the "Initial Option Period"), to lease the Leased
Space (as defined below) on the terms and conditions set forth below
(the "Option'. The Option may be extended for two additional
periods of one (1) year each, upon written notification to Lessor by
Lessee accompanied by the payment of
:or each one-year period (the "Additional Option Fee'),
delivered to Lessor prior to the end of the Initial Option Period or
first additional one-year Option Period. The Initial Option Period, as
it may be extended, is referred to herein as the "Option Period."
(b) In the event the Additional Option Fee is not
made and/or written notice not delivered by the due date for the
same, then the Option will terminate and this Lease will terminate
and Lessor will be entitled to retain all previously paid sums as full
payment for the Option granted hereunder. However, if Lessor
accepts any Additional Option Fee, Rent and/or written notice after
the due date for the same, then Lessee's failure to make"jimely
payment of the additional fee will be deemed waived and this Lease
will be reinstated. Upon Lessee's exercise of the Option, the Lease
which follows will take effect and Lessee shall be entitled to a credit
for all Option fees paid against Rent due under this Lease.
(c) During the Option Period, Lessee shall have the
right to enter the Owner's property to conduct tests and studies, at
Lessee's expense, to determine the suitability of the Leased Space for
Lessee's intended use. The tests may include, without limitation,
surveys, soil tests, environmental assessments and radio wave
propagation measurements.
(d) Lessee may exercise the Option by delivery of
written notice to Lessor in accordance with the Notice Provisions
specified herein. Upon Lessee's exercise of the Option, the Lease
which follows will take effect.
2. Leased Space and Premises. Upon Lessee's exercise
of the Option, Lessor shall lease, and hereby leases, to Lessee
approximately 10,000 square feet of space as depicted in Exhibit A
attached hereto (the "Leased Space") within the property commonly
known as 7185 North Frederick Pike, (Tax Parcel #: Map 18-A-25),
Cross Junction, Frederick County, VA, with the legal description set
forth in Exhibit B attached hereto (the "Premises'). Lessor also
hereby grants to Lessee the right to survey the Leased Space at
Lessee's cost. The survey will automatically replace Exhibit A and
be made a part hereof. The Leased Space legal and access and utility
easement set forth in the survey will replace any parent parcel
description set forth in Exhibit B as soon as it becomes available. In
the event of any discrepancy between the description of the Leased
Space contained herein and the survey, the survey will control. The
Leased Space will be utilized to construct, support and operate a
wireless communications facility, including a communications tower,
antennas, cables, and related structures and improvements (the
Revised 06/06/01
Job Cost#/Search Area:39003-08099/Atom Hlil
"Structures"), including the uses as permitted and described in
Section 11 of this Lease and for any other purpose with the Lessor's
prior written consent which shall not be unreasonably withheld or
delayed. Lessor grants Lessee the right to clear all trees, undergrowth
or other obstructions and to trim, cut and keep trimmed and cut all
tree limbs, undergrowth, or other obstructions which may, in the
reasonable opinion of Lessee, interfere with or fall upon Lcssec's
tower or any of Lessee's other improvements on the Leased Space.
3. Term, The initial term of this Lease will be five (5)
years from the "Commencement Date" specified below (in no event
shall this date be earlier than the date on which lessee exercises the
Option) and shall automatically renew for up to five (5) additional
terms of five (5) years each unless Lessee notifies Lessor of its
intention not to renew prior to commencement of the succeeding
renewal term. The initial term and each successive renewal term
shall be referred to herein as the "Term."
4. Rent. The rent for the first five (5) years of the Term
will be per month (the "Rent"), paid
monthly in advance, which Lessee will pay to Lessor at the place as
Lessor will designate to Lessee in writing. If the Term does not
begin on the first day or end on the last day of a month, the Rent for
that partial month will be prorated by multiplying the monthly Rent
by a fraction, the numerator of which is the number of days of the
partial month included in the Term and the denominator of which is
the total number of days in the full calendar month. Beginning with
the sixth (0h) year of the Term and every fifth (5a') year thereafter,
the then current monthly rental fee will be increased by twenty (20%)
percent. Each such year shall commence on the corresponding
anniversary of the Commencement Date.
5. Ingress and Egress. Lessor hereby grants to Lessee an
casement (the "Easement') for ingress, egress and regress over the
Premises adjacent to the Leased Space for construction, operation
and maintenance of the Structures on the Leased Space, and for
installation, construction, operation and maintenance of underground
and above ground telephone, telegraph, and power lines, in
connection with its use of the Leased Space. The term of this
Easement will commence upon exercise of the Option and will
continue until the last to occur of (i) expiration of the Tenn, or
(ii) removal by Lessee of all of Its property from the Leased Space
after expiration of the Term The location and configuration of the
Easement will be agreed upon by the parties within ten (10) business
days after the latter of Lessee's exercise of the Option, or Lessee's
approval of the survey. The Easement shall be included in any
recorded Memorandum or Short Form of this Lease. In addition, at
Lessee's request and expense, this Easement will be set forth in a
separate Easement Agreement which Lessor and Lessee agree to
execute and which Lessee will have recorded as an encumbrance on
the property of Lessor. In all events, the Easement and this Lease
shall be binding upon all subsequent owners, successors and assigns.
Lessee agrees that Lessor may, at Lessor's expense,
relocate the above described easements to another comparable
location on the Premises provided that: (a) Lessee receives no less
than sixty (60) days prior written notice thereof; (b) Lessee approves
the proposed new location of the easement, which approval will not
be unreasonably withheld or delayed; (c) Lessee's access and
beneficial use and enjoyment of the Leased Space is not interrupted,
obstructed or materially affected; and (d) the utility services to the
Leased Space are not interrupted.
6. Title and Quiet Possession. Lessor represents and
covenants that Lessor owns the teased Space in fee simple terms,
free and clear of all liens, encumbrances and restrictions of every
E. GINA _,
kind and nature, except for those as set forth below:
Name of Lienholder Type of Lion
Lessor represents and warrants that there are no matters
affecting title that would prohibit, restrict or impair the leasing of the
Leased Space or use or occupancy thereof in accordance with the
terms and conditions of the Lease. lessor represents and warrants to
Lessee that Lessor has the full right to make this Lease and that
Lessee will have quiet and peaceful possession of the Leased Space
throughout the term.
7. Suhordinaticon, Non-distutbap
a and AttorrtJnent
(a) Lessee agrees that this Lease will be subject and
subordinate to any mortgages or deeds of trust now or hereafter
placed upon the Leased Space and to all modifications thereto, and to
all present and future advances made with respect to any such
mortgage or deed of trust; provided that, the holder of any such
instrument agrees in writing that Lessee's possession of the Leased
Space will not be disturbed so long as Lessee will continue to
perform its duties and obligations under this Lease and Lessee's
obligation to perform the duties and obligations will not be in any
way increased or its rights diminished by the provisions of this
paragraph. Lessee agrees to attorn to the mortgagee, trustee, or
beneficiary under any such mortgage or deed of trust, and to the
purchaser in a sale pursuant to the foreclosure thereof; provided that,
Lessee's possession of the Leased Space will not be disturbed so long
as Lessee will continue to perform its duties and obligations under
this lease. Lessee's obligations hereunder are conditioned upon
receipt by Lcssee, within ten (10) business days after Lessee's notice
of its intent to exercise the Option, or within ten (10) business days
after the date of creation of any future mortgages or deeds of trust, of
a Subordination, Non -disturbance and Attomment Agreement in
form reasonably acceptable to Lessee, from any holder of a mortgage,
deed to secure debt, or deed of trust to which this Lease is, or will
become, subordinate.
(b) Lessee may from time to time grant to certain
lenders selected by Lessee and its affiliates (the "Lenders") a lien on
and security interest in all assets and personal property of Lessee
located on the Leased Space, including, but not limited to, all
accounts receivable, inventory, goods, machinery and equipment
owned by Lessee (the `Personal Property") as collateral security for
the repayment of any indebtedness to the Lenders. The Lenders may,
in connection with any foreclosure or other similar action relating to
the Personal Property, enter upon the Leased Space (or permit their
representatives to do so on their behalf) in order to implement a
foreclosure or other action without liability to Lessor provided,
however, that (i) Rent is paid to Lessor during occupancy by or on
behalf of (he Lenders for any purpose, (ii) the Lenders pay for any
damages caused by the Lenders or their representatives in removing
the Personal Property from the Leased Space, and (iii) the Lenders
otherwise comply with the terms of this Lease. Lessor hereby agrees
to subordinate any security interest, lien, claim or other similar right,
including, without limitation, rights of levy or distraint for rent,
Lessor may have in or on the Personal Property, whether arising by
agreement or by law, to the liens and/or security interests in favor of
the Lenders, whether currently existing or arising in the future.
Nothing contained herein shall be construed to grant a lien upon or
security interest in any of Lessor's assets. To the extent required by
the terns of this Lease, Lessor consents to any grant by Lessee to any
Lenders of alien on Lessee's leasehold intertest in this lease. In the
event Lessor gives Lessee any notice of default or termination of this
Lease (or commences any legal process relating thereto), Lessor will
endeavor to simultaneously give a duplicate copy thereof to the
Revised 06/06/01 -
Job Coat#/Search Arca! 39003-08099/Acorn Hill
Lenders but shall incur no liability due to Lessor's failure to give
such notice and the failure to give such notice shall not limit Lessor's
ability to exercise any remedies available to Lessor under this Lease.
Lessor agrees to accept performance on the part of any of the Lenders
or their agents or representatives as though performed by Lessee to
cure any default or condition for termination. The terms of this
paragraph may not be modified, amended or terminated except in
writing signed by the Lenders. Lessor has been made aware that
Lessee has entered, or may enter into a certain loan agreement and
such lender shall be considered the Lender for purposes of this
paragraph and is, together with its successors and assigns, intended
third party beneficiaries hereof and any notices to any Lenders
required or desired to be given hereunder shall be directed to such
lender, or Lessee shall designate in writing or at such other address as
such party shalt specify.
8. G1!1VM per W Approvals and Compliance. During
the Term, Lessee will make reasonable efforts to comply with all
applicable laws affecting Lessee's use or occupancy of the Leased
Space, the breach of which might result in any penalty on Lessor or
forfeiture of Lessor's title to the Leased Space. Lessee will not
commit, or suffer to be committed, any waste on the Leased Space.
Lessor agrees to fully cooperate with Lessee in order to obtain the
necessary permits for construction and use of the Leased Space for a
communications tower (the "Tower") site, including, but not limited
to, zoning approvals/permits and building permits. Lessor agrees not
to take any action that may adversely effect Lessee's ability to obtain
all of the necessary permits required for construction of the site.
Lessee will obtain any necessary governmental licenses or
authorizations required for the construction and use of Lessee's
intended Tower and other structures on the Leased Space and will
furnish copies of same to Lessor as same are issued.
9. Assignment and Subleasing, Lessee may sublet all or
part of the Leased Space or may assign or transfer this Lease in whole
or in part without Lessor's consent. Upon such assignment, Lessee
shall be relieved of all future performance liabilities and obligations
under this Lease,
10. Notices. All notices, demands, requests, consents,
approvals and other instruments required or permitted to be given
pursuant to this Lease will be in writing, signed by the notifying
party, or officer, agent or attorney of the notifying party, and will be
deemed to have been effective upon delivery if served personally,
including but not limited to delivery by messenger, overnight courier
service or by overnight express mail, or upon posting if sent by
registered or certified mail, postage prepaid, return receipt requested,
and addressed as follows:
To Lessor: David S. Whitacre
7254 North Frederick Pike
Cross Junction, VA 22625
Phone # - (540) 888-3216
To Lessee: SBA Properties, Inc.
One Town Center Road
Third Floor
Boca Raton, Florida 33486
Attn: Site Administration
Phone # - (561) 995-7670
The address to which any notice, demand, or other writing may be
delivered to any party as above provided may be changed by written
notice given by the party as above provided.
f
11. Lessee LWrovements. Lessee has the right, at its sole
expense, to make the improvements on the Leased Space as it may
deem necessary, including any improvements necessary for the
construction and operation of the Tower and the other Structures.
lessee will be responsible for the cost of any site preparation work
nrrresary to prepare thr_. T e-?Wdi Space tO s.Ur"PU + the Stru uses. All
Lessee's improvements, including but not limited to the Tower,
prefabricated buildings, generators, fencing, and any other Structures
will remain the property of Lessee. The Tower and Structures may
be used for the transmission, reception and relay of communication
signals, including, without limitation, radio frequency signals. Upon
termination of this Cease, Lessee will, to the extent reasonable,
restore the Leased Space to its original condition at the
commencement of this Lease, except for ordinary wear and tear and
damages by the elements or damages over which Lessee had no
control. Lessee and Lessor agree that it will not be reasonable to
require Lessee to remove any improvements contemplated hereunder
which are permanent in nature, including but not limited to,
foundations, footings, concrete, paving, gravel, vegetation and
utilities.
12. lnsuranee. Lgssge - Lessee, at all times during the
term(s) of this Lease, will maintain in full force a comprehensive
public liability insurance policy covering all of its operations,
activities, liabilities and obligations on the Leased Space, having
limits not less than One Million Dollars ($1,000,000). On or before
the commencement date, Lessee will give Lessor a certificate of
insurance evidencing that such insurance is in effect. Lessee shall
deliver to Lessor a renewal certificate evidencing that such insurance
is in effect within ten business days of Lessor's request for such
certificate. The insurance policy shall be issued by an insurance
company authorized to do business in the state in which the Leased
Space is located and shall provide thirty days prior written notice to
the Lesser of any cancellation of such policy. Any insurance
required to be provided by Lessee may be provided by a blanket
insurance covering the leased space and other properties by Lessee
provided that such blanket insurance policy complies with all of the
other requirements with respect to the type and amount of insurance.
13. Operating Expense. Lessee will pay for all water,
gas, heat, light, power, telephone service, and other public utilities
furnished to the Leased Space and used by Lessee throughout the
Term hereof; and all other costs and expenses of every kind
whatsoever in connection with the use, operation, and maintenance of
the Leased Space and all activities conducted thereon.
14. Texes. Lessee will pay any personal property taxes
assessed on, or any portion of the taxes attributable to the Structures.
Lessor will pay when due all real property taxes and all other fees
and assessments attributable to the Leased Space. However, Lessee
will pay, as additional Rent, any increase in nal property taxes levied
against the Leased Space which is directly attributable to Lessee's use
of the Leased Space, and Lessor agrees to furnish proof of the
increase to Lessee.
15. Maintenance Lessee will use best efforts to maintain
the Leased Space in good condition and state of repair. Except
insofar as Lessee is made responsible by this Lease, Lessor will
maintain the premises surrounding the Leased Space in good
condition and state of repair.
16. Hard Harmless, Lessor will be held harmless by
Lessee from any liablUty (including reimbursement of reasonable
attorneys' fees and all costs) for damages to any person or any
property In or upon the Leased Space at Lessees invitation, or for
damages to any person or property resulting from the actions of
Revised 06/06/01
Job Cost#/Search Area: 39003-08099/Acorn Hill
Lessee (including damages caused by or resulting from the existence
Of the Structures) on the Leased Space, unless the damages are
caused by, or are the result of, the misconduct or negligence of
Lessor or any of Lessor's agents, servants, emplovees, licensees or
invitees. Notwithstanding any provisions herein to the contrary, it is
understood 4W agreed that all property kept, installed, stored or
maintained in Or L,pon the Leased Space by Lzsscc will ve so
installed, kept, stored or maintained at the risk of Lessee. Lessor will
not be responsible for any loss or damage to equipment owned by
Lessee which might result from tornadoes, lightning, wind storms, or
other Acts of God; provided, however, Lessor will be responsible for,
and agrees to hold Lessee harmless from any liability (including
reimbursement of reasonable legal fees and all costs), for damages to
any person or any property in or upon the Leased Space arising out of
the misconduct or negligence of Lessor or any of Lessor's agents,
servants, employees, licensees or invitees. Except for willful
misconduct, neither Lessor nor Lessee will in any event be liable in
damages for each other's business loss, business interruption or other
consequential damages of whatever kind or nature, regardless of the
cause of the damages, and each party, and anyone claiming by or
through them, expressly waives all claims for the damages.
17. Termination .Rights;
(a) Lessee may terminate this Lease, at its option,
after giving Lessor not less than sixty (60) days prior written notice
to cure, if; (i) any governmental agency denies a request by Lessee
for a permit, license or approval which is required for Lessee to
construct or operate the Structures on the Leased Space or any such
Permit is revoked; (ii) Lesser determines that technical problems or
radio interference problems from other antennas or from nearby radio
transmitting facilities, which problems cannot reasonably be
corrected, impair or restrict Lessee from using the Leased Space for
Lessee's intended purpose; (iii) Lessee determines that it does not
have acceptable and legally enforceable means of ingress and egress
to and from the Leased Space; (iv) Lessor does not have legal or
sufficient ownership of or title to the Leased Space or Premises or the
authority to enter into this Lease; (v) utilities necessary for Lessee's
contemplated use of the Leased Space are not available; (vi) the
Leased Space is damaged or destroyed to an extent which prohibits or
materially interferes with Lessee's use of the Leased Space or
Lessee's equipment and attachments thereto; (vii) the Premises now
or hereafter contains a Hazardous Material; (viii) Lessee is unable to
obtain a Subordination, Non -disturbance and Attomment Agreement;
(ix) a material default by Lessor occurs; (x) Lessor fails to perform
any of the material covenants or provisions of this Lease or if any
representation or warranty contained herein is found to be untrue;
(xi) the Leased Space is the subject of a condemnation proceeding or
taking by a governmental authority, or quasi -governmental authority
with the power of condemnation, or if the Leased Space is transferred
in lieu of condemnation (rent will be abated during the: period of
condemnation or taking); (xii) the use of the site will not sufficiently
benefit Lessee economically or commercially; (xiii) if Lessee
determines, in its sole discretion, that it will not be viable to use the
site for its intended purpose; or (xiv) if Lessee determines, in its sole
discretion, that it will be unable to use the site for any reason, in the
event of termination by Lessee or Lessor pursuant to this provision,
Lessee will be relieved of all further liability hereunder. Any rental
fees paid prior to the termination date will be retained by Lessor. in
the event Lessor fails to perform its obligations under this Lease for
any reason other than Lessee's breach, Lessee may pursue all
remedies available at law and in equity. Lessor hereby acknowledges
that Lessee will incur significant expenses in reliance on this Lease
and therefore agrees to pay Lessee for all consequential damages
which Lessee will suffer as a result of Lessor's breach.
(b) Lessor may only terminate this Lease, at its
option, in the event of a material default by Lessee or Lessee's failure
to pay Rent when due, which default or failure is not cured within
sixty (60) days after Lessee's receipt of *Titter notice of such default
or failure. No such failure to cure a material default, however, will
be deemed to exist if Lessec has commenced to cure such default
within said period and provided that such efforts are prosecuted to
completion with reasonable diligence. Delay in curing a material
default will be excused if due to causes beyond the reasonable
control of Lessee.
18. &40101 . During the Term, neither Lessor, nor its
successors or its assigns, will use or suffer or permit another person,
corporation, company, or other entity to use the Premises or any
adjacent parcel of land now or hereafter owned, leased or managed
by Lessor, its successors or assigns, for the uses permitted herein or
other uses similar thereto.
15. Bindine on Successors. The covenants and conditions
contained herein will apply to and bind the heirs, successors,
executors, administrators and assigns of the patties hereto. Further,
this Lease will run with the land and all subsequent purchasers will
be subject to the terms and conditions specified herein.
24. Acem to Leased Suace/Pretnises, Lessee shall have
at all times during the Term the right of access to and from the
Leased Space and all utility installations servicing the Leased Space
on a 24 hours per day/7 days per week basis, on foot or by motor
vehicle, including trucks, and for the installation and maintenance of
utility wires, cables, conduits and pipes over, under and along the
right-of-way extending from the nearest accessible public right -of-
way -
21. Governing Law, The parties intend that this Lease
and the relationship of the parties will be governed by the laws of the
State in which the Leased Space is located.
22. Entire Agreement, All of the representations and
obligations of the parties are contained herein, and no modification,
waiver or amendment of this Lease or of any of its conditions or
provisions will be binding upon a patty unless in writing signed by
that party or a duly authorized agent of that party empowered by a
written authority signed by that party. The waiver by any patty of a
breach of any provision of this Lease will not operate or be construed
as a waiver of any subsequent breach of that provision by the same
party, or of any other provision or condition of the Lease.
23. Survey and Testing. Lessee will have the right during
the term of this Lease (and the Option Period, if applicable) to
survey, soil test, and make any other investigations necessary to
determine if the surface and subsurface of the Leased Space are
suitable for construction and operation of the Tower and other
Structures. If Lessee, prior to completion of the Structures
determines that for any reason the surface or subsurface of the Leased
Space is not suitable to construct and operate the Tower or other
Structures, this Lease, upon written notice given to Lessor prior to
completion of the Structures will become null and void; provided that
at Lessee's sole expense the Leased Space will be promptly restored
to the extent contemplated by the Lessee Improvements section above
and provided further that Lessee will deliver copies of all soil tests
and investigation reports to Lessor.
24. Oil, GIs and Mineral Rights, Lessor does not grant,
lease, let or demise hereby, but pxpressly excepts and reserves here
from all rights to oil, gas and other minerals in, on or under and that
might be produced or mined from the Leased Space; provided,
however, that no drilling or other activity will be undertaken on or
Revised O1J06/O1
Job Cust#/Search Area: 39003-08099/Acorn Hill
beneath the surface of the Leased Space or Easement Area to recover
any oil, gas or minerals. This Lease is given and accepted subject to
the terms and provisions of any valid oil, gas and mineral lease
covering the Leased Space or any part thereof, now of record in the
office of the County Clerk, provided, however, that any future oil,
gas or mineral lease covering the above-described lands or any part
thereof will be in all respects subordinate and inferior to th rights,
privileges, powers, options, immunities, and interests granted to
Lessee under the terms of this Lease.
25. Hazardous Waste.
(a) The term Hazardous Materials will mean any
substance, material, waste, gas or particulate matter which is
regulated by the local governmental authority where the Leased
Space is located, the State in which the Leased Space is located, or
the United States Government, including, but not limited to, any
material or substance which is (i) defined as a "hazardous waste,"
"hazardous material," "hazardous substance," "extremely hazardous
waste," or "restricted hazardous waste" under any provision of state
or local law, (ii) petroleum, (iii) asbestos, (iv) polychlorinated
biphenyl, (v) radioactive material, (vi) designated as a "hazardous
substance" pursuant to Section 311 of the Clean Water Act, 33
U.S.C. '1251 et seq. (33 U.S.C. 'I317), (vii) defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and
Recover Act, 42 U.S.C. '6901 et seq. (42 U.S.C. '6903), or (viii)
defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and
Liability Act. 42 U.S.C. '9601 et Seq. (42) U.S.C. '9601). The term
Environmental Laws will mean all statutes specifically described in
the foregoing sentence and all applicable federal, stage and local
environmental health and safety statutes, ordinances, codes, rules,
regulations, orders and decrees regulating, relating to or imposing
liability or standards concerning or in connection with Hazardous
Materials.
(b) Lessor represents and warrants that, to the best of
Lessor's knowledge, (i) the Leased Space has not been used for the
use, manufacturing, storage, discharge, release or disposal of
hazardous waste, (ii) neither the Leased Space nor any part thereof is
in breach of any Environmental Laws, (iii) there are no underground
storage tanks located on or under the Leased Space, and (iv) the
Leased Space is free of any Hazardous Materials that would trigger
response or remedial action under any Environmental Laws or any
existing common law theory based on nuisance or strict liability. if
any such representation is in any manner breached during the Term
of this Lease (collectively, a "Breach"), and if the Breach gives rise to
or results in liability (including, but not limited to, a response action,
remedial action or removal action) under any Environmental Laws or
any existing common law theory based on nuisance or strict liability,
or causes a significant effect on public health, Lessor will promptly
take any and all remedial and removal action as required by law to
clean up the Leased Space, mitigate exposure to liability arising from,
and keep the Leased Space free of any lien imposed pursuant to, any
Environmental Laws as a result of the Breach.
(c) In addition, Lessor agrees to indemnify, defend
and hold harmless Lessee, its officers, partners, successors and
assigns from and against any and all debts, liens, claims, causes of
action, administrative orders and notices, costs (including, without
limitation, response and/or remedial costs), personal injuries, losses,
attorneys' fees, damages, liabilities, demands, interest, fines,
penalties and expenses, consultants' fees and expenses, court costs
and all other out-of-pocket expenses, suffered or incurred by Lessee
and its grantees as a result of (a) any Breach, or (b) any matter,
condition or state of fact involving Environmental Laws of
Hazardous Materials which existed on or arose during the term of
this Lease and which failed to comply with (i) the Environmental
Laws then in effect or (ii) any existing common law theory based on
nuisance or strict liability.
(d) Lessor represents and warrants to Lessee that
Lessor has received no notice that the property or any part thereof is,
and, to the best of its knowledge and belief, no part of the Premises is
located within an area that has been designated by the Federal
Emergency Management Agency, the Army Corps of Engineers or
any other governmental body as being subject to special hazards.
(e) The covenants of this Section will survive and be
enforceable and will continue in full force and effect for the benefit
of Lessee and its subsequent transferees, successors and assigns and
will survive the term of this Lease and any renewal periods thereof.
26. Mechanic's jWd Landlord's Llem Lessee will not
cause any mechanic's or materiaiman's lien to be placed on the
Leased Space, and Lessee agrees to indemnify, defend and hold
harmless Lessor from any such lien from a party claiming by, through
or under Lessee. Additionally, Lessor disclaims and waives any now
existing or hereafter arising Landlord's lien or other statutory or non -
statutory lien or security interest in Lessee's and/or its sublessees'
communication facilities, equipment, improvement, fixtures or other
property.
27. Headings. The headings of sections and subsections
are for convenient reference only and will not be deemed to limit,
construe, affect, modify or alter the meaning of the sections or
subsections.
28. Tim of Essence. Time is of the essence of Lessor's
and Lessee's obligations under this Lease.
29. Severabilitv. If any section, subsection, term or
provision of this Lease or the application thereof to any party or
circumstance will, to any extent, be invalid or unenforceable, the
remainder of the section, subsection, term or provision of the Lease
or the application of same to parties or circumstances other than
those to which it was held invalid or unenforceable, will not be
affected thereby and each remaining section, subsection, term or
provision of this lease will be valid or enforceable to the fullest
extent permitted by law.
30. Real Estate Broker. Lessor represents and warrants
that Lessor has not signed a listing agreement, dealt with or otherwise
agreed to pay a broker's commission, finder's fee or other like
compensation to anyone in connection with the lease of the Leased
Space or the transaction contemplated by this Lease and Lessor
agrees to indemnify and hold Lessee harntless from and against any
such claims or costs, including attorneys' fees, incurred as a result of
the transaction contemplated by this Lease.
31. Further Assurances. Each of the parties agrees to do
such further acts and things and to execute and deliver the additional
agreements and instruments (including, without limitation, requests
or applications relating to zoning or land use matters affecting the
Tower or other Structures) as the other may reasonably require to
consummate, evidence or confirm this Lease or any other agreement
contained herein in the manner contemplated hereby. If Lessor fails
to provide requested documentation within thirty (30) days of
Lessee's request, or fails to provide any Non -Disturbance Agreement
required in this Lease, Lessee may withhold and accrue the monthly
rental until such time as all such documentation is received by
Lessee.
32, Right to Register or Record. Lessee may request that
Lessor execute a Memorandum of Option and Land Lease,
Memorandum of land Lease or Short Form of Lease for recording in
5
Revised 05/06/01
Job CostNISearch Area: 39003-08099/Acorn Hill
the public records. Lessor agrees and authorizes Lessee to attach
and/or insert a certified legal description of the Leased Space, once
complete, to the Memorandum of Land Lease and record same in the
public records.
33. Interpretation. Each party to this Lease and its
counsel have reviewed and had the option to revise this Lease. The
normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party will not be employed in the
interpretation of this Lease or of any amendments or exhibits to this
Lease.
34, Condemnation. Lessor shall fully advise Lessee in a
timely manner of all condemnation proceedings or prospective
condemnation proceedings in order that Lessee may fully protect and
prosecute its rights and claims relating to the Leased Space. If the
whole of the Leased Space shall be taken or condemned by, or
transferred in lieu of condemnation to, any governmental or quasi
governmental authority or agency with the power of condemnation
during the initial Option Period, Additional Option Period or Term of
this Lease, Lessee shall be entitled to any award based upon its
leasehold interest as set forth in this Lease, along with the value of all
Lessee's improvements, including, but not limited to, the Tower,
prefabricated buildings, generators, fencing and any other Structures
and for all of Lessee's other personal property, trade fixtures,
fixtures, moving expenses, business damages, business interruption,
business dislocation, prepaid Rent or other losses or expenses as may
be incurred. In the event only a portion of the Premises, which
portion does not include the whole of the Leased Space, shall be
taken or condemned by, or transferred in lieu of condemnation to any
governmental or quasi -governmental authority or agency with the
power of condemnation during the Initial Option Period, Additional
Option Period or Term of this Lease, Lessee shall have the option to
either: (1) terminate this Lease; or (2) continue in possession of the
property pursuant to the terms of this Lease with a proportionate
reduction in Rent equal to that portion, if any, of the Leased Space so
taken, condemned or transferred in lieu of condemnation. In either
event, Lessee shall be entitled to any award based upon its leasehold
interest in the portion of the Premises condemned, taken or
transferred in lieu of condemnation, along with the value of all
Lessee's improvements, including, but not limited to, the Tower,
prefabricated buildings, generators, fencing and any other Structures
and for all of Lessee's other personal property, trade fixtures,
fixtures, moving expenses, business damages, business interruption,
business dislocation, prepaid Rent or other losses or expenses as may
be incurred. Nothing contained herein shall prohibit Lessee from
making its own claims against any condemning authority for any
losses or damages Lessee shall incur as a result of a condemnation, or
sale in lieu of condemnation, of the whole or any portion of the
Premises.
35. Rich( of First Refusal' If at any time during the term
of this Lease, Lessor receives an irrevocable (except such offer may
be conditional upon the non -exercise of this right of first refusal)
bona fide written offer from a third person ("Offer") to sell, assign,
convey or otherwise transfer its interest in the Leased Space and/or
Premises, which Lessor desires to accept, Lessor shall first give
Lessee written notice (including a copy of the proposed contract) of
such Offer prior to becoming unconditionally obligated. Lessee shall
have a period of thirty (30) days after receipt of Lessor's notice and
terms to accept the Offer and exercise its right of First Refusal by
notifying Lessor in writing. After thirty (30) days the Offer will be
deemed rejected.
36. Dak of mpg, The parties acknowledge that certain
obligations of Lessor and Lessee arc to be performed within certain
specified periods of time which are determined by reference to the
date of execution of this Lease. The parties therefore agree that
wherever the term "date of execution of this Lease," or words of
similar import are used herein, they will mean the date upon which
this Lease has been duly executed by Lessor and Lessee whichever is
the later to so execute this Lease. The parties further agree to specify
the date on which they execute this Lease beneath their respective
signatures in the space provided and warrant and represent to the
other that such a date is in fact the date on which each duly executed
his name.
COMMENCEMENT DATE: The date that Lessee exercises its
Option,
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the last day and year specifled belo
LESSOR: David.S. Whitacre
%% LESSEE: S13A Properti , Inc., a orida corporatio
By; GLr/By:
David S. Whitacre Alyssa Houlihan
Title: Owner Title: Director of Leasing
Date: 2 i Y.;20�� %�,! Date:{/oZ�i/6
Witnessk Weyz- Witness:
Print Name
Witness: �r�
Print Name %� �• VAAjC-G
Notary Public:
I do hereby certify that David S. Whitacre, who is personally
known to me, or who has proved by sufficient evidence to be
the person named herein, personally appeared before me this
day and acknowledged the due execution of the foregoing
instrument.
Witness my hand seat this ( day of
i� 200.
`Notary Signature
7-3,►-vL
1fr�f�T�
Notary Public:
I do hereby certify that Alyssa Houlihan, who is
personally known to me, or who has proved by sufficient
evidence to be the person named herein, personally
appeared before me this day and acknowledged the due
execution of the foregoing instrument.
Wits my hand and sA this � day of
Notary Signa
6
Revised 06/06/01
Job Costly/Search Area: 39003-08099/Atom 11it1
`�, SM118 J Linton
*�*MYCommission t�t485
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Current Sketch/Survey of the Leased Smace githin the Premises
(Lessor and lessee agree that a leased area legal description and access and utility casement can be substituted as soon as it becomes available).
Fzz t --.*
Lessors Initials �S
Revised 06/06/010r Lessee's Initials T
Job ('ost#1Searcl Area: 39003-08099/Acorn Hill i G I 11\1'A
L [��j/jJ/I/J
E'XMRIT B
1--y—' De-- -h; i
Attach Legal Description from Decd
ti essor and t.essee agree that a teased area legal description and access and utility easement can be substituted as soon as it becomes available).
��gp8r�039O
molts Drib or CUT, made this JULdry of oetA.r ,
1093, between. FUM L. ifE(1TUM and JWINM W=V.CRE, his
Vito, of the ons Parti, boroineiter called the Grantors, DAYW
0. Mlf2rAmt of the other part, h"fter called the Grantee.
1t14'lPE 5"111 that in consideration of the love a"
affection the Granton .bear for the Grantee, the Grantors do
graft with general varranty and, except u stated below,
spglimh oovonanta of title, and assigns to ttu Grantee, in fee
simple the fallowing described property, towitt
All that certain tract of land, togathar with the
improvquentd thereon and appurtensnoes thereunto
be . situated about one Prix* „o;+A of Cross
JWfot in aainsaborc Magisterial District, rrederick
county, Virginia, containing 62.4 acres, more or Is", and
identified as Parcel I$ -A-28 on tba Tax mpg of yrsderiok
eoUnty, 'Virginia# and being all of the remaining roil
estate conveyed to rradk L. Whitson by treed of Us N.
uhitamn, at ux, slated December AO 1447, and retarded in
the Cierk16 Office of the Circ26 Court of rradariak
CottntY, Yixptinia, in Deet! gook. 002, at Raga 497.
Thio conveyance is made subject to all 4uly s000rded and
Wforceable restrictions, resewstions, "*&sante and rights of
mty.
Revised 06/06/01
Job Cost#/Scareh Area: 39003-08099/Atom Hilt
8
�Pei f R6 �
Lessor's lttiriaisAra-1
Lessee's initials
Triton Communications
Search Area Map
Search Ring ID. WC a 947
Search Ring Name: F Acorn Hill
Latitude: N
Search Ring Released:
Phase#
SR in Design F I
Longitude: 078 1s 03.4 W
Quad Map: GORE Ground Elevation (ft)(AMSL):
Site Objective:
Antenna Height (ft)(AGL):
1000 , 990 , 1000.
200 , 180 , 220
Target Height ( min , max )
o provide in -car coverage to Rt 522 near the town of Cross Junction and Acorn Hill.
RF Comments
Potential Candidate in Ring.-
Existing
ing:Existing Structure: �— Raw Land l
RF Engineer. Michael Mahoney
AL
WFI Submitted: Date:Triton Accepted: Accepted: Date: 1191
SA Received: Date:
8/3/00 0438 PM Prepared By- WFI
h
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lits
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• 1� 77� -..} r"- r y.� ,moo '
Name: GORE Location: 039' 19' 14-5' N 078' 19'02.6' W
Date: 7/30/2001 Caption: Acorn Hill
Scale: 1 inch equals 1000 feet
Hwy 522 Proposed SunCom ATT Network
ENGINEERS, INC.
December 20, 2001
Mr. Mark R. Cheran
Planner I
Department of Planning and Development
County of Frederick
107 North Kent Street
Winchester, VA 22601
Re: Acorn Hill
File: 30256.001
Dear Mr. Cheran:
On December 18 and 19, 2001, Pete Wolf and Joe Iacovone visited a total of fifteen historical sites within
a one mile radius of a proposed 199 -foot monopole located at 7185 North Frederick Pike, Cross Junction,
Virginia. The historical significance of these sites is undetermined at this time, however their locations
were obtained by research conducted by Pete Wolf at the State Historical Preservation Office located in
Richmond, Virginia. In order to determine if the proposed tower would be visible from the historic sites, a
six foot diameter helium balloon was floated to 199 feet and a digital photo was taken. The proposed
tower would be visible from five of the referenced sites. The view of the proposed tower from ten of the
sites appears to be obscured.
If you have any questions, or need further information, please don't hesitate to contact me at (804) 559-
2290 or email me at wolfpr@obg.com. Thank you and we appreciate your help in this matter.
Very Truly Yours,
O'BRIEN & GERE ENGINEERS, INC.
lzlz, -,�s 16�
R. Peter Wolf
cc: Joe Iacovone
Pete Wolf
O'Brien & Gere Engineers, Inc., on O'Brien & Gere company
7502 Lee Davis Road / Suite 22 / Mechanicsville, VA 23111
(804) 559-2290 / FAX (804) 559-2207 • http:// www.obg.com
... and offices in major U.S. cities
nr nl M1nlnnnl�m,r,l�l r.,_.,
McGuireWoods LLP
1750 Tysons Boulevard
Suite 1800
McBean, VA 22!02-42!5
Phone: 703.712.5000
Fax: 703.712.5050
www. mcgu i rewoods. com
David C. Stewart
Direct: 703.712.5433
February 11, 2002
VIA FACSIMILE AND HAND DELIVERY
Eric R. Lawrence, AICP
Deputy Director, Department of Planning and Development
County of Frederick
107 Worth Kent Street
Winchester, VA 22601
dstewart@mcguirewoods.com
Direct Fax: 703.712.5293
RE: Conditional Use Permit #02-02, Acorn Hill Tower Telecommunications Facility
Dear Mr. Lawrence:
On behalf of my clients, Triton PCS (d.b.a. SunCom AT&T) and SBA Properties, Inc., I
am writing to provide written confirmation of the verbal representations we have made to
members of staff and the Board of Supervisors during the past few months regarding availability
of tower space for Frederick County emergency communications equipment. Space will be
made available to the County free of charge on the above -referenced telecommunications
facility for installation and operation of Frederick County emergency communications
equipment.
Please call me if you have any questions regarding this matter.
Sirtcerely,
\\�
David C. Stewart
cc: Mr. Dale Finocchi, SunCom AT&T
\\REA\104902.1
E B 13 2002
McGuire Woods LLP
1750 Tysons Boulevard
Suite 1800
McLean, VA 22102-4215
Phone: 703.712.5000
Fax: 703.712.5050
www.mcguirewoods.coni
David C. Stewart
Direct: 703.712.5433
February 13, 2002
VIA HAND DELIVERY
Eric R. Lawrence, AICP
Deputy Director, Department of Planning and Development
County of Frederick
107 North Kent Street
Winchester, VA 22601
dstewart@ mcgui rewoods.com
Direct Fax: 703.712.5293
RE: Request for Deferral of Board of Supervisors Hearing for
Conditional Use Permit #02-02, Acorn Hill Tower Telecommunications Facility
Dear Mr. Lawrence:
On behalf of my clients, Triton PCS (d.b.a. SunCom AT&T) and SBA Properties, Inc., I
am writing to request an indefinite deferral of the above -referenced application.
Thank you for your attention to this matter and please call me if you require any
additional information.
Si cerely,
David C. Stewart
cc: Mr. Dale Finocchi, SunCom AT&T
\\REA\101058.3
E B 13 �oo�
9FPT: OF PI PNNIN� P.'PI.QPMFN"'
DLC -14-2001 14:1b SIBR,INC. 561 995 7678 P.04/08
To:
AVIATION SYSTEMS, INC.
(310) 378-3299 FAX: (310) 791-1546 .'
asl@aviationsystems.com
www.aAationsystems.com ;
FAR PART 77 AIRO- dE (%PTRO�i�-p
Rebecca Carabal/o
SBA Network Services, Inc
S900 Broken Sound Parkway NW
Boca Alaton, FL 33487
Ilw4ro• �er..s b R1 1aJ GV200
_ ti'+t)7V7
Location: Ao rn, HIII VA
Client Case No.: y680. 91,Acorn HIII
ASI Case No.:
SUMMARY OF FINDINGS.,
There are no federal aviation regulatory or operatlonal factors affecting this stte and proposed structure. At this
location any structure over 200 feet AGL will haVe to be filed with the FAA. A oucture up to 500 feet AGL should
receive a routine approval. Refer to Findings and Comment Section for.additional information.
SITE DAT):
Proposed Structure: Antenna Tower
Coordinates: 390 —19' — 33.04" /078' - 18' —1 ti 28" [NAD 27)
39 • — -19'-=-U.40" /07$ • — 18' 15.30- [NAD 831
Site Ground Elevation: 969' [AMSC]
Studied Structure Height (With Appurtenances): 199' [AGLI
Total Overall Height: 1168' [AMS -1-1
SEARCH MMULTS:
•
The nearest public use or mil' gill subiect to EAR part 77 ' gnche 'ter R anal.
• The studied structure is locats!j_12-00-NM/ 7jr 759 eet Northwest 3 'True of the cheater Re ion Alr ort
Runway 14.
• Other Putllc OLPlivate Aborts or ddii)Owithin 3 NM: one ClPrihtout a ted
• AM Radio tatiQnis} within 3 NM: 6a None I�PNntout attached
Hi h " hted AM station if an on Orintout MMgnLnoticunderMQ Rules an ' Pnlic (Ref.: 47 CFR § 73.16!92).
DEC -14-2001 14:16 SBA,INC.
5b1 yJ5 YbYu F. U:>/ d
ASI Case No: 01-P-7557.549
FINDINGS
• SAA Notice (Ref_: FAR 77.13 (a)MI FAR 77.13 le)(2) i ii. III)
M Not required at studied heipht
[1Re❑uired at studied height
�j The No Notice Maximum height is 200 feet AGL
IMPORTANT: Our report is intended as a planning tool. If notice is required, actual site construction activities
are not advisable until an FAA Final Determination to laguod.
. Obstruction 3tandarde of FAR Part 77 (Ret.: PAR 77.23_(0,)(1),(2).(3),fa s
Not exceeded 8t studied height.
Q Exceeded at studied heipht and Extended St �dy rnav be raaulred
Maximum nonexceedance height Is 500 feet AGL
• Marking and Ughtinn (Rot. AC 70/7480-11C.ChanAe 1)•
® Will not be required. (See Comments)
❑ Will be required at studied height, structure exceeds:
❑ 200 feet AGL
Ll Obstruction %an0a1gs
• Operational ProcedurOS (Ref.: FAR 77.23 (a) (3),(4); FAA Order 7400.2; FAA Order 8260.3e)
Not; at studied height (EM should issue a Determination of No Hszard,)
El Affected at studied height
a d the FAA
will Consider the studied Structure
to b
a Hazard to Air Navigation.
RMaximUm height that would
not of get operational
procedures is
feet AGIJ
feet AMSL, (See Comments)
'on,clusions/Comments:
For your planning purposes, thin site has been evaluated at your requested height plus an adclitional
height up to and including 500' AGL. Proposed structures that would�exceed'S00' AGL require the
FAA to conduct detailed extended studies and circularize the proposa) for industry comment.
Structures above 500' AGL may be impacted by helicopter low-level rqutps, fixed -wing aircraft
flyways, minimum vectoring altitudes, minimum enroute altitudes and other operational procedures.
ASI studies for structures above 500' AGL should be separately requested.
FAA Eastem Region May require lighting/marking of this structure because of its proximity to a major
roadway.
Actions:
ASI will file with AEA FAA Revion and Stale1K Yes n Na
DEC -14-2001 14:17
Plaose Yvpe or AInt on This
Iu,a vePVM#V er rr-MWt&6W Fi
SBA. INC
561 995 7670 P.06i08
Form Approved OMB No. Z120.0001
ro to Provide All Requested /formation May Delay Processing of YouNotice FOR FAA USE
Notice of Proposed Construction or Alteration Aara+ebli,lswdy
1. Sponsor (porson, company, eta proposing this ecdon):
Attn. Of: Ed Roach / VAI3099/Atom Hill
SBA Network Services, Inc.
5900 Broken Sound Parkway NW
Baca Raton, FL 33487
(581)226-9258 tax (561) 989-2974
2. Sponsor's Representative (if other than #1):
Attn. Of: Gary Allen -7557,549
Aviation Systerns, Inc,
23430 Hawthorne Boulevard, Suite 200, Bldg, 3
T crrence, CA 905054720
(310) 378-3299 fax (310) 191 -1546
3. Notice of. ® New Construction ❑ Alteration ❑ Existing
4_ Duration: ® Permanent ❑ Temporary (_ months, _ days)
5. work 3Chodutc: Beginning: ASAP End:
8_ Typo: Z Antenna Tower ❑ Crane ❑ Building ❑ Paurer Line
U Landfill ❑ Water Tank ❑ Other
7_ Marking/Painting and/or Lighting Preferred:
❑ Red Lights and Paint ❑ Dual -Red and Medium Intensity While
❑ White- Medium lrnenshy ❑ Dual- Red and High Intensity White
❑ While- High Intensity 0 Other. NONE(Dual-M If Required
8. FCC Antenna Structure Registration Number (if applicable);
9. Latitude: 390-19'-33-41V
10. Longitude: 078°-18'-15.30"
11. Datum: ® NAC) a3 [j NAD 27 ❑ Other
12. Nearest City: Acorn Hill Stale: VA
13. Nsor"t Ptrb/ic-Use (not pdvete-vse) or Military Airport or Heliport:
Winchester Regional
14. Dtsfsnce from 013. to Stnrcturs: 12.80 NM
15. Direction from #13. to Structure: Northwest
16, 5tto Eleve5on (AMSL): 969 Ft.
17. Total Structure Haight (AOL): 199 Ft -
18. Overall
L18.Overall Height (916 +#17) fAMSQ 1168 Ft,
10. Preview FAA Aaronautisal Study Number (if applIcsble);
-OE
20. Deserlption of Location: (ANach a USGS 7.a minute Quadrangle Map
with the pnXise site rnerked and any certifrad survey)
*Map attached. Name in title block is that of the USGS Qued map on
which the site is located. f
21. Complote Description of Proposal: FrequencylPower (KW)
*Plema send copies of all documents partslaing to this notice (lacludln; the Letter
of Ael)towledeemept) to our repr"rutative listed in Block 2 Above. For your 18'50 — 1865 MHz 30 Watts
* 1930 —1945 MHz 30 Watts
* If FAA determines that Ai tber aeronautical study is requited by this Transmittal we
hereby requcst Such emdy_*
Certified Survey Attached
01-P-7557.549
Notics is required by 14 Code of Federal Regulations, part77 punuant to 48 U.S,C„ Semon 44719. Per%ons 0 knowingly and willingly Violate the not
requirements of part 77 are subject no a civil penalty of $1,000 per day until the notice Is resolved, pursuant to 49 U.S.C.. Section 40301 (a).
1 horoby cerflfy that all of the above statomems made by me ars true, comp1e40, and correct to the bast of my knowledge. In addition, I agree to
and/or tight the structure In accordance with establlshod marking b fighting sUndards an necoseary.
Mata Typed or Prinlad Name and tie of Parson Flling tJatiap S yrs ro
December 14, 2001 Edward G. Roach. Director of Compliance„
FAA Form 7460-1 (11-98) Supersedes Prevloua Edl6on NSN: 0062-00-012-008
DEC-14-2001 14:1'e SBH, 1NC. 5b1 yy5 '(b'(U f'.1?(/UU
DEC. -14-;20b1 14; ld 51JHr 1NU, 561 yy5 YUM H. db/bb
12/13/2001
------------------------------------------
Input
Horizontal: NAD 83 Geographic
OutDut
Horizontal: NAD 27 Geographic
Name Input ----------------- ---------,-----
Output
Acorn Hill 39 19 33.40000 N 39 19 33.03807 N
78 1B 15.30000 W 78 18 16.28].45 w
Datum Shift(m) Delta Lat. = 11.162
Delta Lon. _ -23.508
U.S. Army Topographic Engineering Centex, Corpscon 5 11 08, page 1~