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12/18/2001 e e e 5. 6. e 7. e CITY OF MONROE CITY COUNCIL MEETING 300 W. Crowell Street, Monroe, NC 28112 December 18, 2001 - 6:30 p.m. AGENDA CONSENT AGENDA 1. Minutes of Regular City Council Meeting of December 3,2001 Minutes of Economic Development Commission Meetings of August 2, 2001, September 6, 2001, October 4,2001 and November 1,2001 Minutes of Airport Commission Meetings of August 6, 2001 and September 17, 2001 2. Call for Public Hearings to be Held January 15,2002 A. Project # 02-130-00007 - Zoning Map Change Request - G-I (General Industrial) to B-3 (Highway Business) - 1.483 Acres Located at 1631 Lynn Street - Joe Mitchum and M & J Properties - Tax ill # 09-188-101 B. Project # 02-100-00001 - Conditional Use Permit Request - Request to Develop a 19 Unit Apartment Complex on 2.61 Acres Located on Wilkes Drive Between Monticello Drive and Highway 601 - Browning & Burnette, LLC - Tax ill #s 09-223-013 and 09-223-015 3. Information Systems - Award of Contracts A. V oiceMail System and Remote Fiber Expansion Cabinet - Sprint B. Interactive Voice Response (IVR) System - Selectron, Inc. 4. Airport Contracts A. Flight Training Provider - Airport Facility Lease Agreement, Second Reading B. Amendment to Lease - Piedmont Hawthorne, Second Reading C. Amendment to Airport Fixed Base Operators Lease - Piedmont Hawthorne, Second Reading Letter Authorizing NCMP A# 1 to Sell a Portion of Catawba Output if Beneficial for NCMP A# 1 and its Participants Resolution - Procurement of Architectural, Engineering, or Surveying Services for Projects with an Estimated Fee of Less than $30,000 Ordinances A. To Amend Traffic Schedules - Through Trucks B. To Amend Title III, Chapter 31 of the City of Monroe Code of Ordinances C. Petition for Ordinance to Declare Certain Property Unfit for Human Habitation - 411 Pedro Street REGULAR AGENDA 8. Formal Approval of Settlement Agreement (Heaston vs. City of Monroe) 9. Public Hearings A. Project # 01-100-00014 - Conditional Use Permit Request - New Walter Bickett Elementary School - Lancaster Avenue Between Kingswood and Oak Hill Drive - 24.89 Acres - Union 193 e e e e e County Public Schools - Tax ill #s 09-279-043 and 044 (Continued from November 6, 2001 Meeting) B. Project # 02-130-00004 - Zoning Map Change Request - R-20 (Low/Moderate Density Single- Family Residential) to R-lO-SU (Moderate/High Density Single-Family Residential Special Use) - 22.6 Acres on West Side of Old Pageland - Monroe Road - East Village, LLC - Tax ill # 09- 087-016 C. Project # 02-110-00003 - Special Use Permit Request - Request to Develop 65-10t R-I0-SU Subdivision - 22.6 Acres on West Side of Old Pageland - Monroe Road - East Village, LLC - Tax ill # 09-087-016 10. Action from Public Hearings A. Project # 01-100-00014 - Conditional Use Permit Request - New Walter Bickett Elementary School - Lancaster Avenue Between Kingswood and Oak Hill Drive - 24.89 Acres - Union County Public Schools - Tax ill #s 09-279-043 and 044 (Continued from November 6, 2001 Meeting) B. Project # 02-130-00004 - Zoning Map Change Request - R-20 (Low/Moderate Density Single- Family Residential) to R-lO-SU (Moderate/High Density Single-Family Residential Special Use) - 22.6 Acres on West Side of Old Pagel and - Monroe Road - East Village, LLC - Tax ill # 09- 087-016 C. Project # 02-110-00003 - Special Use Permit - Request to Develop 65-1ot R-I0-SU Subdivision- 22.6 Acres on West Side of Old Pageland - Monroe Road - East Village, LLC - Tax ill # 09- 087-016 D. Project # 01-100-00011 - Conditional Use Permit - Accessory Structure With a Home Occupation - 936 Secrest Hill Drive - .923 acres - James Marlow - Tax ill # 09-216-014 (Public Hearing Completed on October 2,2001) 11. Appointment of Delegate and Alternate Delegate to Centralina Council of Governments Board of Directors 12. Other Business A. Naming of Fitness Room at Aquatics and Fitness Center B. Ralph Helms 12-18-01 194 e e e e e CITY OF MONROE CITY COUNCIL MEETING DECEMBER 18, 2001- 6:30 p.m. MINUTES The City Council of the City of Monroe, North Carolina, met in Regular Session in the City Hall Council Chambers, 300 W. Crowell Street, Monroe, North Carolina, at 6:30 p.m. on December 18,2001, with Mayor Judy L. Davis presiding. Present: Mayor Judy L. Davis, Mayor Pro Tern P. E. Bazemore, Council Members Phil Hargett, Billy A. Jordan, Bobby G. Kilgore, Robert J. Smith, City Manager S. Douglas Spell, City Attorney John Milliken, and City Clerk Jeanne M. Deese. Absent: Council Member Lynn A. Keziah. Visitors: Howard Baucom, Sidney Sandy, Kent Bernhard, Larry Helms, Al Diehl, Cofield Hilburn, Don Mitchell, Isabelle Gillespie, Bennie Lindsey, Rob Nunn, Greg Story, Troy Penny, Ralph Helms, Judy Wiggins, Edith Judkins, LaVondra Edwards, David Fencl, Wayne Herron, Jim Loyd, Curtis Boyd, Kathy Boyd, Bob Harvell, Mark Donham, John W. Jones, Bobby Haulk, Bengie Mullis, Mary Nash, Dale Hargett, Wilma Walewski, Richard Browning, Parks Nash Jr., Joyce Nash, and others. Mayor Davis called the Regular City Council Meeting of December 18, 2001 to order at 6:30 p.m. A quorum was present. CONSENT AGENDA Mayor Davis reviewed the Consent Agenda and asked if any member of the Councilor public would like to have any items moved from the Consent Agenda to the Regular Agenda for discussion. Written background infonnation was provided in advance in the Council Agenda Packets for each item on the Consent Agenda. No further discussion was held. One motion and vote was taken, which included approval of all items on the Consent Agenda. Item No. 1. Minutes of Ref!ular City Council Meetinf! of December 3. 2001. Council Member Hargett moved to approve the Minutes of the Regular City Council Meeting of December 3,2001. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: 195 e e e e e Minutes of the Economic Development Commission Meetings of August 2,2001, September 6, 2001, October 4, 2001, and November 1, 2001; and Minutes of the Airport Commission Meetings of August 6,2001 and September 17,2001 were received as information by Council. Item No.2. Call for Public Hearine:s to be Held January 15. 2002. A. Proiect # 02-130-00007 - Zonine: Map Chane:e Request - G-I (General Industrial) to B-3 lHie:hway Business) -1.483 Acres Located at 1631 Lynn Street - Joe Mitchum and M & J Properties - Tax ID # 09-188-101. Council Member Hargett moved to call for a public hearing to be held on January 15, 2002 to consider this request. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: B. Proiect # 02-100-00001 - Conditional Use Permit Request - Request to Develop a 19 Unit Apartment Complex on 2.61 Acres Located on Wilkes Drive Between Monticello Drive and Hie:hway 601 - Brownine: & Burnette. LLC - Tax ID #s 09-223-013 and 09-223- 015. Council Member Hargett moved to call for a public hearing to be held on January 15, 2002 to consider this request. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: Item No.3. Information Systems - Award of Contracts A. Voice Mail System and Remote Fiber Expansion Cabinet - Sprint. IS Director Jones reported by memorandum that the Information Services Department requested an award of contract to Sprint, Inc. for a V oiceMail System and a Remote Fiber Expansion cabinet for the existing PBX. The V oiceMail System will replace the outdated Centigram V oiceMail System, and the remote cabinet will provide fiber connectivity between the existing switch (PBX) and the Operations Center. Staff recommended that a contract in the amount of $59,800 be awarded to Sprint, Inc. for acquisition of hardware, software, and training as a sole source vendor. Funds for. this purpose were included in the FY 2002 budget for the Information Services Department. This recommendation was made under the provisions of N.C.G.S. §143-129(f) citing standardization and compatibility as an overriding consideration. Council Member Hargett moved to award the contract to Sprint, Inc. in the amount of $59,800. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: 196 e e e e e AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: B. Interactive Voice Resnonse aVR) ,Svstem - Selectron. Inc. IS Director Jones recommended by memorandum that a contract in an amount not to exceed $100,000 be awarded to Selectron, Inc. for acquisition of hardware, software, training, and customer services as a sole source vendor. Funds for this purpose were included in the FY 2002 budget for the Infonnation Services Department. This recommendation was made under the provisions ofN.C.G. S. §143- 129( t) citing standardization and compatibility as an overriding consideration. Council Member Hargett moved to award the contract to Selectron, Inc. in an amount not to exceed $100,000. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: Item No.4. Airnort Contracts. Assistant City Manager Donham advised by memorandum that at the December 3, 2001 Council meeting, City Council took action to approve various lease agreements associated with the Monroe Municipal Airport. The lease agreements between Piedmont Hawthorne Aviation and On Eagles Wings Aviation (flight training provider) are considered to be franchises. The City Attorney advised that these lease agreements were considered franchises and therefore required a second reading and action by City Council. A. Flil!ht Traininl! Provider - Airnort Facility Lease Al!reement. Second Readinl!. Council Member Hargett moved to approve the Airport Facility Lease Agreement, Second Reading. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: The Airport Facility Lease Agreement is hereby incorporated as a part of these Minutes as Exhibit HA". B. Amendment to Lease - Piedmont Hawthorne. Second Readinl!. Council Member Hargett moved to approve the Amendment to Lease with Piedmont Hawthorne. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: The Amendment to Lease - Piedmont Hawthorne is hereby incorporated as a part of these Minutes as Exhibit HB". 197 e e e C. Amendment to Airport Fixed Base Operators Lease - Piedmont Hawthorne. Second Readinl!. Council Member Hargett moved to approve the Amendment to Airport Fixed Base Operators Lease with Piedmont Hawthorne. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: The Amendment to Airport Fixed Base Operators Lease - Piedmont Hawthorne is hereby incorporated as a part of these Minutes as Exhibit "C". Item No.5. Letter Authorizinl! NCMPA#l to Sell a Portion of Catawba Output if Beneficial for NCMPA#l and its Participants. Energy Services Director Mitchell reported by memorandum that NCMPA#l issued an RFP in September 2001 to see if there was interest in the wholesale electric market to purchase a portion of the output of the Catawba Plant. There was a very strong response to the RFP and while final analysis has not been completed, it appears that a sell of a portion of output from Catawba for a few years could be financially beneficial to NCMPA#l, City of Monroe, and the other participants. To complete a transaction that would sell a portion of the output for an extended period, NCMPA#l must have authorization from the participants to sell the output and have the contracts for such sells approved by the ElectriCities Board of Directors. NCMP A#l requested that the City Council authorize the sell of output of Catawba by having the Mayor sign and return a letter authorizing such sells. Council Member Hargett moved to authorize NCMP A#l to sell output of Catawba and authorize Mayor Davis to sign and return a letter to NCMPA#l authorizing such sells. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: e Item No.6. Resolution - Procurement of Architectural. Enl!ineerinl!. or Survevinl! Services for Proiects with an Estimated Fee of Less than $30.000. Water Resources Director Colbath recommended by memorandum that City Council adopt a Resolution to exempt City projects from the N.C.G.S. Model Code for Procurement of Architectural, Engineering, or Surveying Services where the estimated fee is less than $30,000. e Council Member Hargett moved to approve Resolution R-2001-62: RESOLUTION OF THE MONROE CITY COUNCIL REGARDING PROCUREMENT OF ARCITECTURAL, ENGINEERING, AND SURVEYING SERVICES WITH FEES LESS THAN $30,000 ARTICLE 3D OF CHAPTER 143 OF THE GENERAL STATUE R-2001-62 198 e e e e e WHEREAS, the General Assembly of North Carolina enacted Article 3D of Chapter 143 of the General Statues which provides in Section 143-64.31 that "It is the public policy of this State and all public subdivisions and Local Governmental Units thereof, except in cases of special emergency involving the health and safety of the people or their property, to announce all requirements for architectural and engineering services, to select firms qualified to provide such services on the basis of demonstrated competence and qualifications for the type of professional services required without regard to fee other than unit price information at this stage, and thereafter to negotiate a contract for architectural or engineering services at a fair and reasonable fee with the best qualified firm. If a contract cannot be negotiated with the best qualified firm, negotiations with that firm shall be terminated and initiated with the next best qualified firm;" and WHEREAS, Section 143-64.32 provides that, "Units of local government or the North Carolina Department of Transportation may in writing exempt particular projects from the provisions of the act in the case of: (a) Proposed projects where an estimated professional fee IS in an amount less than thirty thousand dollars ($30,000), or (b) Other particular projects exempted in the sole discretion of the Department of Transportation or the unit of local government, stating the reasons therefore and the circumstances attendant thereto." NOW, THEREFORE, be it resolved that the Monroe City Council, North Carolina, does hereby exempt City projects where the estimated professional fee is in an amount of less than thirty thousand dollars ($30,000) from the herein above-cited statute. The reasons therefore and circumstances attendant thereto are that this is in the best interests of the City of Monroe and its citizens and that the scope of work for these projects will be sufficiently detailed to justify consideration of fee amount as one of several considerations in selecting professional services. ADOPTED this 18th day of December, 2001. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: Item No.7. Ordinances. A. To Amend Traffic Schedules - Throui!h Trucks. Engineering Director Loyd advised by memorandum that the Engineering Department has recommended amending Schedule VII, Through Trucks to include West Street, ftom Franklin Street to Lancaster Avenue for "No Through Trucks". Council Member Hargett moved to adopt Ordinance 0-2001-55: 199 e e e e e AN ORDINANCE TO AMEND TITLE VII, CHAPTER 75 OF THE CITY OF MONROE CODE OF ORDINANCES 0-2001-55 BE IT ORDAINED by the City of Monroe Council that Title VII: Traffic Code, Chapter 75 - Traffic Schedules of the City of Monroe Code of Ordinances is amended as follows: Schedule VII. Through Trucks ADD: No through trucks are permitted at the following location: STREET NAME FROM TO West Street Franklin Street Lancaster Avenue ADOPTED this 18th day of December, 2001 Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: B. To Amend Title III. Chapter 31 of the City of Monroe Code of Ordinances. City Manager Spell advised by memorandum that North Carolina General Statutes 160A-172 states, "The Council may provide for a Deputy City Clerk who shall have full authority to exercise and perform any of the powers and duties of the City Clerk that may be specified by the Council. " City Attorney Milliken drafted a proposed Ordinance to establish the office of Deputy City Clerk to be filled by the City Manager. This position would have full authority to exercise and perform all of the powers and duties ofthe City Clerk during the absence of the City Clerk and to perform such other duties as prescribed by the City Manager. These duties would be filled by reclassification of an existing position in the General Administration Department. Staff recommended City Council adopt an Ordinance to establish the position of Deputy City Clerk. Council Member Hargett moved to approve Ordinance 0-2001-53: AN ORDINANCE TO AMEND TITLE III CHAPTER 31 OF THE CITY OF MONROE CODE OF ORDINANCES 0-2001-53 Preamble Pursuant to authority granted by Chapter 160A Section 172 of the North Carolina General Statutes, as amended: 200 e e e e e BE IT ORDAINED BY THE CITY COUNCIL OF MONROE THAT TITLE III CHAPTER 31 OF THE CITY OF MONROE CODE OF ORDINANCES IS AMENDED AS FOLLOWS: TEXT AMENDMENT Section 1. Amend Chapter 31 to add new § 38.05 as follows: § 38.05 Deputy City Clerk. (A) The office of Deputy City Clerk is established and shall be filled by the City Manager. (B) The Deputy City Clerk shall have full authority to exercise and perform all of the powers and duties of the City Clerk during the absence of the City Clerk and to perform such other duties as prescribed by the City Manager. Section 2. This Ordinance shall be in full force and effective from the date of its adoption. ADOPTED this 18th day of December. 2001. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: C. Petition for Ordinance to Declare Certain Property Unfit for Human Habitation - 411 Pedro Street. Building Standards Director Harvell recommended by memorandum that City Council consider a Petition for Ordinance to declare the property located at 411 Pedro Street unfit for human habitation and to proceed with a request to demolish and remove the dwelling due to the condition of the structure and the adverse impact it has on the area. Council Member Hargett moved to approve Ordinance 0-2001-54 to Declare the Property Unfit for Human Habitation: ORDINANCE OF THE MONROE CITY COUNCIL TO DECLARE THE PROPERTY OF JOE E. AND MYRA AUSTIN, AUSTIN REALITY, INC. 411 PEDRO STREET UNFIT FOR HUMAN HABITATION 0-2001-54 This matter comes before the City Council on the petition of Robert L. Harvell, Building Standards Director, for an ordinance ordering the said Richard T. Davis, Code Enforcement Officer, to proceed to effectuate the purpose of Chapter 160A, Article 19 of the North Carolina General Statutes with respect to the property hereinafter described and it appearing to the Council and it so fmds based upon the petition and the documentation filed in this matter and any statements made by Robert L. Harvell, that the said Richard T. Davis, Code Enforcement Officer has complied with the requirements of Chapter 153 of Title XV of the City of Monroe Code of Ordinances and Article 19 of Chapter 160A of the North Carolina General Statutes with 201 e e e e e respect to the property hereinafter described and that the property owner has failed to comply and that it is proper to adopt the ordinance requested in the petition. NOW, THEREFORE, BE IT ORDAINED THAT: Section 1. The dwelling located on the property hereinafter described is unfit for human habitation. Section 2. That the order of Richard T. Davis, Code Enforcement Officer was not appealed and the time for appeal has expired and is found to be correct and proper and is therefore ratified and incorporated herein by reference. Section 3. That the property owner has failed to comply with the order and the Code Enforcement Officer is ordered to proceed to effectuate the purposes of Chapter 160A, Article 19 of the North Carolina General Statutes with respect to said property. Section 4. That the description of said property is as follows: FIRST TRACT: Beginning at an iron stake on the edge of cherry street (a 30 foot right of way) a common corner with Johnny Yow property; thence with Yow's line, N. 85-15-00 W. 78.77 feet to an iron, A.G. Helms corner; thence with Helms line, N. 02-05-20 E. 74.84 feet to an iron; thence S. 85-02 E. 12.9 feet to an iron; thence N. 01-45-30 E. 53.5 feet to a point; thence N. 86-45 E. 69.1 feet to a RR spike on the western edge of Cherry S1.; thence with the western edge of Cherry S1. S. 3-12-30 W. 137.80 feet to the point and place of BEGINNING, according to a survey by James S. Brown, R.L.S dated April9, 1981. SECOND TRACT: BEGINNING at an iron stake, a common corner with the E. David Dodd, Jr. property on the south edge of Pedro S1. (a 30-foot right of way) thence with the south edge of Pedro S1. S. 86- 44-30 E. 98.49 feet to a R. R. spike; thence S. 07-11-40 W. 156.21 feet to an iron; thence N. 81-09-40w. 111.44 feet to an iron; thence N. 12-17-40 E. 148.09 feet to the point and place of BEGINNING according to a survey by James S. Brower, RL.S. dated April9, 1981. The Grantee by the acceptance of this deed agrees to assume and pay the outstanding balance due on the deed of trust executed by Coble Funderburk, Trustee for Heritage Saving and Loan Assoc. dated February 17, 1976, securing a note in the original amount of $21,000.00, recorded in book A-249, page 200, Union County Registry. Also, the Grantee by the acceptance or this deed agrees to assume and pay the outstanding balance du on the deed of trust executed by Austin Realty, Inc. dated May 1, 1981 to Charles D. Humphries, trustee for Clegg T. Wooten and wife, Doris W. Wooten, and Recording Book at Union County Registry. It is further agreed that the Grantee hereby holds the Grantor harmless from and further liability thereon. Section 5. That the Code Enforcement Officer is ordered to post on the main entrance of the dwelling located on said property a placard with the following words: "This building is unfit for human habitation; the use or occupancy of this building for human habitation is prohibited and unlawful." Section 6. That the Code Enforcement Officer is authorized to utilize all statutory means of enforcing the order and this ordinance including but not limited to the remedies set out in N.C.G.S. 160A-175(e) and (f) and N.C.G.S. 160-443(4) and (5). Section 7. This ordinance shall be recorded in the Office of the Register of Deeds for Union County and indexed in the grantor index under the property owner's name. Section 8. This ordinance shall be effective from and after the date of its' adoption. ADOPTED this 18th day of December, 2001. 202 e e e e e Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: REGULAR AGENDA Item No.8. Formal Approval of Settlement A2reement (Heaston vs. Citv of Monroe). City Attorney Milliken advised that Council had previously been briefed on the settlement agreement in a Closed Session. The agreement was agreed upon by the plaintiffs, and the court has indicated that the suit would be dismissed if the agreements were signed. City Attorney Milliken recommended that Council formally approve the settlement agreement and instruct the City Manager to sign the agreement on behalf ofthe City of Monroe. Mayor Pro Tern Bazemore moved to approve the settlement agreement for Heaston vs. City of Monroe and to authorize the City Manager to sign the agreement on behalf of the City of Monroe. Council Member Hargett seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: The Formal Approval of Settlement Agreement (Heaston vs. City of Monroe) is hereby incorporated as a part of these Minutes as Exhibit "D". City Attorney Milliken recognized Attorney Ed Hinson to make additional comments. Attorney Hinson advised that the settlement would be carried out on Wednesday, December 19,2001. Mayor Davis read the following statement on behalf of the City of Monroe: "The City of Monroe deeply regrets the death of Kim Medlin. The City is proud of the men and women of its Police Department and is particularly proud of those who helped in the investigation of Kim Medlin's death. We hope this settlement will permit the citizens of Monroe, as well as the Police Department, to move forward in their quest for a safe and prosperous community and will bring some measure of closure to the Heaston and Medlin families in the tragedy of Kim Medlin's death. " Item No.9. Public Hearin2s. A. Proiect # 01-100-00014 - Conditional Use Permit Request - New Walter Bickett Elementary School - Lancaster Avenue Between Kin2swood and Oak Hill Drive - 24.89 Acres - Union County Public Schools - Tax ID #s 09-279-043 and 044 {Continued from 203 November 6. 2001 Meetin¡!). On behalf of Union County Public Schools, Planning and Development Director Herron requested that the public hearing be continued until January 15, e 2002. e e e e Council Member Hargett moved to continue the public hearing until January 15, 2002. Council Member Smith seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: B. Proiect # 02-130-00004 - Zonine: Map Chane:e ReQuest - R-20 (Low/Moderate Density Sine:le-Familv Residential) to R-I0-SU (Moderate/Hie:h Density Sine:le-Familv Residential Special Use) - 22.6 Acres on West Side of Old Pae:eland - Monroe Road - East Villae:e. LLC - Tax ID # 09-087-016. Mayor Davis opened Items B. and C. as one public hearing. The public hearings were held together and action was taken separately. C. Proiect # 02-110-00003 - Special Use Permit ReQuest - ReQuest to Develop 65-lot R-I0- SU Subdivision - 22.6 Acres on West Side of Old Pae:eland - Monroe Road - East Villae:e. LLC - Tax ID # 09-087-016. Mayor Davis opened this duly advertised quasi-judicial public hearing and Item B. and swore in the following individuals who planned to give testimony: Wayne Herron, Isabelle Gillespie, Greg Story, Bruce Warner, and Spiro Kalsunis. Planning and Development Director Herron advised that this hearing involved a rezoning request from R-20 (Low/Moderate Density Single-Family Residential) to R-lO-SU (Moderate/High Density Single-Family Residential-Special Use). East Village Development, LLC is the petitioner for the project, which is to be located on Old Pageland-Monroe Road, approximately 850, feet south of the intersection with Old Highway 74 East. The property involved is a 22.6- acre tract, which is surrounded by mostly vacant property that is zoned R-20. David Fencl pointed to the pertinent location utilizing a zoning map. Planning and Development Director Herron noted that an off-site extension would be required for water and sewer at the expense of the developer. Staff felt that rezoning to a special use district had the opportunity to address compatibility issues. Discussions between the Land Development Committee and the petitioner were held due to the project being located in an area that was not designated for high-density, single-family residential development in the City of Monroe Land Development Plan. The Land Development Committee felt that they could support a high-density development in this location if all recommended design standards were incorporated into the development. The petitioner has stated that they intended to meet all recommended design standards except that they wished to construct carports instead of garages. The Land Development Committee agreed that carports would be acceptable in this development only if they were located in the rear yard. The petitioner has submitted a list of conditions that meets all recommended design guidelines stated in the Land Development Plan. The letter of agreement was contained in the Council Agenda Packet. Planning and Development Director Herron addressed the special use portion of the project and stated that the Special Use Permit request was for a 65-lot subdivision. The petitioner is East 204 e e e e e Village Development, LLC, who has requested the ability to develop a 65-lot, R-I0 subdivision. The subdivision has two new sections of roadway proposed - East Village Drive and East Village Court. Lot sizes range from a minimum of 10,000 square feet to 28,140 square feet. All lots meet the minimum R-I0 lot requirements, and no lots will have driveway access to Old Pageland-Monroe Road. Two common areas are proposed on the plan that will be maintained by a homeowners' association. The preliminary plat also indicates a twenty (20) foot wide tree save area from the edge of the Old Pageland-Monroe Road right-of-way. Sidewalks are proposed along both sides of each section of new roadway. The pavement width of the proposed streets is 22 feet, with an additional two (2) feet of curb and gutter on each side of the pavement, which would all be located within a 50-foot right-of-way. The Engineering Department has requested a realignment of the proposed roadways to avoid long straight sections over 400 feet in length, which typically lead to speeding. Realigning the proposed roadways would help eliminate speeding and the possible need for speed humps in the future. The Planning Board expressed their concerns regarding the proposed road alignment, and staff recommended that the role of the two proposed roads be reversed. The proposed East Village Court would therefore become a through street, and East Village Drive would be accessed via an intersection. Stop signs would be placed at both intersections of East Village Court and East Village Drive. Planning and Development Director Herron advised that Greg Story, project representative, had met with City staff and indicated that this would be acceptable to change this alignment and reverse the roles. This change is currently in the process and will be recommended for approval and review by the Engineering Department once submitted. The petitioner has submitted a list of design conditions that they wish to incorporate into the development. The conditions generally follow the recommended design guidelines for rezoning to an R-I0 zoning district stated in the Monroe Land Development Plan. Variations from the recommended design guidelines include replacing the recommended two-car garage with a carport in the rear yard, which would be large enough to accommodate two vehicles. Planning and Development Director Herron noted the following recommended conditions should Council choose to issue a Special Use Permit for this request: 1. The petitioner must complete all land purchases and transfers and submit copies of recorded deeds to staff as evidence of land ownership prior to the recordation of the Special Use Permit; and 2. The development of the tract shall proceed in conformity to all plans and design features submitted as part of the Special Use Permit application and kept on file by the City of Monroe Department of Planning and Development, except that the City of Monroe Zoning Administrator may approve minor changes to such plans as required by field conditions. Minor changes shall be defined as any change in lot configuration which does not affect approved public facilities and any change in lot size which does not result in more than a 5% reduction in total square footage as shown on the preliminary plan; and 3. The petitioner shall secure and record all off-site easements for the water and sewer main extensions; and 205 4. The petitioner shall provide a sidewalk a minimum of five (5) feet in width, as well as directional signage serving the recreation area within the access easements between lots 46 e and 47, 42 and 43, as well as between lots 52 and 53; and 5. Thirty-five (35) by 35-foot sight distance triangles shall be provided at all street intersections and 10 by 70-foot sight distance triangles shall be provided where the proposed new subdivision connects with Old Pageland-Monroe Road; and . e 6. The petitioner shall submit evidence to staff that they have recorded all restrictive covenants and the articles of incorporation and by-laws for the homeowners' association prior to recordation of the final subdivision plat. Such agreements shall be in substantial conformity to those which were submitted for review by staff prior to recordation, and that the agreements include applicable provisions and standards to meet all conditions placed upon the Special Use Permit by City Council and any design features imposed by the petitioners; and e 7. Following inspection and approval of the construction and/or installation of all required recreational areas of the development, the developer shall submit a letter of credit issued in the City's favor, for 100% of the annual maintenance cost ofthese facilities as agreed upon and approved by the Zoning Administrator. Such letter of credit shall be renewed every twelve months until such time as East Village, LLC ceases to have the controlling vote in the homeowners' association, as recorded in the Declaration of Covenants, Conditions, and Restrictions, and the City of Monroe has received written notice thereof and a copy of the names, addresses, and phone numbers of all duly-elected members of the homeowners' association board of directors; and 8. The petitioner shall submit detailed plans for all recreation area improvements, including playground equipment, prior to recordation of the final subdivision plat; and 9. The recorded articles of incorporation and by-laws shall require the homeowners' association to submit a copy of the names, addresses, and phone numbers of all duly- elected members of the homeowners' association board of directors, as well as a financÜi.l statement, to the City of Monroe, Director of Planning and Development by the 15th day of January each year; and e 10. The petitioners shall construct all street and sidewalk improvements in accordance with the City of Monroe Standard Specifications and Detail Manual, and receive approval from the City of Monroe Engineering Department; and 11. The supplementary design standards submitted by the applicant shall be incorporated for all residences and lots within the subdivision; and e 12. The role of proposed East Village Court and East Village Drive shall be reversed in accordance with recommendations from the City Engineering Department. A revised road and intersection design shall be submitted and approved by the City Engineering Department prior to any land disturbing activity or plat recordation. 206 e e e e e The Planning Board has reviewed both the rezoning and the Special Use Pennit and has recommended that the petitioner apply for R-l5-SU zoning and have an R-l5-SU pennit subdivision. Staff recommended approval of the rezoning request to R-lO-SU based on the Land Development Committee's review of the project. Council Member Kilgore inquired if the only change for R-l5 was the lot size. Planning and Development Director Herron responded that R-l5 would decrease the number of lots available and would increase the minimum size of the lot. Council Member Smith questioned the total number of lots that would be available with R-l5 zoning. Depending on the layout, Planning and Development Director Herron advised that there would be a loss of five to six lots. Council Member Jordan referred to recommendation No.9 and asked for further explanation regarding the requirement to submit a financial statement to the City. Planning and Development Director Herron responded that this requirement was currently in the City's Subdivision Ordinance to show that the developer has the means to maintain the upkeep of such areas as the recreation space within the subdivision. Council Member Jordan further inquired if other homeowners' associations have been required to provide the financial statement. Planning and Development Director Herron reported that he had seen this requirement in several instances in the recent past. Isabelle Gillespie, Executive Director of the Monroe-Union County Community Development Corporation, spoke in favor of the request. Ms. Gillespie reported that the intent of the project was to serve the needs of the City's low to moderate-income families. In keeping with the required findings of fact for a Special Use Pennit, Mayor Davis asked the following questions of Ms. Gillespie: Mayor Davis: Is it your opinion that the use will not materially endanger the public health or safety iflocated, designed, and operated according to the plan? Ms. Gillespie: Yes. Mayor Davis: Is it your opinion that the use or development complies with all regulations and standards of Chapter 154 and 156 of the Monroe Code of Ordinances, as well as any other state or local rule or regulation governing the development ofland? Ms. Gillespie: Yes. Mayor Davis: Is it your opinion that the use or development will not adversely impact surrounding property and will not substantially injure the value of adjoining property? Ms. Gillespie: Yes. Mayor Davis: Is it your opinion that the location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and will be in general confonnity with the Monroe Land Development Plan? 207 e Ms. Gillespie: Yes. Mayor Davis: Is it your opinion that public water and sewer service are available in adequate capacity? Ms. Gillespie: Yes. Mayor Davis: Is it your opinion that the rezoning of land to a special use district will produce a development of equal or higher quality than otherwise required by the strict application of the provisions of a general use district of similar type and intensity and will therefore benefit the owner, his neighbors, and the surrounding community? Ms. Gillespie: Yes. Council Member Kilgore asked if the average house would be 1,000-square feet. Ms. Gillespie e responded that the minimum square footage of the units would be 1,300. Council Member Smith inquired what the cost difference would be for a two-car garage versus a two-car carport. e e e Mr. Story responded that it would be approximately $10,000. Council Member Smith further asked what the size difference would be. Mr. Story stated that the carports would be 20 x 24 feet. Council Member Smith inquired if a citizen could get a two-car garage if they so desired. Mr. Story replied that they could build whatever the citizen wanted. Mr. Story reported that if the zoning was changed from R-I0 to R-15, there would be a loss of between 15 and 20 lots, which would likewise increase the cost of the 45-50 lots. Mr. Story further clarified that the minimum square footage of the houses would be 1,300 and could potentially go up to whatever was desirable and affordable by the prospective homeowner. Council Member Smith asked if all the carports were to be located in the rear of the house. Mr. Story confirmed this inquiry and clarified that the carport would run perpendicular to the house with A-frame trusses, shingles, and vinyl that matched the house. Bruce Warner spoke in opposition. Mr. Warner advised that the zoning sign was put up only five days prior to the meeting and expressed his concerns regarding the proposed subdivision. Mr. Warner noted concerns regarding the entire land area being surrounded by R-20 low-density property, the proposed property not being designed for high-density housing, the potential for future phases of development, and the potential for sewer problems. Spiro Kalsunis spoke in opposition. Mr. Kalsunis reported that he owns 92 acres adjacent to the proposed property and stated that his only objection to the project was changing the zoning from R-20 to R-I0. Mayor Davis advised that a Special Use Permit required a person to place special rules upon themselves to allow the property to be rezoned. Any time a special use is utilized, a developer gives up something to obtain something else. In this particular case, the developer is giving up his right to determine the minimum square footage of the homes. If the land remains R-20, this 208 e e e e e would allow the developer(s) to develop the land in any way they chose, with no special guidelines. Ms. Gillespie reported that the plan was the complete development with no additional phases. Council Member Kilgore inquired about the policy for putting up rezoning signs. Planning and Development Director Herron noted that he would check on this particular situation; however, the signs are supposed to go up the day after there is a call for a public hearing. Council Member Kilgore expressed a concern regarding repeated citizens stating during a public hearing that the signs had only been up for a short time period and therefore advised that this situation be investigated. Planning and Development Director Herron stated that he would follow up with the staff to ensure that the signs were being put up according to policy guidelines. Mayor Davis asked for clarification regarding the potential for sewer problems as noted by Mr. Warner. Water Resources Director Colbath responded that there may have been confusion regarding press coverage of Union County's over-allocation of sewer, but there was no problem with sewer at the proposed site of the proposed subdivision. There being no other speakers, either for or against the proposal, Mayor Davis closed this public hearing. Item No. 10. Action from Public Hearin2:s. A. Project # 01-100-00014 - Conditional Use Permit Request - New Walter Bickett Elementary School - Lancaster Avenue Between Kin2:swood and Oak Hill Drive - 24.89 Acres - Union County Public Schools - Tax ID #s 09-279-043 and 044 (Continued from November 6.2001 Meetinf!). No action taken as public hearing was continued until January 15, 2002. B. Project # 02-130-00004 - Zonin2: Map Chan2:e Request - R-20 (Low/Moderate Density Sin2:le-Familv Residential) to R-I0-SU (Moderate/Hi2:h Density Sin2:le-Familv Residential Special Use) - 22.6 Acres on West Side of Old Pa2:eland - Monroe Road - East Villa2:e. LLC - Tax ID # 09-087-016. Mayor Pro Tern Bazemore moved BE IT ORDAINED that this property be rezoned from R-20 (Low/Moderate Density Single-Family Residential) to R-I0-SU (Moderate/High Density Single-Family Residential Special Use). Council Member Jordan seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: C. Project # 02-110-00003 - Special Use Permit - Request to Develop 65-lot R-I0-SU Subdivision - 22.6 Acres on West Side of Old Pa2:eland - Monroe Road - East Villa2:e. LLC - Tax ID # 09-087-016. Mayor Pro Tern Bazemore moved BE IT ORDAINED that the Special Use Permit be adopted in all respects: 209 e e e e THE CITY OF MONROE. NORTH CAROLINA SPECIAL USE PERMIT On the date(s) listed below, the City Council of the City of Monroe met and held a public hearing to consider the following application: Record Owner(s): East Village Development. LLC, a North Carolina Limited Liabilitv Company Property Location: West side of Old Pagel and - Monroe Road approximately 850 feet south ofthe intersection with Old Highwav 74 Tax Map & Parcel # 09-087-016 Acreage: 22.6 Deed Reference: BOOK 1693 ,PAGE 057 Type and Intensity of Use: 65 lot R-I0 subdivision Meeting Dates: December 18,2001 Approval Date: December 18,2001 SECTION 1. FINDINGS: Having heard all of the evidence and arguments presented at the hearing, the City Council, at its regular meeting, finds and determines that the application is complete, and subject to the conditions imposed below, the following findings are made: 1. The use will not materially endanger the public health or safety if located, designed, and operated according to the plan; and 2. The use or development complies with all regulations and standards of Chapter 154 and 156 of the Monroe Code of Ordinances, as well as any other state or local rule or regulation governing the development of land; and 3. The use or development will not adversely impact surrounding property and will not substantially injure the value of adjoining property; and 4. The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and will be in general conformity with the Monroe Land Development Plan; and 5. Public water and sewer service are available in adequate capacity; and 6. The rezoning of land to a special use district will produce a development of equal or higher quality than otherwise required by the strict application of the provisions of a general use district of similar type and intensity and will therefore benefit the owner, his neighbors, and the surrounding community. SECTION 2. CONDITIONS: Now, therefore, the application to make use of the above described property for the purpose indicated is hereby approved and granted, subject to all applicable provisions of Chapter 156 of the City of Monroe Code of Ordinances, Section 3 of this permit, and the following special condition(s) which the City Council finds to be in the public interest: 1. The petitioner must complete all land purchases and transfers and submit copies of recorded deeds to e staff as evidence of land ownership prior to the recordation of the special use permit; and 210 3. 4. e 5. e e e e 2. The development of the tract shall proceed in conformity to all plans and design features submitted as part of the special use permit application and kept on file by the City of Monroe Department of Planning and Development, except that the City of Monroe Zoning Administrator may approve minor changes to such plans as required by field conditions. Minor changes shall be defined as any change in lot configuration which does not affect approved public facilities and any change in lot size which does not result in more than a 5% reduction in total square footage as shown on the preliminary plan; and The petitioner shall secure and record all off-site easements for the water and sewer main extensions; and The petitioner shall provide a sidewalk a minimum of five (5) feet in width as well as directional signage serving the recreation area within the access easements between lots 46 and 47, 42 and 43, as well as between lots 52 and 53; and 35 by 35-foot sight distance triangles shall be provided at all street intersections and 10 by 70-foot sight distance triangles shall be provided where the proposed new subdivision connects with Old Pageland-Monroe Road; and 6. The petitioner shall submit evidence to staff that they have recorded all restrictive covenants and the articles of incOlporation and by-laws for the homeowners association prior to recordation of the final subdivision plat. Such agreements shall be in substantial conformity to those which were submitted for review by staff prior to recordation, and that the agreements include applicable provisions and standards to meet all conditions placed upon the special use permit by City Council and any design features imposed by the petitioners; and 7. Following inspection and approval of the construction and/or installation of all required recreational areas of the development, the developer shall submit a letter of credit issued in the City's favor, for 100% of the annual maintenance cost of these facilities as agreed upon and approved by the Zoning Administrator. Such letter of credit shall be renewed every twelve months until such time as East Village, LLC ceases to have the controlling vote in the homeowner's association, as recorded in the Declaration of Covenants, Conditions and Restrictions and the City of Monroe has received written notice thereof and a copy of the names, addresses and phone numbers of all duly-elected members of the homeowner's association board of directors; and 8. The petitioner shall submit detailed plans for all recreation area improvements, including playground equipment prior to recordation of the final subdivision plat; and 9. The recorded articles of incorporation and by-laws shall require the homeowner's association to submit a copy of the names, addresses and phone numbers of all duly-elected members of the homeowner's association board of directors, as well as a financial statement to the City of Monroe, Director of Planning and Development, by the I5tth day of January each year; and 10. The petitioners shall construct all street and sidewalk improvements in accordance with the City of Monroe Standard Specifications and Detail Manual, and receive approval from the City of Monroe Engineering Department; and 11. The supplementary design standards submitted by the applicant shall be incorporated for all residences and lots within the subdivision. 12. The role of proposed East Village Court and East Village Drive shall be reversed in accordance with recommendations from the City Engineering Department. A revised road and intersection design shall 211 e e e e e be submitted and approved by the City Engineering Department prior to any land disturbing activity or plat recordation. SECTION 3. VESTED RIGHTS. Approval of this permit confers upon the property the right to develop with the type and intensity of use as herein described and as shown on the approved site plan. Development of the property, however, shall be subject to any and all future amendments to Chapters 151 and 156 of the Monroe Code of Ordinances which do not effect type and intensity of use (e.g. landscaping, design standards, screening, etc) as herein approved. SECTION 4. SEVERABILITY AND RECORDATION. Invalidation of anyone or more of these conditions shall not adversely affect the balance of said conditions, which shall remain in full force and effect. This permit shall become null and void if not recorded in the office of the Register of Deeds, Union County, North Carolina, on or before March 1,2002. Council Member Jordan seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: D. Proiect # 01-100-00011 - Conditional Use Permit - Accessory Structure With a Home Occupation - 936 Secrest Hill Drive - .923 acres - James Marlow - Tax ID # 09-216-014 (Public Hearim! Completed on October 2, 2001). Council Member Smith inquired what the ending date would be for the 8-month period stated on the Customary Home Occupation Agreement. Mayor Davis advised that the agreement stated that it would be eight months from the date of recordation of the Conditional Use Pennit. Planning and Development Director Herron stated that it nonnally takes staff approximately two to three weeks to get the Conditional Use Pennit recorded, and it would be eight months from that date. Council Member Smith moved BE IT ORDAINED that the Conditional Use Pennit be adopted in all respects: CONDITIONAL USE PERMIT CUP# 01-100-00011 On the date(s) listed below, the City Council of the City of Monroe met and held a public hearing to consider the following application: Record Owner(s): Property Location: James F. Marlow and Jatana L. Helms 936 Secrest Hill Drive Tax Map & Parcel # 09-216-104 Acreage: .923 Deed Reference: BOOK 728 595 ,PAGE Type and Intensity of Use: Use of an accessory structure in coni unction with a home occupation. Meeting Dates: September 4.2001. October 2.2001. November 6. 2001. November 20.2001. 212 e 1. 2. 3. e 4. e e e December 3.2001 & December 18.2001 Approval Date: December 18.2001 SECTION 1. FINDINGS: Having heard all ofthe evidence and arguments presented at the hearing, the City Council, at its regular meeting, finds and determines that the application is complete, and subject to the conditions imposed below, the following findings are made: The use will not materially endanger the public health or safety if located where proposed and developed according to plan; and The use meets all required conditions and specifications; and The use will not substantially injure the value of adjoining or abutting property or that the use is a public necessity; and The location and character of the use, if developed according to the plan as submitted and approved, will be in harmony with the area in which it is to be located and will be in general conformity with Monroe Land Development Plan; and 5. The relationship to and impacts upon adjoining and nearby properties and the adequacy of proposed measures to minimize any adverse impacts are sufficient; and 6. The neighborhood character is reasonably safeguarded. SECTION 2. CONDITIONS: Now, therefore, the application to make use of the above described property for the purpose indicated is hereby approved and granted, subject to all applicable provisions of Chapter 156 of the City of Monroe Code of Ordinances, Section 3 of this permit, and the following special condition(s) which the City Council finds to be in the public interest: 1. The development of the tract shall proceed in conformity to all plans and design features submitted as part of the conditional use permit application and kept on file by the City of Monroe Department of Planning and Development; and 2. The petitioner shall comply with all zoning regulations for home occupations as specified in Chapter 156 of the City of Monroe Code of Ordinances and the conditions listed in the letter signed by James F. Marlow written to the Monroe City Council dated December 3, 2001 and attached hereto. SECTION 3. VESTED RIGHTS. Approval of this permit confers upon the property the right to develop with the type and intensity of use as herein described and as shown on the approved site plan. Development of the property, however, shall be subject to any and all future amendments to Chapters 155 and 156 of the Monroe Code of Ordinances which do not effect type and intensity of use (e.g. landscaping, design standards, screening, etc) as herein approved. SECTION 4. SEVERABILITY AND RECORDATION. Invalidation of anyone or more of these conditions shall not adversely affect the balance of said conditions, which shall remain in full force and effect. This permit shall become null and void if not recorded in the office of the Register of Deeds, Union County, North Carolina, on or before January 22, 2002. Mayor Pro Tern Bazemore seconded the motion, which passed unanimously with the following votes: 213 e e e e e AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: Item No. 11. Appointment of Dele!!ate and Alternate Dele!!ate to Centralina Council of Governments Board of Directors. Mayor Pro Tern Bazemore moved to appoint Council Member Kilgore as the Delegate and Council Member Hargett as the Alternate Delegate to the Centralina Council of Governments Board of Directors. Council Member Smith seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: Item No. 12. Other Business. A. Namin!! of Fitness Room at Aquatics and Fitness Center. In recognition of the time and effort Council Member Keziah has spent in the development of the Aquatics and Fitness Center, Mayor Pro Tern Bazemore moved to name the Fitness Room located inside the Aquatics Center the "Lynn A. Keziah Fitness Room." Council Member Hargett seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: B. Ralph Helms. Ralph Helms, 2926 Goldmine Road, addressed Council and stated that he had spent approximately two and a half months of the past five months in the hospital with a heart condition and asked for relief from the cost of getting City water to his property. Mayor Davis advised that Council would refer this issue to staff to determine if there was anything that could be done to assist Mr. Helms with obtaining relief from the cost of receiving City water. Mayor Davis requested that Mr. Helms leave his phone number with the City Clerk. There being no further business, Mayor Pro Tern Bazemore moved to adjourn. Council Member Hargett seconded the motion, which passed unanimously with the following votes: AYES: Council Members Hargett, Jordan, Kilgore, Smith, Mayor Pro Tern Bazemore, and Mayor Davis None NAYS: 214 e e e e e The Regular City Council Meeting of December 18, 2001 adjourned at 7:10 p.m. Attest: ~ z21 ~ ,,_J___ Jeanne M. Dees ,City Clerk Minutes transcribed and prepared by Donna Helms, Office Administration Contractor 12-18-01 215 e e e e e "Exhibit A" C-OI-I ~ð LEASE AGREEMENT AIRPORT FACILITY This Lease Agreement made and entered into this the Jj'day of December, 2001, by and between the CITY OF MONROE, a North Carolina Municipal Corporation (the "City") and On Eagles Wings Aviation, LLC, a flight training provider, and aircraft leasing and rental corporation organized and existing under the laws of the State of North Carolina (the "Lessee") THAT WHEREAS, the City owns the Monroe Municipal Airport and has authorized the operation of a Special Fixed Base Operator; NOW, THEREFORE, for and in consideration ofthe premises and mutual covenants contained herein, and in further consideration of the payment of the rent and fees set forth herein, the City and Lessee agree as follows: . 1. Leased Premises Lessee hereby leases from the City the property described as Flight Training Area . consisting of 21 0 square feet, more or less, located in the tenninal facility at the Monroe Municipal Airport, as shown on the attached Exhibit AI, to be used as an office for flight training and sight seeing services. Lessee shall have the full use and enjoyment of all areas identified as "Common Area" and "FBO Common Area" on Exhibit AI. For this full use and enjoyment the lessee will lease a pro,..rata share (7%) of the "Common Area" (130 square feet) and a pro-rata share (14%) of the "FBO Common Area" (177 square feet) as shown in Exhibits Al and A3. The leased premises shall also include a portion of the aircraft tie down spaces as identified o~ the attached Exhibit A2 as area 11. This portion shall be only for airplanes used for training and for lease and rental by On Eagles Wings Aviation, LLC. 2. Tenn of Lease The Contract tenn shall be for three years. There will be two one-year renewals. Either party may cancel the contract with a ninety day written notice. The tenn of this . Agreement shall commence on the --1- day of January, 2002 and tenninate on the ~ day of January, 2005. If Lessee remains in possession ofthe leased premises after the expiration of the tenn hereof, with Lessor's acquiescence and without any express agreement of the parties, Lessee shall be a tenant at will and there shall be no renewal of this agreement by operation oflaw. 3. Lease Pavrnent The rent for the premises shall be $5,542.24 per year, payable in twelve (12) equal payments of $461.85 per month, payable to the City on the first day of each month, in advance. Lessee will also pay a pro-rata share (9%) of utilities (water, sewerage, e e e e e electric, gas). The rental rates will increase by the Consumer Price Index, All Items, in July of each year. 4. Use of Premises The premises shall not be used for any purposes except for those herein designated without the prior written consent of the City. The leased premises shall be used for the purpose of conducting the business of a Specialized Fixed Base Operator to wit a Flight Training Provider, and airplane rental and leasing and for no other purpose. 5. Default The following events shall constitute events of default: a. failure to pay any lease payment or fee when due; b. failure to comply with or perform any covenant or condition set forth in this Agreement; c. failure to comply with the applicable rules and regulations of the City and Monroe Municipal Airport, including the Schedule of Minimum Standards For Commercial Aeronautical Activities and Fixed Base Operations and the Airport Safety Regulations; d. failure to comply with any state or federal rule, regulation, order, ordinance and statute applicable to Lessee's possession ofthe leased premises and Lessee's business; e. the filing by Lessee, its successors or assigns, of any bankruptcy petition or state insolvency proceeding or the appointment of a receiver, trustee or other judicial officer to operate Lessee's business, or any assignment for the benefit of creditors; f. abandonment of the leased premises; or g. cessation of Lessee's business. 6. Rights Upon Default or Breach Upon the occurrence of an event of default as described in Paragraph 5, the City shall provide notice of the default to Lessee. If such default continues for more than twenty (20) days after written notice or demand the City, at its option, has the right to declare this Agreement null and void and to terminate the Agreement, and without any legal proceeding re-enter and take possession ofthe leased premises. The City has the right to re-enter and remove all persons or property from the leased premises without the City being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Lessor, upon default or breach ofthis Agreement by Lessee, 2 e e e e e may, at its option, accelerate payment of all rent due pursuant to this Agreement, and sublet the premises at the best price obtainable by reasonable effort, and hold Lessee responsible for the balance, if any, between the rent obtained upon reletting and the rent charged to Lessee, plus any damages the City may incur by reason of Lessee's default or breach, includIng the cost of recovering the leased premises, reletting the leased premises, and reasonable attorney fees. The rights of Lessor are cumulative and Lessor may avail itself of any other rights and remedies under the law, and failure of the Lessor to avail itself of any particular remedy shall not constitute a waiver of such remedy. 7. Repairs and Maintenance Repairs necessitated by the actions or neglect of the City shall be paid for by the City. Repairs necessitated by the actions or neglect of Lessee shall be paid for by the Lessee. All other repairs and all general maintenance shall be prorated on the basis of the prorata share of space in the new terminal facility occupied by Lessee and the City shall pay for such repairs and invoice Lessee for its share which Lessee agrees to pay according to the terms of the invoice. 8. Insurance On Eagles Wings Aviation, LLC shall obtain and provide, on or before the commencement of the term and keep in force at all times thereafter, the following insurance coverage with respect to the premises: A) Airport Liability Insurance, including premises with a $5,000,000 limit and an endorsement naming the City of Monroe as an additional named insured. B) Aircraft Liability Insurance, including both in-flight and ground coverage, with a $1,000,000 limit and $100,000 per passenger and an endorsement naming the City of Monroe as an additional named insured. C) Workers Compensation Insurance as required by local, state and federal laws for all employees (including flight instructors if applicable) of On Eagles Wings Aviation, LLC, and employees of persons hired by On Eagles Wings Aviation, LLC to perform any work on the premises On Eagles Wings Aviation, LLC D) Auto Liability Insurance with a $1,000,000. E) Employers Liability with a $1,000,000. These insurance requirements are based on the assumption that On Eagles Wings Aviation, LLC will not require Products Liability Insurance because they will not 3 e e e e e sell any products and will not need Hangar Keeper's Insurance because they will not hangar or tie down any plane that they do not own. A certificate of insurance evidencing coverages shall be delivered to Monroe prior to the commencement ofthe lease, and shall be provided annually thereafter. 9. Right of Entry Monroe, at reasonable times and frequency, shall have the right to enter the premises to examine the same and to make such repairs, alternations, improvements or additions as it deems necessary without the same constituting an eviction of On Eagles Wings Aviation, LLC in whole or in part. Rent shall not abate while any repairs, alternations, improvements, or additions are being made provided that Monroe shall proceed expeditiously with the same and without unreasonable interference or interruption to On Eagles Wings Aviation, LLC's use of the premises. 10. Taxes On Eagles Wings Aviation, LLC shall pay all ad valorem taxes and assessments of Union County and the City of Monroe on all personal property, decorations, trade fixtures, furnishings, equipment, leasehold improvements, and alterations belonging to it. 11. Subletting and Assignment On Eagles Wings Aviation, LLC shall not sublet or assign any portion of the leased premises without the written consent of Monroe. 12. Damage to or Destruction of Premises by Force Maieure It is mutually covenanted and agreed that if, during the tenn of this lease, or any extension or renewal thereof, said leased premises as they now exist shall be substantially destroyed by fire, windstonn, tornado, or other casualty, then this lease, at the option of . either party, and upon ten days' notice in writing to the other party, shall cease and tenninate and such party shall be released from further obligation hereunder, and Monroe shall refund to On Eagles Wings Aviation, LLC any portion of the rent paid in advance and not earned at the time of such destruction. If however, during the tenn of this lease, the said premises as they now exist shall be only partly destroyed by fire, windstonn, tornado or other casualty, Monroe shall repair the premises as speedily as possible at its own expense, and until the completion of such repairs the Lessee shall be entitled to a reduction in rent in proportion to the amount of floor space of which it is deprived of use while such repairs are being made. Damage to such an extent as to render forty percent or more of the floor space unusable for the purposes of On Eagles Wings Aviation, LLC's business shall be "a substantial destruction" within the meaning of this agreement, and damage which renders less than forty percent of floor space usable for the purposes of On Eagles Wings Aviation, LLC' s 4 e e e e e business, but which cannot be repaired within sixty days, shall likewise be deemed "a substantial destruction." Monroe agrees to cooperate with On Eagles Wings Aviation, LLC in the repair of any damage to the end that the work be done at the earliest possible time. 13. Utilities Monroe and On Eagles Wings Aviation, LLC shall each pay their own telephone charges. All other utility bills shall be prorated according to "Exhibit B". Monroe will pay said bills and invoice On Eagles Wings Aviation, LLC for its share, which On Eagles Wings Aviation, LLC agrees to pay in accordance with the terms of invoice. 14. Liens On Eagles Wings Aviation, LLC shall keep the leased premises free from any and all leasehold security instruments and liens of any kind or nature for any work done, labor performed, material furnished thereon at the instance or request or on behalf of On Eagles Wings Aviation, LLC unless approved in writing by Monroe. 15. Indemnification On Eagles Wings Aviation, LLC shall indemnify, save and keep Monroe, its officers and employees, free and harmless from and against any and all actions, suits, proceedings, claims and demands for injury, damage, loss, liability, cost and expense, of any kind or nature whatsoever, which may be brought, made or filed against Monroe, its officers and employees, by reason of or arising out of, or in any manner attributable to any and all operations of On Eagles Wings Aviation, LLC in the use of the leased premises and by reason of the use of the airport and not arising out of or resulting from the gross or sole negligence of Monroe, its officers and employees. 16. Lessee Not to Suffer Waste On Eagles Wings Aviation, LLC covenants and agrees not to do or suffer any waste upon said premises and not to make any unlawful or offensive use of the same, and at the end of the term to deliver said premises in as good state and condition as reasonable use and wear thereof will permit. 17. Agreement Not Exclusive The terms and conditions of this agreement shall not prevent Monroe from executing leases with other Fixed Base Operators as well as the United States Army, United States Air Force, United States Navy or other Federal agency pertaining to governmental flying in the use of said airport facilities. Any Fixed Base Operator must maintain at all times minimum standards as set forth in Monroe's Schedule of Minimum Standards. 5 e e e e e 18. Preemptive Use by Government Agency If, during this agreement, the United States Government or any other governmental agency acquires possession of the premises or any portion thereof herein leased by virtue of any laws now in effect or which may become effective during the term of this agreement, then this agreement at the option of On Eagles Wings Aviation, LLC may be terminated or may be suspended in whole or in part for the period of time On Eagles Wings Aviation, LLC is deprived of the premises or any part thereof, and thereafter On Eagles Wings Aviation, LLC may resume this tenancy and the agreement shall continue until the full term thereof has been enjoyed by On Eagles Wings Aviation, LLC. Provided, that an equitable adjustment in the rent shall be made for any period when On Eagles Wings Aviation, LLC is prevented from the full use and enjoyment of the premises by reason of such possession. 19. Inspection by FAA It is agreed and understood between the parties that during the term of this agreement or any renewal thereof, the Federal Aviation Administration or any other Federalor State Agency shall be permitted to enter said premises and to make inspections and any improvements to or on said Airport facility. 20. Alterations by Lessee On Eagles Wings Aviation, LLC must first obtain the written approval of Monroe before making any alterations, additions or improvements in or on said leased premises. 21. Fees for Services On Eagles Wings Aviation, LLC agrees to operate the leased premises for the use and benefit of the public and to make available all services to the public without discriminatory or otherwise unreasonable charges or fees for any of the above services. It is agreed that rates or charges for such activities and services shall be fixed by On Eagles Wings Aviation, LLC and shall be subject to Monroe's approvaL Such approval will not arbitrarily or unreasonably be withheld. 22. Prohibited Transactions On Eagles Wings Aviation, LLC shall not enter into any transaction which would deprive Monroe of any of the rights and powers necessary to perform all covenants of the Grant Agreements or other obligations under various type agreements and in particular agreements it might have with FAA or which would deprive Monroe of rights to terminate this lease under the terms hereof. 6 23. Non-Discrimination e On Eagles Wings Aviation, LLC agrees that in its operation and use of said facility, it will not on grounds of race, color, creed, age, sex, or national origin, discriminate or permit discrimination against any person or group of person in any manner prohibited by Part 15 of the Federal Aviation Regulations. Monroe hereby reserves the right to take such action as the Federal Aviation Administration may direct to enforce such covenant of nondiscrimination. 24. Non-Exclusive Rights e It is expressly understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of exclusive rights within the meaning of Section 308(a) ofthe Federal Aviation Act of 1958 as amended. 25. Peaceful Eniovment e So long as On Eagles Wings Aviation, LLC is in full compliance with the provisions of this lease it shall have full, quiet, peaceful enjoyment of the premises during the term of this agreement, inclusive of ingress and egress of the premises, subject only to such reasonable rules, regulations and Airport Policy as written, posted, adopted and as may from time to time be amended by Monroe and which are incorporated herein by this reference. Provided that the same do not or could not be expected to materially adversely affect On Eagles Wings Aviation, LLC's use and enjoyment of the premises as permitted and limited by this agreement. 26. Notice Addresses For the purposes ofthis agreement, notices shall be addressed as follows: e Monroe's Notice Address. City of Monroe PO Box 69 Monroe, NC 28111-0069 Attn: City Manager On Eagles Wings Aviation, LLC's Notice Address. On Eagles Wings Aviation, LLC 1057 Brasstown Road Murphy, NC 28906 Attn: General Manager 27. Non-Waiver. e The waiver by either party as to the breach of any covenant or condition to be performed by the other or the failure of either party to insist upon strict performance of 7 e any covenant or condition to be performed shall not be deemed to abrogate such covenant or condition, nor be deemed as a waiver of any continuing or subsequent breach thereof, but such covenant or condition shall continue and remain in full force and effect. 28. Entire Agreement This Agreement constitutes the sole and entire agreement between the parties hereto and no modification of this Agreement shall be binding unless in writing and signed by all parties hereto. 29. Binding Effect e This Agreement shall bind and inure to the benefit of Monroe and On Eagles Wings Aviation, LLC and their respective heirs, executors, legal representatives, successors and assigns. 30. Applicable Law This Agreement shall be construed under the laws ofthe State of North Carolina. 31. Venue e This Agreement shall be deemed to have been made and performed in Monroe, North Carolina, and Lessee agrees that the proper venue for all claims, suits or causes of action in any way related to or arising out ofthis Agreement shall be the Union County North Carolina Superior Court or the United States District Court covering Union County, North Carolina, and Lessee agrees that such courts have jurisdiction and Lessee waives any defense based upon lack of jurisdiction or improper venue. e e 8 e e e e e Executed in duplicate, this the / ¡JU1.day Of~ ,2001. CITY OF MONROE Attest: j4~ Judy L. Davis, Mayor ON EAGLES WINGS AVIATION, LLC ¡J#~ Managing Partner Attest: Secretary 9 e e e e e NORTH CAROLINA UNION COUNTY 1,]'+(1 l1f~etft. J.dl1i(phths.¡nNotary Public, in and for said County and State, do hereby certify that Jeann M. D'ee'se personally appeared before me this day and acknowledged that she IS the City Clerk of the City of Monroe, a municipal corporation of said state, and that by virtue of said office is also Clerk to the City Council of said City, and that by authority duly given and as an act of said City, the foregoing instrument was signed in the name of the City and in her presence by its Mayor, sealed with the corporate seal of said City, and attested by herself as its City Clerk. Witness my hand and notarial seal, this -1L day of 10ecernber ,1~ 200 I. 01' Y'í~-t:þÙ ~. ~1't1.sc:m (Seal) Notary ublic My Commission Expires: \ / 13 l2.oo.~ . NORTH CAROLINA UNION COUNTY I, ~e.. ~ ¥\\Ie.Y~ ' Notary Public, in and for said County and State, do certify that <:øiV ,.;7 W,¿~~ersonally appeared before me thIS day and acknowledged that he/she iSÞl~µ'T ¡J~.I"-fÅ-. of On Eagles Wings Aviation, LLC, a corporation, and that by authority duly gíven and as the act of the corporation the foregoing instrument was signed in its name by its President, sealed with its corporate seal. and attest@à 13)' àimselí:'fl.C1'3Ðl~as its ,~J My Commission Expires: ':(;!YHf:1;;;;:'((,;1 F:Cpi~,::,~ M::xd¡ 0:8, 2C03 NORTH CAROLINA UNION COUNTY The foregoing certificate(s) of , Notary Public(s) of the County of ,State of North Carolina, is certified to be correct. This instrument was presented for registration this day and hour and duly recorded in the office of the Register of Deeds of Union County, North Carolina in Book ,Page This day of , 1998, at o'clock_.M. Judy G. Price, Register of Deeds By: Deputy/Assistant CHLT 50207vl 10 Air Side c_ "Exhibit A 1" e Area 5 Piedmont Area 4 ....... e FBO Common Area 7 Piedmont Area 3 Snack Bar FBO Common Area 8 Common Area r-- e Flight Training Area 6 City of Monroe I FBo~mmon Area 8 I e AREA SQUARE FEET CITY OF MONROE 993 PIEDMONT Area 1 972 Area 3 160 Area 4 472 Area 5 134 TOTAL 1;738 ON EAGLES WINGS 210 e FBO COMMON AREA 445 Area 2 Area 8 324 Area 7 -ID TOTAL 1,242 Road Side . 1,819 COMMON AREA Grand Total 6,002 e e e e e ~¡{;~~~~;;~~!~;!F~n?,'F.P3~'F/:~: ~;::-~{~:'5':i~~:;"" ,~,. ·¿Y;·::~~~";)·:r11".: ~ , -. " ..." ! ~. ~ .~ W.F.Harrl6 o.""'¡opnìont. LLC 719/80J \ "'m> 'r:,"'~' ~'" ~ ,¡;:,,'i?"',',~,,)~ð,;~ . '~~ ._",i>":'::!:?:: 9- 0:.. (.:t..r.. . ~ !~...:, co~:r ,11.,)0.- '0 c.... ~it~ni~'~~ i~ ~:,-' " vi \.II ~. \ ~e,ô 1"'0"'1<: "·,.-··f·,' 'I, -,' ' ~:~f~~~;~>" ;;: .:~,:,,:., ·.}T\~;;;~> :,1' . ~':'t: ~..... :1'. ;.~.' ..... .... .<\1 C'o' ·6 ~. , I· , , '. .~ .' .... 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N~ 'r z vt~f == Z vttA:: ;::::Z VI:Z ~J, ,-, ~::,,_~~õjõ.t.....t!:&·~ ~~~~~~~~~~~gg~ig· . ~g~-c~~SSd~~g~~~ .~ ~,..,:E.:E1i:Q ::E~r!1:E~,.,Pt ~ :->1 " " ~ ~, ~.g g :I 3 .... 2 .", ' . :; . . ~ ~~~~i~~=~~~~~:~~ :~ ~:888~~:~~~~~k~ 1 '~, r:: C) -~-------- ----.------ , AIrport ExtensIon Road SR ,~, § 3" o .." ~!!.. ...0 ã;~ -3 Q . § ::t1 5" :-." i:õ " . cri ::z: :6 ¡::¡ 8_ en ;: § n > l' M s- f) § ~ .. ::¡ ~ '. . "",' .....~.. .~..; "". "EXHIBIT M" ALLOCATION OF SPACE AT THE MONROE MUNICIPAL AIRPORT Piedmont City School Total Direct Use Square Feet 1738 993 210 2941 Percentage 59% 34% 7% Common Area Square Feet 1075 614 130 1819 Percentage 59% 34% 7% FBO Common Area Square Feet 1065 0 177 1242 Percentage 66% 0% 14% Total Square Feet 3878 1607 517 6002 Percentage 65% 27% 9% 1IDmiIf__ ',e , ~ e" " ",", '~\i!i e e e e e "Exhibit B" Prepared by: The City of Monroe e NORTH CAROLINA UNION COUNTY e e e e AMENDMENT TO LEASE AGREEMENT L-~\-toc.ì This amendment, made and entered into by and between the CITY OF MONROE, a North Carolina Municipal corporation ("Momoe") and PIEDMONT HAWTHORNE HOLDINGS, INe., also known as Piedmont-Hawthorne Aviation, a corporation licensed to do business in North Carolina ("Piedmont"); WITNESSETH . WHEREAS, Momoe and Piedmont entered into an agreement entitled "Lease Agreement" dated May 5, 1998 and amended by letter dated October 6, 1998 (the "Lease"); and WHEREAS, Piedmont has made a determination to no longer provide flight instruction services to the public; and WHEREAS, Momoe will have to locate a Specialized Fixed Base Operator to provide flight instruction services; WHEREAS, the Specialized Fixed Base Operator will require office space to conduct it operations; NOW, THEREFORE, it is agreed that the Lease be amended as follows: 1. The Exhibit "A" revised on October 6, 1998, describing the leased premises is hereby replaced by a new Exhibit "AI" showing the areas to be occupied by Momoe and common areas to be used by Piedmont and Momoe. Not shown on "Exhibit AI" but included in the common areas is the parking area situated on the Airport Road side of the facility. 2. The Exhibit "B" describing the allocation of space at the Momoe Municipal Airport revised on October 6, 1998 is hereby replaced by a new Exhibit "A3" showing the revised allocation of space at the Momoe Municipal Airport Terminal Building. 3. Section 4 of the Lease shall be amended to provide that the yearly lease rate for the space leased by Piedmont shall be $41,572.16 to be paid in equal monthly installments of$3,464.35. 1 '. e 4. In accordance with Sections Sand 11 of the Lease, payments for repairs, maintenance and utilities will be based on the revised space allocation in new Exhibit "A3". Executed this the /.v"""'- day of ~I e Attest: ~æ~ e e e 1f¿~ , Secretary CHLT 50159vl ,20-ºd.-. ~ITYC¡;0E By: /. J~ ayor PŒDM:: HAWTHOro;;HtJ;r:, 1 ~dent · 2 Air Side '. . . _. "Exhibit A 1" e Area 5 Piedmont Area 4 '- FBO Common Area 7 Piedmont Area 3 e Snack Bar FBO Common Area 8 Common Area r- e Flight Training Area 6 City of Monroe E FBo~mmon Area 8 , .---"-------_.. - . AREA SQUARE FEET CITY OF MONROE 993 ¡ PIEDMONT Area 1 972 Area 3 160 Area 4 472 Area 5 134 TOTAL 'r,738 ON EAGLES WINGS 210 e FBO COMMON AREA Area 2 445 Area 8 324 Area 7 ..Æ3 TOTAL 1,242 Road Side COMMON AREA 1,819 Grand Total 6,002 "EXHIBIT AJ" ALLOCATION OF SPACE AT THE MONROE MUNICIPAL AIRPORT Piedmont City School Total Direct Use Square Feet 1738 993 210 2941 , Percentage 59% 34% 7% Common Area Square Feet 1075 614 130 1819 Percentage 59% 34%- 7% FBD Common Area Square Feet 1065 0 177 1242 Percentage - 66% 0% 14% \ Total Square Feet 3878 1607 517 6002 Percentage 65% 27% 9% rø.IìIIIBT.JmIIII . .;¡ - ~,.. ';~, _,', I " I:¡i' -',' " . e e e e e e e e "Exhibit e" (.;-01-1 c:i.3 Prepared by: The City of Monroe NORTH CAROLINA UNION COUNTY ,.., AMENDMENT TO AIRPORT FIXED BASE OPERATOR LEASE This amendment, made and entered Ìì;lto by and between the CITY OF MONROE, a North Carolina Municipal corporation (the "Owner") and PIEDMONT HAWTHORNE HOLDINGS, INC., dba Piedmont-Hawthorne Aviation, a Delaware corporation licensed to do business in North Carolina (the "Operator"); WITNESSETH WHEREAS, the Owner and Operator entered into an agreement entitled "Airport Fixed Base Operator Lease" dated September 7, 1993 and amended on May 5, 1998 and September 19,2000 (the "FBO Lease"); and WHEREAS, the Operator has made a determination to no longer provide flight instruction services to the public; and WHEREAS, the Owner will have to locate a Specialized Fixed Base Operator to provide flight instruction services; WHEREAS, since the Owner will have to provide aircraft storage space for a new Specialized Fixed Base Operator, it is advantageous to create Land Lease Area No. 11 encompassing approximately 20,000 square feet of tie down space; Land Lease Area No. 11 will be deducted from Operator's lease. NOW, THEREFORE, it is agreed that the FBO Lease and the May 5,1998 amendment will be further amended as follows: e Airport FBO Lease September 7, 1993: e 1. Paragraph 2 is amended to delete the phrase "flight instruction of all kinds". 2. Paragraph 9 is amended to delete the phrase "The Operator has the right to provide a FAA Certified Flight School and at least one full-time FAA Certified Flight instructor to provide said instruction." Paragraph 9 is further amended to add "The Operator has the right to and shall provide charter flights, aircraft sale, hangar and maintenance buildings and will provide an FAA licensed mechanic. The Operator shall provide reasonable security for the grounds and rental property of the Monroe Municipal Airport included in the leased premises. The above services shall be subject to the Airport Policy adopted by the Owner and any amendments thereto as may be made from time to time." 1 e e e e e 3. The present Exhibit "A" dated February 20, 1998 and revised April 10, 1998 and September 19, 2000 describing the leased premises is hereby replaced by a new Exhibit "A2" with the leased premises covered by the FBO Lease being land lease areas 1, 5, and 8 and Facility Lease Area "B". Said new Exhibit "A2" is attached and incorporated by reference. Amendment to Airport Fixed Base Operator Lease, May 5, 1998. 4. Item 2 is changed as follows: 5. The Operator shall pay to the Owner, in consideration of the leased prémises the following rental: 5a. ( remains the same) 5b. For the period beginning with the approval of this Amendment by the Operator and the Owner and until the 30th day of April, 2004 the sum of $1 ,878.92 per month payable in advance or on or before the 10th day of the month for which it is due. 5e. For the period beginning the first day of May 2004 and until the 30th day of April, 2009 the sum of $5,0 1 0.44 per month payable in advance or on or before the 10th day of the month for which it is due. 5d. For the period beginning the first day of May 2009 and until the 30th day of April, 2013 the sum of $8,141.95 per month payable in advance or on or before the 10th day of the month for which it is due. 5e. ( remains the same) 5 f. ( remains the same) 5. Nothing in this amendment shall prohibit the Operator from providing flight instruction services in the future so long as the Operator applies for and obtains permission from the Owner for flight instruction services and meets all requirements for flight instruction services as set forth in the Owner's Schedule of Minimum Standards For Commercial Aeronautical Activities and Fixed Base Operations. 2 e Executed this the l-f~ day of ~ ,20~. e Attest: ~YJ1~~_ City Clerk e ^]/¢k Secretary CHLT 50151vl e e CITY ~NR, ' OE By: 'Æ .I4~ or 1 By: 3 e e e e e ~i:7:~~:~:;;¡·;:~~'r"~:"""",~,, : . :'. ,'-' ~-':. Jt:F: HOI'TØ. ' " "". \ o.~opmMt.LLC ~~\~~'~:! I '''~, \ ,,' .... . " II> ... Co ~ lÀ '" :l ~è8\,' 1 \.j'r-.'. '"'1\;': ' ) CI¡:"'~:\c;:í" " , iJ~:>o~; . ~ .. """f'''''l' ". ", ~/~~~~~t,.,. : :'::>:~<;~,. I . ,., ~" . :, . · ,~' rLî I I I I ~ M L_...J;;-¡o. / o~./ .~ ~f 'f:;b n{ ~;::e , À~ .,; '~, ~.. "<;;1:- " ..-0 ~~i. ~ p;pl' ~e, , , .~ ...... N ..' -,".io.. \; .'4o . .. , , :- ' -, , ' ,<1> · ~.. · . .. , ........--....., " "" _.... v1'...-:' , ~"\ q~G}" ~\ ¡~ r- "" cp\ 0t i~ : . ~! ~j ÈO \c: c- ~¡ Ri 1r-:'~ c!C,.. ~,~! :\;-'," ~··-f.tot.:J..?' ~l '- \, =Pù ...·.x '~;~£L.-/ '. """ ".:' ". . ~...... .~."';.. -. ":.J',;"~"~' :/,',. ,'.... "..~ , . ':"':~...~~~..:'.' ?~: ·f)~~!-0~~~:;~.;~~!:::·::; ,~.. - - ::E: ~:>1 ~' ~~ '"3. 100' f) q¡:~ "';:,- .~ f) ~ ~¡¡-~ ~:ï ~ f) g= ::E: :>1 I:) ~ 1; ii, ~.g &:3 ~ .... ..; ,~. ,-' .~ ...,., '.' .~. '_~"'~~~'_ ~'Jt.:" .:~::~~ 'I ", ·t . .;; :::;:,,' (y :s' '- ' ~ ~ o I ~~ :;,t ,.. % ',' \~ .~~ :-.1 "j :... ::':.\ j ~;; '.-,., . 'f'~ ¡; -.: [~~ -- ,,.j - -,- -,- - - -140Ò"';\ Airport Extension Road SR,.~, " §" o ..I:J -!to ~Q Õ;[ S- f) "0. , ' ,', '1''': § :·0 -§ (j " ::a § ~ 5' "",. [:.S! ::r: ~S ñ en 8_ .~ (') > t'"" t'J § ~ !!: ... ~ '. ~' .·;':"x~:: . , ' e e e e e "Exhibit D" SETTLEMENT AGREEMENT AND RELEASE . THIS SETTLEMENT AGREEMENT AND RELEASE (the "Agreement") is made and entered into by and between SHAREN HEASTON, ADMINISTRATOR OF THE ESTATE OF 'KIMBERLY JO MILLEN MEDLIN, ("Heaston"), and THE CITY OF MONROE, a municipal corporation (the "City") in the state of North Carolina (collectively defined and referred to as the "Parties"); WITNESSETH WHEREAS, Kimberly Jo Millen Medlin ("Kim Medlin") died on March 29,1997; WHEREAS, Heaston is the duly appointed Administrator of the Estate of Kimberly Jo Millen Medlin and thereby has certain powers and duties established by law to prosecute and settle claims for damages and to distribute the proceeds of any settlement to those legally entitled to receive them. Included among those powers and duties are the ones specified in N.C.G.S. §28A-13-3(15), (23) and (30) and §28A-18-1 and 2. WHEREAS, Heaston filed the civil action titled Sharen Heaston, Administrator of the Estate of Kimberly Jo Millen Medlin, Plaintiff v. The City Of Monroe, A Municipal Corporation, Defendant, Case No. 3:99-CV-105 in the United States District Court, Western District of North Carolina, Charlotte Division, which included a 42 U.S.c. § 1983 claim, a state wrongful death claim, negligence claims and other claims relating to Kim Medlin's death and events that occurred near the time of her death; WHEREAS, the said civil action makes allegations against the City that include allegations that a police officer of the City while on duty illegally stopped, unlawfully seized, detained, attempted to extort sexual favors from, made sexual advances toward, restrained and inflicted injuries on Kim Medlin resulting in her death; and the City vigorously disputes and contests its liability therefore; WHEREAS, the Parties have agreed to resolve the disputes between them as set forth herein; WHEREAS, the Parties have agreed, subject to approval by the United States District Court, to settle this matter in the interest of avoiding any further litigation and nothing contained herein shall be construed to be an admission of liability by any party; WHEREAS, the City Council for the City has approved this Agreement and the terms therein, subject to Court approval. NOW, THEREFORE, in consideration of the covenants and obligations contained in this Agreement, and for good and valuable consideration as set forth below, the sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Payment. Upon the execution of this Agreement and its approval by the United States District Court, the City or other representative will deliver to Heaston in her capacity as Administrator of the Estate of Kimberly 10 Millen Medlin and her attorney the sum of SEVEN HUNDRED FJFTY THOUSAND AND NO/lOO DOLLARS ($750,000.00) in the nature of e settlement. 2. No Other Payments or Benefits. Except for the payments described in this Agreement, Heaston acknowledges and agrees that the estate will receive no additional monies or benefits of any kind from the City as a result of tile matter and things alleged in the Complaint. e e e e 3. Release. In consideration for the payment herein, and upon approval of this agreement by the United States District Court, Heaston, as representative and administrator of the estate of Kim Medlin and on behalf of all the heirs at law under the North Carolina intestate statutes, hereby releases the City, its affiliates and any other related entities, including but not limited to the Mayor, the City Council, the Monroe Public Safety Department, their officers, directors, employees and agents and their successors, heirs and assigns (the "Releasees") from any and all actions, suits, debts, monies, covenants, agreements, damages, claims and demands of any kind whatsoever whether presently known or unknown under state or federal law which the estate or personal representative of Kim Medlin, has or may presently have. Specifically included in the release are any claims, causes of action or demands connected with Kim Medlin's stop, detention, unlawful seizure, detainment, any officer's attempt to extort sexual favors from Kim Medlin, any officer's sexual advances toward, and any restraint and infliction of injuries on Kim Medlin resulting in her death. Such release includes but is not limited to claims due to wrongful death under N.C.G.S. § 28A-18-1 et. seq., claims for any damages under 42 U.S.c. § 1983, any due process claims, conspiracy claims, negligence claims, consequential damage claims, punitive damage claims, federal and state law claims, any or all common law and statutory claims, any claims arising out of the acts or transactions mentioned in Heaston's complaint filed in Case No. 3:99-CV-105, U.S. District Court, Western District of North Carolina, Charlotte Division, or that could have been alleged in the complaint, -claims for expenses, attorneys' fees claims or the like. 4. Duty Acknowledgement. Heaston specifically acknowledges that she has entered into this agreement in her representative capacity of Administrator of the Estate of Kim Medlin with the intent that it be binding on all of the entities she is legally entitled to represent in that capacity. She further acknowledges that the law imposes on her the duty and responsibility to distribute the proceeds of this agreement to the entities by law entitled to share in them. 5. Dismissal of U.S. District Court Case, Sharen Heaston. Administrator of the Estate of Kimberlv 10 Millen Medlin. Plaintiff v. The Citv Of Monroe. A Municival Corvoration. Defendant. Case No. 3:99-CV-105 filed in the Western District of North Carolina, Charlotte Division. Heaston agrees to withdraw and dismiss with prejudice all current pending claims in Sharen Heaston, Administrator of the Estate of Kimberly 10 Millen Medlin, Plaintiff v. The City Of Monroe, A Municipal Corporation, Defendant, Case No. 3:99-CV -105. 6. Form of Stipulation of Dismissal. The Parties agree to the entry of the Stipulation of Dismissal in the form set forth hereto in Exhibit A. - 2- 7. Order Approving Settlement Agreement and Release. The Parties wiU submit this Agreement for approval to the Court and ask the court to enter an order approving the settlement e on the terms and conditions stated herein. 8. Entire Agreement. The Parties dedare and represent that no promise or agreement except as herein expressed has been made to them, and that this agreement contains the entire agreement between the Parties, and the terms of this Agreement are contractual and not a mere recital. 9. Attorneys' Fees and Costs. Each Party shaH pay their own attorneys' fees and costs. e 10. Voluntary Agreement. Plaintiff hereby represents that she has read and understands the Agreement, has relied on counsel of her own choice and is voluntarily entering into this Agreement. This the 1L day of.1)... -U?Mn 1J 'Á¡)d cf!~ ¡¿ iQ-Æ~ Witness ..,; (SEAL) Sharen Heaston, Administrator of the Estate of Kimberly 10 MiUen Medlin e STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG I, a Notary Public of the County and State aforesaid, certify that Sharen Heaston, Administrator of the Estate of Kimberly 10 MiHen Medlin personaHy appeared before me this day and acknowledged the execution of the foregoing instrument. Witness my hand and official stamp or seal, this /ß ¡j> day of ~, 2001. e (Seal) ~Q,~ Notary Public My commission expires: 311~(?-oòt We consent to the settlement set out herein induding an terms and conditions. e ~ Brid edli ,Beneficiary -3- e e e e e ~u Sharen Heaston, Beneficiary This, thð0 day of -tfJ~ ,2001. By: Thomas . cNeely The 'lIon Building 22 West Trade Street Suite 2140 Charlotte, NC 28202 Telephone: (704) 376-3200 Attorney for Plaintiff COX, GAGE AND SASSER By: ~-~ Charles McB. Sasser The Carillon Building Suite 2160 227 West Trade Street Charlotte, NC 28202 Telephone: (704) 342-4200 Attorney for Plaintiff - 4- e e e e e ATE OF NORTH CAROLINA COUNTY OF 1fi3CKLENBURG Vf Wi 0 tJ CITY OF MONROE By: (SEAL) I, a Notary Public for said County and State, certify that S. Douglas Spell personally came before me this day and acknowledged that he is the City Manager of the City of Monroe and that, by authority duly given, the foregoing instrument was signed in its name by its City Manager, sealed with its seal. Witness my hand and notarial seal, this/.q-~day OfV~' 2001. (Seal) ¥~-- ~ '/17 tary Public My commission expires: ~%~ J;:J..J .;l. D () .;}. '~~ This, the /cf day of ' ,2001 JAMES, McELROY & DIEHL, P.A. By: ~ J- Edward T. Hinson, Jr. By: (/rL (An-~~' Jet1n S. Arrowood B .c::: e e e e e EXHIBIT A UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION NO: 3: 99 CV lOS-MU SHAREN HEASTON, ) ADMINISTRATOR OF THE ESTATE ) OF KIMBERLY 10 MILLEN ) MEDLIN, ) ) ) ) ) ) ) ) ) ) Plaintiff, STIPULATION OF DISMISSAL vs. THE CITY OF MONROE, A MUNICIPAL CORPORATION, Defendant. NOW COMES Plaintiff and Defendant and as evidenced by the attached signatures of the parties and their counsel, they enter into the following Stipulations to conclude this lawsuit: 1. All matters and things in controversy between these parties arising upon the pleadings or which could or might have been asserted have been resolved and compromised. 2. The Court has entered an Order approving the settlement. 3. Plaintiff dismisses her Complaint, with prejudice. 4. The above paragraphs render moot all pending motions. 5. Each side shall pay its own respective court costs and counsel fees. - 1 - e e e e e This, the ~ day of ~ ~) ~~~ SHAREN HEASTON, ADMINISTRATOR OF THE EST ATE OF KIMBERLY JO MILLEN MEDLIN CITY OF MONROE ,2001 - 2- A---?~ By:/~ ' Thomas A...,.Mffleely The CarilÎðn Building 227 West Trade Street Suite 2140 Charlotte, NC 28202 Telephone: (704) 376-3200 Attorney for Plaintiff COX, GAGE AND SASSER By: ~ ?u,i3.~ Charles McB. Sasser The Carillon Building Suite 2160 227 West Trade Street Charlotte, NC 28202 Telephone: (704) 342-4200 Attorney for Plaintiff JAMES, McELROY & DIEHL, P.A. BY:'~V-- E, ward T. Hinson, Jr. By: Á/t f'. .J r(/W;pd- Y i';.- JtSfm S. Arröwood .' athe . ne . Thompson Kell 600 South College Street Charlotte, North Carolina 28202 Telephone: (704) 372-9870 Attorneys for Defendant