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HomeMy Public PortalAbout1988_10_1195 MINUTES OF REGULAR MEETING OF LEESBURG TOWN COUNCIL, OCTOBER 11, 1988 A regular meeting of the Leesburg Town Council was held in the Council Chambers, 10 Loudoun Street, S.W., Leesburg, Virgin on October 11, 1988, at 7:30 p.m. The meeting was called to order by Mayor Robert E. Sevila with the invocation given by Mr. Tolbert, followed by the Salute to the Flag led by William Mulokey. Present were Mayor Sevila; Councilmembers James Clem; Christine Forester; Donald Kimball; Claxton Lovin; William Mulokey and Vice -Mayor John Tolbert, Jr. Staff members present were Town Manager Jeffrey H Minor, Assistant Town Manager Steve Brown; Acting Director of Planning Zoning and Development Jay Hicks and Director of Finance Paul York. PETITIONERS Hubbard Turner, 1107 Bradfield Drive, spoke concerning the traffic problems on Route 15 and turning into Country Club Drive. He asked the town to take some kind of action to alleviate these problems. Mr. Minor said the town was just finishing up a $370,000 project involving the realignment of Clubhouse Drive and the signalization of that intersection There will be a warning device further south that will help slow traffic down Once this project has been completed, it will help with the problem Mr. Turner described. Mr. Kimball said he endorsed Mr. Turner's comments. He said he lived in the same neighborhood and both he and his wife have the same problem of getting in and out of Country Club Drive. He said something needs to be done very soon at this intersection. Mayor Sevila asked Mr. Minor and Mr. Mason to check into this situation and report back to the Committee in November. Mr. Lovin reported he attended the Virginia Municipal League conference in Virginia Beach on October 2-4. He said he found it very educational and he complimented the Town Manager and his staff who have worked so hard on the municipal government complex. Leesburg won the VML's Achievement Award for community development for the design competition for the municipal ' government complex and it was very nice to attend the award dinner. Mr. Lovin expressed appreciation for the fine job Jay Hicks, Interim Director of Planning, Zoning and Development, has been doing. He passed on compliments regarding Mr. Hicks work which he received at the VML conference from Audrey Moore, Chair of the Fairfax Board of Supervisors, and from the Mayor of Manassas Park. Mr. Clem said he received a letter from Mr. Paul Trible of the United States Senate informing us the town has $66,617 to use for the Master Plan update for the airport. Mr. Kimball said he and Mrs. Forester had the privilege of doing the fust Listening Session He said they had an excellent turnout and the feedback they had was very positive from those present. He has a summary of the session which he will make available for review and consideration Mrs. Forester echoed Mr. Lovin's comments about the VML conference certainly congratulating Mr. Hicks and Steve Brown and the rest of the town staff for the fantastic display in the town area of the exhibit hall. She said that she attended the Vhtmia Tech two-day class for certifying Planning Commissioners along with Mr. Johnson and Mr. Phillips and they are going to try to complete the course by December 9 to become certified Planning Commissioners. At the end of December, five of the seven Planning Commissioners will be certified Planning Commissioners in the state of Virginia. She also expressed appreciation to the media for helping publicize the Listening Sessions, Mr. Tolbert said he attended the VML conference also and he agreed with all the good comments regarding the conference. He also announced that he and Mr. Clem will be chairing the Listening Session which is scheduled for Saturday, October 22, 10:00 am. to 12:00 noon ' MANAGER'S REPORT Mr. Minor said Council received a copy of the written Activity Report on Monday; He highlighted the following items: (1) Town staff is working on their goals report to Council This is the annual report which lists for each department their goals and objectives, as well as overall goals and objectives for his office. This report will be sent to Council later this week. (2) He commented on the Listening Session saying it was an excellent turnout. Many of the issues were not new but some were. He said he has asked staff to look at these issues. He said he I Minutes of October 11, 1988 page 2 thought the best way to handle this is that, after receiving the list, give Council an informal report on the Friday preceding the Listening Session on Saturday. (3) Mr. Minor complimented Jay Hicks also on the fine job he did at the VML conference. He said that Jay was one of the highlights of the program and that the town is excited to have someone that young and that new who is able to contribute to a national forum (4) Gary Huff has traveled to Virginia Beach to meet with the recreation board for access funding for Ida Lee Park. Mr. Huff said we are eligible for. a $200,000 plus grant for this project. (5) Mr. Minor said in addition to the town's quarterly Lamplighter, we will begin to publish Leesburg at Leisure which will be a quarterly recreation newsletter and will include a variety of recreation programs, description of various recreation facilities that we now have, a little letter from Mr. Huff, etc. This will provide another excellent image for our town and another source about recreation programs that are available to the citizens. (6) Another item followed closely by Council is our phase VI Storm Drainage project The anticipated bid date for opening of bids is December 1, 1988. This is something we have worked on for years and we are happy to be coming to the end of the road on this project. LEGISLATION At the request of Mr. Tom Nall, representing the applicant, a resolution denying the petition for Concept Plan approval and Town Plan amendment for Potomac Crossing South -was deferred for the present time and sent back to the Planning and Zoning Committee for further review. On motion by Mr. Clem, seconded by Mr. Tolbert, the following resolutions were proposed and ,�nAni ously adopted as consent items: WHEREAS, the Town and Janelle entered into that certain Deed of Lease and Operating Agreement dated as of August 25, 1987 (the "Lease'), whereby the Town leased to Janelle an approximately 2.4 acre parcel, more particularly described on Exhibit A attached thereto (the "Premises'); and WHEREAS, Janelle has assigned all of its right, title and interest into the Lease to Aviation Associates, L.P. ("Tenant') pursuant to an Assignment of Lease ("Assignment of Lease'); and WHEREAS, the Lease provides, among other things that the Tenant shall construct certain improvements on the Premises as more particularly set forth therein (the "Improvements'); and WHEREAS, Perpetual Savings Bank, F.S.B. (the "Bank') has issued its commitment letter dated August 23, 1988, whereby the Bank agrees to lend $2,400,000.00 to Tenant for the purpose of financing the construction of the Improvements (the "Loan'); and WHEREAS, the Town and Tenant wish to amend certain provisions of the Lease in order to facilitate the closing of the Loan as more particularly set forth in that certain First Amendment to Deed of Lease and Operating Agreement ("First Amendment) dated as.of October 12, 1988, by and between the Town and Tenant, the form of which is attached hereto and incorporated herein by this reference as Exhibit A and WHEREAS, the Town and Tenant wish to memorialize the Lease as provided pursuant to the provisions of Article XIII, Section 5 of the Lease by executing a Memorandum of Lease and recording the same among the land records of Loudoun County, Virginia, and WHEREAS, the Town and Tenant desire to more specifically set forth their agreement as to the completion of certain off-site improvements to the Premises which are more particularly set forth in that certain Side Letter of Agreement as presented to the Council at this meeting, and WHEREAS, as a condition precedent to the Bank funding the Loan the Bank has required that the Town execute and deliver to the Bank a Landlord's Estoppel Certificate and Non - Disturbance Agreement; and WHEREAS, there has been presented to this meeting the forms of the following documents relating to the transactions described above for the Town Council's consideration and approval, copies 1 1 1 97 Minutes of October 11, 1988 page 3 of which have been filed with the records of the Council; A. the First amendment to Deed of Lease and Operating Agreement; B. the Side Letter Agreement; C. the Memorandum of Lease; D. the Assignment of Lease; and E. the Landlord's Estoppel Certificate and Non -Disturbance Agreement (all of the foregoing and any other document, agreement, acknowledgement, instrument of certificate to be executed by the authorized officer on behalf of the Town in connection with the Lease and the Loan are herein referred to as the "Documents'). WHEREAS, for good and valuable consideration and in furtherance of the public purposes for which it was created, the Council proposes to execute or enter into the Documents listed above. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. The execution, delivery and performance of the documents by the town is hereby authorized. The documents shall be in substantially the forms submitted to this meeting, with such non -substantive changes, insertions or omissions as may be approved by the Mayor of the town, whose approval thereof shall be conclusively evidenced by the execution of any document containing any such change, insertion or omission. SECTION IL The Mayor is hereby authorized and directed to execute on behalf of the town the documents to which the town is party. The Mayor is further authorized to execute and deliver all instruments, documents, acknowledgments or certificates, and to do and perform all things and acts, as the Mayor shall deem necessary or appropriate in furtherance of the carrying out of the instruments referred to in this Resolution; and all such things and actions heretofore done or performed by the Mayor are in all respects approved, ratified and confirmed. ' FIRST AMENDMENT TO DEED OF LEASE AND OPERATING AGREEMENT THIS FIRST AMENDMENT TO DEED OF LEASE AND OPERATING AGREEMENT ("First Amendment') is made as of this 12th day of October, 1988, by and between the Town of Leesburg, Virginia, a Virginia municipal corporation (hereinafter referred to as "Landlord') and Aviation Associates L.P., a Virginia limited partnership (hereinafter referred to as 'Tenant"). WHEREAS, by that certain Deed of Lease and Operating Agreement dated the 25th day of August, 1987 (the "Lease'), Landlord leased to Janelle Aviation, Inc. ("Janelle") an approximately 2.4 acre parcel more particularly described therein on Exhibit A attached thereto (the "Premises'). WHEREAS, by that certain Assignment dated as of the 12th day of October, 1988, pursuant to Article XVII, Section 1 of the Lease, Janelle assigned all of its right, title and interest in and to the Lease to Tenant. WHEREAS, Article II, Section 5 of the Lease provides that in the event that Tenant fails to close on a $3,700,000.00 construction loan for the construction of certain improvements to the Premises on or before November 30, 1987, then Landlord may terminate the Lease by written notice to Tenant. WHEREAS, Landlord and Tenant wish to amend Article II, Section 5, to provide that Landlord's right to terminate the Lease shall be triggered by Tenant's failure to close a construction loan for. at least $2,400,000.00 on or before November 30, 1988. WHEREAS, Article III, Section 2 of the Lease provides that on the "Effective Date" (defined therein) Tenant shall pay to Landlord the a= of Three Hundred Thousand Dollars ($300,000.00). WHEREAS, Landlord and Tenant wish to modify the language of Article III, Section 2 of the Lease in order to clarify that the $300,000.00 payment by Tenant to Landlord is rent paid by Tenant to Landlord for the use of the Premises from the Effective Date until January 1, 1994. WHEREAS, Article V, Section 5 of the Lease obligates Tenant to construct hangar and office buildings containing not less that 54,000 square feet within five years of the Effective Date of the Lease and further provides that if Tenant is unable to construct office and hangar buildings MINUTES OF REGULAR MEETING OF LEESBURG TOWN COUNCIL, OCTOBER 11, 1988 98 Minutes of October 11, 1988 page 4 containing at least 54,000 square feet within the specified five year period, then Tenant shall be deemed to be in default of the Lease. WHEREAS, Landlord and Tenant wish to amend Article V, Section 5, to provide that if Tenant is unable to construct in the aggregate 54,000 square feet of office and hangar space on the Premises within five years of the Effective Date then, the Lease will terminate with respect to that portion of the Premises designated and referred to as the "Additional Land for Development" on the plat attached hereto as Exhibit A-1 and incorporated herein (the "Additional Development Land). WHEREAS, Landlord and Tenant wish to substitute Exhibit A-1 attached hereto for Exhibit A attached to the Lease. WHEREAS, Article II, Section 1 of the Lease sets forth a number of preconditions which must be satisfied prior to the date that the Lease becomes effective. NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledge, Landlord and Tenant do hereby agree as follows: 1. The parties hereto do hereby agree that for purposes of Article II, Section 1 of the Lease, the "Effective Date" of the Lease shall be deemed to be the 13th day of October, 1988. 2. Article 11, Section 5 of the Lease is hereby deleted in its entirety and replaced with the following language: Section 5. If Tenant fails to close on at least a Two Million Four Hundred Thousand Dollar ($2,400,000.00) construction loan for the construction of improvements to the Premises on or before November 30, 1988, then Landlord may terminate this Lease by written notice to Tenant in which event Landlord and Tenant shall have no further rights, one to the other hereunder. 3. Article III, Section 2 of the Lease is hereby deleted in its entirety and replaced with the following language: Section 2. In addition to the rent payable under Article III, Section 1, hereof, Tenant shall pay to Landlord the sum of Three Hundred Thousand Dollars ($300,000.00) as rent for the Premises from the Effective Date to January 1, 1994, to be due and payable in full on the Effective Date. 4. Article V, Section 5 of the Lease is hereby deleted in its entirety and replaced with the following language: The Tenant agrees to construct or obtain and install at its sole cost and expense, the hangars, office space and other equipment and improvements to comply with Landlord's requirement as specified in Landlord's "Request for Proposals" dated August 14, 1986. Tenant agrees to construct a building or buildings with hangar and office building or building with hangar and office spare containing an aggregate minimum of 54,000 square feet of hangar and office space. Construction of the hangar and office building(s) may be phased over the five year period measured from the Effective Date; provided however, that Tenant shall commence construction of at least 38,000 square feet of hangar and office space within twelve (12) months of the Effective Date. Should Tenant fail to construct an aggregate combined total of 54,000 square feet of hangar space and office space on the Premises within (5) years of the Effective Date, then (i) this Lease shall terminate on the fifth anniversary of the Effective Date with respect to the "Additional Development Land," as shown on Exhibit A-1 attached hereto and (u) this Lease shall remain in full force and effect with respect to the remaining portion of the Premises. 5. All references in the Lease to the planning, engineering, constructing, installing, or completing "the fust thirty-nine thousand (39,000) square feet" of improvements to the Premises are hereby amended to read "the first thirty-eight thousand (38,000) square feet, more or less." 6. Exhibit A of the Lease is hereby replaced with Exhibit A-1 attached hereto and F� 1 1 I Minutes of October 11, 1988 page 5 incorporated herein. 7. Other than as amended by this First Amendment, the Lease is hereby ratified and confirmed. 8. This First Amendment shall be binding upon the parties hereto and their successors and assigns - SIDE SIDE LETTER AGREEMENT THIS SIDE LETTER AGREEMENT is hereby made as of this 12th day of October, 1988, by and between the TOWN OF LEESBURG, a Virginia municipal corporation ("Landlord') and AVIATION ASSOCIATES, L.P., a Virginia limited partnership ('Tenant'). WHEREAS, by that certain Deed of Lease and Operating Agreement dated the 25th day of August, 1987 (the "Lease'), Landlord leased to Janelle Aviation, Inc. ("Janelle') an approximate 2.4 acre parcel more particularly described therein on Exhibit A attached thereto (the 'Premises'). WHEREAS, by that certain Assignment dated as of the 12th day of October, 1988, pursuant to Article XVII, Section 1 of the Lease, Janelle assigned all of its right, title and interest in and to the Lease to Tenant. WHEREAS, Article V, Section 6 of the Lease provides that, as a part of Tenant's development of the Premises, certain improvements must be made to Route 643, the intersection of Route 643, and the Airport access road (the "Route 643 Improvements') and certain off-site drainage facilities need to be constructed (the 'Drainage Improvements'). WHEREAS, Article V, Section 6 further provides that the total cost of the Route 643 Improvements and the Drainage Improvements shall be shared proportionally by the Landlord and Tenant based upon a percentage of use as determined by Campbell, McQueen and Pairs Engineers. WHEREAS, Tenant and Landlord desire to specify and clarify their respective rights and obligations under Article V, Section 6 pursuant to the provisions set forth in this Side Letter Assignment. NOW, THEREFORE, for and in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant do hereby agree as follows: 1. Tenant, through its contractor, William A. Hazel, Inc. ("Hazel'), will construct the Route 643 Improvements and the Drainage Improvements pursuant to the terms of a contract by and between Hazel and the Tenant dated as of October _ 1988. 2. Landlord, on a monthly basis and within fifteen (15) days of receipt of a copy of Hazel's invoice to Tenant for the cost of construction of the Route 643 Improvements and the Drainage Improvements, shall pay directly to Tenant ninety-five percent (95%) of the amount invoiced by Hazel relating to any and all work performed by Hazel associated with the construction of the Route 643 Improvements and eighty-seven and one-half percent (87.5%) of the amount invoiced by Hazel relating to the construction of the Drainage Improvements less ten percent (10%) retainage until Hazel's work is fifty percent (50%) completed and zero percent (0%) retainage thereafter. Retainage on each of the above -referenced projects will be paid by Landlord at the time of completion and acceptance of each project by the Landlord's Director of Engineering and Public Works. 3. Tenant shall cause Hazel to obtain the following insurance policies or certificates: (a) Workmen's compensation insurance for all employees working on the projects; (b) Liability insurance in amount not less than $1,000,000 for injuries, including wrongful death, for any one person and subject. to the same limit for each person, in an amount equal to not less than $1,000,000 on account of any one accident; (c) Property damage insurance in an amount equal to not less than $1,000,000 for damages on account of any one accident and in an amount equal to not less than $1,000,000 on account of all accidents. Certificates shall be furnished to Landlord, naming it an additional insured with respect to the liability and property damage insurance referred to herein. Tenant or Hazel shall pay the cost, if any, of the issuance of these certificates. Minutes of October 11, 1988 page 6 4. This Side Letter Agreement shall be binding upon the parties hereto and their successors and assigns and may only be modified in writing by both parties hereto. MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE is hereby made as of this 13th day of October, 1988, by and among the TOWN OF LEESBURG, a Virginia municipal corporation ("Landlord) and AVIATION ASSOCIATES L.P., a Virginia limited partnership. A. Landlord and Janelle Aviation, Inc. CJanelle") entered into a Deed of Lease and Operating Agreement dated the 25th day of August, 1987, (the "Initial Lease"), whereby Landlord leased to Janelle and Janelle leased from Landlord a certain parcel of property situate in Loudoun County, Virginia, more particularly described on Exhibit A attached hereto and incorporated herein (the "Premises"). B. Pursuant to Article XVII, Section 1 of the Lease, Janelle assigned all of its right, title and interest in and to the Lease to Tenant by that certain Assignment dated as of the 12th day of October, 1988. C. By that certain First Amendment to Deed of Lease and Operating Agreement dated as of the 12th day of October, 1988 (the "First Amendment"), Landlord and Tenant amended certain provisions of the Initial Lease. D. The Initial Lease as amended by the First Amendment is hereinafter referred to as the "Lease." E. Pursuant to Article XIII, Section 5 of the Lease, Landlord and Tenant wish to enter into this Memorandum of Lease to be recorded among the land records of Loudoun County, Virginia. NOW, THEREFORE, notice is hereby given that Landlord in consideration of the rents, covenants, and agreements on the part of the Tenant to be paid and performed, has let and demised to Tenant the Premises in accordance with the following terms and conditions: I. The initial term of the Lease shall be for a period of forty (40) years, commencing on I the 13th day of October, 1988 and expiring as provided in the Lease. 2. If the Landlord has the authority to continue the Lease for an additional forty years upon the expiration of the initial forty -year term of the Lease, then Tenant may extend the Lease for an additional forty years. 3. The names and addresses of the parties to this Lease are as follows: Landlord: Town Manager Attention Assistant Town Manager Town of Leesburg in Vagina P. O. Box 2278 Leesburg, Virginia Tenant: Aviation Associates L.P. Leesburg Municipal Airport P. O. Box 2278 Leesburg, Virginia 22075 Attention James M. Haynes, Jr. 4. All of the terms, conditions, provisions and covenants of the Lease are incorporated in this Memorandum of Lease by reference as though written out at length herein, and the Lease and this Memorandum of Lease shall be deemed to constitute a single document. Ii, the _went there is a conflict between any of the provisions of this Memorandum of Lease and the provisions of this Lease, the provisions of the Lease shall govern. 5. IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Memorandum. AGREEMENT OF LEASE FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency whereof are hereby acknowledged, JATIF.LLE AVIATION, INC., a Maryland corporation ("Assignor), does hereby transfer, assign, convey, and set over unto AVIATION ASSOCIATES, L.P., a Virginia limited 101 Minutes of October 11, 1988 page 7 Partnership ("Asaignee"), all of the Assignor's right, title, and interest in, under, and to that certain Deed of Lease and Operating Agreement dated August 25, 1987, between the Assignor and the Town of Leesburg, Virginia (the "Lease") Assignee accepts the foregoing assignment and agrees to observe and perform all conditions, covenants, and obligations the lessee is required to perform or observe under the Lease. IN WITNESS WiIEREOF, Assignor and Assignee have caused these presents to be executed under seal as of the 12th day of October, 1988. LANDLORD'S ESTOPPEL CERTIFICATE AND NONDISTURBANCE AGREEMENT THIS LANDLORD'S ESTOPPEL CERTIFICATE AND NONDISTURBANCE AGREEMENT is made this _day of October, 1988, by the TOWN OF LEESBURG, Virginia, a Virginia municipal corporation. The Town of Leesburg, Virginia ("Lessor'), is the landlord under that certain Deed of Lease and Operating agreement dated August 25, 1987, between the Lessor and Janelle Aviation, Inc., a Maryland corporation ("Janelle") pursuant to which Janelle leased from Lessor for a term of forty (40) years certain real property located in Loudoun County, Virginia, described in Exhibit "A" attached hereto (the "Premises"). Janelle's interest in, to and under the Lease were assigned to Aviation Associates, L.P., a Virginia limited partnership ("Lessee'), pursuant to an Assignment of Lease dated as of October 12, 1988. The Lease was modified by that certain First Amendment to Deed of Lease and Operating Agreement dated as of October 12, 1988. The Deed of Lease and Operating Agreement as assigned and so amended is hereinafter referred to as the "Lease." The Lease if evidenced by a Memorandum of Lease dated as of October 13, 1988, and recorded in Book , Page _ of the records of the Clerk of the Circuit Court of Loudoun County, Virginia In connection with a loan from Perpetual Savings Bank, F.S.B. ("Lender') to Lessee, in the original principal amount of $2,400,000.00 (the "Loan) for the improvement of the Premises and construction of a fixed base airport operation consisting of approximately 25,000 square feet of hangar space and approximately 13,000 square feet of office space, the Lessee has or will deliver to the Lender as security for the Loan a leasehold Deed of Trust and a Collateral Assignment of Leases, ' Rents and Profits encumbering such improvements and Lessee's leasehold estate created by the Lease. As a condition to making the Loan, Lender requires the execution by Lessor of this Certificate, and Lender will rely on this Certificate in mating such Loan. Lessor hereby certifies, represents to and agrees with Lender as follows: 1. The Lease is in full force and effect, and is the valid and binding obligation of Lessor. 2. Lessor has consented to the assignment of Janelle's rights, title and interest in, to and under the Lease to Aviation Associates, L.P., and recognizes Aviation Associates, L.P., as the tenant under the Lease. 3. All payments of rent and other monies due and payable under the Lease by Lessee have been made through the date hereof. 4. There are currently no defaults under the terms of the Lease and, to the best of Lessor's knowledge, no state of facts exists which with the giving of notice and/or the lapse of time could constitute a default under the terms of the Lease. 5. There are currently no setoffs, defenses, or counterclaims by Lessor against Lessee. 6. Except as set forth herein, there have been no modifications of the Lease. 7. Lessor has approved the construction of approximately 38,700 square feet of office and airplane hangar space on the Premises, in accordance with the Tenant's proposal dated October 7, ' 1986, which has been reviewed and approved by the Lessor. 8. Lessor has entered into that certain Side Letter Agreement dated as of October 12, 1988 between Lessor and Lessee, detailing the agreement of Lessor and Lessee with respect to the completion by Lessee's contractor, William A. Hazel, Inc., of those items specified in Article V, Section 6, and the payment therefor. 9. Lessor agrees to be bound by this certificate and acknowledges that it is estopped from malting any claim which would contradict the above. 10. Lessor hereby recognizes Lender as the beneficiary under a first lien deed of trust on the leasehold created by the Lease. Lessor hereby represents that the Premises are free and clear of any encumbrances, liens, defects, leases, easements, restrictions and agreements, except for the Lease and 102 Minutes of October 11, 1988 page 8 the lien created by the Loan, and the matters contained in Part II, Schedule B of that certain Commitment for Title Insurance No. 739838 dated August 7, 1988 from Ticor Title hisraocn Company. 11. Lessor will not take any action to cancel, terminate, annul or modify the Lease or dispossess or evict Lessee from the Premises without giving the Lender prior written notice thereof. Lessor shall give Lender written notice and a period of at least thirty (30) days within which the Lender may, at its option, cure any default by the Lessee under the Lease. Said notice shall be deemed to have been given when delivered or mailed by first class registered or certified mail, postage prepaid, addressed to: Perpetual Savings Bank, F.S.B. c/o Perpetual Mortgage Company 1951 Kidwell Drive Vienna Virginia 22180 Attention Ralph G. Falcone 12. Lessor agrees that if Lender shall foreclose under the Deed of Trust or if Lender shall accept an assignment of the Lease from Lessee in lieu of foreclosure or if Lender shall otherwise come into possession of the leased premises, Lessor will recognize Lender, Lender's assignee, or Lender's purchaser at a foreclosure sale, as the tenant under the Lease, without further consent or action by Lessor. Lender shall be liable for rent and other obligations of Lessee under the Lease on a prorated basis only for the period of time the Lender is in actual possession of the Premises. 13. The Lessor acknowledges that the Lender has or will have a security interest in all of Lessee's interest in personal property now or hereafter located at or about the Premises pursuant to the Deed of Trust notwithstanding anything to the contrary in the Lease. So long as any obligations are owing by the Lessor to the Lender, the Lender's security interest shall in all respects and in all events be superior to all interest and rights of the Lessor in the personal property collateral, including all rights or interests available under any distraint statute, all rights of levy and all rights and interests under the Lease. 14. Lessor agrees that Lender may enter upon the Premises and may remove any personal property collateral for the Loan ' IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the day and year first hereinabove written. WIIEREAS, the Town of Leesburg in February 1987 entered into an engineering services agreement with Camp Dresser & McKee, consulting engineers, for evaluation of the adequacy of the existing water distribution system, development of a computerized water system model, and recommendation of a capital improvements program which addresses the location and capacity of future water distribution system needs from 1987 to the year 2010; and WHEREAS, Camp Dresser & McKee has developed four alternative plans for meeting the future needs of the town's water distribution system; and WHEREAS, Alternative No. 1 is recognized as the most efficient, economic and practical plan for water distribution system management for the Town of Leesburg taking economic, social and implementation criteria into account; and WHEREAS, this alternative has been reviewed and is recommended by the Planning Commission, staff and the consulting engineer; and WHEREAS, this plan is consistent with the current policy for public utBities inludsd 1r the 1988 Leesburg Town Plain IMEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. The September 1987 Water System Master Plan as prepared by Camp Dresser & McKee is adopted, subject to minor technical corrections authorized by the Director of Engineering and Public Works and Utilities. SECTION H. Alternative No. 1 as described in the plan is selected as the official plan for enlarging and upgrading the water distribution system for the Town of Leesburg in Virginia 1 1 Minutes of October 11, 1988 page 9 WHEREAS, Ours Land Trust, the developer of Virginia Village Parcel D Section I has completed public improvements in accordance with approved plans and town standards, and these have been inspected and approved THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. The irrevocable letter of credit No. L/C C-165 from Continental Federal Savings Bank in the amount of $238,397.50 is released, and a new corporate surety bond for maintenance guarantee in the amount of $11,920.00 from Hartford Fire Insurance company in a form approved by the town attorney is approved, and shall be in effect for a period of one year from this date. SECTION II. This release is contingent upon delivery of a properly executed instrument conveying unto the town all such improvements and easements free of any liens or changes. WHEREAS, the Town's director of Engineering and Public works has reviewed the public improvements installed to date for Paxton Subdivision Section I and certified that the value of work performed exceeds $208,000.00; and WHEREAS, an irrevocable letter of credit from Equitable Federal Savings and Loan in the amount of $260,000.00 has been provided by the developer and approved by Council to guarantee installation of public improvements for Paxton Subdivision Section I. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Vagina as follows: SECTION I. The irrevocable letter of credit from Equitable Federal Savings and Loan in the amount of $260,000.00 is reduced for $52,000.00. SECTION II. The Town Manager shall notify the developer that liability for the letter of credit funds has been reduced as outlined in Section I of this resolution, and that this reduction does not constitute acceptance of public improvements by the Town or relieve the developer of responsibilities outlined in the contract for public improvements for Paxton Subdivision Section I. RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. The manager shall execute the contract for public improvements for the improvements shown on the plans approved by the Director of Engineering and Public Works for Linden Hill. SECTION II. The extension of municipal water and sewer for Linden Hill is approved in accordance with Sections 15-9 and 19-18 of the Town Code. SECTION III. An irrevocable bank letter of credit in a form approved by the town attorney from Continental Federal Savings and Loan of Fairfax; Virgin» in the amount of $200,4AS.00 is approved as security to guarantee installation of the public improvements shown on plans approved by the Director of Engineering and Public Works for Linden Hill. RESOLVED by the Council of the Town of Leesburg in Virginia as follows: 103 104 Minutes of October 11, 1988 page 10 SECTION I. The manager shall execute the contract for public improvements for the improvements shown on the plans approved by the Director of Engineering and Public Works for the Janelle Jet Center. SECTION U. The extension of municipal water and sewer for the Janelle Jet Center is approved in accordance with Sections 15-9 and 19-18 of the Town Code. SECTION III. A performance guarantee in a form approved by the town attorney in the amount of $124,333.00 is approved as security to guarantee installation of the public improvements shown on plans approved by the Director of Engineering and Public Works for the Janelle Jet I Center. AYE: Councilmembers Clem, Forester, Kimball, Lovin, Mulokey, Tolbert and Mayor Sevila NAY: None On motion by Mr. Tolbert, seconded by Mrs. Forester, the following resolution was proposed and unanimously adopted. WHEREAS, the Council of the Town of Leesburg (the 'Town Council') has adopted Ordinance No. 80-0-6 adding a new chapter 5.1 to the town code of Leesburg, Virginia ('Town Code') for the purpose of establishing regulations and procedures governing cable television systems and the granting of cable television franchises within the town of Leesburg, and WHEREAS, consistent with Chapter 5.1 of the Town code and pursuant to Ordinance No. 80- 0-15 adopted on October 14, 1980, the Mayor and Town Council granted a cable television franchise to Catoctin Cable Communications, Inc., (the "Franchise); and WHEREAS, the Mayor and Town Council entered into a Franchise Agreement with Catoctin Cable Communications, Inc., dated October 14, 1980, evidencing the grant of the Franchise (the "Franchise Agreement'); and ' WHEREAS, by Resolution No. 85-62 of the Town of Leesburg, Mayor and Council approved the transfer of the CATV Franchise to Prime Cable of Maryland Limited Partnership ("Prime Cable') on May 1, 1985; and WHEREAS, Prime Cable has requested that the Mayor and Town Council authorize the sale and transfer, directly or indirectly, of 100% of the corporate stock of its general partner, Prime Cable of Maryland, Inc. ("PCMI'), as well as 100% of the limited partnership interests in Prime Cable to Maryland Cable Corp., a wholly owned subsidiary of Maryland Cable Holdings Corp., a corporation controlled by ML Media Opportunity Partners, L.P., a Delaware limited partnership and upon the contemporaneous liquidation of Prime Cable and the contemporaneous liquidation of PCMI and the direct and indirect shareholders of PCMI, for the Leesburg cable television Franchise to be held and the cable television system to be owned directly by Maryland Cable Corp.; and WHEREAS, in accordance with Article III of Chapter 5.1 of the Town Code Prime Cable has requested the Council to consider its proposed transfer and adopt a resolution as required by said Article III, Section 5.1-8, thereof to authorize the transfer of the Leesburg cable television Franchise from Prime Cable to Maryland Cable Corp; and WHEREAS, Maryland Cable Corp. has filed the required application for consent to transfer of the Town of Leesburg's CATV Franchise Agreement, paid the required application fee and has provided proof that it possesses the requisite qualifications to operate and maintain the CATV system in the Town of Leesburg-, and WHEREAS, the Town of Leesburg Cable Televi.4ion Ac1vi.=ory Committee hes reviewed ' Maryland Cable Corp.'s application for consent to the transfer of the Franchise, and materials dated August 22, 1988, September 1, 1988 and September 13, 1988 from Maryland Cable Corp. that document commitments to improve cable television service in Leesburg and has unanimously recommended that the Council consent to the transfer. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. Prime Cable is authorized to transfer its cable television franchise with the Town of Leesburg through the series of transactions described above to Maryland Cable Corp. SECTION II. This consent is granted under the conditions that Maryland Cable Corp. agrees log Minutes of October 11, 1988 page 11 to comply with all the provisions of the aforesaid Franchise Agreement, the Cable Television Ordinance of the Town of Leesburg, its application for the transfer of the Franchise (including funding of the corporation), and the commitments included in the statements set forth in the materials dated August 22, 1988, September 1, 1988, and September 132, 1988 from Maryland Cable Corp. referenced above. SECTION M. Prime Cable is released from any and all of its obligations to the Town of Leesburg under the aforesaid CATV Franchise from and after the effective date of the transfer of the Franchise to Maryland Cable Corp. ' SECTION IV. The Town Manager is directed to inform Prime Cable and Maryland Cable Corp. of adoption of this Resolution in writing by furnishing them with executed copies of this Resolution authorizing the transfer of the cable television Franchise for the Town of Leesburg from Prime Cable to Maryland Cable Corp. SECTION V. The transfer of the Franchise to Maryland Cable Corp. will become effective upon the posting of the corporate surety bond set forth in Section VII hereof, the filing of the Acceptance referenced in Section VIII hereof and the approval as to legal form of both the bond and the Acceptance by the Town Attorney. SECTION VI. Authorizations and approvals hereby given are conditioned upon consummation of the closing of the approved transfer of ownership of corporate stock and limited partnership interests and mergers and liquidations and transfer of assets and business and all rights under the Franchise Agreement within one hundred twenty (120) days of the date of this Resolution. SECTION VII. Any time after adoption of this resolution, but in no event later than, thirty (30) days after consummation of the sale, transfer or assignment Maryland Cable Corp. shall furnish a corporate surety bond in the penal sum of $100,000 to the Town of Leesburg in a form approved by the Town Attorney to guarantee the performance of Maryland Cable Corp. with all of the terms of the aforementioned Franchise Agreement dated October 14, 1980, and with all conditions of the transfer of the Franchise set forth in this Resolution, which said bond shall be in force for a period of five years from the effective date of transfer. SECTION VIII. Maryland Cable Corp. shall file with the Town Manager any time after adoption of this resolution, but in no event later than within thirty (30) days after consummation of the sale, transfer or asignment, an unconditional Acceptance of the terms of this Resolution. SECTION DC Maryland Cable Corp. and Prime Cable shall reimburse the town of Leesburg for reasonable consultant costs associated with the transfer. SECTION Y- Maryland Cable Corp. may pledge, mortgage, hypothecate or otherwise transfer, as may be required, an interest in the cable television system to any lender in order to obtain financing for the cable television system, and Maryland Cable Holdings Corp. is authorized to pledge, mortgage, hypothecate or otherwise transfer, as may be required, its equity interest in Maryland Cable Corp. in connection with such financing. Such transfer, pledge, mortgage or hypothecation may, if required by the lender, include the authority to sell the cable television system or effect a change in control of the franchisee, subject to consent of the Town Council, upon mortgage default by the franchisee or Maryland Cable Holdings Corp. Such approval shall not be unreasonably withheld. In this event, any such sale or transfer of control approved will require the new owner to comply with all terms and conditions of this Resolution, as well as the original Franchise Agreement and Franchise Ordinance. AYE: Councilmembers Clem, Forester, Kimball, Lovin, Mulokey, Tolbert and Mayor Sevila NAY: None ------ POLI.cava a "' fflmnlMy MIN 1&rrrWrrLM1 FO ' RA CE AUTOMATED .RECORDS MANAGEMENT SYSTEM On motion by Mr. Tolbert, seconded by Mr. Clem, the following resolution was proposed and unanimously adopt WHEREAS, on July 15, 1988, the town received seven proposals from computer software MINUTES OF REGULAR MEETING OF LEESBURG TOWN COUNCIL OCTOBER 11,1988 vendors in response to our RFP to provide the Police Department with an automated records management system; and WHEREAS, of the seven proposals received, four were selected for demonstrations of the N Minutes of October 11, 1988 page 12 software proposed; and WBEREAS, from these demonstrations it was determined that Business Records Corporation of St. Cloud, Minnesota offered the product that best meets the Police Department's present and future needs. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: SECTION I. The manager is authorized to enter into a contract with Business Records Corporation for the purchase of their public protection system software application at a cost of ' $14,500 and for the purchase of an IBM 5363-P10 computer with related system software at a cost of $12,840. SECTION 11. The manager is authorized to enter into a contract with IBM corporation for the purchase of a 4224 printer and 5250 emulation package at a cost of $3,992. SECTION III. The FY budget provides funding for this acquisition in the amount of $27,000, therefore, to complete this procurement an appropriation in the amount of $4,332 is authorized from the unappropriated General Fund balance to Account No. 200.3101.700.070, Data Processing Equipment. AYE: Councilmembers Clem, Forester, Kimball, Lovin, Mulokey, Tolbert and Mayor Sevila. NAY. None On motion duly made and seconded, the meeting was adjourned. Clerk of Council rt E. S&Vila, Mayor I 1