HomeMy WebLinkAboutSE202300006 Agreements 2023-02-22 (2)SITE LICENSE AGREEMENT (SLA)
T S SITE LICENSE AGREEMENT ("Agreement") is entered into as of the txJ day of
Nb (, 2011, (the "Effective Date") by and between Williams Pipeline Services
Company, a Delaware corporation ("Licensor") and Virginia PCS Alliance, L.C., a Virginia
limited liability company, d/b/a NTELOS ("Licensee") (collectively referred to as "the Parties").
RECITALS
Throughout the United States ofAmerica, Licensorhas rights in certain structures owned or
used by some of its affiliates, including interstate pipeline systems which transport energy resources.
Licensee wishes to be granted a right of use by Licensor on a non-exclusive basis certain portions of
the strictures for the purposes and upon the terms and conditions specified below in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
DEFINITIONS
"Affiliate" shall mean, with respect to any person or entity, anyrelative of any natural person and any
entity which directly or indirectly controls, or is under common control with or controlled by, such
person or entity (and "control" shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies, whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"Appurtenance" refers to any antenna, group of related antennae, or communications devices,
including transmission or telecommunication lines, attached to a tower or structure, normally at the
same specific height or altitude, which are used to provide a common communication service.
"Commencement Date" shall be stated on Attaclnnent 1 and shall be the commencement oftheteim
of the License at that particular Site.
"Communications Facility" refers to all umnamred communications equipment and related
communications facilities, peripherals, or ancillaries on the Premises, belonging to a single party,
that are required, either directly or indirectly, for that entity's communications to occur.
"Effective Date" is the commencement of this Agreement as set forth above.
"Fixture" is an article, structure, or formation which has been so annexed to the realty that it is
regarded as part of the real property or is not generally removable without injury to the Premises.
"Governmental Approval" is all govermnental licenses, permits, approvals or other consents required
for Licensoe's use of the Premises.
"Past Due Interest Rate" is the maximum rate allowed under the law of the state where the Site is
located.
"Premises" refers to the area, including the tower or communications structure, and related
underlying real property right for which Licensee has secured a right of use. Premises do not include
the building or structure housing the transmitters or other ground -level communications equipment.
"Site" is the specific, measurable space on a tower for which a right of use has been granted to place
an appurtenance.
"Underlying real property right" refers to the original exclusive right, vested either through legal
ownership, beneficial ownership, or private ownership, in real property by a person or entity that not
only controls and dictates ownership and possession of the real propertybut also the right ofuse and
enjoyment for lawful purposes.
"Upgrade" refers to any enhancement, reflecting increased effectiveness or efficiency, in
communication capacity.
1. SITE LICENSE AGREEMENT AND SITE DESCRIPTION AGREEMENT
These agreements contain the basic terms and conditions upon which the Licensee is granted
a right of use to each Site. Subject to the terms and conditions contained in this Agreement,
Licensor grants a right of use to Licensee and Licensee is granted a right of use by Licensor to the
Site and Premises. The property, and any structure located on the property, owned, leased or
licensed by Licensor will be described on Attachment 1. If applicable, Attachment 1 for a particular
Site will also describe any ground space granted for placement and operation of Licensee's
equipment and facilities. Licensee's equipment and facilities on the Site are described in Attachment
1 and in accordance with the terms of this Agreement.
Licensee may record a memorandum of this Agreement. Upon termination for any reason,
Licensee will record a notice of termination, if Licensee previously recorded a memorandum.
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2. USE
The Premises may be used by Licensee only for the installation, operation and maintenance of
its Communications Facility. Each item of equipment installed, maintained, and operated as pail of
the Communications Facility at the Site must be described in complete detail in Exhibit 2.
Licensee agrees to comply, at its sole expense, with all laws, orders, ordinances, regulations
and directives of applicable federal, state, county, and municipal authorities or regulatory agencies,
including, but not limited to, the Federal Communications Commission ("FCC"). Licensee, at its
sole expense, shall obtain all necessary licenses, permits or othergovermnental approvals needed for
Licensee's use of the Premises.
Licensee agrees to operate the Communications Facility in a manner that does not interfere
with the operations on the Premises of Licensor or any other prior existing users of the Premises,
Licensee understands and agrees that itmaybe responsible for anycosts and expenses related to any
required installation of ice shields and other peripherals which may be required for Licensee's
successful use of the Premises. The recommendation as to which peripherals are required shall be
made on a Premises by Premises basis.
The Communications Facility, equipment, improvements, fixtures, and personal propertyof
Licensee on the Site shall be and remain the personal property of Licensee even though some or all
ofitmaybephysicallyattachedtotheland. Licensee shall remove all personal property of Licensee
from the Site upon expiration or termination of this Agreement and the Site shall be restored to its
original condition, reasonable wear and tear expected. Notwithstanding the foregoing, upon
Licensor's approval, Licensee may not be required to remove any building, concrete pads or
underground cables or wires upon the expiration or termination of this Agreement.
TERM
The primary tern of this Agreement is for five (5) years commencing on the Effective Date
set forth above. The term will commence on the Commencement Date stated on Attachment 1 and
will terminate as set forth on Attachment 1 , unless otherwise tenninated as provided in this
Agreement.
Licensee may enter the Premises upon forty-eigbt (48) hours written notice, prior to the
Commencement Date to the extent such entry is required for engineering surveys, inspections, or
other reasonably necessary tests prior to construction and installation ofthe Cormnunications Facility
as agreed to in Attachment 1 and as specified in Sections 7 and 8 of this Agreement for such pre -
Commencement Date work. The Licensee may not begin operating the Communications Facilities
on a continuous basis until tests have been completed to demonstrate that the operation of the
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Licensee's facilities will not cause objectionable interference to the operations of the current users of
the Premises. The correction of any such interference will be Licensee's sole responsibility.
4. TERMINATION BY LICENSOR
4.1 For Default
4.1.1 Interference. It shall be the duty of the Licensee to immediately correct any
interference caused by its Communications Facilities. Anything in this Agreement to the contrary
notwithstanding, Licensormaintains the right to suspend indefinitely Licensee's use ofthe Premises
if interference is not immediately removed. During the suspension of Licensee's operations,
Licensee maintains a duty to pay all fees while remedying the interference.
In addition, Licensor has the right to permanently terminate this Agreement
upon ten (10) days prior written notice if any Communications Facilities placed on the Premises by
Licensee unreasonably interfere with any other Communications Facilities located at the Premises
and Licensee fails to resolve such interferenceproblem immediately, whether these Communications
Facilities belong to Licensor, its affiliates, or any other party. The extent to which the interference is
or becomes unreasonable shall be determined by Licensor in connection with any Licensor affiliate
which owns, operates, or uses the Premises, exercising reasonable business judgment.
4.1.2 Failure to Pay License Fee. If Licensee fails to pay any Fee or other sums
payable by Licensee as prescribed in Section 5 for the applicable Site within fifteen (15) days after
receipt of written notice from Licensor, Licensor has the right to terminate this Agreement, and all of
Licensee's rights in the Site.
Breach. If Licensee fails to perform in accordance with any term of this Agreement and such failure
continues for more than twenty (20) days after receipt of written notice finm Licensor, Licensor has
the right to terminate this Agreement and all of Licensee's rights to the Premises granted on a Site.
4.1.3 Insolvency. If (i) any petition is filed by or against Licensee, under any
section or chapter of the present or any future federal Bankruptcy Code or under any similar law or
statute of the United States or any state thereof (and with respect to any petition filed against
Licensee, such petition is not dismissed within thirty (30) days after filing), or Licensee is adjudged
bankrupt or insolvent in proceedings filed under any section or chapter of the present or any future
federal Bankruptcy Code or under any similar law or statute of the United States or any state thereof;
or (ii) if receiver, custodian, or trustee is appointed for Licensee or for any ofthe assets ofLicensee
and such appointment is not vacated within thirty (30) days of the date ofthe appointment, or (iii) if
Licensee becomes insolvent or makes a fraudulent transfer, Licensor has the right to terminate this
Agreement, and all of Licensee's rights in the Site
Abandonment. If Licensee, before the expiration of Attachment 1, without the written consent of
Licensor, vacates the Site or abandons possession, or uses the same for purposes other than those for
which the Site is licensed, or ceases to use the Site for the purposes specified in this Agreement,
Licensor has the right to terminate this Agreement and all of Licensee's rights to the Premises
granted on a Site. However, Licensee shall not be in default under this Agreement if Licensee
temporarily vacates or ceases to use the Premises during any period of repair, renovation,
replacement or rebuilding of the Communications Facility or due to force majeure conditions as
described in Section 21.8 of this Agreement so long as Licensee diligently and in good faith
undertakes to cure the same.
For Reasons other than Default
4.1.4 Federal Energy Regulatory Commission ("FERC") Authority. Licensor has
the right to terminate this Agreement at anytime upon anyregulatorydisallowance ofthe Agreement
though which Licensor has secured its rights to use the facilities, including any disapproval of the
cost allocation formula incorporated in such agreement between Licensor and any of its affiliates.
4.1.5 Changes in Underlying Real Property Rights. Licensor has the right to
terminate this Agreement, without any liability to Licensee upon any change in the Underlying Real
Property Right that is beyond the control of Licensor and interferes with Licensee's use of the
Premises and Licensoe's rights to the Premises.
Remedies
In the event of default by Licensee as described above, in addition to termination of this
Agreement, Licensee will then become liable for damages equal to the total of
4.1.6 the actual costs of recovering the Site;
4.1.7 the Fee earned as of the date of termination, plus interest at the Past Due
Interest Rate from the date clue until paid;
4.1.8 the amount by which the Fee and other benefits that Licensor would have
received under this Agreement for the remainder of the term under the Agreement after the time of
award exceeds the amount of the fair market rental value for the remainder of the tern of the
Agreement; and
4.1.9 all other sums of money and damages owing by Licensee to Licensor.
TERMINATION BY LICENSEE
For Licensor Default:
4.1.10 If Licensor breaches of any representation, warranty or agreement set forth in
this Agreement and such breach is not cured within thirty (30) days after written notice from
Licensee to Licensor of such breach; or
4.1.11 if Licensor permits or suffers the installation and existence of any
improvement (including, without limitation, transmission or reception devises) in or around the
Premises which materially interferes with the proper transmission or reception by Licensee's
Communications Facility or otherwise fails to perform or observe any other term of this Agreement,
including terms and conditions in this Agreement, and such failure continues for more than thirty
(30) days after written notice fiom Licensee,
Then, Licensee may at Licensee's option upon written notice:
4.1.12 terminate this Agreement; or
4.1.13 incur any expense reasonably necessary to perform the obligation of Licensor
specified in such notice and invoice Licensor for the actual expenses together with interest from the
date named at the Past Due Interest Rate. Any invoice shall be accompanied by documentation
detailing actual expenses.
In addition to any other rights to terminate this Agreement, Licensee has the right to terminate
this Agreement upon sixty (60) days prior written notice if:
4.1.14 any certificate, permit, license or approval affecting Licensee's ability to use
the Premises in the manner originally intended by Licensee is rejected, but only if such rejection is
not the result of Licensee's negligence or willful commission or omission of any act; or
4.1.15 if any previously issued certificate, permit, license or approval is canceled,
expires, lapses, or is otherwise withdrawn or terminated by the applicable governmental agency, so
long as such actions are not the result of the negligence or willful act or failure to act by the
Licensee, or
4.2 Removal of Property
In the event ofternination, Licensee shall berequired to remove its property, equipment and
improvements that are not Fixtures, from the Premises in conformity with the provisions of Section
16.
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5. FEES
5.1 Fee
The annual fee (the "Fee") for the right of use of the Premises will be payable on the
Commencement Date as set forth on Exhibit 1. The Fee shall be payable to Licensor at:
Williams Pipeline Services Company
2800 Post Oak Boulevard
Houston, TX 77056
Attn: Scott Darwin Level 11
or such other location as Licensor shall designate by written notice to Licensee.
5.2 Interest
Any Fee not paid when due herein within fifteen (15) days after receipt of written notice after
it is due may, at Licensor's option, bear interest until paid at the lesser of.
5.2.1 the rate of interest per annum equal to the interest rate then being quoted by
Citibank (or its successor) at its prime rate plus two (2) percentage points; or
5.2.2 the Past Due Interest Rate.
5.3 Late Fee
If Licensee fails to pay any Fee within ten (10) days after it is due, Licensor may require that
Licensee pay to Licensor a late fee o= for each Site. The late fee is in addition to the interest
Licensor may assess under Section 5.2 of this Agreement.
5.4 Other Amounts
Any sums dueto Licensor under this Agreement which are not specifically defined as "Fees"
are deemed additional Fees and are subject to the interest charges and late fees specified in Sections
5.2 and 5.3.
6. IMPROVEMENTS AND CONSTRUCTION
6.1 Approved Communications Facility
Licensee has the right at its sole cost and expense to erect, maintain, replace and operate at
the Premises only those Communications Facilities Licensee will own and use as specified on
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Attachment 1. Prior to commencing any installation or material alteration of a Communications
Facility, Licensee must obtain Licensor's approval of:
6.1.1 Licensee's plans for installation or alteration work;
6.1.2 the precise location of the Communications Facility on the Premises; and
6.1.3 the actual completed installation or alteration.
. Licensee must obtain Licensor's prior written approval if the replacement or modification
of equipment contemplated is not with equipment with identical specifications as set forth in
Attachment 1. Licensee must also obtain Licensor's prior written approval if Licensee wishes to
upgrade the Communications Facility. Licensor's approval must not be unreasonably withheld,
conditioned or delayed
All of Licensee's installation and alteration work must be performed:
6.1.4 at Licensee's sole cost and expense;
6.1.5 in a good and professional manner, consistent with industry standards;
6.1.6 in accordance with applicable building uses and codes, with periodic
professional inspections of the work in progress; and
6.1.7 so as not to adversely affect the structural integrity, maintenance or
marketability of the Premises or any structure on the Premises in any way.
Any structural alterations to a structure on the Premises mustbe designed and inspected by a
licensed structural engineer, experienced in tower design, at Licensee's sole cost and expense. All
installation, maintenance, alteration, or improvement construction must be performed during regular
business hours, unless previously arranged with Licensor. Also, Licensee at its sole cost and expense
must arrange for water, electric power generation, all waste removal, and any other peripheral
necessity required during the installation, improvement, or alteration of Communications Facility.
Licensee agrees to require all of Licensee contractors and subcontractors performing work on any
Premises to comply with all applicable terms and conditions of this Agreement including, without
limitation, the insurance provisions of Section 11, the compliance provisions of Section 10, and the
improvements and construction provisions of this Section 6.
The Licensee shall perform all Licensor -approved professional engineering studies,
intermodulation and structural analyses, FCC frequency coordination, coordination with pipeline and
communications personnel, and any other prudent and professional analyses or studies in order to
make a preliminary determination that it's Communications Facility will not interfere with any other
Communications Facility on the Premises. As is customary in the communications industry, it is
assumed that the most recent Communications Facility installed or repaired on the Premises are
causing new interference if for some reason it becomes difficult to determine which Communications
Facility are actually causing the interference.
All improvements or additions to the Premises that are Fixtures shall become the propertyof
the Licensor and damages to the Premises or facilities on the Premises during construction of
Licensee's Communication Facility must be repaired at the sole cost of the Licensee. Improvements
to the Premises shall include all necessary and proper improvements to areas surrounding the
Premises, but not to the extent of adversely affecting the Premises, including but not limited to roads
and Premises security and compliance with all environmental rules and regulations, at the sole cost
of the Licensee.
6.2 Liens
Licensee must keep the Premises free from any liens arising from any work performed,
materials furnished, or obligations incurred by or at the request of Licensee,
If any lien is filed against the Premises as a result of the acts or omissions of Licensee or
Licensee's employees, agents, or contractors, Licensee must discharge the lien or bond the lien offin
amamier satisfactory to Licensor within twenty (20) days after Licensee receives written notice from
any party that the lien has been filed.
If Licensee fails to discharge or bond any lien within such period, then, in addition to any
other right or remedy of Licensor, including the right to terminate this Agreement, Licensor may, at
its election, discharge the lien by either paying the amount claimed to be due or obtaining the
discharge by deposit with a court or a title company or by bonding.
Licensee must pay on demand any fees paid by Licensor for the discharge or satisfaction of
any lien, and all reasonable attorneys' fees and other legal expenses of Licensor incurred in
defending any such action or in obtaining the discharge of such lien, together with all necessary
disbursements in connection with the defense or discharge.
6.3 Exercising Right of Access
By Licensee exercising rights of access and use of the Premises, Licensee shall be
conclusively deemed to have:
6.3.1 accepted the Premises as suitable for the purposes for which they are granted;
6.3.2 accepted each Site and any structure on the Premises and every part and
appurtenance of the Premises in an "AS IS" condition with all faults and no warranties of any kind;
and
6.3.3 waived any claims against Licensor in respect of defects in the Site or
Premises and its appurtenances, their habitability or suitability for any purposes, except:
6.3.3.1 if otherwise provided in this Agreement,
6.3.3.2 if resulting from the gross negligence or wrongful act or omission of
Licensor, its employees, agents or contractors,
6.3.3.3 if resulting from a known claim by a third party not identified by
Licensor in Licensor's representations, or
6.3.3.4 if known to Licensor and not disclosed to Licensee.
Licensee is deemed to exercise rights of access and use at the time Licensee commences
construction or installation of its Communications Facility.
UTILITIES AND SERVICES
Licensee shall, at its sole cost and expense, provide for connection of and servicing the Site
and any improvements it may use or construct on the Premises with electricity, telephone, or other
utility services as may be required; and Licensee shall be responsible for all costs and charges
resulting from these services, and shall pay the same promptly as such charges accrue to protect,
fully indemnify and hold Licensor harmless from and against any and all liability for such costs or
charges, Licensor and Licensee acknowledge that:
7.1 depending upon the underlying real property rights, the Premises should include such
non-exclusive easement rights as necessary to enable Licensee to connect utilities and services to the
Communications Facility; and
7.2 Licensee must seek the approval of the Licensor for the route(s) and the manner(s) of
installation of such utilities and services. Such approval may not be unreasonably withheld,
conditioned or delayed,
7.3 Any conditions for sharing of utility services are specified in Attachment 1.
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ACCESS
These rights will vary from Premises to Premises and individual Premises conditions shall be
addressed in Attachment 1, if necessary.
Licensor grants to Licensee, its employees, agents and contractors, when required by
Licensee, the access over, across and through the Premises as specified in Attachment 1.
8.1 the connection of telephone, electric, and gas lines, as approved by the appropriate
utility companies and allowed by the underlying real property rights, to those installed at or upon the
Premises;
8.2 the connection of streets and/or roads, if available and necessary, for vehicular traffic
to roads immediately adjacent or near the Premises and space for parking of vehicles upon the
Premises; and
8.3 the installation, construction, modification, maintenance and operation of the
Communications Facility.
Licensor agrees that Licensee shall have the rights of ingress and egress in and to the
Premises as specified in Attachment 1; however, Licensor shall not be responsible for any
inaccessibility of the roads, for any reason, to and from the Premises.
As the primary purpose of the Premises is reserved for communications that support the
efficient and reliable transportation of energy resources, Licensor and its pipeline affiliates, and their
agents and assignees, shall at all times have priority access to the Premises even if such access results
in extreme hardship or interruption of Licensee's installation, maintenance or repair of its
Communications Facility.
Licensee shall at its sole cost and expense arrange for entry to the Premises, whether such
entry only entails making a copy of the security gate key to the installation of a key lock, double key
entry or card key/keyless security entry system to the Premises. Any such installation or
modification will be agreed upon by both Parties and considered a Fixture for purposes of this
Agreement,
Additional fees, if any, imposed upon Licensee for the ingress and egress referred to above
shall be set forth in Attachment 1.
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9. IMPROVEMENT FEES AND TAXES
Licensee shall pay all taxes, including but not limited to sales, use, and gross receipt taxes,
and other fees or charges attributable to the Communications Facility and any increase in ad valorem
taxes (both real and personal) attributable to the Communications Facility.
Except as provided above, each of the Parties shall be responsible for the payment of their
respective taxes regarding any property, real or personal, owned by them, including, but not limited
to, that Site used in connection with the Communications Facility and the Premises. Licensor and
Licensee agree to hold each other harmless for the failure to pay taxes properly attributable to their
own property, except as provided above.
10. COMPLIANCE WITH LAWS
Licensee shall use and occupy the Site in a careful, safe and proper manner and shall not
commit or suffer any waste on or around the Site and Premises. Licensee's exercise of such rights
and/or privileges as may be extended under this Agreement shall at all times be in full compliance
with all present and future applicable laws, ordinances, rules and regulations, including safety
regulations, of the state in which the Site is located, the United States, the FCC and all other
governmental authorities having jurisdiction. Furthermore, Licensee shall comply with rules and
regulations relating to fire prevention, control, and suppression, and all safety rules and regulations
promulgated by Licensor and its affiliates.
In the event the FCC, or any other governmental authority having appropriate jurisdiction,
should fail to issue, or continue, such permits, licenses or consents as are necessary to enable the
Licensee to implement and fulfill the terms and conditions of this Agreement, then the Licensee can
exercise its rights under Section 4.2.
11. INSURANCE
11.1 Required Insurance of Licensee
The Licensee shall, at its sole expense, maintain insurance coverage throughout the entire
term of this Agreement as described in paragraphs 11.1.1 through 11.1.4 with insurance companies
acceptable to Licensor. The limits set forth are minimum limits and shall not be construed to limit
Licensee's liability. All costs and deductible amounts shall be for the sole account of the Licensee.
All policies required shall name the Licensor as an additional insured and waive subrogation rights in
favor of Licensor, or any ofticensor's affiliates, and shall be designated as primary coverage to any
similar coverage carried by the Licensor. The required coverage shall be:
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11.1.1 Property insurance, including coverage for fire, extended coverage, vandalism
and malicious mischief, upon each Communications Facility on the Premises in an amount not less
than full replacement cost of the Communications Facility;
11.1.2 Workers' Compensation Insurance complying with the laws of the State or
States in which the services are to be performed, whether or not the Licensee is required by such
laws to maintain such insurance, and Employer's Liability limits of$100,000 disease each employee,
and $500,000 disease policy lirnit. If work is being performed in North Dakota, Ohio, West
Virginia, Washington, or Wyoming, Licensee will participate in the appropriate state fiord and
provide stop gap endorsement;
11.1.3 Commercial General Liability Insurance on an occurrence form, insuring
operations hazard, independent contractor hazard, contractual liability, and products completed
operations liability, with a combined single limit of - each occurrence, -
aggregate, for bodily injury, personal injury and property damage;
11.1.4 Automobile Liability Insurance for all owned, non -owned and hired vehicles
with a combined single limit of - for each occurrence for bodily injury and property
damage;
Irrespective of the requirements as to insurance to be carried, the insolvency, bankruptcy, or
failure of any such insurance company carrying insurance for the Licensee, or failure of any such
insurance company to pay claims occurring, shall not be held to waive any of the provisions hereof.
Non -renewal or cancellation of policies providing coverage hereunder, as it affects the
interest of Licensor, shall be effective only after written notice is received by Licensor from the
insurance company thirty (30) days in advance of any such non -renewal or cancellation. Prior to
commencing work hereunder, Licensee shall deliver to Licensor, certificates ofinsurance evidencing
the existence of insurance coverages provided for above.
11.2 Policies of Insurance
All required insurance policies must be taken out with reputable national insurers that are
licensed to do business in the jurisdiction where the Sites are located. Licensee agrees that
certificates of insurance will be delivered to the Licensor as soon as practicable after the placing of
the required insurance, but not later than the Commencement Date. All policies must contain an
undertaking by the insurers to notify Licensor in writing not less than thirty (30) days before any
material change, reduction in coverage, cancellation, or termination of the insurance.
Licensor will each year review the limits for the insurance policies required by Licensee under this
Agreement. Policy limits will be adjusted to proper and reasonable limits as circumstances warrant
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and is customary in the industry, but policy limits will not be reduced below those stated above and
increases will only be effective upon sixty (60) days notice by Licensor.
11.3 No Limitation on Liability
The provision of insurance required in this Agreement and the respective limits of coverage
designated in any policy of insurance shall not be construed to limit or otherwise affect the liability
of Licensee to Licensor.
11.4 Compliance with Insurance Policies
Licensee will not do or permit to be done in or about the Premises, nor bring or keep or
permit to be brought to the Premises anything that;
11.4.1 is prohibited by any insurance policy carried by Licensor covering the Site,
any improvements therewith, or the Premises; or
11.4.2 will increase the existing premiums for any such policy beyond that
contemplated for the addition of the Communications Facility; or
11.4.3 is considered hazardous.
Licensor acknowledges and agrees that the installation of the Communications Facilityupon
the Site in accordance with the terms and conditions of this Agreement will be considered within the
underwriting requirements of any of Licensor's insurers and that such premiums contemplate the
addition of the Communications Facility.
12. INDEMNIFICATION
Licensor and its affiliates shall not be liable to Licensee, or to its employees, agents, or
invitees, or to any other person for any injury to person or damage to property arising from, or in
connection with Licensee's use and occupation of the Site, Communications Facility and any other
improvements located on the Premises. Licensee agrees to defend (at Licensoe's option), indemnify
and hold Licensor and its affiliates harmless from any and all liabilities, obligations, damages, fines,
penalties, losses, claims, demands, suits, proceedings, judgments, and expenses (including but not
limited to reasonable attorneys fees) arising out of or resulting in any way from Licensee's use and/or
occupancy of the Site, the installation or maintenance of improvements and facilities on the
Premises, and any act or omission of Licensee.
Licensee shall also be responsible for compliance with all Hazardous Waste Laws (including
for any required clean-up) pertaining to its operation on or around the Premises, and Licensee will
defend, indemnify and hold harmless Licensor from and against any and all direct liabilities,
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damages, losses, costs, assessments, penalties, fines, expenses and fees, including reasonable
attorneys fees, to the extent of Licensee's obligations to comply with, or breach of, this provision.
This indemnity particularly includes reasonable costs and fees incurred by Licensor in connection
with any investigation of property conditions or clean-up, removal or restoration of the property
related to Hazardous Wastes of Licensee required by any govemrnental authority. Licensee shall
have no liability or responsibility for hazardous substances pre-existing its occupancy of the Site.
13. ASSIGNMENT
13.1 By Licensee
Provided Licensee gives Licensor written notice, Licensee shall have the right to assign or
transfer its rights under this Agreement to anyperson or business entitywhich is licensed by the FCC
to operate a wireless communications business and is (i) a parent, subsidiary or affiliate of Licensee;
(ii) controls or is controlled by or under common control with Licensee; (iii) is merged or
consolidated with Licensee; or (iv) purchases more than frftypercent (50%) ownership interest in or
assets of Licensee. In all other instances, Licensee shall not assign its rights under this Agreement to
any party without obtaining the prior written consent of Licensor, which consent shall not be
unreasonably withheld, delayed or conditioned. Upon any permitted assigmnent, so long as
Licensee's assignee has assumed all of Licensee's obligations under this Agreement, Licensee shall
be relieved of all future obligations under this Agreement,
Licensee shall not assign its rights under this Agreement to any otherparty without obtaining
the prior written consent of Licensor.
13.2 By Licensor
Licensor may assign its rights and obligations under this Agreement or anypart of it, without
the consent of Licensee, and such assignment shall be binding upon Licensee.
14. REPAIRS AND EMERGENCY SELF HELP
14.1 Licensee's Obligation
Licensee shall, at all times during the term of this Agreement, at its sole cost and expense,
keep and maintain its Communications Facility located upon the Premises in a neat, structurally safe
and sound condition and in good repair. Licensee further agrees to make modifications or repairs to
all or any part of its Communications Facility if required, in Licensoe's sole judgment, to ensure the
structural integrity of the Communications Facility or its safe operation.
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If Licensee does not make such repairs within thirty (30) days after receipt of notice from
Licensor requesting such repairs, then Licensor may, at its option, make the repairs. Licensee shall
pay Licensor on demand Licensoe's actual costs in making the repairs, plus Licensee's overhead,
which is agreed for purposes of this provision to be 20%.
If Licensee commences to make repairs within thirty (30) days after any written notice from
Licensor requiring such repairs and continuously and diligently pursues and completes such repair,
then the thirty (30) clay cure period will extend for an additional thirty (30) days to permit Licensee
to complete such repairs.
Anything in this Agreement to the contrary notwithstanding, if emergency repairs are needed
to protect persons, or property, or to allow Licensor, its affiliates, or other third parties, the use of the
Premises, Licensee must immediately correct the safety or use problem, even if a full repair cannot
be made at that time or, at Licensoe's option, it may make such repairs at Licensee's expense.
14.2 Licensoe's Obligation
Licensor shall, at all times during the term of this Agreement and at Licensor's sole cost and
expense, keep and maintain the Premises and any improvements, not part of Licensee's
Communications Facility or installed or constructed by Licensee, in a structurally sound and safe
condition.
14.3 Licensoe's Right to Inspect and Self Help
Licensor shall at all times be permitted and allowed to enter the Premises and Licensee's
Communication Facility to inspect and/or determine compliance with the terms of this Agreement
and for any other purpose consistent with its use or its affiliates' use. Licensor has the right to use
any and all self help remedies to prevent Licensee's interfering with (a) communications used in
Licensoe's or its affiliates' business, and (b) communications required for Licensoe's employee
safety, or to preserve the public health and/or safety.
15. PHYSICAL DAMAGE AND CONDEMNATION
15.1 Physical Damage
If there is physical damage caused by a force majeure event or condition (see Section 21.8) to
any structure upon which a Communications Facility is located, which damage materially affects the
operation of Licensee's facility, Licensor may within sixty (60) days elect to repair or restore the
structure, but is not obligated to do so. If Licensor elects not to repair or restore the structure,
Licensee, with the prior written approval of Licensor, may erect on the Premises or an unused portion
of the Site, and solely at Licensee's expense, another Communications Facility, including any
16
supporting structure. If Licensor elects to repair or restore the structure, it shall promptly notify
Licensee and Licensee, with Licensor's prior approval, may immediately erect on the Premises, or an
unused portion of the Site, a temporary Communications Facility, including any supporting structure,
while Licensor makes repairs to the Premises. Upon completion of such repair or restoration,
Licensee may reinstall Licensco's Communications Facility and shall remove its temporary
Communications Facility, including any supporting structure.
In the event Licensor elects not to repair or restore the structure on which the
Communications Facility is located, either party may elect to terminate this Agreement upon thirty
(30) days written notice.
In no event shall Licensor be liable to Licensee for any damages, consequential or otherwise,
suffered as a result of any casualty.
15.2 Condemnation
If the whole or a substantial part of the Premises shall be taken or condemned by any
govemmiental or quasi-govenunental authority (the "Condemnor") for any public or quasi -public use
orpurpose, including sale under threat ofsuch a taking (the "Condemnation"), then Attachment I for
the condemned Premises shall terminate and all rentals shall become abated as ofthe date when title
vests in such Condemnor. Licensee shall have no claim against Licensor and hereby agrees to make
no claim against the Condemnor for any portion of the amount that may be awarded as damage as a
result of such Condemnation or for the value of any unexpired term of Attachment 1 or for loss of
profits ormoving expense or for any other claim or cause of actionby reason of such Condemnation.
All lights ofLicensee to damages with respect to such Condemnation, if any, arehereby assigned by
the Licensee to Licensor. Licensee shall be entitled to remove all of its equipment, property and
improvements from the Premises in tine event of a condemnation.
16. SURRENDER OF PREMISES; HOLDING OVER
Upon the expiration of this Agreement for any cause whatsoever, Licensee must peacefully
vacate the Premises in as good order and condition as at the Commencement Date, except for
reasonable use, wear and tear excepted and shall remove all non -Fixtures associated with its
Communications Facility. Licensee will repair or pay for the repair resulting from any damage
caused during the removal of the Communications Facility.
If Licensee continues to hold over on the Premises after the termination, whether the
termination occurs by lapse of time or otherwise, such holding over shall, unless otherwise agreed to
by Licensor in writing, constitute and be construed as a month -to -month tenancy at a monthly fee
equal t� of the monthly fee and subject to all of the other terms set forth in this Agreement.
17
17. COVENANT OF QUIET ENJOYMENT
Licensor covenants that during the entire term of this Agreement and for so long as Licensee
shall make timely payment of fees due under this Agreement, and shall perform all covenants on its
part to perform, Licensee shall and may peaceably and quietly have, hold and enjoy the Site.
18. COVENANTS AND WARRANTIES
18.1 Licensor
Licensor warrants with respect to the SLA that Licensor has the necessary rights, title, or
interests in the property subject to this Agreement to make the representations and conveyances
contained in this Agreement.
18.2 Licensee
Licensee warrants that it is qualified to do business in any state in which the Premises and
Sites are located.
18.3 Mutual
Each party represents and warrants to the other party that:
18.3.1 it has the right, power and authority to make this Agreement and to enter into
Attachment 1 s;
18.3.2 the making of this Agreement and its performance will not violate any laws,
ordinance, restrictive covenants, or other agreements under which such party is bound;
18.3.3 that such party is a duly organized and existing corporation or limited
partnership; or limited liability company; and
18.3.4 all persons signing on behalf of such party were authorized to do so by
appropriate corporate or partnership action.
19. SUBORDINATION
19.1 Agreement
Licensee agrees that this Agreement is subject and subordinate at all times to the lien of all
mortgages and deeds of trust securing any amount or amounts whatsoever which may now exist orin
the future be placed on or against the Premises or against Licensor's interest or estate in the
m
Premises, and any underlying ground lease or Site lease all without the necessity of having further
instruments executed by Licensee to effect such subordination, but with respect to any such liens or
leases which arise following execution of this Agreement, only upon the condition that any such
mortgagee, beneficiary, trustee or ground Licensor expressly agrees not to disturb the rights of
Licensee under this Agreement and Attachment 1.
Each Communications Facility and related property located upon any Premises by Licensee
pursuant to the teens of this Agreement and Attachment is will at all Ernes be and remain the
property of Licensee and will not be subject to any lien or encumbrance created or suffered by
Licensor. Licensor waives all Licenser's or landlord's lien on any property of Licensee (whether
created by statute or otherwise). Notwithstanding the foregoing, in the event of termination or
expiration of Attachment 1, if all of the Communications Facility located on the Premises is not
removed within thirty (30) days after termination or expiration, such equipment remaining shall be
deemed abandoned, and, at the election of Licensor, its waiver of lien shall thereafter be void and of
no further force and effect.
19.2 Attachment 1
Attachment 1 is subject to any restrictions or other terms and conditions contained in the
underlying real property right. Licensee agrees not to commit any act or omission which would
constitute a default under any grant or conveyance of the underlying real property right.
Licensor is not required to obtain any consent from the landlord under such underlying real
property rights in order for Licensee to construct, operate, maintain or access the Communications
Facility, unless expressly set forth in Attachment 1.
Upon the expiration or termination of any underlying real property right, underlying lease or
license with respect to a particular Site, Attachment 1 relating to such Site automatically terminates.
Licensee acknowledges that many of Licensor's underlying leases or licenses may grant to the
property owner the right to terminate such underlying leases or licenses on the Site, and that in the
event of such termination, Attachment 1 with respect to such Site shall terminate concurrently.
Licensor agrees that Licensor will not breach the terms or conditions of any underlying real
property right in a manner that materially and adversely affects Licensee's use of the Site.
20. GENERAL PROVISIONS
20.1 Entire Agreement
This Agreement and Attachment 1 constitute the entire agreement and understanding between
the Parties, and supersede all offers, negotiations and other agreements concerning the subject matter
19
contained in this Agreement. There are no representations or understandings of any kind not set
forth iii this Agreement or Attaclnnnent 1. Any amendments to this Agreement mustbe in writing and
executed by both Parties.
20.2 Severability
If any provision of this Agreement is invalid or unenforceable with respect to anyparty or the
application of such provision to persons other than those as is held invalid or unenforceable, the
remainder of this Agreement and Attachment 1 is not to be affected and each provision of this
Agreement is valid and enforceable to the fullest extent permitted by law.
20.3 Binding Effect
This Agreement will be binding on and inure to the benefit of the respective Parties'
successors and permitted assignees.
20.4 Captions
The captions of this Agreement are inserted for convenience only and are not to be construed
as part of this Agreement.
20.5 No Waiver
No provision of this Agreement will be deemed to have been waived by either party unless
the waiver is in writing and signed by the party against whom enforcement is attempted. No custom
or practice which may develop between the Parties in the administration of the terms of this
Agreement is to be construed to waive or lessen any party's right to insist upon strict performance of
the terms of this Agreement. The rights granted in this Agreement is cumulative of every other right
or remedy that the enforcing party may otherwise have at law or in equity or by statute and the
exercise of one or more rights or remedies will not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
The Parties acknowledge and agree that they have been represented by counsel and that each
of the Parties has participated in drafting of this Agreement. Accordingly, it is the intention and
agreement of the Parties that the language, terms and conditions of this Agreement are not to be
construed in any way against or in favor of any party hereto by reason of the responsibilities in
connection with the preparation of this Agreement.
20
20.6 Notice
Any notice or demand required to be given in this Agreement shall be made by certified or
registered mail, return receipt requested or reliable overnight courier to the address of other Patties
set forth below:
Licensor:
Williams Pipeline Services Company
Attention:
Susan E. Walker
Address:
2800 Post Oak Blvd.
Houston, TX 77056
Telephone:
(713) 215-3082
Facsimile:
(713) 215-3075
Licensee:
Virginia PCS Alliance, L.C.
Attention:
Senior Lease Administrator
Address:
1150 Shenandoah Village Drive
Waynesboro, VA 22980
Telephone:
(540) 946-1852
Facsimile:
(540) 932-2210
With a copy to: NTELOS
Attn: Mary McDermott -Senior VP/Legal &
Regulatory Affairs
401 Spring Lane, Suite 300
PO Box 1990
Waynesboro, VA 22980
Telephone: (540) 946-8677
Facsimile: (540) 946-3595
Any such notice is deemed received one (1) business clay following deposit with a reliable
overnight courier or three (3) business clays following deposit in the United States mails addressed as
required above. Licensor or Licensee may from time to time designate any other address for this
purpose by written notice to the other party,
20.7 Governing Law
This Agreement is governed by the laws of the state in which the Site is located.
21
20.8 Force Majeure
If a party is delayed or hindered in, or prevented from the performance required under this
Agreement (except for payment of monetary obligations) by reason of earthquakes, landslides,
strikes, lockouts, labor troubles, failure ofpower, riots, insurrection, war, acts of God orotherreason
of like nature not the fault of the party delayed in performing work or doing acts, such party is
excused from such performance for the period of delay. The period for the pelTonnance of any such
act shall then be extended for the period of such delay.
20.9 Time is of the Essence
Time is of the essence with respect this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
above written.
LICENSEE: Virginia PCS Alliance, L.C.
By: (,e -j - 14( // 3d
Name: R.L. McAvoy
Its: Senior Vice President
LICENSOR: Williams Pipeline Services Company
By: - o,
Name: Richard D. Ro ekohr
Its: Vice President
22
Attachment 1
The Parties agree that the following defined Site will be licensed by Licensor to Licenseepursuant to
the terms and conditions of the Site License Agreement which terms and conditions shall include all
specific restrictions or limitations set forth below.
A. Site Name - Number: TGPL #177
Customer # CV646 Commonwealth
B. Site Address: 345 Greenbrier Drive, Charlottesville, VA 22901
C. Site Legal Description (Attached as Exhibit 1):
This shall include the following (Check the appropriate boxes):
® Real Property comprised of approximately three hundred (300) square feet of land
(approximately 30 ft by 10 ft)
❑ Building interior space comprised of approximately usable square feet
❑ Building exterior space for attachment of antennas
❑ Building exterior space for placement of equipment
0 Tower antemra space between 90' — 80' (85' rad center)
® Space required fur cable runs to connect equipment and antemias
® Non-exclusive easements required to rvn utility lines, transmission and
telecommunication lines, and cables
® Non-exclusive easement across Licensor's property for access
❑ Other
D. Site Latitude - Longitude: 38-04-18 78-29-17
E. Commencement Date: The earlier of June 1, 2012 or zoning and building permit
approval.
F. Fees: The Fee shall be paid amorally in advance beginning on the Commencement
Date and on each anniversary thereof. The Fee shall be
The Fee for each and every year shall be
the annual Fee in effect for the prior year, increased by the higher of
annual escalation and each year thereafter)
G. X The Site is owned by Licensor or affiliate.
The Site is licensed or leased to Licensor.
H. Licensor contact for emergencies: Susan Walker (713) 215-3082 or
23
(713) 301-4168. If time sensitive emergency, (800) 440-8475
I. Licensee contact for emergencies: NTELOS NOC (540) 941-4800
Description of Communications Facility (see definition of a ("Cominunications
Facility") in Site License Agreement) (Attached as Exhibit 2) and Approved Site Plan
Drawings (Attached as Exhibit 3):
K. Special provisions or restrictions (including the sharing of utility services):
1) Licensee shall be soley responsible for all costs and expenses relating to the
connection, disconnection, consumption and use of any utilities in connection with
Licensee's use of the Site.
2) Licensee shall construct additional parking spaces on the Premises as shown
on Exhibit 4.
3) Licensor has approved the structural analysis dated Febivary 18, 2011 by
Malouf Engineering Intl., Inc. and the site plan/construction drawings dated
September 27, 2011 by Mead & Hunt.
L. Date of survey or inspection of the Site by Licensee:
M. Special conditions regarding access to Site:
Access to the Premises and Site shall be subject to Licensoe's security requirements, rules
and regulations in effect. Licensee shall have access to the Site during normal business hours
7:00a.m.-3:30p.m., Monday — Friday through the gated entrance off Commonwealth
Avenue. Access to Licensee's Space shall be accessible after normal business hours on
exterior gate as shown on approved site plan drawings attached. If Licensee requires access
to the Tower Space after normal business hours, Licensee shall provide 48 hours notice to
Licensor. In the event of an emergency, Licensee may contact Licensor for access at Gas
Control in Houston—1-800-440-8475.
2. The initial term shall be five (5) years commencing on the Commencement Date. This SLA
may be renewed automatically for four (4) additional terms of five (5) years each, unless otherwise
terminated as provided in this Agreement.
24
10:46211 ust
Site Legal Descri tp ion
All those two certain tracts or parcels of land, lying and being in Albemarle County, Virginia,
and more particularly described as follows:
Tract 1: . All that certain lot or parcel of land, situated In the Westfield Subdivision of
Albemarle County, Virginia, containing 0.526 acre, more or less, shown and described as Lot 7, Block
A, -Section 1, Westfield Subdivislon, on a plat of Huffman, Foster & Associates, dated February 18,
1971, recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book
486 page 37.
AND BEING the same property conveyed unto Transcontinental Gas Pipe Line Corporation, a
Delaware corporation, by deed from Harry Lee Marshall and Sally F. Marshall, dated January 18, 1975
and recorded in the Clerk's Office of the Circuit Court of Albemarle County in Deed Book 523 page 51.
Tract 2: All that certain lot lying and being in Albemarle. County, Virginia, fronting 25 feet
on the south side of Greenbrier Drive and extending back 215 feet between parallel lines, containing
0.1234 of a acre, lying Immediately southeast of Lot 7 Block A, 0.526 of an acre, more or less, as
shown on a plat of B. Aubrey Huffman and Associates, dated December 6,1972 and recorded In the
aforesaid Clerk's Office in Deed book 523 page 191.
AND BEING the same property conveyed unto Transcontinental Gas Pipe Line Corporation, a
Delaware corporation, by deed from Charles Wm. Hurt, Widow, dated January 31, 1973 and recorded
In the aforesaid Clerk's Office In Deed Book 523 page 187.
These two tracts are combined and consolidated and made Into one tract of land.
25
EXHIBIT 2
Licensee Equipment
ANTENNAS:
Manufacturer and Type -Number: Andrew HBX-6517DS-VTM
Number of Antennas: Up to three (3)
Weight and Dimension of Antenna(s) (L x W x D): 74.9"(L) x 6.5"(W) x
3.3"(D)
Antennas Rad Center: 85 ft.
Direction of Radiation 60/180/300
Number of Transmission Lines: Up to six (6)
Transmission Line Mfr. and Type No.:, Andrew AVA7-50
Diameter and Length of Transmission Line: 15/8"
EQUIPMENT:
Equipment Cabinets/Ground Space - 300 Sq. Ft, of ground space with a raised
platform for up to four (4) equipment cabinets
P11
EXHIBIT' 3
Approved Site Plan Drawings
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EXHIBIT 4
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