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HomeMy WebLinkAbout20140529 Ver 1_More Info Received_20140617Maher, Niki From: BRL Engineering [brlengineering @earthlink net] Sent Tuesday, June 17, 2014 7 24 AM To: Maher, Niki Cc: brian @dcadamspe com, 'monty McLamb' Subject: FW Miracle League Baseball Field Attachments: ML Lease - Ref Paragraph 4 for NCDWR pdf Niki, Attached is the signed lease that you and I discussed for the Miracle League project I had also sent this to Karen Higgins last Thursday Let me know if this will suffice You may call me on my mobile if you need to reach me at 919 631 -6934 From: BRL Engineering [ mailto .brlengineeringCabearthlink.net] Sent: Thursday, June 12, 2014 11.29 PM To: 'karen.higgins @ncdenr.gov' Cc: 'chern smith @ncdenr gov'; 'monty McLamb' Subject: Miracle League Baseball Field Hi Karen, I dust recently received your letter stating that our Miracle League project was placed on hold due to additional information requested Specifically, NCDWR has requested that the applicant (Miracle League) provide documentation from the Owner (Town of Smithfield) authorizing the applicant to construct the project and obtain the necessary approvals I will be glad to provide this document in written correspondence if necessary, however, because I dust received NCDWR's correspondence and some time has passed, I wanted to send you this email to let you know that Miracle League has this authorization in the form of a signed lease (attached) See specifically Page 2, Paragraph 4 (encircled by cloud for your reference) Please look over the attachment and let me know if this document will suffice and allow us to proceed with the buffer approval Please call me anytime on my mobile at 919 631 -6934 Thank you for your assistance Brian R Leonard, PE, PLS BRL ENGINEERING 106 North Main Street (Office) 704 -B East Stanley Street (Mall) Four Oaks, NC 27524 919 963 -2608 brlenpineering cDearthlink net STATE OF NORTH CAROLINA JOHNSTON COUNTY GROUND LEASE 11@1 ;0q U !,- Do JUt� 1 7 2014 1 This, GROUND LEASE AGREEMENT is entered into by and between THE TOWN OF SMITHFIELD, a municipal corporation organized and existing under the laws of the State of North Carolina, (herein called the "Town "), and THE MIRACLE LEAGUE OF JOHNSTON COUNTY, INC , a limited liability company organized and existing under the laws of the State of North Carolina (herein called the "Miracle League ") RECITALS WHEREAS, the mission of The Miracle League is to provide recreational support and opportunities for Individuals with physical and mental disabilities (hereinafter referred to as "special needs ", and WHEREAS, the Miracle League constructs special recreational facilities known as "Miracle League Fields" on which individuals with special needs compete, and WHEREAS, the Miracle League Fields are custom - designed facilities Incorporating cushioned synthetic turf that accommodate wheelchairs and other walking devices and help prevent injuries, and WHEREAS, the Miracle League allows those individuals with specials needs to participate in an organized recreational program just like their brothers, sisters and friends, and WHEREAS, the Miracle League agreed to provide the equipment and the funds with which to construct the Miracle League Field and facility, and WHEREAS, the Mayor and Town Council of the Town of Smithfield, North Carolina, recognizes that the endeavors of the Miracle League will enrich the lives of the Individuals with special needs as well as their families and their communities and will promote the public health, safety and welfare of Its citizens, and WHEREAS, the organized recreational program in which individuals with special needs will • participate shall be known and referred to as the "Smithfield Miracle League" NOW, THEREFORE, for and in consideration of the mutual covenants, representations and agreements contained herein, the Town and the Miracle League hereby covenant and agree as follows: I LEASED PREMISES For and in consideration of the covenants contained in this Lease, the Town does hereby lease unto the Miracle League for the purposes stated herein a parcel of real property located at the Smithfield Community Park, Smithfield, North Carolina, more particularly described as follows (hereinafter referred to as the "Premises ") An area at the Smithfield Park consisting of not less than 15,102 sq. feet suitable for the construction of a Miracle League Field; said area including S \DATA\WNWORD\Local GovemmenATOWN OF SMITHFIELD\Fsrks & Recreanon%incle Lwscs \Our LeaseVA= v3 we tracked changes doe the playing field and the dugouts and foul areas designated by the Town and agreed to by the Miracle League; the same being depicted on Exhibit "A" which'is'attached hereto and incorporated herein by reference. It is acknowledged and agreed that the Town and tl'iose authorized by it may use the leased premises when same are not being used by the Smithfield Miracle League The Town and those authorized by it shall not use the leased premises in a manner that would result in damage to or destruction of the improvements located on the leased premises It is further acknowledged and agreed that the support facilities, if any, located on the leased premises such as the concession stand, restrooms, etc may be used by the Town in conjunction with its operation of the Smithfield Town Park wherein the leased premises are located 2 USE OF FACILITIES The Miracle League shall use the facilities to provide recreational support and opportunities for individuals with special needs through an organized recreational program known and referred to as the "Smithfield Miracle League ", provided, however, that the Town reserves and shall have the right to advertise and promote the Smithfield Miracle League 3. RENT The Miracle League shall pay to the Town for the use of the Premises the sum of One Dollar ($1 00) per year and provide such additional consideration as set forth herein 4 ADDITIONAL CONSIDERATION AND CONSTRUCTION The Miracle League agrees that it will (1) pay for and construct upon the Premises a custom - designed baseball sports facility for use by individuals with special needs, and for no other purpose without the written consent of the Town indorsed on this Lease, (2) operate on the Premises a recreational program that will allow those individuals with special needs to participate in an organized recreational program, (3) pay for and provide all equipment and other improvements necessary for the operation of the above described program and to comply with the terms and intent of this Lease, (4) pay for all costs associated with relocating the walking track; (5) pay for all park modifications required for the construction of the special Miracle League Field, and (6) provide all services and pay all expenses incidental to the operation of the program; provided, however, all new construction, modifications, and alterations to the leased premises and any facilities located thereon during the lease term must be approved by the Town The Miracle League will construct a 'Miracle League' field or cause the same to be constructed on the Premises in accordance with plans and specifications approved by the Town Prior to the commencement of construction of any of the Miracle League field, the Miracle League will provide the Town with initial plans and specifications related to such construction Within fourteen (14) days after receipt of such plans and specifications by the Town, the Town will review such plans and specifications and notify the Miracle League if such plans and specifications are approved, which approval shall not be unreasonably withheld Further, any material changes to the plans and specifications previously approved in accordance with this section shall be subject to the same approval requirements set forth herein Upon completion of the construction of the Miracle League field, the Miracle League field will meet and satisfy the project specifications and plans and specifications approved in accordance with this Section in all material respects The Parties agree that the Town shall have no financial responsibility with respect to the construction, operation, or maintenance of the Miracle League field unless otherwise noted in this Agreement -2- 5 LEASE TERM The Miracle League's right to use the Premises as provided for herein shall be for the initial period of ten (10) years, provided, however, that either party shall have the right to terminate this Agreement at any time with thirty (30) days' notice to the other party 6 SURRENDER OF THE PREMISES. The Miracle League shall quit and surrender the Premises and all equipment and improvements located on and in the Premises upon demand of the Town as provided above in the same condition as at the date of the commencement of the use by the program of the Leased Premises after construction of the'Miracle League Field', ordinary use and wear excepted 7 FURNISHING OF SERVICES The Town shall be responsible for furnishing no services except the following: The Town will perform routine services in picking up trash and maintaining the area around the field in a reasonably clean condition S RULES AND REGULATIONS The Miracle League shall abide by and conform to all rules and regulations adopted or prescribed by the Town for the operation and management of the Premises including but not limited to the rules and regulations of the Town's Parks and Recreation Advisory Committee The Miracle League shall coordinate the scheduling of all events through the Town's Parks and Recreation Director 9. INDEMNIFICATION. The Miracle League covenants and agrees to indemnify and hold the Town harmless from and against any and all claims or liabilities for compensation or damages, of any kind or description, and any other public liability or property damage liability, all costs incurred in connection with loss of life, bodily or personal injury, or property damage arising out of any occurrence on the Premises, or the occupancy by the Miracle League of the Premises or any part thereof, or occasioned wholly or in part by any action or omission of the Miracle League, its agents, invitees or guests, and shall pay all costs and expenses including reasonable attorneys fees to the Town incurred in connection therewith The Miracle League further agrees that the Town (including its managing and leasing agent and its other agents, servants, and employees) shall not be liable or responsible in any manner to the Miracle League or to the Miracle League's invitees or guests, personal representatives, successors, or assigns or to any person claiming through the Miracle League for any injury to person (including death), loss or damage to property (including decrease in value of property), occasioned by the acts or omission of the Town, its agents, employees or contractors, or by any other cause whatsoever except the Town's gross negligence or willful wrong which may arise, in whole or in part, from any condition, accident or occurrence relating to the Premises including, but not limited to, any defective or other condition in buildings, equipment, improvements, or pertinence, storage areas, facilities in common areas, and including latent and patent conditions, whether known or unknown, and whether now existing or later developing conditions relating to plumbing,, and other equipment, appliances, facilities with machinery, whether in properly working condition or not, any condition resulting form acts of God and the elements, including wind, ram, hail, snow, storms, floods, and earthquakes, any condition relating to repair, alteration or replacement work performed by or on behalf of the Town, or relating to circumstances delaying or preventing such work from being performed, any condition relating to theft, burglary, vandalism, acts of third parties, and any actual matters relating to security; and any conditions or circumstances relating to anyone on behalf of the Town -3- 10 ALTERATIONS AND BIPROVEMENTS The Miracle League shall not make any alterations or improvements to the Premises during the Term of this Agreement without the Town's prior written consent All permitted alterations and improvements shall be made in fast class manner at the Miracle League's expense unless otherwise, agreed by the parties; shall comply with all applicable Laws, shall be performed in a good and workmanlike manner The Miracle League shall not permit any mechanic's or materialman's liens to attach to the Premises or this leasehold interest and the Miracle League shall indemnify the Town therefrom. In the event a mechanic's lien is filed against the Premises, the Miracle League shall discharge or bond off same within ten (10) days from the filing thereof If the Miracle League fails to discharge said lien, the Town may bond off or pay same without inquiring into the validity or merits of such lien and all sums so advanced shall be paid on demand by the Miracle League as additional rent If any alterations, additions or installations are made that require the Town's consent without such consent or contrary to the time and manner designated by the Town, the Town may correct or remove them and the Miracle League shall be liable for any and all expenses incurred by the Town in the performance of this work. 11 COMPLIANCE WITH LAW The Miracle League shall comply with all applicable laws and rules and regulations, including but not limited to, the Park and Recreation Advisory Committee's Rules, and will not do or allow to be done anything on the Premises during the term of this Agreement in violation of any such laws, ordinances, rules or regulations 12 INSURANCE The Miracle League shall acquire, maintain, keep in full force and effect during the lease term, and furnish the Town with a Certificate of Insurance evidencing that the Miracle League has bodily injury liability and property damage insurance with limits of liability not less than One Million Dollars ($1,000,000), or as otherwise required by the Town. In addition, the Miracle League shall acquire, maintain, keep in full force and effect during the lease term,, and furnish the Town will a Certificate of Insurance for the replacement value of the playing surface and the facilities constructed on the leased premises naming the Town as the loss -payee 13. DAMAGE TO PREMISES A If the Premises, or any part of the Premises, or any equipment located on the Premises during the term of this Agreement shall be damaged by the act, default, or negligence of Miracle League, or of its agents, employees, patrons, guests, or any person admitted to the Premises by the Miracle League, the Miracle League will pay to the Town upon demand such sum as shall be necessary to restore to its present condition, the Premises or equipment contained in or on the Premises. B The Miracle League assumes full responsibility for the character, acts, and conduct of all persons admitted to the Premises by the consent of the Miracle League, or by or with consent of any person acting for or on behalf of the Miracle League Miracle League agrees to have on hand at all times, at its own expense, such police and fire force as determined necessary by the Town to maintain order and to protect persons and property C. All equipment entrusted to the care of Miracle League or on the Premises during the term of this Agreement that shall become lost, stolen, or disappear shall be the sole responsibility of the Miracle League It shall be the responsibility of the Miracle League to pay frill replacement costs for such lost, stolen or missing property -4- 14 ASSIGNMENT The Miracle League shall not assign this agreement nor allow any use of the premises other than as specified in this agreement. 15 OTHER USES. The Miracle League understands and agrees that during the tern of this Agreement, it may not use or cause to be used any part of the Premises for any use other than that stated in this Agreement. 16 ENTIRE AGREEMENT This agreement shall constitute the entire agreement between the parties Any prior understanding or representation of any kind preceding the date of this agreement shall not be binding upon either party except to the extent incorporated in this agreement. 17 MODIFICATION Any modification of this agreement or additional obligation assumed by either party in connection with this agreement shall be binding only if evidenced in a writing signed by each party or an authorized representative of each party V 18. CONSENT Whenever provision is made under this Agreement for the consent of the Town or the Miracle League, and no standard therefor is provided, then such ,consent shall not be unreasonably withheld, conditioned or delayed The parties agree to conduct themselves in good faith and fair dealing in carrying out the terms and conditions of this Agreement 19 CONDEMNATION /CASUALTY If, during the Tenn of this Agreement, or any extensions thereof, (a) there shall be taken or condemned ( "Taking ") for any public or quasi- public use under any governmental law, ordinance or regulation or by right of eminent domain or by private purchase in lieu thereof, the entire Premises or any part thereof, or (b) the Premises shall be damaged or destroyed, then the Miracle League shall have the right to terminate this Agreement upon twenty (20) days written notice to the Town 20 TOWN AND MIRACLE LEAGUE DEFAULT/REMEDIES A The occurrence of any of the following shall constitute a default by the Miracle League pursuant to this Lease: (i) a failure by the Miracle League to pay rent within thirty (30) days after the Miracle League's receipt of written notice from the Town specifying such failure; (ii) a failure by the Miracle League to perform obligations pursuant to this Agreement within thirty (30) days of the Miracle League's receipt of written notice from the Town specifying such failure or, if it reasonably would require more than thirty (30) days to cure such failure, within a time reasonably necessary to cure such failure after the Miracle League's receipt of such written notice from the Town (each an "Event of Default ") B The Town may terminate the Agreement and reenter the Premises by giving thirty (30) days written notice to the Miracle League upon the happening of any Event of Default unless the Miracle League shall have cured such Event of Default within thirty (30) day period or within a time reasonably necessary to cure such failure after the Miracle League is in receipt of said written notice from the Town, in which event this Agreement may not be terminated on account of such Event of Default. C Should the Town fail to perform any of its obligations or violate any of the covenants set forth in this Agreement, if such failure continues for thirty (30) days after written notice thereof from the Miracle League to the Town, the Town shall be considered in default of this Agreement In the event of default by the Town, the Miracle League shall have the option to cure said default and be reimbursed by the Town for all costs incurred by the Miracle League in connection with the Town's -5- default In addition to any other remedies available at law or equity, in the event,of'default by the Town, the Miracle League shall have the right to terminate this Agreement upon delivery of written notice of'its election thereof to the Town D All rights and remedies of the Town and the Miracle League herein enumerated shall be cumulative and none shall exclude any other right or remedy allowed by law, and said rights and remedies may be exercised and enforced concurrently and whenever and as often as occasion therefor arises 21 SUCCESSORS AND ASSIGNS This Agreement shall inure to the benefit of and be binding upon the respective successors and assigns (including successive, as well as immediate, successors and assigns) of the parties hereto 22 GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina 23 MISCELLANEOUS A Merger and Modification. This instrument constitutes the entire agreement between the parties and supersedes any and all prior agreements, arrangements and understandings, whether oral or written, between the parties. All negotiations, correspondence and memorandums passed between the parties hereto are merged ,herein and this agreement cancels and supersedes all prior agreements between the parties with reference thereto. No modification of this instrument shall be binding unless in writing, attached hereto, and signed by the party against whom or which it is sought to be enforced B. Waiver. No waiver of any right or remedy shall be effective unless in writing and nevertheless shall not operate as a waiver of any. other right or remedy or of the same right or remedy on a future occasion. C Caption and Words The captions and headings contained herein are solely for convenience and reference and do not constitute a part of this instrument. All words and phrases in this instrument shall be construed to include the singular and plural number, and the masculine, feminine or neuter gender, as the context requires D Binding Effect This instrument shall be binding upon and shall insure to the benefit of the parties and their heirs, successors and permitted assigns. E Situs This instrument shall be construed in accordance with the laws of North Carolina without giving effect to its conflict of laws principles with a situs and venue of the General Court of Justice of the State of North Carolina im Smithfield, NC. F Two Originals This instrument may be executed in two (2) or more counterparts as the parties may desire, and each counterpart shall constitute an original. 01 G. Follow Through. Each party will execute and deliver all additional documents and do all such other acts as may be reasonably necessary to carry out the provisions and intent of this instrument H. Authority Any corporate party or business entities and its designated partners, venturers, or officers have full and complete authority to sell, assign and convey the contracts and assume the obligations referred to herein, said corporations or entities are in good standing under North Carolina law. I Severability If any one or more of the terms, provisions, covenants or restrictions of this agreement shall be determined by a Court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated. If, moreover, any one or more of the provisions contained in this Contract shall for any reason be determined by a Court of competent jurisdiction to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed, by limiting or reducing it, so as to be enforceable to the extent compatible with the then applicable law J Notice. All notices, demands or writings in this Contract provided to be given or made or sent that may be given or made or sent by either,party hereto to the other, shall be deemed to have been fully given or made or sent when made in writing and deposited in the United States Mail, registered and postage prepaid, and addressed as follows To Tim Johnson Parks and Recreation Director Parks and Recreation Department Town of Smithfield PO Box 2344 Smithfield, NC 27577 To The address to which any notice, demand or writing may be given or made or sent to any party as above provided may be changed by written notice given by such party as above provided -7- IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed effective as of the date and year first above written THE MIRACLE LEAGUE OF JOHNSTON COUNTY, INC By qo'—CMq b Its THE TOWN OF SMITHFIELD, NORTH CAROLINA 4By-rman R Jo n Its Mayor STATE OF NORTH CAROLINA COUNTY OF JOHNSTON a Notary Public of the County of Johnson, State of North Carolina, hereby certify that M my C McLamb, personally appeared before me tlus day, and being duly sworn state that he is �� r�l'sh� r of The Miracle League of Johnston County, Inc., a North Carolina corporation, and that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that by authority duly given, and as the act of said corporation and limited liability company, the foregoing instrument was signed in its name and sealed by its T*, (-vv' for and on behalf of said corporation Witness my hand and official seal this I ("'day of Q 2009 Q"tk I Notary Public My commission expires q q - rNO,A &);IP L) No ARr- =o �_ 04 CwK 00 '�011111111100 -8- NORTH CAROLINA, COUNTY OF JOHNSTON I, btb rQ UV - Wauxna Notary Public of the County and State aforesaid, certify that Norman R. Johnson, personally came before me this day and acknowledged that be is the Mayor of the Town of Smithfield, a North Carolina municipal corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed him. Witness my hand and official stamp or seal, tlus 3 day of MO-P-6 2009 W Notary Public ission S. Z3-0q C ��0�• O ARYZ L �O �� CO. la PUBLIC NOTICE LEASE OF TOWN PROPERTY ,In accordance with North Carolina General Statute 160A -272, The Town Council of the Town of Smithfield intends to enter into a lease of the following Town -owned property LEASED PREMISES For and in consideration of the covenants contained in thisLease, the Town does hereby lease unto the Miracle League of,Johnston County for the purposes stated herein a parcel of real property located to the west of the main entrance to the Smithfield Community Park on Booker Dairy Road in Smithfield, North Carolina, more particularly described as follows (hereinafter referred to as the "Premises ") An area at the Smithfield Park consisting of not less than 15,102 sq. feet suitable for the construction of a Miracle League Field; said area including the playing field and the dugouts and` foul areas designated by the Town and agreed to by the Miracle League The Town intends to lease the property to the Miracle League of Johnston County, INC for a term of ten years In consideration of the lease, Miracle League of Johnston County INC The Miracle League shall pay to the Town for the use of the Premises the sum of One Dollar ($100) per year and provide such additional consideration as set forth herein The Miracle League agrees that it will (1) pay for and construct upon the Premises a custom - designed baseball sports facility for use by individuals with special needs, and for no other purpose without the written consent of the Town indorsed on this Lease, (2) operate on the Premises a recreational program that will allow those Individuals with special needs to participate in an organized recreational program, (3) pay for and provide all equipment and other improvements necessary for the operation of the above described program and to comply with the terms and intent of this Lease, (4) pay for all costs associated with relocating the walking track, (5) pay for all park modifications required for the construction of the special Miracle League Field, and (6) provide all services and pay all expenses incidental to the operation of the program, provided, however, all new construction, modifications, and alterations to the leased premises and any facilities located thereon during the lease term must be approved by the Town The Miracle League will construct a 'Miracle League' field or cause the same to be constructed on the Premises in accordance with plans and specifications approved by the Town Prior to the commencement of construction of any of the Miracle League field, the Miracle League will proved the Town with initial plans and specifications related to such construction Within fourteen (14) days after receipt of such plans and specifications by the Town, the Town will review such plans and specifications and notify the Miracle League if such plans and specifications are approved, which approval shall not be unreasonably withheld Further, any material changes to the plans and specifications previously approved in accordance with this section shall be subject to the same approval requirements set forth herein Upon completion of the construction of the Miracle League field, the Miracle League field will meet and satisfy the project specifications and plans and specifications approved in accordance with this Section in all material respects The Parties agree that the Town shall have no financial responsibility with respect,to the construction, operation, or maintenance of the Miracle League field unless otherwise noted in this Agreement All persons interested in this lease are invited to attend the Town Of Smithfield Town Council meeting to be held in the Council Chambers, Town Hall, 350 E Market Street, at 7 30 P m, on Tuesday, March 3, 2009 At that time the Council intends to authorize the lease of the property described above Debra W Godwin Town Clerk Town of Smithfield Run February 18, 2009 I 1 Lc- 419, - � zRhtyCi n� �OHi ;T91 r, Ic �U