Fill - Free fillable CITY OF HENDERSONVILLE CITY COUNCIL REGULAR MEETING N (City of Hendersonville) PDF form

A G E N D A

CITY OF HENDERSONVILLE CITY COUNCIL – REGULAR MEETING

OVEMBER 5, 2015 – 5:45 P.M.

Council Chambers – City Hall

1. Call to Order

Invocation

and Pledge of Allegiance

Public Comment Time:

Up to 15 minutes is reserved for comments from the public

for items not listed on the agenda

Consideration of Agen

Consideration of Consent Agenda:

These items are considered routine,

noncontroversial in nature and are considered and approved by a single motion and

vote.

A. Considera

tion of Minutes:

i. October 1,

2015 Regular Meeting

B. Considera

tion of Job Reclassifications:

Fire Chief

ii. Parking Enforcement

Officer

C. Consideration of an Amendments to the Personnel Policy Relating to:

i. Funeral Le

ave

ii. Vacation Leave

iii. “Hiring R

ate” and “Minimum Rate” and Utilizing Compensatory Time

D. Consideration of Budget Amendments (5)

i. Environmental

Services Fund Recycling Grant: Increase $

8,000

ii. Body

Camera Grant: Increase $14,720

iii. Fix to add overti

me and p/t budget: Net Increase/Decreas

e: $0

iv. Incre

ase parking meter revenue budget: Increase $23,980

v. Wellness Grant:

Increase $

5,000

E. Consideration of Land Lease Agreement with Skyway Towers to Erect a Cell

Tower on City of Hendersonville Property at 423 Armstrong Avenue and

Associated Budget Amendment

F. Consideration of a Petition from Capital Funds, Inc. to Close an Unopened

Right-of-Way for Yarborough Street Located on PIN 9568-75-5382

G. Consideration of a Request for a Waiver of Sidewalk Permit Fees in the

Downtown Municipal Service District Related to Christmas Decorations and

Removal

H. Establish an Alternate City Representative on the Henderson County

Transportation Advisory Committee

I. Consideration of a Proposal to Engage Fountainworks to Assist in the

Development of a Regional Stakeholders Planning Group to Develop long-

term Options for Water Supply and Infrastructure

J. Consideration of Contract Award for Britton and Clear Creeks Streambank

Stabilization

K. Consideration of Amendments to the Composition of the Tree Board

6. Public Recognition: Service Excellence Quarterly MVP Nominees

Presenter: Mayor Barbara Volk, City Manager John Connet

7. Recognition: Governmental Finance Officers Association (GFOA) Distinguished

Budget Presentation Award

Presenter: City Manager John Connet

8. Quasi-Judicial Public Hearing – Consideration of an Application from Hickory Realty

Fund LLC for a Special Use Permit to Construct 206 Multi-Family Residential Units

on 21 acres Located Adjacent to North Main Street near Baldwin Hill Avenue

Presenter: Planning Director Sue Anderson

9. Consideration of an Ordinance Amending Section 36-87 of the Code of Ordinances

Respecting Weapons

Presenter: City Manager John Connet

A. Consideration of Weapons on City Property

B. Consideration of Concealed Carry Exemption (Second Reading)

10. Consideration of a Proposal to Engage the UNC School of Government Development

Finance Initiative to oversee the Pre-Development Process to Further the City's

Community and Economic Development Goals in and around Downtown

Hendersonville

Presenter: City Manager John Connet

11. Consideration of a Request to Establish Four Free 30-Minute Parking Spaces in the

Azalea Parking Lot

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Presenter: City Manager John Connet

12. Comments from Mayor and City Council Members

13. Reports from Staff

14. Boards and Commissions: Consideration of Appointments and Announcement of

Vacancies/Upcoming (Re)appointments

A. Consideration of Selection Committee for the Bicycle Plan

Presenter: Dave Hazzard, City Planner

B. Consideration of (Re)Appointments

Presenter: City Clerk Tammie Drake

C. Announcement of Upcoming Vacancies

15. New Business

16. Staff Request for Closed Session

17. Adjournment

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Brian Pahle

dmin

10/12/15

Brian Pahle

11/05/15

Council Action

05bi

The Fire Chief Position is classified as a Grade 23 where the remainder of Department Head positions that supervisor a

large number of employees are classified as a Grade 24.

We would request that the Fire Chief position be assigned to the grade 24 salary range.

N/A

I move to transition the Fire Chief position from a grade 23 in the pay scale to a grade 24 in the pay scale.

None

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Brian Pahle

dmin

10/15/15

Brian Pahle

11/05/15

Council Action

05bii

Position Reclassification

From: Traffic Enforcement Officer | To: Parking Services Supervisor

Parking Services Supervisor | Grade 10

The City's Traffic Enforcement Officer has taken on further responsibilities and duties which include supervising day to day

operations for up to 3 Downtown Ambassadors. The employee is additionally highly involved in the parking program and

will train new employees and contribute to the decision-making and operation of the evolving parking program. This

reclassification is appropriate to compensate excellent employee service and willingness to expand responsibilities and

duties.

The detail of the reclassification is attached below.

N/A

There are sufficient funds in the Police salaries budget to fund this position reclassification

I move to approve the reclassification as presented.

See below...

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PARKING SERVICES SUPERVISOR

General Statement of Duties

Performs responsible field and recordkeeping work enforcing City parking regulations in the

downtown business district and supervisory work supervising School Crossing Guards, safety at

schools, and Downtown Ambassadors in the enforcement of City parking regulations.

Distinguishing Features of the Class

An employee in this class enforces City parking and traffic ordinances, assuring sidewalks

and streets are free of safety or blocking hazards, marking tires and issuing tickets for parking and

meter violations; enforcement work includes maintaining records of collections and tickets, data

entry of parking citations, preparation of letters to collect overdue fines and maintaining records of

collections. The employee is also responsible for supervising School Crossing Guards, including

hiring, background checks, assignments, payroll, monitoring work and filling in as needed.

Additionally, the employee is responsible for supervising Downtown Ambassadors, including

monitoring work, communications with the public, issuance of citations, maintenance of

recordkeeping, and assignments of routes. Assists and provides input in the performance

evaluations of Downtown Ambassadors. Work is performed in inside and outside environmental

conditions and in extreme temperatures. Work requires the ability to communicate with tact and

courtesy with the public in enforcing regulations. Work is performed under regular supervision and

is evaluated based on effectiveness of enforcement operations and accuracy of records maintained.

Duties and Responsibilities

Essential Duties and Tasks

Supervises School Crossing Guard program; hires, evaluates, trains and makes work

assignments to Guards; completes payroll; monitors posts to assure coverage and fills in as

needed.

Supervises Downtown Ambassadors in the execution of daily parking enforcement services.

Contributes to the evaluation, hiring, and scheduling of Downtown Ambassadors.

Assists Downtown Ambassadors in dealing with public relations.

Meets with school officials and parents concerning potential hazards for safety of children.

Enforces parking regulations and ordinances; patrols the downtown area for parking,

handicapped and loading zone violations and for potential sidewalk and safety issues; enforces

unlawful skateboarding and bicycle riders on sidewalks; observes meters and marks tires during

patrol and observes for time limit violations during subsequent rounds; issues citations for overtime

violators, expired meters, leased parking violations and for other ordinances.

Enters information about citations into computer; collects money; logs payments; prepares

final notice and past due parking letters; researches registration and vehicle ownership; issues civil

citations; files official papers with court and testifies in court when needed.

Meets with public concerning complaints about parking citations; provides copies of

ordinances.

Meets with business owners and officials on potential and previous parking and traffic

issues; refers meter, signage and sidewalk issues to Public Works.

Provides directions and assistance to the public.

Assists law enforcement officers in directing and controlling traffic during emergency

situations and special events.

Maintains parking ticket files, issues parking permits; leases and assigns parking spaces for

City-owned lots.

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3DUNLQJ6HUYLFHV6XSHUYLVRU

Page 2

Additional Job Duties

Participates in planning and organizing special events and functions for the department.

Performs related duties as required.

Recruitment and Selection Guidelines

Knowledges, Skills, and Abilities

Considerable knowledge of City ordinances relating to parking, traffic and school crossing.

Working knowledge of City geography.

Organizational skill and skill in the maintenance of records and reports.

Ability to train and supervise the work of other employees.

Ability to operate a computer terminal and perform data entry with the speed and accuracy

required.

Ability to work in all types of weather.

Ability to effectively enforce parking and crossing regulations.

Ability to operate a motor vehicle.

Ability to work effectively with the public and to enforce regulations fairly and accurately.

Ability to remain calm in frustrating situations and to multi-task.

Physical Requirements

Must be able to physically perform the basic life operational functions of reaching, pulling,

fingering, grasping, talking, hearing, and repetitive motions.

Must be able to medium work exerting up to 20 pounds of force occasionally, and/or up to 10

pounds of force frequently, and/or a negligible amount of force constantly to move objects.

Must possess the visual acuity to operate a computer and a motor vehicle, distinguish tire

markings and vehicle colors and styles, perform visual inspections and prepare and analyze figures.

Desirable Education and Experience

Graduation from high school and some experience in working with the public, preferably in

an enforcement or recordkeeping capacity; or an equivalent combination of education and

experience.

Special Requirements

Possession of a valid N.C. driver's license, and DCI certification may be required.

Hendersonville

2015

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $_________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Jennifer Harrell

dministration

10/14/15

Jennifer Harrell

11/05/15

Presentation Only

To clarify in the Personnel Policy the number of hours that an employee may take for Funeral leave.

05ci

I move Counicil's approval of the revision of the Funeral Leave Policy.

Article VII Section 17 Funeral Leave

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Section 17. Funeral Leave

An employee who has a death in the Immediate Family Eligible employees scheduled to work

eight (8) hour days or twelve (12) hour days that has a death in the Immediate Family (as

defined in Section 12 of this Article) is eligible for up to 3 days of paid family leave DUHHOLJLEOHWR

receive up to twenty-four (24) working hours of paid Funeral leave. Eligible employees

scheduled to work twenty-four (24) hour shifts DUHHOLJLEOHWRUHFHLYHup to twenty-four (24)

working hour’s RIpaid Funeral leave. Any additional time or for deaths that are not covered by

the Immediate Family designation, vacation leave or accrued compensatory time may be taken.

Funeral leave pay cannot duplicate any other compensation of the same time period. The City

may request documentation for this leave whenever there is a pattern of absenteeism

demonstrated by the employee or for other reasons as needed.

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $_________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Jennifer Harrell

dministration

10/14/15

11/05/2015

Council Action

To revise the manner of taking vacation leave, Article VII. Section 9 of the Personnel Policy. Our current vacation leave

policy states that employees may take leave in one hour increments. Whereas our current sick leave policy states that

employees may take leave in 1/2 hour increments. This revision would allow the policies to be equal and employees

would be able to take vacation leave in 1/2 hour increments.

05cii

0.00

I move to approve the revision to the Personnel Policy of the manner of taking vacation leave.

Section VII Section 9.Vacation Leave: Manner of taking

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Section 9. Vacation Leave: Manner of Taking

Employees shall be granted the use of earned vacation leave upon request in advance at those

times designated by the Department Head which will least obstruct normal operations of the City.

Department Heads are responsible for insuring that approved vacation leave does not hinder the

effectiveness of service delivery. Vacation may be taken in one hour one half (1/2 hour)

increments.

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Brian Pahle

dmin

10/09/15

Brian Pahle

11/05/15

Council Action

05ciii

The personnel policy, as currently written, provides opportunity for inequity among City employees. The inequity arises

from the wording involving "hiring rate" and "minimum rate". A goal of the policy is to employ personnel at the minimum

rate and move them through the pay range. The current wording of Article III Sec. 8 Promotions and Reclassifications do

not provide the proper avenue for achieving this goal. Employees can get stuck in between the hiring rate and the

minimum rate, when they should really be at the minimum. Additionally, Article III Section 10 Transition to a New Salary

Plan does not provide a needed sentence, found in other sections, that also accomplishes the goal of the policy.

Employees should be advanced to the minimum if they have completed their probationary period, not the hiring rate.

Additionally, it is recommended that the sentence "Employees are required to utilize compensatory time before vacation or

sick time" that was added last month be removed. This adds an additional burden on the employees and the rest of the

revision from October still effectively accomplishes the goal of paying employees for their overtime worked.

N/A

I move to approve the personnel policy revisions as presented.

See below...

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ARTICLE III. THE PAY PLAN

Section 1. Definition

The pay plan includes the basic salary schedule and the "Assignment of Classes to Grades" adopted

by the City Council. The salary schedule consists of hiring rate, minimum or beginning, midpoint, and

maximum rates of pay for all classes of positions, and a designation of the standard hours in the work

week for each position.

Section 2. Administration and Maintenance

The City Manager, assisted by the Human Resources Officer, shall be responsible for the

administration and maintenance of the pay plan. All employees covered by the pay plan shall be paid

at a rate listed within the salary range established for the respective position classification, except for

employees in trainee status or employees whose existing salaries are above the established maximum

rate following transition to a new pay plan.

The pay plan is intended to provide equitable compensation for all positions, reflecting differences in

the duties and responsibilities, the comparable rates of pay for positions in private and public

employment in the area, changes in the cost of living, the financial conditions of the City, and other

factors. To this end, each budget year the Human Resources Officer shall make comparative studies

of all factors affecting the level of salary ranges including the consumer price index, anticipated

changes in surrounding employer plans, and other relevant factors, and will recommend to the City

Manager such changes in salary ranges as appear to be pertinent. Such changes shall be made in the

salary ranges such that the hiring rate, all intervening rates, and the maximum change according to the

market. Periodically, the City Manager shall recommend that individual salary ranges be studied and

adjusted as necessary to maintain market competitiveness. Such adjustments will be made by

increasing or decreasing the assigned salary grade for the class and adjusting the rate of pay for

employees in the class when the action is approved by the City Council.

Section 3. Starting Salaries

All persons employed in positions approved in the position classification plan shall be employed at the

hiring rate for the classification in which they are employed; however, exceptionally well qualified

applicants may be employed above the hiring rate of the established salary range upon approval of the

City Manager.

Section 4. Trainee Designation and Provisions

Applicants being considered for employment or City employees who do not meet all of the requirements

for the position for which they are being considered may be hired, promoted, demoted, or transferred by

the City Manager to a "trainee" status. In such cases, a plan for training, including a time schedule,

must be prepared by the Department Head.

"Trainee" salaries shall be no more than two grades below the minimum salary rate established for the

position for which the person is being trained. A new employee designated as "trainee" shall be

regarded as being in a probationary period. However, probationary periods shall be no less than six

months and trainee periods may extend from three to eighteen months. A trainee shall remain a

probationary employee until the trainee period is satisfactorily completed.

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If the training is not successfully completed to the satisfaction of the City Manager, the trainee shall be

transferred, demoted, or dismissed. If the training is successfully completed, the employee shall be

paid at least at the hiring rate established for the position for which the employee was trained.

Section 5. Probationary Pay Increases

Employees hired or promoted into the hiring rate of the pay range shall receive a salary increase within

the pay range of approximately 5% upon successful completion of the probationary period. Employees

serving a twelve-month probationary period may be considered for this increase after six months of

employment.

Section 6. Merit Pay

Upward movement within the established salary range for an employee is not automatic, but rather

based upon specific performance-related criteria. Procedures for determining performance levels and

performance pay increases or other performance-related movement within the range shall be

established in procedures approved by the City Manager.

Section 7. Merit Pay Bonus

Employees who are at the maximum amount of the salary range for their position classification are

eligible to be considered for a Merit Bonus at their regular performance evaluation time. Merit bonuses

shall be awarded based upon the performance of the employee as described in the performance

evaluation and in the same amounts as employees who are within the salary range. Merit bonuses

shall be awarded in lump sum payments and do not become part of base pay.

Section 8. Salary Effect of Promotions, Demotions, Transfers, and Reclassifications

Promotions. The purpose of the promotion pay increase is to recognize and compensate the

employee for taking on increased responsibility. When an employee is promoted, the employee's

salary shall normally be advanced to the hiriQJ PLQLPXPrate of the new position, or to a salary which

provides an increase of at least approximately 5% over the employee's salary before the promotion,

whichever is greater. In the event of highly skilled and qualified employees, shortage of qualified

applicants, or other reasons related to the merit principle of employment, the City Manager may set

the salary at an appropriate rate in the range of the position to which the employee is promoted that

best reflects the employees qualifications for the job and relative worth to the City, taking into account

the range of theposition and relative qualifications of other employees in the same classification. In no

event, however, shall the new salary exceed the maximum rate of the new salary range. In setting the

promotion salary, the City shall consider internal comparisons with other employees in the same or

similar jobs.

Demotions. Demotion is the involuntary movement of an employee from one position to a position in

a class assigned to a lower salary range. When an employee is demoted to a position for

which qualified, the salary shall be decreased at least 5%. Salaries of demoted employees may be no

greater than the maximum of the new range.

Reassignments. A reassignment is defined as the voluntary movement to a position in a lower salary

range. When an employee takes a reassignment, the salary shall be set at the rate in the lower pay

range which provides a salary commensurate with the employees’ qualifications to perform the job and

consistent with the placement of other employees within the same classification. Salary may be

retained at the same level when this option does not create internal inequities with other employees in

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the same or similar job.

Transfers. The salary of an employee reassigned to a position in the same class or to a position in a

different class within the same salary range shall not be changed by the reassignment.

Reclassifications. An employee whose position is reclassified to a class having a higher salary

range shall receive a pay increase of approximately 5% or an increase to the hiring PLQLPXPrate of

the new pay range, whichever is higher. If the employee has completed probation, the

employee’s salary shall be advanced to at least the probation completion amountPLQLPXP in

the new range.

If the position is reclassified to a lower pay range, the employee's salary shall remain the same. If

the employee's salary is above the maximum established for the new range, the salary of that

employee shall be maintained at the current level until the range is increased above the

employee's salary.

Section 9. Salary Effect of Salary Range Revisions

When a class of positions is assigned to a higher salary range, employees in that class shall receive

a pay increase of at least approximately 5%, or to the hiring PLQLPXP rate of the new range,

whichever is higher. If the employee has passed probation, the employee’s salary shall be advanced

at least to the probation completion amount (minimum) in the new range. When a class of

positions is assigned to a lower salary range, the salaries of employees in that class will remain

unchanged. If this assignment to a lower salary range results in an employee being paid at a rate

above the maximum rate established for the new class, the salary of that employee shall be

maintained at that level until such time as the employee's salary range is increased above the

employee's current salary.

Section 10. Transition to a New Salary Plan

The following principles shall govern the transition to a new salary plan:

 No employee shall receive a salary reduction as a result of the transition to a new salary plan.

 All employees being paid at a rate lower than the hiring rate established for their respective

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 All employees being paid at a rate below the maximum rate established for their respective

classes shall be paid at a rate within the salary schedule.

 All employees being paid at a rate above the maximum rate established for their respective

classes shall have their salaries maintained at that salary level with no increases until such

timeas the employees' salary range is increased above the employees' current salary.

Section 11. Effective Date of Salary Changes

Salary changes approved after the first working day of a pay period shall become effective at the

beginning of the next pay period, or at such specific date as may be provided by procedures approved

by the City Manager.

Section 12. Overtime Pay Provisions

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scheduled hours as necessitated by the needs of the City and determined by the Department Head.

Overtime work should normally be approved in advance by the Department Head, City Manager or

other designated City official.

To the extent that local government jurisdictions are so required, the City will comply with the Fair Labor

Standards Act (FLSA). The Human Resources Officer shall determine which jobs are "non-exempt"

and are therefore subject to the Act in areas such as hours of work and work periods, rates of overtime

compensation, and other provisions.

Non-exempt employees will be paid at a straight time rate for hours up to the FLSA established limit for

their position (usually 40 hours in a 7-day period; 171 hours for police and 212 hours for fire personnel

in a 28 day cycle). Hours worked beyond the FLSA established limit will be compensated in either time

or pay at the appropriate overtime rate. In determining eligibility for overtime in a work period, only

hours actually worked shall be considered; in no event will vacation, sick leave, or holidays be included

in the computation of hours worked for FLSA purposes. Compensatory leave balances may not exceed

240 hours except for public safety employees (sworn police and firefighting employees) who may not

accrue more than 480 hours. Any overtime worked after such maximum balances must be

compensated in pay.

Employees are required to use or be paid for compensatory time before the start of each fiscal

year, by June 30th. Any unused compensatory time will be paid out, in accordance with FLSA

standards, upon the last pay period for the fiscal year. Departments Heads may exercise discretion

in the manner in which employees accrue compensatory time or are paid for overtime. Employees

are required to utilize compensatory time before vacation or sick time.

Whenever practicable, departments will schedule time off on an hour-for-hour basis within the

applicable work period for non-exempt employees, instead of paying overtime.

Employees in positions determined to be “exempt” from the FLSA (as Executive, Administrative or

Professional staff) will not receive pay for hours worked in excess of their normal work periods. These

employees may be granted flexible time by their supervisor on an hour for hour basis where the

convenience of the department allows. Such flexible time is not guaranteed to be taken and ends

without compensation upon separation from the organization.

Section 13. Call-back and Stand-by Pay

The City provides a continuous twenty-four hour a day, seven day a week service to its customers.

Therefore, it is necessary for certain employees to respond to any reasonable request for duty at any

hour of the day or night. One of the conditions of employment with the City is the acceptance of a

share of the responsibility for continuous service, in accordance with the nature of each job position. If

an employee fails to respond to reasonable calls for emergency service, either special or routine, the

employee shall be subject to disciplinary actions up to and including dismissal by the City Manager.

Call-back. Non-exempt employees will be guaranteed a minimum payment of two hours of wages for

being called back to work outside of normal working hours. "Call-back" provisions do not apply to

previously scheduled overtime work (scheduled one or more days in advance).

Stand-by. Stand-by time is defined as that time when an employee must carry a pager or other

communication device and must respond immediately to calls for service. Non-exempt employees

required to be on "stand-by" duty will be paid for two hours of work for each day of stand-by time they

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Section 14. Payroll Deduction

Deductions shall be made from each employee's salary, as required by law. Additional deductions may

be made upon the request of the employee on determination by the City Manager as to capability of

payroll equipment, associated increase in workload and appropriateness of the deduction.

Section 15. Hourly Rate of Pay

Employees working in a part-time or temporary capacity with the same duties as full-time employees

will work at a rate in the same salary range as the full-time employees.

Section 16. Longevity Pay

Full-time and part-time employees of the City are compensated for years of continuous service by

payment of a longevity supplement based on the following table. Employees shall receive longevity pay

in the payroll that contains their anniversary date. Longevity pay shall reflect their continuous years of

service as of their anniversary date according to the following schedule:

Years of Service Longevity Amount

5 - 9 1.00%

10 - 14 1.50%

15 - 19 2.00%

20 plus 2.50%

Longevity pay may be approved each fiscal year depending upon the financial conditions of the City

and would not be considered a part of the annual base pay. Appropriate federal state, retirement, etc.

deductions will be made.

Section 17. Pay for Interim Assignments in a Higher Level Classification

An employee who is formally designated by the City Manager to perform the duties of a job that is

assigned to a higher salary grade than that of the employee’s regular classification shall receive an

increase for the duration of the Interim assignment. The employee shall receive a salary adjustment to

the minimum level of the job in which the employee is acting or an increase of 5%, whichever is greater.

The salary increase shall be temporary and upon completion of the assignment, the employee shall go

back to the salary he or she would have had if not assigned in the Interim role, taking into account any

increases the employee would have received if they had not been placed in the Interim role.

Return to AgendaReturn to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Brian Pahle

dmin

10/28/15

Brian Pahle

11/05/15

Council Action

05d

Budget Amendments (5)

1. ESF Recycling Grant: Increase $8,000

2. Body Camera Grant: Increase $14,720

3. Fix to add overtime and p/t budget: Net Increase/Decrease: $0

4. Increase parking meter revenue budget: Increase $23,980

5. Wellness Grant: Increase $5,000

N/A

See above

I move to approve the budget amendments as presented.

See below...

Return to AgendaReturn to Agenda

TO MAYOR & COUNCIL -

November

5th

, 2015

FISCAL

YEAR

2016

BUDGET

AMENDMENT

UND

3201

29,440.00

ACCOUNT NUMBER

ORG

OBJECT

DESCRIPTION OF ACCOUNT

INCREASE

CREAS

32000

434991

Grant

evenue

14,720.

3200000 553000 Non-Capit al E

quipmen

t 14,720.00

TOTA

BALANC

$ 29,440.00

$ -

29,440.

. Est ablish bu

et f

the

acceptance

fed

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grant

(DPS G

overnor

's C

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purchase

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CITY

MANAGER Date:

APPROVED

COUNCIL:

11/5/2015

Return to AgendaReturn to Agenda

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Council Action

05e

City Staff has negotiated a Land Lease Agreement with Skyway Towers for a 80X80 area to erect a cell tower on City of

Hendersonville Property at 423 Armstrong Avenue. In addition to all cell phone equipment, Hendersonville Water and

Sewer meter reading equipment will be located on the tower. Skyway Towers will pay the City of Hendersonville $1,750

per month with an annual increase of 2.5%. In addition, the City will receive 20% of any additional revenue from future cell

antenna's that are placed on the tower. The term of the lease is for seven consecutive five year periods (35 years) Staff

recommends approval of the Land Lease Agreement with Skyway Towers.

21,000 Annually

Additional revenue that will be included in future revenue projections. A budget amendment increasing the budget

authority for $10,500 (half a year of collections) is attached.

I move that the City Council approve the Land Lease Agreement with Skyway Towers and the attached budget

amendment.

Proposed Land Lease Agreement

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

LAND LEASE AGREEMENT

THIS LAND LEASE AGREEMENT (“Agreement”), dated as of the latter of the signature

dates below (the “Effective Date”), is entered into between the City of Hendersonville, North Carolina, a

North Carolina municipal corporation, with a mailing address of 145 Fifth Avenue E, Hendersonville,

N.C. 28792-4328 (hereinafter "Landlord") and Skyway Towers, LLC, a Delaware limited liability

company, with a mailing address of 3637 Madaca Lane, Tampa, FL 33618(hereinafter "Tenant").

BACKGROUND

Landlord owns or controls that certain plot, parcel or tract of land, together with all rights and

privileges arising in connection therewith, located at 423 Armstrong Avenue, in the City of

Hendersonville, County of Henderson, State of North Carolina, (collectively, the “Property”). Tenant

desires to use a portion of the Property to develop a wireless cellular tower facility. Landlord desires to

grant to Tenant the right to use a portion of the Property in accordance with this Agreement.

The parties agree as follows:

1. PREMISES.

(a) Landlord leases to Tenant a portion of the Property, the dimensions of which are

approximately 80 L ft X 80 W ft (6,400 square feet), including all the air space above said portion of the

Property (“Leased Premises”), as described on attached Exhibit 1, together with a non-exclusive,

unimpaired ingress/egress Easement, as defined below, for Tenant’s use to and from the nearest public

right-of-way along the Property as described on the attached Exhibit 1. The Property owned by the

Landlord is legally described on Exhibit 2 attached hereto.

During the term of this Agreement, Tenant and its agents, engineers, surveyors and other

representatives will have the right to enter upon the Property and Leased Premises to inspect, examine,

conduct soil borings, drainage testing, material sampling, radio frequency testing and other geological or

engineering tests or studies of the Property (collectively, the “Tests”), to apply for and obtain licenses,

permits, approvals, or other relief required of or deemed necessary or appropriate at Tenant’s sole

discretion for its use of the Leased Premises and include, without limitation, applications for zoning

variances, zoning ordinances, amendments, special use permits, and construction permits (collectively,

the “Government Approvals”), initiate the ordering and/or scheduling of necessary utilities, and

otherwise to do those things on or off the Property that, in the opinion of Tenant, are necessary in

Tenant’s sole discretion to determine the physical condition of the Property and Leased Premises, the

environmental history, Landlord’s title to the Property and Leased Premises and feasibility or suitability

of the Property for Tenant’s Permitted Use, all at Tenant’s expense. Tenant will not be liable to Landlord

or any third party on account of any pre-existing defect or condition on or with respect to the Property and

Leased Premises, whether or not such defect or condition is disclosed by Tenant’s inspection. Tenant will

restore the Property to its condition as it existed as of the Effective Date, reasonable wear and tear and

casualty not caused by Tenant excepted. In addition, Tenant shall indemnify, defend and hold Landlord

harmless from and against any and all injury, loss, damage or claims arising directly out of Tenant’s tests.

(b) If during the term of this Agreement, Landlord decides to subdivide, sell, or change the

status of the zoning of the Leased Premises, Property or any of the Landlord’s contiguous, adjoining or

surrounding parcel or tract (the “Surrounding Parcel”), or in the event of foreclosure, Landlord shall

immediately notify Tenant in writing. Any sale of the Property or Surrounding Parcel shall be subject to

Tenant’s rights under this Agreement. Landlord is free to initiate, impose or consent to any change in the

zoning of the Leased Premises, Property or Surrounding Parcel or impose or consent to any other

restriction so long as such does not impinge upon or diminish Tenant’s rights under this Agreement.

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

2. PERMITTED USE

(a) Tenant desires to erect a wireless communications tower and other related improvements

as enumerated individually on Exhibit 3 (collectively the “Communications Tower Facility” or

“Tower” ) on the leased premises along with the easements defined below, which leased premises is

legally described on Exhibit 1 attached to this Agreement and made a part hereof (the “Leased

Premises”). The Property on which the Leased Premises sits is legally described on Exhibit 2 attached to

this Agreement and made a part hereof (the “Property”). Tenant will install wireless communication

systems and sublease or license the right to transmit and receive communications signals to and from the

Tower. Subject to all governmental permitting requirements, Tenant may also construct buildings or

cabinets on the Leased Premises to house equipment, with standard and emergency electrical provisions

in and to the buildings or cabinets, together with the right to run columns, supports and foundations from

the air space to, on and into the land below and attached and incorporated as though fully here set forth,

for the support of the building(s) that Tenant and subtenant need to erect for their use to meet their

technical needs. The buildings or cabinets and the base of the tower will be fenced with chain link and

barbed wire, or other fence type as determined by Tenant and the respective governmental jurisdiction ,

for security at Tenant’s expense.

(b) A non-exclusive, unimpaired easement and right-of-way for ingress and egress from

public roads, on foot or motor vehicle (the “Easement”), as shown on the attached sketch on Exhibit 1, to

the Leased Premises and related real property for twenty-four (24) hours per day, seven days per week

over and across Landlord’s Property from an adjacent public right-of-way for the purpose of providing

Tenant and its subtenants with a right to cross, and means of reasonable ingress and egress, including

temporary parking of vehicles and equipment, to and from the Leased Premises to install, maintain,

repair, operate, service, replace and remove the Tower and associated equipment and buildings, utility

wires, poles, cables, conduits, and pipes, and to provide utilities to Tenant’s equipment on the Leased

Premises.

Property, for the purposes of providing Tenant with a right (and means of ingress and egress to) to install,

maintain, repair, operate, service, replace and remove all legally permitted utility wires, poles, cables,

conduits, and pipes as set forth in Exhibit 3, so as to provide utilities to the Tenant’s Communications

Tower Facility, to include a thirty (30) foot ingress and egress utility easement, as shown on the attached

sketch on Exhibit 1, attached hereto and made a part hereof (the “Utility Easement”).

(d) A non-exclusive, unimpaired landscape easement for the purposes of providing Tenant

with a right to install and maintain vegetation and screening around the Leased Premises as necessary to

meet the applicable landscaping and buffering requirements of the respective governing jurisdiction’s

regulations, statutes, codes, ordinances and/or conditions of approval; if and when such placement should

ever be required (the “Landscape Easement”).

(e) Landlord and Tenant agree that Tenant, at its sole cost and expense, shall demolish

Landlord’s existing tower located on the Property and, upon completion of the Communications Tower

Facility, shall reinstall the Landlord’s current equipment on the Communications Tower Facility at a

height of no less than one hundred feet(100’). This removal and reinstallation will be at no cost to

Landlord.

(f) In addition to the foregoing, Tenant, its assigns, agents and contractors, are granted the

right, at Tenant’s sole cost and expense, to enter upon the Property and conduct studies as Tenant deems

necessary to determine the suitability of the Property for Tenant’s intended use. These studies may

include, without limitation surveys, soil tests, environmental evaluations, radio wave propagation

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

measurements, field strength tests, and other analyses and studies. Landlord shall cooperate with Tenant

and execute and deliver all documents required to permit Tenant’s intended use of the Property in

compliance with zoning, land use, building and any other necessary regulations, whether local, state, or

federal in nature; and

(g) Tenant shall have the right to assign all or part of the Utility Easement to successors and

assignees, as necessary, including any utility providers, for the purpose of providing electric, telephone

and other utilities to the Leased Premises, which shall include unlimited ingress and egress to the utility

provider across the Property to install, maintain, repair, operate, service, replace and remove such utilities.

Landlord agrees to execute and record a separate utility easement between Landlord and any such utility

provider, if such is recorded easement is required by the utility provider; and

(h) Landlord warrants that it has title to the Leased Premises, and no other person or

corporation has the right to lease the same for the term and the renewals thereof granted by this

Agreement. Landlord further covenants that Tenant, upon the payment of the rents herein, and the

performance of all the conditions herein, shall have the peaceful and quiet possession of the Leased

Premises, without hindrance on the part of the Landlord or any person or persons claiming by, through or

under the Landlord, for the Term, as defined below, herein leased, except that Landlord may cultivate the

remainder of the Property as long as it does not unreasonably interfere with Tenant’s use of the Leased

Premises.

3. TERM

(a) The initial term of the lease granted under this Agreement will be five (5) years (the

“Initial Term”) commencing on the earlier of the (i) first day of the month following the date Tenant

commences excavation for the construction of the tower foundation on the Property; or (ii) one hundred

twenty (120) days from the date Tenant receives a building permit for the construction of the

Communication Tower Facility; or (iii) one hundred eighty (180) days from the Effective Date of this

Agreement (the “Commencement Date”), unless otherwise terminated as provided in Paragraph 13

herein.

(b) Tenant shall have the right to renew this Agreement for seven (7) successive five (5) year

periods (the “Renewal Terms”), on the same terms and conditions as set forth herein.

each successive Renewal Term unless Tenant notifies Landlord of its intention not to renew prior to the

commencement of the succeeding Renewal Term, on or before three (3) months before the end of the

Agreement term or renewal, or unless Landlord has received a final judgment from an appropriate court

that Tenant has failed or refused to cure or remedy a violation of this Agreement for which it has received

written notice.

(d) If this Agreement is terminated prior to the end of any five (5) year term Tenant shall pay

Landlord an early termination fee equal to six (6) month’s Rent at the then current monthly rate.

(e) The Initial Term and any Renewal Terms shall collectively be referred to as the “Term”.

4. RENT

(a) Within fifteen (15) days after the Commencement Date, and on the first day of each

month thereafter during the Term of this Agreement, Tenant covenants and promises to pay to Landlord

as rent for the Leased Premises, Twenty One Thousand and No/100 Dollars ($21,000.00), yearly with

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

said payment being paid in advance in monthly payments of One Thousand Seven Hundred Fifty and

No/100 Dollars ($1,750.00), plus applicable sales taxes (if any) (“Rent”).

Rent shall be increased on the annual anniversary of the Commencement Date by an amount

equal to two and one-half percent (2.5%) of the Rent from the previous year.

(b) As a condition precedent to payment, Landlord agrees to provide Tenant with a

completed IRS Form W-9 upon execution of this Agreement and at such other times as may be

reasonably requested by Tenant, including any change in Landlord’s name or address.

routing information for such purpose upon request of Tenant.

(d) In the event that Tenant shall sublease a portion of the Leased Premises to allow

collocation by a licensed commercial wireless communications provider (“Sublessee”), Tenant shall pay

to Landlord an amount equal to twenty percent (20%) of the monthly rent due under each additional

collocation that pays rent to Tenant, save and except the first Sublessee. The increased rental payments

shall be due to the Landlord at the time of the commencement of the collocation and receipt of the initial

rent check by the Tenant. Landlord and Tenant agree that such increased rental payments shall be subject

to Tenant’s continuous receipt of rent from said additional licensed wireless communications provider. In

the event that said additional licensed wireless communications provider ceases rent payments to Tenant

or otherwise terminates the sublease, the additional rent that Tenant pays Landlord pursuant to this

provision shall be reduced accordingly effective as of the termination date of the sublease, which date

Tenant shall notify Landlord of in writing.

5. APPROVALS

(a) Landlord agrees that Tenant’s ability to use the Leased Premises is contingent upon the

suitability of the Property for Tenant’s Permitted Use and Tenant’s ability to obtain and maintain all

Government Approvals. Landlord authorizes Tenant to prepare, execute and file all required applications

to obtain Government Approvals for Tenant’s Permitted Use under this Agreement and agrees to

reasonably assist Tenant with such applications and with obtaining and maintaining the Government

Approvals.

(b) Tenant has the right to obtain a title report or commitment for a leasehold title policy

from a title insurance company of its choice and to have the Property surveyed by a surveyor of Tenant’s

choice. In the event Tenant determines, in its sole discretion, due to the title report results or survey

results, that the condition of the Property is unsatisfactory, Tenant will have the right to terminate this

Agreement upon notice to the Landlord. Notwithstanding anything in this subsection, Tenant shall have

no right to, nor shall Tenant make any claim for, any moneys paid prior to the notice of termination under

this subsection (b).

6. USE AND MAINTENANCE During the Term of this Agreement:

(a) Tenant will keep the Leased Premises in reasonably the same condition as it is at the

Commencement Date, except Tenant may erect its Communications Tower Facility on the Leased

Premises together with any buildings, foundations, or appurtenances thereto that are properly permitted

by any appropriate governmental entity.

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

(b) Tenant will be responsible directly to the servicing entities for all utilities required by

Tenant’s use of the Leased Premises, however, Landlord shall cooperate with Tenant to obtain utilities

from any location provided by the servicing utility.

for electricity, telephone service or any other utility used or consumed by Tenant on the Leased Premises.

(d) Provided that Landlord maintains insurance in the amounts set forth in Section 9 below,

Landlord shall, at reasonable times and with reasonable notice as it regards inspecting issues inside an

enclosure, have the right to enter on and into the Leased Premises to inspect, and examine the Leased

Premises upon demonstrating that Landlord carries the insurance coverage set forth in Section 9, below.

Landlord shall indemnify and hold Tenant harmless from any damage it causes to the Leased Premises

and/or the Communications Tower Facility during any such entry.

(e) As the owner of the Communications Tower Facility, Tenant shall at all times assure that

Tenant’s property, including any attachments thereto and associated therewith, is operated and maintained

in full compliance with all applicable safety codes, rules and regulations, including any sub-lessee’s

equipment and that at all times the Leased Premises and Property is maintained in an orderly, neat

manner.

(f) Tenant shall not store any uninstalled or unused equipment or materials on the Leased

Premises for more than forty eight (48) hours, provided that Tenant may place a generator or battery

backup equipment on the Leased Premises for use at this site when needed.

(g) Landlord will maintain and repair the unleased portion of the Property and access thereto

and all areas of the Leased Premises where Tenant and/or any Tenant’s subtenants do not have exclusive

control , in good and tenantable condition, subject to reasonable wear and tear and damage from the

elements. Tenant shall maintain and keep in good repair and in good and tenantable condition all Property

and facilities on which Tenant or any sub-tenants has equipment.

(h) Landlord will be responsible for maintenance of landscaping on the Property. Tenant will

be responsible for the maintenance of landscaping on the Leased Premises installed by Tenant as a

condition of this Agreement or any required permit.

7. WAIVER OF LANDLORD’S LIEN Except for any property subject to a Landlord’s lien,

Tenant shall have the right to remove its property at any time without Landlord’s consent.

8. DEBT SECURITY Title to Tenant’s Communications Shelter, Tower and other equipment

on the Tower and Premises (“Tenant Facilities”) shall be held by Tenant. All Tenant Facilities shall

remain Tenant’s property. Tenant has the right to remove all Tenant Facilities at its sole expense on or

before the expiration or earlier termination of the Agreement; provided Tenant repairs any damage to the

Premises caused by such removal as close to its original condition at the Commencement Date as is

reasonably possible, reasonable wear and tear not caused by Tenant and damage by casualty excepted.

Except as provided herein, Landlord waives any lien rights it may have concerning the Tenant Facilities.

Landlord acknowledges that Tenant may now or in the future enter into financing arrangements with

financing entities for the financing of the Tenant Facilities (the “Collateral”) with a third party financing

entity. In connection therewith, Landlord (i) consents to the installation of the Collateral; (ii) disclaims

any interest in the Collateral as fixtures or otherwise; and (iii) except to the extent that Landlord may

acquire lien rights against the Communications Tower Facility as a result of the execution of a judgment

against Tenant, agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy,

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Skyway Site Id: NC-08823-01 Chariton Ave

attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any

time without recourse to legal proceedings (“Landlord Consents”).

Landlord acknowledges that Tenant has or will enter into certain financial arrangements with

certain financial institutions as administrative agents for itself and various other lenders (the “Lenders”),

also collectively referred to as “Mortgagee” and in connection therewith the Lenders will take a security

interest in the Tenant Facilities and proceeds thereof (collectively the “Collateral”) to be installed upon

the Premises. Landlord acknowledges and represents that the Landlord Consents shall inure to the benefit

of Tenant, the Lenders and any replacement or refinancing Lenders and their successors and assigns for

so long as the Lease Agreement remains in effect.

Notwithstanding anything to the contrary contained in this Agreement, Tenant may assign,

mortgage, pledge, hypothecate or otherwise transfer without Landlord’s consent Tenant’s interest in this

Agreement to any financing entity, or agent on behalf of any financing entity (hereafter, collectively

referred to as “Mortgagees”) to whom Tenant (i) has obligations for borrowed money or in respect of

guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or

(iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or

in respect of guaranties thereof. Tenant shall give prior written notice to Landlord of any such

assignment, mortgage, pledge or transfer of Tenant’s interest in this Agreement.

Landlord agrees to notify Tenant and Tenant’s Mortgagees simultaneously of any default by

Tenant and to give Mortgagees the same right to cure any default as Tenant, except that a cure period for

any Mortgagee shall not be less than ten (10) days after the receipt of the default notice. If a termination,

disaffirmance or rejection of the Agreement by Tenant pursuant to any laws (including any bankruptcy or

insolvency laws) shall occur, or if Landlord shall terminate this Agreement for any reason, Landlord will

give to the Mortgagees the right to enter upon the Premises during a ninety (90) day period commencing

upon the Mortgagees’ receipt of such notice for the purpose of removing Tenant’s Facilities. Landlord

acknowledges that any Mortgagees shall be third-party beneficiaries of this Agreement, and no

amendments or changes may be made to this Section of the Agreement without the written consent of the

Mortgagees.

9. INSURANCE AND LIABILITY Tenant will maintain in full force and effect during the

full term of this Agreement insurance in the amount of not less than $1,000,000.00 for bodily injury and

property damage per occurrence with Tenant and Landlord as insured parties, as their respective interests

may appear, covering the risks generally specified in a public liability insurance policy. Tenant shall

indemnify and hold Landlord harmless against any liability or loss from any personal injury, property or

financial damage or court-awarded damages resulting from or arising out of the use or occupancy of the

Property by Tenant, its employees or agents, including, but not limited to any litigation/attorney costs,

any court-imposed damages, except such liabilities and losses that are due to or caused by the acts or

omissions of Landlord, or its employees or agents. Tenant shall maintain an umbrella policy in the

amount of $10,000,000.00. Landlord shall indemnify and hold Tenant harmless against any liability or

loss from personal injury or property damage resulting from or arising out of the use or occupancy of the

Property by Landlord, or its employees or agents, including, but not limited to any litigation/attorney

costs, any court-imposed damages, except such liabilities and losses that are due or caused by the acts or

omissions of Tenant, or its employees or agents, .

10. MORTGAGES Landlord shall pay when due all payments on any mortgage secured by

the Property in accordance with the terms of the mortgage. Mortgages executed by Landlord after this

Agreement secured by the Property shall be expressly made subject to this Agreement so that Tenant shall

not be affected by a foreclosure of any such mortgage.

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Skyway Site Id: NC-08823-01 Chariton Ave

11. INDEMNITY Landlord and Tenant each indemnify the other against, and hold the other

harmless from any and all costs (including mediation, and expenses) and claims, actions, damages,

obligations, liabilities and liens which arise out of the breach of this Agreement by the indemnifying

party.

12. HAZARDOUS SUBSTANCES Landlord has no knowledge of any substance, chemical,

or waste on, under, or around the Property that is identified as hazardous, toxic or dangerous in any

applicable federal, state or local law, ordinance, rule or regulation (“Hazardous Substances”). Landlord

shall hold Tenant harmless from and indemnify Tenant against any damage, loss, expense, response costs,

or liability, including consultants' fees and any legal and court costs and attorneys' fees resulting from the

presence of Hazardous Substances being generated, stored, disposed of, on, transported to, on, under, or

around the Property as long as the Hazardous Substances were not generated, stored, disposed of, or

transported by Tenant, its employees, agents, or contractors. This paragraph shall survive the expiration

or termination of this Agreement.

13. DEFAULT AND TERMINATION Subject to Paragraphs 3 and 11, this Agreement may be

terminated prior to the expiration of the Initial Term or any Renewal Terms without further liability, by

providing no less than thirty (30) days prior written notice, for the following reasons:

(a) By either party upon a default of any covenant or term hereof by the other party, which

default is not cured within such thirty (30) day period; or

(b) By Tenant if Tenant does not or cannot obtain or maintain any license, permit or other

approval necessary for the construction and operation of Tenant’s Communications Tower Facility; or

of the FCC, including but not limited to, a take back of channels or change in frequencies; or

(d) By Tenant if Tenant determines that the Leased Premises is not appropriate for its

operations, for economic or technological reasons, including without limitation, signal interference; or

(e) The filing of bankruptcy or receivership by either party shall be a default upon the terms

of this Agreement, and such party shall not have any period to correct the default.

(f) On the earlier termination or expiration of this Agreement, Tenant shall remove all of the

Communications Tower Facility and associated equipment, along with any footings installed by Tenant to

a depth of two (2’) feet within the Leased Premises, and Tenant will restore the Leased Premises and

access easement to its condition at the commencement of this Agreement, reasonable wear and tear and

loss by casualty not caused by Tenant excepted.. Landlord covenants and agrees that no part of the

Communications Tower Facility constructed, erected or placed on the Leased Premises by Tenant will

become, or be considered as being affixed to or a part of, the Property. All improvements to be removed

by Tenant on the Leased Premises will be and remain the property of the Tenant and may be removed by

the Tenant, at Tenant’s sole discretion, at any time during the Term.

14. ASSIGNMENT OF LEASE OR PROPERTY Tenant may assignor transfer this Agreement,

in whole or in part,, without the prior written consent of Landlord provided that Tenant’s successor in

interest (i) has been in the tower ownership and management business for a minimum of ten years and (ii)

is a publicly traded company with a market value of at least one billion dollars

($1,000,000,000.00).Tenant may also assign or transfer this Agreement in accordance with Section 8

above. All other assignments shall require the prior written consent of Landlord, such consent not to be

unreasonably withheld, delayed or conditioned. . Tenant shall have the right to lease or sublet to others

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

the right to transmit and receive wireless communications signals by way of equipment on or attached to

the Tower and/or subject to applicable local zoning and land use law, rule and regulation, the right to add

or install properly and legally permitted equipment and/or buildings on the Leased Premises, together

with rights of ingress and egress. Landlord may assign or otherwise transfer this Agreement, upon written

notice to Tenant, except any assignment, conveyance or transfer of this Agreement, which is separate and

distinct from a transfer of Landlord’s entire right, title and interest in the Property, shall require the prior

written consent of Tenant, which may be withheld in Tenant’s sole discretion as more fully described in

Paragraph 16. . Upon assignment, including any assignment requiring Tenant’s consent, Landlord shall be

relieved of all liabilities and obligations hereunder and Tenant shall look solely to the assignee for

performance under this Agreement and all obligations hereunder. Tenant’s right to consent or not to

consent to any transfer which is separate and distinct from a transfer of Landlord’s entire right, title and

interest in the Property is a continuing right in favor of Tenant and cannot be extinguished by Tenant's

consent or non-consent on one or more occasion.

15. SALE OF PROPERTY

(a) Landlord shall not be prohibited from the selling, leasing or using any of the Property except

as provided below.

(b) If Landlord, at any time during the Term of this Agreement, decides to rezone or sell,

subdivide or otherwise transfer all or any part of the Property, to a purchaser other than

Tenant, Landlord shall promptly notify Tenant in writing, and such rezoning, sale,

subdivision or transfer shall be subject to this Agreement and Tenant’s rights hereunder. In

the event the Property is transferred, the new Landlord shall have a duty at the time of such

transfer to provide Tenant with a completed IRS Form W-9, or its equivalent, and other

related paperwork to effect a transfer in Rent to the new Landlord.

Landlord under this Agreement

16. RIGHT OF FIRST REFUSAL /RENTAL STREAM OFFER If at any time after the date of

this Agreement, Landlord receives a bona fide written offer for an instrument of sale, easement, loan, or

other legal document, from a third party seeking an assignment and/or transfer of the revenue rental

stream associated with this Agreement (“Rental Stream Offer”), Landlord shall immediately furnish

Tenant with a copy of the Rental Stream Offer. Tenant shall have the right within Twenty (20) days after

it receives such copy and representation, to agree in writing to match and exceed the terms of the Rental

Stream Offer. Such writing shall be in the form of a contract substantially similar to the Rental Stream

Offer. If Tenant chooses not to exercise this right or fails to provide written notice to Landlord within the

Twenty (20) day period, Landlord may assign the rental stream pursuant to the Rental Stream Offer,

subject to the terms of this Agreement. If Tenant fails or decides not to exercise such right, the right to

match any Rental Stream Offer shall continue as to all new owners and offers.

17. TITLE TO PERSONAL PROPERTY Title to the Communications Tower Facility, and

ownership thereof, its appurtenances and equipment, shall remain with and be in the name of the Tenant.

If this Agreement shall terminate or expire, Tenant retains the right to remove the Communications Tower

Facility in accordance with Section 13(f).

18. NOTICES All notices under this Agreement must be in writing and shall be deemed validly

given if and when sent by confirmed facsimile transmission, overnight express mail services or by

certified mail, return receipt requested, addressed as follows (or any other address that the party to be

notified may have designated to the sender by like notice):

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

If to TENANT:

Skyway Towers, LLC

3637 Madaca Lane

Tampa, FL 33618

ATTN: Property Management-Site Id: NC-08823

Phone No.: (813) 960-6200

Fax No.: (813) 960-6210

If to LANDLORD:

145 Fifth Avenue E.

Hendersonville, N.C. 28792-4328

ATTN: John F. Connet, City Manager

Phone No.: 828/697-3000

19. SEVERABILITY If any term or condition of this Agreement is found unenforceable, the

remaining terms and conditions will remain binding upon the parties as though said unenforceable

provision were not contained herein. However, if the invalid, illegal, or unenforceable provision

materially affects this Agreement then the Agreement may be terminated by either party on ten (10)

business days prior written notice to the other party thereto.

20. CONDEMNATION/EMINENT DOMAIN In the event Landlord receives notification of

any eminent domain or condemnation proceedings affecting the Property, Landlord will provide notice of

the proceeding to Tenant within forty eight (48) hours. If a taking or condemning authority takes the

entire Property, or a portion sufficient, in Tenant’s sole determination, to render the Property unsuitable

for Tenant, this Agreement will terminate as of the date the title vests in the taking or condemning

authority. The parties will each be entitled to pursue their own separate awards in the eminent domain or

condemnation proceeds, which for Tenant will include, where applicable, the value of its

Communications Tower Facility, moving expenses, prepaid Rent, and business dislocation expenses,

provided that any award to Tenant will not diminish Landlord’s recovery. Tenant will be entitled to

reimbursement for any prepaid Rent on a prorata basis.

21. CASUALTY Landlord will provide notice to Tenant of any casualty affecting the Property or

Tract within forty-eight (48) hours of the casualty. If any part of the Communications Tower Facility or

Property is damaged by fire or other casualty so as to render the Property unsuitable, in Tenant’s sole

determination, then Tenant may terminate this Agreement by providing written notice to the Landlord,

which termination will be effective as of the date of such damage or destruction. Upon such termination,

Tenant will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be

reimbursed for any prepaid Rent on a prorata basis. If notice of termination is given, or if Tenant

undertakes to rebuild the Communications Tower Facility, Landlord agrees to use its reasonable efforts to

permit Tenant to place temporary transmission and reception facilities on the Property at no incrementally

additional Rent until such time as Tenant is able to secure a replacement location or the reconstruction of

the Communications Tower Facility is completed.

22. TAXES Landlord shall be responsible for payment of all ad valorem taxes levied upon the

Property, Leased Premises, improvements and other property of Landlord. In the event Landlord fails to

pay any such taxes or other fees and assessments, Tenant shall have the right, but not the obligation, to

pay such owed amounts and deduct them from the Rent amounts due under this Agreement. Tenant shall

be responsible for payment of all documented increases in personal property, real estate taxes and

assessments directly attributable to the Communications Tower Facility, only for so long as this

Agreement remains in effect. Landlord shall provide Tenant with copies of all assessment notices on or

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Skyway Site Id: NC-08823-01 Chariton Ave

including the Communications Tower Facility immediately upon receipt, but in no event less than seven

(7) business days after receipt by Landlord. If Landlord fails to provide such notice within such time

frame, Landlord shall be responsible for any late fees or additional charges associated with the late

payment of such taxes due for the year. Tenant shall have the right to contest, in good faith, the validity or

the amount of any personal property tax or assessment levied against the Leased Property by such

appellate or other proceedings as may be appropriate in the jurisdiction, and may defer payment of such

obligations, pay same under protest, or take such other steps as Tenant may deem appropriate. This right

shall include the ability to institute any legal, regulatory or informal action in the name of Landlord,

Tenant, or both, with respect to the valuation of the Communications Tower Facility. Subject to the

advice of counsel, which advice shall be at the sole cost and expense of the Landlord, Landlord shall

cooperate in the institution and prosecution of any such proceedings and will execute any documents

required therefore. The expense of any such proceedings shall be borne by Tenant and any refunds or

rebates secured as a result of Tenant’s action shall belong to Tenant.

23. TEMPORARY ANTENNA FACILITIES Upon, and after the Commencement Date and

subject to local law and regulation, Tenant and its successors, sublessees and assigns, shall have the right

to install, operate and maintain on the Leased Premises, at Tenant’s sole discretion, temporary antenna

facilities or a cell on wheels (collectively, herein referred to as “COW”), . Tenant and its successors,

sublessees and assigns shall have the right to install, operate or maintain a COW during the initial

construction of the Communications Tower Facility and, as required, upon any repair, modifications,

maintenance or additions to the Communications Tower Facility, , including, but not limited to damage to

the Communications Tower Facility caused by vandalism, natural disaster or sabotage, throughout the

Term of this Agreement. Any COW placed on the premises, in accordance with this Paragraph 23, will

be in place only for so long as the Communications Tower Facility is not fully operational and assuming

that Tenant and its Sub-Tenants pursue the remediation or restoration of its equipment with all due

alacrity, and subject to applicable local law, rule and regulation.

24. OTHER TELECOMMUNICATIONS TOWERS Landlord agrees that Landlord, with

respect to property owned or controlled by Landlord located within two (2) miles of the Leased Premises

(the “Adjacent Property”), grants Tenant a right of first refusal prior to Landlord entering into an

agreement to operate, acquire, or engage in the operation or construction of a telecommunications tower

or allow any third party to operate, acquire, or engage in the operation or construction of a

telecommunications tower so as to directly or indirectly engage in any similar or competing business of

Tenant during the Terms of this Agreement. In the event Landlord is presented with a legitimate written

offer to lease or sell the Adjacent Property to a similar or competing business of Tenant, Landlord agrees

to provide Tenant with a right to match the terms of such written offer to lease or purchase ground space

and build a tower facility on the Adjacent Property. Landlord shall give Tenant written notice of its

intent to accept a legitimate written offer with the specific terms of any such offer to lease or purchase

ground space and Tenant shall give written notice of Tenant’s intent to exercise or not exercise its right of

first refusal within sixty (60) days thereafter. If Tenant chooses not to exercise this right or fails to

provide written notice to Landlord within the sixty (60) day period, Landlord may pursue such land lease

or purchase pursuant to the specific terms of that offer. If Tenant fails or decides not to exercise such

right, the right to match future offer shall continue as to all new owners and offers.

25. MISCELLANEOUS The parties hereto mutually covenant and agree as follows:

(a) This Agreement contains and embraces the entire agreement between the parties, and

neither it, nor any part of it may be changed, altered, modified, limited or extended, orally or by any

agreement between the parties, unless such agreement be expressed in writing, signed and acknowledged

by the Landlord and the Tenant, or their successors in interest. If any term, clause or provision of this

Agreement shall be judged to be invalid, the validity of any other clause or provision of this Agreement

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

shall not be affected thereby. The failure by a party to enforce any provision of this Agreement or to

require performance by other party will not be construed to be a waiver, or in any way affect the right of

either party to enforce such provision thereafter.

(b) Landlord agrees to execute a Memorandum of this Agreement which Tenant may record

with the appropriate recording officer.

non-disturbance agreement from any mortgagee or other lienor. If a satisfactory non-disturbance

agreement is not obtained, then at Tenant’s option Tenant may terminate this Agreement by written notice

to Landlord without further liability whatsoever.

(d) This Agreement and all the covenants and agreements herein contained shall extend to,

bind and run in favor of the heirs, personal representatives, successors and assigns, of the parties hereto.

(e) This Agreement will be governed by the laws of the State of North Carolina.

(f) The submission of this Agreement to any party for examination or consideration does not

constitute an offer, reservation of or option for the Property based on the terms set forth herein. This

Agreement will become effective as a binding Agreement only upon the handwritten legal execution,

acknowledgement, and delivery hereof by Landlord and Tenant.

26. TIME TO CONSTRUCT - Tenant shall expeditiously apply for all necessary federal, state and

local governmental permits and authorizations and shall diligently pursue such permits and

authorizations, and within One Hundred and Twenty (120) days of the issuance of the required building

permits, Tenant shall commence Rent payments in accordance with Section 3(a) above.

IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the last

date written below.

"LANDLORD"

CITY OF HENDERSONVILLE

By:

Print Name:

Its:

Date:

"TENANT"

SKYWAY TOWERS, LLC,

a Delaware limited liability company

By:

Print Name: Scott M. Behuniak

Its: President / COO

Date:

Return to Agenda

Skyway Site Id: NC-08823-01 Chariton Ave

EXHIBIT 1

Page 1 of 2

DESCRIPTION OF LEASED PREMISES

The Leased Premises is 80 feet by 80 feet (6,400 square feet) along with required easements, as more

particularly described and depicted in the attached legal description and/or sketch:

LEGAL DESCRIPTION OF 80' X 80' LEASED PREMISES:ALL THAT CERTAIN LEASE AREA

PARCEL OF LAND, SITUATE, LYING AND BEING IN HENDERSON COUNTY, NORTH

CAROLINA, BEING A PORTION OF THE LANDS DESCRIBED IN DEED BOOK 267 AT PAGE

282 OF THE HENDERSON COUNTY REGISTER OF DEEDS AND BEING MORE

PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT EXISTING IRON ROD ON THE WESTERN LIMITS OF THE PARCEL

DESCRIBED IN DEED BOOK 267, PAGE 282, SAID IRON BEING A COMMON CORNER WITH

THE PARCEL DESCRIBED IN PLAT SLIDE 8686, SAID IRON BEING SOUTH 06°01'14" WEST A

DISTANCE OF 502.64 FT. FROM THE NORTHWEST CORNER OF THE PARCEL DESCRIBED IN

DEED BOOK 267, PAGE 282 AT THE SOUTHERN RIGHT OF WAY AT ARMSTRONG AVENUE,

SAID IRON HAVING NORTH CAROLINA STATE PLANE COORDINATES OF NORTHING =

585,654.59', AND EASTING = 962,380.06'; THENCE FROM THE POINT OF COMMENCEMENT,

NORTH 29°31'09" EAST, A DISTANCE OF 449.58 FT. TO A POINT ON THE SOUTHWEST

CORNER OF THE DESCRIBED 80' X 80' LEASE AREA, SAID POINT BEING THE TRUE POINT

OF BEGINNING, AND HAVING NORTH CAROLINA STATE PLANE COORDINATES OF

NORTHING = 586,045.82', AND EASTING = 962,601.58'; THENCE FROM THE POINT OF

BEGINNING, NORTH 04°02'42" WEST, A DISTANCE OF 80.00 FT. TO A POINT; THENCE

NORTH 85°57'18" EAST FOR A DISTANCE OF 80.00 FT. TO A POINT; THENCE SOUTH 04°02'42"

EAST FOR A DISTANCE OF 80.00 FT. TO A POINT. THENCE SOUTH 85°57'18" WEST FOR A

DISTANCE OF 80.00 FT. TO THE POINT OF BEGINNING.SAID LEASE AREA PARCEL

CONTAINING 6,400 SQ. FT. OR 0.15 ACRES MORE OR LESS.

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Skyway Site Id: NC-08823-01 Chariton Ave

EXHIBIT 1

Page 2 of 2

LEGAL DESCRIPTION OF 30' ACCESS AND UTILITY EASEMENT:

ALL THAT CERTAIN ACCESS AND UTILITY EASEMENT PARCEL OF LAND, SITUATE,

LYING AND BEING IN HENDERSON COUNTY, NORTH CAROLINA, BEING A PORTION OF

THE LANDS DESCRIBED IN DEED BOOK 267 AT PAGE 282 OF THE HENDERSON COUNTY

COMMENCING AT EXISTING IRON ROD ON THE WESTERN LIMITS OF THE PARCEL

DESCRIBED IN DEED BOOK 267, PAGE 282, SAID IRON BEING A COMMON CORNER WITH

THE PARCEL DESCRIBED IN PLAT SLIDE 8686, SAID IRON BEING SOUTH 06°01'14" WEST A

DISTANCE OF 502.64 FT. FROM THE NORTHWEST CORNER OF THE PARCEL DESCRIBED IN

DEED BOOK 267, PAGE 282 AT THE SOUTHERN RIGHT OF WAY AT ARMSTRONG AVENUE,

SAID IRON HAVING NORTH CAROLINA STATE PLANE COORDINATES OF NORTHING =

585,654.59', AND EASTING = 962,380.06'; THENCE FROM THE POINT OF COMMENCEMENT,

NORTH 15°25'14" EAST A DISTANCE OF 548.26 FT. TO A POINT ON THE NORTHWESTERN

CORNER OF THE DESCRIBED 30' ACCESS AND UTILITY EASEMENT; SAID POINT BEING

THE TRUE POINT OF BEGINNING AND HAVING NORTH CAROLINA STATE PLANE

COORDINATES OF: NORTHING = 586,183.12'; AND EASTING = 962,525.86'; THENCE FROM

THE POINT OF BEGINNING AND WITH SAID RIGHT OF WAY NORTH 68°41'42" EAST A

DISTANCE OF 35.93 FT. TO A POINT, THENCE LEAVING SAID RIGHT OF WAY, SOUTH

12°04'34" WEST A DISTANCE OF 87.16 FT. TO A POINT; THENCE SOUTH 79°15'43" EAST A

DISTANCE OF 52.48 FT. TO A POINT; THENCE NORTH 04°02'42" WEST A DISTANCE OF 12.02

FT. TO A POINT; THENCE NORTH 85°28'03" EAST A DISTANCE OF 5.00 FT. TO A POINT ON

THE WESTERN LIMITS OF A DESCRIBED 80' X 80' LEASE AREA; THENCE WITH SAID

WESTERN LIMITS SOUTH 04°02'42" EAST A DISTANCE OF 55.90 FT. TO A POINT ON SAID

WESTERN LIMITS; THENCE LEAVING SAID WESTERN LIMITS SOUTH 85°57'18" WEST A

DISTANCE OF 5.00 FT. TO A POINT; THENCE NORTH 04°02'42" WEST A DISTANCE OF 12.81

FT. TO A POINT; THENCE NORTH 79°15'43" WEST A DISTANCE OF 91.10 FT. TO A POINT;

THENCE NORTH 12°04'34" EAST A DISTANCE OF 98.11 FT. TO THE POINT OF BEGINNING.

SAID EASEMENT AREA PARCEL CONTAINING 5,212 SQ. FT. OR 0.12 ACRES MORE OR LESS.

SEE ATTACHED ONE (1) PAGE SITE PLAN

Notes:

1. This Exhibit may be replaced by a legal description and land survey and/or construction drawings of the

Leased Premises once received by Tenant.

2. Any setback of the Leased Premises from the Property’s boundaries shall be the distance required by the

applicable governmental authorities.

3. Width of the access road shall be the width required by the applicable governmental authorities, including

police and fire departments.

4. The Communications Tower Facility is illustrative only. Actual tower type will be shown on the

construction drawings.

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Skyway Site Id: NC-08823-01 Chariton Ave

EXHIBIT 2

The Property is described as follows:

SITUATED IN THE COUNTY OF HENDERSON, STATE OF NORTH CAROLINA:

BEGINNING AT A POINT WHERE THE WESTERN BOUNDARY LINE OF THE ORIGINAL T. A.

ARMSTRONG 17.4 ACRE TRACT INTERSECTS THE CITY RESERVOIR PIPE RAIL FENCE,

SAID POINT BEING THE SOUTHWEST CORNER OF A 1.14 ACRE TRACT CONVEYED TO THE

CITY WATER COMMISSION BY T. A. ARMSTRONG BY DEED RECORDED IN BOOK 134 AT

PAGE 207 OF THE RECORDS OF DEEDS FOR HENDERSON COUNTY, N. C., AND RUNS

THENCE WITH THE LINES OF SAID 1.14 ACRE TRACT AS FOLLOWS:

NORTH 87° 40' EAST 37.5 FEET TO THE POINT OF CURVATURE OF A 75 FEET RADIUS

CURVE IN SAID PIPE RAIL FENCE; THENCE AROUND THE ARC OF SAID 75 FEET RADIUS

CURVE IN AN EASTERLY AND NORTHERLY DIRECTION, 116 FEET TO THE POINT OF

TANGENCY OF SAID CURVE; THENCE STILL WITH SAID PIPE RAIL FENCE, NORTH 3° 20'

WEST 290 FEET TO A LOCUST POST IN SAID FENCE; THENCE NORTH 49° 36' EAST 66 FEET

TO A STAKE; THENCE NORTH 16° 30' WEST 59.4 FEET TO A STAKE, AND NORTH 10° 22'

FAST 115 FEET TO A STAKE AT A POINT WHERE THE SOUTHEAST MARGIN OF A ROAD

NOW KNOWN AS ARMSTRONG AVE. INTERSECTS THE EASTERN BOUNDARY LINE OF THE

SAID 1.14 ACRE TRACT; THENCE WITH THE SOUTHEAST, AND THE SOUTH AND THE

SOUTHWEST MARGIN OF THE SAID ARMSTRONG AVE. AS FOLLOWS: NORTH 57° 511.1

EAST 42 FEET; NORTH 65° EAST 66 FEET; NORTH 77° 22' EAST 39 FEET; NORTH 81° 20' EAST

27 FEET; SOUTH 890 50' EAST 14.3 FEET; SOUTH 73° K2' EAST 67 FT; SOUTH 49° EAST H6

FEET; SOUTH 30' 50' EAST 112 FEET; SOUTH 20° 47' EAST 45 FEET; SOUTH 190 20' EAST 175

FEET; SOUTH 20° 10' EAST 122 FEET; SOUTH 14° 34' EAST 100 FEET; AND SOUTH 39° 50’

EAST 68 FEET TO A STAKE AT A POINT WHERE SAID MARGIN OF SAID AVENUE

INTERSECTS THE FORMER H. G. EWART (NOW TEMPLE TERRACE) LINE; THENCE WITH

SAID LINE, SOUTH 55° 44' WEST 320 FEET TO A STAKE; THENCE STILL WITH SAID LINE,

SOUTH 74° 54' WEST 412 FEET TO A STAKE AT TIE PLACE OF THE OLD CHESTNUT STUMP

CORNER, WHICH WAS THE BEGINNING CORNER OF THE ORIGINAL 17.4 ACRE TRACT

CONVEYED TO MARY ARMSTRONG BY T. A. ARMSTRONG BY DEED RECORDED IN BOOK

172, AT PAGE 356 OF THE RECORDS OF DEEDS FOR HENDERSON COUNTY; THENCE WITH

THE WESTERN BOUNDARY LINE OF SAID TRACT, NORTH 4° 49' EAST 271 FEET TO THE

POINT OF BEGINNING, AND CONTAINING EIGHT (8) ACRES MORE OR LESS.

SUBJECT TO SUCH RIGHTS OF WAY OR EASEMENTS OVER THE LAND ABOVE DESCRIBED

AS MAY EXIST.

TAX ID NO: 9904645

Note:

This Exhibit may be supplemented or replaced by full legal description based upon a land survey of the Property

once a land survey is received by Tenant.

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Skyway Site Id: NC-08823-01 Chariton Ave

EXHIBIT 3

[Tenant’s equipment information to be inserted]

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Sue Anderson, Planning Director

Development Asst Dept

October 13, 2015

Sue Anderson

November 5, 2015

Council Action

05f

File # P15-44-SC

The City has received an application from Capital Funds Inc., to close an unopened right-of-way for Yarborough Street

located on PIN # 9568-75-5382. This right-of-way is on property located adjacent to the Fresh Market property. A map,

survey and legal description is included.

General Statue 160A-299 has procedures for permanently closing streets and alleys. Whenever there is a proposal to

permanently close any street or public alley, the City Council shall first adopt a resolution declaring its intent to close the

street or alley and shall set a date for a public hearing. At this public hearing, any person may be heard on the question of

whether or not the closing would be detrimental to the public interest or the property rights of any individual.

The Resolution of Intent setting January 7, 2016 as the public hearing date is attached.

0.00

N/A

I move Council to adopt the Resolution of Intent for the closing of an unopened right-of-way for Yarborough Street located

on PIN # 9568-75-5382 as petitioned by Capital Funds Inc.

Memo

Return to Agenda

M E M O R A N D U M

Development Assistance Department

TO: Honorable Mayor and Members of City Council

FROM: Sue Anderson, Planning Director

RE: Capital Funds Inc. Street Closing (File No.P15-44-SC)

DATE: October 13, 2015

The City has received an application from Capital Funds Inc., to close an unopened right-

of-way for Yarborough Street located on PIN # 9568-75-5382. This right-of-way is on

property located adjacent to the Fresh Market property. A map, survey and legal

description is included.

General Statue 160A-299 has procedures for permanently closing streets and alleys.

Whenever there is a proposal to permanently close any street or public alley, the City

Council shall first adopt a resolution declaring its intent to close the street or alley and

shall set a date for a public hearing. At this public hearing, any person may be heard on

the question of whether or not the closing would be detrimental to the public interest or

the property rights of any individual.

The Resolution of Intent setting January 7, 2016 as the public hearing date is attached.

Suggested Motion:

I move Council to adopt the Resolution of Intent for the closing of an unopened right-of-

way for Yarborough Street located on PIN # 9568-75-5382 as petitioned by Capital

Funds Inc.

Return to Agenda

Resolution # _____________

RESOLUTION OF INTENT

A resolution declaring the intention of the City of Hendersonville City Council to consider

closing an unopened right-of-way for Yarborough Street located on PIN # 9568-75-5382

as petitioned by Capital Funds Incorporated.

WHEREAS, NC General Statute (G.S.) 160A-299 authorizes the City Council to

close public streets and alleys, and

WHEREAS, Capital Funds Incorporated has petitioned the Council of the City of

Hendersonville to close an unopened right-of-way for Yarborough Street located on PIN

# 9568-75-5382, and

WHEREAS, the City Council considers it advisable to conduct a public hearing for

the purpose of giving consideration to the closing of an unopened right-of-way for

Yarborough Street located on PIN # 9568-75-5382.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of

Hendersonville:

1. A meeting will be held at 5:45 p.m. on the seventh day of January, 2016, in the

Council Chambers of City Hall to consider closing an unopened right-of-way

for Yarborough Street located on PIN # 9568-75-5382.

2. The City Clerk is hereby directed to publish this Resolution of Intent once a

week for four successive weeks.

3. The City Clerk is further directed to transmit by registered or certified mail to

each owner of property abutting upon that portion of said street a copy of the

Resolution of Intent.

4. The City Clerk is further directed to cause adequate notices of the Resolution

of Intent and the scheduled public hearing to be posted as required by G.S.

160A-299.

Adopted by the City Council at a meeting held on the fifth day of November, 2015.

___________________________________

Barbara G. Volk, Mayor

ATTEST:

______________________________________

Tammie K. Drake, MMC, City Clerk (Seal)

Return to Agenda

Exhibit A

Return to Agenda

LEGAL DESCRIPTION FOR AREA OF YARBOROUGH STREET TO BE CONVEYED

TO PIN 9568-75-5382

Lying in Hendersonville Township, Hendersonville County, North Carolina and being

described according to a survey by McAbee & Associates, P.A. titled “Exhibit For

Closure of Yarborough Street” dated 09-16-15 as follows:

BEGINNING at a point in the northern right of way of Yarborough Street (unopened) (30'

R/W per Deed Book 70, Page 87), said point being located S 03º04'22" E 24.48' from a

#4 REBAR FOUND (0.9' A.G.), located in the northwest corner of PIN 9568-75-5382;

thence from said BEGINNING POINT with the northern right of way of Yarborough

Street (unopened) N 88º07'28" E 69.93' to a point; thence with the northeasterly right of

way of Yarborough Street (unopened) S 37º17'05" E 191.81' to a point; thence with the

easterly right of way of Yarborough Street (unopened) S 02º43'41" E 213.44' to a point

located in the northern line of Joe R. Crowell and Denise J. Crowell (SLIDE 3756);

thence with the northern line of Joe R. Crowell N 79º11'35" W 15.43' (passing through a

point in Yarborough Street at 8.71'); thence with the center of Yarborough Street

(unopened) N 02º43'41" W 63.43' to a point; thence with the center of Yarborough

Street (unopened) N 79º12'04" W 119.11' to a point in the westerly right of way of

Yarborough Street (unopened) (30' R/W PER PCAB B SLIDE 244); thence with the

westerly right of way of Yarborough Street (unopened) N 04º30'07" E 15.09' to a point;

thence with the northerly right of way of Yarborough Street (unopened) S 79º12'04" E

101.73' to a point in the westerly right of way of Yarborough Street (unopened); thence

with the westerly right of way of Yarborough Street (unopened) N 02º43'41" W 118.00'

to a point; thence continuing with the northwesterly right of way of Yarborough Street

(unopened) N 37º17'05" W 167.00' to a point; thence continuing with the northerly right

of way of Yarborough Street (unopened) S 88º07'28" W 53.82' to a #4 REBAR found

(0.4' B.G.); thence with the westerly right of way of Yarborough Street (unopened) N

03º04'22" W 30.01' to the place of BEGINNING containing 0.321 Acres or 13982 Sq.

Feet.

Return to Agenda

AREA OF YARBOROUGH STREET TO BE CONVEYED TO PIN 9568-75-3151

Lying in Hendersonville Township, Hendersonville County, North Carolina and being

described according to a survey by McAbee & Associates, P.A. titled “Exhibit For

Closure of Yarborough Street” dated 09-16-15 as follows:

BEGINNING at a #4 REBAR FOUND (0.1' A.G.) located in the easterly line of Turner J.

Hite and Kathryn J. Hite (Deed Book 940, Page 184), said rebar being located N

02º33'05" W 25.53' from a #4 REBAR FOUND (0.1' B.G.) located in the southeasterly

corner of Turner J. Hite; thence from said BEGINNING POINT with the east line of

Turner J. Hite (also being the western right of way of Yarborough Street (unopened) (30'

R/W per Deed Book 70, Page 87 and N 30' R/W PCAB B SLIDE 244) N 02º43'41" W

48.00' to a #5 REBAR FOUND (0.1' B.G.), located in the northeast corner of Turner J.

Hite; thence with the northern line of Turner J. Hite N 79º12'04" W 105.64' to a 1"Ø

IPIPE FOUND (FLUSH), located in the northwest corner of Turner J. Hite; thence N

04º30'07" E 15.09' to a point in the center of Yarborough Street (unopened); thence S

79º12'04" E 119.11' to a point in the center of Yarborough Street (unopened); thence S

02º43'41" E 63.43' to a point in the center of Yarborough Street (unopened); thence N

79º11'35" W 15.43' to the place of BEGINNING containing 0.058 Acres or 2521 Sq.

Feet.

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Lew Holloway

Downtown

10/27/2015

Lew Holloway (as needed)

November 5th, 2015

Council Action

05g

The Downtown Program is requesting that the typically sidewalk permit fee for any work to be conducted on the exterior of

a building be waived for Christmas Decoration installation by downtown merchants.

The waiver is time limited and specific to November 16th & 17th for decoration installation and January 7th & 8th for

removal of decorations.

The waiver is specific to the Downtown Municipal Service District.

N/A

I move to waive the city's Sidewalk Encroachment Permit for business and property owners within the Downtown (Main

Street) Municipal Service District for the dates of November 16th & 17th, 2015 and January 7th & 8th, 2016 for the

purposes of installing holiday decorations.

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Council Action

05h

The Hendersonville City Council currently has one representative, Steve Caraker, on the Henderson County

Transportation Technical Advisory Committee (TAC) City staff or myself attend the meeting to assist Councilman

Caraker as needed. The Chairman of the TAC has asked that City staff be available to represent the City in Mr. Caraker's

absence, which is very infrequent. Therefore, I am requesting that the City Council to appoint the City Manager or their

designee to serve as an alternate City representative on the Henderson County Transportation Technical Advisory

Committee.

N/A

I move that the City Council appoint the City Manager or their designee as an alternate City representative on the

Henderson County Transportation Technical Advisory Committee.

None

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Council Action

05i

During the 2015 Council/Staff Retreat, we presented the idea of the City of Hendersonville taking a leadership role in the

formation of a regional stakeholders planning group that will develop options for regional water supply and infrastructure.

City Staff recommends the hiring of Fountainworks Facilitation to facilitate and manage the initial process of this endeavor.

We have selected Fountainworks because they have led a similar process in Durham and Wake Counties, they are not an

engineering firm and they have no ties to any of the stakeholders in the region. The initial process would involve a

"Landscape Assessment" of all the potential stakeholders in order to better understand the issues, priorities and end

goals.

19, 591.20

A budget amendment will be prepared to allocate funds from the Water and Sewer Contingency Line Item.

I move that the City Council approve the proposal to engage Fountainworks to assist in development of a regional

stakeholders planning group to develop long-term options for water supply and infrastructure.

Fountainworks Proposal

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Brent Detwiler

Engineering

10/28/15

Brent Detwiler

11/5/15

Council Action

05j

On October 27, 2015, informal bids were received for the Britton Creek and Clear Creek Stabilization Project. The project

generally consists of the installation of approximately 340 linear feet of bioengineering geolifts, log vanes, live staking,

grading, seeding and erosion protection and sedimentation control measures. The construction will be along two different

streams (Britton Creek and Clear Creek) stabilizing streambanks and protecting existing sanitary sewer. The engineer’s

estimate for this project is $60,000. Three (3) bids were received with the following results.

Baker Grading & Landscaping, Inc. - $63,896.00

South Core Environmental - $87,245.00

Haywood Grading & Excavating - $92,654.60*

*(Corrected mathematical error on submitted bid)

City staff has reviewed each bid for completeness and accuracy. As a result of this review, City staff hereby recommends

the award of said project to Baker Grading & Landscaping, Inc. of Old Fort, NC (NC Contractor License No. 36703), the

lowest responsive and responsible bidder, in the amount of $63,896.00. The engineer’s estimate as well as a bid

tabulation showing all the bids and unit prices is attached for your reference. Please let me know if you have any

questions or require additional information regarding this project.

64,000.00

Yes

Note - This work was included as part of the Jackson Park Sewer Interceptor Project (4747141). It was originally part of

the general contractor's work, but was removed and staff later decided to bid separately.

I move to authorize the City Manager to award and execute the contract for the construction of the Britton Creek and

Clear Creek Stabilization Project to Baker Grading & Landscaping, Inc., the lowest responsive and responsible bidder, in

the amount of $63,896.00; as presented and recommended by staff.

Engineer's Estimate, Bid Tabulation

Return to Agenda

Item Quantity Unit Unit Cost Extended

Mobilzation 1 LS 3,000.00$ 3,000.00$

Safety Fence 100 LF 2.00$ 200.00$

Silt Fence 150 LF 2.00$ 300.00$

Construction Entrance 50 LF 20.00$ 1,000.00$

Temporary Stream Crossing 1 EA 1,000.00$ 1,000.00$

Erosion Control Matting 600 SY 5.00$ 3,000.00$

Earthwork 2 1 LS 10,000.00$ 10,000.00$

Stone Toe 230 LF 20.00$ 4,600.00$

Riprap Apron and 18" FES 1 LS 1,000.00$ 1,000.00$

Log Vane 2 EA 1,000.00$ 2,000.00$

Brush Mattress 200 LF 20.00$ 4,000.00$

Geolifts 340 LF 65.00$ 22,100.00$

Live Stakes 550 EA 2.50$ 1,375.00$

Temporary Seeding 60 KSF 12.00$ 720.00$

Permanent Seeding 60 KSF 40.00$ 2,400.00$

Warranty 1 LS 3,000.00$ 3,000.00$

Total Estimate = $59,695

ENGINEER'S ESTIMATE

Britton Creek and Clear Creek Stabilization Project

City of Hendersonville

10/8/2015

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Sam Fritschner

Legal

18 October 2015

Sam Fritschner

5 November 2015

Council Action

05k

Mr. Mac Brackett, chair of the Tree Board, requested a change in the makeup of the Tree Board to permit persons outside

the City's zoning jurisdiction to be members.

A review of the current ordinance shows that the Tree Board was established as a planning agency pursuant to N.C.G.S.

§ 160A-361. That statute does not provide for persons outside the City's zoning jurisdiction to become members of a

planning agency.

Mr. Brackett explained that when the ordinance was most recently amended it was copied from the ordinance of another

jurisdiction and that when the copying was done there was no special intent to make the Tree Board a planning agency.

The proposed amendment would eliminate the provision making the Tree Board a planning agency subject to § 160A-361

and would change the makeup to make "at least" five of the seven members Hendersonville zoning jurisdiction residents.

N/A

I move the City Council to adopt the ordinance amending the establishment and composition of the Tree Board.

Proposed ordinance amendment.

Return to Agenda

Ordinance #15-____

AN ORDINANCE AMENDING SECTION 46-146 OF THE CODE OF ORDINANCES PERTAINING

TO ESTABLISHMENT AND COMPOSITION OF THE TREE BOARD

WHEREAS, the City of Hendersonville’s Tree Board is an integral part of the public services provided by

the City of Hendersonville, and

WHEREAS, the City recognizes the services provided by the Tree Board and desires that the membership

of the Board represent a broad base of the community, and

WHEREAS, the City previously established the Tree Board as a planning agency subject to N.C.G.S. §

160A-361 but now recognizes that it can better serve the public as a City board not subject to the

requirements of that statute,

NOW, THEREFORE, be it ordained by the City Council of the City of Hendersonville:

SECTION 1. Section of the Hendersonville Code of Ordinances is hereby amended to add an

additional section as follows:

Sec. 46-146. - Creation and establishment; number and appointment of

members.

There is hereby created and established the city tree board, hereafter referred to as the

"tree board." The tree board shall be designated a planning agency for purposes of G.S.

160A-361 and shall be appointed by the City Council and shall be composed of seven

persons, who at least five of whom shall be residents of the territory subject to the

zoning jurisdiction of the city or property owners of the city, and who shall be appointed

by the city council. The director of public works shall serve on the tree board as an ex

officio member but will not have voting rights.

SECTION 2. SEVERABILITY. If any provision of this ordinance is for any reason held by a court of

competent jurisdiction to be unconstitutional or invalid, such decision shall not affect the validity

of the remaining provisions of this ordinance.

SECTION 3. EFFECTIVE DATE. This ordinance shall be in full force and effect from and after the

date of its adoption.

Return to Agenda

Adopted this fifth day of November 2015.

_____________________________________

Barbara Volk, Mayor

Attest:

_____________________________________

Tammie K. Drake, MMC, City Clerk

Approved as to form:

_____________________________________

Samuel H. Fritschner, City Attorney

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $_________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Tammie Drake

Administration

10/14/15

11/05/15

John Connet

Presentation Only

As part of our Service Excellence Program, we are recognizing three employees each quarter as "MVPs" who have provided excellent

customer service. These employees are selected from a group of nominations provided by other city employees and selected by

members of our Service Excellence Design Team. The quarterly nominees have the opportunity to selected as the Service Excellence

Employee of the Year.

We will be recognizing the following quarterly nominees at the November City Council meeting:

Donna Fox - Finance Department

James Nitsche - Police Department

Brendan Shanahan - Engineering Department

N/A

None

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Presentation Only

For the second consecutive year, the Governmental Finance Officers Association (GFOA) has awarded the City of

Hendersonville with the GFOA's Distinguished Budget Presentation Award. The award reflects our commitment to

meeting the highest principles of governmental budgeting. In order to receive the budget award, the City had to satisfy

nationally recognized guidelines for effective budget presentation. Brian Pahle, Assistant to the Manager, is responsible

for the development of the budget document and I will present him with the award.

None

N/A

GFOA Press Release

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Sue Anderson, Planning Director

Development Asst Dept

October 27, 2015

Dave Hazzard

November 5, 2015

Council Action

File # P15-29-SUR

The City is in receipt of a Special Use Permit application from Hickory Realty Fund LLC for the development of 21 acres

located adjacent to North Main Street near Baldwin Hill Avenue. This project includes PIN’s 9569-85-8979, 9569-85-3434,

9569-85-7172 and 9569-83-4918.

The overall project consists of residential, commercial, and office uses and is proposed to be done in 5 phases. At this

time, detailed preliminary plans have been submitted for residential phases 1-3 only and the commercial and office phases

will be submitted at a later date. Because there are no details on the commercial / office phases, that portion of the project

will need to go through the Special Use Review process once a detailed preliminary site plan is submitted.

The applicant is proposing the following:

206 Multi-family Units (Phase 1-3)

Commercial, Business, Office, and related commercial uses as per Hendersonville Zoning Ordinance Section 5-15 to be

determined at a later date (Phase 4 & 5).

Rezoning from UV Urban Village and R-20 Low Density Residential to PCD Planned Commercial Development

0.00

N/A

See Page 11 for suggested motions. Please note that there are three components to the motions.

Memo

Return to Agenda

M E M O R A N D U M

TO: Honorable Mayor and City Council

FROM: Sue Anderson

RE: Eastside Meadows

FILE #: P15-29-SUR

DATE: October 27, 2015

PROJECT DESCRIPTION

The City is in receipt of a Special Use Permit application from Hickory Realty Fund LLC

for the development of 21.00 acres located adjacent to North Main Street near Baldwin

Hill Avenue. This project includes four parcels. The PIN’s are 9569-85-8979, 9569-85-

3434, 9569-85-7172 and 9569-83-4918.

The overall project consists of residential, commercial, and office uses and is proposed

to be done in 5 phases as shown on Sheet S-1 on page 22. At this time, detailed

preliminary plans have been submitted for residential phases 1-3 only and the commercial

and office phases will be submitted at a later date. Because there are no details on the

commercial / office phases, that portion of the project will need to go through the Special

Use Review process once a detailed preliminary site plan is submitted. An aerial view of

the project can be found on page 18.

The applicant is proposing the following:

1. 206 Multi-family Units (Phase 1-3)

2. Commercial, Business, Office, and related commercial uses as per Hendersonville

Zoning Ordinance Section 5-15 to be determined at a later date (Phase 4 & 5).

3. Rezoning from UV Urban Village and R-20 Low Density Residential to PCD

Planned Commercial Development

EXISTING LAND USE & ZONING

With the exception of PIN 9569-85-3434, which is zoned R-20 Low Density Residential,

the other three parcels included in this application are part of a Special Use Permit

development called Eastside Village. That development consisted of 27 acres and was

approved by City Council on March 5, 2005. The proposal was for 200 residential units

and 110,000 ft

of non-residential floor area. The zoning of that development was Urban

Village. That Special Use Permit has since expired but the zoning remains intact.

Three of the four parcels included in this application are vacant. A vacant single family

residence fronts on North Main Street on PIN 9569-85-3434. Surrounding parcels include

the previously approved Oklawaha Village project to the west which is zoned PRD

Return to Agenda

CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 2

Planned Residential Development. There are two single-family residential uses also

located to the west which are zoned R-20 Low Density Residential. Parcels to the north

of North Main Street include a church and vacant land which are both zoned R-20 Low

Density Residential. The church parcel is also located to the west of the triangular parcel

that is part of this project.

Parcels located to the north and east of the triangular parcel include single family

residential and vacant land which are zoned R-20 Low Density Residential. One parcel

located to the south of the triangular parcel is vacant and was recently rezoned to C-2

Secondary Business. Other parcels located to the south include two single-family

residential uses and vacant land all zoned R-20 Low Density Residential. Parcels located

to the east and southeast that are zoned C-3 Highway Business include a mobile home

park, an auto dealership and a large vacant parcel.

The parcel to the south west across Mud Creek is zoned R-6 High Density Residential,

vacant, and owned by the City of Hendersonville. The Oklawaha Greenway parallels Mud

Creek in this area. Surrounding zoning classifications are shown on the Zoning Map on

page 19.

COMPREHSIVE PLAN CONSISTENCY

The parcels included in this application are classified as Medium Intensity Neighborhood

and Natural Resource/Agricultural on the 2030 Comprehensive Plan’s Future Land Use

Map. The Comprehensive Plan’s Future Land Use Map is located on page 20.

Surrounding parcels are classified as Medium Intensity Neighborhood, Natural

Resource/Agricultural and Regional Activity Center.

The goal of the Medium Intensity Neighborhood classification is to “provide a transition

between High and Low-Intensity Neighborhood areas, while providing a wide range of

housing formats and price points. Promote walkable neighborhood design that creates

attractive and functional roadway corridors and multi-family residential neighborhoods.”

The goal of the Natural Resource/Agricultural classification is to “create an interconnected

network of green infrastructure that preserves environmentally sensitive areas, protects

water resources through low-impact stormwater management, provides floodwater

storage, provides community open space and recreational opportunities, and preserves

agricultural resources.”

The goal of the Regional Activity Center classification is to a meet the large-scale needs

of Hendersonville residents while encouraging mixed-use, walkable design through

redevelopment and infill projects.

Comprehensive Plan consistency is addressed under “E” on page nine.

Return to Agenda

CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 3

PLAN REVIEW

Survey

Zoning Ordinance Section 7-4-5.1 (h) requires a boundary survey of the site and the

location of all existing easements, buildings, rights-of-ways or other encroachments. The

applicant has not yet provided a boundary survey of these properties. In conversation

with Luther Smith, Landscape Architect, he has relied on surveys of adjacent properties

and portions of these properties. The applicant is required to provide a sealed survey of

all parcels included in this application prior to final site plan approval and that condition is

included in the published List of Uses and Conditions.

Buildings

The detailed Preliminary Site Plan shows residential phases 1-3 and includes the

following:

x Sixteen multi-family buildings with a total of 206 units.

o Building Style 1, which includes building numbers 1, 5, 6, 10, 11, 12, 13, 15

and 16, has 14 residential units each and is three stories

o Building Style 2, which includes building numbers 4, 9 and 14, has 8

residential units each and is three stories

o Building Style 3, which includes building numbers 2, 3, 7 and 8, has 14

residential units each and is three stories

. Building Style 3 has two garages

per building.

As per the applicant all proposed residential structures are to have three

living floors. As topographic conditions dictate, some structures will be two

story as viewed from the street level (see attached architectural elevations).

x Community building and pool.

x Park area with an existing pond.

The Preliminary Site Plan along with architectural elevations showing proposed façades

are included with this memorandum on pages 23 -25.

Parking

The site plan shows 318 parking spaces for the proposed multi-family development. Table

6-5-2 requires a minimum of 206 spaces based on number of bedrooms.

Sidewalks

A sidewalk is shown along the parcel fronting on N. Main Street. This sidewalk connects

N. Main Street to all buildings within the development.

Return to Agenda

CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 4

Stormwater

The applicant will be providing stormwater management plans to the Engineering

Department as part of the final site plan submittal requirements.

Traffic Impact Analysis (Section 6-19)

A Traffic Impact Analysis (TIA) was completed for this project. The TIA was reviewed by

Kimley-Horn, Hendersonville’s traffic consultant. The TIA was based on 206 multi-family

units, 28,300 ft

Medical Office and 24,000 ft

retail. Based on the Institute of

Transportation Engineers Trip Generation manual, the Traffic Impact Analysis estimated

a total of 3,339 weekday trips with 228 trips entering and exiting the site during the AM

peak hour and 341 trips entering and exiting the site during the PM peak hour. For the

multi-family phase of the project, the TIA indicated 1,372 weekday trips.

Note an amended Traffic Impact Analysis may be required when the preliminary plans for

the commercial / office Phases 4 and 5 are submitted.

The Traffic Impact Analysis identified that the “following proposed improvements should

be sufficient to accommodate the traffic generated by the proposed development:”

1. Provide a two-lane cross-section consisting of one ingress lane and one egress

lane for the proposed site access.

2. Construct an exclusive left turn lane into the proposed development on the

southbound approach of N. Main Street. Provide a minimum of 100 feet of full left

turn storage and appropriate deceleration and taper lengths.

Additionally, based on a NCDOT Turn Lane Warrant Study, NCDOT is requiring a tapered

right turn lane along N. Main Street which is controlled by NCDOT. This required right

turn lane is shown on the Preliminary Site Plan. NCDOT will need to review and approve

all improvements and connections to North Main Street.

Rezoning

The applicant is requesting a rezoning from City of Hendersonville UV Urban Village / R-

20 Low Density Residential to PCD Planned Commercial Development.

Building Height

The applicant is asking for the maximum building height allowed by Section 5-15-4.4

which is 48ʹ.

Density

The proposed project has a residential density of 14 units per acre. Section 5-15-4.6

Density states “the density for a residential development planned as part of a PCD

Planned Commercial Development district shall be established by City Council in

consideration of the Comprehensive Plan, surrounding land uses and the existence of

Return to Agenda

CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 5

adequate private and public facilities, including, without limitation, water, wastewater,

solid waste, stormwater, roads and parks, to serve the development.

A density bonus over and above the maximum may be approved by City Council only

upon determining that the proposed development complies with the general

considerations in the above paragraph and the following additional considerations.

Otherwise, the density authorized for the district shall not exceed ten units per acre. The

density bonus standards are as follows:

a) The property on which the development is proposed to be situated shall be located

in close proximity to a thoroughfare designated as such in the Comprehensive

Transportation Plan;

Access to the development is via North Main Street which is designated as

a Minor Thoroughfare in the Comprehensive Transportation Plan.

b) Vehicular access for such development shall be limited to one or more boulevards

or thoroughfares designated as such in the Comprehensive Transportation Plan.

See “a” above.

c) The carrying capacity of the roadway shall be adequate to handle increased traffic

associated with the development without reducing the level of service of such

roadway.

The Traffic Impact Analysis identified that the “following proposed

improvements should be sufficient to accommodate the traffic generated by

the proposed development:”

1. Provide a two-lane cross-section consisting of one ingress lane and one

egress lane for the proposed site access.

2. Construct an exclusive left turn lane into the proposed development on

the southbound approach of N. Main Street. Provide a minimum of 100

feet of full left turn storage and appropriate deceleration and taper

lengths.

Based on a NCDOT Turn Lane Warrant Study, NCDOT is requiring a tapered

right turn lane.

d) The development is proposed to be located within reasonable walking distance of

places of employment and/or shopping facilities and shall provide pedestrian

amenities in order to foster pedestrian access to such facilities.

Pedestrian connections to places of employment and /or shopping facilities

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CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 6

do not exist.

The site is approximately 2,796 linear feet (1/2 mile) from the intersection of

Duncan Hill Road and Dermid Avenue where continuous sidewalk exists. The

site is approximately 2,727 linear feet (1/2 mile) from the intersection of North

Main Street, the Watco railroad crossing, the Oklawaha Greenway and

continuous sidewalk through the Hyman Heights Historic District.

Based on the Planning Board recommendation to approve a density bonus

subject to conditions as negotiated between staff and the applicant, staff has

added the following condition for consideration to the published List of Uses

and Conditions:

Provide a pedestrian connection approved by City of Hendersonville

staff from the site along Baldwin Avenue and Duncan Hill Road to the

intersection of Duncan Hill Road and Dermid Avenue or from the site

along North Main Street to the intersection of North Main Street and

the Watco railroad crossing in order to increase the density from 10

units per acre to 14 units per acre. Off-site pedestrian infrastructure is

required to be in place when Phase 3 construction begins.

Luther Smith has requested that off-site pedestrian improvements not be

required to be completed until the project exceeds 10 units per acre. The site

plan reviewed by the Planning Board has been modified to move one

building from Phase 2 to Phase 3. With this revision, the completion of

Phases 1 & 2 will result in an overall density of 9.7 units per acre.

Any density authorized by City Council pursuant to this section shall not

exceed 18 dwelling units per acre. The applicant is requesting a density of

14 units per acre.

The following page includes a map showing the location of the project and

the proximity to places of employment and / or shopping facilities on Four

Seasons Boulevard and Asheville Highway, along with existing sidewalks

which are highlighted in yellow.

Return to Agenda

CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 7

e) The development shall provide common open space sufficient for the needs of its

residents, which shall not be less than the greater of the common open space

required by Section 6-16-2, below, or 1% of the land area of the development for

each dwelling unit per acre proposed.

The common open space requirement for Phases 1 - 3 is 2.36 acres. One

percent of the land area of the development for each dwelling unit per acre

is 1.96 acres. The preliminary site plan shows 6.42 acres designated as

Common Open Space. Common open space is defined as land that is

available for the enjoyment of residents of a residential development

meeting the recreational needs of residents along with reducing stormwater

runoff and enhancing air quality.

Fire Access

NC Fire Code Section D106.2 Projects having more than 200 dwelling units.

“Multiple-family residential projects having more than 200 dwelling units shall be provided

with two separate and approved fire apparatus access roads regardless of whether they

Return to Agenda

CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 8

are equipped with an approved automatic sprinkler system.” The Preliminary Site Plan

has a label stating “Future Emergency Access.” As per the applicant “Final plans will

address all elements of the NC Fire Code including Section D106.2.” This requirement is

included in the published List of Uses and Conditions.

100 Year Floodplain and Floodway

The applicant is not proposing any building development in this area and the area which

includes Mud Creek and Bat Fork Creek is set aside as Common Open Space. This area

also includes the 30 foot required stream buffer and 20 foot transitional area. Refer to

page 20 for a map showing the 100 Year Floodplain and the Floodway.

Annexation

The applicant is required to annex PIN 9569-85-3434 and PIN 9569-83-4918. This

annexation requirement is listed on the published List of Uses and Conditions and shall

be completed prior to issuance of Final Site Plan approval.

ANALYSIS

Section 7-4-10.1 of the Zoning Ordinance states, “no special use permit shall be approved

by City Council unless each of the following findings is made.”

(A) The use or development is located, designed, and proposed to be operated so as

to maintain or promote the public health, safety, and general welfare.

NC Fire Code Section D106.2 Projects having more than 200 dwelling units.

“Multiple-family residential projects having more than 200 dwelling units

shall be provided with two separate and approved fire apparatus access

roads regardless of whether they are equipped with an approved automatic

sprinkler system.” The Preliminary Site Plan has a label stating “Future

Emergency Access. As per the applicant “Final plans will address all

elements of the NC Fire Code including Section D106.2.” This requirement

has been added to the published List of Uses and Conditions.

(B) There are, or will be at the time they are required, adequate public facilities to serve

the use or development as specified in Section 7-11.

Water and sewer service is intended to be extended to the site.

The development site access for Phases 1 – 3 will be via N. Main Street.

Based on the TIA and NCDOT recommendations, the Preliminary Site Plan

shows the following:

The site access road includes one lane of ingress and two lanes of egress

(one right turn lane and one left turn lane).

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CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 9

An exclusive left turn lane into the proposed development on the

southbound approach of N. Main Street with a 100 feet of full left turn storage

and an approximately 82 foot deceleration taper.

A 236 foot right turn taper into the proposed development on the northbound

approach on N. Main Street.

the Zoning Ordinance or with variances thereto, if any, granted pursuant to Section

7-4-14, and with all other applicable regulations.

No variances are requested.

(D) The use or development is located, designed, and proposed to be operated so as

to be compatible with the particular neighborhood in which it is to be located.

A neighborhood compatibility meeting concerning the application was held

on July 16, 2015. Notice was provided by U.S. mail to the owners of record

of all property situated within 400 feet of the subject property as required by

Section 7-4-4.1 of the Zoning Ordinance.

Approximately 12 people representing the general public attended the

meeting. The public raised concerns about the following:

x Road improvements on N. Main Street

x Heavy trucks on N. Main Street

x N. Main Street is dangerous

A copy of the neighborhood compatibility report accompanies this

memorandum.

(E) The use or development conforms to the general plans for the physical

development of the City as embodied in this Ordinance and in the Comprehensive

Plan and the Comprehensive Transportation Plan.

The 2030 Comprehensive Plan’s Medium Intensity Neighborhood

classification is intended to “provide a transition between High and Low-

Intensity Neighborhood areas, while providing a wide range of housing

formats and price points. Promote walkable neighborhood design that

creates attractive and functional roadway corridors and multi-family

residential neighborhoods.”

The 2030 Comprehensive Plan’s Natural Resource/Agricultural classification

is intended to “create an interconnected network of green infrastructure that

preserves environmentally sensitive areas, protects water resources

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EASTSIDE MEADOWS

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PAGE 10

through low-impact stormwater management, provides floodwater storage,

provides community open space and recreational opportunities, and

preserves agricultural resources.”

No development is intended for the locations that are classified as Natural

Resource/Agricultural.

The Comprehensive Transportation Plan does not indicate any

improvements to N. Main Street at this time.

TREE BOARD

On August 4, 2015, the Tree Board reviewed a tree survey provided by the applicant. The

tree board was fine with the plans as presented and had the following requests: The final

landscaping plan be forwarded to the Tree Board and that the applicant consider using

pollinator friendly species.

PLANNING BOARD

The Planning Board took this matter up at its regular meeting of October 12, 2015. The

Planning Board voted unanimously to the following:

#1 Recommend City Council approve a density bonus as per Section 5-14-6 from a

maximum of 10 units per acre to a maximum of 14 units per acre subject to conditions as

negotiated between staff and the applicant.

#2 Recommend City Council adopt an ordinance amending the official zoning map of

the City of Hendersonville changing the zoning designation of:

PIN 9569-85-3434 from R-20 Low Density Residential to PCD Planned Commercial

Development, and, PIN’s 9569-85-8979, 9569-85-7172 and 9569-83-4918 from UV

Urban Village to PCD Planned Commercial Development finding that the rezoning is

consistent with the Comprehensive Plan, the rezoning is reasonable and in the public

interest because this does serve the property as the best use for this area.

#3 Recommend City Council approve the application of Hickory Land Fund LLC for a

Special Use Permit based on the site plan for Phases 1 – 3 submitted by the applicant

and subject to the limitations and conditions stipulated on the published List of Uses and

Conditions.

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PAGE 11

SUGGESTED MOTIONS

#1 – Density Bonus

Approval:

I move City Council to approve a density bonus as per Section 5-14-6 from a maximum

of 10 units per acre to a maximum of 14 units per acre subject to the condition listed in

the published List of Uses and Conditions.

Denial:

I move City Council to not approve a density bonus as per Section 5-14-6 from a

maximum of 10 units per acre to a maximum of 14 units per acre.

#2 – Rezoning Request

Approval:

I move City Council to adopt an ordinance amending the official zoning map of the City of

Hendersonville changing the zoning designation of:

PIN 9569-85-3434 from R-20 Low Density Residential to PCD Planned Commercial

Development, and,

PIN #’s 9569-85-8979, 9569-85-7172 and 9569-83-4918 from UV Urban Village to

PCD Planned Commercial Development finding that the rezoning is consistent with

the Comprehensive Plan, the rezoning is reasonable and in the public interest for the

following reasons: [

PLEASE STATE YOUR REASONS]

Denial:

I move City Council to not adopt an ordinance amending the official zoning map of the

City of Hendersonville.

#3 – Special Use Permit

Approval:

I further move City Council to approve the application of Hickory Land Fund LLC for a

Special Use Permit based on the site plan for Phases 1 – 3 submitted by the applicant

and subject to the limitations and conditions stipulated on the published List of Uses and

Conditions.

[

ADD, IF APPLICABLE, “AND THE FOLLOWING ADDITIONAL CONDITIONS”]

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PAGE 12

Denial: I move the Planning Board to recommend City Council not approve the

application of Hickory Land Fund LLC for rezoning and issuance of a special use permit.

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EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 13

IN RE: Eastside Meadows (P15-29-SUR)

List of Uses & Conditions

I. Stipulated Uses:

Only the following uses are authorized for Phase 1 – 3 of the referenced

development:

Residential Dwellings, Multi-family

Accessory Uses & Structures

Parks

II. Conditions:

(1) Shall Be Attached to the Special Use Permit and Satisfied Prior to

Issuance of Final Site Plan Approval:

A sealed survey of all parcels include in this Special Use permit application.

Annexation of PIN 9569-85-3434 and PIN 9569-83-4918 as reflected on the

Preliminary Site Plan.

Recombination of PIN 9569-85-3434, PIN 9569-85-7172, and PIN 9569-83-

4918 as reflected on the Preliminary Site Plan.

Provide a pedestrian connection approved by City of Hendersonville staff

from the site along Baldwin Avenue and Duncan Hill Road to the

intersection of Duncan Hill Road and Dermid Avenue or from the site along

North Main Street to the intersection of North Main Street and the Watco

railroad crossing in order to increase the density from 10 units per acre to

14 units per acre. Off-site pedestrian infrastructure is required to be in place

when Phase 3 project construction begins.

Final site plan shall satisfy NC Fire Code Section D106.2 which states

“Multiple-family residential projects having more than 200 dwelling units

shall be provided with two separate and approved fire apparatus access

roads regardless of whether they are equipped with an approved automatic

sprinkler system.”

(2) Shall Be Attached to the Special Use Permit:

Final plans for the project shall comply with approved plans, the conditions

agreed to on the record of this proceeding and applicable provisions of the

Zoning Ordinance.

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PAGE 14

Eastside Meadows

Signature:

Printed Name:

Date:

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CITY COUNCIL

EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 15

AN ORDINANCE AMENDING THE OFFICIAL ZONING MAP

OF THE CITY OF HENDERSONVILLE

IN RE: Eastside Meadows

(File # P15-29-SUR)

Be it ordained by the City Council of the City of Hendersonville:

1. Pursuant to Article XI of the Zoning Ordinance of the City of Hendersonville,

North Carolina, the Zoning Map is hereby amended by changing the zoning

designation of the following:

Rezone PIN 9569-85-3434 from R-20 Low Density Residential to PCD

Planned Commercial Development.

Rezone PIN’s 9569-85-8979, 9569-85-7172 and 9569-83-4918 from UV

Urban Village to PCD Planned Commercial Development.

2. This ordinance shall be in full force and effect from and after the date of its

adoption.

Adopted this 5

day of November 2015.

Barbara Volk, Mayor

ATTEST:

Tammie K. Drake, CMC, City Clerk

Approved as to form:

Samuel H. Fritschner, City Attorney

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EASTSIDE MEADOWS

NOVEMBER 5, 2015

PAGE 16

Planning Director’s Report

Neighborhood Compatibility Meeting

Application for a Special Use Permit and Rezoning

Eastside Meadows File # P15-29-SUR

Thursday July 16, 2015 1:30 p.m.

Sue Anderson, Planning Director, convened the compatibility meeting at 1:30 pm in the

Assembly Room of the City Operations Center. The following were in attendance:

Name

Address

Name

Address

Luther Smith

(applicanat)

129 3

Avenue W

Gaston Campano

(applicant)

Hickory Realty Fund

Larason Lambert

56 Fernhaven Pl

Wanda King Sluder

Duncan Hill Road

Linda King Sluder

Duncan Hill Road

Helen Stansell

17 Aiken Place

Jere Hyder

1500 N Main

Jim Sullenberger

142 Pinehurst Drive

David Talburt

110 Berkeley Road

Philip Carnes

104 Berkeley Road

Tommy Fair

1830 N Main

Stan Duncan

200 N. Grove St

Nick Mazzarella

200 N. Grove

Derek Lacey

Times-News

Don Daines

HAC

Tom Jacobson

1250 Craly Creek

Bill Moss

H’ville Lightning

Sue Anderson

City Hall

David Hazzard

City Hall

Lu Ann Welter

City Hall

Ms. Anderson opened the meeting explaining this is the first step in a three step

process. Minutes of this meeting will be forwarded to Planning Board and City Council.

She said this item could be heard at the August 10 Planning Board meeting and a public

hearing held on September 3.

Luther Smith, landscape architect, said he is representing the applicant, Hickory Land

Fund on this proposed project. He said there are two parts to this project; the rezoning

of the land to PCD, Planning Commercial Development, and a development plan for

commercial and residential use. The zoning of PCD will allow residential uses on the

land as well a commercial. There is approximately 20 acres in this project and they are

proposing to have commercial near the front along N. Main and Baldwin Hill Road and

residential away of the roads. Mr. Smith said this project will be to the east of the

recently approved Oklawaha Village. There is a small lake on the property. He said

there will be a maximum of 206 one, two and three bedroom apartments. He said there

will be 31% open space and 38% common open space, which will include a clubhouse,

pool and playground. They will exceed the number of parking spaces required and there

will be gated entry.

Ms. Anderson said the applicant will be required to do a Traffic Impact Analysis and a

stormwater management plan. She also said this is a phased project so when the

applicant comes back with the commercial component of the project, they will go back

thru this meeting process.

Jim Sullenberger said there are a lot of accidents at N. Main and Baldwin and this may

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PAGE 17

be a chance to improve that area. Helen Stansell agreed the traffic on N. Main is terrible

and there are a lot of trucks. Ms. Anderson added these roads are controlled by NCDOT

so they will have to approve any changes to the roads. Larason Lambert added the

roads around the triangle could be improved.

A question was asked about the Clear Creek Connector to I-26. Ms. Anderson there are

no plans for such a connector but of one further to the north. Tommy Fair asked about

the dirt road that runs by the lake. Mr. Smith said it doesn’t really come on to this

property so they will not be using it.

With no further comments or questions, Ms. Anderson closed the meeting at 1:55.

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APPEAL OF DEVELOPMENT DECISIONS

Section 7-13 of the Zoning Ordinance outlines the process for appeal of development

decisions by City Council. The following Sections of the Zoning Ordinance apply

specifically to Special Use Review:

Section 7-13-2 (b): Preliminary site plans. Decisions of the City Council regarding

appeals from development decisions concerning applications for preliminary site plan

approval may be appealed to the Superior Court by any aggrieved party. Such

appeals shall be in the nature of certiorari and must be filed within 30 days after the

filing of the decision in the office of the City Clerk or after a written copy thereof is

delivered to every aggrieved party who has filed a written request for such copy with

the Clerk at the time of the hearing, whichever is later. The copy of the decision of the

Council may be delivered to aggrieved parties either by personal service for by

registered mail or certified mail return receipt requested.

Section 7-13-2 (d): Special use review. Judicial review of decisions regarding

applications processed under the provisions of special use review, established in

Section 7-4, above, require special treatment due to the fact that they involve two

separate applications which, though processed simultaneously, require Council to

make two separate decisions exercising two different types of decision-making

authority. One application requests enactment of an ordinance amending the Official

Zoning Map, and the other requests issuance of a special use permit. The first

application involves a legislative decision on the part of Council, and the second a

quasi-judicial decision. The quasi-judicial decision, that is, the one concerning the

application for a special use permit, may be appealed to the Superior Court by any

aggrieved party in the manner prescribed in paragraph b), above. Such appeal shall

be in the nature of certiorari. The legislative decision, which is the one concerning the

request for rezoning, may be contested, in accordance with NCGS Section 160A-

364.1, by a cause of action commenced within two months of the date of the decision.

The validity of the ordinance may be challenged in accordance with North Carolina

General Statute Section 160A-364.1.

§ 160A-364.1. Statute of limitations.

A cause of action as to the validity of any zoning ordinance, or amendment thereto,

adopted under this Article or other applicable law shall accrue upon adoption of the

ordinance, or amendment thereto, and shall be brought within two months

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Council Action

09a

Councilman Jerry Smith has requested that the City Council amend City Code Section 36-87 to read as follows:

Sec. 36-87. - Weapons on city-owned or city-maintained property.

(a) Prohibited acts. Except as provided in subsection (b) of this section, all persons are prohibited from possessing

firearms as defined in N.C.G.S. § 14-409.39 in public-owned buildings, on the grounds or parking areas of those buildings,

or in public parks or recreation areas. Nothing in this article shall prohibit a person from storing a firearm within a motor

vehicle while the vehicle is on these grounds or areas. Nothing contained in this article prohibits the City from exercising

powers provided by law in states of emergency declared under Chapter 36 Article V Division 2 of this Code of Ordinance.

N/A

I move that the City Council amend Section 36-87 of the Hendersonville City Code to prohibit the posession of firearms in

public buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas.

Proposed Amendment

Return to Agenda

Sec. 36-87. - Weapons on city-owned or city-maintained property.

(a) Prohibited acts. Except as provided in subsection (b) of this section, all persons are prohibited

from possessing concealed handguns as defined in G.S. 14-269 firearms as defined in N.C.G.S.

§ 14-409.39 in city owned and/or maintained nonresidential buildings and property as defined in

G.S. 14-54(C), their appurtenant premises and parks public-owned buildings, on the grounds or

parking areas of those buildings, or in public parks or recreation areas. Nothing in this article

shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these

grounds or areas. Nothing contained in this article prohibits the City from exercising powers

provided by law in states of emergency declared under Chapter 36 Article V Division 2 of this

Code of Ordinance.

(b) Exceptions. This prohibition of subsection (a) of this section shall not apply to the following

persons:

(1) Officers and enlisted personnel of the armed forces of the United States when

discharging their official duties as such and acting under orders requiring them to carry

arms and weapons;

(2) Civil officers of the United States while in the discharge of their official duties;

(3) Officers and soldiers of the militia and the national guard when called into actual

service;

(4) Sworn law enforcement officers;

(5) County animal control officers while in the discharge of their official duties as such

and acting under orders requiring them to carry arms and weapons;

(6) Employees of the city, a utility company, or a contractor to the city, may possess tools

approved by their employer so long as such tools are not used as a weapon; and

(7) Persons possessing a written permit from the chief of police to possess weapons for

ceremonial purposes or funerals.

subsection (a) of this section indicating that: "Possession of concealed weapons or carrying a

concealed handgun is prohibited." This indication may be given by use of the attached symbol or

any other symbol decided upon by the city council.

(d) Penalty for violation of section. Any person in violation of this section shall be guilty of a

misdemeanor and, upon conviction, shall be punished according to the provisions of section 1-6.

(e) Violating weapons declared contraband. Weapons possessed in violation of this section are

hereby declared to be contraband. The chief of police or his designee shall hold such weapon for

disposal pursuant to court order. In the absence of any such court order, the weapon shall be

destroyed.

Return to Agenda

The ordinance as amended would read:

Sec. 36-87. - Weapons on city-owned or city-maintained property.

(a) Prohibited acts. Except as provided in subsection (b) of this section, all persons are prohibited

from possessing firearms as defined in N.C.G.S. § 14-409.39 public-owned buildings, on the

grounds or parking areas of those buildings, or in public parks or recreation areas. Nothing in this

article shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is

on these grounds or areas. Nothing contained in this article prohibits the City from exercising

powers provided by law in states of emergency declared under Chapter 36 Article V Division 2

of this Code of Ordinance.

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Council Action

09b

The following amendment to the City Code was approved on a 3-2 vote during the October 1, 2015 City Council meeting.

Therefore a second vote is required to amend Code Section 36-87 respecting weapons on City-owned or City-maintained

property.

The existing sections restricts the carrying of concealed handguns. The proposed amendment would create an exception

for City Council members.

N/A

I move the City Council adopt the ordinance amending the carrying of certain weapons on City-owned or City-maintained

property.

Proposed ordinance

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Ordinance #15-____

AN ORDINANCE AMENDING SECTION 36-87 OF THE CODE OF ORDINANCES RESPECTING

WEAPONS ON CITY-OWNED OR CITY-MAINTAINED PROPERTY

WHEREAS, the City of Hendersonville City Council has, pursuant to statute, determined who should be

permitted to carry certain weapons on City-owned and City-maintained property, and

WHEREAS the City Council deems it desirable to add City Council members to the list of those excepted

from the restrictions contained in City Code Section 36-87,

NOW, THEREFORE, be it ordained by the City Council of the City of Hendersonville:

SECTION 1. Section 36-87 of the Hendersonville Code of is hereby amended to read as follows

Sec. 36-87. - Weapons on city-owned or city-maintained property.

(a) Prohibited acts. Except as provided in subsection (b) of this section, all persons are

prohibited from possessing concealed handguns as defined in G.S. 14-269 in city owned

and/or maintained nonresidential buildings and property as defined in G.S. 14-54(C),

their appurtenant premises and parks.

(b) Exceptions. This prohibition of subsection (a) of this section shall not apply to the

following persons:

(1) Officers and enlisted personnel of the armed forces of the United States when

discharging their official duties as such and acting under orders requiring them to

carry arms and weapons;

(2) Civil officers of the United States while in the discharge of their official duties;

(3) Officers and soldiers of the militia and the national guard when called into

actual service;

(4) Sworn law enforcement officers;

(5) County animal control officers while in the discharge of their official duties as

such and acting under orders requiring them to carry arms and weapons;

(6) Employees of the city, a utility company, or a contractor to the city, may

possess tools approved by their employer so long as such tools are not used as a

weapon; and

(7) Persons possessing a written permit from the chief of police to possess

weapons for ceremonial purposes or funerals.

(8) City Council members with a valid North Carolina Concealed Carry Permit.

Return to Agenda

forth in subsection (a) of this section indicating that: "Possession of concealed weapons

or carrying a concealed handgun is prohibited." This indication may be given by use of

the attached symbol or any other symbol decided upon by the city council.

(d) Penalty for violation of section. Any person in violation of this section shall be guilty of

a misdemeanor and, upon conviction, shall be punished according to the provisions of

section 1-6.

(e) Violating weapons declared contraband. Weapons possessed in violation of this

section are hereby declared to be contraband. The chief of police or his designee shall

hold such weapon for disposal pursuant to court order. In the absence of any such court

order, the weapon shall be destroyed

SECTION 2. SEVERABILITY. If any provision of this ordinance is for any reason held by a court of

competent jurisdiction to be unconstitutional or invalid, such decision shall not affect the validity

of the remaining provisions of this ordinance.

SECTION 3. EFFECTIVE DATE. This ordinance shall be in full force and effect from and after the

date of its adoption.

Adopted this first day of October 2015.

_____________________________________

Barbara Volk, Mayor

Attest:

_____________________________________

Tammie K. Drake, MMC, City Clerk

Approved as to form:

_____________________________________

Samuel H. Fritschner, City Attorney

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Council Action

City Staff recommends the engagement of the UNC School Government Developmental Finance Initiative to oversee the

pre-development process to attract private hotel and retail investment, minimize public expense and further the City's

community and economic development goals in and around Downtown Hendersonville. This project will be in partnership

with the Henderson County Tourism Development Authority with the ultimate goal of attracting a downtown hotel with

conference and meeting facilities. In addition, the City of Hendersonville would expect a parking deck with a minimum of

300 parking spaces be constructed to replace any lost parking as a result of this project. The pre-development process will

take up to twelve months and include a market study, public input process and financial analyst.

52,000

A budget amendment will be prepared for $27,000 for the completion of this work. The additional $25,000 will be funded

by the Henderson County Tourism Development Authority.

I move that the City Council approve the proposal to engage the UNC School of Government to assist us in the

completion of pre-development research, analysis and schematic design for a hotel with meeting facilities, retail space

and parking structure on the Dogwood Parking Lot.

DFI Proposal

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/26/2015

John Connet

11/05/2015

Discussion/Staff Direction

We have received a request from G.A. Pope Fine Jewelry and Fashion Sense, located in the Azalea Parking Lot, to

designate four parking spaces in front of their businesses as free thirty minute minute parking. Councilman Jerry Smith

requested that this item be placed on the agenda for discussion by the City Council.

< $500.00

N/A

I move that the City Council establish four free 30 minute parking spaces in the Azalea Parking Lot directly in front of G.A.

Pope Jewelry and Fashion Sense.

Letter from G.A. Pope and Fashion Sense

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Sue Anderson, Planning Director

Development Asst Dept

October 15, 2015

Dave Hazzard

November 5, 2015

Council Action

14a

File # P15-4-M

The City of Hendersonville has received a NCDOT Bicycle Planning Grant and City Council has budgeted $5,000 toward

the match for the grant. Blue Ridge Bicycle Club will be donating $10,000 towards the City's required 30% match. Total

amount for the study is approximately $50,000. The Request for Proposals (RFP) were advertised starting September

29th and are due by October 30th.

As part of the process, City Council will need to appoint a Selection Committee to review proposals, interview consultants

and recommend a consultant to City Council. Planning Director Sue Anderson will serve as Project Manager and staff

support to the committee. Additionally, at some point in the future, once a consultant is selected and a contract is signed,

City Council will need to also appoint a Steering Committee.

Staff is recommending three to four people serve on the Selection Committee and that at a minimum, one Council

Member and Joe Sanders of the Blue Ridge Bicycle Club be selected for the Committee. Representation from the Blue

Ridge Bicycle Club is requested since they are donating $10,000 to the project. Staff is anticipating the Selection

Committee will meet two times. One meeting to jointly review the RFP's and one meeting to conduct interviews if desired.

5,000

Yes

I move to appoint the following to serve on the NCDOT Bicycle Planning Grant Selection Committee:

Return to Agenda

CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

Tammie Drake

dmin

10.14.15

Tammie Drake

11/05/15

Council Action

14b

ENVIRONMENTAL SUSTAINABILITY BOARD: The terms of Steven Orr and David Rhode expired at the end of

September. Both members would like to continue serving. Both reside outside the City and are appointed for their

particular areas of expertise. There are five City resident positions and two of those are vacant.

PLANNING BOARD: The term of Ben Pace will expire December 1, 2015. Mr. Pace wold like to be considered for

reappointment. We do not have any other applications at this time.

TREE BOARD: Two members on the Tree Board, David Wilson and Alex Rodriquez, were unable to attend the required

number of meetings as specified in Section 46-147 of the Code of Ordinances thereby creating two vacancies. You have

received an application from Mia Freeman to serve on the Tree Board.

Announcements/Upcoming Appointments:

Tree Board: The terms of two members on the Tree Board will expire in February: Ben Pace and Richard Baxter.

Consideration of these appointments will be on your January 2016 agenda.

n/a

N/A

i nominate ... for a two-year term on the Environmental Sustainability Board. This term will expire 09-01-17.

I nominate ... for a three-year term on the Planning Board. This term will expire 12-01-18.

I nominate ... to fill an unexpired term on the Tree Board. This term will expire 02-01-18.

board membership lists, applications

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CITY OF HENDERSONVILLE

AGENDA ITEM SUMMARY

Submitted By: Department:

Date Submitted: Presenter:

Date of Council Meeting to consider this item:

Nature of Item:

Summary of Information/Request: Item #

Budget Impact: $____________________ Is this expenditure approved in the current fiscal year

budget? If no, describe how it will be funded.

Suggested Motion: To disapprove any item, you may allow it to fail for lack of a motion.

Attachments:

John Connet

dmin

10/28/2015

John Connet

11/05/2015

Discussion/Staff Direction

City Manager John Connet requests a closed session in accordance with NCGS 143-318.11(a) (5) to establish or instruct

the staff concerning the position to be taken by or on behalf of the City Council on negotiating for the acquisition of real

property identified as Henderson County parcel 9936563 for the purpose of operating a sewage package plant.

TBD

N/A

I move that the City Council enter closed session in accordance with 143-318.11 (11)(5) to establish or instruct he staff

concerning the position to be taken by or on behalf of the City Council on negotiating for the acquisition of real property.

None

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CITY OF HENDERSONVILLE CITY COUNCIL REGULAR MEETING N (City of Hendersonville)

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