Agenda Item 14
June 28, 2016
Public Hearing-Action
MEMORANDUM
June 24, 2016
TO:
FROM:
County Council
Robert H. Drummer, Senior Legislative Attorney
~
SUBJECT:
Public Hearing-Action:
Expedited Bill 22-16, Sligo Creek Holdings, LLC, ­
"The Siena School" - Lease Amendment
Expedited Bill 22-16, Sligo Creek Holdings, LLC, - "The Siena School" - Lease
Amendment, sponsored by Lead Sponsor Council President Floreen at the request of the
Maryland-National Capital Park and Planning Commission, was introduced on June 14, 2016.
Action is scheduled following the public hearing.
Bi1l22-16 would approve an amendment to a lease between the Maryland-National Capital
Park and Planning Commission (M-NCPPC) and Sligo Creek Holdings, LLC, a Maryland limited
liability company, d/b/a The Siena School, for certain land in Sligo Creek Stream Valley Unit #4
(Siena School). The M-NCPPC leased 1.47 acres of park land to the Siena School on July 29,
2011. (©11-30) The lease was amended on May 30,2012 (©31-36) and June 29, 2012 (©37-50),
and currently expires on June 29,2032. The leased property is being used for school staff parking,
student drop-off, and busses
in
conjunction with the adjacent improved property owned by the
Siena School. The special exception permitting the operation of a private school on the Siena
School property is at ©SI-60. The Siena School requested a lease amendment to add 4 years to
the term of the lease to support a 20-year loan the school is seeking to obtain for capital
improvements. Director of Parks Mike Riley explained the details in his May 31 transmittal
memorandum at ©9-1
O.
The Montgomery County Planning Board resolution approving the lease
amendment, subject to Council approval, is at ©61.
MD Code, Land Use, §17-204(a)(2)(i) contains the following restriction on a lease of
property by the M-NCPPC:
The term ofa lease may not exceed 20 years without the prior approval ofthe lease
by legislative enactment of the county where the lease property is located.
The proposed lease amendment would extend the term of the lease to more than 20 years.
Expedited Bill 22-16 would approve this proposed lease amendment.
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This packet contains:
Expedited Bill 22-16
Legislative Request Report
May 31 Transmittal Memorandum
July 29,2011 Lease
May 30, 2012 Lease Amendment
June 29, 2012 Lease Amendment
Special Exception
Planning Board Resolution
Circle
#
1
8
9
II
31
37
51
61
F:\LA W\BILLS\1622 Lease Amendment - Sienna School\PH-Action Memo.Docx
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Expedited Bill No.
22~16
Concerning: Sligo Creek Holdings, LLC,
~
"The Siena School"
~
Lease
Amendment
1
Revised: May 31,2016 Draft No.
Introduced:
June 14, 2016
Expires:
December 14. 2017
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
...!N..:..lo~n:.::::.e
_ _ _ _ __
Ch. _ _ Laws of Mont. Co. _ __
I
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
Lead Sponsor: Council President at the request of the Maryland-National Capital Park
and Planning Commission
AN EXPEDITED ACT
to approve amendments to a certain ground lease between the
Maryland-National Capital Park and Planning Commission and Sligo Creek Holdings, LLC, a
Maryland limited liability company, d/b/a The Siena School, for certain land in Sligo Creek Stream
Valley Unit #4.
By adding to
Laws of Montgomery County 2016
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law
by
original
bill.
Deletedfrom existing law by original bill.
Added
by
amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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EXPEDITED
BILL
No. 22-16
1
2
3
4
Sec. 1.
Lease Approval.
As required by MD Code, Land Use, § 17­
204, the Council hereby approves the attached amendments to the ground lease for
a period longer than 20 years between the Maryland-National Capital Park and
Planning Commission and Sligo Creek Holdings, LLC, a Maryland limited liability
company, doing business as "The Siena School," for certain land
in
Sligo Creek
Stream Valley Unit #4.
Sec. 2.
5
6
7
8
9
10
Expedited Effective Date.
The Council declares that this
legislation is necessary for the immediate protection of the public interest. This Act
takes effect on the date when it becomes law.
11
12
Approved:
Nancy Floreen, President, County Council
Date
13
Approved:
14
Isiah Leggett, County Executive
Date
15
16
This is a correct copy ofCouncil action.
Linda M. Lauer, Clerk of the Council
Date
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Contract No. 320135-003
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE (the "Amendment") is made by THE
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, a public
body corporate and agency of the State of Maryland (the "Commission"), and SLIGO CREEK
HOLDINGS, LLC, a Maryland limited liability company, doing business as "The Siena
School" (the "Lessee").
RECITALS:
A.
The Commission and Lessee entered into a Lease Agreement dated July 29,2011,
with an Addendum to Lease dated May 30, 20 12 (collectively, the "Agreement"), for Lessee's
use of approximately 1.47 acres of Commission property as described in Attachment A ("Leased
Premises").
The Agreement has a term of20 years which commenced on June 29, 2012 and
expires on June 28,2032.
C.
Lessee is the owner ofimproved property located at 1300 Forest Glen Road,
Silver Spring, Maryland (the "School"), which is adjacent to the Leased Premises. A portion of
the Leased Premises is used for parking by Lessee's school staff, student drop-off, and buses.
D.
Lessee
is
in
the process of securing a 20-year bank loan ("Loan") for the
construction of a new addition to the School. A condition of Lessee securing the Loan,
scheduled to close on May 24,2016, among others, is that Lessee's Agreement with the
Commission must remain in effect during the 20-year loan period, in order that the Loan term
and the lease term run concurrent! y for the same period. The Agreement current!y has 16 years
remaining on the lease term.
E.
To meet the foregoing Loan condition, Lessee made a request to the Commission
on April 25, 2016, to modify the Agreement to add four additional years to the lease term, so the
Agreement expires 20 years after the effective date of the Loan.
B.
'.
F.
The Commission is willing to grant Lessee the term modification pursuant to the
terms and conditions herein.
G.
Pursuant
to
Land Use Article, Section 17-204(a)(2)«i), the Montgomery County
Council (the "Council") must, by legislative enactment, approve this Amendment as it will cause
the Agreement to exceed a 20-year duration.
NOW THEREFORE, for and in consideration ofthe respective covenants, promises and
agreements provided herein the Commission and the Lessee agree as follows:
1.
Incorporation of Recital.
Amendment by reference.
The above Recitals are incorporated into this
Page 1 of4
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Contract No. 320135-003
2.
Term and Rent. Section 3 ofthe Agreement is deleted in its entirety and replaced
with the following:
"3.
Term and Rent.
A.
Lease Term. Subject to Section
42
herein, this Lease shall commence on
the date that deed transferring title of the Siena School Property to Lessee is
executed and delivered (the "Lease Commencement Date"),
and
shall
terminate twenty-four
(24)
years thereafter, unless the Lease is terminated
earlier in accordance with the provisions of this Lease.
Rent. Lessee shall pay the Commission an annual rent of One Dollar and
No Cents ($1.00) ("Base Rent") each and every year for twenty (20) years
beginning on the Lease Commencement Date, payable annually in advance,
without notice or demand, on or before the anniversary of the Lease
Commencement Date. Thereafter, Lessee shall pay an annual rent each and
every year for four (4) years
as
defined in the Rent Table below, payable
annually in advance, without notice or demand, on or before the anniversary
ofthe Lease Commencement date.
B.
RENT
TABLE
Lease Year
Number
21
22
23
24
C.
Annual Rent
(in dollars)
$12,000
$12,480
$12,979
$13,498
Late Payment and Returned Check Charges.
If the Base
Rent
and/or
other payments due under the Lease is not received by the Commission by
the Fifth day from the date the Base Rent andlor such other payment is due,
the Lessee shall pay the Commission a late charge equal to 10% of any
amount then due. Payment of such late charge shall not excuse or waive the
late payment of the Base Rent andlor other payments due. If the Lessee
presents a check
to
the Commission that a bank returns unpaid, the
Commission may require the Lessee to make payment by certified check or
money order.
In
addition, the Lessee shall pay to the Commission a returned
check fee of $35.00 for each returned. check, plus any other fees, costs,
charges, and expenses incurred in collecting the payment
D.
Holdover.
In
the event Lessee fails to timely vacate and surrender the
Leased Premises to the Commission upon expiration or termination of the
Lease, Lessee shall pay $1,667 per month, or any prorated amount thereto,
to
the Commission as holdover rent for all holdover period until the
Commission regains possession ofthe Leased Premises.
In
the event
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Contract No. 320135-003
Lessee's holdover lasts longer than one year, there will be four percent
annual increase in the applicable holdover year from the preceding year's
holdover rent amount.
E.
Rent Payment Address. Subject to change by written notice from the
Commission, Lessee shall ma..1<e all payments to the Commission at:
Park Property Management
Montgomery County Department of Parks
Maryland-National Capital Park and Planning Commission
16641 Crabbs Branch Way
Rockville, MD 20855"
3.
Replacement
of
Attachment "A". Attachment "A" to the Lease is deleted and
replaced with the Attachment A attached to this Amendment.
4.
Administrative Requests. Lessee shall submit a wlltten request to Commission a
minimum of 30 days in advance for consent of, or for any Lease amendment, extension,
assignment, name change, loans, or other administrative processing, and include with such request
a non-refundable payment to the Commission for administrative costs in the amount of $2,500.
5.
Lessee Name. The Agreement is amended to reflect that the name of the Lessee
is Sligo Creek Holdings, LLC, a Maryland limited liability company, doing business as "The
Siena School", with the retroactive effect as ofJu1y 29,2011.
6.
Representation and Warranty. Lessee represents, warrants, and avers that Lessee
is, and has been, in compliance with all terms ofthe Agreement at all times relevant. Lessee further
represents and warrants that entering into this Amendment will not violate any material agreement
to which Lessee is a party.
7.
Prior Condition to Amendment. This Amendment is expressly conditioned upon
Lessee's obtaining Bank ofGeorgetown's prior written consent for entering into this Amendment,
in accordance with the requirements set forth in
that
certain Recognition Agreement dated June
29, 2012, entered into between the Commission and Bank of Georgetown, and Lessee agrees to
bear any costs associated with obtaining the foregoing approval from Bank of Georgetown.
8.·
Effective Date. The date of this Amendment shall be the last date written on the
signature page herein.
9.
No Other Changes. Except as modified in this Amendment, all other terms and
conditions of the Agreement remain the same.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Page 30f4
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Contract No. 320135-003
IN WITNESS WHEREOF,
the Commission and the Lessee have executed this
Amendment on the date written below.
ature)
Printed Name:
Title:
Lessee Fed ID
#
eft)
~4Pl~tit-1
~t
1
fcA
0'
J
14
3i
'1
~47
F:
THE MARYLAND-NATIONAL CAPITAL
PARK AND PL
G
SSION
ATTEST:
()v~
Date:
rJ
"---­
BY:)
Joseph Zimmerman,
Secretary-Treasurer
For:
Bank of Georgetown
Page 4 of4
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LEGISLATIVE REQUEST REPORT
Expedited Bill 22-16
Sligo Creek Holdings, LLC,
-
"The Siena School"
-
Lease Amendment
DESCRIPTION:
Approval of a four-year extension lease tenn, totaling a 24-year lease
tenn for M-NCPPC property
Maryland Code, Ann., Land Use Article, §17-204(a)(2)(i), requires
that M-NCPPC obtain Montgomery County Council's approval for
any lease with a tenn greater than 20 years.
Sligo Creek Holdings, LLC (Lessee) seeks to obtain a construction
loan. One of the conditions to this loan is having a 24-year total lease
tenn. M-NCPPC, as landlord, and Lessee desires to obtain County
Council's approval in order to meet the construction loan
requirements.
M-NCPPC, Park Property Management
To be requested.
To be requested.
To be requested.
To be researched.
M-NCPPC, Michelle Grace, Assistant Division Chief, 301-495-2467
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None.
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MONTGOMERY COUNTY IlE:PARTMENT OF
PARKS
Til F MARYLAN
D-NATIONI\I.
MEMORANDUM
DATE:
May 31,2016
Montgomery County Council
Mike Riley, Director of Parks
..)",. ,
fhlcl.A.4~
Jim Poore, Chief, Facilities Management Division
Michelle Grace, Assistant Division Chief, Facilities
Manage~;
Division
TO:
VIA:
FROM:
c..,
rt:----­
STAFF RECOMMENDATION:
Approval of Lease Amendment for Sligo Creek Holdings, LLC,
d/b/a The Siena School,
to
extend lease teoo for an additional 4 years with conditions.
BACKGROUND:
The Commission entered into a Lease Agreement with the Siena School dated July 29,2011,
with an Addendum
to
Lease dated May 30, 2012, for the School's use of approximately 1.47
acres of Park property as shown in the Lease Amendment "Attachment A - Leased Premises:'
The School is in the process of securing a 20-year bank loan for the construction of a new
addition to the School. A condition of the loan is that the School's Lease Agreement with the
Commission must remain in effect during the 20-year loan period. Currently, 16 years remain
under the original lease term.
In
a written request received on April 25, 2016, Siena School requested the Commission modify
the Agreement to expire twenty years after the effective date of the loan. The current Lease
Agreement has a term of twenty (20) years which commenced on June 29, 2012 and expires on
June 28, 2032.
The Commission desires to amend the lease and provide for an additional four (4) years to meet
the requirements of the loan. A Lease Amendment is attached for reference.
The Siena School is the owner of improved property located at 1300 Forest Glen Road, Silver
Spring, Maryland, which is adjacent to Park property. Foooeriy, the school site was owned by
the Boys and Girls Club, but was purchased by Siena School. A Special Exception to operate the
School in the R-60 zone and the School's acquisition each occurred in 2012.
A portion ofthe Leased Premises is used for parking by the School's staff, student drop-off and
buses during certain school hours and school days. hnprovements to the School property and
adjacent Park property were contemplated during the ]ease negotiations in 2012. Therefore, the
FACILITIES MANAGEMENT DIVISION
16641 Crabbs Branch Way, Rockville, MD 20855
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Lease provides that Siena School may improve the leased area and construct new parking areas,
stormwater management facilities, recreational fields, and landscaping. Additionally, Siena shall
provide improvements to the pedestrian access between the leased premises and the adjacent
Park such as roads, driveways, parking lots and stonnwater management facilities, recreational
fields, landscaping and access enhancements.
The Department of Parks is seeking County Council approval to grant Siena School the term
modification pursuant to the terms and conditions outlined in the Lease Amendment attached,
some of which are listed below.
1.
2.
3.
4.
Lessee's lender approval of lease amendment.
Rental payment for years 21-24.
Minor term revisions (late fee, holdover rent, administrative fee for future requests).
Revised Attachment
A.
Department of Park staff recommends County Council approval of this Lease Amendment via
legislative enactment.
Attachments:
Lease Amendment (with Attachment A - Leased Premises)
Existing Lease Agreement and Addendum; Recognition Agreement
Resolution 16-065
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'.
LEASE
THIS LEASE ("Lease") is made this :<qt'i day
of~,
2011, between THE
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, a public
body corporate (the "Commission"), 6611 Kenilworth Riverdale, Maryland 20737 and The
Siena School, or its designated affiliated entity ("Siena" or the "Lessee"), whose address is
9727 Georgia Avenue, Silver Spring, MD 20910.
RECITALS:
A.
The Commission is a public body corporate, created and existing under Article 28
ofthe Annotated Code of Maryland that is engaged. in performing governmental functions of
acquiring, developing, maintaining and operating public parks, facilities and recreation areas
within Montgomery County and Prince George's Counties, and, in such capacity, the
Commission is the fee simple owner of approximately 1.47 acres ofland located as shown on
Attachment A
(the "Leased Premises").
B.
The Lessee is the contract purchaser of a certain parcel of land identified on
Attachment A as ''Property ofBoys and Girls Club of Greater Washington, Parcell, Boys Club
of Silver Spring, Plat No. 5017, Liber 2584, Folio 308, Tax Map JP22, Parcel N458" (referred to
herein as the "Siena School Property").
C.
The Lessee intends to obtain a loan from a lender to make certain improvements
to the Siena School Property and the Leased Premises and in order to obtain said loan, enter into
a deed oftrust with a lender and pledge as security its fee interest in the Siena School Property as
well as the leaseho ld interest created by this Lease.
D.
The Lessee intends to seek a Special Exception ("Special Exception") to permit
the operation of an educational institution and other uses permitted under the Special Exception
on the Siena School Property and the Leased Premises.
E.
The Lessee intends to improve existing, construct new, or install driveways,
parking lots, stonnwater management facilities, recreational fields, and landscaping on the
Leased Premises and improve pedestrian access between the Leased Premises and the
Commission's adjacent park (such, roads, driveways, parking lots, stonnwater management
facilities, recreational fields, landscaping, and access enhancements hereinafter referred to as
"Improvements").
F.
The Lessee represents that it will fund the Improvements at the Lessee's sole
expense, construct them according to the Commission's standards, and maintain, repair, and
replace them all at the Lessee's sole expense and according to the practices ofthe Commission.
G.
The Commission
has
determined that the Lessee's obligations under this Lease
will fulfill public and park purposes by assisting in mitigating the adverse effects of stonn water
Siena School Lease
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runoff and the growth of invasive plant species, by reducing the Commission's operating
expenses, and by allowing public access to the Leased Premises during specified periods of time
,
as shown on Attachment
B
("Access Schedule")
H.
The Commission 'and the Lessee intend that this Lease shall set forth the terms
and conditions under which the Lessee shall occupy the Leased Premises during the term hereof.
NOW,
THEREFORE, for and in consideration of the covenants, conditions, terms and
provisions contained in this Lease, the parties agree as follows:
1.
Recitals. The recitals set forth above are incorporated herein by reference and made a
material part ofthis Lease.
2.
Demise of Leased Premises. The Commission leases to the Lessee, the Leased Premises
as shown on and descnbed on Attachment A, commencing on the Lease Commencement Date
specified below.
3.
Term and Rent.
A.
Lease Term. Subject to Section 42 below, the demise of the Leased Premises as
provided in this Lease commences on the date that deed transferring to title ofthe Siena School
Property to Lessee is executed and delivered (the "Lease Commencement Date"), and
terminates twenty (20) years thereafter, unless the Lease is terminated earlier
in
accordance with
the provisions ofthis Lease.
B.
Rent. The Lessee shall pay to the Commission a rent of One Dollar and
noll
00
($1.00) payable annually ("Base.Rent") in advance, without notice or demand, beginning on the
Lease Commencement Date, and continuing on the same day of each year thereafter for the
entire term ofthis Lease. Additional Rent (as defined in Section 11) shall be due and payable
upon demand.
. C.
Rent Payment Address. Subject to change by written notice from the
Commission, the Lessee
sh~ll'make
all Rent payments to the Commission at:
Property Management Office, Montgomery County Parks
The Maryland-National Capital Park and Planning Commission
10611 New Hampshire Avenue
Silver Spring, Maryland 20903
4.
Use of Leased Premises.
A.
The Lessee shall use the Leased Premis.es solely for activities conducted
in association with the operation of a private educational institution and such other uses
as may be permitted under the Lessee's Special Exception, such activities shall include
Siena School Lease
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before school or after school programs and outdoor sports and recreational activities
operated by the Lessee and/or its designee(s) or sublessee(s).
B.
Subject to the requirements of Lessee's Special Exception, the
Commission may use any parking lots, roads, driveways, and recreational fields located
al~
or
in
part, on the Leased Premises except during the Lessee's normal hours of
operation (including before school or after school programs) or during special events
held on the Leased Premises by the Lessee and/or its designee(s) or sublessee(s). The
Lessee shall post signs on the Leased Premises advising the public ofthe Commission's
rights with respect
to
this
Section 4(B).
5.
Restrictions on Use of Leased Premises. The Lessee shall not:
A.
Use the Leased Premises in violation of any Commission law, regulation
and practice and any Federal, State and local law and regulation;
B.
Commit waste on the Leased Premises;
C.
Use the Leased Premises for any purpose that
is
unlawful, unsafe, and
hazardous or
in
violation of any law or regulations;
D.
Place, dispose of or store any material or substance on the Leased
Premises that is illegal, controlled, hazardous or toxic, and not permit any other person
to bring, place, dispose of or store any material or substance that is illegal, controlled,
hazardous or toxic;
E.
Premises;
Allow any person to park a recreational vehicle or boat on the Leased
F.
Except for uses
in
connection with commercial deliveries or services,
special events, buses used by the Lessee
in
the operation of its private educational
institution, or pennitted construction, allow any person to park a commercial vehicle,
truck, or equipment on the Leased Premises;
G.
Premises;
Allow any person to park who is not authorized to use the Leased
H.
Except
in
connection with permitted construction, repairs or new
improvements, use the Leased Premises as a storage area for equipment or materials;
Allow any motor vehicle by Lessee's employees or contractors on the
Leased Premises with expired license plates, or registration;
1.
J.
Use the Leased Premises for repair of motor vehicles or equipment; and
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Premises.
Obstruct a sidewalk, driveway, exit, or entrance, or area in the Leased
Pesticides.
The Lessee shall comply with any Commission law, regulation and
6.
practice, and any Federal, State, and local law and regulation governing the use of
pesticides, including but not limited to storage, inventory, purchase and disposal, and
application. Lessee shall not use any pesticide that is prohibited by any Commission
law, regulation and practice, and any Federal, State, and local law or regulation. Lessee
shall obtain prior written approval from the Director ofParks or the Director's designee
before application of any pesticide on the Leased Premises.
7.
Hazardous Materials.
A.
The Lessee shall not use or store any asbestos, hazardous or toxic
materials or substances, (hereinafter "Hazardous Material"), as defined in any
Federa~
Stat~,
Commission or local laws, regulations and rules.
B.
'
Ifthe Lessee causes or pennits the release of any Hazardous Material, as
defined above in
this
paragraph,
in
or on the Leased Premises, the Lessee shall
indemnify, defend and hold the Commission harmless from any and all actions, claims,
demands, costs, damages and expenses of any kind, including:
(l)
attorneys fees, (2)
diminution in value of the Leased Premises, and (3) damages for the loss or restriction
on use ofthe Leased Premises, which are made against or incurred by the Commission
arising during or after the Tenn ofthis Lease. The Lessee is liable during the Term of
this Lease and as long as Lessee has possession of the Leased Premises, whichever
period is longer. The Lessee is not liable for the release ofHazardous Materials on the
Premises prior to the commencement ofthis Lease.
Improvements.
The Lessee shall construct the Improvements at its sole cost in
8.
accordance with the applicable building codes and the Commission's standards. The
Commission shall not be responsible for any part.ofthe cost ofthe Improvements.
,
,
9.
Lessee - Maintenance. Repair, and
Replacement~
The Lessee shall, at its
sole costs and expense, in accordance with the annual maintenance plan and schedule
approved by the Commission in accordance with this section as set forth below:
A.
Maintain the Leased Premises, including all Improvements, in a good
state ofrepair and cleanliness including without limitation nonstructural, ordinary and
extraordinary repairs, maintenance and replacements, routine and periodic maintenance
of all grass areas, including mowing, mulching, and fertilizing, and managing invasive
plant species;
B.
Perform routine maintenance oftrees, shrubs, and other plantings on the
Leased Premises and replace any diseased, dying or dead trees, shrubs or other
plantings on the Leased Premises required by a landscaping or storm water
Siena School Lease
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management plan approved by the Commission or any local, State, or Federal agency
having jurisdiction;
E.
Perform periodic maintenance ofplaying surfaces;
Clear all vehicular and pedestrian ways ofice and snow; and
Remove and dispose oftrash, solid waste, refuse, rubbish and debris.
F.
G.
The Lessee shall meet with the Commission's designee annually to establish an annual
maintenance plan and schedule for the Leased Premises. If the parties are unable to
agree on the annual maintenance plan and schedule by the first day ofSeptember of
each year, then the Lessee shall maintain the Leased Premises in accordance with the
then current, reasonable and customary management and maintenance practices and
policies ofthe Commission.
The Lessee shall have a commercially reasonable time to repair or rebuild
improvements damaged or destroyed by casualty.
10.
Utilities and Services. The Lessee shall promptly pay all fees, taxes, costs and
charges for all services, including electricity, gas, water systems, septic systems, sewer
systems, telephone, refuse, cable, communications, janitorial and other services for
improvements and activities used by Lessee on the Leased Premises.
11.
Reimbursement to Commission. lithe Lessee fails in the performance, to the
Commission's satisfaction, of any of Lessee's obligations under this Lease, and
Lessee's failure continues for thirty (30) days after written notice from the
Commission, such failure to perform shall be considered a default ("Default") and the
Commission may cure the Defauh on behalfofthe Lessee. The Lessee shall reimburse
the Commission, upon demand of any out-of-pocket sums, amounts, costs, fees,
charges or expenses incurred by the Commission to' cure Lessee's Defauit, such as
without limitation, materials, labor, administrative costs, and professional fees, and the
amount ofthe reimbursement shall be additional rent ("Additional Rent"). Costs will
based on charges as reported through the Commission's PayPass system or an
equivalent program.
12.
Commission Access to Leased Premises. In addition to any access granted
under Section 4(B), the Commission shall have access to the Leased Premises for the
purpose of
A
Inspecting the Leased Premises, and performing any maintenance or.
repair not performed by Lessee in accordance with the Lease obligations;
B.
Enfurcing the Lease;
Siena School Lease Page 5
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..
(
".
C.
Accessing adjacent parkland;
D.
Assuring in emergencies the safety, improvement or preservation of the
Leased Premises; and
E.
During the last six months ofthe lease term, -showing the Leased
Premises to any prospective new lessees.
, The Commission shall provide two (2) business days written notice to Lessee, except in
emergency.
13.
Public Access to Leased Premises. Subject to Sections 4(B) and 12(C), the
public shall not have access to the Leased Premises without the consent of the Lessee,
which consent shall not be unreasonably withheld, conditioned, or delayed.
14.
Security and Liens.
A.
The Lessee may pledge as security to a lender a deed of trust covering
the Lessee's leasehold interest in the Leased Premises created by this Lease as security.
The deed oftrust shall by limited solely to the Lessee's leasehold interest in the Leased
Premises and shall not include the Commission's fee interest in the Leased Premises. If
a lender requires a recognition agreement generally in the form ofthe recognition
agreement shown in Attachment C as a condition of making a loan to the Lessee, the
Commission shall enter into such an agreement with the lender provided that the
Commission determines that the recognition agreement adequately protects the
Commission's interests.
B.
'The Lessee shall not permit any liens to be imposed or maintained
against the Leased Premises for any labor, service or material furnished to Lessee. If
any lien is asserted against the Leased Premises or the Lessee's leaseho ld interest in the
Premises, the Lessee shall promptly at the Lessee's sole cost and expense have the lien
discharged by payment, bond or otherwise.
15.
Signs. The Lessee shall not erect, place or install any sign on the Leased
Premises without obtaining the written approval in advance from the Director of Parks
or the Director's designee. The Lessee may place a temporary sign associated with a
special event without prior written approval ofthe Director of Parks or the Director's
designee, so long as Lessee removes the sign within forty-eight (48) hours after posting
ofthe sign.
16.
Insurance. Lessee shall maintain insurance coverage for the Leased Premises,
including all improvements. This insurance coverage shall be the primary coverage.
The insurance must comply with the following provisions:
A.
Comprehensive General Liability insurance
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General Aggregate -$1,000,000.
Occurrence Based Deductible allowed - $1,000.
Coverage and Limits
Premises and operations - $1,000,000.
Products and completed operations - $1,000,000.
Independent contractors - $1,000,000.
Contractual-Leases - $1,000,000.
Explosion, collapse, underground hazards - $1,000,000.
Personal injury and advertising injury - $1,000,000.
Real Property and Personal Property Damage ­
Replacement Value.
Contractual Indemnity-Hold Harmless - $1,000,000.
Fire Damage (anyone fire) - $50,000.
Medical expense (anyone person) - $5,000.
B.
Automobile Liability
Combined Single Limit - $1,000,000.
Includes owned, hired and non-owned motor vehicles
Excess Umbrella Liability -$1,000,000.
Worker's Compensation
Coverage required by the Maryland Law
C.
D.
E.
The insurance company must be licensed to do business in Maryland and
must be acceptable to the Commission. The Lessee must provide the Commission with
a certificate of insurance before occupancy of the Leased Premises and must provide
the Commission with a renewal certificate of insurance on or before expiration ofthe
existing certificate. The certificate must provide for not less than forty-five (45) days
advance written notice to the Commission in the event oftermination, modification or
cancellation.
F.
All insurance policies must include the Lessee as the named insured and
the Commission as an additional
insured.
All insurance policies must waive all rights
ofsubrogation against the Commission.
G.
The Lessee shall provide insurance sufficient to cover the replacement
value of all improvements on the Leased Premises. In the event insurance coverage is
not sufficient for any reason, the Lessee shall repair the Leased Premises so that is
in
a
safe condition.
17.
Indemnification
-
Lessee. The Lessee shall indemnify, defend and hold
harmless the Commission against
and
from
all
claims, liabilities, obligations, damages,
fines, penalties, demands, costs, charges, judgments and expenses, including, but not
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limited to, reasonable attorneys' fees, that are made against or incurred by the
Commission arising from the Lessee's negligence, wrongful conduct, negligence
performance or failure to perform any ofthe Lessee's obligations under this Lease;
provided that the Commission shall provide written notice to Lessee within ten (10)
business days of its first receiving notice ofsuch claim or other actual or threatened
liability and afford Lessee a reasonable opportunity to handle the defense of such claim
or liability.
. .
Alterations to Leased Premises.
The Lessee shall obtain the written approval
18.
in advance froin the Executive Director ofthe Commission or the Executive Director's
designee prior to making any alterations, additions or improvements
to
the Leased
Premises. The Lessee shall comply with
all
applicable Commission, State, Federal and
local laws and regulations.
19.
Reports to Commission.
The Lessee shall promptly notify the Lessee's
insurance carrier and the Commission of any damage or personal injury on or about the
Leased Premises which occurs by any cause, including, but not limited to negligeI)ce,
accident, fire, water, flood, wind, explosion, wrongful act and vandalism. Lessee shall
notify the Park Police at
30l~949-3010
and the Property Management Office at (301)
495-2520.
Assignment and Subletting. Lessee shall not assign
this
Lease or allow any
20.
person or legal entity to use or sublet any part of the Leased Premises (other than
in
the
normal course of facility operations conducted from the Siena School Property) without
prior written consent ofthe Commission, which consent shall not be unreasonably
withheld, conditioned or delayed, as to the terms and provisions ofthe assignment or
sublease, the identity ofthe assignee or sublessee and its capabilities and financial
responsibility. Notwithstanding the previous sentence, the Commission shall not be
obligated to approve an assignment or subletting ifthe Commission detennines that the
proposed assignee's or sublessee's proposed use ofthe Leased Premises does not fulfill
a public and a park purpose.
If
the Commission consents to a subletting or assignment,
the Lessee, the sublessee, andlor the assignee shall be jointly and severally obligated
and liable to the Commission under the terms ofthe Lease. The Lessee must submit to
the Connnission a fully executed copy of the sublease or assignment not less than
fifteen (15) days after the Lessee and the sublessee or the assignee execute the sublease
or assignment. No such assignment or sublet ofthe Leased Premises by the Lessee
shall be effective until approved by the Coimnission in writing. The foregoing
limitations on subletting to the contrary notwithstanding, if Lessee's Special Exception
approval allows Lessee to have a sublessee or other occupant or user ofthe Siena
School Property, and provided Lessee's use and operation under the Special Exception
remains the primary use of the Siena School Property, such sublessee's use shall not be
deemed be an assignment or subletting under this Lease and such sublessee shall be
permitted to use the Leased Premises consistent with the rights of Lessee in accordance
with the terms ofthis Lease without the prior consent ofthe Commission, but Lessee
shall remain fully responsible for the performance of all obligations as Lessee under
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this Lease and the provisions ofSection 17 shall be deemed to apply to, and cover, any
liability or claims arising out of any actions of such sublessee.
21.
Termination.
Subject to compliance with any agreements ofthe Commission
executed pursuant to or contemplated by Section 14(A)
hereo~
if the Commission
determines during the term ofthe Lease that Lessee
has
materially defaulted
in
the
performance of this Lease (for purposes ofthis Lease, a "Lessee Default"), the
COnmllssion may serve upon the Lessee a notice of default; and
if
within thirty (30)
days ofsuch notice, the Lessee fails to cure the specified Lessee Default (provided,
however, that if such Lessee Default is not susceptible to cure within such thirty (30)
day period, such cure period shall automatically be extended so as to allow sufficient
time for such cure, but
in
no event shall such cure period exceed ninety (90) days unless
otherwise agreed by the parties), then (1) the Commission may (but shall not be
obligated to) make such payment or
do
such act as may be reasonably necessary to cure
such event, and charge the amount ofthe expense thereof
to
the Lessee, which amount
shall be due and payable by the Lessee upon demand, or (2) the Commission may,
without terminating this Lease, bring an action in a court oflaw for injunctive relief
andior monetary damages suffered as a result ofsuch event, or (3) the Commission
shall have the right to terminate this Lease upon written notice to the Lessee.
Notwithstanding any other provision
hereo~
ifthe Lessee is unable to obtain a loan
from a lender to make improvements to the Siena School Property and the Leased
Premises, the Lessee shall have the right to terminate this Lease and this Lease shall be
deemed null and void co-incident with such termination.
22.
Surrender of Leased Premises.
On or before the last day of the Lease tenn, or upon any earlier
termination ofthe Lease as provided herein, Lessee shall peaceably surrender the
Leased Premises including all improvements in good order and repair and otherwise
in
the same condition as upon the later of commencement ofthe Lease or the completion
of construction of any improvement on the Leased Premises, as the case may be, except
for:
(l)
ordinary wear and
tear;
(2) loss by fire or other casualty not caused by the
Lessee; and (3) any repair or replacement that is covered by insurance proceeds payable
or assigned to the Commission.
.
B.
The Lessee shall remove all ofthe Lessee's equipment, vehicles and
personal property. The Lessee may remove the Lessee's personal property that is
affixed to the Leased Premises, provided that the personal property is removed without
substantial injury to the Leased Premises. The injury is not substantial if the Lessee
promptly restores the Leased Premises to the condition existing prior to the installation
of the personal property and the restoration is to the satisfaction ofthe Commission.
The Lessee may not remove any permanent fixture, which is property, materials or
improvements that has become part ofthe Leased Premises.
A.
23.
The Commission's Remedies upon Expiration or Termination. The
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Commission shall have the right and option upon expiration or termination ofthe Lease
to: (a) re-enter the Leased Premises,
(b)
make any repairs or maintenance that
may
be
necessary, (c) expel the Lessee or anyone claiming through the Lessee, and (d) remove
any property from
the
Leased Premises. The Lessee shall remain liable for the Lessee's
negligence, wrongful conduct, negligent perfonnance or failure to perform any ofthe
Lessee's obligations under this Lease, plus court costs and reasonable attorney's fees.
Quiet Enjoyment
So long as the Lessee perfonns all ofthe Lessee's
24.
obligations under this Lease, the Lessee shall have quiet and peaceful use and
enjoyment ofthe Leased Premises, subject to the provisions ofthis Lease, without
interference by the Commission or any party claiming by, through or under the
Commission.
.
Compliance
With Laws. The Lessee shall promptly comply with all
25.
Commission laws, regulations and practices and applicable Federal, State and local
laws and regulations.
Notices.
The parties shall send all notices, requests, demands or other
26.
communications in writing by: (a) personal deliveryt or
(b)
certified mail or registered
mail, postage prepaid, return receipt requested, to the Commission or the Lessee, at the
. respective addresses set forth below:
The Commission:
Property Management
M-NCPPC
10611 New Hampshire Avenue
Silver Spring, Maryland 20903
Office of General Counsel
M-NCPPC
6611 Kenilworth Avenue
Riverdale, Maryland 20737
The Lessee:
The Siena School
9727 Georgia Avenue
Silver Spring, MD 20910
Miller, Miller
&
Canby
200-B Monroe Street
Rockville, Maryland 20850
Attn: Jody S. Kline, Esq.
With copy to:
Either party may change its notice address by written notice to the other party.
No
Partnership.
The Commission is not a partner, joint venturer or associate
27.
ofthe Lessee in the Lessee's use of the Leased Premises.
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28.
Periodic Reviews. At the end of each five years, the Commission shall review
the use ofthe Leased Premises under this Lease, the Lessee's perfonnance under this
Lease and other matters related to this Lease, and provide any report of such review to
the Lessee. No change in the tenns or requirements ofthis Lease may be imposed
without the express written consent ofthe Commission and the Lessee.
Non-Waiver. The failure by the Commission to insist upon the perfonnance of
29.
any provision, condition or term ofthis Lease, or the failure ofthe Commission to
exercise any right or remedy shall not constitute a waiver ofprovision, condition, term,
right or remedy by the Commission. The provision, condition, term, right or remedy
shall continue in full force and effect, unless waived in writing by the Commission.
30.
Applicable Law. This Lease shall be construed in accordance with the laws of
the State of Maryland and enforced in a court of competent jurisdiction in Montgomery
County, Maryland.
31.
Non-Discrimination. The Lessee shall not discriminate against any participant
in or applicant for its programs, against any employee or applicant, or against any
contractor because of age, sex, race, creed, color, national origin or disability. The
Lessee shall ensure that applicants, participants, employees and contractors are treated
without regard to age, sex, race, creed, color, national origin or disability. Ifthe Lessee
is determined to be in violation of any Federal, State or Countynondiscrirnination law
by the final order of an agency or court, the Commission may terminate or suspend this
Lease in whole or in part.
32.
Entire Agreement. This Lease contains the entire agreement between the
parties. This Lease may only be modified by a written amendment signed by the
parties.
33.
Waiver of Jury. The Lessee waives any right to a trial by jury in any legal
action relating to this Lease.
34.
Obligations Surviving Lease. Any obligations, duties and liabilities ofthe
Les~ee
under the Lease shall survive the expiration or termination ofthis Lease.
35.
Permits. The Lessee shall obtain all permits and licenses required by the
Commission,
Federa~
State, and local laws and regulations.
36.
Severability. Ifany provision ofthis Lease is determined to be invalid or
illegal by a court or an administrative agency or body, that provision shall be severed
from this Lease and shall not affect the remainder or any other provision ofthis Lease.
37.
Independent Contractor. The Lessee is an independent contractor. The
Lessee-and its agents, officers, employees, assigns, contractors and representatives are
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not agents or employees ofthe Commission.
38.
INTENTIONALLY DELETED.
39.
Successors and Assigns.
This
Lease is binding upon the parties and their
successors, agents, officers, employees, assignees, contractors, representatives and
sublessees.
40. . Applicability of Maryland Natural Resources Article. Title 5, Subtitle 11.
Anything herein to the contrary notwithstanding with respect to the obligations ofthe
Lessee to maintain the Leased Premises or its indemnification and insurance obligations
hereunder, the Commission acknowledges that the Lessee
is,
and is intended to be, an
"owner" ofthe Leased Premises as such term is defmed under Annotated Code of
Maryland, Natural Resources Article, Title 5, Subtitle II, Section 5-1101(e) and that
the provisions ofthe Natural Resources Article, Title 5, Subtitle 11 shall be applicable
to the use by the public of the Leased Premises and are not waived hereunder
41.
Taxes -Fees. The Lessee shall pay any taxes, fees, assessments, or charges
attnbutable or related to the Lessee's use ofthe Leased Premises. The Lessee reserves
the right to handle appeals of any tax assessment or reassessment of the premises for
real estate tax purposes.
42. Contingencies. This Lease is contingent on the Lessee obtaining a Special
Exception for its proposed uses and purchasing the Siena School Property. The
Commission and Lessee have the right to terminate
this
Lease if either contingency
does not occur.
SIGNATURE PAGE FOLLOWS
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(
IN WITNESS WHEREOF,
the Commission and the Lessee have executed this
Lease on the dates written below.
Date:
By. _ _
~~~~~---­
ature)
Typed Name:
CI~
tau
£mat/!
e~==~~_
Title: _ _ _
#!..!.l~::..:..::C«J:=--=%:.t1--J(_~=--:::...;;;_1
WITNESS
Date:
By"
~
(i
ture)
::", ')
Typed Name:
Uz,JJ.R.f..n
Title:
rucJoe0;f{)n
~ N.o.n.a~
THE MARYLAND-NATIONAL
CAPITAL PARK
AND
PLANNING
COMMISSI
Date:
--.:::....!.~-H-Y4...::.rV
ATTEST
ey
Date:
------
By.
<)~
Joseph Zimmennan
Secretary-Treasurer
L
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""""~
--;.-t,"~'1
............
..
...
~
-_
l=_
::~=:
.r;.,r..
"""_._,
~
r
'I.
C
1".
/
i
r.
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Attachment B
Access Schedule
I.
The Lessee shall have exclusive use of the Leased Premises throughout the
calendar year on weekdays (Monday through Friday) from 7:30 am through
6:00
pm except. for Federal, State, or Local holidays.
II. In the case of an event to be held outside of the periods of exclusive use as
described above in Item I, if the Lessee desires exclusive use of the Leased
Premises for such an event, the Lessee shall make a request for exclusive use to
the Commission at least thirty
(30)
days in advance. The Commission may deny
the Lessee's request if the Commission determines, at its sole discretion,
approving the request would interfere with public or park purposes.
Notwithstanding the previous sentence, the Commission may not otherwise
unreasonably withhold or deny approval of the Lessee's request.
III. Except as otherwise provided in this Attachment C, the Lessee shall have non­
exclusive use of the Leased Premises.
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r'
Attachment C
Recognition Agreement
RECOGNITION AGREEMENT
nus
RECOGNITION AGR.E.BMENT ("Agn:ementj
is
made as of _ _ _ _
~,
20---J
between
(,'Landlord") aud
II
_ _ _ _ _ _ _ _ _ ("Lender').
Recitals
In
accordance
with
the
dated
(''Lease''),
Landlord has leased
to
II
("Tenant'''). the real prope,r.tylocated
in
•Maryland
and
IDOl'C
particularly descnOed. In the Lease
("Propertyj.
Lender
-prop-OSIIS--:tC-o-n:tak--;-e~a
Tloan-=--m:("Lnanj
to
Tcmmt, the security
for which
w11l
Inolude a deed
of
trust cavering
Tenant's leasehold estate
in
the
Property
("'Dcc:d
ofTrust*').
As
II
condition precedent
to
making
the Loan to Tenant.
Lender
has required
LandJord
to
execnteand
deliver this
Agreemem.
Agreements
NOW nmREFORE,
in
consideration of these premises
and
the covenants aud agreements set
forth
balow, Landlord rmd Lender agree as follows:
1.
Landlord's Consent to
De¢ofTrusl.
Landlord
OODSIlIlts
to the
~xccution,
deliveIyand recotdation of
Landlord's Reprew!tations and Warranties.
Landlord represents
and
wammts
to
Lender asfollaws:
the Deed ofTrust.
2.
a.
Landlord is
II
duly
mganized.
validly cxisting.md In good standing
under the laws
of
the State ofMaryland. Landlord has
the
power and llUlhority to con.<:nmmalll the transactions
contemplated
hereby,
and bas
ta1=
allneocssary action
to
au1:hQPze thecxecution" delivery,
md
perfOttllmlce
of
this Agreement.
b.
The elI;ecution, delivery md performance by
Landlord
ofthis Agreement:
(i)
are within the
legal powers ofLandlord;
(il)
bave received
all
necessarygovemmental approval;
(ill)
will
not violalll any
provi.ion
oflaw,
or any order
of
any court orother ageacy of
govcrntl1tllt;
aud
(iv)
will
not rcsult
in
II
breach
of
or constitute
II
ddimlt
under anYlIgretmlCIlt or other
instrument
to which Landlord is a party oX"
bywhich
Landlord or the Property is bound.
Thill
Agreement
constitutes the legal,
VIllid
and bindiog obligations of
Landlord, Cllforceable against Landlord
in
acoordance with its terms.
c.
Attached hetelo
as
E:dubit A
is
alme.accumte aud complete copy
of
the
Lease.
The
~e
has
notmodificd, supplemented or amended
in
any wtryaud
tl1et.easerepresents
the entire
agreemCllt
ber:wee:n
Landlord and Terumt as to
the
leasing ofthe Property. There
is
no default on the part ofLandlon!. UDder the
Lease e.nd,
to
Landlmd'aknowlcdgo, there
is
no default on the
part
ofTenan~
underthe
Leas!:;.
Rc::n.thas been
paid
OIl
the
I..c:aSo
through
"
,20_. There
haa
been
no assignment,
hypothecation
or
pledge ofLalldlord's interest
in
the
Lease
or the rents due under the
Lease.
d.
Landlord',
fee estate
in the
Property
is
lmCllcumb=d
except
by
the Lease, and no
pmon
other thm Landlord has
lIl,Iy
interest
in
such fee es1a.te except ttnder the Lease.
3.
Lender's
Rights
Upon Lease Default.
a.
Landlord sba1lgiveUnder.
in
the mannerdescnOed.
by
Sectlon 7 ofthisAgreemeat,acopyof
each
notice givCll
by
Lendlord
to
Tenan10fa default byTene.ntundertheLease ("Lease Defimltj
at
the same
time as Landlord sives
SUGh
notice ofa Lease Defmlt
to
Tenant.
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SChool
Lease Page 16
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b.
Lender shall have the right
(but
&hallhave no obligatiQll), for
B
period
20 ds.ys.fram receipt
of
notice, to cure or
caUse
to be CIIIlId the
Le=Default.
I..andlol:cl
shall acc:eptperfurmance
by
Lender
with
the
SllIIle
force
and effect as
though
performed
by
Teuant.
Landlord shall
not commence euicising
its
remedies
under the Lease or applicable
law
as a result ofa
Lease
Default
by
Tcmantso long as Lender
in
good ftdlh
(i)
bas
commenced promptly
to
cure the
Lease
Default
and
continues
diligently
to prosecute
such
cure to
completion, or
(ii)
if
possession ofthe
Propcrtyis
rcqulred
in
order to cure the
Leue
Ddault
or iftbc Lease
Default
is
ofa nature that
itCllIlDot
bectm:d
by
Leader,
hu
cOIllXl1lmced to institute
and
coutinuesdil!geutl.yto
pllISUe
foreclosure
proceedings
and obtain possession
BDd,
upou obtaining possession. commences
promptly
anddiligentlypursuestocompl.etiOAcureofanyLeaseDcfaWtcapableofc:urebyLe:n.der;provided,howewr,
that
Lender shall
have
deliveired. to Landlord a
written
agreemcmt to
take
the actions descn'bed
in
clause
(i)
or
ell)
above,
and that during !he pe.rlcd
in
which
such action
is
being
taken
all ofthe other obligatious ofTe:oant
under the Lease are
being
duly
per.formed.
At
any time after the delivery of
such
agreement, Lender IllliY
notifY
Laudlord that it
has
relinquished possession of the
Property,
or that it
will
not
institute or will
discontinue foreclosure
proceedings,
or that
it
deems and n:quests
and
n:cci.vcsLandlord's
COI1CUI:!:CIlCC
that the
Lease
Default
has
been cured
by
Tenant,
and
in
such event Lender
sball
have
no
further
liability under such
agreement to
take
any
of
the actions described
in
clause
(i)
orCn)
above and.
llIlh:ss
theLease
Dcfiml1
has
been
cured, Landlord
shall
have the
unresIricted
right
to
terminate
the
Lease
and
to
take
any
other
lIetion
it
deems
appropriate
by
reason
of
any Lease Default
by
Teoant.
4.
Execution
qfRgplacsment
I&a.re.
8.
Upon request
by
Lender made
within
30
days
after
(1)
Lender'lI
receipt of notice of the
tm-mination
of
the
Lease
for
anyreasou, or
(ii)
Lender's (lompletion offureclosure proceedings or
lilly
other
actiou pursuant to which
Lender
or
its
designee obtains possessioo
of
the Property, Landlord shlill cooperate
with
Lender
in
OO!lIltlCtiOll
with any proceedings to· remove Tenant from the Property, and shall c:xccnte and
deliver a new lease \Replacement Lease") of
the
Property
to Lender or ill
designee,
for the remainder
of
the
term
of
the Lease, upon ell
the
covenants, conditions, limitations
and
agreements
contI!ined
in the
Lease,
provided that Lender
shall
pay
to
Landlord,
simultaneously
with
the delivery
of
the Replacement
Lease,
all
unpaid rent due undcrthe
I.ea.se
through the date
of
the con:m:lencementofthe term oflheReplacementLease
and
all
expenses. illcIuding
but
not limited to reasonable altomcys' fees
and
disblll'Scments
and
court
costs
incurred
by
Landlordin
COImection
with theLeaseDefiw.lt,
the
termination
of
the
Lease,
theevictionofTenant
and
the
prepllI'8tion of
the Replaeement
Lease.
~
as this Lca.se
The
Replacemeot
Lease
and
the leasehold estate
created
theceby
sbs1l.
m.a.in1ain
the same
with
regard
to anymongage enc:mnbrancc or
pledge
ou the Property or
my
otlu:t
lie:o,
cbarge or encum1mmoelthereon,
whctbei
ornotlhe same shaD
Ihen
be
in
existence,
and
shallprovidethat
IieDs,
charges orencumlmmces on theProperty which were subordina1e
to
the
Deed
ofTrustsball
notbeor bec:omea
lien.
charge or encumbrance with
respect
to the ReplaCQ'll.Cllt Lease. Concurrent with the
~on
and
dellvcry afthe
Replacement
Lease, Landlord
shall
assign to the tenant oamed therein
all
of'Landlord'srlght,
title
and
interest
in
and to all moneys (mclnding insurance and condemnationproceeds),
if
any,
then
hold byor
payable
to
Landlord which Tenant
would
have b=en entitil:d to receive
but
for
the termination of the
l.J:a$e.
b.
c.
Between
the
date of tennillation
of
the
Lease
and
the date
ofe;teClltioll
and
dolivet)' of
the
Rcplaccmcnt
U::ase,
Landlord
sball
not cancel my sublc:asc8 or accept any cancellation, tenninatiQll or
sutrellder thereof, unless such leI:mination shall
be
effected
as a Illlitter oflaw on the
terminatim
oItheLease,
without notice to Lender.
S.
No
Amendment
qfLease.
Landlord
shall
not
enter into
any
amendment of the
Lease
or accept any
canccllation
or
termination
ofthe
Lease
without
Lender's prior
written
COIlSCIlt.
6.
Estoppe/Certiticates.
Upon request by
Lender
from time to
time,
Landlord
shIUI
execute and deliver
to Lendor or
any
person designated
by
Lender a
written
statement certifying (a) whether the Lease
is
in
fun
force and effect,
(b)
whether thercarc
ImY
amendments to the Lease, and ifao, speclfyingtheamendments,
(I:)
whether there are any then-ex:isting
setoffs
or defenses against
the
eoforcement
of
anyofTenant's
rights
under
the Lease, and
if
so, specifying such matlers
in
IC8SOnable detail, (d) the dates,
if
any, to
which
mot
or
other
2.
Siena School Lease
Page 17
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SUIDS
due
Wlder the Lease have
been
paid.
(e) that Landlord
bas
no know:lcdg\'l
of
any
Iheo
existing
defaults of
Tenant under
the
Lease, cr
if
there ere such
dcfiw1ts,
specifying
them in detail,
(f)
that
Landlord bas no
knowledge ofany
everrt
haviJlg
occurrod that authorized
the
termination of the Lease
by
Landlord.
or
if
sucb
event bas ocClJln'Jd,
specifying
it
in reasocable detail,
and
(g)
any and all othermatters
reasonably~d
by
Lendc:r.
7.
~.
All notices,
demands, reqlleslll
and
other
cotmrltlllicaoons required
tIllder!his Agreement
shall
be
in
writing
and shall be deemed
to
bave been properly given
if
Sj:Ilt
by
hand
delivery, FcderalExpress
(or
similar
overnight conrim' service). or by United states
certified
mail (rctmn
receipt
requested),
poStage
prepaid,
addre!ised
to
the party
for
whom
it
is
intended
at
its
address
hereinafter
set
forth:
If
to
LandlOl'd:
IftoLeoder.
Notice
sball
be deeuied given as
of
the date
of hand delivery. as of
the
date
specified
for delivery
if
by
overnight
courier
service or as of2 calendar
days
after
tha
date
ofmailing. as the
Case
may be.
8.
Successors
and
Assigns
Bmmd.
The
covenants
and agreements contained in
this
Agreement
shall
bind,
end
thi:
rights
under
this
Agn=ncnt
&hall
inure
to,
the respective successors
and
assigns
ofLandlord
and
Lender.
9.
Governing-Law.
The
validity
of
this
Agreement,
each
of
its
tmns
and ptQ-visions. and
the
rights
and
obligations of
landlord
and
Lender
tIlleler
this
Agreement,. shall be governed by.
inteJ:preted,
constmed lllid
enfarced
pursUBIlt
to
BIld
in accordance
with
the laws
oflhe
State
ofMaryhmd (withootregard to principles
of
conflicts
of
laws).
10.
Severability.
In
the
= t
that
any
provision of Ibis Agreement
conflicts
with applicable law, such
collflicl
shall
not
affect
other provisions ofthis Agreement which
CBIl
be
given
effect
without
the
conflicting
provision. and to thfs cod the provisions
of
this Agreement are declared
to
be seveilible.
11.
l'ltegrationi
Drat
ModmCQ(j01l.
This Agreement
COllStitlltes
the
entire
Ilgreement
and
understsndingbetween Lenderlind Landlord conccmingthe subject matter oftbisAgreemeot, and supersedes
all
priOr
and contemporaneous oral
B!!d
written
agreemcntswith
regard
thereto.
This Agreement
may
not be
chBIlgcd,
waived, discharged
or terminated
orally.
but
onlyby
an iDstrumentor
instmmcn.ts
in
writing,
signed
by
the party.llgainst.whlch enforcement
of
the change, waiver, dischaIge or tc:mUnlltion
Is
asserted.
.
"I)
)2.
13.
Tune Is
qf
me
Essimce.
TIllIll
is
of
the
essence ofthis Agreemcnt.
Each
refenmcc
to
1liiY
gender
also
applies
to anyotber
gender.
The
sectionbeadings arc
for c;onvcllic.o.ceonly
Tense.'
Gender.'
SectionHeadingr.
In
this
Agreement, the singular
includes the
plural and vice
versa.
and are not
part
of
this
Agreement.
3
Siena School Lease Page 18
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14.
M
Trial Waiver.
Landlord
and
Lender jointly waive trial
by
jury
in
any
action or
proceeding
to
which I..andlord and LendccIllll.Y
be
parties, wing
out ofor in anyway
pertaining
10
this
Agreement,!heDeed
ofTrust or the
Lease.
It is agreed. and understood that this waiver
constitutes
a waiver of
trial
by
juxy
of
all
cla.ims
against
allparties
to
SIlCh actions or proceedings, includlngclaims againstpartieswho are notparUes
to
this
Agreement
This
wabu
is knowingly,
willingly
and
voluntarily made byLandlord and Lender,
and
each
of them hereby
repreaenl:s
that no representations
of
faot or opinion have been made by lOy individnal
to
induce
Ibis
waiver oftrial
'by
jiuy
or
to
in lOy way modifY or nullifY
its
effect. Landlord
and
Lend<:;
further
represent thettbeyhave been
represented
in
!he signing
oftbis Agreement and
in
the
making ofthis waiver
by
their
respective
independent legal couosel, selected of their
awn
free will, IOd that they have bad the
opportanity
10
discuss this waiver
with
theinespectivt: counseL
lNWlTNESS WHEREOF,
Landlord
and Lenderhave executed this Agreement as
of!hedayand year
first
above.
written.
WITNESS/ATI'EST:
LANDLORD:
A____________________________
By.=-________________
~(~)
Nam~
________________________
_______________________
Ti~~
LENDER:
By: =-_ _ _ _ _ _ _ _---'(SEAL)
Name:
TIfle:-----------------------­
4
Siena School Lease Page 19
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Tenant
acknowledges that it has read, understood end accepted Ibe terms
of
this
AgRlCment.
Tenant
,,'!lives
ofaction, claim or
reco'I'U"Se
against Landlord
IIIId
Lender,
its
agents
IIIId
employees.
by
reason
of
any act or omission
to
act under Ibe tenDs of this Agreementlllld specificallylllJtborizes them to
undertake
Ibe
actionscomemplated in
this
Agreemcatwith or
without
ptiornoIice
to
Ten.am. TenantindClIlJllifies
Lender,
its
successors
and
assigns and Landlord
agaiust
any COilts,lncludingTellSOnable attorneys
fees,
in eoforcing
Ibe
legal oparatiOlllllld effcctofthis Waiver
and
Acknowledgment
Land10nI
and
lender are authorized to rely on .
this Acknowledgment, Wa'i:vf;r and Indemnificalion..
WITNESSlATTEST:
TENANT:
any.
AcimowledgmeDt, WaiVei'
and
Indemnification
By:
=-_________
(S"EAL)
________________________
N~
ntl~
_________________________
s
Siena School Lease
Page 20
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,,'
ADDENDUM #1 TO LEASE
#1 TO LEASE ("Addendum") is made this
111
day of
----I-~"rl------'.
2012, between THE MARYLAND-NATIONAL CAPITAL PARK
AND
P~
G COMMISSION, a public body corporate (the "Commission"), 6611
Kenilworth Riverdale, Maryland 20737 and The Siena School, or its designated affiliated entity
("Siena" or the "Lessee"), whose address is 9727 Georgia Avenue, Silver Spring, MD 20910, as
an Addendum to that certain Lease, dated July 29,2011 ("Lease') and is made on the following
premises:
RECIT AL S:
A.
The Commission is a public body corporate, created and existing under Article 28
of the Annotated Code of Maryland that is engaged in performing governmental functions of
acquiring, developing, maintaining and operating public parks, facilities and recreation areas
within Montgomery County and Prince George's Counties, and, in such capacity, the
Commission is the fee simple owner of approximately 1.47 acres of land located as shown on
Attachment A (the "Leased Premises").
TH~DENDUM
3?
B.
The Lessee is the contract purchaser of a certain parcel of land identified on
Attachment A as "Property of Boys and Girls Club of Greater Washington, Parcell, Boys Club
of Silver Spring, Plat No. 5017, Liber 2584, Folio 308, Tax Map JP22, Parcel N458" (referred to
herein as the "Siena School Property").
C.
The Lessee intends to seek a Special Exception ("Special Exception") to permit
the operation of an educational institution and other uses permitted under the Special Exception
on the Siena School Property and the Leased Premises and in furtherance thereof and in
connection therewith, Lessee will make certain alterations and improvements to the existing
improvements on the Siena School Property, including installation of a fire sprinkler system to
the existing building which will require a new water service connection and vault (the "Water
Service Connection") to service the fire sprinkler system.
D.
Due to the location of certain specimen trees on the Siena School Property, Siena
proposes and desires to construct, install
and
maintain the new Water Service Connection within
the portion of the Leased Premises as more particularly depicted on Attachment B, attached
hereto (the "Water Service Connection License Area").
E.
The Commission is willing to permit the installation of the Water Service
Connection on the Water Service Connection License Area and the parties have agreed to amend
the
Lease
by the execution of this Addendum in order to confirm their agreement and obligations
with respect to the foregoing.
NOW, THEREFORE, in consideration of the foregoing Recitals which are incorporated
herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Commission and Siena hereby agree to modify the Lease as follows:
Siena School Lease. Addendum #1 Page 1
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1.
Construction of Water Service Connection on Leased Premises.
Anything in
Sections 4 and 5 of the Lease to the contrary notwithstanding, Lessee is· permitted,
subject to obtaining and complying with all requirements of a Site Utility Permit and
Water Service Connection Permit issued by the Washington Suburban Sanitary
Commission ("WSSC"), to construct, install and maintain, at Lessee's sole cost and
expense, a water service connection with a vault and appurtenant structures, within
the Water Service Connection License Area outlined in red and depicted on
Attachment B hereto, in order to provide for a water service connection to serve a
new fire sprinkler system as part of the Improvements intended to be made by Lessee
to the existing improvements located on the Siena School Property. Prior to
submission of Lessee's application to the WSSC for permits for the Water Service
Connection, Lessee will provide the Commission with a set of plans for the
installation of the Water Service Connection for review and approval, which approval
will not be unreasonably conditioned, withheld or delayed. The Commission will
provide, upon WSSC's request, a license agreement in favor of the WSSC for the
installation and maintenance of the Water Service Connection on the form
customarily used by the Commission with respect to WSSC water and sewer facilities
on Commission property. Furthermore, prior to the commencement of any work,
Lessee shall obtain from the Commission a valid Park Construction Permit which is
to be issued in accordance with the customary practices and requirements of the
Commission. The Lessee acknowledges that the Commission shall have no
responsibility to maintain the Water Service Connection and the Lessee covenants,
represents, and warrants that it
will
be solely responsible for maintaining the Water
Service Connection. The provisions of this Section 1 are expressly made subject to
the satisfaction ofthe contingencies set forth in Section 42 ofthe Lease.
2. Recordation.
If
either the Commission or the Lessee require this Lease or a
memorandum ofthe same to be recorded in the land records, then Lessee shall:
(a) .cause to be prepared a recordable form of this Lease or a memorandum of this
Lease at Lessee's sole costs and expenses; and
(b)
pay any and all costs and expenses associated with recording this Lease or
memorandum thereof, including but not limited to any recordation or transfer
taxes associated with such recording,
if
any.
3. Except as modified herein, the terms and provision of the Lease remain in full force
and effect.
SIGNATURE PAGE FOLLOWS
Siena School Lease. Addendum #1 Page 2
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IN WITNESS WHEREOF, the Commission and the Lessee have executed this
Lease on the dates written below.
Date:
~
Y
I
:(p};)..
Title:
ffuuJ
u{
[d.1b
I
~~.Q~n,<--_
~)
Typed Name:
LJ1,JJJ?ffi
~L'8DO
Title:
tJ£&o.
A1a.nQ~
THE MARYLAND-NATIONAL
CAPITAL PARK AND PLANNING
COMMISS~
Date:
By:
Patricia
.
an-~ey
Executive Director
~
ATTEST
Date:
b
..{C;A'J­
-..=;.....--­
By.
~~~~
_______________
~
__
C)$1
~
,
Joseph Zimmerman
Secretary-Treasurer
Siena School Lease. Adcjendum #1 Page 3
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Attachment A
Leased Premises
.
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Siena School Lease. Addendum
#
1 Page 4
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Attachment B
Water Service Connection License Area
Siena School
Lease.
Addendum #1 Page 5
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320105.
D02
RECOGNITION AGREEMENT
THIS RECOGNITION AGREEMENT ("Agreement") is made as ofJune
:l!l
.2012, between TIlE
MARYLAND-NATIONAL
CAPITAL PARK AND
PLANNING COMMISstON
(,'Landlord") and
BANK
OF GEORGETOWN
("Lender").
Recitals
In accordance with the Lease dated July 29, 2011 between Landlord, as landlord, and The Siena
School, which is the registered trade name used by Siena Learning. LLC, a Delaware limited liability company,
as tenant ("Siena School',), as amended by
AdQ;oc\um
oJ.::1
dated
~1201
Z.
(collectively
and as so amended, "Lease''), Landlord has leased to Siena School or its
~
ated affiliate, certain real
property located in Montgomery County, Maryland and more particularly described in Exhibit A attached
hereto ("Property"). Siena School has designated Sligo Creek Holdings, LLC, a Maryland limited liability
company and an affiliate of Siena School ("Tenant',), to be the tenant under the Lease and to hold and assume
the rights, and perform the obligations, of Siena School under the Lease, and Landlord has approved such
designation. Lender proposes to make a loan ("Loan") to Tenant, the security for which will include a deed of
trust covering Tenant's leasehold estate in the Property ("Deed ofTrust").
As
a condition precedent to making the Loan tl? Tenant, Lender has required Landlord to ex.ecute and
deliver this Agreement.
Agreements
NOW THEREFORE, in consideration ofthese premises and the covenants and agreements set forth
below, Landlord and Lender agree as follows:
Landlord's Consent to Deed o(Trust.
Landlord consents to the execution, delivery and recordation of
I.
the Deed ofTrust.
2.
Landlord's Representations and Warranties.
Landlord represents and warrants to Lender as follows:
a.
Landlord is a public body corporate validly existing under the laws ofthe State of Maryland.
Landlord has the power and authority to consummate the transactions contemplated hereby, and has taken all
necessary action to authorize the execution, delivery, and performance ofthis Agreement.
b.
The execution, delivery and performance by Landlord of this Agreement:
(i)
are within the
legal powers of Landlord; (ii) have received all necessary governmental approval;
(iii)
wiH not violate any
provision of law, or any order ofany court or other agency ofgovernment; and (iv) will not result in a breach
of or constitute a default under any agreement or other instrument to which Landlord is a party or by which
Landlord or the Property is bound. This Agreement constitutes the legal, valid and binding obligations of
Landlord, enforceable against Landlord in accordance with its terms.
c.
Landlord has delivered to Lender a true, accurate and complete copy ofthe Lease, including
all amendmet:lts thereto. The Lease has not modified, supplemented or amended in any way, except for those
amendments described in the Recitals above, and the Lease represents the entire agreement between Landlord
and Tenant as to the leasing ofthe Property. There
is
no default on the part ofLandlord under the Lease and,
to Landlord's knowledge, there is no default on the part of Tenant under the Lease. Rent has been paid
through the date of this Agreement. There has been no assignment, hypothecation or pledge of Landlord's
interest in the Lease or the rents due under the Lease.
d.
Landlord's fee estate in the Property is unencumbered except by the Lease, and no person
other than Landlord has any interest in such fee estate except under the Lease.
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3.
Lender's Rights Upon Lease Default.
Landlord shall give Lender, in the manner described by Section 7 ofthis Agreement, a copy of
each notice given by Landlord to Tenant ofa default by Tenant under the Lease ("Lease Defau)f') at the same
time as Landlord gives such notice of a Lease Default to Tenant.
b.
Lender shall have the right (but shall have no obligation), for a period 20 days from receipt of
notice, to cure or cause
to
be cured the Lease Default. Landlord shall accept performance by Lender with the'
same force and effect as though performed by Tenant. Landlord shall not commence exercising its remedies
under the Lease or applicable law as a result ofa Lease Default by Tenant so long as Lender in good faith
(i)
has commenced promptly to cure the Lease Default and continues diligently to prosecute such cure to
completion, or (ii) if possession ofthe Property is required in order to cure the Lease Default or if the Lease
Default is ofa nature that it cannot be cured by Lender, has commenced to institute and continues diligently to
pursue foreclosure proceedings and obtain possession and, upon obtaining possession, commences promptly
and diligently pursues to completion cure ofany Lease Default capable ofcure by Lender; provided, however,
that Lender shall have delivered to Landlord a written agreement to take the actions described in clause
(i)
or
(ii)
above, and that during the period in which such action is being taken all ofthe other obligations ofTenant
under the Lease are being duly performed. At any time after the delivery of such agreement, Lender may
notify Landlord that it has relinquished possession of the Property, or that it will not institute or will
discontinue foreclosure proceedings, or that it deems and requests and receives Landlord's concurrence that the
Lease Default has been cured by Tenant, and in such event Lender shall have no further liability under such
agreementto take any offue actions described in clause (i) or (ii) above and, unless the Lease Default has been
cured, Land lord shall have the unrestricted right to terminate the Lease and to take any other action it deems
appropriate by reason of any Lease Default by Tenant
a.
4.
Execution
of
Replacement Lease.
Upon request by Lender made within 30 days after
(i)
Lender'S receipt of notice of the
termination of the Lease for any reason, or (ii) Lender's completion offoreclosure proceedings or any other
action pursuant to which Lender or its designee obtains possession ofthe Property, Landlord shall cooperate
with Lender in connection with any proceedings to remove Tenant from the Property, and shall execute and
deliver a new lease ("Replacement Lease") ofthe Property to Lender or its designee, for the remainder ofthe
term of the Lease, upon all the covenants, conditions, limitations and agreements contained in the Lease,
provided that Lender shalJ pay to Landlord, simultaneously with the delivery of the Replacement Lease, all
unpaid rent due under the Lease through the date ofthe commencement ofthe term ofthe Replacement Lease
and all expenses, including but not limited to reasonable attorneys' fees and disbursements and court costs
incurred by Landlord in connection with the Lease Default, the termination ofthe Lease, the eviction ofTenant
and the preparation ofthe Replacement Lease.
a.
The Replacement Lease and the leasehold estate created thereby shall maintain the same
b.
priority as this Lease with regard to any mortgage encumbrance or pledge on the Property or any other lien,
charge or encumbrance thereon, whether or not the same shall then be in existence, and shall provide that liens,
charges or encumbrances on the Property which were subordinate to the Deed ofTrust shall not be or become a
lien, charge or encumbrance with respect to the Replacement Lease. Concurrent with the execution and
delivery ofthe Replacement Lease, Landlord shall assign to the tenant named therein all of Landlord's right,
title and interest in and to all moneys (including insurance and condemnation proceeds), ifany, then held by or
payable to Landlord which Tenant would have been entitled to receive but for the termination of the Lease.
c.
Between the date oftermination of the Lease and the date of execution and delivery of the
Replacement Lease, Landlord shall not cancel any subleases or accept any cancellation, termination or
surrender thereof, un less such termination shall be effected as a matter of law on the termination ofthe Lease,
without notice to Lender.
S.
No
Amendment
ofLease.
Landlord shall not enter into any amendment of the Lease or accept any
cancellation or termination ofthe Lease without Lender's prior written Consent.
2
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<.
6.
Estoppel Certificates.
Upon request by Lender from time to time, Landlord shall execute and de liver
to Lender or any person designated by Lender a written statement certifying (a) whether the Lease is in full
force and effect, (b) whether there are any amendments to the Lease, and ifso, specifying the amendments, (c)
whether there are any then-existing setoffs or defenses against the enforcement ofany ofTenant's rights under
the Lease, and if so, specifying such matters
in
reasonable detail, (d) the dates, if
any,
to which rent or other
sums due under the Lease have been paid, (e) that Landlord has no knowledge ofany then existing defaults of
Tenant under the Lease, or if there are such defaults, specifying them in detail,
(f)
that Landlord has no
knowledge ofany event having occurred that authorized the termination of the Lease by Landlord, or ifsuch
event has occurred, specifying it in reasonable detail, and (g) any and al1 other matters reasonably requested by
Lender.
7.
Notices.
All notices, demands, requests and other communications required under this Agreement
shall be in writing and shall be deemed to have been properly given ifsent by hand delivery, Federal Express .
(or similar overnight courier service), or by United States certified mail (return receipt requested), postage
prepaid, addressed to the party for whom it is intended at
its
address hereinafter set forth:
If to Landlord:
Property Management
M-NCPPC
10611 New Hampshire Avenue
Silver Spring, Maryland 20903
And
Office of General Counsel
. M-NCPPC
6611 Kenilworth Avenue
Riverdale, Maryland 20737
Ifto Lender:
Bank of Georgetown
438 North Frederick Avenue, Suite 31 8
Gaithersburg, Maryland 20877
Attention: Gerard M. Mcloughlin, Jr.
Senior Vice President
And
Bank of Georgetown
1054 31
st
Street, NW, Suite 18
Washington, DC 20007
Attention: Gerard M. McLoughlin, Jr.
Senior Vice President
With copies to:
Brian C. Rosenberg, Esquire
Offit Kurman, P.A.
8171 Maple Lawn Boulevard, Suite 200
Fulton, Maryland 20759
Notice shall be deemed given as of the date of hand delivery, as of the date specified for delivery if by
overnight courier service or as of 2 calendar days after the date of mailing, as the case may be.
3
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8.
Successors and Assigns Bound.
The covenants and agreements contained
in
this Agreement shall
bind, and the rights under this Agreement shall inure to, the respective successors and assigns ofLandlord and
Lender.
9.
GoverriingLaw.
The validity ofthis Agreement, each of its terms and provisions, and the rights and
obligations ofLandlord and Lender under this Agreement, shall be governed by, interpreted, construed and
enforced pursuant to and in accordance with the laws ofthe State ofMatyland (without regard to principles of
conflicts of laws).
10.
Sever~bility.
In the event that any provision of this Agreement conflicts with applicable law, such
conflict shall not affect other provisions ofthis Agreement which can be given effect without the conflicting
provision, and to this end the provisions ofthis Agreement are declared to be severable.
11.
Integration: No Oral Modification.
This Agreement constitutes the entire agreement and
understanding between Lender and Landlord concerning the subject matter ofthis Agreement, and supersedes
all prior and contemporaneous oral and written agreements with regard thereto. This Agreement may not be
changed, waived, discharged or terminated orally, but only by an instrument or instruments in writing, signed
by the party against which enforcement ofthe change, waiver, discharge or termination is asserted.
12.
Time Is ofthe Essence.
Time is ofthe essence ofthis Agreement.
13.
Tense: Gender,' Section Headings.
In this Agreement, the singular includes the plural and vice versa.
Each reference to any gender also applies to any other gender. The section headings are for convenience only
and are not part ofthis Agreement.
14.
Jury
Trial Waiver.
Landlord and Lender jointly waive trial by jury in any action or proceeding to
which Landlord and Lender may be parties, arising out ofor in any way pertaining to this Agreement, the Deed
of Trust or the Lease. It is agreed and understood that th is waiver constitutes a waiver oftrial by jury of all
claims against all parties to such actions or proceedings, including claims against parties who
are
not parties to
this Agreement This waiver is knowingly, willingly and voluntarily made by Landlord and Lender, and each
of them hereby represents that no representations offact or opinion have been made by any individual to
induce this waiver oftrial by jury or to in any way modify or nullify
its
effect. Landlord and Lender further
represent that they have been represented in the signing ofthis Agreement and in the making ofthis waiver by
their respective independent legal counsel, selected of their own free will, and that they have had the
opportunity to discuss this waiver with their respective counsel.
IN WITNESS WHEREOF, Landlord and Lender have executed this Agreement as ofthe day and year
first
above written.
WITNESSIATTEST:
LANDLORD:
MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION
By:
Joseph C. Zimmennan
Secretary-Treasurer
~:~~~
~
(SEAL)
4
40
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('
LENDER:
By:
~~~:¥.--:::-:+"'".:"":-:---:-
_ _ _ _
(SEAL)
Acknow1edgment, Waiver and Indemnification
Tenant acknowledges that it has read, understood and accepted the tenus ofthis Agreement. Tenant
waives any right ofaction, claim or recourse against Landlord and Lender.
its
agents and employees, by reason
of any act or omission to act under the terms ofthis Agreement and specifically authorizes them to undertake
the
actions contemplated
in
this Agreement with or without prior notice to Tenant Tenant indemnifies Lender,
its successors and assigns and Landlord against any costs. including reasonable attorneys fees,
in
enforcing the
legal operation and effect ofthis Waiver and Aclmowledgment. Landlord and Lender are authorized to rely on
this AclmowJedgment, Waiver and Indemnification.
.
WIlNESS/ATIEST:
TENANT:
SLIGO CREEK HOLDINGS, U.C
A Maryland Limited Liability Company
(SEAL)
ACKNOWLEDGMENTS ON FOLLOWING PAGES
s
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LENDER:
BANK OF GEORGETOWN
By: ________--------'CSEAL)
Gerard M. McLoughlin, Jr.
Senior Vice President
Acknowledgment, Waiver and Indemnification
Tenant acknowledges that it has read. understood and accepted the terms ofthis Agreement. Tenant
waives any right of action, claim or recourse against Landlord and Lender, its agents and employees, by reason
of any act or omission
to
act under the terms ofthis Agreement and specifically authorizes them to undertake
the actions contemplated in this Agreement with or without prior notice to Tenant. Tenant indemnifies Lender,
its successors and assigns and Landlord against any costs, including reasonable attorneys fees, in enforcing the
legal operation and effect ofthis Waiver and Acknowledgment. Landlord and Lender are authorized to rely on
this Acknowledgment, Waiver and Indemnification.
WITNESS!ATTEST:
TENANT:
SLIGO CREEK HOLDINGS, LLC
A Maryland Limited Liability Company
(SEAL)
ACKNOWLEDGMENTS ON FOLLOWING PAGES
5
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(
\
(
Acknowledgments
STATE OF MARYLAND,
CITY/COUNTY
OF
R\rict.
~
m
,TO WIT:
I HEREBY CERTIFY that on this
~ da~f
June, 2012, before me, the subscriber, aNotary Public
of the jurisdiction aforesaid, personally appeared
jar-,o.
and acknowledged
herlhimselftobethe
EY.e(,.lJ...~\re...l::)\·~
ofMARYLAND-
TIONALCAPITALPARK
AND PLANNING COMMISSION, and acknowledged that slhe, being autho zed so to do, executed the
foregoing document for the purposes therein contained, in the aforementioned capacity.
IN WIlNESS MY Hand and Notarial Seal.
~~EAL)
NTARYPUBUC
ADDITIONAL ACKNOWLEDGMENTS ON FOLLOWING PAGES
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(
STATE OF MARYLAND, CITY/COUNTY
O~@Q\.
WIT:
I HEREBY CERTIFY that on thisQ!1 day of June, 2012, before me, the subscriber,
a
Notary Public
of
the jurisdiction aforesaid, personally appeared Gerard M. McLoughlin,
lr.,
and acknowledged bimseJfto be
a Senior Vice President ofBANK OF GEORGETOWN, and acknowledged that he,
being
autilorized so to do,
executed the foregoing document for the purposes therein contained. in the aforementioned capacity.
IN WITNESS MY Hand and Notarial
Sea~.
My Commission Expires:
10\2tl\CloI5
STATE
OF
g~~~~r$;I~~
OF _ _ _ _ _.-). TO WIT:
I HEREBY CERTIFY
that
on this
~
day
of
J
~
before me,
the
subscriber, a Notary Public
ofthe jurisdiction aforesaid, personally appeared
~
I
and acknowledged
herlhimself to be tile
l?;.iv
of LIGO CREEK HOLDINGS, LLC, a
Maryland limited liability company,
ana
acknowledged
that
slhe,
being authorized
so
to do, executed the
fore~ing
document for the purposes therein contained, in the aforementioned capacity.
m.otn
IN
WTINESS
MY Hand and Notarial Seal.
My Commission Expires:
41$i~
Certification
Appeals.
Athena Marie RU8so
Notary Public. OIstJ1ct
of
Columbia
My
CommIssIon Expires 6/30/2014
THIS IS
TO CERTIFY that the foregoing Recognition Agreement was prepared by or under the
supervision of the undersigned,
an
attorney at law duly admitted to practice before the
Maryland
Court of
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('
STATE OF MARYLAND, CITY/COUNTY OF _ _ _ _ _ _-", TO WIT:
I HEREBY CERTIFY that on this __ day of June, 2012, before me, the subscriber, a Notary Public
ofthe jurisdiction aforesaid, personally appeared Gerard M. Mcloughlin, Jr., and acknowledged himselfto be
a Senior Vice President ofBANK OF GEORGETOWN, and acknowledged that he, being authorized so to do,
executed the foregoing document for the purposes therein contained, in the aforementioned capacity.
IN
WITNESS MY Hand and Notarial Seal.
__----::------:---------(SEAL)
NOTARY PUBLIC
My Commission Expires:
STATE OF
M:A:lftltA~/COUNTY
OF _ _ _ _ _---', TO WIT:
1HEREBY CERTIFY that on this
day ofJ'tne 2 1
ofthe jurisdiction aforesaid,
personall~ared
Cl
f b I
and acknowledged
herlhimself to be the
tYJt:1n
:.t:
of LlGO CREEK HOLDINGS, LLC, a
Maryland limited
liability
company, and acknowledged that slhe, being authorized so to do, executed the
foregoing document for the purposes therein contained, in the aforementioned capacity.
IN
WITNESS MY Hand and Notarial Seal.
O\:sirl~~,nJi~
£
My Commission Expires:
V}30}9:YIY
Certification
Athena Marie Russo
Notary
Public. Dlstnct of Columbia
My
CommissIon expires
8/30/2014
THIS IS TO CERTIFY that the foregoing Recognition Agreement was prepared by or under the
supervision of the undersigned, an attorney at law duly admitted to practice before the Maryland Court of
Appeals.
Brian C. Rosenberg
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EXHIBIT A
Property Description
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DESCRIPTION OF
ALEABEAREA
MARYLAND
NATIONAL CAPITOL
PARlC
&
PLANNING COMMISSION, OWNERS
TO
THE SIENA scnOOL
JUNE,2012
BEING
R
pllreol
ot
lalld,
lwelnan....
d•• oribod
ill, lhmugh,
over
nnd
across Iho
pl"tlpe!"ty
acqui...d
by
MAryland National Capitol
Pnrk
&
Planning eomllllllslOil
fiom
The
BII1I18
School, lnc. by deed
daled July 8, 1946 and recorded IImntlglh" Lund Rccord.o ofMDulnnmery Coullty. Maryland In
Liber 1025
At
"olio 45:1; being mom pIIrticulari,y described as IIOW slII'Vcyed:
BEGINNING for said pal'Ccl of land at a point olllhe soolheallcnlltlght of
WRy
Line of
l'cm.st
Olen Road, BIIld point baing dlslanl 43.00 fnt fro.n Ihe beginning oflho
lil'St
call or Nartll47" 46'
42ft
Rut
1101.09 foollino of&lIld M.N.C. P. P. C. property; thence runiling with UloForest Glen
Rood
nslll
of
WRy
1.
Nor11l47·
4S'
17" east for a distanco of69.oo muo tho wostcmmost COI'ller or Tho
Boys' Clob ofOrenter WashinQlon property
11$
showl! on
It
pial entilled "Boys Club of
Silv..... Spring" lind recorded amOll(l said Land Records as Pl.t No.
'017.
suid point bell
at
lhe
beginning oftlla nral oall or North 47' 46'
40"
EI'IIIt
280.28
feot lincos described
n deed from the Boys' Club
oeSUwr
Spring. Inc. to TIIC BOYG club ofOnlOlcr
Wuhlngtoll by dced dilled
JanllDl)'
7"'. 1959 and I'IOCOI'ded April 14. 1959 among lIJIid
L.and Recorda In Uber 2584 ot Polio 308; thence running with lhe Boys' Club Prollcl1y
the following four (4) QUUrses nud diflallees
Soulb 43' 03'24" !!nst
tor
n distAnce of200.00 feet
10
u poillillbence
NorIh 47'
45'
16"
i!8Rt
for a dlatnnce of300.00 fllOl to a /loint; Ihonco
North
I\J'
03' 24" West for
D
dlstanco of J80.2SlCol to n pDlnl; Ihento
B
obord
--\\
2.
3.
4.
5.
31.13 feet along tho arc or
8 CIIL'Ye
dullecUng
10
tho [en bavin8 a radius of20.00 leet. aud
beerln"
and
dlslnllce ofNorlh 87" 39' IU" Wost for n dlstallce of28.08 /\let to a
point
on the solltheastern right of way line afForest Olen Road; thence ICDving Ihe
comlllOIl
lineswllh tho Boys' Club property nnd
nl1ming
with Iho said righl ofway line
r"'-""
6.
North 47·
4S'
26" Bm fer a distauco
01"59.50
mtte a point; Ihen•• I••
vingsaid
right of
wl1y
line
.lId
wruling
ill,
through. over lind _
the M.N.C. P. P. C. proparly
tile
followblgsixteoo (16)
\!OIlTSeB
and distances
Soulb 34°07' 06" £!nst for a dlstnnce of7.24 feet
10
1\
polllr,lbeneo
7.
8.
9.
Soulb
45·
31' 39"
J:!IIst
Illr.
dbllanco
oC 65.00
feet
10
a point; IIleneo
South 43" 40' 19" £!nst for a distance of 61.00 fect
10 •
poinl; tbence
®
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10,
Soolil41" 39' 33" East for II disilltlce
0(59.00
reet 10 a pow: !hence
SQuth
37·
36'
09"
Eut for
II
dlstonce of2S.oo
feet
to a polnti
thence
Soulh 41" 02' 59" Bast for
8
dl!llDnaa
of61.50
feet
10
n
polnl:
lhence
South 39" Ol' 24" East
for
II
dlsttlnco of 50.00 Ceci
to
11
point; Ihonco
II.
12.
13.
14.
15.
Iti,
South 42" 57'
17"
RMt
fora dislance
ono.oo
(celto 11 point; 111011'"
Soulll
65" 37' 54"
West for
8
dlsllIDCC
of75.00
fcot
to a point; thenoe
Soulh
65°
OO'n"
Weal for
II
distance of75.00 feet 10 n1)Olnl; Ihenoo
Soulh 52'
31'
44"
West for
0
dl_1CII
of37.00
feet
10
n
polnl; thence
North
45"
40' 22" West for
8
diSlllOl:e ofS.SO reello II point; tbenee
Soulh
62'
31' 55· West LOra dlslon"" of42.00 lltotlo n point; Olon(;o
Soulb
70"19'
OS"
Wesl for
II
dllllall<:oof42..00
fcelloa
poilu; Ihenco
17.
18.
19.
20.
.
.-,
\
21.
SoUlh
64° 31' 57" West
fOfll
distance
ofl49.so
fcello
B
point:
thenco
Nonlt
11,,0
14' 40· West for a dllllllllC8
oC240.50
reel
10
tha point ofbcginning
2.2..
CONTAINING 63,117.35
squ,.... fecI or
I.4G2:7
."""lofland. more or Jess.
David B. Shonk --,
Property
Lille
SlIrvayor
Maryland Rcg. No.3IS
Expllllll:
911012012
For A. Mono.. Tbomftl
ndtl
Alllodlll • .,11I1!,
@
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/
"
1.1
'
I
/
AII'I Ultjcr: I
~:I;G
(:t.!II
H!lTATHU
~
.
L
LOT,
"---
I
"".<e"
/
"'.. an .....';;
C.
;
r_
-
--~-JF----
.
X·-­
-----.
l
Ii
l
__=-
t
_=-_L::.:___
2
Mil I.r: 1:1.110 IllilA Eli
LINE TABLE
LINE: ,
Ll
LENGTH
611.110'
DIRECTION
1147' 45'
17"£
IILOC~:
I
L2
L3
200.00' 543'
OJ'
24"'
300.00' 114,. 41>' 16"£
180.28'
114J'
03'
1.1
2'"w
T
--. --. --
I
----I
, . . .
.
~'U
....
' - - - - - - - ­
ROAD
ASP.......' P,t.WlO
L5
59.50'
7.24'
65.00'
N47' 45' 26"E
534'
07' OO"E
L6
L7
L8
S4Il' 37' 39"£
S43'
40' 19'E:
54.1' 39' 33"E
61.00'
59,00'
..-­
\ -­
!:J
H. H.
~1111'
L9
--------
LIO
LII
L12
Lt3
L14
2S.oo'
61.50'
537'
36'
on
$41' 02' 69"£
539' 01' 24'£
542' 57'
11"'
I
r
~
00.00'
30.00'
75.00'
75.00'
965' 37'
54'W
565'
00' 32'W
SS2' 3"
44'W
N45'
40'
22'W
r..
P.
~
I'. C.
jllOU!I&1I
L15
L16
BOYS AND GIRLS CLUB
OF GREATER WASHINGTON
PARCEl.. I
BOYS CLUB
OF
SILVER SPRING
PLAT NO.
5017
LIBEII 2S84 fOLIO JOB
PROPi'UY OF
51
1
ill'='
I
I
~J
I
i
JMO'
5.60'
5
Ll7
Ll0
LUI
L20
42.00'
42.00'
962'37' 5ll"W
670' 19'
OS'W
149.50'
564'
31' 57'W
240.50'
1143' 11'
4O"W
CURVE TABLE
~
l3
L21
LEASE AREA
eV17,3S SQ. FT.
OR
1.4627
AC.
(
,..,
CI
CHORD LENGTH
~
R~
~1r.ilLJ4B6
.",
(19
t
BE'
7l¥""
l~~~~
AlPRAlt PARKING
un
~
!i
GRAPHIC
SCALE
)It.
"
I INCH • 60
I.
!
'X
/
1.16
-1
L
!i
N
SKETCHOFA
LEASE AREA
FROM
M. N.C.
p,
&
P.C.
TO
THE SIENA SCHOOl.
JUNE 2012
SCALE: 1""60'
n.
=:;~-=
A'1T
=...,;=-_,
__
A.MQRlOHllI"...."""AUO....
IIIf,/1fG
"7.s"
1l!IIR.IIOOK I'ARtnMlI /I<ICIMUI;
MIUo!lS.·qoo
PH. (;roI.,B....
~J45
INIl (30488"08'4
CONSULTIIIG Ella/HEW
®
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Attachment
A
Leased Premises
"
,
.
,
.
~
,
!
#"
"
~
-
"i..--.;~
-
""-'-
Siena School Lease Page 14
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(
Law Offices Of
CLIENT FOCUSED. RESULTS DRIVEN.
200·B MONROE STREET,
ROCKVTI..LE,
MARYLAND 208S0 P: 301.762.5212 F: 301.424.9673
WWW.MILLERMILLERCANBY.COM
All attorneys admitted
in
Maryland and where indicated.
MM~
MAURY S. EPNER
(DC)
JOSEPH P. SUNTUM
SUSAN W. CARTER
ROBERT
E. GOUGH
DONNA
E.
MCBRIDE (DC)
GLENN M. ANDERSON (FL)
JSKLINE@MMCANBY.COM
PATRICK C. MCKEEVER
(DC)
JAMES L. THOMPSON
(DC)
LEWIS
R.
SCHUMANN
JODY
S. KLINE
ELLEN S. WALKER
HELEN M. WHELAN (DC,
WV)
MICHAEL G. CAMPBELL (DC. VA)
SOO
LEE-CHO
(CA)
AMY
C.H. GRASSO
(DC)
DAMON
B.
OROBONA
(DC)
March 18, 2013
Mr.
John Nissel
Deputy Director of Operations
M-NCPPC~
Parks Department
9500 Brunett Avenue
Silver Spring,
MD
20901
RE:
Special Exception Case
No.S~2822,
Petition of Siena Leaming, LLC
Dear John:
Following up on our brief conversation ofthe other day,
I
enclose for your infonnation
and records two Opinions ofthe County Board of Appeals.
The first Opinion. dated April 26, 2012, granted the original special exception to The
Siena School. The second Opinion, dated March 4.2013, was the result of a recent
administrative modification clarifying the hours ofoperation
f~r
the School. Together they
constitute the operational framework for the School into the
future.
If
you have any questions about the attached materials, please give me
a
call.
Sincerely yours,
MILLER, MILLER
&
CANBY
Jody S. Kline
JSK/dlt
Enclosures
J:\S\Siena Schoo1\19301- Special Exception\Nisselltr 01.doc
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(
\
BOARD OF APPEALS
For
MONTGOMERY COUNTY
CORRECTED RESOLUTION
Effective Date
Stella B. Werner Council Office Building
100 Maryland Avenue
Rockville, Maryland 20850
www.montgomervcountymd.gov/contentlcouncil/boa/index.asp
(240) 777-6600
Case No. S-2822
PETITION OF SIENA LEARNING, LLC
d/bla THE SIENA SCHOOL
RESOLUTION TO MODIFY SPECIAL EXCEPTION
(Resolution Adopted December 5, 2012)
(Effective Date of Resolution:
March 4,2013)
The Board of Appeals has received a letter, dated November 19, 2012,
from Jody S. Kline, Esquire, on behalf of Siena Learning, LLC (the School). Mr.
Kline requests an administrative modification
of
the special exception by
changing Condition 6, pertaining to hours of operation for the School, of the
Board of Appeals Opinion dated April 26, 2012. Mr. Kline explains that the
requested changes do not reflect any proposed change in the operation of the
school, but rather a realization that the original condition did not completely
encompass. the activities that can be anticipated in connection with the
operations approved for the use.
.
The Board of Appeals granted Case No. S-2822 to Siena Learning, LLC,
to penn
it
a'special exception, under Section 59-G-2.19 of the Montgomery
County Zoning Ordinance, to operate a private school.
The subject property is in Parcel 706, located at 1300 Forest Glen Road,
Silver Spring, MD 20901, in the R-60 Zone.
The Board of Appeals considered the modification request at its
Worksession on December 5, 2012. The Board made some slight, editing
changes to the proposed new Condition
6
so that
it
reads as follows:
6.
Hours of. operation for anyon-site activity will be from
7:00 a.m. until 7:30 p.m., Monday through Friday, except
for special events when the facility can stay open as late
a$ 9:00 p.m., and on Saturday from 8:00 a.m. until 5:00
p.m.
Section 59-G-1.3(c)(1) of the Montgomery County Zoning Ordinance provides,
pertaining
to
moaification of special exceptions:
@
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Case No. $-2822
Page
2
If the proposed modification is such that the terms or conditions
couJd
be
modified without substantially changing the nature,
character or intensity of
the
use and without substantially changing
the effect on traffic or on the immediate neighborhood, the Board,
without convening a public hearing to consider the proposed
change, may modify the term or condition.
The Board finds that the slight adjustment of the hours of operation for the
School is corrective in nature and does not increase the outward impact of the
special exception, and does not substantially change the nature, character or
intensity of the use or
its
effect on traffic or on the immediate neighborhood.
Therefore, on a motion by Carolyn
J.
Shawaker, seconded by Catherine G. Titus,
Chair, with Stanley B. Boyd and David K. Perdue, Vice-Chair, in agreement:
.
.
BE IT RESOLVED by the Board of Appeals for Montgomery County,
Maryland that the record in Case No. S-2822, Petition of Siena Learning, LLC, is
re-opened to receive Jody S. Kline's letter dated November 19, 2012; and
BE IT
FU~THER
RESOLVED by the Board of Appeals for Montgomery
County, Maryland that the request to modify the special exception is granted; and
BE IT FURTHER RESOLVED by the Board of Appeals for Montgomery
County, Maryland that all terms and conditions of the original special exception,
together with any modifications granted by the Board of Appeals, remain in
effect.
gyFf~
Entered in the Opinion Book
of the Board of Appeals for
Mon~~omery
County, Maryland
this 4 day of March, 2013.
David K. Perdue
Vice-Chair, Montgomery County Board of Appeals
~·~l~»-~
Katherine Freeman
Executive Director
NOTE:
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Case No. 8-2822
Page
3
Any party may, within fifteen (15) days of the date of the Board's Resolution,
request a public hearing on the particular action taken by the Board. Such
request shall be in writing, and shall specify the reasons for the request and the
nature of the objections and/or relief desired. In the event that such request is
received, the Board shall suspend its decision and conduct a public hearing to
consider the action taken.
Any request for rehearing or reconsideration must be filed within fifteen (15) days
after the date the Opinion is mailed and entered in the Opinion Book (See
Section 59-A-4.63 of the County Code). Please see the Board's Rules of
Procedure for specific instructions for requesting reconsideration.
Any decision by the County Board of Appeals may, within thirty (30) days after
the decision is rendered, be appealed by any person aggrieved by the decision of
the Board and a party to the proceeding before it, to the Circuit Court for
Montgomery County, in accordance with the Maryland Rules of Procedure. It is
each party's responsibility to participate in the Circuit Court action to protect their
respective interests. In short, as a party you have a right to protect your interests
in this matter by participating in
th~
Circuit Court proceedings, and this right is
unaffected by any participation by the County.