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HomeMy WebLinkAbout121-99 RESOLUTIONRESOLUTION NO. 121-99 A RESOLUTION APPROVING AN AGREEMENT WITH MSA LIMITED PARTNERSHIP (ALLTELL COMMUNICATIONS) FOR TOWER SPACE ON THE GULLY ROAD WATER TANK FOR THE PURPOSE OF INSTALLING RADIO COMMUNICATIONS EQUIPMENT AND APPURTENANCES (BUILDING ANTENNA). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council hereby approves an agreement with MSA Limited Partnership (Alltell Communications) for tower space on the Gully Road water tank, for the purpose of installing radio communications equipment and appurtenances (building antenna); and authorizes the Mayor and City Clerk to execute said agreement. A copy of the agreement is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this21!— day of Centember , 1999. APPROV . By. /dr"v'ri Fred Hanna, Mayor ATTEST: 2 1 3 WATER TOWER ATTACHMENT EXHIBIT A COMMUNICATION SITE AGREEMENT (With 90 days Due Diligence Period) THIS WATER TOWER ATTACHMENT COMMUNICATION SITE AGREEMENT ("Agreement") is entered into this 21x1 day of �, 1999, by and between the City of Fayetteville, ("Owner") and Fayetteville MSA Limi ed Partnership, by its general partner, ALLTEL Communications, Inc., ("Tenant"). 1. Grant. Subject to the following terms and conditions, Owner hereby grants to Tenant the nonexclusive right to install, maintain, operate and remove radio communications equipment and appurtenances on Owner's tower (the "Water Tower") located on the property described in Exhibit "A" (the "Premises"), and leases to Tenant a portion of the Premises for construction and occupancy of an equipment shelter or building to house Tenant's equipment on the Premises as more particularly described in Exhibit "A". Owner shall continue to have the right to occupy the Premises and operate the Water Tower and to grant others rights to occupy or utilize the Premises and the Water Tower at Owner's sole discretion. Owner also grants to Tenant a nonexclusive easement during the term of this Agreement for ingress, egress and regress and for the installation and transmission of utilities on property described on attached Exhibit "B" ("Easement"). Tenant may install equipment, personal property, improvements, alterations or fixtures as listed on Exhibit "C" (the 'Equipment"), or as Owner may otherwise approve, such approval not to be unreasonably withheld, conditioned or denied. Any personal property owned by Tenant, whether or not fixed or attached to the Premises or Water Tower, shall remain the property of Tenant prior to termination of this Agreement without regard to whether it appears on Exhibit "C". 2. Use. Tenant shall use the Equipment and the Premises for the purpose of constructing, installing, maintaining, improving and operating, at Tenant's expense, a communications facility, including antennae, equipment shelter or building, platforms, cable runs and incidental uses of the Water Tower. Tenant shall be solely responsible for securing any and all building permits and approvals, zoning changes or approvals, variances, use permits, and other governmental permits from applicable governmental authorities, including any Federal Aviation Administration approval (collectively, "Permits") prior to any construction on the Premises. Owner agrees to reasonably cooperate with Tenant in obtaining the Permits, and copies of the Permits shall be provided to Owner upon request. Tenant shall promptly pay all costs and expenses and shall not cause or permit any lien to be created against the Premises. 3. Term. The term of this Agreement shall be five (5) years, commencing upon the earlier date of Commencement of Installation of Equipment on the Water Tower or ninety (90) days from the date of full execution of this Agreement, (the "Commencement Date") and terminating at midnight on , 20_ ("Initial Term"). Notice of the Commencement of Installation of Equipment on the Water Tower for purposes of determining the Commencement Date shall be made pursuant to the Notice provisions of Paragraph 16 hereof in a form substantially the same as "Notification of Commencement of Installation of Equipment" attached hereto as Exhibit 111)". -1- 4. Renewal Term(s). Tenant shall have the right to extend this Agreement for one (1) additional term of five (5) years ('Renewal Term") on the same terms and conditions as set forth in this Agreement except that the Rent shall be increased as specified in Paragraph 5 below. Thi; renewal shall be term automatic unless Tenant notifies Owner of Tenant's intention not to renew. Upon expiration of the first Renewal Term( at the end often years total), Owner shall have the right not to renew the Agreement, or to renegotiate the terms and conditions thereof, provided the Tenant shall have been notified in writing one hundred and twenty (120) days prior to the expiration of the then current term of Owner's intent of non -renewal or desire to renegotiate the terms and conditions thereof. 5. Rent. (a) Initial Term. Beginning on the Commencement Date, Tenant shall pay to Owner as rental the sum of One Thousand and No/100 Dollars5:01,000.00) per month ("Rent") which shall include Tenant's irrevocable right to use and occupy the ground space surrounding Owner's Water Tower. Rent payments shall be made monthly in advance to the City of Fayetteville at the notice address as specified below and shall be prorated for any partial month at the commencement or termination of this Agreement, based on the number of days in that month. (b) Renewal Terms. In the event that Tenant elects to renew this Agreement as provided in paragraph 4, the rent for the first renewal term shall be $1200.00 per month and the rent for the second renewal term shall be $1440.00 per month. 6. Water Tower Maintenance. (a) Owner represents and warrants that its operation of the Water Tower, exclusive of Tenant's Equipment, including the lighting system, meets and will be maintained in accordance with all applicable laws, rules and regulations, including, without limitation, rules and regulations of the Federal Communications Commission, Federal Aviation Administration and all applicable local codes and regulations. The costs of maintaining the Water Tower, including painting of the exterior and finishing or painting the interior of the Water Tower, shall be borne by Owner, with the exception of Tenant's antennae and Equipment. In the event damage is caused to Tenant's equipment or personal property by Owner's agents, or employees, the cost of repairing such damage shall be home by Owner who shall, upon due notice and proof of loss provided by Tenant, timely reimburse Tenant the cost of repairing such damage. (b) Tenant shall maintain its antennae, transmission lines, equipment and equipment shelter in good operating condition. In the event damage is caused to the Water Tower by Tenant or Tenant's agents, employees, contractors or subcontractors, either during the initial installation of the equipment or subsequent operational, construction, or maintenance activities, the cost of repairing such damage shall be home by Tenant who shall timely repair any such damage. The cost of repair may include, but would not be limited to the cost of lost water, disinfection, public notifications, and re -painting. Should Tenant fail to timely make repairs required by this Agreement, Owner may, at Owner's option, make such repairs and Tenant shall promptly reimburse Owner for its costs and expenses incurred in such repair. Upon termination or expiration of this License, Tenant -2- shall remove its Equipment from the Water Tower and repair damage, if any, to the Water Tower caused by the removal of Tenant's Equipment, normal wear and tear excepted. Tenant's activities and operations and the Equipment shall not interfere with Owner's maintenance, repair and operation of the Water Tower and its lighting system. . 7. Due Diligence Period. Tenant's obligation to perform under this Agreement shall be subject to and conditioned upon: (a) Tenant's securing appropriate approvals for Tenant's intended use of its Equipment on the Premises from the Federal Communications Commission, the Federal Aviation Administrator, and any other federal, state or local regulatory agency havingjurisdiction over Tenant s proposed use of the Equipment; (b) Tenant's obtaining, at its option, a title report or commitment for a leasehold title policy from a title insurance company of Tenant's choice which must show no defects or restrictions of title or any liens or encumbrances which may adversely affect Tenant's use of the Premises or Tenant's ability to obtain financing; (c) Tenant's obtaining, at its option, a survey and analysis tests which must show no defects which, in the opinion of the Tenant may adversely affect Tenant's use of the Premises; (d) Tenant's approval of the condition of the Premises, which may be subject to, at Tenant's option, an environmental audit of the Premises performed by an environmental consulting firm of Tenant's choice; and (e) Tenant's determination that the Water Tower is structurally appropriate for Tenant's needs. Tenant shall act with due diligence within ninety (90) days of the date of execution hereof to obtain all governmental approvals necessary and to obtain any reports or analyses as set forth above which are necessary for Tenant to perform under this License. In the event that Tenant determines during the due diligence period that the Water Tower and the Premises are, in Tenant's opinion, unacceptable to Tenant, then this Agreement shall terminate and be of no further force or effect. 9. Interference. Tenant agrees to install Equipment of types and generating frequencies which will not cause interference to transmissions or signals from other users of the Water Tower as may be already in place on the Water Tower. At Owner's request, Tenant shall provide a detailed interference analysis showing potential conflicts between Tenant's frequencies and those of the other users already in place on the Water Tower. In the event the Equipment causes such interference, Tenant will take all steps necessary to correct and eliminate the interference. If the interference cannot be eliminated within 48 hours after receipt of written notice from Owner to Tenant (Notice Date), Tenant shall temporarily disconnect the electric power and shut down the Equipment (except for intermittent operation for the purpose of testing, after performing maintenance, repair, modification, replacement, or other action taken for the purpose of correcting such interference) and if such interference is not corrected within 30 days after receipt of the written notice, Tenant agrees to remove the Equipment from the Water Tower and the Premises and this Agreement shall terminate -3- as if by expiration. After the Equipment has been installed, Owner will require the proposed new co - locating tenant to develop the proper documentation showing that its proposed installation and the use thereof will not interfere with the existing tenant(s) equipment and use of the tower prior to the execution of an agreement to allow the subsequent co -location. The existing tenant(s) shall review and approve such documentation, but shall not unreasonably nor arbitrarily withhold such review and approval. Owner will require any Agreement with a subsequent co -locating tenant to contain language which holds new tenant liable for any and all damages to Tenant's existing equipment and use thereof, and will require the new tenant to hold the Owner harmless from any claims for damages caused by new tenant. 10. Utilities and Access. Tenant shall have the right to install utilities, to be separately metered at Tenant's expense, and to improve present utilities on the Premises, including but not limited to the installation of emergency power generators. Tenant shall have the right to place utilities on a formal utility easement specifically given by Owner for that purpose in order to service the Equipment throughout the Initial Term or any Renewal Term of this Agreement. All utilities servicing Tenant's equipment and facilities shall be placed underground. Tenant shall be responsible for all utility connection charges, and all utility use charges, for electricity or any other utility used by Tenant. Tenant shall have access to the Premises and the Equipment at all times, 24 hours each day, through the access drive presently existing on the Easement. Owner shall maintain the access drive in good condition throughout the Initial Term of this Agreement or any Renewal Term. 11. Termination. Except as otherwise provided, this Agreement may be terminated, without any penalty or ftuther liability, immediately upon written notice or as otherwise provided below, as follows: (a) By either party upon a default of any covenant or term of this Agreement by the other party which default is not cured within 30 days of receipt of written notice of default (without, however, limiting any other rights available to the parties pursuant to any other provisions of this Agreement); or (b) By Tenant if it is unable to obtain or maintain any license, permit or other Permits necessary to the construction and operation of the Equipment or Tenant's business or intended use of the Premises; or (c) By Tenant if the Premises or Equipment is damaged by casualty so as to hinder the effective use of the Equipment; or in the event that interference, whether or not from Owner's activities or any other source, to transmissions or signals from the Communications Facility, in Tenant's judgment, may not be adequately corrected or eliminated by Tenant; (d) By Tenant, if, in Tenant's reasonable judgment, network design or technology changes render the Communications Facility obsolete or unnecessary; or (e) By Tenant upon six months written notice to Owner. -4- r 12. Structural Analysis. (a) Tenant shall be solely responsible to ensure that Tenant's installation of the Equipment shall not significantly effect the structural integrity of the Water Tower, and that no such damage results to the Water Tower due to installation of the Equipment. Owner agrees to famish Tenant promptly upon Tenant s request, with true and accurate copies of all analyses performed on the Water Tower within the two years preceding the request and Tenant s attachment of antennas or Equipment on the Water Tower. In the absence of such an analysis or if the most recent analyses are insufficient for Tenant's needs, or if requested to do so by the Owner, Tenant shall be responsible for obtaining a new analysis by a structural engineer licensed to do business in the State of Arkansas. Tenant shall furnish a copy of the analysis to Owner. The cost of the new analysis shall be paid solely by Tenant. If reinforcements to the Water Tower are required for Tenant's use, Tenant shall submit plans to the Owner, prepared by an engineer registered to do business in the State of Arkansas, for such reinforcements. Upon approval by the Owner, Tenant shall proceed with such reinforcements at Tenant's sole cost after review and approval of the plans by the Owner. (b) Owner shall require any subsequent tenants toTperform a tower analysis on the Water Towerby a licensed structural engineer indicating that attachment of the Additional Antennas to the Water Tower does not impair the structural integrity of the Water Tower and will not materially diminish the Water Tower's function or useful life. All such tower analyses shall be in compliance with current industry standards. 13. Taxes. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, Tenant's Equipment. Tenant shall not pay real property taxes or other fees and assessments attributable to the Water Tower or the Premises. 14. Liability Insurance. Owner, as a sovereign municipality, is not required to provide liability insurance. 15. Environmental Matters. Owner represents that, to Owner's best knowledge, no Hazardous Materials are presently located on the Premises or Easement, and Owner agrees that it will provide, at no cost or expense to Tenant, for the removal of any Hazardous Materials if Hazardous Materials are present on the Premises or the Easement prior to the date of this Agreement or if Hazardous Materials are brought onto the Premises or Easement by Owner, its agents, servants, employees, licensees, invitees or contractors. If after Tenant takes possession of the Premises Hazardous Materials are discovered to exist on, under or beneath the Premises, Tenant may terminate this Agreement and Tenant shall owe no further duties, obligations or liability to Owner. Tenant shall comply with all laws, ordinances, rules, orders or regulations applicable to Hazardous Materials. Tenant shall not use the Premises or the Easement for treatment, storage, transportation to or from, use or disposal of Hazardous Materials (other than petroleum products necessary for the operation of an emergency electrical generator to serve the Equipment). Tenant shall be responsible for any expense incident to the abatement or compliance with the requirements of any federal, state or local statutory or regulatory requirements caused, directly or indirectly, by the activities of the Tenant or Tenant's agents, employees or contractors. As used in this Agreement, "Hazardous Materials" shall mean any and all polychlorinated byphenyls, petroleum products, asbestos, urea formaldehyde and other hazardous or toxic materials, wastes or substances, any pollutants, and/or contaminants, or any other similar substances or -5- materials which are defined or identified as such in or regulated by any federal, state or local laws, rules or regulations (whether now existing or hereinafter enacted) pertaining to environmental regulations, contamination, cleanup or any judicial or administrative interpretation of such laws, rules or regulations or any substance that after release into the environment and upon exposure, ingestion, inhalation or assimilation, either directly from the environment or directly through food chains will or may reasonably be anticipated to cause death, disease, behavior abnormalities, cancer or genetic abnormalities. 16. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, by certified mail, return receipt requested, orby overnight service having a record of receipt to the addresses indicated below: If to Owner, to: City of Fayetteville 113 West Mountain Street Fayetteville, Arkansas 72701 (501) 575-8330 Tax Identification No. 716018462 If to Tenant, to: ALLTEL Communications, Inc. One Allied Drive Little Rock, AR 72202 Attn: Property Management Dept. 17. Successors Title and Quiet Enjovment. parties, their Owner represents and warrants that it has the full right, power and authority to execute and enter into this Agreement. Owner further warrants that Tenant shall have the quiet enjoyment of the Premises during the term of this Agreement. 18. Owner's Representations and Warranties. Tenant acknowledges that the primary use of the tower is that of a municipal Water Tower. Owner makes no representations or warranties concerning the suitability of the Premises for Tenant's intended use as a site for the transmission and receipt of wireless communication signals. 19. Assignment. Tenant may not assign its interest in this Agreement without prior written approval by Owner, not to be unreasonably withheld, except that Tenant may assign its rights and obligations under this Agreement to an Affiliate. 20. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties, their respective heirs, successors, personal representatives and assigns. 21. Compliance with Laws. All installations and operations in connection with this Agreement by either party shall be conducted in accordance with all applicable rules and regulations of the Federal Communications Commission, Federal Aviation Agency, and any other applicable -6- federal, state and local laws, codes and regulations. Tenant is solely responsible for the licensing, operation and maintenance ofTenant's Equipment, including, without limitation, compliance with any terms of its Federal Communications Commission license with respect to tower light observation and any notification to the Federal Aviation. Administration in that regard. Tenant's Equipment, transmission lines, and any related devises, and the installation, maintenance and operation thereof, shall not damage the Water Tower or any property or properties adjoining, or interfere with the use of the Water Tower and the remainder of the Premises, by Owner or others, and Tenant shall defend, indemnify and hold harmless Owner from any such damage. 22. Holding Over. In the event Tenant remains on the Water Tower and in possession of the shelter or building on the Premises after the expiration of the Initial Term or a Renewal Term without executing a new Agreement, Tenant shall occupy the Premises month-to-month, subject to all of the terms and conditions of this Agreement insofar as so consistent. 23. Estoppel. Each party agrees to furnish to the other, within 10 days after request, such truthful estoppel information as the other may reasonably request. 24. Miscellaneous. (a) This Agreement constitutes the entire agreement and understanding of Owner and Tenant and supersedes all offers, negotiations and other agreements. Any amendments to this Agreement must be in writing and executed by Owner and Tenant. (b) If either Owner or Tenant is represented by a real estate broker or agent in this transaction, that party shall be fully responsible for any fees or commission due such broker or agent and shall hold the other party harmless from any such claims arising from execution of this Agreement. (c) Owner agrees to cooperate with Tenant in executing any documents necessary to protect Tenant's rights under this Agreement or Tenant's use of the Premises. Tenant may record this Agreement or a Memorandum of Agreement executed by all parties. (d) This Agreement shall be construed in accordance with the laws of the state in which the Premises are located. (e) If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. (f) Each of the undersigned warrants that he or she has the full right, power and authority to execute this Agreement on behalf of the party indicated for the purposes herein contained. THIS WATER TOWER ATTACHMENT AGREEMENT CONSTITUTES A PROPOSAL BY TENANT TO LEASE SPACE ON OWNER'S PREMISES AND SHALL NOT BE BINDING UPON TENANT UNTIL SUCH TIME AS IT IS EXECUTED ON BEHALF OF TENANT BY TENANT'S AUTHORIZED REPRESENTATIVE AND DELIVERED TO OWNER. -7- IN WITNESS WHEREOF, Owner and Tenant have executed Agreement as of the date year first written above. OWNER: City of Fayetteville Witness(es): By: GTS C t� Title: MAyLar7 S• TENANT: Fayetteville 144k Limited Partnership, by its Witness(es) general partner, ALLTEL Communications, Inc. By: 6U411 � Title: ACKNOWLEDGMENTS STATE OF I, , COUNTY OF a Notary Public of the County and State aforesaid, certify that personally appeared before me this day and acknowledged that he/she is of , a eerperatiea, and that by authority duly given and as the act of the said corporation, the foregoing instrument was signed in its name. WITNESS my hand and notarial seal this _ day of 19_. Notary Public My Commission Expires: SEAL STATE OF-kVK"c.&5z , COUNTY OF-YUUOT�1q I, a Notary Public of the County and State aforesaid, certify that '30F�i-o+J personaAy appeared before me this day and acknowledged that he/she is p��;oF�j of �}usw,wUrJwAcio�S �rJc,a pG�q lf}F� corporation, and that by authority duly given and as the act of the said corporation, the foregoing instrument was signed in its name. OP WITNESS my hand and notarial seal this � day of19 N Public �`'�''-" My Commission Expires: / 2000 SE ^f -8- EXHIBIT "A" LEGAL DESCRIPTION OF .PROPERTY The property referred to herein as Premises is located within the parent parcel described as follows: [Insert legal description from vesting deed] The Water Tower is located on the parent parcel description. Owner and Tenant agree that within one hundred eighty (180) days following the full execution of the Agreement, Tenant shall attach Exhibit B which shall be include an "as built' survey and site plan. EXHIBIT "B" SITE PLAN and EQUIPMENT LIST Insert Tenant's Site Plan Equipment Shelter to house transmission cables & equipment to be located upon concrete pad located as shown on the site drawing. Cabinet size shall be approx. _" wide X _" tall X _" deep (see diagram). Antennas, each _" X ' X _"; Coaxial cable that connects the cabinet to the antennas; Electrical power panel and cable; Telephone panel and cable. AGENDA REQUESPF'1&4IV'QEQQQD XX AGENDA REQUEST CA&KOF S*Et 91 1999 CITY OF FAYETTEVILLE CITY CLERK'S OFFICE FROM: Don Bunn Public Wks Admin Public Works Name Division Department ACTION REQUIRED: Approval of an agreement with MSA Limited Partnership (Alltel Communications) for lease of tower space on the Gully Road Water Tank for the purpose of installing radio communications equipment and appurtenances (building and antenna). COST TO CITY: $ -0- zewc Cost -This Request Category/Project Budget Category/Project Name 5406.OJ40-4450-x0 Account Number Funds Used To Date /I pp Program Name rr KJ�A i ScWcn h'J� Project Number Funds Remaining Fund Category BUDGET/CONTRACT REVIEW: Budgeted em Budget Adj . Attached L t Budget Coordinator Date Administrative Services Director Date J a* A counti g nag Date ADA Coordina r Date City Attorney Date Internal Auditor Date � U L" 7-01%-91 Purchasina Officer Date STAFF RECOMMENDATION: It is the recommendation of the Staff that the Council approve the attached agreement with MSA Limited Partnership for installation of radio communications equipment and appurtenances at the Gully ad Water Tank G0difio-nCd G'rl BlpRovAL of T%G Vt?5N/94rb#J COUouTY 7/z6�Ir• �c�niu� � s ublic w ks Director Date Cross Reference ✓-��l'G Cjy New Item: Yes No lartn).Drctor5 Date Prev Ord/Res #: in e ce Director Qate G Orig Contract Date: Ma r Date COMMENT SHEET Project Communications Site Agreement, Gully Road Water Tank Note to Reviewers: This agreement has been reviewed and approved by the City Attorney's office. There are no expenditure of funds involved in agreement, the City will receive revenues as noted in the contract. The cell tower installation does not require approval of either the City Planning Commission or the County Planning Commission. A signed agreement from MSA Limited Partnership will be forwarded to the City prior to Council approval. FAYETTEVI LLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE August 25, 1999 To: Fayetteville City Council From: Don Bunn, Assistant Public Works Director, xff� Thru: Charles Venable, Public Works Director O.Of Fred Hanna, Mayor Subject: Non -Exclusive Lease Agreement MSA Limited Partnership (Alltel Communications) Attached for your review and approval is a Communications Site Agreement with MSA Limited Partnership (by its general partner, Alltel Communications). The purpose of the agreement is to allow certain appurtenances (equipment building or shelter) and radio communications equipment (cellular antenna) to be constructed and/or installed at the Gully Road Water Tank. The lease agreement is a nonexclusive lease and extends for an initial five (5) year term. After that time the lessee would have the right to extend.the lease period for another five year term under the same terms except for the lease amount. The lease amount due the City is $1000.00 per month for the initial terms of five years and $1,200.00 per month for the next five year term. The rental amount for a third five (5) year lease period would be $1,440.00 per month provided the City and MSA agrees upon the lease extension. In the opinion of the City Staff, this agreement adequately protects the City's interest in the site and will not interfere with the City's full use of the site and water tank. The City may consider allowing other interests (governmental or private) to use the site for the same purpose without invalidating this agreement as long as no interference results from the use thereof. It is the recommendation of the Staff that the Council approve this Communications Site Agreement with MSA Limited Partnership for the purpose of installing radio communications equipment at the site and on the water tank, conditioned on the approval of the Washington County Planning Office. FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPOND To: Don Bunn, Assistant Public Works Director From: Heather Woodruff, City Clerk Date: October 12, 1999 Attached is a copy of the resolution approving an agreement with MSA Limited for the purpose of installing radio communications equipment. The original will be microfilmed and filed with the City Clerk. CC. Yolanda Fields, Internal Auditor P D m,. e S,re WATER TOWER ATTACME H COMMUNICATION SITE AGREEMENT (With 90 days Due Diligence Period) _ MIC]I O FILMED THIS WATER TOWER ATTACHMENUNICATION SITE AGREEMENT ("Agreement") is entered into this a day of 1999, by and between the City of Fayetteville, ("Owner") and Fayetteville MSA Limited Partnership, by its general partner, ALLTEL Communications, Inc., ("Tenant"). 1. Grant. Subject to the following terms and conditions, Owner hereby grants to Tenant the nonexclusive right to install, maintain, operate and remove radio communications equipment and appurtenances on Owner's tower (the "Water Tower") located on the property described in Exhibit "A" (the "Premises"), and leases to Tenant a portion of the Premises for construction and occupancy of an equipment shelter or building to house Tenant's equipment on the Premises as more particularly described in Exhibit "A". Owner shall continue to have the right to occupy the Premises and operate the Water Tower and to grant others rights to occupy or utilize the Premises and the Water Tower at Owner's sole discretion. Owner also grants to Tenant a nonexclusive easement during the term of this Agreement for ingress, egress and regress and for the installation and transmission of utilities on property described on attached Exhibit "B" ("Easement"). Tenant may install equipment, personal property, improvements, alterations or fixtures as listed on Exhibit "C" (the "Equipment"), or as Owner may otherwise approve, such approval not to be unreasonably withheld, conditioned or denied. Any personal property owned by Tenant, whether or not fixed or attached to the Premises or Water Tower, shall remain the property of Tenant prior to termination of this Agreement without regard to whether it appears on Exhibit "C". 2. Use. Tenant shall use the Equipment and the Premises for the purpose of constructing, installing, maintaining, improving and operating, at Tenant's expense, a communications facility, including antennae, equipment shelter or building, platforms, cable runs and incidental uses of the Water Tower. Tenant shall be solely responsible for securing any and all building permits and approvals, zoning changes or approvals, variances, use permits, and other governmental permits from applicable governmental authorities, including any Federal Aviation Administration approval (collectively, "Permits") prior to any construction on the Premises. Owner agrees to reasonably cooperate with Tenant in obtaining the Permits, and copies of the Permits shall be provided to Owner upon request. Tenant shall promptly pay all costs and expenses and shall not cause or permit any lien to be created against the Premises. 3. Term. The term of this Agreement shall be five (5) years, commencing upon the earlier date of Commencement of Installation of Equipment on the Water Tower or ninety (90) days from the date of full execution of this Agreement, (the "Commencement Date") and terminating at midnight on , 20_ ("Initial Term"). Notice of the Commencement of Installation of Equipment on the Water Tower for purposes of determining the Commencement Date shall be made pursuant to the Notice provisions of Paragraph 16 hereof in a form substantially the same as "Notification of Commencement of Installation of Equipment" attached hereto as Exhibit 1011. -1- 4. Renewal Term(s). Tenant shall have the right to extend this Agreement for one (1) additional term of five (5) years ("Renewal Term") on the same terms and conditions as set forth in this Agreement except that the Rent shall be increased as specified in Paragraph 5 below. This renewal shall be term automatic unless Tenant notifies Owner of Tenant's intention not to renew. Upon expiration of the first Renewal Term (at the end of ten years total), Owner shall have the right not to renew the Agreement, or to renegotiate the terms and conditions thereof, provided the Tenant shall have been notified in writing one hundred and twenty (120) days prior to the expiration of the then current term of Owner's intent of non -renewal or desire to renegotiate the terms and conditions thereof. 5. Rent. (a) Initial Term. Beginning on the Commencement Date, Tenant shall pay to Owner as rental the sum of One Thousand and No/100 DollarsX$1,000.00) per month ("Rent") which shall include Tenant's irrevocable right to use and occupy the ground space surrounding Owner's Water Tower. Rent payments shall be made monthly in advance to the City of Fayetteville at the notice address as specified below and shall be prorated for any partial month at the commencement or termination of this Agreement, based on the number of days in that month. (b) Renewal Terms. In the event that Tenant elects to renew this Agreement as provided in paragraph 4, the rent for the first renewal term shall be $1200.00 per month and the rent for the second renewal term shall be $1440.00 per month. 6. Water Tower Maintenance. (a) Owner represents and warrants that its operation of the Water Tower, exclusive of Tenant's Equipment, including the lighting system, meets and will be maintained in accordance with all applicable laws, rules and regulations, including, without limitation, rules and regulations of the Federal Communications Commission, Federal Aviation Administration and all applicable local codes and regulations. The costs of maintaining the Water Tower, including painting of the exterior and finishing or painting the interior of the Water Tower, shall be borne by Owner, with the exception of Tenant's antennae and Equipment. In the event damage is caused to Tenant's equipment or personal property by Owner's agents, or employees, the cost of repairing such damage shall be borne by Owner who shall, upon due notice and proof of loss provided by Tenant, timely reimburse Tenant the cost of repairing such damage. (b) Tenant shall maintain its antennae, transmission lines, equipment and equipment shelter in good operating condition. In the event damage is caused to the Water Tower by Tenant or Tenant's agents, employees, contractors or subcontractors, either during the initial installation of the equipment or subsequent operational, construction, or maintenance activities, the cost of repairing such damage shall be borne by Tenant who shall timely repair any such damage. The cost of repair may include, but would not be limited to the cost of lost water, disinfection, public notifications, and re -painting. Should Tenant fail to timely make repairs required by this Agreement, Owner may, at Owner's option, make such repairs and Tenant shall promptly reimburse Owner for its costs and expenses incurred in such repair. Upon termination or expiration of this License, Tenant -2- shall remove its Equipment from the Water Tower and repair damage, if any, to the Water Tower caused by the removal of Tenant's Equipment, normal wear and tear excepted. Tenant's activities and operations and the Equipment shall not interfere with Owner's maintenance, repair and operation of the Water Tower and its lighting system. _ 7. Due Diligence Period. Tenant's obligation to perform under this Agreement shall be subject to and conditioned upon: (a) Tenant's securing appropriate approvals for Tenant's intended use of its Equipment on the Premises from the Federal Communications Commission, the Federal Aviation Administrator, and any other federal, state or local regulatory agency having jurisdiction over Tenant s proposed use of the Equipment; (b) Tenant's obtaining, at its option, a title report or commitment for a leasehold title policy from a title insurance company of Tenant's choice which must show no defects or restrictions of title or any liens or encumbrances which may adversely affect Tenant's use of the Premises or Tenant's ability to obtain financing; (c) Tenant's obtaining, at its option, a survey and analysis tests which must show no defects which, in the opinion of the Tenant may adversely affect Tenant's use of the Premises; (d) Tenant's approval of the condition of the Premises, which may be subject to, at Tenant's option, an environmental audit of the Premises performed by an environmental consulting firm of Tenant's choice; and (e) Tenant's determination that the Water Tower is structurally appropriate for Tenant's needs. Tenant shall act with due diligence within ninety (90) days of the date of execution hereof to obtain all governmental approvals necessary and to obtain any reports or analyses as set forth above which are necessary for Tenant to perform under this License. In the event that Tenant determines during the due diligence period that the Water Tower and the Premises are, in Tenant's opinion, unacceptable to Tenant, then this Agreement shall terminate and be of no further force or effect. 9. Interference. Tenant agrees to install Equipment of types and generating frequencies which will not cause interference to transmissions or signals from other users of the Water Tower as may be already in place on the Water Tower. At Owner's request, Tenant shall provide a detailed interference analysis showing potential conflicts between Tenant's frequencies and those of the other users already in place on the Water Tower. In the event the Equipment causes such interference, Tenant will take all steps necessary to correct and eliminate the interference. If the interference cannot be eliminated within 48 hours after receipt of written notice from Owner to Tenant (Notice Date), Tenant shall temporarily. disconnect the electric power and shut down the Equipment (except for intermittent operation for the purpose of testing, after performing maintenance, repair, modification, replacement, or other action taken for the purpose of correcting such interference) and if such interference is not corrected within 30 days after receipt of the written notice, Tenant agrees to remove the Equipment from the Water Tower and the Premises and this Agreement shall terminate -3- as if by expiration. After the Equipment has been installed, Owner will require the proposed new co - locating tenant to develop the proper documentation showing that its proposed installation and the use thereof will not interfere with the existing tenant(s) equipment and use of the tower prior to the execution of an agreement to allow the subsequent co -location. The existing tenant(s) shall review and approve such documentation, but shall not unreasonably nor arbitrarily withhold such review and approval. Owner will require any Agreement with a subsequent co -locating tenant to contain language which holds new tenant liable for any and all damages to Tenant's existing equipment and use thereof, and will require the new tenant to hold the Owner harmless from any claims for damages caused by new tenant. 10. Utilities and Access. Tenant shall have the right to install utilities, to be separately metered at Tenant's expense, and to improve present utilities on the Premises, including but not limited to the installation of emergency power generators. Tenant shall have the right to place utilities on a formal utility easement specifically given by Owner for that purpose in order to service the Equipment throughout the Initial Term or any Renewal Term of this Agreement. All utilities servicing Tenant's equipment and facilities shall be placed underground. Tenant shall be responsible for all utility connection charges, and all utility use charges, for electricity or any other utility used by Tenant. Tenant shall have access to the Premises and the Equipment at all times, 24 hours each day, through the access drive presently existing on the Easement. Owner shall maintain the access drive in good condition throughout the Initial Term of this Agreement or any Renewal Term. 11. Termination. Except as otherwise provided, this Agreement may be terminated, without any penalty or further liability, immediately upon written notice or as otherwise provided below, as follows: (a) By either party upon a default of any covenant or term of this Agreement by the other party which default is not cured within 30 days of receipt of written notice of default (without, however, limiting any other rights available to the parties pursuant to any other provisions of this Agreement); or (b) By Tenant if it is unable to obtain or maintain any license, permit or other Permits necessary to the construction and operation of the Equipment or Tenant's business or intended use of the Premises; or (c) By Tenant if the Premises or Equipment is damaged by casualty so as to hinder the effective use of the Equipment; or in the event that interference, whether or not from Owner's activities or any other source, to transmissions or signals from the Communications Facility, in Tenant's judgment, may not be adequately corrected or eliminated by Tenant; (d) By Tenant, if, in Tenant's reasonable judgment, network design or technology changes render the Communications Facility obsolete or unnecessary; or (e) By Tenant upon six months written notice to Owner. -4- 12. Structural Analysis. (a) Tenant shall be solely responsible to ensure that Tenant's installation of the Equipment shall not significantly effect the structural integrity of the Water Tower, and that no such damage results to the Water Tower due to installation of the Equipment. Owner agrees to furnish Tenant promptly upon Tenant s request, with true and accurate copies of all analyses performed on the Water Tower within the two years preceding the request and Tenant s attachment of antennas or Equipment on the Water Tower. In the absence of such an analysis or if the most recent analyses are insufficient for Tenant's needs, or if requested to do so by the Owner, Tenant shall be responsible for obtaining a new analysis by a structural engineer licensed to do business in the State of Arkansas. Tenant shall furnish a copy of the analysis to Owner. The cost of the new analysis shall be paid solely by Tenant. If reinforcements to the Water Tower are required for Tenant's use, Tenant shall submit plans to the Owner, prepared by an engineer registered to do business in the State of Arkansas, for such reinforcements. Upon approval by the Owner, Tenant shall proceed with such reinforcements at Tenant's sole cost after review and approval of the plans by the Owner. (b) Owner shall require any subsequent tenants to�perform a tower analysis on the Water Tower by a licensed structural engineer indicating that attachment of the Additional Antennas to the Water Tower does not impair the structural integrity of the Water Tower and will not materially diminish the Water Tower's function or useful life. All such tower analyses shall be in compliance with current industry standards. 13. Taxes. Tenant shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, Tenant's Equipment. Tenant shall not pay real property taxes or other fees and assessments attributable to the Water Tower or the Premises. 14. Liability Insurance. Owner, as a sovereign municipality, is not required to provide liability insurance. 15. Environmental Matters. Owner represents that, to Owner's best knowledge, no Hazardous Materials are presently located on the Premises or Easement, and Owner agrees that it will provide, at no cost or expense to Tenant, for the removal of any Hazardous Materials if Hazardous Materials are present on the Premises or the Easement prior to the date of this Agreement or if Hazardous Materials are brought onto the Premises or Easement by Owner, its agents, servants, employees, licensees, invitees or contractors. If after Tenant takes possession of the Premises Hazardous Materials are discovered to exist on, under orbeneath the Premises, Tenant may terminate this Agreement and Tenant shall owe no further duties, obligations or liability to Owner. Tenant shall comply with all laws, ordinances, rules, orders or regulations applicable to Hazardous Materials. Tenant shall not use the Premises or the Easement for treatment, storage, transportation to or from, use or disposal of Hazardous Materials (other than petroleum products necessary for the operation of an emergency electrical generator to serve the Equipment). Tenant shall be responsible for any expense incident to the abatement or compliance with the requirements of any federal, state or local statutory or regulatory requirements caused, directly or indirectly, by the activities of the Tenant or Tenant's agents, employees or contractors. As used in this Agreement, "Hazardous Materials" shall mean any and all polychlorinated byphenyls, petroleum products, asbestos, urea formaldehyde and other hazardous or toxic materials, wastes or substances, any pollutants, and/or contaminants, or any other similar substances or -5- materials which are defined or identified as such in or regulated by any federal, state or local laws, rules or regulations (whether now existing or hereinafter enacted) pertaining to environmental regulations, contamination, cleanup or any judicial or administrative interpretation of such laws, roles or regulations or any substance that after release into the environment and upon exposure, ingestion, inhalation or assimilation, either directly from the environment or directly through food chains will or may reasonably be anticipated to cause death, disease, behavior abnormalities, cancer or genetic abnormalities. 16. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, by certified mail, return receipt requested, or by overnight service having a record of receipt to the addresses indicated below: If to Owner, to: City of Fayetteville 113 West Mountain Street Fayetteville, Arkansas 72701 (501) 575-8330 Tax Identification No. 716018462 If to Tenant, to ALLTEL Communications, Inc. One Allied Drive Little Rock, AR 72202 Attn: Property Management Dept. 17. Title and Quiet Enjoyment. Owner represents and warrants that it has the full right, power and authority to execute and enter into this Agreement. Owner further warrants that Tenant shall have the quiet enjoyment of the Premises during the term of this Agreement. 18. Owner's Representations and Warranties. Tenant acknowledges that the primary use of the tower is that of a municipal Water Tower. Owner makes no representations or warranties concerning the suitability of the Premises for Tenant's intended use as a site for the transmission and receipt of wireless communication signals. 19. Assignment. Tenant may not assign its interest in this Agreement without prior written approval by Owner, not to be unreasonably withheld, except that Tenant may assign its rights and obligations under this Agreement to an Affiliate. 20. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties, their respective heirs, successors, personal representatives and assigns. 21. Compliance with Laws. All installations and operations in connection with this Agreement by either party shall be conducted in accordance with all applicable rules and regulations of the Federal Communications Commission, Federal Aviation Agency, and any other applicable -6- federal, state and local laws, codes and regulations. Tenant is solely responsible for the licensing, operation and maintenance ofTenant's Equipment, including, without limitation, compliance with any terms of its Federal Communications Commission license with respect to tower light observation and any notification to the Federal Aviation Administration in that regard. Tenant's Equipment, transmission lines, and any related devises, and the installation, maintenance and operation thereof, shall not damage the Water Tower or any property or properties adjoining, or interfere with the use of the Water Tower and the remainder of the Premises, by Owner or others, and Tenant shall defend, indemnify and hold harmless Owner from any such damage. 22. Holding Over. In the event Tenant remains on the Water Tower and in possession of the shelter or building on the Premises after the expiration of the Initial Term or a Renewal Term without executing a new Agreement, Tenant shall occupy the Premises month-to-month, subject to all of the terms and conditions of this Agreement insofar as so consistent. 23. Estoppel. Each party agrees to famish to the other, within 10 days after request, such truthful estoppel information as the other may reasonably request. 24. Miscellaneous. (a) This Agreement constitutes the entire agreement and understanding of Owner and Tenant and supersedes all offers, negotiations and other agreements. Any amendments to this Agreement must be in writing and executed by Owner and Tenant. (b) If either Owner or Tenant is represented by a real estate broker or agent in this transaction, that party shall be fully responsible for any fees or commission due such broker or agent and shall hold the other party harmless from any such claims arising from execution of this Agreement. (c) Owner agrees to cooperate with Tenant in executing any documents necessary to protect Tenant's rights under this Agreement or Tenant's use of the Premises. Tenant may record this Agreement or a Memorandum of Agreement executed by all parties. (d) This Agreement shall be construed in accordance with the laws of the state in which the Premises are located. (e) If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. (f) Each of the undersigned warrants that he or she has the full right, power and authority to execute this Agreement on behalf of the party indicated for the purposes herein contained. THIS WATER TOWER ATTACHMENT AGREEMENT CONSTITUTES A PROPOSAL BY TENANT TO LEASE SPACE ON OWNER'S PREMISES AND SHALL NOT BE BINDING UPON TENANT UNTIL SUCH TIME AS IT IS EXECUTED ON BEHALF OF TENANT BY TENANT'S AUTHORIZED REPRESENTATIVE AND DELIVERED TO OWNER -7- IN WITNESS WHEREOF, Owner and Tenant have executed Agreement as of the date year first written above. OWNER: City of Fayetteville Witnesses By: Title:p/L TENANT: Fayetteville 1�A. Limited Partnership, by its general partner, ALLTEL Communications, Inc. Witness(es) By: Title ACKNOWLE GMENTS ,, STATE OF A COUNTY OF (Nj45/j-iriU n A) I, LG 5 a Notary Public of the County and State aforesaid, certify that �EDHA,NN, Personally appeared before me this day and acknowledged that hefsi�e is of_��E?Y2UnLE,g%Z aMUAll4Pfk,Tj -earperatiea,and that by autbority duly given and as the act of the said corporation, the foregoing instrument was signed in its name. WITNESS my hand and notarial seal this 20 day ofQc�, 199q otary Public`�`Aueu�O`". My Commission Expires:—/— D$ VP " "' •. SEAL y�' N07,4q `t(P STATE OF-ky4,NsAs COUNTY OF —PUt Az1C a?'; At Ic _••....... •_n�.S '�i:-vp y r�, I,y,ch , a Notary Public of the County and State aforesaid;"'„tSvi DoE sA�A� persona y appeared before me this day and acknowledged that he/she is 't ;o of Cw 10U &fhi w -K tNL, a n LuptWAF+. corporation, and that by authority duly given and as the act of the said corporation, the foregoing instrument was signed in its name. _���,_ H Q '� WITNESS my hand and notarial seal this4 day of - ✓ 19� -� ✓ O; NOTAC N Public PUBLIC My Commission Expires: / 2050 SE S ••....._.•-C� cou -8- EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY The property referred to herein as Premises is located within the parent parcel described as follows: [Insert legal description from vesting deed] The Water Tower is located on the parent parcel description. Owner and Tenant agree that within one hundred eighty (180) days following the full execution of the Agreement, Tenant shall attach Exhibit B which shall be include an "as built" survey and site plan. EXHIBIT "B" SITE PLAN and EQUIPMENT LIST Insert Tenant's Site Plan Equipment Shelter to house transmission cables & equipment to be located upon concrete pad located as shown on the site drawing. Cabinet size shall be approx. _" wide X _" tall X _" deep (see diagram). Antennas, each _" X ' X '; Coaxial cable that connects the cabinet to the antennas; Electrical power panel and cable; Telephone panel and cable.