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HomeMy WebLinkAbout01-00 RESOLUTIONRESOLUTION NO 1-00 • • MICROFILMED A RESOLUTION APPROVING AMENDMENT TO LEASE AGREEMENT WITH MT. SEQUOYAH, INC. FOR THE RIGHT TO SUBLEASE SPACE ON OR ABOVE THE WATER TANK. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS' Section 1 That the City Council hereby approves the Amendment to Lease Agreement with Mt. Sequoyah, Inc., fa:the right to sublease space on or above the water tank; 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 this day of January , 2000. .yy ; a ' (_-\e A ✓ on«V 1; •+ • ./ IP :Q Cyt •, 17 1 i,3,‘ ‘ Bv: sier � Gt//f•//✓. Heather Woodruff, City Cl- k APPROVE By: /An red Hanna, Mayor NAME OF FILE: ifi /c ( (,/ CROSS REFERENCE: fj//JJ, 5 46 rne.t) Date Contents of File Initials /DODO 46 - / &6 EXf%IRZT X 1 r/Jsrh,gs rj D1 -NSA) a,4t','/tv/. o fry' o'l iz/.4frtiii / /dOdil'irM /1-114 a 4 ��✓,�l .e_ re , .- ,04, .%-",;(2,' z SA %2 /x--77 ArdO it v ,.f(%7,, o /'L 0/ /SIM i_: Ala ynneAft/As .v zixtf(l1 lei //// / an ¢, U/ _Pvinatrr�J l 4mo_ &.) (5) f gC1 S 1 JJ Socera 1657/01, 697 AMENDMENT TO LEASE AGREEMENT (Mt. Sequoyah Tank Property) • EXHIBIT'A This AMENDMENT is executed this 7 Day of2000 by and between the City of Fayetteville, Arkansas, hereinafter celled "Lessee" and Mt. Sequoyah, Incorporated (formerly West Methodist Assembly) hereinafter called "Lessor". WHEREAS, the parties to agree to amend the Lease Agreement dated September 9, 1958 to allow sub -leasing of the property for certain purposes. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS contained herein, the parties agree as follows: 1. Right to Sub Lease Lessee shall have the right to sub lease space on the water tank and on, under, and over the grounds covered by this Lease Agreement to private or public entities for the purpose of erecting, maintaining, and operating communications equipment. Such equipment shall include, but shall not be limited to antennas, support buildings, utility lines, and emergency generators. The Lessor shall have the right to review and approve the leases, such review and approval not to be unreasonably withheld. 2 Rental Payments Lessee shall negotiate the amount of any rental payments for such communications equipment installation. Such amounts shall be consistent with the current market for rental of communications equipment space. The lease amounts to be charged for governmental agencies shall be a nominal amount and shall not be subject to the terms of Paragraph 3, Payments to Lessor. In addition, antennas or equipment owned by the City and installed for the use of the City shall not be subject to Paragraph 3. 3. Payments to Lessor Lessee shall pay to Mt. Sequoyah, Incorporated one- half (1/2) of rental amount charged by the City for communications equipment space. Such rental shall be paid to Mt. Sequoyah, Incorporated on a monthly basis. 4. Existing Communications Equipment All communications equipment existing on the water tank, and/or on the grounds thereof as of the date of this Amendment shall be exempted from its provisions, except that any new or renegotiated lease shall be governed by the provisions of this Amendment except as noted in Paragraph 2 for Lessor owned or governmental agencies for which only nominal lease payments are charged. 5. Effective Date This Amendment shall become effective upon its execution. • EDjY LEASE AGREEh{EN - 1 I•� Fr 12 1 [' IS7ij /VN0lA/NA.at0L- a -I57 M rim 0 Res /-0° MICROFILMED THIS LEASE AGREE MEVT, wade and entered inyp0git 1405k4g4 day of September, 1958, by and between the Board of Trustees of the Wegtm aeftist Assembly, hereinafter called Lessors, and the City of Fayetteville, a Municipal Corporation, hereinafter called Lessee, WITNESSETH: That Lessors hereby lease to Lessee and Lessee hereby leases from Lessors, for the purpose of using, constructing, maintaining, and operating a water storage tank together with the necessary water pipes, valves, controls and other necessary structures and appurtenances thereto essential to the operation of a water system and r elated governmental functions of the City of Fayetteville, Arkansas, the following described real estate situated in the City of Fayetteville, County of Washington and State of Arkansas, to -wit: Se'/lJG 1S^C-1 0 V A part of the SEy, NE*, Section 15, Township 16 North, Range 30 West, described as beginning at a point on the West Line of Fast Skyline Drive which is 1049.2 feet South, and 221.9 feet East of the NW corner of said 40 acre tract; and running thence North 42° 20' West 100 feet, thence South 470 40' West 100 feet, thence South 42° 20' East 100 feet to the Priest line of East Skyline Drive, and thence along the curve of said Drive to the place of beginning, containing 0,23 acres more or less. That the term o this lease agreement shall be for ninety-nine (99) years commencing on'the A day of September, 1958, at an annual rental of One ($1,00) Dollar per year. IT IS FURTHER MUTUAJ•TY AGREED BY THE PARTIES HERETO AS FOLLOWS: 1. That Lessee shall have the right at Lessee's sole cost and expense to construct and maintain a rater storage tank, pipe line, valves, controls and Bich other structures as may be necessary in connection with the operation of the city rater system and governmental functions related thereto upon said above described real estate. 2. That Lessee, at its sole cost and expense, shall be permitted to fence said above described real estate for the public safety and protection. 3. That Lessee, at its sole cost and expense, shall have the right and privilege to replace, alter, add to and/or enlarge any or all of the structures which might be erected by Lessee upon said above described real estate. 4. Lessee shall comply with all of the requirements of al]. municipal, state and federal authorities now in force, or which may hereafter be in f orce, pertaining to the replacement, alteration, addition or change of arty d evice, control or equipment which might be required by such laws and/or regulations. Lessor agrees to permit all municipal and public utility companies to enter upon said abovedescribei real estate and to construct and erect such essential public utility facilities as may be required in connection with the operations of the water r stem structures con - structured, erected and located upon said above described real estate. 5. Lessee agrees to grade, landscape and plant such plants and/or shrubs and trees as nay be necessary to keep said above described real estate in a neat, trim and attractive condition in keeping with the remaining properties owned by Lessors surrounding said above described real estate. 6. Lessors agree to permit ingress and egress by Lessee, their agents, servants and/or individual controllers on, over, under and across the remaining real estate surrounding said above described real estate and to execute such permanent easements on, over, under, and across said above described real estate as well as the remaining real estate awned by lessors airrounding said above described real estate as may be necessary for the construction of rater mains to and from the water storage tank to be constructed during the year 1959 or thereafter on said above described real estate. BUM jib 158 7. Lessee shall have the right to remove all structures, piping, etc. erected by Lessee upon said above described real estate and to abandon said above described real estate at any time, at which time this lease agreement shall be deemed termfnatedand cancelled. Upon the written request of Lessor therefor Lessee shall remove all structures, Aping, etc., erected by Lessee upon said above described real estate. 8. This lease agreement shall be binding upon the parties hereto, their respective assigns and successors forever. ATTEST• sEcATAFer BOARD OF TRUSTEES of the WESTERN1ETHOD ST =S ae•LY mlb "ESID s BY CITY OF FAYETTEVILLE,, AMUNICIIPA.401 ALL ir MATCR 88UK RESOLUTION G 157 WHEREAS, the City of Fayetteville, Arkansas, a Municipal Corporation, is engaged in constructing additions and improvements to the waterworks system to the City of Fayetteville, Arkansas, as authorized by a majority vote of the citizens of said City at a special election held on the 27th day of May, 1958; and WHEREAS, the City of Fayetteville desires to construct a water storage tank upon certain real estate belonging to the Western Methodist Assembly; and WHEREAS, the City desires to lease from the Western Methodist Assembly, for a period of ninety-nine (99) years, the following described real estate, to -wit: A part of the SEa, N*, Section 15, Township 16 North, Range 30 West, described as beginning at a point on the West Line of East Skyline Drive which is 1049.2 feet South, and 221.9 feet East of the NW corner of said 40 acre tract; and running thence North 42° 201 West 100 feet, thence South 47° 401 West 100 feet, thence South 42° 201 East 100 feet to the West line of East Skyline Drive, and thence along the curve of said Drive to the place of beginning, containing 0.23 acres more or less. NOW, THEREFORE, BE IT RESOLVED, that the President and Secretary of the Board of Trustees of the Western Methodist Assembly, be and they are hereby authorized to execute a formal ninety-nine (99) year lease agreement, with the City of Fayetteville, Arkansas, for the location of a water storage tank and appurtenances thereto on the above described real estate. CERTIFICATE The undersigned Secretary of the Board of Trustees of the Western Methodist Assembly, hereby certifies that the foregoing is a true and correct copy of a resolution adopted at a special meeting of the Board of Trustees of the Western Methodist Assembly held on the / Y day of August, 1958, at which a quorum of the Board of Trustees was present. Witness my hand and seal this 1 day of September, 1958. Secre CERTIFICATE OF RECORD STATE OF ARBANI RS Washington County���' I• Loyd McConnell. Circuit Clerk and Ex.Officio Recorder far t9-sh!ngron County, do hereby certify that the annexed or tore- ❑• hr nws�trument was Filed ffof recon in my office on the•J,2day tantiagt ittiatl:octonPm, and the same Is :'mcrded In record ..J. b.at Vu mess my hand and seal this./0Ly of ..a-0 -44.....1947 Clrrui ..!orl<and J E:Cffico .,.:.eJ•.r BOARD OF TRUSTEES Mr. Scott Smith, Chairman of Board Rev. Wendell Dorman, Vice Chairman Dr. Ronald W. Gilbert, Secretary/Treasurer Dr. Donald Barnes Bishop Bna P. Blake Mrs. Marilyn Brown Dr. S Duane Bruce Dr. Nancy Carruth Dr. Earl B. Caner Dr. Robert D. Cousins Mrs. Mary -Jane Frazier Mrs Joa Hataway Rev. Jim Hawk Bishop Janice R. Huie Mr. Bill Hutcheson Dr. James Ireland Rev. Abraham Jackson Dr. David Kerr bb. John Lewis Dr. Thalia Mathenon Dr. Ed Matthews Mr. Jack Meadows Bishop Fritz Muni Rev. Larry Norman Rev. LarryPowell Mrs. Helen Rektor(' Mr. Jim Richards Rev. Harold G. Sassman A4. Ken Smith Bishop Dan E. Solomon Dr, Roslyn Sykes Dr. Richard D. Turner Rev. Cindy Watson Dr. D. Max Whitfield At Jerry Ruth Williams .Dr. Kenn Williams AMBASSADORS Dorothy & Eugene Westerhouse Loraine Gilbert Rev. & Mrs. Lyvune Bullard Rev. & Mrs. Mike Matins Rev. & Mrs. Tom Sullenger Rev. Jaya Holley Dr. Earl Caner Rev. Ben Jarvis Rev. Lou Neal Dr. & Mrs. Thurman Shriller Rev. Scott Penrod Rev. Fred Utr Rev. Ronald C. Croom Mrs. Nora Betancourt Rev. & Mrs. Jay Brown Rev. Phyllis Riney Rev. Nancy Schuster • Mount, Sequo Dr. Charles Wallace, President December 13, 1999 Ms. Alett Little Economic Development Director City of Fayetteville 4500 South School Avenue, Suite A Fayetteville, Alt 72701 Alett, Greetings and good wishes to you! Enclosed, please find an executed amendment to the lease agreement between Mount Sequoyah and the City of Fayetteville. Thank you for your insightful help in developing this agreement. As we reviewed the file related to the primary lease and amendments, we found only one item that we do not have on file. That is Exhibit D as related to the water tank attachment. We do have the draft agreement and request, when Exhibit D is available, you would please forward a copy to us. Thanks again and best wishes to you for the holidays. Enclosure: Lease CW: With best regards, 150 NW Skyline Drive • Fayetteville, AR 72701 • (501) 443-4531 • FAX (501) 443-4569 • Website: www.mountsequoyah.org • • email: mail®mountsequoyah.org_• • an Institution of the United Methodist Church • -� %s" • AMENDMENT TO LEASE AGREEMENT (Mt. Sequoyah((��Tank Propertyjj))� This AMENDMENT is executed this /-Day QA99ty and between the City o; Fayetteville, Arkansas, hereinafter called "Lessee" and Mt. Sequoyah, Incorporated (formaly West Methodist Assembly) herein called "Lessor" WHEREAS, the parties to agree to amend the Lease Agreement dated September 9, 1958 to allow sub -leasing of property for certain purposes. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS contained herein, the parties agree as follows: 1. Right to Sub Lease The Lessee shall have the right to sub lease space on the water tank and on, under, and over the grounds covered by this Lease Agreement to private or public entities for the purpose of erecting, maintaining, and operating communications equipment. Such equipment shall include, but shall not be limited to antennas, support buildings, utility lines, and emergency generators. The Lessor shall have the right to review and approve the leases, such review and approval not to be unreasonably withheld. 2. Rental Payments The Lessee shall negotiate the amount of any rental payments for such communications equipment installation. Such amounts shall be consistent with the current market rental of communications equipment space. The lease amounts to be charged for governmental agencies shall be a nominal amount and shall not be subject to the terms of Paragraph 11, Payments to Lessor. In addition, antennas or equipment owned by the City and installed for the use of the City shall not be subject to Paragraph 11. 3. Payments to Lessor The Lessee shall pay to the Lessor one-half (1/2) of rental amount charged by the Lessee for communications equipment space. Such rental shall be paid to the Lessor on a monthly basis. 4. Existing Communications Equipment All communications equipment existing on the water tank, and/or on the grounds thereof as of the date of this Amendment shall be exempted from its provisions, except that any new or renegotiated lease shall be governed by the provisions of this Amendment except as noted in Paragraph 10 for Lessor owned or governmental agencies for which only a nominal lease payments are charged. 5. Effective Date This Amendment shall become effective upon its execution. r • • IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment on the date stated above: l ATTEST: By. H ather Woodruff, City Clerk WITNESS: By•G`�"� Terri Johnston CITY OF FAYETTEVILLE, ARKANSAS LESSEE Bye MT. SEQUOYAH, INCORPORATED LESSOR Dr. Charles Wallace President r • • AMENDMENT TO LEASE AGREEMENT (Mt. Sequoyah Tank Property) This AMENDMENT is executed this V Day oft/vie/my , 2000 by and between the City of Fayetteville, Arkansas, hereinafter cLesseeand Mt. Sequoyah, Incorporated (formerly West Methodist Assembly) hereinafter called "Lessor". WHEREAS, the parties to agree to amend the Lease Agreement dated September 9, 1958 to allow sub -leasing of the property for certain purposes. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS contained herein, the parties agree as follows: 1. Right to Sub Lease Lessee shall have the right to sub lease space on the water tank and on, under, and over the grounds covered by this Lease Agreement to private or public entities for the purpose of erecting, maintaining, and operating communications equipment. Such equipment shall include, but shall not be limited to antennas, support buildings, utility lines, and emergency generators. The Lessor shall have the right to review and approve the leases, such review and approval not to be unreasonably withheld. 2. Rental Payments Lessee shall negotiate the amount of any rental payments for such communications equipment installation. Such amounts shall be consistent with the current market for rental of communications equipment space. The lease amounts to be charged for governmental agencies shall be a nominal amount and shall not be subject to the terms of Paragraph 3, Payments to Lessor. In addition, antennas or equipment owned by the City and installed for the use of the City shall not be subject to Paragraph 3. 3. Payments to Lessor Lessee shall pay to Mt. Sequoyah, Incorporated one- half (1/2) of rental amount charged by the City for communications equipment space. Such rental shall be paid to Mt. Sequoyah, Incorporated on a monthly basis. 4. Existing Communications Equipment All communications equipment existing on the water tank, and/or on the grounds thereof as of the date of this Amendment shall be exempted from its provisions, except that any new or renegotiated lease shall be governed by the provisions of this Amendment except as noted in Paragraph 2 for Lessor owned or governmental agencies for which only nominal lease payments are charged. 5. Effective Date This Amendment shall become effective upon its execution. • • • • IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment on the date stated above: CITY OF FAYETTEVILLE, ARKANSAS LESSEE ATTEST: By. / By -Filar. A r Woodruff, City Cle k WITNESS: By dtar, C, C MT. SEQUOYAH, INCORPORATED LESSOR BY - Dr Charles Wallace, President • • frit WI 0/4/ WATER TANK ATTACHMENT• COMMUNICATION SITE LEASE AGREM>f EI R O FI L MEIN (Mt. Sequoyah Water Tank) THIS WATER TANK ATTACHME COMMUNICATION SITE AGREEMENT ("Agreement") is entered into this day of iJ4 / »4 by and between the City of Fayetteville, ("Owner") and Southwest P. L.P. (S ' CS), an Oklahoma Limited Partnership, ("Tenant"). GENERAL TERMS AND CONDITIONS: 1. Grant. Subject to the terms and conditions contained within this Agreement, Owner hereby grants to Tenant the nonexclusive right to install, maintain, operate and remove radio communications equipment and appurtenances on the Owner's water tank (the "Water Tank") located on the property described in Exhibit "A" (the "Property"), and leases to Tenant a portion of the Property (the Premises) for construction and occupancy of an equipment shelter or building to house Tenant's equipment. The Property and the Premises are more particularly descnbed in Exhibit "A". Owner shall continue to have the right to occupy the entire Property and operate the Water Tank and to grant others rights to occupy or utilize the Premises and the Water Tank at Owner's sole discretion. ►00 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 in writing, 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 Tank, 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 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 as described in this Agreement. 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. Initial Term. The initial term of this Agreement shall be five (5) years, commencing upon the earlier date of Commencement of Installation of Equipment or ninety (90) days from the date of full execution of this Agreement, (the "Commencement Date") and terminating at midnight five years thereafter. Notice of the Commencement of Installation of Equipment on the Water Tank for purposes of determining the Commencement Date shall be made pursuant to the Notice provisions of Paragraph 15 of the General Terms of Conditions in a form substantially the same as "Notification of Commencement of Installation of Equipment" attached as Exhibit "D". • • IP 4. Renewal Tenn(s•Tenant shall have the nght to extend this Agreement for one (1) additional term of five (5) years ("First Renewal Term") on the same terns and conditions as set forth in this Agreement except that the Rent shall be increased as may be specified in the Special Terms and Conditions. This renewal shall be 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 renewal term. All renewal terms shall be for a five (5) year period. 5. Rent. The rental amount for the initial terms and subsequent renewal terms shall be as specified under Paragraph 1 of the Special Conditions of the Agreement. Rental shall begm on the Commencement Date, and rent payments shall be made monthly in advance and shall be due the first day of the month 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. Tenant will receive a monthly statement from Owner and payment shall be sent to the address contained in the monthly statement. Failure to pay the monthly rental payment within thirty (30) calendar days from its due date shall be considered a default. 6. Maintenance Owner represents and warrants that its operation of the Water Tank, 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 Tank, including painting of the exterior and finishing or painting the intenor of the Water Tank, 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. Tenant shall maintain its antennas, transmission lines, equipment and equipment shelter m good operating condition. In the event damage is caused to the Water Tank 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 bome 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 shall remove its Equipment from the Water Tank and repair damage, if any, to the Water Tank 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 Tank and. its lighting system. -2- • • 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 Tank 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 Tank and the Premises are, in Tenant's opinion, unacceptable to Tenant, then this Agreement shall terminate and be of no further force or effect. 8 Interference Tenant agrees to install Equipment of types and generating frequencies which will not cause interference to transmissions or signals from users of the Water Tank as may be already in place on the Water Tank or on the Premises. 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 Tank. If at any time Tenant's equipment or use of the equipment causes such interference, Tenant will take all steps necessary to con-ect and eliminate the interference. If the interference cannot be eliminated within 48 hours after receipt of written notice from Owner to Tenant, 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 Tank and the Premises and this Agreement shall terminate as if by expiration. 9. Subsequent Tenants Owner will require any 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 Tank pnor to the execution of an agreement to allow such co -location. The existing tenant(s) shall review and approve such documentation, but shall not unreasonably nor arbitrarily withhold such review and approval. -3- 3 • • The Owner will require any Agreement with a subsequent co -locating tenant to contain language which holds the new tenant liable for any and all damages to existing Tenant's equipment and use thereof which may occur as a result of the installation and operation of their equipment. 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 Tenn of this Agreement. All utilities servicing Tenant's equipment and facilities shall be placed underground. Tenant shall be responsible for all utility charges. Tenant shall have access to the Premises and the Equipment at all times, 24 hours each day, through the Owner's access drive. Owner shall maintain the access drive in good condition throughout the Initial Term of this Agreement and throughout any Renewal Term(s). 11. Termination This Agreement may be terminated by either party in accordance with the provisions of Paragraph 4, Renewal Terms. Additionally this Agreement maybe terminated on thirty (30) days prior written notice by either party upon a default of any covenant or tern thereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of such default. Any default which cannot be cured in sixty (60) days shall not be considered a default so long as the defaulting party has identified a cure which is satisfactory to the other party and is diligently pursuing such cure. Additionally, this Agreement may be terminated by the Tenant at any time for any reason or for no reason. Interference with pre-existing facilities shall be considered a default and shall come under the provisions of Paragraph without regard to the notice requirements of this paragraph: Upon termination of this Agreement Tenant shall immediately cease its operation, and shall have thirty (30) days from the termination date to remove all of Tenant's Equipment from the Premises and shall make whatever repairs to the Water Tank and grounds that might be necessary to leave the Premises in a good, clean, and neat condition. Such repairs shall but not be limited to, physical repair and painting of damaged areas of the Water Tank caused by the operation or removal of the antennae and other equipment, and repair to the grounds (seeding, mulching, etc) on and around building removal areas. 12. Structural Analysis Tenant shall be solely responsible to ensure that Tenant's installation of the Equipment shall not significantly effect the structural integrity of the Water Tank, and that no damage results to the Water Tank due to installation of the Equipment. Owner agrees to furnish Tenant, promptly upon Tenant s request, true and accurate copies of all analyses performed on the Water Tank within the two years preceding the request and Tenant s attachment of antennas or Equipment on the Water Tank. 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 -4- • Tenant. If reinforcementsto the Water Tank are required for Tenants 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. Owner shall require any subsequent tenants tobperform an analysis on the Water Tank by a licensed structural engineer indicating that attachment of the Additional Antennas to the Water Tank does not impair the structural integrity of the Water Tank and will not materially diminish the Water Tank's function or useful life. All such Tank 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 Tank or the Premises. 14. 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 Matenals 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 Halardous 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 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. 15. Notices All notices, requests, demands and other communications hereunder shall be in wnting 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 as given in the Special Conditions of this Agreement. -5- 16 Title and OuietEnjoyment Owner represents and warranis 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. 17. Representations and Warranties Tenant acknowledges that the primary use of the Tank is that of a municipal Water Tank 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. 18. Assignment Tenant may not assign its interest in this Agreement without pnor written approval by Owner, not to be arbitrarily or unreasonably withheld, except that Tenant may assign its nghts and obligations under this Agreement to an Affiliate. 19. 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. 20. 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 federal, state and local laws, codes and regulations. Tenant is solely responsible for the licensing, operation and maintenance of Tenant's Equipment, including, without limitation, compliance with any terms of its Federal Communications Commission license with respect to Tank 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 Tank or any property or properties adjoining, or interfere with the use of the Water Tank and the remainder of the Premises, by Owner or others, and Tenant shall defend, indemnify and hold harmless Owner from any such damage. 21. Estoppel. Each party agrees to furnish to the other, within 10 days after request, such truthful estoppel information as the other may reasonably request. 22. General Liability Insurance Tenant will provide Commercial General Liability Insurance in an aggregate amount of $1,000,000.00 and name Owner as an additional insured on policy or policies Tenant may satisfy this requirement by obtaining appropriate endorsement to any master policy of liability insurance Tenant may maintain. 23. The Exhibits It is understood that not all of the exhibits referenced in these General Terms and Conditions may be necessary for a given Agreement, and that exhibits m addition to those referenced may be needed to fully describe the facilities and equipment installation. All exhibits developed in connection with this Agreement shall hereby be considered a part of the Agreement. 24. Miscellaneous 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. -6- 4 • • If either Owner orTenant 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. This Agreement shall be construed in accordance with the laws of the State of Arkansas. 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. 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. 25. Memorandum of Agreement Owner agrees to cooperate with Tenant in executmg a Memorandum of Agreement if requested by the Tenant. Tenant may file or record the Memorandum of Agreement, or the entire Agreement, as is normal and customary in order to protect its interest in regard to any Mortgagees. Any Memorandum of Agreement shall have the form as given in Exhibit F. SPECIAL CONDITIONS TO THIS AGREEMENT 1. Rental Amounts The rental amount for the Initial Term and the first Renewal Term shall be $2,500.00 per month payable as specified in the General Terms and Conditions. The rental amount for subsequent terns shall be as negotiated. If the Agreement is extended without negotiation of terms and conditions, then the rental amount will be increased by ten (10) percent. 2. Notice Addresses The address for all Notices under this Agreement shall be: Owner: Office of the Mayor City of Fayetteville 113 West Mountain Street Fayetteville, Arkansas 72701 Tenant: Tom Riley Southwest PCS, L.P. 5 North McCormick Oklahoma City, Oklahoma 73127 3. Exhibits The exhibits pertaining to this Agreement are: Exhibit A A descnption of the property upon which the Water Tank is located. (the "Premises"), and a description of the specific area within the Premises being leased. Exhibit B A description of the easements required for utility lines, to be furnished at a later date on the "as -built" location. -7- Exhibit C Exhibit D Exhibit E Exhibit F • • list of all equipment, personal property, alterations, buildings, antennas, and all other improvements by Tenant to the Premises (the "Equipment") A form of the "Notification of Commencement of Installation of Equipment". Plans for the installation, including a Plot Plan showing the location of any buildings to be placed on the Premises, details of the antennae attachment, easement location, leased area, a rendering of the appearance of the antennae on the Water Tank, and other items as may be necessary to fully describe the installation. The Memorandum of Agreement (Optional). All Exhibits shall be made a part of this Agreement and shall be furnished to the City no later than six (6) months from the effective date of the Agreement. 4. Water Tank Replacement It is understood by both parties that the water tank upon which Tenant proposes to place his facilities may be replaced either during the Initial Term of this Agreement or during the first Renewal Term. The water tank may either taken out of service and demolished so that a new tank can be constructed at the same site, or a new tank constructed on a different site and the existing water tank kept in service during the construction period. In the event a new tank is constructed on a different site, Tenant shall have the right to place their facilities on the new water tank at the appropriate time during construction and this Agreement shall continue in effect except that the Exhibits will be revised as necessary to reflect the new site. If the Tenant's facilities are out of service for more than ten (10) days because of the changeover, then the time the facilities were out of service will not be counted for purposes of rental payment In no case shall a rental fee be applicable to both sites at the same time. The expiration date of the affected term will not change. In the event Owner chooses to demolish the existing tank and construct a new tank at the same site, Tenant agrees, upon eighteen (18) months written notice, to remove all equipment and facilities installed under this agreement. Tenant shall then have the right to place the same or similar facilities on the new water tank at the appropriate time during construction, and this Agreement shall continue in effect except that the time period from the date Tenant removes facilities from the existing water tank until the date facilities are in service on the new water tank shall not be counted either for purposes of rental payment or for computing the end of affected term. • 5. Operational Frequency The frequency range for Tenant's Equipment is 1900 Mhz. -8- • • IN WITNESS WHEREOFOwner and Tenant have executed Agreement as of the date year first written above. eather Woodruff, City Clerk TENANT: OWNER: CiijofFayetteville By: Southwest PCS, L.P. 5 North McCormick Oklahoma City, Oklahoma 73127 Fred • anna, Mayor By: 600 Title: ACKNOWLEDGMENTS, State of ARKANSAS, County of WASHINGTON OWNER: I, , a Notary Public of the County and State aforesaid, certify that _ �jzE.p A Abil per o�nally appeared before me this day and acknowledged that he/she -is M $ of U. ^7 Dy" �,4yeJkvl L.jt_, a municipal corporation, and that by authority duly given and as the act of the said municipal corporation, the foregoing instrument was signed viVg"aine,,, WITNESS my hand and notarialseal this ca7 day of JA-ki o;OnO-• c %.)::‘,P ....... Oy? (SEAL)F s ;ate.:' NOTgRY :. cal (e �� ' IotaryPublic My Commissionn.tirees: r -1--b 0r... oBLIC. ory,-•••... .••'PQM° TENANT: D_Ctl.J._t4_"�C_noi._ a Notary Public of the County and State aforesaid, certify that. .ersonall appeared before me this day and acknowledg d that 1.64 he/she is C� , • au'ittlJl TCS, Itw,d-Rd,pthat by authority uly giv corporation, the ct of the said the foregoing instrument was .signed in its name. WITNESS my hand and no al seais /,5r� ay of nasi ®p. (SEAL) My Commission Expires: 0 &/..)-&/ADO it -9- ublic