HomeMy WebLinkAbout05-00 RESOLUTIONA
1111 411.
RESOLUTION NO 5-00 MICROFILMED
A RESOLUTION APPROVING A NON-EXCLUSIVE LEASE
AGREEMENT BETWEEN THE CITY AND SOUTHWEST PCS,
L P FOR CELLULAR ANTENNA RENTAL SPACE ON THE MT.
SEQUOYAH WATER TANK.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS•
Section 1. That the City Council hereby approves a non-exclusive lease agreement
between the City and Souttihvest PCS, LP. for cellular antenna rental space on the Mt. Sequoyah
water tank; and authonzes 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.
,• „* tPtltSSED AND APPROVED this 18" day of January , 2000.
e: APPROVED:
ATTEST
B
Heather Woodruff, City Clerk
By.
Fred Hanna, Mayor
NAME OF FILE:
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RES. 6'--60/ic7.111.41S57 PCIS, 1.A.
CROSS REFERENCE:"Tif3S.
Date
Contents of File
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WATER TANK ATTACHMENT
COMMUNICATION SITE LEASE AGREEMENT
(Mt. Sequoyah Water Tank)
THIS WATER TANK ATTACHMENT COMMUNICATION SITE AGREEMENT
_("Agreement") is entered into this /7 day of ff a, by and between the City of
Fayetteville, ("Owner") and Southwest PCS, L.P. (SWPCS), 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 described 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.
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".
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4. Renewal Term(ss. Tenant shall have the right to extend tis Agreement for one (1)
additional term of five (5) years ("First Renewal Term") on the same terms 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 begin 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 interior 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 in
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 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 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.
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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 correct 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 prior 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
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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 Term 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 may be terminated
on thirty (30) days prior written notice by either party upon a default of any covenant or term
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
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Tenant. If reinforcements To the Water Tank 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.
Owner shall require any subsequent tenants toi'perform 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 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 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 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 as given in
the Special Conditions of this Agreement.
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16. Title and Quiet Enjovment •
Owner represents and warr• 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 prior
written approval by Owner, not to be arbitrarily or unreasonably withheld, except that Tenant
may assign its rights 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 in 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.
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If either Owner or Tenant is represented by a real estate broker 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 executing 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 terms 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 description 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.
Exhibit C • A list of all equipment, personal property, alterations, buildings,
antennas, and all other improvements by Tenant to the Premises
(the "Equipment")
Exhibit D A form of the "Notification of Commencement of Installation of
Equipment".
Exhibit E 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.
Exhibit F 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 Tenn 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 appropnate 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.
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IN WITNESS WHEREOF, Owner and Tenant have executed Agre• nt as of the date year first
written above.
Attest:
ather Woodruff, City Clerk
OWNER. City gj'Fayetteville
By:
TENANT: Southwest PCS, L.P.
5 North McCormick
Oklahoma City, Oklahoma 73127
By:
Fred Hanna, Mayor
a9-‘S'ade
Title: COD
ACKNOWLEDGMENTS, State of ARKANSAS,
County of WASHINGTON
OWNER:
I, LAVA &Si S , a Notary Public of the County and State aforesaid, certify that _
personally appeared before me this day and acknowledged that
he/she -is- Mgyot. of Fjegob LLP , a municipal corporation, and
that by authority duly given and as the act of the said municipal corporation, the foregoing
instrument was signed in its name. WITNESS my hang and notarial seal this97 day ofTA,t )
AP B
0011111111100
..nts
(SEAL)
My Commission Expires:
TENANT:
otary Public
4' N_
2. A • c
UbcIC
08U NT ,m‘
r•.
Notary Public of the County and State aforesaid, certify that
y �p,,ersonally appeared before me thief day and aclmowle that
he/she i , l) • ' . ,l • f : Th_TA wea$ P P_J MS 1 LP, , a c c1 pa u9L 1 and
that by authonty duly !I n and as the act of the said corporatiopjhe foregoing instrument was
signed -1;7r is name. WITNESS my hand and notarial seal th01
/a—Day of ��2ODC.
4 nn .T'c3,34,
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i
EXHIBIT "A"
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(Le gal�description of the Premises and the leased area within the Premises)
Description of the Prbperty:
A part of the SE1/
West, described as be
which is 1049.2 feet Sou
tract; and running thence Nort
South 47 Degrees 40 Minutes We
East 100 feet to the West Line of Eas
of said Drive to the place of beginning
f the NE1/4 of Section 15, Township 16 North, Range 30
ing at a point on the West Line of East Skyline Drive
d 221.9 feet East of the NW corner of said 40 acre
42 Degrees and 20 Minutes West 100 feet, thence
100 feet, thence South 42 Degrees 20 Minutes
ine Drive, and thence along the curve
co twining 0.23 acres more or less.
Description of the Premises (Leased Area):
Transmitter(s):
Quantity
Mfg./Model
Frequency (Mhz)
Exhibit C
Tenants Equipment
3
Nortel
1900 Mhz
Transmit Output Power (dBw).. .....
Effective Radiated Power (ERPdBws)
....................Freq. 1961.25 ()@ 8 (dBw)
Freq. 1881.25 (Mhz)@ 44 (dBw)
Receiver(s):
Quantity
Mfg./Model
Frequency (Mhz)
Basic Sensitivity
3
Amplifier/Combiner
Coaxial Cable:
Quantity of Cable Runs
Mfg
Type
Size
Loss (dB)
Nortel
1900 Mhz
-115
Nortel
6
Cablewave
.FLC 158-50
1 5/8"
1.24
Anntenna(s): (including Gain)
Quantity 6
Mfg./Model Allgon 7184.15 (1) - 7182.15 (2)
Maximum Gain (dB) ......... 18dB
Transmit (dB) 18dB
Receive(dB) 18dB@1881.25 (Mhz)
Size/Length (inches) 51.2" x 5.5" x 2"
Weight 9 9 lbs
Mount Type
Mount Height
Azimuth (Degree of True North)
Orientation
Omni or Directional
TBD
200
0° 130° 240°
TBD
Directional
Power Required Voltage 240
Emergency Power Required Yes
Separate Power Meter Required ... Yes
Amperage 200
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EXHIBIT D
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NOTIFICATIONS OF COMMENCEMENT OF INSTALLATION OF EQUIPMENT
This is to notify the City of Fayetteville that SWPCS has begun the installation of equipment at the
Mt Sequoyah Water Tank as of the _ Day of , 2000. •
Therefore, in accordance with the terms of this Agreement, the Initial Term shall begin on the above
given date and shall expire at midnight on , 2005.
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EXHIBIT E
PPC * . ,� z_ UTURE1
RACK BTS
CABINET:25'x17'
LEASE
AREA
WAVE 17'x 17' 1
GUIDE m.I CONC.
BRIDGE S. F1 1 EQUIP. 1
PAD
-J
1
1J
1
1
1
1
1
EXISTING
BUILDINGS
EXISTING
WATER
TOWER
rEXISTING EXISTING
I TELCOr"'N.POWER
PEDISTALI ` POLE
o°000'et aaor
lir oo00
Preliminary Compound Plan for Skyline Drive
SCALE: 3/32 =1'-0" 99163
Beck Associates Architects
Planners
Consultonts
EXHIBIT F
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MEMORANDUM OF AGREEMENT
This MEMORANDUM OF AGREEMENT is entered into on this /ft day of Savo °'__
baa by and between the City of Fayetteville (Owner) and Southwest PCS, L.P., an Okla oma
Limited Partnership (Tenant), with an office at 5 North McCormick, Oklahoma City, Oklahoma,
73127.
1. Owner and Tenant entered into a Communications Site Lease Agreement ("Agreement") on
the el' day of , )000 , for the purpose of installing, operating and
maintaining aradio commuMcatio_ ns facility and other improvements All of the foregoing are
set forth in the Agreement.
2. The Initial Term of the Agreement is for Five (5) years commencing not later than
St x -n- 0JLS6) or the start of construction, whichever first occurs ("Commencement Date),
and terminating on the 5`h anniversary of the Commencement Date. Tenant has one (1) five
year renewal option.
3. The Land which is the subject of the Agreement is described in Exhibit A annexed hereto.
The portion of the Land being leased to Tenant is described in Exhibit B annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the
day and year first above written. •
OWNER: City of Fayetteville
Attest:
S
WoodrvR. Ciry k Woodruff, City C rk
By:
TENANT: Southwest PCS, L.P.
5 North McCormick
Oklahoma City, Oklahoma 73127
Witness(es)
/./%z
fee
a
Fre Hanna, Mayor
By:Thr‘
Title: 00 ! PI`v&
-15-
i
•
•
EXHIBIT F
MEMORANDUM OF AGREEMENT
This MEMORANDUM OF AGREEMENT is entered into on this 7 day of
ZctZ by and between the City of Fayetteville (Owner) and Southwest PCS, L P , an Oklaho
Limited Partnership (Tenant), with an office at 5 North McCormick, Oklahoma City, Oklahoma,
73127.
1. Owner and Tenant entered into a Communications Site Lease Agreement ("Agreement") on
the /,' day of_ ''u , Zoo° , for the purpose of installing, operating and
maintaining a radi ct ommunf1tions facility and other improvements. All ofthe foregoing are
set forth in the Agreement.
2. The Initial Term of the Agreement is for Five (5) years commencing not later than
or the start of construction, whichever first occurs ("Commencement Date"),
and terminating on the 5`h anniversary of the Commencement Date. Tenant has one (1) five
year renewal option.
3. The Land which is the subject of the Agreement is described in Exhibit A annexed hereto.
The portion of the Land being leased to Tenant is described in Exhibit B annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the
day and year first above written.
OWNER: City of Fayetteville
Attest:
eather Woodruff, City
By:
TENANT: Southwest PCS, L.P.
5 North McCormick
Oklahoma City, Oklahoma 73127
By:
Fred Hanna, Mayor
Title:
-15-
Cog u
•
ACKNOWLEDGMENTS, State of ARKANSAS,
County of WASHINGTON
•
FOR OWNER: f�
I, LANA RR° LES , a Notary Public of the County and State aforesaid, certify that
HE/t7Na. LJoDDkucftFesa personally appeared before me this day and acknowledged that he
is the Mayor of The City of Fayetteville, a Municipal Corporation, and that by authority duly
given and as the act of the said Municipal Corporation, the foregoing instrument was signed in its
name.
WITNESS my hand and notarial seal this027 day of TA,J , a400
Notary Public
""om111Nnuo,
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FOR TENANT:
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he/she is ; ft' hi,
that by autho t0y s my
was signed in its name.
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j Notary Public of the County and State aforesaid, certify that
R<I
personally appeared before me this day and acknowledged that
Southwest PCS, L.P., an Oklahoma Limited Partnership, and
ven and as the act of the said Limited Partnership, the foregoing instrument
„RWITNESS my hand and notarial seal
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-16-
•
WATER TANK ATTACHMENT
COMMUNICATION SITE LEASE AGREEMENT
(Mt. Sequoyah Water Tank)
THIS WATER TANK ATTACHMENT COMMUNICATION SITE AGREEMENT
("Agreement") is entered into this _ clay of , , by and between the City of
Fayetteville, ("Owner") and Southwest PCS, L.P. (SWPCS), 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 described 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.
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 Tenn. 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".
-1-
m
w
4. Renewal Terms . Tenant shall have the right to extend this Agreement for one (1)
additional term of five (5) years ("First Renewal Tenn") on the same terms 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 begin 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 interior 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 in
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 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 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 Diligenceod 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 correct 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 prior 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-
The Owner will reqtiire 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 Term 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 may be terminated
on thirty (30) days prior written notice by either party upon a default of any covenant or term
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 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.
Owner shall require any subsequent tenants toLlperforn 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 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 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 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 as given in
the Special Conditions of this Agreement.
-5-
16. Title and Ouita 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.
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 ment Tenant may not assign its interest in this Agreement without prior
written approval by Owner, not to be arbitrarily or unreasonably withheld, except that Tenant
may assign its rights 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 in 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-
S .
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.
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 executing 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 terms 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 description 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 AA list of all equipment, personal property, alterations, building,
antennas, and all other improvements by Tenant to the Premises
(the "Equipment")
Exhibit D A form of the "Notification of Commencement of Installation of
Equipment".
Exhibit E 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.
Exhibit F 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.
S:I
IN WITNESS WHEREOF; Owner and Tenant have executed Agreement as of the date year first
written above.
OWNER: City of Fayetteville
Attest:
OeOL 4 9m By:_____________
iAer Woodruff, City Clerk / re anna, Mayor
TENANT: Southwest PCS, L.P.
5 North McCormick
Oklahoma City, Oklahoma 73127
Witness(es)
By:
Title:
ACKNOWLEDGMENTS, State of ARKANSAS,
County of WASHINGTON
OWNER:
I, , 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 municipal corporation, and
that by authority duly given and as the act of the said municipal corporation, the foregoing
instrument was signed in its name. WITNESS my hand and notarial seal this _ day of
(SEAL)
Notary Public
My Commission Expires:
TENANT:
I, 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 _________________,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
(SEAL)
Notary Public
My Commission Expires:
-9-
• EXHIBIT F • •
MEMORANDUM OF AGREEMENT
This MEMORANDUM OF AGREEMENT is entered into on this day of
by and between the City of Fayetteville (Owner) and Southwest PCS, L.P., an Oklahoma
Limited Partnership (Tenant), with an office at 5 North McCormick, Oklahoma City, Oklahoma,
73127.
Owner and Tenant entered into a Communications Site Lease Agreement ("Agreement") on
the day of , for the purpose of installing, operating and
maintaining a radio communications facility and other improvements. All of the foregoing are
set forth in the Agreement.
The Initial Term of the Agreement is for Five (5) years commencing not later than
or the start of construction, whichever first occurs ("Commencement Date"),
and terminating on the 5'" anniversary of the Commencement Date. Tenant has one (1) five
year renewal option.
The Land which is the subject of the Agreement is described in Exhibit A annexed hereto.
The portion of the Land being leased to Tenant is described in Exhibit B annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the
day and year first above written.
OWNER: City of Fayetteville
Attest:
By:
Bather Woodruff, City -le Fred I<fanna, Mayor
TENANT: Southwest PCS, L.P.
5 North McCormick
Oklahoma City, Oklahoma 73127
Witness(es)
By:
Title:
-15-
ACKNOWLEDGMENTS, State of ARKANSAS, • I
County of WASHINGTON
FOR OWNER:
I, , a Notary Public of the County and State aforesaid, certify that
personally appeared before me this day and acknowledged that he
is the Mayor of The City of Fayetteville, a Municipal Corporation, and that by authority duly
given and as the act of the said Municipal 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)
FOR TENANT:
I, , a Notary Public of the County and State aforesaid, certify that
personally appeared before me this day and acknowledged that
he/she is of Southwest PCS, L.P., an Oklahoma Limited Partnership, and
that by authority duly given and as the act of the said Limited Partnership, the foregoing instrument
was signed in its name.
WITNESS my hand and notarial seal this _ day of , 19
Notary Public
My Commission Expires: (SEAL)
16-
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EXHIBIT F
MEMORANDUM OF AGREEMENT
MICROFILMED
This MEMORANDUM OF AGREEMENT is entered into on this — day of
�0oo by and between the City of Fayetteville (Owner) and Southwest PCS, L.P., an Oa
Limited Partnership (Tenant), with an office at 5 North McCormick, Oklahoma City, Oklahoma,
73127.
Owner and Tenant entered into a Communications Site Lease Agreement ("Agreement') on
the /Sfday of S r , for the purpose of installing, operating and
maintaining a radio commumcations facility and other improvements. All of the foregoing are
set forth in the Agreement.
2. The Initial Term of the Agreement is for Five (5) years commencing not later than
5fi . . -�w�b or the start of construction, whichever first occurs ("Commencement Date"),
and terminating on the 5' anniversary of the Commencement Date. Tenant has one (1) five
year renewal option.
The Land which is
the subject
of the
Agreement is described in Exhibit A annexed hereto.
The portion of the
Land being
leased
to Tenant is described in
Exhibit B annexed hereto.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the
day and year first above written.
OWNER: City of Fayetteville
Attest:
H ather Woodruff, City Cle :`'
TENANT: Southwest PCS, L.P.
5 North McCormick
Oklahoma City, Oklahoma 73127
Witness(es)
By:
Tith
By: /A
Fre anna, Mayor
-15-
S o S
AGENDA R QST-FQRPID
WAN O42000
Council Meeting of January 18,2000 CITYOFFAYkuIEVILLEMayor's Approval
CITY CLERICS OFFICE
FROM Don Bunn Public Works Admin Public Works
Name Division Department
ACTION REQUIRED Approval of a contract with SWPCS for cellular antenna
space on the Mount Sequoyah Water Tank.
COST TO CITY
$ 15,000.00
Cost of this Request
Account Number
Project Number
-
Purchasing Officer
$ 1,878,239.00
Category/Project Budget
-0-
Funds Used to Date
$ 1,878,239.00
Funds Remaining
Budgeted Item
/-3-co
Date
/ Y-ot1
Date
1 -4 -go
Date
Services and Charges
Category/Project Name
Operations & Admin
Program Name
Water and Sewer
Fund Category
Budget Adj. Attached
Admin Services Director Date
ADA Coordinator
Internal Auditor
vaLC
STAFF RECOMMENDATION It is the recommendation of the Staff that the Council
approve the contract with SWPCS for rental of space on the Mount Sequoyah
Water Tank for the purpose of installing an array of cellular antennas.
/-3e00
t Pub is w ks Director Date Cross Reference
/���oo
G Date New Item: Yes No
ii -OP Prev Ord/Res #
Date
DO Orig. Contract #
Mayor Date Orig. Contract Date
FAYETTEVALE a �
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENTAL CORRESPONDENCE
January 3, 2000
To: Fayetteville City Council
From: Don Bunn, Assistant Public Works Director
Thru: Charles Venable, Public Works Director
Fred Hanna, Mayor
Subject: Communication Site Lease Agreement
Mt. Sequoyah Water Tank
Southwest PCS, L.P. (SWPCS)
Attached for your review and approval is a proposed Agreement between the City and
SWPCS. The Agreement provides for cellular antenna rental space on the Mount
Sequoyah Water Tank and other communications equipment and buildings.
The lease agreement is a nonexclusive lease and extends for an initial five (5) year term.
After that time the Tenant will 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
$2,500.00 per month for the initial terms of five years. The rental amount after the initial
terms would be as negotiated. After the first renewal term (ten years total), the City as well
as the Tenant will have the right of non -renewal.
Under our contract with Mount Sequoyah, Incorporated (the Methodist Assembly), the City
will pay 50 percent of the lease amount ($1,250.00/month initially) to Mt. Sequoyah,
Incorporated.
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
Lease Agreement with SWPCS.
FAYETTEVtLE
DEPARTMENTAL CORRESPONDEN
Don Bunn, Assistant Public Works Director
Heather Woodruff, City Clerk
January 21, 2000
Attached is a copy of the resolution approving a non-exclusive agreement between the
city and Southwest PCS. L.P. for cellular antenna rental space on the Mount Sequoyah
Water Tank. The original will be microfilm and filed with the City Clerk.
#.11� �.4, e0J
74
p
• STAFF REVIEW FORM •
X Agenda Request
Contract Review
_ Grant Review For the Fayetteville City Council meeting of A ,( v /A (,
FROM:
Greg Boettcher Public Works Department PW
Name Division Department
ACTION REQUIRED: Approval of entry upon, inspection and/or testing activities, and applications concerning the
Property pursuant to the terms contained in Agreement from Southwest PCS,
COST TO CITY:
$ -0- $
Cost of this Request Category/Project Budget
Account Number
Project Number
BUQGET REVIEW:
Budget Manager
Funds Used to Date
Remaining Balance
_Budgeted Item
t/oZ
Category/Project Name
Program Name
Fund
Budget Adjustment Attached
Administrative Services Director
CONTRACT/GRANT/LEASE REVIEW:
GRANTING AGENCY:
. _ p.4temalI I • p.
p,
STAFF RECOMMENDATION: Approval of the Resolution and Budget Adjustment
Head Date Cross Reference
e 7'O Z
nt Director DateNew Item: No
CJs_ (Z7O�
Date Prev Ord/Res #:
Date Orig Contract Date:
V
V
•
Site: A-ier ,e Site I.D. hR 03SW/93
ENTRY AND TESTING AGREEMENT
• THIS AGREEMENT ("Agreement") is made and entered into as of the /7S -day of
off, 200�.by and between The City of Fayetteville, Arkansas
("Owner") and Southwest PCS Properties, LLC, a Delaware limited partnership
("Southwest PCS") concerning the following described property owned by Owner
("Property"):
Section 17, Township 16, Range 30 - Fayetteville Outlets
133 N. Sang, Fayetteville, Arkansas 72701
A. Southwest PCS has an interest in leasing the Property for use as a tower or
antenna site for the receipt and transmission of wireless communications signals; and
B. In order for Southwest PCS to determine the viability and feasibility of the
Property as a tower or antenna site, it is necessary for employees, agents or independent
contractors of Southwest PCS to enter upon and inspect the Property and/or temporarily
locate communications equipment on the Property to conduct short term radio propagation
tests, and to make application with local, state and federal governmental entities for
approval of the Property as a tower or antenna site; and
C. Owner and Southwest PCS desire to provide for the entry upon, inspection
and/or testing activities, and applications concerning the Property pursuant to the terms
contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
undertakings, and other consideration set forth in this Agreement, Owner and Southwest
PCS agree as follows:
1. Consent. Owner consents and agrees that Southwest PCS, its employees,
agents and independent contractors ("Authorized Parties") may enter upon the Property to
conduct and perform some or all of the following activities ("Permitted Activities"): surveys,
geotechnical soil borings and analyses, phase I environmental audits, boundary surveys,
radio propagation studies, and such other tests and inspections of the Property which
Southwest PCS may deem necessary or advisable. Southwest PCS agrees to be responsible
for any and all costs related to the Permitted Activities, including installation on and
operation and removal of equipment on the Property.
2. Filings. Owner consents and agrees that the Authorized Parties may make and
file applications on Owner's behalf to such local, state and federal governmental entities
whose approval Southwest• PCS may consider necessary or advisable to have the Property
approved as a tower or antenna site, including, but not limited to, governmental approvals
for zoning variances, rezoning applications, building permits and wetland permits. Owner
hereby agrees that an executed copy of this Agreement is as effective as the original.
However, if requested by the Authorized Parties, Owner agrees. to execute such other and
1
further documents as may be required by the governmental entity in question to evidence
Owner's consent to the action which is proposed to be taken.
3. Access. Owner agrees that the Authorized Parties may enter upon the Property
to perform the Permitted Activities upon execution of this Agreement and may have access
to the Property for up to ninety (90) days.
4. . Removal of Property. Southwest PCS agrees that it will, upon the conclusion
of the term of this Agreement, remove any equipment installed on the Property as a part of
the Permitted Activities, repair any damage to the Property that might have been caused in
connection with any of the Permitted Activities, and will return the Property to the condition
it was in before Southwest PCS's entry onto the Property. In the event any equipment
installed on the Property by Southwest PCS is not timely removed, Owner will have the right
to remove such equipment and Southwest PCS agrees to be responsible for the reasonable
costs of such removal.
5. Indemnity. Southwest PCS agrees to indemnify, save harmless, and defend
Owner, its directors, officers, employees, and property management agent, if any, from and
against any and all claims, actions, damages, liability and expense in connection with
personal injury and/or damage to property arising from or out of any occurrence in, upon or
at the Property caused by the act or omission of the Authorized Parties in conducting the
Permitted Activities. Any defense conducted by Southwest PCS of any such claims, actions,
damages, liability and expense will be conducted by attorneys chosen by Southwest PCS, and
Southwest PCS will be liable for the payment of any and all court costs, expenses of litigation,
reasonable attorneys' fees and any judgment that may be entered therein.
6. Insurance. At Owner's request, Southwest PCS agrees to provide a certificate
of insurance evidencing Southwest PCS's insurance coverage.
7. Governing Law. The parties agree that the interpretation and construction of
this Agreement shall be governed by the laws of the state of Arkansas, without regard to
such state's conflict of laws provisions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Southwest PCS Prope ties, LLC
By: L
Name: Charles B. tShsMOOd _,
Title: DireCtor of Site ooveioprnetlt
JUN t 7 2002
City of,4 ayetteville, Arkannsas
Dan Coody, Mayor /
1'40. (�
2
a
•
C
Proposed Lease Area Placement and Access Easement
For Alamosa PCS Facility
LR03SW193B
Sang Water Tower - Fayetteville
led Lease Area Fenceine
20' x 20' Proposed Access Easement
15' in width
Gravel
Overlay
Water
Tower Galvanized
Cover
I
Ii -
Fenced -in
Area
ERwsed Power unes -low hanQifQ_ I
FIIrr
Alltel
Tower
Alitel Tower =�
Prop.
Marker
Access Road
I For Alltel Tower J
I Fonce line
I Q
1
I Fiber Transformer Boa
I Marker 21053
624R
20e 150
Paved Access Road
leading from Sang
z
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46exas Telecommunications%
Routing Sheet and Lease Summary for
Site Name: Sang Water Tower - Fayetteville Cascade ID: LR03SW193
This is a contract that has been reviewed by Steve Portnoy and is ready for execution. I recommend this
contract for execution. This is strictly for an Entry and Testing Agreement
Cheryl lord 6/17/02
PreparedMy Sit WsDa-tV
Date
' np edbyRea
I E&T Agreement. Landlord has executed
Approv by Legal Counsel l5ate
JUN 472002
Approved and signed by Date
Items Attached:
Lease Summary:
Site Type: XX Collocation w/ City of Fayetteville, Arkansas on their Water Tower
Lease
Type:
Entry and
Testing Agreement
Lease
Area:
133 North
Sang, Fayetteville, Arkansas 72701
Option period: N/A
Lease commences upon: Upon full execution for the weeks of June 17, 2002 through the week of September 17,
2002
Lease Terms: N/A
Termination Rights: N/A
Assignment: N/A
24 -Hour Access: For a period of 90 days during normal business hours upon full execution of this Agreement..
Non -Standard Terms: N/A
Conftruction terms: N/A
ROUTING INSTRUCTIONS:
6/17/2002; 11:04 AM
fOSSIL CR[EI<111• 0ffice:281-537-7279
LAND COMPANY oex sane Cell: X 405-823-7100
12
Houston, Texas 77090 FAX: 281-537-7279
M[MO
TO: Matt Collins Alamosa PCS
CC:
FROM: George Crain fossil Creek Land Company
DATE: June 13, 2002
RE: E&T for LR03SW 193 (Sang Water Tower — Fayetteville)
Please find enclosed the partially executed Entry and Testing Agreement for the above site.
Please have this executed and then overnight an original to:
Greg Boettcher
Public Works Director
City of Fayetteville, Arkansas
113 West Mountain Street
Fayetteville, AR 72701
479-575-8330
The City will not allow us to drive test this, site until they have an original E&T in hand.
I
06/17/2002
12:05
9723088515
PAGE
•
STE VENA, PORTNOY..
ATTORNEY AND COUNSELOR AT 1.AW
15851 N. DAIAAS.PARKWAY •.suIT f10 . --
ADDISON. TEXAS 75001-6030
19721 30-R 51 f-0 • FAX 19721 .30s -R51 5
I ACSIMILE COVER LETTER
LNIPORTANTICONf'IIDENTIALi This message is intended only for the use of the individual or entity to
which it is addressed. This message contains information from the law firm of Steven A. Portnoy which may
be privileged, confidential and exempt film disclosure under applicable law. If the reader of this message is not
the intended ro ipicut or the employee or agent responsible for delivering the message to the intended recipient,
you are hereby notified that any: disserrfmatiort, distribution or copying of this communication is strictly
prohibited. If you have received this communication in error, please notify us immediately at our telephone
number (972) 308.8510. We will be happy to arrange for the return of this message to us via the United States
Postal Service at no cost to you.
DATE:
TOTAL NUMBER OF PAGES INCLUDING TFHS COVER PAGE:
TO:
FAX NO.
MESSAGE: . r I7� lQti , Lur n fwS��
d4
er . r
fl
ALAMOSA
PERSONAL COMMUNICATIONS SERVICE
Monday, June 17, 2002
Greg Boettcher
Public Works Director
City of Fayetteville Arkansas
113 West Mountain Street
Fayetteville, Arkansas 72701
RE: LR03SW193 — Sang Water Tank
Dear Mr. Boettcher:
ECE9
0/ED
JUN 18 2002
CITY OF FAYETTEVILLE
MAYOR'S OFFICE
Please find the enclosed fully executed original Entry and Testing Agreement for the
above referenced site as executed between Southwest PCS Properties, LLC and the City
of Fayetteville. I have kept a copy for our records and forwarded a copy to Mr. George
Crain with Fossil Creek Land Company.
Please feel free to call our office with any questions or concerns. You may reach Matt
Collins at 913-253-7690 or myself at 913-253-7632.
yl
Administrative Assistant
Site Development/Acquisition
Enclosures: 1
cc: Matt Collins, Project Manager
George Crain, Fossil Creek Land Services
cl
4000W. 114'" Street, Suite 220 Timberlands Building Leawood, Kansas 66211
rFA ET EV LE
THE CRY OF FAYETTEVILLE, ARKANSAS
June 20, 2002
Cheryl Jordy
Administrative Assistant
Alamosa Personal Communications Service
4000 W. 114'' Street, Suite 220
Timberlands Building
Leawood, Kansas 66211
Re: LR03SW193 - Sang Water Tank
Dear Cheryl:
Per Greg Boettcher's request I have enclosed a copy of the fully executed original Entry and
Testing Agreement for the above referenced site as executed between Southwest PCS Properties,
LLC and the City of Fayetteville for your files.
Sincerely,
Joan Blackard
City Clerk's Office
enclosure
113 WEST MOUNTAIN 77701 479621.1700
FAX 479675-8257
FAYETTEVItLE
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENTAL CORRESPONDENCE
To: Greg Boettcher, Public Works Department
From: Heather Woodruff, City Clerk
Date: June 19, 2002
Please find
attached a copy of the completed
Staff Review Form and
executed Entry and Testing
Agreement.
The original will be microfilmed
and filed with the City
Clerk
cc: Nancy Smith, Internal Auditor
� 41 0
RESOLUTION NO. 5-00
A RESOLUTION APPROVING A NON-EXCLUSIVE LEASE
AGREEMENT BETWEEN THE CITY AND SOUTHWEST PCS,
L.P. FOR CELLULAR ANTENNA RENTAL SPACE ON THE MT.
SEQUOYAH WATER TANK.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1. That. the City Council hereby approves a non-exclusive lease agreement
between the City and South vest PCS, LP. for cellular antenna rental space on the Mt. Sequoyah
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.
. { &NSSEkAND APPROVED this 1O day of _January , 2000.
APPROVED:
•,1. y
f Fred Hanna, Mayor
ATTEsT: ,•
By:a_
Heather Woodruff, City Clerk