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HomeMy WebLinkAbout134-02 RESOLUTION. • RESOLUTION NO. 134-02 A RESOLUTION APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF FAYETTEVILLE AND SOUTHWEST PCS PROPERTIES, LLC, TO LOCATE CELLULAR TELEPHONE ANTENNAE ON THE SANG WATER TANK FOR MONTHLY LEASE PAYMENTS OF ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS* Section 1. That the City Council of the City of Fayetteville, Arkansas hereby approves a lease agreement between the City of Fayetteville and Southwest PCS Properties, LLC, to locate cellular telephone antennae on the Sang Water Tank for monthly lease payments of One Thousand Five Hundred Dollars ($1,500.00). A copy of the contract is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this 3rd day of September, 2002. APPROVED: By: ATHER WOODRUFF, Ci Clerk 3 • NAME OF FILE: CROSS REFERENCE: Resolution No. 134-02 • 09/03/02 Resolution No. 134-02 Water Tank Attachment / Communication Site Lease Agreement with PCS Properties, LLC for the lease of tower space on the Township Water Tank 08/16/02 Memo to Mayor Coody and Members of Fayetteville City Council from Greg Boettcher, P E Public Works Director 09/03/02 Staff Review Form 09/06/02 Memo to Greg Bettcher, Public Works Director, from Heather Woodruff, City Clerk • NOTES: • This day of "Owner" and • • WATER TANK ATTACHMENT COMMUNICATION SITE LEASE AGREEMENT ate Tank Attachment Communication Site Agreement ("Agreement") is entered into this 200Z., by and between the City of Fayetteville, hereinafter known as the lamosa Properties, L.P., hereinafter known as the 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 "Premises"), and leases to Tenant a portion of the Premises for construction and occupancy of an equipment shelter or building to house Tenant's equipment on the Premises as more particularly described in Exhibit "A". Owner shall continue to have the right to occupy the Premises and operate the Water Tank and to grant others rights to occupy or uhli7e 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 the earlier of (i) commencement of installation or (11) one hundred eighty (180) days after the full execution of the Agreement, (the "Commencement Date") and terminating at midnight five years thereafter. 4. Renewal Term(s). Tenant shall have the right to extend this 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 [ten (10) years and one hundred eighty (180) days from the date of this agreement] the Owner shall have the right to terminate this Agreement for any reason, provided the Tenant shall have been notified m writing one hundred and eighty (180) days prior to the expiration date. In the event Owner chooses not to terminate the Agreement, the Tenant shall have the right to extend the Agreement for one (1) additional five (5) year term However, 1 • • • both parties shall have the right to ask for a renegotiation of the terms and conditions of the Agreement at that time, provided a written notice of the desire to renegotiate terms and conditions is given the other party at least ninety (90) days prior to the Agreement termination date. Notice shall contain an explanation of the items and/or issues to be renegotiated. Owner and Tenant shall have the same rights of termination/negotiation at the end of each successive five (5) year term. 5. Rent. The rental amount for the initial term and subsequent renewal terms shall be as specified in the Special Terms and Conditions of this Agreement. Rental payments shall begin on the Commencement Date and shall be made monthly in advance on 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. Any past due amount shall be shown as such on the following month's billing statement, and shall constitute sufficient notice to the Tenant of the need to bring the account current. Failure to do so within thirty (30) calendar days of the receipt of such notice shall be deemed a default. In the event the Agreement is terminated due to any reason except Tenant's default, Owner shall promptly refund any prepaid rents to Tenant. 6. Maintenance. 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. 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. The cost of repair may include, but would not be limited to the cost of lost water, disinfections, 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 Lease Agreement, Tenant shall remove, within ninety (90) days thereof, 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 and damage due to casualty 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. Tenant shall be responsible for any damages it may cause to existing or future telecommunications equipment. Tenant shall be obligated to remove all permanent structures down to ground level unless Owner specifically approves of such structure or structures remaining in place. Underground or at grade items, such as slabs on grade, gravel, and vegetation shall not require removal. No underground items shall require removal. 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; 2 • (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 satisfy all conditions set forth above. 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, and who are operating in full compliance with all FCC requirements. 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, upon installation and start-up of the Equipment, 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. 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 Tenant's existing equipment and use thereof which may occur as a result of the installation and operation of their equipment. In the event of such interference by a subsequent tenant, Tenant shall have the right to enjoin such interference and if the interference is not remedied within thirty (30) days, Tenant shall have the right to terminate this Agreement immediately. 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, (and all sleeves, conduits and cables necessary thereto), on a formal utility easement specifically given by Owner for that purpose in order to service the Equipment throughout the Initial Term or any Renewal Term of this Agreement. All utilities servicing Tenant's equipment and facilities shall be placed underground. Tenant shall be responsible for all utility connection charges, and all utility use charges, for electricity or any other utility used by Tenant. Tenant shall have access to the Premises and the Equipment at all times, 24 hours each day, through the 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). 3 • 11. Termination. This Agreement may be terminated by either party in accordance with the provisions of Paragraph 4 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. Upon termination of this Agreement Tenant shall immediately cease its operation, and shall have ninety (90) 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 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. Subsequent tenants may be required to_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 4 • • 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 biphenyls, 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, mailed by certified mail, return receipt requested, or by overnight service having a record of receipt to the addresses as given in the Special Terms and Conditions of this Agreement. 16.. Title and Quiet Enjoyment. Owner represents and warrants that it has the full right, power and authority to execute and enter into this Agreement. Owner further warrants that Tenant shall have the quiet enjoyment of the Premises during the term of this Agreement In the event the Premises is encumbered by a mortgage or deed of trust, Owner agrees, upon request of Tenant, to obtain and furnish to Tenant a non -disturbance and attornment agreement for each such mortgage or deed of trust, in a form reasonably acceptable to Tenant. Tenant may obtain title insurance on its interest in the Premises. Owner agrees to execute such documents as the title company may require in connection therewith. Notwithstanding any language to the contrary contained herein, Lessor does hereby waive any security interest or lien, inclusive of landlord's lien, whether arising under contract, common law, statute or otherwise in and to Lessee Facilities and other improvements and personal property of Lessee located in, on or about the Tower, Premises or Property. Lessor further recognizes and acknowledges that Lessee or Lessee's assigns or successors intends to enter into or has entered into certain financial arrangements with Citicorp USA, Inc. ("Citicorp"), as administrative agent and collateral agent for itself and various other lenders (the "Lenders"), and, in connection with such financing arrangements, Citicorp and the Lenders will take a security interest in the Lessee Facilities and the products and proceeds thereof (collectively, the "Collateral") to be installed on the property which is the subject of this Antenna Collocation Lease Agreement. Lessor consents to the installation of the Collateral, disclaims any interest in the Collateral, as noted hereinabove, and represents that the Collateral shall be exempt from executionrforeclosure, sale, levy, attachment or distress from rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. Lessor further represents that such consent and representations noted herein shall inure to the benefit of Lessee, Citicorp, the Lenders and any replacement or refinancing lenders their successors and assigns. Lessor further represents and acknowledges that Citicorp and the Lenders shall have the right to cure any default of Lessee hereunder within the applicable cure period and may, by assuming all of Lessee's obligations herein, be substituted as Lessee hereunder. Nothing contained herein shall be deemed or construed to obligate Citicorp or any of the Lenders or any replacement or refinancing lenders to take any action hereunder or to perform or discharge any indebtedness, liability, obligation or duty of the Lessee under this Antenna Collocation Lease Agreement. 5 • • • • 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 unreasonably withheld, except that Tenant may assign its rights and obligations under this Agreement to an Affiliate. Additionally, Tenant may, upon notice to Owner, mortgage or grant a security interest in this Agreement and the Equipment, and may assign this Agreement and the Equipment to any mortgagees or holders of security interests, including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees interests in this Agreement are subject to all of the terms and provisions of this Agreement. In such event, Owner shall execute such consent to leasehold financing as may reasonably be required by Mortgagees. Owner agrees to notify Tenant and Tenant's Mortgagees simultaneously of any default by Tenant and to give Mortgagees the same right to cure any default as Tenant or to remove any property of Tenant or Mortgagees located on the Premises, except that the cure period for any Mortgagees shall not be less than thirty (30) days after its receipt of the default notice, as provided in this Agreement. All such notices to Mortgagees shall be sent to Mortgagees at the address specified by Tenant. Failure by Owner to give Mortgagees such notice shall not diminish Owner's rights against Tenant, but shall preserve all rights of Mortgagees to cure any default and to remove any property of Tenant or Mortgagees located on the Premises as provided in this Agreement. Owner hereby waives any and all lien rights it may have, statutory or otherwise concerning the Equipment or any portion thereof which shall be deemed personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and Owner gives Tenant and Mortgagees the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in Tenant's and/or Mortgagee's sole discretion and without Owner's consent. 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 General Liability Insurance. Tenant will provide 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. Owner and Tenant shall look initially to insurance for loss due to any peril that is covered by insurance and neither party's insurance company shall be subrogated to a claim against the other party, provided that nothing herein shall be construed to alter, limit or otherwise compromise that immunity afforded the City of Fayetteville under the Constitution and Statutes of the State of Arkansas. Tenant may satisfy the insurance requirements herein by obtaining the appropriate endorsement to any master policy of liability insurance that Tenant maintains. 6 • • • 22. 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. 23. Miscellaneous. This Agreement constitutes the entire agreement and understandirig 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. 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. hi the event of casualty damage to the Premises or the Equipment, Tenant shall have the right to terminate if in Tenant's judgment the damage hinders its effective use. In the event of condemnation, Tenant shall have the right to any award specifically designated as compensation for Tenant's interest, value of equipment and cost of removal. 24. 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. fia]anr n of Chic Page i eft Blank Intantionally 7 • • SPECIAL. CONDITIONS TO TI -HS AGRFFMFNT 1. Rental Amounts. One Thousand Five Hundred Dollars ($1,500.00) per month 2. Notice Addresses. If to Lessor, to: City of Fayetteville, Arkansas 113 W Mountain Street Fayetteville, AR 72701 Attn: Greg Boettcher, Director of Public Works Tel. 479-575-8330 with a copy to: Attn: If to Lessee, to: Alamosa Properties L P P O Box 64840 Lubbock Texas 75240-4840 Attn: Kelly Alderman, Leasing Administrator Tel: (806) 722-2822 Steven A. Portnoy, Attorney at Law 15851 North Dallas Parkway, Suite 500 Addison Texas 75001 Tel. (972) 308-8510 3. Exhibits. The exhibits pertaining to this Agreement are: Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F 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. A description of any easement required for the installation of utilities required for Tenant's operations. (the "Easement") A 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 (a form of which is attached). 4. Operational Frequency. The frequency range for Tenant's Equipment is: 1961.25 MHz (Tx) and 1881.25 MHz (Rx). 8 • • IN WITNESS WHEREOF, Owner and Tenant have executed Agreement as of the date and year first written above. OWNER: CITY OF FAYETTEVILLE ATTE .-/✓ EATHER WOODRUFF, Ci Clerk TENANT: TENANT: ATTEST. By: ,� Ad 'nistrati Assistant By: DAN COODY, Ma Alamosa Properties, L.P. Charles B Sherwood Title: Director of Site Development 9 • • ACKNOWLEDGMENTS State of ARKANSAS, County of WASHINGTON OWNER: I, 1 AvirP)Rotilli , a Notary Public of the County and State aforesaid, certify that -►..N Ct0nt-j personally appeared before me this day and acknowledged that he/she is MAYOR of the CITY OF FAYEI I'EVILLE, 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 se,t*. / , y of Qc-'ber , 2002 PRY ... 4 % (SEAL) '?'I WI z =- �' ▪ ' ,C, Notary Public 4-'••. "'. TON c0 ,0:1/4 :1/4 ��lloomm�nrc My Commission Expires: q -1- D $ TENANT: State of Kansas, County of Johnson I, in f-(1 £h So i , a Notary Public of the County and State aforesaid, certify thatCharles B Sherwnn t personally appeared before me this day and acknowledged that he is Director of Site Development of Alamosa Properties, L P , a registered corporation in the State of Texas, 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 seal this .lDay of X51 , 2002 (SEAL) My Commission Expires: 7✓ 'a� kerb JoEIIen Bisel Notary Public State of Kansas My Appointment Expires: g-31.1319 pis is N ary Public 10 • • • EXHIBIT A Description of Premises Legal Description: A part of the Southwest Quarter of the Northwest Quarter (SW/4 of the NW/4) of Section 17, Township 16, Range 30, also described as the Fayetteville Outlets, a subdivision of the City of Fayetteville, Arkansas, also described as 133 North Sang Ave. Fayetteville, Arkansas. Drawing of Premises: Proposed Lease Area Fen`ellne 20' x 20' Proposed Access Easement 15' in width Gravel Overlay GalvaMxed Cover Fenced -in Area .,Exposed power Lines 7 low hanging Alltel Tower V Alltel Tower Prop. Fiber Marker Access Road For Alltel Tower Fiber Maher x Fenceline Transformer Box 21053 624R 208 150 A Paved Access Road leading from Sang Not to Scale NOTE: This Description of Premises to be replaced by a land survey once it is received by the Lessee. 11 • • • • EXHIBIT 13 The Easement 12 • • • Exhibit D "Notification of Commencement of Installation of Equipment" 14 • • Exhibit E Plans for Installation 15 • • • • • MEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT is entered into on this day of .5sa rofe. d.1- 3 7002, by and between the City of Fayetteville and Alamosa Properties, L.P., a Texas limited liability corporation. 1. Owner and Tenant entered into a Co unications Site Lease Agreement ("Agreement") on the 3'o( day of Ire+ t, 2002, 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. 2. 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: ATTES Atre /��G✓/-i/// EATHER OODRUFF, Ci Clerk TENANT: ATTEST. By: Cheryl Jordy, Administrative Assistant LRO3SW 193 Sang Water Tower/Fayetteville By DAN COODY, Mayor CITY) FAYE EVI , E Alamosa Properties, L.P. Charles B. Sherwood Title: Director of Site Development a. • • • ACKNOWLEDGMENTS State of ARKANSAS, County of WASHINGTON OWNER: /� I, LOA Pto i.¢S , a Notary Public of the County and State aforesaid, certify that V4&) VonPil personally appeared before me this day and acknowledged that she is 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. WITI$ � "roma3/4 €ps nd seal thiday of O bP r , 200 2•. 'Q; O It:... \G '" r � r 6/-44°2 VP.%Pug ' 4.'s Notary Public �,r _ My �`bWeil Ires: v 1111 III Ilpp0.tlPP State of Kansas, County of Johnson I, 11,9:440 S{'1 , a Notary Public of the County and State aforesaid, certify that Charles B. Sherwood, personally appeared before me this day and acknowledged that he is Director of Site Development of Alamosa Properties, L.P., a registered corporation in the State of Texas, and that by authority duly given and as the act of the said corporation, the foregoing instrument was signed in its name. r WITNESS my hand and seal this Day of _[__ 6 L, 2002 TENANT: (SEAL) My Commission Expires: 3 a_P_ 4 fa/ IUIk!/ /1 JoEllen Bloel Notary Public State of Kansas My Appointment ExPlres'3 a' b LRO3SW 193 Sang Water Tower/Fayetteville tary Public • • • EXHIBIT A Legal Description of Property Legal Description: A part of the Southwest Quarter of the Northwest Quarter (SW/4 of the NW/4) of Section 17, Township 16, Range 30, also described as the Fayetteville Outlets, a subdivision of the City of Fayetteville, Arkansas, also described as 133 North Sang Ave. Fayetteville, Arkansas. LR03SW 193 Sang Water Tower/Fayetteville • • EXHIBIT B Description of Premises Drawing of Premises: Proposed Lease Area Fenceline 20' x 20' Proposed Access Easement 15' in width Water Tower Fenced -in Area Galvanized Cover (-Exposed. sower lines - low hanging Gravel Overlay Alltel Tower bt— Alltel Tower �1 Prop. A FEer Maker Access Road For Alltel Tower Paved Access Road leading from Sang Fiber Marker x FenaeJine Transformer Box 21053 624R 208 150 (1) Not to Scale NOTE: This Description of Premises to be replaced by a land survey once it is received by the Lessee. LRO3SW 193 Sang Water Tower/Fayetteville WATER TANK ATTACHMENT COMMUNICATION SITE LEASE AGREEMENT This,War r Tank Attachment Communication Site Agreement ("Agreement") is entered into this day of 20 ai by and between the City of Fayetteville, hereinafter known as the "Owner" and Alamosa Properties, L.P., hereinafter known as the "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 "Premises"), and leases to Tenant a portion of the Premises for construction and occupancy of an equipment shelter or building to house Tenant's equipment on the Premises as more particularly described in Exhibit "A". Owner shall continue to have the right to occupy the Premises and operate the Water 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 the earlier of (i) commencement of installation or (ii) one hundred eighty (180) days after the full execution of the Agreement, (the "Commencement Date") and terminating at midnight five years thereafter. 4. Renewal Term(s). Tenant shall have the right to extend this 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 [ten (10) years and one hundred eighty (180) days from the date of this agreement] the Owner shall have the right to terminate this Agreement for any reason, provided the Tenant shall have been notified in writing one hundred and eighty (180) days prior to the expiration date. In the event Owner chooses not to terminate the Agreement, the Tenant shall have the right to extend the Agreement for one (1) additional five (5) year term. However, both parties shall have the right to ask for a renegotiation of the terms and conditions of the Agreement at that time, provided a written notice of the desire to renegotiate terms and conditions is given the other party at least ninety (90) days prior to the Agreement termination date. Notice shall contain an explanation of the items and/or issues to be renegotiated. Owner and Tenant shall have the same rights of termination/negotiation at the end of each successive five (5) year term. 5. Rent. The rental amount for the initial term and subsequent renewal terms shall be as specified in the Special Terms and Conditions of this Agreement. Rental payments shall begin on the Commencement Date and shall be made monthly in advance on 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. Any past due amount shall be shown as such on the following month's billing statement, and shall constitute sufficient notice to the Tenant of the need to bring the account current. Failure to do so within thirty (30) calendar days of the receipt of such notice shall be deemed a default In the event the Agreement is terminated due to any reason except Tenant's default, Owner shall promptly refund any prepaid rents to Tenant. 6. Maintenance. 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. 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. The cost of repair may include, but would not be limited to the cost of lost water, disinfections, 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 Lease Agreement, Tenant shall remove, within ninety (90) days thereof, 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 and damage due to casualty 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. Tenant shall be responsible for any damages it may cause to existing or future telecommunications equipment. Tenant shall be obligated to remove all permanent structures down to ground level unless Owner specifically approves of such structure or structures remaining in place. Underground or at grade items, such as slabs on grade, gravel, and vegetation shall not require removal. No underground items shall require removal. 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; 2 (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 satisfy all conditions set forth above. 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, and who are operating in full compliance with all FCC requirements. 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, upon installation and start-up of the Equipment, 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. 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 Tenant's existing equipment and use thereof which may occur as a result of the installation and operation of their equipment. In the event of such interference by a subsequent tenant, Tenant shall have the right to enjoin such interference and if the interference is not remedied within thirty (30) days, Tenant shall have the right to terminate this Agreement immediately. 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, (and all sleeves, conduits and cables necessary thereto), on a formal utility easement specifically given by Owner for that purpose in order to service the Equipment throughout the Initial Term or any Renewal Term of this Agreement. All utilities servicing Tenant's equipment and facilities shall be placed underground. Tenant shall be responsible for all utility connection charges, and all utility use charges, for electricity or any other utility used by Tenant. Tenant shall have access to the Premises and the Equipment at all times, 24 hours each day, through the 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. 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. Upon termination of this Agreement Tenant shall immediately cease its operation, and shall have ninety (90) 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 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. Subsequent tenants may be required to -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 Tenants agents, employees or contractors. As used in this Agreement, "Hazardous Materials" shall mean any and all polychlorinated biphenyls, 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, mailed by certified mail, return receipt requested, or by overnight service having a record of receipt to the addresses as given in the Special Terms and Conditions of this Agreement. 16. Title and Quiet Enjoyment. Owner represents and warrants that it has the full right, power and authority to execute and enter into this Agreement. Owner further warrants that Tenant shall have the quiet enjoyment of the Premises during the term of this Agreement. In the event the Premises is encumbered by a mortgage or deed of trust, Owner agrees, upon request of Tenant, to obtain and furnish to Tenant a non -disturbance and attornment agreement for each such mortgage or deed of trust, in a form reasonably acceptable to Tenant. Tenant may obtain title insurance on its interest in the Premises. Owner agrees to execute such documents as the title company may require in connection therewith. Notwithstanding any language to the contrary contained herein, Lessor does hereby waive any security interest or lien, inclusive of landlord's lien, whether arising under contract, common law, statute or otherwise in and to Lessee Facilities and other improvements and personal property of Lessee located in, on or about the Tower, Premises or Property. Lessor further recognizes and acknowledges that Lessee or Lessee's assigns or successors intends to enter into or has entered into certain financial arrangements with Citicorp USA, Inc. ("Citicorp"), as administrative agent and collateral agent for itself and various other, lenders (the "Lenders"), and, in connection with such financing arrangements, Citicorp and the Lenders will take a security interest in the Lessee Facilities and the products and proceeds thereof (collectively, the "Collateral") to be installed on the property which is the subject of this Antenna Collocation Lease Agreement. Lessor consents to the installation of the Collateral, disclaims any interest in the Collateral, as noted hereinabove, and represents that the Collateral shall be exempt from executionrforeclosure, sale, levy, attachment or distress from rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. Lessor further represents that such consent and representations noted herein shall inure to the benefit of Lessee, Citicorp, the Lenders and any replacement or refinancing lenders their successors and assigns. Lessor further represents and acknowledges that Citicorp and the Lenders shall have the right to cure any default of Lessee hereunder within the applicable cure period and may, by assuming all of Lessee's obligations herein, be substituted as Lessee hereunder. Nothing contained herein shall be deemed or construed to obligate Citicorp or any of the Lenders or any replacement or refinancing lenders to take any action hereunder or to perform or discharge any indebtedness, liability, obligation or duty of the Lessee under this Antenna Collocation Lease 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 unreasonably withheld, except that Tenant may assign its rights and obligations under this Agreement to an Affiliate. Additionally, Tenant may, upon notice to Owner, mortgage or grant a security interest in this Agreement and the Equipment, and may assign this Agreement and the Equipment to any mortgagees or holders of security interests, including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees interests in this Agreement are subject to all of the terms and provisions of this Agreement. In such event, Owner shall execute such consent to leasehold financing as may reasonably be required by Mortgagees. Owner agrees to notify Tenant and Tenant's Mortgagees simultaneously of any default by Tenant and to give Mortgagees the same right to cure any default as Tenant or to remove any property of Tenant or Mortgagees located on the Premises, except that the cure period for any Mortgagees shall not be less than thirty (30) days after its receipt of the default notice, as provided in this Agreement. All such notices to Mortgagees shall be sent to Mortgagees at the address specified by Tenant. Failure by Owner to give Mortgagees such notice shall not diminish Owner's rights against Tenant, but shall preserve all rights of Mortgagees to cure any default and to remove any property of Tenant or Mortgagees located on the Premises as provided in this Agreement. Owner hereby waives any and all lien rights it may have, statutory or otherwise concerning the Equipment or any portion thereof which shall be deemed personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and Owner gives Tenant and Mortgagees the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in Tenant's and/or Mortgagee's sole discretion and without Owner's consent. 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. General Liability Insurance. Tenant will provide 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. Owner and Tenant shall look initially to insurance for loss due to any peril that is covered by insurance and neither party's insurance company shall be subrogated to a claim against the other party, provided that nothing herein shall be construed to alter, limit or otherwise compromise that immunity afforded the City of Fayetteville under the Constitution and Statutes of the State of Arkansas. Tenant may satisfy the insurance requirements herein by obtaining the appropriate endorsement to any master policy of liability insurance that Tenant maintains. 0 22. 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. 23. 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. 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. In the event of casualty damage to the Premises or the Equipment, Tenant shall have the right to terminate if in Tenant's judgment the damage hinders its effective use. In the event of condemnation, Tenant shall have the right to any award specifically designated as compensation for Tenant's interest, value of equipment and cost of removal. 24. 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. 1. Rental Amounts. One Thousand Five Hundred Dollars ($1,500.00) per month 2. Notice Addresses. If to Lessor, to: City of Favetteville. Arkansa 113 W. Mountain Street Fayetteville, AR 72701 Attn: Greg Boettcher, Director of Public Works Tel. 479-575-8330 with a copy to: If to Lessee, to: Alamosa Properties. L.P. P.O. Box 64840 Lubbock. Texas 752404840 Attn: Kelly Alderman, Leasing Administrator Tel: (806) 722-2822 ' •_l1.• _A •• •• • 11 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 any easement required for the installation of utilities required for Tenant's operations. (the "Easement") 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 (a form of which is attached) 4. Operational Frequency. The frequency range for Tenant's Equipment is: 1961.25 MHz (Tx) and 1881.25 MHz (Rx). IN WITNESS WHEREOF, Owner and Tenant have executed Agreement as of the date and year first written above. OWNER: ATTEST• HEATHER WOODRUFF, C Clerk TENANT: ATTEST: By: Cheryl Jordy, Administrative Assistant CITY OF FAYETTEVILLE to Alamosa Properties, L.P. By: Charles B. Sherwood Title: Director of Site Development ACKNOWLEDGMENTS State of ARKANSAS, County of WASHINGTON 161701:4 tC I, ( , a Notary Public of the County and State aforesaid, certify that personally appeared before me this day and acknowledged that he/she is 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. aa�l'dnlunlllgpl�ii WITNESS my hand ancT`@.is day of , 2002. `0Q0•..... 46 y% (SEAL Kc O �.� U . Q= > : `�• .Notary Public %ff •'. R. ; ""onH IVGT0N� un'n]'I My Commission Expires: ---------------------------------------------------------- ---------------------------------------------------------- TENANT: State of Kansas, County of Johnson I, �f 9.(€'V) 15P I , a Notary Public of the County and State aforesaid, certify that Charles R She* nnd, personally appeared before me this day and acknowledged that he is Director of Site Development of Alamosa Properties, L.P., a registered corporation in the State of Texas, 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 seal this Day of ►-7A' 11 �J_, 2002. (SEAL) Not44y Public My Commission Expires: gra ('OTb JoEllen Blsel Notary Public State of Kansas My Appointment Expires: 3 aF.o1, 10 I EXHIBIT A Description of Premises Legal Description: A part of the Southwest Quarter of the Northwest Quarter (SW/4 of the NW/4) of Section 17, Township 16, Range 30, also described as the Fayetteville Outlets, a subdivision of the City of Fayetteville, Arkansas, also described as 133 North Sang Ave. Fayetteville, Arkansas. Drawing of Premises: Proposed Lease Area FenCe11np 20' x 20' Proposed Access Easement 15' in width Gravel Overlay lWaterGalvanized Cover Fenced -in Area E Expose0 Qwer Lines-Iav han9lnQ Alltel Tower 17 Alltel Tower Prop. I I I 11 la I° Fiber I Marker Access Road I For Alitel Tower I Q FenceOna I Fiber Transformer Box Maher 21053 624R 208 150 Paved Access Road leading from Sang Not to Scale NOTE: This Description of Premises to be replaced by a land survey once it is received by the Lessee. EXHIBIT B The Easement 12 •1' EXHIBIT C The Equipment 13 • • Exhibit D "Notification of Commencement of Installation of Equipment" 14 Exhibit E Plans for Installation 'LI • MEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT is entered into on this day oft 9002, by and between the City of Fayetteville and Alamosa Properties, L.P., a Texas limited liability corporation. Owner and Tenant entered into a Co unications Site Lease Agreement ("Agreement") on the %3 day of .cth&4!&., 2002, 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. 2. 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: TENANT: ATTEST: By: Cheryl Jordy, Administrative Assistant CITY FAY r1EVILE By: 14/40111/ DA OODY, Mayor Alamosa Properties, L.P. By: Charles B. Sherwood Title: Director of Site Development LR03SW 193 Sang Water Tower/Fayetteville I ACKNOWLEDGMENTS State of ARKANSAS, County of WASHINGTON OWNER: a Notary Public of the County and State aforesaid, certify that personally appeared before me this day and acknowledged that he/she is 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. and seal this S day of her, 2(O1. 0:....... ?e U- 'S 'S bdyc ct:� of Pv : `�, Notary Public 1 {p (S'sj9 Expires: �%-� TENANT: State of Kansas, County of Johnson I, trioLL11 -41-ts -( , a Notary Public of the County and State aforesaid, certify that Charles B. Sherwood, personally appeared before me this day and acknowledged that he is Director of Site Development of Alamosa Properties, L.P., a registered corporation in the State of Texas, 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 seal this )Iy1Day of "", 2002. (SEAL) . tary Public My Commission Expires: A t2 I e: Jolllon Bieel Notary Public State of Kansas My Appointment Erma• � -a I-�o LR03SW 193 Sang Water Tower/Fayetteville :4 •t V • • EXHIBIT A Legal Description of Property Legal Description: A part of the Southwest Quarter of the Northwest Quarter (SW/4 of the NW/4) of Section 17, Township 16, Range 30, also described as the Fayetteville Outlets, a subdivision of the City of Fayetteville, Arkansas, also described as 133 North Sang Ave. Fayetteville, Arkansas. LR03 S W 193 Sang Water Tower/Fayetteville EXHIBIT B Description of Premises Drawing of Premises: Proposed Lease Area / 20'x20' Water Tower FenWlne Proposed Access Easement 15' in width Fenced -in Area Galvanized Cover C _Fxpose0 Mover unee -low nang!ng. Alltel Tower Alltel Tower Prop. Gravel Overlay Ie Ie Aber Marker Access Road I For Alltel Tower Fencellne I Q I * Traneramrerve e MaM1& 21053 624R I 208150 Paved Access Road leading from Sang U NOTE: This Description of Premises to be replaced by a land survey once it is received by the Lessee. 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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 "Premises"), and leases to Tenant a portion of the Premises for construction and occupancy of an equipment shelter or building to house Tenant's equipment on the Premises as more particularly described in Exhibit "A". Owner shall continue to have the right to occupy the Premises and operate the Water 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 the earlier of (i) commencement of installation or (ii) one hundred eighty (180) days after the full execution of the Agreement, (the "Commencement Date") and terminating at midnight five years thereafter. 4. Renewal Term(s). Tenant shall have the right to extend this 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 [ten (10) years and one hundred eighty (180) days from the date of this agreement] the Owner shall have the right to terminate this Is 0 Agreement for any reason, provided the Tenant shall have been notified in writing one hundred and eighty (180) days prior to the expiration date. In the event Owner chooses not to terminate the Agreement, the Tenant shall have the right to extend the Agreement for one (1) additional five (5) year term. However, both parties shall have the right to ask for a renegotiation of the terms and conditions of the Agreement at that time, provided a written notice of the desire to renegotiate terms and conditions is given the other party at least ninety (90) days prior to the Agreement termination date. Notice shall contain an explanation of the items and/or issues to be renegotiated. Owner and Tenant shall have the same rights of termination/negotiation at the end of each successive five (5) year term. 5. Rent. The rental amount for the initial term and subsequent renewal terms shall be as specified in the Special Terms and Conditions of this Agreement. Rental payments shall begin on the Commencement Date and shall be made monthly in advance on 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. Any past due amount shall be shown as such on the following month's billing statement, and shall constitute sufficient notice to the Tenant of the need to bring the account current. Failure to do so within thirty (30) calendar days of the receipt of such notice shall be deemed a default. In the event the Agreement is terminated due to any reason except Tenant's default, Owner shall promptly refund any prepaid rents to Tenant. 6. Maintenance. 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. 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. 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 Lease Agreement, Tenant shall remove, within ninety (90) days thereof, 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 and damage due to casualty 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. Tenant shall be responsible for any damages it may cause to existing or future telecommunications equipment. Tenant shall be obligated to remove all permanent structures down to ground level unless Owner specifically approves of such structure or structures remaining in place. Underground or at grade items, such as slabs on grade, gravel, and vegetation shall not require removal. No underground items shall require removal. 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 satisfy all conditions set forth above. 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, and who are operating in full compliance with all FCC requirements. 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, upon installation and start-up of the Equipment, 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. 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 Tenant's existing equipment and use thereof which may occur as a result of the installation and operation of their equipment. In the event of such interference by a subsequent tenant, Tenant shall have the right to enjoin such interference and if the interference is not remedied within thirty (30) days, Tenant shall have the right to terminate this Agreement immediately. 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, (and all sleeves, conduits and cables necessary thereto), on a formal utility easement specifically given by Owner for that purpose in order to service the Equipment throughout the Initial Term or any Renewal Term of this Agreement. All utilities servicing Tenant's equipment and facilities shall be placed underground. Tenant shall be responsible for all utility connection charges, and all utility use charges, for electricity or any other utility used by Tenant. Tenant shall have access to the Premises and the Equipment at all times, 24 hours each day, through the Owners 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. 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. Upon termination of this Agreement Tenant shall immediately cease its operation, and shall have ninety (90) 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 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. Subsequent tenants may be required to_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 I. 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 biphenyls, 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, mailed by certified mail, return receipt requested, or by overnight service having a record of receipt to the addresses as given in the Special Terms and Conditions of this Agreement. 16. Title and Quiet Enjoyment. Owner represents and warrants that it has the full right, power and authority to execute and enter into this Agreement. Owner further warrants that Tenant shall have the quiet enjoyment of the Premises during the term of this Agreement. In the event the Premises is encumbered by a mortgage or deed of trust, Owner agrees, upon request of Tenant, to obtain and furnish to Tenant a non -disturbance and attornment agreement for each such mortgage or deed of trust, in a form reasonably acceptable to Tenant. Tenant may obtain title insurance on its interest in the Premises. Owner agrees to execute such documents as the title company may require in connection therewith. Notwithstanding any language to the contrary contained herein, Lessor does hereby waive any security interest or lien, inclusive of landlord's lien, whether arising under contract, common law, statute or otherwise in and to Lessee Facilities and other improvements and personal property of Lessee located in, on or about the Tower, Premises or Property. Lessor further recognizes and acknowledges that Lessee intends to enter into or has entered into certain financial arrangements with Citicorp USA, Inc. ("Citicorp"), as administrative agent and collateral agent for itself and various other lenders (the "Lenders"), and, in connection with such financing arrangements, Citicorp and the Lenders will take a security interest in the Lessee Facilities and the products and proceeds thereof (collectively, the "Collateral") to be installed on the property which is the subject of this Antenna Collocation Lease Agreement. Lessor consents to the installation of the Collateral, disclaims any interest in the Collateral, as noted hereinabove, and represents that the Collateral shall be exempt from execution; foreclosure, sale, levy, attachment or S distress from rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. Lessor further represents that such consent and representations noted herein shall inure to the benefit of Lessee, Citicorp, the Lenders and any replacement or refinancing lenders their successors and assigns. Lessor further represents and acknowledges that Citicorp and the Lenders shall have the right to cure any default of Lessee hereunder within the applicable cure period and may, by assuming all of Lessee's obligations herein, be substituted as Lessee hereunder. Nothing contained herein shall be deemed or construed to obligate Citicorp or any of the Lenders or any replacement or refinancing lenders to take any action hereunder or to perform or discharge any indebtedness, liability; obligation or duty of the Lessee under this Antenna Collocation Lease 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 unreasonably withheld, except that Tenant may assign its rights and obligations under this Agreement to an Affiliate. Additionally, Tenant may, upon notice to Owner, mortgage or grant a security interest in this Agreement and the Equipment, and may assign this Agreement and the Equipment to any mortgagees or holders of security interests, including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees interests in this Agreement are subject to all of the terms and provisions of this Agreement. In such event, Owner shall execute such consent to leasehold financing as may reasonably be required by Mortgagees. Owner agrees to notify Tenant and Tenant's Mortgagees simultaneously of any default by Tenant and to give Mortgagees the same right to cure any default as Tenant or to remove any property of Tenant or Mortgagees located on the Premises, except that the cure period for any Mortgagees shall not be less than thirty (30) days after its receipt of the default notice, as provided in this Agreement. All such notices to Mortgagees shall be sent to Mortgagees at the address specified by Tenant. Failure by Owner to give Mortgagees such notice shall not diminish Owner's rights against Tenant, but shall preserve all rights of Mortgagees to cure any default and to remove any property of Tenant or Mortgagees located on the Premises as provided in this Agreement. Owner hereby waives any and all lien rights it may have, statutory or otherwise concerning the Equipment or any portion thereof which shall be deemed personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and Owner gives Tenant and Mortgagees the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in Tenant's and/or Mortgagee's sole discretion and without Owner's consent. 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. General Liability Insurance. Tenant will provide 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. Owner and Tenant shall look initially to insurance for loss due to any peril that is covered by insurance and neither party's insurance company shall be subrogated to a claim against the other party, provided that nothing herein shall be construed to alter, limit or otherwise compromise that immunity afforded the City of Fayetteville under the Constitution and Statutes of the State of Arkansas. Tenant may satisfy the insurance requirements herein by obtaining the appropriate endorsement to any master policy of liability insurance that Tenant maintains. 22. 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. 23. 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. 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. In the event of casualty damage to the Premises or the Equipment, Tenant shall have the right to terminate if in Tenant's judgment the damage hinders its effective use. In the event of condemnation, Tenant shall have the right to any award specifically designated as compensation for Tenant's interest, value of equipment and cost of removal. 24. 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. One Thousand Five Hundred Dollars ($1,500.00) per month 2. Notice Addresses. If to Lessor, to: City of Fayetteville, Arkansas 113 W. Mountain Street Fayetteville, AR 72701 Attn: Greg Boettcher, Director of Public Works Tel. 479-575-8330 with a copy to: Attn: If to Lessee, to: Southwest PCS Properties, LLC P.O. Box 64840 Lubbock, .Texas 75240-4840 Attn: Kelly Alderman, Leasing Administrator Tel: (806) 722-2822 Steven A. Portnoy, Attorney at Law 15851 North Dallas Parkway, Suite 500 Addison, Texas 75001 Tel. (972) 308-8510 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 any easement required for the installation of utilities required for Tenant's operations. (the "Easement") 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 (a form of which is attached). 4. Operational Frequency. The frequency range for Tenant's Equipment is: 1961.25 MHz (Tx) and 1881.25 MHz (Rx). C IN WITNESS WHEREOF, Owner and Tenant have executed Agreement as of the date and year first written above. OWNER: HEATHER WOODRUFF, City Clerk TENANT: ATTEST: By: Title: CITY OF FAYETTEVILLE By: DAN COODY, Mayor Southwest PCS Properties, LLC By: Title: J �� 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 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 seal this _ day of , 20_. (SEAL) Notary Public My Commission Expires: TENANT: State of County of 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 'registered corporation in the State of 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 seal this Day of __________,20___ (SEAL) Notary Public My Commission Expires: 10 I EXHIBIT A Description of Premises Legal Description: A part of the Southwest Quarter of the Northwest Quarter (SW/4 of the NW/4) of Section 17, Township 16, Range 30, also described as the Fayetteville Outlets, a subdivision of the City of Fayetteville, Arkansas, also described as 133 North Sang Ave. Fayetteville, Arkansas. Drawing of Premises: Proposed Lease Area Fence"ne 20' x 20' Proposed Access Easement 15' in width Water Tower /j Galvanized Cover Fenced -in Area (.-Erpmm Pw.er ones. Imv ndnaing, Alltel Tower Ailtel Tower Prop. Gravel Overlay Fiber Matter Access Road For Alltel Tower J Q — — FenceOne Fiber Transformer Box Marl'or 21053 624R 208 150 Paved Access Road leading from Sang Not to Scale NOTE: This Description of Premises to be replaced by a land survey once it is received by the Lessee. EXHIBIT B The Easement 12 C EXHIBIT C The Equipment 13 Exhibit D "Notification of Commencement of Installation of Equipment" 14 • • 1 Exhibit E • Plans for Installation 15 Exhibit F MEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT is entered into on this day of . 20_, by and between the City of Fayetteville and Southwest PCS Properties, LLC, a Delaware limited liability corporation. 1. Owner and Tenant entered into a Communications Site Lease Agreement ("Agreement") on the day of , 20� 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. 2. 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: ATTEST: HEATHER WOODRUFF, City Clerk TENANT: ATTEST: By:_ Title: CITY OF FAYETTEVILLE By: DAN COODY, Mayor SOUTHWEST PCS PROPERTIES, LLC 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 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 seal this _ day of .20 (SEAL) My Commission Expires: TENANT: State of County of certify that Notary Public a Notary Public of the County and State aforesaid, personally appeared before me this day and acknowledged that he/she is of a registered corporation in the State of 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 seal this Day of __________,20 (SEAL) Notary Public My Commission Expires: 17 FAYETTEVILLE THE CITY OF FA YE7TEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: From: Date: Subject: Mayor Dan Coody Members of Fayetteville City Council Greg Boettcher, P.E. Public Works Director August 16, 2002 WATER TANK ATTACHMENT COMMUNICATION SITE LEASE AGREEMENT - SOUTHWEST PCS PROPERTIES BACKGROUND The City of Fayetteville has adopted an ordinance titled "Wireless Communication Facilities" that encourages communication service providers to co -locate on existing towers and structures. Conditional use applications for antennae installations require documentation of efforts to locate the facilities on an existing facility. The City of Fayetteville has allowed communication providers to locate on its water towers and storage tanks, with the following contracts being of record: Alltel @ $1000.00/month; Telecorp @ $500.00/month; Southwest PCS @ $1,250.00/month and Cricket @ $1,500.00/month. Neighboring cities report the following arrangements: Rogers - $1000.00/month; Bentonville — City use only; and Springdale — City use only. DISCUSSION The proposed agreement for location of communication antennaes on the balcony of the Sang Water Tower provides for a lease payment of $1,500.00 per month for an initial term of 5 -years, renewable for an additional 5 -years with both parties' consent. The installation details shall not pose a hazard to the tank's structural integrity, the installation shall be arranged to minimize any adverse aesthetic impact and orientation shall be such as to minimize conflicts with normal water operation/maintenance. The communications company shall maintain proper insurance coverage during the term of the lease. RECOMMENDATION It is recommended that the Fayetteville City Council approve the lease agreement and authorize the Mayor's execution of the document. • STAFF REVIEW FORM • x AGENDA REQUEST CONTRACT REVIEW GRANT REVIEW FOR THE FAYETTEVILLE CITY COUNCIL MEETING OF SEPT 3 2002 FROM: GREG BOEiTCHER PUBLIC WORKS DIRECTOR PUBLIC WORKS NAME DIVISION DEPARTMENT ACTION REQUIRED: APPROVAL OF AN AGREEMENT WITH SOUTHWEST PCS PROPERTIES FOR THE LEASE OF TOWER SPACE ON THE TOWNSHIP WATER TANK. THE PROPOSED LEASE AMOUNT IS $ I ,500.00 PER MONTH, WITH AN INITIAL TERM OF 5 YEARS. COST TO CITY: -$ j$oco_R.tcescoc 1- ifgc.00 •_teo-Awe TZ,c-rar COST OF THIS REQUEST CATEGORY/PROJECT BUDGET CATEGORY/PROJECT NAME SAW-09µU-`µ�o•oo $ *{.O&o —Qtot N.+( ACCOUNT NUMBER FUNDS USED To DATE PROGRAM NAME $ ¶, a[ o -\J') uc vaud . ATelz t &L,se 34 PROJECT NUMBER REMAINING BALANCE yCtl Ub FUND BUDGETED ITEM \-/L -o'- CONTRACT/GRANT/LEASE REVIEW: P toot BUDGET ADJUSTMENT ATTACHED GRANTING AGENCY: ACCOUNTING MANAGER TE ADA COORDINATOR l oZ u,u CITY ATT NEY DATE INTERNAL DITOR PURCHASING OFFICER DATE DIRECTOR' DATE 7II& for DATE STAFF RECOMMENDATION: IT IS THE RECOMMENDATION OF THE STAFF THAT THE COUNCIL APPROVE THE LEASE AGREEMENT WITH SOUTHWEST PCS PROPERTIES FOR CELLULAR ANTENNAE LOCATED ON THE TOWNSHIP WATER TANK. LEASE AMOUNT: $ 1500.00 PER MONTH DIVISION HEAD DATE CRO55 REFERENCE /4. �OL NEW ITEM: YES No PARTME R11+6II1C11/T�I'pR DATE a'- �� PREY ORD/RE5 #: ADMIN VCS DIRECTOR DATE ORIG CONTRACT # �✓ f 6 ORIG CONTRACT DATE:_ MAYOR DATE I COMMENTS: BUDGET COORDINATOR ACCOUNTING MANAGER CITY ATTORNEY PURCHASING OFFICER ADA COORDINATOR INTERNAL AUDITOR STAFF REVIEW FORM MEETING DATE REFERENCE COMMENTS: REFERENCE COMMENTS: REFERENCE COMMENTS: REFERENCE COMMENTS: REFERENCE COMMENTS: REFERENCE COMMENTS: PAGE 2 FAYETTEVII!LE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: Greg Boettcher, Public Works From: Heather Woodruff, City Clerk Date: September 6, 2002 Please find attached a copy of Resolution No. 134-02 approving a Lease Agreement with Southwest PCS Properties, LLC, to locate cellular telephone antennae on the Sang water tank. The original will be microfilmed and filed with the City Clerk. cc: Nancy Smith, Internal Audit Note: The Original Water Tank Attachment Communication Site Lease Agreement has been mailed to Southwest PCS Properties for signatures. iy Mu FAYETTEVItL,E THE CITY OF FAYETTEVIEIE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: Greg Boettcher, Public Works From: Heather Woodruff, City Clerk Date: September 6, 2002 Please find attached a copy of Resolution No. 134-02 approving a Lease Agreement with Southwest PCS Properties, LLC, to locate cellular telephone antennae on the Sang water tank. The original will be microfilmed and filed with the City Clerk. cc: Nancy Smith, Internal Audit Note: The Original Water Tank Attachment Communication Site Lease Agreement has been mailed to Southwest PCS Properties for signatures. ¼ Li � 010 03 City of Fayetteville 9/09/2002 update •dex Maintenance • 14:05:45 Document Item Action Reference Date 'Ref. Taken Brief Description RES 9032002 134 LOCATE CELLULAR ANTENNAE ON SANG Enter Keywords........: RES. 134-02 LEASE AGREEMENT CITY OF FAYETTEVILLE SOUTHWEST PCS PROPERTIES.LLC CELLULAR TELEPHONE ANTENNAE SANG WATER TANK File Reference #......: security Class........: Expiration Date.......: Date for Cont/Referred: Name Referred to......: MICROFILM Retention Type: **** Active **** Cmdl-Return Cmd8-Retention Cmd4-Delete Cmd3-End Press 'ENTER' to Continue Cmd5-Abstract Yes No (c) 1986-1992 Munimetrix systems Corp.