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HomeMy WebLinkAbout118-07 RESOLUTIONRESOLUTION NO. 118-07 A RESOLUTION TO APPROVE A TWENTY-FIVE YEAR LEASE WITH SMITH COMMUNICATIONS. LLC FOR A SMALL LOT IN WALKER PARK FOR A MONOPINE CELL TOWER AT AN ANNUAL RENT OF BETWEEN $12,000.00 AND $54,000.00, PLUS A $20.000.00 CONTRIBUTION TO THE WALKER PARK MURAL PROJECT BE IT RESOLVED BY THE CITY COI NCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville. Arkansas hereby approves the attached Land Lease Agreement with Smith Communications. LLC to lease a small tot in Walker Park for a monopine cell tower at an annual rent of between $12.000.00 and $54,000.00 (depending on the number of cell phone tenants subleased on the tower), plus the City's free use of the cell tower to place at least two city antennas for use of the Water and Sewer Department and/or other City Departments, and the contribution of $20,000.00 by Smith Communications. 1.: LC for the City's Walker Park Mural Project. Section 2: That the City Council of the City of Fayetteville, Arkansas hereby designates the revenues from this lease to park operations and maintenance. llll /I Cc••o�''uG•1•SG' •P3,3•• 3 : FAYETTEVILLE: APPROVE ;t•• •ti :,vs.9pk SP�'�' PASSED and APPROVED this 19'h day of June. 2007. By: D COODY, Mayor ATTEST: SONDRA E. SMITH. City Clerk Treasurer LAND LEASE AGREEMENT This Agreement, made this triti4 day of June, 2007, between the CITY OF FAYETTEVILLE, ARKANSAS, 113 W. Mountain Street, Fayetteville, AR 72701, hereinafter designated FAYETTEVILLE, and SMITH COMMUNICATIONS, LLC, with its principal office located at Smith 2 -Way Communications, 520 N. College Avenue, Fayetteville, AR 72701, hereinafter designated as SMITH COMMUNICATIONS. FAYE11EVILLE and SMITH COMMUNICATIONS are at times collectively referred to hereinafter as the "Parties". 1. PREMISES. FAYETTEVILLE hereby leases to SMITH COMMUNICATIONS, a portion of that certain parcel of property referred to hereinafter as the Walker Park site, located in Washington County, Arkansas, and described in Exhibit "A" attached hereto (the "Land Space"), together with the non-exclusive but constant (24 hours per day, 7 days a week) access and utility easement over, under, or along the existing driveway, said Land Space and easement (hereinafter collectively referred to as the "Premises") being substantially as described herein in Exhibit "A" attached hereto and made a part hereof. SMITH COMMUNICATIONS agrees not to block the driveway at any time and to coordinate and cooperate with the CITY OF FAYETTEVILLE and its Parks Department in their use and access to their facilities. 2. SURVEY. FAYETTEVILLE also hereby grants to SMITH COMMUNICATIONS, the right to survey the Walker Park site and the Premises, and said survey after review and acceptance by FAYETTEVILLE shall then become Exhibit "B" which shall be attached hereto and made a part hereof, and shall control in the event of boundary and access discrepancies between it and Exhibit "A". Cost for such work shall be borne by SMITH COMMUNICATIONS. 3. TERM. This Agreement shall be effective as of the date of execution by both parties, and the initial term of five (5) years shall commence on the first day of the month following the Planning Commission's approval of the conditional use permit for a cell tower at this site, at which time rental payments shall commence and be due at a total monthly rental of One Thousand Dollars ($1,000.00) to be paid on the first day of the month, in advance, to FAYETTEVILLE. 4. EXTENSIONS. This Agreement shall automatically be extended for four (4) additional five (5) year terms unless SMITH COMMUNICATIONS, terminates it at the end of the then current term by giving FAYETTEVILLE written notice of its intent to terminate at least six (6) months prior to the end of the then current term. 5. EXTENSION RENTALS. The monthly rental for the first five year extension term shall be increased by an amount equal to the total CPI increase during the five year penod of the lease; the monthly rental for the second five year extension term shall be further increased by an amount equal to the total CPI increase during the second five year period of the lease; the monthly rental for the third five year extension term shall be further increased by an amount equal to the total CPI increase during the third five year period of the lease; and the monthly rental for the fourth five year extension term shall be further increased by an amount equal to the total CPI increase during the fourth five year period of the lease. 6. USE: GOVERNMENTAL APPROVALS. SMITH COMMUNICATIONS shall use the Premises for the purpose of constructing, maintaining, repairing and operating a communications facility and uses incidental thereto. A security fence consisting of chain Link construction or similar but comparable construction may be placed around the perimeter of the Premises at the discretion of SMITH COMMUNICATIONS, (not Including the access easement). All improvements, equipment and conduits shall be at SMITH COMMUNICATIONS's expense and the installation of all improvements shall be at the discretion and option of SMITH COMMUNICATIONS. SMITH COMMUNICATIONS shall have the right to replace, repair, add or otherwise modify its equipment and/or conduits or any portion thereof and the frequencies over which the equipment operates, whether the equipment, conduits or frequencies are specified or not on any exhibit attached hereto, during the Term. It is understood and agreed that SMITH COMMUNICATIONS's ability to use the Premises is contingent upon its obtaining after the execution date of this Agreement all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may he required by any Federal, State or Local authorities as well as satisfactory soil boring tests which will permit SMITH COMMUNICATIONS use of the Premises as set forth above. FAYETTEVILLE shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by SMITH COMMUNICATIONS. In the event that any of such applications for such Governmental Approvals should be finally rejected; any Governmental Approval issued to SMITH COMMUNICATIONS is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority SMITH COMMUNICATIONS, shall have the right to terminate this Agreement. Notice of SMITH COMMUNICATIONS's exercise of its right to terminate shall be given to FAYETTEVILLE in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by SMITH COMMUNICATIONS, or upon such later date as designated by SMITH COMMUNICATIONS. All rentals paid to said termination date shall be retained by FAYETTEVILLE. Upon such termination. this Agreement shall be of no further force or effect except to the extent of the representations. warranties and indemnities made by each party to the other hereunder. Otherwise, SMITH COMMUNICATIONS shall have no further obligations for the payment of rent to FAYETTEVILLE. If this site becomes technologically unsuitable for SMITH COMMUNICATIONS's purposes, SMITH COMMUNICATIONS may terminate this lease upon ninety days notice. 7. INSURANCE SMITH COMMUNICATIONS agrees that at its own cost and expense, it will maintain commercial general liability insurance with limits not less 2 than $1,000,000 for injury to or death of one or more persons in any one occurrence and $500,000 for damage or destruction to property in any one occurrence. 8. LIMITATION OF LIABILITY. In no event will either FAYETTEVILLE or SMITH COMMUNICATIONS be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, Toss of data, or loss or interruption of use of service, under any theory of tort, strict liability or negligence. 9. INTERFERENCE. SMITH COMMUNICATIONS agrees to install equipment of the type and frequency which will not cause material interference which is measurable in accordance with then existing industry standards to any equipment of FAYETTEVILLE or its lessees of the Property. In the event any after -installed SMITH COMMUNICATIONS's equipment causes such interference, and after FAYETTEVILLE has notified SMITH COMMUNICATIONS in writing of such interference, SMITH COMMUNICATIONS will take all commercially reasonable steps necessary to correct and eliminate the interference, including but not limited to, at SMITH COMMUNICATIONS's option, powering down such equipment and later powering up such equipment for intermittent testing. In no event will FAYETTEVILLE be entitled to terminate this Agreement or relocate the equipment as long as SMITH COMMUNICATIONS is making a good faith effort to remedy the interference issue. SMITH COMMUNICATIONS agrees to indemnify and hold Fayetteville harmless from any claim by other tenants that SMITH COMMUNICATIONS's equipment has damaged or interfered with their equipment or service to their customers. FAYETTEVILLE agrees that it or other tenants of the Property who currently have or in the future take possession of the Property will be permitted to install only such equipment that is of the type and frequency which will not cause material interference which is measurable in accordance with then existing industry standards to the then existing equipment of SMITH COMMUNICATIONS. 10. REMOVAL AT END OF TERM. SMITH COMMUNICATIONS shall, upon expiration of the Term, or within ninety (90) days after any earlier termination of the Agreement, remove its building(s), antenna structure(s) (except footings), equipment, conduits, fixtures and all personal property and restore the Premises to its original condition, reasonable wear and tear and casualty damage excepted. FAYETTEVILLE agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of SMITH COMMUNICATIONS shall remain the personal property of SMITH COMMUNICATIONS and SMITH COMMUNICATIONS shall have the right to remove the same at any time during the Term, whether or not said items are considered fixtures and attachments to real property under applicable Laws. If such time for removal causes SMITH COMMUNICATIONS to remain on the Premises after termination of this Agreement, SMITH COMMUNICATIONS shall pay rent at the then existing monthly rate or on the existing monthly pro -rata basis if based upon a longer payment term, until 3 such time as the removal of the building, antenna structure, fixtures and all personal property are completed. 11. QUIET ENJOYMENT. FAYETTEVILLE covenants that SMITH COMMUNICATIONS, on paying the rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. FAYETTEVILLE agrees that this lease shall survive and remain in force if FAYETTEVILLE sells or transfers any part of the Land Space. 12. TITLE. FAYETTEVILLE represents and warrants to SMITH COMMUNICATIONS as of the execution date of this Agreement, and covenants during the Term that FAYETTEVILLE is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement and that there are no covenants, easement or restrictions which prevent or adversely affect the use of occupancy of the Premises by SMITH COMMUNICATIONS as set forth above. 13. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between FAYETTEVILLE and SMITH COMMUNICATIONS and that no verbal or oral agreements, promises or understandings shall be binding upon either FAYETTEVILLE or SMITH COMMUNICATIONS. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, in law or in equity 14. GOVERNING LAW. This Agreement and the performance thereof shall be governed, interpreted construed and regulated by the laws of Arkansas and venue shall be in Washington County. 15. ASSIGNMENT. This Agreement may be sold, assigned or transferred by SMITH COMMUNICATIONS without any approval or consent of FAYETTEVILLE to SMITH COMMUNICATIONS's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of SMITH COMMUNICATIONS's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition or other business reorganization. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of FAYETTEVILLE, which such consent will not be unreasonably withheld or delayed. No change of stock ownership or control of SMITH COMMUNICATIONS shall constitute an assignment hereunder. SMITH COMMUNICATIONS may sublease any portion of the Property at its sole discretion upon notice to FAYETTEVILLE. Any sublease that is entered into by SMITH 4 COMMUNICATIONS shall be subject to the provisions of this Agreement and shall be binding upon the successors, assigns, heirs and legal representatives of the respective parties hereto. The term "Sublease", "Sublet", "Sublessee" and any other similar term shall apply to any situation by which SMITH COMMUNICATIONS allows a third party use of the Property for co -location, whether it be by formal sublease, license or other agreement. All rights and responsibilities of SMITH COMMUNICATIONS set forth in this Agreement shall be enjoyed by and binding on any Sublessee. (a) In the event SMITH COMMUNICATIONS subleases any portion of the Property, in accordance with this Agreement, any rental paid by any Sublessee(s) shall be divided between FAYETTEVILLE and SMITH COMMUNICATIONS in the following manner: (i) The first cell phone carrier's antenna array is paid for by the monthly rent charged to SMITH COMMUNICATIONS pursuant to this Land Lease Agreement; (ii) The gross rental paid by (and the gross value of any other type of consideration received from) the business using the second set of cell phone antennas shall be divided with 75% of the gross going to SMITH COMMUNICATIONS and 25% to FAYETTEVILLE; (iii) The gross rental paid by (and the gross value of any other type of consideration received from) the business using the third and any subsequent set of cell phone antennas shall be divided with 50% of the gross going to SMITH COMMUNICATIONS and 50% to FAYETTEVILLE. Any Sublessee shall be instructed to pay the foregoing percentage amounts directly to SMITH COMMUNICATIONS. SMITH COMMUNICATIONS shall be responsible to Fayetteville for the collection or payment of rents by the Sublessee and their remittance to FAYETTEVILLE. However, SMITH COMMUNICATIONS shall have no liability to FAYETTEVILLE in the event of failure of payment by Sublessee. In this event, SMITH COMMUNICATIONS shall have no liability of any nature to FAYETTEVILLE for failure to sublet all or any part of the premises to any or all potential Sublessee(s); SMITH COMMUNICATIONS will provide FAYETTEVILLE with all agreements that have been executed by SMITH COMMUNICATIONS and its Sublessee. (b) Notwithstanding any other provision of this Agreement, SMITH COMMUNICATIONS shall not be required to obtain approval from FAYETTEVILLE for the subletting of the Property or part thereof. SMITH COMMUNICATIONS shall have the sole right to determine whether it will Sublet any portion of the Property or whether it will sublease to any specific Sublessee. 16. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): 5 FAYETTEVILLE: SMITH COMMUNICATIONS, LLC: CITY OF FAYETTEVILLE Office of the Mayor 113 W. Mountain Street Fayetteville, AR 72701 SMITH COMMUNICATIONS, LLC ATTN: Michael B. Smith 520 N. College Avenue Fayetteville. AR 72701 Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 17. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representative successors and assigns of the Parties hereto. 18. DEFAULT. (a) In the event there is a breach by SMITH COMMUNICATIONS with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, FAYETTEVILLE shall give SMITH COMMUNICATIONS written notice of such breach. After receipt of such written notice, SMITH COMMUNICATIONS shall have fifteen (15) days in which to cure any monetary breach and thirty (30) days in which to cure any non -monetary breach, provided SMITH COMMUNICATIONS shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and SMITH COMMUNICATIONS commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. FAYETTEVILLE may not maintain any action or effect any remedies for default against SMITH COMMUNICATIONS unless and until SMITH COMMUNICATIONS has failed to cure the breach within the time penods provided in this Paragraph. However, repetitive breaches relating to blocking or interfering with the access easement or the rights of other tenants to successfully operate their equipment without electronic or other interference shall give FAYETTEVILLE the right to terminate this contract even if such breaches are temporary and cured within thirty days. (b) In the event there is a breach by FAYETTEVILLE with respect to any of the provisions of this Agreement or its obligations under it, SMITH COMMUNICATIONS shall give FAYETTEVILLE written notice of such breach. After receipt of such written notice, FAYETTEVILLE shall have thirty (30) days in which to cure any such breach, provided FAYETTEVILLE shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and FAYETTEVILLE commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. SMITH COMMUNICATIONS may not maintain any action or effect any remedies for default 6 against FAYETTEVILLE unless and until FAYETTEVILLE has failed to cure the breach within the time periods provided in this Paragraph. Notwithstanding the foregoing to the contrary, it shall be a default under this Agreement if FAYETTEVILLE fails, within five (5) days after receipt of written notice of such breach, to perform an obligation required to be performed by FAYETTEVILLE if the failure to perform such an obligation interferes with SMITH COMMUNICATIONS's ability to conduct its business on the Property; provided, however, that if the nature of FAYETTEVILLE's obligation is such that more than five (5) days after such notice is reasonably required for its performance, then it shall not be a default under this Agreement if performance is commenced within such five (5) day period and thereafter diligently pursued to completion. 19. REMEDIES. Upon a default, the non -defaulting party may at its option (but without obligation to do so), perform the defaulting party's duty or obligation on the defaulting party's behalf. The costs and expenses of any such performance by the non - defaulting party shall be due and payable by the defaulting party upon invoice therefor. In the event of a default by either party with respect to a material provision of this Agreement, without limiting the non -defaulting party in the exercise of any right or remedy which the non -defaulting may have by reason of such default, the non -defaulting party may terminate the Agreement and/or pursue any remedy now or hereafter available to the non -defaulting party under the laws or judicial decisions of the state in which the Premises are located; provided, however, FAYETTEVILLE and SMITH COMMUNICATIONS shall use reasonable efforts to mitigate any damages in connection with a default by FAYETTEVILLE or SMITH COMMUNICATIONS. If SMITH COMMUNICATIONS so performs any of FAYETTEVILLE's obligations hereunder, the full amount of the reasonable and actual cost and expense incurred by SMITH COMMUNICATIONS shall immediately be owing by FAYETTEVILLE to SMITH COMMUNICATIONS, and FAYETTEVILLE shall pay to SMITH COMMUNICATIONS upon demand the full undisputed amount thereof with Interest thereon from the date of payment at the highest rate permitted by applicable Laws. Notwithstanding the foregoing, if FAYETTEVILLE does not pay SMITH COMMUNICATIONS the full undisputed amount within thirty (30) days of its receipt of an invoice setting forth the amount due from SMITH COMMUNICATIONS, SMITH COMMUNICATIONS may offset the full undisputed amount, including all accrued interest, due against all fees due and owing to FAYETTEVILLE until the full undisputed amount, including all accrued interest, is fully reimbursed to SMITH COMMUNICATIONS. 20. CASUALTY. In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within forty-five (45) days following the event, SMITH COMMUNICATIONS may terminate this by sending written notice to FAYETTEVILLE. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment, as of such termination date, with respect to 7 payments due to the other under this Agreement. Notwithstanding the foregoing, the rent shall abate during the period of repair following such fire or other casualty in proportion to the degree to which SMITH COMMUNICATIONS's use of the Premises is impaired. 21. CONDEMNATION. In the event of any condemnation of all or any portion of the Property, this Agreement shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever occurs first. If as a result of a partial condemnation of the Premises or Property, SMITH COMMUNICATIONS, in SMITH COMMUNICATIONS's sole discretion, is unable to use the Premises for the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt SMITH COMMUNICATIONS's operations at the Premises for more than forty- five (45) days, SMITH COMMUNICATIONS may, at SMITH COMMUNICATIONS's option, to be exercised in writing within fifteen (15) days after FAYETTEVILLE shall have given SMITH COMMUNICATIONS written notice of such taking (or in the absence of such notice, within fifteen (15) days after the condemning authority shall have taken possession) terminate this Agreement as of the date the condemning authority takes such possession. SMITH COMMUNICATIONS may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to the equipment, conduits, fixtures, its relocation costs and its damages and losses. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under this Agreement,. SMITH COMMUNICATIONS does not terminate this Agreement in accordance with the foregoing, this Agreement shall remain in full force and effect as to the portion of the Premises remaining, except that the rent shall be reduced in the same proportion as the rentable area of the Premises taken bears to the total rentable area of the Premises. In the event that this Agreement is not terminated by reason of such condemnation, SMITH COMMUNICATIONS shall promptly repair any damage to the Premises caused by such condemning authority. 22. SUBMISSION OF AGREEMENT/PARTIAL INVALIDITY/AUTHORITY. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate the remaining provisions of this Agreement. Each of the Parties hereto warrants to the other that the person or persons executing this Agreement on behalf of such Party has the full right, power and authority to enter into and execute this Agreement on such Partys behalf and that no consent from any other person or entity is necessary as a condition precedent to the legal effect of this Agreement. 23. APPLICABLE LAWS SMITH COMMUNICATIONS shall, in respect to the condition of the Premises and at SMITH COMMUNICATIONS's sole cost and expense, comply with (a) all Laws relating solely to SMITH COMMIJNICATIONS's 8 specific and unique nature of use of the Premises; and (b) all building codes requiring modifications to the Premises due to the improvements being made by SMITH COMMUNICATIONS in the Premises. 24. SURVIVAL. Any provisions of this Agreement which require performance subsequent to the termination or expiration of this Agreement shall also survive such termination or expiration. 25. CAPTIONS. The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the construction or interpretation of the Agreement. 26. CITY OF FAYETTEVILLE'S RIGHT TO USE TOWER. As an express condition for this lease and for the reduced rental payments demanded from SMITH COMMUNICATIONS, SMITH COMMUNICATIONS agrees to provide FAYETTEVILLE adequate access to and use of the tower and Leased Property to install antennas at sufficient height and location to fulfill the needs of FAYETTEVILLE and its operating departments FAYETTEVILLE agrees to cooperate with SMITH COMMUNICATIONS in the placement of its antennas to attempt to avoid interfering with SMITH COMMUNICATIONS's or sublessees' use of the tower for cell phone purposes. 27. WALKER PARK MURAL DONATION. SMITH COMMUNICATIONS, LLC agrees to contribute $20,000.00 to the Walker Park Mural project upon approval of this contract by the City Council and approval of its conditional use permit request for the proposed cell tower by the Planning Commission. IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals the day and year first above written. SMITH COMMUNICATIONS, LLC By MICHAEL B. SMITH President CITY OF FAYETTEVILLE By: Attest 9 1 AN COODY Mayor Sondra E. Smith, City Clerk/Treasurer City of Fayetteville Staff Review Form City Council Agenda Items Or Contracts 1 -May -07 City Council Meeting Date Connie Edmonston a (/ Parks & Recreation Submitted By Division Action Required: /SES //a giro+ (ntnnummettchei, Pre - Operations Department Resolution to authorize the Mayor to process a Conditional Use Application for a cell tower in Walker Park. n/a Cost of this request Account Number Project Number Budgeted Item Category/Project Budget Funds Used to Date Remaining Balance Budget Adjustment Attached Gulley Park Improvements Program Category / Project Name Gulley Park Improvements Program / Project Category Name Parks Development Sales Tax Fund Name DeP a ment Dir or e City Atto y 4'9•x7 Date `t- 18-o7 Finance and Internal Service Director Date M 'Comments: E -1-2/C) Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: Received in Mayor's Office %tiled la//1th?i (''InoicifVe 6/9/61 1 bkrfrio kci6 1611 (XL)ettakc II 5((O7 CITY COUNCIL AGENDA MEMO To: Mayor Dan Coody and City Council Thru: Gary Dumas, Operations Director From: Connie Edmonston, Parks and Recreation Director Date: April 12, 2007 Subject: Resolution to authorize the Mayor to process a Conditional Use application for a cell tower in Walker Park BACKGROUND Smith Communications has submitted a request to place a 150 foot cell tower within the confines of Walker Park. This tower would be configured as a Monopme camo-mount to blend into the forest canopy and imitate the appearance of a pine tree. This request would be similar to the cell tower lease and contract that was approved at the new Fire Station in Routh Park. Representatives of Smith Communications toured the Walker Park area with Park Staff and found the best location would be adjacent to the parking lot located north of 13th Street and Block. The tower would require a 30 foot road and utility easement from the northeast comer of the parking lot leading to a 3,600 square foot area in which the tower would be located. The area would be screened with a wood fence and landscaping. Many areas within Walker Park were not considered because they were not accessible to tower service vehicles, in too close proximity to active recreation areas, or were within the floodway. There are two areas of Walker Park that are included in an Arkansas Parks and Tourism Outdoor Recreation Grant provision that secures in perpetuity the use of these areas for outdoor recreational use only. Several grant projects were awarded in these areas to build the skate park in the northwest section and the playground, restroom and racquetball court on the southern portion. The location of a cell tower would be prohibited in these areas These areas are noted as A and B on the attached map. The western two thirds of the Block Street parking lot is not owned by the City. The request for a 30 year lease with Smith Communications for a cell tower in Walker Park was presented to the Parks and Recreation Advisory Board (PRAB) on March 5, 2007. PRAB toured the site with David Reynolds from Smith Communications and unanimously voted to table the vote to a Special Board meeting on March 15, 2007. On March 15th PRAB voted (5-3) against the proposed placement of the cell tower in Walker Park. Discussion included statements related to the incompatibility of a cell tower with the relative natural forested setting of Walker Park. Other members were concemed about potentially establishing a precedent for placing towers in parks and the long length of the lease that could conflict with the future use of the park. There was some discussion about distorting or obscunng the view from the downtown area to Walker Park. PRAB members voting for the cell tower stated that if the tower was going City Council Meeting of May 1, 2007 Agenda Item Number to be placed in that area and be visible from the park, they would like the Parks to receive the revenue instead of another entity (See attached PRAB March 5 and 15, 2007 minutes.) DISCUSSION Unified Development Code Title XV, section 163.14 Wireless Communications Facilities (F), states the City "...should actively market its own property and existing structures as suitable co -location sites." Even though the Parks and Recreation Advisory Board voted against the tower to be located in Walker Park, Smith Communications is asking the City Council if a portion of Walker Park could be leased for the tower. (See attached letter.) This submission is not a request for the approval of the cell tower, but a to allow a petition to the Planning Comission to determine land use campatibility in Walker Park for the tower. If approved by the City Council, a lease agreement will be forwarded for consideration In order for Smith Communication to complete the Planning Commission Conditional Use Application, they must have the approval of the City to lease the land In this instance in which PRAB recommended denial of the use of Walker Park for the cell tower placement, it is essential to determine the intent of City Council before Smith Communications proceeds with the Conditional Use Application. Smith Communications must know if the City would lease the land before they continue to the Planning Commission for final determination. BUDGET IMPACT The contract between the City and Smith Communications would be very similar to the contract for the Fire Station at Routh Park. This would be a 30 year lease allowing up to five Garners on the tower. The City could receive monthly revenues of $3,500 to $4,500 depending on the number of carriers and the contract negotiated by our City Attorney. Smith Communications has also agreed to donate $20,000 to the Walker Park Mural project to help with it's completion to include three kiosk signs, audio recordings related to the depictions on the mural and a sidewalk around the perimeter for ADA accessibility. Attachments: Smith Communication Proposal Smith Communication Letter Walker Park Map PRAB Meeting Minutes of March 5 and 15, 2007 2 FAYETTEVILLE THE CRY OF FAYETTEVILLE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEG AI, DEPARTMENT TO: Dan Coody, Mayor City Council Connie Edmonston, Parks & Recreation Division Head FROM: Kit Williams, City Attorney DATE: April 18, 2007 RE• Monopole cell tower proposed for Walker Park I have drafted a very similar potential contract to lease land in Walker Park to a cell tower company as was done next to the Fire Station at Hwy. 265 and Old Wire Road. This cell tower would generate: (a) $20,000.00 contribution to the Walker Park Mural Project; (b) Free City use of the tower for at least two needed antennas; (c) $12,000.00 to $54,000.00 annual rent (depending on how many cell phone tenants locate on the tower). The rent is linked to the CPI and will increase with inflation. The City Council's policy outlined in its cell tower ordinance is to locate cell towers on city land where feasible. However, if the City Council does not wish to locate this in a partially obscured location off a parking lot in Walker Park, the cell tower company will likely locate it right across 15`h Street which will be plainly visible from Walker Park, but not physically inside our park's borders. LAND LEASE AGREEMENT This Agreement, made this day of May, 2007, between the CITY OF FAYETTEVILLE, ARKANSAS, 113 W. Mountain Street, Fayetteville, AR 72701, hereinafter designated FAYETTEVILLE, and CALLAHAN TOWER JOINT VENTURE, with its principal office located at Callahan Tower. 520 N. College Avenue, Fayetteville, AR 72701, hereinafter designated as CALLAHAN. FAYETTEVILLE and CALLAHAN are at times collectively referred to hereinafter as the "Parties". I. PREMISES. FAYETTEVILLE hereby leases to CALLAHAN a portion of that certain parcel of property referred to hereinafter as the Walker Park site, located in Washington County, Arkansas, and described in Exhibit "A" attached hereto (the "Land Space"), together with the non-exclusive but constant (24 hours per day, 7 days a week) access and utility easement over, under, or along the existing driveway, said Land Space and easement (hereinafter collectively referred to as the "Premises") being substantially as described herein in Exhibit "A" attached hereto and made a part hereof. CALLAHAN agrees not to block the driveway at any time and to coordinate and cooperate with the CITY OF FAYETTEVILLE and its Parks Department in their use and access to their facilities. 2. SURVEY. FAYETTEVILLE also hereby grants to CALLAHAN the right to survey the Walker Park site and the Premises, and said survey after review and acceptance by FAYETTEVILLE shall then become Exhibit "B" which shall be attached hereto and made a part hereof, and shall control in the event of boundary and access discrepancies between it and Exhibit "A". Cost for such work shall be borne by CALLAHAN. 3. TERM. This Agreement shall be effective as of the date of execution by both parties, and the initial term of five (5) years shall commence on the first day of the month following the Planning Commission's approval of the conditional use permit for a cell tower at this site, at which time rental payments shall commence and be due at a total monthly rental of One Thousand Dollars ($1,000.00) to be paid on the first day of the month, in advance, to FAYETTEVILLE. 4. EXTENSIONS. This Agreement shall automatically be extended for four (4) additional five (5) year terms unless CALLAHAN terminates it at the end of the then current term by giving FAYETTEVILLE written notice of its intent to terminate at least six (6) months prior to the end of the then current term. 5. EXTENSION RENTALS. The monthly rental for the first five year extension term shall be increased by an amount equal to the total CPI increase during the five year period of the lease; the monthly rental for the second five year extension term shall be further increased by an amount equal to the total CP1 increase during the second five year period of the lease; the monthly rental for the third five year extension term shall be further increased by an amount equal to the total CPI increase during the third five year period of the lease; and the monthly rental for the fourth five year extension term shall be further increased by an amount equal to the total CPI increase during the fourth five year period of the lease. 6. USE: GOVERNMENTAL APPROVALS. CALLAHAN shall use the Premises for the purpose of constructing, maintaining, repairing and operating a communications facility and uses incidental thereto. A security fence consisting of chain link construction or similar but comparable construction may be placed around the perimeter of the Premises at the discretion of CALLAHAN (not including the access easement). All improvements, equipment and conduits shall be at CALLAHAN's expense and the installation of all improvements shall be at the discretion and option of CALLAHAN. CALLAHAN shall have the right to replace, repair, add or otherwise modify its equipment and/or conduits or any portion thereof and the frequencies over which the equipment operates, whether the equipment, conduits or frequencies are specified or not on any exhibit attached hereto, during the Term. It is understood and agreed that CALLAHAN's ability to use the Premises is contingent upon its obtaining after the execution date of this Agreement all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or Local authorities as well as satisfactory soil boring tests which will permit CALLAHAN use of the Premises as set forth above. FAYETTEVILLE shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by CALLAHAN. In the event that any of such applications for such Governmental Approvals should be finally rejected; any Governmental Approval issued to CALLAHAN is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority CALLAHAN shall have the right to terminate this Agreement. Notice of CALLAHAN's exercise of its right to terminate shall be given to FAYETTEVILLE in writing by certified mail, return receipt requested, and shall be effective upon the mailing of such notice by CALLAHAN, or upon such later date as designated by CALLAHAN. All rentals paid to said termination date shall be retained by FAYETTEVILLE. Upon such termination, this Agreement shall be of no further force or effect except to the extent of the representations, warranties and indemnities made by each party to the other hereunder. Otherwise, CALLAHAN shall have no further obligations for the payment of rent to FAYETTEVILLE. If this site becomes technologically unsuitable for CALLAHAN's purposes, CALLAHAN may terminate this lease upon ninety days notice. 7. INSURANCE. CALLAHAN agrees that at its own cost and expense, it will maintain commercial general liability insurance with limits not less than $1,000,000 for injury to or death of one or more persons in any one occurrence and $500,000 for damage or destruction to property in any one occurrence. 8. LIMITATION OF LIABILITY. In no event will either FAYETTEVILLE or CALLAHAN be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or loss or interruption of use of service, under any theory of tort, strict liability or negligence. 9. INTERFERENCE. CALLAHAN agrees to install equipment of the type and frequency which will not cause material interference which is measurable in accordance with then existing industry standards to any equipment of FAYETTEVILLE or its lessees of the Property. In the event any after -installed CALLAHAN's equipment causes such interference, and after FAYETTEVILLE has notified CALLAHAN in writing of such interference, CALLAHAN will take all commercially reasonable steps necessary to correct 2 and eliminate the interference, including but not limited to, at CALLAHAN's option, powering down such equipment and later powering up such equipment for intermittent testing. In no event will FAYETTEVILLE be entitled to terminate this Agreement or relocate the equipment as long as CALLAHAN is making a good faith effort to remedy the interference issue. CALLAHAN agrees to indemnify and hold Fayetteville harmless from any claim by other tenants that CALLAHAN's equipment has damaged or interfered with their equipment or service to their customers. FAYETTEVILLE agrees that it or other tenants of the Property who currently have or in the future take possession of the Property will be permitted to install only such equipment that is of the type and frequency which will not cause material interference which is measurable in accordance with then existing industry standards to the then existing equipment of CALLAHAN. 10. REMOVAL AT END OF TERM. CALLAHAN shall, upon expiration of the Term, or within ninety (90) days after any earlier termination of the Agreement, remove its building(s), antenna structure(s) (except footings), equipment, conduits, fixtures and all personal property and restore the Premises to its original condition, reasonable wear and tear and casualty damage excepted. FAYETTEVILLE agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of CALLAHAN shall remain the personal property of CALLAHAN and CALLAHAN shall have the right to remove the same at any time during the Term, whether or not said items are considered fixtures and attachments to real property under applicable Laws. If such time for removal causes CALLAHAN to remain on the Premises after termination of this Agreement, CALLAHAN shall pay rent at the then existing monthly rate or on the existing monthly pro -rata basis if based upon a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal property are completed. 11. OUIET ENJOYMENT. FAYETTEVILLE covenants that CALLAHAN, on paying the rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. FAYETTEVILLE agrees that this lease shall survive and remain in force if FAYETTEVILLE sells or transfers any part of the Land Space. 12. TITLE. FAYETTEVILLE represents and warrants to CALLAHAN as of the execution date of this Agreement, and covenants during the Term that FAYETTEVILLE is seized of good and sufficient title and interest to the Property and has full authority to enter into and execute this Agreement and that there are no covenants, easement or restrictions which prevent or adversely affect the use of occupancy of the Premises by CALLAHAN as set forth above. 13. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between FAYETTEVILLE and CALLAHAN and that no verbal or oral agreements, promises or understandings shall be binding upon either FAYETTEVILLE or CALLAHAN. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to 3 enforce such rights at any time and take such action as may be lawful and authorized under this Agreement, in law or in equity. 14. GOVERNING LAW. This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of Arkansas and venue shall be in Washington County. 15. ASSIGNMENT. This Agreement may be sold, assigned or transferred by CALLAHAN without any approval or consent of FAYETTEVILLE to CALLAHAN's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of CALLAHAN's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition or other business reorganization. As to other parties, this Agreement may not be sold, assigned or transferred without the written consent of FAYETTEVILLE, which such consent will not be unreasonably withheld or delayed. No change of stock ownership or control of CALLAHAN shall constitute an assignment hereunder. CALLAHAN may sublease any portion of the Property at its sole discretion upon notice to FAYETTEVILLE. Any sublease that is entered into by CALLAHAN shall be subject to the provisions of this Agreement and shall be binding upon the successors, assigns, heirs and legal representatives of the respective parties hereto. The term "Sublease", "Sublet' , "Sublessee" and any other similar term shall apply to any situation by which CALLAHAN allows a third party use of' the Property for co -location, whether it be by formal sublease, license or other agreement. All rights and responsibilities of CALLAHAN set forth in this Agreement shall be enjoyed by and binding on any Sublessee. (a) In the event CALLAHAN subleases any portion of the Property, in accordance with this Agreement, any rental paid by any Sublessee(s) shall be divided between FAYETTEVILLE and CALLAHAN in the following manner: (i) The first cell phone carrier's antenna array is paid for by the monthly rent charged to CALLAHAN pursuant to this Land Lease Agreement; (ii) The gross rental paid by (and the gross value of any other type of consideration received from) the business using the second set of cell phone antennas shall be divided with 75% of the gross going to CALLAHAN and 25% to FAYETTEVILLE; (iii) The gross rental paid by (and the gross value of any other type of consideration received from) the business using the third and any subsequent set of cell phone antennas shall be divided with 50% of the gross going to CALLAHAN and 50% to FAYETTEVILLE. Any Sublessee shall be instructed to pay the foregoing percentage amounts directly to CALLAHAN. CALLAHAN shall be responsible to Fayetteville for the collection or payment of rents by the Sublessee and their remittance to FAYETTEVILLE. However, CALLAHAN shall have no liability to FAYETTEVILLE in the event of failure of payment by Sublessee. In this event, CALLAHAN shall have no liability of any nature to FAYETTEVILLE for failure to sublet all or any part of the premises to any or all potential Sublessee(s); CALLAHAN will provide FAYETTEVILLE with all agreements that have been executed by CALLAHAN and its Sublessee. (b) Notwithstanding any other provision of this Agreement, CALLAHAN shall not be required to obtain approval from FAYETTEVILLE for the subletting of the Property or 4 part thereof. CALLAHAN shall have the sole right to determine whether it will Sublet any portion of the Property or whether it will sublease to any specific Sublessee. 16. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): FAYETTEVILLE: CITY OF FAYETTEVILLE Office of the Mayor 113 W. Mountain Street Fayetteville, AR 72701 CALLAHAN: CALLAHAN TOWER JOINT VENTURE ATTN: Jason Steele 520 N. College Avenue Fayetteville, AR 72701 Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 17. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representative, successors and assigns of the Parties hereto. 18. DEFAULT. (a) In the event there is a breach by CALLAHAN with respect to any of the provisions of this Agreement or its obligations under it, including the payment of rent, FAYETTEVILLE shall give CALLAHAN written notice of such breach. After receipt of such written notice, CALLAHAN shall have fifteen (15) days in which to cure any monetary breach and thirty (30) days in which to cure any non -monetary breach, provided CALLAHAN shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and CALLAHAN commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. FAYETTEVILLE may not maintain any action or effect any remedies for default against CALLAHAN unless and until CALLAHAN has failed to cure the breach within the time periods provided in this Paragraph. However, repetitive breaches relating to blocking or interfering with the access easement or the rights of other tenants to successfully operate their equipment without electronic or other interference shall give FAYETTEVILLE the right to terminate this contract even if such breaches are temporary and cured within thirty days. (b) In the event there is a breach by FAYETTEVILLE with respect to any of the provisions of this Agreement or its obligations under it, CALLAHAN shall give FAYETTEVILLE written notice of such breach. After receipt of such written notice, 5 FAYETTEVILLE shall have thirty (30) days in which to cure any such breach, provided FAYETTEVILLE shall have such extended period as may be required beyond the thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days and FAYETTEVILLE commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. CALLAHAN may not maintain any action or effect any remedies for default against FAYETTEVILLE unless and until FAYETTEVILLE has failed to cure the breach within the time periods provided in this Paragraph. Notwithstanding the foregoing to the contrary, it shall be a default under this Agreement if FAYETTEVILLE fails, within five (5) days after receipt of written notice of such breach, to perform an obligation required to be performed by FAYETTEVILLE if the failure to perform such an obligation interferes with CALLAHAN's ability to conduct its business on the Property; provided, however, that if the nature of FAYETTEVILLE's obligation is such that more than five (5) days after such notice is reasonably required for its performance, then it shall not be a default under this Agreement if performance is commenced within such five (5) day period and thereafter diligently pursued to completion. 19. REMEDIES. Upon a default, the non -defaulting party may at its option (but without obligation to do so), perform the defaulting party's duty or obligation on the defaulting party s behalf. The costs and expenses of any such performance by the non - defaulting party shall be due and payable by the defaulting party upon invoice therefor. In the event of a default by either party with respect to a material provision of this Agreement, without limiting the non -defaulting party in the exercise of any right or remedy which the non -defaulting may have by reason of such default, the non -defaulting party may terminate the Agreement and/or pursue any remedy now or hereafter available to the non -defaulting party under the laws or judicial decisions of the state in which the Premises are located; provided, however, FAYETTEVILLE and CALLAHAN shall use reasonable efforts to mitigate any damages in connection with a default by FAYETTEVILLE or CALLAHAN. If CALLAHAN so performs any of FAYETTEVILLE's obligations hereunder, the full amount of the reasonable and actual cost and expense incurred by CALLAHAN shall immediately be owing by FAYETTEVILLE to CALLAHAN, and FAYETTEVILLE shall pay to CALLAHAN upon demand the full undisputed amount thereof with interest thereon from the date of payment at the highest rate permitted by applicable Laws. Notwithstanding the foregoing, if FAYETTEVILLE does not pay CALLAHAN the full undisputed amount within thirty (30) days of its receipt of an invoice setting forth the amount due from CALLAHAN, CALLAHAN may offset the full undisputed amount, including all accrued interest, due against all fees due and owing to FAYETTEVILLE until the full undisputed amount, including all accrued interest, is fully reimbursed to CALLAHAN. 20. CASUALTY. In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within forty-five (45) days following the event, CALLAHAN may terminate this by sending written notice to FAYETTEVILLE. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under this Agreement. Notwithstanding the foregoing, the rent shall abate during the period of repair following such 6