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Home My WebLink About119-07 RESOLUTIONRESOLUTION NO. 119-07 A RESOLUTION TO APPROVE A LEASE WITH SMITH COMMUNICATIONS FOR A CELL TOWER SITE IN THE SOUTH INDUSTRIAL_ SITE FOR AN INITIAL RENTAL OF $850.00 MONTHLY WITH 50/50 REVENUE SHARING OF ALL CELL PHONE ANTENNA REVENUE AFTER THE INITIAL SUBLESSEE WHEREAS, Smith Communications desires to lease a portion of Lot 19.1 E of the South Industrial Park to construct a 150 foot cell tower; and WHEREAS. the City has entered into a lease with similar terms for the Old Wire Road Fire Station site; and WHEREAS, if Emergency Dispatch (9-1-1), the City of Fayetteville or its operating departments need to place governmental antennas upon the cell tower, Smith Communications shall provide access for city antennas on this tower for no rent or other charges. NOW, THEREFORE, 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 the Land Lease Agreement with Smith Communications to lease a portion of Lot 19.1 E of the South Industrial Park pursuant to the terms of the attached contract conditional upon Smith Communications receiving a from the City and any and all other necessary governmental approvals. '^ "n""" By: conditional use PASSED and APPROVED this 19'h day of June. 2007. APPROVED: 1 DA GOODY, Mayor By A11 EST: ,-�G �t•&S Y O,c• •. pi sV' •13 S. "s :FAYETTEVILLE: il • :S-; Y�•• !� �Qoi. d'••. KANSP-J.) $ '''y'hG' oN1Go```` SNDR.4 E. SMITH. City Clerk/Treasurer LAND LEASE AGREEMENT This Agreement, made this 19`h 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. FAYETTEVILLE 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 known as Lot 19.1 E of the South Industnal Park, referred to hereinafter as the Industrial 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 a driveway to be built by and at the expense of Smith Communications, 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 dnveway at any time and to coordinate and cooperate with the CITY OF FAYETTEVILLE and any future tenant or owner of the remainder of the lot in their use and access to their facilities. 2. SURVEY. FAYETTEVILLE also hereby grants to SMITH COMMUNICATIONS, the right to survey the Industrial 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 Eight Hundred Fifty Dollars ($850.00) to be paid on the first day of the month, in advance, to FAYETTEVILLE. This rent may be reduced pursuant to paragraphs 26 or 27. 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 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 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 be 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. 2 7. INSURANCE SMITH COMMUNICATIONS 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 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, loss 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 3 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 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 stnct 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 4 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 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 tamer'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 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 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, 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 • 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 wnttng 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 Party's 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 COMMUNICATIONS'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 in consideration of 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 9-1-1 (Emergency Dispatch), the CITY OF FAYETTEVILLE, its operating departments or citizens. 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. 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 By Attest 9 CITY OF FAYETTEVILLE D • N COODY Mayor .0111 YTR ,�i eCTk;* .'c1Y . a E :FAYETTEVILLE: .tct.• '.9t r9,QkANSP'W` fffffff S ra E. Smith, City Clerk/Treasurer a$ r L !Yir •30q' sY��' Cis � *WS 64+M dk6: in t at fpr do, �i �f..fzdQ anrAt= #f.RL fast 7✓lslas f err R aloes mra xu +o r # rx�+. 019 MO sot isorazdslit ai.Y. fo* ilisd sdY�+lytbii:;4F,7(M.'.�[s-A�BTat.L4+�7ipdeR.. 'wFdieti it ra _.:aro th ,idNMp: aefh%A!, *Who at Coro& Oftsole sow Of. ffo -'41FrenricH4 ..30 athwart Affatint. -bli Stay IOW mar ar'ar. NarP4lfr ar epr $aatnsnt ffs CLtair'er tat 1A EytithrMN Re. o• are l'm'a �siadrt p"*reta :�""fPow N I!LV•W cern*I P/ISIW ws ee�r cneYNA[ I .POm r I1 •_w 6 SI/'nAIMY IWiiO]UR [ 9nA COMMPeelftnar MIStrin Ian/1 104400 4Salareeina tont Na[11Lg1[M011eflllt a EXHIBIT "B" PROPERTY OESORIPfON Pert I M Northwest Carter Of the Southwest Wafer. Section 26, TOena*i 16 NSM. Range 30 West Ks gbseingfon Counts Arkansas Deng more particularly deeded es /ogoet Commencing at an *Wilkes monemnl morale' Me Northwest Caner of Me Northwest Wrfr of IM Northwest Wrlr. Thence d q the net Me el the Northwest Quarter. 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Thence South 02 degrees 50 mnatn 13 seconds West 7500 Int la a 1/2 inch eel fiber 1 op. Thence North 88 degrees 33 minutes 44 snoods Went 75.00 Net to the Pent of Br9Mig, containing 5.62132 *aro'* Int and subject to any Easements of Read. lornIo4s47 ant lea is 10.61.1(/WR Also a 3000 bol Road and Uffity Casement bang 1100 feel each side of a centerline and berg more paliculrly delyded n Worm Commencing al an earisfnq monument mMng the Northwest Corner of the Northwest Gealr of the Northwest Owalr. Thence rang the west Ike al the Norlhwnl Curley South 02 darns 50 mnufn 13 seconds Sof, 2641.94 feel to 0 1/2 nM misting mbar matin Me Northwest Comer of the Northwest O/rfer of the Southwest Quarter. also being IM Northeast Caner el Lot 19. Foyeffete* Industrial Pak. Thence along Me norM Me of said /arty one dog Me north Me of Lot 19. Swill 87 degrees 19 mauler 37 seconds E , 87220 In pont Mang IM Northeast Caner of Lol 19. Pontine@ nabslriSl Pork. Thence dog east I L 9. South 02 degrees 04 minutes 03 seconds 11Y51, 98686 leer fo e pent madcap len Southeast Caner of Lol lR Fayrten(e Industrial Pak. thorn South 87 degrees 16 minutes 26 seconds East 261.50 Ant Mese MSM 02 degrees 50 minutes 13 seconds Ent, 60.18 Int fa o 1/2 inch eel robs with op Thance Swan 88 degren 33 minutes 44 seconds fast 7100 Int to a 1/2 not of robs I cap. Thence North 02Be pd1e�grnees 50 minutes 13 seconds E t 37.50 feel to the Paint of 1f in Thaw Nath 8mantles2 degrees 35 mantles 11 seconds Lost 101. J Net Mem North 02 dprns 46 minutes 34 nods East 44.31 Int. Thane South 87 degrees 43 maul*" 39 seconds Ent RIS Teel to fns centerline of o 1000 bel gran( ood Thence dog fn ter(' of sop gron( road ren fallowing bwins and distance North 50 degrees 58 minutes 26 second' East 37.68 Mf. Nath 43 dans 03 miwtn 24 seconds Enl, 11.56 Net NSM 59 degrees 26 mnaln 32 secants Ent. 19.18 feet. North 70 *trees58 mimeos13 seconds EaC 2889 Int. Naminutes 61 degrees 26 inulin 03 seconds East 2.30 Int to the West Mehl of *by And of Moak Ook Road and The Point of 1pmneuan. Alen a 1500 for UWN'Iy Easement being 750 Int each spa of o centrale and bens more nIkJNly described as follows CammnMg al an .NM" monument making the Northwest Corner of the Northwest Quarter of the Northwest Owner. Thence along Me net Me of the NarMenf *otter. South 02 degrees 50 minutes 13 seconds West, 2641.94 Net to o 1/2 inch existing fobs skin the Northwest Comer al the NorMwnf Oiler of Me Southwest WSW, also berg the NwMwesf Corner el Lot 19. Poplin.* ndrstdd Pak Thence along the oath Me of sold forty and the 87north fee of del Ig. South 87 degrees l9 mMwln 37 seconds Ent .20 Int to a pent marking the Northeast Caner of Lot 19, Fo fresh* nastrio' Park. thence Wang 1 eat M of L 1 19 South 02 degrees 04 minutes 03 seconds West. 98686 Net to a pont making the Southeast Caner of Lol 172 Footle*, Industrial Pork. Thence South 87 degree 16 minutes 26 seconds fast. 261.50 Int Thanes North 02 degrees 50 minutes 13 hands Ent. 74.49 Int to the PMI of Beginning. Thence South 34 ggreen 26 miwtee 32 hands West. 7691 Int to a Power Pale and The PMI of Termnalksn. Also c 3000 bol Rood and Uli'fy Easement PON 1500 Net each akin of o centerline and brag mon pcelkulefy Wuted es Bros Canneeekg al an .bene monument marking Me Northwest Corner of The Norlhwesf *aster of the No./Mont Thaler. Thence Wang th w f IM I e • Northwest Curter. South 02 degrees 50 mnvles 13 seconds West 2.641.94 feet to a 1/2 inch easing robs mMWg Me Northwest Corner of tide Northwest Ouster of IN Southwest LLrfr. also b ny NstNnf Corn o/ Lol IR FOLer*aa. IndustrialPM. Mrce tlonp f line I so* forty and the wile Me of Lel I9, Soule 67 degrees ID minutes 37 ansa East. 872.20 hof to o pant marking the Northeast Cane. of Lot 1a Fayetteere ndustrid PM. Thrice along the east Me el Lot IR South 02 degrees 04 Inky IP 03 hands Nast 96386 feel to 0 point moaning Ino Southeast Corner of Lol 19. FotefleWe MdsIrM Pork Thence South 87 degrees 16 minutes 26 ncands East. 261.50 Int. Thence North 02 Ogees 50 minutes 13 seconds East 6018 feel fe a I/2 (nth f *or cera Thence South 88 Sdqpees 33 NSIPS!! minutes 44 seconds East .1250 feet to the Pent of 8egkmin /NUT Thence South O2 degrees 43 navies 34 seconds Yet 61.02 Nil to N 1___ Me Pent of Termination.--�nd- 5 aid Ea.F ®lee MCI wia NaOSSIS' Nome[ 1 oPelf r.` n!l• � J"/ me/Xan A09D /n.!/7 nine 750 Agana 1100 .886X300.8 Eisen g13 &t-MwuenL w..em/nSan., . sea San., uv -/ma Iveco 15W7V7V� sCON* /r /s I Bean// ; /ewTalait nor fel JAMEY Nie Au senscr Mawcz i'. 9 1e Y �5JNN01 uAmnlSawr C[. Oa isiorioN _w /4.)Y RIA 4A e. co /SC 1 1 1 1 !p i i 1 Ray M. Boudreaux Submitted By City of Fayetteville Staff Review Form City Council Agenda Items i Sorvi mrtnnocAans, or Contracts "ES 6/5/2007 City Council Meeting Date Aviation & Economic Development General Government Division Action Required: Department Action Required: Approve a lease with Smith Two-way Radio for a 75X75 parcel and access road easement. 1# REVENUE 6,000.00 Cost of this request Account Number Project Number Program Category / Project Name Funds Used to Date Program / Project Category Name Remaining Balance Fund Name Budgeted Item L J Budget Adjustment Attached Department Director City Atto Previous Ordinance or Resolution # _5 yb b� ate • Original Contract Date: 5/2z(7 Date �QaJl 5.22467 Finance and Internal Service Director Date Mayor Comments: ZZ� Date Original Contract Number: City Council Meeting of: June 5, 2007 Agenda Item Number: CITY COUNCIL AGENDA MEMO/STAFF CONTRACT REVIEW MEMO TO: Mayor and members of the City Council THRU: Staff7Contract Review Committee FROM: Ray M. Boudreaux, Director, Aviation and Econ...'c Development DATE: May 16, 2007 SUBJECT: Approve lease of lot in the South Industria Park to Smith 2 Way for a Cell Tower RECOMMENDATION: Approve lease of lot 75' X 75' (5625SF) and access road easement to Smith 2 Way for a Cell Tower as depicted on the attached drawing. Smith 2 Way will install a 150 foot tower which is well below any airport approaches and is fully in the industrial park. DISCUSSION: Smith 2 Way Radio has applied to lease the lot in the industrial park to build a cell tower to serve the cell customers in the south industrial park area. The location is their preferred location and does not adversely affect the lot on which they have asked to lease. The 75' X 75' lot is located at the far end of Lot 19.1E across Armstrong and West of the Arkansas Western Gas Company location. BUDGET IMPACT: The lease rate is $1,000.00 per month beginning the first of the month following the month in which the permit is issued by the City of Fayetteville. This lease rate is for the initial company to utilize the tower. The second user will pay 25% of their payment for the use of the tower as additional rent to the City of Fayetteville. The third and subsequent users will pay 50% of their payment for the use of the tower as additional rent to the City of Fayetteville. The revenue realized by this agreement will be deposited in the General Fund for Economic Development purposes. Attachments: Lease provided by City Attorney Staff Review Form Aviation and Economic Development Department Fayetteville Municipal Airport, Drake Field 4500 South School Avenue, Suite F Fayetteville, Arkansas 72701 Ray M. Boudreaux, Director RESOLUTION NO. A RESOLUTION TO APPROVE A LEASE WITH SMITH COMMUNICATIONS FOR A CELL TOWER SITE IN THE SOUTH INDUSTRIAL SITE FOR AN INITIAL RENTAL OF $850.00 MONTHLY WITH 50/50 REVENUE SHARING OF ALL CELL PHONE ANTENNA REVENUE AFTER THE INITIAL SUBLESSEE WHEREAS, Smith Communications desires to lease a portion of Lot 19.1 E of the South Industrial Park to construct a 150 foot cell tower; and WHEREAS, the City has entered into a lease with similar terms for the Old Wire Road Fire Station site; and WHEREAS, if Emergency Dispatch (9-1-1), the City of Fayetteville or its operating departments need to place governmental antennas upon the cell tower, Smith Communications shall provide access for city antennas on this tower for no rent or other charges. NOW, THEREFORE, 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 the Land Lease Agreement with Smith Communications to lease a portion of Lot 19.1 E of the South Industrial Park pursuant to the terms of the attached contract conditional upon Smith Communications receiving a conditional use from the City and any and all other necessary governmental approvals. PASSED and APPROVED this 19°i day of June, 2007. APPROVED: ATTEST: By: By: DAN COODY, Mayor SONDRA E. SMITH, City Clerk/Treasurer • • 1 0 1 a 700 1 1 1,400 1 1 1 2.800 Feet 1 (6.20.07) Clarice Pearman - Smith Communications Page 1 From: Clarice Pearman To: Boudreaux, Ray Date: 6.20.07 10:00 AM Subject: Smith Communications Ray, The Council approved your agenda item but I can't finish processing. The lease has Exhibits A and 8 and both are not attached. Please let when to expect Exhibit A description and Exhibit B survey. Have a good day. Thanks Clarice Clarice Buffalohead-Pearman, C.A.M.C., C.M.C. City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 coea rmaneci.favetteville.ar. us