Loading...
HomeMy WebLinkAbout42-07 RESOLUTIONRESOLUTION NO. 42-07 A RESOLUTION TO APPROVE A LEASE WITH CALLAHAN TOWER JOINT VENTURE TO LEASE SPACE NEAR THE OLD WIRE ROAD FIRE STATION #5 FOR $1,000.00 PER MONTH, FREE USE OF THE CELL TOWER FOR FIRE DEPARTMENT ANTENNAS AND REVENUE SHARING FOR THE SUBSEQUENT CELL PHONE CUSTOMERS WHEREAS, the City of Fayetteville Fire Department needs a tower to install two antennas at its new Old Wire Road site; and WHEREAS, the UDC encourages cell tower builders to build on city sites and to co - locate on existing cell towers. 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 (attached as Exhibit A) with Callahan Tower Joint Venture for an initial lease of $1,000.00 per month, plus free installation of two Fire Department antennas with revenue sharing for the second and later cell phone company customers who wish to install their cell phone antenna arrays on this cell tower. %WM? ffff ............. 14Z),°{1b1 °t ..5% • (IN .0 6-- • E. F AY ETT EV I LLE tee ,e St el' 14) C nti d1/27 • ./(A N • ,,N) ........... T00% By By: CAT-egc-40 .... PASSED and APPROVED this 6th day of March, 2007. APPROVED: ATTEST: () L SO ERA E. SMITH, City Cleric/Treasurer DAN COODY, Mayor • • • • LAND LEASE AGREEMENT This Agreement, made this day of 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 Old Wire Road Fire Station 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 Fire Department in their use and access to their facilities. 2. SURVEY. FAYETTEVILLE also hereby grants to CALLAHAN the right to survey the Old Wire Road Fire Station 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 May 1, 2007, 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 FAYE'TTEVILLE 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. CALLAHAN shall use the Premises for the purpose of constructing, maintaining, repairing and operating a communications facility 1 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 interruption or loss of use of service, whether under theory of contract, tort (including negligence), strict liability or otherwise. 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 and eliminate the interference, including but not limited to, at CALLAHAN's option, 2 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. QUIET 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 . r . 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 FAYET"TEVILLE 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 whethe? 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 fire or other casualty in proportion to the degree to which CALLAHAN'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, CALLAHAN, in CALLAHAN's sole discretion, is unable to use the Premises for the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt CALLAHAN's operations at the Premises for more than forty-five (45) days, CALLAHAN may, at CALLAHAN's option, to be exercised in writing within fifteen (15) days after FAYETTEVILLE shall have given CALLAHAN 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. CALLAHAN 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,. CALLAHAN 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, CALLAHAN 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. CALLAHAN shall, in respect to the condition of the Premises and at CALLAHAN's sole cost and expense, comply with (a) all Laws relating solely to CALLAHAN'S 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 CALLAHAN 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. 7 '61 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 CALLAHAN, CALLAHAN agrees to provide FAYETTEVILLE and its Fire Department 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 the Fayetteville Fire Department. FAYETTEVILLE agrees to cooperate with CALLAHAN in the placement of its antennas to attempt to avoid interfering with CALLAHAN'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. CALLAHAN TOWER JOINT VENTURE A/14,•••--- ASON STEELE President By: By /0. MICHAEL SMITH, €4€0- Vie -e- rn& Attest: SA Attes 8 CITY OF FAYETTEVILLE DAN COODY Mayor Sondra Smith, City Clerk 01;171741 ,,,, .9% ,e7f4;k..0-cYCY 0;J. e•St • <cc; ..t• E: : FAYETTEVILLE.: :4 te• <PVT -OA cP" AGENDA REQUEST FORM FOR: COUNCIL MEETING OF MARCH 6,2007 31 6 1°1 &I /a IVA rrovor Joni* Vorri a rd.. FROM: KIT WILLIAMS, City Attorney ORDINANCE OR RESOLUTION TITLE AND SUBJECT: A Resolution To Approve A Lease With Callahan Joint Venture To Lease Space Near The Old Wire Road Fire Station #5 For $1,000.00 Per Month, Free Use Of The Cell Tower For Fire Department Antennas And Revenue Sharing For The Subsequent Cell Phone Customers APPROVED FOR AGENDA: Fire Chief Date \a A Director 1 2.1 f Operations Date Z -(37 CitirtIZITney Date -441, Date RESOLUTION NO. A RESOLUTION TO APPROVE A LEASE WITH CALLAHAN TOWER JOINT VENTURE TO LEASE SPACE NEAR THE OLD WIRE ROAD FIRE STATION #5 FOR $1,000.00 PER MONTH, FREE USE OF THE CELL TOWER FOR FIRE DEPARTMENT ANTENNAS AND REVENUE SHARING FOR THE SUBSEQUENT CELL PHONE CUSTOMERS WHEREAS, the City of Fayetteville Fire Department needs a tower to install two antennas at its new Old Wire Road site; and WHEREAS, the UDC encourages cell tower builders to build on city sites and to co -locate on existing cell towers. 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 (attached as Exhibit A) with Callahan Tower Joint Venture for an initial lease of $1,000.00 per month, plus free installation of two Fire Department antennas with revenue sharing for the second and later cell phone company customers who wish to install their cell phone antenna arrays on this cell tower. PASSED and APPROVED this 6th day of March, 2007. APPROVED: ATTEST: By: By: DAN COODY, Mayor SONDRA SMITH, City Clerk/Treasurer City of Fayetteville Fire Department 303 W. Center St. Fayetteville, AR. 72701 Phone (479) 575-8365 Fax (479) 575-0471 MEMORANDUM To: Fayetteville City Council Thru: Kit Williams, City Attorney From: Tony Johnson, Fire Date: February February 14, 2007 Copy: Mayor Coody I am writing this letter in support of the cellular phone tower that is proposed by Callahan Tower Joint Venture (CTJV) which will be located south of the new fire station #5 that is currently under construction at Crossover and Old Wire Roads. Over the past several weeks, I have worked closely with City Attorney Kit Williams and CTJV on this proposal. I believe that this project is in the best interest of the City of Fayetteville, CTJV and the people of our community. All parties will benefit from the improved and enhanced communications that this tower will provide In addition, CTJV has agreed to provide adequate space on the proposed tower for the placement of communication and radio antennas for the fire department, thus eliminating the need for the fire department to erect an additional tower in the same proximity. Thanking you in advance for your consideration and approval of this joint venture. a • KIT WILLIAMS FAYETTEVILLE CITY ATTORNEY DAVID J. WHITAKER Assistant City Attorney . Judy Housley Office Manager Phone. (479) 575-8313 FAX . (479) 575-8315 Mr. Dave Reynolds . Mr. Jason Steele Callahan Joint Tower Ventiire 520 N. College Avenue Fayetteville, AR 72701 9 January 26, 2007 • 09 RE. Old Wire Road Fire Station Site %- Dear Jason & Dave: THE CITYOF FAYETTEVILLE, ARKANSAS 113 W. Mountaih, Suite 302 Fayetteville, AR 72701-6083 I have reworked the Land Lease Agreement pursuant to our agreement to lower the initial rent from $2,000.00 to $1,000.00 and the revenue sharing for the second tenant from 50% to 25% in consideration of the City's use of the Tower for a dish anterina and a whip antenna. If this Land LeaseAgreement is satisfactory, please sign it and return.it to the so I can submit it to the City Council. With kmdest regards, KIT WILLIAMS Fayetteville City Attorney KW/jh cc: Gary Dumas, Director of Operations Chief Tony Johnson Enclosure From: To: Date: Subject: Attachments: CC: Kit: Attached is a copy of original agreements. Thanks. Clarice Clarice Pearman Williams, Kit 3.13.07 4:05 PM Res. 42-07 42-07 Callahan Tower Joint Venture.pdf Audit the above resolution passed by City Council, March 6, 2007. I will forward to you three of four If anything else is needed please let me know. Clarice Buffalohead-Pearman, CMC City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 cpearman@d.fayetteville.ar.us 3.13.07 Clarice Pearman - Res. 42-07 Pagel From: To: Date: Subject: Attachments: CC: Kit: Attached is a copy of original agreements. Thanks. Clarice Clarice Pearman Williams, Kit 3.13.07 4:05 PM Res. 42-07 42-07 Callahan Tower Joint Venture.pdf Audit the above resolution passed by City Council, March 6, 2007. I will forward to you three of four If anything else is needed please let me know. Clarice Buffalohead-Pearman, CMC City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 cpearman@d.fayetteville.ar.us MEMORANDUM OF LEASE AGREEMENT This Indenture, made this lstth day of May, 2007, by and between City of Fayetteville, hereinafter called Lessor, Callahan Tower Joint Venture, an Arkansas company, hereinafter called Lessee. Lessor has agreed to let and hereby does let and demise to Lessee and Lessee has Agree to take and does hereby take from Lessor a portion of the following described real Property situated in the County of Washington, State of Arkansas, said real property being Described in Exhibit "B" attached hereto and made apart hereof, And hereinafter referred to as the "Leased Premise"; TO HAVE AND TO HOLD the same for a lease term of Thirty (30) years, Commencing on the Ist day of May, 2007, subject to the terms and Conditions more particularly set forth in a LEASE AGREEMENT executed by the Lessor And Lessee referred to herein, and bearing even date herewith for the purposes of Constructing, operating and maintaining a radio transmission facility and other activities Related thereto. IN WITNESS WHEREOF, the parties hereto have executed this Indenture the Day and year first hereinabove written. LESSEE: Callahan Tower Joint Venture 13 Michael B. Smith LESSEE: Callahan Tower Joint Ven By: State of Arkansas Jason R Steele County of Washington On this fit day of tfpg,,I.- 2007, before me a Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named Dan Coody being fully capable and under no duress, willingly did execute such instrument, stating his capacity 1 as Owner, to me personally well known, who stated that he was the and further stated and acknowledged that he had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this _Lea day of A -ph le. ,2007. , ,,Aniumwwm,,, C94--4-&- ifit-aczt-ta-2 e ''d'?-( 4 NOTARY PUBLIC *%. My Commission Expires: 1-1-1-6 7= co .4.-s, .:.• Nor,441):•,:-.s. = r .... • ... cn= -.: cp • tie. : 5. s..---. v.E., 2.... L. 1 c .• 2 c: -z:- ... ,c -....c..„, 4, b.... ''' .-.. 0A--• n .... t.,. ... ,..- -.410081niii;amikoo State of Arkansas ss County of WaShe'Vkli On this I ( day of Mont I 2007, before me a Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named Jason R Steele being fully capable and under no duress, willingly did execute such instrument, stating her capacity as Owner, to me personally well known, who stated that he was the and further stated and acknowledged that he had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. Irj TESTIMONY WHEREOF, I have hereunto set my hand and official seal this ( day of i 2007. NOTARY PUBLIC My Commission Expires: ffcQQ- 020[3 cf)47741ia_ State of Arkansas 1 DONNA S. SULLIVAN NOTARY PUBLIC -STATE OF ARKANSAS WASHINGTON COUNTY My Commission Expires 11-20-2013 L ss County of thcAirefon On this (1 day of 2007, before me a Notary Public duly commissioned, qualified and acting, within and for aid County and State, appeared in person the within named Michael_B Smith as Owner, to me personally well known, who stated that he was the and further stated and acknowledged that he had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. , IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 1 1 day of NO 11/4RY PUBLIC 2007. My Commission Expires: 11 -c20 -00 13/42a.,J DONNA S. SULLIVAN NOTARY PUBLIC -STATE OF ARKANSAS WASHINGTON COUNTY My Commission Expires 11-20-2013 2 f 1. - 0 a) 1 1 i CD (D •-•1 .-t- i 3 i .-^ a n E -A a) n) = Th- CO cri to Er Di 7 M M ID a; a) m 1:3cn —1 --, w I-, cr — . . l i `-< Er i m --4 Cri mr- 5 -2 -, cu CD in 0 0 (T R r--- C at) P 11) 0 no 0 a a r C -2 toN 5 g r I SI) u, 2 0 > w > cp r 0 m c 0 a (D m x %.< al co m a xi 1-0 riC2 : _ 0 m () E a al > r- ,_, i • g * 0 5 —i > , co 0 7) 0 a) a) TV6-W, LLC 4091 Viscount Ave. Memphis, TN 38118 April 7, 2009 City of Fayetteville c/o Fayetteville City Attorney 113 W. Mountain Fayetteville, AR 72701 uP/02- -07 4‘01 grild9 vefis..t— OtilizAtil eti 4*311-1V Re: Land Land Lease Agreement ("Lease") made as of April 6, 2007 between City of Fayetteville, AR and Callahan Joint Tower Venture with respect to that certain portion of real property located at Old Wire Road Fire Station, Washington County, Arkansas ("Leased Premises"), more particularly described in the Lease Dear Mr. Williams: TV6-W, LLC and Callahan Tower Joint Venture have entered into a transaction whereby TV6-W, LLC is purchasing substantially all of Callahan Tower Joint Venture's assets in the market including, but not limited to, the Lease and the personal property associated with the wireless communications tower located on the Leased Premises. As a condition of the purchase, TV6-W, LLC is requesting the City of Fayetteville to confirm and acknowledge that Callahan Tower Joint Venture is currently in full compliance with the Lease. By signing and returning this letter, the City of Fayetteville acknowledges and agrees that Callahan Tower Joint Venture is currently in full compliance with its Lease with the City of Fayetteville. Please have the City of Fayetteville execute below and return to Jay Lindy, Burch, Porter & Johnson, PLLC, 130 N. Court Ave., Memphis, TN 38103. If you have any questions, please do not hesitate to contact Jay Lindy at 901/524-5147. Acknowledged and Confirmed: City of Fayette ille, AR oneld Jor Attest: p.„4„, Son ra Smith, City Clerk ayor Sincerely, TV W, LLC William Orge , President iii fffffff et ftLt ffffffffffffffff etc> • • ..... • kSICe S.A. • • .0 Ote • • loS • (AS • • 1--/ ::: • _ : FAYETI EVILLE)... ti-tt • k. 9112.0 1:15.%%•). ÷);- .......... 9.0 ‘‘‘ W J. MICHAEL Corn pa PORTER CHARLES E NEWMAN C. THOMAS CATES JOE M. DUNCAN J. Bitooli LArtumm JEF FEIBELMAN DEWITT M. SHY, JR. Au.liN t MalioNli W. Rovarrr Scorr R. MICHAEL Parra Rains B. LAKE DAVID J. HARRIS SAM L. Clumps. NkmAN A. BICKS STEPHEN D. CRAWLEY LAUREL C. WILUMAS LISA A. KRUFICKA LEEANNE MARSHALL COX Bum WEEMS BRADLEY LES JONES MELISSA A. MAILWICH JAY FL LINDY Caosey TODD A. ROSE Doucus E FLu.gAN R. PORTER FEUD CHARLES S. Bunts Josrtua B. LAWHEAD JENNIFER S. HAGERMAN TAYLOR A. CATES MILTON L. LOVELL DAVID K GOODMAN,Pt. DEBRA &WILES FEDEX Kit Williams Fayetteville City Attorney 113 W. Mountain Fayetteville, AR 72701 LAW OFFICES BURCH, PORTER & JOHNSON A PROFESSIONAL LIMITED LIABILITY COMPANY 130 NORTH COURT AVENUE MEMPHIS, TENNESSEE 38103 TELEPHONE 901-524-5000 FAX 901-524-5024 (Writers Direct Dial 901/524-5147) Internet E-mail: 7Lindy@bpjlaw.com April 9, 2009 Re: TV6-W, LLC Land Lease Agreement with the City of Fayetteville, AR Dear Kit: ErucJ. PLUMIEY MARY HMI Monists JOHN R. MCCANN FRANK B.THACHER, 111 LEAH L Haus ANICA C. CONNER MARY C. HAMM PAULA P. DANIEL. EMILY T. BRACBSTONE DAVID E. MCKINNEY C. FARtus DEBOARD Luaus E. BURC14jR. 1912-1996 Joan S. PORTER 1909-1990 JESSE E. JOHNSON, JR. 1913-1980 Cam N. BURCH 1868-1938 Ii. D. MINOR 1868-1947 CLINTON H. McKay 1889-1943 PARIS OFFICE 107 Wur Bormli P.O. Box 130 Pants, TENNESSEE 38242 TELEPHONE 731-642-2555 FAx 731-642-1070 As a follow up to our telephone conversation last week, I am forwarding to you a short letter agreement from TV6-W, LLC asking the City of Fayetteville to acknowledge Callahan Tower Joint Venture's current compliance with its lease with the City of Fayetteville. Jason Steele and Michael Smith, d/b/a Callahan Tower Joint Venture, have entered into an agreement with TV6-W, LLC for the sale of substantially all of the assets of Callahan Tower Joint Venture consisting of seven (7) communication towers located in the northwest Arkansas area As a condition to the closing, Callahan needs to deliver estoppels of the landlords confirming to TV6- W, LLC that Callahan Tower Joint Venture is not in default under the Lease. As we discussed, T6 -W, LLC is agreeable in lieu of an estoppel from the City of Fayetteville to receive a statement from the City of Fayetteville that Callahan Tower Joint Venture is in full compliance with its leases with the City of Fayetteville. To this end, we have enclosed a letter agreement from TV6-W, LLC for execution by the Mayor and to be attested by the City Clerk. I have also enclosed a copy of TV6-W's registration to do business in Arkansas. TV6-W, LLC is the acquisition arm of TV6 Holdings LLC, a communications tower company which develops, acquires, and operates over 400 communication towers in over 20 states. TV6-W, LLC will be the owner of the 7 Callahan Towers and together with their other acquisitions will own and operate 31 towers by the close of the second quarter of this year. The principals of TV6 Holdings LLC have developed communication towers for the last 20 years and currently ranks as one of the larger privately held tower companies in the country. In addition, principals of TV6 Holdings LLC have other interests in northwest Arkansas. TV6 Holdings, LLC's lead investor is also a principal in the Ruth's Chris Restaurant in Rogers, Arkansas. U:Mindyi1WPDATMORGEL \TV6 Holdings LLCCallihankfayettevilleattorneylb-040709.doc