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Home My WebLink About11-10 RESOLUTIONRESOLUTION NO. 11-10 A RESOLUTION APPROVING THE FIRST AMENDMENT TO THE LEASE AGREEMENT BETWEEN THE CITY AND FAYETTEVILLE MSA PARTNERSHIP D/B/A VERIZON WIRELESS (FORMERLY ALLTEL COMMUNICATIONS) FOR TRANSMISSION TOWER SPACE ON THE GULLEY WATER TANK 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 First Amendment to the lease agreement between the City and Fayetteville MSA Partnership d/b/a Verizon Wireless (formerly Alltel Communications) for tower space on the Gulley Water Tank. A copy of First Amendment to the agreement is attached to this Resolution as Exhibit "A" and incorporated herein as if set out word for word. PASSED and APPROVED this 19th day of January, 2010. APPROVED: ATTEST: RA E. SMITH, City Clerk/TS Nrer .r``�RYJTR"�'y. sts, .60111 O,c.•. G 'U• • '� 'c :FAYETTEVILLE: •9 Owner Site Name/ Location: Gulley Road Water Tank Tenant Site Name: Mall West Beta Offload 3265 Gulley Road. Fayetteville, AR 72703 FIRST AMENDMENT TO WATER TOWER ATTACHMENT COMMUNICATIONS SITE AGREEMENT This First Amendment to Water Tower Attac en Communications Site Agreement ("Amendment") is made and entered into this i'nday of Rf1U/>;V(J 2001 , by and between City of Fayetteville ("Owner") and Fayetteville MSA Limited Partnership d/b/ erizon Wireless ("Tenant"). WHEREAS, Owner and Tenant previously entered into a Water Tower Attachment Communications Site Agreement dated the 20th day of October, 1999 whereby Owner agreed to lease to Tenant space on Owner's water tower and a certain parcel of land for the installation of a structure to house Tenant's equipment on a site owned by Owner ("Agreement"); and WHEREAS, Owner and Tenant desire to amend and modify the Agreement as provided for in this Amendment. NOW THEREFORE, for good and valuable consideration the sufficiency of which is acknowledged by both parties Owner and Tenant do hereby agree as follows: 1. Renewal Term. Tenant shall have the right to extend this Agreement for two (2) additional terms of five (5) years each on the same terms and conditions as set forth in the Agreement with the first of such Renewal Terms ("First Renewal Term") commencing on the 20th day of October, 2009 ("Renewal Commencement Date"). Unless Tenant notifies Owner of its election not to exercise any renewal term at least 30 days prior to the expiration of the then current renewal term, each renewal term shall automatically be exercised without notice or other action of any kind by Tenant. 2. Rent. Beginning on the First Renewal Term, Tenant shall pay Owner the sum of $1,440.00 per month as rental. Rent shall be payable on the first day of each month in advance at Owner's address or as otherwise specified in the Agreement. In the event that Tenant elects to renew this Agreement beyond the First Renewal Term, Rent shall increase at the inception of each Renewal Term by twenty percent (20%). 3. Assignment. Section 19 is hereby deleted in its entirety and replaced and superseded with the following: This Agreement may be sold, assigned or transferred by the Tenant without any approval or consent of the Owner to the Tenant's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of Tenant'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 the Owner, which such consent will not be unreasonably withheld, delayed or conditioned. No change of stock ownership, 1 EXHIBIT 4 9 • Owner Site Name/ Location: Gulley Road Water Tank Tenant Site Name: Mall West Beta Offload 3265 Gulley Road. Fayetteville, AR 72703 partnership interest or control of Tenant or transfer upon partnership or corporate dissolution of Tenant shall constitute an assignment hereunder. 4. Notices. Tenant's address as set forth in Section 16, Notices, shall be replaced and superseded with the following: If to Tenant, to: Fayetteville MSA Limited Partnership d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate 5. All remaining provisions of the Agreement shall remain in full force and effect as to all other terms and conditions, and shall remain binding on the parties hereto. 6. The Agreement and First Amendment contain all agreements, promises or understandings between Owner and Tenant and no verbal or oral agreements, promises or understandings shall be binding upon either the Owner or Tenant in any dispute, controversy or proceeding at law, and any addition, variation or modification to the Agreement and First Amendment shall be void and ineffective unless made in writing and signed by the parties. In the event any provision of the Agreement and First Amendment is found to be invalid or unenforceable, such a finding shall not affect the validity and enforceability of the remaining provisions of the Agreement and First Amendment. (SIGNATURES TO FOLLOW) 2 Owner Site Name/ Location: Gulley Road Water Tank Tenant Site Name: Mall West Beta Offload 3265 Gulley Road. Fayetteville, AR 72703 IN WITNESS WHEREOF, Owner and Tenant have executed this First Amendment as of the date first written above. OWNER: CITY OF FAYE ' EVILLE i By: yr Mayor TENANT: FAYETTEVILLE MSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELES By: Alltel Cor nica o,'s, LLC Its General a "ner By: H ns . Leutenegger Area Vice President Network • 3 Owner Name/ Location: Gully Road Water Tank Tenant Site Name: Mall West Beta Offload 3265 Gulley Road, Fayetteville, Arkansas Upon Recording, Return to: Pennington Law Firm, L.L.P. Post Office Box 2844 Columbia, South Carolina 29202 STATE OF ARKANSAS 1 1 COUNTY OF WASHINGTON MEMORANDUM OF WATER TOWER ATTACHMENT COMMUNICATIONS SITE AGREEMENT Agreement is made this Rill day of This Memorandum of Water T nk Attachment ommunicatlons Site 20 between CITY OF FAYETTEVILLE, hereinafter referred to as "O ER", and FAYETTEVILLE MSA LIMITED PARTNERSHIP, a Arkansas limited partnership d/b/a Verizon Wireless, with its principal office located at One Verizon Way, Mail Stop 4AW 100, Basking Ridge, New Jersey 07920, hereinafter referred to as "TENANT". OWNER and TENANT are at times collectively referred to hereinafter as the "Parties" or individually as the "Party" 1. OWNER and TENANT entered into a Water Tower Attachment Communications Site Agreement (the "Lease") October 20, 1999 for an initial term of five (5) years, terminating on October 19, 2004. The Lease was extended for one (1) successive five (5) year renewal option, expiring on October 19, 2009. 2. OWNER and TENANT entered into a First Amendment to Water Tower Attachment Communications Site Agreement on the _ day of 2009. Pursuant to the First Amendment, commencing October 20, 2009, the Lease shall be automatically extended for two (2) additional five (5) year 1 Owner Name/ Location: Gully Road Water Tank Tenant Site Name: Mall West Beta Offload 3265 Gulley Road, Fayetteville, Arkansas 1 renewal terms, unless the TENANT elects not to renew at the end of the then current term by giving the OWNER written notice of the same thirty (30) days prior to the end of the then current term. 3. Subject to the terms and conditions of the Lease, OWNER grants to TENANT the nonexclusive right to install, maintain, operate and remove radio communications equipment and appurtenances on OWNER's tower (the "Water Tower") located on the property described in Exhibit "A" (the "Premises"), and leases to TENANT a portion of the Premises for construction and occupancy of an equipment shelter or building to house TENANT's equipment on the Premises as more particularly described in Exhibit" A". OWNER shall continue to have the right to occupy the Premises and operate the Water Tower and to grant others rights to occupy or utilize the Premises and the Water Tower at OWNER's sole discretion. OWNER also grants to TENANT a nonexclusive easement during the term of this Agreement for ingress, egress and regress and for the installation and transmission of utilities on property described on attached Exhibit ("Easement"). 4. The terms, covenants and provisions of the Lease, the terms of which are hereby incorporated by reference into this Memorandum, shall extend to and be binding upon the respective executors, administrators, heirs, successors and assigns of OWNER and TENANT. [SIGNATURES TO FOLLOW] 2 Owner Name/ Location: Gully Road Water Tank Tenant Site Name: Mall West Beta Offload 3265 Gulley Road, Fayetteville, Arkansas IN WITNESS WHEREOF, hereunto and to a duplicate hereof, OWNER and TENANT have caused this Memorandum to be duly executed on the date first written hereinabove. OWNER: CITY OF FAYETTEVILLE By ✓ ,h€29 4/— Mayor TENANT: FAYETTEVILLE MSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS By: Alltel Communicatio s, LLC Its General Partner By: Hans .Leu enegger Area Vice President Network Owner Name/ Location: Gully Road Water Tank 3265 Gulley Road, Fayetteville, Arkansas STATE OF ARKANSAS Tenant Site Name: Mall West Beta Offload 1 ACKNOWLEDGEMENT COUNTY OF WASHINGTON 1 _,A la J►1 Notary Public for said State, do hereby certify that U Ca Qf personally came before me this day and acknowledged that s/he is the Mayor of the City of Fayetteville, and he, being authorized to do so, executed the foregoing Memorandum of Water Tower Attachment Communications Site Agreement as his own act and deed on behalf of the City of Fayf;tteville. 0 WITNESS my hand and official Notarial Seal, this 208' My Commission Expires: a- c2016_ 4 ay of 1bli� �.rnn Notary Public tS.•.01/44.._••••••0A1 401234662.Xtp 04 .a_ �.° ? • .0 b•�- $g• or ik ti 4947 isi i %% i %%%% Owner Name/ Location: Gully Road Water Tank Tenant Site Name: Mall West Beta Offload 3265 Gulley Road, Fayetteville, Arkansas STATE OF NORTH CAROLINA 1 COUNTY OF MECKLENBURG ACKNOWLEDGMENT 1, Jean M. Musa , a Notary Public for said State, do hereby certify that Hans F. Leutenegger personally came before me this day and acknowledged that he is the Area Vice President Network of Alltel Communications, LLC general partner of Fayetteville MSA Limited Partnership d/b/a Verizon Wireless, and that he, being authorized to do so, executed the foregoing Memorandum of Water Tower Attachment Communications Site Agreement on behalf of the Company.n WITNESS my hand and official Notarial Seal, this beat/ day (Oi_I � 2009. My Commission Expires: 5 JEAN M. MUSA Notary Public, North Carolina Mecklenburg County My Commission Expires May 18, 2010 5 COUNTY ROAD NO. 345 • P \ 4 +:+¢°!.} ruini !t*�� i¢ E 't 114 f if fl of lif rile Oil' ag .i t g !at ia .4e Ft. It' I; T X x W co trfit itSItL a L Lg G jt1+e11E4 1111 'i( i • ,Lr l 4 111 7 trt h Pi: 1qi=ig °°fiefl:l1i)'li,f1_L• ii- • 1 1: r r1/1111 ii��i gIt'Iit �fEi [i 1/1 14 ; f{ ttr i jg Tom Hubbard Submitted By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements —)9`aof4 City Council Meeting Date Agenda Items Only Capital Projects Division Action Required: Utilities Department Approval of the First Amendment to the agreement between City of Fayetteville and Alltel Communications, Inc for lease of tower space on the Gulley Tank for continued maintenance of radio communications equipment and appurtenances (building and antenna) for $1,440 per month. (17,280) Cost of this request 5400.0940.6450.00 Account Number Project Number Budgeted Item XX Category / Project Budget Rent Program Category / Project Name Water and Wastewater Funds Used to Date Program / Project Category Name Water/Sewer Remaining Balance Fund Name Budget Adjustment Attached De art •-nt r 'rector Cit)( .rney tall Q. F.Ln.J`ti Finance and Internal Services Director 1) 30 07 Date /2-30-0, Date 1 -1-2a9 Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: 121-99 9/21/1999 N/A Received in Mayor's Office Off ED 3/�, waif Revised January 15, 2009 a�lve'leville CONTRACT REVIEW MEMO MAYOR APPROVAL THE CITY OF FAYETTEVILLE, ARKANSAS ARKANSAS www.accessfayetteville.org To: Mayor Lioneld Jordan CjThru: David Jurgens, Utilities Director Don Marr, Chief of Staff From: Tom Hubbard, Capital Projects Team i Date: December 29, 2009 Subject: Approval of the First Amendment to the agreement with Alltel Communications, Inc to continue the lease for the cellular antenna on the Gulley Road water tower RECOMMENDATION Staff recommends approval of First Amendment to the agreement with Alltel Communications,• Inc to continue the lease for the cellular antenna on the Gulley Road water tower. BACKGROUND The original 5 -year agreement between the City of Fayetteville and Alltel, for installation of an antenna, building and associated hardware, began on 21 September 1999 at a monthly rental rate of $1,000. The agreement allowed for two 5 -year renewal terms, the first of which began in September 2004 at a monthly rental rate of $1,200. The antenna has been inspected and adjustments to the cables and aviation lights have been remedied. To date the City has received $132,000 in lease payments. DISCUSSION This Amendment involves permitting the second 5 -year extension at a monthly rental rate of $1,440, as agreed upon in the original agreement. It also allows for two more renewal terms of five years each. Rent will increase at the inception of each Renewal Term by twenty percent (20%). Alltel Communications will continue to maintain its antennae, transmission lines, and equipment in good operating condition. Any damage caused by Alltel Communications in the installation or maintenance of equipment will be Alltel's responsibility to repair. Alltel Communications has made all rent payments in a timely manner and has maintained its equipment and repaired any and all damage caused to the Gulley Tank. The tower is structurally designed to be able to handle the loads created by this antenna. Therefore, it is in the City's best interests to allow this antenna to be installed upon the water tower. BUDGET IMPACT An annual rental income to the Water and Sewer fund of $17,280. Gulley Tank cell agreement CC Memo 12-7-2009.doc RESOLUTION NO. A RESOLUTION APPROVING THE FIRST AMENDMENT TO THE LEASE AGREEMENT BETWEEN THE CITY AND FAYETTEVILLE MSA PARTNERSHIP D/B/A VERIZON WIRELESS (FORMERLY ALLTEL COMMUNICATIONS) FOR TRANSMISSION TOWER SPACE ON THE GULLEY WATER TANK 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 First Amendment to the lease agreement between the City and Fayetteville MSA Partnership d/b/a Verizon Wireless (formerly Alltel Communications) for tower space on the Gulley Water Tank. A copy of First Amendment to the agreement is attached to this Resolution as Exhibit "A" and incorporated herein as if set out word for word. PASSED and APPROVED this 19th day of January, 2010. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer PENNINGTON LAW FIRM, L.L.P. ATTORNEYS & COUNSELORS AT LAW ALLISON HUGHES PARALEGAL ALLISONHUGHES@PENNLAW FIRM.COM December 29, 2009 VIA OVERNIGHT EXPRESS Mr. Tom Hubbard City of Fayetteville 113 West Mountain Fayetteville, Arkansas 72701 1501 MAIN STREET, SUITE 600 (29201) POST OFFICE SOS 2844 COLUMBIA, SOUTH CAROLINA 29202 TELEPHONE 803.929.1070 TELECOPIER 803-929-1075 WWW. PENNLAW FIRM.COM RE: FIRST AMENDMENT TO WATER TOWER ATTACHMENT COMMUNICATIONS SITE AGREEMENT BETWEEN CITY OF FAYETTEVILLE AND FAYETTEVILLE MSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS (MALL WEST BETA OFFLOAD SITE/ PC LAW NO. 1955-126) Dear Tom, Enclosed please find three (3) partially executed original First Amendments to Water Tower Attachment Communications Site Agreement and three (3) partially executed original Memoranda of Water Tower Attachment Communications Site Agreement for the above referenced site. Please have these documents executed and return one (1) fully executed original First Amendment and two (2) fully executed original Memoranda of Water Tower Attachment Communications Site Agreement to me at your earliest convenience. If you have any questions or comments, or if you need additional information, please do not hesitate to contact me. Enclosures Sincerely, PENNINGTON LAW FIRM L.L.P. Allison C. Hughes