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HomeMy WebLinkAbout233-10 RESOLUTIONRESOLUTION NO. 233-10 A RESOLUTION TO APPROVE TWO TOWER SPACE AND GROUND LEASE AGREEMENTS WITH SMITH COMMUNICATIONS, LLC FOR A TOTAL ANNUAL RENT OF $36,000.00 WHEREAS, the Fayetteville Police Department needs additional tower space for new antennas to improve the range and coverage for its police and emergency services radio network; and WHEREAS, use of two of Smith Communications, LLC's radio towers is the most cost effective way to mount the needed antennas in the proper location and height. 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 two Tower Space and Ground Lease Agreements with Smith Communications, LLC (both are attached) for a total annual rent of $36,000.00 and authorizes Mayor Jordan to sign those leases. PASSED and APPROVED this 21st day of December, 2010. APPROVED: B ATTEST: 04,66Acti in SO D ' E. SMITH, City Clerk/Treasurer Chief Tabor Submitted By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements 12/21/2010 City Council Meeting Date Agenda items Only Police Division Action Required: Police Department Approve a resolution authorizing the Mayor to enter into two lease agreements with Smith Two Way Radio Communications LLC for the use of radio tower space at 3300 W. Dinsmore and 3450 N. Hemlock in the amount of $36,000. $36,000 Cost of this request 4470-9470-5309.00 Account Number 08076 Project Number Budgeted Item X $1,694,268 Category / Project Budget Simulcast Radio System Program Category / Project Name Funds Used to Date Program / Project Category Name 1,694,268.00 Various Remaining Balance Fund Name Budget Adjustment Attached \p Q PA a Finance and internal Services Director log_, Date Date I, C. Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: Received in City Clerk's Office 12-03-10P03:23 RCVD 1I Received in Mayor's Office Comments: Revised January 15, 2009 THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE ARKANSAS www.accessfayettevitle.arg CITY COUNCIL AGENDA MEMO To: Mayor Jordan and Members of the Fayetteville City Council Thru: Greg Tabor, Chief of Police - From: Kathleen Stocker, Dispatch Managed j Date: December 13, 2010 Subject: Radio Tower Site Lease Agreement (3300 W. Dinsmore and 3450 N. Hemlock) PROPOSAL: Approve a resolution authorizing the Mayor to enter into two lease agreement with Smith Two Way Radio Communications LLC for the use of radio tower space at 3300 W. Dinsmore and 3450 N. Hemlock. These two lease agreements shall be .for an initial term of Three (3) years, beginning upon installation of equipment or utilization of the site, and shall automatically be extended for FIVE (5) subsequent THREE (3) year terms unless City of Fayetteville terminates it pursuant to the provision set forth in the agreement. The annual cost of 3300 W. Dinsmore Lease is $18,000 with a 2% yearly annual increase. The annual cost of the site on Hemlock is $ 18,000 with a 2% yearly annual increase. RECOMMENDATION: Award three year lease agreement to Smith Two Way Radio Communications LLC with options to automatically extend the agreement through the life of this radio system. BUDGET IMPACT: Annual expense for the lease agreements will be included in the radio project budget for 2011 and then placed in the operating budget beginning in 2012. RESOLUTION NO. A RESOLUTION TO APPROVE TWO TOWER SPACE AND GROUND LEASE AGREEMENTS WITH SMITH COMMUNICATIONS, LLC FOR A TOTAL ANNUAL RENT OF $36,000.00 WHEREAS, the Fayetteville Police Department needs additional tower space for new antennas to improve the range and coverage for its police and emergency services radio network; and WHEREAS, use of two of Smith Communications, LLC's radio towers is the most cost effective way to mount the needed antennas in the proper location and height. 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 two Tower Space and Ground Lease Agreements with Smith Communications, LLC (both are attached) for a total annual rent of $36,000.00 and authorizes Mayor Jordan to sign those leases. PASSED and APPROVED this 21st day of December, 2010. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer TOWER SPACE AND GROUND LEASE AGREEMENT Smith Two -Way Radio, Inc. Tower and Wireless Communications Facility Located at: 3300 Dinsmore Trail Fayetteville Washington AR Between SMITH TWO-WAY RADIO, INC. and CITY OF FAYETTVILLE City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 1 of 12 TOWER SPACE AND GROUND LEASE AGREEMENT This TOWER SPACE Pd D GROUND LEASE AGREEMENT (the "Lease") is entered into on the1 st. day of VCQo u La 0Z0/ 0, and is effective . day of 2011, by and between City of Fayetteville, a municipality organized and existing under the laws of the State of Arkansas, (hereinafter referred to as " CITY OF FAYETTVILLE "), and SMITH COMMUNICATIONS, LLC, a limited liability company organized and existing under the laws of the State of Arkansas (hereinafter referred to as "SMITH"), wherein the following mutual covenants and understandings are made and entered into upon the following terms and conditions: WITNESSETH SECTION ONE DESCRIPTION OF PROPERTY SMITH hereby lets and leases unto City of Fayetteville, and City of Fayetteville accepts from SMITH, subject to the terms and conditions contained herein, a certain portion of the Fulbright Wireless Communications Facility located at 3450 N. Hemlock Avenue Fayetteville, Arkansas, (hereinafter referred to as the "Leased Premises") for the duration of this Agreement. The Leased Premises also includes a right for ingress and egress, seven days per week, twenty-four hours per day, on foot or motor vehicle, including trucks, along a twenty-five foot wide right-of-way together with the right to install, replace and maintain utility wires, poles, cables, conduits and pipes. The Leased Premises is generally depicted in the attached Exhibit "A". SECTION TWO TERM This Lease shall be for an initial term of Three(3) years, beginning on the date of City of Fayetteville's Installation of equipment at the facility, executing the agreement, incorporated herein in full by reference (the "Initial Term"). This Lease shall automatically be extended for FIVE (5) subsequent THREE(3) year terms (the "Renewal Terms") unless City of Fayetteville terminates it pursuant to the provision set forth herein. The Initial Term and any Renewal Term or Renewal Terms shall be collectively referred to as the "Lease Term". City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 2 of 12 SECTION THREE RENT City of Fayetteville shall pay to SMITH Ten and No/100 Dollars ($10.00) upon the full execution of this Lease and the Agreement. City of Fayetteville shall pay to the SMITH One Thousand Five Hundred and No/100 Dollars ($1,500.00) per month for a total of Eighteen Thousand and No/100 Dollars ($18,000.00) per year (the "Rent"). Lease payments shall consist of equal monthly installments with the first payment due at the commencement of the Initial Term with subsequent payments due on the first (0) day of each following month for the duration of the Lease. In addition, on each annual renewal date the amount of the Rent shall be increase by an amount equal to 2% and hence forward shall be the amount known as the Rent. SECTION FOUR USE OF LEASED PREMISES The City of Fayetteville shall use the Leased Premises and all easements, rights and privileges herein granted only for the purpose of constructing, installing, maintaining and operating the City of Fayetteville Radio Communication System and uses incidental thereto. Premise use per Exhibit "B" and attached survey when complete. It is understood and agreed that all improvements shall be undertaken at City of Fayetteville's sole expense. City of Fayetteville will maintain the Leased Premises in a reasonable, neat and safe condition. SMITH hereby does covenant that it shall not take any action that would adversely affect the status of the Leased Premises with respect to the proposed use by City of Fayetteville. SECTION FIVE City of Fayetteville's RIGHT OF TERMINATION City of Fayetteville shall have the unilateral right to terminate this Lease, at any time, by providing SMITH with One Hundred Eighty (180) days prior written notice in conformance with the Notice requirements outlined in the Lease. Upon termination of this Lease by City of Fayetteville, shall become null and void and all of the parties shall have no further obligations, except that Leased Premises property shall be reasonably restored to its condition prior to the Lease execution. If restoration period extends beyond the termination notice period SMITH shall be entitled regular monthly rent until restoration is complete. City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 3 of 12 SECTION SIX APPROVALS (a) SMITH agrees that City of Fayetteville's ability to use the Premises is contingent upon the suitability of the Premises for Tenant's Permitted Use and Tenant's ability to obtain and maintain all governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by City of Fayetteville for its use of the Premises, including without limitation applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively, the "Government Approvals"). SMITH authorizes City of Fayetteville to prepare, execute and file all required applications to obtain Government Approvals for Tenant's Permitted Use under this Agreement and agrees to reasonably assist Tenant with such applications and with obtaining and maintaining the Government Approvals. In addition, Tenant shall have the right to initiate the ordering and/or scheduling of necessary utilities. (b) Tenant may also perform and obtain, at City of Fayetteville's sole cost and expense, soil borings, percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the Property, necessary to determine if the City of Fayetteville's use of the Premises will be compatible with City of Fayetteville's engineering specifications, system, design, operations or Government Approvals. SECTION SEVEN CONTINGENCY SMITH and City of Fayetteville agree that City of Fayetteville's ability to use the Leased Premises is contingent upon City of Fayetteville obtaining, after the full execution of this Lease and the Agreement, all of the certificates, permits, licenses and other approvals deemed necessary by City of Fayetteville, within City of Fayetteville's absolute discretion, to utilize the Leased Premises for the purposes set forth in Section Six above (the "Approvals"). SMITH agrees to execute any and all documents necessary to petition the appropriate public bodies for the Approvals and to be named as applicant if requested by City of Fayetteville. In the event that: (1) City of Fayetteville does not obtain, for any reason whatsoever, all of the Approvals; (2) any of the Approvals are in a form unacceptable to City of Fayetteville, within City of Fayetteville's absolute discretion; (3) any Approval issued to City of Fayetteville is canceled, expires, lapses or is otherwise withdrawn or terminated by governmental authority; or, (4) any investigation, including but not limited to soil boring tests, are found to be unsatisfactory so that City of Fayetteville, in its absolute discretion, will be unable to use the Leased Premises for its intended purposes, then City of Fayetteville shall have the right, at its sole discretion, to terminate this Lease. SECTION EIGHT ENVIRONMENTAL City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 4 of 12 City of Fayetteville shall not cause or permit to be caused the use, storage, generation, escape, disposal or release of any Hazardous Substances or Hazardous Wastes in any manner not sanctioned by law. In all events, City of Fayetteville shall indemnify and hold SMITH harmless from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the presence or release of any Hazardous Substances or Hazardous Wastes on the Leased Premises if caused by City of Fayetteville. City of Fayetteville shall execute such affidavits, representations and the like from time to time as SMITH may reasonably request concerning City of Fayetteville's best knowledge and belief as to the presence of Hazardous Substances or Hazardous Wastes on the Leased Premises For purposes of this Lease, the term "Hazardous Substances" shall be as defined in the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., and any regulations promulgated pursuant thereto, and as used to define "Hazardous Wastes" in the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and any regulations promulgated thereto. SECTION NINE INSURANCE At all times during the Lease Term, City of Fayetteville, at its sole expense, shall obtain and keep in force insurance which may be required by any federal, state or local statute or ordinance of any governmental body having jurisdiction in connection with the operation of City of Fayetteville's business upon the Leased Premises. SECTION TEN SALE OF PROPERTY If at any time during the Lease Term SMITH decides to sell all or part of SMTTH's property, of which the Leased Premises is a part, to a purchaser other than City of Fayetteville, then such sale shall be under and subject to this Lease and City of Fayetteville's rights hereunder. Any sale by SMITH of the portion of the Leased Premises underlying the right-of-way herein granted shall be under and subject to the right of City of Fayetteville in and to said right-of-way. SECTION ELEVEN COVENANT OF TITLE SMITH covenants that SMITH is seized of good and sufficient title and interest to the Property of which the Leased Premises is a part and has full authority to enter into City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 5 of 12 and execute this Lease. SMITH further covenants that (1) there are no aspects of title that might interfere with or be adverse to City of Fayetteville's interests in and intended use of the Leased Premises and (2) title shall be such that City of Fayetteville will have the ability to obtain title insurance at regular rates. SECTION TWELVE DEFAULT In the event that there is a default by City of Fayetteville with respect to any of the provisions of this Lease or City of Fayetteville's obligations under the Lease, including the payment of Rent, SMITH shall give City of Fayetteville written notice of such default. After receipt of such written notice, City of Fayetteville shall have thirty (30) days in which to cure any monetary default and thirty (30) days in which to cure any non -monetary default. City of Fayetteville shall have such extended periods beyond the thirty days if the nature of the cure is such that it requires more than thirty (30) days and City of Fayetteville commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. SMITH may not maintain any action or effect any remedies for default against City of Fayetteville unless and until City of Fayetteville has failed to cure the same within the time periods provided in this Section. SECTION THIRTEEN MISCELLANEOUS A. The consent of either party to any act or the waiver by either party of a breach of any provision of this Lease shall not operate or be construed as a consent or waiver of any subsequent act or breach by the other party. B. Time shall be of the essence with respect to every term and condition of this Lease. C. This Lease may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall be deemed one instrument. SECTION FOURTEEN GOVERNING LAW Any and all claims or causes of action shall and must be filed only in the courts of the State of Arkansas for Washington County or the United States District Court for the Western District of Arkansas, which shall have exclusive jurisdiction over any and all disputes which arise between the parties under this Lease, whether in law or in equity. Each of the parties expressly agrees, consents, and stipulates that venue shall be exclusively within said courts. Each of the parties expressly agrees, consents and City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 6 of 12 stipulates to the exercise of personal jurisdiction over it and subject matter jurisdiction over any such controversy arising between the parties being only in the courts listed herein. The prevailing party shall be entitled to recover from the other party any reasonable costs and attorneys' fees incurred as a consequence of enforcing the provision of the lease, amount to be fixed by said court and shall be made part of the judgementor decree rendered. SECTION FIFTEEN NOTICES All notices hereunder shall be in writing and shall be given by (i) established express delivery service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested. Notices may also be given by facsimile transmission, provided that the notice is concurrently given by one of the above methods. Notices are effective upon receipt, or upon attempted delivery if delivery is refused or if delivery is impossible because of failure to provide reasonable means for accomplishing delivery. The notices shall be sent to the parties at the following addresses: To SMITH: SMITH TWO- WAY RADIO, INC Michael Smith 520 N. College Ave. Fayetteville, Arkansas 72701 To CITY OF FAYETTEVILLE OFFICE OF THE MAYOR 113 MOUNTAIN ST. FAYETTEVILLE, AR 72701 SECTION SIXTEEN City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 7 of 12 PARTIAL INVALIDITY In the event any one or more of the provisions contained in the Lease or Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remaining provisions of this Lease or the Agreement and this Lease or the Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein. SECTION SEVENTEEN THIS SECTION OMITED SECTION EIGHTEEN MERGER This Lease along with the Agreement contains the entire agreement between the parties and supersedes any prior or contemporaneous oral or written agreements which supplement or contradict the terms and provisions set forth herein. SECTION NINTEEN SITE MAINTENANCE SMITH shall be responsible for the routine maintenance of the site common and support areas. to include but not limited to: landscaping, mowing, weed control, signage, road access maintenance, painting, fence repair and damage caused by normal weathering and storm damage, as to the Smith Facility. City of Fayetteville shall be responsible for storm damage to its facilities and property. SIGNATURES APPEAR ON NEXT PAGE REST OF PAGE LEFT INTENTIONALLY BLANK City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 8 of 12 IN WITNESS WHEREOF, SMITH and City of Fayetteville having read the foregoing and intending to be legally bound hereby, have executed this Lease as of the day and year first written above. City of Fayetteville: Cl' Y OF FAYETTEVILLE By: a Printed 2, z N c Title: MAYOR SMITH: SMITH TWO-WAY RADIO, INC. By: Printed Title: PRESIDENT ACKNOWLEDGMENT STATE OF ARKANSAS ) ) ss. COUNTY OF WASHINGTON ) BE IT REMEMBERED that on this /1/ day of Dec a , 20 /D , came before me, the undersigned, a Notary Public, duly commissioned, qualified and acting, within and for the said County and State, Michael B Smith, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged that he had executed the same for the purposes therein set forth. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: /[- 020 -02D / 3 Notary Public )uNNA S. SULLIVAN 4 PUBLIC -STATE OFARKA' °''1SHINGTON COUNTY City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 9 of 12 STATE OF ARKANSAS ) ) ss. COUNTY OF WASHINGTON ) BE IT REMEMBERED that on this c90 qday of kteRi hLv , 2010, came before me, the undersigned, a Notary'ublic,"du commissioned, qualified and acting, within and for the said County and State, '2,IUILairaU4_ , known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged that he had executed the same for the purposes therein set forth. IN WITNESS WHEREOF, I hereuntset my hand and official seal. My Commission Expires: 0? -1-011! Notary Public City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 10 of 12 EXHIBIT "A" LEASED PREMISES J C City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 11 of 12 EXHIBIT "A" LEASED PREMISES SMITH Tt,•'0 - WAY RADIO DI NSM 1GORE TRAIL SITE t: KT AT&T F'. 3.T. •: o T -M0 GATE 12FT_ City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 12 of 12 TOWER SPACE AND GROUND LEASE AGREEMENT Smith Communications, LLC Tower and Wireless Communications Facility Located at: 3450 N. Hemlock Avenue. Fayetteville Washington AR Between SMITH COMMUNICATIONS, LLC and CITY OF FAYETTVILLE City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 1 of 12 TOWER SPACE AND GROUND LEASE AGREEMENT This TOWER SPACE AND GROUND LEASE AGREEMENT (the "Lease") is entered into on the ji st. day ofTra,,»L,,,, ..a l o, and is effective . day of 2011, by and between City of Fayetteville, a municipality organized and existing under the laws of the State of Arkansas, (hereinafter referred to as " CITY OF FAYETTVILLE "), and SMITH COMMUNICATIONS, LLC, a limited liability company organized and existing under the laws of the State of Arkansas (hereinafter referred to as "SMITH"), wherein the following mutual covenants and understandings are made and entered into upon the following terms and conditions: WITNESSETH SECTION ONE DESCRIPTION OF PROPERTY SMITH hereby lets and leases unto City of Fayetteville, and City of Fayetteville accepts from SMITH, subject to the terms and conditions contained herein, a certain portion of the Fulbright Wireless Communications Facility located at 3450 N. Hemlock Avenue Fayetteville, Arkansas, (hereinafter referred to as the "Leased Premises") for the duration of this Agreement. The Leased Premises also includes a right for ingress and egress, seven days per week, twenty-four hours per day, on foot or motor vehicle, including trucks, along a twenty-five foot wide right-of-way together with the right to install, replace and maintain utility wires, poles, cables, conduits and pipes. The Leased Premises is generally depicted in the attached Exhibit "A". SECTION TWO TERM This Lease shall be for an initial term of Three(3) years, beginning on the date of City of Fayetteville's Installation of equipment at the facility, executing the agreement, incorporated herein in full by reference (the "Initial Term"). This Lease shall automatically be extended for FIVE (5) subsequent THREE(3) year terms (the "Renewal Terms") unless City of Fayetteville terminates it pursuant to the provision set forth herein. The Initial Term and any Renewal Term or Renewal Terms shall be collectively referred to as the "Lease Term". City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 2 of 12 SECTION THREE RENT City of Fayetteville shall pay to SMITH Ten and No/100 Dollars ($10.00) upon the full execution of this Lease and the Agreement. City of Fayetteville shall pay to SMITH One Thousand Five Hundred and No/100 Dollars ($1,500.00) per month for a total of Eighteen Thousand and No/100 Dollars ($18,000.00) per year (the "Rent"). Lease payments shall consist of equal monthly installments with the first payment due at the commencement of the Initial Term with subsequent payments due on the first (1St) day of each following month for the duration of the Lease. In addition, on each annual renewal date the amount of the Rent shall be increased by an amount equal to 2% and hence forward shall be the amount known as the Rent. SECTION FOUR USE OF LEASED PREMISES The City of Fayetteville shall use the Leased Premises and all easements, rights and privileges herein granted only for the purpose of constructing, installing, maintaining and operating the City of Fayetteville Radio Communication System and uses incidental thereto. Premise use per Exhibit "B" and attached survey when complete. It is understood and agreed that all improvements shall be undertaken at City of Fayetteville's sole expense. City of Fayetteville will maintain the Leased Premises in a reasonable, neat and safe condition. SMITH hereby does covenant that it shall not take any action that would adversely affect the status of the Leased Premises with respect to the proposed use by City of Fayetteville. SECTION FIVE City of Fayetteville's RIGHT OF TERMINATION City of Fayetteville shall have the unilateral right to terminate this Lease, at any time, by providing SMITH with One Hundred Eighty (180) days prior written notice in conformance with the Notice requirements outlined in the Lease. Upon termination of this Lease by City of Fayetteville, shall become null and void and all of the parties shall have no further obligations, except that Leased Premises property shall be reasonably restored to its condition prior to the Lease execution. If restoration period extends beyond the termination notice period SMITH shall be entitled regular monthly rent until restoration is complete. City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 3 of 12 SECTION SIX APPROVALS (a) SMITH agrees that City of Fayetteville's ability to use the Premises is contingent upon the suitability of the Premises for Tenant's Permitted Use and Tenant's ability to obtain and maintain all governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by City of Fayetteville for its use of the Premises, including without limitation applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively, the "Government Approvals"). SMITH authorizes City of Fayetteville to prepare, execute and file all required applications to obtain Government Approvals for Tenant's Peiiiiitted Use under this Agreement and agrees to reasonably assist Tenant with such applications and with obtaining and maintaining the Government Approvals. In addition, Tenant shall have the right to initiate the ordering and/or scheduling of necessary utilities. (b) Tenant may also perform and obtain, at City of Fayetteville's sole cost and expense, soil borings, percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and under the Property, necessary to determine if the City of Fayetteville's use of the Premises will be compatible with City of Fayetteville's engineering specifications, system, design, operations or Government Approvals. SECTION SEVEN CONTINGENCY SMITH and City of Fayetteville agree that City of Fayetteville's ability to use the Leased Premises is contingent upon City of Fayetteville obtaining, after the full execution of this Lease and the Agreement, all of the certificates, permits, licenses and other approvals deemed necessary by City of Fayetteville, within City of Fayetteville's absolute discretion, to utilize the Leased Premises for the purposes set forth in Section Six above (the "Approvals"). SMITH agrees to execute any and all documents necessary to petition the appropriate public bodies for the Approvals and to be named as applicant if requested by City of Fayetteville. In the event that: (1) City of Fayetteville does not obtain, for any reason whatsoever, all of the Approvals; (2) any of the Approvals are in a form unacceptable to City of Fayetteville, within City of Fayetteville's absolute discretion; (3) any Approval issued to City of Fayetteville is canceled, expires, lapses or is otherwise withdrawn or terminated by governmental authority; or, (4) any investigation, including but not limited to soil boring tests, are found to be unsatisfactory so that City of Fayetteville, in its absolute discretion, will be unable to use the Leased Premises for its intended purposes, then City of Fayetteville shall have the right, at its sole discretion, to terminate this Lease. SECTION EIGHT City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 4 of 12 ENVIRONMENTAL City of Fayetteville shall not cause or permit to be caused the use, storage, generation, escape, disposal or release of any Hazardous Substances or Hazardous Wastes in any manner not sanctioned by law. In all events, City of Fayetteville shall indemnify and hold SMITH harmless from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the presence or release of any Hazardous Substances or Hazardous Wastes on the Leased Premises if caused by City of Fayetteville. City of Fayetteville shall execute such affidavits, representations and the like from time to time as SMITH may reasonably request concerning City of Fayetteville's best knowledge and belief as to the presence of Hazardous Substances or Hazardous Wastes on the Leased Premises For purposes of this Lease, the term "Hazardous Substances" shall be as defined in the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., and any regulations promulgated pursuant thereto, and as used to define "Hazardous Wastes" in the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and any regulations promulgated thereto. SECTION NINE INSURANCE At all times during the Lease Term, City of Fayetteville, at its sole expense, shall obtain and keep in force insurance which may be required by any federal, state or local statute or ordinance of any governmental body having jurisdiction in connection with the operation of City of Fayetteville's business upon the Leased Premises. SECTION TEN SALE OF PROPERTY If at any time during the Lease Term SMITH decides to sell all or part of SMITH's property, of which the Leased Premises is a part, to a purchaser other than City of Fayetteville, then such sale shall be under and subject to this Lease and City of Fayetteville's rights hereunder. Any sale by SMITH of the portion of the Leased Premises underlying the right-of-way herein granted shall be under and subject to the right of City of Fayetteville in and to said right-of-way. SECTION ELEVEN COVENANT OF TITLE SMITH covenants that SMITH is seized of good and sufficient title and interest City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 5 of 12 to the Property of which the Leased Premises is a part and has full authority to enter into and execute this Lease. SMITH further covenants that (1) there are no aspects of title that might interfere with or be adverse to City of Fayetteville's interests in and intended use of the Leased Premises and (2) title shall be such that City of Fayetteville will have the ability to obtain title insurance at regular rates. SECTION TWELVE DEFAULT In the event that there is a default by City of Fayetteville with respect to any of the provisions of this Lease or City of Fayetteville's obligations under the Lease, including the payment of Rent, SMITH shall give City of Fayetteville written notice of such default. After receipt of such written notice, City of Fayetteville shall have thirty (30) days in which to cure any monetary default and thirty (30) days in which to cure any non -monetary default. City of Fayetteville shall have such extended periods beyond the thirty days if the nature of the cure is such that it requires more than thirty (30) days and City of Fayetteville commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. SMITH may not maintain any action or effect any remedies for default against City of Fayetteville unless and until City of Fayetteville has failed to cure the same within the time periods provided in this Section. SECTION THIRTEEN MISCELLANEOUS A. The consent of either party to any act or the waiver by either party of a breach of any provision of this Lease shall not operate or be construed as a consent or waiver of any subsequent act or breach by the other party. B. Time shall be of the essence with respect to every term and condition of this Lease. C. This Lease may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall be deemed one instrument. SECTION FOURTEEN GOVERNING LAW Any and all claims or causes of action shall and must be filed only in the courts of the State of Arkansas for Washington County or the United States District Court for the Western District of Arkansas, which shall have exclusive jurisdiction over any and all disputes which arise between the parties under this Lease, whether in law or in equity. Each of the parties expressly agrees, consents, and stipulates that venue shall be City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 6 of 12 exclusively within said courts. Each of the parties expressly agrees, consents and stipulates to the exercise of personal jurisdiction over it and subject matter jurisdiction over any such controversy arising between the parties being only in the courts listed herein. The prevailing party shall be entitled to recover from the other party any reasonable costs and attorneys' fees incurred as a consequence of enforcing the provision of the lease, amount to be fixed by said court and shall be made part of the judgementor decree rendered. SECTION FIFTEEN NOTICES All notices hereunder shall be in writing and shall be given by (i) established express delivery service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested. Notices may also be given by facsimile transmission, provided that the notice is concurrently given by one of the above methods. Notices are effective upon receipt, or upon attempted delivery if delivery is refused or if delivery is impossible because of failure to provide reasonable means for accomplishing delivery. The notices shall be sent to the parties at the following addresses: To SMITH: SMITH COMMUNICATIONS, LLC Michael Smith 520 N. College Ave. Fayetteville, Arkansas 72701 To CITY OF FAYETTEVILLE OFFICE OF THE MAYOR 113 MOUNTAIN ST. FAYETTEVILLE, AR 72701 City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 7 of 12 SECTION SIXTEEN PARTIAL INVALIDITY In the event any one or more of the provisions contained in the Lease or Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remaining provisions of this Lease or the Agreement and this Lease or the Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein. SECTION SEVENTEEN REAL ESTATE TAXES THIS SECTION OMITED SECTION EIGHTEEN MERGER This Lease along with the Agreement contains the entire agreement between the parties and supersedes any prior or contemporaneous oral or written agreements which supplement or contradict the terms and provisions set forth herein. SECTION NINTEEN SITE MAINTENANCE SMITH shall be responsible for the routine maintenance of the site common and support areas. to include but not limited to: landscaping, mowing, weed control, signage, road access maintenance, painting, fence repair and damage caused by normal weathering and storm damage, as to the Smith Facility. City of Fayetteville shall be responsible for storm damage to its facilities and property. SIGNATURES APPEAR ON NEXT PAGE REST OF PAGE LEFT INTENTIONALLY BLANK IN WITNESS WHEREOF, SMITH and City of Fayetteville having read the foregoing City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 8 of 12 and intending to be legally bound hereby, have executed this Lease as of the day and year first written above. City of Fayetteville: SMITH: STATE OF ARKANSAS COUNTY OF WASHINGTON Prir Title: MAYOR SMITH COMMUNICATIONS, LLC Printed ��J/GLr� b - L Title: PRESIDENT ACKNOWLEDGMENT ss. BE IT REMEMBERED that on this day of % , 201&, came before me, the undersigned, a Notary Public, duly commissioned, qualified and acting, within and for the said County and State, Michael B Smith, known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged that he had executed the same for the purposes therein set forth. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: . ' o2Q —2/3 Notary Public )UNNA S. SULLIVAN PUBLIC -STATE OF ARKP STATE OF ARKANSAS ) 3HINGTON COUNTY City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 9 of 12 ) ss. COUNTY OF WASHINGTON ) BE IT REMEMBERED that on this day of , 20L, came before me, the undersigned, a Notary Publicj�dul commissioned, qualified and acting, within and for the said County and State, La OII eI � _, , known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged that he had executed the same for the purposes therein set forth. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: \fiL jt 1-0101 U Notary Public City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 10 of 12 EXHIBIT "A" LEASED PREMISES AAON _PILL 01- .1500 IN/fl 00E 16 56�W POLYGON ri0N T-1lAT 44 CITY OF iT' - L ruli,r.1--TRANS / REC Antenna with I MAAPPIpt1F AgCE.. AMii21k11 11-- 3/8 in. 1026 cable 1.14400 10'I-- 7/8 in.coax cable OLQe. C19ndv 3.134.90 60010123 6134.00 T4A 3 124x9 600 10123 5 124.00 TMA 3 11400 742265 3 104.00 742 265 2 2-94,00-"F lAoamt oP. 6. 2" 8.4p00 F Y 50010269E 7.00Q, {d 17911 m t?F Cl oz'Wad 70.0 1.00 L .65 21.2 2 M" VIM tood x.75 60.6 LOD .60 1.69 .65 159 3 {0oavtFa 500 100 1.69 .65 10.6 kea.8oao c l cgui,oroa I cat (ka,)it d 16,0 8 452 1.5 1.d lood 6.75 19.7S0374 1.2 1.21 15.4 236.5 .75 6x12ACCE55 0 GVaW3W (] )4 CITY OF FAYE1TEVILLE 94Ft AGLYOPI� em 6 0, SPEC f605Fi rs OdY t --i 1-- 21t. Mlcrowae Diohw/ ice guard 2Z36 40.35 2500 6500 4572-65 OdY TOTAL 11500 0 1.45 1.300 400 A446-61 .4o 1) .'i .i.iiA FEED i'e 8187 07101E PtI E 2) TKE NoltOP0EE WAS 11r.'.CVE9-g1 'C,3.( -.. 110/15%-222-1. 5f ' JUL 6 2009 SMITH TWO-WAY RADIO, INC. SEtbr13 Fuibright, AR Tocnrttttou 150.00 SLIMUNE 10x75ACCESS0360100' 4375' Pad 8ASE 150' Tack s` &» DeAlrolfi NO. - to edtst25.f 10.09033 C- T44 �� a aa+oi°t6"' niza oXki09A 10 -07033 —PE _ L11A16( HY _ g R ZROM 00M I PAGE .p8 N.T.S I 1 City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 11 of 12 EXHIBIT "A" LEASED PREMISES 2 EXl5T/N LAN05CAPE/NG ° IU try aft. Wooden Pence I' Z � � � I G U�ILO Ey Rp` E � r'i I AT�T Ice Bridge (/oft.) Underground Utihties Path EXl5T/NG LAND5CAPF/NG :ity of FayettewIle 2x /0 5uddmg LXI5TING LAND5CAPE/NG 9" City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 12 of 12 Chief Tabor rove a resolution imunications LLC 000. City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements 12/21/2010 City Council Meeting Date Agenda Items Only Police Police I 4- ( Division Department Action Required: .ing the Mayor to enter into two lease agreements with Smith Two Way Radio use of radio tower space at 3300 W. Dinsmore an 3450 N. Hemlock in the amount of $36,000 $1,694,268 Cost of this request Category / Project Bu et 4470-9470-5309.00 $ - Account Number Funds Use o Date 08076 $ 1,694,268.00 Project Number a aining Balance Budgeted Item �X Budge d stment Attached Department irecto U Date City Aftotfiey Date ji 2i I Finance and Internal Servi s Director Date 0 ______ Chie of if Date .�.... I v 15ate Mayor Simulcast Radio System Program Category / Project Name Program / Project Category Name Various Fund Name Previous Ordinance or Resolution # Original Contract Date: ginal Contract Number: Received Clerk's Received in Mayors Office 12-03-10P03:23 RCVD /,; nC . Revised January 15, 2009 �a e evi e ARKANSAS THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE CITY COUNCIL AGENDA MEMO To: Mayor Jordan and Members of the Fayetteville City Council Thru: Greg Tabor, Chief of Police 6`rb`j From: Kathleen Stocker, Dispatch Manager] Date: December 3, 2010 Subject: Radio Tower Site ease Agreement (3300 W. Diii more and 3450 N. Hemlock) PROPOSAL: Approve a resolutio authorizing the May(to enter into two lease agreement with Smith Two Way Radio Communications LLC for he use of radio toyer space at 3300 W. Dinsmore and 3450 N. Hemlock. These two lease agreements shall be fran initial to of Three (3) years, beginning on the date of City of Fayetteville's executing the agreement, nd shall autphiatically be extended for FIVE (5) subsequent THREE (3) year terms unless City of Fayetteville rminates t pursuant to the provision set forth in the agreement. The annual cost of 3300 W. Dinsmore Lease is $ 1 8,0j0 with a 3% yearly annual increase. The annual cost of the site on Hemlock is $ 18,000 with a 3% yearl aival increase. RECOMMENDATION: Award three%year leash agreement to Smith Two Way Radio Communications LLC with options to automatically extend th agreement hrough the life of this radio system. BUDGET IMPACT: Annual e pense for the lease a eements will be included in the radio project budget for 2011 and then placed in the o erating budget beginni in 2012. cupiJ Lvd.rakWW Smith Communications, LLC. Page 1 of 12 TOWER SPACE AND GROUND LEASE AGREEMENT This TOWER SPACE AND GROUND LEASE AGREEMENT (the "Lease") is entered into on the _ st. day of , and is effective . day of 2011, by and between City of Fayetteville, a municipality organized and existing under the laws of the State of Arkansas, (hereinafter referred to as "CITY OF FAYETTVILLE "), and SMITH COMMUNICATIONS, LLC, a limited liability company organized and existing under the laws of the State of Arkansas (hereinafter referred to as "SMITH"), wherein the following mutual covenants and understandings are made and entered into upon the following terms and conditions: // WITNESSETH SECTION ONE CRIPTION OF PR( SMITH hereby lets and leases unto city of Fayetteville, and City of Fayetteville accepts from SMITHubject to the terrp and conditions contained herein, a certain portion of the Fulbright Wless Communications Facility located at 3450 N. Hemlock Avenue Fayetteville, Arkansas, (he 6inafter referred to as the "Leased Premises") for the duration of this Agreement. / The Leased Premises also includes - right for ingress and egress, seven days per week, twenty-four hours per day, on fo r motor vehicle, including trucks, along a twenty-five foot wide right-of-way toge er wth the right to install, replace and maintain utility wires, poles, cables, conduits apfl pipes. he Leased Premises is generally depicted in the attached Exhibit "A". f SECTION I TERM This Lease shall b for an initial term of Three(3 years, beginning on the date of City of Fayetteville's executing the agreement, incorpor ted herein in full by reference (the "Initial Term"). is Lease shall automatically be ext ded for FIVE (5) subsequent THREE(3) year ter s (the "Renewal Terms") unless City f Fayetteville terminates it pursuant to the pro ision set forth herein. The Initial Term nd any Renewal Term or Renewal Terms s all be collectively referred to as the "Lease T fm". City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 2 of 12 SECTION THREE RENT City of Fayetteville shall pay to SMITH Ten and No/100 Dollars ($10.00) upon the full execution of this Lease and the Agreement. City of Fayettevjlle shall pay to SMITH One Thousand Five Hundred and No/100 Dollars ($1,500.0.)' per month for a total of Eighteen Thousand and No/100 Dollars ($18,000.00) per ye (the "Rent"). Lease payments shall consist of equal monthly installments with the 'rst payment due at the commencement of the Initial Term with subsequent payments,due on the first (1St) day of each following month for the duration of the Lease. In add' on, on each annual renewal date the amount of the Rent shall be increased by an ount equal to 3% and hence forward shall be the amount known as the Rent. SECTION USE OF LEASE] The City of Fayetteville shall use the privileges herein granted only for the pt operating the City of Fayetteville R thereto. Premise use per Exhibr " I understood and agreed that all im fo°vei sole expense. City of Fayettevil e will and safe condition. SMIT ereby d( would adversely affect the atus of the by City of Fayetteville. , Losased Premises and all easements, rights and e of constructing, installing, maintaining and io Communication System and uses incidental " and attached survey when complete. It is ients shall be undertaken at City of Fayetteville's taintain the Leased Premises in a reasonable, neat 6�S covenant that it shall not take any action that sed Premises with respect to the proposed use SECTION FINE City of Fayetteville's RIGHT TERMINATION City of Fayetteville shall have the unilateral Night to terminate this Lease, at any time, by oviding SMITH with One Hundred Eight (180) days prior written notice in conformAnce with the Notice requirements outlined in th Lease. Upon termination of this Lease by City of Fayettevill , shall become null and void an all of the parties shall have no further obligations, e ept that Leased Premises operty shall be reasonably restored to its condition prior t the Lease execution. If estoration period extends beyond the termination notice period shall be entitled regular monthly rent until restoration is complete. City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 3 of 12 SECTION SIX APPROVALS (a) SMITH agrees that City of Fayetteville's ability to use ftie Premises is contingent upon the suitability of the Premises for Tenant's PermittedJse and Tenant's ability to obtain and maintain all governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by City of Fayett ille for its use of the Premises, including without limitation applications for zo/ing variances, zoning ordinances, amendments, special use permits, and constructio permits (collectively, the "Government Approvals"). SMITH authorizes City of Fay�tteville to prepare, execute and file all required applications to obtain Government A royals for Tenant's Permitted Use under t 's Agreement and agrees to reasonably ass)t Tenant with such applications and with obtai 'Ngitiate and maintaining the Government Approvals. In addition, Tenant shall have the right tthe ordering and/or schedulipg of necessary utilities. (b) Ten nt may also perform and obtai , at City of Fayetteville's sole cost and expense, soil bon , s, percolation tests, e gineering procedures, environmental investigation or other ests or reports on, ov r, and under the Property, necessary to determine if the City of ' yetteville's use of,t1e Premises will be compatible with City of Fayetteville's engineering',, specifications, system, design, operations or Government Approvals. ON SEVEN 'INGENCY SMITH and City ofayetteville--agree that City of Fayetteville's ability to use the Leased Premises is contingent upon City Fayetteville obtaining, after the full execution of this Lease and the greement, all of he certificates, permits, licenses and other approvals deemed nece ary by City of Faye eville\aand within City of Fayetteville's absolute discretion, to utilize t€ Leased Premises for 11erposes set forth in Section Six above (the "Approvals"). SMITH agrees to exny and all documents necessary to petition the approp late public bodies for thevals and to be named as applicant if requested by Cit of Fayetteville. In the evt: (1) City of Fayetteville does not obtain, for any r ason whatsoever, all of the As; (2) any of the Approvals are in a form unaccep ble to City of Fayettevillein City of Fayetteville's absolute discretion; (3 any Approval issued to City ottevi is canceled, expires, lapses or is otherwis withdrawn or terminated bernme tal authority; or, (4) any investigatio , including but not limited to soilg tests, found to be unsatisfactory so that Cit of Fayetteville, in its absolute don, will be unable to use the Leased Premises f r its intended purposes, then Cityyetteville sflll have the right, at its sole discretion, to terminate this Lease. SECTION EIGHT ENVIRONMENTAL City of Fayetteville ---- Tower Space and Ground Lease Agreement - ,\ Smith Communications, LLC. Page 44.of 12 City of Fayetteville shall not cause or permit to be caused the use, rage, generation, escape, disposal or release of any Hazardous Substances or,l4azardous Wastes in any manner not sanctioned by law. In all events, City of Fay teville shall indemnify and hold SMITH harmless from any and all claims, mages, fines, judgments, penalties, costs, liabilities or losses (including, without limi tion, any and all sums paid for settle ent of claims, attorneys' fees, and consultants' and experts' fees) from the presence or re se of any Hazardous Substances or Ha�dous Wastes on the Leased Premises if cause by City of Fayetteville or perso3I acting under City of Fayetteville. City of Fayette ille shall execute such affidavi , representations and the like from time to time as SMITH may reasonably �quest concerning City of Fayetteville's best knowledge an4 belief as to the presenc6 of Hazardous Substances or Hazardous Wastes on the Leased Premises For purposes of this Lease, th term in the Comprehensive Environmental Res[ U.S.C. §§ 9601 et seq., and any regulati ns define "Hazardous Wastes" in the Resou e §§ 6901 et seq., and any regulations prom At all times during obtain and keep in force statute or ordinance of ) operation of City of yett ON r.aadous Substances" shall be as defined (Compensation, and Liability Act, 42 Lulgated pursuant thereto, and as used to servation and Recovery Act, 42 U.S.C. thereto. 1(e Lease Term, City of Fa .surance which may be re governmental body having ville's business upon the Lf SECTION TEN SALE OF PROPERTY ville, at its sole expense, shall by any federal, state or local fiction in connection with the Premises. If at any time during the Lease Term SMITH decide to sell all or part of /Faet�tseville's s property, of which the Leased Premises is a part, to a pur aser other than City tteville, then such sale shall be under and subject to this ase and City of rights hereunder. Any sale by SMITH of the porti n of the Leased s underlying the right-of-way herein granted shall be under ansubject to the City of Fayetteville in and to said right-of-way. SECTION ELEVEN COVENANT OF TITLE SMITH covenants that SMITH is seized of good and sufficient title and City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 5 of 12 to the Property of which the Leased Premises is a part and has full authority to enter into and execute this Lease. SMITH further covenants that (1) there are no aspects of title that might interfere with or be adverse to City of Fayetteville's interests in and intended use of the Leased Premises and (2) title shall be such that City of Fayetteville yi11-have the ability to obtain title insurance at regular rates. SECTION TWELVE DEFAULT In the even t there is a default by City of Fayetteille with respect to any of the provisions of this Jase or City of Fayetteville's Fbbligations under the Lease, including the payment of 1nt, SMITH shall give Cityr`of Fayetteville written notice of such default. After receipt o such written notice, Chi' y of Fayetteville shall have thirty (30) days in which to cure any ionetary default an e thirty (30) days in which to cure any non -monetary default. City of F et thirty days if the nature of the cure City of Fayetteville commences the continuously and diligently pursues I any action or effect any remedies for City of Fayetteville has failed to cud Section. / wille shaljAiave such extended periods beyond the such th it requires more than thirty (30) days and are w)11in the thirty (30) day period and thereafter 9ire to completion. SMITH may not maintain I ult against City of Fayetteville unless and until the ame within the time periods provided in this SECTION A. The covent of either party to any act r the waiver by either party of a breach of fiiy provision of this Lease shall hot operate or be construed as a consent waiver of any subsequent act or breac by the other party. Yse. ime shall be of the essence with respect to ev y term and condition of this C. This Lease may be executed in multiple counterparts, ach of which shall be deemed an original, and all of which taken together all be deemed one instrument. SECTION FOURTEEN GOVERNING LAW Any and all claims or causes of action shall and must be filed only in the��urts of the State of Arkansas for Washington County or the United States District Court the Western District of Arkansas, which shall have exclusive jurisdiction over any and\411 disputes which arise between the parties under this Lease, whether in law or in equit�> Each of the parties expressly agrees, consents, and stipulates that venue shall be City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 6 of 12 exclusively within said courts. Each of the parties expressly agrees, consen and stipulates to the exercise of personal jurisdiction over it and subject matter ju 'sdiction over any such controversy arising between the parties being only in the urts listed herein. The prevailing party shall be entitled to recover from the o er party any reasonable costs and attorneys' fees incurred as a consequence of enforcit g the provision of the lease, amount to be fixed by said court and shall be made part 4 the judgementor decree rendered. SECTION FIFTEEN NOTICES All notices h eunder shall be in writing an shall be given by (i) established express delivery service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mai , postage prepaid, retur receipt requested. Notices may also be given by facsimile transmis ion, provided that e notice is concurrently given by one of the above methods. Notice are effective yon receipt, or upon attempted delivery if delivery is refused or if deliv y is impo able because of failure to provide reasonable means for accomplishing delive . The tices shall be sent to the parties at the following addresses: To SMITH: SMITH CO UNICATIONS, LLC Michael Smith 520 N. College A e. Fayetteville, Arkanas 72701 To CITY OF FAYETTEVILLE OFFICE OF THE MAYOR 113 MOUNTAIN ST. FAYETTEVILLE, AR 72701 City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 7 of 12 SECTION SIXTEEN PARTIAL INVALIDITY In the event any one or more of the provisions contained in the Lease or reement shall for any reason be held to be invalid, illegal or unenforceable in any r pect, such invalidity, illegality or u enforceability shall not affect the remaining pro sions of this Lease or the Agreement ah this Lease or the Agreement shall be contfued as if such invalid, illegal or unenforceabI provision or provisions had never been contained herein. ON SEVENTEEN ESTATE TAXES City of Fayetteville agrees to p y for any documented increase in real estate taxes levied against the Leased Premises th t are directly attributable to the improvements constructed by City of Fayetteville. SMITH agrees �' provide City of Fayetteville any documentation evidencing the increase a d how su�1i increase is attributable to City of Fayetteville's use. City of Fayetteville reserv. s the right to challenge any such assessment, and SMITH agrees to cooperat\wit City of Fayetteville in connection with any such challenge. SECTION E1 HTEEN This Lease along with the/Aement con 'ns the entire agreement between the parties and supersedes any priorntemporaneo s oral or written agreements which supplement or contradict the termsovisions set f h herein. SECTION NINTEEN SITE MAINTENANCE SMITH shall b/responsible for the routine maintenanc of the site common and support areas. to inc de but not limited to: landscaping, mowingg�weed control, signage, road access mainte ance, painting, fence repair and damage cause 1 by normal weathering and storm dama , as to the Smith Facility. City of Fayetteville sha be responsible for storm damage t� its facilities and property. SIGNATURES APPEAR ON NEXT PAGE REST OF PAGE LEFT INTENTIONALLY BLANK `City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 8 of 12 IN WITNESS WHEREOF, SMITH and City of Fayetteville having read the f1pfegoing and intending to be legally bound hereby, have executed this Lease as of the d� and year first written above. City of IA Printed Title: MAYOR SMITH: : PRESIDENT STATE OF ARKANSAS/ ) ) ss. COUNTY OF WASHTGTON ) LLC BE IT RE EMBERED that on this 'day of 20J, came before me, the undersig ed, a Notary Public, duly commissioned, qualified and acting, within and for the said Cou ty and State, Michael B Smith, known to me (osatisfactorily proven) to be the person wh9 e name is subscribed to the foregoing instrument and acknowledged that he had executed/he same for the purposes therein set forth. INWITNESS WHEREOF, I hereunto set my hand and �:` �r /asfiing¢on G My Co miss on Expires: 1U1 //1 Notary tublic City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 9 of 12 STATE OF ARKANSAS ) ss. COUNTY OF WASHINGTON BE IT REMEMBERED that on this day of , 20_, came before me, the undersigned, a Notary Public, duly commissioned, qualified and, acting, within and for the said County and State, , known tome (or satisfactorily proven) to be the I Rrs�n whose name is subscribed to the foregoing instrument and acknowledged that he had`executed the same for the purposes therein set forth. IN WITNESS My Commission Expires: I hereunto set my hand and official seal. Notary City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 10 of 12 LEASED PREMISES City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. Page 11 of 12 EXHIBIT "A" LEASED PREMISES City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Communications, LLC. R I Page 12 of 12 J\1UlQb City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 1 of 12 TOWER SPACE AND GROUND LEASE AGREEMENT This TOWER SPACE AND GROUND LEASE AGREEE"Lease") is entered into on the st. day of and is �ffecZiv�e'th st. day of 2011, by and between City of Fayetteville, a munic4tas orgajzfzed and existing under the laws of the State of Arkansas, (hereinafter rCITY OF FAYETTVILLE " and SMITH COMMUNICATIONited liability company organize and existing under the laws of the Sts (hereinafter referred to as "SM H"), wherein the following mutual covestandings are made and entered in upon the following terms and condition WITNESSETH SECTION ONFY DESCRIPTION OF P OPERTY SMITH hereby lets accepts from SMITH, subjt of the Dinsmore Wireless Fayetteville, Arkansas, (hei of this Agreement. The Leased Premises week, twenty-four hours per twenty-five foot wide right-yl wires, poles, cables/co in the attached Exhibit "X". leases unto �ty of Fayetteville, and City of Fayetteville the terms conditions contained herein, a certain portion municati s Facility located at 3300 N. Dinsmore Trail :ter refred to as the "Leased Premises") for the duration als eludes a right for ingress and egress, seven days per ay, n foot or motor vehicle, including trucks, along a -way tether with the right to install, replace and maintain iduits ai�l pipes. The Leased Premises is generally depicted 111i'LI] This ase shall be for an initial term o hre City of F etteville's executing the agreement, i coi (the "In' ial Term"). This Lease shall automaticall b TH (3) year terms (the "Renewal Terms") unle purytSant to the provision set forth herein. The Initi; Renewal Terms shall be collectively referred to as the 3) years, beginning on the date of orated herein in full by reference extended for FIVE (5) subsequent City of Fayetteville terminates it Term and any Renewal Term or fease Term". City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 2 of 12 SECTION THREE RENT City of Fayetteville shall pay to SMITH Ten and No/100 Dollars (10.00) upon the full execution of this Lease and the Agreement. City of Fayetteville s all pay to the SMITH One Thousand Five Hundred and No/100 Dollars ($1,500.00) per month for a total of Eighteen Thousand and No/100 Dollars ($18,000.00) per year (t, e "Rent"). Lease payments shall consist of equal monthly installments with the first jayment due at the commencement of the Initial Term with subsequent payments due o the first (1st) day of each following montI for the duration of the Lease. In addition, �i each annual renewal date the amount of t e Rent shall be increase by an amount qual to 3% and hence forward shall be the arhount known as the Rent. SECTION FOUR OF LEASED PREP The City of Fayetteville shall se the Leased P emises and all easements, rights and privileges herein granted only for he purpose o constructing, installing, maintaining and operating the City of Fayetteville Radii thereto. Premise use per Exhibit `B" understood and agreed that all improv E sole expense. City of Fayetteville will and safe condition. SMITH hereby would adversely affect the status of t e L by City of Fayetteville. C unication System and uses incidental � d attached survey when complete. It is .ts shall be undertaken at City of Fayetteville's itain the Leased Premises in a reasonable, neat covenant that it shall not take any action that Lsed Premises with respect to the proposed use SECTION I'4VE City of F etteville's RIGHT F TERMINATION City of Fayettev' le shall have the unilateral ight to terminate this Lease, at any time, by providing S ITH with One Hundred Eight (180) days prior written notice in conformance with tM Notice requirements outlined in t Lease. Upon ter 'nation of this Lease by City of Fayettev le, shall become null and void and all of the arties shall have no further obligations, �cept that Leased Premises property shaY be reasonably restored to its condition prior to the Lease execution. If restoration jIeriod extends beyond the termination notice perio& SMITH shall be entitled regular m thly rent until restoration is complete. City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 3 of 12 SECTION SIX APPROVALS (a) SMITH agrees that City of Fayetteville's abilifrT to use the Premises is contingent upon the suitability of the Premises for Tenant's ermitted Use and Tenant's ability to obtain and maintain all governmental licenses, per its, approvals or other relief required of or deemed necessary or appropriate by City o ayetteville for its use of the Premises, including without limitation applications or zoning variances, zoning ordinances, amencments, special use permits, and con ruction permits (collectively, the "Government Ap rovals"). SMITH authorizes City of Fayetteville to prepare, execute and file all require applications to obtain Governnt Approvals for Tenant's Permitted Use under this Agre ment and agrees to reasonab assist Tenant with such applications and with obtaining an maintaining the Govern nt Approvals. In addition, Tenant shall have the right to initiat the ordering and/or sc duling of necessary utilities. (b) Tenant m also perform and �nain, at City of Fayetteville's sole cost and expense, soil borings, ercolation test/ engineering procedures, environmental investigation or other tests or reports o , over, and under the Property, necessary to determine if the City of Faye vil1e's us/of the Premises will be compatible with City of Fayetteville's engineering spe'ficati�is, system, design, operations or Government Approvals. ON SEVEN 'INGENCY SMITH and City of ayetteville a ree that City of Fayetteville's ability to use the Leased Premises is contin nt upon City of ayetteville obtaining, after the full execution of this Lease and the %greement, all of the certificates, permits, licenses and other approvals deemed nece sary by City of Fayett ille, within City of Fayetteville's absolute discretion, to utilize tjie Leased Premises for th purposes set forth in Section Six above (the "Approvals"). SMITH agrees to execut� any and all documents necessary to petition the appro fate public bodies for the Appr vals and to be named as applicant if requested by Cite of Fayetteville. In the event tha (1) City of Fayetteville does not obtain, for any ason whatsoever, all of the Approvals (2) any of the Approvals are in a form unaccepfable to City of Fayetteville, within ity of Fayetteville's absolute discretion; any Approval issued to City of Fayetteville 's canceled, expires, lapses or is otherw' e withdrawn or terminated by governmen authority; or, (4) any investigation, including but not limited to soil boring tests, are ound to be unsatisfactory so that City of Fayetteville, in its absolute discretion, will be table to use the Leased Premises for its intended purposes, then City of Fayetteville shall have the right, at its sole discretion, to terminate this Lease. SECTION EIGHT ENVIRONMENTAL City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 4 of 12 City of Fayetteville shall not cause or permit to be caused the use, storage, generation, escape, disposal or release of any Hazardous Substances or Hazardous Wastes in any manner not sanctioned by law. In all events, City of Fayetteville shall indemnify and hold SMITH harmless from any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consul nts' and experts' fees) from the presence or release of any Hazardous Substances or azardous Wastes on the Leased Premises if c used by City of Fayetteville or pe ons acting under City of Fayetteville. City of fVayetteville shall execute such affi4Ivits, representations and the like from time to ti me as SMITH may reasonabl request concerning City of Fayetteville's best knledge and belief as to the pres ce of Hazardous Substances or Hazardous Wastes on Leased Premises For purposes of t is Lease, the term in the Comprehensive En ironmental Respo U.S.C. §§ 9601 et seq., and ny regulations pi define "Hazardous Wastes" i the Resource §§ 6901 et seq., and any regula 'ons promul/ rdous Substances" shall be as defined Compensation, and Liability Act, 42 ulgated pursuant thereto, and as used to servation and Recovery Act, 42 U.S.C. thereto. N NINE At all times during the Lee Tehi, City of Fayetteville, at its sole expense, shall obtain and keep in force insura e which ay be required by any federal, state or local statute or ordinance of any go rnmental b�ly having jurisdiction in connection with the operation of City of Fayettev' le's business up\n the Leased Premises. SECTION T �N SALE OF PROPS TY If at any t' e during the Lease Term SM decides to sell all or part of SMITH's property' of which the Leased Premises is a pa}, to a purchaser other than City of Fayetteville, then such sale shall be under and subj t to this Lease and City of Fayetteville's ights hereunder. Any sale by SMITH o the portion of the Leased Premises u erlying the right-of-way herein granted shall b under and subject to the right of Ci of Fayetteville in and to said right-of-way. SECTION ELEVEN COVENANT OF TITLE SMITH covenants that SMITH is seized of good and sufficient title and interest City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 5 of 12 to the Property of which the Leased Premises is a part and has full authority to enter into and execute this Lease. SMITH further covenants that (1) there are no aspects of title that might interfere with or be adverse to City of Fayetteville' interests in and intended use of the Leased Premises and (2) title shall be such that Ci of Fayetteville will have the ability to obtain title insurance at regular rates. SECTION TWELVE DEFAULT / In the event that there is a default by City o Fayetteville with respect to any of the provision of this Lease or City of Fayett ille's obligations under the Lease, including the ayment of Rent, SMITH shall gi e City of Fayetteville written notice of such default. tfter receipt of such written notice, City of Fayetteville shall have thirty (30) days in which to cure any monetary defai1t and thirty (30) days in which to cure any non -monetary d cult. City of Fayetteville all have such extended periods beyond the thirty days if the hature of the cure is such at it requires more than thirty (30) days and City of Fayettevill commences the cure ftithin the thirty (30) day period and thereafter continuously and di1 ently pursues the ure to completion. SMITH may not maintain any action or effect an remedies for 4fault against City of Fayetteville unless and until City of Fayetteville has ailed to cur the same within the time periods provided in this Section. ECTION THIRTEEN MISCELLANEOUS A. The consent of either arty to any act or the waiver by either party of a breach of any pr ision of is Lease shall not operate or be construed as a consent or waive of any subse uent act or breach by the other party. B. Time sha/be of the essen\initiple spect to every term and condition of this Lease. / \ C. This ase may be executecounterparts, each of which shall be deem'd an original, and ach taken together shall be deemed one SECTION FOURT N GOVERNING LAW Aq and all claims or causes of action shall and m t be filed only in the courts of the State f Arkansas for Washington County or the Unite tates District Court for the Wester District of Arkansas, which shall have exclusive jurisdiction over any and all disputeA. which arise between the parties under this Lease, whether in law or in equity. Each of the parties expressly agrees, consents, and stipulates that venue shall be City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 6 of 12 exclusively within said courts. Each of the parties expressly agrees, con 'ents and stipulates to the exercise of personal jurisdiction over it and subject matter jurisdiction over any such controversy arising between the parties being only in the ourts listed herein. The prevailing party shall be entitled to recover from the o er party any reasonable costs and attorneys' fees incurred as a consequence of enforc' g the provision of the lease, amount to be fixed by said court and shall be made part the judgementor decree rendered. SECTION FIFTEEN NOTICES All noti s hereunder shall be in writing and sh l be given by (i) established express delivery s vice which maintains delivery rec ds, (ii) hand delivery, or (iii) certified or registers ail, postage prepaid, return rece' t requested. Notices may also be given by facsimile tran mission, provided that the no ce is concurrently given by one of the above methods. N\divery are effective upon r eipt, or upon attempted delivery if delivery is refused or if is impossible b ause of failure to provide reasonable means for accomplishinry. The notices s all be sent to the parties at the following addresses: To SMITH: SM1TT\VO- WAY RADIO, INC N. Colle& Ave. 72701 To CITY OF FAYETTEVILLE OFFICE OF THE MAYO I13 MOUNTAIN ST. FAYETTEVILLE, AR 72701 City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 7 of 12 SECTION SIXTEEN PARTIAL INVALIDITY In the event any one or more of the provisions contained in the Lease or Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the remaining provisions of this Lease or the Agreement and this Lease or the Agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had nevr been contained herein. SECTION SEVEN REAL ESTATE T. City o Fayetteville agrees to pay for any levied against e Leased Premises that are di constructed by City of Fayetteville. SMITH a� documentation evi encing the increase and ho Fayetteville's use. City of Fayetteville r e assessment, and SMII agrees to cooperat wit any such challenge. loc mented increase in real estate taxes ly attributable to the improvements es to provide City of Fayetteville any such increase is attributable to City of ies the right to challenge any such City of Fayetteville in connection with SECTION EIGHTEEN This Lease along with ike Jreement contains the entire agreement between the parties and supersedes any prior contemporaneous oral or written agreements which supplement or contradict the terms,fth€I provisions set forth herein. SECTI N NINTEEN SITE MA\1andsa E SMITH shall be sponsible for thetenance of the site common and support areas. to includ but not limited tomowing, weed control, signage, road access mainten e, painting, fence rage caused by normal weathering and storm damage, to the Smith Facilitytteville shall be responsible for storm damage to it facilities and property SIGNATURES APPEAR ON NEXT PAGE REST OF PAGE LEFT INTENTIONALLY BLANK City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 8 of 12 IN WITNESS WHEREOF, SMITH and City of Fayetteville having and intending to be legally bound hereby, have executed this Lease as first written above. City of Fayetteville: By: Printed Title: SMITH: I: STATE OF COUNTY OF WASIINGTON ss. PRESIDENT the foregoing day and year TT BE IT R,EMBERED that on this. dday of 2pk, came before me, the under 'gned, a Notary Public, duly commissioned, qualified and c,ing, within and for the said county and State, Michael B Smith, known to me (or satisfactori proven) to be the person whose name is subscribed to the foregoing instrument and acknowledged that he had exec ed the same for the purposes therein set forth. WITNESS WHEREOF, I hereunto set my hand and off ial MARIE SVLVSS$�R s €' WashingtcTh ©eutitg M CoConrmsion Expires: My O B 1 f // Notar Public City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 9 of 12 STATE OF ARKANSAS ) ) ss. COUNTY OF WASHINGTON BE IT REME BERED that on this day of 0, came before me, the undersigned/a Notary Public, duly commissioned, qualified d acting, within and for the said County nd State, , known/o me (or satisfactorily proven) to be the erson whose name is subscribed to the f egoing instrument and acknowledged that h had executed the same for the purposes th ein set forth. IN WITNESS WHEREOF, I hereunto set my hand a(d official seal. My Commission Expires: Notary City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 10 of 12 EXHIBIT "A" LEASED PREMISES City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 11 of 12 EXHIBIT "A" LEASED PREMISES City of Fayetteville ---- Tower Space and Ground Lease Agreement - Smith Two-way Radio, Inc. Page 12 of 12