HomeMy WebLinkAbout61-19 RESOLUTION113 West Mountain
Street Fayetteville, AR
72701
(479) 575-8323
Resolution: 61-19
File Number: 2019-0118
CROWN CASTLE USA, INC.:
A RESOLUTION TO APPROVE A FIVE YEAR LAND LEASE AGREEMENT WITH NCWPCS MPL 28
- YEAR SITES TOWER HOLDINGS, LLC, A SUBSIDIARY OF CROWN CASTLE USA INC. WITH
AUTOMATIC RENEWALS FOR THREE ADDITIONAL FIVE YEAR TERMS FOR WIRELESS
COMMUNICATIONS TOWER SPACE NEAR THE TOWNSHIP WATER TANK
WHEREAS, the City of Fayetteville previously entered into an Agreement with Telecorp Realty, LLC
(later purchased by AT&T) to lease space near the Township water tank for the construction and
operation of a wireless communications tower; and
WHEREAS, in 2013, AT&T assigned its leasehold rights to this property to Crown Castle International
Corporation; and
WHEREAS, Crown Castle wishes to enter into a new agreement that would allow the wireless
communications tower to remain on City property for up to twenty more years.
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 authorizes Mayor Jordan to sign
the attached Land Lease Agreement with NCWPCS MPL 28 - Year Sites Tower Holdings, LLC, a subsidiary
of Crown Castle USA, Inc. for a wireless communications tower near the Township Water Tank for an initial
five year term in the amount of $1,750.00 per month for the first wireless communications provider, with
automatic extensions for three additional five year terms with rent escalating in the amount of 10% per
renewal term and with a revenue sharing provision for additional
Page 1 Printed on 317119
Resolution Number 61-19
File Number. 2019-0118
wireless communications providers.
PASSED and APPROVED on 3/5/2019
Attest:
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Page 2 Printed on 317119
_ City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
,c Text File
--- File Number: 2019-0118
Agenda Date: 3/5/2019 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: A. 13
CROWN CASTLE USA, INC.:
A RESOLUTION TO APPROVE A FIVE YEAR LAND LEASE AGREEMENT WITH NCWPCS MPL
28 - YEAR SITES TOWER HOLDINGS, LLC, A SUBSIDIARY OF CROWN CASTLE USA INC.
WITH AUTOMATIC RENEWALS FOR THREE ADDITIONAL FIVE YEAR TERMS FOR WIRELESS
COMMUNICATIONS TOWER SPACE NEAR THE TOWNSHIP WATER TANK
WHEREAS, the City of Fayetteville previously entered into an Agreement with Telecorp Realty, LLC (later
purchased by AT&T) to lease space near the Township water tank for the construction and operation of a
wireless communications tower; and
WHEREAS, in 2013, AT&T assigned its leasehold rights to this property to Crown Castle International
Corpororation; and
WHEREAS, Crown Castle wishes to enter into a new agreement that would allow the wireless
communications tower to remain on City property for up to twenty more years.
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 authorizes Mayor Jordan to sign
the attached Land Lease Agreement with NCWPCS MPL 28 - Year Sites Tower Holdings, LLC, a subsidiary
of Crown Castle USA, Inc. for a wireless communications tower near the Township Water Tank for an initial
five year term in the amount of $1,750.00 per month for the first wireless communications provider, with
automatic extensions for three additional five year terms with rent escalating in the amount of 10% per renewal
term and with a revenue sharing provision for additional wireless communications providers.
City of Fayetteville, Arkansas Page 1 Printed on 3/6/2019
City of Fayetteville Staff Review Form
2019-0118
Legistar File ID
3/5/2019
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Tim Nyander 2/13/2019
Submitted By Submitted Date
Action Recommendation:
WATER SEWER (720)
Division / Department
Staff recommends the approval of a Land Lease Agreement with NCWPCS MPL 28 - YEAR SITES TOWER HOLDINGS
LLC, a subsidiary of Crown Castle USA Inc. for land space near the Township water tank.
N/A
Account Number
N/A
Project Number
Budgeted Item? NA
Does item have a cost? NA
Budget Adjustment Attached? NA
Purchase Order Number:
Change Order Number:
Original Contract Number:
Comments:
Budget Impact:
Current Budget
Funds Obligated
Current Balance
Item Cost
Budget Adjustment
Remaining Budget
Water and Sewer
Fund
N/A
Project Title
$ -
$
Previous Ordinance or Resolution #
Approval Date:
VZOdUJZ7
CITY OF
FAYETTEVILLE
W4W ARKANSAS
MEETING OF MARCH 5, 2019
TO: Mayor and City Council
THRU: Don Marr, Chief of Staff
Water & Sewer Committee
FROM: Tim Nyander, Utilities Director
DATE: February 13, 2019
CITY COUNCIL MEMO
SUBJECT: Land Lease Agreement with NCWPCS MPL 28 - YEAR SITES TOWER
HOLDINGS LLC, a subsidiary of Crown Castle USA Inc.
RECOMMENDATION:
Staff recommends the approval of a Land Lease Agreement with NCWPCS MPL 28 - YEAR
SITES TOWER HOLDINGS LLC, a subsidiary of Crown Castle USA Inc. ("Crown Castle") for
land space near the Township water tank.
BACKGROUND:
The original agreement for this land space near the Township water tank was between the City
and Telecorp Realty, LLC (later purchased by AT&T). The land space was used for an antenna
tower, building equipment cabinets, and communication equipment. Crown Castle purchased
the management and operation rights to this tower from AT&T in 2013. The lease expired
recently, so a new Land Lease Agreement was negotiated with Crown Castle.
DISCUSSION:
The proposed Land Lease Agreement with Crown Castle will include the land space for the
existing cell tower and equipment, as well as access and utility easements to the premises. For
the first term of five (5) years, the City will receive $1,750.00 monthly from Crown Castle. The
proposed lease will be automatically extended for three (3) additional five (5) year terms, with an
increase of ten percent (10%) per term.
BUDGET/STAFF IMPACT:
The lease will generate $1,750.00 per month in revenue for the Water and Sewer fund.
Attachments:
Land Lease Agreement
Mailing Address:
113 W. Mountain Street www.fayettevllle-ar.gov
Fayetteville, AR 72701
2/12/2019
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LAND LEASE
AGREEMENT
This Agreement, made this h, day of 20]3, between the CITY OF
FAYETTEVILLE, ARKANSAS, 113 W. Mountain Street, Fayetteville, AR 72701, hereinafter
designated FAYETTEVILLE, and NCWPCS MPL 28 - YEAR SITES TOWER HOLDINGS LLC
a Delaware limited liability company by CCATT LLC, a Delaware limited liability company, its
Attorney -in -Fact, c/o Crown Castle USA Inc., 2000 Corporate Drive, Canonsburg, PA 15317,
hereinafter designated as CROWN CASTLE. FAYETTEVILLE and CROWN CASTLE are at
times collectively referred to hereinafter as the "Parties".
1. PREMISES. FAYETTEVILLE hereby leases to CROWN CASTLE, a portion of that
certain parcel of property it owns known as the Township Water Tank site, referred to hereinafter as
the Township Water Tank site, located in Washington County, Arkansas, and described in Exhibit
"A" attached hereto (the "Land Space"), together with the non-exclusive but constant (24 hours per
day, 7 days a week) access and utility easement over, under, or along the existing utility and access
easement, said portion of the Land Space and necessary easement (hereinafter collectively referred
to as the "Premises") being substantially as described herein in Exhibit "B" attached hereto and
made a part hereof. CROWN CASTLE agrees not to block the access easement at any time and to
coordinate and cooperate with FAYETTEVILLE and all tenants in their use of and access to their
facilities.
2. SURVEY. FAYETTEVILLE also hereby grants to CROWN CASTLE, the right to
survey the site and the Premises. Fayetteville may also survey the site and provide such survey to
CROWN CASTLE. After review and acceptance of the survey by FAYETTEVILLE, the survey
shall then become Exhibit "C" which shall be attached hereto and made a part hereof and shall
control in the event of boundary and access discrepancies between it and Exhibit "B".
3. TERM. This Agreement shall be effective as of the date of execution by both parties,
and the and shall be in effect for a term of five (5) years. Rental payments shall commence on the
effective date and shall be due at a total monthly rental of One Thousand Seven Hundred Fifty
Dollars ($1,750.00) to be paid on the first day of the month, in advance, to FAYETTEVILLE.
4. EXTENSIONS. This Agreement shall automatically be extended for three (3)
additional five (5) year terms unless CROWN CASTLE terminates it at the end of the then current
term by giving FAYETTEVILLE written notice of its intent to terminate at least six (6) months prior
to the end of the then current term. FAYETTEVILLE may terminate this agreement at the end of
any term by giving CROWN CASTLE written notice of its intent to terminate at least two (2) years
prior to the end of the then current term. Any holdover period after termination of the agreement
shall be subject to the month-to-month provisions of Section 10 of this Agreement. CROWN
CASTLE shall have the right to terminate this Agreement at any time upon two (2) years' written
notice to FAYETTEVILLE in the event CROWN CASTLE determines that the Premises are not
appropriate for CROWN CASTLE's operations for economic, environmental, governmental or
1
technological reasons, including without limitation, permitting, zoning, signal strength, coverage or
interference.
5. EXTENSION RENTALS. The monthly rental for the first five year extension term
shall be increased by the amount of ten percent (10%); the monthly rental for the second five year
extension term shall be further increased by the amount of ten percent (10%); and the monthly rental
for the third five year extension term shall be further increased by the amount of ten percent (10%).
6. USE; GOVERNMENTAL APPROVALS_. CROWN CASTLE shall use the Premises
for the purpose of constructing, maintaining, repairing and operating a communications facility and
uses incidental thereto. Security measures may be placed around the communications facilities with
the approval of FAYETTEVILLE, (not including the access easement). All improvements,
equipment and conduits shall be at CROWN CASTLE's expense and the installation of all
improvements shall be at the discretion and option of CROWN CASTLE. CROWN CASTLE shall
have the right to replace, repair, or otherwise modify its equipment and/or conduits or any portion
thereof and the frequencies over which the equipment operates. It is understood and agreed that
CROWN CASTLE's ability to use the Premises is contingent upon its obtaining after the execution
date of this Agreement all of the certificates, permits and other approvals (collectively the
"Governmental Approvals") that may be required by any Federal, State or Local authorities as well
as satisfactory structural tests which will permit CROWN CASTLE use of the Premises as set forth
above. FAYETTEVILLE shall take no action which would adversely affect the status of the
Property with respect to the proposed use thereof by CROWN CASTLE. In the event that any of
such applications for such Governmental Approvals should be finally rejected; any Governmental
Approval issued to CROWN CASTLE is canceled, expires, lapses, or is otherwise withdrawn or
terminated by governmental authority CROWN CASTLE, shall have the right to terminate this
Agreement. Notice of CROWN CASTLE's exercise of its right to terminate shall be given to
FAYETTEVILLE in writing by certified mail, return receipt requested, and shall be effective upon
the mailing of such notice by CROWN CASTLE, or upon such later date as designated by CROWN
CASTLE. All rentals paid to said termination date shall be retained by FAYETTEVILLE. Upon
such termination, this Agreement shall be of no further force or effect except to the extent of the
representations, warranties and indemnities made by each party to the other hereunder. Otherwise,
CROWN CASTLE shall have no further obligations for the payment of rent to FAYETTEVILLE.
If this site becomes technologically unsuitable for CROWN CASTLE's purposes, CROWN
CASTLE may terminate this lease upon ninety days notice.
7. INSURANCE. CROWN CASTLE agrees that at its own cost and expense, it will
maintain commercial general liability insurance with limits not less than $1,000,000 for injury to
or death of one or more persons in any one occurrence and $500,000 for damage or destruction to
property in any one occurrence.
8. LIMITATION OF LIABILITY. In no event will either FAYETTEVILLE or
CROWN CASTLE be liable to the other, or any of their respective agents, representatives,
employees for any lost revenue, lost profits, loss of technology, rights or services, incidental,
punitive, indirect, special or consequential damages, loss of data, or loss or interruption of use of
service, under any theory of tort, strict liability or negligence.
2
9. INTERFERENCE. CROWN CASTLE agrees to install equipment of the type and
frequency which will not cause material interference which is measurable in accordance with then
existing industry standards to any equipment of FAYETTEVILLE or its lessees of the Property
which predated the original installation of CROWN CASTLE's equipment. In the event any after -
installed CROWN CASTLE's equipment causes such interference, and after FAYETTEVILLE
has notified CROWN CASTLE in writing of such interference, CROWN CASTLE will take all
commercially reasonable steps necessary to correct and eliminate the interference, including but
not limited to, at CROWN CASTLE's option, powering down such equipment and later powering
up such equipment for intermittent testing. In no event will FAYETTEVILLE be entitled to
terminate this Agreement or relocate the equipment as long as CROWN CASTLE is making a
good faith effort to remedy the interference issue. CROWN CASTLE agrees to indemnify and
hold Fayetteville harmless from any claim by other tenants that CROWN CASTLE's equipment
has damaged or interfered with their equipment or service to their customers, except to the extent
arising from the negligence or willful misconduct of FAYETTEVILLE. FAYETTEVILLE agrees
that it or other tenants of the Property who currently have or in the future take possession of the
Property will be permitted to install only such equipment that is of the type and frequency which
will not cause material interference which is measurable in accordance with then existing industry
standards to the then existing equipment of CROWN CASTLE.
10. REMOVAL AT END OF TERM. CROWN CASTLE shall, upon expiration of the
Term, or within ninety (90) days after any earlier termination of the Agreement, remove its
building(s), antenna structure(s) (except footings), equipment, fixtures and all personal property
to a depth of three (3) feet and restore the Premises to its original condition, reasonable wear and
tear and casualty damage excepted. FAYETTEVILLE agrees and acknowledges that all of the
equipment, conduits, fixtures and personal property of CROWN CASTLE shall remain the
personal property of CROWN CASTLE and CROWN CASTLE shall have the right to remove the
same at any time during the Term, whether or not said items are considered fixtures and
attachments to real property under applicable Laws. If such time for removal causes CROWN
CASTLE to remain on the Premises after termination of this Agreement, CROWN CASTLE shall
pay rent at the then existing monthly rate or on the existing monthly pro -rata basis if based upon a
longer payment term, until such time as the removal of the building, antenna structure, fixtures
and all personal property are completed. At the expiration of this Agreement FAYETTEVILLE
may, at its sole option, allow CROWN CASTLE to continue its tenancy on a month-to-month
basis for the then existing monthly rate or on the existing monthly pro -rata basis if based upon a
longer payment term. The month-to-month tenancy shall be terminated upon thirty days notice by
FAYETTEVILLE to CROWN CASTLE.
11. QUIET ENJOYMENT. FAYETTEVILLE covenants that CROWN CASTLE, on
paying the rent and performing the covenants herein, shall peaceably and quietly have, hold and
enjoy the Premises. FAYETTEVILLE agrees that this lease shall survive and remain in force if
FAYETTEVILLE sells or transfers any part of the Land Space.
12. TITLE. FAYETTEVILLE represents and warrants to CROWN CASTLE as of the
execution date of this Agreement, and covenants during the Term that FAYETTEVILLE is seized
3
of good and sufficient title and interest to the Property and has full authority to enter into and
execute this Agreement and that there are no covenants, easement or restrictions which prevent or
adversely affect the use of occupancy of the Premises by CROWN CASTLE as set forth above.
13. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between FAYETTEVILLE and CROWN CASTLE and
that no verbal or oral agreements, promises or understandings shall be binding upon either
FAYETTEVILLE or CROWN CASTLE. In the event any provision of the Agreement is found
to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the
remaining provisions of this Agreement. The failure of either Party to insist upon strict
performance of any of the terms or conditions of this Agreement or to exercise any of its rights
under the Agreement shall not waive such rights and such Party shall have the right to enforce
such rights at any time and take such action as may be lawful and authorized under this Agreement,
in law or in equity.
14. GOVERNING LAW. This Agreement and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of Arkansas and venue shall be in
Washington County, Arkansas.
15. ASSIGNMENT. This Agreement may be sold, assigned or transferred by CROWN
CASTLE without any approval or consent of FAYETTEVILLE to CROWN CASTLE's principal,
affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of
CROWN CASTLE's assets in the market defined by the Federal Communications Commission in
which the Property is located by reason of a merger, acquisition or other business reorganization.
As to other parties, this Agreement may not be sold, assigned or transferred without the written
consent of FAYETTEVILLE, which such consent will not be unreasonably withheld or delayed.
No change of stock ownership or control of CROWN CASTLE shall constitute an assignment
hereunder. CROWN CASTLE may Sublease any portion of the Property at its sole discretion
upon notice to FAYETTEVILLE. Any Sublease that is entered into by CROWN CASTLE shall
be subject to the provisions of this Agreement and shall be binding upon the successors, assigns,
heirs and legal representatives of the respective parties hereto. The term "Sublease", "Sublet",
"Sublessee" and any other similar term shall apply to any situation by which CROWN CASTLE
allows a third party use of the Property for co -location, whether it be by formal sublease, license
or other agreement. All rights and responsibilities of CROWN CASTLE set forth in this
Agreement shall be enjoyed by and binding on any Sublessee or Assignee.
(a) In the event CROWN CASTLE Subleases any portion of the Property, in accordance
with this Agreement, any rental paid by any Sublessee(s) shall be divided between
FAYETTEVILLE and CROWN CASTLE in the following manner: (i) The first cell phone
carrier's antenna array (also known as the anchor tenant) is paid for by the monthly rent charged
to CROWN CASTLE pursuant to this Land Lease Agreement; (ii) The rental actually received by
CROWN CASTLE (excluding any reimbursement of taxes, construction costs, installation costs,
revenue share reimbursement or other expenses incurred by CROWN CASTLE) from the existing
Sublessee Sprint/Nextel shall be divided with 75% of the revenue going to CROWN CASTLE and
25% to FAYETTEVILLE; and (iii) The rental actually received by CROWN CASTLE (excluding
4
any reimbursement of taxes, construction costs, installation costs, revenue share reimbursement or
other expenses incurred by CROWN CASTLE ) from any unaffiliated third party Sublessees not
already a Sublessee on the Property (each a "Future Sublessee") shall be divided with 50% of the
revenue going to CROWN CASTLE and 50% to FAYETTEVILLE. Sprint/Nextel and any Future
Sublessee shall be instructed to pay the foregoing percentage amounts directly to CROWN
CASTLE. CROWN CASTLE shall be responsible to Fayetteville for the collection or payment of
rents by Sprint/Nextel and any Future Sublessee and their remittance to FAYETTEVILLE within
thirty (30) days after receipt of said payments by CROWN CASTLE. However, CROWN
CASTLE shall have no liability to FAYETTEVILLE in the event of failure of payment by
Sprint/Nextel or any Future Sublessee. In this event, CROWN CASTLE shall have no liability of
any nature to FAYETTEVILLE for failure to Sublet all or any part of the premises to Sprint/Nextel
or any or all potential Future Sublessee(s). Once per calendar year, FAYETTEVILLE may submit
a written request to CROWN CASTLE for a business summary report pertaining to CROWN
CASTLE's payment obligations for the prior twelve (12) month period, and CROWN CASTLE
shall provide such written accounting to FAYETTEVILLE within sixty (60) days after CROWN
CASTLE's receipt of such written request. Notwithstanding anything in this paragraph to the
contrary, the parties agree and acknowledge that revenue derived from AT&T and any successors
and/or assignees of AT&T, as long as continually operates as the anchor tenant, shall be expressly
excluded from the payments to FAYETTEVILLE set forth in this paragraph, and
FAYETTEVILLE shall have no right to receive any portion of such revenue.
(b) Notwithstanding any other provision of this Agreement, CROWN CASTLE shall not
be required to obtain approval from FAYETTEVILLE for the Subletting of the Property or part
thereof. CROWN CASTLE shall have the sole right to determine whether it will Sublet any
portion of the Property or whether it will Sublease to any specific Sublessee.
16. NOTICES. All notices hereunder must be in writing and shall be sent by certified
mail, return receipt requested or by commercial courier, provided the courier's regular business is
delivery service and provided further that it guarantees delivery to the addressee by the end of the
next business day following the courier's receipt from the sender, addressed as follows (or any
other address that the Party to be notified may have designated to the sender by like notice):
CITY OF FAYETTEVILLE: CITY OF FAYETTEVILLE
Office of the Mayor
113 W. Mountain Street
Fayetteville, AR 72701
CROWN CASTLE: NCWPCS MPL 28 - Year Sites
Tower Holdings LLC
Legal Department
Attn: Network Legal
208 S. Akard Street
Dallas, TX 75202-4206
With copy to:
CCATT LLC
c/o Crown Castle USA Inc.
2000 Corporate Drive
Canonsburg, PA 15317
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing.
17. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal
representative, successors and assigns of the Parties hereto.
18. DEFAULT.
(a) In the event there is a breach by CROWN CASTLE with respect to any of the
provisions of this Agreement or its obligations under it, including the payment of rent,
FAYETTEVILLE shall give CROWN CASTLE written notice of such breach. After receipt of
such written notice, CROWN CASTLE shall have fifteen (15) days in which to cure any monetary
breach and thirty (30) days in which to cure any non -monetary breach, provided CROWN
CASTLE shall have such extended period as may be required beyond the thirty (30) days if the
nature of the cure is such that it reasonably requires more than thirty (30) days and CROWN
CASTLE commences the cure within the thirty (30) day period and thereafter continuously and
diligently pursues the cure to completion. FAYETTEVILLE may not maintain any action or effect
any remedies for default against CROWN CASTLE unless and until CROWN CASTLE has failed
to cure the breach within the time periods provided in this Paragraph. However, more than three
(3) separate breaches within a twelve (12) month period relating to blocking or interfering with
the access easement or the rights of other tenants to successfully operate their equipment without
electronic or other interference shall give FAYETTEVILLE the right to terminate this contract
even if such breaches are temporary and cured within thirty days.
(b) In the event there is a breach by FAYETTEVILLE with respect to any of the provisions
of this Agreement or its obligations under it, CROWN CASTLE shall give FAYETTEVILLE
written notice of such breach. After receipt of such written notice, FAYETTEVILLE shall have
thirty (30) days in which to cure any such breach, provided FAYETTEVILLE shall have such
extended period as may be required beyond the thirty (30) days if the nature of the cure is such
that it reasonably requires more than thirty (30) days and FAYETTEVILLE commences the cure
within the thirty (30) day period and thereafter continuously and diligently pursues the cure to
completion. CROWN CASTLE may not maintain any action or effect any remedies for default
against FAYETTEVILLE unless and until FAYETTEVILLE has failed to cure the breach within
the time periods provided in this Paragraph. Notwithstanding the foregoing to the contrary, it shall
be a default under this Agreement if FAYETTEVILLE fails, within five (5) days after receipt of
written notice of such breach, to perform an obligation required to be performed by
FAYETTEVILLE if the failure to perform such an obligation interferes with CROWN CASTLE's
ability to conduct its business on the Property; provided, however, that if the nature of
FAYETTEVILLE's obligation is such that more than five (5) days after such notice is reasonably
6
required for its performance, then it shall not be a default under this Agreement if performance is
commenced within such five (5) day period and thereafter diligently pursued to completion.
19. REMEDIES. Upon a default, the non -defaulting party may at its option (but without
obligation to do so), perform the defaulting party's duty or obligation on the defaulting party's
behalf. The costs and expenses of any such performance by the non -defaulting party shall be due
and payable by the defaulting party upon invoice therefor. In the event of a default by either party
with respect to a material provision of this Agreement, without limiting the non -defaulting party
in the exercise of any right or remedy which the non -defaulting may have by reason of such default,
the non -defaulting party may terminate the Agreement and/or pursue any remedy now or hereafter
available to the non -defaulting party under the laws or judicial decisions of the state in which the
Premises are located; provided, however, FAYETTEVILLE and CROWN CASTLE shall use
reasonable efforts to mitigate any damages in connection with a default by FAYETTEVILLE or
CROWN CASTLE. If CROWN CASTLE so performs any of FAYETTEVILLE's obligations
hereunder, the full amount of the reasonable and actual cost and expense incurred by CROWN
CASTLE shall immediately be owing by FAYETTEVILLE to CROWN CASTLE, and
FAYETTEVILLE shall pay to CROWN CASTLE upon demand the full undisputed amount
thereof with interest thereon from the date of payment at the highest rate permitted by applicable
Laws. Notwithstanding the foregoing, if FAYETTEVILLE does not pay CROWN CASTLE the
full undisputed amount within thirty (30) days of its receipt of an invoice setting forth the amount
due from CROWN CASTLE, CROWN CASTLE may offset the full undisputed amount, including
all accrued interest, due against all fees due and owing to FAYETTEVILLE until the full
undisputed amount, including all accrued interest, is fully reimbursed to CROWN CASTLE.
20. CASUALTY. In the event of damage by fire or other casualty to the Premises that
cannot reasonably be expected to be repaired within forty-five (45) days following the event,
CROWN CASTLE may terminate this by sending written notice to FAYETTEVILLE. Any such
notice of termination shall cause this Agreement to expire with the same force and effect as though
the date set forth in such notice were the date originally set as the expiration date of this Agreement
and the Parties shall make an appropriate adjustment, as of such termination date, with respect to
payments due to the other under this Agreement. Notwithstanding the foregoing, the rent shall
abate during the period of repair following such fire or other casualty in proportion to the degree
to which CROWN CASTLE's use of the Premises is impaired.
21. CONDEMNATION. If FAYETTEVILLE receives written or other notice of a
proposed taking by eminent domain of any part of the parcel of land upon which the Premises is
situated, FAYETTEVILLE will notify CROWN CASTLE of the proposed taking within five (5)
days of receiving said notice. In the event of any condemnation of all or any portion of the
Property, this Agreement shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever occurs first. If as a result of a partial condemnation
of the Premises or Property, CROWN CASTLE, in CROWN CASTLE's sole discretion, is unable
to use the Premises for the purposes intended hereunder, or if such condemnation may reasonably
be expected to disrupt CROWN CASTLE's operations at the Premises for more than forty-five
(45) days, CROWN CASTLE may, at CROWN CASTLE's option, to be exercised in writing
within fifteen (15) days after FAYETTEVILLE shall have given CROWN CASTLE written notice
of such taking (or in the absence of such notice, within fifteen (15) days after the condemning
authority shall have taken possession) terminate this Agreement as of the date the condemning
authority takes such possession. CROWN CASTLE may on its own behalf make a claim in any
condemnation proceeding involving the Premises. Any such notice of termination shall cause this
Agreement to expire with the same force and effect as though the date set forth in such notice were
the date originally set as the expiration date of this Agreement and the Parties shall make an
appropriate adjustment as of such termination date with respect to payments due to the other under
this Agreement. If CROWN CASTLE does not terminate this Agreement in accordance with the
foregoing, this Agreement shall remain in full force and effect as to the portion of the Premises
remaining, except that the rent shall be reduced in the same proportion as the rentable area of the
Premises taken bears to the total rentable area of the Premises. In the event that this Agreement is
not terminated by reason of such condemnation, CROWN CASTLE shall promptly repair any
damage to the Premises caused by such condemning authority.
22. SUBMISSION OF AGREEMENT/PARTIAL INVALIDITY/AUTHORITY. The
submission of this Agreement for examination does not constitute an offer to lease the Premises
and this Agreement becomes effective only upon the full execution of this Agreement by the
Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and
shall not invalidate the remaining provisions of this Agreement. Each of the Parties hereto warrants
to the other that the person or persons executing this Agreement on behalf of such Party has the
full right, power and authority to enter into and execute this Agreement on such Party's behalf and
that no consent from any other person or entity is necessary as a condition precedent to the legal
effect of this Agreement.
23. APPLICABLE LAWS. CROWN CASTLE shall, in respect to the condition of the
Premises and at CROWN CASTLE's sole cost and expense, comply with (a) all Laws relating
solely to CROWN CASTLE's specific and unique nature of use of the Premises; and (b) all
building codes requiring modifications to the Premises due to the improvements being made by
CROWN CASTLE in the Premises.
24. SURVIVAL. Any provisions of this Agreement which require performance
subsequent to the termination or expiration of this Agreement shall also survive such termination
or expiration.
25. CAPTIONS_. The captions contained in this Agreement are inserted for convenience
only and are not intended to be part of the Agreement. They shall not affect or be utilized in the
construction or interpretation of the Agreement.
26. IRS FORM W-9. FAYETTEVILLE agrees to provide CROWN CASTLE with a
completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other
times as may be reasonably requested by CROWN CASTLE. In the event the Premises is
transferred, the succeeding landlord shall have a duty at the time of such transfer to provide
CROWN CASTLE with a completed IRS Form W-9, or its equivalent, and other related paperwork
to effect a transfer in the rent to the new landlord. .
8
27. Original Agreement. FAYETTEVILLE and CROWN CASTLE are parties to that
certain Site Lease Agreement dated October 26, 1998, by and between FAYETTEVILLE as lessor
and CROWN CASTLE's predecessor in interest, Telecorp Realty, L.L.C. as lessee, (the "Original
Agreement"). The Original Agreement is hereby amended by deleting it in its entirety and
restating the Original Agreement as provided for in this Agreement upon the full execution of this
Agreement.
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective
seals the day and year first above written.
NCWPCS MPL 28 - YEAR SITES
TOWER HOLDINGS LLC,
a Delaware limited liability company
By: CCATT LLC,
a Delaware limited liability company,
Its: Attorney in Fact
By: `
NAME
Title: Lisa A. Sedgwick
Senior Transaction Manager
CROWN CASTLE Legal Approval
CITY OF FAYETTEVILLE
ATTEST:
`�' ���►
By: • '■
SONDRA E. SMITH
City Clerk -Treasurer 5: �E �`� E'
co
EXHIBIT "A"
LAND SITE DESCRIPTION
PARENT PARCEL DESCRIPTION
A PART OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION
35, TOWNSHIP 17 NORTH, RANGE 30 WEST, DESCRIBED AS FOLLOWS: BEGINNING
AT A POINT WHICH IS 594 FEET EAST AND 300 FEET NORTH OF THE SOUTHWEST
CORNER OF SAID 40 -ACRE TRACT, AND RUNNING, THENCE EAST 101'; THENCE
NORTH 525'; THENCE WEST 101'; THENCE SOUTH 525' TO THE POINT OF
BEGINNING; CONTAINING 1.22 ACRES, MORE OR LESS.
COMPOUND PARCEL DESCRIPTION
A PART OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION
35, TOWNSHIP 17 NORTH, RANGE 30 WEST, WASHINGTON COUNTY, ARKANSAS,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF
THE SOUTHEAST QUARTER OF SECTION 35 AFORESAID; THENCE SOUTH 87'38'14"
EAST, ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER, A DISTANCE OF 594.31 TO A POINT; THENCE NORTH
02013'58" EAST, DEPARTING FROM SAID SOUTH LINE, A DISTANCE OF 400.00 FEET
TO A POINT; THENCE NORTH 75005'57" EAST, A DISTANCE OF 71.69 FEET TO THE
POINT OF BEGINNING; THENCE NORTH 49°50'43" WEST, A DISTANCE OF 38.32 FEET
TO A POINT; THENCE SOUTH 45°24'08" WEST, A DISTANCE OF 8.91 FEET TO A POINT;
THENCE NORTH 46004'16" WEST, A DISTANCE OF 26.78 FEET TO A POINT; THENCE
NORTH 13041'35" EAST, A DISTANCE OF 31.49 FEET TO A POINT; THENCE NORTH
31018'25" WEST, A DISTANCE OF 8.22 FEET TO A POINT; THENCE NORTH 11052'56"
EAST, A DISTANCE OF 48.34 FEET TO A POINT; THENCE SOUTH 87004'27" EAST, A
DISTANCE OF 39.97 FEET TO A POINT; THENCE SOUTH 24029'01" EAST, A DISTANCE
OF 28.41 FEET TO A POINT; THENCE SOUTH 11 ° 10'07" WEST, A DISTANCE OF 32.19
FEET TO A POINT; THENCE SOUTH 47004'22" EAST, A DISTANCE OF 38.53 FEET TO A
POINT; THENCE SOUTH 40°43'35" WEST, A DISTANCE OF 47.87 FEET TO A POINT;
THENCE NORTH 87038'14" WEST, A DISTANCE OF 0.66 FEET TO THE POINT OF
BEGINNING.
CONTAINING IN ALL 6,457 SQ. FT. OR 0.15 ACRES, MORE OR LESS.
SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS AND RIGHTS-OF-WAY
OF RECORD.
10
EXHIBIT "B"
PREMISES DESCRIPTION
LEASE PARCEL DESCRIPTION
A PART OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION
35, TOWNSHIP 17 NORTH, RANGE 30 WEST, WASHINGTON COUNTY, ARKANSAS,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SECTION 35 AFORESAID; THENCE SOUTH 87'38'14" EAST,
ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER, A DISTANCE OF 594.31 TO A POINT; THENCE NORTH 02°13'58" EAST,
DEPARTING FROM SAID SOUTH LINE, A DISTANCE OF 400.00 FEET TO A POINT;
THENCE NORTH 75005'57" EAST, A DISTANCE OF 71.69 FEET TO THE POINT OF
BEGINNING; THENCE NORTH 49°50'43" WEST, A DISTANCE OF 38.32 FEET TO A POINT;
THENCE SOUTH 45024'08" WEST, A DISTANCE OF 8.91 FEET TO A POINT; THENCE
NORTH 46004'16" WEST, A DISTANCE OF 9.33 FEET TO A POINT; THENCE NORTH
40°43'35" EAST, A DISTANCE OF 58.89 FEET TO A POINT; THENCE SOUTH 47°04'22"
EAST, A DISTANCE OF 48.92 FEET TO A POINT; THENCE SOUTH 40043'35" WEST, A
DISTANCE OF 47.87 FEET TO A POINT; THENCE NORTH 87038'14" WEST, A DISTANCE
OF 0.66 FEET TO THE POINT OF BEGINNING.
CONTAINING IN ALL 2,500 SQ. FT. OR 0.06 ACRES, MORE OR LESS.
SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS AND RIGHTS-OF-WAY OF
RECORD.
ACCESS EASEMENT #1
A PART OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE
1/4) OF SECTION THIRTY-FIVE (35), TOWNSHIP SEVENTEEN (17) NORTH, RANGE
THIRTY (30) WEST, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID 40 ACRE TRACT; THENCE
S89035'37"E 474.50 FEET TO THE TRUE POINT OF BEGINNING AND FROM WHICH AN
EXISTING REFERENCE IRON BEARS N00044'28"E 20.10 FEET; THENCE N00°44'28"E
300.00 FEET TO A SET IRON; THENCE S89°35'37"E 119.50 FEET TO AN EXISTING IRON
PIPE; THENCE S00°44'28"W 300.00 FEET TO A POINT FROM WHICH AN EXISTING
REFERENCE IRON BEARS N00044'28"E 20.10 FEET; THENCE N89°35'37"W 119.50 FEET TO
THE POINT OF BEGINNING, CONTAINING 0.82 ACRES, MORE OR LESS, WASHINGTON
COUNTY, ARKANSAS.
THE ABOVE DESCRIBED 0.82 ACRE TRACT BEING SUBJECT TO THE RIGHT-OF-WAY
OF TOWNSHIP ROAD OVER AND ACROSS THE SOUTH TWENTY-FIVE (25) FEET
THEREOF. THE ABOVE DESCRIBED 0.82 ACRE TRACT ALSO BEING SUBJECT TO AN
ACCESS EASEMENT, SAID EASEMENT BEING TWENTY-FIVE (25) FEET OF EQUAL
11
AND UNIFORM WIDTH AND LYING EAST OF AND BEING PARALLEL WITH AND
ADJACENT TO THE WEST LINE OF SAID 0.82 ACRE TRACT.
ACCESS EASEMENT #2
A PERMANENT EASEMENT OF 25 FEET IN WIDTH BEING A PART OF THE FOLLOWING
TRACT: A PART OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 35, TOWNSHIP 17 NORTH, RANGE 30 WEST, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH IS 474 AND 1/2 FEET EAST OF THE SOUTHWEST
CORNER OF SAID 40 ACRE TRACT AND RUNNING THENCE EAST 119 AND 1/2 FEET;
THENCE NORTH 825 FEET; THENCE WEST 119 AND 1/2 FEET; THENCE SOUTH 825 FEET
TO THE POINT OF BEGINNING CONTAINING 2.25 ACRES, MORE OR LESS, EXCEPT A
STRIP 25 FEET WIDE OFF OF THE SOUTH END OF SAID TRACT NOW USED FOR PUBLIC
ROAD.
ACCESS EASEMENT #3
AN EASEMENT FOR ACCESS PURPOSES, BEING 25.0 FEET IN WIDTH AND LYING IN A
PART OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 35,
TOWNSHIP 17 NORTH, RANGE 30 WEST, WASHINGTON COUNTY, ARKANSAS, BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SECTION 35 AFORESAID; THENCE SOUTH 87'38'14" EAST,
ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER, A DISTANCE OF 594.31 TO A POINT; THENCE NORTH 02°13'58" EAST,
DEPARTING FROM SAID SOUTH LINE, A DISTANCE OF 408.44 FEET TO THE POINT OF
BEGINNING; THENCE CONTINUE NORTH 02°13'58" EAST, A DISTANCE OF 34.73 FEET
TO A POINT; THEN NORTH 48°16'44" EAST, A DISTANCE OF 17.73 FEET TO A POINT;
THENCE SOUTH 46004'16" EAST, A DISTANCE OF 25.07 FEET TO A POINT; THENCE
SOUTH 48016'44" WEST, A DISTANCE OF 43.74 FEET TO THE POINT OF BEGINNING.
CONTAINING IN ALL 768 SQ. FT. OR 0.02 ACRES, MORE OR LESS.
SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS AND RIGHTS-OF-WAY OF
RECORD.
12
EXHIBIT "C"
SURVEY OF PREMISES
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14
EXHIBIT "D"
SCHEDULE OF EQUIPMENT
• Monopole
Power Supply
■ Antennas (Quantity)
o APXVSPP18-C (3 total)
o TTTT65AP-1XR (3 total)
o DBXLH-8585A-R2M (6 total)
o SBNHH-1D65B (7 total)
o SBJAH4-ID65B-DL (6 total)
• 23 Feedlines
15