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RESOLUTION NO. 8,477
A RESOLUTION AUTHORIZING THE CITY MANAGER
TO EXECUTE A LAND LEASE AGREffiffiiT WITH DELTIC
FARM & TIMBER COMPANY, INC. FOR THE SITING OF
A RADIO TRANSMITTER TOWER.
159
WHEREAS, the installation of the City's new 850 Mhz trunked
radio system will require construction of an additional
receiver - repeater tower to the west; and
WHEREAS, a location on Shinall Mountain owned by Deltic
Farm and Timber Company, Inc., has been determined by an
engineering analysis to offer the ideal siting for this structure.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
THE CITY OF LITTLE ROCK, ARKANSAS:
SECTION 1: The City Manager is hereby authorized to
execute a land lease agreement with Deltic Farm & Timber Company,
Inc. for the siting of a radio transmitter tower under the terms
and conditions negotiated by the parties in substantially the same
form as the attached exhibit.
ADOPTED: April 2, 1991
ATTEST:
W � 1.��.r _ )
APPROVED ROBBIE HANCOCK, CITY CLERK
TO FORM:
THOMAS M. CARPENTER U
ACTING CITY ATTORNEY
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• LEASE p
160
THIS AGREEMENT, effective the day of 1991 by
and between DELTIC FARM d TIMBER CO., INC., ( "LESSOR "), an Arkansas
corporation, with its principal place of business at 200 East Peach ,
Street, E1 Dorado, Arkansas 71730, and the CITY OF LITTLE ROCK, ARKANSAS,
( "LESSEE ").
W I T N E S S E T H
1.
PREMISES LEASED. Lessor does hereby lease and permit Lessee to enter
upon, use and occupy for the sole purpose and on the conditions herein set
forth, the property described on Exhibit "A" attached hereto and made a
part hereof, situated in the County of Pulaski, State of Arkansas, but
reserving unto the Lessor, its successors and assigns all oil, gas and
other minerals in, on and under said lands.
The above described lands are herein referred to as "The Demised
Premises."
2.
TERM. The term of this Agreement shall be for a term of fifteen (15)
years unless cancelled or terminated as provided herein. This agreement
may be extended by mutual agreement between the parties.
3.
RENTAL. Lessee shall pay to Lessor an annual advance base rental as
follows, unless cancelled or terminated as provided herein:
First five -year term: $10,000.00
Second five -year term: $15,000.00
Third five -year term: $15,000.00, or an amount equal to $15,000.00
plus the Consumer Price Increase for the prior five -year period whichever
is greater.
The "CPI increase" means an amount determined by multiplying the
percentage cost of living increase for the designated five year period by
the annual rental for the preceding five year period. Said percentage
shall be determined by use of the consumer price index (CPI for All Urban
Consumers, All Items, Unadjusted) which is published monthly by the U. S.
Department of Labor or its successors. Should the publication of such
index be discontinued by the U. S. Department Of Labor, then such other
index as may be published by said Department that most nearly approximates
said discontinued index shall be used in making the adjustments hereunder.
Rental payments must be received by Lessor on or before each and every
anniversary date of this lease.
4.
SURVEY. Within thirty (30) days after the compretion of any
improvements on The Demised Premises, Lessee will provide Lessor with an
as -built survey from a registered land surveyor showing the location of
all improvements erected or placed on The Demised Premises.
5.
LAWS AND REGULATIONS. Lessee agrees to comply with any and all
ordinances, regulations, and laws pertaining to the operation of its
business on The Demised Premises. Lessee further covenants and agrees to
keep all improvements situated on The Demised Premises, including the
tower, in compliance with all rules and regulations of the Federal
Communications Commission and the Federal Aviation Administration as well
as their successor organizations.
Lessee further agrees that it will not use The Demised Premises for
storage or placement of amy dangerous or hazardous substances or any
substances or property which would create a hazard or nuisance to the
surrounding area.
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LEASE — PAGE TWO
6.
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USE OF THE PREMISES. Lessee shall use The Demised Premises only for
the installation and operation of a radio transmitter tower and a building
sufficient to hold Lessee's transmitter equipment. Such use is further
limited to the following political subdivisions and agencies created by
such political subdivisions: Pulaski County, Arkansas and municipalities
located within Pulaski County, Arkansas.
Lessee, its employees or agents, shall have the right to use The
Demised Premises only for the purposes expressed herein and for the use of
the political subdivisions enumerated above and shall not have the right
to permit others, either directly or indirectly, to use The Demised
Premises or to use its tower or facilities for any purpose without having
obtained the prior written consent of Lessor. Lessor reserves the right
to continue to use The Demised Premises so long as such right does not
unreasonably interfere with the specific rights granted Lessee herein.
7.
WARRANTY. This Lease is made without any warranty, either express or
implied, as to merchantability or fitness or use of the premises for the
business which Lessee wishes to conduct thereof. Furthermore, this Lease
is made without warranty of title, either express or implied.
8.
TAXES. Lessor shall not be liable for taxes occurring by the
installation and /or placing of improvements on The Demised Premises,
except improvements placed thereon by Lessor.
All
LIENS. Lessee shall keep all of The Demised Premises and every part
thereof and all improvements at any time located thereon free and clear of
any and all mechanics' and materialmen's liens for or arising out of or in
connection with work or labor done on The Demised Premises, services
performed, or materials furnished for or in connection with the
installation of the tower and other improvements by Lessee, as well as
liens for labor performed or materials used in connection with any
alteration, improvement, or repairs or addition which Lessee may make or
permit or cause to be made, on or about the premises, and at all times
promptly and fully to pay and discharge any and all claims for labor or
materials on which any such lien may or could be based, and to indemnify
Lessor and all of the premises and all improvements thereon against all
such liens and claims of liens, suits or other proceedings. If Lessee
desires to contest any such lien it shall notify Lessor of its intention
to do so within thirty (30) days after the filing of such lien. In such
case, and provided that Lessee shall on demand protect Lessor by a good
and sufficient surety bond (or other evidence of financial responsibility
acceptable to Lessor) against any such lien and any cost, liability, or
damage arising out of such contest, Lessee shall not be in default
hereunder until twenty (20) days after the final determination of the
validity thereof, within which time Lessee shall satisfy and discharge
such lien to the extent held valid; but the satisfaction and discharge of
any such lien shall not-, in any case, be delayed until execution is had on
any judgment rendered thereon, and such delay shall be a default of Lessee
hereunder. In the event of any such contest, Lessee shall protect and
indemnify Lessor against all loss, expense, and damage resulting
therefrom. The foregoing relates solely to mechanics' and materialmen's
liens, and nothing in this Lease shall be construed to prevent Lessee from
financing the tower and other improvements or any part thereof, and Lessor
specifically grants to Lessee the right to encumber the tower and
improvements with liens and security interests subject always to the
provisions of this Lease.
� .1 " " � (
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LEASE - PAGE THREE
10.
ASSIGNMENT. Lessee shall not assign or sublet this Lease, either in
whole or in part, without the prior written consent of the Lessor.
11.
DEFAULT. Lessor may elect to terminate this Lease upon the default
by Lessee of any term or condition hereof on giving ten (10) days written
notice to Lessee of the intention to terminate as follows:
(a) Lessor shall give ten (10) days written notice to Lessee of
the default by Lessee of any term or condition and if default
has not been corrected within ten (10) days thereafter, this
Lease shall terminate at the option of Lessor unless otherwise
provided herein.
(b) The adjudication of Lessee as a bankrupt, or the initiation of
bankruptcy proceedings by Lessee or its creditors without a
subsequent dismissal thereof within 120 days, shall terminate
this Lease at the option of Lessor.
(c) The assignment or sublease by Lessee contrary to Paragraph
No. 10 shall terminate this Lease at the option of Lessor.
(d) The failure to pay any payment after being due shall be a
default by Lessee and if not corrected within twenty (20) days
thereafter, the Lease shall terminate at the option of Lessor.
12.
PARTIES. This Lease and all its provisions hereof shall be
applicable to and binding upon the parties, their respective successors
and assigns.
13.
INDEMNIFICATION AND HOLD HARMLESS. Lessee hereby expressly assumes
full responsibility for all loss, damage, injury and death to persons and
property on The Demised Premises during the term of this Lease and agrees
and covenants to hold Lessor, its agents, employees, contractors,
successors and assigns harmless from any such claim or claims arising on
The Demised Premises caused by Lessee, its agents, employees, contractors,
successors and assigns. In addition, Lessee agrees to indemnify Lessor,
its agents, employees, contractors, successors and assigns for any and all
liability, loss or damage Lessor, its agents, employees, contractors,
successors and assigns may suffer as a result of claims, demands, costs or
judgments arising out of Lessee's operations hereunder. Such
indemnification shall include the reimbursement to Lessor, its agents,
employees, contractors, successors and assigns for attorneys' fees
incurred by Lessor, its agents, employees, contractors, successors and
assigns in connection with the defense of any action covered by this
indemnification.
14.
REMOVAL OF IMPROVEMENTS. Upon termination of this Lease, whether by
expiration, cancellation, forfeiture or otherwise, Lessee shall have the
right to remove from The Demised Premises all improvements installed,
placed or erected on The Demised Premises by Lessee, and the parties agree
that a tower or any part thereof may be removed without damage to The
Demised Premises, and that such tower shall be considered personal
property and shall not become a part of the realty. Lessee shall have one
hundred twenty (120) days after termination of this Lease within which to
dismantle and remove the tower and other improvements. After the
aforementioned period all improvements not removed by Lessee shall become
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LEASE - PAGE FOUR
the property of Lessor. Lessee shall pay to Lessor in advance a monthly
rental equal to 1/12 of the last annual lease payment for each month or
any part thereof used by Lessee to remove and /or attempt to remove
improvements on The Demised Premises. Cost of removal of improvements
shall be borne by Lessee. Lessor, at its option, upon termination of this
Lease, may require Lessee to remove any or all improvements installed,
Placed or erected on The Demised Premises or pay the cost of such removal.
Lessee shall return the surface of The Demised Premises to its original
condition or as near thereto as practical.
15.
WAIVER. No waiver by Lessor or failure by it to require strict and
punctual performance by Lessee of any of the terms, conditions, provisions
or obligations of this Lease, or any other forbearance, sufferance, or
indulgence, however long continued or under whatsoever conditions, shall
constitute a waiver by Lessor of the right at any subsequent time to
strict, full and punctual performance of Lessee's obligations hereunder.
16.
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INSURANCE. The Lessee shall, at its cost and expense, take out and
maintain during the term of this Lease not less than the following
insurance coverage: Comprehensive General Liability Insurance against
claims for personal injury, including death, and against claims for damage
to property. The policy shall be written to include the Lessor as an
additional insured. Not less than the following limit shall be provided:
$2,000,000 per occurrence for personal injury and property damage
liability. The policy shall be written by a reputable company approved by
Lessor and shall provide a thirty (30) day written notice to Lessor of
cancellation or change in coverage. All policies shall include a waiver
of subrogation against Lessor and include coverage for contractual
liability to specifically include the hold harmless and indemnification
provisions under Paragraph 13 of this Lease. Lessee shall furnish
certificates of insurance or other evidence satisfactory to Lessor of
compliance by Lessee with the provisions hereof at the execution of this
Lease.
The insurance coverage limits set out above shall be subject to
increase prior to the beginning of The Second Five Year Term and Third
Five Year Term of this lease provided that Lessor has requested such
increase by notice to Lessee at least thirty (30) days prior to such date.
Upon such request the parties shall attempt to agree for such Five Year
Term on reasonable and adequate limits for the nature of the risk. If
after a request for increase, the parties are unable to agree on
reasonable and adequate limits within thirty (30) days following the
beginning date of such Five Year Term the insurance coverage limits will
be determined by arbitration as provided under Paragraph 27 of this Lease.
17,
SEVERABILITY. Each Paragraph of this Lease Agreement is severable
from all other Paragraphs. In the event any court of competent
jurisdiction determines that any Paragraph or subparagraph is invalid or
unenforceable for any reason, all remaining Paragraphs will remain in full
force and effect..
18.
INTERPRETATION. This Lease shall be interpreted according to and
enforced under the laws of the State of Arkansas.
LEASE - PAGE FIVE
19.
ENTIRE AGREEMENT. This Lease Agreement contains the entire Agreement
of both parties hereto, and no other oral or prior written agreement shall
be binding on the parties hereto. This Lease supersedes all prior
agreements, contracts and misunderstandings of any kind between the
parties relating to the subject matter hereof. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
insttument.
20.
HOLDOVER. Lessee hereby agrees that upon the termination of this
Lease for whatsoever reason, Lessee will peaceably deliver possession of
the leased premises to Lessor. In the event Lessee shall be permitted by
Lessor to hold over after the expiration or termination of this Lease, any
holding over (in the absence of any written agreement to the contrary)
shall be construed as a tenancy from month to month at a monthly rental
due in advance equal to one - twelfth that due for the last year paid under
this Lease. Such tenancy may be terminated by written notice from either
party to the other party on or before the date on which the payment of
rental is due for each month.
21.
INTEREST ON ARREARS. Lessee shall pay to Lessor on demand interest
at the maximum rate allowed by the laws of the State of Arkansas, on the
amount of any payment not made when due hereunder from the date due hereof
until payment is received by Lessor.
22.
NOTICES. All demands, notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when
personally delivered or when deposited in the United States mail,
certified mail, postage prepaid, addressed as follows:
"LESSOR" Deltic Farm 6 Timber Co., Inc.
Attn: Land Manager
200 Peach Street
E1 Dorado, AR 71730
"LESSEE" City of Little Rock, Arkansas
500 West Markham, Room 120 West
Little Rock, AR 72201
Attn: Nathaniel W. Hill
23.
DISCLAIMER BY LESSEE. Lessee disclaims any interest by prescription,
adverse possession or otherwise as to any land owned or claimed by Lessor
contiguous, adjacent or within five hundred (500) feet of The Demised
Premises. This disclaimer is a continuing disclaimer which can only be
terminated by giving written notice of such termination to Lessor.
24.
LIGHTING. Lessee shall not use strobe lights on the tower without
the prior written consent of Lessor.
25.
MEMORANDUM OF LEASE. The parties agree that a Memorandum of Lease
Agreement shall be recorded in Pulaski County, Arkansas in lieu of this
instrument.
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26.
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ABBITRATION. Any matter specifically provided in this Agreement as
one to be determined by arbitration shall be determined by three
arbitrators, one selected by the Lessee, a second selected by the Lessor,
and the third selected by the two so appointed. The arbitration shall be
conducted in Pulaski County, Arkansas and under the rules of the American
Arbitration Association then In effect and the decision of a majority of
the arbitrators thereunder shall be final and conclusive upon the parties
hereto and judgment upon such award may be entered in any court having
jurisdiction. The cost of such arbitration, including the expenses and
compensation of the Arbitrators, shall be borne solely by Lessee.
27.
INTERFERENCE. If, in the opinion of Lessor, the operation of
Lessee's antenna, transmitter, tower, or related equipment causes
objectionable electrical or radiation interference to the operation or
performance of any other facility located on Shinall or Crystal Mountain,
Lessor shall give Lessee written notice thereof specifying the nature and
extent of any such interference. Lessee shall immediately take the
necessary steps to correct such interference, including the purchase and
installation at Lessee's expense of additional equipment such as filters,
isolation traps, etc.
28.
LESSOR'S RIGHT OF ACCESS AND INSPECTION. Lessor or its agents or
employees shall have the right to inspect The Demised Premises at all
times, but this right shall be exercised as to cause no undue interference
with Lessee's use of The Demised Premises.
29.
DAMAGE OR DESTRUCTION CAUSED BY THIRD PARTIES. Lessor shall not be
liable to Lessee for damages arising from interference, discontinuance or
interruption of Lessee's operations on The Demised Premises under this
Lease which are due to acts of God or circumstances beyond Lessor's
control or the acts of other Lessees leasing from Lessor. "Circumstances
beyond its control" shall include but shall not be limited to interference
whether electrical, radiation or physical.
30.
FENCES. Lessee may install fences only around a compound area of
approximately feet by feet for security of its facilities and
around areas of approximately feet by feet for guy anchors,
but in no event shall Lessee install fences in such as a manner as to
limit Lessor's access to Lessor's property adjacent to The Demised
Premises.
31.
UPKEEP OF THE DEMISED PREMISES. Lessee shall comply with the
following conditions:
(a) The Demised Premises shall be kept free of trash and other
debris and shall be maintained in a safe, clean and sightly condition at
all times.
(b) Any portion of The Demised Premises to be used for motor vehicle
parking shall be a concrete slab area.
(c) 011, gas and other fuel shall be stored either in underground
metal tanks with suitable surface markers indicating the locations of said
tanks or in metal tanks above ground surface with each such tank enclosed
by a concrete wall. All propane fuel tanks shall be properly grounded.
(d) Any internal combustion auxiliary power unit shall be operated
only on a concrete slab.
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32.
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ENVIRONMENTAL INDEMNIFICATION. Lessee expressly indemnifies and
agrees to hold Lessor harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses, fines, penalties and
claims of any kind whatsoever, including clean up and restoration costs,
incurred or suffered by or asserted against Lessor as a result of the
presence in, upon or under, or the escape, leakage, spillage, discharge or
release from the lands, leases and waters subject hereto by Lessee or
anyone else or from the presence of any hazardous material, pollutant or
contaminant under federal, state or local law, in, upon or under such
lands, leases or waters or transportation or disposal of any such material
to any location resulting from operations conducted by Lessee, its
assigns, designees or subcontractors. Lessee shall also hold Lessor
harmless from and against any liability arising out of violation of the
Clean Water Act, Federal Water Pollution Control Act, Safe Drinking Water
Act, and other Acts having jurisdiction thereof. Notwithstanding anything
to the contrary contained in this Lease, the indemnity contained in this
paragraph shall survive the expiration or termination of this lease
whether such expiration or termination be in whole or in part.
33.
NONAPPROPRIATION OF FUNDS. In the event no funds or insufficient
funds are appropriated and budgeted or are otherwise unavailable in any
fiscal appropriations period of rental payments under paragraph 3 of this
Lease, then the Lessee will immediately notify Lessor of such occurrence
and this Lease shall terminate on the last day of the fiscal
appropriations for which funds are available. Such termination shall be
without penalty or expense to Lessee as to rentals except that Lessee
shall pay (a) the rental payments for which funds have been appropriated
or budgeted for the then current fiscal appropriations; and (b) the total
of all other rent payments due for the balance of the current term and all
renewals thereof, but only to the extent of the available funds and
revenues of the Lessee. In the event of such termination and failure of
Lessee to pay the amount specified in (b) above, Lessee agrees to
peaceably surrender possession of the premises to Lessor or its assigns on
the date of such termination. Lessee shall be entitled to remove
improvements placed on the Demised Premises under the terms and conditions
of paragraph 14 of this Lease. This paragraph in no way relieves Lessee
of its obligation at the termination to remove or pay the cost of removal
of any or all improvements installed, placed or erected by Lessee on The
Demised Premises.
In witness whereof, the Lessor by its duly authorized officers has
executed this agreement on the day of , 1991.
ATTEST:
James E. Baine, Secretary
DELTIC FARM 6 TIMBER CO., INC
By:
C. W. Butler, Jr., President
In witness whereof, the Lessee by its duly authorized officers has
executed this agreement on the day of 1991.
CITY OF LITTLE ROCK, ARKANSAS
By:
Earl Paul
Deputy City Manager
By:
Nathaniel W. Hill
Director of General
Services Department
k''il
LEASE - PAGE EIGHT
STATE OF ARKANSAS
COUNTY OF UNION
On this day before me, a Notary Public within and for the County and
State aforesaid duly qualified, commissioned and acting, appeared in
Person the within named C. W. Butler, Jr, and
who stated that they were the President and of
Deltic Farm 6 Timber Co., Inc., a corporation, and were duly authorized in
their respective capacities to execute the foregoing instrument for and in
the name and behalf of said corporation, and further stated that they had
so signed, executed and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
In Testimony Whereof, I have hereunto set my hand and official seal
this day of , I991.
My Commission expires:
Notary Public