Item 5DCity of Southlake, Texas
MEMORANDUM
August 2, 2005
TO: Shana Yelverton, City Manager
FROM: Pedram Farahnak, P.E., Director of Public Works, x8097
SUBJECT: Authorize the Mayor to Execute a Lease Agreement with Cingular for the
Placement of Wireless Communication Antennas on the Bicentennial Park
Water Tower.
Action Requested: Authorize the Mayor to execute a lease agreement with Cingular for the
placement of wireless communication antennas on the Bicentennial Park
Water Tower.
Background
Information: Cingular has expressed interest to lease space on the Bicentennial Park
water tower for the placement of wireless communication antennas. This
lease space also includes a 12' x 20' parcel for Cingular's equipment
housing.
To assess fair market value of this lease space, staff conducted a rate study
in January 2005 and found the average annual rate of ten neighboring
cities for wireless communication antenna leases multiplied by a factor of
1.25 (as approved by Council to account for higher property values in
Southlake) to be $30,120. The detailed results of the study are provided as
Exhibit "A ".
The lease space rate increases by 3% annually, as agreed according to the
attached agreement, and is scheduled to be increased on the first day of
each anniversary. After the initial five -year term, the City reserves the
right to study the rate of neighboring cities to re- evaluate fair market
value.
This lease agreement is the current city standard for antennas and
equipment placed on city water towers. The City Attorney has extensively
reviewed the agreement and determined it is legally sound. In addition,
the presence of these antennas will not interfere with the daily operations
of the water towers.
Financial
Considerations: Annual Revenue is $30,120.
1
Shana Yelverton, City Manager
August 2, 2005
Page 2 of 4
Citizen Input/
Board Review: None.
Legal Review: The City Attorney has reviewed and approved the agreement.
Alternatives: Approve or Deny.
Supporting
Documents: Agreement
Graph of City Lease Rates for Communication Antennas — Exhibit "A"
Location Map of Bicentennial Park Water Tower — Exhibit "B"
Staff
Recommendation: Authorize the Mayor to execute a lease agreement with Cingular for the
placement of wireless communication antennas on the Bicentennial Park
water tower.
ra
Shana Yelverton, City Manager
August 2, 2005
Page 3 of 4
Exhibit "A" — Graph of 2005 Lease Space Rate Study
2005 Water Tower Lease Agreements for Neighboring Cities
$35,000
$30,000
$25,000
$20,000
$15,000
$10,000
$5,000
$0
City
Average *1.25 $30,120 /yr
Average $24,090/yr
■ Annual Lease Amount
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Shana Yelverton, City Manager
August 2, 2005
Page 4 of 4
Exhibit `B" — Location Map
GROUND AND WATER TOWER LEASE AGREEMENT
SITE ID: DAL -4493
THIS GROUND AND TOWER LEASE AGREEMENT ( "Lease ") is entered into as of this day of
, 2005, by and between City of Southlake, Texas, a municipal corporation ( "LESSOR ") and
Houston Cellular Telephone Company, LP, by its General Partner, New Cingular Wireless PCS, LLC
( "LESSEE ").
In consideration of the premises and of the mutual obligations and agreements in this Lease, the parties
agree as follows:
1. THE PROPERTY
A. LESSOR is the titleholder of that certain real property commonly known as the Elevated
Water Tower, ( "White Chapel Tower ") at 400 N. White Chapel Blvd City of Southlake, County of
Tarrant, State of Texas ( "LESSOR'S Property") which is described on the attached Exhibit "AL" The
parties agree that the legal description of LESSOR'S Property may be attached as Exhibit "Al" after
execution of this Lease.
B. LESSEE hereby desires to lease a portion of LESSOR'S Property containing
approximately 12x20 square feet (the "Ground Premises ") and a certain portion of the elevated water
storage tank ( "Tower ") located on LESSOR'S Property, together with obtaining a right of access and a
right to install utilities (the "Property") at such locations as mutually agreed to and as set forth in Exhibit
"A2 ". The Property and landscaping requirements, including any fencing, are to be determined by the
LESSOR in advance of the placement of any LESSEE'S equipment. LESSEE may terminate this Lease
without penalty if LESSEE does not agree to the Property or landscaping requirements. In addition,
LESSEE shall have the right to run cables and wires under, over and across LESSOR'S Property to connect
LESSEE'S equipment on the Tower to its equipment in its facility located on the Property as approved by
LESSOR. LESSEE may park its vehicles on LESSOR'S Property when LESSEE is constructing,
removing, replacing, and /or servicing its communications facility.
C. LESSEE covenants and agrees that it has inspected the Tower and the Property and that it
does not rely on any representation of LESSOR as to the condition of the Property or Tower or their
suitability for the purposes and uses herein intended. LESSEE accepts the Property in its present condition
and finds it suitable for the purposes herein intended. LESSOR hereby grants LESSEE the right to obtain a
title report, soil tests, and other engineering procedures or environmental investigations on, under and over
the Property necessary to determine that LESSEE'S use of the Property will be compatible with LESSEE'S
engineering specifications, system, design, operations and Governmental Approvals (hereinafter defined).
LESSEE may terminate this Lease before construction commences without penalty if, in its sole discretion,
determines that the title report, soil tests and other engineering or environmental investigations are not
satisfactory or that it will be too time consuming or expensive or if the Governmental approvals are denied.
D. LESSOR and LESSEE further agree that the Property (including an access right -of -way
thereto but excluding the space on the Tower) may be surveyed by a licensed surveyor at the sole cost of
LESSEE, and such survey shall then replace Exhibit "A2" and become a part hereof and shall control to
describe the Property in the event of any discrepancy between such survey and the description contained in
Paragraph I.B. above.
2. LEASE AND EASEMENT
LESSOR leases the Property to LESSEE and grants to LESSEE a non - exclusive easement (during the term
of this Lease) to access the Property (seven [7] days a week, twenty-four [24] hours a day) and to install,
remove, replace, and maintain utility cables, conduits and pipes, at such locations as mutually agreed to and
as depicted in Exhibit "A2 ", from the Property to the appropriate source of electric and telephone facilities.
3. TERM AND RENT
A. This Lease shall be for an initial term of five (5) years beginning on the
( "Commencement Date ") at an Annual Rent of Thirty thousand one hundred twenty dollars ($30,120),
which rent shall be paid annually, in advance, beginning on the Commencement Date and on each
anniversary thereof (partial years prorated) to LESSOR or as LESSOR may otherwise direct from time to
time in writing at least thirty (30) days before any rent payment date. The Commencement Date shall be
the date LESSOR issues a building permit.
B. LESSEE shall pay LESSOR a late payment charge equal to five percent (5 %) of the late
payment for any payment not paid when due. In addition to the late payment charge, any amounts not paid
when due shall bear interest until paid at the lesser of the rate of one and three - quarters percent (1 ' / %) per
month or the highest rate permitted by law.
C. LESSEE is granted options to extend this Lease on these same terms and conditions for
four (4) additional five (5) year extension period(s) after the original term expires. This Lease shall
automatically be extended for the next extension period at the end of the then - current term subject to the
termination requirements in Section 5.
D. The Annual Rent shall be increased on the first day of each anniversary (yearly) by an
amount equal to three percent (3 %) of the Rent in effect during the previous year.
E. Should this Lease still be in effect at the conclusion of all the extension periods provided
for herein, this Lease shall continue in effect upon the same terms and conditions [other than Annual Rent
which shall be an amount equal to the Annual Rent in effect for the prior one (1) year period, increased by
Paragraph 3.D. above for a further period of one (1) year, and for like annual periods thereafter, until and
unless terminated by either party by giving to the other at least six (6) months written notice of its intention
to so terminate before the date this Lease expires.
4. USE OF THE PROPERTY
A. LESSEE may only use the Property for the operation of a Communications Facility,
including, without limitation, required LESSEE antenna array and antenna support structures as set forth in
the Exhibit "A -3" to this Agreement, and for the purpose of any construction, removal, replacement,
maintenance, security and operation of said Communications Facility. In the construction and placement of
the equipment on the Tower, LESSEE shall comply with the recommendations and comments of B. Talley,
Landmark, in his letter of March 4, 2005, to M. Ishmael, as set forth in Exhibit "A -4" hereto.
LESSEE shall not use or permit the Property to be used for any purposes other than described
above without the written consent of LESSOR, which consent will not be unreasonably withheld.
B.
1. This Lease authorizes the LESSEE, subject to Subsection 3 below, to install the antenna
and equipment on the Tower shown on Exhibit 11 A3 11 . LESSEE may not add additional
equipment or antennas from that shown on Exhibit "A3" without the approval of
LESSOR and satisfaction with all FCC and /or Federal Aviation Administration rules.
For each additional antenna installed by LESSEE beyond the size of the initial array
described in Exhibit "A3 ", LESSEE shall pay additional rent of $250 per month which
shall increase annually under the same terms provided in Section 3.D. and shall become
part of the Rent.
2. LESSEE may add equipment to the interior of the LESSEE'S building on the ground so
long as the equipment is permitted under this Lease and LESSEE complies with all
applicable laws, regulations and rules. LESSEE shall not make any modification to the
Ground Premises outside the building without LESSOR'S written consent.
Any improvement of the Property to meet LESSEE'S needs shall be at LESSEE'S sole
expense, and LESSEE shall maintain such improvements to the Property in a reasonable
condition throughout the term.
4. LESSEE shall not commence improvements to the Property or the Tower unless
LESSOR has approved the plans and the contractor performing the work. Further,
LESSEE agrees that it will not hire or use any contractor to perform work on the Property
or Tower unless the following requirements are met:
a. the LESSOR approves the contractor;
b. LESSEE pays for any overtime pay to LESSOR'S employees necessitated by the
work; and
c. should LESSOR elect to have the invoice for the work sent to LESSOR, LESSEE
reimburses the LESSOR for the cost of the work within 10 days of receipt of the
invoice.
C. LESSOR acknowledges that LESSEE'S ability to use the Property for its intended
purposes is contingent upon LESSEE'S obtaining and maintaining, both before and after the
Commencement Date, all of the certificates, permits, licenses and other approvals (collectively,
"Governmental Approvals ") that may be required by any federal, state or local authority for the foregoing
uses and improvements to the Property desired by LESSEE. LESSOR shall cooperate with LESSEE in
LESSEE'S efforts to obtain such Governmental Approvals and shall take no action that would knowingly
or intentionally adversely affect LESSEE'S obtaining or maintaining such Governmental Approvals, so
long as LESSEE is in compliance with applicable provisions of federal, state, and local laws and
regulations.
D. Nothing in this Lease shall preclude LESSOR from leasing other space for
communications equipment to any person or entity including a party which may be in competition with
LESSEE. Lease of other space for communications equipment or radio transmission will be in accordance
with Section 18 of this Lease.
E. The parties understand and agree that the primary function of the property is to serve as a
water tower for the LESSOR and that the interests of LESSEE are superseded by the public health, safety,
and welfare of the citizens of Southlake served by the Water Tower. In the event that the Southlake City
Council or the Southlake City Manager declares a public emergency or if there exists a threat to the Water
Tower facilities or potable water supply that would detrimentally impact public health, safety and welfare
such that immediate action is necessary, LESSEE shall immediately remove its improvements from the
Leased Premises. In the event LESSEE is not able to immediately respond, LESSOR may remove
LESSEE'S improvements without incurring liability for damages of any type. Costs of removal and
reattachment of improvements shall be borne by LESSEE.
5. TERMINATION
A. Provided LESSEE is not in default hereunder, if any of the following occurs, LESSEE
shall have the right to immediately terminate this Lease by giving written notice to LESSOR of such
termination.
LESSEE determines, in its sole discretion, that it will be unable to obtain all
necessary Governmental Approvals for LESSEE intended use of and improvements to the
Property desired by LESSEE or that it will be too time consuming or expensive to obtain such
Governmental Approvals; or
2. LESSEE'S application for any Governmental Approvals necessary for
LESSEE'S use of the Property and improvements desired by LESSEE'S is denied; or
3. any Governmental Approvals necessary for LESSEE'S use of the Property
and /or improvements to the Property, whether now or hereafter desired by LESSEE, are canceled,
expired, lapsed or are otherwise, terminated or denied so that LESSEE, in its reasonable judgment,
determines that it will no longer be able to use the Property for LESSEE'S intended use; or
4. The Federal Communications Commission allocates the frequencies at which
LESSEE may operate its antennas and equipment and may from time to time change such
frequencies. Any change of this nature that, in LESSEE'S reasonable judgment, renders its
operation of a wireless communications facility at the Property obsolete; or
5. If LESSEE determines that the Property has become unsuitable for LESSEE'S
operations due to changes in system or network design or in the types of equipment used in such
operations or LESSEE'S operations at the Property become unprofitable; provided however, for a
termination for such purpose to become effective, LESSEE shall tender two years rental payments
with LESSEE'S notice to LESSOR to terminate for this reason; or
6. If LESSOR commits a breach of this Lease and fails to cure such breach within
thirty (30) days after notice of the breach and requests to cure from LESSEE.
B. Provided LESSEE is not in default hereunder and shall have paid all rents and sums due
and payable to LESSOR by LESSEE, LESSEE shall have the right to terminate this Lease upon one (1)
year prior written notice to LESSOR.
C. LESSOR shall have the right to terminate this lease at any time after five (5) years from the
execution of this Addendum (the initial term) by giving one (1) year prior written notice to LESSEE. At
LESSOR's option, at the end of the initial term, LESSOR may adjust the annual rental rate. The adjusted
rate shall be market driven and based upon the average rate from a survey of the executed lease agreement
rental rates from the most recent 12 month period of the following cities, multiplied by 1.25:
Allen, Bedford, Colleyville, Euless, Farmers Branch, Frisco, Grapevine, Hurst,
Keller, and Plano
The survey shall be performed by the LESSOR and results of which must be accepted by LESSEE. At no
time shall the renegotiated rate be set lower than the current rental rate. If agreement is reached between
LESSEE and LESSOR on a renegotiated rate for a new five (5) year term at the expiration of the initial
term, LESSOR shall not have right to terminate this lease during the five (5) year term of the renegotiated
rate except for failure by LESSEE to perform any or all of its duties or obligations under the lease including
payment of rental to LESSOR. Notwithstanding anything contained herein to the contrary, LESSOR shall
have the right to terminate this lease at anytime upon thirty (30) days prior written notice to LESSEE
should LESSOR, in its sole discretion, determine that the tower upon which LESSEE'S equipment is to be
installed should be removed or dismantled.
D. Notwithstanding anything herein to the contrary, any breach, default or failure by
LESSEE to perform any of the duties or obligations assumed by LESSEE under this Lease, or to faithfully
keep and perform any of the terms, conditions and provisions hereof, shall be cause for termination of this
Lease by LESSOR in the manner set forth in this Paragraph. LESSOR shall deliver to LESSEE ten (10)
days prior written notice of its intention to terminate this Lease, including in such notice a reasonable
description of the breach, default or failure. If LESSEE shall fail or refuse to cure, adjust or correct the
breach, default or failure within said ten (10) days written notice to LESSEE to terminate this Lease. Upon
termination of this Lease, all rights, powers and privileges of LESSEE hereunder shall cease and terminate
and LESSEE shall, within thirty (30) days, vacate the Property and remove all of its improvements, fixtures
and equipment. In the event LESSEE does not vacate the Property within said period, LESSOR may,
without being deemed guilty of trespass, and without any liability whatsoever on the part of LESSOR, enter
upon and take full possession of the Property and remove any and all improvements, fixtures and
equipment not belonging to LESSOR that may be found upon the Property without being liable for
damages.
E. Any termination notice rendered by LESSEE or LESSOR pursuant to this
Paragraph shall cause this Lease 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 Lease and the parties
shall make an appropriate adjustment, as of such termination date, with respect to payments due
to the other under this Lease.
6. ASSIGNMENT AND SUBLETTING
A. LESSEE shall not assign this Lease, or allow it to be assigned, in whole or in part, by
operation of law or otherwise or mortgage or pledge the same, or sublet the Property, or any part thereof,
without the prior written consent of LESSOR except as follows: LESSEE will have the right to assign,
sell or transfer its interest under this Agreement to LESSEE'S parent company or any affiliate or subsidiary
of, or partner in, LESSEE or its parent company or to any entity which acquires all or substantially all of
the LESSEE'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. In such event,
LESSEE shall provide at least 60 days' notice to LESSOR of such assignment, transfer or sale. Such
assignment, sale or transfer will not become effective unless the assignee or purchaser agrees in writing
approved by the LESSOR to accept and be bound by the conditions and obligations imposed upon LESSEE
under this Lease Agreement. LESSEE may not otherwise assign this Agreement without LESSOR'S
consent, LESSOR'S consent not to be unreasonably withheld or delayed.
B. No consent by LESSOR to any assignment or sublease by LESSEE shall relieve LESSEE
of any obligation to be performed by LESSEE under this Lease, whether arising before or after the
assignment or sublease. The consent by LESSOR to any assignment or sublease shall not relieve LESSEE
from the obligation to obtain LESSOR'S express written consent to any other assignment or sublease and
any assignment shall not become effective unless the assignee agrees in writing to be bound by the
obligations imposed upon Lessee by this Agreement.
C. Any sale or other transfer, including by consolidation, merger or reorganization, of a
majority of the voting stock of LESSEE, if LESSEE is a corporation, or any sale or other transfer of a
majority in interest (whether of profits, losses, capital or voting power) or a majority of the persons
composing the managers of the partnership, if LESSEE is a partnership, shall not be an assignment for
purposes of this Paragraph 6.
FIRE OR OTHER CASUALTY
A. LESSEE shall immediately notify LESSOR of any and all damages resulting from,
arising out of, or caused to the property and LESSOR'S property surrounding the Property, including but
not limited to structural damages, electrical damages, damages to fencing, irrigation systems or landscaping
by LESSEE'S operations, by LESSEE, its officers, agents, employees and invitees. LESSEE shall be solely
responsible for the costs and the repair of all such damages and such repairs and /or replacements shall be
completed in a timely manner acceptable to LESSOR.
B. If the Tower, or access to it, is damaged or destroyed by a casualty, LESSOR shall
deliver written notice to LESSEE within twenty (20) days after receipt of notice from LESSOR'S insurance
company, which notice from LESSOR sets forth LESSOR'S election (a) not to repair, restore and /or
reconstruct the Tower, or (b) to repair, restore and /or reconstruct the Tower. If, as a result of any such
casualty, the Property becomes totally or partially unusable by LESSEE, rent shall abate during the period
of repair in the same proportion to the total rent as the portion of the Property rendered unusable bears to
the entire Property. If LESSOR elects to repair, then LESSOR shall promptly commence appropriate
repairs (to be diligently prosecuted to completion entirely at LESSOR'S expense), and this Lease shall
continue in full force and effect.
C. Notwithstanding anything contained herein to the contrary, LESSOR is under no duty or
obligation to repair the Tower in a manner that would accommodate LESSEE'S equipment or antenna
array. In the event that following repairs, the Tower is no longer suitable for LESSEE'S intended use,
LESSEE'S sole remedy shall be to terminate this Lease.
D. If LESSOR (a) undertakes the repair, restoration and /or reconstruction of the Tower or of
any access thereto but fails to complete such repair, restoration, and /or reconstruction within forty -five (45)
days after the casualty, or (b) notifies LESSEE of LESSOR'S intention not to repair, restore and /or
reconstruct the Tower, or fails to deliver to LESSEE the written notice required under Paragraph 7.13.
within twenty (20) days, then LESSEE may immediately cancel this Lease by giving written notice of its
election to cancel to LESSOR.
8. INDEMNIFICATION AND INSURANCE
A. LESSEE SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY AND
HOLD HARMLESS LESSOR AND ALL ITS OFFICERS, BOARDS, COMMISSIONS,
EMPLOYEES, AND AGENTS (HEREINAFTER REFERRED TO AS "INDEMNITEES "), FROM
AND AGAINST:
1. ANY AND ALL LIABILITY, OBLIGATIONS, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF ATTORNEYS,
EXPERT WITNESSES AND CONSULTANTS), WHICH MAY BE IMPOSED UPON,
INCURRED BY OR BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF
ANY ACT OR OMISSION OF LESSEE, ITS PERSONNEL, EMPLOYEES, AGENTS,
CONTRACTORS OR SUBCONTRACTORS, RESULTING IN PERSONAL INJURY,
BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY PERSON OR DAMAGE
TO, LOSS OF OR DESTRUCTION OF TANGIBLE OR INTANGIBLE PROPERTY,
LIBEL, SLANDER, INVASION OF PRIVACY AND UNAUTHORIZED USE OF ANY
TRADEMARK, TRADE NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY
OTHER RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY ARISE
OUT OF OR BE IN ANY WAY CONNECTED WITH LESSEE'S CONSTRUCTION,
INSTALLATION, OPERATION, MAINTENANCE, USE OR CONDITION OF THE
PROPERTY OR LESSEE'S FACILITIES OR THE LESSEE'S FAILURE TO COMPLY
WITH ANY FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR
REGULATION.
2. ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES,
PENALTIES, CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING , WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF
ATTORNEYS, EXPERT WITNESSES AND OTHER CONSULTANTS), WHICH ARE
IMPOSED UPON, INCURRED BY OR ASSERTED AGAINST THE INDEMNITEES BY
REASON OF ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS
OR SUPPLIES PROVIDED OR SUPPLIED TO LESSE, ITS CONTRACTORS OR
SUBCONTRACTORS, FOR THE INSTALLATION, CONSTRUCTION, OPERATION,
MAINTENANCE OR USE OF THE PROPERTY OR LESSEE'S ANTENNA FACILITIES,
AND, UPON THE WRITTEN REQUEST OF LESSOR, LESSEE SHALL CAUSE SUCH
CLAIM OR LIEN COVERING LESSOR'S PROPERTY TO BE DISCHARGED OR
BONDED WITHIN 30 DAYS FOLLOWING SUCH REQUEST.
B. IT IS THE INTENT OF THE PARTIES BY AGREEMENT TO THIS SECTION 8
THAT IF A CLAIM IS MADE IN ANY FORUM AGAINST INDEMNITEES FOR ANY OF THE
REASONS REFERRED TO IN SECTION 8, AND UPON RESOLUTION OF THE CLAIM:
1. THERE IS NO FINDING BY A COURT OF COMPETENT
JURISDICTION THAT INDEMNITEES WERE NEGLIGENT IN CONNECTION WITH
ANY OF THE REASONS REFERRED TO IN SECTION 8, LESSEE SHALL HOLD
INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS,
EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL
ATTORNEY'S FEES, COSTS, AND PENALTIES INCURRED; OR
2. THERE IS A FINDING BY A COURT OF COMPETENT
JURISDICTION THAT LESSEE WAS NEGLIGENT TO A GREATER DEGREE THAN
INDEMITEES IN CONNECTION WITH ANY OF THE REASONS REFERRED TO IN
SECTION 8, LESSEE SHALL HOLD INDEMNITEES HARMLESS AND INDEMNIFY
THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM
THE CLAIM, INCLUDING ALL ATTORNEYS' FEES, COSTS, AND PENALTIES.
C. In the event any action or proceeding shall be brought against the Indemitees by reason of
any matter for which the Indemnitees are indemnified hereunder, LESSEE shall, upon notice from any of
the Indemnitees, at LESSEE'S sole cost and expense, resist and defend the same; provided however, that
LESSEE shall not admit liability in any such matter on behalf of the Indemnitees without the written
consent of LESSOR and provided further that Indemnitees shall not admit liability for, nor enter into any
compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written
consent of LESSEE.
D. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE BENEFIT OF
THE PARTIES HERETO AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS,
CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY.
E. LESSOR shall give LESSEE prompt notice of the making of any claim or the
commencement of any action, suit or other proceeding covered by the provisions of this Lease. Nothing
herein shall be deemed to prevent LESSOR from cooperating with LESSEE and participating in the
defense of any litigation by LESSOR'S own counsel.
F. LESSEE shall pay all expenses incurred by LESSOR in response to any such actions,
suits or proceedings. These expenses shall include all out -of- pocket expenses such as attorney fees and
shall also include the reasonable value of any services rendered by the LESSOR'S attorney, and the actual
expenses of LESSOR'S agents, employees or expert witnesses, and disbursements and liabilities assumed
by LESSOR in connection with such suits, actions or proceedings but shall not include attorneys fees for
services that are unnecessarily duplicative of services provided LESSOR by LESSEE.
G. The indemnifications in this section shall survive the termination of this Lease.
H. Without limiting any of the other obligations or liabilities of the LESSEE, during the
term of the Agreement, the LESSEE shall purchase and maintain the following minimum insurance
coverage with companies duly approved to do business in the State of Texas. LESSOR has the right to
adjust these minimum insurance coverages during any renewal of this Lease Agreement by notifying
LESSEE in writing. The adjusted coverage requirements shall become effective sixty (60) days after
notification by LESSOR. Coverage shall be of the following types and not less than the specified amounts:
1. Worker's compensation as required by Texas law, with the policy endorsed to
provide a waiver of subrogation as to the LESSOR; employer's liability insurance of not less than
the minimum statutory amounts.
2. Commercial general liability insurance, including premises operations;
independent LESSEE'S liability, completed operations and contractual liability covering, but not
limited to, the liability assumed under the indemnification provisions of this Agreement, fully
insuring LESSEE'S (or SubLESSEE'S) liability for injury to or death of LESSOR'S employees
and third parties, extended to include personal injury liability coverage with damage to property of
third parties, broad form property damage, with minimum limits as set forth below:
General Aggregate
Bodily Injury
Property Damage
Products - Components /Operations Aggregate
Personal & Advertising Injury
(With Employment Exclusion Deleted)
Contractual Liability:
Bodily Injury
Property Damage
$2,000,000
$1,000,000 each occurrence
$1,000,000 each occurrence
$1,000,000
$1,000,000 each occurrence
$1,000,000 each occurrence
$1,000,000 each occurrence
The policy shall include coverage extended to apply to completed operations, asbestos hazards (if this
project involves work with asbestos) and ECU (explosion, collapse and underground) hazards. The
completed operations must be maintained for a minimum of one year after final completion of this
Agreement, with evidence of same filed with LESSOR.
3. Comprehensive automobile and truck liability insurance, covering owned, hired
and non -owned vehicles, with a combined bodily injury and property damage minimum limit of
$1,000,000 per occurrence; or separate limits of $500,000 for bodily injury (per person) and
$500,000 for property damage. Such insurance shall include coverage for loading and unloading
hazards.
4. Property Insurance (Builder's All Risk).
a. LESSEE shall purchase and maintain, at all times during the term, this
Agreement property insurance written on a builder's risk "all- risk" or equivalent policy
form in the amount of the initial contract price, plus value of subsequent contract
modifications and cost of materials supplied or installed by others, comprising total value
for the entire Project at the site on a replacement cost basis without optional deductibles.
Such property insurance shall be maintained, unless otherwise in writing by all persons
and entities who are beneficiaries of such insurance, until final payment has been made or
until no person or entity other than the LESSOR has an insurable interest in the property
required by this paragraph to be covered, whichever is later. This insurance shall include
interests of the LESSOR, the LESSEE, Sublessees and Sub - Sublessees in the Project.
b. Property insurance shall be on an "all- risk" or equivalent policy form
and shall include, without limitation, insurance against the perils of fire (with extended
coverage) and physical loss or damage including, without duplication of coverage, theft,
vandalism, malicious mischief, collapse, earthquake, flood, windstorm, false work,
testing and startup, temporary buildings and debris removal including demolition
occasioned by enforcement of any applicable legal requirements, and shall cover
reasonable compensation for LESSEE'S services and expenses required as a result of
such insured loss.
C. If the insurance required by this paragraph requires deductibles, the
LESSEE shall pay costs not covered because of such deductibles.
d. This property insurance shall cover portions of the Work stored off the
site, and also portions of the Work in transit.
5. Policy Endorsements: Each insurance policy to be furnished by LESSEE shall
include the following conditions by endorsement to the policy:
policies.
a. Name the LESSOR as an additional insured as to all applicable
b. Each policy shall require that 30 days prior to cancellation, non -
renewal or any material change in coverage, a notice thereof shall be given to LESSOR
by certified mail. If the policy is cancelled for nonpayment of premium, only 10 days
written notice to LESSOR is required.
C. The term "LESSOR" shall include all authorities, boards, bureaus,
commissions, divisions, departments and offices of the LESSOR and individual
members, employees and agents thereof in their official capacities, and /or while acting on
behalf of the LESSOR.
d. The policy phrase "other insurance" shall not apply to the LESSOR
where the LESSOR is an additional insured on the policy.
6. Special Conditions
a. Insurance furnished by the LESSEE shall be in accordance with the
following requirements:
i. Any Policy submitted shall not be subject to limitations,
conditions or restrictions deemed inconsistent with the intent of the insurance
requirements to be fulfilled by LESSEE.
ii. All policies are to be written through companies duly licensed
to transact that class of insurance in the State of Texas.
iii. All Liability policies required herein shall be written with an
"occurrence" basis coverage trigger.
LESSEE agrees to the following:
i. LESSEE hereby waives subrogation rights for loss or damage
to the extent same are covered by insurance. Insurers shall have no right of
recovery or subrogation against the LESSOR, it being the intention that the
insurance policies shall protect all parties to the contract and be primary
coverage for all losses covered by the policies.
ii. Companies issuing the insurance policies and LESSEE shall
have no recourse against the LESSOR for payment of any premiums or
assessments for any deductibles, as all such premiums and deductibles are the
sole responsibility and risk of the LESSEE.
iii. Approval, disapproval or failure to act by the LESSOR
regarding any insurance supplied by the LESSEE (or any Sublessees or
contractors) shall not relieve the LESSEE of full responsibility or liability for
damages and accidents as set forth in this Agreement. Neither shall be
bankruptcy, insolvency or denial of liability by the insurance company
exonerate the LESSEE from liability.
iv. Any of such insurance policies required under this paragraph
may be written in combination with any of the others, where legally permitted,
but none of the specified limits may be lowered thereby;
V. Prior to commencement of operations pursuant to this
Agreement, the LESSEE shall furnish the LESSOR with satisfactory proof that
he has provided adequate insurance coverage in amounts and by approved
carriers as required by this Agreement.
vi. LESSEE shall provide notice of any actual or potential claim
or litigation that would affect required insurance coverage to the LESSOR in a
timely manner.
vii. LESSEE agrees to either require its Sublessees to maintain the
same insurance coverage and limits as specified for the LESSEE. Likewise,
LESSOR shall provide notice of any actual or potential claim or litigation that
would affect required insurance coverage to the LESSEE in a timely manner,
and;
viii. Prior to the effective date of cancellation, LESSEE shall
deliver to the LESSOR a replacement certificate of insurance or proof of
reinstatement.
9. UTILITIES
A. LESSEE shall be responsible directly to the serving entities for all utilities required by
LESSEE'S use of the Property; however, LESSOR agrees to cooperate with LESSEE in its efforts to obtain
utilities from any location provided by the LESSOR or the servicing utility. Should electric power be
provided by LESSOR, LESSEE will install an electric meter and LESSEE'S usage shall be read by
LESSOR or, at LESSOR'S option, by LESSEE, on an annual basis and the cost of electricity used by
LESSEE shall be paid by LESSEE to LESSOR annually as a payment separate from rent and shall be
computed at the then - current public utility rate.
B. Should a power outage occur so that LESSEE is unable to operate using power from the
electric utility, LESSEE may operate with an electric generator, but only until electric utility power is
restored to the site.
10. RIGHTS TO EQUIPMENT; CONDITION ON SURRENDER
LESSEE'S antennas and equipment shall remain personal to and the property of LESSEE. At the
termination or expiration of this Lease, if notice is received from LESSOR, LESSEE shall remove its
antennas and /or equipment. LESSEE shall repair any damage caused by such removal, and shall otherwise
surrender the Property at the expiration of the term, as same may have been extended, or earlier termination
thereof, in good condition, ordinary wear and tear, damage by fire and other casualty excepted. Any of
LESSEE'S equipment or other property that has not been removed from the Property within thirty (30)
days from the time of Lease termination shall be deemed abandoned by LESSEE and LESSOR shall be
free to dispose of the same in any manner LESSOR chooses and without any liability to LESSEE therefore.
11. LESSEE DEFAULTS
A. The occurrence of any one or more of the following events shall constitute an "Event of
Default" hereunder by LESSEE:
1. The failure by LESSEE to make any payment of rent or any other payment
required to be made by LESSEE hereunder, as and when due, where such failure shall continue for
a period of twenty (20) days after written notice thereof is received by LESSEE from LESSOR.
10
2. The failure by LESSEE to observe or perform any of the covenants or
provisions of this Lease to be observed or performed by LESSEE, other than specified in
Paragraph 11. A. (1), where such failure shall continue for a period of twenty (20) days after
written notice thereof is received by LESSEE from LESSOR; provided however, that it shall not
be deemed an Event of Default by LESSEE if LESSEE shall commence to cure such failure within
said ten (10) days period and thereafter diligently prosecutes such cure to completion.
B. If there occurs an Event of Default by LESSEE, in addition to any other remedies
available to LESSOR at law or in equity, LESSOR shall have the option to terminate this Lease and all
rights of LESSEE hereunder.
12. NOTICES
All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, postage
prepaid, addressed as shown below (or to any other address that the party to be notified may have
designated to the sender by like notice):
LESSEE: Cingular Wireless -Site 94493
Attn: Legal Dept.
Address: 15 E. Midland Avenue
Paramus, NJ 07652
With a copy to: Cingular Wireless -Site 44493
Attn: Real Estate Contracts
Address: 6100 Atlantic Blvd.
Norcross, GA 30071
LESSOR: The City of SOUTHLAKE, Texas, a municipal corporation
Attn: City Manager
Address: 1400 Main Street Suite 320
Southlake, Texas 76092
Telephone Number: (817)481 -1420
13. SALE OR TRANSFER BY LESSOR
Should LESSOR, at any time during the term of this Lease, sell, lease, transfer or otherwise convey all or
any part of LESSOR'S Property to any transferee other than LESSEE, then such transfer shall be under and
subject to this Lease and all of LESSEE'S rights hereunder.
14. HAZARDOUS SUBSTANCES
A. LESSOR warrants that to its knowledge, as of the Commencement Date, there are no
hazardous materials, as that term is defined in Environmental Regulations, on the Property. Upon request,
LESSOR shall make available to LESSEE copies of all environmental assessments regarding the Property.
B. LESSEE represents, warrants, and covenants to LESSOR that LESSEE shall at no time
during the term of this Lease Agreement use or permit the Property to be used in violation of any
Environmental Regulations. LESSEE will not exercise any control over environmental conditions or any
activities, under this Agreement, at or near the Property that involve the generation, storage, treatment, or
disposal of any hazardous substance, material, chemical or waste.
C. LESSEE agrees to defend, indemnify and hold LESSOR harmless from and against any
and all claims, causes of action, demands and liability including, but not limited to, damages, costs,
expenses, assessments, penalties, fines, losses, judgments and attorney's fees that LESSOR may suffer due
to the existence or discovery of any Hazardous Substance on the LESSOR'S Property or the migration of
any Hazardous Substance to other properties or released into the environment arising from LESSEE'S
activities on the Property during the term of this Lease.
LESSEE and LESSOR also agree that LESSEE'S use of the Property will not involve the
subsurface, except for the placement of a foundation for LESSEE'S equipment and the necessary utility
connections from the foundation to the Tower
D. For the purposes of this Section, the term "Environmental Regulations" shall mean any
law, statute, regulation, order or rule now or hereafter promulgated by any Governmental Authority,
whether local, state or federal, relating to air pollution, water pollution, noise control and /or transporting,
storing, handling, discharge, disposal or recovery of on -site or off -site hazardous substances or materials, as
same may be amended from time to time, including without limitation the following: (i) the Clean Air Act
(42 U.S.C. § 7401 et seq.); (ii) Marine Protection, Research and Sanctuaries Act (33 U.S.C. § 1401 - 1445);
(iii) the Clean Water Act (33 U.S.C. § 1251 et seq.); (iv) Resource Conservation and Recovery Act, as
amended by the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. § 6901 et seq.); (v)
Comprehensive Environmental Response Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.); (vi) Toxic Substances Control
Act (15 U.S.C. § 2601 et seq.); (vii) the Federal Insecticide, Fungicide and Rodenticide Act as amended (7
U.S.0 § 135 et seq.); (viii) the Safe Drinking Water Act (42 U.S.C. § 300 (f) et seq.); (ix) Occupational
Health and Safety Act (29 U.S.C. § 651 et seq.); (x) the Hazardous Liquid Pipeline Safety Act (49 U.S.C. §
2001 et seq.); (xi) the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.); (xii) the Noise
Control Act of 1972 (42 U.S.0 § 4901 et seq.); (xiii) Emergency Planning and Community Right to Know
Act (42 U.S.0 §§ 11001 - 11050); and (xiv) the National Environmental Policy Act (42 U.S.0 §§ 4321-
4347).
E. NOTWITHSTANDING THE PROVISIONS OF SECTION 14, IT IS THE INTENT OF
THE PARTIES THAT IF A CLAIM IS MADE IN ANY FORUM AGAINST INDEMNITEES
CONCERNING THE GENERATION, RELEASE, DISPOSAL, STORAGE, OR TRANSPORTATION
OF A HAZARDOUS SUBSTANCE OR MATERIAL, AS THOSE TERMS ARE DEFINED IN
"ENVIRONMENTAL REGULATIONS ", ON THE PROPERTY BY LESSEE, ITS AGENTS,
EMPLOYEES, OR CONTRACTORS, AND UPON RESOLUTION OF THE CLAIM:
1. THERE IS NO FINDING BY A COURT OF COMPETENT JURISDICTION
THAT INDEMNITEES WERE NEGLIGENT IN CONNECTION WITH THE GENERATION,
RELEASE, DISPOSAL, STORAGE OR TRANSPORTATION OF THE HAZARDOUS
SUBSTANCE, LESSEE SHALL HOLD INDEMNITIEES HARMLESS AND INDEMNIFY
THEM FOR ANY DAMAGE, LOSS, EXPENSE, OR LIABILITY RESULTING FROM THE
CLAIM, INCLUDING ALL ATTORNEYS' FEES, COSTS, AND PENALTIES INCURRED OR
2. THERE IS A FINDING BY A COURT OF COMPETENT JURISDICTION
THAT LESSEE WAS NEGLIGENT TO A GREATER DEGREE THAN INDEMNITEES IN
CONNECTION WITH THE GENERATION, RELEASE, DISPOSAL, STORAGE, OR
TRANSPORTATION OF THE HAZARDOUS SUBSTANCE, LESSEE SHALL HOLD
INDEMNITEES HARMLESS AND INDEMNIFY THEM FOR ANY DAMAGE, LOSS,
EXPENSE, OR LIABILITY RESULTING FROM THE CLAIM, INCLUDING ALL
ATTORNEYS' FEES, COSTS, AND PENALTIES INCURRED.
F. This Section shall survive the expiration or termination of this Agreement.
15. CONDEMNATION
A. In the event the whole of LESSOR'S Property, including without limitation the Property
and Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to
a condemning authority under threat of condemnation to prevent taking, then this Lease shall forthwith
automatically cease and terminate.
12
B. In the event any portion of the Property, including without limitation the Tower, shall be
taken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning
authority under threat of condemnation to prevent taking, then LESSOR agrees that LESSEE may use
and /or construct upon an alternative portion of LESSOR'S Property which is equally suitable for
LESSEE'S purposes, provided such space is available. The exact site to which LESSEE may relocate will
be determined by LESSOR, and it may be upon any portion of LESSOR'S Property (or other property
owned or controlled by LESSOR) provided that LESSEE reasonably approves the site as equally suitable
for LESSEE'S intended uses. LESSOR will designate a site to which LESSEE may relocate prior to the
taking, condemnation or sale. In the event no alternative portion of the LESSOR'S Property is equally
suitable for the purposes of LESSEE, then LESSEE may terminate this Lease.
C. LESSOR shall receive the entire condemnation award for land, Tower and such other
improvements as are paid for by LESSOR, and LESSEE hereby expressly assigns to LESSOR any and all
right, title and interest of LESSEE now or hereafter arising in and to any such award. LESSEE shall have
the right to recover from such authority but not from LESSOR, any compensation as may be awarded to
LESSEE on account of the leasehold interest of LESSEE now or hereafter arising in and to any such award.
LESSEE shall have the right to recover from such authority, but not from LESSOR, any compensation as
may be awarded to LESSEE on account of the leasehold interest, moving and relocation expenses, and
deprecation to and removal of the personal property and fixtures of LESSEE.
16. LIENS
LESSEE shall keep the Property free from any liens arising out or any work performed, materials
furnished, or obligations incurred by or for LESSEE. LESSEE shall, within twenty (20) days following the
imposition of any such lien, cause the same to be released of record by payment or posting of a proper
bond. No work which LESSOR permits LESSEE to perform on the Property shall be deemed to be for the
use and benefit of LESSOR so that no mechanics or other lien shall be allowed against the estate of
LESSOR by reason of its consent to such work. LESSOR shall have the right to post notices that it is not
responsible for payment for any such work.
17. TAXES
LESSEE shall be liable for and shall pay to the applicable taxing authority if billed directly to LESSEE, or
to LESSOR if billed to LESSOR, upon thirty (30) days prior, written notice from LESSOR, any and all
taxes and assessments levied against any personal property or trade or other fixtures placed by LESSEE in
or about the Property.
LESSEE shall pay as additional rent any increases in real property taxes levied against LESSOR'S
Property, including the Tower, as a result of improvements constructed by LESSEE on the Property.
LESSEE will not be responsible for any increases in real property taxes, which are a result of reassessment
of LESSOR'S Property due to any sale or transfer of ownership thereof.
18. QUIET ENJOYMENT AND NON - INTERFERENCE
A. LESSOR warrants and agrees that LESSEE, upon paying the rent and performing the
covenants herein provided, shall peaceably and quietly have and enjoy the Property.
B. LESSEE covenants and agrees that LESSEE'S equipment, its installation, operation and
maintenance will:
1. Not interfere with the operation of existing radio equipment at the Tower,
whether operated by LESSOR or other operators prior to installation of LESSEE'S antennas
and/or transmission lines on the Tower. LESSEE shall coordinate with LESSOR and all other
operators of existing radio equipment at the Tower to insure that LESSEE'S frequencies and
antenna locations will be compatible with said existing radio equipment. In the event there is
harmful interference to said electronic equipment, LESSEE will promptly take all steps to
13
eliminate said harmful interference within ten (10) days after notice from LESSOR or such other
operator to LESSEE advising of the interference. If said interference cannot be eliminated within
thirty (30) days of notice thereof, LESSEE agrees to suspend operations (transmissions) at the site
while the interference problems are studied and a means found to mitigate them. If said
interference cannot be eliminated, then LESSEE shall remove its building and equipment from
LESSOR'S Property and this Lease shall thereupon be terminated. In addition, in the event
LESSOR desires to install its own additional radio equipment at the water tower site in the future,
LESSEE agrees to work with LESSOR to eliminate any interference with said radio equipment.
However, LESSEE shall not be required to eliminate interference on equipment installed after
LESSEE equipment is installed. However, in no event shall LESSEE be required to deactivate or
move its antennas or equipment on the tower site or the equipment building.
2. During the term of this Lease or any extension thereof, LESSOR shall not
permit other tenants, to place or operate any equipment, which would interfere with LESSEE'S
equipment or operations on the LESSOR'S Property or Property. LESSOR shall cause that all
subsequent tenants on the Tower to first coordinate with LESSEE to ensure that their frequencies
and antenna locations will be compatible with LESSEE'S and to agree to a clause similar to this
Section 18.B.(1) herein, promising to immediately eliminate harmful interference if said tenant's
radio equipment should interfere with that of LESSEE herein.
C. LESSEE, as well as LESSEE'S property, shall comply with all applicable rules and
regulations of the Federal Communications Commission, state laws and Federal laws, City Ordinances and
electrical codes of City of Southlake and for State of Texas. Under this Lease, the LESSOR assumes no
responsibility for the licensing, operations and /or maintenance of LESSEE'S equipment, antennas,
transmission lines or attachments.
19. RF EMISSIONS
LESSEE shall, at its sole cost and expense, prepare and deliver to LESSOR, or cause to be prepared and
delivered to LESSOR, an evaluation of the radio frequency emissions from the Tower site as required by
the Federal Communications Commission, taking into consideration the addition of the LESSEE'S radio
communications equipment. In the event the LESSEE determines that such radio communications
equipment would cause the Tower site not to comply with the radio frequency exposure limits promulgated
under 47 C.F.R. § 1. 1307, et seq. (1997, as amended from time to time), LESSOR at its sole discretion may
modify or cause modifications of equipment or conditions on the Tower site in order to permit location of
LESSEE'S radio communications equipment at Tower in compliance with the RF Emissions Regulations.
If LESSOR elects not to effect such modifications, it shall so notify LESSEE, and LESSEE shall thereafter
have the right to terminate the Lease by notice to LESSOR. LESSOR grants LESSEE the right to place
electromagnetic energy warning signs proximate to its Communication Facility and radio communications
equipment so long as such warning signs are in compliance with applicable law.
20. COORDINATION OF OPERATION
A. LESSOR agrees (i) to use its diligent efforts to minimize inconvenience to LESSEE by
using its diligent efforts not to cause or permit any interruption or interfere with the operations of
LESSEE'S antennas or equipment, and (ii) to give LESSEE notice of any repairs, alterations, additions or
improvements to be made with respect to the maintenance and operation of the Tower and the Property or
of any planned shut downs associated with the Tower for scheduled or routine maintenance that might
adversely affect the operation of LESSEE'S wireless communications facility, antennas or equipment at
least thirty (30) days written notice before the repair, alteration, addition, improvement or shut down of the
tower.
B. Access to the interior of Tower or to the top of the Tower shall be accomplished only
with the presence of the City's Public Works Operations Supervisor or his or her representative. Only
qualified and adequately insured employees, agents, contractors or persons under LESSEE'S direct
supervision will be permitted to climb the Tower and to install, maintain, or remove LESSEE'S antennas
14
and /or equipment from the Tower. LESSOR retains the right to permit its own employees and agents and
employees and agents of the subsequent users of the Tower to climb the Tower for the purpose of repair
and maintenance or for any other purposes that do not interfere with LESSEE'S use of the Tower, and so
long as LESSEE complies with the provisions of Section 18 of this Lease.
C. LESSOR shall not permit any person, including without limitation any contractor,
employee, agent, tenant, or invitee, to work within a ten (10) foot radius of LESSEE'S antennas unless
LESSEE is notified, except in the case of an emergency, prior to such activity. LESSOR agrees to give
LESSEE reasonable advance written notice (except in the case of emergency where advance written notice
cannot be reasonably given, in which event, LESSOR shall give LESSEE telephonic notice (at
-2-21" ) of repairs, alterations, additions, or improvements to be made with respect to the
maintenance and operation of the Tower and the Property within such radius of the antennas.
D. In the event that LESSOR determines that any equipment or operation of LESSEE causes
radio interference, as defined and regulated by the Federal Communications Commission, or interferes with
the operation or use of the Tower or with any of LESSOR'S facilities or LESSOR'S equipment on the
Tower, then LESSEE shall have thirty (30) days within which to correct such radio interference, pursuant
to Section 18.13., unless such interference is with LESSOR'S emergency communications; then such
interference shall be corrected immediately or terminated.
E. It is further understood and agreed that LESSOR may perform reasonable routine
maintenance, painting, etc. of the Tower without compensation or liability to LESSEE, even though such
maintenance and painting may cause interference with LESSEE'S operations. LESSOR shall notify
LESSEE at least sixty (60) days prior to any scheduled maintenance or painting on the Tower that will be
likely to interfere with the operation of LESSEE'S equipment and allow LESSEE to construct and operate
temporary facilities on LESSOR'S Property. LESSOR shall not be required to notify LESSEE prior to
performing any emergency maintenance on the Tower.
F. To the extent that any shut down, repair, alteration, addition or improvement of the Tower
might adversely affect the operation of LESSEE'S Wireless Communications facility, antennas or
equipment for a period in excess of fourteen (14) days, the rent shall be abated for the relevant time period
during which LESSEE'S operations are adversely affected.
21. LIGHTING OF ANTENNAS
LESSOR hereby agrees that, if because of LESSEE'S operations on the Property any laws or regulations of
the Federal Aviation Administration, Federal Communications Commission or any other relevant
governmental agency or body require or recommend that LESSEE'S antennas and /or the Tower be lit
and /or marked, LESSEE may install and maintain such lighting and markings. In no event, however, shall
LESSEE be responsible for the installation or maintenance of any lighting or markings required by the
operations of LESSOR or any other tenant in the Tower. LESSOR will permit LESSEE access to all
portions of the Tower that LESSEE may need in order to check and replace such required or recommended
lighting or marking.
22. BROKERS
LESSOR and LESSEE represent to each other that they have not negotiated with any real estate broker in
connection with this Lease.
23. ESTOPPEL CERTIFICATES
A. LESSOR, at the request of LESSEE, shall provide LESSEE with a certificate stating: (1)
whether LESSOR has any claim against LESSEE and if so, stating the nature of such claim; (2) that
LESSOR recognizes LESSEE'S right to LESSEE'S antennas, equipment and other property; (3) that
LESSEE has the right to remove LESSEE'S equipment and other property from the Property
notwithstanding that same may be considered a fixture under local law; and (4) that LESSOR has no
15
interest in and disclaims any interest to LESSEE'S equipment and other property.
B. LESSEE, at the request of LESSOR, shall provide LESSOR with a certificate stating: (1)
that this Lease is unmodified and in full force and effect (or, if there has been any modification, that the
same is in full force and effect as modified and stating the modification); (2) whether or not, to LESSEE'S
knowledge, there are then existing any set -offs, or defenses against the enforcement of any of the
agreements, terms, covenants or conditions hereof upon the part of LESSEE to be performed or complied
with (and, if so specifying the same); and (3) the dates, if any, to which the rent has been paid in advance.
24. MISCELLANEOUS PROVISIONS
A. This Lease is not a franchise. This agreement does not prevent the LESSOR from
seeking to implement a franchise on LESSEE, but LESSEE does not acknowledge that the LESSOR has a
right to franchise LESSEE or waive any right it might have to contest a franchise.
B. LESSOR warrants and agrees that LESSOR is seized of good and sufficient title to and
interest in the Property and has full authority to enter into and execute this Lease and that there are no
undisclosed liens, judgments or impediments of title on LESSOR'S Property that would affect this Lease.
C. This Lease, including attached exhibits which are hereby incorporated by reference,
incorporates all agreements and understandings between LESSOR and LESSEE, and no verbal agreements
or understandings shall be binding upon either LESSOR or LESSEE, and any addition, variation, or
modification to this Lease shall be ineffective unless made in writing and signed by the parties.
D. LESSOR agrees that LESSOR'S Property (including, without limitation, the Tower) and
all improvements comply, and during the term of this Lease, shall continue to comply with all building,
life /safety, disability and other laws, codes and regulations of any applicable governmental or quasi -
governmental authority. All such compliance shall be accomplished at LESSOR'S sole cost and expense.
Except for improvements made by LESSEE, LESSOR, at its sole cost, shall maintain in good condition and
repair, the Tower and other improvements upon which the Property is located. LESSEE agrees that
LESSEE'S property and all equipment and improvements erected hereunder shall comply, and during the
term of this Lease, shall continue to comply with all building, life /safety, disability and other laws, codes
and regulations of any applicable governmental or quasi - governmental authority. All such compliance
shall be accomplished at LESSEE'S sole cost and expense. LESSEE, at its sole cost and expense, shall
maintain the appearance of all such equipment and improvements in a manner or condition not materially
different from that at the time of installation.
E. This Lease and the performance hereof shall be governed, interpreted, construed and
regulated by the laws of the State of Texas. Any litigation concerning this Lease shall be conducted in
Tarrant County, Texas and the parties hereby agree to the venue and personal jurisdiction of these courts.
F. This Lease, and each and every covenant and condition herein, is intended to benefit the
Property and shall extend to and bind the heirs, personal representatives, successors and assigns of the
parties.
G. The parties agree that all of the provisions hereof shall be construed as both covenants
and conditions the same as if the words importing such covenants and conditions had been used in each
separate paragraph.
H. The parties acknowledge that each has had an opportunity to review and negotiate this
Lease and have executed this Lease only after such review and negotiation. The language of each part of
this Lease shall be construed simply and according to its fair meaning, and this Lease shall not be construed
more strictly in favor or against either party.
I. If any portion of this Lease is declared by a court of competent jurisdiction to be invalid
or unenforceable, then such portion shall be deemed modified to the extent necessary in such court's
1001
opinion to render such condition enforceable and, as so modified, such portion and the balance of this
Lease shall continue in full force and effect.
J. In addition to the other remedies provided for in this Lease, LESSOR and LESSEE shall
be entitled to immediate restraint by injunction of any violation of any of the covenants, conditions, or
provisions of this Lease.
K. The captions of the paragraphs of this Lease are for convenience of reference only and
shall not affect the interpretation of this Lease.
L. In the event LESSEE has requested modifications to LESSOR'S form lease, this Lease
shall not become effective unless LESSEE has reimbursed LESSOR for all professional fees related to
review and approval of the modifications.
M. Each party represents that it has not been represented by a broker in the approval process
of this Lease.
END OF ARTICLES
IN WITNESS WHEREOF, LESSOR and LESSEE have duly executed this Lease as of the day and year
first above written.
ATTEST: LESSOR OF SOUTHLAKE, TEXAS
LESSOR Secretary
Its: Mayor
Date:
LESSEE Houston Cellular Telephone Company, LP, by its
General Partner, New Cingular Wireless PCS, LLC
Russ Layton
Its: Real Estate and Construction Manager
Date: 7 �5
Approved as to form:
City Attorney
17
ACKNOWLEDGMENT
THE STATE OF TEXAS
``
COUNTY OF I >�'4ANA-)
BEFORE ME, the undersigned authority, on this day personally appeared Russ Layton, Real Estate and
Construction Manager, Houston Cellular Telephone Company, LP, by its General Partner, New Cingular
Wireless PCS, LLC, a corporation, known to me to be the person and officer whose name is subscribed to
the foregoing instrument and acknowledged to me that the same was the act of the said Houston Cellular
Telephone Company, LP, by its General Partner, New Cingular Wireless PCS, LLC, a corporation, and that
he /she executed the same as the act of such corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
'r
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ,the ' ' day of 2005.
(OFFICIAL NOTARY SIGNATURE)
NOTARY PUBLIC -STATE OF
OF NOTARY) MY COMMISSION EXPIRES ;"
THE STATE OF TEXAS '
COUNTY OF TARRANT
M. DAVID PREJEAN
Notary Public, State of Texas
My Commission Expires
l STAMP" SA �g
The foregoing instrument was acknowledged before me this day of 2005,
by , of the City of Southlake on behalf of the City. He /she is
personally known to me.
(OFFICIAL NOTARY SIGNATURE)
NOTARY PUBLIC -STATE OF
(PRINTED, TYPED OR STAMPED NAME OF NOTARY)
MY COMMISSION EXPIRES
18
EXHIBIT "AI"
LEGAL DESCRIPTION
SITE ID: DAL -4493
The description of the Property is as follows:
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EXHIBIT "Al" (cont.)
LEGAL DESCRIPTION
SITE ID: DAL -4493
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EXHIBIT "A2"
DEPICTION OF PROPERTY
SITE ID: DAL -4493
The leased Property is situated within LESSOR'S Property as described in Exhibit "A V.
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DEPICTION OF PROPERTY
SITE ID: DAL-4493
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EXHIBIT "A2" (cont.)
DEPICTION OF PROPERTY
SITE ID: DAL -4493
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EXHIBIT "AY
TENANT'S PLAN AT ANTENNA
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EXHIBIT "A3" (cont.)
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EXHIBIT "A4"
March 4 =— 0
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