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Item 5DCity of Southlake, Texas MEMORANDUM January 2, 2003 TO: Billy Campbell, City Manager FROM: Pedram Farahnak, Public Works Director, x2308 SUBJECT: Authorize the Mayor to execute an amendment to the April 30, 1996 lease agreement with Verizon Wireless for the placement of an antenna system on the Bicentennial Water Tower. Action Requested: Authorize the Mayor to execute an amendment to the April 30, 1996 lease agreement with Verizon Wireless for the placement of an antenna system on the Bicentennial Water Tower. Background Information: Verizon has agreed to amend the April 30, 1996 lease for antennas on the Bicentennial water tower. Three major changes are proposed: the lease rate would change from $12,696 to $22,000 per year; the City would agree to extend the contract term for 25 years; and a 5% annual increase in rent would be added to the agreement. To ensure Southlake is collecting competitive lease payments, staff conducted a rate study and found the average annual rate for wireless communication antenna leases to be $19,302. The results of the study are provided in this packet. Financial Considerations: If the annual rate is raised from $12,696 to $22,000 and the rent is increased 5% annually, the additional revenue over the next five years will be $54,275.89. Citizen Input/ Board Review: Not applicable. Legal Review: The City Attorney has reviewed and approved the amendment. Alternatives: Approve or Deny. Supporting Documents: Amendment to Ground and Tower Lease Agreement Original Agreement dated April 30, 1996 Rate Study of Comparative DFW Cities Location Map Staff Recommendation: Authorize the Mayor to execute an amendment to the April 30, 1996 lease agreement with Verizon Wireless for the placement of an antenna system on the Bicentennial Water Tower. Cc: Mike Patterson, Operations Manager Valerie Bradley, Assistant to the Public Works Director Owner Site ID: Bicentennial Water Tower Verizon Wireless Site ID: Southlake Water Tower: R0034A, Site #161400A AMENDMENT TO GROUND AND TOWER LEASE AGREEMENT BETWEEN CITY OF SOUTHLAKE AND VERIZON WIRELESS This is an Amendment to the Ground and Tower Lease Agreement dated April 30, 1996 ( "Lease "), between the City of Southlake, Texas, a municipal corporation, ( "OWNER ") and PrimeCo Personal Communications, L.P., a Delaware limited partnership, ( "PPC "), now succeeded in interest by Dallas MTA L.P. d/b /a Verizon Wireless ( "VERIZON WIRELESS "); WHEREAS, on or about April 30, 1996, the parties entered into a Ground and Tower Lease Agreement for the elevated water tower known as Bicentennial Water Tower at 400 North White Chapel in Southlake, Texas; and WHEREAS, the parties wish to amend the Lease in certain respects as set forth below. NOW, THEREFORE, the parties mutually agree to modify and amend the Lease as follows: I. That Section 3, Term and Rent, of the Lease shall be deleted in its entirety and be replaced with the following: A. This Lease shall be for an initial term of five (5) years beginning on February 1, 2003 ( "Commencement Date "), at an Annual Rent of Twenty Two Thousand and no /100 Dollars ($22,000.00), which rent shall be payable monthly in advance beginning on the Commencement Date and each month thereafter (partial months prorated) to OWNER or as OWNER may otherwise direct from time to time in writing at least thirty (30) days before any rent payment date. Annual Rent shall be increased by five percent (5 %) on the anniversary date of the Commencement Date and each succeeding anniversary date thereafter throughout the initial term. The terms and conditions of the Lease dated April 30, 1996, shall remain in full force and effect as stated until amended by this Amendment and made effective on the Commencement Date. B. This Lease shall automatically renew for four (4) additional successive five (5) year extension periods upon the expiration of the initial term, subject to the termination requirements in Section 5, Termination. Page 1 owner Si to ID gicenienn al Water Tower Ver um Wveks Site D- Swthk Wad Tv—: RO634k, SitC #1614110A C. The Annual Rent for each year of each extension period shall be the Annual Rent in cffect for the previous year increased by five percent (5 payable monthly in advance, D. 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 (l ) year period, increased by Paragraph 3.C., above, for a Rather period of one (1) year, and for like annual periods thereafter, until and unless terminated by either party giving to the other at least ninety (90) days written notice of its intention to so terminate before the date this Lease expires. lip That the first paragraph of Section 5F. of the Lease shall he deleted in its entirety and replaced with the following: F. Notwthstanding anything to the contrary contained herein, provided VERIZON WIRELESS is not in default hereunder and shall have paid all rents and sums due and payable to the OWNER by VERIZON WIRELESS, VERIZON WIRELESS shall have the right to terminate tWs Lease upon the annual anniversary of this Lease provided that three (3) months prior notice is given the OWNER. Notwithstanding anything contained herein to the contrary, OWNER shall have the right to terminate this lease upon ninety (90) days prior written notice to VERIZON WIRELESS should OWNER, in its reasonable discretion and after conclusive engineering studies, determine that the tower upon which VERIZON WIRELESS' equipment is installed should be removed or dismantled because of unsafe structural conditions. III. All reverences to YnIDCUC Yersonal U011111111liCatloTiS, L.r,, a l_relaware partnership ("PFC"), within the Lease shall hereinafter mean Dallas MTA LT Verizon Wireless ( "VERIZON WIRELESS "). IV. The address for notice for "PPC" under Section 12, Notices, shall be deleted in its entirety and replaced with the following: Dallas MTA L.P. dlWa Verizon Wireless 1$0 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate f Dwmr Sim ID: Brcentmnial Warer Toxvr Vmz m Winks Site ID: Sa�ahl�Icc„SYalsr_7awer: R0034A, Site 0161400A V. The terms of this Amendment shall control in the event of conflict with the Lease. In all other respects, the Lease dated April 30, 1996, shall be in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment as of the dates shown below in their respective signatures. ATTEST: CITY OF SOUTHLAKE, TEXAS City Secretary B Rick Stacy Its: Mayor Date: DALLAS NITA L.P. dfbla VERIZON WIRELESS by VerWn Wireless Texw LLC, Its gentral partner By: , + Y w7- Howard H. Bower Its: Area Vice President — Network, South Area Date: / / Page 3 Owner Siu 1➢. Bimbmmal Water Tower Verixoe Wireless Sate ID: SouthW — Waur_Tower: R%34A, Siu M161400A STATE OF NORTH CAROLINA 4-..) COUNTY OF I(±L44B1JRG BEFORE ME, the undersigned authority in and for btecklelibm County, State of North Carolina, on this day pemnally appeared Howard H. Bower, known to me to be the person and officer whose name is .subscribed to the foregoing instrument and acknowledged to me that he is the Area Vice President — Network. South Area of Dallas MTA L.P. "a Verizon Wireless, by Verizon Wireless Texas, LLC, its general partner, and that he is authorized by said company to execute the foregoing instrument as the act of such company for the purposes and consideration therein expressed, and in the capacity therein stated. GNEI+I UNDER MY HAND AND SEAL OF OFFICE, this the , 1 day of 204 . a. Notary P*li5An and TI State of North Carolina Type or P rin t OTA` �- e RkTE OF NQRTH CARoUNA CA IARRUS COUNTY My Commission Expires: 8Er(Y F. JOHNSON MY COMI VIssIIO p65 IRIS -lfM fly APRIL 18, Page 4 GROUND AND TOWER LEASE AGREEMENT SITE ID: R0034A OFFICIAL RECC THIS GROUND AND TOWER LEASE AGREEMENT ( "Lease") is entered into as of this � day of , , 1446, by and between City of Suuthlakc, Texas, a municipal corporation ( and PrimeCo Personal Communications, L.P., a Delaware limited partnership (-PPC')_ In consideration of the premises and of the mutual obligations and agreements in this Lease, the parties agree as rollo ws THE PROPERTY A. OWNER is the titleholder of that certain real property commonly 11mown as Bicentennial Water Tower ( "Tower") at 400 North White Chapel, City of Southlake, County of Tarrant, State of Texas ("OWNER's NER's property ") which is described on the attached Exhibit "A 1" The parties agree that the legal description of OV/KER's Property maybe attached as Exhibit "A 1" a her execution of this Lease. B. PPC hereby desires to lease a purtiun or OWNER's Property, and a certain potuon of the elevated water storage tank ( "Tower ") located on OWNER's Property, together with obtaining a right of access and a right to install utilities (the "Property") as set forth in Exhibit "AT'. The Property and landscaping requirements, including any fencing, are to be determined by the OWNER. In addition, PPC shall have tire right to run cables and wires under, over and across ONINER's Prop" to connect PPC's equipment on the Tower to its equipment in its facility located on the Property as approved by OWNER_ PPC may park its vehicles on OWNER's Propety when PPC is constructing, removing, replacing, and'or servicing its communications facility, C. PPC covenants and agrees that it has inspected the Tower and the Property and that it does not rel% on any represemarion of O WNER as to the condition of the Property or Tower or their suitabilin for tht purposes and uses herein intended. PPC accepts the Property in its present condition and finds it suitable for the purposes herein intended. OWNER hereby grants. PPC the right to obtain a title report, soils tests, and other engineering procedures or environmental investigations on, under and ovet die Property necessary to determine that PPCs's use ofthe Property will be compatible with PPC's engineering specifications, system, design, operations and Governmental Approvals (bereinaRer defined). A. OWNER and PPC further agree that the Propertm (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 PPC, and such survey shall then replace Exhibit "A2` and become a pan 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. LEASE AND E A SEMENT OWNER Imes the Property to PPC: and grants to PPC a non- exclusive easement (during the tern 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 pipe=- from the Property to the appropriate, in the discretion of PPC, source oreimric and telephone facilities, TERM AND RENT A. °ibis Lease shall be for a initial terra of five (S) years beginning on ri 1996 ( "Commencement Date") at an Annual Rent of Eleven Thousand Forty Dollars (S 11,t94p), which rent shall be paid annually, in advance, beginning, on the Commcnccmcnt Dace and on each anniversary thereof (partial years prorated) to OWNER or as OWNER may otherwise direct from time to lime in w7ning at least thirty (30) days before any rent pavnent date, GROUND AND TOWER LEASE AGREEMENIT [Revised 4- 26 - 96) B. PPC is granted options to extend this Lease an these same tenses and conditions for four (4) additional five (5) year extension period(s) after the original tern expires. This Lease shall automatically bcextended for the next txtcnsion period at the end of the then- current term subject to the termination requirements in Section 5. C. The Annual Rent for each extension period shall be the Annual Rent in effect for the final year of the prior term or extension period, as the case may bit, increased by fifteen percent (15%). D. Should this Lease still be in effect at the conclusion or all the extension periods provided for herein, this Lease shall cuntinue in effect upon the same terms and conditions lohher than Annual Rent which shall be an amount equal to the Annual Rent In effect for the prior one ( I ) year period, increased by Paragraph 3.C. 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 ninety (90) days written notice of its inten €ion to su terminate before the date this Lease expires. USE OF THE PROPERTY A. PPC may use the Property for any lawful purpose, relating to consmtction, removal, replacement, maintenance, security and operation ofa communications facility„ including, without limitation, required PPC antenna array (as such antenna array maybe modified, added to or substituted from time to time) and antenna support structures, and for any other uses incidental thertio. PPC shall not use or permit the Pmperry to be used for any purposes other than described above without the writen consent of OWNER, which consent will not be unreasonably withheld. Each such antenna or antenna support structure may be configured as requested by PPC from time to time provided PPG cbra Im, pursuanl to Paragraph 4.13. , all permits and approvals required by applicable jurisdictions for such requested configuration notwithstanding the above. OWNER shall approve, disapprove or request modifications to plans for any improvements or modifications installed by PPC on the Property, which review and action shall not be unreasonably withheld or delayed. Improvement of the Property to meet PPC's needs shall be at PPC's sole expense, and PPC shall maintain such improvements to the Property in a reasonable condition throughout the term. B. OWNER acknowledges that PPG's ability to use the Property for its intended purposes is contingent upon PPG's obtaining and maintaining, both before and after the Commencement Date, all of the certificates. permits, licenses and other approvals (collectively, "Governmental Appravals") that may be required by any federal, state or local authority for the foregoing uses and improvements to the Property desired by PPC. OWNER shall cooperate with PPC in PPG's efforts to obtain such Governmental Approvals and shall take no action that would knowingly or intentionally adversely affect PPG's obtaining or maintaining such Governmental Approvals, so long as PPC is in compliance with applicable provisions of the Southlake City Charter, ordinances, and wits TERMINATION Provided PPC is not in default hereunder, if any n; the fallowing occurs. PPC shall have the right to immediately teminate this Lease by giving, written notice to OWNER of such termination. A. PPC determines, in its sole discretion, that it will be unable to obtain all necessary Govemmental Approvals for PPC intended use of and improvements to the Property desired by PPC; or B. PPG's application for any Governmental approvals necessary for PPG's use of the property and improvements desired by PPC'e is denied; or C. any Governmental Approvals necessary for PPC's use of the Property and,'or improvements to the Property, whether now or hereafter desired by PPC, arc canceled, expired, lapsed or are otherwise, terminated or denied so that PPC, in its reasonable judr determines that it will no longer be able to use the Property for PPG's intended use; of D. the Federal Communications Commission allocates the frequencies at which PPC may operate its tintennas and equipment and may from time to time change such frequencies. Any change ofthis nature drat, in PPC's reasonable judgement, renders its operation of a wireless Communications facility at the Property obsolete; or E. if PPC determines that the Property bas become unsuitable for PPC's operations due to changes in system or network design or in the types of equipment used in such operations or PPC's operations at the Propem' become unprofitable. GRt UIX AND TOWER LEASE AGRLEWNT (Revis.4 4 -26 -996) F. Provided PPC is not in default hereunder and shall have paid all rents and sums due and payable to Q' NER by PPC, PPC shall have the right to terminate this Lease at any time after ten (10) years upon on.e (1) year prior written notice to OWNER. OWNER shall have the right to term [Hate this Lease at any time after five (5) years upon pre (1) year prior written notice to PPC. Notwithstanding anything contained herein to the contrary, OWNER shall have the right to terminate this Lease at any time upon thirty (30) days prior written notice to PPC should OWt+lM in its sale discretion, detetrninc that the Tower upon which PPC'S equipment is to be installed should he removed or dismantled. Notwithstanding anything herein to the contrary, any breach, defaulter failure by PPC to perform any of the duties or obligations assumed by PPC under this Lease, or to faithfully keep and perform any of the terns, conditions and provisions hereof shall be cause For termination of this Lease by OWNER in the manner set faith in this Paragraph. OWNER shall deliver to PPC ten ( 10) days prior written notice of its intention to so teTminatc this Lease, including in such notice a reasonable description of the breach, default or failure. If PPC shall fail or refuse to cure, adjust or cornet same to the reasonable satisfaction of OIWNPR within said ten (141) days written notice to PPC, to terminate this Lease. Upon termination of this Lease, all rights, powers and privileges of PPC hereunder shall cease and terminate and PPC shall, within (10) days, vacate the Property and remove all of its improvements, fixtures and equipment. In the event PPC dries not vacate the Property within said period, OWNER may, without bejne deemed guilty of trespass and without any liability whatsoever on the part ofOWNER, enter upon and take full possession of the Property and remove any and all improvements, fixtures and equipmem not belonging to CAkNER that may be found upon the Property without being liable for damages Any termination notice rendered by PPC 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. ASSIGNMENT 8ND SVBLETTI NG A. Except to a " Partner Company," "Affiliate,' "Subsidiary" or a Subsidiary or Affiliate of a Partner Company of FPC (as defined below), PPC shall not assign this Lease, or allow it to be assigned, in whale or in part, by operation of law or otherwise or mortgage or pledge the same, or sublet the Property, or any pan thereof, without the prior written consent of O WNER such consent not be be unreasonably withheld or delayed, OV NER's consent to an migtument or sublease shall be deemed given jf OWl3'ER dpes not respond to PPC's request within ninety (90) days after OWNNER's receipt of such reouest. B. NYNEX, Bcll Atlantic, Air Touch Communications and VJ S, West are each a P rnwr Company. An Affiliate of an entity is any corporation with fifty -one percent (51 %) or snare of the stock ofwhich is owned, directly or indirectly, by such entity. A Subsidiary of an entity is any corporation eighty percent (80%) or tnore of which is owned by such entity. C. No consent by OWNER to any assignment or sublease by FPC shall relieve PPC of any obligation to be perforated b) PPC !under this Lease, whether arising before or after the assignment or sublease. The consent by OWNER to any assignment or sublease shall not relieve PPC from the obligation to obtain OWNER's express written consent to any other assignment or sublease. D. Any sale or other transfer, including by consolidation, merger Crr reorganization, of a majority of die wvt ng sLOck of PPC, if PPC is a corporation, or any sale or other transfer of a majority in interest (whether of profits, losses, capital or wo(tng power) or a majority of the persons composing the managers of the partnership, if PPC, is a partnership, shall not be an assignment for purposes of this Paragraph fi. FIRE OR OTHER CASUALTY A. Ifthe Tower, or access to it, is damaged or destroyed by a casualty, OW4NER shall deliver written notice to PPC within twenty (20) days after receipt of notice from OWNEP% insurance company, which notice From OWNER sets forth OANER'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 PPC, 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 OWW'NER elects to repair, then OWNER shall promptly commence appropriate repairs (to N diligently prosecuted to completion entirely at O WNER's expense), and this Lease shall continue in full force and effect. GROUND AND TOWER LEASE AGREEMENT (Revised 1.16.96) B. Notwithstanding anything contained herein to the contrary. OWNER is under no dun• or obligation to repair the Tower in a manner that would accommodate PPG's equipment or antenna array In the event that following repairs, the Tower is no longer suitable for PPG's intended uses, PPG's sole remedy shall be to terminate this Lease. C. if OA NER (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} notiftes PPC of OW NER's intention not to repair, restore and+or reconstruct the Tower, or fails to deliver to PPC the written notice required under Paragraph 7.A. within twenty (20) days, then PPC may mmediately cancel this Lease by giving written notice *fits election to cancel to OWNER. INDENL41FICATION AND INSURANCE A. PPChereby agrees to indemnify and hold OWNER harmless from and against any and all claims of liability for personal injury or proper damage to the extent that they result frnm ar arise out of (i) the acts or omissions of PPC, its agents and employees in, on or about the 'Tower, including the Property, excepting however, such claims or damages as may be due to OF caused solely by the acts or omissions of OWNER, its employees or agents, and/or (ii) PPG's breach of any term or condition of this Lease on PPG's part to be observed or performed. B. OWNER hereby agrees to indemnify and hold PPC harmless from any against any and all claims of liability for personal injury or property- damage to the extent that they result from or arise out of (j) the acts or omissions of OWNER, its agents and employees in, on or about the Tower, including the Property, excepting, however, such claims or damages as may be due to or caused solely by the acts or omissions ofowner, its employees ar agents, artd.W (h) OIyNER's breach of any term or condition of the Lease on OWNER's part to be observed or performed. C. PPC shall provide OWNER with a certificate of insurance, issued by an insurance company licensed to do business in the state in which the Tower is located indieatitnglhat PPC tarries comprehensive general liability insurance with limits of liability thereunder of not less than: bodily injury: 5500,000 for injury to any one person and S 1,0(x0,000 for all injuries sustained by more than one person in any occurrence; property damage: 5I.000,OW for damage as a result of any one accident. Such insurance shall name OWNER as an additional insured with respect to the Property PFC will provide OWNER with arenewal certificate within ten (10) business days ofOWNER's request for such certificate. Any insurance required to be provided by PPC under ih,s Paragraph 8 may be provided by a blanket insurance policy covering this the Property and other location$ of PPC, provided such blanket insurance policy complies with all of the other requirements of this Lease vviih respect to the type and amount of insurance required. PPC may also fulfill its requirements under !his Paragraph 8 through a program of self-insurance, subject to approval by OWNER, which approva! shall not be unreasonably withheld. If FPC ciccts to soil= insure, then PPC shall furnish OWNER with a letter stating that there is a self-insurance program in effect that provides for the same, or greater, coverage than required of PPC herein. All insurance policies fumished under this provision shall name OWNER as an additionat insured. PPC agrees to furnish OWNER wit oeniftcaie$. of insurance certifying that PPC has in force and effect the above specified insurance. D. Each h8xard insurance policy carried by or on behalf of PPC insuring PFC's antennas and equipment located on OT about the Propem shall provide standard extended coverage, including without limitation, coverage against losses caused by fire. The parties further agree and hereby release each other with respect to any claim (inrtluding a claim for ncgligence)which the other parry may have against such party for loss, damage or destructioll of,, or liability for damages to, the property of the other occurring during the term of this Lease, as same may be extended, and normally covered under a fire insurance policy with extended coverage. Notwithstanding anything contained in this Leasc to the contrary, the provisions of the Subparagraph B.D. shall control. UTILITIES PPC shall be responsible directly to the serving entities for all utilities required by PPG's use of the Property; however, OWNER agrees to cooperate with PCC in its efforts to obtain utilities from any location provided by the OWNER or the servicing utility. Should electric power be provided by OWNER, PPC will install an electric meter and PPG's usage shall be read by OWNER or, at OVdNER`S option, by PPC, on an annual basis and the cost of electricity used by PAC shall he paid by PPC to OWNER annually as a payment separate from rent and shall be computed at the then - current public utility rate. GROLIND AND TOWER LEASE AGREEMENT (Revised 4- 26-96) W IQ. RIGHTS TO EQUIPMENT CONDITION ON SURRENDER A_ PPC's antennas and equipment shall remain persona] to and the property of PPC. At the termination or expiration of this Lease, if notice is received from OWNER, PPC shall remove its antennas andior equipment PPC shall repair anN damage caused by such removal, and shall otherwise surrender the Propem• at the expiration of the term, as same may have been extended, or earlier termination thereof, in good umdition, ordinary wear and tear, damage by fire and other casualty excepted. Any of PP'C's equipment or other property that has not been removed from the Properyy at the time of Lease termination shall be deemed ahandaned by PPC and OWNER shall be free to dispost of same in anv matuier OWNER chooses and without any liability to PPC therefor. B. Any claims relating to the condition of the Property must be presented b} OWNER in writing to PPC within one hundred eighty (180) days after die removal of antennas and equipment by PPC or OWNER shall be deemed to have irrevocably v; aived anv and all such claims. 11. PPC DEFAULTS A. The occurrence of anyone or more of the following events shall constitute an "Event of Default" hereunder by PPC: (t) The failure by PPC to make any payment of rent or any other payment required to be made by PPC hertundtr, as and when due, when: such failure shall continue for a period of tea (14) days after written notice thereof is received by PPC from CJ WNER_ (2) The failure by PPC to observe or perform any ofthe covenants or provisions ofthis Lease to be observed or performed by PPC, other than specified in Paragraph I I. A. (1), where such failure shall continue for a period of ten (14) days after written notice thereof is received by PPC from OWNER; provided however, that it shall not be deemed an Event of Default by PPC if PPC shall commence tocure such failurc within said ten (lit) day period and thereafter diligently prosecutes such cure to completion. B. Ifthcrc occurs an Event ofDefaul; b; PPC, in addition to any other remedies available to O'UT'ER at law or in equity. OWNER shall have the option to terminate this Least and all rights of PPC hereunder. 1:, !NOTICES All notices hereunder must be in writing, and, unites otherwise provided herein, shall be deemed validly given if sent by certified mail, return rcccipt requested, addressed as follows (or to any other mailing address which the parry to be notified may designate to the other party by Such notice) or as otherwise provided under applicable state law_ Should OWNER. or PPC have a change of address, the other party shall immediately be rwtified as provided in this Paragraph ar such change, Unless OWNER otherwise specifies in writing, rent checks from PPC shall bt sent to the person listed below to whom notices are sent. PFC: PrimeCo Personal Communications, L.P., a Delaware timlted panotrship Property Manager Address: 6 Campus Circle, Westlake, Texas 76262 Telephone Numher: (817) 258 -1444 With a copy to: Legal Department Address: 6 Campus Circle Westlake, Texas 76262 OWNER: City of Southlake, Texas Attn: Curtis E Hawk, City Manager Address: 667 Notch Carroll Avenue GROUND AND TOWER LEASE AGREEMEN (Revised 4- 26.96) Southlake, Texas 76U9A Telephone Number: (817}4$1 -5581 Extension M2 13. SALE OR TRANSFER BY OWNER Should OWNER, at any time during the term of this Lease, sell, lease transfer or otherwise convey all or any part of OWNER'S Property to and transferee other than PPC, then such transfer shall be under and subject to this Lowe and all of ?PC's rights hereunder 14. HAZARDOUS SUBSTANCES A. PPC represents, warrants and agrees that it will conduct its activities on the Property in compliance with all applicable Environmental Laws (as defined in attached Exhibit "B "). OWNER represents and warrants that it has received no notice of, nor has any knowledge of, amy violations of any Environmental Laws affecting the PropeM OW ER represents and warrants that, to the best of its knowledge. the Property has never been usee for the use, generation, storage or disposal of hazardous Substances as defused in Exhibit "E" attached hereto_ B. OWNER shall be responsible For, and sliall promptly conduct any investigation and rtmediation as required by any Envirotunental Laws or common law, oral] spills or other releases of Hazardous Substances, not caused by PPC. that have occurred or that may occur on the OWNER's Properly, arising from OWNER's activities on the Property. C. PPC agrees to defend, indemnify and hold OWNER harmless from and against any and all claims, causes of action, demands and liability includ4 but not limited to, damages, costs, expenses, assessments, penalties, ftncs, losses, judgments and attorney's fees that OU NER may suffer due to the existence or discovery of any Hazardous Substance on the OWNER's Property or the migration of any Hazardous Substance to other properties or released into the environment arising from PPC's activities on the Property during the term of this Lease. D. OWNER agrees to defend, indemnify and hold PPC harmless from and against any and all claims, causes of action, demands and liability including, but not limited t4, damages, costs, expenses, assessments, penalties, fines, losses, judgments and attorney's fees that PPC may suffer due to the existence or discovery of any Hazardous Substance on the Property or the migration of any Hazardous Substance to other properties of released into the environment, arising from OWNER's activities on the OWNER's Property during the term of this Lease. 15, CONDEMNATION A. hi the event the whole ofOWNER'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. B. In the event any portion of the Property, including without limitation the Tower, shall betaken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then O,%rKER agrees that PPC may use m&or construrt upon an alternative pumun of MANER's Property which is equally suitable for PFC's pusp[mes, provided such space is available. The exact siteto which PPC may relocate will be determined b% 01L''hERt, and it may he upon any portion of OUINER's Property (or other property owned or controlled by OWNER) provided that PPC reasonably approves the site as equally suitablc for PFC's intended uses. OWNER will designate a site to which PPC may relocate prior to the taking, condemnation or , sale. In the event no alternative portion ofthe ON NER's Property is equally suitable for the purposes of PPC, then PPC may terminate this Lease. C. OWNER shall receive the entb condemnation award for land, Tower and such other improvements as are paid for by f WNTR. and PPC hereby expressly assigns to OWNER any and all right, title and interest of PPC now or hereafter arising in and to any such sward. PPC shall have dsc right to recover from such authority bur not from OWNER, any compensation as may be awarded to PPC on account of the leasehold interest of PPC now or hereafter arising in and to any such award. FPC shall have the right to recover from such authority, bur not from OWNER, any compensation as may be awarded to PPC on account of GROLND AND TOWER LEASE AGREEMENT (Rcvrsed 4.25-96) the leasehold interest, moving and relocation expenses, and deprecation to and removal of the personal property and fixtures of PPC. I6. LIENS PPG shall keep the Property free from any liens arising out or any work performed.. materials furnished, or obligations incurred by or for PPC. PPC shall, within twenty (20) days following the impositio7l of any such lien, cause the same to be released of record by payment or posting of a proper bond. No work which OWNER pemrits PPC to perform on the Property shall be deemed to be for the use and bent fit of OWNER so that no mechanics or other lien shall be allowed against the estate of O WN>rR by reason of its consent to such work. OWNER shall have the right to post notices that it is not responsible for payment for any such work. 17. TAXES PPC shall be livable for and shall pay to the applicable taxing authority if billed directly to PPC, or to OWNER if billed to OWNER, upon thirty (30) days prior, written notice froth OWNER, anti• and all taxes and assessments levied against any personal properry or trade Or other fixtures placed by PPC in or about the Property. PPC shall par as additional rent any increases in real p taxes levied against OWNER's Property ", including the Tower, as a result or improvements constructed by PPC on the Propem PPC will not be responsible for any increases in real propertw taxes which are a result of reassessment of O WNER's Property • due to any We or transfer of ownership thereof. is. QUIET ENJOYMENT AND NON - INTERFERENCE A. OWNER warrants and agrees that PPC, upon paying the rest[ and performing the covenants herein provided, shall peaceably and quietly have and enjoy the Proptrt�. 13. PPC covcnants and agrees that PPC's equipment, its iursiallauon, uperation and maintenance will: (1) Not interfere with the operation of existing radio equipment at the Tower, whether operated by OWNER or other operators prior to installation of PPC's antennas and+'or transmission lines on the Tower. PPC shall coordinate with OWNER and all other operators of radio equipment at the Tower to insure that PPC's frequencies and antenna locations will be compatible with said existing radio equipment . In addition, in the event OWNER desires to install additional radio equipment at [he water tower sitc in the future, PPC agrees to take all reasonable measures to eliminate any interference with said radio equipment, however, in no event shall PPC be rtquired to move its antennas or equipment on the 1QWCT site or the equipment building. In the event there is harmful interference to said electronic equipment, PPC will promptly take all steps to eliminate said harmful interference with ten (10) days after notice from OWNER or such other operator to PPC advising of the interference. If said inlerference carunot be eliminated within thirty (301 days of notice thereof, PPC 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 PPG shall remove its building and equipment from OW NER's Property and this Lease shall thereupon be terminated. (2) During the term of this Lease or any extension theroof, OWNER shall not permit other tenants, to place or operate any equipment which would interfere with PPC's equipment or operations on the OWNER's Property or PTopem. OWNER shall cause that all subsequent tenants on the Tower to first coordinate u ith PPC to ensure that their frequencies and antenna locations will be compatible with PPC's and to agree to a clause similar to this Paragraph S - A. herein, promising to immediately eliminate harmful interference if said tenant's radio equipment should interfere with that of PPC herein. C. Comply with all applicable mics and regulations of the Federal Communications Commission, and electrical codes ofCiry of Southlake and for State of Texas, Under this Lease, the OWNER assumes no respOnsi.bihm for the licensing„ operations and/or maintenance of PPC's equipment, antennas, transmission lines or anacht ents- D- This Paragraph IS is made subject to Paragraph 19.F. GROUND ANU - 1 OWER LEASE AGREEMENT (Revised 4- 26-96) 19. COORDINATION OF OPERATION A. OWNER agnes (i) to use its best effort to minimize inconvenience to PPC by using its best efforts not to cause or permit am inierrrptioo or interfere with the operations of PPC's antennas or equipment, during the hours of 4:06 p.m. to 7:00 p.m. on any weekday, and (ii) to give PPC notice of any rtWirs, 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 PPC's wireless communications facilirv, antennas or equipment. B. Only qualified and adequately insured employees, agents, contractors or persons under PPC's direct supervision will be permitted to climb the Tower and to install, Iaintain, or remove PPC's antennas andior equipment from the Tower. OWNER rcia m 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 repay and maintenance or for any other purposes that do not interfere with PPC's use of the Tower, and so long as PPC complies with the provisions of Paragraph 19 of this Lease. C. OWNER shall not permit any person, including without limitation any contractor, employee, agent tenant, or invitee, to work within a ten (10) foot radius of PPC's antennas unless PPC is notified prior to such activity. OWNER agrees to give PPC reasonable advazrce written notice (cyccpl in the case of emergency where advance written notice cannot be reasonably given, in which event, OWNER shall give PPC telephonic notice (at 1 -$17- 258 -1006) 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 OWNER determines that any equipment or operation of PPC 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 01i'NER's facilities OF OWNER's equipment on the Tower, then PPC shall have thirty (30) days within which to correct such radio interference, pursuant to Paragraph I I.A. (2) hereof. Unless such interference is with OUNER's emergency communications then such interference shall he corrected immediately or Itrntinaicd. E. It is further understood and agreed that OWNER may perform reasonable routine maintenance, painting, etc. of the Tower without compensation or liability to PPC, even though such maintenance and painting may causc interference with PPC's operations. OWNER shall notary PPC at least sixty (60) days prior to any scheduled maintenanee Or painting on the Tower that will be likely to interfere with the operation o`PPC's equipmen: and allow PPC to construct and operate temporary facilities on OWNER's Property. OWNER shall not be required to notify PPC prior to performing any emergency maintenance on the Tower_ 20. LIGHTING OF ANTENNAS OWNER hurcby agrees that, if because of PPC's operations on the Property arts laws DT regulations of the Federal Aviation Adminisnadon, Federal Communications Commission or any other relevant governmental agency or body require or recommend that PPC's antennas and'or the Tower be lit and!or marked, PPC may install and maintain such lighting and markings. In no event, however, shall PPC he responsible for the installation or maintenance of any lighting or markings required by the operations of OWNER or any other tenant in the Tower. OWNER will permit PPC access to all portions of the Tower that PPC may need in order to check and replace such required or recommended lighting or marking. 21. BROKERS OWNER and PPC represent to each other that they have not negotiated with any real estate broker in connection with this Lease. 22. ESTOPPEL CERTIFICATES A. O WNEF at the reques! of PPC, shall provide PPC with a certificate stating: (1) whether OWNER has any claim against PPC and if so, stating the nature of such claim; (2) that OWNER recognizes PPC's right to PPC's antennas, equipment and other property; (3) that PPC has the right w remove PPC's equipment and other property from the Property notwithstanding that same may be considered a fixture under local law; and {4} that OWNER has no interest in and disclaims any interest to PPC's GROUND AND TOWER LEASE AGREEMENT (Revised 4_36 - %) equipment and other property H. PPC, at the request of OWNER, shall provide OWNER with a certificate stating; (1) that this Lease is untnodified and in full Force and effect (err, if there has been any modification, that the same is in full farce and effect as mcclified and stating the modification); (2) whether or not, to PPG's knowledge, there are then existing any .set -offs, or defenses aga nst the enforcement of any of the agreement, terms, covenants or conditions hereof upon the part of PPC to be performed or complied with (and, if so specifying the &tune); and (3) the dates, ifany., to which the rent has been paid it advance. 23. MISCELLANEOUS PROVISIONS A This Lease is not a franchise. This agreement does not prevent the Q%kNSR from seeking to implement a franchise on PPC, but PPC does not acknowledge that the OWNER has a right[ to franchise PPC or waive any right it might have to contest it franchise. B. OWNER warrsnu and agrees that OWNER is seized of good and sufficient title to and interest in the Property and has full authority to enter into and execute this L mst and that here are no undisclosed Eiens, judgment& or impediments of title an O' Property that would affect this Lease. C. This Lease, including attached exhibits which are hereby in by referemoe, incorparales all agreements and understandings between OWNER and PPC, and no verbal agreements or understandings shall be binding upon either ONAWER or PPC, and ani addition, variation, or modification to this Lease shall be ineffective unless made in writing and signed by the parties. R. OWNER agrres that OWNER'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, lifelsaferv, disability and other laws, codes and regulations ofany applicable governmental or quasi - governmental authority. All such compliance shall be accomplished at OWNER's sole cost and expense. Except for improvements made by PPC, OWNER, at its sole cost, shall maintain in goad condition and repair, the Tower and other improvements upon which the Property is located. PPC agrees that PPG's prnpern and all equipment and improvements erected hereunder shall comply, and during the term of this Lease, shall continue to comply with all building, lifea'safetq, disability mid other laws, codes and regulations of any applicable govetttt rental or quasi - governmental authonty. All such compliance shall be accomplished at PPG's sole cost and expense. PPC, 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 ofinstallation. E- This Lease and the performance hereof shall be governed- interpreted, construed and regulated by the laws of the Staic of Texas- Any litigation concerning this Lease shall be conducted in Tarrant County, Texas and the panics 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 panics agree that all of the provisions licreuf shall be construed as both covmans and conditions the same as if the wards importing such covenants and Conditions had been used in each separate paragraph. H. The partiesacknowledgethat each has had an opportunity to review and negotiate this Lease and have executed this Lease nnly after such review and negotiation. The language of each pan ofthis Lease shall be construed simply and according to its fair meaning, and this Least shall not be construed more strictly in favor or against either party. I. At OWNER's option, this Lease shall be subordinate to any mortgage by OWNER which from time to tune may encumber all or any part of tine Property, provided that every such mortgagee shall recogrtiza (in writing and in a form acceptable to PPG's counsel) the validity of this Lemc in the event of a foreclosure of OWNER'S interest and also ?PC's right to remain in occupancy and have access to the property as long as PPC is not in default nF this Lease. PPC shall execute whatever instruments may reasonably be required to evidence this subordination. If, as of the date of execution of this Lease, there is any deed of trust, ground lease or other similar encumbrance affecting WN NER's Property, OWNER agrees to use its best efforts in cooperating with GROUND ,qND TOWER LEASE AUREE,MENT (Revised 4 -M -46) PPC to obtain from the holder of such encumbrance an agreement that PPC shall not be disturbed in its possession, use and enioymcnt of the Property. J. If any portion of this Lease N declared by a court of competent jurisdiction to be invalid or uncnforceabie, then such portion shall be deemed modified to the extent neees$ pry+ in such court's opinion to render such condition enforceable and, as so modified, such portion and the balance ofthis Lease shall continue in full force and efFect_ K. If either party institutes any action or proceeding in cow to enforce any provision hereof, or am action for damages for any alleged breach o` any provisinn hereof, then the prevailing pam in such action or proceeding shall be entitled to receive from the non - prevailing party such amount as the court may adjudge to be reasonable attorneys' fees for the services rendered to the prevailing party, together With its other reasonable litigation expenses. L. In addition to the other remedies provided for in this Lease, OW'NER and PPC shall be entitled to immediate restraint by injunction of any violation any ©f thr covenants, conditions, or provisions ofthis Lease. M. The captions of the paragraphs of this Lease are for convenience of reference only and shall not affect the interpretation ofthks Lease. IN WITNESS WHEREOF, OWNER sad PPC have duly executed this Lease as ofthe day and rear first above wTh1cn. PPC: MmcCo Personal Communications, L.P., a Delaware limited partnership BY� _ tiara Dougl Athas Its: Due or -Site Devclopmeat OWNER: City ofSouthlake,Tex3s J By': Name: Curti S E. Hawk Its: Cit Manager Tax No: GROUND AND TOWER LEASE AGREEMENT (Rinsed 4.26•96) 10 NOTARIES — GROUND AND TOWER LEASE AGREEMENT STATE OF TEXAS COUNTY OF - T - n R Rk 0 T The foregoing insummom was acknowledged befoTee me thi � day of & r by tsi� �2aS hY� �}rreC�i" of _ wtru4hltd mil. on behalf of re- Pamership. Herlsbe is personally known to me. (OFFICIAL NOTARY SIGNATURE) •' AHI fNE 0. P DQSTEFMEYER NOTARY PUBLIC- STATE. OF 745XA S � '; NY1`dMFasslpl [5(910.€5 Apr119. 2WO (PRINTED, TYPED OR STAMPED NAME OF NOTARY) MY COMMISSION EXPIRES: STATE OF TEXAS COUNTY OF The foregoing instrument w as acknowledged before me this day of / 19%, by I .g 5— a �' of KIIV L. BUSH - Put STICrE 11[i O OF ?E X 7f+i5 a My Coma. EWxp. CSR7M r (O CIALNOTARYSIGNAT[JRE) NO AIiY PUBLIC -STATE OF {PRINTED, TYPED OR STAMPED NAME OF NOTARY) MY COMMISSION EXPIRES: GROUND AND TCAVER LEASE AGREEMMT (Revised 4- 26.96) EXHIBIT L'AT?7 LEGAL DESCRipTION OF OWN1 RrS PROPERTY SITE ID: L0034 That certain parcel or parcels of land heater; ill the City of Southlake, County of Tarrant. State of Texas, more Fardcuiarly described as follows, to-wit BEING 1 0.00 acres of land Out of the L. B. G. Hail Survey; Tarrant County. Texas and described by metes and bounds as follows: BEGINNING at an iron pin 25.0 feet West and 943.2 feet South of the Northeast comer of the L. 13. G. Hall Survey, said point being in the West line of County Road No. 3016; -THENCE South, along the West line of said road, 335.6 feet to iron pin for corner, THENCE South 99 degrees 34 minutes West, 1296.6 feet to iron pia for corner, THENCE North I degree 07 minutes West„ along fence line, 335.6 feet to iron pin, for corner THENCE North 89 degrees 34 minutes Fast, I303.2 feet to the POW OF SEG24NING, and containing I0.00 acres of land, approximately; SAVE AND EXCEPT anY pa.-t or portion thereof in the use or occupancy of any public road or highway. Ini: aled tT AWl1LL1/Wr5amjD IW5MSy GROUND AND TOWER LEA5E AC.REEMEry i EXHIBIT « , u» DEPICTION OF PROPERTY SITE ID: R0034 The leased Property, as depicted by cross - hatching in the drawing below, is situated within Owner's Property as described in Exhibit "AI ". Li S o w 4 t s iF I $ i I TO 13E REPLACED UPON COMPLETION OF SITE SURVEY EXHIBIT "A3" PCS'S SPACE ON TOWER SITE ID.• Roo 34 Antennas will be mounted on the Tower located on Owner's Property described in Exhibit "AI", at a height of 77', and oriented at 0, 120` and 240 r an Tenn, EXUIBIT "V Ground and 'I Ner Lease Agreement dated , 19W between the City Of Scuthlake, as Owner and P?C nvironmental Laws As used in this Lease "@avironmcntaP I..aws" means 211 fedo aws, rat, state and late] envirpnrnentai or Perrtlsrs p erta i n i ng c ,talcs, regulations, 10 the 4rdinancrs. judicial or adrnin sirativc decrrxs. orders, decisions, authorizations tauting to protection Ofhurnan health and/or the environment, including, but not limited LO the R=Ourcc C7rtstrvauon and Recovery Act. 42 U.S,C. §§ 690I. �er seq., the Clean Air Act, 42 L.S.C. §§ 7401, rr seq.. the Sederal Wa[cr Pollution C:7111r0l A.cr, 33 U_S.C. ¢§ 1251, cr seq., dic Emergency Pl annin g and Community Right to Know A 42 U_S.C. §§ 101, er 1 seq., the Com Environrnental Reaporse, Compe and Liability Acz, a2 U.S.G. §§ 96(71, rrsrq CYle SO XAC Substances '�4rltrgl AGt 15 U_S.C, §§ 2601, U seq., the toil P oll ution Control Act. 33 US.C. §§ 2701, cr seq., and Texts superfund laws, or any other comparable local, s=ate or Federal statute or ordivauce perta tp Llic envirorunenc or natural resagtri-s and all rcgulatioru pertaining thereto. This defini include= all Federal, state or local Sand us laws dealing with cnvirotunerl[al Sensiti vity including, but act limited to, laws regarding wetlands, steep slopes aquifers, critical or sensitive areas, shorelines, fish and wildlife habitat, or historical or archeological signi8cancr. As used in this Lease. "Hazardous substance" means any harirdaus oe toxic subst lcrs a., 197 defined by the Cornprehc live Environmtntal Response, Conlpensdtion and Liability Aet, as amended X76. 6 time to tittle; any hazardous wash as dcfintd by the Resource Conservation and Recovery Act of a s azncndtxi from time t® tirnct any and all material waste or substance defined as hazardous pursumt to any federal, state or local laws Or regttlatiotu or Order; and any substance w tech rtes regulated by any federal, state or IocaI govertuncutal authority; hirls or any Oil, petroleum products and dlcir Rate Study of Comparative DFW Cities for Communication Antennas rates from the most recent contracts in each city City Yearly Rate Rate Increase Date of Contract Company Name Bedford $ 30,000 15 % 15yrs or CPI, whichever is greater Aug -02 AT &T Colle ville $ 16,680 5 %/ r Sep-01 Web Link Wireless Co ell $ 24,000 12 %/5 rs Jan -02 Sprint Euless $ 18,000 12 %/5 rs Flower Mound $ 14,400 CPI/ r Frisco $ 27,000 15 %/3 rs Apr-02 AT &T Grapevine $ 18,000 15 %/5yrs or CPI, whichever is greater Aug -01 NEXTEL Hurst $ 18,000 15 %/5 rs Ma -01 Cin ular SWB Keller $ 18,000 0 Mar -01 VoiceStream North Richland Hills $ 21,000 3 %/ r Jan -02 Verizon Plano $ 20,400 3 %/ r Jan -02 AT &T Wireless Richardson $ 14,400 4 %/ r I Trophy Club 1 $ 11,040 15 %/3 rs Jul -02 AT &T Wireless Westlake I N/A $ 250,920 13 Average annual rate= $19,302 Southlake Water Towers Bicentennial - - I - Water Tower e� Dove Tower located at 100 West Dave Road Bicentennial Park Tower located at 200 N. White Chapel Blvd. Miron Tower located at 320 Miron Dr. Florence Tower located at 635 Brewer 5t.