HomeMy WebLinkAboutContract 26192 CITY SECRET
CONTRACT NO Y cl �
CITY OF FORT WORTH
COMMUNICATIONS FACILITY LICENSE AGREEMENT
(WATER TOWER)
This COMMUNICATIONS FACILITY LICENSE AGREEMENT ("Agreement") is
made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule
municipal corporation organized under the laws of the State of Texas, acting by and through
Mike Groomer, its lin uthorizg� Assistant City Manager, and COOK
7CNLET/VOICESTREAA. � �. .�.Yk `.,icensee"), a Delaware limited liabilit� com�par�y
acting by and through Chri's W1146-Aht , the duly authorized ir2Lb
of VoiceStream PCS BTA I Corporation, Inc., a Delaware corporation atYd Licensee's duly
authori ent.
Recitals
The following statements are true and correct and form the basis of this Agreement:
A. The City owns a water tower known as the Calmont Elevated Tank ("Tower") which is
located on a parcel of improved land owned in fee simple by the City ("Owned Premises")
located at 6600 Calmont Avenue, Fort Worth, Texas.
B. The City owns and operates, among other things, certain communications facilities on the
Tower.
C. Licensee wishes to use a portion of the Owned Premises and space on the Tower as
described in this Agreement in order to enable Licensee to erect, operate and maintain certain
communications equipment of Licensee, and the City is willing to allow such use on the terms
and conditions set forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the benefits, promises and mutual covenants
contained herein, and for other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged by both the City and Licensee, the City and Licensee agree as
follows:
1. PREMISES.
In accordance with the terms and conditions set forth in this Agreement, the City hereby
grants to Licensee the use of the following portions of the Owned Premises:
Water Tower CFLA between City of Fort Worth
and Cook InleWoicestream PCS,L.L.C.(Calmont Tower)
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1.1. Space on the Tower for Licensee's directional or omni antennae, connecting
cables and related appurtenances ("Antennae Facilities") as authorized in writing by the
City's Water Department Director or designated representative ("Director"); and
1.2. Space on the Owned Premises for Licensee's equipment shelter ("Equipment
Shelter"), power and any necessary utilities, as authorized in writing by the Director.
All portions of the Owned Premises that are used by Licensee under this Agreement shall
hereinafter be referred to as the "Premises". References in this Agreement to the Owned
Premises shall be construed to include the Tower and the Premises.
2. TERM.
2.1. Initial Term.
Unless terminated earlier as provided in this Agreement, the initial term of this
Agreement shall be five (5) years, commencing on the date of execution ("Effective
Date") and expiring at 11:59 P.M. on the fifth anniversary of the Effective Date ("Initial
Term").
2.2. Renewal Terms.
Unless the City or Licensee exercises a termination right as provided in this
Agreement prior to the expiration of the Initial Term, and provided that the City, in its
sole discretion, wishes to grant Licensee the right to use the Premises at the time, the City
shall give Licensee two (2) consecutive rights of first opportunity to renew this
Agreement on terms and conditions and at a License Fee or other compensation
prescribed by the City at the time, for two (2) additional consecutive terms of five (5)
years each (each a "Renewal Term"). In order to have this priority, Licensee shall
provide the City with written notice of its desire to continue to use the Premises not less
than ninety (90) days and not more than one hundred twenty (120) days prior to the
expiration of the term then in effect. If Licensee fails to renew this Agreement in
accordance with these procedures for the first Renewal Term following the Initial Term,
or if this Agreement is terminated during the first Renewal Term, Licensee shall
simultaneously forgo its right of opportunity to renew this Agreement for a second
Renewal Term.
3. LICENSE FEE.
3.1. License Fee for Premises.
On or before the Effective Date of this Agreement Licensee shall pay the City an
annual license fee ("License Fee") for use of the Premises between the Effective Date
and September 30, 2000 in the amount Twenty-four Thousand Dollars ($24,000),. for the
Water Tower CFLA between City of Fort Worth
and Cook InletNoicestream PCS,L.L.C. (Calmont Tower)
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first antenna placed on the Premises and Two Thousand Four Hundred Dollars ($2,400)
for each subsequent antenna that the City allows Licensee to place or install on the
Premises, which License Fee shall be prorated in accordance with the number of days
remaining until September 30, 2000. Thereafter, this License Fee shall be adjusted in
accordance with Section 3.2. If Licensee's Antennae Facilities consist of an array or
interconnection of antennae, the City shall determine, in the City's sole discretion and
judgment and consistent with the City's previous decisions in similar situations, whether
such Antennae Facilities consist of one antenna or more than one antenna. Nothing in
this Agreement shall grant Licensee the right to place or install additional facilities or
equipment on the Premises without the City's advance written consent.
3.2. Adjustments to License Fee.
During the Initial Term and any Renewal Term (unless the City has specified a
different License Fee and adjustment schedule for a Renewal Term in accordance with
Section 2.2 of this Agreement) the License Fee shall increase on October 1st of each
year, beginning October 1, 2000, by three percent (3%) over the previous year's License
Fee.
3.3. Due Dates.
The due dates for payment of License Fees under this Agreement are established
in accordance with the City's fiscal year, which begins on October 1 st of a given year and
ends September 30th of the following year ("Fiscal Period"). Therefore, except for the
first License Fee payment, all annual License Fee payments shall be due in full, at the
appropriate address for the City set forth in Section 24 of this Agreement, on or before
the October 1 st commencement date of a respective forthcoming Fiscal Period.
3.4. Late Fees.
If Licensee fails to pay any License Fee by the respective due date, Licensee shall
pay the City a late payment fee of ten percent (10%) of the amount of the License Fee
outstanding in addition to the License Fee then due. Moreover, any License Fee that
Licensee owes the City and that is past due shall bear interest until paid in full at the rate
of two percent (2%) per month or the highest rate permitted by applicable law, whichever
is less.
4. DEPOSIT.
Upon the execution of this Agreement, Licensee shall remit to the City a
maintenance/damage deposit ("Deposit"), in cash, equivalent to one-twelfth (1/12) of the
amount of Licensee's annual License Fee. Licensee will not be entitled to any interest on the
Deposit. The City may draw from the Deposit to perform maintenance or repairs to the Premises
that are necessary because of Licensee's use of the Premises if Licensee fails to do so within
thirty (30) days of written notice from the City. If the City terminates this Agreement for
Water Tower CFLA between City of Fort Worth
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oicestream PCS,L.L.C. Calmont Tower
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nonpayment of a License Fee or any other breach or default as provided hereunder, Licensee
understands and agrees that it shall forfeit the entire Deposit. Otherwise, the City will refund to
Licensee any unused portion of the Deposit within thirty (30) days following the date that
Licensee vacates the Premises.
5. USE OF PREMISES.
Licensee may use the Premises, in accordance with the provisions and conditions of this
Agreement and good engineering practices, solely for the installation, operation and maintenance
of its Antennae Facilities; for the transmission, reception and operation of a communications
system and uses incidental thereto; and for the storage of related equipment. Licensee hereby
agrees that its use of the Premises shall not interfere with the use of the Tower, the Owned
Premises, related facilities or other equipment of the City or other licensees, tenants and users as
such use exists as of the date of execution of this Agreement. Licensee acknowledges that this
Agreement does not convey to Licensee or successors in interest any exclusive rights
6. INSTALLATION OF EQUIPMENT, CONSTRUCTION AND IMPROVEMENTS.
6.1. In General.
Licensee may not make any modification, renovation or improvement to or
engage in any other construction activity (collectively "Improvement") on the Premises
or Owned Premises unless the City provides advance written consent to Licensee. In
order to obtain such consent, Licensee shall submit a written request to the City, which
shall include all plans and estimates for the costs of the proposed Improvement, to the
Director. All plans, specifications and required work for the proposed Improvement must
conform to and be in accordance with all applicable and then-current federal, state and
local laws, ordinances, rules and regulations. If Licensee intends to employ or engage a
contractor or other third party to perform any work on the proposed Improvement,
Licensee shall supply the City with the name of such party and must obtain the City's
advance written approval before it authorizes such party to work on the Premises or
Owned Premises.
6.2. Documents.
Licensee shall supply the Director with as-built drawings of the Antennae
Facilities and any other improvements within thirty (30) calendar days following their
installation on the Premises. These as-built drawings shall show the actual locations of
all equipment and improvements. Licensee shall also provide the City with a complete
and detailed inventory of all Antennae Facilities, equipment and personal property that it
intends to place on the Premises.
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6.3. Equipment Upgrade.
Licensee may update or replace the Antennae Facilities from time to time with the
prior written approval of the City, which approval shall not unreasonably be withheld or
delayed, provided that (i) the replacement facilities are not greater in number or
materially greater in size than the existing Antennae Facilities; (ii) that the installation of
such facilities does not structurally impact the Tower any more than the existing
Antennae Facilities; and (iii) that the City has provided advance written consent to any
change in the location of such facilities on the Tower.
6.4. Bonds Required of Licensee and Licensee's Contractors.
In the event that Licensee or a contractor of Licensee wishes to undertake any
Improvement on the Premises, other than the mere installation of equipment that is not
built into or in any other manner affixed to or incorporated into the Tower, Licensee and
Licensee's contractor, if any, shall obtain payment and performance bonds in accordance
with the Texas Government Code, Chapter 2253, as amended, in a form approved in
writing and in advance by the City ("Bonds"). Licensee's Bonds shall guarantee (i)
satisfactory completion of the proposed Improvement; (ii) compliance by Licensee with
all requirements, terms and conditions of this Agreement during the Improvement
project; and (iii) full payments to all persons, firms, corporations or other entities with
whom Licensee has a direct relationship relating to the Improvement project.
If Licensee uses a contractor to work on the Improvement, the contractor's Bonds
shall guarantee (i) the faithful performance and completion of all work on the
Improvement covered by the contract between Licensee and its contractor in accordance
with the plans and specifications approved by the City and (ii) full payments for all
wages for labor and services and of all bills for materials, supplies and equipment used in
the performance of that contract. The contractor's Bonds shall name both the City and
Licensee as dual obligees. Licensee's contractor shall execute and deliver its Bonds to
Licensee. Licensee shall provide the Director with copies of all Bonds prior to the
commencement of work on the proposed Improvement.
7. UTILITIES.
Licensee, at Licensee's sole cost and expense, shall separately meter and pay for all
utilities used in connection with the Antennae Facilities and Licensee's operations on the
Premises.
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8. MAINTENANCE AND REPAIRS.
8.1. Painting of Antennae Facilities by Licensee.
Licensee, at its sole cost and expense, shall at all times keep its Antennae
Facilities painted as specified in writing by the City.
8.2. Maintenance and Repairs by Licensee.
Licensee, at its sole cost and expense, shall maintain, repair and secure its
Antennae Facilities, equipment and personal property on or attached to the Premises in a
safe condition, in good repair and in a manner suitable to the City and that does not
conflict with the use of the Tower by the City or other licensees, users or tenants as such
use existed on the date of execution of this Agreement. Licensee shall keep the Premises
free of debris and anything of a dangerous, noxious or offensive nature or which would
create a hazard or undue vibration, heat, noise or interference.
8.3. Inspection.
The City may examine the Antennae Facilities and inspect the Premises for any
reason deemed necessary by the City, including, but not limited to, purposes of safety and
ensurance that Licensee is in compliance with the conditions and provisions of this
Agreement. If Licensee is responsible under this Agreement for any maintenance or
repairs, the City shall notify Licensee in writing and Licensee shall undertake such
maintenance or repairs at its own cost and expense and in a timely and diligent manner.
In an emergency, as determined by the City in its sole discretion, the City may, at its
option, perform maintenance or repairs that are Licensee's responsibility in order to avert,
mitigate or cure such emergency. In this event, Licensee shall reimburse the City for the
reasonable cost of such maintenance or repairs within thirty (30) days of receipt of an
invoice from the City that describes the maintenance or repairs the City performed on
Licensee's behalf.
8.4. Damage Caused by Licensee.
Licensee, at Licensee's sole cost and expense, shall repair any damage to or
replace any damaged portion of the Owned Premises, including the Premises and the
Tower, that is caused by Licensee, its officers, agents, employees, contractors, or
subcontractors, to the City's reasonable satisfaction as soon as reasonably practicable,
provided that Licensee shall commence within ten (10) calendar days following the date
of such damage.
8.5. Maintenance by the City.
The City agrees at its cost and expense to maintain the Tower in good order and
condition and to make all necessary repairs and replacements promptly with first-class
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Tower or Owned Premises. Licensee agrees to cease any action on its part which
interferes with the City's use of the Tower or the Owned Premises as such use existed on
the date of execution of this Agreement immediately upon actual notice of such
interference. In such an event, either party may terminate this Agreement following
thirty (30) days' written notice to the other party; provided, however, that if such
interference is material and, in the City's sole and reasonable opinion, poses any threat to
the public safety or welfare, the City may terminate this Agreement immediately upon
provision of written notice to Licensee. In the event of such termination, the City shall
refund to Licensee an amount equal to the License Fee paid for the then current Fiscal
Period times a fraction, the numerator of which is the number of days remaining in such
Fiscal Period, and the denominator of which is 365 (the "Refund Amount").
10.2. Interference with Certain Other Operations Prohibited.
Licensee covenants and agrees that its Antennae Facilities and its operations on
the Premises shall not damage or interfere in any way with the Tower operations of a
licensee, user or other tenant whose communication facilities on the Tower existed prior
to the installation of Licensee's Antennae Facilities. If Licensee's operations on the
Premises cause such interference, Licensee shall undertake all measures reasonably
necessary to correct and eliminate the interference. If the interference cannot be
eliminated within a reasonable amount of time, not to exceed thirty (30) calendar days,
Licensee shall immediately cease any action on its part that interferes with the respective
licensee, user or tenant's use of the Tower or the Owned Premises. In such an event, the
City or Licensee may terminate this Agreement upon thirty (30) calendar days' written
notice to the other party. In the event of such termination, the City shall refund to
Licensee the Refund Amount.
10.3. Interference and Engineering Studies.
Prior to the approval of the placement of Licensee's Antennae Facilities or any
Improvement on the Tower, the City may require (i) an interference study by the City or
a third party contractor acceptable to the City in order to determine whether the Antennae
Facilities, any Improvement requested by Licensee and/or any of Licensee's intended
operations on the Tower will interfere with any existing communications facilities or the
City's operations on the Tower and/or (ii) an engineering study by the City or a third
party contractor acceptable to the City in order to determine whether the Tower is able to
support structurally Licensee's Antennae Facilities and/or Improvements. Licensee shall
pay for any interference or engineering study and all associated costs at Licensee's sole
cost and expense. If the City or a third party contractor of the City undertakes any
interference or engineering study, the City will provide (i) written notice to Licensee of
its intent to undertake such study and the estimated cost of such study prior to the
performance thereof and (ii) a written copy of such study to Licensee. If a third party
contractor of Licensee undertakes any interference or engineering study, Licensee shall
require such contractor to provide to the Director a (i) written copy of such study and (ii)
after installation of Licensee's Antennae Facilities or any Improvement on the Tower, a
written report, signed by the contractor, stating that the contractor has inspected the
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Antennae Facilities or Improvements and that the comply with all applicable and then-
current federal, state and local laws, ordinances, rules and regulations as well as any
specific requirements established by the Director as a condition of the City's approval of
such installation. In no way shall the performance of any interference or engineering
study or the results therefrom in any way affect the application of Sections 10.1 and 10.2.
If such studies indicate that interference or structural issues will arise as a result of the
installation of Licensee's Antennae Facilities or any Improvement on the Tower, then
Licensee shall have the right to terminate this Agreement upon the provision of written
notice to the City. In the event of such termination, the City shall refund to Licensee the
Refund Amount.
10.4. Interference with Licensee's Operations.
The City does not guarantee to Licensee subsequent noninterference with
Licensee's operations on the Premises. However, following the Effective Date of this
Agreement, for any request the City receives from a third party, other than a
governmental unit, office or agency, to use or lease space on the Tower and/or Owned
Premises, the City shall submit to Licensee such third party's proposal, complete with all
technical specifications reasonably requested in writing by Licensee, for Licensee's
review; provided, however, that the City shall not be required to provide Licensee with
any specifications or information claimed to be of a proprietary nature by such third
party.
Licensee shall have ten (10) calendar days following receipt of such third party's
proposal to make any reasonable objections thereto. If the City verifies and agrees with
Licensee's objections, the City shall require the third party to modify its operations
proposal in a manner determined, in the City's reasonable judgment, to reduce the
interference adequately with respect to Licensee's operations. Licensee's failure to make
any objection within the ten-day time frame provided above shall be deemed as consent
by Licensee to the installation of antennae or transmission facilities pursuant to the third
party's original proposal.
Notwithstanding anything to the contrary in this Agreement, the City may allow,
at any time, a governmental unit, office or agency to use or lease space on the Tower for
antennae or other communications facilities without regard to potential or actual
interference with Licensee's operations on the Premises; provided, however, that if the
operations of such governmental unit, office or agency actually and materially interferes
with Licensee's operations, Licensee may terminate this Agreement upon thirty (30)
calendar days' written notice to the City. In the event of such termination, the City shall
refund to Licensee the Refund Amount,
11. RIGHTS AND RESERVATIONS OF THE CITY.
11.1. This Agreement is not a franchise or permit for Licensee to use or cross the public
rights-of-way within the City of Fort Worth in the operation of its communications
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business. Licensee hereby covenants and agrees that it will not use or cross the public
rights-of-way in the City of Fort Worth unless it first notifies the City in writing and
obtains all licenses, permits or franchises required by the City of all entities wishing to
utilize the public rights-of-way in the same manner as Licensee.
11.2. The City may at any time take whatever action it deems necessary, in its
reasonable discretion, to repair, maintain, alter or improve the Premises or Owned
Premises. The City shall use best efforts to not interfere with the operation of Licensee's
Antennae Facilities in connection therewith. However, if the City's action under this
Section 11.2 does result in interference with the operation of Licensee's Antennae
Facilities for thirty (30) continuous days, Licensee shall have the right to terminate this
Agreement upon written notice to the City. In the event of such termination, the City
shall refund to Licensee the Refund Amount.
11.3. The City reserves the right to lease or allow use of other portions of the Tower or
the Owned Premises to third parties.
11.4. The City reserves the right to require Licensee to relocate Antennae Facilities on
the Tower to another location on the Tower in the event the City desires to lease or allow
use of such space on the Tower to a third party which is a governmental unit, office or
agency. In such an event, the City shall require the third party lessee to reimburse
Licensee's actual costs of relocation, and Licensee shall complete the relocation of its
facilities within thirty (30) calendar days following receipt of written notice from the
City.
11.5. During any war or national emergency, the City shall have the right to lease or
allow use of any part of the Owned Premises, including the Tower and the Premises, to
the United States Government. In this event, any provisions of this instrument which are
inconsistent with the provisions of the lease or use agreement with the Government shall
be suspended. The City shall not be liable for any loss or damages alleged by Licensee as
a result of this action. However, nothing in this Agreement shall prevent Licensee from
pursuing any rights it may have for reimbursement from the United States Government.
12. INSURANCE.
Licensee shall procure and maintain at all times, in full force and effect, a policy or
policies of insurance to provide coverages as specified herein, naming the City as an additional
insured and covering all public risks related to the leasing, use, occupancy, maintenance,
existence or location of the Premises and Licensee's operations thereon:
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12.1. Primary Liability Insurance Coverage
• Commercial General Liability:
$5,000,000 per occurrence, providing blanket contractual liability insurance
for all written contracts; products and completed operations; independent
contractor's liability; and coverage for property damage from perils of
explosion or collapse;
• Environmental Impairment Liability:
$1,000,000 per occurrence;
• Automobile Liability:
$1,000,000 per accident,
including, but not limited to, all vehicles, whether owned or hired, in use by
Licensee, its employees and agents;
• Worker's Compensation/Employer's Liability:
Worker's compensation coverage as required by law; and Employer's Liability
at $100,000 per accident.
12.2. Property Insurance.
Prior to the installation of the Antennae Facilities and related equipment and prior
to the commencement of any modification, renovation, improvement or new
construction, Licensee shall obtain builders all-risk insurance and an installation floater
or equivalent property coverage covering cables, materials, machinery and supplies of
any nature which are to be used in or incidental to the respective project. Upon
completion of the installation of the Antennae Facilities, and any subsequent
modification, renovation, improvement or new construction, Licensee shall obtain and
maintain fire, extended coverage and vandalism and malicious mischief insurance, all at
full replacement cost limits, on the Antennae Facilities and the Premises.
12.3. Insurance Required of Licensee's Contractors.
Licensee shall require that all contractors used to perform any of the
requirements, obligations, services or other work hereunder provide insurance with
coverages and limits that are reasonably satisfactory to the City. Prior to the
commencement of work on the Premises by any contractor used by Licensee, Licensee
shall deliver to the City a certificate of insurance evidencing the insurance coverage for
such contractor.
12.4. General Requirements.
12.4.1. The City, in the City's sole and reasonable discretion, reserves the right
to revise insurance coverage requirements and limits at any time.
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Licensee agrees that within thirty (30) days following receipt of written
notice from the City, Licensee will implement all revisions reasonably
requested by the City.
12.4.2. Licensee's policy or policies of insurance shall be endorsed to cover all
of Licensee's operations on the Owned Premises and to provide that no
material changes in coverage, including, but not limited to, cancellation,
termination, non-renewal or amendment, shall be made without thirty
(30) days' prior written notice to the City.
12.4.3. Licensee shall maintain its insurance with underwriters authorized to do
business in the State of Texas and who are reasonably acceptable to the
City in terms of solvency and financial strength. Licensee shall furnish
the City with certificates of insurance signed by the respective
companies as proof that it has obtained the types and amounts of
insurance coverage required herein. In addition, Licensee shall, on
demand, provide the City with evidence that it has maintained such
coverage in full force and effect.
12.4.4. Deductible or self-insured retention limits on any line of coverage
required herein shall not exceed $25,000 in the annual aggregate unless
the limit per occurrence, or per line of coverage, or aggregate is
otherwise approved by the City in writing.
12.4.5. All insurance policies other than those for worker's compensation shall
be written on an occurrence basis and not a claims made basis.
12.4.6. Nothing in this section shall be construed to limit or in any way affect
Licensee's operation as an independent contractor as provided in Section
13 or Licensee's liability or obligation to indemnify the City as provided
in Section 14.
13. INDEPENDENT CONTRACTOR.
It is expressly understood and agreed that Licensee shall operate as an independent
contractor as to all rights and privileges granted herein, and not as an agent, representative or
employee of the City. Licensee shall have the exclusive right to control the details of its
operations and activities on the Premises and shall be solely responsible for the acts and
omissions of its officers, agents, servants, employees, contractors, subcontractors, patrons, and
licensees. Licensee acknowledges that the doctrine of respondent superior shall not apply as
between the City and Licensee, its officers, agents, employees, contractors and subcontractors.
Nothing in this Agreement shall be construed as the creation of a partnership or joint enterprise
between the City and Licensee.
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14. INDEMNIFICATION.
LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR
PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND,
INCL UDING DEA TH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARA CTER,
WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH ITS
USE OF THE OWNED PREMISES UNDER THIS AGREEMENT OR WITH THE USE,
MAINTENANCE, OR OCCUPANCY OF THE OWNED PREMISES OR ANY
IMNPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO, THE TOWER„
EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES, AGENTS, OR
CONTRA CTORS.
LICENSEE COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY,
HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS
AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LATVSUITS FOR
EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS
TO LICENSEE'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR
PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH LICENSEE'S USE, MAINTENANCE OR OCCUPANCY, OF THE
OWNED PREMISES OR ANY IMPROVEMENTS THEREON, INCLUDING, BUT NOT
LIMITED TO, THE TOWER, EXCEPT TO THE EXTENT CAUSED BY THE GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES,
AGENTS, OR CONTRACTORS.
LICENSEE ASSUMES ALL RESPONSIBILITY AND AGREES TO PAY THE CITY
FOR ANYAND ALL INJURY OR DAMAGE TO THE OWNED PREMISES, INCLUDING
THE TOWER AND OTHER PORTIONS OF THE PREMISES, WHICH ARISE OUT OF
OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS
OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS OR
LICENSEES, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES, AGENTS, OR
CONTRACTORS.
15. TERMINATION.
In addition to termination rights contained elsewhere in this Agreement, this Agreement
may be terminated as follows:
15.1. By Either Party.
The City or Licensee may terminate this Agreement for any reason, to be effective
on the September 30th expiration of the Fiscal Period then in effect, by provision to the
other party of at least thirty (30) calendar days' advance written notice.
Water Tower CFLA between City of Fort Worth MA",
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and Pae 13 k tnletNoicestream PCS,L.L.C. (Calmont Tower) N �
15.2. Failure by Licensee to Pay License Fees or Other Charges.
If Licensee fails to pay any License Fees or other charges due under this
Agreement, the City shall deliver to Licensee a written invoice and notice to pay the
invoice within ten (10) calendar days. If Licensee fails to pay the balance outstanding
within such time, the City shall have the right to terminate this Agreement immediately.
15.3. Safety Issues.
If the City determines, in its sole and reasonable discretion, that the Tower is
structurally unsound or otherwise not structurally suitable for Licensee's operations,
taking into account all factors relating to the condition of the Tower, including, but not
limited to, age, wear and tear or damage, or if the City determines, in its sole and
reasonable discretion, that Licensee's continued use of the Tower constitutes a threat to
the public health, safety or welfare, the City may terminate this Agreement immediately
upon written notice to Licensee and take any reasonable action, including, but not limited
to, removal of the Antennae Facilities.
15.4. Technical Difficulties During Trial Period.
The first ninety (90) days following the Effective Date of this Agreement shall
constitute a trial period ("Trial Period") during which Licensee may test the Antennae
Facilities to ensure that their location on the Towers is suitable for Licensee's business
purposes. If Licensee encounters any kind of technical difficulties with its Antennae
Facilities during the Trial Period, Licensee may terminate this Agreement at any time
during the Trial Period by providing written notice to the City. In the event of such
termination, the City shall refund to Licensee the Refund Amount.
15.5. Rights of the City Upon Termination or Expiration of Agreement.
Upon termination or expiration of this Agreement, all rights, powers and
privileges granted to Licensee hereunder shall cease. However, Licensee shall remain
liable to the City for all arrearages of License Fees and other charges payable hereunder
and for any obligations that arose prior to the effective date of termination or expiration
but that Licensee did not complete or perform. In addition, Licensee agrees that it will
return the Premises in the same condition as existed at the time this Agreement was
entered into and all appurtenances and improvements thereon in good order and repair,
subject to ordinary wear and tear. Licensee, at its sole cost and expense, shall remove
from the Premises all Antennae Facilities, equipment and personal property placed on the
Premises by Licensee pursuant to this Agreement and shall restore the affected area of the
Premises to the City's reasonable satisfaction within thirty (30) calendar days following
the effective date of termination or expiration, except as may otherwise be required or
allowed by this Agreement. After such time, the City shall have the right to take full title
to any Antennae Facilities, equipment or personal property remaining on the Premises
and to remove or dispose of same. Licensee agrees that it will assert no claim of any kind
Water Tower CFLA between City of Fort Worth o;L
and Cook InleWoicestream PCS,L.L.C. (Calmont Tower) lrQ�uV
Page 14 �: tilt 11 C'rl��~U•�LSUWUull
against the City, its agents, servants, employees or representatives which may stem from
the City's lawful termination of this Agreement or, in accordance with its terms, any act
incident to the City's assertion of its rights under this Agreement.
16. CONDEMNATION.
In the event that the Tower is taken by eminent domain, this Agreement shall terminate as
of the date title vests in the condemning authority. In the event that any other portion of the
Premises is taken by eminent domain, either party may terminate this Agreement as of the date
title vests in the condemning authority by giving the other party thirty (30) days' prior written
notice. If the Tower or any other portion of the Premises are taken by eminent domain, the City
shall receive the full amount of any reward paid for the taking and the full amount of all
damages, whether awarded as compensation for diminution in value of Licensee's interest in the
Premises or to the fee of the Premises. Licensee shall not be entitled to any portion of such
reward or damages and hereby waives any claim to any portion of such reward or damages.
17. ASSIGNMENT.
Licensee may assign this Agreement to any person or entity controlling, controlled by or
under common control with Licensee or to any person or entity that, after first receiving the
necessary FCC licenses, acquires Licensee's radio communications business or assets, provided
that (i) Licensee gives the City written notice of such an assignment and (ii) the assignee enters
into a written agreement with the City, signed by both the assignee and the City, in which the
assignee covenants and agrees to comply with all provisions and conditions of this Agreement
and to be bound fully by this Agreement the same as if it had originally executed this Agreement.
Otherwise, Licensee may not assign, transfer, sell, lease or otherwise convey all or any portion of
its rights and obligations under this Agreement unless (i) the City provides advance written
consent and (ii) the assignee or transferee enters into a written agreement with the City, signed
by both the assignee or transferee and the City, in which the assignee or transferee covenants and
agrees to comply with all provisions and conditions of this Agreement and to be bound fully by
this Agreement the same as if it had originally executed this Agreement.
18. LIENS BY LICENSEE.
Licensee acknowledges that it has no authority to engage in any act or to make any
contract which may create or be the foundation for any lien upon the property or interest in the
property of the City. If any such purported lien is created or filed, Licensee, at its sole cost and
expense, shall liquidate and discharge the same within thirty (30) days of such creation or filing.
Licensee's failure to discharge any such purported lien shall constitute a breach of this
Agreement and the City may terminate this Agreement immediately. However, Licensee's
financial obligation to the City to liquidate and discharge such lien shall continue in effect
following termination of this Agreement and until such a time as the lien is discharged.
Water Tower CFLA between City of Fort Worth OU1D
and Cook Inlet/Voicestream PCS,L.L.C. (Calmont Tower)
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19. TAXES AND ASSESSMENTS.
Licensee agrees to pay any and all federal, state or local taxes or assessments which may
lawfully be levied against Licensee, including, but not limited to, those assessed due to (i)
Licensee's occupancy of the Premises; (ii) Licensee's use of the Premises; or (iii) any
improvements or property placed on the Premises by Licensee.
20. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS.
Licensee agrees to comply with all federal, state and local laws, and all ordinances, rules
and regulations of the City with respect to the use of the Premises and the operation of the
Antennae Facilities. If the City notifies Licensee of any violation of such laws, ordinances, rules
or regulations, Licensee shall immediately desist from and correct the violation. Licensee
covenants and agrees that it shall not engage in any unlawful use of the Premises. Licensee
further agrees that it shall not knowingly permit its officers, agents, and employees to engage in
any unlawful use of the Premises. Knowingly unlawful use of the Premises by Licensee shall
constitute a breach of this Agreement and grounds for immediate termination by the City.
21. NON-DISCRIMINATION COVENANT.
Licensee, for itself, its personal representatives, successors in interest and assigns, as part
of the consideration herein, agrees as a covenant running with the land that no person shall be
excluded from participation in or denied the benefits of Licensee's use of the Premises on the
basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status.
Licensee further agrees for itself, its personal representatives, successors in interest and assigns
that no person shall be excluded from the provision of any services on or in the construction of
any improvements or alterations to the Premises on grounds of race, color, national origin,
religion, handicap, sex, sexual orientation or familial status. If any claim arises from an alleged
violation of this non-discrimination covenant by Licensee, its personal representatives,
successors in interest or assigns, Licensee agrees to indemnify the City and hold the City
harmless.
22. LICENSES AND PERMITS.
Licensee shall, at its sole expense, obtain and keep in effect all licenses and permits
necessary for the installation or operation of its Antennae Facilities, Equipment Shelter, power,
any necessary utilities and other business concerns on the Premises. Subject to the City's
reasonable attorney and administrative fees, the City shall cooperate reasonably with Licensee in
Licensee's efforts to obtain any federal, state or local licenses and permits required or
substantially required by Licensee's use of the Premises.
Water Tower CFLA between City of Fort WorthCUr
and Cook InletNoicestream PCS,L.L.C. (Calmont Tower) q,� f u
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23. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively
determined to have been delivered when (i) hand-delivered to the other party, its agents,
employees, servants or representatives, (ii) delivered by facsimile with electronic confirmation of
the transmission, provided a copy of same is also sent by United States Mail or (iii) received by
the other party by United States Mail, registered, return receipt requested, addressed as follows:
To the CITY:
For License Fees and Other Charges: For All Other Matters:
City of Fort Worth City of Fort Worth
Revenue Office Attn: Director Water Dept.
1000 Throckmorton 1000 Throckmorton
Fort Worth TX 76102 Fort Worth TX 76102
with a copy to:
City of Fort Worth
Attn: Law Dept., Telecommunications
1000 Throckmorton
Fort Worth TX 76102
To LICENSEE:
Attn: Lease Administrator
VoiceStream PCS BTA I Corp.
c/o Cook Inlet/VoiceStream Operating Co.
3650— 131"Ave. SE, Suite 100
Bellevue WA 98006
with a copy to:
Attn: Lease Administrator
Cook Inlet/VoiceStream Operating Co.
8777 Stemmons Fwy, Suite 200
Dallas TX 75247
24. ACCEPTANCE OF PREMISES.
Licensee acknowledges that it has inspected the Premises and Owned Premises and is
fully advised of its own rights without reliance upon any representation made by the City
ii'nlsr���j^
Water Tower CFLA between City of Fort Worth v r(�^r�r,�
and Cook InleWoicestream PCS,L.L.C. (Calmont Tower) � �tSIIG;IU'U
Page 17
p yL-
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concerning the condition of the Premises or Owned Premises. Licensee hereby accepts the
Premises in the condition existing as of the Effective Date of this Agreement.
25. GOVERNMENTAL POWERS.
It is understood and agreed that by execution of this Agreement, the City does not waive
or surrender any of its governmental powers.
26. NO WAIVER.
The failure of the City or Licensee to insist upon the performance of any term or
provision of this Agreement or to exercise any right granted herein shall not constitute a waiver
of the City's or Licensee's right to insist upon appropriate performance or to assert any such right
on any future occasion.
27. VENUE.
Should any action, whether real or asserted, at law or in equity, arise out of the terms of
this Agreement or by Licensee's operations on the Premises or Owned Premises, venue for such
action shall lie in state courts located in Tarrant County, Texas or the United States District
Court for the Northern District of Texas, Fort Worth Division. This Agreement shall be
construed in accordance with the laws of the State of Texas.
28. ATTORNEYS' FEES.
In the event there should be a default under any provision of this Agreement and either
party should retain attorneys or incur other expenses for the collection of License Fees or other
charges, or the enforcement of performance or observance of any covenant, obligation or
agreement, the parties agree that the reasonable attorneys' fees and other reasonable expenses so
incurred shall be paid to the prevailing party by the other party.
29. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired.
Water Tower CFLA between City of Fort Worthy
andCook InletfVoicestream PCS,L.L.C. (Calmont Tower)
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30. FORCE MAJEURE.
The City and Licensee shall exercise their best efforts to meet their respective duties and
obligations as set forth in this Agreement, but shall not be held liable for any delay or omission
in performance due to force majeure or other causes beyond their reasonable control, including,
but not limited to, compliance with any government law, ordinance or regulation, acts of God,
acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor
restrictions by any governmental authority, transportation problems and/or any other similar
causes.
31. HEADINGS NOT CONTROLLING.
Headings and titles used in this Agreement are for reference purposes only and shall not
be deemed a part of this Agreement.
32. ENTIRETY OF AGREEMENT.
This Agreement contains the entire understanding and agreement between the City and
Licensee, their assigns and successors in interest, as to the matters contained herein. Any prior
or contemporaneous oral or written agreement is hereby declared null and void to the extent in
conflict with any provision of this Agreement. This Agreement shall not be amended unless
agreed to in writing by both parties and approved by the City Council.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples
this day of , 2000.
CITY OF FORT WORTH: COOK INLET/VOICESTREAM ,
a Delaware limited liability company
By: Voice ream PCS TA I Corporation, Inc.,
a Dela w c oratio ►{� S
y: r. By:
Mike Groomer Name
Assistant City Manager Title
Water Tower CFLA between City of Fort Worth
and Cook InletNoicestream PCS,L.L.C. (Calmont Tower)
Page 19
ATTEST: ATTEST:
By: By:
C ty Secretary
APPROVED AS TO FORM AND LEGALITY:
Assistant City At ey
M & C: L-12874 8-22-00
00p�
�ry ?MPD
Water Tower CFLA between City of Fort Worth C
and Cook InletNoicestream PCS,L.L.C. Calmont Tower
Page 20
STATE OF —TC-06 §
COUNTY OF; RLQ�S §
BEFORE ME, the under-; ned authoriL , a Notary Public in and for the State of
on this day personally appeared , known to me to be the person whose name
is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of
VoiceStream PCS Ts i' I lC.orporation, Inc. on behalf of Cook Inlet/VoiceStream PCS, L.L.C.
as its duly authorized - 66 [ i' di cc 5- and that sto executed the same as such and for the
purposes and consideration therein expressed and in the capacity therein stated.
Q 'V,Fx ,,A,yN�DER MY HAND AND SEAL OF OFFICE this day of ,
200(�••�'' p�..MA_Zi *
y = � CX--
A91F CF No N tary Public i nd for the State of L)4k5
",# 11111111111110wo
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on
this day personally appeared rnon CLa�artb known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the
City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the
purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND STEAL OF OFFICE this_!' day of
2000. nn
0 `
Notary ublic in and for t State of Texas
�*pY Pu SARAH JANE OME
} NOTARY PUBLIC
t, b State of Texas
�+ w Comm.Exp.01-29-2002
�e���
la kJrGi UUp� o
City of Fort Worth, Texas
qVinvolf And Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
8/22/00 L-12874 1 60VOICE 1 of 1
SUBJECT LICENSE AGREEMENTS WITH VOICESTREAM WIRELESS FOR SPACE ON
VARIOUS CITY WATER TOWERS
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute two license
agreements with Voicestream Wireless for installation and operation of Personal Communications
Systems communications equipment on the following water towers:
• Calmont Elevated Tank
• Northwest Elevated Tank
DISCUSSION:
Voicestream Wireless has requested the authority to install Personal Communications Systems (PCS)
at various water towers in the City. These are existing structures owned and maintained by the City.
Any modifications required to the towers as a result of installation of the PCS equipment will be at the
sole expense of Voicestream Wireless.
The license agreements will have an initial term of five years, with an opportunity for Voicestream
Wireless to renew the agreements for two consecutive terms of five years each. Under the terms of the
agreements, Voicestream Wireless will make annual payments of $24,000 for the first antenna and
$2,400 per year for each subsequent antenna on the same facility, with the total fee increasing by 3%
each October 1. The license fee during a renewal term shall follow the same schedule unless changed
by the City, which will have the right to request a different license fee at that time.
With regard to the Northwest Elevated Tank, Voicestream will erect a temporary cell on wheels (COW)
on the premises until the City has completed the painting of that tank. Voicestream will pay the City
$2,000 per month for this privilege after the Northwest Elevated Tank is painted. Voicestream will
install its facilities on the tank and remove the temporary COW, at which time Voicestream will pay the
City compensation in accordance with the standardized schedule described above.
FISCAL INFORfv"ATION/CERTIFICATION:
The Water Department will be responsible for the collection of revenue associated with this agreement.
MG:I
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to) `rE
PE45 493472 0601000 APr �i t'11
Mike Groomer 6140 CITY C(j U N OA
Originating Department Head:
A VG3 2a 2000
Dale Fisseler 8207 (from)
Additional Information Contact:
Ci.-, of°crt Wor th.Texas
Dale Fisseler 8207