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HomeMy WebLinkAboutContract 39918cmr SECRETARY No.��q19 LICENSE AGREEMENT FOR SANDY LANE PARK THE STATE OF TEXAS § COUNTY OF TARRANT § KNOW ALL MEN BY THESE PRESENTS THIS LICENSE AGREEMENT ("Agreement") is entered into as of the � da of y 20LD, (the "Effective Date") by and between CITY OF FORT WORTH, a home rule municipal corporation of the State of Texas (the "City"), and T-Mobile West Corporation, a Delaware corporation (the "Company"). The City and the Company are referred to hereinafter each individually as a "Party" and collectively as the "Parties" to this Agreement. RECITALS WHEREAS, the Company has requested to use certain portions of the surface and subsurface of Sandy Lane Park, 2001 Sandy Lane, Fort Worth, Texas 76112, to construct, maintain, and operate a telecommunication tower and support facilities; and WHEREAS, on September 30, 2008, the Fort Worth City Council approved M&C L- 14650, which authorized entering into a license agreement with the Company for use of a portion of surface and subsurface of Sandy Lane Park for the installation of a stealth communications tower and support facilities; and WHEREAS, on December 15, 2009, the Fort Worth City Council approved M&C L- 14904, which modified the previous authority with respect to term and payment. NOW THEREFORE, the City and the Company do hereby agree to the following terms and conditions as set forth in the Agreement. AGREEMENT: I. PURPOSE This Agreement is solely for the purpose of permitting the Company to installI maintain, and operate a cellular telecommunications tower and related support facilities consisting of the following components only: a steel monopole and cellular. antennas standing no more than a combined total of 100 feet tall when measured from the ground; a 16400t by 20400t fenced enclosure; transmission and utility wires, cables, conduits, pipes, equipment, fences and related improvements. These items are referred to collectively as the "Company Facilities" and are detailed in Exhibit B, which is attached hereto and incorporated herein for all purposes as though it were set forth at length. He LICENSED PREMISES Subject to the terms and conditions of this Agreement and the CityCharter and ordinances for and in consideration of the monetary To' D' payments tor'' WC)RTH, TX LICENSE AGREEMENT FOR SANDY LANE PARK 0 be made hereunder and the other covenants and promises expressed herein, the City does hereby agree to license to the Company use of the following five tracts of land (collectively the "Licensed Premises") located in Sandy Lane Park, 2001 Sandy Lane, Fort Worth, Texas 76112: Tract One —Telecommunication Tower Area EEINC a 0,007 ears (320,00 sqtract and being all that certain let, tract or parcel of land situated in the David Hitson Survey, Abstract No. 665, in the City of Fort Worth, Tarrant County, Texas, and being part of a called 26.5 acre tract described in a deed from Susan Sutton McKee, Ind. Executrix of the Est. of Frank McKee, deceased, et al to City of Fart Worth as recorded in Volume 4374, Page 729, Deed Records of Tarrant County, Texas, and being more particularly described as follows. COMMENCING prcarn a �c�int on the east line of Sandy Lane, at the northw«est corner of said 26,5 acre tract, from which paint a 1 /2 inch iron rod (capped) found at the northwest corner of Lot 10, Block 1, Fair Meadows Addition according to the plot thereof recorded in Volume 388-46, Page: 944, bears N 89'13*39" E a distance of 1O.00 fleet and N 00*2 ' 9" E a distance of 300.59 feet, for a reference, THENCE S 00`28°39" �° calang the east line of said Sandy Lane and the wrest line o6 sold 26.5 acre tract a distance of 223.45 feet and S 89'31'21 a' E across said 26.5 acre tract a distance of 618.45 feet to a 1,/2 inch iron rod set at the POINT OF BEGINNING of sold lease area; THENCE N 8J'40'S6" E acrcass staid 26.5 acre tract a distance of 16.0t} feet to U 1 f2 hash iron rod set, for a corner; 'HENCE S 09`19'Cl4" E axseross said 26,5 acre tract a distance caf 20.00 feet tc a 1 /2 inch iron red set, far a canner; l'HENCE S 80440156" across said 26.5 acre tract a distance of 1 £i3O€� feet to a 1 i2 inch iron rod set, for a earner; THENCE N 09` 19'Oq-" W gcrass said 26.5 acre 'tract a distance of 20.ti0 -feet tc� the )-'GIiT CF �EGIN�JING and coratalning Q.007 acres (320.00 sq ft) of land, also beincx known as 2001 Sandy Lane, Fort tto rZ Texas 76112, LICENSE AGREEMENT FOR SANDY LANE PARK 2 of 29 Tract Two — Utility Line Corridor SEIIG gall that certain lot, trcaet �>r parcel of Iand situated in the David Hitson Survey; abstract No. 665, in the City of Fort Worth, Tarrant County, Texas, and being part of a called 26.5 acre tract described in a deed from Swan Sutton McKee, Ind. Executrix of the Est. of Frank McBee, deceased, et al to City of Fort Worth as recorded in Volume 4374, Page 729, Deed records of Tarrant County, Texas, and being a 5 feet in width utility easement, the centerline of said easement being more particularly described as follows: COMMENCING from a paint on the east line of Sandy Lane, at tl-�e northwest corner of said 26.5 acre tract, from which point a 112 inch iron rod (capped) found at the northwest corner of Lot 10, 13lock 1, Fair Meadows addition according to the plat thereof recorded in Volume 388-46, Page 944, bears N 89'1373 " E a distance of 10.00 feet and N 00'281,39" E a distance of 300.59 feet, for a reference; THENCE N 9° 13"39" E along the north line of >aid 26.5 cadre tract and the south line of said Lot 10 a distance of 469.19 feet and S 00`46121" E across said 26.5 acre tract a distance of 2,53 Beet to the POINT OF BEGINNING of sold easement; THENCE S 32'S4` 14" E across said 26.b acre tract a dlst+�nce of 2/6.27 feet to the POINT OF TERMINATION of the centerline of said b feet in width utility easement. Tract Three —Coaxial Cable Corridor Prior to construction, Parties shall execute a written addendum to this Agreement establishing the legal boundaries of this tract. LICENSE AGREEMENT FOR SANDY LANE PARK _ 3 of 29 Tract Four — Access Route i3Elh1G all that certain lot, tract or parcel of land sltuated In the David Hitson Survey, Abstract No. 665, in the City of Fort Worth, Tarrant County, Texas, and being park of a called 26.5 acre tract described in a deed from Susan Sutton McKee, Ind. Executrix of the Est. of Frank McKee, deceased, et al to City of Fart north cis recorded in Volume 4374, Page 729, (deed Records of Tarrant County, Texas, and being a 15 feet in width access easement, the centerline of said easement being more particularly described as follows: COMMEIeICII�iG trorr� a point on the east line of Sandy Lane, at the northwest corner of said 26.5 acre tract, from which paint a 1 /2 inch iron rod (capped) found at the northwest corner of Lot 10, Block 1, Fair Meadows addition according to the plat thereof recorded in Volume 388-46, Page 944, bears N 89'13'39" E a distance of 10.00 feet and hi 00'28'39" E a distance of 300.59 feet, for a reference; THENCE S C10`28'39" 4'J along the east line of sari Sandy Lane sand the west line of said 26.5 acre tract a distance of 637,94 feet to the POINT CAE BEGINNING of said easement, THENCE ( 89`21 k27" E across said 2.5 acre tract a distance of 45.75 feet to a point at the beginning of a curve to the left, for a corner; THEI�ICE across said 26.5 acre tract and along said curve having a radius of 91.12 fuck, can arc length of 43.61 feet, being subtended by a chord of N 75"41'25'* E a distance 43.20 feet to a paint at the beginning of a curve to the right, for a corner; THENCE across said 26.5 acre tract and along said curve having a radius eaf 887.8?_ feet, an arc length of 188.7f1 feet, being subtended by a chord of N 61'36'31" E a distance 188.35 fleet to a point at the beginning of a curve to the left, for a corner; THENCE across said 26.5 acre tract and along said carve having a radius of 432..08 feet, an arc length oa 67,85 feet, being subtended by a chard of N 56'58'08„ E a distance 67.78 feet to a point, for a e orner, THENCE 149`58'28" E across said 26.5 acre tract a distance of 408.96 feet tc� the F'OII�T OF TE�MINATIOI� of the centerline of scald 15 feet in width access easement. Tract Five —Temporary Staging Area Prior to commencement of construction, City and Company shall execute a written addendum to this Agreement designating that portion of Sandy Lane Park that is to be used as the Temporary Staging Area (see Paragraph III below). LICENSE AGREEMENT POR SANDY LANE PARK � of 29 The location and boundaries of all Tracts are illustrated in Exhibit A, which is attached hereto and incorporated herein for all purposes as though it were set forth at length. Company agrees that it shall not use any structures belonging to the City that may be located in Sandy Lane Park or on the Licensed Premises without the express prior written permission of the City. Company Facilities All Company Facilities, with the exception of utility lines and coaxial or other communication cable or wiring, shall be confined to Tract One of the Licensed Premises. Tract Two of the Licensed Premises shall be used solely for electrical and other utility lines required by the telecommunications tower. Tract Three of the Licensed Premises shall be used solely for coaxial cable or similar communication cable or wiring as approved in advance, in writing by the City. Installation, maintenance, and operation of all Company Facilities must comply with alI terms and conditions of this Agreement as well as any applicable statute, ordinance, or regulation of federal, state, or local government. Access Route To allow reasonable pedestrian and vehicular access to and from Tract One and the Company Facilities, the City licenses to the Company a non exclusive right of access across Sandy Lane Park using Tract Four and depicted as an access route on Exhibit "A." Company shall not drive on the City's driveways, roads, or parking lots located in Sandy Lane Park except along Tract Four or such other route as the City may designate for access. Company's use of Tract Four shall be subject to and shall not materially affect the City's or other person's use of Tract Four or Sandy Lane Park. Company shall comply with all of its obligations and responsibilities under this Agreement in using Tract Four and Sandy Lane Park Company shall have 24-hours-a-day, 7-days-a-week access to the Licensed Premises at all times during the Term of this Agreement at no additional charge to Company. Temporary StawyinLy Area For a period of one hundred and sixty (160) days commencing with the Effective Date (the "Initial Construction Period"), the City licenses to the Company on a non- exclusive basis access to and use of that portion of Sandy Lane Park designated in written addendum to this Agreement as Tract Five for use as a temporary storage and LICENSE AGRfiEMENT FOR SANDY LANE PARK 5 of 29 construction staging area for activities directly related to the Initial Construction of the Company Facilities. In accessing and using the Temporary Staging Area, Company shall comply with all of its obligations and responsibilities under this Agreement. Company's rights in the Staging Area hereunder shall be strictly limited and shall fully and absolutely terminate and be of no further force and effect at the conclusion of the Initial Construction Period. After the Initial Construction Period has ended, all rights of the Company in and to the Temporary Staging Area shall, automatically and without the need for any further documentation, fully and unconditionally terminate, whereupon the Company shall have no right of entry or use of the Temporary Staging Area whatsoever. IV. PROHIBITION AGAINST SUBLICENSE OR CO -LOCATION Company SHALL NOT sell, sublease, sublicense, or otherwise allow use of the Company Facilities by any other company or entity, without express written consent and approval from City. In addition, Company SHALL NOT sell, sublease, sublicense, or allow the co -location of facilities of Affiliates or other companies within the Licensed Premises or on the Company Facilities without express written consent and approval from City. If City's consent is required, City shall have up to ninety (90) days to review and either approve or reject any request for consent to sell, sublease, sublicense or otherwise allow use of the Company Facilities. Company shall retain all rights to the rental income from any Co -Locator for use of space on the monopole. No co - location of facilities shall be approved unless a Co -Locator enters into a separate agreement with the City. City shall retain all rights to the income from any separate license agreement between the City and Co -Locator. V. USE NOT EXCLUSIVE This Agreement and all rights granted to Company herein are strictly non-exclusive. The City reserves the right to enter into and grant other and future licenses, leases, and other authorizations for use of Sandy Lane Park and the Licensed Premises to other persons and entities as the City deems appropriate in accordance with applicable laws provided, however, that in granting subsequent authorization for use, the City will not allow a use that will unreasonably interfere with the Company's use of the Licensed Premises as provided herein. This Agreement does not establish any priority for the use of Sandy Lane Park or the Licensed Premises by the Company or by any present or future licensees or other permit holders. In the event of any dispute as to the priority of use of Sandy Lane Park or the Licensed Premises, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders, as determined by the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. LICENSE AGREEMENT FOR SANDY LANE PARK 6 of 29 VI. ACCEPTANCE OF LICENSED PREMISES The Company takes all portions of the Licensed Premises and all appurtenances in "AS IS" condition without any express or implied warranty on the part of the City, except as otherwise provided in this Agreement. The Company accepts the Licensed Premises in their present condition, finds them suitable for the purposes intended, and further acknowledges that it is thoroughly familiar with such condition by reason of a personal inspection and does not rely on any representations by the City as to the condition of the Licensed Premises or their suitability for the purposes intended. The Company accepts the Licensed Premises subject to any and all previously recorded easements that may have been granted on, along, over, under, or across said property, and releases the City from any and all damages, claims for damages, loss, or liabilities that may be caused to invitees, licensees, or trespassers by reason of the exercise of such rights or privileges granted in said easements. The Company's taking possession of the Licensed Premises shall be conclusive evidence (a) that the Licensed Premises are suitable for the purposes and uses for which same are leased; and (b) that the Company waives any and all defects in and to the Licensed Premises and all the appurtenances thereto. The City shall not be liable to the Company, its agents, employees, contractors, subcontractors, invitees, licensees, or guests for any damage to any person or property due to the acts or omissions on the Licensed Premises of the Company, its agents, employees, contractors, or subcontractors, unless such damage is caused by the gross negligence or willful misconduct of City or its agents, employees, separate contractors or subcontractors. VII. TERM The initial term of this Agreement shall commence on the Effective date and run through 12:01AM on the 5th anniversary of the Effective Date ("Initial Term"). The First Renewal Term shall run from the 5th anniversary of the Effective Date through 12:01AM on the loth anniversary of the Effective Date (the "First Renewal Term"). The Second Renewal Term shall run from the loth anniversary of the Effective Date through 12:01AM of the 15th anniversary of the Effective Date (the "Second Renewal Term"). The Third Renewal Term shall run from the 15th anniversary of the Effective Date through 12:01AM of the 20th anniversary of the Effective Date (the "Third Renewal Term"). The Primary, First Renewal, Second Renewal, and Third Renewal Terms are each referred to individually as a "Term" and together collectively as the "Terms." All Terms of this Agreement shall be subject to earlier termination in accordance with Paragraph XXX. It is expressly understood and agreed that all rights granted to Company under this Agreement are irrevocable until this Agreement expires or sooner terminates as provided herein. Renewal of the Agreement at the end of the Initial Term, First Renewal Term, and Second Renewal Term shall occur automatically UNLESS the Agreement has been previously terminated in accordance with Paragraph XXX OR either Party has provided written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then -current term. LICENSE AGREEMENT FOR SANDY LANE PARK 7 of 29 VIII. MONETARY CONSIDERATION One -Time Fee The Company shall, within 30 days of the Effective Date of this Agreement, pay to the City Fifteen Thousand Dollars ($15,000.00) to defray City expenses related to this Agreement. This fee shall be in addition to all other fees specified in the Agreement. Company acknowledges that this fee shall be due and payable regardless of whether Company Facilities are ultimately constructed. License Fee for Inal Term On or before the Effective Date, Company shall pay the City the sum of Seventy Five Thousand ($75,000.00) as compensation for its use of the Licensed Premises during the Initial Term of this Agreement. If the Company is unable to obtain all governmental approvals necessary for the Initial Construction of the Company Facilities on the Licensed Premises, the Company shall have the right to terminate this Agreement prior to the commencement of Initial Construction. In the event Company terminates under these circumstances, City shall refund the License Fee for the Initial Term pro -rated to reflect the number of days remaining in the Initial Term following the effective date of termination. License Fee for First Renewal Term If this Agreement is renewed for a First Renewal Term, Company shall, at least thirty days prior to the expiration of the Initial Term, pay the City the sum of Ninety Thousand Dollars ($90,000.00) as compensation for its use of the Licensed Premises during the First Renewal Term of this Agreement. License Fee for Second Renewal Term If this Agreement is renewed for a Second Renewal Term, Company shall, at least thirty days prior to the expiration of the First Renewal Term, pay the City the sum of One Hundred and Eight Thousand Dollars ($108,000,00) as compensation for its use of the Licensed Premises during the Second Renewal Term of this Agreement. License Fee for Third Renewal Term If this Agreement is renewed for a Third Renewal Term, Company shall, at least thirty days prior to the expiration of the Second Renewal Term, pay the City the sum of One Hundred Thirty Thousand Dollars ($130,000.00) as compensation for its use of the Licensed Premises during the Third Renewal Term of this Agreement. IX. ADDITIONAL CONSIDERATION In addition to any fees owed, the Company shall, at its sole cost and expense, install a light fixture on the Company Facilities to replace the one being removed to allow installation of the monopole (the "Lighting Equipment"). Prior to installation of the Lighting Equipment, the Company shall provide a photometrics plan to the City demonstrating that the Lighting Equipment, as installed, will provide appropriate foot candles to the athletic surface. From and after the date construction of such Lighting Equipment is completed, including installation of a separate utility meter for City's utility usage for the Lighting Equipment, City shall own and be solely responsible for the operation, maintenance, repair and utilities consumed by the Lighting Equipment. The monopole, excluding the Lighting LICENSE AGREEMENT FOR SANDY LANE PARK 8 of 29 Equipment, shall remain Company's personal property during the Term of this Agreement. Notwithstanding anything in this Agreement to the contrary, any and all changes to the hard connection between the Lighting Equipment and the monopole shall be conducted by Company, including but not limited to relocation and removal of the Lighting Equipment from the monopole; all cost of any such change shall be borne by the Party requesting or requiring such change. X. INITIAL CONSTRUCTION, MATERIAL ALTERATION, AND RECONSTRUCTION Initial Construction For purposes of this Agreement, Initial Construction shall consist of all excavation, assembly, installation, construction, and similar activities related to the original placement of the Company Facilities on and under the Licensed Premises. Material Alteration For purposes of this Agreement, Material Alteration shall include (i) any alteration requiring excavation of soil and (ii) any change affecting the basic size, shape, or configuration of the Company Facilities, including (but not limited to) removal, replacement, or reconfiguration of the monopole, cellular antenna, or fenced enclosure. Routine maintenance that does not require the excavation of soil shall not constitute a Material Alteration, Reconstruction For purposes of this Agreement, Reconstruction shall consist of any work on the Company Facilities that requires repair, alteration, or replacement of more than fifty percent of all Company Facilities. City Approval of Plans Required Company shall not commence any Initial Construction, Material Alteration, or Reconstruction of all or part of the Company Facilities until construction plans have been approved by the City in writing. Plans shall only be approved if they demonstrate that the proposed Initial Construction, Material Alteration, or Reconstruction will not interfere with any other person's (including the City's) communication facilities or other facilities or operations. Process for Approval The Company shall deliver to the City four (4) complete sets of detailed construction plans and specifications ("Proposed Plans") showing each and every proposed element, facility, or improvement and the precise location thereof on the Licensed Premises. Within ten (10) days of receiving the Proposed Plans, the City shall conduct its review and decide whether to approve or disapprove the Proposed Plans. To the extent the City disapproves all or any part of the Proposed Plans, the City shall, within fifteen (15) days of receiving such plans, provide Company a written explanation of the reasons for disapproval and suggested cures, if any. Company shall then submit revised Proposed Plans, which shall be subject to the same review and approval process described herein. After Proposed Plans have been approved by the City in writing, they will be referred to as the "Approved Plans." LICENSE AGREEMENT FOR SANDY LANE PARK 9 of 29 Revision of Approved Plans If permitting or regulatory changes or unforeseen conditions discovered during Initial Construction, Material Alteration, or Reconstruction prevent the Company from adhering to Approved Plans, the Company shall submit revised construction plans for approval ("Revised Plans"). Revised Plans shall be subject to the review and approval process described above. After Revised Plans have been approved by the City in writing, they will be referred to as the "Revised Approved Plans." Plans for Initial Construction Company shall perform Initial Construction in accordance with the initial Approved Plans, which are attached to this Agreement as Exhibit "B" and incorporated herein for all purposes as though set forth at length. Company may deviate from the initial Approved Plans only by following the process described above regarding "Revision of Approved Plans." Time Period for Initial Construction Initial Construction of Company Facilities must be commenced within sixty (60) days of the Effective Date of this Agreement. Initial Construction of all Company Facilities must be fully completed within one hundred and twenty (120) days of the Effective Date of this Agreement. The period for completion of Initial Construction is referred to as the "Initial Construction Period." Approval for Material Alteration or Reconstruction If all or any portion of the Company Facilities requires Material Alteration or Reconstruction, the Company must submit a written request to the City at least thirty (30) days prior to Company's proposed action. Plans for any Material Alteration or Reconstruction must comply with the "Process for Approval" outlined above. In performing any Material Alteration or Reconstruction, Company shall comply with all other requirements of this Agreement. Time Period for Material Alteration or Reconstruction The City shall prescribe a time period during which any Material Alteration or Reconstruction must be accomplished. Schedule for Construction, Material Alteration, or Reconstruction Prior to commencing any Initial Construction, Material Alteration, or Reconstruction of the Company Facilities, Company shall submit a proposed construction schedule for City approval (the "Construction Schedule"). To the extent any deviations from the Construction Schedule are required, Company shall submit amendments for City approval. Company agrees that Initial Construction of the Company Facilities shall be complete within the Initial Construction Period re;;ardless of any amendments to the Construction Schedule for the Initial Construction. Securin>; of Site Company shall erect and maintain or cause to be erected and maintained construction chain link fencing that will inhibit members of the public from LICENSE AGREEMENT FOR SANDY LANE PARK 10 of 29 accessing the site of any Initial Construction, Material Alteration, or Reconstruction. The Temporary Staging Area of Tract Five must be secured in this same manner during the Initial Construction Period. Protection of Structures and Equipment Company acknowledges that other persons, including the City, may have structures and/or equipment on the Licensed Premises or Sandy Lane Park. Company agrees that it will use commercially reasonable efforts to protect the integrity of such structures and equipment. In the event that Company's activities may threaten such structures or equipment, Company agrees to immediately notify the City as far in advance as possible and to cooperate with the City and the applicable other persons in protecting such structures and/or equipment. Interference with Other Operations Prohibited During Initial Construction, Material Alteration, or Reconstruction of the Company Facilities, Company shall not interfere with any operations or activities that exist at the time of the Initial Construction, Reconstruction, or Material Alteration and that are performed by the City or any person acting on the City's behalf. If the Company's Initial Construction, Material Alteration, or Reconstruction ever interferes with any such operations or activities, Company shall immediately cease the interfering activity; provided, however, that Company may, following prior written notice to the City and only at times approved by the City, conduct intermittent testing to determine if the interference has been eliminated. If Company does notcease any Initial Construction, Material Alteration, or Reconstruction after Company has constructive notice of interference, the City may immediately take whatever actions are necessary to eliminate the interference, including, without limitation, removing the Company Facilities, The City shall not be liable for any damage to the Company or Company Facilities that may result from elimination of such interference; provided, however, that the City will provide Company with notice of any such action as soon as practicable. Minimizing Impact of Vegetation The Company shall be authorized to disturb or remove the surface and subsurface of the Licensed Premises and Sandy Lane Park only to the extent provided in Approved Plans or Revised Approved Plans. In exercising such authority, the Company shall use all reasonable efforts to minimize removal of or damage to existing vegetation, including the use of orange mesh fencing around the drip line of any tree to protect the tree. Restoration of Improvements To the extent any fences or other improvements are destroyed, removed, or altered in connection with any Initial Construction, Material Alteration, or Reconstruction, the Company will reconstruct and restore such improvements in a good and workmanlike manner to a condition that is equal to or better than the one in which such improvements existed prior to commencement of the Initial Construction, Material Alteration, or Reconstruction. Restoration Following Subsurface Installation To the extent any portion of the Company Facilities are placed below ground in a trench or bore, the Company shall LICENSE AGREEMENT FOR SANDY LANE PARK 11 of 29 ensure such trench or bore is promptly filled with clean fill dirt up to the level of surrounding ground. Company shall ensure any fill dirt is compacted to a 90% compression ratio and in accordance with all applicable laws. Company shall provide the City with a report or other written documentation satisfactory to the City to demonstrate that compaction was performed in accordance with this paragraph. Company shall ensure that all excess material excavated from the Licensed Premises is removed and properly disposed of within ten (10) days of excavation. Standards for Initial Construction, Material Alteration, and Reconstruction All Initial Construction, Material Alteration, or Reconstruction shall be performed at Company's sole cost and expense, (1) in a good and workmanlike manner and in strict conformance with the applicable Approved or Revised Approved Plans; (ii) in conformance with applicable building uses and all applicable engineering, safety, and other laws; (ill) in accordance with the highest accepted industry standards of care, skill, and diligence; and (iv) in such a manner as shall not adversely affect the structural integrity or maintenance of the Licensed Premises, Sandy Lane Park, any structures on the Licensed Premises or Sandy Lane Park, or any lateral support of structures adjacent to or in the proximity of the Licensed Premises or Sandy Lane Park. Requirement of "As Built" Plans Within one week of completion of any Initial Construction, Material Alteration, or Reconstruction of the Company Facilities, and prior to the use of such constructed, materially altered, or reconstructed facilities, the Company shall deliver to the City four (4) complete sets of "As Built" construction and engineering plans conforming to the Approved or Revised Approved Plans for the Initial Construction, Material Alteration, or Reconstruction. Ensuring Conformance with Plans The City shall have the right to verify that any Initial Construction, Material Alteration, or Reconstruction complies with the corresponding Approved or Revised Approved Plans. The City may perform any site visits necessary to complete such verification. XI. CASUALTY Definition For purposes of this Agreement, Casualty shall refer to a catastrophic event beyond the reasonable control of the Party, including, but not limited to, fire and natural disaster. Damage to City Property due to Casualty If any City -owned structure on the Licensed Premises or Sandy Lane Park is damaged or destroyed by a Casualty, the City may, in its sole discretion, elect whether to repair or restore the structure. Damage to Company Facilities due to Casualty If Company Facilities on or under the Licensed Premises are damaged or destroyed by a casualty or by any other cause beyond Company's reasonable control, Company may elect one of the following three options. LICENSE AGREEMENT FOR SANDY LANE PARK 12 of 29 (1) Immediately erect on an unused portion of the Licensed Premises temporary Company Facilities, including any supporting structure, while the Company makes repairs or restores the original Company Facilities. Such temporary Company Facilities shall be at a location and pursuant to plans and specifications approved in advance by the City in accordance with the procedures outlined in Paragraph X. On completion of any repair or restoration of the original Company Facilities, Company must remove any temporary Company Facilities and repair any damage that the temporary facilities caused to the Licensed Premises or Sandy Lane Park. (2) Repair or restore the Company Facilities at the same location and in accordance with the most -current Approved Plans or Revised Approved Plans on file with the City. (3) Terminate this Agreement. In the event of Company's termination of this Agreement due to Casualty, the City shall refund to the Company the most recently paid License Fee, pro -rated to reflect the number of days remaining in the then -current Term following the effective date of termination. If Company elects to repair or restore the Company Facilities in accordance with either subsection (1) or (2) above, the Company agrees that such repairs or restoration activities (i) may not interfere with the City's construction or repair operations, if any, and (ii) shall otherwise comply with the requirements for Company Facilities set forth in this Agreement. XII. PERFORMANCE AND PAYMENT BONDS Prior to the commencement of any Initial Construction, Material Alteration, or Reconstruction of the Company Facilities or any other work on the Licensed Premises that requires a cut, opening, or other excavation, Company shall deliver to the City bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed in Sandy Lane Park. The bonds shall guarantee (i) the faithful performance and completion of all construction, maintenance, or repair work in accordance with all requirements, terms, and conditions of this Agreement and (ii) full payment for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of that contract. If any such work is undertaken by a contractor of Company, Company shall also require such contractor to deliver to City bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed by the contractor in Sandy Lane Park. The bonds shall guarantee (i) the faithful performance and completion of all construction, maintenance, or repair work in accordance with the contract between Company and the contractor and (ii) full payment for all wages for labor and services and of all bills for materials, LICENSE AGREEMENT FOR SANDY LANE PARK I3 of 29 supplies and equipment used in the performance of that contract. Such bonds shall name both the City and Company as dual obligees. XIII. SCREENING FENCE No later than the final day of the Initial Construction Period, Company shall install perimeter fencing around Tract One that is no less than a six- foot (6') high chain link fence with fabric for screening, such fence to consist of materials similar to the materials surrounding the adjacent baseball fields as of the Effective Date. Company shall maintain such fencing throughout all Terms of this Agreement. If any Material Alteration (other than final removal of all Company Facilities) or Reconstruction requires temporary removal of all or part of the perimeter fencing, Company shall restore such fencing no later than the final day of the period prescribed by the City for the Material Alteration or Reconstruction. XIV. MAINTENANCE Duty to Maintain At all times during any Term of this Agreement, Company shall, at its sole cost and expense, keep and maintain the Company Facilities and the monopole in a structurally safe and sound condition and in good repair. At all times after completion of Initial Construction, during the Term of this Agreement, City shall, at its sole cost and expense, keep and maintain the City's Lighting Equipment in good condition and repair, including but not limited to electrical wiring, light fixtures, and light bulbs. The City shall not be responsible for maintenance of Company Facilities or for the clearing or removal of trees, shrubs, plants, ice, snow, or debris from the Licensed Premises. Notwithstanding anything in this Agreement to the contrary, any and all changes to the hard connection between the Lighting Equipment and the monopole shall be conducted by Company, including but not limited to relocation and removal of the Lighting Equipment from the monopole; all cost of any such change shall be borne by the Party requesting or requiring such change. Duty to Repair Company shall promptly repair any damage caused in whole or in part by Company, its agents, employees, contractors, or subcontractors to the Company Facilities, the monopole, the City's Lighting Equipment, the Licensed Premises, or Sandy Lane Park. City shall promptly repair any damage caused in whole or in part by City, its agents, employees, separate contractors, or subcontractors to the Company Facilities, the monopole, the City's Lighting Equipment, or the Licensed Premises. Duty to Protect Company shall not cause or permit another person to cause any damage to the Company Facilities, the monopole, the City's Lighting Equipment, the Licensed Premises, or Sandy Lane Park. Company shall be solely responsible for any damage that may occur as a result of Company's action or inaction (where there is a duty to act) or the actions or inactions (where there is a duty to act) of another person acting on behalf of or on permission of the Company. Protection Against Nuisance Company shall not permit the existence of any nuisance on the Licensed Premises and shall keep the Licensed Premises in a clean and safe condition and free of any explosive, flammable, or combustible material that would LICENSE AGREEMENT FOR SANDY LANE PARK 14 of 29 increase the risk of fire; provided that Company may keep and use a backup power generator and lead acid batteries on the Licensed Premises so long as such use is in compliance with all applicable laws and as long as Company has posted the use of any such Hazardous Materials as referenced in Paragraph XVIII and Paragraph XXXIII. Company shall not permit the accumulation of junk, debris or other unsightly materials on the Licensed Premises. Maintenance of City Structures and Equipment At all times during any Term of this Agreement, Company shall, at its sole cost and expense, keep and maintain in a structurally sound and safe condition any structures or equipment owned by the City that Company is allowed to use pursuant to Paragraph II. XV. LIMITATION ON FREQUENCIES Use of Company Facilities shall be limited to transmission of 19754990 MHz; 2145-2155 MHz; 1895-1910 MHz; 1745-1755 MHz. Prior to each Renewal Term, Company shall provide City with any changes in frequencies. XVI. MAXIMUM PERMISSIBLE EXPOSURE Company shall, at its sole cost and expense, ensure that Company Facilities are operated in compliance with radiated power density maximum permissible exposure ("MPE") limits for workers and the general public as specified by applicable communications laws. Company shall at all times operate Company Facilities in a manner that will not cause the Company Facilities to exceed the permissible MPE. Company shall comply with all MPE guidelines promulgated by the Federal Communications Commission ("FCC") or any other authority succeeding to the regulatory powers thereof, including those guidelines provided by the FCC Office of Engineering &Technology Bulletin 65, Edition 97-01. The Company shall keep all MPE studies, including MPE studies conducted as part of Company's due diligence, with Company's FCC license. A copy of the latest MPE or radiation emission permissible shall be sent to the City and shall be kept on file and available for review by members of the public during the City's normal business hours. Company shall provide City with an MPE study within 60 days of commencement of operation of the Company Facilities. Company shall be in compliance with then - current MPE guidelines as established by FCC. XVII. TOWER COMPLIANCE WITH COMMUNICATIONS AND AVIATION LAW Company shall, at its sole cost and expense, ensure that the monopole and all support facilities located thereon are operated in compliance with all applicable federal laws and regulations governing communications and aviation. Specifically, Company shall register any tower as required by the FCC. Company shall also apply to the Federal Aviation Administration ("FAA") or any other authority succeeding to the regulatory powers thereof for certification approval of the monopole. Company shall provide the City with a copy of such certification approval and documentation of any height limitations prescribed by the FAA. In addition, if required by the FAA, Company shall maintain flashing tower lights in accordance with federal requirements and shall maintain a device designed to control tower lights automatically and an alarm system designed to automatically detect failures in such lights. If such lighting is required by LICENSE AGREEMENT FOR SANDY LANE NARK I5 of 29 the FAA, then within thirty (30) minutes of any failure or malfunction of any flashing tower lights, Company shall notify the nearest FAA Flight Service Station. At least once per month, Company shall visually inspect all FAA -required tower lights to ensure the lights and automatic systems are functioning properly. Company shall also provide City with a copy of its perimeter flight elevation buffer plan for the monopole, if such plan is required by the FAA. XVIII. COMPLIANCE WITH OTHER LAWS, ORDINANCES, AND REGULATIONS In addition to any other requirements specified in this Agreement, Company shall comply with all applicable federal, state, and local statutes, ordinances, rules, and regulations, including, but not limited to: (i) laws governing the safety of persons or property or their protection from damage, injury, or loss; (ii) valid and enforceable City ordinances, rules, and policies related to construction permits, construction bonds, permissible hours of construction, operations during peak traffic hours, barricading requirements, and any other construction rules or regulations that may be promulgated from time to time; (iii) the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq., and the rules, regulations, policies, and orders promulgated thereunder by the Federal Communications Commission or any other federal agency that succeeds in whole or in part to its jurisdiction; and (iv) laws pertaining to environmental protection, restoration, or reclamation, or to the health, safety, use, or possession of Hazardous Materials (as defined in this Agreement) including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9061 et seq. ("CERCLA"), the Hazardous Materials Transportation Act, 49 U.S.C. § 1802, and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. Company shall comply with any order, decision, injunction, judgment, award, or decree of any public body or authority having jurisdiction over Company, the Company Facilities, and/or Company's activities and obligations. Company's duty shall include the duty to keep abreast of all changes in applicable law. Should any provision of law applicable to Company, the Company Facilities, and/or Company's activities and obligations be amended or revised, Company shall meet all newly applicable standards within the time frame set out in such amended or revised law, or if no time frame is set forth therein for compliance, Company shall have 90 days from the approval of such amendment or revision to meet all newly applicable standards. Company shall have the sole responsibility for costs, fees, or expenses associated with compliance with applicable law and with this Paragraph. XIX. PUBLIC SAFETY Company shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Company Facilities and Company's use of the Licensed Premises and Sandy Lane Park. During any Initial Construction, Material Alteration, or Reconstruction, Company shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public. The use of traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices. Company shall utilize appropriate warning lights at all construction and maintenance sites where one or more traffic lanes are closed or obstructed during LICENSE AGREEMENT FOR SANDY LANE PARK 16 of 29 nighttime conditions. Company shall also take all necessary precautions and shall provide all necessary protection to prevent damage, injury, or loss to (a) all persons accessing the Company Facilities or portions of the Licensed Premises on which any construction is being performed by or on behalf of the Company; (b) all work performed on the Licensed Premises and all materials and equipment to be incorporated therein that are under the care, custody, or control of the Company, or the Company's employees, agents, contractors, or subcontractors, regardless of whether such material and equipment is stored on or off the Licensed Premises; and (c) other property on or adjacent to the Licensed Premises. XX. NO UNDUE BURDEN Company's operations and actions under this Agreement shall be accomplished so as not to place an undue burden on the present or future use of Sandy Lane Park by the City or the public. If the City determines, in its sole discretion, that the Company and the Company Facilities place an undue burden on any portion of Sandy Lane Park, Company's sole cost and expense and upon no less than six (6) months' prior written notice thereof by the City, the Company shall modify the Company Facilities or take other actions reasonably determined by the City to be in the public interest to remove or alleviate the burden. XXI. RETENTION OF RIGHTS BY THE CITY All rights granted under this Agreement are subject and subordinate to the prior and continuing right of the City to, among other things, (1) use and maintain all or any part of Sandy Lane Park and the Licensed Premises; (ii) sell or otherwise dispose of all or any part of Sandy Lane Park, including but not limited to the air space above and the subsurface area below the Company Facilities; and (iii) construct, operate, change, modify, or relocate signals, communication or other lines, pipelines, electric lines, the Lighting Equipment, and other facilities and operations of the City in, on, upon, over, under, across, along, or through Sandy Lane Park or the Licensed Premises, or to permit any person to do so for the City, all or any of which may be freely done at any time by the City or any person with the City's permission, without liability to Company or to any other person for compensation; provided, however, the foregoing rights shall not be exercised by a person in a manner that unreasonably and materially interferes with Company's permitted use of the Licensed Premises. Any normal business operations of the City on Sandy Lane Parlc or the Licensed Premises or sale of the property by the City shall have priority over Company's Construction and Operation of the Company Facilities, and in the event of any conflict that cannot be cured by the Parties using reasonable efforts to do so within a reasonable period of time, either Party may terminate this Agreement, and neither Party shall have any further rights or obligations hereunder except for those rights and obligations vested or accrued prior to the termination of this Agreement. In such event, City shall refund to Company the unearned portion of the pre -paid License Fee within sixty (60) days of the effective termination date. XXII. NO SERVICES The City shall not furnish the Company with any utilities, cleaning, lighting, security, fence, gate, or any other items or services for the Licensed Premises. LICENSE AGREEMENT FOR SANDY LANE PARK 17 of 29 XXIII. UTILITIES Company shall not use the City's electrical power or any other utility services purchased by the City for construction, installation, operation, maintenance, repair, or reconstruction of the Company Facilities. Company may, at its sole cost, risk, and expense, draw electricity and other utilities on the Licensed Premises or obtain separate utility service from any utility company that provides such service. If Company chooses to draw electricity or other utilities, Company shall arrange for the installation of a separate meter as well as a separate main breaker for electrical service. The City shall have the right to approve the exact location of the proposed utility routes and the manner of installation. City shall be solely responsible for all utility costs incurred for use and operation of the City's Lighting Equipment located on the monopole. XXIV. PERMITS Company shall obtain and pay for all necessary permits, licenses, and other approvals required by or from any governmental agency or entity in connection with the construction, installation, operation, maintenance, repair, or reconstruction of the Company Facilities and use of the Licensed Premises or any other City property related to activities within the scope of this Agreement. The City agrees to cooperate reasonably with Company in executing such documents required for the Company to obtain permits, licenses, or other government approvals needed. XXV. TAXES The Company further agrees to pay for all taxes assessed or imposed by any governmental entity in connection with the construction, installation, operation, maintenance, repair, or reconstruction of the Company Facilities and the use of the Licensed Premises or any other City property related to activities within the scope of this Agreement. XXVI. INSURANCE Duty to Acquire and Maintain Company shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverages of the types and amounts specified herein, naming the City as an additional insured and covering all public risks related to the use, occupancy, condition, maintenance, existence, or location of Sandy Lane Park and the construction, installation, operation, maintenance, repair, reconstruction, or condition of the Company Facilities. The insurance required hereunder may be met by a combination of self-insurance and primary and excess policies. Types and Amounts of Coverage Required Commercial General Liability: $5,000,000.00 per occurrence, including coverage for the following: (i) Premises Liability; (ii) independent contractors; (iii) products/completed operations; (iv) personal injury; (v) contractual liability; (vi) explosion, collapse, and underground property damage. LICENSE AGREEMENT FOR SANDY LANE PARK 18 of 29 Property Damage Liability: $5,000,000.00 per occurrence Umbrella Policy $5,000,000.00 Automobile Liability: $1,000,000.00 per accident, including, but not limited to, all owned, leased, hired or non -owned motor vehicles used in conjunction with the rights granted under this Agreement Worker's Compensation: As required by law Employer's Liability: $1,000,000.00 per accident. Revisions to Required Coverage At the reasonable recommendation of the City's Risk Manager, the City may at any time revise insurance coverage requirements and limits required by this Agreement. Company agrees that within thirty (30) days of receipt of written notice from the City, Company will implement all such revisions requested by the City. The policy or policies of insurance shall be endorsed 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. Underwriters and Certificates Company shall procure and maintain its insurance with underwriters who are authorized to do business in the State of Texas and who are acceptable to the City in terms of solvency and financial strength. Within thirty (30) days following execution of this Agreement, Company 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, Company shall, on demand, provide the City with evidence that it has maintained such coverage in full force and effect. Deductibles LICENSE AGREEMENT FOR SANDY LANE PARK 19 of 29 Deductible or self -insured retention limits on any line of coverage required herein shall not exceed $1,000,000.00 in the annual aggregate unless the limit per occurrence or per line of coverage, or aggregate is otherwise approved by the City. No Limitation of Liability The insurance requirements set forth in this Paragraph XXVI and any recovery by the City of any sum by reason of any insurance policy required under this Agreement shall in no way be construed or affected to limit or in any way affect Company's liability to the City or other persons as provided by this Agreement or law. XXVII. ASSIGNMENT AND MORTGAGE The Company may not sell, assign, or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the City. Any attempted assignment without the City's consent shall be void, said consent deemed approved if not received in ninety (90) days. If City's consent is required pursuant to this Paragraph XXVII, City shall have up to ninety (90) days to review and either approve or reject any request therefor. City acknowledges Company's right to mortgage or otherwise encumber Company's interest in this Agreement and the Company Facilities. The City agrees to grant in favor of mortgagee or lender of Company all reasonable estoppels, non -disturbance agreements, default cure periods, and other similar rights as are normally granted in such transactions. Prior to permitting a mortgagee or lender to obtain a mortgage or otherwise encumber Company's interest in this Agreement or the Company Facilities, Company will use commercially reasonable efforts to cause such mortgagee or lender to execute a Subordination, Non -disturbance and Attornment Agreement ("SNDA") in form and substance reasonably satisfactory to the City, Company, and the mortgagee/lender. The SNDA, among other things, shall provide that (i) a mortgagee or lender shall have only those rights granted to the Company with respect to the Agreement or Company Facilities that serves as the underlying collateral; and (ii) if the mortgagee or lender forecloses or otherwise enforces its right to divest Company of Company's interest in such collateral, then such mortgagee or lender shall take such collateral subject to the terms of this Agreement. XXVIII. RIGHT OF ENTRY The City reserves to itself, its agents, assigns, and employees the right to enter the Licensed Premises at any time for the purpose of consulting with the Company; malting inspection of the Company Facilities (excluding the right to touch or make any hard connections to the Company Facilities for any reason other than for the sole purpose of maintaining and making repairs to the Lighting Equipment); maintaining and making repairs and improvements to the Lighting Equipment or other City -owned property; and developing oil, gas or other mineral resources (provided such development in no way interferes with the structural integrity of the monopole or Company's other equipment located thereon). In addition, the City does not relinquish the right to control the management of the Licensed Premises as a park, or the right to enforce all necessary and proper rules for the management and operation of the same. Members of the City's police, fire, parks, LICENSE AGREEMENT FOR SANDY LANE PARK - 20 of 29 code enforcement, health, and other designated departments shall have the right at any time to enter any portion of the Licensed Premises (without causing or constituting a termination of the Agreement) for the purpose of inspecting the Company Facilities, maintaining the Lighting Equipment or other City -owned property located thereon, and performing any and all activities necessary for the proper conduct and operation of public property; provided that no unreasonable interference to Company's use of the Licensed Premises and operation of the Company Facilities thereon is caused by such access. Notwithstanding anything in this Agreement to the contrary, any and all changes to the hard connection between the Lighting Equipment and the monopole shall be conducted by Company, including but not limited to relocation and removal of the Lighting Equipment from the monopole; all cost of any such change shall be borne by the Party requesting or requiring such change. The City will at all times have keys with which to unlock all doors and gates on the Licensed Premises, and Company will not change or alter any lock thereon without the City's permission. XXIX. MINERALS There is exempted from this Agreement all oil, gas, and minerals in and under the lands above described and the right to mine and remove the same; provided such mining and removal in no way interferes with the structural integrity or operation of the monopole or Company's other equipment located thereon. This Agreement is made subject and subordinate to the terms and provisions of any valid oil, gas, and/or mineral lease or leases executed by the City either before or after commencement of this Agreements provided such future agreements include non -disturbance and non- interference obligations for the lessee or licensee therein with regard to Company's operation of the Company Facilities on the Licensed Premises. x:XX. EXPIRATION AND TERMINATION Termination Without Cause From and after the fifth anniversary of the Effective Date, this Agreement may be terminated by either Party, with or without cause, by providing the other Party with no less than one (1) year's written notice prior to the intended termination date. Termination For Cause Either Party may terminate this Agreement immediately by providing written notice to the other Party in the event of (i) failure of Company to pay any license fee or other monetary consideration within thirty days of the day such payment is due; or (ii) either Party becoming subject to a bankruptcy proceeding; being adjudicated insolvent; failing to pay its debts generally as they become due; or seeking or acquiescing to appointment of any trustee, receiver, master, custodian or liquidator; or (iii) failure by the other Party to perform' any covenant, condition or term of this Agreement and such defaulting Party fails to diligently pursue a cure thereof to its completion after thirty (30) days' written notice specifying such failure of performance or default. The Party terminating this Agreement for cause shall also be free to pursue any and all other legally available remedies against the other Party. Duties Following Termination or Expiration LICENSE AGREEMENT FOR SANDY LANE PARK 21 of 29 Following expiration or termination of this Agreement, Company shall promptly remove all Company Facilities and personal property; provided that Company shall not be obligated to remove any foundations or underground conduits located more than six feet (6') below grade. Company shall also restore the Licensed Premises to substantially the same state and environmental condition in which the premises existed prior to Company's use - ordinary wear and tear, City -caused damage, and Casualty losses excepted — and repair any damage to the Licensed Premises or Sandy Lane Park, including, but not limited to, any damage that Company causes during removal of the Company Facilities to any structures or equipment owned or licensed by the City or any other person. Following removal of all Company Facilities and repair of any damage, Company shall relinquish possession of the Licensed Premises to the City. At the request of City, at such time of removal of facilities by Company, Company shall install a pole with light fixtures in same or similar standard to the other light poles installed at the Licensed Premises at that time. Failure to Comply with Post -Termination Duties If Company fails to remove all or any part of the Company Facilities or to restore the Licensed Premises or Sandy Lane Park as required hereunder, the City may, at its sole election, (i) remove the Company Facilities and otherwise restore the Licensed Premises and Sandy Lane Park and invoice the Company for the City's reasonable and actual costs and expenses incurred, such invoice to be due and payable within thirty (30) days of its delivery to Company; or (ii) following no less than thirty (30) days prior written notice to Company, take and hold any Company Facilities and personal property as City's sole property; or (iii) pursue any remedy at law or in equity available to the City. If Company fails to surrender the Licensed Premises to the City following termination or expiration, all liabilities and obligations of Company hereunder shall continue in effect until the Licensed Premises is surrendered. Duties and Obligations to Survive Termination or Expiration No termination or expiration shall release Company from any liability or obligation resulting from any event happening prior to the completion or all post -termination duties or, if later, the date on which the City exercises the last of its available remedies for Company's failure to meet its post -termination duties. Survival Terms and conditions of this Agreement which by their sense and context survive the termination, cancellation or expiration of this Agreement will so survive. XXXI. LIABILITY The City shall not be liable to the Company nor to the employees, agents, patrons, or visitors of the Company for damages on account of injuries to persons or property, including injuries resulting in death, due to any of the Company's improvements now or hereafter located on the Licensed Premises being improperly constructed or being or becoming out of repair; and the Company hereby waives all defects in the Company Facilities, as well as in the Licensed Premises, AND AGREES TO HOLD HARMLESS AND INDEMNIFY THE CITY FROM ALL CLAIMS FOR DAMAGES ARISING FROM THE COMPANY FACILITIES LICENSE AGREEMENT FOR SANDY LANE PARK 22 of 29 OR COMPANY'S USE OF THE LICENSED PREMISES, excluding any damages caused by the City's, or the City's employees', agents', separate contractors', or subcontractors' gross negligence or willful misconduct, or otherwise from the City's use, operation, maintenance, repair, or replacement of the Lighting Equipment. XXXII. SURFACE DAMAGES The City will be due all proceeds resulting from damages related to easements, mineral exploration, or other causes. The Company shall receive a percentage of surface damages resulting from easements and/or gas exploration that cause a loss of use of the Licensed Premises. The percentage will be agreed upon between the City and the Company upon each occurrence. x:XXIII. PROTECTION OF THE ENVIRONMENT No Hazardous Materials or Storage Facilities The City has no knowledge of any Hazardous Materials on, under, over, or about Sandy Lane Park as of the Effective Date of this Agreement and hereby represents and warrants that it shall not knowingly, nor permit any third party to, use, handle, or store any Hazardous Materials on, under, over, or about Sandy Lane Park or the Licensed Premises in violation of any applicable laws. Company shall not handle or store any Hazardous Materials on the Licensed Premises or Sandy Lane Park, except that the Company may, in compliance with applicable environmental laws, use and store (i) Hazardous Materials in such amounts and types that are commonly used in connection with the operation of the Company Facilities, (ii) general cleaning materials that may contain Hazardous Materials, and (iii) small amounts of fuel necessary for the operation of a back-up generator for the Company Facilities. Company shall not introduce, use, generate, store, accept, or dispose of on, under, or about, transport across, or permit to exist on the Licensed Premises or Sandy Lane Park any "treatment, storage or disposal facility" or "underground storage tank," as those terms are defined under the environmental laws. For purposes of this Agreement, "Hazardous Materials" shall mean potentially dangerous hazardous wastes, toxic substances or related materials, including, but not limited to, pollutants, asbestos, polychlorinated biphenyl (PCB), petroleum or other fuels (including crude oil or any fraction or derivative thereof) and underground storage tanks, and substances considered hazardous, toxic or the equivalent pursuant to applicable laws. Any Hazardous Materials used by Company on the Licensed Premises shall be posted on site and a list shall be given to City. No Threat to Health or Environment Company shall not create or aggravate any condition at Sandy Lane Parlc or the Licensed Premises that could present a threat fo human health or to the environment. XXXIV. PROHIBITION AGAINST LIENS The Company shall not do any act or make any contract that may be purported to create or be the foundation of any lien on or any interest in the Licensed Premises or Sandy Lane Park. Any such act, contract, or lien LICENSE AGREEMENT FOR SANDY LANE PARK 23 of 29 attempted to be created shall be void. Should any purported lien on the Licensed Premises be created or filed, the Company shall, at its sole expense, liquidate and discharge same within ten (10) days after notice from the City to do so �V. NOTICES All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (i) hand -delivered to the other Party, its agent, employee, servant, or representative, or (ii) received by the other Party by reliable overnight courier or United States Mail, postage prepaid, return receipt requested, at the address stated below or to such other address as one Party may from time to time notify the other in writing. To THE CITY: Director Parks and Community Services City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 With a copy to: Department of Law City of Fort Worth Attn: Denis C. McElroy 1000 Throckmorton Fort Worth, Texas 76102 To COMPANY: T-Mobile USA, Inc. 12920 SE 38t" Street Bellevue, WA 98006 Attn: PCS Lease Administrator with a copy to: Attn: Legal department and with a copy to: T-Mobile West Corporation 7668 Warren Parkway Frisco, TX 75034 Attn: Lease Administration Manager �:XXVI. INDEPENDENT CONTRACTOR It is expressly understood and agreed that Company shall operate as independent entity.in each and every respect hereunder and not as an agent, representative, or employee of the City. Company shall have the exclusive control and the exclusive right to control all details and day-to-day operations and activities relative to operation of the Company Facilities and shall be solely responsible for the acts and omission (where there is a duty to act) of its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, servants, employees, contractors, subcontractors, licenses, and invitees. Nothing contained in this Agreement shall be construed as the creation of a partnership or joint enterprise between the City and Company. �:XXVII. FORCE MAJEURE In the event either Party's performance of any of the terms, conditions, or obligations required by this Agreement is prevented by a cause or event LICENSE AGREEMENT FOR SANDY LANE PARK 24 of 29 that is not within that Party's reasonable control, the Party's non-performance shall be deemed excused for the period of such inability. Causes or events that are not within the Parties control shall include, but not be limited to, acts of God, strikes, sabotage, riots, civil disturbances, failure or loss of utilities, explosions, and natural disasters. XXXVIII. HEADINGS The section headings contained herein are solely for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. XXXIX. ENTIRETY OF AGREEMENT This instrument (including all attachments, schedules, and exhibits attached hereto) constitutes the entire understanding and agreement of the City and Company as to use of the Licensed Premises and Sandy Lane Park. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties. XL. CHOICE OF LAW;VENUE This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, 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 0- Fort Worth Division, IN WITNESS WHEREOF, the parties hereto have executed this agreement this day of 20 CITY OF FORT WORTH Assistant City Manager APPROVED AS TO T-MOBILE WEST CORPORATION By: Name: Jared Ledet Title: Director of Regional Development III rnntract Authorization SI IAl. RECORD CITY SECRETARY FT.'NORTH, TX LICENSE AGREEMENT FOR AND L GAL TY Denis C McElroy A� Assistant City Att M&C L-14651 M&C L44904 G2��t�;fA� RAC®RD �fTY ���R�TARY T WORTH, TX LICENSE AGREEMENT FOR SANDY LANE PARK 26 of 29 ACKNOWLEDGEMENT THE STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on this day ofkad,, 2010, by Charles W. Daniels, Assistant City Manager of the City of Fort Worth, exas, a municipal corporation, on behalf of the City of Fort Worth, Texas. MARIA S. SANCHEZ MY COMMISSION EXPIRES December 14, 2013 ACKNOWLEDGMENT THE STATE OF�-P.��iS § Public, State of Texas COUNTY OF C I I � § Thi instru ent wa�j acknowledged before me on this Zo�day of 2010, by P;� ze'f of T-Mobile West Corporation, a Dela are corporation, on behalf of said company. KIMBERLY LASHANN DIXSeS My July 01 ! 2013� Notary Pudic, State o�as My commission expires'2v rs My commission number: OFF1Ca�rL RECORD CITY SECRETARY FT. WORTH, TX LICENSE AGREEMENT FOR SANDY LANE PARK 27 of 29 SEE ATTACHED SURVEY AND LEGAL DESCRIPTION LICENSE AGREEMENT POR SANDY LANF_ PARK 28 of 29 o:sEr92{ice a7adc A1Nn00 1NVaar1 I 8L££-lLL (KZ) :XV3 'u1a0M EO w rD tec=_cs l'oNis�u (Y 3NOHd Xi 1803 +rsi� ££££-lLL lZ) m `— AT;AY.SYc!t3S�SV.t5 EE9_ :. z O S:ldtltiJ 53?�ME34'lG "11rA d-8g�z dG i �{08 °-t�. 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'e :e S., 5 J u� m .__MMM ..0 �.00 .-.bs ., Vil 3\y.%\ �.ow..-a oi No n &IN NINE E No um Do u Oz t W06 i ._.__, .. _ oo 2�8E vE " tEN on I — y aege ' - 3st.ez� �3N � ' E,� mQ o . - m _ aaE _iY u _ uS W of OM 106 00 C r-em_ rMEND rv_ (n mor mor FIELD NOTES LEASE AREA BEING a 0.007 acre (320.00 sq ft) tract and being all that certain lot, tract or parcel of land situated in the David Hitson Survey, Abstract No. 665, in the City of Fort Worth, Tarrant County, Texas, and being part of a called 26.5 acre tract described in a deed from Susan Sutton McKee, Ind. Executrix of the Est. of Frank McKee, deceased, et al to City of Fort Worth as recorded in Volume 4374, Page 729, Deed Records of Tarrant County, Texas, and being more particularly described as follows: COMMENCING from a point on the east line of Sandy Lane, at the northwest corner of said 26.5 acre tract, from which point a 1/2 inch iron rod (capped) found at the northwest corner of Lot 10, Block 1, Fair Meadows Addition according to the plat thereof recorded in Volume 388-46, Page 944, bears N 89°13'39" E a distance of 10.00 feet and N 00°28'39" E a distance of 300.59 feet, for a reference; THENCE S 00°28'39" W along the east line of said Sandy Lane and the west line of said 26.5 acre tract a distance of 223.45 feet and S 89°31'21" E across said 26.5 acre tract a distance of 618.45 feet to a 1/2 inch iron rod set at the POINT OF BEGINNING of said lease area; THENCE N 80°40'S6" E across said 26.5 acre tract a distance of 16.00 feet to a 1!2 inch iron rod set, for a corner; THENCE S 09° 19'04" E across said 26.5 acre tract a distance of 20.00 feet to a 1/2 inch iron rod set, for a corner; THENCE S 80°40'S6" W across said 26.5 acre tract a distance of 16.00 feet to a 1/2 inch iron rod set, for a corner; THENCE N 09°19'04" W across said 26.5 acre tract a distance of 20.00 feet to the POINT OF BEGINNING and containing 0.007 acres (320.00 sq ft) of an also being known as 2001 Sandy Lane, Fort Worth, Texas 76112. I, Ronald D. Wimberley, Registered Professional Land Surveyor, State of Texas, do certify that the field notes hereon are a true, correct and accurate representation of the property as determined by an on the ground survey conducted on June 21, 2008, under my supervision. Ronald D. Wimberley, R.P.L.S. No. 6005 DATE: 6-23-08 JOB NO. 08-0076 �F- •OF• T�, �:0: kq o•au f RONALD D. WIMBERLEY o P 6005 c �� Site Name: Sandy Lane Park Site No.: DA 2588-A WIMBERLEY SURVEYING PROFESSIONALS P.O. BOX 93 ROCKWALL, TEXAS 75087 214-771-3333 FIELD NOTES ACCESS EASEMENT BEING all that certain lot, tract or parcel of land situated in the David Hitson Survey, Abstract No. 665, in the City of Fort Worth, Tarrant County, Texas, and being part of a called 26.5 acre tract described in a deed from Susan Sutton McKee, Ind. Executrix of the Est. of Frank McKee, deceased, et al to City of Fort Worth as recorded in Volume 4374, Page 729, Deed Records of Tarrant County, Texas, and being a 15 feet in width access easement, the centerline of said easement being more particularly described as follows: COMMENCING from a point on the east line of Sandy Lane, at the northwest corner of said 26.5 acre tract, from which point a 1/2 inch iron rod (capped) found at the northwest corner of Lot 10, Block 1, Fair Meadows Addition according to the plat thereof recorded in Volume 388-46, Page 944, bears N 89°13'39" E a distance of 10.00 feet and N 00°28'39" E a distance of 300.59 feet, for a reference; THENCE S 00°28'39" W along the east line of said Sandy Lane and the west line of said 26.5 acre tract a distance of 637.94 feet to the POINT OF BEGINNING of said easement; THENCE N 89°21'27" E across said 26.5 acre tract a distance of 45.75 feet to a point at the beginning of a curve to the left, for a corner; THENCE across said 26.5 acre tract and along said curve having a radius of 91.42 feet, an arc length of 43.61 feet, being subtended by a chord of N 75°41'25" E a distance 43.20 feet to a point at the beginning of a curve to the right, for a corner; THENCE across said 26.5 acre tract and along said curve having a radius of 887.82 feet, an arc length of 188.70 feet, being subtended by a chord of N 61°36'31" E a distance 188.35 feet to a point at the beginning of a curve to the left, for a corner; THENCE across said 26.5 acre tract and along said curve having a radius of 432..08 feet, an arc length of 67.85 feet, being subtended by a chord of N 56°58'08" E a distance 67.78 feet to a point, for a corner; THENCE N 49°58'28" E across said 26.5 acre tract a distance of 408.96 feet to the POINT OF TERMINATION of the centerline of said 15 feet in width access easement. I, Ronald D. Wimberley, Registered Professional Land Surveyor, State of Texas, do certify that the field notes hereon are a true, correct and accurate representation of the property as determined by an on the ground survey conducted on June 21, 2008, under my supervision. Ronald D. Wimberley, R.P.L.S. No. 6005 DATE: 6-23-08 JOB NO. 08=OQ'I� �NALD D. WIMBERLEY -t P 6005 P ��- y • of o�.�0 •f :: vF SUR Site Name: Sandy Lane Park Site No.: DA 2588-A WIMBERLEY SURVEYING PROFESSIONAI:S P.O. BOX 93 ROCKWALL, TEXAS 75087 214-771-3333 FIELD NOTES UTILITY EASEMENT BEING all that certain lot, tract or parcel of land situated in the David Hitson Survey, Abstract No. 665, in the City of Fort Worth, Tarrant County, Texas, and being part of a called 26.5 acre tract described in a deed from Susan Sutton McKee, Ind. Executrix of the Est. of Frank McKee, deceased, et al to City of Fort Worth as recorded in Volume 4374, Page 729, Deed Records of Tarrant County, Texas, and being a 5 feet in width utility easement, the centerline of said easement being more particularly described as follows: COMMENCING from a point on the east line of Sandy Lane, at the northwest corner of said 26.5 acre tract, from which point a 1/2 inch iron rod (capped) found at the northwest corner of Lot 10, Block 1, Fair Meadows Addition according to the plat thereof recorded in Volume 388-46, Page 944, bears N 89°13'39" E a distance of 10.00 feet and N 00°28'39" E a distance of 300.59 feet, for a reference; THENCE N 89°13'39" E along the north line of said 26.5 acre tract and the south line of said Lot 10 a distance of 469.19 feet and S 00°46'21" E across said 26.5 acre tract a distance of 2.53 feet to the POINT OF BEGINNING of said easement; THENCE S 32°54'14" E across said 26.5 acre tract a distance of 276.27 feet to the POINT OF TERMINATION of the centerline of said 5 feet in width utility easement. I, Ronald D. Wimberley, Registered Professional Land Surveyor, State of Texas, do certify that the field notes hereon are a true, correct and accurate representation of the property as determined by an on the ground survey conducted on June 21, 2008, under my supervision. Ronald D. Wimberley, R.P.L.S. No. 6005 DATE: 6-23-08 JOB N0.08-0076 � � F ............................... RONALD D. WIMBERLEY 6005 NQ��� SURN Site Name: Sandy Lane Park Site No.: DA 2588-A WIMBERLEY SURVEYING PROFESSIONALS P.O. 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Q O 1 - _ - - - a ¢ W oO �`— W i¢ ¢ Fm�ow �?p b J -- o _- o= - � �w w w L4 - LL� ,, 0-1Z 9-.1 .9-.I -' ZO rc t-" _ - - oa Z w _ Ada a Qz4 zno M LL J m - ¢ - - toM wLL�Mn Q222��� < vwi o _croe to_ _ 03 to 0 _ - w jIr 35 wo VOoa m-Ow1-_1/�¢tta �� O Cn U _ n+ r> to 0 • • • DATE: Tuesday, December 15, 2009 REFERENCE NO.: �*L-14904 LOG NAME: 80SANDY LANE PARK PARK TELECOMMUNICATIONS TOWER REVISED SUBJECT: Authorize an Amendment to the Approved Terms of a License Agreement with T-Mobile West Corporation for the Installation of a Stealth Telecommunications Tower with Support Facilities in Sandy Lane Park Located at 2001 Sandy Lane RECOMMENDATION: It is recommended that the City Council authorize the City Manager to amend the terms of an approved License Agreement with T-Mobile West Corporation for a stealth telecommunications tower with support facilities in Sandy Lane Park adjusting the terms and increasing the contract amount to $418,000.00. DISCUSSION: On September 30, 2008, (M&C L-14651) the City Council authorized the use of approximately 0.0368 acre of parkland at Sandy Lane Park for the installation of a stealth telecommunications tower with support facilities and the execution of a License Agreement with T-Mobile West Corporation in the amount of $365,000.00 to be paid to the City over a 20 year period. T-Mobile West Corporation (T-Mobile) proposed to construct a 100 foot stealth telecommunications mono- pole tower with a 16 foot by 20 foot screened enclosure along with a 5 foot by 256.9 foot utility strip for electrical service. The facility is necessary to fill dead zones within T-Mobiles current service network. Due to a sluggish economy T-Mobile proposed renegotiation of the License Agreement payment terms. The Parks and Community Services Department staff worked with T-Mobile staff and developed a revised schedule to accommodate T-Mobile request while increasing the total License Agreement fee over the 20 year term of the Agreement. The initial terms totaling $365,000.00 were outlined as follows: Current Contract Payment Terms: Payments Amount Lump Sum for the Initial Ten Year Term $150,000.00 Lump Sum for the First Five Year Renewal Term $90,000.00 Lump Sum for the Second Five Year Renewal Term $110,000.00 Donation Received During the First Term $15,000.00 Total $365,000.00 The Amendment allows for the adjustment of the terms and increases the license agreement fee to $53,000.00 for a total of $418,000.00 as follows: II. Proposed Contract Payment Terms: Payment Amount Logname: 80SANDY LANE PARK PARK TELECOMMUNICATIONS TOWER REVISED Page 1 of 2 Lump Sum for Initial Five Year Term $75,000.00 Lump Sum for First Five Year Renewal Term $90,000.00 Lump Sum for Second Five Year Renewal Term $108,000.00 Lump Sum for Third Year Term $130,000.00 Donation Received During the First Term $15,000.00 Total $418,000.00 T-Mobile has increased the proposed license agreement fee in the amount of $53,000.00. If at any time T- Mobile is to conclude its Agreement with the City, then T-Mobile will be required to remove the tower and all ancillary equipment. T-Mobile has agreed to the terms outlined and City staff considers the proposed amendment to be fair and reasonable. The project is located in COUNCIL DISTRICT 5. FISCAL INFORMATION /CERTIFICATION: The Financial Management Services Director certifies that the Parks and Community Services Department is responsible for the collection and deposit of funds due to the City. FUND CENTERS: TO Fund/Account/Centers C280 442010 XXXXXXXX $418,000.00 CERTIFICATIONS: Submitted for City Manager's Office bk Ori ig Hating Department Head: Additional Information Contact: ATTACHMENTS 1. Accounting Info.pdf (CFW Internal) 2. Aerial Sandy Lane Park.pdf (Public) FROM Fund/Account/Centers Charles W. Daniels (6183) Richard Zavala (5704) David Creek (5744) Logname: 80SANDY LANE PARK PARK TELECOMMUNICATIONS TOWER REVISED Page 2 of 2 • ' • • COUNCIL ACTION: ,Approued on 913012008 DATE: Tuesday, September 30, 2008 LOG NAME: 80SANDYPARK REFERENCE NO.: L-14651 SUBJECT: Authorize the Conversion of Approximately .0368 Acres of Parkland at Sandy Lane Park, Located at 2001 Sandy Lane Drive, for the Installation of a Stealth Telecommunications Tower with Support Facilities and �`�,��' Authorize the Execution of a License Agreement with T-Mobile West Company in the Amount of � ' �\ $365,000.00 �� (� t RECOMMENDATION: It is recommended that the City Council: 1. Conduct a public hearing under the guidelines set forth by the Texas Parks and Wildlife Code, Chapter 26, Protection of Public Parks and Recreational Lands; 2. Find that no feasible or prudent alternative exist for the location of the proposed Stealth Telecommunications Tower for Sandy Lane Park; 3. Find that the proposed Stealth Telecommunications Tower with support facilities includes all reasonable planning to minimize harm to the parkland, includes that the Tower will be constructed in Sandy Lane Park as specified on the attached exhibits and noted in the discussion below; 4. Close the public hearing and authorize the City Manager to convert approximately .0368 acres of dedicated parkland for a license agreement fora 90 to a 100 foot tall Stealth Telecommunications Tower; and 5. Authorize the execution of a License Agreement with T-Mobile West Corporation in the amount of $365, 000.00. . Sandy Lane Park is located at 2001 Sandy Lane, Mapsco 80C and D, located north of Meadowbrook Drive, east of Sandy Lane and south of Calmar Court in COUNCIL DISTRICT 5. DISCUSSION: The Parks and Community Services Department (PACSD) has been approached by T-Mobile West Corporation (T-Mobile) to construct a Stealth Telecommunications Tower with a 16 feet x 20 feet screened enclosure along with a 5 feet x 250 feet utility strip for electrical service. The Stealth Telecommunications Tower is needed to fill a void in the current service area for T-Mobile. An existing 70 feet athletic field lighting pole for Sandy Lane Park would be replaced with a 90 feet to a 100 feet steel mono -pole with the lighting reinstalled at the appropriate height. The antenna is to be enclosed in the top 10 feet portion of the pole and is not visible (see attached). The 16 feet x 20 feet enclosure at the bottom of the tower houses support facilities and would be screened and landscaped if so desired. Logname: 80SANDYPARK Page 1 of 2 In consideration of the agreement staff reviewed similar agreements with other cities throughout the Metroplex which have similar installations of telecommunication facilities on parkland; including Dallas, Arlington, Frisco, and other municipalities. Using those agreements as a guide, staff is recommending that T-Mobile be assessed the following fees for this site: City of Fort Worth $ 150000.00 Lump Sum for the Initial Ten Year Term City of Fort Worth $ 90000.00 Lump Sum for the First Five Year Renewal Term City of Fort Worth $ 110000.00 Lump Sum for the Second Five Year Renewal Term City of Fort Worth $15,000.00 Donation Received During the First Term Total for 20 Years $ 365000.00 This equates to approximately $57.03 per square foot per year or $1,140.63 per square foot for the 20 year term for this site. On July 23, 2008, the PACSD Advisory Board endorsed staffs recommendation to the City Council to authorize the conversion of parkland at Sandy Lane Park for the installation of a Stealth Telecommunications Tower with support facilities. Should City Council approve the conversion a license agreement with T-Mobile will be executed including the major terms outlined herein. Signage was posted at the site noting the conversion and providing instructions for directing comments to the Department. The Department also notified the adjoining Neighborhood Association in writing of the requested conversion. FISCAL INFORMATION /CERTIFICATION: The Financial Management Services Director certifies that the Parks and Community Services Department is responsible for the collection and deposit of funds due to the City under this agreement. FUND CENTERS: TO Fund/AccountlCenters FROM Fund/AccountlCenters CXXX 4XXX)CX XXXXXXXX $365,000.00 CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: Charles Daniels (6183) Richard Zavala (5704) Harold Pitchford (5728) ATTACHMENTS 1. Aerial Sandy Lane Park.pdf (Public) 2. layout plan.pdf (Public) 3. site exhibit existing conditions2.doc (Public) 4. Site exhiblit Post Construction View2.doc (Public) Logname: 80SANDYPARK Page 2 of 2