HomeMy WebLinkAboutContract 25512 C11 Y �RETARY
CITY OF FORT WORTH CONTRACT NO
COMMUNICATIONS FACILITY LEASE
(EXISTING CO CATIONS TOWER)
This COMMUNICATIONS FACILITY LEASE ("'Lease") is made and entered into by
and between the CITY OF FORT WORTH ("Landlord"), a home rule municipal corporation
situated in portions of Tarrant and Denton Counties, Texas, acting by and through Charles
Boswell, its duly authorized Assistant City Manager, and COOK INLETNOICESTREAM
PCS, L.L.C. ("Tenant"), a Delaware limited liability company acting by and through
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BTA I Corporation, Inc., a Delaware corporation and Tenant's duly authorized agent.
Recitals
The following statements are true and correct and form the basis of this Lease:
A. Landlord is the owner in fee simple of a parcel of land located in the City of Fort Worth,
Tarrant County, Texas ("Owned Premises"), as shown in Exhibit "A", attached hereto and
hereby made a part of this Lease for all purposes.
B. Landlord ovens a self-supporting tower ("Tower") located on the Owned Premises and
owns and operates certain communications facilities on the Tower.
C. Tenant wishes to lease from Landlord, and Landlord is willing to lease to Tenant, a
portion of the Owned Premises and space on the Tower as described in this Lease in order-V6-
enable Tenant to erect, operate and maintain certain communications equipment of Tenant, on
terms and conditions set forth herein.
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
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which is hereby acknowledged by both Landlord and Tenant, Landlord and Tenant agree as
follows:
1. LEASED PREMISES.
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the following
portions of the Owned Premises:
1.1. Space on the Tower for Tenant's directional or Omni antennae, connecting cables
and related appurtenances ("Antennae Facilities") as depicted on Exhibit "B", attached
hereto and hereby made a part of this Lease for all purposes, and
1.2. Space on the Owned Premises for Tenant's equipment shelter ("Equipment
Shelter"), power and any necessary utilities, as shown on the Site Plan attached hereto as
Exhibit"C" and hereby made a part of this Lease for all purposes.
All portions of the Owned Premises that are leased to Tenant under this Lease shall hereinafter
be referred to as the "Premises".
2, TERM OF LEASE.
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2.1. Initial Term.
Unless terminated earlier as provided in this Lease, the initial term of this Lease
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 Landlord or Tenant exercise a termination right as provided in this Lease
prior to the expiration of the Initial Term, and provided that Landlord, in its sole
discretion, wishes to lease the Premises at the time, Landlord shall give Tenant two (2)
consecutive rights of first opportunity to renew its lease of the Premises, on terms and
conditions and at rental rates prescribed by Landlord at the time, for two (2) additional
consecutive terms of five (5)years each (each a "Renewal Term"). In order to have this
priority, Tenant shall provide Landlord with written notice of its desire to continue to
lease the Premises not less than ninety (90) and not more than one hundred twenty (120)
days prior to the expiration of the term then in effect. If Tenant fails to lease the
Premises in accordance with these procedures for the first Renewal Term following the
Initial Term, or if this Lease is terminated during the first Renewal Term, Tenant shall
simultaneously forgo its right of opportunity to lease the Premises for a second Renewal
Term.
2.3. Holdover.
If Tenant holds over after the expiration of any term of this Lease, this action will
create a month--to-month tenancy. In this event, for the holdover period, Tenant agrees to
pay Landlord one hundred fifty percent (150%) of the rent it was paying to Landlord
during the last month of the previous term of this Lease. Any month-to-month tenancy
shall be subject to all other terms and conditions of this Lease.
3. RENT.
3.1. Rent for Premises.
Tenant shall pay Landlord as annual rent for the Premises the sum of Twelve
Thousand Dollars ($12,000) for the first antenna placed on the Premises and one
Thousand Two Hundred Dollars ($1,200) for each subsequent antenna that Landlord
allows Tenant to place or install on the Premises, subject to the adjustments described in
Section 3.2 and provided that Landlord gives Tenant advance written consent to install
any additional antennae or other facilities on the Premises. If Tenant's Antennae
Facilities consist of an array or interconnection of antennae, Landlord shall determine, in
Landlord's sole discretion and judgment and consistent with Landlord's previous
decisions in similar situations, whether such Antennae Facilities consist of one antenna or
more than one antenna. Nothing in this Lease shall grant Tenant the right to place or
install additional facilities or equipment on the Premises without Landlord's advance
written consent.
3.2. Adjustments to Rent.
Rent hereunder shall increase on October 1st of each year, beginning October 1,
2000, by three percent (3%) over the previous year's rent.
3.3. Due Dates.
The due dates for payment of rent under this Lease are established in accordance
with Landlord's fiscal year, which begins on October 1st of a given year and ends
September 30th of the following year ("Fiscal Period"). Therefore, all annual rent
payments shall be due in full, at the appropriate address for Landlord set forth in Section
24 of this Lease, on or before the October 1 st commencement date of a respective
forthcoming Fiscal Period. Payment of annual rent for the period between the Effective
Date of this Lease and September 30, 2000 is due in full upon the execution of this Lease.
Unless the Effective Date of this Lease is October 1 st of a given year, the rent for the
period between the Effective Date and the immediately following September 30th
expiration of the then-current Fiscal Period shall be prorated in accordance with the
number of days remaining until that September 30th expiration of the then-current Fiscal
Period.
3.4. Late Fees.
If Tenant fails to pay any rent hereunder by the respective due date, Tenant shall
pay Landlord a late payment fee of ten percent (10%) of the annual rental amount
outstanding in addition to the annual rent then due. Moreover, any rent or fees that
Tenant owes Landlord and that are 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 Lease, Tenant shall remit to Landlord a maintenance/damage
deposit ("Deposit"), in cash, equivalent to one-twelfth (1112) of the amount of Tenant's annual
rent. Tenant will not be entitled to any interest on the Deposit. Landlord may draw from the
Deposit to perform maintenance or repairs to the Premises that are necessary because of Tenant's
use of the Premises if Tenant fails to do so within thirty (30) days of written notice from
Landlord. If Landlord terminates this Lease for nonpayment of rent or any other breach or
default as provided hereunder, Tenant understands and agrees that it shall forfeit the entire
Deposit. Otherwise, Landlord will refund to Tenant any unused portion of the Deposit within
thirty(30) days following the date that Tenant lawfully vacates the Premises.
5. USE OF PREMISES.
Tenant may use the Premises, in accordance with the provisions and conditions of this
Lease and goad 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. Tenant 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 Landlord or other tenants as such use exists as
of the date of execution of this agreement. Tenant acknowledges that this Lease does not convey
to Tenant or successors in interest any exclusive rights
6. INSTALLATION OF E UIPMENT CONSTRUCTION AND IMPROVEMENTS.
6.1. In General.
Tenant 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 Landlord provides advance written consent to Tenant. In order
to obtain such consent, Tenant shall submit a written request to Landlord, which shall
include all plans and estimates for the costs of the proposed Improvement, to Landlord's
Director of Information Systems and Services or his or her authorized representative
("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 Tenant intends to employ or engage
a contractor or other third party to perform any work on the proposed Improvement,
Tenant shall supply Landlord with the name of such party and must obtain Landlord's
advance written approval before it authorizes such party to work on the Premises or
Owned Premises.
6.2. Documents.
Tenant shall supply the Director with as-built drawings of the Antennae Facilities
and any other improvements prior to their installation on the Premises. These as-built
drawings shall show the actual locations of all equipment and improvements consistent
with Exhibit "B". Tenant shall also provide Landlord with a complete and detailed
inventory of all Antennae Facilities, equipment and personal property that it intends to
place on the Premises.
6.3. Iguipment U rade.
Tenant may update or replace the Antennae Facilities from time to time with the
prior written approval of Landlord, 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 Landlord has provided advance written consent to any
change in the location of such facilities on the Tower.
6.4. Bonds Re aired of Tenant and Tenant's Contractors.
In the event that Tenant or a contractor of Tenant 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, Tenant and
Tenant'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 Landlord ("Bonds"). Tenant's Bonds shall guarantee (i)
satisfactory completion of the proposed Improvement; (ii) compliance by Tenant with all
requirements, terms and conditions of this Lease during the Improvement project; and
(iii) full payments to all persons, firms, corporations or other entities with whore Tenant
has a direct relationship relating to the Improvement project.
If Tenant 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 Tenant and its contractor in accordance
with the plans and specifications approved by Landlord 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 Landlord and
Tenant as dual obligees. Tenant's contractor shall execute and deliver its Bonds to
Tenant. Tenant shall provide the Director with copies of all Bonds prior to the
commencement of work on the proposed Improvement.
7, UTILITIES.
Tenant, at Tenant's sole cost and expense, shall separately meter and pay for all utilities
used in connection with the Antennae Facilities and Tenant's operations on the Premises.
8. MAINTENANCE AND REPAIRS.
8.1. Paintin of Antennae Facilities by-Tenant.
Tenant, at its sole cost and expense, shall at all times keep its Antennae Facilities
painted as specified in writing by Landlord.
8.2. Maintenance and Reyairs by Tenant.
Tenant, 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 Landlord and that does not conflict
with the use of the Tower by Landlord or other Tenants as such use existed on the date of
execution of this agreement. Tenant 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. Landlord 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 materials, in a good and workmanlike manner, and
in compliance with all applicable laws.
8.3. Inspection,
Landlord may examine the Antennae Facilities and inspect the Premises for any
reason deemed necessary by Landlord, including, but not limited to, purposes of safety
and ensurance that Tenant is in compliance with the conditions and provisions of this
Lease. If Tenant is responsible under this Lease for any maintenance or repairs, Landlord
shall notify Tenant in writing and Tenant 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 Landlord in its sole discretion, Landlord may, at its option, perform
maintenance or repairs that are Tenant's responsibility in order to avert, mitigate or cure
such emergency. In this event, Tenant shall reimburse Landlord for the reasonable cost
of such maintenance or repairs within thirty (30) days of receipt of an invoice from
Landlord that describes the maintenance or repairs Landlord performed on Tenant's
behalf.
8.4. Dama a Caused -b-Tenant.
Tenant, at Tenant'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 Tenant, its officers, agents, employees, contractors, or subcontractors, to
Landlord's reasonable satisfaction as soon as reasonably practicable, provided that
Tenant shall commence within ten (10) calendar days following the date of such damage.
9. ACCESS TO PREMISES.
Tenant shall have access to the Premises by means of any existing driveway over the
Owned Premises twenty-four (24) hours per day, seven (7) days per week; provided, however,
that, except in an emergency, Tenant shall provide Landlord with at least twenty-four (24) hours'
written notice of Tenant's desire for access to the Premises. In addition, except in an emergency,
Tenant shall obtain Landlord's advance written consent at least twenty-four (24) hours before
Tenant allows on the Premises or other portion of the Owned Premises any third party, including
contractors or subcontractors whom Tenant is using or intends to use to install, operate or
maintain the Antennae Facilities and Equipment Shelter or to perform any modification,
renovation, improvement or construction on the Premises.
10. INTERFERENCE.
10.1. Interference with Landlord's Operations Prohibited.
Tenant covenants and agrees that its Antennae Facilities and its operations on the
Premises shall not damage or interfere in any way with Landlord's operations on the
Tower or Owned Premises. Tenant agrees to cease any action on its part which interferes
with Landlord'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 Lease following thirty (30) days' written
notice to the other party; provided, however, that if such interference is material and, in
Landlord's sole and reasonable opinion, poses any threat to the public safety or welfare,
Landlord may terminate this Lease immediately upon provision of written notice to
Tenant. In the event of such termination, Landlord shall refund to Tenant an amount
equal to the rent 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.
Tenant 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 tenant
whose communication facilities on the Tower existed prior to the installation of Tenant's
Antennae Facilities. If Tenant's operations on the Premises cause such interference,
Tenant 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 thirt y (30) calendar days, Tenant shall immediately cease any action on its
part which interferes with the respective tenant's use of the Tower or the Owned
Premises. In such an event, Landlord or Tenant may terminate this Lease upon thirty
(30) a y calendar days' written notice to the other party. In the event of such termination,
Landlord shall refund to Tenant the Refund Amount.
10.3. Interference and EngLneeriag Engineering Studies.
Prior to the approval of the placement of Tenant's Antennae Facilities, or any
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construction modification, improvement or upgrade of such Antennae Facilities,
Landlord ma y obtain at Tenant's sole cost and expense not to exceed Five Thousand
Dollars ($5,000-00), an interference study in order to determine whether Tenant's
intended operations will interfere with any existing communications facilities on the
Tower. Landlord ma y also obtain, at Tenant's sole cost and expense not to exceed Five
Thousand Dollars ($5,000.00), an engineering study in order to determine whether the
Tower is able to support structurally Tenant's Antennae Facilities. Landlord agrees to
provide written notice to Tenant of its intent to obtain any interference or engineering
stud y and the estimated cost of any such study prior to the performance thereof. In no
wa y shall the performance of any interference or engineering study or the results
therefrom in an y way ffect the application of Sections 10.1 and 10.2. Landlord shall
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deliver to Tenant a cop y of any such studies. If such studies indicate interference or
structural issues then Tenant shall have the night to terminate this Lease upon the
provision of written notice to Landlord. In the event of such termination, Landlord shall a
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refund to Tenant the Refund Amount. ��h� c��, Ir ��`r d�s�r►��;�.. � � ,era•� F s
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10.4. Interference with Tenants O erations.
Landlord does not guarantee to Tenant subsequent noninterference with Tenant's
o erations on the Premises. However, following the Effective Date of this Lease, for any
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request Landlord receives from a third party, other than a governmental unit, office or
agency, to leases ace on the Tower and/or Owned Premises, Landlord shall submit to
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Tenant such third party's proposal, complete with all technical specifications real y
requested y
sted in writing b Tenant, for Tenant's review; provided, however, that Landlord
s q hall not be required to provide Tenant with any specifications or information claimed to
be of a proprietary nature by such third party.
Tenant shall have ten (10) calendar days following receipt of such third party's
proposal to make any reasonable objections thereto. If Landlord verifies and agrees with
Tenant's objections, Landlord shall require the third party to modify its operations
proposal in a manner determined, in Landlord's reasonable judgment, to reduce the
interference adequately with respect to Tenant's operations. Tenant's failure to make any
objection within the ten-day time frame provided above shall be deemed as consent by
Tenant to the installation of antennae or transmission facilities pursuant to the third
party's original proposal.
Landlord may allow, at any time a governmental unit, office or agency to lease
space on the Tower for antennae or other communications facilities without regard to
potential or actual interference with Tenant's operations on the Premises; provided,
however, that if the operations of such governmental unit, office or agency actually and
materially interferes with Tenant's operations, Tenant may terminate this Lease upon
thirty (30) calendar days' written notice to Landlord. In the event of such termination,
Landlord shall refund to Tenant the Refund Amount.
11. RIGHTS AND RESERVATIONS OF LANDLORD,
11.1. This Lease is not a franchise or permit for Tenant to use or cross the public rights-
of-way within the City of Fort worth in the operation of its communications business.
Tenant 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 Landlord in writing and obtains all
licenses, permits or franchises required by Landlord of all entities wishing to utilize the
public rights-of-way in the same manner as Tenant.
11.2. Landlord 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. Landlord shall use best efforts to not interfere with the operation of Tenant's
Antennae Facilities in connection therewith. However, if Landlord's action under this
Section 11.2 does result in interference with the operation of Tenant's Antennae Facilities
for thirty (30) continuous days, Tenant shall have the right to terminate this Lease upon
written notice to Landlord. In the event of such termination, Landlord shall refund to
Tenant the Refund Amount.
11.3. Landlord reserves the right to lease other portions of the Tower or the owned
Premises to third parties.
11.4. Landlord reserves the right to require Tenant to relocate Antennae Facilities on
the Tower to another location on the Tower in the event Landlord desires to lease such
space on the Tower to a third party which is a governmental unit, office or agency. In
such an event, Landlord shall require the third party lessee to reimburse Tenant's actual
costs of relocation, and Tenant shall complete the relocation of its facilities within thirty
(30) calendar days following receipt of written notice from Landlord.
11.5. During any war or national emergency, Landlord shall have the right to lease 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 to the Government shall be suspended. Landlord shall not be
liable for any loss or damages alleged by Tenant as a result of this action. However,
nothing in this Lease shall prevent Tenant from pursuing any rights it may have for
reimbursement from the United States Government.
12. INSURANCE.
Tenant 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 Landlord as an additional insured
and covering all public risks related to the leasing, use, occupancy, maintenance, existence or
location of the Premises and Tenant's business operations thereon:
12.1. Prima Liabi 0!Lq Insurance Coverage
• Commercial General Liability:
$10,000,000 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;
• Automobile Liability:
$2,000,000 per accident,
including, but not limited to, all vehicles, whether owned or hired, in use by
Tenant, its employees and agents;
■ Worker's Com ensation/Em to er's Liabili
Worker's compensation coverage as required by law; and Employer's Liability
at $100,000 per accident.
12.2. Excess Liabilit y Insurance Umbrella.
Coverage amounts set forth in Section 12.1,, other than worker's compensation,
may be met by a combination of underlying and umbrella policies provided the combined
limits meet or exceed the limits required by this Lease.
12.3. Property Insurance.
Prior to the installation of the Antennae Facilities and related equipment described
in Exhibits "B" and "C", and prior to the commencement of any modification, renovation
improvement or new construction, Tenant 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, Tenant 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.
12.4. Insurance Re uired of Tenant's Contractors.
Tenant 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 Landlord. Prior to the commencement of work on the
Premises by any contractor used by Tenant, Tenant shall deliver to Landlord a certificate
of insurance evidencing the insurance coverage for such contractor.
12.5. General Re, uirements.
12.5.1. Landlord, in Landlord's sole and reasonable discretion, reserves the right
to revise insurance coverage requirements and limits at any time.
Tenant agrees that within thirty (30) days following receipt of written
notice from Landlord, Tenant will implement all revisions reasonably
requested by Landlord.
12.5.2. Tenant's policy or policies of insurance shall be endorsed to cover all of
Tenant'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
(3 0) days' prior written notice to Landlord.
12.5.3. Tenant shall maintain its insurance with underwriters authorized to do
business in the State of Texas and who are reasonably acceptable to
Landlord in terms of solvency and financial strength. Tenant shall
furnish Landlord 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, Tenant shall, on
demand, provide Landlord with evidence that it has maintained such
coverage in full force and effect.
12.5.4. 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 Landlord in writing.
12.5.5. All insurance policies other than those for worker's compensation shall
be written on an occurrence basis and not a claims made basis.
12.5.6. Nothing in this section shall be construed to limit or in any way affect
Tenant's operation as an independent contractor as provided in Section
13 or Tenant's liability obligation to indemnify Landlord as provided in
Section 14.
13, INDEPENDENT CONTRALTO&
It is expressly understood and agreed that Tenant shall operate as an independent
contractor as to all rights and privileges granted herein, and not as an agent, representative or
employee of Landlord. Tenant 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. Tenant acknowledges that the doctrine of respondend .superior shall not apply as
between Landlord and Tenant, its officers, agents, employees, contractors and subcontractors.
Tenant further agrees that nothing herein shall be construed as the creation of a partnership or
joint enterprise between Landlord and Tenant.
14. INDEMNIFICATION.
TENANT HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR
PROPERTY LOSS, PROPERTY DAMAGE.AND/OR PERSONAL INJURY OF ANY FIND,
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 LEASE OR "TH THE LEASING,
MAINTENANCE, USE OR OCCUPANCY OF THE PREMISES, EXCEPT TO THE
EXTENT CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF
LANDLORD, ITS E1IPL OYEES,A CENTS, OR CONTRA CTORS.
TENANT COTENANTS AND AGREES TO, AND DOES .HEREBY, INDEMNIFY,
HOLD HARMLESS AND DEFEND LANDLORD, ITS OFFICERS AGENTS, SER1NI'S
AND EMPLOYEES, FROMAND AGAINST ANY ANO ALL CLAIMS OR LA WSUITS FOR
EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS
TO TENANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR
PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY
FIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH TENANT'S USE, LEASING, MAINTENANCE OR OCCUPANCY,
OF THE PRE MISES, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF LANDLORD, ITS E APL OYEES, AGENTS, OR
CONTRACTORS.
TENANT ASSUMES ALL RESPONSIBILITY AND AGREES TO PAY LANDLORD
FOR ANY AND ALL INJURY OR DAM
A GE TO THE OWNED PREMISES, INCLUDING
THE TOWER AND OTHER PORTIONS OF THE PREMISES, WHICH ARISES OUT OF
OR IN CONNECTION 971H ANY AND ALL A CTS OR OMISSIONS OF TENANT, ITS
OFFICERS, AG'ENT'S, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS OR
LICENSEES, EXCEPT TO THE EXTENT CA USED BY THE �' NEGLIGENCE OR
INTENTIONAL MISCONDUCT UCT Off` LANDL O D, ITS EMPLOYEES, AGENTS, OR
CONTRACTORS.
CT ORS.
15, TERMINATION.
In addition to termination rights contained elsewhere in this Lease, this Lease may be
terminated as follows:
15.1, B Either Pa
Landlord or Tenant may terminate this Lease 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.
15.2. Failure by Tenant to Pay Rent Fees or Other Charges.
If Tenant fails to pay any rent, fees or other charges due under this Lease,
Landlord shall deliver to Tenant a written invoice and notice to pay the invoice within ten
(10) calendar days. If Tenant fails to pay the balance outstanding within such time,
Landlord shall have the right to terminate this Lease immediately.
15.3. Safely-Issues.
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If Landlord determines, in its sole and reasonable discretion, that the Tower is
structurally unsound or otherwise not structurally suitable for Tenant'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 Landlord determines, in its sole and reasonable
discretion, that Tenant's continued use of the Tower constitutes a threat to the public
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health, safety or welfare, Landlord may terminate this Lease immediately upon written
notice to Tenant 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 Lease shall
constitute a trial period ("Trial Period") during which Tenant may test the Antennae
Facilities to ensure that their location on the Towers is suitable for Tenant's business
purposes. If Tenant encounters any kind of technical difficulties with its Antennae
Facilities during the Trial Period, Tenant may terminate this Lease at any time during the
Trial Period by providing written notice to Landlord. In the event of such termination,
Landlord shall refund to Tenant the Refund Amount.
15.5. Rights of Landlord Upon Termination or-Expiration of Lease.
Upon termination or expiration of this Lease, all rights, powers and privileges
granted to Tenant hereunder shall cease. However, Tenant shall remain liable to
Landlord for all arrearages of rentals, fees and charges payable hereunder and for any
obligations that arose prior to the effective date of termination or expiration but that
Tenant did not complete or perform. In addition, Tenant agrees that it will return the
Premises in the same condition as existed at the time this Lease was entered into and all
appurtenances and improvements thereon in goad order and repair, subject to ordinary
wear and tear. Tenant, at its sole cost and expense, shall remove from the Premises all
Antennae Facilities, equipment and personal property placed on the Premises by Tenant
pursuant to this Lease and shall restore the affected area of the Premises to Landlord'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 Lease.
After such time, Landlord shall have the right to take full possession of the Premises, by
force if necessary, and to remove any and all parties and property remaining on any part
of the Premises. Landlord shall also have the right to take full title to any such Antennae
Facilities, equipment or personal property remaining on the Premises. Tenant agrees that
it will assert no claim of any kind against Landlord, its agents, servants, employees or
representatives which may stem from Landlord's lawful termination of this Lease or, in
accordance with its terms, any act incident to Landlord's assertion of its rights under this
Lease.
16. CONDEMNATION.
In the event that the Tower is taken by eminent domain, this Lease 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 Lease as of the date title
vests in the condemning authority by giving the other party thirty (3 0) days' prior written notice.
If the Tower or any other portion of the Premises are taken by eminent domain, Landlord 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 the leasehold or to the fee of the
Premises. Tenant 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 AND SUBLETTING.
17.1 Assignment.
Tenant may assign this Lease to any person or entity controlling, controlled by or
under common control with Tenant or to any person or entity that, after first receiving the
necessary FCC licenses, acquires Tenant's radio communications business or assets,
provided that (i) Tenant gives Landlord written notice of such an assignment and (ii) the
assignee enters into a written agreement with Landlord, signed by both the assignee and
Landlord, in ,which the assignee covenants and agrees to comply with all provisions and
conditions of this Lease and to be bound fully by this Lease the same as if it had
originally executed this Lease.
17.2. Subletting or other Conveyance.
In the event that Tenant requests Landlord's approval to sublease any portion of or
all of the Premises to another party, Tenant shall submit to Landlord a copy of the
proposed sublease regarding this matter between Tenant and the subleasee. Tenant
agrees that Landlord may refuse to approve a proposed sublease if Landlord has
substantially similar space on the Premises that is not leased at the time. If Landlord
approves a sublease where the rentals, fees and charges for the subleased premises exceed
the rentals, fees and charges payable by Tenant under the terms of this Lease, Tenant
shall pay Landlord such excess amount of the rentals, fees and charges; provided,
however, that Tenant may deduct its actual administrative costs and expenses in matters
therewith, which shall in no event exceed fifteen percent (15%) of the specified sublease
rental. Landlord's consent to one sublease shall not be deemed to be a consent by
Landlord to any subsequent sublease proposal. In addition, as a condition precedent to
the effectiveness of Landlord's consent to such a sublease, the sublessee shall enter into a
,written agreement with Landlord in which the sublessee covenants and agrees to comply
with all provisions and conditions of this Lease and to be bound fully by this Lease the
same as if it had originally executed this Lease. Nothing hereunder shall relieve Tenant
of Tenant's obligations under this Lease, including, but not limited to, payment of rentals,
fees and charges.
18. LIENS BY TENANT.
Tenant 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 Landlord. If any such purported lien is created or filed, Tenant, at its sole cost and expense,
shall liquidate and discharge the same within thirty (30) days of such creation or filing. Tenant's
failure to discharge any such purported lien shall constitute a breach of this Lease and Landlord
may terminate this Lease immediately. However, Tenant's financial obligation to Landlord to
liquidate and discharge such lien shall continue in effect following termination of this Lease and
until such a time as the lien is discharged.
19. TAXES AND ASSESSMENTS.
Tenant agrees to pay any and all federal, state or local taxes or assessments which may
lawfully be levied against Tenant, including, but not limited to, those assessed due to (i)
Tenant's occupancy of the Premises; (ii) Tenant's use of the Premises; or (iii) any improvements
or property placed on the Premises by Tenant.
20. COMPLIANCE WITH LAWS ORDINANCES,-RULES AND REGULATIONS.
Tenant agrees to comply with all federal, state and local laws, and all ordinances, rules
and reasonable regulations of Landlord with respect to the use of the Premises and the operation
of the Antennae Facilities. If Landlord notifies Tenant of any violation of such laws, ordinances,
rules or regulations, Tenant shall immediately desist from and correct the violation. Tenant
covenants and agrees that it shall not engage in any unlawful use of the Premises. Tenant 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 Tenant shall
constitute a breach of this Lease and grounds for immediate termination by the City.
21. NON-DISCRIMINATION COVENANT.
Tenant, 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 Tenant's use of the Premises on the basis
of race, color, national origin, religion, handicap, sex, sexual orientation or familial status.
Tenant 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 Tenant, its personal representatives, successors
in interest or assigns, Tenant agrees to indemnify Landlord and hold Landlord harmless.
22. LICENSES AND PERMITS.
Tenant 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,
. . . p
any necessary utilities and other business concerns on the Premises. Subject to Landlord's
reasonable attorney and administrative fees, Landlord shall cooperate reasonably with Tenant in
Tenant's efforts to obtain any federal, state or local licenses and permits required or substantially
y
required by Tenant's use of the Premises.
23. NOTICES.
Notices required pursuant to the provisions of this Lease shall be conclusively determined
to have been delivered when (1) hand-delivered to the other party, its agents, employees,
� s
servants or representatives, (2) delivered by facsimile with electronic confirmation of the
transmission, provided a copy of same is also sent by United States Mail or (3) received by the
other party by United States Mail, registered, return receipt requested, addressed as follows:
To LANDLORD:
For Rent, Fees and Other Charges: For All other Matters:
City of Fort worth City of Fort worth
Revenue Office Attn: Director ISS Dept.
1 000 Throckmorton 1 000 Throckmorton
Fort worth TX 75102 Fort worth TX 76102
Facsimile: (817) 871-8551
To TENANT: With a copy___t o:
Cook T n l e t/V o i c e�ct.ream._..,.P CSo _L L C
c/o PCS BT_A I Corporation
3560-131st Avenue SE, Suite 200 LEASE ADM ! #STRAT�3R
Bellevue, WA 98006 VD#CESTREAM WIRELESS.
8777 N. STEMMONS FRWY.
Facsimile: .(_4.25.1...65 6- 53-5n,50 ' III, SUITE 204
DALLAS, TX 75247
24. ACCEPTANCE OF PREMISES.
Tenant 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 Landlord concerning
the condition of the Premises or Owned Premises. Tenant hereby accepts the Premises in the
condition existing as of the Effective Date of this Lease.
25. GOVERNMENTAL.POWERS.
It i's understood and agreed that by execution of this Lease, Landlord does not waive or
surrender any of its governmental powers.
260 NO WAIVER.
The failure of Landlord or Tenant to insist upon the performance of any term or provision
of this Lease or to exercise any right granted herein shall not constitute a waiver of Landlord's or
Tenant'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 Lease or by Tenant'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 Lease 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 Lease and either party
should retain attorneys or incur other expenses for the collection of rent, fees or 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. SEVERABMITY,
If any provision of this Lease 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.
30. FORCE MAJEURE.
Landlord and Tenant shall exercise their best efforts to meet their respective duties and
obligations as set forth in this Lease, but shall not be held liable for any delay or omission in
performance due to force maj eure or other causes beyond their reasonable control, including, but
not limited to, compliance with any government lain, ordinance or regulation, acts of 'rod, 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. READINGS NOT CONTROLLING,
n i. �r�rr i ir..inm --n..nnnm
Headings and titles used in this Lease are for reference purposes only and shall not be
deemed a part of this Lease.
32. ENTIRETY OF AGREEMENT.
This Lease, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between
Landlord and Tenant, 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 Lease. This Lease shall not be amended unless
agreed to in writing by both parties and approved by Landlord's City Council.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in multiples this
day of - -- ,�-
CITY OF FORT WORTH: COOK INLET/VOICESTREAM PCS, L.L.C.,
a Delaware limited liability company
By: VoiceStream PCS BTA I Corporation, Inc.,
a Delaware ra i
BY � - By:
Charles Boswell Name 0%riqs KlAckbrov%+
Assistant City Manager Title
ATTEST: ATTEST:
JIB
dity Secretary
APPROVED AS TO FORM AND LEGALITY:
W�c
Assistan ity Attorney
M& C: Aq I-C
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 appeare C i-s A%"0 66k 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
C. L X..C and that s/he executed the same
as the act of
srtt-R-11�o-ULC.for the purposes and consideration therein expressed and in
the capacity therein stated.
199 °1 GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of
?S1t1f►■
TERESAL.ANDERSON
O�d••• •fib�/.
`= gc° t�.lotaiy PtibliC,State of Texas
+�1 My Commission Expires 05-11-41
of Public in and for the State of Texas
'r FCF y
....�.,
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 Charles Boswell, known to me to be the person whose name
. p e �s
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.
199 . UNDER NDER MY HAND AND SEAL OF OFFICE this day da f
�
ROSELLA BARNES
-*, NOTARY PUBLIC A�
t�° State of Texas otary Public in and for the State of Texas
�°'F��� Comm. Ex p. 0
P 3-31-2001
SCHEDULE OF EXHIBITS
COMMUNICATIONS FACILITY LEASE
(E)aSTING COMMUNICATIONS TOWER)
between
THE CITY OF FORT WORTH
and
EXHIBIT DESCRIPTION
A Description of Owned Premises
B Tenant's Antennae Facilities
C Site Plan
CITY of FORT WORTH
COMMUNICATIONS FACILITY LEASE
(EXISTING COMMUNICATIONS TOWER)
EXHIBIT
Owned premises are located at the city of Fort Worth Southside Service center, 4100 Columbus
Trail, Fort Worth, Texas. A more complete description of the owned premises are to be substituted
later.
City of Tort Worth., Texas
r r ���
•
or a ounce 1
DATE REFERENCE NUMBER LOG NAME PAGE
'12/14199 **L=12680 04TOWER I 1 of l
SUBJECT LEASE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND COOK
INLETNOICESTREAM PCS, L.L.C. FOR SPACE ON CITY COMMUNICATIONS
TOWER, SOUTH SIDE SERVICE SITE
-REQMMENDATION:
It is recommended that the City Council authorize the City Manager to execute a lease agreement with
Cook Inlet/VoiceStream PCS, L.L.C. ("VoiceStream") for the use of a City communications tower, South
Side Service site in order for Voice Stream to install an antenna and various communications
equipment.
QISQUS
In the spirit of public enterprise, a lease has been negotiated with VoiceStream to install
communications equipment at the South Side Service Tower. This tower is an existing structure owned
and maintained by the City. Any modifications required to the tower will be at the sole expense of
VoiceStream. The City will not bear any costs in providing this lease space to VoiceStream. The lease
will be for five years, commencing on the date of its execution. VoiceStream will have the option to
renew the lease for two additional consecutive terms of five years each. The annual payments made
by VoiceStream under this lease agreement will be $'12,000 for the first antenna and $'1,200 for each
additional antenna, should VoiceStream elect to install additional antennas. Rent will be increased by
three percent over the previous year's rent each October 1.
The revenue generated from this lease will be deposited into the Information Systems Fund and will be
used to operate the Information Systems and Services Department.
Els9CAL IN RMATI NICERTIFICAT N:
The Revenue Office of the Finance Department will be responsible for the collection and deposit of
revenue from this contract.
CB:k
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
PE68 44201 004700 $12,000. 0
Charles Boswell 8511 APPROVED
Originating Department Head: CITY C
Michael DiPaolo 8450 (from) E 14 1999
Additional Information Contact:
Michael DiPaolo 8450 �i Fort i, the
a3
City a F ,