HomeMy WebLinkAboutContract 43134LICENSE AGREEMENT
Licensor Contract No:
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
CITY SECRETARY X131
This LICENSE AGREEMENT ( "Agreement ") entered into as of the latter signature date hereof ( "Effective Date ")
( "Effective Date ") by and between American Tower Asset Sub, LLC, a Delaware limited liability company, with a place of
business at 10 Presidential Way, Woburn, MA 01801 ( "Licensor') and City of Fort Worth, a Texas municipality, with a place
of business at 1000 Throckmorton St, Fort Worth , TX 76102 ( "Licensee "). Licensee and Licensor are collectively referred to
as the "Parties."
I. TOWER FACILITY INFORMATION:
Site Name: Westland TX 6
Site Number: 310091
Address and /or location of Tower Site (as defined in Section 1(e) herein): 1021 Chapin Rd., Aledo, TX 76008 -3004
Tower Site Coordinates: Lat. 32 -43 -53.78 N Long. 97 -30 -25.87 W
II. NOTICE & EMERGENCY CONTACTS:
• Licensee's local emergency contact (name and number): Alan Girton 817 - 392 -8484.
• Licensor's local emergency contact: Network Operations Communications Center (800) 830 -3365.
• Notices to Licensee shall be sent to the address above to the attention of Susan Alanis, Assistant City Manager.
• Notices to Licensor shall be sent to the address above to the attention of Contracts Manager.
• Licensor's Remittance Address: American Tower Corporation, Lockbox 7501, P.O. Box 7247, Philadelphia, PA 19170-
7501; all payments shall include a reference to the Site Name and Site Number as identified above in Section I.
III. PERMITTED USE OF TOWER FACILITY BY LICENSEE:
Transmitting and Receiving frequencies: See Exhibit A for specific frequencies
Antenna mount height on tower: See Exhibit A for specific location
All other permitted uses of the Tower Facility including Licensee's Approved Equipment, and the Licensed Space are further
described in section 4 of this Agreement and Exhibits A and B attached hereto.
IV. FEES & TERM
Monthly License Fee: Three Thousand Five Hundred and 00/100 Dollars ($3,500.00), increased by the Annual Escalator on
the first anniversary of the Commencement Date of this Agreement and each anniversary of the Commencement Date
thereafter during the Term (as defined in Appendix 1). The Annual Escalator is an amount equal to four percent (4 %).
Application Fee: N/A
Relocation Application Fee: N/A
Site Inspection Fee: $1,000.00, increased annually on each anniversary of the Commencement Date of this Agreement by a
percentage rate increase equal to the Annual Escalator.
Initial Term: A period of 1 year beginning on the Commencement Date. The "Commencement Date" shall be the earlier of:
(i) the date of Licensor's issuance of a NTP or (ii) June 1, 2012.
Renewal Terms: 14 additional periods of 1 year each.
Connection Fee (as described in section 5(b)): N/A
Electricity for operation of Approved Equipment is to be provided by (check one):
❑ Licensor, with the cost of such electricity to be paid by Licensee at the initial rate of $ per month ( "Utility Fee ")
subject adjustment pursuant to Section 5(b), OR
® Licensee, at its sole expense.
V. TERMS & CONDITIONS OFFICIAL RECORD
The attached terms and conditions are incorporated herein by this reference. CITY SECRETARY
VI. OTHER PROVISIONS: FT. WORTH, TX
Other provisions: (check one): ❑ None ® As listed below
A. Notwithstanding anything to the contrary in this Agreement, the offer expressed to Licensee in this Agreement shall
automatically become null and void with no further obligation by either party hereto if a structural analysis of the
Tower Facility completed after the execution of this Agreement by Licensor but before the commencement of the
installation of Licensee's Approved Equipment indicates that the Tower Facility is not suitable for Licensee's
Approved Equipment unless Licensor and Licensee mutually agree that structural modifications or repairs shall be
made to the Tower Facility on mutually agreeable terms
U4-1 9 -12 A. 9:45 IN
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
B. In no event shall Licensee's use of the Tower Facility, or operation of any of its equipment thereon, be conducted in
a manner that interferes with Licensor's lighting system located on any of the towers, building systems, or, in the
event that Licensee's equipment is installed on the rooftop of a building, with equipment of any kind used by
building tenants who are not tenants of the Licensor. In the event that such interference does occur, Licensee shall
be solely responsible to reimburse Licensor for any and all costs required to modify and /or upgrade Licensor's
lighting system, to comply with all necessary FAA/FCC regulations, as a result of said interference.
C. In the event that Licensor determines a Shared Site Interference Study is required, Licensor and Licensee agree
and acknowledge that this Agreement shall be contingent upon a satisfactory result of said Shared Site Interference
Study.
D. Both Parties agree that Attachment A to Appendix II is hereby incorporated into this Agreement. In the event there
is an inconsistency between the terms of the Agreement and the terms set forth in Attachment A to the Appendix II,
the Attachment A to the Appendix II shall control. Licensor and Licensee agree and acknowledge that, in
consideration of Licensor's acceptance of Attachment A to Appendix II, Licensee shall not climb the tower for any
reason whatsoever, and Licensee's maintenance of Licensee's Equipment shall be limited to equipment located on
the ground or in Licensee's shelter, if any. Licensor and Licensee further agree and acknowledge that any and all
contractor /subcontractors engaged by, or on behalf of Licensee, in accordance with Section 10 herein, shall not be
permitted to perform any work, maintenance, and /or repairs to Licensee's Equipment located on the
communications tower absent proof of maintaining insurance limits meeting those set forth in Appendix II attached
hereto.
[Signatures appear on next page]
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
IN WITNESS WHEREOF, each Party in consideration of the mutual covenants contained herein, and for other good and
valuable consideration, intending to be legally bound, has caused this Agreement to be executed by its duly authorized
representative as of the date and year written below; provided, however, that this Agreement shall not become effective as to
either Party until executed by both Parties.
LICENSOR
American Tower Asset Sub, LLC
a Delaware limited liabilit company
By:
Print Nam : Rich d Rossi
Its: Vice resident, Contract Management
Date: J- /-lr2-
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LICENSEE
City of Fort Worth, a Texas municipality
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By:
Its:
Date:
kppRo�rjiD AS ,i.() FORM AND LEGALITY:
Assistant Cit tt,oalcy
Contract AuthoriYatiO&
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
TERMS AND CONDITIONS
1. DEFINITIONS. Capitalized terms defined in the body of this Agreement are indexed by location on Appendix I attached
hereto. Capitalized terms used in Agreement but not defined herein are defined in Appendix 1.
GRANT OF LICENSE. Subject to the terms of this Agreement, Licensor hereby grants Licensee a non - exclusive
license to install, maintain and operate the Approved Equipment at the Licensed Space. All Approved Equipment shall
be and remain Licensee's personal property throughout the Term of this Agreement. Licensor shall maintain the Tower
Facility in good order and repair, wear and tear, damage by fire, the elements or other casualty excepted. In no event
shall Licensee's license as granted herein include rights to use the air space above the Approved Equipment, and
Licensor reserves the right to install, construct and /or operate additional improvements or equipment of Licensor or
others above Licensee's Approved Equipment, including Licensee's shelter (commonly referred to as "stacking "),
provided that such additional improvements or equipment do not materially and adversely interfere with the access to or
operation of the Approved Equipment, including Licensee's shelter. Licensee is not required to utilize a stackable
shelter, provided that, if Licensee opts to install a shelter that is not stackable and if Licensor receives an offer to license
the air space above Licensee's non - stackable shelter by a proposed subsequent user, Licensor may, at its election,
upon 30 days prior written notice require Licensee to replace such non - stackable shelter with a stackable shelter of a
comparable size, provided that the proposed subsequent user agrees in writing to be wholly responsible for the cost of
Licensee's shelter replacement. Subject to any limitations contained in the Ground Lease, Licensor grants Licensee a
right of access to the Tower Facility 24 hours per day, 7 days per week during the Term. Licensor grants Licensee a
designated location for the installation of Licensee's utilities over, under or across the Tower Facility (collectively,
"Easement "). Licensee shall be responsible for any and all Damage or loss that results from the installation of any cables
or utility wires by Licensee or any company or person retained by Licensee (including a public utility company), including,
without limitation, any damage or loss that results from the accidental cutting of utility wires or cables of any other party
operating at the Tower Facility. Licensor shall provide Licensee with one set of keys and /or codes to access the Tower
Facility. Licensee shall be responsible for ensuring that Licensor has, at all times, a complete and accurate written list of
all employees and agents of Licensee who have been provided the keys or access codes to the Tower Facility. Licensor
shall have the right to continue to occupy the Tower Facility and to grant rights to others to the Tower Facility, in its sole
discretion. Licensee shall have no property rights or interest in the Tower Facility or the Easement by virtue of this
Agreement. If Licensor's right to license space on the Tower Facility to Licensee is subject to a right of first refusal for
the benefit of a third party and if such third party exercises its right of first refusal prior to the Commencement Date,
Licensor may terminate this Agreement upon written notice to Licensee.
3. EXHIBITS. Within 45 days following the commencement of the installation of the Approved Equipment, Licensee shall
provide Licensor with as -built or construction drawings showing the Approved Equipment as installed [in both hard copy
and electronic form] ( "Construction Drawings "); such Construction Drawings shall include the location of any shelters,
cabinets, grounding rings, cables, and utility lines associated with Licensee's use of the Tower Facility. Upon receipt,
Licensor shall attach hereto the Construction Drawings as Exhibit C hereto. In the event that Licensee fails to deliver the
Construction Drawings as required by this section, Licensor may cause such Construction Drawings to be prepared on
behalf of Licensee and Licensor shall assess a fee for such Construction Drawings in an amount equal to 120% of the
actual cost of obtaining the Construction Drawings including in -house labor, which upon invoicing shall become
immediately due and payable by Licensee. In the event of inconsistency or discrepancy between (a) Exhibit A and
Exhibit B hereto, Exhibit A shall govern, and (b) between Exhibit A (with respect to Approved Equipment and antenna
locations) together with Exhibit B (with respect to Ground Space installation locations) and Exhibit C hereto, Exhibits A
and B shall govern, notwithstanding any approval or signature by Licensor or its agents. Licensee hereby
acknowledges and agrees that installation of the Approved Equipment must be in strict accordance with the approved
Construction Drawings and Exhibit A and B. Notwithstanding the forgoing, Licensee shall not infer nor shall acceptance
of the Construction Drawings by Licensor be deemed to be a representation by Licensor that (i) such Construction
Drawings or the plans and specifications described therein are in compliance with federal, state or local laws,
ordinances, rules or regulations, (ii) that such installation shall not cause impermissible or unlawful interference, or (iii)
that such installation is consistent with Licensee's permitted installation as specifically set forth in Exhibits A and B
hereto.
4. USE. Subject to the terms of the Ground Lease, Licensee shall be permitted the non - exclusive right to install, maintain,
operate, service, modify and /or replace its Approved Equipment at the Licensed Space, which Approved Equipment
shall be utilized for the transmission and reception of wireless voice and data communications signals (such
transmission and reception to be solely within the Permitted Frequencies, and, if the Permitted Frequencies include
licensed spectrum, within the spectrum licensed to Licensee by the FCC). If as of the Effective Date, Licensee's
wireless business consists of a one -way network which requires only that signals be transmitted from the Tower Facility,
then notwithstanding the foregoing sentence, Licensee's use of Tower Facility under this Agreement shall be limited to
the transmission of wireless voice and data communications signals Licensee's permitted use with respect to the
Licensed Space shall be limited solely to that enumerated in this section, and, except pursuant to separate agreement
with Licensor. no person or entity other than Licensee shall have the right to install, maintain or operate its equipment or
transmit or receive communications at, or otherwise use, the Licensed Space
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
LICENSE FEES; TAXES; ASSESSMENTS.
(a) Monthly License Fee. The Monthly License Fee as adjusted by the Annual Escalator, shall be payable in advance
on the first day of each calendar month during the Term beginning upon the Commencement Date. If the
Commencement Date is not the first day of a calendar month, the Monthly License Fee for any partial month shall
be prorated on a daily basis.
(b) Utilities.
All utility services installed on the Tower Facility for the use or benefit of Licensee shall be made at the sole cost
and expense of Licensee and shall be separately metered from Licensor's utilities. Licensee shall be solely
responsible for extending utilities to the Tower Facility as necessary for the operation of the Approved Equipment
and for the payment of utility charges including connection charges and security deposits incurred by Licensee.
Licensee shall obtain and pay the cost of telephone connections, the installation of which shall be in compliance
with the procedures for installation and maintenance of Approved Equipment set forth herein.
(c) Taxes.
(i) Property Taxes. Licensee shall be responsible for the reporting and payment when due of any
applicable tax directly related to Licensee's ownership or operation of the Approved Equipment and such reporting
and payment shall be made directly to the appropriate tax authorities. Licensee shall reimburse Licensor in full for
any taxes assessed against Licensor but attributed to the Approved Equipment within 30 days of Licensor's request
for such reimbursement, if such taxes apply to Licensee. Licensor shall pay all property taxes directly assessed
against Licensor's property or for which Licensor is obligated to pay under the Ground Lease, provided, however, to
the extent permitted by law, Licensee shall reimburse Licensee's pro rata share of such taxes. Licensee's pro rata
share shall be determined by dividing such taxes evenly among all users Licensor has permitted to utilize any
portion of the Tower Facility. Licensee shall reimburse Licensor for such taxes within 30 days of Licensor's request
for such reimbursement. If Licensee claims exemption from any taxes under this section c(i), Licensee shall timely
provide Licensor with all proper documentation to assist Licensor in Licensor's determination of whether such
exemption does apply.
(ii) Sales; Use and Other Taxes. If applicable, Licensor shall be responsible for billing, collecting,
reporting, and remitting sales, use and other taxes directly related to any License Fee or other payments received
pursuant to this Agreement. If applicable, Licensee shall be responsible for reimbursing Licensor for all such sales,
use and other taxes billed related to any payments received pursuant to this Agreement. Licensor shall add to the
License Fee or any other payment then due and payable any associated sales, use or other tax, which shall be paid
by Licensee at the same time and in the same manner as License Fee or other payment due and payable under
this Agreement.
(d) Federal Use Fees & Assessments. In the event that a particular Licensed Space is at a Tower Facility located on
property which is owned by the Bureau of Land Management ( "BLV) or the United States Forest Service ( "USFS"),
Licensee shall reimburse Licensor for any and all fees or assessments attributable to this Agreement or Licensee's use of
the Licensed Space paid by Licensor to the BLM or USFS related to such Tower Facility within 30 days of Licensor's request
for such reimbursement.
(e) Payment Address. All payments due under this Agreement shall be made to Licensor at Licensor's Remittance
Address shown on page 1 of this Agreement or such other address as Licensor may notify Licensee of in writing.
(f) No Set -Off. All payments due under this Agreement shall be due without set -off, notice, counterclaim or demand
from Licensor to Licensee.
(g) Effect of Partial Payment. No endorsement or statement on any check or letter accompanying a check for
payment of any monies due and payable under the terms of this Agreement shall be deemed an accord and
satisfaction, and Licensor may accept such check or payment without prejudice to its right to recover the balance of
such monies or to pursue any other remedy provided by law or in this Agreement.
(h) Restrictions on Reimbursement. Solely for the purposes of determining Licensee's portion of such taxes, fees,
assessments or similar expenses as contemplated in this Section 5 or anywhere else in this Agreement, if any such
amounts are determined in whole or in part on the income or profits (aside from gross revenues) of any person or
entity, Licensor and Licensee shall agree on a fixed amount (subject to the Annual Escalator, which shall be applied
in the same manner as it is applied to the License Fee), that shall be treated as such tax, fee, assessment or similar
expense in lieu of the actual amount, which agreed to amount shall be set forth in an amendment to this
Agreement
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
6. TERM
(a) Initial Term. The Initial Term of this Agreement shall be as specified on page 1
(b) Renewal Term. The Term of this Agreement may be extended for each of the Renewal Terms as specified on page
1 of this Agreement, provided that at the time of each such renewal, (i) the Ground Lease remains in effect and has
not expired or been terminated, (ii) Licensee is not in default hereunder and no condition exists which if left uncured
would with the passage of time or the giving of notice result in a default by Licensee hereunder and (iii) the original
Licensee identified on page 1 of this Agreement has not assigned, sublicensed, subleased or otherwise transferred
any of its rights hereunder except to a Permitted Affiliate (as defined in section 19 herein). Provided that the
foregoing conditions are satisfied, this Agreement shall automatically renew for each successive Renewal Term
unless either Party notifies the other in writing of its intention not to renew this Agreement at least 180 days prior to
the end of the then existing Term.
(c) Holdover Term. If Licensee fails to remove the Approved Equipment at the expiration of the Term, such failure shall
be deemed to extend the terms of this Agreement on a month -to -month basis under the same terms and conditions
herein except that (i) a Monthly License Fee shall be due on or before the first day of every calendar month during
such month -to -month term in an amount equal to 150% of the Monthly License Fee in effect for the last month of the
Term ( "Holdover Fee "), such Holdover Fee to escalate annually on the anniversary of the Commencement Date by
an amount equal to 6% of the Holdover Fee in effect for the month immediately prior to the month in which
escalation takes place, and (ii) the month -to -month extension shall be terminable upon 15 days' prior written notice
from either Licensor or Licensee to the other; provided, however, nothing contained herein shall grant Licensee the
unilateral right to extend the Term of this Agreement after the expiration of the Term.
LIMITED COMMON EXPENSES. Licensee shall reimburse Licensor for Licensee's pro -rata share of all common
expenses (the "Common Expenses ") incurred by Licensor in the installation, operation, maintenance and repair of the
Tower Facility, including, but not limited to, the construction, maintenance and repair of a common septic system and
field, insurance, common utilities and any and all other costs of operating and maintaining the Tower Facility.
Notwithstanding the foregoing, the cost and expenses associated with any Damage which is directly attributable to the
acts or omissions of Licensee or Licensee's contractors shall be borne solely by Licensee. Licensee shall not be
required to pay any share of costs or expenses incurred to replace the Tower nor will Licensee be required to remove
any existing equipment which is not Licensee's Approved Equipment set forth on Exhibit A from the Tower. In the event
that Licensee also licenses space within a building or shelter owned by Licensor on the Tower Facility, Licensee shall
also reimburse Licensor for its pro -rata share of all Common Expenses incurred for the operation, maintenance, repair
and replacement associated with such building or shelter, including, without limitation, the physical structure of the
building, HVAC system, and common utility expenses. In the event that Licensee is connected to a generator or back-
up power supply owned by Licensor, Licensee shall also reimburse Licensor for its pro -rata share of all expenses
incurred for the operation, maintenance, repair and replacement associated with such generator, including, without
limitation, fuel expenses. For the purposes of this section, a "pro -rata share" of costs and expenses shall be determined
based on the number of licensees using the Tower Facility (or with respect to a shared shelter or building, the number
of licensees using Licensor's shelter or building) on the first day of the month in which an invoice is mailed to Licensee.
Licensee shall reimburse Licensor for Common Expenses within 30 days following receipt of an invoice from Licensor.
8. SITE INSPECTION. Concurrent with Licensee's delivery of a fully executed Agreement to Licensor, and before the date
of any subsequent modifications to or installation of additional Approved Equipment, Licensee shall pay Licensor the
Site Inspection Fee as defined on page 1 of this Agreement. In the event that Licensor installs Licensee's Approved
Equipment, Licensor shall waive the Site Inspection Fee with respect to such installation. Licensee acknowledges that
any site inspection performed by Licensor of Licensee's installation is for the sole purpose and benefit of Licensor and
its affiliates, and Licensee shall not infer from or rely on any inspection by Licensor as assuring Licensee's installation
complies with any Applicable Laws, that the installation was performed in a good, workmanlike manner or that such
installation will not cause impermissible or unlawful interference.
9. LABELING. Licensee shall identify its Approved Equipment, including its equipment cabinets and coaxial cable (at the
top and bottom of the Tower) (unless such cabinet is located in a building or cabinet owned by Licensee) by labels with
Licensee's name, contact phone number and date of installation. In the event that Licensee fails to comply with this
provision and fails to cure such deficiency within 10 days of Licensor's written notice of such failure, Licensor may, but is
not obligated to, in addition to any other rights it may have hereunder, label the Approved Equipment and assess
against Licensee a fee of $1,500 which shall be payable to Licensor upon receipt of an invoice therefor. Licensor shall
not be responsible to Licensee for any expenses or Damages incurred by Licensee arising from the interruption of
Licensee's service caused by Licensor, if Licensor is unable to identify the Approved Equipment as belonging to
Licensee as a result of Licensee's failure to label such Approved Equipment.
10. IMPROVEMENTS BY LICENSEE
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
(a) Installation and Approved Vendors. Prior to the commencement of any Work on the Tower Facility, Licensee
shall submit to Licensor for review and approval, which approval shall not be unreasonably withheld, detailed plans
and specifications accurately describing all aspects of the proposed Work. Licensee shall provide notice to Licensor
no less than 5 days prior to the date upon which Licensee intends to commence Work at the Tower Facility,
together with a construction schedule, so Licensor has the opportunity to be present during any such Work.
Licensee shall not commence Work on the Tower Facility until Licensor issues to Licensee a NTP. Licensor shall
issue a NTP only upon request from Licensee and receipt of the following complete and accurate documentation:
(1) evidence that any contingencies set forth in the approval of Licensee's Application have been satisfied; (2)
evidence that Licensee has obtained all required governmental approvals including, but not limited to, zoning
approvals, building permits, and any applicable environmental approvals including copies of the same; (3) a copy of
the plans and specifications that have been approved by Licensor for the proposed equipment installation; (4)
evidence that any contractors, other than Licensor, that will be performing the Work are on Licensor's approved
vendor list, with valid and current worker's compensation and general liability insurance certificates on file with
Licensor naming Licensor as an additional insured and which otherwise satisfy the insurance coverage
requirements set forth in section 15(d) of this Agreement; and (5) a construction schedule. In no event will a NTP
be issued prior to the payment by Licensee of a Relocation Application Fee when required pursuant to section 10(c)
of this Agreement. Notwithstanding anything to the contrary in this Agreement, Licensor reserves the right, in its
sole discretion, to refuse to permit any person or company to climb the Tower.
(b) Structural Analysis /Interference Analysis. Prior to the commencement of any Work on the Tower Facility by or
for the benefit of Licensee, Licensor may, in its reasonable discretion, perform or cause to be performed a structural
analysis or require a professional engineer's certified letter to determine the availability of capacity at the Tower
Facility for the installation or modification of any Approved Equipment and /or additional equipment at the Licensed
Space by Licensee. Licensee agrees to remit payment to Licensor for all reasonable costs and expenses incurred
by Licensor for such structural analysis or professional engineer's certified letter ( "Structural Analysis Fee ") within
30 days following receipt of an invoice from Licensor. The foregoing charge shall be at Licensor's prevailing rates
for the performance of same or the amount Licensor's vendor is then charging Licensor, as applicable. In the event
a structural analysis is performed after the execution of this Agreement but prior to the initial installation of the
Approved Equipment, and such analysis indicates that the existing Tower cannot accommodate the proposed
installation of Licensee's Approved Equipment thereon, Licensor shall notify Licensee that modification of the Tower
is required and inform Licensee of the fee Licensor will charge Licensee to complete such modification (which fee
shall be a reasonable estimate of Licensor's actual cost of making such modifications). Such modification shall
become part of the Tower Facility and be Licensor's sole property. If Licensee elects not to pay such fee, and
Licensee and Licensor do not otherwise reach an agreement regarding the costs of such modification, Licensee
may terminate this Agreement upon written notice to Licensor. Prior to the commencement of any initial or
subsequent construction or installation on the Tower Facility by or for the benefit of Licensee and /or the modification
of Licensee's Permitted Frequencies propagated from the Licensed Space, Licensor may elect to perform a shared
site interference study ( "SSIS ") and Licensee shall pay Licensor a fee of $1,600.00 per study ( "SSIS Fee "), as
adjusted annually on the anniversary of the Commencement Date by a percentage rate equal to the Annual
Escalator. This fee shall be payable at the time Licensee pays the Relocation Application Fee where required
pursuant to section 10(c) of this Agreement, or immediately upon receipt of notice from Licensor that Licensor has
determined that a SSIS is required. In the event a SSIS is performed after the execution of this Agreement by
Licensor but prior to the installation of Licensee's Approved Equipment, and such SSIS indicates that the proposed
installation of Licensee's Approved Equipment on the Tower is acceptable, such an indication in no way relieves
Licensee of its obligations under section 11 herein.
(c) Equipment; Relocation, Modification, Removal. Licensor hereby grants Licensee reasonable access to the
Licensed Space for the purpose of installing and maintaining the Approved Equipment and its appurtenances.
Except as otherwise provided, Licensee shall be responsible for all site Work to be done on the Licensed Space or
the Easement pursuant to this Agreement. Licensee shall provide all materials and shall pay for all labor for the
construction, installation, operation, maintenance and repair of the Approved Equipment. Licensee shall not
construct, install or operate any equipment or improvements on the Tower Facility other than those which are
described on Exhibit A, alter the Permitted Frequencies, or alter the operation of the Approved Equipment.
Licensee shall submit an Application, utilizing Licensor's then current form, to request the right to replace or modify
its Approved Equipment, alter the Permitted Frequencies or increase the Ground Space, which Application shall be
accompanied by a Relocation Application Fee. Licensor shall evaluate for approval the feasibility of Licensee's
request, which approval shall be in Licensor's sole discretion. Licensee acknowledges that any such relocation or
modification of the Approved Equipment may result in an increase in the Monthly License Fee. An amendment to
this Agreement shall be prepared to reflect each addition or modification to Licensee's Approved Equipment to
which Licensor has given its written consent and the resulting increase in the Monthly License Fee, if any.
Notwithstanding the foregoing, Licensee may perform routine maintenance, and may modify and /or replace
equipment within Licensee's shelter without needing to submit an Application to Licensor Both Parties agree that
Licensee shall follow Licensors application process for all other future modifications to Licensees Approved
Equipment Licensee shall have the right to remove all Approved Equipment at Licensees sole expense on or
before the expiration or earlier termination of the License provided Licensee repairs any damage to the Tower
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Facility or the Tower caused by such removal. Within 30 days of the expiration or termination of this Agreement for
any reason, Licensee shall: (i) remove the Approved Equipment and any other property of Licensee at the Tower
Facility at Licensee's sole risk, cost, and expense; (ii) deliver the Licensed Space in substantially the same and in
as good a condition as received (ordinary wear and tear excepted); and (iii) repair any damage caused by the
removal of the Approved Equipment within twenty (20) days of the occurrence of such damage. If Licensee fails to
timely pay the Holdover Fee or does not remove its Approved Equipment within 30 days after the expiration or
termination of this Agreement, (i) the Approved Equipment shall be deemed conclusively and absolutely abandoned
by Licensee and anyone claiming by, through, or under Licensee except for Hazardous Materials and waste and
Approved Equipment containing Hazardous Materials and waste; and (ii) Licensor shall have the right to remove the
Approved Equipment at Licensee's sole expense and dispose of such Approved Equipment in any manner Licensor
so elects, and Licensee shall reimburse Licensor for its expenses upon demand without off -set.
11. RF INTERFERENCE/ USER PRIORITY.
(a) Definitions. For purposes of this section 11, the following capitalized terms shall have the meanings set forth
herein:
(i) Interference includes any performance degradation, misinterpretation, or loss of information to a radio
communications system caused by unwanted energy emissions, radiations, or inductions, but shall not include
permissible interference as defined by the FCC, and in addition, with regard to Unlicensed Frequencies,
congestion.
(ii) Licensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are
licensed by the FCC in the geographic area where the Tower Facility is located.
(iii) A Licensed User is any user of the Tower Facility, including Licensee, which transmits and /or receives
Licensed Frequencies at the Tower Facility, but only with respect to such Licensed Frequencies.
(iv) A Priority User is any Licensed User of the Tower Facility that holds a priority position in relationship to
Licensee for protection from Interference, as determined in this section 11, which status is subject to change
as set forth herein.
(v) A Subsequent User is any user of the Tower Facility that holds a subordinate position in relationship to
Licensee for protection from Interference, as determined in this section 11, which status is subject to change
as set forth herein.
(vi) Unlicensed Frequencies are those certain channels or frequencies of the radio frequency spectrum that are
not licensed by the FCC and are available for use by the general public in the geographic area where the
Tower Facility is located.
(vii) An Unlicensed User is any user of the Tower Facility, including Licensee, which transmits and /or receives
Unlicensed Frequencies at the Tower Facility, but only with respect to such Unlicensed Frequencies.
(b) Information. Licensee shall cooperate with Licensor and with other lessees, licensees or occupants of the Tower
Facility for purposes of avoiding Interference and /or investigating claims of Interference. Upon request, Licensee,
within 10 business days of Licensors request, shall provide Licensor with a list of Licensee's transmit and receive
frequencies and Approved Equipment specifications necessary to resolve or investigate claims of Interference.
(c) Unlicensed Frequencies. Notwithstanding any other provision contained herein, as among Licensor, Licensee
and other users of the Tower or Tower Facility, (i) an Unlicensed User shall have no priority with respect to any
other FCC Unlicensed Users with respect to Interference; and (ii) an Unlicensed User's rights and obligations with
respect to such Interference shall be determined and governed by FCC Rules and Regulations and any other
Applicable Law. Licensor expressly disclaims any and all warranties and accepts no responsibility for management,
mediation, mitigation or resolution of Interference among FCC Unlicensed Users operating at the Tower Facility and
shall have no liability therefor.
(d) Licensed Frequencies. Subject to FCC Rules and Regulations and other Applicable Law, the Parties
acknowledge and agree that the accepted industry standard for priority protection from Interference between
multiple Licensed Users has been based on the priority of occupancy of each user to another user of the Tower or
Tower Facility, which priority has been based on the order of submittal of its collocation Application by each user of
the Tower or Tower Facility. Should Application of FCC Rules and Regulations and other Applicable Law not
resolve any claims of Interference consistent with subsections 1 1(e). 1 1(f) and 1 1(g) below as among Licensor,
Licensee and other users of the Tower Facility, (i) each Licensed User's priority shall be maintained so long as the
Licensed User does not change the equipment and /or frequency that it is entitled to use at the Tower Facility at the
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
time of its initial occupancy; and (ii) Licensee acknowledges and agrees that if Licensee replaces its Approved
Equipment or alters the radio frequency of the Approved Equipment to a frequency range other than as described
on page 1 of this Agreement, Licensee will lose its priority position for protection from Interference with regard to
Approved Equipment operating at the new frequency in its relationship to other Licensed Users which are in place
as of the date Licensee replaces its Approved Equipment or alters its radio frequency, consistent with this section
11.
(e) Correction.
(i) Licensee. Licensee agrees not to cause Interference with the operations of any other user of the Tower or
Tower Facility and to comply with all other terms and provisions of this section 11 imposed upon Licensee. If
Licensor determines, in its reasonable discretion based on standard and accepted engineering practices, that
Licensee's Approved Equipment is causing Interference to the installations of Licensor or a Priority User, Licensee
shall, within 48 hours of notification from Licensor, commence such actions as are necessary to mitigate or
eliminate the Interference, with the exception of ceasing Licensee's operations. If Licensee cannot mitigate or
eliminate such Interference within the 48 hour period, Licensor may file a complaint with the FCC (currently the
FCC's Enforcement Bureau, Spectrum Enforcement Division) or if such other user of the Tower Facility which is
subject to Interference from Licensee's Approved Equipment is a Priority User, then upon the request of such
Priority User consistent with Licensor's contractual obligations owed to the Priority User, Licensor may require that
Licensee turn off or power down its interfering Approved Equipment and only power up or use such Approved
Equipment during off -peak hours specified by Licensor in order to test whether such Interference continues or has
been satisfactorily eliminated. If Licensee is unable to resolve or eliminate, to the satisfaction of Licensor, such
Interference within 30 days from Licensee's initial notification thereof, Licensee will immediately remove or cease
operations of the interfering Approved Equipment.
(ii) Licensor. Upon the request of Licensee, Licensor hereby covenants to take commercially reasonable efforts to
prohibit a Subsequent User from causing Interference with the operations of Licensee to the extent Licensee is a
Priority User pursuant this section 11. If Licensor determines, in its reasonable discretion based on standard and
accepted engineering practices, that a Subsequent User's equipment is causing Interference to the installations of
Licensee, upon Licensee's request, Licensor shall, within 48 hours of request, commence such actions as are
necessary to mitigate or eliminate the Interference. Notwithstanding the foregoing, Licensor recognizes that
Licensee operates the subject radio system and associated equipment for the purposes of supporting its public
safety radio communications, including 911 operations, for itself and other external public safety agencies. Licensee
reserves the right to utilize the FCC mandated process for non - resolved interference to public safety radio
communications as specified in the memorandum of understanding ( "MOU ") between the Association of Public
Safety Communications ( "APCO ") and the FCC, dated July 17, 1998, at its discretion.
(iii) Government Users. Notwithstanding the foregoing, if another user of the Tower or Tower Facility is a
governmental entity, Licensor shall give such governmental entity written notice of the Interference within 5
Business Days of Licensor's determination that such action is reasonably necessary. Licensor shall have the right
to give the governmental entity 5 Business Days, or more as specified in the governmental site or occupancy
agreement or as required by Applicable Law, from the receipt of such notice prior to Licensor being required to take
any actions required by this subsection 11 (e) to cure such Interference.
(f) FCC Requirements Regarding Interference. Nothing herein shall prejudice, limit or impair Licensee's rights under
Applicable Law, including, but not limited to, FCC Rules and Regulations to redress any Interference independently
of the terms of this section 11. Notwithstanding anything herein to the contrary, the provisions set forth in this
section 11 shall be interpreted in a manner so as not to be inconsistent with Applicable Law, including, but not
limited to, FCC Rules and Regulations and nothing herein relieves Licensee from complying with all Applicable
Laws governing the propagation of radio frequencies and /or radio frequency interference. The Parties acknowledge
that currently FCC Rules and Regulations govern the obligations of wireless telecommunication service providers
with respect to the operation of equipment and use of frequencies. Consequently, the provisions set forth in this
section 11 are expressly subject to CFR, Title 47, including but not limited to Part 15, et seq, governing Radio
Frequency Devices; Part 20, et seq, governing commercial mobile radio services; Part 24, et seq, governing
personal communications services; and Part 90, et seq, governing private land mobile radio services. In addition, in
accordance with good engineering practice and standard industry protocols, licensees employ a wide range of
techniques and practices, including those involving the use of proper types of equipment as well those related to the
adjustment of operating parameters, in a mutually cooperative effort to identify and mitigate sources of Interference.
The obligation of Part 20 licensees, including, but not limited to, private paging, specialized mobile radio services,
cellular radiotelephone service and personal communications services, to avoid Interference is set forth in 47 CFR
Part 90, Subpart N — Operating Requirements, §90.403(e). Claims of Interference are ultimately cognizable before
the FCC's Enforcement Bureau, Spectrum Enforcement Division Licensee shall observe good engineering
practice and standard industry protocols applying such commercially reasonable techniques as constitute best
practices among licensees, in the deployment of their frequencies and the operation of the Approved Equipment. If
Licensee deploys its frequencies or operates the Approved Equipment in a manner which prevents any other user
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
of the Tower or Tower Facility from decoding signal imbedded in their licensed frequencies such that the Spectrum
Enforcement Division makes a determination that Licensee is the cause of the Interference and Licensee fails or
refuses to mitigate or eliminate the Interference within the time and manner proscribed by the Spectrum
Enforcement Division, Licensee shall be default of this Agreement and the remedies set forth in section 22 shall
apply.
(g) Public Safety Interference. As of the Commencement Date, Licensor and Licensee are aware of the publication of
FCC Final Rule, Private Land Mobile Services; 800 MHz Public Safety Interference Proceeding, Federal Register.
November 22, 2004 (Volume 69, Number 224), Rules and Regulations, Page 67823 -67853 ( "Final Rule "). Claims
of Interference made by or against users which are public safety entities shall be in compliance with the Final Rule
as and when effective, or otherwise in accordance with FCC Rules and Regulations.
(h) AM Detuning. The parties acknowledge that the FCC Rules and Regulations govern the obligations of Licensee
with respect to the operation of the Approved Equipment. Consequently, the provisions set forth in this Agreement
are expressly subject to the FCC Rules and Regulations, including, but not limited to 47 C.F.R. §§ 27.63, 22.371
and 73.1692. Licensee agrees, at Licensee's sole cost, to comply with the foregoing as well as any and all other
FCC Rules, Regulations and public guidance relating to AM detuning as such provisions currently exist or are
hereafter modified. Licensee shall be fully responsible for any pre and /or post installation testing for AM interference
at the Tower Facility and for the installation of any new detuning apparatus or the adjustment of any existing
detuning apparatus that may be necessary to prevent adverse effects on the radiation pattern of any AM station
caused by the installation of the Approved Equipment. Licensee shall provide Licensor with written proof of such
compliance. In the event that Licensee determines that pre or post - installation testing for AM interference is not
required at the Tower Facility, such a determination shall be at Licensee's sole risk. If Licensee or Licensor
receives a complaint of interference from an AM broadcast station after the Approved Equipment is added to a
Tower or a Tower is modified to accommodate Licensee, Licensee shall eliminate such interference within 30
calendar days of the receipt of such complaint. Licensee's failure to eliminate such interference within such 30 day
period shall constitute a default under this Agreement and Licensor shall have the right to eliminate such
interference at Licensee's expense.
12. SITE RULES AND REGULATIONS. Licensee agrees to comply with the reasonable rules and regulations established
from time to time at the Tower Facility by Licensor, which may be modified by Licensor from time to time upon receipt by
Licensee of such revised rules and regulations. Such rules and regulations will not unreasonably interfere with
Licensee's use of the Licensed Space under this Agreement.
13. DESTRUCTION; CONDEMNATION.
(a) Destruction. If the Tower or other portions of the improvements at the Tower Facility owned by Licensor are
destroyed or so damaged as to materially interfere with Licensee's use and benefits from the Licensed Space,
Licensor or Licensee shall be entitled to elect to cancel and terminate this Agreement on the date of such casualty
and any unearned Monthly License Fee paid in advance of such date shall be refunded by Licensor to Licensee
within 30 days of such termination date. Notwithstanding the foregoing, Licensor may elect, in its sole discretion, to
restore the damaged improvements, in which case Licensee and Licensor shall remain bound to the terms of this
Agreement but Licensee shall be entitled to an abatement of the Monthly License Fee during the loss of use. If the
Tower is so damaged that reconstruction or repair cannot reasonably be undertaken without removing the
Approved Equipment, then (i) Licensor may, upon giving written notice to Licensee, remove any of the Approved
Equipment and interrupt the signal activity of Licensee, (ii) Licensee may, at Licensee's sole cost and expense,
install temporary facilities pending such reconstruction or repair, provided such temporary facilities do not interfere
with the construction, rebuilding or operation of the Tower, (iii) Licensor agrees to provide Licensee alternative
space, if available, on the Tower or at the Tower Facility during such reconstruction /repair period and (iv) should
Licensor not substantially restore or replace the Tower in a fashion sufficient to allow Licensee to resume
operations thereon within 5 months of the date of casualty, provided that such 5 month period shall be automatically
extended for so long as Licensor has commenced and diligently continues to restore or replace such Tower, and
Licensee's operation has been materially disrupted for 90 or more consecutive days, then Licensee, upon 30 days
prior written notice to Licensor, may terminate this Agreement.
(b) Condemnation. If the whole or any substantial part of the Tower Facility shall be taken by any public authority
under the power of eminent domain or in deed or conveyance in lieu of condemnation so as to materially interfere
with Licensee's use thereof and benefits from the Licensed Space, then this Agreement shall terminate on the part
so taken on the date of possession by such authority of that part, and Licensor or Licensee shall have the right to
terminate this Agreement and any unearned Monthly License Fee paid in advance of such termination shall be
refunded by Licensor to Licensee within 30 days following such termination. Notwithstanding the foregoing,
Licensor may elect to rebuild the Tower or other improvements affected by such condemnation at an alternate
location or property owned, leased or managed by Licensor. in which case Licensee and Licensor shall remain
bound hereby so long as there is no material interference with Licensee's ability to operate Licensee's Approved
Equipment. Upon such relocation of the Tower or improvements, the Licensed Space shall be modified to include
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Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
the new Tower or improvements and the property on which the same are located and this Agreement shall be
amended accordingly to clarify the rights of Licensor and Licensee with respect to the Licensed Space.
(c) License Fee Abatement. The Monthly License Fee with respect to the affected Tower Facility shall be abated
during any period that the Tower has not been restored following an event described in subsections (a) or (b) above
so long as Licensee is unable to continue to operate from a temporary location at the property during any period of
restoration.
14. COMPLIANCE WITH LAWS. Licensor shall be responsible for compliance with any marking and lighting requirements
of the FAA and the FCC applicable to the Tower Facility, provided that if the requirement for compliance results from the
presence of the Approved Equipment on the Tower, Licensee shall pay the costs and expenses therefor (including any
lighting automated alarm system so required). Licensee has the responsibility of carrying out the terms of Licensee's
FCC license with respect to tower light observation and notification to the FAA if those requirements imposed on
Licensee are in excess of those required of Licensor. Notwithstanding anything to the contrary in this Agreement,
Licensee shall at all times comply with all Applicable Laws and ordinances and all rules and regulations of municipal,
state and federal governmental authorities relating to the installation, maintenance, location, use, operation, and
removal of the Approved Equipment and other alterations or improvements authorized pursuant to the provisions of this
Agreement.
15. INDEMNIFICATION; INSURANCE.
(a) Mutual Indemnity. Intentionally Omitted
(b) Limits on Indemnification. Intentionally Omitted
(c) Survival. The provisions of this section 15 shall survive the expiration or earlier termination of this Agreement with
respect to any events occurring on or before expiration or termination of same whether or not Claims relating
thereto are asserted before or after such expiration or termination.
(d) Insurance. Licensor and Licensee shall keep in full force and effect, during the Term of this Agreement, insurance
coverage in accordance with Appendix II attached hereto.
16. LIMITATION OF PARTIES' LIABILITY. EACH PARTY SHALL BE LIABLE FOR ANY DAMAGES OR LOSS DIRECTLY
CAUSED BY THE NEGLIGENT ACTS, OMISSIONS OR INTENTIONAL MISCONDUCT OF ITS OWN EMPLOYEES,
OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS. NEITHER LICENSOR NOR LICENSEE SHALL BE
RESPONSIBLE FOR, AND HEREBY WAIVES ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED
RESULTING FROM (i) LICENSEE'S USE OR LICENSEE'S INABILITY TO USE THE TOWER FACILITY, OR (ii)
DAMAGE TO THE OTHER'S EQUIPMENT.
17. DISCLAIMER OF WARRANTY. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THE TOWER FACILITY
OR THE TOWER. LICENSEE HEREBY ACCEPTS THE TOWER FACILITY "AS IS, WHERE IS, WITH ALL
FAULTS."
18. NOTICES. All notices, demands, approvals, requests and other communications shall be in writing to such Party at the
address listed in the introductory paragraph of this Agreement (and in each case, in the event of notice to Licensor, with
a copy of such notice to American Towers, Inc., 116 Huntington Avenue, Boston, MA 02116, Attention: General
Counsel) or at such other address as such Party shall designate by notice to the other party hereto in accordance with
this section 18 (the "Notice Address ") and may be personally delivered; mailed, via United States certified mail, return
receipt requested; or transmitted by overnight courier for next Business Day delivery, and, if not delivered personally,
shall be deemed to be duly given or made 2 Business Days after deposit with the applicable carrier or courier. Notices
will be deemed to have been given upon either receipt or rejection. Notwithstanding the foregoing, (i) any notice that is
given by a party may be given by the attorneys for that party and shall be deemed effective for all purposes herein, and
(iii) only notices, letters, documents, or instruments threatening to declare or declaring such addressee or recipient in
default under this Agreement shall be required to be sent to the attorneys representing such addressee or recipient, if
the name and address of such attorney is provided for herein.
19. ASSIGNMENT; SUBLEASING. Licensee may not assign this Agreement as a whole, or any portion of Licensee's
rights, title and interests hereunder without Licensor's prior written consent, which such consent will not be unreasonably
delayed; provided, however, that Licensor's consent will not be required for an assignment to (i) any person or entity
which is directly or indirectly (through one or more subsidiaries) controlled by, controlling or under common control with
Licensee, (ii) is the successor or surviving entity by a merger or consolidation of such entity pursuant to Applicable Law,
or (iii) purchases substantially all the assets of Licensee (collectively, "Permitted Affiliate ") For the purpose of this
section 19 "control" means ownership, directly or indirectly. of 50% or more of the voting stock equity or beneficial
interest or a general partner of any partnership, and the ability to effectively control or direct the business of Licensee
In no event may Licensee sublet, sublease, or permit any use of the Tower Facility or Licensed Space by any other
II
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
party. Any permitted assignee shall expressly assume, and become bound by, all of Licensee's obligations under this
Agreement. Licensor may freely assign, transfer, or sublease this Agreement and, in such event, Licensor shall be
relieved of all of its obligations under this Agreement from and after the date of such assignment or transfer; Licensee
shall pay Licensor a fee of $500.00 in each instance in which Licensee requests Licensor to consent to an assignment
of this Agreement or in which Licensee seeks an estoppel certificate, nondisturbance agreement, subordination
agreement or other similar agreement to defray the administrative cost incurred by Licensor to process such requests,
prepare and process any necessary documentation, and modify its database and other information systems to reflect
any such agreement. Such fee is due upon submission of Licensor's request and is hereby deemed fully earned by
Licensor upon receipt. Notwithstanding anything to the contrary, Licensor may condition its consent to any assignment,
on (i) requiring that the assignee execute a new form of license agreement so long as the Monthly License Fee and
Initial and Renewal Terms of such agreement are consistent with those set forth in this Agreement; (ii) requiring that
assignee and /or Licensee provide any and all documentation required by Licensor, in Licensor's sole discretion, which
pertains to and may assist with Licensor's approval of assignee's credit, which may include requiring the assignee to
demonstrate that it maintains at the time of such assignment, as evidenced by current financial statements provided to
Licensor, a financial position reasonably demonstrating the ability of such assignee to meet and perform the obligations
of Licensee hereunder through the unexpired balance of the then current Initial Term or Renewal Term. Any purported
assignment by Licensee in violation of the terms of this Agreement shall be void. This Agreement shall be binding upon
the successors and permitted assigns of both Parties.
20. SUBORDINATION TO GROUND LEASE. The Parties acknowledge and agree that in the event Licensor's rights in the
Licensed Space and /or any part of the Tower Facility is derived in whole or part pursuant to an underlying lease,
sublease, permit, easement or other right of use agreement (a "Ground Lease "), all terms, conditions and covenants
contained in this Agreement shall be specifically subject to and subordinate to the terms and conditions of the applicable
Ground Lease. In the event that any of the provisions of the Ground Lease are in conflict with any of the provisions of
this Agreement (other than those provisions relating to the length of term, termination rights or financial consideration),
the terms of the Ground Lease shall control. Further, Licensee agrees to comply with the terms of such Ground Lease
as applicable to the access and occupancy of the Licensed Space. Notwithstanding anything contained in this
Agreement to the contrary, if the Ground Lease expires or is terminated for any reason, this Agreement shall terminate
on the effective date of such termination and Licensor shall have no liability to Licensee as a result of the termination of
this Agreement. Licensor is under no obligation to extend the term of or renew the Ground Lease. Licensor shall give
Licensee written notice of such termination or expiration of this Agreement as a result of the termination or expiration of
the Ground Lease as soon as practicable. Unless prohibited by the terms of such Ground Lease, upon Licensee's
written request, Licensor shall provide a copy of any applicable Ground Lease with the economic terms and other terms
that Licensor deems reasonably confidential redacted.
21. DEFAULT.
(a) The occurrence of any of the following instances shall be considered to be a default or a breach of this Agreement by
Licensee: (i) any failure of Licensee to pay the Monthly License Fee, or any other charge for which Licensee has the
responsibility of payment under this Agreement, within 10 Business Days of the date following written notice to Licensee
from Licensor, or its designee, of such delinquency, it being understood, however, that Licensor is obligated to provide
such notice only two times in each calendar year, and the third instance of the failure to pay the Monthly License Fee or
any other charge shall be an immediate default without notice to Licensee if not paid within 10 Business Days of the
date when due; (ii) any failure of Licensee to perform or observe any term, covenant, provision or condition of this
Agreement which failure is not corrected or cured by Licensee within 30 days of receipt by Licensee of written notice
from Licensor, or its designee, of the existence of such a default; except such 30 day cure period shall be extended as
reasonably necessary to permit Licensee to complete a cure so long as Licensee commences the cure within such 30
day cure period and thereafter continuously and diligently pursues and completes such cure; (iii) failure of Licensee to
abide by the Interference provisions as set forth in section 11; (iv) Licensee shall become bankrupt, insolvent or file a
voluntary petition in bankruptcy, have an involuntary petition in bankruptcy filed against Licensee which cannot be or is
not dismissed by Licensee within 60 days of the date of the filing of the involuntary petition, file for reorganization or
arrange for the appointment of a receiver or trustee in bankruptcy or reorganization of all or a substantial portion of
Licensee's assets, or Licensee makes an assignment for such purposes for the benefit of creditors; (v) this Agreement
or Licensee's interest herein or Licensee's interest in the Tower Facility are executed upon or attached; (vi) Licensee
commits or fails to perform an act which results in a default under or nonconformance with the Ground Lease by
Licensor and the same shall not be cured within 5 Business Days (or such shorter time as permitted under the Ground
Lease to cure) of the date following written notice to Licensee from Licensor, or its designee, of such default; or (vii) the
imposition of any lien on the Approved Equipment except as may be expressly authorized by this License, or an attempt
by Licensee or anyone claiming through Licensee to encumber Licensor's interest in the Tower Facility, and the same
shall not be dismissed or otherwise removed within 10 Business Days of written notice from Licensor to Licensee.
(b) LICENSOR's Default: It shall be considered to be a default of this Agreement by Licensor if Licensor shall fail to
observe or perform any of the terms and conditions of this Agreement to be observed or performed by Licensor, and
Licensor shall not remedy such failure within 30 days following written notice from Licensee or if such failure is not
reasonably susceptible to being remedied within such 30 day period. if Licensor shall not within such 30 day period
commence to remedy such failure and thereafter exercise commercially reasonable efforts to prosecute such remedy to
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Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
completion. Upon the occurrence of a Licensor default under this Agreement, Licensee shall be entitled to pursue any
and all legal and equitable rights and remedies permitted by Applicable Law, subject to the terms hereof and limitations
contained in this Agreement.
22. REMEDIES. In the event of a default or a breach of this Agreement by Licensee and after Licensee's failure to cure the
same within the time allowed Licensee to cure such default as previously set forth in section 21(a), if applicable, then
Licensor may, in addition to all other rights or remedies Licensor may have hereunder at law or in equity, (i) terminate
this Agreement by giving written notice to Licensee, stating the date upon which such termination shall be effective,
accelerating and declaring to be immediately due and payable the then present value of all Monthly License Fees and
other charges or fees which would have otherwise been due Licensor absent a breach of the Agreement by Licensee,
discounted by an annual percentage rate equal to 5 %, (ii) terminate electrical power to the Approved Equipment, and /or
(iii) remove the Approved Equipment without being deemed liable for trespass or conversion and store the same at
Licensee's sole cost and expense for a period of 30 days after which the Approved Equipment, other than Hazardous
Materials, will be deemed conclusively abandoned if not claimed by Licensee. Licensee shall pay all reasonable
attorney's fees, court costs, removal and storage fees (including any damage caused thereby), and other items of cost
reasonably incurred by Licensor in recovering the Monthly License Fee or other fee or charge. Licensee shall not be
permitted to claim the Approved Equipment until Licensor has been reimbursed for removal and storage fees. Past due
amounts under this Agreement will bear interest from the date upon which the past due amount was due until the date
paid at a rate equal to 10% per annum, or at a lower rate if required by law in the state in which this Agreement is to be
performed. In addition, Licensee shall be assessed a late payment fee equal to 10% of the then - current Monthly
License Fee for any payment or reimbursement due to Licensor under this Agreement which is overdue by ten (10) days
or more and such fee shall be assessed for each 30 day period thereafter that any such amount (or portion thereof)
remains unpaid. Notwithstanding the foregoing, both Parties agree that the aforementioned 10% increases shall not
apply if Licensor has made an accounting error where Licensor later determines that Licensee has made payments in
accordance with this Agreement. Both Parties specifically acknowledge that this section 22 is subject to the "No Set -
Off' section previously set forth in section 5(f). All other terms and provisions set forth in this Agreement shall apply to
this section 32.
23. GOVERNMENTAL APPROVALS; PERMITS. In the event that any governmental permit, approval or authorization
required for Licensor's use of, operation of, or right to license space to Licensee at the Tower Facility is terminated or
withdrawn by any governmental authority or third party as part of any governmental, regulatory, or legal proceeding,
Licensor may terminate this Agreement. Licensee hereby agrees that in the event of a governmental or legal order
requiring the removal of the Approved Equipment from the Tower, the modification of the Tower, or the removal of the
Tower, Licensee shall remove the Approved Equipment promptly, but in no event later than the date required by such
order, at Licensee's sole cost and expense. Licensor shall cooperate with Licensee in Licensee's efforts to obtain any
permits or other approvals that may be necessary for Licensee's installation and operation of the Approved Equipment,
provided that Licensor shall not be required to expend any funds or undertake any liability or obligation in connection
with such cooperation. Licensor may elect to obtain such required approvals or permits on Licensee's behalf, at
Licensee's sole cost and expense. In no event may Licensee encourage, suggest, participate in or permit the imposition
of any restrictions or additional obligations whatsoever on the Tower Facility or Licensor's current or future use or ability
to license space at the Tower Facility as part of or in exchange for obtaining any such approval or permit. In the event
that Licensee's shelter or cabinets are installed above a third -party or Licensor -owned shelter or building, Licensee shall
be solely responsible for obtaining any required approvals, or permits in connection with such shelter or cabinet
installation, excepting the consent of other users at the Tower Facility and /or the ground landlord which shall remain the
sole responsibility of Licensor where required.
24. REPLACEMENT OF TOWER/RELOCATION OF APPROVED EQUIPMENT.
(a) Replacement of Tower. Licensor may, at its election, replace or rebuild the Tower or a portion thereof. Such
replacement will (i) be at Licensor's sole cost and (ii) not result in an interruption of Licensee's communications
services beyond that which is necessary to replace the new Tower. If Licensee, in Licensee's reasonable discretion,
cannot operate the Approved Equipment from the existing Tower during such replacement or rebuild of the Tower,
Licensee may establish, at Licensee's sole cost, a temporary facility on the Tower Facility to provide such services as
Licensee deems necessary during any such construction by Licensor so long as adequate space is then available. The
location of such temporary facilities shall be subject to Licensor's approval. The License Fee due hereunder shall be
abated for any period during which Licensee is prevented from broadcasting from the existing Tower due to such
replacement or relocation. At the request of either Party, Licensor and Licensee shall enter into an amendment to
this Agreement to clarify the rights of Licensor and Licensee to the new Tower Facility.
(b) Intentionally deleted.
(c) Tower Removal If during the term of this Agreement Licensor determines based on engineering structural
standards generally applied to communications towers that the Tower is or has become structurally unsound such
that pursuant to generally accepted industry safety standards the Tower or a portion thereof must be removed,
then, upon 90 days prior written notice to Licensee, Licensor may, in its sole discretion either (i) remove the Tower
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Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
and terminate this Agreement effective as of the date of such removal, or (ii) modify the Tower and relocate
Licensee's Approved Equipment to an alternative location on the modified Tower. If Licensee and Licensor are not
able to agree on an alternative location on the modified Tower for the installation of Licensee's Approved
Equipment within the foregoing 90 day notice period, then Licensee or Licensor may elect to terminate the
Agreement.
25. EMMISIONS. If antenna power output ( "RF Emissions ") is presently or hereafter becomes subject to any restrictions
imposed by the FCC or other governmental agency for RF Emissions standards on Maximum Permissible Exposure
( "MPE ") limits, or if the Tower Facility otherwise becomes subject to federal, state or local rules, regulations, restrictions
or ordinances, Licensee shall comply with Licensor's reasonable requests for modifications to the Approved Equipment
which are reasonably necessary for Licensor to comply with such limits, rules, regulations, restrictions or ordinances and
Licensor shall use commercially reasonable efforts to cause all other licensees of the Tower Facility to promptly comply.
If Licensor requires an engineering evaluation or other power density study be performed to evaluate RF Emissions
compliance with MPE limits, then all reasonable costs of such an evaluation or study shall be paid proportionately by
Licensee and all other licensees of the Tower within 30 days of Licensor's request therefor. If said study or a study
sponsored by any governmental agency indicates that RF Emissions at the Tower Facility do not comply with MPE
limits, then Licensee and Licensor, each for itself, shall immediately take any and all steps necessary to ensure that it is
individually in compliance with such limits, up to and including cessation of operation, until a maintenance program or
other mitigating measures can be implemented to comply with MPE and in addition, Licensor shall use commercially
reasonable efforts to cause all other licensees of the Tower to take similar steps necessary to ensure that they are
individually in compliance with such limits.
26. ENVIRONMENTAL. Licensee covenants that it will not use, store, dispose, or release any Hazardous Substances on
the Tower Facility in violation of Applicable Law.
27. SUBROGATION.
(a) Waiver. Licensor and Licensee waive all rights against each other and any of their respective consultants and
contractors, agents and employees, for Damages caused by perils to the extent covered by the proceeds of the
insurance provided herein, except such rights as they may have to the insurance proceeds. All insurance policies
required under this Agreement shall contain a waiver of subrogation provision under the terms of which the
insurance carrier of a Party waives all of such carrier's rights to proceed against the other Party. Licensee's
insurance policies shall provide such waivers of subrogation by endorsement. Licensee shall require by appropriate
agreements, written where legally required for validity, similar waivers from its contractors and subcontractors. A
waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise
have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly,
and whether or not the person or entity had an insurable interest in the property damaged.
(b) Mutual Release. Notwithstanding anything in this Agreement to the contrary, Licensor and Licensee each release
the other and its respective affiliates, employees and representatives from any Claims by them or any one claiming
through or under them by way of subrogation or otherwise for Damage to any person or to the Tower Facility and to
the fixtures, personal property, improvements and alterations in or on the Tower Facility that are caused by or result
from risks insured against under any insurance policy carried by each and required by this Agreement, provided
that such releases shall be effective only if and to the extent that the same do not diminish or adversely affect the
coverage under such insurance policies and only to the extent of the proceeds received from such policy.
28. GOVERNING LAW. This Agreement shall be governed by the laws of the state in which the Tower Facility is located. If
any provision of this Agreement is found invalid or unenforceable under judicial decree or decision, the remaining
provisions of this Agreement shall remain in full force and effect. Any approval, consent, decision, or election to be
made or given by a Party may be made or given in such Party's sole judgment and discretion, unless a different
standard (such as reasonableness or good faith) is provided for explicitly.
29. FINANCING AGREEMENT. Licensee may, upon written notice to Licensor, mortgage or grant a security interest in the
Approved Equipment to any such mortgagees or holders of security interests including their successors and assigns.
No such security interest shall extend to, affect or encumber in any way the interests or property of Licensor.
30. MISCELLANEOUS. Upon Licensor's written request, Licensee shall promptly furnish Licensor with complete and
accurate information in response to any reasonable request by Licensor for information about any of the Approved
Equipment or utilities utilized by Licensee at the Tower Facility or any of the channels and frequencies utilized by
Licensee thereon. In the event that this Agreement is executed by Licensor, its Affiliates or any trade name utilized by
Licensor or its Affiliates and such signatory does not hold the real Tower Facility or leasehold interest in the affected
Tower Facility the execution of this Agreement shall be deemed to have been properly executed by Licensor or
Licensor's Affiliate which properly holds such interest in the affected Tower Facility Upon the termination or expiration
of this Agreement, Licensee shall immediately upon the request of Licensor deliver a release of any instruments of
14
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
record evidencing such Agreement. Notwithstanding the expiration or earlier termination of this Agreement, sections 15,
16, 17, and 26 shall survive the expiration or earlier termination of the Agreement. No waiver of any of the provisions of
this Agreement shall constitute a waiver of any other provision herein (whether or not similar), nor shall such waiver
constitute a continuing waiver unless expressly agreed to in writing by the affected Party. This Agreement constitutes
the entire agreement of the Parties hereto concerning the subject matter herein and shall supersede all prior offers,
negotiations and agreements, whether written or oral. No revision of the Agreement shall be valid unless made in
writing and signed by authorized representatives of both Parties. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute but one instrument. The
Parties agree that a facsimile, scanned or electronically reproduced copy or image of this Agreement shall be deemed
an original and may be introduced or submitted in any action or proceeding as a competent evidence of the execution,
terms and existence of this Agreement notwithstanding the failure or inability to produce or tender an original, executed
counterpart of this Agreement and without the requirement that the unavailability of such original, executed counterpart
of this first be proven.
31. CONFIDENTIALITY. Neither Party shall use the other's name, service mark or trademark in any public
announcement or advertisement without the prior written consent of the other Party, which may be withheld in such
Party's sole and absolute discretion. Notwithstanding the foregoing, Licensee may make disclosures pursuant to this
Agreement if required by law or if it is a part of Licensee's reasonable course of business. The Receiving Party
agrees, unless required by a federal, state, or local law, the FCC, or the FAA not to make the Disclosing Party's
Confidential Information available to any third party or to use it for any purpose other than implementation of this
Agreement. Confidential Information may be shared with the Receiving Party's employees, contractors or agents.
32. LICENSEE'S REQUEST FOR RECONCILIATION. In the event Licensee has a reasonable basis for requesting a
reconciliation of the Monthly License Fee and upon Licensee's written request, Licensor shall reconcile Licensee's
account and shall provide Licensee with all supporting documentation that Licensor deems reasonable and non -
confidential in nature ( "Reconciliation "). The Reconciliation shall be done at no additional cost to Licensee. Both
Parties specifically acknowledge that this section 32 is subject to the "No Set -Off' section previously set forth in
section 5(f). All other terms and provisions set forth in this Agreement shall apply to this section 32. Both Parties agree
that a reasonable basis for requesting the Reconciliation shall include requests made pursuant to applicable law.
33. Neither party shall assume responsibility for any Damages caused by acts of God, including, but not limited to, wind,
lightning, rain, ice, earthquake, floods, or rising water, or by aircraft or vehicle damage, unforeseen soil conditions, acts of
third parties who are not employees of such party, strikes, lock -outs, labor troubles, inability to procure material, failure of
power, governmental actions or inaction, laws or regulations, riots, insurrection, war or other reasons beyond its control, or
any delay caused by the acts or omissions of the other party. In the event that either party shall be delayed, hindered in or
prevented from the performance of any act required hereunder by reason of any such acts of God described above, then the
performance of such act shall be excused for the period of delay and the period for performance of any such act shall be
extended for a period equivalent to the period required to perform as a result of such delay.
The offer of license expressed in this Agreement shall automatically expire and become void if two unaltered
counterparts of this Agreement, executed by Licensee, are not delivered to Licensor within 30 days of the Effective
Date.
ATTACHED EXHIBITS:
Exhibit A: List of Approved Equipment and location of the Licensed Space
Exhibit B: Site Drawing indicating the location of Ground Space for Licensee's equipment shelter or space in Licensor's
building (as applicable)
Exhibit C: As -Built Drawings or Construction Drawings to be attached within 45 days after Commencement Date in
accordance with Section 3
Appendix I: Definitions
Appendix II: Insurance
IC
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Exhibit A
List of Approved Equipment and location of the Licensed Space
Initials /
I C'M041028
KcN 02 24.09
EXHIBIT A
Cilyof Fon W nh
W-Iond I 6
GROUND SPACE REQUIREMENTS
PRIMARY CONTIGUOUS LEASE AREA DMENSIONS (LxWxH (Il))
36 x 12 x It) Sq. R 412
INSIDE ATC SHELL ER F— DIMENSIONSE.\Wx11(R)) N/A
CUS'FO ER SHELTER X DIMENSIONS (LxWxH(11)) 36, 12x 10
-
PADFORSHELTER I r X DIMENSIONS (I.xW(Il))
_
36x12 1FOOP
DIMENSIONS (LxW(Rp
3.x2
OUTDOOR CABINETS [ QUANTITY OF CABWE'fS N/A
DIMENSIONS
N/A
(1_xWx1I (Il))
I'AU FOR --
CAB WETS
DIMENSIONS (LxW (Il))
N/A
BACKUP POWER REQUIREMENTS
GENERATOR NOT RF 71RED1 1
Q1
SHARED GENERATOR PEAK
A I'C S1 W2ED GENERATOR USAGE N/A
(KW)
INSIDE CUSTOMER SHELTER
GENERATOR (lobe Iowled inside
P-toy leasing ores)
GFNF.RA'fOR (10 be I—t i outside _
primary leasmg area) I X
ADDITIONAL LEASE AREA REQUIRED
FOR BACKUP POWER (LxW (R))
I(1 x 4
MANUFACTURER Genewc
MAKE / MODEL,
N/A
CAPACITY (KW) 150
FUEL TYPE
Diesel
PAD FOR GENERATOR X
DIMENSIONS (LxW (11))
IO x 4
FUEL 1. x
DIMENSIONS (LxW (R))
10,41 TANK SIZE (gap l BDX
PAD FOR FUEL TANK IT
required)
DIMENSIONS (LxW (11))
N/A
SECONDARY GROUND LEASE AREA REQUIREMENTS
Will supplemenwr gromd space be —&d 10— iinwdale addiliorwl
egnipmeul? Y
;^
N j X
IF YES, ADDITIONAL LEASE AREA DIMENSIONS
(LxWxH (R)) N/A
Sq. R. N/A
ADDITIONAL EQUIPMENT:
N/A
DIMENSIONS i I BP) N/A
ADDITIONAL EQUIPMENT:
N/A
DIMENSIONS (LxWxH(R)) N/A
POWERITELCO REQUIREMENT'S
POWER PROVIDED BY:
UTILITY COMPANY DIRECT
�x ATC PROVIDED (
Avemil —wmhly pawerconsumplion(KWHlmils):
N/A
TPLCO/INTERCONNECf REQUIREMENT'S:
POTS F
T1 I X MICROWAVE
--o,—Cs
TRANSMITTER SPECIFICATIONS (& RECEIVER)
TRANSMITTER/RECEIVER TYPE
Transmill.x & Receiver
Tmlu1ni11er & Receiver
Toro —tler &Receiver
77ansni8er Receiver
Toot miner @ Receiver
N/A
QTY of-FRANSMITTERSfRECEIVERS
40
5
4
2
N/A
N/A
MANUFACTURER
Motorola
Motorola
Molorula
Aiwtel Lu—t
N/A
N/A
'TYPE & MODEL
GTR8000
Quonlar
Quunlro
MDR -i
N/A
N/A
TYPE or TECHNOLOGY
N/A
To. Way Radio
Two Way Radio
Microwmvo
N/A
N/A
TX POWER OUTPUT
too
too
150
N/A
N/A
N/A
-ERP (Walls)
1170
I(RI
150
N/A
N/A
N/A
ELECTRIC SERVICE. REQUIRED(A..ipJVolls)
200/24p
N/A
N/A
N/A
N/A
N/A
ANTENNA EQUIPMENT SPECIFICATIONS
EQUIPMENT TYPE:
Ormri
'1TA/ TMA
Dish- I IP
Dish- HP
Dish -1{P
Dl.h -I IP
PAD CENTER AGI, (R)
189
179 / 179 / 179
130 / 86 /86 / 130
160
171)
170
EQUIPMENT MOUNT HEIGHT (ill
179
179 / 179 / 179
130 /86 /86/130
160
170
170
EQUIPMENT MOUNT I "YPE
Side Amr
Leg
Leg
N/A
Leg
I.eg
EQUIPMENT MANUFACTURER
Sinclair
Bird(Moloroln)
RFS
RI'S
PIS
RES
EQUIPMENT MODEL. q
SC412- hiF2LOF
429- 83H411 -T
DAXe -59AC
DAX6 -5QBC
DAX6 -59BC
DAX6 -59BC
(F.QUIPMENI DIMENSIONS W
It feel oinches)
251 5"x 5'x 5"
Ix
1(3.4' x 14
79' T)'
T) x 79"
79" x 79"
EQUIPMENT WFIGIII pe"I m lhs l
7916.
20 Lb.
396 lbs
21W Ito
21-1 lhs
21)91hc
1 QI!IPMLNT Qt 'AN] I] Y
8
3
4
1
1
1
AZIMIr1I IS/ DIRF.C'I ION of RNIIA I IDN 1 Jcgnc.)
e 'll/ I %11/2411"
0— direcli —I
N/A
25/IN)/25/130
11.
lUy
t0
QTY m 1 -A('I I A/.1MIHl1 l SI:( ] OR. i c '4/4/4'
I / 1 / 1 / I / I / I / I / 1
3
N/A
N/A
N/A
N/A
I FRFQULNCY
866867 Mhz
N/A
64 Ghl.
6A Ch,
6 4 GI.
6 4 (it,
RX FREQUENCY
N/A
N/A
6.2 GU
6.2 Gi
6 2 G1v
6 2 Ghz
1. o4up t—1 n.mg nuhc�71: rl frynaicici'
No
No
No
N/A
N"
No
ANII NNn 0AIN
13 6 dh1
_
N/A
h
—11 1M1
4
1" Dt"
1
1161`11 I
ot,i
—
III 1 . it
3v Ohi
— -
III 1 it
\i .1 il:l I„i upiqiaeni ni _.hinn
�IN1,Y1 11 111113.IM',II
I INI 1) 11
l'iwx
(iw3
ITh goal
11NI X11 \MI .I1<xl /I
IS /8"
1me 7 /g' &laic 112"
EW6i
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Exhibit B
Site Drawing indicating the location of Ground Space for Licensee's equipment
shelter or space in Licensor's building (as applicable)
Licensee shall not commence installation until Licensor has approved in writing said drawing
and attached it hereto.
Initials
1 C'Mtt41028
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Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Exhibit C
As Built Drawings or Construction Drawings
To be attached hereto within 45 days after the Commencement Date.
1 C'M #41028
keN 02 24 09
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Appendix I
Defined Terms
Affiliate(s): Any corporation, partnership, limited liability company or other entity that (i) is controlled directly or indirectly
(through one or more subsidiaries) by Licensee , or (ii) is the successor or surviving entity by a merger or consolidation of
Licensee pursuant to Applicable Law, (iii) purchases all or substantially all of the assets of Licensee. For purposes of this
definition, "control' means the possession of the right through the ownership of 50% or more of the shares with voting rights to
effectively direct the business decisions of the subject entity.
Agreement: defined in the introductory paragraph.
Annual Escalator: defined in section IV on page 1.
Applicable Law: All applicable statutes, ordinances, laws, regulations and directives of any federal, state or local governmental
unit, authority or agency having jurisdiction over a Licensed Space or affecting the rights and obligations of Licensor or Licensee
under this Agreement, including without limitation, the Communications Act of 1934, as amended from time to time, FCC Rules
and Regulations, and the rules, regulations and written policies and decisions of the FAA.
Application: defined in section IV on page 1.
Application Fee: defined in section IV on page 1.
Approved Equipment: the communications system, including antennas, radio equipment, cabling and conduits, shelter and /or
cabinets and other personal property owned or operated by Licensee at the Licensed Space, as defined in Exhibit A or B to this
Agreement.
Business Day: a day other than a Saturday, Sunday or legal holiday for commercial banks under the laws of the United States
or the Commonwealth of Massachusetts.
Claims: demands, claims, suits, actions, proceedings or investigations brought against a person by an unrelated or unaffiliated
Person.
Commencement Date: defined in section IV on page 1.
Common Expenses: defined in section 7.
Connection Fee: defined in section IV on page 1.
Construction Drawings: defined in section 3.
Damages: debts, liabilities, obligations, losses, damages, excluding consequential or punitive damages, costs and expenses,
interest (including, without limitation, prejudgment interest), penalties, actual legal fees, actual court costs, actual disbursements
and actual costs of investigations, deficiencies, levies, duties and imposts so long as the actual costs for legal fees, court costs,
investigation, deficiencies, levies and imposts are awarded by a court of competent jurisdiction.
Easement: defined in section 2.
Effective Date: defined in the introductory paragraph.
FAA: the United States Federal Aviation Administration or any successor federal agency established for the same or similar
purpose.
FCC: the United States Federal Communications Commission or any successor federal agency established for the same or
similar purpose.
FCC Rules and Regulations: All of the rules, regulations, public guidance, written policies and decisions governing
telecommunications generally and wireless telecommunications specifically as promulgated and administered by the FCC,
which on the Effective Date includes, but is not limited to, those administered by the Wireless Telecommunications Bureau of
the FCC and more specifically referenced as the Code of Federal Regulations, title 47, parts 0 through 101, as amended.
Ground Lease: defined in section 20.
Ground Space: The portion of the Tower Facility licensed for use by Licensee to locate a portion of the Approved Equipment
thereon, in the square footage amount depicted on exhibit B of this Agreement. In no event shall the Ground Space include the
air space or rights above the Approved Equipment located in the Ground Space.
I:CMk41028
Key 02 24 09
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Hazardous Substances: Any hazardous material or substance which is or becomes defined as a hazardous substance,
pollutant or contaminant subject to reporting, investigation or remediation pursuant to Applicable Law; any substance which is or
becomes regulated by any federal, state or local governmental authority; and any oil, petroleum products and their by- products.
Holdover Fee: defined in subsection 6(c).
Indemnified Party: any person entitled to Indemnification under section 15 hereof.
Initial Term: defined in subsection 6(a).
Interference: defined in subsection 11(a)(i).
Labeling Fee: defined in section 9.
Licensed Frequencies: defined in subsection 11(a)(ii).
Licensed Space: Location of the Approved Equipment on the Tower and at the Ground Space as more specifically described
in Exhibits A and B attached hereto.
Licensed User: defined in subsection 11(a)(iii).
Licensee: defined in the introductory paragraph.
Licensor: defined in the introductory paragraph.
Monthly License Fee: defined in subsection 5(a).
MPE: defined in section 25.
Notice Address: defined in section 18.
NTP (Notice to Proceed): Written notice from Licensor to Licensee acknowledging that all required documentation for the
construction and installation of the Approved Equipment has been received and approved by Licensor and Licensee is
authorized to commence its installation of the Approved Equipment at the Licensed Space, as more particularly set forth in
section 10(a) of this Agreement.
Party(ies): Licensor or Licensee.
Permitted Affiliate: defined in section 19.
Permitted Frequencies: defined in section III on page 1.
Priority User: defined in subsection 11(a)(iv).
Relocation Application Fee: defined in section IV on page 1.
Remittance Address: defined in section II of page 1.
Renewal Term(s): defined in subsection 6(b).
RF Emissions: defined in section 25.
Site Inspection Fee: defined in section IV on page 1.
SSIS: defined in subsection 10(b).
SSIS Fee: defined in subsection 10(b).
Structural Analysis Fee: defined in subsection 10(b).
Subsequent User: defined in subsection 11 (a)(v).
Term: Initial Term and each Renewal Term which is effected pursuant to section 6 of this Agreement.
Tower: A communications or broadcast tower owned and operated by Licensor and located at the Tower Facility.
Tower Facility: Certain real property owned, leased, subleased, licensed or managed by Licensor shown on page 1 of this
Agreement, on which a Tower owned, leased, licensed or managed by Licensor is located.
Unlicensed Frequencies: defined in subsection 11(a)(vi).
Unlicensed User: defined in subsection 11(a)(vii).
Utility Fee: defined in section IV on page 1.
I_C'M #41028
Re% 02 24 09
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Work: all work relating to the construction, installation, relocation and reconfiguration of Licensee's Approved Equipment on the
Tower Facility, including without limitation, construction management, construction of an equipment pad, installation or
modification of lines, antennas, shelters and equipment cabinets.
I c %1 #41029
Ke. 02 24 09
Licensor Site Name / Number: Westland TX 6, TX /310091
Licensee Site Name / Number: N /A/N /A
Appendix II
Insurance
A. LICENSOR shall maintain in full force during the Term of this Agreement the following insurance:
Worker's Compensation Insurance with statutory limits in accordance with all applicable state,
federal and maritime laws, and Employers' Liability Insurance with minimum limits of $500,000.00
per accident/occurrence, or in accordance with all applicable state, federal and maritime laws.
2. Commercial General Liability Insurance (Bodily Injury and Tower Facility Damage), the limits of
liability of which shall not be less than $1,000,000.00 per occurrence.
3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00).
The above insurance shall provide that LICENSEE will receive not less than 30 days written notice
prior to any cancellation of, or material change in coverage. The insurance specified in this Item A
shall contain a waiver of subrogation against LICENSEE and shall name LICENSEE as an
additional insured, and shall be primary over any insurance coverage in favor of LICENSEE but
only with respect to and to the extent of the insured liabilities assumed by LICENSOR under this
Agreement and shall contain a standard cross - liability endorsement.
B. LICENSEE shall maintain in full force during the Term of this Agreement and shall cause all contractors or
subcontractors performing Work on any Licensed Space prior to the commencement of any such Work on
behalf of Licensee to maintain the following insurance:
Worker's Compensation Insurance with statutory limits in accordance with all applicable state,
federal and maritime laws, and Employers' Liability Insurance with minimum limits of $500,000.00
per accident/occurrence, or in accordance with all applicable state, federal and maritime laws.
Commercial General Liability Insurance (Bodily Injury and Tower Facility Damage), the limits of
liability of which shall not be less than $1,000,000.00 per occurrence.
3. An umbrella policy of not less than Five Million Dollars ($5,000,000.00).
The above insurance shall provide that LICENSOR will receive not less than 30 days written notice
prior to any cancellation of, or material change in coverage. The insurance specified in this Item B
shall contain a waiver of subrogation against LICENSOR and shall name LICENSOR as additional
insured, and shall be primary over any insurance coverage in favor of LICENSOR but only with
respect to and to the extent of the insured liabilities assumed by LICENSEE under this Agreement
and shall contain a standard cross - liability endorsement.
C. Notwithstanding the foregoing insurance requirements, (a) the insolvency, bankruptcy, or failure of any
insurance company carrying insurance for either Party, or failure of any such insurance company to pay
Claims accruing, shall not be held to waive any of the provisions of this Agreement or relieve either Party
from any obligations under this Agreement, and (b) Licensor reserves the right, from time to time, to
increase the required liability limits described above in Items A and /or B in accordance with then - current
customary insurance requirements in the tower industry nationally.
I CM441028
RCN 02 24 09
FORTWOR'11 H
ATTACHMENT A
TO APPENDIX II
RE: Proof /Documentation of Insurance
City of Fort Worth's Self- funded Insurance Program
To Whom It May Concern:
Please accept this correspondence pursuant to your request for documentation
of the City of Fort Worth's in lieu of a certificate of commercial insurance. The
City of Fort Worth is basically a self- funded entity subject to statutory tort laws.
The City does not maintain a commercial policy of general liability insurance
and /or auto liability insurance. Damage for which the City of Fort Worth would
ultimately be found liable would be paid directly by the City of Fort Worth and not
by a commercial insurance company. City owned property is covered under the
City. of Fort Worth Fire and Extended coverage program by a commercial
insurance policy. Statutory workers' compensation insurance, coverage is self -
funded to a $750,000.00 retention ' limit per incident over which commercial
coverage responds with no upper cap; and, employer's liability coverage is
maintained at the $1,000,000.00 policy limit.
In the event there are any questions regarding the City of Fort Worth's insurance
program, or if I may be of additional assistance, please contact me at the
address provided, or phone direct to 817 - 392 -7761 or email,
sue. haupt(aD-fortworthgov.org.
Thank you for your time and attention. Both are appreciated. Should you require
any further information, please feel free to contact this office. On behalf of the
City of Fort Worth, we look forward to a continued business relationship.
Sincerely,
Sue Haupt
Risk Manager
FINANCIAL MANAGEMENT SERVICES DEPARTMENT
RISK MANAGEMENT DIVISION
ME CITY OF FORT WORTH* 1000 THROCKMORTON STREET* FORT WORTH. TEXAS 76102
(817) 392 -8492 * (817) 392 -5874
M &C Review
COUNCIL; ACTIONr Approved, on 4/10/Z01X
DATE: 4/10/2012 REFERENCE NO.:
CODE:
SUBJECT:
C TYPE:
**C -25546 LOG NAME: 04AMERICAN TOWER
ASSET
CONSENT PUBLIC HEARING: NO
Authorize Execution of a License Agreement with American Tower Asset Sub, LLC, in the Amount of $42,000.00
Annually for the Lease of Space at the Westland 6 Radio Tower Site (COUNCIL DISTRICT 3)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a License Agreement with American Tower Asset Sub, LLC, in the
amount of $42,000.00 annually for the lease of space at the Westland 6 Radio Tower Site as part of the Public Safety Radio
Upgrade Project.
DISCUSSION:
On June 14, 2011, (M &C G- 17303) the City Council authorized execution of a system purchase Agreement with Motorola
Solutions, Inc., for the upgrade of the City's public safety communications system. The upgrade included the expansion of the radio
system's coverage area to improve deficiencies in west Fort Worth as well as encompassing newly annexed areas in far west
portions of the City.
The selection of the Westland 6 Radio Tower, owned by American Tower Asset Sub, LLC (ATC), is based primarily on its location
and the improvements to be realized to the coverage area of the City's radio systems. Staff also reviewed the cost of constructing a
radio tower in the same vicinity, but determined that the leasing of space on an existing tower was more cost - effective for the City in
this particular case.
Execution of this license Agreement will allow the City to partially implement the upgraded radio system later this year to provide
improved coverage in west Fort Worth for Police and Fire. Full implementation, including the migration of all Fort Worth and
external agency users is scheduled for completion by December 2014.
RENEWALS - This license Agreement may be renewed annually at the City's option for up to fourteen one year terms to align with
the anticipated life of the radio communications system. Each annual renewal is subject to an increase not to exceed four percent
This action does not require specific City Council approval provided that sufficient funds have been appropriated during the renewal
terms.
M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the IT Solutions Department and
approved by the M/WBE Office because the purchase of goods and services is from sources where subcontracting or supplier
opportunities are negligible.
Westland 6 Radio Tower site is located in COUNCIL DISTRICT 3.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of
the Information Systems Fund
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City Council Agenda.
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COUNCIL; ACTIONr Approved, on 4/10/Z01X
DATE: 4/10/2012 REFERENCE NO.:
CODE:
SUBJECT:
C TYPE:
**C -25546 LOG NAME: 04AMERICAN TOWER
ASSET
CONSENT PUBLIC HEARING: NO
Authorize Execution of a License Agreement with American Tower Asset Sub, LLC, in the Amount of $42,000.00
Annually for the Lease of Space at the Westland 6 Radio Tower Site (COUNCIL DISTRICT 3)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a License Agreement with American Tower Asset Sub, LLC, in the
amount of $42,000.00 annually for the lease of space at the Westland 6 Radio Tower Site as part of the Public Safety Radio
Upgrade Project.
DISCUSSION:
On June 14, 2011, (M &C G- 17303) the City Council authorized execution of a system purchase Agreement with Motorola
Solutions, Inc., for the upgrade of the City's public safety communications system. The upgrade included the expansion of the radio
system's coverage area to improve deficiencies in west Fort Worth as well as encompassing newly annexed areas in far west
portions of the City.
The selection of the Westland 6 Radio Tower, owned by American Tower Asset Sub, LLC (ATC), is based primarily on its location
and the improvements to be realized to the coverage area of the City's radio systems. Staff also reviewed the cost of constructing a
radio tower in the same vicinity, but determined that the leasing of space on an existing tower was more cost - effective for the City in
this particular case.
Execution of this license Agreement will allow the City to partially implement the upgraded radio system later this year to provide
improved coverage in west Fort Worth for Police and Fire. Full implementation, including the migration of all Fort Worth and
external agency users is scheduled for completion by December 2014.
RENEWALS - This license Agreement may be renewed annually at the City's option for up to fourteen one year terms to align with
the anticipated life of the radio communications system. Each annual renewal is subject to an increase not to exceed four percent
This action does not require specific City Council approval provided that sufficient funds have been appropriated during the renewal
terms.
M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the IT Solutions Department and
approved by the M/WBE Office because the purchase of goods and services is from sources where subcontracting or supplier
opportunities are negligible.
Westland 6 Radio Tower site is located in COUNCIL DISTRICT 3.
FISCAL INFORMATION /CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of
the Information Systems Fund
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