HomeMy WebLinkAboutContract 51173 CITY SECRETARY
CONTRACT NO. I�3
ASSIGNMENT OF AGREEMENTS
This Assignment of Agreements(this "Assignment") is entered into as of the date set forth
below between Aqua Metric Sales Company, a registered d/b/a of Thirkettle Corporation, a
California corporation ("Assignor"), and the City of Fort Worth ("Assignee") (Assignor and
Assignee are sometimes referred to herein individually as a "Party" and collectively as the
"Parties'').
RECITALS:
A. Assignor, as "Consultant" or "Contractor", and Assignee, as "City" or "Client",
entered into that certain Professional Services Agreement (the "PSA'') on or about October 101
,
2016.
B. Assignor has entered into one or more agreements with third parties in connection
with its performance of the services set forth in the PSA (the "Agreements'', as more specifically
set forth on Exhibit "A", attached hereto and incorporated herein).
C. Concurrently with the execution of this Assignment, Assignor has conveyed the
Agreements to Assignee, and in connection with such conveyance, Assignor has agreed to assign
the Agreements to Assignee.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration in hand paid by Assignee to Assignor,the receipt and sufficiency of which are hereby
acknowledged and confessed by Assignor, Assignor and Assignee hereby agree as follows:
1. Assignor's Assignment. Assignor does hereby ASSIGN, TRANSFER, SET
OVER and DELIVER the Agreements to Assignee, its successors and assigns; TO HAVE AND
TO HOLD the Agreement attached hereto, together with all and singular the rights and
appurtenances thereto in anywise belonging, unto Assignee, its successors and assigns forever;
and Assignor does hereby bind itself, its successors and assigns forever, so that neither Assignor,
nor Assignor's successors or assigns, shall at any time hereafter have, claim or demand any right
or title to the Agreements, or any part thereof.
2. Further Assurances. Assignor hereby agrees to perform, execute and/or deliver
or cause to be performed, executed and/or delivered any and all such further acts and assurances
as Assignee may reasonably require to perfect Assignee's interest in the Agreements.
3. Assignee's Duty. It is specifically agreed that Assignor shall not be responsible
for the discharge and performance of any duties or obligations to be performed and/or discharged
in connection with the Agreements after the effective date hereof. By acceptance of this
nment and by execution hereof, Assignee accepts and agrees to perform all of the terms,
Pa► p and conditions in connection with the Agreements required to be performed thereunder,
fm er the effective date hereof, but not prior thereto.
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4. Assignor's Indemnity. It is further agreed that Assignee shall not be responsible
for the discharge and performance of any duties or obligations required to be performed and/or
discharged in connection with the Agreements prior to the effective date hereof. In such regard
Assignor agrees to indemnify and hold harmless Assignee, inclusive of attorneys' fees and court
costs, from and against losses incurred by Assignee as a result of claims brought against Assignee,
as Assignor's successor in interest to the Agreements,relating to causes of action arising from any
failure by Assignor to perform or discharge the obligations of the landlord under the Agreements
prior to the effective date hereof.
5. Binding Agreement. This Assignment is binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to
become effective the I" day of September 2018.
ASSIGNEE: ASSIGNOR:
ByY OF 5F�T11 C��� AQUA METRIC SMSTOMPANY` / �
Jesus J. Chapa Name: Michael CartwrightI'-"
Assistant City Manager Title: Vice��sid nit of Operations
Date: o?-�-1 Date: I
Contract Compliance Manager
By signing, I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensu ' g all perfo ance and repforting requirements.
Name: M C)lc•1 C I V/�C
Title: 5.x,1 j d� ✓� LSS i Gl"��.-� n`j}� e-f-
APPRO D AS T ORM AND LEGALITY
Jessica Sa svang
Senior A i ant City Attorney 41
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DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
LICENSE AGREEMENT
ATC Contract No:
This LICENSE AGREEMENT ("Agreement") is entered into as of the latter signature date hereof
("Effective Date")by and between American Tower Asset Sub II,LLC,a Delaware limited liability company,
with a place of business at 10 Presidential Way, Woburn, MA 01801 ("Licensor") and Aqua Metric Sales
Company a registered d/b/a of Thirkettle Corporation, a California corporation, with a place of business at
4050 Flat Rock Drive, Riverside, CA 92505 ("Licensee").
I. TOWER FACILITY INFORMATION:
Site Name: 135 W/Everyman Pkwy
Site Number: 309571
Address and/or location of Tower Facility: 9725 South Freeway, Fort Worth, TX 76140-5340
Tower Facility Coordinates: Lat. 32° 36'46.5" N32.61291667 Long. 97° 19' 1.2"1W-97.32000000
II. NOTICE&EMERGENCY CONTACTS:
• Licensee's local emergency contact(name and number): Paul Morrison (469) 867-9351.
• Licensor's local emergency contact: Network Operations Communications Center(800) 830-3365.
• Notices to Licensee shall be sent to Licensee's address above to the attention of Michael Cartwright
6700 Guada Coma Drive, Schertz, TX 78154 with additional notice to be sent to 200 Texas Street,
Fort Worth, TX 76102 to the attention of Kara Shuror, Interim Director of Water Department.
• Notices to Licensor shall be sent to Licensor's 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: Nine Hundred Eighty and 00/100 Dollars ($980.00), 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).
Annual Escalator: Three percent(3%).
Application Fee: $0.00.
Relocation Application Fee: $0.00.
Site Inspection Fee: $0.00.
Initial Term: A period of ten (10) years beginning on the Commencement Date. The "Commencement
Date" shall be the earlier of: (i) the commencement of installation of Licensee's Equipment at the Tower
Facility or (ii) the date on which Licensor provides Licensee with notice that the modifications to Tower
Facility are complete pursuant to Other Provision (K).
Page 1 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
Renewal Terms: 5 additional periods of 5 years each.
Connection Fee (as described in Subsection 5(b)): N/A.
Electricity for operation of Approved Equipment is to be provided by(check one):
❑ Licensor, with the cost of such electricity to be paid by Licensee at the initial rate of$ per month
("Utility Fee") subject to adjustment pursuant to Subsection 5(b), OR
® Licensee, at its sole expense.
V. TERMS&CONDITIONS:
The attached terms and conditions are incorporated herein by this reference.
VI. OTHER PROVISIONS:
Other provisions: (check one): ❑ None ® As listed below
A. Licensee shall have the right, without the consent of Licensor, to assign this Agreement to
the City of Fort Worth, a Texas municipality(a"Permitted Assignment").Any assignment of this Agreement
permitted without Licensor's consent shall be effective as of the date Licensee shall provide notice thereof
to Licensor together with a copy of an assignment and assumption document executed by assignee, IRS
Form W-9, and all other paperwork Licensor requires to set up the assignee in Licensor's billing system.
B. So long as(but only so long as)the City of Fort Worth shall be the Licensee hereunder, all
sections and paragraphs found in Appendix III of this Agreement shall replace and control the
corresponding sections found in the Agreement. In the event of a discrepancy between the body of the
Agreement and Appendix III, Appendix III shall control. If the City of Fort Worth is not the Licensee under
this Agreement,Appendix III shall have no effect on the terms and conditions of this Agreement.
C. It is understood among the Parties that Appendix IV to this Agreement shall only apply and
have force under this Agreement so long as, (but only so long as), the City of Fort Worth is the Licensee
under this Agreement. Further description of the applicability of Appendix IV under this Agreement can be
found in Section 38 of Appendix III.
D. Notwithstanding anything to the contrary contained in this Agreement, the Licensee shall
have eighteen (18) months from the Commencement Date to assess whether the Tower Facility meets its
technical and operational needs (the "Deployment Test Period"). In the event the Licensee determines at
any time during the first sixteen (16) months of the Deployment Test Period that the Tower Facility does
not meet its technical and operational needs, Licensee may provide Licensor with written notice of its
intention to terminate the Agreement as of the completion of the Deployment Test Period without further
liability. In no event may Licensee terminate the Agreement prior to the completion of the Deployment Test
Period and any notice of termination given by the Licensee after the first sixteen (16) months of the
Deployment Test Period shall be deemed to be given pursuant to Section 6(b)of the Agreement.
E. 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.
Page 2 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
F. 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 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.
G. WAIVER OF TEXAS DECEPTIVE TRADE PRACTICES ACT. LICENSEE SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT IT HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND
BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE MERITS AND RISKS OF ITS
TRANSACTION WITH LICENSOR, AND THAT IT IS NOT IN A SIGNIFICANTLY DISPARATE
BARGAINING POSITION WITH LICENSOR. LICENSEE HEREBY WAIVES ALL ITS RIGHTS UNDER
THE TEXAS DECEPTIVE TRADE PRACTICES — CONSUMER PROTECTION ACT, SECTION 741 ET.
SEQ. OF THE TEXAS BUSINESS AND COMMERCE CODE (THE "DPTA"), A LAW THAT GIVES
CONSUMERS SPECIAL RIGHTS AND PROTECTIONS.AFTER CONSULTATION WITH AN ATTORNEY
OF LICENSEE'S OWN SELECTION, LICENSEE VOLUNTARILY CONSENTS TO THIS WAIVER.
H. As of the Effective Date of this Agreement, the Tower Facility is not subject to BLM or
USFS requirements as described in Section 5(d) of this Agreement.
I. Licensor and Licensee agree and acknowledge that Licensee shall be responsible for
painting the transmission lines to match the colors of the tower.
J. Licensor and Licensee agree and acknowledge that this Agreement is contingent upon
SBC Communications, Inc. or its affiliates Right of First Refusal.
K. Licensor and Licensee agree and acknowledge that Licensee shall pay to Licensor within
thirty(30)days of receipt of an invoice a"Capital Contribution Fee" in the amount of Twenty Thousand and
00/100 Dollars ($20,000.00)which fee represents Licensee's contribution for costs associated with tower
modifications required to accommodate the installation of Licensee's Equipment.
[Signatures appear on next page]
Page 3 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
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 day and year written below; provided, however,
that this Agreement shall not become effective as to either Party until executed by both Parties.
LICENSOR LICENSEE
American Tower Asset Sub II, LLC, a Delaware Aqua Metric Sales Company a registered d/b/a
limited liab DQQQY of Thirke q tM ,n, a rCt. rnia corporation
:
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1450-rgaret Robinson Michael Cartwright
Print Name: Print Name:
Sr Couwnsel US Tower. Operations
Its: Its:
January 9, 2018 January 3, 2018
Date: Date:
Page 4 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
TERMS AND CONDITIONS
1. DEFINITIONS.
Capitalized terms defined in the body of this Agreement are indexed by location in Appendix I attached
hereto. Capitalized terms used in Agreement but not defined herein are defined in Appendix I.
2. 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 thirty (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 forty-five(45)days following the Commencement Date, 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 the Construction Drawings as Exhibit C hereto. 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 Exhibits 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
Page 5 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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 any 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). Licensee's permitted use with respect to the Licensed Space shall be limited solely to that
enumerated in this Section, and, except pursuant to a 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.
5. 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 thirty (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
applicable 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 thirty (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 Monthly License
Fee or other payments received pursuant to this Agreement. 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 Monthly License Fee or any other payment then due and payable
Page 6 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
any associated sales, use or other tax, which shall be paid by Licensee at the same time and in the same
manner as the Monthly 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 ("BLM") 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 thirty (30) days of Licensor's request for such
reimbursement.
(e) 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 oranywhere
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 Monthly
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.
(f) 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.
(g) No Set-Off. All payments due under this Agreement shall be due without set-off, notice,
counterclaim or demand from Licensor to Licensee.
(h) 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.
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
in violation of the terms of this Agreement. Provided that the foregoing conditions are satisfied, this
Agreement shall automatically renew, under the terms stated in this Agreement, for each successive
Renewal Term unless either Party notifies the other in writing of its intention not to renew this Agreement
at least ninety(90)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 Term 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 one hundred
twenty-five percent (125°/x) of the Monthly License Fee in effect for the last month of the Term prior to the
commencement of such month-to-month term ("Holdover Fee"), such Holdover Fee to escalate annually
on the anniversary of the Commencement Date by an amount equal to six percent (6%) of the Holdover
Fee in effect for the month immediately prior to the month in which such escalation takes place, and(ii)the
month-to-month extension shall be terminable upon fifteen (15) days' prior written notice from either
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DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
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. In addition to the
monthly license fee payable to Licensor in the event of an extension under this Subsection 6(c), to the
extent permitted by applicable law, Licensee agrees to indemnify and hold Licensor harmless from any
Damages arising out of or in connection with the extension, the operation of the Approved Equipment at
the Tower Facility and Licensee's failure to perform all of its obligations under this Agreement at the
termination or earlier expiration of this Agreement. If Licensee is unable,due to applicable law, to indemnify
Licensor, Licensee agrees to save harmless Licensor from any Damages arising out of or in connection
with the extension, the operation of the Approved Equipment at the Tower Facility and Licensee's failure to
perform all of its obligations under this Agreement at the termination or earlier expiration of this Agreement.
7. 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. 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
thirty(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. 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 ten (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 five hundred dollars
($500.00)("Labeling Fee")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
Page 8 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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.
(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 contractor, subcontractor, or third-party, other than Licensor but including Licensee,
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 Subsection
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 Subsection 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, with the exception of the initial installation, 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 thirty (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 subsequent construction or
installation on the Tower Facility after the initial installation 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 Subsection 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.
Page 9 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
(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
on, modify and/or replace equipment within Licensee's shelter without the need to submit an application to
Licensor. Both Parties agree that Licensee shall follow Licensor's application process for all other future
modifications to Licensee's Approved Equipment. Licensee shall have the right to remove all Approved
Equipment at Licensee's sole expense on or before the expiration or earlier termination of the License
provided Licensee repairs any damage to the Tower Facility or the Tower caused by such removal. Within
thirty(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 thirty(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.
Page 10 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
(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 ten (10) business days of Licensor's 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 the application of FCC Rules
and Regulations and other Applicable Law not resolve any claims of Interference consistent with
Subsections 11(e), 11(f) and 11(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 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, take
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
Page 11 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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 thirty(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, with the exception of ceasing Subsequent User's operations.
(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 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 in the manner
prescribed 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
Page 12 of 34
DocuSign Envelope ID:CC3E1935-366342A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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 thirty
(30)calendar days of the receipt of such complaint. Licensee's failure to eliminate such interference within
such thirty(30)day period shall constitute a default under this Agreement and Licensor shall have the right
to eliminate such interference at Licensee's expense. Licensee further agrees, to the extent permitted by
applicable law, to indemnify Licensor in the event that Licensee's failure to comply with the FCC Rules and
Regulations prior to installation/modification of the Approved Equipment results in any administrative
investigation, proceeding or adjudication with respect to Licensor. If Licensee is unable, due to applicable
law, to indemnify Licensor, Licensee agrees to save harmless Licensor in the event that Licensee's failure
to comply with the FCC Rules and Regulations prior to installation/modification of the Approved Equipment
results in any administrative investigation, proceeding or adjudication with respect to Licensor.
(i) Government Approvals. Prior to installation of the Approved Equipment, in the event that
any government permit, approval or authorization required for Licensee's use or operation of Approved
Equipment is rejected or terminated through no act or omission of the Licensee, either in whole or in part,
this Agreement shall be deemed terminated immediately upon written notice to Licensor. In the event of
such termination, neither party shall have any obligations under this Agreement, except for those
indemnities provided in Section 15 of this Agreement.
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 thirty (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
Page 13 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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 6 months of the date of casualty,
provided that such 6 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 sixty(60)or more consecutive days, then Licensee, upon thirty(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 thirty
(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. Upon
such relocation of the Tower or improvements, the Licensed Space shall be modified to include 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.
Licensee agrees not to make a claim to the condemning authority for any condemnation award to the extent
such claim shall diminish or affect the award made to Licensor with regard to such condemnation; provided
Licensee may seek its own condemnation award separate and apart from any such condemnation award
made to Licensor.
(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 Tower Facility 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. Subject to the mutual waiver of subrogation set forth in Section 27,
and to the extent permitted by applicable law, Licensee and Licensor each indemnifies the other against
and holds the other harmless from any and all costs, demands, Damages, suits, expenses, or causes of
action (including reasonable attorneys fees and court costs) which arise out of the use and/or occupancy
of the Licensed Space by the Indemnifying Party. This indemnity does not apply to any Claims to the extent
arising from the gross negligence or intentional misconduct of the Indemnified Party.
Page 14 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
(b) Limits on Indemnification. Neither Party shall be responsible or liable to any of the
foregoing Indemnified Parties for any Damages arising from any claim to the extent attributable to any acts
or omissions of other licensees or users occupying the Tower Facility or for any structural or power failures
or destruction or damage to the Tower Facility except to the extent caused by the sole,joint, or concurrent
gross negligence or willful misconduct of such Party.
(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.
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. If Licensor shall fail to perform or observe any term, condition, covenant or obligation
required to be performed or observed by it under this Agreement or is charged with an indemnity obligation
hereunder, and if Licensee shall, as a consequence thereof, recover a money judgment against Licensor
(whether compensatory or punitive in nature), Licensee agrees that it shall look solely to Licensor's right,
title and interest in and to the Tower Facility and the Tower for the collection of such judgment,and Licensee
further agrees that no other assets of Licensor shall be subject to levy, execution or other process for the
satisfaction of Licensee's judgment, and that Licensor shall not be personally liable for any deficiency.
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 LLC, 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.
Except in the case of a Permitted Assignment, as defined under Other Provisions, paragraph A, Licensee
may not, directly or indirectly, assign this Agreement as a whole, or any portion of Licensee's rights, title
and interests hereunder without Licensor's prior written consent. In no event may Licensee sublet,
Page 15 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
sublease, or permit any use of the Tower Facility or Licensed Space by any other 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. Unless conducting a Permitted Assignment, Licensee shall pay Licensor a fee of$500.00(which
fee shall increase annually on each anniversary of the Commencement Date by a percentage rate increase
equal to the Annual Escalator) in each instance in which Licensee requests Licensor to consent to an
assignment of this Agreement or in which Licensee seeks an estoppel certificate, non-disturbance
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 among other things, (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, and (ii)
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 ten (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 ten (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 thirty (30) days of
receipt by Licensee of written notice from Licensor, or its designee, of the existence of such a default;
except such thirty (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 thirty (30) day cure period and
Page 16 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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) intentionally deleted; (v) 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 sixty (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; (vi)this Agreement or Licensee's interest herein
or Licensee's interest in the Tower Facility are executed upon or attached; (vii) 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 (viii) the imposition of any lien on the Approved Equipment except as may be expressly
authorized by this Agreement,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
ten (10) Business Days of written notice from Licensor to Licensee.
(b) 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 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 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, 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 this
Agreement by Licensee, discounted by an annual percentage rate equal to five percent (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 thirty (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 ten percent (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 ten percent (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 thirty (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 SetOff' section previously set forth in
section 5(f). All other terms and provisions set forth in this Agreement shall apply to this section 22.
23. GOVERNMENTAL APPROVALS; PERMITS.
Page 17 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
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 existing 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 Monthly 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) Relocation of Approved Equipment. 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 ninety(90)days'prior written notice to Licensee, Licensor
may, in its sole discretion either(i) remove the Tower 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 ninety
(90)day notice period, then Licensee or Licensor may elect to terminate this Agreement.
25. EMISSIONS.
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
Page 18 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
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 thirty(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. Licensee agrees, to the extent permitted by applicable law, to
indemnify and save harmless Licensor against any and all Claims, liabilities, causes of action, Damages,
orders,judgments, and clean-up costs arising from Licensee's breach of any of the covenants contained in
this Section 26. The obligations of Licensee to indemnify Licensor pursuant to this Section 26 shall survive
the termination or expiration of this Agreement. If Licensee is unable, due to applicable law, to indemnify
Licensor, Licensee agrees to save Licensor harmless against any and all Claims, liabilities, causes of
action, Damages, orders, judgments, and clean-up costs arising from Licensee's breach of any of the
covenants contained in this Section 26.
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 and the rights and obligations of the parties hereto shall be governed by, and construed in
accordance with the laws of the United States and state of Texas, exclusive of conflicts of law's provisions.
Venue for any suit brought under this Agreement shall be in a court of competent jurisdiction in Tarrant
County, Texas. 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.
Page 19 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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 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 this 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 this
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 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. FISCAL FUNDING LIMITATION.
Licensor acknowledges and understands Licensee is entering into this Agreement for the benefit of the City
of Fort Worth and plans to, if possible, assign this Agreement to the City of Fort Worth. As such, in the
event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any
means whatsoever in any fiscal period for payments due under this Agreement, then the Licensee will
immediately notify Licensor of such occurrence and this Agreement shall be terminated on the last day of
the fiscal period for which appropriations were received without penalty or expense to the Licensee of any
kind whatsoever, except to the portions of annual payments herein agreed upon for which funds shall have
been appropriated.
Page 20 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
33. RIGHT TO AUDIT. If an audit request is made by the City of Fort Worth, and only by the City of
Fort Worth, then Licensee shall have access to and the right to examine any directly pertinent books,
documents, papers and records of Licensor involving transactions relating to this Agreement. Licensor
agrees that Licensee shall have access during normal working hours to all necessary Licensor facilities and
shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the
provisions of this section. The Licensee shall give Licensor reasonable advance notice of intended audits.
With the exception of the City of Fort Worth, Licensor shall have no obligation to share any information
regarding this Agreement based on third-party requests for audit or agreement information, unless required
by law.
Licensor further agrees to include in all its subcontracts hereunder a provision to the effect that the
subcontractor agrees that the Licensee shall, until the expiration of three(3)years after final payment under
the subcontract, have access to and the right to examine any directly pertinent books, documents, papers
and records of such subcontractor, involving transactions to the subcontract, and further, that Licensee
shall have access during normal working hours to all subcontractor facilities, and shall be provided
adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this
article. Licensee shall give subcontractor reasonable advance notice of intended audits.
Licensor further agrees to accept the authority of the State of Texas Auditor's office authority to conduct
audits and investigations under the State Water Infrastructure Reserve Fund Texas ("SWIRFT') in
connection with state funds received pursuant to this Agreement. The Licensor shall comply with the
directives from AM, the Licensee and the Texas State Auditor and shall cooperate in any such audit or
investigation. The Consultant agrees to provide the Texas State Auditor with access to any information AM,
the Licensee or Texas State Auditor considers relevant to the audit or investigation. The Consultant agrees
to include the same provision in any contract or subcontract used in connection with this Agreement.
The submission of this Agreement for examination and negotiation does not constitute an offer to
license,or a reservation of,or option for, any portion of the Tower Facility, and Licensee shall have
no right to use or occupy any portion of the Tower Facility or any appurtenant easement area
hereunder until the execution and delivery of this Agreement by both Licensor and Licensee.
ATTACHED EXHIBITS:
Exhibit A: List of Approved Equipment and location of the Licensed Space
Exhibit B: Site Drawings 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 forty-five(45)days after
the Commencement Date in accordance with Section 3
Appendix I: Definitions
Appendix II: Insurance
Appendix III: Supplemental Provisions
Page 21 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
Exhibit A
List of Approved Equipment and location of the Licensed Space
Page 22 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
Exhibit A
Customer Name: ATC Asset Name: ATC Asset#:
THIRKETTLE CORPORATION 135 W/Everyman Pkwy 309571
Customer Site Name: Customer Site#:
135 W-Everman Pkwy 309571
Total Lease Area Sq.Ft:25.00' Primary Contiguous Lease Area L:5.00' W:5.00' H: Sq.Ft:25.00
Tenant H-Frame 5.00' 5.00' N/A 25.00
Outside Primary Lease Area N/A N/A N/A Sq.Ft:N/A
Generator:N/A Capacity(KW):N/A Fuel Tank Size(gal):N/A Fuel Type:N/A Fuel Tank Setback(radius):N/A
y
•' �_ .r. n{. " t .
. - r
_44 ... �.
Iir
Power Provided By:Utility Company Direct
Telcollnterconnect:N/A
Type:N/A Quantity:N/A TX Power(watts):N/A ERP(watts):N/A
"
r '
Type OMNI N/A N/A N/A N/A N/A
Manufacturer Amphenol Antel N/A N/A N/A N/A N/A
Model# 4240.09-875-Tx N/A N/A N/A N/A N/A
Dimensions HxWxD 106.3"x 2.1"x 2.1" N/A N/A N/A N/A N/A
Weight(lbs.) 19.8 N/A N/A N/A N/A N/A
Location Tower N/A N/A N/A N/A N/A
RAD Center AGL 109.0' N/A N/A N/A N/A N/A
Antenna Tip Height 113.4' N/A N/A N/A N/A N/A
Antenna Base Height 104.6' N/A N/A N/A N/A N/A
Mount Type Pole Mount N/A N/A N/A N/A N/A
Quantity 1 N/A N/A N/A N/A N/A
Azimuths/Dir.of
Radiation 0 N/A N/A N/A N/A N/A
Quant.Per
Azimuth/Sector 1 N/A N/A N/A N/A N/A
TX/RX Frequency
Units MHz N/A N/A N/A N/A N/A
TX Frequency 940-940.05 N/A N/A N/A N/A N/A
RX Frequency 901-901.05 N/A N/A N/A N/A N/A
Using Unlicensed
Frequencies? No N/A N/A N/A N/A N/A
Antenna Gain 9.1 N/A N/A N/A N/A N/A
Total#of Lines 1 N/A N/A N/A N/A N/A
Line Quant.Per 1 N/A N/A N/A N/A N/A
Azimuth/Sector
Line Type Coax N/A N/A N/A N/A N/A
Line Diameter Size 7/8"Coax N/A N/A N/A N/A N/A
Line Configuration N/A N/A N/A N/A N/A N/A
Revision l-OAA713149
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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.
Page 23 of 34
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DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
Exhibit C
As Built Drawings or Construction Drawings
To be attached hereto within forty-five(45)days after the Commencement Date.
Page 24 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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, (ii) is the successor or surviving entity
by a merger or consolidation of Licensee pursuant to Applicable Law, or (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 fifty percent(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.
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.
Application Fee: defined in Section IV.
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.
BLM: defined in Subsection 5(d).
Business Day: a day other than a Saturday, Sunday or legal holiday for commercial banks under the laws
of the United States or the state in which the Tower Facility is located.
Claims: demands, claims, suits, actions, proceedings or investigations brought against a Party by an
unrelated or unaffiliated person or entity.
Commencement Date: defined in Section IV.
Common Expenses: defined in Section 7.
Connection Fee: defined in Section IV.
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, reasonable
legal fees, court costs, disbursements and costs of investigations, deficiencies, levies, duties and imposts.
Easement: defined in Section 2.
Effective Date: defined in the introductory paragraph.
Page 25 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
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.
Final Rule: defined in Subsection 11(g).
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.
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 or entity entitled to indemnification under Section 15 hereof.
Indemnifying Party: any person or entity obligated to provide indemnification under Section 15 hereof.
Initial Term: defined in Section IV and referenced in Subsection 6(c).
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 Section IV and referenced in Subsection 5(a).
MPE: defined in Section 25.
Notice Address: defined in Section 18.
Page 26 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
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 Subsection 10(a) of this Agreement.
Paying Carrier: defined in Subsection 24(b).
Paying Carrier Rate: defined in Subsection 24(b).
Party(ies): Licensor or Licensee.
Permitted Assignment: defined in Subsection VI.A.
Permitted Frequencies: defined in Section lll.
Priority User: defined in Subsection 11(a)(iv).
Relocation Application Fee: defined in Section IV.
Relocation Notice: defined in Subsection 24(b).
Remittance Address: defined in Section ll.
Renewal Term(s): defined in Section IV and referenced in Subsection 6(b).
RF Emissions: defined in Section 25.
Site Inspection Fee: defined in Section IV.
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.
Trigger Condition: defined in Section 24(b).
Unlicensed Frequencies: defined in Subsection 11(a)(vi).
Unlicensed User: defined in Subsection 11(a)(vii).
Utility Change Event: defined in Subsection 5(b).
Utility Fee: defined in Section IV.
Page 27 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
USFS: defined in Section 5(d).
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.
Page 28 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
Appendix II
Insurance
A. Licensor shall maintain in full force during the Term of this Agreement the following insurance:
1. 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 thirty (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:
1. 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 Licensor will receive not less than thirty (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.
Page 29 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
Appendix III
Supplemental Provisions
II. NOTICE & EMERGENCY CONTACTS:
• Licensee's local emergency contact (name and number): David Holt, Senior IT Manager
(WITOnCallPager@fortworthtexas.gov)and Madelene Rafalko, AMI Program Manager(817-392-
5467).
• Licensor's local emergency contact: Network Operations Communications Center (800) 830-3365.
• Notices to Licensee shall be sent to 200 Texas Street, Fort Worth, TX 76102 to the attention of
John Robert Carman, Director of Water Department.
• 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.
5(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.
15. Indemnification; insurance.
(e) Notwithstanding the foregoing, so long as(but only so long as)the City of Fort Worth shall be
the Licensee hereunder, Licensee shall be permitted to self-insure for the perils and risks covered
under the policies of insurance set forth in Appendix II. Licensee agrees that, in the event of any
Damages that would have been covered by Licensee's insurance pursuant to this Appendix II,
Licensee shall perform all of the obligations of a third-party private insurer as if Licensee had
elected to obtain the insurance required under this Appendix II from a private third-party insurer.
So long as Licensee shall elect to self-insure, Licensee's employees shall not climb the tower for
any reason whatsoever, and Licensee's employee maintenance of Licensee's Approved
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 Approved Equipment
Page 30 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
located on the communications tower absent proof of maintaining insurance limits meeting those
set forth in Appendix II attached hereto.
31. CONFIDENTIALITY. The Licensee is a government entity under the laws of the State of Texas and
all documents held or maintained by the Licensee are subject to disclosure under the Texas Public
Information Act. 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. FISCAL FUNDING LIMITATION. In the event no funds or insufficient funds are appropriated and
budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for payments
due under this Agreement,then the Licensee will immediately notify Licensor of such occurrence and
this Agreement shall be terminated on the last day of the fiscal period for which appropriations were
received without penalty or expense to the Licensee of any kind whatsoever, except to the portions
of annual payments herein agreed upon for which funds shall have been appropriated.
33. RIGHT TO AUDIT. Licensor agrees that the Licensee shall, until the expiration of three (3) years
after final payment under this Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Licensor involving transactions relating to this
Agreement. Licensor agrees that Licensee shall have access during normal working hours to all
necessary Licensor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. The Licensee shall give Licensor
reasonable advance notice of intended audits.
Licensor further agrees to include in all its subcontracts hereunder a provision to the effect that the
subcontractor agrees that the Licensee shall, until the expiration of three(3)years after final payment
under the subcontract, have access to and the right to examine any directly pertinent books,
documents, papers and records of such subcontractor, involving transactions to the subcontract, and
further, that Licensee shall have access during normal working hours to all subcontractor facilities,
and shall be provided adequate and appropriate work space, in order to conduct audits in compliance
with the provisions of this article. Licensee shall give subcontractor reasonable advance notice of
intended audits.
Licensor further agrees to accept the authority of the State of Texas Auditor's office authority to
conduct audits and investigations under the State Water Infrastructure Reserve Fund Texas
("SWIRFT') in connection with state funds received pursuant to this Agreement. The Licensor shall
comply with the directives from AM, the Licensee and the Texas State Auditor and shall cooperate in
any such audit or investigation.The Consultant agrees to provide the Texas State Auditor with access
to any information AM, the Licensee or Texas State Auditor considers relevant to the audit or
investigation. The Consultant agrees to include the same provision in any contract or subcontract
used in connection with this Agreement.
34. 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 nonconfidential 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.
Page 31 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
35. SOVEREIGN IMMUNITY. Nothing herein constitutes a waiver of the Licensee's sovereign immunity.
To the extent this Agreement requires the Licensee to waive its rights or immunities as a government
entity, such provisions are hereby deleted and shall have no force or effect.
36. NO DEBT. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed
that all obligations of the Licensee hereunder are subject to the availability of funds. If such funds are
not appropriated or become unavailable, the Licensee shall have the right to terminate this
Agreement except for those portions of funds which have been appropriated prior to termination.
37. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached Agreement
requires the Licensee to pay attorneys' fees for any action contemplated or taken, or penalties or
liquidated damages in any amount, the Licensee objects to these terms and any such terms are
hereby deleted from the Agreement and shall have no force or effect.
38. Self-Insurance. so long as (but only so long as) the City of Fort Worth shall be the Licensee
hereunder, Licensee shall be permitted to self-insure for the perils and risks covered under the
policies of insurance set forth in Section B of Appendix IV of the Agreement. So long as (but only so
long as) the City of Fort Worth shall be the Licensee, Appendix II shall not apply to this Agreement
and all references to Appendix II within the Agreement shall refer to Appendix IV.
So long as Licensee shall elect to self-insure as provided in and subject to the provisions of Item B
of Appendix IV, only Licensee's contractors and subcontractors maintaining the required insurance
with a private third-party insurer(and no employee or other personnel of Licensee or any other self-
insured person or entity) shall be permitted to access or climb the Tower.
Page 32 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER:135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER:135 W—Everyman Pkwy/309571
Appendix IV
Insurance
A. Licensor shall maintain in full force during the Term of this Agreement the following insurance:
1. 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 thirty(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 the following insurance:
1. 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 Licensor will receive not less than thirty(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.
Notwithstanding the foregoing, so long as (but only so long as)the City of Fort Worth shall be the
Licensee hereunder, Licensee shall be permitted to self-insure for the perils and risks covered under the
policies of insurance set forth in this Item B. Licensee agrees that, in the event of any Damages that
would have been covered by Licensee's insurance pursuant to this Item B, Licensee shall perform all of
the obligations of a third-party private insurer as if Licensee had elected to obtain the insurance required
under this Item B from a private third-party insurer. In addition, Licensee shall cause all contractors,
subcontractors or any other person or entity with access to the Tower Facility or the Tower to carry the
insurance in the types and amounts set forth in Item C, and no such contractor or subcontractor shall
access or climb the Tower for any reason whatsoever, unless and until Licensee shall deliver to Licensor
certificates of insurance or other evidence reasonably satisfactory to Licensor evidencing such insurance.
Licensee further agrees that, for purposes of the waiver of subrogation contained in Section 27(a) herein,
Licensee shall be deemed an insurer and shall be bound by such waiver of subrogation.
Page 33 of 34
DocuSign Envelope ID:CC3E1935-3663-42A0-9D28-2627A9A074B0
LICENSOR SITE NAME/NUMBER: 135 W/Everyman Pkwy/309571
LICENSEE SITE NAME/NUMBER: 135 W—Everyman Pkwy/309571
C. Licensee 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 obtain and maintain in full force
the following insurance:
1. 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 Licensor will receive not less than thirty(30)days written notice
prior to any cancellation of, or material change in coverage. The insurance specified in this Item C 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.
D. 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, B and C in accordance with then-current
customary insurance requirements in the tower industry nationally.
Page 34 of 34