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HomeMy WebLinkAboutContract 36580 (2)r ' •I ro t• CITY OF FORT WORTH COMMUNICATIONS FACILITY LICENSE AGREEMENT (WATER TOWER) This COMMUNICATIONS FACILITY LICENSE AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation organized under the laws of the State of Texas, acting by and through Marc Ott, its duly authorized Assistant City Manager, and MetroPCS Texas LLC ("Licensee"), a Delaware limited liability company. Recitals The following statements are true and correct and form the basis of this Agreement: A. The City owns a water tower known as the Northwest Elevated Water Storage Tank ("Tower") which is located on a parcel of improved land owned in fee simple by the City ("Owned Premises") located at 3216 Azle Avenue, Fort Worth, Texas. B. The City owns and operates, among other things, certain communications facilities on the Tower. C. Licensee wishes to use a portion of the Owned Premises and space on the Tower as described in this Agreement in order to enable Licensee to erect, operate and maintain certain communications equipment of Licensee, and the City is willing to allow such use on the terms and conditions set forth in this Agreement. Agreement NOW, THEREFORE, in consideration of the benefits, promises and mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged_ by both the City and Licensee, the City and_ Licensee agree as follows: 1. PREMISES. In accordance with the terms and conditions set forth in this Agreement, the City hereby grants to Licensee the use of the following portions of the Owned Premises: 1.1. Space on the Tower for Licensee's directional or omni antennae, connecting cables and related appurtenances ("Antennae Facilities") as authorized in writing by the City's Water Department Director or designated representative ("Director"); and 1.2. Space on the Owned Premises for Licensee's equipment shelter ("Equipment Shelter"), power and any necessary utilities, as authorized in writing by the Director. Water Tower CFLA between City of Fort Worth and Metro-PCS Texas LLC (Northwest Elevated Tower) Page 1 4�1'��: j , U a Ali portions of the Owned Premises that are used by Licensee under this Agreement shall hereinafter be referred to as the "Premises". References in this Agreement to the Owned Premises shall be construed to include the Tower and the Premises. 2.1. Initial Term. Unless terminated earlier as provided in this Agreement, the initial term of this Agreement shall be five (5) years, commencing on the date of execution ("Effective Date") and expiring at 11:59 P.M. on the fifth anniversary of the Effective Date ("Initial Term"). 2.2. Renewal Terms. Unless the City or Licensee exercises a termination right as provided in this Agreement prior to the expiration of the Initial Term, and provided that the City, in its sole discretion, wishes to grant Licensee the right to use the Premises at the time, the City shall give Licensee two (2) consecutive rights of first opportunity to renew this Agreement on terms and conditions and at a License Fee or other compensation prescribed by the City at the time, for two (2) additional consecutive terms of five (5) years each (each a "Renewal Term"). In order to have this priority, Licensee shall provide the City with written notice of its desire to continue to use the Premises not less than ninety (90) days and not more than one hundred twenty (120) days prior to the expiration of the term then in effect. If Licensee fails to renew this Agreement in accordance with these procedures for the first Renewal Term following the Initial Term, or if this Agreement is terminated during the first Renewal Term, Licensee shall simultaneously forgo its right of opportunity to renew this Agreement for a second Renewal Term. 3. LICENSE FEE. 3.1. License Fee for Premises. On or before the Effective Date of this Agreement Licensee shall pay the City an annual license fee ("License Fee") for use of the Premises between the Effective Date and September 30, 20007 in the amount of Twenty-nine thousand five hundred and sixteen Dollars ($29,516.00) for the first antenna placed on the Premises and Two thousand nine hundred and fifty-one Dollars ($2,951.00) for each subsequent antenna that the City allows Licensee to place or install on the Premises, which License Fee shall be prorated in accordance with the number of days remaining until September 30, 2007. Thereafter, this License Fee shall be adjusted in accordance with Section 3.2. If Licensee's Antennae Facilities consist of an array or interconnection of antennae, the City shall determine, in the City's sole discretion and judgment and consistent with the City's previous decisions in similar situations (if any), whether such Antennae Facilities consist of one antenna or more than one antenna. In addition, if Licensee wishes to attach Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 2 any additional Antennae Facilities to the existing Antennae Facilities, the City shall determine, in the City's sole discretion and judgment and consistent with the City's previous decisions in similar situations (if any), whether such additional Antennae Facilities constitute the placement or installation of an additional antenna or antennas on the Premises. Nothing in this Agreement shall grant Licensee the right to place or install additional facilities or equipment on the Premises without the City's advance written consent. 3.2. Adiustments to License Fee. During the Initial Term and any Renewal Term (unless the City has specified a different License Fee and adjustment schedule for a Renewal Term in accordance with Section 2.2 of this Agreement) the License Fee shall increase on October 1st of each year, beginning October 1, 2007, by three percent (3%) over the previous year's License Fee. 3.3. Due Dates. The due dates for payment of License Fees under this Agreement are established in accordance with the City's fiscal year, which begins on October 1 st of a given year and ends September 30th of the following year ("Fiscal Period"). Therefore, except for the first License Fee payment (which shall be payable upon execution of this Agreement by Licensee), all annual License Fee payments shall be due in full, at the appropriate address for the City set forth in Section 24 of this Agreement, on or before the October I st commencement date of a respective forthcoming Fiscal Period. 3.4. Late Fees. If Licensee fails to pay any License Fee by the respective due date, Licensee shall Fay the City a late payment fee of ten percent (10%) of the amount of the License Fee outstanding in addition to the License Fee then due. Moreover, any License Fee that Licensee owes the City and that is past due shall bear interest until paid in full at the rate of two percent (2%) per month or the highest rate permitted by applicable law, whichever is less. 4. USE OF PREMISES. Licensee may use the Premises, in accordance with the provisions and conditions of this Agreement and good engineering practices, solely for the installation, operation and maintenance of its Antennae Facilities; for the transmission, reception and operation of a communications system and uses incidental thereto; and for the storage of related equipment. Licensee hereby agrees that its use of the Premises shall not interfere with the use of the Tower, the Owned Premises, related facilities or other equipment of the City or other licensees, tenants and users as such use exists as of the date of execution of this Agreement. Licensee acknowledges that this Agreement does not convey to Licensee or successors in interest any exclusive rights Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 3 5. INSTALLATION OF EQUIPMENT, CONSTRUCTION AND IMPROVEMENTS. 5.1. In General. Licensee may not make any modification, renovation or improvement to or engage in any other construction activity (collectively "Improvement") on the Premises or Owned Premises unless the City provides advance written consent to Licensee. In order to obtain such consent, Licensee shall submit a written request to the City, which shall include all plans and estimates for the costs of the proposed Improvement, to the Director. All plans, specifications and required work for the proposed Improvement must conform to and be in accordance with all applicable and then -current federal, state and local laws, ordinances, rules and regulations. If Licensee intends to employ or engage a contractor or other third party to perform any work on the proposed Improvement, Licensee shall supply the City with the name of such party and must obtain the City's advance written approval before it authorizes such party to work on the Premises or Owned Premises. 5.2. Documents. Licensee shall supply the Director with as -built drawings of the Antennae Facilities and any other improvements within thirty (30) calendar days following their installation on the Premises. These as -built drawings shall show the actual locations of all equipment and improvements. Licensee shall also provide the City with a complete and detailed inventory of all Antennae Facilities, equipment and personal property that it intends to place on the Premises. 5.3. Equipment Upgrade. Licensee may update or replace the Antennae Facilities from time to time with the prior written approval of the City, which approval shall not unreasonably be withheld or delayed, provided that (i) the replacement facilities are not greater in number or materially greater in size than the existing Antennae Facilities; (ii) that the installation of such facilities does not structurally impact the Tower any more than the existing Antennae Facilities; and (iii) that the City has provided advance written consent to any change in the location of such facilities on the Tower. If any update or replacement of the Antennae Facilities results in the placement of an additional antenna or antennas on the Premises, as determined by the City in its sole discretion and judgment and consistent with the City's previous decisions in similar situations (if any), the License Fee shall be increased pursuant to and in accordance with Section 3.1 of this Agreement as of the date such additional antennas are placed on the Premises. 5.4. Bonds Required of Licensee and Licensee's Contractors. In the event that Licensee or a contractor of Licensee wishes to undertake any Improvement on the Premises, other than the mere installation of equipment that is not Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 4 built into or in any other manner affixed to or incorporated into the Tower, Licensee and Licensee's contractor, if any, shall obtain payment and performance bonds in accordance with the Texas Government Code, Chapter 2253, as amended, in a form approved in writing and in advance by the City ("Bonds"). Licensee's Bonds shall guarantee (i) satisfactory completion of the proposed Improvement; (ii) compliance by Licensee with all requirements, terms and conditions of this Agreement during the Improvement project; and (iii) full payments to all persons, firms, corporations or other entities with whom Licensee has a direct relationship relating to the Improvement project. If Licensee uses a contractor to work on the Improvement, the contractor's Bonds shall guarantee (i) the faithful performance and completion of all work on the Improvement covered by the contract between Licensee and its contractor in accordance with the plans and specifications approved by the City and (ii) full payments for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of that contract. The contractor's Bonds shall name both the City and Licensee as dual obligees. Licensee's contractor shall execute and deliver its Bonds to Licensee. Licensee shall provide the Director with copies of all Bonds prior to the commencement of work on the proposed Improvement. 6. UTILITIES. Licensee, at Licensee's sole cost and expense, shall separately meter and pay for all utilities used in connection with the Antennae Facilities and Licensee's operations on the Premises. 7. MAINTENANCE AND REPAIRS. 7.1. Painting of Antennae Facilities by Licensee. Licensee, at its sole cost and expense, shall at all time keep its Antennae Facilities painted as speced in wrng by the City. 7.2. Maintenance and Repairs by Licensee. Licensee, at its sole cost and expense, shall maintain, repair and secure its Antennae Facilities, equipment and personal property on or attached to the Premises in a safe condition, in good repair and in a manner suitable to the City and that does not conflict with the use of the Tower by the City or other licensees, users or tenants as such use existed on the date of execution of this Agreement. Licensee shall keep the Premises free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or interference. 7.3. Inspection. The City may examine the Antennae Facilities and inspect the Premises for any reason deemed necessary by the City, including, but not limited to, purposes of safety and Water Tower CFLA between City of Fort Worth and Metro-PCS, Ina (Northwest Elevated Tower) Page 5 ensurance that Licensee is in compliance with the conditions and provisions of this Agreement. If Licensee is responsible under this Agreement for any maintenance or repairs, the City shall notify Licensee in writing and Licensee shall undertake such maintenance or repairs at its own cost and expense and in a timely and diligent manner. In an emergency, as determined by the City in its sole discretion, the City may, at its option, perform maintenance or repairs that are Licensee's responsibility in order to avert, mitigate or cure such emergency. In this event, Licensee shall reimburse the City for the reasonable cost of such maintenance or repairs within thirty (30) days of receipt of an invoice from the City that describes the maintenance or repairs the City performed on Licensee's behalf. 7.4. Damage Caused by Licensee. Licensee, at Licensee's sole cost and expense, shall repair any damage to or replace any damaged portion of the Owned Premises, including the Premises and the Tower, that is caused by Licensee, its officers, agents, employees, contractors, or subcontractors, to the City's reasonable satisfaction as soon as reasonably practicable, provided that Licensee shall commence within ten (10) calendar days following the date of such damage. 7.5. Maintenance by the City. The City agrees at its cost and expense to maintain the Tower in good order and condition and to make all necessary repairs and replacements promptly with first-class materials, in a good and workmanlike manner, and in compliance with all applicable laws, ordinances, rules and regulations. If the City incurs any additional costs associated with its maintenance of the Tower as a result of Licensee's Facilities or operations on the Tower, including, but not limited to, protection of the Facilities during the City's painting of and/or making repairs to the Tower, Licensee shall fully reimburse the City for such costs within thirty (30) calendar days following the receipt of an invoice for such from the City. The City, its officers, agents, servants, employees, contractors and/or subcontractors shall not be liable or in any way responsible for the maintenance of or damage to the Antennae Facilities or for any disruption to Licensee's operations or business, including lostprofits, that may occur while the Tower is covered with shrouds for the purpose of painting or other routine maintenance, except if such damage is a result of City's negligence or willful misconduct,. 8. ACCESS TO PREMISES. 8.1. By Licensee. Subject to Section 9.2, Licensee shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week; provided, however, that, except in an emergency, Licensee shall provide the City with at least twenty-four (24) hours' written notice of Licensee's desire for access to the Premises. In addition, except in an emergency, Licensee shall obtain the City's advance written consent at least twenty-four Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 6 (24) hours before Licensee allows on the Premises or other portion of the Owned Premises any third party, including contractors or subcontractors whom Licensee is using or intends to use to install, operate or maintain the Antennae Facilities and Equipment Shelter or to perform any modification, renovation, improvement or construction on the Premises. 8.2 City Escort and Reimbursement of City Expenses. Licensee and its contractors and subcontractors shall be accompanied by City personnel designated by the Director at all times that Licensee or a contractor or subcontractor of Licensee is on the Owned Premises or Premises. Failure to abide by this requirement shall constitute a material breach of this Agreement by Licensee. Licensee shall be responsible for reimbursing the City for the time spent by City personnel in accompanying Licensee or a contractor or subcontractor of Licensee at the rate of Fifty Dollars ($50.00) per hour. Licensee will pay such reimbursement to the City in full within thirty (30) days following receipt of an invoice for such from the City. 9. INTERFERENCE. 9.1 Interference with the City's Operations Prohibited. Licensee covenants and agrees that its Antennae Facilities and its operations on the Premises shall not damage or interfere in any way with the City's operations on the Tower or Owned Premises. Licensee agrees to cease any action on its part which interferes with the City's use of the Tower or the Owned Premises as such use existed on the date of execution of this Agreement immediately upon actual notice of such interference. In such an event, either party may terminate this Agreement following thirty (30) days' written notice to the other party; provided, however, that if such interference is material and, in the City's sole and reasonable opinion, poses any threat to the public safety or welfare, the City may terminate this Agreement immediately upon provision of written notice to Licensee. In the event of such termination, the City shall refund to Licensee an amount equal to the License Fee paid for the then current Fiscal Period times a fraction, the numerator of which is the number of days remaining in such Fiscal Period, and the denominator of which is 365 (the "Refund Amount"). 9.2 Interference with Certain Other Operations Prohibited. Licensee covenants and agrees that its Antennae Facilities and its operations on the Premises shall not damage or interfere in any way with the Tower operations of a licensee, user or other tenant whose communication facilities on the Tower existed prior to the installation of Licensee's Antennae Facilities. If Licensee's operations on the Premises cause such interference, Licensee shall undertake all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated within a reasonable amount of time, not to exceed thirty (30) calendar days, Licensee shall immediately cease any action on its part that interferes with the respective licensee, user or tenant's use of the Tower or the Owned Premises. In such an event, the Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 7 City or Licensee may terminate this Agreement upon thirty (30) calendar days' written notice to the other party. In the event of such termination, the City shall refund to Licensee the Refund Amount. 9.3. Interference and Enrineerinj Studies. Prior to the approval of the placement of Licensee's Antennae Faces or any Improvement on the Tower, the City may require (i) an interference study by the City or a third party contractor acceptable to the City in order to determine whether the Antennae Facilities, any Improvement requested by Licensee and/or any of Licensee's intended operations on the Tower will interfere with any existing communications facilities or the City's operations on the Tower and/or (ii) an engineering study by the City or a third party contractor acceptable to the City in order to determine whether the Tower is able to support structurally Licensee's Antennae Facilities and/or Improvements. Licensee shall pay for any interference or engineering study and all associated costs at Licensee's sole cost and expense. If the City or a third party contractor of the City undertakes any interference or engineering study, the City will provide (i) written notice to Licensee of its intent to undertake such study and the estimated cost of such study prior to the performance thereof and (ii) a written copy of such study to Licensee. If a third party contractor of Licensee undertakes any interference or engineering study, Licensee shall require such contractor to provide to the Director a (i) written copy of such study and (ii) after installation of Licensee's Antennae Facilities or any Improvement on the Tower, a written report, signed by the contractor, stating that the contractor has inspected the Antennae Facilities or Improvements and that the comply with all applicable and then - current federal, state and local laws, ordinances, rules and regulations as well as any specific requirements established by the Director as a condition of the City's approval of such installation. In no way shall the performance of any interference or engineering study or the results therefrom in any way affect the application of Sections 10.1 and 10.2. If such studies indicate that interference or structural issues will arise as a result of the installation of Licensee's Antennae Facilities or any Improvement on the Tower, then Licensee shall have the right to terminate this Agreement upon the provision of written notice to the City. In the event of such termination, the City shall refund to Licensee the Refund Amount. 9.4. Interference with Licensee's Operations. The City does not guarantee to Licensee subsequent noninterference with Licensee's operations on the Premises. However, following the Effective Date of this Agreement, for any request the City receives from a third party, other than a governmental unit, office or agency, to use or lease space on the Tower and/or Owned Premises, the City shall submit to Licensee such third party's proposal, complete with all technical specifications reasonably requested in writing by Licensee, for Licensee's review; provided, however, that the City shall not be required to provide Licensee with any specifications or information claimed to be of a proprietary nature by such third party. Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 8 Licensee shall have ten (10) calendar days following receipt of such third party's proposal to make any reasonable objections thereto. If the City verifies and agrees with Licensee's objections, the City shall require the third party to modify its operations proposal in a manner determined, in the City's reasonable judgment, to reduce the interference adequately with respect to Licensee's operations. Licensee's failure to make any objection within the ten-day time frame provided above shall be deemed as consent by Licensee to the installation of antennae or transmission facilities pursuant to the third party's original proposal. Notwithstanding anything to the contrary in this Agreement, the City may allow, at any time, a governmental unit, office or agency to use or lease space on the Tower for antennae or other communications facilities without regard to potential or actual interference with Licensee's operations on the Premises; provided, however, that if the operations of such governmental unit, office or agency actually and materially interferes with Licensee's operations, Licensee may terminate this Agreement upon thirty (30) calendar days' written notice to the City. In the event of such termination, the City shall refund to Licensee the Refund Amount. 10. RIGHTS AND RESERVATIONS OF THE CITY. 10.1. This Agreement is not a franchise or permit for Licensee to use or cross the public rights -of -way within the City of Fort Worth in the operation of its communications business. Licensee hereby covenants and agrees that it will not use or cross the public rights -of -way in the City of Fort Worth unless it first notifies the City in writing and obtains all licenses, permits or franchises required by the City of all entities wishing to utilize the public rights -of -way in the same manner as Licensee. 10.2. The City may at any time take whatever action it deems necessary, in its reasonable discretion, to repair, maintain, alter or improve the Premises or Owned Premises. The City shall use best efforts to not interfere with the operation of Licensee's Antennae Facilities in connection therewith. However, if the City's action under this Section 11.2 does result in interference with the operation of Licensee's Antennae Facilities for thirty (30) continuous days, Licensee shall have the right to terminate this Agreement upon written notice to the City. In the event of such termination, the City shall refund to Licensee the Refund Amount. 10.3. The City reserves the right to lease or allow use of other portions of the Tower or the Owned Premises to third parties. 10.4. The City reserves the right to require Licensee to relocate Antennae Facilities on the Tower to another location on the Tower in the event the City desires to lease or allow use of such space on the Tower to a third party which is a governmental unit, office or agency. In such an event, the City shall require the third party lessee to reimburse Licensee's actual costs of relocation, and Licensee shall complete the relocation of its facilities within thirty (30) calendar days following receipt of written notice from the City. Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 9 10.5. During any war or national emergency, the City shall have the right to lease or aRow use of any part of the Owned Premises, including the Tower and the Premises, to the United States Government. In this event, any provisions of this instrument which are inconsistent with the provisions of the lease or use agreement with the Government shall be suspended. The City shall not be liable for any loss or damages alleged by Licensee as a result of this action. However, nothing in this Agreement shall prevent Licensee from pursuing any rights it may have for reimbursement from the United States Government. 11. INSURANCE. 111111 Licensee shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverages as specified herein, naming the City as an additional insured and covering all public risks related to the leasing, use, occupancy, maintenance, existence or location of the Premises and Licensee's operations thereon: 11.1. Primary Liability Insurance Coverage • Commercial General Liability: $5,000,000 per occurrence, providing blanket contractual liability insurance for all written contracts; products and completed operations; independent contractor's liability; and coverage for property damage from perils of explosion or collapse; provided that such amounts may be satisfied through an umbrella policy; • Environmental Impairment Liability: $1,000,000 per occurrence; • Automobile Liability: $1,000,000 per accident, including, but not limited to, all vehicles, whether owned or hired, in use by Licensee. its_ emplQyeesand agents; • Worker's Compensation/Employer's Liability: Worker's compensation coverage as required bylaw; and Employer's Liability at $100,000 per accident. Property Insurance. Prior to the installation of the Antennae Facilities and related equipment and prior to the commencement of any modification, renovation, improvement or new construction, Licensee shall obtain builders all-risk insurance and an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature which are to be used in or incidental to the respective project. Upon completion of the installation of the Antennae Facilities, and any subsequent modification, renovation, improvement or new construction, Licensee shall obtain and Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 10 maintain fire, extended coverage and vandalism and malicious mischief insurance, all at full replacement cost limits, on the Antennae Facilities and the Premises. 11.3. Insurance Required of Licensee's Contractors. Licensee shall require that all contractors used to perform any of the requirements, obligations, services or other work hereunder provide insurance with coverages and limits that are reasonably satisfactory to the City. Prior to the commencement of work on the Premises by any contractor used by Licensee, Licensee shall deliver to the City a certificate of insurance evidencing the insurance coverage for such contractor. 11.4. General Requirements. 11.4.1. The City, in the City's sole and reasonable discretion, reserves the right to revise insurance coverage requirements and limits at any time. Licensee agrees that within thirty (30) days following receipt of written notice from the City, Licensee will implement all revisions reasonably requested by the City. 11.4.2. Licensee's policy or policies of insurance shall be endorsed to cover all of Licensee's operations on the Owned Premises and to provide that no material changes in coverage, including, but not limited to, cancellation, termination, non -renewal or amendment, shall be made without thirty (30) days' prior written notice to the City. 11.4.3. Licensee shall maintain its insurance with underwriters authorized to do business in the State of Texas and who are reasonably acceptable to the City in terms of solvency and financial strength. Licensee shall furnish the City with certificates of insurance signed by the respective companies as proof that it has obtained the types and amounts of insurance coverage required herein. In addition, Licensee shall, on demand, provide the City with evidence that it has maintained such coverage in full force and effect. 11.4.4. Deductible or self -insured retention limits on any line of coverage required herein shall not exceed $100,000 in the annual aggregate unless the limit per occurrence, or per line of coverage, or aggregate is otherwise approved by the City in writing. 11.4.5. All insurance policies other than those for worker's compensation shall be written on an occurrence basis and not a claims made basis. 11.4.6. Nothing in this section shall be construed to limit or in any way affect Licensee's operation as an independent contractor as provided in Section Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 11 13 or Licensee's liability or obligation to indemnify the City as provided in Section 14, 12. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Licensee shall operate as an independent contractor as to all rights and privileges granted herein, and not as an agent, representative or employee of the City. Licensee shall have the exclusive right to control the details of its operations and activities on the Premises and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, patrons, and licensees. Licensee acknowledges that the doctrine of respondent superior shall not apply as between the City and Licensee, its officers, agents, employees, contractors and subcontractors. Nothing in this Agreement shall be construed as the creation of a partnership or joint enterprise between the City and Licensee. 13. INDEMNIFICATION. LICENSEE HEREBY ASSUMES ALL LL4BILITY AND RESPONSIBILITY FOR ANY HARM OR CLAIM FOR WHICH RECOVERY OF DAMAGES MAY BE SOUGHT, INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY DAMAGE, AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH ITS USE OF THE OWNED PREMISES UNDER THIS AGREEMENT OR WITH THE USE, MAINTENANCE, OR OCCUPANCY OF THE OWNED PREMISES OR ANY IMNPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO, THE TOWER, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES, AGENTS, OR CONTRACTORS (OTHER THAN LICENSEE) . LICENSEE HEREBYAGREES TO DEFEND, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS OR LAWSUITS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO LICENSEE'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH LICENSEE'S USE, MAINTENANCE OR OCCUPANCY, OF THE OWNED PREMISES OR ANY IMPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO, THE TOWER, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES, AGENTS, OR CONTRACTORS. LICENSEE ASSUMES ALL RESPONSIBILITY AND AGREES TO PAY THE CITY FOR ANY AND ALL INJURY OR DAMAGE TO THE OWNED PREMISES, INCLUDING THE TOWER AND OTHER PORTIONS OF THE PREMISES, WHICH ARISE OUT OF Water Tower CFLA between City of Fort Wo OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS OR LICENSEES, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY, ITS EMPLOYEES, AGENTS, OR CONTRACTORS. 14. TERMINATION. In addition to termination rights contained elsewhere in this Agreement, this Agreement may be terminated as follows: 14.1. By Either Party. The City or Licensee may terminate this Agreement for any reason, to be effective on the September 30th expiration of the Fiscal Period then in effect, by provision to the other party of at least thirty (30) calendar days' advance written notice. 14.2. Failure by Licensee to Pay License Fees or Other Char;;es. If Licensee fails to pay any License Fees or other charges due under this Agreement, the City shall deliver to Licensee a written invoice and notice to pay the invoice within ten (10) calendar days. If Licensee fails to pay the balance outstanding within such time, the City shall have the right to terminate this Agreement immediately. 14.3. Safety Issues. If the City determines, in its sole and reasonable discretion, that the Tower is structurally unsound or otherwise not structurally suitable for Licensee's operations, taking into account all factors relating to the condition of the Tower, including, but not limited to, age, wear and tear or damage, or if the City determines, in its sole and reasonable discretion, that Licensee's continued use of the Tower constitutes a threat to the public health safety or welfare, the City may terminate this Agreement immediately upon written notice to Licensee and take any reasonable action, including, but not limited to, removal of the Antennae Facilities. 14.4. Technical Difficulties During Trial Period. The first ninety (90) days following the Effective Date of this Agreement shall constitute a trial period ("Trial Period") during which Licensee may test the Antennae Facilities to ensure that their location on the Towers is suitable for Licensee's business purposes. If Licensee encounters any kind of technical difficulties with its Antennae Facilities during the Trial Period, Licensee may terminate this Agreement at any time during the Trial Period by providing written notice to the City. In the event of such termination, the City shall refund to Licensee the Refund Amount. 14.5. Rights of the City Upon Termination or Expiration of Agreement, Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 13 Upon termination or expiration of this Agreement, all rights, powers and privileges granted to Licensee hereunder shall cease. However, Licensee shall remain liable to the City for all arrearages of License Fees and other charges payable hereunder and for any obligations that arose prior to the effective date of termination or expiration but that Licensee did not complete or perform. In addition, Licensee agrees that it will return the Premises in the same condition as existed at the time this Agreement was entered into and all appurtenances and improvements thereon in good order and repair, subject to ordinary wear and tear. Licensee, at its sole cost and expense, shall remove from the Premises all Antennae Facilities, equipment and personal property placed on the Premises by Licensee pursuant to this Agreement and shall restore the affected area of the Premises to the City's reasonable satisfaction within thirty (30) calendar days following the effective date of termination or expiration, except as may otherwise be required or allowed by this Agreement. After such time, the City shall have the right to dispose of the Antennae Facilities in any commercially reasonable manner which it deems fit. Licensee agrees that it will assert no claim of any kind against the City, its agents, servants, employees or representatives which may stem from the City's lawful termination of this Agreement or, in accordance with its terms, any act incident to the City's assertion of its rights under this Agreement. 15. CONDEMNATION. In the event that the Tower is taken by eminent domain, this Agreement shall terminate as of the date title vests in the condemning authority. In the event that any other portion of the Premises is taken by eminent domain, either party may terminate this Agreement as of the date title vests in the condemning authority by giving the other party thirty (30) days' prior written notice. If the Tower or any other portion of the Premises are taken by eminent domain, the City shall receive the full amount of any reward paid for the taking and the full amount of all damages, whether awarded as compensation for diminution in value of Licensee's interest in the Premises or to the fee of the Premises. Licensee shall not be entitled to any portion of such reward or damages and hereby waives any claim to any portion of such reward or damages. 16. ASSIGNMENT. Licensee may assign this Agreement to any person or entity controlling, controlled by or under common control with Licensee or to any person or entity that, after first receiving the necessary FCC licenses, acquires Licensee's radio communications business or assets, provided that (i) Licensee gives the City written notice of such an assignment and (ii) the assignee enters into a written agreement with the City, signed by both the assignee and the City, in which the assignee covenants and agrees to comply with all provisions and conditions of this Agreement and to be bound fully by this Agreement the same as if it had originally executed this Agreement. Otherwise, Licensee may not assign, transfer, sell, lease or otherwise convey all or any portion of its rights and obligations under this Agreement unless (i) the City provides advance written consent and (ii) the assignee or transferee enters into a written agreement with the City, signed by both the assignee or transferee and the City, in which the assignee or transferee covenants and Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 14 agrees to comply with all provisions and conditions of this Agreement and to be bound fully by this Agreement the same as if it had originally executed this Agreement. Licensee may assign, mortgage, pledge, hypothecate or otherwise transfer its interest in this Agreement with the prior written consent of the City, whose consent shall not be unreasonably withheld, to any financing entity, or agent on behalf of any financing entity to whom Licensee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 17. LIENS BY LICENSEE. Licensee acknowledges that it has no authority to engage in any act or to make any contract which may create or be the foundation for any lien upon the property or interest in the property of the City. If any such purported lien is created or filed, Licensee, at its sole cost and expense, shall liquidate and discharge the same within thirty (30) days of such creation or filing. Licensee's failure to discharge any such purported lien shall constitute a breach of this Agreement and the City may terminate this Agreement immediately. However, Licensee's financial obligation to the City to liquidate and discharge such lien shall continue in effect Following termination of this Agreement and until such a time as the lien is discharged. 18. TAXES AND ASSESSMENTS. Licensee agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Licensee, including, but not limited to, those assessed due to (1) Licensee's occupancy of the Premises; (ii) Licensee's use of the Premises; or (iii) any improvements or property placed on the Premises by Licensee. 19. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Licensee agrees__ to comply with all federal, state and local laws, and all ordinances, rules and regulations of the City with respect to the use of the Premises and the operation of the Antennae Facilities. If the City notifies Licensee of any violation of such laws, ordinances, rules or regulations, Licensee shall immediately desist from and correct the violation. Licensee covenants and agrees that it shall not engage in any unlawful use of the Premises. Licensee further agrees that it shall not knowingly permit its officers, agents, and employees to engage in any unlawful use of the Premises. Knowingly unlawful use of the Premises by Licensee shall constitute a breach of this Agreement and grounds for immediate termination by the City. 20. NON-DISCRIMINATION COVENANT. Licensee, for itself, its personal representatives, successors in interest and assigns, as part of the consideration herein, agrees as a covenant running with the land that no person shall be excluded from participation in or denied the benefits of Licensee's use of the Premises on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page IS Licensee further agrees for itself, its personal representatives, successors in interest and assigns that no person shall be excluded from the provision of any services on or in the construction of any improvements or alterations to the Premises on grounds of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. If any claim arises from an alleged violation of this non-discrimination covenant by Licensee, its personal representatives, successors in interest or assigns, Licensee agrees to indemnify the City and hold the City harmless. 21. LICENSES AND PERMITS. Licensee shall, at its sole expense, obtain and keep in effect all licenses and permits necessary for the installation or operation of its Antennae Facilities, Equipment Shelter, power, any necessary utilities and other business concerns on the Premises. Subject to the City's reasonable attorney and administrative fees, the City shall cooperate reasonably with Licensee in Licensee's efforts to obtain any federal, state or local licenses and permits required or substantially required by Licensee's use of the Premises. 22. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i) hand -delivered to the other party, its agents, employees, servants or representatives, (ii) delivered by facsimile with electronic confirmation of the transmission, provided a copy of same is also sent by United States Mail or (iii) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To the CITY: City of Fort Worth Attn: Director Water Dept. 1000 Throckmorton Fort Worth TX 76102 with a copies to: City of Fort Worth Attn: Water Production Division 1511 11 th Avenue, Fort Worth TX 76102 23. ACCEPTANCE OF PREMISES. To LICENSEE: MetroPCS Attn: Property Manager 6501 Windcrest, #150 Plano, Texas 75024 City of Fort Worth Attn: Department of Law 1000 Throckmorton Street Fort Worth, TX 76102 Licensee acknowledges that it has inspected the Premises and Owned Premises and is fully advised of its own rights without reliance upon any representation made by the City concerning the condition of the Premises or Owned Premises. Licensee hereby accepts the Premises in the condition existing as of the Effective Date of this Agreement. Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 16 24. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 25. NO WAIVER. The failure of the City or Licensee to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver A the City's or Licensee's right to insist upon appropriate performance or to assert any such right on any future occasion. 26. VENUE. Should any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement or by Licensee's operations on the Premises or Owned Premises, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 27. ATTORNEYS' FEES. In the event there should be a default under any provision of this Agreement and either party should retain attorneys or incur other expenses for the collection of License Fees or other charges, or the enforcement of performance or observance of any covenant, obligation or agreement, the parties agree that the reasonable attorneys' fees and other reasonable expenses so incurred shall be paid to the prevailing party by the other party. 28. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, l ;ality and enforceability of the remaining provisions shall not in any way be affected or impaired. 29. FORCE MAJEURE. The City and Licensee shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of omission, fires, strikes, lockouts, national disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 30. HEADINGS NOT CONTROLLING. Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 17 Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 31. ENTIRETY OF AGREEMENT. This Agreement contains the entire understanding and agreement between the City and Licensee, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council. I ITN WH REOF, the parties hereto have executed this Agreement in multiples this bay of , 200�. CITY OF FORT WORTH: By: 40 Marc O Assistant City Manager ATTEST: By: City Secretary APPROVED AS TO FORM AND LEGALITY: Assistant pity Attorney' Q M&C: - ll Water Tower CFLA between City of Fort Worth and Metro-PCS, Inc. (Northwest Elevated Tower) Page 18 MetroPCS Texas LLC, a Delaware limited liability company: By: k- CjPQ rc �-i �►,S ATTEST: s�vArv+ liie.J STATE OF Ly § COUNTY OF CodVk n§ BEFORE ME, the undersigned authority, a Notary Public in and for the State of j VLS , on this day personally appeared 'C)Cky 1 t llcr-c ,known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of %Nj p-(�1eku,c,k U and that s/he executed the same as the act of% P-► ko)5(L Ops for the purposes and consideration therein expressed and in the capacity therein stated. 2004. GIVEN UNDER MY HAND AND SEAL OF OFFICE this St day of uku mt3er TAMIRA LEE GINN MY COMMISSION EXPIRES February 22, 2008 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, this day personally appeared Nl� the foregoing instrument, and ac Worth and that he executed the consideration therein expressed a 2004. Notary Public in and for the State of Te fps ned authority, otary Public in and for the State of Texas, on Ott, kno o me to be the person whose name is subscribed to o ed to me that the same was the act of the City of Fort e as t act of the City of Fort Worth for the purposes and in the stated. GIVEN UND HAND AND SEAL OF OF this day of , Notary Public in and for the State of Texas ACKNOWLEDGEMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared Robert D. Goode, Acting for Marc A. Ott, Assistant Cit�Manager, of the City of Fort Worth, known to me to be the person and officer whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same as the act and deed of the City of Fort Worth, a municipal corporation of Tarrant County, Texas, for the purpose and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 29th day of January 2008. HETTIE LANE MY COMMISSION EXPIRES July 26, 2011 Notary Public in and for the State of Texas CERTIFICATE, OF INSURANCE CERTIFICATEN9EMARSH 1HOU -007685-0 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS Dallas.Certs@Marsh,com NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE 4400 Bank One Center POLICY, THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE 1717 Main Street AFFORDED BY THE POLICIES DESCRIBED HEREIN. Dallas75201 Attn: (866) 966-4664 COMPANIES AFFORDING COVERAGE COMPANY 63165—GAWXS-07/08 DFW 541 5M A ST. PAUL FIRE & MARINE INS CO INSURED COMPANY MetroPCS Communications, Inc. B CHARTER OAK FIRE INS CO 2250 Lakeside Boulevard Richardson, TX 75082 COMPANY C TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA COMPANY D N/A COVERAGES AL This certificate stapersedes and replaces any previously issued certificate for the policy period noted below. 1 THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, CONDITIONS AND EXCLUSIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MMIDD/YY) POLICY EXPIRATION DATE (MM/DD/YY) LIMITS GENERAL LIABILITY GENERAL AGGREGATE $ 210005000 PRODUCTS -COMP/OPAGG $ 21000,000 A COMMERCIAL GENERAL LIABILITY TE09104026 09/01/07 09/01/08 X CLAIMS MADE 1X1 OCCUR PERSONAL & ADV INJURY $ 11000,000 OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $ 11000,000 FIRE DAMAGE (Any one fire) $ 110000000 MED EXP (Any one person) $ Excluded AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 11000,000 X A ANYAUTO TE09104026 09/01/07 09/01/08 A ALL OWNED AUTOS MA09100045 (MA) 09/01/07 09/01/08 BODILY INJURY $ (Per person) SCHEDULED AUTOS X HIRED AUTOS NON -OWNED AUTOS BODILY INJURY (Per accident) $ X X omp $1000 Ded-except trailE rS PROPERTY DAMAGE X Poll $1000 Ded-except trailers GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY: EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ 61000,000 AGGREGATE $ 51000,000 A X UMBRELLA FORM TE09104026 09/01/07 09/01/08 $ OTHER THAN UMBRELLA FORM B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY HC20-UB-7053C105-07 09/01/07 09/01/08 X STATU- TORY LIMITS TWO OTH ER . " EL EACH ACCIDENT $ 11000,000 C THE PROPRIETOR/ X INCL PARTNERS/EXECUTIVE OFFICERS ARE: EXCL HRJ-UB-117D446-07 09/01/07 09/01/08 EL DISEASE -POLICY LIMIT $ 11000,00o EL DISEASE -EACH EMPLOYEE $ 1,000,000 OTHER DESCRIPTION OF OPERATIONSILOCATIONS/VEHICLESISPECIAL ITEMS Site #: DFW541 / 3216 Azle Avenue Fort Worth, TX Where required by written contract, Certificate Holder is an Additional insured (except on Workers' Comp) as respects operations of the Named Insured. CERTIFICATE HOLDER„ CANCELLATION SHOULD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE INSURER AFFORDING COVERAGE WILL ENDEAVOR TO MAIL 10_ DAYS WRITTEN NOTICE TO THE City Of Fort Worth Attn: Director Water Dept CERTIFICATE HOLDER NAMED HEREIN, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 1000 Throckmorton LIABILITY OF ANY KIND UPON THE INSURER AFFORDING COVERAGE, ITS AGENTS OR REPRESENTATIVES, OR THE Fort Worth, TX 76102 ISSUER OF THIS CERTIFICATE. MARSH USA INC. BY: William Hines MM1(3/02)' VALID AS OF: 12/07/07 M&C Request Review Page 1 of 1 �i�� �� Fc�r��Y'���#� El�ipl�y�� {r��c����t www.cfwnet.o�� DATE: CODE: 11 /27/2007 COUNCIL ACTION: Approved on 11/27/2007 REFERENCE NO. TYPE: **C-22544 CONSENT F(�R'i' i�'OR'1'll Print M&C LOG NAME: 60METR0 PCS PUBLIC HEARING: NO SUBJECT: Authorize Execution of License Agreement with Metro PCS for Installation and Operation of Personal Communications System Equipment on the Northwest Elevated Water Tower, Located at 3216 Azle Avenue RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a license agreement with Metro PCS for installation and operation of personal communications system equipment on the Northwest Elevated Water Tower, located at 3216 Azle Avenue. DISCUSSION: Metro PCS has requested the authority to install Personal Communications Systems (PCS) on the Northwest Elevated Water Tower. The existing structure is owned and maintained by the City. All erection, installation, and maintenance costs of the system will be at the sole expense of Metro PCS. The license agreement will have an initial term of five years, with an opportunity for Metro PCS to renew for two consecutive terms of five -years each. Under the terms of the agreement, Metro PCS will make annual payments of $29,516 for the first antenna and $2,952 per year for each subsequent antenna on the same facility, with the total fee increasing by three percent each October 1. The license fee during a renewal term shall follow the same schedule, unless changed by the City, which will have the right to request a new license fee at the time. The Northwest Elevated Water Tower is located in COUNCIL DISTRICT 2. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Water Department will be responsible for the collection and deposit of revenue due to the City under this agreement. TO Fund/Account/Centers PE45 493472 0601000 0.00 Submitted for City Manager's Office b� Originating Department Head: Additional Information Contact: FROM Fund/Account/Centers Marc A. Ott (8476) S. Frank Crumb (8207) S. Frank Crumb (8207) ATTACHMENTS http://www. cfwnet. org/council�acket/mc_review. asp?refnum=C-22544 1 /10/2008