HomeMy WebLinkAboutContract 27102 {
Gj� b� CRY SECRETARY
10 CONTP
_CITY OF FORT WORTH
COMMUNICATIONS FACILITY LICENSE AGREEMENT
(EXISTING COMMUNICATIONS TOWER) +�
This COMMUNICATIONS FACILITY LICENSE AGREEMENT("Agreement") is
made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule
municipal corporation organized under the laws of the State of Texas, acting by and through
Charles Boswell, its duly authorized Assistant City Manager, and SPRINT SPECTRUM, L.P.
("Licensee"), a Delaware limited partnership acting by and through Sheila Garrison,Licensee's
Director of Site Development, South Central Region,who has been duly authorized by Licensee
to execute this Agreement, as evidenced by a certificate to that effect dated September 27, 2001
and signed by John W. Chapman,Licensee's Assistant Secretary/General Attorney.
Recitals
The following statements are true and correct and form the basis of this Agreement:
A. The City is the owner in fee simple of a parcel of land located in the City of Fort Worth,
Tarrant County, Texas ("Owned Premises"), as shown in Exhibit "A", attached hereto
and hereby made a part of this Agreement for all purposes.
B. The City owns a self-supporting tower ("Tower") located on the Owned Premises and
owns and operates certain communications facilities on the Tower.
C. Licensee wishes to use the Tower and a portion of the Owned Premises in order to install,
operate and maintain certain communications equipment of Licensee. The City is willing
to allow Licensee to use the Tower and a portion of the Owned Premises for such
purposes only in accordance with the terms and conditions of 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. LICENSED PREMISES.
The City, hereby grants Licensee the right to install, operate and maintain certain
communications equipment of Licensee, more specifically described herein, on the following
portions of the Owned Premises:
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1-1 Exclusive space on the Tower for Licensee's directional ,or omni antennae,
connecting cables and related appurtenances ("Antennae Facilities") as depicted on
Exhibit"A"; and
1.2. Exclusive space on the Owned Premises for Licensee's equipment shelter
("Equipment Shelter"), power and any necessary utilities, a 5'wide strip of land for
telephone service access, a 5'wide strip of land for electricity/power access and a
12'wide access road, all of which are shown on the Site Plan (pages A-1R, A-21t, D-9R
and D-13)set forth on Exhibit"A".
Nothing in this Agreement shall grant Licensee the right to place or install additional facilities or
equipment on the Premises other than as outlined in Exhibit "A" without the City's advance
written consent. All portions of the Owned Premises used by Licensee pursuant to this
Agreement shall hereinafter be referred to as the"Premises".
2. TERM OF AGREEMENT.
Initial Term.
Unless terminated earlier as provided in this Agreement, the initial term of this
Agreement shall commence on the date of execution ("Effective Date") and expire on
September 30,2006 ("Initial Term").
2.2. Renewal Terms.
Unless the City or Licensee exercise 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 allow the use of the Premises at the time, the City shall give
Licensee two (2) consecutive rights of first opportunity to renew its use of the Premises
on terms and conditions and at a License Fee 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 its use of the Premises not less than ninety (90) and not more than one
hundred twenty (120) days prior to the expiration of the term then in effect. If Licensee
fails to renew its use of the Premises 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 use
the Premises for a second Renewal Term.
Holdover.
If Licensee holds over after the expiration of any term of this Agreement,
Licensee shall pay the City one hundred fifty percent (150110) of the License Fee it was
paying to the City during the last month of the previous term of this Agreement,prorated
in accordance with the number of days that Licensee holds over. All conditions and
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provisions of this Agreement shall remain in full force and effect as to Licensee during
any holdover period.
3. LICENSE FEE.
Amount.
Licensee shall pay the City an annual license fee for its use of the Premises
("License Fee"). From the Effective Date of this Agreement until September 30, 2001,
the annual License Fee shall be equal to Twelve Thousand Dollars ($12,000.00) for the
first antenna placed on the Premises and One Thousand Two Hundred Dollars
($1,200.00) for each subsequent antenna that the City allows Licensee to place or install
on the Premises, prorated in accordance with the number of days for that period of time.
Thereafter, for (i) the remainder of the Initial Term and(ii) if the City does not specify a
different License Fee and adjustment schedule for a Renewal Term in accordance with
Section 2.2 of this Agreement, for any Renewal Term, the annual License Fee shall be
increased on October 1st of each year by four percent (4%) over the License Fee paid
during the immediately preceding Fiscal Period, as defined in Section 3.2.
3.2. 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 ist of a given year and
ends September 30th of the following year ("Fiscal Period"). Therefore, all annual
License Fee payments shall be due in full, at the appropriate address for the City set forth
in Section 23 of this Agreement, on or before the October 1st commencement date of a
respective forthcoming Fiscal Period. Payment of the prorated annual License Fee for the
period between the Effective Date of this Agreement and September 30, 2001 is due in
full upon the execution of this Agreement.
Late Fees.
If Licensee fails to pay any License Fee hereunder by the respective due date,
Licensee shall pay the City a late payment fee of ten percent(101/o)of the total balance of
License Fees owed in addition to the annual License Fee then due. Moreover, any
License Fees that Licensee owes the City and that are past due shall bear interest until
paid in full at the rate of two percent (2%) per month or the highest rate permitted by
applicable law, whichever is less. This Section 3.3 shall not constitute a waiver by the
City to exercise any other rights or remedies granted by this Agreement or by law.
3.4. Cumulative Nature.
The annual License Fees constitute payment by Licensee for the use of City-
owned property which is separate and apart from the Public Rights-of-Way. For
purposes of this Agreement, "Public Rights-of-Way" shall mean those areas on, below
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or above a public roadway, highway, street, public sidewalk, alley, waterway'or utility
easement in which the City has an interest, but shall not include (i) the airwaves above
such Public Rights-of-Way with regard to wireless telecommunications or (ii) any other
property_of the City. If Licensee has a franchise granted by the City or other written
_agreement with the City or legal right to use the Public Rights-of-Way, Licensee
understands and agrees that the terms and conditions of this Agreement and the License
Fees payable hereunder are separate and apart from the terms and conditions of such
franchise, other written agreement or applicable law. If Licensee is ,or becomes a
Certificated.Telecommunications Provider, as defined by Chapter 283 of the Texas Local
Government Code ("Chapter 283"), Licensee understands and agrees that Chapter 283
does not and shall not apply to or govern this Agreement in any way.
4. DEPOSIT.
Upon the execution of this Agreement, Licensee shall remit to the .City a
maintenance/damage deposit("Deposit"), in cash, equivalent to one-twelfth(1/12) of Licensee's
then-current annual License Fee. Licensee will not be entitled to any interest on the Deposit.
The City may draw from the Deposit to perform maintenance or repairs to the Premises that are
necessary because of Licensee's use of the Premises. If the City terminates this Agreement for
nonpayment of a License Fee or any other breach or default as provided hereunder, Licensee
understands and agrees that it shall forfeit the entire Deposit as liquidated damages, and not as a
penalty,to compensate the City for administrative time and expenses involved in the carrying out
and enforcement of such termination,which amount both Licensee and the City hereby agree is a
reasonable estimate of the damages that the City would incur as a result of such termination.
Otherwise, the City will refund to Licensee any unused portion of the Deposit within thirty (30)
days following the date that Licensee lawfully vacates the Premises.
5. USE OF PREMISES.
Notwithstanding anything to the contrary in this Agreement or any exhibit hereto, this
Agreement grants Licensee only a license to use the Premises and Owned Premises in
accordance with the terms and conditions of this Agreement and does not grant Licensee any
kind of easement or other real property interest in the Premises or any portion or all of the
Owned Premises or the Tower. 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 shall not utilize its Antennae Facilities to transmit to or receive
transmissions from communications equipment or any other facilities which are located in the
Public Rights-of-Way and owned by Licensee or a parent, subsidiary or affiliated entity of
Licensee unless(i)that entity has a written franchise or Public Right-of-Way use agreement with
the City that (a) allows the provision of the type of communications service being provided by
Licensee and (b) includes additional compensation to the City for the communications services
being provided by Licensee or (ii) Licensee is authorized by applicable law to use the Public
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Rights-of-Way for provision of the type of communications service being provided by Licensee
and is compensating the City.for such use in accordance with that law. Licensee hereby agrees
that its use of the Premises shall not interfere will the use of the Tower, the Owned Premises,
related facilities or other equipment of the City or other licensees. Licensee acknowledges that
this Agreement does not convey to Licensee or its successors in interest any exclusive rights.
6. INSTALLATION OF E UIPMENT CONSTRUCTION AND IMPROVEMENTS.
In General.
Licensee may not make any modification, renovation or improvement to or
engage in any other construction activity (collectively"IQiprovement") on the Premises
or Owned Premises unless the City provides advance written consent to Licensee, which
consent shall not be unreasonably withheld, delayed or conditioned. 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 City's Director of
Information Technology Solutions Department or his or her authorized representative
('Director"). All pians, 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, which approval shall not be unreasonably withheld,
delayed or conditioned.
Documents.
Licensee shall supply the Director with construction drawings of the Antennae
Facilities and any other improvements prior to their installation on the Premises and as=
built drawings of the Antennae Facilities and any other improvements within sixty (60)
calendar days following their installation on the Premises. Construction and as-built
drawings shall show the actual locations of all equipment and improvements consistent
with Exhibit "A". 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.
E ui ment Vmgrade.
Licensee may update or replace the Antennae Facilities from time to time with the
prior written approval of the City, provided that (i) the replacement facilities are not
greater in.number or 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.
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Bonds Required of Liceusee 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
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.
7. 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.
8. MAINTENANCE AND REPAIRS.
8.1. Painting of Antennae Facilities hy Licensee.
Licensee, at its sole cost and expense, shall at all times keep its Antennae
Facilities painted as specified in writing by the City.
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. Licensee shall keep the
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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.
8.3. 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
insurance 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,perforin 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
cost of such maintenance or repairs immediately upon receipt of an invoice from the City
that describes the maintenance or repairs the City performed.on Licensee's behalf.
Darna a 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,
subcontractors or invitees, to the City's satisfaction within ten (10) calendar days
following the date of such damage.
Maintenance by the Citv.
The City shall perform general maintenance to the Premises 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
andlor 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 lost profits, that may occur while it is performing routine
maintenance to the Premises.
9. ACCESS TO PREMISES.
9.1. By Licensee.
Licensee shall have reasonable access to the Premises by means of any existing
driveway over the Owned Premises; provided, however, that, except in an emergency,
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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 (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.
City Escort and Reimbursement of City Expenses.
The City, in its sole discretion, may require that Licensee and its contractors and
subcontractors shall be accompanied by City personnel designated by the Director or the
Director of the City's Water Department at any or all times that Licensee or a contractor
or subcontractor of Licensee is on the Owned Premises or Premises. Failure by Licensee
to abide by this requirement shall constitute a material breach of this Agreement.
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) calendar days following receipt of an invoice for such from the
City.
INTERFERENCE.
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. Upon actual notice of any interference, Licensee agrees to
cease any action on its part which_interferes with the City's use of the Tower or the
Owned Premises immediately and to take all reasonable and necessary steps to eliminate
interference. In the event of any interference that cannot be eliminated within twenty-
four (24) hours, the Cityand Licensee shall negotiate in good faith a plan and timetable
to eliminate the interference. If the interference cannot be eliminated within this agreed-
upon amount of time, or if the parties cannot agree to a timetable to eliminate the
interference, the City may terminate this Agreement following thirty (30) days' written
notice to Licensee; 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 the fraction whose
numerator is the number of days remaining in such Fiscal Period from the effective date
of termination and whose denominator is 365 (the"Refund Amount").
10.2. 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-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 which interferes with the respective Licensee's use of the Tower or
the Owned Premises. In such an event, the 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.
Interference and Engineering Studies.
Prior to the approval of the placement of Licensee's Antennae Facilities, or any
construction, modification, improvement or upgrade of such Antennae Facilities, the City
may obtain, at Licensee's sole cost and expense, an interference 'study in order to
determine whether Licensee's intended operations will interfere with any existing
communications facilities on the Tower. The City may also obtain, at Licensee's sole
cost and expense,an engineering study in order to determine whether the Tower is able to
Support structurally Licensee's Antennae Facilities. The City agrees to provide written
notice to Licensee of its intent to obtain any interference or engineering study and the
estimated cost of any such study prior to the performance thereof. 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.
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 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.
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. If the third party Licensee's
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operations on the Tower subsequently materially interfere with Licensee's operations,
Licensee may terminate this Agreement upon thirty (30) calendar days' written notice to
the City. Licensee's failure to make any objection within the thirty-day time .fame
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.
The,City may allow, at any time, a governmental unit, office or agency to use
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 or the
subsequent operations of the City 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.
11. RIGHTS AND RESERVATIONS OF THE CITY.
11.1.. 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
Tights-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 mariner as Licensee.
�,/1.2. The City may at anytime take whatever action it deems necessary, in its sole
discretion,to repair,maintain,alter or improve.the Premises or Owned Premises.
11.3. The City reserves the right to use or grant the use of other portions of the Tower
or the Owned Premises to third parties.
A.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 grant the 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 shall 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.
11.5. During any war or national emergency, the City shall have the right to allow the
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 any 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.
12. INSU gANCE.
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 business operations thereon:
12.1. Primary Liability Insurance Coverage.
• Commercial General Liability:
510,000,000 per occurrence for bodily injury and property damage and
providing contractual liability insurance for all written contracts;products and
completed operations; independent contractor's liability; and coverage for
property damage from perils of explosion or collapse;
Automobile Liabflity:
$2,000,000 per accident,
including,but not limited to,all vehicles,whether owned or hired,in use by
Licensee,its employees and agents;
• Worker's Compensation/Employer's Liability:
Worker's compensation coverage as required by law and endorsed with a
waiver of subrogation in favor of the City; and Employer's Liability at
$1,000,000 per occurrence.
12.2. Excess Liability Insurance Umbrella.
Coverage amounts set forth in Section 22.1, other than worker's compensation,
may be met by a combination of underlying and umbrella policies provided the combined I
limits meet or exceed the limits required by this Agreement.
1.2.3. Property Insurance.
Prior to the installation of the Antennae Facilities and related equipment described
in Exhibit "A", 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
maintain fire, extended coverage and vandalism and malicious mischief insurance, all at
full replacement cost limits, on the Antennae Facilities and the Premises.
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12.4. 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 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. If such
contractor's insurance is not satisfactory to the City,the City shall within five(5)business
days of delivery of the contractor's certificate of insurance provide Licensee with written
notification that such insurance is unacceptable. In this event, Licensee shall either
require the contractor to obtain insurance coverage that is.acceptable to the City or use
another contractor whose insurance is acceptable to the City. If the City does not notify
Licensee within five (5) business days that a contractor's insurance is unacceptable, the
City shall be deemed to have approved such contractor's insurance.
12.5. General Re uirements.
12.5.1. 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.
12.5.2. 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
changes to reduce policy limits or to cancel, terminate or non-renew
coverage shall be made without thirty (30) days' prior written notice to
the City. .
12.5.3. Licensee shall maintain its insurance with underwriters authorized to do
business in the State of Texas and who are 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.
12.5.4. Deductible or self-insured retention limits on any. line of coverage
required herein shall not exceed $25,000 per occurrence unless
otherwise approved by the City in writing.
12.5.5. All insurance policies other than those for worker's compensation shall
be written on an occurrence basis and not on a claims made basis.
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12.5.6. 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
13 or Licensee's liability obligation to indemnify the City as provided in
Section 14.
13. 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;
licensees and invitees. Licensee acknowledges that the doctrine of respondent superior shall not
apply as between the City and Licensee, its officers, agents, employees, contractors and
subcontractors. Licensee further agrees that nothing herein shall be construed as the creation of a
partnership or joint enterprise between the City and Licensee.
14. INDEMNIFICATION.
LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR
ANY DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROPERTY LOSS, PROPERTY
DAMAGE AND/OR PERSONAL INJURY OF ANY%IND, INCLUDING DEATH,.TO ANY
AND ALL PERSONS) OF ANY KIND OR CHARACTER, WHETHER REAL OR
ASSERTED, ARISING OUT OF OR IN CONNECTION WITH ITS USE OF THE
PREMISES OR OWNED PREMISES UNDER THIS AGREEMENT OR WITH THE USE,
OCCUPANCY, MAINTENANCE, EXISTENCE OR LOCATION-OF THE PREMISES OR
OWNED PREMISES, EXCEPT TO THE EXTENT CAUSED BY THE GROSS
NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY.
LICENSEE COVENANTS AND AGREES TO,AND DOES HEREBY, INDEMNIFY,
HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS
AND EMPLOYEES, FROMAND AGAINST ANYAND ALL CLAIMS OR LAWSUITS FOR
ANY DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE OR
LOSS, 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.THE USE, OCCUPANCY,
MAINTENANCE, EXISTENCE OR LOCATION OF THE PREMISES OR OWNED
PREMISES, EXCEPT TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF THE CITY.
LICENSEE ASSUMES ALL RESPONSIBILITY AND AGREES.TO PAY THE CITY
FOR ANY AND ALL INJURY OR DAMAGE TO THE OWNED PREMISES, INCLUDING
— 13_
THE TOWER AND OTHER PORTIONS OF THE PREMISES, WHICH ARISES OUT OF
OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS
OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
LICENSEES, INVITEES, PATRONS OR TRESPASSERS, EXCEPT TO THE EXTENT
CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE
CITY.
15. TERMINATION.
In addition to termination rights contained elsewhere in this Agreement, this Agreement
may be terminated as follows:
Failure by Licensee to Pay License Fees or Other Charges.
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.
Other Breach or Default by Licensee.
If Licensee commits any breach or default, other than Licensee's failure to pay
any Licensee Fees ox other charges due under this, Agreement, the City shall deliver
written notice to Licensee specifying the nature of such breach or default. Licensee shall
have thirty(30) calendar days following such written notice to cure, adjust or correct the
problem to the standard existing prior to the breach or default. If Licensee, in good faith
and after diligent and continuous efforts to remedy the breach or default within such time,
believes that it will need additional time to comply, it shall notify the City and, with
Licensee's input, the City shall determine and provide written notice to Licensee of a
reasonable deadline beyond the initial thirty (30) calendar days to cure, adjust or correct
the problem to the standard existing prior to the breach or default. If Licensee fails to
cure the breach or default within the time period prescribed by the City, the City shall
have the right to terminate this Agreement immediately.
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.
Failure by Licensee to Obtain or Maintain Necessary Licenses or Permits.
In the event that Licensee is unable to obtain or maintain any license, permit or
other governmental approval necessary for the construction and/or operation of the
Antennae Facilities or Licensee's communications business, Licensee may terminate this
Agreement upon thirty(3 0)calendar days' prior written notice to the City.
Damage to Premises or Owned Premises.
In the event that the Premises or Owned Premises are damaged by a casualty not
caused, in whole or in part, by Licensee, its officers, agents, employees, contractors,
subcontractors, licensees or invitees, and such damage materially affects Licensee's
communications business, Licensee may terminate this Agreement upon thirty(30) days'
prior written notice to the City, in which case the City shall refund to Licensee an amount
equal to the License Fee paid for the then-current Fiscal Period times the fraction whose
numerator is the number of days remaining in such Fiscal Period from the date of
casualty and whose denominator is 365. The City shall have no obligation to repair any
damage to any portion of the Premises or the Owned Premises.
Feasibility Period.
Licensee may, upon written notice to the City, tenninate.this Agreement within
sixty(60) calendar days of the Effective Date of the Initial Term if Licensee, in its sole
but reasonable discretion, is not satisfied with the title, environmental or structural
analysis of the Premises and is unable to utilize the Premises for Licensee's particular
purposes. Licensee, at Licensee's sole cost and expense, shall be solely and exclusively
responsible for any such title, environmental or structural analyses. Licensee agrees to
provide the City with a.copy of any such analyses upon their completion. In the event of
termination by Licensee pursuant to this Section 15.6, the City shall reimburse Licensee
the prorated amount of any License Fees paid in advance by Licensee.
Rights of the City Upon Termination or Expiration of Agreement.
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 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
ail 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 from
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 take full possession of the
Premises,by force if necessary, and to remove any and all parties and property remaining
on any part of the Premises. If the City removes any Antennae Facilities, equipment or
personal property remaining on the Premises following the effective date of termination
or expiration, the City shall notify Licensee and shall store the Antennae Facilities,
equipment and personal property for a period not to exceed thirty (30) days. Licensee
may recover the Antennae Facilities. Equipment and personal property within this thirty
(30)-day time period after paying the City for the cost of removal and storage. If
Licensee fails to recover the Antennae Facilities, equipment or personal property within
this thirty (30)-day time period, the City shall have the right to take full title thereto.
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.
16. 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. 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; provided, however, that Licensee
shall have the right to claim and recover from the condemning authority, but not from the City,
compensation that may be separately awarded or recoverable by Licensee on account of any
damage Licensee may incur as a result of the condemnation.
17. ASSIGNMENT AND SUBLETTING.
Except as provided in Section 17.1, Licensee may not assign, transfer, sell or otherwise
convey any of its rights, privileges, duties or interests granted to Licensee by this Agreement
unless the City provides advance written consent, which consent shall not be unreasonably
withheld or delayed. Any attempted assignment,transfer, sale or other conveyance of which the
City has not provided advance written consent shall be null and void and shall constitute a
material breach of this Agreement by Licensee.
17.1 Affiliates.
Licensee may assign or transfer any of its rights, privileges, duties or interests
granted to Licensee by this Agreement to a parent, subsidiary or affiliated corporation of
_ 16—
Licensee or to any entity which acquires all or substantially all of Licensee's assets in the
market defined by the Federal Communications Commission in which the Premises are
located by reason of a merger, acquisition or other business reorganization, provided that
(i)Licensee notifies the City in writing at least thirty(30) days prior to the effective date
of such assignment and (ii) the assignee enters into a written agreement with 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.
17.2. Other Assignments.
In the event that Licensee wishes to assign, transfer, sell or otherwise convey all
or any portion of Licensee's rights,privileges, duties and interests granted to Licensee by
this Agreement,Licensee shall notify the City in writing. As a condition precedent to the
effectiveness of the City's consent to such an assignment or transfer, the assignee or
transferee shall enter into a written agreement with the City in which the assignee or
transferee 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. The failure or refusal of the City to approve a requested
assignment shad not relieve Licensee of Licensee's obligations hereunder, including,but
not limited to,payment of License Fees and other charges.
18. 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 sante 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 tenninate 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.
19. TAXES AND ASSESSMENTS.
Licensee agrees to pay any and all federal, state or local taxes or assessments which may
lawfully be levied against Licensee due to (i) 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-
- 17—
20. 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. 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.
21. 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.
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 analleged
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.
22. 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 and maintain any federal, state or local licenses and permits required
oz substantially required by Licensee's use of the Premises.
23. 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,
emplgyees, servants or representatives, (ii)delivered by facsimile with electronic confirmation of
the transmission, or (iii) received by the other party by United States Mail, registered, return
receipt requested, addressed as follows:
To THE:CITY:
For License Fees and Other Charges: For All Other Matters:
City of Fort Worth City of FortWorth
Attn: ITS Dept.Director Attn: ITS Dept. Director
1000 Throckmorton 1000 Throckmorton
Fort Worth TX 76102 Fort Worth TX 76142
Facsimile: (817) 871-8551
and
City of Fort Worth
Attn: Water Dept.Director
1000 Throckmorton
Fort Worth TX 76102
Facsimile(817) 871-8195
To LICENSEE:
Sprint Spectrum,L.P.
1341 W.Mockingbird Ln.
Suite 600E
Dallas TX 75247
Facsimile: 214-688-5883
24. ACCEPTANCE OF PREMISES.
Licensee acknowledges that it has inspected the Premises and Owned Premises and is
Bully 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.
25. 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.
- 19-
26. 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
of the City's or Licensee's right to insist upon appropriate performance or to assert any such right
on any future occasion.
27. 'VENUE.
Should any action,whether real or asserted, at law or in equity, arise out of the terms of
this 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.
28. 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.
29. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired.
30. FORCE MAJEURE.
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.
—24--
31. HEADINGS NOT CONTROLLING.
Headings and titles used in this Agreement are for reference purposes only and shall not
be deemed a part of this Agreement.
32. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, 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's City Council.
TTNESS ME OF, the parties hereto have executed this Agreement in multiples
this—A. day of , 2001.
CITY OF FORT WORTH: SPRINT SPECTRUM L.P.,
a Delaware limited partnership:
f r
9A OA
By: _ By:
Charles Boswell Sheila Garrison
Assistant City Manager Director of Site Development
South Central Region
ATTEST: ATTEST:
l '
A
By: By:
.City cretary
Contract Authorization
Date
C NR,V1 spy
4
R. VEIN
APPROVED AS TO FORM AND LEGALITY;
Assistant City Atto
M&C:- C-/ 67 2 7-17-DI
r 1
SSLP NOTARY BLOCK:
STATE OF
COUNTY OF �'wC
The foregoing instrument was acknowledged before me this ilY' -, day of. ,by
ofQ
Sprint Spectrum L.P.,a Delaware limited partnership,who executed the foregoing instrument on behalf of such corporation. .
(AFFIX NOTARIAL SEAL) PFICIAL T -KIATI ID=AM-
NOTARY P ATE
* NOTARY PUBLIC
BrAts cc Texas
-/
OF Ocala. ZV. 07-02-2002
My commission expires: � (PRINTED,TYPED OR STAMPED.NAME OF NOTARY)
STATE OF
COUNTY OF 4 �ARMA):r _
The foregoing instrument was acknowledged before me this day of I CsiU -t�,by
(AFFIX AL (OFFICIAL NOTARY SIGNATURE)
ROSELIA BARNES NOTARY PUBLIC—STATE OF
NOTARY PUBLIC
State of'Texas
Comm.Exp.03-31-2006
My commission expires: o:3-31- oS {PRINTED,TYPED OR STAMPED NAME OF NOTARY)
AWRII IadN)
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FT.Ili 1TH 1 i