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HomeMy WebLinkAboutRES 2005-058 RESOLUTION NO. 2005-58 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS, APPROVING A TOWER/GROUND LEASE AGREEMENT WITH FIBERTOWER CORPORATION FOR THE INSTALLATION OF COMMUNICATIONS EQUIPMENT AND PROVIDING AN EFFECTIVE DATE WHEREAS, on November 15, 2005 the City of Grapevine (hereinafter referred to as "Landlord") is in agreement to enter into a Tower/Ground Lease Agreement with FiberTower Corporation, a corporation organized and existing under the laws in Delaware (hereinafter referred to as "Tenant"); and WHEREAS, the Landlord and the Tenant desire to enter into said Tower/Ground Lease Agreement through the installation of communications equipment on the Barton Street Water Tower and through the installation of an equipment shelter, and according to specific compensation terms; and WHEREAS, the terms of the agreement are attached as Exhibit "A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS: Section 1. That all matters stated in the preamble of this resolution are true and correct and are hereby incorporated into the body of this resolution as if copied in their entirety. Section 2. The City Manager is hereby authorized to enter into said Tower/Ground Lease Agreement as attached as Exhibit "A". Section 3. That all matters stated in the preamble of this resolution are true and correct and are hereby incorporated into the body of this resolution as if copied in their entirety. Section 4. That this resolution shall take effect from and after the date of its passage. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this the 15th day of November, 2005. APPROVED: - T Ted R. Ware Mayor Pro Tern ATTEST: .0444. Huff City Secretary APPROVED AS TO FORM: John F. Boyle, Jr. City Attorney RES, NO. 2005-58 2 Page _L_ of GROUND/TOWER LEASE AGREEMENT TERMS CITY OF GRAPEVINE AND FIBERTOWER CORPORATION BARTON STREET WATER TOWER 1. Compensation Provisions Established on Graduated Scale Per the Number of Dishes Installed on Tower: a. 1st Dish = $6,000 annually ($6,000 total) b. 2nd Dish = $4,000 annually ($10,000 total) c. 3rd Dish = $4,000 annually ($14,000 total) d. 4th Dish = $4,000 annually ($18,000 total) 2. 25 year lease agreement in 5 year renewal terms. 3. Renewal terms subject to lease increase of 15% or the CPI whichever is greater. 4. Ground Equipment 5. Equipment to be installed in `dead space' of antennae array currently installed on tower. 1-13... E-5• 5 5� Page _ of . 1 q GROUND AND TOWER LEASE AGREEMENT THIS GROUND AND TOWER LEASE AGREEMENT ("Lease"), is entered into as of this 15t day of November, 2005, by and between The City of Grapevine Texas ("GRAPEVINE"), a home-rule municipal corporation, and FiberTower Corporation being a corporation organized and existing under the laws of the State of Delaware,and authorized to do business in Texas ("TENANT"). In consideration of the premises and of the mutual obligations and agreements in this Lease, the parties agree as follows: THE LEASED SITE A. GRAPEVINE is the titleholder of that certain real property commonly known as the Barton Street water Tower 211 West Texas Street, City of GRAPEVINE, County of Tarrant, State of Texas,which is described on the attached Exhibit"A"("OWNER'S Property"). B. TENANT hereby desires to lease a portion of OWNER'S Property and a certain portion of the tower ("Tower") located on OWNERS' Property (the "Leased Site"), together with obtaining a right of access and a right to install utilities on the Leased Site. The Leased Site which is the subject of this Lease is located within OWNERS' Property, is approximately 750 square feet, and is situated substantially as shown on the attached Exhibit `B" and with respect to the space on the Tower, its location and orientation are set forth on the attached Exhibit"C" (any sketch in Exhibits `B" or"C" may not be to scale and therefore are not intended to be used for measurement purposes). TENANT shall have the right to run cables, wires, conduits and pipes under, over and across OWNERS' Property to connect TENANT's equipment on the Tower to its equipment in its facility located on the Leased Site, subject to the approval of GRAPEVINE as provided for in Section 4.A. of this Lease. GRAPEVINE hereby grants to Tenant the right to use OWNERS' Property when Tenant is constructing, operating, removing, replacing, servicing, securing, or maintaining its communications facility, subject to the terms and conditions contained herein. 2. LEASE AND EASEMENT GRAPEVINE leases the Leased Site to TENANT and agrees that Tenant shall have access to the Leased Site for the purposes of constructing, installing, operating and maintaining the communications facility, and to install, remove, replace, and maintain utility cables, conduits and pipes, and during the continuation of this agreement, and any renewals thereof, ingress and egress is hereby granted to Tenant seven(7) days a week, twenty-four(24) hours a day. It is agreed, however, that only authorized engineers, employees, or properly authorized contractors, subcontractors, agents of Tenant or GRAPEVINE, FCC inspectors, or persons under their direct supervision, will be permitted to enter the Leased Site. 3. TERM AND RENT A. The initial term of this Lease (`the Initial Term") shall be five years and shall commence on the date first noted above. TENANT shall pay GRAPEVINE in accordance with the following rate schedule (the "Rate Schedule"): Number of Microwave Dishes Annual Rental(Initial Term) One dish $6,000 (Six Thousand Dollars) Two dishes $10,000 (Ten Thousand Dollars) Three dishes $14,000(Fourteen Thousand Dollars) Four dishes $18,000(Eighteen Thousand Dollars) The rent as determined by the Rate Schedule for one dish shall be the six thousand dollars ($6,000) as full ,, rental per annum for the initial Term(the "Rent"). The first Annual payment of Rent(the"Initial Payment") shall be payable within thirty(30)days of the Commencement Date. Subsequent Annual Payments shall be payable on or before the anniversary date of the Lease of each year. If TENANT increases the number of dishes after the EXHIBIT� T eF5, 105-5V Page , of 19 annual payment of Rent has been tendered, 'TENANT shall pay a pro-rated amount in accordance with the Rate Schedule, and such payment shall be payable within thirty (30) days of installment of subsequent dish(es). All payments due under this Agreement shall be sent to GRAPEVINE's address indicated under Section 12 below, to the attention of the City Manager. B. Thereafter, unless TENANT advises GRAPEVINE in writing not less than ninety (90) days prior to the expiration of the Initial Term or any extension period that it does not desire additional extensions,this Lease shall automatically renew and extend for up to four(4) additional five (5)year extension periods, each beginning upon the expiration of the term then in effect. C. The Annual Rent for each extension period (after the Initial Term) shall be the Annual Rent in effect for the fmal year of the prior extension period, increased by either fifteen percent(15%) or the percentage increase in the Consumer Price Index(CPI)over the previous five year period,whichever is greater. D. Should this Lease still be in effect at the conclusion of all of the extension periods provided for herein, this Lease shall continue in effect on the same terms and conditions [other than Annual Rent which shall be an amount equal to the one twelfth (1/12) of the Annual Rent in effect for the preceding year, increased by three percent (3%)] for a further period of one (1) month, and for like monthly periods thereafter, until and unless terminated by either party by giving to the other written notice of its intention to so terminate at least thirty (30) days before the expiration of the term then in effect. E. TENANT hereby agrees to supply GRAPEVINE a performance bond in the amount of Six Thousand Dollars ($6,000) for the sole purpose of assuring TENANT's payment of all sums that may become due to GRAPEVINE under this Lease (including without limitation, any and all Rent), as well as the performance of all obligations under this Lease. In the event that TENANT fails either to pay GRAPEVINE any sum of money due under this Lease or to perform any obligation required of TENANT under this Lease, GRAPEVINE shall provide TENANT written notice of such failure, together with sufficient documentation of the amount that is due or the obligation that needs to be performed(the"Late Notice"). If TENANT has not paid the sum within ten(10)days, or performed the obligation within sixty(60)days, after the date of the Late Notice, GRAPEVINE may access the bond upon thirty(30)days' prior written notice to TENANT. TENANT shall keep the performance bond in place throughout Initial Term and any extension periods of this Lease. 4. USE OF THE LEASED SITE A. 'TENANT may use the Leased Site to construct, operate, remove, replace, service, maintain, secure and operate a communications facility, including, without limitation, required TENANT antenna array (as such antenna array may be modified, added to, or substituted from time to time)and antenna support structures, and for any other uses incidental thereto. The placement of first equipment dish shall be positioned as noted in Exhibit C. The additional dishes may only be placed on the tower on same array level or in accordance with the non- interference provisions in the proceeding subsections. TENANT may construct a fence around the Leased Site, subject to GRAPEVINE's approval, said approval not to be unreasonably withheld. Each such antenna array or antenna support structure may be configured as requested by TENANT from time to time, provided TENANT obtains, pursuant to sub-paragraph 8, all permits and approvals required by applicable jurisdictions for such requested configuration. GRAPEVINE shall have the right to approve plans for any improvements, including any fence or antennae array, installed by TENANT on the Leased Site, such approval not to be unreasonably withheld; provided that GRAPEVINE must notify TENANT of its approval or disapproval of any such plans within ten(10) days after the submission of such plans by TENANT to GRAPEVINE, and in the event that GRAPEVINE fails to so notify TENANT, that party shall be deemed to have approved such plans. GRAPEVINE shall be notified in writing about any scheduled construction times and major repair times unless an emergency exists. (1) TENANT covenants and agrees that Tenant's equipment, its installation, operation, and maintenance will not interfere with the operation of existing radio or electronic equipment at the Leased Site, nor the operation of the elevated water storage facility located on OWNERS' Property described in Exhibit "A" herein. 2 Page of . l (2) TENANT shall coordinate with GRAPEVINE and all existing operators of radio equipment at the Tower to insure that TENANT's frequencies and antenna location will be compatible with equipment existing at the Leased Site on the effective date of this Agreement. (3) In the event there is harmful interference to the existing radio or electronic equipment on Owner's Property TENANT shall promptly make all reasonable efforts to eliminate any harmful interference, if caused by TENANT's equipment, within ten (10) days after notice from GRAPEVINE or such other operator to TENANT advising of the interference. (4) If said interference to said existing operator cannot be eliminated within thirty (30) days, TENANT shall suspend operations (transmissions) at the site while the interference problems are studied and a means is found to mitigate them. (5) If said interference cannot be eliminated,then"TENANT shall,without further penalty or liability, terminate this Lease upon immediate notice to GRAPEVINE and within thirty days remove its equipment shelter, antenna facilities, concrete pads, cables, generators, fences, and any other TENANT-owned equipment from the Leased Site. (6) If any interference occurs to GRAPEVINE's public safety transmission, whether existing or subsequent as long as GRAPEVINE is operating in compliance with applicable laws, and is caused by TENANT, TENANT will immediately cease all operations until the interference is cured. (7) From time to time GRAPEVINE may grant to other entities the right to operate communications facilities at the Tower and/or the right to install antennas in connection with the operation of such facilities or other communications facilities; provided, however that the operation of such facilities and antennas by other occupants shall be required to comply with all of the requirements contained herein relative to TENANT'S equipment. TENANT further agrees that it will comply with all applicable rules and regulations of the Federal Communications Commission, and electrical codes of the City and/or State. Under this Lease, GRAPEVINE assumes no responsibility for the licensing, operations and/or maintenance of Tenant's equipment. TENANT'S right to use the Tower shall not interfere with GRAPEVINE's superior right to use the same as an integral part of the City's water system. (8) GRAPEVINE acknowledges that TENANT's ability to use the Leased Site for its intended purposes is contingent upon TENANT's obtaining and maintaining, both before and after the Commencement Date, all of the certificates, permits, licenses and other approvals (collectively, "Governmental Approvals") that may be required by any federal, state or local authority for the foregoing uses and improvements to the Leased Site desired by TENANT. GRAPEVINE shall cooperate with 'TENANT in TENANT's efforts to obtain such Governmental Approvals and shall take no action that would adversely affect TENANT's obtaining or maintaining such Governmental Approvals. Should GRAPEVINE be notified or cited by any State or Federal regulatory agency that OWNERS' Property is not in compliance with said agencies regulations due to TENANT's installation of improvements under this Lease, GRAPEVINE will immediately notify TENANT of said non- compliance and if TENANT does not cure the conditions of non-compliance within the time frame allowed by the citing agency, GRAPEVINE may terminate this Lease. 5. TERMINATION A. In the event any application for certificate, permits, licenses or other approvals will be too costly, time consuming or there is a reasonable likelihood that said application will be rejected in the opinion of TENANT or any certificate, permit, license, or approval issued to TENANT is canceled, expires or lapses or is otherwise withdrawn or terminated by governmental authority or soil boring tests and/or environmental studies are found to be unsatisfactory so that TENANT, in its sole discretion determines that it will be unable to use the Leased Site for the purposes set forth herein, TENANT shall have the right to terminate this Lease. Prior written notification to GRAPEVINE of TENANT'S intent to exercise its right to terminate this Lease shall be by certified mail,return 3 EXHIBIT—R._ TO Page 6 of receipt requested, and shall be effective upon receipt of such notice by GRAPEVINE as evidenced by the return receipt.Any Annual Rent paid to such termination date shall be retained by GRAPEVINE. B. In addition, and provided that TENANT is not then in default under this Lease, TENANT may, during the Initial Term or any extension period, upon one (1) year's written notice to GRAPEVINE, terminate and cancel this Lease if TENANT determines that the Leased Site has become unsuitable for TENANT's operations, upon payment in cash to GRAPEVINE of a termination fee equal to six(6)months' rent at the rate then in effect. As to such termination fee, TENANT shall receive a credit equal to the amount of any unearned rent as of the date of such termination. This Lease may be terminated by either party upon forty-five (45) days' prior written notice to the other party upon a default of any material covenant or term hereof by the other party which is not cured within forty-five (45) days of receipt of written notice of default; or, if such default is not curable within forty-five (45) days, if the defaulting party fails to commence such cure within forty-five(45)days or fails thereafter diligently to prosecute such cure to completion; provided that the grace period for any monetary default shall be ten (10) days from receipt of notice. This Lease may also be terminated by TENANT on at least forty-five(45) days' prior written notice to GRAPEVINE if(i)TENANT is unable to obtain any requisite permit or authorization or any such permit or authorization is subsequently revoked or not renewed; (ii)any physical equipment or electronic emissions materially interfere with the operation of the Communication Equipment. 6. ASSIGNMENT AND SUBLETTING A. Except to a "Partner Company", "Affiliate" or "Subsidiary" of TENANT or an "Affiliate" or "Subsidiary" of a "Partner Company" of TENANT (as defined below), TENANT shall not assign this Lease, or allow it to be assigned, in whole or in part, by operation of law or otherwise, or mortgage or pledge the same, or sublet the Leased Site, or any part thereof, without the prior written consent of GRAPEVINE, such consent not to be unreasonably withheld or delayed. GRAPEVINE's consent to an assignment or sublease shall be deemed given if GRAPEVINE does not respond to TENANT's request within thirty (30) days after GRAPEVINE's receipt of such request. B. Each of the partners of TENANT is a Partner Company. An Affiliate of an entity is any entity fifty-one percent (51%) or more of the ownership of which is owned, directly or indirectly, by such entity or under common ownership with such entity. A Subsidiary of an entity is any entity eighty percent(80%) or more of the ownership of which is owned by such entity. C. No consent by GRAPEVINE to any assignment or sublease by TENANT shall relieve TENANT of any obligation to be performed by 'TENANT under this Lease, whether arising before or after the assignment or sublease. The consent by GRAPEVINE to any assignment or sublease shall not relieve TENANT from the obligation to obtain GRAPEVINE's express written consent to any other assignment or sublease. D. Any sale or other transfer, including by consolidation, merger or reorganization, of a majority of the voting stock of TENANT, if TENANT is a corporation, or any sale or other transfer of a majority in interest (whether of profits, losses, capital or voting power) or a majority of the persons comprising the managers of the partnership, if TENANT is a partnership, shall not be an assignment for purposes of this Paragraph 6. E. Notwithstanding anything to the contrary contained in this lease, TENANT may assign,mortgage,pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom TENANT (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. 7. EQUIPMENT AVAILABILITY GRAPEVINE needs the ability to temporarily remove any equipment or facilities in order to maintain the Tower on the Leased Site. Cost to remove any TENANT equipment or facilities would be borne by TENANT. Removal 4 ENI-EalT Tq S•X6,5- Page (0 of of TENANT'S equipment shall be performed by TENANT on ninety (90) days prior written notice from GRAPEVINE. Reattachment of TENANT'S facilities or equipment shall be by TENANT on notice from GRAPEVINE that the maintenance which necessitated the equipment or facilities removal has been completed. TENANT must notify GRAPEVINE prior to entering the Tower or climbing or scaling the Tower by contacting the City. TENANT will not be provided unattended access to the Tower. GRAPEVINE will provide TENANT with a contact person to ensure that TENANT has twenty-four hour, seven days a week, access to the Tower. During any period of GRAPEVINE's maintenance that requires the removal of lENANT'S equipment or facilities from said Tower, GRAPEVINE shall allow TENANT to place a portable mounted antenna, a.k.a. "Cell On Wheels" (COW), on OWNERS' Property in order for TENANT to provide continuous wireless telecommunications service. There shall be no additional fee or rental due GRAPEVINE for this temporary placement. A Special Use Peimit may be required to place this temporary equipment on this site. Only officials with the F.C.C. and qualified and adequately insured agents, contractors or persons under TENANT'S direct supervision will be permitted to climb or scale the Tower or to install or remove TENANT'S equipment or facilities from the Tower. GRAPEVINE retains the right to permit their own employees and agents and employees and agents of subsequent users of the Tower, to climb or scale the Tower for all purposes that do not interfere with TENANT'S use of the Tower, and so long as such subsequent user complies with the terms of this Lease. 8. INDEMNIFICATION AND INSURANCE A. TENANT hereby agrees to indemnify, defend, and hold GRAPEVINE, its officials, employees, and agents harmless from and against any and all claims of liability for personal injury, bodily injury, death or property damage, including attorney's fees, to the extent that they result from or arise out of (i) the acts or omissions of TENANT, its agents and employees in, on or about the Tower and/or the Leased Site, excepting however, such claims or damages to the extent due to or caused by the acts or omissions of GRAPEVINE, its employees or agents, (ii) TENANT's breach of any term or condition of this Lease on TENANT's part to be observed or performed and/or(iii)TENANT'S action or inaction relative to this Lease. B. GRAPEVINE hereby agrees to separately release and hold, to the extent allowed by law, TENANT harmless from and against any and all claims of liability for personal injury, bodily injury, or property damage to the extent that they result from or arise solely out of(i) the acts or omissions of GRAPEVINE, its agents and employees in, on or about the Tower and/or the Leased Site, excepting, however, such claims or damages to the extent due to or caused by the acts or omissions of TENANT, its employees or agents, and/or(ii) GRAPEVINE's respective breach of any term or condition of this Lease on GRAPEVINE'S part to be observed or performed. C. TENANT shall provide GRAPEVINE with a certificate of insurance issued by an insurance company licensed to do business in Texas indicating that TENANT carries commercial general liability insurance with limits of liability thereunder of not less than $1 million combined single limit for personal injury, bodily injury, or property damage together with an endorsement for contractual liability. Such shall name GRAPEVINE as an additional insured with respect to the Leased Site. TENANT will provide GRAPEVINE with a renewal certificate within ten (10) business days of GRAPEVINE's written request for such certificate. Any insurance required to be provided by TENANT under this Paragraph 8 may be provided by a blanket insurance policy covering the Leased Site and other locations of TENANT, provided such blanket insurance policy complies with all of the other requirements of this Lease with respect to the type and amount of insurance required. TENANT may also fulfill its requirements under this Paragraph 8 through a program of self-insurance provided that GRAPEVINE approves of said program. If TENANT elects to self-insure, then TENANT shall furnish GRAPEVINE with a letter stating that there is a self-insurance program in effect that provides for the same, or greater, coverage than required of'IENANT herein. D. TENANT shall carry comprehensive auto insurance covering Tenant and the additional insureds against all claims for injuries to members of the public and damage to property of others arising from the use of motor vehicles, and shall cover operation on and off the Leased Site of all motor vehicles licensed for highway use, 5 EX:11511_13._ TO k&S•d'5 5� Page _'_ of whether they are owned, non-owned, or hired. The liability coverage shall not be less than $1 million combined single limit for bodily injury and property damage. 9. UTILITIES TENANT shall be responsible directly to the serving entities for all utilities required by'lENANT's use of the Leased Site, however, GRAPEVINE agrees to cooperate with TENANT in its efforts to obtain utilities from any location provided by GRAPEVINE or the servicing utility. If the Power Sharing Arrangement terminates, TENANT will install an electric meter for its utility services and TENANT shall pay all costs related to said electric service. 10. RIGHTS TO EQUIPMENT; CONDITION ON SURRENDER TENANT's antennas and equipment shall remain personal to and the property of TENANT. At the termination or expiration of this Lease, TENANT shall remove its antennas and/or equipment. TENANT(i) shall repair any damage caused by such removal, (ii)with respect to any land leased shall remove all of its equipment, and (iii) shall otherwise surrender the Leased Site at the expiration of the term (as the same may have been extended or the earlier termination thereof) in good condition and at a minimum, as nearly as is reasonably possible to its condition at the time of the execution of this Lease, ordinary wear and tear excepted. At the end of this Lease,TENANT may offer to sell its antennas and/or equipment to GRAPEVINE. GRAPEVINE waives any lien rights it may have concerning TENANT's antennas and equipment, which are deemed TENANT's personal property and not fixtures, and TENANT has the right to remove the same at any time without GRAPEVINE's consent. GRAPEVINE acknowledges that TENANT has or may enter into a financing arrangement including promissory notes and financial and security agreements for the fmancing of the TENANT's antennas and equipment (the "Collateral") with a third party fmancing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, GRAPEVINE (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings. 11. TENANT DEFAULTS A. The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder by TENANT: (1) The failure by TENANT to make any payment of rent or any other payment required to be made by TENANT hereunder,as and when due,where such failure shall continue for a period of ten(10)days after written notice thereof is received by TENANT from GRAPEVINE. (2)The failure by TENANT to observe or perform any of the covenants or provisions of this Lease to be observed or performed by 'TENANT, other than as specified in Paragraph 11.A. (1), where such failure shall continue for a period of thirty(30) days after written notice thereof is received by TENANT from GRAPEVINE; provided, however, that it shall not be deemed an Event of Default by TENANT if'TENANT shall commence to cure such failure within said thirty(30)day period and thereafter diligently prosecutes such cure to completion. (3) Tenant is adjudicated as bankrupt or makes any assignment for the benefit of creditors; or if Tenant becomes insolvent or GRAPEVINE reasonably believes itself to be insecure. 6 EN 1151 T KES.X6135-5 Page of 19 B. If there occurs an Event of Default by TENANT, in addition to any other remedies available to GRAPEVINE at law or in equity, GRAPEVINE shall have option to terminate this Lease and all rights of TENANT hereunder. C. If there occurs an Event of Default by TENANT, GRAPEVINE shall not have the right, prior to the termination of this Lease, to re-enter the Leased Site and/or remove persons or property from the Leased Site or the Tower and either (a) declare this Lease at an end, in which event TENANT shall immediately remove the Antennae Facilities and pay GRAPEVINE a sum of money equal to the total of(i) the amount of the unpaid rent accrued through the date of termination; (ii) the amount by which the unpaid rent reserved for the balance of the term exceeds the amount of such rental loss that the TENANT proves could be reasonably avoided (net of the costs of such reletting); and (iii) any other amount necessary to compensate GRAPEVINE for all detriment proximately caused by TENANT's failure to perform its obligations under the Lease, or (b) without terminating this Lease, relet the Leased Site, or any part thereof, for the account of TENANT upon such terms and conditions as GRAPEVINE may deem advisable, and any monies received from such reletting shall be applied first to the expenses of such reletting and collection, including reasonable attorneys' fees, any real estate commissions paid, and thereafter toward payment of all sums due or to become due to GRAPEVINE hereunder, and if a sufficient sum shall not be thus realized to pay such sums and other charges, TENANT shall pay GRAPEVINE any deficiency monthly, notwithstanding that GRAPEVINE may have received rental in excess of the rental stipulated in this Lease in previous or subsequent months, and GRAPEVINE may bring an action therefor as such monthly deficiency shall arise. D. In an Event of Default, which is not cured under Paragraph 11 herein, TENANT shall have an additional thirty (30) days from the effective date of termination to remove all of TENANT's equipment from the Leased Site. 12. NOTICES All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or to any other mailing address which the party to be notified may designate to the other party by such notice) or as otherwise provided under applicable state law. Notice by any other method (whether by hand-delivery, overnight delivery service, or otherwise) shall only be deemed effective upon receipt by the intended recipient. Should GRAPEVINE or TENANT have a change of address, the other party shall immediately be notified as provided in this Paragraph of such change. Unless GRAPEVINE otherwise specifies in writing, rent checks from TENANT shall be sent to the person listed below to whom notices are sent. TENANT: FiberTower Corporation 720 Avenue F,Suite 109 Plano,Texas 75074 Attention:Real Estate Telephone Number: (972) 543-6013 OWNERS: The City of GRAPEVINE, Texas, a With a copy to: municipal corporation Boyle&Lowry, L.L.P. Attn: Office of the City Manager Attn: L. Stanton Lowry Address: P.O.Box 95104 4201 Wingren, Suite 108 GRAPEVINE,Texas 76099 Irving, Texas 75062 Telephone Number: (817)410-3105 Telephone Number: (972)650-7100 Facsimile Number: (817)410-3002 Facsimile Number: (972)650-7105 7 E Ial . T- &5. a665 58 Page . of 13. SALE OR TRANSFER BY GRAPEVINE Should GRAPEVINE, at any time during the term of this Lease, sell, lease,transfer or otherwise convey all or any part of OWNERS' Property to any transferee other than TENANT, then such transfer shall be under and subject to this Lease and all of TENANT's rights hereunder. 14. HAZARDOUS SUBSTANCES A. GRAPEVINE warrants and agrees that to its knowledge, neither GRAPEVINE or any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material(as defined in Paragraph 14.B.)on,under, about or within OWNERS' Property in violation of any law or regulation. GRAPEVINE and TENANT each agree that they will not use, generate, store or dispose of any Hazardous Material(as defined in Paragraph 14.B.)on,under, about or within OWNERS' Property in violation of any applicable law or regulation. TENANT agrees that it will conduct all of its operations and activities on the Leased Site in compliance with all applicable environmental laws. B. GRAPEVINE and TENANT each agree to defend and indemnify,to the extent allowed by law, the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any warranty or agreement contained in Paragraph 14.A. As used in Paragraph 14.A., "Hazardous Material" shall mean any substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation (including petroleum and asbestos). 15. CONDEMNATION A. In the event the whole of OWNERS' Property, including without limitation the Leased Site and the Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then this Lease shall forthwith automatically cease and terminate. B. GRAPEVINE shall receive the entire condemnation award for land, the Tower and such other improvements as are paid for by GRAPEVINE, and TENANT hereby expressly assigns to GRAPEVINE any and all right, title and interest of TENANT now or hereafter arising in and to any such award. TENANT shall have the right to recover from such authority, but not from GRAPEVINE, any compensation as may be awarded to TENANT on account of the leasehold interest, moving and relocation expenses, and depreciation to and removal of the personal property and fixtures of TENANT. 16. TAXES A. TENANT shall be liable for and shall pay to the applicable taxing authority if billed directly to TENANT, or to GRAPEVINE if billed to GRAPEVINE, upon thirty(30) days prior written notice from GRAPEVINE, any and all taxes and assessments levied against any personal property or trade or other fixtures placed by TENANT in or about the Leased Site. B. TENANT shall pay as additional rent any increases in real property taxes levied against GRAPEVINE's Property, including the Tower, as a result of the improvements constructed by TENANT on the Leased Site. TENANT will not be responsible for any increases in real property taxes that are a result of reassessment of OWNERS' Property due to any sale or transfer of ownership thereof. As a condition of TENANT's obligation to pay such tax increases, GRAPEVINE shall provide 'TENANT with documentation from the taxing authority representing the amount owed. 17. QUIET ENJOYMENT AND NON-INTERFERENCE 8 ahH 3 1 -10,f.; 5. • •• • dra P �a Of . GRAPEVINE warrants and agrees that TENANT, upon paying the rent and performing the covenants herein provided, shall peaceably and quietly have and enjoy the Leased Site 18. COORDINATION OF OPERATION As a consequence of the proposed twenty-four (24) hour daily basis of operation by TENANT, GRAPEVINE acknowledges that any action undertaken or permitted by GRAPEVINE in making repairs, alterations, additions or improvements to the Leased Site or the Tower that might interfere with, suspend, cut-off or terminate access to or use by TENANT of the Leased Site or IENANT's antennas or equipment, including without limitation, air- conditioning and utilities thereto, could cause inconvenience,. expense and economic loss to TENANT. Therefore, GRAPEVINE agrees (i) to use its best efforts to minimize such inconvenience, possible loss or expense to TENANT by using its best efforts not to cause or permit any interruption or interfere with the operations of TENANT's antennas or equipment, particularly during the hours of 7:00a.m. to 10:00a.m. and 4:00 p.m. to 7:00 p.m. on any weekday, and (ii) to use its best efforts to give TENANT advance notice of any repairs, alterations, additions or improvements to be made with respect to the maintenance and operation of the Tower and the Leased Site or of any planned shut downs associated with the Tower for scheduled or routine maintenance that might adversely affect the operation of TENANT's communications facility,antennas or equipment. 19. BROKERS GRAPEVINE and TENANT represent to each other that they have not negotiated with any real estate broker in connection with this Lease. GRAPEVINE and TENANT agree that should any claim be made against the other for a real estate broker's commission, finder's fee or the like by reason of the acts of such party, the party upon whose acts such claim is predicated shall indemnify and hold the other party free and harmless from all losses, costs, damages, claims, liabilities and expenses in connection therewith (including, but not limited to, reasonable attorneys' fees) and shall defend such action by legal counsel reasonably acceptable to the indemnified other party. 20. ESTOPPEL CERTIFICATES A. TENANT, at the request of GRAPEVINE, shall provide GRAPEVINE with a certificate stating: (i)that this Lease is unmodified and in full force and effect(or, if there has been any modification,that the same is in full force and effect as modified and stating the modification); (ii)whether or not,to TENANT's knowledge,there are then existing any set-offs, or defenses against the enforcement by GRAPEVINE of any of TENANT's agreements, terms, covenants or conditions hereof(and, if so specifying the same); and (iii) the dates, if any, to which the rent has been paid in advance. B. GRAPEVINE, at the request of TENANT, shall provide 1ENANT with a certificate stating: (i)whether GRAPEVINE has any claim against TENANT and if so, stating the nature of such claim; (ii) that GRAPEVINE recognizes TENANT's right to TENANT's antennas, equipment and other property; (iii) that TENANT has the right to remove TENANT's equipment and other property from the Leased Site notwithstanding that same may be considered a fixture under local law; and (iv) that GRAPEVINE has no interest in and disclaims any interest to TENANT's equipment and other property. 21. MISCELLANEOUS PROVISIONS A. GRAPEVINE warrants and agrees that GRAPEVINE is seized of good and sufficient title to and interest in the Leased Site and has full authority to enter into and execute this Lease and that there are no undisclosed liens,judgments or impediments of title on OWNERS' Property that would affect this Lease. B. This Lease, including attached exhibits which are hereby incorporated by reference, incorporates all agreements and understandings between GRAPEVINE and 'TENANT, and no verbal agreements or 9 EN-1:311'...a_ 9...a.1.22,54.5.9- � App'',� Pa Jd o l understandings shall be binding upon either GRAPEVINE or TENANT, and any addition, variation or modification to this Lease shall be ineffective unless made in writing and signed by the parties. C. GRAPEVINE agrees that OWNERS' Property (including, without limitation, the Tower), and all improvements, comply and during the term of this Lease shall continue to comply with all building, life/safety, disability and other laws, codes and regulations of any applicable governmental or quasi-governmental authority. All such compliance shall be accomplished at GRAPEVINE's sole cost and expense. D. This Lease and the performance hereof shall be governed, interpreted, construed and regulated by the laws of the State of Texas. E. This Lease, and each and every covenant and condition herein, is intended to benefit the Leased Site and shall extend to and bind the heirs,personal representatives, successors and assigns of the parties. F. The parties agree that all of the provisions hereof shall be construed as both covenants and conditions,the same as if the words importing such covenants and conditions had been used in each separate paragraph. G. The parties acknowledge that each has had an opportunity to review and negotiate this Lease and have executed this Lease only after such review and negotiation. The language of each part of this Lease shall be construed simply and according to its fair meaning, and this Lease shall not be construed more strictly in favor or against either party. H. At GRAPEVINE's option, this Lease shall be subordinate to any mortgage by GRAPEVINE which from time to time may encumber all or any part of the Leased Site, provided that every such mortgagee shall recognize (in writing and in a form acceptable to TENANT) the validity of this Lease in the event of a foreclosure of GRAPEVINE's interest and also TENANT's right to remain in occupancy and have access to the Leased Site as long as TENANT is not in default of this Lease. TENANT shall execute whatever instruments may reasonably be required to evidence this subordination. If, as of the date of execution of this Lease, there is any deed of trust, ground lease or other similar encumbrance affecting GRAPEVINE's Property, GRAPEVINE agrees to use its best efforts in cooperating with TENANT to obtain from the holder of such encumbrance an agreement that TENANT shall not be disturbed in its possession,use and enjoyment of the Leased Site. I. If GRAPEVINE breaches this Lease in any manner or substantially breaches any material term contained in any mortgage or deed of trust superior to TENANT's estate under this Lease (other than any mortgage or deed of trust for which TENANT has obtained a non-disturbance agreement in accordance with Paragraph 21.H.) or contained in any lease under which GRAPEVINE holds title to any portion of OWNERS' Property, and if GRAPEVINE fails to commence to cure such breach within thirty(30) days after receiving a written notice from TENANT exactly specifying the violation (or if GRAPEVINE fails thereafter to diligently prosecute the cure to completion),then"TENANT may enforce each of its rights and remedies under this Lease or provided by law or it may (although it shall not be obligated to do so) cure GRAPEVINE's breach or perform GRAPEVINE's obligations (on GRAPEVINE's behalf and at GRAPEVINE's respective expense) and require the GRAPEVINE to reimburse (or offset against rent) all reasonable expenses incurred in doing so plus interest(from the date such expenses are incurred until reimbursement)at ten percent(10%)per annum. J. In the event that (i) the Leased Site is encumbered by or subject to any debts and liens, and (ii) GRAPEVINE defaults in the payment and/or performance of said debts and liens, TENANT may, at its option and without obligation, cure or correct GRAPEVINE's defaults, and upon doing so,TENANT shall be subrogated to any and all rights, superior titles, liens, and equities owned or claimed by the holders of such debts and liens, and TENANT shall be entitled to deduct and set-off against all rents that next may be or may become due under this Lease until all sums so paid by TENANT to cure or correct GRAPEVINE's defaults have been deducted and set-off in full against such rents. 10 E i T . si Png 1 of ki K. If any portion of this Lease is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion shall be deemed modified to the extent necessary in such court's opinion to render such portion enforceable and, as so modified, such portion and the balance of this Lease shall continue in full force and effect. L. If a dispute arises between the parties relating to this Lease, the parties agree to meet to try to resolve the dispute. Such meeting shall be attended by individuals with decision-making authority to attempt, in good faith, to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within thirty(30) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, either party may request that such dispute be resolved through non-binding mediation. The mediator shall be an individual or firm with expertise in wireless telecommunications, as well as in the subject matter of the dispute. If either party institutes any action or proceeding in court to enforce any provision hereof, or any action for damages for any alleged breach of any provision hereof, then the prevailing party in such action or proceeding shall be entitled to receive from the non-prevailing party such amount as the court may adjudge to be reasonable attorneys' fees for the services rendered to the prevailing party,together with its other reasonable litigation expenses. M. In addition to the other remedies provided for in this Lease, GRAPEVINE and TENANT shall be entitled to immediate restraint by injunction of any violation of any of the covenants, conditions or provisions of this Lease. N. The captions of the paragraphs of this Lease are for convenience of reference only and shall not affect the interpretation of this Lease. O. Concurrently with the execution of this Lease, GRAPEVINE shall execute before a notary and deliver to TENANT for recording a"Memorandum of Lease Agreement" in the form of the attached hereto as Exhibit"D". Such Memorandum shall not disclose any financial terms, unless required to do so by the laws of such jurisdiction. IN WITNESS WHEREOF, GRAPEVINE and TENANT have duly executed this Lease as of the date first above written. TENANT: FiberTower Corporation 185 Berry Street, Suite 4800 San Francisco, CA 94107 415 659 3500 By: Edgar S.DeLong, Jr.,Vice President and General Manager, South Region TENANT NOTARY: STATE OF COUNTY OF 11 C1-I1811J ,._ Tp a. 6.5p.i. P g3 o 1 OWNER: The CITY OF GRAPEVINE,Texas, a home-rule municipal corporation. By: Bruno Rumbelow,Acting City Manager City of Grapevine Attest: Linda Huff, City Secretary Approved as to form: John F.Boyle,Jr., City Attorney 12 EXHIBIT A TO EXHIBIT A OF RES. NO, 2005-58 PAGE 14 OF 19 _ EXHIBIT "A" ... , .4.,-..4 ...• ..:"6 . ' 6' • --..... - ...-. 'i t --,.. . ..< , • , . I__ - N. :2 .i N —_—... __ I. i . S-2i6---r - • --- - 1‘..," • -' )4- ' .,--• • i ..• .i''. .. ......, IP ar<4.55-.,, I ..- __, "" 0 i 1 g 0 0 / -.0 APPROX LOCAI:ON ti I ° Z / N'N*NN4*."'..'' 4.--74.SS UNE a_ z .) Iiir\ --- ki irk 0 ,..T. -- ,c: /88:15tTGAnZt■Ts § it 1131r - a < )</ cc / ..,/ ] i V f L 0. . El 13 SSAO 4 / - +1' 30.-0* 1 OONC UPS . Fr 1 x EXISTING GRASS I GRAvEL --.. 9 Ark C, woo.. \ S 900000. W 106.90 .2,--- 2T-O'l EDGE OF EXISTING ASPHALT PAviNG LONE STAR GAS PIPING 1 IN5fr'e FeAXEO AteA JON J. COLLINS VOL. 9660, PC. 2146 1 i 0 D.R.T.C.1. LOT 24 1 F. Pt (1C1,4' 1 I I ' .. 12A EXHIBIT 13 TO EXHIBIT A OF RES. NO. 2005-58 PAGE 15 OF 19 ....... _ . e-Yt015fr lif.,15-, P ---At ■-- ,-;R , • 0111 -, ti 2Rg.g.,7; •\\ \ \ al 1 1°0 8 BUILDING 8 . . • . _ . _ :: ..,___.....4,---.......,_ ..,.. .71,,,. 17 1 I octN) Alk. * i ,A,■A■.4 . I i 1 11 „..... . . . . P . •A I . _ 1 I -= : I 1 1 . . e 1 jil• • ' j A' 4114 1. 300 BLK BARTON STREET 8;86 1 H 3 8 g-tiii, n ok- . ._. . 0 zr.70 (1)>Z BUILDINGS "cii 0 c_ 9 z 5 ° , x .. SHEET TrTLE FIBER TOWER 0 DELTATEK ENGINEERING ITO BARTON WATER TANK A.) 14114 DALLAS PARKWAY,SUITE 480 - i SHELTER SITE NO.#DLS0360 Dallas,Tim a LAYOUT . N 211 WEST TEXAS STREET GRAPEVINE,TEXAS 469-374-8800 - . 12B EXHIBIT C TO EXHIBIT A OF RES. NO. 2005-58 PAGE 16 OF 19 • ' EX/16 fr 0 n IlrilL 1111: ---1111, 111 r ► ... ... AM 111=Ellaill Ilk I ,:r.„.„ . , _,, ._ .. ii, ,,,,,,,,,,„„„,,,,,_. iii ---, . .. i. ._ ., ._._,.:.,__....,..,.............,, h _ 8.-0" 1 A i 10©=4" 30'-10" z m mC .. o `1O2 OIy�- G7 ° .. 5 z „. _, ... ET TITLE FIBER TOWER n et a``T"'•. DELTATEK ENGINEERING ' TANK BARTON WATER TANK / 54114 DA�kAS PARKWAY,SUITE 480 8 O SITE NO.#DLS03$t7 u, W ELEVATION 211 WEST TEXAS STREET Danes,Texas , GRAPEVINE,TEXAS 469474-9800 12C EXHIBIT D TO EXHIBIT A OF RES. NO. 2005-58 PAGE 17 OF 19 EXHIBIT "D" MEMORANDUM OF LEASE AGREEMENT THIS MEMORANDUM OF LEASE AGREEMENT, made and entered into as of this 15th day of November, 2005, by and between The City of GRAPEVINE, Texas ("GRAPEVINE"), a municipal corporation, and FiberTower Corporation being a corporation organized and existing under the laws of the State of Delaware, and authorized to do business in Texas("TENANT"). 1. GRAPEVINE , on the terms and conditions set forth in an unrecorded document dated November 15th, 2005, and entitled "Ground and Tower Lease Agreement," which terms and conditions are incorporated herein by reference, and in consideration of the rent and covenants therein provided, does hereby lease to TENANT, and TENANT hereby rents and accepts from GRAPEVINE , certain property ("Leased Site") which is described in Exhibit "B" attached hereto and incorporated herein by this reference and which is located at 211 W. Texas Street, in the City of GRAPEVINE, in the County of Tarrant, in the State of Texas, within the property of GRAPEVINE which is described in Exhibit "A" attached hereto and incorporated herein by this reference ("OWNERS' Property"), for an initial term commencing on November 15th, 2005, and expiring on the fifth anniversary of the commencement of the initial term,which term may be extended by TENANT for up to four(4) additional five (5) year period(s) subject to the conditions of Paragraph 3.B. of the Ground and Tower Lease Agreement. 2. Pursuant to the Ground and Tower Lease Agreement, among other things, GRAPEVINE shall not cause or permit any use of the OWNERS' Property which interferes with or impairs the quality of the communications services being rendered by TENANT from the Leased Site. IN WITNESS WHEREOF, GRAPEVINE and TENANT have duly executed this Memorandum of Lease Agreement as of the date first above written. TENANT: FiberTower Corporation 185 Berry Street, Suite 4800 San Francisco, CA 94107 415 659 3500 By: Edgar S. DeLong, Jr.,Vice President and General Manager, South Region OWNER: The CITY OF GRAPEVINE, Texas, a municipal corporation The City of GRAPEVINE, Texas By: Bruno Rumbelow,Acting City Manager City of Grapevine Attest: Linda Huff,City Secretary 13 EXHIBIT D TO EXHIBIT A OF RES. NO. 2005-58 PAGE 18 OF 19 Approved as to form: Jo-7/M-TjTjT,Te:T—j. ity ttorney 14 EXHIBIT D TO EXHIBIT A OF RES. NO. 2005-58 PAGE 19 OF 19 MEMORANDUM OF LEASE AGREEMENT Notary Attachment CITY OF GRAPEVINE NOTARY BLOCK: STATE OF TEXAS COUNTY OF TARRANT The foregoing instrument was acknowledged before me this day of , 2003, by of the City of Grapevine, the Lessor. (AFFIX NOTARIAL SEAL) Official Notary Signature Notary Public State of (Printed, Typed or Stamped name of Notary) Commission Number FIBERTOWER CORPORATION NOTARY BLOCK: b.,,..p STATE OF TEXAS COUNTY OF TARRANT 15