HomeMy WebLinkAboutRES 2009-037 RESOLUTION NO. zoo9-3�
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS, APPROVING TOWER/GROUND
LEASE AGREEMENTS WITH CLEAR WIRELESS, LLC,
FOR THE INSTALLATION OF COMMUNICATIONS
EQUIPMENT AND PROVIDING AN EFFECTIVE DATE
WHEREAS, on October 20, 2009 the City of Grapevine (hereinafter referred to
as "Landlord") is in agreement to enter into a Tower/Ground Lease Agreement with
Clear Wireless, L.L.C., a Nevada limited liabitity company authorized to do business in
Texas (hereinafter referred to as "Tenant"); and
WHEREAS, the Landlord and the Tenant desire to enter into a Tower/Ground
Lease Agreement for the installation of communications equipment on the Minters
Chapel Road Cell Tower and for the installation of an equipment shelter in accordance
with specified compensation terms; and
WHEREAS, the Tower/Ground Lease Agreement for the Minters Chapel Road
Cell Tower is 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. That the City Manager is hereby authorized to enter into said
Tower/Ground Lease Agreement as attached.
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.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS on this the 20th day of October, 2009.
APPROVED:
�. Vlilliam D. Tate
N��yor
ATTEST:
Lin a Huff
l:ity Secretary
APPROVED AS TO FORM:
� ' ��
Cathy unningha
Assis nt City Attorney
��
RES. NO. 2009-3� 2
EXHIBIT "A" TO RES. NO. 2009-37
Page 1 of 16
GROUND AND TOWER LEASE AGREEMENT �
THIS GROUND AND TOWER LEASE AGREEMENT ("Lease"), is entered into as of the
Effective Date, by and between The City of Grapevine, Texas ("GRAPEVINE"), a home-rule
municipal corporation, and Clear Wireless LLC, a Nevada limited liability company, 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 1900
Minters Chapel Road, City of Grapevine, County of Tarrant, State of Texas ("Owner's
Property").
B. Tenant hereby desires to lease a portion of Owner's Property ("Ground Space") and a
certain portion of the tower ("Tower") located on Owner's Property, together with obtaining a
right of access and a right to install utilities on the Leased Site. The Crround Space which is
approximately 49 square feet and the space on the Tower and its location and orientation("Tower
Space") is set forth on the attached Exhibit "A" (any sketch in Exhibits "A" may not be to scale
and therefore are not intended to be used for measurement purposes). The Ground Space and
Tower Space are collectively the "Leased Site." 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, ar 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 earlier of the date Tenant commences installation of its communications facility or six (6)
. months after the Effective Date ("Commencement Date"). Tenant shall pay Grapevine as rent,
Twenty thousand and no/100 dollars ($20,000) per year ("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
EXHIBIT "A" TO RES. NO. 2009-37
Page 2 of 16
each year. All payments due under this Agreement shall be sent to GRAPEVINE's address
indicated under Section 12 below,to the attention of the Citv Mana�er.
B. Thereafter, unless TENANT advises GRAPEVINE in writing not less than ninety (90)
days priar 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 final year of the Initial Term or the immediately preceding extension period,
as applicable, 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 ternunated 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 Ten
Thousand Dollars ($10,000.00), 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. 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,
EXHIBIT "A" TO RES. NO. 2009-37
Page 3 of 16
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 so long as those existing Tenant's are operating in compliance with
all FCC rules and regulations and applicable laws,nor the operation of the elevated water storage
facility located on OWNERS' Property described in E�ibit"A"herein.
(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 GIZAPEVINE 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 wili comply with all applicable rules and regulations of the Federal Communications
Commission, and electrical codes of the City andlor 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 Commencemer�t 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
s��� 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
EXHIBIT "A" TO RES. NO. 2009-37
Page 4 of 16
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 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 deterrnines 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 foriy-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 ar pledge the same, ar sublet the Leased Site, or any part thereof, without
the prior written consent of GR.APEVINE, 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.
��
EXHIBIT "A" TO RES. NO. 2009-37
Page 5 of 16
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 GR.APEVINE 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, TENAN'T 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 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 frorn 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
�y 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 TENANT'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 Permit
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
�r.� of the Tower, and so long as such subsequent user complies with the terms of this Lease.
EXHIBIT "A" TO RES. NO. 2009-37
Page 6 of 16
' 8. INDEMNIFICATIQN AND INSiJRANCE
.„_p 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/ar 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
TENANT 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, 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
TENANT'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.
TENANT will install an electric meter for its utility services and TENANT shall pay all costs
related to said electric service.
�,....w
EXHIBIT "A" TO RES. NO. 2009-37
Page 7 of 16 �
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 thereo fl
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 entered into a financing arrangement
including promissory notes and financial and security agreements for the financing of the
TENANfi's antennas and equipment (the "Collateral") with a third party financing entity (and
inay 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 `Bvent 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.
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 ar
property from the Leased Site or the Tower.
EXHIBIT "A" TO RES. NO. 2009-37
Page 8 of 16
' 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
.t� » 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, ar 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:
Clear Wireless LLC Clear Wireless LLC
4400 Carrillon Point 4400 Carrillon Point
" Kirkland,WA 98033 Kirkland,WA 98033
Attention: Site Leasing Attention: Legal Department
(425)216-4678 (425)216.7600
E-mail siteleasin�((u�clearwire.com (425)216.7900 Fax
OWNERS:
The City of GRAPEVINE,Texas,a municipal corporation
Attn: Office of the City Manager
Address: P.O. Box 95104
GRAPEVINE,Texas 76099
Telephone Number: (817)410-3105
Facsimile Number: (817)410-3002
With a copy to:
Boyle &Lowry, L.L.P. .
Attn: L. Stanton Lowry
4201 Wingren, Suite 108
Irving, Texas 75062
Telephone Number: (972) 650-7100
Facsimile Number: (972) 650-7105
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 h-ansferee 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 lrnowledge, neither GRAPEVINE or any
A�� 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
EXHIBIT "A" TO RES. NO. 2009-37
Page 9 of 16
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' Properiy, 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 GR.APEVINE, upon thiriy (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 ar 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 properly
taxes that are a result of reassessment of OWNERS' Property due to any sale or transfer of
ownership thereo£ 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. QLTIET ENJOYMENT AND NON-INTERFERENCE
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
EXHIBIT "A" TO RES. NO. 2009-37
Page 10 of 16
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
TENANT'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:OOa.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 lrnowledge, 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 TENANT 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.
2L 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
F- that would affect this Lease.
EXHIBIT "A" TO RES. NO. 2009-37
Page 11 of 16
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 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
GR.APEVINE 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
EXHIBIT "A" TO RES. NO. 2009-37
Page 12 of 16
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.
K. If any portion of this Lease is declared by a court of.competent jurisdiction to be invalid
ar 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 rneeting 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 far 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 "B". 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.
>:�.:,�
EXHIBIT "A" TO RES. NO. 2009-37
Page 13 of 16
TENANT: Clear Wireless LLC, a Nevada limited liability company
By:
TENANT NOTARY:
STATE OF TEXAS
COUNTY OF TARRANT
OWNER: The CITY OF GRAPEVINE, Texas, a home-rule municipal corporation.
By:
Name:
Its:
Attest:
City Secretary
Approved as to form:
City Attorney
�,�
EXHIBIT "A" TO RES. NO. 2009-37
Page 14 of 16
EXHIBIT"B"
_ _, MEMORANDUM O�'LEASE AGREEMENT
THIS MEMORANDIIM OF LEASE AGREEMENT,made and entered into as of this day of
, 2009, by and between The City of GRAPEVINE, Texas ("GRt�PEVINE"), a
municipal corporation, and Clear Wireless LLC, a Nevada limited liability company, being a
corporation organized and existing under the laws of the State of Nevada, and authorized to do
business in Texas("TENANT").
1. GRAPEVINE , on the terms and conditions set forth in an unrecorded document dated
, 2009, 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 1900 Minters Chapel Rd. , 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
, 2009, 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:
Clear Wireless LLC,a Nevada limited liability company
sy:
Name:
OWNER: The CITY OF GRAPEVINE, Texas, a municipal corporation
The City of GRAPEVINE, Texas
By:
Name:
Its:
Attest:
City Secretary
EXHIBIT "A" TO RES. NO. 2009-37
Page 15 of 16
Approved as to form:
City Attorney
EXHIBIT "A" TO RES. NO. 2009-37
Page 16 of 16
ACKNOWLEDGMENT
�� � THE STATE OF TEXAS �
§
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for said County
and State, on this day personally appeared known
to me to be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said Grapevine Corner, LLC,
that (s)he was duly authorized to perform the same by appropriate resolution of the
members and managers of such company for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day
of A.D., 2009.
Notary Public In and For Tarrant County, Texas
ACKNOWLEDGMENT
THE STATE OF TEXAS §
§
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, a Notary Public in and for said County
and State, on this day personally appeared Bruno Rumbelow known to me to be the
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said City of Grapevine, that (s)he
was duly authorized to perform the same by appropriate resolution of the city council of
such city for the purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day
of A.D., 2009.
,...,
, Notary Public In and For Tarrant County, Texas