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HomeMy WebLinkAboutRES 2000-041 RESOLUTION NO. 2000-41 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS TO ENTER INTO A JOINT TOWER & GROUND LEASE AGREEMENT WITH GRAPEVINE- COLLEYVILLE INDEPENDENT SCHOOL DISTRICT AND METRICOM, INC. FOR THE COLLOCATION OF ANTENNAE AND THE INSTALLATION OF COMMUNICATIONS EQUIPMENT AS NOTED IN EXHIBIT "A" AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Grapevine and the Grapevine-Colleyville Independent School District (G.C.I.S.D.) [hereinafter referred to as "Landlord"] and Metricom Inc., a Delaware Corporation, [hereinafter referred to as "Tenant"] desire to enter into a Joint Tower/Ground Lease Agreement; and WHEREAS, The City Council approved a special use permit on July 18, 2000 to allow the Tenant to collocate antennae and communications equipment at the tower site; and WHEREAS, the Board of Trustees of the G.C.I.S.D. approved the terms of the Tower/Ground Lease on June 27, 2000; and WHEREAS, the terms of the Tower/Ground Lease 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 above preamble are true and correct and are incorporated herein 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 as Exhibit "A". Section 3. That this resolution shall become effective immediately from and after its passage and approval by the City Council. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE, TEXAS on this the 31st day of July, 2000. APPROVED: William D. Tate Mayor ATTEST: Lin a Huff 1 City Secretary APPROVED AS TO FORM: John F. Boyle, Jr. / City Attorney RES. NO. 200U-41 2 EXHIBIT. , TO 42:4'. 0/4,—1/l Page ___/.__ of GROUND AND TOWER LEASE AGREEMENT IS GROUND AND TOWER LEASE AGREEMENT ("Lease"), is entered into as of this a7 day of ,TI i rtp , 2000, by and between The City of Grapevine, Texas ("GRAPEVINE"), a home rule municipal toration, incorporated under Article XI, Section 5 of the Constitution of the State of Texas and Grapevine-Colleyville Independent aol District ("GCISD"), and METRICOM, INC, a Delaware Corporation ("TENANT"). In consideration of the premises and of mutual obligations and agreements in this Lease, the parties agree as follows: E LEASED SITE A. GCISD is the titleholder of that certain real property commonly known as 3050 Mustang Drive,City of Grapevine, County of •ant, State of Texas, and GRAPEVINE is the lessee of said property ("OWNERS' Property") which is described on the attached ibit"Al". B. TENANT hereby desires to lease a portion of OWNERS' Property and a certain portion of the tower ("Tower") located on HERS' Property(the"Leased Site"), together with obtaining a right of access and a right to install utilities on the Leased Site. The sed Site which is the subject of this Lease is located within OWNERS' Property, is approximately five hundred and two (502) ire feet, is more specifically described as a .0115 acres of land, and is situated substantially as shown on the attached Exhibit "A2" with respect to the space on the Tower, its location and orientation are set forth on the attached Exhibit "A3"). TENANT shall the right to run cables, wires, conduits and pipes under, over and across OWNERS' Property to connect TENANT's equipment he Tower to its equipment in its facility located on the Leased Site, subject to the approval of GRAPEVINE and GCISD as tided for in Section 4.A.of this Lease. GCISD and GRAPEVINE hereby grant to Tenant the right to use OWNERS' Property when ant is constructing, removing, replacing, servicing, securing, operating, or maintaining its communications facility, subject to the as and conditions contained herein. C. GRAPEVINE, GCISD and TENANT hereby agree that the Leased Site (including an access right-of-way thereto, but luding the space on the Tower) may be surveyed by a licensed surveyor at the sole cost of TENANT, and such survey shall be ched hereto as Exhibit"A4"and become a part hereof and shall control to describe the Leased Site in the event of any discrepancy veen such survey and the description contained in Paragraph 1.B. above. LEASE AND EASEMENT [SD AND GRAPEVINE lease the Leased Site to TENANT and agree that Tenant shall have free access to the Leased Site for the doses of constructing, installing, operating and maintaining the communications facility, and to install, remove, replace, and ntain utility cables,conduits and pipes, and during the continuation of this agreement, and any renewals thereof, ingress and egress ereby granted to Tenant seven (7) days a week, twenty-four (24) hours a day, as limited by paragraph 7.A. GRAPEVINE will vide TENANT with a contact person to ensure that TENANT has twenty-four hours, seven days a week, access to the Tower. It is ted, however, that only authorized engineers, employees, or properly authorized contractors, subcontractors, agents of Tenant. nts of GCISD and/or Grapevine, FCC inspectors, or persons under their direct supervision, will be permitted to enter the Leased TERM AND RENT initial term of this Lease ('the Initial Term") shall be five years and shall commence on the issuance of any Building Permit to 4ANT from GRAPEVINE for any improvement to the GCISD Property or the Leased Site or the date of the execution of this cement,whichever date is later. During the Initial Term,Tenant shall pay GRAPEVINE and GCISD each Nine Thousand Dollars ,000.00 ) annually, as full rental for the initial Term (the "Rent"), payable in quarterly installments of Two thousand two hundred Dollars (52,250.00) each (the "Quarterly Payments"). The first Quarterly payment of Rent (the "Initial Payment") shall be able within thirty (30) days of the Commencement Date, prorated as appropriate. Subsequent Quarterly Payments shall be pad a' e ar before January 1, April 1, Jule 1, and October 1 of each year. All payments due under this Agreement shall be sent to c.:, sor's address indicated under Section 12 below. 1or1: I4 D: 6/I6/x, 14:54) EXHIBIT /7 TO laqdlab Page g of 10 . Thereafter, unless any party advises the others in writing during the initial term or the extension period (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 an additional five(5)year period. :. The Annual Rent for the extension period (after the Initial Term) shall be the Annual Rent in effect for the final year of the extension period, increased by either fifteen percent (15%) or the total percentage increase in the Consumer Price Index (CPI) the previous five year period,whichever is greater. ). Should this Lease still be in effect at the conclusion of all of the extension periods provided for herein, this Lease shill inue in effect on the same terms and conditions [other than Annual Rent which shall be an amount equal to the one twelfth (1/12) Le Annual Rent in effect for the preceding year, increased by three percent(3%)] for a further period of one (1) month, and for like thly periods thereafter, until and unless terminated by either party by giving to the other written notice of its intention to so mate at least thirty(30)days before the expiration of the period then in effect. USE OF THE LEASED SITE 'TENANT may use the Leased Site to construct, remove, replace, service, maintain, secure and operate a communications ity, including, without limitation, required TENANT antenna array (as specifically shown on Exhibit "A3" and as; added to. or ,tituted from time to time) and antenna support structures, and for any other uses incidental thereto. TENANT will construct a e around the Leased Site,subject to GRAPVEVINE and GCISD'S approval,said approval not to be unreasonably withheld. Each t antenna array or antenna support structure may be configured as requested by TENANT from time to time, provided TENANT ,ins approval, pursuant to Paragraph 4.B. all permits and approvals required by applicable jurisdictions for such requested 5guration. GRAPEVINE and GCISD shall have the right to approve plans for any improvements, including any fence or antennae y, installed by TENANT on the Leased Site, such approval to be given or not given at the discretion of Grapevine and GCISD; tided that GCISD and GRAPEVLNE must notify TENANT of its approval or disapproval of any such plans within thirty (30) days r the submission of such plans by TENANT to GCISD and GRAPEVINE,and in the event that GCISD or GRAPEVINE fails to so fy TENANT,that party shall be deemed to have approved such plans. GCISD and GRAPEVINE shall be notified in writing about 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 rfere with the operation of existing radio or electronic equipment at the Leased Site, nor the operation of the elevated water storage lity located on OWNERS' Property described in Exhibit"Al"or"A2"herein. (2) TENANT shall coordinate with GRAPEVINE and GCISD and all existing operators of radio equipment at the Tower to ire that TENANT's frequencies and antenna location will be compatible with existing equipment. (3) In the event there is harmful interference to the existing radio or electronic equipment TENANT shall promptly make all ■onable efforts to eliminate any harmful interference, if caused by TENANT's equipment, within ten (10) days after notice from APEVINE or GCISD or such other operator to TENANT advising of the interference. 2or 1. .Act.‘ c/tc/cc, EXHIBIT 4 TO E lddD `// Page 3 ' of IO (4) If said interference to said existing operator cannot be eliminated within thirty (30) days. TENANT shall suspend ations(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 immediate notice to GRAPEVINE and GCISD and within thirty (30) days shall remove its equipment shelter, antenna facilities, rete pads,cables,generators, fences,and any other TENANT owned equipment from the Leased Site. (6) If any interference occurs to any GRAPEVINE or GCISD's public safety transmission, whether existing or subsequent. is caused by TENANT,TENANT will immediately cease all operations until the interference is cured. (7) From time to time GRAPEVLNNE or GCISD may grant to other entities the right to operate communications facilities at rower and/or the right to install antennas in connection with the operation of such facilities or other communications facilities: ided, however that the operation of such facilities and antennas by other occupants shall be required to comply with all of the irements contained herein relative to TENANT'S equipment. TENANT further agrees that it will comply with all applicable rules regulations of the Federal Communications Commission, and electrical codes of the City and/or State. Under this Lease. PEVINE and GCISD assume no responsibility for the licensing. operations and/or maintenance of Tenant's equipment. IANT'S right to use the Tower shall not interfere with GRAPEVINE's superior right to use the same as an integral part of the 's water system. (8) GRAPEVINE and GCISD acknowledges that TENANT's ability to use the Leased Site for its intended purposes is ingent upon TENANT's obtaining and maintaining, both before and after the Commencement Date, all of the certificates, permits, ises and other approvals (collectively, "Governmental Approvals") that may be required by any federal, state or local authority for foregoing uses and improvements to the Leased Site desired by TENANT. GRAPEVINE and GCISD shall cooperate with 1ANT in TENANT's efforts to obtain such Governmental Approvals and shall take no action that would adversely affect 1ANT's obtaining or maintaining such Governmental Approvals. Should GRAPEVINE or GCISD be notified or cited by any State 'ederal regulatory agency that OWNERS' Property is not in compliance with said agencies regulations due to TENANT's illation of improvements under this Lease,GRAPEVINE or GCISD will immediately notify TENANT of said non-compliance and ENANT does not cure the conditions of non-compliance within the time frame allowed by the citing agency, GRAPEVINE or :SD may terminate this Lease. TERMINATION In the event any application for certificate, permits, licenses or other approvals is rejected or any certificate, permit, license. or 7oval issued to TENANT is canceled, expires or lapses or is otherwise withdrawn or terminated by Governmental Authority or soil ng tests and/or Environmental Studies are found to be unsatisfactory so that TENANT, in its sole discretion will be unable to use Leased Site for the purposes set forth herein, TENANT shall have the right to terminate this Lease. Prior written notification to PPEVLNE and GCISD of TENANT'S intent to exercise its right to terminate this Lease shall be by certified mail, return receipt rested, and shall be effective upon receipt of such notice by GRAPEVINE and GCISD as evidenced by the return receipt. Any ival Rent paid to such termination date shall be retained by GRAPEVINE and GCISD. In addition, and provided that TENANT is not then in default under this Lease,TENANT may,during any extension period. upon one(1)year's written notice to GRAPEVINE and GCISD, terminate and cancel this Lease if TENANT determines that the Leased Site has become unsuitable for TENANT's operations, upon payment to GRAPEVINE and GCISD 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. ASSIGNMENT AND SUBLETTING A. TENANT shall not assign this Lease, or allow it to be assigned, in whole or in part, by operation of law or otherwise. ,. gage or pledge the same, or sublet the Leased Site, or any part thereof, without the prior written consent of GRAPEVINE arc' ISD. The preceding language to the contrary notwithstanding, GRAPEVINE and GCISD shall not unreasonably withhold the: sent to an assignment of the entire Lease or the sublet of the entire Leased Site by TENANT to: (I) any corporation into which or 30F12 Ko: t/1t/x, EXHISIT_ . ro /1 Page of ,vhich TENANT is merged or consolidated so long as such successor agrees to be bound by the terms and conditions of this ;or(ii)any corporation acquiring fifty-one percent(51%) of TENANT's stock or all or substantially all of TENANT's assets so +s such successor agrees to be bound by the terms and conditions of this Lease. It is specifically agreed and understood, however, 'ENANT shall at no time be permitted to sublet any portion of the Leased Site or assign any portion of this Lease to another ton carrier for collocating purposes. GRAPEVINE and GCISD's consent to an assignment or sublease shall be deemed given if :r GCISD nor GRAPEVINE responds to TENANT's request within thirty (30) days after GRAPEVINE and GCISD's receipt of ritten request specified in this Paragraph. I. No consent by GRAPEVINE or GCISD to any assignment or sublease by TENANT shall relieve TENANT of any obligation performed by TENANT under this Lease, whether arising before or after the assignment or sublease. The consent by PEVINE or GCISD to any assignment or sublease shall not relieve TENANT from the obligation to obtain GRAPEVINE and SD's express written consent to any other assignment or sublease. ;QUIPMENT AVAILABLITY GRAPEVINE and GCISD need the ability to temporarily remove any equipment or facilities in order to maintain the Tower on the :d Site. Removal of TENANT'S equipment shall be performed by TENANT on ninety (90) days prior written notice from PEVINE or GCISD. Reattachment of TENANT'S facilities or equipment shall be by TENANT on notice from GRAPEVINE or ;ID that the maintenance which necessitated the equipment or facilities removal has been completed. TENANT must notify .PEVINE prior to entering the GRAPEVINE portion of the Tower or climbing or scaling the Tower by contacting Police Dispatch 17) 410-8127. TENANT must notify GCISD prior to entering into the GCISD portion of the Tower by contacting Facility ices at (817)251-5600 .TENANT will not be provided unattended access to the Tower. During any period of GRAPEVINE or GCISD's maintenance that requires the removal of TENANT'S equipment or facilities said Tower, GRAPEVINE and GCISD shall allow TENANT to place a portable mounted antenna, a.k.a. "Cell On Wheels" W),on OWNERS' Property in order for TENANT to provide continuous wireless telecommunications service.There shall be no tional fee or rental due GRAPEVINE or GCISD for this temporary placement. A Special Use Permit will be required to place this lorary equipment on this site. ly qualified and adequately insured agents, contractors or persons under TENANT'S direct supervision will be permitted to climb :ale the Tower or to install or remove TENANT'S equipment or facilities from the Tower. GRAPEVINE and GCISD retain the : to permit their own employees and agents and employees and agents of subsequent users of the Tower, to climb or scale the 'er for all purposes that do not interfere with TENANT'S use of the Tower. and so long as such subsequent user complies with the s of this Lease. INDEMNIFICATION AND INSURANCE A. TENANT hereby agrees to indemnify and hold, to the extent allowed by law, GRAPEVINE and GCISD harmless from and nst any and all claims of liability for personal injury, bodily injury, or property damage to the extent that they result from or arise ly out of (i) the acts or omissions of TENANT, its agents and employees in, on or about the Tower and/or the Leased Site, :pting however, such claims or damages as may be due to or caused solely by the acts or omissions of GRAPEVINE-or GCISD, r employees or agents, and/or (ii) TENANT's breach of any term or condition of this Lease on TENANT's part to be observed or ormed. B. GRAPEVINE hereby agrees to separately indemnify and hold, to the extent allowed by lay. TENANT harmless from arc ,nst any and all claims of liability for personal injury, bodily injury, or property damage to the extent that they result from or ari ly out of(i) the acts or omissions of GRAPEVINE, its agents and employees in, on or about the Tower and/or the Leased Site. :piing,however,such claims or damages as may be due to or caused by the acts or omissions of TENANT, its employees or agen: . for (ii) GRAPEVINE's respective breach of any term or condition of this Lease on GRAPEVINE'S part to be observed or d of 12 +ca. r4/•C, .N p..) EXHIBIT fi-/ TO igea R -(// Page of /a )rmed. 2. TENANT shall provide GRAPEVINE and GC1SD with a certificate of insurance issued by an insurance company licensed to ,usiness in Texas indicating that TENANT carries commercial general liability insurance with limits of liability thereunder of not than S1 million combined single limit for personal injury, bodily injury, or property damage together with an endorsement for ractual liability. Such shall name GRAPEVINE and GCISD as additional insureds with respect to the Leased Site. TENANT will ide GRAPEVINE and GCISD with a renewal certificate within ten (10) business days of GRAPEVINE or GCISD's written est for such certificate. Any insurance required to be provided by TENANT under this Paragraph S may be provided by a blanket ranee policy covering the Leased Site and other locations of TENANT, provided such blanket insurance policy complies with all ie other requirements of this Lease with respect to the type and amount of insurance required. TENANT may also fulfill its irements under this Paragraph 8 through a program of self-insurance provided that both GCISD and GRAPEVINE approve of said :ram. If TENANT elects to self-insure, then TENANT shall furnish GRAPEVINE and GCISD with a letter stating that there is a 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 'embers of the public and damage to property of others arising from the use of motor vehicles, and shall cover operation on and off Leased Site of all motor vehicles licensed for highway use, whether they are owned, non-owned, or hired. The liability coverage I not be less than S1 million combined single limit for bodily injury and property damage. UTILITIES ■ANT shall be responsible directly to the serving entities for all utilities required by TENANT's use of the Leased Site, however, APEVINE and GCISD agree to cooperate with TENANT in its efforts to obtain utilities from any location provided by the .PEVINE and GCISD or the servicing utility.TENANT will install an electric meter for its utility services and TENANT shall pay :osts related to said electric service. RIGHTS TO EQUIPMENT; CONDITION ON SURRENDER A. Subject to GRAPEVINE and GCISD's statutory lien for failure to pay Rent,TENANT's antennas and equipment shall remain zonal to and the property of TENANT. Provided Tenant is not then in default, the termination or expiration of this Lease, 4ANT shall remove its antennas and/or equipment.TENANT (i) shall repair any damage caused by such removal. (ii) with respect ny land leased shall remove all of its equipment, and (iii) shall otherwise surrender the Leased Site at the expiration of the term (as same may have been extended or the earlier termination thereof) in good condition and at a minimum, as nearly as is reasonably Bible to its condition at the time of the execution of this Lease,ordinary wear and tear excepted. At the end of this Lease,TENANT offer to sell its antennas and/or equipment to GRAPEVINE or GCISD. B. Any claims relating to the condition of the Leased Site or the Tower must be presented by GRAPEVliVE or GCISD in writing 'ENANT within sixty (60)days after the removal of TENANT'S equipment or GRAPEVINE and GCISD shall be deemed to have vocably waived any and all such claims. 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. ,nd when due, where such failure shall continue for a period of ten (10) days after written notice thereof is received by TENANT n GRAPEVINE or GCISD. (2) The failure by TENANT to observe or perform any of the covenants or provisions of this Lease to be obser‘e:: :t ;ormed by TENANT, other than as specified in Paragraph 11.A.(1), where such failure shall continue for a period of thirty ( s after written notice thereof is received by TENANT from GRAPEVINE or GCISD: provided. however, that it shall not c_ med an Event of Default by TENANT if TENANT shall commence to cure such failure within said thirty (30) day period and 5 of 12 444! 4/76/UC, EXHISI T TO _.4z2s2Z24,2_-211_ Page D; �L after 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 and GCISD a: DI in equity,GRAPEVINE or GCISD shall have the option to terminate this Lease and all rights of TENANT hereunder. C. If there occurs an Event of Default by TENANT, GRAPEVINE and GCISD shall not have the right, prior to the terminate;n is Lease,to re-enter the Leased Site and/or remove persons or property from the Leased Site or the Tower. NOTICES iotices hereunder must be in writing and, unless otherwise provided herein,shall be deemed validly given if sent by certified marl. -n receipt requested,addressed as follows(or to any other mailing address which the party to be notified may designate to the other ' by such notice) or as otherwise provided under applicable state law. Notice by any other method (whether by hand-deliver night delivery service,or otherwise) shall only be deemed effective upon receipt by the intended recipient. Should GRAPEVINE. SD or TENANT have a change of address, the other party shall immediately be notified as provided in this Paragraph of such toe. 'Unless GRAPEVINE or GCISD otherwise specifies in writing, rent checks from TENANT shall be sent to the person listed w to whom notices are sent. ■LANT: vIETRICOM,INC. Attn:Network Real Estate )80 University Avenue _os Gatos,CA 95032 Telephone Number: Facsimile Number: 'HERS: The City of Grapevine,Texas,a municipal corporation Attn:City Manager's Office 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:John F.Boyle,Jr. 4201 Wingren,Suite 108 Irving,Texas 75062 Telephone Number: (972) 650-7100 Facsimile Number: (972) 650-7105 GRAPEVINE-Colleyville Independent School District Attn.:Chief Finance and Operations Officer Address: 3051 Ira E.Woods Ave. Grapevine,Texas 76051-3897 Telephone Number: (817)481-5575 Facsimile Number: (817)424-1081 With a copy to: 56or 12 ,i ) crux, :sq P') bXHZUI __ To I- eti - 1/ PaGo 3rackett&Ellis Attn:Jim Whitton 100 Main Street Fort Worth,TX 76102-3090 SALE OR TRANSFER BY GRAPEVINE OR GCISD luld GRAPEVINE or GCISD, at any time during the term of this Lease, sell, lease, transfer or otherwise convey all or any part of TNERS' Property to any transferee other than TENANT, then such transfer shall be under and subject to this Lease and all e' \IANT's rights hereunder. HAZARDOUS SUBSTANCES A. To the best of GRAPEVINE and GCISD's knowledge neither GRAPEVINE or GCISD nor any third party has use.. crated, stored or disposed of, or permitted the use, generation, storage or disposal of any Hazardous Material (as defined in agraph 14.B.) on, under, about or within OWNERS' Property in violation of any law or regulation. GRAPEVINE, GCISD ar.o: KANT each agree that they will not use, generate, store or dispose of any Hazardous Material (as defined in Paragraph 14.B.) on. ler,about or within OWNERS' Property in violation of any applicable law or regulation. TENANT agrees that it will conduct all of )perations 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 tners,affiliates,agents and employees against any and all losses, liabilities,claims and/or costs(including reasonable attorneys' fees I costs) arising from any breach of any warranty or agreement contained in Paragraph 14.A. As used in Paragraph 14.A.. izardous Material" shall mean any substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable eral,state or local law or regulation(including petroleum and asbestos). CONDEMNATION A. In the event the whole of OWNERS' Property, including without limitation the Leased Site and the Tower, shall be taken or idemned,either temporarily or permanently, for public purposes,or sold to a condemning authority under threat of condemnation to vent taking,then this Lease shall forthwith automatically cease and terminate. B. GRAPEVINE and GCISD shall receive the entire condemnation award for land, the Tower and such other improvements as paid for by GRAPEVINE or GCISD, and TENANT hereby expressly assigns to GRAPEVINE and GCISD any and all right, titre I interest of TENANT now or hereafter arising in and to any such award. TENANT shall have the right to recover from S.:.27. hority, but not from GRAPEVINE or GCISD, any compensation as may be awarded to TENANT on account of the leasehcl.f ;rest,moving and relocation expenses,and depreciation to and removal of the personal property and fixtures of TENANT. LIENS GRAPEVINE and GCISD's option, this Lease shall be subordinate to any mortgage by GRAPEVINE and GCISD which from time ime may encumber all or part of the Leased Site or attached right of way; provided however, every such mortgage shall recognize validity of this Lease in the event of a foreclosure of GRAPEVINE or GCISD's interest and also TENANT'S right to remain :-. upancy of and have access to the Leased Site as long as TENANT is not in default of this Lease. TENANT shall execute whste•• :ruments may reasonably be required to evidence this subordinate clause. In the event the Leased Site is encumbered by a mortga_ APEVINE and GCISD will obtain and furnish to TENANT a non-disturbance instrument for each such mortgage in record::'-. m. TAXES A. TENANT shall be liable for and shall pay to the applicable taxing authority if billed directly to TENANT, or to GRAPEV1Y: GCISD if billed to GRAPEVINE or GCISD, upon thirty (30) days prior written notice from GRAPEVINE or GCISD, any es and assessments levied against an personal property or trade or other fixtures placed by TENANT in or about the Leased Si;: 7or1^_ s' Ni EXHIBIT. T0,613 W—9 / • Page k of 1c 3. TENANT shall pay separate from the rent any increases in real property taxes levied against GRAPEVINE or GCISD's 'rty, including the Tower, as a result of the improvements constructed by TENANT on the Leased Site or this Lease. TENANT not be responsible for any increases in real property taxes which are a result of reassessment of OWNERS' Property due to an:. ar transfer of ownership thereof. As a condition of Tenant's obligation to pay such tax increases, GRAPEVINE or GCISD shale ide Tenant documentation from the taxing authority representing the amount owed. QUIET ENJOYMENT AND NON-INTERFERENCE ,PEVINE and GCISD warrant and agree that TENANT, upon paying the rent and performing the covenants herein provided, sha:. eably and quietly have and enjoy the Leased Site COORDINATION OF OPERATION ► consequence of the proposed twenty-four (24) hour daily basis of operation by TENANT. GRAPEVINE and GCISD owledge that any action undertaken or permitted by GRAPEVINE or GCISD in making repairs, alterations, additions or ovements to the Leased Site or the Tower that might interfere with, suspend,cut-off or terminate access to or use by TENANT of ,eased Site or TENANT's antennas or equipment, including without limitation, air-conditioning and utilities thereto, could cause nvenience,expense and economic loss to TENANT. Therefore, GRAPEVINE and GCISD each agree (i) to use its best efforts tc mize such inconvenience, possible loss or expense to TENANT by using its best efforts not to cause or permit any interruption or fere with the operations of TENANT's antennas or equipment, particularly during the hours of 4:00 p.m. to 7:00 p.m. on an:. cday, and (ii) to use its best efforts to give TENANT advance notice of any repairs, alterations, additions or improvements to be e with respect to the maintenance and operation of the Tower and the Leased Site or of any planned shut downs associated with the er for scheduled or routine maintenance that might adversely affect the operation of TENANT's communications facility, antennas Iuipment. BROKERS U'EVINE, GCISD and TENANT represent to each other that they have not negotiated with any real estate broker in connection this Lease. GRAPEVINE, GCISD and TENANT agree that should any claim be made against the other for a real estate broker's mission, finder's fee or the like by reason of the acts of such party, the party upon whose acts such claim is predicated sha'.i mnify, to the extent allowed by law, and hold the other party free and harmless from all losses, costs, damages, claims, liabilities expenses in connection therewith (including, but not limited to, reasonable attorneys' fees) and shall defend such action by leza: isel reasonably acceptable to the indemnified other party. ESTOPPEL CERTIFICATES A. TENANT,at the request of GRAPEVINE or GCISD,shall provide GRAPEVINE or GCISD with a certificate stating: (i) tha: 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 ified and stating the modification); (ii) whether or not, to TENANT's knowledge, there are then existing any set-offs, or defense_ nst the enforcement by GRAPEVINE or GCISD of any of TENANT's agreements, terms, covenants or conditions hereof(and. :` ?ecifying the same);and (iii) the dates, if any, to which the rent has been paid in advance. B. GRAPEVINE and GCISD, at the request of TENANT, shall provide TENANT with a certificate stating: (i) stPEVINE or GCISD has any claim against TENANT and if so, stating the nature of such claim; (ii) that GRAPEVINE or GCISD ,gnizes TENANT's right to TENANT's antennas, equipment and other property; (iii) that TENANT has the right to remo 4ANT's equipment and other property from the Leased Site notwithstanding that same may be considered a fixture under local (iv) that GRAPEVINE or GCISD has no interest in and disclaims any interest to TENAANNT's equipment and other property. MISCELLANEOUS PROVISIONS A. GRAPEVINE and GCISD each warrants and agrees that GRAPEVINE and GCISD is seized of good and sufficient title interest in the Leased Site and has full authority to enter into and execute this Lease and that there are no undisclosed Ise-: gof 12 Lear l./tc/m. Si• P") EXHIBIT j� TO. le / Pale / of nents 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 rstandings between GRAPEVINE, GCISD and TENANT, and no verbal agreements or understandings shall be binding upon .r GRAPEVINE,GCISD or TENANT,and any addition, variation or modification to this Lease shall be ineffective unless made in ng and signed by the parties. C. GRAPEVINE and GCISD agree that OWNERS' Property (including, without limitation, the Tower). and all improvements. ?ly and during the term of this Lease shall continue to comply with all building, life/safety, disability and other laws, codes and lations of any applicable governmental or quasi-governmental authority. All such compliance shall be accomplished at LPEVINE and GCISD'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 is. E. This Lease, and each and every covenant and condition herein, is intended to benefit the Leased Site and shall extend to and 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 is 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 after such review and negotiation. The language of each part of this Lease shall be construed simply and according to its fair rung,and this Lease shall not be construed more strictly in favor or against either party. H. Tenant at its sole expense, and as directed and approved by GCISD will (1) move and reattach GCISD's existing chain link e to accommodate TENANT's placement of its equipment cabinet,(2)construct a wooden fence with gate around the perimeter of ;quipment to match that surrounding other existing equipment located at the water tower site,and(3) plant five five gallon photinia bs along the portion of the wooden fence facing the street known as Mustang Drive. I. If GRAPEVINE or GCISD breaches this Lease in any manner or substantially breaches any material term contained in any :gage or deed of trust superior to TENANT's estate under this Lease(other than any mortgage or deed of trust for which TENANT )brained a non-disturbance agreement in accordance with Paragraph 22.H.)or contained in any lease under which GRAPEVINE or SD holds title to any portion of OWNERS' Property, and if GRAPEVINE or GCISD fails to commence to cure such breach within y (30) days after receiving a written notice from TENANT exactly specifying the violation (or if GRAPEVINE or GCISD fails rafter to diligently prosecute the cure to completion), then TENANT may enforce each of its rights and remedies under this Lease Irovided by law or it may (although it shall not be obligated to do so) cure GRAPEVINE or GCISD's breach or perform PPEVINE or GCISD's obligations (on GRAPEVINE OR GCISD's behalf and at GRAPEVINE or GCISD's respective expense', require the GRAPEVINE or GCISD to reimburse all reasonable expenses incurred in doing so plus interest (from the date such :nses 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 or GCISD ults in the payment and/or performance of said debts and liens,TENANT may,at its option and without obligation,cure or correc; .PEVINE or GCISD's defaults, and upon doing so,TENANT shall be subrogated to any' and all rights, superior titles, liens. ar. ties owned or claimed by the holders of such debts and liens, and TENANT shall be entitled to deduct and set-off against all rents next may'be or may become due under this Lease until all sums so paid by'TENANT to cure or correct GRAPEVINE or GCISD•s ults 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 or unenforceable, then such pori.-- I be deemed modified to the extent necessary in such court's opinion to render such portion enforceable and. as so modified, sup ion 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 meet;-: I be attended by individuals with decision-making authority to attempt, in good faith, to negotiate a resolution of the dispute pri:r of 13 co, 4/a/x, EXHIBIT // To ,40_s2M._-_1! Page �— of l0 °arsuing other available remedies. If either party institutes any action or proceeding in court to enforce any provision hereof,or an m for damages for any alleged breach of any provision hereof, then the prevailing party in such action or proceeding shall be sled to receive from the non-prevailing party such amount as the court may adjudge to be reasonable attorneys' fees for the services lered to the prevailing party,together with its other reasonable litigation expenses. M. In addition to the other remedies provided for in this Lease, GRAPEVINE, GCISD and TENANT shall be entitled to iediate 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 Lease. O. Concurrently with the execution of this Lease, GRAPEVINNE and GCISD shall execute before a notary and deliver to ■ANI'for recording a"Memorandum of Lease Agreement" in the form of the attached Exhibit "B", with the same Exhibits "Al", 1"and"A3"as are attached to this Lease. Such Memorandum shall not disclose any financial terms,unless required to do so by the s of such jurisdiction. WITNESS WHEREOF,GRAPEVINE, GCISD and TENANT have duly executed this Lease as of the date first above written. NANT: METRICOM INC. • VNERS: The CITY OF GRAPEVINE, Texas, a municipal corporation, incorporated under Article XI, Section 5, of the nstitution of the State of Texas • me: K No.:75-6000546 proved as to form: y Attorney :APEV - OIL 'ILL ArEPENDENT SCHOOL DISTRICT • me: .'e •ot-1, '(1t'•Q 'cu a r.U,S et'S x No.:75-6001702 proved as to form: 10or12 .►so, �h c/oc, Si N) EXH1B(T TO r , , 1 Exhibit "Al" Page __L. of _L__ Legal Description of Ownet'S Property Meng• truI of ignd Ioc>sted it1 Pit P.R Splane survey, AlastniOr,Re, 14 M.'Catmint County,Texas arld DaInQ Iha esme trac to de40riD04 In lnalrwnent of toeosd M Volurt�t'��a 4405, Pa;e 0, of via QeaQ !'UNItio of Tcrtanl County, Ta><8e and b4in mom pnnialatly 4swleta° tsy meto6 and pounds oa fc ows: SagInNne at c point ( r caner Saari; 614 lance calmer for it Soulholtt corner heroin efattcrlb*4 aaet, tha sago painQ ih.g3tot we9l camor of tnvt cw%e(n trig 0000rlDad In Volcano 13949,Pt1 c 1686, of the Dead IL:wdA of Tamp)! County, Term, Qnd balttp 11s narf.tierfy lima of l>~iwil*n@liotit! tundefInao wick'): •inane% douth 7P d07'00 34 m'.ruwe 4 seraglio Mist, rcth o16 Horthjrli Tine, 1339.1; feria;t e poln!for cornor; Therro4 Nall 0i de;rrac 08 mlrwtea 2.1 9ACCrlde X91,ann4fatb►wlm qp vtrhitir Una, 551.92 fool Ic o pNnt fat c.4.rnor, also piing a mcnuwtod aouafit r(ins of 61Q',6 tiignivey 26 050 fast widtali Marva trorlh 04 aa4roCs 5e rrin+rtxa 00 sacande goal, with paid ecatttierty lute 1216 OS 104110 e point fat cornar; Thant;#swim es Coarflsi 02 m{rwtzl 46 8e481%a L1111,148.76 feec to a point(o eotf►t r; hence Scant)Co divan a7 m1nu1et143 t;aconds West, 807•67 fill ID we Pclnt of$eg n(ng e d cantlining 214,28 aef[at, matt or Woo, iattlt 1.c cfcpr.a 4 t minutes p7 Idcor,ds Watt,i cling=43(56/5 fell so them be; ffluittC of Q Gov to gig t fi ihmu;h a esnael s is or 01 of,retti 10,m1austs 51 sgtiNana:,*ro wri IT;434.44Ante t,t'3N.Gfi Gee,wttl tad Wiring pt'Nor 9 ctc6rtte146 ratnutsc 32 ee.:cud:WM, n Claw of 3830 tlxt ce e raw,: . Enuth 16 ckgreee Oi mint to 42 ozeoncs Wcu A dif14.11“ Of 31.77 Sect ao A puitu; • South 14 dogteu 34 min S) matzos halt, Lllelcnu of 11.42 reu w d point■ . Raurtt 75 tie¢.re:r 25 minucea 07 iscro.cis weer,o dlrtenwe cf 12.110 full*A POIrc.; , North 14 dtifugs 34 minuixa Si mods West,A airunct of X4,1/ t's+i to e point; • North 16+lc.Pr:c.4 Ol mlmlres 02 isoemdi goat, o diltutcc of 40,1 feet re{l►s beginning oft cutvc. the tttrnuAA a total Anals of RR 44grcet 10 mfnutea 51 tumt ,4o4 rl an *we of 1g.4ii feet with A eliotd bearing 0r Smith 59 4egai 46 Miry a 32 tt:.ondc Gut, a dio4r c.4 of 14,19 Ceti A point; gcath IS depruc 41 minutes 117 aeoadt a+t, a distanus of 61.aa Coat w a 1}0411,iAttt+ Iht youth Iitic of wW Gl;ttpevirc irrnitttlent Schaal Diecritt troet,glsq being tht:North rightPo f•woy ling of Said Muting Read; 1nee olpnti r)u South lin: of sold Otsprvine Indeten4tnt Salmi Piurfct trace,IMO Doing the North iQlit•oe Way line of veld Mt►s an3 RAW,South 74 tltirzc+ 18 mim+ttt 51 s tquli Weatit a&tom,0(12.0/1 cal to Ow ant of Dag(nnin„aM eottt;.t;itlr 2,121 sow.rter or 4.04-II ,11'14M or ieo, r ,) EXHIBIT l�� - ..../.—_page __1 _- f•�£ � I • i� i • o l r ' U_ I W I I `/ �w i ow, e --- - -� - - ---t- o aN / J d cr J „9—SL 'lI 1 / �j II, ¢3 `11 n N 1 a H 3 r ' H \ i o 0 E i 9 2 i ' - 1 1 ffll 161-1, 64 I 40610 1 I I _ etts4rd- i� r...�.�.......o 1 II i !I 1 il i I ill i Iii 1 l ..)) 1 '2 P ,t1 to n - - n •!/4l':. `� EXBtE31T P _ __/____ ___/__ of 1134 -1V101 ,9,9C1 201433 '"Il .9-.99 . ' . / Ui W A r , t s O ' & D. z .;- U 3 , W • I V1 V Cl vl UZ F r' Z z n Z __ - , W w� I �.1 C1 S ' Y M K (n Z Pa .---- --------"- -- ..::::::--- - / \O-M ''.. :'..'.'... °� ,W 0. z o .- !-' T t.1 tt ol.�U uKx '3.1 0 \. : .'.... O W U O•,1 pu Z, W % O 1 3 i yy , `w K N ! d'r 1'.;-'4A,•-• ' Ill ..•. • :V ,\ ' •• Vla. .. ..; ,; EXHIBIT "B" MEMORANDUM OF LEASE AGREEMENT EXHIBIT TO E- ezo - 11 Page / of • [IS MEMORANDUM OF LEASE AGREEMENT, made and entered into as of this fl day of SuvtR_ ,2000, by and ween The City of Grapevine,Texas("GRAPEVINE"), a municipal corporation, incorporated under Article XI, Section 5 of the nstitution of the State of Texas,and the Grapevine-Colleyville Independent School District("GCISD"),and Metricom,Inc., a laware Corporation Authorized to do business in Texas("TENANT"). GRAPEVINE and GCISD,on the terms and conditions set forth in an unrecorded document dated nz. ,2000,and .itled"Ground and Tower Lease Agreement," which terms and conditions are incorporated herein by reference, and in consideration the rent and covenants therein provided,does hereby lease to TENANT,and TENANT hereby rents and accepts from GRAPEVINE i GCISD,certain property ("Leased Site") which is described in Exhibit"A3"attached hereto and incorporated herein by this erence and which is located at 3050 Mustang Drive, in the City of Grapevine, in the County of Tarrant, in the State of Texas, N.%ithr - property of GRAPEVINE and GCISD which is described in Exhibit"Al"or"A2"attached hereto and incorporated herein by this erence("OWNERS' Property"),together with a non-exclusive easement to access the Leased Site and to install and maintain lities, for an initial term commencing on J u rue_ a'1 ,2000,and expiring on the fifth anniversary of the nmenccment of the initial term, which term may be extended by TENANT for four(4) additional five(5) year period(s)subject to conditions of Paragraph 3.B.of the Ground and Tower Lease Agreement. Pursuant to the Ground and Tower Lease Agreement,among other things,GRAPEVINE and GCISD shall not cause or permit am of the OWNERS' Property which interferes with or impairs the quality of the communications services being rendered by [NANT from the Leased Site. WITNESS WHEREOF,GRAPEVINE,GCISD, and TENANT have duly executed this Memorandum of Lease Agreement as of date first above written. TIERS:The CITY OF GRAPEVINE,Texas, a municipal TENANT: METRICOM INC. poration,incorporated under Article XI,Section 5 of the ,nstitution of the State of Texas and the Grapevine-Colleyville lependent School District By: e City of Grapevine.Texas me: (proved as to form: :y Attorney t.APEVINE-COLLEYV I LE r P 'ENDENT SCHOOL STRICT .me: M;ke Dcw �(‘,25',62),\A Tri-Ls-4 co EXHIBIT. L._ TO —r L��- 5/1 exhibit "kr Legal Description of Owners Property (19;ng a tra.:l of{;ru lc:t:ated in the P.R eDlene survey, Aatr9ct rte, 1451 Tenant County,T©zas and Palnp tha a4,�1 a trecl to do4or(Dr,,1 Iri lnolrwnent of rotate M volume 448S, Pogo 0, of tn." pa o4 ftgOtdt of Tenni Ccu;nty, Tams and 414 rnarg parti=i164 desu►aaa 13y maids and pounds of f4awE eaalnNna ec t3 point fart mar found ate t1 lance coiner far tt o 4outhosit corner 4f tt:e horair, doictikn44 Vaal, Gina 4131110 Doing f11410Lettwe31 4omer of trust oeTteln Irtic1 cleizonA4d in Vclurrto C949, Page 1 U6, of Ilia Dead Reca`dp of Tarr rut Co'anty, Tent, and brit the norltierfy lino of &Avazil°Road it ndotnod width); 1Tmcs 6cath 7;P ocproas 34 minutac 40 aarnda Wait, *itr o5i-d Ftortnprly rot. 10;;3.1; fact ti o pole!for cDiner; 'Thenee North 01 degrsec 06 rnlrwtea 21 2AGCt1Za East.;Antraity*i111 An tu4,itir721►nna, 651.62 foot too pant fef comor, alga CI<(ng o mcnunlarltaM 4autrarty('neat 6ta'.e Kgnistey 26 (150 font wldoa, Yherlca horVt 04 oagrvfie 59 rrinutkta 00 aecond3 En‘1i, with said eeatttorIy Ilea 1218 CIS fug ta a pDIM fat camar; "mina sauttl Qi3 CQprae(t 02 m{rs rG4 46 Iwzr1dS Etst,349.75 feat to a point ter oorn►!t Ttlenco Eo;:ch 00 d*araas 37 MI/10E2 43 ca;,ortds Wee, 8767 401 to Chet Point of H.g!,nn(ng and aantalninil 2,11,2E•0 acre ti moat ar gort 1.c derieea 41 minutes 01 it:or.d9 Wee;,e clisru,:e of 56.2.5 fact !3 Cite be;intning nro W.rt: to thv aft thyAuQp o esttasl iM1:of it 4epte:i 10,m1nu4.14 Si srtkomd;,*1'4:In us 4ivAcite 4t'3N,4S Cee; hoci bocrir4 pt'NorT 59 dcoroel 45 mtnu::i J2 it:cad: Weiic, t: rii:cia:r 41 1430 itt1 • South 76 degrees Oi tnii t c02 o:~onca We411 A Ottt.:llt=c of)1.77 foci cq s ouint; • South 14 dabrau rnirtat:4 S wends 1',tit,t tlletanrc Gr i7,42 rte.(w 6 gk+lt■t; . X430.,7$ tict:resr 25 r;tinutei 07 ucrrt4S Wet,a dlirurcc ref 12.110 foci tc a pains; Norht 14 rt•i;a;s 14 m;nt!ra 51 ►acondc Wet, & 4i4unct of 29,17 r44.1t4 A pars; North 76 11c Ot rnImItct 02 ttcAdt:F.aaf, o dilc3itcc or$S,SS Cce1 re OS:bezipning of is c::svc tp die riphr crtrauBA Ang1s of fiN deb'tcti IA Minuttt 51 i corgi,sr,4 ure 414:AUce of 19.414 feel wIch a coed E=arjng o1South S9 rdGircai 46 minvr~c 12 ctr4414c Eu1;, a dic4rle9 of 34,79 feet w a ( sine; • Scutll I S dcpruc{1 mina(:( 07 4:-condi>?ait, a disLncs 0[61.8i f t t w e Pauli,cunt b+ln8 the sou:t {Inc of wW C►;Qnevir.c fidtvinotnc,9:hool Dian ;ua:t,also.aria thcNorth ri:llso f•way Zinc oratid N4umtng Reed; x %toil the South tut: of said Gup+vin: Ir,detcrr4& t SctuMAI Ricr~fu vtu!t,tame bein; lit Not; iglut•of•way lire a ccld i`4%isunng Rout,Sauttt 74 atygrr.t+ 1B m(nutu s13;,;.nqttt:Wirt, a dtgm4:e 0;12.0,1 =a1 ca 014 Feint of gag(nnin„ eonroatini 2,121 t;,ucre feet or 0.418 ecru,mace cc 1eia, EXHIBIT 44. 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