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HomeMy WebLinkAboutItem 08 - Mustang Water TowerITEM 1 )? MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROGER NELSON, CITY MANAGER MEETING DATE: JULY 31, 2000 SUBJECT: RESOLUTION TO APPROVE A JOINT LEASE AGREEMENT FOR THE COLLOCATION OF ANTENNAE AND THE INSTALLATION OF COMMUNICATIONS EQUIPMENT ON THE MUSTANG WATER TOWER. RECOMMENDATION: City Council consider a resolution to approve a joint lease agreement between the City of Grapevine and the Grapevine Colleyville Independent School District (GCISD) and with Metricom, Inc. for the collocation of antennae and the installation of communications equipment at the Mustang Water Tower. FUNDING SOURCE: The terms of joint lease agreement include $18,000 revenue (split between GCISD and the City), 25 years, and escalation clause of 15% (or CPI) per five year term. BACKGROUND: Metricom, Inc. is a wireless data communications company that is expanding its market into Grapevine and the DFW Metro area. It will provide high speed, wireless access to the internet and online data services. Max Lewis, of the Whalen Company, has been working with the city and school district to negotiate the details of the tower and ground lease agreement. A special use permit was granted to Metricom at the July 18th City Council meeting. The School Board formally approved the terms of the joint lease agreement at their meeting on June 27th, 2000. The Staff and the City Attorney have reviewed the terms of the resolution and agreement and recommend approval. MYL July 25, 2000 (4:05PM) ■ RESOLUTION NO. 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 PROVIDE 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 31 st day of July, 2000. ATTEST: o - RES. NO. AW4 am I I owl k 8 S a THIS GROUND AND TOWER LEASE AGREEMENT ("Lease"), is entered into as of this -al-1— day of 2000, by and between The City of Grapevine, Texas ("GRAPEVINE"), a home rule municipal corporation, incorporated under Article XI, Section 5 of the Constitution of the State of Texas and Grapevine-Colleyville Independent School District ("GCISD"), and METRICOM, INC, a Delaware Corporation (`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. GCISD is the titleholder of that certain real property commonly known as 3050 Mustang Drive, City of Grapevine, County of Tarrant, State of Texas, and GRAPEVINE is the lessee of said property ("OWNERS' Property") which is described on the attached Exhibit "Al". B. TENANT hereby desires to lease a portion of OWNERS' Property and a certain portion of the tower (`Tower") located on OWNERS' Property (the "Leased Site"), together with obtaining a right of access and a right to install utilities on the Leased Site. The Leased Site which is the subject of this Lease is located within OWNERS' Property, is approximately five hundred and two (502) square feet, is more specifically described as a .0115 acres of land, and is situated substantially as shown on the attached Exhibit "A2" and with respect to the space on the Tower, its location and orientation are set forth on the attached Exhibit "AY). 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 and GCISD as provided for in Section 4.A. of this Lease. GCISD and GRAPEVINE hereby grant to Tenant the right to use OWNERS' Property when Tenant is constructing, removing, replacing, servicing, securing, operating, or maintaining its communications facility, subject to the terms and conditions contained herein. C. GRAPEVINE, GCISD and TENANT hereby agree that the Leased Site (including an access right-of-way thereto, but excluding the space on the Tower) may be surveyed by a licensed surveyor at the sole cost of TENANT, and such survey shall be attached hereto as Exhibit "A4" and become a part hereof and shall control to describe the Leased Site in the event of any discrepancy between such survey and the description contained in Paragraph l.B. above. 2. LEASE AND EASEMENT GCISD AND GRAPEVINE lease the Leased Site to TENANT and agree that Tenant shall have free 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, as limited by paragraph 7.A. GRAPEVINE will provide TENANT with a contact person to ensure that TENANT has twenty-four hours, seven days a week, access to the Tower. It is agreed, however, that only authorized engineers, employees, or properly authorized contractors, subcontractors, agents of Tenant, agents of GCISD and/or Grapevine, FCC inspectors, or persons under their direct supervision, will be permitted to enter the Leased S ite. 3. TERM AND RENT The initial term of this Lease (`the Initial Term") shall be five years and shall commence on the issuance of any Building Permit to TENANT from GRAPEVINE for any improvement to the GCISD Property or the Leased Site or the date of the execution of this Agreement, whichever date is later. During the Initial Term, Tenant shall pay GRAPEVINE and GCISD each Nine Thousand Dollars ($9,000.00) annually, as full rental for the initial Term (the "Rent"), payable in quarterly installments of Two thousand two hundred fifty Dollars ($2,250.00) each (the "Quarterly Payments"). The first Quarterly payment of Rent (the "Initial Payment") shall be payable within thirty (30) days of the Commencement Date, prorated as appropriate. Subsequent Quarterly Payments shall be payable on or before January 1, April 1, July 1, and October 1 of each year. All payments due under this Agreement shall be sent to each Lessor's address indicated under Section 12 below. Nc;� 1 of 12 piti M4D: 6/16/00, 14: 59 B. 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. C. The Annual Rent for the extension period (after the Initial Term) shall be the Annual Rent in effect for the final year of the prior extension period, increased by either fifteen percent (15%) or the total percentage increase in the Consumer Price Index (CPI) over the previous five year period, whichever is greater. D. Should this Lease still be in effect at the conclusion of all of the extension periods provided for herein, this Lease shall continue in effect on the same terms and conditions [other than Annual Rent which shall be an amount equal to the one twelfth (1/12) of the Annual Rent in effect for the preceding year, increased by three percent (3%)] for a further period of one (1) month, and for like monthly periods thereafter, until and unless terminated by either party by giving to the other written notice of its intention to so terminate at least thirty (30) days before the expiration of the period then in effect. 4. USE OF THE LEASED SITE A. TENANT may use the Leased Site to construct, remove, replace, service, maintain, secure and operate a communications facility, including, without limitation, required TENANT antenna array (as specifically shown on Exhibit "A3" and asr added to, or substituted from time to time) and antenna support structures, and for any other uses incidental thereto. TENANT will construct a fence around the Leased Site, subject to GRAPVEVINE and GCISD'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 approval, pursuant to Paragraph 4.B. all permits and approvals required by applicable jurisdictions for such requested configuration. GRAPEVINE and GCISD 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 to be given or not given at the discretion of Grapevine and GCISD; provided that GCISD and GRAPEVINE must notify TENANT of its approval or disapproval of any such plans within thirty (30) days -fter the submission of such plans by TENANT to GCISD and GRAPEVINE, and in the event that GCISD or GRAPEVINE fails to so itify TENANT, that party shall be deemed to have approved such plans. GCISD and GRAPEVINE shall be notified in writing about many scheduled construction times and major repair times unless an emergency exists. B. (1) TENANT covenants and agrees that Tenant's equipment, its installation, operation, and maintenance will not interfere with the operation of existing radio or electronic equipment at the Leased Site, nor the operation of the elevated water storage facility located on OWNERS' Property described in Exhibit "Al" or "A2" herein. (2) TENANT shall coordinate with GRAPEVINE and GCISD and all existing operators of radio equipment at the Tower to insure that TENAN T'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 reasonable efforts to eliminate any harmful interference, if caused by TENANT's equipment, within ten (10) days after notice from GRAPEVINE or GCISD or such other operator to TENANT advising of the interference. Fdcs� 2 of 12 ACT v4gw 6/76/0o, 3 59 (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 GCISD and within thirty (30) days shall 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 any GRAPEVINE or GCISD's public safety transmission, whether existing or subsequent, and is caused by TENANT, TENANT will immediately cease all operations until the interference is cured. (7) From time to time GRAPEVINE or GCISD may grant to other entities the right to operate communications facilities at the Tower and/or the right to install antennas in connection with the operation of such facilities or other communications facilities; provided, however that the operation of such facilities and antennas by other occupants shall be required to comply with all of the requirements contained herein relative to TENANT'S equipment. TENANT further agrees that it will comply with all applicable rules and regulations of the Federal Communications Commission, and electrical codes of the City and/or State. Under this Lease, GRAPEVINE and GCISD assume 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 and GCISD acknowledges that TENANT's ability to use the Leased Site for its intended purposes is contingent upon TENANT's obtaining and maintaining, both before and after the Commencement Date, all of the certificates, permits, licenses and other approvals (collectively, "Governmental Approvals") that may be required by any federal, state or local authority for the foregoing uses and improvements to the Leased Site desired by TENANT. GRAPEVINE and GCISD shall cooperate with TENANT in TENANT's efforts to obtain such Governmental Approvals and shall take no action that would adversely affect TENANT's obtaining or maintaining such Governmental Approvals. Should GRAPEVINE or GCISD be notified or cited by any State or Federal regulatory agency that OWNERS' Property is not in compliance with said agencies regulations due to TENANT's installation of improvements under this Lease, GRAPEVINE or GCISD 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 or GCISD may terminate this Lease. 5. TERMINATION A. In the event any application for certificate, permits, licenses or other approvals is rejected 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 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 and GCISD 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 and GCISD as evidenced by the return receipt. Any Annual Rent paid to such termination date shall be retained by GRAPEVINE and GCISD. B. 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. 6. 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, or mortgage or pledge the same, or sublet the Leased Site, or any part thereof, without the prior written consent of GRAPEVINE anO GCISD. The preceding language to the contrary notwithstanding, GRAPEVINE and GCISD shall not unreasonably withhold thei consent to an assignment of the entire Lease or the sublet of the entire Leased Site by TENANT to: (1) any corporation into which or PaCr- 3 OF 12 Aci4go-, 6/16/co, z5� P which TENANT is merged or consolidated so long as such successor agrees to be bound by the terms and conditions of this Lease; or (ii) any corporation acquiring fifty-one percent (51%) of TENANT's stock or all or substantially all of TENANT's assets so long as such successor agrees to be bound by the terms and conditions of this Lesae. It is specifically agreed and understood, however, that TENANT shall at no time be permitted to sublet any portion of the Leased Site or assign any portion of this Lease to another common carrier for collocating purposes. GRAPEVINE and GCISD's consent to an assignment or sublease shall be deemed given if neither GCISD nor GRAPEVINE responds to TENANT's request within thirty (30) days after GRAPEVINE and GCISD's receipt of the written request specified in this Paragraph. B. No consent by GRAPEVINE or GCISD to any assignment or sublease by TENANT shall relieve TENANT of any obligation to be performed by TENANT under this Lease, whether arising before or after the assignment or sublease. The consent by GRAPEVINE or GCISD to any assignment or sublease shall not relieve TENANT from the obligation to obtain GRAPEVINE and GCISD's express written consent to any other assignment or sublease. 7. EQUIPMENT AVAILABLITY A. GRAPEVINE and GCISD need the ability to temporarily remove any equipment or facilities in order to maintain the Tower on the Leased Site. Removal of TENANT'S equipment shall be performed by TENANT on ninety (90) days prior written notice from GRAPEVINE or GCISD. Reattachment of TENANT'S facilities or equipment shall be by TENANT on notice from GRAPEVINE or GCISD that the maintenance which necessitated the equipment or facilities removal has been completed. TENANT must notify GRAPEVINE prior to entering the GRAPEVINE portion of the Tower or climbing or scaling the Tower by contacting Police Dispatch at (817) 410-8127. TENANT must notify GCISD prior to entering into the GCISD portion of the Tower by contacting Facility Services at (817)251-5600. TENANT will not be provided unattended access to the Tower. 3. During any period of GRAPEVINE or GCISD's maintenance that requires the removal of TENANT'S equipment or facilities ' "om said Tower, GRAPEVINE and GCISD 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 or GCISD for this temporary placement. A Special Use Permit will be required to place this temporary equipment on this site. Only 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 and GCISD retain the right to permit their own employees and agents and employees and agents of subsequent users of the Tower, to climb or scale the Tower for all purposes that do not interfere with TENANT'S use of the Tower, and so long as such subsequent user complies with the terms of this Lease. S. INDEMNIFICATION AND INSURANCE A. TENANT hereby agrees to indemnify and hold, to the extent allowed by law, GRAPEVINE and GCISD 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 TENANT, its agents and employees in, on or about the Tower and/or the Leased Site, excepting however, such claims or damages as may be due to or caused solely by the acts or omissions of GRAPEVINE -or GCISD, their 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 performed. B. GRAPEVINE hereby agrees to separately indemnify 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 t olely 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 as may be 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 na< 4 aP 12 PRi 4gv: (0 6,/00, t:59 ?,M performed. C. TENANT shall provide GRAPEVINE and GCISD 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 and GCISD as additional insureds with respect to the Leased Site. TENANT will provide GRAPEVINE and GCISD with a renewal certificate within ten (10) business days of GRAPEVINE or GCISD'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 both GCISD and GRAPEVINE approve of said program. If TENANT elects to self -insure, then TENANT shall furnish GRAPEVINE and GCISD 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 and GCISD agree to cooperate with TENANT in its efforts to obtain utilities from any location provided by the GRAPEVINE and GCISD 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. 10. 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 personal to and the property of TENANT. Provided Tenant is not then in default, the termination or expiration of this Lease, TENANT shall remove its antennas and/or equipment. TENANT (i) shall repair any damage caused by such removal, (ii) with respect to any land leased shall remove all of its equipment, and (iii) shall otherwise surrender the Leased Site at the expiration of the term (as the same may have been extended or the earlier termination thereof) in good condition and at a minimum, as nearly as is reasonably possible to its condition at the time of the execution of this Lease, ordinary wear and tear excepted. At the end of this Lease, TENANT may offer to sell its antennas and/or equipment to GRAPEVINE or GCISD. B. Any claims relating to the condition of the Leased Site or the Tower must be presented by GRAPEVINE or GCISD in writing to TENANT within sixty (60)days after the removal of TENANT'S equipment or GRAPEVINE and GCISD shall be deemed to have irrevocably waived any and all such claims. 11. TENANT DEFAULTS A. The occurrence of any one or more of the following events shall constitute an "Event of Default" hereunder by TENANT: (1) The failure by TENANT to make any payment of rent or any other payment required to be made by TENANT hereunder, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof is received by TENANT from GRAPEVINE or GCISD. (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 ILA.(1), where such failure shall continue for a period of thirty (30) days after written notice thereof is received by TENANT from GRAPEVINE or GCISD; 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 Ncr-5or12 Ati .49o: 6/1000, 2 54 ereafter 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 at law or 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 termination of this Lease, to re-enter the Leased Site and/or remove persons or property from the Leased Site or the Tower. 12. NOTICES All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or to any other mailing address which the party to be notified may designate to the other party by such notice) or as otherwise provided under applicable state law. Notice by any other method (whether by hand -delivery, overnight delivery service, or otherwise) shall only be deemed effective upon receipt by the intended recipient. Should GRAPEVINE, GCISD or TENANT have a change of address, the other party shall immediately be notified as provided in this Paragraph of such change. Unless GRAPEVINE or GCISD otherwise specifies in writing, rent checks from TENANT shall be sent to the person listed below to whom notices are sent. TENANT: METRICOM, INC. Attn: Network Real Estate 980 University Avenue y Los Gatos, CA 95032 Telephone Number: Facsimile Number: OWNERS: 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: (8 17) 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 v Facsimile Number: (817) 424-1081 With a copy to: Pace 6 OF 12 PdH{Go 6/16/-, 259 Brackett & Ellis Attn: Jim Whitton 100 Main Street Fort Worth, TX 76102-3090 13, SALE OR TRANSFER BY GRAPEVINE OR GCISD Should GRAPEVINE or GCISD, at any time during the term of this Lease, sell, lease, transfer or otherwise convey all or any part of OWNERS' Property to any transferee other than TENANT, then such transfer shall be under and subject to this Lease and all of TENANT's rights hereunder. 14. HAZARDOUS SUBSTANCES A. To the best of GRAPEVINE and GCISD's knowledge neither GRAPEVINE or GCISD nor any third party has used. generated, stored or disposed of, or permitted the use, generation, storage or disposal of any Hazardous Material (as defined in Paragraph 14.B.) on, under, about or within OWNERS' Property in violation of any law or regulation. GRAPEVINE, GCISD and TENANT each agree that they will not use, generate, store or dispose of any Hazardous Material (as defined in Paragraph 14.B.) on, under, about or within OWNERS' Property in violation of any applicable law or regulation. TENANT agrees that it will conduct all of its operations and activities on the Leased Site in compliance with all applicable environmental laws. B. GRAPEVINE and TENANT each agree to defend and indemnify, to the extent allowed by law, the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any warranty or agreement contained in Paragraph 14.A. As used in Paragraph 14.A., "Hazardous Material" shall mean any substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation (including petroleum and asbestos). 15. CONDEMNATION A. In the event the whole of OWNERS' Property, including without limitation the Leased Site and the Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a condemning authority under threat of condemnation to prevent taking, then this Lease shall forthwith automatically cease and terminate. B. GRAPEVINE and GCISD shall receive the entire condemnation award for land, the Tower and such other improvements as are paid for by GRAPEVINE or GCISD, and TENANT hereby expressly assigns to GRAPEVINE and GCISD 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 suc" authority, but not from GRAPEVINE or GCISD, any compensation as may be awarded to TENANT on account of the leaseholu interest, moving and relocation expenses, and depreciation to and removal of the personal property and fixtures of TENANT. 16. LIENS At GRAPEVINE and GCISD's option, this Lease shall be subordinate to any mortgage by GRAPEVINE and GCISD which from time to time may encumber all or part of the Leased Site or attached right of way; provided however, every such mortgage shall recognize the validity of this Lease in the event of a foreclosure of GRAPEVINE or GCISD's interest and also TENANT'S right to remain ir. occupancy of and have access to the Leased Site as long as TENANT is not in default of this Lease. TENANT shall execute whatetier instruments may reasonably be required to evidence this subordinate clause. In the event the Leased Site is encumbered by a mortgage. GRAPEVINE and GCISD will obtain and furnish to TENANT a non -disturbance instrument for each such mortgage in recordaE-e form. 17. TAXES A. TENANT shall be liable for and shall pay to the applicable taxing authority if billed directly to TENANT, or to GRAPE,,'INE or GCISD if billed to GRAPEVINE or GCISD, upon thirty (30) days prior written notice from GRAPEVINE or GCISD, any and r.. taxes and assessments levied against any personal property or trade or other fixtures placed by TENANT in or about the Leased Site. NCF,7or12 PR, n,4t, 6/16/00, 2 51 B. TENANT shall pay separate from the rent any increases in real property taxes levied against GRAPEVINE or GCISD's Property, including the Tower, as a result of the improvements constructed by TENANT on the Leased Site or this Lease. TENANT will not be responsible for any increases in real property taxes which are a result of reassessment of OWNERS' Property due to any sale or transfer of ownership thereof. As a condition of Tenant's obligation to pay such tax increases, GRAPEVINE or GCISD shall provide Tenant documentation from the taxing authority representing the amount owed. 18. QUIET ENJOYMENT AND NON-INTERFERENCE GRAPEVINE and GCISD warrant and agree that TENANT, upon paying the rent and performing the covenants herein provided, shall peaceably and quietly have and enjoy the Leased Site 19. COORDINATION OF OPERATION As a consequence of the proposed twenty-four (24) hour daily basis of operation by TENANT, GRAPEVINE and GCISD acknowledge that any action undertaken or permitted by GRAPEVINE or GCISD 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 and GCISD each agree (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 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 r equipment. 20. BROKERS GRAPEVINE, GCISD and TENANT represent to each other that they have not negotiated with any real estate broker in connection with this Lease. GRAPEVINE, GCISD 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, to the extent allowed by law, 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. 21. ESTOPPEL CERTIFICATES A. TENANT, at the request of GRAPEVINE or GCISD, shall provide GRAPEVINE or GCISD with a certificate stating: (i) tha, this Lease is unmodified and in full force and effect (or, if there has been any modification, that the same is in full force and effect as modified and stating the modification); (ii) whether or not, to TENANT's knowledge, there are then existing any set -offs, or defenses against the enforcement by GRAPEVINE or GCISD 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 and GCISD, at the request of TENANT, shall provide TENANT with a certificate stating: (i) whether GRAPEVINE or GCISD has any claim against TENANT and if so, stating the nature of such claim; (ii) that GRAPEVINE or GCISD recognizes TENANT's right to TENANT's antennas, equipment and other property; (iii) that TENANT has the right to remo%e TENANT's equipment and other property from the Leased Site notwithstanding that same may be considered a fixture under local la%;-. and (iv) that GRAPEVINE or GCISD has no interest in and disclaims any interest to TENANT's equipment and other property. 22. MISCELLANEOUS PROVISIONS A. GRAPEVINE and GCISD each warrants and agrees that GRAPEVINE and GCISD is seized of good and sufficient title and interest in the Leased Site and has full authority to enter into and execute this Lease and that there are no undisclosed liens= or IS Ati vLEo 6/16/co, 7:5q pm) judgments or impediments of title on OWNERS' Property that would affect this Lease. B. This Lease, including attached exhibits which are hereby incorporated by reference, incorporates all agreements and understandings between GRAPEVINE, GCISD and TENANT, and no verbal agreements or understandings shall be binding upon either GRAPEVINE, GCISD 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 and GCISD agree 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 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 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. Tenant at its sole expense, and as directed and approved by GCISD will (1) move and reattach GCISD's existing chain link fence to accommodate TENANT's placement of its equipment cabinet, (2) construct a wooden fence with gate around the perimeter of the equipment to match that surrounding other existing equipment located at the water tower site, and (3) plant five five gallon photinia shrubs 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 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 22.H.) or contained in any lease under which GRAPEVINE or GCISD holds title to any portion of OWNERS' Property, and if GRAPEVINE or GCISD 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 or GCISD 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 or GCISD's breach or perform GRAPEVINE or GCISD's obligations (on GRAPEVINE OR GCISD's behalf and at GRAPEVINE or GCISD's respective expense) and require the GRAPEVINE or GCISD to reimburse 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 or GCISD defaults in the payment and/or performance of said debts and liens, TENANT may, at its option and without obligation, cure or correct GRAPEVINE or GCISD'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 or GCISD'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 or unenforceable, then such portion shall be deemed modified to the extent necessary in such court's opinion to render such portion enforceable and, as so modified, suci portion and the balance of this Lease shall continue in full force and effect. L. If a dispute arises between the parties relating to this Lease, the parties agree to meet to try to resolve the dispute. Such meeting shall be attended by individuals with decision-making authority to attempt, in good faith, to negotiate a resolution of the dispute prior PBco 9 aF 12 j j v�4u: 6/16/m, x 59 - )ursuing other available remedies. If either party institutes any action or proceeding in court to enforce any provision hereof, or any motion for damages for any alleged breach of any provision hereof, then the prevailing party in such action or proceeding shall be entitled to receive from the non -prevailing party such amount as the court may adjudge to be reasonable attorneys' fees for the services rendered to the prevailing party, together with its other reasonable litigation expenses. M. In addition to the other remedies provided for in this Lease, GRAPEVINE, GCISD 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 and GCISD shall execute before a notary and deliver to TENANT for recording a "Memorandum of Lease Agreement" in the form of the attached Exhibit `B", with the same Exhibits "Al", "A2" and "AT' as are attached to this Lease. Such Memorandum shall not disclose any financial terms, unless required to do so by the laws of such jurisdiction. IN WITNESS WHEREOF, GRAPEVINE, GCISD and TENANT have duly executed this Lease as of the date first above written. TENANT: METRICOM INC. By: OWNERS: The CITY OF GRAPEVINE, Texas, a municipal corporation, incorporated under Article XI, Section 5, of the Constitution of the State of Texas By: Name: _ Its: _ Tax No. 75-6000546 Approved as to form: City Attorney GRAPEY - OIA,l By: _ Name: + e v Its: Tax No.: 75-6001702 Approved as to form: n(:g 10 or 12 P+ti'Up! 6/76/co, 250 SCHOOL DISTRICT h bit "A1" '"MM -1 : . . " a twc of 1pr+d ictaled in Pw P.R Solana survey, Rbatmd ma, `1453, Ytlrtsnt Goonty, Texas 4r l D chs ea�1e reef a da4a�fDoa (n tnalnunent atraeora h1 walupr�tt 5456, Page 0, 41 06 0004 Igt o artanl eaunly. Tatae and ba+rig vara PnttiwlWN duarl"o by metas a pound® aE f9pows, SsginNne at a point far eamQr fgwnd 61 a lance Offs r far the tautpr ,lith c�mar fat the heroin dettcrlbeq pact, tMa gems 46in i % pwMwaat comer of ttlpt cat" Iraq t7OW444 in Volum& 69`9, fta 1agg of ih8 peal atoMp of Twtsnr Caunty, TOM, WW belts lha nerOwV 1140 At AiuttMn@ Reid iundVned w4thj; '1Tinctt goptfl 7p oograG$ 24 rntnwW6 +40 8ewn40 W96t, with 51116 NarthArlY lint, I2MIQ f"c to a RQin! tat co+nor; Thames North 01 dagraec 06 rmlrwtea 21 tg=96 Dal. genu wo wlL Rn DUMPfutce, 65142 foat to a Ont fat comor, also paha a Mianunwtad aauthtirhr line oflite M►anwey 26 (160 feat widei; Yhamca MIrwtea 00 ,►®cams east, with 1614 aaatttiorly Ilr+d 1219 as "ter a ROinr fw cwnsr; Thane* 5cwtrt 89 dagrpej 0 RiirWMj 46 g6Wd4 Isel, $49.76 feet io A PON tat' UMer nerves Satttll ole dalra6t 37 rn�iutas 43 iat;,artas Went, 89787141110 thn Perot of Uglmning gild wntiii6iing 24,260 tom` 611 Mwt or 1440, NoN1 1; dttgreea 41 mitttttag 07 IdWdl Wdlt 0 stiIIMCC 0( 542$ 6111* Ota kagitmmC nf'a VArvo 10 d" itft thmugl a uncal t is Qr If 4agmo ib,ertinuv-14 51 tw ottQC, w4 tm 6p rt*tzce of 11,0 Gest with vhatd bear n pt'?tarth 90 dcgrmt 46,mous" 32 Second¢ west, a diauoee 604,70 rw to a palm; I. South 76 degrees di ttriMc4 02 second4 Wail 4 diliat cc of 31.77 rose ea 0 paha; 2. South 14 depw 114 mittws4 43 tt OW44 fait, t tlietsn= of 17Ax ,Yet W t ?4MT; I. hold 7S degree, 25 Minutat 07 tf®ig4ti Ww, 4 did(pr'; of 1140 f+et w a polr11, 4. Nord, 14 ,dpiradt 114 minuza S11 Second: Wwt, 104unce 90 9-11 flag W A Patna; S. Noah 76 4amcd Dt mtTottet 02 owdi Tw; 0 d0w rc of ASS fset to N begicuting @f a cwNa to Ole h4hr thratIgh o e"It4l ;ogle of 9w 4ogtcet i0 mirtyw 51 tam -As, W sn me e 001.16 feel with 4 #wd ba4r ng orSaath S4 4t4ma® 46 Mitwft4111 444046 6ttA 6 4194119 Of 34,79 rat:, to;' point,, 6, gnth 11 deprrai 41 MIAMI! 07 M0attll MA 6 dist4n`t; 0161.10 feat w t pain, •SM0 paip the Aauth litre of r4i4 wens, 4014 ballis the Neffih 6&-of.WeY Sang orWd Mucalttg FAIN,. Tharce 41AAg the Savo line of aoid Gtspainc iadspwnd;at School ()W01 pure, tame teing tho Natth rigiN.af-wsr line ar6a14 1611%imetg Mid, Smith 74 cit 0vh 19 minatttl 53 sc M41 W01% a cltstartcc of IZ.OA itot 10 flys pvint pf DAW(nning ptid 6IIa%utj16 2,127 4quait that Of ,1.%11 et te4, TWO at teax �y m 0 a: W :2Q 0 LO ww V)Q 0 L,, n. V) 0 Ww CL-j Y �uLt = oo: ■ EXHIBIT "A-4" Exhibit "A-4" shall be attached upon completion. THIS MEMORANDUM OF LEASE AGREEMENT, made and entered into as of this al day of ;Ju YtQ- 2000, by and between The City of Grapevine, Texas ("GRAPEVINE"), a municipal corporation, incorporated under Article XI, Section 5 of the Constitution of the State of Texas, and the Grapevine-Colleyville Independent School District ("GCISD"), and Metricom, Inc., a Delaware Corporation Authorized to do business in Texas("TENANT"). 1. GRAPEVINE and GCISD, on the terms and conditions set forth in an unrecorded document dated ne 2000, 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 and GCISD, certain property ("Leased Site") which is described in Exhibit "A3" attached hereto and incorporated herein by this reference and which is located at 3050 Mustang Drive, in the City of Grapevine, in the County of Tarrant, in the State of Texas, within the property of GRAPEVINE and GCISD which is described in Exhibit "Al" or "A2" attached hereto and incorporated herein by this reference ("OWNERS' Property"), together with a non-exclusive easement to access the Leased Site and to install and maintain utilities, for an initial term commencing on Jun 2 a 9 , 2000, and expiring on the fifth anniversary of the commencement of the initial term, which term may be extended by TENANT for 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 and GCISD 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, GCISD, and TENANT have duly executed this Memorandum of Lease Agreement as of the date first above written. OWNERS: The CITY OF GRAPEVINE, Texas, a municipal corporation, incorporated under Article XI, Section 5 of the Constitution of the State of Texas and the Grapevine-Colleyville Independent School District The City of Grapevine, Texas By: _ Name: Its: _ Approved as to form: City Attorney By: _ Name: Its: jLLEENDENT SCHOOL TENANT: METRICOM INC. : Oro: 6/16/00, 2 59 Pq B" Recording Requested by: METRICOM, INC. 980 University Avenue Los Gatos, CA 95032 When Recorded Mail to: METRICOM, INC. Attn: Network Real Estate 980 University Avenue Los Gatos, CA 95032 (space above this line for Recorder's use only) Memorandum of Lease HIS MEMORANDUM OF LEASE is entered into as of The City of Grapevine and GCISD, a ("Lessor") and METRICOM, INC., a Delaware office at 980 University Avenue, Los Gatos, California ("Lessee"). AGREEMENT by and between corporation with an 1 LEASE OF PREMISES. For the purpose of installing, operating, and maintaining a communication facility and other improvements, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, certain premises more particularly described in, and on the terms and conditions more particularly set forth in, that certain Communication Facility Lease dated 2000 (the 'Lease") by and between Lessor and Lessee, which terms and conditions are hereby incorporated by reference. 2 The subject property affected by the recordation of this Memorandum of Lease is described in Attachment A attached hereto and incorporated herein by reference. The portion of the property being leased to Lessee pursuant to this Memorandum of Lease and the Lease is referred to as the "Premises" in the Lease and is described in Attachment B attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. Lessor: a By: [name typed] Its: Metricom: METRICOM, INC., a Delaware corporation 1-3 [name typed] Its: i11j "A " �a,n@ tr&wf or{ar.1. 1=jed in o P.R Splane survey, Ab3trea ma, 1463, "%rant County, Texas ark qq tha aa, a treat y deecria5.7 In tnalrument of rack In vela ,z OSS, Pip 8, of Gia 00e4 Hu=o of TsaanI Cnu,n4, Tam and" MCrp PRUUIWN ZANU1W ay Mlm6 and bcundt of f$awV aapinNng nt is point for comer fauna al a roncc cwnar fcr tha:}cul eltt cornar of tha har to dQtcr!!H4 q'a -t. 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North iG CiCCd 01la,I,ea Q2 ncd� F.;h o d'uS�,'tsc arf+S„4s Ccet ra IItiK oe�initing of a cvc m ri)t 64 ,r chraupR c etnttil tnQ1s of RR degnctl 10 7►1{nu%j 51 tuar, ,, an ; r IN qi aNa ct'1`iA fe4t w1m a ei�W t—.Qrina S9 4t: r!aa,}6 Mine: adi; zju (IN4,79 rev to � Nint; 14 dnrizc 41 mintitot tY1 t=r,dt Lalr, a distant. of 61.9a f4t4 w ►prim, Eiitiiy A+IrQ Iht scull ji�r arrt4d ti;tpev$r� iTdr�tn�enr Sot a1 D'+auw; arcs, Gls4 bei(1� th:Not,7 ri;hW.ww ling 01,41W Mumma Rued; i t'.� clrn� rii: &Doth lie o1” sOIQ Gttpnrinc lnde�cr�rmt S�cht�,�l Ri+�Cft:� q'�t, tdttt,' Deln� tt� T3a.'tfi, riQlil•of•wsy Ilr,c e('6ald Wzsq AGtd, Saute 74 01Czrj 19 minatt; 33 34;W; W996 a dIMMa Or II.Eit1 lkot to c'u int ai Daglnnln; AM COM"xiLM 2,}2711 U*- tial w U419 actu, rwsa ar I"%, EXHIBIT "A-4" Exhibit "A-4" shall be attached upon completion.