HomeMy WebLinkAboutItem 20 - Tower & Ground Lease Agreement Chapel MonopolerttM 0 Z0
MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: BRUNO RUMBELOW, ACTING CITY MANAGER 3 Z
MEETING DATE: NOVEMBER 15, 2005
SUBJECT: TOWER & GROUND LEASE AGREEMENT WITH FIBER
TOWER, INC. FOR MINTERS CHAPEL MONOPOLE
RECOMMENDATION:
City Council approve a resolution to enter a Tower/Ground Lease Agreement with Fiber
Tower, Inc. for the collocation of antennae and installation of communications equipment
at the Minters Chapel Monopole.
FUNDING SOURCE:
N/A
BACKGROUND:
The company is requesting the use of tower space to provide for three microwave
antennae dishes that would replace the use of conventional T1 lines.
The terms of the agreement are outlined in the Resolution, Exhibit A and in the attached
lease agreement. The dishes are 24" in diameter and will be attached to the pillar of the
tower. The accompanying equipment box is approximately 4'x4'. The lease agreement
allows for up to four dishes to be installed, with rent set at $14,000 for the first three
dishes and $4,000 for the final dish, if expansion occurs.
Fiber Tower, Inc. is in compliance with all of the required regulations per an
administrative and engineering review.
The City Attorney and Staff have reviewed the terms of the agreement and recommend
approval of the agreement.
November 10, 2005 (10:58AM)
1 r
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS, APPROVING A TOWER/GROUND
LEASE AGREEMENT WITH FIBERTOWER
CORPORATION FOR THE INSTALLATION OF
COMMUNICATIONS EQUIPMENT AND PROVIDING AN
EFFECTIVE DATE
WHEREAS, on November 15, 2005 the City of Grapevine (hereinafter referred to
as "Landlord") is in agreement to enter into a Tower/Ground Lease Agreement with
FiberTower Corporation, a corporation organized and existing under the laws in
Delaware (hereinafter referred to as "Tenant"); and
WHEREAS, the Landlord and the Tenant desire to enter into said Tower/Ground
Lease Agreement through the installation of communications equipment on the Minters
Chapel Monopole and through the installation of an equipment shelter, and according to
specific compensation terms; and
WHEREAS, the terms of the agreement are attached as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF GRAPEVINE, TEXAS:
Section 1. That all matters stated in the preamble of this resolution are true
and correct and are hereby incorporated into the body of this resolution as if copied in
their entirety.
Section 2. That the City Manager is hereby authorized to enter into said
Tower/Ground Lease Agreement as attached.
Section 3. That all matters stated in the preamble of this resolution are true
and correct and are hereby incorporated into the body of this resolution as if copied in
their entirety.
Section 4. That this resolution shall take effect from and after the date of its
passage.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS on this the 15th day of November, 2005.
ATTEST:
I al, 'A', 1: 41 ME I I no] I WAIIL lk
GROUND/TOWER LEASE AGREEMENT TERMS
CITY OF GRAPEVINE AND FIBERTOWER CORPORATION
MINTERS CHAPEL MONOPOLE
1 Compensation Provisions Established on Graduated Scale Per the Number of
Dishes Installed on Tower:
a. 1St Dish= $10,000 annually ($6,000 total)
b. 2nd Dish = $4,000 annually ($10,000 total)
C. 3rd Dish = $4,000 annually ($14,000 total)
d. 4th Dish = $4,000 annually ($18,000 total)
2. 25 year lease agreement in 5 year renewal terms.
3. Renewal terms subject to lease increase of 15% or the CPI whichever is greater.
4. Ground Equipment
5. Equipment to be installed in 'dead space' of antennae array currently installed on
tower.
RES. NO. 4
THIS GROUND AND TOWER LEASE AGREEMENT ("Lease"), is entered into as of this 151" day of
November, 2005, by and between The City of Grapevine Texas ("GRAPEVINE"), a home -rule municipal
corporation, and FiberTower Corporation being a corporation organized and existing under the laws of the State
of Delaware, and authorized to do business in Texas ("TENANT").
In consideration of the premises and of the mutual obligations and agreements in this Lease, the parties agree as
follows:
THE LEASED SITE
A. GRAPEVINE is the titleholder of that certain real property commonly known as Minters Chapel
Monopole, 1900 Minters Chapel, City of GRAPEVINE, County of Tarrant, State of Texas, which is described on
the attached Exhibit "A" ("OWNER'S Property").
B. TENANT hereby desires to lease a portion of OWNER'S Property and a certain portion of the tower
("Tower") located on OWNERS' Property (the "Leased Site"), together with obtaining a right of access and a
right to install utilities on the Leased Site. The Leased Site which is the subject of this Lease is located within
OWNERS' Property, is approximately 300 square feet, and is situated substantially as shown on the attached
Exhibit `B" and with respect to the space on the Tower, its location and orientation are set forth on the attached
Exhibit "C" (any sketch in Exhibits `B" or "C" may not be to scale and therefore are not intended to be used for
measurement purposes). TENANT shall have the right to run cables, wires, conduits and pipes under, over and
across OWNERS' Property to connect TENANT's equipment on the Tower to its equipment in its facility located
on the Leased Site, subject to the approval of GRAPEVINE as provided for in Section 4.A. of this Lease.
GRAPEVINE hereby grants to Tenant the right to use OWNERS' Property when Tenant is constructing,
operating, removing, replacing, servicing, securing, or maintaining its communications facility, subject to the
terms and conditions contained herein.
2. LEASE AND EASEMENT
GRAPEVINE leases the Leased Site to TENANT and agrees that Tenant shall have access to the Leased Site for
the purposes of constructing, installing, operating and maintaining the communications facility, and to install,
remove, replace, and maintain utility cables, conduits and pipes, and during the continuation of this agreement,
and any renewals thereof, ingress and egress is hereby granted to Tenant seven (7) days a week, twenty-four (24)
hours a day. It is agreed, however, that only authorized engineers, employees, or properly authorized contractors,
subcontractors, agents of Tenant or GRAPEVINE, FCC inspectors, or persons under their direct supervision, will
be permitted to enter the Leased Site.
3. TERM AND RENT
A. The initial term of this Lease (`the Initial Term") shall be five years and shall commence on the date first
noted above. TENANT shall pay GRAPEVINE in accordance with the following rate schedule (the "Rate
Schedule"):
Number of Microwave Dishes
One dish
Two dishes
Three dishes
Four dishes
Annual Rental (Initial Term)
$6,000 (Six Thousand Dollars)
$10,000 (Ten Thousand Dollars)
$14,000(Fourteen Thousand Dollars)
$18,000(Eighteen Thousand Dollars)
The rent as determined by the Rate Schedule for one dish shall be the six thousand dollars ($6,000 as full
rental per annum for the initial Term (the "Rent"). The first Annual payment of Rent (the "Initial Payment") shall
be payable within thirty (30) days of the Commencement Date. Subsequent Annual Payments shall be payable on
or before the anniversary date of the Lease of each year. If TENANT increases the number of dishes after the
annual payment of Rent has been tendered, TENANT shall pay a pro -rated amount in accordance with the Rate
Schedule, and such payment shall be payable within thirty (30) days of installment of subsequent dish(es). All
payments due under this Agreement shall be sent to GRAPEVINE's address indicated under Section 12 below, t(`
the attention of the City Manager.
B. Thereafter, unless TENANT advises GRAPEVINE in writing not less than ninety (90) days prior to the
expiration of the Initial Term or any extension period that it does not desire additional extensions, this Lease shall
automatically renew and extend for up to four (4) additional five (5) year extension periods, each beginning upon
the expiration of the term then in effect.
C. The Annual Rent for each extension period (after the Initial Term) shall be the Annual Rent in effect for
the final year of the prior extension period, increased by either fifteen percent (15%) or the percentage increase in
the Consumer Price Index (CPI) over the previous five year period, whichever is greater.
D. Should this Lease still be in effect at the conclusion of all of the extension periods provided for herein,
this Lease shall continue in effect on the same terms and conditions [other than Annual Rent which shall be an
amount equal to the one twelfth (1/12) of the Annual Rent in effect for the preceding year, increased by three
percent (3%)] for a further period of one (1) month, and for like monthly periods thereafter, until and unless
terminated by either party by giving to the other written notice of its intention to so terminate at least thirty (30)
days before the expiration of the term then in effect.
E. TENANT hereby agrees to supply GRAPEVINE a performance bond in the amount of Six Thousand
Dollars ($6,000) for the sole purpose of assuring TENANT's payment of all sums that may become due to
GRAPEVINE under this Lease (including without limitation, any and all Rent), as well as the performance of all
obligations under this Lease. In the event that TENANT fails either to pay GRAPEVINE any sum of money due
under this Lease or to perform any obligation required of TENANT under this Lease, GRAPEVINE shall provide
TENANT written notice of such failure, together with sufficient documentation of the amount that is due or the
obligation that needs to be performed (the "Late Notice"). If TENANT has not paid the sum within ten (10) days,
or performed the obligation within sixty (60) days, after the date of the Late Notice, GRAPEVINE may access the
bond upon thirty (30) days' prior written notice to TENANT. TENANT shall keep the performance bond in place
throughout Initial Term and any extension periods of this Lease.
4. USE OF THE LEASED SITE
A. TENANT may use the Leased Site to construct, operate, remove, replace, service, maintain, secure and
operate a communications facility, including, without limitation, required TENANT antenna array (as such
antenna array may be modified, added to, or substituted from time to time) and antenna support structures, and for
any other uses incidental thereto. The placement of first three equipment dishes shall be positioned as noted in
Exhibit C. The additional dish may only be placed on the tower on same array level or in accordance with the
non-interference provisions in the proceeding subsections. TENANT may construct a fence around the Leased
Site, subject to GRAPEVINE's approval, said approval not to be unreasonably withheld. Each such antenna array
or antenna support structure may be configured as requested by TENANT from time to time, provided TENANT
obtains, pursuant to sub -paragraph 8, all permits and approvals required by applicable jurisdictions for such
requested configuration. GRAPEVINE shall have the right to approve plans for any improvements, including any
fence or antennae array, installed by TENANT on the Leased Site, such approval not to be unreasonably withheld;
provided that GRAPEVINE must notify TENANT of its approval or disapproval of any such plans within ten (10)
days after the submission of such plans by TENANT to GRAPEVINE, and in the event that GRAPEVINE fails to
so notify TENANT, that party shall be deemed to have approved such plans. GRAPEVINE shall be notified in
writing about any scheduled construction times and major repair times unless an emergency exists.
(1) TENANT covenants and agrees that Tenant's equipment, its installation, operation, and
maintenance will not interfere with the operation of existing radio or electronic equipment at the Leased Site, not
the operation of the elevated water storage facility located on OWNERS' Property described in Exhibit "A"
herein.
IN
(2) TENANT shall coordinate with GRAPEVINE and all existing operators of radio equipment at the
Tower to insure that TENANT's frequencies and antenna location will be compatible with equipment existing at
the Leased Site on the effective date of this Agreement.
(3) In the event there is harmful interference to the existing radio or electronic equipment on Owner's
Property TENANT shall promptly make all reasonable efforts to eliminate any harmful interference, if caused by
TENANT's equipment, within ten (10) days after notice from GRAPEVINE or such other operator to TENANT
advising of the interference.
(4) If said interference to said existing operator cannot be eliminated within thirty (30) days,
TENANT shall suspend operations (transmissions) at the site while the interference problems are studied and a
means is found to mitigate them.
(5) If said interference cannot be eliminated, then TENANT shall, without further penalty or liability,
terminate this Lease upon immediate notice to GRAPEVINE and within thirty days remove its equipment shelter,
antenna facilities, concrete pads, cables, generators, fences, and any other TENANT -owned equipment from the
Leased Site.
(6) If any interference occurs to GRAPEVINE's public safety transmission, whether existing or
subsequent as long as GRAPEVINE is operating in compliance with applicable laws, and is caused by TENANT,
TENANT will immediately cease all operations until the interference is cured.
(7) From time to time GRAPEVINE may grant to other entities the right to operate communications
facilities at the Tower and/or the right to install antennas in connection with the operation of such facilities or
other communications facilities; provided, however that the operation of such facilities and antennas by other
occupants shall be required to comply with all of the requirements contained herein relative to TENANT'S
equipment. TENANT further agrees that it will comply with all applicable rules and regulations of the Federal
Communications Commission, and electrical codes of the City and/or State. Under this Lease, GRAPEVINE
assumes no responsibility for the licensing, operations and/or maintenance of Tenant's equipment. TENANT'S
right to use the Tower shall not interfere with GRAPEVINE's superior right to use the same as an integral part of
the City's water system.
(8) GRAPEVINE acknowledges that TENANT's ability to use the Leased Site for its intended
purposes is contingent upon TENANT's obtaining and maintaining, both before and after the Commencement
Date, all of the certificates, permits, licenses and other approvals (collectively, "Governmental Approvals") that
may be required by any federal, state or local authority for the foregoing uses and improvements to the Leased
Site desired by TENANT. GRAPEVINE shall cooperate with TENANT in TENANT's efforts to obtain such
Governmental Approvals and shall take no action that would adversely affect TENANT's obtaining or
maintaining such Governmental Approvals. Should GRAPEVINE be notified or cited by any State or Federal
regulatory agency that OWNERS' Property is not in compliance with said agencies regulations due to TENANT's
installation of improvements under this Lease, GRAPEVINE will immediately notify TENANT of said non-
compliance and if TENANT does not cure the conditions of non-compliance within the time frame allowed by the
citing agency, GRAPEVINE may terminate this Lease.
;l ; u I EN 10130
A. In the event any application for certificate, permits, licenses or other approvals will be too costly, time
consuming or there is a reasonable likelihood that said application will be rejected in the opinion of TENANT or
any certificate, permit, license, or approval issued to TENANT is canceled, expires or lapses or is otherwise
withdrawn or terminated by governmental authority or soil boring tests and/or environmental studies are found to
be unsatisfactory so that TENANT, in its sole discretion determines that it will be unable to use the Leased Site
for the purposes set forth herein, TENANT shall have the right to terminate this Lease. Prior written notification
to GRAPEVINE of TENANT'S intent to exercise its right to terminate this Lease shall be by certified mail, return
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receipt requested, and shall be effective upon receipt of such notice by GRAPEVINE as evidenced by the return
receipt. Any Annual Rent paid to such termination date shall be retained by GRAPEVINE.
B. In addition, and provided that TENANT is not then in default under this Lease, TENANT may, during the
Initial Term or any extension period, upon one (1) year's written notice to GRAPEVINE, terminate and cancel
this Lease if TENANT determines that the Leased Site has become unsuitable for TENANT's operations, upon
payment in cash to GRAPEVINE of a termination fee equal to six (6) months' rent at the rate then in effect. As to
such termination fee, TENANT shall receive a credit equal to the amount of any unearned rent as of the date of
such termination. This Lease may be terminated by either party upon forty-five (45) days' prior written notice to
the other party upon a default of any material covenant or term hereof by the other party which is not cured within
forty-five (45) days of receipt of written notice of default; or, if such default is not curable within forty-five (45)
days, if the defaulting party fails to commence such cure within forty-five (45) days or fails thereafter diligently to
prosecute such cure to completion; provided that the grace period for any monetary default shall be ten (10) days
from receipt of notice. This Lease may also be terminated by TENANT on at least forty-five (45) days' prior
written notice to GRAPEVINE if (i) TENANT .is unable to obtain any requisite permit or authorization or any
such permit or authorization is subsequently revoked or not renewed; (ii) any physical equipment or electronic
emissions materially interfere with the operation of the Communication Equipment.
6. ASSIGNMENT AND SUBLETTING
A. Except to a "Partner Company", "Affiliate" or "Subsidiary" of TENANT or an "Affiliate" or
"Subsidiary" of a "Partner Company" of TENANT (as defined below), TENANT shall not assign this Lease, or
allow it to be assigned, in whole or in part, by operation of law or otherwise, or mortgage or pledge the same, or
sublet the Leased Site, or any part thereof, without the prior written consent of GRAPEVINE, such consent not to
be unreasonably withheld or delayed. GRAPEVINE's consent to an assignment or sublease shall be deemed given
if GRAPEVINE does not respond to TENANT's request within thirty (30) days after GRAPEVINE's receipt of
such request.
B. Each of the partners of TENANT is a Partner Company. An Affiliate of an entity is any entity fifty-one
percent (51%) or more of the ownership of which is owned, directly or indirectly, by such entity or under
common ownership with such entity. A Subsidiary of an entity is any entity eighty percent (80%) or more of the
ownership of which is owned by such entity.
C. No consent by GRAPEVINE to any assignment or sublease by TENANT shall relieve TENANT of any
obligation to be performed by TENANT under this Lease, whether arising before or after the assignment or
sublease. The consent by GRAPEVINE to any assignment or sublease shall not relieve TENANT from the
obligation to obtain GRAPEVINE's express written consent to any other assignment or sublease.
D. Any sale or other transfer, including by consolidation, merger or reorganization, of a majority of the
voting stock of TENANT, if TENANT is a corporation, or any sale or other transfer of a majority in interest
(whether of profits, losses, capital or voting power) or a majority of the persons comprising the managers of the
partnership, if TENANT is a partnership, shall not be an assignment for purposes of this Paragraph 6.
E. Notwithstanding anything to the contrary contained in this lease, TENANT may assign, mortgage, pledge,
hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on
behalf of any financing entity to whom TENANT (i) has obligations for borrowed money or in respect of
guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has
obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of
guaranties thereof.
7. EQUIPMENT AVAILABILITY
GRAPEVINE needs the ability to temporarily remove any equipment or facilities in order to maintain the Tower
on the Leased Site. Cost to remove any TENANT equipment or facilities would be borne by TENANT. Removal
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of TENANT'S equipment shall be performed by TENANT on ninety (90) days prior written notice from
GRAPEVINE. Reattachment of TENANT'S facilities or equipment shall be by TENANT on notice from
GRAPEVINE that the maintenance which necessitated the equipment or facilities removal has been completed.
TENANT must notify GRAPEVINE prior to entering the Tower or climbing or scaling the Tower by contacting
the City. TENANT will not be provided unattended access to the Tower. GRAPEVINE will provide TENANT
with a contact person to ensure that TENANT has twenty-four hour, seven days a week, access to the Tower.
During any period of GRAPEVINE's maintenance that requires the removal of TENANT'S equipment or
facilities from said Tower, GRAPEVINE shall allow TENANT to place a portable mounted antenna, a.k.a. "Cell
On Wheels" (COW), on OWNERS' Property in order for TENANT to provide continuous wireless
telecommunications service. There shall be no additional fee or rental due GRAPEVINE for this temporary
placement. A Special Use Permit may be required to place this temporary equipment on this site.
Only officials with the F.C.C. and qualified and adequately insured agents, contractors or persons under
TENANT'S direct supervision will be permitted to climb or scale the Tower or to install or remove TENANT'S
equipment or facilities from the Tower. GRAPEVINE retains the right to permit their own employees and agents
and employees and agents of subsequent users of the Tower, to climb or scale the Tower for all purposes that do
not interfere with TENANT'S use of the Tower, and so long as such subsequent user complies with the terms of
this Lease.
Q1 0 310 1 Oil:
1 i '
A. TENANT hereby agrees to indemnify, defend, and hold GRAPEVINE, its officials, employees, and
agents harmless from and against any and all claims of liability for personal injury, bodily injury, death or
property damage, including attorney's fees, to the extent that they result from or arise out of (i) the acts or
omissions of TENANT, its agents and employees in, on or about the Tower and/or the Leased Site, excepting
however, such claims or damages to the extent due to or caused by the acts or omissions of GRAPEVINE, its
employees or agents, (ii) TENANT's breach of any term or condition of this Lease on TENANT's part to be
observed or performed and/or (iii) TENANT'S action or inaction relative to this Lease.
B. GRAPEVINE hereby agrees to separately release and hold, to the extent allowed by law, TENANT
harmless from and against any and all claims of liability for personal injury, bodily injury, or property damage to
the extent that they result from or arise solely out of (i) the acts or omissions of GRAPEVINE, its agents and
employees in, on or about the Tower and/or the Leased Site, excepting, however, such claims or damages to the
extent due to or caused by the acts or omissions of TENANT, its employees or agents, and/or (ii) GRAPEVINE's
respective breach of any term or condition of this Lease on GRAPEVINE'S part to be observed or performed.
C. TENANT shall provide GRAPEVINE with a certificate of insurance issued by an insurance company
licensed to do business in Texas indicating that TENANT carries commercial general liability insurance with
limits of liability thereunder of not less than $1 million combined single limit for personal injury, bodily injury, or
property damage together with an endorsement for contractual liability. Such shall name GRAPEVINE as an
additional insured with respect to the Leased Site. TENANT will provide GRAPEVINE with a renewal
certificate within ten (10) business days of GRAPEVINE's written request for such certificate. Any insurance
required to be provided by TENANT under this Paragraph 8 may be provided by a blanket insurance policy
covering the Leased Site and other locations of TENANT, provided such blanket insurance policy complies with
all of the other requirements of this Lease with respect to the type and amount of insurance required. TENANT
may also fulfill its requirements under this Paragraph 8 through a program of self-insurance provided that
GRAPEVINE approves of said program. If TENANT elects to self -insure, then TENANT shall furnish
GRAPEVINE with a letter stating that there is a self-insurance program in effect that provides for the same, or
greater, coverage than required of TENANT herein.
D. TENANT shall carry comprehensive auto insurance covering Tenant and the additional insureds against
all claims for injuries to members of the public and damage to property of others arising from the use of motor
vehicles, and shall cover operation on and off the Leased Site of all motor vehicles licensed for highway use,
whether they are owned, non -owned, or hired. The liability coverage shall not be less than $1 million combined
single limit for bodily injury and property damage.
9. UTILITIES
TENANT shall be responsible directly to the serving entities for all utilities required by TENANT's use of the
Leased Site, however, GRAPEVINE agrees to cooperate with TENANT in its efforts to obtain utilities from any
location provided by GRAPEVINE or the servicing utility. If the Power Sharing Arrangement terminates,
TENANT will install an electric meter for its utility services and TENANT shall pay all costs related to said
electric service.
i11,1' 1 $ .. l
TENANT's antennas and equipment shall remain personal to and the property of TENANT. At the
termination or expiration of this Lease, TENANT shall remove its antennas and/or equipment. TENANT (i) shall
repair any damage caused by such removal, (ii) with respect to any land leased shall remove all of its equipment,
and (iii) shall otherwise surrender the Leased Site at the expiration of the term (as the same may have been
extended or the earlier termination thereof) in good condition and at a minimum, as nearly as is reasonably
possible to its condition at the time of the execution of this Lease, ordinary wear and tear excepted. At the end of
this Lease, TENANT may offer to sell its antennas and/or equipment to GRAPEVINE.
GRAPEVINE waives any lien rights it may have concerning TENANT's antennas and equipment, which are
deemed TENANT's personal property and not fixtures, and TENANT has the right to remove the same at any
time without GRAPEVINE's consent.
GRAPEVINE acknowledges that TENANT has or may enter into a financing arrangement including
promissory notes and financial and security agreements for the financing of the TENANT's antennas and
equipment (the "Collateral") with a third party financing entity (and may in the future enter into additional
financing arrangements with other financing entities). In connection therewith, GRAPEVINE (i) consents to the
installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees
that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any Rent due
or to become due and that such Collateral may be removed at any time without recourse to legal proceedings.
11. TENANT DEFAULTS
A. The occurrence of any one or more of the following events shall constitute an "Event of Default"
hereunder by TENANT:
(1) The failure by TENANT to make any payment of rent or any other payment required to be made by
TENANT hereunder, as and when due, where such failure shall continue for a period of ten (10) days after written
notice thereof is received by TENANT from GRAPEVINE.
(2) The failure by TENANT to observe or perform any of the covenants or provisions of this Lease to be
observed or performed by TENANT, other than as specified in Paragraph 11.A. (1), where such failure shall
continue for a period of thirty (30) days after written notice thereof is received by TENANT from GRAPEVINE;
provided, however, that it shall not be deemed an Event of Default by TENANT if TENANT shall commence to
cure such failure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion.
(3) Tenant is adjudicated as bankrupt or makes any assignment for the benefit of creditors; or if
Tenant becomes insolvent or GRAPEVINE reasonably believes itself to be insecure.
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B. If there occurs an Event of Default by TENANT, in addition to any other remedies available to
GRAPEVINE at law or in equity, GRAPEVINE shall have option to terminate this Lease and all rights of
TENANT hereunder.
C. If there occurs an Event of Default by TENANT, GRAPEVINE shall not have the right, prior to the
termination of this Lease, to re-enter the Leased Site and/or remove persons or property from the Leased Site or
the Tower and either (a) declare this Lease at an end, in which event TENANT shall immediately remove
the Antennae Facilities and pay GRAPEVINE a sum of money equal to the total of (i) the amount of the
unpaid rent accrued through the date of termination; (ii) the amount by which the unpaid rent reserved
for the balance of the term exceeds the amount of such rental loss that the TENANT proves could be
reasonably avoided (net of the costs of such reletting); and (iii) any other amount necessary to
compensate GRAPEVINE for all detriment proximately caused by TENANT's failure to perform its
obligations under the Lease, or (b) without terminating this Lease, relet the Leased Site, or any part
thereof, for the account of TENANT upon such terms and conditions as GRAPEVINE may deem
advisable, and any monies received from such reletting shall be applied first to the - expenses of such
reletting and collection, including reasonable attorneys' fees, any real estate commissions paid, and
thereafter toward payment of all sums due or to become due to GRAPEVINE hereunder, and if a
sufficient sum shall not be thus realized to pay such sums and other charges, TENANT shall pay
GRAPEVINE any deficiency monthly, notwithstanding that GRAPEVINE may have received rental in
excess of the rental stipulated in this Lease in previous or subsequent months, and GRAPEVINE may
bring an action therefor as such monthly deficiency shall arise.
D. In an Event of Default, which is not cured under Paragraph 11 herein, TENANT shall have an additional
thirty (30) days from the effective date of termination to remove all of TENANT's equipment from the Leased
Site.
12. NOTICES
All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly given if
sent by certified mail, return receipt requested, addressed as follows (or to any other mailing address which the
parry to be notified may designate to the other party by such notice) or as otherwise provided under applicable
state law. Notice by any other method (whether by hand -delivery, overnight delivery service, or otherwise) shall
only be deemed effective upon receipt by the intended recipient. Should GRAPEVINE or TENANT have a
change of address, the other party shall immediately be notified as provided in this Paragraph of such change.
Unless GRAPEVINE otherwise specifies in writing, rent checks from TENANT shall be sent to the person listed
below to whom notices are sent.
TENANT:
FiberTower Corporation
720 Avenue F, Suite 109
Plano, Texas 75074
Attention: Real Estate
Telephone Number: (972) 543-6013
OWNERS:
The City of GRAPEVINE, Texas, a
municipal corporation
Atm: Office of the City Manager
Address: P.O. Box 95104
GRAPEVINE, Texas 76099
Telephone Number: (817)410-3105
Facsimile Number: (817)410-3002
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With a copy to:
Boyle & Lowry, L.L.P.
Attn: L. Stanton Lowry
4201 Wingren, Suite 108
Irving, Texas 75062
Telephone Number: (972) 650-7100
Facsimile Number: (972) 650-7105
13. SALE OR TRANSFER BY GRAPEVINE
Should GRAPEVINE, at any time during the term of this Lease, sell, lease, transfer or otherwise convey all or any
part of OWNERS' Property to any transferee other than TENANT, then such transfer shall be under and subject
to this Lease and all of TENANT's rights hereunder.
14. HAZARDOUS SUBSTANCES
A. GRAPEVINE warrants and agrees that to its knowledge, neither GRAPEVINE or any third party has
used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous
Material (as defined in Paragraph 143.) on, under, about or within OWNERS' Property in violation of any law or
regulation. GRAPEVINE and TENANT each agree that they will not use, generate, store or dispose of any
Hazardous Material (as defined in Paragraph 14.B.) on, under, about or within OWNERS' Property in violation of
any applicable law or regulation. TENANT agrees that it will conduct all of its operations and activities on the
Leased Site in compliance with all applicable environmental laws.
B. GRAPEVINE and TENANT each agree to defend and indemnify, to the extent allowed by law, the other
and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs
(including reasonable attorneys' fees and costs) arising from any breach of any warranty or agreement contained
in Paragraph 14.A. As used in Paragraph 14.A., "Hazardous Material" shall mean any substance, chemical or
waste identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation
(including petroleum and asbestos).
15. CONDEMNATION
A. In the event the whole of OWNERS' Property, including without limitation the Leased Site and the
Tower, shall be taken or condemned, either temporarily or permanently, for public purposes, or sold to a
condemning authority under threat of condemnation to prevent taking, then this Lease shall forthwith
automatically cease and terminate.
B. GRAPEVINE shall receive the entire condemnation award for land, the Tower and such other
improvements as are paid for by GRAPEVINE, and TENANT hereby expressly assigns to GRAPEVINE any and
all right, title and interest of TENANT now or hereafter arising in and to any such award. TENANT shall have
the right to recover from such authority, but not from GRAPEVINE, any compensation as may be awarded to
TENANT on account of the leasehold interest, moving and relocation expenses, and depreciation to and removal
of the personal property and fixtures of TENANT.
16. TAXES
A. TENANT shall be liable for and shall pay to the applicable taxing authority if billed directly to TENANT,
or to GRAPEVINE if billed to GRAPEVINE, upon thirty (30) days prior written notice from GRAPEVINE, any
and all taxes and assessments levied against any personal property or trade or other fixtures placed by TENANT
in or about the Leased Site.
B. TENANT shall pay as additional rent any increases in real property taxes levied against GRAPEVINE's
Property, including the Tower, as a result of the improvements constructed by TENANT on the Leased Site.
TENANT will not be responsible for any increases in real property taxes that are a result of reassessment of
OWNERS' Property due to any sale or transfer of ownership thereof. As a condition of TENANT's obligation to
pay such tax increases, GRAPEVINE shall provide TENANT with documentation from the taxing authority
representing the amount owed.
17. QUIET ENJOYMENT AND NON-INTERFERENCE
GRAPEVINE warrants and agrees that TENANT, upon paying the rent and performing the covenants herein
provided, shall peaceably and quietly have and enjoy the Leased Site
As a consequence of the proposed twenty-four (24) hour daily basis of operation by TENANT, GRAPEVINE
acknowledges that any action undertaken or permitted by GRAPEVINE in making repairs, alterations, additions
or improvements to the Leased Site or the Tower that might interfere with, suspend, cut-off or terminate access to
or use by TENANT of the Leased Site or TENANT's antennas or equipment, including without limitation, air-
conditioning and utilities thereto, could cause inconvenience, expense and economic loss to TENANT.
Therefore, GRAPEVINE agrees (i) to use its best efforts to minimize such inconvenience, possible loss or
expense to TENANT by using its best efforts not to cause or permit any interruption or interfere with the
operations of TENANT's antennas or equipment, particularly during the hours of 7:00a.m. to 10:00a.m. and 4:00
p.m. to 7:00 p.m. on any weekday, and (ii) to use its best efforts to give TENANT advance notice of any repairs,
alterations, additions or improvements to be made with respect to the maintenance and operation of the Tower and
the Leased Site or of any planned shut downs associated with the Tower for scheduled or routine maintenance that
might adversely affect the operation of TENANT's communications facility, antennas or equipment.
19. BROKERS
GRAPEVINE and TENANT represent to each other that they have not negotiated with any real estate broker in
connection with this Lease. GRAPEVINE and TENANT agree that should any claim be made against the other
for a real estate broker's commission, finder's fee or the like by reason of the acts of such party, the party upon
whose acts such claim is predicated shall indemnify and hold the other party free and harmless from all losses,
costs, damages, claims, liabilities and expenses in connection therewith (including, but not limited to, reasonable
attorneys' fees) and shall defend such action by legal counsel reasonably acceptable to the indemnified other
party.
20. ESTOPPEL CERTIFICATES
A. TENANT, at the request of GRAPEVINE, shall provide GRAPEVINE with a certificate stating: (i) that
this Lease is unmodified and in full force and effect (or, if there has been any modification, that the same is in full
force and effect as modified and stating the modification); (ii) whether or not, to TENANT's knowledge, there are
then existing any set -offs, or defenses against the enforcement by GRAPEVINE of any of TENANT's
agreements, terms, covenants or conditions hereof (and, if so specifying the same); and (iii) the dates, if any, to
which the rent has been paid in advance.
B. GRAPEVINE, at the request of TENANT, shall provide TENANT with a certificate stating: (i) whether
GRAPEVINE has any claim against TENANT and if so, stating the nature of such claim; (ii) that GRAPEVINE
recognizes TENANT's right to TENANT's antennas, equipment and other property; (iii) that TENANT has the
right to remove TENANT's equipment and other property from the Leased Site notwithstanding that same may be
considered a fixture under local law; and (iv) that GRAPEVINE has no interest in and disclaims any interest to
TENANT's equipment and other property.
21. MISCELLANEOUS PROVISIONS
A. GRAPEVINE warrants and agrees that GRAPEVINE is seized of good and sufficient title to and interest
in the Leased Site and has full authority to enter into and execute this Lease and that there are no undisclosed
liens, judgments or impediments of title on OWNERS' Property that would affect this Lease.
B. This Lease, including attached exhibits which are hereby incorporated by reference, incorporates all
agreements and understandings between GRAPEVINE and TENANT, and no verbal agreements or
WE
understandings shall be binding upon either GRAPEVINE or TENANT, and any addition, variation or
modification to this Lease shall be ineffective unless made in writing and signed by the parties.
C. GRAPEVINE agrees that OWNERS' Property (including, without limitation, the Tower), and all
improvements, comply and during the term of this Lease shall continue to comply with all building, life/safety,
disability and other laws, codes and regulations of any applicable governmental or quasi -governmental authority.
All such compliance shall be accomplished at GRAPEVINE's sole cost and expense.
D. This Lease and the performance hereof shall be governed, interpreted, construed and regulated by the
laws of the State of Texas.
E. This Lease, and each and every covenant and condition herein, is intended to benefit the Leased Site and
shall extend to and bind the heirs, personal representatives, successors and assigns of the parties.
F. The parties agree that all of the provisions hereof shall be construed as both covenants and conditions, the
same as if the words importing such covenants and conditions had been used in each separate paragraph.
G. The parties acknowledge that each has had an opportunity to review and negotiate this Lease and have
executed this Lease only after such review and negotiation. The language of each part of this Lease shall be
construed simply and according to its fair meaning, and this Lease shall not be construed more strictly in favor or
against either party.
H. At GRAPEVINE's option, this Lease shall be subordinate to any mortgage by GRAPEVINE which from
time to time may encumber all or any part of the Leased Site, provided that every such mortgagee shall recognize
(in writing and in a form acceptable to TENANT) the validity of this Lease in the event of a foreclosure of
GRAPEVINE's interest and also TENANT's right to remain in occupancy and have access to the Leased Site as
long as TENANT is not in default of this Lease. TENANT shall execute whatever instruments may reasonably be
required to evidence this subordination. If, as of the date of execution of this Lease, there is any deed of trust,
ground lease or other similar encumbrance affecting GRAPEVINE's Property, GRAPEVINE agrees to use its
best efforts in cooperating with TENANT to obtain from the holder of such encumbrance an agreement that
TENANT shall not be disturbed in its possession, use and enjoyment of the Leased Site.
I. If GRAPEVINE breaches this Lease in any manner or substantially breaches any material term contained
in any mortgage or deed of trust superior to TENANT's estate under this Lease (other than any mortgage or deed
of trust for which TENANT has obtained a non -disturbance agreement in accordance with Paragraph 21.H.) or
contained in any lease under which GRAPEVINE holds title to any portion of OWNERS' Property, and if
GRAPEVINE fails to commence to cure such breach within thirty (30) days after receiving a written notice from
TENANT exactly specifying the violation (or if GRAPEVINE fails thereafter to diligently prosecute the cure to
completion), then TENANT may enforce each of its rights and remedies under this Lease or provided by law or it
may (although it shall not be obligated to do so) cure GRAPEVINE's breach or perform GRAPEVINE's
obligations (on GRAPEVINE's behalf and at GRAPEVINE's respective expense) and require the GRAPEVINE
to reimburse (or offset against rent) all reasonable expenses incurred in doing so plus interest (from the date such
expenses are incurred until reimbursement) at ten percent (10%) per annum.
J. In the event that (i) the Leased Site is encumbered by or subject to any debts and liens, and (ii)
GRAPEVINE defaults in the payment and/or performance of said debts and liens, TENANT may, at its option
and without obligation, cure or correct GRAPEVINE's defaults, and upon doing so, TENANT shall be subrogated
to any and all rights, superior titles, liens, and equities owned or claimed by the holders of such debts and liens,
and TENANT shall be entitled to deduct and set-off against all rents that next may be or may become due under
this Lease until all sums so paid by TENANT to cure or correct GRAPEVINE's defaults have been deducted and
set-off in full against such rents.
M
K. If any portion of this Lease is declared by a court of competent jurisdiction to be invalid or unenforceable,
then such portion shall be deemed modified to the extent necessary in such court's opinion to render such portion
enforceable and, as so modified, such portion and the balance of this Lease shall continue in full force and effect.
L. If a dispute arises between the parties relating to this Lease, the parties agree to meet to try to resolve the
dispute. Such meeting shall be attended by individuals with decision-making authority to attempt, in good faith,
to negotiate a resolution of the dispute prior to pursuing other available remedies. If, within thirty (30) days after
such meeting, the parties have not succeeded in negotiating a resolution of the dispute, either party may request
that such dispute be resolved through non-binding mediation. The mediator shall be an individual or firm with
expertise in wireless telecommunications, as well as in the subject matter of the dispute. If either party institutes
any action or proceeding in court to enforce any provision hereof, or any action for damages for any alleged
breach of any provision hereof, then the prevailing party in such action or proceeding shall be entitled to receive
from the non -prevailing party such amount as the court may adjudge to be reasonable attorneys' fees for the
services rendered to the prevailing party, together with its other reasonable litigation expenses.
M. In addition to the other remedies provided for in this Lease, GRAPEVINE and TENANT shall be entitled
to immediate restraint by injunction of any violation of any of the covenants, conditions or provisions of this
Lease.
N. The captions of the paragraphs of this Lease are for convenience of reference only and shall not affect the
interpretation of this Lease.
O. Concurrently with the execution of this Lease, GRAPEVINE shall execute before a notary and deliver to
TENANT for recording a "Memorandum of Lease Agreement" in the form of the attached hereto as Exhibit "D".
Such Memorandum shall not disclose any financial terms, unless required to do so by the laws of such
jurisdiction.
IN WITNESS WHEREOF, GRAPEVINE and TENANT have duly executed this Lease as of the date first above
written.
TENANT:
FiberTower Corporation
185 Berry Street, Suite 4800
San Francisco, CA 94107
415 659 3500
UA
Edgar S. DeLong, Jr., Vice President and General Manager, South Region
TENANT NOTARY:
STATE OF
COUNTY OF
EN
OWNER: The CITY OF GRAPEVINE, Texas, a home -rule municipal corporation.
By:
Bruno Rumbelow, Acting City Manager
City of Grapevine
Attest:
Linda Huff, City Secretary
Approved as to form:
John F. Boyle, Jr., City Attorney
12
M
MEMORANDUM OF LEASE AGREEMENT
THIS MEMORANDUM OF LEASE AGREEMENT, made and entered into as of this 15th day of November,
2005, by and between The City of GRAPEVINE, Texas ("GRAPEVINE"), a municipal corporation, and
FiberTower Corporation being a corporation organized and existing under the laws of the State of Delaware, and
authorized to do business in Texas ("TENANT").
1. GRAPEVINE , on the terms and conditions set forth in an unrecorded document dated November 15th, 2005,
and entitled "Ground and Tower Lease Agreement," which terms and conditions are incorporated herein by
reference, and in consideration of the rent and covenants therein provided, does hereby lease to TENANT, and
TENANT hereby rents and accepts from GRAPEVINE , certain property ("Leased Site") which is described in
Exhibit `B" attached hereto and incorporated herein by this reference and which is located at 1900 Minters
Chapel , in the City of GRAPEVINE, in the County of Tarrant, in the State of Texas, within the property of
GRAPEVINE which is described in Exhibit "A" attached hereto and incorporated herein by this reference
("OWNERS' Property"), for an initial term commencing on November 15th, 2005, and expiring on the fifth
anniversary of the commencement of the initial term, which term may be extended by TENANT for up to four (4)
additional five (5) year period(s) subject to the conditions of Paragraph 3.B. of the Ground and Tower Lease
Agreement.
2. Pursuant to the Ground and Tower Lease Agreement, among other things, GRAPEVINE shall not cause or
permit any use of the OWNERS' Property which interferes with or impairs the quality of the communications
services being rendered by TENANT from the Leased Site.
IN WITNESS WHEREOF, GRAPEVINE and TENANT have duly executed this Memorandum of Lease
Agreement as of the date first above written.
TENANT:
FiberTower Corporation
185 Berry Street, Suite 4800
San Francisco, CA 94107
415 659 3500
By:
Edgar S. DeLong, Jr., Vice President and General Manager, South Region
OWNER: The CITY OF GRAPEVINE, Texas, a municipal corporation
The City of GRAPEVINE, Texas
L-13
Bruno Rumbelow, Acting City Manager
City of Grapevine
Attest:
Linda Huff, City Secretary
13
Approved as to form:
John F. Boyle, Jr., City Attorney
14
MEMORANDUM OF LEASE AGREEMENT
Notary Attachment
CITY OF GRAPEVINE NOTARY BLOCK:
STATE OF TEXAS
COUNTY OF TARRANT
The foregoing instrument was acknowledged before me this day of 2003, by
of the City of Grapevine , the Lessor.
(AFFIX NOTARIAL SEAL)
Official Notary Signature
Notary Public State of _
(Printed, Typed or Stamped name of Notary)
Commission Number
FIBERTOWER CORPORATION NOTARY BLOCK:
STATE OF TEXAS
t• JHS)a141R7,11ZIl
15
i EXHIBIT "A"
State of Texas
County of Tarrant
IN,HF:--REAS, T he, City of Grapevine is the owner of a 0.3A3 acre
tract of land in the William Bradford Survey, Abstract No. 151
and d J.F. Byrd Survey, Abstract No. 120, situated in the City of
Grapevine, Tarrant County, Texas, and being a part of an
unused portion of r1inters Chapel Road, and being more
particularly described 05 f0',I0LLJ5--
BEGINNING at a 1/2 -inch iron rod set at the southeast corner
of Lot 1, Block I of the, James Keller Addition according to the
plot thereof recorded in Cabinet A, Page 2550, Tarrant County
Plot Records and on the north line of North Airfield Drive,
from which concrete monument No, 41-A of the Dallas -Ft,
North International Airport bears North M* 33' 40" V41
distance of 1251,35 feet for a reference;
THENCE North 00' 15' IV' West, along the east line of sold Lot
1, a distance of 377.b8 feet to 0 1/2 -inch iron rod set at the
beginning of a non -tangent curve to the left for corner;
THENCE along said curve to the left having a radius of 5G0 ' 55
Feet on arc distance of 145.35 feet to a 1/2 -inch iron rod set
for corner, said curve having a chord bearing of South 19* 5W
.45" East, and a chord distance of I47.84 feet;
THENCE South 00* 15' 18" East, a distance of 241.00 feet to a
1/2 -inch Iran rod set on said north line of North Airfield Drive
for corner,
THENCE North 57- 171 30" Nest, along said north line of North
Airfield Drive, a distance of 50.00 feet to the POINT OF
BEGINNING, and containing 0.343 acres or 14941.05 sqvore feet
of land,
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