HomeMy WebLinkAboutItem 10 - VoicestreamITEM # / o
~� MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROGER NELSON, CITY MANAGER
MEETING DATE: AUGUST 19, 2003
SUBJECT: JOINT TOWER AND GROUND LEASE AGREEMENT WITH
VOICESTREAM
RECOMMENDATION:
City Council approve a resolution authorizing the City Manager to enter into joint lease
agreement with the Grapevine-Colleyville Independent School District (GCISD) and
VoiceStream, a mobile service provider.
FUNDING SOURCE:
The City of Grapevine and the GCISD will share an annual rent payment of $27,000
from VoiceStream.
BACKGROUND:
The City of Grapevine staff and the GCISD staff worked with VoiceStream
representative Wayne Rastomo to develop the lease agreement.
The lease agreement reflects standard requirements for all mobile service providers
collocating to city facilities. VoiceStream will be the third provider located on the
Mustang Water Tower. These antennae are expected to add better service coverage to
their customers traveling through this area of Grapevine.
The terms of the lease are outlined for your review and include a 25 -year term, divided
into 5 -year intervals, with adjustments of 15% or the CPI (whichever is greater) applied
per interval.
The City staff and City Attorney have reviewed the lease and recommend approval of
the resolution for authorization.
Myl
August 13, 2003 (8:45AM)
GENERAL LEASE AGREEMENT TERMS
Landlords:
City of Grapevine and Grapevine-Colleyville Independent School District
Tenant:
Voice Stream, Inc.
Terms:
25 Year Overall Lease
5 Year Period
Fee Adjustment of 15% or CPI at the end of each 5 year period
August 6, 2003 (2:11 PM)
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS TO ENTER INTO A JOINT TOWER
AND GROUND LEASE AGREEMENT WITH GRAPEVINE-
COLLEYVILLE INDEPENDENT SCHOOL DISTRICT AND
VOICESTREAM, LLC. FOR THE COLLOCATION OF
ANTENNAE AND THE INSTALLATION OF
COMMUNICATIONS EQUIPMENT AS NOTED IN EXHIBIT
"A" AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the City of Grapevine and the Grapevine-Colleyville Independent
School District (G.C.I.S.D.) [hereinafter referred to as "Landlord"] and VoiceStream
limited liability partnership based in Washington, [hereinafter referred to as "Tenant"]
desire to enter into a Joint Tower/Ground Lease Agreement; and
WHEREAS, the City of Grapevine administratively approved a site plan on
August 1, 2003, 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 July 28, 2003; and
WHEREAS, the Tower/Ground Lease is attached hereto as Exhibit "A".
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF GRAPEVINE, TEXAS:
Section 1. That the City Manager is hereby authorized to enter into said
Tower/Ground Lease Agreement as attached as Exhibit "A".
Section 2. 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 19th day of August, 2003.
ATTEST:
0 ATTEST:
gum-il,
RES. N4.
GROUND AND TOWER LEASE AGREEMENT
09 THIS GROUND AND TOWER LEASE AGREEMENT ("Lease"), is entered into as of this day of
, 2003, 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 Voicestream
GSM Operating Company, LLC and being a Limited Liability Company organized and existing under
the laws of the Delaware, and authorized to do business in Texas, with its principal place of business at
11830 Webb Chapel, Suite 5000, Dallas, Texas 75234 ("TENANT").
In consideration of the premises and of the mutual obligations and agreements in this Lease, the
parties agree as follows:
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 "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 700 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". 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. 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 and GCISD 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 AND GCISD, 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 AND GCISD twenty seven thousand dollars
(327,000) divided equally as full rental per annum for the initial Term (the "Rent"). The first Annuli
payment of Rent (the "Initial Payment") shall be payable on the Commencement Date. Subsequer:.
annual payments shall be payable on or before the anniversary date of the Lease of each year. AI.
payments due under this Agreement shall be sent to GRAPEVINE's address indicated under Sectior
12 below, to the attention d UJGC|GD at the address indicated under Section
12below, tothe attention of Chief Operations Officer.�
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B. Thereafter, Uni8G5 any party advises the other parties in xvhUOg pot less than ninety (80) days
prior to the expiration of the |n|U8} Term or any extension period that it dO8g not desire additional
extensions, this Lease Sh3\\ 8ub}rD@ticai\y renew and extend for uptofour (4) additional five (5) year
extension periods, each beginning upon the expiration 8fthe term then iOeffect.
C. The /\DOua| Rent for each extension period (after the Initial Term) shall be the AOnU3| Rent in
effect for the final year of the prior extension pe[iOd, increased by either fifteen percent (15%) or the
percentage increase inthe Consumer Price Index (CP|) 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 cODUDU8 in effect on the same terms and CODdiUoDS [other than Annual Rent
which shall be8namount equal to the one twelfth (1/12)Ofthe Annual Rent iOeffect for the preceding
year, increased by fifty percent (50%)] for a further period of one (1) month, and for like monthly periods
th8[eafter. until and Un|eSS terminated by either party by giving to the other written OOUc8 Of its intention
to so terminate at least thirty (30) days befbre the expiration of the term then in effect.
E. TENANT hereby agrees to supply GRAPEVINE AND GCISD a security deposit in the amount of
Three ThOUS8Od DO||3rS ($3.000.00), for the SO\e purpose of assuring TENANT'S payment of all SVrOS
that may beCOrn8 due to GRAPEVINE AND GC|SO under this Lease (including without |irOitgtiOO' any
and all R8OU.aSvve||8s the p8�OrnlanC8Ofall obligations under this Lease. Inthe event that TENANT
fails either t'pay GRAPEVINE AND GC|SDany sum ofmoney due under this Lease O[tOperform any
obligation required Of TENANT under this L88Se, GRAPEVINE AND GC|SO shall provide TENANT �
written nOUC8 of such fai|ur8, together with sUffiCi8Ot dOcUrn8Ot8bOO of the amount that is due or the
obligation that needs to be pgrfO[rD8d (the "Late Notice"), If TENANT has not paid the sVDl within ten
(1O> d8yS. or performed the obligation within thirty (30) days' after the date of the Late Notice,
GRAPEVINE
PEV|NEAN[) GCISD may access the security deposit. GC\S[} and GRAPEVINE shall each hold
one-half of the security deposit without obligation or liability for payment of interest, and neither shall be
required to keep the security deposit separate from their general funds. Any appropriation by GCISD or
GRAPEVINE of the S8CU[it\ deposit in BCcO[d@Oc8 with this Section 3h8|| be without prejudice to any
other remedy which (�(�|S[}'Or GRAPEVINE may have at |3vV, in equity. Or under this Lease. Within five
/5) days after any appropriation of the security deposit 'TENAKJT Sh8|| deposit C83h with(�C|S[} and
` 'APEV|NE. as the case may be, in an amount sufficient tO restore the security deposit 1Othe SurD
required under this Section, Should TENANT faithfully perform all Of its obligations under this Le8e8.
the security deposit, Or any balance thereof remaining shall be returned to TENANT within thirty (30)
days after the expiration or earlier termination of this Lease, or as otherwise prescribed by law.
4. USE OF THE LEASED SITE
A. TENANT may use the Leased Site to COOSt[UCt' operate, [8nlOvB. replace, service, maintain,
S8CUrg and operate a communications facility, iOC|uding. without limitation, required TENANTantenna
array (o3 shown on Exhibit ^C}'') and antenna support structures, and for any Other USeS incidental,th8reto. ` TENANT shall construct a Qated, wooden fence with 8S5Od8t8d landscaping around the
Leased Site. subject to GRAPEVINE AND GC|S[J's approval, said approval not to be Unr8asOnab..,
withheld, Each 'uch antenna array orantenna support structure may be configured as reqUested �
TENANT from time to time, provided TENANT Obt8�JnS, pursuant to sub-paragr2ph R. all permits @n-1
apprOva/S requirad by applicable jurisdictions for such requested noOfigur3tiO�, (�RAPEV|NE AN�
GCiS[} shall have the right to approve plans forany improvements, including any fence OranteOnEie� �
array, installed by TENANT On the Leased Site, such approval not to be unreasonably vvithhe�:: ` ~
provided that GRAPEVINE AND GO|SO must notify TENANT of its approval or disapproval of any sucr
p|8ns within thirty /30\ days @fter the submission of such plans by TENANT to GRAPEVINE ANE
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GCISD, and in the event that GRAPEVINE AND GCISD fails to so notify TENANT, that party shall be
deemed to have approved such plans. GRAPEVINE AND GCISD shall be notified in writing about any
scheduled construction times and major repair times unless an emergency exists.
(1) TENANT covenants and agrees that Tenant's equipment, its installation, operation, and
maintenance will not interfere with the operation of existing radio or electronic equipment at the Leased
Site, nor the operation of the elevated water storage facility located on OWNERS' Property described
in Exhibit "A" herein.
(2) TENANT shall coordinate with GRAPEVINE AND GCISD 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 GCSID,
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 GCISD 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.
(B) If any interference occurs to
�transmissions, whether existing or subsequent as
compliance with applicable laws, and is caused
operations until the interference is cured.
GRAPEVINE's, GCISD's, or any public safety
long as GRAPEVINE and GCISD are operating in
by TENANT, TENANT will immediately cease all
(7) From time to time GRAPEVINE AND 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, GCISD and GRAPEVINE 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 fc'
the foregoing uses and improvements to the Leased Site desired by TENANT. GRAPEVINE anc
GCSID shall cooperate with TENANT in TENANT's efforts to obtain such Governmental Approvals anc
shall take no action that would adversely affect TENANT's obtaining or maintaining such Governmenta'
Approvals. Should GRAPEVINE AND GCISD be notified or cited by any State or Federal regulator:
agency that OWNERS' Property is not in compliance with said agencies regulations due to TENANT's
installation of improvements under this Lease, GRAPEVINE AND GCISD will immediately notifl
TENANT Of said non-compliance and if TENANT does not cure the conditions Of nVO-COnnp|i8OC8 within
the time frame allowed by the citing agency, GRAPEVINE AND GCISD may terminate this Lease.
5. TERMINATION .
4` In the event any application for certificate, permits, licenses D[other approvals will be too ooaUv,
time consuming or there is a p8aoOn@b|8 likelihood that said application will be rejected in the opinion
of TENANT Or any certificate, permit, license, or approval issued to TENANT is CaOc9igd, expires or
lapses or is otherwise withdrawn or terminated by governmental authority Or GOi\ boring tests and/or
8DVi[OnrDeOia| 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 AND GC|S[} of TENANT'S intent
tOexercise its right tOt8rrrfinate this Lease shall bebycertified mail, return receipt requested, and shall
be effective upon receipt of such notice by GRAPEVINE AND GC\SD as evidenced by the return
receipt. Any Annual Rent paid to such termination date shall be retained by GRAPEVINE AND GC|8D.
B. In addition, and provided that TENANT is not then iDdefault under this Lease. TENANT may,
during the Initial Term or any extension period, upon one (1) year's written notice to GRAPEVINE AND
GC}S[). terminate and C8DC8| this Lease, ifTENANT determines that the Leased Site has become
unsuitable for TENANT'S operations, upon payment in cash to GRAPEVINE AND GQSD Of 8
termination fee equal tOsix (0\nloOthS'rent atthe rate then iOeffect. This Lease rO8ybBterminated by
any pa�vupon ho�v-five (4�)�days' prior Yv�ttennotice b]the other p8�material
covenant- Or term hereof by the other party which is not cured within forty-five /45\ days Of receipt Of
written ODUc8 of default; or, if such default is not curable within forty-five (45) dayS, if the defaulting
party fails to oOrnnnenCe such cure within forty-five (45) days or fails thereafter diligently to prosecute
such
' cure to COnlp|eUOn; provided that the grace period for any monetary default shall be ten /10\ days
from receipt Ofnotice.
G. ASSIGNMENT AND SUBLETTING
A. Exceptto a "Partner"PartnerCO0pBmy. "Affiliate""Affiliate"O["SubsidiGry" ofTENANT �r 8O "Affiliate""Affiliate"Or
"Subsidiary" of g "Partner Company" of TENANT [BS defined be}ow). TENANT shall not assign this
LB33e. Or allow it to be assigned, in VVhO|8 OF in pBd, by operation oflaw Or Othen:is8. Or mortgage or
pledge the same, or sublet the Leased Site, or any part thereof, without the prior written consent of
GRAPEVINE AND GC|SO. (but with notice to both Grapevine and GC!S[}).. GRAPEVINE AND
GC|8O'S consent to an assignment or sublease shall be deemed given if GRAPEVINE AND G[}\SD do
not respond tOTENANT's request within thirty (30) days after GRAPEVINE AND GC|3D'S receipt of
such request. It is specifically agreed and VDde[stOOd, h0vv8V8[, 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
CornrnOO carrier for collocating purposes.
B. Each Of the partners of TENANT is 8 Partner Co0pany, An Affiliate Of an entity is any entity
fifh'+OO8 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
(8096) or more of the ownership of which is OvvOed by such entity.
CNo consent by GRAPEVINE AND GC|S[] to any assignment or sublease by TENANT Sh�7
reUev� TENAN� of any obligation to be performed by TENANT under this LeaSe, whether arisin�
b efora Or after assignment or sublease. The oonsen� by GRAPEVINE AND GC|S[} to 2.n.
assignrnen' O, suj|eeSe 5hBU no' relieve TENANT from the obligation to obtain GRAPEVINE AN'-
{5C|SD's express written oDnsen' to any other assignment or sublease, Any aSSionee or 3ub|esse-
rnu3t a2ree in \vri�ing to be bound by the t8rrDS of this Lease, �� _�
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 be an assignment for purposes of this
Paragraph 6.
7. EQUIPMENT AVAILABILITY
GRAPEVINE AND GCISD need 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. TENANT shall perform removal of TENANT'S equipment on ninety- (90) day's 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 and GCISD
prior to entering the Tower or climbing or scaling the Tower. TENANT will not be provided unattended
access to the leased site. GRAPEVINE and GCISD will provide TENANT with a contact person to
ensure that TENANT has twenty-four hours, seven days a week, access to the Leased Site.
During any period of GRAPEVINE's and GCISD's maintenance that requires the removal of
TENANT'S equipment or facilities, 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 AND GCISD 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
W, 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.
8. INDEMNIFICATION AND INSURANCE
A. TENANT hereby agrees to indemnify, defend, and hold GRAPEVINE AND GCISD, 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 AND GCISD, 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. TENANT shall provide GRAPEVINE AND GCISD with a certificate of insurance issued by a -
insurance company licensed to do business in Texas indicating that TENANT carries commerci�
general liability insurance with limits of liability thereunder of not less than $5 million combined single
limit for personal injury, bodily injury, or property damage together with an endorsement for contractus
liability. Such shall name GRAPEVINE AND GCISD as an additional insured with respect to the
Leased Site. TENANT will provide GRAPEVINE AND GCISD with a renewal certificate within ten (10
business days of GRAPEVINE AND 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 poliC,.'
5
complies with all of the other requirements of this Lease with respect to the type and amount of
insurance required.
C. TENANT shall carry comprehensive auto insurance covering Tenant and the additional insured
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 GRAPEVINE or the servicing utility. TENANT will
install an electric meter for its utility services and TENANT shall pay all costs related to said electric
service.
10. RIGHTS TO EQUIPMENT; CONDITION ON SURRENDER
Subject to the statutory lien of GCISD and GRAPEVINE for TENANT's failure to pay rent,
TENANT's antennas and equipment shall remain personal to and the property of TENANT. Provided
TENANT is not in default at the time, 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 AND GCISD.
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 ter:
(10) days after written notice thereof is received by TENANT from GRAPEVINE AND GCISD.
(2)The failure by TENANT to observe or perform any of the covenants or provisions of thicS
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 b,,
TENANT from GRAPEVINE AND GCISD; provided, however, that it shall not be deemed an Event c`
Default by TENANT if TENANT shall commence to cure such failure within said thirty (30) day perioc
and thereafter diligently prosecutes such cure to completion.
B. If there occurs an Event of Default by TENANT, in addition to any other remedies available
GRAPEVINE AND GCISD at law or in equity, GRAPEVINE AND GCISD shall have option to terming::_
this Lease and all rights of TENANT hereunder.
C. If there occurs an Event of Default by TENANT, GRAPEVINE AND GCISD shall not have ti^
right, prior to the termination of this Lease, to re-enter the Leased Site and/or remove persons
property from the Leased Site or the Tower.
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D. In an Event of Default, which is not cured under Paragraph 11 herein, TENANT shall have an
additional thirty (30) days from the effective date of termination to remove all of TENANT's equipment
from the Leased Site.
12. NOTICES
All notices hereunder must be in writing and, unless otherwise provided herein, shall be deemed validly
given if sent by certified mail, return receipt requested, addressed as follows (or to any other mailing
address which the party to be notified may designate to the other party by such notice) or as otherwise
provided under applicable state law. Notice by any other method (whether by hand -delivery, overnight
delivery service, or otherwise) shall only be deemed effective upon receipt by the intended recipient.
Should GRAPEVINE AND 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 AND
GCISD otherwise specifies in writing, rent checks from TENANT shall be sent to the person listed
below to whom notices are sent.
TENANT:
OWNERS:
The City of GRAPEVINE, Texas, a municipal corporation
Attn: Office of the City Manager
Address: P.O. Box 95104
GRAPEVINE, Texas 76099
Telephone Number: (817) 410-3105
Facsimile Number: (817) 410-3002
GRAPEVINE COLLEYVILLE INDEPENDENT SCHOOL DISTRICT
Attn: Chief Operations Officer
Address: 3051 Ira E. Woods Ave.
Grapevine, Texas 76051-3897
Telephone Number: (817) 481-5575
Facsimile Number: (817) 481-4162
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
Jim Whitton
Brackett & Ellis
100 Main Street
Fort Worth, Texas 76102
(817)338-1700
(817)870-2265
Should GRAPEVINE or GCISD, at any time during the term of this Lease, sell, lease, transfer c,
otherwise convey all or any part of OWNERS' Property to any transferee other than TENANT, the, -
such transfer shall be under and subject to this Lease and all of TENANT's rights hereunder.
14. HAZARDOUS SUBSTANCES
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A. GRAPEVINE AND GCISD warrant and agree that to their knowledge, neither GRAPEVINE AND
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 AND GCISD and
TENANT each agree that they will not use, generate, store or dispose of any Hazardous Material (as
defined in Paragraph 14.13.) 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. TENANT agrees to defend and indemnify, to the extent allowed by law, GRAPEVINE and
GCISD'S elected officials, officers, 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 by TENANT 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 AND 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 such authority, but not
from GRAPEVINE AND GCISD, 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 AND GCISD if billed to GRAPEVINE AND GCISD, upon thirty (30) days
prior written notice from GRAPEVINE AND GCISD, 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 AND GCISD'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 AND GCISD
shall provide TENANT with documentation from the taxing authority representing the amount owed.
17. QUIET ENJOYMENT AND NON-INTERFERENCE
GRAPEVINE AND GCISD warrants and agrees that TEN,4-\NT, upon paying the rent and performing th;-a
covenants herein provided, shall peaceably and quietly have and enjoy the Leased Site
1S. 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 AND
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 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 7:OOa.m. to 10:OOa.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 GCISD and TENANT represent to each other that they have not negotiated with any
real estate broker in connection with this Lease. GRAPEVINE AND 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, to the
extent permitted by law, 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 AND GCISD, shall provide GRAPEVINE AND GCISD
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 AND 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 whether GRAPEVINE AND GCISD has any claim against TENANT and if so, stating the nature
of such claim.
21. MISCELLANEOUS PROVISIONS
A. GRAPEVINE AND GCISD warrant and agree that GRAPEVINE AND GCISD are seized of good
and sufficient title to and interest in the Leased Site and have 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 GCISD and TENANT
and no verbal agreements or understandings shall be binding upon either GRAPEVINE AND GCISD c-
TENANT, and any addition. variation or modification to this Lease shall be ineffective unless made i-
writing and signed by the parties.
S,
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. 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 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 AND GCISD'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 AND GCISD's Property,
GRAPEVINE AND GCISD 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.
1. If GRAPEVINE AND GCISD breach this Lease in any manner or substantially breach 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
AND GCISD holds title to any portion of OWNERS' Property, and if GRAPEVINE AND GCISD fail to
commence to cure such breach within thirty (30) days after receiving a written notice from TENANT
exactly specifying the violation (or if GRAPEVINE AND 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 AND GCISD's
breach or perform GRAPEVINE AND GCISD's obligations (on GRAPEVINE AND GCISD's behalf and
at GRAPEVINE AND GCISD's respective expense) and require the GRAPEVINE AND GCISD 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.
i. In the event that (i) the Leased Site is encumbered by or subject to any debts and liens, and
GRAPEVINE AND GCISD default in the payment and/or performance of said debts and liens
TENANT may, at its option and without obligation, cure or correct GRAPEVINE AND 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 anc
set-off against all rents that next may be or may become due under this Lease until all sums so paid lb'!'
10
TENANT to cure or correct GRAPEVINE AND 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, 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 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 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 GCISD and TENANT have duly executed this Lease as
of the date first above written. ,
r
TENANT NOTARY:f,
STATE OF TEXAS
), L. L c:._..
COUNTY OF TARRANT
d-'
q1,AKimberly l D+xsor
:4 My commisvon Ex�>Wes
May 14, 2005
11
OWNER: The CITY OF GRAPEVINE, Texas, a home -rule municipal corporation.
By:
Name:
Its:
Attest:
City Secretary
Approved as to form:
City Attorney
EYVILLE INDEPENDENT SCHOOL DISTRICT (GCISD)
By:
Name: tzJe Al �41V�6
Its:
Attest:
19MBERLEY E STEVENSON
MY COMMISSION EXPIRES
July 16, 2007
WIN
4_3
MEMORANDUM OF LEASE AGREEMENT
THIS MEMORANDUM OF LEASE AGREEMENT, made and entered into as of this ^ day of
, 2003, by and between The City of GRAPEVINE, Texas ("GRAPEVINE"), a municipal
corporation and GRAPEVINE COI-LEYVILLE INDEPENDENT SCHOOL DISTRICT ("GCISD"), and
vb,�SG-eo(n corporation organized and existing under the laws of the State
;-f.6da LZ*74 and-!5'uthorized to do business in Texas ("TENANT").
1. GRAPEVINE, GCISD, AND TENANT, on the terms and conditions set forth in an unrecorded
document dated I , 2003, 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 , 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 here*to and incorporated herein by this reference ("OWNERS'
Property"), for an initial term commencing on , 2003, 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 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 AND,;.-,GCISD and TENANT have duly executed this
Memorandum of Lease Agreement of. the e first above written.
TENANT: OlctS)k Dee,)O m i c—
By:
Name:
OWNER: The Grapevine-Colleyville Independent
School Distftt
By:
Name: -7
— ae
OWNER: The CITY OF GRAPEVINE, Texas, a municipal corporation
The City of GRAPEVINE, Texas
M
13
Name:
Its:
Attest:
City Secretary
Approved as to form:
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
WIRELESS NOTARY BLOCK:
STATE OF TEXAS
COUNTY OF TARRANT
H:\Boyle-Lowry\Grapevine\gv-agreements\gv-@gr ground & tower lease-redline.doc
15
EXHIBIT A
Legal Description
The Property is legally described as follows:
Lot I A, Block i, Education Center Addition No. 3, City of Grurvine, Tarrant County, Texas
Site Numb<v D.A1226" Verson 10-2=
1.
Site Name. Grapy im
Market Dallas
EXHIBIT C
The Antenna location on the Water Tower
is more particularly described and depicted as follows:
NEW T -MOBILE
PANEL. ANTENNAS r9)
NEW T -MOBILE ANSI -E ADAPTORS MT5
PART- AA -U ALSO SNAP -IN HANGER
HTS PARTOSH-056 MOUNTED TO
EXISTING TANK BEAM rTMP OF ALU -"
NEH T -MOBILE
GOAXGABLE
EX15TING
WATT:R TANK
NEw T -MOBLE 6'x10'
ECVPMENT PLATFORM
NEW GPS ANTENNA � \
NEw T-N.OEILE.
HARLOW PQG
GA AI NET
\l
NE, E' .1G•-
Site NumbeT D.32267
Site Name Gr*pmine
hiatiet. DaRas
GRAPEVINE
MUSTANGS
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EXHIBIT B
The location of the Premises within the Property (together with access and utilities)
is more particularly described and depicted as follows:
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ANTENNA MGUN7"ER
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BETA 120'F1
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.E ALPHA O' \—EXISTIN6 WATER TOWER w w
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Version 10-<-01
Site Number
D.42267
Site Name
Markcr
Grapevine
Dallas