WA9601-CS 971117 uJ~c~bOI
P.O. BOX 478
COPPELL, TX 75019
FAX NO. (972) 504-3570
ENCINEER[NC DEPARTMENT
FAX COVER SHEET
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05/05/00 14:18 FAX
March 10, 1997
Mr. William J. Callejo
4314 North C~ntral Expressway
Dallas, Tesas 75206
CiW of Coppell
Attn: Mr. Jim Witt, City Manager
P.O. Box 478
Coppell, Texas 75019
Re: Letter Agreement
Dear Sirs:
As you know, I have been retained by Nextel of Texas, Inc., to see fithey (Nextel), the
City of Coppell and Bill Callejo can reach a mutually acceptable connet for their
(Nextel's) si~oniflcantly long term communication facility. This facility is to be placed on
the west side of Coppell in the commercially zoned area near State Road and Sandy Lake
ak.a Yhweat Rd.
I am enclosing a copy of a pro forma agreemere that is styled "Communications Site Lease
Agreement (Ground)." Basically this agreement will establish the bonus ($500.00),
monthly rental ($1300.00), a primary term of 5 years, and the subsequent renewable 5
years options not agerearing beyond 20 total years. This lease shall also contain an
escalation provision of 3% per annum based on the commencement date of the contract.
I am enclosing a rough sketch of how the antenna would be mounted to the water tank
and a rough sketch of where the ground faculty (1 0' X 10' X 20' building) would be
located in some congruent fashion with the preliminary site plans created for the water
tower,
As far as the Callejo site is concerned; no formal street proposals or expected
development (short of natural 8as) is ~ed in the immediate future. A site plan here
would look no different than the experience the City has with the AT&T site near the
Four Sea.sons building on Freeport North_
This agreement should you find h acceptable would hinge upon Nextel of Texas, Inc.
being granted a temporary use or special use permit noting the compau'ble contractual
obligations and time Lines for each or the parties herein. This agreement in effect will
overlap each other so that Nextel's capital investments projections meet with expectations
of economic viability of the project, A shorter tein~ for either site would be untenable and
without profit,
,h,
05/05/00 14: 18 FAX [~ 0~
I am proposing a coreract be executed on even date by Callejo, City, and Nex~el so that
the following time line might be the expectation and the fruition of this win, win,
opportunity:
1. Temporary/Special Use permit granted and sOproved by Council (Late March,
April, and not later than early May, 1997)
2. Construction begins on Callejo - May/June, 1997.
3. Callejo site operational July· 1997.
4. Callejo remains operational until June, 2001.
5. City of Coppelt site construction begins April· 2001.
6. City of Coppell becomes operational July, 2001.
7. Callejo site dismantled July· 2001.
Please note the enclosed economic value projections prepared for your benefit. At its
mirataurus, the contracts will deliver $80,000.00 plus and if all the options are exercised
the value escalates to ~he hundreds of thousands. Of course, the City would potentially
have the ad valorem escahtion's while on private lands, but I can't foresee this revenue
stream being anything but insignificant when compared to the contracts proposed herein.
ffyou find these citations and terms acceptable please so indicate by signing and returning
one original to me at: Nextel of Texas, Inc., c/o Robert Key, agent~ 204 Steamboat,
Coppell, Texas 75019
Agreed and accepted this day of ,1997.
Jim Witt, City Manager Wilfiam I. Ca!lejo, Owner
City of Coppell
· Inc.
by Robert Key, agem
05/0~/00 14:18 FAX ~ [~]04
· : ][
March 10, 1997
15,600.00 Year 1
16,068.00
17,106.24
17,619.42
~8,148.00 Year 5 (End of primary Term) $84,541.66
Option 1 (5 year)
18,962.44 Year 1 - Year 6
19,531.31
20,177.25
20,780.76
21,404.18 Year 5 - Year 10 $100,855.94
Option 2 (5 year )
22,046.30 Year 1 - Year 11
22,707.68
23,388.91
24,090.57
24,813.20 Year 5 - Year 15 $117,046.66
Option 3 (5 year)
25,557.59 Year 1 - Year 16
26,324.31
27,114.03
27,927.45
28,765.27 Year 5 - Year 20 $135,688.65
End of Coreract: Total: $439,13~. 91
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SIZ~ J REMARKS j OLI4NTITY
NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P.
Attorneys &Counselors at Law 7fl kA/ov~" TO~
LAWRENCE W. JACKSON 1800 Lincoln Plaza JOHN F. ROEHM III
ROBERT L. DILLARD III 500 North Akard JENNIFER R, DIETZE
ROBERT E. HAGER Dallas, Texas 75201 JASON C, MARSHALL
PETER G, SMITH
DAVID M, BERMAN (214) 965-9900
BRUCE A. STOCKARD Fax (214) 965-0010 ROBERT L. DILLABD, JR
H. LOUIS NICHOLS
OF COUNSEL
September 18, 1997
Mr. Bridges Ballowe VIA FACSIMILE
c/o Nextel Texas, Inc. 214/630-1426
8585 North Stemmons Frw~7.
South Tower, 10th F1.
Dallas, Texas 75247
Re: NEXTEL License for Communications Facilities
Dear Mr. Ballowe:
This letter is written in reference to the negotiations between the City of Coppell
and Nextel for a license to install communication facilities on the proposed water tower at
Wagon Wheel Park. Please be advised that I have reviewed the Water Tower Lease
Agreement recently sent by your office, and have discussed the terms of this agreement,
and consideration of its use with officials at the City.
As you know, we have been working toward an agreement for Nextel's use of the
City's facilities for some time now. Prior to June of this year, the parties were
negotiating the language of a License for Communications Facility proposed by the City.
Accordingly, some of the language and provisions of that draft license were included at
the request of Nextel. (Please find enclosed the latest draft of the License for
Communications Facilities).
While we understand that Nextel may consider it simpler to use its form lease
agreements, or agreements previously entered into by Nextel, the City would prefer to
utilize a form of the License Agreement that is already the product of negotiation between
the parties.
It should be understood that Nextel is not the only communications company
which desires to place its facilities on City property. As you may know, the City has an
obligation to treat each of these potential lessees as equally as is feasible. For this and
other considerations, the City has carefully crafted the language in its proposed License
for Communications Facility. While the City is receptive to suggested revisions, as they
have been in the past, the City desires to utilize this license agreement in order to insure
Mr. Bridges Ballowe
September 18, 1997
Page - 2
consistency among all those leasing City property. Hopefully, you will take this
opportunity to again review the License Agreement which was previously negotiated by
the parties, and the parties can enter into a mutual agreement in the near future.
Thank you for your attention to this matter. Please feel free to call if you have
any questions.
Very truly yours,
NICHOLS, JACKSON, DILLARD,
HAGER & SMITH, L.L.P.
JCM/mmm
Enclosure
cc: Ken Griffin, City of Coppell (w/enclosure)
12345
NICHOLS, JACKSON, DILLARD, HAGER & SMITH, L.L.P..
DRAFT
JUNE 9, 1997
STATE OF TEXAS
KNOWN ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS
LICENSE FOR COMMUNICATIONS FACILITIES
This non-exclusive License for Communications Facilities ("Agreement") is made by and
between the City of Coppell (hereinafter referred to as the "CITY") and NEXTEL, (hereinafter
referred to as "LICENSEE"), for the use of certain premises and/or facilities according to the
following terms and conditions:
WITNESSETH:
WHEREAS, the CITY desires to provide LICENSEE with facilities for housing and
operating certain communications equipment, including the installation of antennas or antenna
systems and the space required to nm cable between the equipment and the antenna or antenna
systems; and
WHEREAS, the CITY owns and/or intends to construct the premises and facilities
described below and desires to allow the LICENSEE to enter and utilize these facilities and
premises;
NOW, THEREFORE, for the consideration and on the terms and conditions hereinafter set
forth, the parties agree as follows:
Location
1. The premises and facilities ("the "PREMISES") to be provided by the City are
located at:
Wagon Wheel Park
Coppell, Dallas County, Texas
(project WA 96~01)
more specifically described as: Wagon Wheel Water Tower
License for Communications Facilities - Page 1 9064
Equipment
2. The CITY agrees to allow installment of LICENSEE's equipment and/or
improvements as described and illustrated in "Appendix A" (also referred to as the "Site Plan"),
which is attached hereto, and incorporated herein, in accordance with the terms of this Agreement.
Terlll
3. This Agreement shall be for an initial term of five (5) years, commencing on
(the EFFECTIVE DATE), and said Agreement may be terminated during
this period or any extension period, pursuant to paragraphs 5, 6, 7 and 11. Upon expiration of the
initial term, the CITY or LICENSEE shall have the right to terminate this agreement at any time
upon providing one (1) year prior written notice without further obligation hereunder.
4. LICENSEE is granted the option to renew this license for three (3) additional five
(5) year periods, after the initial term expires. LICENSEE must give written notice of a decision to
exercise this option to CITY no less than ninety (90) days prior to the expiration of the carrent term
or period. All the terms and covenants of this Agreement apply to all extension periods, subject to
Section 9, and subject to amendment by the mutual agreement of the parties, in writing and signed
by both parties, as provided by this Agreement. At the expiration of all of the extension periods
provided herein, unless renewed or superseded, this Agreement shall continue from month to
month under the terms and conditions set forth herein, and it may be terminated by either party
upon at least thirty (30) days notice to the other party.
Early Termination
5. This Agreement may be tenrdnated without further liability on thirty (30) days prior
written notice as follows: (i) by LICENSEE if it does not obtain or maintain any license, permit or
other approval necessary for the construction and operation of LICENSEE Facilities; or (ii) by
LICENSEE if LICENSEE is unable to occupy and utilize the PREMISES due to an action of the
FCC, including without limitation, a take back of channels or change in frequencies.
Licensee Default
6. The occurrence of any one or more of the following events shall constitute an
"Event of Default" hereunder by LICENSEE:
(a) The failure by LICENSEE to make any payment of rent or any other
payment required to be made by LICENSEE hereunder, as and when due, where such failure shall
continue for a period of twenty (20) days after written notice thereof is received by LICENSEE
from CITY.
License for Communications Facilities - Page 2 9064
(b) The failure by LICENSEE to observe or perform any of the covenants or
provisions of this Agreement to be observed or performed by LICENSEE, other than as specified in
Paragraph 5(a), where such failure shall continue for a period of thirty (30) days after written notice
thereof is received by LICENSEE from CITY; provided, however, that it shall not be deemed an
Event of Default by LICENSEE if LICENSEE shall commence to cure such failure within said
thirty (30) day period and thereafter diligently prosecutes such cure to completion.
7. If there occurs an Event of Default by LICENSEE, in addition to any other remedies
available to CITY at law or in equity, CITY shall have the option to terminate this Agreement and
all rights of LICENSEE hereunder.
Nuisance
8. The CITY may terminate this License in the event the use of the Leased Site shall
have been found to be a nuisance. In the event of termination by CITY, the CITY shall give
LICENSEE notice in writing at least one (1) year prior to the termination date.
Use of Premises, Assignment
9. The use of the provided PREMISES by the LICENSEE in conjunction with the
terms of this Agreement, is to be for the installation, operation and maintenance of communications
equipment, in strict compliance with this Agreement and the attached Site Plan ("Appendix A").
LICENSEE may not assign, or otherwise transfer all or any part of its interest in this Agreement or
in the PREMISES without the prior written consent of CITY; provided, however, that LICENSEE
may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company
or to any successor-in-interest or entity acquiring fifty-one percent (51%) or more of its stock or
assets, subject to any financing entity's interest, if any. CITY may assign this Agreement upon
written notice to LICENSEE, subject to the assignee assuming all of CITY'S obligations herein.
Notwithstanding anything to the contrary contained in this Agreement, LICENSEE may assign,
mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Agreement
to any financing entity, or agent on behalf of any financing entity to whom LICENSEE (i) has
obligations for borrowed money or in respea 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.
Consideration
10. LICENSEE agrees to pay to CITY the sum of $500 (Five Hundred Dollars) upon
execution of this Agreement. Additionally, in consideration for providing the PREMISES for use
by the LICENSEE, the LICENSEE shall pay to the CITY a rental fee of $1,300 per month for the
first year, due on the first day of each month, and prorated for any partial month. This rental
payment shall commence on the EFFECTIVE DATE. The monthly rent in subsequent years shall
be the monthly rent in effect for the previous year increased by three percent (3%).
License for Communications Facilities - Page 3 9064
Access
11. The LICENSEE shall have the non-exclusive fight to access the aforementioned
PREMISES at any time, by contacting and providing notice to the CITY. If the CITY is contacted
by LICENSEE after the normal business hours of the CITY, for the purpose of accessing the
aforementioned location, the LICENSEE agrees to reimburse the CITY for the actual cost of any
city staff involvement necessary for this access.
Interference
12. LICENSEE shall not cause electrical interference to the CITY or to any other
licensee who is using the PREMISES at the time of LICENSEEs installation or operation of its
equipment. Should such interference occur, LICENSEE will take all steps necessary to correct
such interference and, if such interference cannot be corrected, LICENSEE will cease its operations
from the site, and this Agreement shall be terminated. The CITY will not grant a license to any
other party for the use of the CITY's property without including in that license a provision stating
that the party's use will not in any way adversely affect or interfere with the LICENSEE's signal
operation of its communication system. Furthermore, the LICENSEE shall have the fight to
terminate this Agreement upon thirty (30) days notice to the CITY if another user of the facilities
causes significant interference with LICENSEEs operations, and such interference is not corrected
within thirty (30) days following the notice.
13. LICENSEE shall have the sole burden of, and be responsible for all costs associated
with, alleging and proving that another user of the PREMISES is causing significant interference,
or for otherwise enforcing LICENSEE's rights under this Agreement. The CITY shall not be
responsible for the costs associated with the resolution of any dispute between users of the
PREMISES, or enforcement of any of LICENSEE's rights under this Agreement.
Utility Easements and Utility Cost
14. The LICENSEE will be responsible for any and all costs associated with electrical
hookup, maintenance and service, which is due to the LICENSEEs operations at the PREMISES.
The CITY shall provide and grant to LICENSEE any easements across CITY Property necessary
for the provision of electric and telephone hookup and service to this PREMISES and LICENSEE's
equipment.
Taxes
15. LICENSEE agrees to reimburse the CITY for all such taxes which are assessed
against the CITY due to the personal property improvements constructed or maintained by
LICENSEE on or about the PREMISES; provided however, the CITY shall use its best efforts to
provide prior notification of any taxes for which LICENSEE is to be charged, so the LICENSEE
will have the opportunity to appear before the taxing authority and contest any assessment.
License for Communications Facilities - Page 4 9064
Liability and Indemnification
16. LICENSEE shall at all times comply with all laws and ordinances and all rules and
regulations of municipal, state and federal govemment authorities relating to the installation,
maintenance, height, location, use, operation, and removal of the equipment, antenna systems, and
other alterations or improvements authorized herein, and shall fully indemnify the CITY against
any loss, cost,. or expense which may be sustained or incurred by the CITY as a result of
LICENSEEs installation, operation, or removal of said improvements, except where caused in
whole or in part by the negligence or willful misconduct of the CITY, its agents, servants or
employees.
17. LICENSEE shall indemnify and hold CITY harmless from all claims (including
attomey's fees, costs and expenses of defending against such claims) arising from the negligence or
willrid misconduct of LICENSEE or LICENSEE'S agents or employees in or about the
PREMISES. CITY shall indemnify and hold LICENSEE harmless from all claims (including
attomey's fees, costs and expenses of defending against such claims) arising or alleged to arise
from the acts or omissions of CITY or CITY'S agents, employees, licensees, invitees, contractors
or other tenants occurring in or about the PREMISES. The duties described in Paragraph 18
survive termination of this Agreement.
Insurance
18. LICENSEE shall obtain and maintain in full force and effect for the duration of this
Agreement, and any extension or renewal thereof, at LICENSEEs sole expense, liability insurance
and workman's compensation insurance, and a certificate of insurance shall be submitted to and
approved by the CITY prior to the commencement of any performance under this Agreement. The
required insurance must provide a minimum of $1,000,000 single occurrence coverage for bodily
injury (including death), and a minimum of $1,000,000 single occurrence coverage for property
damage. The CITY shall be named as an additional insured under said policy of insurance.
Condition of Site
19. The CITY shall maintain the PREMISES in compliance with all applicable statutes,
regulations and rules, and in a manner which will not interfere with LICENSEE's reasonable use of
the site. Upon expiration, cancellation, or termination of this Agreement, the LICENSEE should
remove its equipment, antenna systems, fixtures, and structures from the PREMISES at
LICENSEE's cost and expense. Title to all such equipment, fixtures and structures remaining
belong to CITY. However, upon vacation of this site, LICENSEE shall surrender the PREMISES
in substantially the same condition as received, except for ordinary wear and tear, as determined by
the CITY. If, as determined by the CITY, the PREMISES are not surrendered in satisfactory
condition, the LICENSEE shall be liable to the CITY for an amount representing the actual cost to
restore the PREMISES to substantially the same condition as received.
License for Communications Facilities - Page 5 9064
Notice
20. All notices to the parties shall be in writing and shall be sent by certified or
registered mail, or hand delivered, to the address of the party as it appears in this Agreement.
Marking and Lighting Requirements
21. The LICENSEE acknowledges that it shall be responsible for compliance with all
tower or building marker and lighting requirements which may be required by the Federal Aviation
Administration or the Federal Communication Commission in conjunction with LICENSEE's
installation of improvements under this Agreement, as well any expenses, fees or fmes associated
with compliance or non-compliance. Should the CITY be cited by either the FCC or FAA because
the location is not in compliance, due to LICENSEE's installation of improvements under this
Agreement, and if the LICENSEE does not cure the conditions of noncompliance within the time
frame allowed by the citing agency, the CITY may terminate this Agreement.
Site Plan
22. The Site Plan (attached as "Appendix A") must be approved by the CITY prior to
the execution of this Agreement, with approval or disapproval not to be unreasonably delayed or
withheld. The Site Plan shall describe and illustrate the location of the equipment, fixtures,
antennas, cables, wiring and other structures to be installed, maintained and operated under this
Agreement. The Site Plan shall include a scale drawing and inventory analysis of the proposed
installations, as well as an elevation of the PREMISES with the proposed installations.
Performance under this Agreement shall be in strict compliance with the Site Plan. If the
LICENSEE's installation, maintenance, or operation of equipment, fixtures, antennas, cables,
wiring and other structures fails to comply with the approved Site Plan, at any time, as
determined by the CITY, then the CITY shall have the fight to terminate this Agreement
upon thirty (30) days notice to LICENSEE.
Waiver of CITY'S Lien
23. CITY waives any lien rights it may have concerning the LICENSEE Facilities
which are deemed LICENSEE'S personal property and not fxxtures, and LICENSEE has the right
to remove the same at any time without CITY' S consent.
24. CITY acknowledges that LICENSEE has entered into a financing arrangement
including promissory notes and financial and security agreements for the fmancing of the
LICENSEE Facilities (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,
CITY (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as
fuctures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution,
License for Communications Facilities - Page 6 9064
foreclosure, sale, levy, attachments, 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.
Hazardous Substances
25. LICENSEE agrees that it will not use, generate, store or dispose of any Hazardous
Material on, under, about or within the Land in violation of any law or regulation. CITY
represents, warrants and agrees (1) that neither CITY nor, to CITY'S knowledge, any third party
has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of,
any Hazardous Material on, under, about or within the Land in violation of any law or regulation,
and (2) that CITY will not, and will not permit any third party to use, generate, store or dispose of
any Hazardous Material on, under, about or within the Land in violation of any law or regulation.
CITY and LICENSEE each agree to defend, indemnify and hold hmmless the other and the other's
partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs
(including reasonable attomeys' fees and costs) arising from any breach of any representation,
warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous
Material" shall mean petroleum or any petroleum product, asbestos, any substance known by the
state in which the Land is located to cause cancer and/or reproductive toxicity, and/or any
substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation. This paragraph shall survive the termination of this
Agreement.
Entire Agreement
26. This Agreement, together with Appendix "A" attached, is the entire agreement
between the parties with respect to the subject matter covered in this Agreement. Them is no other
collateral oral or written agreement between the parties that in any matter relates to the subject
matter of this Agreement.
Representation
27. Both the LICENSEE and the CITY represent that they have full capacity and
authority to grant all fights and assume all obligations they have granted and assumed under this
Agreement.
Governing Law
28. The validity of this Agreement and any of its terms or provisions, as well as the
rights and duties of the parties, shall be govemed by the laws of the State of Texas, and any venue
for any action conceming this Agreement shall be in Dallas County, Texas.
License for Communications Facilities - Page 7 9064
Amendment
29. This Agreement may be amended by the mutual agreement of the parties to it, in
writing and attached to and incorporated in this Agreement.
Legal Construction
30. In the event that any one or more of the provisions contained in the Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect the other provisions, and the Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been contained in it.
EXECUTED on the day of ., 1997, in
County, Texas.
LICENSEE: NEXTEL
By:
Title:
Address:
CITY: CITY OF COPPELL, TEXAS
By:
City Manager
255 Parkway Boulevard
P.O. Box 478
Coppell, Texas 75019
ATTEST:
City Secretary
APPROVED AS TO FORM:
City Attorney
License for Communications Facilities - Page 8 9064
APPENDIX "A"
SITE PLAN