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License agreementSTATE OF TEXAS COUNTY OF DALLAS KNOWN ALL MEN BY THESE PRESENTS: 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 FiberTower Corporation, a Delaware corporation (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 anteima systems and an equipment cabinet; and WHEREAS, the CITY owns 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 depicted on Exhibit "A", which is attached and incorporated herein by reference as if set forth in full, more specifically described as the "site" or the "leased premises.' Equipment 2. The CITY agrees to allow installment and maintenance of LICENSEE'S equipment and/or improvements as described and illustrated in Appendix "A", which is attached hereto and incorporated herein by reference as if set forth in full (also referred to as the "Site Plan"), in accordance with the terms of this Agreement. LICENSEE further has the right to add connections to additional carrier(s) that are presently or may in the future be co-located on the Premises; provided however, that LICENSEE will promptly notify CITY of such additional connection(s) and submit revised drawings to reflect such additional co~mections. At any time during the Term or subsequent terms, subject to space availability, LICENSEE may place additional dishes on the Premises, which shall increase the monthly rental by three hundred dollars ($300.00) per month per dish." Term LICENSE FOR COMMUNICATIONS FACILITIES - Page I 68983 3. This Agreement shall be for an initial term of five (5) years, commencing on the effective date of execution and said Agreement may be terminated during this period or any extension period, pursuant to paragraphs 5, 7 and 12. This Agreement will automatically terminate if LICENSEE is unable to obtain or maintain all necessary Governmental Approvals for LICENSEE'S intended use of and improvements to the PREMISES. If public necessity so requires, upon expiration of the initial 5-year term, the CITY or LICENSEE shall have the right to terminate this agreement at any time upon providing written notice of not less than ninety (90) days, without further obligation hereunder. 4. Unless sooner terminated, LICENSEE is granted the option to renew this license for two (2) 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 current 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 heroin, 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. Licensee Default 5. 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. Time shall be and is of the essence with regard to LICENSEE'S obligation to timely remit all rentals required herein. (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 prosecute such cure to completion. (c) default. Filing of bankruptcy or declaration of insolvency shall constitute an act of 6. 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 and Overriding Public Need LICENSE FOR COMMUNICATIONS FACILITIES - Page 2 68983 7. The CITY may terminate this License in the event the use of the Leased Site shall have been found to be a public or private nuisance, under the law of the State of Texas. 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. Notwithstanding the foregoing, in the event of an overriding public need, as determined by the CITY in its sole discretion, then the CITY may terminate this Agreement upon written notice, delivered not less than ninety (90) days prior to termination. In the event that the facilities and water tower upon which LICENSEE'S equipment, antenna systems and structures will be placed are permanently destroyed, removed or taken down, this Agreement shall terminate automatically without prior notice, in the absence of any overriding public need. Title and Quiet Possession 8. CITY represents and agrees (a) that it is the owner of the Site; (b) that it has the right to enter into this Agreement; (c) that the person signing this Agreement has the authority has the authority to sign; (d) that LICENSEE is not in default beyond the expiration of any cure period; and (e) that C1TY shall not have unsupervised access to the Site or to the LICENSEE'S equipment, subject to CITY'S right of eminent domain. Use and Sublet of Premises 9. The use of the provided PREMISES by the LICENSEE in conjunction with the terms of this Agreement, is for the sole purpose of installation, operation and maintenance, removal, replacing, modifying of communications equipment, being the operation of a communications site as part of a telecommunications network operated by LICENSEE, in strict compliance with this Agreement and the attached Exhibits "A" through "D". The LICENSEE may not sublet to or license others to use the PREMISES without the prior written consent of the CITY; provided however, LICENSEE may without the consent of CITY assign this license to any party that is a parent company, wholly-owned subsidiary, or affiliate of LICENSEE. Consideration 10. In consideration for providing the PREMISES for use by the LICENSEE, the LICENSEE shall pay to the CITY a rental fee of $300.00 per month, partial months to be prorated and payable on the first day of each month thereafter throughout the term of this agreement. Rent shall be increased at the rate of 3% annually over the term of the lease and upon renewal for subsequent terms, rant shall be increased at a rate of 3% annually. Access 11. The LICENSEE shall have the non-exclusive right to access the aforementioned PREMISES at any time, by contacting and providing notice to the CITY. If LICENSEE requires access to the SITE after the normal business hours of the CITY of 8:00 a.m. to 5:00 p.m. ("Business Hours"), LICENSEE shall have emergency access twenty four hours a day seven days a week by placing a telephone call to the Director of Parks and Recreation at the number provided and leave a message regarding its access to the SITE prior to such access. If the CITY is contacted by LICENSE FOR COMMUNICATIONS FACILITIES - Page 3 68983 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(A). LICENSEE shall not cause electrical interference to the CITY or to any other licensee who is using the PREMISES at the time of LICENSEE'S 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, if any party, whose equipment is subsequently placed or altered after LICENSEE'S installation, interferes with LICENSEE'S equipment, LICENSEE will have the right, in addition to any other rights that it may have at law or in equity to elect to enjoin such interference or to terminate the Agreement upon notice to the CITY. (B) LICENSEE, during the term of this agreement, shall not interfere with the uses and operation of Andrew Brown Park Central, its game fields, parking lot or concession facilities. Under no circumstances shall LICENSEE conduct installation, repair, removal or maintenance activities during sporting events scheduled for Andrew Brown Park Central. 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 signiftcant 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. If LICENSEE may obtain power from one of LICENSEE'S customers ("CUSTOMER") that are co-located at the Premises, LICENSEE shall provide evidence of such consent from CUSTOMER, the CITY shall permit LICENSEE to draw its power from LICENSEE'S customer. LICENSEE will be responsible for any and all costs associated with electrical hookup, maintenance and service, which is due to the LICENSEE'S operations at the PREMISES. The CITY shall provide and grant to LICENSEE any easements 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 ks best efforts to LICENSE FOR COMMUNICATIONS FACILITIES - Page 4 68983 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. Liability, Release and Indemnification 16. LICENSEE shall at all times comply with all laws and ordinances and all rules and regulations of municipal, state and federal government authorities relating to the installation, maintenance, height, location, use, operation, and removal of the equipment, antenna systems, and other alterations or improvements authorized herein, m~d SHALL FULLY INDEMNIFY THE CITY AGAINST ANY LOSS, DAMAGE, COST, OR EXPENSE WHICH MAY BE SUSTAINED OR INCURRED BY THE CITY AS A RESULT OF THE INSTALLATION, MAINTENANCE, OPERATION, OR REMOVAL OF SAID IMPROVEMENTS, EXCEPT WHERE CAUSED IN WHOLE OR IN PART BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY, ITS AGENTS, SERVANTS OR EMPLOYEES. 17. LICENSEE AGREES AND IS BOUND TO INDEMNIFY, DEFEND, AND HOLD THE CITY WHOLE AND HARMLESS AGAINST ANY AND ALL CLAIMS FOR ANY LOSS OR DAMAGES THAT MAY ARISE OUT OF THE USE, MAINTENANCE, AND OCCUPANCY OF LICENSEE'S INSTALLATIONS AND IMPROVEMENTS BY LICENSEE ON THE ABOVE DESCRIBED PROPERTY, EXCEPT WHERE CAUSED IN WHOLE OR IN PART BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY, ITS AGENTS, SERVANTS OR EMPLOYEES. 18. LICENSEE AGREES THAT LICENSEE SHALL INDEMNIFY, DEFEND, RELEASE, ACQUIT, AND HOLD FREE AND HARMLESS THE CITY, ITS AGENTS, REPRESENTATIVES AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LIABILITIES, LOSSES, AND DAMAGE, WHETHER ASSERTED BY LICENSEE, ITS AGENTS, REPRESENTATIVES OR EMPLOYEES, OR ANY THIRD PARTY WHICH IN ANY WAY RELATE TO OR ARISE FROM LICENSEE'S EQUIPMENT OR THE INSTALLATION OR MAINTENANCE THEREOF, OR FROM LICENSEE'S ENTRY ONTO AND UTILIZATION OF THE CITY'S PREMISES AND FACILITIES, INCLUDING BUT NOT LIMITED TO CLAIMS OR CAUSES OF ACTION ALLEGING THAT LOSS, INJURY OR DAMAGE WERE CAUSED IN WHOLE OR IN PART BY THE CITY'S NEGLIGENCE. TO THE EXTENT ALLOWED BY LAW, CITY HEREBY WAIVES ANY CLAIMS THAT IT MAY HAVE AGAINST LICENSEE WITH RESPECT TO CONSEQUENTIAL, INCIDENTAL OR SPEClAL DAMAGES. IN ADDITION, LICENSEE SHALL BE LIABLE FOR ANY AND ALL DAMAGE TO THE PREMISES CAUSED BY LICENSEE OR ITS AGENTS, REPRESENTATIVES, OR EMPLOYEES, INCLUDING BUT NOT LIMITED TO CALIMS OR CAUSES OF ACTION ALLEGING THAT LOSS, INJURY OR DAMAGE WERE CAUSED IN WHOLE OR IN PART BY THE LICENSEE'S NEGLIGENCE. Insurance LICENSE FOR COMMUNICATIONS FACILITIES - Page 5 68983 19. LICENSEE shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension or renewal thereof, at LICENSEE'S 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 (except for worker's compensation). Condition of Site 20(A). LICENSEE accepts the PREMISES as is, in its current condition, and the CITY makes no representations or warranties, and hereby disclaims any and all such representations or warranties, express or implied, of any kind or nature, with regard to the facilities and the PREMISES. The CITY shall maintain the PREMISES in compliance with all applicable statutes, regulations and mles, 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 shall remove its equipment, antem~a systems and structures from the PREMISES at LICENSEE'S sole cost and expense. However, upon vacation of this site, LICENSEE shall surrender the PREMISES in substantially the same condition as received, except for ordinary wear and tear, and casualty, 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. In the event of LICENSEE'S timely failure to remove its equipment, antenna systems, and structures, the CITY may do so at its expense and retain and sell any such equipment, antenna systems, and structures in compensation for any past due obligations. Any permanent improvements or fixtures installed on the PREMISES by LICENSEE shall become the property of the CITY upon the expiration of this Agreement. B. In addition to the conditions of the site, LICENSEE shall: 1. locate, at its sole expense, the antenna on existing light structures or relocate existing light structures subject to prior approval by the City Manager or his designee; 2. cause the equipment cabinet to be secured by an appropriate gate, lock, and/or appropriate security device(s); 3. all construction, installation and location or relocation of any structure cabinet antenna or equipment shall be completed by October 1, 2005 except upon express written consent of the City Manager or his designee. Tower Maintenance and Relocation 21. It is understood that periodic maintenance and repair of the CITY'S facilities on the PREMISES is necessary. The LICENSEE agrees that its rights under this Agreement are subordinate to the CITY'S rights to conduct and perform such maintenance and repairs. For such purposes, the CITY may reasonably and temporarily interfere with, hinder and interrupt LICENSEE'S use of the facilities and PREMISES except otherwise provided in this paragraph LICENSE FOR COMMUNICATIONS FACILITIES - Page 6 68983 CITY shall not relocate LICENSEE, without the prior written approval of LICENSEE, which approval shall not be unreasonably withheld or delayed. Such relocation, if approved, shall be at CITY's expense, unless there is a public necessity or emergency. Notice 22. All notices to the parties shall be in writing and shall be sent by certified or registered mail, or nationally recognized overnight carrier or hand delivered, to the address of the party: as to Tenant: FiberTower Corporation 185 Berry Street, Suite 4800 San Francisco, CA. 94107 Attn: Legal with a copy: FiberTower Corporation 990 North Bowser Road, Suite 780 Richardson, Texas 75081 Attn: Real Estate as to Lm~dlord: City of Coppell 255 Parkway Boulevard P. O. Box 9478 Coppell, Texas 75019 Attn: City Manager Either party hereto may change the place for the giving of notice to it by thirty (30) days written notice to the other as provided herein. Marking, Lighting and Radio Frequency Requirements 23. 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 fines 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. 24. LICENSEE agrees to comply with the Federal Communications Commission ("FCC") radio frequency ("RF") exposure roles and requirements for RF exposure to humans. LICENSEE will not cause radio frequency and/or electrical interference to the existing equipment of CITY or to any other tenant who is using the Site upon earlier of the Commencement Date or at the time LICENSEE installs its Communications Equipment, provided that the equipment used by CITY or other licensee is operating within the technical parameters specified by its manufacturer LICENSE FOR COMMUNICATIONS FAC[LIT[ES - Page 7 68983 and/or as defined by the FCC (see Schedule attached hereto for a list of existing and/or known users on the Site). Upon written notice from CITY to LICENSEE of such interference, LICENSEE will take all reasonable steps to correct such interference in a timely manner. If such interference cannot be reasonably corrected within five (5) business days from receipt of CITY's notice, LICENSEE will cease using its Communication Equipment, except for testing, until such time as LICENSEE corrects the interference. 25. CITY represents that it has no knowledge of any substance, chemical or waste (collectively, "substance") on the Site that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. LICENSEE will not introduce or use any such substance on the Site in violation of any applicable law. CITY and LICENSEE 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 broach of any warranty or agreement contained in Paragraph 25. As used in Paragraph 25, "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). NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PROHIBIT THE CITY FROM SEEKING CONTRIBUTION FROM LICENSEE FOR ANY OF ITS ACTS OF NEGLIGENCE OR GROSS NEGLIGENCE. Site Plan 26. The Site Plan (attached as "Appendix A") has been 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 APPROVED 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 AND SPECIAL USE PERMIT, AT ANY TIME, AS DETERMINED BY THE CITY, THEN THE CITY SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT UPON THIRTY (30) DAYS NOTICE TO LICENSEE. Entire Agreement 27. This Agreement, together with Appendix "A" attached, is the entire agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written agreement between the parties that in any matter relates to the subject matter of this Agreement. LICENSE FOR COMMUNICATIONS FACILITIES - Page 8 68983 Representation 28. Both the LICENSEE and the CITY represent that they have full capacity and authority to grant all rights and assume all obligations they have granted and assumed under this Agreement. Governing Law 29. The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the pmties, shall be governed by the laws of the State of Texas, and any venue for any action concerning this Agreement shall be in Dallas County, Texas. Amendment 30. This Agreement may be amended only by the written mutual agreement of the parties hereto. Legal Construction 31. In the event that any one or more of the provisions contained in this 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 this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. Termination 32. Except as otherwise provided herein, this License may be terminated upon one hundred eighty (180) days written notice by LICENSEE if the PREMISES or the LICENSEE'S equipment is, or becomes, unacceptable under LICENSEE'S design or engineering specifications for its equipment or the communications system to which the equipment belongs. Upon the termination of the License under these conditions, LICENSEE shall pay to the CITY a buyout fee equivalent to six (6) months rent under the terms and conditions of the License at the time of the termination. Assignment/Sublease 33. LICNSEE 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, with prompt notice, LICENSEE may assign its interest to its parent company, and 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, in this Agreement. 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 respect of LICENSE FOR COMMUNICATIONS FACILITIES - Page 9 68983 guaranties thereof, (ii) has obligations evidenced by bonds, debentured, 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. EXECUTED in single or multiple originals on the/7~ay of ~. ~-~-,tt~& ./. 2004, in Dallas County, Texas. LICENSEE: FIBERTOWER CORPO a Delaware Corporatiol By: ;i,~urTuwei- "' ...... *;" Berry Street, Suite 4800 F. ranc~.,o, CA 94107 CITY: CITY OF C~ )ELL, TEXAS, a Texas Muhic~ p~l Corlc/oration (t~yVM nager /~. o5 .P;rokxW:TY8 B o ale v ara Coppell, Texas 75019 ATTEST: LICENSE FOR COMMUNICATIONS FACILITIES - Page 10 68983 APPENDIX "A" SITE PLAN