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HomeMy WebLinkAboutResolution 2000-088 RESOLUTION NO. 2000-088 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND HILLS, TEXAS, that: 1. The City Manager be, and is hereby, authorized to execute the attached Communication Facility Lease with METRICOM, INC. for antennae space at Bursey Road water tower, as the act and deed of the City. PASSED AND APPROVED this 27th day of November, 2000. APPROVED: \,ì\t-~~;L/~{u~/' I '¡~ '.'"'.'-',,... ,.u~". . ,~ .. ~oo.. 0- -':.;:..,;.. \ì1ì ... ';- 1\'-' ... -'';'' If \"-\\'= : ì :~= ." ~ I ..~ _._ ·$-.'TTEST:rf1\ /((ð): 0··.. ¡Ill .... . ,/~'</~';j~O,"'O' ~ .,".' ßJ, . /. f~~7lex,;tltI¿¿ ~ '-"Patricia Hutson, City Secretary APPR)OYED A~ TO FORM ~~D~LE~ALlTY: _----/ // . \ L // , .------ / - '",,,.----- / /, /' . '-- /~- ( I ,"" ,,/, / / .,,;;:// c ,,/ / '. / . ," /" "'/ (~- ./"'" ., " £. - ...' ~/ex M ntire, City Attorney APPROVED AS TO CONTENT: Communication Facility Lease THIS COMMUNICATION FACILITY LEASE (this "Lease") is made as of Date"), by and between North Richland Hills, a Municipality, as lessor Delaware corporation, as lessee ("Metricom"). , 2000 (the "Effective ("Lessor"), and METRICOM, INC., a 1. PREMISES. Lessor is the owner of that certain real property located at 7301 Bursey Road in the City of North Richland Hills, State of Texas, commonly known as the Bursey Road Elevated Water Tank site, as more particularly described on Exhibit" A" attached hereto and incorporated herein by reference (the "Property"). Lessor hereby leases to Metricom certain portions of the water tower and ground space (collectively, the "Premises") located on the Property. The Premises are more particularly described on Exhibit "B" attached hereto and incorporated herein by reference. Metricom shall have the right to use the Premises for the purpose of installing, removing, replacing, modifying, maintaining, and operating a communications facility including (without limitation) up to three (3) equipment cabinets; up to sixteen (16) radios and antennas; and associated equipment, fixtures, and cabling (collectively the "Communication Equipment"). 2. TERM OF LEASE. The initial term (the "Term") of this Lease shall be sixty (60) calendar months commencing upon the start of installation of the Communication Equipment (the "Commencement Date") in and about the Premises and expiring on the date, which is sixty (60) calendar months thereafter. Metricom shall have the right to extend the Term for two (2) successive sixty (60) month terms (the "Renewal Terms") on the same terms and conditions. This Lease shall automatically be extended for each successive Renewal Term unless Metricom notifies Lessor of its intention not to renew at least thirty (30) days prior to commencement of the succeeding Renewal Term. 3. RENT AND COSTS. Metricom shall pay Lessor One Hundred Twenty Thousand and No/100 Dollars ($ 120,000.00) as full rental for the initial Term (the "Rent"), payable in quarterly installments of Six Thousand and No/100 Dollars ($ 6000,00) each (the "Quarterly Payments"). The first Quarterly payment of Rent (the "Initial Payment") shall be payable within thirty (30) days of the Commencement Date, prorated as appropriate, Subsequent Quarterly Payments shall be payable on or before January 1, April1, July 1, and October 1 of each year. The Rent shall be increased at the commencement of each Renewal Term by an amount equal to fifteen percent (15%) of the Rent in effect for the previous Term. All payments due under this Agreement shall be sent to Lessor's address indicated under § 12 below, to the attention of Mr. Terrv Kinzie. 4. ACCESS TO COMMUNICATION EQUIPMENT. After the initial installation of the Communication Equipment, Lessor shall permit Metricom unrestricted access to the Property and Premises seven (7) days a week, twenty-four (24) hours a day. To facilitate such 24/7/365 access, Metricom shall have the right to install a lockbox at a mutually agreeable location or the parties shall make other appropriate arrangements. 5. INSURANCE. Metricom at its own cost shall obtain and maintain at all times during the term of this Lease Commercial General Liability insurance, including contractual liability, protecting Metricom in an amount not less than One Million Dollars ($1,000,000) each occurrence and in an amount not less than One Million Dollars ($1,000,000) annual aggregate. Such insurance policy shall name the Lessor as an additional insured as respects liability arising out of and in connection with the presence of Communication Equipment at the Premises, Such coverage shall not be canceled or materially altered to red uce the policy limits until the Lessor has received at least thirty (30) days' advance written notice of such cancellation or change. Metricom shall be responsible for notifying the Lessor of such change or cancellation. Such insurance policy shall contain a severability of interest clause. 6. INDEMNITY. Metricom shall indemnify, protect, defend, and hold Lessor and its employees harmless from and against any and all claims, liabilities, judgments, costs, damages, and expenses, including reasonable attorney's fees, arising out of or in any way related to the Communication Equipment, including the installation, maintenance, operation, or removal thereof, except to the extent that such claim, liability, judgement, cost, damage, or expense arises from the negligence or willful misconduct of Lessor, its employees, or agents. 7. NON-INTERFERENCE. The Communication Equipment and the use thereof shall not interfere with the use of any other communication or similar equipment of any kind and nature owned or operated by Lessor or other occupants in the Building existing as of the Commencement Date, except as may be permitted by applicable laws; provided, however that subsequent to the installation by Metricom of the Communication Equipment, Lessor 1 /{OWFoflIlDocs\ WAr\ WAr lv111stcr /2-7-99.doc agrees not to install or allow installation of new equipment on the Premises if such equipment causes interference with Metricom's operations. All interference claims shall be settled in accordance with the then prevailing interference rules and regulations promulgated by the FCC. 8. UTILITIES. Metricom shall be entitled to install, and shall pay for any utilities and services required for the Communication Equipment. Lessor shall provide Metricom, at Metricom's cost, with such reasonable assistance as is necessary to enable Metricom to arrange for such utilities and services. 9. ASSIGNMENT. Metricom shall not assign this Lease without the written consent of the Lessor, which shall not be unreasonably withheld, delayed, or conditioned. The transfer of the rights and obligations of Metricom to a parent, subsidiary, or other affiliate of Metricom, or to any successor in interest or entity acquiring fifty-one percent (51 %) or more of Metricom's stock or assets, shall not be deemed an assignment. Metricom shall give to Lessor at least thirty (30) days' prior written notice of any transfer for which Lessor's consent is required hereunder. 10. IMPROVEMENTS; REMOVAL OF COMMUNICATION EQUIPMENT. Metricom may, at its expense, make such improvements to the Premises, as it deems necessary for the operation of its communication facility. All cabling to be used for the communication facility will be located inside of the water tower legs in rectangular conduit. Metricom will paint the antennae(s), conduit, exposed cables and any other exposed facilities to match as close as is reasonably practicable the Tower base in color. Lessor agrees to cooperate with Metricom, at Metricom's expense, in obtaining any required permits or zoning approvals, The Communication Equipment is and shall remain the property of Metricom; and upon the expiration or earlier termination of this Lease, Metricom shall, at Metricom's sole cost and expense, remove the Communication Equipment and return the Premises to substantially the condition existing on the Commencement Date, normal wear and tear excepted, or leave it in its improved condition, as reasonably appropriate under the circumstances. Lessor reserves the right to perform maintenance on and make modifications to the water tank, both structural and cosmetic, at whatever intervals may be required to assure the integrity and longevity of the facility, provided Lessor will use its best efforts to provide Meh'icom with sufficient notification of the intended work and an opportunity to temporarily relocate its Communications Equipment to continue its operations, or otherwise secure the equipment to protect from damage, Metricom is allowed to install any type of temporary facility necessary to keep its Communications Equipment operational. Lessor will conduct any maintenance as diligently and expeditiously as possible. However, Landlord will not be responsible, provided notification is given as required herein, for system outages of up to thirty (30) days resulting from Landlord's need for unusually extensive maintenance and any inability of Landlord to accommodate a relocation of Tenant's antennas to keep them operational. In the event that a mutually agreeable location is not available or the operation of the Communication Equipment is interrupted for thirty (30) days or more, all rental payments shall be abated until such time that Metricom is able to resume operation of its Communication Equipment. 11. TERMINATION PRIOR TO EXPIRATION. This Lease may be terminated by eitl1er party upon forty-five (45) days' prior written notice to the other party upon a default of any material covenant or term hereof by the other party which is not cured within forty-five (45) days of receipt of written notice of default; or, if such default is not curable within forty-five (45) days, if the defaulting party fails to commence such cure within forty-five (45) days or fails thereafter diligently to prosecute such cure to completion; provided that the grace period for any monetary default shall be ten (10) days from receipt of notice. This Lease may also be terminated by Metricom on at least forty-five (45) days' prior written notice to Lessor if (i) Metricom is unable to obtain any requisite permit or authorization or any such permit or authorization is subsequently revoked or not renewed; (ii) any physical equipment or electronic emissions materially interfere with the operation of the Communication Equipment; or (iii) Metricom determines, based on technological or other developments, that it will be unable to utilize the Premises for their intended purposes. 12. NOTICES. Any notice or demand required to be given herein shall be made by certified or registered mail, postage paid, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below and shall be deemed given three (3) days after deposit in the mail as just described or on the date delivery is first attempted in the case of overnight courier, as follows: 2 ROWFonuDacs\ WAPI WAP Master 12-7-99.dac METRIC OM, INC. Attn: Nehvork Real Es ta te 980 University Avenue Los Gatos, CA 95032 CrTY OF NORTH RICHLAND HILLS Atbl: Mr. Terry Kinzie 7301 N .E. Loop 820 North Richland Hills, TX, 76180 Telephone: 817-427-6239 Either party may change its address by giving the other notice of a new address in accordance with the terms of this § 12. All payments to Lessor required hereunder shall be sent to the address specified for Lessor above. 13. ApPLICABLE LAW. This Lease shall in all respects be governed by the laws of the State of Texas without regard to its conflicts of law principles. 14. TITLE AND QUIET ENJOYMENT. Lessor represents and agrees (a) that Lessor is the owner in fee of the Property and Premises or that Lessor holds a leasehold estate in the same under which Lessor has the right to enter into this Lease of the Premises for their intended purposes hereunder; (b) that the person signing this Lease has the authority to execute it on behalf of Lessor; and (c) that Metricom shall have access to and quiet enjoyment of the Property and Premises at all times throughout the initial Term of this Lease and any Renewal Term, so long as Metricom is not in default beyond the expiration of any applicable cure period; and (d) that Lessor will not have unsupervised access to Meb'icom's communications facility in the Premises. 15. SHORT-FoRM MEMORANDUM. Upon Metricom's request, Lessor agrees to execute a Memorandum of Lease, in the form attached hereto as Exhibit "c" and incorporated herein by reference and acknowledges that Metricom may record such Memorandum of Lease in the official records of the county where the Building is located. In the event the Building is encumbered by a mortgage or deed of trust, Lessor agrees to assist Metricom, at no cost to Lessor, in obtaining a nondisturbance and attornment agreement in favor of Metricom for each such mortgage or deed of trust. If a Memorandum of Lease is in fact recorded, upon termination of this Lease, Metricom agrees to execute and record a quitclaim deed or such other document as may reasonably be required by Lessor or a title company to evidence the termination of Metricom's rights in the Premises. 16. SEVERABILITY. If anyone or more of the provisions of this Lease shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Lease and shall in no way affect the validity of the remaining provisions of this Lease. No waiver by any party hereto of a breach of any provision of this Agreement shall constitute a waiver of any preceding or succeeding breach of the same or any other provision hereof. 17. LEGAL FEES. If any party commences legal proceedings for any relief against the other party arising out of or to interpret this Lease, the losing party shall pay the prevailing party's legal costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs as determined by the court. As used herein, " legal proceedings" includes any arbitration proceedings to which the parties may submit. 18. COUNTERPARTS; FACSIMILE SIGNATURES. This Lease may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A copy of this Lease bearing the signature of a party which is transmitted by facsimile shall have the same legal effect as the personal delivery of a copy of this Lease bearing an original signature. 19. ENTIRE AGREEMENT; AMENDMENTS. This Lease, together with the Exhibits attached hereto, constitutes the entire understanding and agreement of the parties with respect to its subject matter; and there are no representations, promises or agreements between the parties except those found in this agreement; and any and all prior agreements, understandings or representations with respect to its subject matter, whether written or oral, are hereby canceled in their entirety and are of no further force or effect. Any amendments to this Lease must be in writing and executed and delivered by both parties. 20. STRUCTURAL ANALYSIS. Prior to the installation of Metricom's Communication Equipment, Metricom shall conduct an engineering study to determine whether Lessor's Tower is structurally sound to support Metricom's 3 ROWFOrlllDocs I WAPI WAP Master -¡ 2-7-99.doc equipment and whether the drilling of any holes into or through the tower will cause any damage to the structural integrity of the Tower. Lessor will be provided with a certified letter from a licensed professional engineer indicating the results of the study. 21. CITY ORDINANCES. Metricom agrees to abide by and conform to the City of North Richland Hills Comprehensive Zoning Ordinances, as it pertains to this project, paying special attention to Article 7, sections 740 and 745. Lessor: City of North Richland Hills a Municipality Taxpayer lD No.: [Taxpayer lD No.] METRICOM, INC., a Delaware corporation By: By: [name hJped or printed] [name typed or printed] Its: Its: Date: ,2000 Date: ,2000 4 ROWForlllDocs\ WAP\ WAP Master 12-7-99.doc [EXHIB IT A] [DESCRIPTION OF PROPERTY] This exhibit is attached to and incorporated into that certain Lease dated as of , 2000, by and between METRICOM, INC., a Delaware corporation, as licensee, and City of North Richland Hills a Municipality, as Lessor, and references the location and/ or legal description of the property subject to the Lease. All of that real property situate in the City of North Richland Hills County of Tarrant State of Texas described as follows: Tract 1C3, S. Richardson Survey, Abstract 1266 (0,25 acres) Tract 1828, J. Condra Survey, Abstract 310 (0.40 acres) Lessor's Initials Metricom's Initials [EXHIBIT B] [LOCATION OF PREMISES AND EQUIPMENT] This exhibit is attached to and incorporated into that certain Lease dated as of , 2000, by and between METRICOM, INC., a Delaware corporation, as lessee, and City of North Richland Hills, a Municipality, as Lessor, and references the location of the Premises and Communication Equipment within the Property to be utilized by Metricom pursuant to the Lease. Lessor's Access Contacts: During Business I-lours: After Business Hours: Name: Name: Phone: Phone: Cell/PCS: Cell/PCS: Pager: Pager: Metricom may replace the attached drawings of the location of the Premises and Communication Equipment with construction drawings depicting same. Such replacement drawings shall be deemed a part of this Lease and be binding on Metricom and Lessor. Lessor's Initials Metricom's Initials Recording Requested by: METRICOM, INC. 980 University Avenue Los Gatos, CA 95032 When Recorded Mail to: METRICOM, INC. Attn: Network Real Estate 980 University A venue Los Gatos, CA 95032 (space above this lilzc for Recorder's llse only) Memorandum of Lease I-IIS MEMORANDUM OF LEASE is entered into as of North Richland Hills a Municipality with an office at 7301 N.E. T Texas_76180 ("Lessor") and METRICOM, INC., a Delaware 980 University Avenue, Los Gatos, California ("Lessee"). , by and between City of Loop 820 North Richland I-Iills, corporation with an office at AGREEMENT 1 LEASE OF PREMISES. For the purpose of installing, operating, and maintaining a communication facility and other improvements, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, certain premises more particularly described in, and on the terms and conditions more particularly set forth in, that certain Communication Facility Lease dated , 2000 (the "Lease") by and between Lessor and Lessee, which terms and conditions are hereby incorporated by reference. 2 The subject property affected by the recordation of this Memorandum of Lease is described in Attachment U AU attached hereto and incorporated herein by reference, The portion of the property being leased to Lessee pursuant to this Memorandum of Lease and the Lease is referred to as the "Premises" in the Lease and is described in Attachment "B" attached hereto and incorporated herein by reference. IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first above written. Lessor: ,a By: [/lallle typed] Its: Metrico11l: METRICOM, INC., a Delaware corporation By: [name hJpedJ Its: ACKNO~EDGEMENTS STATE OF ss. COUNTY OF On before me, Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. (SEAL) Notary Public My commission expires: ----------------------------------------------------------- ----------------------------------------------------------- STATE OF ss. COUNTY OF On before me, Notary Public, personally appeared .J personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. (SEAL) Notary Public My commission expires: ATTACHMENT A This attachment is attached to that certain Memorandum of Lease dated as of , by and between METRICOM, INC., as Lessee, and the City of North Richland I--!ills, as Lessor, and references all of that certain real property situated in the City of _North Richland Hills, County of Tarrant State of _Texas, described as follows: A IT ACHMENT B This attachment is attached to that certain Memorandum of Lease dated as of , by and between METRICOM, INC., as Lessee, and City of North Richland Hills, as Lessor, and references the location of the Premises and Communication Equipment licensed to be installed and maintained under the Memorandum of Lease and the Lease: