HomeMy WebLinkAboutResolution 1999-027
RESOLUTION NO. 99-27
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
Lease Agreement with AT&T Wireless for the purpose of requesting placement of
cellular antennae's atop the water tower, located at Rufe Snow and Glenview.
PASSED AND APPROVED this 26th day of April, 1999
APPROVED:
(ii, j ,,)
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Charles Scoma-¥èyor
ATTEST:
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Patricia Hutson - City Secretary
APPROVED AS TO FORM AND LEGALITY:
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Rex McEntire - Attorney for the City
2.
PERMITTED USE.
Tenant may use the Premises for the following: (i) transmission and
reception of communications signals and (ii) to construct, install, operate, maintain, repair, replace, protect and secure
its communication fixtures and related equipment, cables, accessories and improvements (collectively the
"Communication Facility"); and (iii) any activities related to the foregoing. Tenant is entitled to install on the structure
up to thirteen (13) antennas, and any other accessories appropriate to the successful and secure operation of the
Communication Facility. The location of the Premises including the location of the Antennas are substantially described
herein on Exhibit 1. Landlord and Tenant agree that Exhibit 1 shows the initial installation of Tenant and that it does not
limit Tenant's rights under this paragraph. Landlord's execution of this Agreement will signify Landlord's approval of
Exhibit 1. Tenant has the right to (i) instan and operate transmission cables from the equipment to the antennas, electric
lines from the main feed to the equipment, and communication lines from the main entry point to the equipment; and (ii)
erect, construct or make Property improvements, alterations or additions ("Tenant Changes") appropriate for Tenant's
use. Tenant's Changes, if permitted by law, may include enclosing or sheltering equipment, capping or modifying any
sprinkler system in the equipment space, adding HV AC, and storing sealed batteries in the equipment room/cabinet, on
the structure, or at another location mutuany agreed upon by the parties.
3.
INST ALLA TIONS.
Tenant agrees to comply, with an applicable governmental laws, rules,
statutes and regulations, relating to its use of the Communication Facility on the Property. Tenant has the right to
modify, supplement, replace, upgrade, expand the equipment, increase the number of antennas or relocate the
Communication Facility within the Premises at any time during the term of this Agreement. Tenant will be an owed to
make such alterations to the Property in order to accomplish Tenant's Changes or to insure that Tenant's Communication
Facility complies with an applicable federal, state or local laws, rules or regulations.
4.
TERM.
(a) In the event Tenant exercises the Option, the initial lease term will be
five (5) years ("Initial Term"), commencing upon the Commencement Date, as defined below. The Initial Term will
terminate on the last day of the month in which the fifth annual anniversary of the Commencement Date occurred.
(b) This Agreement will renew for three (3) additional five (5) year Term(s) (the "Extension Term"),
upon the same terms and conditions, by Tenant notifying Landlord in writing of Tenant's intention to renew this
Agreement at least ninety (90) days prior to the expiration of the existing Term.
(c) If Tenant remains'in possession of the Premises after the termination or expiration of this
Agreement then Tenant will be deemed to be occupying the Premises on a month to month basis (the "Holdover Term"),
subject to the terms and conditions of this Agreement, and at the same monthly rate.
(d) The Initial Term, and the Extension Term and the Holdover Term are collectively referred to as
the Term. ("Term").
5.
RENT.
(a) Commencing on the date that Tenant commences construction
(the "Commencement Date"), Tenant win pay the Landlord a yearly rental payment of $12,000.00, plus any applicable
tax, to Landlord, at the address set forth above, on or before the 1st day of each lease year in advance or to such other
person, firm, or place as Landlord may, from time to time, designate in writing at least thirty (30) days in advance of
any due date. Rent win be prorated for any partial year.
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(b) Beginning with year two (2) of the initial term, and each year thereafter, including throughout any
option terms exercised, the yearly rent will be increased by three percent (3 %) over the previous year's rent.
6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as
follows:
(a) by either party on thirty (30) days prior written notice, if the other party remains in default under
Paragraph 15 of this Agreement after the applicable cure periods;
(b) by Tenant on sixty (60) days prior written notice, if Tenant is unable to obtain, maintain, or
otherwise forfeits or cancels any required approval(s) or the issuance of a license or permit by any agency, board, court
or other governmental authority necessary for the construction or operation of the Communication Facility as now and
hereafter intended by Tenant; or if the Premises become unsuitable for Tenant's operation due to governmental
regulations; or if Tenant determines in its sole discretion that the cost of obtaining or retaining the same is commercially
unreasonable;
(c) by Tenant on sixty (60) days prior written notice, if Tenant determines in its sole discretion that
Tenant's use of the Premises (as the same may have been modified from time to time) is no longer consistent with the
optimal operation of Tenant's communications network based up0J? either technical or economic considerations in
Tenant's sole discretion;
(d) by Tenant on sixty (60) days prior written notice, if Tenant determines that interference by or to
Tenant's use of the Premises cannot be resolved to Tenant's satisfaction;
(e) by Tenant immediately upon notice, if destruction or damage to the Premises or the taking thereof
(by partial condemnation or otherwise) is sufficient, in Tenant's reasonable judgment, to adversely affect Tenant's use of
the Premises; or
(f) by Tenant immediately upon notice, if Tenant determines, in its sole discretion, due to the title
results, survey results or Tests, that the condition of the Premises is unsatisfactory or Tenant believes that the leasing or
continued leasing of the Premises would expose Tenant to undue risks of government action or intervention or third-party
liability.
If this Agreement is terminated for any reason outlined in this paragraph, any prepaid rent will be refunded on a
pro rata basis.
7. INSURANCE. (a) Tenant will carry during the Tenn, at its own cost and expense, the
following insurance: (i) " All Risk" property insurance for its property's replacement cost; (ii) commercial general liability
insurance with a minimum limit of liability of $1 ,000,000 combined single limit for bodily injury or death/property damage
arising out of any one occurrence; and (iii) Workers' Compensation Insurance as required by law.
(b) Tenant will name the Landlord as an additional insured under its commercial general liability policy.
Tenant will require its insurance company to give at least thirty (30) days prior written notice of tennination or cancellation
of the policy to the additional insured, except for termination or cancellation for non-payment of premium, which notice
will be ten (10) days.
(c) Notwithstanding anything in this Agreement, with respect to all loss, damage, or destruction to the
insured party's property (including rental value and business interruption) occurring during the term of this Agreement,
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Landlord and Tenant hereby releases and waives all claims (except for willful misconduct and negligence) against the other
party, and against each of the other party's employees, agents, officers, and directors. Landlord and Tenant will make a
reasonable effort to include in their property insurance policy or policies a waiver of subrogation provision whereby any
such release does not adversely affect such policies or prejudice any right of the insured party to recover thereunder.
8. INTERFERENCE. (a) Where there are existing radio frequency user(s) on the Landlord's
property, the Landlord will provide Tenant with a list of all existing radio frequency user(s) (and their frequencies) on
the Property to allow Tenant to evaluate the potential for interference. Tenant warrants that its use of the Premises will
not interfere with existing radio frequency user(s) on the Premises as long as the existing radio frequency user(s) operate
and continue to operate within their frequencies, and in accordance with all applicable laws and regulations.
(b) Landlord will not grant, after the date of this Agreement, a lease, license or any other right to any
third party for use of the Property, if such use may in any way adversely affect or interfere with Tenant's
Communication Facility. Landlord will notify Tenant and receive Tenant's written approval prior to granting any third
party the right to install and operate communications equipment on the Property, such approval not to be unreasonably
withheld. Nothing contained herein will restrict Tenant nor its successors and assigns from installing and modifying
its/their communication equipment.
(c) Landlord will not use, nor will Landlord permit its employees, tenants, licensees, invitees or agents
to use, any portion of the Property or any of Landlord's other properties in any way which interferes with the operations
of Tenant or the rights of Tenant under this Agreement. Landlord will cause such interference to cease upon not more
than twenty-four (24) hour notice from Tenant. In the event any such interference does not cease within the
aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant
will have the right, in addition to any other rights that it may have at law or in equity, for Landlord's breach of this
Agreement, to elect to enjoin such interference or to terminate the Agreement upon notice to Landlord.
9. INDEMNIFICATION. (a) Tenant agrees to indemnify, defend and hold Landlord harmless from
and against any direct injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses
(including reasonable attorneys' fees and court costs) resulting from the installation, use, maintenance, repair or removal
of the Communication Facility or the breach of any provision of this Agreement, except to the extent attributable to the
negligent or intentional act or omission of Landlord, its employees, agents or independent contractors.
(b) Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and all direct
lllJUry, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable
attorneys' fees and court costs) arising from the actions or failure to act of Landlord or its employees or agents, or the
breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission
of Tenant, its employees, agents or independent contractors.
10. WARRANTIES. (a) Tenant and Landlord each acknowledge and represent that it is
duly organized, validly existing and in good standing and has all rights, power and authority to enter into this Agreement
and bind itself hereto through the party set forth as signatory for the party below.
(b) Landlord represents and warrants that: (i) Landlord solely owns the Property as a legal lot in fee
simple, or controls the Property by lease or license, unencumbered by any liens, restrictions, mortgages, covenants,
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conditions, easements, leases, agreements of record or not of record, which would adversely affect Tenant's use and
enjoyment of the Premises under this Agreement; (ii) as long as Tenant is not in default then Landlord grants to Tenant
sole, actual, quiet and peaceful use, enjoyment and possession of the Premises; (iii) its execution and performance of this
Agreement will not violate any Laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement
binding on the Landlord; and (iv) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or
other security interest, Landlord will use best efforts to provide to Tenant a Subordination, Non-Disturbance and
Attornment Agreement in the form of Exhibit 2..
11. ENVIRONMENTAL. (a) Landlord represents, warrants and agrees that: (i) the Property and its
uses and operations complies, and will comply, with all local, state and federal statutes or regulations, or ordinances
pertaining to the environment or natural resources ("Environmental Laws"); (ii) the Property has not been used or
allowed to be used by Landlord or, to the best of Landlord's knowledge, by any previous owner, to emit through ground,
water or air, refine, manufacture, generate, produce, store, contain, handle, transfer, process, treat, transport, or dispose
of hazardous substances or hazardous wastes, products or pollutants, including without limitation asbestos, oil, petroleum
products and their by-products, (collectively called "Hazardous Substance") as defined and regulated under any
Environmental Laws; (iii) the Property has never been the subject of. any federal or state Hazardous Substance related
list; (iv) the Property has never required closure or clean-up of Hazardous Substance; and (v) no asbestos,
Polychlorinated Biphenyls or other Hazardous Substance or underground or above ground storage tanks exist or have
existed or will exist on the Property. Landlord warrants and represents that it will be solely liable for the clean-up and
removal of Hazardous Substance and any related activities, including but not limited to the restoration of the Property
related to Hazardous Substances now and in the future existing on the Property except to the extent generated by Tenant.
Landlord will defend, indemnify and hold Tenant harmless from and against any and all direct liabilities, damages,
losses, costs, assessments, penalties, fines, expenses and fees, including reasonable legal fees, consultant fees and expert
witness fees, related to Landlord's breach of any of the above representations and warranties.
(b) Tenant represents, warrants and agrees to conduct its activities on the Premises in compliance with
all applicable Environmental Laws. Tenant will not use, generate, release, manutàcture, refine, produce, store, or dispose
of any Hazardous Substance on, under, or about the Premises, except for the use of sealed batteries for emergency back-up,
any fire suppression system and small quãntities of cleaning products ordinarily used by commercial businesses. Tenant
agrees to defend, indemnify and hold Landlord harmless from and against any and all direct liabilities, damages, losses,
costs, assessments, penalties, fines, expenses and fees, including reasonable legal fees, that Landlord may suffer due to
the existence or discovery of Hazardous Substance on the Property, or released into the environment that are directly
caused by Tenant's use of the Premises.
(c) The indemnifications of this Paragraph specifically include reasonable costs, expenses and fees
incurred in connection with any investigation of Property conditions or any clean-up, remedial, removal or restoration
work required by any governmental authority. The provisions of this Paragraph will survive the expiration or
termination of this Agreement.
12. ACCESS. Landlord will be permitted access to the Premises: (i) for emergencies
without prior notice to Tenant, so long as Tenant is notified as soon thereafter as reasonably practicable; and (ii) with
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reasonable prior notice to Tenant to make necessary repairs; in all cases provided that Tenant's equipment, technology
and proprietary interests remain secure and the Communication Facility's operation is not adversely affected. Tenant
will provide keys or access codes to Landlord for any locking mechanism.
At all times throughout the term of this Agreement, and at no additional charge to Tenant, Landlord will
provide, as further set forth in Exhibit 1, Tenant and its employees, agents, and subcontractors, with twenty-four hour,
seven day access to and over the Property, from an open and improved public road to the Premises, for the installation,
maintenance and operation of the Communication Facility and any utilities serving the Premises. Upon Tenant's request,
Landlord will execute an easement evidencing this right. In the event any public utility is unable to use the access or
easement provided to Tenant then the Landlord hereby agrees to grant an additional access or easement either to Tenant
or to the public utility, for the benefit of Tenant, at no cost to Tenant.
13. REMOV AL/RESTORATION. An portions of the Communication Facility brought onto
the Property by Tenant will be and remain Tenant's personal property and, at Tenant's option, may be removed by
Tenant at any time during the Term. Landlord covenants and agrees that no part of the Communication Facility
constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of,
the Property, it being the specific intention of the Landlord that all improvements of every kind and nature constructed,
erected or placed by Tenant on the Premises will be and remain the property of the Tenant and may be removed by
Tenant at any time during the Term. Within one hundred twenty (120) days of the termination of this Agreement, Tenant
will remove all such improvements. Footings, foundations, and concrete will be removed to a depth of one foot below
grade. Tenant wilJ, to the extent reasonable, restore the Premises to its condition at the commencement of the
Agreement, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted. Tenant
win not be responsible for the replacement of any trees, shrubs, or other vegetation, nor will Tenant be required to
remove from the Premises or the Property any underground utilities.
14. MAINTENANCE; UTILITIES. (a) Tenant will, at Tenant's expense, keep and maintain the
Premises in good condition, reasonable wear and tear and damage from the elements excepted. Landlord will maintain
and repair the Property and access thereto, in good and tenantable condition, subject to reasonable wear and tear and
damage from the elements.
(b) Tenant will be solely responsible for and promptly pay all utilities charges for electricity, telephone
service or any other utility used or consumed by Tenant on the Premises. Landlord will fully cooperate with any utility
company requesting an easement over, under and across the Property in order for the utility company to provide service
to the Tenant. During any application period the Tenant will have the right to temporarily use Landlord's electricity and
will pay the Landlord the current local utility rate for electric consumed by Tenant. In the event Tenant carmot secure
its own metered electrical supply, Tenant will have the right, at its own cost and expense, to submeter from the
Landlord. Tenant will pay on a monthly basis the current local utility company rate for submetered electric, after the
meter is read by the Landlord and bined to Tenant. Landlord will not be responsible for interference with, interruption
of or failure, beyond the reasonable control of Landlord, of such services to be furnished or supplied by Landlord.
(c) The Landlord reserves the right to perform maintenance on and make modifications to the water
tank, both stn/ctural and cosmetic (paint), at whatever intervals may be required to assure the integrity and longevity of
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the facility, provided Landlord makes best efforts to provide Tenant with sufficient notification of the intended work and
the opportunity to temporarily relocate and continue to operate its antennas, or otherwise to secure the antennas or the
Communication Facility generally, to protect them from damage. Tenant will be permitted to install any type of
temporary facility necessary to keep its Communication Facility operational. Further, any maintenance will be conducted
by Landlord as diligently and expeditiously as possible. However, Landlord will not be responsible 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.
15. DEFAULT AND RIGHT TO CURE. (a) The following will be deemed a default by Tenant and
a breach of this Agreement: (i) non-payment of Rent if such rent remains unpaid for more than thirty (30) days after
receipt of written notice of such failure to pay from Landlord; or (ii) Tenant's failure to perform any other term or
condition under this Agreement within forty-five (45) days after receipt of written notice from Landlord specifying the
failure. No such failure, however, will be deemed to exist if Tenant has commenced to cure such default within such
period and provided that such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default
will be excused if due to causes beyond the reasonable control of Tenant.
(b) The following will be deemed a default by Landlord and a breach of this Agreement. Landlord's
failure to perform any term or condition under this Agreement within forty-tive (45) days after receipt of written notice
from Tenant specifying the failure. No such failure, however, will be deemed to exist if Landlord has commenced to
cure the default within such period and provided such efforts are prosecuted to completion with reasonable diligence.
Delay in curing a default will be excused if due to causes beyond the reasonable control of Landlord.
16. ASSIGNMENT/SUBLEASE/COLLOCATION. (a) Landlord may assign this Agreement
provided said assignee will assume, recognize and also become responsible to Tenant for, the performance of all of the
terms and conditions to be performed by Landlord under this Agreement.
(b) Tenant, with Landlord approval, may assign all or any part of this Agreement, and all or any
rights, benefits, liabilities and obligations hereunder, to (i) any person or business entity which is a parent, subsidiary or
affiliate of Tenant; (ii) any person or business entity that controls or is controlled by or under common control with
Tenant; (iii) any person or business entity that is merged or consolidated with Tenant or purchases a majority or
controlling interest in the ownership or a~sets of Tenant; or (iv) any person or business entity which is licensed by the
FCC to operate a wireless communications business. Tenant must submit a written request to Landlord to assign any
part of this Agreement sixty (60) days prior to the tentative effective date of the assignment. Landlord retains sole
authority to approve or deny such request. Upon Landlord approval of any such action, Tenant will be relieved of all
future performance, liabilities and obligations under this Agreement to the extent of such assignment or sublease. Tenant
may not otherwise assign this Agreement without Landlord's consent.
(c) Landlord has the exclusive right to add other tenants for the purpose of like communications,
subject to the conditions contained in Section 8 herein.
17. NOTICES. All notices, requests, demands and communications hereunder will be given
by tïrst class certitïed or registered mail, return receipt requested, or by a recognized overnight courier, postage prepaid,
to be effective when properly sent and received, refused or returned undelivered. Notice will be addressed to the parties
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at the addresses set forth above (as to Tenant, Attn.: System Development Manager; with a copy to AT&T Wireless
Services, 4544 South Lamar, Suite 600, Austin, Texas 78745-1500, Attn.: Property Manager, and also to AT&T
Wireless Services, 10000 Goethe Road, First Floor, Sacramento, CA 95827, Attn: Senior General Counsel). Either
party hereto may change the place for the giving of notice to it by written notice to the other as provided herein.
18. SEVERABILITY, If any term or condition of this Agreement is found unenforceable, the
remaining terms and conditions will remain binding upon the parties as though said unenforceable provision were not
contained herein. However, if the invalid, illegal or unenforceable provision materially affects this Agreement then the
Agreement may be terminated by either party on ten (10) days prior written notice to the other party hereto.
19. TAXES. Tenant will pay all personal property taxes assessed on, or any portion of
such taxes attributable to, the Communication Facility. Tenant, upon presentation of sufficient and proper
documentation, will pay, within thirty (30) days, any increase in real property taxes levied against the Property
(excluding any additional taxes that relate to the period prior to the Commencement Date, Le., rollback taxes) which is
directly attributable to Tenant's use of the Property, provided Tenant will be entitled to appeal any such increase payable
by it. Landlord agrees that it will cooperate with an appeal of such taxes and will promptly pay when due all real estate
taxes levied against the Property.
20. CONDEl\'INATION. In the event Landlord receives notification of any condemnation proceedings
affecting the Property, Landlord will provide notice of the proceeding to Tenant within forty-eight (48) hours. If a
condemning authority takes all of the Property, or a portion sufficient, in Tenant's sole determination, to render the
Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the condemning authority.
The parties will be entitled to share in the condemnation proceeds in proportion to the values of their respective interests
in the Property, which for Tenant will include, where applicable, the value of its Communication Facility, moving
expenses, prepaid rent, and business dislocation expenses. Tenant will be entitled to reimbursement for any prepaid
Rent.
21. CASUALTY. Landlord will provide notice to Tenant of any casualty affecting the Property
within forty-eight hours of the casualty. If any part of the Communication Facility or Property is damaged by fire, Acts
of God, vandalism, malicious mischief or other casualty so as to render the Premises unsuitable, in Tenant's sole
determination, then Tenant may terminate this Agreement by providing written notice to the Landlord, which
termination will be effective as of the date of such damage or destruction. Upon such termination, Tenant will be
entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed for any prepaid Rent.
Tenant is solely responsiblefor any damage caused to Tenant's property due to fire, Acts of God, vandalism, malicious
mischief or other peril.
22. BROKER FEES. Tenant and Landlord each acknowledges and represents to the other that no
broker or other person was used by it in connection with this transaction. If any claims, actions or proceedings are
brought against either party (" Indemnitee") by reason of any broker, finder or other person claiming to have dealt with
the other party (" Indemnitor") in connection with this transaction and/or the Premises, then the Indemnitor hereby agrees
to indemnify, hold harmless and defend the Indemnitee from and against all liabilities arising from such claims, and all
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reasonable costs and expenses incurred in connection therewith (including, without limitation, reasonable legal fees and
disbursements). The provisions of this Article will survive the termination of this Agreement.
23. WAIVER OF LANDLORD'S LIENS. Landlord hereby waives any and all lien rights it may have,
statutory or otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall be
deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real or personal
property under applicable law, and Landlord hereby consents to Tenant's right to remove all or any portion of the
Communication Facility from time to time in Tenant's sole discretion and without Landlord's consent.
24. MISCELLANEOUS.
(a) Amendment; Waiver. This Agreement cannot be amended, modified or revised unless done in
writing and signed by an authorized agent of the Landlord and an authorized agent of the Tenant. No provision may be
waived except in a writing signed by both parties
(b) Short Form Lease. Either party will, at any time upon fifteen (15) days prior written notice from
the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease. Either party may record
this memorandum at any time, in its absolute discretion.
(c) Bind And Benefit. The terms and conditions contained in this Agreement will run with the
Property and inure to the benefit of the parties, their respective heirs, executors, administrators, successors and assigns.
(d) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof,
constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and agreements.
(e) Governing Law. This Agreement will be governed by the laws of the state in which the
Premises are located, without regard to conflicts of law.
(t) Interpretation. Unless otherwise specified, the following rules of construction and interpretation
apply: (i) captions are for convenience and reference only and in no way define or limit the construction of the terms
and conditions hereof; (ii) use of the term "including" will be interpreted to mean "including but not limited to"; (iii)
whenever a party's consent is required under this Agreement, except as otherwise stated in the Agreement or as same
may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral
part of the Agreement and are incorporated by reference into this Agreement; (v) use of the terms "termination" or
"expiration" are interchangeable, and (vir reference to a default will take into consideration any applicable notice, grace
and cure periods.
(g) Estoppel. Either party will, at any time upon fifteen (15) days prior written notice from the other,
execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is unmodified and
in full force and effect (or, if modified, stating the nature of such modification and certifying this Agreement, as so
modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to such party's knowledge, any uncured defaults on the part of the other party
hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises. Failure to deliver such a statement within such time will be
conclusive upon the requesting party that (i) this Agreement is in full force and effect, without modification except as
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may be properly represented by the requesting party, (ii) there are no uncured defaults in either party's performance, and
(iii) no more than one month's rent has been paid in advance.
(h) No Option.
The submission of this Agreement for examination or consideration does not
constitute a reservation of or option for the Premises. This Agreement will become effective as an Agreement only
upon the legal execution, acknowledgment and delivery hereof by Landlord and Tenant.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed this ~ day of ¥« A-\(
1999.
"LANDLORD"
City of North Richland Hills, a Texas home-rule munincipality
By:
"TENAlVf"
Metroplex Telephone Company, a Texas general partnership,
d/b/a AT&T Wireless Services
By: Dallas Cellular Telephone Company, L. P.,
its managing partner
By: By: McCaw Communications of Gainesville, TX, Inc.,
its general partner
By:
0h~'
Ben Bredow....
System Development Manager
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ST ATE OF TEXAS §
§
COUNTY OF TARRANT §
This instrument was acknowledged before me on ~ ;2'1 , 1999 by Larry J.
Cunningham, City Manager of the City of North Richland Hills, Texas home-rule munmclpahty.
PATRICt.1 ¡.JjTSOt,;
Nabr'l PUb},,' \'11 .-
M. C .. " e l t f: ;(;!~
ï OtrimIS$;on "-xow" ~ ......1
-"':':i"\"" ;
c.._~~::.~
COUNTY OF DALLAS §
/~['~*'''~,RY,';¡;~:>..
{ __;1_ DI!
\~:7.:.~..~,~.,~.~~;.:./
c:9azwvå ß;~
Notary Public
My Commission Expires: ¡:: / q9
This instrument was acknowledged before me on ~ ~ , 1999 by Ben Bredow, System
Development Manager of Metroplex Telephone Company, d/b/a AT&T Wireless Services, a Texas general partnership
whose managing partner is Dallas Cellular Telephone Company, whose general partner is McCaw Communications of
Gainesville, TX, Inc.
~
Notary Public J
My Commission Expires: I Ju-t' ~ ¿;
( ~
I, ",.,o,.~,1.: MICHAEL E &8CCOAIfCK
,; '* ,* NOT AAY PUBLIC
.. '. ;.~ State of Texas
.:';...1f Comm. Exp. 01-22-2003
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EXHIBIT 1
To the Option and Lease Agreement dated MA- Ý lRff..
, 1999, between City of North Rich1and Hills, a Texas home·rule munincipality, as
Landlord, and Mctroplex Telephone Company, a Texas general partnership, d/b/a AT&T Wireless Services, as Tenant.
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Option Structure
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AT&T WIRELESS SERVICES
SITE 11014
4-14-99
EXHIBIT 2
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT ("Agreement), dated as of the date below, between having
its principal office/residing at (hereinafter called "Mortgagee") and
a having its principal office/residing at
("Landlord"), and METROPLEX TELEPHONE COMPANY d/b/a AT&T
WIRELESS SERVICES, a Texas general partnership, having an office at 17300 N. Dallas Parkway, Suite 1000, Dallas,
Texas 75248 (hereinafter called "Tenant").
WITNESSETH:
WHEREAS, Tenant has entered into a certain lease dated , 1999, (the "Lease") with
Landlord, covering property more fully described in Exhibit I attached hereto and made a part hereof (the "Premises");
and
WHEREAS, Landlord has given to Mortgagee a mortgage (the "Mortgage") upon property having a street
address of 4031 Rufe Snow Drive, in the City of North Richland Hills, Tarrant County, State of Texas ("Property"), a part
of which Property contains the Premises;
WHEREAS, the Mortgage on the property is in the original principal sum of
($ Dollars, which Mortgage has been recorded in the appropriate public office In and for
County, ("Mortgage"); and
WHEREAS, Tenant desires to be assured of continued occupancy of the Premises under the terms of the Lease
and subject to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein contained, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree
as follows:
1. So long as this Agreement will remain in full force and effect, the Lease is and will be subject and
subordinate to the lien and effect of the Mortgage insofar as it affects the real property and fixtures of which the Premises
forms a part (but not Tenant's trade fixtures and other personal property), and to all renewals, modifications, consolidations,
replacements and extensions thereof, to the full extent of the principal sum secured thereby and interest thereon, with the
same force and effect as if the Mortgage had been executed, delivered, and duly recorded among the above-mentioned
public records, prior to the execution and delivery of the Lease.
2. In the event Mortgagee takes possession of the Premises as mortgagee-in-possession, including but not
limited to by deed in lieu of foreclosure or foreclosure of the Mortgage, Mortgagee agrees not to affect or disturb Tenant's
13
\2111/198
Option Structure
right to possession of the Premises and any of Tenant's other rights under the Lease in the exercise of Mortgagee's rights so
long as Tenant is not then in default, after applicable notice and/or grace periods, under any of the terms, covenants, or
conditions of the Lease.
3, In the event that Mortgagee succeeds to the interest of Landlord or other landlord under the Lease and/or
to title to the Premises, Mortgagee and Tenant hereby agree to be bound to one another under all of the terms, covenants
and conditions of the Lease; accordingly, from and after such event, Mortgagee and Tenant will have the same remedies
against one another for the breach of an agreement contained in the Lease as Tenant and Landlord had before Mortgagee
succeeded to the interest of Landlord; provided, however, that Mortgagee will not be:
(a) personally liable for any act or omission of any prior landlord (including
Landlord); or
(b) bound by any rent or additional rent which Tenant might have paid for more
than the one month in advance to any prior landlord (including Landlord).
4. In the event that anyone else acquires title to or the right to possession of the Premises upon the
foreclosure of the Mortgage, or upon the sale of the Premises by Mortgagee or its successors or assigns after foreclosure or
acquisition of title in lieu thereof or otherwise, Tenant agrees not to seek to terminate the Lease by reason thereof, but will
remain bound unto the new owner so long as the new owner is bound to Tenant (subject to paragraph 3 above) under all of
the terms, covenants and conditions of the Lease.
5. Mortgagee understands, acknowledges and agrees that notwithstanding anything to the contrary
contained in the Mortgage and/or any related financing documents, including, without limitation, any UCC- I financing
statements, Mortgagee will acquire no interest in any furniture, equipment and/or other property installed by Tenant on the
Property, Mortgagee hereby expressly waives any interest which Mortgagee may have or acquire with respect to such
furniture, equipment and/or other property of Tenant now, or hereafter, located on or affixed to the Property or any portion
thereof and Mortgagee hereby agrees that same do not constitute realty regardless of the manner in which same are
attached or affixed to the Property.
6. This Agreement will be binding upon and will extend to and benefit the successors and assigns of the
parties hereto and to any assignees or subtenants of Tenant which are permitted under the Lease. The term "Mortgagee",
when used in this Agreement will be deemed to include any person or entity which acquires title to or the right to
possession of the Premises by, through or under Mortgagee and/or the Mortgage, whether directly or indirectly.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed this _ day of
WITNESS/ATTEST:
Landlord:
a
[SEAL]
BY:
Name:
Title:
WITNESS:
Tenant:
14
12/1l1/98
Option Structure
BY:
Name:
Title:
A TTEST OR WITNESS:
MORTGAGEE:
BY:
Name:
Title:
[SEAL]
15
12/11//98
Option Structure
MEMORANDUM OF LEASE BElWEEN
THE CITY OF NORTH RICH LAND HILLS, a Texas home-rule munincipality AND
METROPLEX TELEPHONE COMPANY. a Texas genenal partnenbip, d/b/a AT&T WIRELESS SERVICES
This Memorandum of Lease ("Memorandum") is entered into by and between the CITY OF NORTH
RICHLAND HILLS, a Texas home-rule munincipality ("Landlord") and METROPLEX TELEPHONE COMPANY, a
Texas general partnership, d/b/a AT&T Wireless Services ("Tenant") and was made regarding the Property described on
Exhibit A.
A. Landlord and Tenant have entered into a certain Option to Lease and Site Lease Agreement ("ODtion to
Lease") pursuant to which Landlord granted Tenant an option to lease ("Option") fTom Landlord certain real property
("Premises") located in the County of Tarrant, State of Texas, which is more particularly described in Exhibit B attached
hereto and incorporated herein by this reference.
B Tenant has exercised the Option and Tenant and Landlord now desire to execute this Memorandum to
provide constructive knowledge of Tenant's lease of the Premises.
NOW THEREFORE, in consideration of the foregoing, the parties agree as follows:
I. Lease of Premises. Bft0rd leases to Te~t and Tenant leases fTom Landlord, the Premises for a term
of five 7>tLears, commencing on the day of :JVt/E. , 1999 ("Commencement Date") and terminating
on the day of ::J";,.J(C , 2004, upon the terms and conditions set forth in the Option to Lease. Tenant
shall have the right to renew this lease for three (3) additional 5-year terms.
2. Provisions Bindin ! on Landlord. The Lease shall be binding upon and inure to the benefit of the parties
and their respective heirs, successors and assigns, subject to the provisions of the Lease.
3 Govemio ! Law. This Memorandum and the Lease are governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have respectively executed this Memorandum this _ day of
,1999,
"LANDLORD"
, '
. '
By:
\
~~
"TENANT"
Metroplex Telephone Company, a Texas general partnership,
d/b/a AT&T Wireless Services
By: Dallas Cellular Telephone Company, L. P.,
its managing partner
By: McCaw Communications of Gainesville, TX, Inc.,
its general partner
By:
Ben Bredow
System Development Manager
Option Land
1112/98
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on , 1999 by Ben Bredow, System
Development Manager of Metroplex Telephone Company, a Texas general partnerslùp, d/b/a AT&T Wireless Services,
whose managing partner is Dallas Cellular Telephone Company, whose general partner is McCaw Communications of
Gainesville, TX, Inc.
Notary Public
My Commission Expires:
ST ATE OF TEXAS ~
~
COUNTY OF TARRANT t
This instrument was acknowledged before me on J ~ 3 ()
City Manager of the City of North RichIand Hills, a Texas home-rule munincipality.
, 1999 by Larry 1. Cunningham,
\""·'1
~'~'..~:'~~~:-" ALICIA RICHARDSON
ª ~ (....<Ìè-,;~ § Notary Public. State of Te.xas
~"'," ~ :.:: My Commission Expires 10 19-02
.. "1 ~ ...... I
"'II!"I"'~""'"
¿;U.Ã;.J ~t-l, ~ý A~
I()"~ IDa
Notary Public
My Commission Expires:
Option Uind
2
1112/98
EXHmIT A
To the Memorandwn ofLcase dated ,1999, between the City of North RJch!and Hills, a Teus homc;-u e munincipality, as Landlord, and
Metroplex Telephone Company. a Texas general pørtnenhip, d/b/a AT&T Wireless Services. as T c:nant. The Property is more particularly described below
BEING a tract of land situated in the M. Lynch Survey, Abstract No. 953 of Tarrant County, Texas
and being a portion of that certain tract described in deed to Tarrant County Water Supply
Corporation recorded in Volume 3563, Page 451 of the Deed Records of Tarrant County, Texas
and being more particularly described as follows:
COMMENCING at a found 3 inch iron pipe in the northeast corner of said Water Supply
Corporation tract and also being the northeast comer of a right of way widening tract described in
deed recorded in Volume 4610, Page 528 of the Deed Records of Tarrant County. Texas;
THENCE, South 89 degrees 49 minutes 03 seconds West, 1.2 feet to the POINT OF
BEGINNING;
THENCE, Continuing South 89 degrees 49 minutes 03 seconds West, 81.8 feet to a fence post;
THENCE, South 00 degrees 10 minutes 57 seconds East, 202.18 feet to a fence post;
THENCE, North 89 degrees 49 minutes 03 seconds East, 81.8 feet to a fence post;
THENCE, North 00 degrees 10 minutes 57 seconds West, 202.18 feet to the POINT OF
BEGINNING and containing 16,538 square feet of land.
Option Land
J
¡Inns
EXHIBIT B
To the Mcmonmdwn ofLcasc: dated , 1999, between the City ofNOIth Richland Hills, a Texas homc-nlie mwtincipelity, as Landlord., and
Metroplex T elcphone Company, a T cx.as gcncral partnership, d/b/a AT&T Wireless Saviccs, as T cnant.
SITE DESCRIPTION
BEING a tract of land situated in the M. Lynch Survey. Abstract No. 953 of Tarrant
County. Texas and being a portion of that certain tract described in deed to Tarrant
County Water Supply Corporation recorded in Volume 3563. Page 45' of the Deed Records
of Tarrant County, Texas and being more particularly described as follows:
COMMENCING at 0 3 inch iron pipe found for the original northeast corner of said Water
Supply Corporation tract. said pipe also being the northeast corner of a right of way
widening tract described by deed recorded in Volume 4610. Page 528 of the Deed
Records of Tarrant County. Texas;
THENCE. with the north line of said Water Supply Corporation tract. South 89 degrees 49
minutes OJ seconds West. at 1.20 feet passing of said west right of way line. and
continuing in 011 a total distance of 83.00 feet to the northeast corner of said Water
Supply Corporation tract; .
THENCE. with the west line of said Water Supply Corporation tract, South 00 degrees 10
minutes 57 seconds East. 73.47 feet;
THENCE. North 89 degrees 49 minutes 03 seconds East. 0.38 feet to the POINT OF
BEGINNING of the herein described tract;
THENCE. South 89 degrees 42 minutes 48 seconds East. 24.00 feet:
THENCE. South 00 degrees 17 minutes 12 seconds West. 20.00 feet;
THENCE. North 89 degrees 42 minutes 48 seconds West. 24.00 feet;
THENCE. North 00 degrees 17 minutes 12 seconds East. 20.00 feet to the POINT OF
BEGINNING and containing 480 square feet of land.
Option Land
4
11/2/98
EXHmrr B
To the Memorandwn ofLcasc daled , 1999. between the City of North Richland Hills, a Texas homc-rulc muruncipelity, as Landlord, and
Metroplex Telephone Company, a Texas general partnership, d/b/a AT&T Wireless ServIces, as Tenant
ACCESS EASEMENT
BEING a tract of land situated in the M. lynch Survey, Abstract No. 953 of Tarrant
County . Texas and being a portion of that certain tract described in deed to Tarrant
County Water Supply Corporation recorded in Volume 3563, Page 451 of the Deed Records
of Tarrant County, Texas and being more particularly described as follows:
COMMENCING at a 3 inch iron pipe found for the original northeost corner of said Water
Supply Corporation tract, said pipe also being the northeast comer of a right of way
widening tract described by deed recorded in Volume 4610, Page 528 in the Deed
Records of Tarrant County, Texas;
THENCE, with the north line of said Water Supply Corporation tract, South 89 degrees 49
minutes OJ seconds West, at 1 .20 feet passing said west right of way line a~d continuing
in all a total distance of 83.00 feet to the northeast corner of said Water Supply
Corporation tract;
THENCE, with the west line of said Water Supply Corporation tract, South 00 degrees 10
minutes 57 seconds East. 93.47 feet to the POINT OF BEGINNING of the herein described
tract;
THENCE, South 89 degrees 42 minutes 48 seconds East, 28.22 feet;
THENCE, North 00 degrees 17 minutes 12 seconds East, 20.00 feet;
THENCE, South 89 degrees 42 minutes 48 seconds East. 12.00 feet;
THENCE. South 00 degrees 1 7 minutes 12 seconds West, 20.00 feet;
THENCE, South 89 degrees 42 minutes 48 seconds East. 41.59 feet;
THENCE. South 00 degrees 10 minutes 57 seconds East. 12.00 feet;
THENCE. North 89 degrees 42 minutes 48 seconds West, 81.80 feet;
THENCE, North 00 degrees 10 minutes 57 seconds West, 12.00 feet
to the POINT OF BEGINNING and containinç 982 square feet of Iond.
Option Land
5
1112198
EXHIBIT B
To the Mcmorandwn o(Lcase dated , 1999, between the: City o(Nonh R1chJand Hills, a Texas homc-rulc mw1incipolity, as Landlord, and
Mctroplcx T elcphonc Company. a Texas gcnet1l1 partnership, d/b/a AT&T Wireless Services, as T cnanl
UTILITY EASEMENT
(7FEET WIDE)
BEING a strip of land 7 feet in width situated in the M. Lynch Survey, Abstract No. 953 of Tarrant
County, Texas and being a portion of that certain tract described in deed to Tarrant County,
Water Supply Corporation recorded in Volume 3563, Page 451 of the Deed Records of Tarrant
County, Texas and being more particularly described as follows:
COMMENCING at a 3 inch iron pipe found for the original southeast comer of said Water Supply
Corporation tract, said pipe also being the southeast comer of a right of way widening tract
described by deed recorded in Volume 4610, Page 528 of the Deed Records of Tarrant County,
Texas;
THENcE, with the south line of said Water supply Corporation tract, South 89 degrees 49
minutes 03 seconds West, 1.20 feet to the POINT OF BEGINNING;
THENCE, continuing with the south line of said Water Supply Corporation tract, South 89 degrees
49 minutes 03 seconds West, 81.80 feet to the southwest comer of said Water Supply
Corporation tract;
THENCE, wit Ii the west line of said Water Supply Corporation tract, North 00 degrees 10 minutes
57 seconds West, 108.72 feet;
THENCE, South 89 degrees 42 minutes 48 seconds East, 7.00 feet;
THENCE, South 00 degrees 10 minutes 57 seconds East, 101.66 feet;
THENCE, North 89 degrees 49 minutes 03 seconds East, 74.80 feet to the west line of the
aforementioned right of way widening tract;
THENCE, with the west line of said right of way widening tract, South 00 degrees 10 minutes 57
seconds East, 7.00 feet to the POINT OF BEGINNING and containing 1,284 square feet of land.
CABLE EASEMENT
(10 FEET WIDE)
BEING a tract of land situated in the M. Lynch Survey, Abstract No. 953 of Tarrant County, Texas
and being a portion of that certain tract described in deed to Tarrant County water Supply
Corporation recorded in Volume 3563, Page 451 of the Deed Records of Tarrant County, Texas
and being more particularly described as follows;
COMMENCING, at a 3 inch iron pipe found for the original southeast comer of said Water Supply
Corporation tract, said pipe also being the southeast comer of a right of way widening tract
described by deed recorded in Volume 4610, Page 528 of the Deed Records of Tarrant County,
Texas;
THENCE, with the south line of said Water Supply Corporation tract, South 89 degrees 49
minutes 03 seconds West, at 1.20 feet passing of said west right of way line, and continuing in all
a total distance of 83.00 feet to the southwest comer of said Water Supply Corporation tract;
THENCE, with the west line of said Water Supply Corporation tract, North 00 degrees 10 minutes
57 seconds West, 87.38 feet to the POINT OF BEGINNING;
Option Land
6
11/2/98