EXHIBIT B WIRELESS COMMUNICATIONS FACILITY LEASE AGREEMENT

Transcription

1 EXHIBIT B WIRELESS COMMUNICATIONS FACILITY LEASE AGREEMENT

2 STATE OF TEXAS COUNTY OF TARRANT Page 1 of 11 WIRELESS COMMUNICATIONS FACILITY LEASE AGREEMENT This LEASE AGREEMENT (Lease) made this day of 2016, by and between Tarrant County, hereinafter called (LESSOR), and, with principal offices at, hereinafter called (LESSEE). WHEREAS, the LESSOR is the owner of the Tarrant County Plaza Garage located at 601 West Weatherford Street, Fort Worth, Texas, 76102; WHEREAS, LESSEE desires to lease space in and/or on the Tarrant County Plaza Garage, 601 West Weatherford Street, Fort Worth, Texas, 76102, hereinafter called building for the purpose of establishing a wireless communications facility. NOW THEREFORE, in and for the covenants, conditions, agreements and rents hereinafter set forth, and other good and valuable consideration, the adequacy of which is hereby acknowledged, LESSOR hereby leases to LESSEE, and LESSEE takes from LESSOR, approximately 300± square feet of space on the ground floor of the building as shown on Page 1 of Exhibit "A" attached hereto, along with the roof space for the antennas as shown on Page 2 of Exhibit "A." The equipment space described above is hereinafter referred to as the "Leased Premises." In addition, LESSOR grants to LESSEE the right to occupy and use the necessary conduit and/or duct space within the building for electrical wiring, telephone lines, and coaxial cable, pipes, tubes and appurtenances thereto, all of which are required by LESSEE as an integral part of its wireless communications facility. LESSEE shall be allowed to install, operate, maintain, replace and remove its communications equipment, and related cables, wires, conduit, antennas, air conditioning equipment, and other appurtenances as it may from time to time require; provided, however, that none of the rights granted to LESSEE shall ever be exercised so as to interfere with LESSOR'S use of the building, damage the building, or cause an increased risk of fire or other casualty. Although, such equipment and appurtenances may become fixtures, they shall be and shall remain the property of LESSEE, and LESSEE shall have the right to remove all of them at the expiration or termination of this Lease. ARTICLE I 1.1 This Lease shall be for a term of ten (10) years, beginning on April 1, 2017, and extending through April 1, 2027, at an annual rental rate of, payable in equal monthly installments on the first of each month, in advance, to the LESSOR. Payments are to be sent to Tarrant County Auditor s Office, 100 East Weatherford Street, Suite 506, Fort Worth, Texas

3 1.2 The initial ten (10) year Lease term may be extended with two (2) optional renewal terms of five (5) years each upon agreement of the LESSEE and LESSOR. Such options shall be exercised by LESSEE by giving LESSOR written notice of LESSEE s desire to renew and extend the term of this Lease, such notice to be given not less than 120 days before the expiration of the term of this Lease then in effect. If LESSOR does not receive LESSEE s written notice of LESSEE s desire to renew within such 120 day period, LESSEE shall be deemed to have waived LESSEE s right to renew the term of this Lease. The renewal and extension of this Lease shall be on and under the same covenants, agreements, terms, provisions, and conditions as are contained herein for the initial term of this Lease, except the Rent shall increase as defined below: Rent Initial ten (10) year term rent: $ annually First five (5) year optional term rent: Initial term annual rent x 1.1 = First 5 year term annual rent Second five (5) year optional term rent: First 5 year optional term annual rent x 1.1 = Second 5 year term annual rent ARTICLE II 2.1 LESSEE shall be responsible for all costs of installing a separate electric meter to monitor the electrical use of LESSEE. Said meter shall be installed and connected to LESSEE'S equipment room. LESSEE will be responsible to LESSOR and will pay to LESSOR in addition to the rent provided for herein or by amendment hereto, an amount equal to LESSOR'S cost per kilowatt hour for electricity so used by LESSEE. LESSOR shall obtain a reading of said meter each month, compute the cost of electricity used by LESSEE, and bill LESSEE for same. 2.2 Upon receipt of said bill, LESSEE shall promptly, but in any event no later than thirty (30) days after receipt of the bill, reimburse LESSOR for such cost. ARTICLE III LESSEE agrees that it will operate its equipment lawfully and in a manner which will not interfere with LESSOR'S existing communications systems or the existing equipment of any other tenant sharing the use of this building. Should such harmful interference be identified as being caused by LESSEE'S equipment, LESSEE shall immediately take every step to eliminate said interference. LESSOR shall require that all current and future wireless communication operators desiring to use this location will first coordinate with LESSEE to insure that their frequencies and antenna locations will be compatible with LESSEE'S so as to prevent such harmful interference. Page 2 of 11

4 ARTICLE IV It is understood and agreed that LESSEE'S ability to use the Leased Premises is contingent upon its obtaining, either before or after the effective date of this Lease, all of the certificates, permits, and other approvals that may be required by any federal, state or local authorities ("Governmental Approvals"). LESSEE shall make due and timely application for all such necessary certificates, permits and other approvals and shall be responsible for the cost of all such certificates, permits, and other approvals. The LESSOR shall use reasonable efforts to cooperate with LESSEE in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Leased Premises with respect to the proposed use thereof by LESSEE. In the event any of the Governmental Approvals are not obtained within one hundred twenty (120) days of this Lease execution, LESSOR may terminate this Lease. In the event that any of such applications is finally rejected or any certificate, permit, license or approval issued to LESSEE is canceled or otherwise withdrawn or terminated by Governmental Authority, LESSEE shall have the right to terminate this Lease upon giving LESSOR ninety (90) days prior written notice. Notice of termination shall be given to the other party in writing by certified mail. All rent paid for lease of the property to said termination date shall be retained by LESSOR. Upon termination, this Lease shall become null and void, and the parties shall have no further obligations, including the payment of money, to each other. Page 3 of 11 ARTICLE V 5.1 LESSEE SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS LESSOR, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LAWSUITS, DAMAGES, LOSSES, JUDGMENTS AND LIABILITIES, AND COSTS OR EXPENSES (INCLUDING REASONABLE ATTORNEY S FEES) ARISING FROM ANY ACT OR OMISSION OF LESSEE OR ITS EMPLOYEES, AGENTS, CONTRACTORS, OR INDEPENDENT CONTRACTORS, OR BY THE WILLFUL MISCONDUCT OF ANY THEREOF, OR BY BREACH OF THIS LEASE. LESSEE SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES ARISING SOLELY FROM THE LESSOR S NEGLIGENCE, WRONGFUL ACTS, ERRORS, OMISSIONS OR INTENTIONAL MISCONDUCT. 5.2 During the term of the Lease, LESSEE shall maintain policies of insurance covering loss of or damage to the equipment owned by LESSEE on LESSOR S property. LESSOR is not required or responsible for maintaining insurance on any equipment installed by LESSEE. LESSOR shall not be responsible for any damage to equipment caused by theft, fire, windstorm, or other calamity or act of God. 5.3 To LESSOR'S actual knowledge without investigation by it (and LESSEE requires none), LESSOR represents, warrants and agrees that the business conducted at the Leased Premises by LESSOR is and will remain during the term of this Lease in substantial compliance with such federal, state, and local laws and regulations applicable to such business operations the violation of which would materially and adversely interfere with LESSEE'S use of the Leased Premises ("Legal Compliance"). If as a direct result of LESSEE'S use of the Leased Premises, LESSOR is required to incur additional expenses for its Legal Compliance, LESSEE agrees to reimburse LESSOR for such reasonable additional expenses.

5 5.4 To LESSEE'S actual knowledge without investigation by it (and LESSOR requires none), LESSEE represents, warrants, and agrees that LESSEE'S business (as now conducted and as to be conducted at the Leased Premises) is and will remain during the term of this Lease in substantial compliance with all federal, state, and local laws applicable to LESSEE'S business, and LESSEE will bear and pay all costs of Legal Compliance with respect to its business. 5.6 LESSOR represents and warrants to LESSEE that LESSOR: (i) is not presently engaged in, (ii) does not presently have actual knowledge of, (iii) has not at any time in the past engaged in, and (iv) has no actual knowledge that any third person or entity has engaged in or permitted any operations or activities upon, or any use or occupancy of, the Leased Premises, or any portion thereof, for the purpose of, or in any way involving the handling, manufacturing, treatment, storage, use, transportation, spillage, leakage, dumping, discharge, or disposal (whether legal or illegal), accidental or intentional, of any hazardous substances or any wastes regulated under any local, state or federal law. 5.7 LESSEE represents, warrants, and covenants to LESSOR that LESSEE shall at no time during the term of this Lease, use or permit the Leased Premises to be used in violation of any Environmental Regulations. LESSEE SHALL INDEMNIFY AND HOLD LESSOR HARMLESS FROM ANY AND ALL CLAIMS OF LIABILITY UNDER ANY ENVIRONMENTAL REGULATIONS ARISING OUT OF LESSEE'S USE OR OCCUPANCY OF THE LEASED PREMISES. 5.8 For purposes of these provisions, the term "Environmental Regulations" shall mean any law, statute, regulation, order or rule now or hereafter promulgated by any governmental authority, whether local, state or federal, relating to air pollution, water pollution, radio transmission or frequency hazards, noise control and/or transporting, storing, handling, discharge, disposal or recovery of on-site or off-site hazardous substances or materials, as same may be amended from time to time, including without limitation the following: (i) the Clean Air Act; (ii) Marine Protection, Research and Sanctuaries Act, (iii) the Clean Water Act; (iv) RCRA, as amended by the Hazardous and Solid Waste Amendments of 1984; (v) CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986; (vi) TSCA; (vii) the Federal Insecticide, Fungicide and Rodenticide Act as amended; (viii) the Safe Drinking Water Act; (ix) OSHA; (x) the Hazardous Liquid Pipeline Safety Act; (xi) the Hazardous Materials Transportation Act; (xii) the Noise Control Act of 1972; (xiii) EPCRA; (xiv) National Environmental Policy Act. ARTICLE VI 6.1 LESSEE shall install its equipment and antennas as shown on Exhibit "A." 6.2 Subject to compliance with all laws and obtaining all governmental approvals, LESSEE is solely responsible at its own expense for completing all make ready work and installing its equipment and antennas in accordance with plans and specifications prepared by LESSEE and submitted to LESSOR for approval before work commences on site. LESSOR shall have thirty (30) days to review said construction plans and approve them, or in the alternative, to advise LESSEE of necessary changes. LESSEE shall not commence construction until said approval has Page 4 of 11

6 been received from LESSOR. All plans and specifications shall be in compliance with the City of Fort Worth Building Code and all other applicable codes. 6.3 LESSEE is prohibited from installing equipment, cables, and antennas that are outside the agreed upon square feet depicted in Exhibit A without prior written approval from LESSOR. Should the square feet required by the LESSEE increase, and LESSOR approves the increase required, then the rent amount will be increased accordingly through an amendment to this Lease. 6.4 LESSEE shall at its expense repair all damages to LESSOR'S building and roof which are a direct result of LESSEE'S activities. If LESSEE fails to make such repairs within fifteen (15) working days after the damage occurs, LESSOR shall have the right to make all necessary and reasonable repairs and LESSEE shall reimburse LESSOR for its reasonable expense within (30) thirty days of LESSOR presenting to LESSEE a statement showing the cost of such repairs. Failure of LESSEE to timely make or pay for such repairs gives LESSOR the right to terminate this Lease without any further obligation, in which case LESSEE must comply with Article XVIII of this Lease. ARTICLE VII 7.1 LESSEE will carry during the term of this Lease the following liability insurance with customary coverage and exclusions: Bodily Injury: $1,000, for injury to any one person and $2,000, for all injuries sustained by more than one person in any one occurrence. $500, for damage as a result of any one accident. 7.2 Each year of the Lease, LESSEE agrees to furnish LESSOR with certificates of insurance certifying that LESSEE has in force and effect the above specified insurance and naming LESSOR as an additional insured. 7.3 In addition to the above, LESSEE will provide proof of coverage for Statutory Worker s Compensation insurance on individuals involved in installing or performing maintenance to any equipment while on LESSOR property. ARTICLE VIII LESSOR agrees to pay when due all real property taxes levied against the land and building of which the demised premises are a part, but LESSEE shall be liable for all taxes levied against personal property and trade fixtures placed by LESSEE in the Leased Premises, all LESSEE'S business license or permit fees, all fees for occupancy permits and all other fees or taxes of whatsoever kind or type whatsoever attributable to the Leased Premises, business occupancy or operations. LESSEE shall pay, as additional rent, any increase in real property taxes levied against the Leased Premises which is directly attributable to LESSEE'S improvement, use or occupancy of the Leased Premises. Page 5 of 11

7 ARTICLE IX LESSEE shall not be deemed to have abandoned the Leased Premises even though LESSEE may cease using the communications facilities for a period of time so long as LESSEE continues to pay all rent and LESSEE S electricity charges in accordance with Article II of this Lease. ARTICLE X If any portion of the building forming a part of the Leased Premises is destroyed or damaged by fire, wind, water or other natural disaster not caused by or arising from the acts or omissions of LESSEE'S gross negligence or willful misconduct so as to render the Leased Premises, in the sole judgment of the LESSEE, unfit in whole or in part for occupancy for use by LESSEE, then in the sole discretion of LESSOR, LESSOR may (i) restore or cause to be restored the building within a reasonable period of time not to exceed ninety (90) days after the occurrence of said damage or destruction, using all deliberate speed and diligence in furtherance of such restoration; or (ii) terminate this Lease. If repairs are not made by LESSOR within ninety (90) days of the occurrence of said damage or destruction, LESSEE shall have the option of terminating this Lease. If LESSOR expands the building or is required to makes repairs to areas that require the LESSEE s wireless communication facilities to be interrupted, rent payments shall be abated for the period during which LESSEE is unable to use that portion of the wireless communication facilities. If LESSOR expands the building or is required to makes repairs to areas that require the LESSEE s wireless communication facilities to be removed temporarily, LESSEE will remove and replace LESSEE s equipment, cables, conduits and/or antennas at no cost to LESSOR. Rent payments shall be abated for the period during which LESSEE is unable to use that portion of the wireless communication facilities. LESSOR will make every reasonable attempt to assist LESSEE with relocating LESSEE s equipment on the building should the building be expanded or repairs be needed to the Leased Premises or surrounding area of the building. ARTICLE XI If all or any part of the Leased Premises is taken for a public or quasi-public use by eminent domain proceedings by jurisdictions having the legal right to take said premises, and if said taking, in the sole judgment of LESSEE, renders the Leased Premises partially or wholly unusable for its intended purposes, or if LESSOR determines, in its sole discretion, that such taking effects its ability to continue under this Lease, then at LESSEE' S or LESSOR'S option, as the case may be, this Lease may be terminated and there shall be no further payment of rents and electricity charges except that which may have been due and payable at the time of said taking. If the Leased Premises are substantially usable for its intended purposes, LESSOR shall reduce the rental on the premises by an amount proportionate to the extent to which the square footage of the Leased Premises was reduced through an amendment to the Lease. ARTICLE XII 12.1 LESSEE shall have full and free access to LESSEE'S equipment and antennas 24 hours a day, seven days a week, provided there is no building expansion or repairs in progress that require the LESSEE to schedule such access with the LESSOR in advance. Page 6 of 11

8 12.2 LESSOR shall provide parking privileges at no cost to LESSEE for one (1) vehicle to be used by LESSEE S maintenance personnel. Page 7 of 11 ARTICLE XIII Notwithstanding anything to the contrary contained herein, LESSOR'S prior written consent shall not be required, nor shall LESSOR have the right to cancel this Lease if LESSEE assigns or subleases, this Lease or any interest herein to any corporation, partnership or other entity which (i) is controlled by, controlling or under common control with LESSEE, or (ii) shall merge or consolidate with or into LESSEE, or (iii) shall succeed to all or substantially all the assets, property and business of LESSEE. Otherwise, LESSEE is not allowed to 1) sublet this Lease, 2) sublet any Leased Premises building space or roof top space to another party, 3) co-locate other parties within the Leased Premises, or 4) allow other wireless carriers to use LESSEE S equipment or antennas or space in the building without prior approval of LESSOR. ARTICLE XIV 14.1 Should LESSEE fail to do any one or more of the following, then LESSOR may, at its option, thereupon declare this Lease terminated: Pay the rental and electricity charges hereinabove specified when the same shall become due and payable Attempt to use the Leased Premises for any purpose other than that described herein above Attempt to assign or sublet this Lease without prior written consent of the LESSOR, except as provided for above Fail to indemnify and hold LESSOR harmless from liability as above set forth In any way default in its performance of any of the conditions of this Lease, 14.2 In order to terminate this Lease for any of the reasons stated in section 14.1, LESSOR must first give LESSEE notice in writing of said default. Upon receipt of such notice, LESSEE shall have thirty (30) days to correct the condition or conditions and bring them into compliance with the terms of this Lease. If said conditions of default persist after thirty (30) days of notice thereof by LESSOR to LESSEE, then LESSOR may declare this Lease terminated. Upon written notice of said termination to LESSEE, LESSOR shall be entitled to possession of the above described Leased Premises; provided, however, that any such termination shall not relieve LESSEE of its obligations to pay any rent which may be due and payable to the date of said termination. ARTICLE XV 15.1 Any notice or demand made pursuant to this Lease shall be sufficiently given if made by certified mail, in a sealed envelope, postage prepaid, and addressed as shown below:

9 LESSEE: LESSOR: With copy to: Tarrant County c/o David Phillips Director of Facilities Management 100 West Weatherford Street, Room 460 Fort Worth, Texas Tarrant County c/o G.K. Maenius County Administrator 100 East Weatherford Street, Suite 404 Fort Worth, Texas Any such notice or demand shall be deemed to have been given or made at the time it is deposited in the United States Mail. LESSEE or LESSOR may from time to time designate any other address for this purpose by written notice to the other party. ARTICLE XVI LESSOR warrants that it has full right and power to execute and perform this Lease, and to grant the estate demised herein. LESSEE warrants that it has full right and power to execute and perform in accordance with the terms and conditions of this Lease. ARTICLE XVII Subject to the other terms of this Lease, LESSOR covenants that LESSEE shall, and may peacefully have, hold and enjoy the Lease Premises for the Lease Term free of any claims by any party claiming by, through or under LESSOR, provided that LESSEE pays the rent and charges to be paid to LESSOR under this Lease and performs all of LESSEE S covenants and agreements herein contained. ARTICLE XVIII Upon termination of this Lease, LESSEE shall within thirty (30) days remove its personal property and restore the Leased Premises to the condition the Leased Premises where when LESSEE originally took possession. LESSEE will not be liable for payment of any additional rent or charges during this period so long as LESSEE timely and satisfactorily fulfills these obligations. If, however, LESSEE fails to remove its personal property and restore the Leased Premises within 30 days from the date of termination, LESSEE will be liable for rent under a day-to-day tenancy relating back to the date of termination and for every day thereafter until LESSEE removes its personal property and restores the Leased Premises at the rental rate that most recently applied under this Lease, plus 100% of such rate. FURTHER, LESSEE SHALL REIMBURSE LESSOR FOR AND INDEMNIFY LESSOR AGAINST ALL DAMAGES INCURRED BY LESSOR AS Page 8 of 11

10 A RESULT OF ANY DELAY IN LESSEE REMOVING ITS PERSONAL PROPERTY AND RESTORING THE LEASED PREMISES. ARTICLE XIX This Agreement shall extend to and bind heirs, executors, administrators, successors and assigns of the parties hereto. ARTICLE XX This Lease is non-exclusive. LESSOR may enter into the same or similar agreements to lease other portions of its real estate and buildings and other improvements on real property to any person, firm, or entity in competition with LESSEE. ARTICLE XXI This Lease and the performance thereof shall be governed, interpreted, construed, and regulated by the laws of the State of Texas. Any litigation concerning this Lease shall be conducted in the courts located in Tarrant County, Texas, and the parties hereto agree to the venue and personal jurisdiction of these courts. ARTICLE XXII The parties hereto declare that they have read and do understand each and every term, condition and covenant contained in this Lease and in any document incorporated by reference. This Lease includes the entire agreement between the parties relating hereto and supersedes all prior or contemporaneous negotiations, commitments, representation, writings and/or oral understandings or agreement. The parties signed this Lease for the consideration herein expressed. Any addition to, variation or modification of this Lease shall be void and ineffective unless in writing signed by the parties hereto. ARTICLE XXIII LESSEE acknowledges and agrees that it has fully, accurately, and completely disclosed all interested parties on the attached Form 1295, and has acknowledged the completeness of this disclosure by filing the Form 1295 with the Texas Ethics Commission as required by law. Page 9 of 11

11 SIGNED AND EXECUTED this day of, LESSOR: TARRANT COUNTY By: B. Glen Whitley County Judge LESSEE: By: Page 10 of 11

12 INSERT (FORM 1295) HERE Page 11 of 11