HomeMy WebLinkAboutRes 04-24 Authorizing a Telecommunications Lease of Space to Bellwave CommunicationsTOWN OF WESTLAKE
RESOLUTION NO. 04-24
A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF
WESTLAKE, TEXAS AUTHORIZING THE TOWN MANAGER TO ENTER
INTO A TELECOMMUNICATIONS LEASE OF SPACE ON THE
KELLER/WESTLAKE ELEVATED STORAGE FACILITY TO BELLWAVE
COMMUNICATIONS, INC. FOR THE INSTALLATION OF WIRELESS
INTERNET EQUIPMENT TO SERVE THE TOWN OF WESTLAKE.
BE IT RESOLVED BY THE BOARD OF ALDERMAN OF THE TOWN OF
WESTLAKE, TEXAS:
SECTION 1: That the Board of Aldermen of the Town of Westlake does hereby
authorize the Town Manager to enter into a telecommunications lease with Bellwave
Communications for the installation of wireless internet equipment to serve the town,
residents and businesses of Westlake with wireless internet services.
SECTION 2: That this Resolution shall become effective upon the date of its
passage.
PASSED AND APPROVED ON THE 24' DAY OF MAY 2004.
ATTEST:
/a,Y
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bin&r' Crosswy, ToQ Secretary
APPROVED AS TO FORM:
L. Stanton L wn Attorney
Scott Bradley, Mayor
Trent Petty, Town M lager
THIS GROUND AND TOWER LEASE AGREEMENT ("Lease"), is entered into as of this
13' day of J I- , 2004 (the "Effective Date") by and between the Town of Westlake,
Texas ("Westlake"), a ype A general law municipality, and BelWave Communications, Inc., a
corporation authorized to do business in Texas with its principal place of business at P.O. Box
121729, Fort Worth, Texas 76121 ("TENANT").
In consideration of the premises and of the mutual obligations and agreements in this Lease, the
parties agree as follows:
A. Westlake is the titleholder of that certain real property commonly known as the Knox
Road Water Tower Site, City of Keller, County of Tarrant, State of Texas, which is described on
the attached Exhibit "A-1" and Exhibit "A-2" ("OWNER's Property"). .
B. Westlake and TENANT understand that the Leased Site shall be designed to utilize
Westlake's Knox Road Water Tower Site located at the intersection of Knox Road and
Ravenwood Drive in Keller, Tarrant County, Texas. TENANT shall be allowed to use that
portion of OWNER'S Property reflected on Exhibit "A-3" for the purposes set forth in Section 4
of this Lease.
C. TENANT desires to lease and Westlake hereby leases to TENANT a portion of
OWNER's Property and a certain portion of the water tower to be located on OWNER's Property
(the "Leased Site"), together with obtaining a right of access and a right to install utilities on the
Leased Site. The Leased Site that is the subject of this Lease is located on the OWNER's
Property and within the interior of the support column of the elevated water tower. The leased
area is further defined as a floor space area of three feet wide measured from the face of the
interior column wall and eight feet long measured along the face of the interior column wall and
located within eight feet of the bowl access ladder and comprised of approximately 24 square
feet, and is situated substantially as shown on the attached Exhibit "A-3" and with respect to the
space on the water tower topmost safety rail with its general location and orientation are set forth
on the attached Exhibit "A-3", and related equipment as shown on Exhibits "A-4" and "A-5".
TENANT shall have the right to run cables, wires, conduits and pipes under, over and across
OWNER'S Property to connect TENANT's equipment on the water tower to its equipment in its
facility located on the Leased Site, subject to the approval of Westlake as provided for in Section
4.A. of this Lease. Westlake hereby grants to TENANT the right to use OWNER's Property
when TENANT is constructing, removing, replacing, servicing, securing, or maintaining its
communications facility, subject to the terms and conditions contained herein.
Westlake leases the Leased Site to TENANT and agrees that TENANT shall have access to
the Leased Site for the purposes of constructing, installing, operating and maintaining the
communications facility, and to install, remove, replace, and maintain utility cables, conduits
DALLAS'`190957.4
and pipes, and during the continuation of this agreement, and any renewals thereof, ingress and
egress is hereby granted to TENANT seven (7) days a week, twenty-four (24) hours a day. It is
agreed, however, that only authorized engineers, employees, or properly authorized contractors,
subcontractors, agents of TENANT or Westlake, Federal Communications Commission (FCC)
inspectors, or persons under their direct supervision, will be permitted to enter the Leased Site
accompanied by Keller personnel. Westlake agrees that authorization of the above -referenced
contractors and engineers shall not be unreasonably withheld, conditioned, or delayed.
A. The initial term of this Lease ("the Initial Term") shall be five (5) years and
shall commence on the issuance of any building permit and/or notice to proceed
with construction to TENANT from Westlake for any permanent improvement by
TENANT to the Leased Site (the "Commencement Date"). In lieu of annual lease
payments of $22,800.00 ($11,400.00 to Keller and $11,400.00 to Westlake)
during the Initial Tenn and any Renewal Terms, TENANT shall provide the
following SERVICES: TENANT will provide Keller the labor and equipment
required for the installation of and service for 1.5Mbps High Speed Internet
Access Service ("Service") to the Keller facilities located at 350 and 405 Rufe
Snow Drive, Keller, Texas. TENANT shall also provide the Town of Westlake
("Westlake") the labor and equipment required for the installation of and service
for 1.5Mbps High Speed Internet Access Service to the Westlake facility as
designated by Westlake. Such services to Keller and Westlake will commence
and be fully operational within 60 days of the Commencement Date and continue
thereafter during the Initial Term. Thereafter, unless TENANT advises Westlake
in writing during the Initial Term or the then current Renewal Term (defined
below) (not less than ninety (90) days prior to the expiration of the Initial Term or
any Renewal Term) that it does not desire any additional extensions, this Lease
shall automatically renew and extend for four (4) additional five (5) year Renewal
Terms (each a "Renewal Term"), each beginning upon the expiration of the Initial
Term or the current Renewal Term then in effect (the Initial Term and any
Renewal Term(s) sometimes referred to herein as the "Term").
B. In the event TENANT, during the Initial Term or any Renewal Term, fails
to satisfactorily provide any portion of the aforementioned Services or provides
notice that said Services can no longer be provided as set forth in this Agreement
and desires to continue use of the Leased Site, TENANT shall commence
payment of an annual lease payment in the amount of $22,800.00. The annual
lease payment is due on the effective date of said Agreement; however, the
amount of lease payment due in the first year of TENANT's canceling any or all
portions of the Services in lieu of lease payment shall be pro rated beginning with
the number of months remaining in the twelve (12) months commencing with the
effective date with the full annual lease payment due and payable thereafter.
Following the expiration of the Initial Term, should Keller and/or Westlake,
collectively or individually, provide TENANT at Ieast eighteen (18) months
written notice that it no longer desires Service from TENANT, TENANT shall,
once the eighteen (18) month notice period concludes, commence paying Keller
and/or Westlake annual lease payments as defined herein.
Ground and Tower Lease Agreement — Page 2
A. TENANT may use the Leased Site for installing, removing, replacing, modifying,
maintaining and operating, at its expense, a personal communications service
system facility, including, without limitation, antenna equipment, cable wiring,
back-up power sources (including generators and fuel storage tanks or conduit,
cable and grade level plugs for the placement of a portable generator at grade),
related fixtures and, if applicable to the Leased Site, an antenna structure.
TENANT may construct a fence around the Leased Site, subject to Westlake's
approval, said approval not to be unreasonably withheld, conditioned, or delayed.
Each such antenna array or antenna support structure may be configured as
requested by TENANT from time to time, provided TENANT obtains, pursuant
to Paragraph 4.B., all permits and approvals required by applicable jurisdictions
for such requested configuration. Westlake shall have the right to approve plans
for any improvements, including any fence or antennae array, installed by
TENANT on the Leased Site. Westlake shall be notified in writing about any
scheduled construction times and major repair times unless an emergency exists.
(1) TENANT covenants and agrees that TENANT's equipment, its
installation, operation, and maintenance will not interfere with the
operation of OWNTER's radio or electronic equipment at the Leased Site,
nor the operation of the elevated water storage facility located on
OWNTER's Property described in Exhibit "A -l" or "A-2" herein.
(2) TENANT shall coordinate with Westlake and all existing operators of
radio or other equipment at the Tower to ensure that TENANT's
frequencies and antenna location will be compatible with equipment
existing at the Leased Site on the Effective Date of this Agreement.
(3) In the event there is harmful interference to the existing radio or electronic
equipment, TENANT shall promptly make all reasonable efforts to
eliminate any harmful interference, if caused by TENANT's equipment,
within ten (10) days after notice from Westlake or such other operator to
TENANT advising of the interference.
(4) If said interference to said existing operator cannot be eliminated within
thirty (30) days, TENANT shall suspend operations (transmissions) at the
site while the interference problems are studied and a means is found to
mitigate them.
(5) If said interference cannot be eliminated, then TENANT shall, without
further penalty or liability, terminate this Lease upon immediate notice to
Westlake and remove its equipment shelter, antenna facilities, concrete
pads, cables, generators, fences, and any other TENANT owned
equipment from the Leased Site.
(6) If any interference occurs to Westlake's public safety transmission
equipment, whether existing or subsequent, and is caused by TENANT,
Ground and Tower Lease Agreement — Page 3
TENANT will immediately cease all operations until the interference is
cured.
(7) From time to time Westlake may grant to other entities the right to operate
communications facilities at the Tower and/or the right to install antennas
in connection with the operation of such facilities or other
communications facilities; provided, however that the operation of such
facilities and antennas by other occupants shall be required to comply
with all of the requirements contained herein relative to TENANT's
equipment and shall covenant not to interfere with TENANT's
communications facilities and/or other equipment. TENANT further
agrees that it will comply with all applicable rules and regulations of the
Federal Communications Commission, and electrical codes of the Town
and/or State. Under this Lease, Westlake assumes no responsibility for
the licensing, operations and/or maintenance of TENANT's equipment.
TENANT's right to use the Tower shall not interfere with Westlake's
superior right to use the same as an integral part of the Town's water
system.
(8) Westlake acknowledges that TENANT's ability to use the Leased Site for
its intended purposes is contingent upon TENANT's obtaining and
maintaining, both before and after the Commencement Date, all of the
certificates, permits, licenses and other approvals (collectively,
"Governmental Approvals") that may be required by any federal, state or
local authority for the foregoing uses and improvements to the Leased Site
desired by TENANT. Westlake shall cooperate with TENANT in
TENANT's efforts to obtain such Governmental Approvals and shall take
no action that would adversely affect TENANT's obtaining or maintaining
such Governmental Approvals. Should Westlake be notified or cited by
any State or Federal regulatory agency that OWNER's Property is not in
compliance with said agencies regulations due to TENANT's installation
of improvements under this Lease, Westlake will immediately notify
TENANT of said non-compliance and if TENANT does not cure the
conditions of non-compliance within the time frame allowed by the citing
agency, Westlake may terminate this Lease.
(9) For all routine maintenance and operational visits, TENANT shall provide
24-hour advanced notification to Keller's Utility Dispatch Office [(817)
743-4200] of the need to access the OWNER's property. Keller, without
unreasonable delay, shall escort TENANT to the OWNER's property and
accompany the TENANT while on the OWNER's property. In the event
of an emergency requiring TENANT to gain immediate access to the
OWNER'S property, TENANT shall notify Keller's Utility Dispatch
Office and immediate access will be granted TENANT.
5. T'ERMINATION
A. In the event any application for certificate, permits, licenses or other approvals
will be too costly, time consuming or there is a reasonablelikelihood that said
Ground and Tower Lease Agreement — Page 4
application will be rejected in the opinion of TENANT or any certificate, permit,
license, or approval issued to TENANT is canceled, expires or lapses or is
otherwise withdrawn or terminated by governmental authority or soil boring tests
and/or environmental studies are found to be unsatisfactory so that TENANT, in
its sole discretion determines that it will be unable to use the Leased Site for the
purposes set forth herein, TENANT shall have the right to terminate this Lease.
Prior written notification to Westlake of TENANT's intent to exercise its right to
terminate this Lease shall be by certified mail, return receipt requested, and shall
be effective upon receipt of such notice by Westlake as evidenced by the return
receipt.
B. In addition, and provided that TENANT is not then in default under this Lease,
TENANT may, during the Initial Term or any Renewal Term, upon one (1) year's
written notice to Westlake, terminate and cancel this Lease if TENANT
determines in its discretion that the Leased Site has become unsuitable for
TENANT's operations. As to such termination fee, TENANT shall receive a
credit equal to the amount of any unearned rent as of the date of such termination.
C. Westlake shall have the option of terminating the Lease pursuant to the provisions
of Section 11.
A. Except to a "Partner Company", "Affiliate" or "Subsidiary" of TENANT or an
"Affiliate" or "Subsidiary" of a "Partner Company" of TENANT (as defined
below), TENANT shall not assign this Lease, or allow it to be assigned, in whole
or in part, by operation of law or otherwise, or mortgage or pledge the same, or
sublet the Leased Site, or any part thereof, without the prior written consent of
Westlake, such consent not to be unreasonably withheld, conditioned, or delayed.
Westlake's consent to an assignment or sublease shall be deemed given if
Westlake does not respond to TENANT's request within thirty (30) days after
Westlake's receipt of such request.
B. Each of the partners of TENANT is a Partner Company. An Affiliate of an entity
is any entity fifty-one percent (51 %) or more of the ownership of which is owned,
directly or indirectly, by such entity or under common ownership with such
entity. A Subsidiary of an entity is any entity eighty percent (80%) or more of the
ownership of which is owned by such entity.
C. No consent by Westlake to any assignment or sublease by TENANT shall relieve
TENANT of any obligation to be performed by TENANT under this Lease,
whether arising before or after the assignment or sublease, except as otherwise
provided below. The consent by Westlake to any assignment or sublease shall
not relieve TENANT from the obligation to obtain Westlake's express written
consent to any other assignment or sublease. TENANT shall only be released
from liability for current or future obligations under this Lease when it provides
notice to the assignee of the rights and obligations under this Lease and delivers
to Westlake proof of such notice together with a copy of an assignment document
which is reviewed and approved by the Westlake Town Attorney. TENANT and
Ground and Tower Lease Agreement — Page 5
any future former tenant, is not released from existing or accrued liability under
the Lease. TENANT must also provide the mailing address and phone number of
the new assignee.
D. Any sale or other transfer, including by consolidation, merger or reorganization,
of a majority of the voting stock of TENANT, if TENANT is a corporation, or
any sale or other transfer of a majority in interest (whether of profits, losses,
capital or voting power) or a majority of the persons comprising the managers of
the partnership, if TENANT is a partnership, shall not be an assignment for
purposes of this Paragraph 6.
Westlake shall have the ability to temporarily remove any equipment or facilities in order to
maintain the water tower on the Leased Site. Cost to remove any TENANT equipment or
facilities would be borne by TENANT, unless such relocation is required more often than two
(2) times in the Initial Term or any subsequent Renewal Term. Removal of TENANT's
equipment shall be performed by TENANT on ninety (90) days prior written notice from
Westlake. Reattachment of TENANT's facilities or equipment shall be by TENANT on notice
from Westlake that the maintenance which necessitated the equipment or facilities removal has
been completed. TENANT must notify Keller prior to entering the Leased Site or entering the
water tower or climbing or scaling the water tower by contacting the City. Keller will provide
TENANT with a contact person to ensure that TENANT has twenty-four hour, seven days a
week, access to the water tower.
During any period of Westlake's maintenance that requires the removal of TENANT's equipment
or facilities from said Tower, Westlake shall allow TENANT to place a portable mounted
antenna, a.k.a. "Cell On Wheels" (COW), on OWNER's Property in order for TENANT to
provide continuous wireless telecommunications service. There shall be no additional fee or
rental due Westlake for this temporary placement. A Special Use Permit may be required to
place this temporary equipment on OWNTER's Property.
Only officials with the Federal Communications Commission and qualified and adequately
insured agents, contractors or persons under TENANT's direct supervision will be permitted to
climb or scale the water tower or to install or remove TENANT's equipment or facilities from
the water tower. Westlake retains the right to permit their own employees and agents and
employees and agents of subsequent users of the water tower, to climb or scale the water tower
for all purposes that do not unreasonably interfere with TENANT's use of the water tower.
Ground and Tower Lease Agreement — Page 6
1; 1 1
1MANX-RIVININMa 0 M1
H. TENANT shall provide Westlake with a certificate of insurance issued by an
insurance company licensed to do business in Texas indicating that TENANT
carries commercial general liability insurance with limits of liability thereunder of
not less than $1 million combined single limit for personal injury, bodily injury,
property damage, or business loss or damage together with an endorsement for
contractual liability. Such shall name Keller and Westlake as an additional
insured with respect to the Leased Site. TENANT will provide Keller and
Westlake with a renewal certificate within ten (10) business days of Westlake's
written request for such certificate. Any insurance required to be provided by
TENANT under this Paragraph 8 may be provided by a blanket insurance policy
covering the Leased Site and other locations of TENANT, provided such blanket
insurance policy complies with all of the other requirements of this Lease with
respect to the type and amount of insurance required. TENANT may also fulfill
its requirements under this Paragraph 8 through a program of self-insurance
provided that Westlake approves of said program. If TENANT elects to self -
insure, then TENANT shall furnish Westlake with a letter stating that there is a
self-insurance program in effect that provides for the same, or greater, coverage
than required of TENANT herein.
C. TENANT shall carry comprehensive auto insurance covering TENANT and the
additional insured against all claims for injuries to members of the public and
damage to property of others arising from the use of motor vehicles, and shall
cover operation on and off the Leased Site of all motor vehicles licensed for
highway use, whether they are owned, non -owned, or hired. The liability
coverage shall not be less than Sl million combined single limit for bodily injury
and property damage.
TENANT shall be allowed by OWNER to construct one (1) 120volt AC/30 Amp electrical
outlet, at the TENANT's expense, at the location on the OWNER's property as shown on
Exhibit "A-3". TENANT shall pay OWNER for all electric power usage associated with the use
of TENANT's equipment based on a power usage calculation and current cost per kilowatt hour
of electricity and any other charges based on the OWNER's electric utility provider's rates and
as agreed to between OWNER and TENANT. It shall be the sole responsibility of TENANT to
provide, at TENANT's expense, additional electrical outlets necessary to provide High Speed
Internet service to either Keller or Westlake. TENANT shall be responsible for paying all
electric usage charges relating to said High Speed Internet service to either or both Keller and
Westlake.
TENANT's antennas and equipment shall remain personal to and the property of
TENANT. At the termination or expiration of this Lease, TENANT shall remove its antennas
and/or equipment. TENANT (i) shall repair any damage caused by such removal, (ii) with
respect to any land leased shall remove all of its equipment, and (iii) shall otherwise surrender
Ground and Tower Lease Agreement — Page 7
the Leased Site at the expiration of the term (as the same may have been extended or the earlier
termination thereof) in good condition and at a minimum, as nearly as is reasonably possible to
its condition at the time of the execution of this Lease, ordinary wear and tear excepted.
A. The occurrence of any one or more of the following events shall constitute an
"Event of Default" hereunder by TENANT:
(1) The failure by TENANT to provide the Service to Feller or Westlake
hereunder, as and when due, where such failure shall continue for a period
of thirty (30) days after written notice thereof is received by TENANT
from Westlake.
(2) The failure by TENANT to observe or perform any of the covenants or
provisions of this Lease to be observed or performed by TENANT, other
than as specified in Paragraph ILA.(1), where such failure shall continue
for a period of thirty (30) days after written notice thereof is received by
TENANT from Westlake; provided, however, that it shall not be deemed
an Event of Default by TENANT if TENANT shall commence to cure
such failure within said thirty (30) day period and thereafter diligently
prosecutes such cure to completion.
B. If there occurs an Event of Default by TENANT, in addition to any other
remedies available to Westlake at law or in equity, Westlake shall have option to
terminate this Lease and all rights of TENANT hereunder.
C. If there occurs an Event of Default by TENANT, Westlake shall not have the
right, prior to the termination of this Lease, to re-enter the Leased Site and/or
remove persons or property from the Leased Site or the Tourer.
D. In an Event of Default, which is not cured under Paragraph 11 herein, TENANT
shall have an additional thirty (30) days from the effective date of termination to
remove all of TENANT's equipment from the Leased Site.
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All notices hereunder must be in writing and, unless otherwise provided herein, shall be
deemed validly given if sent by certified mail, return receipt requested, addressed as follows (or
to any other mailing address which the party to be notified may designate to the other party by
such notice) or as otherwise provided under applicable state law. Notice by any other method
(whether by hand -delivery, overnight delivery service, or otherwise) shall only be deemed
effective upon receipt by the intended recipient. Should Westlake or TENANT have a change of
address, the other party shall immediately be notified as provided in this Paragraph of such
change. Unless Westlake otherwise specifies in writing, rent checks from TENANT shall be
sent to the person listed below to whom notices are sent.
Ground and Tower Lease Agreement — Page 8
TENANT: BelWave Communications, Inc.
P.O. Box 121729
Fort Worth, TX 76121
OWNER: The Town of Westlake, Texas
Attn: Town Manager
Address: 2650 Ottinger Road
Westlake, Texas 76262
Telephone Number: (817) 430-0941
Facsimile Number: (817) 430-1812
With a copy to: Boyle & Lowry, L.L.P.
Atm: L. Stanton Lowry
4201 Wingren, Suite 108
Irving, Texas 75062
Telephone Number: (972) 650-7100
Facsimile Number: (972) 650-7105
Should Westlake, at any time during the term of this Lease, sell, lease, transfer or otherwise
convey all or any part of OWNER's Property to any transferee other than TENANT, then such
transfer shall be under and subject to this Lease and all of TENANT's rights hereunder.
A. Westlake warrants and agrees that neither Westlake, to its knowledge, or any
third party has used, generated, stored or disposed of, or permitted the use,
generation, storage or disposal of, any Hazardous Material (as defined in
Paragraph 14.B.) on, under, about or within OWNER's Property which would
prohibit the execution of this Lease. Westlake and TENANT each agree that they
will not use, generate, store or dispose of any Hazardous Material (as defined in
Paragraph 14.B.) on, under, about or within OWNER's Property in violation of
any applicable law or regulation. TENANT agrees that it will conduct all of its
operations and activities on the Leased Site in compliance with all applicable
environmental laws.
B. Westlake and TENANT each agree to defend and indemnify, to the extent
allowed by law, the other and the other's partners, affiliates, agents and
employees against any and all losses, liabilities, claims and/or costs (including
reasonable attorneys' fees and costs) arising from any breach of any warranty or
agreement contained in Paragraph 14.A. As used in Paragraph 14.A., "Hazardous
Material" shall mean any substance, chemical or waste identified as hazardous,
toxic or dangerous in any applicable federal, state or local law or regulation
(including petroleum and asbestos).
A. In the event the whole of OWNER's Property, including without limitation the
Leased Site and the water tower, shall be taken or condemned, either temporarily
Ground and Tower Lease Agreement — Page 9
or permanently, for public purposes, or sold to a condemning authority under
threat of condemnation to prevent taking, then this Lease shall forthwith
automatically cease and terminate.
B. Westlake shall receive the entire condemnation award for land, the water tower
and such other improvements as are paid for by Westlake, and TENANT hereby
expressly assigns to Westlake any and all right, title and interest of TENANT
now or hereafter arising in and to any such award. TENANT shall have the right
to recover from such authority, but not from Westlake, any compensation as may
be awarded to TENANT on account of the leasehold interest, moving and
relocation expenses, and depreciation to and removal of the personal property and
fixtures of TENANT.
Till 13►�`1
Westlake hereby reserves any and all lien rights, statutory or otherwise concerning TENANT's
communications facilities and other fixtures and equipment at the Leased Site, should TENANT
default under the terms of this Lease.
[ice1�:�
A. TENANT shall be liable for and shall pay to the applicable taxing authority if
billed directly to TENANT, or to Westlake if billed to Westlake, upon thirty (30)
days prior written notice from Westlake, any and all taxes and assessments levied
against any personal property or trade or other fixtures placed by TENANT in or
about the Leased Site.
B. TENANT shall pay any increases in real property taxes levied against OWNER'S
Property, including the Tower, as a result of the improvements constructed by
TENANT on the Leased Site. Under no circumstances will Westlake be
responsible or liable for any taxes resulting in whole, or in part, from this Lease
or TENANT's use of the Leased Site.
Westlake warrants and agrees that TENANT, upon providing the SERVICES and performing
the covenants herein provided, shall peaceably and quietly have and enjoy the Leased Site
As a consequence of the proposed twenty-four (24) hour daily basis of operation by TENANT,
Westlake acknowledges that any action undertaken or permitted by Westlake in making repairs,
alterations, additions or improvements to the Leased Site or the water tower that might interfere
with, suspend, cut-off or terminate access to or use by TENANT of the Leased Site or
TENANT's antennas or equipment, including without limitation, air-conditioning and utilities
thereto, could cause inconvenience, expense and economic loss to TENANT. Therefore,
Westlake agrees (i) to use its best efforts to minimize such inconvenience, possible loss or
expense to TENANT by using its best efforts not to cause or permit any interruption or interfere
with the operations of TENANT's antennas or equipment, particularly during the hours of
Ground and Tower Lease Agreement — Page 10
7:00 a.m. to 10:00 a.m. and 4:00 p.m. to 7:00 p.m. on any weekday, and (ii) to use its best efforts
to give TENANT advance notice of any repairs, alterations, additions or improvements to be
made with respect to the maintenance and operation of the water tower and the Leased Site or of
any planned shut downs associated with the water tower for scheduled or routine maintenance
that might adversely affect the operation of TENANT's communications facility, antennas or
equipment. Provided, however, that TENANT acknowledges and agrees that Westlake shall
maintain the absolute right to undertake any action necessary on or near the Leased Site or water
tower in the event of an emergency or to protect the health, safety or welfare of the public, as
determined by the sole discretion of Westlake.
Westlake and TENANT represent to each other that they have not negotiated with any real estate
broker in connection with this Lease. Westlake and TENANT agree that should any claim be
made against the other for a real estate broker's commission, finder's fee or the like by reason of
the acts of such party, the party upon whose acts such claim is predicated shall indemnify and
hold the other party free and harmless from all losses, costs, damages, claims, liabilities and
expenses in connection therewith (including, but not limited to, reasonable attorneys' fees) and
shall defend such action by legal counsel reasonably acceptable to the indemnified other party.
i
A. TENANT, at the request of Westlake, shall provide Westlake with a certificate
stating, if true,: (i) that this Lease is unmodified and in full force and effect (or, if
there has been any modification, that the same is in full force and effect as
modified and stating the modification); (ii) whether or not, to TENANT's
knowledge, there are then existing any set -offs, or defenses against the
enforcement by Westlake of any of TENANT's agreements, terms, covenants or
conditions hereof (and, if so specifying the same); and (iii) the dates, if any, to
which the rent has been paid in advance.
B. Westlake, at the request of TENANT, shall provide TENANT with a certificate
stating: (i) whether Westlake has any claim against TENANT and if so, stating
the nature of such claim; (ii) that Westlake recognizes TENANT's right to
TENANT's antennas, equipment and other property; (iii) that TENANT has the
right to remove TENANT's equipment and other property from the Leased Site
notwithstanding that same may be considered a fixture under local law; and
(iv) that Westlake has no interest in and disclaims any interest to TENANT's
equipment and other property.
A. Westlake warrants and agrees that Westlake is seized of good and sufficient title
to and interest in the Leased Site and has full authority to enter into and execute
this Lease and that there are no undisclosed liens, judgments or impediments of
title on OWNTER's Property that would affect this Lease.
B. This Lease, including attached exhibits that are hereby incorporated by reference,
incorporates all agreements and understandings between Westlake and TENANT,
Ground and Tower Lease Agreement — Page 11
and no verbal agreements or understandings shall be binding upon either
Westlake or TENANT, and any addition, variation or modification to this Lease
shall be ineffective unless made in writing and signed by the parties.
C. Westlake agrees that OWNER's Property (including, without limitation, the water
tower), and all improvements, comply and during the term of this Lease shall
continue to comply with all building, life/safety, disability and other laws, codes
and regulations of any applicable governmental or quasi -governmental authority.
All such compliance shall be accomplished at Westlake's sole cost and expense.
D. This Lease and the performance hereof shall be governed, interpreted, construed
and regulated by the laws of the State of Texas.
E. Within thirty (30) days of the execution of this Lease, Westlake and TENANT
shall execute a mutually agreed Service Level Agreement that shall remain in
force and effect during the term of this Lease, and further, shall become a part of
the Lease Agreement as Exhibit "C" Said Service Level Agreement shall
address matters concerning, but not necessarily limited to, network availability,
latency, packet loss, and response and repair time. The Service Level Agreement
may be amended from time -to -time during the term of this Lease as deemed
necessary and mutually agreed to by both Westlake and TENANT. Any agreed
to amendment(s) shall be executed in writing by both Westlake and TENANT.
F. This Lease, and each and every covenant and condition herein, is intended to
benefit the Leased Site and shall extend to and bind the heirs, personal
representatives, successors and assigns of the parties.
G. The parties agree that all of the provisions hereof shall be construed as both
covenants and conditions, the same as if the words importing such covenants and
conditions had been used in each separate paragraph.
H. The parties acknowledge that each has had an opportunity to review and negotiate
this Lease and have executed this Lease only after such review and negotiation.
The language of each part of this Lease shall be construed simply and according
to its fair meaning, and this Lease shall not be construed more strictly in favor or
against either party.
I. At Westlake's option, this Lease shall be subordinate to any mortgage by
Westlake which from time to time may encumber all or any part of the Leased
Site, provided that every such mortgagee shall recognize (in writing and in a form
acceptable to TENANT) the validity of this Lease in the event of a foreclosure of
Westlake's interest and also TENANT's right to remain in occupancy and have
access to the Leased Site as long as TENANT is not in default of this Lease.
TENANT shall execute whatever instruments may reasonably be required to
evidence this subordination, non -disturbance and attornment agreement. If, as of
the date of execution of this Lease, there is any deed of trust, ground lease or
other similar encumbrance affecting OWNER'S Property, Westlake agrees to use
its best efforts in cooperating with TENANT to obtain from the holder of such
Ground and Tower Lease Agreement — Page 12
encumbrance an agreement that TENANT shall not be disturbed in its possession,
use and enjoyment of the Leased Site.
J. If Westlake breaches this Lease in any manner or substantially breaches any
material term contained in any mortgage or deed of trust superior to TENANT's
estate under this Lease (other than any mortgage or deed of trust for which
TENANT has obtained a non -disturbance agreement in accordance with
Paragraph 22.H.) or contained in any lease under which Westlake holds title to
any portion of OWNER's Property, and if Westlake fails to commence to cure
such breach within thirty (30) days after receiving a written notice from
TENANT exactly specifying the violation (or if Westlake fails thereafter to
diligently prosecute the cure to completion), then TENANT may enforce each of
its rights and remedies under this Lease or provided by law or it may (although it
shall not be obligated to do so) cure Westlake's breach or perform Westlake's
obligations (on Westlake's behalf and at Westlake's respective expense) and
require Westlake to reimburse (or offset against rent, if applicable) all reasonable
expenses incurred in doing so plus interest (from the date such expenses are
incurred until reimbursement) at ten percent (10%) per annum.
K. In the event that (i) the Leased Site is encumbered by or subject to any debts and
liens, and (ii) Westlake defaults in the payment and/or performance of said debts
and liens, TENANT may, at its option and without obligation, cure or correct
Westlake's defaults, and upon doing so, TENANT shall be subrogated to any and
all rights, superior titles, liens, and equities owned or claimed by the holders of
such debts and liens, and TENANT shall be entitled to deduct and set-off against
all rents that next may be or may become due under this Lease until all sums so
paid by TENANT to cure or correct Westlake's defaults have been deducted and
set-off in full against such rents.
L. If any portion of this Lease is declared by a court of competent jurisdiction to be
invalid or unenforceable, then such portion shall be deemed modified to the
extent necessary in such court's opinion to render such portion enforceable and, as
so modified, such portion and the balance of this Lease shall continue in full force
and effect.
M. If a dispute arises between the parties relating to this Lease, the parties agree to
meet to try to resolve the dispute. Such meeting shall be attended by individuals
with decision-making authority to attempt, in good faith, to negotiate a resolution
of the dispute prior to pursuing other available remedies. If, within thirty (30)
days after such meeting, the parties have not succeeded in negotiating a resolution
of the dispute, either party may request that such dispute be resolved through
non-binding mediation. If either party institutes any action or proceeding in court
to enforce any provision hereof, or any action for damages for any alleged breach
of any provision hereof, then the prevailing party in such action or proceeding
shall be entitled to receive from the non -prevailing party such amount as the court
may adjudge to be reasonable attorneys' fees for the services rendered to the
prevailing party, together with its other reasonable litigation expenses.
Ground and Tower Lease Agreement — Page 13
N. In addition to the other remedies provided for in this Lease, Westlake and
TENANT shall be entitled to immediate restraint by injunction of any violation of
any of the covenants, conditions or provisions of this Lease.
O. The captions of the paragraphs of this Lease are for convenience of reference only
and shall not affect the interpretation of this Lease.
P. Concurrently with the execution of this Lease, Westlake shall execute before a
notary and deliver to TENANT for recording a "Memorandum of Lease
Agreement" in the form of the attached Exhibit "B", with the same Exhibits "A-
1" "A-2" and "A-3" as are attached to this Lease. Such Memorandum shall not
disclose any financial terms, unless required to do so by the laws of such
jurisdiction.
IN WITNESS WHEREOF, Westlake and TENANT have duly executed this Lease as of the date
first above written.
BELWAVE COMMUNICATIONS, INC.:
By:
Name: ,
Its: V
Tax No.: 3 v36G,�-6t--�
Cihiil►l al'.�1
Town of Westlake, TEXAS, a municipal corporation
Trent O. Petty, Town Manager
1 own Attorney
Ground and Tower Lease Agreement — Page 14