Ordinance No. 10,440 (2) As in Paper Form in the Ordinance BookORDINANCE NO. 10,440
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING FIVE SITE LEASE AGREEMENTS WITH T-MOBILE TEXAS, L.P.,
FOR THE ERECTION AND MAINTENANCE OF ANTENNA FACILITIES AT CITY
HALL, MCELROY PARK, BARKALOO PARK, EAST LITTLE LEAGUE PARK,
AND PROPERTY NEAR PINEHURST AND STATE HIGHWAY 146; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute a Site Lease Agreement with T-Mobile Texas, L.P., for the erection and maintenance
of antenna facilities at City Hall. A copy of said agreement is attached hereto, marked Exhibit "A" and
made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute a Site Lease Agreement with T-Mobile Texas, L.P., for the erection and maintenance
of antenna facilities at McElroy Park. A copy of said agreement is attached hereto, marked Exhibit "B"
and made a part hereof for all intents and purposes.
Section 3: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute a Site Lease Agreement with T-Mobile Texas, L.P., for the erection and maintenance
of antenna facilities at Barkaloo Park. A copy of said agreement is attached hereto, marked Exhibit "C"
and made a part hereof for all intents and purposes.
Section 4: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute a Site Lease Agreement with T-Mobile Texas, L.P., for the erection and maintenance
of antenna facilities at East Little League Park. A copy of said agreement is attached hereto, marked
Exhibit "D" and made a part hereof for all intents and purposes.
Section 5: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute a Site Lease Agreement with T-Mobile Texas, L.P., for the erection and maintenance
of antenna facilities at property near Pinehurst and State Highway 146. A copy of said agreement is
attached hereto, marked Exhibit "E" and made a part hereof for all intents and purposes.
Section 6: This ordinance shall take effect immediately
City Council of the City of Baytown.
UCED, READ and PASSED by the affirmative
121h day of October, 2006.
H.
A
APPROVED AS TO FORM:
G ACIO�Z, SR., i Attorney
R:\Karen\Files\City Comeil\0rdinances\2006\00ober 12\T-MobileOrdinance.doc
and after its passage by the
the City Council of the City of
Mayor
SITE LEASE WITH OPTION
THIS SITE LEASE WITH OPTION (this "Lease") is by and between City of Baytown ("Landlord") and T-Mobile
Texas, L.P., a Delaware Limited Partnership ("Tenant").
Option to Lease.
(a) In consideration of the payment of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) (the "Option
and Application Fee") by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease the use of
a portion of the real property described in the attached Exhibit A (the "Property"), on the terms and
conditions set forth herein (the "Option"). The Option shall be for an initial term of twelve (12) months,
commencing on the Effective Date (as defined below) (the "Option Period").
(b) During the Option Period, and during the term of this Lease, Landlord agrees to cooperate with Tenant in
obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the
Premises (as defined below) from all applicable government and/or regulatory entities (including, without
limitation, zoning and land use authorities, and the Federal Communications Commission ("FCC")
("Governmental Approvals"). Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord,
to obtain a title report, and apply for zoning approvals, variances, and land -use permits. Landlord expressly
grants to Tenant a right of access to the Property to perform surveys, soils tests, and other engineering
procedures or environmental investigations (collectively "Investigations") on the Property necessary to
determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications,
system design, operations and Governmental Approvals. After the performance of any Investigations on the
Property, Tenant shall promptly restore the Property to the same or better condition that the Property was in
prior to such Investigations. Notwithstanding the foregoing, Tenant may not seek to change'the zoning
classification of the Property without first obtaining Landlord's prior written consent and all requests for
Governmental Approvals shall be subject to the Landlord's review and approval prior to their submission.
During the Option Period, Landlord agrees that it will not interfere with Tenant's efforts to secure other
licenses and permits or authorizations that relate to other property; provided such licenses, permits and
authorizations are consistent with the purpose of this Lease which is to erect and maintain tower facilities for
use by the Landlord and the Baytown Area Water Authority. During the Option Period, Tenant may exercise
the Option by so notifying Landlord in writing, at Landlord's address in accordance with Section I 1 hereof.
(c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord hereby leases to
Tenant the use of that portion of the Property sufficient for placement of the Antenna Facilities (as defined
below) together with all necessary space and easements for access and utilities, as generally described and
depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises"). Prior to the
installation of any tower and related infrastructure or any substantial modification thereof on the Premises,
Tenant shall submit a metes and bounds description of the site location and site specific design, construction
and installation plans to Landlord in writing. Tenant shall not install until-the<submitted plans and lists have
been approved in writing by Landlord, which approval shall not be unreasonably delayed or withheld but
may contain improvements necessary or desired by the Landlord to further the purposes of the Property and
the Landlord's use of the same. Tenant's mounting location on the New Tower will be at the;height of 160',
and Landlord shall have the right to mount at any other height structurally feasible which will not interfere
with Tenant's or preexisting uses. The height of the New Tower shall be 160' AGL (Above Ground Level).
2. Term.
a. The initial term of this Lease shall be five (5) years commencing on the date of the exercise of the Option
(the "Commencement Date"), and terminating at midnight on the last day of the initial term (the "Initial
Tern").
b. Tenant shall, have the right to extend this Lease for five (5) additional, five-year terms (each a "Renewal
Term"); provided that the Tenant is not in default of any of the provisions of this Lease at the time of
renewal. Each Renewal Term shall be on the same terms and conditions as set forth herein, except that Rent
shall be increased by fifteen percent (15%) of the Rent paid over the preceding term This Lease may be
renewed by the Tenant for the successive Renewal Terms. In each case, the option to renew may be
exercised only if (i) Tenant gives Landlord written notice of Tenant's intention to renew the Lease at least
ninety (90) days before the expiration of the then -current term, and (ii) Tenant is not in default of any
provision under this Lease at the time such notice is given and at the time of renewal. All of the terms and
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Market: Houston �1
conditions hereof shall apply during the Renewal Terms, unless otherwise modified in writing by the parties
hereto.
Within thirty (30) days after the expiration of this Lease, Tenant shall surrender to the Landlord possession of
the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the expiration of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after expiration of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same. Any holding over by Tenant after expiration shall
not constitute a renewal or extension or give Tenant any rights in or to the Premises. If Tenant and Landlord
are in good faith negotiations for an extension of the Lease or for a new lease, which negotiations shall in no
event exceed sixty (60) days, Tenant shall pay, as liquidated damages, the then current fair market rental
value of the Premises and the improvements thereon, as determined by the Landlord, calculated on a per diem
basis, multiplied by two (2) for the period during which Tenant possesses the Premises beyond the expiration
hereof. Such amount is reasonable in the light of the anticipated or actual harm to Landlord caused by the
Tenant's holding over, the difficulties of proof of loss, and the inconvenience of otherwise obtaining an
adequate remedy.
d. Within thirty (30) days after the termination of this Lease, Tenant shall surrender to the Landlord possession
of the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the termination of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after termination of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same.
3. Permitted Use. The Premises may only be used by Tenant for the transmission and reception of radio communication
signals and for the construction, installation, operation, maintenance, repair, removal or replacement of related
facilities, tower and base, antennas, microwave dishes, equipment shelters and/or cabinets. No other uses shall be
permitted on or within the Premises. It is expressly understood and agreed that the Tenant shall not use the Premises
for any unlawful purpose in violation of any valid and applicable law, regulation, or ordinance of the United States, the
State of Texas, or the City of Baytown or other lawful authority having jurisdiction over the Premises, but rather shall
conform to all such laws, regulations and ordinances. Tenant shall not cause, permit or suffer any waste, damages, or
injury to, any portion *df the Premises. Tenant shall not Wd the Premises unless and until the Landlord has approvediri"
writing the Tenant's improvements and Antenna Facilities. If Landlord fails to approve the initial plans or subsequent
plans in such a manner that Tenant's intended use of the Premises will be materially impaired, Tenant may terminate
this Lease without further liability to Landlord.
4. Rent.
(a) Tenant shall pay Landlord, as rent, SEVEN HUNDRED FIFTY AND NO/100 DOLLARS ($750.00) per
month ("Rent"). Rent shall be payable within twenty (20) days following.the Commencement Date prorated
for the remainder of the month in which the Commencement Date falls and thereafter Rent will be payable
monthly in advance by the fifth day of each month to City of Baytown at Landlord's address specified in
Section 11 below. If this Lease is terminated at a time other than on the last day of a month for a reason other
than a default by the Tenant, Rent shall be prorated as of the date of termination and all prepaid Rent shall be
refunded to Tenant. . ........ ,
(b) If Tenant subleases space within the Premises to any additional Carrier, the monthly Rent that Tenant pays
Landlord shall be increased by FIVE HUNDRED AND NO/100 DOLLARS ($500.00) per additional Carrier,
prorated for any partial months, and any such Rent increase shall be effective as of the commencement date of
the additional Carrier's sublease with Tenant. Tenant shall provide written proof, satisfactory to the
Landlord's City Manager, of the additional Carrier's sublease with Tenant and of the effective date of the
same within ten (10) days of such effective date. If Tenant's sublease with any additional Carrier expires or
terminates for any reason, the monthly Rent that Tenant pays Landlord pursuant to this provision solely with
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Market: Houston
respect to such expiring or terminating Carrier's sublease shall cease effective as of the termination date of
the sublease or the date that the Carrier's antenna facilities are removed from the Premises, whichever is
later. Tenant shall provide written proof of the termination, satisfactory to the Landlord's City Manager, of
the sublease of any additional Carrier. As used herein, "Carrier" shall mean any PCS, Cellular, or ESMR
provider or paging company, but shall not mean any governmental entity. Any additional third -party Carrier
shall be bound by the terms and conditions of Section 5 of this Lease and shall in no way interfere with the
use of the Property by the Landlord, or lessees or licensees of the Landlord with rights in the Property prior in
time to this Lease. Tenant may sublease the Premises without Landlord's consent to any Carrier (as defined
herein), but Tenant will provide Landlord written notice of any such sublease. Any other sublease of the
Premises by Tenant will be subject to Landlord's prior written consent.
(c) Tenant's right to possession and all of Landlord's obligations hereunder are expressly contingent upon the
prompt payment of Rent, and the use of the Premises by Tenant is obtained only on the condition that Rent is
paid on time. Payment of Rent is an independent covenant and all monies received by Landlord shall be
applied first to non -rent obligations of Tenant and then to Rent regardless of any notation on the check. At
any time after Landlord's receipt of a check from Tenant for Rent or for a maintenance fee, such check is not
honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any
reason, Landlord may at any time thereafter, at Landlord's sole option, require that all Rent, maintenance
fees, and other sums due from Tenant hereunder be paid by electronic funds transfer. Failure to pay any Rent
or maintenance fee as and when required will not only be considered a breach of this Lease, but also result in
interest, as specified in Section 4(d), being charged on the delinquent rental and/or maintenance payments
commencing on the date the payment first becomes overdue.
(d) If Tenant is delinquent in the payment of any rental fees for 10 days or more, after receipt of written notice from
Landlord, Tenant agrees to pay in addition to such rental, interest on the delinquent amount at the rate established
by Section 2251.025 of the Texas Goverment Code.
5. Interference. Tenant and its sublessees shall not use the Premises in any way which interferes with the use of the
Property by Landlord, or lessees or licensees of Landlord with rights in the Property prior in time to this Lease.
Furthermore, Tenant shall not permit any interference with the Landlord's antenna facilities placed on the any of
Tenant's tower facilities, whether by Tenant or any sublessee. Similarly, Landlord shall not use, nor shall Landlord
permit its lessees, licensees, employees, invitees or agents to use, any portion of the Premises in any way which
unreasonably interferes with the operations of Tenant. An unreasonable interference shall be deemed a material breach
by the interfering party, who shall, upon written notice from the other, be responsible for terminating said interference.
In the event any interference as prohibited herein does not cease within 72 hours, the parties acknowledge that continuing
interference may cause irreparable injury and, therefore, the injured party shall have the right, in addition to any other rights
that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately
upon written notice.
6. Improvements: Utilities: Access.
(a) Tenant shall have the right and obligation, at its expense, to erect and maintain on the Premises, in
accordance with good engineering practices and with all applicable FCC rules and regulations,
improvements, personal property and facilities necessary to operate its communications system, including,
with limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment
shelters and/or cabinets and related cables and utility lines and a location based system, including, without
limitation, antenna(s), coaxial cable, base units and other associated equipment (collectively, the "Antenna
Facilities"), as such location based system may be required by any LoUnty, state or federal
agency/department. Tenant's installation of the Antenna Facilities shall be done according to plans
developed by an engineering firm that is knowledgeable in tower construction, sealed in accordance with
State of Texas requirements, and approved in advance in writing by the Landlord. Upon completion of
construction, Tenant shall provide the Landlord with as -built drawings of the Antenna Facilities and the
improvements installed on the Premises, which show the actual location of all equipment, transmission lines
and improvements consistent with the plans approved by the Landlord. The drawings shall be accompanied
by a complete and detailed inventory of all equipment, personal property, Antenna Facilities and any other
items of Tenant's on the Property. Tenant may with the prior written consent of the Landlord alter, replace,
expand, enhance and upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall
cause all construction to occur lien -free and in compliance with all applicable laws and ordinances. Landlord
acknowledges that it shall not unreasonably interfere with any aspects of construction, except as required to
ensure compliance with all applicable laws, codes, and Lease terms. All Antenna Facilities erected by the
Tenant shall remain the exclusive property of Tenant until the expiration or termination of this Lease.
Subject to the provisions of Section 16, below, upon expiration or termination of the Lease and unless
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Market: Houston
otherwise directed by the Landlord, ownership of the Tenant erected New Tower (as defined below) shall be
conveyed by bill of sale by Tenant to Landlord with all facilities free and clear of any or all liens occasioned
by the activities of the Tenant.
(b) Tenant, at its expense, may restrict a third parry's access to the Antenna Facilities in a manner which has
been approved in advance in writing by the Landlord. However, Tenant shall not have the right to prohibit or
otherwise restrict, the Landlord's access to the Antenna Facilities, as Landlord has the right to access and
inspect the Premises at all times during the Initial Term and any Renewal Terms; provided that Landlord
shall make no hard electrical connections to Tenant's equipment.
(c) Tenant, shall, at Tenant's expense, keep and maintain the Antenna Facilities now or hereafter located on the
Property in good repair and in a manner acceptable to the Landlord during the term of this Lease, normal wear and
tear and casualty excepted. Tenant shall keep the Premises free of debris and anything reasonably determined by
the Landlord to be of a dangerous, noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or interference. Tenant shall promptly notify Landlord of any and all damages resulting from, arising
out of; or caused to the Premises and City property surrounding the Premises, including, but not limited to,
structural damages, electrical damages, damages to fencing, irrigation systems or landscaping caused by Tenant's
operations, or by Tenant, its officers, agents, employees and invitees. Tenant shall be solely responsible for the
costs and the repair of all such damages and such repairs and/or replacements shall be completed within thirty (30)
days or such other time as agreed to by the parties and be acceptable to Landlord. The failure to successfully
complete repairs and/or replacements in a timely manner to the satisfaction of Landlord, and upon 30 days written
notice, is grounds for termination of the Lease by Landlord.
(d) At Tenant's expense, Tenant may, subject to the Landlord's prior written approval, install utilities, and
improve the present utilities on the Property (including, but not limited to, the installation of emergency
power generators). Landlord agrees to use reasonable efforts in assisting Tenant to acquire necessary utility
service. Tenant shall install separate meters for utilities used on the Property by Tenant. The installation,
maintenance and repair of such meters as well as the costs therefor shall be the responsibility of Tenant. The
Tenant shall be responsible for and pay when due all bills or invoices for utilities used on the Property during
the Initial Term and all Renewal Terms.
(e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant a non-exclusive
license to use the Property for ingress, egress, utilities and access (including access for the purposes described
in Section 1) to the Premises adequate to install and maintain utilities approved by the Landlord, which
include, but are not limited to, the installation of power and telephone service cable, and to service the
Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any Renewal Term;
provided however, the location of such utilities and access thereto is subject to the prior written approval of
the Landlord's City Manager. The license provided hereunder shall have the same term as this Lease.
(f) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises at all times during the Initial Term
of this Lease and any Renewal Term, except during a -mandatory evacuation of the area in which the Premises
is located or other force majeure events.
(g) If there is an existing tower on the Premises currently used by Landlord for radio transmissions ("Existing
Tower"), Tenant, upon written request of the Landlord, agrees to replace the Existing Tower with a new
tower ("New Tower"), at Tenant's sole cost and expense. Landlord shall have the option to keep the Existing
Tower; otherwise, Tenant shall dispose of the Existing Tower at Tenant's expense.
(h) Tenant, at its sole cost and expense, agrees to install Landlord's initial cabling and antennas ("Landlord's
Facilities") on the New Tower on the Premises. The acquisition of such cabling and antennae shall be at
Landlord's cost.
(i) After the initial installation of Landlord's cabling and antennas on the Tenant's New Tower as provided in
subsection (h) of this section, Landlord shall be responsible for the maintenance of Landlord's cabling and
antennas. After the initial installation of Landlord's Facilities, Landlord and its contractors and
subcontractors must notify Tenant before doing any installation, upgrades, modifications, repair, maintenance
or other work on the New Tower. After the initial installation of Landlord's Facilities, Landlord shall be
solely responsible for all costs and expenses relating to the operation, repair, maintenance and replacement of
Landlord's Facilities, including, without limitation, utility service charges. Landlord's contractors and
subcontractors who perform work on the New Tower must obtain and maintain the same types and amounts
of insurance coverage that Tenant's contractors are required to maintain, and Tenant shall be named as an
additional insured on all liability policies maintained by Landlord's contractors and subcontractors and be
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Market: Houston
provided certificates of such insurance. Landlord will not be required to pay Tenant rent with respect to
Landlord's Facilities. Landlord warrants and represents to Tenant that only Landlord's approved contractors,
and not its employees or agents, will climb and perform any work on the New Tower on behalf of Landlord.
7. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further
liability as follows:
(a) upon thirty (30) days' written notice pursuant to Section 11 by Landlord if Tenant fails to cure a default for
payment of amounts due under this Lease within that thirty (30) day period;
(b) upon thirty (30) days' written notice pursuant to Section 11 by Tenant, if Tenant notifies Landlord in writing
of unacceptable results of any title report, environmental or soil tests prior to Tenant`s installation of the
Antenna Facilities on the Premises, or if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels
any license (including, without limitation, an FCC license), permit or any Governmental Approval necessary
to the installation and/or operation of the Antenna Facilities or Tenant's business; or
(c) upon ninety (90) days' written notice pursuant to Section 11 by Tenant if through no fault of the Tenant, the
Premises or the Antenna Facilities are, or become unacceptable under Tenant's design or engineering
specifications for its Antenna Facilities or the communications system to which the Antenna Facilities
belong.
8. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other
rights granted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on
written -notice pursuant to Section 11 hereof, to take effect immediately, if the other party (i) fails to perform any
covenant for a period of thirty (30) days after receipt of written notice thereof to cure, or (ii) commits a material breach
of this Lease and fails to diligently pursue such cure to its completion after sixty (60) days' written notice to the
defaulting parry.
If Landlord is compelled or elects to pay any sum of money or do any acts that require the payment of money by reason
of the Tenant's failure or inability to perform any of the provisions of this Lease after passage of any notice and cure
period provided under any other provisions of this Lease, Tenant shall, within ten (10) days of the demand therefor,
reimburse Landlord for such reasonable, actual sums, and all such sums shall bear interest at the rate specified in
Section 2251.025 of the Texas Government Code, as amended, from the date of expenditure until the date of such
reimbursement. Other sums payable under this Lease that are not paid by Tenant when due shall bear interest at the
same rate from and after the payment due date until the date Landlord receives payment thereof.
9. Taxes. Tenant shall pay any personal property tax, real property tax or any other tax or fee which arises out of or in
connection with the Tenant's use and occupancy of the Premises and/or the presence or installation of the Antenna
Facilities of the Tenant or its sublessees until (i) the New Tower any related facilities are conveyed to and accepted by
the Landlord, and (ii) Tenant removes its Antenna Facilities from the Premises in accordance with the terms of this
- -'Lease; provided, however, thatTenant shall pay its pro rata share of -any such taxes prior to- any -conveyance rto
Landlord. For all purposes of this Lease, any tax assessment or charge imposed upon the Antenna Facilities, whether
classified as real property or personal property, shall be considered personalty taxes. Tenant shall make all such
payments directly to the charging authority prior to any delinquency and before any fine, interest or penalty shall
become due or be imposed by operation of law for their nonpayment. Tenant may challenge any personal property or
real property tax assessments that may affect Tenant. If Landlord receives notice of any personal property or real
property tax assessment against the Tenant, which may affect Tenant and is attributable to Tenant's use and occupancy
of the Premises and/or the presence or installation of the Antenna Facilities, Landlord shall provide timely notice of the
assessment to Tenant sufficient to allow Tenant to contest to or challenge such assessment. Further, Landlord shall
provide to Tenant upon request any public information requested by the Tenant subject to the fees specified in Section
2-616 of the Code of Ordinances, Baytown, Texas. If the Tenant contests any tax, assessment or charge, the Tenant
may, unless otherwise required by law, withhold or defer only that portion of the payment, which is the subject of
Tenant's contest, or pay under protest. Prior to the date any contested taxes, assessment, or charge shall become due, the
Tenant-shaH perfect its contest of any tax, assessment.or.charge and.advise the Landlord in .YtTiting.that thaTenant has .
contested the same and the ground.
10 Insurance Release, and Indemnification.
(a) Disclaimer of Liability: Landlord shall not at any time be liable for injury or damage occurring to any person
or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use,
operation, condition or dismantling of the tower(s) or Tenant's Antenna Facilities.
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Market: Houston
(b)
inriPmnif entinn-
TENANT SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNWY, HOLD
HARMLESS, AND DEFEND LANDLORD, ITS OFFICERS, BOARDS,
COMMISSIONS, EMPLOYEES, AGENTS, ATTORNEYS, CONTRACTORS
(HEREAFTER REFERRED TO AS "INDEMNITEES'), FROM AND AGAINST:
(I) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLA1[MS3, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
ACT OR OMISSION OF TENANT, ITS PERSONNEL, EMPLOYEES,
AGENTS, CONTRACTORS, OR SUBCONTRACTORS (HEREINAFTER
REFERRED TO AS "INDEMNITORS" ), RESULTING IN PERSONAL
INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY
PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE
OR INTANGIBLE PROPERTY, LIBEL, SLANDER, INVASION OF
PRIVACY AND UNAUTHORIZED USE OF ANY TRADEMARK, TRADE
NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY OTHER
RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY
ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, USE
OR CONDITION OF 'I PROPERTY OR TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY
FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR
REGULATION; PROVIDED, HOWEVER, THAT THE INDEMNITIES
PROVIDED BY TENANT HEREUNDER SHALL NOT EXTEND OR
APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES, PENALTIES,
LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES WHICH
ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE WORKING
ON LANDLORD'S FACILITIES ON THE NEW TOWER;
(II) ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES- "AND -,-EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER
CONSULTANTS), WHICH ARE IMPOSED UPON, INCURRED BY OR
ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR
SUPPLIES PROVIDED OR SUPPLIED TO TENANT, ITS
CONTRACTORS OR SUBCONTRACTORS, FOR THE INSTALLATION,
CONSTRUCTION, OPERATION, MAINTENANCE OR USE OF THE
PROPERTY OR TENANT'S ANTENNA FACILITIES, AND, UPON THE
WRITTEN REQUEST OF LANDLORD, TENANT SHALL CAUSE SUCH
CLAIM OR LIEN COVERING 'LANDLORD'S "PROPERTY —TO BE
DISCHARGED OR BONDED WITHIN THIRTY (30) DAYS FOLLOWING
SUCH REQUEST; AND/OR
(M) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSE
(INCLUDING, WITHOUT LIIVIITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
Site Number: A3DO158 Version 10-2-01
Site Name: Baytown City HaH 6
Market: Houston
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
FINANCING OR SECURITIES OFFERING BY TENANT OR ITS
AFFILIATES FOR VIOLATIONS OF THE COMMON LAW OR ANY
LAWS, STATUTES, OR REGULATIONS OF THE STATE OF TEXAS OR
UNITED STATES, INCLUDING THOSE OF THE FEDERAL SECURITIES
AND EXCHANGE COMMISSION, WHETHER BY TENANT OR
OTHERWISE.
TENANT'S OBLIGATION TO INDEMNIFY INDEMNITEES UNDER THIS
LEASE SHALL EXTEND TO CLAIMS, LOSSES, AND OTHER MATTERS
COVERED HEREUNDER THAT ARE CAUSED IN PART OR CONTRIBUTED
TO BY I NEGLIGENCE OF ONE OR MORE INDEMNITEES. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND LANDLORD FROM THE CONSEQUENCES OF (I) THE
INDEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND (I1) THE CONSEQUENCES OF THE
INDEMNITORS' NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE
OR CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. THIS
INDEMNITY SHALL CONTINUE NOTWITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE. THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM,
LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE
INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE
OF LANDLORD, ITS EMPLOYEES, AGENTS OR CONTRACTORS,
UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY.
(c) Assumption of Risk: Tenant undertakes and assumes for its officers, agents, contractors, subcontractors and
employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions whether
patent or latent, obvious or undiscoverable, and regardless of whether the Landlord should have known of
such dangerous conditions, if any, on or about the Property. After the initial installation of Landlord's
Facilities on the New Tower, and subject,to.the provisions of the last sentence of Section 6(i), in connection
with any work being performed by Landlord or its employees on the Premises, Landlord undertakes and
assumes for its officers and employees (collectively "Landlord" for the purpose of this section), all risk of
dangerous conditions whether patent or latent, obvious or undiscoverable, and regardless of whether the
Landlord should have known of such dangerous conditions, if any, on or about the Premises. Each party will
notify the other party if it becomes aware of any dangerous conditions on the Premises and/or New Tower,
but Landlord will have no duty to inspect the New Tower.
TENANT HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE INDEMNITEES AGAINST AND FROM ANY CLAIM
ASSERTED OR LIABILITY IMPOSED UPON THE INDEMNITEES FOR
PERSONAL INJURY OR PROPERTY DAMAGE TO ANY PERSON ARISING
OUT OF TENANT'S INSTALLATION, OPERATION, MAINTENANCE,
CONDITION OR USE OFF THE "PROPERTY OIL" TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY FEDERAL,
STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNITY, PROTECT
AND DEFEND INDEMNITEES FROM THE CONSEQUENCES OF THE
Site Number: A3DO158 Version 10-2-01
Site Name: Baytown City Ha11 7
Market: Houston
INDEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
SOLE OR CONCURRING CAUSE OF THE ASSERTED OR CLAIMED
LIABILITY AND (In THE CONSEQUENCES OF THE INDEMNITORS'
NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE OR
CONCURRING CAUSE OF THE ASSERTED OR CLAIMED LIABILITY. THIS
INDEMNITY SHALL CONTINUE NOT WITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE; PROVIDED, HOWEVER, THAT THE
INDEMNITIES PROVIDED BY TENANT HEREUNDER SHALL NOT
EXTEND OR APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES,
PENALTIES, LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES
WHICH ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE
WORKING ON LANDLORD'S FACILITIES ON THE NEW TOWER.
(d) Defense of Indemnitees: In the event any action or proceeding shall be brought against the Indemnitees by
reason of any matter for which the Indemnitees are indemnified in this Section 10 or Section 13, Tenant shall,
upon notice from any of the Indemnitees, at Tenant's sole cost and expense, resist and defend the same with
legal counsel reasonably acceptable to the Landlord, and Landlord acknowledges that such legal counsel may
be selected by Tenant's insurer; provided, however, that Tenant shall not admit liability in any such matter on
behalf of the Indemnitees without the written consent of Landlord and provided further that Indemnitees shall
not admit liability for, nor enter into any compromise or settlement of, any claim for which they are
indemnified hereunder, without the prior written consent of TENANT.
(e) Notice, cooperation and Expenses: Landlord shall give Tenant prompt notice of the making of any claim or
the commencement of any action, suit or other proceeding covered by the provisions of this Section 10.
Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses incurred by Landlord in
response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses
such as reasonable attorneys' fees and shall also include the reasonable value of any services rendered by the
Landlord's attorney, and the actual expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits, actions or proceedings but
shall not include reasonable attorneys' fees for services that are unnecessarily duplicative of services
provided Landlord by Tenant. If Tenant requests Landlord to assist it in such defense then Tenant shall pay
all expenses incurred by Landlord in response thereto, including defending itself with regard to any such
actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees
and shall also include the costs of any services rendered by the Landlord's agents, employees or expert
witnesses, and disbursements. and liabilities assumed by Landlord in connection with such suits, actions or
proceedings.
(0 Insurance.
During the Initial Term and any Renewal Term, the Tenant at its own expense shall purchase, maintain and
keep in force and effect insurance against claims for injuries to or death of persons or damages to property
which may arise out of or result from the Tenant's operations and/or performance of the work under this
Lease, whether such operations and/or performance be by the Tenant, its agents, representatives, employees
or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts
any of them may be liable.
The Tenant's insurance coverage shall be primary insurance with respect to the Landlord and its volunteers
and agents. Any insurance or self-insurance maintained by Landlord, its officials, employees or volunteers
r, shall be considered in excess of -the Tenant's insurance and shall not contribute to it. Further, the Tenant - w
shall include all subcontractors as additional insureds under its policies or shall furnish separate certificates
and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
` required in this contract:
Site Number: A3D0158 version 10-2-01
Site Name: Baytown C_ 1 8
Market: Houston
(1) Workers' Compensation Policy
■ Statutory amounts required by Texas law.
■ Employer's Liability: $500,000
(2) Commercial General Liability Policy
■ General aggregate of $2,000,000
■ Owners' and Contractors' Protective Liability of $500,000
■Products and Completed Operations of $1,000,000
■ Personal and Advertising Injury of $1,000,000
■ Minimum of $500,000 per occurrence
■ Coverage shall be at least as broad as ISO CG 00 01 10 93.
■ No coverage exclusions shall be deleted from standard policy
without notification of individual exclusions being attached
for review and acceptance.
(3) Automobile Liability Policy
■ Combined single limits of $1,000,000
■ Coverage for "Any Auto"
(4) Builder's Risk
■ At the start of and during the period of any construction,
■ Limit: 100% of insurable value, replacement cost basis
■ Landlord will be named a loss -payee
■ Include an installation floater or equivalent property coverage covering cables,
materials, machinery and supplies of any nature whatsoever which are to be used in or
incidental to the installation of the Antenna Facilities.
(5) Hazardous Materials Insurance
■ in an amount satisfactory to the Landlord
Prior to or upon the execution of this Lease and before commencing any of the work, the Tenant shall file
with the Landlord valid Certificates of Insurance reasonably acceptable to the Landlord. Such Certificates
shall contain a provision that coverages afforded under the policies will not be canceled, -suspended, voided,
or reduced until at least thirty (30) days' prior written notice has been given to the Landlord via certified
mail, return receipt requested. Prior to the end of each coverage period during the term of this Lease; new
Certificates of Insurance must be filed with the Landlord evidencing continuation of coverage.
The Tenant shall also file with the Landlord valid Certificates of Insurance covering all Subcontractors.
The following are general requirements, which are applicable to all policies:
a. All insurance coverage required herein, except for Workers' Compensation Insurance, shall be
written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best
Key Rating Guide.
b. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted.
C. Deductibles shall be listed on the Certificate of Insurance.
d. All policies other than those for Worker's Compensation shall be written on an occurrence and not
on a claims made basis;
e. All policies, except for employer's liability and worker's compensation policies, shall name the
Landlord,_ its officials, employees, and agents as "Additional Insureds". The coverage shall contain
no speclal'hmitation'on the scope of protection afforded`to the Landlord, its'officials, employees or
volunteers.
f. A waiver of subrogation in favor of the Landlord with respect to Workers' Compensation Insurance
must be included.
g. Review of Limits: Once during each calendar year during the term of this Lease, the Landlord may
review the insurance coverages to be carried by Tenant. If Landlord determines that higher limits
Site Number: A31)0158 Version 10-2-01
Site Name: Baytown_gly Hall 9
Market: Houston
of coverage are necessary to protect the interests of Landlord or the Additional Insureds, Tenant
shall be so notified and shall obtain the additional limits of insurance, at its sole cost and expense.
h. If reasonably necessary to effectuate the provisions of this Section 10(f), Tenant will provide
Landlord with endorsements evidencing the insurance coverage requirements hereof. In the event
of any claim or litigation that involves or relates to the insurance that Tenant is required to maintain
under this Lease, Landlord, at its sole cost and expense, may review Tenant's insurance policies at
Tenant's headquarters in Bellevue, Washington; provided, however, that Landlord shall not
disclose the terms or provision of any such policies to any third party unless required to do so by
law or court order.
IL . Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days
after deposit in the U.S. mail, certified and postage paid if properly addressed, or upon receipt if personally delivered or
sent by next -business -day delivery via a nationally recognized overnight courier to the addresses set forth below.
Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to
the other party.
If to Tenant, to:
T-Mobile Texas, L.P.
2 Greenway Plaza, Suite 1100
Houston, TX 77046
Attn: Lease Administration Manager
If to Landlord, to.
City of Baytown
Attn: City Manager
2401 Market Street
Baytown, TX 77520
12. Acceptance of the Property. By taking possession of the Property, Tenant accepts the Property in the condition existing
as of the Commencement Date. Except as otherwise expressly provided in Section 13 of this Lease, Landlord makes
no representation of warranty with respect to the condition of the Property and the Landlord shall not be liable for any
latent or patent defect in the Property.
13. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (collectively,
"Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal,
state or local law .or regulation. The Tenant represents and warrants that its use of the Property will not generate any
Hazardous Substance, and it will not store or dispose on the Property, nor transport to or over the Property any
Hazardous Substance in violation of any applicable law.
TENANT AGREES TO HOLD LANDLORD HARMLESS, INDEMNIFY,= M D
DEFEND LANDLORD AGAINST ANY RELEASE OF ANY SUCH
HAZARDOUS SUBSTANCE CAUSED BY TENANT OR BY ANY PERSON OR
ENTITY ACTING FOR OR ON BEHALF OF TENANT AND ANY DAMAGE,
LOSS, OR EXPENSE OR LIABILITY RESULTING FROM SUCH RELEASE,.
INCLUDING ALL REASONABLE ATTORNEYS' FEES, COSTS AND
PENALTIES INCURRED AS A RESULT THEREOF EXCEPT ANY RELEASE
CAUSED BY THE SOLE NEGLIGENCE OF LANDLORD, ITS EMPLOYEES,
CONTRACTORS OR AGENTS. "HAZARDOUS SUBSTANCE" SHALL BE
INTERPRETED BROADLY TO MEAN ANY SUBSTANCE OR MATERIAL
DEFINED OR DESIGNATED AS 14A7 ARDOUS OR TOXIC WASTE,
'-HAZARDOUS OR TOXIC MATERIAL, IRA7.ARDOUS -OR TOXIC -'OR
RADIOACTIVE SUBSTANCE, OR OTHER SDMAR TERM BY ANY
FEDERAL, STATE OR LOCAL ENVIRONMENTAL LAW, REGULATION OR
RULE PRESENTLY IN EFFECT OR PROMULGATED IN THE FUTURE, AS
SUCH LAWS, REGULATIONS OR RULES MAY BE AMENDED FROM TIME
TO TIME; AND IT SHALL BE INTERPRETED TO INCLUDE, BUT NOT BE
LI IITED TO, ANY SUBSTANCE WHICH AFTER RELEASE INTO THE
ENVIRONMENT WILL OR MAY REASONABLY BE ANTICIPATED TO
Site Number: A3130158 version 10-2-01
Site Name: Baytown_Q13LHall 10
Market: Houston
CAUSE SICKNESS, DEATH OR DISEASE. IT IS THE EXPRESSED
INTENTION OF THE PARTIES HERETO, BOTH TENANT AND LANDLORD,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN
INDEMNITY BY TENANT TO INDEMNITY, PROTECT AND DEFEND
LANDLORD FROM THE CONSEQUENCES OF THE INDEMMTEES' OWN
NEGLIGENCE V41ERE THAT NEGLIGENCE IS A CONCURRING CAUSE
OF THE DAMAGE, LOSS, OR EXPENSE OR LIABILITY AND (II) THE
CONSEQUENCES OF THE INDEMNITORS' NEGLIGENCE WHERE THAT
NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE DAMAGE,
LOSS, OR EXPENSE OR LIABILITY. THIS INDEMNITY SHALL CONTINUE
NOTWITHSTANDING TERMINATION OF THIS LEASE UNM ALL SUCH
CLAIMS ARE BARRED BY APPLICABLE STATUTES OF LIMITATION.
14. Assignment. Tenant may not assign this Lease and/or the license granted herein without the prior written approval of
the Landlord; provided, however, that Tenant may assign the Lease without Landlord's consent to any parent, affiliate
or subsidiary of Tenant, any party that merges or consolidates with Tenant or its parent, or any party that purchases all
or substantially all of Tenant's ownership interest or assets. Upon an assignment approved in writing by the Landlord,
or in the case of an assignment permitted without Landlord's approval, Tenant shall be relieved of all liabilities and
obligations hereunder except for those liabilities arising prior to the Landlord's consent to the assignment or the
effective date of the permitted assignment, as applicable. Assignment without the prior written consent of the Landlord
(if required under this paragraph) shall be a material breach for which the Lease may be terminated.
Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna
Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests,
including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees agree to be bound by the
terms and provisions of this Lease. In such event, Landlord shall execute a consent to leasehold financing as may
reasonably be required by Mortgagees containing term and conditions satisfactory to the Landlord.
15. Successors and Assigns. This Lease and the license shall run with the land and shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and assigns.
16. Transfer of Ownership. Tenant agrees to convey, free and clear of all liens, the New Tower structure and related
facilities to Landlord upon Lease expiration or termination. At such time, Landlord will have the right to negotiate new
leases, licenses or other agreements directly with any Carriers who may still desire to occupy the Premises and New
Tower. The Landlord may, at Landlord's option, require Tenant to remove the Antenna Facility including the New
Tower if in the Landlord's discretion the Landlord does not desire the transfer of New Tower ownership to the
Landlord upon expiration or termination of the Lease. If removed at the request of the Landlord at the expiration or
termination of the Lease, Tenant shall be obligated to restore and repair the Property to the condition it was in prior to
the,.mcction of the New Tower, except for normal wear and tear as determined by the Landlord's City. Manager.
17. Miscellaneous.
(a) 'Each party agrees to furnish to the other, within twenty (20} days after request, such truthful estoppel
information as the other may reasonably request.
(b) This Lease constitutes the entire agrccment and understanding of the parties regarding the subject matter
hereof, and supersedes all offers, negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and
executed by both parties.
(c) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of
Lease in substantially the form attached hereto as Exhibit C) necessary to protect its rights or use of the
Premises. The'Memor'and" of Lease may be' recorded in place of this Lease by eitheo'-%iiy. Tenant may
obtain title insurance on its interest in the Premises.
(d) Tenant, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and
regulations including without limitation, laws and ordinances relating to health, marking and lighting
requirements, radio frequency emissions, or other radiation and safety requirements in connection with the
use, operation, maintenance, construction and/or installation of the Antenna Facilities and/or the Premises
and Property.
Site Number: A3DO158 Version 10-2-01
Site Name: Baytown City Hall 11
Market: Houston
(e) Neither the Tenant nor the Landlord shall be deemed in violation of this Lease if it is prevented from
performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes,
shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather
conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or
which is not in its control, and the time for performance shall be automatically extended by the period the
party is prevented from performing its obligations hereunder.
(f} This Lease shall be construed in accordance with the laws of the state in which the Property is located.
Venue shall for all purposes be in Harris County, Texas.
(g) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of
this Lease, which shall continue in full force and effect. Any questions of particular interpretation shall not
be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. No provision of
this Lease will be deemed waived by either party unless expressly waived in writing signed by the waiving
party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either
party of any provision of this Lease shall be deemed a waiver of such provision with respect to any
subsequent matter relating to such provision.
(h) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this
Lease in their individual or representative capacity as indicated.
(i) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original,
but all of which together shall constitute a single instrument.
(j) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties
understand and acknowledge that Exhibit A and Exhibit B (the Premises location within the Property), may
be attached to this Lease and the Memorandum of Lease, in preliminary form. Accordingly, the parties agree
that upon the preparation of final, more complete exhibits, Exhibits A and/or B, as the case may be, which
may have been attached hereto in preliminary form, shall be replaced with a final, more complete exhibit(s) if
approved by the Landlord. Tenant shall be responsible for all cost associated with the preparation of all
Exhibits herein described.
(k) If Tenant is represented by any broker or any other leasing agent, Tenant is responsible for all commission
fee or other payment to such agent, and agrees to indemnify and hold Landlord harmless from all claims by
such broker or anyone claiming through such broker.
(1) Whenever Landlord's consent or approval is required under any provision of this Lease, such consent or
approval will not be unreasonably withheld, conditioned or delayed.
The effective date of this Lease is the date of execution by the Landlord (the "Effective Date").
LANDLORD: City of Baytown
By:
Printed Name'
Its:
Date:
TENANT:
T-Mobile-Texa$, L.P., A Delaware limited artnership
By:
T-Mobile West'Cwporation; its Gene artner
i
By:
`Printed Name:
Jon Zuinste -�'—�
Its: Area Director of Engineering and Operations
Date: /x `Zx—
Approved as to form
Site Number. A3DO 158 Version 10-2-01
Site Name: Baytown Cily Hall 12
Market: Houston
EXHIBIT A
Legal Description
The Property is legally described as follows:
All that certain land and property described as follows, to -wit:
A tract of land containing 29.84203 acres, more or less, and being a part of a 31.836 acre
tract of land out of said League conveyed by McKinnon Land Company to John M.
Kilgore at al by deed dated May 20, 1948, recorded in Volume 1771 at Page 136 of the
Deed Records of Harris County, Texas, more particularly described as follows, to -wit:
BEGINNING at an iron pipe situated North 34 deg. 29 min. 36 sec. East a distance of
211.-69 feet from the Southwest corner of said 31.836 acre tract, described in the
aforesaid deed recorded in Volume 1771 at Page 136 of the Deed Records of Harris
County, Texas;
THENCE North 81 deg. 29 min. 40 sec. East 365.50 feet to a 1" iron pipe for corner;
THENCE North 34 deg 29 min. 36 sec. East a distance of 201.31 feet to a point for
corner, a 1 " iron pipe;
THENCE North 55 deg. 30 min. 24 sec. West a distance of 267.31 feet to a 1" iron pipe
for corner;
THENCE North 34 deg. 29 min. 36 sec. East a distance of 263.50 feet to a 1" iron rod for
comer in the Southeast right of way line of Market Street Road - 100 ft. right of way;
THENCE North 60 deg. 09 min. 41 sec. East along the Southeast right of way line of
Market Street Road, a distance of 797.41 feet to a point for corner in the South right of
way line of Houston-Northshore Railroad right of way;
THENCE South 69 deg. 49 min. East along the South right of way line of Houston-
Northshore.Railroad a.distance of 164.33 feet to a %". iron pipe for corner;
THENCE South 34 deg. 08 min. 56 sec. East a distance of 855.14 feet to an old grate bar
for comer;
THENCE South 55 deg. 30 min. 24 sec. West 1002.48 feet to a 1" iron pipe for corner in
the North right of way -line of West Main Street, 60 ft. right of way;
THENCE'along the NoA right of way line of West Main Strut; North *77"deg. 59 min.
West 260.64 feet; North 80 deg. 30 min. West 359.50 feet; North 80 deg. 59 min. West
130.32 feet; North 82 deg. 25 min. 39 sec. West 288.35 feet to an iron pipe for corner;
THENCE North 34 deg. 29 min. 36 sec. East 211.69 feet to the Place of Beginning;
containing 29.84203 acres of land, more or less.
Site Number: A3D0158 version 10-2-01
Site Name: Baytown Cily Hall
Market: Houston
EXHIBIT B
The location of the Premises within the Property (together with access and utilities)
is more particularly described and depicted as follows:
Final site specific details will be included in the Landlord's written approval referenced in Section 1(c).
A
i
I
i I
A3D0158B - Baytown City Halli i
Preliminary Site Drawing'
I i
Fence I I
..............................................
1
I I
Paved Parking Lot 1 !
W
5' Proposed Underground Utility
Easement -Runs to Market St
N
Utilities -Final routing to be
approved by City
o
`
W ,
J
Proposed 25 wide Access
Easement (Access granted
length of Civic Dr to Market St)
North
1 1
f !
J 1
ExbBft24Wf CRY Tower
Fe)hCad compound (To Be
3 . Removed by 744ob0c)
•'1 1
i 1
1 1
J? 1
i
............. _ _........ 1
J 1
1 1
1 !
1 1
1
1 1
1 I
—l-- J------------------Do-
Civic Drive (existing private road) �I ilr------------------4►
I
:1.......1............................
Proposed Now
SO)LW T-MOW
Lame compound
Site Number: A3D0158
Site Name: Baytown-gty Hall
Market: Houston
Version 10-2-01
Fjamrr c
Memorandum
Lease
Site Number. A3D0158
Site Name: Baytown QLty Hall
Market: Houston
Version 10-2-01
Memorandum of Lease
Between City of Baytown ("Landlord")
and T-Mobile Texas, L.P. ("Tenant")
A Site Lease with Option (the "Lease") by and between City of Baytown ("Landlord") and T-Mobile Texas,
L.P., a Delaware Limited Partnership, ("Tenant") was made regarding a portion of the following property:
See Attached Exhibit "A' incorporated herein for all purposes.
The Option is for a term of twelve (12) months after the Effective Date of the Lease (as defined 'under the
Lease), with up to one additional twelve (12) month renewal ("Option Period").
The Lease is for a term of five (5) years and will commence on the date as set forth in the Lease (the
"Commencement Date"). Tenant shall have the right to extend this Lease for five (5) additional five-year terms.
IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum effective as of
the date of the last party to sign.
LANDLORD: City of Baytown
By:
Printed Name:
Its:
Date:
TENANT:
By:
By:
Printed Name:
Its:
Date:
T-Mobile Texas, L.P., A Delaware limited partnership
T-Mobile West,Corporation, its Gene"er
L_ ,,�r✓
Jon 2�imstep�
Area Director of Engineering and Operations
Site Number: A31)0158 Version 10-2-01
Site Name: Baytown —City Hall
Market: Houston
(Notary block for Landlord]
[Notary block for Corporation, Partnership, Limited Liability Company]
STATE OF )
) ss.
COUNTY OF )
This instrument was acknowledged before me on by ,
[title] of a [type of entity],
on behalf of said [name of entity].
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seat)
[Notary block for Tenant]
STATE OF TEXAS
) ss.
COUNTY OF TRAVIS )
I certify that I know or have satisfactory evidence that Jon Zumsteg is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the Area Director of Engineering and
Operations of T-Mobile Texas, L.P.,; I'Delaware Limited Partnership, to'be 'the" free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
Site Number: A3130158 version 10-2-01
Site Name: Baytown Cily Hall
Market: Houston
Memorandum of Lease
EXIMIT A
Legal Description
The Property is legally described as follows:
All that certain land and property described as follows, to -wit:
A tract of land containing 29.84203 acres, more or less, and being a part of a 31.836 acre tract of
land out of said League conveyed by McKinnon Land Company to John M. Kilgore at al by deed
dated May 20, 1948, recorded in Volume 1771 at Page 136 of the Deed Records of Harris
County, Texas, more particularly described as follows, to -wit:
BEGINNING at an iron pipe situated North 34 deg. 29 min. 36 sec. East a distance of 211.69 feet
from the Southwest corner of said 31.836 acre tract, described in the aforesaid deed recorded in
Volume 1771 at Page 136 of the Deed Records of Harris County, Texas;
THENCE North 81 deg. 29 min. 40 sec. East 3 65.5 0 feet to a 1" iron pipe for corner;
THENCE North 34 deg 29 min. 36 sec. East a distance of 201.31 feet to a point for corner, a 1"
iron pipe;
THENCE North 55 deg. 30 min. 24 sec. West a distance of 267.31 feet to a 1" iron pipe for
comer;
THENCE North 34 deg. 29 min. 36 sec. East a distance of 263.50 feet to a 1" iron rod for corner
in the Southeast right of way line of Market Street Road 100 ft. right of way;
THENCE North 60 deg. 09 min. 41 sec. East along the Southeast right of way line of Market
Street Road, a distance of 797.41 feet to a point for corner in the South right of way line of
Houston-Northshore Railroad right of way;
THENCE South 69 deg. 49 min. East along the South right of way line of Houston-Northshore
Railroad a distance of '64 33 feet to a 3/4" iron pipe for corner;
THENCE South 34 deg. 08 min. 56 sec. East a distance of 855.14 feet to an old grate bar for
comer;
THENCE South 55 deg. 30 min. 24 sec. West 1002.48 feet to a 1" iron pipe for corner in the
North right of way line of West Main Street, '60 ft. right of way;
THENCE along the North right of way line of West Main Street, North 77 deg. 59 min. West
260.64 feet; North 80 deg. 30 min. West 359.50 feet; North 80 deg. 59 min. West 130.32 feet;
North 82 deg. 25 min. 39 sec. West 288.35 feet to an iron pipe for comer;
THENCE North 34 deg. 29 min. 3 6 sec. East 211.69 feet to the Place of Beginning; containing
29.84203 acres of land, more or less.
Site Number: A3DO158 Version 10-2-01
Site Name: Baytown QiV Hall
Market: Houston
SITE LEASE WITH OPTION
THIS SITE LEASE WITH OPTION (this "Lease") is by and between City of Baytown ("Landlord") and T-Mobile
Texas, L.P., a Delaware Limited Partnership ("Tenant").
Option to Lease.
(a) In consideration of the payment of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) (the "Option
and Application Fee") by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease the use of
a portion of the real property described in the attached Exhibit A (the "Property"), on the terms and
conditions set forth herein (the "Option"). The Option shall be for an initial term of twelve (12) months,
commencing on the Effective Date (as defined below) (the "Option Period").
(b) During the Option Period, and during the term of this Lease, Landlord agrees to cooperate with Tenant in
obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the
Premises (as defined below) from all applicable government and/or regulatory entities (including, without
limitation, zoning and land use authorities, and the Federal Communications Commission ("FCC")
("Governmental Approvals"). Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord,
to obtain a title report, and apply for zoning approvals, variances, and land -use permits. Landlord expressly
grants to Tenant a right of access to the Property to perform surveys, soils tests, and other engineering
procedures or environmental investigations (collectively "Investigations") on the Property necessary to
determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications,
system design, operations and Governmental Approvals. After the performance of any Investigations on the
Property, Tenant shall promptly restore the Property to the same or better condition that the Property was in
prior to such Investigations. Notwithstanding the foregoing, Tenant may not seek to change the zoning
classification of the Property without first obtaining Landlord's prior written consent and all requests for
Governmental Approvals shall be subject to the Landlord's review and approval prior to their submission.
During the Option Period, Landlord agrees that it will not interfere with Tenant's efforts to secure other
licenses and permits or authorizations that relate to other property; provided such licenses, permits and
authorizations are consistent with the purpose of this Lease which is to erect and maintain tower facilities for
use by the Landlord and the Baytown Area Water Authority. During the Option Period, Tenant may exercise
the Option by so notifying Landlord in writing, at Landlord's address in accordance with Section 11 hereof.
(c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord Hereby leases to
Tenant the use of that portion of the Property sufficient for placement of the Antenna Facilities (as defined
below) together with all necessary space and easements for access and utilities, as generally described and
depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises"). Prior to the
installation of any tower and related infrastructure or any substantial modification thereof on the Premises,
Tenant shall submit a metes and bounds description of the site location and site specific design, construction
and installation -plans -to Landlord in writing. Tenant shall not install until --the- submitted plans and lists -have
been approved in writing by Landlord, which approval shall not be unreasonably delayed or withheld but
may contain improvements necessary or desired by the Landlord to further the purposes of the Property and
the Landlord's use of the same. Tenant's mounting location on the New Tower will be at the height of 160',
and Landlord shall have the right to mount at any other height structurally feasible which will not interfere
with Tenant's or preexisting uses. The height of the New Tower shall be 160' AGL (Above Ground Level).
2. Term.
a. The initial term of this Lease shall be five (5) years commencing on the date of the exercise of the Option
(the "Commencement Date"), and terminating at midnight on the last day of the initial term (the "Initial
Term").
b. Tenant shall have the right to extend this Lease for five (5) additional, five-year terms (each a "Renewal
Term"); provided that the Tenant is not in default of any of the provisions of this Lease at the time of
renewal. Each Renewal Term shall be on the same terms and conditions as set forth herein, except that Rent
shall be increased by fifteen percent (15%) of the Rent paid over the preceding term This Lease may be
renewed by the Tenant for the successive Renewal Terms. In each case, the option to renew may be
exercised only if (i) Tenant gives Landlord written notice of Tenant's intention to renew the Lease at least
ninety (90) days before the expiration of the then -current term, and (ii) Tenant is not in default of any
provision under this Lease at the time such notice is given and at the time of renewal. All of the terms and
Site Number. MB025513 Version 10-2-01
Site Name: Baytown McElroy Park
Market: Houston MM B
conditions hereof shall apply during the Renewal Terms, unless otherwise modified in writing by the parties
hereto.
Within thirty (30) days after the expiration of this Lease, Tenant shall surrender to the Landlord possession of
the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the expiration of the Lease. All property that Tenant is not
required- to surrender but that Tenant fails to remove within thirty (30) days after expiration of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same. Any holding over by Tenant after expiration shall
not constitute a renewal or extension or give Tenant any rights in or to the Premises. If Tenant and Landlord
are in good faith negotiations for an extension of the Lease or for a new lease, which negotiations shall in no
event exceed sixty (60) days, Tenant shall pay, as liquidated damages, the then current fair market rental
value of the Premises and the improvements thereon, as determined by the Landlord, calculated on a per diem
basis, multiplied by two (2) for the period during which Tenant possesses the Premises beyond the expiration
hereof. Such amount is reasonable in the light of the anticipated or actual harm to Landlord caused by the
Tenant's holding over, the difficulties of proof of loss, and the inconvenience of otherwise obtaining an
adequate remedy.
d. Within thirty (30) days after the termination of this Lease, Tenant shall surrender to the Landlord possession
of the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the termination of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after termination of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same.
3. Permitted Use. The Premises may only be used by Tenant for the transmission and reception of radio communication
signals and for the construction, installation, operation, maintenance, repair, removal or replacement of related
facilities, tower and base, antennas, microwave dishes, equipment shelters and/or cabinets. No other uses shall be
permitted on or within the Premises. It is expressly understood and agreed that the Tenant shall not use the Premises
for any unlawful purpose in violation of any valid and applicable law, regulation, or ordinance of the United States, the
State of Texas, or the City of Baytown or other lawful authority having jurisdiction over the Premises, but rather shall
conform to all such laws, regulations and ordinances. Tenant shall not cause, permit or suffer any waste, damages, or
injury"'to, any'portion'of the Premises. Tenant shall not use the Premises'tinl6s and until the Landlord has appioved'i-
writing the Tenant's improvements and Antenna Facilities. If Landlord fails to approve the initial plans or subsequent
plans in such a manner that Tenant's intended use of the Premises will be materially. impaired, Tenant may terminate
this Lease without further liability to Landlord.
4. Rent.
(a) Tenant shall pay Landlord, as rent, SEVEN HUNDRED FIFTY AND N0/100 DOLLARS ($750.00) per
month ("Rent"). Rent shall be payable within twenty (20) days following the Commencement Date prorated
for the remainder of the month in which the Commencement Date falls and thereafter Rent will be payable
monthly in advance by the fifth day of each month to City of Baytown at Landlord's address specified in
Section 11 below. If this Lease is terminated at a time other than on the last day of a month for a reason other
than a default by the Tenant, Rent shall be prorated as of the date of termination and all prepaid Rent shall be
refunded to Tenant. I .
(b) If Tenant subleases space within the Premises to any additional Carrier, the monthly Rent that Tenant pays
Landlord shall be increased by FIVE HUNDRED AND N0/100 DOLLARS ($500.00) per additional Carrier,
prorated for any partial months, and any such Rent increase shall be effective as of the commencement date of
the additional Carrier's sublease with Tenant. Tenant shall provide written proof, satisfactory to the
Landlord's City Manager, of the additional Carrier's sublease with Tenant and of the effective date of the
same within ten (10) days of such effective date. If Tenant's sublease with any additional Carrier expires or
terminates for any reason, the monthly Rent that Tenant pays Landlord pursuant to this provision solely with
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park 2
Market: Houston
respect to such expiring or terminating Carrier's sublease shall cease effective as of the termination date of
the sublease or the date that the Carrier's antenna facilities are removed from the Premises, whichever is
Cww� later. Tenant shall provide written proof of the termination, satisfactory to the Landlord's City Manager, of
the sublease of any additional Carrier. As used herein, "Carrier" shall mean any PCS, Cellular, or ESMR
provider or paging company, but shall not mean any governmental entity. Any additional third -party Carrier
shall be bound by the terms and conditions of Section 5 of this Lease and shall in no way interfere with the
use of the Property by the Landlord, or lessees or licensees of the Landlord with rights in the Property prior in
time to this Lease. Tenant may sublease the Premises without Landlord's consent to any Carrier (as defined
herein), but Tenant will provide Landlord written notice of any such sublease. Any other sublease of the
Premises by Tenant will be subject to Landlord's prior written consent.
(c) Tenant's right to possession and all of Landlord's obligations hereunder are expressly contingent upon the
prompt payment of Rent, and the use of the Premises by Tenant is obtained only on the condition that Rent is
paid on time. Payment of Rent is an independent covenant and all monies received by Landlord shall be
applied first to non -rent obligations of Tenant and then to Rent regardless of any notation on the check. At
any time after Landlord's receipt of a check from Tenant for Rent or for a maintenance fee, such check is not
honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any
reason, Landlord may at any time thereafter, at Landlord's sole option, require that all Rent, maintenance
fees, and other sums due from Tenant hereunder be paid by electronic funds transfer. Failure to pay any Rent
or maintenance fee as and when required will not only be considered a breach of this Lease, but also result in
interest, as specified in Section 4(d), being charged on the delinquent rental and/or maintenance payments
commencing on the date the payment first becomes overdue.
(d) If Tenant is delinquent in the payment of any rental fees for 10 days or more, after receipt of written notice from
Landlord, Tenant agrees to pay in addition to such rental, interest on the delinquent amount at the rate established
by Section 2251.025 of the Texas Government Code.
5. Interference. Tenant and its sublessees shall not use the Premises in any way which interferes with the use of the
Property by Landlord, or lessees or licensees of Landlord with rights in the Property prior in time to this Lease.
Furthermore, Tenant shall not permit any interference with the Landlord's antenna facilities placed on the any of
Tenant's tower facilities, whether by Tenant or any sublessee. Similarly, Landlord shall not use, nor shall Landlord
permit its lessees, licensees, employees, invitees or agents to use, any portion of the Premises in any way which
unreasonably interferes with the operations of Tenant. An unreasonable interference shall be deemed a material breach
by the interfering party, who shall, upon written notice from the other, be responsible for terminating said interference.
In event any interference as prohibited herein does not cease within 72 hours, the parties acknowledge that continuing
interference may cause irreparable injury and, therefore, the injured party shall have the right, in addition to any other rights
that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately
upon written notice.
6. improvements; Utilities; Access.
(a) Tenant shall have the right and obligation, at its expense, to erect and maintain on the Premises, in
accordance with good engineering practices and with all applicable FCC rules and regulations,
improvements, personal property and facilities necessary to operate its communications system, including,
without limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment
shelters and/or cabinets and related cables and utility lines and a location based system, including, without
limitation, antenna(s), coaxial cable, base units and other associated equipment (collectively, the "Antenna
Facilities"), as such location based system may be required by any county, Mate or federal
agency/department. Tenant's installation of the Antenna Facilities shall be done according to plans
developed by an engineering firm that is knowledgeable in tower construction, sealed in accordance with
State of Texas requirements, and approved in advance in writing by the Landlord. Upon completion of
construction, Tenant shall provide the Landlord with as -built drawings of the Antenna Facilities and the
improvements installed on the Premises, which show the actual location of all equipment, transmission lines
and improvements consistent with the plans approved by the Landlord. The drawings shall be accompanied
by a complete and detailed inventory of all equipment, personal property, Antenna Facilities and any other
items of Tenant's on the Property. Tenant may with the prior written consent of the Landlord alter, replace,
expand, enhance and upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall
cause all construction to occur lien -free and in compliance with all applicable laws and ordinances. Landlord
acknowledges that it shall not unreasonably interfere with any aspects of construction, except as required to
ensure compliance with all applicable laws, codes, and Lease terms. All Antenna Facilities erected by the
Tenant shall remain the exclusive property of Tenant until the expiration or termination of this Lease.
Subject to the provisions of Section 16, below, upon expiration or termination of the Lease and unless
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park 3
Market: Houston
otherwise directed by the Landlord, ownership of the Tenant erected New Tower (as defined below) shall be
conveyed by bill of sale by Tenant to Landlord with all facilities free and clear of any or all liens occasioned
by the activities of the Tenant.
(b) Tenant, at its expense, may restrict a third parry's access to the Antenna Facilities in a manner which has
been approved in advance in writing by the Landlord. However, Tenant shall not have the right to prohibit or
otherwise restrict, the Landlord's access to the Antenna Facilities, as Landlord has the right to access and
inspect the Premises at all times during the Initial Term and any Renewal Terms; provided that Landlord
shall make no hard electrical connections to Tenant's equipment.
(c) Tenant, shall, at Tenant's expense, keep and maintain the Antenna Facilities now or hereafter located on the
Property in good repair and in a manner acceptable to the Landlord during the term of this Lease, normal wear and
tear and casualty excepted. Tenant shall keep the Premises free of debris and anything reasonably determined by
the Landlord to be of a dangerous, noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or interference. Tenant shall promptly notify Landlord of any and all damages resulting from, arising
out of, or caused to the Premises and City property surrounding the Premises, including, but not limited to,
structural damages, electrical damages, damages to fencing, irrigation systems or landscaping caused by Tenant's
operations, or by Tenant, its officers, agents, employees and invitees. Tenant shall be solely responsible for the
costs and the repair of all such damages and such repairs and/or replacements shall be completed within thirty (30)
days or such other time as agreed to by the parties and be acceptable to Landlord. The failure to successfully
complete repairs and/or replacements in a timely manner to the satisfaction of Landlord, and upon 30 days written
notice, is grounds for termination of the Lease by Landlord.
(d) At Tenant's expense, Tenant may, subject to the Landlord's prior written approval, install utilities, and
improve the present utilities on the Property (including, but not limited to, the installation of emergency
power generators). Landlord agrees to use reasonable efforts in assisting Tenant to acquire necessary utility
service. Tenant shall install separate meters for utilities used on the Property by Tenant. The installation,
maintenance and repair of such meters as well as the costs therefor shall be the responsibility of Tenant. The
Tenant shall be responsible for and pay when due all bills or invoices for utilities used on the Property during
the Initial Term and all Renewal Terms.
(e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant a non-exclusive
license to use the Property for ingress, egress, utilities and access (including access for the purposes described
in Section 1) to the Premises adequate to install and maintain utilities approved by the Landlord, which
include, but are not limited to, the installation of power and telephone service cable, and to service the
Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any Renewal Term;
provided however, the location of such utilities and access thereto is subject to the prior written approval of
the Landlord's City Manager. The license provided hereunder shall have the same term as this Lease.
(f) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises at all times during the Initial Term
of this Lease and any Renewal Term, except during a mandatory evacuation of the -area in which the Premises
is located or other force majeure events.
(g) If there is an existing tower on the Premises currently used by Landlord for radio transmissions ("Existing
Tower"), Tenant, upon written request of the Landlord, agrees to replace the Existing Tower with a new
tower ("New Tower"), at Tenant's sole cost and expense. Landlord shall have the option to keep the Existing
Tower; otherwise, Tenant shall dispose of the Existing Tower at Tenant's expense.
(h) Tenant, at its sole cost and expense, agrees to install Landlord's initial cabling and antennas ("Landlord's
Facilities") on the New Tower on the Premises. The acquisition of such cabling and antennae shall be at
Landlord's cost
(i) After the initial installation of Landlord's cabling and antennas on the Tenant's New Tower as provided in
subsection (h) of this section, Landlord shall be responsible for the maintenance of Landlord's cabling and
antennas. After the initial installation of Landlord's Facilities, Landlord and its contractors and
subcontractors must notify Tenant before doing any installation, upgrades, modifications, repair, maintenance
or other work on the New Tower. After the initial installation of Landlord's Facilities, Landlord shall be
solely responsible for all costs and expenses relating to the operation, repair, maintenance and replacement of
Landlord's Facilities, including, without limitation, utility service charges. Landlord's contractors and
subcontractors who perform work on the New Tower must obtain and maintain the same types and amounts
of insurance coverage that Tenant's contractors are required to maintain, and Tenant shall be named as an
additional insured on all liability policies maintained by Landlord's contractors and subcontractors and be
SiteNumber: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park 4
Market: Houston
provided certificates of such insurance. Landlord will not be required to pay Tenant rent with respect to
Landlord's Facilities. Landlord warrants and represents to Tenant that only Landlord's approved contractors,
and not its employees or agents, will climb and perform any work on the New Tower on behalf of Landlord.
7. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further
liability as follows:
(a) upon thirty (30) days' written notice pursuant to Section 11 by Landlord if Tenant fails to cure a default for
payment of amounts due under this Lease within that thirty (30) day period;
(b) upon thirty (30) days' written notice pursuant to Section 11 by Tenant, if Tenant notifies Landlord in writing
of unacceptable results of any title report, environmental or soil tests prior to Tenant's installation of the
Antenna Facilities on the Premises, or if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels
any license (including, without limitation, an FCC license), permit or any Governmental Approval necessary
to the installation and/or operation of the Antenna Facilities or Tenant's business; or
(c) upon ninety (90) days' written notice pursuant to Section l 1 by Tenant if through no fault of the Tenant, the
Premises or the Antenna Facilities are, or become unacceptable under Tenant's design or engineering
specifications for its Antenna Facilities or the communications system to which the Antenna Facilities
belong.
8. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other
rights granted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on
-written notice pursuant to Section 11 hereof, to take effect immediately, if the other party (i) fails to perform any
covenant for a period of thirty (30) days after receipt of written notice thereof to cure, or (ii) commits a material breach
of this Lease and fails to diligently pursue such cure to its completion after sixty (60) days' written notice to the
defaulting party.
If Landlord is compelled or elects to pay any sum of money or do any acts that require the payment of money by reason
of the Tenant's failure or inability to perform any of the provisions of this Lease after passage of any notice and cure
period provided under any other provisions of this Lease, Tenant shall, within ten (10) days of the demand therefor,
reimburse Landlord for such reasonable, actual sums, and all such sums shall bear interest at the rate specified in
Section 2251.025 of the Texas Government Code, as amended, from the date of expenditure until the date of such
reimbursement. Other sums payable under this Lease that are not paid by Tenant when due shall bear interest at the
same rate from and after the payment due date until the date Landlord receives payment thereof
9. Taxes. Tenant shall pay any personal property tax, real property tax or any other tax or fee which arises out of or in
connection with the Tenant's use and occupancy of the Premises and/or the presence or installation of the Antenna
Facilities of the Tenant or its sublessees until (i) the New Tower any related facilities are conveyed to and accepted by
the Landlord, and (ii) Tenant removes its Antenna Facilities from the Premises in accordance with the terms of this
Lease; provided, however, that Tenant - shall pay its pro rata share of any such taxes prior to any conveyance to
Landlord. For all purposes of this Lease, any tax assessment or charge imposed upon the Antenna Facilities, whether
classified as real property or personal property, shall be considered personalty taxes. Tenant shall make all such
.payments directly to the charging authority prior to any delinquency and before any fine, interest or penalty shall
become due or be imposed by operation of law for their nonpayment. Tenant may challenge any personal property or
real property tax assessments that may affect Tenant. If Landlord receives notice of any personal property or real
property tax assessment against the Tenant, which may affect Tenant and is attributable to Tenant's use and occupancy
of the Premises and/or the presence or installation of the Antenna Facilities, Landlord sliall provide timely notice of the
assessment to Tenant sufficient to allow Tenant to contest to or challenge such assessment. Further, Landlord shall
provide to Tenant upon request any public information requested by the Tenant subject to the fees specified in Section
2-616 of the Code of Ordinances, Baytown, Texas. If the Tenant contests any tax, assessment or charge, the Tenant
may, unless otherwise required by law, withhold or defer only that portion of the payment, which is the subject of
Tenant's contest, or pay under protest. Prior to the date any contested taxes, assessment, or charge shall become due, the
Tenant shall perfect its contest of any,tax,. assessment or charge and,advisg.the Landlord,in writing that the Tenant has
contested the same and the ground.
10 Insurance Release, and Indemnification.
(a) Disclaimer of Liability: Landlord shall not at any time be liable for injury or damage occurring to any person
or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use,
operation, condition or dismantling of the tower(s) or Tenant's Antenna Facilities.
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy 5
Market: Houston
(b)
Indemnification:
TENANT SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY, HOLD
HARMLESS, AND DEFEND LANDLORD, ITS OFFICERS, BOARDS,
COM MSSIONS, EMPLOYEES, AGENTS, ATTORNEYS, CONTRACTORS
(HEREAFTER REFERRED TO AS "INDEMNITEES"), FROM AND AGAINST:
(I) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LMTATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
ACT OR OMISSION OF TENANT, ITS PERSONNEL, EMPLOYEES,
AGENTS, CONTRACTORS, OR SUBCONTRACTORS (HEREINAFTER
REFERRED TO AS "INDEMNITORS"), RESULTING IN PERSONAL
INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY
PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE
OR INTANGIBLE PROPERTY, LIBEL, SLANDER, INVASION OF
PRIVACY AND UNAUTHORIZED USE OF ANY TRADEMARK, TRADE
NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY OTHER
RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY
ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, USE
OR CONDITION OF THE PROPERTY OR TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY
FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR
REGULATION; PROVIDED, HOWEVER, THAT THE INDEMNITIES
PROVIDED BY TENANT HEREUNDER SHALL NOT EXTEND OR
APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES, PENALTIES,
LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES WHICH
ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE WORKING
ON LANDLORD'S FACILITIES ON THE NEW TOWER;
(II) ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES,
CLAIMS;`' LIENS, COSTS, "CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER
CONSULTANTS), WHICH ARE IMPOSED UPON, INCURRED BY OR
ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR
SUPPLIES PROVIDED OR SUPPLIED TO TENANT, ITS
CONTRACTORS OR SUBCONTRACTORS, FOR THE INSTALLATION,
CONSTRUCTION, OPERATION, MAINTENANCE OR USE OF THE
PROPERTY OR TENANT'S ANTENNA FACILITIES, AND, UPON THE
WRITTEN REQUEST OF LANDLORD, TENANT SHALL CAUSE SUCH
CLAIM "'OR LIEN COVERING* LANDLORD'S PROPERTY TO BE
DISCHARGED OR BONDED WITHIN THIRTY (30) DAYS FOLLOWING
SUCH REQUEST; AND/OR
(IIn ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSE
(INCLUDING, WITHOUT LEWTATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
Site Number: A3BO2$5B Version 10-2-01
Site Name: Baytown McElroy Park 6
Market: Houston
.. V
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
FINANCING OR SECURITIES OFFERING BY TENANT OR ITS
AFFILIATES FOR 'VIOLATIONS OF THE COMMON LAW OR ANY
LAWS, STATUTES, OR REGULATIONS OF THE STATE OF TEXAS OR
UNITED STATES, INCLUDING THOSE OF THE FEDERAL SECURITIES
AND EXCHANGE COMMISSION, WHETHER BY TENANT OR
OTHERWISE.
TENANT'S OBLIGATION TO INDEMNIFY INDEMNITEES UNDER THIS
LEASE SHALL EXTEND TO CLAIMS, LOSSES, AND OTHER MATTERS
COVERED HEREUNDER THAT ARE CAUSED IN PART OR CONTRIBUTED
TO BY THE NEGLIGENCE OF ONE OR MORE INDEMNITEES. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND LANDLORD FROM THE CONSEQUENCES OF (1) THE
INDEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND (II) THE CONSEQUENCES OF I'HE
INDEMNITORS' NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE
OR CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. THIS
INDEMNITY SHALL CONTINUE NOTWITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE. THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM,
LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE
INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE
OF LANDLORD, ITS EMPLOYEES, AGENTS OR CONTRACTORS,
UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY.
(c) Assumption of Risk: Tenant undertakes and assumes for its officers, agents, contractors, subcontractors and
employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions whether
patent or latent, obvious or undiscoverable, and regardless of whether the Landlord should have known of
such dangerous conditions, if any, on or about the Property. After the initial installation of Landlord's
Facilities on the New Tower, and subject to the provisions of the last sentence of Section 6(i), in connection,
with any work being performed by Landlord or its employees on the Premises, Landlord undertakes and
assumes for its officers and employees (collectively "Landlord" for the purpose of this section), all risk of
dangerous conditions whether patent or latent, obvious or undiscoverable, and regardless of whether the
Landlord should have known of such dangerous conditions, if any, on or about the Premises. Each party will
notify the other party if it becomes aware of any dangerous conditions on the Premises and/or New Tower,
but Landlord will have no duty to inspect the New Tower.
TENANT HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE INDEMNITEES AGAINST AND FROM ANY CLAIM
ASSERTED OR LIABILITY IMPOSED UPON THE INDEMNITEES FOR
PERSONAL INJURY OR PROPERTY DAMAGE TO ANY PERSON ARISING
OUT OF TENANT'S INSTALLATION, OPERATION, MAINTENANCE,
CONDITION ' OR * 11$E' ' OF" 'TB E PROPERTY OR' TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY FEDERAL,
STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND INDEMNITEES FROM THE CONSEQUENCES OF THE
Site Number: A3B0255B Version 10-2-01
site Name: Baytown McElroy Park 7
Market: Houston
11* DEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
SOLE OR CONCURRING CAUSE OF THE ASSERTED OR CLAIMED
LIABILITY AND (II) THE CONSEQUENCES OF THE INDEMNITORS'
NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE OR
CONCURRING CAUSE OF THE ASSERTED OR CLAIMED LIABILITY. THIS
INDEMNITY SHALL CONTINUE NOT WITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE; PROVIDED, HOWEVER, THAT THE
INDEMNITIES PROVIDED BY TENANT HEREUNDER SHALL NOT
EXTEND OR APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES,
PENALTIES, LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES
WHICH ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE
WORKING ON LANDLORD'S FACILITIES ON THE NEW TOWER
(d) Defense of Indemnitees: In the event any action or proceeding shall be brought against the Indemnitees by
reason of any matter for which the Indemnitees are indemnified in this Section 10 or Section 13, Tenant shall,
upon notice from any of the Indemnitees, at Tenant's sole cost and expense, resist and defend the same with
legal counsel reasonably acceptable to the Landlord, and Landlord acknowledges that such legal counsel may
be selected by Tenant's insurer; provided, however, that Tenant shall not admit liability in any such matter on
behalf of the Indemnitees without the written consent of Landlord and provided further that Indemnitees shall
not admit liability for, nor enter into any compromise or settlement of, any claim for which they are
indemnified hereunder, without the prior written consent of TENANT.
(e) Notice, cooperation and Expenses: Landlord shall give Tenant prompt notice of the making of any claim or
the commencement of any action, suit or other proceeding covered by the provisions of this Section 10.
Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses incurred by Landlord in
response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses
such as reasonable attorneys' fees and shall also include the reasonable value of any services rendered by the
Landlord's attorney, and the actual expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits, actions or proceedings but
shall not include reasonable attorneys' fees for services that are unnecessarily duplicative of services
provided Landlord by Tenant. If Tenant requests Landlord to assist it in such defense then Tenant shall pay
all expenses incurred by Landlord in response thereto, including defending itself with regard to any such
actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees
and shall also include the costs of any services rendered by the Landlord's agents, employees or expert
witnesses, and disbursements and liabilities assumed by Landlord in connection with such suits,. actions or
.
proceedings.
(f) Insurance.
During the Initial Term and any Renewal Term, the Tenant at its own expense shall purchase, maintain and
keep in force and effect insurance against claims for injuries to or death of persons or damages to property
which .may arise out of or result from the Tenant's operations and/or performance of the work under this
Lease, whether such operations and/or performance be by the Tenant, its agents, representatives, employees
or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts
any of them may be liable.
The Tenant's insurance coverage shall be primary insurance with respect to the Landlord and its volunteers
and agents. Any insurance or self-insurance maintained by Landlord, its officials, employees or volunteers
i,- shall be considered in 'excess- of the Tenant's insurance and shall not contribute to it. Further, the Tenant -
shall include all subcontractors as additional insureds under its policies or shall furnish separate certificates
and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Site Number. A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park 8
Market: Houston
(1) Workers' Compensation Policy
■ Statutory amounts required by Texas law.
■ Employer's Liability: $500,000
(2) Commercial General Liability Policy
■ General aggregate of $2,000,000
■ Owners' and Contractors' Protective Liability of $500,000
NProducts and Completed Operations of $1,000,000
■ Personal and Advertising Injury of $1,000,000
■ Minimum of $500,000 per occurrence
■ Coverage shall be at least as broad as ISO CG 00 01 10 93.
• No coverage exclusions shall be deleted from standard policy
without notification of individual exclusions being attached
for review and acceptance.
(3) Automobile Liability Policy
■ Combined single limits of $1,000,000
■ Coverage for "Any Auto."
(4) Builder's Risk
■ At the start of and during the period of any construction,
■ Limit: 100% of insurable value, replacement cost basis
■ Landlord will be named a loss -payee
o Include an installation floater or equivalent property. coverage covering cables,
materials, machinery and supplies of any nature whatsoever which are to be used in or
incidental to the installation of the Antenna Facilities.
(5) Hazardous Materials Insurance
■ in an amount satisfactory to the Landlord
Prior to or upon the execution of this Lease and before commencing any of the work, the Tenant shall file
with the Landlord valid Certificates of Insurance reasonably acceptable to the Landlord. Such Certificates
shall contain a provision that coverages afforded under the policies will not be canceled, suspended, voided,
or reduced until .at least thirty (30) days' prior written notice has been given to the .Landlord via certified
mail, return receipt requested. Prior to the end of each coverage period -during the term -of this Lease; new
Certificates of Insurance must be filed with the Landlord evidencing continuation of coverage.
The Tenant shall also file with the Landlord valid Certificates of Insurance covering all Subcontractors.
The following are general requirements, which are applicable to all policies:
a. All insurance coverage required herein, except for Workers' Compensation Insurance, shall be
written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best
Key Rating Guide.
b. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted.
C. Deductibles shall be listed or_ the Certificate of Insurance.
d. All policies other than those for Worker's Compensation shall be written on an occurrence and not
on a claims made basis;
e. AlI policies, except for employer's liability and worker's compensation policies, shall name the
Landlord, its officials, employees, and agents as "Additional Insureds". The coverage shall contain
no'specal limitation "on the scope of protection afforded to the Landlord; `its"officials, employees' or
volunteers.
f. A waiver of subrogation in favor of the Landlord with respect to Workers' Compensation Insurance
must be included.
g. Review of Limits: Once during each calendar year during the term of this Lease, the Landlord may
review the insurance coverages to be carried by Tenant. If Landlord determines that higher limits
Site Number: A3BO255B Version 10-2-01
Site Name: Baytown McElroy Park 9
Market: Houston
of coverage are necessary to protect the interests of Landlord or the Additional Insureds, Tenant
shall be so notified and shall obtain the additional limits of insurance, at its sole cost and expense.
h. If reasonably necessary to effectuate the provisions of this Section 10(fl, Tenant will provide
Landlord with endorsements evidencing the insurance coverage requirements hereof. In the event
of any claim or litigation that involves or relates to the insurance that Tenant is required to maintain
under this Lease, Landlord, at its sole cost and expense, may review Tenant's insurance policies at
Tenant's headquarters in Bellevue, Washington; provided, however, that Landlord shall not
disclose the terms or provision of any such policies to any third party unless required to do so by
law or court order.
IL Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days
after deposit in the U.S. mail, certified and postage paid if properly addressed, or upon receipt if personally delivered or
sent by next -business -day delivery via a nationally recognized overnight courier to the addresses set forth below.
Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to
the other party.
If to Tenant, to:
T-Mobile Texas, L.P.
2 Greenway Plaza, Suite 1100
Houston, TX 77046
Attn: Lease Administration Manager
If to Landlord —to.
City. of Baytown
Attn: City Manager
2401 Market Street
Baytown, TX 77520
12. AcceQtance of the Property. By taking possession of the Property, Tenant accepts the Property in the condition existing
as of the Commencement Date. Except as otherwise expressly provided in Section 13 of this Lease, Landlord makes
no representation of warranty with respect to the condition of the Property and the Landlord shall not be liable for any
latent or patent defect in the Property.
13. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (collectively,
"Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal,
state or local law or regulation. The Tenant represents and warrants that its use of the Property will not generate any
Hazardous Substance, and it will not store or dispose on the Property, nor transport to or over the Property any
Hazardous Substance in violation of any applicable law.
`TENANT'AGREES TO HOLD LANDLORD HARMLESS, INDEMNIFY; 'ANR-
DEFEND LANDLORD AGAINST ANY RELEASE OF ANY SUCH
HAZARDOUS SUBSTANCE CAUSED BY TENANT OR BY ANY PERSON OR
ENTITY ACTING FOR OR ON BEHALF OF TENANT AND ANY DAMAGE,
LOSS, OR EXPENSE OR LIABILITY RESULTING FROM SUCH RELEASE,
INCLUDING ALL REASONABLE ATTORNEYS' FEES, . COSTS AND
PENALTIES INCURRED AS A RESULT THEREOF EXCEPT ANY RELEASE
CAUSED BY THE SOLE NEGLIGENCE OF LANDLORD, ITS EMPLOYEES,
CONTRACTORS OR AGENTS. "HAZARDOUS SUBSTANCE" SHALL BE
INTERPRETED BROADLY TO MEAN ANY SUBSTANCE OR MATERIAL
DEFINED OR DESIGNATED AS HAZARDOUS OR TOXIC WASTE,
HAZARDOUS ' OR ' TOXIC MATERIAL, HAZARDOUS-- OR TOXIC OR
RADIOACTIVE SUBSTANCE, OR OTHER SIMILAR TERM BY ANY
FEDERAL, STATE OR LOCAL ENVIRONMENTAL LAW, REGULATION OR
RULE PRESENTLY IN EFFECT OR PROMULGATED IN THE FUTURE, AS
SUCH LAWS, REGULATIONS OR RULES MAY BE AMENDED FROM TIME
TO TIME; AND IT SHALL BE INTERPRETED TO INCLUDE, BUT NOT BE
LIMITED TO, ANY SUBSTANCE WHICH AFTER RELEASE INTO THE
ENVIRONMENT WILL OR MAY REASONABLY BE ANTICIPATED TO
+ • ;.,• ' I,..
Site Nwnber: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park 10
Market: Houston
CAUSE SICKNESS, DEATH OR DISEASE. IT IS THE EXPRESSED
INTENTION OF 'I PARTIES HERETO, BOTH TENANT AND LANDLORD,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN
INDEMNITY BY TENANT TO INDEMNIFY, PROTECT AND DEFEND
LANDLORD FROM THE CONSEQUENCES OF THE INDEMINITEES' OWN
NEGLIGENCE 'WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE
OF TFIE DAMAGE, LOSS, OR EXPENSE OR LIABILITY AND (II) THE
CONSEQUENCES OF THE INDEMNITORS' NEGLIGENCE WHERE THAT
NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE DAMAGE,
LOSS, OR EXPENSE OR LIABILITY. THIS INDEMNITY SHALL CONTINUE
NOTWITHSTANDING TERMINATION OF THIS LEASE UNTIL ALL SUCH
CLAIMS ARE BARRED BY APPLICABLE STATUTES OF LIMITATION.
M. Assignment. Tenant may not assign this Lease and/or the license granted herein without the prior written approval of
the Landlord; provided, however, that Tenant may assign the Lease without Landlord's consent to any parent, affiliate
or subsidiary of Tenant, any party that merges or consolidates with Tenant or its parent, or any party that purchases all
or substantially all of Tenant's ownership interest or assets. Upon an assignment approved in writing by the Landlord,
or in the case of an assignment permitted without Landlord's approval, Tenant shall be relieved of all liabilities and
obligations hereunder except for those liabilities arising prior to the Landlord's consent to the assignment or the
effective date of the permitted assignment, as applicable. Assignment without the prior written consent of the Landlord
(if required under this paragraph) shall be a material breach for which the Lease may be terminated.
Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna
Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests,
including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees agree to be bound by the
terms and provisions of this Lease. In such event, Landlord shall execute a consent to leasehold financing as may
reasonably be required by Mortgagees containing term and conditions satisfactory to the Landlord.
15. Successors and Assigns. This Lease and the license shall run with the land and shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and assigns.
16. Transfer of Ownership. Tenant agrees to convey, free and clear of all liens, the New Tower structure and related
facilities to Landlord upon Lease expiration or termination. At such time, Landlord will have the right to negotiate new
leases, licenses or other agreements directly with any Carriers who may still desire to occupy the Premises and New
Tower. The Landlord may, at Landlord's option, require Tenant to remove the Antenna Facility including the New
Tower if in the Landlord's discretion the Landlord does not desire the transfer of New Tower ownership to the
Landlord upon expiration or termination of the Lease. If removed at the request of the Landlord at the expiration or
termination of the Lease, Tenant shall be obligated to restore and repair the Property to the condition it was in prior to
,the.erection,.of the. New Tower, except for normal wear and tear as determined by the Landlord's City. Manager..:,—,
17. Miscellaneous.
(a) Each party agrees to furnish to the other, within twenty (20) days after request, such truthful estoppel
information as the other may reasonably request.
(b) This Lease constitutes the entire agreement and understanding of the parties regarding the subject matter
hereof, and supersedes all offers, negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and
executed by both parties.
(c) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of
Lease in substantially the form attached hereto as Exhibit C necessary to protect its rights or use of the
Premises:` 'The'Memorandum of Lease may be recorded`'in place of this Lease by'-eithdi party.'t6hant may
�-
obtain title insurance on its interest in the Premises.
(d) Tenant, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and
regulations including without limitation, laws and ordinances relating to health, marking and lighting
requirements, radio frequency emissions, or other radiation and safety requirements in connection with the
use, operation, maintenance, construction and/or installation of the Antenna Facilities and/or the Premises
and Property.
Site Number: A3B0255B Version 10-2-0I
Site Name: Baytown MCEIrgy Park 11
Market: Houston
(e) Neither the Tenant nor the Landlord shall be deemed in violation of this Lease if it is prevented from
performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes,
shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather
conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or
which is not in its control, and the time for performance shall be automatically extended by the period the
party is prevented from performing its obligations hereunder.
(f} This Lease shall be construed in accordance with the laws of the state in which the Property is located.
Venue shall for all purposes be in Harris County, Texas.
(g) if any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of
this Lease, which shall continue in full force and effect. Any questions of particular interpretation shall not
be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. No provision of
this Lease will be deemed waived by either party unless expressly waived in writing signed by the waiving
party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either
party of any provision of this Lease shall be deemed a waiver of such provision with respect to any
subsequent matter relating to such provision.
(h) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this
Lease in their individual or representative capacity as indicated.
(i} This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original,
but all of which together shall constitute a single instrument.
(j) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties
understand and acknowledge that Exhibit A and Exhibit B (the Premises location within the Property), may
be attached to this Lease and the Memorandum of Lease, in preliminary form. Accordingly, the parties agree
that upon the preparation of final, more complete exhibits, Exhibits A and/or B, as the case may be, which
may have been attached hereto in preliminary form, shall be replaced with a final, more complete exhibit(s) if
approved by the Landlord. Tenant shall be responsible for all cost associated with the preparation of all
Exhibits herein described.
(k) If Tenant is represented by any broker or any other leasing agent, Tenant is responsible for all commission
fee or other payment to such agent, and agrees to indemnify and hold Landlord harmless from all claims by
._ such_broker or anyone claiming through such broker.
(1} Whenever Landlord's consent or approval is required under any provision of this Lease, such consent or
approval will not be unreasonably withheld, conditioned or delayed.
The effective date of this Lease is the date of execution by the Landlord (the "Effective Date").
.n�rr ' •I✓';4T1Y:0�2D: City of Baytown ..,:..... ,..... , .._ ..::,. .
By:
Printed Name:
Its:
Date:
TENANT:
T-Mobile Tomas, L.P., A Delaware limited partnership
By:
T-Mobile West.�Moration,,its Gene Partner
By.
i -
Primed Name: "
7on Zumstep,-
Its:
Area Director of Engineering and Operations _
Date:%
-
Approved as to form
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown MCEIro Park 12
Market: Houston
EXHIBIT A
Legal Description
The Property is legally described as follows:
Being a 2.9390 acre tract of land out of the Ponderosa RP Subdivision, Tract 1D, as
recorded in the Deed records of Harris County, Texas.
Also known as Harris County Appraisal District Account Number 045-144-001-0113.
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park
Market: Houston
EXHIBIT B
The location of the Premises within the Property (together with access and utilities)
is more particularly described and depicted as follows:
Final site specific details will be included in the Landlord's written approval referenced in Section I (c).
Craigmont Street
A313025513 -McElroy Park
Site Drawing
Self Storage- Units
Lease Area
(approx. 40'x 50')
ccess Easement from Baker Street
Pawn D i Sidewaik
Shop
....... . .......
-1--'-'''--------
...
....................... -- --------►
.....................................I....................... - ---
pp ...--.----& r01C0&PQWOf . ..
I
Baker Street
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park
Market: Houston
Kol
Site Number. A3B0255B
Site Name: -Baytown MCEl1'oPa k
Market: Houston
EXHIBIT C
Memorandum
of
Lease
Version 10-2-01
Memorandum of Lease
Between City of Baytown ("Landlord")
and T-Mobile Texas, L.P. ("Tenant")
A Site Lease with Option (the "Lease") by and between City of Baytown ("Landlord") and T-Mobile Texas,
L.P., a Delaware Limited Partnership, ("Tenant") was made regarding a portion of the following property:
See Attached Exhibit "A" incorporated herein for all purposes.
The Option is for a term of twelve (12) months after the Effective Date of the Lease (as defined under the
Lease), with up to one additional twelve (12) month renewal ("Option Period").
The Lease is for a term of five (5) years and will commence on the date as set forth in the Lease (the
"Commencement Date"). Tenant shall have the right to extend this Lease for five (5) additional five-year terms.
IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum effective as of
the date of the last.party to sign.
LANDLORD: City of Baytown
By:
Printed Name:
Its:
Date:
TENANT: T-Mobile Texas, L.P., A Delaware limited partnership
By: T-Mobile West Corporation, its General Partner
By:
Printed Name: Jon., umstegl�L
Its: —Area Director of En 'n� eenng and Operations
Date:
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park
Market: Houston
[Notary block for Landlord]
[!Votary block for Corporation, Partnership, Limited Liability Company]
STATE OF }
)Ss.
COUNTY OF }
This instrument was acknowledged before me on
[title] of
on behalf of said [name of entity].
Dated:
Notary Public
Print Name
'My commission expires
Use this space for notary stamp/seal)
by ,
a [type of entity],
[Notary block for Tenant]
STATE OF TEXAS }
... ) ss.
COUNTY OF TRA.VIS }
I certify that I know or have satisfactory evidence that Jon Zumsteg is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated `that he was
authorized to execute the instrument and acknowledged it as the Area Director of Engineering and
Operations of T-Mobile Texas; LP.; 'a" T)elawara Limited Partnership, to be the free and voluntary" act of such
party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park
Market: Houston
Memorandum of Lease
EXHIBIT A
Legal Description
The Property is legally described as follows:
Being a 2.9390 acre tract of land out of the Ponderosa RP Subdivision, Tract 1D, as
recorded in the Deed records of Harris County, Texas.
Also known as Harris County Appraisal District Account Number 045-144-001-0113.
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown McElroy Park
Market: Houston
SITE LEASE WITH OPTION
THIS SITE LEASE WITH OPTION (this "Lease") is by and between City of Baytown ("Landlord") and T-Mobile
Texas, L.P., a Delaware Limited Partnership ("Tenant").
Option to Lease.
(a) In consideration of the payment of ONE THOUSAND AND N0/100 DOLLARS ($1,000.00) (the "Option
and Application Fee") by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease the use of
a portion of the real property described in the attached Exhibit A (the "Property"), on the terms and
conditions set forth herein (the "Option"). The Option shall be for an initial term of twelve (12) months,
commencing on the Effective Date (as defined below) (the "Option Period").
(b) During the Option Period, and during the term of this Lease, Landlord agrees to cooperate with Tenant in
obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the
Premises (as defined below) from all applicable government and/or regulatory entities (including, without
limitation, zoning and land use authorities, and the Federal Communications Commission ("FCC")
("Governmental Approvals"). Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord,
to obtain a title report, and apply for zoning approvals, variances, and land -use permits. Landlord expressly
grants to Tenant a right of access to the Property to perform surveys, soils tests, and other engineering
procedures or environmental investigations (collectively "Investigations") on the Property necessary to
determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications,
system design, operations and Governmental Approvals. After the performance of any Investigations on the
Property, Tenant shall promptly restore the Property to the same or better condition that the Property was in
prior to such Investigations. Notwithstanding the foregoing, Tenant may not seek to change the zoning
classification of the Property without first obtaining Landlord's prior written consent and all requests for
Governmental Approvals shall be subject to the Landlord's review and approval prior to their submission.
During the Option Period, Landlord agrees that it will not interfere with Tenant's efforts to secure other
licenses and permits or authorizations that relate to other property; provided such licenses, permits and
authorizations are consistent with the purpose of this Lease which is to erect and maintain tower facilities for
use by the Landlord and the Baytown Area Water Authority. During the Option Period, Tenant may exercise
the Option by so notifying Landlord in writing, at Landlord's address in accordance with Section 1 I hereof.
(c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord hereby leases to
Tenant the use of that portion of the Property sufficient for placement of the Antenna Facilities (as defined
below) together with all necessary space and easements for access and utilities., as generally described and
depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises"). Prior to the
installation of any tower and related infrastructure or any substantial modification thereof on the Premises,
Tenant shall submit a metes and bounds description of the site location and site specific design, construction
and installation plans to Landlord in writing. Tenant shall not install until the submitted plans and lists have
been approved in writing by Landlord, which approval shall not be unreasonably delayed or withheld but
may contain improvements necessary or desired by the Landlord to further the purposes of the Property and
the Landlord's use of the same. Tenant's mounting location on the New Tower will be at the height of 160',
and Landlord shall have the right to mount at any other height structurally feasible which will not interfere
with Tenant's or preexisting uses. The height of the New Tower shall be 160' AGL (Above Ground Level).
2. Term.
The initial term of this Lease shall be five (5) years commencing on the date of the exercise of the Option
(the "Commencement Date"), and terminating at midnight on the last day of the initial term (the "Initial
Term").
Tenant shall have the right to extend this Lease for five (5) additional, five-year terms (each a "Renewal
Term"); provided that the Tenant is not in default of any of the provisions of this Lease at the time of
renewal. Each Renewal Tenn shall be on the same terms and conditions as set forth herein, except that Rent
shall be increased by fifteen percent (15%) of the Rent paid over the preceding term This Lease may be
renewed by the Tenant for the successive Renewal Terms. In each case, the option to renew may be
exercised only if (i) Tenant gives Landlord written notice of Tenant's intention to renew the Lease at least
ninety (90) days before the expiration of the then -current term, and (ii) Tenant is not in default of any
provision under this Lease at the time such notice is given and at the time of renewal. All of the terms and
Site Number: A3 B0260A Version 10-2-01
Site Name: Baytown Barkaloo Park
Market: Houston V
conditions hereof shall apply during the Renewal Terms. unless otherwise modified in writing by the parties
hereto.
Within thirty (30) days after the expiration of this Lease, Tenant shall surrender to the Landlord possession of
the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the expiration of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after expiration of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same. Any holding over by Tenant after expiration shall
not constitute a renewal or extension or give Tenant any rights in or to the Premises. If Tenant and Landlord
are in good faith negotiations for an extension of the Lease or for a new lease, which negotiations shall in no
event exceed sixty (60) days, Tenant shall pay, as liquidated damages, the then current fair market rental
value of the Premises and the improvements thereon, as determined by the Landlord, calculated on a per diem
basis, multiplied by two (2) for the period during which Tenant possesses the Premises beyond the expiration
hereof. Such amount is reasonable in the light of the anticipated or actual harm to Landlord caused by the
Tenant's holding over, the difficulties of proof of loss, and the inconvenience of otherwise obtaining an
adequate remedy.
d. Within thirty (30) days after the termination of this Lease, Tenant shall surrender to the Landlord possession
of the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the termination of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after termination of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same.
3. Permitted Use. The Premises may only be used by Tenant for the transmission and reception of radio communication
signals and for the construction, installation, operation, maintenance, repair, removal or replacement of related
facilities, tower and base, antennas, microwave dishes, equipment shelters and/or cabinets. No other uses shall be
permitted on or within the Premises. It is expressly understood and agreed that the Tenant shall not use the Premises
for any unlawful purpose in violation of any valid and applicable law, regulation, or ordinance of the United States, the
State of Texas, or the City of Baytown or other lawful authority having jurisdiction over the Premises, but rather shall
conform to all such laws, regulations and ordinances. Tenant shall not cause, permit or suffer any waste, damages, or
injury to, any portion of the'Prerriises. Tenant shall not use the Premises unless and until the Landlord has approved in
writing the Tenant's improvements and Antenna Facilities. If Landlord fails to approve the initial plans or subsequent
plans in such a manner that Tenant's intended use of the Premises will be materially impaired, Tenant may terminate
this Lease without further liability to Landlord.
4. Rent.
(a) Tenant shall pay Landlord, as rent, SEVEN HUNDRED FIFTY AI ID NO/100 DOLLARS ($750.00) per
month ("Rent"). Rent shall be payable within twenty (20) days following the Commencement Date prorated
for the remainder of the month in which the Commencement Date falls and thereafter Rent will be payable
monthly in advance by the fifth day of each month to City of Baytown at Landlord's address specified in
Section I I below. If this Lease is terminated at a time other than on the last day of a month for a reason other
than a default by the Tenant, Rent shall be prorated as of the date of termination and all prepaid Rent shall be
refunded to Tenant.
(b) If Tenant subleases space within the Premises to any additional Carrier, the monthly Rent that Tenant pays
Landlord shall be increased by FIVE HUNDRED AND NO/100 DOLLARS ($500.00) per additional Carrier,
prorated for any partial months, and any such Rent increase shall be effective as of the commencement date of
the additional Carrier's sublease with Tenant. Tenant shall provide written proof, satisfactory to the
Landlord's City Manager, of the additional Carrier's sublease with Tenant and of the effective date of the
same within ten (10) days of such effective date. If Tenant's sublease with any additional Carrier expires or
terminates for any reason, the monthly Rent that Tenant pays Landlord pursuant to this provision solely with
Site Number: A3BO260A Version 10-2-01
Site Name: Baytown Barkaloo Park 2
Market: Houston
respect to such expiring or terminating Carrier's sublease shall cease effective as of the termination date of
the sublease or the date that the Carrier's antenna facilities are removed from the Premises, whichever is
later. Tenant shall provide written proof of the termination, satisfactory to the Landlord's City Manager, of
the sublease of any additional Carrier. As used herein, "Carrier" shall mean any PCS, Cellular, or ESMR
provider or paging company, but shall not mean any governmental entity. Any additional third -party Carrier
shall be bound by the terms and conditions of Section 5 of this Lease and shall in no way interfere with the
use of the Property by the Landlord, or lessees or licensees of the Landlord with rights in the Property prior in
time to this Lease. Tenant may sublease the Premises without Landlord's consent to any Carrier (as defined
herein), but Tenant will provide Landlord written notice of any such sublease. Any other sublease of the
Premises by Tenant will be subject to Landlord's prior written consent.
(c) Tenant's right to possession and all of Landlord's obligations hereunder are expressly contingent upon the
prompt payment of Rent, and the use of the Premises by Tenant is obtained only on the condition that Rent is
paid on time. Payment of Rent is an independent covenant and all monies received by Landlord shall be
applied first to non -rent obligations of Tenant and then to Rent regardless of any notation on the check. At
any time after Landlord's receipt of a check from Tenant for Rent or for a maintenance fee, such check is not
honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any
reason, Landlord may at any time thereafter, at Landlord's sole option, require that all Rent, maintenance
fees, and other sums due from Tenant hereunder be paid by electronic funds transfer. Failure to pay any Rent
or maintenance fee as and when required will not only be considered a breach of this Lease, but also result in
interest, as specified in Section 4(d), being charged on the delinquent rental and/or maintenance payments
commencing on the date the payment first becomes overdue.
(d) If Tenant is delinquent in the payment of any rental fees for 10 days or more, after receipt of written notice from
Landlord, Tenant agrees to pay in addition to such rental, interest on the delinquent amount at the rate established
by Section 2251.025 of the Texas Government Code.
5. Interference. Tenant and its sublessees shall not use the Premises in any way which interferes with the use of the
Property by Landlord, or lessees or licensees of Landlord with rights in the Property prior in time to this Lease.
Furthermore, Tenant shall not permit any interference with the Landlord's antenna facilities placed on the any of
Tenant's tower facilities, whether by Tenant or any sublessee. Similarly, Landlord shall not use, nor shall Landlord
permit its lessees, licensees, employees, invitees or agents to use, any portion of the Premises in any way which
unreasonably interferes with the operations of Tenant. An unreasonable interference shall be deemed a material breach
by the interfering party, who shall, upon written notice from the other, be responsible for terminating said interference.
In the event any interference as prohibited herein does not cease within 72 hours, the parties acknowledge that continuing
interference may cause irreparable injury and, therefore, the injured party shall have the right, in addition to any other rights
that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately
upon written notice.
6. Improvements; Utilities; Access.
(a) Tenant shall have the right and obligation, at its expense, to erect and maintain on the Premises, in
accordance with good engineering practices and with all applicable FCC rules and regulations,
improvements, personal property and facilities necessary to operate its communications system, including,
without limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment
shelters and/or cabinets and related cables and utility lines and a location based system, including, without
limitation, antenna(s), coaxial cable, base units and other associated equipment (collectively, the "Antenna
Facilities"), as such location based system may be required by any county, state or federal
agency/department. Tenant's installation of the Antenna Facilities shall be done according to plans
developed by an engineering firm that is knowledgeable in tower construction, sealed in accordance with
State of Texas requirements, and approved in advance in writing by the Landlord. Upon completion of
construction, Tenant shall provide the Landlord with as -built drawings of the Antenna Facilities and the
improvements installed on the Premises, which show the actual -location of all equipment, transmission lines
and improvements consistent with the plans approved by the Landlord. The drawings shall be accompanied
by a complete and detailed inventory of all equipment, personal property, Antenna Facilities and any other
items of Tenant's on the Property. Tenant may with the prior written consent of the Landlord alter, replace,
expand, enhance and upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall
cause all construction to occur lien -free and in compliance with all applicable laws and ordinances. Landlord
acknowledges that it shall not unreasonably interfere with any aspects of construction, except as required to
ensure compliance with all applicable laws, codes, and Lease terms. All Antenna Facilities erected by the
Tenant shall remain the exclusive property of Tenant until the expiration or termination of this Lease.
Subject to the provisions of Section 16, below, upon expiration or termination of the Lease and unless
Site Number: A3B0260A Version 10-2-01
Site Name: Baytown Barkaloo Park
Market: Houston
otherwise directed by the Landlord, ownership of the Tenant erected New Tower (as defined below) shall be
conveyed by bill of sale by Tenant to Landlord with all facilities free and clear of any or all liens occasioned
by the activities of the Tenant.
(b) Tenant, at its expense, may restrict a third parry's access to the Antenna Facilities in a manner which has
been approved in advance in writing by the Landlord. However, Tenant shall not have the right to prohibit or
otherwise restrict, the Landlord's access to the Antenna Facilities, as Landlord has the right to access and
inspect the Premises at all times during the Initial Term and any Renewal Terms; provided that Landlord
shall make no hard electrical connections to Tenant's equipment.
(c) Tenant, shall, at Tenant's expense, keep and maintain the Antenna Facilities now or hereafter located on the
Property in good repair and in a manner acceptable to the Landlord during the term of this Lease, normal wear and
tear and casualty excepted. Tenant shall keep the Premises free of debris and anything reasonably determined by
the Landlord to be of a dangerous, noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or interference. Tenant shall promptly notify Landlord of any and all damages resulting from, arising
out of, or caused to the Premises and City property surrounding the Premises, including, but not limited to,
structural damages, electrical damages, damages to fencing, irrigation systems or landscaping caused by Tenant's
operations, or by Tenant, its officers, agents, employees and invitees. Tenant shall be solely responsible for the
costs and the repair of all such damages and such repairs and/or replacements shall be completed within thirty (30)
days or such other time as agreed to by the parties and be acceptable to Landlord. The failure to successfully
complete repairs and/or replacements in a timely manner to the satisfaction of Landlord, and upon 30 days written
notice, is grounds for termination of the Lease by Landlord.
(d) At Tenant's expense, Tenant may, subject to the Landlord's prior written approval, install utilities, and
improve the present utilities on the Property (including, but not limited to, the installation of emergency
power generators). Landlord agrees to use reasonable efforts in assisting Tenant to acquire necessary utility
service. Tenant shall install separate meters for utilities used on the Property by Tenant. The installation,
maintenance and repair of such meters as well as the costs therefor shall be the responsibility of Tenant. The
Tenant shall be responsible for and pay when due all bills or invoices for utilities used on the Property during
the Initial Term and all Renewal Terms.
(e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant a non-exclusive
license to use the Property for ingress, egress, utilities and access (including access for the purposes described
in Section l) to the Premises adequate to install and maintain utilities approved by the Landlord, which
include, but are not limited to, the installation of power and telephone service cable, and to service the
Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any Renewal Term;
provided however, the location of such utilities and access thereto is subject to the prior written approval of
the Landlord's City Manager. The license provided hereunder shall have the same term as this Lease.
( Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises at all times during the Initial Term
of this Lease and any Renewal Term, except during a mandatory evacuation of the area in which the Premises
is located or other force majeure events.
(g) If there is an existing tower on the Premises currently used by Landlord for radio transmissions ("Existing
Tower"), Tenant, upon written request of the Landlord, agrees to replace the Existing Tower with a new
tower ("New Tower"), at Tenant's sole cost and expense. Landlord shall have the option to keep the Existing
Tower; otherwise, Tenant shall dispose of the Existing Tower at Tenant's expense.
(h) Tenant, at its sole cost and expense, agrees to install Landlord's initial cabling and antennas ("Landlord's
Facilities") on the New Tower on the Premises. The acquisition of such cabling and antennae shall be at
Landlord's cost.
{i) After the initial installation of Landlord's cabling and antennas on the Tenant's New Tower as provided in
subsection (h) of this section, Landlord shall be responsible for the maintenance of Landlord's cabling and
antennas. After the initial installation of Landlord's Facilities, Landlord and its contractors and
subcontractors must notify Tenant before doing any installation, upgrades, modifications, repair, maintenance
or other work on the New Tower. After the initial installation of Landlord's Facilities, Landlord shall be
solely responsible for all costs and expenses relating to the operation, repair, maintenance and replacement of
Landlord's Facilities, including, without limitation, utility service charges. Landlord's contractors and
subcontractors who perform work on the New Tower must obtain and maintain the same types and amounts
of insurance coverage that Tenant's contractors are required to maintain, and Tenant shall be named as an
additional insured on all liability policies maintained by Landlord's contractors and subcontractors and be
Site Number: A3130260A Version 10-2-01
Site Name: Baytown Barkaloo Park 4
Market: Houston
provided certificates of such insurance. Landlord will not be required to pay Tenant rent with respect to
Landlord's Facilities. Landlord warrants and represents to Tenant that only Landlord's approved contractors,
and not its employees or agents, will climb and perform any work on the New Tower on behalf of Landlord.
Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further
liability as follows:
(a) upon thirty (30) days' written notice pursuant to Section 11 by Landlord if Tenant fails to cure a default for
payment of amounts due under this Lease within that thirty (30) day period;
(b) upon thirty (30) days' written notice pursuant to Section 11 by Tenant, if Tenant notifies Landlord in writing
of unacceptable results of any title report, environmental or soil tests prior to Tenant's installation of the
Antenna Facilities on the Premises, or if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels
any license (including, without limitation, an FCC license), permit or any Governmental Approval necessary
to the installation and/or operation of the Antenna Facilities or Tenant's business; or
(c) upon ninety (90) days' written notice pursuant to Section I 1 by Tenant if through no fault of the Tenant, the
Premises or the Antenna Facilities are, or become unacceptable under Tenant's design or engineering
specifications for its Antenna Facilities or the communications system to which the Antenna Facilities
belong.
Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other
rights granted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on
written notice pursuant to Section I 1 hereof, to take effect immediately, if the other party (i) fails to perform any
covenant for a period of thirty (30) days after receipt of written notice thereof to cure, or (ii) commits a material breach
of this Lease and fails to diligently pursue such cure to its completion after sixty (60) days' written notice to the
defaulting party.
If Landlord is compelled or elects to pay any sum of money or do any acts that require the payment of money by reason
of the Tenant's failure or inability to perform any of the provisions of this Lease after passage of any notice and cure
period provided under any other provisions of this Lease, Tenant shall, within ten (10) days of the demand therefor,
reimburse Landlord for such reasonable, actual sums, and all .such sums shall bear interest at the rate specified in
Section 2251.025 of the Texas Government Code, as amended, from the date of expenditure until the date of such
reimbursement. Other sums payable under this Lease that are not paid by Tenant when due shall bear interest at the
same rate from and after the payment due date until the date Landlord receives payment thereof.
9. Taxes. Tenant shall pay any personal property tax, real property tax or any other tax or fee which arises out of or in
connection with the Tenant's use and occupancy of the Premises and/or the presence or installation of the Antenna
Facilities of the Tenant or its sublessees until (i) the New Tower any related facilities are conveyed to and accepted by
the Landlord, and (ii) Tenant removes its Antenna Facilities from the Premises in accordance with the terns of this
Lease; provided, however, that Tenant shall pay its pro rata share of any such taxes prior to any conveyance to,
Landlord. For all purposes of this Lease, any tax assessment or charge imposed upon the Antenna Facilities, whether
classified as real property or personal property, shall be considered personalty taxes. Tenant shall make all such
payments directly to the charging authority prior to any delinquency and before any fine, interest or penalty shall
become due or be imposed by operation of law for their nonpayment. Tenant may challenge any personal property or
real property tax assessments that may affect Tenant. If Landlord receives notice of any personal property or real
property tax assessment against the Tenant, which may affect Tenant and is attributable to Tenant's use and occupancy
of the Prcmiscs and/or the presence or installation of the Antenna Facilities, Landlord shall provide timely notice of the
assessment to Tenant sufficient to allow Tenant to contest to or challenge such assessment. Further, Landlord shall
provide to Tenant upon request any public information requested by the Tenant subject to the fees specified in Section
2-616 of the Code of Ordinances, Baytown, Texas. If the Tenant contests any tax, assessment or charge, the Tenant
may, unless otherwise required by law, withhold or defer only that portion of the payment, which is the subject of
Tenant's contest, or pay under protest. Prior to the date any contested taxes, assessment, or charge shall become due, the
Tenant shall perfect its contest of any tax, assessment or charge and advise the Landlord in writing that the Tenant has
contested the same and the ground.
10 Insurance, Release. and Indemnification.
(a) Disclaimer of Liability: Landlord shall not at any time be liable for injury or damage occurring to any person
or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use,
operation, condition or dismantling of the tower(s) or Tenant's Antenna Facilities.
Site Number: A3BO260A Version 10-2-01
Site Name: Baytown Barkaloo Palk 5
Market: Houston
(b)
Indemnification:
TENANT SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY, HOLD
HARMLESS, AND DEFEND LANDLORD, ITS OFFICERS, BOARDS,
COMMISSIONS, EMPLOYEES, AGENTS, ATTORNEYS, CONTRACTORS
(HEREAFTER REFERRED TO AS "INDEMNITEES"), FROM AND AGAINST:
(I) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
ACT OR OMISSION OF TENANT, ITS PERSONNEL, EMPLOYEES,
AGENTS, CONTRACTORS, OR SUBCONTRACTORS (HEREINAFTER
REFERRED TO AS "INDEMNITORS"), RESULTING IN PERSONAL
INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY
PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE
OR INTANGIBLE PROPERTY, LIBEL, SLANDER, INVASION OF
PRIVACY AND UNAUTHORIZED USE OF ANY TRADEMARK, TRADE
NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY OTHER
RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY
ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, USE
OR CONDITION OF THE PROPERTY OR TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY
FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR
REGULATION; PROVIDED, HOWEVER, THAT THE INDEMNITIES
PROVIDED BY TENANT HEREUNDER SHALL NOT EXTEND OR
APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES, PENALTIES,
LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES WHICH
ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE WORKING
ON LANDLORD'S FACILITIES ON THE NEW TOWER;
(II) ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION) REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER
CONSULTANTS), WHICH ARE IMPOSED UPON, INCURRED BY OR
ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR
SUPPLIES PROVIDED OR SUPPLIED TO TENANT, ITS
CONTRACTORS OR SUBCONTRACTORS, FOR THE INSTALLATION,
CONSTRUCTION, OPERATION, MAINTENANCE OR USE OF THE
PROPERTY OR TENANT'S ANTENNA FACILITIES, AND, UPON THE
WRITTEN REQUEST OF LANDLORD, TENANT SHALL CAUSE SUCH
CLAIM OR LIEN - COVERING LANDLORD'S PROPERTY' TO BE
DISCHARGED OR BONDED WITHIN THIRTY (30) DAYS FOLLOWING
SUCH REQUEST; AND/OR
(III) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSE
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
Site Number: A3BO260A Version 10-2-01
Site Name: Baytown Barkaloo Park 6
Market: Houston
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
FINANCING OR SECURITIES OFFERING BY TENANT OR ITS
AFFILIATES FOR VIOLATIONS OF THE COMMON LAW OR ANY
LAWS, STATUTES, OR REGULATIONS OF THE STATE OF TEXAS OR
UNITED STATES, INCLUDING THOSE OF THE FEDERAL SECURITIES
AND EXCHANGE COMMSSION, WHETHER BY TENANT OR
OTHERWISE.
TENANT'S OBLIGATION TO INDEMNIFY INDEMNITEES UNDER THIS
LEASE SHALL EXTEND TO CLAIMS, LOSSES, AND OTHER MATTERS
COVERED HEREUNDER THAT ARE CAUSED IN PART OR CONTRIBUTED
TO BY THE NEGLIGENCE OF ONE OR MORE INDEMNITEES. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND LANDLORD FROM THE CONSEQUENCES OF (I) THE
INDEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND (II) THE CONSEQUENCES OF THE
INDEMNITORS' NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE
OR CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. THIS
INDEMNITY SHALL CONTINUE NOTWITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE. THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM,
LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE
INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE
OF LANDLORD, ITS EMPLOYEES, AGENTS OR CONTRACTORS,
UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY.
(c) Assumption of Risk: Tenant undertakes and assumes for its officers, agents, contractors, subcontractors and
employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions whether
patent or latent, obvious or undiscoverable, and regardless of whether the Landlord should have known of
such dangerous conditions, if any, on or about the Property. After the initial installation of Landlord's
Facilities on the New Tower, and subject to the provisions of the last sentence of Section 6(i), in connection
with any work being performed by Landlord or its employees on the Premises, Landlord undertakes and
assumes for its officers and employees (collectively "Landlord" for the purpose of this section), all risk of
dangerous conditions whether patent or latent, obvious or undiscoverable, and regardless of whether the
Landlord should have known of such dangerous conditions, if any, on or about the Premises. Each party will
notify the other party if it becomes aware of any dangerous conditions on the Premises and/or New Tower,
but Landlord will have no duty to inspect the New Tower.
TENANT HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE INDEMNITEES AGAINST AND FROM ANY CLAIM
ASSERTED OR LIABILITY IMPOSED UPON THE INDEMNITEES FOR
PERSONAL INJURY OR PROPERTY DAMAGE TO ANY PERSON ARISING
OUT OF TENANT'S INSTALLATION, OPERATION, MAINTENANCE,
CONDITION OR USE OF THE''PROPERTY OR TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY FEDERAL,
STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND INDEMNITEES FROM THE CONSEQUENCES OF THE
Site Number: A3B0260A Version 10-2-01
Site Name: Baytown Barkaloo Park 7
Market: Houston
INDEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
SOLE OR CONCURRING CAUSE OF THE ASSERTED OR CLAIMED
LIABILITY AND (II) THE CONSEQUENCES OF THE INDEMIVITORS'
NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE OR
CONCURRING CAUSE OF THE ASSERTED OR CLAIMED LIABILITY. THIS
INDEMNITY SHALL CONTINUE NOT WITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE; PROVIDED, HOWEVER, THAT THE
INDEMNITIES PROVIDED BY TENANT HEREUNDER SHALL NOT
EXTEND OR APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES,
PENALTIES, LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES
WHICH ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE
WORKING ON LANDLORD'S FACILITIES ON THE NEW TOWER.
(d) Defense of Indemnitees: In the event any action or proceeding shall be brought against the Indemnitees by
reason of any matter for which the Indemnitees are indemnified in this Section 10 or Section 13, Tenant shall,
upon notice from any of the Indemnitees, at Tenant's sole cost and expense, resist and defend the same with
legal counsel reasonably acceptable to the Landlord, and Landlord acknowledges that such legal counsel may
be selected by Tenant's insurer; provided, however, that Tenant shall not admit liability in any such matter on
behalf of the Indemnitees without the written consent of Landlord and provided further that Indemnitees shall
not admit liability for, nor enter into any compromise or settlement of, any claim for which they are
indemnified hereunder, without the prior written consent of TENANT.
(e) Notice, cooperation and Expenses: Landlord shall give Tenant prompt notice of the making of any claim or
the commencement of any action, suit or other proceeding covered by the provisions of this Section 10.
Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses incurred by Landlord in
response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses
such as reasonable attorneys' fees and shall also include the reasonable value of any services rendered by the
Landlord's attorney, and the actual expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits, actions or proceedings but
shall not include reasonable attorneys' fees for services that are unnecessarily duplicative of services
provided Landlord by Tenant. If Tenant requests Landlord to assist it in such defense then Tenant shall pay
all expenses incurred by Landlord in response thereto, including defending itself with regard to any such
actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees
and shall also include the costs of any services rendered by the Landlord's agents, employees or expert
witnesses, and disbursements and liabilities assumed by Landlord in connection with such suits, actions or
proceedings.
(f) Insurance.
During the Initial Term and any Renewal Term, the Tenant at its own expense shall purchase, maintain and
keep in force and effect insurance against claims for injuries to or death of persons or damages to property
which may arise out of or result from the Tenant's operations and/or performance of the work under this
Lease, whether such operations and/or performance be by the Tenant, its agents, representatives, employees
or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts
any of them may be liable.
The Tenant's insurance coverage shall be primary insurance with respect to the Landlord and its volunteers
and agents. Any insurance or self-insurance maintained by Landlord, its officials, employees or volunteers
shall be considered in -excess of the Tenant's insurance - and shall not contribute to it. Further, the Tenant -
shall include all subcontractors as additional insureds under its policies or shall furnish separate certificates
and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Site Number: A3BO260A Version 10-2-01
Site Name: Baytown Barkaloo Park 8
Market: Houston
(1) Workers' Compensation Policy
■ Statutory amounts required by Texas law.
■ Employer's Liability: $500,000
(2) Commercial General Liability Policy
■ General aggregate of $2,000,000
■ Owners' and Contractors' Protective Liability of $500,000
■Products and Completed Operations of $1,000,000
■ Personal and Advertising Injury of $1,000,000
■ Minimum of $500,000 per occurrence
e Coverage shall be at least as broad as ISO CG 00 01 10 93.
■ No coverage exclusions shall be deleted from standard policy
without notification of individual exclusions being attached
for review and acceptance.
(3) Automobile Liability Policy
■ Combined single limits of $1,000,000
■ Coverage for "Any Auto."
(4) Builder's Risk
e At the start of and during the period of any construction,
■ Limit: 100% of insurable value, replacement cost basis
■ Landlord will be named a loss -payee
■ Include an installation floater or equivalent property coverage covering cables,
materials, machinery and supplies of any nature whatsoever which are to be used in or
incidental to the installation of the Antenna Facilities.
(5) Hazardous Materials Insurance
■ in an amount satisfactory to the Landlord
Prior to or upon the execution of this Lease and before commencing any of the work, the Tenant shall file
with the Landlord valid Certificates of Insurance reasonably acceptable to the Landlord. Such Certificates
shall contain a provision that coverages afforded under the policies will not be canceled, suspended, voided,
or reduced until at least thirty (30) days' prior written notice has been given to the Landlord via certified
mail, return receipt requested. Prior to the end of each coverage period during the term of this Lease, new
Certificates of Insurance must be filed with the Landlord evidencing continuation of coverage.
The Tenant shall also file with the Landlord valid Certificates of Insurance covering all Subcontractors.
The following are general requirements, which are applicable to all policies:
a. All insurance coverage required herein, except for Workers' Compensation Insurance, shall be
written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best
Key Rating Guide.
b. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted.
C. Deductibles shall be listed on the Certificate of Insurance.
d_ All policies other than those for Worker's Compensation shall be written on an occurrence and not
on a claims made basis;
e. All policies, except for employer's liability and worker's compensation policies, shall name the
Landlord, its officials, employees, and agents as "Additional Insureds". The coverage shall contain
no special limitation on the scope of protection afforded to the Landlord, its officials, employees or
volunteers.
f. A waiver of subrogation in favor of the Landlord with respect to Workers' Compensation Insurance
must be included.
g. Review of Limits: Once during each calendar year during the term of this Lease, the Landlord may
review the insurance coverages to be carried by Tenant. If Landlord determines that higher limits
Site Number: A3B0260A Version 10-2-01
Site Name: Baytown Barkaloo Park 9
Market: Houston
of coverage are necessary to protect the interests of Landlord or the Additional Insureds, Tenant
shall be so notified and shall obtain the additional limits of insurance, at its sole cost and expense.
h. If reasonably necessary to effectuate the provisions of this Section 10(f), Tenant will provide
Landlord with endorsements evidencing the insurance coverage requirements hereof. In the event
of any claim or litigation that involves or relates to the insurance that Tenant is required to maintain
under this Lease, Landlord, at its sole cost and expense, may review Tenant's insurance policies at
Tenant's headquarters in Bellevue, Washington; provided, however, that Landlord shall not
disclose the terms or provision of any such policies to any third party unless required to do so by
law or court order.
l 1. Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days
after deposit in the U.S. mail, certified and postage paid if properly addressed, or upon receipt if personally delivered or
sent by next -business -day delivery via a nationally recognized overnight courier to the addresses set forth below.
Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to.
the other party.
If to Tenant, to:
T-Mobile Texas, L.P.
2 Greenway Plaza, Suite 1100
Houston, TX 77046
Attn: Lease Administration Manager
If to Landlord, to:
City of Baytown
Attn: City Manager
2401 Market Street
Baytown, TX 77520
12. Acceptance of the Property. By taking possession of the Property, Tenant accepts the Property in the condition existing
as of the Commencement Date. Except as otherwise expressly provided in Section 13 of this Lease, Landlord makes
no representation of warranty with respect to the condition of the Property and the Landlord shall not be liable for any
latent or patent defect in the Property.
13. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (collectively,
"Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal,
state or local law or regulation. The Tenant represents and warrants that its use of the Property will not generate any
Hazardous Substance, and it will not store or dispose on the Property, nor transport to or over the Property any
Hazardous Substance in violation of any applicable law.
TENANT AGREES TO HOLD LANDLORD HARMLESS, INDEMNIFY, AND
DEFEND LANDLORD AGAINST ANY RELEASE OF ANY SUCH
HAZARDOUS SUBSTANCE CAUSED BY TENANT OR BY ANY PERSON OR
ENTITY ACTING FOR OR ON BEHALF OF TENANT AND ANY DAMAGE,
LOSS, OR EXPENSE OR LIABILITY RESULTING FROM SUCH RELEASE,
INCLUDING ALL REASONABLE ATTORNEYS' FEES, COSTS AND
PENALTIES INCURRED AS A RESULT THEREOF EXCEPT ANY RELEASE
CAUSED BY THE SOLE NEGLIGENCE OF LANDLORD, ITS EMPLOYEES,
CONTRACTORS OR AGENTS. "HAZARDOUS SUBSTANCE" SHALL BE
INTERPRETED BROADLY TO MEAN ANY SUBSTANCE OR MATERIAL
DEFINED OR DESIGNATED AS HAZARDOUS OR TOXIC WASTE,
HAZARDOUS ' OR TOXIC MATERIAL; HAZARDOUS OR TOXIC OR
RADIOACTIVE SUBSTANCE, OR OTHER SIMILAR TERM BY ANY
FEDERAL, STATE OR LOCAL ENVIRONMENTAL LAW, REGULATION OR
RULE PRESENTLY IN EFFECT OR PROMULGATED IN THE FUTURE, AS
SUCH LAWS, REGULATIONS OR RULES MAY BE AMENDED FROM TIME
TO TIME; AND IT SHALL BE INTERPRETED TO INCLUDE, BUT NOT BE
LIMITED TO, ANY SUBSTANCE WHICH AFTER RELEASE INTO THE
ENVIRONMENT WILL OR MAY REASONABLY BE ANTICIPATED TO
Site Number: A380255B Version 10-2-01
Site Name: Baytown Barkaloo Park 10
Market: Houston
CAUSE SICKNESS, DEATH OR DISEASE. IT IS THE EXPRESSED
INTENTION OF THE PARTIES HERETO, BOTH TENANT AND LANDLORD,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN
INDEMNITY BY TENANT TO INDEMNIFY, PROTECT AND DEFEND
LANDLORD FROM THE CONSEQUENCES OF THE INDEMNITEES' OWN
NEGLIGENCE WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE
OF THE DAMAGE, LOSS, OR EXPENSE OR LIABILITY AND (II) THE
CONSEQUENCES OF THE INDEMNITORS' NEGLIGENCE WHERE THAT
NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE DAMAGE,
LOSS, OR EXPENSE OR LIABILITY. THIS INDEMNITY SHALL CONTINUE
NOTWITHSTANDING TERMINATION OF THIS LEASE UNTIL ALL SUCH
CLAIMS ARE BARRED BY APPLICABLE STATUTES OF LIMITATION.
14. Assi ng_ment. Tenant may not assign this Lease and/or the license granted herein without the prior written approval of
the Landlord; provided, however, that Tenant may assign the Lease without Landlord's consent to any parent, affiliate
or subsidiary of Tenant, any party that merges or consolidates with Tenant or its parent, or any party that purchases all
or substantially all of Tenant's ownership interest or assets. Upon an assignment approved in writing by the Landlord,
or in the case of an assignment permitted without Landlord's approval, Tenant shall be relieved of all liabilities and
obligations hereunder except for those liabilities arising prior to the Landlord's consent to the assignment or the
effective date of the permitted assignment, as applicable. Assignment without the prior written consent of the Landlord
(if required under this paragraph) shall be a material breach for which the Lease may be terminated.
Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna
Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests,
including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees agree to be bound by the
terms and provisions of this Lease. In such event, Landlord shall execute a consent to leasehold financing as may
reasonably be required by Mortgagees containing term and conditions satisfactory to the Landlord.
15. Successors and Assigns. This Lease and the license shall run with the land and shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and assigns.
16. Transfer of Ownership. Tenant agrees to convey, free and clear of all liens, the New Tower structure and related
facilities to Landlord upon Lease expiration or termination. At such time, Landlord will have the right to negotiate new
leases, licenses or other agreements directly with any Carriers who may still desire to occupy the Premises and New
Tower. The Landlord may, at Landlord's option, require Tenant to remove the Antenna Facility including the New
Tower if in the Landlord's discretion the Landlord does not desire the transfer of New Tower ownership to the
Landlord upon expiration or termination of the Lease. If removed at the request of the Landlord at the expiration or
termination of the Lease, Tenant shall be obligated to restore and repair the Property to the condition it was in prior to
.the erection, of the New Tower, except for normal wear and tear as determined by the Landlord's City.. Mariager.
17. Miscellaneous.
(a) Each party agrees to furnish to the other, within twenty (20) days after request, such truthful estoppel
information as the other may reasonably request.
(b) This Lease constitutes the entire agreement and understanding of the parties regarding the subject matter
hereof, and supersedes all offers, negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and
executed by both parties.
(c) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of
Lease in substantially the form attached hereto as Exhibit C) necessary to protect its rights or use of the
Premises. The Memorandum of Lease may be recorded 'in place of this Lease by either party. Tenant may
obtain title insurance on its interest in the Premises.
(d) Tenant, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and
regulations including without limitation, laws and ordinances relating to health, marking and lighting
requirements, radio frequency emissions, or other radiation and safety requirements in connection with the
use, operation, maintenance, construction and/or installation of the Antenna Facilities and/or the Premises
and Property.
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown Barkaloo Park 1 ]
Market: Houston
(e) Neither the Tenant nor the Landlord shall be deemed in violation of this Lease if it is prevented from
performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes,
shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather
conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or
which is not in its control, and the time for performance shall be automatically extended by the period the
party is prevented from performing its obligations hereunder.
(f) This Lease shall be construed in accordance with the laws of the state in which the Property is located.
Venue shall for all purposes be in Harris County, Texas.
(g) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of
this Lease, which shall continue in full force and effect. Any questions of particular interpretation shall not
be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. No provision of
this Lease will be deemed waived by either party unless expressly waived in writing signed by the waiving
party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either
party of any provision of this Lease shall be deemed a waiver of such provision with respect to any
subsequent matter relating to such provision.
(h) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this
Lease in their individual or representative capacity as indicated.
(i) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original,
but all of which together shall constitute a single instrument.
(j) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties
understand and acknowledge that Exhibit A and Exhibit B (the Premises location within the Property), may
be attached to this Lease and the Memorandum of Lease, in preliminary form. Accordingly, the parties agree
that upon the preparation of final, more complete exhibits, Exhibits A and/or B, as the case may be, which
may have been attached hereto in preliminary form, shall be replaced with a final, more complete exhibit(s) if
approved by the Landlord. Tenant shall be responsible for all cost associated with the preparation of all
Exhibits herein described.
(k) If Tenant is represented by any broker or any other leasing agent, Tenant is responsible for all commission
fee or other payment to such agent, and agrees to indemnify and hold Landlord harmless from all claims by
such broker or anyone claiming through such broker.
(1) Whenever Landlord's consent or approval is required under any provision of this Lease, such consent or
approval will not be unreasonably withheld, conditioned or delayed.
The effective date of this Lease is the date of execution by the Landlord (the "Effective Date").
LANDLORD: City of Baytown
By:
Printed Name:
Its:
Date:
TENANT:
By:
By:
Printed Name:
Its:
Date:
T-Mobile Texas, L.P., A Delaware limited p
T-Mobile West Co oration, its General P er
Approved as to form
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown Barkaloo Park 12
Market: Houston
EXHIBIT A
Legal Description
The Property is legally described as follows:
Being a Tract of Land out of Tract 4F of the Chaparral Village Subdivision, a part of the
J. W. Singleton Survey, Abstract 709 according to the Map records of Harris County,
Texas.
Also referenced under the Harris County Appraisal District Account Number 045-013-003-0040.
Also known as Barkaloo Park, 1200 El Rancho, Baytown, TX 77521
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown Barkaloo Park
Market: Houston
EXHIBIT B
The location of the Premises within the Property (together with access and utilities)
is more particularly described and depicted as follows:
Final site specific details will be included in the Landlord's written approval referenced in Section 1(c).
Barkaloo Park
1200 El Rancho
T-Mobile Tower Premises
vw.P-.e uay e....wu.
Fe,. pd.
i�i(Wis*m)
1Untim sidewalk /
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown Barkaloo Park
Market: Houston
EXHIBIT C
Memo' randum
of
Lease
Site Number: A3B0255B
Site Name: Baytown Barkaloo Park
Market: Houston
Version 10-2-01
Memorandum of Lease
Between City of Baytown ("Landlord")
and T-Mobile Texas, L.P. ("Tenant")
A Site Lease with Option (the "Lease") by and between City of Baytown ("Landlord") and T-Mobile Texas,
L.P., a Delaware Limited Partnership, ("Tenant") was made regarding a portion of the following property:
See Attached Exhibit "A" incorporated herein for all purposes.
The Option is for a term of twelve (12) months after the Effective Date of the Lease (as defined under the
Lease), with up to one additional twelve (12) month renewal ("Option Period").
The Lease is for a term of five (5) years and will commence on the date as set forth in the Lease (the
"Commencement Date"). Tenant shall have the right to extend this Lease for five (5) additional five-year terms.
IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum effective as of
the date of the last party to sign.
LANDLORD: City of Baytown
By:
Printed Name:
Its:
Date:
TENANT:
By:
By:
Printed Name:
Its:
Date:
T-Mobile Texas, L.P., A Delaware limited partnership
T-Mobile West Corporation, its General Partner
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown Barkaloo Park
Market: Houston
]Notary block for Landlord]
[Notary block for Corporation, Partnership, Limited Liability Company]
STATE OF )
) ss.
COUNTY OF )
This instrument was acknowledged before me on
[title] of
on behalf of said
Dated:
[name of entity).
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
[Notary block for Tenant]
STATE OF TEXAS
by ,
a [type of entity],
) ss.
COUNTY OF TRAVIS )
I certify that I know or have satisfactory evidence that Jon Zumsteg is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the Area Director of Engineering and
Operations of T-Mobile Texas,:L.P:; a Delaware Limited Partnership, to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown Barkaloo Park
Market: Houston
Memorandum of Lease
EXHIBIT A
Legal Description
The Property is legally described as follows:
Being a Tract of Land out of Tract 4F of the Chaparral Village Subdivision, a part of the
J. W. Singleton Survey, Abstract 709 according to the Map records of Harris County,
Texas.
Also referenced under the Harris County Appraisal District Account Number 045-013-003-0040.
Also known as Barkaloo Park, 1200 El Rancho, Baytown, TX 77521
Site Number: A3B0255B Version 10-2-01
Site Name: Baytown Barkaloo Park
Market: Houston
SITE LEASE WITH OPTION
THIS SITE LEASE WITH OPTION (this "Lease") is by and between City of Baytown ("Landlord") and T-Mobile
Texas, L.P., a Delaware Limited Partnership ("Tenant").
Option to Lease.
(a) In consideration of the payment of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) (the "Option
and Application Fee") by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease the use of
a portion of the real property described in the attached Exhibit A (the "Property"), on the terms and
conditions set forth herein (the "Option"). The Option shall be for an initial term of twelve (12) months,
commencing on the Effective Date (as defined below) (the "Option Period").
(b) During the Option Period, and during the term of this Lease, Landlord agrees to cooperate with Tenant in
obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the
Premises (as defined below) from all applicable government and/or regulatory entities (including, without
limitation, zoning and land use authorities, and the Federal Communications Commission ("FCC")
("Governmental Approvals"). Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord,
to obtain a title report, and apply for zoning approvals, variances, and land -use permits. Landlord expressly
grants to Tenant a right of access to the Property to perform surveys, soils tests, and other engineering
procedures or environmental investigations (collectively "Investigations") on the Property necessary to
determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications,
system design, operations and Governmental Approvals. After the performance of any Investigations on the
Property, Tenant shall promptly restore the Property to the same or better condition that the Property was in
prior to such Investigations. Notwithstanding the foregoing, Tenant may not seek to change the zoning
classification of the Property without first obtaining Landlord's prior written consent and all requests for
Governmental Approvals shall be subject to the LandIord's review and approval prior to their submission.
During the Option Period, Landlord agrees that it will not interfere with Tenant's efforts to secure other
licenses and permits or authorizations that relate to other property; provided such licenses, permits and
authorizations are consistent with the purpose of this Lease which is to erect and maintain tower facilities for
use by the Landlord and the Baytown Area Water Authority. During the Option Period, Tenant may exercise
the Option by so notifying Landlord in writing, at Landlord's address in accordance with Section 11 hereof.
(c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord hereby leases to
Tenant the use of that portion of the Property sufficient for placement of the Antenna Facilities (as defined
below) together with all necessary space and easements for access and utilities., as generally described and
depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises"). Prior to the
installation of any tower and related infrastructure or any substantial modification thereof on the Premises,
Tenant shall submit a metes and bounds description of the site location and site specific design, construction
and installation plans to Landlord in writing. Tenant shall not install until the submitted plans and lists have
been approved in writing by Landlord, which approval shall not be unreasonably delayed or withheld but
may contain improvements necessary or desired by the Landlord to further the purposes of the Property and
the Landlord's use of the same. Tenant's mounting location on the New Tower will be at the height of 160',
and Landlord shall have the right to mount at any other height structurally feasible which will not interfere
with Tenant's or preexisting uses. The height of the New Tower shall be 160' AGL (Above Ground Level).
Term.
a. The initial term of this Lease shall be five (5) years commencing on the date of the exercise of the Option
(the "Commencement Date"), and terminating at midnight on the last day of the initial tern (the "Initial
Term").
b. Tenant shall have the right to extend this Lease for five (5). additional, five -year -terms (each a "Renewal
Term"); provided that the Tenant is not in default of any of the provisions of this Lease at the time of
renewal. Each Renewal Term shall be on the same terms and conditions as set forth herein, except that Rent
shall be increased by fifteen percent (15%) of the Rent paid over the preceding term This Lease may be
renewed by the Tenant for the successive Renewal Terms. In each case, the option to renew may be
exercised only if (i) Tenant gives Landlord written notice of Tenant's intention to renew the Lease at least
ninety (90) days before the expiration of the then -current term, and (ii) Tenant is not in default of any
provision under this Lease at the time such notice is given and at the time of renewal. All of the terms and
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballpark
Market: Houston EM D
conditions hereof shall apply during the Renewal Terms, unless otherwise modified in writing by the parties
hereto.
Within thirty (30) days after the expiration of this Lease, Tenant shall surrender to the Landlord possession of
the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the expiration of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after expiration of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same. Any holding over by Tenant after expiration shall
not constitute a renewal or extension or give Tenant any rights in or to the Premises. If Tenant and Landlord
are in good faith negotiations for an extension of the Lease or for a new lease, which negotiations shall in no
event exceed sixty (60) days, Tenant shall pay, as liquidated damages, the then current fair market rental
value of the Premises and the improvements thereon, as determined by the Landlord, calculated on a per diem
basis, multiplied by two (2) for the period during which Tenant possesses the Premises beyond the expiration
hereof. Such amount is reasonable in the light of the anticipated or actual harm to Landlord caused by the
Tenant's holding over, the difficulties of proof of loss, and the inconvenience of otherwise obtaining an
adequate remedy.
Within thirty (30) days after the termination of this Lease, Tenant shall surrender to the Landlord possession
of the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the termination of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after termination of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same.
3. Permitted Use. The Premises may only be used by Tenant for the transmission and reception of radio communication
signals and for the construction, installation, operation, maintenance, repair, removal or replacement of related
facilities, tower and base, antennas, microwave dishes, equipment shelters and/or cabinets. No other uses shall be
permitted on or within the Premises. It is expressly understood and agreed that the Tenant shall not use the Premises
for any unlawful purpose in violation of any valid and applicable law, regulation, or ordinance of the United States, the
State of Texas, or the City of Baytown or other lawful authority having jurisdiction over the Premises, but rather shall
conform to all such laws, regulations and ordinances. Tenant shall not cause, permit or suffer any waste, damages, or
injury''to, any portion of the Premises. Tenant shall not use the Premises unless and until the Landlord has approved in
writing the Tenant's improvements and Antenna Facilities. If Landlord fails to approve the initial plans or subsequent
plans in such a manner that Tenant's intended use of the Premises will be materially impaired, Tenant may terminate
this Lease without further liability to Landlord.
4. Rent.
(a) Tenant shall pay Landlord, as rent, SEVEN HUNDRED FIFTY AND NO1100 DOLLARS ($750.00) per
month ("Rent"). Rent shall be payable within twenty (20) days following the Commencement Date prorated
for the remainder of the month in which the Commencement Date falls and thereafter Rent will be payable
monthly in advance by the fifth day of each month to City of Baytown at Landlord's address specified in
Section 1 I below. If this Lease is terminated at a time other than on the last day of a month for a reason other
than a default by the Tenant, Rent shall be prorated as of the date of termination and all prepaid Rent shall be
refunded to Tenant.
(b) If Tenant subleases space within the Premises to any additional Carrier, the monthly Rent that Tenant pays
Landlord shall be increased by FIVE HUNDRED AND NO1100 DOLLARS ($500.00) per additional Carrier,
prorated for any partial months, and any such Rent increase shall be effective as of the commencement date of
the additional Carrier's sublease with Tenant. Tenant shall provide written proof, satisfactory to the
Landlord's City Manager, of the additional Carrier's sublease with Tenant and of the effective date of the
same within ten (10) days of such effective date. If Tenant's sublease with any additional Carrier expires or
terminates for any reason, the monthly Rent that Tenant pays Landlord pursuant to this provision solely with
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballpark 2
Market: Houston
respect to such expiring or terminating Carrier's sublease shall cease effective as of the termination date of
the sublease or the date that the Carrier's antenna facilities are removed from the Premises, whichever is
later. Tenant shall provide written proof of the termination, satisfactory to the Landlord's City Manager, of
the sublease of any additional Carrier. As used herein, "Carrier" shall mean any PCS, Cellular, or ESMR
provider or paging company, but shall not mean any governmental entity. Any additional third -party Carrier
shall be bound by the terms and conditions of Section 5 of this Lease and shall in no way interfere with the
use of the Property by the Landlord, or lessees or licensees of the Landlord with rights in the Property prior in
time to this Lease. Tenant may sublease the Premises without Landlord's consent to any Carrier (as defined
herein), but Tenant will provide Landlord written notice of any such sublease. Any other sublease of the
Premises by Tenant will be subject to Landlord's prior written consent.
(c) Tenant's right to possession and all of Landlord's obligations hereunder are expressly contingent upon the
prompt payment of Rent, and the use of the Premises by Tenant is obtained only on the condition that Rent is
paid on time. Payment of Rent is an independent covenant and all monies received by Landlord shall be
applied first to non -rent obligations of Tenant and then to Rent regardless of any notation on the check. At
any time after Landlord's receipt of a check from Tenant for Rent or for a maintenance fee, such check is not
honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any
reason, Landlord may at any time thereafter, at Landlord's sole option, require that all Rent, maintenance
fees, and other sums due from Tenant hereunder be paid by electronic funds transfer. Failure to pay any Rent
or maintenance fee as and when required will not only be considered a breach of this Lease, but also result in
interest, as specified in Section 4(d), being charged on the delinquent rental and/or maintenance payments
commencing on the date the payment first becomes overdue.
(d) If Tenant is delinquent in the payment of any rental fees for 10 days or more, after receipt of written notice from
Landlord, Tenant agrees to pay in addition to such rental, interest on the delinquent amount at the rate established
by Section 2251.025 of the Texas Government Code.
5. Interference. Tenant and its sublessees shall not use the Premises in any way which interferes with the use of the
Property by Landlord, or lessees or licensees of Landlord with rights in the Property prior in time to this Lease.
Furthermore, Tenant shall not permit any interference with the Landlord's antenna facilities placed on the any of
Tenant's tower facilities, whether by Tenant or any sublessee. Similarly, Landlord shall not use, nor shall Landlord
permit its lessees, licensees, employees, invitees or agents to use, any portion of the Premises in any way which
unreasonably interferes with the operations of Tenant. An unreasonable interference shall be deemed a material breach
by the interfering party, who shall, upon written notice from the other, be responsible for terminating said interference.
In the event any interference as prohibited herein does not cease within 72 hours, the parties acknowledge that continuing
interference may cause irreparable injury and, therefore, the injured party shall have the right, in addition to any other rights
that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately
upon written notice.
6. Improvements, Utilities; Access.
(a) Tenant shall have the right and obligation, at its expense, to erect and maintain on the Premises, in
accordance with good engineering practices and with all applicable FCC rules and regulations,
improvements, personal property and facilities necessary to operate its communications system, including,
without limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment
shelters and/or cabinets and related cables and utility lines and a location based system, including, without
limitation, antenna(s), coaxial cable, base units and other associated equipment (collectively, the "Antenna
Facilities"), as such location based system may be required by any county, state or federal
agency/department. Tenant's installation of the Antenna Facilities shall be done according to plans
developed by an engineering firm that is knowledgeable in tower construction, sealed in accordance with
State of Texas requirements, and approved in advance in writing by the Landlord. Upon completion of
construction, Tenant shall provide the Landlord with as -built drawings of the Antenna Facilities and the
improvements installed on the Premises, which show the actual location of all equipment, transmission lines
and improvements consistent with the plans approved by the Landlord. The drawings shall be accompanied
by a complete and detailed inventory of all equipment, personal property, Antenna Facilities and any other
items of Tenant's on the Property. Tenant may with the prior written consent of the Landlord alter, replace,
expand, enhance and upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall
cause all construction to occur lien -free and in compliance with all applicable laws and ordinances. Landlord
acknowledges that it shall not unreasonably interfere with any aspects of construction, except as required to
ensure compliance with all applicable laws, codes, and Lease terms. All Antenna Facilities erected by the
Tenant shall remain the exclusive property of Tenant until the expiration or termination of this Lease.
Subject to the provisions of Section 16, below, upon expiration or termination of the Lease and unless
Site Number: A3DOO7A Version 10-2-01
Site Name: Baytown Ballpark 3
Market: Houston
otherwise directed by the Landlord, ownership of the Tenant erected New Tower (as defined below) shall be
conveyed by bill of sale by Tenant to Landlord with all facilities free and clear of any or all liens occasioned
by the activities of the Tenant.
(b) Tenant, at its expense, may restrict a third parry's access to the Antenna Facilities in a manner which has
been approved in advance in writing by the Landlord. However, Tenant shall not have the right to prohibit or
otherwise restrict, the Landlord's access to the Antenna Facilities, as Landlord has the right to access and
inspect the Premises at all times during the Initial Term and any Renewal Terms; provided that Landlord
shall make no hard electrical connections to Tenant's equipment.
(c) Tenant, shall, at Tenant's expense, keep and maintain the Antenna Facilities now or hereafter located on the
Property in good repair and in a manner acceptable to the Landlord during the term of this Lease, normal wear and
tear and casualty excepted. Tenant shall keep the Premises free of debris and anything reasonably determined by
the Landlord to be of a dangerous, noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or interference. Tenant shall promptly notify Landlord of any and all damages resulting from, arising
out of, or caused to the Premises and City property surrounding the Premises, including, but not limited to,
structural damages, electrical damages, damages to fencing, irrigation systems or landscaping caused by Tenant's
operations, or by Tenant, its officers, agents, employees and invitees. Tenant shall be solely responsible for the
costs and the repair of all such damages and such repairs and/or replacements shall be completed within thirty (30)
days or such other time as agreed to by the parties and be acceptable to Landlord. The failure to successfully
complete repairs and/or replacements in a timely manner to the satisfaction of Landlord, and upon 30 days written
notice, is grounds for termination of the Lease by Landlord.
(d) At Tenant's expense, Tenant may, subject to the Landlord's prior written approval, install utilities, and
improve the present utilities on the Property (including, but not limited to, the installation of emergency
power generators). Landlord agrees to use reasonable efforts in assisting Tenant to acquire necessary utility
service. Tenant shall install separate meters for utilities used on the Property by Tenant. The installation,
maintenance and repair of such meters as well as the costs therefor shall be the responsibility of Tenant. The
Tenant shall be responsible for and pay when due all bills or invoices for utilities used on the Property during
the Initial Term and all Renewal Terms.
(e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant a non-exclusive
license to use the Property for ingress, egress, utilities and access (including access for the purposes described
in Section 1) to the Premises adequate to install and maintain utilities approved by the Landlord, which
include, but are not limited to, the installation of power and telephone service cable, and to service the
Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any Renewal Term;
provided however, the location of such utilities and access thereto is subject to the prior written approval of
the Landlord's City Manager. The license provided hereunder shall have the same term as this Lease.
(f) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises at all times during the Initial Term
of this Lease and any Renewal Tenn, except during a mandatory evacuation of the area in which the Premises
is located or other force majeure events.
(g) If there is an existing tower on the Premises currently used by Landlord for radio transmissions ("Existing
Tower"), Tenant, upon written request of the Landlord, agrees to replace the Existing Tower with a new
tower ("New Tower"), at Tenant's sole cost and expense. Landlord shall have the option to keep the Existing
Tower; otherwise, Tenant shall dispose of the Existing Tower at Tenant's expense.
(h) Tenant, at its sole cost and expense, agrees to install Landlord's initial cabling and antennas ("Landlord's
Facilities") on the New Tower on the Premises. The acquisition of such cabling and antennae shall be at
Landlord's cost.
W After the initial installation of Landlord's cabling and antennas on the Tenant's New Tower as provided in
subsection (h) of this section, Landlord shall be responsible for the maintenance of Landlord's cabling and
antennas. After the initial installation of Landlord's Facilities, Landlord and its contractors and
subcontractors must notify Tenant before doing any installation, upgrades, modifications, repair, maintenance
or other work on the New Tower. After the initial installation of Landlord's Facilities, Landlord shall be
solely responsible for all costs and expenses relating to the operation, repair, maintenance and replacement of
Landlord's Facilities, including, without limitation, utility service charges. Landlord's contractors and
subcontractors who perform work on the New Tower must obtain and maintain the same types and amounts
of insurance coverage that Tenant's contractors are required to maintain, and Tenant shall be named as an
additional insured on all liability policies maintained by Landlord's contractors and subcontractors and be
Site Number: A3DO07A Version 10-2-01
Site Name: Baytown Ballpark 4
Market: Houston
provided certificates of such insurance. Landlord will not be required to pay Tenant rent with respect to
Landlord's Facilities. Landlord warrants and represents to Tenant that only Landlord's approved contractors,
and not its employees or agents, will climb and perform any work on the New Tower on behalf of Landlord.
7. Termination. Except as otherwise provided herein. this Lease may be terminated, without any penalty or further
liability as follows:
(a) upon thirty (30) days' written notice pursuant to Section I I by Landlord if Tenant fails to cure a default for
payment of amounts due under this Lease within that thirty (30) day period;
(b) upon thirty (30) days' written notice pursuant to Section 11 by Tenant, if Tenant notifies Landlord in writing
of unacceptable results of any title report, environmental or soil tests prior to Tenant's installation of the
Antenna Facilities on the Premises, or if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels
any license (including, without limitation, an FCC license), permit or any Governmental Approval necessary
to the installation and/or operation of the Antenna Facilities or Tenant's business; or
(c) upon ninety (90) days' written notice pursuant to Section 11 by Tenant if through no fault of the Tenant, the
Premises or the Antenna Facilities are, or become unacceptable under Tenant's design or engineering
specifications for its Antenna Facilities or the communications system to which the Antenna Facilities
belong.
8. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other
rights granted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on
written notice pursuant to Section 11 hereof, to take effect immediately, if the other party (i) fails to perform any
covenant for a period of thirty (30) days after receipt of written notice thereof to cure, or (ii) commits a material breach
of this Lease and fails to diligently pursue such cure to its completion after sixty (60) days' written notice to the
defaulting party.
If Landlord is compelled or elects to pay any sum of money or do any acts that require the payment of money by reason
of the Tenant's failure or inability to perform any of the provisions of this Lease after passage of any notice and cure
period provided under any other provisions of this Lease, Tenant shall, within ten (10) days of the demand therefor,
reimburse Landlord for such reasonable, actual sums, and all such sums shall bear interest at the rate specified in
Section 2251.025 of the Texas Government Code, as amended, from the date of expenditure until the date of such
reimbursement. Other sums payable under this Lease that are not paid by Tenant when due shall bear interest at the
same rate from and after the payment due date until the date Landlord receives payment thereof.
9. Taxes. Tenant shall pay any personal property tax, real property tax or any other tax or fee which arises out of or in
connection with the Tenant's use and occupancy of the Premises and/or the presence or installation of the Antenna
Facilities of the Tenant or its sublessees until (i) the New Tower any related facilities are conveyed to and accepted by
the Landlord, and (ii) Tenant removes its Antenna Facilities from the Premises in accordance with the terms of this
Lease; provided, however, that Tenant shall pay its pro rata -share of any such taxes prior to any conveyance to
Landlord. For all purposes of this Lease, any tax assessment or charge imposed upon the Antenna Facilities, whether
classified as real property or personal property, shall be considered personalty taxes. Tenant shall make all such
payments directly to the charging authority prior to any delinquency and before any fine, interest or penalty shall
become due or be imposed by operation of law for their nonpayment. Tenant may challenge any personal property or
real property tax assessments that may affect Tenant. If Landlord receives notice of any personal property or real
property tax assessment against the Tenant, which may affect Tenant and is attributable to Tenant's use and occupancy
of the Premises and/or the presence or installation of the Antenna Facilities, Landlord shall provide timely notice of the
assessment to Tenant sufficient to allow Tenant to contest to or challenge such assessment. Further, Landlord shall
provide to Tenant upon request any public information requested by the Tenant subject to the fees specified in Section
2-616 of the Code of Ordinances, Baytown, Texas. If the Tenant contests any tax, assessment or charge, the Tenant
may, unless otherwise required by law, withhold or defer only that portion of the payment, which is the subject of
Tenant's contest, or pay under protest. Prior to the date any contested taxes, assessment, or charge shall become due, the
Tenant shall perfect its contest of any tax, assessment or charge and advise the Landlord in writing.that the Tenant has
contested the same and the ground.
10 Insurance Release, and Indemnification.
(a) Disclaimer of Liability: Landlord shall not at any time be liable for injury or damage occurring to any person
or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use,
operation, condition or dismantling of the tower(s) or Tenant's Antenna Facilities.
Site Number: A3DO07A Version 10-2-01
Site Name: Baytown Ballyark 5
Market: Houston
(b)
indemnification:
TENANT SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY, HOLD
HARMLESS, AND DEFEND LANDLORD, ITS OFFICERS, BOARDS,
COMMISSIONS, EMPLOYEES, AGENTS, ATTORNEYS, CONTRACTORS
(HEREAFTER REFERRED TO AS " I DEMNITEES"), FROM AND AGAINST:
(I) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
ACT OR OMISSION OF TENANT, ITS PERSONNEL, EMPLOYEES,
AGENTS, CONTRACTORS, OR SUBCONTRACTORS (BIEREINAFTER
REFERRED TO AS "INDEMNITORS"), RESULTING IN PERSONAL
INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY
PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE
OR INTANGIBLE PROPERTY, LIBEL, SLANDER, INVASION OF
PRIVACY AND UNAUTHORIZED USE OF ANY TRADEMARK, TRADE
NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY OTHER
RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY
ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, USE
OR CONDITION OF THE PROPERTY OR TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY
FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR
REGULATION; PROVIDED, HOWEVER, THAT THE INDEMNITIES
PROVIDED BY TENANT HEREUNDER SHALL NOT EXTEND OR
APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES, PENALTIES,
LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES WHICH
ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE WORKING
ON LANDLORD'S FACILITIES ON THE NEW TOWER;
(II) ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER
CONSULTANTS), WHICH ARE IMPOSED UPON, INCURRED BY OR
ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR
SUPPLIES PROVIDED OR SUPPLIED TO TENANT, ITS
CONTRACTORS OR SUBCONTRACTORS, FOR THE INSTALLATION,
CONSTRUCTION, OPERATION, MAINTENANCE OR USE OF _ THE
PROPERTY OR TENANT'S ANTENNA FACILITIES, AND, UPON THE
WRITTEN REQUEST OF LANDLORD, TENANT SHALL CAUSE SUCH
CLAIM OR LIEN COVERING LANDLORD'S PROPERTY TO BE
DISCHARGED OR BONDED WITHIN THIRTY (30) DAYS FOLLOWING
SUCH REQUEST; AND/OR
(III) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSE
(INCLUDING, WITHOUT LIMTATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballpark 6
Market: Houston
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
FINANCING OR SECURITIES OFFERING BY TENANT OR ITS
AFFILIATES FOR VIOLATIONS OF THE COMMON LAW OR ANY
LAWS, STATUTES, OR REGULATIONS OF THE STATE OF TEXAS OR
UNITED STATES, INCLUDING THOSE OF THE FEDERAL SECURITIES
AND EXCHANGE COMMISSION, WHETHER BY TENANT OR
OTHERWISE.
TENANT'S OBLIGATION TO INDEMNIFY INDEMNITEES UNDER THIS
LEASE SHALL EXTEND TO CLAIMS, LOSSES, AND OTHER MATTERS
COVERED HEREUNDER THAT ARE CAUSED IN PART OR CONTRIBUTED
TO BY THE NEGLIGENCE OF ONE OR MORE INDEMNITEES. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND LANDLORD FROM THE CONSEQUENCES OF (I) THE
INDEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND (II) THE CONSEQUENCES OF THE
INDEMMTORS' NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE
OR CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. THIS
INDEMNITY SHALL CONTINUE NOTWITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE. THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM,
LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE
INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE
OF LANDLORD, ITS EMPLOYEES, AGENTS OR CONTRACTORS,
UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY.
(c) Assumption of Risk: Tenant undertakes and assumes for its officers, agents, contractors, subcontractors and
employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions whether
patent or latent, obvious or undiscoverable, and regardless of whether the Landlord should have known of
such dangerous conditions, if any, on or about the Property. After the initial installation of Landlord's
Facilities on the New Tower,, and subject to the provisions of the last sentence of Section 6(i), in connection
with any work being performed by Landlord or its employees on the Premises, Landlord undertakes and
assumes for its officers and employees (collectively "Landlord" for the purpose of this section), all risk of
dangerous conditions whether patent or latent, obvious or undiscoverable, and regardless of whether the
Landlord should have known of such dangerous conditions, if any, on or about the Premises. Each party will
notify the other party if it becomes aware of any dangerous conditions on the Premises and/or New Tower,
but Landlord will have no duty to inspect the New Tower.
TENANT HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE INDEMNITEES AGAINST AND FROM ANY CLAIM
ASSERTED OR LIABILITY IMPOSED UPON THE INDEMNITEES FOR
PERSONAL INJURY OR PROPERTY DAMAGE TO ANY PERSON ARISING
OUT OF TENANT'S INSTALLATION, OPERATION, MAINTENANCE,
`CONDITION* OR`* USE OF THE PROPERTY OR TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH .ANY FEDERAL,
STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND INDEMNITEES FROM THE CONSEQUENCES OF THE
Site Number: A3DO07A Version 10-2-01
Site Name: Baytoivn Ballpark 7
Market: Houston
I.NDEM1vITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
SOLE OR CONCURRING CAUSE OF THE ASSERTED OR CLAIMED
LIABILITY AND (II) THE CONSEQUENCES OF THE INDEMNITORS'
NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE OR
CONCURRING CAUSE OF THE ASSERTED OR CLAIMED LIABILITY. THIS
INDEMNITY SHALL CONTINUE NOT WITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE; PROVIDED, HOWEVER, THAT THE
INDEMNITIES PROVIDED BY TENANT HEREUNDER SHALL NOT
EXTEND OR APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES,
PENALTIES, LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES
WHICH ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE
WORKING ON LANDLORD'S FACILITIES ON THE NEW TOWER.
(d) Defense of Indemnitees: In the event any action or proceeding shall be brought against the Indemnitees by
reason of any matter for which the Indemnitees are indemnified in this Section 10 or Section 13, Tenant shall,
upon notice from any of the Indemnitees, at Tenant's sole cost and expense, resist and defend the same with
legal counsel reasonably acceptable to the Landlord, and Landlord acknowledges that such legal counsel may
be selected by Tenant's insurer; provided, however, that Tenant shall not admit liability in any such matter on
behalf of the Indemnitees without the written consent of Landlord and provided further that Indemnitees shall
not admit liability for, nor enter into any compromise or settlement of, any claim for which they are
indemnified hereunder, without the prior written consent of TENANT.
(e) Notice, cooperation and Expenses: Landlord shall give Tenant prompt notice of the making of any claim or
the commencement of any action, suit or other proceeding covered by the provisions of this Section 10.
Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses incurred by Landlord in
response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses
such as reasonable attorneys' fees and shall also include the reasonable value of any services rendered by the
Landlord's attorney, and the actual expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits, actions or proceedings but
shall not include reasonable attorneys' fees for services that are unnecessarily duplicative of services
provided Landlord by Tenant. If Tenant requests Landlord to assist it in such defense then Tenant shall pay
all expenses incurred by Landlord in response thereto, including defending itself with regard to any such
actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees
and shall also include the costs of any services rendered by the Landlord's agents, employees or expert
witnesses, and- disbursements and liabilities assumed by Landlord in connection with such suits, actions or
proceedings.
(f) Insurance.
During the Initial Term and any Renewal Term, the Tenant at its own expense shall purchase, maintain and
keep in force and effect insurance against claims for injuries to or death of persons or damages to property
which may arise out of or result from the Tenant's operations and/or performance of the work under this
Lease, whether such operations and/or performance be by the Tenant, its agents, representatives, employees
or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts
any of them may be liable.
The Tenant's insurance coverage shall be primary insurance with respect to the Landlord and its volunteers
and agents. Any insurance or self-insurance maintained by Landlord, its officials, employees or volunteers
shall be considered in excess of -the Tenant's insurance and shall not contribute to .it: • •Further, the Tenant!
shall include all subcontractors as additional insureds under its policies or shall furnish separate certificates
and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballp 8
Market: Houston
(1) Workers' Compensation Policy
■ Statutory amounts required by Texas law.
■ Employer's Liability: $500,000
(2) Commercial General Liability Policy
■ General aggregate of $2,000,000
■ Owners' and Contractors' Protective Liability of $500,000
■Products and Completed Operations of $1,000,000
■ Personal and Advertising Injury of $1,000,000
■ Minimum of $500,000 per occurrence
■ Coverage shall be at least as broad as ISO CG 00 01 10 93.
■ No coverage exclusions shall be deleted from standard policy
without notification of individual exclusions being attached
for review and acceptance.
(3) Automobile Liability Policy
■ Combined single limits of $1,000,000
■ Coverage for "Any Auto."
(4) Builder's Risk
■ At the start of and during the period of any construction,
■ Limit: 100% of insurable value, replacement cost basis
■ Landlord will be named a loss -payee
■ Include an installation floater or equivalent property coverage covering cables,
materials, machinery and supplies of any nature whatsoever which are to be used in or
incidental to the installation of the Antenna Facilities.
(5) Hazardous Materials Insurance
■ in an amount satisfactory to the Landlord
Prior to or upon the execution of this Lease and before commencing any of the work, the Tenant shall file
with the Landlord valid Certificates of Insurance reasonably acceptable to the Landlord. Such Certificates
shall contain a provision that coverages afforded under the policies will not be canceled, suspended, voided,
or reduced until at least thirty (30) days' prior written notice has been given to the Landlord via certified
mail, return receipt requested. Prior to the end of each coverage period during the term of this Lease, new
Certificates of Insurance must be filed with the Landlord evidencing continuation of coverage.
The Tenant shall also file with the Landlord valid Certificates of Insurance covering all Subcontractors.
The following are general requirements, which are applicable to all policies:
a. All insurance coverage required herein, except for Workers' Compensation Insurance, shall be
written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best
Key Rating Guide.
b. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted.
C. Deductibles shall be listed on the Certificate of Insurance.
d. All policies other than those for Worker's Compensation shall be written on an occurrence and not
on a claims made basis;
e. All policies, except for employer's liability and worker's compensation policies, shall name the
Landlord, its officials, employees, and agents as "Additional Insureds". The coverage shall contain
no special limitation on the scope of protection afforded to the Landlord, its officials, employees or
volunteers.
f. A waiver of subrogation in favor of the Landlord with respect to Workers' Compensation Insurance
must be included.
g. Review of Limits: Once during each calendar year during the term of this Lease, the Landlord may
review the insurance coverages to be carried by Tenant. If Landlord determines that higher limits
Site Number: A3DO07A Version 10-2-01
Site Name: Baytown Ballpark 9
Market: Houston
of coverage are necessary to protect the interests of Landlord or the Additional Insureds, Tenant
shall be so notified and shall obtain the additional limits of insurance, at its sole cost and expense.
h. If reasonably necessary to effectuate the provisions of this Section 10(f), Tenant will provide
Landlord with endorsements evidencing the insurance coverage requirements hereof. In the event
of any claim or litigation that involves or relates to the insurance that Tenant is required to maintain
under this Lease, Landlord, at its sole cost and expense, may review Tenant's insurance policies at
Tenant's headquarters in Bellevue, Washington; provided, however, that Landlord shall not
disclose the terms or provision of any such policies to any third party unless required to do so by
law or court order.
11. Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days
after deposit in the U.S. mail, certified and postage paid if properly addressed, or upon receipt if personally delivered or
sent by next -business -day delivery via a nationally recognized overnight courier to the addresses set forth below.
Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to
the other party.
If to Tenant. to:
T-Mobile Texas, L.P.
2 Greenway Plaza, Suite 1100
Houston, TX 77046
Attn: Lease Administration Manager
If to Landlord, to:
City of Baytown
Attn: City Manager
2401 Market Street
Baytown, TX 77520
12. Acceptance of the Property. By taking possession of the Property, Tenant accepts the Property in the condition existing
as of the Commencement Date. Except as otherwise expressly provided in Section 13 of this Lease, Landlord makes
no representation of warranty with respect to the condition of the Property and the Landlord shall not be liable for any
latent or patent defect in the Property.
13. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (collectively,
"Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal,
state or local law or regulation. The Tenant represents and warrants that its use of the Property will not generate any
Hazardous Substance, and it will not store or dispose on the Property, nor transport to or over the Property any
Hazardous Substance in violation of any applicable law.
TENANT AGREES TO HOLD LANDLORD HARMLESS, INDEMNIFY; 'AND`
DEFEND LANDLORD AGAINST ANY RELEASE OF ANY SUCH
HAZARDOUS SUBSTANCE CAUSED BY TENANT OR BY ANY PERSON OR
ENTITY ACTING FOR OR ON BEHALF OF TENANT AND ANY DAMAGE,
LOSS, OR EXPENSE OR LIABILITY RESULTING FROM SUCH RELEASE,
INCLUDING ALL REASONABLE ATTORNEYS' FEES, COSTS AND
PENALTIES INCURRED AS A RESULT THEREOF EXCEPT ANY RELEASE
CAUSED BY THE SOLE NEGLIGENCE OF LANDLORD, ITS EMPLOYEES,
CONTRACTORS OR AGENTS. "HAZARDOUS SUBSTANCE" SHALL BE
INTERPRETED BROADLY TO MEAN ANY SUBSTANCE OR MATERIAL
DEFINED OR DESIGNATED AS HAZARDOUS OR TOXIC WASTE,
HAZARDOUS OR TOXIC MATERIAL, HAZARDOUS OR TOXIC OR
RADIOACTIVE SUBSTANCE, OR OTHER SIMILAR TERM BY ANY
FEDERAL, STATE OR LOCAL ENVIRONMENTAL LAW, REGULATION OR
RULE PRESENTLY IN EFFECT OR PROMULGATED IN THE FUTURE, AS
SUCH LAWS, REGULATIONS OR RULES MAY BE AMENDED FROM TEVIE
TO TIME; AND IT SHALL BE INTERPRETED TO INCLUDE, BUT NOT BE
LIMITED TO, ANY SUBSTANCE WHICH AFTER RELEASE INTO THE
ENVIRONMENT WILL OR MAY REASONABLY BE ANTICIPATED TO
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballpark 10
Market: Houston
CAUSE SICKNESS, DEATH OR DISEASE. IT IS THE EXPRESSED
INTENTION OF THE PARTIES HERETO, BOTH TENANT AND LANDLORD,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN
INDEMNITY BY TENANT TO INDEMNIFY, PROTECT AND DEFEND
LANDLORD FROM THE CONSEQUENCES OF THE INDEMNITEES' OWN
NEGLIGENCE WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE
OF THE DAMAGE, LOSS, OR EXPENSE OR LIABILITY AND (II) THE
CONSEQUENCES OF THE INDEMNITORS' NEGLIGENCE WHERE THAT
NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE DAMAGE,
LOSS, OR EXPENSE OR LIABILITY. THIS INDEMNITY SHALL CONTINUE
NOTWITHSTANDING TERMINATION OF THIS LEASE UNTIL ALL SUCH
CLAIMS ARE BARRED BY APPLICABLE STATUTES OF LIMITATION.
14. Assignment. Tenant may not assign this Lease and/or the license granted herein without the prior written approval of
the Landlord; provided, however, that Tenant may assign the Lease without Landlord's consent to any parent, affiliate
or subsidiary of Tenant, any parry that merges or consolidates with Tenant or its parent, or any party that purchases all
or substantially all of Tenant's ownership interest or assets. Upon an assignment approved in writing by the Landlord,
or in the case of an assignment permitted without Landlord's approval, Tenant shall be relieved of all liabilities and
obligations hereunder except for those liabilities arising prior to the Landlord's consent to the assignment or the
effective date of the permitted assignment, as applicable. Assignment without the prior written consent of the Landlord
(if required under this paragraph) shall be a material breach for which the Lease may be terminated.
Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna
Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests,
including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees agree to be bound by the
terms and provisions of this Lease. In such event, Landlord shall execute a consent to leasehold financing as may
reasonably be required by Mortgagees containing term and conditions satisfactory to the Landlord.
15. Successors and Assigns. This Lease and the license shall run with the land and shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and assigns.
16. Transfer of Ownership. Tenant agrees to convey, free and clear of all liens, the New Tower structure and related
facilities to Landlord upon Lease expiration or termination. At such time, Landlord will have the right to negotiate new
leases, licenses or other agreements directly with any Carriers who may still desire to occupy the Premises and New
Tower. The Landlord may, at Landlord's option, require Tenant to remove the Antenna Facility including the New
Tower if in the Landlord's discretion the Landlord does not desire the transfer of New Tower ownership to the
Landlord upon expiration or termination of the Lease. If removed at the request of the Landlord at the expiration or
termination of the Lease, Tenant shall be obligated to restore and repair the Property to the condition it was in prior to
the ercction of the New Tower, except for normal wear and tear as determined by the Landlord's City. Manager.
17. Miscellaneous.
(a) Each party agrees to furnish to the other, within twenty (20) days after request, such truthful estoppel
information as the other may reasonably request.
(b) This Lease constitutes the entire agreement and understanding of the parties regarding the subject matter
hereof, and supersedes all offers, negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and
executed by both parties.
(c) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of
Lease in substantially the form attached hereto as Exhibit C necessary to protect its rights or use of the
Premises. The Memorandum of Lease may be recorded in place'of this Lease by either party. Tenant may
obtain title insurance on its interest in the Premises.
(d) Tenant, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and
regulations including without limitation, laws and ordinances relating to health, marking and lighting
requirements, radio frequency emissions, or other radiation and safety requirements in connection with the
use, operation, maintenance, construction and/or installation of the Antenna Facilities and/or the Premises
and Property.
Site Number. A3D007A Version 10-2-01
Site Name: Baytown Ballpark 1 l
Market: Houston
(e) Neither the "Tenant nor the Landlord shall be deemed in violation of this Lease if it is prevented from
performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes. embargoes,
shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather
conditions. floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or
which is not in its control, and the time for performance shall be automatically extended by the period the
party is prevented from performing its obligations hereunder.
(f) This Lease shall be construed in accordance with the laws of the state in which the Property is located.
Venue shall for all purposes be in Harris County, Texas.
(g) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of
this Lease, which shall continue in full force and effect. Any questions of particular interpretation shall not
be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. No provision of
this Lease will be deemed waived by either party unless expressly waived in writing signed by the waiving
party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either
party of any provision of this Lease shall be deemed a waiver of such provision with respect to any
subsequent matter relating to such provision.
(h) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this
Lease in their individual or representative capacity as indicated.
(i) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original,
but all of which together shall constitute a single instrument.
(j) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties
understand and acknowledge that Exhibit A and Exhibit B (the Premises location within the Property), may
be attached to this Lease and the Memorandum of Lease, in preliminary form. Accordingly, the parties agree
that upon the preparation of final, more complete exhibits, Exhibits A and/or B, as the case may be, which
may have been attached hereto in preliminary form, shall be replaced with a final, more complete exhibit(s) if
approved by the Landlord. Tenant shall be responsible for all cost associated with the preparation of all
Exhibits herein described.
(k) If Tenant is represented by any broker or any other leasing agent, Tenant is responsible for all commission
fee or other payment to such agent, and agrees to indemnify and hold Landlord harmless from all claims by
such broker or anyone claiming through such broker.
(1) Whenever Landlord's consent or approval is required under any provision of this Lease, such consent or
approval will not be unreasonably withheld, conditioned or delayed.
The effective date of this Lease is the date of execution by the Landlord (the "Effective Date").
LAI�DI b'11D: City of Baytown '
By:
Printed Name:
Its:
Date:
TENANT:
By:
By:
Printed Name:
Its:
Date:
T-Mobile Texas, L.P., A Delaware limited partnership
T- ile West- a ratio its Ge al Partner
ZX
Approved as to form
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ball -park 12
Market: Houston
EXHIBIT A
Legal Description
The Property is legally described as follows:
Being ten acres of land out of the Whitney Britton Survey, Harris County, Texas, a part of the
15.4959 acre tract of land conveyed to W.J. Nold, Bishop of Galveston Diocese of the Catholic
Church by deed recorded in Volume 3140 at Page 397 of the Deed Records of Harris County,
Texas and being Harris County Clerk's File No. 1587077, and being more particularly described
by metes and bounds as follows:
Beginning at the most Westerly corner of the above -mentioned 15.4959 acre tract of land, said
point being the intersection of the South right-of-way line of Ward Road with the South line of
the Whitney Britton Survey;
THENCE Northeasterly along the South or Southeast right-of-way line of Ward Road with 9° 20'
10" curve to the left, a distance of 82.48 feet to a 5/8" iron rod marking the point of tangency of
said curve:
THENCE North 67123' East with the South or Southeast right-of-way line of Ward Road, a
distance of 107.52 feet to a point for corner and Place of Beginning of the ten acre tract of land
conveyed hereby;
THENCE North 67' 23' East with the Southeast right-of-way line of Ward Road (80 feet wide)
45 8.3 5 feet to the beginning of a curve:
THENCE Easterly with the Southerly right-of-way line of said Ward Road along a curve to the
right, having a radius of 1 ] 06.28 feet through a central angle of 13' 22', a distance of 258.09 feet
to the end of said curve:
THENCE North 80" 45' East continuing with the South or Southeast right-of-way line of Ward
Road 320.03 feet to a 5/8" rod set for the Northeast corner of this tract,-..
THENCE South 10' 07' 28" East parallel to the East line of said Galveston Diocese 15.4959
acres 681.13 feet to a 5/8" rod set for the Southeast corner on the Northeast line of the Wm. Scott
Lower League Survey, A-65, being the Southwest line of the Whitney Britton Survey and
Northeast line of the Wm. Taylor Partition described in Deed Recorded in Volume 3945 at Page
517, et seq:
THENCE North 76° 42' 03" West along the general course of an old fence and dividing line
between the Wm. Scott and Whitney Britton Surveys with the Northeast line of said Wm. Taylor
Partition 1084.26 feet to a 5/8" rod for Southwest corner of the herein described tract, being the
Southeast corner of the City of Baytown .0.2899 acres;
THENCE North 22' 37' West with the Easterly line of said 0.2899 acres 132.93 feet to the Place
of Beginning, containing 10 acres of land.
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballpark
Market: Houston
EXHIBIT B
The location of the Premises within the Property (together with access and utilities)
is more particularly described and depicted as follows:
Final site specific details will be included in the Landlord's written approval referenced in Section 1(c).
Ward Street Ballpark
T-Mobile Proposed Lease
Premises Location
Site Number. A3D007A
Site Name: Baytown Ballpark
Market: Houston
Version 10-2-01
EXHIBIT C
Memorandum
of
Lease
Site Number. A3D007A Version 10-2-01
Site Name- Baytown Ballpark
Market: Houston
Memorandum of Lease
Between City of Baytown ("Landlord")
and T-Mobile Texas, L.P. ("Tenant")
A Site Lease with Option (the "Lease") by and between City of Baytown ("Landlord") and T-Mobile Texas,
L.P., a Delaware Limited Partnership, ("Tenant") was made regarding a portion of the following property:
See Attached Exhibit "A" incorporated herein for all purposes.
The Option is for a term of twelve (12) months after the Effective Date of the Lease (as defined under the
Lease), with up to one additional twelve (12) month renewal ("Option Period").
The Lease is for a term of five (5) years and will commence on the date as set forth in the Lease (the
"Commencement Date"). Tenant shall have the right to extend this Lease for five (5) additional five-year terms.
IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum effective as of
the date of the last party to sign.
LANDLORD: City of Baytown
By:
Printed Name:
Its:
Date:
TENANT: T-Mobile Texas, L.P., A Delaware limited partnership
By: T-Mobile West Corporation, its General Partner
�M
By: l
Printed Name: Jori Zamste /
Its: Area Director of Engineering and Operations
Date:
SiteNumbev A3D007A Version 10-2-01
Site Name: Baytown Ballpark
Market: Houston
[Notary block for Landlord]
[Notary block for Corporation, Partnership, Limited Liability Company]
STATE OF )
) ss.
COUNTY OF __ )
This instrument was acknowledged before me on
[title] of
on behalf of said [name of entity].
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
[Notary block for Tenant]
STATE OF TEXAS )
) ss.
COUNTY OF TR.A.VIS )
by ,
a [type of entity],
I certify that I know or have satisfactory evidence that Jon Zumsteg is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the Area Director of Engineering and
Operations of T-Mobile Texas; I:,'k, a'Delaware Limited Partnership, to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballpark
Market: Houston
Memorandum of Lease
EXHIBIT A
Legal Description
The Property is legally described as follows:
Being ten acres of land out of the Whitney Britton Survey, Harris County, Texas, a part of the
15.4959 acre tract of land conveyed to W.J. Nold, Bishop of Galveston Diocese of the Catholic
Church by deed recorded in Volume 3140 at Page 397 of the Deed Records of Harris County,
Texas and being Harris County Clerk's File No. 1587077, and being more particularly described
by metes and bounds as follows:
Beginning at the most Westerly corner of the above -mentioned 15.4959 acre tract of land, said
point being the intersection of the South right-of-way line of Ward Road with the South line of
the Whitney Britton Survey;
THENCE Northeasterly along the South or Southeast right-of-way line of Ward Road with 9° 20'
10" curve to the left, a distance of 82.48 feet to a 5/8" iron rod marking the point of tangency of
said curve:
THENCE North 670 23' East with the South or Southeast right-of-way line of Ward Road, a
distance of 107.52 feet to a point for corner and Place of Beginning of the ten acre tract of land
conveyed hereby;
THENCE North 67' 23' East with the Southeast right-of-way line of Ward Road (80 feet wide)
458.35 feet to the beginning of a curve:
THENCE Easterly with the Southerly right-of-way line of said Ward Road along a curve to the
right, having a radius of 1106.28 feet through a central angle of 130 22', a distance of 258.09 feet
to the end of said curve:
THENCE North 80° 45' East continuing with the South or Southeast right-of-way line of Ward
Road 320:03 feet to a-5/8".rod set for the Northeast corner of this tract: - , I .. 1. ..
THENCE South 10* 07' 28" East parallel to the East line of said Galveston Diocese 15.4959
acres 681.13 feet to a 5/8" rod set for the Southeast corner on the Northeast line of the Wm. Scott
Lower League Survey, A-65, being the Southwest line of the Whitney Britton Survey and
Northeast line of the Wm. Taylor Partition described in Deed Recorded in Volume 3945 at Page
517, et seq:
THENCE North 76' 42' 03" West along the general course of an old fence and dividing line
between the Wm. Scott and Whitney Britton Surveys with the Northeast line of said Wm. Taylor
Partition 1084.26 feet to a 5/8" rod for Southwest corner of the herein described tract, being the
Southeast corner of the City of Baytown 0.2899 acres;
THENCE North 220 37' West with the Easterly line of said 0.2899 acres 132.93 feet to the Place
of Beginning, containing 10 acres of land.
Site Number: A3D007A Version 10-2-01
Site Name: Baytown Ballpark
Market: Houston
SITE LEASE WITH OPTION
THIS SITE LEASE WITH OPTION (this "Lease") is by and between City of Baytown ("Landlord") and T-Mobile
Texas, L.P., a Delaware Limited Partnership ("Tenant").
Option to Lease.
(a) In consideration of the payment of ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) (the "Option
and Application Fee") by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease the use of
a portion of the real property described in the attached Exhibit A (the "Property"), on the terms and
conditions set forth herein (the "Option"). The Option shall be for an initial term of twelve (12) months,
commencing on the Effective Date (as defined below) (the "Option Period").
(b) During the Option Period, and during the term of this Lease, Landlord agrees to cooperate with Tenant in
obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the
Premises (as defined below) from all applicable government and/or regulatory entities (including, without
limitation, zoning and land use authorities, and the Federal Communications Commission ("FCC")
("Governmental Approvals"). Landlord agrees to cooperate with and to allow Tenant, at no cost to Landlord,
to obtain a title report, and apply for zoning approvals, variances, and land -use permits. Landlord expressly
grants to Tenant a right of access to the Property to perform surveys, soils tests, and other engineering
procedures or environmental investigations (collectively "Investigations") on the Property necessary to
determine that Tenant's use of the Premises will be compatible with Tenant's engineering specifications,
system design, operations and Governmental Approvals. After the performance of any Investigations on the
Property, Tenant shall promptly restore the Property to the same or better condition that the Property was in
prior to such Investigations. Notwithstanding the foregoing, Tenant may not seek to change the zoning
classification of the Property without first obtaining Landlord's prior written consent and all requests for
Governmental Approvals shall be subject to the Landlord's review and approval prior to their submission.
During the Option Period, Landlord agrees that it will not interfere with Tenant's efforts to secure other
licenses and permits or authorizations that relate to other property; provided such licenses, permits and
authorizations are consistent with the purpose of this Lease which is to erect and maintain tower facilities for
use by the Landlord and the Baytown Area Water Authority. During the Option Period, Tenant may exercise
the Option by so notifying Landlord in writing, at Landlord's address in accordance with Section 11 hereof.
(c) If Tenant exercises the Option, then, subject to the following terms and conditions, Landlord hereby leases to
Tenant the use of that portion of the Property sufficient for placement of the Antenna Facilities (as defined
below) together with all necessary space and easements for access and utilities, as generally described and
depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises"). Prior to the
installation of any tower and related infrastructure or any substantial modification thereof on the Premises,
Tenant shall submit a metes and bounds description of the site location and site specific design, construction
and installation plans to Landlord in writing. Tenant shall not install until the submitted plans and lists have
been approved in writing by Landlord, which approval shall not be unreasonably delayed or withheld but
may contain improvements necessary or desired by the Landlord to further the purposes of the Property and
the Landlord's use of the same. Tenant's mounting location on the New Tower will be at the height of 160',
and Landlord shall have the right to mount at any other height structurally feasible which will not interfere
with Tenant's or preexisting uses. The height of the New Tower shall be 160' AGL (Above Ground Level).
2. Term.
a. The initial term of this Lease shall be five (5) years commencing on the date of the exercise of the Option
(the "Commencement Date"), and terminating at midnight on the last day of the initial term (the "Initial
Term").
b. Tenant shall have the right to extend this Lease for five (5) additional, five-year terms (each a "Renewal
Term"); provided that the Tenant is not in default of any of the provisions of this Lease at the time of
renewal. Each Renewal Term shall be on the same terms and conditions as set forth herein, except that Rent
shall be increased by fifteen percent (15%) of the Rent paid over the preceding term This Lease may be
renewed by the Tenant for the successive Renewal Terms. In each case, the option to renew may be
exercised only if (i) Tenant gives Landlord written notice of Tenant's intention to renew the Lease at least
ninety (90) days before the expiration of the then -current term, and (ii) Tenant is not in default of any
provision under this Lease at the time such notice is given and at the time of renewal. All of the terms and
Site Number: A3B0261A Version ID-2-0]
Site Name: Baytown Pinehurst
Market: Houston
conditions hereof shall apply during the Renewal Terms, unless otherwise modified in writing by the parties
hereto.
C. Within thirty (30) days after the expiration of this Lease, Tenant shall surrender to the Landlord possession of
the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the expiration of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after expiration of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same. Any holding over by Tenant after expiration shall
not constitute a renewal or extension or give Tenant any rights in or to the Premises. If Tenant and Landlord
are in good faith negotiations for an extension of the Lease or for a new lease, which negotiations shall in no
event exceed sixty (60) days, Tenant shall pay, as liquidated damages, the then current fair market rental
value of the Premises and the improvements thereon, as determined by the Landlord, calculated on a per diem
basis, multiplied by two (2) for the period during which Tenant possesses the Premises beyond the expiration
hereof. Such amount is reasonable in the light of the anticipated or actual harm to Landlord caused by the
Tenant's holding over, the difficulties of proof of loss, and the inconvenience of otherwise obtaining an
adequate remedy.
Within thirty (30) days after the termination of this Lease, Tenant shall surrender to the Landlord possession
of the Premises and Tenant shall remove the antennas and other personalty owned by Tenant which is not
required to be conveyed to the Landlord in accordance with Section 16. Tenant shall leave the surrendered
portion of the Premises, including the improvements thereon, in a good condition subject to ordinary wear
and tear as determined at the sole discretion of the City Manager. Tenant shall be responsible for all damage
to the improvements and the Premises occasioned by such removal. All property that Tenant is required to
surrender shall become Landlord's property at the termination of the Lease. All property that Tenant is not
required to surrender but that Tenant fails to remove within thirty (30) days after termination of this Lease
shall be deemed abandoned, and Landlord, at its election, has the right to take possession of such property or
charge Tenant for the removal or demolition of the same.
3. Permitted Use. The Premises may only be used by Tenant for the transmission and reception of radio communication
signals and for the construction, installation, operation, maintenance, repair, removal or replacement of related
facilities, tower and base, antennas, microwave dishes, equipment shelters and/or cabinets. No other uses shall be
permitted on or within the Premises. It is expressly understood and agreed that the Tenant shall not use the Premises
for any unlawful purpose in violation of any valid and applicable law, regulation, or ordinance of the United States, the
State of Texas, or the City of Baytown or other lawful authority having jurisdiction over the Premises, but rather shall
conform to all such laws, regulations and ordinances. Tenant shall not cause, permit or suffer any waste, damages, or
injury to, any portion of the Premises. Tenant shall not use the Premises unless and 'until the Landlord has approved in
writing the Tenant's improvements and Antenna Facilities. If Landlord fails to approve the initial plans or subsequent
plans in such a manner that Tenant's intended use of the Premises will be materially impaired, Tenant may terminate
this Lease without further liability to Landlord.
4. Rent.
(a) Tenant shall pay Landlord, as rent, SEVEN HUNDRED FIFTY AND N0/100 DOLLARS ($750.00) per
month ("Rent"). Rent shall be payable within twenty (20) days following the Commencement Date prorated
for the remainder of the month in which the Commencement Date falls and thereafter Rent will be payable
monthly in advance by the fifth day of each month to City of Baytown at Landlord's address specified in
Section 11 below. If this Lease is terminated at a time other than on the last day of a month for a reason other
than a default by the Tenant, Rent shall be prorated as of the date of termination and all prepaid Rent shall be
refunded to Tenant.
(b) If Tenant subleases space within the Premises to any additional Carrier, the monthly Rent that Tenant pays
Landlord shall be increased by FIVE HUNDRED AND NO/100 DOLLARS ($500.00) per additional Carrier,
prorated for any partial months, and any such Rent increase shall be effective as of the commencement date of
the additional Carrier's sublease with Tenant. Tenant shall provide written proof, satisfactory to the
Landlord's City Manager, of the additional Carrier's sublease with Tenant and of the effective date of the
same within ten (10) days of such effective date. If Tenant's sublease with any additional Carrier expires or
terminates for any reason, the monthly Rent that Tenant pays Landlord pursuant to this provision solely with
Site Number: A3B0261A Version 10-2-01
Site Name: Baytown Pinehurst 2
Market: Houston
respect to such expiring or terminating Carrier's sublease shall cease effective as of the termination date of
the sublease or the date that the Carrier's antenna facilities are removed from the Premises, whichever is
later. Tenant shall provide written proof of the termination, satisfactory to the Landlord's City Manager, of
the sublease of any additional Carrier. As used herein, "Carrier" shall mean any PCS, Cellular, or ESMR
provider or paging company, but shall not mean any governmental entity. Any additional third -party Carrier
shall be bound by the terms and conditions of Section 5 of this Lease and shall in no way interfere with the
use of the Property by the Landlord, or lessees or licensees of the Landlord with rights in the Property prior in
time to this Lease. Tenant may sublease the Premises without Landlord's consent to any Carrier (as defined
herein), but Tenant will provide Landlord written notice of any such sublease. Any other sublease of the
Premises by Tenant will be subject to Landlord's prior written consent.
(c) Tenant's right to possession and all of Landlord's obligations hereunder are expressly contingent upon the
prompt payment of Rent, and the use of the Premises by Tenant is obtained only on the condition that Rent is
paid on time. Payment of Rent is an independent covenant and all monies received by Landlord shall be
applied first to non -rent obligations of Tenant and then to Rent regardless of any notation on the check. At
any time after Landlord's receipt of a check from Tenant for Rent or for a maintenance fee, such check is not
honored by the drawing financial institution due to insufficient funds or is otherwise dishonored twice for any
reason, Landlord may at any time thereafter, at Landlord's sole option, require that all Rent, maintenance
fees, and other sums due from Tenant hereunder be paid by electronic funds transfer. Failure to pay any Rent
or maintenance fee as and when required will not only be considered a breach of this Lease, but also result in
interest, as specified in Section 4(d), being charged on the delinquent rental and/or maintenance payments
commencing on the date the payment first becomes overdue.
(d) If Tenant is delinquent in the payment of any rental fees for 10 days or more, after receipt of written notice from
Landlord, Tenant agrees to pay in addition to such rental, interest on the delinquent amount at the rate established
by Section 2251.025 of the Texas Government Code.
Interference. Tenant and its sublessees shall not use the Premises in any way which interferes with the use of the
Property by Landlord, or lessees or licensees of Landlord with rights in the Property prior in time to this Lease.
Furthermore, Tenant shall not permit any interference with the Landlord's antenna facilities placed on the any of
Tenant's tower facilities, whether by Tenant or any sublessee. Similarly, Landlord shall not use, nor shall Landlord
permit its lessees, licensees, employees, invitees or agents to use, any portion of the Premises in any way which
unreasonably interferes with the operations of Tenant. An unreasonable interference shall be deemed a material breach
by the interfering party, who shall, upon written notice from the other, be responsible for terminating said interference.
In the event any interference as prohibited herein does not cease within 72 hours, the parties acknowledge that continuing
interference may cause irreparable injury and, therefore, the injured party shall have the right, in addition to any other rights
that it may have at law or in equity, to bring a court action to enjoin such interference or to terminate this Lease immediately
upon written notice.
6. Improvements: Utilities, Access.
(a) Tenant shall have the right and obligation, at its expense, to erect and maintain on the Premises, in
accordance with good engineering practices and with all applicable FCC rules and regulations,
improvements, personal property and facilities necessary to operate its communications system, including,
without limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment
shelters and/or cabinets and related cables and utility lines and a location based system, including, without
limitation, antenna(s), coaxial cable, base units and other associated equipment (collectively, the "Antenna
Facilities"), as such location based system may be required by any county, state or federal
agency/department. Tenant's installation of the Antenna Facilities shall be done according to plans
developed by an engineering firm that is knowledgeable in tower construction, sealed in accordance with
State of Texas requirements, and approved in advance in writing by the Landlord. Upon completion of
construction, Tenant shall provide the Landlord with as -built drawings of the Antenna Facilities and the
improvements installed on the Premises, which show the actual location of all equipment, transmission lines
and improvements consistent with the plans approved by the Landlord. The drawings shall be accompanied
by a complete and detailed inventory of all equipment, personal property, Antenna Facilities and any other
items of Tenant's on the Property. Tenant may with the prior written consent of the Landlord alter, replace,
expand, enhance and upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall
cause all construction to occur lien -free and in compliance with all applicable laws and ordinances. Landlord
acknowledges that it shall not unreasonably interfere with any aspects of construction, except as required to
ensure compliance with all applicable laws, codes, and Lease terms. All Antenna Facilities erected by the
Tenant shall remain the exclusive property of Tenant until the expiration or termination of this Lease.
Subject to the provisions of Section 16, below, upon expiration or termination of the Lease and unless
Site Number: A3BO261A Version 10-2-01
Site Name: Baytown Plnehurst 3
Market: Houston
otherwise directed by the Landlord, ownership of the Tenant erected New Tower (as defined below) shall be
conveyed by bill of sale by Tenant to Landlord with all facilities free and clear of any or all liens occasioned
by the activities of the Tenant.
(b) Tenant, at its expense, may restrict a third parry's access to the Antenna Facilities in a manner which has
been approved in advance in writing by the Landlord. However, Tenant shall not have the right to prohibit or
otherwise restrict, the Landlord's access to the Antenna Facilities, as Landlord has the right to access and
inspect the Premises at all times during the Initial Term and any Renewal Terms; provided that Landlord
shall make no hard electrical connections to Tenant's equipment.
(c) Tenant, shall, at Tenant's expense, keep and maintain the Antenna Facilities now or hereafter located on the
Property in good repair and in a manner acceptable to the Landlord during the term of this Lease, normal wear and
tear and casualty excepted. Tenant shall keep the Premises free of debris and anything reasonably determined by
the Landlord to be of a dangerous, noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or interference. Tenant shall promptly notify Landlord of any and all damages resulting from, arising
out of, or caused to the Premises and City property surrounding the Premises, including, but not limited to,
structural damages, electrical damages, damages to fencing, irrigation systems or landscaping caused by Tenant's
operations, or by Tenant, its officers, agents, employees and invitees. Tenant shall be solely responsible for the
costs and the repair of all such damages and such repairs and/or replacements shall be completed within thirty (30)
days or such other time as agreed to by the parties and be acceptable to Landlord. The failure to successfully
complete repairs and/or replacements in a timely manner to the satisfaction of Landlord, and upon 30 days written
notice, is grounds for termination of the Lease by Landlord.
(d) At Tenant's expense, Tenant may, subject to the Landlord's prior written approval, install utilities, and
improve the present utilities on the Property (including, but not limited to, the installation of emergency
power generators). Landlord agrees to use reasonable efforts in assisting Tenant to acquire necessary utility
service. Tenant shall install separate meters for utilities used on the Property by Tenant. The installation,
maintenance and repair of such meters as well as the costs therefor shall be the responsibility of Tenant. The
Tenant shall be responsible for and pay when due all bills or invoices for utilities used on the Property during
the Initial Term and all Renewal Terms.
(e) As partial consideration for Rent paid under this Lease, Landlord hereby grants Tenant a non-exclusive
license to use the Property for ingress, egress, utilities and access (including access for the purposes described
in Section 1) to the Premises adequate to install and maintain utilities approved by the Landlord, which
include, but are not limited to, the installation of power and telephone service cable, and to service the
Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any Renewal Term;
provided however, the location of such utilities and access thereto is subject to the prior written approval of
the Landlord's City Manager. The license provided hereunder shall have the same term as this Lease.
(f) Tenant shall have 24-hours-a-day, 7-days-a-week access to the Premises at all times during the Initial Term
of this Lease and any Renewal Term, except during a mandatory evacuation of the area in which the Premises
is located or other force majeure events.
(g) If there is an existing tower on the Premises currently used by Landlord for radio transmissions ("Existing
Tower"), Tenant, upon written request of the Landlord, agrees to replace the Existing Tower with a new
tower ("New Tower"), at Tenant's sole cost and expense. Landlord shall have the option to keep the Existing
Tower; otherwise, Tenant shall dispose of the Existing Tower at Tenant's expense.
(h) Tenant, at its sole cost and expense, agrees to install Landlord's initial cabling and antennas ("Landlord's
Facilities") on the New Tower on the Premises. The acquisition of such cabling and antennae shall be at
Landlord's cost.
(i) After the initial installation of Landlord's cabling and antennas on the Tenant's New Tower as provided in
subsection (h) of this section, Landlord shall be responsible for the maintenance of Landlord's cabling and
antennas. After the initial installation of Landlord's Facilities, Landlord and its contractors and
subcontractors must notify Tenant before doing any installation, upgrades, modifications, repair, maintenance
or other work on the New Tower. After the initial installation of Landlord's Facilities, Landlord shall be
solely responsible for all costs and expenses relating to the operation, repair, maintenance and replacement of
Landlord's Facilities, including, without limitation, utility service charges. Landlord's contractors and
subcontractors who perform work on the New Tower must obtain and maintain the same types and amounts
of insurance coverage that Tenant's contractors are required to maintain, and Tenant shall be named as an
additional insured on all liability policies maintained by Landlord's contractors and subcontractors and be
Site Number: A3B0261A Version 10-2-01
Site Name: Baytown Pinehurst 4
Market: 'Houston
provided certificates of such insurance. Landlord will not be required to pay Tenant rent with respect to
Landlord's Facilities. Landlord warrants and represents to Tenant that only Landlord's approved contractors,
and not its employees or agents, will climb and perform any work on the New Tower on behalf of Landlord.
7. Termination. Except as otherwise provided herein, this Lease may be terminated, without any penalty or further
liability as follows:
(a) upon thirty (30) days' written notice pursuant to Section 11 by Landlord if Tenant fails to cure a default for
payment of amounts due under this Lease within that thirty (30) day period;
(b) upon thirty (30) days' written notice pursuant to Section 11 by Tenant, if Tenant notifies Landlord in writing
of unacceptable results of any title report, environmental or soil tests prior to Tenant's installation of the
Antenna Facilities on the Premises, or if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels
any license (including, without limitation, an FCC license), permit or any Governmental Approval necessary
to the installation and/or operation of the Antenna Facilities or Tenant's business; or
(c) upon ninety (90) days' written notice pursuant to Section 11 by Tenant if through no fault of the Tenant, the
Premises or the Antenna Facilities are, or become unacceptable under Tenant's design or engineering
specifications for its Antenna Facilities or the communications system to which the Antenna Facilities
belong.
8. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other
rights granted to it at law or in equity, each party shall have the right, but not the obligation, to terminate this Lease on
written notice pursuant to Section 11 hereof, to take effect immediately, if the other party (i) fails to perform any
covenant for a period of thirty (30) days after receipt of written notice thereof to cure, or (ii) commits a material breach
of this Lease and fails to diligently pursue such cure to its completion after sixty (60) days' written notice to the
defaulting party.
If Landlord is compelled or elects to pay any sum of money or do any acts that require the payment of money by reason
of the Tenant's failure or inability to perform any of the provisions of this Lease after passage of any notice and cure
period provided under any other provisions of this Lease, Tenant shall, within ten (10) days of the demand therefor,
reimburse Landlord for such reasonable, actual sums, and all such sums shall bear interest at the rate specified in
Section 2251.025 of the Texas Government Code, as amended, from the date of expenditure until the date of such
reimbursement. Other sums payable under this Lease that are not paid by Tenant when due shall bear interest at the
same rate from and after the payment due date until the date Landlord receives payment thereof.
9. Taxes. Tenant shall pay any personal property tax, real property tax or any other tax or fee which arises out of or in
connection with the Tenant's use and occupancy of the Premises and/or the presence or installation of the Antenna
Facilities of the Tenant or its sublessees until (i) the New Tower any related facilities are conveyed to and accepted by
the Landlord, and (ii) Tenant removes its Antenna Facilities from the Premises in accordance with the terms of this
Lease; provided, however,- that Tenant shall pay its pro rata share of any such taxes prior to `any conveyance to
Landlord. For all purposes of this Lease, any tax assessment or charge imposed upon the Antenna Facilities, whether
classified as real property or personal property, shall be considered personalty taxes. Tenant shall make all such
payments directly to the charging authority prior to any delinquency and before any fine, interest or penalty shall
become due or be imposed by operation of law for their nonpayment. Tenant may challenge any personal property or
real property tax assessments that may affect Tenant. If Landlord receives notice of any personal property or real
property tax assessment against the Tenant, which may affect Tenant and is attributable to Tenant's use and occupancy
of the Premises and/or the presence or installation of the Antenna Facilities, Landlord shall provide timely notice of the
assessment to Tenant sufficient to allow Tenant to contest to or challenge such assessment. Further, Landlord shall
provide to Tenant upon request any public information requested by the Tenant subject to the fees specified in Section
2-616 of the Code of Ordinances, Baytown, Texas. If the Tenant contests any tax, assessment or charge, the Tenant
may, unless otherwise required by law, withhold or defer only that portion of the payment, which is the subject of
Tenant's contest, or pay under protest. Prior to the date any contested taxes, assessment, or charge shall become due, the
Tenant shalt perfect its contest of any tax, assessment or charge and advise the Landlord in writing. that the Tenant has
contested the same and the ground.
10 Insurance Release, and Indemnification.
(a) Disclaimer of Liability: Landlord shall not at any time be liable for injury or damage occurring to any person
or property from any cause whatsoever arising out of Tenant's construction, maintenance, repair, use,
operation, condition or dismantling of the tower(s) or Tenant's Antenna Facilities.
Site Number: A3B026IA Version 10-2-01
Site Name: Baytown Pinehurst 5
Market: Houston
(b)
Indemnification:
TENANT SHALL, AT ITS SOLE COST AND EXPENSE, INDEMNIFY, HOLD
HARMLESS, AND DEFEND LANDLORD, ITS OFFICERS, BOARDS,
COMMISSIONS, EMPLOYEES, AGENTS, ATTORNEYS, CONTRACTORS
(HEREAFTER REFERRED TO AS "INDEMNITEES"), FROM AND AGAINST:
(I) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
ACT OR OMISSION OF TENANT, ITS PERSONNEL, EMPLOYEES,
AGENTS, CONTRACTORS, OR SUBCONTRACTORS (HEREINAFTER
REFERRED TO AS "INDEMNITORS" ), RESULTING IN PERSONAL
INJURY, BODILY INJURY, SICKNESS, DISEASE OR DEATH TO ANY
PERSON OR DAMAGE TO, LOSS OF OR DESTRUCTION OF TANGIBLE
OR INTANGIBLE PROPERTY, LIBEL, SLANDER, INVASION OF
PRIVACY AND UNAUTHORIZED USE OF ANY TRADEMARK, TRADE
NAME, COPYRIGHT, PATENT, SERVICE MARK OR ANY OTHER
RIGHT OF ANY PERSON, FIRM OR CORPORATION, WHICH MAY
ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THE
CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE, USE
OR CONDITION OF THE PROPERTY OR TENANT'S ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY
FEDERAL, STATE OR LOCAL STATUTE, ORDINANCE OR
REGULATION; PROVIDED, HOWEVER, THAT THE INDEMNITIES
PROVIDED BY TENANT HEREUNDER SHALL NOT EXTEND OR
APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES, PENALTIES,
LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES WHICH
ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE WORKING
ON LANDLORD'S FACILITIES ON THE NEW TOWER;
(II) ANY AND ALL LIABILITIES, OBLIGATIONS, DAMAGES, PENALTIES,
CLAIMS, - -LIENS, COSTS, CHARGES, LOSSES- AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND OTHER
CONSULTANTS), WHICH ARE IMPOSED UPON, INCURRED BY OR
ASSERTED AGAINST THE INDEMNITEES BY REASON OF ANY
CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR
SUPPLIES PROVIDED OR SUPPLIED TO TENANT, ITS
CONTRACTORS OR SUBCONTRACTORS, FOR THE INSTALLATION,
CONSTRUCTION, OPERATION, MAINTENANCE OR USE OF THE
PROPERTY OR TENANT'S ANTENNA FACILITIES, AND, UPON THE
WRITTEN REQUEST OF LANDLORD, TENANT SHALL CAUSE SUCH
CLAIM OR LIEN COVERING LANDLORD'S PROPERTY TO BE
DISCHARGED OR BONDED WITHIN THIRTY (30) DAYS FOLLOWING
SUCH REQUEST; AND/OR
(III) ANY AND ALL LIABILITY, OBLIGATION, DAMAGES, PENALTIES,
CLAIMS, LIENS, COSTS, CHARGES, LOSSES AND EXPENSE
(INCLUDING, WITHOUT LIMITATION, REASONABLE FEES AND
EXPENSES OF ATTORNEYS, EXPERT WITNESSES AND
Site Number: A3BO261A Version 10-2-01
Site Name: Baytown P1nehUrSt 6
Market: Houston
CONSULTANTS), WHICH MAY BE IMPOSED UPON, INCURRED BY OR
BE ASSERTED AGAINST THE INDEXMTEES BY REASON OF ANY
FINANCING OR SECURITIES OFFERING BY TENANT OR ITS
AFFILIATES FOR VIOLATIONS OF THE COMMON LAW OR ANY
LAWS, STATUTES, OR REGULATIONS OF THE STATE OF TEXAS OR
UNITED STATES, INCLUDING THOSE OF THE FEDERAL SECURITIES
AND EXCHANGE COMMISSION, WHETHER BY TENANT OR
OTHERWISE.
TENANT'S OBLIGATION TO INDEMNIFY INDEMNITEES UNDER THIS
LEASE SHALL EXTEND TO CLAIMS, LOSSES, AND OTHER MATTERS
COVERED HEREUNDER THAT ARE CAUSED IN PART OR CONTRIBUTED
TO BY THE NEGLIGENCE OF ONE OR MORE INDEMNITEES. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEMNIFY, PROTECT
AND DEFEND LANDLORD FROM THE CONSEQUENCES OF () THE
INDEM MTEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE WITH ANY
OTHER PERSON OR ENTITY AND (II) THE CONSEQUENCES OF THE
INDENMTORS' NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE
OR CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. THIS
INDEMNITY SHALL CONTINUE NOTWITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE. THE INDEMNITY PROVIDED FOR IN
THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM,
LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE
INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE
OF LANDLORD, ITS EMPLOYEES, AGENTS OR CONTRACTORS,
UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY.
(c) Assumption of Risk: Tenant undertakes and assumes for its officers, agents, contractors, subcontractors and
employees (collectively "Tenant" for the purpose of this section), all risk of dangerous conditions whether
patent or latent, obvious or undiscoverable, and regardless of whether the Landlord should have known of
such dangerous conditions, if any, on or about the Property. After the initial installation of Landlord's
Facilities on. the New Tower, and subject to the provisions of the last sentence of Section 6(1)1 in connection
with any work being performed by Landlord or its employees on the Premises, Landlord undertakes and
assumes for its officers and employees (collectively "Landlord" for the purpose of this section), all risk of
dangerous conditions whether patent or latent, obvious or undiscoverable, and regardless of whether the
Landlord should have known of such dangerous conditions, if any, on or about the Premises. Each party will
notify the other party if it becomes aware of any dangerous conditions on the Premises and/or New Tower,
but Landlord will have no duty to inspect the New Tower.
TENANT HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND THE INDEMNITEES AGAINST AND FROM ANY CLAIM
ASSERTED OR LIABILITY IMPOSED UPON THE 1NDENMTEES FOR
PERSONAL INJURY OR PROPERTY DAMAGE TO ANY PERSON ARISING
OUT OF TENANT'S INSTALLATION, OPERATION, MAINTENANCE,
`CONDITION OR USE OF THE PROPERTY OR TENANT'S ; ANTENNA
FACILITIES OR TENANT'S FAILURE TO COMPLY WITH ANY FEDERAL,
STATE OR LOCAL STATUTE, ORDINANCE OR REGULATION. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH TENANT AND
LANDLORD, THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH IS AN INDEMNITY BY TENANT TO INDEX, PROTECT
AND DEFEND INDEMNITEES FROM THE CONSEQUENCES OF THE
Site Number: A3B0261A Version 10-2-01
Site Name: Baytown Pinehurst 7
Market: Houston
INDEMNITEES' OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A
SOLE OR CONCURRING CAUSE OF THE ASSERTED OR CLAIMED
LIABILITY AND (I1) THE CONSEQUENCES OF THE INDEMNITORS'
NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE OR
CONCURRING CAUSE OF THE ASSERTED OR CLAIMED LIABILITY. THIS
INDEMNITY SHALL CONTINUE NOT WITHSTANDING TERMINATION OR
EXPIRATION OF THIS LEASE; PROVIDED, HOWEVER, THAT THE
INDEMNITIES PROVIDED BY TENANT HEREUNDER SHALL NOT
EXTEND OR APPLY TO CLAIMS, CAUSES OF ACTION, DAMAGES,
PENALTIES, LIENS, OBLIGATIONS, COSTS, LIABILITIES OR EXPENSES
WHICH ARE CAUSED BY OR RESULT FROM THE NEGLIGENCE OR
WILLFUL MISCONDUCT OF LANDLORD'S CONTRACTORS WHILE
WORKING ON LANDLORD'S FACILITIES ON THE NEW TOWER.
(d) Defense of Indemnitees: In the event any action or proceeding shall be brought against the Indemnitees by
reason of any matter for which the Indemnitees are indemnified in this Section IO or Section 13, Tenant shall,
upon notice from any of the Indemnitees, at Tenant's sole cost and expense, resist and defend the same with
legal counsel reasonably acceptable to the Landlord, and Landlord acknowledges that such legal counsel may
be selected by Tenant's insurer; provided, however, that Tenant shall not admit liability in any such matter on
behalf of the Indemnitees without the written consent of Landlord and provided further that Indemnitees shall
not admit liability for, nor enter into any compromise or settlement of, any claim for which they are
indemnified hereunder, without the prior written consent of TENANT.
(e) Notice, cooperation and Expenses: Landlord shall give Tenant prompt notice of the making of any claim or
the commencement of any action, suit or other proceeding covered by the provisions of this Section 10.
Nothing herein shall be deemed to prevent Landlord from cooperating with Tenant and participating in the
defense of any litigation by Landlord's own counsel. Tenant shall pay all expenses incurred by Landlord in
response to any such actions, suits or proceedings. These expenses shall include all out-of-pocket expenses
such as reasonable attorneys' fees and shall also include the reasonable value of any services rendered by the
Landlord's attorney, and the actual expenses of Landlord's agents, employees or expert witnesses, and
disbursements and liabilities assumed by Landlord in connection with such suits, actions or proceedings but
shall not include reasonable attorneys' fees for services that are unnecessarily duplicative of services
provided Landlord by Tenant. If Tenant requests Landlord to assist it in such defense then Tenant shall pay
all expenses incurred by Landlord in response thereto, including defending itself with regard to any such
actions, suits or proceedings. These expenses shall include all out-of-pocket expenses such as attorney fees
and shall also include the costs of any services rendered by the Landlord's agents, employees or expert
.witnesses, and disbursements and liabilities assumed by Landlord in connection, with such suits, actions or
proceedings.
(f) Insurance.
During the Initial Term and any Renewal Term, the Tenant at its own expense shall purchase, maintain and
keep in force and effect insurance against claims for injuries to or death of persons or damages to property
which may arise out of or result from the Tenant's operations and/or performance of the work under this
Lease, whether such operations and/or performance be by the Tenant, its agents, representatives, employees
or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts
any of them may be liable.
The Tenant's insurance coverage shall be primary insurance with respect to the Landlord and its volunteers
and agents. Any insurance or self-insurance maintained by Landlord, its officials, employees or volunteers
L shall be considered in excess of the Tenant's insurance and shall not contribute to it. Further, the Tenant
shall include all subcontractors as additional insureds under its policies or shall furnish separate certificates
and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Site Number: A3BO25IA Version 10-2-01
Site Name: Baytown Pinehurst 8
Market: Houston
(1) Workers' Compensation Policy
■ Statutory amounts required by Texas law.
■ Employer's Liability: $500,000
(2) Commercial General Liability Policy
■ General aggregate of $2,000,000
■ Owners' and Contractors' Protective Liability of $500,000
■Products and Completed Operations of $1,000,000
■ Personal and Advertising Injury of $1,000,000
■ Minimum of $500,000 per occurrence
■ Coverage shall be at least as broad as ISO CG 00 01 10 93.
■ No coverage exclusions shall be deleted from standard policy
without notification of individual exclusions being attached
for review and acceptance.
(3) Automobile Liability Policy
■ Combined single limits of $1,000,000
■ Coverage for "Any Auto."
(4) Builder's Risk
■ At the start of and during the period of any construction,
■ Limit: 100% of insurable value, replacement cost basis
■ Landlord will be named a loss -payee
■ Include an installation floater or equivalent property coverage covering cables,
materials, machinery and supplies of any nature whatsoever which are to be used in or
incidental to the installation of the Antenna Facilities.
(5) Hazardous Materials Insurance
■ in an amount satisfactory to the Landlord
Prior to or upon the execution of this Lease and before commencing any of the work, the Tenant shall file
with the Landlord valid Certificates of Insurance reasonably acceptable to the Landlord. Such Certificates
shall contain a provision that coverages afforded under the policies will not be canceled, suspended, voided,
or reduced until at least thirty (30) days' prior written notice has been given to the Landlord via certified
mail, return receipt requested. Prior to the end of each coverage period during the term of this Lease, new
Certificates of Insurance must be filed with the Landlord evidencing continuation of coverage.
The Tenant shall also file with the Landlord valid Certificates of Insurance covering all Subcontractors.
The following are general requirements, which are applicable to all policies:
a. All insurance coverage required herein, except for Workers' Compensation Insurance, shall be
written by a carrier with an A.M. Best Rating of B+ or higher in accordance with the current Best
Key Rating Guide.
b. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted.
C. Deductibles shall be listed on the Certificate of Insurance.
d. All policies other than those for Worker's Compensation shall be written on an occurrence and not
on a claims made basis;
e. All policies, except for employer's liability and worker's compensation policies, shall name the
Landlord, its officials, employees, and agents as "Additional Insureds". The coverage shall contain
no special limitation on the scope of protection"afforded'io the Landlord, its officials, employees or
volunteers.
f_ A waiver of subrogation in favor of the Landlord with respect to Workers' Compensation Insurance
must be included.
g. Review of Limits: Once during each calendar year during the term of this Lease, the Landlord may
review the insurance coverages to be carried by Tenant. If Landlord determines that higher limits
Site Number: A3130261 A Version 14-2-01
Site Name: Baytown Pinehurst 9
Market: Houston
of coverage are necessary to protect the interests of Landlord or the Additional Insureds, Tenant
shall be so notified and shall obtain the additional limits of insurance, at its sole cost and expense.
h. If reasonably necessary to effectuate the provisions of this Section 10(f), Tenant will provide
Landlord with endorsements evidencing the insurance coverage requirements hereof. In the event
of any claim or litigation that involves or relates to the insurance that Tenant is required to maintain
under this Lease, Landlord, at its sole cost and expense, may review Tenant's insurance policies at
Tenant's headquarters in Bellevue, Washington; provided, however, that Landlord shall not
disclose the terms or provision of any such policies to any third party unless required to do so by
law or court order.
IL Notices. All notices, requests, demands and other communications shall be in writing and are effective three (3) days
after deposit in the U.S. mail, certified and postage paid if properly addressed, or upon receipt if personally delivered or
sent by next -business -day delivery via a nationally recognized overnight courier to the addresses set forth below.
Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to
the other party.
If to Tenant, to:
T-Mobile Texas, L.P.
2 Greenway Plaza, Suite 1 100
Houston, TX 77046
Attn: Lease Administration Manager
If to Landlord to:
City of Baytown
Attn: City Manager
2401 Market Street
Baytown, TX 77520
12. Acceptance of the Property. By taking possession of the Property, Tenant accepts the Property in the condition existing
as of the Commencement Date. Except as otherwise expressly provided in Section 13 of this Lease, Landlord makes
no representation of warranty with respect to the condition of the Property and the Landlord shall not be liable for any
latent or patent defect in the Property.
13. Environmental Laws. Landlord represents that it has no knowledge of any substance, chemical or waste (collectively,
"Hazardous Substance") on the Property that is identified as hazardous, toxic or dangerous in any applicable federal,
state or local law or regulation. The Tenant represents and warrants that its use of the Property will not generate any
Hazardous Substance, and it will not store or dispose on the Property, nor transport to or over the Property any
Hazardous Substance in violation of any applicable law.
TENANT AGREES TO HOLD LANDLORD HARMLESS, INDEMNIFY, AND
DEFEND LANDLORD AGAINST ANY RELEASE OF ANY SUCH
HAZARDOUS SUBSTANCE CAUSED BY TENANT OR BY ANY PERSON OR
ENTITY ACTING FOR OR ON BEHALF OF TENANT AND ANY DAMAGE,
LOSS, OR EXPENSE OR LIABILITY RESULTING FROM SUCH RELEASE,
INCLUDING ALL REASONABLE ATTORNEYS' FEES, COSTS AND
PENALTIES INCURRED AS A RESULT THEREOF EXCEPT ANY RELEASE
CAUSED BY THE SOLE NEGLIGENCE OF LANDLORD, ITS EMPLOYEES,
CONTRACTORS OR AGENTS. "HAZARDOUS SUBSTANCE" SHALL BE
INTERPRETED BROADLY TO MEAN ANY SUBSTANCE OR MATERIAL
DEFINED OR DESIGNATED AS HAZARDOUS OR TOXIC WASTE,
HAZARDOUS- OR TOXIC MATERIAL, HAZARDOUS OR TOXIC OR
RADIOACTIVE SUBSTANCE, OR OTHER SIMILAR TERM BY ANY
FEDERAL, STATE OR LOCAL ENVIRONMENTAL LAW, REGULATION OR
RULE PRESENTLY IN EFFECT OR PROMULGATED IN THE FUTURE, AS
SUCH LAWS, REGULATIONS OR RULES MAY BE AMENDED FROM TIME
TO TIME; AND IT SHALL BE INTERPRETED TO INCLUDE, BUT NOT BE
LIMITED TO, ANY SUBSTANCE WHICH AFTER RELEASE INTO THE
ENVIRONMENT WILL OR MAY REASONABLY BE ANTICIPATED TO
Site Number: A3B0261A Version 10-2-01
Site Name: Baytown Pinehurst 10
Market: Houston
CAUSE SICKNESS, DEATH OR DISEASE. IT IS THE EXPRESSED
INTENTION OF THE PARTIES HERETO, BOTH TENANT AND LANDLORD,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN
INDEMNITY BY TENANT TO INDEMNIFY, PROTECT AND DEFEND
LANDLORD FROM THE CONSEQUENCES OF THE INDEMNITEES' OWN
NEGLIGENCE WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE
OF THE DAMAGE, LOSS, OR EXPENSE OR LIABILITY AND (II) THE
CONSEQUENCES OF THE INDEMNITORS' NEGLIGENCE WHERE THAT
NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE DAMAGE,
LOSS, OR EXPENSE OR LIABILITY. THIS INDEMNITY SHALL CONTINUE
NOTWITHSTANDING TERMINATION OF THIS LEASE UNTIL ALL SUCH
CLAIMS ARE BARRED BY APPLICABLE STATUTES OF LI IITATION.
14. Assignment. Tenant may not assign this Lease and/or the license granted herein without the prior written approval of
the Landlord; provided, however, that Tenant may assign the Lease without Landlord's consent to any parent, affiliate
or subsidiary of Tenant, any party that merges or consolidates with Tenant or its parent, or any party that purchases all
or substantially all of Tenant's ownership interest or assets. Upon an assignment approved in writing by the Landlord,
or in the case of an assignment permitted without Landlord's approval, Tenant shall be relieved of all liabilities and
obligations hereunder except for those liabilities arising prior to the Landlord's consent to the assignment or the
effective date of the permitted assignment, as applicable. Assignment without the prior written consent of the Landlord
(if required under this paragraph) shall be a material breach for which the Lease may be terminated.
Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in this Lease and the Antenna
Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests,
including their successors or assigns (collectively "Mortgagees"), provided such Mortgagees agree to be bound by the
terms and provisions of this Lease. In such event, Landlord shall execute a consent to leasehold financing as may
reasonably be required by Mortgagees containing term and conditions satisfactory to the Landlord.
15. Successors and Assigns. This Lease and the license shall run with the land and shall be binding upon and inure to the
benefit of the parties, their respective successors, personal representatives and assigns.
16. Transfer of Ownership. Tenant agrees to convey, free and clear of all liens, the New Tower structure and related
facilities to Landlord upon Lease expiration or termination. At such time, Landlord will have the right to negotiate new
leases, licenses or other agreements directly with any Carriers who may still desire to occupy the Premises and New
Tower. The Landlord may, at Landlord's option, require Tenant to remove the Antenna Facility including the New
Tower if in the Landlord's discretion the Landlord does not desire the transfer of New Tower ownership to the
Landlord upon expiration or termination of the Lease. If removed at the request of the Landlord at the expiration or
termination of the Lease, Tenant shall be obligated to restore and repair the Property to the condition it was in prior to
the erection of the New Tower, except for normal wear and tear as determined by the Landlord's City Manager. _ .. .
17. Miscellaneous.
(a) Each party agrees to furnish to the other, within twenty (20) days after request, such truthful estoppel
information as the other may reasonably request.
(b) Thic Lease constitutes the entire agreement and understanding of the parties regarding the subject matter
hereof, and supersedes all offers, negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to this Lease must be in writing and
executed by both parties.
(c) Each party agrees to cooperate with the other in executing any documents (including a Memorandum of
Lease in substantially the form attached hereto as Exhibit C) necessary to protect its rights or use of the
Premises. The Memorandum of Lease may :be recorded'in place of this Lease by either party. Tenant may
obtain title insurance on its interest in the Premises.
(d) Tenant, at its expense, comply with all present and future federal, state, and local laws, ordinances, rules and
regulations including without limitation, laws and ordinances relating to health, marking and lighting
requirements, radio frequency emissions, or other radiation and safety requirements in connection with the
use, operation, maintenance, construction and/or installation of the Antenna Facilities and/or the Premises
and Property.
Site Number: A3B0261A Version10-2-01
Site Name: Baytown Pinehurst 11
Market: Houston
(e) Neither the Tenant nor the Landlord shall be deemed in violation of this Lease if it is prevented from
performing any of the obligations hereunder by reasons of strikes, boycotts, labor disputes, embargoes,
shortage of material, acts of God, acts of public enemy, acts of superior governmental authority, weather
conditions, floods, riots, rebellion, sabotage, or any other circumstances for which it is not responsible or
which is not in its control, and the time for performance shall be automatically extended by the period the
party is prevented from performing its obligations hereunder.
(f) This Lease shall be construed in accordance with the laws of the state in which the Property is located.
Venue shall for all purposes be in Harris County, Texas.
(g) If any term of this Lease is found to be void or invalid, such finding shall not affect the remaining terms of
this Lease, which shall continue in full force and effect. Any questions of particular interpretation shall not
be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. No provision of
this Lease will be deemed waived by either party unless expressly waived in writing signed by the waiving
party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either
party of any provision of this Lease shall be deemed a waiver of such provision with respect to any
subsequent matter relating to such provision.
(h) The persons who have executed this Lease represent and warrant that they are duly authorized to execute this
Lease in their individual or representative capacity as indicated.
(i) This Lease may be executed in any number of counterpart copies, each of which shall be deemed an original,
but all of which together shall constitute a single instrument.
(j) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes. The parties
understand and acknowledge that Exhibit A and Exhibit B (the Premises location within the Property), may
be attached to this Lease and the Memorandum of Lease, in preliminary form. Accordingly, the parties agree
that upon the preparation of final, more complete exhibits, Exhibits A and/or B, as the case may be, which
may have been attached hereto in preliminary form, shall be replaced with a final, more complete exhibit(s) if
approved by the Landlord. Tenant shall be responsible for all cost associated with the preparation of all
Exhibits herein described.
(k) If Tenant is represented by any broker or any other leasing agent, Tenant is responsible for all commission
fee or other payment to such agent, and agrees to indemnify and hold Landlord harmless from all claims by
such broker or anyone claiming through such broker.
(1) Whenever Landlord's consent or approval is required under any provision of this Lease, such consent or
approval will not be unreasonably withheld, conditioned or delayed.
The effective date of this Lease is the date of execution by the Landlord (the "Effective Date").
LANDLORD: City of Bayt6'wn`
By:
Printed Name:
Its:
Date:
TENANT: T-Mobile Texas, L.P., A Delaware limited partnership
By: T-Mobile We o>peration, 7itsGene artner
By:i
Printed Name: Jon Zumste
Its: Area Director of Engineefing and Operations
Date:
Approved as to form
Site Number: A3B0261 A Version 10-2-01
Site Name: Baytown Pinehurst 12
Market: Houston
EXHIBIT A
Legal Description
The Property is legally described as follows:
RESERVE "A", containing approximately 4.810 acres or 209,524 square feet of
land, out of PINEHURST SUBDIVISION, SECTION 1, a subdivision in Chambers
County, Texas, according to the map or plat thereof recorded in Volume "B",
Page 60 of the Map Records of Chambers County, Texas, in the WILLIAM
BLOODGOOD SURVEY, Abstract No. 5, Chambers County, Texas, SAVE AND
EXCEPT 0.598 of an acre, more or less, described in Deed dated March 3, 1989,
recorded in Volume 73, Page 517 of the Official Public Records of Chambers
County, Texas.
Site Number: A3B0261 A Version 10-2-01
Site Name: Baytown Pinehurst
Market: Houston
EXHIBIT B
The location of the Premises within the Property (together with access and utilities)
is more particularly described and depicted as follows:
Final site specific details will be included in the Landlord's written approval referenced in Section l(c).
Pinehurst & Hwy 146
T-Mobile Proposed Lease
Premises
x
o R0 yy
CD
r.
CD
to
N
O B' Utility Easement alon
a. `j "' "j " northern property
I I boundry
I I
� I I 7-Mobile 50' x 50'
I I Leased Premises
CD t I
m r 1
i 1
N
i I
3 t I 20' Wide Access and
CD I 1 Utility Easement
�► 1 I
N
epprox 4W
Pinehurst
Site Number: A3B0261 A Version 10-2-01
Site Name: Baytown Pinehurst
Market: Houston
EXHYBiT C
Memorandum
of
Lease
Site Number. A3B0261A Version 10-2-01
Site Name: Baytown Pinehtll'St
Market: Houston
Memorandum of Lease
Between City of Baytown ("Landlord")
and T-Mobile Texas, L.P. ("Tenant")
A Site Lease with Option (the "Lease") by and between City of Baytown ("Landlord") and T-Mobile Texas,
L.P., a Delaware Limited Partnership, ("Tenant") was made regarding a portion of the following property:
See Attached Exhibit "A" incorporated herein for all purposes.
The Option is for a term of twelve (12) months after the Effective Date of the Lease (as defined under the
Lease), with up to one additional twelve (12) month renewal ("Option Period").
The Lease is for a term of five (5) years and will commence on the date as set forth in the Lease (the
"Commencement Date"). Tenant shall have the right to extend this Lease for five (5) additional five-year terms.
IN WITNESS WHEREOF, the parties hereto have respectively executed this memorandum effective as of
the date of the last party to sign.
LANDLORD: City of Baytown
By:
Printed Name:
Its:
Date:
TENANT: T-Mobile Texas, L.P., A Delaware limited partnership
By:
T-Mobile West Corporation, its General Partner
By:
Printed Name:
Jon Zumsteg f"
Its:
Area Direcrdi of En ineeAng and Operations
Date:
AD9
Site Number: A3B0261 A Version 10-2-01
Site Name: Baytown Pinehurst
Market: Houston
]Notary block for Landlord]
%Notary block jor Corporation, Partnership, Limited Liability Company]
STATE OF )
) ss.
COUNTY OF )
This instrument was acknowledged before me on
[title] of
on behalf of said [name of entity].
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
Notary block for Tenant]
STATE OF TEXAS )
) ss.
COUNTY OF TRAVIS )
by ,
a [type of entity],
I certify that I know or have satisfactory evidence that Jon Zumsteg is the person who appeared
before me, and said person acknowledged that he signed this instrument, on oath stated that he was
authorized to execute the instrument and acknowledged it as the Area Director of Engineering and
Operations of T-Mobile Texas, L.P., a Delaware Limited Partnership, to be the free and voluntary act of such
party for the uses and purposes mentioned in the instrument.
Dated:
Notary Public
Print Name
My commission expires
(Use this space for notary stamp/seal)
Site Number: A3B0261 A Version 10-2-01
Site Name: Baytown Pinehurst
Market: Houston
Memorandum of Lease
EXHIBIT A
Legal Description
The Property is legally described as follows:
RESERVE "A", containing approximately 4.810 acres or 209;524 square feet of
land, out of PINEHURST SUBDIVISION, SECTION I, a subdivision in Chambers
County, Texas, according to the map or plat thereof recorded in Volume "B",
Page 60 of the Map Records of Chambers County, Texas, in the WILLIAM
BLOODGOOD SURVEY, Abstract No. 5, Chambers County, Texas, SAVE AND
EXCEPT 0.598 of an acre, more or less, described in Deed dated March 3, 1989,
recorded in Volume 73, Page 517 of the Official Public Records of Chambers
County, Texas.
Site Number: A3B0261 A Version 10-2-01
Site Name: Baytown Pinehurst
Market: Houston