RES 2005-25TOWN OF TROPHY CLUB, TEXAS
RESOLUTION NO. 2005-25
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
TROPHY CLUB, TEXAS, AUTHORIZING AND APPROVING
THE TERMS AND CONDITIONS OF A COMMUNICATIONS
SITE LEASE AGREEMENT BY AND BETWEEN THE TOWN OF
TROPHY CLUB AND NEXTEL OF TEXAS, INC., A TEXAS
CORPORATION, D/B/A NEXTEL COMMUNICATIONS
PROVIDING TERMS AND CONDITIONS FOR THE USE OF THE
PREMISES IDENTIFIED AS 901 TROPHY LAKE DRIVE FOR
THE PURPOSE OF IMPROVING COMMUNICATIONS
CAPABILITIES WITHIN THE TOWN; AUTHORIZIING ITS
EXECUTON BY THE MAYOR; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the Town Council of the Town of Trophy Club is a Home Rule
municipality created under the Constitution of the State of Texas; and
WHEREAS, the Town of Trophy Club is a sovereign governmental entity with
ownership and control of a certain parcel of land more commonly identified as 901
Trophy Lake Drive (hereinafter "Premises"); and
WHEREAS, as a property owner and sovereignty, the Town of Trophy Club has
the right, duty, and obligation to act as a good steward of public property and to perform
governmental functions which promote the health, safety and welfare of the public and
protect the interests of all residents within the Town; and
WHEREAS, the Town Council of the Town of Trophy Club recognizes that the
health, safety, and welfare of all Town residents, including the residents in the Village
West, Section "A" subdivision, are served by efficient and effective operation of
communications systems; and
WHEREAS, the Town Council recognizes that this goal would be furthered by
the Town's participation in a Communications Site Lease Agreement by and between the
Town of Trophy Club and Nextel of Texas, Inc., a Texas corporation, d/b/a Nextel
Communications (hereinafter "Agreement") for the location of a stealth antenna facility
on the Premises; and
WHEREAS, the Town finds it serves a governmental purpose and promotes the
best interests of all residents of Trophy Club to enter into the Agreement; and
WHEREAS, the Town Council has been presented a proposed Agreement
providing terms and conditions for use of the Premises, a substantial copy of which is
attached hereto as Exhibit "A" and incorporated herein; and
WHEREAS, upon full review and consideration of the Agreement, and all
matters attendant and related thereto, the Town Council is of the opinion that the terms
and conditions thereof should be approved, and that the Mayor should be authorized to
execute it on behalf of the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF TROPHY CLUB, TEXAS, THAT:
Section 1. All of the above premises are found to be true and correct and are
hereby affirmed and adopted as findings by the Town Council of the Town of Trophy
Club.
Section 2. The Town Council hereby approves the terms of the
Communications Site Lease Agreement by and between the Town of Trophy Club and
Nextel of Texas, Inc., a Texas corporation, d/b/a Nextel Communications, attached hereto
and incorporated herein as Exhibit "A".
Section 3. The Mayor is hereby authorized to execute the Agreement and all
other documents in connection therewith on behalf of the Town, substantially according
to the terms and conditions set forth in the Agreement.
Section 4. This Resolution shall become effective immediately upon its
passage.
DULY PASSED AND APPROVED this the 2gth day of August, 2005.
Nick Sanders, Mayor
Town of Trophy Club, Texas
ATTEST:
Town of Trophy Club, Texas
[SEAL]
APPROVED AS TO FORM:
Town Attorney
Town of Trophy Club, Texas
Site: TX-0666E
Market: North Texas
4?wi 34 , 2005, by This COMMUNICATIONS SITE LEASE AGREEMENT ("Agreement") is dated as of ,
Nextel of Texas, Inc., a Texas corporation, d/b/a Nextel Communications ("Nextel" or "Tenant") and the Town of Trophy
Club, Texas, a home rule municipality ("Owner" or "Landlord").
For One Dollar ($1.00) paid to Owner, and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Premises. Owner owns a parcel of land ("Land") located in the Town of Trophy Club, County of Denton, State of
Texas, commonly known as 901 Trophy Lake Drive, Trophy Club, Texas 76262 (APN: R167837). The Land is more
particularly described in Exhibit A annexed hereto and incorporated herein. Subject to the provisions of Paragraph 2
below ("Effective DateJDue Diligence Period"), Owner hereby leases to Nextel and Nextel leases from Owner
approximately 1.000 square feet of the Land and all access and utility easements necessary or desirable therefor
("Premises"), as may be described generally in Exhibit B annexed hereto and incorporated herein.
2. Effective DateIDue Diliqence Period. This Agreement shall be effective on the date of full execution hereof
("Effective Date"). Beginning on the Effective Date and continuing until the Term Commencement Date as defined in
Paragraph 3 below ("Due Diligence Period"), Nextel shall only be permitted to enter the Land for the limited purpose of
making appropriate engineering and boundary surveys, inspections, and other reasonably necessary investigations and
signal, topographical, geotechnical, structural and environmental tests (collectively, "Investigations and Tests") that
Nextel may deem necessary or desirable to determine the physical condition, feasibility and suitability of the Premises. In
the event that Nextel determines, during the Due Diligence Period, that the Premises are not appropriate for Nextel's
intended use, or if for any other reason, or no reason, Nextel decides not to commence its tenancy of the Premises, then
Nextel shall have the right to terminate this Agreement without penalty upon written notice to Owner at any time during the
Due Diligence Period and prior to the Term Commencement Date. Owner and Nextel expressly acknowledge and agree
that Nextel's access to the Land during this Due Diligence Period shall be solely for the limited purpose of performing the
Investigations and Tests, and that Nextel shall not be considered an owner or operator of any portion of the Land, and
shall have no ownership or control of any portion of the Land (except as expressly provided in this Paragraph 2), prior to
the Term Commencement Date. Notwithstanding the foregoing, during the Due Diligence period, Nextel shall not create
any hazards upon the Premises and if the surface of the Premises is disturbed or disrupted by Nextel's actions, Nextel
shall secure the premises, warn of any hazards, and within a reasonable time period, repair the Premises to a condition
as good or better than the condition of the Premise prior to Nextel's actions.
3. - Term. The term of Nextel's tenancy hereunder shall commence upon commercial operation of the Tenant
Facilities (as defined in Paragraph 6 below) or six (6) months following the Effective Date, whichever first occurs ('Term
Commencement Date") and shall terminate on the fifth anniversary of the Term Commencement Date ("Term") unless
otherwise terminated as provided herein. Tenant shall have the right to extend the Term for five (5) successive five (5)
year periods ("Renewal Terms") on the same terms and conditions as set forth herein. This Agreement shall
automatically be extended for each successive Renewal Term unless Tenant notifies Landlord of its intention not to renew
prior to commencement of the succeeding Renewal Term.
4. Rent. Within fifteen (1 5) business days following the Term Commencement Date and on the first day of each
month thereafter, Tenant shall pay to Landlord as rent Two Thousand Five Hundred and 00J100 Dollars per month
("Rent"). Rent shall be increased at the commencement of each Renewal Term by an amount equal to fifteen percent
(15%) of the Rent in effect for the previous Term or Renewal Term. Rent for any fractional month at the beginning or at
the end of the Term or Renewal Term shall be prorated. Rent shall be payable to Landlord at Town of Trophy Club, 100
Municipal Drive, Trophy Club, Texas 76262; Attention: Town Manager. All of Tenant's monetary obligations set forth in
this Agreement are conditioned upon Tenant's receipt of an accurate and executed W-9 Form from Landlord.
5. - Use. From and after the Term Commencement Date, Tenant may use the Premises for any lawful activity in
connection with the provision of communications services in accordance with Tenant's FCC (as defined in Paragraph 7
below) license and applicable local, state, and federal laws and regulations. Tenant shall have the ongoing right to
Revised 10/15/2004
perform such Investigations and Tests as Tenant may deem necessary or desirable. Landlord agrees to cooperate with
Tenant, at no out of pocket expense to Landlord, in making application for and obtaining all licenses, permits and any and
all other necessary approvals that may be required for Tenant's intended use of the Premises.
Prior to commencement of construction of the Tenant Facilities and prior to any substantial alteration or
modification to the Tenant Facilities (excluding routine maintenance, repairs, the like-kind replacement of the Tenant
Facilities, or any modifications to the interior of the equipment shelter or items housed therein), Tenant shall submit copies
of the site plan and specifications to Landlord for prior approval, which approval will not be unreasonably withheld,
conditioned, or delayed. Landlord shall give such approval or provide Nextel with its requests for changes within ten (1 0)
business days of Landlord's receipt of Nextel's plans. If Landlord does not provide such approval or request for changes
within such ten (10) business day period, Landlord shall be deemed to have approved the plans. Landlord shall not be
entitled to receive any additional consideration in exchange for reviewing or giving its approval for such alterations or
modifications.
6. Facilities; Utilities; Access.
(a) Except as limited by Paragraph 6(e) below, Tenant has the right to construct, erect, maintain,
test, replace, remove, operate and upgrade on the Premises communications facilities, including without limitation an
antenna tower or pole and foundation, utility lines, transmission lines, an air conditioned equipment shelter(s), electronic
equipment, transmitting and receiving antennas, microwave dishes, antennas and equipment, a power generator and
generator pad, and supporting equipment and structures therefor ("Tenant Facilities"). In connection therewith, Tenant
has the right to do all work necessary to prepare, maintain and alter the Premises for Tenant's business operations and to
install transmission lines connecting the antennas to the transmitters and receivers. All of Tenant's construction and
installation work shall be performed at Tenant's sole cost and expense and in a good and workmanlike manner. Tenant
shall hold title to the Tenant Facilities and all of the Tenant Facilities shall remain Tenant's personal property and are not
fixtures. Tenant has the right to remove the Tenant Facilities at its sole expense on or before the expiration or earlier
termination of this Agreement, and Tenant shall repair any damage to the Premises caused by such removal. Upon the
expiration or earlier termination of this Agreement, Tenant shall remove the Tenant Facilities from the Land, but is not
required to remove any foundation more than one (1) foot below grade level. Tenant shall repair any damage to the
Premises and restore the Premises to a condition as good or better than the condition of the Premise prior to Nextel's use
of the Premises. Any such removal and restoration under this Agreement shall be conducted within sixty (60) days of the
date of expiration or earlier termination of this Agreement."
(b) Tenant shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility
company. Tenant shall have the right to draw electricity and other utilities from the existing utilities on the Land or obtain
separate utility service from any utility company that will provide service to the Land. In connection therewith, Landlord
hereby grants to the local telephone, power and utility companies (as appropriate) non-exclusive rights to locate,
construct, install, operate, maintain, repair, replace, alter, extend, and/or remove cables and lines on, over, under and
across a portion of Landlord's Property as necessary or desirable therefor. Landlord agrees to sign such documents or
easements, at no cost to Tenant or the utility companies, as may be required by said utility companies to provide such
service to the Premises. Any easements necessary for such power or other utilities will be at locations reasonably
acceptable to Landlord and the servicing utility company.
(c) Tenant, Tenant's employees, agents and contractors shall have access to the Premises without notice to
Landlord twenty-four (24) hours a day, seven (7) days a week, at no charge. Landlord grants to Tenant, and Tenant's
agents, employees and contractors, a non-exclusive right and easement for pedestrian and vehicular ingress and egress
across the Land, and such right and easement may be described generally in Exhibit B.
(d) Landlord shall maintain all access roadways from the nearest public roadway to the Premises in a
manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. Landlord shall be
responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Tenant's
use of such roadways. Notwithstanding the foregoing, Tenant may construct an access road to the Premises ("Access
Road"), across the Land as more fully described in Exhibit 6, if Tenant reasonably determines such Access Road is
necessary for Tenant's ingress to and egress from the Premises. Any such access road shall be constructed in accordance
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with Landlord's standards and approval for such access road shall be in accordance with the procedure set forth in
Paragraph 5 above as applicable to the construction of Tenant Facilities.
Tenant shall be responsible for maintaining and repairing such Access Road until the expiration or earlier termination of this
Agreement, at its sole expense, less reasonable wear and tear or loss by casualty or other causes beyond Tenant's
reasonable control. Landlord shall be responsible for any damages to the Access Road caused by use of the Access Road
by Landlord, or Landlord's agents, employees, licensees, invitees or contractors, and shall be responsible for maintaining
and repairing the Access Road from and after the expiration or earlier termination of this Agreement, which costs shall be
Landlord's sole responsibility.
(e) Only one tower may be built on the Premises, such tower being designed as a flag pole, with antennas housed
inside the pole, and not visible from the outside of the pole. Maintenance of any and all flags attached to the flag pole shall
be the responsibility of the Landlord.
(f) Prior to Termination of this Agreement Landlord shall have the option to request that Tenant leave the tower on
site rather than remove the Tower. Should Landlord decide to exercise its option granted hereunder, Landlord shall notify
Tenant of its election to exercise the option at least thirty days prior to the termination of this Agreement. Should Landlord
exercise its option Tenant shall have the option, at its sole discretion, to either (1) convey the existing Tower and/or
shelter to Landlord or (2) remove the existing Tower and construct/install a new flagpole of similar or like quality. In either
event Tenant shall convey the equipment to Landlord by Bill of Sale in the form of Exhibit "D annexed hereto. Landlord
shall accept the equipment on an "as-is where-is" basis and disclaim any and all implied warranties including, but not
limited to, the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. In addition
Landlord shall indemnify, as allowed by law, and hold Tenant harmless from any losses, liabilities, damages, costs, and
expenses (including reasonable attorneys' and consultants' fees, costs and expenses) arising from the construction,
maintenance, or repair of the antennas, coaxial cabling and shelter. In the event Landlord does not exercise its option
under this section, Tenant agrees to remove the Tower and equipment shelter in accordance with Paragraph 6(a).
7. Interference.
(a) Tenant shall operate the Tenant Facilities in compliance with all Federal Communications Commission
("FCC") requirements including those prohibiting interference to communications facilities of Landlord or other lessees or
licensees of the Land, provided that the installation and operation of any such facilities predate the installation of the
Tenant Facilities. Tenant shall operate the Tenant Facilities in accordance with Federal Communications Commission
requirements and standards in such a manner that Tenant's use of the Premises will not cause interference to third
persons with property contiguous to the Premises and/or to persons with property within a reasonable distance from the
Premises where such interference is prohibited by FCC standards. Tenant agrees to use best efforts to eliminate such
interference in a reasonable time period.
(b) Subsequent to the installation of the Tenant Facilities, Landlord will not, and will not permit its lessees or
licensees to, install new equipment on or make any alterations to the Land or property contiguous thereto owned or
controlled by Landlord, if such modifications are likely to cause interference with Tenant's operations. In the event
interference occurs, Landlord agrees to use best efforts to eliminate such interference in a reasonable time period.
Landlord's failure to comply with this paragraph shall be a material breach of this Agreement.
8. Taxes. If personal property taxes are assessed, Tenant shall pay any portion of such taxes directly attributable to
the Tenant Facilities. Landlord shall pay when due all real property taxes, assessments and deferred taxes on the Land.
9. Waiver of Landlord's Lien.
(a) Landlord waives any lien rights it may have concerning the Tenant Facilities, all of which are deemed
Tenant's personal property and not fixtures, and Tenant has the right to remove the same at any time without Landlord's
consent.
(b) Landlord acknowledges that Tenant has entered into a financing arrangement including promissory notes
and financial and security agreements for the financing of the Tenant Facilities ("Collateral") with a third party financing
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entity (and may in the future enter into additional financing arrangements with other financing entities). In connection
therewith, Landlord (i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures
or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or
distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal
proceedings.
10. Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as
follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured
within sixty (60) days of receipt of written notice of default, except that this Agreement shall not be terminated if the default
cannot reasonably be cured within such sixty (60) day period and the defaulting party has commenced to cure the default
within such sixty (60) day period and diligently pursues the cure to completion; provided that the grace period for any
monetary default is ten (10) days from receipt of written notice; or (ii) by Tenant if it does not obtain or maintain any
license, permit or other approval necessary for the construction and operation of the Tenant Facilities; or (iii) by Tenant if
Tenant is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back
of channels or change in frequencies; or (iv) by Tenant if any environmental report for the Land reveals the presence of
any Hazardous Material after the Term Commencement Date; or (v) by Tenant if Tenant determines that the Premises are
not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference;
or (vi) by Tenant if the Landlord fails to deliver to Tenant an executed memorandum of agreement or non-disturbance and
attornment agreement pursuant to Paragraphs 19(g) and (h) below. Upon termination of this Agreement, Tenant shall
remove all Tenant Facilities and restore and repair the Premises as provided in Paragraph 6 of this Agreement.
11. Destruction or Condemnation. If the Premises or Tenant Facilities are damaged, destroyed, condemned or
transferred in lieu of condemnation, Tenant may elect to terminate this Agreement as of the date of the damage,
destruction, condemnation or transfer in lieu of condemnation by giving notice to Landlord no more than forty-five (45)
days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. If Tenant
chooses not to terminate this Agreement, Rent shall be reduced or abated in proportion to the actual reduction or
abatement of use of the Premises.
If Tenant elects to terminate this Agreement pursuant to this Paragraph 11, Tenant shall remove all Tenant Facilities and
restore and repair the Premises as specified in Paragraph 6 of this Agreement. If the Tenant Facilities are damaged,
destroyed, or are being maintained in unsightly condition, Landlord shall notify Tenant in writing of the deficiencies and
Tenant shall have thirty (30) days from the date of such notice to repair, replace or remove the Tenant Facilities; provided
however, that if such Tenant Facilities are determined by Landlord to be unsafe or to pose a hazard to public health,
safety, or welfare, Tenant shall take immediate action to secure the Facilities to eliminate the hazard to public health,
safety, or welfare. Immediate action shall mean within five (5) business days of notice by Landlord.
12. Insurance.
(a) Tenant, at Tenant's sole cost and expense, shall procure and maintain on the Premises and on the
Tenant Facilities commercial general liability ("CGL") insurance covering bodily injury and property damage with a
combined single limit of at least One Million and 001100 Dollars ($1,000,000.00) per occurrence. Subject to the standard
exclusions and limitations of CGL policies, such insurance shall insure, on an occurrence basis, against all liability of
Tenant, its employees and agents arising out of or in connection with Tenant's use of the Premises, all as provided for
herein. Within thirty (30) days following the Effective Date, Tenant shall provide Landlord with a certificate of insurance
("COI") evidencing the coverage required by this Paragraph 12. Alternatively, Tenant shall have the option of providing
Landlord with evidence of such coverage electronically by providing to Landlord a Uniform Resource Locator ("LIRL") Link
to access Tenant's memorandum of insurance ("MOI") website in order for Landlord to review the coverage required by
this Paragraph 12.
(b) Landlord, at Landlord's sole cost and expense, shall procure and maintain on the Premises CGL
insurance covering bodily injury and property damage with a combined single limit of at least One Million and 001100
Dollars ($1,000,000.00) per occurrence. Subject to the standard exclusions and limitations of CGL policies, such
insurance shall insure, on an occurrence basis, against all liability of Landlord, its employees and agents arising out of or
in connection with Landlord's use, occupancy and maintenance of the Premises and Landlord's property located thereon.
Within thirty (30) days following the Effective Date, Landlord shall provide Tenant with a COI evidencing the coverage
required by this Paragraph 12. Alternatively, Landlord shall have the option of providing Tenant with evidence of such
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coverage electronically by providing to Tenant a URL Link to access Landlord's MOI website in order for Tenant to review
the coverage required by this Paragraph 12.
13. Waiver of Subroqation. Landlord and Tenant release each other and their respective principals, employees,
representatives and agents, from any claims for damage to any person or to the Land or the Premises or to the Tenant
Facilities or any other property thereon caused by, or that result from, risks insured against under any insurance policies
carried by the parties and in force at the time of any such damage. Neither Landlord nor Tenant shall be liable to the
other for any damage caused by any of the risks insured against under any insurance policy required by Paragraph 12.
14. Liability and Indemnity. To the extent allowed by law, Landlord and Tenant shall each indemnify, defend and
hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including
reasonable attorneys' and consultants' fees, costs and expenses) (collectively "Losses") arising from the indemnifying
party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying
party or its agents, employees or contractors in or about the Land. The duties described in this Paragraph 14 shall apply
as of the Effective Date of this Agreement and survive the termination of this Agreement.
15. Assignment and Subletting. Tenant may not assign, or otherwise transfer all or any part of its interest in this
Agreement or in the Premises without the prior written consent of Landlord; provided, however, that Tenant may assign its
interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity
acquiring fifty-one percent (51%) or more of its stock or assets, subject to any financing entity's interest, if any, in this
Agreement as set forth in Paragraph 9 above. Upon assignment, Tenant shall be relieved of all future performance,
liabilities, and obligations under this Agreement, provided that the assignee assumes all of Tenant's obligations herein.
Landlord may assign this Agreement, which assignment may be evidenced by written notice to Tenant within a
reasonable period of time thereafter, provided that the assignee assumes all of Landlord's obligations herein, including but
not limited to, those set forth in Paragraph 9 ("Waiver of Landlord's Lien") above. This Agreement shall run with the Land
and shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives,
heirs and assigns. Notwithstanding any-thing to the contrary contained in this Agreement, Tenant may assign, mortgage,
pledge, hypothecate or otherwise transfer without notice or consent its interest in this Agreement to any financing entity,
or agent on behalf of any financing entity to whom Tenant (i) has obligations for borrowed money or in respect of
guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has
obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties
thereof."
16. Warranty of Title and Quiet Enjoyment. Landlord warrants that: (i) Landlord owns the Land in fee simple, has
rights of access thereto from the nearest public roadway, which Tenant is legally permitted to use, and the Land and
access rights are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date;
and (ii) Landlord covenants and agrees with Tenant that Tenant may peacefully and quietly enjoy the Premises and such
access thereto, provided that Tenant is not in default hereunder after notice and expiration of all cure periods.
17. Repairs. Tenant shall repair any damage to the Premises or Land caused by the negligence or willful misconduct
of Tenant. Except as set forth in Paragraph 6(a) above, upon expiration or termination hereof, Tenant shall repair the
Premises to substantially the condition in which it existed upon start of construction, reasonable wear and tear and loss by
casualty or other causes beyond Tenant's reasonable control excepted.
18. Hazardous Material.
(a) As of the Effective Date of this Agreement: (1) Tenant hereby represents and warrants that it shall not
use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon or affecting the Land in violation of
any Environmental Law (as defined below), and (2) Landlord hereby represents and warrants that (i) it has no knowledge
of the presence of any Hazardous Material located in, on, under, upon or affecting the Land in violation of any
Environmental Law; (ii) no notice has been received by or on behalf of Landlord from,. and Landlord has no knowledge
that notice has been given to any predecessor owner or operator of the Land by, any governmental entity or any person or
entity claiming any violation of, or requiring compliance with any Environmental Law for any environmental damage (or the
presence of any Hazardous Material) in, on, under, upon or affecting the Land; and (iii) it will not permit itself or any third
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party to use, generate, handle, store or dispose of any Hazardous Material in, on, under, upon, or affecting the Land in
violation of any Environmental Law.
(b) Without limiting Paragraph 14, to the extent allowed by law, Landlord and Tenant shall each indemnify,
defend and hold the other harmless from and against all Losses (specifically including, without limitation, attorneys',
engineers', consultants' and experts' fees, costs and expenses) arising from (i) any breach of any representation or
warranty made in this Paragraph 18 by such party; and/or (ii) environmental conditions or noncompliance with any
Environmental Law (as defined below) that result, in the case of Tenant, from operations in or about the Land by Tenant
or Tenant's agents, employees or contractors, and in the case of Landlord, from the ownership or control of, or operations
in or about, the Land by Landlord or Landlord's predecessors in interest, and their respective agents, employees,
contractors, tenants, guests or other parties. The provisions of this Paragraph 18 shall apply as of the Effective Date of
this Agreement and survive termination of this Agreement.
(c) "Hazardous Material" means any solid, gaseous or liquid wastes (including hazardous wastes),
regulated substances, pollutants or contaminants or terms of similar import, as such terms are defined in any
Environmental Law, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable
explosives, radioactive materials, asbestos in any form, polychlorinated biphenyls and any other substance or material
which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined
by any governmental entity to be prohibited, limited or regulated by any Environmental Law.
(d) "Environmental Law" means any and all present or future federal, state or local laws, rules, regulations,
codes, ordinances, or by-laws, and any judicial or administrative interpretations thereof, including orders, decrees,
judgments, rulings, directives or notices of violation, that create duties, obligations or liabilities with respect to: (i) human
health; or (ii) environmental pollution, impairment or disruption, including, without limitation, laws governing the existence,
use, storage, treatment, discharge, release, containment, transportation, generation, manufacture, refinement, handling,
production, disposal, or management of any Hazardous Material, or otherwise regulating or providing for the protection of
the environment.
19. Miscellaneous.
(a) This Agreement constitutes the entire agreement and understanding between the parties, and
supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any
amendments to this Agreement must be in writing and executed by both parties.
(b) Both parties represent and warrant that their use of the Land and their real and personal property located
thereon is in compliance with all applicable, valid and enforceable statutes, laws, ordinances and regulations of any
competent government authority.
(c) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of
this Agreement or the application of such provision to persons other than those as to whom it is held invalid or
unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
(d) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of
the respective parties.
(e) Any notice or demand required to be given herein shall be made by certified or registered mail, return
receipt requested, or reliable overnight courier to the address of the respective parties set forth below:
Landlord: Tenant:
Town of Trophy Club, Texas
A home rule municipality
100 Municipal Drive
Trophy Club, Texas 76262
Attn: Town Manager
Nextel of Texas, Inc., a Texas corporation
4700 W. Sam Houston Parkway
Suite 200
Houston, TX 77041
Attn: Property Manager
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Phone: 682-831 -4600 Phone: 832-590-2232
With a copy to:
Nextel Communications, Inc.
2001 Edmund Halley Drive
Reston, VA 201 91 -3436
Second Floor, Mail Stop 2E225
Attn: Contracts Manager - Legal
Landlord or Tenant may from time to time designate any other address for this purpose by written notice to the other
party. All notices hereunder shall be deemed received upon actual receipt or refusal to accept delivery.
(f) This Agreement shall be governed by the laws of the State of Texas.
(g) Landlord agrees to execute and deliver to Tenant a Memorandum of Agreement in the form annexed
hereto as Exhibit C and acknowledges that such Memorandum of Agreement will be recorded by Tenant in the official
records of the County where the Land is located.
(h) In the event the and-is encumbered by a mortgage or deed of trust, Landlord agrees to obtain and
deliver to Tenant an executed and acknowledged non-disturbance and attornment instrument for each such mortgage or
deed of trust in a recordable form reasonably acceptable to both parties.
(i) Landlord agrees to fully cooperate with Tenant (including obtaining and/or executing necessary
documentation) to clear any outstanding title issues that could adversely affect Tenant's interest in the Premises created
by this Agreement.
(j In any case where the approval or consent of one party hereto is required, requested or otherwise to be
given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent.
(k) Each of the parties hereto represent and warrant that they have the right, power, legal capacity and
authority to enter into and perform their respective obligations under this Agreement.
(1) Both parties took part in the negotiation of this Agreement and agree that legal concepts
intended to construe the Agreement against the drafter will not apply against either party.
(m) In the event of any breach or default by either party, the other party shall be entitled to all rights and
remedies provided for in this Agreement and/or available at law, in equity, by statute or otherwise, all of which rights and
remedies shall be cumulative (and not exclusive).
(n) The captions and headings in this Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provision of this Agreement.
(0) All Recitals set forth above, and all Riders and Exhibits annexed hereto, form material parts of this
Agreement and are hereby incorporated herein by this reference.
(p) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original.
20. Supplier Diversity. Nextel is committed to equal employment and vendor diversity. As part of this commitment, it
is the policy of Nextel that small business concerns, veteran-owned small business concerns, HUBZone small business
concerns, women-owned small business concerns, small disadvantaged business concerns (including 8(a) business
concerns) and historically black colleges and universities and minority institutions ("Diverse Suppliers," as further defined
below) shall have the maximum practicable opportunity to participate in performance of contracting between Nextel and its
vendors. The term "Diverse Supplier(s)" shall mean and be defined as set forth in Federal Acquisition Regulation Part 19
and 13 C.F.R. Part 121. In addition, "Historically black colleges and universities," as included in the definition of "Diverse
7
N:\padams\Private\Trophy ClubWextelWextel Ground Lease Agreement August 2005 Final.doc
Suppliers" for purposes of this Agreement, shall mean and include institutions determined by the Secretary of Education
to meet the requirements of 34 C.F.R. ~ection'608.2; any nonprofit research institution that was an integral part of such a
college or university before November 14, 1986; and "Minority institutions," as included in the definition of "Diverse
Suppliers" for purposes of this Agreement, shall mean institutions meeting the requirements of Section 1046(3) of the
Higher Education Act of 1965 (20 U.S.C. 51 135d-5(3)); and also Hispanic-serving institutions as defined in Section
316(b)(l) of such Act (20 U.S.C. §1059c(b)(l)). Landlord shall confirm in the space below whether or not Landlord
reasonably believes it qualifies as a Diverse Supplier.
*'*SIGNATURES ON FOLLOWING PAGE"'
8
N:\padams\Pn'vate\Trophy ClubWextelWextel Ground Lease Agreement August 2005 Final.doc
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the last signature below.
LANDLORD: TENANT:
Town of Trophy Club, Texas, Nextel of Texas, Inc.,
a general law municipality
&US& By:
Name: 1 (r
V
Title: Title: Vice President of Site Development, South
Region
Date: v .3 L& fl5 Date:
Tax I.D.: 7.5 .lo# 7q 7s/
Diverse Supplier: Yes No
STATE OF TEXAS
COUNTY OF DENTON
1.4 29 ?' before me, / /,ir li/l m,On 6; , Notary Public, personally appeared
, personally known to me (or pfoved to me on the basis of satisfactory evidence) to
be the person whose name is subscribed to the within instrument and acknowledged to me that they executed the same
in their authorized capacity, and that by their signature on the instrument, the person, or the entity upon behalf of which
the person acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL)
Notary Public
My commission expires:
STATE OF fsc
On 9 1 \I )~n~~.efore me. ijT&r(Notary Pubic personally appeared Scott Smith, personally
known to me or proved to me on the basis of satisfacldy evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their
signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.
EXHIBIT A
DESCRIPTION OF LAND
to the Agreement dated d[,d 24 ,2005. by and between the Town of Trophy Club, Texas, a home rule
municipality, as Landlord, and Nextel bf Texas, Inc., a Texas corporation, d/b/a Nextel Communications, as Tenant.
The Land is described andlor depicted as follows (metes and bounds description):
APN: R167837
A WRITTEN DESCRIPTION OF THE LAND WILL BE PRESENTED HERE OR ATTACHED HERETO
Ld 1, Block I, Trophy Club Recreation Cenler, an Additian to the Toin of Tmphy Club, Denton
County, Tas, and king situated in [he J- Henry Sorvcy, Abstract No. 523, pursuant to Plat
rccordcd in Cabinet T, Page 47, Map Rcm& of Dmon County, Tesas, and being more fully
demied as fofIot~*~:
That certain 6,000 acre mct of land situated in &t 3. HENRY SURVEY, ABSTRACT NUMBER
529, and bcing a portion of lhat tract of land described in deed t~ Beck Pmpmics Trophy Club, LP
and record& in County CLcrC; Filc No. 93-RW87510, Real Propem Rccords, Dmton Cognty, Tcu,
said 6.000 acrc txac~ of land being morc partiruldy dcsrncbed by metes and bounds as fo1lotr.s:
BEGfiWING at a point in the east right-of-way line of ParLxicrv Drive (a 60' public Sghr-of-way),
said poins bears N01WI 1'E, a distancc of 3 90.1 1 fed from the northvest comer of Lot 21, Block I,
hkes of Trophy club, an addition to tbc Town of Trophy Club according to fie plat recodcd in
Cabjn~ P, Page 73, Plat R~[:D~s. Dcnton County, Tms;
TIENCE NOl*2Sl lUE, continuing dong the fast right-of-way lk of said Parh5cn, Drive, a
distance of 109.89 ice! la 3 point at the beginning of a mnpe to he right having a radius of 74428
feet and ihosc long chord bcars Nl lnZ I'40mE, s distance of 257.04 fcct;
THENCE dong $aid curvc to the righl, continuing along tht cast rjght-of-way line af =id Parkview
Drivc, through a ctntnl angle of 19"53'1Sn, an arc Icn& of 258.34 fcct to a point a1 the end of said
curve;
THENCE S88"33'I8"E, IuGng the cast right-of-way line of =id Parkyicw DCSYC, a distzncc of
56832 fee to a point at the beginning of a cumc to ihc lclt having a radius of645.00 ferl and whose
long chord bears h'B2*13'3 1 "E, a d&ncr or279-77 fccc
THENCE along said cunpe to the le& through a ccnml angle of lS"t6'22". an arc Icngth of 27 1-94
Tctt to a paint at the cad of said curvc;
TWE?KZ S29903'44"E, a distance of 36.96 fmt to a point at he bcginni~g of a non-tilngent cunrc to
the Icfi having a radius of 550.00 feet and whose lang ch~rd bears S32'57'37"W1 a distance of 156.07
fecc
mENCE ahng said curve to thc thfo=&h a ~cntfal andc of 1958'4UU, an in length of 185.97
feet to a pin! at the bcghing of a curve to at right having a ndiu of 500.00 fect and rvhosc lang
chord bears S615827"Wn a distance of 475.92 feet;
THENCE dong said CUNC to thc right, through a central angle of 56"50'20m, pn ierrgth of 496.01
fcci to 3 poiat d rhe end of &d curvc;
THENCE NgP56'23"1V, a distance of 35238 fcet to 3 point;
THENCE N44*15'36"SY, a distancc of 13-97 fmt to ~hc POlhT OF BEGINNING ad containing
2di,360 sqw fccr or 6.000 acrcs ofland
All hat certain real property owed by TROPHY CLUB COMMUNITY IMPROVEMENT
ASSOClA770N in the Tom ~FT~ophy Club, Dcnton Comty, Tern, Including but not Limited
to the following
1. Tncts "A," "B." and "CY of TROPHY CLUB, 0.4K HILL, a subdivision out of the: C,
Medlin Stwcy, Abstract No. 823; the J. R Rchrrel Survey, Abstract No. 821; and the Sf7.
Medlin Survey, Abstract No. 829, Deoton County, Texas, according to he PIat thmf
remwied in Volume 14, page 25, Pla! Records of Denton Cowsty, Texas (or any
subsqurntly recorded Plat or Replat thmm f).
1. Tm "A" and "8" of FAIRWAY VILLAGE, a subdivision in Tmphy Club out of thc J,
R Michad Survey, Abstracr No. 821, Dmton Cou~y, Taq according to he Plat
thereof recorded in Volume 16, pagc 28, Plat Records aiD&itm County, T- (er my
subsequentty reforded Plat or Replat thensf).
3, Tract "A" of LAIE FOREST VILUGE PHASE THREE, a subdivision in Traphy Club,
out of the W+ H. Pea S~ey, Abstract No. 1N5 and the C. Me Survey, Abstract No.
823, Denton County, Texas, accodng to the Plal th.ermf mmded in Plat Cabiact 8,
page 260, Flat Reconis of Dcnton County, Tcxs (or any subsqumt?y rccodcd Plat or
Repla themof).
4. Tracts "8," "C," "D" and "E' of LAKE FOREST VLLAGE PHASE FOUR, a
subdivision in Trophy Club, our of rht J. R. Mi&d Swq, Abstract NU. 821 and lhc C.
Mcdlin Survey, Ahshct No. 823, Denton County, =as, amding to the P1a.f &emf
recorded in Piat Cfi~ner B, piigc 21 1, Pfal Rmw& oh Dcntob Cmty, Texas (or any
subsequently mcordcd Plat or Replat LhcrcaC),
5. Open Spacc d~scnied in Ncle 6 of TROPHY CLUB, SECTION SE4EiN, a subdivision
out of the C- Mcdlin Survey, Abnract No. 823; thc 5. Suiton Sllrvq, iLbsbac1 No. 1 154;
and the 3. hds Suruey, Abstract No. 392, Ourton County, TEX~~S, arsbrding ra thc PIsl
thereof TCCQ& in Vofame 13, pase 4 1, Plat Rcco* aTDmtcm County, Texas (~r any
subsequently recorded PIat or Rcplat therm f).
6. Tracts "A," "B" and T' of TROPHY CLUB, SEmON EIGHT, a subdivision out of
the J. Sukton Survey, Abstract Na 1154 md the C. Mcdlin Survey, Abmcf No. 823,
Denion Comty, Texas, attarding to iho Plat lhcnof recorded in Volnmc 15, pagc 12,
Plat Records of Dcnion Counly, Texas (or any subseqrrcnlly recodd Plal or Repla!
ulfxtmfl-
7. T~~~~ M41~ "8; md ti "DW of VILLAGE
the J. Gds Survey, Abstract No. 392, the
Sutccln Swg: Abstraci No. 1154, Denton County, Texas, according to the S~bdivision
Plat ther~f nmrded in Cabinet C, Slide 171 of the Plat Records of Dcnton Count).,
Taas {or my mbsequmtly recorded P23t or Replnt thcreoq-
8. Tracts "A* and "B" of VILLAGE WEST, SEC?1QN "%", a subdirision out af the J. Eads
Survey, Abstract No- 392, and the R Eads Sutrrey, Abstract Na 393, Denton Counw,
Texas, according to the Subdivision Plat thereof rrorded in Csbinct C, Slide 172 of &c
Pla! Records of Dentaa County, Tcrxhs (or any subsequzntly recorded Plat or Rcplat
thmf).
EXHIBIT B
DESCRIPTION OF PREMISES
to the Agreement dated bL $q,, *ij ~+2005, by and between the Town of Trophy Club, Texas, a home rule
municipality as Landlord and Nextel o Texas, Inc., a Texas corporation, d/b/a Nextel Communications, as Tenant.
The Premises are described and/or depicted as follows:
A DRAWING OF THE PREMISES WILL BE PRESENTED HERE OR ATTACHED HERETO
Notes:
1. Tenant may replace this Exhibit with a survey of the Premises once Tenant receives it.
2. The Premises shall be setback from the Land's boundaries as required by the applicable governmental authorities.
3. The access road's width will be the width required by the applicable governmental authorities, including police and fire
departments.
4. Without in any way limiting Paragraph 6 (or Tenant's right to make future changes), Tenant intends to initially install
up to twelve (12) antennas, fifteen (15) coaxial cables and three GPS signal units and connections. The type,
number, mounting positions and locations of antennas and transmission lines are illustrative only. The actual types,
numbers, mounting positions and locations may vary from what is shown above.
5. The locations of any utility easements are illustrative only. The actual locations will be determined by the servicing
utility company in compliance with all local laws and regulations.
WROUGHT IRON
PROPOSED NEX
NEXTEL SHELTER
8' HlGH 25'x30' SCdEElV WALL
AREA (WALL TO MATCH
EXISTING SURROUNDING WALLS)
UNDERGROUND COAXIAL
PROPOSED 90'-0"
HlGH FLAGPOLE-
GRASSY AREA --, UTM
n