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HomeMy WebLinkAboutOrdinance No. 02-1353 ORI$1NAL CITY OF THE COLONY, TEXAS ORDINANCE NO. AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH METROPLEX TELEPHONE COMPANY, D/B/A AT&T WIRELESS ALLOWING AT&T WIRELESS TO LEASE A PORTION OF THE CITY'S PROPERTY; ATTACHING THE APPROVED FORM OF CONTRACT AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the City Manager of the City of The Colony, Texas is hereby authorized to execute on behalf of the City a contract with AT&T Wireless allowing AT&T Wireless to lease a portion of the City's property. The approved form of contract is attached hereto as Exhibit "A", and made a part hereof for such purposes. SECTION 2. This Ordinance shall take effect immediately from and after its passage by the City Council of the City of The Colony, Texas. DULYr-P/~SSED .&ND APPROVED by the City Council of the City of The Colony, Texas this ~D"~day of --~~~,~, 2002. APPROVED: Patti Hicks, City Secretary APPROVED AS TO FORM: ~.-Hikel, C/~'~ t(~omey - Cell Site Number: X438 Address: 5033 Clover Valley Rd The Colony Texas 75056 OPTION AND LEASE AGREEMENT THIS OPTION AND LEASE AGREEMENT ("Agreement"), dated as of the date below, is entered into by The City of the Colony, a Texas Municipal Corporation, with a Tax ID//of 7,~'-IS'~O ~ 70 , having its principal office/residing at 6800, Main Street, The Colony, Texas 75056 (hereinafter referred to as "Landlord") and Metroplex Telephone Company, a Texas General Partnership, d/b/a AT&T WIRELESS, having an office at 5501 LBJ Freeway, Suite 200, MS 275, Dallas, Texas 75240 (hereinafter referred to as "Tenant"). BACKGROUND Landlord owns that certain plot, parcel or tract of land, together with all rights and privileges arising in connection therewith, located at 5033 Clover Valley, The Colony, Texas 75056, identified as a 1.29 acre tract of land as recorded in Volume 743, Page 44 of the Deeds Records of Denton County, Texas, more particularly described in the attached Exhibit 1 (collectively "Property"). Tenant desires to use a portion of the Property in connection with its federally licensed communications business. The parties agree as follows: 1. OPTION TO LEASE. (a) Landlord hereby grants Tenant the option to lease a portion of the Property consisting of (a) a room/cabinet space of approximately 119 square feet and (b) space on the structure and such easements as are necessary for the agtennas and initial installation as described on attached Exhibit I (collectively, "Premises"). ? (b) During the Option period and any extension thereof, and during the term of this Agreement, Tenant and its agents, engineers, surveyors and other representatives will have the right to enter upon the Property to inspect, examine, conduct soil borings, drainage testing, material sampling, and other geological or engineering tests or studies of the Property (collectively the "Tests"), to apply for and obtain licenses, permits, approvals, or other relief required of or deemed necessary or appropriate at Tenant's sole discretion for its use of the Premises and include without limitation applications tbr zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively referred to as "Governmental Approvals"), and otherwise to do those things on or off the Property that, in the opinion of Tenant, are necessary in Tenant's sole discretion to determine the physical condition of the Property, the environmental history of the Property, Landlord's title to the Property and the feasibility or suitability of the Property for Tenant's Permitted Use, all at Tenant's expense. Tenant will not be liable to Landlord or any third party on account of any pre-existing defect or condition on or with respect to the Property, whether or not such defect or condition is disclosed by Tenant's inspection. (c) In consideration of Landlord granting Tenant the Option, Tenant hereby agrees to pay Landlord the sum of One Thousand and No/100 Dollars ($1,000.00) upon execution of this Agreement. The Option will be for an initial term of six (6) months (the "Initial Option Term") and may be renewed by Tenant Ibr an additional six (6) months upon written notification to Landlord and the payment of an additional One Thousand and No/100 Dollars ($1,000.00) no later than ten (10) days prior to the expiration date of the Initial Option Term. (d) During the Initial Option Term and any extension thereof, Tenant may exercise the Option by notifying Landlord in writing. If Tenant exercises the Option then Landlord leases the Premises to the Tenant subject to the Ibllowing terms and conditions. If Tenant does not exercise the Option during the Initial Option Term, or any extension thereof, this Agreement will terminate and the parties will have no further liability to each other. Tenant does not have to provide notice to Landlord that Tenant will not exercise the Option. 2/03/2000~,:v/o~1 2. PERMITTED USE. Tenant may use the Premises for the transmission and reception of communications signals and the installation, maintenance, operation, repair and replacement of its communication fixtures and related equipment, cables, accessories and improvements (collectively the "Communication Facility) and any other items necessary to the successful and secure operation of the Communication Facility, as substantially described in Exhibit 1; such use includes the right to test, survey and check title on the Property. Landlord's execution of this Agreement will signify Landlord's approval of Exhibit 1. Tenant agrees to comply with all applicable governmental laws, rules, statutes and regulations, relating to its use of the Communication Facility on the Property. Tenant has the right to modify, supplement, replace, upgrade, expand the equipment or relocate the Communication Facility within the Premises in accordance with details shown in Exhibit 1, at any time during the term of this Agreement. 3. TERM. (a) The initial lease term will be five (5) years ("Initial Term"), commencing upon the Commencement Date, as defined below. The Initial Term will terminate on the last day of the month in which the fifth annual anniversary of the Commencement Date occurred. (b) This Agreement will automatically renew Ibr five (5) additional five (5) year Term(s) (the "Extension Term"), upon the terms and conditions as reflected in this Agreement unless the Tenant notifies the Landlord in writing of Tenant's intention not to renew this Agreement at least ninety (90) days prior to the expiration of the existing Term. (c) If Tenant remains in possession of the Premises after the termination or expiration of this Agreement then Tenant will be deemed to be occupying the Premises on a month to month basis (the "Holdover Term"), subject to the terms and conditions of this Agreement. (d) The Initial Term and the Extension Term and the Holdover Term are collectively referred to as the Term ("Term"). 4. RENT. (a) Commencing on the date that Tenant commences construction (the "Commencement Date"), Tenant will pay the Landlord a monthly rental payment of Two Thousand and No/100 Dollars ($2,000.00), plus any applicable tax, to Landlord, at the address set ~brth above, on or before the 5th day of each calendar month in advance. Rent will be prorated for any partial month. (b) Beginning with year one of each Extension Term, the monthly rent will increase by fifteen percent (15 %) over the rent paid during the previous Term. 5. APPROVALS. (a) Landlord agrees that Tenant's ability to use the Premises is contingent upon its suitability for Tenant's intended use and Tenant's ability to obtain all governmental licenses, permits, approvals or other relief required of or deemed necessary by Tenant for its use of the Premises, including without limitation applications for zoning variances, zoning ordinances, amendments, special use permits, and construction permits (collectively referred to as "Governmental Approvals"). Landlord authorizes Tenant to prepare, execute and file all required applications to obtain Governmental Approvals for Tenant's use under this Agreement and agrees to reasonably assist Tenant with such applications. (b) Tenant has the right to obtain a title report or commitment for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by a surveyor of its choice. (c) Tenant may also obtain, at Tenant's sole cost and expense, soil boring, percolation, engineering procedures, environmental investigation or other tests or reports ("Tests") on, over, and under the Property, necessary to determine if the Tenant's use of the Premises will be compatible with Tenant's engineering specifications, system, design, operations or Governmental Approvals. 6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as follows: 2 2/03/2000(4/2wm} Option Structure Lease (a) by either party on thirty (30) days prior written notice, if the other party remains in default under Paragraph 15 of this Agreement after the applicable cure periods; (b) by Tenant upon written notice, if Tenant is unable to obtain, or maintain, any required approval(s) or the issuance of a license or permit by any agency, board, court or other governmental authority necessary for the construction or operation of the Communication Facility as now and hereafter intended by Tenant or if Tenant determines in its sole discretion that the cost of obtaining or retaining the same is commercially unreasonable; (c) by Tenant on ninety (90) days written notice for any reason other than (a) or (b) above, or paragraph 7, below, so long as Tenant pays Landlord a termination fee equal to six (6) months rent, at the current rent rate. 7. INSURANCE. Tenant will carry during the Term, at its own cost and expense, the following insurance: (i) "All Risk" property insurance for its property's replacement cost; (ii) commercial general liability insurance with a minimum limit of liability of $5,000,000 combined single limit for bodily injury or death/property damage arising out of any one occurrence; and (iii) Workers' Compensation Insurance as required by law. 8. INTERFERENCE. (a) Where there are existing radio tYequency user(s) on the Landlord's Property, the Landlord will provide Tenant with a list of all existing radio frequency user(s) and their frequencies on the Property to allow Tenant to evaluate the potential tbr interference. Tenant warrants that its use of the Premises will not interfere with existing radio frequency user(s) on the Premises as long as the existing radio frequency user(s) operate and continue to operate within their frequencies and in accordance with all applicable laws and regulations. (b) Landlord will not grant, after the date of this Agreement, a lease, license or any other right to any third party for use of the Property, if such use may in any way adversely affect or interfere with Tenant's Communication Facility. Landlord will notify Tenant prior to granting any third party the right to install and operate communications equipment on the Property. Nothing contained herein will restrict Tenant nor its successors and assigns from installing and modifying its communications equipment providing that such modifications and installations are in substantial compliance with Exhibit 1. (c) Landlord will not use, nor will Landlord permit its employees, tenants, licensees, invitees or agents to use, any portion of the Property as described in Exhibit A in any way which interferes with the operations of Tenant or the rights of Tenant under this Agreement. Landlord will cause such interference to cease upon not more than twenty-four (24) hour written notice from Tenant. In the event any such interference does not cease within the aforementioned cure period then the parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the right, in addition to any other rights that it may have at law or in equity, for Landlord's breach of this Agreement, to elect to enjoin such interference or to terminate the Agreement upon notice to Landlord. 9. INDEMNIFICATION. (a) Tenant agrees to indemnify, defend and hold Landlord harmless t¥om and against any injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' tees and court costs) arising directly from the installation, use, maintenance, repair or removal of the Communication Facility or the breach of any provision of this Agreement, except to the extent attributable to the negligent or intentional act or omission of Landlord, its employees, agents or independent contractors. (b) Landlord agrees to indemnify, defend and hold Tenant harmless from and against any and all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or expenses (including reasonable attorneys' fees and court costs) arising directly from the actions or failure to act of Landlord or its employees or agents, or the breach of any provision of this Agreement, 3 2/03/2000(4/27/0D Option Structure Lease except to the extent attributable to the negligent or intentional act or omission of Tenant, its employees, agents or independent contractors. (c) Notwithstanding anything to the contrary in this Agreement, each of Tenant and Landlord hereby waives any claims that they may have against the other with respect to consequential, incidental or special damages. 10. WARRANTIES. (a) Tenant and Landlord each acknowledge and represent that it is duly organized, validly existing and in good standing and has the right, power and authority to enter into this Agreement and bind itself hereto through the party set Irbrth as signatory for the party below. (b) Landlord represents and warrants that: (i) Landlord solely owns the Property as a legal lot in fee simple, or controls the Property by lease or license, unencumbered by any liens, restrictions, mortgages, covenants, conditions, easements, leases, agreements of record or not of record, which would adversely affect Tenant's use and enjoyment of the Premises under this Agreement; (ii) as long as Tenant is not in default then Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of the Premises; (iii) its execution and performance of this Agreement will not violate any Laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding on the Landlord; and (iv) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other security interest, Landlord will use best efforts to provide promptly to Tenant a mutually agreeable Subordination, Non-Disturbance and Attornment Agreement. 11. ENVIRONMENTAL, (a) Landlord and Tenant agree that each will be responsible for compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene condition or matters as may now or at any time hereafter be in effect, that are now or were related to that party's activity conducted in, or on the Property. (b) Landlord and Tenant agree to hold harmless and indemnify the other from and to assume all duties, responsibilities, and liabilities at is sole cost and expense, tbr all duties, responsibilities and liability (for payment of penalties, sanctions, tbrfeitures, losses, costs, or damages) and tbr responding to any action, notice, claim, order, summons, citation, directive, litigation, investigation or proceeding which is related to (i) failure to comply with any environmental or industrial hygiene law, including without limitation any regulations, guidelines, standards or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or matters as may now or hereafter be in effect, and (ii) any environmental or industrial hygiene conditions that arise out of or are in any way related to the condition of the Property or activities conducted by the party thereon, unless the environmental conditions are caused by the other party. (c) The indemnifications of this Paragraph specifically include reasonable costs, expenses and fees incurred in connection with any investigation of Property conditions or any clean-up, remedial, removal or restoration work required by any governmental authority. The provisions of this Paragraph will survive the expiration or termination of this Agreement. 12. ACCESS. At all times throughout the term of this Agreement, and at no additional charge to Tenant, Tenant and its employees, agents, and subcontractors, will have twenty-four hour, seven day access to and over the Property, from an open and improved public road to the Premises, tbr the installation, maintenance and operation of the Communication Facility and any utilities serving the Premises. In the event any public utility is unable to use the access provided to Tenant the Landlord hereby agrees to grant an additional access either to Tenant or to the public utility, for the benefit of Tenant, at no cost to Tenant. 4 2/03/2000~4/27/01} Option Structure Lease 13. REMOVAL. All portions of the Communication Facility brought onto the Property by Tenant will be and remain Tenant's personal property and, at Tenant's option, may be removed by Tenant at any time during the Term. Landlord covenants and agrees that no part of the Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be considered as being affixed to or a part of, the Property, it being the specific intention of the Landlord that all improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and remain the property of the Tenant and may be removed by Tenant at any time during the Term. Within one hundred twenty (120) days of the termination of this Agreement, Tenant will remove all such improvements. Footings, foundations, and concrete will be removed to a depth of one foot below grade. Tenant will, to the extent reasonable, restore the Premises to its condition at the commencement of this Agreement, reasonable wear and tear and loss by casualty or other causes beyond Tenant's control excepted. Tenant will not be responsible for the replacement of any trees, shrubs or other vegetation, nor will Tenant be required to remove from the Premises or the Property any underground utilities, except for those underground utilities that have been installed by Tenant. 14. MAINTENANCE; UTILITIES. (a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and damage from the elements excepted. Landlord will maintain and repair the Property and access thereto, in good and tenantable condition, subject to reasonable wear and tear and damage from the elements. (b) Tenant will be solely responsible for and promptly pay all utilities charges for electricity, telephone service or any other utility used or consumed by Tenant on the Premises. Landlord will fully cooperate with any utility company requesting an easement over, under and across the Property in order for the utility company to provide service to the Tenant. In the event Tenant cannot secure its own metered electrical supply, Tenant will have the right, at its own cost and expense, to submeter from the Landlord. Tenant will pay on a monthly basis the current local utility company rate for submetered electric, after the meter is read by the Landlord and billed to Tenant. Landlord will not be responsible for interference with, interruption of or failure, beyond the reasonable control of Landlord, of such services to be furnished or supplied by Landlord. (c) The Landlord reserves the right to pertbrm maintenance on the water tank, both structural and cosmetic (paint), at whatever intervals may be required to assure the integrity and longevity of the facility, provided Landlord makes best efforts to provide Tenant with sufficient notification of the intended work and the opportunity, at Landlord's cost and expense, to temporarily relocate and continue to operate its antennas, or otherwise to secure the antennas or the Communication Facility generally, to protect them from damage. Tenant will be permitted to install any type of temporary facility necessary to keep its Communication Facility operational. Further, any maintenance will be conducted by Landlord as diligently and expeditiously as possible. However, Landlord will not be responsible for system outages of up to thirty (30) days resulting from Landlord's need for unusually extensive maintenance and any inability of Landlord to accommodate a relocation of Tenant's antennas to keep them operational. (d) To the extent beyond Landlord's reasonable control, Landlord will not be liable for any damage or injury which may be sustained by Tenant or any other person, as a consequence of the failure, breakage, leakage or obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof, drains, leaders, gutters, valleys, down spouts or the like or the like or of the electrical, gas, power, conveyor, refrigeration, sprinkler, air-conditioning or heating systems, elevators or hoisting equipment, or by reason of the elements, or attributable to any interference with, interruption of or failure, beyond the reasonable control of Landlord, of any services to be furnished or supplied by Landlord. 15. DEFAULT AND RIGHT TO CURE. (a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non-payment of Rent if such rent remains unpaid for more than thirty (30) days after receipt of written notice of such failure to 5 2/03/2000(4/27/01) Option Structure Lease pay from Landlord; or (ii) Tenant's failure to per/brm any other term or condition under this Agreement within tbrty-five (45) days after receipt of written notice from Landlord specifying the failure. No such failure, however, will be deemed to exist if Tenant has commenced to cure such default within such period and provided that such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond any applicable cure period, Landlord will have the right to exercise any and all rights and remedies available to it under law and equity, including the right to cure Landlord's default and to deduct the costs of cure t¥om any moneys owed to Landlord by Tenant. (b) The lbllowing will be deemed a default by Landlord and a breach of this Agreement. Landlord's failure to pertbrm any term or condition under this Agreement within forty-five (45) days after receipt of written notice t¥om Tenant specifying the failure. No such failure, however, will be deemed to exist if Landlord has commenced to cure the default within such period and provided such efforts are prosecuted to completion with reasonable diligence. Delay in curing a default will be excused if due to causes beyond the reasonable control of Landlord. If Landlord remains in default beyond any applicable cure period, Tenant will have the right to exercise any and all rights available to it under law and equity. 16. ASSIGNMENT/SUBLEASE. Tenant may assign or sublease this Agreement, in whole or in part, without Landlord's consent, to the Tenant's principal, affiliates, subsidiaries, subsidiaries of its principal or to any entity which acquires all or substantially all of the Tenant's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition, or other Tenant may assign, sell or transfer its interest under this Agreement without the approval or consent of Landlord, to the Tenant's principal, affiliates, subsidiaries, subsidiaries of its principal or to any entity which acquires all or substantially all of the Tenant's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition, or other business reorganization. Upon notification to Landlord of such assignment, transfer or sale, Tenant will be relieved of all future performance, liabilities and obligations under this Agreement. Tenant may not otherwise assign this Agreement without Landlord's consent. 17. NOTICES. All notices, requests, demands and communications hereunder will be given by first class certified or registered mail, return receipt requested, or by a recognized overnight courier, postage prepaid, to be effective when properly sent and received, refused or returned undelivered. Notice will be addressed to the parties at the addresses set tbrth above (as to Tenant, Attn.: System Development Manager; with a copy to AT&T Wireless Services, 5959 Corporate Drive, Suite 2500, Houston, TX 77036, Attn.: Property Management, 1-800-243-3114), and a copy to AT&T Wireless Services, 11760 North Highway 1, West Tower-Third Floor, North Palm Beach FL 33408, Cell Site #287D, Attn.: Legal Department). Either party hereto may change the place for the giving of notice to it by thirty (30) days written notice to the other as provided herein. 18. SEVERABILITY. If any term or condition of this Agreement is tbund unenforceable, the remaining terms and conditions will remain binding upon the parties as though said unentbrceable provision were not contained herein. However, if the invalid, illegal or unenforceable provision materially affects this Agreement then the Agreement may be terminated by either party on ten (10) days prior written notice to the other party hereto. 19. CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings affecting the Property, Landlord will provide notice of the proceeding to Tenant within forty-eight (48) hours. If a condemning authority takes all of the Property, or a portion sufficient, in Tenant's sole determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the title vests in the condemning authority. The parties will be entitled to share in the condemnation 6 2/03/2000(4~27/Ol) Option Structure Lease proceeds in proportion to the values of their respective interests in the Property, which for Tenant will include, where applicable, the value of its Communication Facility, moving expenses, prepaid rent, and business dislocation expenses. Tenant will be entitled to reimbursement for any prepaid Rent. 20. TAXES. Tenant will pay all personal property taxes assessed on, or any portion of such taxes directly attributable to the Communication Facility. Tenant, upon presentation of sufficient and proper documentation will pay, within 30 days, an increase in real property taxes levied against the Property, excluding additional taxes that relate to the period prior to the Commencement Date, i.e., roll back taxes, which is directly attributable to Tenant's use of the Property, provided Tenant will be entitled to appeal any such increase payable by it. Landlord agrees that it will cooperate with an appeal of such taxes and will promptly pay all real estate taxes levied against the Property. 21. CASUALTY. Landlord will provide notice to Tenant of any casualty affecting the Property within seventy-two (72) hours of the casualty. If any part of the Communication Facility or Property is damaged by fire or other casualty so as to render the Premises unsuitable, in Tenant's sole determination, then Tenant may terminate this Agreement by providing written notice to the Landlord, which termination will be effective as of the date of such damage or destruction. Upon such termination, Tenant will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed for any prepaid Rent. 22. WAIVER OF LANDLORD'S LIENS. Landlord hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall be deemed personal property tbr purposes of this Agreement, regardless of whether any portion is deemed real or personal property under applicable law, and Landlord hereby consents to Tenant's right to remove all or any portion of the Communication Facility from time to time in Tenant's sole discretion and without Landlord's consent. 23. MISCELLANEOUS. (a) Amendment; Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by an authorized agent of the Landlord and an authorized agent of the Tenant. No provision may be waived except in a writing signed by both parties. (b) Short Form Lease. Either party will, at any time upon fifteen (15) days prior written notice t¥om the other, execute, acknowledge and deliver to the other a recordable Memorandum of Lease. Either party may record this memorandum at any time, in its absolute discretion. (c) Bind And Benefit. The terms and conditions contained in this Agreement will run with the Property and inure to the benefit of the parties, their respective heirs, executors, administrators, successors and assigns. (d) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof, constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and agreements. (e) Governing Law. This Agreement will be governed by the laws of the state in which the Premises are located, without regard to conflicts of law. (t) Interpretation. Unless otherwise specified, the following rules of construction and interpretation apply: (i) captions are tbr convenience and reference only and in no way define or limit the construction of the terms and conditions hereof; (ii) use of the term "including" will be interpreted to mean "including but not limited to"; (iii) whenever a party's consent is required under this Agreement, except as otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably withheld, conditioned or delayed; (iv) exhibits are an integral part of the Agreement and are incorporated by reference into this 7 2/03/2000(4/27/01 ) Option Structure Lease Agreement; (v) use of the terms "termination" or "expiration" are interchangeable, and (vi) reference to a default will take into consideration any applicable notice, grace and cure periods. (g) Estoppel. Either party will, at any time upon fifteen (15) days prior written notice t¥om the other, execute, acknowledge and deliver to the other a statement in writing (i) certifying that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying this Agreement, as so modified, is in tull tbrce and effect) and the date to which the rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to such party's knowledge, any uncured defaults on the part of the other party hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. Failure to deliver such a statement within such time will be conclusive upon the requesting party that (i) this Agreement is in full /brce and effect, without modification except as may be properly represented by the requesting party, (ii) there are no uncured defaults in either party's performance, and (iii) no more than one month's rent has been paid in advance. (h) Force Majeure. Notwithstanding anything to the contrary contained in this Agreement, if Landlord or Tenant is delayed or prevented from performing any act which it is obligated to perform under this Agreement for causes beyond its reasonable control (including, without limitation, repair, restoration and/or maintenance obligations) related to acts of God, war, governmental restrictions, or the inability to procure the necessary labor or materials, then Landlord or Tenant's time for performance of such obligation(s) hereunder will be reasonably extended by the period during which Landlord or Tenant was unable to perform, and the non-performing party will have no liability to the other party (nor will either party be entitled to terminate this Agreement or claim any abatement under this Agreement) on account of any such delay. (i) Legal Fees. Tenant agrees to reimburse Landlord for its reasonable legal fees for the review of this Agreement in an amount not to exceed One Thousand and No/100 Dollars ($1,000.00), upon receipt of reasonable proof of the same. (j) Mechanic's Lien. Tenant will not subject Landlord's interest in the Property to any mechanic's lien or any other lien whatsoever. If any mechanic's lien or other lien, charge or order for payment of money will be filed as a result of the act or omission of Tenant, Tenant will cause such lien, charge or order to be discharged or appropriately bonded or otherwise reasonably secured ("Secured") within sixty (60) days after notice from Landlord thereof. If Tenant will fail to cause the lien or encumbrance to be Secured within the sixty (60) day period, then Landlord will be entitled, but not obligated to, discharge or bond same. Tenant will indemnify and save Landlord harmless from all liabilities and costs to the extent resulting directly l¥om Tenant's failure to timely secure same. (k) Security Deposit. At the commencement of this Agreement, Tenant will deposit with Landlord the sum of Four Thousand and No/100 Dollars ($4,000.00) as security for the full and faithful performance of this Agreement by Tenant. Such sum will be segregated by Landlord in an interest-bearing trust account identified for this Agreement. Upon the expiration or termination of the Agreement as provided herein, said sum, or any balance thereof remaining after Landlord's rightful set off against the deposit after a default (including the expiration of applicable grace periods), will be returned to Tenant along with any interest accrued thereon (less a one percent (1%) per annum fee to Landlord for management of the account). (1) No Option. The submission of this Agreement for examination or consideration does not constitute a reservation of or option for the Premises. This Agreement will become effective as an Agreement only upon the legal execution, acknowledgment and delivery hereof by Landlord and Tenant. 8 2/03/2000(4/27/0 I) Option Structure Lease IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed this __ day of : r: ,2002. "LANDLORD" THE CITY OF THE COLONY Print Name: Dale Cheatham Its: City Manager "TENANT" METROPLEX TELEPHONE COMPANY, a Texas general partnership D/B/A AT&T Wireless By: Dallas Cellular Telephone Company, L.P., its managing partner By: McCaw Communications of Gainesville, TX, L-L-~, its general partner By: AT&T Wireless Services of San Antoniklnc, its general partner / Print Name: Michael E McCormick ,:,P-_//o2 ~'/D ! Its: Implementation Manager TENANT ACKNOWLEDGMENT: STATE OF TEXAS ) ) SS: COUNTY OF DALLAS ) / This instrument was acknowledged before me on c,~/,=,2~ , 2002, by Michael E. McCormick, Implementation Manager of ,AT&T Wireless Services of San A/ntonio, Inc. a Texas Corporation, on behalf of said corporation as sole member of McCaw Communications of Gainesville, TX,.~I~,G, a Texas limited liability company, as general partner of Dallas Cellular Telephone Company, L.P., as managing partner ot]Metroplex Telephone Company, d/b/a AT&T Wireless. IN WITNESS WHEREOF, I have hereunto set my hand and affixed m,y official seal the day and year first above written. Notary Public .~/ My Commission Expires: ..~/t/O ./Off 9 2/03/2000(4/27/0]) Option Structure Lease CORPORATE ACKNOWLEDGMENT STATE OF ~ ,t . _) ) SS: COUNTY OF ' ' _) I CERTIFY that on "-' , - , 200 '_.:, ~_ , [name of representative] personally came before me and acknowledged under oath that he or she: (a) is the [title] of [name of corporation], the corporation named in the attached instrument, (b) was authorized to execute this instrument on behalf of the corporation and (c) executed the instrument as the act of the corporation. 10 2/03/2000(4/27/Ol) Option Structure Lease I:~ATTW-LIBERTY~932-005-008 COLONY-MA~ZONING.dwg, 02/13/2002 01:11:51 PM / - ,~"~, / !',, IF- -- ~-~t~' ~ .. .~ :I- . l~ ~ ~.~