HomeMy WebLinkAboutOrdinance No. 00-1197 CITY OF THE COLONY, TEXAS
ORDINANCE NO. t0dP-,/,/~'7
AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS,
AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT
WITH METRICQM, INC. FOR INSTALLATION AND MAINTENANCE
OF CERTAIN ANTENNAS AND COMMUNICATION EQUIPMENT ON
THE CITY'S WATER TOWER LOCATED AT 5260 NORTH COLONY
BLVD.; 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 M~tric0m, Inc. for installation and maintenance
of certain antennas and communication equipment on the City's water tower located at 5260 North
Colony Blvd. 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.
DULY PASSED AND APPROVED by the City Council of the City of The Colony, Texas
this 5t~ day of June, 2000.
William W. Mar~in~, M~yor ~
ATTEST:
Patti A. Hicks, TRMC, City Secretary
APPROVED AS TO FORM:
Tiffa~yl¥-Iae~tling, City Att-'- ~mey
Communication Facility Lease
THIS COMMUNICATION FACILITY LEASE (this "Lease") is made as of ~ 2000 (the "Effective Date"), by and between the
City of The Colony, a Texas munidpal corporation, as lessor (the "City"), and METRICOM, INC., a Delaware corporation, as lessee
("Mei~'icom")(Collectively "the parties").
1. PRI~llS~. The City is the owner of that certain real property located at 5260 N. Colony (N. Colony & Pruitt Drive) in the City of the
Colony, State of Texas, as more particularly described on Exhibit A attached hereto and incorporated hereto by reference (the "Property"). The
City hereby leases to Metricom certain portions of the water tower and ground space (collectively, the "Premises") located on the Property. The
Premises are more particularly described on Exhibit B attached hereto and incorporated herein by reference. Metricom shall have the right to
use the Premises for the purpose of installing, removing, replacing, modifying, maintaining, and operating a communications facility induding
no more than three (3) equipment cabinets; twenty-four (24) radios and antennas; and associated equipment, fixtures, and cabling (collectively
the "Communication Equipment") further described in Exhibit D attached. Installation of the Communication Equipment must be in strict
compliance with the attached site plan. The installation of any other additional equipment requires the express written approval of the City,
such approval not to be unreasonably withheld, conditioned, or delayed.
2. TERM O1~ Lr~SE. The initial term (the "Term") of this Lease shall be sixty (60) calendar months commencing upon the start of installation of
the Communication Equipment (the "Commencement Date") in and about the Premises and expiring on the date which is sixty (60) calendar
months unless earlier terminated by either party in accordance with the provisions herein. Metricom shall have the right to extend the Term for
two (2) successive sixty (60) month terms (the "Renewal Terms") on the same terms and conditions. Metricom agrees to provide the City with
written notice within ninety (90) days of the end of the term that it is about to expire. This Lease shall automatically be extended for each
successive Renewal Term unless (i) the City provides Metricom with written notice of its reasonable cause for not renewing or (ii) Metricom
provides the City with written notice of its intention not to renew. All notices under this provision will be delivered at least sixty (60) days
prior to commencement of the succeeding Renewal Term.
3. RENT AND COSTS. Metricom shall pay the City One Hundred Twenty Thousand Dollars ($120,000.00) as full rental for the initial Term (the
"Rent"), payable in quarterly instalhnents of SIX Thousand Dollars ($6,000.00) each (the "Quarterly Payments"). The first Quarterly payment of
Rent (the "Initial Payment") shall be payable within thirty (30) days of the Commencement Date, prorated as appropriate. Subsequent
Quarterly Payments shall be payable on or before January 1, April 1, July 1, and October 1 of each year. The 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. All payments due
under this Agreement shall be sent to the City's address indicated under § 12 below, to the attention of Director of Finance
In the event Metricom fails to make a Rent payment within thirty (30) days of the due date, Metricom shall pay to Lessor a late fee equal to six
percent (6%) of the amount of the delinquent payment.
4. ACCESS TO COMMUNICATION EQUIPMENT. After the initial installation of the Communication Equipment, the City shall permit Metricom
unrestricted access to the Property and Premises seven (7) days a week, twenty-four (24) hours a day. To facilitate such 24/7/365 access,
Metricom shall have the right to install a lockbox at a mutually agreeable location or the parties shall make other appropriate arrangements.
5. INSURANCE. Metricom at its own cost shall obtain and maintain at all times during the term of this Lease Commercial General Liability
insurance, including contractual liability, protecting Metricom in an amount not less than One Million Dollars ($1,000,000) each occurrence and
in an amount not less than One Million Dollars ($1,000,000) annual aggregate. Such insurance pohcy shall name the the City, its council
members, officers, and employees as additional insureds as respects liability arising out of or in connection with the presence of
Communication Equipment at the Premises or any act or omission of Metricom with respect to the Premises or with respect to the
Communication Equipment at the Premises. Such coverage shall not be canceled or materially altered to reduce the policy limits until the City
has received at least thirty (30) days' advance written notice of such cancellation or change. Metricom shall be responsible for notifying the City
of such change or cancellation. Such insurance pohcy shall contain a severability of interest clause.
6. INDEMNrrY. Metricom shall indemnify, protect, defend, and hold the City, its council members, officers, and employees harmless from
and against any and all claims, liabilities, judgments, costs, damages, and expenses, including reasonable attorney's fees, arising out of or in any
way related to the Communication Equipment, including the installation, maintenance, operation, or removal thereof, except to the extent that
such claim, liability, judgement, cost, damage, or expense arises from the negligence or willful misconduct of the City, its employees, or agents.
The provisions of this Section 6 shall survive the expiration or earher termination of this agreement.
7. NON-INTERi~ERENCE. The Communication Equipment and the use thereof shall not interfere with the use of any other communication or
similar equipment of any kind and nature owned or operated by the City or other occupants in the Building existing as of the Commencement
Date, except as may be permitted by apphcable laws; provided, however that subsequent to the installation by Metricom of the Communication
Equipment, the City agrees not to install or allow installation of new equipment on the Premises if such equipment causes interference with
Metricom's operations except as may be permitted by applicable laws. All interference claims shall be settled in accordance with the then
prevailing interference rules and regulations promulgated by the FCC.
8. UTILm~. Metricom shall be entitled to install, as allowed by law, and shall pay for any utilities and services required for the
Communication Equipment. The City shall provide Metricom, at Metricom's cost, with such reasonable assistance as is necessary and in
compliance with all applicable laws, rules and regulations, to enable Metricom to arrange for such utilities and services.
9. ASSIGNMENT. This Lease shall not be assigned or subleased by Metricom without express written consent of the City, which shall not be
unreasonably withheld, delayed, or conditioned. The transfer of the rights and obhgations of Metricom to an affiliate of Metricom shall not be
deemed an assignment. Metricom shall, however, give to the City at least thirty (30) days' prior written notice of any transfer for which the
City's consent is required hereunder. For purposes of this Lease, the term "affiliate" means a corporate parent of Metricom, a partnership or
joint venture in which Metricom owns an interest, or a subsidiary entity of Metricom.
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10. IMPROVEMENTS; REMOVAl. OF COMMUNICATION EQUIPMENT. Metricom may, at its expense, make such improvements to the Premises as
it deems necessary for the operation of its communication facility, except as prohibited by law. The City agrees to cooperate with Metricom,
upon payment of all applicable standard and customary fees, if any, by Metricom by promptly (without violating applicable laws, rules or
regulations) responding to Metricom's request for any required permits or zoning approvals. The Communication Equipment is and shall
remain the property of Metricom; and upon the expiration or earlier termination of this Lease, Metricom shall promptly remove the
Communication Equipment (not more than 30 days thereafter), at Metricom's sole cost and expense, and return the Premises to substantially
the condition existing on the Commencement Date, normal wear and tear excepted, or, upon agreement of the City, leave it in its improved
condition, as reasonably appropriate under the circumstances.
If the City does not agree to leaving the premises in its improved condition, and if Metricom fails to remove the Communication Equipment
within 30 days after expiration or earlier termination of fftis Agreementi as provided herein, the City shall have the fight to remove the
Communication Equipment and other property of Metricom, at Metricom's expense, and shall not be liable for any damage to such property
resulting from such removal.
10.1 NO LIMITATION ON POLICE POWER. Nothing in this agreement shall be construed to limit the zoning authority or any other police
power of the City.
11. TERM~qATION PRIOR TO EXPIRATION. This Lease may be terminated by either party upon forty-five (45) days' prior written notice to the
other party upon a default of any material covenant or term hereof by the other party which is not cured within forty-five (45) days of receipt of
written notice of default; or, if such default is not curable within forty-five (45) days, if the defaulting party fails to commence such cure within
forty-five (45) days or fails thereafter diligently to prosecute such cure to completion; provided that the grace period for any monetary default
shall be ten (10) days from receipt of notice. This Lease may also be terminated by Metricom on at least forty-five (45) days' prior written notice
to the City if (i) Metricom is unable to obtain any requisite permit or authorization or any such permit or authorization is subsequently revoked
or not renewed; (ii) any physical equipment or electronic emissions materially interfere with the operation of the Communication Equipment; or
(iii) Metricom determines, based on technological or other developments, that it will be unable to utilize the Premises for their intended
purposes.
12. NOTICES. Any notice or demand required to be given herein shall be made by certified or registered mail, postage paid, return receipt
requested, or reliable overnight courier to the address of the respective parties set forth below and shah be deemed given three (3) days after
deposit in the mail as just described or on the date delivery is first attempted in the case of overnight courier, as follows:
METRICOM, INC. THE CITY OF THE COLONY
Attn: Network Real Estate Atto: City Manager
980 University Avenue 6800 Main Street
Los Gatos, CA 95032 The Colony, TX 75056
Telephone: 972-625-1756
Either party may change its address by giving the other notice of a new address in accordance with the terms of this § 12. All payments to the
City required hereunder shall be sent to the address specified for the City above.
13. AI'PLICAI~I.E LAW. This Lease shall in all respects be governed by the laws of the State of Texas without regard to its conflicts of law
principles. If suit is brought by a party to this Ag~ement, the parties agree that trial of such action shall be vested in the state courts of Texas,
County of Denton, or in the United States District Court for the Northern District of Texas.
14. TITLE AND QUIET ENJOYMENT. The City represents and agrees (a) that the City is the owner in fee of the Property and Premises or that the
City holds a leasehold estate in the same under which the City has the right to enter into this Lease of the Premises for their intended purposes
hereunder; (b) that the person signing this Lease has the authority to execute it on behalf of the City; and (c) that Metricom shall have access to
and quiet enjoyment of the Property and Premises at all times throughout the initial Term of this Lease and any Renewal Term, so long as
Metricom is not in default beyond the expiration of any applicable cure period; and (d) that the City will not have unsupervised access to
Metricom's communications facility in the Premises, except wifffin the scope of its police power authority. City shall have the right to inspect the
Premises to determine compliance with applicable laws, rules and regulations during reasonable business hours on two (2) business day' prior
written notice to Metricom; provided, however, that City shall not alter, damage, move, disrupt, turn off, adjust or otherwise affect the
continuous operation of the Communication Equipment.
14.1. TOWER MAINTENANCE AND EMERGEI~CY ENTRY. The City shall provide Metricom with 30 days written notice of any essential
maintenance to the tower in the vicinity of Metricom's lease space. In the event of an emergency situation which poses an immediate threat of
substantial harm or damage to persons and/or property on Lessor's property and which requires entry on the Premises, Lessor may enter the
Premises and take such actions as are required to protect individuals or personal property from such immediate threat of substantial harm or
damage; provided that promptly after such emergency entry into the Premises (and in no event later than twenty-four [24] hours), Lessor gives
telephonic and written notice to Metricom of Lessor's entry onto the Premises. In addition to Lessor's rights under the preceding sentence,
Lessor will have the right to enter the Premises to visually inspect the Premises. Except in the event of an emergency situation, Lessor agrees
that it will not inspect or otherwise disturb the Communication Equipment without a representative of Metricom being present.
15. SHORT-FORM MEMORANDUM. Upon Metricom's request, the City agrees to execute a Memorandum of Lease, in the form attached hereto
as Exhibit C and incorporated herein by reference and acknowledges that Metricom may record such Memorandum of Lease in the official
records of the county where the Building is located. In the event the Building is encumbered by a mortgage or deed of trust, the City agrees to
assist Metricom, at no cost to the City, in obtaining a nondisturbance and attornment agreement in favor of Metricom for each such mortgage or
deed of trust. If a Memorandum of Lease is in fact recorded, upon termination of this Lease, Metricom agrees to execute and record a quitclaim
deed or such other document as may reasonably be required by the City or a title company to evidence the termination of Metricom's rights in
the Premises.
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16. SEvl~l~Blturrv. If any one or more of the provisions of this Lease shall be held by a court of competent jurisdiction in a final judicial action
to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Lease and shall in no
way affect the validity, legality or constitutionality of the remaining provisions of this Lease. Each party hereby declares that it would have
entered into this Agreement and each Provision hereof irrespective of the fact that any one or more Provisions be declared illegal, invalid or
unconstitutional.
16.1. W,~IVER O1~ Bl~ra~c~I. No waiver by any party hereto of a breach of any provision of this Agreement shall constitute a waiver of any
preceding or succeeding breach of the same or any other provision hereof.
17. LE6M, FEES. If any party commences legal proceedings for any relief against the other party arising out of or to interpret this Lease, the
losing party shall pay the prevailing party's legal costs and expenses incurred in connection therewith, induding reasonable attorney's fees and
costs as determined by the court. As used herein, "legal proceedings" includes any arbitration proceedings to which the parties may submit.
18. COUNTERPARTS; FACSIMILE SIGNATURES. This Lease may be executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument. A copy of this Lease bearing the signature of a party which is
transmitted by facsimile shall have the same legal effect as the personal delivery of a copy of this Lease bearing an original signature.
19. ENTIRE AGREEMENT; AMENDMENTS. This Lease, together with the Exhibits attached hereto, constitutes the entire understanding and
agreement of the parties with respect to its subject matter; and there are no representations, promises or agreements between the parties except
those found in this agreement; and any and all prior agreements, understandings or representations with respect to its subject matter, whether
written or oral, are hereby canceled in their entirety and are of no further force or effect. Any amendments to this Lease must be in writing and
executed and delivered by both parties.
Lessor: The City of the Colony, a Texas municipal METRICOM, INC., a Delaware corporation
corporation
[71a1¥~1 b r I i~ r o I L~ ~- n ,
Its: Ci.ty Manager Its:
Date: ..7'U ff ,200 Date: JUN 2 8 2000 ,2000
B ·
Patty Hicks
Its: City Secretary
Date: ~'D ~/E ~ ,2000
Approved as to Form:
Ci~_ Attorney_
Approved As To Form
ROW Legal Department
By:
Date:
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ACKNOWLEDGEMENTS
STATE OF~~~ _~.~_ ~ )
)
COUNTY OF D
SS.
)
~ ~)~ ~~ before me, ~C'~~ Notary Public, personally appe~ed
~ ~ ~x[~. ~~t~ , person~ly ~own to me (or proved to me on the bas~ of sa~sfactory
evidence) to ~ the person whose name is subscribed to the ~ ~ment and
ac~owledged to me ~at he ex~uted the same in ~s authorized capaci~, ~d that by ~s
si~mre on ~e im~ment, the person, or the en~ upon ~half of which the person acted,
ex~uted ~e imminent.
~i~e~s ~n~d~fficial seal' ~ ...................................... ~
Nota~ Public ~}~[ .~.~c,S~o~ ~
~ ~;: ...... ~ ~ Comm~ion ~i~ 07~8~2 ~
My co~ssion expires: ~--~- ~~7 -,;,o~r,,,
v
STATE OF )
) SS.
COUNTY OF )
On , before me, , Notary Public, personally appeared
, personally known to me (or proved 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 he executed the same in his authorized capacity, and that by his
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:
[EXHIBIT A]
[DESCRIPTION OF PROPERTY]
This exhibit is attached to and incorporated into that certain Lease dated as of
· ~L) I0 ~ ~1~, 2000, by and between METRICOM, INC., a Delaware corporation, as licensee, and
the City of The Colony, a Texas municipal corporation, as Lessor, and references the location and/or legal
description of the property subject to the Lease.
All of that real property situate in the City of the Colony County of Denton State of Texas described as
follows:
Municipal water tower and grounds located at 5260 N. Colony, (N. Colony & Pruitt);
Ldssor s Initials Metricom's Initials
[EXHIBIT BI
[LOCATION OF PREMISES AND EQUIPMENT]
This exhibit is attached to and incorporated into that certain Lease dated as of
~-L} }0 ~ ,.~ ! ,2000, by and between METRICOM, INC., a Delaware corporation, as lessee, and
the City of The Colony, a Texas municipal corporation as Lessor, and references the location of the
Premises and Communication Equipment within the Property to be utilized by Metricom pursuant to the
Lease.
Tclcphonc Pruit[
Prol~z~ed 6'
buried
i Approx.
cascmcnt
Proposed
12' by 12' [ v 120' WaterTower ~ 1 /.."~'
~l_~ase Space ~ with one whip [ //
for I amana on top ~ /
~ Metricom
xxx 0
[~op,~cd 'x ~ Electricfnlo
Ing~ss and Nx 0 enclosure
Approx. 170'
North Cohmy Boulevard
Lessor's Access Contacts:
During Business Hours: After Business Hours:
Name: Steve Chutchian, Dir. Public Works Name: Lanny Lambert, City Manager
Phone: 972-625-1756 Phone: 972-625-7383
Cell/PCS: 972-754-8095 Ceil/PCS: 214-289-6662
Pager: Pager: 972-558-9551
Subject to prior review and agreement by the City Manager, Metricom may replace the attached drawings of the
location of the Premises and Communication Equipment with construction drawings depicting same. Such
replacement drawings shall be deemed a part of this Lease and be binding on Metricom and the City.
[Exhibit C]
Recording Requested by:
METRICOM, INC.
980 University Avenue
Los Gatos, CA 95032
When Recorded Mail to:
METmCOM, INC.
Attn: Network Real Estate
980 University Avenue
Los Gatos, CA 95032
(space above this line fvr Recorder' s use only)
Memorandum of Lease
THIS MEMORANDUM OF LEASE is entered into as of ,-~-U ~1~ ~ ~ by and between
the City of The Colony, a Texas municipal corporation (the "City") and METRICOM, INC., a
Delaware corporation with an office at 980 University Avenue, Los Gatos, California ("Lessee").
AGREEMENT
1 LEASE OF PREMISES. For the purpose of installing, operating, and maintaining a communication
f~.'~ ,~an_d ~other improve,m,,ents,,,a,s described in that certain Communication Facility Lease dated,
~ 2000, (the Lease ), the City hereby leases to Lessee, and Lessee hereby leases from the
City, certain premises more particularly described in, and on the terms and conditions more particularly
set forth in the Lease by and between the City and Lessee, which terms and conditions are hereby
incorporated by reference.
2 The subject property affected by the recordation of this Memorandum of Lease is described in
Attachment A attached hereto and incorporated herein by reference., The portion of the property being
leased to Lessee pursuant to this Memorandum of Lease and the Lease is referred to as the "Premises" in
the Lease and is described in Attachment B attached hereto and incorporated herein by reference.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and
year first above written.
Lessor: City of The Colony, ak~ munici~or~on/~.~__
By: ~-~/-~.~ ~ ~
~-~--- ~/ Lanny Lambert
[name typed]
Its: City Manager
Metn'com: METRICOM, INC.(~ ~
By: ~
ATTACHMENT A
This attachment is attached to that certain Memorandum of Lease dated as of
~]'-D k~E~; ~t3C)c,3, by and between METRICOM, INC., as Lessee, and the City of The
Colony, a Texas municipal corporation, as Lessor, and references all of that certain real property
situate in the City of the Colony, County of Denton, State of Texas, described as follows:
Municipal water tower and associated grounds located at 5260 N. Colony (N. Colony & Pruitt)
ATTACHMENT B
This attachment is attached to that certain Memorandum of Lease dated as of
~"'O tOE 5! ~t:t~ , by and between METRICOM, INC., as Lessee, and the City of The
Colony, a Texas municipal corporation, as Lessor, and references the location of the Premises
and Communication Equipment licensed to be installed and maintained under the
Memorandum of Lease and the Lease:
Tclcphonc Pruitt
Transformer
Proposed 6'
buncd
casement j Approx.
130'
I Proposed~-I
! 12' by 12' [ [ - 120: .Water Tower v \ /'~'
~Lease Space' with one whip /
; tbr antenna °:ht~ } //
~ Metricom
Equipment
",, O/o/'
x /
Propos~ .,~ 0 ~ El~tdc, n.o
Easement %~ //
Approx. 170'
Nodh Colony Boulevard
[EXHIBIT DI
ICOMMUNICATION EQUIPMENT]
On the tower:
16 Larsen Antennas
8 Decibel Antennas
Cable adequate to service antennas, running from cabinet to tower.
On the ~rounds:
Twelve feet by twelve feet (12' X 12')ground space for electronics cabinet.
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