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HomeMy WebLinkAboutPR 20780: COMMUNICATION FACILITIES LEASING AGREEMENT AT 1440 TERMINAL ROAD NIP- City of 4% ort rlitrrr www.PortArthurTx.gov INTEROFFICE MEMORANDUM Date: April 1, 2019 To: The Honorable Mayor and City Council Through: Harvey Robinson, Interim City Manager From: Donald Stanton,Acting Director of Water Utilities RE: P.R. 20780 for a Communication Facilities Leasing Agreement at 1440 Terminal Rd. Introduction: The intent of this Agenda Item is to seek the City Council's approval for the City Manager to enter into a five-year contract with GTE Mobilnet of South Texas Limited Partnership d/b/a Verizon Wireless of Basking Ridge, New Jersey, to install, maintain and operate the radio communications equipment, antennas, and appurtenances. Lease will generate a revenue source of $2,300.00 per month. Equipment will be attached to the new water tower on Terminal Road. Background: Access at the water tower at 1440 Terminal Road is needed to upgrade cellular services in the area. The minimum contract with Verizon Wireless is for five years. This is our new water tower. Budget Impact: Revenue source of$2,300.00 per month will be realized. Recommendation: It is recommended that City Council approve P.R. 20780, authorizing the City Manager to enter into a contract with GTE Mobilnet of South Texas Limited Partnership d/b/a Verizon Wireless of Basking Ridge, New Jersey, to install, maintain and operate the radio communications equipment, antennas, and appurtenances. "Remember,we are here to serve the Citizens of Port Arthur" P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8101 X FAX 409.982.6743 P. R. No. 20780 Page 1 of 2 4/4/19 ds RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A COMMUNICATION FACILITIES LEASING AGREEMENT BETWEEN THE CITY OF PORT ARTHUR AND GTE MOBILNET OF SOUTH TEXAS LIMITED PARTNERSHIP DBA VERIZON WIRELESS OF BASKING RIDGE, NEW JERSEY TO INSTALL, MAINTAIN, AND OPERATE THE RADIO COMMUNICATIONS EQUIPMENT, ANTENNAS, AND APPURTENANCES AT THE WATER TOWER AT 1440 TERMINAL ROAD, PROVIDING AN ADDITIONAL SOURCE OF REVENUE. WHEREAS, the Utilities Department desires to enter into a Communication Facilities Lease Agreement, in substantially the same form as Exhibit "A", with the GTE Mobilnet of South Texas Limited Partnership, DBA Verizon Wireless of Basking Ridge,New Jersey in order to install, maintain, and operate the radio communications equipment, antennas, and appurtenances at the water tower at 1440 Terminal Road; and, WHEREAS, the City Council hereby authorizes the City Manager to execute the Service Agreement between GTE Mobilnet of South Texas Limited Partnership, DBA Verizon Wireless of Basking Ridge, New Jersey and the City of Port Arthur, in substantially the same form as Exhibit "A" attached hereto and made a part hereof; and, WHEREAS, GTE Mobilnet of South Texas Limited Partnership, DBA Verizon Wireless of Basking Ridge, New Jersey will pay the City of Port Arthur the amount of$2,300.00 per month. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Manager is authorized to execute the Communication Facilities Lease Agreement, in substantially the same form as attached hereto as Exhibit"A". Section 3. That a copy of the caption of this Resolution be spread upon the minutes of the City Council. P. R. No. 20780 Page 2 of 2 4/4/19ds READ, ADOPTED, AND APPROVED this day of , 2019, at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following vote: AYES: Mayor: Councilmembers: NOES: Derrick Freeman Mayor ATTEST: Sherri Bellard City Secretary APPROVED AS TO FORM: APPROVED FOR ADMINISTRATION: 'i/ 4 h •!fo- al ►1Pno Harvey Robinson City �torney Interim City Manager Donald Stanton Rebecca Underhill, CPA Interim Director of Water Utilities Director of Finance EXHIBIT A THE STATE OF TEXAS COUNTY OF JEFFERSON KNOW ALL MEN BY THESE PRESENTS: COMMUNICATIONS FACILITIES LEASE AGREEMENT This Communications Facilities Lease Agreement ("Agreement") is made by and between the City of Port Arthur(hereinafter referred to as the "CITY" or "LESSOR") and GTE Mobilnet of South Texas Limited Partnership d/b/a Verizon Wireless, with its principal offices at One Verizon Way, Mail Stop 4AW 100, Basking Ridge,New Jersey 07920 (telephone number 866- 862-4404), hereinafter designated LESSEE. LESSOR and LESSEE are at times collectively referred to hereinafter as the "Parties"or individually as the "Party". WITNESSETH: WHEREAS, CITY desires to provide LESSEE with ground and tower space on CITY's water tower("TOWER") for housing and operating certain communications equipment, including the installation of antennas or antenna systems and the space required to run cable between the equipment and the antenna or antenna systems; and WHEREAS, CITY owns the premises and facilities described below and desires to allow LESSEE to enter and utilize designated areas of the facilities and premises; NOW, THEREFORE, for the consideration and on the terms and conditions hereinafter set forth, the parties agree as follows: Location 1. The ground and tower space (the " PREMISES") leased by CITY to LESSEE hereunder are described in the SITE PLAN, a copy of which is attached hereto and incorporated herein as Appendix "A". LESSEE shall be permitted to install, maintain, operate, repair and remove LESSEE's"Equipment Compound" and the Antenna Facilities, as defined herein and associated cabling, wires,poles, conduits, and pipes over and through the CITY's property between the Antenna Facilities and the Equipment Compound and to designated sources of electrical and telephone/fiber utilities on the property. As used herein, the term "Equipment Compound" located upon the "Premises" means all ground equipment, shelters and similar structures identified as such on Appendix "A" , LESSEE's SITE PLAN. The lease authorized under the terms of this Agreement shall be a lease for the use of that portion of the PREMISES designated for use by LESSEE on the SITE PLAN._ Equipment 2. CITY agrees to allow installment of LESSEE's equipment and/or improvements as described and illustrated in appendix "A" (also referred to as the "SITE PLAN"), which is attached 1 hereto, and incorporated herein, in accordance with the terms of this Agreement. LESSEE's use shall be for the purpose of the installation operation, and maintenance of its Antenna Facilities and Equipment Compound, as defined in the SITE PLAN, for the transmission,reception, and operation of a communications system and uses incidental thereto. Term 3.1 This Agreement shall be for an initial term of five (5) years, commencing based upon the date that LESSEE commences installation of its equipment onto the PREMISES ("Effective Date"). In the event the date LESSEE commences installation of the equipment on the Premises falls between the 1st and 15th of the month, the Agreement shall commence on the 1St of that month and if the date installation commences falls between the 16th and 31st of the month,then the Agreement shall commence on the 1st day of the following month(either the"Effective Date"). LESSOR and LESSEE agree that they shall acknowledge in writing the Effective Date. This Agreement will renew for the number of renewal terms, and in accordance with the terms of, Paragraph 4 herein. LESSEE shall have the right to terminate this Agreement, without further liability hereunder, by giving thirty (30) days written notice to CITY of such termination if LESSEE is unable to obtain or retain all licenses and permits or authorizations required by LESSEE for use of the PREMISES from all applicable government and/or regulatory entities (the "Governmental Approvals" ) for LESSEE's intended use of and improvements to the PREMISES, or if LESSEE, for any other reason, in its sole discretion, determines it will be unable to use the PREMISES. 3.2 Notwithstanding any language to the contrary contained herein, LESSEE shall have the right to terminate this Agreement, at any time without further liability hereunder, with one year's prior written notice to the CITY. Renewal Terms 4. This Agreement may be extended by LESSEE for up to five (5) additional five (5) year renewal terms provided that LESSEE notifies LESSOR in writing of LESSEE's desire to renew the Agreement for an additional five (5) year term at least sixty (60) days prior to the expiration of the then-current five (5) year term. All the terms and covenants of this Agreement apply to all extension periods subject to amendment by the mutual agreement of the parties, in writing signed both parties. At the expiration of all of the extension periods provided herein, unless renewed or superseded,this Agreement shall continue from month to month under the terms and conditions set forth herein, and it may be terminated by either party upon at least thirty (30)days written notice to the other party. Termination 5. 1 Termination for Cause. Upon the occurrence of any one or more of the events listed below (hereinafter an "Event of Default),or as provided elsewhere in this Agreement,the non-defaulting Party may,without penalty, at its option and without prejudice to any other remedy to which it may be entitled at law or equity, or otherwise under this Agreement,terminate this Agreement(and 2 the use or occupancy under this Agreement)in the event the Event of Default is not cured within the cure periods specified in Paragraph 5.3 below. 5.2 Event of Default. The non-defaulting Party shall have the right to terminate this Agreement in accordance with Paragraph 5.1 above (in addition to pursuing any and all other remedies available under applicable law) upon the occurrence of any one or more of the following "Events of Default": a. In the event the defaulting Party violates any provision ofthis Agreement;or b. In the event that LESSEE fails to maintain the PREMISES in a neat and orderly condition in accordance with the terms of this Agreement. c. In the event LESSEE (a)terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute and fails to pay amounts due under this Agreement when due, (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority and fails to pay amounts due under this Agreement when due, or(d)has wound up or liquidated, voluntarily or otherwise. 5.3 Notice and Opportunity to Cure. Upon the occurrence of an Event of Default, a party shall deliver to the defaulting party a Notice of Default that identifies in detail the Event of Default. If the Event of Default remains uncured for thirty(30) days following the defaulting party's receipt of such notice,the non-defaulting party may terminate this Agreement and the rights granted herein by delivering to the defaulting party a Notice of Termination that identifies the effective date of the termination, which date shall not be less than sixty(60)days after the date of delivery of the Notice of Default.Provided, however, that the time periods for notice of termination specified in Section 5.3 shall not apply to a default pursuant to Section 5.2. 5.4 Primary Function of PREMISES. The parties understand and agree that the primary function of the PREMISES is to serve as a water tower for the City of Port Arthur and that the interests of LESSEE are superseded by the public health, safety and welfare of the citizens of Port Arthur served by the water tower. In the event that the Port Arthur City Council or the Port Arthur City Manager declares a public emergency or if there exists a threat to the water tower facilities or potable water supply that would detrimentally impact public health, safety and welfare such that immediate action is necessary, LESSEE shall within 48 hours of notice from the City temporarily remove its improvements from the PREMISES to the extent reasonably required to address the public emergency or threat. In the event IMMEDIATE removal is required,the City will contact LESSEE at [phone number and email address to be added] and arrange for LESSEE to promptly remove LESSEE's improvements to the extent reasonably required to address the public emergency or threat. Costs of removal and reattachment of improvements associated with a public emergency or threat shall be borne by LESSEE. 3 5.5 Temporary Removal of Improvements. If LESSEE's improvements must be temporarily removed,whether such removal is done pursuant to Section 5.4 above or Section 6 of this Agreement, LESSEE shall have the right to set up a portable mounted antenna, a cell on wheels (COW), and/or some other similar temporary structure approved by CITY, on CITY premises to allow LESSEE to continue to provide commercial mobile radio service and other communications services expressly permitted by this Agreement. The right to use a COW or other temporary structure shall include the right to install and maintain conduits, pipes, cables and wires as necessary to supply utility service and power to the COW or as otherwise needed to service the COW as reasonably determined by LESSEE. LESSEE may maintain its COW for the duration of the period during which LESSEE is unable to use its leased tower and/or ground space. CITY'S Right of Entry onto Tower 6. CITY and CITY's contractors may enter upon the Tower for the purposes of performing repairs and maintenance work to the Tower. If maintenance work is required, CITY agrees to provide LESSEE with reasonable notice being no less than forty-five (45) days, prior to commencing such work to allow LESSEE to remove (or take other protective measures related to) any and all tower improvements made by LESSEE. Decisions as to the extent to which LESSEE will be required to remove such improvements shall be within the reasonable discretion of CITY. If, however, in the reasonable discretion of CITY, repair or maintenance requires immediate action on the part of CITY, CITY will take the steps identified in Paragraph 5.4 above. LESSEE, at its expense and exclusive use, may use any and all reasonable and appropriate means of restricting access to the LESSEE's equipment shelter/ground equipment, as identified in the SITE PLAN. Notwithstanding any provision of this Agreement to the contrary, LESSEE shall not be responsible for the costs associated with more than one(1)temporary relocation pursuant to this Paragraph 6 every ten (10) years during the Term. To the extent additional temporary relocations are reasonably required during the Term,LESSOR shall be responsible for the all reasonable costs associated with such subsequent temporary relocations and reinstallations of LESSEE's equipment. Use of Premises 7.1 The use of the PREMISES by LESSEE in conjunction with the terms of this Agreement is to be for the installation,operation and maintenance of communications equipment in strict compliance with this Agreement and the attached SITE PLAN(Appendix "A"). The LESSEE may not sublet to or license others to use the PREMISES or LESSEE's facilities, except in accordance with Paragraphs 29.01 and 29.02 of this Agreement. Any such attempt by LESSEE shall be without effect and may at CITY's option result in the termination of this Agreement. 7.2 LESSEE may update, maintain, repair, or replace its equipment located upon the PREMISES from time to time,provided that LESSEE's equipment on the Tower is not greater in number or size than LESSEE's permitted tower equipment. Furthermore, prior written approval must be obtained from CITY before any change in the location of LESSEE's leased ground or tower space on the PREMISES or an installation of tower equipment not permitted by the previous sentence.. LESSEE shall submit to CITY, a detailed proposal for any such changes for which 4 CITY's consent is required and any supplemental materials as may be reasonably requested, for CITY's evaluation and written approval. CITY agrees that such approval will not be unreasonably withheld, conditioned or delayed. A current and accurate SITE PLAN must be submitted to CITY by LESSEE and maintained on file with CITY for the entire term of this Agreement and all renewals thereof. Payment Terms and Conditions 8. In consideration for providing the PREMISES for use by LESSEE,the LESSEE shall pay rental fees to CITY in equal monthly installments beginning on the Effective Date. LESSOR and LESSEE acknowledge and agree that initial rental payment(s) shall not actually be sent by LESSEE until sixty(60) days after a written acknowledgement confirming the Effective Date. Thereafter, payments will be due on the first date of each month in advance throughout the initial term and all renewals,prorated for any partial year. Payment Terms and Conditions are more specifically described on Appendix "B", a copy of which is attached hereto and incorporated herein for all purposes. If this Agreement is terminated at a time other than the last day of the calendar year of the term for any reason other than a default by the LESSEE, all rental fees shall be prorated as of the date of the termination and all prepaid rental fees shall be refunded to LESSEE. Access 9. LESSEE shall have the non-exclusive right of ingress and egress to and from the aforementioned PREMISES at any time, by contacting and providing notice to CITY at the following address: Port Arthur City Manager,444 4th Street,Port Arthur, TX 77640 and phone number(409)983- 8102. [add contact email address and phone number].CITY shall have the option to have City personnel accompany LESSEE when accessing the PREMISES. If CITY is contacted by LESSEE after the normal business hours of CITY, for the purpose of accessing the aforementioned location, LESSEE agrees to reimburse CITY for the reasonable actual cost of any City staff involvement necessary for this access. Notwithstanding the foregoing, LESSEE shall have exclusive right to access its Equipment compound within the leased ground space located upon the Premises at any time without notifying the CITY. Damages to Property 10. LESSEE shall immediately notify CITY of any and all damages resulting from, arising out of, or caused to the PREMISES and CITY property surrounding the PREMISES, including but not limited to structural damages, electrical damages, damages to fencing, irrigation systems or landscaping by LESSEE's operations, by LESSEE, its officers, agents, employees and invitees. To the extent caused by LESSEE or LESSEE's officers, agents, employees or invitees, LESSEE shall be responsible for the costs and the repair of all such damages and such repairs and/or replacements shall be completed in a timely manner acceptable to CITY. 5 Electrical,Radio and Intermodulation Interference 11.1 LESSEE shall not cause electrical,radio or intermodulation interference to the equipment ofthe CITY or to any other licensee installed at the PREMISES prior to the time of LESSEE's installation of its equipment. Should such interference occur,LESSEE will promptly take all steps necessary to correct such interference within ten(10)days notice of the problem and, if such interference cannot be eliminated within thirty(30)days of such notice,LESSEE shall shut down the LESSEE equipment causing interference (except for intermittent testing)at the site while the interference problems are studied and a means to eliminate the problem is found. If the interference complained of cannot be eliminated,LESSEE will remove the interfering equipment or, at LESSEE's option, terminate this Agreement. 11.2 CITY will not grant a license to any other party for the use of CITY's property without including in that license a provision stating that the party's use will not in any way adversely affect or interfere with LESSEE's signal operation or its communication system. Furthermore, license agreements with third parties will state that prior to installation of improvements, such third parties shall be required to conduct interference testing of its equipment and the equipment of LESSEE to check potential interference between third party equipment and LESSEE'S EQUIPMENT. LESSEE shall have the right to terminate this Agreement upon ten (10) days written notice to CITY if another user of the facilities causes material interference with LESSEE's operations, and such interference is not corrected within thirty(30)days following the notice to such interference is not corrected with thirty(30) days following the notice to such third party user causing the interference. 11.3 The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Article 11 and therefore, either Party shall have the right to equitable remedies, such as without limitation, injunctive relief and specific performance. 11.4 LESSEE shall have the sole burden of, and be responsible for all costs associated with, alleging and proving that another user of the PREMISES is causing significant interference, as well as for otherwise enforcing LESSEE's rights under this Agreement. CITY shall not be responsible for the costs associated with the resolution of any dispute between users of the PREMISES, or enforcement of any of LESSEE's rights under this Agreement.Notwithstanding the foregoing, CITY agrees to enforce the terms of its agreements with other third parties using the subject property, including other third party communications tenants, and CITY shall be responsible for the costs of enforcing the terms of such agreements. 11.5 Upon report to LESSEE, and all other third parties with communications equipment on that CITY-owned property, of interference with any CITY-owned/operated radio emergency system, LESSEE shall within twenty-four(24) hours after such notification, perform an assessment of the source of the interference. In the event such interference results from LESSEE's operations, LESSEE agrees, within forty-eight(48) hours of first notification,to propose a plan of action to eliminate the interference. CITY and LESSEE agree to provide a technician or other qualified representative to assist in testing, formulating and coordination of a plan for resolution. If such interference results from LESSEE's operations, LESSEE must correct the interference within seventy-two (72) hours of CITY's original notification to LESSEE or shall discontinue all use 6 of interfering equipment until such interference is resolved. Except for intermittent testing, LESSEE's equipment that is causing such interference cannot be reactivated until LESSEE can demonstrate that the cause of the interference has been eliminated. Each party agrees to provide the other with a telephone number through which that party can contact a representative of the other on a 24-hour per day,7 days a week basis for the purpose of effectuating the requirements of this paragraph. Initially,the following contact information shall be applicable: LESSEE: 800-621-2622 (together with an email to SOHGCPropertyManagement@verizonwireless.com ; LESSOR: 12. Intentionally Omitted. Utility Easements and Utility Cost 13. LESSEE will be responsible for and all costs associated with electrical hookup, maintenance and service, which is due to LESSEE's operations at the PREMISES. CITY shall provide and grant to LESSEE any easements necessary(in LESSEE's reasonable discretion)for the provision of electric and telephone/fiber hook up and service to this PREMISES and LESSEE's equipment. Taxes 14. LESSEE agrees to reimburse CITY for all real property taxes which are assessed against CITY and directly attributable to LESSEE's equipment or use of the PREMISES. LESSEE is also responsible for personal property taxes assessed against improvements constructed or maintained by LESSEE on or about the PREMISES. CITY shall use its best efforts to provide prior notification of any taxes for which LESSEE is to be charged, so LESSEE will have the opportunity to appear before the taxing authority and contest any assessment. Liability and Indemnification 15.1 LESSEE shall at all times comply with all applicable laws and ordinances and all applicable rules and regulations of municipal, state and federal government authorities relating to the installation, maintenance, height, location, use, operation, and removal of LESSEE's equipment, antenna systems, and other LESSEE improvements authorized herein, and shall fully release, defend, indemnify and hold harmless CITY, its officers, officials, agents, servants or employees (collectively "CITY") against any and all claims, damages, lawsuits, losses, costs, or expenses which may be sustained or incurred by CITY, its officers, officials, agents, servants or employees as a result of LESSEE's installation, operation, or removal of such improvements, except to the extent caused by the negligence or willful misconduct of CITY, its officers, officials, agents, servants or employees. It is the intention of the parties that where such claims, damages, lawsuits, losses, costs or expenses are caused by the combined negligence or combined willful misconduct of both parties hereto, each party shall be responsible for its proportionate share of costs incurred. 15.2 Except as otherwise provided in this Agreement, LESSEE undertakes and assumes for its officers, agents, employees, servants, affiliates, contractors and subcontractors, all risk of dangerous conditions, if any, on or about the PREMISES and LESSEE hereby agrees to release, 7 defend, indemnity and hold harmless CITY, its officers, officials, agents, servants and employees against and from any claim asserted or liability imposed upon CITY, its officers, officials, agents, servants and employees for personal injury or property damage to any person arising out of LESSEE's installation operation, maintenance, condition or use of the PREMISES or LESSEE's facilities or LESSEE's failure to comply with any applicable federal, state or local statute, ordinance or regulation, except to the extent caused by the negligence or willful misconduct of CITY, its officers, officials, agents, servants, or employees. 15.3 LESSEE represents that its use of the PREMISES herein will not generate any hazardous substance, and it will not store or dispose of, nor transport to or over the PREMISES any hazardous substance, in violation of any applicable statute, regulation or ordinance. LESSEE further agrees to release, defend, indemnify, and hold CITY, its officers, officials, agents, servants and employees harmless from and against only damage, loss, or expense or liability resulting front the generating, releasing, storage or disposal of such hazardous substances brought onto the Premises by LESSEE, including all attorneys' fees, costs and penalties incurred as a result thereof. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material , hazardous or toxic or radioactive substance,or other similar toxin by any federal,state or local environmental law,regulation,or rule presently in effect or promulgated in the future,as such laws,regulations or rules may be amended from time to time; and it shall be interpreted to include,but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness,death,or disease. LESSEE shall not be responsible for any environmental condition, including the release of hazardous substances to the extent that such condition existed on the execution date of this Agreement or to the extent not caused by the activities of LESSEE. 15.4 LESSOR will be responsible for all obligations of 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 conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Tower or subject property, unless such conditions or concerns are caused by the specific activities of LESSEE in the Premises. 15.5 Neither Party shall be liable to the other, or any of their respective agents,representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort(including negligence), strict liability or otherwise. Insurance 16. LESSEE shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension or renewal thereof, at LESSEE's sole expense, liability insurance and workers' compensation insurance,and a certificate of insurance shall be submitted to and approved by CITY prior to the commencement of any performance under this Agreement. LESSEE must provide insurance in compliance with Appendix"C",attached hereto and incorporated herein for all purposes. 8 Condition of Premises 17.1 CITY shall maintain the PREMISES in compliance with all applicable statutes,ordinances, regulations and rules required for CITY uses of the PREMISES and surrounding property,and in a manner which will not interfere with LESSEE's permitted use of the PREMISES. Upon expiration, or within 90 days of earlier cancellation, or termination of this Agreement,LES SEE will have the right to remove its equipment, antenna systems, fixtures and structures from the PREMISES at LESSEE's cost and expense. LESSOR agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of LESSEE shall remain the personal property of LESSEE and LESSEE shall have the right to remove the same at any time during the Term, whether or not said items are considered fixtures and attachments to real property under applicable Laws. Title to all such equipment, fixtures and structures not removed by LESSEE in accordance with this Agreement following the expiration/termination of this Agreement and notice to LESSEE shall belong to CITY. However, upon vacation of this site, LESSEE shall surrender the PREMISES in substantially the same condition as received, except for ordinary wear and tear and casualty damage not caused by LESSEE. If, as reasonably determined by CITY,the PREMISES are not surrendered in satisfactory condition,CITY shall notify LESSEE and LESSEE shall restore the PREMISES as required by this Agreement 17.2 LESSEE shall have sole responsibility for the maintenance,repair,and security of its equipment,personal property,antenna facilities,and leasehold improvements,and shall keep same in good repair and condition during the term and all renewals of this Agreement. 17.3 LESSEE shall keep the Premises free of debris and anything reasonably determined to be of a dangerous,noxious,or offensive nature or which would create a hazard or undue vibration,heat,noise, or interference. The Parties acknowledge that LESSEE's permitted use of the PREMISES is deemed not to be a violation of this provision. 17.4 By taking possession of the PREMISES, LESSEE accepts the PREMISES in the condition existing as of the effective date. Except as otherwise provided herein, CITY makes no representation or warranty with respect to the condition of the PREMISES and CITY shall not be liable for any latent or patent defect in the PREMISES. CITY agrees to notify LESSEE of the existence of any latent defects of which the CITY has knowledge. Notice 18. All notices to the parties shall be in writing and shall be sent by certified or registered mail, hand delivered,or by commercial courier,provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender to the respective representatives for the parties as designated below: 9 CITY LESSEE CITY OF PORT ARTHUR GTE MOBILNET OF SOUTH TEXAS City Manager LIMITED PARTNERSHIP 444 4th Street D/B/A VERIZON WIRELESS P. O. Box 1089 One Verizon Way Port Arthur, Texas 77640 Mail Stop 4AW100 Basking Ridge,New Jersey 07920 Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. Tower, Compliance, Marking and Lighting Requirements 19. LESSOR covenants that it will keep the Tower in good repair as required by all applicable laws. The LESSOR shall also comply with all rules and regulations enforced by the Federal Communications Commission with regard to the lighting, marking and painting of towers. If the LESSOR fails to make such repairs including maintenance the LESSEE may make the repairs and the costs thereof shall be payable to the LESSEE by the LESSOR on demand together with interest thereon from the date of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate permitted by applicable Laws. If the LESSOR does not make payment to the LESSEE within ten (10) days after such demand, the LESSEE shall have the right to deduct the costs of the repairs from the succeeding monthly rental amounts normally due from the LESSEE to the LESSOR. Not later than fifteen (15) days following the execution of this Agreement, LESSOR shall supply to LESSEE copies of all structural analysis reports that have done with respect to the Tower and throughout the Term, LESSOR shall supply to LESSEE copies of all structural analysis reports that are done with respect to the Tower promptly after the completion of the same. Site Plan 20. The SITE PLAN (attached as"Appendix A")must be approved by CITY prior to the execution of this Agreement,with approval or disapproval not to be unreasonably delayed or withheld. CITY's approval of the Site Plan shall be indicated by the inclusion of such Site Plan in this fully executed Agreement. The SITE PLAN shall describe and illustrate the location of the equipment, fixtures, antennas, cables, wiring and other structures to be installed, maintained and operated under this Agreement. The SITE PLAN shall include a scale drawing and inventory analysis of the proposed installations, as well as an elevation of the PREMISES with the proposed installations. Performance under this Agreement shall be in strict compliance with the SITE PLAN and as may otherwise be approved by LESSOR or permitted under this Agreement. If LESSEE's installation, maintenance, operation of equipment, fixtures, antennas, cables, wiring or other structures fail to comply with the approved SITE PLAN, at any time, as reasonably determined by CITY,then CITY shall have the right to terminate this Agreement following notice to LESSEE if LESSEE does not timely cure the issue as provided under Section 5.03 herein. 10 Modifications 21. LESSEE's operations and all CITY approved modifications to the PREMISES must at all times comply with the terms of this Agreement, all applicable federal, state and local laws and ordinances and all amendments thereto. Entire Agreement 22. This Agreement,together with all Appendices attached hereto and incorporated herein constitutes the entire agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written agreement between the parties that in any manner relates to the subject matter of this Agreement. LESSOR agrees to execute a Memorandum of this Agreement, which LESSEE may record with the appropriate recording officer. Capacity 23. Both LESSEE and CITY represent that they have full capacity and authority to grant all rights and assume all obligations they have granted and assumed under this Agreement. Governing Law 24. The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties, shall be governed by the laws of the State of Texas, and exclusive venue for any action concerning this Agreement shall be in Jefferson County, Texas Amendment 25. This Agreement may only be amended by the mutual written agreement signed by the parties hereto. Legal Construction; Severability 26. In the event that any one or more of the provisions contained in the Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. Nonwaiver 27. No right or remedy granted herein or reserved to the parties is exclusive of any right or remedy herein by law or equity provided or permitted; but each shall be cumulative of every right or remedy given hereunder. No covenant or conditions of this Agreement may be waived without consent of the parties. It is further agreed that one (1) or more instances of forbearance by either Party in the exercise of its rights herein shall in no way constitute a waiver thereof. 11 Landlord/Tenant 28. LESSOR and LESSEE covenants and agrees that the relationship of the parties is that of landlord and tenant. Successors and Assigns 29.1 CITY and LESSEE each bind themselves,their successors, executors, administrators and assigns to the other party to this Agreement.Neither CITY nor LESSEE will assign, sublet, subcontract or transfer any interest in this Agreement without the written consent of the other party. No assignment, delegation of duties or subcontract under this Agreement will be effective without the written consent of CITY. LESSEE shall not assign, sublet, subcontract,transfer or allow the use of any interest in the PREMISES or any use of LESSEE's facilities, including but not limited to equipment, lines or frequencies, on the PREMISES without the prior written consent of CITY. CITY's consent may be conditioned upon LESSEE successfully obtained contracts from such third parties wherein those parties agree to directly compensate CITY for all benefits incurred by the use of the PREMISES. 29.2 LESSEE may assign this Agreement to LESSEE's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of LESSEE's assets in the market defined by the Federal Communications Commission in which the Premises is located by reason of a merger, acquisition or other business reorganization. No change of stock ownership, partnership interest or control of LESSEE or transfer upon partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder. Applicable Laws 30. This Agreement is entered into subject to the charter and ordinances of CITY as they may be amended from time to time, and is subject to and is to be construed, governed and enforced under all applicable federal and state laws. Both Parties agree to comply with all applicable federal, state and local law. 31. Intentionally omitted. 32. Intentionally omitted. Subordination to Mortgage 33. Any mortgage now or subsequently placed upon any property of which the PREMISES are a part shall be deemed to be prior in time and senior to the rights of the LESSEE under this Agreement. LESSEE subordinates all of its interest in the PREMISES created by this Agreement to the lien of any such mortgage. However, as a condition to the subordination of LESSEE's interest pursuant to this paragraph, CITY shall obtain, for LESSEE's benefit a non-disturbance and attornment agreement in a form reasonably satisfactory to LESSEE. 12 Rental Documentation 34. For any party to whom rental payments are to be made, LESSOR or any successor in interest of LESSOR hereby agrees to provide to LESSEE (i) a completed, current version of Internal Revenue Service Form W-9, or equivalent; (ii) complete and fully executed state and local withholding forms if required; and (iii) other documentation to verify LESSOR's or such other party's right to receive rental as is reasonably requested by LESSEE. Rental shall accrue in accordance with this Agreement, but LESSEE shall have no obligation to deliver rental payments until the requested documentation has been received by LESSEE. Upon receipt of the requested documentation, LESSEE shall deliver the accrued rental payments as directed by LESSOR. Grant of Communications Interest 35. If LESSOR elects, during the Term, to grant to a third party by easement or other legal instrument an interest in and to LESSEE'S Premises, as depicted on Appendix A attached hereto, for the purpose of operating and maintaining communications facilities or the management thereof, with or without an assignment of this Agreement to such third party, LESSEE shall have the right of first refusal to meet any bona fide offer of sale or transfer on the same terms and conditions of such offer. If LESSEE fails to meet such bona fide offer within thirty (30) days after written notice thereof from LESSOR, LESSOR may sell or grant the easement or interest in the Tower and/or Premises to such third person in accordance with the terms and conditions of such third party offer. The Parties agree and acknowledge that this paragraph does not affect the LESSOR's right to lease other portions of LESSOR's Tower and surrounding property (excluding LESSEE's Premises) to other wireless communications carriers. Most Favored Lessee 36. LESSOR represents and warrants that the rent, benefits and terms and conditions granted to LESSEE by LESSOR hereunder are now and shall be, during the Term, no less favorable than the rent, benefits and terms and conditions for substantially the same or similar tenancies or licenses granted by LESSOR to other parties. If at any time during the Term LESSOR shall offer more favorable rent, benefits or terms and conditions for substantially the same or similar tenancies or licenses as those granted hereunder, then LESSOR shall, within 30 days after the effective date of such offering, notify LESSEE of such fact and offer LESSEE the more favorable offering. If LESSEE chooses,the parties shall then enter into an amendment that shall be effective retroactively to the effective date of the more favorable offering, and shall provide the same rent, benefits or terms and conditions to LESSEE. LESSEE shall have the right to decline to accept the offering. LESSOR's compliance with this requirement shall be subject, at LESSEE's option,to independent verification. Casualty and Condemnation 37. If a fire or other casualty damages the Tower or Premises and impairs LESSEE's use, rent shall abate until LESSEE'S use is restored. If LESSEE's use is not restored within 45 days, LESSEE may terminate this Agreement. If a condemnation of any portion of the property or Premises impairs LESSEE's use, LESSEE may terminate this Agreement. LESSEE may on its own behalf make a claim in any condemnation proceeding involving the Premises for losses related to LESSEE's 13 communications equipment, relocation costs and, specifically excluding loss of LESSEE's leasehold interest, any other damages LESSEE may incur as a result of any such condemnation. Contract Interpretation 38. Both parties have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation of this Agreement. Signed on the day of . 2019. GTE Mobilnet of South Texas Limited Partnership d/b/a Verizon Wireless WITNESSED BY: By: San Antonio MTA, L.P., its general partner By: Verizon Wireless Texas, LLC, its general partner BY: Name: Title: Signed on the day of , 2019. CITY OF PORT ARTHUR,TEXAS: ATTEST: BY: Harvey Robinson Interim City Manager P.O. Box 1089 Port Arthur, TX 77641 City Secretary 14 APPENDIX "B" PAYMENT TERMS AND CONDITIONS Rental fees shall commence to accrue and shall be due and payable on the Effective Date of this Agreement, as defined herein. Such fees shall be payable by check and/or electronic funds transfer, at the place designated herein for the delivery of notices to the City, without demand , set-off deduction, for any reasons whatsoever, except as otherwise provided herein. Payment during the initial five (5) year term shall be made in the amount of TWENTY THREE HUNDRED DOLLARS ($2,300.00) per month for a total of TWENTY SEVEN THOUSAND SIX HUNDRED DOLLARS ($27,600.00) annually. The annual rent for each five (5) year renewal term shall increase ten percent (10%) over the annual rent due for the immediately preceding five (5) year term. Payments made after the first year of the Agreement term and for all subsequent renewals shall be due and payable as specified herein, beginning on or before the anniversary date of the Effective Date of this Agreement. Mailing Address for Rental Check Payments: City of Port Arthur Accounts Receivable PO Box 1089 Port Arthur, TX 77641-1089 Electronic Fund Transfer Arrangements to be arranged with the City of Port Arthur Financial Department. APPENDIX "C" Insurance Requirements a. The Parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or to the Property, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. These waivers and releases shall apply between the Parties and they shall also apply to any claims under or through either Party as a result of any asserted right of subrogation. All such policies of insurance obtained by either Party concerning the Premises or the Property shall waive the insurer's right of subrogation against the other Party. b. LESSEE will maintain at its own cost; i. Commercial General Liability insurance with limits of $1,000,000 for bodily injury(including death) and for property damage each occurrence ii. Commercial Auto Liability insurance on all owned, non-owned and hired automobiles with a combined limit of$1,000,000 each accident iii. Workers Compensation insurance providing the statutory benefits and Employers Liability of$1,000,000 each accident/disease/policy limit. LESSEE will include LESSOR as an additional insured as their interests may appear under this Agreement on the Commercial General Liability and Auto Liability policies. c. LESSOR will maintain at its own cost commercial general liability insurance with limits not less than $1,000,000 for injury to or death of one or more persons in any one occurrence and $500,000 for damage or destruction to property in any one occurrence. LESSOR will include the LESSEE as an additional insured. d. In addition, LESSOR shall obtain and keep in force during the Term a policy or policies insuring against loss or damage to the Tower with a commercially reasonable valuation, as the same shall exist from time to time without a coinsurance feature. LESSOR's policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and earthquake unless required by a lender or included in the base premium), including coverage for any additional costs resulting from debris removal and reasonable amounts of coverage for the enforcement of any ordinance or law regulating the reconstruction or replacement of any undamaged sections of the Tower required to be demolished or removed by reason of the enforcement of any building, zoning, safety or land use laws as the result of a covered loss, but not including plate glass insurance.