R2010-018 - 2010-02-08 RESOLUTION NO. R2010 -18
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
ENTER INTO TWO (2) LICENSE AGREEMENTS WITH CLEAR
WIRELESS, LLC.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain License Agreements by and between the City of Pearland
and Clear Wireless, LLC, a copies of which are attached hereto as Exhibits "A" and "B"
and made a part hereof for all purposes, are hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and, the City Secretary to attest two (2) License Agreements with Clear Wireless, LLC.
PASSED, APPROVED and ADOPTED this the 8 day of bruary, A.D., 2010.
•=3(.44
TOM REID
MAYOR
ATTEST:
YANG i.'G :MC/ F
SEI ETARY
APPROVED AS TO FORM:
L
DARRIN M. COKER-
CITY ATTORNEY
`TX o VoS S _‘-1
Exhibit "A"
Resolution No. R2010 -18
LICENSE AGREEMENT
This License Agreement "License is between THE CITY OF PEARLAND, TEXAS
"City and CLEAR WIRELESS LLC, a Nevada limited liability company "Clear Wireless
Recitals:
Clear Wireless has requested and the City has agreed to allow Clear Wireless by license to use
the City's water tank site located in the City of Pearland, Brazoria County, Texas, to operate a
communication transmission facility.
Agreement:
In consideration of the promises of each, the City and Clear Wireless agree as follows:
A. Definitions. In this License:
Antenna Facility means a communications facility consisting of antennae and associated
cabling and equipment as more particularly described in this License and as shown in Exhibit A.
Authorized Personnel means employees, engineers, technicians or agents of Clear
Wireless (or persons or entities under direct supervision thereof) who either: (1) carry an
identification badge identifying them as employees or agents of Clear Wireless; or (2) are
employees, engineers, agents or technicians acting on Clear Wireless' behalf.
City means the City of Pearland, a municipal corporation.
Effective Date (of this License) means the latest date of the dates this License is signed by
the City and by Clear Wireless.
License means the rights granted to and obligations imposed upon Clear Wireless under
this License.
Licensed Premises means the real property owned by the City as described in Exhibit A,
attached to and incorporated to this License by reference, together with the space on the Water
Tank being licensed to Clear Wireless by City.
Clear Wireless means Clear Wireless LLC, a Nevada limited liability company.
Water Tank means the City's potable water storage tank located on the Licensed
Premises.
B. USE OF LICENSED PREMISES.
1. The Licensed Premises are licensed to Clear Wireless as a site for Clear Wireless
to erect, construct, operate, maintain, repair, and replace an Antenna Facility.
2. (See Exhibit A) pairs of antennae will be placed on the Water Tower and oriented,
respectively, at approximately 0, 120, 240 degree azimuths, in line with Clear Wireless' network
requirements for antenna orientation. The antennae will be connected to the radio equipment
with coaxial cable running from the radio equipment to each of the three antennae footprints. The
radio equipment will be supplied with a power and telephone service by lines connected to the
power or telephone cables existing on or adjacent to the Licensed Premises.
3. Clear Wireless will comply with any reasonable rules and regulations related to
City's compliance with FAA laws and regulations.
4. If Clear Wireless places any item on the Licensed Premises that is not authorized
under this License and does not remove such item after 30 days written notice to Clear Wireless,
then the City may remove the item without liability to Clear Wireless for damage caused by the
City's removal.
5. Clear Wireless and its Authorized Personnel may access the Licensed Premises
for the purpose of maintenance, repair, replacement, and removal of the Antenna Facility at any
time, subject to the following:
(a) The City's reasonable security requirements;
(b) If Clear Wireless requires access outside of the City's normal business hours, Clear
Wireless will pay the City the reasonable costs it incurs in providing access;
(c) Clear Wireless will use its best efforts to contact the City no less than two (2) hours
prior to accessing the Licensed Premises;
(d) Clear Wireless will conduct its normal maintenance activities on the Licensed
Premises during the City's normal business hours; and
(e) Clear Wireless will furnish the City with a key or the combination or any lock
securing the site of Clear Wireless' equipment so the City may inspect Clear
Wireless' equipment at any time; provided, however, that in no event will City, its
employees, officers, or agents remove, relocate, modify, alter or otherwise tamper
with Clear Wireless' equipment.
6. All facilities Clear Wireless provides and installs on the Licensed Premises
remain the property of Clear Wireless and Clear Wireless may remove the same at any time
during or within 90 days after the termination of this License. Clear Wireless will continue to
pay the City License fees until Clear Wireless removes its property from the licensed Premises.
7. Clear Wireless will abide by all federal, state and local rules and regulations in
the operation of the Antenna Facility, including acquiring required licenses and permits.
8. The City's grant to Clear Wireless is a non exclusive License. The City may use
the Licensed Premises or allow any other person to use the Licensed Premises, other than Clear
Wireless' equipment compound, for any purpose that does not interfere with Clear Wireless'
rights granted under this License.
9. Clear Wireless may erect and operate the Antenna Facility in accordance with
Exhibit A. If Clear Wireless seeks to increase the number of antennas beyond the number
authorized herein, it must first pay for an evaluation carried out by a qualified professional
demonstrating that (i) each additional antenna will not interfere with the existing antennas and
that (ii) the City's Water Tank can structurally support the additional antennas. The cost of
evaluations required by this paragraph must be paid by Clear Wireless within thirty (30) days
after receiving written notice of the costs. If the City consents to the erection of additional
antennas, the parties will negotiate an additional license fee for Clear Wireless' use of the Water
Tank.
10. Upon commencement of this License, Clear Wireless shall deposit with the City
an amount equal to 25% of the first year's license fee, which shall be refunded to Clear Wireless
upon the timely removal of the Antenna Facilities, related equipment and the restoration of the
Licensed Premises to the reasonable satisfaction of the City. City may use the deposit to
complete work not done by Clear Wireless as required by this License Agreement, after notice of
default provided to Clear Wireless under Paragraph I below and Clear Wireless' failure to cure
such default within the notice period contemplated herein. If the deposit is not sufficient to cover
all costs, Clear Wireless must reimburse the City for additional costs, within ten (10) days after
City's written demand.
11. All modifications or improvements to the Licensed Premises for Clear Wireless'
benefit shall be at Clear Wireless' expense and such modifications or improvements shall be
maintained in a good state of repair. Clear Wireless' Antenna Facility shall, at all times, be
painted, at Clear Wireless' expense, the same color as the Water Tank.
If Clear Wireless interferes with the City's use of the Licensed Premises or the Water Tank Clear
Wireless agrees to cease all such actions that interfere with the City's use thereof no later than
five (5) days after receiving written notice of the interference from the City.
12. Upon the City's prior request, Clear Wireless will remove or relocate all or part of
the Antenna Facility from the Licensed Premises as may be necessary for the City to repair,
rehabilitate, replace, relocate, or maintain the Water Tower. The City will schedule regular, non
emergency maintenance, repair, or repainting as far in advance as is reasonably possibly and give
Clear Wireless at least 180 days advance written notice prior to the maintenance, repair, or
repainting to allow Clear Wireless to temporarily remove or relocate one or more of its antennae
and equipment. The City will use reasonable efforts to enable Clear Wireless to install and
operate a temporary site on the Licensed Premises which is suitable as a temporary site for Clear
Wireless until the antenna(e) and equipment affected by the temporary relocation can be
reinstalled at the original location.
13. If the City removes the Water Tank, the City will schedule the removal as far in
advance as possible and give Clear Wireless at least 120 days advance written notice to remove
its antennae and equipment. The City will use reasonable efforts to allow Clear Wireless to
relocate the antennae and equipment to other City property under a new agreement, with the same
terms and conditions as set forth herein, if the parties agree the new location is a suitable site. Upon
Clear Wireless' removal of its antennae and equipment from the Water Tank being removed, this
License terminates.
C. TERM. This License begins on the Effective Date and ends at 11:59 p.m. on the
day immediately preceding the tenth (10 anniversary of that date (the "Primary Term The
parties may extend this License for up to five successive five -year periods (the "Renewal
Periods as follows:
(1) At least 12 months before the expiration of the Primary Term or a Renewal
Period, as the case may be, Clear Wireless will notify the City in writing, in accordance with
Section 0, below, if it wishes to extend the License for One Renewal Period.
(2) If the City notifies Clear Wireless in writing, by registered or certified mail,
within 60 days of receiving Clear Wireless' request, that the City will not extend the License as
requested, the License terminates at the end of current Primary Term or Renewal Period, as the
case may be.
D. UTILITIES. Clear Wireless will, at its own expense, contract with a third party
provider for any electric, telephone, telecommunications, or similar utility services, and will be
responsible for the installation of any meters or associated equipment needed to serve its
Antenna Facilities on the Licensed Premises. Clear Wireless will obtain the City's prior approval
in writing of the location of any meters, lines, or associated electrical or utility equipment to be
located on the Licensed Premises that is not shown on Exhibit A. By approving the location of
any third party meters, lines, or associated equipment, the City grants an easement, at no
additional cost to Clear Wireless across the City's Licensed Premises for the purpose.
E. COMPLIANCE WITH LAWS. Clear Wireless will, at its expense, conduct all
operations on the Licensed Premises in compliance with all laws, ordinances, rules, regulations,
orders or directives of any government authority, and will not commit or allow to be committed
any public or private nuisance thereon.
F. WARRANTY. The City warrants that its title to the Licensed Premises is
sufficient for the City to grant this License to Clear Wireless for the purposes contained in this
License. The City also warrants to Clear Wireless that this License includes access to the
Licensed Premises by Clear Wireless, and that Clear Wireless may quietly enjoy the Licensed
Premises without disturbance except as provided for in this License.
G. LICENSE FEE.
1. Clear Wireless will pay to the City an annual license fee for the use of the
Licensed Premises. The license fee for the first year is $22,000.00. The annual license fee will
automatically increase each year by three percent (3 effective on each anniversary date of the
Effective Date.
2. Clear Wireless will pay the license fee to the City during the first calendar month
following the Effective Date, and each year thereafter during the same month of each year of the
Primary Term and any Renewal Period.
3. Clear Wireless will send or tender all license fee payments to the City at the
City's address specified in this License or other place as the City may designate upon 30 days
advance written notice to Clear Wireless. A change of ownership in the Licensed Premises is not
effective upon Clear Wireless until 30 days after the City notifies Clear Wireless of the change in
ownership.
4. After termination of the License, Clear Wireless will continue to pay to the City a
license fee until all of Clear Wireless' personal property is removed and any damages caused by
Clear Wireless to the Water Tank or Licensed Premises is repaired, normal wear and tear
excepted.
H. INTERFERENCE. Clearwire shall operate the Antenna Facility in compliance
with all Federal Communications Commission "FCC requirements including those
prohibiting interference to communications facilities of the City or other lessees or licensees of
the Water Tank or Leased Premises, provided that the installation and operation of any such
facilities predate the installation of the Antenna Facility. Subsequent to the installation of the
Antenna Facility, Citywill not permit its lessees or licensees to, install new equipment on or
make any alterations to the Water Tank, Leased Premises or property contiguous thereto owned
or controlled by the City if reliable evidence indicates such modifications are likely to cause
interference with Clear Wireless' operations. In the event interference occurs, the City agrees to
use best efforts to eliminate such interference in a reasonable time period.
I. TERMINATION WITHOUT DEFAULT.
1. Clear Wireless may terminate this License at any time by giving 30 days written
notice to the City of its intention to do so, after the expiration of the first five (5) years of the
Primary Term.
2. The City may terminate this License at any time after the Primary Term, by
giving Clear Wireless at least 180 days prior written notice of termination, if the City decides to
abandon, remove, relocate, or discontinue use of the Water Tower, or replaces the Water Tower
with another Water Tower. If the existing Water Tower is destroyed by fire, tornado, hurricane,
flood, wind, or other natural causes, and the City decides not to replace the Water Tower, this
License terminates on the date of destruction and the City may retain any license fees paid prior
to the date of destruction. If the City chooses to replace the destroyed Water Tower, the City
will notify Clear Wireless of the estimated date of replacement. If Clear Wireless does not
terminate the License by giving notice to the City prior to the date the Water Tower is replaced,
this License will remain in effect, but the next annual License Fee will be reduced and/or
prorated to account for the time the Water Tower was not available for use by Clear Wireless.
3. Any provision of this License that imposes an obligation upon Clear Wireless that
extends beyond the termination of this License, survives termination of this License.
J. TERMINATION FOR DEFAULT.
1. Either party may terminate this License as provided in this paragraph if the other
party fails to comply with a provision of this License. The party claiming a default by the other
party will give written notice specifying the default and what must be done to correct the default.
If the party receiving the notice fails to correct the default within 30 days of receiving the notice
of default, the other party may terminate this Licensee by providing notice of termination to the
other party.
2. If a claimed default cannot reasonably be cured within 30 days, the other party
will not be deemed to be in default if the other party promptly attempts to cure the default upon
receiving notice and thereafter cures the default within 60 days from receipt of the notice.
3. Notwithstanding anything to the contrary in this License, Clear Wireless' cure
period for any monetary default will be thirty (30) days after its receipt of written notice of such
default from the City.
K. ASSIGNABILITY.
1. Clear Wireless may not assign the License without the prior written consent of the
City unless the assignment is: (a) to an affiliate or subsidiary of Clear Wireless; (b) to Clear
Wireless' successor by operation of law or otherwise; (c) in connection with any public offering
of interests by Clear Wireless; or (d) to any affiliate or subsidiary or other party as may be
required in connection with any offering, merger, acquisition recognized security exchange or
financing. Upon acceptance of any assignment of this License (together with a copy of such
assignee's written assumption of Clear Wireless' obligations hereunder), the City will look
solely to the assignee for the satisfaction of Clear Wireless' obligations.
2. Clear Wireless may allow any other party to make use of Clear Wireless'
communication transmission facilities or equipment without consent of the City, but the use does
not release Clear Wireless from any of Clear Wireless' obligations under this License.
L. REMOVAL OF PROPERTY. Clear Wireless will, within 90 days after the
termination of this License:
1. Dismantle and remove all property and improvements placed by Clear Wireless on the
Licensed Premises or land adjacent to the Licensed Premises.
2. Restore the Licensed Premises to substantially their original condition as of the
Effective Date, reasonable wear and tear excepted.
3. Repair any damage to the Licensed Premises, reasonable wear and tear excepted.
M. INSURANCE AND INDEMNITY.
1. Clear Wireless will provide insurance in compliance with the provisions of Exhibit B.
2. Clear Wireless will indemnify and hold harmless the City from and against any and all
claims, suits, causes of action and damages of any kind or nature, arising from, or relating to the
use of the site by Clear Wireless, its employees or agents unless such claim or damage is the
result of the act, omission or negligence of the City, its employees, officers, agents or
contractors. IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE FOR ANY LOSS
OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR
SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE
FULLEST EXTENT SUCH MAY BE DISCLAIMED BY LAW.
N. HAZARDOUS MATERIALS. Clear Wireless will not use any part of the Licensed
Premises for the disposal, storage, treatment, processing, manufacturing or handling of
hazardous wastes, hazardous substances, asbestos or other materials "Hazardous Materials
deemed hazardous or otherwise subject to any federal, state, county or municipal laws, statutes,
codes, rules, regulations or ordinances pertaining to the use, handling, disposal, storage,
treatment, processing or manufacturing of Hazardous Materials or similar materials and
substances
O. DEBT SECURITY.
1. Clear Wireless may, without the City's consent, pledge, mortgage, convey by deed of
trust or security deed, assign, create a security interest in, or otherwise execute and deliver any
and all instruments for the purpose of securing a bona fide indebtedness, any or all of Clear
Wireless' interest in this License.
2. Promptly on Clear Wireless' or Clear Wireless' lender's request, the City will execute
and deliver the following documents requested and prepared by any of Clear Wireless' lenders:
(a) waivers of City's right to levy or distrain upon for rent of any of Clear Wireless' property
given as security for a debt; (b) City's estoppel certificate and agreement; (c) consents to giving
notice to Clear Wireless' lender(s) in the event of Clear Wireless' default under the provisions of
this License; and (d) consents to Clear Wireless' assignment to any lender(s) of any and all of
Clear Wireless' interest in or to this License.
P. NOTICES. All notices pertaining to this License are considered as delivered when
mailed to the following address registered, certified or regular mail. Either party may from time
to time designate a different address by written notice to the other party.
City: City of Pearland
3519 Liberty Drive
Pearland, TX 77581
Attn: City Manager
Copy to: Director of Public Works
3519 Liberty Drive
Pearland, TX 77581
Clear Wireless: Clear Wireless LLC
4400 Carillon Point
Kirkland, WA 98033
Attn: Site Leasing
Copy to: Clear Wireless LLC
4400 Carillon Point
Kirkland, WA 98033
Attn: Legal Department
Q. MISCELLANEOUS
1. This License is binding upon and will inure to the benefit of the parties hereto
and their respective heirs, successors, assigns and legal representatives (where assignment is
allowed).
2. This License is construed and governed by the laws of the State of Texas. Venue
for any action involving this License may only be brought in Brazoria County.
3. This License may be amended only in writing, executed by both parties hereto or
their permitted transferees.
4. If any provision of this License is held to be invalid, the invalidity does not affect
any other provision of this License.
5. The headings of the paragraphs of this License are for the guidance and
convenience of reference only and do not affect any of the provisions hereof.
6. This License may be executed in any number of counterparts, each of which will
be considered an original instrument, and all of which together will constitute one and the same
instrument.
7. This License contains the entire agreement between the parties and supersedes all
other negotiations and agreements, whether written or oral, regarding the subject matter hereof.
CITY OF PEARLAND
r i
By:
City Manager
ATTEST:
Date: b").-
Secr
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O �IinNNry�
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CLEAR WIRELESS LLC
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By•
ATTEST: Name: NICHOLE THOMAS
DIRECTOR NETWORK DEPLOYMENT
Title:
Date: 10 10
Exhibits: A- Licensed Premises and Antenna Facility pages)
B- Clear Wireless Insurance Requirements
Exhibit A- Licensed Premises and Antenna Facility
(to be attached)
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Exhibit B
Clear Wireless shall provide and maintain the minimum insurance coverages set forth below
during the term of its agreement with the City.
1. Commercial General Liability insurance at minimum combined single limits of
$1,000,000 per occurrence and $2,000,000 general aggregate for bodily injury and property
damage, which coverage shall include products /completed operations ($1,000,000
products /completed operations aggregate), and XCU (Explosion, Collapse, Underground)
hazards. Coverage must be written on an occurrence form. Contractual Liability in the policy of
Commercial General Liability must be maintained covering T- Mobile's obligations concerning
bodily injury and property damage as contained in the License Agreement between Clear
Wireless and the City. The general aggregate limit must be at least two (2) times the each
occurrence limit.
2. Workers Compensation insurance at statutory limits, including Employers Liability
coverage at minimum limits of $500,000 each occurrence each accident/$500,000 by disease
each occurrence /$500,000 by disease aggregate.
3. Commercial Automobile Liability insurance at minimum combined single limits of
$1,000,000 per occurrence for bodily injury and property damage, including owned, non owned,
and hired car coverage.
Any Subcontractor(s) hired by Clear Wireless shall maintain insurance coverage equal to that
required of Clear Wireless. It is the responsibility of Clear Wireless to assure compliance with
this provision. The City of Pearland accepts no responsibility arising from the conduct, or lack of
conduct, of the Subcontractor.
A Comprehensive General Liability insurance form may be used in lieu of a Commercial
General Liability insurance form. In this event, coverage must be written on an occurrence basis,
at limits of $1,000,000 each occurrence, combined single limit, and coverage must include a
broad form Comprehensive General Liability Endorsement, products /completed operations,
XCU hazards, and contractual liability.
With reference to the foregoing insurance requirement, Clear Wireless shall specifically endorse
applicable insurance policies as follows:
1. The City of Pearland shall be named as an additional insured with respect to General
Liability and Automobile Liability.
2. All liability policies shall contain no cross liability exclusions or insured versus insured
restrictions.
3. All waiver of subrogation in favor of The City of Pearland shall be contained in the
Workers Compensation and all liability policies.
4. Clear Wireless will immediately notify The City of Pearland of any reduction in the
insurance coverage that affects this License.
5. All insurance policies shall be endorsed to the effect that The City of Pearland will
receive at least thirty (30) days notice prior to cancellation or non renewal of the insurance.
6. Required limits may be satisfied by any combination of primary and umbrella liability
insurances.
7. Insurance must be purchased from insurers with an AM BEST rating of A minus or
better.
All insurance must be written on forms filed with and approved by the Texas Department of
Insurance. Certificates of Insurance shall be prepared and executed by the insurance company or
its authorized agent and shall contain provisions representing and warranting the following:
1. Sets forth all endorsements and insurance coverages according to requirements and
instructions contained herein.
2. Shall specifically set forth the notice -of- cancellation or termination provisions to The
City of Pearland.
A valid certificate of insurance verifying each of the coverages required above shall be issued
directly to the City of Pearland within ten (10) business days after the Effective Date. The
certificate of insurance shall be sent to:
City of Pearland
Finance/Purchasing
3519 Liberty Drive
Pearland, TX 77581
Exhibit "B"
Resolution No. R2010 -18
LICENSE AGREEMENT
This License Agreement "License is between THE CITY OF PEARLAND, TEXAS
"City and CLEAR WIRELESS LLC, a Nevada limited liability company "Clear Wireless
Recitals:
Clear Wireless has requested and the City has agreed to allow Clear Wireless by license to use
the City's water tank site located in the City of Pearland, Brazoria County, Texas, to operate a
communication transmission facility.
Agreement:
In consideration of the promises of each, the City and Clear Wireless agree as follows:
A. Definitions. In this License:
Antenna Facility means a communications facility consisting of antennae and associated
cabling and equipment as more particularly described in this License and as shown in Exhibit A.
Authorized Personnel means employees, engineers, technicians or agents of Clear
Wireless (or persons or entities under direct supervision thereof) who either: (1) carry an
identification badge identifying them as employees or agents of Clear Wireless; or (2) are
employees, engineers, agents or technicians acting on Clear Wireless' behalf.
City means the City of Pearland, a municipal corporation.
Effective Date (of this License) means the latest date of the dates this License is signed by
the City and by Clear Wireless.
License means the rights granted to and obligations imposed upon Clear Wireless under
this License.
Licensed Premises means the real property owned by the City as described in Exhibit A,
attached to and incorporated to this License by reference, together with the space on the Water
Tank being licensed to Clear Wireless by City.
Clear Wireless means Clear Wireless LLC, a Nevada limited liability company.
Water Tank means the City's potable water storage tank located on the Licensed
Premises.
B. USE OF LICENSED PREMISES.
1. The Licensed Premises are licensed to Clear Wireless as a site for Clear Wireless
to erect, construct, operate, maintain, repair, and replace an Antenna Facility.
2. (See Exhibit A) pairs of antennae will be placed on the Water Tower and oriented,
respectively, at approximately 0, 120, 240 degree azimuths, in line with Clear Wireless' network
requirements for antenna orientation. The antennae will be connected to the radio equipment
with coaxial cable running from the radio equipment to each of the three antennae footprints. The
radio equipment will be supplied with a power and telephone service by lines connected to the
power or telephone cables existing on or adjacent to the Licensed Premises.
3. Clear Wireless will comply with any reasonable rules and regulations related to
City's compliance with FAA laws and regulations.
4. If Clear Wireless places any item on the Licensed Premises that is not authorized
under this License and does not remove such item after 30 days written notice to Clear Wireless,
then the City may remove the item without liability to Clear Wireless for damage caused by the
City's removal.
5. Clear Wireless and its Authorized Personnel may access the Licensed Premises
for the purpose of maintenance, repair, replacement, and removal of the Antenna Facility at any
time, subject to the following:
(a) The City's reasonable security requirements;
(b) If Clear Wireless requires access outside of the City's normal business hours, Clear
Wireless will pay the City the reasonable costs it incurs in providing access;
(c) Clear Wireless will use its best efforts to contact the City no less than two (2) hours
prior to accessing the Licensed Premises;
(d) Clear Wireless will conduct its normal maintenance activities on the Licensed
Premises during the City's normal business hours; and
(e) Clear Wireless will furnish the City with a key or the combination or any lock
securing the site of Clear Wireless' equipment so the City may inspect Clear
Wireless' equipment at any time; provided, however, that in no event will City, its
employees, officers, or agents remove, relocate, modify, alter or otherwise tamper
with Clear Wireless' equipment.
6. All facilities Clear Wireless provides and installs on the Licensed Premises
remain the property of Clear Wireless and Clear Wireless may remove the same at any time
during or within 90 days after the termination of this License. Clear Wireless will continue to
pay the City License fees until Clear Wireless removes its property from the licensed Premises.
7. Clear Wireless will abide by all federal, state and local rules and regulations in
the operation of the Antenna Facility, including acquiring required licenses and permits.
8. The City's grant to Clear Wireless is a non exclusive License. The City may use
the Licensed Premises or allow any other person to use the Licensed Premises, other than Clear
Wireless' equipment compound, for any purpose that does not interfere with Clear Wireless'
rights granted under this License.
9. Clear Wireless may erect and operate the Antenna Facility in accordance with
Exhibit A. If Clear Wireless seeks to increase the number of antennas beyond the number
authorized herein, it must first pay for an evaluation carried out by a qualified professional
demonstrating that (i) each additional antenna will not interfere with the existing antennas and
that (ii) the City's Water Tank can structurally support the additional antennas. The cost of
evaluations required by this paragraph must be paid by Clear Wireless within thirty (30) days
after receiving written notice of the costs. If the City consents to the erection of additional
antennas, the parties will negotiate an additional license fee for Clear Wireless' use of the Water
Tank.
10. Upon commencement of this License, Clear Wireless shall deposit with the City
an amount equal to 25% of the first year's license fee, which shall be refunded to Clear Wireless
upon the timely removal of the Antenna Facilities, related equipment and the restoration of the
Licensed Premises to the reasonable satisfaction of the City. City may use the deposit to
complete work not done by Clear Wireless as required by this License Agreement, after notice of
default provided to Clear Wireless under Paragraph I below and Clear Wireless' failure to cure
such default within the notice period contemplated herein. If the deposit is not sufficient to cover
all costs, Clear Wireless must reimburse the City for additional costs, within ten (10) days after
City's written demand.
11. All modifications or improvements to the Licensed Premises for Clear Wireless'
benefit shall be at Clear Wireless' expense and such modifications or improvements shall be
maintained in a good state of repair. Clear Wireless' Antenna Facility shall, at all times, be
painted, at Clear Wireless' expense, the same color as the Water Tank.
If Clear Wireless interferes with the City's use of the Licensed Premises or the Water Tank Clear
Wireless agrees to cease all such actions that interfere with the City's use thereof no later than
five (5) days after receiving written notice of the interference from the City.
12. Upon the City's prior request, Clear Wireless will remove or relocate all or part of
the Antenna Facility from the Licensed Premises as may be necessary for the City to repair,
rehabilitate, replace, relocate, or maintain the Water Tower. The City will schedule regular, non
emergency maintenance, repair, or repainting as far in advance as is reasonably possibly and give
Clear Wireless at least 180 days advance written notice prior to the maintenance, repair, or
repainting to allow Clear Wireless to temporarily remove or relocate one or more of its antennae
and equipment. The City will use reasonable efforts to enable Clear Wireless to install and
operate a temporary site on the Licensed Premises which is suitable as a temporary site for Clear
Wireless until the antenna(e) and equipment affected by the temporary relocation can be
reinstalled at the original location.
13. If the City removes the Water Tank, the City will schedule the removal as far in
advance as possible and give Clear Wireless at least 120 days advance written notice to remove
its antennae and equipment. The City will use reasonable efforts to allow Clear Wireless to
relocate the antennae and equipment to other City property under a new agreement, with the same
terms and conditions as set forth herein, if the parties agree the new location is a suitable site. Upon
Clear Wireless' removal of its antennae and equipment from the Water Tank being removed, this
License terminates.
C. TERM. This License begins on the Effective Date and ends at 11:59 p.m. on the
day immediately preceding the tenth (10 anniversary of that date (the "Primary Term The
parties may extend this License for up to five successive five -year periods (the "Renewal
Periods as follows:
(1) At least 12 months before the expiration of the Primary Term or a Renewal
Period, as the case may be, Clear Wireless will notify the City in writing, in accordance with
Section 0, below, if it wishes to extend the License for One Renewal Period.
(2) If the City notifies Clear Wireless in writing, by registered or certified mail,
within 60 days of receiving Clear Wireless' request, that the City will not extend the License as
requested, the License terminates at the end of current Primary Term or Renewal Period, as the
case may be.
D. UTILITIES. Clear Wireless will, at its own expense, contract with a third party
provider for any electric, telephone, telecommunications, or similar utility services, and will be
responsible for the installation of any meters or associated equipment needed to serve its
Antenna Facilities on the Licensed Premises. Clear Wireless will obtain the City's prior approval
in writing of the location of any meters, lines, or associated electrical or utility equipment to be
located on the Licensed Premises that is not shown on Exhibit A. By approving the location of
any third party meters, lines, or associated equipment, the City grants an easement, at no
additional cost to Clear Wireless across the City's Licensed Premises for the purpose.
E. COMPLIANCE WITH LAWS. Clear Wireless will, at its expense, conduct all
operations on the Licensed Premises in compliance with all laws, ordinances, rules, regulations,
orders or directives of any government authority, and will not commit or allow to be committed
any public or private nuisance thereon.
F. WARRANTY. The City warrants that its title to the Licensed Premises is
sufficient for the City to grant this License to Clear Wireless for the purposes contained in this
License. The City also warrants to Clear Wireless that this License includes access to the
Licensed Premises by Clear Wireless, and that Clear Wireless may quietly enjoy the Licensed
Premises without disturbance except as provided for in this License.
G. LICENSE FEE.
1. Clear Wireless will pay to the City an annual license fee for the use of the
Licensed Premises. The license fee for the first year is $22,000.00. The annual license fee will
automatically increase each year by three percent (3 effective on each anniversary date of the
Effective Date.
2. Clear Wireless will pay the license fee to the City during the first calendar month
following the Effective Date, and each year thereafter during the same month of each year of the
Primary Term and any Renewal Period.
3. Clear Wireless will send or tender all license fee payments to the City at the
City's address specified in this License or other place as the City may designate upon 30 days
advance written notice to Clear Wireless. A change of ownership in the Licensed Premises is not
effective upon Clear Wireless until 30 days after the City notifies Clear Wireless of the change in
ownership.
4. After termination of the License, Clear Wireless will continue to pay to the City a
license fee until all of Clear Wireless' personal property is removed and any damages caused by
Clear Wireless to the Water Tank or Licensed Premises is repaired, normal wear and tear
excepted.
H. INTERFERENCE. Clearwire shall operate the Antenna Facility in compliance
with all Federal Communications Commission "FCC requirements including those
prohibiting interference to communications facilities of the City or other lessees or licensees of
the Water Tank or Leased Premises, provided that the installation and operation of any such
facilities predate the installation of the Antenna Facility. Subsequent to the installation of the
Antenna Facility, Citywill not permit its lessees or licensees to, install new equipment on or
make any alterations to the Water Tank, Leased Premises or property contiguous thereto owned
or controlled by the City if reliable evidence indicates such modifications are likely to cause
interference with Clear Wireless' operations. In the event interference occurs, the City agrees to
use best efforts to eliminate such interference in a reasonable time period.
I. TERMINATION WITHOUT DEFAULT.
1. Clear Wireless may terminate this License at any time by giving 30 days written
notice to the City of its intention to do so, after the expiration of the first five (5) years of the
Primary Term.
2. The City may terminate this License at any time after the Primary Term, by
giving Clear Wireless at least 180 days prior written notice of termination, if the City decides to
abandon, remove, relocate, or discontinue use of the Water Tower, or replaces the Water Tower
with another Water Tower. If the existing Water Tower is destroyed by fire, tornado, hurricane,
flood, wind, or other natural causes, and the City decides not to replace the Water Tower, this
License terminates on the date of destruction and the City may retain any license fees paid prior
to the date of destruction. If the City chooses to replace the destroyed Water Tower, the City
will notify Clear Wireless of the estimated date of replacement. If Clear Wireless does not
terminate the License by giving notice to the City prior to the date the Water Tower is replaced,
this License will remain in effect, but the next annual License Fee will be reduced and /or
prorated to account for the time the Water Tower was not available for use by Clear Wireless.
3. Any provision of this License that imposes an obligation upon Clear Wireless that
extends beyond the termination of this License, survives termination of this License.
J. TERMINATION FOR DEFAULT.
1. Either party may terminate this License as provided in this paragraph if the other
party fails to comply with a provision of this License. The party claiming a default by the other
party will give written notice specifying the default and what must be done to correct the default.
If the party receiving the notice fails to correct the default within 30 days of receiving the notice
of default, the other party may terminate this Licensee by providing notice of termination to the
other party.
2. If a claimed default cannot reasonably be cured within 30 days, the other party
will not be deemed to be in default if the other party promptly attempts to cure the default upon
receiving notice and thereafter cures the default within 60 days from receipt of the notice.
3. Notwithstanding anything to the contrary in this License, Clear Wireless' cure
period for any monetary default will be thirty (30) days after its receipt of written notice of such
default from the City.
K. ASSIGNABILITY.
1. Clear Wireless may not assign the License without the prior written consent of the
City unless the assignment is: (a) to an affiliate or subsidiary of Clear Wireless; (b) to Clear
Wireless' successor by operation of law or otherwise; (c) in connection with any public offering
of interests by Clear Wireless; or (d) to any affiliate or subsidiary or other party as may be
required in connection with any offering, merger, acquisition recognized security exchange or
financing. Upon acceptance of any assignment of this License (together with a copy of such
assignee's written assumption of Clear Wireless' obligations hereunder), the City will look
solely to the assignee for the satisfaction of Clear Wireless' obligations.
2. Clear Wireless may allow any other party to make use of Clear Wireless'
communication transmission facilities or equipment without consent of the City, but the use does
not release Clear Wireless from any of Clear Wireless' obligations under this License.
L. REMOVAL OF PROPERTY. Clear Wireless will, within 90 days after the
termination of this License:
1. Dismantle and remove all property and improvements placed by Clear Wireless on the
Licensed Premises or land adjacent to the Licensed Premises.
2. Restore the Licensed Premises to substantially their original condition as of the
Effective Date, reasonable wear and tear excepted.
3. Repair any damage to the Licensed Premises, reasonable wear and tear excepted.
M. INSURANCE AND INDEMNITY.
1. Clear Wireless will provide insurance in compliance with the provisions of Exhibit B.
2. Clear Wireless will indemnify and hold harmless the City from and against any and all
claims, suits, causes of action and damages of any kind or nature, arising from, or relating to the
use of the site by Clear Wireless, its employees or agents unless such claim or damage is the
result of the act, omission or negligence of the City, its employees, officers, agents or
contractors. IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE FOR ANY LOSS
OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR
SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE
FULLEST EXTENT SUCH MAY BE DISCLAIMED BY LAW.
N. HAZARDOUS MATERIALS. Clear Wireless will not use any part of the Licensed
Premises for the disposal, storage, treatment, processing, manufacturing or handling of
hazardous wastes, hazardous substances, asbestos or other materials "Hazardous Materials
deemed hazardous or otherwise subject to any federal, state, county or municipal laws, statutes,
codes, rules, regulations or ordinances pertaining to the use, handling, disposal, storage,
treatment, processing or manufacturing of Hazardous Materials or similar materials and
substances
O. DEBT SECURITY.
1. Clear Wireless may, without the City's consent, pledge, mortgage, convey by deed of
trust or security deed, assign, create a security interest in, or otherwise execute and deliver any
and all instruments for the purpose of securing a bona fide indebtedness, any or all of Clear
Wireless' interest in this License.
2. Promptly on Clear Wireless' or Clear Wireless' lender's request, the City will execute
and deliver the following documents requested and prepared by any of Clear Wireless' lenders:
(a) waivers of City's right to levy or distrain upon for rent of any of Clear Wireless' property
given as security for a debt; (b) City's estoppel certificate and agreement; (c) consents to giving
notice to Clear Wireless' lender(s) in the event of Clear Wireless' default under the provisions of
this License; and (d) consents to Clear Wireless' assignment to any lender(s) of any and all of
Clear Wireless' interest in or to this License.
P. NOTICES. All notices pertaining to this License are considered as delivered when
mailed to the following address registered, certified or regular mail. Either party may from time
to time designate a different address by written notice to the other party.
City: City of Pearland
3519 Liberty Drive
Pearland, TX 77581
Attn: City Manager
Copy to: Director of Public Works
3519 Liberty Drive
Pearland, TX 77581
Clear Wireless: Clear Wireless LLC
4400 Carillon Point
Kirkland, WA 98033
Attn: Site Leasing
Copy to: Clear Wireless LLC
4400 Carillon Point
Kirkland, WA 98033
Attn: Legal Department
Q. MISCELLANEOUS
1. This License is binding upon and will inure to the benefit of the parties hereto
and their respective heirs, successors, assigns and legal representatives (where assignment is
allowed).
2. This License is construed and governed by the laws of the State of Texas. Venue
for any action involving this License may only be brought in Brazoria County.
3. This License may be amended only in writing, executed by both parties hereto or
their permitted transferees.
4. If any provision of this License is held to be invalid, the invalidity does not affect
any other provision of this License.
5. The headings of the paragraphs of this License are for the guidance and
convenience of reference only and do not affect any of the provisions hereof.
6. This License may be executed in any number of counterparts, each of which will
be considered an original instrument, and all of which together will constitute one and the same
instrument.
7. This License contains the entire agreement between the parties and supersedes all
other negotiations and agreements, whether written or oral, regarding the subject matter hereof.
CITY OF PEARLAND
By:
City Manager
ATTEST:
Date:
/4/ i�/ /I 4',
/SecrI4 :x
CLEAR WIRELESS LLC
By:
ATTEST: Name: NICHOLE THOMAS
DIRECTOR NETWORK DEPLOYMENT
Title:
Date: 4. t 0
Exhibits: A- Licensed Premises and Antenna Facility pages)
B- Clear Wireless Insurance Requirements
Exhibit A- Licensed Premises and Antenna Facility
(to be attached)
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Exhibit B
Clear Wireless shall provide and maintain the minimum insurance coverages set forth below
during the term of its agreement with the City.
1. Commercial General Liability insurance at minimum combined single limits of
$1,000,000 per occurrence and $2,000,000 general aggregate for bodily injury and property
damage, which coverage shall include products /completed operations ($1,000,000
products /completed operations aggregate), and XCU (Explosion, Collapse, Underground)
hazards. Coverage must be written on an occurrence form. Contractual Liability in the policy of
Commercial General Liability must be maintained covering Clear Wireless' obligations
concerning bodily injury and property damage as contained in the License Agreement between
Clear Wireless and the City. The general aggregate limit must be at least two (2) times the each
occurrence limit.
2. Workers Compensation insurance at statutory limits, including Employers Liability
coverage at minimum limits of $500,000 each occurrence each accident /$500,000 by disease
each occurrence /$500,000 by disease aggregate.
3. Commercial Automobile Liability insurance at minimum combined single limits of
$1,000,000 per occurrence for bodily injury and property damage, including owned, non owned,
and hired car coverage.
Any Subcontractor(s) hired by Clear Wireless shall maintain insurance coverage equal to that
required of Clear Wireless. It is the responsibility of Clear Wireless to assure compliance with
this provision. The City of Pearland accepts no responsibility arising from the conduct, or lack of
conduct, of the Subcontractor.
A Comprehensive General Liability insurance form may be used in lieu of a Commercial
General Liability insurance form. In this event, coverage must be written on an occurrence basis,
at limits of $1,000,000 each occurrence, combined single limit, and coverage must include a
broad form Comprehensive General Liability Endorsement, products /completed operations,
XCU hazards, and contractual liability.
With reference to the foregoing insurance requirement, Clear Wireless shall specifically endorse
applicable insurance policies as follows:
1. The City of Pearland shall be named as an additional insured with respect to General
Liability and Automobile Liability.
2. All liability policies shall contain no cross liability exclusions or insured versus insured
restrictions.
3. All waiver of subrogation in favor of The City of Pearland shall be contained in the
Workers Compensation and all liability policies.
4. Clear Wireless will immediately notify The City of Pearland of any reduction in the
insurance coverage that affects this License.
5. All insurance policies shall be endorsed to the effect that The City of Pearland will
receive at least thirty (30) days notice prior to cancellation or non renewal of the insurance.
6. Required limits may be satisfied by any combination of primary and umbrella liability
insurances.
7. Insurance must be purchased from insurers with an AM BEST rating of A minus or
better.
All insurance must be written on forms filed with and approved by the Texas Department of
Insurance. Certificates of Insurance shall be prepared and executed by the insurance company or
its authorized agent and shall contain provisions representing and warranting the following:
1. Sets forth all endorsements and insurance coverages according to requirements and
instructions contained herein.
2. Shall specifically set forth the notice -of- cancellation or termination provisions to The
City of Pearland.
A valid certificate of insurance verifying each of the coverages required above shall be issued
directly to the City of Pearland within ten (10) business days after the Effective Date. The
certificate of insurance shall be sent to:
City of Pearland
Finance/Purchasing
3519 Liberty Drive
Pearland, TX 77581