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Res 100-2008 7/1/2008 RESOLUTION NO. O� O RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, TO AUTHORIZE THE CITY MANAGER TO EXECUTE TWO LEASE AGREEMENTS WITH CHOICE WIRELESS, L.C. DBA AMERILINK WIRELESS FOR THE PLACEMENT OF CELL ANTENNAS AT 3904 LAWRENCE ROAD AND 509 BEVERLY STREET; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, The City of Wichita Falls intends to lease to Choice Wireless, L. C. DBA Amerilink Wireless for communications purposes the use of certain property and structures as described in the lease agreement for the properties located at 3904 Lawrence Road and 509 Beverly Street; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1. The City Manager is hereby authorized to execute lease agreements with Choice Wireless, L. C. DBA Amerilink Wireless as indicated in the title of this Resolution. The leases are provided in "Exhibit A" and "Exhibit B". SECTION 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 1st day of July, 2008. . ��-, ; <- _ �'" M PRO-TEM ATTEST: � _ \ �. - ity Clerk '., r .. � . '.{,' ` . r.r:•i .. ; . � ' �.. �, • � .�. � ��IF�M�' i � � t � .. �� . .'t <� ,'r''f �{ ' ' �•� �� } � � � ( � Y �� Y �� .�.. �� :� '� , y �' � '� '! . "y} W . ' � , ��+�'2 •� ��., � . • . � . �r i', _. ' �r' - �. _ `� • A+ Y ,^. � f. , .'�� r� .L� _ ''�'. Pi ��tt"^Y�Ya. ..�, , .. � _!Y� 7 a � _. . , ` ,y. ' �� ,�.►�' Y '"', � s: �^an"�9 �� . .:n , Y �.IE r � _ ... - . tc � �,I,�,�3�� t. .;�� . i ,� ? - - o." �� .,�, ,�� 1 `) � ��.. �n� ,- . ... �� ,. ,� ,��h � `�a � �s� �� - -� - ' - - . �3� • t ,:3 �.1�4��,:�� • j. . - — t, �� t , � ' �.� "T�'�.� ' .t�*i,�,�•{4 � � ' � 1 . 1 � . 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' k ,.4 : !' ;Y t� q �" • ; , .:..� � + �ie !L ��';�a,�. , . � . r - f�'.::J sE� .` . I�I�r•r�.n�rr�o��ln��Cw ioi �i7 Ca�� iovlTtiqr• �•��t� Exhibit A 13 Pages (to include 3 LEASE AGREEMENT BETWEEN Attachments) THE CITY OF WICHITA FALLS, TEXAS AND CHOICE WIRELESS, L.C. THIS LEASE AGREEMENT made and entered into this day of 2008, by and between the City of Wichita Falls, Texas, a municipal corporation situated in Wichita County, Texas, hereinafter called the LESSOR, and CHOICE WIRELESS, L.C., a Texas limited liability company dba AMERILINK WIRELESS, hereinafter called LESSEE; WITNESSETH WHEREAS, the LESSOR owns property and structures situated in Wichita County, Texas; and, WHEREAS, LESSEE is engaged in the business of providing wireless communication services; and, WHEREAS, LESSEE intends to lease from LESSOR for communication purposes the use of certain property and the structures thereon located at 3904 Lawrence Road known as the Transfer Station Tower, upon the terms and conditions hereinafter set forth; NOW, THEREFORE, LESSOR and LESSEE agree as follows: ARTICLE 1. TERM 1.1 TERM. The term of this Agreement shall commence upon execution hereof and shall continue thereafter for a term of five (5) years, unless sooner terminated as hereinafter set forth. 1.2 OPTION TO EXTEND. LESSEE shall have the option to extend this Agreement for one (1) additional five (5) year term. LESSEE must give LESSOR written notice of its intention to extend this Agreement not less than one hundred twenty (120) days prior to the expiration of the initial term or any extended term of this Agreement. ARTICLE 2. LEASED PREMISES 2.1 USE OF LEASED PREMISES. Prior to installing their antenna/dish LESSEE must submit written plans and/or sketches from entry of their cable on LESSOR'S property, including the route, overhead or underground, the up leg to the antenna/dish location and the proposed method of fixing the antennaldish to the tower. All cables, wiring and attachment mechanisms must be approved and must otherwise comply with the City's Electrical Code. LESSOR shall bear no liability for any damages to any cable installed due to routine maintenance to leased facilities. LESSOR grants unto LESSEE use of the structures and property as more particularly described in "Attachment 1" hereto (reference to which is made for all purposes as if said Attachment 1 were set forth herein) for the purposes of constructing, installing, operating, maintaining, repairing. inspecting, replacing and removing transmit and receive antennas, microwave antennas and associated mechanical and electrical equipment, cables and hardware on structures owned by LESSOR and described in "Attachment 1" (hereinafter Leased Premises), and for such other purposes as may be necessary or convenient for the full enjoyment of the lease herein granted. As to each site, LESSEE, following LESSOR'S approval, shall be permitted to use the highest location then available subject to the limitations imposed by the Federal Communications Commission, LESSOR and other applicable governmental authority, LESSEE have the right to install six (6) antennas and six (6) coaxial cables including the appropriate hardware necessary to properly affix said equipment on or at the facility as further described and specified in Attachment 1. In addition, LESSEE, subject to LESSOR approval as provided herein, shall have the right to install its wireless equipment cabinet(s) and associated power and telco enclosures as required by industry and or local standards also specified in "Attachment 1". For purposes of performing the rights granted to LESSEE hereunder LESSEE shall have restricted access to the leased premises in accordance with the Homeland Security Laws. LESSEE shall notify LESSOR in writing of the persons authorized to enter the property and entry shall be restricted to those persons. The Leased Premises provided for in this Section shall not be used by any person engaging in any activity or performing any act or furnishing any service for or on behalf of LESSEE that LESSEE is not authorized to engage in or perform under the provisions hereof unless expressly authorized by LESSOR. 2.2 ADVERTISING AND SIGNAGE ON LEASED PREMISES. LESSEE shall not have the right to install or operate any advertising signs representing its business on the Leased Premises. ARTICLE 3. RENTALS 3.1 RENTALS. LESSEE agrees to pay LESSOR for the use of the Leased Premises hereunder monthly rentals of Twelve Hundred Dollars ($1,200.00) per month or the equivalent thereof payable as follows: a) At the end of each calendar month LESSEE shall aav LESSOR the rentals incurred bv LESSEE durin¢ the calendar month which shall be aaid bv LESSEE within thirtv (30) davs of the end of the month Pavments for aartial calendar months shall be prorated according to the actual number of davs• b) The rentals required hereunder shall not commence until LESSEE actuallv be�ins ins tallation under this Agreement or ninetv (90) davs from the date of execution of this Agreement. whichever �s earher. c) The monthly rental rate or equivalent thereof, shall increase to Thirteen Hundred Eighty Dollars ($1,380.00) during the first renewal option period of five years. 3.2 PAYMENTS. All payments required of LESSEE by this Agreement shall be made by check, cash or other immediately available funds mailed or delivered to the following address below; or to such other address as LESSOR may designate in writing: City of Wichita Falls Attn: Finance Dept. P.O. Box 1431 City of Wichita Falls, Texas 76307 3.3 ADDITIONAL AND ALTERNATE SITES. LESSOR and LESSEE acknowledge that the efficacy of a particular site for LESSEE'S purposes and the effect of LESSEE'S operations on existing uses of a particular site cannot be predicted with certainty. No additional sites will be permitted unless LESSOR approves in writing any additional sites for antennae, support buildings and access requested to be added by LESSEE other than those described in Attachment 1 attached and made part of this Agreement. 3.4 LATE PAYMENT CHARGE. Other remedies for nonpayment notwithstanding, if the monthly rent payment or the equivalent thereof is not received by LESSOR on or before the thirtieth (30th) day following receipt by LESSEE of LESSOR'S statement of rentals, then a late payment charge of five percent (5) of such past due amount shall become immediately due and payable in addition to all other amounts owed under this Agreement. ARTICLE 4. LESSORS RIGHT TO ENTER LESSEE'S PREMISES LESSOR and its authorized officers, employees, contractors, subcontractors, and other representatives shall have the right to enter upon the Leased Premises for the following purposes: 4.1 To inspect the Leased Premises to determine whether the LESSEE has complied and is complying with the terms and conditions of this Agreement. 4.2 To perform maintenance and make repairs and replacements to the Leased Premises in any case where the LESSEE is obligated to repair or maintain and has failed after written notice so to do, in which event the LESSEE shall reimburse the LESSOR for the cost thereof promptly upon written demand. 4.3 To perform maintenance and make known repairs and replacements to the Leased Premises in any case where the LESSOR deems necessary. 4.4 In the exercise of the LESSOR'S police power. No such temporary entry by or on behalf of the LESSOR shall cause or constitute a termination or interference with LESSEE'S quiet enjoyment of the Leased Premises. In the exercise of its rights hereunder LESSOR shall make reasonable efforts to avoid unnecessary or excessive interference with LESSEE'S quiet enjoyment of the Leased Premises. ARTICLE 5. DAMAGE OR DESTRUCTION OF LEASED PREMISES If the Leased Premises or any portion thereof shall be partially damaged by fire, the elements, the public enemy or other casualty, but not rendered unusable, the same shall be repaired by LESSEE at its own expense, and rent shall be paid as agreed upon by this Agreement, if the damage shall be so extensive as to render the Leased Premises or any portion thereof unusable, LESSEE shall have the option of terminating this Agreement or repairing the Leased Premises or any portion thereof at its own cost and expense. The damages mentioned here in is limited to LESSEE's equipment. However, if any damages to municipal equipment caused by the LESSEE's equipment then the LESSEE shall be responsible those cost of repairs. In the event that the Leased Premises or any portion thereof is rendered unusable and LESSEE has elected to repair it at its own cost and expense, then there shall be an abatement of the rentals due hereunder for the period beginning from the date the Leased Premises or any portion thereof was rendered unusable until such time as the Leased Premises is rendered usable. ARTICLE 6. INDEMNITY AND INSURANCE LESSEE agrees to indemnify and hold LESSOR harmless from and against all liability for injuries or death to persons or damage to property caused by LESSEE'S use of the Leased Premises or that of its agents or employees. LESSOR shall give to LESSEE prompt and timely notice of any claim made or suit instituted which in any way, directly or indirectly, contingently or otherwise, affects or might affect LESSEE, and LESSEE shall have the right to compromise and defend the same to the extent of its own interest, but not to the detriment of LESSOR. LESSEE shall, at its own expense, keep in force insurance of the following types and in not less than the following amounts issued by a company or companies with an A.M. Best rating of B+ or better against all liabilities for accidents arising out of or in connection with LESSEE'S use of the Leased Premises, and shall furnish to LESSOR certificates evidencing such insurance, and the LESSOR shall be furnished with a certificate to the effect that such insurance shall not be canceled or materially changed without thirty (30) days written actual prior notice to the LESSOR, to-wit: Comprehensive Public Liabilitv Insurance $1,000,000 per person Comprehensive Pro�erty Damage Insurance $1,000,000 per occurrence Statutory Workers Compensation Insurance Including a waiver of subrogation in favor of LESSOR Automobile liabilitv $250,000 bodily injury each person $500,000 bodily injury each occurrence $100,000 property damage each occurrence Coverage for explosion, collapse and underground property hazards and contractual liability. coverage cannot be excluded. LESSEE will assume all liability for LESSEE'S independent contractors. A certificate of insurance in compliance with the above shall be placed on file with LESSOR prior to execution of this Agreement. ARTICLE 7. SURRENDER OF POSSESSION Upon the expiration or other termination of this Agreement or any renewal thereof, LESSEE'S right to use the Leased Premises shall cease and LESSEE shall forthwith, upon such expiration or termination, surrender the same. Except as otherwise provided in this Article, all fixtures, improvements, equipment and other property brought, installed, erected, or placed by LESSEE in, on or about the Leased Premises shall be deemed to be personal property and remain the property of LESSEE and LESSEE shall have the right at any time during the term of this Agreement, or any extension thereof, and for an additional period of sixty (60) days after the expiration or other termination of the Agreement, to remove any or all of its property from the Leased Premises, provided LESSEE is not in default in its payments to LESSOR hereunder, and subject further to LESSEE'S obligation to repair all damage, if any, resulting from such removal. Any and all property not removed by LESSEE prior to the expiration of the aforesaid sixty (60) day period shall thereupon become a part of the Leased Premises and title thereto shall thereupon vest in LESSOR free of any liens or encumbrances, except that such sixty (60) day period may be extended by LESSOR at its discretion. In the event LESSEE cannot reasonably complete the removal of LESSEE'S property within sixty (60) days, this Agreement shall be extended more than sixty (60) days for the removal of such property and rental shall be paid at the existing rates for the term of the extension beyond sixty (60) days required to remove said property, as to each site for which the extension is granted. ARTICLE 8. ASSIGNMENT AND SUBLETTING LESSEE shall not, at any time, assign this Agreement or sublease said Leased Premises without the consent in writing of LESSOR; provided that the foregoing shall not prevent the assignment of this Agreement or any of the rights and privileges granted LESSEE hereunder, to any corporation, limited liability company, or other legal entity with which LESSEE may merge or consolidate, or which may succeed to the ownership of LESSEE by reorganization or otherwise. Should a merger or succession of ownership occur, LESSEE will give LESSOR prompt notice as herein provided. ARTICLE 9. QUIET ENJOYMENT LESSOR agrees that, on payment of the rent and performance of the covenants and agreements on the part of LESSEE to be performed hereunder. LESSEE shall peaceably have and enjoy the Leased Premises and all the rights and privileges granted herein. ARTICLE 10. RULES AND REGULATIONS LESSEE shall observe and obey all rules and regulations governing the conduct and operation of the Leased Premises promulgated from time to time by LESSOR, which are required for the prudent and efficient operation of the Leased Premises and are not Inconsistent with the exercise by LESSEE of any right or privilege granted to it hereunder, or not inconsistent with the rules, regulations or procedures of any Federal or State agency. LESSEE shall not use or permit the use of the Leased Premises or any part thereof or do or permit its officers or employees or any other person over whom it has control to do any act or thing on the Leased Premises in violation of any present or future laws, ordinances, rules or regulations of the LESSOR or any other public or governmental authority. LESSEE shall obtain and conform to all governmental and local licenses and permits necessary for the conduct of its activities. LESSEE shall, at all times, maintain the Leased Premises in compliance with any and all present and future laws, ordinances and general rules or regulations of the LESSOR, State of Texas and Federal Government. ARTICLE 11. RESERVATIONS BY LESSOR The LESSOR reserves the right and authority to temporarily require LESSEE to remove all or a portion of its property from the Leased Premises when in LESSOR'S sole opinion exercised in good faith such removal is necessary in order for LESSOR to make repairs or improvements to the Leased Premises. LESSOR shall give LESSEE sixty (60) days prior written notice of any decision which requires LESSEE to remove its property from the Leased Premises. In the event that there is a delay of seven (7) days or more in returning the Leased Premises to operational condition or the Leased Premises are removed from service indefinitely, LESSEE hereby acknowledges that its sole remedy for any damages or losses occasioned by such delay or removal shall be the abatement of the rental payments provided for above. The rental abatement shall be for the period beginning after the Leased Premises has been out of service for seven (7) days and shall remain in effect until such time as the Leased Premises is returned to operational condition, in the event LESSOR shall determine that LESSEE shall not be allowed to reinstall its equipment on the Leased Premises, or LESSEE shall determine that the delay beyond seven (7) days is unacceptable to LESSEE, then and in either event this Agreement as to that portion of the Leased Premises involved shall terminate upon receipt of written notice, and neither LESSOR nor LESSEE shall be entitled to any damages as a result thereo£ At the option of LESSEE and to the extent facilities are available to LESSOR, LESSEE may install and operate a temporary tower or facilities during the duration of repairs and improvements by LESSOR, and rent shall be abated as to that site for and during the term of the repairs and improvements. ARTICLE 12. OBLIGATIONS OF LESSEE To maintain the Leased Premises, the LESSEE shall be obligated to do the following: 1) Furnish all improvements necessary to make the Leased Premises physically and structurally safe to accommodate LESSEE'S equipment. 2) LESSEE will promptly notify LESSOR when damage occurs to the Leased Premises and when maintenance is required. LESSEE shall reimburse the LESSOR for the cost of repairing, replacing, or rebuilding any damages to the Leased Premises caused by the acts or omissions of the LESSEE or its officers, employees, or agents. 3) LESSEE will promptly pay for all utilities supplied as a result of LESSEE'S use of the Leased Premises. ARTICLE 13. ALTERATIONS AND IMPROVEMENTS Whenever consistent with this Agreement, LESSEE shall have the right to construct and install, at its sole expense, improvements on the Leased Premises as LESSEE deems to be necessary for its operations; provided, however, that the plans and specifications, location, and construction schedule for such improvements shall have been approved by LESSOR in writing prior to the commencement of any and all construction or installation. Any work associated with such construction or installation shall not interfere with the operation of the Leased Premises. LESSEE shall deliver to LESSOR reproducible "as built" drawings of LESSEE improvements and additions no later than thirty (30) days following the substantial completion of any such improvements and additions. LESSEE will not alter or modify the Leased Premises without prior written approval of LESSOR. LESSEE shall keep the Leased premises free and clear of any and all liens in any way arising out of any alteration, modification, or use thereof by LESSEE. Any construction or installation for improvements made by LESSEE on the Leased Premises shall be at the sole expense of LESSEE and shall be in accordance with all applicable State and Local Codes and Laws and subject to inspection by LESSOR. All improvements made to the Leased Premises and additions and alterations thereto made by LESSEE shall remain the property of LESSEE until termination of this Agreement or any extension thereof. In addition, any improvements of LESSEE shall remain the property of LESSEE, as more completely set forth and subject to the requirements of Article 7, above. LESSEE'S equipment shall not interfere with or disrupt LESSOR'S equipment and/or city-wide radio system(s) or LESSOR can require immediate removal of LESSEE'S eyuipment ARTICLE 14. DEFAULT AND TERMINATION 14.1 LESSEE'S DEFAULT AND DEFAULT NOTICES. LESSOR may cancel this agreement if LESSEE fails to pay its rental obligations or equivalent thereof under this Agreement or if LESSEE abandons or ceases to use the Leased Premises for a continuous period of thirty (30) days, or if LESSEE fails to fulfill any other materiai obligation under this Agreement. Should LESSOR elect to declare LESSEE in default it will give LESSEE written notice of the condition of default. If LESSEE fails to pay any amount due to LESSOR within fifteen (15) days after notice of default, or if LESSEE fails to cure any other condition of default within thirty (30) days after notice of default, LESSOR may terminate this Agreement. If a default is not curable LESSOR may immediately terminate this Agreement without giving any prior written notice of default. The following shall be "events of default" under this Agreement constituting a breach of the Agreement: a) If the rentals or other monetary payments that LESSEE herein is obligated to pay, or any part thereof, shall become past due or in arrears. b) If LESSEE files a voluntary petition in bankruptcy, or makes a general assignment for the benefit of creditors, or if LESSEE is adjudicated as bankrupt. c) The taking of jurisdiction of LESSEE or its assets by a court of competent jurisdiction pursuant to proceedings brought under the provisions of any federal reorganization act. d) The appointment of a receiver or a trustee of LESSEE'S assets by a court of competent jurisdiction or a voluntary agreement with LESSEE'S creditors, and the same is not removed in ninety (90) days, e) If any act occurs that deprives LESSEE of the rights, power and privileges necessary for the proper conduct and operation of its business. � If LESSEE abandons and fails to use the Leased Premises for a period of thirty (30) days at any one time, except when such abandonment and cessation are due to LESSOR'S default or fire, earthquake, strike, governmental action, or other similar causes beyond LESSEE'S control g) If LESSEE uses or permits the use of the Leased Premises at any time for any purpose for which the use thereof is not authorized by this Agreement, or permits the use thereof in violation of any law, rule or regulation. h) If LESSEE assigns or sublets this Agreement in violation of Article 8 above. 14.2 LESSOR'S REMEDIES. If any default by LESSEE shall continue uncured following notice of default for the period applicable to the default under the provisions of this Agreement, or if the default is not curable, LESSOR may at its election terminate this Agreement by giving LESSEE notice of termination. No acts by LESSOR other than giving written notice to LESSEE shall terminate this Agreement. Acts of the lack of proper maintenance and efforts to relet the Leased Premises shall not constitute a termination of LESSEE'S right to possession. On provision of written notice and expiration of any applicable right to cure, all LESSEE'S rights in the Leased Premises shall terminate, except as provided in Article 7. Termination under this paragraph shall not relieve LESSEE from the payment of any sum due LESSOR or from any claim for damages previously accrued or then accruing against LESSEE. Notwithstanding any election by LESSOR not to terminate this Agreement, LESSOR may at any time thereafter elect to terminate this Agreement for any previous breach or default hereunder not previously waived by LESSOR in writing, to terminate this Agreement for any previous breach or default hereunder by LESSEE which remains uncured, or far any subsequent breach or default. LESSOR shall be entitled at its election to damages and shall have ali the remedies available by law. 14.3 NO REMEDY EXCLUSIVE. No remedy conferred herein upon or reserved to LESSOR or to LESSEE is intended to be exclusive unless expressly made exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power that may be exercised from time to time and as often as may be deemed expedient. In order to entitle LESSOR or LESSEE to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be required in this Agreement or by law. 14.4 WAIVER AND VOLUNTARY ACTS. No waiver of any breach or default shall constitute a waiver of any other breach or default, whether of the same or any other term, agreement or condition. No waiver, benefit, privilege or service voluntarily given or performed by either party shall give the other contractual right by custom, estoppels or otherwise. The subsequent payment or acceptance of rent or equivalent thereof, or other money payments pursuant to this Agreement shall not constitute a waiver of any preceding breach or default by LESSEE or LESSOR (other than default in the payment of a particular rental or other payment so accepted) regardless of LESSOR'S or LESSEE'S knowledge of the preceding breach at the time of paying or accepting the rental or other payment. Acceptance of rent or other money payments after termination shall not constitute a reinstatement, extension or renewal of the Agreement or revocation of any notice or other act by LESSOR. 14.5 ADDITIONAL REMEDY IN BANKRUPTCY. The parties hereto expressly agree, notwithstanding anything in this Agreement to the contrary, that in the event that LESSEE becomes a debtor under any chapter of the Bankruptcy Code and this Agreement has not been terminated prior to the commencement of LESSEE'S bankruptcy proceedings, all rents, payable by LESSEE to, or on behalf of LESSOR hereunder, whether or not expressly denominated as rent, shall constitute rent solely for the purpose of calculating LESSOR'S damage pursuant to Section 502(b) (6) or any similar provision of the Bankruptcy Code, 1] U.S.C. Section 502(b) (6) in the event that this Agreement is rejected in such bankruptcy proceeding. 14.6 EVENTS PERMITTING TERMINATION OF AGREEMENT BY LESSEE. LESSEE may cancel and terminate this Agreement after the happening of one of the following events, by giving LESSOR thirty (30) days written notice: a) The breach by the LESSOR of any of the covenants or agreements herein contained to be performed by the LESSOR and the failure by the LESSOR for a period of thirty (30) days after receipt of written notice of the existence of such breach to remedy the breach. b) The assumption by the United States Government or any authorized agency thereof of the use or operation of the common use facilities of the LESSOR or any substantial portion thereof in such a manner as to substantially restrict LESSEE from operation for a period of thirty (30) or more days; c) Governmental authority necessary for construction and/or operation of the Leased Premises or LESSEE'S business cannot be obtained or is not for any reason maintained; or d) LESSEE determines in good faith that the Leased Premises are not appropriate for its operations for technological reasons, including, but not limited to signal interference. 14.7 CANCELLATION BY LESSOR AND LESSEE. LESSOR or LESSEE may cancel and terminate this Agreement at any time upon giving one hundred eighty (180) days prior written notice of such cancellation to the other party. ARTICLE 15. FORCE MAJEURE Except as herein provided, neither LESSOR nor LESSEE shall be deemed to be in default hereunder if either party is prevented from performing any of the obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes, shortages of energy or materials, acts of God, acts of public enemy, acts of superior governmental authority, weather conditions, riots, rebellion, or sabotage, or any other circumstances for which it is not responsible, or which are not within its control. Under no circumstances shall the occurrence of any event provided for in this Article excuse LESSEE from paying rentals to LESSOR pursuant to the terms of this Agreement. ARTICLE 16. GENERAL PROVISIONS 16.1 THIRD PARTY BENEFICIARY RIGHTS. Each of the parties has entered into this Agreement and lease solely for its own benefit, and this Agreement does not and is not intended to create any third party beneficiary rights. 16.2 HEADING. The headings of the various titles and sections of this Agreement and lease are merely for the convenience of reference. 16.3 LAW TO BE APPLIED. This Agreement is to be read and construed in accordance with the laws of the State of Texas and fully performed in Wichita County, Texas. 16.4 SEVERABILITY. tn the event any covenant, condition or provision herein contained is held to be invalid by any court of competent Jurisdiction, the invalidity of any such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained, provided, however, that the invalidity of any such covenant, condition, or provision does not materially prejudice either party hereto in its respective rights and obligations contained in the valid covenants, conditions or provisions in this Agreement and lease. 16.5 NO EXCLUSIVE RIGHTS. It is understood and agreed that nothing contained herein shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 (a) of the Federal Aviation Act of 1958. 16.6 RESERVATION. The LESSOR reserves the right to further develop or improve the Leased Premises subject to the provisions of Article 13. 16.7 AMENDMENT. This Agreement may not be amended or modified without mutual written agreement between LESSOR and LESSEE. 16.8 EQUAL OPPORTUNITY. LESSEE assures that it will not discriminate against any person on the basis of race, creed, color, religion, sex, national origin or condition of disability in connection with LESSEE'S use and occupancy of the Leased Premises to the extent that such discrimination would violate applicable state or federal laws. ARTICLE 17. NOTICES Notices to LESSOR provided for herein shall be sufficient if sent by registered or certified mail, addressed to: LESSOR: City of Wichita Falls LESSEE: Choice Wireless L.C., dba Attn: City Manager AMERILINK WIRELESS P.O. Box 1431 1501 Midwestern Pkwy, Ste. 105-B Wichita Falls, Texas 76307 Wichita Falls, Texas 76302 ARTICLE 18. SIGNATURES IN WIT'NESS WHEREOF, the parties have caused this Agreement to be executed in several counterparts, each of which shall constitute an original, as of the date first above written. ATTEST: CITY OF WICHITA FALLS, LESSOR By: City Clerk Name: Darron J. Leiker Title: City Manager CHOICE WIRELESS, L.C. dba AMERILINK WIRELESS,LESSEE By: Name: Alan L. Rohmer Title: President Attachment 1 page 1 City Of Wichita Falls Tower FCC# 1242776 / Proposed Installation of Choice wreless Equipment r' City of Wichita Falls Existing Transmitter Building --�' N � � 'I b I Exis6ng Meter Loop � I � I � I � I��b j i � BTS BTS � ^`�+ I � � � L-------- ---------------� Note 4 Note 1 1. Install both Nortel S12000 BTS's begnning 4' east of tower; each pad will have 4 legs buried approx 24 inches deep with concrete; this will leave pad's about 12 inches above ground. Install approximately 17' of ice bridge �4" wide) with a minimum of 5- 3" pipes � schedule 40. 2. Install 3 each of ALT - Knock Down Sector Frame 10' - part # 2116-KD-10 to the 280' level and orientate the faces to 10°, 130° and 250°. Each sector frame will have 2 panel antenna's (EMS RR65-19-OODP) and 1- LGP 18601 tower mounted amplifier. 3. Install 6-RFS 1 5/8 inch foam filled coax up the NE face of tower to the 280' AGL using existing mounting holes for snap-in's. Each coax will be grounded top, middle and bottom to 12" installed ground bars connected with #2 insulated THHN copperwire running the 280' distance. 4. Electrical: We will need a separate meter loop installed and coordinated with Oncor. Choice will install an electrical power distribution bax (L x W x H! 53" x 12" x 60") in order to provide a 240 VAC 50 amp circuit to both Nortel BTS's.. Attachment 1 page 2 i , �,�.,.� 4 y �� 1 Nortel S12000 Base Station Physical (L x W x H) : 45" x 53" x 76" Electrical Required: 240 volts 50 amps Telco : T-1 line Weight - 1256 Ibs. fully equiped. 3 ^��.• ''� Powerwave Twin Tower Mount ed Amplifier : a Part Number- LGP78601 �""""�7�" " Up-link irequeroy : 1850 - 1910 MHz a Down-Ifnk frequency : 1930-1990 MHz Gain -12dB j Size, WxHxb 6.7inx10.7inx2.'Iin Weight - 9.9 Ibs _ �. 2116KD-10-2-7210' Knock-Down Universal Sector Frame • with Single Sway Bar Support - Includes (2 ) 72" Antenna ` Mount Pipes ' Weight- 452 Ibs . EMS Wireless RR65-1900DP Dual Polarization Panel Antenna } Frequecy - 1850 MHz - 1990 MHz Azimuth Beamwidth - 65 ' Elevation Beamwidth - 4.5° J� Gain - 18.5 dBi Power - 250 W atts C W • Dimensions (L x W x D) - 72 in x 8 in x 2.75 in � Rated Wind Velocity- 150 mph Weight with mounting brackei - 26 Ibs , :P � Attachment 1 page 3 Proposed Coax Placement on Wichita Falis Transfer StationTower Existing Coax N � � C�� ` �� Fa � � / Choice Wireless Proposed 6 coax runs stacked �. �� ,�� ;o�i � �' � , �:� a � ��' � � � � .i€; ��' M w ,�. �: . :�.�, '�` � �:. � ;�: „� ;' Y.. F a' � E � ,.y: . . . . . .,.. Exhibit B 13 Pages (to include 3 LEASE AGREEMENT BETWEEN Attachments) THE CITY OF WICHITA FALLS, TEXAS AND CHOICE WIRELESS, L.C. THIS LEASE AGREEMENT made and entered into this day of 2008, by and between the City of Wichita Falls, Texas, a municipal corporation situated in Wichita County, Texas, hereinafter called the LESSOR, and CHOICE WIRELESS, L.C., a Texas limited liability company dba AMERILINK WIRELESS, hereinafter called LESSEE; WITNESSETH WHEREAS, the LESSOR owns property and structures situated in Wichita County, Texas; and, WHEREAS, LESSEE is engaged in the business of providing wireless communication services; and, WHEREAS, LESSEE intends to lease from LESSOR for communication purposes the use of certain property and the structures thereon located at 509 Beverly Street known as the Beverly & Seymour Hwy. Water Tower, upon the terms and conditions hereinafter set forth; NOW, THEREFORE, LESSOR and LESSEE agree as follows: ARTICLE 1. TERM 1.1 TERM. The term of this Agreement shall commence upon execution hereof and shall continue thereafter for a term of five (5) years, unless sooner terminated as hereinafter set forth. 1.2 OPTION TO EXTEND. LESSEE shall have the option to extend this Agreement for one (1) additional five (5) year term. LESSEE must give LESSOR written notice of its intention to extend this Agreement not less than one hundred twenty (120) days prior to the expiration of the initial term or any extended term of this Agreement. ARTICLE 2. LEASED PREMISES 2.1 USE OF LEASED PREMISES. Prior to installing their antenna/dish LESSEE must submit written plans and/or sketches from entry of their cable on LESSOR'S property, including the route, overhead or underground, the up leg to the antenna/dish location and the proposed method of fixing the antenna/dish to the water tower. All cables, wiring and attachment mechanisms must be approved and must otherwise comply with the City's Electrical Code. LESSOR shall bear no liability for any damages to any cable installed due to routine maintenance to leased facilities. LESSOR grants unto LESSEE use of the structures and property as more particularly described in "Attachment 1" hereto (reference to which is made for all purposes as if said Attachment 1 were set forth herein) for the purposes of constructing, installing, operating, maintaining, repairing. inspecting, replacing and removing transmit and receive antennas, microwave antennas and associated mechanical and electrical equipment, cables and hardware on structures owned by LESSOR and described in "Attachment 1" (hereinafter Leased Premises), and for such other purposes as may be necessary or convenient for the full enjoyment of the lease herein granted. As to each site, LESSEE, following LESSOR'S approval, shall be permitted to use the highest location then available subject to the limitations imposed by the Federal Communications Commission, LESSOR and other applicable governmental authority, LESSEE have the right to install six (6) antennas and six (6) coaxial cables including the appropriate hardware necessary to properly affix said equipment on or at the facility as further described and specified in Attachment 1. In addition, LESSEE, subject to LESSOR approval as provided herein, shall have the right to install its wireless equipment cabinet(s) and associated power and telco enclosures as required by industry and or local standards also speci6ed in "Attachment 1". For purposes of performing the rights granted to LESSEE hereunder LESSEE shall have restricted access to the leased premises in accordance with the Homeland Security Laws. LESSEE shall notify LESSOR in writing of the persons authorized to enter the property and entry shall be restricted to those persons. The Leased Premises provided for in this Section shall not be used by any person engaging in any activity or performing any act or furnishing any service for or on behalf of LESSEE that LESSEE is not authorized to engage in or perform under the provisions hereof unless expressly authorized by LESSOR. 2.2 ADVERTISING AND SIGNAGE ON LEASED PREMISES. LESSEE shall not have the right to install or operate any advertising signs representing its business on the Leased Premises. ARTICLE 3. RENTALS 31 RENTALS. LESSEE agrees to pay LESSOR for the use of the Leased Premises hereunder monthly rentals of Twelve Hundred Dollars ($1,200.00) per month or the equivalent thereof payable as follows: a) At the end of each calendar month LESSEE shall pav LESSOR the rentals incurred bv LESSEE durin� the calendar month which shall be paid bv LESSEE within thirtv (30) davs of the end of the month Pavments for aartial calendar months shall be prorated accordine to the actual number of davs• b) The rentals required hereunder shall not commence until LESSEE actuallv be�ins installation un der this Agreement or ninetv (90) davs from the date of execution of this Agreement, wh�chever �s earher c) The monthlv rental rate or eauivalent thereof, shall increase to Thirteen Hundred E�ghtv Dollars ($1,380 00) durin� the first renewal oation period of five vears. 3.2 PAYMENTS. All payments required of LESSEE by this Agreement shall be made by check, cash or other immediately available funds mailed or delivered to the following address below; or to such other address as LESSOR may designate in writing: City of Wichita Falls Attn: Finance Dept. P.O. Box 1431 City of Wichita Falls, Texas 76307 3.3 ADDITIONAL AND ALTERNATE SITES. LESSOR and LESSEE acknowledge that the efficacy of a particular site for LESSEE'S purposes and the effect of LESSEE'S operations on existing uses of a particular site cannot be predicted with certainty. No additional sites wi11 be permitted unless LESSOR approves in writing any additional sites for antennae, support buildings and access requested to be added by LESSEE other than those described in Attachment 1 attached and made part of this Agreement. 3.4 LATE PAYMENT CHARGE. Other remedies for nonpayment notwithstanding, if the monthly rent payment or the eyuivalent thereof is not received by LESSOR on or before the thirtieth (30th) day following receipt by LESSEE of LESSOR'S statement of rentals, then a late payment charge of five percent (5) of such past due amount shall become immediately due and payable in addition to all other amounts owed under this Agreement. ARTICLE 4. LESSORS RIGHT TO ENTER LESSEE'S PREMISES LESSOR and its authorized officers, employees, contractors, subcontractors, and other representatives shall have the right to enter upon the Leased Premises for the following purposes: 4.1 To inspect the Leased Premises to determine whether the LESSEE has complied and is complying with the terms and conditions of this Agreement. 4.2 To perform maintenance and make repairs and replacements to the Leased Premises in any case where the LESSEE is obligated to repair or maintain and has failed after written notice so to do, in which event the LESSEE shall reimburse the LESSOR for the cost thereof promptly upon written demand. 4.3 To perform maintenance and make known repairs and replacements to the Leased Premises in any case where the LESSOR deems necessary. 4.4 In the exercise of the LESSOR'S police power. No such temparary entry by or on behalf of the LESSOR shall cause or constitute a termination or interference with LESSEE'S quiet enjoyment of the Leased Premises. In the exercise of its rights hereunder LESSOR shall make reasonable efforts to avoid unnecessary or excessive interference with LESSEE'S quiet enjoyment of the Leased Premises. ARTICLE 5. DAMAGE OR DESTRUCTION OF LEASED PREMISES If the Leased Premises or any portion thereof shall be partially damaged by fire, the elements, the public enemy or other casualty, but not rendered unusable, the same shall be repaired by LESSEE at its own expense, and rent shall be paid as agreed upon by this Agreement, if the damage shall be so extensive as to render the Leased Premises or any portion thereof unusable, LESSEE shall have the option of terminating this Agreement or repairing the Leased Premises or any portion thereof at its own cost and expense. The damages mentioned here in is limited to LESSEE's equipment. However, if any damages to municipal equipment caused by the LESSEE's equipment then the LESSEE shall be responsible those cost of repairs. In the event that the Leased Premises or any portion thereof is rendered unusable and LESSEE has elected to repair it at its own cost and expense, then there shall be an abatement of the rentals due hereunder for the period beginning from the date the Leased Premises or any portion thereof was rendered unusable until such time as the Leased Premises is rendered usable. ARTICLE 6. INDEMNITY AND INSURANCE LESSEE agrees to indemnify and hold LESSOR harmless from and against all liability for injuries or death to persons or damage to property caused by LESSEE'S use of the Leased Premises or that of its agents or employees. LESSOR shall give to LESSEE prompt and timely notice of any claim made or suit instituted which in any way, directly or indirectly, contingently or otherwise, affects or might affect LESSEE, and LESSEE shall have the right to compromise and defend the same to the extent of its own interest, but not to the detriment of LESSOR. LESSEE shall, at its own expense, keep in force insurance of the foilowing types and in not less than the following amounts issued by a company or companies with an A.M. Best rating of B+ or better against all liabilities for accidents arising out of or in connection with LESSEE'S use of the Leased Premises, and shall furnish to LESSOR certificates evidencing such insurance, and the LESSOR shall be furnished with a certificate to the effect that such insurance shall not be canceled or materially changed without thirty (30) days written actual prior notice to the LESSOR, to-wit: Comprehensive Public Liability Insurance $1,000,000 per person Comprehensive Pro�e Dama�e Insurance $1,000,000 per occurrence Statutory Workers Compensation Insurance Including a waiver of subrogation in favor of LESSOR Automobile liabilitv $250,000 bodily injury each person $500,000 bodily injury each occurrence $100,000 property damage each occurrence Coverage for explosion, collapse and underground property hazards and contractual liability coverage cannot be excluded. LESSEE will assume all liability for LESSEE'S independent contractors. A certificate of insurance in compliance with the above shall be placed on file with LESSOR prior to execution of this Agreement. ARTICLE 7. SURRENDER OF POSSESSION Upon the expiration or other termination of this Agreement or any renewal thereof, LESSEE'S right to use the Leased Premises shall cease and LESSEE shall forthwith, upon such expiration or termination, surrender the same. Except as otherwise provided in this Article, all fixtures, improvements, equipment and other property brought, installed, erected, or placed by LESSEE in, on or about the Leased Premises shall be deemed to be personal property and remain the property of LESSEE and LESSEE shall have the right at any time during the term of this Agreement, or any extension thereof, and for an additional period of sixty (60) days after the expiration or other termination of the Agreement, to remove any or all of its property from the Leased Premises, provided LESSEE is not in default in its payments to LESSOR hereunder, and subject further to LESSEE'S obligation to repair all damage, if any, resulting from such removal. Any and all property not removed by LESSEE prior to the expiration of the aforesaid sixty (60) day period shall thereupon become a part of the Leased Premises and title thereto shall thereupon vest in LESSOR free of any liens or encumbrances, except that such sixty (60) day period may be extended by LESSOR at its discretion. In the event LESSEE cannot reasonably complete the removal of LESSEE'S property within sixty (60) days, this Agreement shall be extended more than sixty (60) days for the removal of such property and rental shall be paid at the existing rates for the term of the extension beyond sixty (60) days required to remove said property, as to each site for which the extension is granted. ARTICLE 8. ASSIGNMENT AND SUBLETTING LESSEE shall not, at any time, assign this Agreement or sublease said Leased Premises without the consent in writing of LESSOR; provided that the foregoing shall not prevent the assignment of this Agreement or any of the rights and privileges granted LESSEE hereunder, to any corporation, limited liability company, or other legal entity with which LESSEE may merge or consolidate, or which may succeed to the ownership of LESSEE by reorganization or otherwise. Should a merger or succession of ownership occur, LESSEE wiil give LESSOR prompt notice as herein provided. ARTICLE 9. QUIET ENJOYMENT LESSOR agrees that, on payment of the rent and performance of the covenants and agreements on the part of LESSEE to be performed hereunder. LESSEE shall peaceably have and enjoy the Leased Premises and all the rights and privileges granted herein. ARTICLE 10. RULES AND REGULATIONS LESSEE shall observe and obey all rules and regulations governing the conduct and operation of the Leased Premises promulgated from time to time by LESSOR, which are required for the prudent and efficient operation of the Leased Premises and are not Inconsistent with the exercise by LESSEE of any right or privilege granted to it hereunder, or not inconsistent with the rules, regulations or procedures of any Federal or State agency. LESSEE shall not use or permit the use of the Leased Premises or any part thereof or do or permit its officers or employees or any other person over whom it has control to do any act or thing on the Leased Premises in violation of any present or future laws, ordinances, rules or regulations of the LESSOR or any other public or governmental authority. LESSEE shall obtain and conform to all governmental and local licenses and permits necessary for the conduct of its activities. LESSEE shall, at all times, maintain the Leased Premises in compliance with any and all present and future laws, ordinances and general rules or regulations of the LESSOR, State of Texas and Federal Government. ARTICLE 11. RESERVATIONS BY LESSOR The LESSOR reserves the right and authority to temporarily require LESSEE to remove all or a portion of its property from the Leased Premises when in LESSOR'S sole opinion exercised in good faith such removal is necessary in order for LESSOR to make repairs or improvements to the Leased Premises. LESSOR shall give LESSEE sixty (60) days prior written notice of any decision which requires LESSEE to remove its property from the Leased Premises. In the event that there is a delay of seven (7) days or more in returning the Leased Premises to operational condition or the Leased Premises are removed from service indefinitely, LESSEE hereby acknowledges that its sole remedy for any damages or losses occasioned by such delay or removal shall be the abatement of the rental payments provided for above. The rental abatement shall be for the period beginning after the Leased Premises has been out of service for seven (7) days and shall remain in effect until such time as the Leased Premises is returned to operational condition, in the event LESSOR shall determine that LESSEE shall not be allowed to reinstall its equipment on the Leased Premises, or LESSEE shall determine that the delay beyond seven (7) days is unacceptable to LESSEE, then and in either event this Agreement as to that portion of the Leased Premises involved shall terminate upon receipt of written notice, and neither LESSOR nor LESSEE shall be entitled to any damages as a result thereof. At the option of LESSEE and to the extent facilities are available to LESSOR, LESSEE may install and operate a temporary tower or facilities during the duration of repairs and improvements by LESSOR, and rent shall be abated as to that site for and during the term of the repairs and improvements. ARTICLE 12. OBLIGATIONS OF LESSEE To maintain the Leased Premises, the LESSEE shall be obligated to do the foliowing: 1) Furnish all improvements necessary to make the Leased Premises physically and structurally safe to accommodate LESSEE'S equipment. 2) LESSEE will promptly notify LESSOR when damage occurs to the Leased Premises and when maintenance is required. LESSEE shall reimburse the LESSOR for the cost of repairing, replacing, or rebuilding any damages to the Leased Premises caused by the acts or omissions of the LESSEE or its officers, employees, or agents. 3) LESSEE will promptly pay for all utilities supplied as a result of LESSEE'S use of the Leased Premises. ARTICLE 13. ALTERATIONS AND IMPROVEMENTS Whenever consistent with this Agreement, LESSEE shall have the right to construct and install, at its sole expense, improvements on the Leased Premises as LESSEE deems to be necessary for its operations; provided, however, that the plans and specifications, location, and construction schedule for such improvements shall have been approved by LESSOR in writing prior to the commencement of any and all construction or installation. Any work associated with such construction or installation shall not interfere with the operation of the Leased Premises. LESSEE shall deliver to LESSOR reproducible "as built" drawings of LESSEE improvements and additions no later than thirty (30) days following the substantial completion of any such improvements and additions. LESSEE will not alter or modify the Leased Premises without prior written approval of LESSOR. LESSEE shall keep the Leased premises free and clear of any and all liens in any way arising out of any alteration, modification, or use thereof by LESSEE. Any construction or installation for improvements made by LESSEE on the Leased Premises shall be at the sole expense of LESSEE and shall be in accordance with all applicable State and Local Codes and Laws and subject to inspection by LESSOR. All improvements made to the Leased Premises and additions and alterations thereto made by LESSEE shall remain the property of LESSEE until termination of this Agreement or any extension thereo£ In addition, any improvements of LESSEE shall remain the property of LESSEE, as more completely set forth and subject to the requirements of Article 7, above. LESSEE'S equipment shall not interfere with or disrupt LESSOR'S equipment and/or city-wide radio system(s) or LESSOR can require immediate removal of LESSEE'S equipment ARTICLE 14. DEFAULT AND TERMINATION 14.1 LESSEE'S DEFAULT AND DEFAULT NOTICES. LESSOR may cancel this agreement if LESSEE fails to pay its rental obligations or equivalent thereof under this Agreement or if LESSEE abandons or ceases to use the Leased Premises far a continuous period of thirty (30) days, or if LESSEE fails to fulfill any other material obligation under this Agreement. Should LESSOR elect to declare LESSEE in default it will give LESSEE written notice of the condition of default. If LESSEE fails to pay any amount due to LESSOR within fifteen (15) days after notice of default, or if LESSEE fails to cure any other condition of default within thirty (30) days after notice of default, LESSOR may terminate this Agreement. If a default is not curable LESSOR may immediately terminate this Agreement without giving any prior written notice of default. The following shall be "events of default" under this Agreement constituting a breach of the Agreement: a) If the rentals or other monetary payments that LESSEE herein is obligated to pay, or any part thereof, shall become past due or in arrears. b) If LESSEE files a voluntary petition in bankruptcy, or makes a general assignment for the benefit of creditors, or if LESSEE is adjudicated as bankrupt. c) The taking of jurisdiction of LESSEE or its assets by a court of competent jurisdiction pursuant to proceedings brought under the provisions of any federal reorganization act. d) The appointment of a receiver or a trustee of LESSEE'S assets by a court of competent jurisdiction ar a voluntary agreement with LESSEE'S creditors, and the same is not removed in ninety (90) days, e) If any act occurs that deprives LESSEE of the rights, power and privileges necessary for the proper conduct and operation of its business. � If LESSEE abandons and fails to use the Leased Premises for a period of thirty (30) days at any one time, except when such abandonment and cessation are due to LESSOR'S default or fire, earthquake, strike, governmental action, ar other similar causes beyond LESSEE'S control g) If LESSEE uses or permits the use of the Leased Premises at any time for any purpose for which the use thereof is not authorized by this Agreement, or permits the use thereof in violation of any law, rule or regulation. h) If LESSEE assigns or sublets this Agreement in violation of Article 8 above. 14Z LESSOR'S REMEDIES. If any default by LESSEE shall continue uncured following notice of default for the period applicable to the default under the provisions of this Agreement, or if the default is not curable, LESSOR may at its election terminate this Agreement by giving LESSEE notice of termination. No acts by LESSOR other than giving written notice to LESSEE shall terminate this Agreement. Acts of the lack of proper maintenance and efforts to relet the Leased Premises shall not constitute a termination of LESSEE'S right to possession. On provision of written notice and expiration of any applicable right to cure, all LESSEE'S rights in the Leased Premises shall terminate, except as provided in Article 7. Termination under this paragraph shall not relieve LESSEE from the payment of any sum due LESSOR or from any claim for damages previously accrued or then accruing against LESSEE. Notwithstanding any election by LESSOR not to terminate this Agreement, LESSOR may at any time thereafter elect to terminate this Agreement for any previous breach or default hereunder not previously waived by LESSOR in writing, to terminate this Agreement for any previous breach or default hereunder by LESSEE which remains uncured, or for any subsequent breach or default. LESSOR shall be entitled at its election to damages and shall have ali the remedies available by law. 14.3 NO REMEDY EXCLUSIVE. No remedy conferred herein upon or reserved to LESSOR or to LESSEE is intended to be exclusive unless expressly made exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power that may be exercised from time to time and as often as may be deemed expedient. In order to entitle LESSOR ar LESSEE to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be required in this Agreement or by law. 14.4 WAIVER AND VOLUNTARY ACTS. No waiver of any breach or default shall constitute a waiver of any other breach or default, whether of the same or any other term, agreement or condition. No waiver, benefit, privilege ar service voluntarily given or performed by either party shall give the other contractual right by custom, estoppels or otherwise. The subsequent payment or acceptance of rent or equivalent thereof, or other money payments pursuant to this Agreement shall not constitute a waiver of any preceding breach or default by LESSEE or LESSOR (other than default in the payment of a particular rental or other payment so accepted) regardless of LESSOR'S or LESSEE'S knowledge of the preceding breach at the time of paying or accepting the rental or other payment. Acceptance of rent or other money payments after termination shall not constitute a reinstatement, extension or renewal of the Agreement or revocation of any notice ar other act by LESSOR. 14.5 ADDITIONAL REMEDY IN BANKRUPTCY. The parties hereto expressly agree, notwithstanding anything in this Agreement to the contrary, that in the event that LESSEE becomes a debtor under any chapter of the Bankruptcy Code and this Agreement has not been terminated prior to the commencement of LESSEE'S bankruptcy proceedings, all rents, payable by LESSEE to, or on behalf of LESSOR hereunder, whether or not expressly denominated as rent, shall constitute rent solely for the purpose of calculating LESSOR'S damage pursuant to Section 502(b) (6) or any similar provision of the Bankruptcy Code, 11 U.S.C. Section 502(b) (6) in the event that this Agreement is rejected in such bankruptcy proceeding. 14.6 EVENTS PERMITTING TERMINATION OF AGREEMENT BY LESSEE. LESSEE may cancel and terminate this Agreement after the happening of one of the following events, by giving LESSOR thirty (30) days written notice: e) The breach by the LESSOR of any of the covenants or agreements herein contained to be performed by the LESSOR and the failure by the LESSOR for a period of thirty (30) days after receipt of written notice of the existence of such breach to remedy the breach. fl The assumption by the United States Government or any authorized agency thereof of the use or operation of the common use facilities of the LESSOR or any substantial portion thereof in such a manner as to substantially restrict LESSEE from operation for a period of thirty (30) or more days; g) Governmental authority necessary for construction and/or operation of the Leased Premises or LESSEE'S business cannot be obtained or is not for any reason maintained; or h) LESSEE determines in good faith that the Leased Premises are not appropriate for its operations for technologicai reasons, including, but not limited to signal interference. 14.7 CANCELLATION BY LESSOR AND LESSEE. LESSOR or LESSEE may cancel and terminate this Agreement at any time upon giving one hundred eighty (180) days prior written notice of such cancellation to the other party. ARTICLE 15. FORCE MAJEURE Except as herein provided, neither LESSOR nor LESSEE shall be deemed to be in default hereunder if either party is prevented from performing any of the obligations hereunder by reason of strikes, boycotts, labor disputes, embargoes, shortages of energy or materials, acts of God, acts of public enemy, acts of superior governmental authority, weather conditions, riots, rebellion, or sabotage, or any other circumstances for which it is not responsible, or which are not within its control. Under no circumstances shall the occurrence of any event provided for in this Article excuse LESSEE from paying rentals to LESSOR pursuant to the terms of this Agreement. ARTICLE 16. GENERAL PROVISIONS 16.1 THIRD PARTY BENEFICIARY RIGHTS. Each of the parties has entered into this Agreement and lease solely for its own benefit, and this Agreement does not and is not intended to create any third party beneficiary rights. 16.2 HEADING. The headings of the various titles and sections of this Agreement and lease are merely for the convenience of reference. 16.3 LAW TO BE APPLIED. This Agreement is to be read and construed in accordance with the laws of the State of Texas and fully performed in W ichita County, Texas. 16.4 SEVERABILITY. In the event any covenant, condition or provision herein contained is held to be invalid by any court of competent Jurisdiction, the invalidity of any such covenant, condition or provision shall in no way affect any other covenant, condition or provision herein contained, provided, however, that the invalidity of any such covenant, condition, or provision does not materially prejudice either party hereto in its respective rights and obligations contained in the valid covenants, conditions or provisions in this Agreement and lease. 16.5 NO EXCLUSIVE RIGHTS. It is understood and agreed that nothing contained herein shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308 (a) of the Federal Aviation Act of 1958. 16.6 RESERVATION. The LESSOR reserves the right to further develop ar improve the Leased Premises subject to the provisions of Article 13. 16.7 AMENDMENT. This Agreement may not be amended or modified without mutual written agreement between LESSOR and LESSEE. 16.8 EQUAL OPPORTUNITY. LESSEE assures that it will not discriminate against any person on the basis of race, creed, color, religion, sex, national origin or condition of disability in connection with LESSEE'S use and occupancy of the Leased Premises to the extent that such discrimination would violate applicable state or federal laws. ARTICLE 17. 1�10TICES Notices to LESSOR provided for herein shall be sufficient if sent by registered or certified mail, addressed to: LESSOR: City of Wichita Falls LESSEE: Choice Wireless L.C., dba Attn: City Manager AMERILINK WIRELESS P.O. Box 1431 1501 Midwestern Pkwy, Ste. 105-B Wichita Falls, Texas 76307 Wichita Falls, Texas 76302 ARTTCLE 18. SIGNATURES IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in several counterparts, each of which shall constitute an original, as of the date first above written. ATTEST: CITY OF WICHITA FALLS, LESSOR By: Ciry Clerk Name: Darron J. Leiker Title: City Manager CHOICE WIRELESS, L.C. dba AMERILINK WIRELESS, LESSEE By: Name: Alan L. Rohmer Title: President Attachment 1 page 1 Beverly Street Water Tank / Proposed Choice N Wireless Installation r -----� . I I ; I I ' I I I I 3-Antenna's mounted at 70°, 130° and 250° � Old Underground � O � Water Storage ( � � � I I Co�c up this , : leg I I I I : � �--------- Service Pole 12' I I }i �� 1 � �.. r.._ ,.._ _. � N Valv ` Pum� Existing Oirt Road 1. Choice Wireless proposes to install Nortel BTS pad (L45" x W53" x H67") at location noted above, 4 legs of base to be buried 24" deep and concrete placed in each hole for stabilit�r. Pad will sit approx 12" from ground level. We will drive ground rod and common to ground plane. 2. Add 6- RFS 1 5/8" coax up nearest leg (SE) to caiwalk and around to each panel antenna. Coax will be supported up water tank leg and along caiwalk using stainless steel hardware. Powerwave tower mounted amplifier LGP18601 used for each antenna. All coax and TMA's will be grounded with THHN #2 insulated wire near caiwalk and below near BTS on 12" ground bars. 3. Antenna's- (Part # EMS RR65-19-OODP) 6 antenna's total- 2 each installed on catwalk using pipe to pipe mounts pointed at 10°, 130° and 250°. Powerv�ave tower mounted amplifier LGP18601 used for each antenna. 4. A new meter loop will need to be instal�d and coordinated through ONCOR, a service pole with meter base! disconnect is proposed at location above (� ). Choice Wireless will install a 240 VAC 200 amp main panel with locking doors near BTS to provide 240VAC 5C�mp service to Nortel BTS. Te�o will be coordinated with SW Bell to provide comm line to Nortel BTS per local code. Attachment 1 page 2 �' �. , �: �, � ; �< , ` ��; ' � � � � 3�*� ,�;� r � r �, � � ��, .-� Y f Typlcal Nortel 38000 mounted on base with electrical cabinet on rear. � � � � �� 4 V , � � � ��,�� ., � � �� ;s �� _ �� : -;� � ir �,�,�_ . - C � � ,,,��'�s r �.r+ � �* �< � a fi� , + � 7 k � :f�� . #' . ..�5';.. sy � 1 Typical Coax installation on water tank leg with grounding. __ � :�� . T' � •. , Attachment 1 page 3 Nortel S8000 Base Station with Pad ; � Physical (L x W x H) : 45" x 53" x 67" Electrical Required: 240 volts 50 amps � Telco : T-1 line Weight - 750 Ibs Powerwave Twin Tower Mount ed Amplifier : Part Number- LGP18601 Up-link frequercy : 1850 - 1910 MHz Down-link frequency : 1930-1990 MHz Gain • 12d8 Size, WxHxD 8.7inx10.7inx2.7in � Weighl - 9.9 Ibs F i`„�,.+.w �� EMS Wireless RR65-1900DP Dual Polarization Panel Antenna Frequecy - 1850 MHz - 1990 MHz Azimuth Beamwidth - 65° Elevation Beamwidth - 4.5° Gain - 18.5 dBi Power - 250Watts CW Dimensions (L x W x D) - 72 in x 8 in x 2.75 in Rated Wind Velocity - 150 mph Weight with mounting bracket - 26 Ibs � ,�