IQ Vl "' )-~ g, ~ ro ro 0 ~ '"' ~ c J> ~ a. ro a.-· '" -· :::1 ~ :::> 0 ' c. ::J "' 0. ro ~ :::> n ~ ;;;-'" )> J CJQ ~ ro ro 3 ro :::> ~ ::!:! :::> '" ,_. '"'1'0 L.. w ''-'?-:S'-J Title -19- EXHIBIT A [Attach Floor Plan of the Leased Premises] 0A963100204 Exhibit A 0::: 0 0 __J u... f(/) 0::: u... 3202 3204 3206 3208 3210 3212 3214 3216 3218 3220 4200 MEZZ MEZZ MEZZ MEZZ MEZZ MEZZ IIEZZ IIEZZ MEZZ IIEZZ IIEZZ I n Jl r1 1 Jl r 1 4201 ~ MEZZ ----"l_ 4224 4205 "----LJ-MEZZ MEZZ 4207 r4 203 r MEZZ !-MEZZ L.J L.J 4225 LOFT 4226 ~ IIEZZ . f-~ MEZZ 4227 4228 . LOFT r 4272 LOFT f-4229 ~ LOFT 4230~ MEZZ 1-4270 • LOFT I 4232 4231 IIEZZ _r-[ LOFT 4268 SATELLITE DISH LOCATION rl rl LOFT ...-r--L 4241 MEZZ [ ~ 4245 4234 IIEZZ Lr" IIEZZ 4266 LOFT !:>< lXI l~ .l L~ L n:r:'t-4262 4260 4258 4256 4254 LOFT LOFT LOFT LOFT LOFT 4252 4250 4248 4246 4244 4242 4240 42J8 I h LOFT IIEZZ MEZZ IIEZZ IIEZZ MEZZ MEZZ II Ell IIEZZ ~ ~ ~ ~ I I I I BUILDING B (5th FLOOR) EXHIBIT "8" Lots I, 2 and 4, Block 8 of Addison Circle Phase I, an addition to the Town of Addison, Dallas County, Texas, pursuant to Final Plat thereof recorded in Volume 97101, Page 5801, Map Records of Dallas County, Texas. DA971840088 070397 vi 186:30!2.{;5 LICENSE AGREEMENT THIS LICENSE AGREEMENT (the "Agreement") is entered into this 12th day of June, 1997, by and between ADDISON CIRCLE ACCESS, INC., a Texas corporation ("Access") and MUL TITECHNOLOGY SERVICES, L.P., a Texas limited partnership ("MTSLP"). W I I N E S S E I H: WHEREAS, MTSLP is in the business of providing various technology based telecommunication and information services (the "Services") to high density properties; WHEREAS, MTSLP desires to be able to provide the Services to tenants and residents of buildings built on the real property located in the Town of Addison, Texas ("Addison") which is described on Exhibit "A" hereto (collectively referred to as "Addison Circle"); WHEREAS, Addison Circle will be developed in a number of phases which may be owned by different owners; WHEREAS, in order to serve Addison Circle MTSLP needs space within which to place a portion of its equipment necessary to provide Services to Addison Circle and the ability to place wires and other equipment in public rights-of-way which traverse Addison Circle; WHEREAS, Access has entered into a Lease Agreement (the "Lease") with Addison Circle One, Ltd., a Texas limited partnership (the "Partnership") for the lease of space (the "Equipment Room") within improvements owned by the Partnership, which Lease is attached hereto as Exhibit "B" and incorporated herein by reference for all purposes; WHEREAS, Access has entered into a Streets Use and Rental Agreement (the "Street Use Agreement") with Addison relating to the use of public rights-of-way, which Street Use Agreement is attached hereto as Exhibit "C" and incorporated herein by reference for all purposes; WHEREAS, the Partnership and MTSLP have entered into that certain MTSLP Services Agreement (the "Services Agreement") of even date herewith; and WHEREAS, Access has agreed to license MTSLP to use certain rights of Access pursuant to the Street Use Agreement to enable MTSLP to provide Services to Addison Circle. NOW, THEREFORE, for an in consideration of the premises and and the sum of$10.00 paid by MTSLP to Access, and other good and valuable consideration, the parties hereby agree as follows: I. License Section 1.1 License. Access hereby grants to MTSLP the nonexclusive right to use the rights, privileges, duties and obligations granted to Access pursuant to the terms of the Street Use I. License Section l.! License. Access hereby grants to MTSLP the nonexclusive right to use the rights, privileges, duties and obligations granted to Access pursuant to the terms of the Street Use Agreement to the extent necessary to provide Services to persons in Addison Circle, subject to the terms and conditions set out herein. Section 1.2 Compliance with Street Use A~~:reement. The provisions of the Street Use Agreement as they related to MTSLP's Services are fully incorporated into this Agreement. In exercising its rights hereunder, MTSLP shall in all respects comply with and be bound by the terms and conditions of the Street Use Agreement as it relates to MTSLP's Services. MTSLP hereby acknowledges that it has read and is familiar with the terms of the Street Use Agreement and this Agreement is expressly subject to all of the terms of the Street Use Agreement. Access agrees to timely comply with all of the terms and conditions of the Street Use Agreement, except to the extent of those obligations which MTSLP is required to perform hereunder. Section 1.3 Construction Activities. MTSLP shall not commence any construction or maintenance activities in any area governed by the Street Use Agreement until construction work plans and drawings have been approved by Access and Addison, which approval Access shall diligently pursue, time being of the essence. Section 1.4 Insurance. MTSLP shall obtain and maintain all insurance required to be obtained and maintained by Access pursuant to the Street Use Agreement, as it relates to MTSLP's Services, and all such policies shall name Access, Columbus Realty Trust ("Columbus") and Gaylord Properties, Inc. ("Gaylord") as additional insureds. Section 1.5 Records. MTSLP shall maintain all records relating to the provision of MTSLP's Services in Addison Circle pursuant to the Street Use Agreement and shall prepare and deliver to Access all reports and certifications with respect thereto required to be provided by Access to Addison pursuant to the Street Use Agreement as it relates to MTSLP's Services. Section 1.6 Required Payments. MTSLP shall pay to Addison all amounts required to be paid by Access to Addison pursuant to the Street Use Agreement as it relates to MTSLP's Services. Section L7 Indemnity. (a) MTSLP shall indemnify Access, Columbus and Gaylord and their officers, employees and agents against, and hold Access, Columbus and Gaylord and their officers, employees and agents harmless from, any and all liability, actions, causes of action, lawsuits, judgments, claims, damages, costs or fees, including reasonable attorney's fees, for any injury to or the death of any person or damage to or destruction of any property resulting from or based upon, in whole or in part, any act or omission of MTSLP, its officers, employees, agents, contractors, assignees, licensees, permittees, or subcontractors, save and except those caused by the intentional acts or gross negligence of Access, Columbus or Gaylord. The provisions of this Section shall survive the termination of this Agreement. The terms and -2- provisions contained in this Section are intended to be for the benefit of Access, Columbus and Gaylord and are not intended to be for the benetit of any third party. (b) Access agrees to indemnifY and hold MTSLP harmless from any claims (including reasonable attorneys' fees) for loss or damages attributable to the intentional acts or gross negligence of Access, its agents or employees. The provisions of this Section shall survive the termination of this Agreement. 2. :llim This Agreement shall commence on the date hereof and shall continue in full force and effect until the earlier to occur of (i) the termination of the Services Agreement, (ii) the termination of the Street Use Agreement, or (iii) the termination of this Agreement by either party pursuant to the terms hereof. Notwithstanding the termination of this Agreement, MTSLP shall be obligated to prepare and deliver to Access all reports required to be prepared by MTSLP hereunder for the period of time covered by this Agreement, and to pay to Addison all sums required pursuant to Section 1.6 hereof for the period of time covered by this Agreement. 3. Default and Remedies Section 3.1 Default. Either Access or MTSLP shall be in default pursuant to this Agreement upon the occurrence of one of the following events by or with respect to such party: (a) The failure to pay, when due, sums due unde~ this Agreement; (b) The breach of any provision of this Agreement. other than those specified in (a) above, or (c), (d) and (e) below; (c) The filing of a petition by or against such party under any section or chapter of the Bankruptcy Reform Act of 1986, as amended, or under any similar law or statute of the United States or any state thereof, provided the.same is not discharged or denied within sixty (60) days after the filing thereof with respect to any such involuntary filing against such party; (d) the adjudication of such party as bankrupt or insolvent in proceedings filed against such party under any section or chapter of the Bankruptcy Reform Act of 1986, as amended, or under any similar law or statute of the United States or any state thereof; (e) The appointment of a receiver or trustee for all or substantially all of the assets of such party, which appointment is not discharged within sixty (60) days after such appointment, or if such party shall consent or acquiesce to such· appointment. Section 3.2 Remedies. If either Access or MTSLP continues in default of this Agreement after receiving ten (I 0) days written notice to cure such default with respect to a -3- default under Section 3. lfa), or thirty (30) days written notice with respect to a default under Section 3 l(b), or upon the occurrence of a default by either party pursuant to Section 3.J(c) (d) ~. then the other party may terminate this Agreement and pursue any other remedies available to such party at law or in equity. 4. Miscellaneous Section 4. l Notices. All notices, demands, or other communications of any type (herein collectively referred to as "Notices") given by the Access to MTSLP or by MTSLP to Access, whether required by this Agreement or in any way related to the transactions contracted for herein, shall be void and of no effect unless given in accordance with the provisions of this Section 4. I. All notices shall be in writing and delivered to the person to whom the notice is directed, either in person (provided that such delivery is confirmed by the courier delivery service), or by expedited delivery service with proof of delivery, or by United States Mail, postage prepaid, as a Registered or Certified item, Return Receipt Requested. Notices delivered by personal delivery shall be deemed to have been given at the time of such delivery and notices delivered by mail shall be effective two (2) days following deposited in a Post Office or other depository under the care or custody of the United States Postal Service, enclosed in a wrapper with proper postage affixed and addressed, as provided below. Notice may additionally be provided by facsimile transmission so long as a copy of such notice is simultaneously forwarded · by one of the other means described above. Facsimile notice shall be effective upon receipt at the facsimile station indicated below. The proper address and facsimile number for MTSLP is: MultiTechnology Services, L.P. 1201 North Richardson Drive Suite 200 Richardson, Texas 75080 Attention: President Fax No. (972) 783-3099 The proper address and facsimile number for Access is as follows: Addison Access, Inc. c/o Columbus Realty Trust 15851 Dallas Parkway Suite 855 Dallas, Texas 75248 Attention: Chief Executive Officer Fax No. (972) 770-5109 Any party hereto may change the address for notice specified above by giving the other party ten (I 0) days' advance written notice of such change of address. -4- Section 4.2 Successors and Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, and permitted successors and assigns. The rights of MTSLP under this Agreement are not assignable and may not be otherwise conveyed without the prior written consent of Access and Addison, which shall be granted pursuant to the conditions set out in Section 4.6 of the Services Agreement. For purposes of this Section 4.2, Addison shall have the same rights in considering any such assignment or other conveyance as Client (as defined in the Services Agreement) has under Section 4.6 of the Services Agreement. Section 4.3 Govemini Law. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. Section 4.4 No Oral Modification. This Agreement may not be modified or amended, except by an agreement in writing signed by both Access~d MTSLP. Section 4.5 No Oral Waiver. The parties may waive any of the conditions conditions contained herein or any of the obligations of the other party hereunder, but any such waiver shall be effective only if in writing and signed by the party waiving such conditions or obligations. Section 4.6 Time of Essence. Time is of the essence of this Agreement. Section 4. 7 Attorneys' Fees. In the event it becomes necessary for either party hereto to file a suit to enforce this Agreement or any provisions contained herein, the party prevailing in such action shall be entitled to recover, in addition to all other remedies or damages, reasonable attorneys' fees and court costs incurred by such prevailing party in such suit. Section 4.8 Headings. The descriptive headings of the various Articles and Sections contained in this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. Section 4.9 Total A~:reemeot. This Agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the parties in connection therewith. No representation, warranty, covenant, agreement or condition not expressed in this Agreement shall be binding upon the parties hereto or shall affect or be effective to interpret, change or restrict the provisions of this Agreement. Section 4.1 0 Partial Invalidity. If any clause or provisions of this Agreement is or should ever be held to be illegal, invalid, or unenforceable under any present or future law applicable to the terms hereof, then and in the event, it is the intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, and that in lieu of each such clause or provision of this Agreement that is illegal, invalid, or unenforceable, there be added as a part of this Agreement a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable. -5- counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages. Section 4.12 Holidays. In the event that the date upon which any duties or obligations hereunder to be performed shall occur upon a Saturday, Sunday or legal holiday, then, in such event, the due date for performance of any duty or obligation shall thereupon be automatically extended to the next succeeding business day. EXECUTED to be effective as of the date first set out above. DA970080073 082297 v7 186:3012·96 ACCESS: ADDISON CIRCLE ACCESS, INC., a Texas corporation By: __ C0A----'-'"""""-'---------,-----Nam e:_:(..~..->\s5>..:L...;L-""-'u..i=:'~'-:..:'t...T?=.L-----Title: _____________ . MTSLP: MULTITECHNOLOGY SERVICES, L.P., a Texas limited partnership By: MultiTechnology Corp., a Delaware corporation By: __ ~~~~~;r-::::>........-rr~~!'::::..;:; j j)...=:;:::r--Name:.__J(fb'--~~-:.=;-r.:,,-../~v-gcn;p....!.F.-" • .:..:\-v~' '-1---Title:. __ _,C~, 0"'--'-' _,Qo<..L, --------6- EXHIBIT "A" Lots I, 2 and 4, Block B of Addison Circle Phase I, an addition to the Town of Addison, Dallas County, Texas, pursuant to Final Plat thereof recorded in Volume 97101, Page 5801, Map Records of Dallas County, Texas. DA971840088 070397 vi 186:3012·65 . IIBII EXHIBIT EQUIPMENT ROOM LEASE AGREEMENT between ADDISON CIRCLE ONE, LTD., a Texas limited partnership, as Landlord, and ADDISON CIRCLE ACCESS, INC., a Delaware corporation, as Tenant I. 20 30 4o 50 60 70 80 90 TABLE OF CONTENTS DEFINITIONS AND BASIC PROVISIONS GRANTING CLAUSE o o o 0 0 0 o o 0 0 0 0 0 0 o o 0 0 0 o o 0 o o 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 EARLY OCCUPANCY o o 0 o o o 0 o 0 0 o 0 0 0 0 0 0 0 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 RENTAL 0 0 0 0 0 o o 0 0 o o o o o 0 o 0 0 0 0 0 0 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o 0 0 0 0 0 0 0 0 0 0 0 3 USE 0 0 0 0 0 0 0 o o 0 0 0 o 0 0 0 o 0 0 o 0 0 0 0 0 o o 0 0 0-:-0 0 o o 0 0 0 o 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4 SERVICES TO BE PROVIDED BY LANDLORD 0 0 0 0 o 0 0 0 0 0 o 0 0 0 o 0 0 o 0 0 0 0 0 0 4 REPAIR AND MAINTENANCE , 0 0 0 o o o 0 0 0 o o 0 0 0 0 o 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4 FIRE AND OTHER CASUALTY 0 0 o o o o 0 0 0 o o 0 0 0 0 o o 0 0 0 0 0 0 0 o 0 0 0 0 0 0 0 0 0 0 4 COMPLIANCE WITH LAWS AND USAGE -0 0 0 0 0 o 0 0 0 o 0 0 o 0 o 0 0 0 0 0 0 0 0 0 0 0 0 '5 100 LIABILITY AND INDEMNITY o 0 o o 0 0 0 o o o 0 0 0 0 o o 0 0 0 0 0 0 0 _ 0 0 0 o 0 0 0 0 _ 0 _ _ 6 II. ADDITIONS AND FIXTURES 0 0 0 o 0 0 0 0 0 o 0 0 0 0 o 0 0 0-0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 : 0 0 0 7 120 ASSIGNMENT AND SUBLETTING 0 o o 0 0 0 0 o 0 0 0 0 o 0 0 0 o 0 0 0 0 0 0 0 _ 0 0 0 _ 0 0 _ _ 7 13° SUBORDINATION o 0 0 o o o o 0 0 0 o o o 0 0 0 o o o 0 0 0 o 0 0 0 o 0 0 0 o o 0 0 0 0 0 0 _ 0 0 0 0 0 0 9 140 EMINENT DOMAIN 0 0 0 o o o o 0 0 0 o o 0 0 0 0 o o o 0 0 o 0 0 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 150 ACCESS BY LANDLORD . o o o 0 0 o o 0 0 0 0 o o 0 0 0 o o o 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10 160 LANDLORD'S LIEN o o 0 o o o 0 0 0 o o o 0 0 o o o 0 0 0 o o 0 0 0 0 o 0 0 o o 0 0 o 0 0 0 0 0 0 0 0 0 I 0 17° DEFAULTS 0 o 0 o o 0 0 o o o 0 0 0 o o 0 0 o o 0 0 0 o o o 0 0 0 o o 0 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10 180 NONWAIVER o o o 0 0 o o o o o 0 0 o o o 0 o o 0 0 0 0 o 0 0 0 o o 0 0 0 o o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 II 190 HOLDING OVER 0 0 o o o 0 0 o o o o o o o 0 0 o o o 0 0 0 o 0 0 0 0 0 o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 II 200 COMMON AREA 0 o o o 0 0 o o 0 0 0 o o 0 0 o 0 0 0 0 0 0 0 0 o o 0 0 o o 0 0 o o 0 0 o o 0 0 0 0 0 0 0 0 12 -i TABLE OF CONTENTS (Continued) ~ ·.· 21. TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 22. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 · 23. PERSONAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 24. NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25. LANDLORD'S MORTGAGEE ............ -: . . . . . . . . . . . . . . . . . . . . . . . 13 26. BROKERAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 27. SPRINKLERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 28. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 29. ENTIRE AGREEMENT AND BINDING EFFECT Exhibit A Leased Premises Exhibit 8 Land -ii-18 LEASE AGREEMENT I. DEFINITIONS AND BASIC PROVISIONS. A. Date of Lease: June 12, 1997. B. "Landlord": Addison Circle One, Ltd. C. Address of Landlord: D. "Tenant": 15851 Dallas Parkway Suite 855 Dallas, Texas 75248-Addison Circle Access, Inc., a Delaware corporation E. Address of Tenant: 15851 Dallas Parkway Suite 855 Dallas, Texas 75248 F. "Building": The structure commonly known as Buildings A and B of Addison Circle Apartments and which is located on the tract of land (the "Land") described on Exhibit B attached hereto and made a part hereof for all purposes. G. "Leased Premises": Approximately 945 square feet of rentable area cin the floor(s) of the Buildings, and approximately 220 square feet on the roof of the parking garage as outlined and cross-hatched on the floor plan attached hereto as Exhibit A and made a part hereof for all purposes. H. "Commencement Date": June 12, !997, or the date upon which Tenant occupies the Leased Premises with the prior written consent of Landlord, whichever shall first occur. Upon request of either party hereto, Landlord and Tenant agree to execute and deliver a written declaration in recordable form expressing the Commencement Date hereof. I. "Term": Commencing on the Commencement Date and ending the later of (i) twenty (20) years after the Commencement Date, plus any partial calendar month following the Commencement Date, or (ii) the termination of the Services Agreement (hereinafter defined), unless sooner terminated as ·provided herein. -1- J. "Base Rental": Tenant shall pay to Landlord, as Base Rental, the sum of $1,200 per year. The Base Rental shall be due and payable in equal quarterly installments on the first day of each calendar quarter, quarterly in advance, without demand and without setoff or deduction whatsoever. The term "Lease Year" is defined to mean twelve (12) consecutive calendar months, the first Lease Year to commence on (i) the Commencement Date, if such date is the first day of any month, or (ii) the first day of the month following the· month during which the Commencement Date occurs, if the Commencement is not the first day of any month. The portion of the Lease Term prior to the first Lease Year shall be treated for all purposes hereunder as part of the fust Lease Year. K. "Prepaid Rental": $__Q__, to be applied to the first accruing monthly installments of rental. L. "Security Deposit": $ 0 . M. "Services Agreement": MTSLP Services Agreement of even date herewith by and between Landlord and MultiTechnology Services, L.P. ("MTSLP"). N. "Permitted Use": The Leased Premises shall be used only for an equipment room for equipment and installation and operation of multi-feed satellite earth receiv'e antenna(s) for providing telephone, television and related services consistent with the Services Agreement. 0. "Common Area": That part of the project designated by Landlord from time to time for the common use of all tenants, including among other facilities. sidewalks, service corridors, curbs, truckways, loading areas, private streets and alleys, lighting facilities, mechanical and electrical rooms, janitors' closets, halls, lobbies, delivery passages, elevators, drinking fountains. meeting rooms, public toilets, parking areas and garages, decks and other parking facilities, landscaping and other common rooms and common facilities. P. "Prime Rate": The rate announced as such from time to time by Chase Manhattan Bank, N.A., or its successors, at its principal office. Q. "Broker": None. Each of the foregoing definitions and basic provisions shall be construed in conjunction with the references thereto contained in the other provisions of this Lease and shall be limited by such other provisions. Each reference in this Lease to any of the foregoing definitions and basic provisions shall be construed to incorporate each term set forth above under such definition or provision. -2- 2. GRANTING CLAUSE. Landlord, in consideration of the covenants and agreements to be performed by Tenant and upon the terms and conditions hereinafter stated. does hereby lease, demise and let unto Tenant, and Tenant does hereby lease from Landlord, the Leased Premises specified in Paragraph I. hereof to have and to hold for the Term of this Lease, as specified in Paragraph I. hereof. 3. EARLY OCCUPANCY. Any occupancy of the Leased Premises by Tenant prior to the Commencement Date shall be subject to all of the terms and provisions of this Lease excepting only those requiring the payment of rental and other charges. If this Lease is executed before the Leased Premises becomes vacant, or if any present tenant or occupant of the Leased Premises holds over and Landlord cannot acquire possession thereof prior to the Commencement Date, Landlord shall not be deemed in default hereunder, and Tenant agrees to accept possession of the Leased Prenfises at such time as Landlord is able to tender the same and, in such event, the date of such tender by Landlord shall be deemed to be the Commencement Date, and Landlord hereby waives the payment of rental and other charges covering any period prior to the date of such tender. 4. RENTAL. As rental for the lease and use of the Leased Premises, Tenant will pay Landlord or Landlord's assigns, at the address of Landlord specified in Paragraph I. hereof, without demand and without deduction, abatement or setoff, the Base Rental in the manner specified in Paragraph I. hereof, in lawful money of the United States. If the Term of this Leas'e does not commence on the first day of a calendar month, Tenant shall pay to Landlord in advance a pro rata part of such sum as rental for such first partial month. Tenant -shall not pay any installment of rental more than one (I) month in advance. All past due installments of rental or other payment specified herein past due more than ten (I 0) days shall bear interest at the highest lawful rate per annum from the date due until paid. In addition, Tenant shall pay to Landlord upon demand a late charge in an amount equal to five percent (5%) of any installments of rental or other payments specified herein if not paid within ten (I 0) days after the date that such rental or other payment is due and payable. If Tenant fails to timely pay two (2) consecutive installments of Base Rental, or other payment specified herein, or any combination thereof, Landlord may require Tenant to pay (in addition io any interest) Base Rental and other payments specified herein (as estimated by Landlord, if necessary) quarterly in advance, and, in such event, all future payments shall be made on or before the due date in cash or by cashier's check or money order, and the delivery of Tenant's personal or corporate check shall no longer constitute payment thereof. Any acceptance of Tenant's personal or corporate check thereafter by Landlord shall not be construed as a waiver of the requirement that such payments be made in cash or by cashier's check or money order. Any amount so estimated by Landlord and paid by Tenant shall be adjusted promptly after actual figures become available and paid or credited to Landlord or Tenant, as the case may be. -3- 5. liSE. Tenant shall use the Leased Premises solely for the Permitted Use specified in Paragraph I. hereof and for no other business or purpose without the prior written consent of Landlord. 6. SERYICES TO BE PROVIDED BY LANDLORD. Subject to the rules and regulations hereinafter referred to, Landlord shall furnish Tenant, at Landlord's expense, while Tenant is occupying the Leased Premises and is not in default hereunder, any services required . to be furnished to MTSLP under the Services Agreement and elevators for ingress to and egress from the Building as may in the judgment of Landlord be reasonably required. Landlord may reasonably limit the number of elevators in operation after usual and customary business hours and on Saturday afternoons, Sundays and legal holidays. 7. REPAIR AND MAINTENANCE. A. Landlord shall, at Landlord's own cost and expense, except as may be provided elsewhere herein, make necessary repairs of damage to the Building corridors, lobby, structural members of the Building and equipment used to provide the services referred to in Paragraph 6 hereof, unless any such damage is caused in whole or in part by acts or omissions of Tenant, or Tenant's agents, employees or invitees, in which event Tenant shall bear the cost of such repairs. Tenant shall promptly give Landlord notice of any damage in the Leased Premises requiring repair by Landlord, as aforesaid. B. Tenant shall not in any manner deface or injure the Leased Premises or the Building but shall maintain the Leased Premises, including, without limitation, all fixtures installed by Tenant and all plate glass, walls, carpeting and other floor covering placed or found therein, in a clean, attractive, first-class condition and in good repair, except as to damage required to be repaired by Landlord, as provided in Paragraph 7 .A. hereof. Upon the expiration of the Term of this Lease, Tenant shall surrender and deliver up the Leased Premises with all improvements located thereon (except as provided in Paragraph II.B. hereof) to Landlord Landlord broom-clean and in the same condition in which they existed at the commencement of the Lease, excepting only ordinary wear and tear and damage arising from any cause not required to be repaired by Tenant, failing which Landlord may restore the Leased Premises to such condition, and Tenant shall pay the cost thereof. C. This Paragraph 7 shall not apply in the case of damage or destruction by fire or other casualty which is covered by insurance maintained by Landlord on the Building (as to which Paragraph 8 hereof shall apply), or damage resulting from an eminent domain taking (as to which Paragraph 14 hereof shall apply). 8. FIRE AND OTHER CASUALTY. A. If at any time during the Term of this Lease, the Leased Premises or any portion of the Building shall be damaged or destroyed by fire or other casualty, then Landlord shall have the election to terminate this Lease or to repair and reconstruct the Leased Premises and the Building to substantially the same . condition in which they -4- existed immediately prior to such damage or destruction, except that Landlord shall not be required to rebuild, repair or replace any part of the partitions, fixtures and other improvements which may have been installed by Tenant or other tenants within the Building. B. In any of the aforesaid circumstances, rental shall abate proportionately during the period and to the extent that the Leased Premises are unfit for use by Tenant in the ordinary conduct of Tenant's business. !(Landlord has elected to repair and restore the Leased Premises, this Lease shall continue in full force and effect and such repairs shall be made within ninety (90) days thereafter, subject to delays arising from shortages of labor or material, acts of God, war or other conditions beyond Landlord's reasonable control. In the event that this Lease is terminated as herein permitted or the Leased Premises are not fully repaired within ninety (90) days after the damage, Landlord shall refund to Tenant the prepaid rental (unaccrued aS of the date of damage or destruction) less any sum then owing Landlord by Tenant. If Landlord has elected to repair and reconstruct the Leased Premises, then the Term of this Lease shall be extended by a period of time equal to the period of such repair and reconstruction. Any insurance which may be carried by Landlord or Tenant against loss or damage to the Building or to the Leased Premises shall be for the sole benefit of the party carrying such insurance under its control. and it is understood that Landlord shall in no event be obligated to carry insurance on Tenant's contents. 9. COMPLIANCE WlTH LAWS AND USAGE. Tenant, at Tenant's own expense. (a) shall comply with all federal, state, municipal, fire underwriting and other laws, ordinances, orders. rules and regulations applicable to the Leased Premises and the business conducted therein by Tenant, (b) shall not engage in any activity which would cause Landlord's fire and extended coverage insurance to be cancelled or the rate therefor to be increased (or, at Landlord's option, Tenant shall pay any such increase to Landlord immediately upon demand as additional rental in the event of such rate increase by reason of such activity), (c) shall not commit, and shall cause Tenant's agents, employees and invitees not to commit, any act which is a nuisance or annoyance to Landlord or to other tenants. or which might, in the exclusive judgment of Landlord, damage Landlord's goodwill or reputation, or tend to injure or depreciate the Building, (d) shall not commit or permit waste in the Leased Premises or the Building, (e) shall comply with rules and regulations from time to time promulgated by Landlord applicable to the Leased Premises and/or the Building, (f) shall not paint, erect or display any sign, advertisement, placard or Lettering which is visible in the corridors or lobby of the Building or from the exterior of the Building without Landlord's prior written approval, and (g) shall not occupy or use, or permit any portion of the Leased Premises to be occupied or used, for any business or purpose other than the Permitted Use specified in Paragraph I. hereof. If a controversy arises concerning Tenant's compliance with any federal, state, municipal or other laws, ordinances, orders. rules or regulations applicable to the Leased Premises and the business conducted therein by Tenant. Landlord may retain consultants of recognized standing to investigate Tenant's compliance. If it is determined that Tenant has not complied as required, Tenant shall reimburse Landlord on demand for all consulting and other costs incurred by Landlord in such investigation. -5- 10. LIABILITY AND INDEMNITY. A. I enant agrees to indemnify and save Landlord harmless from all claims (including costs and expenses of defending against such claims) arising or alleged to arise from any act or omission of Tenant or Tenant's agents, employees, invitees or contractors, or arising from any injury to any person or damage to the property of any person occurring during the term of this Lease in or about the "Leased Premises, save and except those caused by the intentional acts or negligence of Landlord. I enant agrees to use and· occupy the Leased Premises and other facilities of the Building at Tenant's own risk and hereby reieases Landlord, Landlord's agents or employees, from all claims for any damage or injury to the full extent permitted by law, save and except those caused by the intentional acts or gross negligence of Landlord. B. No party shall have any right or claim against Landlord, Landlord's agents or employees for property damage by way of subrogation or assignment, save and except except those caused by the intentional acts or gross negligence of Landlord, Tenant hereby waiving and relinquishing any such right. Landlord agrees to indemnify and hold Tenant harmless from any claims (including reasonable attorneys' fees) for any loss or damage resulting from intentional acts or gross negligence of Landlord. C. Tenant, to the extent permitted by law, waives all claims Tenant may have against Landlord, and against Landlord's agents and employees for injury to person or damage to or loss of property sustained by I enant or by any occupant of the Leased Premises, or by any other person, resulting from any part of the Building or any equipment or appurtenances becoming out of repair, or resulting from any accident in or about the Building or resulting directly or indirectly from any act or neglect of any tenant or occupant of any part of the Building or of any other person, unless such damage is a result of the intentional acts or gross negligence of Landlord, or Landlord's agents or employees. If any damage results from any act or neglect of Tenant, Landlord may, at Landlord's option, repair such damage, and Tenant shall thereupon pay to Landlord the total cost of such repair. All personal property belonging to Tenant or any occupant of the Leased Premises that is in or on any part of the property belonging to Tenant or any occupant of the Leased Premises that is in or on any part of the Building shall be there at the risk of Tenant or of such other person only, and Landlord, Landlord's agents and employees shall not be liable for any damage thereto or for the theft or misappropriation thereof unless such damage, theft or misappropriation is a result of the intentional acts or gross negligence of Landlord or Landlord's agents or employees. Tenant agrees to indemnify and hold Landlord hartnless from and against any and all loss, cost, claim and liability (including reasonable attorneys' fees) for injuries to all persons and for damage to or loss of property occurring in or about the Building, due to any act or negligence or default under this Lease by Tenant, Tenant's contractors, agents or employees, save and except those caused by the intentional acts or negligence of Landlord. · -6- II. ADDITIONS AND FIXI!JRES. A. Tenant will make no alteration, change, improvement, repair, replacement or physical addition in or to the Leased Premises without the prior written consent of Landlord, except for improvements provided for in the Services Agreement. If such prior written consent of Landlord is granted, the work in such connection shall be at Tenant's expense but by workmen of Landlord or by workmen and contractors approved in advance in writing by Landlord and in a manner and upon terms and conditions and at" times satisfactory to and approved in advance in writing by Landlord. In any instance where Landlord grants such consent, Landlord may grant such consent contingent and conditioned upon I enant's contractors, laborers, materialmen and others furnishing labor or materials for Tenant's job working in harmony and not interfering with any labor utilized by Landlord, Landlord's contractors or mechanics or by any other tenant or such other tenant's contractors or mechanics; and if at-any time time such entry by one (I) or more persons furnishing labor or materials for Tenant's work shall cause disharmony or interference for any reason whatsoever without regard to fault, the consent granted by Landlord to Tenant may be withdrawn at any time upon written notice to Tenant. B. Tenant, if Tenant so elects, may remove Tenant's trade fixtures, office supplies and movable office furniture and equipment not attached to the Building provided (i) such removal is made prior to the expiration of the Term of this Lease, (ii) Tenant is not in default of any obligation or covenant under this Lease at the time df such removal, and (iii) Tenant promptly repairs all damage caused by such removal; provided, however, that no.twithstanding the foregoing or any other provision in this Lease, MISLP, subtenant or assignee of Tenant, shall have the rights granted under Article 3 of the Services Agreement to remove its removable equipment without limitation by any provision contained in this Lease. All other property at the Leased Premises and any alteration or addition to the Leased Premises (including wall-to-wall carpeting, paneling or other wall covering) and any other article attached or affixed to the floor, wall or ceiling of the Leased Premises shall become the property of Landlord, shall be in good condition, normal wear and tear excepted, and shall remain upon and be surrendered with the Leased Premises as part thereof at the expiration of the Term of this Lease, Tenant hereby waiving all rights to any payment or compensation therefor. If, however, Landlord so requests in writing, Tenant will, prior to the termination of this Lease, remove in a good and workmanlike manner any and all alterations, additions, fixtures, equipment and property placed or installed by Tenant in the Leased Premises and will repair any damage occasioned by such removal. 12. ASSIGNMENT AND SUBLETTING. A. Neither Tenant nor Tenant's legal representatives or successors in interest by operation of law or otherwise shall assign this Lease or sublease the Leased Premises· or any part thereof or mortgage, pledge or hypothecate its leasehold interest or grant any concession or license within the Leased Premises without the prior express written permission of Landlord, and any attempt to do any of the foregoing without the prior -7- express written permission of Landlord shall be void and of no effect; provided, however, that notwithstanding the foregoing or any other provision to the contrary in this Lease, Tenant is hereby granted the right to sublease or assign this Lease to MTSLP and MTSLP, as subtenant or assignee of the Tenant, shall have the right to further sublease or assign the Leased Premises to any permitted assignee of the Services Agreement. B. Notwithstanding that the prior express written permission of Landlord to any of the aforesaid transactions may have been obtained, the following shall apply: (I) In the event of an assignment, contemporaneously with the granting of Landlord's aforesaid consent, Tenant shall cause the assignee to expressly assume in writing and agree to perform all of the covenants, duties and obligations of Tenant hereunder, and such assignee shall be jointly and severalty liable therefor along with Tenant; provided, however, MTSLP, as assignee or subtenant of Tenant, shall be released from liability hereunder and under its sublease or assignment with Tenant if MTSLP is released from liability under the Services Agreement pursuant to its terms in connection with MTSLP's assignment of the Services Agreement to a permitted assignee thereunder. (2) A signed counterpart of all instruments relative thereto (executed by all parties to such transactions with the exception of Landlord) shall be submitted by Tenant to Landlord prior to or contemporaneously with the request for Landlord's prior express written permission thereto (it being understood that no such instrument shall be effective without the prior express written permission of Landlord); (3) Tenant shall subordinate to Landlord's statutory lien and Landlord's aforesaid contract Lien and security interest any liens or other rights which Tenant may claim with respect to any fixtures, equipment, goods, wares, merchandise or other property owned by or leased to the proposed assignee or sublessee or other party intending to occupy the Leased Premises; ( 4) No usage of the Leased Premises different from the usage herein provided to be made by Tenant shall be permitted, and all other terms and provisions of this Lease continue to apply after any such transaction; (5) In any case where Landlord consents to an assignment, sublease, grant of a concession or license or mortgage, pledge or hypothecation of the leasehold, the undersigned Tenant will nevertheless remain directly and primarily liable for the performance of all of the covenants, duties and obligations of Tenant hereunder (including, without limitation, the obligation to pay all rental and other sums herein provided to be paid), and Landlord shall be permitted to enforce the provisions of this Lease against the undersigned Tenant and/or any assignee, sublessee, concessionaire, licensee or other transferee without demand upon or proceeding in any way against any other person; and -8- ( 6) In the event that the rental due and payable by a sublessee under any such permitted sublease (or a combination of the rental payable under such sublease plus any bonus or other consideration therefor or incident thereto) exceeds the hereinabove provided rental payable under this Lease or if with respect to a permitted assignment, permitted license or other transfer by Tenant permitted by Landlord, the consideration payable to Tenant by the assignee, licensee or other transferee exceeds the rental payable under this Lease, then Tenant shall be bound and obligated to pay Landlord all such excess rental and· other excess consideration within ten (I 0) days following receipt thereof by Tenant from such sublessee, assignee, licensee or other transferee. as the case might be. 13. SUBORDINATION. Tenant accepts this Lease subject and subordinate to any easement. mortgage, deed of trust or other lien presently existing or hereafter placed upon the Leased Premises or upon the Building or any part thereof, and to any renewals, modifications, extensions and refinancings thereof, which might now or hereafter constitute a lien upon the Building or any part thereof, and to zoning ordinances and other building and fire ordinances and governmental regulations relating to the use of the Leased Premises, but Tenant agrees that arty such ground Lessor, mortgagee and/or beneficiary of any deed of trust or other lien ("Landlord's Mortgagee") and/or Landlord shall have the right at any time to subordinate such ground lease, mortgage, deed of trust or other lien to this Lease on such terms and subject to such conditions as such Landlord's Mortgagee may deem appropriate in its discretion. Upon demand Tenarit agrees to execute such further instnunents subordinating this Lease, as Landlord may request, and such nondisturbance and attornment agreements, as any such Landlord's Mortgagee shall request, in form satisfactory to Landlord's Mortgagee. In the event that Tenant shall fail to execute any such instrunient within ten (10) days after requested, Tenant hereby irrevocably constitutes Landlord as Tenant's attorney-in-fact to execute such instnunent in Tenant's name, place and stead, it being stipulated by Landlord and Tenant that such agency is coupled with an interest in Landlord and is, accordingly, irrevocable. Upon foreclosure of the Building or upon acceptance of a deed in lieu of such foreclosure, Tenant hereby agrees to attorn to the new owner of such property after such foreclosure or acceptance of a deed in Lieu of foreclosure, if so requested by such new owner of the Building. Landlord shall use reasonable efforts to attempt to obtain for the benefit of Tenant from any lender or other holder of such mortgage or deed of trust an agreement acknowledging the existence of this Lease for the full term hereof, and agreeing that any transfer of the Building or underlying realty, voluntarily or involuntarily, shall be subject to the continuation of this Lease for the full term hereof, as long as Tenant and/or MTSLP (as assignee or or subtenant of Tenant) shall not be in default under this Lease. 14. EMINENT DOMAIN. If there shall be taken by exercise of the power of eminent domain during the Term of this Lease any part of the Leased Premises or the Building, Landlord may elect to terminate this Lease or to continue same in effect. If Landlord elects to continue this Lease, the rental shall be reduced in proportion to the area of the Leased Premises so taken, and Landlord shall, within ninety (90) days, repair any damage to the Leased Premises or the Building resulting from such taking. All sums awarded or agreed upon between Landlord and the condemning authority for the taking of the interest of Landlord or Tenant, whether as -9- damages or as compensation, will be the propeny of Landlord without prejudice, however, to claims of Tenant against the condemning authority on account of the unamortized cost of leasehold improvements paid for by Tenant taken by the condemning authority. If this Lease should be terminated under any provision of this Paragraph 14, rental shall be payable up to the date that possession is taken by the condemning authority, and Landlord will refund to Tenant any prepaid unaccrued rental less any sum then owing by Tenant to Landlord. 15. ACCESS BY LANDLORD. Landlord, Landlord's agents and employees shall have access to and the right to enter upon any and all parts of the Leased Premises at any reasonable time during normal business hours upon not less than 24 hours notice to MTSLP and if accompanied by a representative of MTSLP (except in cases of emergency, defined to be any situation in which Landlord perceives imminent danger of injury to person and/or damage to or loss of propeny, in which case Landlord may enter upon any and all parts of the Leased Premises at any time) to examine the condition thereof, to clean, to make any repairs, alterations or additions required to be made by Landlord hereunder, to show the Leased Premises to prospective purchasers or tenants or mortgage tenders {prospective or current) and for any other purpose deemed reasonable by Landlord, and Tenant shall not be entitled to any abatement or reduction of rental by reason thereof. 16. LANDLORD'S LIEN. Landlord hereby waives the statutory landlord's Lien, and agrees that Tenant and/or MTSLP, as assignee or subtenant of Tenant, shall have all of the rights to deal with MTSLP's System (as defined in the Services Agreement) and MTSLP's removabli: and non-removable equipment as are granted to MTSLP in the Service's Agreement without limitation by any provision contained in this Lease. 17. DEFA!JLIS. A. Each of the following acts or omissions of Tenant or occurrences shall constitute an "Event of Default": (I) Failure or refusal by Tenant to timely pay rental or other payments hereunder upon the expiration of a period of ten ( 1 0) days following written notice to Tenant and MTSLP of such failure. (2) Failure to perform or observe any covenant or condition of this Lease by Tenant to be performed or observed, except as provided in (1) above upon the expiration of a period of thiny (30) days following written notice to Tenant and MTSLP of such failure. Landlord hereby agrees that upon the occurrence of an Event of Default, if Tenant does not timely cure the default, MTSLP shall have an additional fifteen ( 15) days following Tenant's cure period to cure such default and Tenant shall be responsible for reimbursing MTSLP for any amounts expended by MTSLP in curing Tenant's default. -10- B. This Lease and the Tenn and estate hereby granted and the demise hereby made are subject to the limitation that if and whenever any Event of Default shall occur, Landlord may, at Landlord's option, in addition to all other rights and remedies given hereunder or by law or equity, do any one (I) or more of the following: (I) Terminate this Lease, in which event Tenant shall immediately surrender possession of the Leased Premises to Landlord. (2) Enter upon and take possession of the Leased Premises and expel or remove Tenant and any other occupant therefrom, with or without having tenninated the Lease. · (3) Alter locks and other security devices at the Leased Premises; provided, however, that notwithstanding -the foregoing provisions or any other provisions of this Lease, to the contrary, under no circumstances shall Landlord take any action which would conflict with or limit any rights which MTSLP has in the event of a default by MTSLP under the Services Agreement. C. Exercise by Landlord of any one (I) or more remedies hereunder granted or otherwise available shall not be deemed to be an acceptance of surrender of the Leased Premises by Tenant, whether by agreement or by operation of Law, it being understood that such surrender can be effected only by the written agreement of Landlord and Tenant. All claims for damages by reason of such re-entry and/or possession and/or alteration of locks or other security devices are hereby waived, as are all claims for damages by reason of any distress warrant, forcible detainer proceedings, sequestration proceedings or other Legal process. Tenant agrees that any re-entry-by Landlord may be pursuant to judgment obtained in forcible detainer proceedings or other legal proceedings or without the necessity for any legal proceedings, as Landlord may elect, and Landlord shall ·not be liable in trespass or otherwise. D. In the event that Landlord elects to tenninate this Lease by reason of an Event of Default, then, Landlord shall be entitled to pursue any remedy available at at law or in equity. 18. NQNWAIYER. Neither acceptance of rental or other payments by Landlord nor failure by Landlord to complain of any action, nonaction or default of Tenant shall constitute a waiver of any of Landlord's rights hereunder. Waiver by Landlord of any right for any default of Tenant shall not constitute a waiver of any right for either a subsequent default of the same obligation or any other default. Receipt by Landlord of Tenant's keys to the Leased Premises shall not constitute an acceptance of surrender of the Leased Premises. 19. HOLDING OVER. If Tenant should remain in possession of the Leased Premises after the expiration of the Tenn of this Lease, without the execution by Landlord and Tenant of a new lease or an extension of this Lease, then Tenant shall be deemed to be occupying the Leased Premises as a tenant-at-sufferance, subject to all the covenants and obligations of this -11- Lease and at a daily rental of twice the per day rental provided for the last month of the Term of this Lease, computed on the basis of a thiny (30) day month. The inclusion of the preceding sentence shall not be construed as Landlord's consent for Tenant to hold over. 20. COMMQN AREA. The Common Area, as defined in Paragraph I. hereof, shall be subject to Landlord's sole management and control and shall be operated and maintained in such manner as Landlord in Landlord's discretion shall determine. Landlord reserves the right to change from time to time the dimensions and location of the Common Area, to construct additional Stories on the Building and to place, construct or erect new structures or other improvements on any part of the Land without the consent of Tenant. Tenant, and Tenant's employees and invitees shall have the nonexclusive right to use the Common Area as constituted from time to time, such use to be in common with Landlord, other tenants of the Building and other persons entitled to use the same, and subject to such reasonable rules and regulations governing use as Landlord may from time to time presCribe. Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to prevent the public from obtaining prescriptive rights or to make repairs or alterations. 21. TAXES. Tenant shall be liable for the timely payment of all taxes levied or assessed against personal propeny, furniture or fixtures or equipment placed by Tenant in the Leased Premises. If any such taxes for which Tenant is liable are levied or assessed against Landlord or Landlord's propeny and if Landlord elects to pay the same, Tenant shall pay to· Landlord upon demand that part of such taxes for which Tenant is liable hereunder. ' 22. INSURANCE. Ienap.t shall, at Tenant's expense, procure and maintain throughout ·lhe I erm of this Lease insurance consistent with that required by the Services Agreement. 23. PERSONAL LIABILITY. The liability of Landlord to Tenant for any default by Landlord under the terms of this Lease shall be limited to the proceeds of sale on execution of the interest of Landlord in the Building and in the Land, and neither Landlord, nor any party comprising Landlord, shall be personally liable for any deficiency. This clause shall not be deemed to limit or deny any remedies which Tenant may have in the event of default by Landlord hereunder which do not involve the personal liability of Landlord. 24. NOTICE. Any notice which may or shall be given under the terms of this Lease shall be in writing and shall be either delivered by hand (including commercially recognized messenger and express mail service) or sent by United States Mail, registered or certified, return receipt requested, postage prepaid, if for Landlord, to the Building office and at the address specified in Paragraph 1. hereof, or if for Tenant, to the Leased Premises or, if prior to the Commencement Date, at the address specified in Paragraph I. hereof, or at such other addresses as either party may have theretofore specified by written notice delivered in accordance herewith. Such address may be changed from time to time by either party by giving notice as provided herein. Notice shall be deemed given when delivered (if delivered by hand) or, whether actually received or not, when postmarked (if sent by mail). If the term "Tenant" as used in this Lease refers to more than one (I) person and/or entity, any notice given as aforesaid to any one of such persons and/or entities shall be deemed to have been duty given to Tenant. -12- 25. LANDLORD'S MORTGAGEE. If the Building and/or Leased Premises are at any time subject to a ground lease, mortgage, deed of trust or other Lien, then in any instance in which Tenant gives notice to Landlord alleging default by Landlord hereunder, Tenant will also simultaneously give a copy of such notice to each Landlord's Mortgagee (provided Landlord or Landlord's Mortgagee shall have advised Tenant of the name and address of Landlord's Mortgagee) and each Landlord's Mortgagee shall have the right (but no obligation) to cure or remedy such default during the period that is permitted to Landlord hereunder, plus an additional period of thirty (30) days, and Tenant will accept such curative or remedial action (if any) taken by Landlord's Mortgagee with the same effect as if such action had been taken by Landlord. 26. BROKERAGE. Tenant represents and warrants that it has dealt with no broker. agent or other person in connection with this transaction and that no broker, agent or other person brought about this transaction, and Tenant agrees to indemnify and hold Landlord harmless from and against any claims by any other broker, agent or other person claiming a commission or other form of compensation by virtue of having dealt with Tenant with regard to this leasing transaction. The provisions of this Paragraph 26 shall survive the termination of this Lease. 27. SPRINKLERS. No sprinkler or sprinkler system shall be installed in the Leased Premises without the prior written consent of Ten8Jit and MTSLP. 28. MISCELLANEOUS. ' A. Provided Tenant complies with Tenant's covenants, duties and obligations hereunder, Tenant shall quietly have, hold and enjoy the Leased Premises subject to the terms and provisions of this Lease. B. In any circumstance where Landlord is permitted to enter upon the Leased Premises during the Term of this Lease, whether for the purpose of curing any default of Tenant, repairing damage resulting from fire or other casualty or an eminent domain taking or is otherwise permitted hereunder or by law to go upon the Leased Premises, no such entry shall constitute an eviction or disturbance of Tenant's use and possession of the Leased Premises or a breach by Landlord of any of Landlord's obligations hereunder or render Landlord liable for damages for loss of business or otherwise or entitle Tenant to be relieved from any of Tenant's obligations hereunder or grant Tenant any right of setoff or recoupment or other remedy; and in connection with any such entry incident to performance of repairs, replacements, maintenance or construction, all of the aforesaid provisions shall be applicable notwithstanding that Landlord may elect to take building materials in, to or upon the Leased Premises that may be required or utilized in connection with such entry by Landlord. C. In the event Landlord commences any proceedings against Tenant for nonpayment of rental or any other sum due and payable by Tenant hereunder, Tenant will not interpose any counterclaim or other claim against Landlord of whatever nature or description in any such proceedings; and in the event Tenant interposes any such counterclaim or other claim against Landlord in such proceedings, Landlord and Tenant -13- stipulate and agree that, in addition to any other lawful remedy of Landlord, upon motion of Landlord, such counterclaim or other claim asserted by Tenant shall be severed out of the proceedings instituted by Landlord and the proceedings instituted by Landlord may proceed to final judgment separately and apart from and without consolidation with or reference to the status of such counterclaim or any other claim asserted by Tenant; provided, however, the provisions of this sentence shall not apply to counterclaims or any other claim asserted by Tenant; provided, however, the provisions of this sentence shall _ not apply to counterclaims or claims by Tenant which, under the laws of the State in which the Building is located, may only be asserted in the aforesaid proceedings brought by Landlord or be forever barred if not asserted in said proceedings. D. Landlord may restrain or enjoin any breach or threatened breach of any covenant, duty or obligation of Tenant herein con!ained without the necessity of proving the inadequacy of any legal remedy or irreparable harm. The remedies of Landlord hereunder shall be deemed cumulative, and no remedy of Landlord, whether exercised by Landlord or not, shall be deemed to be in exclusion of any other. Except as may be otherwise herein expressly provided, in all circumstances under this Lease where prior consent or permission of one (I) party ("first party") is required before the other party ("second party") is authorized to take any particular type of action, the matter of whether to grant such consent or permission shall be within the sole and exclusive judgment and discretion of the first party; and it shall not constitute any nature of breach by the first party hereunder or any defense to the performance of any covenant, duty or obligation Of the second party hereunder that the first party delayed or withheld the granting of such consent or permission, whether or not the delay or withholding of such consent or ·permission was prudent or reasonable or based on good cause. cause. · E. In all instances where Tenant is required to pay any sum or do any act at a particular indicated time or within an indicated period, it is understood that time is of the essence. F. The obligation of Tenant to pay all rental and other sums hereunder provided to be paid by Tenant and the obligation of Tenant to perform Tenant's other covenants and duties hereunder constitute independent, unconditional obligations to be performed at all times provided for hereunder, save and except only when an abatement thereof or reduction therein is hereinabove expressly provided for and not otherwise. Tenant waives and relinquishes all rights which Tenant might have to claim any nature of lien against or withhold, or deduct from or offset against any rental and other sums provided hereunder to be paid Landlord by Tenant. Tenant waives and relinquishes any right to assert, either as a claim or as a defense, that Landlord is bound to perform or is liable for the nonperformance of any implied covenant or implied duty of Landlord not expressly herein set forth. G. Under no circumstances whatsoever shall Landlord ever be liable hereunder for consequential damages or special damages. -14- H. Landlord retains the exclusive right to create any additional improvements to structural and/or mechanical systems, interior and exterior walls and/or glass· which do not adversely affect use of the Leased Premises, which Landlord deems necessary without the prior consent of Tenant. I. All monetary obligations of Landlord and Tenant (including, without limitation, any monetary obligation of Landlord or Tenant for damages for any breach o( the respective covenants, duties or obligations of Landlord or Tenant hereunder) are performable exclusively in the county in which the Building is located. J. The laws of the state in which the Building is located Shall govern the interpretation, validity, performance and enforcement of this Lease. K. If any clause or provision of this Lease is or becomes illegal, invalid, or unenforceable because of present or future laws or any rule or regulation of any governmental body or entity, effective during the Term of this Lease, the intention of the parties hereto is that the remaining parts of this Lease shall not be affected thereby unless such invalidity is, in the sole determination of Landlord, essential to the rights of both parties, in which event Landlord has the right to terminate this Lease on written notice to Tenant. L. Tenant waives the benefits of all existing and future rental control legislation and statutes and similar governmental rules and regulations, whether in time of war of not, to the extent permitted by law. In the event that any law, decision, rule or regulation of any governmental body having jurisdiction shall have the effect of limiting for any period of time the amount of rental or other charges payable by Tenant to any amount less than that otherwise provided pursuant to this Lease, the following amounts shall nevertheless be payable by Tenant: (i) throughout such period of limitation, Tenant shall remain liable for the maximum amount of rental and other charges which are legally payable (without regard to any limitation to the amount thereof expressed in this Lease except that all amounts payable by reason of this Paragraph 28.L. shall not in the . aggregate exceed the total of all amounts which would otherwise be payable by Tenant pursuant to the terms of this Lease for the period of limitation), (ii) at the termination of such period of limitation, Tenant shall pay to Landlord, on demand but only to the extent legally collectible by Landlord, any amounts which would have been due from Tenant during the period of limitation but which were not paid because of such limiting law, decision, rule or regulation, and (iii) for the remainder of the Term of this Lease following the period of limitation, Tenant shall pay to Landlord all amounts due for such portion of the Term of this Lease in accordance with the terms hereof calculated as though there had been no intervening period of limitation. M. It is mutually agreed by and between Landlord and Tenant that the respective parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto again.St the other on any matters whatsoever arising out of or in any way connected with this Lease, the -15- relationship of landlord and tenant, Tenant's use or occupancy of the Leased Premises, and any emergency statutory or any other statutory remedy. N. No receipt of money by Landlord from Tenant after the expiration of the Term of this Lease, or after the service of any notice, or after the commencement of any suit, or after final judgment for possession of the Leased Premises, shall reinstate, continue or extend the Term of this Lease or affect any such notice, demand or suit or imply consent for any action for which Landlord's consent is required. 0. In the event of variation or discrepancy, Landlord's original. copy of the Lease shall control. P. Words of any gender used in this Lease shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. The headings of the Paragraphs of this Lease have been inserted for convenience only and are not to be considered in any way in the construction or interpretation of this Lease. Q. Tenant agrees that Tenant shal.l from time to time upon request by Landlord execute and deliver to Landlord a statement in recordable form certifying (i) that the Lease is unmodified and in full force and effect (or, if there have been modifications, that· the same is in full force and effect as so modified), (ii) the dates to which rental and other charges payable under this Lease have been paid, and (iii) that Landlord is not in default hereunder (or, if Landlord is in default, specifying the nature of such default). Tenant further agrees that Tenant shall from time to time upon request by Landlord execute and deliver to Landlord an instrument in recordable form acknowledging Tenant's receipt of any notice of assignment of this Lease by Landlord. R. In no event shall Tenant have the right to create or permit there to be established any lien or encumbrance of any nature against the Leased Premises or the Building for any improvement or improvements by Tenant, and Tenant shall fully pay the cost of any improvement or improvements made or contracted for by Tenant. Any mechanic's lien filed against the Leased Premises or the Building for work claimed to have been done, or materials claimed to have been furnished to Tenant, shall be duly discharged or, if Tenant disputes such claim, bonded in accordance with applicable law, by Tenant within ten (10) days after the filing of the lien. S. Whenever a period of time is herein prescribed for action to be taken by Landlord or Tenant, Landlord or Tenant, as applicable, shall not be liable or responsible for, and there shall be excluded from the computation for any such period of time, and delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions, or any other causes of any kind whatsoever which are beyond the reasonable control of Landlord or Tenant, as applicable. -16- T. 11lis Lease shall not be recorded by either party without the consent of the other. U. Nothing herein contained shall be deemed or construed by the parries hereto, nor by any third party, as creating the relationship of principal and agent, or of parrnership or of joint venture between the parries hereto, it being understood and agreed that neither the method of the computation of rental, nor any other provision contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parries hereto other than the relationship of landlord and tenant. V. Whenever it is provided ·herein that a monetary sum shall be due to Landlord together with interest at the highest lawful rate, if at such time there shall be no highest rate prescribed by applicable law, interest shall be due at the rate of two percent (2%) in excess of Prime Rate as defined in Paragraph I. hereof. W. Tenant acknowledges that Landlord's agents and employees have made no representations or promises with respect to the Leased Premises or the Building except as herein expressly set forth, and Tenant further acknowledges that no rights, easements or licenses are acquired by Tenant by implication or otherwise, except as herein expressly set forth. X. Tenant warrants that Tenant is; and shall remain throughout the Term df this Lease, authorized to do business and in good standing in the state in which the · Building is located. Tenant agrees, upon request by Landlord, to furnish Landlord satisfactory evidence of Tenant's authority for entering into this Lease. Y. In case it should be necessary or proper for Landlord to bring any action under this Lease, or to consult an attorney concerning this Lease (including specifically, without limitation, for the review of instruments evidencing a proposed assignment, subletting or other transfer by Tenant submitted to Landlord for consent) or the enforcement of any of Landlord's rights hereunder, Tenant agrees to pay to Landlord reasonable attorneys' fees whether suit be brought or not. Z. Submission of this Lease for examination does not constitute an offer, right of first refusal, reservation of, or option for, the Leased Premises or any other premises in the Building. 11lis Lease shall become effective only upon execution and delivery by both Landlord and Tenant. AA. Landlord shall have the right at any time to change the name or street address of the Building and to install and maintain a sign or signs on the interior or exterior of the Building. BB. If at any time during the. Term of this Lease a tax or excise on rental, a sales tax or other tax however described (except any inheritance, estate, gift, income or excess profit tax imposed upon Landlord) is lc;:vied or assessed against Landlord by any -17- taxing authority having jurisdiction on account of Landlord's interest in this Lease, or the rentals or other charges payable hereunder, as a substitute in whole or in part for, or in addition to, the taxes described elsewhere in this Paragraph 28.BB., Tenant shall pay to Landlord as additional rental upon demand the amount of such tax or excise. In the event that any such tax or excise is levied or assessed directly against Tenant, Tenant shall pay the same at such times and in such manner as such taxing authority shall require. 29. ENTIRE AGREEMENT AND BINDING EFFECT. This Lease and any contemporaneous workletter, addenda or exhibits signed by the parties constitute the entire agreement between Landlord and Tenant; no prior written or prior contemporaneous oral promises or representations shall be binding. This Lease shall not be amended, changed or extended except by written instrwnent signed by both parties hereto. The provisions of this Lease shall be binding upon and inure to the benefit of the heirs, heirs, personal representatives, successors and assigns of the parties, but this provision sliiUl in no way alter the restriction herein in connection with assignment, subletting and other transfer by Tenant. EXECUTED in multiple counterparts, each of which shall have the force and effect of an original, on the date specified in Paragraph I.A. hereof. LANDLORD: ADDISON CIRCLE ONE, LTD., a Texas limited partnership By: Columbus Realty Trust, a Texas real estate .investment trust, general Partner By: _____________ _ Name: Title: -18- DA963100204 082297 vii 186:30 12·96 TENANT: ADDISON CIRCLE ACCESS, INC., a Delaware corporation By: ____________ _ Name: Title -19- EXHIBIT A [Attach Floor Plan of the Leased Premises] DA963100204 Exhibit A 0:: 0 0 _J u.. 1-(/) 0:: u.. ~ C) z 0 _J :J CD J202 J204 J206 J208 J210 J212 J214 J216 J218 J220 4200 UEZZ UEZZ UEZZ UEZZ UEZZ UEZZ UEZZ UEZZ UEZZ UEZZ UEZZ h rh rh l rl r ' I ~ 4201 11-UEZZ 4205 4224 ILr UEZZ UEZZ r 4207 UEZZ j420J UEZZ LJ LJ 4225 4226 '---1., LOFT UEZZ '-UEZZ 4227 4228 4272 LOFT LOFT .....--4229 42JO ~ LOFT ~ UEZZ 4270 ' LOFT I 42J2 D 42J1 WEZZ _r-LOFT 4268 rl rl LOFT ~ L 4241 WEZZ ...__ 4245 4234 UEZZ L___r-UEZZ 4266 LOFT I) lXI J LJ .L) LJ L M--:;::L 4262 4260 4258 4256 4254 LOFT LOFT LOFT LOFT LOFT n 4252 4250 4248 4246 4244 4242 4240 42J8 I LOFT UEZZ UEZZ UEZZ WEZZ UEZZ UEZZ UEZZ UEZZ ~ I _j l _j BUILDING B (5th FLOOR) EXHIBIT "B" Lots 1, 2 and 4, Block B of Addison Circle Phase I, an addition to the Town of Addison, Dallas County, Texas, pursuant to Final Plat thereof recorded in Volume 97101, Page 5801, Map Records of Dallas County, Texas. DA971840088 070397 vi 186:3012-65 EXHIBIT "C" Street Use and Rental Agreement 840599 Milam 41:51$1! 163.00 STATE OF TEXAS § .... § STREETS USE AND RENTAL AGREEMENT COuNrY OF DALLAS I A ~~::!;: .:!,~.:""~?.:";'~=~=:~cia~ ~~Cirdo Access, Inc., a Teus corporation (•Grantee•). WHEREAS. Addison Cin:lo Ooo, !Jd., a Tons limiiOd putnorship (tho "l'arwnhlp"), is tho owner or conain ,..! property described in E•hibit A UIXhod bmto and incorpon!Od l1omn ("Phase!"), and Gaylord Proponios,!Dc., a Tous corponlion ("Gaylord") is lhe ownd and 'lllual>lo -oonsideray eontmt and ar;ree as follows: Secllon 1. · lncorporadan of premises. The above and rcn:going promises are uue and corrcc1. and an: incorporated herein arJd. made a part hereof for 111 purpo'Se:S. Section l. O.finidoru. For tho purpose of this A~ tho foUawin& =ms, phnscs, words. abbreviaEions and Eheir derivaEions shall have the mtaninc siven. ~in unless more specincally defined wiEhin oEher sections or Ehis As~-When not irv:onsistent with the context. words used. in the presc:n.t Eeme include the fuauc tense. words in Ute si:D&lc tii%Dlbe:r include me plun.l number. The word '"shall'" is always mard.atory. and not merely directory. Stncts UY .a.cl Rcnt:al A,rnmml· Pa;c 1 of 16 DOC~ U1,.1 97064 02895 . A. • Affiliale" meons a c:orporue pmm of cil:>er Gaylord or Columbus owning""'"' lhan 50" of !he shares of Gaylord or Columbus. a puU>mbip or joirl1 ....,. in which Gaylord or Columbu.s owns u Uuere:sl of more than SO~. or a subsidiary C!llity of Gaylord or Cohlmbus iD wbidl Gaylord or Columbus OWD a mon: lhan 50\110 inleresL B. • 1996. C. "Annual Gross Revemle Ba3ed Fee" means anUIIOWil Clen=1 Compeosalioo is paid by Ora~~~« 10 tbe City. H. "Day or days" shallmcao a gJadar day or days. I. "Oeoenl Compemalioo" means lho l.IIIOUIII 0~ is requin:d 1D pay Cil)' 1l!lder Seelion 9.B. of this Agreemen~. .~ J. "Gross a.....,.· shall meao an ,...;pes c:olleded and ......., n=ived by !be o ...... and any priVI!e utility provider for all utili!)' operalioos and services within tbe Pn!pera Revenue" irdud.es the sale or lase of customer premise equipmem.. fnste"'doa chatJcs, access chatJes po;4 ca Ora~~~« by olher carri or tnlerUinmelu and ooo-emertaiomw services \tneluding leased -=s fees); (b) revenue from all charles for the imertion of C01J1111Ctcia1 advertisements vpoo the cable television system; (c) revenue from all c1wJe0 for the leased use of studios locat-=lllsm: rial>< and privilep 10 CODStniOt, apattd, recoostniOt, maimain, ""' and opeWe in, aloq, across, oo, over, -gb, above and under tbcoe public streets, alley1 and ri&bl>--of·way within the Pzoperty, a Sy=m for <:ertlio utility services including, but oo< 1imit:d 10, the traDsmissiOil of clcclricity, oaasral ps, ~~eam, video siiJ'Ii. (e.s. cable tdevisiOil systao), ltldlo sipals, tclepboao si&oals and data. Graot:e shall oot provide services direciiJ' reauJatr:d by the Teus Public Utilily c....missioo ("PUC"), tbe Texas Namnl ResowY, Gmuee shall pmvidc the City Enaineer (or such oilier ofrocials as the City may dcsigmle from time to time) exh wirh a copy or the consuuaion work plans and drawinp. Grantee shall DOt proceed with can:muai.on within lbe City's rizbts.-of~w.a.y uruil the plans and drawings have been approved in writina by the proper City officials. B. Upon request or the City, Gnmee shall remove and abate any pen: ion or the Sysu:m that is dangerous to J:fe or propcn:y, and in case Grantee. after acticc, fails or cetu.scs · to act, the City may remove or abate tbc same, .11 tbe sole cou ancl expense or Granree. all without compensation or liability for damages to Gl'2%UCC. Gnntee sb.all promptly reston: the public streets. alleys and riatus-of~w.a.y to their condition prior to Grantee's consuuctioa,. maintcnm:.e. or Cxc..aYOltion, to the reasonable s:atisrill:tion of the Cicy Enaincer. Gramee shall e:te.~v.lte OnJ.)' for the COnstruCtion, installation, opansion, repair, removal, and mairuen:m:e O( all or a pon:ion or the System. C. Except in an emeraerq, Gruuec shall not excav.ate any pavemcn1 in any public a.Jiey or sueet or signifLC.IDt amourus or any uap.aved public riJhl.-of~w:ay without fust sccurina permission or !he City Enainm', bct such permission shall be given if the p!Oposed excavation is in acco!daocc wilh !he tmos or this As=meot. Tbe City EDgin= shall be ootiftcd as soon IS practicable n:prdinJ WOrl: peri'Omtcd under ClllcrJeiiC)' COnditions; and G ...... shall comply with the City Enainccr's reasonable requirements for ECSt0!21ion of any disturbed public propeny. D. Witl>in lhiey (30) days of completion of =h SCJmcot or !he Symm, Grmtce sb:a1l supply the City wilh • complete SCI or ·u bcilt" dnwiop for that scgmcot, sb:a1l keep • copy of all "as bcilt" dnwiop at a location within the Property and shall oolify the City of !bat loatiaa. funber, after each ~J.accment. relocation, rccoascruction, or removal. Gra.rucc sball prvmptly oocify the City of the CXKI chao&cs made and shall pmvide a new SCI or "as built" drawings of each modification to the City EnJioccr. Gr=ce shall obaio the City's approval ber .... """ Sl'"""' tbao&cs arc made. Secllon 5. Tmn of A&na~~enL Upon the fdiog wilh tbc City by the Grantee of the acccp12r1CC tequired herein, this Agreement shall be in full forte and effect for a term and period of twcoty (10) yean, beginnin& on the Agreement !laiC. 'Ibis A~ shall be automatically n:oewcd for one uod, or to sban: duct trench spa= ownod aod maintained by any other penon or cmicy upon reasonable, non-discrimimtory terms md at bit market value. The intent of this section is to m:outii.IC slwed. use of tbe intra5auaute m:f decrease excavation of lhe City's riahf.s-of-w.ay. C. Any racilities or otbor pmoas or eolities tba! are llliW>od to or wilhin die Syso.m racilitics sball be placed, replaced, maiataiaed aod removed ia a safe ttWitiOr so tba! the aaac1uaea1 does 1101 ialcrased liabUity for acr:idems, or it' tbe fxililics or such otbntec. In the event that the City shall close or abandon any public street. alley, or rigbl-of·way which comains any portion of the Sysu:m, aay conveyoncc of land contained in such elosed or ai>Uidoned public st=t, alley, bi&bway, or ri&blof-way shall be subj~ to the ri&hts bereia araa.ted. C. Whenever by reason af the cbanaes in the &ride of any street ar in W: lacuioa ar the manner of conSuuctin& any ps pipes. sewers. or any other underground or ove:tbcad strum~re for any City purpose whaEeYet, it sball be deemed. necessary by lhc: City to alter', ch.3nge. adapt or conform a po:t:ion of the System thereto, such altmtions or ctaancc:s shall be proniptly made b)o G121Ue0 when ordered in writio& by the City. If' such requiremcnntec to adap< or conform ils Sysr= facilities, or in any way or manner 10 alta, reloc:ue or danae iu Syucm fxilities to cm.ble aay other entity or penan. cx.c:ept for me Cil:y, to t:Se. or to use with areater convenicz:J:e, any plblic street, alley or ri&bt-of-way, Grant= shall 1101 be required to ma1tt: any such clwlaos umil sucb other eatity or person shall have uac:faUkea. wUh solvent bond satisfaaory 10 Gnmee, to reirnbune Grantee for any loss or .. peme wbicll may be caused by, or arise out of sucb ehanp:, alteration or relocation of the System facilitics:-providcd, however, lhat the City shall never be liable for sucb reimbunemcnL D. In the eve~~~ that Gr>ntec has not reloated those of ils affedf·way witltiD a reasoDihle leDJih of lime {as delelmiJ>ed by the City's Ensinoer) prior to the City's coiDtllenuDe tho City for all cosu cosu of relocation. E. Durill& the term of this Aareemeot, Graotee wll be liable to the City for tile adS or omissions of any entity used by Gn:tee (including an Armiate) when such cmity is involve.i directly or indirectly in the: consuuction. insulbtion. maintenance or opcratioa of lhe Sysa:m as if the acts or omissions of such cudty were the acts or omissions of Grantee. Strttb tiM IUid Rnltal A~""Mt~t • hJc 6 of 16 DOC" SJI.J.II 97084 02900. " . ·-~ --.. ------. -S«tton I. Compliance with City Cbuter. Grantee rccoan.izes. accepts and apees that me rams. eonditions. and provisions or &his Agr=nen& arc subject to the applicable provisions or lb: Town or Addison Cbana'. Any request by Graru= for a modiraation to lhls A&m:IDCIIl sball be subject to roview by the City Anon:ey ror corupliaar:e wilh the appliablc piOYislous or !he City Cbaner. S«tton 9. Compc11S2Uoa to lbe City. A. Acctptanct Ftt. Upon tbe issuaDce or a ce:rtiriCIU: of occuparcy for any phase or subphase or the Property. the Gr.uuee 1 ...... to pay a one time aa:q>W>ce fee to the City ill the sum or Two Dollars ($2.00) per lioear root or the City's streetS tnvened aad I fcc of Oae Thousand Dollan ($1.000) per p<~blic sa= crossiua: provided, however, that Ibis aaxpW~Ce rce shall cot apply lO any public meet crossing occuning IS I part o( the inilial COnsuuctiOD of infnsuucaue in the development o{ such pbase or subphasc. -. B. Gtneral ComptiUiJlion. For &he reason lhat the public su=ts, alleys alleys and ri&]tts· of.w:ay to be used by Grantee in the opcnti011 or the System wilhin the bouncbrics of the City an: Yllluable p<1blic properties, acquired aad mointlined by the City at 1 JlrClt apcme to ia wpayers. aad that the reservation to the Gr>moe or the use of said p<1blic st=ts, alleys aad riJI)w-of-way is a Yllluable property righl witbout wbich Grantee would be roquired to ittYcst substantial apital in richt-of·way costs aad acquisidoas, the Grantee agr=s to pay to the City as eeoc tal compcoatioa durioc acb year of this Aa-1 and for ach type of utility senice (IIICiudin& but DO< limited to electric, ps, telepboae aad able television) provided tb:ouJh aad by the System facUlties, a sum equal to the JlrClliOr of the Mittimwa Aaallal Fee or Alutllal Gress Revenue Based Fee. Tbe Minimwn Aaallal Fee sltall be ".000.00. C. 01/adDtion and Paymml CHS a Quturuty Bcuis. For acb type of utility senice provided by the Graru= by aad tltnlu&h the System, Graru= sball pay to the City for each calendar quarter an amowt1 equal to the JlrCller of: (i) one fourth (1/4) or the Minimum AAnual Fee, calc:ulated on the basis of. twelve moolb Compeasltioa Ycu, or (ii) "' or Gress Revenues for such quaner. Tbe JRU. D. Rta:lad4lion at t7ld of Compnerly Paymea~ is made afu:r .-a on 1hc dale ciue, Grwee shall pay a 1a1e paya10111 peaaiiy or the pier or: (i) SlllO or (ii) simple illlm:sl at 1ea pereen1 (10,;) per annum of the IOUI sum due. In addidoa 10 the dermitioa or 'Gr.m Rcvcnucs• set fonb in Section 2 above, Gross ReveDuc:s shall mea.a all ~ (aclusive of sales W<) colleacd by Grwee from optmioa of ulilities prnvidod by aod throu&h the Sys~ea> iosullod punuant to this Agreemem, and my related ..me:.. (as may be applicable) ptovidod by 1hc Gran« 110 laler thUI ninety (90) days afu:r t~e cad of of the Gnr:ee's rLSCII year, a SU1eD1py or a repon in a form to be prescribed and =eptable to the Ci1y in sufficleru detail to itemize revenues from each of the catqoric:s idemif"ICd in Sectioo 9. Tbe City may. if it .... fit, bave the books :md n:cords or a ....... eumiDcd by • represenwive or the City 10 a=rt~in the COmct!IOSS or the repona agreed 10 be fded berein. C. a ....... shall roponto the Cily such otller reasonably related Womwioa relatiaa to aramee :mel the City as the City may consider useful and. reasooal>ly necessary md shall comply comply with tile Cily's derermiaalion or forms for ropona, tile tintc !or ropona, tile !n:qu.ea:y wilh wbich any ropona are 10 be made, :mel if ropona are to be made UDder oalh. D. aramee shall provide tile Cily with access at reasonable times md ror reasoaahle purposes 10 eumiae, audit, :md ...,;.., ar.uuee's books, accouDIS, doeumeDIS, maps, plam ODd other records pertaiDin& 10 this AJ=II'OIII. araat= shall fully cooperm in makiDJ availal>le its records and olberwise mistiD& in tbi=sc activities. E. The City may, at aay time, make inquires pemininJ 10 tile operuina or the System, md araat= sh:all respoad 10 suci, inquiries on a timely basis. F. araruee sball p10vide the City with aotices or all petitioas, applicatioos, c:ommunieatioos and repons submitted by Gnotee to the FCC, Securities and EK.b:m&e ComrolssioD • Texas Public Utility Commission; Teus Natural Rt.~ Conservation Commission, other relevam: commission or agency. or their successor ageocies. spec if ally relating to any mattets affecting the use of City streeLS, alleys. and public: rights-of·Wil)' and/or Slnd:I\.IM ucl Rntal .\p'tftDall· Pqe 9 ot :6 DOC I: 1U)oll 97084 0290~ .-~"'. the utili!)' operations authorized pui'SIWiliO this Agrecmem. Upon wriuen requ=ilom Cil)', Gn.ruee shall provide the City with copies of all such doc:urne:rU1tion. Section 11. Rules and rqulaUons. A. The Cil)' may esubiW., after reasonable notice and beuin&. sueh rules and ~q~~lations as may be in the public imetest reprdiag GnDtee oper:atioo or the Sysas, the City shill bave full power and autlloril)' frem Grantee to (i) iaspeet, or ause 10 be iaspec!Cd, the boola and reeonls of Grantee, (li) ia;~cntcry and appr2ise, or cause to be inveruoried or apprai!cd, the property of GraDiee wil:hi:D. the Town of Addison, and (iii) ol:!tin aceess 10 retcv= boola and records. C. -The Cil)' merves the right 10 ~q~~lale the taleS, cbarges and fees or G...rcc as the City may be now or hereafter authorized or anpowered to so reguWc mer ooticc a.ad haria& 10 Grantee. Section 12. Insurance. A. Grantee shall obtain and maintain in full fotee and effect thtoughout the tcntt of this Agreement, and any extension or Rncwal thereof, imurm:e with an iasurm:e com:pmy licensed to do business in the State of Tau, approved by lhe State of Tcw iiD1 a.=qahle to the Cil)'. AU companies will be required 10 be ra!Cd A-VIorbeDcrby A.M. !lest or A orbcttl:r by SW>danl and Poon. The iDsunDce shill be issued in the staDdud form apprevcd by 11>c State Board or Imuroacc. Gt2Dtec shill previdc City with proof of sueh iDsmm:c so required at the time or the uccutiOD or this Agrecmem. Tbe Cil)' reserves the rip tD review -imunace RqUircmcntS durin& the effcctive period or tile A-IIIII my -or ......,.! thereof, and 10 adjust iDsunnee .,._ and tlleir limia wbea reasoaahly deemed oe<:essary and prudetll by the Cil)' Mmager, based upon ciwlles iD Sl2ttltDI)' law, court decisions, or the claims history of the iDduslry or the Gnntee. B. Subjecl to !he Gt2Dtec's ripiO maiDtaiD reuomble deduelibles in such amoums as are approved by tbe Cu:y, GnDtec sball obtain and maiDiaiD in fltll fOtc< and efrccl for d>c dumiau-of this this A..-, alld 11tf atomioa or~ lhercof, at Gnntee's sole upeose, imun.oce polic:; :overaae iD the rouowq rype IDd minimum a.moums: ... TYPE (I) Worker's Compensation and Employer's Liabllil)' (2) Commetcial Geoenl (public) Uabilil)'. • 10 include coverage for the followina where the exposure exists: ~ Use ud JUBW Aarttmnt • Pap 10 ar :6 DOCIISJU.U AMOUNI" StltUIOI)' SSOO,OCO/SOO,OOO/IOO,:JOO 97081! 02904 . ·;·fr:A('i_.~ ·~.: .-' •. . .... ~ .... ! ·-. <•> Premises opentioDS (b) Jndependcrll ccnlnC!OaUOI liallilicy (f) Explosion, eolbpse and W>derground propetty domogc (3) Comprehensive automobile insurance COYer.IJC for loading ilnd unloading l=ords. for. (a) · Owncd/l=cd automobiles (b) Non-ow«days notice to the Cicy for aoCWII, or mau:rial chaaac; (3) Provide for ootice co tho Dim:tor of Finmce by certif&Cd mail; and (4) Provide that all provbioDS of the AgrcemO::U, IS amcoded, CODCCnlinl liabili<)', ducy, :md scaadard of :on:, includil:g !he lndclllllicy of this AgRCIIICDI, siW1 be $tnda u. ad Radal AlfftiD&Id • Pap II ar 16 ..., . ...,.. 97084 02905 .. underwritlen by COOU'aCDial covea,c: sumcient lO inciWe such obligations within applicable policies. E. The insuroncc policies obtainod by Grand ia writin& to provide aptaaation or doc:umeaa.tion to support that tbe violation did DOl ca:ur. Granu:c sball be allowed thirty (30) day> to cure violatioos after wriaen notice is received from the City. Upon evidence being received by lhc City that any Vil!lation of this Agreemm&, UJ.Y Ciey Chane1 provisions, or any ordiDm:s lawfully RCUlatiD& Gramcc iD the conmuctlon IDd operation of its System is ocaurinz, or bas ~urred. me Cil)' shall cause an invesdptioa t:J be made. 1r lhc CiEy rmds that such a violation exists or has occu"l'Cd, the Grarucc sball take appropriau: su:ps to comply with the u:rms of this Aarccmcot and any lawful regulation. Should Grantee fail to eomply, after notice ;md opportUnity to to cun:,lhcn lhe City may l2ke my ldion authorized by law, including (a) forfeirure of lhis Ag!'eCmCill in W event of a substantial breach Stneu u .. •ad lttabl Al"ftiMS'l· Pip 12 or 16 DOC' 1': lSI)& I 97084 02906 ... under Sc:ction 15, and (b) a sull in couR to compel compliance. It, in any suUI proc:ceding, default is liaally cmblisllCd by such judBJIICOl or oilier, 10 eorrca !be default and pay -"UP""=', damaacs and COSIS as ~may be adjuda rc11ioed by !he C~ Wider !his Agreement or otherwise, the City reserves lhc righl to lmrtinate tbis Agrecmeru, aDd all ri&hts and privileJCS or Grantee bcrcuadcr shall cease in tbc event or substwW breath, subject tD reasonable notice and oppomm.ity to cure provided in Section 14. or ils tcnns and conditiom. A subsuruial breach })y Grantee shaU iDclude, but shall DOl be limited ta, the followia&: (1) Graruce's violation or any material provisicn or the Agreement or any material rule, order, regulation or d.ctcrmiaa.tioa or the City made pumwn co this AJrCcmcru; (2) Gnnlft's failure 10 pn>perly eompensa1elbe City as tnlft's failure 10 respond 10 or comply wilh City RqiiOSInlft's malerial misreprc5CIIIllioo or faa In ils applil:alion or oeaOiimom durina lbc aarcemeot pn>CCSS: orlbceonvictionofany clircelor. off=, c:mployec or qea< or G,..... for !he oflnlft. . B. This Aarcemen• and !he ........., crcaled berc:llllder may be lei1Dimled in lbc eYCIII Gr>n~ee aba::doos !lie we of lbc public righls-<>f·W>y for !be purposes set forlh bcrciD. Such abandoomenl may be evidenced by uoti<.e from Graruec swina !hal G...,.. :S abandoninl • . ~ of lhe date set fonh in the notice, this Agr=mC11l and the c::a.semtms aeated be:rew:XIcr. Strats u. .II. Rcabd Aarecm•nl • Pqc 13 or 16 DCIC lr.ISiloll .. 97084 02907 Section 16. · Miscellaneous. A. A.ssigrurr.tnl: sucusson. (1) Gn.ruee shall have the right to license or otherwise pennit prin~:c utility providm usc of the ri&hts, privilqcs, duties and obliaations JRRted to and a.ssumed by Gr2JUCC pwsuaD& to thi.s AJTCCf1lCnl:, provided chat issuance of aay such license or pcnnit or other method of conveyance of any rights or obligations hereunder shall not release or relieve Gruuee of its obliplions co the City pursuant 10 this Agreement and shall be subjea to the following: (a) No such license, pc.nn.il, or other method of conveymce of any of the righD mel obligations hereunder shall be effective umil such time as the same bas been approved by tbe City Council or the City Manager, which approval shall not be unreasonably withheld. (b) Any such license, permit. or other method of conveyance shall provide thar. the holder thereof shall comply with and be subject ':0 all terms and conditions of this Azr=:m=t. (2) Except as provic!ed in paragraph A(l) of this Section 16. o:iti1a" this Arree=<. the assets held by G~cc for usc under this Aarcemcru, any ri&hts or privilea;c:s of Gram= under this Agrecmen:, Grantee's capacity in lbe System, or allowucc of access lO tbe System, either separately or collectively, sball be sold, resold, assipcd, tnmremd or otberwise conveyed by Grantee lO any other penon or fl11D, except an AffilWe, without lhc prior wrin:u consent of the City by ordinance or resolution liDless otlle!wisc penniD.ed in this Agreeme or any or its rill>ts or ils iruerests anllc:r this Agrecmc:nt. or auempt to do so, in violation or lhis rquirmlcDt to obcaiD prior COilSCDl. lbe City may. after notice and rasoaable opporti.J.D.ity to cure, deem. sw:h tram:fer as a mau:rial or submD!ial breach and. in xcord.aoce with Section IS. revoke this All'="'"' for de&ult. in wbicb event all rill>ts and inu:mt of the G!"WC< shall ceuc IIIII J10 purported sale, assipment. uam!er or conveyance shall be cr!ccriYc. B. Forr:e Majture. In the evetU either the City or Grantee shall be delayed or blndcm1 in or prevented from the performmct or any act rcquiml hereunder by rasoa. ot fire, c.uualty. strikes, lockouts, labor uouble, inability lO procure matc:.riah or su.pplie:s, f'aihlrc o! power, govemmcmalauthority, riots, insuneccioas, war or Oth:r reason of like camre, wt:re such clelay. billderm:e or prevention or perfoi'DWIC< shall not be within the rwolllble co111r0l ot the party obligated to perform and not be avoidable by diligence, Lite pUt)' so delayed :sbal1 Strnu U• uc1 Rmbl Aaracmut • raac 14 e~r 16 OOCII.lllloll ~:~=~ 02908 ......... pn>mpdy sive DO vidcd for herein shall be &iveo by wrinen insllumeol, pcnonally delivered or ..., by ...ur...s mail, rvisioo bad ,...... bceo iD:Iuded in this Agm:mem. F. Entirr Agl"fltnWII. lbis Assiptlcol Asr=mn rod found Mth "Huln-Zollan" cap; lllENCE. North 00 dcpcs 06 mioiiio rod found Mth "Hula-Zollan" cap at the most northerly . nonhc:ast earner of said pW: tHENCE. Soulh 19 dcpcs Sl miniiif-way line of Quorum Drive a diswlce o£601.16 feet to a 112 inch iron rod fowul wit.'1. '"Hu.in-Zollan'" cap ar. the bqioolog of a cum: 10 the ri&bt bavin-a radius of I .392.39 feet; THENCE continu.iaa alona said west rigtu-of·"'-"'Y line and aloD.& said curve to the ri&ht lhmu&b a ccotral angle of 06 dqrcc:o OS minUleJ 10 =onds. an an: distaoce of 147.90 feet. beina subteoded by a cbonl wbicb bean South Ol deg=s S"l minutes 48 seconds West, and is 147.83 feet. i.a IC'DIIh m a 112 incb iroD. rod foWld with ·Huin-Zollars• ap: EXHIBIT ·A •. Prcpcny De:scription ·"P.J,r ; 970Bt. 02913 TMP.o~C.E South 07 dqrees 00 minuzcs 23 seconds Wes1 continuins: along the west ri;ht-of-way line of Quorum Drive a dLstance of I U7 feet: to a 112 inch iron rod found with •Huin-Zollars. cap in the said north right~f-way line of Mildred Sftel: THENCE Nonh 82 degroco 48 minutes 27 seconds Wm along the Nonh riiJht-of·""'Y line of Mildrod St=t a di•tancc of 1".53 feet 10 a 112 inch iron rod foiU!d with "Huin-ZoiW." cap at the bcgiM.in& of a c;w"Ve to the left. havia& a l'ildius of 156.0) feet; THENCE. in a westerly dirmion alona said Me to the left throu&h a cenn1 angle of 07 ckg:ren 00 minutes 45 seconds. an 111: distance of 104.71 feet. brin& suble'Dded by a chord wttich bean Nonh 86 degroco 18 mil)u.., 50 seconds West. and;, 104.71 feet in length 10 a 112 inch iron rod found with ·Huin-Zouan· cap; THENCE. North 89 dqrcn 49 miawcs 12 seconds West continuing alons: the north ri&ht-of-~-ay line of Mildrod S~~eet a di:IWICC of 209.35 feet to the POINT OF BEGINNING and CONT AINrNG 8.413 acres of land. more or less. pacr J: BEING a trut of la.nd siawed in the G.W. Fisher Survey. Absaac't No. 482. in the Town of Addi.son. Dallas County. Texas. and being a portion of a trXI of laDd as r=ordcd in Volume 84151. Page 3619 of the Deed Reconb of Dallas Couney, Texas. and being more particularly described :IS rona ... : COM.'tlENCINCi at a 112 inch iron rod found o..vith •Huitt-Zollars• cap lllhc intcncction of the oonh riiJht-of·way liae of !be SL LoWs and SoudlwestcmiW!rood. a 100 foot wide ril!ht-of-way. with cast rialu-of-v.11y line of Quorum Drive as C'SIIblisbcd by iDsaumcnt lO the Town of Addison. TCJW as recorded in Volume 82093, Page 1077 of the Deed Records of Dallas Couney, Texas: THENCE Nonh 00 degroco 01 minuu:s 00 seconds East aloog die east right-of-way line of Quorum Drive a distance of 96.69 feet to a 112 inch iron rod found with ·Huin-Zoltan• cap a1 tbe bqinn.ina of a c;w"Ve to the right havin~ a radius of 1392.39 feet: THENCE contil.Wna alona said cas& ripu..gf.way line of Quorum Drive and alon1 said c:urve to the riiJht threuiJh. central:lllale o£06 des= 52 minutes 2l secoodJ. .. an: clisw>ce or 167.03 feeL being subteilded by a chord which bean Nonh Ol degroco 34 minutes 11 ,...,ads East. aod is 166.93 feet in length lO a lfZ inch iron rod found with ·Huin-Zo:lus• cap; EXHIBIT .. A'". Property Dncription ·Page .a 97081! 02911! 1 l i ! ! \ l I I J rrlENCE Nonh 07 dcgrccs 00 minutes 23 seconds East continuin& aJonglhe east righ.t~f·w.lY line of Quorum Drive a distance of 143.16 feet to a lf2 inch iron rod set wilh •Huia·Zoltan• cap at the POINT OF BEGINNING; THENCE Nonh 07 dear= 00 minui Parbray aad aloallbe c,cr,a U. or._ mamaa.4 OpubcD na a di-.-. of 41.01 t.tD a CDH:aJ/iac:b itaa rod. b1Dd wtdl11lllil:r..ZCillrs• c:ap •=-_.... ~ olsaid: Oplabc:o na. aid canter bliq dl.ltqi=iq of DOQoC&apal dii"N ro cb ld ltmq a tlltial al2.,H4. 79 c.; Tl!ENCE. .-......... -.... r.a40paboo ~r~c~u4aJoo1 ,.._ ~~ooorDollu-,.-1 cazaa1 *"'Jt' orO I ~,. ..... 2t ~ IIi arc:~ o(91.74 fm. IDd bdq ~ by 1 ct.onl bdftq S01i11b 12 ...,_. OS aUnta 47 ...a !.-a &aoc:a or 'L13 r.ro a~ iDa na, rod lbr;Dd wida • '"Haii&-Zollln. cap; niEI ... h: TTo:P !::tnif 'RPnt!tl APreement. Paee 14 of 16 l. __ promptly give notice to the other party, and thereupon performance of such act shall be excused for such period of delay. C. Notices. Any notice provided for herein shall be given by written instrument, personally delivered or sent by certified mail, return receipt requested, and addressed to: To the Citv: Town of Addison, Texas P.O. Box 144 Addison, Texas 75001 Attn: City Manager To Grantee: 15851 Dallas Parkway Suite 855 Dallas, Texas 75248 · Attn: President D. Governing Law; Venue. This Agreement shall be construed under, and in accordance with, the laws of the State of Texas, and all obligations of the parties created by this agreement are performable in Dallas County, Texas. Venue for any action under this Agreement shall be in Dallas County, Texas. E. · Legal Construction. In case any one or more of the provisions contained in this Street License Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any .other provision of the Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been included in this Agreement. F. Entire Agreement. This Assignment Agreement represents the entire and integrated agreement between the City and Grantee relative to encroachments into the public rights-of-way as described herein supersedes all prior negotiations, representations and/or agreements, either written or oral. G. Amendment. This License may not be altered, waived; amended or extended except by an instrument in writing signed by the City and Grantee. H. Authority to execute. The undersigned officers and/or agents of the parties i).ereto are the properly authorized officials and have the necessary authority to execute this Street License Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. OFFICE OF THE CITY SECRETARY ORDINANCE NO. 096-037 Str•eh lise and Rental A!!Teement -Page 15 of 16 I I, I \ EXECUTED at Dallas County, Texas on the day and year first written above. TOWN OF ADDISON, TEXAS By:'----:-:----::-=::--:--:---Ron Whitehead, City Manager ATTEST: By=-----:-::---:=:---=----- :--Carmen Moran, City Secretary OFFICE OF THE CITY SECRETARY co._ __ ,. .. TT .... ..... ..::~ u .. T'It1'>mPnt -Paue 16 of 16 ADDISON CIRCLE ACCESS INC. By: _______ ~----~~=------------'- --ORDINANCE NO. 096-037 i L_ EXIITBIT A LEGAL DESCRIPTION OF ADDISON CIRCLE PHASE I OFFICE OF THE CITY SECRETARY '· ' ORDINANCE NO. 096-037 ? ,. E "' 4 ~ t:l 1\1 1\1 ,... [ ~ "' J! ~ y -1-~ 1\1 .--~ !' l ~ it ~ .~ ll.. .~ ,_ -=::] ~ ·-~ "'. .=:1 Q:,Va,J~.?.f2?n!:l lncY!~IIos~!~~~!J .b.EE.CBClFTHE CITY SECRETARY 'i I I I_---EXlllBIT B LEGAL DESCRIPTION OF ADDISON CIRCLE PHASE I OFFICE OF THE CITY SECRETARY C! ..... ., .. ,.,.. TT ...... """~ v ... nt-::~1 AorPPmPnt-PaQ'e 18 of 16 '· ' ORDINANCE NO. 096-037 To: From: Date: Re: RonWhiteh~ Bryant Nail · May 24, 1996 MEMORANDUM Addison Circle -Streets Use and Rental Agreement Attached is the form of Streets Use and Rental Agreement prepared by John Hill on which we have interlineated suggested changes. I would like to provide you with our reasoning for the major changes: I. We have suggested that the "Grantee" be Addison Circle Access, Inc., a Texas corporation ("Access"), which will be owned by Columbus Realty Trust ("Columbus") and Gaylord Properties, Inc. ("Gaylord"). Since Columbus and Gaylord may have varying degrees of ownership in difference phases of the development, we propose to establish Access, the sole purpose of which would be to control the license rights within Addison Circle. Access would not provide any utility services, but would, in effect sublicense its rights to other private utility companies. This would allow the owners of the phases to select and manage their private utility providers while allowing a continuity of relationship and communication with the City of Addison. If required by the City, Columbus and Gaylord would guarantee the obligations of Access to the City. 2. We have suggested that the term of the Agreement be perpetual. Section 6(B)(5) on page 7 of the Master Facilities Agreement provides that streets will be dedicated by the phase owner "free from any liens or encumbrances thereon except for any private utility easements ... " If the phase owner reserved a private utility easement, it would be, like virtually all easements, perpetual. If we agree to the Streets Use and Rental Agreement rather than an easement, as called for in the Master Facilities Agreement, we should receive a perpetual right. 3. We have proposed a 2% fee rather than a 5% fee. First, the provision in the Master Facilities Agreement referred to above, does not call for the payment of any fee to the City. Second, if we were developing a normal garden style apartment project rather than the new high density model, which the City is desirous of promoting, we would not need the license rights and we would not be required to pay any fee at all, and the added cost of such a fee puts us at a competitive disadvantage with operators of garden style projects. We need to reduce the fee as much as possible to reduce the competitive burden. Additionally, some of the utilities • provided may come from franchise providers so you may be, in effect, collecting a fee twice. For example, if we offer telephone service through a private switch, we will still purchase trunk lines from Southwestern Bell. If we do that Southwestern Bell will pay a franchise fee on the amount we pay for the trunk lines and we will pay a franchise fee on the resale of this services, resulting in a double-dip. DA961440339 052496 v2 186:3012-65 -2- Gtrt:".ets Use and Rental Agreement ( 11Agreement 11 ) STATE OF TEXAS § and Aadison Circle Access, Inc., a Texas corporation ( 11Grantee 11 ) § STREETS USE AND RENTAL AGREEMENT COUNTY OF DALLAS § This Utili!y Agreelfteftt is entered into this day of , 1996 by and between the Town of Addison, Texas (the "City"), Ga)lotd Ptoperties, Ine., 11 Teltll9' eeft3aratiea ( .. GayleFS 11), aati Cehu:JJ.tnu Rial~' Tmst, a. Tixas real esG!te iavestmeat tRist ("Cehua9l:IS 11). RECITALS WHEREAS, Addison Circle One, Ltd., a Texas limited partnership (the "Partnership"), is the owner of certain real property described in Exhibit A attached hereto and incorporated herein ("Phase I"), and Gaylord is the owner of certain real property adjacent to Phase I described in Exhibit B attached hereto and incorporated herein (the "Gaylord Property"; Phase I and the Gaylord Property are hereinafter collectively referred to together as the "Property"); and Realty Trust, a Texas real estate investment trust II II WHEREAS, Columbus. and Gaylor are the partners in the Partnership and have previously worked with the City in regard to zoning for and the development of the Property, (Cohtlftblts ltftii Garlora lleiag liereinaf:'k!r r~fl:~e te as tll.e "'draRt&u"), which development is to include a mix of uses including multi-family residential, retail, office and civic uses within an urban framework; and Columbus and Gaylord I\ conjunction with r permit ~-~ WHEREAS, inJthe development of the Property, aAntee desire-to ~Fe\·iae certain utility services to the Prope through a privately-owned utility system, such services including, but not being limited to transmission of water, electricity, natural gas, steam, video signals, audio signals, tele e signals and data. to be prouirled -NOW, THEREFORE, for and in consideration of the mutual covenants and obligations set forth herein, the benefits flowing to each of the parties hereto, and other good and valuable consideration, the City ./}J~letd MKi Col!tmblts do hereby contract and agree as follows: an an rantee Section 1. Incorporation of premises. The above and foregoing premises are true and correct and are incorporated herein and made a part hereof for all purposes. Section 2. Dermitions. For the purpose of this Agreement, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein unless more specifically defmed within other sections of this Agreement. When not inconsistent with the context, words used in the present tense include the future tense, words in the single number include the plural number. The word "shall" is always mandatory, and not merely directory. A. ..AdBisea Cirele Mea" shall meaa all ef that Mea depieteB eft EJthibit __ atmeheQ J::ierete aAd iACOI=pOrated herein far all p11rpases. WHEREAS, Columbus and Gaylord are the shareholders of Grantee; and Reservation Agreement -Page 1 of 16 DOC II: 351341 Grantee or the private util~ 1 providers B. "Affiliate" means a corporate parent of either Gaylord or Columbus owning more than 50% of the shares of Gaylord or Columbus, a partnership or joint venture in which Gaylord or Columbus owns an interest of more than 50%, or a subsidiary entity of Gaylord or Columbus in which Gaylord or Columbus own a more than 50% interest. c. "Agreement Date" means the __ day of -----------• 1996. two (2%) D. "Annual Gross Revenue Based Fee" means an amount equal to H¥e percent t5"%7 of CFafttee's Gross Revenues received by GranteeAduring the year fefl\the operation of the System. !1:2!!!1 E. "City" shall mean the Town of Addison, a home-rule municipal corporation. Access and its F. "Ce~aay ... er "Grantee" shall mean, ~egether, the PftrtilCt~lrip, Culuurbus and oa, lertl, their successors and assigns. G. "Compensation Year" means each calendar year during the term of this Agreement in which General Compensation is paid by Grantee to the City. H. "Day or days" shall mean a calendar day or days. I. ·"General Compensation" means the amount Grantee is required to pay City under Section 3. J. "Gross Revenue" shall mean all receipts collected by the._~G;r~an~t;e!eA~fo~r~al!lj----. communications and related operations and services within the, ef tlil!l Ci~ as well as any other revenue arising from the operation or possession of this Agreement. By way of example, but without limitation, "Gross Revenue" includes the sale or lease of customer premise equipment, installation charges, access charges paid tol{he Company by other carriers, street use and rental fees and occupation taxes surcharged to customer, and the lease or resale of lines or circuit paths to third parties. "Gross Revenue" does not include revenue uncollectible from customers (bad debts) or payments received for construction reimbursement. K. "System" means the utility system installed and maintained by the GranteeML_ described in Section 3 of this Agreement. I · ~P~r~o~p~e~r~ty~-----------, Section 3. Grant of Certain Rights. The City hereby grants to Grantee, the nonexclusive right and privilege to construct, expand, reconstruct, maintain, use and operate in, along, across, on, over, through, above and under those public streets, alleys and rights-of-way of the City which are contained entirely within the A""' c; ·" A a, a utility system (the "System") for certain utility services including, but not limited to, the transmission of water, electricity, natural gas, steam, video signals, audio signals, telephone signals and data. Grantee Reservation Agreement -Page 2 of 16 DOC N' 351341 shall not provide services directly regulated by the Texas Public Utility Commission ("PUC"), the Texas Natural Resources Conservation Commission ("TNRCC"), or any other applicable state commission or agency, unless authorized by the PUC, the TNRCC, other state commission or agency, state or federal law. This grant is made to Grantee solely for the purpose of directly serving its end-user customers. Section 4. Construction, maintenance, expansion, reconstruction, and excavation. A. The construction, expansion, reconstruction, excavation, use, maintenance and operation of the System and other property used in connection therewith shall be subject to all lawful police regulations of the City and performed in accordance with the City's regulations for utility location and coordination. In addition to any other City regulations or requirements, at least thirty (30) days prior to the commencement of construction or maintenance within the City's rights-of-way, Grantee shall provide the City Engineer (or such other officials as the City may designate from time to time) each with a copy of the construction work plans and drawings. Grantee shall not proceed with construction within the City's rights-of-way until the plans and drawings have been approved in writing by the proper City officials. B. Upon request of the City, Grantee shall remove and abate any portion of the System that is dangerous to life or property, and in case Grantee, after notice, fails or refuses to act, the City may remove or abate the same, at the sole cost and expense of Grantee, all without compensation or liability for damages to Grantee. Grantee shall promptly restore the public streets, alleys and rights-of-way to their condition prior to Grantee's construction, maintenance, or excavation, to the reasonable satisfaction of the City Engineer. Grantee shall excavate only for the construction, installation, expansion, repair, removal, and maintenance of all or a portion of the System. C. Except in an emergency, Grantee shall not excavate any pavement in any public alley or street or significant amounts of any unpaved public right-of-way without first securing permission of the City Engineer, but such permission shall be given if the proposed excavation is in accordance with the terms of this Agreement. The City Engineer shall be notified as soon as practicable regarding work performed under emergency conditions; and Grantee shall comply with the City Engineer's reasonable requirements for restoration of any disturbed public property. D. Within thirty (30) days of completion of each segment of the System, Grantee shall supply the City with a complete set of "as built" drawings for that segment, shall keep a copy of all "as built" drawings at a location within the Property and shall notify the City of that location. Further, after each replacement, relocation, reconstruction, or removal, Grantee shall promptly notify the City of the exact changes made and shall provide a new set of "as built" drawings of each modification to the City Engineer. QraatG8 saall f!FBYiEie aflftllally a e6mplete sGt sf "as 'En~ilt" Eirawings im:erperating tlles11 sl!aage~. Grantee shall obtain the City's approval before anysystem changes are made. Section 5. Term of Agreement. Upon the filing with the City by the Grantee of the acceptance required herein, this Agreement shall be in full force and effect fer a tefft! aftti f!eri6d perpetually, subject to term1nation by Grantee upon thirty (30) days notice to City, or termination pursuant to the terms of this Agreement. Reservation Agreement -Page 3 of 16 DOC#' 351341 ' renewed for one subsequent ten (1 0) year period unle prior written notice o e other and the other shall have responded their Section 6. Construction work regulation by City and underground conduit used by City. A. All work done in connection with the construction, expansion, reconstruction, maintenance or repair of the System shall be subject to and governed by all laws, rules, and regulations of the City, and Grantee shall place the System facilities underground according to reasonable requirements that may be adopted from time to time by the City; provided, however, Grantee shall be given due notice and shall be entitled, upon request, to a hearing before the City Council of the Town of Addison prior to the adoption of any such future requirements, and further provided that Grantee may present evidence to demonstrate that such requirements will substantially impair its ability to recover its operation expenses. All excavations and other construction in the public streets, alleys, and rights-of-way shall be carried on to interfere as little as practicable with the use of public and private property and in accordance with any direction given by the City under the police and regulatory powers of the City. B. Subject to reasonable availability and agreement between the parties concerning maintenance, access and security, Grantee may be required by the City to construct portions of the System, or all of the System, underground, er te sl!efe Elaet H'e~il. ~p·ce owned and mainmined ~y any ether pet=sea er oRtit;y llf>BR t=ease~le, BBR elissriminateey tefffts afttl at fair mal'ket vala.:. The intent of this section is to encourage shared use of the infrastructure and decrease excavation of the City's rights-of-way. C. Any facilities of other persons or entities that are attached to or within the System facilities shall be placed, replaced, maintained and removed in a safe manner so that the attachment does not interfere unnecessarily with the erection, replacement operation, repair or maintenance of the System or or other persons or entities using the System. Grantee shall not be required to share trench space with any other person or entity franchised by the City. if it ean • 0 • • • 0 • • entity are not of the ch construction required by, or are not being maintained Reservation Agreement -Page 4 of 16 DOC 1: 351341 Section 7. Work by others, construction by abutting owners, alteration to confonn with public improvement. A. The City reserves the right to lay and permit to be laid, sewer, gas, water, and other pipe lines or cables and conduits, and to do and permit to be done, any underground and overhead work that may be deemed necessary or proper by the City in, across, along, over or under any public street, alley, or right-of-way occupied by Grantee, and to change any curb or sidewalk or the grade of any street or other public right-of-way. In permitting such work to be done, the City shall not be liable to Grantee for any damages not willfully aRdndirectly caused or by the sole negligence of the City; provided, however, nothing herein shall relieve any other person or entity from liability for damage to Grantee's System. All work performed will be in accordance with the City manual for Utility Location and Coordination. B. In the event that the City authorizes abutting landowners to occupy space under the surface of any public street, alley, or right-of-way, such grant to an abutting landowner shall be subject to the rights herein granted to Grantee. In the event that the City shall close or abandon any public street, alley, or right-of-way which contains any portion of the System, any conveyance of land contained in such closed or abandoned public street, alley, highway, or rightof-way shall be subject to the rights herein granted. C. Whenever by reason of the changes in the grade of any street or in the location or the manner of conStructing any water pipes, gas pipes, sewers, or any other underground or overhead structure for any City purpose whatever, it shall be deemed necessary by the City to alter, change, adapt or conform a portion of the System thereto, such alterations or changes shall be promptly made by Grantee when ordered in writing by the City. If such requirements impose a financial hardship, Grantee may present alternative proposals to the City, and the City shall give due consideration to such alternative proposals. The City shall not require Grantee to remove its System facilities entirely from such public right-of-way. The City shall have the right to require Grantee to adapt or conform its System facilities, or to alter, relocate or change its System facilities to enable the City to use, or to use with greater convenience, any public street, alley or right-of-way. If the City requires Grantee to adapt or conform its System facilities, or in any way or manner to alter, relocate or change its System facilities to enable any other entity or person, except for the City, to use, or to use with greater convenience, any public street, alley or right-of-way, Grantee shall not be required to make any such changes until such other entity or person shall have undertaken, with solvent bond satisfactory to Grantee, to reimburse Grantee for any loss or expense which may be caused by, or arise out of such change, alteration or relocation of the System facilities; provided, however, that the City shall never be liable for such reimbursement. D. In the event that Grantee has not relocated those of its affected System facilities which are located in a public street, alley, or right-of-way within a reasonable length of time (as determined by the City's Engineer) prior to the City's commencement date for public street, alley, or right-of-way construction or reconstruction, the City shall have the right to relocate or cause to be relocated the affected portion of the System, and the Grantee shall reimburse the City for all costs of relocation. Reservation Agreement -Page 5 of 16 DOC#: 351341 E. During the term of this Agreement, Grantee shall be liable to the City for the acts or omissions of any entity used by Grantee (including an Affiliate) when such entity is involved directly or indirectly in the construction, installation, maintenance or operation of the System as if the acts or omissions of such entity were the acts or omissions of Grantee. Section 8. Compliance with City Charter. Grantee recognizes, accepts and agrees that the terms, conditions, and provisions of this Agreement are subject to the applicable provisions of the Town of Addison Charter. Any request by Grantee for a modification to this Agreement shall be subject to review by the City Attorney for compliance with the applicable provisions of the City Charter. Section 9. Compensation to the City. A. B.. General Compensation. For the reason that the public streets, alleys and rightsof-way to be used by Grantee in the operation of the System within the boundaries of the City are valuable public properties, acquired and maintained by the City at a great expense to its taxpayers, and that the reservation to the Grantee of the use of said public streets, alleys and rights-of-way is a valuable property right without which Grantee would be required to invest substantial capital in right-of-way costs and acquisitions, the Grantee agrees to pay to the City as general compensation during each year of this Agreement and for eaeli ~·jle ef utility service (including but not limited to electric, gas, telephone, water and cable television) provided through and by the System facilities, a sum equal to the gieatei gf tl:ie Uinim ,<\mwal ~ee er Annual Gross. Revenue Based Fee. J:Re Mmimum A-A~Yal ~ee fer ~e flfst year ef el'eratien shall he $ B. \;. Calculation and Payment on a Quanerly Basis. For eaeli ~jle ef utility service provided by the Grantee by and through the System, Grantee shall pay to the City for each calendar quarter an amount equal to !He gRater ef: (i) eae feuFtk (1 '4) ef tlw MinimYm AL.-.Jlaal Iiee, salealateEI ea tlte Basis ef a t:welve meBth CempematioA Year, or 2% w ~ of Gross Revenues for such quarter. payment The greater sf EB er Eiil above shall be referred to as the "Quarterly Payment." Grantee shall forward a check or money order in an amount equal to the Quarterly Payment by the fifteenth (15th) day of the calendar month immediately following the close of the calendar quarter for which the payment is calculated. Any necessary prorations shall be made. Reservation Agreement -Page 6 of 16 DOC#' 351341 following the Compe. ,tion Year Utilities c · D. Recalculation at end of Compensation Year. At the end of each Compensation Year, Grantee shall recalculate the total General Compensation actually due. If additional amounts are due the City by Grantee, said amounts shall be paid by the fifteenth (15th) day of the second month of the Compensation Year following the Compensation Year during which such amounts were originally due. If amounts are found to be due the Grantee by the City, said paid amounts shall be · by the fifteenth (15th) day of the second month of the Compensation Year during which such amounts were originally due. Any necessary prorations shall be made. The compensation set forth in this Section shall be exclusive of and in addition to all special assessments and taxes of what'ever nature, including, but not limited to, ad valorem taxes. In the event any Quarterly Payment is made after noon on the date due, Grantee shall pay a late payment penalty of the greater of: (i) $100 or (ii) simple interest at ten percent (10%) per annum of the total sum due. As used in this Section, Gross Revenues shall mean all revenues (exclusive of sales tax) collected by Grantee from operation of ea(;ll type of utility rovided b and through the System installed pursuant to this Agreement, and any related services (as may be applicable) provided by the Grantee within the qo~=porate limits of tile Cit¥ including but not limited to: Property (i) all telecommunications service revenue charges on a flat rate basis; (ii) all telecommunications services charged on a usage sensitive or mileage basis; (iii) all revenues from installation service charges; (iv) ·-all revenues from connection or disconnection fees; (v) all revenues from penalties or charges to customers for checks returned from banks, net of bank costs paid; (vi) all revenues from equipment sold or rented to customer upon customer premises; (vii) all revenues from local service; (viii) all revenues from authorized rental of conduit space; (ix) all revenues from authorized rentals of any portion of the System, including plant, facilities, or capacity leased to others; (x) unrecovered bad debts charged off after diligent, unsuccessful efforts to collect are excluded from Gross Revenues. Payment of money under this Section shall not in any way limit or inhibit any of the privileges or rights of the City, whether under this Agreement or otherwise. Grantee shall file annually with the City's Director of Finance no later than ninety (90) days after the end of the Grantee's fiscal year, a statement of revenues (for that year) for each type of utility service provided attributable to the operations of the System pursuant to this Reservation Agreement -Page 7 of 16 DOC'' 351341 certified as true and rrect to the best of the knowle ~ of an officer of Grantee. Any transactions which have the effect of circumventing payment of required agreement fees and/or evasion of payment of agreement fees by non-collection or non-reporting of Gross Revenues, bartering, or any other means which evade the actual collection of revenues for business pursued by Grantee are prohibited. Section 10. Accounts and other records and reports and investigations. A. Grantee shall keep the City fully informed as to all matters in connection with or affecting the construction, reconstruction, removal, maintenance, operation, and repair of the System, Grantee's account methods and procedures in connection therewith, and the recording and reporting by Grantee of all revenues and uncollectibles. B. Grantee shall keep complete and accurate books of account and records of its business and operations pursuant to this Agreement in accordance with generally accepted accounting principles. If required by the FCC, Grantee shall use the system of accounts and the forms of books, accounts, records, and memoranda prescribed by the FCC in 47 CFR Part 32 or its successor and as may be further described herein. The City may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting gross revenues and uncollectibles for purposes of Section 9. In order to determine the Gross Revenues received by the Grantee, Grantee agrees that on the same date that payment is made, as provided in Section 9, it will file with the City Secretary a sworn copy of a report in a form to be prescribed and acceptable to the City in sufficient detail to itemize revenues from each of the categories identified in Section 9. The City may, if it sees fit, have the books and records of Grantee examined by a representative of the City to ascertain the correctness of the reports agreed to be filed herein. C. Grantee shall report to the City such other reasonably related information relating to Grantee and the City as the City may consider useful and reasonably necessary and shall comply with the City's determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made under oath. D. Grantee shall provide the City with access at reasonable times and for reasonable purposes to examine, audit, and review Grantee's books, accounts, documents, maps, plans and other records pertaining to this Agreement. Grantee shall fully cooperate in making available its records and otherwise assisting in these activities. E. The City may, at any time, make inquires pertaining to Gr&atee's operation of the System, and Grantee shall respond to such inquiries on a timely basis. F. Grantee shall provide the City with notices of all petitions, applications, communications and reports submitted by ..Qweer to the FCC, Securities and Exchange Grantee Reservation Agreement . Page 8 of 16 DOC'' 351341 Commission and the Texas Public Utility Commission, or their successor agencies, specifically relating to any matters affecting the use of City streets, alleys, and public rights-of-way and/or the utility operations authorized pursuant to this Agreement. Upon written request from City, Grantee shall provide the City with copies of all such documentation. Section 11. Rules and regulations. A. The City may establish, after reasonable notice and hearing, such rules and regulations as may be in the public interest regarding Grantee operation of the System. B. In order to ascertain relevant facts, the City shall have full power and authority from Grantee to (i) inspect, or cause to be inspected, the books and records of Grantee, (ii) inventory and appraise, or cause to be inventoried or appraised, the property of Grantee within the Town of Addison, and (iii) obtain access to relevant books and records. Section 12. Insurance. A. Grantee shall obtain and maintain in full force and effect throughout the term of this Agreement, and any extension or renewal thereof, insurance with an insurance company licensed to do business in the State of Texas, approved by the State of Texas and acceptable to the City. All companies will be required to be rated A-VI or better by A.M. Best or A or better by Standard and Poors. The insurance shall be issued in the standard form approved by the State Board of Insurance. Grantee shall provide City with proof of such insurance so required at the time of the execution of this Agreement. The City reserves the right to review these insurance requirements during the effective period of the Agreement and any extension or renewal thereof, and to adjust insurance coverage and their limits whe eemed necessary and prudent by the City Manager, based upon changes in statutory law, cou decisions, or the claims history of the industry or the Grantee. reasonably B. Subject to the Grantee's right to maintain reasonable deductibles in such amounts as are approved by the City, Grantee shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension or renewal thereof, at Grantee's sole expense, insurance policy coverage in the following type and minimum amounts: (1) TYPE Worker's Compensation and Employer's Liability (2) Commercial General (public) Liability -to include coverage for the following where the exposure exists: Reservation Agreement -Page 9 of 16 DOC II: 351341 AMOUNT Statutory $500 '0001 500' 0001 1 ()() '000 (a) Premises operations (b) Independent contractors (c) Products/completed (d) Personal injury (e) Contractual liability (f) Explosion, collapse and underground property damage (3) Comprehensive automobile insurance coverage for loading and unloading hazards, for: (a) Owned/leased automobiles (b) Non-owed automobiles (c) Hired automobiles Combined single limit for bodily injury and property damages $3,000,000 per occurrence or its equivalent Combined single limit for bodily injury and property damage $1,000,000 per occurrence or its equivalent C. The City shall be entitled, upon request and without expense, to review copies of the policies and all endorsements thereto. The City may make any reasonable requests for deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, except where policy provisions are established by law or regulation binding upon either City or Grantee or upon the underwriter for any of such policies. Upon request for deletion, revision or modification by the City, Grantee shall exercise reasonable efforts to accomplish the changes in policy coverage, and shall pay the cost thereof. D. Grantee agrees that with respect to the above-required insurance, all insurance contracts will contain the following required provisions: (1) Name the Town of Addison and its officers, employees, board members and elected representatives as additional insured (as the interests of each insured may appear) as to all applicable coverage; (2) Provide for forty-five (45) days notice to the City for cancellation, non-renewal, or material change; (3) Provide for notice to the Director of Finance by certified mail; and ( 4) Provide that all provisions of the Agreement, as amended, concerning liability, duty, and standard of care, including the Indemnity of this Agreement, shall be Reservation Agreement -Page 10 of 16 DOC#: 351341 underwritten by contractual coverage sufficient to include such obligations within applicable policies. E. The insurance policies obtained by Grantee in compliance with this Section shall be subject to approval by the City, and such proof of insurance, along with written evidence of payment of required premiums, shall be filed and maintained with the Director of Finance during the term of this Agreement, or any extension or renewal thereof, and may be changed from time to time to reflect changing liability limits, as required by the City. Grantee shall immediately advise the City Attorney of any actual or potential litigation that may develop that would affect this insurance. F. Insurers shall have no right of recovery against the City, it being the intention that the insurance policies shall protect Grantee and the City and shall be primary coverage for all losses covered by the policies. G. The policy clause "Other Insurance" shall not apply to the City where the City is an insured on the policy. H. Companies issuing the insurance policies shall have no recourse against the City for payment of any premiums or assessments which all are set at the sole risk of the Grantee. Section 13. Indemnity by Grantee. Grantee shall indemnify the City, its officials, officers, employees and agents against, and hold the City, its officials, officers, employees and agents harmless from, any and all liability, actions, causes of action, lawsuits, judgments, claims, damages, costs or fees, including reasonable attorney's fees, for any injury to or the death of any person or damage to or destruction of any property resulting from or based upon, in whole or in part, any act or omission of Grantee, its officers, employees, agents, contractors or subcontractors under this Agreement. The provisions of this paragraph shall survive the termination of this Agreement. The terms and provisions contained in this Section are intended to be for the benefit of City and Grantee and are not intended to be for the benefit of any third party. Section 14. Violations. If the City has reason to believe that Grantee is in violation of this Agreement, the City shall notify Grantee in writing of the violation setting forth the nature of such violation. Within thirty (30) days of receipt of such notice, Grantee shall respond in writing to provide explanation or documentation to support that the violation did not occur. Grantee shall be allowed thirty (30) days to cure violations after written notice is received from the City. Upon evidence being received by the City that any violation of this Agreement, any City Charter provisions, or any ordinances lawfully regulating Grantee in the construction and operation of its System is occurring, or has occurred, the City shall cause an investigation to be made. If the City fmds that such a violation exists or has occurred, the Grantee shall take appropriate steps to comply with the terms of this Agreement and any lawful regulation. Should Grantee fail to comply, after notice and opportunity to cure, then the City may take any action authorized by law, including forfeiture of this Agreement in the event of a substantial breach Reservation Agreement -Page II of 16 DOC,, 351341 .provided in Section 14 except as peL_.J-tted in this Agreement under Section 15 and a suit in court to compel compliance. If, in any such proceeding, default is fmally established, Grantee shall be required to pay to the City the reasonable expenses incurred in the prosecution of such suit and all the City's damages and costs (including attorneys' fees), but Grantee shall be allowed either by the court in the judgment of forfeiture or by order of the City Council, a reasonable time thereafter, as fiXed by such judgment or order, to correct the default and pay such expenses, damages and costs as it may be adjudged to pay, and if Grantee does so correct and so pay within such time, forfeiture shall not become effective nor be enforced. Section 15. Termination. '+· In addition to all other rights and powers retained by the City under this Agreement or otherwise, the City reserves the right to terminate this Agreement, and all rights and privileges of Grantee hereunder shall cease in the event of substantial breach, subject to reasonable notice and opportunity to cur91 of its terms and conditions. A substantial breach by Grantee shall include, but shall not be limited to, the following: (1) Grantee's violation of any material provision of the Agreement or any material rule, order, regulation or determination of the City made pursuant to this Agreement; (2) Grantee's failure to properly compensate the City as required in this Agreement; (3) ·.Grantee's attempt to evade any material provision of the Agreement or to practice any fraud or deceit upon the City or upon Grantee's customers or interexchange carriers; ·(4) Q~amee's failure te •empl8te its senswstiea aee ~reviSe Htil~y service; (5) Grantee's attempt to sell, transfer, convey or assign any of the rights and privileges granted pursuant to this Agreement without City Council approval; · (6) Grantee's failure to respond to or comply with City requested reports, audits, statements and other information in a timely manner; or (7) Grantee's material misrepresentation of fact in its application or negotiations during the agreement process; or the conviction of any director, officer, employee or agent of Grantee for the offense of bribery or fraud connected with or resulting from the award of the Agreement to Grantee. H. ~s 4 ~l'eem'n' an1 the eas'msats srealeel fteFeHBEier ffiftY he tennhtated in tire event Grantee Maaelens t:Re 1:1se ef the pvbli~ rights of way for the p1'tpases set forth herein. Reservation Agreement -Page 12 of 16 DOC#: 351341 Grantee shall have the rig):! > license or otherwise pennit private r --.ity providers use of the rigj:lts and privileges granteo to Grantee pursuant to this Agreement, ~·ovided that such action will not release or relieve Grantee of its obligations to the City pursuant to this Agreement. Except as provided in the preceding sentence, ., ~ i Section 16. Miscellaneous. A. Assi nment; successors. ~either this Agreement, the assets held by Grantee for use under this Agreement, any rights-or privfleges of Grantee under this Agreement, Grantee's capacity in the System, or allowance of access to the System, either separately or collectively, shall be sold, resold, assigned, transferred or otherwise conveyed by Grantee to any other person or firm, except an Affiliate, without the prior written consent of the City by ordinance or resolution unless otherwise permitted in this Agreement or by the City Council. No such sale, assignment, transfer or conveyance by Grantee shall be approved by the City Council for one year after the passage of this Agreement, unless such sale, assignment, transfer or conveyance is to another City franchisee or licensee and the City Council determines such sale, assignment, transfer or conveyance is in the best interest of the City. Grantee may assign this Agreement ~ to an Affiliate during the term of this Agreement with notice and consent of City, which consent shall not be unreasonably withheld. In the event that the purchaser or seller is the holder of a like agreement, the agreement purchased shall be canceled and merged into one or the other agreement held by the purchaser upon such reasonable terms and conditions as may be set out by the City Council when permission for merger is granted. Should the Grantee sell, assign, transfer, convey or otherwise dispose of any of its rights or its interests under this Agreement, or attempt to do so, in violation of this requirement to obtain prior consent, the City may, after notice and reasonable opportunity to cure, deem such transfer as a material or substantial breach and, in accordance with Section 15, revoke this Agreement for default, in which event all rights and interest of the Grantee shall cease and no purported sale, assignment, transfer or conveyance shall be effective. 'Fire Systom faeilities 1E1eated itbin public priipertJt shaH never be leased or sablease\1 l9 a previQer gr t=eseller of &imilar se~dcei ullless welt pro"ider or seller has a similar fl:aneBise eF is etheFWise aHtherizeQ te GQ:aduGt businGs& iB ,Azddisea ~aQer smte 9fi' federal Ia\¥. B. Force Majeure. In the event either the City or Grantee shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of fire, casualty, strikes, lockouts, labor trouble, inability to procure materials or supplies, failure of power, governrnental authority, riots, insurrections, war or other reason of like nature, where such delay, hinderance or prevention of performance shall not be within the reasonable control of the party obligated to perform perform and not be avoidable by diligence, the party so delayed shall promptly give notice to the other party, and thereupon performance of such act shall be excused for such period of delay. C. Notices. Any notice provided for herein shall be given by written instrument, personally delivered or sent by certified mail, return receipt requested, and addressed to: Reservation Agreement -Page 13 of 16 DOC 1: 351341 To the City: Town of Addison, Texas P.O. Box 144 Addison, Texas 75001 Attn: City Manager Grantee To GaileM Pffleetties. !fte.: Dallas, Texas 15851 Dallas Parkway Suite 855 Dallas, Texas 75248 Attn: ~gam;Nail s~ nt D. Governing Law; Venue. This Agreement shall be construed under, and in accordance with, the laws of the State of Texas, and all obligations of the parties created by this agreement are performable in Dallas County, Texas. Venue for any action under this Agreement shall be in Dallas County, Texas. E. Legal Construction. In case any one or more of the provisions contained in this Street License Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been included in this Agreement. F. Entire Agreement. This Assignment Agreement represents the entire and integrated agreement between the City and Grantee relative to encroachments into the public rights-of-way as described herein supersedes all prior negotiations, representations and/or agreements, either written or oral. G. Amendment. This License may not be altered, waived, amended or extended except by an instrument in writing signed by the City and Grantee. H. Authority to execute. The undersigned officers and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Street License Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. Reservation Agreement -Page 14 of 16 DOC#: 351341 EXECUTED at Dallas County, Texas on the day and year first written above. TOWN OF ADDISON, TEXAS By:_-=---=~-=---=--=-=---Ron Whitehead, City Manager ATTEST: By:_-:----:-::--------Cannen Moran, City Secretary Reservation Agreement -Page 15 of 16 DOC'' 351341 ACU:SS, OC. ADDISON CIRCLE GUE, L'fD. By: ____________ _ ClzYisQIUO' PRQPBRTIBS, I~IC. ACKNOWLEDGMENTS ATE OF TEXAS § § COU TY OF DALLAS § · instrument was acknowledged before me on ________ , 996 by Ron Whitehead, ity Manager of the Town of Addison, Texas, a Texas municipal orporation, on behalf of the · d municipal corporation. NOTARYP C, State of Texas STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledge before e on -----------' 1995 by of Gaylord Properties, Inc., a Texas corporation, on half o the said corporation. STATE OF TEXAS . § § COUNTY OF D S § Trust a Texas real estate investment trust, on behalf of the said real estate investme trust. Reservation Agreement -Page 16 of 16 DOC #:..3St341 NOTARY PUBUC, State of Texas • STATE OF TEXAS COUNTY OF DALLAS § § § RESERVATION AGREEMENT This Reservation Agreement (the "Agreement") is entered into this_ day of January, 1996 by and between the Town of Addison, Texas (the "City") and Addison Circle One, Ltd., a Texas limited partnership (the "Partnership") and Gaylord Properties, Inc., a Texas corporation (''Gaylord''). RECITALS WHEREAS, the Partnership is the owner of certain real property located in the City, which real property is described in Exhibit A anached hereto and incorporated herein ("Phase I"); and WHEREAS, Gaylord is the owner of certain real property located in the City, which real propertY is described on Exhibit 8 (the "Gaylord Property", Phase I and the Gaylord Property being collectively referred 10 as the "Property"); WHEREAS, Columbus Realty Trust, a Texas real estate investment tru$1 ("Columbus") and Gaylord are the partners in the Partnership and have previously worked with the City in regard to zoning for the Property; and WHEREAS, the Property is zoned UC Urban Center District pursuant 10 Ordinance No. 095-032 of the City, which zoning allows the Property to be developed with a mix of uses including multi-family residential, retail, office and civic uses within an urban framework which is compatible with adjacent developments as an appropriate and desired land use; and WHEREAS, in accordance with the UC Urban Center District regulations set forth in the City's Comprehensive Zoning Ordinance, a Concept Plan depicting the development of the PropertY was submitted by Gaylord and Columbus and approved by the City Council simultaneous with the approval of Ordinance No. 095-032, which Concept Plan is attached 10 and made a part of. Ordinance No. 095.032; and WHEREAS, the Concept Plan provides that the Property is to be developed in three separate phases, and the Partnership desires to begin the first phase of the development (the ''Phase I Development"); and WHEREAS, prior to the issuance of a building permit for development of any portion of the Property, the UC Urban Center District regulations set forth in the Comprehensive Zoning Ordinance require the approval by the City Council of a Final Development Plan for that ponion of the Property; and ")d NOSdWOHl aN~ 53lM0) 0v:cl 9661-Bc-A~w WHEREAS, Gaylord and Colwnbus heretofore submitted to the City a Final Development Plan for Phase I, which, as conditioned, was approved by the City Council on , 199 pursuant to Ordinance No. 9 -. (the Final Development Plan for Phase I as the same may be modified or amended being referred to herein as the "Final Development Plan"); and WHEREAS, in addition to the approval of the Final Development Plan, the Partnership has, simultaneous with the execution of this Agreement, received approval of the Final Plat for Phase I (the "Final Plat") which is incorporated herein and made a parr hereof by this reference, which Final Plat reflects that the streets and alleys shown thereon are dedicated to the public subject to the rights reserved herein and the terms and conditions of this Reservation Agreement; and WHEREAS, in order to achieve an urban framework for Phase I, the Final Development Plan, together with the Final Plat, provides for narrow streets and sidewalks and the placement of buildings immediately adjacent thereto, certain above-ground projections, including awnings, balconies, cornices, shutters, roofs, pone cocheres, lights, ornamental projections and storm drainage lines and other similar building attaclunents and fixtures, may extend and enc:roach into the adjacent rights-of-way; and · WHEREAS, by this Agreement the parties desire to define the extent of the encroaclunents rights reserved herein. NOW, THEREFORE, for and in consideration of the mutual covenants and obligations set forth herein, the benefits flowing to each of the parties hereto, and other good and valuable consideration, Partnership, the City and Gaylord do hereby contract and agree as follows: I. lncmporatino of Premises-The above and foregoing premises are true and correct and are incorporated herein and made a parr hereof for all pwposes. 2. Reservation of Fuswent for Enrmachments-The dedication of the public streets and rights-of-way as shown on the Final Plat is subject to the following private easements reserved to the Partnership, as the owner of Phase I, and intended for the private use and enjoyment of the owner of Phase I; provided, however, that the reservation is and shall be subject to the conditions contained in this Reservation Agreement. Partnership hereby reserves an easement over and under the public streets, for the placement . of awnings, balconies. cornices, shutters, roofs, porte cocheres, lights, ornamental projections and storm drainage lines (such items being hereinafter referred to together as an "Enc:roachment") in accordance with and subject to the following: A. Except as otherwise approved hy the City staff, no Encroachn)ent shall be located, placed, erected or constructed below a height of 1 0 feet above a public right-of-way; and 2 ')d NOSdWOHl aN~ 53lM0) 0v:ct 966t-Bc-A~w B. Except as otherwise approved by the City staff, no Encroachment located, placed, erected or consllllcted between a height of 10 feet and 20 feet above the public right-of-way shall extend more than 12 inches into the public right-of-way; and C. Encroachments located, placed, erected or conSilllcted more than 20 feet above the public right-of-way may extend more than 12 inches into the public right-of-way. Any exception to the terms and conditions of the easement reserved for Encroachments herein may be approved by the City Manager or the City sraff. 3. Par!cing Rights. Pannership hereby reserves the right for public parking within the public streets shown on the Final Plat without charges imposed by the City and the City agrees that it will not install parking meters or otherwise impose charges for parking on such rights-of-way; provided, however that the rights reserved by this Section are subject tO the authority of the City to regulate the manner in which parking on the public streets is conducted, subject to the qualifications stated in the paragraph. 4. Non-exc!usjye Ewmept. The easement reserved herein is not exclusive, and is subject and subordinate to: (a) the right of the City to use the easement area for any purpose; provided, however, that the City may not interfere or disturb any Encroachment constructed or placed in accordance with this Agreement; (b) any existing street utility, drainage or communication facility located in, on, under or upon Phase I; (c) all vested rights presently owned by any utility or communication company; and (d) any existing license, lease, easement, or other interest heretofore granted by the City. 5. I=m. The term of this Agreement and the easements reserved herein shall be perpetual, subject to termination as set forth in Section I 0 hereof. 6. Desian ;om;tns;tion maintenance and replacement (a) All design, construction, reconSilllction, replacement, removal, operation and maintenance by Partnership of any Encroachment shall be done in such a manner so as not to interfere with or create a hazard to the operation, maintenance, and use of a public right-of-way. Partnership shall obtain building permits from the City for Encroaclunents prior to their construction or placement (b) All Encroachments shall be reasonably maintained by Partnership at all times in a safe, neat and good physical condition. Prior to instituting any such maintenance, Partnership shall secure from the City any necessary permits, including building permits. Upon written notice from the City, by and through the City's Building Official or his designee, stating in general terms how and in what manner the maintenance is required, Partnership shall reasonably perform such required maintenance. If Partnership fails to do so, the City shall have the right (in addition to any other rights of the Ciry provided for herein) to perfonn such maintenance, the cost of which shall be borne by Partnership. 3 "Jd NOSdWOHl GN~ S3lMOJ tv:ct 966t-Bc-A~w 7. Insurance. (a) Partnership shall purchase and maintain during the tenn of this Agreement commercial general liability insurance including personal injury liability, premises operations liability, and contractual liability, covering, but not limited to, the liability assumed under the indemnification provisions of this Agreement, with limits of liability for bodily injury, death and property damage of not less than $3,000,000, with reasonable deductiblcs in amounts approved by City. (b) Such insurance shall be issued by a earner which is rated" A-1" or better by A.M. Best's Key Rating Guide and licensed to do business in the State of Texas. Certified copies of all of such policies shall be delivered to the City upon the execution of this Agreement; provided, however, that the City, in its sole discretion and in lieu of certified copies of such policies,' may pennit the delivery of certificates of insurance together with the declaration page of such policies. (c) The City shall be entitled, upon request and without expense, to review copies of the policies and endoJSements thereto. The City may malce any reasonable requests for deletion, revision or modification of particular policy terms, conditions, limitations or exclusions, except where policy provisions are established by law or regulation binding upon either City or Partnership or upon the underwriter for any of such policies. Upon request for deletion, revision or modification by the City, Partnership shall exercise reasonable efforts to accomplish the changes in policy coverage, and shall pay the cost thereof. (d) Partnership agrees that with respect to the above-required insurance, all insurance contracts will contain the following required provisions: (I) Name the Ciry and itS officers, employees, board members and elected representatives as additional insured (as the interests of each insured may appear) as to all applicable coverage; (2) Provide for forty-five (4S) days notice to the City for cancellation, non•renewal, or material change; (3) Provide for notice to the Director of Finance by certified mail; and (4) Provide that all provisions of this Agreement, as amended, concerning liability, duty, and standard of care, including the Indemnity of this Agreement. shall be underwritten by contraCtual coverage sufficient to include such obligations within applicable policies. (e) The insurance policies obtained by Partnership in compliance with this Section shall be subject to approval by the City, and such proof of insurance, along with written evidence of payment of required premiums, shall be filed and maintained with the Director of Finance during the tenn of this Agreement, or any extension or renewal thereof, and may be changed 4 • )d NOSdWOHl QNt! S3lMO) . lv;cl 9661-Bc-At!W from time to time to reflect changing liability limits, as required by the City; provided that increases in coverage required by the City shall not exceed. on a percentage basis, the percentage increase in the Consumer Price Index in effect on the date an increase in the amount of insurance coverage is requested over the Consumer Price Index in effect on the date of this Agreement. Partnership shall inunediately advise the City Attorney of any actual or potential litigation that may develop that would affect this insurance. (f) Insurers shall have no right of recovery against the City, it being the intention that the insurance policies shall protect Partnership and the City and shall be primary coverage for all losses covered by the policies. (g) The policy clause "Other Insurance" shall not apply to the City where the City is an insured on the policy. (h) Companies issuing the insurance policies shall have no recourse against the City for payment of any premiums or assessments which all are set at the sole sole risk of the Partnership. 8. Indemnjzy by Partnership. Partnership shall indemnify the City, its officials, officers, employees and agents against, and bold the City, its officials, officers, employees and agents harmless from, any and all liability, actions, causes of action, lawsuits, judgments, claims, damages, costs or fees, including reasonable attorney's fees, for any injury to or the death of any person or damage to or destruction of any property resulting from or based upon, in whole or in part. any act or omission of Partnership, its officers, employees and agents under this Agreement. The provisions of this paragraph shall survive the termination of this Agreement. 9. Indemnity by City. City shall indemnify Partnership and Partnership's successors and assigns for damage to any Encroachments constructed in accordance with the terms of this Agreement caused by any act or omission by the City or its officials, employees or agents. I 0. Termination. lltis Agreement and the easements created hereunder may be terminated in the event Partnership abandons the use of the public rights-of-way for the purposes set forth herein. II. EJm,re A ereemcnt$ with Rc$pCG! to PrP!lC'\Y-The City acknowledges and agrees that it is contemplated that the Gaylord Property will be developed in a manner consistent with the urban framework used in Phase I and the City agrees, subject to approval of Final Development Plans for subsequent Phases, to permit encroachments into public rights of way pursuant to agreements between the City and the owners of subsequent Phases in form and content similar to this Agreement. 5 6c/90"d 0c0c c~9 vtc "Jd NOSdWOHl QN~ 531MOJ cv:ct 966t-sc-A~W 12. Mjscellancous. (a) Successorn. The rights and obligations of Pannership pursuant to this Agreement, except for Section II, shall be a covenant running with Phase I and shall inure to the benefit of each subsequent owner of Phase I, provided that a sale or transfer of Phase I by Partnership or any subsequent owner of Phase I (the "Phase I Owner") shall not relieve the Phase I Owner of liability pursuant to this Agreement until such obligations have been assumed by a transferee approved in writing by the City. (b) Force Majeure. In the event the City or Pannership shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of fire, casualty, strikes, lockouts, labor trouble, inability to procure materials or supplies, failure of power, governmental authority, riots, insurrections, war or other reason of like nature, where such delay, hinderance or prevention of performance shall not be within the reasonable control of the party obligated to perform and not be avoidable by diligence, the party so delayed shall promptly give notice to the other pany, and thereupon performance of such act shall be excused for such period of delay. (c) Notjses. Any notice provided for herein shall be given by written instrument, pec;ottally delivered or sent by cenitied mail, return receipt requested and addressed to : To the Ci!Y: Town of Addison, Texas P.O. Box 144 Addison, Texas 7500 I Attn: City Manager In pannership: Addison Circle One, Ltd. c/o Columbus Realty Tnist 15851 Dallas Parkway, Suite 855 Dallas, Texas 75248 Any party may change the address for notice specified above by giving the other party ten (10) days' advance wrinen notice of such change of address. (d) Govemjng Law· venue This Agreement shall be construed under, and in accordance with, the laws of the State of Texas, and all obligations of the parties created by this agreement are performable in Dallas County, Texas. Venue for any action under this Agreement shall be in Dallas County, Texas. (e) Ls;gal Conatruction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of the Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been included in this Agreement. (f) Entjre N!reement. This Agreement represents the entire and integrated agreement between the City and Partnership relative to Encroachments into the public rights-of-way as 6 ")d NOSdWOHl QN~ 531M0) £v:c1 9661-Bc-A~W described herein supersedes all prior negotiations, representations and/or agreemems, either written or oral. (g) Amendment. This Agreement may not be altered, waived, amended or extended except by an insttument in writing signed by the City and Partnership. (h) Authority to exesme. The undersigned officers and/or agents of the panics hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the panics hereto, and each party hereby certifies to the other that any necessary resolutions or other act extending such authority have been duly passed and are now in full force and effect. EXECUTED at Dallas County, Texas on the day and year first written above. PARTNERSHIP: ADDISON CIRCLE ONE, L TO., a Texas limited partnership By: Columbus Realty Trust, General Partner By=----"---------Name: ___________ _ Title: ___________ _ GAYLORD: GAYLORD PROPERTIES, INC., a Texas corporation By: ____________ _ Name:_...,.... __________ _ Title: ___________ _ 7 ')d NOSdWOH! ON~ 53lMOJ £~:c1 9551-Bc-A~W CITY: TOWN OF ADDISON, TEXAS By: ____________ _ Ron Whitehead, City Manager ArrEST: By:: ____________ _ Carmen Moran, City Seerewy STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was ACKNOWLEDGED before me on _____ ___. 19 , by ~=-~--~~~--~~~--~~~,·--~-------~------of Columbus Realty Trust, General Partner of Addison Circle One, Ltd, a Texas limited partnership, on behalf of said limited partnership. [SEAL] Notary Public -State of TcKaS My Conunission Expires: Printed Name of Notary Public 8 ")d NOSdWOHl ON~ 53lM0) £v:~1 9661-8~-A~W STATE OF __ _ COUNTY OF ___ _ § § § This instrument was ACKNOWLEDGED before me on -------'' 19_, by ~----------~----~~------~----~~·~~~~----~-------------of Gaylord Propenies, Inc. a Texas corporation, on behalf of said corporation. [SEAL] Notary Public -State ofT exas My Commission Expires: Printed Name of Notary Public STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was ACKNOWLEDGED before me on , 19_, by Ron Whitehead, City Manager of the Town of Addison, Texas, on behalf of said Town. [SEAL) Notary Public -State of Texas My Commission Expires: Printed Name of Notary Public 9 'Jd NOSdWOHl QN~ 53lM0) vv:c1 9661-Bc-A~W STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was ACKNOWLEDGED before me on • 19_. by Canncn Moran, City Secretary of the Town of Addison, Texas, on behalf of said Town. [SEAL] My Commission Expires: DA9ll620t80 022996 •14 116:3Dl2-6S Notary Public -State of Texas Printed Name of Nolaly Public 10 ")d NOSdWOHl ON~ 531M0) vv:ct 966t-Bc-A~w I EXInBITB Remaining Gaylord Property ")d NOSdWOHl GN~ 531M0) vv:ct 966t-Bc-A~W EXHIBIT A Phase I ")d NOSdWOHl GN~ 53lM0) vv:c! 966!-Bc-A~W SENT BY:xerox Telecopier 7021 :10-17-95 : 5:52AM : 2149484118-+ CITY OF DALLAS . PR().,ERTY MAN~GEMENT • FASCIMILE COY'J$PAGE Date: FROM: -~Av-·eFu #: (114)948-4083 or (114)948-4118 Direct dial 4#: (114)!148-4-11& COMMENn: ~~ This transmluioa c:oasilb or ---pages plus the c:over pap. 9316643:# 1 H there are any problema with any transmission, eall the sender directly at the number · above or at (114)948-4100. ~IU"'m=rr CRYOFDAU..Nii -E. JEll W£9l.VO.fW..IGI 0A1.1.A1. 1BM1&2G:J 1'UiPHOHII1f,....100 FAXr1............._0fll21111o&t-4111 .. . :~_;;: . •.--- SENT ev:xerox Telecopier 7021 :10-17-95 6!53AM : f 43-108 SBC. 43-108. DIRSCTION.Q, SIGNS 'WlTHIN BtnLDINO COMPLEXES. (a) In a buDding complou: compoaed ohnulllple SlruCIIUM wldch ccml&lns illtemalvehlcular aceIf each ollicial bulldlnq 11umber 18 1101 discernible ftom the public 111tee1, the awuar or the buildlAg" complou: .Juoll P""' dlnoctklllallllans at eaCh ellltallc;v to the cOmplex and Ill eaCh llltetaeetloll or 11ehicl.llar acceaeo, olh8f than publla atreel8, WilhiD the complex. (b) For the ~ or this HCtioD, an 'eiiiZUce' 1o a compJa: II a polllt at wt1fgh whlculu' accea to the complu, other than a public 811eet, IDteneats wi111 a public 111n1et. (c) Tile cllzactb&W siQu 111118! 'fndlate the dtiecllonto bulldlllga IUid 111\b by number, must be leo1ble · fiOIII the 'Whlmdar ace-, 8lld IIIWII be painted with a colat whiCh il Ill COIIIr.lat to the bac'kvmalld. Dlrllcllallal .. requiNd by thJa -=lk>ll ano 1101 mqainld let comply wllh Chapter 41 of lhlll Code. (Code 1941, .Art. 88-S; Old. 18072) The OWDer OWDer of a bulldlnq complex whiCh conlallul a maD area .uJI 1IUbmll 10 the pollee 8lld lire depattments a cllagmm or the complex, Indicating the . location or eac:A bualneaa. When a challga In a busln-locadon Is mado, the OWMr ahal1 advise the polk:e &lid lire departments Ill wrilinq or the clwlge. (Code 1941, .Art. 88-8; Ord. 18072) SBCS. 43-107 THRt1 43-111. . llESEKVED. (Repealed by ()rd. No. 19072) ARTICLE VI. LICENSE FOR THE USE 01' PUBLIC lUCHT-OF-WAY. Divilian I. Licenses for Other than Bicycle Parking Davie•. (l)lvlslon tille created by OM. 18838) SBC. 43-112. .IIPPLICATION; FEE. U a peraon, or governmental entily operatlnq a utilily, cleslres to make use or any ponlon or the pubUc r1qht-ol-way for a private or qovernrnentill 2149464116-t 9316643:# 2 utDiry wre, the pmwoa, or O"D111Sn1111e111al enti:y operating a utDlry, JIWIII apply In wrltillq to the director. The application mWII he ac:comP&IIIecl by pl.uuo or W.wlllga llllowlllq tha ...,.. to be \IS9d. a statement olthe pllq>OIIe for wlllch the r1qht-o!-way ill to be UMc1, and a IIOIUelwldabla application fee of $3SO; arcap! that the applicatiOn fee .Juoll not be required for. or (2) a llc-lo place &lid~ the facUlties or a utDiry oparatecl by a ~tal 8lltily 011 public: d;hl-ol:..,..y, wbenl the ~ antlty hu pnrviauly COIIIrllcle4 With the clly to provide mutual 'JIIIDIIng or riGhts-of-way for 111111ty pwposes. (Old. Noa. 18119: 111862) 8EC. 43-113. If, Ill the . juclgzmml ol the clly CXIUIII;il, lila requeetecl UIMI Ia 1101 lllcouilll8111 with IUid dOBII not 1IJU'IIUOII8bly Impair the public UIMI or lhe 11Gl!t-o!way, the COIII\c:llmay by l:m!lnance gzanttha llcahSII. (Old. 18119) TEIU\4S Am) CQm)lTIONS; DUM.TION; IUGHT OF 'l'ERMINATION llESBRI/£0 BTc:rrr. (a) The Clfcllnance .Juoll con~&~~~ the 1811118 8lld colldlllou or the lie"""" IUid llhall state the time !t~r whk:h the Uceue ax!sts. Whether or ao1 -'•tad Ill lhe ordlnanca the clly COUIICII relalllll the rillhl to terminate a Ucei\Se whlllllmlt Ill 1111 11140'mellt the purpose or """ o! lhe llcenaa Is lllcoulslenl with the pubUc UIMI or the righl.of-way or whenever tile purpose or use or the llceue Ia llkllly to become a nU!a&nce. (b) U a private Uc1!11118 does not atata tha time tor expiration, It will exp1n1 10 yaara D:om the date ol the passage of the ordlniiJica gnmtlng tha license. (c) • U a Ucense to place and mailltain tile l'acDitlea ol a ullllly oparated by a Qovernm•mlal entity on public rlqht-o!-way does not state tile lime for expiration, II will expire 1111011 expiration of the govenunentalantlry'a conlnlct wilh lhe clly Prcmdinll for mutual ~~R~~IiiiQ" of r1qhta.of-way. (Ord. Nos. 18119; !8962) Da11aa City Code 19 SBCTIOII.F F-A.l . .' SENT ay:xerox Telecopier 7021 :10-17-95 6:54AM ; § 43-119 SEC. 43-1111. .IINNUJIL FEE FOR USE OF PUBLIC JUGHT.OF-W.IIr. (a) The IUUiwd fee for alk:......., to ue a public liclht-of-way for the followizl11 -Is: (I) Fee for lallrOad. c....U.~r. not less than $50 per track crosalng the public ri;'ht-o!-way or an ai!IOWII c!etermlnad by the IQ' device li<:eMe. The appli<:alion must contain the followinO' lnforanatlon: {I) !he """'"' ...wr ...... 1111d telephone numbera ot (B) i! tha applicant Ia a leosea, !he property owner, and (C) !he ln&llufaclurer of each bicycle P&IIcin!l device to be illlltalled or .operated; (2) lhe nWuber of bicycle parklnQ' devic .. to be lnllalled or operated; (3) the prupoaed locallon of a.ch bicycle parklnQ' device; (4) the cllaMulcma of eaah blcyala parking deYice, iliauured Wllh ud orllhout blcyclea parked In the device; (5) the prupoaed INIIhod of IIIIC!IrinO' each btcyc1e paiitlnQ' device 10 the p1lblic light-of-way; and (5) U lhe applicant Is a 1-Wrilt811 COIUI8ill from lhe pruparty CWilar 10 Install or operate U1Y bicycle parldnq deYice on public r!Qhl-of,way lllullillg Ids property. (c) Tile dlrector llhall rorward a copy of any completed .application 10 lhe ~~~~ af stntel llllli Allllalkm 88Mcaa, public wurlcl, ud property I!WiaQ'ernelll llllli Ia any IIIIUiy Compallf IIW mlqht be a1!ected by lhe prupoaed IMta.llalion and aper.allon of a bloycle perldllg daYica. The daparlmenbl, and uy ullllly compuy ac:olililld, oball l8¥lew the application aD4 ratum il, with any commanllr, Ia lhe dlteclor wllhln 30 dayaa of recalpt. (d) Aller nrvlawlng the applicatilm and departmental co111111811ts, lhe director may Z.Ue a bicycla parking davlce license lllllestr d8l1ial is fequlred by Section 43-IZZ. (OR1. 18838) SEC. 43-IZZ. DENW. OR RIMX:ATlON OF LICENSE. (a) The clirector shall deny a bicycle parking device Ucensa If; (I) the appli<:ao.t·lails to comply wi1h the fequlrements of lhla division or o!her applk:able taw: (2} lhe appllcant makes a !alse statement · of material fac:t on an application for a bicycle parking device liceMB; or Dallal City Code 21 SECTION,!' F-A.3 SENT BY:Xerox Telecopier 7021 :10-17-95 8:56AM ; 2149484118 .. 9316643:11 5 NEW·UCENSE REVISED 08-27-92 ORDINANCE NO. ___ _ An ordillanee granting a Private/Revocable License to -----------to occupy, maintain, and utilize certain public property located near the intersection of --------and and located in/adjacent to Block(s) _____ within the limits hereinafter more fully described, for the purpose of • providing for the terms and conditions of this license; providing for the annual compensation to be paid to the City of Dallas; providing for payment of the publication fee; and providing an effective date of this license and ordinance. INSERT HISI'ORICAL STRUCTURE VERBAGE IF APPROPRIATE. BElT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS: SECTION 1. That a Private/Revocable License, hereinafter referred to as "license", subject to the restrictions and conditions of this ordinance, is hereby granted to __ _ ________ __,_ _______ _. its successors and assigns, hereinafter referred to as "GRANTEE", to occupy, maintain, and utilize for the purpose set out hereinbelow the tract(s) of land described in Exhibit A, hereinafter referred to as "licensed area• which is attached hereto and made a part hereof. SECTION 2. That this license is gnnted for a term of ___ (__) years, unless sooner terminated according to other terms and provisions herein contained. ·SECTION 3. That GRANTEE shall pay to the City of Dallas the sum of __ -------DOLLARS ($ annually for the license herein granted, said sum to become due and payable on the 2nd day of January each year, in advance, during the term hereof; provided, however, that the first payment due hereunder in the sum of_ --------DOLLARS ($ ) shall become due and payable upon the final passa&e of this ordinance and shall cover the consideration for 19. _ .• Such consideration shall be in addition to and exclusive of any other taxes or special assessments required by law to be paid by GRANTEE. Should GRANTEE fail to pay the above stated 0020F 1 SENT BY:Xerox Telecopier 7021 :10-17-95 6:55AM : 2149464116-+ 9316643:# 6 annual fee within sixty (60) days of the due date, the Property Management Director may terminate this license. All sums payable to the City of Dallas hereunder shall be paid to the City Controller of the City of Dallas and deposited in Fund 004, Agency POT, Org. 1301, Revenue Source 8200. SECTION 4. That the licensed IRII shall be used by GRANTEE for the following purpose under the direction of the Director of Public Works of the City of Dallu: __ SECI'ION 5. That this license is subject to the provisions set forth in EXHIBIT B, attached hereto and made a part hereof. SECTION 6. That this license is nonexclusive and is made expressly subject and subordinate to the right of the City to usc the lia:nsed area for any public purpose. (The Goveming Body of the City of Dadlas reserves the right to terminate 1111d cancel thts Ucen1e, at will, by Resolution puled by said Goveming BodyJThe Goveming Body of the City of Dallas reserves the right by resolution duly passed by said Govenablg body, to terminate 1111d cancel this Umue upon giving GRANTEE SIXTY (60) days notice of its Intent to canceL) Upon termination, all rights granted hereunder shall thereupon be considered fully terminated and cancelled and the City of Dallas shall not be held liable by reason thereof. Said resolution shall be final and shall not be subject to review by the Courts. GRANTEE shall have the right of cancellation upon giving the City of Dallas sixty (60) days written notice of its intention to cancel, and in either event upon the termination or cancellation by the City or GRANTEE, as the case may be, this liceuse shall become null and void and GRANTEE or anyone claiming any rights under this iostrument shall remove any improvements and encroachments from the licensed area at GRANTEE's expense. Failure to do so shall subject GRANTEE to the provisions contained in EXHIBIT B, Subsection (a). All work shall be done at the sole cost of GRANTEE and to the satisfaction of the the Director of Public Works. SEcriON 7. That the license is subject to the following conditions, tenus and reservations: a) 0020F 2 SENT BY:Xerox Telecopier 7021 :10-17-95 6:57AM ; 2149464116 .. 9316643:# 7 b) c) SECTION 8. That the license granted hereby shall not become effective until and unless GRANTEE files a final acceptance, in wrltiug, to the terms and conditions of this ordinance with the Property Management Director and said written acceptance shall be . forwarded to the City Sccrctary of the City of Dallas. In the event said written final acceptance is not filed within six (6) months after the passage of this ordinance as provided for herein, then the Property Management Director may terminate this license. SECTION 9. That upon receipt of GRANTEE's final written acceptance, the Property Management Director is hereby authorized to execute a NOTICE OF UCENSE and to file same in the deed records of Dallas County. SECTION 10. That the terms and conditions contained in this ordinance shall be binding upon GRANTEE, its successors and assigns. SECTION 11. That this license may not be assigned without prior written approval from the Property l\{anagement Director, or his designee. Such assignment shall recite that it is subject to the terms, realrimions, and conditions contained in this ordinance. The assignee shall deliver (evidence of owaersblp of property abuttbaalic:ensed area,) a copy of the assignment, along with the assignee's written acceptance of the provisions of this ordinance, to the Property Management Director within 10 days of such assignment; said assignment and written acceptance shall be forwarded to the City Secretary of the City of Dallas. Should GRANTEE fail to obtain prior written approval for assignment of this license or fail to provide the City of Dallas with the required written acceptance and a copy of the assignment, the Property Management Director may terminate this license. IF GRANTEE SELF-INSURES, INSERT THE SELF-INSVRANC~ PROVISION HERE AND RENUMBER THE REMAINING SECTIONS. SECTION _. That the City Secretary is hereby authorized and directed to certify a copy of this ordinance for recordation in the Deed Records of Dallas County, Texas, which 0020F 3 SENT sy:xerox Telecopier 7021 :10-17-95 8:58AM ; 2149484118"' 9316643:# 8 certified copy shall be delivered to the Property Management Director, or his designee. Upon receipt of the fee for the year 19 , an acceptable certificate of insurance, and the fee for publishing this ordinance which GRANTEE shall likewise pay, the Property Management Director, or his designee, shall deliver to GRANTEE the certified copy of this ordinance. Tbe Property Management Director, or his designee, shall be the sole 50Urce for receiving certified copies of this ordinance for one year after its passage. SECI'ION _. This ordinance sball take effect imm,ately from and after its passage and publication in accordance With the provisions of e Charter of the City of Dallas and it is accordiDgly so ordained. APPROVED AS TO FORM: SAM LINDSAY, City Attomey Property Management Director BY~~~~~~~~-----AS518fiDt CRY Attorney I: G. PEPPER PASSED __________ _. 0020F 4 SENT BY:Xerox Telecopier 7021 :10-17-95 8:59AM ; 2149484118 .. 9316643:# 9 WHEREAS, ------------J·s. the owner of that certain structure located at/near the intersection of.__ _____ and _______ _, said structure being more commonly known as the • and WHEREAS, said structure lies within the Historic District, and it is the deshe of the City Council of the City of Dallas to promote the restoration and rehabilitation of buildings therein; and WHEREAS, it is the opinion of the City Council of the City of Dallas that said structure is a "historically significant structure" for the limited purpose mentioned in Chapter 43, Azticle VI, Section 43-115 (a) (2) of the City Code of the City of Dallas; and WHEREAS, said ________ ___, has requested that he/she/it/they be granted a for the purpose of allowing· the continued use and maintenance of an which are integral part of said historic structure; Now, Therefore, 0020F 5 • SENT BY:Xerox Telecopier 7021 :10-17-95 : 9:00AM : 2149464116 .. 9316643:#10 SECTION _. That in lieu of the lnsumnce requirements specified in EXHIBIT B, Subsection (c), GRANTEE may self-insure to the extent permitted by applicable law undllt' any plan of self-insurance, maintained in accordance with sound accounting practices, against the risks described in this Subsection (c) and shall not be required to maintain insurance hereunder provided that GRANTEE furnishes the Oty satisfactory evidence of the existence of an insurance reserve adequate for the risks covered by such plan of self-insurance, evidence of which sball be provided to the Oty prior to issuance of a certified copy of the ordinance to GRANTEE. 0020F 6 SENT BY:Xerox Telecopier 7021 :10-17-95 9:o1AM 2149464116-t EXHIBIT B ADOI'IlONAL UCENSE PROVISIONS That this lioense is granted oubjeelto tho following cOnditions, terms and reservations: 'lE 1 OF 2 9316643:#11 (a) That at such time as this license is •••minatod or' canceled lor any reason whatsoever, GRANTlOE, upon 01ders issued by the City acting through the Oiruc:~or ol Public Wor1tec:ling the City ol Dallas agalnlll anrend all claims tor damages to persons or propeny as a rasuh of or arising out ollhe use, operallon, and maintenance by GRANTEE of the licensed araa and GRANreE'alnatallallons,lmprovomants, landscaping, and "''uipmant In OOM8Ciion tharewhh and located therein. The commercial gonoralllabDity coverage must provide oombinad single lim~s ol fiabilily lor bodPy Injury and propany damege ol not less than $500,000 for each oc:cunance, $1,000,000 annual aggregate. The coverage must be on an "oc:cun'ance• basis and must Include COYIIrega for premises ope.Wns. independent eonllaclors, produ..Woampletod opelllllons. personal iniUJY, oonlnl<:lualllabll'lly, and modloal payments. This· insurance shall also Include coverage lor underground, explosion, and collapaa hazardo. f. Eaoh polioy musllnoluda a oanoellat!On proVision ~n Vo'hlch the Insurance ""mpany is. roquifod to nolity GRANreE and .the Chy ol · Dallas in writing not fewer than 30 days before canceling, falling to renew, or making a material change to tho Insurance policy. 2. GRANTEE shall carry aald Insurance at fts expense and shallfumlsh lh• City of Dallu proal of such insurance. In !ha ovent said Insurance ohould terminate duringthellcanslng term horaol, or GRANTEE fails to furnish proof of lnsurancG coverage In aooordance with lhe specifications as required by this section, the Property Managemant Dlracfor, or his doslgnoo, may terminate the license granted herein. (d) GRANTEE Is prohlbftad from using the licensed area In any manner which violates Fodoral, State or local laws, regulations, rulos and orders, regardless of when they beooma··or became eHoclive, Including, without fim~ation, lhasa relating lo health, safety, noise •. onvironmental protectiOn. waste disposal and water and air quality, and shall provide oatisladory avldence of compliance upon tha request of the City ol Dallas. Should any discharge. leakage. spniage, emission or pollution of any type occur upon or IIQm the licensed area due to GRANTI:E's use and occupancy thereof, GRANTI:E, 81 fts expanse, shall be obligatod to clean up the licensed area to tho satisfaction olthB City of Dallas and any governmental body haVIng jurisdiction thoraover. The City ol Dallas may, allis option, clean thalioensed area. II the City of Dallas elecls to do so. GRANTEE shall promptly pay to the Cfty !'' Dallas the reasonable cost of such cleanup upon rtetiJ)t of blllttMreJor. GRANTEE agreO$thattno lndetnnfty provisiOns contalnod In paragraph (g) heroin shall be fully applicable to the requirements of this paragraph, in \he evant of GRANTEE's braach ol this paragraph, or as a result of any such discharge. 1aakaga, spillage, emis'Sion or pollution arising out of tha GRANTEE's use of tha licans9d area. SJ::CTION.P P-A.4 SENT BY:Xerox Telecopier 7021 :10-17-95 9:o1AM 2149464116 .. 9316643:#12 P· ';20F2 (e) This license is subject to all State lawa, tho provisions altha Chartor altha C~y ol Dallas as~ now IXlstS. or as may hereafter be adopted or amended, and the ordinancas altho City c1 Dallas now In llfoct or those which may hereafter ba passed or adopled. Tho City of Dallas shalf havo tho right to increase or decraasa tho compensation to ba charged lor tho use contampfaled by this grant In accordanco w~h tho provisions c1 tho Dallas cay Coda as k now exiato, or as may haraallar ba adopted or amended. (f) Tho Governing Body of tho Cky or DallaS raaarvos the right, at any time without notice, to tarminalo and cancalthls llcanso, by resolution, upon a finding by tho Govornlng Body that this license Is lnconslstont wHh tho pUbfiC usa of tho property or whanover tha purpose or use of tho license Is likely Ia bacomo a nuisance, and elf rights granted horaundor aholl thoraupon ba coMidorod fully terminated and cancaled and tho City of Dallas shall not ba held Uablo by reason thereof. The daclsion altha Govornlng BodY of the City · in this mauer ahall ba final and binding upon all panlto lnoolar as tho City's datermlnali'!" asIa whtlhar thO GRANTEE'• usa ol this license constitutes a nulu.nca or is inconslstent wfth the public uaa of lha prop1r1y. (g) As a condition hareol, GRANTEE agrees and is bcund to doland, indamnily and hold the City ol Dallal, fto officers, agontO and amployaos, harmless against any and all claims, laWliUks,Judgments, cosls and expansas lei pen;anal injury (including death), proparty damage or other harm lor which racovery of damages Is sought, sufforad by any parson or parsons, that may arise out c1 or ba occasioned by the uoe, occupancy and malntananco o1 tho licensed aroa or GRANTEE's lnllallllllons and lmprovamanta within tho licensed area, !rom any act or omission ol any repr01111nlaliva, agortt, cuotomar and/or omployea Dl GRANTEE, or by GRANTEE' I breach of any of the terms or pmvisklns al this llcensa, or by any nagfogont or.llriclly liabl$ act or omiHion ol GRANTEE. ita officers, agents, employees or subcontractors in the uso, oooupancy and maintenance of GRANTEE's lnstaUations and lmpt'DYOmonts w'~hln tho licensed area; ex..,pt that the indemnhy provided lor in this paragraph shall not apply 1o any liabnity reaufting !rom tho aole nogf~gonco or faun of tho City of Dallas, ~s officaro, agents, ampioyaes or separate contractors, and In tho avant of joint and concurring negligence or !au~ of both the GRANTEE and the C~y of Dallas, responsibility and lndemnty, K any, shall be apponloned comparatively In am~rdance w~h the laws olthe State ol Texas; wkhout, howavar, wahling any govammantallmmunKy avallabl$ to tha Cky ol Dallas under Texas law and without waiving any dalons., ot tho panlts, under Texas law. This obligation to lndamnKy and defend shall also Include any Claim tor damage thai any utility or communlcazion' i:ompany, whathor publicly or privately ownad, may sustain or rocalve by rauon of GRANTEE'• GRANTEE'• use otthollcansed araa or GRANTEE'slmprovamonts and equlpmontlocaled thoraon. In addition to tholoregoing, GRANTEE covenants and agrtil$ mwar to mlll. . • .. . .. ·. ·. .· . . . . ' . . ... ---·. . .-·. ·-_, ~ -\ : AND pueuc Ricalifs.oF-WAY oF mE crtY OF oAI:i.As. · . . . _,_ '· . . ' . ' . . .. • ·• . . ; . . .· -. . . . ~ ~--.. : ' . wtfEREA$, a .,.---:----:--...;..;._...,.;.,.~ . . her.elnder refeiTed to as • •, desires u~ ·of certain Public • righis-of~y within the City of ·Dallas for. the purPoses Bat forth below pu~ant to the . ' . . . . . . ~rovlslon of the ~ws of the State of Texas, Including, but .not limited to, Article 1416 ' . V.A.C.S.: and. · wHEREAS, It Is the pOSition of the City Of Dallas that all users of space in ttie pubHc r.i ght-of-way for t.h e conduct of a private busin.e ss m. u. st obtain either a franchise or a ' license.oas ~~~.by Chapt8r XIV of the CityCh~r: and . WHEREAS; the City contends that . a ·:franchise. Is the appropriate Instrument~ to authorize the use of public riglit-of-way for. direct · se~ce coMeCtion to' individual cust9mers, and that IIQE!nses may be used tci authOrize such use for lntra.,cQmpany . r.lcilities for the provisions of long distanCe telecommunications services; and WHEREAS, the City Council has deten:nlned that It Is appropriate to gr6nt the · fOllowing llcerise to ____ ___,· and WHEREAS, and the City of Dallas agree this license does not affect any right, privilege or authorization existing apart from this license; WHEREAS, Is willing to accept this license solely on a eompromise and settlement basis, to avoid the time and expense of litigation, without waiving any rights it may have under Article 1416, V.A.C.S.; Now, Therefore; BE: IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS: SEC110N 1. That a Ucense, subject to the terms and conditions of this ordinance, hereln.after referred to as "license•, is hereby granted to --------' Its successor and assigns, to occupy, maintain and utili2;.e for the purposes set out herein below the 0066F.WPF SENT sv:xerox Telecopier 7021 :10-17-95 ; 9:07AM ; 2149484118-+ 9316643:#18 .· subsurface space beneath the tract(s) of land described In Exhibit A, whiCh is attachsd hereto and made a part hereof, hereinafter referred to as the "public rights-of-WaY" or "licensed area• ltJ9ether with the rights of ingresa and egress to or from said. public rights-of-way or licensed anJa for the pUrposes set forth In Section 5. . . SEC110N 2. That this li~nse is granted for a tenn of twanty (20) years froin the date of passage of this ordinance unless sooner tenninated a<:aX'dlng to oth~terms and provisions herein contained. SE0110N s. That shall pay to·the City of Dallas the "minimum• · f~ of DOI.IJ\RS ($ · ) annually, said sum to become dUe and payable on the 2nd day of January each year In advance, during the tenn hereof,; provided, however, that the first payment due hereunder in the sum of _ . . .....____ DOLL.AAS. ($ shall become due and payable upon the final passage of this ordinance and shall c:over the consideration for the year 19_. This minimum fee represents the value, ac:oording to Section 43·114 (6) (2) of the Dallas City Code, of the public rights-of-way three feet In width to be ussd by for the construction of all certain wires, cables, un®rground conduit& · and manholes (hereinafter the "facility" or "facclities") In connection with a long-~--' :-;~,~'P;'>i · . . · ... -. . ' -.· -. . ... -. . . -.. -~-~---,~j_;_-·---.:~-:--_;:·~'~'l~-requJ.rec:J:pursuant pursuant to Section 13 Of this_ ~~c:e; · -. · .'-· -· · SECTION 5, That tile licenSed area shall be-used by for the . . -following purposes: the ·lnstallatloh: ·.use, ci~ratlon, . construCtion, reconstrudlon, ·_ replacement, repair and/or maintenance· of a taclllty or facilities In connectiOn with the -system. The use of the public righiB.of-way in the licensed area for any other purposes, Including the direct connection of customers or as a local distribution prgvlder, providing cableaervtoes or operating a cable system as d~~ed in the cable communiCations pQiicy act-of 1984 (47 U.S.C.A. 1521 et seq.) a amended or as recognized by the Federal -. . . . . Communications Commission, is not aulh~ by this ordinance. SEcnON 6. The installation, ccinstructlon, recOnstruCtion replacement or repair work done by In the licensed area, _under the direction of the Director of Public .Works, that may affect the property of other public or private utilities loCated in the licensed area or public rights-of-way shall be subject to and governed by all laws, rules, ordinances and regulations of the City of Pallas and State of Texas, that are applicable to insuring the work done does not Interfere with or Inconvenience the public in the use of the 6censed area including, but not limited to the following: A. Prior to the start of construction of the faclrrties within the licenSed area or public rights-of-way, shall submH final construction and engineering plans to the City's .Direotor of Public Works for his reviaw and approval, pursuant to the standards generally applicable to requests for licenses to use the public rights-of-way, Including the City's Utility Location and Coordination Policy. Approval of such plans will not be unreasonably deriied, delayed or withheld by the City, 's design and construction must be coordinated with other utility facilities In the licensed area and with the Utility Management Division of the Revenue and Taxation Department In accordance with the City of Dallas Utility Location and Coordination Policy. Except in an emergency, . shall contact Dallas Water Utilities 0086F.WPF -3-.. SENT BY:xerox Telecopier 7021 :10-17-95 9:09AM : 2149484118-< 9316643:#20 •· (670-6398), Texas Utilities Electric Company (698-7996), Lone Star Gas Company(426-7041),SouthwestemBeiiTelephoneCompany(4 64-4095))and TCI.Cablevislon of Dallas (320-7502) or the successors.to such companies and any other franchise$ pursuant to Chapter ~4 of the Dallas City Charter, at least forty eight (48) hours prior to any Installation, construction, reconstrucllon, replacement or repair work by of Its facilities Within the licensed ~:~n11:1 that may affect the property ot any of these utilities and COf'!'lmunlcatlon facilities located In the licensed area or public rights-of-way so thai they may locate their facilities for . or its contractcn and, at their option, have a representative present during the period of construcllon, reconstruction or· replac:ement or repair. · · · · · B. All excavations and other construc!lon in the streets shall be so carried out as to. interfere as lltUe as practical with the surface use of the streets and . sidewalks and with the surface use of private property, In aocordance with any lawful and reasonable clirecllon given by and under the authority ot the. governing body of the City under the police and regulatory powers of the City necessary to provide for public convenience and safety. agrees to promptly restore all public rights-of-way excavated by to substantially the same condition as before such eXcavation In accordance with plans &Pproved by and to the reasonable satisfaction of the City's Directors of Public Works and Streets and Sanitation Servic:es. In adcfltion, ":"""C. ,.,...--....,. _ shall contact the Department of Transportation (670-3260) In the event the Installation, construcllon, reconstruction, replacement, repair and/or maintenance of its faclllUes requires the temporary closing of a traffic lane or !aries. C. Except In an emergency, i:;hall not excavate any pavement In any licensed area or public rights-of-way or significant amounts of any unpaved licensed area or public rights-of-way without first securing a street cut permit or any ·other necessary permission of the City, but such permit or permission shall not be unreasonably delayed or withheld if the proposed excavation is In accordance with the terms of this ordinance. The City shall be notified as soon as practicable regarding work performed under emergency conditions. D. The City through1he Director of Public Works shall have the power at any time to order and require to remove or abate any facility that creates a public nuisance or Is dangerous to life or property, and In case _ __ __, after notice, fails or refuses to comply, the City shall have the power to remove or abate same at the e>tpense of all without compensation or liability for damages to -------' SECTION 7. In this section list all appropriate conditions and requirements for this specific request. If none, delete this section and renumber the remaining sections. 0086F.WPF ·4· SENT ev:xerox Telecopier 7021 :10-17-95 : 9:o9AM : 2149464116-+ 9316643:1121 SECllON a. That In tht~ QWnt that the governing body of the City of Dallas e.uthorlza abutting landowners to occupy space under the surface of any. public rights~·way wlthi~ the licensed ·area, such grant to e.butfing· ~downers shall be subject ~o the rights of described in this ordlnanee • . · SECllON 9. That in the·event that. the govemlrig:bOciy Or the City of Dallas dOSQS ' -. -. or abandons any publionghW-way which c:critidns .any:facllltia of . any conveyance. of land conta!ned in ~ch .dosed or abandoned street; alley,· highwa)i ·or public ptace shall be·su~ect to the rights Ot . · •. de8crltied in this ordinan~. In tl)e event that &nf portion of the public rlghts.of~way that includeS faeilities of· the · system b.eciomes the ai.abject of cOndemnation proceedings, It Is agreed that __ _ __ .property rights and Interest In such public rights.of-wayshatl be severed from the City's Interest. In s.uch proceedings and any such condemnation awards shall be specifiCally allocated between Interest and the Clty'slntenm. The.City . . . shall make a diligent effort to notify wlihln a rea8onable .time of any condem!'l&tion action (or threatened acUon) filed against the public rights-of-way that affects any faciiJtY cif the system, or any proposed sale in II~ of condemnation. . SEC110N ~0. That shall Indemnify, defend, save and hold hatml&ss the City and All of Its officers, agents, and employees from all suits, acUons, or dalms of any character, style, and description, brought for or on account of any Injuries or damages received or suStainea by any person or any property occasioned by, or arising out of, the inBtallation, construction, reconstruction, replacement, repair and/or maintenance of 's facilities In the public rights-of-way on account of any negligt~nt act or omission of any representative, agent, and/or employee of ___ _ _ 's. This indemnification shall also cover any claim for damage that any utility or communications company, whether publicly or privately owned, may sustain or receive to Its property located In the licensed area or public rights-of-way by reason of __ __ 's negligent use of said public rights-of-way or 's negligent installation, construction, reconstruction, replacement. repair and/or maintenance of facilities located therein, except to the extent of negligence on the part of the utility or a communications company, its contractor, agents or employees. shall never make any claim of any kind or character whatsoever against the City of Dallas for damages that It may 0086F.WPF -5- SENT ev:xerox Telecopier 7021 :10-17-95 : 9:48AM : 2149484118"' 9316643:# 2 .-suffer by reason of the Installation, construction, reconstruction, operation and/or · <. · maintenance of any public lmp~ent, utility, or communication facility, whether . · presently ln place or which may In "e futura be Constructed or Installed, including but not . . . . limited to, any water. and/or· san~ sewer mains and/Or stacm sewer facilities &J:1d· . Whether suc:h d~e Is due to flooding, infiltratiOn. ~ow and/or seepag~ caused .. · · . . . -. . . . . . . ' from .the fallura -~any lnstalla1iori, natural caiJses or_ from any ()ther ~or Wit~·· . kind or natuie . except for d~ occasioned by. Intentional miSConduct ~ ~-.. · negligence on the~ of the City; It being further ~y underStood this limltatian· of .. · .ilabiuty does not apply to Independent con~ Of the.City of ·oatlas. . . . -' . . SEC110N .11. inat'lhe governing body qfthe City of Dallas, n. Director of Pi.rbllc . . . . Wortck(s) ________ within the limits hereinafter more fully described, for the purpose of ; providing for the terms and conditions of this license; providing for the annual compensation to be paid to the City of Dallas; providing for payment of the publication fee; and providing an effective date of this license and ordinance. oooOooo WHEREAS, on --------' the City Council of the City of Dallas passed ordinance No. , thereby granting ----------------right, privilege and franchise to utilize certain public property in for the maintenance and use of ----; and WHEREAS, the rights granted by said ordinance have expired; and INSERT HISTORICAL STRUCTURE VERBAGE IF APPROPRIATE the WHEREAS, has requested renewal of the rights granted by said ordinance; and WHEREAS, the City Council of the City of Dallas is of the opinion that a ·' license should be granted to to continue to use this public property for said purpose, subject to the conditions hereinafter more fully set out; NOW, THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS: SECTION 1. That a Private/Revocable License, hereinafter referred to as "license", subject to the restrictions and conditions of this ordinance, is hereby granted to ------------------------- -------'-----------------------I its occupy, successors and maintain and assigns, hereinafter referred to as GRANTEE, to utilize for the purpose set out hereinbelow the tract ( s) of land described in Exhibit A, hereinafter referred to as "licensed area", which is attached hereto and made a part hereof. SECTION.F F -37 SECTION 2. That this license is granted for a term of forty (40) years, unless sooner terminated according to other terms and provisions herein contained. SECTION 3. That GRANTEE shall pay to the City of Dallas the sum of DOLLARS ($ ) annually for the license herein granted, said sum to become due and payable on the 2nd day of January each year, in advance, during the term hereof; provided, however, that the first payment due hereunder in the sum of -------DOLLARS ($ ) shall become due and payable upon the final passage of this ordinance and shall cover .the consideration for 19__ Such consideration shall be in addition to and exclusive of any other taxes or special assessments required by law to be paid by GRANTEE. Should GRANTEE fail to pay the above stated annual fee within sixty (60) days of the due date, the Property Management Director may terminate this license. All sums payable to the City of Dallas hereunder shall be paid to. the City Controller of the City of Dallas and deposited in Fund 004, Agency PGT, Org. 1301, Revenue Source 8200. SECTION 4. That the licensed area shall be used by GRANTEE for the following purpose under the direction of the Director of Public Works of the City of Dallas: SECTION 5. That this license is subject to the provisions set forth in EXHIBIT B, attached hereto and made a part hereof. SECTION 6, That this license is nonexclusive and is made expressly subject and subordinate to the right of the City to use the licensed area for any public purpose. (The Governing Body of the City of Dallas reserves the right to terminate and cancel this license, at will, by resolution duly passed by said Governing B6dy./The Governing Body of the City of Dallas reserves the right by resolution duly passed by said Governing Body, to terminate and cancel this license upon giving GRANTEE sixty (60) days notice of its intent·· to cancel.) Upon termination, all rights granted hereunder shall thereupon be considered fully terminated and cancelled and the City of Dallas shall not be held liable by reason thereof. Said resolution shall be final and shall not be subject to review by the Courts. GRANTEE shall have the right of cancellation upon giving the City of Dallas sixty (60) days written notice of its intention to cancel. In the event of either termination or cancellation by the City or GRANTEE, as the case may be, this license shall become null and void and GRANTEE or anyone claiming SECTION.F F -38 any rights under this instrument shall remove any improvements and encroachments from the licensed area at GRANTEE's expense. Failure to do so shall subject GRANTEE to Subsection (a). All work shall the provisions contained in EXHIBIT B,be done at the sole cost of GRANTEE and to the satisfaction of the Director of Public Works. SECTION 7. That the license granted hereby shall not become effective until and unless GRANTEE files an final acceptance, in writing, to the terms and conditions of this ordinance with the Property Management Director and said acceptance shall be forwarded to the City Secretary of the City of Dallas. In the event said written final acceptance is not filed within six (6) months after the passage of this ordinance as provided for herein, then the Property Management Director may terminate this license. SECTION 8. That upon receipt of GRANTEE's final written acceptance, the Property Management Director is hereby authorized to execute a NOTICE OF LICENSE and to file same in the deed records of Dallas County. SECTION 9. That the terms and conditions contained in this ordinance shall be binding upon GRANTEE, its successors and assigns. SECTION 10. That this license may not be assigned without prior written approval from the Property Management Director, or his designee. Such assignment shall recite that it is subject to the terms, restrictions and conditions contained in this ordinance. The assignee shall deliver (evidence of ownership of property abutting the licensed area,) a copy of the assignment, along with the assignee's written acceptance of the provisions of this ordinance, to the Property Management Director within ten (10) days of such assignment; said assignment and written acceptance shall be forwarded to the City Secretary of the City of Dallas. Should GRANTEE fail to obtain prior written approval _for assignment of this license or fail to provide/the City of Dallas with the required written acceptance and a copy of the assignment, the Property Management Director may terminate this license. IF GRANTEE SELF-INSURES, INSERT THE SELF-INSURANCE PROVISION HERE AND RENUMBER THE REMAINING SECTIONS. SECTION That certify a copy of the City Secretary is hereby authorized and directed to this ordinance for recordation in the Deed Records of Dallas County, Texas, which-certified copy shall be delivered to the Property Management Director, or his designee. Upon receipt of the fee for SECTION.F F -39 the year 19 _ , an acceptable certificate of insurance and the fee for publishing this ordinance which GRANTEE shall likewise pay, the Property Management Director, or his designee, shall deliver to GRANTEE the· certified copy of this ordinance. The Property Management Director, or his designee, shall be the sole source for receiving certified copies of this ordinance for one (1) year after its passage. SECTION This ordinance shall take effect immediately from and after its passage and publication in accordance with the provisions of the Charter of the City of Dallas and it is accordingly so ordained. APPROVED AS TO FORM: SAM LINDSAY, Acting City Attorney BY:~--~~~~~~~------Assistant City Attorney PROPERTY MANAGEMENT DIRECTOR L. G. PEPPER PASSED ____________________________ __ SECTION.F F -40 'WHEREAS, _________________________________________________ is the owner of that certain structure located at/near the intersection of ____________________ __ --------------------------------' said structure being more commonly, and known as the ________________________ : and WHEREAS, said structure lies within the Historic District, and it is the desire of the City Council of the City of Dallas to promote the restoration and rehabilitation of buildings therein: and WHEREAS, it is the opinion of the City Council of the City of Dallas that said structure is a "historically significant structure" for the limited purpose mentioned in Chapter 43, Article VI, Section 43-115 (a) (2) of the City Code of the City of Dallas: and WHEREAS, has requested renewal of rights granted by said ordinance for the continued use and maintenance of -----------------------------------------------------------------------______ , which are an integral part of said historic structure: and SECTION • That in lieu of the insurance requirements specified in EXHIBIT B, Subsection (c), GRANTEE may self-insure to the extent permitted by applicable law under any plan of self-insurance, maintained in accordance with sound accounting practices, against the risks described in this Subsection (c) and shall not be required to maintain insurance hereunder provided that GRANTEE furnishes the City satisfactory evidence of the existence of an insurance reserve adequate for the risks covered by such plan of self-insurance, evidence of which shall be provided to the City prior to issuance of a certified copy of the ordinance to GRANTEE. SECTION.F F -41 EXHIBIT B ADDITIONAL LICENSE PROVISIONS PAGE 1 OF 2 That this license is granted subject to the following conditions, terms and reservations: (a) That at such time as this license is t~rminated or canceled for any reason whatsoever, GRANTEE. upon orders issu13d by the City acting through the Director of Public Works, or his designee, shall remove all installations, improvements and appurtenances owned by it situated in. under or attached to the licensed area. and shall restore the premises to its former condition in accordance with the requirements of the Director of Public Works at the sole cost of GRANTEE. In the event, upon termination of this license, GRANTEE shall fail to remove its installations, improvements and appurtenances and to restore the licensed area in compliance with orders issued by City, or such work is not done to the satisfaction of the Director of Public Works, than in either avant the City shall have the right to do all work necessary to restore said area to its former condition or cause such work to be done, and to assess the cost of all such work against GRANTEE; in neither event shall the City of Dallas be liable to GRANTEE on account thereat· (b) his further understood that it and when the City of Oa~las, in the exercise of its discretion, shall determine that the grade of any street, sidewalk or parkway should be modified or changed, or that any other work should be done in connection with any public improvement which will affect the licensed area, and/or any of GRANTEE's installations and improvements thereon, ~ny modifications or changes in construction or reconstruction of any public improvement attributable to GRANTEE's uiQ·Qf the licensed area and/or its installations and improvements thereon, shall be made at the sole expense of GRANTEE and to the satisfaction of the Director of Public Works. (c) At such time as this license is g