Loading...
07-096 - R TOWN OF PROSPER,TEXAS RESOLUTION NO. 07-096 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, HEREBY AUTHORIZING THE MAYOR OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE A LEASE AGREEMENT BETWEEN THE TOWN OF PROSPER, TEXAS AND TIERONE FOR LOCATING A WIRELESS INTERNET ANTENNA ON THE ELEVATED WATER TOWER LOCATED AT 1454 E.FIRST STREET. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER,TEXAS: SECTION 1: The Mayor of the Town of Prosper, Texas, is hereby authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, a lease agreement between the Town of Prosper, Texas and TierOne for locating a wireless internet antenna on the elevated water tower located at 1454 E. First Street,attached hereto. SECTION 2: This Resolution shall take effect immediately upon its passage. RESOLVED THIS THE 13`h day of November,2007. �rles Niswanger,Mayor ATTEST TO: ���9646iBIt�if ,44atthew D. Denton, TRMC Town Secretary o ° ° d O% tA°° 000000000°0 ®6� Location of Site- Name of Tenant-TierOne Converged Networks,Inc- TOWER SITE LEASE AGREEMENT THIS SITE LEASE AGREEMENT (this "Lease") is entered into this —Lscy� day of NQ)fW,(& 2007 ("Execution Date") between Town of Prosper, Texas, a Texas Municipal Corporation ("Landlord") and TierOne Converged Networks, Inc. ("Tenant"). The Landlord and Tenant are at times collectively referred to hereinafter as (the "Parties") or individually as (the "Party"). 1. Premises. (a) Subject to the following terms and conditions, Landlord leases to Tenant a portion of the real property (the "Property") described in the attached Exhibit A. Tenant's use of the Property shall be limited to that portion of the Property, together with temporary easements for access and utilities, described and depicted in the site plan attached as Exhibit A (collectively referred to hereinafter as the "Premises"). (b) The Premises, located at the Town of Prosper Elevated Water Tank located at 409 East First Street in the Town of Prosper, the County of Collin, the State of Texas, and a ground site at that location which comprises approximately twenty (20) square feet. 2. Term. The initial term of this Lease shall be five (5) years, commencing on the day Tenant notifies Landlord of Tenant's receipt of all applicable Government Approvals as defined below in Paragraph 3 (the "Commencement Date") and terminating at Midnight on the last day of the sixtieth (60th) full month following the Commencement Date. Landlord may request, for Town Council approval, to renew this Lease for three (3) additional five (5) year Term(s) (the "Extension Term") upon the same terms and conditions hereof. Tenant must notify Landlord in writing of Tenant's intent to renew the Lease at least ninety (90) days prior to the expiration of the existing Term. Landlord will place Tenant's request to renew the Lease on the next available Town Council agenda for consideration and possible action. 3. Permitted Use. (a) The Premises may be used by Tenant only for permitted uses, which are (i) the transmission and reception of communications signals; (ii) the construction, alteration, maintenance, repair, replacement and relocation of related facilities, antennas and equipment as defined in Paragraph 8; and (iii) activities related to any of the foregoing. (b) Tenant shall obtain (prior to or no later than one hundred eighty (180) days following the Commencement Date) at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the Premises from all applicable government and/or regulatory entities (the "Governmental Approvals"). If, for any reason, Tenant does not receive the Governmental Approvals described herein, this Agreement shall terminate immediately with no further notice and/or action of Landlord. 4. Rent/Internet Access. (a) Upon the Commencement Date, Tenant shall pay Landlord, in advance as rent, the sum of Eighteen Thousand Dollars TOWER SITE LEASE AGREEMENT(TierOne Conversed Networks.Inc.) Page I of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc and No Cents ($18,000.00) per year ("Rent") at Landlord's address specified in Paragraph 14 below. (b) As additional consideration for Landlord executing this Lease, Tenant agrees to provide, within one hundred eighty days (180) days of the Commencement Date, Landlord and the Prosper Independent School District ("PISD") uninterrupted wireless internet service which shall continue during the Term of this Lease and any extensions hereto ("internet service"). Tenant shall provide the internet service at no charge to PISD or Landlord, including but not limited to, any and all costs associated with the installation, establishment and/or implementation of the internet service. Landlord and Tenant agree to reasonably cooperate with each other, and PISD, in establishing, implementing and/or installing the internet service, including but not limited to, executing ancillary agreements and all other instruments and documents relating to the provision of said services, whether now or hereafter existing, in connection with the obligations set forth and/or contemplated herein. (c) If this Lease is terminated at a time other than on the last day of a month, Rent shall be prorated as of the date of termination for any reason other than a default by Tenant. (d) Upon execution of this Lease, Tenant shall pay Landlord a non- refundable fee of One Thousand Dollars and No Cents ($1,000.00), representing the reasonable fees and expenses of Landlord in negotiating and/or preparing the Lease. (e) Future rental payments are to be paid in a lump sum with annual rent payments, not including the initial rent payment due upon commencement of this agreement are due within thirty (30) days of the anniversary of the effective date of this agreement. S. Holdover Rent. If Tenant shall remain in possession of the Premises at the expiration of this Lease or any Renewal without a written agreement, such tenancy shall be deemed a month-to-month tenancy under the same terms and conditions of this Lease, except as to Rent, which shall increase by fifteen percent (15%) over the most recent Term's monthly Rent. 6. Extended Term Rent. Upon the extension of this Lease as provided for in Section 2, Rent shall increase by one hundred twenty-five percent (125%) of the GPI annually over the most recent Term's annual Rent for each and every Extended Term. 7. Interference. (a) Tenant shall not use the Premises in any way that interferes with the use of the Property by Landlord, or tenants or licensees of Landlord, with rights to the Property prior in time to Tenant's (subject to Tenant's rights under this Lease, including non-interference). In the event Tenant's equipment causes RF interference, and after Landlord has notified Tenant of such interference, Tenant will take all steps necessary to correct and eliminate the interference within forty-eight (48) hours. To the extent Tenant is unable to cure the interference within this timeframe, Tenant shall power down the TOWER SITE LEASE AGREEMENT fTierOne Converged Networks,Inc.) Page 2 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc. equipment causing the interference except for intermittent testing until such time as the interference is remedied; provided, however, such intermittent testing may not unreasonably interfere with Landlord's, or tenant's or licensees of Landlord with rights to the Property prior in time to Tenant's, use of the Property. If Tenant is unable to completely cure the interference within thirty (30) days of receiving notice from the Landlord as set forth above, Tenant shall remove the equipment which caused the interference, or at its option, terminate this Lease. (b) In the event that Landlord's or any other tenant's (identified under a lease established after the date of this Lease) equipment causes RF interference, and after Tenant has notified Landlord of such interference, Landlord or any other tenant (as previously identified) will take all steps necessary to correct and eliminate the interference within forty-eight (48) hours. To the extent Landlord or Landlord's other tenant is unable to cure the interference within this timeframe, Landlord or any other tenant shall power down the equipment causing the interference except for intermittent testing until such time as the interference is remedied; provided, however, such intermittent testing may not unreasonably interfere with Tenant's use of the Property. If Landlord, or any other tenant described above, is unable to cure the interference within thirty (30) days of receiving notice from the Tenant as set forth above, Landlord, or the subject Tenant, will remove the equipment which caused the interference, or at Landlord's option, terminate this Lease. (c) The Parties acknowledge that there will not be an adequate remedy at law for non-compliance with the provisions of this Paragraph 7 and therefore, either Party shall have the right to specifically enforce the provisions of this Paragraph in a court of competent jurisdiction. Landlord makes no warranty or representation, express or implied, that the airspace used by Tenant will be free of electronic or other interference. 8. Improvements: Utilities: Access. (a) Tenant shall have the right, at its expense, to erect and maintain on the Premises the following improvements, personal property and facilities as shown in Exhibit B (collectively the "Communication Facilities"), Prior to installation, construction and/or erection of the Communication Facilities, Tenant must submit for Landlord's approval, the location of such all improvements, including the Communication Facilities, and the construction plans and specifications for the Communication Facilities to Landlord for Landlord's approval, which approval shall not be unreasonably withheld or delayed. In connection with Tenant's submittal, Tenant and Landlord will conduct a pre-construction meeting to coordinate the installation, erection and construction activities and schedules with regard to the Communication Facilities. With the prior written consent of Landlord, Tenant shall have the right to replace or upgrade the Communication Facilities at any time during the term of this Lease, provided that no additional antennas, cable runs, brackets, or ground space is required. Tenant shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances. The Communication Facilities shall remain the exclusive property of Tenant. Tenant shall have the right to remove the Communication Facilities upon TOWER SITE LEASE AGREEMENT ITierOne Gonveroed Networks,Inc.1 Page 3 of 13 500973.v1 Location of Site- Name of Tenant-TierOne Converged Networks,Inc. the termination of this Lease; provided Tenant returns the Premises to Landlord in the same condition as of the date of this Lease, reasonable wear and tear excepted. (b) Tenant shall, at Tenant's expense, keep and maintain the Premises and all buildings and improvements now or hereafter located thereon in good condition and repair during the term of this Lease. Upon termination of this Lease, the Premises shall be returned to Landlord in the same condition as of the date of this Lease, reasonable wear and tear excepted. (c) Tenant shall pay any utility charges due to Tenant's use. Tenant shall not use utilities installed by or for Landlord. Tenant shall have the right to install utilities, at Tenant's expense, and to improve the present utilities on the Premises (including, but not limited to the installation of emergency power generators). Upon termination of this Lease, Tenant shall remove all utilities installed for Tenant. (d) As partial consideration for rent paid under this Lease, Landlord hereby grants Tenant a temporary easement ("Easement') for ingress, egress and access (including access as described in Paragraph 1) to the Premises. Upon notice, Landlord shall have the right to relocate the Easement to Tenant. Any Easement provided hereunder shall terminate immediately upon the termination of this Lease. Tenant, its authorized personnel, and Landlord shall be entitled to twenty-four (24) hour, seven (7) days per week access to the Premises. For purposes hereof, authorized personnel shall mean only authorized employees, engineers, technicians, or properly authorized contractors of Tenant or persons under their direct supervision. All access to the Premises by Tenant shall be subject in each instance to the reasonable security requirements and reasonable rules and regulations from time to time in effect at the Property, of which Landlord shall inform Tenant in advance and in writing. (e) The Landlord reserves the right, at any time, to perform any type of maintenance and/or repair on the Property; provided however, except in emergency situations, if any maintenance and/or repair work will substantially affect Tenant's permitted uses of the Premises, Landlord will use its best efforts to provide Tenant with at least sixty (60) days prior written notice of the intended repair and/or maintenance work, along with a schedule showing dates and duration of such repair and/or maintenance work. Landlord shall also provide Tenant with the opportunity, at Tenant's cost and expense, to temporarily relocate and continue to operate its antennas, or otherwise to secure the antennas or the Communication Facilities generally, to protect them from damage. Tenant shall be permitted to install temporary facilities necessary to keep its Communication Facilities operational, subject to Landlord's prior written consent, which consent shall not be unreasonably withheld. Further, any maintenance will be conducted by Landlord as diligently and expeditiously as possible. If any temporary facilities are installed as a result of this Paragraph, Tenant shall remove said temporary facilities immediately upon Landlord's completion of any maintenance and/or repair work. (f) In the event that Tenant requires access to Premises and Landlord deems Landlord's personnel's presence is required for said access then Tenant TOWER SITE LEASE AGREEMENT(TierOne Conversed Networks.Incl Page 4 of 13 500973A Location of Site- Name of Tenant-TierOne Converged Networks,Inc will reimburse Landlord at a rate of$100/hour per required person. This rate will include 1/2call-out time for Landlord's personnel to arrive at Premises plus time on site plus Y2 hour return time from Premises for Landlord's personnel's return to normal duty area. 9. Termination. If either party breaches a provision of this Lease, the non- breaching party shall give the other party written notice of the breach. If the breaching party has not cured the breach within thirty (30) days of such notice ("Cure Period"), except as otherwise provided herein, this Lease may be terminated by non-breaching party, without any penalty or further liability of the non-breaching party, as follows: a. Failing to pay Rent when due. b. Failing to pay taxes, assessments, insurance payments or other charges required to be paid by Tenant by this Lease. c. Failing to use, maintain and operate the Premises as this Lease requires, d. Assigning or subletting the Premises without the prior written consent of Landlord, except as permitted by Section 17 herein. e. Committing waste on the Premises. f. Maintaining, committing or permitting the maintenance or commission of a nuisance on the Premises. g. Denying Landlord access to the Premises. h. Using the Premises for any unlawful purpose, whether the purpose is in addition to or in lieu of, the uses specifically permitted by this Lease. i. Failure to Comply with the terms and conditions of this Lease within the Cure Period. j. At the time the Property transfers to a condemning authority, pursuant to a taking of all or a portion of the Property sufficient in Tenant's determination to render the Premises unsuitable for Tenant's use. Landlord and Tenant shall each be entitled to pursue their own separate awards with respect to such taking. k. If the Tenant elects to terminate for any other reason than provided in this subsection, the Tenant agrees to pay a fee equal to the balance of the Rent due under Lease for the remainder of the Town's fiscal year. 10. Effect of Termination. No termination of this Lease shall relieve either party from paying any sum or sums then due and payable under this Lease, or from any claims for damages accruing under this Lease. No termination will prevent either party from enforcing payment of the sum or sums or claims for damages by any remedy provided by law, The rights and remedies under this Lease are cumulative and non-exclusive, and the parties may pursue any of those rights and remedies or any other remedies provided by Texas law. TOWER SITE LEASE AGREEMENT(TIerone Conversed Networks.Inc.) Page 5 of 13 5009710 Location of Site- Name of Tenant-Tierone Converged Networks,Inc. 11. Waiver. No waiver by either party of a breach of any provision of this Lease may be deemed or alleged to be a continuing waiver or a waiver Of any other breach, whether the same or of any other covenant, condition or restriction of this Lease. 12. Insurance. The Parties hereby waive any and all rights of action for negligence against the other which may hereafter arise on account of damage to the premises or to property, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. Landlord and Tenant each agree that at its own cost and expense, each will maintain comprehensive general liability and property liability insurance with liability limits of not less than $1,000,000 for injury to or death of one or more persons in any one occurrence and $2,000,000 for damage or destruction to property in any one occurrence, or $3,000,000 combined single coverage for bodily injury and property damage. Tenant will list Landlord as an additional insured and such insurance shall be carried with insurance companies authorized to transact business in Texas. Tenant shall provide Landlord with a certificate of insurance indicating such coverage prior to beginning any activities under this Lease. The certificate shall include assurance that Landlord shall be notified in writing by the insurance company or agent of any cancellation not less than thirty (30) days prior to the effective date of such cancellation. All insurance shall be with companies with a "Best's" Insurance Rating of"A2 or better. 13. Hold Harmless/Release. TENANT SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS LANDLORD AND ITS TOWN COUNCIL MEMBERS, OFFICERS, AGENTS, REPRESENTATIVES AND EMPLOYEES FROM AND AGAINST ALL DAMAGES, INJURIES (INCLUDING DEATH , CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND EXPENSES INCURRED IN ENFORCING THIS INDEMNITY), CAUSED BY THE NEGLIGENT, GROSSLY NEGLIGENT, AND/OR INTENTIONAL ACT AND/OR OMISSION OF TENANT, ITS OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, SUBCONTRACTORS, LICENSEES, INVITEES OR ANY OTHER THIRD PARTIES FROM WHOM TENANT IS LEGALLY RESPONSIBLE, IN ITS/THEIR PERFORMANCE OF THIS LEASE AND/OR ARISING OUT OF THE CONDUCT OR MANAGEMENT OF TENANT'S BUSINESS ON THE PREMISES OR FROM ITS USE OF THE PREMISES PURSUANT TO THIS LEASE, REGARDLESS OF THE JOINT OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF THE LANDLORD (HEREINAFTER "CLAIMS"). TENANT IS EXPRESSLY REQUIRED TO DEFEND LANDLORD AGAINST ALL SUCH CLAIMS. TOWER SITE LEASE AGREEMENT(TierOne Conversed Networks,Inc.) Page 6 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc. IN ITS SOLE DISCRETION, LANDLORD SHALL HAVE THE RIGHT TO APPROVE OR SELECT DEFENSE COUNSEL TO BE RETAINED BY TENANT IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND INDEMNIFY LANDLORD, UNLESS SUCH RIGHT IS EXPRESSLY WAIVED BY LANDLORD IN WRITING. LANDLORD RESERVES THE RIGHT TO PROVIDE A PORTION OR ALL OF ITS OWN DEFENSE; HOWEVER, LANDLORD IS UNDER NO OBLIGATION TO DO SO. ANY SUCH ACTION BY LANDLORD IS NOT TO BE CONSTRUED AS A WAIVER OF TENANT'S OBLIGATION TO DEFEND LANDLORD OR AS A WAIVER OF TENANT'S OBLIGATION TO INDEMNIFY LANDLORD PURSUANT TO THIS LEASE. TENANT SHALL RETAIN LANDLORD APPROVED DEFENSE COUNSEL WITHIN SEVEN (7) BUSINESS DAYS OF LANDLORD'S WRITTEN NOTICE THAT LANDLORD IS INVOKING ITS RIGHT TO INDEMNIFICATION UNDER THIS LEASE. IF TENANT FAILS TO RETAIN COUNSEL WITHIN SUCH TIME PERIOD, LANDLORD SHALL HAVE THE RIGHT TO RETAIN DEFENSE COUNSEL ON ITS OWN BEHALF, AND TENANT SHALL BE LIABLE FOR ALL COSTS INCURRED BY LANDLORD. TENANT HEREBY FURTHER RELEASES, WAIVES, DISCHARGES, HOLDS HARMLESS, INDEMNIFIES AND AGREES NOT TO SUE LANDLORD, ITS TOWN COUNCIL MEMBERS, OFFICERS, AGENTS, EMPLOYEES, AND REPRESENTATIVES (HEREINAFTER REFERRED TO AS THE "RELEASEES"), FOR ANY AND ALL RIGHTS AND CLAIMS ARISING FROM ANY AND ALL DAMAGES WHICH MAY BE SUSTAINED BY TENANT, THE COMMUNICATION FACILITIES AND RELATED EQUIPMENT, IN CONNECTION WITH THE USES DESCRIBED HEREIN AND/OR THE PERFORMANCE OF THIS LEASE. THE RELEASE AND WAIVER SHALL BE BINDING ON TENANT, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, SERVANTS AND ASSIGNS. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS LEASE. 14. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by overnight carrier to the following: If to Landlord, to: Town of Prosper Attn: Mike Land, Town Manager 121 W. Broadway P.O. Box 307 TOWER SITE LEASE AGREEMENT(TierOne Converoed Networks.Inca Page 7 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,inc. Prosper, Texas 75078 With copy to: Abernathy, Roeder, Boyd & Joplin, PC Attn: Rebecca Brewer 1700 Redbud, Suite 300 McKinney, TX 75069-1210 If to Tenant, to: TierOne Converged Networks, Inc. Attn: Kevin Weaver, President 1700 Commerce Street, Suite 1190 Dallas, Texas 75201 15. Title and Authority. Landlord covenants and warrants to Tenant that Landlord has full right, power and authority to execute this Lease; it has good and unencumbered title to the Premises free and clear of any liens or mortgages, except those disclosed to Tenant. 16. Environmental Laws. (a) Landlord will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the Property, unless such conditions or concerns are caused by the activities of the Tenant. (b) TO THE EXTENT PERMITTED BY LAW, LANDLORD SHALL HOLD TENANT HARMLESS AND INDEMNIFY THE TENANT FROM AND ASSUME ALL DUTIES, RESPONSIBILITY AND LIABILITY AT LANDLORD'S SOLE COST AND EXPENSE, FOR ALL DUTIES, RESPONSIBILITIES, AND LIABILITY (FOR PAYMENT OF PENALTIES, SANCTIONS, FORFEITURES, LOSSES, COSTS, OR DAMAGES) AND FOR RESPONDING TO ANY ACTION, NOTICE, CLAIM, ORDER, SUMMONS, CITATION, DIRECTIVE, LITIGATION, INVESTIGATION OR PROCEEDING, INCLUDING WITHOUT LIMITATION ANY CLAIMS IN STRICT LIABILITY, WHICH IS IN ANY WAY RELATED TO: A) FAILURE TO COMPLY WITH ANY ENVIRONMENTAL OR INDUSTRIAL HYGIENE LAW, INCLUDING WITHOUT LIMITATION ANY REGULATIONS, GUIDELINES, STANDARDS, OR POLICIES OF ANY GOVERNMENTAL AUTHORITIES REGULATING OR IMPOSING STANDARDS OF LIABILITY OR STANDARDS OF CONDUCT WITH REGARD TO ANY ENVIRONMENTAL OR INDUSTRIAL HYGIENE CONCERNS OR CONDITIONS AS MAY NOW OR AT ANY TIME HEREAFTER BE IN EFFECT, UNLESS SUCH COMPLIANCE RESULTS FROM CONDITIONS CAUSED BY THE TENANT; AND B)ANY ENVIRONMENTAL OR INDUSTRIAL HYGIENE CONDITIONS ARISING OUT OF OR IN ANY WAY RELATED TO THE CONDITION OF THE PROPERTY OR ACTIVITIES CONDUCTED THEREON, UNLESS SUCH ENVIRONMENTAL CONDITIONS ARE CAUSED BY THE TENANT. (c) TENANT SHALL HOLD LANDLORD HARMLESS AND INDEMNIFY THE LANDLORD, IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN PARAGRAPH 13, FROM AND ASSUME ALL DUTIES, RESPONSIBILITY AND LIABILITY AT TENANT'S SOLE TOWER SITE LEASE AGREEMENT(TierOne Conversed Networks.Inc.) Page 8 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc. COST AND EXPENSE, FOR ALL DUTIES, RESPONSIBILITIES, AND LIABILITY (FOR PAYMENT OF PENALTIES, SANCTIONS, FORFEITURES, LOSSES, COSTS, OR DAMAGES) AND FOR RESPONDING TO ANY ACTION, NOTICE, CLAIM, ORDER, SUMMONS, CITATION, DIRECTIVE, LITIGATION, INVESTIGATION OR PROCEEDING, INCLUDING WITHOUT LIMITATION ANY CLAIMS IN STRICT LIABILITY, WHICH IS IN ANY WAY RELATED TO: A) FAILURE TO COMPLY WITH ANY ENVIRONMENTAL OR INDUSTRIAL HYGIENE LAW, INCLUDING WITHOUT LIMITATION ANY REGULATIONS, GUIDELINES, STANDARDS, OR POLICIES OF ANY GOVERNMENTAL AUTHORITIES REGULATING OR IMPOSING STANDARDS OF LIABILITY OR STANDARDS OF CONDUCT WITH REGARD TO ANY ENVIRONMENTAL OR INDUSTRIAL HYGIENE CONCERNS OR CONDITIONS AS MAY NOW OR AT ANY TIME HEREAFTER BE IN EFFECT, UNLESS SUCH COMPLIANCE RESULTS FROM CONDITIONS CAUSED BY THE LANDLORD; AND B) ANY ENVIRONMENTAL OR INDUSTRIAL HYGIENE CONDITIONS ARISING OUT OF OR IN ANY WAY RELATED TO THE CONDITION OF THE PROPERTY OR ACTIVITIES CONDUCTED THEREON, UNLESS SUCH ENVIRONMENTAL CONDITIONS ARE CAUSED BY THE LANDLORD. THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS LEASE. 17. Assignment and Subleasing. Tenant may assign or sublease this Lease, in whole or in part, without Landlord's consent, to the Tenant's principal, affiliates, subsidiaries, subsidiaries of its principal or to any entity that acquires all or substantially all of the Tenant's assets in the market defined by the Federal Communications Commission in which the Property is located by reason of a merger, acquisition, or other business reorganization. Tenant may not otherwise assign or sublease this Lease without the prior written approval of Landlord, which approval shall not be unreasonably withheld. Additionally, Tenant may, with the prior written consent of Landlord, mortgage or grant a security interest in this Lease and the Communication Facilities. 18. Successors and Assigns. This Lease shall be binding upon and inure to the benefit of the parties hereto and their respective officers, directors, partners, employees, representatives, agents, vendors, grantees, and/or trustees, heirs, executors, administrators, legal representatives, successors and assigns, as authorized herein. 19. Miscellaneous. a. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind that are not set forth herein. Any amendments to this Lease must be in writing and executed by both parties. b. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker and shall hold the other party harmless from any claims for commission by such broker. TOWER SITE LEASE AGREEMENT(TierOne Converped Networks,Inc.), Page 9 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc c. This Lease shall be construed in accordance with the laws of the State of Texas. Exclusive venue shall be in Collin County, Texas. d. This Lease may be executed in duplicate originals. A facsimile signature will also be deemed to constitute an original if properly executed. e. Notwithstanding anything herein to the contrary, neither Landlord nor Tenant shall be liable for the failure to perform its respective duties under this Lease if such failure is caused by a catastrophe, riot, war, governmental order or regulation, fire, accident, act of God, or other similar or different contingency beyond the reasonable control of Landlord or Tenant. f. The parties agree that Landlord has not waived its sovereign immunity by entering into and performing its obligations under this Lease. g. Tenant will maintain its equipment in compliance with FCC guidelines. Landlord agrees to, if required by the FCC, allow the Tenant to post warning signs, in a location approved by Landlord and in accordance with Town of Prosper Ordinance No. , as it exists or may be amended, for the purpose of complying with FCC guidelines. h. All warranties, representations and covenants made by Tenant in this Lease or in any certificate or other instrument delivered by Tenant to Landlord under this Lease shall be considered to have been relied upon by Landlord and will survive the satisfaction of any fees under this Lease, regardless of any investigation made by Landlord or on Landlord's behalf. i. This Lease is executed by the parties hereto without coercion or duress and for substantial consideration, the sufficiency of which is forever confessed. j. The individuals executing this Lease on behalf of the respective parties below represent to each other and to others that all appropriate and necessary action has been taken to authorize the individual who is executing this Lease to do so for and on behalf of the party for which his or her signature appears, that there are no other parties or entities required to execute this Lease in order for the same to be an authorized and binding agreement on the party for whom the individual is signing this Lease and that each individual affixing his or her signature hereto is authorized to do so, and such authorization is valid and effective on the date hereof. k. In case one or more of the provisions contained in this Lease 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 thereof, and this Lease shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 1. Each signatory represents this Lease has been read by the party for which this Lease is executed and that such party has had an opportunity to confer with its counsel. TOWER SITE LEASE AGREEMENT(TierOne Converoed Networks.Inc,) Page 10 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc. m. Nothing in this Lease shall be construed to create any right in any third party not a signatory to this Lease, and the parties do not intend to create any third party beneficiaries by entering into this Lease; provided, however, PTSD shall be a third party beneficiary of this Lease for the sole purpose of receiving the internet service described in Paragraph 5 above. n. The parties agree that the Indemnity provisions set forth in Paragraphs 13 and 16 herein are conspicuous, and the parties have read and understood the same. o. All construction described herein shall be subject to and in compliance with all ordinances of Landlord, whether now or existing, hereafter amended or in the future arising. Evidence of any bonds required by Section 212.073 of the Texas Local Government Code, or other applicable law, shall be provided by Owner to Town. p. In any legal proceeding brought to enforce the terms of this Lease, the prevailing party may recover its reasonable and necessary attorney's fees from the non-prevailing party as permitted by Section 271.159 of the Texas Local Government Code, as it exists or may be amended. q. When referring to "Tenant" herein, this Lease shall refer to and be binding upon Tenant, and its officers, directors, partners, employees, representatives, contractors, agents, successors, assignees, vendors, grantees and/or trustees. r. This Lease shall be deemed drafted equally by all parties hereto. The language of all parts of this Lease shall be construed as a whole according to its fair meaning, and any presumption or principle that the language herein is to be construed against any party shall not apply. Headings in this Lease are for the convenience of the parties and are not intended to be used in construing this document. IN WITNESS WHEREOF, said parties have caused this Lease to be duly executed as of the date first above written. LANDLORD: TOWN OF PROSPER By: /z�"o�Kl��Z-1_ TeVVrt_'411- TENANT: TIERONE CONVERGED NETWORKS, INC., a Texas corporation By: _ Kevin Weaver, President TOWER SITE LEASE AGREEMENT(TierOne Converqed Networks.Inc.) Page 11 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc. EXHIBIT "A YY Description and Depiction of Property and Site Plan [_ pages attached] TOWER SITE LEASE AGREEMENT(TierOne Converqed Networks,Inc.3 Page 12 of 13 500973.0 Location of Site- Name of Tenant-TierOne Converged Networks,Inc. EXHIBIT "B " Depiction/Description of Communication Facilities [�pages attached] TOWER SITE LEASE AGREEMENT(TierOne Converaed Networks.Inc.) Page 13 of 13 500973.0 EXHIBIT C AFFIDAVIT THE STATE OF TEXAS § COUNTIES OF COLLIN/DENTON § 1, a member of the Contractor team make this affidavit and hereby on oath state the following: 1, and/or a person or persons related to me, have a substantial interest in a business entity that would be peculiarly affected by my work or decision on the project as those terms are defined in Article 988b, V.T.C.S. The business entity is: have/has) a substantial interest in this business entity for the following reasons: (Check all which are applicable) Ownership of 10% or more of the voting shares of the business entity. Ownership of $2,500 or more of the fair market value of the business entity. Funds received from the business entity exceed 10% of income for the previous year. Real property is involved and has an equitable or legal ownership with a fair market value of at least $2,506. A relative of mine has substantial interest in the business entity or property that would be affected by my decision of the public body of which I am a member. Other: Upon the filing of this affidavit with the Town of Prosper, Texas, I affirm that I will abstain from acting on any decision involving this business entity and from any further participation on this matter whatsoever. Signed this day of 2007. Signature of Official/Title Design Services Agreement Page 13 of 14 BEFORE ME, the undersigned authority, this day personally appeared and on oath stated that the facts hereinabove stated are true to the best of his/her knowledge or belief. Sworn to and subscribed before me on this day of , 2007 Notary Public in and for the State of Texas My commission expires: Design Services Agreement Page 14 of 14