This Escrow Agreement is entered into this day of , 2004 by and between the CITY OF LAWRENCE, KANSAS (the “City”), and SOUTHWESTERN BELL WIRELESS, LLC, as general partner of the Kansas City SMSA Limited Partnership d/b/a Cingular Wireless (“Cingular Wireless”), its successors and assigns, and provides for the following:
1. The City is granting and leasing certain Property to Cingular Wireless for the installation, maintenance, and operation of a Communications Facility pursuant to the Site Agreement between the City and Cingular Wireless dated (“the Site Agreement”);
2. Under the terms of the Site Agreement, Cingular Wireless agrees to remove all personal property and trade fixtures within ninety (90) days of the termination of the Site Agreement unless the City gives Cingular Wireless express written consent to leave any such personal property and trade fixtures;
3. Under the terms of the Site Agreement, Cingular Wireless agrees to make a payment to the City to be held until such time as Cingular Wireless' personal property and trade fixtures are removed;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties hereto agree as follows:
1. Creation of Account. There is hereby created and established with the City the following special and separate account to be held by the City and designated as the CINGULAR WIRELESS COMMUNICATIONS FACILITY REMOVAL ACCOUNT (the “Cingular Wireless Account”).
2. Deposit to Account. Concurrently with the execution and delivery of this Agreement, and pursuant to the provisions of the Site Agreement, Cingular Wireless herewith deposits with the City, and the City acknowledges receipt and deposit into the Cingular Wireless Account, an interest-bearing account, the sum of Five Thousand and No/100 Dollars ($5,000.00) (the "Escrow Funds)
3. Creation of Lien and Application of Escrow Funds. Cingular Wireless is hereby given an express lien on and security interest in the Account, and all earnings thereon, until used and applied or returned in accordance with this Agreement. The principal and earnings on the Account are hereby pledged and assigned and shall be applied solely for the payment of the costs incurred by the City for the removal of the Communications Facility upon the termination of the Site Agreement referenced above if Cingular Wireless fails to timely remove the Communications Facility as provided in the Site Agreement. Within thirty (30) days following the removal of the Communications Facility, including complete removal of the shelter foundation and any grading and seeding work required thereby, whether by Cingular Wireless within the period specified in the Site Agreement or by the City following said period, any sums remaining in the Cingular Wireless Account shall be returned to Cingular Wireless.
4. Amendments to Agreement. This Agreement is made for the benefit of the City and Cingular Wireless, and it shall not be repealed, revoked, altered or amended without the written consent of the City and Cingular Wireless.
5. Termination. This Agreement shall terminate when the Communications Facility has been removed pursuant to the terms of the Site Agreement.
6. Notices. Except as otherwise provided herein, it shall be sufficient service of any notice, request, complaint, demand to be given to or filed with the following parties if the same is duly mailed by first class, certified or registered mail addressed:
Attention: Network Real Estate
7. Successors and Assigns. All of the covenants, promises, and agreements in this Agreement contained by or on behalf of the City or Cingular Wireless shall be binding upon and inure to the benefit of their respective successors and assigns whether so expressed or not.
8. Governing Law. This Agreement shall be governed by the applicable law of the State of Kansas.
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed as of the date first above written.
SOUTHWESTERN BELL WIRELESS, LLC,
Kansas City SMSA Limited Partnership,
d/b/a Cingular Wireless
Doug Pelletier, Construction and Real Estate Manager – KS/MO
Southwestern Bell Wireless Wireless , LLC
DTMDOCS 767861v23
Attention:
Network Real Estate