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2009-042ORDINANCE NO. 2009- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS APPROVING AMENDMENT NO. 1 TO TOWER LEASE BY AND BETWEEN THE CITY OF DENTON, TEXAS AND DALLAS MTA, L.P. DB/A VERIZON WIRELESS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas and Dallas MTA, L.P. d/b/a Verizon Wireless, entered into a Tower Lease on December 17, 1996 regarding the McKenna Park Tower; and WHEREAS, both the City of Denton, Texas and Verizon Wireless Texas, LLC, as general partner of Dallas MTA, L.P. d/b/a Verizon Wireless have agreed to further extend and modify said Tower Lease to provide for a ten-year term from January 1, 2008 through December 31, 2017, as provided in Amendment No. 1 ("Amendment") to Tower Lease, upon such terms and provisions as are stated in said Amendment; and WHEREAS, the City Council is of the opinion that the Amendment is in the best interests of the City and its residents and is in the public welfare; NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute and deliver an Amendment No. 1 to Tower Lease by and between the City of Denton, Texas and Dallas MTA, L.P. d/b/a Verizon Wireless, in substantially the form of the Amendment No. 1 to Tower Lease which is attached hereto and made a part of this ordinance for all purposes. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of '2009. MARK -BORkOU , MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY c'- Page 2 McKenna Park 161405A Location No.: 104679 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. AMENDMENT NO. 1 TO TOWER LEASE WHEREAS, pursuant to a Tower Lease (the "Agreement") dated December 17, 1996, the City of Denton ("Lessor") leased certain property to Dallas MTA, L.P. d/b/a Verizon Wireless ("Lessee"); WHEREAS, the Agreement expired by its own terms on December 17, 2006; WHEREAS, the Agreement initially contemplated the lease of two towers, the McKenna Park Tower and the Spencer Radio Tower (both as described in the Agreement); WHEREAS, the McKenna Park Tower is located on property described on Exhibit A attached hereto; WHEREAS, Lessor is no longer the owner of the Spencer Radio Tower; WHEREAS, the parties desire to reinstate the Agreement subject to the modifications set forth in this Amendment; WHEREAS, Lessee paid Annual Rent (as defined herein) for the year 2007; NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Effective as of December 18, 2006, the Agreement is hereby reinstated for an initial-term of ten (10) years, commencing as of January 1, 2008 (the "Commencement Date"). 2. The Agreement shall automatically be extended for three (3) additional five (5) year tern unless Lessee tenninates it at the end of the then-current tern by giving Lessor written notice of the intent to tenninate at least six (6) months prior to the end of the then-current teen. DAL LAS\3 56295.2 McKenna Park 161405A Location No.: 104679 3. Upon the Commencement Date, rental payments (the "Annual Rent") shall commence and be due at a total annual rental of Eighteen Thousand and No/100 Dollars ($18,000.00) to be paid on the anniversary of the Commencement Date, in advance, to Lessor or to such other person, firm or place as Lessor may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date by notice given in accordance with Paragraph 12 of the Agreement. The Annual Rent for the period beginning January 1, 2008 shall be due within thirty (30) days of full execution of this Amendment. 4. The Annual Rent shall be increased on the anniversary of the Commencement Date by an amount equal to three percent (3%) of the Annual Rent in effect during the previous year. 5. Lessee agrees to maintain the lighting on the tower in compliance with FAA and FCC regulations and shall cause the lighting to be inspected in accordance with 47 C.F.R. Section 17.47. Lessee shall maintain records of each such inspection (to include the date, time, person who made the inspection, and condition of the lighting as observed during the inspection), and shall provide copies of such records promptly upon any request for same by Lessor. In the event Lessee discovers, or receives notice that, one or more of the lights is not operating properly, Lessee shall immediately notify Lessor and FAA in accordance with 47 C.F.R. Section 17.48, and shall take steps to restore the lighting to proper operating condition, such restoration to be effected within fourteen (14) days from the discovery or notice, as the case may be. Any failure by Lessee to comply with this provision shall be a material default, and Lessor shall be entitled to any and all rights and remedies on account of such breach including, but not limited to. termination of this Agreement. 6. Exhibit A to the Agreement is hereby modified to provide for one (1) microwave dish, the particulars for which (size, placement, feed line, etc.) are set forth in the Exhibit B attached hereto. 7. The parties acknowledge that Lessor has no ownership right in the Spencer Radio Tower and the parties hereby release each other from any and all obligations under the Agreement with regard to said Tower, all references to which in the Agreement, including Exhibit A], being hereby deleted. 8. Lessee has installed an Equipment Shelter on the Premises, which structure Lessee may continue to utilize for the Tenn of the lease. Upon the expiration of the Term, or a termination of the Agreement prior thereto by Lessor or by Lessee, title to the Equipment Shelter shall revert to Lessor without further consideration. 9. The reference in the last sentence of Section 4(A) of the Agreement to "five (5) days"is amended to read `five (5) business days 10. The reference in the first sentence of Section 4(D) of the Agreement to "manufacturers or the Federal Communications Commission" is amended to read "manufacturers and the Federal Communications Commission DALLAS1356295.2 McKenna Park 161405A Location No.: 104679 It. The following shall be added to the end of the first paragraph of Section 4(D) of the Agreement: "Without limiting the foregoing, to the extent Lessee operates on frequencies in the 800 MHz band, and such operations cause interference to Lessor or other communications facilities on the Tower, Lessee shall immediately take the corrective measures required by FCC Rules 90.672 et seq. If said interference cannot be eliminated, then; upon Lessor's request, Lessee shall remove its equipment from Lessor's property at Lessee's cost and expense and this Agreement shall thereupon be terminated." 12. Except as hereby amended, all other provisions of the Agreement will remain in full force and effect as originally written and the Agreement is hereby confirmed as to all provisions contained therein. In the event of any conflict between the terms of this Amendment No. 1 and the terms of the Agreement, Amendment No. 1 shall control. [SIGNATURE PAGE TO FOLLOW] DALLAS\356295.2 McKenna Park 161405A Location No.: 104679 IN WITNESS WHEREOF, the parties hereto intend that this Amendment No. 1 shall be effective as the date of full execution of this Amendment No. 1 (the "Effective Date"). LESSOR: City of Denton By: Name: Title: Date: LESSEE: Dallas NITA, L.P. d/b/a Verizon fireless By: Verizon Wireless Texas, L ,its general partner By: l y ' Hans F. Leutenegger Area Vice President- Ngtwork, South Area Date: I '0 I - ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED A TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: /#Qh DALLASl356295.2 McKenna Park 161405A Location No.: 104679 STATE OF TEXAS COUNTY OF NOTARY ACKNOWLEDGEMENT fhe regoing instru ent N'as acknowledged before me this day of 200 by of the City of Denton. He is pe onally known to the or h produced a driver's lic se as identi cation. (AFFIX NOTARIAL SEAL) JENNIFER K. WALTERS Notary Public, State of Texas ; . i., My Commission Expires December 19, 2010 ~nnn My commission expires: STATE OF NORTH CAROLINA COUNTY OF MECKLENBURG TCIAI~I~IOTARY SIGNATURE) ARY BLIC - STATE OF TEXAS Wo. i ~s (PRINTED, TYPED OR STAMPED NAME OF NOTARY) The foregoing instrument was acknowledged before me this J-1 day of amia-J, 2008, by Hans F. Leutenegger, Area Vice President, Network, South Area of Verizon Wireless Texas, LLC, general partner of Dallas MTA, L.P. d/b/a Verizon Wireless, on behalf of said partnership. He is personally known to me. (AFFIX NOTARIAL SEAL) My commission expires: JEAN M. MUSA Notary Public, North Carolina Mecklenburg County My Commission Expires May 18. 2010 (OFFICIAL NC NOTARY PUB SIGNATURE) STATE OF NORTH CAROLINA (PRINTED, TYPED OR STAMPED NAME OF NOTARY) DALLAS1356295 2 McKenna Park 161405A Location No.: 104679 Exhibit A All that certain tract or parcel of land situated in the County of Denton. State of Texas. and beiitU a part of the Robert Bentnnont Survey and being more particular) described as follows: BEGINNING at the Southwest corner of the Robert Beaumont Survey at a point 131 IA vrs East of the Northwest corner of the Eugene Pucltalski Survey in the North boundary line of the same at a post and pile of rock in the West border of the Cross-Timbers and at a point known as Medlin's Point from which a P.Q. brs North 90 deg, East 5 vrs, another brs North 24 deg. East 8 vrs; THENCE Gast 302.3 vrs to a point for corner, said point being 20 feet East of the Southwest corner of a 15 acre tract deeded by R. H. Ewing and «-ife M. E. Ewing to D. L. Wilkins; T1-IENCE North and parallel with said D. L. Wilkins West boundary line 329'/, vrs to a point for corner. said point being 20 feet West of the Northwest corner of said Wilk-ins tract. THENCE West 302.3 vrs a point fir corner: THENCE South 325 vrs along the West boundary lint: of said Beaunrtont Survey to place of beginning and containing IS acres of land more or less and being the same tract of land conveyed to its by R. 1-1. Ewing and wile )/t. E. E%vin2 by deed dated November 27. A.D.. 1909, recorded in Volume I I) page 215, of the Deed Records of Denton County, Texas. z DALLAS\356295.2 McKenna Park 161405A Location No.: 104679 Exhibit B See attached microwave antenna specifications. DALLAS\356295.2 Product Specifications ANDREW A Co„ape Compony P6F-52-N7A 6 ft Standard Parabolic Unshielded Antenna, single-polarized, unpressurized, 5.25-5.85 GHz, type N female flange, gray antenna with flash, standard pack-one-piece reflector CHARACTERISTICS General Specifications Diameter, nominal 1.8 m 1 6 ft Antenna Input N Female Antenna Type PF - Standard Parabolic Unshielded Antenna, single-polarized, unpressurized Polarization Single Reflector Construction One-piece reflector Antenna Color Gray Flash Included Yes Packing Standard pack Electrical Specifications Operating Frequency Band 5.250 - 5.850 GHz Gain, Top Band 38.1 dBi Gain, Mid Band 37.6 dBi Gain, Low Band 37.0 dBi Front-to-Back Ratio 49 dB Cross Polarization Discrimination (XPD) 30 dB Beamwidth, Horizontal 1.8 ° Beamwidth, Vertical 1.8 e VSWR 1.50 Return Loss 14.0 dB Radiation Pattern Envelope Reference (RPE)4751 Electrical Compliance ETSI 302 217 Class 1 Mechanical Specifications Net Weight 82 kg 1 181 lb Packed Dimensions From North America, toll free Outside North Americo © 2008 CommScope, Inc. All nghis reserved Telephone 1-88001255-1479 Telephone , 1-708873•?307 All specifico6ons are subject to change Please see page I of 2 fo. 1.80&349-5444 ra.. -1-779-435.2579 w .andrev.com 6 the most current informoiion. 9/29/20088 Product Specifications ANDREW A Corm kcpe C=pony PbF-52-17A Gross Weight, Packed Antenna 192.0 kg 423.3 lb Length 213.0 cm 83.9 in Width 89.0 cm 35.0 in Height 208.0 cm 81.9 in * Footnotes Cross Polarization Discrimination (XPD) The difference between the peak of the co-polarized main beam and the maximum cross-polarized signal over an angle twice the 3 dB beamwidth of the co-polarized main beam. Front-to-Back Ratio Denotes highest radiation relative to the main beam, at 1800 t 400, across the band. Production antennas do not exceed rated values by more than 2 dB unless stated otherwise. Gain, Mid Band For a given frequency band, gain is primarily a function of antenna size. The gain of Andrew antennas is determined by either gain by comparison or by computer integration of the measured antenna patterns. Operating Frequency Band Bands correspond with CCIR recommendations or common allocations used throughout the world. Other ranges can be accommodated on special order. Packing Andrew standard packing is suitable for export. Antennas are shipped as standard in totally recyclable cardboard or wire-bound crates (dependent on product). For your convenience, Andrew offers heavy duty export packing options. Radiation Pattern Envelope Reference (RPE) Radiation patterns determine an antenna's ability to discriminate against unwanted signals under conditions of radio congestion. Radiation patterns are dependent on antenna series, size, and frequency. Return Loss The figure that indicates the proportion of radio waves incident upon the antenna that are rejected as a ratio of those that are accepted. VSWR Maximum; is the guaranteed Peak Voltage-Standing-Wave-Ratio within the operating band. From North America, toll free Outside North America C 2008 Commscope. Inc. All rights reserved. Telephone: 1.804255.1479 Telephone: +1.708-873.2307 All specifications are subject to change. Please see page 2 of 2 Fox: 1-8043445444 Fo,: -1-779-435-8579 -.ondrew com for the most current information. 9/29/2008