Ord 05-2009 1/6/2009 r a
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ORDINANCE NO. OC
ORDINANCE CLOSING, ABANDONING, AND VACATING A ONE
BLOCK PORTION OF AVE I RUNNING WEST TO EAST, BETWEEN
MONROE STREET AND TAFT STREET AND A ONE BLOCK PORTION
OF TAFT STREET RUNNING SOUTH TO NORTH, BETWEEN AVENUE
I AND AVENUE H STREET CONTAINING APPROXIMATELY 19,200
SQUARE FEET AS INDICATED ON THE ATTACHED PROPOSED
STREET CLOSURE MAP. FINDING AND DETERMINING THAT THE
MEETING AT WHICH THIS ORDINANCE WAS PASSED WAS OPEN TO
THE PUBLIC AS REQUIRED BY LAW.
WHEREAS, Wichita Falls Independent School District has requested to close,
abandon, and vacate a portion of Avenue I and a portion of Taft Street; locations as
indicated on the attached Proposed Street Closure Map; and
WHEREAS, all affected utility companies and City departments have reviewed
this request and have recommended approval and/or conditional approval of these
closures; and
WHEREAS, The City Council of Wichita Falls, Texas deems it advisable and in
the best public interest to close, vacate, and abandon that portion of the street as herein
indicated on the attached Proposed Street Closure Map: and
WHEREAS, it has been determined that in lieu of monetary payment, the real
property will be swapped for tower lease space, with the difference in value being paid
to the City of Wichtia Falls by the WFISD.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
SECTION 1. That the approximately 19,024 combined square foot of
Avenue I and Taft Streets located indicated on the attached Proposed Street Closure
Map, an addition to the City of Wichita Falls, is hereby closed, abandoned and vacated.
Said streets are shown as indicated on the attached indicated on the attached Proposed
Street Closure Map and incorporated in this ordinance.
SECTION 2. That in consideration of the receipt of $1,634.00 for the difference in
value of the properties, this ordinance shall authorize the City Manager to execute a
quitclaim deed for the City's interest in the properties and execute a tower lease
agreement for two sites. The deed shall be executed conditioned upon the WFISD filing
an approved re-plat of the properties to be vacated in the records of the Wichita County
Clerk. This filing shall occur within ninety days of the date of approval of this ordinance.
This ordinance shall be void and have no effect if said re-plat is not approved and filed
within the stipulated time period.
SECTION 3. It is hereby officially found and determined that the meeting at
which this ordinance was passed was open to the public as required by law.
PASSED AND APPROVED this the 6 day of January, 2009.
MAYOR
ATTEST:
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CITY OF WICHITA FALLS, PLANNWG DIVIS�ON - MAP PROOUCT
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TOWER LEASE AGREEMENT
THIS TOWER LEASE AGREEMENT ("Lease") is made and entered into this day
of , 2009, between the City of Wichita Falls, a Texas municipal corporation
("City"), and the Wichita Falls Independent School District (WFISD).
RECITALS
A. WFISD currently owns certain land and structures (collectively, the "Sites") located at 2149
Avenue H(known as "Wichita Falls High School") and (known as Memorial
Stadium) in Wichita Falls Wichita County Texas.
B. The City desires to obtain the right from WFISD to use a portion of the Sites for the purposes of
placing, operating and maintaining on the Sites, City's telecommunications equipment. WFISD is
willing to grant such a right to City for such purpose subject to the terms and conditions set forth
herein.
C. The City has previously closed and abandoned a portion of Bell Street for the exclusive use of
WFISD. WFISD has agreed to pay the City $11,520 for this transaction.
D. The WFISD desires the City to close and abandon portions of Taft Street (estimated 9,520 square
feet) and Avenue I(estimated 9,504 square feet). The estimated cost of abandonment and
closure of these streets is $11,414.40.
E. The City obtained from the WFISD an easement on Gregg Road, the total value of which is
$3,300.
F. The total value of all street closure, abandonments and easement dedications discussed in C
through E above results in a credit to the City of $19,634.40.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and payment of rent by City and
keeping and performance of the covenants and agreements by City under this Lease,
WFISD and City hereby agree as follows:
1. BASIC LEASE INFORMATION
a. Terms. In addition to the terms that are defined elsewhere in this Lease, the following terms
are used in this Lease:
i. Equipment. All the equipment and personal property listed below, together with any other
equipment placed on the Sites by City in accordance with Artic�e 4 hereof:
• 48 Mbps Airmux backhaul (ODU) with 3' jumper to 2' 4.9 GHz dish on tower
• 48 Mbps Airmux backhauls (IDU) in 19" rack in Building
• outdoor Cat 5 to 4.9GHz (ODU) Estimated length 225' on Tower
. 1 5/8" coax for 900 MHz Omni antenna & LMR 400 for the GPS antenna. Estimated
length 250' on Tower
. 19 b' Equipment rack in building
• Wave Entry point boot 4" entry hole with appropriate Ice bridge onto Building
. AP radios installed in 19" Rack located in Buiiding
b. Commencement Date.
c. Term. Ten (10) years beginning on the Commencement Date.
d. Annual Rent. $ 900 per year, per Site. The City will make no payments for the first ten (10)
years in exchange for $18,000 of the credit discussed in the "Recitals," section F. Thereafter,
the City will pay the WFISD $900 per year, per Site for each remaining renewal term (Article
2, Section b).
2. AGREEMENT AND USE
a. Lease. WFISD hereby leases the Sites to City, for the placement, operation and maintenance
of the Equipment and for no other purpose.
b. Term. The Term of the Lease shall begin on the Commencement Date and shall run for ten
(10) years and will automatically renew for ten (10) year terms. After the initial ten (10) year
term, either party may terminate the contract by giving one hundred twenty (120) days written
notice to the other party.
c. Use. City shall use the Sites only for the purpose of placing, maintaining, and operating its
Equipment and uses directly incidental thereto. City will not use the Sites for any purpose
prohibited by applicable law. City will not commit waste and will not create any nuisance or
interfere with, annoy or disturb any other City of the Sites. It is further understood and agreed
that City's right to use the Sites is contingent upon its obtaining and continually maintaining in
full force and effect, after the execution date of this Lease, all the certificates, permits, and
other approvals that may be required by any federal, state, or local authorities. WFISD, at no
cost to itself, shall cooperate with City in its efforts to obtain such approvals. In the event that
any of such applications should be finally rejected or any certificate, permit, license, or
approval issued to City is canceled, expires, lapses, or is otherwise withdrawn or terminated
by governmental authority so that City will be unable to use the Sites for its intended
purposes, this Lease shall automatically terminate.
d. Nonexclusive. City acknowledges and agrees that WFISD, at its sole discretion, has the right
to grant other licenses, leases or rights of use, of any kind or nature, to parties other than City
with respect to the Sites, provided that any such uses entered into following the date of this
Lease shall not unreasonably interfere with City's operation of its Equipment.
3. RENT
a. Annual Rent. City will pay Annual Rent to WFISD as rent for the Sites. Annual Rent will be
paid in advance, to WFISD, 1104 Broad Street, Wichita Falls, TX 76307-7533 Attention:
Tower Lease, or to such other person, firm or place as WFISD may, from time to time,
designate in writing, on or before the first day of each calendar year during the Term of this
Lease, without notice or demand, and without deduction or offset. If the Term commences on
a day other than the first day of a calendar year or ends on a day other than the last day of a
calendar year, the Annual Rent for said partial year shall be prorated based on the actual
number of days in that year. City shall deliver to WFISD upon execution of this Lease the
Annual Rent for the first year of the Lease. Rent paid in advance shall be prorated to the
date of termination and the unused portion of any prepaid rent shall be returned to City.
b. Utilities. WFISD shall provide electricity and other utilities to the Sites.
c. Limitation on Liabilitv. Both Parties shall indemnify and hold the other party, its agents and
employees, free of and harmless from and against any and all claims, liabilities, costs, fees,
suits, damages or expenses that may result directly or indirectly from this lease contract.
d. Taxes or Assessments. WFISD shall pay additional taxes or assessments, if any, which may
be levied or charged to WFISD as a result of City's use or occupancy of the Sites, including
but not limited to, assessments upon or measured by Rent, including without limitation, any
gross revenue tax, excise tax, or value added tax levied by the federal government or any
other governmental body with respect to the receipt of Rent.
4. ALTERATIONS; OPERATION OF EQUIPMENT
a. City's Facilities.
i. City will install and operate City's Equipment in compliance with WFISD's technical
standards, rules and regulations (collectively, "Rules and Regulations").
ii. City may add new equipment to the Sites, provided that City obtain WFISD's prior written
approval of any such additional equipment, which approval may be withheld in WFISD's
sole discretion. In the event equipment is added, WFISD and City shall enter into a
modification of this Lease.
iii. WFISD's approval of any placement or specifications shall not be construed to be a
warranty or representation that such plans or specifications are in conformity with any
Laws or ordinances.
b. O�eration of City's Facilities.
i. City shall be responsible, at its sole cost, for the placement, installation, maintenance and
replacement of its Equipment.
ii. City shall protect the Sites from fire and report and suppress such fires as might occur.
iii. City shall cease operation temporarily or reduce power if required by WFISD to conduct
tests, perform work, or make emergency repairs. Such occasions, in so far as
practicable, shall be preceded by notice and shall occur at times mutually agreeable to
WFISD and City.
c. Modification of Facilitv. If WFISD, must add, change or improve its facilities at the Sites, and
would, by reason of these additions, changes or improvements, either need the Sites or need
City to change its Equipment in order to prevent any interference with WFISD's facilities,
WFISD shall give City 180 days' written notice of such need, and City will have the
responsibility to modify, change or correct its Equipment at its sole cost so no interference to
WFISD's operation shall exist or to agree to relocate the Sites to another location at the Sites.
If City is unwilling to assume the expense of such removal, modification, change or
correction, this Lease shall terminate immediately upon written notice by City to WFISD. Rent
paid in advance shall be prorated to the date of termination and the unused portion of any
prepaid rent shall be returned to City.
5. MAINTENANCE
WFISD will maintain, repair and restore the Sites in reasonably good order and condition.
6. COMPLIANCE WITH LAWS
City shall comply with all federal, state statutes, laws, rules and regulations of any public authority
affecting the Sites and the Equipment and the use thereon, including, but not limited to, the U.S.
Department of Labor, Occupational Safety and Health Administration, the Federal
Communications Commission ("FCC") and the Federal Aviation Administration (collectively, the
"Laws").
7. GENERAL
a. Casualtv. If the Sites necessary for City's occupancy is damaged during the Term of this
Lease by any casualty which is insurable under standard fire and extended coverage
insurance policies, WFISD may, in its sole discretion, repair or rebuild the Sites to
substantially the condition in which the Sites were immediately prior to such destruction.
WFISD shall provide written notice to City, within 30 days from the date of such casualty,
detailing whether or not WFISD will rebuild or repair the Leased Premise. If WFISD repairs or
rebuilds the Sites, Rent will be abated proportionately during any period in which there is
substantial interference with the operation of City's business. Notwithstanding the foregoing,
if the Sites are damaged to the extent that it would take, in WFISD's reasonable judgment,
more than 90 days to repair, then City may terminate this Lease upon notice to WFISD. If
WFISD elects not repair or rebuild the Sites, then this Lease will terminate upon notice to City
of WFISD's election.
b. Effect of Sale. Any transfer or transfers of title or conveyances of Sites shall not disturb City's
rights under this Lease so long as City is not in default under this Lease.
c. Inspection. WFISD reserves the right to enter, at any time, the Sites to inspect the same.
d. Quiet EnLvment. WFISD covenants and agrees with City that so long as City pays rent and
observes and performs all the terms, covenants, and conditions of this Lease, City may
peaceably and quietly enjoy the Sites, and City's possession will not be disturbed by anyone
claiming by, through, or under WFISD.
e. No Waiver. The waiver by either party of any agreement, condition, or provision contained in
this Lease will not be deemed to be a waiver of any subsequent breach of the same or any
other agreement, condition, or provision contained in this Lease.
f. Notices. All notices and other communications required or permitted under this Agreement
shall be in writing and shall be given: (a) by United States first class mail, postage prepaid,
registered or certified, return receipt requested, (b) by hand delivery (including by means of a
professional messenger service), or (c) by a nationally recognized overnight delivery service
that routinely issues receipts.
g. Entire Aqreement. This Lease embodies the entire agreement between the parties hereto
relative to the subject matter hereof. No amendment, alteration, modification of, or addition to
the Lease will be valid or binding unless expressed in writing and signed by WFISD and City.
h. Severabilitv. If any provision of this Lease proves to be illegal, invalid or unenforceable, the
remainder of this Lease will not be affected by such finding, and in lieu of each provision of
this Lease that is illegal, invalid or unenforceable, a provision will be added as a part of this
Lease as similar in terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
i. Ca tions. The captions of the various Articles and Sections of this Lease are for convenience
only and do not necessarily define, limit, describe or construe the contents of such Articles or
Sections.
j. Governing Law. This Lease will be governed by the internal laws of the state of Texas,
without reference to its conflict of laws provisions.
k. Force Maieure. Notwithstanding any provision of this Agreement to the contrary, neither City
nor WFISD shall have any liability to the other for a failure of performance resulting from any
cause beyond its control.
EXECUTED as of the day and year first above written.
City of Wichita Falls, Texas
By:
Darron J. Leiker, City Manager
ATTEST:
City Clerk
WFISD
By:
Title: