11-050 - RTOWN OF PROSPER, TEXAS
RESOLUTION NO. 11-50
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
PROSPER, TEXAS, HEREBY AUTHORIZING THE TOWN MANAGER
OF THE TOWN OF PROSPER, TEXAS, TO EXECUTE A CONTRACT
AGREEMENT WITH DALLAS MTA, L.P., VERIZON WIRELESS FOR A
TOWER SITE LEASE AGREEMENT.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF PROSPER, TEXAS:
SECTION 1: The Town Manager of the Town of Prosper, Texas, is hereby
authorized to execute, on behalf of the Town Council of the Town of Prosper, Texas, a
Tower Site Lease agreement with Dallas MTA, L.P., d/b/a Verizon Wireless, as hereto
attached.
SECTION 2: This Resolution shall take effect immediately upon its passage.
RESOLVED THIS THE 12th day of July, 2011.
Ray Smith, ayor
ATTEST TO:
Amy Piu ar
Town Secretary
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper Central WT
TOWER SITE LEASE AGREEMENT
THiS SITE LEASE AGREEMENT (this "Lease") is entered into this
day of , 20 ("Execution Date") between the Town of Prosper,
Texas, a Texas Municipal Corporation ("Landlord") and Dallas MTA, L.P., d/b/a
Verizon Wireless ("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 easements for access and utilities as well as a
temporary construction easement (collectively referred to as the "Easements"),
described and depicted in the site plan attached as Exhibit A (collectively
referred to hereinafter as the "Premises") including use of the portion of the
water tower (the "Tower") depicted thereon. Tenant acknowledges and agrees
that the Easements conveyed herein are non-exclusive and that the Landlord
may glrant rights to the Easements, provided such additional grants do not
materially interfere with Tenant's use of the Easements.
(b) The Premises, located on 0.984 acres in the Town of Prosper, the
County of Collin, the State of Texas, comprise approximately 700 square feet.
2. Term. The initial term of this Lease shall be five (5) years, commencing
on October 1, 2011 (the "Commencement Date") and terminating at Midnight on
the last day of the sixtieth (60th) full month following the Commencement Date.
Tenant may request, for Town Council approval, to renew this Lease for Two (2)
additional five (5) year Term(s) (the "Extension Term") upon the same terms
and conditions herein. 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 Lease shall terminate immediately with no
further notice and/or action of Landlord. Tenant shall only be able to use the
Premises in a manner consistent with the Governmental Approvals.
TOWER SITE LEASE AGREEMENT (Verizon l Page 1 of 16
5588Q2vt�
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b!a Verizon Wireless
Tenant Slte Name: Prosper Central WT
4. Rent. (a) Within thirty (30) days of the Commencement Date, Tenant
shall pay Landlord, as rent, the sum of Twenty -Eight Thousand Dollars and No
Cents ($28,000.00) per year for the Communication Facilities ("Rent") at
Landlord's address specified in Paragraph 14 below. For each subsequent year
of this Lease and during any Extension Term, the Rent shall be paid in advance
of the anniversary of the Commencement Date.
(b) 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.
(c) Within thirty (30) days of the Commencement Date, Tenant shall pay
Landlord a non-refundable fee of Five Thousand Dollars and No Cents
($5,000.00), representing the legal fees and expenses of Landlord in negotiating
and/or preparing the Lease.
(d) The Rent identified above is based upon the Communications Facilities
identified in and allowed by this Lease. In the event Tenant requests additional
Communications Facilities, and in its sole discretion Landlord approves the
request, the Rent shall be modified to reflect the additional Communications
Facilities.
5. 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 annual Rent.
6. Extended Term Rent. Upon the extension of this Lease as provided for
in Section 2, Rent shall increase by one hundred fifteen percent (115%) of the
Rent during the previous Term.
7. Radio Frequency Interference ("RFI"). (a) Tenant shall not use the
Premises in any way that cause RFI with the use of the Property by Landlord, or
existing tenants or licensees of Landlord, with rights to the Property prior in time
to Tenant's, including but not limited to the Landlord's Dispatch Center (subject to
Tenant's rights under this Lease, including non -RFI). In the event the Tenant's
equipment causes RFI, and after Landlord has notified Tenant of such RFI, the
Tenant will take all steps necessary to correct and eliminate the RFI within forty-
eight (48) hours. To the extent Tenant is unable to cure the RFI within this
timeframe, Tenant shall power down the equipment causing the RFI except for
intermittent testing until such time as the RFI is remedied; provided, however,
such intermittent testing may not unreasonably cause RFI with Landlord's, or
existing 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 RFI
within thirty (30) days of receiving notice from the Landlord as set forth above,
Tenant shall remove the equipment which caused the RFI, or at its option,
terminate this Lease.
TOWER SITE LEASE AGREEMENT Verizon Page 2 of 16
558842.0
Location of Site -
Name of Tenant- Dallas MTA, L.P., dibla Verizon Wireless
Tenant Site Name: Prosper -Central -WT
(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 RFI, and after
Tenant has notified Landlord of such RFI, Landlord or any other existing tenant
(as previously identified) will take all steps necessary to correct and eliminate the
RFI within forty-eight (48) hours. To the extent Landlord or Landlord's other
existing tenant is unable to cure the RFI within this timeframe, Landlord or any
other tenant shall power down the equipment causing the RFI except for
intermittent testing until such time as the RFI is remedied; provided, however,
such intermittent testing may not unreasonably interfere with Tenant's use of the
Property. If Landlord, or any other existing tenant described above, is unable to
cure the RFI 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 RFI, 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 RFI.
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, including approval
from the Town Planning and Zoning Commission, which approval shall not be
unreasonably withheld, conditioned 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
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 may not add any additional equipment beyond that identified in
the Communication Facilities without the prior written consent of the Landlord.
Tenant may not erect more than 9 antenna's pursuant to this Lease.
TOWER SITE LEASE AGREEMENT (Verizon) Page 3 of 16
558842.vl
Location of Site -
Name of Tenant- Dallas MTA, L.P., AM Verizon Wireless
Tenant Site Name: Prosper -Central -WT
(c) 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.
(d) 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.
(e) As partial consideration for rent paid under this Lease, Landlord hereby
grants Tenant the Easements for ingress, egress and access (including access
as described in Paragraph 1) to the Premises as well as a temporary
construction easement. Upon notice, Landlord shall have the right to relocate the
Easements with prior written notice to a location reasonably acceptable 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.
(f) 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.
(g) In the event that Tenant requires access to Premises and Landlord
deems Landlord's personnel's presence is required for said access then Tenant
will reimburse Landlord at a rate of $100/hour per required person. This rate will
include % hour call -out time for Landlord's personnel to arrive at Premises plus
TOWER SITE LEASE AGREEMENT Varizon Page 4 of 16
558842.0
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper—Central—WT
time on site plus %2 hour return time from Premises for Landlord's personnel's
return to normal duty area.
(h) Prior to Tenant or any contractor, subcontractor, or other
representative of Tenant accessing the Communication Facilities for (i) the initial
construction and installation of Tenant's equipment, or (ii) any work done by
Tenant that requires access to the Tower structure, such person must first
provide prior written notice of Tenant's intent to access the Communication
Facilities, including the date and time of such intended access, and produce
photo -identification to the Town's police department prior to accessing the
Communication Facilities.
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.
Failure to comply with the terms and conditions of this Lease within
the Cure Period.
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 Term
year as defined by this Lease.
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 Verizon Page 5 of 16
558842A
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name, Prosper -Central -WT
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. The Parties will arrange corresponding waivers on
respective property insurance policies. Tenant agrees that at its own cost and
expense, it 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 "A-" or better.
13. Hold Harmless/Release. EXCEPT TO THE EXTENT CAUSED
BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LANDLORD ET
AL, 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
TOWER SITE LEASE AGREEMENT erizon
558842A Page 6 of 16
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper -Central -WT
LIABILITY OF THE LANDLORD (HEREINAFTER "CLAIMS"). TENANT IS
EXPRESSLY REQUIRED TO DEFEND LANDLORD AGAINST ALL SUCH CLAIMS.
TENANT SHALL SELECT COUNSEL REASONABLY ACCEPTABLE TO
LANDLORD IN FULFILLING ITS OBLIGATION HEREUNDER TO DEFEND AND
INDEMNIFY LANDLORD. LANDLORD MAY ELECT TO CHOOSE ITS OWN
COUNSEL BUT SHALL DO SO AT ITS OWN EXPENSE, 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 THIRTY
(30) 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 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 IN CONNECTION WITH THE
RETENTION OF SUCH COUNSEL.
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: Town Manager
121 W. Broadway
P,O. Box 307
TOWER SITE LEASE AGREEMENT (Verizon) Page 7 of 16
558&12.vi
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/bla Verizon Wireless
Tenant Site Name: Prosper Centrat_wr
Prosper, Texas 75078
With copy to: Abernathy, Roeder, Boyd & Joplin, PC
Attn: Courtney A. Kuykendall
1700 Redbud, Suite 300
McKinney, TX 75069-1210
If to Tenant, to: Dallas MTA, L.P.
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
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) 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
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, TO THE EXTENT 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, TO THE EXTENT SUCH ENVIRONMENTAL CONDITIONS
ARE CAUSED BY THE TENANT.
TOWER SITE LEASE AGREEMENT Verizon Page 8 of 16
558842A
Location of Site-_ _
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper—Central—WT
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. Taxes. Tenant shall have the responsibility to pay any personal
property, real estate taxes, assessments, or charges owed on the Property which
Landlord demonstrates is the result of Tenant's use of the Premises and/or the
installation, maintenance, and operation of the Tenant's improvements, and any
sales tax imposed on the rent (except to the extent that Tenant is or may become
exempt from the payment of sales tax in the jurisdiction in which the Property is
located), including any increase in real estate taxes at the Property which
Landlord demonstrates arises from the Tenant's improvements and/or Tenant's
use of the Premises. Notwithstanding the foregoing, Tenant shall not have the
obligation to pay any tax, assessment, or charge that Tenant is disputing in good
faith in appropriate proceedings prior to a final determination that such tax is
properly assessed provided that no lien attaches to the Property. Tenant shall
have the right, at its sole option and at its sole cost and expense, to appeal,
challenge or seek modification of any tax assessment or billing for which Tenant
is wholly or partly responsible for payment.
20. Casualty. In the event of damage by fire or other casualty to the
Tower or Premises that cannot reasonably be expected to be repaired within
forty-five (45) days following same or, if the Property is damaged by fire or other
casualty so that such damage may reasonably be expected to disrupt Tenant's
operations at the Premises for more than forty-five (45) days, then Tenant may,
at any time following such fire or other casualty, provided Landlord has not
completed the restoration required to permit Tenant to resume its operation at
the Premises, terminate this Lease upon fifteen (15) days prior written notice to
Landlord. Any such notice of termination shall cause this Lease to expire with
the same force and effect as though the date set forth in such notice were the
TOWER SITE LEASE AGREEMENT {Verizon] Page 9 of 16
558842A
Location of Site -
Name of Tenant- Dallas MTA, L.P., dlbla Verizon Wireless
Tenant Site Name: Prosper—Central—WT
date originally set as the expiration date of this Lease and the Parties shall make
an appropriate adjustment, as of such termination date, with respect to payments
due to the other under this Lease. Notwithstanding the foregoing, the rent shall
abate during the period of repair following such fire or other casualty in proportion
to the degree to which Tenant's use of the Premises is impaired.
21. Condemnation. In the event of any condemnation of all or any portion
of the Property, this Lease shall terminate as to the part so taken as of the date
the condemning authority takes title or possession, whichever occurs first. If as a
result of a partial condemnation of the Premises or Tower, Tenant, in Tenant's
sole discretion, is unable to use the Premises for the purposes intended
hereunder, or if such condemnation may reasonably be expected to disrupt
Tenant's operations at the Premises for more than forty-five (45) days, Tenant
may, at Tenant's option, to be exercised in writing within fifteen (15) days after
Landlord shall have given Tenant written notice of such taking (or in the absence
of such notice, within fifteen (16) days after the condemning authority shall have
taken possession) terminate this Lease as of the date the condemning authority
takes such possession. Tenant may on its own behalf make a claim in any
condemnation proceeding involving the Premises for losses related to the
equipment, conduits, fixtures, its relocation costs and its damages and losses
(but not for the loss of its leasehold interest). Any such notice of termination shall
cause this Lease to expire with the same force and effect as though the date set
forth in such notice were the date originally set as the expiration date of this
Lease and the Parties shall make an appropriate adjustment as of such
termination date with respect to payments due to the other under this Lease. If
Tenant does not terminate this Lease in accordance with the foregoing, this
Lease shall remain in full force and effect as to the portion of the Premises
remaining, except that the rent shall be reduced in the same proportion as the
rentable area of the Premises taken bears to the total rentable area of the
Premises, through written agreement of the Parties. In the event that this Lease
is not terminated by reason of such condemnation, Landlord shall promptly repair
any damage to the Premises caused by such condemning authority.
22. 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.
c. This Lease shall be construed in accordance with the laws of the
State of Texas. Exclusive venue shall be in Collin County, Texas.
TOWER SITE LEASE AGREEMENT(Verizon) Page 10 of 16
558842.0
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name., Prosper_Central_wT
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. 10-010, 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.
I. 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.
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.
TOWER SITE LEASE AGREEMENT (Verizon) Page 11 of 16
558642,v9
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper -Central -WT
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.
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. 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.
r. Landlord agrees to execute a Memorandum of this Lease which
Tenant may record with the appropriate recording officer. The
Memorandum of Lease shall be in the form attached hereto as Exhibit C.
The date set forth in the Memorandum of Lease is for recording purposes
only and bears no reference to commencement of either the Term or rent
payments.
TOWER SITE LEASE AGREEMENT (Verizon) Page 12 of 16
55&8422
Location of Site- _
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper—Central—WT
IN WITNESS WHEREOF, said parties have caused this Lease to be duly
executed as of the date first above written.
LANDLORD: TOW F PROSPER
By:
Mite Land, Town Manager
TENANT: DALLAS MTA, L.P.
dba VERIZON WIRELESS
By: Verizon Wireless Texas, LLC, its general
partner
Hans F. Leutenegger
Area Vice President Network
TOWER SITE LEASE AGREEMENT &erizonp Page 93 of 98
558842A
Location of Site -
Name of Tenant- Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper Central WT
EXHIBIT "A"
Description and Depiction of Property
and Site Pian
U�- pages attached]
TOWER SITE LEASE AGREEMENT 'Verizon Page 14 of 16
558842.v1
NIIPIVIBIN�pIN�lGdp�yq
SPECIAL WARRANTY DEED
Effective Date: JVK 2p 3200,7
Grantor: 183 Land Corporation, Inc.
Grantor's Mailing Address
(including county):
I Cowboys Parkway
Irving, Texas 75063
Dallas County
Grantee: Town of Prosper
Grantee's Mailing Address
(including county):
P.O. Box 307
Prosper, Texas 75078
Collin County
Consideration:
ExHooly %kA "
12!28:43 PM o1 1/8
For and in consideration of the sum of TEN AND N0/100 DOLLARS ($10,00) and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged.
Property:
BEING all more particularly described in Exhibit A attached hereto and made a part
hereof for all purposes.
Reservations from and Exceptions to Conveyance and Warranty:
This deed is executed and delivered subject to all matters of record but only to the extent
such exceptions are valid and existing as of the date hereof, and standby fees, taxes and
assessments by any taxing authority for the year of 2006, and subsequent years.
Grantor, for the consideration and subject to the reservations from and exceptions to conveyance
and warranty, grants, sells, and conveys to Grantee the property, together with all and singular
the rights and appurtenances thereto in any wise belonging, to have and hold it to Grantee,
Grantee's heirs, executors, administrators, successors, or assigns forever. Grantor binds Grantor
and Grantor's heirs, executors, administrators, and successors to warrant and forever defend all
and singular the property to Grantee and Grantee's heirs, executors, administrators, successors,
and assigns against every person whomsoever lawfully claiming or to claim the same or any part
' KENT BFTWEEN PROSPER AND 104 PROS —Page I of 3
4Q2061.►2
`s
thereof, except as to the reservations from and exceptions to conveyance and warranty, by,
through, or under Grantor but not otherwise,
183 LAND
Name:
Title;
ACKNOWLEDGMENT
THE STATE OF TEXAS
COUNTY OF COLLIIN
BEFORE M i the undersigned authority, on this day personally appeared
,known to ><ne to be the persons whose names are subscribed to the
foregol g instrument; he acknowledges to me he is the duly authorized representative for the 183
Land Corportation, Inc, and he executed said instrument for the purposes and considerations
therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this C Mday of
2001.
Notary Public in and for the State of Texas
My Commission Expires:
tiSfi`pJy VVii1� W'. IoFV�
-4— t4olary pU1b110 stats of Texas
} 'D My commisilon explroa
SopleMbel 19, 2008
ENT B WEEN PR SPGR AND IAI PRC}5P_ R IJT;1) -- Page 2 of 3
4020G].v2
Exhibit A
AGREEMENT B RET WEEN PROSPER ANN SPROSPER, LTD — Page 3 of 3
402061,v2
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EXHIBIT"B"
Depiction/Description of
Communication Facilities
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TOWER SITE LEASE AGREEMENT Nerizon
558842A Page 15 of 16
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Location of Site -
Name of Tenant Dallas MTA, L.P., d/b/a Verizon Wireless
Tenant Site Name: Prosper Central WT
EXHIBIT "C"
Form of Memorandum of Lease
[_ pages attached]
TOWER SITE LEASE AGREEMENT (Verizon) Page 16 of 16
558842.0
Prosper Central WT
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
STATE OF TEXAS
COUNTY OF COLLIN
MEMORANDUM OF WATER TOWER LEASE AGRE MENT
This Memorandum of Tower Site Lease Agreement is made this day of ,
2011, between the Town of Prosper, Texas, with a mailing address o€121 W. Broadway, P.O. Box 307, Prosper, TX
75078, hereinafter referred to as "Landlord", and Dallas MTA, L.P. d/b/a Verizon Wireless, with its principal offices
located at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920, and with notices to be sent to
Dallas MTA, L.P. d/b/a Verizon Wireless, 180 Washington Valley Road, Bedminster, New Jersey 07921, Attention:
Network ileal Estate, hereinafter referred to as "Tenant". Landlord and Tenant are at titres collectively referred to
hereinafter as the "Parties" or individually as the "Party".
1. Landlordd Tenant entered into a Tower Site Lease Agreement (the "Agreement") an
�og=a' .5 , 2011 for an initial term of five (5) years, commencing on the
Commencement Date. The Agreement shall automatically be extended for two (2) additional five (5) year
terms unless the Tenant terminates it at the end of the then current term by giving the Landlord written
notice of the intent to terminate at least ninety (90) days prior to the end of the then current term.
2. 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 easements for
access and utilities as well as a temporary construction easement (collectively referred to as the
"Easements"), described and depicted in the site plan attached as Exhibit A (collectively referred to
hereinafter as the "Premises") including use of the portion of the water tower (the "Tower") depicted
thereon. Tenant acknowledges and agrees that the Easements conveyed herein are non-exclusive and that
the Landlord may grant rights to the Easements, provided such additional grants do not substantially
materially interfere with Tenant's use of the Easements. The Premises, located on 0.984 acres in the Town
of Prosper, the County of Collin, the State of Texas, comprise approximately 700 square feet.
3. The Agreement shall be effective as of the date of execution by both Parties, provided, however, the initial
term shall be for five (5) years and shall commence on the Commencement Date (as hereinafter defined) at
which time rental payments shall commence. The Agreement shall commence on the first day of October,
2011 (the "Commencement Date").
4. The terms, covenants and provisions of the Agreement, the terms of which are hereby incorporated by
reference into this Memorandum, shall extend to and be binding upon the respective executors,
administrators, heirs, successors and assigns of Landlord and Tenant.
[SIGNATURE PAGE TO FOLLOW]
Prosper Cenrrai_WT
IN WITNESS WHEREOF, hereunto and to a duplicate hereof, Landlord and Tenant have caused
this Memorandum to be duly executed on the date first written hereinabove.
LANDLORD: The Town of P er, Texas
By:
Mike Land
Town Man ger
Date: /
TENANT: Dallas MTA, L.P. dl a Verizon Wireless
By: Verizon WirAleV Texag) LYU, its general partner
By:
Hans F. Leutenegger
Area Vice President Network
Date: 101 -3 1 I..JI.J
Fa
NOTARY ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF COLLIN
Prosper Centrai_'W'T
The foregoing instrument was acknowledged before me this 1 144 -day of 4 o -5:L 201
by Mike Land, Town Manager of the Town of Prosper, Texas. He is personally known to me or has
produced a driver's license as identification.
(AFFIX NOTARIAL SEAL) 1
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�,.*.....�,, MELANIEY.
S VIDEAN (OFFICIAL NOTARY A )
".•' "y
Notary Publiublic, State of Texas
My Commission Expires NOTARY PUBLIC —STATE OF TEXAS
Jur* 27, ao�a
My commission expires:•
(PRINTED, TYPED OR STAMPED NAME OF NOTARY)
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
The foregoing instrument was acknowledged before me this t4day of 0Q4Cb. , 2011 ,
by Hans F. Leutenegger, Area Vice President Network, 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)
SUSAN E LONG
Notary Public (OFFICIAL NOT.
Gaston County, NC NOTAYL PUB
MY Commission Expires August 28, 2016
AIGATURE)
STAIM OF NORTH CAROLINA
My commission expires: ao M W. L -0, f ---,
(PRINTED, TYPED OR STAMPE AME OF NOTARY)
Exhibit "A"
See attached
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