HomeMy WebLinkAboutContract 34340 (2) CITY SECRETARY
CONTRACT NO.
SECOND AMENDMENT TO ROOFTOP SPACE LICENSE
THIS SECOND AMENDMENT TO ROOFTOP SPACE LICENSE(this"Second
Amendment") is entered into effective as of November 1,2006 by and between the City of
Fort Worth ("Licensee") and Behringer Harvard Burnett Plaza LP, a, a Texas limited
partnership, ("Licensor").
RECITALS
A. Burnett Plaza Associates, a Texas joint venture ("Original Licensor") and
Licensee entered into that certain Rooftop Space License For Antenna And Radio
Communication Equipment dated March 31, 1992, ( as amended by First Amendment to
Rooftop Space License dated as of September 17, 2002, the "License") for use of the
Equipment Space(as defined therein)on the roof of the building known as Burnett Plaza and
located at 801 Cherry Street, Ft. Worth, Texas(the"Building").
B. All of Original Licensor's right, title and interest in the License has been
assigned to Licensor.
C. Licensor and Licensee desire to extend the Term of the License,modify the
Base License Fee payable under the License,and otherwise amend the License as set forth in
this Second Amendment.
Accordingly, for good and valuable consideration which the parties acknowledge
receiving, Licensor and Licensee agree as follows:
AGREEMENT
1. Recitals. The above Recitals are incorporated into this Second
Amendment.
2. Application of License Terms. Capitalized terms used in this Second
Amendment and not defined herein shall have the meanings ascribed to them in the License.
3. Extension of Term. The Term is extended from the period beginning on
October 31, 2007 through the period ending on September 30, 2012, unless sooner
terminated or extended by written agreement of the parties(the"Second Extension Term").
All references in the License to the expirations of the Term or the expiration date of the
License shall be deemed to refer to the Second Extension Term ending on September 30,
2012. Licensee shall have one option to extend the Term for a five(5)year period beyond
the above expiration date,which option may be exercised only by providing written notice of
same to Licensor on or before September 30,2011. The Base License Fee for such five year
extension period shall be at the then prevailing rate for equipment space on the roof of the
Building.
4. License of Additional Antenna Mounts. Effective November 1, 2006,
Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor under the
terms of this License, a license for four (4) additional Antenna Mounts (the "Additional
Antenna Mounts") in the locations set forth on Exhibit A attached to this Second
Amendment. Licensee shall license the Additional Antenna Mounts from November 1,2006
through the Second Extension Term. Section 1 of the License is amended to provide that
from and after November 1, 2006,the term"Antenna Mounts,"wherever it appears in the
License, shall include not only the eleven (11) existing Antenna Mounts, but also the
Additional Antenna Mounts(for a total of fifteen(15)Antenna Mounts under the License),
and the Additional Antenna Mounts shall,from that date,be subject to all of the applicable
terms and conditions of the License, as modified hereby. Licensee accepts the Additional
Antenna Mounts in their then-existing condition as of the date Licensee takes possession of
same.
5. Base License Fee for Equipment Space. Effective November 1,2006 and
continuing through the Second Extension Term, Licensee shall pay the Base License Fee for
the Equipment Space pursuant to the schedule attached to this Second Amendment as
Exhibit B. Asset forth in Exhibit B,starting on October 1,2007,the Base License Fee shall
be increased by two percent(2%)per annum. Section 2 of the License is hereby amended to
delete all references to the Base License Fee being increased by 3% per annum. From
November 1, 2006 through the Second Extension Term, Licensee shall continue to pay
Utility Costs. Licensee shall pay all Base License Fees and Utility Costs at the times and
place, and in the manner, provided in the License.
6. Right of First Refusal for Antenna Mounts.
a) "Offered Locations" shall mean any one or more of the nine (9)
antenna mount locations depicted on Exhibit A attached hereto,which are the subject of a
Proposed License.
b) Provided that as of the date of the giving of an Offer Notice,Licensee
is not in default under this License and Licensee is using all of the Equipment Space, if at
any time during the Term any license or use agreement for any of the Offered Locations shall
expire and if Licensor intends to enter into a license or use agreement for such Offered
Locations with anyone(a"Proposed Licensee")other than the then current user such space
(or its affiliates) Licensor shall first offer to Licensee the right to include the Offered
Locations within the Equipment Space under the License upon all of the applicable terms
and conditions of this License, including the Base License Fee payable hereunder.
c) Such offer shall be made by Licensor to Licensee in a written notice
("Offer Notice")which offer shall designate the space being offered. Licensee may accept
the offer set forth in the Offer Notice by delivering to Licensor an unconditional acceptance
(hereinafter called"Licensee's Notice")of all of the terms and provisions of the Offer Notice
within five(5)business days after delivery of the Offer Notice to Licensee. Time shall be of
the essence with respect to the giving of Licensee's Notice. If Licensee does not accept(or
CITY'�^�f��������G\7�f
fails to timely accept) an Offer Notice, Licensor shall be under no further obligation with
respect to such Offered Locations by reason of this Exhibit.
d) Licensee must accept all Offered Locations offered by Licensor at any
one time if it desires to accept any of such Offered Locations and may not exercise its right
with respect to only a portion of such Offered Locations. If Licensee declines any Offered
Locations offered by Licensor in an Offer Notice, Licensee shall be deemed to have
irrevocably waived all further rights under this Exhibit as to such Offered Locations, and
Licensor shall be free to license the Offered Locations to the Proposed Licensee or any other
person including on terms which may be less favorable to Licensor than those set forth in the
Proposed License.
e) If Licensee timely delivers Licensee's Notice accepting all provisions
of the Offer Notice,the parties shall promptly thereafter execute and deliver an amendment
to this License adding the Offered Locations as a part of the Equipment Space under all of
the then-applicable terms and provisions of this License, including without limitation the
then-applicable Base License Fee set forth in the schedule attached as Exhibit B.
fl The rights set forth in this Section 6 are personal to Licensee and may
not be assigned,transferred or delegated in whole or part without the prior written consent of
Licensor,and any attempted assignment in violation hereof shall be null and void and of no
effect.
7. Improvements and Equipment. In connection with the Additional
Antenna Mounts and any antenna mounts added to this License under the Right of First
Refusal set forth above,Licensee shall,at its sole cost, a)install and operate any Equipment
in compliance with the terms and provisions of the License applicable thereto, and b)
construct any improvements pursuant to plans and specifications, and using contractors,
approved in advance by Licensor,and otherwise in accordance with the terms and provisions
of the License applicable thereto.
8. Termination Right. Licensee's right to terminate this License pursuant to
Section 13 of the License shall continue during the Second Extension Term.
9. Counterpart Execution. This Second Amendment may be executed in
multiple counterparts, each of which shall be fully effective as an original,which together
shall constitute only one(1) instrument.
10. Licensor's Address. Licensor's address for notice as set forth in Section 10
of the License is hereby modified to read in its entirety:
10,
'CITY MCMi'kPy
FT. `- Tw, Va.
Behringer Harvard Burnett Plaza LP
15601 Dallas Parkway, Suite 600
Addison, Texas 75001
Attention: Ms.Ann Withington
Facsimile: (214) 655-1610
with copy to: Brandywine Realty Trust
801 Cherry Street, Suite 2355
Fort Worth, Texas 76102
Attention: Property Manager
Facsimile: (817) 332-6571
11. No Default. Licensee acknowledges that as of the date hereof,Licensor has
performed all of its obligations under the License, Licensor is not in default under the
License, and Licensee has no claims, counterclaims, set-offs or defenses against Licensor
arising out of the License or relating thereto.
12. Limitation of Liability. Any liability of Licensor to Licensee(or any person
or entity claiming by, through or under Licensee) for any default by Licensor under the
License or any matter relating to the Equipment Space or the Equipment shall be limited to
Licensor's interest in the Building.
13. Miscellaneous. Unless amended herein, all other provisions of the License
shall continue in full force and effect and are in all respects ratified and confirmed hereby,
provided, however, that nothing in this Second Amendment shall be deemed a waiver or
release of any unperformed obligations of Licensee under the License.
Executed to be effective as of the date first written above.
LICENSOR:
BEHRINGER HARVARD BURNETT PLAZA LP,A
TEXAS LIMITED PARTNERSHIP
By: HPT Management Services LP,
a Texas 1'mited partnership, its property manager
By:
Name: / i 4' WV A£.doll/
Title: IllC£ �a57
LICENSEE:
CITY OF FORT WORTH
B
Name: n A)�-6meu
Title:
ATTEST:
City Secretary
Approved as to rm and Legality:
City Attorney
Date: I ( (Z( (y�Q
tvl FC 6�q��
NBZ�r A
Burnett Plaza Antenna Mounts (UPPER GRID)
,20
11 _
3-3 38J If I
low
Ak-
(ori5t►IaA 11) 13 }4 _ is 19 20
3,-�b! 3�) 37 -.02i { /1 .22
(L} i-tiortal�. I
23 24 26 2 29 0 31
< o
s3 30' '58 39 0 41 42
�►�
A. -
E3
#I r
• , "5 45 A7 48 - 49 50 51 5� 53 �<
C1 vim--
EXHIBIT B
City of Fort Worth
Burnett Plaza - Antenna Information
#of $/ Monthly Monthly Monthly
#of Antenna Antenna Antenna Equip Room Total Total
Term Months Mounts Mount Rent Rent Rent Rent
11/1/06-9/30/07 11 15 642.60 9,636.00 5,610.00 15,246.00 167,706.00
10/1/07-9/30/08 12 15 655.45 9,831.78 5,722.20 15,553.98 186.647.76
10/1/08-9/30/09 12 15 668.56 10,028.42 5,836.64 15,865.06 190,380.72
10/1/09-9/30/10 12 15 681.93 10,228.98 5,953.38 16,182.36 194,188.33
10/1/10-9/30/11 12 15 695.57 10,433.56 6,072.44 16,506.01 198,072.10
10/1/11 -9/30/12 12 15 709.48 10,642.23 6,193.89 16,836.13 202,033.54
71 1,139,028.44
Era
c tr1 Wil
vu.i, �
City of Fort Worth, Texas
"a. or and Council Communication
DATE REFERENCE NUMBER LOG NAME PAGE
11/04/97 **G-12047 I 04RAD1 1 of 1
SUBJECT AMENDMENT OF M&C C-13208 AND AUTHORIZATION FOR EXPENDITURE OF
FUNDS UNDER CITY'S LEASE WITH BURNETT PLAZA ASSOCIATES FOR ROOFTOP
ANTENNA AND FLOOR SPACE ON BURNETT PLAZA
RECOMMENDATION:
It is recommended that the City Council:
1. Amend M & C C-13208, dated January 14, 1992, to authorize execution of a lease agreement
with Burnett Plaza Associates for rooftop antenna and floor space on Burnett Plaza with an initial
term of ten (10) years, expiring October 31, 2002, with the right to renew for two (2) consecutive
terms of five (5) years each, as provided in City Secretary Contract ("CSC") No. 19032; and
2. Approve expenditures in accordance with CSC No. 19032 for an amount not to exceed
147,600.00 per year, to be adjusted for any increases in the CPI, as provided by CSC No.
19032.
DISCUSSION:
M&C C-13208, dated January 14, 1992, authorized the City Manager to execute a five year lease
agreement with Burnett Plaza Associates for floor space and antenna requirements for the City's
Trunked Radio Systems. However, CSC No. 19032 ("Lease"), the lease that was negotiated with
Burnett Plaza Associates, provided for an initial term of ten (10) years, expiring October 31, 2002, with
the right to renew for two (2) consecutive terms of five (5) years each. The Lease also contains a
funding-out clause which allows the City to terminate the Lease in the event that funds are not
appropriated for payments in future years. Because this site is the prime site for the City's Trunked
Radio Systems for the provision of radio coverage to Public Safety and Local Government users of the
City of Fort Worth and client partners, staff recommends a continuation of the arrangement with Burnett
Plaza Associates as provided in the Lease. In addition to annual rent, utility costs are estimated to be
$15,000 per year.
FISCAL INFORMATION/CERTIFICATION:
The Director of Fiscal Services certifies that funds are available in the current operating budget, as
appropriated, of the Information Systems Fund.
CB:f
Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY
Office by: (to)
Charles Boswell 8511
Originating Department Head:
Michael DiPaolo 8499 (from)
Additional Information Contact:
Michael DiPaolo 9499