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HomeMy WebLinkAboutResolution - 6323 - Agreement - Alamosa PCS, LLC - Lease, 74Th & Genoa - 05_27_1999Resolution No. 6323 May 27, 1999 Item No. 24 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement between the City of Lubbock and Alamosa P.C.S., L.L.C. of Lubbock, Texas to lease City property located at 74"' Street and Genoa, and any other related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 27th day of May _ 199 . SI T N, VAYOR ATTEST: yth' arise 1, City ecretary APPROVED AS TO CONTENT: T Ellerb ok Managing Director Water Utilities APPROVED AS TO FORM: M. Knight Assistant City Attorney cp Ccdocs/Alamosa-74.Res May 4, 1999 Resolution No. 6323 May 27, 1999 STATE OF TEXAS § Item No. 24 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § LEASE AGREEMENT THIS AGREEMENT entered into by the City of Lubbock (referred to herein as City), a Home Rule Municipality of Lubbock County, Texas, and Alamosa PCS, L.L.C. (referred to herein as Lessee). WITNESSETH: WHEREAS, City owns, controls and operates two parcels of land (hereinafter referred to as the "Land") and owns and operates water towers (hereinafter referred to as the "Tower") located thereon in the City of Lubbock, County of Lubbock, State of Texas, (hereinafter the Tower and Land are collectively referred to as the "Property"); and WHEREAS, Lessee desires to lease the said Property for the purpose of providing telecommunication services within the City of Lubbock, Texas. NOW THEREFORE, for and in consideration of the mutual promises, covenants, terms and conditions, both general and special, as hereinafter set forth, City hereby grants to Lessee the 1 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa rights and privileges hereinafter described; Lessee agrees to accept the duties, responsibilities and obligations as hereinafter set forth; and the parties hereto, for themselves, their successors and assigns, agree as follows: ARTICLE ONE LEASE OF DESCRIBED PREMISES City, upon mutual execution of this agreement, does lease and demise to Lessee, upon the terms and conditions contained herein, the following Property: Real property and space on a water tower situated thereon and located at the intersection of 74' Street and Genoa Street, Lubbock, Texas. Said Property being more particularly described and illustrated in Exhibit "A", which is attached hereto and made a part hereof for all purposes. ARTICLE TWO TERM The term of this lease shall be for five (5) years and shall begin on the 27th day of Kay , 1999, and terminate on the 26thday of May , 2004. Upon written application of Lessee, delivered to the office of the Managing Director Water Utilities of City prior to the expiration of the initial term of this lease, the Managing Director Water Utilities may extend this lease for a period of five (5) years upon the same terms 2 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa and conditions contained herein, provided, however, that the annual rent shall increase on the first day of the renewal term by twenty percent (20%) of the annualized annual rent in effect immediately proceeding the increase. Any extension of this lease granted pursuant to this Article shall be in writing and signed by the Lessee and the Managing Director Water Utilities. Said approval of such extension shall not be unreasonably withheld, delayed or conditioned. ARTICLE THREE USE OF PROPERTY The Lessee is granted for the stated term and for no other purpose a non-exclusive privilege of installing, maintaining, repairing, replacing, removing and operating radio and related communications facilities, including utility lines, transmission lines, and equipment shelter or cabinet, electronic equipment, radio transmitting and receiving antennas and supporting structures in connection with the provision of telecommunications services (hereinafter collectively referred to as "Lessee Facilities"). ARTICLE FOUR RENTALS, RECORDS, AUDIT AND PLACE OF PAYMENT A. RENTAL The Lessee shall pay to the City as rental the total of Seven Thousand Five Hundred and No/100 ($7,500.00) annually during the term of this Agreement that Lessee conducts business 3 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa operations on the Property. The said rental is payable in the amount of Six Hundred Twenty Five and No/100 Dollars ($625.00) for each month during the term thereof. B. PAYMENT All payments that become due and payable by the Lessee under this Agreement shall be made to the City at the Office of the Managing Director Water Utilities, Lubbock, Texas. Lessee shall pay City a late payment charge of five percent (5%) of the total amount of rentals payable if payment of such rentals is not made when due. ARTICLE FIVE OBLIGATIONS OF THE CITY A. CLEAR TITLE The City covenants and agrees that upon execution of this lease City is well seized of the leased Property and has good title, free and clear of all liens and encumbrances having priority over this lease; and that the City has full right and authority to lease the Property described in this agreement. B. CONDITIONS AND MAINTENANCE OF PROPERTY The City shall assume responsibility for the condition of the leased Property and shall assume responsibility for maintenance, upkeep or repairs necessary to keep the Property in a safe and serviceable condition. 4 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa ARTICLE SIX OBLIGATION OF LESSEE A. LESSEE'S AUTHORITY City warrants that it has full authority to enter into and perform this Agreement. B. NET LEASE This lease shall be without cost to the City for the installation, maintenance and removal of Lessee's Facilities. It shall be the sole responsibility of the Lessee to keep, maintain, repair and operate the entirety of the demised Lessee Equipment, and all improvements and facilities placed on the leased premises shall be at Lessee's sole cost and expense. C. MAINTENANCE The Lessee shall, at its own expense, provide maintenance for all its Lessee Facilities. D. PROPERTY PERMANENTLY AFFIXED TO PROPERTY Any property belonging to Lessee which becomes permanently attached to the leased premises shall become the property of the City upon termination of this agreement, whether upon expiration of the initial term, any extension thereof, or earlier under any provision of this lease. Title to Lessee Facilities shall remain with Lessee as same shall not be deemed fixtures but rather personal property of Lessee. To the fullest extent permitted by law, City does hereby waive any and all liens and security interest, in and to Lessee Facilities, inclusive of landlord's and utility lien, whether arising under statute, common law, contract or otherwise, located in, upon or about the Property. Lessee or the holders of purchase money security interests in and to Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa Lessee Facilities, shall be granted access to the Property for removal at any time during the term or subsequent to the expiration of this Lease Agreement for the removal of same without the need for recourse to legal proceedings. E. UTILITIES Lessee shall draw electricity by submeter and other utilities from the existing utilities on the Property or obtain, at its sole cost and expense, separate utility service from any utility company that will provide service to the Property. Any easement necessary for such power or other utilities will be at a location acceptable to City and the servicing utility company. Lessee shall have the right to install an emergency gasoline, butane, diesel or other fuel - powered generator(s) on the Property, at Lessee's sole costs and expense, and Lessee covenants that such installation and use shall be in compliance with any applicable federal, state or local environmental, health, fire, community awareness, safety laws or other applicable laws or regulations, now or hereafter enacted or promulgated by any governmental authority or court ruling having jurisdiction over the Property, including, without limitation, any applicable guidelines promulgated by the Environmental Protection Agency, and Lessee agrees that it will reimburse City for any increase in City's insurance premiums directly attributable to any such installation or use by Lessee. The Lessee shall assume and pay for all costs or charges for metered utility services provided to Lessee during the initial term hereof, and any subsequent extension. 6 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa Following the initial installation of the Lessee Facilities, Lessee agrees not to install any equipment on the Property or change, the frequency, power, or type of its existing equipment on the Property without first submitting to City a written proposal regarding the proposed configuration and obtaining the written consent of City, which consent shall not be unreasonably withheld, delayed or conditioned if (i) the proposed installation or changed, altered, or improved frequency, power or type of equipment is a use that does not require additional Property space beyond the existing Property space or impose any increased stresses or loads on the Property in excess of applicable engineering standards; (ii) said installation or - changed, altered, or improved frequency, power, or type of equipment is authorized by law and is to be made or installed in accordance with good engineering practices; and (iii) the proposed configuration does not interfere with the transmitters, receivers and equipment of other subtenants or licensees existing on the Property or on the Property at the date when City receives the aforementioned written proposal. F. CONSTRUCTION PROPERTY None of the Lessee Facilities shall be installed on the Tower nor shall any construction pertaining to the Lessee Facilities continence until Lessee has submitted its construction and installation plans and list of contractors and subcontractors to City in writing and such plans and list have been approved in writing by City, such approval not to be reasonably withheld, conditioned or delayed. Lessee shall not alter any plans so approved without following the same procedures. Lessee shall be responsible for grounding all external and internal wiring and 7 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa cabling installed by Lessee. Lessee shall obtain City's prior written approval of such grounding plans. In the event any such plans are not approved or rejected within thirty (30) days of submittal, same shall be deemed approved. G. PERFORMANCE TESTS At City's request, Lessee shall perform an intermodulation and interference study at the Property and evaluate for interference with its operations of other existing wireless communications users at the Property. Lessee acknowledges that the disclosed uses and frequencies, as presently identified on Exhibit C annexed hereto, do not, if properly and lawfully operated, interfere with Lessee's use of the Property, and that Lessee's use of the PROPERTY will not interfere with such disclosed uses and frequencies. Lessee further agrees that if Lessee's Facilities cause any measurable adverse interference with the operations of existing wireless communications users at the Property, Lessee shall cause the elimination of such interference in a prompt and timely manner. If such measurable adverse interference by Lessee's Facilities with existing communications equipment cannot be eliminated within reasonable length of time, but not to exceed forty-eight (48) hours after notice thereof of material interference and thirty (30) days if otherwise measurably adverse, Lessee shall cause the interference to cease except for brief tests necessary for the elimination of the interference. City shall not knowingly permit the installation or operation of other improvements, inclusive of telecommunications equipment upon the Property which interferes with the Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa operation and use of Lessee Facilities. City shall cause any agreement for future use of the Property by subsequent users to contain interference language substantially similar to that contained in this Section G. Lessee, Lessee's employees, agents and subcontractors are hereby granted the right of ingress and egress to and from, on or across the Land twenty-four (24) hours a day, seven (7) days a week, at no charge, to obtain entry into the Property for the purpose of constructing, installing, operating, maintaining and repairing those parts of the Lessee Facilities as are ground -based. Such access shall be as shown on Exhibit "B". Lessee shall not, without at least twenty-four (24) hours prior notice to City, perform or arrange to be performed normally scheduled installation, maintenance or repair of the Lessee Facilities on the Tower. Any emergency installation, maintenance or repair of the Lessee Facilities on the Tower shall be performed only with prior oral or written approval from City. H. CODE COMPLIANCE Lessee agrees that all Lessee Facilities constructed pursuant to the terms of this Agreement shall be designed, constructed and maintained in compliance with the Buildings and Buildings Regulations and Zoning ordinances of the City of Lubbock, Texas. I. REPAIRS Lessee shall perform all repairs necessary or appropriate to keep Lessee Facilities on or about the Property or located on any appurtenant rights -of -way or access to the Property in good and tenantable condition. 9 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa Damage resulting from the acts or omissions of Lessee shall be repaired by Lessee, at Lessee's cost and expense unless otherwise provided herein. J. GOVERNMENTAL REGULATION Lessee shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the Federal Communications Commission ("FCC"), Lessee shall pay for the reasonable costs and expenses therefor (including for any lighting automated alarm system). K. LIGHTING If lighting requirements apply and a lighting automatic system has been installed by City, City shall allow Lessee to bridge -in to the system to permit a parallel alarm or to install a second alarm if a bridge would interfere with City's alarm. Notwithstanding anything to the contrary in this Paragraph, the responsibility for compliance with FAA and FCC requirements shall remain with Lessee as provided. L. SURRENDER AND REMOVAL OF LESSEE'S FACILITIES At the expiration or termination of this Agreement for any reason, Lessee shall surrender to City the Property, remove the Lessee Facilities, and shall restore the Property to substantially the same condition existing on the Commencement Date, except for ordinary wear and tear. Lessee Facilities left on the Property after thirty (30) days from the expiration or termination of the Agreement shall be deemed abandoned and shall be subject to disconnection, removal and disposal by City. In such event, Lessee shall pay to City upon written demand to Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa therefor, the disconnection, removal and storage expenses incurred by or on behalf of City. If the Lessee Facilities are not claimed by Lessee within thirty (30) days following notice from City to Lessee of its removal of such Property shall be deemed abandoned and will become the Property of the City, City shall have the right to sell all or any portion of the Lessee Facilities without any liability to Lessee to account for the proceeds of such sale, subject to prior and existing purchase money security interests in and to Lessee Facilities. In the event the Lessee Facilities remain on the Property following termination or expiration of this Agreement (even if it has been disconnected), Lessee shall pay to City holdover rent equal to one hundred twenty five percent (125 %) of the then effective monthly rent, prorated from the date of termination to the date the Lessee Facilities are removed from the Property by Lessee. M. PAYMENT OF TAXES, FEES The Lessee shall pay all federal, state and local government taxes, license fees and occupation taxes levied on either the leased premises or on the business conducted on the leased premises or on any of Lessee's property used in connection therewith. The Lessee shall render for taxation purposes all automobiles and other property used in connection with Lessee's business operations, and all such property shall have its situs and domicile in Lubbock, Lubbock County, Texas. Taxation may be subject to legal protest in accordance with the provisions of the taxing authority whose levy is questioned. Any protest is at the sole expense of Lessee. Delinquency in 11 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa payment of such obligations after any protest has been settled shall, at the option of the City, be cause for immediate termination of this lease. N. REGULATIONS The Lessee's officers, agents, employees and servants will obey all rules and regulations which may be promulgated by the City or its authorized agents, or by other lawful authority, to ensure the safe and orderly conduct of City's and Lessee's operations on the Premises. O. PROHIBITION OF SUBLEASES AND ASSIGNMENTS Except as to parent, subsidiary or any affiliate, the Lessee will not directly or indirectly assign, sublet, sell, hypothecate or otherwise transfer this lease or any portion of the leased premises without the prior written consent of City's Managing Director Water Utilities, such consent not to be unreasonably withheld, delayed or conditioned. P. INDEMNIFICATION AND INSURANCE The City, its officers, agents and employees shall stand indemnified by the Lessee as provided by this agreement. The Lessee shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts and omissions, and the City shall in no way be responsible therefor. In the exercise of the obligations and in the enjoyment of the privileges granted by this agreement, the Lessee shall indemnify and save harmless the City, its officers, agents and employees from any and all losses that result from any fault or negligence on the part of the Lessee, its agents, employees or invitees, and shall indemnify the City, its officers, 12 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'h/Genoa agents, and employees against any and all claims, demands, suits, Judgments and losses whatsoever, except to the extent such losses, claims, demands or liability are attributable to or caused by the negligence or willful misconduct of City, its officers, agents and employees. The Lessee shall maintain insurance at all times that this lease is in effect, at Lessee's sole expense and with an underwriter authorized to do business in the State of Texas and acceptable to the City, against claims of general liability, automobile liability and worker's compensation resulting from Lessee's business activities on the Premises. General Liability and Auto Liability Insurance - The amount of insurance coverage shall not be less than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) for Combined Single Limit General Liability Insurance; or less than THREE HUNDRED THOUSAND AND N0/100 DOLLARS ($300,000.00) for Combined Single Limit Auto Liability Insurance. Worker's Compensation and Employers Liability Insurance - Insurance coverage as required by State statute covering all employees whether employed by the Lessee or any subcontractor on the job with at least FIVE HUNDRED THOUSAND AND N0/100 DOLLARS ($500,000.00) Employer Liability Coverage. The above mentioned policies shall all include a waiver of subrogation. Certificates of insurance shall be filed with the City's Managing Director Water Utilities prior to entry upon the premises by the Lessee. The General Liability and Auto Liability policies shall name the City as an additional insured, require the insurer to notify the Managing Director Water Utilities of any 13 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74°i/Genoa alteration, renewal or cancellation, and remain in full force and effect until at least ten (10) days after such notice of alteration, renewal or cancellation is received by the Managing Director Water Utilities. ARTICLE SEVEN TERMINATION, CANCELLATION A. TERMINATION This lease shall terminate at the end of the full term hereof and Lessee shall have no further right or interest in any of the premises or improvements hereby demised. B. CANCELLATION Either party shall be in default under this Agreement if the party fails to perform any material duty or obligations under this Agreement and does not cure or remedy such failure to perform within thirty (30) days after receipt of written notice with respect thereto, provided, however, that if such failure to perform shall necessitate longer to cure than thirty (30) days, then such cure period shall be extended for such time as is reasonably necessary to cure such failure to perform, but only so long as such efforts to cure are commenced within fifteen (15) days after receipt of written notice from the other party and thereafter proceed diligently and in good faith. Notwithstanding the foregoing, in no event shall the time within which a party may cure a failure in the payment of money exceed a single, ten (10) day period, without extension. 14 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74`h/Genoa Upon the occurrence of a default, the non -defaulting party may pursue any and all remedies available under applicable law and any one or more of the following remedies, separately or concurrently or in any combination, without further notice or demand whatsoever: (i) Termination of this Agreement by giving the defaulting party written notice of such termination, in which event this Agreement shall be terminated at the time designated in the notice; or (ii) The recovery from the defaulting party of all costs and expenses incurred by the non -defaulting party in enforcing its rights and remedies under this Agreement, including reasonable attorneys' fees and expenses. No termination hereof shall release Lessee from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or such later date when the improvements placed on the leased Property by Lessee are removed and said Property is restored to its original condition as hereinabove required. It is agreed that failure to declare this lease terminated upon the default of Lessee for any of the reasons set forth above shall not be construed as a waiver of any of the City's rights hereunder or otherwise bar or preclude City from declaring this lease cancelled as a result of any subsequent violation of any of the terms or conditions of this lease. Lessee shall have the right, within one hundred twenty (120) days from full execution of this Lease Agreement, to terminate this Lease Agreement upon thirty (30) days prior written 15 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa notice to City, in the event Lessee is not satisfied with the results of title, environmental, technological or engineering testing or if all required governmental approvals are not obtained within such time period. Lessee shall have the right to terminate this Lease Agreement at any time upon one (1) year prior written notice to City without further obligation hereunder. ARTICLE EIGHT GENERAL A. CLEANLINESS OF PREMISES Lessee shall, at its sole expense, dispose of all trash, garbage, and other refuse resulting from its business operations authorized by this Agreement. B. RIGHT OF INSPECTION The City reserves the right to conduct inspections of the leased premises at reasonable times to ensure that fire and safety and other provisions contained in this lease are being adhered to by the Lessee. C. TERMINATION OF LEASE, SURRENDER OF LEASED PREMISES AND OWNERSHIP OF IMPROVEMENTS The Lessee covenants and agrees that at the expiration of the initial term of this lease, or any extension which has been granted, or upon earlier termination as provided elsewhere in this agreement, Lessee will quit and surrender the leased premises in good state and condition, 16 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74"/Genoa reasonable wear and tear expected, and the City shall have the right to take possession of the leased premises with or without process of law. D. HEADINGS The paragraph headings contained herein are for convenience in reference and are not intended to define, extend or limit the scope of any provisions in this agreement. E. NOTICES A. General. Whenever notice from Lessee to City or City to Lessee is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery), or (3) by deposition the written notice in the United States mail, property addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Lessee's Address. Lessee's address and numbers for the purposes of notice are: Alamosa PCS, L.L.C. Attn: Real Estate Manager 4747 South Loop 289 Lubbock, Texas 79702 With a copy to: Steven A. Portnoy Attorney at Law 14800 Quorum Drive, Suite 200 Dallas, Texas 75240 17 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa C. City's Address. The City's Address and numbers for the purposes of notice are: City of Lubbock Attn: Terry Ellerbrook P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2585 Facsimile: (806) 775-3027 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 15' day after such notice is effective. F. ENTIRE AGREEMENT This lease constitutes the entire agreement between the City and Lessee, and any other written or parole agreement with the City is expressly waived by Lessee. G. QUIET ENJOYMENT City does hereby represent, covenant and warrant that Lessee, upon paying rent and observing and performing all the terms, covenants and conditions on Lessee's part to be observed and performed, shall peaceably and quietly enjoy the Property. H. GOVERNANCE This Lease Agreement shall be construed under and governed by and in accordance with the laws of the State of Texas. 18 Lease Agreement City of Lubbock/Alamosa PCS, L.L.C. 74'/Genoa EXECUTED this 27th day of May , 1999. CHIEF OPERATING OFFICER Date: 2 (4 � � � A EST: Ka i D. Darnell, City Secretary APPROVED AS TO CONTENT: -Terry Ellerbreok Managing Director Water Utilities APPROVED AS TO FORM: P M. Knight Assistant City Attorney JMK:cp Cityatt/John/74-GenoaLease.Agreement May 13, 1999 19 Lease Agreement City of Lubbock/Alamosa PC5, L.L.C. 74'/Genoa