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HomeMy WebLinkAboutResolution - 2009-R0146 - Lease Agreement - Sprint Property Services - 04_09_2009Resolution No. 2009-RO146 April 9, 2009 Item. No. 5.41 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock hereby authorizes and directs the Mayor of the City of Lubbock to execute two (2) Lease Agreements and any associated documents by and between the City of Lubbock and Sprint Property Services for placement of telecommunications equipment upon two City water towers, one at 501h Avenue and Joliet Avenue and one at 741h and Genoa Avenue, which Lease Agreements are attached hereto and made a part of this Resolution for all intents and purposes. Passed by the City Council this 9th day of April '2009. TOM MARTIN, MAYOR ATTEST: Rebec a Garza, City Secretary APPROVED AS TO CONTENT: W lities Engineer - II APPROVED AS TO FORM: Do Vandiver, City Attorney �. DDres/Sprint-W atTwoLeasesNRes March 5, 2009 Resolutiou No. 2009—RO146 THE STATE OF TEXAS § COUNTY OF LUBBOCK KNOW ALL MEN BY THESE PRESENTS: LEASE AGREEMENT THIS LEASE AGREEMENT "Lease" entered into by the City of Lubbock (referred to herein as City), a Home Rule Municipality of Lubbock County, Texas, and Alamosa Properties, L.P. (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 Property for the purpose of providing telecommunication services in and around 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 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 Lease, does and demise to Lessee, upon the terms and conditions contained herein, the following Property: DA04AL027-A Real property and space on a water tower situated thereon and located at the intersection of 50"' Street and Joliet Avenue, Lubbock, Texas. The Property being more particularly described and illustrated in Exhibit "A", which is attached hereto and made a part hereof for all purposes. ARTICLE TWO The term of this Lease shall be for five (5) years and shall begin on the 27th day of May, 2009, and terminate at 11:59 pm on the 26th day of May, 2014. Upon written notification 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 and conditions herein, provided, however, that the annual payment shall increase on the first day of the renewal term by twenty percent (20%) of the annualized annual payment 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 of non-exclusive privilege of installing, maintaining, repairing, replacing, modifying, 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 2 DA04AL027-A 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 Twenty-five Thousand and No/100 Dollars ($25,000.00) annually during the initial term of this Agreement that Lessee conducts business operations on the Property. The rental is payable in equal monthly amounts due not later than 10 days after the first day of each month during the term of this Lease and any extensions thereof. B. PAYMENT All payments that become due and payable by the Lessee under this Lease shall be made to the City at the Office of the Chief Water Utilities Engineer, 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 after 10 days 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. B. CONDITIONS AND MAINTENANCE OF PROPERTY 3 DA04AL027-A The City shall assume responsibility for the condition of the Lease Property and shall assume responsibility for maintenance, upkeep or repairs necessary to keep the Property in a safe and serviceable condition. ARTICLE SIX OBLIGATION OF LESSEE A. LESSEE'S AUTHORITY Lessee warrants that it has full authority to enter into and perform this Lease. 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 Lessee Facilities, and all improvements and facilities placed on the Property by Lessee shall be at Lessee's sole cost and expense. C. MAINTENANCE The Lessee shall, at its own expense, provide maintenance for all Lessee Facilities. D. PROPERTY PERMANENTLY AFFIXED TO PROPERTY Any property belonging to Lessee which becomes permanently attached to the Property shall become the property of the City upon termination of this Lease, whether upon expiration of the initial term, any extension thereof, or earlier under any provision of this Lease. Title to Lessee Facilities shall remain exclusively 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 4 DA04AL027-A security interests in and to 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 for the removal of same without the need for recourse to legal proceedings. E. UTILITIES Lessee shall draw electricity by sub -meter 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 reasonably acceptable to City and .the servicing utility company. Lessee shall have the right to install an emergency gasoline, butane, diesel, propane 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. Following the initial installation of the Lessee Facilities, Lessee agrees not to install any equipment on the Property or materially 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 5 DA04AL027-A 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 Omitted G. PERFORMANCE TESTS At City's written request, Lessee shall perform an intermodulation and interference study at the Property and evaluate for interference with its operations of other wireless communications users at the Property existing as of the beginning of the term of this Lease. Lessee further agrees that if Lessee's Facilities cause any measurable adverse interference with the operations of wireless communications users at the Property existing as of the beginning of the term of this Lease, Lessee shall cause the elimination of such interference in a prompt and timely manner. If such measurable adverse interference by Lessee's Facilities with communications equipment cannot be eliminated within reasonable length of time, but not to exceed forty-eight (48) hours after Lessee's receipt of written 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. 6 DA04AL027-A City shall not knowingly permit the installation or operation of other improvements, inclusive of telecommunications equipment upon the Property which interferes with the operation and use of Lessee Facilities. City shall cause any agreement for future use of the Property by subsequent users to contain interference language identical 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, repairing and removing 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 Lease 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. 7 DA04AL027-A 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 therefore (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 earlier termination of this Lease for any reason, Lessee shall surrender to City the Property, removed the Lessee Facilities, and shall restore the Property to substantially the same condition existing on the Commencement Date, except for ordinary wear and tear and damage resulting from a casualty or third parties 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 therefore, the reasonable, actual and documented 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 Lessee's receipt 8 DA04AL027-A of written notice from City to Lessee of its removal of such, Lessee's Facilities 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 Lease (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 Property or on the business conducted on the Property or on any of Lessee's Facilities 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 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 Property. 9 DA04AL027-A 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 Property 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 Lease. 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 therefore. In the exercise of the obligations and in the enjoyment of the privileges granted by this Lease, 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, 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 ,employees and contractors. 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 with an A.M. Best rating of not less than A-, VII., 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 10 DA04AL027-A Combined Single Limit General Liability Insurance; or less than THREE HUNDRED THOUSAND AND NO/100 (($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 NO/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 Property 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 cancellation, and remain in full force and effect until at least ten (10) days after such notice of cancellation is received by the Managing Director Water Utilities. ARTICLE SEVEN TERMINATION, CANCELLATION A. TERMINATION Subject to the terms of Article Two hereof 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 Property or improvements hereby demised. B. CANCELLATION Either party shall be in default under this Lease if the party fails to perform any material duty or obligations under this Lease 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 11 DA04AL027-A 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 parry may cure a failure in the payment of money exceed a single, ten (10) day period, without extension. Upon the occurrence of a default, the non -defaulting party may pursue any and all remedies available under applicable law or in equity 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 Lease by giving the defaulting party written notice of such termination, in which event this Lease 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 Lease, 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 Property by Lessee are removed and the Property is restored to the 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 12 DA04AL027-A 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, to terminate this Lease without further liability or obligation upon thirty (30) days prior written 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 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 Lease. B. RIGHT OF INSPECTION The City reserves the right to conduct inspections of the Leased premises at reasonable times and after delivering prior written notice to Lessee specifying the date and time of the inspection so Lessee may have a representative on the Property if Lessee so chooses 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 PROPERTY AND OWNERSHIP OF IMPROVEMENTS The Lessee covenants and agrees that at the expiration of the initial term of this Lease, or 13 DA04AL027-A any extension which has been granted, or upon earlier termination as provided elsewhere in this Lease, Lessee will quit and surrender the Property in the state and condition required in Article Six L. hereof and the City shall have the right to take possession of Property in accordance with 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 Lease. E. NOTICES A. General. Whenever notice from Lessee to City or City to Lessee is required or permitted by this Contract and no other Ynethod 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, properly 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 upon either receipt of refusal of delivery. B. Lessee's Address. Lessee's address and numbers for the purposes of notice are: Sprint Property Services Site ID: DAO4AL027 Mail Stop: KSOP4T0101-Z2650 6391 Sprint Parkway Overland Park, KS 66251-2650 With a c6py to Sprint Nextel Law Department Mailstop KSOPHTO 10 1 -Z2020 6391 Sprint Parkway Overland Park, KS 66251-2020 Attn: Real Estate Attorney 14 DA04AL027-A C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Chief Water Utilities Engineer P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2343 Facsimile: (806) 775-3344 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 15t' 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 or Lessee is expressly waived. 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. EXECUTED this 1st day of .Tune , 2009. 15 DA04AL027-A The City of Lubbock: BY:f TOM MARTIN, MAYOR ATTEST: Re ec Garza, City Secretary APPROVED AS TO CONTENT: Wood FfankliA Chief at tilities Engineer DD/con/WatTowerLeas eAgr50th--Alamosa March 17, 2009 Alamosa Properties, L.P., Lessee: bywe I 1111a I a owmew' Title: Site Development Manager 16 DA04AL027-A No Text 50TH STREET t FA%ANT v* o VALVE RNA JVLIE �DRAIRAGE 11 O VALVE �� • ' ,,!'� .:; :, �- 0 M 0 Resolutiou No. 2009 RO146 fATIOK wj_ Q OM CONTROL LAS R o-R\ -�-� GATE ALLEY Is 0 Resolution No. 2009-RO146 THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § LEASE AGREEMENT THIS LEASE AGREEMENT "Lease" entered into by the City of Lubbock (referred to herein as City), a Home Rule Municipality of Lubbock County, Texas, and Alamosa Properties, L.P. (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 Property for the purpose of providing telecommunication services in and around 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 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 Lease, does and demise to Lessee, upon the terms and conditions contained herein, the following Property: DA04AL023-A Real property and space on a water tower situated thereon and located at the intersection of 74 h Street and Genoa Avenue, Lubbock, Texas. The 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 May, 2009, and terminate at 11:59 pm on the 26th day of May, 2014. Upon written notification 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 and conditions herein, provided, however, that the annual payment shall increase on the first day of the renewal term by twenty percent (20%) of the annualized annual payment 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 of non-exclusive privilege of installing, maintaining, repairing, replacing, modifying, 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 2 DA04AL023-A 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 VENEFSTRI-V41" The Lessee shall pay to the City as rental the total of Twenty-five Thousand and No/l 00 Dollars ($25,000.00) annually during the initial term of this Agreement that Lessee conducts business operations on the Property. The rental is payable in equal monthly amounts due not later than 10 days after the first day of each month during the term of this Lease and any extensions thereof. B. PAYMENT All payments that become due and payable by the Lessee under this Lease shall be made to the City at the Office of the Chief Water Utilities Engineer, 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 after 10 days 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. B. CONDITIONS AND MAINTENANCE OF PROPERTY 3 DA04AL023-A The City shall assume responsibility for the condition of the Lease Property and shall assume responsibility for maintenance, upkeep or repairs necessary to keep the Property in a safe and serviceable condition. ARTICLE SIX OBLIGATION OF LESSEE A. LESSEE'S AUTHORITY Lessee warrants that it has full authority to enter into and perform this Lease. 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 Lessee Facilities, and all improvements and facilities placed on the Property by Lessee shall be at Lessee's sole cost and expense. C. MAINTENANCE The Lessee shall, at its own expense, provide maintenance for all Lessee Facilities: D. PROPERTY PERMANENTLY AFFIXED TO PROPERTY Any property belonging to Lessee which becomes permanently attached to the Property shall become the property of the City upon termination of this Lease, whether upon expiration of the initial term, any extension thereof, or earlier under any provision of this Lease. Title to Lessee Facilities shall remain exclusively 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 4 DA04AL023-A security interests in and to 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 for the removal of same without the need for recourse to legal proceedings. E. UTILITIES Lessee shall draw electricity by sub -meter 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 reasonably acceptable to City and the servicing utility company. Lessee shall have the right to install an emergency gasoline, butane, diesel, propane 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. Following the initial installation of the Lessee Facilities, Lessee agrees not to install any equipment on the Property or materially 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 5 DA04AL023-A 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 Omitted G. PERFORMANCE TESTS At City's written request, Lessee shall perform an intermodulation and interference study at the Property and evaluate for interference with its operations of other wireless communications users at the Property existing as of the beginning of the term of this Lease. Lessee further agrees that if Lessee's Facilities cause any measurable adverse interference with the operations of wireless communications users at the Property existing as of the beginning of the term of this Lease, Lessee shall cause the elimination of such interference in a prompt and timely manner. If such measurable adverse interference by Lessee's Facilities with communications equipment cannot be eliminated within reasonable length of time, but not to exceed forty-eight (48) hours after Lessee's receipt of written 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. 6 DA04AL023-A City shall not knowingly permit the installation or operation of other improvements, inclusive of telecommunications equipment upon the Property which interferes with the operation and use of Lessee Facilities. City shall cause any agreement for future use of the Property by subsequent users to contain interference language identical 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, repairing and removing 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 Lease 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. 7 DA04AL023-A 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 therefore (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 earlier termination of this Lease for any reason, Lessee shall surrender to City the Property, removed the Lessee Facilities, and shall restore the Property to substantially the same condition existing on the Commencement Date, except for ordinary wear and tear and damage resulting from a casualty or third parties 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 therefore, the reasonable, actual and documented 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 Lessee's receipt 8 DA04AL023-A of written notice from City to Lessee of its removal of such, Lessee's Facilities 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 Lease (even if it has been disconnected), Lessee shall pay to City holdover rent equal to one hundred twenty five percent (1251/o) 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 Property or on the business conducted on the Property or on any of Lessee's Facilities 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 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 Property. 9 DA04AL023-A 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 Property 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 Lease. 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 therefore. In the exercise of the obligations and in the enjoyment of the privileges granted by this Lease, 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, 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 ,employees and contractors. 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 with an A.M. Best rating of not less than A-, VII., 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 N0/100 DOLLARS ($500,000.00) for 10 DA04AL023-A Combined Single Limit General Liability Insurance; or less than THREE HUNDRED THOUSAND AND NO/100 (($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 NO/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 Property 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 cancellation, and remain in full force and effect until at least ten (10) days after such notice of cancellation is received by the Managing Director Water Utilities. ARTICLE SEVEN TERMINATION. CANCELLATION A. TERMINATION Subject to the terms of Article Two hereof 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 Property or improvements hereby demised. B. CANCELLATION Either party shall be in default under this Lease if the party fails to perform any material duty or obligations under this Lease 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 11 DA04AL023-A 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. Upon the occurrence of a default, the non -defaulting party may pursue any and all remedies available under applicable law or in equity 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 Lease by giving the defaulting party written notice of such termination, in which event this Lease 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 Lease, 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 Property by Lessee are removed and the Property is restored to the 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 12 DA04AL023-A 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, to terminate this Lease without further liability or obligation upon thirty (30) days prior written 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 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 Lease. B. RIGHT OF INSPECTION The City reserves the right to conduct inspections of the Leased premises at reasonable times and after delivering prior written notice to Lessee specifying the date and time of the inspection so Lessee may have a representative on the Property if Lessee so chooses 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 PROPERTY AND OWNERSHIP OF IMPROVEMENTS The Lessee covenants and agrees that at the expiration of the initial term of this Lease, or 13 DA04AL023-A any extension which has been granted, or upon earlier termination as provided elsewhere in this Lease, Lessee will quit and surrender the Property in the state and condition required in Article Six L. hereof and the City shall have the right to take possession of Property in accordance with 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 Lease. 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, properly 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 upon either receipt of refusal of delivery. B. Lessee's Address. Lessee's address and numbers for the purposes of notice are: Sprint Property Services Site ID: DA04AL023 Mail Stop: KSOP4T0101-Z2650 6391 Sprint Parkway Overland Park, KS 66251-2650 With a copy to Sprint Nextel Law Department Mailstop KSOPHT0101-Z2020 6391 Sprint Parkway Overland Park, KS 66251-2020 Attn: Real Estate Attorney 14 DA04AL023-A C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Chief Water Utilities Engineer P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2343 Facsimile: (806) 775-3344 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 15t' 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 or Lessee is expressly waived. 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. EXECUTED this 1st day of June , 2009. 15 DA04AL023-A The City of Lubbock: BY: Al'- /-'- i TOM MARTIN, MAYOR ATTEST: Rebecc Garza, City Secre APPROVEb AS CONTENT: ilVateiJtilities Engineer DD/con/WatTowerLeaseAgr50th--Alamosa March 17, 2009 Alamosa Properties, L.P., Lessee: • ' 00 Title: Site Development Manager 16 DA04AL023-A No Text 74TH & GENOA WATER TOWER �----- 250' - -_ 0 lw N d 'II-I-v 0 z w 74TH ,r