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HomeMy WebLinkAboutResolution - 2019-R0338 - Radio Tower Lease Agreement With Txdot - Tower At 135 Slaton Highway - 09_24_2019Resolution No. 2019-R0338 Item No. 6.19 September 24, 2019 RESOLUTION BE IT RESOLVED BY THE CITY COUNCII, OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Radio Tower Lease Agreement, by and between the City of Lubbock and Texas Department of Transportation (TxDOT), for the TxDOT communications tower at 135 Slaton Highway, and 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 City Council. Passed by the City Council on __September 24, 2019._ DANIEL, M. POPE, MAYOR ATTEST: Reb cca Garza, City Secre ry APP VED AS TO CONTENT: L. Wo d Fra in, P.E., Division of Public Works APPROVED AS TO FORM: Amy S' s, fVuty Cit Ay Resolution No. 2019-RO338 STATE OF TEXAS Lease Number COUNTY OF TRAVIS § County RADIO TOWER SITE LEASE AGREEMENT THIS RADIO TOWER SITE LEASE AGREEMENT ("Lease") is made and entered into to be effective when fully executed by all parties, by and between The City of Lubbock ("Lessee"), and the State of Texas by and through the Texas Department of Transportation(TxDOT) ("Lessor"). ARTICLE 1. PREMISES. Subject to the terms and conditions set forth herein, Lessor grants to Lessee, the right to access, install, maintain and operate radio communications equipment on the existing communications tower and in the equipment building, all owned by Lessee, and on the real property in Lubbock, Texas, Lubbock District Complex, 135 Slaton Highway (collectively, the Premises"). Lessee acknowledges and agrees that it has inspected the Premises and accepts the Premises in its present condition as suitable for Lessee's intended use. Lessor covenants that it will place the Lessee in possession of the premises free from all claims of any or all parties in possession and of third parties claiming rights in and to the use of premises, and the Lessor has a good and clear title to the conveyed premises. Lessor warrants against the claims for all persons to the leasehold interest of the Lessee. Any person or entity executing the Lease as an agent for the Lessor shall attach to this Lease sufficient evidence or authority to act in the capacity described. ARTICLE 2. USE. The Premises will be used by Lessee solely for the purpose of installing, constructing, maintaining, repairing, operating, altering, inspecting and removing the Equipment necessary for the efficient operation of Lessee's business. Lessee shall be responsible for obtaining all permits, licenses and approvals required for the maintenance and operation of the Equipment. Lessee shall pay all costs of construction and installation of the Equipment and shall permit no liens to attach to the Lessor's interest in the Premises. All such work shall be completed in accordance with the Lessee's plans and in a good and workmanlike manner. Lessee may not install signs upon the Premises without prior written, approval of Lessor. During the Term of this Lease, the Equipment shall be and remain the exclusive property of Lessee. Provided Lessee is not then in default hereunder, upon termination of this Lease, Lessee shall have the right, at its expense, to remove the Equipment from the Premises. Lessor may, at its option, require Lessee to remove the Equipment from the Premises at Lessee's cost, within thirty (30) days after termination of this Lease. Lessee shall repair any damage to the Premises caused by the removal of any of the Equipment. Lessor may enter and inspect the Premises at any time during reasonable business hours to ascertain the condition of the Premises and the Equipment and Lessee's compliance with the terms of this Lease. ARTICLE 3. TERM. The period ("Term") of this Lease will commence on the completion of the signatories and will terminate five (5) years thereafter,unless sooner terminated as provided herein. Lease—Lease—Radio Page 1 of 6 Revised 08/26/13 ARTICLE 4. RENT. Whereas the communication improvements will enhance the interoperability between agencies and provide the benefit of improved signal timing, Lessor agrees to allow the ongoing use of TxDOT's radio tower at no charge to the City of Lubbock. ARTICLE 5.ACCESS. Lessor grants to Lessee, for use only by Lessee, its authorized employees or engineers, and FCC inspectors or persons under their direct supervision, a non-exclusive right of access and license over,under, upon and across the adjoining lands of Lessor, and rights of way or easements owned or leased by Lessor,to the Premises on a twenty-four(24) hourly daily basis, for i)pedestrian and vehicular ingress and egress to and from the Premises; and(ii)the installation, operation and maintenance of necessary utilities for the Premises and the Equipment. Such access will be over and lie within existing roads and/or roads hereafter established by Lessee with Lessor's consent,not to be unreasonably withheld or delayed. Lessee may improve the access roads at its sole expense by grading, graveling and/or paving.The Lessee's right to access shall automatically terminate upon termination of this Lease. Lessor reserves the right, at Lessor's expense,to relocate the utility and access areas serving the Premises if Lessor determines such relocation is necessary or desirable to comply with applicable laws or to better accommodate farming and ranching operations, development,traffic circulation or other matters affecting the property of which the Premises are a part. ARTICLE 6. MAINTENANCE. The Lessor shall keep the leased premises in good repair and condition during the Term of the lease. If Lessor does not maintain the premises and all access in reasonable good repair,reasonable wear and tear excepted, Lessee shall notify Lessor in writing in reference to any maintenance problems. If within thirty (30)days after such notice has been delivered to Lessor, Lessor fails to take the necessary steps to remedy the grievances specified, Lessee may immediately terminate this Lease. ARTICLE 7. UTILITIES. Lessor will be solely responsible for and promptly pay all charges for gas, electricity,telephone service, or any other utility used or consumed by Lessee on the Premises. Lessee may, at its sole expense, install or improve existing utilities servicing the Equipment and may install an electrical grounding system or improve any existing grounding system to provide lightening protection to the Equipment. ARTICLE 8. TERMINATION. Lessee may, at its option,terminate this Lease at any time upon any of the following events: a) If state appropriated funds or federally funded program funds are curtailed or become unavailable to cover the full Term and cost of this Lease; or b) If the approval of any agency,board, court, or other governmental authority necessary for the installation and/or operation of the Equipment cannot be obtained, or is revoked; or c) If the lessor fails to correct frequency interference problems caused by other tower tenants or their equipment within 30 days of notification by Lessee; or d) It is determined by the State that termination is in the best interest of the citizens of the State of Texas. Lessee will give Lessor thirty(30) days written notice of termination of this Lease for any reason set forth above. Upon termination, neither party will owe any further obligations under this Lease except for the prompt reimbursement of pro-rata prepaid rent and Lessee's responsibility for removing all of the Equipment (or such portion thereof specified by Lessor) from the Premises and restoring the Premises as provided herein. Lease—Lease—Radio Page 2 of 6 Revised 08/26/13 ARTICLE 9.DEFAULT. If Lessee fails to comply with any provisions of this Lease and such failure is not cured within thirty (30) days after receipt of written notice thereof from Lessor, Lessor may, at its option, terminate this Lease without affecting its right to recover all past due rentals and any other damages to which Lessor may be entitled. If any such default cannot reasonably be cured within thirty(30) days, Lessee will not be deemed to be in default under this Lease if Lessee commences curing such default within the thirty(30) day period and thereafter diligently pursues such cure to completion. If Lessor fails to comply with any material provision of this Lease, and such failure is not cured within thirty(30) days after receipt of written notice thereof from Lessee, Lessee may, at its option, terminate this Lease without affecting its right to demand, sue for, and collect all of its damages arising out of Lessor's failure to comply. If any such default cannot reasonably be cured within thirty (30) days, Lessor will not be deemed to be in default under this Lease if Lessor commences curing such default within the thirty (30) day period and thereafter diligently pursues such cure to completion. The rights and remedies stated in this Lease are not exclusive and the parties, in the event of a breach of this Lease or a dispute, are entitled to pursue any of the remedies provided in this Lease, by law, or by equity. ARTICLE 10. 'TAXES. Lessor shall pay annually prior to delinquency all real estate taxes and assessments attributable to the property owned by Lessor. ARTICLE 11. REQUIRED INSURANCE. Lessee shall, during the Term of this Lease require all third-party contractors retained by Lessee to perform work on the Premises to obtain and maintain in force in connection with such work on the Premises appropriate commercial general liability coverage insuring operations hazard, independent contractor hazard, contractual liability, and products and completed operations liability,bodily injury, personal injury and property damage liability, naming Lessor as an additional insured; and Worker's Compensation(statutory limits) and Employer's Liability insurance . ARTICLE 12.ASSIGNMENT AND SUBLETTING. Lessee may not assign this Lease or sublet the Premises without the prior written consent of Lessor; provided that Lessee may sublet to or allow a Federal or State agency to construct or install similar communications equipment on the existing tower. Any permitted sublease entered into by Lessee shall be subject to Lessor's prior approval which may not be unreasonably withheld, and any permitted assignee or sublessee shall be bound to and adhere to all of the provisions of this Lease. In the event of any such assignment or sublease, Lessee shall remain liable for the performance of all obligations contained in this Lease, unless Lessor expressly releases Lessee in writing. ARTICLE 13. CONDEMNATION OR-DESTRUCTION OF PREMISES. If any governmental,public body or other condemning authority takes,or if Lessor transfers in lieu of such taking, all or part of the Premises, thereby making it physically or financially infeasible for the Premises to be used in the manner intended by the Lease, Lessor and Lessee shall each have the right to terminate this Lease effective as of the date of the taking by the condemning party and rental shall be prorated appropriately. If only a portion of the Premises is taken, and neither Lessor nor Lessee elects to terminate this Lease under this provision,then the Lease shall continue but rental payments provided under this Lease shall abate proportionately as the portion taken which is not then usable by Lessee, and Lessor shall make all necessary repairs and alterations to restore the portion of the Premises remaining to as near their former condition as circumstances will permit(at a cost not to exceed Lessor's proceeds from the condemnation or transfer). Lease—Lease—Radio Page 3 of 6 Revised 08/26/13 If the tower or the Premises are damaged or destroyed, Lessor shall make its best efforts to restore the Premises and tower to a suitable condition for continued operation of the facility in a timely fashion. ARTICLE 14. NOTICE. All notices or demands are deemed to have been given or made when delivered in person, or upon deposit in the U.S. mail by certified, registered, or express mail, return receipt requested, postage prepaid, or upon receipt by facsimile or other similar transmission, and addressed to the applicable party as follows: LESSOR: Address:Texas Department of Transportation Lubbock District ATTN: Director of Transportation Operations 135 Slaton Highway Lubbock, Texas 79404 LESSEE: Address:City of Lubbock ATTN: Division Director of Public Works P.O. Box 2000 Lubbock, Texas 79457 ARTICLE 15. ENTIRE AGREEMENT AND BINDING EFFECT. This Lease and any attached exhibits constitute the entire agreement between Lessor and Lessee; no prior written promises or prior contemporaneous or subsequent oral promises or representations will be binding. This Lease will not be amended or changed except by written instrument signed by the parties hereto. Captions herein are for convenience of reference only and neither limit nor amplify the provisions of this Lease. The invalidity of any portion of this Lease shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto. ARTICLE 16. STATE AUDITOR. The state auditor may conduct an audit or investigation of any entity receiving funds from TxDOT directly under the contract or indirectly through a subcontract under the contract. Acceptance of funds directly under the contract or indirectly through a subcontract under this contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit. ARTICLE 17. GOVERNING LAW. This Lease shall be governed by the laws of the State of Texas. ARTICLE 18. ACCESS TO INFORMATION. The Lessor is required to make any information created or exchanged with the state pursuant to this contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge to the state. Lease—Lease—Radio Page 4 of 6 Revised 08/26/13 IN WITNESS WHEREOF, the parties have entered into this Lease as of the date hereinafter set forth. LESSOR: THE STATE OF TEXAS Executed and approved for the Texas Department of Transportation through the Texas Transportation for the purpose and effect of activating and/or carrying out the orders, established policies, or work programs heretofore approved and authorized by the Texas Transportation Commission. By Date Steve Warren, P.E., District Engineer LESSEE: CITY OF LUBBOCK By Date September 24, 2019 Daniel Pope, Mayor Attest Date September 24, 2019 RebehQa^Garza, City Secretary Approved as to content Date /a - L. WoodlFr^^n, P.E., Division Director of Public /Works Approved as to form , Assista omey Date Lease-Lease Radio Page 5 of 6 Revised 08/26/13 EXHIBIT A All existing equipment owned and installed by the City of Lubbock on the TxDOT Lubbock Complex Tower is as follows: Two (2) 11 GHz, point to point, data radio links that connect the tower to two(2) other legs of a four(4) leg wireless ring around the City of Lubbock. Two (2)4' diameter dish antenna systems with associated radios, cabling, clamps and grounding. One antenna on the North side of the tower,the other on the West side of the tower. Both are mounted approximately 100' high. One (1) 5.2 -5.8 GHz, point to multipoint access point cluster,which will connect the tower to approximately sixteen (16) signalized intersections. The access point cluster consists of four(4) panel antennas, creating the access point cluster,with associated radio, cabling, clamps and grounding. One antenna is mounted on the North side of the tower, one on the East side of the tower, one on the South side of the tower, and one on the West side of the tower. Each one is mounted approximately 100' high. All equipment associated with the City wireless systems is housed in the TxDOT building at the base of the tower. This includes a wall mounted rack with an Ethernet switch, power surge equipment, Ethernet radios, and a 12 port patch panel. Lease—Lease—Radio Page 6 of 6 Revised 08/26/13