Loading...
HomeMy WebLinkAboutResolution - 4860 - Radio Tower Lease Agreement - Banam Broadcasting Inc. - 06/08/1995Resolution No. 4860 June 8, 1995 Item #19 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 a Radio Tower Lease Agreement and all related documents by and between the City of Lubbock and Banam Broadcasting, Inc., for the Emergency and General Communications System (800 MHz Voice Radio System) for the City of Lubbock, which contract is attached hereto, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in d - Passed by the City Council this ATTEST: &-t&,- A - k ci��L Betty R4. fohnson., City Secretary APPROVED AS TO CONTENT: Thomas W. Tuning, Managi rector of Information & Communications Services APPROVED AS TO FORM: Mni ald G. Vandiver, Fi Assistant City Attorney Apkcdocs\Radiolres June 1, 1995 Resolution No. 4860 June 8, 1995 Item #19 RADIO TOWER LEASE AGREEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § In consideration of the covenants herein contained between CITY of LUBBOCK, herein referred to as Lessee, and BANAM BROADCASTING, INC., herein referred to as Lessor, the parties mutually agree as follows: I. Lessor hereby grants permission to Lessee to install, maintain and operate at :Lessee's sole expense the following described radio communications equipment on or in Lessor's property located at 7403 South University, Lubbock, Texas: A. An antenna system is to be located on a Lessee provided standoff bracket at about the 700' level of Lessor's radio tower. The exact location on the tower will be determined by Lessor's engineers so as to avoid interference with guy lines, lighting equipment, or other antennas on the tower. B. Flexible coaxial transmission lines between antennas and radio equipment are to be anchored firmly to the tower. C. Radio communication equipment consisting of a 800 MHZ trunking system to be installed in Lessee's equipment house near the base of Lessor's tower. II. Lessor agrees that Lessee shall have free access to the tower for the purpose of installing the radio equipment, and during the continuation of this lease, free ingress and egress to said tower is hereby granted to Lessee for the purpose of maintenance and repair to its equipment. It is agreed, however, that only authorized engineers or employees of Lessee, FCC inspectors, or person(s) under their direct supervision will be permitted to enter said property. It is further agreed that only approved companies and/or personnel will be allowed to perform tower maintenance, and such approval must be obtained from Lessor in writing prior to any such maintenance. Lessee agrees that such persons as are mentioned in Paragraph II above and/or its representatives, with the exception of City of Lubbock law enforcement personnel, will not carry firearms of any type in or upon said property, nor will they do any hunting of any type while on or about the property. IV. It is further understood and agreed that Lessee's equipment, its installation, maintenance, and operation will in no way damage the building or tower structure or interfere with the maintenance of the Lessor's tower and tower lighting system or the operation of Lessor's or any other person's equipment or the quantity or quality of their transmissions. V. Lessee agrees to install radio equipment of a type and frequency which will not cause interference to any other equipment on the tower, and hereby agrees to make no changes in equipment or frequency without prior approval of Lessor. If by mutual agreement of Lessor and Lessee or in the good faith judgment of Lessor's engineer, Lessee's equipment causes any type of interference with such other equipment, including the quantity or quality of the transmission signal of such other equipment, Lessee shall immediately cease its transmission (if caused thereby) and refrain therefrom until the problem is corrected. Lessee shall take all steps RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 2 VIII. All installations and operations in connection with this tower, either by Lessor or by Lessee, shall meet with all applicable Rules and Regulations of the Federal Communications Commission (FCC), Federal Aviation Administration and electrical codes of the city, county and state concerned. Under this Lease Agreement the Lessor assumes no responsibility for the licensing, operation and/or maintenance of Lessee's radio equipment. IX. Lessor shall be responsible for the declaration and payment of any applicable taxes or assessments against the property owned by Lessor. Lessee shall be responsible for the declaration and payment of any applicable taxes or assessments against the property owned by Lessee, including, but not limited to, any sales tax or use tax applicable to the considerations that are a part of this Lease Agreement. 1N It is agreed by and between the parties that the Lessor is not an insurer, that the payments of rental by the Lessee as herein provided are based solely on the value of the services and facilities provided in this Lease Agreement. It is further agreed that Lessor shall not be liable to Lessee in any manner for damages caused by acts of God, or other acts beyond the control of Lessor, although Lessor shall exercise due diligence to restore services and facilities pertaining to the property owned by Lessor and leased to Lessee hereunder, regardless of the nature of such cause. If due to acts of God or for any other reason Lessee's use of the tower is interrupted, Lessor shall be liable only for an amount equal to the rent for the period during which such service is interrupted. Lessee hereby indemnifies and holds Lessor harmless from any losses, damages, or claims whatsoever arising from or in connection with the installation, operation, or RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 4 necessary to correct and eliminate the interference at its sole expense. If said interference cannot be eliminated to the satisfaction of both parties within a reasonable length of time (but in no event more than ninety (90) days), the Lessee agrees to remove its equipment from Lessor's property within thirty (30) days and this lease shall then terminate without further obligation on either part except as may be specifically enumerated herein. Since Lessee's transmissions are essential to public health and safety, if Lessor's equipment causes interference with the quality or quantity of the transmission signal of the Lessee, Lessor shall take all reasonable steps to correct and eliminate the interference at its sole expense. Lessor will not grant a lease to any other party for use of the property if such grant would in any way effect or interfere with Lessee's use of tower. VII. Lessor agrees to maintain the tower in proper operating condition. Cost of lighting, painting, and repairs to Lessor's property shall be borne by Lessor. Lessee agrees to maintain its property in satisfactory condition as to appearance and safety and proper operating condition. Lessee may place or construct a building with dimensions of approximately 14' x 28' near the vicinity of the tower base for its equipment house. Lessee shall be responsible for all power costs associated with its equipment, and will provide all related connections and equipment for such power, as approved by Lessor. Only licensed electricians shall perform such work, all in compliance with applicable codes and FCC regulations. RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 3 maintenance of Lessee's equipment. Lessor hereby indemnifies and holds Lessee harmless from any losses, damages, or claims whatsoever arising from or in connection with the installation, operation, or maintenance of Lessor's equipment used in connection with KLBK-TV. /01 Lessor at all times during the term of the Lease Agreement will maintain the tower and all associated tower marking and lighting in compliance with all applicable federal, state and local laws, rules and regulations relating to tower marking or lighting, including without limitation, Part 17 of the rules and regulations of the FCC. In the event Lessee receives notice or otherwise obtains knowledge that the tower marking or lighting is not in compliance with any applicable law, rule or regulation, Lessee will immediately notify Lessor (by fax and/or by telephone confirmed in writing) and will cooperate with Lessor in curing any such noncompliance. Provided Lessee shall have complied with its obligation hereunder, Lessor agrees to indemnify and hold Lessee harmless from and against any and all liability, damage, loss, cost or expense incurred by Lessee, including but not limited to any fine, penalty or forfeiture assessed against Lessee by the FCC, arising out of Lessors failure to maintain the tower marking and lighting. However, to the extent any such noncompliance is caused by Lessee, Lessee shall indemnify and hold Lessor harmless from any and all liabilities, costs, and expenses incurred therefrom and Lessee shall be responsible for all costs of curing such non-compliance. Not withstanding anything to the contrary contained in this Lease Agreement, promptly after receipt by either party hereto of notice of the assertion of any claim sought against either party resulting from lack of maintenance, proper marking or proper lighting of the tower, the party receiving such notice will notify the other party in writing of the assertion of such claim. Subject to the provisions hereinafter set forth, the Lessor shall assume the defense of such claim and the payment of expenses therefore insofar as such claim shall relate to any alleged claim RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 5 XII. Lessor may assign this Lease Agreement without the consent of Lessee; however, prior to such assignment Lessor shall give written notice to Lessee. Lessee may assign this Lease Agreement only with the consent of Lessor, which consent cannot be unreasonably withheld. All of the obligations, as well as all of the rights and privileges contained herein, shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors and assigns. If Lessee assigns this Lease Agreement without prior written consent of Lessor, Lessee shall nevertheless be fully liable for any default occurring on the part of the assignee. XIII. Lessor represents and covenants that it has insurance coverage for the tower property in an amount consistent with industry standards and adequate in Lessor's opinion, which coverage shall be maintained during the term of this agreement. Prior to commencement of installation work, Lessee shall furnish to Lessor a certificate of self-insurance. Lessee represents and warrants that its self-insurance fund coverage is applicable to Lessee's activities under this Lease Agreement. Lessee covenants that such self- insurance will remain in effect for the term hereunder. Any contractor, subcontractor, or service provider which enters Lessor's property or Lessee's property, leased hereunder, at Lessee's request and who is not an employee of Lessee shall provide Lessor with an insurance certificate reasonably satisfactory to Lessor before entering or servicing on Lessor's or Lessee's property. Notwithstanding the foregoing insurance requirements, the insolvency, bankruptcy, or failure of any insurance company or entity providing insurance for a party hereunder, or failure of any such entity pay claims accruing, shall not be held to waive any of the provisions of this Agreement or relieve any party from any obligations under this Agreement. RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 7 which Lessor has agreed to indemnify Lessee against. It shall be a condition of Lessor's obligation hereunder to hold Lessee harmless from the claims herein described that Lessee, (1) permits Lessor to assume full responsibility for the defense of such claim; (2) cooperates fully and timely with all of Lessor's requests for assistance in preparing and presenting such defense; and (3) not be in default of any provision contained in this Lease Agreement. The cooperation required of Lessee hereunder shall include, without limitation, having its employees testify when requested by the Lessor and making available any records, information, documents or other data reasonable requested by Lessor or its counsel in connection with such claim. Provided that Lessee is not in breach of any of its obligations hereunder, Lessor or its counsel shall make available to Lessee or its counsel any information concerning the claim and the status of the defense which Lessee or its counsel may request, except that Lessor or its counsel shall not be required to deliver to Lessee or its counsel any information or materials which are protected by a legal privilege or any other information, the furnishing of which would, in the opinion of Lessor or its counsel, have an adverse affect upon the defense against such claim. In the event Lessee has had other fines, penalties or forfeitures levied against it arising out of the same type of action covered by this provision, which fine, penalty or forfeiture was not related to a tower owned by Lessor, then, in such event, Lessor's obligations hereunder shall be limited to the amount of fine, penalty or forfeiture which would be due without regard to Lessee's prior fine, penalty or forfeiture. In the event Lessee has suffered a prior fine, penalty or forfeiture assessed against it relating to a tower not owned by Lessor, and in the further event, Lessor is relieved from any of its obligations to indemnify Lessee hereunder (as set forth earlier in this paragraph), Lessee may, by written notice to Lessor, elect to defend itself against the claims so asserted. In such event, Lessor shall give to Lessee the same cooperation required of Lessee in the defense of such claim. RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 6 WW Special Condition: Lessor grants Lessee the right of way to install fiber optic cable or other comparable communications to Lessee's building at the base of the tower, all at Lessee's sole expense. A This Lease Agreement shall commence upon execution hereof by all parties. Notice of installation of Lessee's radio equipment date shall be provided to Lessor in writing within ten (10) days following start. Beginning of installation shall in no event be later than October 1, 1995. The Lease Agreement shall run for a period of ten (10) years. Unless one party notifies the other party to the contrary at least sixty (60) days prior to the end of the initial lease period, it is mutually agreed that this Lease Agreement shall be automatically renewed subject to the same terms and provisions for one (1) additional period of ten (10) years. N Lessee shall pay TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) annually for antenna space on the tower, and space to locate Lessee's equipment building and cable at the tower base. TOTAL ANNUAL LEASE AMOUNT: $10,000.00 For said lease, the Lessee shall pay for the first year a pro -rated portion of the annual rental based on the number of months remaining in the year. The annual rental of TEN THOUSAND AND N0/100 DOLLARS ($10,000.00) shall be payable in advance of the first day of every year throughout the life of this agreement. Rent not received by the 20th day of the first month of each year will be considered delinquent. Lessee shall have a grace period of ten (10) days, after which time this Lease Agreement is in default. Said annual rental shall not include RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 8 the furnishing of power by the Lessor to the Lessee's radio equipment. All rentals, as will as other payments provided in this Lease Agreement, shall be payable at the office of the Lessor in Lubbock, Texas. If after execution of this Lease Agreement, Lessee is unable to occupy Lessor's tower within 180 days from date of execution due to action of FCC or for other reasons, this lease may be canceled by either party without obligation on the part of either party, except that Lessee may be required to reimburse Lessor for any expenses incurred during the negotiation or execution of this lease, said reimbursement not to exceed ONE HUNDRED AND N0/100 DOLLARS ($100.00). XVIII. On the event of Lessee's uncured default in the payment of rentals, or Lessee's failure to comply with any other provision of this lease, Lessor may, at its option terminate this lease without affecting its right to sue for all past due rentals and any other damages to which Lessor may be lawfully entitled. Should Lessor be forced to collect said rentals or damages through its attorney or by other legal procedures, Lessor shall be entitled to reimbursement of its reasonable costs and attorney fees from Lessee. RADIO TOWER LEASE AGREEMENT BANAM BROADCASTING, INC. (KLBK) ---- PAGE 9 SENT BY:MINKIN & SNYDER, P.G. c 6- 1-95 1:07PM : 4042616084 606747$618:# 2/ 2 a 1 4 WM -r M I NK I N & SNYDER :# 2 CITY *TTOWY AM2 MKORTRY 6097621woo ■.m& Ultbu pgay amy tm*mu M Lwe Asmumat at ft and Of Mt 091=4w Pm Aft the ��'tst year Upw aw (m &79 06' "ft" Hadco bo tho o*w pmv. E ii �t Z.]1��4 C►� +Ol! t�A 8th ,........�...,_ d4v of June - 19"► ATTW! ! ADDRESS: APPROVED AS TO COMM IDxFOS.- Lubes 2000 TOM 79457 a9rjVA-XUM= MAMMW M 19" Nva ToV= W= A*UWLWT jjAMM 8joJ1>W'ttl , Gh1C,(WI) -- PAU 16 CITY ATTRINY AND SEC:RTRY 8667521946 P_01 Either party may terminate this Lease Agreement at the end of anY calendar year after the first year upon sixty (60) days prior written notice to the other part' da of 1995. Y Executed at Lubbock, Texas on this �_ LESSEE: YAV CITY OF LUl3SOC AM BRO AS NG, IN o� BY: BY: `' DAVID X. LA GSTOIV, Mayor CI LIPPS, G her Manag ATTEST: ADDRESS: 7 3 S. Un ers Lubbock, Texas Betty M. Johnson, City Secretary APPROVED AS TO CONTENT* 4 Tarn Turtxztg, Managing D °Services Information & Commu . APPROVED AS TO FORM, Donald G. Vandiver, First Assistant City Attorney ADDRESS: Lubbock, Texas 79457 DGV;js/A•KL13KM0C CityAtMky 10, 1995 RATIO TOWER LEASE ApGRE�E/ME SAGE 10 BANAM BROADCASUNG, INC. O^ "BY-)