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HomeMy WebLinkAboutResolution - 2007-R0359 - Agreement - TXDOT - Lease Of Radio Tower Site - 08/09/2007Resolution No. 2007-RO359 August 9, 2007 Item No. 5.15 RESOLUTION 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 an Agreement by and between the City of Lubbock and the Texas Department of Transportation for lease of a radio tower site from the City by TXDOT at 102 Municipal Drive within the City of Lubbock, which Agreement and any associated documents are attached hereto and made a part of this Resolution for all intents and purposes. Passed by the City Council this 9th day of August , 2007. DAVID A. MILLER, MAYOR ATTEST: City Secretary APPROVED AS TO CONTENT: Mar 4Yearnwv d, Ass tart City Manager APPROVED AS T ORM: /, andiver, Attorney of Counsel DDres/TXDO I'- RadioTowerl.easeSiteC'on07 Res July 9, 2007 STATE OF TEXAS § COUNTY OF TRAVIS Resolution No. 2007—RO359 I-27 Pump Station Project CSJ 0905-00-040 Lubbock 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 ("Lessor"), and the State of Texas by and through the Texas Department of Transportation (TxDOT) ("Lessee"). 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, Municipal Hill Addition Tract A, 102 Municipal Drive (parcel address only) (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 initial term of this lease shall be for five (5) years and shall begin on the date Lessee commences installation of its Facilities (as described in Article 3 below) on the Property, and shall continue in effect for a period of five (5) years thereafter, unless sooner terminated as provided herein. COL Radio Tower 1 of 6 5/3/2007 Upon written application of Lessee delivered to the office of the city manager ninety (90) days prior to the expiration of the initial term of this lease, the City Manager may extend this lease for a period of five (5) years upon the same terms and conditions contained herein, provided. Any extension of this lease granted pursuant to this Article shall be in writing and signed by the Lessee and the City Manager. Lessee may terminate this lease at any time upon thirty (30) days written notice to Lessor. The execution of this agreement does not obligate Lessee to install its Facilities on the Property. ARTICLE 4. NONINTERFERENCE. At City's request, Lessee shall perform an intermodulation and interference study at the Property to evaluate potential interference with the operations of other existing communications users at the Property. Lessee further agrees that if Lessee's Facilities cause any measurable adverse interference with the operations of existing or future uses by governmental 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 or future uses by governmental communications equipment cannot be eliminated within a reasonable length of time, but not to exceed forty-eight (48) hours after notice has been provided by the City either orally or in writing, Lessee shall cause the interference to cease except for brief tests necessary for the elimination of the interference. ARTICLE 5. RENT. Whereas the communication improvements to the Loop 289 and I-27 pump station will benefit the City in the alleviation of flooding, lessor agrees to allow the installation of the radio antenna and the ongoing use of the cities radio tower at no charge to the State. ARTICLE 6. 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 7. 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 tape the necessary steps to remedy the grievances specified, Lessee may immediately terminate this Lease. ARTICLE 8. UTILITIES. Lessor will be solely responsible for and promptly pay all charges for gas, electricity, and water. All other utilities, such as telephone services will be at Lessee's expense. Lessee may, at its sole expense, install or improve existing utilities servicing the Equipment and COL Radio Tower 2 of 6 5/3/2007 may install an electrical grounding system or improve any existing grounding system to provide lightening protection to the Equipment. ARTICLE 9. 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 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. ARTICLE 10. 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 11. TAXES. Lessor shall pay annually prior to delinquency all real estate taxes and assessments attributable to the property owned by Lessor. ARTICLE 12. 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. COL Radio Tower 3 of 6 5/3/2007 ARTICLE 13. 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 14. 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). 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 15. 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: City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Telephone No.: (806) 775-2326 LESSEE: Address: Texas Department of transportation 135 Slaton Highway Lubbock, Texas 79404-5201 Telephone No.: (806) 748-4471 ARTICLE 16. 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. COL Radio `Power 4 of 6 5/3/2007 ARTICLE 17. 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 18. GOVERNING LAW. This Lease shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, the parties have entered into this Lease as of the date hereinafter set forth. LESSOR: CITY OF LUBBOCK, TEXAS Date: August 4, 2007 Authorize Signature Title: David A. Miller, Mayor Attest: ca rza OCiRtySecretary Approved As To Content: 4----ey Mark arwood Assistant City Manager Approved As To Form: i Don Vandiver Attorney of Counsel LESSEE: 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 Co is on. By: Date: Q Randy C. H m , P.E. District Engin COL Radio Tower 5 of 6 5/3/2007 Exhibit A Lessee's Facilities Lessee may, at any time, replace the following equipment with like equipment in accordance with the terms of the agreement and all such substituted equipment shall be deemed to be included among the equipment listed below: One (1) 4.9 GHZ transmit antenna system, associated cabling and radio system One (1) 4.9 GHZ receive antenna systems, associated cabling and radio system One (1) small weatherproof equipment enclosure and its contents Lessee shall obtain Lessor's approval prior to adding any equipment to the foregoing. COL Radio Tower 6 of 6 5/3/2007