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HomeMy WebLinkAboutResolution - 6304 - Agreement - Poka Lambro PCS Inc. - 05/13/1999Resolution No. 6304 Item No. 28 May 13, 1999 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement between the City of Lubbock and Poka Lambro P.C.S., Inc. of Lubbock, Texas to lease City property, and any other related documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 13th day of May 1999. "J DYSITTVN, MAYOR APPROVED AS TO CONTENT: Terry EllerbroQk Managing Director Water Utilities APPROVED AS TO FORM: Jo . Knight ssistant City Attorney cp Ccdacs+PokaLambro.Aes May 4, 1999 STATE OF TEXAS Resolution No. 6304 Item No. 28 May 13, 1999 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LUBBOCK § LEASE AGREEMENT THIS AGREEMENT entered into by the City of Lubbock (referred to herein as City), a Home Rule Municipality of Lubbock County, Texas, and Poka Lambro, P.C.S., Inc. (referred to herein as Lessee). WITNESSETH: WHEREAS, City owns, controls and operates one (1) parcel of land (hereinafter referred to as the "Land") and owns and operates pump stations (hereinafter referred to as the "Station") located thereon in the City of Lubbock, County of Lubbock, State of Texas, (hereinafter the Station and Land are collectively referred to as the "Property"); and WHEREAS, Lessee desires to lease the said Property for the purpose of providing telecommunication services within the City of Lubbock, Texas. NOW THEREFORE, for and in consideration of the mutual promises, covenants, terms and conditions, both general and special, as hereinafter set forth, City hereby grants to Lessee the rights and privileges hereinafter described; Lessee agrees to accept the duties, responsibilities and Lease Agreement City of Lubbock/Poka Lambro PCS obligations as hereinafter set forth; and the parties hereto, for themselves, their successors and assigns, agree as follows: ARTICLE ONE LEASE OF DESCRIBED PREMISES City, upon mutual execution of this agreement, does lease and demise to Lessee, upon the terms and conditions contained herein, the following Property: A. Real property and space on Pump Station no. 10 at 82"d Street and Memphis Avenue, Lubbock, Texas. ARTICLE TWO TERM The terni of this lease shall be for five (S) years and shall begin on the 13th day of May , 1999, and terminate on the 13th day of May , 2004. Upon written application of Lessee, delivered to the office of the Managing Director Water Utilities of City prior to the expiration of the initial term of this lease, the Managing Director Water Utilities may extend this lease for a period of five (S) years upon the same terms and conditions contained herein, provided, however, that the annual rent shall increase on the first day of the renewal term by twenty percent (20%) of the annualized annual rent in effect immediately proceeding the increase. Any extension of this lease granted pursuant to this Article shall be in writing and signed by the Lessee and the Managing Director Water Utilities. 2 Lease Agreement City of Lubbock/Poka Lambro PGS c ARTICLE THREE USE OF PROPERTY The Lessee is granted for the stated term and for no other purpose a non-exclusive privilege of installing, maintaining, repairing, replacing, removing and operating radio and related communications facilities, including utility lines, transmission lines, and equipment shelter or cabinet, electronic equipment, radio transmitting and receiving antennas and supporting structures in connection with the provision of telecommunications services (hereinafter collectively referred to as "Lessee Facilities"). ARTICLE FOUR RENTALS, RECORDS, AUDIT AND PLACE OF PAYMENT A. RENTAL The Lessee shall pay to the City as rental the total of Six Thousand and No/100 Dollars ($6,000.00) annually during the term of this Agreement that Lessee conducts business operations on the Property. The said rental is payable in the amount of Five Hundred and No/100 Dollars ($500.00) for each month during the term thereof. B. PAYMENT All payments that become due and payable by the Lessee under this Agreement shall be made to the City at the Office of the Managing Director Water Utilities, Lubbock, Texas. Lessee 3 Lease Agreement City of Lubbock/Poka Lambro PCS shall pay City a late payment charge of five percent (5%) of the total amount of rentals payable if payment of such rentals is not made when due. ARTICLE FIVE OBLIGATIONS OF THE CITY A. CLEAR TITLE The City covenants and agrees that upon execution of this lease City is well seized of the leased Property and has good title, free and clear of all liens and encumbrances having priority over this lease; and that the City has full right and authority to lease the Property described in this agreement. B. CONDITIONS AND MAINTENANCE OF PROPERTY The City shall assume responsibility for the condition of the leased Property and shall assume responsibility for maintenance, upkeep or repairs necessary to keep the Property in a safe and serviceable condition. ARTICLE SIX OBLIGATION OF LESSEE A. LESSEE'S AUTHORITY City warrants that it has full authority to enter into and perform this Agreement. B. NET LEASE This lease shall be without cost to the City for the installation, maintenance and removal of Lessee's Facilities. It shall be the sole responsibility of the Lessee to keep, maintain, repair 4 Lease Agreement City of Lubbock/Poka Lambro PCS and operate the entirety of the demised Lessee Equipment, and all improvements and facilities placed on the leased premises shall be at Lessee's sole cost and expense. C. MAINTENANCE The Lessee shall, at its own expense, provide maintenance for all its Lessee Facilities. D. PROPERTY PERMANENTLY AFFIXED TO PROPERTY Any property belonging to Lessee which becomes permanently attached to the leased premises shall become the property of the City upon termination of this agreement, whether upon expiration of the initial term, any extension thereof, or earlier under any provision of this lease. E. UTILITIES Lessee shall draw electricity by submeter and other utilities from the existing utilities on the Property or obtain, at its sole cost and expense, separate utility service from any utility company that will provide service to the Property. Any easement necessary for such power or other utilities will be at a location acceptable to City and the servicing utility company. Lessee shall have the right to install an emergency gasoline, butane, diesel or other fuel - powered generator(s) on the Property, at Lessee's sole costs and expense, and Lessee covenants that such installation and use shall be in compliance with any applicable federal, state or local environmental, health, fire, community awareness, safety laws or other applicable laws or regulations, now or hereafter enacted or promulgated by any governmental authority or court ruling having jurisdiction over the Property, including, without limitation, any applicable guidelines promulgated by the Environmental Protection Agency, and Lessee agrees that it will reimburse City for any increase in City's insurance premiums directly 5 Lease Agreement City of Lubbock/Poka Lambro PCS 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 change, the frequency, power, or type of its existing equipment on the Property without first submitting to City a written proposal regarding the proposed configuration and obtaining the written consent of City, which consent shall not be unreasonably withheld if (i) the proposed installation or changed, altered, or improved frequency, power or type of equipment is a use that does not require additional Property space beyond the existing Property space or impose any increased stresses or loads on the Property in excess of applicable engineering standards; (ii) said installation or changed, altered, or improved frequency, power, or type of equipment is authorized by law and is to be made or installed in accordance with good engineering practices; and (iii) the proposed configuration does not interfere with the transmitters, receivers and equipment of other subtenants or licensees existing on the Property or on the Property at the date when City receives the aforementioned written proposal. F. CONSTRUCTION PROPERTY None of the Lessee Facilities shall be installed on the Station nor shall any construction pertaining to the Lessee Facilities commence until Lessee has submitted its construction and installation plans and list of contractors and subcontractors to City in writing and such plans and list have been approved in writing by City. Lessee shall not alter any plans so approved 6 Lease Agreement City of Lubbock/Poka Lambro PCS without following the same procedures. Lessee shall be responsible for grounding all external and internal wiring and cabling installed by Lessee. Lessee shall obtain City's prior written approval of such grounding plans. G. PERFORMANCE TESTS At City's request, Lessee shall perform an intermodulation and interference study at the Property and evaluate for interference with its operations of other existing wireless communications users at the Property. Lessee acknowledges that the disclosed uses and frequencies, as presently identified on Exhibit C annexed hereto, do not, if properly and lawfully operated, interfere with Lessee's use of the Property, and that Lessee's use of the Property will not interfere with such disclosed uses and frequencies. Lessee further agrees that if Lessee's Facilities cause any measurable adverse interference with the operations of existing wireless communications users at the Property, Lessee shall cause the elimination of such interference in a prompt and timely manner. If such measurable adverse interference by Lessee's Facilities with existing communications equipment cannot be eliminated within reasonable length of time, but not to exceed forty-eight (48) hours after notice thereof of material interference and thirty (30) days if otherwise measurably adverse, Lessee shall cause the interference to cease except for brief tests necessary for the elimination of the interference. Lessee, Lessee's employees, agents and subcontractors may enter on or across the Land twenty-four (24) hours a day, seven (7) days a week, at no charge, and upon receipt of notification by City that a representative of Lessee is on site to obtain entry into the Property Lease Agreement City of Lubbock/Poka Lambro PCS for the purpose of constructing, installing, operating, performing outline maintenance and repairing those parts of the Lessee Facilities as are ground-based. Entry for maintenance, other than routine maintenance, shall require not less than forty eight (48) hours notice to City. H. CODE COMPLIANCE Lessee agrees that all Lessee Facilities constructed pursuant to the terms of this Agreement shall be designed, constructed and maintained in compliance with the Buildings and Buildings Regulations and Zoning ordinances of the City of Lubbock, Texas. 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. Damage resulting from the acts or omissions of Lessee shall be repaired by Lessee, at Lessee's cost and expense unless otherwise provided herein. GOVERNMENTAL REGULATION Lessee shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the Federal Communications Commission ("FCC"), Lessee shall pay for the reasonable costs and expenses therefor (including for any lighting automated alarm system). K. LIGHTING If lighting requirements apply and a lighting automatic system has been installed by City, City shall allow Lessee to bridge -in to the system to permit a parallel alarm or to install a Lease Agreement City of Lubbock/Poka Lambro PCS 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. CITY USE Lessee shall permit the City to use a portion of Lessee's radio tower without charge to the City in those instances where the radio frequency used by the City is compatible with Lessee's use of the radio tower. M. SURRENDER AND REMOVAL OF LESSEE'S FACILITIES At the expiration or termination of this Agreement for any reason, Lessee shall surrender to City the Property, remove the Lessee Facilities, and shall restore the Property to substantially the same condition existing on the Commencement Date, except for ordinary wear and tear. Lessee Facilities left on the Property after ten (10) 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 therefor, the disconnection, removal and storage expenses incurred by or on behalf of City. If the Lessee Facilities are not claimed by Lessee within thirty (30) days following notice from City to Lessee of its removal of such Property shall be deemed abandoned and will become the Property of the City, City shall have the right to sell all or any portion of the Lessee Facilities without any liability to Lessee to account for the proceeds of such sale. In the event the Lessee Facilities remain on the Property following termination or expiration of this Agreement (even if it has been disconnected), Lessee shall pay to City holdover rent equal to one hundred Lease Agreement City of Lubbock/Poka Lambro PCS twenty five percent (125 °1) 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. N. PAYMENT OF TAXES, FEES The Lessee shall pay all federal, state and local government taxes, license fees and occupation taxes levied on either the leased premises or on the business conducted on the leased premises or on any of Lessee's property used in connection therewith. 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. 0. REGULATIONS The Lessee's officers, agents, employees and servants will obey all rules and regulations which may be promulgated by the City or its authorized agents, or by other lawful authority, to ensure the safe and orderly conduct of City's and Lessee's operations on the Premises. P. SUBLEASES AND ASSIGNMEENTS Lessee may assign this lease, upon written notice to Lessor, to any person controlling, controlled by, or under common control with Lessee, and to any person or entity that acquires Lessee's telecommunication business and assumes all obligations of Lessee under this lease. Upon such assignment, Lessee shall be relieved of all liabilities and obligations hereunder, and Lessor shall look solely to the assignee for performance under this lease and all obligations hereunder. Lessee may sublease or license all or any part of the property at any time and from 10 Lease Agreement City of Lubbock/Paka Lambro PCS time to time. Lessee may not otherwise assign this lease except upon written consent from Lessor, which consent will not be unreasonably denied or withheld. Additionally, Lessee may mortgage or grant a security interest in this lease and the Lessee Facilities, and may assign this lease (with right of reassignment) and the Facilities to any mortgagees or secured parties, including their successors or assigns ("Mortgagee"). In such event, Lessor agrees to execute such consent to leasehold financing and other loan documentation as may reasonably be required by a Mortgagee. Provided, Lessee or Mortgagee has furnished City the Mortgagee's mailing address, City agrees to notify Mortgagee of the right to cure any default of Lessee and of a request to remove any property of Lessee or Mortgagee located on the Property; except that the cure period for Mortgagee shall not be less than thirty (30) days after the receipt by Mortgagee of the default notice. Failure by City to give Mortgagee such notice shall not diminish City's rights against Lessee, but shall preserve all rights of Mortgagee to cure any default and to remove any property or the Lessee Facilities of Lessee or Mortgagee located on the Property. Q. INDEMNIFICATION AND INSURANCE The City, its officers, agents and employees shall stand indemnified by the Lessee as provided by this agreement. The Lessee shall be deemed to be an independent contractor and operator responsible to all parties for its respective acts and omissions, and the City shall in no way be responsible therefor. In the exercise of the obligations and in the enjoyment of the privileges granted by this agreement, the Lessee shall indemnify and save harmless the City, its officers, agents and employees from any and all losses claims, demands, suits and judgments 11 Lease Agreement City of Lubbock/Poka Lambro PCS whatsoever resulting from any fault or negligence on the part of the Lessee, its agents, employees or invitees. The Lessee shall maintain insurance at all times that this lease is in effect, at Lessee's sole expense and with an underwriter authorized to do business in the State of Texas and acceptable to the City, against claims of general liability, automobile liability and worker's compensation resulting from Lessee's business activities on the Premises. General Liability and Auto Liability Insurance - The amount of insurance coverage shall not be less than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) for Combined Single Limit General Liability Insurance; or less than THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($300,000.00) for Combined Single Limit Auto Liability Insurance. Worker's Compensation and Employers Liability Insurance - Insurance coverage as required by State statute covering all employees whether employed by the Lessee or any subcontractor on the job with at least FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) Employer Liability Coverage. The above mentioned policies shall all include a waiver of subrogation. Certificates of insurance or other satisfactory evidence of insurance shall be filed with the City's Managing Director Water Utilities prior to entry upon the premises by the Lessee. The General Liability and Auto Liability policies shall name the City as an additional insured, require the insurer to notify the Managing Director Water Utilities of any alteration, renewal or cancellation, and remain in full force and effect until at least ten (10) days after such notice of alteration, renewal or cancellation is received by the Managing Director Water Utilities. 12 Lease Agreement City of Lubbock/Poka Lambro PCS R. WAIVER OF LANDLORD'S LIEN City hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Lessee Facilities, or any portion thereof, which shall be deemed personal property for the purposes of this lease, regardless of whether or not the same is deemed real or personal property under applicable laws, and City gives Lessee and Mortgagee the right to remove all or any portion of the same from time to time, whether before or after a default of this lease, in Lessee's and/or Mortgagee's sole discretion and without further notice to or consent from City. ARTICLE SEVEN TERMINATION, CANCELLATION A. TERMINATION This lease shall terminate at the end of the full term hereof and Lessee shall have no further right or interest in any of the premises or improvements hereby demised. B. CANCELLATION Either party shall be in default under this Agreement if the party fails to perform any material duty or obligations under this Agreement and does not cure or remedy such failure to perform within thirty (30) days after receipt of written notice with respect thereto, provided, however, that if such failure to perform shall necessitate longer to cure than thirty (30) days, then such cure period shall be extended for such time as is reasonably necessary to cure such failure to perform, but only so long as such efforts to cure are commenced within fifteen (15) days after receipt of written notice from the other party and thereafter proceed diligently and in good faith. 13 Lease Agreement City of Lubbock/Poka Lambro PCs 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 and any one or more of the following remedies, separately or concurrently or in any combination, without further notice or demand whatsoever: (i) Termination of this Agreement by giving the defaulting party written notice of such termination, in which event this Agreement shall be terminated at the time designated in the notice; or (ii) The recovery from the defaulting party of all costs and expenses incurred by the non -defaulting party in enforcing its rights and remedies under this Agreement, including reasonable attorneys' fees and expenses. This Lease is given by the City and accepted by Lessee upon the express condition that the City shall have the right to cancel the lease upon one (1) year written notice to Lessee after the expiration of the initial term hereof ; and whenever requested so to do by the City, Lessee agrees at Lessee's expense to remove said radio tower and appurtenances and fencing from the Property of the City and restore said Property to the same condition in which it was prior to the placing of said radio tower and appurtenances thereon. In case Lessee shall fail to restore the City's Property as aforesaid within sixty (60) days from lease termination, City may proceed- with roceedwith such work at the expense of Lessee. 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 14 Lease Agreement City of Lubbock{Poka Lambro PCS improvements placed on the leased Property by Lessee are removed and said Property are restored to its original condition as hereinabove required. It is agreed that failure to declare this lease terminated upon the default of Lessee for any of the reasons set forth above shall not be construed as a waiver of any of the City's rights hereunder or otherwise bar or preclude City from declaring this lease cancelled as a result of any subsequent violation of any of the terms or conditions of this lease. ARTICLE EIGHT GENERAL A. CLEANLINESS OF PREMISES Lessee shall, at its sole expense, dispose of all trash, garbage, and other refuse resulting from its business operations authorized by this Agreement. B. RIGHT OF INSPECTION The City reserves the right to conduct inspections of the leased premises at reasonable times to ensure that fire and safety and other provisions contained in this lease are being adhered to by the Lessee. C. TERMINATION OF LEASE, SURRENDER OF LEASED PREMISES AND OWNERSHIP OF IMPROVEMENTS The Lessee covenants and agrees that at the expiration of the initial term of this lease, or any extension which has been granted, or upon earlier termination as provided elsewhere in this agreement, Lessee will quit and surrender the leased premises and the improvements in good state and condition, reasonable wear and tear expected, and the City shall have the right to take 15 Lease Agreement City of Lubbock/Poka Lambro PCS possession of the leased premise as provided in Article Six, Section D, with or without process of law. D. HEADINGS The paragraph headings contained herein are for convenience in reference and are not intended to define, extend or limit the scope of any provisions in this agreement. E. NOTICES A. General. Whenever notice from Lessee to City or City to Lessee is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other parry by hand, (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery), or (3) by deposition the written notice in the United States mail, property addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Lessee's Address. Lessee's address and numbers for the purposes of notice are: Poka Lambro, P.C.S., Inc. Attn: Mickey L. Sims P.O. Box 53118 Lubbock, Texas 79453 Telephone: (806) 744-1267 Facsimile: (806) 924-5300 C. City's Address. The City's Address and numbers for the purposes of notice are: City of Lubbock Attn: Terry Ellerbrook P.O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2585 Facsimile: (806) 775-3207 16 Lease Agreement City of Lubbock/Poka Lambro PCS r ' D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 15' day after such notice is effective. F. ENTIRE AGREEMENT This lease constitutes the entire agreement between the City and Lessee, and any other written or parole agreement with the City is expressly waived by Lessee. EXECUTED this 13th day of may , 1999. THE CITY OF LUBBOCK / �/►" Mayor )ayt EST: Daniell, ity Secretary POKA LAMBRO P.C.S., INC. BY: MICKEY L SIMS General Manager/CEO 17 Lease Agreement City of Lubbock/Poka Lambro PCS APPROVED AS TO CONTENT: Terry lerbrook , Managing Director Water Utilities APPROVED AS TO FORM: M. Knight Assistant City Attorney JMK:cp Cityatt/John/Poka.Agreement May 5, 1999 18 Lease Agreement City of Lubbock/Poka Lambro PCS