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Res 112-2004 8/17/2004RESOLUTION NO. � �D (1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT WITH CHOICE WIRELESS, L.C. FOR THE PLACEMENT OF TELECOMMUNICATIONS EQUIPMENT AT WICHITA FALLS MUNICIPAL AIRPORT; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, Choice Wireless, L. C. desires to place certain telecommunications equipment at the Wichita Falls Municipal Airport, and WHEREAS, the City of Wichita Falls desires to lease to Choice Wireless, L.C. a portion of space on the existing free standing weather tower along with approximately 100 square feet of ground space at Municipal Airport; and WHEREAS, Choice Wireless, L.C. has agreed to lease the above described space for an initial term of five (5) years in which Choice Wireless, L.C. will pay to the City an annual rent of $9,000. Additional one -year terms may be granted with annual rent increased by 15% for the first extended year. Rent for subsequent one -year terms will be mutually agreed to by the parties, but shall not increase by more than 15% in any one year. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SE CTION 1 . The City Manager is hereby authorized to execute the attached lease agreement with Choice Wireless, L.C. for the placement of certain telecommunications equipment at the Wichita Falls Municipal Airport as described above. SE CTION 2 . It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 17'" day of August, 2004. ATTEST: City Clerk LEAS AGRE THIS AGREEMENT, made this day of , 2004, between the City of Wichita Falls (the "LESSOR ") and Choice Wireless, L.C. (the "LESSEE "). WHEREAS, Lessor is the owner or lessee of certain real property located at the Municipal Airport with the address of 4000 Armstrong Drive, Wichita Falls, State of Texas, together an with existing communications tower and buildings situated thereon; and, WHEREAS, Lessee desires to lease a nonexclusive portion of the existing free standing tower at the Municipal Airport on such real property, along with ground space (approximately 100 sq. ft.) sufficient for the placement of the necessary transmitting and receiving broadcast equipment with a grant of a nonexclusive right and easement for ingress, egress, and right -of -way, seven (7) days a week, twenty -four (24) hours a day, (with supervision as defined by Lessor) as hereinafter described (such portion of tower and ground space situated on the real property and such easement and right- of-way hereinafter called the 'property "). The equipment to be installed on the Property is more specifically described in, and substantially shown as outlined on Exhibit "A" attached hereto and made a part hereof'. NOW, THEREFORE, in consideration of the mutual promises contained in the Agreement, and other good and valuable consideration, Lessor and Lessee hereby agree to the following: 1. Initial Term and Ren This Agreement shall be for an initial term of five (5) years beginning on the date of Lessee's telecommunication equipment installation by Lessee or its designated representatives, employees, or contractors, ( "Commencement Date "). The Commencement Date shall occur no later than ninety (90) days following the execution of this contract or this Lease Agreement shall become null and void without further obligation by either party. The initial lease term shall be at an annual rental of Nine Thousand Dollars and no/ 100 ($9,000.00) payable in monthly installments of $750.00 per month. If the commencement date is on a date other [ban the first of a calendar month, LESSEE shall make a prorated payment of the installment of the annual rental payable for the first month. Thereafter, the monthly rental payment shall be due and payable on the first (1 ") of each month at LESSOR'S address as set forth in this agreement or such other address as provided by LESSOR to LESSEE in writing from time to time. 2. Con of Lease. Additional lease terms clone (1) year and at annual terms thereafter until terminated by either party by giving to the other written notice of its intention to terminate at least six (5) months prior to the end of any such annual term. Monthly rental shall be increased 15% over the initial tern rent paid for the fast extended year term to $10,350.00 annually. Such rent shall be payable monthly as during the initial term. Rental for subsequent years, if any, will be at a rate mutually agreed to by the parties, but shall not increase by greater than 15% in any one year. 3. Title. LESSOR warrants that LESSOR is seized of good and marketable title to the Property and has full power and authority to enter into and execute this Agreement. LESSOR further warrants that there are no deeds to secure debt, mortgages, liens, judgments, restrictive covenants, or other encumbrances on the title to the Property that would prevent LESSEE from using the Property for the use intended by LESSEE as hereinafter set forth in this Agreement. LESSEE shall have the right to survey the property at its own expense should LESSEE decide such is necessary. 4. Govern App LESSEE's ability to use the Property is contingent upon its obtaining all certificates, permits, licenses and other approvals that may be required by any governmental authorities. If at any time during the term of this Agreement LESSEE is unable to use the Property for a Communications Facility in the manner intended by LESSEE, this Agreement may be immediately terminated and shall become null and void and LESSOR and LESSEE shall have no other further obligations to each other, other than LESSEE'S obligation to remove its property. 5. Uti Service During the term of this Agreement, LESSOR shall cooperate with LESSEE in LESSEE's efforts to obtain utility services to the Property. LESSEE will pay for all cost associated with the installation of the electrical service and meter to its facility as well as the monthly cost of electrical service. LESSEE shall at its own cost and expense have an electrical meter and equipment installed on the property for the operation of the Communications Facility and shall pay the cost of the electricity for operating its facility . 6. Use. LESSEE shall use the Property for the purpose of constructing, maintaining and operating a communications facility and uses incidental thereto, which may consist of such facilities as are necessary to house telecommunications equipment and for antenna structure of sufficient type, as determined by LESSEE, now or in the future to meet LESSEE'S telecommunication needs and all cable, wiring and supports and all necessary appurtenances thereto (collectively, the "Communications Facility"). All improvements to the Property necessary for LESSEE'S use shall be made at LESSEE's expense. LESSOR grants to LESSEE the right to use all outdoor common areas such as rooftops, hallways, stairways, parking lots, and such other areas as are reasonably required during construction and installation and to maintain and operate the Communications Facility mentioned herein. LESSOR also grants to LESSEE limited access to the building on the property as necessary and reasonably required during construction and installation and to maintain and operate LESSEE's Communications Facility. To gain such access, LESSEE must first coordinate with the party designated by the City of Wichita Falls. LESSOR further acknowledges that LESSEE may desire to change equipment in the future in order to accommodate increased customer capacity and as additional advances of telecommunications equipment and technology are made. In the event this Communications Facility no longer meets its intended purpose for any reason, this Lease Agreement may be terminated with six months advance written notice to LESSOR at any time LESSOR may likewise terminate the lease at any time for any reason, or for no reason by giving six months advance written notice to LESSEE. For the purposes of this agreement, LESSEE shall install three (3) antennas and small amplifiers to the free standing tower at the Municipal Airport below the weather radar unit all connected by 1 5/8" coaxial cables to the broadcast equipment. Any additions to the antennas cannot be made without the consent of LESSOR. 7. Indem LESSEE, at its own expense, shall maintain at all times during the term of this Agreement a comprehensive general liability insurance policy with limits of at least One Million Dollars ($1,000,000.00) per occurrence and in the aggregate, and shall name LESSOR as an additional insured on such policy. LESSEE shall furnish such evidence as LESSOR may reasonably require of the existence of the insurance coverage including, not limited to, a certificate of insurance. LESSEE also agrees to hold LESSOR harmless from any and all claims made in connection with this lease, LESSEE'S property on the premises or LESSEE'S operations on the leased property, including, but not limited to court costs, attorneys' fees or insurance deductible payable by LESSOR. 8. Rem of Imp Title to all improvements constructed or installed by LESSEE on the Property shall remain in LESSEE and all improvements constructed or installed by LESSEE shall at all times be and remain the property of LESSEE, regardless of whether such improvements are attached or affixed to the Property. LESSEE upon termination of this Agreement, shall within a reasonable period (but in no event longer than 30 days), remove all improvements, fixtures and personal property constructed or installed on the Property by LESSEE and restore the Property to its original above grade condition, reasonable wear and tear excepted. If such removal causes LESSEE to remain on the Property after termination of this Agreement, LESSEE shall pay rent at the then existing monthly rate, or on the existing monthly pro rata basis if based upon a longer payment tern, until such time as the removal is completed. 9. Quiet En joyment. LESSOR covenants that LESSEE on paying the rental and performing the covenants, terms and conditions required of LESSEE contained herein, shall peaceably and quietly have, hold and enjoy the Property and the leasehold estate granted to LESSEE by virtue of this Agreement. 10. Assignment. This Agreement may be sold, assigned, transferred, or subleased at any time by LESSEE to LESSEE's parent company or any affiliate or subsidiary of LESSEE or its parent company, to any entity with or into which LESSEE is merged or consolidated, or to any entity resulting from reorganization of LESSEE or its parent company. Otherwise, this Agreement may not be sold, assigned, transferred, or subleased without the written consent of LESSOR, such consent not to be unreasonably withheld. 11. Condemnation If the whole of the Property or such portion thereof as will make the Property unusable for the purpose herein leased, is condemned by any legally constituted public authority, then this Agreement and the term hereby granted, shall cease from the time when possession thereof is taken by the public authority, and rental shall be accounted for as between LESSOR and LESSEE as of that date. Any lesser condemnation shall in no way affect the respective rights and obligations of LESSOR and LESSEE hereunder. However, nothing in this paragraph shall be construed to limit or adversely affect LESSEE's right to an award of compensation from any condemnation proceeding for the taking of LESSEE's leasehold interest hereunder or for the taking of LESSEE's improvements, fixtures, equipment and personal property. 12. Subordination At LESSOR's option, this Agreement shall be subordinate to any deed to secure debt or mortgage by LESSOR which now or hereafter may encumber the Property, provided that no such subordination shall be effective unless the holder of every such deed to secure debt or mortgage shall, either in the deed to secure debt or mortgage or in a separate agreement with LESSEE, agree that in the event of a foreclosure, or conveyance in lieu of foreclosure, of LESSOR's interest in the Property, such holder shall recognize and confirm the validity and existence of this Agreement and the rights of LESSEE hereunder, and this Agreement shall continue in full force and LESSEE shall have the right to continue its use and occupancy of the Property in accordance with the provisions of this Agreement as long as LESSEE is not in default of this Agreement beyond applicable notice to cure periods. LESSEE shall execute in a timely manner whatever instruments may reasonably be required to evidence the provisions of this paragraph. In the event the Property is encumbered by a deed to secure debt or mortgage on the date of the exercise of the Option, LESSOR no later than ten (10) days after the Option has been exercised, shall obtain and furnish to LESSEE a non - disturbance agreement in recordable form from the holder of each deed to secure debt or mortgage. 13. _H azardous Substances. LESSOR represents and warrants that to the best of its knowledge there are no hazardous substances present or located on, under or around the Property or LESSOR's Surrounding Property. 14. 0 tlno to C ure. If LESSEE should fail to pay any rental or other amounts payable under this Agreement when due, or if LESSEE should fail to perform any other of the covenants, terms or conditions of this Agreement, prior to exercising any rights or remedies against LESSEE on account thereof, LESSOR shall first provide LESSEE with written notice of the failure and provide LESSEE with a ten (10) day period to cure such failure (if the failure is a failure to pay rental or any other sum of money under this Agreement) or thirty (30) day period to cure such failure (if failure is a failure to perform any other covenant, term or condition of this Agreement). If the failure is not a failure to pay rental or any other sum of money hereunder but is not capable of being cured within a sixty (60) day period, LESSEE shall be afforded a reasonable period of time (not exceeding 90 days) to cure the failure provided that LESSEE promptly commences curing the failure after the notice and prosecutes the cure to completion with due diligence. 15. G overning La w. This Agreement shall be governed and interpreted by, and construed in accordance with the laws of the State of Texas. 16. Notices. All notices hereunder must be in writing and shall be deemed validly given on the date when deposited in the United States mail, by certified mail, return receipt requested, addressed as follows (or to any other address that the party to be notified may have designated to the other party by like notice at least ten (10) days thereto): LESSEE: Choice Wireless L.C A ttention: Andy Dickerson 1501 Midwestern Pkwy. Suite 105B Wichita F alls TX 76302 C940)_692, LESSOR: Ci Wic hita Falls Attention: Pat Hoffman P.O. Box 1431 Wichita Falls. Texas 76307 t940A 761 -8816 __ 17. B inding - Effo rt. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns of LESSOR and LESSEE and shall constitute covenants running with the land. 18. Mi scellaneous. This Agreement cannot be modified except by a written modification executed by LESSOR and LESSEE in the same manner as this Agreement is executed. The headings, captions and numbers in this Agreement are solely for convenience and shall not be construing or interpreting any provision of this Agreement. Wherever appropriate in this Agreement, personal pronouns shall be deemed to include other genders and the singular to include the plural, if applicable. This Agreement contains all promises, statements, assertions or representations by LESSOR or LESSEE or any employees, agents, contractors or other representations of either, shall be binding upon LESSOR and LESSEE. 19. Interfere LESSEE's Communications Facility shall not disturb the communications configurations, equipment and frequencies, if any, that exist on LESSOR's property on the Commencement Date ( "Preexisting Communications "), and LESSEE's Communication Facility shall comply with all noninterference rules of the Federal Communications Commission ( "FCC "). LESSOR shall use reasonable efforts to not permit any new use on any portion of LESSOR's property as may now exist and may exist in the future which would unreasonably interfere with the communications operations of LESSEE's Communications Facility. LESSEE shall be responsible for all testing needed to confirm that LESSEE's communications frequencies are compatible with Pre - existing Communications if any are installed on LESSOR's facilities on the Commencement Date and that no interference exists between the various communications equipment and frequencies. LESSOR will use reasonable efforts to require any new lessee to abide by provisions similar to this Paragraph 19 but will not be liable for monetary damages or equitable relief for interference caused by existing or future communications equipment or frequencies used on LESSOR's building. 20. Waive and Disclaimer Memora Lease At the request of LESSEE or LESSEE's lenders, LESSOR shall execute such documents as are reasonably requested by LESSEE from time to time for the purpose of releasing, waiving or disclaiming any interest of LESSOR in and to the equipment of LESSEE. In addition to the foregoing, at LESSEE's request and expense (including reimbursement of reasonable out -of- pocket expenses incurred by LESSOR hereunder), LESSOR agrees to execute a memorandum of lease in a form suitable for recording and acceptable to LESSOR and LESSEE. LESSEE agrees to provide LESSOR with a certified copy of any such memorandum following any recordation of the same. IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their respective seals the day and year first above written. LESSOR: City of Wichita Falls LESSEE: Choice Wireless, L.C. By: — By: Name: Name: Tim Humpert Title: Title: President STATE OF TEXAS COUNTY OF WICHITA 2004 6 the City This instrument was acknowledged before me on the day of Y the of Wichita Falls, State of Texas, on of the City. (SEAL) STATE: OF TEXAS COUNTY OF WICHITA Notary Public, in and for The State of Texas This instrument was acknowledged before me on the day of 2004 by Tim Humpert, President of Choice Wireless, L.C., a Texas corporation, on behalf of such corporation. (SEAL) Notary Public, in and for The State of Texas