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HomeMy WebLinkAbout028671 ORD - 07/06/2010ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE "1ST AMENDMENT TO LEASE AGREEMENT" (ATTACHED) WITH NEW CINGULAR WIRELESS PCS, LLC (TO AMEND THE EXISTING LEASE OF CITY PROPERTY FOR CELL TOWER USE BY: (1) DEFINING THE CONSUMER PRICE INDEX TO BE THE ALL URBAN CONSUMERS, HOUSTON-GALVESTON-BRAZORIA, ALL ITEMS INDEX; (2) GIVING LESSEE THE RIGHT TO GRANT "CO - LOCATING USE LICENSES" TO PORTIONS OF THE LEASED PREMISES; (3) REQUIRING LESSEE TO PAY THE CITY AN ANNUAL FEE OF $9,600 PER LICENSEE; (4) REPLACING LESSEE'S NAME AND ADDRESS FROM SOUTHWESTERN BELL MOBILE SYSTEMS, INC. TO NEW CINGULAR WIRELESS PCS, LLC; AND (5) KEEPING INTACT ALL OTHER TERMS OF THE LEASE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. The City Manager or his designee is authorized to execute "1St Amendment to Lease Agreement" (attached) with New Cingular Wireless PCS, LLC (originally executed in 1994 by SMSA Limited Partnership/ Southwestern Bell Mobile Systems, Inc., and authorized by City Council Ordinance 021867 on February 8, 1994, to lease city property for cell tower use) to amend the existing agreement to (1) define the Consumer Price Index to be the All Urban Consumers, Houston-Galveston-Brazoria, All Items Index; (2) give Lessee the right to grant co -locating use licenses to portions of the Leased Premises; (3) require Lessee to pay the City an annual fee of $9,600 per Licensee; (4) replace Lessee's name and address in the notice provision from Southwestern Bell Mobile Systems, Inc. to New Cingular Wireless PCS, LLC; and to (5) keep intact all other terms of the Lease. ATTEST: Armando Chapa City Secretary Mayor Approved as to legal form: 28 -May -10 THE CITY OF CORPUS CHRISTI Joe Adatue By: Veronica Ocanas Assistant City Attorney for City Attorney 028671 INDEXED The foregoin ordinance was read for the first time and passed to its second reading on this the � day of , 2010, by the following vote: �X�- Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott The ffooregoing ordinance was read for the second time and passed finally on this the day of Joe Adame Chris N. Adler Brent Chesney Larry Elizondo, Sr. Kevin Kieschnick , 2010, by the following vote: Priscilla G. Leal John E. Marez Nelda Martinez Mark Scott PASSED AND APPROVED this the 4 day of cat , 2010. Armando Chapa City Secretary APPROVED as to form: 6 -May -1 By: Veronica Ocanas Assistant City Attorney for City Attorney Joe AVWA-gAI-4,110L e Mayor 028871 1s1 Amendment to LEASE AGREEMENT THIS 15` AMENDMENT TO LEASE AGREEMENT ("Amendment") dated as of the later date below (the "Effective Date") is by and between The City of Corpus Christi, having a mailing address at P.O. Box 9277, City Hall, 1201 Leopard, Department of Engineering Services, Property Management Division, Corpus Christi, TX 78469-9277 (hereinafter referred to as "City") and New Cingular Wireless PCS, LLC, a Delaware limited liability company, having a mailing address at 12555 Cingular Way, Suite 1300, Alpharetta, GA 30004 (hereinafter referred to as "Lessee"). WHEREAS, City and Corpus Christi SMSA Limited Partnership of Nueces County, Texas entered into a twenty year Lease Agreement with options to renew dated February 8, 1994 authorized by City Council Ordinance 021867 on February 8, 1994 (the "Lease"), attached and incorporated herein as Attachment #1, of city property located at the Whitecap Waster Water Treatment Plant site, 13402-B Whitecap Boulevard, Corpus Christi, Texas ("Leased Premises"); and WHEREAS, City and Lessee desire to amend the Lease to allow Lessee the right to grant co - locator use licenses ("Co -Locator Use Licenses") to portions of the Leased Premises upon providing written notice to the City, but not requiring prior written approval of the City. Each Licensee (hereinafter defined) shall be subject to the same terms and conditions as required of the Lessee; and WHEREAS, City and Lessee desire to amend the Lease to increase the rent amount Lessee owes the City by an amount of $9,600 annually for each Licensee which occupies the Leased Premises and Lessee's radio transmission facility; and WHEREAS, City and Lessee desire to amend the Lease to specify that the Consumer Price Index by which the lease amount is adjusted each year is the Consumer Price Index, All Urban Consumers, Houston-Galveston-Brazoria, All. Items; and WHEREAS, City and Lessee desire to clarify that New Cingular Wireless PCS, LLC is the current Lessee, successor -in -interest to the original Lessee, Corpus Christi SMSA Limited Partnership, of Nueces County, Texas; and WHEREAS, City and Lessee desire to amend the Lease to show New Cingular Wireless PCS, LLC as the name and address for notices; NOW, THEREFORE, in consideration of the mutual covenants herein, the Parties agree to amend the Lease as follows: 1. Amendments to Section 1(a). Subsection "a" of section la of the Lease is hereby amended as follows: (1) by inserting "All Urban Consumers, Houston-Galveston-Brazoria, All Items" and renumbering "a" to "a-1" as shown: 1. In consideration of this Lease, Lessee shall: a-1. Pay to the City, upon execution of this instrument, the sum of $2,400.00. Annually, thereafter, prior to the anniversary date of this instrument, pay to the City the lease amount ($2,400) as adjusted each year to reflect either the percentage change in the Consumer Price Index, All Urban Consumers, Houston-Galveston- Brazoria, All Items, as published by the U.S. Bureau of Labor Statistics or six (6%) percent whichever is smaller. (2) by inserting after Subsection "a-1" the following new section a-2: a-2. City agrees that, upon providing written notice to the City, but without the prior written consent of the City, Lessee may, in its sole discretion, grant to other wireless communication companies ("Licensees") the right to use of a portion of the Leased Premises. Co -Locating Fees. In the event that Lessee grants a Co -Locator Use License to another wireless communication company, for each Licensee, Lessee shall pay annually to the City a fee of Nine Thousand and Six Hundred ($9,600) Dollars per year, as adjusted each year to reflect either the percentage change in the Consumer Price Index, All Urban Consumers, Houston-Galveston-Brazoria, All Items, as published by the U.S. Bureau of Labor Statistics or six (6%) percent whichever is smaller (the "Co -Locating Fees"). When Co -Locator Fees Become Due to the City. Co -Locating Fees shall become due to the City immediately upon execution of the Co - Locator Use License Agreement between Lessee and Licensee and/or upon Licensee's installation of equipment to the Facilities. Copy of Agreement to City. Lessee must provide the City with written notice of each Licensee co -locating on the Leased Premises and a copy of each Co -Locator Use License Agreement immediately after its execution. Responsibility of Lessee to pay City. Lessee shall be solely responsible for all annual payments due the City. Responsibility of City. City shall cooperate, at Lessee's or Licensees' cost and expense, as the case may be, in the timely execution of any documents 2 necessary or desirable in the reasonable judgment of Lessee or Licensee to use and enjoy the Leased Premises. City's failure to timely execute any documents or provide any information or materials reasonably necessary to allow Lessee and/or Licensees to use the Leased Premises as described herein shall be considered a default by City under the Lease. City shall cooperate with Lessee and Licensee in Lessee's or Licensee's obtaining governmental and other use permits or approvals necessary or desirable for Licensee's permitted use; all such permits and approvals will be obtained at no cost to or expense of City. 2. Amendment to Section 3. City and Lessee agree that Section 3 of the Lease is hereby revoked and deleted in its entirety. 3. Amendments to Section 18. Section 18 of the Lease is hereby amended by deleting and replacing "Southwestern Bell Mobile Systems, Inc. (General Partner), 1022 Grubb Road, San Antonio, Texas 781219" with the following: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration 12555 Cingular Way — Suite 1300 Alpharetta, GA. 30004 Re: Cell Site 64224; Cell Site Name: STX 5495 9525/Galleon Bay (TX) FA# 10009552 with a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Department 15 East Midland Avenue Paramus, NJ 07652 Re: Cell Site 64224; Cell Site Name: STX 5495 9525/Galleon Bay (TX) FA# 10009552 4. Terms Remaining. Except as expressly set forth in this Amendment, the Lease otherwise is unmodified and remains in full force and effect. [INTENTIONALLY LEFT BLANK] [SIGNATURES TO FOLLOW] 3 EXECUTED IN DUPLICATE each of which shall be considered an original on this day of , 2010. CITY OF CORPUS CHRISTI 'Angel R. Escobar City Manager ATTEST: Armando Chapa City Secretary APP,ROVED AS TO LEGAL FORM on the Veronica Ocanas Assistant City Attorney for City Attorney 4 New Cingular Wireless PCS, LLC By: AT&T Mobility Corporat Its: . nager Type Name: Neil C. Boyer Title: Director, Network y of 2010 LEASE AGREEMENT THE STATE OF TEXAS § COUNTY OF NUECES § THIS AGREEMENT, made and entered into this, S day of 199, by and between the City of Corpus Christi, Texas, a municipal corporation, he after called "City", and Corpus Christi SMSA Limited Partnership, of Nueces Coun , Texas, hereinafter called "Lessee". WITNESSETH: The City of Corpus Christi does by these presents lease unto Corpus Christi SMSA Limited Partnership a 50 -foot by 50 -foot tract out of Lot 1, Block 2, Point Tesoro, unit 5 as recorded in Volume 38, Pages 32 and 33, Nueces County Map Records, as shown by map reference on attached Exhibit "A" and more fully described by the metes and bounds description an attached Exhibit "B", both made a part hereof for all purposes; for a term of 20 years and renewable for a maximum of four successive ten year terms commencing 60 days after final approval by the City Council, subject to the following consideration, covenants, and conditions, to -wit: I. In consideration of this lease, Lessee shall: a. Pay to the City, upon execution of this instnimcnt, the sum of 011100 Annually, thereafter, prior to the anniversary date of this instrument, pay to the City the lease amountas adjusted each year to reflect either the percentage change the Consumer Price Index as published by the U.S. Bureau of Labor Statistics or six percent, whichever is the smaller. b. Construct, or cause to be constructed, a new gate in the existing fence at the location shown on the attached Exhibit "A". Gate to be of similar width and construction as existing gate. c. Construct the equipment building in the same or similar architectural style as the existing buildings of the adjacent Whitecap Wastewater Treatment Plant (stucco walls and red tie roof). d. Said rent shall be delivered or mailed to: City of Corpus Christi P.D. Box 9277 1201 Leopard Street Collections Section Corpus Christi, TX 78469-9277 2. It is understood and agreed that the leased premises are to be used for the construction, operation, and maintenance of a radio transmission facility consisting of an eighty (80) foot, three sided tower along with a 12'x26' equipment building, together with antennas, wires, cables, hardware, and other appurtenances deemed necessary by Lessee in the provision of cellular telephone service within Corpus Christi and its environs. Said premises are not to be used for any purpose other than these herein specified without the prior written consent of the City. Said tower shall be constructed so as not SCANNED to constitute an obstruction to aerial navigation. IT is further understood and agreed that Lessee shall access the leased premises by means of a 20 -foot wide access easement extending directly from Whitecap Boulevard right-of- way. 1f for any reason that access is ever denied Lessee, then the City shall provide another way or means or access by motor vehicle to the leased premises within a reasonable period of time not to exceed fourteen (14) days. 3. Lessee agrees not to sublet or assign leased premises or any portion thereof without the prior written consent of the City. 4. Lessee shall be responsible for acquiring all federal, state and local permits required in order to construct the facility. 5. All action by the City in connection with the performance of this contract, including notices to the City, shall be by and to the City Manager or a person designated by him. 6. It is understood that the City reserves the right to sell, use or lease for a use different from the present use, all or any part of the herein leased premises at anytime during the term of this lease provided, however, that the City shall protect lessee's interest in and right to use said leased premises for five (5) years from the date of this agreement. After five (5) years, should the property be sold, used or leased before the expiration date hereof and the purchaser or Lessee not be willing to take the same subject to this lease and demands iml iediate possession, then the Lessee agreesto vacate and give possession at any time within three hundred sixty five (5) days after receipt of notice to vacate. The City will endeavor to provide an alternate location within Lots 1 and 2, Block 2, Point Tesoro, Unit 5, but makes no guarantee of availability. 7. Lessee may terminate lease by giving City ninety (90) days notice and removing any and all improvements placed on said premises by Lessee and restoring the ground surface of the leased premises as near as reasonably possible to its condition prior to construction. 8. The Lessee agrees that Lessee will pay for any and all damages to any utility lines or equipment located on said land which may be incurred by Lessee's operations or to replace all such lues injured or destroyed as a result of Lessee's operations. • 9. The Lessee agrees to pay for all utilities that Lessee uses at the premises being leased by Lessee. Lessor understands and agrees that Lessee requires both electric and telephone facilities at the leased premises for the conduct of its business. 10. The Lessee agrees that Lessee will take good care of the leased premises and its appurtenances, and suffer no wastes, and shall keep the leased premises Lease Agreement Corpus Christi SMSA Limited Partnership Page 2 of 5 in good repair at Lessee's own expense, and at the end of the expiration of the term of this lease, shall deliver up the leased premises in as good order and condition as same are now in, natural wear and tear and damage from the elements only excepted. 11. The Lessee agrees not to use the leased premises for any illegal or immoral purposes and agrees to conform to all the laws of the State of Texas, the United States, and all rules set out by the City Manager of the City of Corpus Christi, Texas, for the operation of the leased premises. 1.2. The Lessee shall not permit malt, vinous, or alcoholic beverages on the leased premises. 13. The Lessee shall promptly execute and fulfill all the ordinances of the City of Corpus Christi applicable to said leased premises, and all orders and requirements imposed by the Health, Sanitation, and Police Departments of the City, for the correction, prevention and abatement of nuisances in, upon, or connected with the leased premises during the term of this lease at Lessee's own expense. 14. The City reserves the right to enter the leased premises at any time during the existence of this lease for the purpose of inspecting the same in order to determine whether the terms of said lease are being observed and carried out provided that said entry does not unreasonably disrupt the conduct of Lessee's business. 15. The Lessee further agrees that in case of any default in any of the covenants and conditions of this lease, the City may enforce the performance thereof in any modes or manner provided by law. The Lessee will have 30 days from receipt of notice to correct any default. If such default is not corrected in said 30 days, then the City may declare the lease forfeited at its discretion and it, its agents, or attorney shall have the right, without further notice or demand, to re-enter and remove all persons therefrom, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or breach of covenant, or the City, its attorneys or agents, may resume possession of the leased premises and relet the same for the remainder of the term of this lease at the best rent they may obtain, for the account of the Lessee, who shall make good any deficiency. 16. The Lessee shall fully indemnify, save and hold harmless the City of Corpus Christi, its officers, employees and agents (hereinafter called "the Indemnitees") against any and all liability, damage, loss, claims, demands and actions of any nature whatsoever on account of personal injuries (including, without limitation on the foregoing, workers' compensation and death claims), or property toss or damage of any kind whatsoever, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any way connected with, the performance of this agreement, unless such injury, loss Lease Agreement Corpus Christi SMSA Limited Partnership Page 3 of 5 or damage shall be caused by the sole negligence of Indemnitees. Lessee shall, at Lessee's own expense, investigate all such claims and demands, attend to their settlement or other disposition, defend all actions based thereon and pay all charges of attorneys and all other costs and expenses of any kind arising from any such liability, damage, loss, claims, demands and actions. 17. The City shall have the right at any and all times of ingress, egress, and regress on and over the leased premises for the purpose of conducting and carrying on any business incident to other activities of the said City, provided, however, that the City will give Lessee reasonable notice and make every reasonable effort to limit such access to the leased premises during normal business hours. 18. Any notice or other communication from either party to the other in regard to this agreement shall be deemed sufficiently given if sent by certified mail, with postage and fees paid, addressed to the party intended, at the following address: City of Corpus Christi P.O. Box 9277 City Hall - 1201 Leopard Department of Engineering Services Property Management Division Corpus Christi, TX 78469-9277 Southwestern Bell Mobile Systems, Inc. (General Partner) 1022 Grubb Road San Antonio, TX 78219 19. This lease is made and accepted subject to all ad valorem taxes that may be levied and assessed on the herein described leased premises during the term of this lease, the payment of which is hereby assumed by Lessee. 20. By Lessee's execution thereof, Lessee acknowledges that Lessee has read this agreement and understands that this agreement is not binding on the City until properly authorized by the City Council and executed by the City Manager of the City of Corpus Christi, Texas. WITNESSED the execu hereof in d 'tate originals, each of which is to be considered as an original, this j day of , 19911. Lease Agreement Corpus Christi SMSA Limited Partnership Page 4 of 5 ATTEST: City Secretary APPROVED: aD day of tQcfr7 [ , 1993 L ' 1LL Assistant Ci okitcuu Attorney lWitloPiIw gY COUCH. _a/0Y SECIETAIY CITY OF CORPUS CHRISTI By: ae-4 rr� City agger Corpus Christi SMSA Limited Partnership (Lessee) By its G eral Partner Southw rn Bell Mobil > Systems, Inc. By. Nancy gin Vice ' esident - General Manager ATTEST: By: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF NUECES § Thisinstrumentwas ackuowledgedbefore me on/ v ,1993, 6y Nom' j r f # City Manager of the City of Corpus Christi, a ■ exas municipal corporation, on behalf of said corporation. Notary Public, Stat Texas ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF NUECES § This instrument was acknowledged before me on itm......hera,.. 1993, by Nancy Faegin as Vice President - General Manager f Southwestern Bell Mobile Systems, Inc., a Texas corporation, on behalf of said corporation, and the corporation acknowledged this instrument as general partner on behalf of Corpus Christi SMSA Limited Partnership, a Texas limited partnership. Lease Agreement Corpus Christi SMSA Limited Partnership Page 5 of 5 4 k.,/ ; r- Puc, State of Texas EXHIBIT "B" Being all that part of Lot 1, Block 2, Point Tesoro, Unit 5, as recorded in Volume 38, Pages 32 and 33, Nueces County Map Records, and more particularly described as follows: Beginning at a point on the northwesterly line of Lot 1 which is 527°49'21"W, 90 feet from the most northerly corner of Lot 1; Thence S 62°10'39" E, a distance of 50.0 feet; Thence S 27°49'21" W, a distance of 60.0 feet; Thence N 62°10'39" W, a distance of 50.0 feet; to a point on the northwesterly line of Lot 1; Thence N 27°49'21" E, a distance of 60.0 feet along the northwesterly line of Lot 1 to the point of beginning, and containing 3,000.0 square feet more or less, together with a 20 -foot wide access easement across the intervening portion of Lot 1 which lies between, the lease area and the Whitecap Boulevard right-of-way.