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HomeMy WebLinkAboutC2010-229 - 7/6/2010 - Approved 1st 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 Carpus 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 Iiability 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, 1.994 authorized by City Council Ordinance 021867 on February S, 1994 {the "Lease"), attached and incorporated herein as Attachment #1, of city property located at the Whitecap Waster Water Treatment Plant site, 13402-8 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: 2010-229 Ord. 028671 0710b110 New Cingular Wireless PCS INDEXED (I) 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-l.. 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, Ail Items, as published by the U.S. Bureau of Labor Statistics or six (b%) 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 Ciry, 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,b00) 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. Co of A reernent to Cit .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. Res onsibilit of Lessee to a Cit .Lessee shall be solely responsible for all annual payments due the City. Responsibili~ of Cif. 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 CinguIar Wireless PCS, LLC Attn: AT&T Legal Department 15 East Midland Avenue Paramus, NJ 07652 Re: Cell Site 64224; Cell Site Narne: STX 5495 95251Galleon 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 DU LICATE each of which shall be considered an original on this CO ~ciay of 2010. CITY OF CORPUS CHRISTI New Cingnlar Wireless PCS, LLC By: AT&T Mobility Corporatio r Its: Mana G~~""~ ' el .Escobar Type Name: ~j~ ~, City Manager Title: i~~l~t~r. wot....,~ ATTEST: ., r~ ~ mUTHORILtD ~' COfJ'lVfiIL ....~ ~_~~,~. ~ 0 ......~ Armando Chapa ~ ~j City Secretary ~F~~~.RR ~ AP ROVED AS TO AL FORM on the''day of 2010 IVY Veronica Ocanas Assistant City Attorney for City Attorney 4 ATTACHMENT #1: Lease Agreement LEASE AGP;E.I:;MENI' 'THE STATE OF TEXAS § COUNTY OF NUECES ~ THIS AGREEMENT, made and entere~3 iota this. ~. day of,~ 199,; by and between the City of Corpus Christi, 7: x;xas, a municipal corporation, he ~ after caIled "City", and Corpus Christi,SMSA Limiteal Partnership, of Nueces Conn ,Texas, hereinafter called "Lessee", yVITNESSI'sTH: The City of Corpus Christi sloes by these ip3~esemts lease un#a Corpus Christi SMSA Limited Partnership a 50-foot by 60-foot tract out of Lot 1, SIock 2, Point Tesoro, Unit S as recorded in Volume 38, Pages 32 and 33, Nui~~; County Map Records, as shown by map reference on attached Exhibit "A" and more filly descra'bed by the metes and bounds .description on attached Exhibit "B", both made a part hereof for all purposes; for a term of ZQ years cad renewable for a maximum of i'our successive ten year #erms commencing 60 days after final approval by the City Counc%!, subject to the fallowing consideration, covenants, and conditions, to-wit: ' 1. In consideration of this lease, Le;ss~.t. shall: a. Pay to the City, upon execution of this instrument, the sum of Annually, ther:;after, prior to the annivexsary date of this instrument, pay to the Qty tl;e: lease amoun~as adjusted each year to reflect either the ~perventage change xn the Consumer Pace Index as published by the iJ.S. Bureau of Labor Statistics or si$ percent, whichever is the smaller. ' b. Construct, or cause to be construe#ed, a new gate in the existing fence at the location shown oa tb,e attached Exhibit "A". Gate to be of similar width and constructicir~ as existing gate. c. Construct the equipment building in the same or similar architectural style as the existing budding;s of the adjacent Whitecap Wastewater Treatment Plant {stucco wsllls and red file roof}. d. Said rent shall be delivered ~~y- mailed to: City of Corpus Christi P.O. Boa 9277 1?Al Leopard Street Collections Section Corpus Christi, TX 78469-92T7 2. It is understood and agreed that the leased premises are to be used for the construction, operation, and mainte;uance of a -radio transmission facility consisting of an eighty (80) foot f:~.ree sided ~ tower along with a 12'x26' equipment building, together withh antennas, wires, cables, hardware, and other appurtenances deemed necess,a~ry by Lessee in the provision of cellular teieph~one service withim Carpus C`h~ri~sti and its environs Said premises are not to be used for any purpose o#Y;er than these herein specified without the prior written consent of the City. S;aiid tower shall be constructed so as not to constitute an obstruction to aerial navigation. IT is further understood and agreed that Lessee shall access the leased premises by means of a z~-foot wide access easement extending directly from Whitecap Boulevard right-of- way, if for any reason that acce:s;s is ever denied Lessee, then the City shall provide another way or means ar access by motor vehicle to the leased premises within a reasonable period of tinge not to exceed fourteen (1~4) 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 ~respansible fv~r E~cc}uiring all federal, state and local permits required in order to construct tBte facility. 5. All action by the City in cvnnet:tion with tlke 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 rase:rves the right tv sell, use or lease for a use different from the present use, all or any part of tike herein leased premises at anytime during the term of tlbi:~ )least provided, however, that the City shall protect lessee's interest in and right to use said (eased premises for five (5) years from the date of this agreemen#. After five (5) years, should the property be sold, used or leas+:d 1~efore the expiration date hereof and the purchaser or Lessee not be willing; to take the same subject tv this lease and dekpands im~kediate possession, tllien the Lessee agrees to vacate and give possession at anytime within t~ire;e, hundred sixty~~five (3~5) days after receipt of notice #a 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 avadabdity. 7. Lessee may terminate lease by ,giving City ninety (9Q) days notice and removing any and all improvements placed on said premises by Lessee and restoring the ground surface of the leased premise$ as near as reasonably possible to its condition prior too construction. 8. The Lessee agrees that Lessee will pay for any and alI damages to any utility lines or equipment located on ,said land which may be incurred by Lessee's operations or to replace all such lines injured or destroyed as a result of Lessee's operations. 9. The Lessee agrees to pay for all Futilities that Lessee uses at the premises being leased by Lessee. Lessor u:nrderstands and agrees that Lessee requires both electric and telephone facilities at the leased premises for the conduct of its business. lU. The Lessee agrees tha# Lessee r~rill take good care of the Ieased 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 awn exl~i,nse, and at the end of the expiration of the term of this lease, shall delivex 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. 1~. The Lessee agrees nat to use the leased premises for any illegal or immoral purposes and agrees to conforirt i:o 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 o'f the leased prenuses. 12. The Lessee shall not permit malt, v;in~ous, or alcoholic beverages an the leased premises. . 13. The Lessee shaII promptly execute a:nd 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, preve:n~tion and abatement of nuisances in, upon, ar connected with the leased Frrc~nisey during the tenor of this lease at Lessee's own expense. lk~. 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 s~~icl :lease are being observed and carried out provided that said entry does :acct unreasonably disrupt the conduct of Lessee's business. 15. The Lessee further agrees that in ca~.~e of any default in any of the covenants and conditions of this lease, the C'it;~:may enforce the performance thereof in any modes or manner provided by i~cw. The Lessee wtil have 3Q clays 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 atl ~p~arsons therefrom, without being deemed guilty of any manner of trespass ,an,d~ without prejudice to any remedies for arrears of rent or breach of coveman.t, 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 ;m;sPce 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 1Gsbility, damage, loss, claims, demands and actions of any astute whatsoever on account of personal injuries (including, without limitation nn the foregoing;, workers` compensation and death claims), or property loss or damage of any ldin~d whatsoever, which arise out of or are in any manner connected with, or ara claimed to arise out of or be in anyway connected with, the performance of sthis agreement, unless such injury, loss Lease Agreement Corpus Christi S1vXSA Limited Partnership Page 3 of 5 'yl or damage shall be caused by ~th~e sale negligence o£ Indemnitees. Lessee shall, at Lessee's own expense, iztvestigate all such claims and demands, attend to their settlement or other disposition, defend all actions based thereon and pay all charges of <~ttarneys and all other costs and expenses of any kind arising from any such li;ibility, damage, lass, claims, demands and act10AS. 17. The City shall have the right at a:ny 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 wdl give ]uessee reasonable notice and make every reasonable effort to limit such aa~ess to the leased premises during normal business hours. . 18. Any notice or other communication from either party #o the other in regard to this agreement shall be deemed ;sufficiently given if sent by certified mai>, with postage and fees paid, addre;;sed to the party intended, at the following address: City of Corpus Christi P.O. Bc~x 9277 City Hall - 1?A1 Leopard Department of Engineering Senric~es Property Management Division Corpus Christi, TX 78469-9277 Southwestern Bell Mobile Syste~n~~, lnc: (General Partner) 1022 Grubb Road San Antonia, TX 78219 19. 'This lease is made and accepted srzbject to all ad valorem taxes that may be levied and assessed on .the hereon described leased prenises during the term of this lease, the payment of whic3~ is hereby assumed by Lessee. 20. By Lessee's execution thereof; Lesi~e:e acknowledges that Lessee has read this agreement and understands that this agreement is not binding on the City until properly authorized by ~tb~e ~',:ity Council and executed by the City Manager of the City of Corpus 1~~risti, Texas. WITNESSED the execu hereof ig d~u~ 'cafe originals, each of which is to be considered as an original, this `• day of •~„ ~~ 199~1~ Lease Agreement Corpus Christi SMSA Limited Partnership Page 4 of S ATTEST: hn~ City Secretary. APPROVED; ~ day of ~ ~ 1993 'rant Ci .Attorney 11U!'H~Ri2EQ 9Y i;F1U~CIL .....~. S~Cd~ ET~~ j`y t:i'TY OF CORPUS CHRISTI lry; r - i'~i:.r~urY~, Cityr ager Corpus Christi SMSA l;,imited Partnership {i,essee) Ely its G eral Parf~er Sauthw rn Bell Mobil Systems, iuc. l~~y ~ .~ " ~ Nancy F,degin ~f Vice P esident -General Manager A'I"I'~ST• :~y: ACKNOWLED~G.~MENT THE STATE OF TEXAS § - COUNTY OF NUECES § Thisiastrumeutwasaclmowledgedbefore;~t~e:on !a 1993, ~~ ~:..~.1 f1e~~~~~ ~gA~ City Manager of the City of Corpus Christi, a exas municipal corporation, on behalf of said corporation. I.OIlVARGO ~ ~ " l7A7E~iEW __ . '"rc°""~~~R~ 3J~otary Public, Star Texas ACKNO.WLE]DtsMENT THE STATE OF TEXAS § COUNTY OF NUECES § . This instrument was aclmawledged be#orc me on 1943, by Na~tcy Faegiyr as Vice President -General Manager f Southwestern Bell Mobile Systems, lnc., a. Texas corporation, on behalf of said corporation, and the corporation acknowledged this instrument as general partner on behalf of Carpus Christi SMSA Limited Partnership, a Texas limited partnership. w ~ ~~ iAASBS M. B1J&~S ' ~ MY COI~~ISSION BPS Irwury 6.1996 Lease Agreemept Corpus Christi SMSA Limited Partnership Page 5 of 5 l'1~~' PulSlie, State"of Texas - .'~- 4,'. .mss ~,. . ~~%~i." . ~~~ ~ ~~ ~ `. ~, .~ \ ~Ld~`~~_ ;aid. ~\ ~ I ~ ~ ~ ~ ~ G H Q M1i N E L ~,~~ 1 `~! R ,'' r , .`,'~`;t? ''\1 yJ'i`9ACK QFCL'RBt .:,~' - ' ~~ ~ LOT' ~ f .: ' ! - .. ' .. ~ ~~;~~LEA3ES rO OON9TRlJC7' gATE~ . ~ .~ ~ . •' ~ ~ ~ ' ~ ~~'LEASE. j.~~TE TGl. ANT. ~~ Whiteca ~ . SlTE•. Btvd. Treatment Pont i. '.. •~ OFfICE ~ . ~PilMp STA. a. ' ~•' ~ ~ ~ LAB BLDG ~,~~ ~ ,~ ~. ..~ ~'~. LOT 2 e ~~ . ~ BLOWER '' ~ CH1'OgpyE it BLDG, NERATOR ROOMIg•. j ~ SWaGE aRYlN ~ ~ • . .~ ~ f G ~ ~acesrERS . i aea ~~ t i 5l,.UaGE pRyING f~ , ' f i BEQ ~~/ E~CHiBlT A d LEASE S _ ~ ITE ~ ~ ~ r , ` - ~ ~ ; E7~:~3IT' "B" Being all that part of Lot 1, Block 2, Point T~et;ara, Unit 5, as recorded in Volume 38, Pages 32 and 33, Nueces County Map Records, anEi mare particularly described as follows: Beginning at a paint on the northwe:si:erly line of Lot 1 which is S27°49'21"W, 90 feet from the most northerly carnet of :Lcrt 2; Thence S 62°10`39" E, a distance of :i(i.0 fee#; Thence S 27°49`2i" W, a distance c,f 6~D.0 feet; Thence N 62°10'39" W, a distance of 50.0 feet; to a paint an the northwesterly line of Lot 1; Thence N 27°49'21" E, a distance of !i(I.0 feet along the northwesterly line of Lot 1 to the point of beginning, and containing 3,OOOA square feet nacme or less, together with a 20-foot wide access easement across tLe intervening po~~iran of Lot 1 which lies between, the lease area and the Whi#ecap Boulevard right-of-v~-ay.