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Ordinance No. 5,006805i2 -4 ® ORDINANCE NO. 5006 AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO A LEASE AGREEMENT BETWEEN THE CITY OF BAYTOWN AND GTE MOBILNET OF SOUTH TEXAS LIMITED PARTNERSHIP; AND PROVIDING FOR • THE EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby approves a lease agreement with GTE Mobilnet of South Texas Limited Partnership, and authorizes and directs the Mayor and City Clerk of the City of Baytown to execute and attest to said lease agreement. A copy of said lease agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown, this the 12th day of May, 1988. i T' • • or ATTEST: EILEEN P. HALL, City Clerk RANDALL B. STRONG, Ci Attorney C:1 :1 :28 L v E Ll ® — LEASE AGREEMENT STATE OF TEXAS COUNTY OF HARRIS ID# KNOW ALL MEN BY THESE PRESENTS, THAT: This Lease Agreement, hereinafter referred to as "Lease ", is made and entered into this day of 1988, between City of Baytown, hereinafter referred to as ''Landlord" and GTE Moblinet of South Texas Limited Partnership, with offices at 616 FM 1960 West #400, Houston, Texas 77090, hereinafter referred to as "Tenant ". WITNESSETH: 1. Premises: Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, space on and /or within Landlord's water tower facility hereinafter referred to as "Leased Premises ", a water tower structure and associated real property owned and operated by Landlord. Said Leased Premises being located at the "James Street Water Tower Facility" situated at the corner of E. James St. and Seventh Street Baytown, County of Harris, State of Texas and said tower being located at Lat. 29" 46' 15" and Long. 94- 57' 35 ". 2. Communications E ui ment: Landlord hereby grants permission to Tenant to ® install and operate the following described cellular communications equipment; build- ing, generator and associated equipment on or in the Leased Premises: A. Two (2) cellular transmit and receive antennas and one (1) microwave dish, with the antennas at a permanent location on the top of Landlord's water tower. The exact location of the antennas and the microwave dish shall be supplied to Landlord in the form of as built drawings after installation; no alteration .thereafter shall be made without prior written approval and acceptance by Landlord and Tenant, such approval not to be unreasonably withheld. B. Flexible coaxial transmission lines between antennas, dish and cellular communications equipment which shall be anchored, installed and properly identified at the top and bottom of the tower in accordance with good and accepted engineering practices. C. Radio communications equipment consisting of transmitter, receiver and accessories to be installed in the equipment house located near the base of the tower in accordance with a site plan attached hereto as EXHIBIT "A ". D. Emergency gasoline, butane, diesel or other fuel powered generator to be located adjacent to the equipment house and to be used at Tenant's option, but in most cases only in the event of power failure. For the purposes of this agreement, all of Tenant's equipment, building, panels, ® generator, tower, cables, wires, antennas, microwave dish and accessories shall hereinafter collectively be referred to as "Communications Equipment" or "Communications Center ". 3. Term: The primary term of this Lease shall be for five (5) years and shall commence on Ray 15, 1988 and shall terminate on May 14, 1993 subject to extensions as set forth in Paragraph number 8 below. 19 ti �i 0 C ® 4. Rent: During the primary term of the Lease, as rental for the Leased Premis- es, Tenant will pay Landlord at the address designated in Paragraph number 10, the annual sum of One Thousand Eight Hundred Dollars ($1800.00) payable in equal monthly installments of One Hundred Fifty Dollars ($150.00) each, all in advance. Rental pay- ments shall commence on May 15, 1988 and continue at monthly intervals throughout the remainder of the lease. In the event this Lease is extended beyond the primary term, as hereinafter provided, the yearly rental rate shall be adjusted in accordance with Paragraph number 8 below. 5. Use: Tenant will use the Leased Premises for the purpose of constructing and operating a Communications Center. Tenant will abide by all local, State and Federal'Laws and obtain all permits and licenses necessary to operate its system. Tenant shall use the Leased Premises for no other purpose, without the prior written consent of Landlord. 6. Access: Landlord agrees that during the term of this Lease or its extensions as hereinaTt r provided, Tenant shall have reasonable ingress and egress on a 24 -hour basis to the Leased Premises for the purposes of maintenance, installation, repair and removal of said Communications Equipment. It is agreed, however, that only authorized engineers or employees of Tenant, or persons under Tenant's direct supervision, will be permitted to enter the said Leased Premises to install, remove and /or repair Tenant's Communications Equipment. Tenant is responsible for the cost of such activi- ties and will notify Landlord in advance of its need to install or repair its Communi- cations Equipment located on the Leased Premises; EXCEPT HOWEVER, in the case of an emergency whereupon notification shall be given as soon as reasonably possible. 7. Utilities at Tenant's Cost: Tenant shall be solely responsible for and promptly pay all charges for electricity, telephone and any other utility used or consumed by Tenant on the Leased Premises. Landlord shall advise Tenant of and fully cooperate with any Utility Company requesting an easement over and across the Leased Premises or other lands owned by Landlord, in order that such Utility Company may 10 provide service to Tenant. Tenant shall have an electrical current meter installed at the Leased Premises and have the right to run underground or overhead utility lines directly from the utility source to Tenant's Communications Equipment. The cost of such meter and of installation, maintenance and repair thereof shall be paid for by the Tenant. Tenant and the Utility Company providing services to Tenant shall have access to all areas of the Leased Premises, or other lands of Landlord, necessary for installation maintenance and /or repair of such services. 8. Extensions: Tenant shall have the option to extend this Lease by a series of three (3 a itional terms of five (5) years each so long as it has abided by the terms and conditions of the Lease and is not currently in default hereunder. Tenant shall give written notice to Landlord of its intention to extend during the last six (6) months of the primary term or any extensions thereof, as the case may be, but in no event shall such notice be less than thirty (30) days prior to the expiration of any such term. In the event Tenant exercises its option to extend this Lease, the Lease amount shall be adjusted at the end of each five (5) year period and each adjustment shall be based on the U.S. Department of Commerce "National Consumer Price Index" for all Urban Consumers, U.S. City Average ( "CPI -U ") indicator and shall be determined by dividing the CPI -U indicator from the most recent published indicator prior to the adjustment date, by the CPI -U indicator published five (5) years prior to the adjustment date, and multiply the resultant number by the yearly lease rental amount of the most recent past lease period. It is agreed and understood however that in no event shall the yearly lease rental amount ever decrease in value and it is further agreed and understood that the newly yearly lease increase amount shall in no case be less than 3% or more than 7% of the most recent past yearly lease rental amount. ® 9. Holding Over. If Tenant should remain in possession of the Leased Premises after the expiration of the primary term or any extension of this Lease, without the exercise of an option or the execution by Landlord and Tenant of a new Lease, then Tenant shall be deemed to be occupying the Leased Premises as a tenant -at- sufferance on a month -to -month basis, subject to all the covenants and obligations of this Lease and at a monthly rental of one and one -half (1.50) the per month rental then provided hereby. SA066 /Approved Form /9 -87 Ll 0 :7 10. Notice: Any notice shall be in writing and shall be delivered by hand or sent by Un teid States Registered or Certified Mail, postage prepaid addressed as follows: Landlord: Tenant: City of Baytown GTE Mobilnet of South Texas Limited 2401 Market Street Partnership ® Baytown, Texas 77522 -0424 616 FM 1960 West - Suite 300 Atten: Director - Public Works Houston, Texas 77090 (Ph# 713/422 -8281) Attn: General Manager L` With a Copy to: GTE Mobilnet Service Corp 616 FM 1960 West, Suite 400 Houston, Texas 77090 Attn: Legal Department (Ph# 713/583 -7210) Either party hereto may change its address to which said notice shall be delivered or mailed by giving notice of such change as provided above. Notice shall be deemed given when delivered (if delivered by hand) or when postmarked (if sent properly by mail). 11. Liabilit and Indemnity: Tenant agrees to indemnify and save the Landlord harmless rom all claims (including costs and expenses of defending against such claims) arising or alleged to arise from the negligence or willful misconduct of Tenant or Tenant's agents, employees or contractors occurring during the term of this Lease or any extensions in or about the Leased Premises. Tenant agrees to use and occupy the Leased Premises at its own risk and hereby releases Landlord, its agents and employees, from all claims for any damage or injury brought on by Tenant to the full extent permitted by law. Landlord in turn agrees to indemnify and save Tenant harmless from all claims (including cost and expenses of defending against such claims) arising or alleged to arise from the negligence or willful misconduct of Landlord or Landlord's agents, employees, contractors or other tenants of Landlord occurring during the term of this Lease. 12. Termination: Tenant shall have the right to terminate this Lease at any time upon any oft eh 76- lowing events: A. Upon providing Landlord six (6) months written notice. B. If the approval of any agency, board, court, or other governmental authority necessary for the construction and /or operation of the Communi- cations Equipment cannot be obtained, or is revoked or if Tenant deter- mines the cost of obtaining or retaining such approval is prohibitive. If Tenant determines that the property is not appropriate for locating its Communications Equipment for technological reasons, including, but not limited to, signal interference. Tenant will give Landlord thirty (30) days written notice of termination of this lease under the terms of this Paragraph number 12 sections (B) and (C). Upon termination, neither party will owe any further obligation under the terms of this Lease, except for Tenant's responsibility of removing all of its Communications Equipment from the Leased Premises and restoring the areas occupied by Tenant to as near as practicable to its original condition, save and except normal wear and tear and acts beyond Tenant's control. SA066 /Approved Form /9 -87 C. n L..J 13. Defaults and Remedies: Notwithstanding anything in the Lease to the con- trary, Tenant shall not be in default under this lease until: ® A. in the case of a failure to pay rent or other sums due under this lease, fifteen (15) days after receipt of written notice thereof from Landlord, or; B. in the case of any other default, thirty (30) days after receipt of written notice thereof from Landlord; provided, however, where any such default cannot reasonably be cured within thirty (30) days, Tenant shall not be deemed to be in default under the Lease if Tenant commences to cure such default within said thirty (30) day period and thereafter diligently pursues such cure to completion. In the event of Tenant's default in the payment of rentals or Tenant's failure to comply with any other material provision of this Lease, Landlord may, at its option, terminate this Lease without affecting its right to sue for all past due rentals, and any other damages to which the Landlord may be entitled. Should Landlord be entitled to collect rentals or damages and be forced to do so through its attorney, or by other legal procedures, Landlord shall, upon receipt of a favorable ruling, be entitled to its reasonable costs and attorney fees thereby incurred upon said collection. 14. Taxes: Tenant shall pay annually an amount equal to any increase in real estate taxes that may be attributable to any improvement to the Leased Premises made by Tenant. If such tax is paid by Landlord, Tenant shall reimburse Landlord for the amount of any such tax payment within (60) sixty days of receipt of sufficient docu- mentation indicating the amount paid and the calculation of Tenant's pro -rata share. Upon written request by Tenant, Landlord shall furnish evidence of payment of all taxes. 15. Insurance: Tenant shall, at its expense, maintain in force during the term of this Lease, a combined single limit policy of bodily injury and property damage insurance, with a limit of not less than $1,000,000.00 insuring Landlord and Tenant against all liability arising out of the use, occupancy, or maintenance of the Leased Premises and appurtenant areas, which policy shall be endorsed as a primary insurance as.to Landlord. 16. Tower Anal sis: Landlord agrees to furnish Tenant with true copies of all tower ana yses performed on Landlord's tower within the last two (2) years. In absence of a tower analysis or if the most recent analysis is insufficient for Ten- ant's needs, Landlord agrees to allow Tenant the right to acquire a new analysis on Landlord's tower. Tenant shall be responsible for coordinating and paying for 100% of the cost for the analysis. Notwithstanding the forgoing, in the event it is deter- mined after reviewing the tower analysis that Landlord's tower is not structurally appropriate for Tenant's needs, Tenant may, at Tenant's option, either terminate this lease or pay the additional cost of reinforcing or otherwise making the tower struc- turally sound for Tenant's use. 17. Tests: Tenant is hereby given the right to survey, soil test, radio coverage test, and conduct any other investigations needed to determine if the surface and location of the Leased Premises is suitable for construction and installation of its Communications Equipment prior to commencement and throughout the term of this Lease and the terms of paragraph 11 shall apply. 18. Fixtures: Landlord covenants and agrees that no part of the improvements constructed, ected or placed by Tenant on the Leased Premises or other real property owned by Landlord shall be or become, or be considered as being, affixed to or a part of Landlord's real property and any and all provisions and principles of law to the contrary notwithstanding, it being the specific intention of Landlord to covenant and agree that all improvements of every kind and nature constructed, erected or placed by Tenant on the Leased Premises or other real property owned by Landlord shall be and remain the property of the Tenant. SA066 /Approved Form /9 -87 ", LJ 0 0 19. Assignment and Subletting: Tenant may assign or sublet the Leased Premises ® or any part thereof without the consent of Landlord only if Tenant remains liable for fulfillment of payments under this Lease and the nature of the use is not changed or the Assignment is made to an affiliate of GTE Mobilnet Incorporated. All other assignments shall require Landlord's, arior written consent, which consent shall not be unreasonably withheld. 20. Memorandum of Lease: Following the execution of this Lease, either party, ® at its sole expense, sha be entitled to file the Memorandum of Lease (attached as EXHIBIT "A ") of record in the County where the Leased Premises is located. 21. Other Conditions: A. Landlord acknowledges that following the execution of this Lease, Tenant will be contacting the appropriate local governmental agencies for the purpose of obtaining all building permits and approvals, zoning changes and /or approvals, variances, use permits and other governmental permits and approvals ( "Local Permits ") necessary for the construction, operation and maintenance of a cellular mobile telephone facility and related antennas, cables, conduits, wires and electronic and other equipment on the Leased Premises. Landlord agrees to fully cooperate with Tenant in obtaining the Local Permits and, without limiting the generality of the foregoing, to execute any applications, maps, certificates or other documents that may be required in connection with the Local Permits. B. Whenever under the Lease the consent or approval of either party is required or a determination must be made by either party, no such consent or approval shall be unreasonably withheld or delayed, and all such determinations shall be made on a reasonable basis and in a reasonable manner. C. Landlord covenants that the Tenant shall, upon paying the rent and observing the other covenants and conditions herein upon its part to be observed, peaceably and quietly hold and enjoy the Leased Premises during the term of this Lease or as it may be extended without hindrance, ejection or molestation by the Landlord, any person or persons claiming under the Landlord or any other tenant of the Landlord. D. Landlord assumes no responsibility for the license, operation and /or mainte- nance of Tenant's antennas. However, Landlord does have the responsibility of main- taining the tower and of observing tower lights and maintaining records including notification to Federal Aviation Administration of any failure and repairs and correc- tion of same. E. Landlord covenants and agrees that, at all times during the continuance of this lease, Tenant shall have the right to mortgage or convey by deed of trust or other instrument adequate for the purpose of securing any bona fide indebtedness or evidence thereof, this lease or the leaseholder's interest of the Tenant created hereby, together with all of the Tenants right, title and interest in and to improve- ments hereinafter constructed, erected or placed on the Leased Premises by Tenant, provided always that no such mortgage, conveyance or encumbrance, nor any foreclosure thereof, nor any purchase thereunder, shall impair or abridge the rights of the Landlord, as provided herein. F. Tenant covenants and agrees that Tenant's Communications Equipment, its installation, operation and maintenance will: (1) Not irrepairably damage the water tower structure and accessories thereto or interfere with the ladders located thereon. (2) Not interfere with the maintenance of Landlord's water tower and the tower lighting system if one exists. (3) Comply with all applicable rules and regulations of the Federal Communi- cations Commission and electrical codes of the City and /or State concerned. (4) Not interfere with the operation of Landlors's radio equipment or the radio equipment of other tenants currently on said tower. In the event there is interference, Tenant will promptly take all steps necessary to correct and eliminate same within a reasonable period of time. If Tenant is unable to eliminate the interference within a reasonable period of time, Tenant agrees to remove his equipment from Landlord's property and this agreement shall therefore be terminated. EXHIBIT A roved Form/9 - -g9 - -- - = - -5 -- - E G. If the Leased Premises is damaged for any reason so as to render it substan- tially unusable for Tenant's use, rent shall abate for such period not in excess of ninety (90) days while Landlord, at its expense, restores Landlord's Tower and /or Building to its condition prior to such damage. Provided however, in the event Landlord fails to repair the Leased Premises within the said ninety (90) day period, Tenant shall have the right to terminate this lease with no further obligations hereunder. H. During the term of this Lease, Landlord will not grant a similar Lease to any ® other party if such grant would in any way adversely affect or interfere with Tenant's use of its Communications Equipment. In the event of any interference, Landlord shall take all steps necessary to correct and eliminate same within a reasonable period of time. If Landlord is unable to eliminate the interference within a reasonable period of time, Landlord shall be obligated to remove subsequent tenants antenna(s) from Landlord's property. Tenant shall not change the frequency, power or character of its equipment without first obtaining the written consent of Landlord, which shall not be unreasonably withheld. Should the Landlord decide to vacate and terminate its operations at this location, then Tenant shall have the preferential right, at its option, to be exercised by notice to Landlord within (90) ninety days, to purchase the existing tower and /or associated equipment at a price found to be mutually acceptable to the Landlord and Tenant. I. At any time during the term of this Lease, Tenant shall have the option, but not the obligation, to construct a self supporting transmission tower on the Leased premises at the approximate location denoted on the site plan attached hereto as EXHIBIT "A". Landlord agrees to cooperate with Tenant in securing the necessary permits and following installation of the said tower, Tenant agrees to transfer all of its communications equipment from Landlord's water tower to Tenant's transmission tower. J. Should Landlord's water tower require painting or other maintenance, which may effect Tenant's communications equipment, Landlord agrees to give Tenant fifteen (15) days prior written notice, with such notice including a description of the work to be done. If proper notice is given, Tenant shall be fully responsible for any damage to its communications equipment. Tenant further agrees to reimburse Landlord for any additional cost incurred by Landlord as a result of painting or maintenance of the water tower if such cost is attributable to Tenant's communications equipment being located thereon. K. Tenant agrees that at all times it shall maintain the appearance of its communications equipment located on the Leased Premises. 22. Entire A reement and Binding Effect: This Lease and any attached exhibits signed oF—initialed by the parties constitute the entire agreement between Landlord and Tenant; no prior written or prior, contemporaneous or subsequent oral promises or representations shall be binding. This Lease shall not be amended or changed except by written instrument signed by both parties hereto. Paragraph captions herein are for convenience only, and neither limit nor amplify the provisions of this Lease. The provisions of this Lease shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties, but this provision shall in no way alter the restriction hereon in connection with assignment and sublet- ting by Tenant. SA066 /Approved Form /9 -87 THIS SPACE INTENTIONALLY LEFT BLANK r- C] El C n IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date and year first above written. LANDLORD: . City of Baytown BY: Name: Title: FEDERAL TAX I.D. #: TENANT: GTE Mobilnet of South Texas Limited Partnership GTE Mobilnet of Houston Incorporated, General Partner BY: Richard L. Sharman General Manager -Texas of GTE Mobilnet Service Corp STATE OF TEXAS ) )SS. ACKNOWLEDGEMENT COUNTY OF HARRIS ) BEFORE ME, the undersigned authority, on this day personally appeared known to me to be those whose name(s) are /is su s bed to the foregoing instrument and acknowledged to me that they /he being duly authorized to execute said instrument executed the same for the purposes and considerations therein expressed, and in the capacity therein stated. Given under my hand and seal of office this day of 1988. My Commission Expires: STATE OF TEXAS ) )SS. COUNTY OF HARRIS ) Notary Public in and for the State of Texas. ACKNOWLEDGEMENT BEFORE ME, the undersigned authority, on this day personally appeared Richard L. Sharman General Manager -Texas of GTE Mobilnet Service Corp, and he acknowledged to me that he being duly authorized, signed the foregoing instrument and acknowledged to me that he executed the same for the purposes, consideration and capacity therein stated. Given under my hand and seal of office this _ day of My Commission Expires: 01 Notary Public in and for the State of Texas. EXHIBIT A SA066 /Approved Form /9 -87 _. 7 1988. BI 11 El 1�1 n :7 EXHIBIT "A" Attached to and made a part of that certain LEASE AGREEMENT dated , 1988 by and between City of Baytown ( "Landlord ") and GTE Mobilnet of SouthTexas' Limited Partnership ( "Tenant "). SITE PLAN, SA066 /Approved form /9 -87 RIBIT A C �-,, v n I STATE OF TEXAS ® COUNTY OF HARRIS EXHIBIT "B" MEMORANDUM OF LEASE KNOW ALL MEN BY THESE PRESENTS, THAT: THIS MEMORANDUM OF LEASE is made and entered into this day of , 1988, by and between City of Baytown ( "LANDLORD ") whose address s 2401 Mar ek t Street, Baytown, Texas 77522 and GTE Mobilnet of South Texas Limited Partnership, ( "TENANT ") whose address is 616 F.M. 1960 West, Suite, 300 Houston, Texas 77090. WITNESSETH: WHEREAS, LANDLORD has leased to TENANT, and TENANT has leased from LANDLORD, upon and subject to the terms, covenants, conditions, limitations and restrictions con- tained in that certain lease dated , ( "Lease ") between the parties hereto, that certain real property located at the Tames Street Water Tower Facility, Baytown, Texas, more particularly described on "Exhibit A" attached hereto and made a part hereof ( "Leased Premises "). The term of the Lease is for five (5) years, commencing on May 15, 1988 and ending on May 14, 1993, subject to TENANT's option to extend the term for three (3) additional periods of five (5) years upon the terms and conditions set forth. in the Lease. The rent and other obligations of LANDLORD and TENANT are set forth in the Lease, to which reference. is made for further particulars. In the event of any conflict between the terms and provisions of the Lease and those contained in this Memorandum, those contained in the Lease shall govern and be controlling. IN WITNESS WHEREOF, LANDLORD and TENANT have executed and acknowledged this Memorandum as of the date first above written. LANDLORD: City of Baytown BY: Name: Title: TENANT: GTE Mobilnet of South Texas Limited Partnership GTE Mobilnet of Houston Incorporated, General Partner BY: Richard L. Sharman, General Manager - Texas, of GTE Mobilnet Service Corp EXHIBIT kt SA066 /Approved Form /9 -87 9 1❑ E C I E C7 STATE OF TEXAS ACKNOWLEDGEMENT COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared , known to me to be those whose name(s) are /is subscribed to the foregoing instrument and acknowledged to me that they /he being duly authorized to execute said instrument executed the same for the purposes and considerations therein ® expressed, and in the capacity therein stated. Given under my hand and seal of office this day of 1988. My Commission Expires: Notary Public in and for the State of n Print Full Name STATE OF TEXAS ACKNOWLEDGEMENT COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared GTE Mobilnet of South Texas Limited Partnership by Richard L. Sharman, General Manager - Texas of GTE Mobilnet Service Corp, and he acknowledged to me that he being duly authorized, signed the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein stated and in the capacity therein stated. Given under my hand and seal of office this day of 1988. My Commission Expires: Notary Public in and for the State of Texas. SA066 /Approved Form /9 -87 Print Full Name 10 I 1 E 0 v EXHIBIT "A" Attached to and made a part of that certain MEMORANDUM OF LEASE dated 1988 by and between City of Baytown ( "LANDLORD ") and GTE Mobilnet of South Texas Limited Partnership ( "TENANT "). LEASED PREMISES- n — SA066hkpp -- _- 1— C. •