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06-H Cox Cable Tower Lease Amended DRAFT F:ATTORNEY\RESWORK\CURRENT\ Tower Lease AMENDED - Cox Communications Res 2006 February 9, 2006 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, APPROVING AND AUTHORIZING THE EXECUTION OF AN AMENDED LEASE AGREEMENT BETWEEN THE CITY OF PARIS AND COX SOUTHWEST HOLDING, L.P. FOR CONTINUED USE OF CITY- OWNED PROPERTY LOCATED WEST OF NORTHWEST 19TH STREET AS A SITE FOR A COMMUNICATIONS TOWER; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Paris received a request from Cox Southwest Holding, L.P.located West of Northwest 19th Street, Paris, Texas 75460, for a new lease from the City of Paris for the continued use of City-owned property as a site for a communications tower; and, WHEREAS, the City Council did heretofore on the 24th day of October, 2005 in Resolution No. 2005-134 approve a new Lease Agreement between the city of Paris and Cox Southwest Holding, L.P. for said communications tower; and, WHEREAS, Cox Southwest Holding, L.P. has requested that amendments be made to the existing lease and it is deemed to be in the best interest of the City of Paris that an amended lease be approved to continue the use of such property for purposes stated herein; and, WHEREAS, the form of Amended Lease Agreement, attached hereto as Exhibit A, should in all things be approved, and the Mayor should be authorized to execute the same; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That an Amended Lease Agreement by and between the City of Paris and Cox Southwest Holding, L.P. for the leasing of City-owned property located West of Northwest 19th Street for the continued use of such property as a site for a communications tower, a copy of which said Amended Lease Agreement is attached hereto and incorporated herein for all purposes as Exhibit A, shall be, and the same is hereby approved, and the Mayor shall be and is hereby authorized to execute and the City Clerk to attest to the aforesaid Lease Agreement. Section 3. That this resolution shall be effective from and after its date of passage. - ""1''' PASSED AND APPROVED this 13th day of February, 2006. Curtis Fendley, Mayor ATTEST: Janice Ellis, City Clerk APPROVED AS TO FORM: John D. Lestock, Assistant City Attorney -. "M'"T' AMENDED LEASE AGREEMENT STATE OF TEXAS ~ COUNTY OF LAMAR ~ This amended lease agreement (the "Lease" or the "Agreement") in duplicate made and entered into by and between the CITY OF PARIS, a municipal corporation, hereinafter called Lessor and COX SOUTHWEST HOLDING, L.P., hereinafter called Lessee, WITNESSETH: 1. That the leased premises consist of the following described property of Lessor, located in Lamar County, Texas, being a part of what is commonly known as the Legion Airport properties located West of North West 19th Street in the City of Paris, Texas, and bounded as follows: Beginning at a point in a fence line and an E. B. Line of said Legion Airport properties, which point is 1103 feet West and 960 feet South ofthe most Easterly S. E. corner of said Legion Airport properties, said corner being on the W. B. Line of 19th N. W. Street; Thence South with said fence and boundary line 600 feet to as. E. corner of said Airport property; Thence in a Westerly direction along a South Boundary Line of said Airport property, a distance of 670 feet, more or less, a pin in an ell corner of said Airport property; Thence North 9 Deg. 5 Min. West with an existing fence line a distance of 600 feet, more or less, a pin; Thence N. 80 Deg. 25 Min. E. a distance of 654 feet, more or less to the place of beginning, containing 9.1 acres, more or less. 2. The term of this Lease shall be for five (5) years, beginning on the 1 st day of October, 2005, and ending on the 30th day of September, 2010, automatically renewable thereafter on October 1, the anniversary date thereof, for four (4) additional five (5) year terms, ending finally on the 30th day of September 2030; provided however, the City may terminate this Agreement prior to the automatic renewal of any annual term by giving written notice of termination to Lessee at least sixty (60) days in advance of the anniversary date thereof. 3. The initial annual rent due and payable to Lessor by Lessee, for the lease of the above Amended Lease Agreement - Page 1 EXHIBIT A "" "-,, -T" described property and premises unto the said COX SOUTHWEST HOLDINGS, L.P., for the term of years as stated herein, upon the terms and conditions herein specified, shall be Six Thousand Dollars ($6,000.00) annually, the first installment of Six Thousand Dollars ($6,000.00) having been paid in advance by said Lessee to Lessor, the receipt of which is hereby acknowledged, and a like installment shall be due and payable on the 1 st day of October, 2006 and on the 1 st day of October of each succeeding year to and including the 1 st day of October, 2029. Provided however, commencing on October 1,2006, and annually thereafter on each anniversary date of the Lease, the amount payable by the Lessor to the Lessee shall be adjusted to reflect changes in the Consumer Price Index (CPI-U ALL) for the DallaslFt. Worth Metroplex Region 6 Bureau of Labor Statistics for each contract year. For each year's adjustment, the CPI base month used for calculating each adjustment shall be March of said year. 4. Lessee shall pay to Lessor or order at the office of the City Clerk, in the City of Paris, Lamar County, Texas, the above described and mentioned annual payments when due strictly and promptly and without neglect, default or delay. 5. Any buildings, installations or improvements of any kind or character made and erected upon the leased property and premises by Lessee shall be and remain the property of Lessee, shall not attach to or become a part of the realty and may be by Lessee removed at any time prior to the expiration or other termination of the Lease. 6. Lessee shall not and may not assign this Lease or sublet the leased property and premises or any part thereof without first having had and obtained the approval thereofby the Governing Body of the City of Paris. 7. Except as otherwise provided herein, Lessee will not use or permit the use of any part of the Amended Lease Agreement - Page 2 T" leased property and premises for any purpose whatever other than the use thereof as and incident to the maintenance and operation of a community television antenna system. 8. Lessee acknowledges that Lessor is a governmental entity, and the property the subj ect of this Lease is publicly owned property. As further consideration for the use of said property, Lessee agrees to cooperate fully during the term ofthis Lease, subject to reasonable financial, logistical, regulatory, and engineering considerations and limitations, with the efforts of Lessor and other entities to co-locate various antenna arrays or other communication equipment on existing communication towers, as provided in Section 28 of the Zoning Ordinance of the City of Paris, or other similar successor legislation, to minimize the proliferation of such towers within the City of Paris. Failure to comply with this provision shall constitute a material breach of this Agreement, subject to those remedies for breach as stated herein or as otherwise provided under state law. 9. Lessee shall at all times keep the leased property and premises reasonably clear of weeds, grass, and brush which might constitute a fire hazard and shall not at any time allow to exist any other condition which would produce a fire hazard at or upon any part or portion of such leased premises. 10. Lessee agrees to indemnify, save, keep and hold harmless Lessor, its officers, agents, and employees, from and against any and all demands, debts, liabilities, suits, claims and causes of action of every kind and character whatsoever for damage or injuries to persons and/or property occurring on the leased premises resulting from Lessee's, its members, invitees, agents, servants or employees' use, and Lessor shall not be liable to Lessee, its members, invitees, agents, servants, employees, licensees, visitors, or to other third parties, due to the building, tower, or any other condition of the premises being improperly constructed, Amended Lease Agreement - Page 3 T maintained or being or becoming out of repair, Lessee hereby waiving any defects therein and agreeing to hold and save Lessor harmless from all claims for any such damages or injuries; Lessee must at all times during the term of this Agreement, and any extensions thereof, keep and maintain in full force and effect a policy or policies of insurance, providing at least $250,000.00 per person and $500,000.00 for any single occurrence for bodily injury or death and $100,000.00 for any single occurrence for injury to or destruction of property, indemnifying the Lessor, its officers, agents, employees, and all persons for any and all damages, personal injuries or property damages sustained in or upon the premises of said leased property, or any part thereof, as the result of the negligence of Lessee, its members, invitees, agents, servants or employees, and shall pay all premiums due thereon when due. It is expressly provided that such insurance policy or policies shall name the Lessor as an additional insured and shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the Lessor thirty (30) days notice in writing, and must be written and issued by a reputable insurance company or companies, subject to approval by the City Attorney of the City of Paris. Lessee or its insurance carrier or carriers shall deliver a copy of any such policies to the City Clerk of the City of Paris, or furnish to said City Clerk a current letter or certificate from such company or companies, evidencing the fact that such insurance is in full force and effect at all times during this Lease and any extension thereof. 11. Should Lessee at any time default in any of the covenants, conditions, provisions and stipulations herein contained, this Agreement may be terminated at Lessor's option and it shall be lawful for Lessor to re-enter the leased premises and remove all persons, property and effects therefrom without prejudice to any legal rights Lessor may have against Lessee Amended Lease Agreement - Page 4 - <T for the collection of rentals or otherwise, any and every claim for damages for or by reason of said re-entry being hereby expressly waived by Lessee. 12. A first lien is hereby expressly given and retained on all of Lessee's property and effects which may be located upon the leased premises to secure Lessor in the performance of this Lease Agreement by Lessee according to its face and tenor, effect and reading. 13. There shall be no hold over of such premises or any part thereof after the expiration of this Lease without the express written agreement of Lessor in advance of such holdover, and at the rate specified by Lessor. 14. It is specifically understood, agreed and stipulated that this Lease is made, executed and entered into by and between the parties hereto with the express purpose and intention that it shall be for the purpose of distribution of television signals to the residents of the City of Paris. IN WITNESS WHEREOF, the City of Paris, a municipal corporation, has caused these presents to be executed by its City Manager and attested by its City Clerk as evidenced by the authority of a resolution adopted by the City Council of the City of Paris in regular session convened on the 24th day of October, 2005, and Cox Southwest Holdings L.P., a corporation, has duly caused these presents to be executed by its President, duly authorized hereunto, and attested by its Secretary, on the date shown in the acknowledgments completed below. CITY OF PARIS By Tony Williams, City Manager LESSOR ATTEST: Janice Ellis, City Clerk Amended Lease Agreement - Page 5 APPROVED AS TO FORM: John D. Lestock, Assistant City Attorney COX SOUTHWEST HOLDINGS, L.P. By , President LESSEE ATTEST: , Secretary THE STATE OF TEXAS ~ ~ COUNTY OF LAMAR BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Tony Williams, City Manager ofthe City of Paris, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _ day of February, 2006. Notary Public, State of Texas STATE OF TEXAS ~ COUNTY OF SMITH ~ BEFORE ME, the undersigned authority, on this day personally appeared President of Cox Southwest Holdings, L.P., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _day of 2006. Notary Public, Smith County, Texas Amended Lease Agreement - Page 6 - --T"