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2009-113-RES-Approving the execution of a tower lease agreementRESOLUTION NO. 2009-113 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS, APPROVING AND AUTHORIZING THE EXECUTION OF A TOWER LEASE AGREEMENT BETWEEN THE CITY OF PARIS AND NORTHEAST TEXAS RADIO OPERATIOIVS & COMMAND, INC. FOR PLACEMENT OF HAM RADIO EQUIPMENT ON THE EAST ELEVATED WATER TOWER SITE LOCATED AT 635 ZSTH STREET NE TO PROVIDE AND AUGMENT EMERGENCY COMMUNICATIONS FOR THE CITY OF PARIS; MAKIIVG OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Paris has received a request from Northeast Texas Radio Operations & Command, Inc. for placement of ham radio equipment on the east elevated water tower site located at 635 25th Street NE to provide and augment emergency communications for the City of Paris; and, WHEREAS, it is deemed to be in the best interest of the City of Paris and its citizens for the City of Paris to enter into a lease agreement with Northeast Texas Radio Operations & Command, Inc. ("NETROC") to allow IVETOC to install ham radio communication and antenna devices on the City's East Water Tower to provide emergency radio communication services to the City of Paris and its citizens; and, WHEREAS, the form of a Lease Agreement, attached hereto as Exhibit A, should in all things be approved, and the City Manager should be authorized to execute the same. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS: Section 1. That the findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That a new Lease Agreement by and between the City of Paris and Northeast Texas Radio Operations & Command, Inc. for the leasing of City-owned property being the east elevated water tower located at 635 25th Street NE to provide and augment emergency communications for the City of Paris, a copy of which said Lease Agreement is attached hereto and incorporated herein for all purposes as Exhibit A, shall be, and the same is hereby approved, and the City Manager 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. PASSED AND APPROVED this 12th day of October, 2009. . . y -~j' 4+R~------ je~se 1ames reelen, Mayor , ATTEST: J nice Ellis, City Clerk APPROVED AS T ORM: W. Kent McIly 'ry Attorney LEASE AGREEMENT (WATER TOWERI This Lease Agreement ("Agreement") is entered into by and between the Ciry of Paris, Texas, a home rule municipal corporation, ("Lessor") and Northeast Texas Radio Operations & Command, Inc., a Texas corporation, ("Lessee"), acting by and through their authorized representatives. This Agreement shall become effective upon the date last executed by a party to the Agreement ("Effective Date"). For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Premises. Lessor is the owner of a parcel of land (the "Land") and a Water Tower (the "Water Tower") located at 635 N. E. 25th Street in the City of Paris, Lamar County, Texas, (the Water Tower and Land are collectively, the "Property"). The Land is more particularly depicted in an aerial photo attached hereto and incorporated herein by reference as Exhibit "A". Lessor hereby leases to Lessee and Lessee leases from Lessor, approximately Four Hundred (400) square feet of the Land herein referred to as the Building and space on the Water Tower and all necessary access and utility easements, if any, (collectively, the "Premises") as further described and depicted on the drawing attached hereto and incorporated herein as Exhibit "B". 2. Use. The Premises may be used by Lessee for any activity in connection with the provision of ham radio communications services. Lessor agrees to cooperate with Lessee, at Lessee's expense, in making application for and obtaining all licenses, permits and any and all other necessary approvals that may be required for Lessee's intended use of the Premises. 3. Tests and Construction. Lessee shall have the right at any mutually agreeable time following the effective date of this Agreement to enter upon the Property for the purpose of making appropriate engineering and boundary surveys, inspections, soil test borings, other reasonably necessary tests and constructing Lessee's Facilities. Upon Lessee's request, Lessor agrees to provide to Lessee copies of all plans, specifications, surveys and Water Tower maps for the Property and Premises. The Water Tower map shall include the elevation of all existing antennas on the Water Tower and the frequencies upon which each operates. 4. Term. The term of this Agreement shall be for an initial period of five (5) years commencing on the effective date of this Agreement and terminating on the fifth anniversary of the Effective Date (the "Initial Term") unless otherwise terminated earlier as provided herein. Lessee shall have the right to renew this Agreement for up to five (5) additional five (5) year periods (the "Renewal Terms") on the same terms and conditions as set forth herein. This Agreement shall automatically be extended for each Renewal Term unless either Lessor or Lessee notifies the other of its intention not to renew at least sixty (60) days prior to the expiration of the then current term. 1 S. Rent. In consideration of Lessee's agreement and commitment to provide emergency communication services to the City of Paris, Texas and other surrounding public safety agencies, the rent for this lease is hereby waived. 6. Facilities: Utilities: Access. (a) Pursuant to this Lease Agreement, Lessee has the right to erect, maintain and operate on the Premises radio communications facilities, including utility lines, transmission lines, air conditioned equipment shelter(s), electronic equipment, radio transmitting and receiving antennas and supporting equipment and structures thereto in the manner provided by this Agreement, and as described in the description of Lessee's Facilities attached hereto and incorporated herein by reference as Exhibit "C"("Lessee Facilities"). In connection therewith, Lessee has the right to do all work necessary to prepare, maintain and alter the Premises for Lessee's business operations and to install transmission lines connecting the antennas to the transmitters and receivers subject to prior review and written approval by Lessor. All of Lessee's construction and installation work shall be performed at Lessee's sole cost and expense and in a good and workmanlike manner. Title to the Lessee Facilities shall be held by Lessee. All of Lessee Facilities shall remain Lessee's personal property and are not fixtures. Lessee has the right to remove all Lessee Facilities at its sole expense on or before the expiration or earlier termination of the Agreement; provided Lessee repairs any damage to the Premises caused by such removal. (b) Lessee shall be solely responsible for contracting for and paying for electrical services for Lessee's Facilities. Lessee shall obtain separate utility service from any utility company that will provide service to the Property (including a standby power generator for Lessee's exclusive use). Lessor agrees to sign such documents or easements as may be required by said utility companies to provide such service to the Premises, including the grant to Lessee or to the servicing utility company, of an easement in, over across or through the Land as may be reasonably required by such servicing utility company to provide utility services as provided herein. (c) Lessee, Lessee's employees, agents, subcontractors, lenders and invitees shall have access to the Premises with prior notice to Lessor twenty-four (24) hours a day, seven (7) days a week, which notice may be made verbally to Lessor's designated representative. In the event of an emergency, Lessee shall only be required to give any notice which is reasonably possible. If Lessee contacts Lessor for access to the Premises after normal business hours of Lessor, the Lessee shall reimburse Lessor for all reasonable costs and expenses incurred by Lessor, including but not limited to, overtime labor charges for City personal to meet Lessee at the Leased Premises. Lessor grants to Lessee, and its agents, employees, contractors, guests and invitees, a non-exclusive right and easement for pedestrian and vehicular ingress and egress across that portion of the Land described in Exhibit "A". (d) Lessor shall maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. Lessor shall be responsible for maintaining and repairing 2 such roadway, at its sole expense, except for any damage caused by Lessee's use of such roadways. (e) It is understood and agreed by the Parities that the primary use and purpose of the Premises is to provide water storage and transmission of water to the City of Paris and its customers, and that periodic maintenance and repair of the Lessor's facilities on the Premises is necessary. The Lessee acknowledges and agrees that Lessor's operation, maintenance and repair of the Water Tower Facilities supersedes Lessee's use of the Premises for communication services, and that this Lease Agreement is subservient to the needs of Lessor to maintain and operate a Water Tower and water transmission system. 7. Interference. All operations by Lessee shall be in compliance with all Federal Communications Commission ("FCC") rules and regulations. Lessee shall not cause radio frequency interference to Lessor or to any other lessee who is using the Premises at the time of Lessee's installation or operation of its equipment. Should such interference occur, Lessee will take all steps necessary to correct such interference and, if such interference cannot be corrected within thirty (30) days of notice to Lessee of such interference, Lessee will cease its operations from the Premises until such time as such interference can be corrected, or, at Lessee's option, this Agreement shall be terminated. Lessor shall not allow the installation of new equipment on the Property if such equipment is likely to cause radio frequency interference with Lessee's operations. The Lessor will not grant a lease to any other party for the use of the Lessor's property without including in that lease a provision stating that the party's use will not adversely affect or interfere with the Lessee's operation of its communication system. Furthermore, the Lessee shall have the right to pursue any remedies available under this Agreement, at law, and/or at equity, or terminate this Agreement upon thirty (30) days notice to the Lessor if another user of the facilities causes significant interference with Lessee's operations, and such interference is not corrected within thirry (30) days following the notice. Lessee shall have the sole burden of, and be responsible for all costs associated with alleging and proving that another user of the Premises is causing significant interference, or for otherwise enforcing Lessee's rights under this Agreement. The Lessor shall not be responsible for the costs associated with the resolution of any dispute between users of the Premises, or enforcement of any of Lessee's rights under this Agreement. 8. Taxes. Lessee shall be responsible for and pay any taxes directly attributable to the Lessee Facilities or Lessee's use of the Property. 9. Condition of Site. Lessee accepts the Premises as is, in its current condition, and the Lessor makes no representations or warranties, and hereby disclaims any and all such representations or warranties, express or implied, of any kind or nature, with regard to the facilities and the Premises, other than those representations and warranties set forth in this Agreement. The Lessor shall maintain the Premises in compliance with all applicable statutes, regulations and rules, and in a manner which will not interfere with Lessee's reasonable use of the site. Lessee may remove the Lessee Facilities at any time prior to the termination of this Agreement provided Lessee repairs any damage to the Premises caused thereby. Upon expiration or termination for any reason of the Agreement, Lessee shall, within thirty (30) days thereof, remove Lessee Facilities and any other property (other 3 than any fixtures) from the Premises and shall restore the Premises to the condition in which it existed upon execution of this Agreement, reasonable wear and tear excepted. Should Lessee fail to so remove the Lessee Facilities, Lessor may, upon thirty (30) days' notice by Lessor to Lessee remove and store the Lessee Facilities at Lessee's expense. Should Lessee fail to restore the Premises to its original condition, ordinary wear and tear excepted, then Lessor may do so at Lessee's expense. In the event that neither Lessee nor Lessee's financing entity shall effect such timely removal, and provided at least sixty (60) days have elapsed since the original written notice to Lessee, the Lessee Facilities shall be deemed abandoned and Lessor may remove and dispose of the Lessee Facilities at Lessee's expense. 10. Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of default, provided that the grace period for any monetary default is ten (10) days from receipt of notice; (ii) by Lessee for any reason or for no reason, provided Lessee delivers written notice of early termination to Lessor no later than thirty (30) days prior to the commencement of operations; (iii) by Lessee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of Lessee Facilities; or (iv) by Lessee if Lessee is unable to occupy and utilize the Premises due to an action of the FCC, including without limitation, a take back of channels or change in frequencies; (v) by Lessee if Lessee determines that the Premises are not appropriate for its operations for economic or technological reasons, including, without limitation, signal interference; or (vi) by Lessor if the Ciry Council shall make a legislative determination and finding by written resolution that the use of the Premises is needed for another public interest and votes to terminate the Agreement by giving Lessee ninety (90) days written notice. 11. Destruction or Condemnation. If the Premises or Lessee Facilities are damaged to the extent that continued use is unfeasible, destroyed, condemned or transferred in lieu of condemnation, Lessor may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to Lessee no more than forty-five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. 12. Insurance. Lessee, at Lessee's sole cost and expense, shall procure and maintain on the Premises and on Lessee's Facilities, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against liability of Lessee, its employees and agents arising out of or in connection with Lessee's use of the Premises, all as provided for herein. Lessor, its elected officials, officers and employees shall be named as an additional insured on Lessee's policy. Lessee shall provide to the Lessor a certificate of insurance evidencing the coverage within fifteen (15) days of the Effective Date of this Agreement. 13. Assignment and Sublettine. Lessee may not assign, or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written 4 consent of the Ciry Manager of the City of Paris; provided, however, that Lessee may assign its interest to its parent company, any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity acquiring fifty-one percent (51%) or more of its stock or assets. The Lessee may not sublet to or license others to use the Premises without the prior written consent of the City Manager of the City of Paris. Notwithstanding anything to the contrary contained in this Agreement, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Agreement to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 14. Warranty of Title and Quiet Enjovent. Lessor warrants that: (i) Lessor owns the Property in fee simple and has rights of access thereto and the Property is free and clear of all liens, encumbrances and restrictions; (ii) Lessor has full right to make and perform this Agreement; and (iii) Lessor covenants and agrees with Lessee that upon Lessee paying the Rent and observing and performing all the terms, covenants and conditions on Lessee's part to be observed and performed, Lessee may peacefully and quietly enjoy the Premises. 15. Repairs. Lessee shall not be required to make any repairs to the Premises or Property unless such repairs shall be necessitated by reason of the default or neglect of Lessee. Exeept as set forth in Paragraph 6(a) above, upon expiration or termination hereof, Lessee shall restore the Premises to the condition in which it existed upon execution hereof, reasonable wear and tear excepted. 16. Hazardous Substances. Lessee agrees that it will not use, generate, store or dispose of any Hazardous Substance on, under, about or within the Land on Premises in violation of any Federal, State or Local law or regulation. Lessor represents, warrants and agrees (1) that neither Lessor nor, to Lessor's knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Substance on, under, about or within the Property or the Premises in violation of any law or regulation, and (2) that Lessor will not permit any third party to use, generate, store or dispose of any Hazardous Substance on, under, about or within the Property or the Premises in violation of any law or regulation. Lessor and Lessee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous Substance" shall mean petroleum or any petroleum product, asbestos, any substance known to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. This paragraph shall survive the termination of this Agreement. 17. Liability and Indemnitv. Lessee shall at all times comply with all laws and ordinances and all rules and regulations of municipal, state and federal government 5 authorities relating to the installation, maintenance, height, location, use, operation, and removal of the equipment, antenna systems, and other alterations or improvements authorized herein, and shall fully indemnify the Lessor against any loss, damage, cost, or expense which may be sustained or incurred by the Lessor as a result of Lessee's installation, operation, or removal of said improvements, except where said loss, damage, cost or expense was caused solely by the acts or omissions of the Lessor, its agents, servants or employees. 18. Water Tower Marking and Lig,hting Requirements. Lessor acknowledges that it, and not Lessee, shall be responsible for compliance with all Water Tower marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC. Lessor shall indemnify and hold Lessee harmless from any fines or other liabilities caused by Lessor's failure to comply with such requirements. Should Lessee be cited by either the FCC or FAA because the Water Tower is not in compliance and should Lessor fail to cure the conditions of noncompliance within the time frame allowed by the citing agency, Lessee may either terminate this Agreement immediately on notice to Lessor or proceed to cure the conditions of noncompliance at Lessor's expense, which amounts may be deducted from the Rent. 19. Miscellaneous. (a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties. (b) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. (c) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. (d) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Lessor: City of Paris Attn: Kevin Carruth PO Box 9037 Paris, Texas 75461-9037 Lessee: IVortheast Texas Radio Operations & Command, Inc. PO Box 6103 Paris, TX 75461-6103 With copy to: Kent McIlyar, City Attorney PO Box 9037 With copy to: Dr. Wayne Scott, NETROC President 4725 Smallwood Road 6 Paris, TX 75461-9037 Paris, TX 75462 Lessor or Lessee may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt. (e) This Agreement shall be governed by the laws of the State of Texas; and this Agreement shall be performed in Lamar County, Texas; therefore, venue for any action shall lie exclusively in State District Court of Lamar County, Texas. (o Lessee may obtain title insurance on its interest in the Premises. Lessor shall cooperate by executing documentation required by the title insurance company. (g) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent. (h) All Exhibits annexed hereto form material parts of this Agreement. 1 20. Waiver of Lessor's Lien. (a) Lessor waives any lien rights it may have concerning the Lessee Facilities which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the same at any time without Lessor's consent. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. LESSOR (i) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original. LESSEE CITY OF PARIS, TEXAS NORTHEAST TEXAS RADIO OPERATIONS & COMMAND, INC. By: By: Kevin Carruth Title: City Manager Title: Date: Date: 7 LESSOR'S ACKNOWLEDGMENT STATE OF TEXAS § § County of Lamar § This instrument was acknowledged before me on the day of .2009 by Kevin Carruth, City Manager of the City of Paris, Texas, a Texas municipality, on behalf of said municipality. Notary Public, State of Texas My Commission expires: LESSEE'S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF LAMAR § This instrument was acknowledged before me on the day of , 2009, by of Northeast Texas Radio Operations & Command, Inc.. Notary Public, State of Texas My Commission expires: Exhibit B DESCRIPTION OF PREMISES City of Paris East Elevated Water Tower ♦ ~ C'tll"I'~-'lZt-417r~,'1111Gt ~j1( _)1f17 rS FTC-1tE.'1' To1=t'~,'1' C1f77'e12t B111rd1y1c; -2Q'.x 20' :~,'C)1',~~1 Exhibit C DESCRIPTION OF LESSEE FACILITIES NETROC Facilities at City of Paris East Elevated Water Tower Motorola VHF Repeater (146.16/146.76 MHz) Motorola VHF Transmitter (EMWIN 168.7125) Motorola UHF Repeater (443.850/448.850) Alinco Data Tranceiver (144.390) Decibile Products VHF Antenna x2 Decibile Products UHF Antenna Comet VHF Antenna Wincom 2.4GHz Grid Antenna (802.11 HSMM - Internet Radio Linking Project) Wincom 5.3/5.8 GHz Flat Panel Antenna (802.11 HSMM - Internet Radio Linking Project) Additional antennas will be added at future date to support Texas Interoperability Channel Plan for EMCOMM use.