HomeMy WebLinkAbout20130286.tiffRESOLUTION
RE: APPROVE TOWER SITE LEASE AGREEMENT AND AUTHORIZE CHAIR TO SIGN -
JAB WIRELESS, INC., DBA SKYBEAM
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with a Tower Site Lease Agreement
between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, and Jab Wireless, Inc., dba Skybeam, commencing
February 1, 2013, with further terms and conditions being as stated in said Lease Agreement,
and
WHEREAS, after review, the Board deems it advisable to approve said Lease
Agreement, a copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Tower Site Lease Agreement between the County of Weld,
State of Colorado, by and through the Board of County Commissioners of Weld County, and
Jab Wireless, Inc., dba Skybeam, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said Lease Agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 28th day of January, A.D., 2013.
BOARD OF OUNTY COMMISSIONERS
WELD CCOU TYCOLORADO
Weld County Clerk to the Board
unty Attorney � EXCUSED
Date of signature:FEB 1 2 2013
Wiliam F. Garcia, Chair
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Rademacher, Pro-Tem
Barbara Kirkmeyer
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2013-0286
CM0022
TOWER SITE LEASE AGREEMENT
This Agreement is entered into by and between the Weld County Board of County
Commissioners, 1150 'O' Street, Greeley, Colorado 80632, hereinafter referred to as "Lessor,"
and Jab Wireless, Inc., d/b/a/ Skybeam, a Colorado Corporation, having a principle place of
business at 619 SW 14th Street, Loveland, Colorado 80537, hereinafter referred to as "Lessee."
BACKGROUND INFORMATION
A. Lessor is the current owner of a certain communications tower and building (the Tower)
located on certain real property at 18940 County Road 38, Platteville, in Weld County,
Colorado 80651 with a legal description as follows:
11419-B PT N2N2 6 3 65 COM NW COR SEC N89D4I'E 2189.80' TO TRUE POB
N89D4I'E 839.16' SOD18'E 30' S29D41'W 839.16' THENCE N30DI8'W 839.16'
NOD18'W 30' TO TRUE POB (7.000A M/L) (.58R)
B. Lessee is the legal successor Whatwire, LLC, and as such has acquired Whatwire's
communications equipment currently located on the Tower. To the extent that
Whatwire's equipment on the Tower was governed by a separate Lease Agreement
(Document ## 2005-1063 and 2007-0993), Lessor hereby consents to such succession.
Lessor and Lessee agree that this Lease Agreement fully supersedes said lease agreement
with Whatwire, LLC. Lessor and Lessee further agree that, to the extent that the lease
agreement with Whatwire included three separate towers, this Lease Agreement shall
only govern a single Tower, as described in subsection A of this section. Lessee disclaims
any interest in any equipment that may be installed on any other tower. Should Lessee
desire to lease space from Lessor on any other tower, a separate agreement or addendum
to this Agreement, would be required.
C. Lessee desires to lease space on and in proximity to the Tower from Lessor, and Lessor
desires to lease space on and in proximity to the Tower to Lessee, on certain terms and
conditions.
D. The parties desire to reduce the terms of their agreement to writing.
NOW THEREFORE, in consideration of the covenants herein contained, Lessor and
Lessee agree as follows:
AGREEMENT
1. RECITALS: The above recitals are incorporated by reference, as though fully set forth
herein.
2. LEASE OF TOWER FACILITIES AND SITE: Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, equipment space on the Tower pursuant to the terms
and conditions set forth herein. During the term of this Lease, Lessor hereby grants
permission to Lessee to install, maintain, and operate on the Tower, Communications
Equipment as set forth in Exhibit A, which is attached hereto and incorporated herein.
2013-0286
3. RENTAL: Lessee shall pay to Lessor as rent during the term of this Lease, commencing
February 1, 2013, or upon installation of Lessee's equipment on the Tower, whichever
later occurs ("the Commencement Date"), One Thousand Dollars ($1,000.00) per month..
All applicable compensation will be delivered to Lessor at the address listed above or by
direct deposit within thirty (30) days of the end of the previous month.
4. ACCESS: Lessor warrants and represents that the Lessor owns and has title to the
Premises, structures and other improvements located at the Premises. Lessor shall
provide Lessee with access to Tower and Tower site 24 hours per day, 7 days per week,
365 days per year for installation, maintenance and removal of Lessee's equipment.
Lessee shall secure all access gates and building locks when entering or leaving the
Tower site. Lessee agrees to permit only authorized employees of Lessee or persons
under Lessee's direct supervision to enter Tower site. Lessee will typically provide
Lessor with 24 hour advanced notice prior to requiring access to Lessee's equipment.
Access will typically be during normal business hours. Exceptions may be required for
emergency service restoration and regular maintenance during non -peak usage times.
5. UTILITIES: Lessor represents that utilities adequate for Lessee's use of the Tower site
are available. Lessor will provide Lessee with access to 110 VAC, 5 Amps (550 Watts)
of electrical service.
6. INSTALLATION: As of the Commencement Date, Lessee's equipment and devices are
already installed on the Tower. However, as to installation of any further equipment and
devices on the Tower, the following shall apply:
a. Prior to installation of any equipment or devices, Lessee shall provide Lessor with
industry standard site drawings detailed where Lessee proposes to locate its
equipment and / or antenna(s), and building. Lessor shall review Lessee's
proposal and either approve or specify the required changes within a reasonable
time. Lessee shall not be required to pay any rent until such time that Lessee's
proposal shall be approved by Lessor.
b. Lessee's communications equipment shall be installed at its sole expense in a
professional manner so as not to interfere with or cause problems to any of the
equipment or devices of Lessor or any equipment or devices of any other lessee
which is already located on the Tower.
c. All equipment provided by Lessee shall be installed in compliance with all
applicable building and electrical codes and regulations of any government
agencies having jurisdiction.
d. All equipment installed by Lessee on Lessor's Tower shall be firmly anchored to
the Tower structure. Electrical conduits and cables shall be attached to the Tower
at intervals not to exceed four (4) feet. All tower fastening devices used by the
Lessee shall be made of stainless steel or galvanized to prevent rusting.
e. Lessee may place a portable building for equipment within the boundaries of
Lessor's Tower site. If Lessee elects to place such a portable building for
equipment within the boundaries of Lessor's Tower site, Lessee shall arrange for
and pay all costs of opening and / or extending the enclosure to accommodate the
portable building. All materials and construction used to extend or repair any
currently existing security fence shall be of like design and quality to the existing
fence. Said portable equipment building shall at all times be the responsibility of
Lessee, and Lessee assumes all liability for any and all maintenance, damages as a
result of the building placement, and the like.
7. INTERFERENCE OR DAMAGE TO LESSOR'S SYSTEM:
a. Lessee shall be liable for any damages or problems incurred or sustained by
Lessor to its facilities due to acts of Lessee, its agents, contractors, or
representatives, as such acts relate to the installation, operation, maintenance,
repair, replacement of Lessee's equipment at Lessor's Tower site.
b. Lessee shall ensure that Lessee's equipment does not interfere with the operation
of Lessor's 911 next generation planning/improvements, or any other lessee's
previously installed communication equipment. In the event of discovered
interference, Lessee shall take immediate action as well as work closely with
Lessor to resolve the cause of the interference. Should it be determined that
interference is a result of Lessee's equipment and cannot be corrected, Lessor
agrees to allow Lessee up to ninety (90) days to find a suitable replacement
location.
8. TOWER AND EQUIPMENT MAINTENANCE
a. Lessor shall be solely responsible for the performance of any routine,
extraordinary, or emergency repairs or maintenance on Lessor's Tower. Lessee
shall be solely responsible for the performance of any routine, extraordinary, or
emergency repairs or maintenance on Lessor's Tower that are caused by or result
from Lessee's use of Lessor's Tower.
b. Lessor shall be responsible for compliance with all regulations requiring painting
and / or lighting of Lessor's tower, including operation, maintenance and
inspection of the Tower, lighting, and alarm systems.
c. Lessee shall be solely responsible for the performance of any routine,
extraordinary, or emergency repairs or maintenance on Lessee's equipment
located at Lessor's Tower site. Lessee shall maintain its property in accordance
with reasonable engineering standards to assure that at all times Lessee and its
operation are in conformance with the applicable requirements of the Federal
Communications Commission and / or all other public authorities with
jurisdiction over Lessee.
d. Lessee will (1) operate and maintain Lessee's equipment in a safe and good
condition, (2) keep the premises free from trash, debris and waste resulting from
the use thereof by Lessee, and (3) repair all damage to the premises in connection
with installation, maintenance and removal of the equipment.
e. Lessor shall have the right to make any reasonable changes, alterations or
improvements to the premises, or any part thereof, so long as such reasonable
change, alterations or improvements do not interfere with Lessee's reasonable use
of the premises under this Agreement. If any change, alteration or improvement
contemplated by Lessor may result in a temporary disruption of service to Lessee,
Lessor shall give notice to Lessee at least thirty (30) days prior to the anticipated
possible disruption.
f. Lessor shall not be liable to Lessee for any unintentional interruption of service of
Lessee or for unintentional interference with the operation of the equipment and
service of Lessee arising in any manner from the use of the Tower or Tower site
or both by Lessor. Lessor shall use its best efforts to resolve interference conflicts
as soon as feasible to the end of restoring full service.
9. NONEXCLUSIVE LEASE: Lessor shall have the right to lease other portions of its radio
tower facility to other parties. Lessor shall not permit any subsequent lessee to interfere
with the performance of Lessee's communication system, or to encroach upon the space
located at the Tower site and specifically leased to Lessee hereunder.
10. ASSIGNMENT:
a. Lessee may assign its rights and responsibilities in this Agreement to any entity
controlling, controlled by, or under the common control of Lessee, or to any party
that has subsequently acquired substantially all of Lessee's assets related to the
use of the tower equipment, with the condition that the assignment must be for
entire Agreement, and the assignee agrees to be bound by all of the terms and
conditions of the Agreement. Lessee shall give written notice to Lessor within 30
days of the assignment of the Agreement. Lessee shall not assign or transfer this
Agreement to any other entity not above named without the prior written consent
of Lessor, which consent shall not be unreasonably withheld. In addition, Lessee
shall not change or modify the frequency, power, or character of Lessee's
equipment, without Lessor's prior consent, which consent shall not be
unreasonably withheld.
b. Lessor may assign its rights and responsibilities in this Agreement to any person
or entity who acquires ownership of the Tower Site premises from Lessor, and the
assignee agrees to be bound by all the terms and conditions of the Agreement.
Lessor shall give written notice to Lessee within 30 days of the assignment of the
Agreement. Lessor shall not otherwise assign or trqansfer this Agreement to any
other entity without the prior written consent of Lessee, which consent shall not
be unreasonably withheld.
11. INDEMNITY:
a. To the extent legally possible, Lessor shall not be liable for, and Lessee agrees to
indemnify and hold Lessor harmless against any and all losses, expenses, claims,
or causes of action of every kind and character on account of damages to or loss
of any property or on account of injury to or death of any person or persons
directly or indirectly resulting from or arising out of Lessee's use of Lessor's
Tower site. Lessee shall defend each claim asserted and suit brought involving
any matter of which Lessor is indemnified hereunder, and shall pay all costs,
expenses, and attorney fees incidental thereto, and all judgments resulting
therefrom; and Lessor shall have the right at its option to participate in the defense
of each suit or proceeding without relieving Lessee of any obligation hereunder.
b. Lessee shall obtain and maintain in force during the term of this Agreement
statutory Worker's Compensation Insurance and comprehensive general liability
insurance, including blanket contractual liability, automobile, and complete
operations insurance coverage with minimum limits of One Million Dollars
($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) per
aggregate. Lessee shall provide a certificate of insurance to the LESSOR within
30 days after the effective date and each renewal date of the contract. All
insurance required hereunder shall remain in force for the entire term of this
Lease Agreement.
c. Except to the extent caused by Lessor's gross negligence or intentional
misconduct, Lessee waives and releases Lessor, its employees, and agents from
all claims for any loss, injury, death, or damage to persons, property, or to the
Lessee's business occasioned by theft, act of God, public enemy, injunction, riot,
strike, insurrection, wars, court order, requisition, order of governmental body or
authority, fire, explosion, failing objects, steam, rain, snow, water, leak or flow of
water, or from any other place, or from breakage, leakage, obstruction, or other
defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or
lighting fixtures of the Building located on the Tower Site ("the Building"), or
from construction, repair, or alteration of the Building, or from any cause beyond
Lessor's reasonable control.
12. WASTE, NUISANCE, HAZARDOUS SUBSTANCE, OR UNLAWFUL ACTIVITY:
a. Lessee shall not create any waste or nuisance on or around the Tower site, and
shall not use the Tower or the Tower site for any unlawful purpose.
b. Lessor represents that it has no knowledge of any substance, chemical or waste
(collectively, "substance") on the Tower site that is identified as hazardous, toxic
or dangerous in any applicable federal, state or local law regulation. Lessee shall
not introduce or use any such substance on the Tower site in violation of any
applicable law.
13. GOVERNMENT APPROVAL:
a. Lessee shall be responsible for obtaining any applicable permits or licenses
required by government agencies, as such pertain to the installation, operation,
maintenance, or repair, replacement, or ownership of Lessee's equipment located
at Lessor's Tower site.
b. If, after execution of this Lease, Lessee is unable to continue to occupy Lessor's
Tower site due to action of any government agency, or for other reasons,
including damage to or destruction of the Tower or equipment building, this
Lease may be canceled without obligation.
14. TERM OF LEASE:
a. This Lease shall be effective for five (5) years, commencing February 1, 2013,
and shall be automatically renewable on an annual basis thereafter, unless sooner
terminated by either party pursuant to the provisions hereinafter set forth.
b. Either party may terminate this Lease by giving the other party at ninety (90) days
written notice of its intention to terminate this Lease. Upon termination of the
Agreement for any reason, Lessee shall remove its equipment and material
installed on Tower or at the Tower site within sixty (60) days after termination of
this Lease, and shall leave Tower and the Tower site in substantially the same
condition as it existed prior to the date when Lessee installed its communications
equipment. Lessee shall continue to pay rent as set forth in this Agreement until
all of its equipment has been removed from the Tower site.
15. COMPLIANCE WITH LAWS: Lessor and Lessee agree to comply with the applicable
provisions of all federal, state or local laws or ordinances and all lawful orders, rules, and
regulations issued thereunder; and any provisions, representations or agreements, or
contractual clauses required thereby to be included or incorporated by reference or
operation of law in this Agreement.
16. DEFAULT:
a.
b.
c.
If either party is in default under any of the terms and provisions contained herein,
the non -defaulting party shall notify the defaulting party of the default. The
defaulting party shall then have thirty (30) days after such notice in which to cure
any default. If any default is not capable of being cured within the requisite
period of time, then so long as the party charged with the default has diligently
pursued such cure of the default within the prescribed period, the defaulting party
shall be given the necessary time to cure the default.
If the defaulting party is Lessee, and the default continues after the period for cure
passes, Lessor may, at its election and upon an additional thirty (30) days notice
to Lessee, cancel and terminate this Agreement and, upon the expiration of the
thirty (30) days notice to terminate, immediately re-enter and repossess the
premises without being guilty of any manner of trespass or forcible entry or
detainer. Upon repossession by Lessor, this Agreement shall be considered
terminated and Lessee shall have sixty (60) days after termination to remove its
antennae and other communication equipment, after which title to such antennae
and other communication equipment shall be forfeited. If the defaulting party is
Lessor, and the default continues after the period for cure passes, Lessee shall the
right to terminate this Lease or to pursue any other available legal remedies, or
both.
No waiver of any default or breach of any one or more of the conditions or
covenants of this Agreement by either party shall be deemed to imply or
constitute a waiver of any succeeding or other breach thereunder.
17. NOTICES: Any notice to be given under this Agreement shall either be hand delivered,
with signed receipt, or mailed to the party to be notified at the address set forth herein,
with signed receipt, or by facsimile with confirmation, until such time as written notice of
a change is received from the party wishing to make a change of address. Any notice so
mailed and any notice served by personal delivery shall be deemed delivered and
effective upon receipt or upon attempted delivery. This method of notification shall be
used in all instances, except for emergency situations when immediate notification to the
parties is required.
Any demand or notice to either party may be given to the other party by addressing the
written notice to:
Lessor: Board of County Commissioners of Weld County, Colorado
P.O. Box 758, 1150 O Street
Greeley, CO 80632
Lessee: Skybeam Corporation
619 SW 14th Street
Loveland, Colorado 80537
18. ENTIRE AGREEMENT — MODIFICATION: This Agreement contains the entire
Agreement and understanding between the parties to this Agreement and supersedes any
other agreements concerning the subject matter of this transaction, whether oral or
written. No modification, amendment, novation, renewal, or other alteration of or to this
Agreement and the attached exhibits shall be deemed valid or of any force or effect
whatsoever, unless mutually agreed upon in writing by the undersigned parties.
19. SEVERABILITY: If any term or condition of this Agreement shall be held to be invalid,
illegal, or unenforceable, this Agreement shall be construed and enforced without such a
provision, to the extent this Agreement is then capable of execution within the original
intent of the parties.
20. NO THIRD PARTY BENEFICIARY: It is expressly understood and agreed that
enforcement of the terms and conditions of this Agreement, and all rights of action
related to such enforcement, shall be strictly reserved to the undersigned parties, and
nothing contained in this Agreement shall give or allow any claim or right of action
whatsoever by any other person not included in this Agreement. It is the express
intention of the undersigned parties, that any third parties receiving services or benefits
under this Agreement shall be deemed an incidental beneficiary only.
21. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be
construed or interpreted as a waiver, express or implied, of any of the immunities, rights,
benefits, protections or other provisions, of the Colorado Governmental Immunity Act
§§24-10-101 et seq., as applicable now or hereafter amended.
22. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of
the State of Colorado, and venue shall lie within Weld County, Colorado.
23. BUDGET CONSTRAINTS. Nothing in this Agreement shall be construed to require the
Weld County Board of County Commissioners to provide funding for any purpose under
this Agreement that has not previously been budgeted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
originals on the dates shown below our respective signatures.
Lessor:
BOARD OF COUNTY COMMISSIONERS
OF WELD COUNTY
JAN 2 8 2013
Lessee:
Jabs Wireless, d/b/a Skybeam
By:
Name:
Title:
Exhibit A to Tower Site Lease Agreement
Equipment List on La Salle Tower
6 Motorola / Cambium 430 5.7 Access Points
6 Motorola / Canopy (FSK) 2.4 Access Points
3 Motorola / Canopy (FSK) 5.2 Access Points
1 Dragon Wave 11 Ghz radio/ on a Radio Waves 3 foot Dish
Hello