HomeMy WebLinkAbout20022618.tiff �'
MEMORANDUM
tcw � � TO: FILE April 7, 2004
linkFROM: Carol Harding, Clerk to the Board Office Manager oordinator
COLORADO SUBJECT: Document Not Fully Executed ( . L zi tV�
The original of Document #2002-2618 (HS0009), which was approved by the Board of County
Commissioners on September 25,2002,and executed by the Board on October 1,2002,was never
received back in the Clerk to the Board's Office. All attempts to obtain copies of the document have
been unsuccessful,therefore,this matter is being administratively closed and no further action will
be taken by staff to obtain copies of the fully executed agreement.
2002-2618
HS0009
MEMORANDUM
TO: Lee Morrison - County Attorney March 28, 2003
Wi` a FROM: Donna Bechler- Clerk to the Board
COLORADO SUBJECT: Executed Document(s)
I am enclosing a copy of a document we are holding in our temporary files
until we receive a fully executed original back from your office. If you have
a signed original, would you please return it to us, or check to see if signed
copies are in the process of being returned to you from the outside
agencies.
Thank you for your help. If you have any questions, you can reach me at
extension-4227.
Donna Bechler
Deputy Clerk to the Board
/�-� Z` o 42 -4- /I/
C Ct aj
RESOLUTION
RE: APPROVE MDU BROADBAND SERVICES AGREEMENT GRANT OF EASEMENT
AND AUTHORIZE CHAIR TO SIGN -AT&T BROADBAND OF COLORADO, LLC
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 MDU Broadband Services Agreement
Grant of Easement from the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, and NCMC, Inc., to AT&T Broadband of Colorado,
LLC, commencing January 1, 2002, with further terms and conditions being as stated in said
Agreement Grant of Easement, and
WHEREAS, after review, the Board deems it advisable to approve said Agreement
Grant of Easement, 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 MDU Broadband Services Agreement Grant of Easement from
the County of Weld, State of Colorado, by and through the Board of County Commissioners of
Weld County, and NCMC, Inc., to AT&T Broadband of Colorado, LLC, be, and hereby is,
approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said Agreement Grant of Easement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 25th day of September, A.D., 2002.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, C LORADO
ATTEST: J .- _ / 11 E I.,,41 d%r4 SS
"`mil '� Glenn Vaad, Chair
Weld County Clerk to the liar: - ,.,,cy,C4
[1861
:� '�{J XCUSED
���avid E. L.✓., Pro-Tem
BY: co.a/L C-) =ins `
Deputy Clerk to the Boa + / F Ir y. \ �j�c et/
NCL:l -- >" 1(�l J. eile
APPROVED AS TOF9 • EXCUSED
Wa iam H. Jer e
��� ��
unty Attorney e- c, ---
/0/1 Robert D. Masden
Date of signature:
2002-2618
HS0009
MDU SERVICE AGREEMENT-HOSPITAL
THIS AGREEMENT(this"Agreement")dated as of January 1,2002 is made and entered into by and between AT&T Broadband of
Colorado,LLC ("Company"),and Banner Health System,Operator of North Colorado Medical Center ("Operator"),which leases
certain real estate and improvements commonly known as North Colorado Medical Center located at 1801 16'° Street, Greeley
Colorado (the "Premises"), consisting of 288 outlets located in 288 patient rooms equipped with
converter boxes, 14 common areas (including, without limitation, lounges, lobbies and conference rooms, hereafter "Common
Rooms") equipped with 0 converter boxes,plus any such rooms added or constructed in the future (collectively, the "Rooms"). A legal
description of the Premises is attached hereto as Exhibit A. Company owns and operates a cable television system in Greeley Colorado (the
"System")pursuant to a franchise agreement,permit or other legal authority to operate the System(as extended or renewed from time to time,the"Franchise").
Operator and Company desire to provide for Company's access to the Premises in order to install the equipment necessary to provide multi-channel video
programming and any other communications and information services that Company may lawfully provide(the"Services")to the Premises,on the terms and
conditions provided herein. Therefore,the parties agree as follows:
I. RIGHT OF ACCESS;EASEMENT. Operator shall cause NCMC,Inc. and Weld County,Colorado(the"Owners")to grant,bargain and convey to Company
an irrevocable easement in gross across,under and over the Premises as necessary or desirable for the routing,installation,maintenance,service and operation of
the Equipment (as hereinafter defined),and Operator grants to Company the right to market and provide the Services. The Grant of Easement is attached as
Exhibit B and may be recorded in the appropriate records. Operator agrees that Company may from time to time enter into various agreements or arrangements
with its approved designees,agents or authorized vendors(collectively,the"Agents")and access to the Premises granted by Operator pursuant to this Section will
extend to such Agents. After the Premises have been wired for the provision of Services,Operator will provide Company's employees and Agents access to the
Premises at reasonable times for the exercise of its easement rights hereunder. In addition to the other rights granted by Operator hereunder,upon termination of
this Agreement,Operator hereby grants,bargains and conveys to Company the right to enter the Premises in order to remove the Equipment from the Premises if
Company so desires.
2. SERVICES. Company agrees to provide the Services to the Rooms on the Premises. Operator will pay Company a monthly service fee of
$ 7.50 per Room and$35.00 for Common Areas for a total monthly billing of$ 2650.00 ,plus applicable franchise fees,
govemmental access fees,and sales taxes("Monthly Service Charge"). Company may increase the Monthly Service Charge upon 30 days'notice to Operator.
The initial Monthly Service Charge is guaranteed not to increase for 12 months from the date of the Agreement,and may increase no more
than 5 %during any twelve month period thereafter. All statements rendered pursuant to this Agreement will be due when rendered and will be subject
to late charges of 1%per month if not paid within 30 days of receipt thereof. The Services will initially include those listed on Exhibit C attached hereto and
incorporated herein by this reference. Company in its discretion may make additions,deletions or modifications to its program line-up and/or the other Services.
Premium services may not be shown in Common Rooms of the Premises.
3. OTHER SYSTEMS. In consideration of Company's investment in the Equipment and other valuable consideration,for a period of time ending upon the earlier
of(a)the date of termination of this Agreement and (b) the 5th anniversary of the effective date of this Agreement, Operator will not,
without the prior written consent of Company,operate or install or permit the operation or installation of any other antenna,receiver,converter,cable or other
signal amplification system on the Premises for use in connection with television or radio equipment.
4. TERM. This Agreement will be effective January I,2002 and continue for a period of 5 years(the"Initial Term")and will automatically renew for additional
terms of 0 years(each a"Renewal Term"),unless either party gives the other written notice of non-renewal at least six months prior to the end of the Initial Term
or then-effective Renewal Term,as appropriate.
COMPANY AND OPERATOR AGREE TO THE ADDITIONAL TERMS AND CONDITIONS ATTACHED TO THIS AGREEMENT AND OTHERWISE
APPENDED HERETO. THE PARTIES HAVE EXECUTED THIS AGREEMENT BY THEIR DULY AUTHORIZED REPRESENTATIVES.
Banner Health System,Operator of Northern Colorado Medical
Center
OPERATOR Offering Services as AT&T BROADBAND,of Colorado LLC
Signature Signature
Name(Typed or Printed) Name(Typed or Printed)
Title Title
Street Address Street Address
3737 W 10th Street Greeley Colorado 80634
City,State Zip City,State Zip
970-336-6009
Phone number Phone number
STATE OF ) STATE OF
) ss. ) ss.
COUNTY OF ) COUNTY OF
This instrument was acknowledged before me on ,200_,by This instrument was acknowledged before me on ,200_,by
as of as of
•
Given under my hand and seal of office. Given under my hand and seal of office.
My commission expires: My commission expires:
Notary Public Notary Public
[Seal] Title [Seal] Title
EES\52358\406383.02
ADDITIONAL TERMS AND CONDITIONS
A. DAMAGE TO THE PREMISES OR EQUIPMENT;INDEMNIFICATION;SURVIVAL.
(i) Company will repair any damage to the Premises caused by Company,its employees,or the Agents. Company will hold harmless and indemnify Owner and
Operator from and against any and all losses or damages (including reasonable attomeys' fees) resulting from Company's or the Agents' installation, maintenance, service,
removal or operation of the Equipment or any other equipment of Agents,except loss or damage arising from any negligent or intentional act or omission of Owner or its agents or
employees,or any guest of the Premises.
(ii) Operator will repair any damage to the Equipment caused by Operator,its agents,or employees,or any guest of the Premises. Operator will hold harmless and
indemnify Company from and against any and all losses or damages(including reasonable attomeys' fees)arising from or with respect to(a)any negligent or intentional act or
omission of Operator or its agents or employees, or any guest of the Premises,or(b)any claim,demand,legal proceeding or similar action instituted by any person or entity
providing multichannel video programming or other services similar in nature to the Services provided to the Premises as of or prior to the date of this Agreement,or its successor
or assign.
(iii) The rights and obligations set forth in this Section A(indemnification for events occurring during the term of the Agreement)and the last sentence of Section 1
(permitting removal of Equipment)will survive termination of this Agreement.
B. INSURANCE. Company will maintain general liability and property damage liability insurance relating to its activities hereunder.
C. EQUIPMENT. Company may install,maintain,service,operate and upgrade on the Premises coaxial cable and/or fiber optic line,internal wiring,amplifiers,converters
and other equipment necessary for the provision of the Services(the"Equipment"). The Equipment will at all times be owned by,and remain the property of,Company,whether
or not attached to or incorporated in the Premises,and Operator will not have or obtain any right,title or interest therein. The Equipment does not constitute a fixture of the
Premises. Operator will not,and will not permit any third party to,attach to or use in any manner the Equipment or any portion thereof. Operator will have no obligation to
service or maintain the Equipment. Company will have the right to use other telecommunications equipment or wiring on the Premises,regardless of ownership,for delivery of the
Services. Operator shall provide without charge adequate space and electricity for the Equipment.
D. FORCE MAJEURE. Neither party will be deemed to be in breach of this Agreement if it is unable to perform its obligations hereunder as a result of the occurrence of a
failure of equipment or facilities,an event of"force majeure,"or other causes beyond such party's reasonable ability to control.
E. SUCCESSORS TO BOTH PARTIES; RELATED PARTIES TO COMPANY.The benefits and obligations of this Agreement will inure to and be binding upon the
successors,assigns,heirs,and personal representatives of Company and Operator. The rights and obligations of Company under this Agreement may be enjoined,enforced or
performed,as the case may be,by Company or any other entity controlling,controlled by or under common control with Company.
F. TERMINATION. This Agreement may be tenninated prior to expiration of its term(a)by either party on 30 days'written notice,in the event of material breach of this
Agreement,unless the other party cures or commences to cure such breach during such 30-day period and diligently proceeds with such cure;or(b)by Company upon at least 60
days'written notice if Company is unable to continue distribution of the Services due to any law,rule,regulation,judgment,contract with third party or other reason beyond the
reasonable control of Company. In no event will either party be liable to the other for incidental or consequential damages.
G. LEGAL STATUS. This Agreement does not create any agency,employment,joint employer,joint venture or partnership between Company and Operator. Neither party
will have the right,power or authority to act for the other in any manner.
H. ENGINEERING REVIEW. Activation and installation of the Services are subject to engineering review by Company,including testing of equipment or facilities not
provided by Company. If Company determines that activation of the Services will result in unanticipated expenses or that existing equipment is deficient,Company will have the
right to terminate this Agreement upon written notice to Operator. Upon such termination,Company will refund to Operator any amounts prepaid hereunder in accordance with
Company's refund policies.
I. CONVERTER BOXES. Company has delivered to Operator the number of converter boxes for placement in common rooms set forth in the first paragraph of this
Agreement. Such converter boxes shall be considered Equipment. Operator shall be responsible for any loss of or damage to the Equipment.
J. CONFIDENTIALITY. Operator and/or any person signing on behalf of Operator hereby agree not to,directly or indirectly,disclose to any third party the terms of this
Agreement or any Addendum,except as may be required by law. Notwithstanding the foregoing,the teens of this Agreement may be disclosed by Operator, upon notice to
Company,to a purchaser or bona fide potential purchaser of the Premises.
K. LIQUIDATED DAMAGES. In view of the difficulty of determining the amount of damages which may result from Operator terminating this Agreement without adequate
cause,Company may elect as its remedy payment from Operator to Company,not as a penalty but as liquidated damages,an amount equal to the product of(i)75%of the Monthly
Service Charge in effect immediately preceding the effective date of such termination,multiplied by(ii)the number of full or partial months remaining in the tens,including any
renewal term,if applicable.
L. LEGAL ACTIONS. If legal action is necessary to enforce any provision of this Agreement or any agreement relating hereto,the prevailing party in such action will be
entitled to recover its costs and expenses of such action,including reasonable attorneys'fees.Operator acknowledges that the breach by Operator of any of its obligations under
this Agreement cannot be reasonably or adequately compensated in damages in any action at law and that a breach of this Agreement by Operator will cause Company irreparable
injury and damage;Operator,therefore,expressly agrees that in the event of a breach or threatened breach of this Agreement,Company will be entitled to injunctive and other
equitable relief against Operator. Resort to equitable relief will not in any way be construed as a waiver of any other rights or remedies which Company may have for damages or
otherwise.
M. AUTHORIZATIONS.Owner represents and warrants that it is the record holder of fee title to the Premises. The person signing on behalf of the Operator represents that
he/she is the Operator of the Premises or the authorized agent of Operator,with full authority to bind Operator to the terms and conditions of this Agreement. This Agreement will
not be binding upon Company until signed by an authorized representative of Company.
N. NOTICES. Any notices pursuant to this Agreement will be validly given or served if in writing delivered personally or sent,postage prepaid,either by U.S.first class mail
or telecopy,to the addresses set forth in this Agreement;or to such other addresses as either party may designate to the other in writing. Delivery of any notice will be deemed to
be effective:(i)five days after mailing,for first class U.S.mail or(ii)on the telecopy confirmation date,for telecopy or(iii)on the date delivered for personal delivery.
O. MISCELLANEOUS PROVISIONS.This Agreement supersedes any and all other access agreements,either oral or written,between the parties hereto other than any grant
of easement entered into by the parties concurrently with this Agreement. This Agreement(and any such grant of easement)contains the entire agreement between Operator and
Company and may not be amended except by an agreement in writing signed by the parties. Whenever possible,each provision of this Agreement will be interpreted in such a
manner as to be effective and valid under applicable law,but if any provision of this Agreement will be prohibited by or invalid under applicable law,such provision will be
ineffective only to the extent of such prohibition or invalidity,without invalidating the remainder of such provision or the remaining provisions of this Agreement.
P. ADDENDA. The parties may execute certain Addenda,including but not limited to a Pre-Wire Installation Addendum. Upon execution,any such Addenda will become a
part of this Agreement.
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EXHIBIT A
To
MDU Service Agreement
dated
January I,2002
between
Banner Health System Operator of Northern Colorado Medical Center
and
AT&T Broadband of Colorado,LLC
Legal Description
1801 l6"Street
State of Colorado
County of Weld
City of Greeley
Section 7,Township 5,Range 65
EES\52358\406383.02
MDU BROADBAND SERVICES AGREEMENT
Exhibit B
GRANT OF EASEMENT
RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO:
AT&T Broadband
Attention: Commercial Accounts Director
THIS GRANT OF EASEMENT ("Easement"), dated January 1 2002 , is made pursuant to that certain MDU Broadband Services
Agreement dated January I, 2002 , between Banner Health System, Operator of North Colorado Medcial Center and AT&T Broadband of
Colorado, LLC ("Agreement") by NCMC,Inc., and Weld County (GRANTOR"), the fee owner of certain real property located in Greeley
Colorado County, Weld , and commonly known as NCMC, Inc., and Weld County, Colorado , and
located at 1801 16°Street , (the "Premises"),the legal description of which is
attached hereto as Exhibit "A" and incorporated herein by this reference as though fully set forth, to AT&T Broadband of Colorado, LLC
("GRANTEE")for good and valuable consideration,the adequacy and receipt of which are hereby acknowledged.
A. GRANT OF EASEMENT AND ACCESS RIGHTS. GRANTOR,on behalf of itself,its successors and assigns,hereby grants and conveys to GRANTEE,its
successors and assigns,a non-exclusive Easement in gross on,over,under,within,and through the Premises(both land and improvements)as necessary or desirable for: (i)
the routing and installation of,in accordance with mutually approved plans,the Facilities(as defined in the MDU Broadband Service Agreement)and(ii)the maintenance,
service,use,removal and operation of such Facilities,together with rights of access,ingress and egress on and over the Premises as necessary for the use and enjoyment
of the Easement herein granted. In addition,GRANTEE shall have the right to construct and install (in accordance with the Plans as set forth below)and use any
cabling, wiring, (including home-run cable wiring and telephony inside wiring), power supplies, risen, conduits, distribution wiring and facilities, cross-connect
facilities and/or distribution frames,and any rights of way and entrance facilities within and into the Premises and all buildings thereon,as necessary or useful,or which
may become necessary or useful, for the provision of Services,whether owned,installed, controlled or maintained by GRANTEE or not. GRANTOR hereby also
grants GRANTEE the right to install on the roof of any building on the Premises an antenna or other equipment,as necessary or desirable for the provision of Services
to the Residents,together with any wiring or cabling from the antenna to the rest of the Facilities. GRANTOR agrees that GRANTEE may from time to time enter into
various agreements or arrangements with its approved assignees,designees,agents or authorized vendors(collectively,"Agents")and access to the Premises granted by
GRANTOR pursuant to this Section will extend to such Agents. GRANTOR will provide GRANTEE's employees and Agents access to necessary portions of the Premises
not readily accessible upon reasonable notice to perform installation and maintenance functions. In the event of an outage or other emergency,GRANTOR will provide
access to necessary portions of the Premises twenty-four(24)hours a day,seven(7)days a week so that GRANTEE may perform emergency repairs but only so long as such
access does not interfere with the care and treatment of patients of the facility. The Easement hereby granted,and the covenants and agreements provided herein,shall run
with the land and the burden upon the applicable Premises shall bind GRANTOR,and each and every subsequent owner thereof,for the Term of this Agreement.
B. TERM OF EASEMENT. This easement shall commence on the date appearing in the first paragraph hereof and shall continue for an initial period of five
(5)years. Thereafter,this easement shall be automatically renewed for consecutive terms of five(5)years each,unless otherwise terminated by the parties as set forth
in the Agreement. The notice of termination of the easement will be deemed to have been properly given, served and received only as follows: (i)if delivered by
messenger,when delivered (ii)if delivered by a reputable overnight express courier,freight prepaid,when delivered or(iii)if mailed by deposit in the United States
Mail,certified or registered,postage prepaid,retum receipt requested,when received or refused.
C. WARRANTIES. GRANTOR and the individual(s)signing for GRANTOR,represents and warrants that he/she/it has full power and authority to execute
this Grant of Easement,and that any and all necessary corporate and/or partnership action authorizing same has been taken.
EXECUTED on this day of ,2002.
Grantor: NCMC,Inc.
By:
Name:
Title:
) (Print or type)
STATE OF
)ss.
COUNTY OF
On this day of ,200 ,before me personally appeared to me personally
known,who being duly sworn,did say that signed the foregoing instrument and that said instrument was signed and sealed on behalf of
in his/her capacity as ,and acknowledged said instrument to
be the free act and deed of
IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed by official seal in the County and State aforesaid,the day and year first above written.
[SEAL]
Notary Public:
My Commission Expires:
WITNESS DATE
WITNESS DATE
EES\52358\406383.02
Grantor: Weld County")
B}^
Name: Glenn Vaad
Title: Chair
(Print or type)
STATE OF COLORADO
)ss.
COUNTY OF WELD
On this 25th day of September ,2002 ,before me personally appeared - . .
known,who being duly sworn,did say that Glenn Vaad signed the foregoing instrument and that said instrument was signed a•,..4a1eel�/f
the Weld county Board of Contmi cc-inner s in his/her capacity as Chair ,and a /o Meei4 . , to
'
be the free act and deed of Weld County •'•.,�� i
IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed by official seal in the County and State aforesaid,the• y and yeStraRONrittot.
I �n KAHL
[SEAL]: J�'•.. Q�
Notary Public: _ 'fie .n �w,Sl��.....
APr/`i"1// My Commission Expires May 15.2005
� ( My Commission Expires:
DATE 09/25/2002
1661 I ►•'
• - -I• * r DATE 09/25/2002
Oft p
er to the Board
EES\52358\406383.02
EXHIBIT C
To
MDU Service Agreement
dated
January 1,2002
between
Banner Health System,Operator of Northern Colorado Medical Center
and
AT&T Broadband of Colorado,LLC
The Services
Initial Channel Line-Up
See Attached
EES\52358\406383.02
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