HomeMy WebLinkAbout20051063 RESOLUTION
RE: APPROVE COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT AND
AUTHORIZE CHAIR TO SIGN -WIRELESS ADVANCED COMMUNICATIONS
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 Communications Tower and Site Lease
Agreement between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County,on behalf of the Weld County Regional Communications Center,
and Wireless Advanced Communications, commencing March 1, 2005, 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 Communications Tower and Site Lease Agreement between the County
of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
on behalf of the Weld County Regional Communications Center, and Wireless Advanced
Communications 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 March, A.D., 2005, nunc pro tunc March 1, 2005.
BOARD OF COUNTY COMMISSIONERS
"v
Le) WELD COUNTY, COLORADO
Stteen
William H erke, Chair
t wed Clerk to the Board
fleili' ro-Tem
Deputy Clerk to the Boar EXCUSED
Da E Long
AP D A M: �, 4
Robert D. Masden
ounty A rney EXCUSED
Glenn Vaad
Date of signature: O/ebe-
2005-1063
CM0016
P( : S AC; r Clow) o6 oaf o 7 O�
, .
COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT
THIS AGREEMENT is entered into by and between Wireless Advanced
Communications, herein referred to as Lessee, and the Board of County Commissioners for Weld
County, herein referred to as Lessor.
BACKGROUND INFORMATION
A. Lessor is the current owner of certain communications towers and buildings located on
certain real property with legal descriptions as set forth on Exhibit A, attached to and
incorporated herein. There are three different sites, which for purposes of this
Agreement, shall be referred to as "the 35th Avenue site;""the LaSalle site;" and "the
Centennial site." Any reference in this Agreement to all of the sites together shall be to
"the three sites."
B. Lessee desires to lease space on and in proximity to the towers on the three sites, and
Lessor desires to lease said described space to Lessee, on terms and conditions as set forth
in this Agreement.
C. The parties desire to reduce the terms of their agreement to writing.
IN CONSIDERATION of the covenants herein contained, Lessor and Lessee agree as follows:
AGREEMENT
1. Recitals. The above recitals are incorporated herein by reference, as though fully set
forth herein.
2. Lease of Tower Facilities and Sites. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor, Tower space and equipment space as hereinafter set forth. During the
term of this Agreement, Lessor hereby grants permission to Lessee to instal], maintain,
and operate on the Towers, communications equipment as set forth on Exhibit B
concerning each of the three sites, attached hereto and incorporated herein by reference.
3. Rental. Lessee shall pay to Lessor as rent during the term of this Lease Agreement, one
hundred ($100) dollars per month for each of the three sites, commencing March 1, 2005,
with the lease payment payable on the first day of each month thereafter. If the term of
this Lease Agreement is automatically renewed, pursuant to the provisions set forth in
paragraph 15 of this Agreement, in addition to the lease payment of one hundred ($100)
dollars per month for each of the three sites, Lessee shall also pay one dollar ($1)per
month per site for each subscriber on a site. Any payment of rent for a portion of a month
shall be prorated. Rental payments shall be abated for any specific site for any period
during which the Tower on that specific site is not available to Lessee for reasons not
1
2005-1063
under Lessor's direct control, as more particularly set forth herein.
4. Access. Lessor shall provide Lessee with access to the towers and the three sites at all
times in order to make any necessary repairs or maintenance on Lessee's equipment.
Lessee shall secure all access gates and building locks when entering or leaving any of the
three sites. Lessee agrees to permit only authorized employees of Lessee or persons
under Lessee's direct supervision to enter any of the three sites.
5. Utilities and Taxes. Lessee may access and use the utilities that are currently available
on each of the three sites. Lessor will pay for all currently available utilities used by
Lessee at each of the three sites. If Lessee should require additional utilities, Lessee shall
be responsible for obtaining and paying for such additional utility services. Lessee may,
at its sole cost, elect to install and maintain telephone service to its facilities.
Lessor shall be responsible for any taxes on the towers located on the three sites, with the
exception that Lessee shall be responsible for Lessee's own personal property taxes, if
any, for its own equipment, fixtures, leasehold improvement, and other personal property
installed or used by Lessee at any of the three sites. Lessor agrees to give timely prior
notification of any taxes for which Lessor believes Lessee may be responsible, so that
Lessee will have the opportunity to appear before the taxing authority and contest said
assessment, if Lessee so chooses.
6. Installation. Lessee's communications equipment shall be installed at its sole expense in
a workmanlike 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 or at any of the three sites.
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. All equipment installed by Lessee on Lessor's towers shall be firmly
anchored to the relevant tower structure. Electrical conduits and cables shall be attached
to the relevant 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.
7. Interference or Damage to Lessor's System. Prior to installation of any of Lessee's
equipment on a tower located on any of the three sites, Wireless Advanced
Communications shall conduct, at its cost, a modulation study or other appropriate
studies to determine if any conflicts exist with equipment currently installed or being
used, or both, on the towers and the three sites. If, for any reason except defects in
Lessor's system not caused by Lessee, Lessee's installation and/or operation of its
equipment or the equipment itself should interfere or cause interference with the
operation of Lessee's previously installed communications system located at any of the
relevant towers or any of the three sites, then Lessee shall immediately cease operating its
2
equipment until such interference is eliminated to Lessor's satisfaction. Lessee shall be
responsible for the cost of any special engineering required in order for the Lessee to
eliminate any such interference by Lessee's equipment. Any user of the relevant towers
or any of the three sites that, pursuant to agreement with Lessor, desires to install
equipment on the relevant towers or any of the three sites, subsequent to the installation
of equipment and use by Lessee, shall not be permitted to interfere with any existing
equipment or use on the relevant tower at any of the three sites.
Lessee shall be liable for any damages or problems incurred or sustained by Lessor to any
of its relevant towers or any of the three sites due to acts of Lessee, its agents, contractors,
or representatives, as such acts relate to the installation, operation, maintenance, repair,
replacement or other use of Lessee's equipment at Lessor's towers or any of the three
sites.
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 towers. Lessee
shall be solely responsible for the performance of any routine, extraordinary, or
emergency repairs or maintenance on Lessor's towers or any of them that are
caused by or result from Lessee's use of Lessor's towers.
b. Lessor shall be responsible for compliance with all regulations requiring painting
and/or lighting of Lessor's towers, 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 towers or any of the three sites. 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 applicable requirements of
the Federal Communications Commission and/or all other public authorities with
jurisdiction over Lessee. Lessee shall locate and maintain Lessee's property in the
area on each of the three sites that is designated by Lessor for Lessee's use.
d. Lessor shall have the right to make any reasonable changes, alterations or
improvements to the three sites or the towers, or any part thereof, so long as such
reasonable change, alterations or improvements do not interfere with Lessee's
reasonable use of the towers or the three sites 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 30 days prior to the anticipated possible temporary disruption.
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 any of the relevant three sites and specifically leased to Lessee hereunder.
3
10. Assignment. 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, with the condition that
the assignment must be for the entire Agreement, and the assignee agrees to be bound by
all of the terms and conditions of this Agreement. Lessee shall give written notice to
Lessor within 30 days of the assignment of this Agreement. Lessee will not assign or
transfer this Agreement to any other entity not above named without the prior written
consent of Lessor, which consent will 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 will not be unreasonably withheld.
11. Indemnity and Waiver. 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 towers or the three sites, or any of them or any
part of them. 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 obligations hereunder.
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 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, falling 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 towers, the buildings located under
the towers, the three sites, or any of them, or from construction, repair or alteration of the
towers, the buildings under the towers, the three sites, or any of them, or from any cause
beyond Lessor's reasonable control.
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 use of the towers or any of them, or use of the three
sites, or any of them by Lessor. Lessor shall use its best efforts to resolve interference
conflicts as soon as feasible to the end of restoring full service.
12. Insurance. Lessee, and all of Lessee's contractors or subcontractors, prior to the
installation of any equipment, shall secure and maintain throughout the term of this lease,
4
general comprehensive liability insurance for all claims that may be applicable to Lessee.
Lessee shall also carry such insurance as will protect it from all claims under any
Worker's Compensation laws in effect that may be applicable to Lessee. All insurance
required hereunder shall remain in force for the entire term of this Lease Agreement.
13. Waste, Nuisance, Hazardous Substance, or Unlawful Activity.
Lessee shall not create any waste or nuisance on or around the towers or any of the three
sites, and shall not use any of the towers or any of the three sites for any unlawful
purpose.
Lessor represents that it has no knowledge of any substance, chemical or waste,
(collectively, "substance") on any of the towers or any of the three sites that is identified
as hazardous, toxic or dangerous in any applicable federal, state or local law or
regulation. Lessee will not introduce or use any such substance on any of the towers or
any of the three sites in violation of any applicable law.
14. Government Approval. Lessee shall be responsible for obtaining any applicable permits
or licenses required by government agencies, as such pertain to the installation, operation,
maintenance, repair, replacement, or ownership of Lessee's equipment located at any of
the towers or any of the three sites.
If, after execution of this Lease Agreement, Lessee is unable to continue to occupy one or
more of Lessor's towers or one or more of Lessor's three sites due to action of any
government agency, or for other reasons, including damage to or destruction of one or
more of the towers or equipment buildings located on one or more of the three sites that
Lessee claims to be unable to continue to occupy, this Lease Agreement may be canceled
without obligation on the part of either party.
15. Term of Lease. This Lease shall be effective for one year, commencing March 1, 2005,
and shall be automatically renewable on an annual basis, unless sooner terminated by
either party pursuant to the provisions hereinafter set forth.
Lessor may terminate this Lease as it applies to one tower and corresponding site, or as it
applies to more than one or all towers and corresponding sites that are the subject of this
Lease Agreement, by giving Lessee 180 days written notice of its intention to terminate
all or a portion of this Lease. Lessee may also terminate this Lease as it applies to one
tower and corresponding site, or as it applies to more than one or all towers and
corresponding sites, at any time by providing Lessor with notice of its intent to terminate
all or a portion of the Lease at least 90 days in advance of the termination date,
accompanied by a termination payment equal to the amount of 90 days or three (3)
months' rent for the tower(s) and corresponding site(s) to which the notice of intent to
terminate applies. Upon termination, Lessee shall remove its equipment and material
installed on each of the applicable towers and at each of the applicable three sites within
5
•
30 days after termination of this Lease, and shall leave each applicable tower and each of
the applicable three sites in substantially the same condition as they existed prior to the
date when Lessee installed its communications equipment. Lessee shall continue to pay
rent as set forth in this Lease Agreement for each tower and corresponding site until all of
its equipment has been removed from each tower and the corresponding site.
16. 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.
17. Default. 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 15 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 30 days notice to Lessee, cancel and
terminate this Agreement and, upon the expiration of the 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 30 days after termination to remove its
antennae and other communication equipment, after which title to such antennae and
other communication equipment shall be forfeited by Lessee, and the parties agree that
title shall then vest in Lessor unless Lessor specifically states otherwise in writing.
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.
18. 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 will be
used in all instances, except for emergency situations when immediate notification to the
parties is required.
6
Any demand or notice to either party may be given to the other party by addressing the
written notice to:
LESSOR: Clerk to the Board of County
Commissioners for Weld County
P.O. Box 758
Greeley, CO 80632
LESSEE: Wireless Advanced Communications
3901 West Service Road
Evans, CO 80620
Fax: 970-330-3632
19. Entire Agreement- Modifications. 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.
20. 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.
21. 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.
22. No Waiver of Immunities. Notwithstanding any provision to the contrary, nothing
contained in this Agreement shall be construed to be a waiver of any rights to which
either party is entitled to under the Governmental Immunity Act for the State of Colorado
or any other applicable law.
23. No Third Party Enforcement. It is expressly understood and agreed that enforcement of
the terms and conditions of this Agreement, and all rights of action relating 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.
7
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
FOR WELD COUNTY,
STATE OF COLORADO
ATTEST: ,thaki
Chair William H. Jerke Clerk to the Board: ,�` , �. Zsa
MAR 2 8 2005 /
y(7 / O �' $<. / 1861 ' .
Date 67 -
By: Deputy
Lessee:
WIRELESS ADVANCED COMMUNICATIONS:
By: •
3/B'/o
Date
8
Exhibit A
SITE IDENTIFICATION:
Site 1: the 35th Avenue Site
Tower: 35th Avenue Tower
Legal Description of Site: 3401 35th Avenue Greeley, Colorado
Geographic Coordinates: 40-23-10 104-44-11
Tower Height: 110 Feet
Site 2: the LaSalle Site
Tower:LaSalle Tower
Legal Description of Site: 18940 WCR 3 Platteville, Colorado
Geographic Coordinates: 40-15-40 104-42-20
Tower Height:350 feet
Site 3: the Centennial Site
Tower:Centennial Tower
Legal Description of Site: 915 10th Street Greeley, Colorado
Geographic Coordinates: 40-25-22 104-41-35
Tower Height: 120 feet
9
Exhibit B
EQUIPMENT TO BE INSTALLED:
Site 1: 35th Avenue Tower
Feedline: CAT 5E
Radio: Motorola Canopy
Output power: 1 Watt
Transmit Frequency: 5740 MHz-5840 MHz
Receive Frequency: 5740 MHz-5840 MHz
(Substantially equivalent items may be substituted for the antenna, feedline, and radio
upon notification to Lessor.)
Equipment shelter as required for radio equipment to be located as follows:
Located in existing equipment room.
Communications Equipment to be installed, maintained, and operated on the tower at or
near the 100 foot level.
Site 2: LaSalle Tower
Feedline: CAT 5E
Radio: Motorola Canopy
Output power: 1 Watt
Transmit Frequency: 5740 MHz- 5840 MHz
Receive Frequency: 5740 MHz-5840 MHz
(Substantially equivalent items may be substituted for the antenna, feedline, and radio
upon notification to Lessor.)
Equipment shelter as required for radio equipment to be located as follows:
Located in existing equipment room.
Communications Equipment to be installed, maintained, and operated on the tower at or
near the 300 foot level.
10
Site 3: Centennial
Feedline: CAT 5E
Radio: Motorola Canopy
Output power: 1 Watt
Transmit Frequency: 5740 MHz- 5840 MHz
Receive Frequency: 5740 MHz- 5840 MHz
Equipment shelter as required for radio equipment to be located as follows:
Located in existing equipment room.
Communications Equipment to be installed, maintained, and operated on the tower at or
near the 100 foot level.
11
Hello