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HomeMy WebLinkAbout20173839.tiffRESOLUTION RE: APPROVE LEASE AGREEMENT FOR COMMUNICATIONS TOWER AND SITE AND AUTHORIZE CHAIR TO SIGN - T -MOBILE WEST, 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 Lease Agreement for a Communications Tower and Site at 7625 County Road 31, Fort Lupton, Colorado 80621, between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Safety Communications, and T -Mobile West, LLC, commencing November 8, 2017, and ending November 8, 2022, 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 Lease Agreement for Communications Tower and Site at 7625 County Road, Fort Lupton, Colorado 80621, between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Public Safety Communications, and T -Mobile West, 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. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 8th day of November, A.D., 2017. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLQRADO ATTEST: Weld County Clerk to the Board BY. uty lerk to the Board APPROVAS TOFF County Attorney Date of signature: Cal5/(1 5 / l 7 Steve Moreno, Pro-Tem r Sean P. Conway Mike Freeman ILLS rbara Kirkmeyer Gc c,mcmc.vJ oil (I 2017-3839 CM0025 BOCC STAFF USE Date Set: Time: BOARD OF COUNTY COMMISSIONERS WORK SESSION COVER LETTER Department/Office: Public Safety Communications Date: 10/30/2017 Person requesting work session: Mike Wallace Extension:2890 Has your commissioner coordinator/BOCC chair approved the work session? X Yes, commissioner coordinator Yes, BOCC chair Recommended length of time needed for discussion: X15 minutes 20 minutes 30 minutes other (list) 1 hour _ In addition to yourself and the board, please list who should attend: Don Warden , Brief description of the issue: (please select one) Informational only Action needed Review Revised T -Mobile Lease Agreement Options for the board: Approve Disapprove Recommendation to the board: Approve Revised Lease agreement BOARD CHAIR USE Results/Outcomes: 2017-3839 COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT This AGREEMENT (hereinafter referred to as " ease" or "Agreement") made and entered into this day of 2017, by and between the Board of Weld County Commissioners, on behalf of the Weld County Public Safety Communications Department, hereinafter referred to as the "Lessor", and T -Mobile West LLC, hereinafter referred to as the "Lessee." WHEREAS Lessor is the current owner of a certain communications tower (the "Tower") located at 7625 CR 31, Fort Lupton, Colorado (the "Site"). WHEREAS Lessee desires to lease space on the Tower and on the Site, and Lessor agrees to permit Lessee to lease space on the Tower and Site, on certain terms and conditions. WHEREAS the parties desire to reduce the terms of their agreement to writing. NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT 1 RECITALS The above recitals are incorporated by reference, as though fully set forth herein. 2 LEASE OF COMMUNICATIONS TOWER AND SITE 020/7 3r,,59 COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 2.1 Lessor hereby grants permission to Lessee to install, maintain, and operate communications equipment as set forth on Exhibit A, attached hereto, and incorporated by reference, including but not limited to, antenna equipment, equipment housings, conduits, and other related apparatus on the Tower. The equipment is to be installed between the 160 foot and 170 foot levels on the Tower. 2.2 The parties agree that Lessee may place its equipment cabinets on a raised platform or concrete pad not to exceed a 10 foot by 12 foot area at a location to be designated by Lessor. 3 RENTAL 3.1 Lessee shall pay to Lessor as rent during the first five (5) years of this Lease, Eighteen Hundred Dollars ($1800.00) per month in advance. Future rent amounts will be renegotiated after the fifth Lease year. No price is guaranteed beyond the initial five Lease years. 4 ACCESS Lessor shall provide Lessee with access to Tower and Site at all times in order to make any necessary repairs or maintenance on Lessee's equipment. Lessee shall secure all access points when entering or leaving the Site. Lessee agrees to permit only authorized employees of Lessee or persons under Lessee's direct supervision to enter the Site. Lessee will only allow "Class B" "Competent (Skilled) Climbers" as defined by ANSI/TIA-222-G or the most current revision, to climb and/or perform maintenance on the equipment mounted on the Tower. 5 ELECTRICAL POWER There are existing electrical lines at the Site, which are for the use of Lessor. Lessee shall, at its sole cost, have installed and maintain a separate electrical connection to the existing service to operate Lessee's facilities. 6 TELEPHONE SERVICE Lessee may, at its sole cost, elect to install and maintain telephone or optical fiber service to Lessee's facilities, and Lessor shall reasonably cooperate with Lessee's efforts to obtain such services. 7 INSTALLATION COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 7.1 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 Lessor's equipment or devices. 7.2 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. 7.3 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. 8 INTERFERENCE OR DAMAGE TO LESSOR'S SYSTEM 8.1 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 Lessor's or any other lessee's previously installed communications system located at the Tower, Lessee shall immediately cease operating its 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 Lessee to eliminate any such interference by Lessee's equipment. If there is a conflict between Lessee and any other subsequent user, Lessor shall require the subsequent user to resolve the conflict. 8.2 Lessee shall be liable for any damages or problems incurred or sustained by Lessor to Lessor's facilities due to acts of Lessee, its agents, contractors, or representatives, as such acts relate to the installation, operation, maintenance, repair, or replacement of Lessee's equipment at Lessor's Tower site, or otherwise. 9 TOWER AND EQUIPMENT MAINTENANCE 9.1 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. 9.2 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. COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 9.3 Lessor shall have the right to make any reasonable changes, alterations or improvements to the Site, or any part thereof, so long as such reasonable changes, alterations or improvements do not interfere with Lessee's reasonable use of the premises leased under this Agreement. If any change, alteration or improvement contemplated by Lessor will result in a disruption of service to Lessee, Lessor shall give notice to Lessee at least 30 days prior to the anticipated disruption. 9.4 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 requirements of the Federal Communications Commission and/or all other public authorities with jurisdiction over Lessee. 9.5 Lessee shall not create any waste or nuisance on the Tower or Site, or both, nor use the Tower or Site or both for any unlawful purpose. 9.6 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 Tower or Site or both by Lessor or others. Lessor shall use its best efforts to resolve interference conflicts as soon as feasible to the end of restoring full service. Neither party to this Agreement shall be liable to the other for delays in delivery or failure to deliver or otherwise to perform any obligation under this Agreement, where such failure is due to any cause beyond its reasonable control, including but not limited to Acts of God, fires, strikes, war, flood, earthquakes or Governmental actions. 10 ENVIROMENTAL MATTERS 10.1 Lessee will be solely responsible for and will defend, indemnify and hold Lessor, its agents and employees harmless from and against any and all direct claims, costs and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of the property located at Lessor's Tower Site associated with the use of Hazardous Materials. COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 10.2 To the extent allowed by applicable law, Lessor will be solely responsible for and will defend, indemnify and hold Lessee, its agents and employees harmless from and against any and all direct claims, costs and liabilities, including reasonable attorneys' fees and costs, arising out of or in connection with the removal, cleanup or restoration of the property with respect to Hazardous Materials from any and all sources other than those Hazardous Materials introduced to the property by Lessee. 10.3 "Hazardous Materials" means asbestos or any hazardous substance, waste or materials as defined in any federal, state or local environmental or safety law or regulation including, but not limited to, CERCLA. 10.4 The obligations of this Section 10 shall survive the expiration or other termination of this Agreement. 11 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. 12 ASSIGNMENT 12.1 Lessee shall not change or modify the frequency, power, or character of Lessee's communications equipment, without Lessor's prior consent, which consent will not be unreasonably withheld. 12.2 Upon Lessor's written consent, which shall not be unreasonably withheld, Lessee may assign this Lease, including its right to renew, to any person or business entity which is licensed by the Federal Communications Commission. 12.3 Lessee may assign this Lease and its other rights hereunder to any person or business entity which (i) is a parent, subsidiary or affiliate of Lessee, (ii) merges or consolidates with Lessee or its parent, or (iii) purchases or otherwise acquires a majority of Lessee's ownership interest or assets in the FCC market in which the Site is located, without Lessor's consent. Lessee shall notify Lessor within 30 days after any such assignment. 12.4 Upon notification to Lessor of any assignment, Lessee shall be relieved of all performance, liabilities and obligations under this Agreement. 13 INDEMNITY COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 13.1 Lessor shall not be liable for, and, to the extent permitted by law, 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 obligations hereunder; provided, however, that Lessee shall not be responsible for any duplicative costs or expenses, including attorneys' fees, that Lessor may incur if it participates in the defense of any such suit or claim. Notwithstanding the provisions stated herein, nothing in this Lease is intended as waiver by either party of governmental immunity rights pursuant to state or federal law. 13.2 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, general comprehensive liability insurance or be self -insured, in accordance with the Colorado Governmental Immunity Act, if applicable, for all claims that may be applicable to Lessee. Lessee shall also carry such insurance as will protect it from all claims under any Workers' 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. 13.3 Except to the extent caused by Lessor's 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 breakage, leakage, obstruction, or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures on the Site, or from construction, repair or alteration to the Site, or from any cause beyond Lessor's reasonable control. 14 Government Approval COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 14.1 Lessee shall be responsible for obtaining any 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 Lessor's Tower site, and Lessor shall, at Lessee's sole cost, reasonably cooperate with Lessee's efforts to obtain any such permits and licenses. 14.2 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 on the part of either party. 15 TERM OF LEASE 15.1 The initial term of this Lease shall be for one (1) year, commencing upon the date Lessor executes this Agreement. Thereafter, this Agreement shall automatically renew for up to four (4) additional and successive one-year periods, unless sooner terminated by either party pursuant to the provisions hereinafter set forth. The parties acknowledge that Lessee would like for this Lease to continue for several years, although Lessor does not warrant or guarantee that this Lease will continue for any term beyond what is stated. 15.2 Lessor may terminate this Lease pursuant to the provisions of paragraph 15 herein, or by giving Lessee 180 days' written notice of its intention to terminate this Lease. Should the Lessee not be able to find a suitable replacement site prior to the termination date, upon 30 day's notification from the Lessee, the Lessor shall permit the Lessee the option of placing a temporary portable mobile cellular site equipped with a temporary antenna tower, approved by the Lessor, near the Tower at a location approved by the Lessor, until a suitable replacement site is found, and in no case longer than an additional 180 days. The current monthly rent rate will remain in effect until the portable mobile cellular site is removed from the Site. Lessee shall make a good faith effort to find a replacement location. All other aspects of this Lease will continue during the extended period. COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 15.3 Lessee may terminate this Lease at any time by providing Lessor with notice of its intent to terminate at least 30 days in advance of the termination date, accompanied by a termination payment equal to two (2) months' rent. Upon termination, Lessee shall remove its equipment and material installed on Tower or at Site within 30 days after termination of this Lease, and shall leave Tower and Site in substantially the same condition as it existed prior to the date when Lessee installed its communications equipment, reasonable wear and tear excepted, If Lessee has not removed all of its equipment from the Site after the said 30 days, Lessor may, at its option, arrange for the equipment to be removed at Lessee's expense, or Lessor may, after giving 10 days' notice to Lessee, deem the antennae and/or other communications equipment to have been abandoned by Lessee, and the said antennae and/or other communications equipment shall then be deemed forfeited and shall become the property of Lessor. 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 the Agreement. This Agreement shall be interpreted pursuant to the laws of the State of Colorado. 17 DEFAULT 17.1 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. COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT 17.2 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 or trespass or forcible entry or detainer. Upon repossession by Lessor pursuant to this paragraph 17.2, this Agreement shall be considered terminated and Lessee shall have 10 days after termination to remove its antennae and other communication equipment, after which Lessor, may, at its option, arrange for the antennae and/or other communications equipment to be removed at Lessee's expense, or Lessor may, after giving 10 days' notice to Lessee, deem the antennae and/or other communication equipment forfeited, and said antennae and/or other communications equipment shall become the property of Lessor. If the defaulting party is Lessor, and the default continues after the period for cure passes, Lessee may pursue all available legal remedies herein set forth, including arbitration. 17.3 No waiver of any default or breach of any one or more of the conditions or covenants of this Agreement by either party shall he 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, 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. Any demand or notice to either party may be given to the other party by addressing the written notice to: Lessor: Weld County Public Safety Communications 1551 N17th Ave, Suite#2 Greeley, Colorado 80631 Attn: Director of Public Safety Communications COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT Lessee: T -Mobile West LLC 12920 SE 38th Street Bellevue, WA 98006-1350 Attn: Property Management — DN01501A 19 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. 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 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate originals on the dates shown below our respective signatures. COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT Lessee: T- - est LLC Print =• .me: 1 ott W. DuBuke Title: Area Dire or, Ne ork Engineering & Operations Date: 10 ?.o Lessor: Weld County Public Safety Communications By:04,0,i4,x2.1001, Name: Michael R Wallace, ENP, CMCP Title: Director of Public Safety Communications Date: N0V 0 8 2017 ATTEST: � %ok BOARD OF COUNTY COMMISSIONERS Weld Cnty Clerk to the Board WELD COUNTY, COLORADO BY: Deputy ClS rk to the B - te) Julie Cozad, Chair �/7- Jg39 COMMUNICATIONS TOWER AND SITE LEASE AGREEMENT EXHIBIT A es' EEamo Mer- KEIF-daPPDIPT rase StI Hiatt! RI i ullll t !lite {11 U i ili L__ ___1 • -Mobile. 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