HomeMy WebLinkAboutBOCC Packet 06092010 Fones West
AGENDA ITEM SUMMARY
th
REGULAR MEETING DATE:
June 92010
AGENDA ITEM TITLE
:
An Ordinance of the Board of County Commissioners of Pitkin County,
Colorado approving a lease agreement with Fones West a Colorado Corporation
STAFF RESPONSIBLE:
Dan Chicoine, Communication Site Manager
ISSUE STATEMENT:
Staff seeks approval of Lease Agreement with FonesWest Digital
Systems of Denver for tower and building space on Crown Mountain.
BACKGROUND
: Fones West Digital Systems is a communication system company that provides
pagers and 2-way radiosand workswith major cell companies to help them find tower space to
provide back haul (sending and receiving) service. In this case, Fones West isworking with Sprint to
provide this back haulservice. FonesWestwantsto rent space on the tower for two, 2-foot antennas
and asmall space on a rack (4-6”deep)in thebuilding. They will share the Translator’s space,
leaving 2 remaining units for rent. Fones West owns a few of their own sitesand leases many others
throughout Colorado.
Many sites charge $200-$250 per month rentfor the type of equipment (point-to-point microwave)
that Foneswould like to install at Crown Mountain. However, because this site is so desirable, the
County will be able to charge $510 per month for thespace. In addition to thisrent,they also will
pay the Countyfor the additional fee that the County must pay BLM for Fones Westuse of this site
as a for profit company which is $175.41 per month.Giventhe amount ofspace that willbe
required, Staff believes these fees arevery reasonable in today’s rental market.
This rental will providerevenuefor the County with little or no maintenance required. Fones’trips
to Crown Mountainwill be limited to once per year or for emergency situations. Jon Banks,
contractedelectrical engineer,has worked with this company before, and Fones has agreedtouse
him to provideanyrepair ormaintenance necessary.
LINK TO STRATEGIC PLAN: Organizational Development
Review and revise financial processes to encourage innovation and creativity while ensuring
good financial stewardship.
KEY DISCUSSION ITEMS:Does the board want to approve the lease amount under the
current economics conditions and the ever changing atmosphere of communication?
Fones West works with other carriers such as Verizon, Sprint, T-Mobile, ATT, Cricket, etc. and
they are no longer constructing mountain-top cellularsites, opting instead to constructsuch sites
on the top of buildings and short (40to 60 foot) monopole towers. Such towersonly provide
service within a radius of a mile or two and then hand that traffic off to anothercell Site.This is
due to the new 3G and 4G technology being implemented and theincrease in data (texting and
photo) traffic.
BUDGETARY IMPACT:
This will add $6,120 per year in Revenue to the translator budget.
RECOMMENDED BOCC ACTION:
Approval offirst reading of an OrdinanceforCommunication Site Lease Agreementand set for
.
second reading and public hearing on June 23, 2010
ATTACHMENTS
: Lease Agreement
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERSOF PITKIN
COUNTY, COLORADO APPROVING A LEASE AGREEMENT WITH PHONES WEST
DIGITAL SYSTEMS A COLORADO CORPORATION
1. Pitkin County is the owner of communications towersand shelter on Crown Mountain
inPitkin County.
2. Fones West Digital Systems, a Colorado corporation desires to lease, from Pitkin
County, antenna space on county owned towers and space in shelters adjacent thereto
for the installation and operation of equipment for a microwave repeater.
3. The Pitkin County Board of County Commissioners desires to approve a lease under
the general terms and conditions in the lease agreement.
NOW THEREFORE, BE IT ORDAINED, that the Board of County Commissioners of
Pitkin County, Colorado herebyapproves alease agreement with Phones West Digital
systems under the general terms and conditions in the lease agreement in a form
approved by the County Attorney
TH
INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING ON THE 9DAY OF JUNE,
2010
NOTICE OF PUBLIC HEARING PUBLISHEDIN THE ASPEN TIMES WEEKLY ON JUNE 13,
2010.
RD
APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 23DAY OF
JUNE, 2010.
PUBLISHED AFTER ADOPTION IN THE ASPEN TIMES WEEKLY ON THE _________DAY
OF ________________, 2010.
ATTEST:BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By _________________________By: _________________________________
Jeanette Jones George Newman, Chair
Deputy County Clerk
Date:___________
APPROVED ASTO FORM:
___________________________
John Ely, County Attorney
MANAGER APPROVAL:
___________________________
Hilary Fletcher, County Manager
RECOMMENDED FOR APPROVAL:
____________________________
Dan Chicione,
Communication Site Manager
LEASEDRAFT
This Lease (the “Lease”) made andentered into this ___ day of _________,
2010(the “Effective Date,”),by the PitkinCountyBoard of County
Commissionerswhose address is 530 EastMain, Aspen,Colorado 81611
(“Lessor”), and Fones WestDigital Systems, a Colorado corporation, whose
address is300 S Jackson,Suite 125, Denver Co 80209
(“Lessee”).
RECITALS
A.Lessoris the owner ofacommunications towers and shelter on Crown Mt.
in Pitkin County Co.
B.Lessor desires to lease toLessee and Lessee desires to lease from Lessor
antenna space on Lessor’s towers and space in shelters adjacent thereto for the
installation and operation of Lessee’s associated equipment.Lesseewill provide
towerspace for a microwave repeateronlywhich consists of 2,two ft parabolic
antennasand 4 to 6 inches of rack space associatedwith this repeater. Any
additional equipment will require a new negotiated lease.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1.Leased Premises.In consideration of Lessee’s payment of Rent as provided
in this Lease and in further consideration of Lessee’s representations and
warranties, Lessor hereby leases to Lessee antenna space on Lessor’s towers and
space within Lessor’s equipment shelters for Lessee’s related transmitting and
communications equipment, as well as the nonexclusive right to have transmission
lines for the sole purposeof enabling Lessee to service its antennas (collectively
the “Equipment”).
2.Term. This Leaseshall commence as of the Effective Date and shall
terminate One (1) years from the date thereof, subject to extensions as provided
herein. Provided that Lesseeis not otherwise in default hereunder, Lessee shall
have the option to extend the initial term for one (1) additional year,if Lessee
exercises such option Lessee’s delivery of written notice of such exercise to Lessor
at least 180 days priortotheend of the initial term or the previous extension term
as applicable.
3.Rent.
3.1. Base Rent.In consideration ofthis Leasegranted toLesseehereunder,
Lessee shall pay to Lessor the sum ofFiveHundredTenDollarsand No Cents
($510.00)per month(the “Base Rent”) (as adjusted under Paragraph 3.2)during
the term of this Lease;provided,however, that the Rentshall automatically
increaseby5% for the next year (1) yearof the initial term and any extensions
there after.$ 10 of this rent will pay for electricity usage. No change in the initial
Rent (or any increase thereof) will be effective unless agreed to in writing by both
st
Lessee and Lessor.Rentshall be payable on the first (1) business day of every
month commencing on the Effective Date. The obligation of Lessee to pay Rentis
an independent covenant and no act or circumstance whatsoever (whether
constituting a default by Lesseeor not) will release Lesseefrom the obligation to
pay its Renttimely or give rise to any counterclaim or setoff.
3.2.Fee. In addition to Rent Lessee shall reimburse Lessor any fee or other
payment made by Lessor to the BLMorany other duly authorized governmental
body in order to allow the Leased Premises to be occupied by a for-profit entity.
4.Installation Use and Modification of and to the Equipment.Lesseeshall
install, use ,operate and maintain the Equipment during the Term hereof in
compliance with all applicable laws, rules, orders and regulations imposed by any
local state or federal authority and consistent with good engineering practices.
Prior to (i) the installation of the Equipment, or (ii) any modifications or changes
(other than replacements of identical items at the same location) to the Equipment,
Lesseeshall provide no fewer than 48-hourswritten notice to Lessorand shall
submit all plans, designs and specifications to Lessorfortheirwritten approval.
All of the Equipment shall be clearly markedto show Lessee’s name, address,
telephone number, and frequency, and shall identify the individual associated with
Lesseetowhom communications may be directed.Lesseeshall remove its
Equipment within sixty (60)days after expiration of this Lease.
4.1.Regulatory Compliance.Lesseeshall comply with all rules, regulations,
policies and orders of the Federal Communications Commission and any other
regulatorybody.
5.Prevention of Objectionable Interference.
5.1. Shouldthe operationsof any other user ofthe Leased Premises cause
any objectionable interference to Lessee’s Equipment, Lessee and Lessorshall use
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DC_DOCS:692453.1
reasonableefforts to eliminate such condition. In the event that the condition is not
eliminated Lessorshall have the right to terminate this Lease.
5.2. Should Lessee’s operations cause objectionable interference toany other
user of the Premises, Lessee shall promptly, and at its own cost and expense, take
appropriate measures to eliminate such condition or, if those efforts are
unsuccessful, Lessorshall have the right to terminate this Lease.
6.Access.Lessorgrants to Lesseeaccess to the Leased PremisesatCrown
Mountain twenty-four (24)hours per day, seven (7) days per weekfor the purpose
of emergency repaironly.Once construction is complete Lessee will limit his trips
to the site to once per year or foremergency repairs only.Lessee shall use
reasonable efforts to provide Lessor with 24-hour advance notice prior to entry
upon the Leased Premises.Lessee will comply with all reasonable security and
safety precautions and measures established by Lessorand will not tamper in any
way with the Equipment or any other property of Lessor.Lesseewill ensure that
the Leased Premisesand surrounding areasare kept free from trash, debris and
waste and shall comply with all Environmental Laws. The Leased Premises are
Exhibit A
more particularly described in of this Lease.
7. Indemnification.
7.1. Lessee hereby indemnifies, holds harmless and agrees to defend Lessor
from and against all claims, damages, costs and expenses (including reasonable
attorney’s fees), liabilities and judgments related to:
a) A claim or liability arising out of work done by Lesseeor its agents,
employees or contractors;
b) Any use, possession, occupation or operation of the Premises by Lessee;
and
c) Any negligent or willful misconduct of Lessee, or its agents, employees or
contractors.
8.InsuranceRequirements. Onor before the Effective Date of this Lease,
Lesseeshall deliver to Lessor the following policies, reasonably acceptable to
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Lessor, whichshall be with insurance carriers licensed to do business in the State
of Coloradoand rated no lower than A-X in the most current edition of A.M.
Best’s Property-Casualty Key Rating Guide,and naming Lessor as an “additional
insured”:
8.1. Commercial General Liabilityfor bodily injury and property damage,
which includes products/completed operations and all standard broad form
comprehensive general liability extensions without limitation. Contractual liability,
if not written on a blanket basis, must be endorsed to cover the indemnities
specified herein. The policy shall be written on an “occurrence” basis. It shall
provide for bodily injury and property damage coverage with limits notless than
two million dollars($2,000,000)aggregate per location and notless than one
million dollars ($1,000,000)per occurrence.
8.2.AutomobileLiability Insurance. Automobile Liability Insurance at no
less thanone million dollars($1,000,000)per occurrence combined single limit for
injury or property damage. All leased, non-ownedand hired automobiles used in
connection with Licensee’s activities on the Premises shall be covered.
8.3.Workers’Compensation and Employer’s Liability Insurance. Workers’
Compensation and Employer’s Liability Insurance affording coverage under the
workers’compensation law of the State of Colorado, with Employer’s Liability
Insurance having minimum limits of one million dollars ($1,000,000)for injury by
accident andone million dollars ($1,000,000)for injury by disease. Such coverage
shall provide a standard waiver of subrogation endorsement in favor of Licensor.
9.Default. The following events will be events of default by Lesssee:
9.1. Failureto pay any Base Rentor other sums payable to Lessor hereunder
when such sums become dueand such failure continues for five (5)business days
after written notice of failure is given by Lessor to Lessee.
9.2.Abandonment of Equipment for a period of more thanthirty(30)
days.
9.3.Failure to comply with any term of this Agreement, and such failure
continues for 30 days after written notice of the failure is given by Lessor to
Lessee.
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9.4.The filling by or against Lesseeas bankruptor insolvent in
proceedings filed under the federal bankruptcy laws or any similar law.
9.5.The Insolvency of Lessee or the making of a transfer in fraud of
creditors or an assignment for the benefit of creditors.
9.6.The appointment of a receiver or trustee for any of Lessee’s
Equipment or otherassets.
9.7.The issuance of a writ or warrant of attachment, execution, distraint,
levy, possession, or any similar process by any court against all or a part of
Lessee’s property.
10.Lessor’s Remedies.In the event of a default by Lessee, Lessormay, in
addition to other rights available to Lessorin law or equity, at its option, terminate
this Lease, declare all amounts payable hereunder by Lesseeto be immediately due
and payable and/or remove (at Lessee’s cost and expense and without incurring
any liability to Lessor) all of the Equipment as well as Lessee’s improvements or
personal property located on the Leased Premises. No failure by Lessor to insist
upon the strict performance of any covenant, agreement, term or condition of this
Leaseor to exercise any right or remedy upon a default by Lessee hereunder, and
no acceptance of full or partial payment of the Base Rent or other sums payable by
Lesseeduring the continuance of any such default, shall constitute a waiver of any
such default.
11.Miscellaneous Provisions.
11.1. Applicable Law. This Lease shall be construed and governed in
accordance with the laws of the State of Colorado, without regard to the conflict of
laws provisions thereof, and venue shall be set in Pitkin County, Colorado.
11.2.EntireAgreement. This Leaseand other documents referred to
herein or delivered pursuant hereto, which form a part hereof, contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, warranties, covenants or undertakings other
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than expressly set forth herein. No modification of this Leaseshall be effective
unless contained in writing signed by the authorized representative of both parties.
11.3. Assignment.This Lease shall insure to the benefit and be
binding upon Lessor, its successorsand assigns, and shall be binding upon Lessee,
its successors and assigns, and shall inure to the benefit of Lesseeand only such
assigns of Lessee are permitted herein. Except as expressly provided otherwise,
nothing in this Lease shall be construed so as to confer upon any person rights of a
third party beneficiary. ThisLeasemay not be assignedexcept upon Lessor’s
consent, which consent shall not be unreasonably withheld;provided, however,
that Lessee may assign this Leaseto any wholly owned affiliate or successor of
Lesseewithout Lessor’s prior consent.
11.4. Counterparts: Faxed Signatures. This Leasemay be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Any faxed signature
page hereof shall be considered an original signature page and be effective for all
purposes to evidence such Party’s execution thereof.
11.5. LesseeEntity. Lesseehereby covenants and warrants that:itis a
duly constituted corporation qualified to do business in Colorado; all Lessee’s
corporate franchise or other entity-related taxes have been paid to date; all future
forms, reports, fees and other documents necessary for Lessee to comply with
applicable laws will be filed by Lesseewhen due; and such person is duly
authorized by the governing body of such corporation to deliver this Leaseon
behalf of theLessee corporation.
11.6. Representations and Warranties. Lessor and Lesseeeach represent and
warrant to the other that it is legally qualified, empowered and able to enter into
this Lease, and that the execution, delivery and performance hereof shall not
constitute a breach or violation of any agreement, contract or other obligation of
any kind to which suchparty is subject toor by which it is bound.
12.Notices. All notices, requests or claims, demands and other communications
hereunder shall be in writing and deemed to have been delivered if mailed
(certified mail, postage prepaid, return receiptrequested), sent by fax, or sent by
overnight delivery service, or to the addresses first above written or to any
alternate address specified in writing by a party.
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13.Survival. The indemnification containedin Paragraph 7.1 shall survivethe
expirationor earliertermination of this Lease.
[This space intentionally left blank. Signature page follows]
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[Signature page]
IN WITNESS WHEREOF, this Leasehas been duly executed and delivered by the
Lessorto the Lesseeon the date first above written:
LESSOR:
BOARD of COUNTY
COMMISSIONERS
_________________________
Chairman George Newman
LESSEE:
FONES WEST DIGITAL SYSTEMS
__________________________
Title:
Exhibit A
. LEASED PREMISES
Crown Mountain is located at:
Lat/Long: 39-21-09.9N 107-05-35.1W
2500 Stone Rd.
Basalt Co. 81621
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