HomeMy WebLinkAboutBOCC Packet 06092010 Jabwireless/Skybeam
AGENDA ITEM SUMMARY
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ISSUE STATEMENT
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AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIOENRS OF PITKIN
COUNTY, COLORADO APPROVING A LEASE AGREEMENT WITH JAB WIRELESS,
INC., DBA SKYBEAM A COLORADO CORPORATION
1. Pitkin County is the owner of communications towersand shelter on Crown
Mountain, Williams Peak and Elephant Mountain in Pitkin County.
2. Jab Wireless, Inc., dba Skybeam, 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 operationof equipment to provide Broadband Internet
and Digital Phone Service.
3. The Pitkin County Board of County Commissioners desires to approve a lease
agreement under the general terms and conditions in the lease agreement.
NOW THEREFORE, BE IT ORDAINED, that the Board of County Commissioners of
Pitkin County, Coloradohereby approves alease agreement withJAB Wireless, Inc.,
dba Skybeam 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 PUBLISHED IN THE ASPEN TIMES WEEKLY ON JUNE 13,
2010.
RD
APPROVED UPON SECOND READING AND PUBLIC HEARING ON THE 23DAY OF
JUNE, 2010.
PUBLISHED AFTERADOPTION 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 AS TO FORM:
___________________________
John Ely, County Attorney
MANAGER APPROVAL:
___________________________
Hilary Fletcher, County Manager
RECOMMENDED FOR APPROVAL:
____________________________
Dan Chicione
Communication Site Manager
LEASE DRAFT
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 JAB Wireless, Inc., dba Skybeam, a Colorado corporation, whose
address is 320 Gateway Drive, Suite A, Berthoud, Colorado 80513 (“Lessee”).
RECITALS
A. Lessoris the owner ofcommunications towers and shelters at the following
three locations within Pitkin County,Colorado:Crown Mountain,Williams Peak
and Elephant Mountain.
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 used by Lesseeto
provide Broadband Internet and Digital Phone Service (collectively the “Leased
Exhibit A
Premises”). The Leased Premises are more particularly described in of
this 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 purpose of enabling Lessee to
service its antennas (collectively the “Equipment”).Lessee, upon the
consent of Lessormay install its own racksfor its equipmentwithin the
building.
A). If Lessor wishes to terminatebroadcast on Elephant Mtthis lease will
automatic terminate and a new lease will be required for the other sites.
2.Term. This Leaseshall commence as of the Effective Date and shall
terminate Five (5) 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 four (4) additional periods of Five (5)
years each, if Lessee exercises such option Lessee’s delivery of written notice of
such exercise to Lessorat least 180 days prior to (and not more than 360 days)
prior to) the end 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 ofOne Thousand Four Hundred Fifty Dollars
($1450.00)per month(the “Base Rent”)(as adjusted under Paragraph 3.2)during
the term of this Lease;provided, however, that the Rentshall automatically
increaseby5% annually. Thisfee will pay for all electricity used per month. No
change in the initialRent (or any increase thereof) will be effective unless agreed
st
to in writing by both 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 Rent is an independent covenant and no act or circumstance
whatsoever (whether constituting a default by Lesseeor not) will release Lessee
from 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 United States Forrest Service, BLM, The Colorado
State Land Board Commission orany 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-hours written 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.
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DC_DOCS:692453.1
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
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 to any 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 Premisesat Elephant
Mt. and Crown Mt.twenty-four (24)hours per day, seven (7) days per week.
Lesseeshall use reasonableefforts to provide Lessorwith 24-hour advance notice
prior to entry upon the Leased Premises. Williams Peakwill have same access
rights except for restricted dates put forth by the StateDivision of Wildlifewhere
st
access will be limitedonly to emergency repair from October 15th to June 1.
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. Lesseemay, from time to time, use a helicopter under
lease to Lessor to gain access to Elephant Mt. (or another site).
If Lessee plans a helicopter trip to one of the sites he will notify the Translator
department for a ride-a-long if room is available and Lessor will do the same.
Expenses will be shared appropriately. Should any of Lessee’s agents, employees
or contractors accompany Lessor, each such individual will be required to sign a
release or other waiver of liability in a form acceptable to Lessor. Should Lessee
have to obtainthe consent of any third party not affiliated with Lessor, in order to
gain access to theLeasedPremises, Lessee shall obtain such consent at its own
cost and expense.
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:
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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 acceptableto
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 not less than
two million dollars ($2,000,000)aggregateper location and not less 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-owned and 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:
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DC_DOCS:692453.1
9.1. Failureto pay any Base Rentor other sums payable to Lessor hereunder
whensuch 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.
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 adefault 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.
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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
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
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DC_DOCS:692453.1
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 such party 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 receipt requested), 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.
13. Survival. The indemnification containedin Paragraph7.1 shall survivethe
expiration or earliertermination of this Lease.
[This space intentionally left blank. Signature page follows]
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DC_DOCS:692453.1
[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:
JAB WIRELESS, INC., DBA
SKYBEAM
__________________________
Title:
Exhibit A
.LEASED PREMISES
Williams Peak communication site is located at:
Lat/Long: 39-18-37.3N 106-56-55.0W
Crown Mt communication site is located at:
Lat/Long: 39-21-09.9n 107-05-35.1W
Elephant Mt communication site is located at:
Lat/Long: 39-14-19.9N 107-13-03.9W
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