HomeMy WebLinkAboutbocc.con.279.2017 - BOCC AN EMERGENCY ORDINANCE AUTHORIZING THE BOARD TO ENTER INTO A
COMMUNICATIONS USE LEASE WITH THE U.S.DEPARTMENT OF
AGRICULTURE FOREST SERVICE (USFS) FOR THE ELEPHANT MOUNTAIN
COMMUNICATIONS SITE
ORDINANCE NO. 0�‘7 -2017 CONTRACT # 4,.)9q" i1
)
RECITALS:
1. Pursuant to 30-35-301 C.R.S.,the Board of County Commissioners("BOCC")of
Home Rule Counties is authorized to make and publish ordinances for carrying into
effect or discharging the powers and duties conferred upon such counties by law and
as seems necessary.
2. Pursuant to Section 2.8.2 of the Home Rule Charter("HRC"),the Board of County
Commissioners is authorized to take official action by Emergency Ordinance for certain
matters where action is prescribed pursuant to the Colorado Revised Statues as
amended.
3. United States Department of Agriculture Forest Service(USFS)owns the property in
the County of Pitkin, State of Colorado, described as Sec. 33,T. 9 S., R. 88 W., 6th
P.M. ("Elephant Mountain").
4. The Pitkin County Translator has maintained and operated a communications site at
Elephant Mountain since 1980.
5. Pitkin County is upgrading the site to accommodate 21st Century Communications by
removing the six(6) existing guyed-wire towers and 8x12 building and installing one
(2)40'self-supporting, galvanized steel towers,a new 18x12 equipment shelter,a new
18x12 stand-alone solar grid, a 2°d armored powerline, and extending the existing
powerline 500 feet.
6. Pitkin County's existing Communications Use Lease(SOP 131)agreement with the
USFS for Elephant Mountain allows for a communications site through December
31,2034.
7. The USFS issued a new Communications Use Lease(SOP368)to Pitkin County to
integrate the site improvements at Elephant Mountain.
8. SOP368 supersedes the current Communications Use Lease(SOP.131). The new
Communications Use Lease agreement retains the same expiration date and will
terminate 12/31/2014.
9. The BOCC finds that adoption of this ordinance is necessary for the immediate
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preservation of the public health, safety and welfare of the citizens of Pitkin County
and therefore declares this ordinance and legislation to be effective immediately
pursuant to HRC Section 2.8.2.
NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin
County,Colorado that it hereby adopts an Ordinance authorizing the County Manager and
County Attorney to execute the instruments necessary to commit appropriated funding in
order to add to the Pitkin County employee deed restricted housing program inventory and
authorizes the chair or the chair's designee to sign the Ordinance and upon the satisfaction of
the County Attorney as to form, execute any other associated documents necessary to
complete this matter.
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INTRODUCED AND FIRST READ ON THE /-3c�P DAY OF11,,,74 ,2017 AND
SE O SECOND READING AND PUBLIC HEARING ON THE /3 DAY OF
G' !"�. `h4r 2017.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OFT E
RE OLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE 4t DAY OF
,2017.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED
ON THE OFFICIA PITKIN COUNTY WEBSITE(www.pitkincounty.com)ON THE
3(44 DAY OF v f 2017.
AD T AFTER FINAL READING AND PUBLIC HEARING ON THE 13 DAY
OF -e4 t/ui- 2017.
PUBLISHED BY TITLE AND SHORT SUM ARY,AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE a Imo`'DAY OF ,2017.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFIC L ITK1N COUNTY
WEBSITE(www.pitkincounty.com)ON THE 914 DAY OF 4(.4. r
ATT • BOARD OF COUNTY COMMISSIONERS
I
By i.1/ IA7 By:/ talW9
Jean-le Jones George Ne an,Ch it
Dep County Clerk
Date: • AIM
APPROVED AS TO FORM: MANAGER APPROVAL
11/14,/f--
JohnAttorneyJon ea ck CountyManger
ty g
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Auth ID: SOP368
FS-2700-10b(V.01/2014)
Contact Name: PITKIN COUNTY OMB No. 0596-0082
Expiration Date: 12/31/2034
Use Code: 808
U.S. DEPARTMENT OF AGRICULTURE CONTRACT# ' 4!
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FOREST SERVICE
COMMUNICATIONS USE LEASE
AUTHORITY:
FEDERAL LAND POLICY AND MGMT ACT,AS AMENDED October 21, 1976
PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS of 530 E. MAIN ST., COUNTY
MANAGER'S OFFICE,ASPEN, CO 81611.
THIS LEASE, dated this 30Th day of A.U 44Lisr , 2017,by and between the
UNITED STATES OF AMERICA, acting through the Fores?Service, Department of Agriculture
(hereinafter called the "United States" or "Forest Service"), as authorized by the Act of October 21,
1976, (90 Stat. 2743; 43 U.S.C. 1761, et seq.), and PITKIN COUNTY BOARD OF COUNTY
COMMISSIONERS, its agents, successors, and assigns (hereinafter called the "Lessee").
The United States and the Lessee are jointly referred to herein as the "Parties". As used herein, the
"Authorized Officer" refers to the Forest Service official having the delegated authority to execute and
administer this lease. Generally, unless otherwise indicated, such authority may be exercised by the
Forest Supervisor or District Ranger of the White River National Forest wherein the following described
} lands are located.
The United States, for and in consideration of the terms and conditions contained herein and the
payment to the United States of a rental in advance by the Lessee, does hereby grant to the Lessee a
lease for the following described communications facility in the County of PITKIN State of
COLORADO, Sec. 33, T. 9 S., R. 88 W., 6th P.M. (hereinafter called the "property"). The Lessee accepts
this lease and possession of the property, subject to any valid existing rights, and agrees not to use the
property, or any part thereof, except as a site for only the construction, operation, maintenance, and
termination of a communications facility. Authorized facilities under this lease include:
1. installation, operation, and maintenance of one factory-built, insulated 18' x 12' building
with a stone aggregate exterior and a fixed-angle roof mounted solar grid
2. installation and maintenance of two 40' self-supporting towers made from galvanized steel
with no guyed wires
3. extend the existing powerline (.75 miles) 500 feet to the new building site
4. add a 2nd armored powerline within the existing historical right-of-way easement. The
additional line will be built to 2013 rebuild specs and existing line
5. installation of an 18' x 12' stand-alone solar grid located at the existing shelter site to be
built as commercial use demand may require
6. a generator inside the shelter
7. ten 100 pound propane tanks
The location of the property is shown generally on the map dated August 2017 which is attached and
made part hereof as Exhibit A (Elephant Mountain Communication Site).
SOP368 Pitkin County Board of County Commissioners Page 1 of 7
The dated and initialed exhibit(s), attached hereto, are incorporated into and made a part of this
instrument as fully and effectively as if they were set forth herein in their entirety.
The parties agree that this lease is made subject to the following terms and conditions.
I.TENURE,RENEWAL AND TRANSFERABILITY
A. This lease shall terminate at one minute after midnight on 12/31/2034. Termination at the end of the
lease term shall occur by operation of law and shall not require any addition notice or documentation by
the Authorized Officer. This lease is not renewable; but the Lessee has the right to request a new lease
pursuant to Paragraph "C"below.
B. The Lessee shall undertake and pursue with due diligence construction and operation that is
authorized by this lease. To the extent specified in Exhibit B(the application), operation shall begin
immediately after the new shelter and tower are in place. This lease shall terminate if operation does not
commence by that date, unless the parties agree in writing, in advance,to an extension of the
commencement date.
C. If the Lessee desires a new lease upon termination of this lease,the Lessee shall notify the Authorized
Officer accordingly,in writing. The notice must be received by the Authorized Officer at least one year
prior to the end of the lease term. The Authorized Officer will determine if the use should continue and,
if it is to continue, if a new lease should be issued to the Lessee and under what conditions.The
Authorized Officer shall require payment of any amounts owed the United States under any Forest
Service authorization before issuance of another authorization.
D. This lease is assignable with prior written approval of the Authorized Officer, except when rent has
been exempted or waived in whole or part. Renting of space does not constitute an assignment under this
clause.
II. RENTAL
A. The Lessee must pay in advance an annual rental determined by the Authorized Officer in accordance
with law,regulation,and policy. The annual rental will be adjusted by the Authorized Officer to reflect
changes in fair market value, annual adjustments using the Consumer Price Index -Urban(CPI-U),
changes in tenant occupancy, or phase-in rental, if applicable.
B. Rentals are due at the close of business on January 1 of each year for which a payment is due.
Payments in the form of a check,draft, or money order are payable to USDA, Forest Service. If the due
date for the rental or rental calculation statement falls on a non-work day,the charges shall not apply
until the close of business on the next workday. This lease terminates if rent is not received by the Forest
Service within 90 calendar days of the due date.
C. Pursuant to 31 U.S.C. 3717, et seq., interest shall be charged on any rental amount not paid within 30
days from the date the rental or rental calculation financial statement specified in this authorization
becomes due. The rate of interest assessed shall be the higher of the rate of the current value of funds to
the U.S. Treasury(i.e.,Treasury tax and loan account rate), as prescribed and published by the Secretary
of the Treasury in the Federal Register and the Treasury Fiscal Requirements Manual Bulletins annually
or quarterly or at the Prompt Payment Act rate. Interest on the pnncipal shall accrue from the date the
rental or rental calculation financial statement is due. In addition, an administrative penalty at a
SOP368 Pitkin County Board of County Commissioners Page 2 of 7
percentage rate prescribed by law or regulation will be assessed for failure to pay any portion of the debt
that is more than 90 days past due. This paragraph shall survive the termination or revocation of this
lease, regardless of cause.
D. Disputed rentals are due and payable by the due date. No appeal of rentals will be considered by the
Forest Service without full payment of the disputed amount.
III. RESPONSIBILITIES OF THE LESSEE
A. The Lessee is authorized to rent space and provide other services to customers and/or tenants and
shall charge each customer/tenant a reasonable rental without discrimination for the use and occupancy
of the facilities and services provided. The Lessee shall impose no unreasonable restrictions nor any
restriction restraining competition or trade practices. By October 15 of each year, the Lessee shall
provide the Authorized Officer a certified statement listing all tenants and customers,by category of use
in the facility on September 30th of that year.
B. All development, operation and maintenance of the authorized facility, improvements, and equipment
located on the property shall be in accordance with stipulations in the communications site management
plan approved by the Authorized Officer. If required by the Authorized Officer, all plans for
development, layout, construction, or alteration of improvements on the property, as well as revisions of
such plans,must be prepared by a licensed engineer,architect, and/or landscape architect. Such plans
must be approved in wasting by the Authorized Officer before commencement of any work. After
completion, as-built plans,maps,surveys, or other similar information will be provided to the
Authorized Officer and appended to the communications site management plan.
C. The Lessee will comply with applicable Federal, State, county, and municipal laws,regulations and
standards for public health and safety, environmental protection, siting, construction, operation, and
maintenance in exercising the rights granted by this lease. The obligations of the Lessee under this lease
are not contingent upon any duty of the Authorized Officer,or other agent of the United States,to
inspect the premises. A failure by the United States, or other governmental officials,to inspect is not a
defense to noncompliance with any of the terms or conditions of this lease. Lessee waives all defenses of
laches or estoppel against the United States. The Lessee shall at all times keep the title of the United
States to the property free and clear of all liens and encumbrances.
D. Use of communications equipment is contingent upon the possession of a valid Federal
Communication Commission(FCC)or Director of Telecommunications Management/Interdepartmental
Radio Advisory Committee(DTM/IRAC)authorization,and the operation of the equipment is in strict
compliance with applicable requirements of FCC or IRAC. A copy of each applicable license or
authorization shall at all times be maintained by the Lessee for each transmitter being operated. The
Lessee shall provide the Authorized Officer,when requested,with current copies of all licenses for
equipment in or on facilities covered by this lease.
E. The Lessee shall ensure that equipment within his or her facility(including tenant and customer
equipment) operates in a manner which will not cause harmful interference with the operation of
existing equipment on or adjacent to the communications site. If the Authorized Officer or authorized
official of the Federal Communication Commission (FCC)determines that the Lessee's use interferes
with existing equipment,the Lessee will promptly take the necessary steps to eliminate or reduce the
harmful interference to the satisfaction of the Authorized Officer or FCC official.
S0P368 Pitkin County Board of County Commissioners Page 3 of 7
F. When requested by the Authorized Officer,the Lessee will furnish technical information concerning
the equipment located on the property.
IV. LIABILITIES
A. The Lessee assumes all risk of loss to the authorized improvements.
B. The Lessee shall comply with all applicable Federal, State, and local laws,regulations, and standards,
including but not limited to,the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., the
Resource Conservation and Recovery Act,42 U.S.C. 6901 et seq.,the Comprehensive Environmental
Response, Compensation, and Liability Act,42 U.S.C. 9601 et seq.,and other relevant environmental
laws, as well as public health and safety laws and other laws relating to the siting,construction,
operation and maintenance of any facility, improvement,or equipment on the property.
C. The Forest Service has no duty, either before or during the lease term,to inspect the property or to
warn of hazards and, if the Forest Service inspects the property, it shall incur no additional duty nor any
liability for hazards not identified or discovered through such inspections. This paragraph shall survive
the termination or revocation of this lease,regardless of cause.
D. The Lessee shall indemnify, defend,and hold the United States harmless for any violations incurred
under any such laws and regulations or for judgments,claims,or demands assessed against the United
States in connection with the Lessee's use or occupancy of the property. The Lessee's indemnification of
the United States shall include any loss of personal injury, loss of life or damage to property in
connection with the occupancy or use of the property during the term of this lease. Indemnification shall
include, but is not limited to,the value of resources damaged or destroyed; the costs of restoration,
cleanup, or other mitigation; fire suppression or other types of abatement costs;third party claims and
judgments; and all administrative,interest, and other legal costs. This paragraph shall survive the
termination or revocation of this lease,regardless of cause.
E. The Lessee has an affirmative duty to protect from damage the land,property, and interests of the
United States.
F. In the event of any breach of the lease by the Lessee,the Authorized Officer may,on reasonable
notice, cure the breach for the account at the expense of the Lessee. If the Forest Service at any time
pays any sum of money or does any act which will require payment of money,or incurs any expense,
including reasonable attorney's fees, in instituting,prosecuting, and/or defending any action or
proceeding to enforce the United States rights hereunder,the sum or sums so paid by the United States,
with all interests,costs and damages shall,at the election of the Forest Service,be deemed to be
additional rental hereunder and shall be due from the Lessee to the Forest Service on the first day of the
month following such election.
V. OTHER PROVISIONS
A.Nondiscrimination. The Lessee shall at all times operate the described property and its appurtenant
areas and its buildings and facilities,whether or not on the property, in full compliance with Title VI of
the Civil Rights Act of 1964 and all requirements imposed by or pursuant to the regulations issued
thereunder by the Department of Agriculture and in effect on the date this lease is granted to the end that
no person in the United States shall, on the grounds of race, sex, color,religion or national origin,be
SOP368 Pitkin County Board of County Commissioners Page 4 of 7
excluded from participation in,be denied the benefits of, or be subjected to discrimination under any of
the programs or activities provided thereon.
B. Revocation, Termination and Suspension.
1. General. For purposes of this lease,termination, revocation, and suspension refer to the cessation
of uses and privileges under the lease.
"Revocation" refers to an action by the Authorized Officer to end the lease because of
noncompliance with any of the prescribed terms, abandonment,or for reasons in the public interest.
Revocations are appealable.
"Termination"refers to the cessation of the lease under its own terms without the necessity for any
decision or action by the Authorized Officer. Termination occurs automatically when,by the terms
of the lease, a fixed or agreed upon condition, event,or time occurs. For example,the lease
terminates at expiration. Terminations are not appealable.
"Suspension" refers to a revocation which is temporary and the privileges may be restored upon the
occurrence of prescribed actions or conditions. Suspensions are appealable.
2. This lease may be suspended or revoked upon breach of any of the conditions herein or upon
nonuse. Nonuse refers to a failure to operate the facilities on the property for a penod of 1 year.
3. Except in emergencies,the Authorized Officer shall give the Lessee written notice of the grounds
for revocation or suspension and a reasonable time,not to exceed 90 days,to complete the corrective
action. After 90 days,the Forest Service is entitled to such remedies as provided herein.
4. This lease may be revoked at the discretion of the Forest Service when in the public interest.
When revoked in the public interest,the Lessee shall be compensated subject to the availability of
appropriated funds. Compensation shall be based upon the initial cost of improvements located on
the lease, less depreciation as allocated over the life of the improvements as declared by the Lessee's
Federal tax amortization schedules.
5. Any discretionary decisions or determinations by the Authorized Officer on revocation or
suspension are subject to the appeal regulations at 36 CFR 214, or revisions thereto.
6. In the event the Authorized Officer decides not to issue a new lease,or the Lessee does not desire
a new lease,the Authorized Officer and the Lessee shall,within six months prior to the termination
date of this lease, agree upon a mitigation plan to restore and stabilize the site.
7. Upon termination or revocation of the authorization, delinquent fees and other charges associated
with the authorization will be subject to all rights and remedies afforded the United States pursuant
to 31 U.S.C. 3711 et seq. Delinquencies may be subject to any or all of the following conditions:
a. Administrative offset of payments due the holder from the Forest Service.
b. Delinquencies in excess of 60 days shall be referred to United States Department of Treasury
for appropriate collection action as provided by 31 U.S.C. 3711 (g), (1).
S0P368 Pitkin County Board of County Commissioners Page 5 of 7
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c. The Secretary of the Treasury may offset an amount due the debtor for any delinquency as
provided by 31 U.S.C. 3720, et seq.).
In the event this lease is revoked for noncompliance,the Lessee shall remove all structures and
improvements within 90 days,except those owned by the United States, and shall restore the site as
nearly as reasonably possible to its original condition unless this requirement is otherwise waived in
writing by the Authorized Officer.
If the Lessee fails to remove all structures or improvements within the prescribed period,they shall
become the property of the United States and may be sold,destroyed, or otherwise disposed of without
any liability to the United States.
C. Members of Congress.No member of or Delegate to Congress or Resident Commissioner shall
benefit from this lease whether directly or indirectly, except when the lease provides a general benefit to
a corporation.
D. Reservations. This lease is granted subject to the following reservations by the United States:
1. The right to all natural resource products now or hereafter located on the property unless stated
otherwise, and the right to utilize or dispose of such resources insofar as the rights of the Lessee are
not unreasonably affected.
2. The right to modify the communications site plan as deemed necessary.
3.The right to enter upon the lease and inspect all facilities to assure compliance with the conditions
of this lease.
4. The right of the United States to require common use of the property, and the right to authorize
use of the property for compatible uses, including the subsurface and air space.
In the event of any conflict between any of the preceding printed clauses or any provisions thereof
and any of the following clauses or any provision thereof, the preceding clauses shall control.
E. Noxious Weed and Exotic Plant Prevention and Control (D-10). The holder shall be responsible for
the prevention and control of noxious weeds and exotic plants arising from the authorized use. For
purposes of this clause,noxious weeds and exotic plants include those species recognized as such by the
White River National Forest. The holder shall follow prevention and control measures required by the
Forest. When determined to be necessary by the Authorized Officer, the holder shall develop a plan for
noxious weed and exotic plant prevention and control. These plans must have prior written approval
from the Authorized Officer and,upon approval, shall be attached to this permit as an appendix.
F. Superseded Authorization(X-18). This authorization supersedes an authorization designated:
SOP131 Pitkin County Board of County Commissioners 11/18/2004.
G. Improvement Relocation(X-33). This authorization is granted with the express understanding that
should future location of United States Government-owned improvements or road rights-of-way require
the relocation of the holder's improvements, such relocation will be done by, and at the expense of,the
holder within a reasonable time as specified by the Authorized Officer.
S0P368 Pitkin County Board of County Commissioners Page 6 of 7
H. Disputes (X-96). Appeal of any provisions of this authorization or any requirements thereof shall be
subject to the appeal regulations at 36 CFR 214, as amended or revisions thereto.
r"
ACCEPTED this day of , 2017, I Ei& ' `&,9p ,
(Printed Name)
the undersigned have read, understand and accept the terms and conditions of this lease.
Pl(a. elqiU- •
Lessee Signature
IN WITNESS WHEREOF, the Forest Service,by its Authorized Officer,has executed this lease on the
day and year first written above.
Ull ED STATES OF AMERICA
A1 411 ...A AA, i.
SCOTT G. FIT AMS,Forest Supervisor
White River Nati. p
.rest
Forest Service
Department of Agriculture
According to the Paperwork Reduction Act of 1995,an agency may not conduct or sponsor,and a person is not required to respond to a collection of
information unless it displays a valid OMB control number.The valid OMB control number for this information collection is 0596-0082 The time required
to complete this information collection is estimated to average one(I)hour per response,including the time for reviewing instructions,searching existing
data sources,gathering and maintaining the data needed,and completing and reviewing the collection of information
The U.S.Department of Agriculture(USDA)prohibits discrimination in all its programs and activities on the basis of race,color,national origin,age,
disability,and where applicable,sex,marital status,familial status,parental status,religion,sexual orientation,genetic information,political beliefs,repnsal,
or because all or part of an individual's income is derived from any public assistance.(Not all prohibited bases apply to all programs)Persons with
disabilities who require alternative means for communication of program information(Braille,large pnnt,audiotape,etc)should contact USDA's TARGET
Center at 202-720-2600(voice and TDD).
To file a complaint of discrimination,write USDA,Director,Office of Civil Rights.1400 Independence Avenue,SW,Washington,DC 20250-9410 or call
toll free(866)632-9992(voice).TDD users can contact USDA through local relay or the Federal relay at(800)877-8339(TDD)or(866)377-8642(relay
voice) USDA is an equal opportunity provider and employer
The Privacy Act of 1974(5 U.S.C.552a)and the Freedom of Information Act(5 U.S C.552)govern the confidentiality to be provided for information
received by the Forest Service.
SOP368 Pitkin County Board of County Commissioners Page 7 of 7
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