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HomeMy WebLinkAboutbocc.con.357.2017 - BOCC AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, AUTHORIZING A LEASE AGREEMENT WITH ASPEN SKIING COMPANY FOR LOGE COMMUNICATION SITE ORDINANCE NO. U 3 3 -2017 Contract No. 357.2017 RECITALS: (Attached) I. Pursuant to 30-35-301 C R.S., the Board of County Conunissioners of Pitkin County, Colorado("BOCC"),a home rule county, 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 I of the Home Rule Charter("HRC"), the BOCC is authorized to take official action by Ordinance for certain matters where action is prescribed pursuant to the Colorado Revised Statues as amended 3. The United States Forest Service owns property in Pitkin County, commonly known as Aspen Highlands Ski Area 4. Pitkin County is a U.S. Forest Service pemnttee (Communications Use Lease -ASP860) to operate and maintain a communications tower for the purpose of public safety radio, FM radio, and other commercial services 5. Aspen Skiing Company is U S Forest Service permittee of lands and facilities at Aspen Highlands Ski Area. 6 Pitkin County desires to enter a lease agreement with Aspen Skiing Company to utilize the Loge Peak Ski Patrol Headquarters to house communication equipment for the communication tower at an annual rate of four thousand dollars ($4,000)plus five hundred dollars ($500) for utilities The County agrees to provide space for Aspen Skiing Company on the tower for their radio equipment needs. 7 The County agrees to enter into a five(5) year lease agreement that will expire on May 31, 2022, with two(2) consecutive five-year renewal options. 8. The BOCC finds that adoption of this ordinance is in the best interest of the citizens of Pitkin County. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Pitkin County, Colorado that it hereby adopts an ordinance authorizing a lease agreement with Aspen Skiing Company for Loge Communication Site 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. INTRODUCED AND FIRST READ ON THE /64)" DAY OF 41'27t'Gufr , 2017 AND S FOR SECOND READING AND PUBLIC HEARING ON THE 6Zt"- DAY OF r 2017 NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF THE RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE f3 DAY OF I `(N.ty�Eu v , 2017. NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED ON THE OFFICI L PITKIN COUNTY WEBSITE(www nitkmcountN.com) ON THE °}3 `4.` DAY OFf1VV%lcb.zr 2017 ADOE7rD AFTER FINAL READING AND PUBLIC HEARING ON THE Gt ' DAY OF' (/c 1-14x✓ 2017. PUBLISHED BY TITLE AND SJIORT SUM RY, AFTER ADOPTION. IN THE ASPEN TIMES WEEKLY ON THE/'/ DAY OF .0c Ler, 2017 POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICJAL PITKIN/� COUNTY WEBSITE (www nitkincounty.cmn ) ON THE 7 DAY OF()PAWL r ATTESTS BOARD OF COUNTY COMMISSIONERS By JA _ . 1. �4(�s' B7�' ,JR ui(',12 G' Jean: le Jones George New an, Chair\ Deputy County Clerk t Date. / i- L/19 APPROVED AS TO FORM MANAGER APPROVAL John El runty 1 • ey Jon Pe5co81"c.Countyer Contract No. 357-;1)// LOGE COMMUNICATION SITE LEASE AGREEMENT BETWEEN ASPEN SKIING COMPANY AND PITKIN COUNTY THIS LOGE COMMUNICATIOA SITE LEASE AGREEMENT ("Agreement") is made and entered into this & *day of .a_ r 2017, by and between Aspen Skiing Company, a Colorado limited liability company, ("Landlord") and the Board of County Commissioners of Pitkin County, a Home Rule Charter County ("Tenant") ARTICLE I Purpose I 1 For and in consideration of the mutual promises and covenants set forth below, the Landlord and the Tenant agree as follows. A. The Tenant, through its employees and agents operates certain telecommunication services and relay facilities. B. The Landlord is the owner and U S Forest Service permittee of lands and facilities in Pitkin County, Colorado commonly known as the Aspen Highlands Ski Area, hereinafter referred to as the "Ski Area." C. The Tenant is the lessee of a U.S. Forest Service communications use lease at Aspen Highlands Ski Area and is permitted to install, operate and maintain a communications tower (the "Tower") for the purpose of hosting radio communications including public safety radio, USES communications, ASC communications, translator, commercial, and microwave services D. The Tenant desires to enter in to this Lease with Landlord in order to utilize portions of the Loge Peak Ski Patrol Headquarters (the "Premises") which is located within the Ski Area and adjacent to the Tower, for the sole purpose of housing communications transmission and relay equipment The Premises, the Tower, and the land between the Premises and Tower upon which the above ground power conduit running from the Premises to the Tower are hereinafter collectively referred to as the"Site." E. The Tenant shares telecommunication facilities and services with the State of Colorado for the purposes of operating the state-wide Digital Trunked Radio System ("DTRS"). The Tenant provides facilities to the State of Colorado Office of Information Technology Public Safety Network ("PCIN") and the State maintains the DTRS equipment. F. The Landlord and the Tenant desire to provide tower and site facilities for commercial wireless services I 1.2 Sites and Facilities The Landlord shall provide the Tenant with a secure space inside the Premises to house its telecommunication and relay equipment. The Tenant shall, at all times, provide the Landlord with space on the Tower to house its telecommunication and weather antennae. The Tenant's radio transmission and relay equipment located within the Premises is hereinafter collectively referred to as the "Equipment" The antenna and relay equipment located on the Tower are hereinafter collectively referred to as "Tower Equipment," The Landlord' portion of the Tower Equipment is hereinafter collectively referred to as the "Landlord Tower Equipment." 1.3. Roles and Responsibilities A Landlord Obligations. Landlord shall. Provide secure space within the Premises for public radio transmission and relay equipment ("Tenant's Space") The Tenant's Space shall be approximately one hundred and eighteen square feet (118 sq/ft.) in size Tenant's Space is to be secure and shall be locked off from the remainder of the Premises. Tenant shall be responsible for the Tenant's Space security as set forth in Section 4.3 it. Provide electrical power to operate the equipment. ui. Permit the Tenant to install a backup generator and foundation adjacent to and outside the Premises. iv. Permit the Tenant to install a wall-mounted air conditioner within the Tenant's Space v Permit the Tenant to install a propane tank adjacent to and outside the Premises for backup power vi. Permit the Tenant to install ground rods outside and next to the Premises to insure the Equipment and personnel are not subject to electrical harm or injury vu. Permit the Tenant to run above-ground power conduit from the Premises to the Tower in order to operate the antenna transmission lines B. Tenant Obligations Tenant shall at its sole cost and expense. 2 Install a backup generator and foundation adjacent to the Site outside the Premises. ii Install a wall-mounted air conditioner within the Premises. iii. Install a propane tank adjacent to the Site outside the Premises for backup power iv. Install ground rods next to the Premises to insure the Equipment and personnel are not subject to electrical harm or injury Run above-ground conduit from the Site to the Tower in order to run antenna transmission lines. vi Provide space on the Tower for Landlord Tower Equipment. vii. Maintain the backup generator, including fuel replenishment at no cost to the Landlord. viii. Maintain the Equipment and the Tower Equipment including A/C, UPS and batteries to insure continuous and uninterrupted twenty- four hours per day operations at no cost to the Landlord. ix Issue the necessary permits for the Landlord's to construct an addition to the Loge Peak Patrol Headquarters equal or greater in size than the space Tenant will utilize within the Premises. ARTICLE II Grant and Term 2 I Lease Grant In consideration of the mutual covenants herein and the rent to be paid hereunder, Landlord grants to Tenant a lease to the Site and within the Premises as more specifically depicted on Exhibit A. attached hereto and hereby incorporated by reference Tenant hereby expressly acknowledges that is has carefully examined the Premises, Tenant has found the condition thereof satisfactory for all purposes and intended uses hereunder, and that Tenant accepts the Site in its present state and condition, AS IS, without reliance of any kind on any representations of landlord with respect thereto all of which are hereby disclaimed by Landlord. 2 2 Term. The lease shall he for five (5) years and shall commence on final signature of this Agreement ("Commencement Date") and expire on May 31, 2022 (the "Term"). The 'Tenant shall have two (2) consecutive five (5) year renewal options. the first to commence on the expiration of the initial Term and subsequent renewal term to commence upon the expiration of the preceding renewal term. Tenant shall exercise the renewal options by providing Landlord 3 with written notice no less than ninety(90) days prior to the expiration of the term then in effect Upon exercise of any renewal option, such renes al term shall be deemed part of the Term for all purposes under this Agreement Either Party shall provide no less than ninety (901 days written notice prior to the expiration of the then operative Term of the intention to terminate this Agreement. 2.3 No Partnership. Under the terms of this Lease, the Tenant shall not be considered an employee, agent, partner, joint venturer, or contractor of the Landlord It being the express intention that the relationship of the parties shall be at all times that of Landlord and Tenant. The County's status shall be solely that of a Lessee Nothing in this agreement is intended to confer any benefit upon any third party. ARTICLE III Rent 3.1 Rent In consideration of the rights granted herein, the Tenant agrees to pay the Landlord rent in the amount of twenty thousand dollars ($20,000.00) for the period cos enng the initial five (5) year Term set forth in Paragraph 2.2 above, at an annual rate of four thousand dollars ($4,000 00) Annual Rent shall be due and payable on or before the Commencement Date stated in Paragraph 2.2, and, thereafter, annual Rent shall he due on or before the same month and day of the following year After expiration of the initial Term and upon 1 enant's elections to renew the lease Term, Rent shall increase at the rate of three percent (3%) for the following five (5) year renewal Term and an additional three percent (3%) for any renewal Term thereafter. The Tenant shall provide sufficient space on the Tower as may be required to Landlord at no cost to Landlord. 3.2 Utilities For the initial Term of this Lease, the Tenant shall pay to the Landlord five hundred dollars ($500.00) annually for non-emergency electricity provided to the Site Tenant shall pay an additional one hundred dollars ($100 00) annually for each successive option Term exercised by Tenant ARTICLE IV Possession and Use 4 1 Site Veto and Non-Interference. Landlord shall have the right to veto or change the selection of any portion of the Site if, in its sole discretion and at any time, it determines that the use of the Site poses and unacceptable risk to the safety of the Landlord employees, guests, and facilities and/or unreasonably interferes with the other operations of the Landlord. In no event shall either Party allow its ownership, operation, maintenance, and use of the Site or Equipment, which includes but is not limited to ongoing radio transmissions, to interfere with either Party's operations in any way In the event of any such interference with operations, notice will be given and the Party shall immediately cease any such activities 4 4.2 Site Access. With reasonable advanced written notice from the Tenant, the Landlord shall provide the Tenant and its partner PCIN with reasonable access to the Site for purposes of maintaining and repairing the Equipment The Parties acknowledge that the ability to safely and effectively access the Site will depend upon weather, surface conditions and other factors, which are beyond the control of the Landlord. Notwithstanding the foregoing. Tenant may go upon the Site at any time in the event of any emergency situation or condition and undertake such emergency repair or replacement activities as it deems necessary and proper to adequately address the emergency situation 4 3 Equipment Installation. Construction, and Maintenance The Tenant shall install, construct, operate, and maintain the Equipment and the Tower Equipment in conformance with all governmental requirements and industry best practices standards. The Tenant shall be solely responsible for maintaining the Equipment and the Tower Equipment and shall have sole responsibility for ensuring that the Equipment and Tower Equipment is secure from being damaged or posing a risk of harm to persons or property belonging to any third party. In no event shall the Landlord be responsible or otherwise liable to the Tenant for any claims, suits, or actions for damages because of bodily injury or property damage which are based upon or arise out of the Tenant's ownership, operation, maintenance, or use of the Equipment and/or use of the Site. 4 4 Tower Equipment Operation and Maintenance. The Landlord may operate, and maintain any Tower Equipment owned by Landlord in conformance with all governmental requirements and industry best practices standards. The Landlord shall coordinate with the Tenant for installing and maintaining any Landlord Tower Equipment and shall have responsibility for ensuring that the Landlord Tower Equipment is secure from being damaged or posing a risk of harm to persons or property belonging to any third party. In no event shall the Tenant be iesponsible or otherwise liable to the Landlord for any claims, suits, or actions for damages because of bodily injury or property damage which are based upon or arise out of the Landlord's ownership, operation, maintenance, or use of Landlord Tower Equipment on the Tower ARTICLE V General Provisions 51 Indemnity. The Tenant agrees to require all contractors, subcontractors, permittees and their respective directors, officers, employees, and agents (collectively the "Indemnitors") to indemnify, defend, and hold harmless the Landlord, its owners, directors, officer, employees, agents, sponsors and volunteers from and against any and all claims of any sort whatsoever, including ordinary negligence, based upon, arising out of, or related in any way to any action or failure to act with regard to the construction and use of the Site and Tower The Tenant shall require that this obligation of indemnity shall include the payment of reasonable attorney fees incurred in the investigation or defense of any claim, regardless of whether the 5 claim is subsequently determined to lack merit. In furtherance of the obligation of indemnity and defense hereunder, the Indemnitors shall at all times during the term of this Agreement obtain and maintain in full force and effect policies of comprehensive general liability insurance providing limits of liability of not less than $2,000,000 per occurrence and $3,000,000 aggregate. The Landlord shall be named as an additional insured on all such policies and said insurance shall be amended to be primary and non-contnbutory to any insurance carried by the Landlord The Indemnitors shall deliver certificates evidencing such coverage to Landlord prior to the commencement any construction of or maintenance activities pertaining to the Site and Tower and all events and activities held thereupon. The requirement to indemnify Landlord shall not apply to Tenant, as a local government In lieu thereof, Tenant shall procure and maintain in effect during the term of this lease as well as during the term of any extensions public liability insurance in amounts not less that the liability limits specified in C R S § 24-10114(1), as it may be amended from time to time, covering the acts, damages, and expenses described in the above indemnification clause Tenant further agrees to add Landlord as an additional insured on its comprehensive general liability insurance covering incidents occurring on the Premises and arising under this Lease Upon Landlord's request, Tenant shall furnish a copy of a current Certificate of Insurance verifying the existence of such coverage. 5.2 Government Approvals. The Landlord and the Tenant shall reasonably cooperate to obtain all federal and local governmental approvals and permits necessary for the conduct of the Tenant's installation, maintenance, and use of the Equipment The Tenant agrees that it will, at all times, conduct all of its operations in compliance with all conditions and requirements of all applicable permits, approvals, laws, and regulations. The Landlord makes no representation or warranty hereunder that the Landlord and the Tenant will he successful in obtaining and maintaining any and all permits and approvals necessary for the conduct of the Tenant's activities during the Term of this Agreement In the event that any permit or approval necessary therefore is not obtained after all reasonable efforts, then this Agreement shall terminate at the time that the governmental both having authority to issue such permit finally determines to deny such permit. 5.3 Relocation of Facilities and Operations The Landlord acknowledges that during the Term of this Agreement, including any renewal term thereof, it may be necessary or desirable to relocate all or any portion of the Equipment or operations due to governmental requirements or redevelopment of portions of the Site, the Premises, the Tower or the Ski Area The Landlord shall have the right to require the Tenant to make any such relocation as it may determine in its sole discretion The Landlord shall notify the Tenant at least ninety (90) days in advance of any such requests In the event that any such relocation is unacceptable to the Tenant, the Tenant may terminate this agreement upon fourteen (14) days' written notice In the event of any such termination, the Tenant shall remain liable for the performance of all accrued but unpaid rent 6 5.4 Assignment Neither party shall assign its rights hereunder without the prior written approval from the other party hereto. 5.5. Entire Agreement This agreement constitutes the entire Agreement between the Parties and is intended to be a complete and integrated contract. No amendment or change to this Agreement shall be binding or effective unless in writing and executed by both parties hereto 5.6. Termination. Either party may terminate this agreement upon ninety (90) day advance written notice at any time for any reason or no reason. In the event of any termination, all amounts due to the Landlord prior to the effective date of the termination shall remain due and immediately payable according to the terms set forth above. 5 7 Notices. Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods I) hand-delivery or 2) registered or certified mail, postage pre- paid to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confinnauon of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process To: Pitkin County To: Aspen Skiing Company, LLC: Board of County Commissioners David W. Clark of Pitkin County Associate General Counsel Go Phvlis Mattice P 0 Box 1248 123 Emma Rd , Ste. 106 Aspen, Colorado 81612 Basalt, Colorado 81621 dclark(daspensnowmass.com phvlis.mattice(apitkincounty corn With Copies To: Pitkin County Attorney's Office 123 Emma Rd., Ste. 204 Basalt, CO 81621 attomey(ri pitk i neount v.corn 5.8 Binding Agreement - Recording This Agreement is binding upon the parties hereto and any sale of the subject property, or any portion thereof shall be subject to this Agreement. This Agreement shall be recorded with the Pitkin County Clerk and Recorder Deeds to subsequent owners of the subject property shall provide notice of this Agreement and the obligations contained herein. 5 9 Governing Law; Venue. Attorney Fees This Agreement and the rights and 7 obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for all actions arising under this Agreement shall be Pitkin County, Colorado In the event legal remedies must be pursued to resolve any dispute or conflict regarding the terms of this Agreement or the rights and obligations of the parties hereto, the substantially prevailing party shall be entitled to recover costs incurred in pursuing such remedies, including expert witness fees and reasonable attorney fees. 5 10 No Waiver of Governmental Immunity The parties acknowledge that Tenant, its directors, officials, officers, agents, and employees is relying upon and does not waive or abrogate, or intend to waive or abrogate by any provision of this Agreement the monetary limitations or any other rights, immunities, or protections afforded by the Colorado Gm,emmental Immunities Act, C R S. §§ 24-10-101. et set] , as it may be amended from time to time. Nothing in this Agreement shall be construed as waiving or estopping any rights Landlord may have to pursue claims against Tenant not barred by the Colorado Governmental Immunities Act 5.11 Authorization of Signatures. The parties acknowledge and represent to each other that all procedures necessary to validly contract and execute this Agreement have been performed and that the persons signing for each party have been duly authorized to do so 5 12 Severability If any term or provision of this Agreement shall be held to be invalid or unenforceable by a Court with competent jurisdiction or by operation of statute, the remaining terms and provisions of this Agreement shall continue to exist and shall be valid and enforceable to the fullest extent permitted by law. 5 13 Amendment. This Agreement, including its Exhibits, may be amended by written agreement of the parties hereto. 5.14 No Waiver. The waiver by any party to this Agreement of any term or condition of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. 5.15 Counterparts This Agreement may be signed using counterpart signature pages, ith the same force and effect as if all parties signed on the same signature page 8 IN Kll NESS WI IFREOF, the parhes to tin Agreement hereby hereto have caused this agi cement to he executed us of the day and year first above written PI KIN COUNTY BOARD OF COUNTY COMMISSIONERS BY: , j/ t':.Cc'c YL (A4A'--, IIATE hl '` 4/ 19 R„tcheU Richards, F'hair —f v AJQ,w,w;: \ APPROVED AS TO FORM. John Ely, Count), A llo Jon C ounty Manager ASPEN SKIING CC),MPANY, LLC BY. +fr• DATE: /lJ/k Title: R 44AT7NEUJ v. 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