HomeMy WebLinkAboutbocc.ord.033.2017 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. 0 35 -2017 Contract No. 357.2017
RECITALS: (Attached)
I Pursuant to 30-35-301 C.R.S., the Board of County Commissioners of Pitkin County,
Colorado ("BOCC"), a home mle 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 1 of the Home Rule Charter("HRC"), the BOCC is authonzed 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 permittee (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 /5 DAY OF ✓ 61,'.4 Kcizefr , 2017 AND
SS FOR SECOND READING AND PUBLIC HEARING ON TH 6,Ztt DAY OF
2t't„r�,t,bu,y 2017.
NOTICE OF PUBLIC HEARING AND TITLE AND SHORT SUMMARY OF TF E
RESOLUTION PUBLISHED IN THE ASPEN TIMES WEEKLY ON THE j3"'`� DAY OF
I `[,Vjtatz✓ , 2017.
NOTICE OF PUBLIC HEARING AND THE FULL TEXT OF THE RESOLUTION POSTED
ON THE OFFICIL PITKIN COUNTY WEBSITE(www pitkincounty corn ) ON THE
'}3 OF 2017.
ADOLF7yD AFTER FINAL READING AND PUBLIC HEARING ON THE 6 DAY
OF' VI tait4ty 2017
PUBLISHED BY TITLE AND WORT SUM RY, AFTER ADOPTION, IN THE ASPEN
TIMES WEEKLY ON THE/'/ DAY OF yudar, 2017.
POSTED BY TITLE AND SHORT SUMMARY ON THE OFFICL PITKIN COUNTY
WEBSITE (v Ntw.pukmcounty.com) ON THE 7 DAY OF 1 L&lube y
ATTEST ^ BOARD OF COUNTY COMMISSIONERS
1
By /4 . 14 . .L! 21fOr' By/ iI,tpttiP��^] t t4;�Ll��
t----
Jean., to Jones George New n, Chau
Deputy County Clerk
t Date: r -.1/ E/i,
APPROVED AS TO FORM MANAGER APPROVAL
--____,
/ /J
John El .unty > - . ey Cron Pe o , County Manager
Contract No. 357-x./.7
LOGE COMMUNICATION SITE LEASE AGREEMENT
BETWEEN ASPEN SKIING COMPANY AND PITKIN COUNTY
THIS LOGE CONIMUNICATIOA SITE LEASE AGREEMENT ("Agreement") is made
and entered into this 6-arday of 1.2.68,24,44er 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
1.1 For and in consideration of the mutual promises and cosenants set forth below,
the Landlord and the Tenant agree as follows
A. The Tenant, through its employees and agents operates certain
telecommunication sen ices 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, USFS 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 I leadquarters (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 arc hereinafter
collectively referred to as the "Site "
E The Tenant shares telecommunication facilities and services w ith 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
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 he approximately one hundred and eighteen
square feet (I 18 sq ift) in site. Tenant's Space is to be secure and
shall be locked off from the remainder of the Premises. Tenant
shall he responsible for the Tenant's Space security as set forth in
Section 4 3
ii Provide electrical power to operate the equipment
in 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.
ri. 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.
vii. 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
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Install a backup generator and foundation adjacent to the Site
outside the Premises
ii Install a wall-mounted air conditioner within the Premises.
in. 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 or dei 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.
yin. 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 1 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 arc
hereby disclaimed by Landlord
2.2 Term The lease shall be 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 terns to commence upon the expiration of
the preceding renewal term. Tenant shall exercise the renewal options by providing Landlord
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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 renewal term shall be deemed part of the Term for all
purposes under this Agreement. Either Party shall provide no less than ninety (90) 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 I Rent. In consideration of the rights granted herein, the Tenant agrees to pay the
Landlord rent in the amount of twenty thousand dollars (S20,000 00) for the period covering 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 be due on or before the same
month and day of the following year. After expiration of the initial Term and upon Tenant's
elections to renew the lease Term, Rent shall increase at the rate of three percent (3%1 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.
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4.2 Site Access. With reasonable advanced wntten 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,
constiuct. 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 responsible 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
5 1 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 S3,000,000 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-contributory to any insurance earned 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. § 24-10-114(11, 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 occumng 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 l'enant 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, taws, and regulations The Landlord makes no representation
or warranty hereunder that the Landlord and the Tenant will be 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 appro'al necessary
therefore is not obtained after all reasonable efforts, then this Agreement shall terminate at the
time that the governmental body having authority to issue such permit finally determines to deny
such permit
5.3 Relocation of Facilities and Operations. The Landlord acknowledges that dunng
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' w ritten 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
a sting and shall be provided by electronic delivery to the e-mail addresses set forth below and
by one of the following methods 1) 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 confirmation 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
c/o Phvlis Mattice P O. Box 1248
123 Emma Rd., Ste. 106 Aspen,Colorado 81612
Basalt, Colorado 81621 dclark(naaspensnowmass.com
ph yl is.mattice(a pitki ncounty.com
With Copies To:
Pitkin County Attorney's Office
123 Emma Rd , Ste. 204
Basalt, CO 81621
attomeyta pitkincounty corn
5 8 Binding Agreement - Recording This Agreement is binding upon the panics
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
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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 naive or
abrogate, or intend to naive or abrogate by any provision of this Agreement the monetary
limitations or any other rights, immunities, or protections afforded by the Colorado
Governmental Immunities Act, CR S §§ 24-10-101, et seg , as it may be amended from time to
time Nothing In this Agreement shall be construed as n aiving 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 Severabilith. 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 n ritten
agreement of the parties hereto.
5.14 No Waiver. I he 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,
with the same force and effect as if all parties signed on the same signature page
8
IN WITNESS WI[EREOF, the parties to this Agreement hereby hereto have caused this
agreement to he executed as of the day and year first above wntten
PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS
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BY: V tl:� G1
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Rachei-8tR7chards, hair
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APPROVED AS TO FORM.
John EI}, Count Atto Jon ,rtic. ounty Manager
ASPEN SKIING COMPANY, LLC
BY. __+0" _ _ DATE: /17/1/! -
Title: R MAT7tlEu& / 'JE-
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