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HomeMy WebLinkAbout1993 Ordinance No. 052ORDINANCE NO . ,5,?- SERIES OF 1993 BY AUTHORITY COUNCIL BILL NO . 117 INTRODUCED BY COUNCIL MEMBER HABENICHT AN ORDINANCE APPROVING AN AGREEMENT BETWEEN CELLULAR ONE AND THE CITY OF ENGLEWOOD. WHEREAS, Cellular One has requested authoriz.ation to place certain transmiuion •quipment on the En1tlewood Water Tower; and WHEREAS, Cell ul •r One .,;n pay $500 per month rent for such location; WHEREAS, Cellular One and th• City uf Englewood have 1pecifled in a contract permitted uses, renewals, avoidance of interference, access, as wc,ll aa provisions for default, termination, taxes, in1urance a n,J other provisions to protect the City while allowing an e&Sential service to Cel!ular One an , i'.r, t\.Momers who aJso are citizens of Enelewood . NOW, THEREmh'E, er: I'! ORn 'Jl,tll BY THE CITY CO UNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FO L ' '.,WS : Sl:wwl..l. The City Council of the City of Englewood hereby approves the Cellular One Wa tsr Tower Lea5e Agreement, a copy of whlth is attached hereto as Exhibit 1. lilil:tilm...2. The City Mi.negor sha:I be de signated to sign on behalf of the City or Englewood. Introduced, read in full , a nd passed on first reading on the lit day of November, 1~93. Published as a Bill for an Ordinance on th, 4th day of November, 1993. Read by title and pa55ed on final reading on the 15th day of November, 1993. Published by title as Ordinance N4&-Series of 1993, on the 18th day of November, 1993. ATTEST: odu«~-~jlM-~ Patricia H. Crow, City Clerk I, Patricia H. Crow, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a t~.copy of the Ordinance passed on flnal reading and published 19 a by title as Ordinance No.~Series of 1993. 1 ~ • _ . ~ ~~✓ -- Patricia H. Crow, City Clerk .). WATERTOWERLEASEAGREEMENT THIS WATER TOWER LEASE AGREEMENT (this "Leau") is entered into this_ day of-----~ 1993 ("Execution Date") between the City of Englewood ("Landlord") and Denver Cellular Telephone ,:ompany d/b/a/ Cellular One C-TeMnt"). 1. El:l:.mw:I , Subject to the terms and conditions described herein, Landlord leases to Tenant certain space on the water tower (the ''Tower") and certain space to constr:.ict an equipment shelter (the "Equipment Shelter') located on the real property described in attached Ex hi bit A (the "Property'"). The location and orientation of Tenant"• space on u,, Tower and within the Equipment Shelter (the "'Premises") is described and depicted in the attached Exhibit B. 2. '.[u:m. The in itial tem1 of this Lease shall be five years, commencing upon the earlier of (a ) written notification by Tenant to Landlord of Tenant's receipt of all Governmental Approvals, or (b ) six (6) months from Execution Date of this Lease (the "Commencement Date"), and terminating at midnight on the last day of the month in which the fifth annual anniversary of the Commencement Date shall have occurred . If Tenant shall not have obtained all Governmental Ap provals on or before th e date specified in 2 above, then Tenant shall , l,y notice to Landlord, can,:el all rights and ob ligations under this Lease , provided Tenant reimbur~es Landlord for actual, reasonable, l~gal or other preparatory expenses incurred to a maximum of SS00 .00. 3. Permitted U,e. The Premises may be used by Tenant only for permitted uses, which are the transmissio n and reception of radio communication signals and for the installation, maintenance, repair or replacement of N!:lated facilities, antennas, equipment and related activities. Tenant shall obtain, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the Premises from all applicable government and/or regulatory entities (the '"Governmentai Approvals"). Tenant may (prior to or after the Commencement Date) obtain a title rr:p!'l rt, perform surveys, soil tests, arid othe: engineering procedures or environment.a.I investigations on, uhder !:ind over the Property, necessary to determine that Tenant's use of the premises will Ii, compatible with Tenant's ,mgineering !tpecifications, system, design , operal\ons and Governmental Approvals. Said surveys shall be coordinated with l'he Landlord and shall not interfere with the current use oft'ne facility. Landlo"d agrees to cooperate with Tenant (at no cost, to Landlord), where reqttired , to perform such procedures or obtain Governmental Approvals . L,ndlord and Tenant agree that if, based on the result of any environmental invef.tigation or inquiry, Landlord or Tenant determines that the condition of the Propecty is unsatisfactory or if Landlord or Tenant believes that lea sing or continued lea,;ing of the Premises would expose Landlord or Tenant to undue risks of go vernment action or intervention or third.party liability, Landlorrl or Tenan t may, without any penalty or liability, immediately term.inate this Lease Agreement . 4 . &.111 . a. The Wet.r Tower is an inv1h10.ble r. ~urce to the City both u a water facility •nd for the use in firt prevention . All other uses including W1 lease, shall be ancilltry to the Water Tower ■ m o 'n purpose. Rent in this matter does not reflect th e true vtlue of the uae of tho Water Tower. The City is accommodating Ce llular One by lettlne it use its facility and by charging a nominal sum as renL Both parties understand t hat rent does not re0ect the true value of the use. b. Upon the Co mmencement Da t e, Tenant Shall pay Landlord, as rent, the sum of Five Hundred Dollars ($500.0C) per month ("Renn. Rent shall ue payable on the fi rst day of each month in advance to City of Englewood at Landlord's address !J)eci fied in Paragraph 12 below. c. If this Lease is terminated at a time ,ther than on the last day of a month, Rent shall ~ prorated as of the date of 1'!nn; .ation, and, in the event of term ination for any reason other than nonpayment f Rent, all prepaid Rents o.'1 all be refunded to TenanL 5. ~-Tenant shall have the right to OY.te nd this Lease upon approval by the City for five additional, five -year terms ("Renewal Term"). E ach Renewal Tern, shall be on the same torms and conditions as set forth herein exce~t that Rent shall be increased after each term by a percentage equal to the percentage increase in the Consumer Price lndox for the (Denver) Metropolitan Statistical Mes. Tenant shall be responsible for communicating the ,,rr,ount of the rental acljustment to Landlord and shall provide Landlord wi th supporting data upon which the acljustment is calculated. Tenant shall noti fy Landlord , in writing, of Tenant's intention to renew this Lease, at least 90 days prior to th e expiration of the term or any I<enewal Term. City shall have 30 days to acce pt or r eject the rene>1,al term. lfnot rejected, the contract will continue. If Tenant shall remain in possession of the Property and Tower at the expiration of this Lease or any R,,new al without a written agreement, such tenancy shall be deem ed a month-to-month tenancy under the same terms and conditions of this Lease. 6. 1ntedecrncr a . Tenant shall not use the Premises in any way which interferes with the use or the Property by Landlord, or tenants or licens,,es of Landlord, with rights to the Property prior in lime to Tenant's. Such interference shall be deemed• material breach and upon notice shad immediately rectify said interference or this lease shall terminate. TenPnt further warra nts that it will not cause any interference with the e:d s ting communication systems being used by Landlord on the Tower. Prior to acl ual install a tion of equipment by Tenant an interference stuciy shall be conduc~d, at Tenant's expense , analyzing Tenant's proposed frequencies and the existing frequencies being utilized on the site. This study shall be a cce pted and a pprove d by Landlord prior to any install ation of cabling, a n tennas, or -2- ele<tTonic equipment. Said approval or frequency study shall not to be unreasonably withheld. b. Tenant understands and agrees to the sensitivity of'the use or this site as a private communications facility over and above its current uses . Should a legal suit be 61ed by any individual , corporation, partnership, asaociation, municipality or quasi-municipality, which directly relates to the in,•J.iiation of Tenant', Antenna Facilities, this Lease shall terminate. Tene,,t shall have 90 days from the date that Landlord provides written notincation and a ropy of said action to Tenant to remove it& Antenna Faci1itiea fi-om the site. 7. Imnrovcmcnts· JJtjljtje,· Acrcn a. Tenant shall huve the right, at its expense , to place and maintain on the Premises improvements, personal property and faciJities necessary to operate its facilities (the "Antenna Fucilities '), including, wi th out limitation, the persona} property, equipment and radio tnnsmitting and receiving BJ 1tennas , and electronic equipment described on attached Exhibit C, so long as it does not interfere with the current us e of the Water Tower. Landlord's prior con sent to the plans and installation of the Antenna Facilities shall be required but shall not be unreasonably withheld or delayed and shall be deemed given as to those items listed M Exhibit C hereto. The Antenna Facilities shall remain the exclusive • rty of Tenant. Tenant shall have the right to remove the Antenr ,dties upon termination of this Lease. In addition , Tenant shall place a pre fabricated Equipment Shelter, at Tenant'& cost, on the: Premises which will house Tenant's equipment. Tenant shall also locate a prefabricated equipment building on the premises to provide 144 square feet of space (12 ' X 12') for Landlord's electronic equipment. Tenant will be responsible for all co sts associated witl> the relocation of Landlord's equipment to the new cqcipmen t building. b. Tenant shall hove the right to install utilities, at Trnant's expense, and to improve the present utilities •m the Premises (including, but not limited to, the installation of emergency power generators). Tenant may place utilities on, or Lring utilities across, the Property in order to service the premises and the Antenna Facilities. Tenant shall, wherever practicable, install separate meters for utilities used on the Property. c. Tenant shall have access to the Premises at all times during the term of this Lease and any Renewal Term; however, due to the character or the facility all access ,nto the Tower mu st be coordinated thr ough Landlord, said accesa to Tower shall not be unreasonably delayed . 8. lll:!awt. Any of the following occurrences, conditions, or acts shall be deemed a "Default" under this Lease: a . if Tenant fails to pay amounts due under this Lease within ten (10) days of its rec e ipt of written notice that such p::1.yments are o•:c rdue ; b. if either party fails to observe or perform ,ta obligations under this Lease and doe s not cure such failure within thirty (30) days from its receipt of written notice ofbreach t or such longer period as may be required to diligently complete a cure commenced within the 30-day period . -3 - 9, Termination . Except as otherWl tt'" provided herei n, this Leaae may be terminated, without any penalty or furth er liability •• follows : a . upon t'.!n (10) days' written noti ce in the event of a Default (aa defined above); I;. upon ninety (90) days' written notice by Tenant if Tenant is unable to obtain, maintain, or otherwise (orfeit.a or canc.e1t any lictnae, permit of Governmental Approval necessnry to the construcl.lon and/or operation of th• Antenna Facilities or Tenant'• businu1; c. upon ninety (90) days' written notice by Landlord or Tenant if the Premi11s are or become uneccept.able under Land',ord or Tenant'• desirn or eneinnring specification !' for it,1 Antenna Facilities or the commun icati ons ~y1te m to wh ich the Antenna Facilities belong; d. immediately upon written notice if the Property or the Towe r or the Antenna Faci li ties are de stroyed or damaged. In such event, all rights and obliaations of the parties shall cease as of the dote of the damage or destruction , and Tenant shall be entitled to the reimbursement of any Rent prepaid by TenanL 10. IPSIAPCZ: ■mt 5vbrogpfjgp a . Tenant will provid e Commercial General Liability in an aggregate amount of $500,000.00, naming the Landlord as an additional insured on the policy or po lici es. Tenant may satisfy this requirement by obtaining appropriate endorsement to any master policy of liability insurance Tenant. may mai ntain . ' 11. Hold Rarmle,s . Tenant agrees to hold Landlord harmless from cJa;-,,s arising from the installation, use, maintenance, repair or removal of the T1:nant's Antenna Facili ties , except for claims arising from the necligence or intentional acts of Landlord , its employees, agents or independent contractors. 12. ~ All notices , requests, demands and other communic ations hereunder sh all be in writing and shall be deemed given if personally delivered or mailed, certified mail , re turn receipt requested, or sent by overnight carrier to the following addresses : If to Landlord, to : CiLy of Englewood 3400 South Elati Street Englewood, CO 80110 Attention : Director of Utilities If to Tenant, to : Cellular One 1001 16th Street, Suite Cl Denver, Colorado 80265 Attention: Site Acquisition Manager 13 . Environmental LAWS · Tenant re presents, warrants and agrees that it will conduct its acti,;t ies on the Property in compliance with all ijpplicable Environmental Laws (as defined in attached Exhibit D). -4- Landlord represents that all future conduct of its activities on the the Property shall be in compliance with all applicable Environmental Law ■ (as defined in attached Exh ibit 0 ). 14. Anlrurncut and Sub!tlSIPf-Upon approval by the Landlord and provided Landlord's rights and Interests are not advenely affected, Tenant may assign this Le6se to any person controlling, controlled by, or under common control Mth Tenant, or an y pe rson or entity that, after first receiv'.ng FCC or state regulatory agency approvals, acquires Tenant's radio communications business and assume s all obligations of Tenant under this Lease. All assignments of this Lease must be approved by Landlord, which approval will not be unreasonably withheld. 15 . Sucr:e,SAn ond A,signs Thi s Lease sha11 run with th e Property , and shall be bind ing upon and inure to the benefit of th e parties, their respective successors, penonal representatives and assigns . 16. Waiver pf J.andlonJ's Lien -Landl ord hereby waives any and all lien rights it may have, statutory or otherwise, conc erning the Ante nna Facilitie s or any portion thereof which shall be deemed perso nal property for the purpose,, of th is Lease, reprdless of whether or not same is deemed real or personal property unde r applicable laws, and Landlord gives Tenant the right to remove all or any portion of same from the Tower from t ime to time with Landlord's consent. 17. Miscellaneous : a. Each party shall be respo nsible for its own attorney's fee,: and court costs, including appeals, if any. b. Each party agrees to furnish to the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. c. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein . Any am en dments to this Lease mu st be in writin g and executed by both parties. d. Each party agrees to cooperate with the oth er in executing a,,y documents (i ncluding a Memorandum of Lease) necessary to protect its r :ghts of the Property or Pre11ises. The Memor:\ndum of Lease may be recorded in place of this Lease, by either party. e. This Lease shall be construed in accordance with the laws of the Colorado. -5- f. If any term of this Lease i1 found to be void a· ,:I ;nvalid, 1uch invalidity shall not affect the remaining terms of this Lease , ~hich ■hall coe.tinue in full force and effect. Signed by U,e parties on the Execution Date specified on page 1. ATTEST : Patricia H. Crow, City Clerk STATE OF COLORADO ) )ss. COUNTY OF ARAPAHOE ) LANDLORD : CITY OF ENGLEWOOD, COLORADO Clyde E. Wiggins, Mayor TENANT : DENVER CELLULAR TELEPHONE COMPANY d/b,'a Cellular On e By : ___________ _ On this ___ day of ________ , 1993, before me personally appeared ____________ , known to me to be the ________ of --------~ the corporation that executed the within and foregoing instrum ent, and acknowledged the said instrument to be the free and vo luntary act and detd of said corporation for the uses and purposes therein mentioned , and on oath s tated th at _he wa s a uth ori zed to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the d ay an d ye ar first a bove written. My comm ission expi re s : -6 - NOTARY PUBLIC Address Date Novembe r 1, 1993 I ITIATID BY STAFF SOURCE COUNCIL COMMUNICATION Agenda Item 11 b Water and Sewer Board Subject Water Tower Lease Agreement with Cellular One Stewart Fonda , Director o f Utili ties ISSUE/ ACTIO 1 PROPOSED Staff seeks Co uncil ap pr val of a bill for an ordinance setti ng forth an ag reement with Cellular One to use the Englewood Water Tower for certain transmission equi p ment. PREVIOUS COUN CIL ACTION :'\o ne . BACKGROU ND Cellu lar One approached the Utilities De partment for loc ating p a nel an tennas and leasing an area fo r constructing a small building stru cture on the Sherman tank site . Cellul ar One ha s si tes at Broadway & Hampden , G ran t & Pierce , Holly & Orchard and Unh·ersity & Dry Creek . A site is necessa ry to cover the area east fro m Windermere to Colorado Boul e·:ard and south of Quincy to Orchard Road . STAFF ANALYSIS The Water Tower Lease Agreement is fo r s pace on the water tower at Sherman Street and certa in space to construct an equipment shel ter on th ~ water tower property. The antennas w o uld not affe ct our opera ti ons a nd wou ld elimim ·e the constructi on of a separa te tow e r in the area . FINA CIAL IMPACT The City will re cei ve rent in the sum of 5500 per month, pay able on the first o f each m o nth . Lease term shall be five yea rs with a n allowance for a rent increa se e qual to the Consume r Price In d ex for the Denve r Metro Statisti cal Area . BY AUTHORITY ORDINA>;CE NO . SERIES O I" 1993 A BILL FOR COUNCIL BILL NO . 57 INTROD~Y cguNCIL MEMBERHJ 1Pi 'ANCE APPROVING AN AGREEMENT BETWEEN CELLULAR ONE AND ENGLEWOOD . ce cert.ain transmission lular One will pay $500 per month relli for such location; r One and the City of Englewo 'have s pecified in a contract permitted u ses, re newa1s, avoidance of inte rference, ace , B! well as pro visions for default, termin ation, taxes, illsurance and other provis s to protect the City while allowing an essential se rvice to Ce11ular One and its custome ho also are citizens of Englewood . NOW, THEREFORE,~ IT ORDAINE Y THE CITY COUNC IL OF THE CITY OF ENGLEWOOD , COLORADO , AS FOLLOV : y of Englewood hereby approves the Cellular fwhich is attached hereto as Exhibit 1. Introduced, read in full , a passed on first reading on the !st day of November, 1993. Publi shed as a Bill for.,, Ordinance on the 4th clay of November, 1993 . aEST : tt:v~ ,&f!td Pa trici a H. Crow, City Clerk I, P~tricia H. Crow, City Clark of the City of Englewood, Colorado, hereby certify that th e above and foregoing is a true •:opy of a Bill for an Ordinance, introduce d, read in full, and passed on first reading on the I sl day of November, 1993 .