HomeMy WebLinkAboutresolution.council.105-21 RESOLUTION NO. 105
(SERIES OF 2021)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
APPROVING A LEASE BETWEEN THE CITY OF ASPEN AND NEW CINGULAR
WIRELESS,LLC (AT&T)AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID LEASE ON BEHALF OF THE CITY OF ASPEN, COLORADO.
WHEREAS,there has been submitted to the City Council a lease for the location of a
small cell wireless facility on City property on a portion of Lot A of the Rio Grande Subdivision,
also known as the Rio Grande Recycling Facility. This lease is attached as "Exhibit A".
NOW, THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO,
That the City Council hereby approves that Lease Agreement between the City of Aspen
and New Cingular Wireless, LLC (AT&T), a copy of which is attached hereto and incorporated
herein and does hereby authorize the City Manager to execute said agreement on behalf of the
City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on
the 9th day of November 2021.
Torre, Mayor
I,Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held,November 9, 2021.
Nicoll Henning, City Clerk
DocuSign Envelope ID:9874BAFD-05E9-4FOE-97AA-A61134254094
SMALL CELL LEASE AGREEMENT
This Small Cell Lease Agreement(" eement') is made and entered into as of the latest signature date
below("Effective Date")by and between Lessor and Lessee. Lessor and Lessee may jointly be referred to herein as the
"Parties"or individually,a"P="
SUMMARY OF BUSINESS TERMS
Lessor The City of Aspen
Lessee New Cingular Wireless PCS,LLC,a Delaware limited liability company
Effective Date [Fill in the latest signature date below]
Initial Term Five(5)years
Extension Terms Four(4)automatic extensions of five(5)years each
Rent $270.00 per year,commencing on the Rent Commencement Date
Rent Increase No greater than 2%percent(21/o)every five(5)years after the Rent Commencement Date
Attachment(s) Exhibit 1:Description of Leased Site
Lessor Notice The City of Aspen,Parks and Open Space Department,Parks Director, 130 South Galena
Address Street,Aspen CO 81611
With a copy to the Aspen City Attorney's Office
130 S.Galena Street,Aspen CO 81611
Lessee Notice New Cingular Wireless PCS,LLC,Attn:TAG-LA;Re:FAN: 14891488
Address Site ID:COL0680IF R02(CO), 1025 Lenox Park Blvd.NE,3rd Floor,Atlanta,GA 30319
With a copy to the AT&T Legal Department:
New Cingular Wireless PCS,LLC,Attn:AT&T Legal Dept.-Network Operations,
Re:FAN: 14891488,Site M:COL06801F R02(CO),208 S.Akard Street,Dallas,TX
75202-4206
1.GRANT OF LEASE.Lessor hereby grants Lessee a provide such services to the Leased Site.Upon Lessee's
lease of a certain portion of Lessor's real property or service company's request, Lessor will execute a
("Property') shown on Exhibit 1 to occupy, utilize, separate recordable easement evidencing this grant, at
replace or upgrade Lessor's property, structures and no cost to Lessee or the service company.Lessee and its
utility infrastructure pursuant to this Agreement service providers agree to comply with all applicable
("Leased Site").Lessee may use the Leased Site for the governmental laws, rules, statutes and regulations,
transmission and reception of communications signals, relating to its use of the Equipment on the Leased Site.
and the installation, construction maintenance, repair,
replacement, modification, upgrade, removal, and 2.TERM This Agreement shall commence as of the
operation of communications equipment and related Effective Date,and,if not lawfully terminated
improvements C' i went'). The Equipment shown sooner,remain in full force and effect for five(5)
on Exhibit 1.if any,describes the initial installation only years("Initial Term'l.The Agreement will
and does not limit Lessee's right to modify the automatically renew for four(4)additional five(5)
Equipment.Lessee and its agents shall have pedestrian year term(s)(each an"Extension Term")unless
and vehicular access twenty-four (24) hours per day, Lessee provides Lessor written notice of termination
seven(7)days per week over Lessor's property from the at least ninety(90)days prior to the expiration of the
public right of way to the Leased Site. Lessor hereby Initial Term or the then applicable Extension Term,
grants to any service company providing utility or as the case may be. If at the end of the fourth(41)
similar services, including electric power and five(5)year Extension Term this Agreement has
telecommunications, to Lessee, an easement over not been terminated by either Party by giving
Lessor's property, from an open and improved public notice of an intention to terminate at least ninety
road to the Leased Site, and upon the Leased Site, for (90)days prior to the end of such Extension Term,
the purpose of installing, operating and maintaining a this Agreement shall continue in force upon the
utility pole on the Leased Site and such lines, wires, same covenants,terms,and conditions for a further
circuits, and conduits, associated equipment cabinets term of five(5)years and for five(5)year terms
and such appurtenances thereto, as such service thereafter until terminated by either Party by
companies may from time to time require in order to giving the other written notice of its intention to sa
Small Cell Lease Agreement City of Aspen Property,2021.06 1
DocuSign Envelope ID:9874BAFD-05E9-4FOE-97AA-A61134254094
terminate at least ninety(90)days prior to end of contingent upon the suitability of the Leased Site for
such five(5)year term. Lessee's permitted use and Lessee's ability to
obtaining,after the Effective Date of this Agreement
3. RENT, BILLING AND PAYMENT. (a) and before construction of the Equipment,all of the
Commencing on the fast day of the month following the certificates,permits and other approvals that may be
date that Lessee commences construction of the required by any federal,state or local governmental
Equipment within the Leased Site (the "Rent authorities.The Parties agree that the application
Commencement Date"), Lessee shall pay Lessor and approval process for the construction of the
annually, two-hundred seventy and No/100 Dollars Equipment shall be conducted pursuant to the City
($270.00) (the "Rent"). In any partial year occurringof Aspen Municipal Code,including the City of
after the Rent Commencement Date, the Rent will be Aspen Land Use Code. Lessor shall cooperate with
prorated.The initial Rent payment will be forwarded by Lessee in its efforts to obtain such approvals and shall
Lessee to Lessor within ninety(90)days after the Rent take no action that would adversely affect the status
Commencement Date. (b)Upon the commencement of of the Leased Site with respect to the proposed use by
each Extension Term,the annual Rent will increase at Lessee.In the event that any of such applications
the election of the City,but in no case shall it increase should be finally rejected or any certificate,permit,
by more than two percent(2%)over the Rent paid during license or approval issued to Lessee is canceled,
the previous five(5)year term. (c)All charges payable expires,lapses,or is otherwise withdrawn or
under this Agreement such as utilities and taxes shall be terminated by governmental authority so that Lessee
billed by Lessor within one(1)year from the end of the in its sole discretion will be unable to use the Leased
calendar year in which the charges were incurred; any Site for its intended purposes,or Lessee determines
charges beyond such period shall not be billed by that the Leased Site is no longer technically
Lessor,and shall not be payable by Lessee.Rent is for compatible for its intended use,Lessee shall have the
the use of the Leased Site,including the portion of the right to terminate this Agreement.
property, structures, utility infrastructure and utility
service described on Exhibit 1. Rent increases by the 5.LESSOR OPERATIONS.
Rent Increase percentage described above. 5.1 RADIOFREQUENCY INTERFERENCE. Lessor
wan-ants that its use of the Property by Lessor and its
4.LESSEE OBLIGATIONS.At its own expense, employees,tenants, licensees, invitees, or agents shall
Lessee shall erect,install,repair and maintain its not cause measurable radio frequency interference, as
Equipment in safe condition and good repair in defined by the FCC, to any existing Equipment of
accordance with the requirements and specifications Lessee, other existing entities on the Leased Site, or
of all applicable laws,rules and regulations in effect adjacent landowners.
on the Effective Date.Lessee shall ensure that its 5.2 PHYSICAL INTERFERENCE. Lessor wan-ants
employees and agents which perform work in that its use of the Property by Lessor and its employees,
furtherance of this Agreement are adequately trained tenants,licensees,invitees,or agents shall be done in a
and skilled to perform the work as required by this manner that causes the least interference with the rights
Agreement.Lessee will operate its Equipment in and reasonable convenience of property owners and
compliance with all FCC regulations regarding radio residents,including minimal interference with the use of
frequency interference with the radio signal the right of way.
transmissions of Lessor and other third parties in or 5.3 REMEDIES. If Lessee reasonably determines that
upon the Property and Leased Site,which
transmissions are operated in compliance with all any such interference as described above is occurring,
applicable laws,rules and regulations.Lessee's use Lessor will meet and confer with Lessee within five(5)
of the Leased Site shall be consistent with and days of Lessor's receipt of notice of interference from
comply with all terms set forth in the Agreement Lessee,will diligently work in good faith with Lessee to
Between the City of Aspen and New Cingnlar determine the cause of the interference,and will develop
Wireless the City
o for the Use of the ingulCity' workable solutions to resolve the interference in a
Property is Connection with the Operation of a mutually acceptable manner.Lessor will not grant after
Wireless Facility(otherwise known as the"Master the date of this Agreement a lease or any right to any
ent"),unless expressly modified by third party if such third parry's use may cause physical
License A Bem
the terms set forth herein. In the event of any or radio frequency interference with Lessee's
discrepancy between the terms of the Master Equipment,Lessee's use of the Leased Site,or Lessee's
License Agreement and the terns of this ability to comply with the terms and conditions of this
Agreement,the terms in this Agreement shall Agreement.
control.
4.1 APPROVAL PROCESS. It is understood and 6. INSURANCE. Lessee shall at its sole expense
agreed that Lessee's ability to use the Leased Site is maintain, or cause to be maintained, in full force and
Small Cell Lease Agreement City of Aspen Property,2021.06 2
DocuSign Envelope ID:9874BAFD-05E9-4FOE-97AA-A61134254094
effect the following insurance coverage and limits an alleged failure to perform will be excused if due to
during the term of this Agreement: (i) Workers' causes beyond the reasonable control of the Party
Compensation and Employer's Liability insurance, as against whom the failure to perform has been alleged.If
required by statute,with Employer's Liability limits of a Party does not cure its default as allowed herein,the
$500,000 each accident, $500,000 by disease policy Party not in default may thereafter elect to pursue any
limits, and $500,000 by disease each employee; (ii) rights or remedies available at law or in equity.
Commercial General Liability insurance written on
Insurance Services Office (ISO) Form CG 00 01 or 9. VOLUNTARY TERMINATION. Lessee may
equivalent, with limits of $2,000,000 General terminate this Agreement for any reason or no reason
Aggregate, $1,000,000 Each Occurrence, $1,000,000 without further liability to Lessor at any time prior to the
Each Occurrence - Personal Injury and Advertising commencement of construction of the Equipment on the
Injury,and$2,000,000 Products/Completed Operations Leased Site.Lessee may terminate this Agreement after
Aggregate; and (iii) Business Automobile Liability the Rent Commencement Date for any reason or no
insurance of $1,000,000 Combined Single Limit for reason effective upon the later of(i)thirty (30) days'
each Accident for Bodily Injury and Property Damage, following written notice to Lessor and (ii)the date of
extending to all company owned,leased,and non-owned removal of the Equipment.
vehicles. Lessee may meet the required insurance
coverage and limits with any combination of primary
and umbrella/excess liability insurance. Lessee shall 10 REMOVAL UPON TERMINATION.
provide at least thirty(30)days advance written notice Lessee, upon termination of this Agreement, shall,
of cancellation or non-renewal of any required insurance within ninety(90)days,remove its building(s),antenna
that is not replaced. Notwithstanding the foregoing, structure(s) (except footings), fixtures and all personal
Lessee may self-insure the required insurance under the property and otherwise restore the Leased Site to its
same terms and conditions as outlined above. original condition, reasonable wear and tear excepted.
Lessor agrees and acknowledges that all of the
7. INDEMNIFICATION. equipment, fixtures and personal property of Lessee
shall remain the personal property of Lessee and Lessee
The Lessee shall indemnify,defend and hold the Lessor, shall have the right to remove the same,whether or not
its employees, officers, elected officials, agents and said items are considered fixtures and attachments to
contractors harmless from and against all injury, loss, real property under applicable law. If such time for
damage, liability (or any claims in respect to the removal causes Lessee to remain on the Premises after
foregoing),costs or expenses("Claim")arising from the termination of this Agreement,Lessee shall pay rent at
installation,use,maintenance,repair or removal of the the then-existing monthly rate, or on the existing
Equipment, any of its customers' activities on the monthly pro-rata basis if based upon a longer payment
Leased Site,or the Lessee's breach of any provisions of term, until such time as the removal of the building,
this Agreement. The indemnity provided for in this antenna structure,fixtures and all personal property are
paragraph shall not apply to any Claim resulting from completed.
the negligence or willful misconduct of the Lessor or its
employees, officers, elected officials, agents and
contractors. The Parties hereto understand and agree 11. REMOVAL, RELOCATION, AND
that Lessor is relying on and does not waive or intend to RESTORATION. Lessee acknowledges that Lessor
waive by this Agreement, any provision hereof, may require Lessee to relocate one or more of its
including the monetary limitations or any other rights, Equipment installations. Lessee shall, at Lessor's
immunities, and protections provided by the Colorado direction and upon ninety(90)days prior written notice
Governmental Immunity Act, Colo. Rev. Stat. section to Lessee,relocate such Equipment at Lessee's sole cost
24-10-101,et seq.,as from time to time amended. and expense whenever Lessor reasonably determines
that the relocation is needed for any of the following
8.DEFAULT AND REMEDIES.It shall be a default purposes:
under this Agreement if a Party fails to perform any i.if required for the construction,modification,
material tern or condition of this Agreement where such completion,repair,relocation,removal, or maintenance
failure continues for a period of more than sixty (60) of the right of way or other public property required as
days after receipt of written notice from the other Party part of a public project undertaken by Lessor or any
of a detailed description of such failure to perform. other public agency project;
Notwithstanding the foregoing, no default will be ii.because the Equipment is interfering with or
deemed to exist if a party has commenced to cure the adversely affecting operation of municipal facilities;
alleged failure to perform within such sixty (60) day iii. in the event of an emergency or when the
period, and thereafter such efforts are prosecuted to public health or welfare requires such a change.In the
completion with reasonable diligence. Delay in curing event of an emergency,Lessor is not required to submit
Small Cell Lease Agreement City of Aspen Property,2021.06 3
DocuSign Envelope ID:9874BAFD-05E9-4FOE-97AA-A61134254094
prior written notice of relocation to Lessee, but shall recordable Memorandum of Lease for this Agreement
send such notice within forty-eight (48) hours of the within fifteen (15) business days after receipt of an
discovery of the emergency. In any case, Lessor shall accurate and recordable Memorandum of Lease.
use reasonable efforts to afford Lessee a reasonable 13.4. Exhibits. In the event of any inconsistency
equivalent alternate location. If Lessee fails to relocate between the provisions of this Agreement and any
any Equipment as requested by the Lessor in accordance Exhibits attached hereto, the provisions of this
with the foregoing provision,Lessor shall be entitled to Agreement shall supersede the provisions of any such
remove or relocate the Equipment at Lessee's sole incorporated Exhibits unless such Exhibit specifies
expense,without further notice to Lessee. otherwise
13.5. Survival. The terms and conditions of this
12.CASUALTY.In the event of damage to Leased Site Agreement that by their nature require performance by
that is reasonably expected to 'disrupt Lessee's either Party after the termination or expiration of this
operations for more than forty-five (45) days, Lessee Agreement shall be and remain enforceable
may place a temporary facility,if feasible,at a location notwithstanding such termination or expiration of this
equivalent to Lessee's current use of the Leased Site, Agreement for any reason whatsoever.
with Rent abated until such time as the Leased Site is 13.6.Entire Agreement:Amendments,
This Agreement
restored and the Equipment is returned to full operation, (including the Exhibits hereto) embodies the entire
or terminate this Agreement. If the Parties agree to a agrcement between Lessor and Lessee with respect to
permanently relocated Leased Site to be shown on an the subject matter of this Agreement and supersedes all
amendment to this Agreement,Lessee may permanently prior and contemporaneous agreements and
relocate the Leased Site to the new location and the understandings, oral or written, with respect thereto.
terns and conditions of this Agreement will continue to Each Party acknowledges that the other Party has not
apply to the relocated Leased Site. made any representations other than those contained
herein. This Agreement may not be amended or
13.MISCELLANEOUS. modified orally, but only by an agreement in writing
13.1. Notices. All notices, requests and demands
signed by the Parties.
hereunder will be given by first class certified mail, 13.7. WAIVER OF JURY TRIAL. EACH PARTY
return receipt requested, or by a nationally recognized WAIVES ITS RIGHT TO A JURY TRIAL ON
overnight courier,postage prepaid,to be effective when DISPUTES ARISING FROM THIS AGREEMENT.
properly sent and received, refused or returned 13.8. Waiver. Severability. No provision of this
undelivered. Notices will be addressed to the Lessor Agreement may be waived except in a writing signed by
Notice Address and Lessee Notice Address in the both Parties.The failure of either Party to insist on the
Summary of Terms section, as appropriate. Any Party strict enforcement of any provision of this Agreement
may change its address or other contact information by shall not constitute a waiver of any provision. If any
giving written notice of such change to the other.The portion of this Agreement is found to be unenforceable,
contact telephone numbers for day to day operations are: the remaining portions shall remain in effect, and the
Lessor:970-920-5148,Lessee: 1-800-638-2822. Parties shall begin negotiations for a replacement of the
13.2. Governing Law. Both Parties shall comply with invalid or unenforceable portion.
all applicable laws and regulations.The laws of the State 13.9. Confidentiality. Lessee acknowledges that this
where the Leased Site is located will govern all Agreement is a public record within the meaning of the
questions with respect to this Agreement. In the event Colorado Open Records Act,C.R.S.§24-72-202(6)and
that any legislative,regulatory,judicial,or other action accordingly may be disclosed. Lessor acknowledges
which would materially affect any of the terms of this that,to the extent authorized by law,exhibits referenced
Agreement becomes effective, then either Party may, in this Agreement may be confidential and proprietary,
upon thirty (30) days written notice, require that such and Lessor wan-ants that it will not disclose such
terms be renegotiated, and the Parties expressly agree exhibits to any third party other than Lessor's investors,
that they shall renegotiate in good faith such mutually affiliates,consultants,professional advisors, lenders or
agreeable new terms. In the event that the Parties are assignees who are under similar confidentiality
unable to agree upon such new terns within a reasonable provisions as those contained herein; or with Lessee's
time period, then either Party may seek appropriate prior written consent; or as required by any applicable
relief with the FCC, state regulatory commission if laws.
appropriate,or a court of competent jurisdiction.Except 13.10 Assignment and Transfer. Neither Party shall
as provided in the proceeding,all terms in the existing assign this Agreement or its rights or obligations to any
Agreement shall remain in effect while the Parties are firm,corporation,individual,or other entity,without the
negotiating. written consent of the other Party,which consent shall
13.3 Memorandum of Lease. The Parties agree to not be unreasonably withheld. Notwithstanding the
execute, acknowledge and deliver to the other a foregoing,upon thirty(30)days' written notice, either
Small Cell Lease Agreement City of Aspen Property,2021.06 4
DocuSign Envelope ID:9874BAFD-05E9-4FOE-97AA-A61134254094
Party may assign this Agreement or its rights or 14.WARRANTIES.
obligations to(a)an Affiliate or(b)in connection with 14.1 Each of Lessee and Lessor (to the extent not a
the sale or other transfer of substantially all of Lessee's natural person)acknowledge and represent that it is duly
assets in the FCC market area in which the Leased Site organized,validly existing and in good standing and has
is located. As used herein,"Affiliate'means any person the right,power,and authority or capacity,as applicable,
or entity that (directly or indirectly) controls, is to enter into this Agreement and bind itself hereto
controlled by,or under common control with,that Party, through the party or individual set forth as signatory for
and as used herein"control"of a person or entity means the Party below.
the power (directly or indirectly) to direct the
management or policies of that person or entity,whether 14.2 Lessor represents, warrants and agrees that: (i)
Lessor solely owns the Property as a legal lot in fee
through the ownership of voting securities,by contract,
simple,or controls the Property by lease or license;(ii)
by agency or otherwise. Upon an assignment in
the Property is not and will not be encumbered by any
compliance with the terms herein,the assignor will be
relieved of all future performance, liabilities and liens, restrictions, mortgages, covenants, conditions,
obligations under this Agreement to the extent of such easements,leases,or any other agreements of record or
assignment. not of record, which would adversely affect Lessee's
permitted use and enjoyment of the Leased Site under
13.11 Execution in Counterparts.This Agreement may this Agreement;(iii)Lessor grants to Lessee sole,actual,
be executed in multiple counterparts, including by quiet and peaceful use,enjoyment and possession of the
counterpart facsimiles or scanned email counterpart Leased Site in accordance with the terms of this
signature, each of which shall be deemed an original, Agreement without hindrance or ejection by any persons
and all such counterparts once assembled together shall lawfully claiming under Lessor, and (iv) Lessor's
constitute one integrated instrument execution and performance of this Agreement will not
violate any laws, ordinances, covenants or the
provisions of any mortgage, lease or other agreement
binding on Lessor.
IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be duly executed as of the Effective
Date.
THE CITY OF ASPEN NEW CINGULAR WIRELESS PCS,LLC,
a Delaware limited liability company
By:AT&T Mobility Corporation
D"vftMeby: Its:Manager
0,0
By: r By: i
Sara Ott Name: Name: //��+�-e+�— )Owls
Its: city Manager Its: rr- F A I ,a ,-�^� 5reL—
Date: 11/30/2021 1 9:53:58 AM PST Date: 4-1
i
Small Cell Lease Agreement City of Aspcn Property,2021.06 5
DocuSign Envelope ID:9874BAFD-05E9-4FOE-97AA-A61134254094
EXHIBIT 1
LEASED SITE
Leased Site address:480 Rio Grande Place,Aspen,CO 81611
Leased Site pole/structure identification: New Stealth Pole
Leased Site utility identification:Connections to electrical wiring as shown on the Plans.
Lessee Site Identification:
FA/USID: 14891488/283537
Site Name:CRAN POLYGON NAME NODE 4COL0680,1F R02(ASPEN 007)
Structure Latitude and Longitude(Approximate): 39.191643°,-106.816109°
Equipment Plans: See the attached plan set dated 8/31/2021 prepared by AT&T Mobility consisting of
(10)page(s).Lessee may modify the Equipment at any time as set forth in the Agreement.
Exhibit 1